Name:
Lesson:
Source:
Time and Day Taught:
I.
II.
III.
Lauren Hemingway
Arrest, Street Law pp. 126-132
Adapted from Lauren Hemingway & Andy Jennings Team
Teaching Demonstration and Shared Student Lesson Plan,
Washington Supplement pp. 70-71
50 minutes, Feb. 9, 2009
Goals: A lesson on arrest helps students:
a. determine how the Fourth Amendment protects against unreasonable
arrest/detainment;
b. describe when an arrest is valid under the Fourth Amendment;
c. define probable cause and reasonable suspicion; and
d. know what to do if arrested.
Objectives:
a. Knowledge Objectives: As a result of this class, students will:
i. know that an arrest/detainment is a “seizure” of their “person” under the
Fourth Amendment of the Constitution;
ii. know the definition of arrest/detainment;
iii. know that an arrest or detainment is only constitutional if it is reasonable;
iv. know that an arrest or detainment is presumed reasonable if the person
gives consent or if the police have a warrant;
v. understand the requirements for reasonable suspicion to detain a person
and probable cause to arrest a person without a warrant; and
vi. know what to do (and not do) if s/he is ever arrested.
b. Skills Objectives: As a result of this class, students will be better able to:
i. analyze when an interaction with the police becomes a detainment;
ii. identify the differences between probable cause and reasonable suspicion;
iii. use the knowledge continuum to determine how much information is
enough for probable cause to arrest someone or reasonable suspicion to
detain someone; and
iv. respond when questioned by the police.
c. Attitude Objectives: As a result of this class, students will be better able to feel:
i. that controlling crime is important;
ii. more secure in their rights; and
iii. confident in dealing with the police.
Classroom Methods
a. Lecture on Arrest and the Fourth Amendment (20-25 minutes)
i. Give an overview of the requirements for arrest using the attached
Powerpoint presentation. Click to move between slides while in
slideshow mode.
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ii. Slide 1
1. Introduce that today we will be talking about Criminal Law,
particularly arrests.
2. Click to go to the second slide which looks the same as the
introduction slide but starts the “Crime Clock.”
iii. Slide 2
1. Ask: Does anyone know how often a crime occurs in the United
States? While the students are guessing, the crimes will start to
pop up based on the Crime Clock.
a. Answer: On average, a theft occurs every 4 seconds, a
burglary every 13 seconds, and a violent crime occurs
every 19 seconds. (Source: Street Law Crime Clock,
StreetLaw Student Handbook, p. 74)
2. Explain that, given the frequency of crime, crime is obviously a
problem in the United States that we want to contain. Explain that
arrest is one way that the police contain and control crime.
3. Explain that we also don’t want to give the police a blank check to
arrest whoever they want whenever they want, so we as a society
set limits on the power to make arrests.
4. Ask: Does anyone know of any Constitutional provisions that limit
arrests?
a. Answer: The Fourth Amendment
iv. Slide 3
1. Ask for a volunteer to read the Fourth Amendment out loud.
2. Point out that the main part of the Fourth Amendment is the “the
right of the people to be secure in their persons, houses, papers,
and effect, against unreasonable searches and seizures.”
3. Click to add in the animation illustrating the definition of
arrest/detain.
4. Explain that when the police arrest or detain someone, it is a
seizure of the person.
v. Slide 4
1. Explain that under Washington law, a seizure of a person by the
police occurs at the point at which a “reasonable person would not
feel free to leave.”
2. Explain that there are two types of seizures of the person: arrest
and detainment.
a. Arrest
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b.
i. Explain that an arrest occurs when the police tell
you that you’re under arrest, probably slap on some
handcuffs, and haul you to the local jail.
ii. Ask a student: If you were in the situation I just
described, would you feel free to leave?
iii. Answer: They will say no – that’s clearly a seizure
of the person.
