CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH
The 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.
CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH
The 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.
PROBABLE CAUSE
Absolute
Certainty
Proof Beyond a
Reasonable Doubt
(Articulable) Reasonable
Suspicion
Probable
Cause
Possibility /
Hunch
PROBABLE CAUSE
In layman’s terms, how will you
define Probable Cause for a jury.
A reasonably prudent person would
believe:
–that a crime has been
committed
–that the person to be arrested
has committed that crime
PROBABLE CAUSE
Test for Probable Cause
The focus in determining
probable cause is not on the
certainty that a crime was
committed, but on the likelihood
of it.
Don’t have to be RIGHT; but, you
do have to be REASONABLE
Indications of Criminal Activity That May Contribute
to a Finding of PROBABLE CAUSE
Suspect Demeanor or Reaction to Officer
Flight is one factor to be considered.
Sibron v. New York (1968) ~ “Deliberately
furtive actions and flight at the approach of
strangers or law officers are strong indicia
of mens rea (a guilty mind), and when
coupled with specific knowledge on the
part of the officer relating the suspect to
the evidence of the crime, they are proper
factors to be considered in the decision to
make an arrest.”
Indications of Criminal Activity That May Contribute
to a Finding of PROBABLE CAUSE
Suspect Demeanor or Reaction to Officer
Flight in itself will not independently
support a probable cause finding.
Wong Son v US (1963) ~ officers
responded to a suspect's home who was
believed to be selling heroin. When the
suspect answered the door he turned and
ran with officers in pursuit. The court
found that his subsequent seizure was
invalid because officers did not have
probable cause to arrest him simply
because he ran away.
POLICE AUTHORITY TO DETAIN
Looking at the right of police officers to stop a
suspect under circumstances in which there
was insufficient grounds for an actual arrest
Requires REASONABLE ARTICULABLE
SUSPICION
This does NOT authorize
police to detain anyone
on mere SUSPICION
or a HUNCH!
Beyond Reasonable Doubt
Clear and Convincing
Trial
Preponderance
_____
Investigation
Probable Cause
Reasonable Suspicion ~ articulable (explain the facts)
Hunches or Whims ~ can’t articulate
POLICE AUTHORITY TO DETAIN
Terry v. Ohio, 1968
In Terry, the US Supreme Court upheld the
authority of the police to stop or detain (or
seize) a person where the officer observes
unusual conduct which leads the officer
reasonably to conclude, in light of his/her
experience (including training), that criminal
activity may be afoot.
“Terry Stop” vs. “Terry Frisk”
POLICE AUTHORITY TO DETAIN
Terry v. Ohio, 1968
A Terry Stop - an investigative detention of a
suspect. Not a search!
Officers can conduct a Terry Stop with
reasonable (articulable/explainable) suspicion
that criminal activity is afoot.
Officers can stop a suspect and investigate
that person for a reasonable period of time.
Even though its not a formal arrest, it is a
seizure under the 4th Amendment.
Reasonable Suspicion + Armed & Dangerous =
Terry requires an officer to articulate a
reasonable belief that a suspect is armed
and poses a threat before the officer is
permitted to conduct a limited “Pat Down”
of the suspect’s outer clothing.
Just because I can “Terry Stop” someone
doesn’t
automatically give me
the
right to frisk them for a
weapon.
CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH
The 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.
CONSTITUTIONAL FOUNDATION TO ARREST & SEARCH
The 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.
Frisking Containers
An officer who finds a closed
container within lunging distance of a
suspect who is being lawfully
stopped and frisked, may open the
container to see if it contains a
weapon if:
in light of the officer’s experience
and training the item could contain
a weapon, and
the container is NOT locked
POLICE AUTHORITY TO DETAIN
Terry v. Ohio, 1968
Search or “Frisk” is going to be limited
to searching for hard objects…
That the suspect could use to hurt the
officer like guns, pocket knives, mace,
clubs, …
Not limited to just those things we
ordinarily think are weapons…
It could also be things like car keys or
pens because those could hurt an
officer as well…
POLICE AUTHORITY TO DETAIN
Terry v. Ohio, 1968
While an officer may want to conduct
a frisk for “officer safety” purposes,
the law requires more than that.
