Outline – Criminal Procedure
Professor Halushka,
Cooley Law School
Seizure
Seizure & Search of Person
“Stop and Frisk” is OK – Terry v Ohio
i. Scope of Seizure/search:
1. Must be for a weapon
2. Can ask identifying questions (Hibel v 6th Judic)
ii. Completion of Search: MN v Dickerson
1. Once the officer is satisfied that an object in the suspect’s pocket is not a weapon, then the officer may not continue the tactile examination of it in an effort to ascertain whether it is otherwise incriminating.
2. Must it be completed in certain period of time? US v Sharpe
iii. Basis for search: Detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. (US v Cortez)
1. Yes: Drug profiling (US v Sokolow)
2. No: Racial profiling (Sibron v NY)
3. No: Mere presence around drug dealers (Sibron v NY?)
4. Yes: Unprovoked headlong flight in high crime area. (IL v Wardlow)
5. Depends: Justified based on past criminal history? Must use Hensley test (US v Hensley):
a. Step 1
b. Step 2
iv. Type of information that can form a proper basis:
1. Informant’s tip? (Adams v Williams)
v. Immediacy of search:
1. If reasonable suspicion, is frisk allowed immediately?
2.
Amount of suspect’s awareness necessary: Florida v Bostick
i. Would a reasonable person feel free to decline officers’ requests or to otherwise terminate the encounter?
When pursuit of suspect constitutes seizure (CA v Hodari D)
i. A seizure requires either physical force…or, where that is absent, submission to the assertion of authority
Terry extends to Auto passenger compartments, of legally stopped vehicles, for weapons (MI v Long)
Terry extends to protective sweep of home (MD v Buie)
Order someone out of car? PA v Mimms
Seizures Short of an Arrest
Must be reasonable
Minor League Search or Seizure
i. Terry Type
1. Person suspected of criminal activity
2. Passenger compt of legally stopped car
3. Protective sweep of home
4. Can order someone outside of ca
Facts/underlying circumstances
d. Details of tip
e. Corroboration
f. Can be based on hearsay (AL v White)
g. Tipster’s motive to lie can be factor in PC determination (MA v Upton)
h. Anonymous Tip ok, if suitably corroborated
3. Can have PC that a person either solely or jointly committed a crim (MD v Pringle)
iii. Warrants:
1. Anticipatory search warrants OK (US v Grubbs)
2. Under limited circumstances, Defendant can attack facially valid warrant after search has occurred (Franks v DE)
3. Requirements to Issue Search Warrant:
a. Neutral and Detached Magistrate
b. Particularly describe the place to be searched, and the person or things to be seized
4. Requirements to Execute Search Warrant:
a. Must abide by the terms of the warrant
i. Time of execution
ii. Where they can search
iii. What can be seized
b. Knock and Announce
Note limitations
