Criminal Procedure
Class Three
ARREST AND THE WARRANT
CLAUSE
Basic Concepts
• Arrest = seizure under 4th Amendment
• Not all custodial arrests require warrant
• However, all custodial arrests require
probable cause
• PROBABLE CAUSE IS LYNCHPIN
Why Should We Care?
• Invalid arrest does not render continued
confinement unlawful
• Invalid arrest in and of itself does not void
resulting conviction
• Query: Why is the validity of arrest
important for Defendant?
Arrest in Public
• Query: Is warrant required to make valid
arrest in public for felony offense?
• Must officers demonstrate “exigent
circumstances” [some emergency-type
situation]?
Exercise
• Assume: You are a police officer. Why get
an arrest warrant if you don’t have to? Why
not just wait for your suspect to put in an
appearance on the street?
• Task: ID at least 3 reasons
Excessive Force
• Can how an arrest is made (the force used)
violate 4th Amendment?
Excessive Force
• Reasonable inquiry
– depends on circumstances
– objective standard
• Factors
– severity of crime
– whether immediate threat
– whether actively resisting
Relief & Protections
• If officer arrests someone in public without
a warrant, how do we ensure that the arrest
was in fact based on probable cause?
Determining “promptness”
• Probable cause hearing 0-48 hours
– presume OK
– no systemic challenge
– can still show individual challenge
• Hearing 48+ hours
– burden shifts to gov’t
Arrests at Home
• Do police need arrest
warrant enter home to
make arrest?
• Distinguish
– “routine” vs. exigent
– consentual
Arrests at Third Party’s Home
• What documents gets police across the
threshold?
• What document authorizes taking suspect
into custody?
• Can arrested person challenge authority of
police to enter 3rd party’s home?
Resident v. Guest v. On Premises
• Your status in your home
• Your status as overnight guest in someone
else’s home
• Your status as someone “on the scene”
Material Witness
• General test: arrest & detain OK if
impracticable to secure presence by
subpoena
• Most states lack statutory limit on length of
detention
• No constitutional right to $$$ compensation
STOP AND FRISK
Terry Doctrine
• “Stop and Frisk”
• Seizure
• Search
Terry v. Ohio
• When “seized”?
– officer accosts and
restrains freedom to
walk away
• Less than arrest
• Detention
• Limited in duration
• How “searched”?
– pat down
– Frisk
• Less than full search
• Scope: weapons
• purpose: officer
protection
Terry’s Balancing Test
• Gov’t need for S/S
• vs.
• Degree of invasion
Terry Test
• Reasonable suspicion
• Less than probable cause
– so less than needed for arrest
• Objective
• More than “inarticulate hunch”
Terry Applications
Sources of Information
• Tip or personal information permissible
• Could be less than needed to show probable
cause for either:
– full blown search
– arrest
Routine Traffic Stops
• Drivers
• Passengers
• Bright Line Rule
Occupants of Residence
• Conduct: police require occupants to
remain while search warrant executed
• Always Reasonable
Encounter/Stop Distinction
Sliding Scale
EncounterSeizureArrest
NothingReas. Susp.P.C.
Encounter, Stop, or Arrest?
• If police/civilian interaction is “encounter”
rather than stop, it is completely outside 4th
Amendment. It needs no justification.
• Terry stop requires reasonable suspicion
• Arrest requires probable cause
Encounter: “Free to Leave” Test
• Mendenhall test
• Person “seized” only if, in view of all
circumstances surrounding, a reasonable
person would have believed he was not free
to leave
• Objective test
Airport Encounters
• Officer conduct
– Approaching individual on street or public
place
– Asking if willing to answer questions
– Putting questions to him
Airport Encounters
• Civilian Options
– Need not answer
– Decline to listen & walk away
Airport Encounters, con’t
• What legal impact if civilian walks away?
– May NOT be detained, even momentarily,
without reasonable, objective grounds
– Refusal to listen, without more, does not
provide that reasonable suspicion
Factory Sweeps
• Held no “seizure” despite fact guards were
posted at doors … walkie-talkie … badges
…. approached at work station and asked
questions about citizen.
• Query: How does this fit with Mendenhall
free to leave test?
Bus Sweeps
• Facts: Uniformed officers board a stopped
bus, asked to inspect passenger’s ticket &
ID … explain looking for illegal drugs …
ask for consent to search luggage
Bus Sweeps
• Query: How does this fit with Mendenhall
free to leave test?
• Consider: Bostick; Drayton -- When is a
bus sweep a seizure?
Impact of Officer Intent
• Should it make a difference whether officer
intended to terminate person’s freedom of
movement or if her conduct merely had that
effect?
Refusal to Submit
• Seizure in this context means taking
possession
• Two types of “seizure”:
– officer has physically touched OR
– submission to assertion of authority
• Major modification of Mendenhall free to
leave; must show more
Role of Flight
• Sudden flight can create reasonable
suspicion justifying Terry stop
• No per se rule
Grounds for Terry Stop
• Can anonymous tip provide reasonable
suspicion?
• “Sufficiently corroborated” -- as to what
factors: illegality or heavily predictive
Profiles
• Race
• Drug courier
Limits on Terry Searches
• Only justifiable for protective purposes
• Does not permit search for evidence
Terry Searches Beyond the
Person
• “Protective Sweep” of car
• Other persons
• “Protective Sweep” of premises
STOP VS. ARREST
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•
•
•
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Forced Movement
Identification
Interrogation
Temporal Limits
Show of Force
Detention of Property
• Can Terry’s temporary detention apply to
things as well as people?