CONSTITUTION DAY
Rights of the Accused: The Arrest
An anonymous tip came into the police
department that a high school student with a
red backpack and walking stick would be
carrying a significant amount of marijuana in
the backpack. The tipster described the
suspect and the location where he would be
walking. Officers were apprised of the tip at roll
call. Officer Ramirez heard the tip at roll call.
The area stated in the tip is the area of Officer
Ramirez’s patrol.
As Officer Ramirez was on patrol, he saw a
teenager matching the description of the person
in the tip. The backpack was red and he was
walking with a walking stick around the time that
the tipster stated. Officer Ramirez turned on his
lights and siren. He pulled over and asked the
person to stop. The person was Joe.
Should Joe stop?
Why should Joe stop when asked by Officer
Ramirez?
What Constitutional amendment is applies at
this point?
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.
A police officer may approach and detain a
person for the purpose of investigating
possible criminal behavior even if there is no
probable cause to support an arrest.
A brief detention does not violate the Fourth
Amendment if the officer has a reasonable
and articulable suspicion that the person has
committed or is about to commit a crime.
Does Officer Ramirez have a reasonable and
articulable suspicion in
order to stop Joe or is there an unlawful
seizure?
Joe walked over to the front of the police
vehicle. Officer Ramirez asked Joe his name.
Joe refused to answer the question.
Can Joe refuse to identify himself?
When an officer approaches a person and seeks
voluntary cooperation through noncoercive
questioning, there is no restraint on that person’s
liberty, and that person is not seized.
Joe provided his identification to Officer
Ramirez. Officer Ramirez ran the information
through LEIN and there were no warrants.
Officer Ramirez returned Joe’s identification
and asked Joe where he was going. Joe did not
answer. Officer Ramirez asked to search the
backpack. Joe did not answer and began to
walk away. Officer Ramirez put his hand on
Joe’s shoulder and stated that he could not
leave.
Is there a seizure when Officer Ramirez stopped
Joe from leaving?
“A ‘seizure’ within the meaning of the Fourth
Amendment occurs only if, in view of all the
circumstances, a reasonable person would
have believed that he was not free to leave.”
People v Jenkins, 472 Mich 26, 32 (2005)
Officer Ramirez led Joe to the front of the police
vehicle and patted Joe down.
If Joe is not under arrest, can Officer Ramirez
pat down Joe?
During an investigatory stop based on a
reasonable and articulable suspicion, a police
officer is entitled to conduct a limited search of
the outer clothing of the person to determine if
the person has any weapons that may be used
against the police officer.
While Officer Ramirez was patting Joe down, he
felt something that he immediately determined
to be a pill bottle underneath Joe’s sweatpants
in the leg and groin area. Officer Ramirez knew
that controlled substances are sometimes
hidden in pill bottles near the groin area.
Officer Ramirez removed the bottle and opened
it. It was a prescription drug from Joe’s doctor.
Was the search for the pill bottle unreasonable?
The plain feel exception to the warrant
requirement allows seizure without a warrant of
an object felt during a legitimate patdown
search for weapons when the identity of the
object is immediately apparent and the officer
has probable cause to believe that the object is
contraband.
Officer Ramirez asked Joe why the prescription
bottle was located in his groin area. Joe did not
answer. Officer Ramirez asked Joe for consent to
search the backpack and Joe stated, “No.” Officer
Ramirez opened the backpack and found what
appeared to be two packages of marijuana. Officer
Ramirez then handcuffed Joe and advised that he
was under arrest for possession with intent to
deliver marijuana.
Was the search of the backpack reasonable?
The applicable test in determining the
reasonableness of an intrusion is to balance the
need to search, in the public interest, for
evidence of criminal activity against invasion of
the individual’s privacy.
Generally, a search conducted without a
warrant is unreasonable unless there exist both
probable cause and exigent circumstances
establishing an exception to the warrant
requirement.
Probable cause to search exists when facts and
circumstances warrant a reasonably prudent
person to believe that a crime has been
committed and that the evidence sought will be
found in a stated place. Whether probable
cause exists depends on the information known
to the officers at the time of the search.
The recognized exceptions to the warrant
requirement are exigent circumstances,
consent, and plain view.
The exigent circumstance exception is applicable
where the police have probable cause to believe
that an immediate search will produce specific
evidence of a crime and that an immediate search
without a warrant is necessary in order to (1)
protect the officers or others, (2) prevent the loss
or destruction of evidence, or (3) prevent the
escape of an accused.
Do any of these exceptions apply in this case?
The plain view exception allows the seizure of
objects within the plain view of an officer who
has a right to be in the position to have that
view.
1.
2.
3.
Three conditions must be satisfied:
There must be prior justification for the
officer’s intrusion into an otherwise
protected area.
The evidence must be obviously
incriminatory or contraband.
The discovery must be totally inadvertent.
The consent exception permits searches and
seizures when consent is unequivocal and
specific, and freely and intelligently given.
Ordinarily, the consent to search is given by the
person affected. A third party may consent to
the search when the consenting person has an
equal right of possession or control over the
premises.
A consent can be valid even if the person is not
apprised of his right to refuse consent.
Generally, if evidence is unconstitutionally
seized, it must be excluded from trial.