Reasonable suspicion that someone’s
presently armed and dangerous is just
what it sounds like, but most
importantly, the officer has to
have facts to support that
conclusion.
POLICE AUTHORITY TO DETAIN
Terry v. Ohio, 1968
Look, Feel, Crush and Twist – FLETC
You can manipulate hard objects as much
as necessary to ensure they are not
weapons! You may NOT manipulate soft
objects that could not be a weapon.
If your actions are
reasonable and
executed only to
determine whether the
suspect possesses a
weapon, then the
“Terry Frisk” is
constitutionally proper
POLICE AUTHORITY TO DETAIN
Terry v. Ohio, 1968
Example: Can you conduct a Terry Stop of
someone if there is reasonable
(articulable/explainable) suspicion he is in
possession of a stolen credit card?
The officer will want to conduct a brief
detention to investigate further.
Is there anything about being in
possession of stolen credit cards that
would automatically lead you to believe the
person is armed and dangerous?
Without additional facts: a Terry Stop is
authorized, but not a Terry Frisk
POLICE AUTHORITY TO DETAIN
Terry v. Ohio, 1968
Offenses like drug distribution or burglary
just go with weapons.
Courts have held that people who sell drugs
most often carry weapons to protect their money
and product.
Burglars need burglary tools - things to break
windows, screw drivers, and crow bars to pry
doors open.
In Terry the detective had
reasonable suspicion to
believe an armed robbery
was afoot.
POLICE AUTHORITY TO DETAIN
Terry v. Ohio, 1968
Reasons For The Frisk: Articulating
Your Reasonable Suspicion
• Person’s
• Time of Day
Appearance
• Law
• Person’s Actions
Enforcement
Purposes
• Prior Knowledge
of the Person
• Companion
• Location
Scenario #1
A male comes into your agency to
retrieve property from his impounded
vehicle. You run a warrant check and
learn that there is an outstanding
felony arrest warrant for the male in
an adjacent jurisdiction. You arrest the
male; and, incident to the
arrest, confiscate meth and a
firearm from his person.
Scenario #1
Later on, you discover that the warrant
had been recalled nearly three (3)
months ago; however, the other
Agency, unbeknownst to you, forgot to
pull the warrant.
Since a police agency made the
mistake and another police agency will
be benefitting from the mistake by the
admission of the evidence, should
this evidence be excluded?
Scenario #1
“When police mistakes leading to an
unlawful search are the result of
isolated negligence attenuated from
the search rather than systemic error
or reckless disregard of constitutional
requirements, the exclusionary rule
does not apply.”
Herring v. U.S.,(Jan 14, 2009)
U.S. v. Quinney,
October 01, 2009
Under the inevitable-discovery
doctrine, if the prosecution can
establish by a preponderance of the
evidence that the information
ultimately or inevitably would have
been discovered by lawful means,
then the deterrence rationale
of the exclusionary rule has
so little basis that the
evidence should be received.
U.S. v. Quinney,
October 01, 2009
However, the inevitable-discovery
doctrine does not permit police, who
have probable cause to believe a
home contains contraband, to enter
a home illegally, conduct a
warrantless search and escape the
exclusionary rule on the ground that
the police could have obtained
a warrant yet chose not to do
so.
The Exclusionary Rule
“The fact that a search or arrest was
unreasonable does not necessarily
mean that the exclusionary rule
applies.” Illinois v. Gates, (1983).
“The [exclusionary] rule is not an
individual right and applies only where
its deterrent effect outweighs the
substantial cost of letting guilty and
possibly dangerous defendants go free.”
