Chapter 3
FOURTH AMENDMENT
• Detain
• Arrest
• Use of Force
Language of Fourth Amendment
“ 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, supported by Oath
or affirmation, and particularly describing
the place to be searched, and the persons or
things to be seized.”
Overview of
th
4
Amendment
• Fourth Amendment only implicated if
police “seize” the citizen.
• Two types of seizures:
– Investigatory stop – permitted on reasonable
suspicion
– Arrest – requires probable cause
• Fourth Amendment only violated if seizure
is unreasonable.
• Seizure is unreasonable if: a) police lack
adequate grounds for making the seizure; b)
if police fail to procure a warrant before
making a nonconsenual entry into private
residence to arrest someone; or c) if police
use excessive force to effect seizure
• Unconstitutional seizure can:
– Ruin innocent person’s reputation
– Destroy admissibility of evidence (exclusionary
rule)
– Lead to civil suit and sometimes, criminal
prosecution
Three legally significant
police/citizen encounters
• Voluntary encounter
• Investigatory stops
• Arrests
“Free Zone” Investigation
• Voluntary police/citizen investigative encounters
are not regulated by Fourth Amendment
• Suspect has not been seized
• No legally required level of suspicion necessary
• Evidence from voluntary cooperation is always
admissible
• However, voluntary encounter can become a Terry
stop
“Seizure” Defined
• Under Fourth Amendment, suspect is
“seized” if his liberty is restrained and
brought under officer’s control through
either:
– 1) submission to show of legal authority, or
– 2) physical restraint
Test is objective “totality of circumstances” from
perspective of reasonable person in suspect’s
position.
Fourth Amendment Grounds for
Lawful Seizure
A. Correlation exists between degree of suspicion
warranted by what officer knows and type of
action 4th Amendment allows officer to take.
1) If nothing more than a “hunch,” investigation
must be voluntary.
2) If there are articulable facts that justify
reasonable suspicion that a person has
committed a crime, is committing, or is about to
commit a crime, officer has authority for
temporary stop
Cont’d.
3) If officer knows of facts sufficient to
warrant a reasonable person to believe (not
just suspect) that person is guilty of crime,
officer may arrest based on probable cause.
Similarities between reasonable
suspicion and probable cause
• Both involve assessment of suspect’s probable
guilt.
• Both may be drawn from same sources of
evidence – includes personal observations,
physical evidence at scene, info supplied by other
law enforcement agencies/persons/records
• Judge uses same evaluation process for both. Two
steps: 1) determines what officer knew when he
acted, then 2) judge weighs these facts
Difference between reasonable
suspicion and probable cause
• Probable cause requires a higher probability
of guilt.
• The higher probability must be based on
more evidence or more reliable evidence
Investigatory Stops
• Terry v Ohio – Supreme Court ruled that
officer who observed three men engaged in
what appeared to be the casing of a store
had reasonable suspicion, justifying the
detaining of the men for brief questioning
and also frisking them for weapons.
Terry Stops
There are three constitutional requirements for a
lawful Terry stop:
1. Officer must be able to point to objective facts
and circumstances that would justify a
reasonable officer to link the detainee’s conduct
with possible criminal activity.
2. Officer must proceed with investigation
expeditiously.
3. Officer must stay within narrow investigative
boundaries allowed for Terry stops.
Reasonable Suspicion
• For reasonable suspicion standard, officer
must possess objective grounds for
suspecting person detained has committed,
is committing, or is about to commit a
crime.
• Reasonable suspicion requires more than a
hunch, but less than probable cause.
• None of the following factors is sufficient by itself
to provide reasonable suspicion. However, these
factors may be taken into consideration as part of
the totality of circumstances in deciding whether
suspect is engaged in criminal activity
-Person “looks suspicious” but officer can’t point
to any facts that justify this conclusion
- Person is spotted in area that has high incidence
of crime
-Person is known to have criminal record
Cont’d.
– Person is in company of others who have
criminal records or who are suspected of
criminal activity
– Person is black, Hispanic, or some other race or
ethnicity unless the suspect’s race or ethnicity
matches description of offender or fits facts
relevant to known offense.
