Contemporary Legal Issues Exam 2

U.S v. Hill (1996)

"a de facto arrest occurs when the officer conduct is more intrusive than necessary for an investigative stop..." ▪ Factors to Consider Include: -Duration of the Stop -Location and condition of ∆ -Officers Actions ◾Intimidation or show of force ◾"the degree of fear and humiliation that the police conduct engenders.

anticipatory search warrants

- based on probable cause that evidence relating to a certain crime will be at a specific place in the future. They are valid only if: -there is probable cause to believe that contraband will be found if a specific triggering event occurs -there is probable cause to believe that the triggering condition will, in fact, occur

Defining "Frisk"

-A frisk is a limited search of a person's body consisting of a careful exploration or pat-down of the outer surfaces of the person's clothing in an attempt to discover weapons. -A frisk protects the officer and others from possible violence by persons being investigated for crime.

Scope of a Frisk

-A frisk must initially be limited to a pat-down of a person's outer clothing. -If a weapon or weapon-like object is detected or if a non-threatening object's identity as contraband is immediately apparent to an officer's sense of touch, the officer may reach inside clothing or a pocket and seize the object. -Non-threatening contraband (i.e., drugs) must be immediately apparent to an officer's sense of touch, and the officer must have probable cause, upon feeling the object, that the object is this kind of contraband.

Information from Known Informants

-A law enforcement officer may stop a person based on an informant's tip if, under the totality of the circumstances, the tip, plus any corroboration of the tip by independent police investigation, carries enough indicia of reliability to provide reasonable suspicion of criminal activity. -See Adams v. Williams (p. 378)

Information from Police Flyers, Bulletins, or Radio Dispatches

-A law enforcement officer may stop a person on the basis of a flyer, bulletin, or radio dispatch issued by another law enforcement agency as long as the issuing law enforcement agency has a reasonable suspicion that the person named in the flyer, bulletin, or dispatch is or was involved in criminal activity.

Authority to Stop

-A law enforcement officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts of ongoing, impending, or past criminal activity. -Reasonable suspicion is less than probable cause. -Reasonable suspicion may develop based on logical deductions from human activity based on an officer's observations, knowledge, experience, and training (not a mere hunch). -COMPARE Rodriguez (p. 367) to Royer (p. 368) to get an idea of where the 4th Amendment line might be.

Seizures Tantamount to Arrest

-Also called "De Facto Arrests" -Sometimes the 1st element of a Formal Arrest is missing - an officer, despite outward actions, might not actually intend to take ∆ into custody. -In order to protect ∆'s constitutional rights, the Courts have determined that, despite the missing element, they will analyze the case using the constitutional protections that apply to arrests.

Information from Anonymous Informants

-An anonymous tip that a particular person at a particular location is carrying a gun is not, without more information, sufficient to justify law enforcement officers in stopping and frisking that person. (FLA v. J.L., p. 380) -For a successful search using anonymous informants, see AL v. White (p. 379) - uses Gates and cites standards in Aguilar/Spinelli - but the detail and corroboration aren't as high as Gates. Why? Because RS is a lesser burden than PC, and Gates involved a PC burden of proof.

Permissible Scope of a Stop

-An investigative stop must last no longer than is reasonably necessary and must use the least intrusive methods reasonably available to confirm or dispel an officer's suspicions of criminal activity. -RE Time of stop, See Sharpe (p. 391) - 20 minute stop upheld, but the real issue is whether the delay was justified.

History of Stops and Frisks

-An officer's power to detain and question suspicious persons dates back to English common law. -The U.S. Supreme Court adopted formal guidelines governing street encounters amounting to less than arrests or full searches in three 1968 cases. -Terry v. Ohio (Pat-Downs for safety/weapons) -Sibron v. New York (no suspicion of weapons -> no fruit) -Peters v. New York (susp.behavior -> Reas.Suspicion)

Limited Authority to Frisk

-Frisks are based on reasonable suspicion. ◾The officer must have reason to believe that the individual is armed and dangerous. -Justification to frisk usually requires a combination of one or more factors, evaluated in the light of an officer's experience and knowledge.

Scope of a Frisk of Motor Vehicle Occupant

-If a law enforcement officer has a reasonable suspicion that a motor vehicle's occupant is armed and dangerous, the officer may frisk the occupant and search the passenger compartment of the vehicle for weapons. -The officer may look in any location in the passenger compartment that a weapon could be found or hidden. -The officer may also seize items of evidence other than weapons, if discovered in plain view during the course of such a search.