U.S. v. Leon, (1984)
Florida v. Powell,
U.S. 1898, Feb 23, 2010
• Miranda warnings that failed to expressly
state that the suspect had a right to have
a lawyer present during the questioning,
but advised that he had “the right to talk
to a lawyer before answering any of our
questions” and the right to exercise that
right at “anytime you
want during this
interview,” adequately
conveyed his rights
under Miranda.
Maryland v. Shatzer,
1899, (Feb 24, 2010)
A break in Miranda custody of
fourteen (14) days provides ample
time for the suspect to get reacclimated to his normal life, to
consult with friends and family and
counsel, and shake
off any residual
coercive effects of
prior custody.
Maryland v. Shatzer,
1899, (Feb 24, 2010)
If a suspect invokes counsel under
Miranda while in custody and is then
released, nothing prohibits law
enforcement from approaching,
asking questions, and obtaining a
statement without the Miranda
lawyer present from
the suspect who
remains out of
custody.
U.S. v. Panak,
Circuit (Jan 09, 2009)
6th
Should the officers subjective knowledge
determine when to advise Miranda?
An officer’s knowledge of an individual’s
guilt may bear upon the custody issue NOT because the officer possesses
incriminating evidence but because he
HAS conveyed it… and thus
has used the information to
create a hostile, coercive,
freedom-inhibiting
atmosphere.
U.S. v. Panak,
Circuit (Jan 09, 2009)
6th
That is why such knowledge is
relevant only if…
1. …it was somehow manifested to the
individual under interrogation and
2. …it would have affected how a
reasonable person in
that position would
perceive his or her
freedom to leave.
AUTHORITY TO ENTER: WARRANTLESS SEARCH &
ARREST
1. Fresh Pursuit (“Hot Pursuit”)
2. Immediate Destruction of Evidence
3. Public Safety and/or Welfare
4. Prevent Escape of a Suspect
MICHIGAN v. FISHER, 2009
Police officers responded to a complaint
of a disturbance
A couple directed them to a residence
where a man was "going crazy"
Officers found a household in
considerable chaos: a pickup truck in
the driveway with its front smashed,
damaged fence posts along the side of
the property, and three broken house
windows, the glass still on the ground
outside
MICHIGAN v. FISHER, 2009
Officers also noticed blood on the
hood of the pickup and on clothes
inside of it, as well as on one of the
doors to the house
Through a window, the officers could
see respondent, Jeremy Fisher, inside
the house, screaming and throwing
things. The back door was locked,
and a couch had been placed to block
the front door.
MICHIGAN v. FISHER, 2009
They saw that Fisher had a cut on his
hand, and they asked him whether he
needed medical attention. Fisher ignored
these questions and demanded, with
accompanying profanity, that the officers
go to get a search warrant
Officer Goolsby then pushed the front
door partway open and ventured into the
house. Through the window of the open
door he saw Fisher pointing a long
gun at him. Officer Goolsby withdrew
MICHIGAN v. FISHER, 2009
Fisher was charged under Michigan law
with assault with a dangerous weapon
and possession of a firearm during the
commission of a felony
Michigan Supreme Court: Search did not
meet the “Exigent Circumstance”
requirement since Fisher was alone and
the officers did NOT really believe he
needed immediate medical assistance.
Is the search a violation under the
4th Amendment?
MICHIGAN v. FISHER, 2009
It would be objectively reasonable
to believe that Fisher's projectiles
might have a human target
(perhaps a spouse or a child), or
that Fisher
would hurt
himself in the
course of his
rage.
MICHIGAN v. FISHER, 2009
Officers do not need ironclad proof of "a
likely serious, life-threatening" injury to
invoke the emergency aid exception.
Moreover, even if Goolsby did not
subjectively believe, that Fisher or
someone else was seriously injured, the
test is NOT what Officer Goolsby believed…
…but whether there was "an objectively
reasonable basis for believing" that
medical assistance was needed, or persons
were in danger
Mobile Conveyance
Exception
2 requirements to search
1. Must be probable cause to believe
that evidence of a crime or
contraband is located in the vehicle
to be searched.
2. The vehicle be
“readily mobile.”
