CONDUCTING
CONSTITUTIONAL
SEIZURES
Chapter 9
Introduction






One of the most intrusive and powerful of all
governmental actions is the actual taking into
physica...
Intensity and Scope of a
Seizure:
Stop and Arrest Compared


Law enforcement involves decisions and
discretion.

What beg...
Investigatory Stops
Police have constitutional authority to stop
people to investigate even before they
can lawfully arres...
Establishing Reasonable
Suspicion


Unite d Sta te s v. Pa ve ls ki (1986)




In the totality of circumstances test, t...
Informants and Anonymous
Tips


Flo rid a v. J. L. (2000)


An anonymous tip has been held to lack
sufficient reliabilit...
Flight from Police


I is v. Wa rd lo w (2000)
llino


The Court determined that reasonable
suspicion to chase is NOT au...
Length of Stop


Unite d Sta te s v. Sha rp e (1985)


How long a stop may last depends on factors
that indicate the sus...
Protective Actions During Stops


Terry allows officers to take necessary steps to
protect themselves in the circumstance...
The Controversy Over
Pedestrian Stops







Police stop over one million people each year
and question them.
The majo...
Traffic Stops


The operation of a motor vehicle is considered a
privilege








However, the driver and occupants ...
Traffic Stops


Pe nns y lva nia v. M m s (1977)
im


The Court ruled that one a police officer has
lawfully stopped a v...
Traffic Stops




Ordering the driver out of the car is
permitted as a safety precaution for the
police once a lawful st...
Traffic Stops




Officers have broad discretion in how they
will deal with traffic law violations and in
many instances...
Traffic Stops


M hig a n v. Lo ng (1983)
ic




If a frisk of one of the occupants of a car is
permitted, the police m...
Roadblocks and Checkpoints


A roadblock stops vehicles without suspicion of criminal
activity by the person stopped.


...
Stops at International Borders and
Checkpoints








Foreigners seeking entry into the United
States for the first t...
Stops at International Borders and
Checkpoints


Unite d Sta te s v. M rtine z -Fue rte (1976)
a




Checkpoints on or ...
Stops at International Borders and
Checkpoints


Unite d Sta te s v. Brig no ni-Po nc e (1975)




Court states the bor...
An Arrest or Not?


Detention tantamount to arrest (de facto
arrest)- a situation in which the police
take someone in for...
An Arrest or Not?


Ka up p v. Te x a s (2003)

Kaupp gave a statement that was used to convict him of
murder.
 Supreme ...
Arrests


Arrest- taking a person into custody




To arrest is to deprive a person of liberty by legal
authority.
Taki...
The Elements of an Arrest


The elements of an arrest are:
1.
2.
3.
4.

Intending to take a person into custody
Exercisin...
When Arrests May Be Lawfully
Made


Officer can usually make a lawful arrest:
1.
2.
3.

For any crime committed in their ...
Warrantless Arrests for Crimes
Committed in the Presence of an
Officer




If a police officer observes a crime being
co...
Warrantless Arrests for Crimes
Committed in the Presence of an
Officer






In many states, officers need to obtain a
...
Warrantless Arrests Based on
Probable Cause


If an officer has sufficient information to
reasonably believe, given the t...
Warrantless Arrests Based on
Probable Cause


Unite d Sta te s v. Wa ts o n (1976)




An arrest without a warrant in a...
Arrests with a Warrant


To be reasonable under the 4 th
Amendment, warrants must be based on
probable cause.


The warr...
Where Arrests May Be Made






They can be made in public places without a
warrant if probable cause exists.
Even if a...
The Knock and Announce Rule
Revisited


Officers can break a door or a window, or
break a car window to make an arrest if...
The Knock and Announce Rule
Revisited


Exigent circumstances may justify an
entry by police without first announcing
the...
The Knock and Announce Rule
Revisited


Officers can request a no-knock arrest
warrant to permit them to enter without
an...
Pursuit


Fresh pursuit






A situation in which police are immediately in pursuit
of a suspect and may cross state ...
Fresh and Hot Pursuit


Unite d Sta te s v. Sa nta na (1975)




Established that a hot pursuit justifies forcible
entr...
Use of Force






There is legal authority that permits
reasonable use of force and consequences
when that force becom...
What is Reasonable Force?
By law, police have the authority to use
force if necessary to make an arrest, keep
the peace, o...
What is Reasonable Force?




