Probable Cause, Warrants, Arrests, Search and Seizure

A warantless search is . .

. . . presumtively unreasonable

Mistake of Law, Reasonable Suspicion.

A Reasonable Mistake of law may support reasonable suspicion, if a reasonable person reading the actual law might have been confused.

For Reasonable Suspicion, what is the effect of information that undermines anonymity.

It supports the veracity, someone is less likely to lie if they can be easily identified.

Low Speed Chase, is that submission?

No

Draper, Facts.

Officer was approached by

Antecedent Warrant Requirement

Probable case must be based on the facts before the warrant was granted, an officer cannot go back after the fact to fill out the details.

Specificity Requirement

The government must specify the objects and persons they have an interest in.

Whether an arrest is lawful under the Fourth Amendment when an objective criminal offense for which there is probable cause is not closely related to the subjective offense stated by the officer at the time of arrest.

Yes, The subjective reason for making the arrest need not be the criminal offense to which the known facts provide probable case, we construct a legal fiction of an officer who correctly knew the law.

May the police frisk an area other than the defendant's person.

Yes, if they have a reasonable suspicion that weapons may be accessible to the defendant.

Stop, Chase

Hodari D. A stop does not occur if you command someone to stop and they run away, there must be a submission to a non-physical show of authority. Therefore, the drugs the guy threw away during a chase was not subject to 4th A.

Warantless arrest, public place, type me

If an Officer (1) has probable cause to thing that a person has committed a felony, or that they have committed a felony or misdemeanor in their presence, and (2) that person is in a public place then the officer may make an arrest without a warrant.

Physical Scope of a Stop and Frisk

If the officer has reason to believe the suspect is armed and dangerous, he may perform a protective pat down, and reach inside of the clothes if he feels what could be a weapon.

What is an Arrest Warrant?

Judicial Authorization for police to arrest a particular person.

What must a search warrant have?

This type of warrant must include a 1) a description of the items to be sought, 2) descriptions of the place to be searched, 3) the facts supporting probable cause that evidence of a crime will be found according to (1) and (2)

When reviewing the determination by a magistrate what should you ask?

Whether the magistrate had a "substantial basis" for concluding that there was probable cause.

Probable cause is more than __________ but less than _________

a reasonable suspicion but less than beyond a reasonable doubt.

Four Warrant Requirements

1) Proof Requirement. The government must demonstrate a factually-based interest in persons, places, or things through probable cause. 2) Oath or Affirmation. 3) Antecedent Warrant Requirement 4) Specificity Requirement

Two Factual Considerations in Probable Cause Determination.

1) The Facts Being Presented to Us 2) The Reliability of the Person speaking.

How do we resolve the tension between Navarette

1) claiming direct knowledge 2) call made shortly after incident

The Augilar-Spinelli Prongs

1. Veracity. Facts showing that the witness making the statement is in someway reliable. 2. Basis of knowledge. How does this person know what they know.

Pretextual Stop

A valid stop for x that is in fact motivated by y.

Lender (9th Cir.)

A case from which you can argue at the margins. No submission when defendant was backing away as cops tried to talk to him saying "you don't want me, you don't want me", stopped monetarily, and gun fell from waist as he fumbled about. . . it was clear that his behavior was a ruse in an attempt to go for a weapon or get the weapon off of him.

"Show Up" Identification

A form of a stop whereby the officer forces movement over a short period of time for the purpose of identification.

Menhenhall Test*

A person is seized only if, in view of all the circumstances, a reasonable person would not have believed that they were free to leave.

Temporal Duration of a Stop and Frisk

A stop and frisk can last no longer than is necessary to confirm or deny the initial reasonable suspicion of the police. Once the suspicion was been dispelled, the person must be free to leave.

Finger Prints, Stop

A suspect may not be forced to go to a police station for questioning or fingerprinting absent probable cause, however, if the fingerprinting is done in the field rather than at the station, it might be justified based on a "reasonable suspicion"

What is a Stop?

