Select Page

Criminal Procedure: Investigation
University of Pennsylvania School of Law
Bibas, Stephanos

I. The Border of Criminal Procedure
A. Police as Community Caretakers
– Basics
o Majority of states have applied some form of the community caretaker doctrine to police – often arises when courts relax the usual restrictions on searches and seizures that apply during a criminal investigation.
o Can cover a wide variety of activities, including examining abandoned vehicles and assisting drunks.
– Cases
o State v. Michael Dube (Me. 1995)
§ Facts: Custodian entered defendant’s apartment with police to stop a water leak. He was not home, and police found human/animal feces all over. Called Department of Human Services, charged with endangering welfare of child.
§ Rules:
· Police officers have legitimate role as a public servant to assist those in distress and to maintain and foster public safety – this role is completely divorced from the detection, investigation, or acquisition of evidence relating to violation of a criminal statute.
· When performing a lawful police function such as caretaking, observations are proper, but once required to do so, must obtain a warrant to proceed with search.
§ Holding: Police officers’ continued presence after the plumbing repairs were completed was unlawful.
§ Principles Established: The 4th Amendment protection against unreasonable search & seizure doesn’t just extend to crime control activities – the key is REASONABLENESS
o State v. Michael Lovegren (Mont. 2002)
§ Facts: Police officer on routine patrol found vehicle parked on side of highway with motor running and headlights off. Saw man not moving in driver’s seat. When he opened the door, defendant awoke and said “I was drinking.” Police officer then tested his blood alcohol level and he was charged with driving under the influence. Defendant filed a motion to suppress all evidence obtained during the stop, arguing that the stop was not justified.
§ Rules:
· Most jurisdictions have adopted community caretaker doctrine – a peace officer has a duty to investigate situations in which a citizen may be in peril or need some type of assistance. The scope of any intrusion following the stop must be limited to those actions necessary to carry out the purposes of the stop, unless particularized suspicion or probably cause subsequently arises.
· Community caretaker doctrine analysis: (1) If an officer states that he stopped to assist a person who appeared to be in need of assistance, an objective view of the specific and articulable facts must be examined to determine whether they support the officer’s statements; (2) a determination must be made regarding at what moment the officer “seized” the person and thereby implicated Fourth Amendment protections.
§ Holding: Particularized suspicion was not necessary because the officer had a duty to investigate for his safety, and the escalation of events leading to Lovegren’s arrest was proper. Opening the door did not count as “seizure.”
§ Principles Established: Sliding scale of reasonableness inquiry – the greater cause for concern, the greater intrusiveness permitted before 4th Amendment protections come into play
B. Police Enforcement of Civility
– Basics
o Most state appellate decisions reverse disorderly conduct convictions based solely on profane insults directed towards police officers.
o Majority: Cops are expected to have thicker skin, cursing at cop is not enough, but a lot of police discretion in this arena.
§ Sometimes vague laws à too much police discretion.
– Cases
o State v. Stanley Janisczak (Me. 1990)
§ Facts: Police officers arrested individual for driving with a suspended license. He was resisting, and a crowd developed. Defendant was yelling profanities at the cops and got in close proximity to the arrest.
§ Rules:
· Somebody is guilty of obstructing government administration when the person uses intimidation or engages in any criminal act with the intent to interfere with a public servant performing or purporting to perform an official function.
· The act of verbally protesting a police officer falls within the scope of our constitutional protection of speech, unless the state has a compelling interest in prohibiting the particular speech used.
· Under these circumstances, in order for behavior to be “fighting words” and violate disorderly conduct statute, conduct must be egregiously offensive, so offensive as to have a direct tendency to cause a violent response even from a police officer (police officers are held to a higher standard and expected to tolerate behavior that an ordinary citizen might not).
§ Holding: Insufficient evidence presented to find that he engaged in disorderly conduct.
C. Control of Gangs and Kids
– Basics
o Police can contribute best to the control of crime if they ultimately strengthen the community’s own ability to control crime. Thus the “disorganization” of a community is the most salient source of crime.
o Many state and local governments have passed laws empowering the police to enforce a curfew on persons less than 18 years old.
– Cases
o City of Chicago v. Jesus Morales (U.S. 1991)
§ Facts: Chicago City Council enacted a Gang Congregation Ordinance prohibiting criminal street gang members from loitering with one another or with other persons in any public place for no apparent purpose. It was only to be enforced within designated areas, and nobody was to be arrested until they were told to disperse and refused.
§ Rules: Vagueness may invalidate a criminal law for either of two independent reasons: (1) may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; (2) may authorize and even encourage arbitrary and discriminatory enforcement.
§ Holding: This Ordinance violated the Due Process Clause of the 14th Amendment because it left too much discretion to the police and too little notice to citizens who wish to use the public streets.
§ Thomas Dissent: Police are here to help – judge should not prevent them from doing their jobs. Many would like this additional protection until neighborhoods are cleaned up.
§ Aftermath: Revised ordinance tracks concurrence – lists specific areas, must show particular apparent purpose. Has grassroots democratic flavor – to go to local meetings, becomes less like outside political intrusion and more like trying to help the community help itself.
– Articles
o Tracey L. Meares: Norms, Legitimacy and Law Enforcement(2000)
§ Low economic status, ethnic heterogeneity and residential mobility led to the disruption of community social organization which accounted for variation in crime and delinquency rates in a given area.
§ Norm enforcement is easier when individuals in a community have social linkages and trust one another.
· The best norm-based strategies will maximize social organization benefits without visiting as high a cost on disadvantaged communities as high rates of imprisonment.
§ Legitimacy of enforcement matters (must be fair)
· Should really encourage police visibility – need to let them see police aren’t just oppressors, built legitimacy so they believe you are being fair (i.e. arrest young white drug users first). Current police practice – get in & get out, incentive structure doesn’t encourage legitimacy.
§ The Chicago ordinance was revised, changed the definition of loitering to lead to less police discretion
§ The capacity for community social control is the best way to control crime. Our current approach is inconsistent with the project of improving community capacity for social control – especially the capacity of those communities that possess the highest crime rates. Our theory is dangerously counterproductive.
· Current police practice emphasizes statistics – promotion based on # of tickets, arrests, etc.
§ All about outside oppression v. reinforcing social institutions (community will have better impression of cops if focus is on the latter)
· So much depends on whether we view police as adversaries or friends.
D. Traditional and Community Policing
– Basics
o Mid 1800’s – 1940’s à local political leaders controlled police departments who responded to a wide variety of social needs
o 1940’s – 1980’s à “the reform era” – police narrowed their functioning to crime control and criminal apprehension. Police agencies became law enforcement agencies.
§ Many thought this went too far – police were estranged, and computerization began to allow for getting to problems quickly.
o 1980’s – present à “community policing” – shifts control over police resources from central police management to the community level. Broadens the goals of policing to include community order beyond crime control.
§ Community policing is spreading in the United States, but its effectiveness is hard to measure.
– Articles
o Herbert Packer: The Limits of the Criminal Sanction (1968)

