Criminal Procedure 1 Class Notes

Criminal Procedure 1 Outline - Cody Bailey - Prof. Hall - Spring 2009:

LIBERTY

Detention as a Threshold & Levels of Suspicion, Part I
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 . . .
Where does the issue lie?
Limit on Unreasonable Seizures
Reasonableness =
Amount of suspicion
The police need a certain amount of suspicion to be able to reasonably seize you
Reasonableness Inquiry Triggered Only if
Seizure occurs
Stop
Detention
Deprivation of/Restraint on Physical Liberty
If No Seizure then = No Reasonableness Requirement
Definition of Seizure
Its NOT a seizure unless the person is stopped, detained, or his physical liberty is restrained or deprived
Seizure Occurs If
there is use of physical force to restrain movement, or
submission to assertion of authority
Amount of Suspicion
To Stop (“Seize”) an Individual the police must have
Reasonable Suspicion
Based on Objective Facts (observed or known evidence)
That links Individual to involvement in Criminal Activity
Logic
Pragmatic
Encourage Compliance / Discourage Flight
The Reasonable Suspicion Standard is not applied until a full seizure is applied – capture or acquiescence
Issues with Seizure
Time Lag Problem
Between Assertion of Authority and Submission
Moment of Submission = Moment of the Seizure
If the evidence is discarded b/t the assertion of authority and the submission or seizure then the police win
Fortuitousness
No Difference in Law Enforcement Conduct
How Much Force?
How much force activates the rule?
Perhaps Just a Touching
Definitely brandishing a weapon is enough
Warning Shot in Air?
Criminal Defense Lawyer will say this is a use of physical force
Police will say this is just like saying “stop, it’s the police”
Hall says it is a use of physical force
Warning Shot That Accidentally Hits Suspect in Leg?
definitely a restraining of physical liberty
“Hey, you!” and suspect immediately stops
Police will say this was not “stop in the name of the law” – not an assertion of authority
Defense lawyer will say that the police officer in uniform demands the respect such that “hey you” means stop
Police Pull Up to Curb,
Timid citizen Immediately Raises Arms
Police say no show of authority or force
Defense says approaching the person is the assertion of authority - they approached the subject in their cruiser
General Rule
Seizure occurs only if reasonable person acts in a predictably reasonable way and does not feel free to
terminate the encounter
leave
decline the request
Depends on whether the person feels that his/her physical liberty has been restrained - reasonable person must feel free to leave
Objective Test
Little Attention to Particular Characteristics of the Person
Detail
Seizure occurs if Law Enforcement retains your ID or tickets you because you can’t walk off and leave either
Reasonableness
Seizure Occurs
Does it comport with the 4th Amendment?
Did law enforcement act reasonably?
Requisite Level of Suspicion
Depends Upon
Intrusiveness, Time, Nature of Stop
Interest of Law Enforcement
Isolated Random Stops – Not reasonable and Not Allowed!!
Isolated Random Stops are Unconstitutional
Because there is No Suspicion
Law Enforcement’s Interest is Minimal – says SC
But, Roadblock Possibly Allowed
Irony
Swallow the Camel, Strain at the Gnat
court allows the big thing – the road block that is more invasive, public, and time consuming - and not the isolated random stop that is less invasive, not public, and quicker
the Court’s real concern is that the isolated, random stop might be arbitrary or discriminatory
Real Reason
Dangers of Unconstitutional Discretion
Arbitrariness / Capriciousness
Discriminatory Enforcement
Delegation of Policy-Making Authority
Permissible Suspicionless Seizures
International Border
Security Checks (Airport, Courthouse)
Exigent Circumstances
Fleeing suspect – police can throw up a roadblock around the city
Profiling (Not Based on Race, Religion)
Based on traveling habits
Some Roadblocks
Special Needs Cases
this is because reasonable suspicion has to be individualized and stopping a bunch of people is not
Road Blocks
There must be a connection between the narrow search and roadway safety for the road block to be permissible
Permitted if:
the road block has a specific, primary purpose, and
is related to Use of Roadway
Also Permitted If:
Imminent, Terrorist Attack
Fleeing, Dangerous Criminal
i.e. Exigent Circumstances
But
Not Permitted If
Primary Purpose Is“General Crime Control”
Why
Fear that special exception will swallow general rule that seizure requires individualized suspicion
Critique
Subjective intent of law enforcement does not invalidate an otherwise justifiable stop
What if law enforcement sets up a sobriety checkpoint as pretext for general crime control?