– Person appears nervous or fails to make eye
contact with the officer.
• Whether facts known to officer provide an
objective basis for reasonable suspicion is
determined from vantage of trained police officer.
• Police are entitled to take criminal profiles into
consideration in evaluating what they observe for
reasonable suspicion purposes only if profiles
serve to distinguish the suspect’s behavior from
behavior one would ordinarily expect of a
presumably innocent person in the vicinity.
• Police may not act on information from members
of public without independent corroboration
unless they have a rational basis for believing the
information is reliable.
• Information from known informant or citizen who
identifies himself and reports activity he has
witnessed in considered reliable and may be acted
upon without corroboration.
• Information from anonymous tipster must be
corroborated before police may act on it.
Scope and Duration of
Investigative Stops
•
•
When police overstep lawful boundaries of
investigatory stop, the stop automatically
escalates into an arrest, violating suspect’s 4th
Amendment rights
There are only two authorized activities during
an investigative stop
1. Take protective measures to secure their safety
2. Investigate circumstances that prompted the stop.
What can police do under Terry
for officer’s protection?
1) Order driver and passengers out of car.
2) If reasonable suspicion the suspect may be
armed or dangerous, conduct protective
weapons frisk, or protective weapons
search of car
a) weapons frisk limited to patting outer
clothing.
b) weapons search of vehicle limited to
looking into areas of passenger
compartment where weapon may be stored
or hidden.
c) may seize nondangerous contraband under
“plain feel” doctrine
Under Terry police have what
authority?
1) Ask for identification
2) Question suspect
3) Communicate with others to verify suspect’s
explanation
4) Run a check of police records
5) Fingerprint suspect at the stop
6) Bring in drug detection dog to for suspect’s
luggage, vehicle or other property, if reasonable
suspicion exists suspect is carrying drugs
7) Transport suspect short distance to fresh
crime scene for showup identification
8) Request consent for full-scale search,
Breathalyer test, or any other procedure that
is designed to further investigation.
• Police should NOT do the following unless
they have probable cause:
– Take suspect against his will to police station
(See Hays v Florida)
– Search suspect for nondangerous contraband
without his consent
• Police should avoid the following during a Terry
stop:
– Issue Miranda warning before they have developed
grounds for an arrest
– Perform a weapons frisk without reasonable suspicion
that detainee is armed or dangerous
– Transport detainee to second location unless necessary
for officer’s safety or further the investigation.
– Display weapons, use handcuffs, place detainee in
patrol car or perform other acts associated with arrest
unless reasonably necessary for officer safety.
Traffic and Vehicle Stops
• Stopping a motorist is always a seizure
• Probable cause is necessary to issue traffic
citation or make a traffic arrest.
• Reasonable suspicion is necessary to
conduct an investigatory traffic stop.
• An exception exists for checkpoints
Vehicle Stops - Checkpoints
• Always a seizure
• Checkpoints must: 1) Further a special need
beyond normal need to control crime; 2) Be
authorized by supervisory-level police
official; 3) Be operated under systematic
procedures that eliminate discretion in
selecting vehicles; 4) Be conducted so as to
minimize inconvenience to motorists
Vehicle Stops – Checkpoints,
cont’d.
• Check driver’s license, registration
• Sobriety checks
• Intercept escaped convicts and dangerous criminal
traveling particular route
• Intercept illegal aliens
• Use “informational roadblocks” to seek
information about recent crime-(Illinois v Lidster)
• BUT can’t use checkpoints to bring in narcotics
dogs
Pretextual Traffic Stops
• Whren v United States: As long as police have
probable cause to believe traffic violation has
occurred, their underlying motivation in
conducting the traffic stop is immaterial.
• To have grounds, police must observe traffic
violation or have probable cause or reasonable
suspicion to believe violation has occurred.
Illinois v Caballes, 2005 U.S.
LEXIS 769
One trooper walked a narcotics dog around
car that was stopped for speeding while
other officer wrote out warning ticket.
Court held that 4th Amendment does not
require reasonable suspicion to justify using
drug detection dogs during a legitimate
traffic stop.