When making an arrest, police officers can
use only as much force as is needed to
overcome...
Use of Less-Lethal Force
We have seen an increase in the use of
less-lethal weapons.
 Examples are:









Physi...
The Use of TASERS
Controversial less-lethal weapon.
 The devices rarely cause death but,




The use of a TASER might b...
Use of Deadly Force
Deadly force is restricted to cases of selfdefense or to save the life of another.
 Deadly force


...
Citizens Arrest








Is the detention by a non-government agent of
one accused of an illegal act.
The law of citize...
Right of Those in Custody


People under arrest:





Have the right to know the charges against
them.
Have the right ...
Right of Those in Custody


Prisoners:







Give up many of their Fourth Amendment
rights by virtue of being arrest...
Immunity from Arrest


Certain classifications of people have
immunity from arrest because of federal
or state statutes. ...
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Ch09

  1. 1. CONDUCTING CONSTITUTIONAL SEIZURES Chapter 9
  2. 2. Introduction    One of the most intrusive and powerful of all governmental actions is the actual taking into physical custody, or the arresting, of an individual. The police are the only ones to have this power. Because of the power government has through arrest, constitutional limitations are in place to prevent abuse.
  3. 3. Intensity and Scope of a Seizure: Stop and Arrest Compared  Law enforcement involves decisions and discretion. What begins as a simple stop may turn into an arrest and a full body search.  A stop is considered different than an arrest.    Te rry v . O hio established that the authority to stop is independent of the power to arrest. A stop is not an arrest, but it is a seizure within the meaning of the 4th Amendment and requires reasonableness.
  4. 4. Investigatory Stops Police have constitutional authority to stop people to investigate even before they can lawfully arrest them.  For an investigatory stop to be constitutional, the officer must have articulable reasonable suspicion.  The officer has to be able to explain in detail what specifically was suspicious.   The totality of the circumstances (whole picture) must be taken into account.
  5. 5. Establishing Reasonable Suspicion  Unite d Sta te s v. Pa ve ls ki (1986)   In the totality of circumstances test, the standard of proof is less than reasonable belief or probable cause. It must be more than a mere hunch or even general suspicion and cannot be a “fishing expedition” based on a whim or a “gut feeling things were really wrong”.
  6. 6. Informants and Anonymous Tips  Flo rid a v. J. L. (2000)  An anonymous tip has been held to lack sufficient reliability to establish the reasonable suspicion for a Te rry stop, given the totality of the circumstances.  This case is different from Terry because the suspicion did not arise from an officer’s personal observation, but from an anonymous source.
  7. 7. Flight from Police  I is v. Wa rd lo w (2000) llino  The Court determined that reasonable suspicion to chase is NOT automatic when people run.  The Supreme Court ruled that Wardlow’s presence in a high-crime area was a relevant fact that officers could consider in deciding whether they had reasonable suspicion that he was involved in criminal activity.  Flo rid a v. Ro y e r (1983)  Refusing to talk to the police is not unlawful
  8. 8. Length of Stop  Unite d Sta te s v. Sha rp e (1985)  How long a stop may last depends on factors that indicate the suspect was not detained an unreasonably long time.  The purpose of the stop.  The reasonableness of the time used for the investigation that the officers wish to conduct.  The reasonableness of the means of investigation used by the officer.
  9. 9. Protective Actions During Stops  Terry allows officers to take necessary steps to protect themselves in the circumstances warrant such measures.     They can draw their weapons. Request backup. Handcuff individuals or place them in the back of a squad car Depending on the circumstances, a frisk may be allowable during an investigatory stop.  Reasonable suspicion that the detainee may be armed and dangerous.
  10. 10. The Controversy Over Pedestrian Stops     Police stop over one million people each year and question them. The majority are Black and Hispanic. Civil liberties advocates say these practices are racist and do not deter crime. Police departments argue that such stops are valuable that turns up illegal weapons and drugs and prevents more serious crime.
  11. 11. Traffic Stops  The operation of a motor vehicle is considered a privilege     However, the driver and occupants remain protected by the Constitution Being stopped by the police for no or insufficient reason is considered unreasonable and is a constitution violation of 4th Amendment rights Officers may stop motorists only for violations of the law, including equipment violations, erratic driving or invalid vehicle registration Considered a petty misdemeanor  Miranda warnings are not required, the person is not under arrest
  12. 12. Traffic Stops  Pe nns y lva nia v. M m s (1977) im  The Court ruled that one a police officer has lawfully stopped a vehicle for a traffic violation, they may order the driver out of the car.  Even without suspicion of other criminal activity or threat to the officer’s safety.  Once the driver is out of the car and the officer then reasonably believes the driver may be armed and dangerous, the officer may conduct a frisk.
  13. 13. Traffic Stops   Ordering the driver out of the car is permitted as a safety precaution for the police once a lawful stop has been made. The Court has again conveyed their safety concern for police personnel by permitting the passengers to be ordered out of the car as well.