A temporary seizure of a person that stops short of an arrest, for the purpose of clarifying an ambiguous situation that the officer may have observed. It may not be used for evidence gathering purposes or to put pressure on a suspect.

Where does Reasonable Suspicion fall on the scale or reliability?

More than a hunch but less than probable cause.

Where does Probable Cause fall on a scale of reliability?

More than a reasonable suspicion but much less than beyond a reasonable doubt.

Would the basis of knowledge prong from an informant be supported by the statement "I saw a stolen object"

No, an informants statement alone does not support the content of the statement.

Is a dog sniff of luggage a search?

No, this is not a search because it could only implicate illegal activity for which there is no reasonable expectation of privacy.

Is forced movement into a custodial area always an arrest?

No.

Does an officer have an automatic right to perform a pat down during a traffic stop?

No. There must be some reason to believe that the person is armed and dangerous.

If a trained and certified dog alerts to drugs, is there probable cause?

No. We would also need an explanation of the dogs training records, field performance records of that dog, evidencing concerning the experience of the cop handeling the dog.

Maryland v. Pringle, 540 U.S. 366 (2003) - - Facts of

Officer Stops Car for speeding. It has three occupants, driver, front seat passenger, back seat passenger. Officer sees a was of rolled up money, gets consent to search the car. Discovers $763 in the glove compartment and five plastic glassine baggies containing cocaine behind the back-seat armrest. The officer questions all three men about the ownership of the drugs and money, and tells them that if no one admits to ownership of the drugs he is going to arrest them all. The men offer no information regarding the ownership of the drugs or money. All three are arrested.

United States v. Watson - - Holding

Officers could perform a search when there was probable cause to beleive that a misdemenour or felony was committed in their presence and they were in a public place.

Johnson v. United States - 333 U.S. 10, 68 S. Ct. 367 (1948)

Police must get a warrant, even though they have probable cause to believe that someone was doing drugs in a hotel room because a neutral magistrate will do a better job at making an objective determination than an officer who is engaged in the competitive enterprise of ferreting out crime.

Pennsylvania v. Mimms, 434 U.S. 106 (1977); Maryland v. Wilson, 519 U.S. 408 (1997

Police officers have an automatic right to order both drivers and passengers out of a car

Summers Rule.

Police officers that have a search warrant can detain occupants of a home and prevent them from leaving, even without probable cause or a reasonable suspicion so long as they are in the immediate vicinity.

Muehler v. Mena

Police were able to detain a suspect for 2-3 hours while executing an "inherently dangerous" search warrant. Immigration officials were able to ask her about her status because the detention was not prolonged by the questioning so there was no additional seizure.

Common Sense Conception of Probable Cause

Probable Cause/Reasonable Suspicion depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.

Pointing a gun at a suspected drug dealers head at point blank range when he has not shown any weapons.

Probably an arrest. This is just way too aggressive.

Support/not support a Stop: Officer is in uniform or display badges.

Probably not. An argument could be made , but it will generally be given little weight because officers are often required to wear their uniform under a wide variety of circumstances.

Drugs and Guns.

Drugs and weapons go hand-in-hand, therefore a reasonable articulate suspicion that D has drugs will support a frisk for weapons often times.

Officer drove through a high crime area, noticed someone just hanging out on the corner. She goes up to ask him some questions and he breaks out into a full out sprint. She chases him down, tackles him, and manages to restrain him. She then pats him down and discovers a buldge in his sock, where she finds a pocket pistol. Defendant moves to suppress at trial. Will he prevail?

Probably, yes. Fleeing from an officer in a high crime area does indicate a crime as it is a "method of evasion". Therefore the officer could perform a stop. What is missing here is a reasonable suspicion to think that it was a violent crime to justify a frisk.

Consensual Encounter After a Stop

Someone may choose to answer questions after a stop is complete or and can consent to a search after the stop is over, that is valid consent. Thus, after police officer returned D's license, and said "one question before you are gone: Are you carrying illegal contraband in your car?" D could consent to search.

