I. Procedures and Context: Daily Interactions Between Police and Citizens

Class: Criminal Procedure I Professor: Meares Book: Marc L. Miller and Ronald F. Wright, Criminal Procedures – The Police (Aspen 1999). Term: Fall 2001

Table of Contents

Class: Criminal Procedure I Professor: Meares Book: Marc L. Miller and Ronald F. Wright, Criminal Procedures – The Police (Aspen 1999). Term: Fall 2001

I. Procedures and Context: Daily Interactions between Police and Citizens

A. Community Caretaking

1. A large part of police action takes place OUTSIDE rules of CrimPro because it is not investigatory. Instead, it deals with police discretionary conduct like rousting drunks, breaking up fights, responding to citizen requests for help. Police may or may not file any charges – Gatekeeper function. Do a substantial amount of work without intake into system.

2. Oregon only(?) state to codify this function; otherwise in police manuals, informal practices & norms.

3. Court will sanction acts unlawful if in investigatory function (entries, stops, "force," searches) if a reasonable part of CC function.

a) No individual rights at stake, less intrusive generally – b/c no targeting

b) Officers can do job better this way

c) lower consequences in long run – prevention versus reaction

d) Citizens want cop help

e) CC so diverse in circumstances, hard to cabin with procedures like invest.

4. BUT Court wants to keep such functions narrow, thus the Dube line drawing, which seems forced. Danger is easy to blur line tween CC and Invest.

5. Question of who should regulate PO helps us answer how we feel about CC functions. See below.

6. Cases

a) Dube – PO can enter apt with Super. at his request (community caretaking) so long as Super. had right to enter, but once Super. done with repairs, presence of PO crosses line to investigatory, no longer permissible.

b) Stowe – Drunken dude in road sufficient for PO in CC function to intervene, touch, divert. Moral – can use reasonable force even if no "crime" to fulfill CC.

B. Police Enforcement of Civility

1. Should PO be allowed to police civil conduct? People's incivility to/around PO usually controlled by non-system functions, like respect or fear of PO. But some courts allow Disorderly Conduct for incivility – Morris.

2. Incivility towards PO rarely a crime, but likely invokes lots of external acts by PO to curb.

3. Cases

a) St. Paul v. Morris (12) – "White motherf---kers." Epithets at PO not necessarily Disorderly Conduct, but no higher standard for PO tolerance than ordinary citizen. So conduct, like this, that is beyond what normal citizen should endure is D.C.

b) Janisczak (15) – Higher PO Standard of restraint than normal citizen. Epithets at PO don't invoke compelling interest to prohibit, no D.C.

C. Community Policing v Traditional Policing

1. Nature of CC, whether PO should be involved in civility stuff all goes to how we structure our PO, and how we control that structure.

a) < 1940: PO part of political system of patronage.

b) 1940-1980's: Reform Era – PO function is crime control, apprehension. An impersonal, reactive organization with central 911 center to dispatch cops in rapid response to crime calls. No neighborhood connections. Effeciency model.

c) Last 20 years'ish: Community Policing. Diffusing of control & resources to communities, broadening police functions beyond crime control. Interactive with community, more autonomy to beat officers, QOL of community concerns

2. Contrasting model: Packer's Crime Control v. Due Process Model

a) Crime Control = Apprehension, efficiency, and speed of crime intervention paramount. Highly administrative; crime is a battle. Presumes highly accurate model so innocents are not swept up. Little need for controls cause only catches the guilty. No need for adjudication therefore.

1) Battle, Assembly Line

2) Holmesian Bad Man law model.

b) Due Process = Presumes inaccurate, inefficient PO, highly suspicious of fact findings at every stage, and requires high scrutiny to pass to next level

1) Obstacle Course

c) Packer likes Crime Control. Has little applicability to CC work.

3. Griffith's Family Model.

a) We are family. . . cops, criminals, and communities. Parallel interest of police and community.

b) Family exercises a lot of control, "paternalistic" to members. But not antagonistic.

c) Looks at actors differently; requires trust among members.

d) The police are your friend, they want the truth so they can help, and they would never do bad or hurt anyone. They just want to straighten things out.

