Chapters 12-15
Criminal Process
4th Amendment
Guarantees citizens the right to go about
their business free of unreasonable
interference by the police
Protection against
Unreasonable Search
and Seizure by
government officials
home, business, papers, bank accounts,
computer, & personal items
Constitution does not give citizens absolute
right to privacy
Define Search & Seizure
1. Searching persons for evidence
2. Searching places and things for
evidence
3. Seizing evidence
4. Seizing a person (detaining)
Officer’s authority to detain citizens
against their will is regulated by
3 principles
1.4th Amendment
2.State Constitution
3.State arrest laws (statutory laws)
3 classes of Seizures (detaining a person)
1. Voluntary encounters
2. Investigatory stops
3. Arrests
What is a Seizure?
Occurs when a suspect submits to a officer’s
show of legal authority or the officer gains
actual physical control of the suspect
• officers need
reasonable suspicion to
stop and question you
• Based on less info than
probable cause
• Police officers are not required by law to inform you of
your rights before asking you to consent to a search. In
addition, police are prepared to use their authority to get
people to consent to searches, and most people are
predisposed to comply with any request an officer makes.
For example, the average motorist stopped by an officer
who asks them, "Would you mind if I search your vehicle,
please?" will probably consent to the officer’s search
without realizing that they have every right to deny the
officer’s request.
• If for any reason you don’t want the officer digging
through your belongings, you should refuse to consent by
saying something like, "Yes, I do mind. I have private,
personal items in my [car, backpack, etc.] and do not want
you looking through them." If the officer still proceeds to
search you and find illegal contraband, your attorney can
argue that the contraband was discovered through an
illegal search and hence should be thrown out of court.
Crossing the 4th Amendment Boundary
4th Amendment violated when seizure is
unreasonable
1. Officer lacked adequate grounds for the
seizure
2. Officer failed to secure a warrant in a
situation in which one is required
3. Officer used excessive force to effect the
seizure
Force may be used or varies w/
the seriousness of the offense, or
if safety of officer or others
appear at risk
Voluntary Encounters
• Not regulated by 4th Amendment
• Police have a “free zone” for investigative work
• Liberty to approach citizens and ask questions,
or request other forms of assistance
• Suspect’s compliance w/ request in voluntary
and consensual
• SEIZURE occurs when suspect’s freedom of
movement is restrict, suspect brought under
control of officer, or physical restraint
Example
• Voluntary Encounter = police ask suspect to
cooperate w/ investigation; to take a
breathalyzer test – this occurs voluntarily
• 4th Amendment kicks in when suspect’s
movement is restricted and suspect is brought
under officer’s control
• Officer now has probable cause to believe
suspect has committed a crime
• Suspect is under arrest, now we are exceeding
the boundaries of investigatory stop
• Officers are free to ask for any form of
voluntary assistance, identification,
answer questions, permission to
search belongings, consent to
Breathalyzer, as long as they do not
restrict the suspect’s freedom of
movement or indicate that it is
mandatory
• Suspect has right to refuse
• Evidence is always admissible when
suspect furnishes it voluntarily
“Sticky Fingered Sam”
• While patrolling neighborhood late one night,
officer sees Sticky Sam lugging a stereo down
the street. Officer gets out of his car, w/ one
hand on his revolver, stands in front of Sam
and says “Hey! Put that stereo down and show
me some ID” Sam stops and complies. Sam
has been SEIZED
• Sam was seized by submission to a legal
authority. Sam probably did not wish to, but
he did. Physical seizure was not a factor, but
Sam was still SEIZED
• Time of seizure important
• Evidence procured from suspect
w/out a seizure is always
admissible, whereas evidence
procured after a seizure may or may
not be admissible in court
• Admissibility will turn on whether
the officer had grounds for the
seizure
• Officers need to be aware of when
they have constitutional grounds to
proceed
• A narcotics detective observes a nervous
young man pull out a roll of $100 bills at
a airport ticket counter and pay cash for
a one-way ticket. Acting on a hunch that
he is a drug courier, she approaches him,
shows her badge and says “Would you
mind answering some questions about
the purpose of your travel and contents
of your bag?” The young man complies.
