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Criminal Procedure: Investigation
University of Mississippi School of Law
Hall, Matthew R.

Hall
Criminal Procedure I
2010
 
 
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:
·

·      Less likely for suspect to be thought to be armed and dangerous if you add that the suspect is
·         A senior citizen
·         Child  
·    More than a (mere) Frisk
·      Permissibility of more invasive/intrusive search? When is it permissive?
·         Dangerousness of pat down/frisk
·   Transition from relatively routine frisk to potentially a matter of life and death.
·   A frisk is dangerous for the officer and we are inclined to recognize that danger and recognize that danger could possibly escalate if a weapon is present.
·         Limited nature of additional intrusion
·   Small, incremental, additional intrusion to retrieve the weapon
·         Conduct of suspect
·   Suspect's conduct will probably allow the officer to expand the frisk as well
·      Need FACTS that would make it permissible for an officer to go beyond frisk
·      There must be
·         Reasonable Inferences
·         Based on Observation or Information
·         Of an Objective fact that is
·   Specific and
·   Articulable
·         NOT
·   Hunch/Inchoate/Intuition
D.      Standards for Suspicion for more than a Frisk?
·    Suspicion must be based upon
·      Objective, Specific, Articulable Facts
·      Officer must be able to describe the encounter before the law enforcement conduct
·      Evaluated from point-of-view of officer in the field
·    EXAM: Issues with Reasonable Suspicion
·      Information (not 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