Terry v. Ohio (1968) - - Facts

Terry and two other men were observed by a plain clothes policeman in what the officer believed to be "casing a job, a stick-up." (Passing the store multiple times, conferring with one another, conferring with a third party, ect) The officer stopped and frisked the three men, and found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail.

What factors has the court found support the veracity prong of the Aguilar-Spinelli test?

That the informant has given reliable information in the past, that the informant has implicated themselves in a crime, and that the informant has provided details that were corroborated by the police, that a source was willing to swear on an affidavit and subject themselves to liability for not telling the truth.

True or False. The Free to leave test is incomplete.

True. "Free to leave" does not apply if the citizen's choice is extraneous to the police presence, such as being on a common carrier.

True or False. An officer may make a custodial arrest for any minor criminal offense, even just failing to buckle a seat belt or littering.

True. If an officer has probable cause to even believe that someone has committed even a minor criminal offense that officer may make a custodial arrest, provided it has it is not prevented by the state legislator.

True or False. The Aguilar-Spinelli two prong test remains relevant today.

True. The veracity and basis of knowledge prongs are still taken into consideration.

True or False. A magistrate does not need to give any reasons for finding probable cause or for rejecting a warrant application.

True. There is no acquirement that a magistrate give reasons for finding probable cause or for rejecting a warrant application.

True or False. There is no bright line rule that if a container is found inside of a vehicle with drugs, there is probable cause to think that all members of the vehicle had possession of those drugs.

True. While Pringle did find that a common cause among occupants of a car could be inferred from the presence of drugs and large amounts of cash within the tight confines, this holding was limited to it's facts.

The two categories of when an arrest does not require a warrant

Warantless arrests that still require probable cause, and warantless arrests that do not require probable cause

Ybarra - - Holding

Warrant to search a tavern and arrest bartender did not permit searches of patrons absent some individualized suspicion.

When does a stop occur

When a reasonable person, given the totality of the circumstances, would not feel free to leave or terminate the police encounter and there has been submission to a lawful non-physical display of authority.

When does a seizure occur

When the police either take "physical possession" of an individual suspect or when a suspect voluntarily submits to a show of police authority.

Force Movement into Custodial Area

While an officer may force movement for a stop to serve safety or security purposes, probable cause is required if the officer forces the suspect to move for further investigation or to put pressure on the suspect.

May an officer bypass a patdown and go right for the place they think a weapon is?

Yes, in Adams v. Williams, 407 U.S. 143 (1972) an officer was permitted to reach into defendants waist band after he was told by an informant that a weapon was in that exact place.

Is a show of force consistent with a stop and frisk?

Yes, police may use handcuffs or draw their weapons if there is reason to believe that they need to protect themselves from harm.

If a police officer decides that he doesn't like a guy, waits around, and then sees that guy violate a traffic law, can he engage in a stop?

Yes. In Whren v. United States, 517 U.S. 806 (1996) SCOTUS said that a pretextual stop is permissible because the intent of the officer is irrelevant in the face of a valid reason to arrest.

Navarette

a motorist's anonymous 911 call, reporting that a pickup truck had run her off the road, was legally sufficient for the police to stop the truck, without having to independently corroborate the tip. Reasonable suspicion derives from the totality of the circumstances showing that the tip is reliable. The phone caller was credible because 1) the tipster claimed eyewitness knowledge of an incident, and 2) the call was made almost immediately after the incident.

Protective Sweeps,

i. If officers have a reasonable suspicion to think that someone is on the premises police may look around the premises to look for a person who poses a danger to officers. (but you can't look in places where a person obviously would not be)

Maryland v. Pringle, 540 U.S. 366 (2003), - - Holding

the presence of three individuals in the small confines of a car permitted the inference that they were engaged in a "common enterprise" as did the quantity of drugs and money which suggested drug dealing.

Atwater v. City of Lago Vista

If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may without violating the Fourth Amendment, arrest the offender. The court does not want to start drawing the line between a "serious" and "not serious" offense.