Crime Control Values
(Conservatives – Rehnquist)

Due Process Values
(Liberals – Brennan)

Efficiency – High Rate of Apprehension & Conviction

Stresses Possibility of Error in CJS

High Police discretion, Informal and Uniform Rules

Need limits on Police Discretion

Repression of criminal conduct = most important function

Formal, adjudicative, adversary fact-finding needed

Extra-Judicial Processes preferred to judicial

Balance efficiency & reliability – ↑Efficiency à ↑Tyranny

§ The Packer Article doesn’t allow room for community policing – maybe it’s not good social policy.
§ It still remains to ask how much weight is to be given to the competing demands of reliability (high degree of probability in each case that factual guilt has been accurately determined) and efficiency.

o Community Policing Consortium, Understanding Community Policing: A Framework for Action (1994)
§ It is essential that police work closely with all facets of the community to identify concerns and to identify the most effective solutions.
§ Historical Perspective on the Role of Police
· The Reform Era coupled with a nationwide move toward professionalization resulted in the separation of police and the community.
o With the increase in technology (telephones, computers), police had little time to focus on crime prevention. Random response became an end in itself.
o Random patrolling (police worked in different areas) also served to further break the link between communities and police.
§ Core Components of Community Policing
· Community Partnership
o Establishing and maintaining mutual trust is the central goal
o Police must treat people with respect and sensitivity
o Often easier in middle-class and affluent communities
· Problem Solving
o Underlying conditions create problems, and a problem created by these conditions may generate many incidents. These incidents will continue to occur so long as the problem creating them continues to exist.
o Determining the underlying causes of crime depends on an in-depth knowledge of the community
o Problem-solving is dependent on input from both the police and the community
§ Implications for Management and the Organizational Structure
· Must shift initiative, decision-making, and responsibility downward within the police organization.
· Systems for evaluations should reflect the goals of community policing – emphasize quality over quantity
· Make the patrol officer a desirable and lifelong position, rather than a stepping stone – must be more accessible to community members
· Wide dissemination and information sharing is necessary
· Emphasis on analytic skills and expert systems management.
§ Assessing Internal Changes
· Customer satisfaction is an important measure of effectiveness.
· It is difficult to measure the effectiveness of crime-prevention efforts.
II. Brief Searches and Stops
– Traditional Framework
o There is a strong preference for search warrants
o Warrantless searches are generally considered unreasonable, and exceptions to the warrant requirement are jealously and carefully drawn.
o Before the late 1960’s the recognized exceptions were few – exigent circumstances and consent.
o Generally, the justification required was probable cause.
– Modern Search and Seizure Law
o Highly complex and contradictory
o Three changes (Supreme Court decisions) rearranged the doctrinal foundations of search and seizure law
§ Katz v. United States (1967)
· The Supreme Court redefined the basic conceptual framework for deciding whether the government had engaged in a “search” that is subject to constitutional limitations.
o The 4th Amendment protects people, not places
· Court moved away from concepts of protected physical spaces and toward concepts of individual property, making property law relevant but not determinative.
§ Terry v. Ohio (1968)
· Recognized that standards other than

