Select Page

Criminal Procedure
University of Kentucky School of Law
Welling, Sarah N.

Criminal Procedure Welling Spring 2017
The Fourth Amendment
The Fourth Amendment
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 particularity describing the place to be searched, and the persons or things to be seized
Can be defined as a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy
A seizure can be defined as the exercise of control by the government over a person or thing
What is reasonable under the Fourth Amendment depends on the circumstances
When Does the Fourth Amendment Apply?
Government Action and Private Persons
The Fourth Amendment only applies to conduct from the government and government agents (formal and informal)
FedEx employees accidently broke into a package, they investigated package and discovered a white substance, called the DEA who tested substance, without a warrant, and discovered it was cocaine (US v. Jacobsen)
Court found the initial invasions of D’s conduct were occasioned by private action (the employees), so the Fourth Amendment didn’t apply
Private Person Factors
Motive of the private person
Level of government involvement
Benefit private person receives from the government
Defining “the people”
“People”, in the Fourth Amendment, refers to a class of persons who are part of a national community or who have otherwise developed a sufficient connection with this country
Aliens who come within the territory of the US and develop substantial connections with the US, receive constitutional protections
DEA searched D’s (a Mexican resident) property, located in Mexico, and found incriminating evidence (US v. Verdugo-Urquidez)
Court found that the Fourth Amendment was never intended to retrain the actions of the Federal Government against aliens, outside US territory
Arrests and Other Detentions
Government detentions of persons constitute seizures of the person, so they must be reasonable to comply with the Fourth Amendment
Reasonableness depends on:
The scope of the seizure (arrest or investigatory stop?), and
Strength of the suspicion prompting the seizure (i.e. – probable cause or reasonable suspicion)
What Constitutes as Seizure of the Person?
General Rule
Arrest, or
A seizure, which occurs when, under the TOC, a RP would feel that he was not free to terminate the encounter (Florida v. Bostick)
Two Possibilities:
Physical application of force by the cop, or
A submission to the cop’s show of force
Police were allowed to check everyone on a bus for illegal drugs, wasn’t a seizure (US v. Drayton)
Mere fact that people felt they were not free to leave because they feared that the bus would depart does not make this a seizure of the person
Factors to find “seizure”
Application or force
Intimidating movements
Overwhelming show of force
Brandishing of weapons
Blocking exits
Authoritative tone of voice
Fleeing suspect tossed out an object, which police collected and proved to be cocaine (California v. Hodari)
Not a seizure because suspect was fleeing, a seizure did not occur if the subject does not yield (no physical force/submission to assertion of authority)
Probable Cause Requirement
All arrests must be based on probable cause
Means at the time of arrest, the officer has within her knowledge reasonably trustworthy facts/circumstances sufficient to warrant a RPP to believe that the suspect has committed or is committing a crime for which arrest is authorized by law
When officer reasonably believes a crime has been committed, probable cause exists
D was in the passenger seat of a car that cops stopped for speeding, driver consented to a search of the car, cop found drugs and money (Maryland v. Pringle)
Under the circumstances, the police had PC to believe that D, alone or with the other occupants, committed the crime of possession of cocaine

Judicial Review of Warrantless Arrests
“Prompt” judicial review is required following a warrantless arrest to determine if there was PC (Gerstein)
Bright-Line Rule
“Prompt” means it should be reviewed within 48 hours of warrantless arrest (Riverside Co. v. McLaughlin)
If it’s longer than 48 hours, burden shifts to government to prove its validity
Terry Stops
Police have the authority to briefly detain a person for investigative purposes even if they lack PC for arrest, but this is a “seizure”
Also: if the cops have RS to believe that the detainee is armed/dangerous, they may conduct a protective frisk
Rule (Reasonable Suspicion)
Police must have a reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime
Dual inquiry for stop and frisk:
Stop justified at its inception?
Reasonable in scope?
Cop observed three men acting suspiciously around a store front leading officer to believe they were about to rob it, men refused to give officer their names & officer frisked one, D (Terry v. OH)
Justified at inception because officer believed Terry was armed and dangerous
Reasonable in scope because the frisk was only a pat-down for weapons
Reasonable Suspicion Defined
Court has never specifically defined “reasonable suspicion”
We know it’s something more than vague suspicion, and something less than PC
Standard (US v. Cortez)
Reasonable suspicion required for officers to make a stop:
Based on TOC, and
Particularized individual is subject of particularized suspicion that is articulable
More than a “hunch” of illegal activity