Detainment
i. Explain that this type of seizure is tricker to identify
because a detainment may occur when the police
stop you (but don’t arrest you), but a seizure of the
person doesn’t happen every time a police officer
stops you.
ii. Remind the students that, to be a seizure, the
circumstances must be such that a “reasonable
person would not feel free to leave.”
iii. Pose two scenarios to the students:
1. Ask: If a police officer stopped you on the
street and asked you how your day was
going, would you feel free to leave?
a. Answer: Probably – This stop is
probably not a detainment.
2. Ask: If a police officer grabbed you by the
arm and said, “You have to come with me,”
would you feel free to leave?
a. Answer: Maybe not – This stop
could be a detainment.
vi. Slide 5
1. Remind the students that the Fourth Amendment only prevents
unreasonable seizures. Explain that a seizure must be reasonable
to be valid.
2. Explain that a court will generally presume that a seizure is
reasonable if the person gives consent or if the police have a
warrant.
a. Explain that courts presume reasonableness of a seizure
based on consent as long as the consent is valid.
i. Give the following hypothetical: If the police
approach you and ask, “could you please come
down to the station with me and answer some
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questions?” and you answer, “yes,” then you’ve
consented to the subsequent detainment.
ii. Point out that by consenting, they give up the right
to challenge the validity of the detainment later.
Make it clear that by consenting, you are
relinquishing a right that cannot be recovered later.
b. Explain that a seizure based on a warrant is presumed
reasonable because a court has already determined that the
police have satisfied the requirements to arrest the person
before it even issued the warrant.
vii. Slide 6
1. Explain that the police don’t always need to have a warrant or your
consent to detain or arrest you.
2. Explain that, for an arrest, the police need (click to add animation)
probable cause.
a. Click to add the definition of probable cause.
b. Ask a student to read the definition of probable cause.
c. Ask students to point out and define key terms or phrases
which should include:
i. “facts” – There must be actual bits of information
backing up the suspicion, not just a funny feeling or
a hunch that something is going on
ii. “reasonable police officer” – The standard is
adjusted to take into account that law enforcement
officers make decisions based on their experience as
police officers. They must be a reasonable police
officer, however, not an extra suspicious or
paranoid one.
iii. “strongly suspicious” – This is something more than
a mere hunch or a slight suspicion.
iv. “particular person” – The suspicion cannot be
directed toward a whole group, but a single
individual.
v. “committed” – A crime must have actually
occurred. In many cases, though, planning a crime
is a crime in and of itself.
vi. “particular crime” – The office must suspect a
particular type of crime, not just that some person is
“up to no good” or is a criminal in general.
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3. Explain that, to detain a person temporarily, the police need (click
to add animation) reasonable suspicion.
a. Click to add the definition of reasonable suspicion.
b. Ask a student to read the definition.
c. Ask students to point out and define key terms or phrases
which should include:
i. “officer knows” – Like probable cause, the standard
relates to a trained police officer. The officer has to
know something, he or she cannot have a mere
hunch.
ii. “several minor facts” – A combination of several
small facts can be enough. They must be actual
facts, not just a baseless hunch.
iii. “a larger fact” – A single large fact may be enough.
Again, it must be an actual fact, not just a baseless
suspicion.
iv. “points to” – This language is not particularly
definitive. The connection does not have to be rock
solid.
v. “particular person” - The suspicion cannot be
directed toward a whole group, but should focus on
a single individual.
vi. “engaging in”- There must be some crime
happening or about to happen (again, planning a
crime is generally a crime on its own).
vii. “criminal activity” – The activity must be criminal,
not just morally repugnant. Point out this is less
specific than the “particular crime” language in the
probable cause definition.
4. Ask students to compare the two standards.
a. Point out that probable cause is a higher standard than
reasonable suspicion.
b. Explain that the probable cause standard is higher because
arrest is a more serious seizure than detainment.
viii. Slide 7
1. Show the students the information continuum.
a. Explain that the continuum lays out how much information
and what kind of information the police may know about a
past or future crime. The least amount of information is on
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the far left (none) and the most is on the far right.