Ask what is the primary purpose of the stop
must be for sobriety!
The Road Blocks cases are called Special Needs Cases
the rate of effectiveness of the road block seems to be important but not dispositive; it is evidence of the extent of the government’s interest
Identification Statute Cases
Identification statutes don’t constitute seizures - person has an opportunity to refuse or terminate the encounter; no suspicion needed
If the officer says “show me your ID”, and you don’t comply you have violated the law and now the officer has probable cause
reasonable suspicion is enough to detain; need PC to arrest
The Problem With Identification Statutes is they bootstrap less than reasonable suspicion into more than reasonable suspicion
start with no reasonable suspicion to detain, then refusal to show ID is made and statute is violated and now officer has PC to arrest - ID statute elevates low level suspicion to PC
Thus, a blanket ID statute allowing the officer to ask anyone for ID out of the blue, the SCOTUS has said is illegitimate
cannot be used to bootstrap and arrest cannot be automatic
However, when the circumstances of the encounter are linked to the request for ID, the ID statute will be upheld
as long as the officer doesn’t have unconstrained discretion, they will likely be legitimate - no discrimination
Suspicion, Part II - Terry Stop and Frisk
The Terry Stop
Officers can use their experiences to draw some inferences to determine if there is reasonable suspicion or not
officer doesn’t really know if there is foul play, but he suspects there is
it is not a hunch b/c it is based on factual observations coupled with experience and knowledge
when the officer says “show me some ID” that is not a simple assertion of authority like “stop in the name of the law” but it is a command and a reasonable person would not feel free to terminate the encounter
there is a seizure for sure when the officer grabs Terry
In order to seize a suspect, the officer needs to have reasonable suspicion of criminal activity
Terry Stop
Stop = Detain Briefly for Questioning or Investigation
Level of Suspicion necessary
Reasonable suspicion that suspect involved in criminal activity based on specific, objective, and articulable facts along with reasonable inferences drawn from law enforcement experience
when the person is lawfully seized, the officer can ask questions of the persons but cannot search him
If the level of suspicion goes up after the initial stop, the officer could arrest the person, detain them longer, etc
Always analyze the stop and the frisk as separate items in real life and on the exam!!!
Terry Frisk
The level of suspicion must meet the level of intrusion upon the person
Mere suspicion of criminal activity does not justify a frisk, but the officer must fear for his safety
Intrusion into your personal space requires a significant amount of suspicion; can search for fear of a gun but not for a pick pocket
We are worried about officer safety
The Terry Frisk is based entirely on officer safety! Officers cannot touch you or search you based on reasonable suspicion but only for protection
test: Terry Frisk is permissible if the officer has reasonable suspicion that the suspect is “armed” and “dangerous”
Frisk =
Limited, Protective search of outer clothing (pat down)
To dispel or confirm suspicion
Suspicion
Reasonable suspicion that suspect armed and dangerous (know this exact language)
Understand that the Terry Stop and the Terry Frisk are two separate doctrines and there are separate tests for each; treat them separately on the exam and in real life
Terry is incredibly friendly to law enforcement
Frisk Issues
The logic of the terry frisk is officer safety, so when should the terry frisk happen?