May an officer open containers he discovers during a protective pat down?

If the container felt like a weapon or like something that could contain a weapon, and if the container could contain a weapon, then yes. Otherwise, if it is not possible it could contain a weapon it is outside the scope of a protective frisk.

Stop, Factory Sweeps

In INS v. Delgado Factory Employees were not stopped when INS officers conducted a factory sweep displaying badges, carrying walkie talkies, armed (although never drawing guns), officers posted at exits and approaching them to ask citizenship questions because workers were at work and were not going to leave anyway so there was no custodial effect.

Draper, Holding

Information from a reliable informant was enough to establish probable cause when informant described circumstances in a manner that only someone familiar with defendant could have known, and informant provided a predication of how Draper would act in the future which turned out to be true.

What is a Search Warrant?

Judaical Authorization to search a particular palce?

Michigan v. Long, 463 U.S. 1032 (1983)

Marijuana found in glove compartment admissible. Police could search defendant's glove compartment in a protective sweep after observing D crashed into a ditch, acting beligerently, and seeing a hunting knife on the floor.

Putting someone in handcuffs after they threaten to kill someone. Stop or arrest?

Could be a stop if it is only done to "freeze the situation" and prevent harm.

Drawing guns and approaching suspected drug dealers. Stop or arrest.

Could be a stop. Officers may need to be able to protect themselves from the violence associated with drug activity.

Whren v. United States, 517 U.S. 806, 813 (1996) - - Holding

"[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."

Flordia v. JL (2000) - - Holding

"Reasonable Suspicion requires that a tip be reliable in its assertion of legality, not just in its tendency to identify a determinate person"

Huertas (2nd Cir. 2017)

(No submission when defendant answered officer's question when he was in squad car but booked in when cop got out of car)

Florida v. JL (2000) - Facts

An anonymous tipster informed police officers that a young black male wearing a plad shirt had a gun.

Royer

Arrest when moved defendant into interrogation room by taking his ID and plain ticket at an air port.

Officer is Patrolling. He locks eyes with the defendant. The defendant takes off. Is there a reasonable suspicion that defendant is engaged in a crime?

Depends, we need to know more: did this take place in a high crime area?

How do we determine whether someone is within the immediate vicinity of the premises or if they are out in public?

Factors: 1. lawful limit of the premises 2. Occupant in line of sight of the premises,3. Ease of reantry from the occupants location 4. "other factors" as may be appropriate.

True or False. Anonymity supports veracity because someone who is speaking anonymously feels confident in telling the truth without repercussion.

False.

True or False. Hearsay could never support probable cause because hearsay is by it's definition unreliable and would violate the right against unreasonable search and seizures.

False. Reasonably Trustworthy Hearsay may support probable cause.

True or False. If the Informant is Relying on information from a reliable third party, that supports the "basis of knowledge test" prong of Aguilar-Spinelli because they are getting it from a reliable source.

False. Second-hand information even from a reliable source is less trustworthy than first hand knowledge.

True or False. In Terry v. Ohio the Court held that a pat down was not a search or seizure because it was far less intrusive.

False. The court rejected both arguments and held that, under a balancing test, a frisk was a search that required less justification than probable cause.

True or False. The police may stop someone for identification purposes at any time.

False. The police may not stop individuals to demand identification absent reasonable suspicion of criminal activity.

True or False. If police have probable cause, then they do not need a warrant.

False. There is a presumption that police must obtain a warrant even with probable cause unless one of the many exceptions applies.

History of the Particularity Requirement.

The particularity requirement is a reaction to the Framers' experience with colonial era "general warrants," allowing searches of unspecified areas for whatever officers might find that was unlawful,

Probable Cause

The quantity of specific facts within the police officer's knowledge that would warrant a reasonable person to believe that there is a fair probability that either an individual has committed a crime or that evidence of a crime will be found in a particular place.

Illinois v. Gates - - Holding

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.