Select Page

Criminal Procedure: Investigation
University of Toledo School of Law
Carr, James G.

Judge James Carr

Criminal Procedure – Investigations

Fall 2010

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 emergency aid from an officer

An exigent circumstances exception to the general rule that officers may not conduct a home search without a warrant

Dube: officers accompany landlord and find feces on the walls; what the officers observed in plain view during the landlord inspection not violative, in caretaker capacity; but could not stay and collect add’l evidence without valid warrant


1) Officer must have reasonable grounds to believe that is an immediate need to act in order to protect lives

2) Some reasonable basis for associating an emergency with the location


South Dakota v. Opperman

A ROUTINE vehicle search of a lawfully impounded vehicle to create an “administrative inventory” does NOT require a warrant/probable cause; not a criminal investigation

Reasonableness Clause test:

protect the police from dangerous items in car

protect the police against claims of stolen property

protect owner’s property while in police custody

Privacy in vehicle not equivalent to privacy in home

Colorado v. Bertine

Obligation of the officer to act in good faith regarding the administrative inventory

An officer should be following established policy and have no real discretion in the matter

I. Fourth Amendment Search and Seizure

a. Constitutional Text

i. Reasonableness Clause

1. “The right of the people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures, shall not be violated”

ii. Warrants Clause

1. “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.”

b. Definition of Seizure

United States v. Mendenhall

1. A constitutional seizure occurs when by an officer’s physical force or show of authority restrains an individual’s freedom of movement

2. Freedom of movement is restrained WHEN a reasonable person would have believed she was not free to leave under the circumstances


i. What would a reasonably objective person believe about the encounter (an innocent person)?

ii. Doesn’t matter what the police subjectively will do if person ends encounter or what the person subjectively believes about her freedom to leave

ii. Scope of Seizure

1. Florida v. Bostick

a. Bus stopped and aisle blocked by officers; though passenger not “free to leave,” no seizure occurred because passenger could have decline luggage search and terminated encounter

2. Brendlin v. California

a. On stopping an automobile, police seize all its occupants (including innocent passengers)

b. No one in the car would objectively feel they are free to terminate the encounter

3. NO SEIZURE so long as police do NOT convey a message that compliance with their requests is required

a. “Reasonable Suspicion” Seizure Standard

i. Investigatory Stops (Terry v. Ohio)

1. An officer can make an investigatory stop in compliance with the Fourth Amendment where the officer has a reasonable suspicion of ongoing criminal activity or a past felony based on specific and articulable facts


b. United States v. Sokolow

i. Requires more than a “mere hunch” but satisfied by likelihood less than probable cause

c. United States v. Cortez

i. Lawfulness of the investigatory stop determined on the totality of the circumstances, including officer’s past experiences

d. Illinois v. Wardlow

i. Officers need not ignore relevant characteristics of neighborhoods, evasiveness or flight

1. But flight, standing alone, not enough to show reasonable suspicion

ii. Reasonable suspicion based on common-sense judgments and inferences about human behavior

1. BUT! Totality of the circumstances a

passenger has reasonable expectation of privacy in luggage in plain view; no expectation that it won’t be seen, handled, but has expectation it won’t be “squeezed” in such a way to detect its contents

4. Texas v. Brown

a. Using a flashlight at nighttime to look into stopped vehicle is lawful under plain view doctrine

5. California v. Greenwood (Trash Pulls)

a. No legitimate expectation of privacy in abandoned trash, other items voluntarily left for 3rd parties to discover


a. Plain view cannot be pretext for an otherwise unlawful seizure; the discovery must be “inadvertent” and “immediately apparent” during an otherwise lawful intrusion

iii. Terry Frisk

1. A police officer with a reasonable suspicion based on specific and articulable facts that a crime occurred or was ongoing may FRISK a suspect for weapons

a. Frisk – a careful exploration of the outer surfaces of a person’s clothing covering her entire body

2. Michigan v. Long

a. If a police officer, during an investigatory stop, has a reasonable suspicion based on the totality of the circumstances (less than specific and articulable facts) that suspect is armed, can initiate a protective search

3. Minnesota v. Dickerson (Plain Feel/Touch Doctrine)

a. If an officer, during a lawful patdown, detects an object that is immediately apparent as contraband, no unlawful seizure occurs

b. immediately apparent à probable cause standard in Ohio

4. Ybarra v. Illinois

a. However, an individual on the premises of a place where a lawful search is carried out has an individualized 4th Amendment protection

b. Cannot be frisked/plain felt without specific probable cause

i. Does presence in a crack house provided probable cause?