Carroll v. United States
(1925)
If an officer stops a car based on
probable cause and conducts a search
in order to preserve evidence due to
the automobile‘s mobility, the search
may be conducted without a warrant.
Chambers v. Maroney
(1970)
A warrantless search of a
vehicle is valid despite the fact
that a warrant could have
been procured
without endangering
the preservation of
evidence.
United States v. Ross
(1982)
If probable cause justifies the
search of a lawfully stopped
vehicle, it justifies the search
of every part of the vehicle
and its contents that
may conceal the
object of the search.
Maryland v. Dyson
(1999)
Officers are not required to
obtain a search warrant for a
mobile conveyance even if
they have
time to
secure one.
California v. Carney
(1985)
A motor home is treated as a
vehicle, rather than a
dwelling, if it is
immediately mobile.
California v. Acevedo (1991)
In a search extending to a container
located in an automobile, police may
search the container without a warrant
where they have probable cause to
believe that it holds contraband or
evidence.
Wyoming v. Houghton (1999) The
mobile conveyance exception to the 4th
Amendment‘s warrant requirement
allows the officers to search
passengers‘ containers.
OHIO v. MOORE (2000),
90 Ohio St.3d 47.
The smell of marijuana, alone, by a
person qualified to recognize the
odor, is sufficient to establish
probable cause to conduct a search.
There need be no additional factors
to corroborate the
suspicion of the
presence of marijuana.
OHIO v. HOWARD,
(2008)
Ohio-2706
In Ohio v. Farris, the Ohio Supreme
Court fleshed out the “plain-smell”
doctrine by holding that the odor of
burned marijuana in the passenger
compartment of a vehicle does not,
standing alone, establish probable
cause for a warrantless search of the
trunk of the vehicle
OHIO v. HOWARD,
(2008)
Ohio-2706
Here, the officers, who were trained and
experienced in detecting the odor of
unburned marijuana, both testified that
they had smelled a strong odor of
unburned marijuana emanating from the
car, not just a light odor.
But, more specifically, each officer
specifically testified that the odor of the
unburned marijuana was coming from the
trunk of the car.
U.S. v. Foster,
No.02-3859 (7/20/2004)
“Accordingly, when the officers
detected the smell of marijuana
coming from Foster’s vehicle, this
provided them probable cause to
search the vehicle without a search
warrant. U.S. v. Elkins, 300 F.3d
38 (6th Cir. 2002) This therefore
turned a lawful Terry stop into a
lawful search.”
Arizona v. Gant
(April 21, 2009)
Police may search a vehicle incident to
the arrest of an occupant ONLY in two
circumstances:
1. when the arrestee is unsecured and
within reaching distance of the
passenger compartment at the time of
the search (the safety rationale); or
2. when it is reasonable to believe
evidence relevant to the crime
might be found in the vehicle
(the evidentiary rationale).
U.S. v. Lopez,
6th Circuit (June 01, 2009)
Defendant was not within reaching
distance of his vehicle’s passenger
compartment at the time of the
search, he was handcuffed in the
back seat of the patrol car by then.
No reason to think the vehicle
contained evidence of the
offense of arrest, since that
offense was reckless driving.
U.S. v. Lopez,
6th Circuit (June 01, 2009)
“The 73 grams of crack cocaine, a set of
digital scales, and a Glock .40 caliber
handgun loaded with ten rounds of
ammunition which formed the basis of his
conviction for possession with the intent to
distribute and for carrying a firearm in
relation to a drug trafficking
crime are inadmissible.
Defendant’s conviction is
vacated.”
U.S. v Vinton,
D.C. (Feb. 5, 2010)
Maxima speeding with window tint
violation.
Observed a law enforcement
“blue line” sticker on the car.
The officer asked Vinton if he worked
in law enforcement, and he replied
“personal security.”
Observed knife with a five and a half
inch sheath on the back seat.
U.S. v Vinton,
D.C. (Feb. 5, 2010)
The officer asked Vinton what the
knife was for; he said he used it when he
went fishing with his grandfather.
