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Criminal Procedure Outline - Professor Fields - Campbell Law - Part 4

By Justin B. Lockett
Professor Fields - Fall 2020

Download the PDF version of this outline

<< Part 3 | Part 5 >>

Consent
  • Test; Schneckloth v. Bustamonte: Whether a consent to a search was in fact “voluntary” or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances.
    • Voluntariness: “Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge of a prerequisite to establishing a voluntary consent.”
    • Limited: Consent can be limited in time and place (can consent to search of kitchen but not bedroom).
    • Withdrawal: Consent can be withdrawn, but must be done so unambiguously.
    • Race (State v. Bartlett): Race is a relevant factor in the analysis in NC courts.
  • Co-tenants, One Absent; Matlock v. United States: The consent of one who possesses common authority over the premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.
    • Common Authority: “Rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”
      • Reasonableness Test; Illinois v. Rodriguez: Common authority is a reasonableness test. The officers do not have to have all of the facts correct, but only reasonably believe that the consenting person had common authority of the premises or effect.
    • Exception: “So long as there is no evidence that the police have removed the potentially objecting tenant form the entrance for the sake of avoiding a possible objection.”
  • Co-tenants, Both Present; Georgia v. Randolph: A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent.
    • Absent: A person does not have to be very far away to be deemed absent (can be in the backyard, or literally asleep in the other room).
    • Roberts, Dissenting, False Friends Doctrine Reasoning: “If an individual shares information, papers, or places with another, he assumes the risk that the other person will in turn share access to that information or those papers or places with the government.”
    • Fernandez v. California; Limited Rule: “Consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search.” Randolph is a narrow exception and “went into great lengths to make clear that its holding was limited to situations in which the objecting occupant is present.”
Terry Doctrine; Reasonable Suspicion Standard

Terry v. Ohio: A police officer can seize a person and subject him to a limited search for “weapons” on nothing more than reasonable suspicion.

  • Balancing Test; Camera v. Municipal Court: “There is no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.”
    • Particularity Requirement (Terry): In justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusiton.
    • Reasonableness Standard: Whether the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate.”
    • Weapons Only Rationale: “The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”
Stop and Frisk (More Specific)
  • STOP: To initiate an investigative seizure (to make a stop) the officer must have reasonable suspicion that criminal activity is afoot.
    • May initiate an investigative seizure if the officer has reasonable suspicion, supported by specific and articulable facts and all rational inferences, that the suspect is engaged in criminal activity.
  • FRISK: Only a “protective frisk” for weapons
    • Test: My conduct a protective frisk of the outer clothing if the officer has reasonable suspicion, supported by specific and articulable facts, that the suspect is armed and presently dangerous.
      • 4th Circuit Rule: If someone is armed, they are automatically deemed presently dangerous.
    • U.S. v. Hensly: Extends terry doctrine stop and frisk to cases where officer has reasonable suspicion that the individual has already completed a felony. Court left open the question of completed misdemeanors.
    • Don’t Forget Plain Touch Doctrine: If you can “Immediately” determine something you touch is contraband, you may seize it.
Reasonable Suspicion Standard
  • Test: Totality of the circumstances. Each factor in isolation may not be enough but, taken together, they may paint a different story.
    • Common Factors: Smell of drugs, lying/inconsistent stories, unusual travel plans, presence in a “high crime area,” unprovoked flight, “furtive movements (quick and out of the ordinary),” nervousness (or lack of nervousness), making eye contact with an officer (or not), officer training and experience.
    • What it’s Not: Not an “inchoate and unparticularized suspicion or hunch.” And not a suspicion based on activity that “sweeps in a broad category of innocent people.”
    • Broad Use: Substantively can justify stops and frisks on reasonable suspicion that ny minor offense is being committed (minor traffic offenses, etc.).
    • Common Sense: Really use common sense judgments when determining reasonable suspicion.
  • Reasonable Suspicion from Anonymous Tips; Illinois v. Gates: The court adopted a “totality of the circumstances” approach to determining whether an informant’s tip establishes probable cause, using the “veracity, reliability, and basis of knowledge” elements from Spinelli and Aguilar as the main factors.
    • Same Factors for Reasonable Suspicion: “These factors are also relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard.”
      • Quantity and Quality: “Both factors—quantity and quality—are considered in the ‘totality of the circumstances—the whole picture,’ that must be taken into account when evaluating whether there is reasonable suspicion.”
      • Reasoning: “Just because an anonymous tip alone is not enough to establish probable cause, that doesn’t mean it is not enough to establish a reasonable suspicion. The tip was not as detailed as the one in Gates, and the corroboration was not as complete, but the required degree of suspicion was likewise not as high.”
        • Keep in Mind; Testilying: “In addition, under the Court’s holding, every citizen is subject to being seized and questioned by any officer who is prepared to testify that the warrantless stop was based on an anonymous tip predicting whatever conduct the officer just observed.”
  • Florida v. J.L.; No Prediction of Future Events: “The tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court’s decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility. All police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. If White was a close call on the reliability of anonymous tips, this one surely falls on the other side of the line.”
  • Navarette v. California; 911 Calls: Anyone who makes a 911 call, anonymous or not, will automatically qualify for reasonable suspicion as long as there is basis of knowledge.
  • Traffic Stops Without Tips: An officer can also stop a vehicle based on personal observation of potentially illegal activity; (1) reasonable suspicion of criminal activity; or (2) probable cause to stop for a traffic infraction.
    • If (1): The usual reasonable suspicion rules apply.
    • If (2): Officer must develop reasonable suspicion of other criminal activity to justify prolonging the stop (or seek consent to search).
  • Wardlow v. Illinois: Presence in a “high crime area” plus unprotected flight equals reasonable suspicion.
    • Justice Stevens, Dissenting: “The inference we can reasonably draw about the motivation for a person’s flight, rather, will depend on a number of different circumstances. Factors such as time of day, the number of people in the area, the character of the neighborhood, whether the officer was in uniform, the way the runner was dressed, the direction and speed of the flight, and whether the person’s behavior was otherwise unusual might be relevant in specific cases.”
Seizures of Persons