The Three Foundational Cases

-In Terry v. Ohio, Sibron v. New York, and Peters v. New York (1968), the court applied a balancing test under the reasonableness requirement of the Fourth Amendment. ◾In Terry v. Ohio, the Court recognized the officer's need to protect themselves when suspicious circumstances indicate possible criminal activity by potentially dangerous persons, even if probable cause is lacking. ◾Stops and frisks are more limited than a full search and are judged by a less rigid standard than probable cause. Reasonable Suspicion is all that is needed.

Differentiating Stops as Seizures from Non-Seizures

-Not all stops are seizures. ◾The Supreme Court in United States v. Mendenhall (1980) established the free to leave test—a "totality-of-circumstances" approach that assesses whether or not a reasonable person would have believed that he was not free to leave. ◾Only when an officer intentionally, by means of physical force or show of authority, has restrained a person's liberty has a "seizure" occurred. Also, for a seizure to occur, the person being confronted by the officer must have submitted to the officer's authority or force. ◾SEE BRENDLIN V. CALIFORNIA (Resources)

Performing the Arrest

-PC is the Key! Actual Guilt or innocence doesn't matter. -If the officer has PC to believe a crime has occurred (or is), then arrest. -Generally may be done with or without an arrest warrant - if PC exists. -Misdemeanors vs. Felonies - majority of states require that the crime happen "in offficer's presence" for a warrantless misdemeanor arrest(See Jaegly - p. 318).

Arrest in the Home

-Payton v. NY (1980) - routine felony arrests do not, in and of themselves, justify entry into a residence. -You must have Exigency or Consent. -OR - You could have an arrest warrant AND "reason to believe the suspect is within". -Courts allow a rebuttable presumption that suspect is home during certain hours (See Magluta p.326)(arrest made between 5:30 and 6 p.m.)

Bases for Forming Reasonable Suspicion

-Reasonable suspicion may also be derived from: -Information from known informants -Information from Anonymous informants -Information from police flyers, bulletins, or radio dispatches -Knowledge of Criminal History

The Reasonableness Standard

-The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no -----Warrants shall issue, but upon probable cause... -Determination of the reasonableness of stops and frisks involves balancing the right to privacy and right to be free from unreasonable searches and seizures against the governmental interests of effective crime prevention and detection and the safety of officers and others from armed persons. -The Terry Test 1) Reasonableness (both scope and basis) 2) Suspicion of Weapon

Exceptions to Administrative Warrant Requirements

-Under Burger (1987)(p.250) warrantless inspections of licensed and closely regulated enterprises are reasonable if: -A "substantial" government interest supports the regulatory scheme under which the inspection is made Warrantless inspections are necessary to further the regulatory scheme -The regulatory statute provides a constitutionally adequate substitute for a warrant by advising the owner of commercial premises that the search is being made pursuant to the law, has a properly defined scope, and limits the discretion of the inspecting officers.

Special Warrant Requirements for Administrative Searches

-Until the Camara decision in 1967, administrative searches weren't subject to 4th Amendment review (See p. 249). -Camara did point out, though, that the probable cause standard for administrative searches differs in nature and is less stringent than the standard for criminal searches. -The Collonade Catering line of cases attempted to define specific instances that are excepted from even less stringent standards: Liquor/Gun Dealers, Mines, Junkyards, and other Licensed Businesses.

sneak-and-peak warrants

-a covert entry warrant authorizes officers to enter unoccupied premises, search for specified evidence, and then leave, without seizing the evidence they find and without leaving a trace that an entry has been made -a "sneak-and-peak" warrant is justified when: -officers need to determine whether certain evidence is on the target premises -officers reasonably believe that suspects would disrupt the investigation by destroying evidence -items may be seized if it is "reasonable necessary". This is called sneak and steal

scope and search

-a search under authority of a search warrant may extend to the entire premises described in the warrant, but only to those parts of the premises where the items to be seized might be concealed -the search must be conducted in a manner to avoid unnecessary damage to the premises or objects -items not named in the warrant may be seized if all elements of the plain view doctrine are satisfied -people may be temporarily seized to secure premises

who may excuse a search warrant

-a search warrant is directed to a particular officer or class of officers -usually, only the named officers or a member of the named class of officers may execute or serve the warrant -normally, the named officer must be personally present at the search -if a warrant is directed to a sheriff, a deputy may execute the warrant and the sheriff need not be present -there are a narrow set of circumstances in which a search warrant may be executed by a civilian even outside the presence of a police officer

Who may issue search warrants?