immediately (at the beginning or early in the encounter)
Use it or Lose it
Immediate/Prompt search allowed
If requisite suspicion
If officer doesn’t frisk early in the encounter it is logical to believe that he did not fear for his safety
The grounds for the frisk could develop during the stop, or the officer could say that he was worried about a quick draw of the weapon;
so not an absolute rule but if he doesn’t do an immediate search he will have some explaining to do
Logic
Frisk to dispel / confirm fear for safety
If Officer chooses not to frisk, that confirms that he did not fear for his safety
Expansion of Search: More than a Frisk
Permissibility of More Invasive/Intrusive Search
Dangerousness of Pat Down / Frisk
Limited Nature of Additional Intrusion
Conduct of Suspect
The heightened level of suspicion due to the factors above will allow the officer to reach inside the clothing of a suspect to retrieve a weapon
The officer will be able to expand the frisk based on the facts and the escalation of the suspicion or the situation
Standards for Officer Suspicion
Suspicion Must be Based on
Objective, Specific, and Articulable Facts
Not a hunch or some sort of inchoate thought or intuition or inchoate suspicion
And Reasonable Inferences Based on Law Enforcement Experience
When
Before the Law Enforcement Conduct
Officer needs to describe the facts that led to his conduct of searching or seizing
No After-the-fact Rationalizations allowed
Like finding gun in waistband – not allowed
Evaluated from Point-of-View of Officer in the Field
We want to judge the officers behavior in the view from the tense situation in the field rather from the ivory tower
Issues
Information (Not Observed by the Officer) is Allowed
Officer receives his info by
“Hearsay”
Information from fellow officers, dispatcher, etc.
Informant / Anonymous Tips Allowed
Informant is known to the police in some familiar way; an anonymous tipster is unknown
They can put this info together with reasonable inferences
Pieces of Information an Officer will use to make reasonable suspicion
Suspect Present in High-Crime Area (location)
Alone = Insufficient
But is a permissible consideration
Has to be some link between the officers suspicion and the type of crime that takes place in that area
Not enough by itself but is a fact
There is a higher statistical chance that a person found in a high crime area is involved in crime
If the police see someone in a high crime area, that is some kind of suspicion, but not enough to stop him; not reasonable, but relevant
couple this with evasiveness and eye contact and you may well have reasonable suspicion
every little fact matters because the doctrine is objective, articulable, and specific facts and the officers can use every little fact
Suspect Flight from Law Enforcement
Suggestive of Wrongdoing
Not perfect but logical
Could possibly be innocent but not likely
Insufficient to provide reasonable suspicion
Unprovoked, HeadlongFlight from Law Enforcement Coupled w/Other Factors is Sufficient
The panic and fear suggests guilt
Argue that mere flight is not enough; it must be “headlong” flight
Abruptly halts and changes direction
Anonymous / Informant Tips
anonymous tips are generally less reliable than informants
Standard
Officers need Indicia of Reliability
Details to establish knowledge or credibility
Corroboration of Details by Law Enforcement
Prediction of a future event is crucial
As opposed to a descriptive tip by a tipster
Thought is that if the tipster seems to give greater indicia of reliability they are more reliable; it is a fact balancing test
Details in a tip that can be verified and details that suggest the tipster is an insider are more reliable
If a person as an informant puts their name and reputation on the line then that is stronger than an anonymous
a tip does not justify immediate reasonable suspicion, but it is a factual ad hoc analysis
the nature of the crime is a factor
Magnitude of the Crime/Danger Affects Analysis
Description of uni-bomber gives more search leeway
What is the Concern?
Potential for Harassment - officers using bad tips and made up corroboration to justify a search
Pretext (Traffic Violations) - Whren v. U.S.
If the officer observes a traffic violation (an illegal lane change or turning without signaling) then they automatically have probable cause to stop the vehicle and we are above reasonable suspicion
if the officer has a hunch or an inchoate suspicion and does not have a reasonable suspicion it doesn’t matter if they have a completely independent objective basis for the stop (i.e. traffic violation)
Police win even though the traffic violation is not the real reason for the stop. This is called Pretext.