Dunaway v. New York; Seizure-in-fact: “Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was ‘free to go.’; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody.”

  • Arrest Doesn’t Need to be Declared: “The application of the 4th Amendment’s requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an ‘arrest’ under state law. The mere facts that petitioner was not told he was under arrest, was not ‘booked,’ and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, obviously do not make petitioner’s seizure even roughly analogous ot the narrowly defined intrusions involved in Terry and its progeny.”
    • See also Florida v. Royer: “We have concluded that at the time Royer produced the key to his suitcase, the detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity” (he was detained in a room at the airport and had his, luggage, plane ticket and I.D. taken because he matched a drug courier profile) . . . . “Royer was never informed that he was free to board his plane if he so chose, and he reasonably believed that he was being detained.”

Pennsylvania v. Mimms; Ordering Drivers out of Cars: “Balancing the competing interests, the Court ruled that when an officer legally stops a driver on the highway, he may order the driver out of the car without further justification. It described the interest in police safety as ‘legitimate and weighty.’ On the other side of the scale is the driver’s interest, having them lawfully stopped, to be permitted to stay in his car.”

Maryland v. Wilson; Passengers in Cars: “On the public interest side of the balance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger.”

United States v. Sharpe; Extended Terry Stops: Obviously, if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.

  • Factors to Consider if Terry Stop is Rightfully Prolonged: (1) The law enforcement purposes to be served by the stop, (2) the time reasonably needed to effectuate those purposes, (3) whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly (this is the important one), and (4) the actions of the suspect in prolonging the stop.

United States v. Mendenhall; The Test for Seizure: “We adhere to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.”

  • Reasonableness Standard: “We conclude that a person has been ‘seized’ within the meaning of the 4th Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”
    • Factors: Threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
  • But See United States v. Hodari D.: A show of authority followed by a fleeing form that continues to flee cannot constitute a “seizure.”
    • Rule: “An arrest requires either physical force or, where that is absent, submission to the assertion of authority.”

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