Everything else falls in between.
b. Explain each element that falls on the continuum.
i. “No Information” -- the officer doesn't know
anything about any particular person or any
particular crime.
ii. “Hunch” -- the officer has a gut feeling that
something is not right, but the officer cannot point
to any specific facts; it is something like intuition.
iii. “Suspicion” -- the officer knows a minor fact, or has
some larger fact that came from an unknown or
unreliable source that suggests that evidence may be
located somewhere. For instance, an officer stops a
person on the street to ask a question and the person
quickly puts a hand in a pocket. Or, the officer may
find a piece of paper on the street which says that a
particular person is selling drugs.
iv. “Reasonable Suspicion” and “Probable Cause” –
already defined for the class.
v. “Beyond a Reasonable Doubt” -- the highest
amount of proof in the criminal justice system and
the amount required to convict a person of a
criminal charge.
2. Use this slide and the continuum with the following roleplay.
b. Stop-Action Roleplay (20 minutes) based on State v Thierry, 60 Wash. App 445
(1991) (roleplay and case attached at end).
i. During the previous class, select four students to participate in the skit and
distribute the appropriate roles to each student (roles attached below).
1. Two students will play the roles of police officers while the other
two will play the defendants/arrestees.
2. Explain to the actors that their job is to explicitly convey each
action or additional fact one at a time. The goal is to act things out
enough that the teacher does not have to add additional narration.
ii. After giving the Powerpoint presentation, explain that the rest of the class
will be applying the information continuum to a real life case to determine
whether the police have reasonable suspicion or probable cause to do
anything.
iii. Set up chairs for the car (facing the audience) and have the defendants sit
in them. Use paper props to indicate a gun and bat which will be
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positioned inside the car. Ask the police roleplayers to stand nearby,
where they will be observing the defendants.
iv. Explain the setting to the audience: Downtown Tacoma in the early 90’s.
The young men are driving in a 1978 Buick in a high crime area notorious
for high incidences of gang activity, drug trafficking, and violence. There
is a wooden baseball bat at the driver’s feet and a cocked semiautomatic
pistol between the armrests of the front seats.
v. Say “Action!” and allow action 1 of the skit to progress. After the action,
say “Freeze!”
vi. Ask the audience where they think the police are on the information
continuum given all the facts known at that given point.
1. Mark their consensus using a sticky note on the screen. Let the
students decide by consensus on their own.
vii. As the roleplay progresses, continue to start and stop the action and ask
where the class thinks the officers are along the information continuum.
viii. At the conclusion of the roleplay, explain the court’s decision and discuss
its reasoning.
1. Holding: The court held that the officers had reasonable suspicion
to make the initial investigative stop.
2. Reasoning: The court reasoned that the officers, who worked in a
high crime area, had observed behavior that was consistent with
their profile of drive-by shootings. Although the circumstances
may appear harmless to the average person, they may appear
incriminating to a reasonable police officer in light of past
experience. The court said that the circumstances at the time of the
stop only had to be more consistent with criminal activity than
innocent conduct. There is also a balancing of the invasion of
personal liberty against the protection of a public interest. The
court felt the invasion of privacy by the stop was minimal and
easily outweighed by the public interest in preventing drive by
shootings in a high crime area.
c. Debrief the case (5-10 minutes depending on the time remaining)
i. Ask each of the actors how their roles made them feel about the concept of
reasonable suspicion.
1. When did the police roleplayers feel they had reasonable
suspicion?
2. Did the defendant roleplayers feel that what they were doing was
suspicious?
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IV.
V.
ii. Discuss the ethics inherent in the “reasonable police officer” standard and
the use of specific profiles (i.e. drive-by-shooting profile in this case).
Ask the students if they think this is a “fair” standard.
iii. Quick Brainstorm: What should you do if you are stopped/questioned by
the police?
