Chapter Six – Arrests, Use of
Force, and Responses to
Terrorism
Rolando V. del Carmen
Arrests, Use of Force, and Responses to
Terrorism
 The Broad Picture: Seizures of Persons
– Seizure and the Fourth Amendment
– Arrest is just one type of seizure
Arrests, Use of Force, and Responses to
Terrorism
 The Broad Picture: Seizures of Persons
– Contacts which are not seizures
• General questions by police on the street to gather
general information
• The police asking a driver to get out of a car after being
stopped – Pennsylvania v. Mimms (1977)
• The police Asking questions of buss passengers that
they are free to refuse to answer – Florida v. Bostick
(1991)
• The police riding alongside a person “to see where he
was going” – Michigan v. Chesternut (1988) and asking
questions of witnesses to a crime
Arrests, Use of Force, and Responses to
Terrorism
 The Top Ten Degrees of Intrusiveness in
Searches and Seizures of Persons
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Surgery to remove a bullet from a suspect’s chest
Anal and cavity searches
Arrest
Removal of blood in a hospital
Stationhouse detention
Stop and frisk
Searches of a passenger’s belongings in motor vehicles
Immigration and border searches
Vehicle stops in general
Roadblocks to control the flow of illegal aliens
Arrests, Use of Force, and Responses to
Terrorism
 The Appropriate Test for Determining
Seizure
– Totality of the Circumstances
• Michigan v. Chesternut (1988)
– Reasonable Person
• United States v. Mendenhall (1980)
Arrests, Use of Force, and Responses to
Terrorism
 Arrest Defined
– The taking of a person into custody against
his or her will for the purpose of criminal
prosecution or interrogation
• Dunaway v. New York (1979)
Arrests, Use of Force, and Responses to
Terrorism
 Arrest Defined
– Forced Detention and Arrest
– The Length of Detention and Arrest
• United States v. Sharpe (1985)
Arrests, Use of Force, and Responses to
Terrorism
 The Elements of an Arrest
– Seizure and Detention
• Actual Seizure
• Constructive Seizure
• California v. Hodari (1991)
– The Intention to Arrest
• Berkemer v. McCarty (1984)
– Arrest Authority
– Understanding by the Arrestee
Arrests, Use of Force, and Responses to
Terrorism
 Arrests with a Warrant
– When a Warrant is Needed
• If the crime is not committed in the officers
presence.
• If the crime is committed in a private
residence.
• In home entries for minor offenses.
Arrests, Use of Force, and Responses to
Terrorism
 The Issuance of a Warrant
– Complaint
– Neutral and Detached Magistrate
• Connally v. Georgia (1977)
• Lo-Ji Sales, Inc., v. New York (1979)
• Coolidge v. New Hampshire (1971)
Arrests, Use of Force, and Responses to
Terrorism
 The Contents of a Warrant
– “John Doe” Warrant
Arrests, Use of Force, and Responses to
Terrorism
 The Service of a Warrant
– Service within a state
– Service outside a state
• Hot pursuit exception
 The Time of the Arrest
 The Possession and Expiration of a
Warrant
Arrests, Use of Force, and Responses to
Terrorism
 Legal Authorization Other Than an
Arrest Warrant
– Citation
– Bench Warrant
– Capias
Arrests, Use of Force, and Responses to
Terrorism
 Arrests without a Warrant
– Felonies Committed in the Presence of
Officers
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Sight
Hearing
Smell
Touch
Taste
Arrests, Use of Force, and Responses to
Terrorism
 Arrests without a Warrant
– Misdemeanors Committed in the Presence
of Officers
– Crimes Committed in Public Places
Arrests, Use of Force, and Responses to
Terrorism
 When Exigent (Emergency)
Circumstances are Present
– Possibility of Disappearance
– Hot Pursuit
 When There is Danger to the Arresting
Officer
Arrests, Use of Force, and Responses to
Terrorism
 What the Police May Do After an
Arrest
– Search the Arrestee
• United States v. Robinson (1973)
– Search the Area of Immediate Control
• Chimel v. California (1969)
Arrests, Use of Force, and Responses to
Terrorism
 What the Police May Do After an Arrest
– Search the Motor Vehicle Even If the Initial
Contact and Arrest of the Driver Took Place
Outside the Vehicle
• Search the Passenger Compartment of a Motor
Vehicle
– New York v. Belton (1981)
• Use Handcuffs Subject to Department Policy
• Monitor the Movement of the Arrestee
• Search the Arrestee at the Place of Detention
– Washington v. Chrisman (1982)
Arrests, Use of Force, and Responses to
Terrorism
 What the Police May Do After an
Arrest
– When Exigent (Emergency) Circumstances
are Present
• Possibility of Disappearance
• Hot Pursuit
Arrests, Use of Force, and Responses to
Terrorism
 What the Police Cannot Do During an
Arrest
– Enter Third Party Residences, Except in
Exigent Circumstances
• Steagald v. United States (1981)
• Minnesota v. Olson (1990)
– Strip or Cavity Search an Arrestee Unless
Justified by Reasonable Suspicion
• Kennedy v. Los Angeles Police Department
(9th Cir. 1989)
Arrests, Use of Force, and Responses to
Terrorism
 What the Police Cannot Do During an
Arrest
– Conduct a Warrantless Protective Sweep
Unless Justified
• Maryland v. Buie (1990)
– Invite the Media to “Ride Along”
• Wilson v. Layne (1999)
Arrests, Use of Force, and Responses to
Terrorism
 The Announcement Requirement
– The General Rule: Knock and Announce
Required
• Wilson v. Arkansas (1995)
– The Exceptions and Other Rules
– Blanket Exceptions Unconstitutional
– The Knock and Announce Requirement
and Property Damage by the Police
Arrests, Use of Force, and Responses to
Terrorism
 Other Arrest Issues
– Detaining a Suspect While Obtaining a Warrant
• Illinois v. McArthur (2001)
– Arrests for Traffic Violations or Petty Offenses
• Atwater v. City of Lago Vista (2000)
– Arrests for Offenses Not Punishable by Prison
or Jail Time
– The Validity of a Citizen’s Arrest
Arrests, Use of Force, and Responses to
Terrorism
 The Disposition of Prisoners After
Arrest
– Booking
– The First Appearance before a Magistrate
• County of Riverside v. McLaughlin (1991)
• Powell v. Nevada (1992)
– Bail
Arrests, Use of Force, and Responses to
Terrorism
 The Use of Force During Arrest
– The Factors Governing Police Use of
Force
– Nondeadly and Deadly force Distinguished
– The Rule on the Use of Nondeadly Force
– The Rule on the Use of Deadly Force
• Felony Cases
• Misdemeanor
Arrests, Use of Force, and Responses to
Terrorism
 Responses to Terrorism
– The USA Patriot Act of 2001
– The USA Patriot Act of 2006
– The Law Creating the Department of Homeland
Security
– The INS Registration Program for Foreigners
– Legal Issues Arising from Responses to
Terrorism
• Hamdi v. Rumsfeld (2004)
• Rasul v. Bush (2004)