The officer removed the knife from the car
and put it out of reach on Vinton’s roof
and asked if there were any other
weapons in the car.
Vinton replied that there was not.
The officer returned to his police vehicle to
write a citation.
U.S. v Vinton,
D.C. (Feb. 5, 2010)
The officer (with MPD) then returned to
Vinton and told him that he was going to
search his car for weapons.
The officer again asked if there were any
other weapons in the car and Vinton
replied there was not.
The officer asked about weapons again
and Vinton replied “not that I know of.”
The officer had Vinton exit his car and he
handcuffed him, while telling him he was
not under arrest.
U.S. v Vinton,
D.C. (Feb. 5, 2010)
Officer found a “butterfly knife”
under the front passenger-side floor mat, as
well as 2 cans of mace and a bag of
Styrofoam earplugs; and a locked briefcase
that was on the backseat. “The briefcase
isn’t mine”.
The officer then pried open the locked
briefcase and searched it incident to arrest.
Briefcase contained three bags of ecstasy,
three pistol magazines, a fighting knife, and
a loaded .45 pistol
U.S. v Vinton,
D.C. (Feb. 5, 2010)
The Fourth Amendment issues :
Whether the officer violated the Fourth
Amendment in conducting the limited
search (frisk) of Vinton’s vehicle for
weapons?
Whether the officer had probable cause
to arrest Vinton for the weapons charge
that led to the search incident to arrest?
Whether the officer was justified under
Arizona v. Gant to search the briefcase
incident to arrest?
U.S. v Vinton,
D.C. (Feb. 5, 2010)
An officer can order the driver out of his
car and conduct a limited search of the
passenger compartment for weapons if
the officer has reasonable suspicion that
the driver is dangerous and may gain
immediate control of
weapons inside the car.
Michigan v. Long
U.S. v Vinton,
D.C. (Feb. 5, 2010)
Based on the totality of the
circumstances, the court held that the
officer…
…had a reasonable belief, based on
specific and articulable facts, that
Vinton was armed and dangerous…
Thus, he properly searched (frisked)
the passenger compartment of
Vinton’s car for additional weapons.
U.S. v Vinton,
D.C. (Feb. 5, 2010)
Since Vinton was handcuffed the search
incident to his arrest cannot be justified
under the safety rationale from Gant.
Thus, the court had to consider whether the
evidentiary rationale from Gant was met
during the search of briefcase.
Since the officer had already found two
knives, two cans of mace, and ear plugs, it
was reasonable to believe that additional
weapons might be found in the briefcase.
U.S. v Vinton,
D.C. (Feb. 5, 2010)
“Because it was reasonable to believe
evidence relevant to the crime of
arrest might be found in the vehicle,
[the officer] had the right to search
the passenger compartment of
Vinton’s car and any
containers therein,
including the locked
briefcase”
Ohio v. Jones,
121 Ohio St. 3d (2009)
“A law enforcement officer who
personally observes a traffic
violation while outside the officer’s
statutory territorial jurisdiction has
probable cause to make a traffic
stop; the stop is not unreasonable
under the Fourth Amendment to
the United States Constitution.”
Consent Search
1st - The consent must be voluntarily
given
Consent cannot be coerced, by
explicit or implicit means, by
implied threat or covert force
2nd – Person has authority over the
place to be searched
An individual may limit
the scope of any consent
U.S. v. Everett,
April 06, 2010 6th CIRCUIT
There is no categorical ban on suspicionless,
unrelated questioning that may minimally
prolong a traffic stop.
The proper inquiry is whether the totality of the
circumstances surrounding the stop indicates
that the duration of the stop as a whole –
including any prolongation due
to suspicionless, unrelated
questioning – was reasonable.
U.S. v. Everett,
April 06, 2010 ~ 6th CIRCUIT
The overarching consideration is the
officer’s diligence in ascertaining
whether the suspected traffic
violation occurred, and, if necessary,
issuing a ticket.
