Criminal Procedure
Fall 2011
Professor John Nuchereno
Criminal Procedure, 7th Edition, Cook, Marcus, & Wilson
The 4th Amendment & The Deprivation of Liberty
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
Level
Permissible Police Intrusion
Requirement
I
Request for Info (citizen can stand mute)
Objective and credible reason to approach
II
Common Law Right of Inquiry (where were you 10 mins ago?)
Founded on suspicion that criminal activity is afoot (not necessarily connected to you)
III
Detainer including Frisk
Reasonable suspicion that criminal activity has or will be committed and that person is connected to it
IV
Arrest
Probable Cause
*NY and most other states
RULE: To constitute a seizure of the person, just as to constitute an arrest—the quintessential “seizure of the person” under Fourth Amendment—there must be either (1) the application of physical force, however slight, or, (2) where that is absent, submission to an officer’s “show of authority” to restrain the subject’s liberty.
California v. Hodari D, 499 U.S. 621, 111 S. Ct. 1547, 1548, 113 L. Ed. 2d 690 (1991)
Facts: Cops driving around inner-city area in an unmarked car à Saw group huddled around car and group of kids flee à Unmarked chases the car and the kids scatter and the other cop pursues juvenile D à Before police accost him, Hodari throws something- a rock of crack cocaine
Issue: Whether, at the time he dropped the drugs, Hodari had been “seized” within the meaning of the Fourth Amendment
· Holding: No, there is no seizure if suspect does not yield
o Officer’s pursuit did not count as a show of authority when no application of physical force
o The cocaine abandoned while he was running was not the fruit of a seizure
§ If he didn’t drop evidence, cop had no right to seize him
· Lessons: 4th Amendment is not implicated until there is a seizure
o Can be of person or property
o Takes place when person is physically detained
o If police yell STOP!, then you have reasonable expectation to believe you can’t go free
o Nothing escalated this case to a Level II- could be 5 friends on street talking
TOTALITY OF THE CIRCUMSTANCES TEST FOR DETERMINING SEIZURE: Whether a reasonable person would feel free to decline the officer’s requests or otherwise terminate the encounter
United States v. Drayton, 536 U.S. 194, 194, 122 S. Ct. 2105, 2106, 153 L. Ed. 2d 242 (2002)
Facts: The driver of the bus on which Ds were traveling allowed three police officers to board the bus as part of a routine drug and weapons interdiction effort. Plainclothes officers (flashed badges and IDs) didn’t inform Ds of right to refuse to cooperate. Asked to check luggage of D, who obliged and found drugs. “Do you mind if I search your bag?” Asked D who was wearing a heavy jacket and baggy pants (to hide drugs), asked if he would be searched, and find cocaine on him, and arrest D.
ISSUE: Did a seizure take place?
· Holding: NO à Officers gave no reason to believed that they were required to answer, no brandishing of weapons, no authoritative tone in voice, no blocking exits, no threat, no command, no show of force
o Fact that questioning took place on a bus does not transform standard police questioning of citizens to a an illegal seizure à Level I: request for information à a denial DOES NOT elevate it to Level II
§ If a citizen consents to a search that’s otherwise improper, they have waived their right not to cooperate
Random Stops
RULE: Stopping an automobile and detaining the driver in order to check the driver’s license and the registration of the automobile are unreasonable under the 4th Amendment, except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or the either the vehicle or the occupant is otherwise subject to seizure for violations of law
Delaware v. Prouse, 440 U.S. 648 (1979)
Facts: At a hearing on respondent’s motion to suppress the marihuana seized as a result of the stop, the patrolman testified that prior to stopping the vehicle he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driver’s license and registration. D was indicted and charged with a felony for possession of controlled substance.
ISSUE 1: Was there a seizure involved?
HOLDING 1: Yes à stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of the 4thand 14th Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.
ISSUE: Was seizure proper?
Holding: No à No reasonable suspicion that crime has been committed, he was Level III right away with no right to be there
Pervasive Road Block
RULE: Government’s use of sobriety checkpoints does not violate the 4th and 14th Amendments
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 444, 110 S. Ct. 2481, 2483, 110 L. Ed. 2d 412 (1990)
Facts: Sobriety Checkpoints à 126 vehicles they stop, they get 2 people who are driving drunk, so 124 people were stopped for no reason à Michigan Citizens sued, not the drunk drivers
Holding: The balance of the state’s interest in preventing drunken driving, the extent to which the system can reasonably said to advance the interest and degree of intrusion upon individual motorists, weigh in favor of state’s program
City of Indianapolis v. Edmond, 531 U.S. 32 (2000)
Issue: Constitutionality of a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics (fourth amendment)
Facts: narcotics checkpoints in Indianapolis with a 9% rate of arrest. 5 minutes or less for routine stops.
