Constitutional Law
Arrest, Search, and Seizure
• Questions of arrest, search, and seizures
generally fall into one of four categories:
– Arrest with a warrant
– Arrests without a warrant
– Searches with a warrant
– Searches without a warrant
Arrests with a warrant
• Victim signs a complaint
• An arrest warrant is issued
• Arrest warrants may be served day or
night
• Gaining entry to serve an arrest warrant
will depend on if the crime is misdemeanor
or felony
• Felony warrants carry the authority to
make a forced entry. (Payton v. New York)
• Misdemeanor warrants do not allow forced
entry.
• Consider using other laws, hindering
prosecution.
• Third party premises require a search
warrant as well as the arrest warrant.
Arrests without a warrant
• Based on Probable cause
• Crime need not occur in the officer’s
presence
• Applies to misdemeanors as well as
felonies
• Majority of arrests are made this way
Searches with a Warrant
• Search is a governmental intrusion into a
person’s reasonable and justifiable
expectation of privacy
• Seizure is control by government over a
person or thing
• Normally, searches must be conducted
pursuant to a warrant
Search Warrant
•
•
•
•
Application
Affidavit
Warrant
Return / inventory
• 4th Amendment requirement-searches and
seizures must be reasonable if a warrant
is issued it must be:
• Based on probable cause
• Supported by oath or affirmation,
• Particularly describing what is to be
searched for and seized.
Levels of Proof
An officer’s actions must be based on the
law. The higher the level of proof the more
intrusive the officer’s actions can be.
Suspicion – initiate an investigation
Reasonable suspicion – investigative
detention
• Probable cause – arrest and or search
• Preponderance of evidence – civil verdict
• Proof beyond a reasonable doubt – guilty
verdict in a criminal case
Probable Cause
• Facts or circumstances which cause a
person of reasonable caution to believe
that a crime is being or has been
committed, or that evidence of a crime can
be found in a particular place.
Probable Cause
• Probable cause exists where the facts and
circumstances within the knowledge of the
arresting officers, and of which they had
reasonably trustworthy information are
sufficient in themselves to warrant a man
of reasonable caution in believing that an
offense has been or is being committed.
• (in the case of arrest warrants) or that
property could be found in a particular
place or on a particular person (in the case
of search warrants). Carroll v. U.S. 267
U.S. 132 (1925)
How probable cause is established
• Officer’s knowledge of particular facts and
circumstances or knowledge obtained by
the officer.
• Use of the five senses; sight, hearing,
smell, feel, (taste?)
• Officers may consider several factors
when determining if PC exists:
Factors
•
•
•
•
•
•
Suspect’s prior criminal record
Flight from the scene
Highly suspicious conduct
Admission by the suspect
Presence of incriminating evidence
Resemblance of a suspect to a description
of a perpetrator
Information provided by a third
party (hearsay)
• Aguilar v. Texas. 378 U.S. 108 (1964)
• Established the “two pronged test”
• Established the credibility of the informant
and;
• The reliability of the informant’s
information.
Informant reliability
•
•
•
•
Put their name in the affidavit
Statement against penal interest
Track Record
Informant has given accurate information
in the past
Reliability of the information
• Informant has seen the evidence or heard
the statement recently
• Both “prongs” had to be satisfied.
• Police may “corroborate” the information,
(Spinelli v. U.S. 1969)
• Use surveillance, record checks, utility
bills, other informants
Illinois v. Gates
• 462 U.S. 213 (1983)
• Applied the “totality of the circumstances
test” to probable cause,
• Magistrate must consider totality of the
circumstances when deciding if probable
cause exists
Searches without a warrant
• Searches conducted without a warrant are
unreasonable unless they fall under on of
the exceptions to the warrant requirement.
• The exceptions are:
• Search incident to a lawful arrest
• Vehicle (automobile)
• Stop and frisk
•
•
•
•
•
•
•
Plain view seizure
Consent
Public school lockers
Open fields
Inventory / Impound searches
Abandonment
Hot pursuit
Search incident to arrest
• At the time of a lawful arrest officers may
search the arrestee’s person and the area
within his reach or “wingspan”
• Search must be contemporaneous with
the arrest, delays must be reasonable
• Occupants of a vehicle
• The police may conduct a warrantless
search of the passenger compartment of a
vehicle (including its contents) after
arresting the occupants. By definition the
entire passenger compartment (glove
compartment and console) are within the
“wingspan” when that person is validly
arrested in an automobile, even if he
• Could no longer reach into the interior
compartment of the car when the search is
undertaken (e.g. handcuffed) New York v.
Belton, 453 U.S. 454, (1981)
• What about locked containers?
