INTRODUCTION
I. State and Federal Restrictions on Law Enforcement
A. Federal Restrictions on Law Enforcement:
1. 4th amendment: Search and Seizure
2. 5th amendment: grand jury, right not to incriminate yourself
3. 6th: right to jury, confrontation, right to counsel, speedy trial
5. 8th: bail, cruel and unusual punishment
4. 14th: due process
B. Incorporation: apply to states as well.
C. States can apply more restrictions than required by the Supreme Court, but can’t take away any restrictions.
II. Introduction of the Fourth Amendment
A. “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.”
1. Prohibits unreasonable searches and seizures by states.
a. There is no 4th amendment protection if the search is by a private actor, acting on their own, and not as an agent for the government.
2. Search: invasion of privacy (i.e. look in car, look in some area)
3. Seizure: interference with a person’s freedom of movement
B. The 4th Amendment protects people, not places. [Katz]
1. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection (open view)
2. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
3. “Reasonable expectation” to privacy test
a. Has the citizen manifested a subjective expectation of privacy?
b. Is it one that society recognizes as reasonable?
C. Deviations from probable cause requirement
1. TERRY– Allowed a stop on less than probable cause, Allowed frisks and searches to protect police safety
2. Administrative searches – are allowed if reasonable (even if there isn’t individualized suspicion). To determine reasonableness, Balance:
a. The need to search against
b. The invasion which the search entails
BRIEF STOPS; CONSENTUAL ENCOUNTERS; REASONABLE SUSPICION
I. Brief Investigative Stops of Searches
A. Three Types of Officer/Individual Encounters
1. Mere Conversation or Non-Stop (Voluntary participation)
a. No justification needed – not really a seizure
2. Investigatory (Terry) Stop—Brief stop of person by officer that does not last long enough to be an “arrest.” A seizure.
a. Requires “reasonable suspicion” that a crime has or is about to occur.
a. a.k.a individualized suspicion & articulable suspicion – officer must state why he believes the suspect acting criminally.
b. Otherwise, evidence obtained is suppressed.
3. Arrest— detain a person for longer time or in more coercive manner.
a. Requires “probable cause” that the individual committed a crime or is committing a crime.
B. Establishing the difference between a non-stop and a stop:
1. Objective test: Based on a totality of the Circumstances – would a reasonable person have believed that he was not free to leave?
a. “Reasonable person” is not the same as most people.
that there was criminal conduct.
B. Majority View—A profile match alone is not enough for reasonable suspicion
1. But a fact that is in a profile has added weight
C. Minority State View – Critical of profiles
D. Federal View – not clear – a profile alone won’t justify a seizure.
1. The presence of a fact in profile doesn’t give it added weight.
2. But that doesn’t mean that they can’t be used as articulable facts.
E. Package profiles—authorities must have reasonable suspicion to justify a short detention and probable cause to seize. [Supreme court]
F. Concerns About Profile
1. Fact of Profile—broad description that describes many people
2. Criminals would avoid the profile descriptions
3. If unwritten then can make up their own descriptions according to facts
4. Dueling facts—that make both a fact and its opposite elements of the profile
5. It is too easy for courts to rely upon the alleged experience of police
6. Also, by putting blacks in a profile is it an excuse to pull them over for a STOP
G. Majority View— When determining reasonable suspicion, Race is allowed as an identifying factor when the totality of the circumstances reveals other nonracial characteristics.
1. Race alone is insufficient for detention/arrest.