Consent Searches at Traffic Stops
• Ohio v Robbinette: Issue was whether police, after
returning driver’s license during traffic stop, must
in addition explicitly advise motorist that he is free
to go in order for post-traffic stop interactions to
be considered voluntary. Court refused to impose
a per se requirement. It is voluntary if under the
circumstances, reasonable motorist would feel free
to drive away. See ex. On p. 123-124.
Fourth Amendment requirements
for Constitutional Arrest
1) Two types of arrest:
–
Formal – need a) communication of intent to
arrest and b) seizure
– DeFacto – arises by operation of law when
police exceed boundaries of Terry stop.
2) Requires probable cause
3) Arrest warrant is mandatory only when police
make nonconsensual entry into private
residence to arrest person inside.
Fourth Amendment requires
probable cause for arrest
• Devenpeck v Alford, 125 S Ct 588 (2004) (not in
text). Probable cause that supports an arrest does
not have to derive from the reasons stated as
grounds for it. An arrest is valid, even though
police lack probable cause to arrest person on
stated grounds, if, based on facts known to them,
they have probable cause to arrest person for any
offense, even one that is completely unrelated.
Two advantages of arrest warrant
over arrest without warrant
• Ensures evidence seized during arrest is
admissible at trial.
• Immunizes police officer from civil suit
Probable Cause
• An officer has probable cause to make arrest
whenever the totality of facts and circumstances
known to officer create a fair probability that a
particular person is guilty of a crime
• Fourth Amendment requires probable cause for 4
different purposes:
–
–
–
–
Warrantless arrest
Issuance of arrest warrant
Issuance of search warrant
Warrantless search and seizure
Fourth Amendment
Requirements for Valid Arrest
Warrant
1) Magistrate must make independent
determination that probable cause exists
2) Magistrate’s determination must be
supported by affidavit
3) Warrant must contain particularized
description of person to be arrested.
Affidavit
•
•
•
•
•
•
Complaint and warrant in Michigan
Information and belief
Oath or affirmation
Detached neutral magistrate
Naming or describing a particular person
Officer cannot draw conclusion
Warrant Execution
• Anywhere in public
• Announce authority and purpose
• Search warrant for third party residence
unless
– Consent
– Exigent circumstances
– Hot pursuit
Arrests in Private Residences
• If person to be arrested resides in dwelling,
only need arrest warrant
• If dwelling belongs to someone else, need
search warrant and arrest warrant
• Houses, apartments, hotel rooms are
considered private residences for 4th
Amendment purposes.
Knock and Announce
• Police must knock and announce before
attempting forcible entry
• Warrant and/or knock and announce is excused if
a) person of sufficient age who resides on
premises grants permission to enter, b) hot pursuit
or c) exigent circumstances
– Endanger lives
– Prevent suspect from escaping
– Destruction of evidence
Use of Force
1) As little as necessary
– Safety
– Overcome resistance
– Prevent escape
2) Split second decision by police in rapidly
evolving situations
3) Have force continuum
Use of Force, cont’d
• Fourth Amendment regulates use of force during
arrest or other seizure and imposes standard of
objective reasonableness
• Eighth Amendment is operative after a conviction
and protects prisoners from malicious and sadistic
application of force
• Fourteenth Amendment due process regulates use
of force during period after arrest and before
conviction
Deadly Force
• Tennessee v Garner:
“ Thus if the suspect threatens the officer with a
weapon or there is probable cause to believe
that he has committed a crime involving the
infliction or threatened infliction of serious
physical harm, deadly force may be used if
necessary to prevent escape, and if where
feasible, some warning has been given . . .”
State Arrest Laws
•
•
•
•
•
•
•
Warrantless arrest authority – 764.15
Domestic violence arrest authority- 764.15a
Injunctive arrest authority – 764.15b
Citizens arrest – 764.16
Time of arrest – 764.17
Warrant not in possession – 764.18
Forcible entry into building – 764.21
Jurisdiction
• Outside county - 764.2
People v Hamilton, Mich Sup Ct.
Working with police in another jurisdiction –
764.2a
Fresh pursuit 780.101