§ 1. Procedures and Context
I.Daily Interactions Between Police and Citizens [pp. 3–20]
A.Community Caretaking
(1)Codification: Oregon stands alone in codifying community caretaking function.
(2)State v. Dube – The police officers’ initial entry into an apartment due to an emergency was legitmate under their community caretaking function (statutorily authorized), but their continued stay was improper.
a.Impact – Ct. sanctions the presence of police in apt (if landlord can enter, so can cops) we can expect an increase in that activity.
(3)State v. Stowe – Officer was justified in believing that who was in a drunken state in the street was acting in a manner which would foreseeably disturb or alarm the public officer had probable cause for arrest; since engaged in making lawful arrest, no consent to battery that D inflicted
(4)Comm. caretaking v. criminal enforcement: Comm. caretaking can change into criminal enforcement (most police work falls into former and thus not regulated by courts).
a.Crime v. civil violation – Legislative choice between making an act a crime or civil violation may affect caretaking or crim. enforcement
(5)Resisting unlawful arrest – Some states recognize that a citizen can resist an unlawful arrest, while others require submission.
B.Police Enforcment of Civility – Protection of the police’s idea of their own authority.
(1)St. Paul v. Morris (MN) – Calling the cops “white mother f—kers” constituted disorderly conduct because legislation relating to disorderly conduct also embraces acts corrupting the public morals or outrage the sense of public decency; cops should not be subjected to vulgarity that ordinary citizens are not
(2)State v. Janisczak (ME) – screamed and yelled “f—k you” to cops while protesting arrest of a motorist on the highway; state may only prohibit fighting words or speech that produces or is likely to produce clear and present danger of substantive evils; words here did not meet this threshold; cops are better trained to deal with vulgarity
(3)Majority view: Morris may appear to be a product of its time, but some courts still uphold disorderly conduct convictions for what is little more than profanity.
C.Policy Questions – What are the goals of policing?
(1)How much regulation do we want over police? How much discretion should we give police?
(2)What kinds of regulations are the best?
a.Constitutional control – Takes community caretaking from the hands of the political process.
b.Other possibillities: Statutes, admin. reg. (executive controls), elections, etc. – Brings the control closer to the process.
(i)Living in the community? Cops living in the communities they police.
(3)How best to bring accountability?
II.Traditional Policing v. Community Policing [pp. 20–36 & Supp.]
A.Historical Transformation of the Basis of Legitimacy
(1)Until 1940s – Police depts directly controlled by local political leaders and responded to a variety of local needs.
(2)1940s-1980s – “Reform Era” – Police moved to narrow their functioning to crime control and criminal apprehension; police agencies became law enforcement agencies.
(3)Past 20 yrs – “Community policing” – Shift in control over police resources from central mgmt into each community, a broadening of the goals beyond crime control. Philosophy differs from traditional policing because it is an interactive process between the police and the community to mutually identify and resolve community problems:
a.Results v. Process – Orientation toward problem solving
b.Values – Policing values incorporate citizen involvement
c.Accountability – Understanding what’s important to particular neighborhoods
d.Decentralization of both authority and structure.
e.Empowerment of beat officers – Encourage cops to initiate creative responses to neighborhood problems.
f.Supervision and management – Patrol cop becomes the manager of his beat, first-line supervisor is the trainer, coacher, and coordinator; management provides resources.
g.Training – Reflects new philosophy & illuminates police-community relationship to recruits and cadets.
h.Performance evaluation – Criterion becomes the absence of incidents.
i.Managing calls-for-service – Manage time of cops so that they are available to engage in problem-solving and community-organizing activites leading to improvements in the quality of neighborhood life.
B.Curfew Laws – Juvenile curfews grant powerful discretion to police officers.
(1)3 Possibilities
a.Mandatory enforcement
b.Less but targeted enforcement
c.No enforcement
(2)Role of the statute
a.Does the existence of a “gang loitering statute” really grant more power to the police?
(i)Such a role may already be part of their community caretaking function.
Depends on the history and context of policing.
