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Criminal Procedure - Outline Part 23

By Collin B. Hardee

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<< Part 22 | Part 24 >>

  1. Bus Sweeps/Stops
    1. “Feel Free to Decline” Standard – a seizure will be deemed NOT to have occurred if, considering circumstances surrounding the encounter, “a reasonable (and innocent) person would feel free to decline the officers’ request or otherwise terminate the encounter.” (Bostick)
    2. Police do NOT have to inform the passengers that they have a right to NOT cooperate (Drayton)
      1. A reasonable person would feel free to leave/terminate encounter
      2. Normal Standard – Would a reasonable person feel free to “disregard the police and go about his business?”
      3. Factors:
        1. Was aisle open or blocked by police?
        2. Did police brandish weapon?
        3. Did police threaten suspect?
        4. Did police tell anyone to stay put?
        5. What was the tone of the police’s voice?
  2. Brief Seizure of Property
    1. Rule – when an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope (Place)
    2. The length of time that luggage is seized must be reasonable
  3. DNA Testing of Arrestees
    1. Rule: when officer makes an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained into custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is REASONABLE under the 4th Amendment (King)
    2. Intrusion Into Human Body – Virtually any intrusion into the human body will be an invasion of “cherished personal security” that is subject to constitutional scrutiny
    3. Allow warrantless DNA sample when:
      1. Arrest is supported by PC; and
      2. Suspect is going to be held in custody

    IV. What is Reasonable Suspicion? → Issue: What is the degree of probability of criminal conduct must exist before a stop is justified under Terry

    1. Must be able to articulate why using specific facts (specific and articulatable facts)
    2. Hunch/Feeling < Reasonable Suspicion < Probable Cause
      1. RS can turn into PC, e.g., Terry pat discovers gun, this gives officer PC
    3. Hearsay is allowed to create Reasonable Suspicion, but not PC
    4. Common Reasonable Suspicion factors:
      1. Based on training and experience
      2. High crime area
      3. Time of day
      4. Reliability of info
      5. Evasive or violent behavior
      6. Furtive/jumpy movements;
      7. Visible bulge of weapon;
      8. Officer to suspect ratio;
      9. Type of crime committed (violent v. non-violent)
      10. Criminal history
    5. 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)
      1. 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
      2. 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
      3. Reasonable Suspicion From Flight Rule: Flight + Something Else (High Crime Area) = RS
    6. 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.”
      1. 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
      2. 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
      3. 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.”
      4. 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
        1. Low reliability + extensive corroboration = enough to create reasonable suspicion
    7. 911 Anonymous Tip – Navarette v. California (2014) → Under appropriate circumstances, an anonymous tip can demonstrate sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop
      1. The reporting that the individual had been run off the road by a specific vehicle necessitates eyewitness knowledge, the basis of which lend significant support to the tip’s reliability
      2. The caller’s use of the 911 system is one of the relevant circumstances that, taken together, justified the officer’s reliance on the information reported in the 911 call
    8. Mistake of Law by Officer Leading to Reasonable Suspicion? – Heien v. NC (2014) → an officer’s misunderstanding of the law was reasonable (in view of an ambiguity in the code provision) and, therefore, there was reasonable suspicion justifying the stop of the vehicle
      1. The SC has recognized that “searches and seizures based on mistakes of fact can be reasonable, . . . and reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion [and probable cause].”
      2. Rule: RS can be based on a reasonable mistake of law & reasonable mistake of fact
        1. For Mistake of Law need:
          1. an ambiguous statute;
          2. that has not been interpreted by a court before
    9. Stop-and-Identify Statutes – Hiibel v. 6th Judicial District Court of Nevada (2004) → the principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop if request for identification was “reasonably related in scope to the circumstances which justified” the stop, i.e., a state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with 4th Amendment prohibitions against unreasonable searches and seizures.
      1. Can’t simply arrest for failure to identify – must first have a lawful stop for some other reason (e.g., assault)
      2. Rule – request for identification must be “reasonably related in scope and circumstances which justified the stop,” AND initial stop must be based on independent Reasonable Suspicion of criminal activity
      3. Stop-and-Identify Statute Test:
        1. Was there a lawful stop based on reasonable suspicion?
        2. Does the state have a stop-and-identify statute?
          1. If “yes” to both, then can arrest
    10. Policy Goal → OFFICER SAFETY; NOT preventing destruction/finding of evidence
    11. Terry Frisk v. SILA
      1. Terry Frisk
        1. RS (before arrest)
        2. Outer Clothing
        3. Justification – officer safety
      2. SILA
        1. PC leads to lawful arrest (contemporaneous w/ arrest)
        2. Full search including containers possessed at time of arrest, pockets
        3. Justification – officer safety and prevention of destruction of evidence
    12. Terry Frisks & Plain Touch Doctrine
      1. Rule → if officer, while searching for weapons, feels what he has PC to believe is a weapon, contraband or evidence, officer may expand the search or seize the object and a warrantless seizure would be justified
        1. Initial Touch Test:
          1. Officer in lawful place
          2. Officer Terry frisks outer layer of clothing; no manipulation
          3. If immediately apparent from initial touch that item is incriminating, then police can seize
            1. Can be based on officer training and experience
    13. Traffic Stop to Terry Stop-and-Frisk
      1. Question: May a police officer temporarily detain a person lawfully on a traffic violation, and then use this opportunity to conduct an investigation unrelated to the reason for the original traffic violation? (Rodriguez)
        1. YES – a routine traffic stop is comparable to a brief Terry stop
      2. Rule: Can’t prolong traffic stop beyond purpose of original stop UNLESS officer has Reasonable Suspicion of crime beyond traffic violation
        1. Police should call dogs at beginning of traffic stop to prevent prolonging stop
      3. As part of a stop, ordinary inquiries incident to a traffic stop, e.g., checking the driver’s license, determining whether there are any outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance – are permitted
        1. The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether the conducting the sniff ‘prolongs’, i.e., adds time to the stop”
    14. Moving Suspects & Making Them Get Out of Car
      1. After a suspect is stopped for traffic violation, i.e., detained, the officer may order the driver out of the car without further justification (Mimms)
      2. An officer may order a passenger of a car to also get out of the car without further justification (Wilson)
    15. Terry Seizures v. De Facto Arrests – Station House Seizures In Formal Custody
      1. In order to lawfully bring a suspect into formal police custody and interrogate him at the police station (e.g., forcibly removing a person from their home or other place), the police must have Probable Cause (Hayes)
        1. Such station-house detention, even though brief and unaccompanied by interrogation, is “sufficiently like an arrest to invoke the traditional rule that arrests may be constitutionally be made only on probable case.”
      2. Probable cause is necessary for a station-house detention accompanied by interrogation, even if no formal arrest is made (Dunaway)
      3. Police must have probable cause to require a suspect to come to the station for fingerprinting (Hayes)
      4. De Facto Arrest Factors:
        1. Placed in police car?
        2. Taken to police station?
        3. Placed in interrogation room?
        4. Not told free to leave?
        5. Booked?
        6. Fingerprinted?
        7. Length of Time?
    16. Length of Detention – Investigative Stop vs. De Facto Arrest
      1. A Terry stop can last only as long as necessary to determine diligently whether crime is happening or going to happen (Sharpe)
      2. “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.”
        1. Court should consider whether the police are acting in a swiftly developing situation
        2. The question is whether the police acted unreasonably in failing to recognize or to pursue an available alternative
      3. “In evaluating whether an investigative detention is unreasonable, common sense and human experience must govern over rigid criteria.”