Some amount of questioning
relevant only to ferreting out
unrelated criminal conduct is
permissible.
U.S. v. Hardin,
Circuit Aug 25, 2008
6th
Hardin out on parole was now wanted on
new felony warrant
Officer Kingsbury contacted landlord and
told him of Hardin’s warrant and a 1990’s
shootout with police
Landlord agreed to enter apartment using
a water leak as a ruse
Landlord was given consent to enter the
apartment and saw a male that fit
Hardin’s description
U.S. v. Hardin,
Circuit Aug 25, 2008
6th
Hardin abruptly arrested and firearm
found where he was sitting
Officer Turner, conducted a sweep of
the apartment’s other rooms and
found firearms in a shoebox under a
bed
U.S. v. Hardin,
Circuit Aug 25, 2008
6th
To demonstrate that a person was
acting as an agent of the government:
“First, the police must have instigated,
encouraged or participated in the
search” and
“Second, the individual must have
engaged in the search with the
intent of assisting the police in
their investigative efforts.”
U.S. v. Hardin,
Circuit Aug 25, 2008
In sum, because the officers urged the
apartment manager to investigate and
enter the apartment,
and the manager, …, had no reason or
duty to enter the
apartment, we hold
that the manager
was acting as an
agent of the
government.
6th
U.S. v Taylor,
(6th Cir. 2010)
Officers received a tip that Taylor, a
wanted fugitive, was staying in Arnett's
apartment.
However, she allowed the officers to
search. The officers found Taylor in a
bedroom, wearing only his underwear.
Arnett then gave verbal and written
consent to a more thorough
search. The officers did not seek
consent from Taylor.
U.S. v Taylor,
(6th Cir. 2010)
In a closet, officers found a shoe box
labeled for men's Nike shoes, covered by
an item of men’s clothing. The officers
searched the box and found a weapon,
ammunition and Taylor's jail identification
bracelet from his last stay in a county
hospitality suite.
Should the court suppress the evidence
found in the shoe box? Why?
U.S. v Taylor,
(6th Cir. 2010)
Arnett would not reasonably appear
to have authority over the shoe
box. The officers should have asked
further questions about control of the
room, closet and shoebox.
Ohio v. Smith,
(Dec 15, 2009)
Antwaun Smith was arrested on drug
charges after responding to cell phone call
made by a crack user acting as a police
informant. During the arrest, police
searched Smith and found a cell phone on
his person.
Later, police recovered bags containing
crack cocaine at the scene.
Officers subsequently searched the
contents of Smith’s phone without a
search warrant or his consent.
Ohio v. Smith,
(Dec 15, 2009)
They discovered call records and stored
numbers that confirmed prior calls
between Smith’s phone and the
informant’s phone number. Smith was
charged with possession of cocaine,
trafficking in cocaine, tampering with
evidence and two counts of possession of
criminal tools.
Should the evidence obtained
from the cell phone be
suppressed?
Ohio v. Smith,
(Dec 15, 2009)
…when the search is not necessary to
protect the safety of law enforcement
officers and there are no exigent
circumstances… police must obtain a
search warrant for the phones data…
U.S. v. Washington,
6th Circuit July 22, 2009
Wilson told Officer Rock that there were
two people in the unit. She did not request
his help or say they were trespassing.
Officer Rock claims that his unspoken
assumption at the time was that any
visitors were trespassing because the
landlord had previously told him that.
At Officer Rock’s request, Wilson agreed to
let the police search the apartment. Rock
stated he did not believe she had the
authority to consent to the search.
U.S. v. Washington,
6th Circuit July 22, 2009
Washington was among those who were
immediately visible, and he became
belligerent and told Rock that he was not
allowed in the apartment.
Officer Rock testified that drug
paraphernalia in the living room was in
plain view once he was inside the
apartment.
U.S. v. Washington,
6th Circuit July 22, 2009
Officer Rock asked the defendant if he had
anything illegal in his possession.