III.Borders of Criminal Procedure [HO #1 re: Morales] (From M. Adiga)
I.Definition of Border
A.View about the ordinary behavior of the police shapes the processes that govern the less ordinary confrontations between citizens and officers
II.Amicus brief against the anti-loitering statute
A.Tensions have always existed between police and minorities and it continues into today.
B.The ordinance is unconstitutionally vague as it fails to define in any meaningful way the conduct that is prohibited.
(1)Desire to combat crime cannot suspend Constitutional protections against vague laws.
C.The ord directs the police to arrest and prosecute thousands; not to be innovative with community’s problems. There were more than 41,000 arrests.
D.No evid that the ord reduced crime.
E.Ord impermissibly leaves enforcement to the unconstrained predilections of the police
(1)Ord gives PO an unfettered discretion to decide that person doesn’t have an apparent purpose and is therefore loitering.
a.The discretion is subjective and standardless
F.Ord applies not only to gang members but to people who are deemed to be loitering with gang members.
G.Ord gives PO discretion to decide that person failed to “move on”
(1)How far is one to move?
(2)For how long?
H.Ord does not explicitly say what exactly is prohibited.
I.Argument that minority community wants this law is wrong
(1)Minority community does not speak with one voice. There is substantial opposition to this law within minority community
(2)Once members of minority group attain a degree of political power, it does not mean that they can’t discriminate against their own community.
J.This is contrary to community policing – which is to strengthen relationships between police and community residents and to use innovative, flexible solutions to community problems
K.The sheer numbers of arrest show that there is contempt for police and not a partnership between police and community.
III.Chicago v Morales, 527 US 41 (1999) - Chicago enacted an ordinance, which prohibited criminal street gang members from loitering in any public place. Supreme Ct struck down the ord because it violated the due process clause of 14th Amendment. If PO observes a person who he reasonably believes to be a gang member loitering in a public place with one or more people, PO can order them to disperse. The ord tries to limit officer’s discretion by confining arrest authority to designated officers, estab detailed criteria for defining street gangs and providing for designated but publicly undisclosed enforcement areas. Ord requires 4 predicates: (1) PO must reasonably believe that at least 1 person is a gang member, (2) person must be loitering with no apparent purpose, (3) Po must order them to leave the area, (4) person must disobey the order. Dt commanders designated areas in which this would take place,
A.Old Ordinance
(1)Balance between crime control and due process values
(2)Lots of ordinances give PO discretion
a.PO may want guidance of how far def can go before PO need to arrest them.
(3)Had vague ordinance with detailed general order (p4-7- HO)
a.The GO will help from the PO’s standpoint but not from the public’s standpoint.
b.However, the general order has to be passed by Police Board, which is made up by civilians
(4)Problems on ways to enforce ordinance are problems of discretion
(5)Original Ordinance
a.NO apparent purpose
b.Designation of areas
(6)General Order
a.Identification of gang members
b.Pick areas
c.Limits PO who can arrest
d.Aggregate amount of discretion is limited here. However, a particular PO has lots of discretion
e.Has structural methods of limiting discretion
f.Unlike disorderly conduct – where any PO can enforce the law anywhere and against anyone.
B.Ct – ord was unconstitutionally vague and did not meet the fair notice requirement because it did not provide adeq notice of what was prohibited conduct.
C.Ord also violated the req that a legislature estab minimal guidelines to govern law enforcement.
D.Justice Stevens
(1)Issue – Whether IL SC correctly held that ord violates Due Process Clause of 14th Amendment.
(2)City Council found that gang activity was responsible for city’s rising murder rate and violence.
(3)Ord’s broad sweep violates the req that a legislature estab minimal guidelines to govern law enforcement
a.No apparent purpose stnd is subjective because its application depends on whether some purpose is apparent to PO
(4)Ord encompasses harmless behavior
(5)Gives PO too much discretion in determining what activities are loitering.
(6)The three features that limit officer’s discretion is insufficient.
a.Not applied to one moving along or who has apparent purpose
b.No arrest if indiv follows dispersal order
c.Officer must reasonably believe that one of loiterers is a gang member.
(7)City believes that ord resulted in decline in gang-related homicides.
(8)The ord is unconstitutionally vague.
