Criminal Procedure - Outline Part 14
By Collin B. Hardee
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Length of the Detention - US v. Sharpe (1985) → (distinguishing an investigative stop from a de facto arrest)
- “Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.”
- “The brevity of the invasion of the individual’s 4th Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion, we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes”
- “in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.”
- “In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.
- Court should consider whether the police are acting in a swiftly developing situation
- The question is whether the police acted unreasonably in failing to recognize or to pursue an available alternative
Seizures vs. Non-Seizure Encounters - Overarching Issue → what degree of interference with a person’s mobility must exist before a 4th Amendment “seizure” has occurred, i.e., what constitutes a “stop”?
- US v. Mendenhall (1980) Test → Established test for determining whether an encounter constitutes a 4th Amendment “seizure”: “A person has been ‘seized’ within the meaning of the 4th Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
- Following examples of circumstances that “might indicate a seizure, even where the person did not attempt to leave:’
- the threatening presence of several officers;
- the display of a weapon by an officer;
- some physical touching of the person; or
- the use of language/tone of voice indicating that compliance with the officer’s request might be compelled
“Bus Sweeps” - Florida v. Bostick (1991) → “Feel free to decline” Standard – a seizure will be deemed NOT to have occurred if “a reasonable (and innocent) person would feel free to decline the officers’ requests or otherwise terminate the encounter.”
- Remember: the normal standard necessitates a consideration of “all the circumstances surrounding the encounter. The traditional rule is a seizure does not occur so long as a reasonable person would feel free “to disregard the police and go about his business.”
- US v. Drayton (2002) → Police Need NOT Inform Passengers of Right NOT to Cooperate – Court decided that when a court answers the question “did the passengers reasonably believe they were free NOT to cooperate?” the fact that the officers failed to inform the passengers that they were free NOT to cooperate does not matter
- Therefore, most interrogations of bus passengers will probably be found NOT to be seizures, and thus not to pose 4th Amendment problems
- Significance → these two cases seem to establish that the ordinary bus-based drug-interdiction scenario – in which multiple officers, whether in uniform or not, and whether visibly armed or not, explain that they are performing a drug interdiction effort and ask each passenger for permission to search his bags and person – will not constitute a 4th Amendment seizure.
- If there is NO seizure, any consent given will be valid even though the entire procedure was done without any individualized suspicion
Pursuit by Police - California v. Hodari D. (1991) → (Does a chase itself constitute a “seizure”?) – until the suspect submits to the chase (by stopping), there is NO seizure. There will not be a seizure until two things happen:
- the suspect stops in response to the chase or to the police orders; and
- a reasonable person in the suspect’s position would believe that he was not free to leave once stopped
- Rule: where a show of authority is made to a suspect, and the suspect does not yield, no seizure takes place. “An arrest requires either physical force or, where that is absent, submission to the assertion of authority.”
- Application: Hodari rationale probably applies beyond the “chase” situation:
- officer says “freeze” or fires a warning shot;
- officer, driving a police car, puts on his flashing lights or his sirens; or
- in an airport setting, a narcotics agent approaches a group of passengers w/ his gun drawn, and announces a “baggage search”
- In any of these situations, if the suspect flees, tries to dispose of evidence, or does anything other than immediately submit, his actions will be admissible even though the initial encounter was made at a time when the police had no probable cause to make a stop or other seizure
Reasonable Suspicion – Degree of Probability Required for a Stop - Issue: What is the degree of probability of criminal conduct must exist before a stop is justified under Terry
- Flight as a Cause for Suspicion → the fact that an individual has attempted to flee when seen by the police will normally raise the police’s suspicion, and may even without more justify the police in making a Terry-style stop. The combination of flight and presence in what the officer knows is a high-crime area will generally be enough for a stop (Illinois v. Wardlow)
- Illinois v. Wardlow (2000) → the combination of D’s presence in an area of heavy narcotics trafficking, plus his “unprovoked flight upon noticing the police,” were enough to trigger a Terry stop
- Flight by itself probably NOT enough – Court does not seem to be saying that unprovoked flight, by itself, would necessarily be enough to justify a Terry stop; it is the combination of unprovoked flight plus presence in a high crime area that seemed to have created enough suspicion to justify a stop
- Tip from an Informant – Alabama v. White (1990) → When the police want to make a stop based on an informant’s tip, they may similarly do so on “reasonable suspicion,” and do not need to have probable cause. Whether the informant’s tip is reliable enough to give right to the required “reasonable suspicion” is to be determined by the “totality of the circumstances.”
- Totality of the Circumstances Test is the same test used to determine whether an informant’s tip supplies “probable cause,” but the degree of reliability needed to create “reasonable suspicion” for a stop is less than the reliability needed to furnish true probable cause
- Prediction of Future Events → when the court applies the “totality of the circumstances” test to evaluate information from an informant (especially an anonymous one) a key factor is whether the informant has predicted future events that someone without inside information would have been unlikely to know
- Tip Without Corroboration is NOT Enough – Florida v. J.L. (2000) → “an anonymous tip must provide predictive information that gives the police means to test the informant’s knowledge or credibility. Reasonable suspicion requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.”
- White Holding/Principle → an anonymous tip will be sufficiently reliable to permit a stop if and only if, prior to the stop, the police have been able to verify that the informant’s assertion that criminality is afoot is a RELIABLE one
- Low reliability + extensive corroboration = enough to create reasonable suspicion
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