-an issuing magistrate for a search warrant must be 1. neutral, detached 2. capable of determining whether probable cause exists for the requested search -e.g. state attorney general is not neutral -e.g. judge who "rode in" with officers isn't detached -e.g. shadwick-clerk okay for PC in class C's

notice requirements

-before entering premises by force to execute the warrant, officers must knock and announce their authority and purpose and wait about 10-30 seconds before entering. This is done to" -prevent violence -protect the privacy of the occupants of the premises -prevent property damages -give the occupant an opportunity to examine the warrant and point out a possible mistakes -violations may result in police civil liability

protecting public safety

-certain governmental activities aimed at protecting public health, safety, and welfare have a long history of regulatory enforcement -regulatory enforcement is quite different from criminal investigation--- look to the purpose of the search -the usual strictures of the fourth amendment have been modified to allow for more flexible enforcement of public safety laws

grounds for issuing search warrants

-magistrates must have probable cause to believe that items subject to seizure are in a particular place or on a particular person at the time of the issuance of the warrant -the affiant tries to establish probable cause in affidavit (see whitley) -warrants must describe with particularity "the place to be searched and the persons of things to be seized" -e.g. houses, apartments, vehicles, mail, email, persons -beware of staleness

administrative searches

-not a criminal search. It is a routine inspection of a home or business by governmental authorities responsible for determining compliance with various statutes and regulations -It seeks to enforce things like fire, health, safety, and housing codes and licensing provisions. - OSSF -An administrative search ordinarily does not result in a criminal prosecution. - (instead: Fines, Suspensions, Revocations, etc.).

exceptions to know-and-announce rule

-officers may enter without notice in certain cases: -exigent circumstance -entry by rule or deception -if police presence and purpose is already know -if a no-knock warrant is secured

time considerations

-officers must conduct the search within a reasonable time after the warrants issuance and within any time period specified by law of court rule -avoid going stale (US v Hython) -generally, warrants must be executed during the day: nighttime searches should be authorized by the court -the length of time for the search must be reasonable -the search is over once the specified items are found -4 corners doctrine ----> no rehabilitation by testimony

items subject to seizures

-the types of property allowed to be siezed inder a search warrant are: -evidence of a crime -contraband -fruits of crime -other items illegally possessed -instrumentalities of crime -a person to be arrested -a person who is unlawfully restrained

search and seizure

-think of the 4th amendment in terms of a persons expectation of privacy (katz) in his/her own person and in his/her own belongings -_________________ can be for people of property -arrest warrant ----> seizure of a person -search warrant ----> seizure of property

What is a search warrant?

1. an order in writing 2. issued by a proper judicial authority 3. in the name of the people (the state) 4. directed to law enforcement officers 5. commanding the officer to search for and seize certain personal property 6. commanding the officer to bring that property before the judicial authority named in the warrant

U.S. v. Grubbs (2006)

Anticipatory Warrants: anticipatory warrants are constitutional. Received package of child pornography. Riccardelli

N.Y. v. Burger (1987)

Closey Prong test

Payton v. N.Y. (1980)

Court case concerning warrantless entry into a private home in order to make a felony arrest

a de facto arrest

Event though an officer may not have the intention of performing an arrest, Courts sometimes find that one occurred anyway. This is called:

Brendlin v. CA

Everyone gets stopped in a car Expired expection sticker, she had a temporary sticker and so the stop shouldve been done.

Formal Arrest

Four Basic "Elements" 1) officer must intend to take ∆ into custody 2) officer exercises authority 3) ∆ must be taken into custody by force or by assertion of authority 4) ∆ understands officer's intention to arrest *-- the law distinguishes between a "Stop", which is a brief detention, and an "Arrest" which consists of the elements, above. *-- Arrest (Seizure of a Person) is usually sparked by a single act or set of acts. The question remains whether a person is "under arrest" at a later time.