  14. 14. Traffic Stops   Officers have broad discretion in how they will deal with traffic law violations and in many instances may cite the driver, issue a summons for a required court appearance or arrest and jail the defendant. Unite d Sta te s v. Tha rp e (1976)  If police make a stop for a traffic violation and are reasonably suspicious that the situation is dangerous, they can order both the driver and
  15. 15. Traffic Stops  M hig a n v. Lo ng (1983) ic   If a frisk of one of the occupants of a car is permitted, the police may also check the passenger compartment for weapons. Whre n v. Unite d Sta te s (1996)   The Court held that as long as probable cause existed to believe that a traffic violation occurred, stopping the motorist was reasonable. Pretext stops allowed.  Stopping a vehicle to search for evidence of a crime
  16. 16. Roadblocks and Checkpoints  A roadblock stops vehicles without suspicion of criminal activity by the person stopped.   Police are checking everyone, rather than a particular individual. Bro wn v. Te x a s (1979)  The Supreme Court created a balancing test that requires the courts to evaluate the lawfulness of roadblocks and listed factors to consider:    The gravity of the public concerns that are service by the roadblock. The degree to which the roadblock is likely to succeed in serving the public interest. The severity with which the roadblock interferes with individual liberty.
  17. 17. Stops at International Borders and Checkpoints     Foreigners seeking entry into the United States for the first time hardly have any 4th Amendment rights at the border. They can be stopped and asked questions without reasonable suspicion. Their vehicles and belongings can be searched without probable cause. Once they are legally inside the United States, they are entitles to constitutional protection.
  18. 18. Stops at International Borders and Checkpoints  Unite d Sta te s v. M rtine z -Fue rte (1976) a   Checkpoints on or near international borders need no justification to stop all vehicles to check for illegal entrants into the United States. Supreme Court has held that the government’s interest in protecting the nation’s borders alone justifies stopping any vehicle or individual.  Stops may not be done on the basis of ethnicity, religion or the like.
  19. 19. Stops at International Borders and Checkpoints  Unite d Sta te s v. Brig no ni-Po nc e (1975)   Court states the border patrol officers could detain and question, as opposed to actually searching, people in a car if reasonable suspicion existed, adding that within 100 miles of the international border, reasonable suspicion was all that was needed. Unite d Sta te s v. Flo re s -M nta no (2004) o  Congress has always granted the authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties to prevent the introduction of contraband into this
  20. 20. An Arrest or Not?  Detention tantamount to arrest (de facto arrest)- a situation in which the police take someone in for questioning in a manner that is, in reality, an arrest, but without the requisite probable cause.  An illegal arrest of there is no probable cause.
  21. 21. An Arrest or Not?  Ka up p v. Te x a s (2003) Kaupp gave a statement that was used to convict him of murder.  Supreme Court overturned the conviction, noting that the police lacked probable cause for the de facto arrest,  which made it illegal and as “tainted fruit” the statement was ruled inadmissible.   Duna wa y v. N w Yo rk (1979) e Supreme Court ruled that seizure was illegal because the defendant was not free to leave.  The seizure was more than a simple stop and frisk, and should have been based on probable cause.  “Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the 4th Amendment (Supreme 
  22. 22. Arrests  Arrest- taking a person into custody   To arrest is to deprive a person of liberty by legal authority. Taking a person into custody for the purpose of holding him to answer a criminal charge.  The general guideline is that a person is under arrest if a reasonable person would believe that under the existing circumstances, they were, in fact, being detained by the police and not free to go.
  23. 23. The Elements of an Arrest  The elements of an arrest are: 1. 2. 3. 4. Intending to take a person into custody Exercising authority to do so Detaining or restraining the person to be arrested and The arrestee understanding what is happening
  24. 24. When Arrests May Be Lawfully Made  Officer can usually make a lawful arrest: 1. 2. 3. For any crime committed in their presence For any felony if they have probable cause With an arrest warrant
  25. 25. Warrantless Arrests for Crimes Committed in the Presence of an Officer   If a police officer observes a crime being committed, they have the authority to arrest those involved in committing the crime. Sta te v. Pluth (1923)   The crime or attempt must actually take place in the officer’s presence. The officers must know a crime is being committed.
  26. 26. Warrantless Arrests for Crimes Committed in the Presence of an Officer    In many states, officers need to obtain a arrest warrant for a misdemeanor not committed in their presence. They may arrest for a misdemeanor not committed in their presence if the suspect might flee or might conceal or destroy evidence or if the incident involves a traffic violation. There are exceptions. 
  27. 27. Warrantless Arrests Based on Probable Cause  If an officer has sufficient information to reasonably believe, given the totality of the circumstances:    That a crime is occurring or has occurred And that the suspect is the offender The officer may arrest without a warrant  Only for a felony level crime
  28. 28. Warrantless Arrests Based on Probable Cause  Unite d Sta te s v. Wa ts o n (1976)   An arrest without a warrant in a public place is valid if it is based on probable cause. Probable cause can be based on anything an officer becomes aware of through the senses.  Observational probable cause  Informational probable cause
