Arrests and Seizures Flashcards
Definition of Seizure
When an officer, but means of physical contact or show of authority, intentionally terminates or restrains the person’s freedom of movement.
[Physical force, or show of authority (flashing badge and saying Stop) count.]
[Test: Would a reasonable person feel free to disregard the officer]
Types of Seizure
- Stop and Frisk/Terry Stop
- Traffic Stops
- Arrests
- Warrants
- Warrantless Arrests
Burden Hierarchy
- Beyond a Reasonable Doubt [is needed] for Conviction
- Probably Cause (more likely than not) [is needed] for Arrest
- Reasonable Suspicion [is needed] for Stop
Terry Stop/Stop and Frisk
An officer stops an individual when the officer has a reasonable suspicion, based on articulable facts, to believe the suspect is or is about to engage in criminal behavior.
- Officer may pat down for weapons, but not evidence.
- If the pat down reveals objects whose shapes make their identity obvious, the officer may seize those objects (contraband)
- If probable cause develops during a Terry Stop then the officer can make an arrest
Consequences of Stop not based on Adequate Suspicion
- If the initial stop is unlawful, but the officer develops the basis for a lawful arrest during the stop, the evidence seized can be used in trial.
- If the arrest is unlawful, evidence seized cannot be used as evidence in trial.
Traffic Stop
Officer must have reasonable suspicion to stop a car
- Once there is a lawful stop, officer may pat down suspect if there is a reasonable suspicion the person has a weapon
Checkpoints: Officers do not need a reasonable suspicion to stop drivers if they pull everyone over.
Arrests
There must be probably cause to believe that the arrested individual has committed a crime (objective standard).
- Can be made without a warrant
- Pretext Arrest: As long as the police have probable cause to believe an individual committed a crime, it is irrelevant whether the officer stopped that person for the crime for which there is probable cause or some other crime.
[Pretext Arrests are fine under 14th Amendment so long as not racially or discriminatorily motivated]
Warrants
A warrant authorizes an officer to arrest a particular person.
- Issued by a neutral and detached magistrate based on a finding of probable cause that the individual committed the crime,
- Warrants must NAME the person and IDENTIFY the offense
- Allows officers to enter person’s home for arrest
- DOES NOT apply to third party homes
- An additional warrant is needed to search the home
Absent a Warrant, Officers can Only Arrest someone in their Dwelling IF:
- There are exigent circumstances (hot pursuit of felon, i.e.)
- There is consent to enter
Warrantless Arrests
An officer can arrest an individual without a warrant in a public space, either for a crime committed in the officer’s presence or based on probable cause the individual committed a felony
- If the crime was not committed in the officer’s presence, warrantless arrest can be used only for felonies
Searches Incident to Arrest
A lawful arrest permits the arresting officer to make a contemporaneous search of the person arrested an the immediate surrounding to:
- protect officer from weapons or other dangers AND
- To prevent destruction or concealment of evidence
Any evidence discovered during the search incident to a lawful arrest may be used as evidence
Rules
Arrest on the Street: Cans search the suspect and his wingspan
Arrest at Home: Can search the suspect and his immediate arrest area
Arrest in Car: Mat search passenger compartment as long as the person/suspect sill has access to the vehicle at the time
[Cannot put suspect in squad car then search vehicle. Unless reasonable to believe that vehicle held evidence that relates to the arrest]
Inventory Search: When the police arrest a driver and impound the car, the car may be searched for inventory purposes
Special Rule for Cell Phones: Officers may seize a cellphone during an arrest and check the phone for dangers, but police need a warrant to search the phone’s digital information.
Define a “Search”
Occurs when government conduct violates a reasonable expectation of privacy.
Government Conduct
Can occur with or without physical intrusion upon private property.
Using some types of technology constitutes as a search.
Reasonable Expectation of Privacy
Places where privacy is reasonable expected:
- Homes
- Hotels
- Offices
- Luggage
- Backyard of Home
Areas where Privacy is Not Expected
- Public Streets
- Open Fields [even if on Private Property]
- Garbage Left out on Street
- Abandoned Property
Exam Note: Be aware of who holds the reasonable expectation of privacy and who is doing the searching. The government’s actions are valid unless it is the defendant who had the reasonable expectation.
Cars have special rules
Search Warrant Requirements
- Must be issued by a neutral magistrate’
- Based on probable cause that the items sought are fruit, instrumentalities, or evidence of a crime;
- The warrant describes the property and place to be searched with particularity.
Rule: If the warrant does not meet the requirements it is invalid and evidence seized is excluded from prosecutor’s case-in-chief.
Wiretapping Requirements
Wiretapping constitutes a search and requires:
- Probable cause and Warrant
- Specifically identifies whose conversations are to be intercepted
- Must include an END DATE for the warrant
- Must perform minimization [attempt to avoid picking up calls outside of scope of warrant]
Seven Exceptions to Warrant Requirements (ESCAPES)
- Exigent Circumstances
- Search Incident to Arrest
- Consent
- Automobiles
- Plain View
- Evidence Obtained from Administrative Searches
- Stop and Frisk
Exigent Circumstances (As an Exception to Warrants)
If officers are in “hot pursuit” or there is an immediate danger, they may conduct a search without getting a warrant first.
- This exception does not apply when the police create the exigency
- Absent exigent circumstances, police need a warrant to draw blood
Search Incident to a Lawful Arrest (Exception to Warrant)
IF the arrest is LAWFUL, warrant is unnecessary
- Scope: Limited to immediate area around individual
- Automobile: Arrestee must be within reach of passenger compartment to search it
- DNA: Samples may be collected as part of search incident to arrest
- Cellphones: CANNOT search for digital information