as no indication that he was actually drunk. If he had been driving suspiciously, it would have been fine.
§ Dissent, Collins: This was at 1:30 in the morning in a place where several complaints of theft had been registered, and it was objectively reasonable for the cop to believe he consumed more than one beer.
o State v. David Dean (Me. 1994)
§ Facts: Defendant was in a new residential development, on a dead-end street, that was uninhabited during weekdays in the middle of the night and there had been a number of complaints about vandalism. The officer stopped him solely because of his presence at that particular place and time. The District court ruled that Sampson had the necessary “reasonable suspicion to justify the stop.” Dean was discovered to be intoxicated, so the stop was longer than a brief investigatory stop.
§ Rules: A person’s mere presence in a high-crime area does not justify an investigatory stop
§ Holding: The combination of criminal activity with other articulable facts – the time of date and the fact that the area was uninhabited – created a reasonable suspicion, so the stop was justified.
· Note, not a huge social cost when it is a relatively unintrusive stop.
o Ornelas v. United States (U.S. 1996)
§ Supreme Court held that appellate courts would determine for themselves, under a de novo standard, the presence of absence of reasonable suspicion. However, the court must give “due weight” to factual inferences drawn from resident judges because they have greater access to evidence.
· This doesn’t really seem like a de novo standard, but they claim it is.
o Alabama v. White (U.S. 1990)
§ Anonymous tips can contribute to a reasonable suspicion finding only if the police can find independent corroboration of “significant details: of the informant’s information (must amount to more than innocent conduct that any person could observe)
o Illinois v. William aka “Sam” Wardlow (U.S. 2000)
§ Facts: Wardlow fled upon seeing police officers patrolling an area known for heavy narcotics trafficking. He had been holding an opaque bag. They caught up to him, and performed a frisk, during which they found a gun and arrested him. The Illinois Supreme Court reversed the conviction, holding that the gun should have been suppressed because there was no reasonable suspicion.
§ Rules:
· An officer may, consistent with the 4th Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.
· The 4th Amendment requires at least a minimal level of objective justification for making the stop – must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.
· An individual’s presence in an area of expected criminal activity alone is not enough to support reasonable, particularized suspicion that the person is committing a crime.
· Any refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for detention or seizure.
o However, unprovoked flight is not simply a mere refusal to cooperate.
§ Holding: Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and therefore in investigating further. No violation of the 4th amendment.
§ Principles Established: Unprovoked flight is a strong basis for suspicion.
§ Dissent, Stevens:
· Court wisely endorses no per se rule – Illinois wants a bright line rule authorizing the temporary detention of anyone who flees at the sight of a police officer, while defendant wants the fact that personal flees to never be sufficient, alone, to justify a temporary stop.
· There was not reasonable suspicion to make the stop here – many innocent people flee as well for many reasons, especially in high-crime areas
o California v. Hodari (U.S. 1991)
§ Officer chased a fleeing suspect, who discarded a small rock as he was being chased. The officer tackled him and handcuffed him, and later identified the rock as crack cocaine. The court held that there was no “stop” until the officer tackled him – the pursuit by the officer was not sufficient.
– Notes
o A strong majority of state courts have decided that flight contributes to reasonable suspicion, but few cases arise in which flight alone is the basis for a claim of reasonable suspicion
§ About 30 states do not consider chasing a seizure, no seizure until you tackle.
§ About 20 states insist that pursuit might sometimes qualify as a seizure.
iii. Pretextual Stops
– Cases
o Whren v. U.S. (U.S. 1996) – Whren Stops – traffic stops based on reasonable suspicion of a traffic violation, but intended to further the investigation of some other crime, are Constitutional.
§ 40 states now follow the Whren decision (saying pretextual stops are compliant with federal and state constitutions), but a few states disagree, including Washington:
· State v. Ladson (Wash. 1999) – Washington Supreme Court called pretextual stops a triumphs of form over substance and worried that approving such searches would mean that nearly every citizen would be subject to a Terry stop simply because he or she is in her car.
o The court adopted a totality of the circumstances approach to determine whether the stop is pretextual.
It is very difficult for the states to monitor this