Franks v. Delaware (1978)

Franks redact the false information and deal with the rest

U.S. v. Hill (1996)

Thomas tires on the side of his truck hill is man from Cali Locked glovebox, driver said he didn't have the key Police took their truck and drove the guys home Claims he was put under de facto arrest

stop

a ______________ is the least intrusive type of seizure of a person under the fourth amendment

administrative search

a(n) ______________________ is a routine inspection of a home or business by governmental authorities responsible for determining compliance with various statutes, regulations and ordinances.

Collonade Catering v. U.S. (1970)

closely regulated businesses, Camara standard of warrant isn't there anymore because big business have no privacy. Standard for warrants goes down as well

content of search warrants

contain: -caption/division of the issuing court -particular description of the place or person to be searched -particular description of the property to be seized -names of persons who gave supporting affidavits -statement of grounds for issuance of the warrant -name/class of officers to whom the warrant is directed -a command to search the place/person named for the property specified -when the search may be conducted -name of the judicial officer to whom the warrant is to be returned -date of issuance -signature of the issuing magistrate

U.S. v. Hython (2006)

example of 4 corners doctrine lady in possession of drugs, shows police a controlled buy, they get a warrant and forget to put the date on it on which they did the controlled buys and therefore the warrant goes stale

Camara v. Municipal Court (1967)

guy sleeping in back of business administrative search, there is a constitutional standard and there is a need for a warrant

U.S. v. Magluta (1995)

justified presumption about time people are home went to guys house at 6pm, he jumped out the window and sprained his ankle

Shadwick v. City of Tampa (1972)

neutral and detached

Florida v. J.L. (2000)

police officers may not conduct a stop-and-frisk search based solely on an anonymous tip

Andreson (1976) / Gouled (1921)

search of papers is not a violation of your 5th amendment to remain silent

search warrants

the law governing _____________________ is based on the guarantees in the fourth amendment to the U.S. constitution

Jaegly v. Couch (2006)

Admission of guilt

U.S. v. Carey (1999)

Nontestimonial Evidence: the consent a defendant had given to police for his apartment to be searched did no extend to the search of his computer once it was taken to the police station. Particularity

must follow knock and announce requirements

Officers about to execute a search warrant for narcotics in a dwelling...

Sibron v. N.Y. (1967)

Police stuck his hand in pocket

Terry v. Ohio (1968)

Supreme Court decision endorsing police officers' authority to stop and frisk suspects on the streets when there is reasonable suspicion that they are armed and involved in criminal activity

franks hearing

-evidence seized under the warrant may be suppressed through the exclusionary rule in a procedure know as franks hearing -allegation of falsity is a insignificant to trigger a franks hearing, rather, the defendant muse make a prima facie showing that the affiants reckless disregard for the truth -burden of proof is intentionally on the defendant -offending material will be severed (stricken) from the warrant -US v Christine, 1982

material misrepresentations and omissions

-if a law enforcement officer knowingly and intentionally, or with reckless disregard for the truth, makes false statements or material omissions in an affidavit supporting a result for a search warrant, the warrant may not be lawfully issued -if the warrant does issue, evidence seized under the warrant may be suppressed by application of the exclusionary rule in a procedure know as franks hearing

Whitely v. Warden (1971)

4 corners doctrine whatevers in there need to be good enough to stand on its own

Terry V. Ohio

In which of the following cases did the courts recognize the need for law enforcement officers to protest themselves when suspicious circumstances indicate possible criminal activity afoot by potentially dangerous persons, even though probable cause to arrest may be lacking?

Exigent Circumstances

Includes: Risk of destruction to evidence ◾Welsh - suspect left vehicle in field. Officers should not have pulled defendant from home on suspicion of DWI -Hot pursuit -Threat to individual safety -Likelihood of a suspect's escape ◾Bowe - if you want to claim this exigency, then don't surround the home and secure the scene!

may reexamine the factual basis, and determine whether the remaining evidence establishes probable cause

It is discovered that a search warrant was issued based on some exaggerations by the applying officer of the factual basis for the warrant. The magistrate in a Franks hearing.......

false

Requesting identification of an airline passenger is considered a "seizure" within the meaning of the fourth amendment.

U.S. v. Mendenhall (1980)

Respondent suspiciously walked through Detroit Metropolitan Airport in a manner resembling a drug courier profile. Respondent VOLUNTARILY searched and found in possession of heroin.