• The interior of the vehicle may be
searched incident to arrest
• Trunk may not be searched incident to
arrest
Vehicle searches
• Probable cause requirement: Before
beginning any search at all under the
automobile exception, the police must
have probable cause to believe that a
moving vehicle, or a temporarily stopped
vehicle, contains the fruits,
instrumentalities, contraband or evidence
of crime.
• (Carroll v. U.S., 1925) Carroll Doctrine
Vehicle searches
• Vehicles may be searched without a warrant if
the officer has probable cause to believe that
evidence can be found inside.
• Lower expectation of privacy requirement: This
exception applies only to automobiles, mobile
homes, boats and airplanes, as to which the
Supreme court has held that citizens have a
lesser expectation of privacy than their homes,
offices and personal property (e.g. luggage or a
foot locker).
• The exception also applies to motor homes
because they generally possess same attributes
of mobility as automobiles (Ca. v. Carney, 1985)
• Mobility requirement: The exigency of the
automobile’s mobility excuses the officer’s failure
to secure a warrant and justifies the warrantless
search of the entire automobile (interior
compartment and trunk) Carroll v. U.S.
• Containers found in the vehicle: when the
police have the probable cause to justify a
warrantless search of the automobile they
may search the entire car and open any
packages or luggage found there which
could reasonably contain the items for
which they have probable cause to search
(U.S. v. Ross)
• The “elephant in the matchbox” rule
• Search need not be contemporaneous: If
the police could have conducted a warrant
less search of the vehicle when the vehicle
was stopped, the vehicle may be towed to
the police station and searched at a later
time. (Chambers v. Maroney, 1970).
Stop and Frisk
• Also called investigative detention or Terry
Stops
• Level of proof required; reasonable
suspicion
• Stop and frisk are two separate issues;
• Stop must be based on an articulable,
reasonable suspicion
• Frisk must be based on a reasonable
suspicion that a suspect may be armed
and presently dangerous. Also called a
“pat down” and is limited to checking for
weapons. The frisk is limited to the outer
clothing for weapons.
• “Plain feel rule” (Minnesota v. Dickerson)
• Terry v. Ohio (1968) Established standard
for an investigative detention
• Adams v. Williams (1972) held that
reasonable suspicion could be established
by information provided by an informant
• U.S. v. Cortez (1981) applied the totality of
the circumstances test for establishing
reasonable suspicion
• Pennsylvania v. Mimms Stop for a traffic
violation once a lawful stop of a vehicle
has been made for a traffic violation the
officer may order the driver out of the car
for safety. Conversely they may order the
occupants to stay in the vehicle.
• Michigan v. Long defined the “scope of the
frisk” how extensive can it be?
• Whren v. U.S. dealt with pre textual stops
(1996), as long as there is legal
justification for the stop, even a minor
infraction the stop is justified.
• Profiling is an old police practice.
Consent Exception
• General rule: A search may be conducted
without a warrant if a voluntary and
intelligent consent is given. (Schneckloth
v. Bustamonte)
• Knowledge of the right to refuse is not
required: it is not a prerequisite to proving
that an intelligent consent has been given
for the person giving consent to know of
the right not to give consent. This is only a
factor to be considered by the judge.
(Schnekcloth)
• Scope of the search: the scope of the
search may be limited by the scope of the
consent. Consent may be revoked at any
time in which case the search must stop.
• Capacity to consent: Any person with an
equal right to use or occupy the property
may consent to a search, and any
evidence found may be used against the
other occupants. (Frazier v. Cupp, 1969,
U.S. Matlock, 1974)
Plain view Seizures
•
•
•
•
•
•
•
Prior lawful intrusion, including:
Car Stop
Entering a structure on another matter
Service of a warrant
Administrative duties
Inadvertent discovery
Item must be immediately recognized as the
fruits, instrumentalities, evidence of a crime or
contraband
Abandonment
• Individuals have no expectations of
privacy in items they discard
• Trash searches
• Motel rooms
• “Dropsy cases”
Inventory searches
• Sometimes called impound searches
• These searches are not for evidence
• When the officers seize an item they
become an “involuntary bailee” which they
are responsible for the item
• Inventory searches are to protect the
officer, the department and the person
whose property was seized
• Inventory searches must be conducted in
the same way each time, usually pursuant
to a department standard operating
procedure (SOP).
• Usually occur when booking a prisoner or
seizing a car in a DWI
Open Fields
• Persons have no reasonable expectation
of privacy in an open field
• Open fields are areas outside the
curtilage.
• Curtilage is an area for the exclusive use
of the occupants
Other exceptions
• Public school lockers
• Hot pursuit
• Protective Sweeps