  29. 29. Arrests with a Warrant  To be reasonable under the 4 th Amendment, warrants must be based on probable cause.  The warrant must name:  The  The specific offense being charged.  The name of the accused.  The  person making the complaint. basis for the probable cause. The facts must be sworn as true.
  30. 30. Where Arrests May Be Made    They can be made in public places without a warrant if probable cause exists. Even if a person retreats to a private place, the warrantless arrest based on probable cause is valid. Pa y to n v. N w Yo rk (1980) e  Police may not enter a private home to make a routine felony arrest unless exigent circumstances exists, as in hot pursuit.
  31. 31. The Knock and Announce Rule Revisited  Officers can break a door or a window, or break a car window to make an arrest if necessary.   They must first knock and announce their authority and purpose before breaking into a dwelling. The intent of the knock and announce rule is to prevent the occupants from responding with force because they do not know who the intruders are.
  32. 32. The Knock and Announce Rule Revisited  Exigent circumstances may justify an entry by police without first announcing their presence, including:  When victims or hostages may be inside  When a crime is actually in progress  When evidence or contraband can be destroyed  When making the officer’s presence known would place them in danger
  33. 33. The Knock and Announce Rule Revisited  Officers can request a no-knock arrest warrant to permit them to enter without announcing themselves.    Gives the officers the element of surprise When it could be dangerous for the officer or citizens Destruction of evidence is a concern
  34. 34. Pursuit  Fresh pursuit    A situation in which police are immediately in pursuit of a suspect and may cross state jurisdictional lines to make an arrest of a felon who committed the felony in the officers’ state. The suspect will be charged with crimes in all jurisdictions involved. Hot pursuit  The period during which an individual is being immediately chased by law enforcement and, because of the exigencies of the situation, officers are allowed to forcibly enter constitutionally protected areas, such as a home, without a warrant.
  35. 35. Fresh and Hot Pursuit  Unite d Sta te s v. Sa nta na (1975)   Established that a hot pursuit justifies forcible entry into an offender’s home without a warrant. M inne s o ta v. O ls o n (1990)     A warrantless intrusion may be justified by hot pursuit of a fleeing felon, Or imminent destruction of evidence, Or need to prevent a suspect’s escape, Or the risk of danger to the police or to other persons inside or outside the dwelling.
  36. 36. Use of Force    There is legal authority that permits reasonable use of force and consequences when that force becomes excessive. Police know that what may appear to be excessive use of force is not always the case. Suspects on intoxicants or those dealing with mental issues sometime are unaware of police efforts to subdue them.  What may appear brutal is actually a strategic
  37. 37. What is Reasonable Force? By law, police have the authority to use force if necessary to make an arrest, keep the peace, or maintain public order.  Te nne s s e e v. G a rne r (1985)   Court held, “Unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others” deadly force is no longer allowed.
  38. 38. What is Reasonable Force?   When making an arrest, police officers can use only as much force as is needed to overcome resistance. If the suspect does not resist, no force can be used.   Excessive force may cause the officer to be sued. Officers should be trained in all aspects of use of force, including the law, weapons used and when different degrees of force are
  39. 39. Use of Less-Lethal Force We have seen an increase in the use of less-lethal weapons.  Examples are:        Physical restraints Light Acoustics Chemicals Impact projectiles Electric sources (TASERS)
  40. 40. The Use of TASERS Controversial less-lethal weapon.  The devices rarely cause death but,   The use of a TASER might be considered unreasonable excessive force if the subject is neither a flight risk, a dangerous felon nor an immediate threat.
  41. 41. Use of Deadly Force Deadly force is restricted to cases of selfdefense or to save the life of another.  Deadly force   Force that, when used, would lead a reasonable officer objectively to conclude that it poses a high risk of death or serious injury to its target.
  42. 42. Citizens Arrest     Is the detention by a non-government agent of one accused of an illegal act. The law of citizens arrest is what private security officers use. Private security officers are not bound by the 4 th Amendment. Any private citizen making a citizens arrest, will be held liable if they violate any civil or criminal laws and when they do not follow the requirements of the code pertaining to citizens arrest.
  43. 43. Right of Those in Custody  People under arrest:    Have the right to know the charges against them. Have the right to make a phone call. Have the right to appear before a magistrate without undue delay.
  44. 44. Right of Those in Custody  Prisoners:     Give up many of their Fourth Amendment rights by virtue of being arrested. Have the right to be treated reasonably and to make their whereabouts known. Have the right to access legal counsel. Correctional officers are permitted to use reasonable force in situations of self-defense, defense of third persons, upholding prison rules, preventing crime and preventing escape.
  45. 45. Immunity from Arrest  Certain classifications of people have immunity from arrest because of federal or state statutes. They are:  Foreign diplomats, including:  Ambassadors, ministers their assistants and attaches and their families and servants  Foreign consuls and their deputies, as well as some legislators and out-of-town witnesses
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