• Once again he complied to legal
authority voluntarily
• Different approach
• After observing the purchase,
detective approaches the young
man, shows her badge and says
in a commanding voice “You are
under suspicion of transporting
drugs. Pick up your bags and
follow me. I am taking you to the
security office for questioning”
The young man complies.
• This encounter is considered a
SEIZURE
• Young man was not “free to
leave”
“Free to Leave”
• Perception of not being able to leave
must arise from the behavior of the
police
California v. Hodari D
• Juvenile was standing on street corner ran
when he saw approaching police car
• Officers got out and pursued him on foot,
yelling at him to stop
• Juvenile discarded a rock of crack cocaine
seconds before the officers tackled him
• Supreme Court ruled, even though officers
lacked grounds for seizing him before the
chase, the evidence was still admissible
4 relevant degrees of suspicion
1. Hunch lowest degree, encounter w/ suspect must
be voluntary, suspect may not be seized
2. Investigatory detention is limited seizure made for
purpose of investigating circumstances that
aroused officer’s suspicion
3. Probable Cause is police know enough to facts to
warrant a reasonable person in believing, not just
suspecting, that individual is guilty of a crime,
probable cause to make a arrest
4. Beyond reasonable doubt = conviction and
punishment
In order to determine constitutional
grounds for action/Probable Cause
1. Identify all the facts and
circumstance known at the time
action was taken
2. Weigh the facts in combination and
3. Evaluate their implications from the
perspective of trained officer
• Different degrees of suspicion carry very
different legal consequences, there is no
hard edged boundaries b/w the two
• Trained officers must understand varying
degrees of reasonable suspicion
1.Things they observe
2.Officer’s assumptions and interpretations
• 2 men, street corner 1:00 a.m.
• Neighborhood has frequent drug users
• Drug transactions can take place 1:00 am
• Money was seen being exchanged
Investigatory Stops
Officer activates lights and siren to
stop a car
• Motorist has been seized thru submission
to the officer’s show of legal authority
• Investigatory stops or arrests are limited
seizures made for the purpose of
conducting brief investigation
• Permissible under lower degree of
suspicion= Reasonable Suspicion
Investigatory Stops
*Terry v. Ohio 1968
• Officer observes behavior that arouses
reasonable suspicion that criminal activity
is occurring, but NOT probable cause for
arrest
• Downtown Cleveland, 3 men gazing thru
store window, they kept walking away and
coming back to the window-5-6 times
• Suspecting them of ??????
• Officer approached them, ID himself and asked
them their names, they mumbled something,
officer grabbed one of them (Terry) and held him
while patting down his exterior clothing, feeling a
pistol, officer ordered Terry to remove coat and
retrieve the pistol
• Terry was charged w/ carrying concealed weapon
• Terry’s attorney wanted to suppress the evidence
on grounds the 4th Amendment does not allow
officers to conduct a frisk w/out probably cause
for an arrest
Supreme Court Ruling
• Officers may briefly detain individuals for
questioning when their conduct arouses
a reasonable suspicion
• Reasonable suspicion standard is less
demanding than probable cause for an
arrest
• When detention is justified, (Terry was
held) police may conduct a protective
weapons search
• Now known as a Terry
“pat and frisk”
Stop
Purpose of Terry Stop
• Enables officer to investigate the
circumstances of suspicion that
prompted the stop in order to
confirm or dispel their suspicion
w/in a relatively short period of
time
• Terry’s case, reasonable
suspicion led to probably cause,
led to his arrest and conviction
Reasonable Suspicion
1. Person is spotted in high crime area
or in close proximity
2. Person has a criminal record or in
company of others w/ past criminal
record
3. Person attempted to avoid contact
w/ officer
4. Person gives suspicious,
inconsistent, or false answers to
routine questions
5. Person appears abnormally nervous
or fidgety
• Terry Stops need not to be
based solely on the officer’s
own personal observations
• Can come from TIPS, if
reliable and tipster’s
credibility
• You witnessed a customer drinking a can of
beer while waiting for his order at a drive
through window. You called the cops, and
gave the information you observe red.
They stopped him a few blocks away.
