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Criminal Procedure
University of Mississippi School of Law
Rychlak, Ronald J.

Fall 2013
I.      Detention and Suspicion
A.      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 . . . .
·    Issue: The limit on unreasonable seizures
·    Reasonableness = Amount of suspicion
·      The police need to have a certain amount of suspicion to detain you
·    Reasonableness Requirement is Triggered only if there is a Seizure
·      Stop
·      Detention
·      Deprivation of Restraint on Physical Liberty
·    What does the requisite level of suspicion depend on?
·      Intrusiveness, time, nature of stop
·      Interest of law enforcement
B.      Seizure
·    Seizure Occurs if:
·      There is a Use of Physical force to restrain movement or Submission to Assertion of Authority
·         Ex: Hodari D- suspect dropped drugs b/4 he was ‘seized’
·      Reasonable person does not feel free to terminate the encounter, leave, and decline the request.
·         Objective Test: Little attention to particular characteristics of the person
·         Ex: Drayton: alleged ‘seizure’ occured on the bus
·   Detail: Seizure occurs if law enforcement retains ID or ticket
·    Amount of Suspicion needed to Stop (“Seize”) and Individual
·      Reasonable suspicion
·      Based on objective facts
·      That the individual is involved in criminal activity
·    Issue: Time Lag Problem- b/t assertion of authority and submission
·      Moment of submission=moment of seizure
·         Fortuitousness
·   If the person throws away drugs before seizure, the police win by luck
·   No difference in Law Enforcement conduct could produce different results
·         Just the force of “touching” could possibly activate the rule
·    Exam possibilities:
·      Warning shot in the air?
·         D: Assertion of authority or Use of physical force to restrain
·         P: Equivalent of “stop, it’s the police”
·      Warning shot that (accidentally) hits suspect in leg?
·         D: Physical liberty is lost; Touching
·      Yelling “Hey, you”
·         D: Assertion of authority; equivalent of “Stop, it’s the police”; Police officer in uniform projects authority
·         P: Not an assertion of authority, just a greeting
C.      Suspiciousless Seizures
·    Isolated Random Stop
·      Isolated random stop is not allowed b/c there is NO SUSPICION
·         And only a minimal law enforcement interest
·    Permissible Suspicionless Seizures
·      Security checks (airport, courthouse)
·      Exigent circumstances (if there is a fleeing suspect that they are searching for)
·      Profiling (Not based on race, religion; ex: buying one way ticket in cash)
·      Some Roadblocks
·         Reasonable suspicion must be individualized
·         Roadblocks are permitted if there is a specific, primary purpose that is related to use of the roadway.
·   Sobriety checkpoints= Roadway safety
·   Registration checkpoint= Motor Vehicle Laws
·   Investigatory checkpoint for Specific Accident
·         Illinois v. Lister= fatal hit-and-run
·   Also Permitted if:
·         Imminent, terrorist attack
·         Fleeing dangerous criminal
·         Roadblocks NOT Permitted if: Primary purpose comprises general crime control
·         Subjective intent of law enforcement does not invalidate an otherwise justifiable stop
·         Supreme Court does not approve of a roadblock simply because it is effective (9% of public engaged in violations)
·   Look at other factors; Effectiveness is not dispositive
D.      Identification Statutes
·    ID laws permissible
·      Limit
·         Arrest allowed only if request for identification reasonably related to circumstances that justified the stop
·    Identification statute allows an officer to  without any further conduct by the suspect, other than being unable to show ID
·    ID Statutes make it easy for officers to arrest/detain
·    Court: An identification statute that simply grants an officer blanket authority is illegitimate.
·      But a law that says an officer may ask for ID when the request is linked to circumstances of the encounter (reasonable related) and does not give the officer unconstrained discretion is allowed
·      Ex: Asking for ID when pulled over by the police
·    Absent other facts, if all the officer says is “May I talk to you?”, that definitely falls on the non-seizure side of the spectrum
·      Officer does not have to have reasonable suspicion
·    And what if the officer then says “May I see your ID?” due to an operative statute in the district, if you do not show it, the officer then has probable cause to arrest you because you have violated the law.
·      Gone from a situation where the officer has no grounds to take away a suspect's liberty to tremendous grounds.
·      “Boot strap” less than reasonable suspicion into more than reasonable suspicion= probable cause
II.    Terry Stop and Frisk
A.      Facts of the Case
·    Three men plot to rob a store; case a store
·    Time of day and small facts are important in these cases and on the exam
·    Officer fears they have a gun
·    Officer's experience made him draw some reasonable inferences from the conduct of the suspects
·      Reasonable suspicion= because it's based on experience, factual observation, coupled with conduct
·    EXAM:
·      There are all sorts of facts we could manipulate which would make the behavior more or less suspicious
·         LESS: If it was just one person, they only walked one time instead of a dozen, etc..
·         MORE: If they dropped a gun on the ground, displayed masks/stockings, etc..
·      When is there a seizure?
·         When he walks up? No
·         When he asks for their ID?  (if he takes their ID, Definitely)
·         Arguably, yes; A reasonable person would not feel free to terminate the encounter
·         When he grabs the subject? Yes
B.      Terry Stop
·    Stop = Detain briefly for questioning or investigation
·      All sorts of things that could take place during this investigation that could allay the officer's suspicion
·         Show badge that they are officers, show papers that they own the store it seemed like they were casing
·      Things could make th

ot observed) allowed
·         “Hearsay”
·         Fellow officers, dispatcher, etc.
·         Informant/anonymous tips allowed
·      Suspect present in high-crime area
·         Alone= Insufficient; But it is PERMISSIBLE consideration for reasonable suspicion
·         Location is a fact
·   Higher statistical chance that a person in a high crime area is more likely to be involved in crime than persons in a low-crime area
·      Suspect flight from law enforcement: Headlong Flight Doctrine
·         Suggestive of wrongdoing
·         Unprovoked, Headlong flight from law enforcement coupled w/ other factors sufficient
·   Headlong= automatically turning and running in fear of officers
·   Vs. “Mere” flight
E.       Anonymous Tips
·    Standard
·      Indicia of reliability
·         Details to establish knowledge or credibility
·      Corroboration of details by law enforcement
·         Prediction crucial?  Predictive vs. non-predictive
·         Ex: Florida v. J.L.: Anonymous tip that there is a young black male wearing a plaid shirt at a particular bus stop carrying a gun
·   Not predictive
·    Magnitude of the crime/danger affects analysis
·    The concern is the potential for harassment
F.       Pretext
·    Subjective intent of law enforcement is not relevant
·      Even if law enforcement acts in bad faith
·    So long as there are objective facts, known to officer, that support detention/search
III.  Scope and Expansion of Terry Stop & Terry Frisk
A.      Terry did not expressly address whether a protective search for weapons “to neutralize the threat of physical harm” when the police officer has an articulable suspicion that an individual is armed and dangerous could extend to an area beyond the person in the absence of probable cause to arrest
B.      Scope of Protective Search
·    Law Enforcement may search those areas in the passenger compartment of vehicle where a suspect might have a weapon
·    Suspicion required
·      Reasonable suspicion that suspect dangerous and could gain immediate control of weapon
·    Ex: Michigan v. Long
C.      Expansion of the Search
·    1) If Officer feels no object OR object not reasonably a weapon, Then the search is over
·      Officer has run out of suspicion to do something else
·    2) If Officer reasonably suspects object is a weapon, Then officer may expand the search
·    3) If Officer feels object with immediately apparent incriminating character, Then officer may expand the search (A Probable Cause Standard)