1. Optional: Distribute ACLU guide for police interaction.
http://www.aclu-wa.org/library_files/1204%20English.pdf
Evaluation
a. Class exploration of reasonable suspicion concept during the roleplay.
b. Class answers/discussion during the debriefing of the roleplay.
Assignment
a. Re-read the text of the fourth amendment.
b. Write one page on the following question: Do you agree or disagree with the
courts holding and reasoning in State v Thierry? Why or why not?
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Arrest/4th Amendment Role Play
Instructions for Arrestees
You are going to act out the following scenario in front of your class. The two of you will be
playing the roles of the two arrestees/defendants from an actual case. One of you will play the
role of the driver and the other the passenger. You are asked to act out each fact in the order
listed. After each specific act, the instructor will stop the scene so we can get input from the
audience (your classmates). It will be important for you to remain in character throughout the
entire scene in order to make the skit as real as possible.
Setting:
Downtown Tacoma in the early 90’s. The two of you are driving in a 1978 Buick in a high
crime area notorious for high incidences of gang activity, drug trafficking, and violence. There
is a wooden baseball bat at the driver’s feet and a cocked semiautomatic pistol between the
armrests of the front seats.
Actions
1. Despite the 40-degree temperature you are driving with the windows rolled down.
2. You are also driving with your radio playing very loud.
3. You are both slouched in the front seat of your car.
4. You turn into a parking lot, and although there are many empty spots you drive around
the lot without parking.
5. As you get back to the entrance of the lot you stop the car.
6. At this point, two police officers approach your car. The driver immediately turns down
the radio and the passenger begins to make secretive hand gestures directed at the driver.
7. The officers order you to place your hands up in plain view.
8. As they get closer they order you out of the car, read you your Miranda warnings, and
place you under arrest.
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Arrest/4th Amendment Role Play
Instructions for Police Officers
You are going to act out the following scenario in front of your class. The two of you will be
playing the roles of the two arresting police officers from an actual case. You are asked to act
out each fact in the order listed. After each specific act, the instructor will stop the scene so we
can get input from the audience (your classmates). It will be important for you to remain in
character throughout the entire scene in order to make the skit as real as possible.
Setting:
Downtown Tacoma in the early 90’s. The two of you are on foot patrol in a high crime area
notorious for hi incidences of gang activity, drug trafficking, and violence. While on patrol, you
take notice of a late 70’s model Buick with two teenage occupants.
Actions
1. Despite the 40-degree temperature, the windows are rolled down.
2. You also notice the volume on their radio is very high.
3. Both occupants are slouching very low in their seats.
4. They turn into a parking lot near you and although there are several empty spots they
seem to be driving around without actually looking for a spot.
5. As they return to the entrance of the lot they stop the car.
6. At this point you decide to approach the car. As he sees you, the driver immediately
turns down the radio and the passenger appears to be making hand gestures to the driver.
7. As you get closer, one of you notices a wooden bat at the foot of the driver. You
immediately instruct them to put their hands in plain sight.
8. As the second officer approaches the driver’s side of the car, you immediately see a pistol
between the front armrests at which point you instruct both occupants to get out of the car
and you immediately place them under arrest.
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Court of Appeals of Washington, Division 2.
The STATE of Washington, Respondent,
v.
Marcus THIERRY, Appellant.
No. 12782-2-II.
Jan. 30, 1991.
Juvenile defendant was convicted in the Superior Court, Pierce County, John Krilich, C., of
carrying loaded pistol in vehicle without license to carry concealed weapon, and he appealed.
The Court of Appeals, Worswick, C.J., held that: (1) officer's observation of defendant engaged
in behavior consistent with “drive-by shootings” gave officer reasonable grounds for
investigatory stop, and (2) defendant's admission that he knew gun was in car, that he controlled
and drove car, and fact that he lacked gun license supported conviction.
Affirmed.
WORSWICK, Chief Judge.