Illinois v. Gates
Facts of the Case:
• The Bloomingdale, Illinois Police Department received an anonymous tip
that Lance and Susan Gates were selling drugs out of their home. After
observing the Gates's drug smuggling operation in action, police obtained a
warrant and upon searching the suspects' car and home uncovered large
quantities of marijuana, other contraband, and weapons.
Question:
• Did the search of the Gates's home violate the Fourth and Fourteenth
Amendments?
Conclusion:
• The Court found no constitutional violation
• Justice Rehnquist argued that an informant's veracity, reliability, and basis of
knowledge are important in determining probable cause, but that those
issues are intertwined and should not be rigidly applied.
Purpose of Terry Stop
• Is to enable the officer to
investigate the
underlying suspicion as
quickly as possible
• 4th Amendment does not
allow police to detail
citizens for lengthy
periods on a mere
suspicion of criminal
activity
• Miranda Rights are not required during
Terry Stops, unless arrest-like force is
necessary to execute the stop
• Request for identification is most common,
suspects may be arrested for refusing to
disclose their name, b/c a person’s name is
seldom incrimination
Terry Stop’s Purpose
• Search for weapons
• During pat down, officer feels an
object that he recognizes as
contraband and seizes it, even
though not a weapon
• “Plain Feel” doctrine
– May or may not is admissible
Traffic and Vehicle Stops
• Stopping a motorist is always a
seizure, whether it’s making an
arrest, issue traffic citation,
investigate non-traffic offense, or
as simple as checking registration
• Reasonable suspicion to stop
• Probable cause to make an arrest
Safety Precautions during Traffic Stops
Officers may take the following precautions
1. Order you out of the car and passengers
2. Ask if you have weapons in the vehicle
3. Visually look inside the vehicle and
flashlight around the interior
4. Run a criminal records check
Reasonable suspicion search can become
more intrusive, searching compartments,
frisking the occupants
• 4th Amendment is concerned w/ the stop’s
duration not w/ the scope of the questioning
that occurs during the stop
Traffic stop may lead to
arrest, b/c of Probable
Cause
The arrest is lawful, so is the
search
Some states do not allow arrests for fine-only traffic
violations
• While making an arrest, minimum force is
used
• 1985 Supreme Court ruled “ deadly force
may not be used unless it is necessary to
prevent escape, and the officer has
probable cause to believe the suspect
poses a significant threat of death or
serious physical harm to the officer or
others”
What is an Arrest?
1. Formal Arrest
– Intentional, the intent is announced to the
suspect
2. De Facto Arrest
– Unintentional , beyond reasonable suspicion now
probable cause becomes necessary
Probable Cause for Arrest
• Officer applies for arrest warrant by
preparing a sworn affidavit detailing
the results of the investigation
• Magistrate reviews the officer’s
affidavit and determines whether the
facts est. probable cause for an arrest
• Of course, there may be times when
warrant is not available
Probable Cause exist to…
1. Obtain search warrant
2. Conduct some searches w/out a warrant
3. Obtain an arrest warrant
4. Make an arrest w/out an warrant
•
•
•
Probable Cause depends entirely on
the facts of EACH case
Public areas probable cause is
enough
Private areas need a warrant unless
exigent circumstances
• Search warrant is a court order
• Officer must file an affidavit, facts that provides
probably cause/ search is justified
• Warrant must describe the person, place, and
the particular things to be seized
• Given certain number of days
• Can seize evidence related to the case if in plain
view when properly conducting the search (not
on warrant)
• Proceed w/ “knock and announce” test
Court does allow “no-knock” entries under
certain circumstances = Exigent
Circumstances
– Consent given
– Hot pursuit of suspect
– Danger to officer’s safety
– Danger to third party
– Risk of suspect’s escape
– Risk of destruction of evidence
• Warrants only when the arrest is made
inside a private dwelling
• Do not have to procure a warrant to make
arrest in public place or inside a
commercial establishment (hotels for
example)
• People to voluntarily leave confines of their
home, stand on their porch, in their yardgiven up their right to “private” dwelling
Searches
• Plain View
California v. Ciraolo
Facts of the Case:
• The Santa Clara Police received an anonymous tip that Ciraolo was growing
marijuana in his back yard. Unable to observe the yard from the ground due to a
high fence which encircled it, the police secured a private plane and flew over
Ciraolo's house at an altitude of 1,000 feet. The fly-over confirmed the presence of
marijuana. The police then obtained a search warrant, seized 73 plants on the next
day, and arrested Ciraolo who then pleaded guilty to the cultivation of marijuana.
