Basics, Arrests, Seizures

Question 1

Basic Principles

Answer 1

• Constitutional protections apply only to government action
• Exceptions
  
  • Private persons acting as government agents (asking inmate to speak with another inmate)
  • Defense counsel (both public and private) are terated as government actors for purposes of 6A with respect to effective assistance of counsel

Question 2

Arrest + Seizure of Persons - General

Answer 2

General - police can approach anyone in a public place, and unless the encounter escalates to police preventing person from leaving there is no real contraint on what the police can do and no protection against what they discover (e.g., can tail a suspect, can canvass a neighborr, can ask questions)

Question 3

Arrest + Seizure of Persons - Seizure General

Answer 3

Seizure Rule - when officer, by means of physical force or show of authority intentionally terminates or restrains the subject’s freedome of movement.

Ex: grabbing a suspect by arm, shooting suspect in leg, blocking a suspect’s ability to move, shouting “we are police, stop!”

Ex: non seizure - running over a third party while chasing a suspect

Test - would a reasonable person feel free to disregard the officer

Question 4

Arrest + Seizure of Persons - Seizure Types p1

Answer 4

Types of Seizures

1. Stop and Frisk / Terry Stop - officer can stop 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

Burden Heirarchy -

• Reasonable Suspicion -> stop
• Probable Cause -> arrest
• Beyond a Reasonable Doubt -> conviction

Frisk - during a Terry Stop, an officer can pat-down a detainee for weapons but cannot initiate a search for evidence

• if pat-down reveals objects whose shape makes their identity obvious, then officer can seize those objects
• if probable cause develops during a Terry Stop then officer can then make an arrest

2. Traffic Stops - officer can pat-down suspect; and officer does not need reasonble suspicion to stop drivers if they pull over everyone (e.g., checkpoints)

Question 5

Arrest + Seizure of Persons - Seizure Types p2

Answer 5

3. Arrests - must be probable cause to believe that the arested individual has committed a crime

OHIO - private individual ma arrest and detain a suspect for a felony as long as she has reasonble cause to believe the other person commited a felony; but no authority for misdemeanors

Pretext Arrest - as long as police have probable cause to believe an individual commited Crime A, police may arrest that individual on the basis of a hunch that thre is another crime involved

4. Warrants - issued by a neutral and detached magistrate based on a finding of probable cause to believe that the named individual has committed a particular crime and must name the person and identify the crime.

• allows officer to enter a home to arrest the individual
• absent a warrant, can arrest someone inside dwelling if (1) exigent circumstance or (2) there is consent to enter
  
  • exigent = felony hot pursuit or danger to others

5. Warrantless Arrest - officer has probable cause to believe the individual committed a crime but without a finding of probabe cause by a neutral and detached magistrate

• if officer sees crime being committed
• if someone told officer a crime has been committed, then can only make arrest for a felony (must see a misdemeanor)

Question 6

Search Incident to Arrest

Answer 6

Search Incident to Arrest - lawful arrest permits the arresting officer to make a contemporaneous search of the person arrested and the immediate area surrounding the person to:

1. protect officers’ safety and public safety; and
2. to prevent destruction of evidence

and any evidence discoverd during such a search can be used against the person.

Situations:

• arrest on the street - can search the suspect and his area within his wingspan
• arrest at home - can search the suspect and his immediate arrest area
• arrest in car - may search passenger compartment of a vehicle as long as the suspect still has access to the vehicle at the time
  
  • e.g., if arrested, cuffed, and put in squad car, then cannot search through car
  • EXCEPT when it is reasonble to believe that the vehicle contains evidence of the offense of the arrest, such a search is proper
• inventory search - when police arrest drive and impound car, it may be searched for inventory purposes

Key - if arrest was illegal (because no probable cause or there was some other violation) then evidence seized during search incident to arrest should be excluded

Exam Tip - make sure i) arrest was with probable cause and ii) search was not beyond the scope of search incident to arrest