Traffic violation = probable cause = justifiable seizure but maybe not search unless some heightened suspicion or the person agrees to search
We don’t care about subjective intent (pretext) even if the officers are doing this for bad reasons so long as there are objective facts, known to the officers that support the stop
Subjective Intent of Law Enforcement Not Relevant
Even if Law Enforcement Acts in Bad Faith
So Long as Objective Facts, Known to Officer, Support Detention/Search
This is good b/c it is a bright lined rule
This can be bad if it is selective enforcement
Bias, discrimination, prejudice based on race or religion; or
Bias based on personal vendettas or based on knowledge of particular suspects that are generally criminals but just haven’t been caught yet
The Whren Rule is that you can’t make a pretext claim
We are not going to look at underlying motives - pretext arguments fail under the 4th Amendment
Concern
Reasonable Suspicion Standard (low)
And limits on pretext claims
Give License to Action Based on
Race
Other Improper Considerations
Impermissible Profiling
Scope and Expansion of Terry Stop/Frisk AND Introduction to Arrest
Officers don’t need any further suspicion to question suspect once they have him properly stopped unless they detain him for longer
The officer can stop and investigate, stop and cite, or stop and arrest (if allowed by local/state law). No search unless additional suspicion or arrest.
If officers see a weapon, they immediately have fear for their safety and they think the suspect is armed and dangerous, then they can search
When officers have probable cause or heightened reasonable suspicion they may search the passenger compartment of the car in areas where the suspect could reach weapons if they got back in the car
This is like a Terry Frisk of the car
Scope of Terry Search:
Law Enforcement May search those areas in the passenger compartment of Vehicle where a suspect might have a weapon
Suspicion Required
Reasonable suspicion that suspect dangerous and could gain immediate control of weapon
this is the same as reasonable suspicion that the suspect is “armed and dangerous” - std for Terry Frisk
assumption that even if weapons are not on person they are close by and within reach
Expansion of the Search
If Officer feels no object or object not reasonably a weapon, then the search is over (the Terry frisk has to end)
b/c the officer has run out of suspicion
If Officer Reasonably Suspects Object Is a Weapon, Then Officer May Expand the Search - based on reasonable suspicion
If the Officer feels an Object with Immediately Apparent Incriminating Character, Then Officer May Expand the Search
No longer reasonable suspicion, now probable cause
(e.g. a crack pipe through a silk shirt)
a small lump is not enough, but a small cellophane packet might well be immediately apparent incriminating
if it turns out to be a pen, the search should stop b/c the apparent probable cause has been disproven
More Expansion
Immediately Apparently Incriminating (how it comes about) - does not need independent justification under the Terry-Stop doctrine
plain Sight (knife on the seat, gun, etc.)
plain Feel (if it feels a certain way, it might be enough)
plain Smell (marijuana, alcohol, gun powder, blood, etc)
Including drug dogs
These are all specific, objective, and articulable senses
Not Violations of the Principle that the stop must be justified at inception and reasonably related in scope to circumstances that justified it
if the officers learn nothing new in the encounter everything they do has to be justified by what they knew in the beginning; if the learn something more in the encounter they may have a heightened suspicion to justify their actions after the stop
Length of Detention
More than Just a Terry Stop
More than just a citation stop
Because the dog is investigating based on something that is unrelated to the stop for speeding
Seems like an unrelated investigation but since not an additional detention and not a search the officers get away with it
Investigative Detention for Reasonable Time
Same for Citation Detention
Court Endorses Reasonably Brief Detention even if shorter detention is possible
Argue that the stopping officer detained suspect longer than usual or necessary so that the dog had time to get there and properly engage in sniffing the car
court looks at whether the total length of the detention was reasonable
De Facto Arrest
Detention May Require same suspicion as Arrest
If Detention Constitutes a De Facto Arrest
Suspect is told he can’t leave - a higher threshold than merely feeling like he can’t leave
Factors
Location (take him to headquarters)
Movement of Suspect
Intrusiveness / Force of Restraint (handcuffs)
Duration of the Restraint
Detention Incidental to Search Warrant Execution
Detention of the house occupant during execution of premises search warrant allowed - court holds this is reasonable
This rule is a per se rule.