(9)This law does not have a substantial impact on conduct protected by 1st A to render it uncons (overbreadth doctrine). However, US recognizes the freedom to loiter for innocent purposes protected by the Due Process of 14th Amendment
(10)Vagueness of ord makes a facial challenge appropriate
(11)Vagueness can invalidate a law for two reasons
a.Fail to provide notice that would enable ordinary people to understand what conduct is prohibited. Forbidden conduct is not clear
(i)“apparent purpose” is hard to define.
(ii)No additional “loitering with intent” that may make this cons.
(iii)If loitering is innocent, then a dispersal is an unjustified impairment of liberty.
(iv)When PO asks for dispersal, how long must they remain apart and how far. Too vague.
b.It may authorize and even encourage arbitrary and discriminatory enforcement.
(i)No sufficient limits of enforcement discretion
(12)The statute has perverse conseq in that it may have no application to loiterers whose purpose is apparent.
(13)Protect liberty interests
(14)Nothing to say about structure
E.O’Connor concurrence
(1)Ord is uncons vague because fails to provide any stnd by which police can judge whether an indiv has an apparent purpose.
(2)Legis must estab minimal guidelines to govern law enforcement.
(3)Chicago has reasonable alternative to combat gangs.
(4)Chicago can construe the ordi more narrowly to combat the vagueness problem. But, the Court cannot impose a limiting construction that a state supreme court declined to adopt and Court is bound by IL ct’s construction of the ord.
(5)This is a narrow holding and other laws exist that can fulfill same goals.
(6)author of Kolander v Lawson
(7)Worried about how to deal with innocent behavior
(8)Wants to limit discretion by adding “intent” (substance rather than structural)
(9)If have substantive intent, then ord will be fine.
F.Breyer
(1)Worried about anti-delegating
(2)Political process issue
G.Thomas’s Dissent
(1)Ord is not vague
(2)Ord does not violate Due Process.
a.have long history of antiloitering and vagrancy laws.
b.There is no constitutional right to loiter
(3)Ord does not criminalize loitering per se. Rather is punishes indiv’s refusal to follow PO’s orders.
a.This is part of the PO’s fxn to preserve the public peace.
b.To fulfill this fxn, PO must exercise discretion.
(4)There is nothing about an order to disperse.
(5)Defn of loiter is easy enough to figure out.
(6)Not allowing this law will only hurt the good decent people of the communities that have gangs.
(7)The Ct focuses only on the rights of gang members.
(8)Who ought to decide?
(9)History / tradition
H.Scalia
(1)Facial challenge
I.Kennedy
(1)Notice
IV.Structural versus Substantive
A.Which is better to constrain discretion?
B.Structural
(1)Limits number of police, where they can stop
(2)Limits total amount of discretion
(3)Not one of the justices looked at structure
(4)Old ord does not have structural mechanisms to limit discretion (time to disperse and for how long)
V.New Chicago Anti-Loitering Ordinance
A.One of the methods that gangs use to estab control and intimidate is by loitering without committing any crimes so they avoid arrest.
B.City has an interest in discouraging people from loitering because they’re at risk from shootings, etc
C.Loitering is prohibited from certain areas. People must disperse themselves from sight and hearing of the place for the next 3 hours.
D.Police superintendent determines the designated areas after consulting people familiar with the areas – PO, community leaders, CAPS
E.Prohibits gang loitering and narcotics related loitering versus loitering
F.Has time limitations
G.Must inform def that they’re engaged in gang loitering
H.Areas of dispersal
I.Superintendent designates areas
J.Special training (this was in GO, but now in ord itself)
K.Defines loitering – taken exactly from O’Connor’s opinion
L.Addresses substantive limitations on discretion of individual limitation
(1)Concern of O’Connor and Breyer
M.Have structural limitations of police power as a whole
VI.Ques – Is it better to not have ordinance with police discretion as community caretaking fxn or to limit discretion formally
§ 2. Brief Searches and Stops
I.Stops and Reasonable Suspicion [pp. 37–41, 43–60]
A.Traditional framework – Fourth Amend. incorporates a strong preference for warrants, a judicial determination that a planned search is justified.