The California Court of Appeals, however, found that the aerial observation was
illegal and reversed Ciraolo's conviction.
Question:
• Did the warrantless, aerial observation of Ciraolo's back yard from an altitude of
1,000 feet constitute an illegal search and violate the Fourth Amendment?
Conclusion:
• The divided Court found that the observation did not violate the Constitution.
Chief Justice Burger reasoned that the Fourth Amendment protections regarding
the home had never been absolute: for example, police officers are not obligated
to shield their eyes when passing homes on public streets or sidewalks.
• Since the observations of the Santa Clara officers was "nonintrusive" and "took
place within public navigable airspace," their actions were consistent with the
Fourth Amendment. "Any member of the public flying in this airspace who glanced
down could have seen everything that these officers observed," concluded Burger.
Bond v. United States
Facts of the Case:
• While checking the immigration status of passengers on a bus in Texas, Border Patrol Agent Cesar
Cantu squeezed the soft luggage which passengers had placed in the overhead storage space.
When Agent Cantu squeezed a canvas bag above Steven Dewayne Bond, Agent Cantu noticed
that it contained a "brick-like" object. After Bond admitted owning the bag and consented to its
search, Agent Cantu discovered a "brick" of methamphetamine. Bond was indicted on federal
drug charges. Bond moved to suppress the drugs, arguing that the agent conducted an illegal
search of his bag, when squeezing it, in alleged violation of the Federal Constitution's Fourth
Amendment prohibition against unreasonable searches and seizures. The District Court denied
the motion and subsequently found Bond guilty. On appeal, Bond conceded that other
passengers had access to his bag, but contended that Agent Cantu manipulated the bag (by
squeezing)in a way that other passengers would not, thus constituting an unreasonable search.
In affirming the denial of the motion, the Court of Appeals held that Agent Cantu's manipulation
of the bag was not a search under the Fourth Amendment.
Question:
• Does a law enforcement officer's physical manipulation of a bus passenger's carry-on luggage
violate the Fourth Amendment's protection against unreasonable searches?
Conclusion:
• Yes. In a 7-2 opinion delivered by Chief Justice William H. Rehnquist, the Court held that "Agent
Cantu's physical manipulation of petitioner's carry-on bag violated the Fourth Amendment's
proscription against unreasonable searches." The Court concluded that Bond "possessed a
privacy interest in his bag," and that such an expectation of privacy is reasonable.
• "Physically invasive inspection is simply more intrusive than purely visual inspection," Chief
Justice Rehnquist wrote for the Court, a bus passenger "does not expect that other passengers or
bus employees will, as a matter of course, feel the bag in an exploratory manner."
Scope of a Search
• Probable Cause = Search Warrant
• Search authority under a warrant
only extends to the locations
describe in it
• Issued for “Sam’s” kitchen, then
police may NOT search bedroom,
garage, tool shed, etc…
• Intensity of Search = police may only
look in places that are potential
areas of the objects for which they
have a search authority
Searching for stolen
pink baby elephant,
can not look under
the bed, open
envelopes, in size 10
shoe, etc…
• You can give consent to a search
• A Third party consent extends to the areas
shared in common
• Male can not give consent to female
roommate’s purse even if in an area of the
house shared by both
• Male gave consent to search for drugs, whole
entire apartment would be under authority
• Police are not required to advise people of
their right to refuse when asking for
permission to search
• Vehicle search based on probable cause
• If they had to leave to secure a warrant, the
vehicle would be gone
• Can search if they believe vehicle contains
evidence that they may lawfully seize
• If looking for a stolen television, can not
look in your purse
• Traffic Stop-officer can order all passengers
to get out of the car
• 1997 Supreme Court reversed previous
ruling
• William Rehnquist said the intrusion on the
passenger's privacy is minimal and not a
violation of the Fourth Amendment.