Marcus Thierry appeals a juvenile conviction of carrying a loaded pistol in a vehicle without a
license to carry a concealed weapon. RCW 9.41.050(3). He claims that evidence of the pistol
should have been suppressed and that the evidence was insufficient to support the conviction.
We affirm.
Substantial evidence and essentially undisputed findings of fact support the following recitation.
Two Tacoma police officers, working off-duty as security officers for Pierce Transit, observed
Thierry, then under 18, with a teen-age passenger, David Johnson, driving slowly past the 10th
and Commerce transit stop in downtown Tacoma about 3 p.m. one winter afternoon. This is a
high crime area with a high *447 incidence of gang activity, drug traffic, and violence. Despite
the forty-degree weather, Thierry and Johnson had the windows of Thierry's 1978 Buick Electra
rolled down, and the radio was playing loud enough to draw the attention of the officers and
11
others in the area.
The officers continued to watch Thierry and Johnson, who were both slouched down in the front
seat of the car, as they drove into a parking lot on Commerce adjacent to the transit area.
Although there were many empty slots in the lot, Thierry drove around it, made no attempt to
park, and stopped when he got back to the entrance.
The activity of Thierry and Johnson fit the Tacoma Police Department's profile of drive-by
shootings, so the officers approached the car. As they drew near, Thierry immediately turned
down his radio, and one of the officers saw a two-foot-long wooden bat on the floor at Thierry's
feet. He also noticed that Johnson was making furtive hand motions. The officers, concerned for
their personal safety, ordered Thierry and Johnson to bring their hands into view.
As an officer walked to the driver's side of the car, he immediately saw a cocked semiautomatic
pistol between the front armrests. The occupants had not been ordered out of the car before the
officer spotted the pistol, and neither officer had his own gun drawn. The officers found another
gun and knives in the car. After being advised of his rights, Thierry told the officers that he knew
the guns were in the car and that he and Johnson, to whom the guns belonged, carried them for
their own protection.
Thierry first contends that the initial stop made by the officers was invalid and that the court
erred in denying his motion to suppress. We disagree.
[1][2] An investigative stop, although less intrusive than an arrest, is nevertheless a seizure and
must therefore be reasonable under the Fourth Amendment to the United States Constitution and
under Const. Art. 1, § 7. State v. Kennedy, 107 Wash.2d 1, 4, 726 P.2d 445 (1986). When the
initial stop is unlawful, the ensuing search and its results *448 are inadmissible as “fruits of the
poisonous tree.”
Kennedy, 107 Wash.2d at 4, 726 P.2d 445 (quoting Wong Sun v. United
States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).
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[3] A stop is justified if the officer has “specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant [the] intrusion.”
Kennedy, 107
Wash.2d at 5, 726 P.2d 445 (quoting **846Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968)); State v. Williams, 102 Wash.2d 733, 739, 689 P.2d 1065 (1984) (in determining
propriety of investigative stop, court first asks whether initial interference with the suspect's
freedom was justified at its inception);
State v. Rice, 59 Wash.App. 23, 26, 795 P.2d 739
(1990). Thierry contends that since no crime had been reported, the officers could have had no
reasonable suspicion that he had committed a crime and, further, that the officers had no reason
to believe a crime was about to be committed. Again, we disagree.
[4] The officers, working a high crime area, observed behavior consistent with the profile of
drive-by shootings. They were not required to ignore their observations.
State v. Samsel, 39
Wash.App. 564, 694 P.2d 670 (1985). Circumstances that might appear innocuous to the average
person may appear incriminating to a police officer in light of past experience, and the officer
may bring that experience to bear on a situation, as the officers did here. Samsel, 39 Wash.App.
at 570-71, 694 P.2d 670. It is necessary only that the circumstances at the time of the stop be
more consistent with criminal than innocent conduct. State v. Mercer, 45 Wash.App. 769, 774,
727 P.2d 676 (1986).
Even if Thierry's behavior might arguably be viewed as innocent, the ultimate test for
reasonableness of an investigative stop involves weighing the invasion of personal liberty against
the public interest to be advanced. Samsel, 39 Wash.App. at 570, 694 P.2d 670. Officers may
do far more if the suspect conduct endangers life or personal safety than if it does not. See State
v. McCord, 19 Wash.App. 250, 253, 576 P.2d 892,review denied, 90 Wash.2d 1013 (1978).