4. So Who Should Regulate? Courts v Leg v Exec (PO)

a) Because if you distrust police, and have a more antagonistic model (which we do), then you want more explicit rules and oversight. But who should do it?

b) Legislature

1) Not many in reality, except for substantive definitions of offenses. This can back certain CC functions at low end by giving teeth, e.g., loitering ordinance gives backing to use of power to disperse, control gatherings outside system by threat of intake.

2) If done, would need bright line rules, curb discretion of PO and courts.

3) Otherwise, Morales problems of vagueness, might just delegate responsibility.

4) Don't we trust legislatures to look after minority interests? Like AA's – well represented in communities.

c) Courts

1) Sees specific cases, particularized facts.

2) Protects minorities, more "trust"

3) But sees few cases

d) Executive

1) Self-regulation through IA, Review Boards

2) Can incorporate citizens, citizen review boards.

3) Lots of expertise here.

4) Alignment of interests of Exec and PO might distort incentives to really oversee. Blue Code shit.

D. Gang Loitering

1. Ordinance

a) PO can make people disperse.

b) Its effectiveness depends on three levels

1) Community Support

(A) Crime control's formal mechanisms must align with informal community norms in order to be effective. Then community support of the formal mechanism can help reform any out of kilter norms.

(B) So community support of loitering ordinance will work with police to align "gang" norm back to a good community norm.

2) Vagueness

(A) Not a problem if there is alignment of form/inform. When misaligned, then problem

(B) Court has a problem with this. Too much discretion given to police.

(1) Ordinance leaves details to General Order, which is highly detailed on criteria for certain areas and certain people who can be targeted, and on which PO's can enforce.

(2) But this GO is executive, not legislative. So problems with "self regulation."

(3) Not clear this would be fixed if GO were part of legislative ordinance because the high level of departmental control (area, targets, enforcers) is contrasted with total substantive discretion as to how to apply statute to those targets, in that area, by those enforcers.

(a) Breyer seems to have lots of difficulty with the high level of individual officer discretion.

3) Effective Crime Control.

(A) Legitimacy

(1) Asking gang members to move on

(2) Asking hangers on to disperse

(B) Does it Work?

(1) No data to support, really. But can't wait for data, yet no data gives weird fascist tint.

(2) Need causal connection of each action to some result of loitering. . . . ?

2. Morales:

a) Stevens says infringes on right to loiter. Not much there

b) Breyer's concern on vagueness and discretion more interesting. See above.

E. Moral – all about discretion of police. How much should they have, and who should watch it. This influences how you structure your PO responsibilities, what functions they perform, how you regulate abuses, and who regulates abuses.

II. Brief Stops

A. Introduction to the 4th Amendment

1. Right to be free from unreasonable searches and seizures, and no warrants except on probable cause.

a) Traditionally, required a warrant for all searches, and had to be based on probable cause.

b) In 60's, saw exceptions erode this presumption.

c) Now a total cluster fuck of exceptions.

d) Push for exceptions read from "reasonable" languageà proponents (Akhil Amar) say 4th is all about reasonableness.

2. 3 Key Cases

a) Katz:

1) wiretapping case, tap on outside of phone booth didn't violate a private space, but court found it illegal because the 4th protects "people not places"

2) Moved 4th from a property control based protection to an individual autonomy based privacy expectation ("reasonable expectation of privacy") framework.

b) Terry:

1) Created intermediate level of suspicion ("reasonable suspicion") below probable cause that justified an intermediate level of search and seizure ("stop and frisk:")

c) Camara:

1) Created new methods of justification for a search other than some level of individualized suspicion – did so with balancing test of government interest versus intrusion of search. In this case, administrative searches justified by non-law enforcement needs. Finds its extension to discretionless administrative checkpoint searches – Prouse, Edmonds (limits it), etc.

3. Two levels of analysis for a Stop.

a) Is it a Stop?

1) Can it be called a consensual encounter?

2) Mendenhall std: Would a reasonable person believe he was not free to leave?

3) If not a stop, no 4th Am. rights implicated

b) If it is a stop, what level of justification is needed and do we have it?

1) Stop versus Arrest

2) Reasonable Suspicion, Probable Cause, need for warrant?