Weeks v. United States
• Missouri state law enforcement agents, without a proper warrant,
conducted a raid on the home of Mr. Weeks. They were looking to
obtain any evidence that Mr. Weeks was guilty of the crime of
gambling.
• The state law enforcement agents returned later with a federal marshal
and a federal postal inspector in order to search for more evidence.
The drawers were searched; letters and envelopes were seized as
evidence without a police warrant and not long after that, Mr. Weeks
was arrested in Kansas City, Missouri.
• He was charged with a federal crime because evidence turned up that
he was using the mail to send lottery tickets
• Weeks was tried and convicted on federal charges
• During his trial, he demanded the return of his personal effects, which
had been seized as evidence during warrantless searches by state
officers and a federal marshal, and their exclusion as evidence in the
trial.
• When the court refused, Weeks took the case to the Supreme Court on
the basis that use of illegal evidence violated his rights
Weeks v. U.S. cont.
• In a unanimous decision, the Court held that the seizure of
items from Weeks' residence directly violated his
constitutional rights.
• The Court also held that the government's refusal to
return Weeks' possessions violated the Fourth
Amendment.
• To allow private documents to be seized and then held as
evidence against citizens would have meant that the
protection of the Fourth Amendment declaring the right
to be secure against such searches and seizures would be
of no value whatsoever.
• This was the first application of what eventually became
known as the "exclusionary rule." (federal cases only)
Motion to suppress evidence = Exclusionary
Rule
Mapp v. Ohio est. this rule to include Federal
and State cases
Mapp v. Ohio 1961
• Dollree Mapp lived in Cleveland, Ohio. One day, the police
broke into Mapp's house to look for a suspected bomber. Mapp
had refused to let the police into her house earlier because they
did not have a search warrant. When the police broke in, they
showed Mapp a piece of paper. They said the paper was a
search warrant, but they did not let her see it.
• The police searched Mapp's house without her permission.
They looked in her room, her daughter's bedroom, the kitchen,
the living room, and the basement. In the basement they found
a trunk. Inside the trunk were obscene pictures, photographs,
and books. The police did not find the bomber, but they
arrested Mapp anyway. They said she broke the law by having
obscene pictures.
• The court found her guilty.
• Supreme Court of the United States overturned the conviction
• The Fourth Amendment to the U.S. Constitution protects people
from unreasonable searches by the government.
Mapp v Ohio cont.
• The Court declared that "all evidence obtained by
searches and seizures in violation of the Constitution
is, by [the Fourth Amendment], inadmissible in a
state court."
• Mapp had been convicted on the basis of illegally
obtained evidence.
• This was an historic -- and controversial -- decision.
• It placed the requirement of excluding illegally
obtained evidence from court at all levels of the
government.
• The decision launched the Court on a troubled course
of determining how and when to apply the
exclusionary rule.
Exclusionary Rule
•
•
•
•
Rule is still unclear
“Good faith” exceptions
Scope of flexibility w/out a warrant is undefined
Typically courts tilt in favor of the law enforcement
officials
Search under Exigent Circumstances
• Hot pursuit
• Threat to safety
– Police may engage in protective sweeps,
weapons search or frisk
• Threatened destruction of evidence
Abandoned Property
• Garbage
1.
2.
3.
4.
5.
6.
7.
8.
9.
Searches w/out warrants
During lawful arrest, search the person and
surrounding area “grab area”
Conduct “protective sweep” home for
potentially armed persons
“Stop and Frisk” suspicious person
“Plain Feel” seize drugs during frisk
During consent
Hot pursuit
Vehicles with a probable cause
Emergency situations (serious crimes)
Border and Airport searches
Technology- “plain view”
• The Supreme Court has in recent years upheld a
number of police surveillance techniques on the
grounds that they did not constitute searches under
the Constitution.
• Tactics okayed by the Court include the use of drugsniffing dogs, the use of binoculars to look in a yard,
and the use of low flying airplanes and helicopters to
spy on private property.