    V. Protective Sweeps

    1. Where an arrest takes place in the suspect’s home, the officers may conduct a protective sweep of all or part of the premises, if they have a “reasonable belief” based on “specific and articulable facts” that another person who might be dangerous to the officer may be present in the areas to be swept. (Buie)
      1. SILA of closets and spaces immediately adjoining arrest where person could be found, AND
        1. REMEMBER: Only search where a person could be found; not a full investigatory search of all sized containers
      2. Sweep of entire house (where person could be found) if RS to believe somebody else is present
        1. Rule: After arrest (police mistakenly think this is automatic) CAN do protective sweep but it is NOT automatic. Must have some RS that someone else is in the house.
          1. Protective Sweep = QUICK and CURSORY, i.e., a “protective sweep” is a quick and limited search of premises incident to arrest, and is conducted to protect the safety of the arresting officers or others
            1. It is NOT a full search of the premises, but may extend “only to a cursory inspection of those spaces where a person may be found hiding.”
          2. Reason: Based on officer safety.
          3. Plain view: (1) Lawfully there (2) Lawful right of access (3) immediately apparent
        2. Requirements: In order to search the rest of the house, need articulable facts supporting a reasonable suspicion that someone else is in the house
    2. Adjacent Spaces → “Specific and articulable facts” are NOT needed for the officers to search in closets and other spaces immediately adjoining the place of an arrest, to make sure that no possible attacker lurks there
      1. This may be done as a precautionary measure, even where there are no specific facts suggesting a risk of attack, and does not count as a “protective sweep”
    3. Summary:
      1. May search the person, containers on the person, and everything in the person’s immediate grabbing area incident to a lawful arrest
      2. As an incident to the arrest (SILA) the officer can, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched
      3. Searching the rest of the house for person - There must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene
      4. A protective sweep, aimed at protecting the arresting officer, is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found
        1. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises
    4. Car Frisks/Sweeps
      1. General:
        1. Police may ordinarily search a car without a warrant if they have PC to do so
        2. Police may search portions of the car as SILA of a car occupant (or a recent occupant), even w/o PC
        3. Police may order driver/passengers out of an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is reasonable belief they are armed and dangerous (Mimms)
        4. The police, acting on an informant’s tip, may reach into the passenger compartment to remove a gun from a driver’s waistband even where the gun was not apparent to police from outside the car and the police knew of its existence only b/c of the informant’s tip (Adams v. Williams)
      2. Rule: Search of passenger compartment of a car, limited to areas where a weapon may be, is permissible if the police have a reasonable belief based on “specific and articulable facts” that reasonably would lead the officer to believe the suspect is dangerous and may gain immediate control of weapons (Long)
        1. This is QUICK search, looking for potential weapons
      3. Requires: Need Reasonable Suspicion that suspect poses a danger & may gain control of weapons in car
        1. NOT necessarily danger from the currently arresting crime
      4. Limitations:
        1. Can’t open glovebox, sealed containers, etc.
      5. Plain View Doctrine applies
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