“You can’t search me.” Officer Rock
informed Washington that he was
suspected of criminal trespass and would
be patted down. (Good Frisk?)
Washington then stated, “I’m dirty.” .357
handgun and crack pipe.
U.S. v. Washington,
6th Circuit July 22, 2009
Young’s landlord continued accepting rent
after he discovered Washington lived on
the premises and after complaints of
possible drug activity in the apartment.
Did Washington have R.E.P. in his uncles
apartment?
Did Young’s failure to pay rent on a timely
basis in December 2006, the month of the
search, diminish his, and Washington’s
R.E.P.?
U.S. v. Washington,
6th Circuit July 22, 2009
The landlord’s mere authority to
evict a person cannot of itself
deprive that person of an objectively
reasonable expectation of privacy
A search of a home conducted
without a warrant violates the Fourth
Amendment with “only . . . a few
specifically established and welldelineated exceptions.”
U.S. v. Washington,
6th Circuit July 22, 2009
An ongoing criminal trespass, on its
own, does not constitute an exigency
that overrides the warrant
requirement.
Is there a
“true immediacy”
to forget the
warrant
requirement?
U.S. v. Brooks,
Circuit Feb 05, 2010
6th
2 LEOs executing arrest warrants
Brooks indicted for trafficking months
earlier answered the door and was
arrested.
Officers smelled a strong odor of
marijuana smoke from the residence.
Brooks indicated that he needed to put on
a pair of shoes and Officer Rhoades
accompanied Brooks to a bedroom to get
shoes.
U.S. v. Brooks,
Circuit Feb 05, 2010
6th
In the bedroom, Rhoades observed an
ashtray that contained marijuana
seeds.
Officers also conducted a patdown
search of Brooks and found $1,000 in
cash in his back pocket
Officers took Brooks out of the
residence and froze the scene and
obtained a search warrant based on
marijuana odor and seeds.
U.S. v. Brooks,
Circuit Feb 05, 2010
6th
Officers noticed scales and other drug
paraphernalia items in plain view but
failed to put that information into the
search warrant.
The district court found in favor of Brooks;
“the odor of marijuana and the presence
of marijuana seeds are, at best, evidence
of a minor misdemeanor, for which Brooks
could not be arrested under Ohio law.”
U.S. v. Brooks,
Circuit Feb 05, 2010
6th
The magistrate is not required to assume
that the defendant has just smoked his
last bit of marijuana immediately before
the officers arrived.
Instead, it is fairly probable under these
facts that where there
is smoke, there may
be more there to smoke.
Graham v. Connor (1989)
“Reasonableness” of the use of
force applied must be judged
from the perspective of the REASONABLE
OFFICER
The test is one of OBJECTIVE
REASONABLENESS. Whether the officers’
actions are “objectively reasonable” in
light of the facts and circumstances
confronting them, without regard to their
underlying intent or motivation
USE OF DEADLY FORCE
The use of deadly force to prevent the escape
of ALL felony suspects, whatever the
circumstances, is constitutionally unreasonable
When a suspect poses no immediate threat to
the officer and no threat to others, the harm
resulting from failing to apprehend him does not
justify the use of deadly force to do so
A police officer may not seize an unarmed, nondangerous felony suspect by shooting him
dead
USE OF DEADLY FORCE
Scott v. Harris, 2007
LIABILITY FROM VEHICLE
OPERATION
June 13, 2009
Moldowan v. City of Warren,
6th Circuit (July 01, 2009)
All witnesses — police officers as well as lay
witness — are absolutely immune from civil
liability based on their trial testimony in
judicial proceedings. As with any witness,
police officers enjoy absolute immunity for
any testimony delivered at adversarial
judicial proceedings… no matter how
egregious or perjurious that testimony was
alleged to have been
Law Enforcemnt Ethics
“…Police must obey the law while
enforcing the law” because “in the
end, life and liberty can be as
much endangered from illegal
methods used to convict those
thought to be criminals as from
the actual criminals themselves.”
Spano v. New York,
360 U.S.315 (1959)