Procedural history: District court said the checkpoints were constitutional. Court of Appeals reversed. Supreme Court affirms à UNCONSTITUTIONAL
Rule: a seizure must be accompanied by some measure of individual suspicion. Exceptions only if the purpose of the checkpoint in that case was closely related to he problems of policing the border or the necessity of ensuring roadway safety.
Holding: unconstitutional because the purpose of the checkpoints here is a general interest in crime control, not to ensure roadway safety. Too general to justify violating the fourth amendment.
Modicum of Suspicion
RULE: A refusal to answer a police officer’s request for information (Level 1), cannot give way to detention or arrest
Norwell v. Cincinnati, 414 U.S. 14 (1973)
Cop asked man walking home from liquor store some questions à Had been complaint that someone had been walking through streets à Man walked away à Gets arrested for disorderly conduct
· Issue: Did the disorderly conduct ordinance operate to punish D’s constitutionally protected speech?
· Yes à One is not to be punished for nonprovocatively voicing his objection to what he obviously felt was highly questionable detention
RULE: A Person may be stopped only if the officers have a reasonable suspicion based on objective facts that individual was involved in criminal activity.
Brown v. Texas, 443 U.S. 47 (1979)
Saw D and another man walking in alley in area with high drug traffic à asked D to Id himself à D refused to ID himself and said they had n right too à they frisked him and found nothing à was arrested for violating law
Issue: whether D was validly convicted for refusing to comply with the policeman’s demand that he identify himself pursuant to a provision of the Texas Penal Code which made it a crime to refuse to ID oneself
Holding: Yes, violated rights because lacked reasonable suspicion to believe D was engaged or had engaged in criminal conduct
RULE: An officer may not arrest a suspect for failure to ID himself if the request for ID
h access to that information is also likely to have access to reliable information about that individual’s illegal activities
RULE: An anonymous tip cannot form the basis for reasonable suspicion only if accompanied by separate indicia of reliability, i.e. the correct forecast of a suspect’s not easily predicted movements
Florida v. JL
Facts: Anonymous tip that black guy standing on street corner wearing a plaid shirt has a gun à frisked 3 matching the description and found weapons on JL
Issue: Whether an anonymous tip that a person is carrying a gun, without more, is sufficient to justify a Terry stop and frisk
Holding: NO à bare report of unknown, unaccountable informant who neither explained how he knew about the gun or supplied any basis for believing he had inside info about JL
The Problem of Pretext
· Cop stops for what he claims is one reason, but is really stopping on the basis of some other suspicion
REASONABLE OFFICER TEST: Whether a police officer, acting reasonably, would have made the stop for the reason given à Motivation of police officer is irrelevant in determining reasonableness of a stop
Whren v. United States
Facts: Cops in unmarked car pull over car with valid plates with young people inside claiming it was stopped for an unreasonably long time, speed off without signaling (unreasonable speed that is not defined) à while stopped, cop sees drugs à arrested
Issue: Whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with 4th Amendment’s prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce traffic laws
· Plainclothes cops in unmarked vehicles do not reasonably investigate minor traffic infractions
o “Police will almost invariably be able to catch any given motorist for a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists”
Scope of the Frisk
RULE: The search of a passenger compartment of an automobile, limited to an area where weapon may be placed or hidden, is permissible, if the police officer possesses a reasonable belief based on specific, articulable, facts which taken together with the rational inferences from the facts reasonably warrant the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons
Michigan v. Long
Facts: Observed car traveling erratically on a rural road that swerved off and into a shallow ditch, refused requests to produce documentation, appeared to be under the influence, saw a large hunting knife on the floorboard of the driver’s side of the car, subjected to Terry pat-down which revealed no weapons but found bag of MJ
Issue: whether a Terry protective search for weapons can extend beyond the person in the absence of probable cause to arrest
Holding: Yes, Terry does not restrict to a search of person as a danger may arise from a weapon in the area surrounding the suspect
· The circumstances of case justified reasonable belief that D posed a danger if he was permitted to re-enter vehicle
RULE: Terry does not authorize a PLAIN-FEEL doctrine à Cannot continue to search a suspect after determination that there were no weapons