Given the high crime character of the area in question and the drive-by*449 shooting profile,
“the facts in existence immediately prior to the stop [did] not comport with innocent activity.”
Mercer, 45 Wash.App. at 775, 727 P.2d 676 (upholding validity of initial stop when officer had
approached car in school parking lot because car's dome light was flashing; officer then saw
water pipe on ground by the car and six mag wheels of various sizes in car). The officers'
intrusion in this case was negligible, and their seizure of the pistol and additional weapons was
valid.
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[5] Thierry next contends that the evidence was insufficient because he could not be convicted of
the offense absent evidence that he either placed the gun in the car or “possessed” it (either
“constructively possessed” it or had it on his person) while it was there. He is incorrect.
RCW 9.41.050(3) states:
A person shall not carry or place a loaded pistol in any vehicle unless the person has a license to
carry a concealed weapon and : (a) The pistol is on the licensee's person, (b) the licensee is
within the vehicle at all times that the pistol is there, or (c) the licensee is away from the vehicle
and the pistol is locked within the vehicle and concealed from view from outside the vehicle.
(emphasis added).
The verbs “carry” and “place” are stated in the disjunctive. The State had to prove that Thierry
did one or the other, not both. Indisputably, neither Thierry nor Johnson had a gun license. FN1
Thierry admitted he knew the gun was in the car, and he controlled and drove the car. The State
proved that Thierry “carried” the gun in the car.
FN1. A license cannot be issued to anyone under twenty-one. RCW 9.41.070(1)(b).
When construing a statute, we give effect to all language used; no word is superfluous. Powell
v. Viking Ins. Co., 44 Wash.App. 495, 500, 722 P.2d 1343 (1986). We also avoid absurd results.
Briggs v. Thielen, 49 Wash.App. 650, 654, 745 P.2d 523 (1987), review denied, 110 Wash.2d
1020 (1988). Undefined statutory terms (such as “carry”) are given their ordinary meaning.
Northwest Steel Rolling Mills, Inc. v. Department of Rev., 40 Wash.App. 237, 240, 698 P.2d
100,review denied, 104 Wash.2d 1006 (1985).
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*450 “Carry,” as a transitive verb, means “to move while supporting (as in a vehicle or in one's
hands or arms.)” Webster's Third New International Dictionary 343 **847 (1969) (quoted
definition is first listed; definition 8a is “to hold, wear, or have upon one's person”). That is the
meaning of carry intended by the legislature. Had the legislature intended the word to mean “to
have on one's person,” the language in subsection (a), (“The pistol is on the licensee's person,”)
would be superfluous.
Substantial evidence supported the juvenile court's conclusion that Thierry carried the gun in his
car.
Accord State v. Williams, 636 P.2d 1092 (Utah 1981);
Municipality of Anchorage v.
Lloyd, 679 P.2d 486 (Alaska App.1984).FN2
FN2. Because Thierry admitted he knew the gun was there, we need not consider whether the
statute contemplates a defense similar to unwitting possession in controlled substances cases, see
State v. Cleppe, 96 Wash.2d 373, 380-81, 635 P.2d 435 (1981). We note, however, that Division
III of this court has considered the “strict liability” nature of RCW 9.41.050(3) in deciding that
proof of the person's intent or guilty knowledge is not required.
State v. Anderson, 54
Wash.App. 384, 386, 773 P.2d 882 (1989) (rejecting defendant's argument that he did not know
the gun was loaded).
Affirmed.
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