(1)Justification – For a valid search or seizure, whether carried out with or without a warrant, was probable cause.
(2)Changes in the traditional framework – Caused basically by 3 cases:
a.Katz v. United States – Changed the method of deciding whether a person had an interest that the 4th Amend. would protect.
(i)Moved away from concepts of protected physical spaces (property) concepts if individual privacy.
b.Terry v. Ohio – Established a category of limited stops and searches on a standard less than probable cause: reasonable suspicion.
c.Camara v. Municipal Ct – Created a new method for justifying what the gov’t would need for a search, by balancing competing interests to determine the level of necessary justification.
B.Consensual Encounters and “Stops”
(1)Wesley Wilson v. State(WY) – Where an initial encounter between an officer and was prompted by the officer’s concern for the safety of the citizen, there was no seizure. But when the officer gave the an instruction to wait, a seizure occurred. Since the officer had no specific articulable facts sufficient to create a reasonable suspicion of past or present criminal conduct, the seizure for the purpose of completing a local warrants check was impermissible as a matter of law.
(2)Majority Rule – United States v. Mendenhall– An encounter between a police officer and a citizen becomes a “stop” when a reasonable person in that situation would not “feel free to leave” or to refuse to cooperate. Look at the totality of circumstances.
a.Florida v. Bostick – Where the police confront in a bus, although he was not literally ‘free to leave’ during the questioning because the cops blocked the aisle, he was ‘free to decline the officer’s requests or otherwise terminate the encounter.’
(3)“Reasonable justification” for a stop – For reasonable justification, the police must believe that the person has committed or will commit a crime.
(4)Asking for name and id – More than 20 state legislatures have passed statutes empowering police officers to ask for identification.
a.Note: Subjective intent of the police officer is irrelevant.
C.Grounds for Stops: Articulable, Individualized Reasonable Suspicion
(1)State v. Nelson – drinking beer at 1:30 a.m. in parking lot; Stop of ’s motor vehicle held unlawful because there was nothing support the officer’s suspicion that was operating under the influence other than his observation that consumed 1 beer over 1 hr. Reasonable suspicion requires more than mere speculation; no evidence that the cop observed indicia of physical impairment or anything unusual.
(2)State v. Dean (ME)– Do two facts raise “reasonable suspicion”? (1) ’s presence in an area of recent crime reports; and (2) apparent absence of any reason to be in an uninhabited area at night. Held: A person’s mere presence in a high crime area does not justify an investigatory stop, but the combination of factors (i.e. time of day and uninhabited area) creates reasonable suspicion.
(3)Majority Rule – There are no general categories of facts that can support a finding of reasonable suspicion. In virtually all cases, the conduct of the suspect said to be the basis for reasonable suspicion does not violate the criminal law.
a.California v. Hodari – Cops chased s. S.Ct. held, for there to be a “seizure” there must be 2 considerations:
(i) must yield to police authority;
(ii)Some force must be exerted against the .
II.Basis for Reasonable Suspicion [pp. 61–66, 67–69 nn 1, 3, 4, 6, 71–77, HO #2 re: Wardlow]
A.Criminal Profiles and Police Expertise
(1)Nature of Profiles – Lists of personal characteristics and behaviors said to be associated with particular types of crimes, typcially drug trafficking. Sometimes quite specific, while other times relatively short and general.
(2)Quarles v. State (DEL) – Bus exiters matched profile of drug traders, seizure upheld. 2-Pronged assessment of police conduct:
a.“All the circumstances” including objective observations and consideration of the modes or patterns of operation of certain kinds of lawbreakers;
b.Inferences and deductions that a trained officer could make which might elude the untrained eye.
(3)Majority Position – Most cts. don’t allow a match with the profile alone to constitute reasonable suspicion. Federal law is agnostic, placing no independent weight (+ or –) on the existence of a profile.
a.Minority Position – Rejection or critical of any reliance on the use of profiles to add any weight to field observations.
(4)Officer expertise – Cortez (US)– When used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis of a particular person.
(5)Collective judgments and expertise – Officers make stops based on not only their own expertise but also the expertise in law enforcement because the “profile” places significance on certain facts.