B. Consensual Encounters and Stops

1. First level – was there a stop.

a) Difficult question, because lots of encounters with police are friendly, or at least consensual. Shouldn't restrict them. Plus, police should be able to speak with citizens in investigatory manner so long as citizens are not "restrained" or compelled/coerced to speak with PO.

b) Mendenhall – In view of all circumstances surrounding the incident, would a reasonable person believe he is not free to leave/break off encounter?

c) Cases Modifying Standard:

1) FL v Bostick: PO stood in aisle of stopped bus and questioned man in seat. Requested Doc's, returned them, asked consent to search bag, granted.

(A) Not a stop, even though passenger's physical path of exit was blocked.

(B) Because RP would have felt free to break of encounter.

2) CA v Hodari: Suspect fled at sight of police, who gave chase. During chase, suspect ditched Crack. Was suspect "stopped" during flight such that need for individualized suspicion?

(A) No. Technical interp.à can't be stopped if you are leaving, either by walking or running. Even if being chased.

(B) Stop requires physical restraint or submission to authority.

2. Things not a stop

a) Requesting ID, travel doc's like tickets

b) Warrant check? Unclear – in Wilson not when initiated check, but stop to complete check taking time. Many states allow ID and warrant checks without implicating 4th.

c) Initial Community Caretaking concerns – Wilson – stopping to check on someone's health or safety. But can quickly turn to "stop."

3. Wilson (43)

a) PO sees limping man, stops for safety check, asks for ID.

b) Stopping someone to check his safety not a stop. Checking his ID not a stop, and making warrant check after consensual encounter not a stop.

c) When Wilson left scene, even after being told to wait, no stop (Hodari).

d) BUT, when Wilson stayed on command, stop occurred. Required R.S.

e) The line at ID and warrant check is fuzzy à really moved from Comm. Caretaking to Investigation. Prompted by administrative concerns – don't hamstring PO.

C. Reasonable Suspicion as justification for Stop.

1. Terry:

a) A brief stop, not rising to level of an arrest, can be justified by level of suspicion less than probable cause.

b) Officer must be able to point to specific and articulable facts, which, when taken together with rational inferences from those facts, give rise to the reasonable suspicion that the person has commited or will commit a crime.

c) Evaluated under totality of circumstances.

d) Facts pointed to are almost never, themselves, illegal conduct.

2. Cases modifying

a) Cortez: Facts evaluated from perspective of a trained Police Officer, not a Biedermann.

b) Sibran: Hunches of PO not sufficient to create RS

c) Sokolow:

1) Reasonable Suspicion much less than preponderance of evidence

2) Use of profiles doesn't detract from evidentiary significance of other facts used to reach RS standards. (Profiling okay if not only factor).

3. Nelson: No RS

a) Area of recent crime, seen drinking beer in truck, 1:30 am on morning of Christmas eve day, see him then drive away. No R.S.

4. Dean: Yes RS

a) Presence on dead-end uninhabited street, in area of recent crimes, at night are sufficient facts in combination to give RS

b) Simply being in High Crime area is NOT sufficient to create RS

c) Shows weirdness of finding RS.

5. Wardlow:

a) High crime, drug bazaar area. Middle of day, holding opaque bag, sees police, flees.

b) Presence in high crime area relevant, but not sufficient.

c) Leaving scene alone insufficient. But unprovoked flight (especially in high crime area) = RS

d) Whole discussion of whether there are sufficient reasons for flight from PO totally unrelated to criminality so as to make flight neither sufficient nor even relevant.

1) SDNY case said reasonable for black male to flee police.

2) Leads to profiling issue . . . .

D. Profiling

1. Quarles: profile cannot be only factor, but is relevant to RS.

a) Sokolow: Fed's agnostic on profiles. Just a component, doesn't help or hurt other evidence.

b) Cortez: Police experience can give life to facts/observations that ordinary man wouldn't find suspicious.

2. Majority of states allow profiles as component of RS, but cannot be only factor.

3. Criticisms:

a) Equal protection problems

b) Papchristou problems – discretion, no Homesian notice.

c) Overinclusive – sweeps in lots of innocents.

4. MEARES – likes Ochoa-esque empirical profiles that have a tighter fit to criminality and fit a very small number of total people/cars, thereby limiting overinclusiveness/EP. Discretion is cabinable. Better than "police experience" profiles, which can't get this.