• In all of those instances, the court held that officers
were free to use their senses to peer into a private
area.
• Sophisticated surveillance devices that can see
through walls are different, the court held. Allowing
warrantless searches with such devices "would leave
the homeowner at the mercy of advancing technology
-- including imaging technology that could discern all
human activity in the home," Scalia wrote.
– Heat sensors for warrrantless drug searches
Suspicionless Searches
Controversial
• Example:
Sobriety checkpoints
Metal detectors
Random drug testing
Stratford High School in Goose Creek, S.C.
Border control
Prison cell searchers
Mass transit
Racial Profiling Exist?
4th Amendment and Schools
School searches
• The United States Supreme Court also held that
School children have legitimate expectations of
privacy and are protected against an illegal search
by the police.
• HOWEVER
• search of a student by a school official will be
justified when there are reasonable grounds for
suspecting that the search will turn up evidence
that the student has violated or is violating either
the law or the rules of the school
Public School Searches
• New Jersey v. TLO (1985)
• “school official may properly conduct a search
of a student's person if the official has a
reasonable suspicion that a crime has
been…committed, or reasonable cause to
believe that the search is necessary to
maintain school discipline….” In other words,
in a school, a search could be reasonable
under the 4th Amendment without probable
cause, so long as it was supported by
reasonable suspicion or reasonable cause
• In 1980,NJ a teacher found T.L.O. and another girl
smoking in a restroom—a place that was by school
rule a nonsmoking area. The two girls were taken to
the principal's office where T.L.O.'s companion
admitted that she had been smoking in the restroom.
T.L.O. denied smoking there. She denied that she
smoked at all. An assistant vice-principal demanded to
see T.L.O.'s purse. Searching through it he found a
pack of cigarettes. He also found rolling papers, a pipe,
marijuana, a large wad of dollar bills, and two letters
that indicated that T.L.O. was involved in marijuana
dealing at the high school.
Drug Testing for schools
• 2002, the Supreme Court considered a case challenging a Tecumseh,
Oklahoma policy of drug-testing all high school students who participate
in extracurricular activities.
• Parents of Lindsey Earls sued when school officials forced Lindsey to
provide a urine sample before she sang in the high school choir and
participated on an academic quiz team.
• Lindsey (who is now a student at Dartmouth) described the experience as
"horrible--someone would stand outside the bathroom stall and listen."
• The 10th Circuit Court of Appeals ruled that the Tecumseh policy was
unreasonable, failing to meet the "special needs" requirement of
Vernonia.
• "students within the school environment have
a lesser expectation of privacy than members
of the population generally."
• The Court, by a 5 to 4 vote reversed the 10th
Circuit and upheld the school's drug testing
policy.
Strip-search at school
Supreme Court Summer 2009
• Arizona school officials violated the constitutional rights of a
13-year-old girl when they strip-searched her on the
suspicion she might be hiding ibuprofen in her underwear,
the Supreme Court ruled yesterday. The decision put school
districts on notice that such searches are "categorically
distinct" from other efforts to combat illegal drugs.
• It IS reasonable to search the girl's backpack and outer
clothes
• "The meaning of such a search, and the degradation its
subject may reasonably feel, place a search that intrusive in a
category of its own demanding its own specific suspicions,"
• http://www.usatoday.com/news/washington/judicial/200904-21-supreme-court-strip-search_N.htm
• Minors generally have the same rights as adults. For example,
minors can refuse searches and decline to answer questions
without an attorney present.
• Nonetheless, minors face unique challenges when attempting to
exercise these rights. Young people are highly susceptible to
coercion by authority figures, and are easily convinced to waive
their rights. Police will often take advantage of this by telling
young people: “You’re underage. You don’t have any rights.” This,
of course, is a lie.
• The rights of minors are also undermined by the fact that young
people tend not to own property. Young people often use shared
spaces, both at home and at school, which are controlled by
adults. Since property owners may grant access to police and
even authorize searches in many cases, young people have a
reduced ability to protect their 4th Amendment rights when
sharing space with others. The best protection is to clearly mark
your own property so that it’s clear that it’s yours. Even your
parents can’t consent to a search of something that’s clearly
yours alone.