Exclusion of improperly obtained evidence
serves as a deterrent to police misconduct and
preserves judicial integrity.
The exclusionary rule applies not only to
evidence improperly seized during a search
without a warrant, but to evidence subsequently
seized pursuant to a warrant as a result of an
initial illegal search.
Evidence is not to be excluded if the connection
between the illegal police conduct and the
discovery, search, and seizure of the evidence is
so attenuated as to dissipate the taint, such as
when the government learns from evidence from
an independent source or would have inevitably
discovered the evidence regardless of the
unconstitutional conduct.
Further, the exclusionary rule applies only if the
evidence was obtained by official impropriety
which was directed at the person moving for
suppression. The test is whether the person had a
reasonable expectation of privacy in the object or
area of the intrusion.
Officer Ramirez took Joe to the police department.
Joe was fingerprinted and his mug shot was taken.
Officer Ramirez then took Joe to a interrogation
room with only one chair. Joe had to stand with his
hands cuffed behind his back. Officer Ramirez
questioned Joe regarding his intentions with the
marijuana, who he obtained it from, and whether it
was his. For the first few hours, Joe said nothing.
He was getting hungry, tired, and sore from being in
the interrogation room for four hours without sitting
down.
Are there any concerns at this point?
After three and a half hours of interrogation and
standing, Joe admitted that the marijuana was his, that
he intended to sell it, and that the marijuana was given
to him by his stepfather, Alex, who was forcing him to
sell the marijuana at school. Joe was held for
arraignment on charges of conspiracy and intent to
deliver. After Joe confessed to the marijuana and
implicated Alex, Officer Ramirez requested a search
warrant for Alex’s home based on the statements made
by Alex and uncovered 15 marijuana plants in the
home. Alex was arrested and charged as well.
What Constitutional provision is being affected?
FIFTH AMENDMENT
No person shall be held to answer for a capital, or
otherwise infamous crime, unless a presentment
or indictment of a grand jury, except in cases
arising in the land or naval forces, or in the militia,
when in actual service in time of war or public
danger; nor shall any person be subject to the
same offense to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of
law; nor shall private property be taken for public
use, without just compensation.
What should Joe have been given prior to
interrogating him at the police department?
MIRANDA WARNINGS
You have the right to remain silent. Anything
you say can be used against you in court. You
have the right to an attorney. If you cannot
afford an attorney, one will be provided for you
at no cost.
Miranda warnings must be given to an
individual in custody or otherwise deprived of
his freedom by the authorities in any
significant way and is subjected to
questioning.
Miranda v Arizona, 384 US 436, 479 (1966)
Can a person waive his or her
right to remain silent?
FACTORS TO CONSIDER WHETHER WAIVER IS
VOLUNTARY, KNOWING, AND INTELLIGENT:
• Age of the accused;
• Intelligence level of defendant;
• Extent of previous experience with police;
• Repeated and prolonged nature of questioning;
• Length of detention before giving statement in question;
• Lack of any advice to the accused of his constitutional rights ;
• Any unnecessary delay in bringing before magistrate before
giving confession;
• Any deprivation of food, sleep, or medical attention;
• Whether there was any physical abuse; and
• Whether there were threats of abuse.
The ultimate test of admissibility is whether the totality of
the circumstances surrounding the making of the
confession indicates it was freely and voluntarily made.
Did Joe voluntarily, knowingly, and intelligently waive his rights?
Before Joe admitted to possessing the marijuana
for sale, his stepfather retained an attorney. The
attorney, John B. Good, went to the police
department and asked to speak with his client. His
request was denied. No one told Joe that he had an
attorney wishing to speak with him.
In Michigan, if an retained attorney is
immediately available and the police fail to notify
the suspect and the suspect confesses without
the attorney present, then the waiver is not
knowing and intelligent.
This differs from a ruling made by the United
States Supreme Court with regards to the federal
Constitution.
The U.S. Supreme Court held that events outside
the room where a suspect is housed have no
bearing on the capacity to comprehend and
knowingly relinquish a constitutional right.
How can Michigan law differ from the United
States Supreme Court’s decision?
The Michigan Constitution imposes a stricter
requirement for a valid waiver of the rights to
remain silent and to counsel than imposed by the
federal Constitution.
Shortly after arresting Alex, Officer Ramirez brought
Joe into the same interrogation room. At this time,
Officer Ramirez gave the Miranda Warnings to Joe
and asked if Joe waived them. Joe signed a waiver
and admitted to possessing the marijuana with the
intent to sell it.
Does this second interrogation with Miranda
Warnings fix the issues with the previous
interrogation?
No.
The U.S. Supreme Court held that “[t]hese
circumstances must be seen as challenging the
comprehensibility and efficacy of the Miranda
warnings to the point that a reasonable person in
the suspect’s shoes would not have understood
them to convey a message that [the suspect]
retained a choice about continuing to talk.”
Alex files a motion to suppress Joe’s statement
regarding Alex’s involvement for failure to
provide Miranda warnings to Joe.
Will Alex be successful?
No.
A person does not have standing to raise the
issue of violation of rights of third parties.
Should Officer Ramirez have searched the
backpack without a warrant?
Is Joe’s confession admissible against him?
Why?
Is Joe’s confession admissible against Alex?