“ copyright © allyn & bacon 2008 criminal evidence chapter six: warrantless arrests and...

“Copyright © Allyn & Bacon 2008 “Copyright © Allyn & Bacon 2008

Criminal EvidenceCriminal EvidenceCriminal EvidenceCriminal Evidence

Chapter Six: Chapter Six: Warrantless Arrests and

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Investigative DetentionInvestigative Detention

During During Investigative stops (Investigative stops (TerryTerry stops) stops): : When an officer has a “reasonable When an officer has a “reasonable suspicion” to believe that the individual suspicion” to believe that the individual has either (1) committed, (2) is committing, has either (1) committed, (2) is committing, or (3) will commit a crime, an arrest or (3) will commit a crime, an arrest warrant is not be necessary. warrant is not be necessary.


Seizures and Investigative DetentionsSeizures and Investigative Detentions

Officers may conduct Officers may conduct protective searches protective searches of individuals during investigative of individuals during investigative detentions. (Weapons) detentions. (Weapons) stop-and-frisksstop-and-frisks are for the individual safety of are for the individual safety of

police officers (as well as the suspects). police officers (as well as the suspects).


Plain View Plain View

Evidence which was in Evidence which was in plain viewplain view may be may be admissible in court if: (1)officer was in a admissible in court if: (1)officer was in a lawful position; (2) discovery was lawful position; (2) discovery was inadvertent; (3) and evidentiary value of inadvertent; (3) and evidentiary value of the item was immediately apparent the item was immediately apparent (recognize the criminality). (recognize the criminality).


““Plain Feel” DoctrinePlain Feel” Doctrine

Some courts have attempted to extend Some courts have attempted to extend “plain view” to include a “plain feel”, (i.e. “plain view” to include a “plain feel”, (i.e. evidence discovered during pat down evidence discovered during pat down searches). searches).

Apparent to the touch (recognize the Apparent to the touch (recognize the criminality). criminality).


Incident to Arrest Incident to Arrest Time period Time period incident to arrestincident to arrest includes includes

period immediately prior to the seizure of period immediately prior to the seizure of the individual in question and immediately the individual in question and immediately prior to the formal arrest. prior to the formal arrest.

During this period, evidence seized may During this period, evidence seized may be admissible.be admissible. Based on safety concerns for officers safety Based on safety concerns for officers safety

“arms reach” (Chimel).“arms reach” (Chimel).


Automobile Searches Automobile Searches Warrantless, roadside searches of motor Warrantless, roadside searches of motor

vehicles are permitted if there is “probable cause vehicles are permitted if there is “probable cause to believe” that evidence of criminal activity or to believe” that evidence of criminal activity or criminal contraband is contained therein. criminal contraband is contained therein. CarrollCarroll doctrine: doctrine: Vehicles are mobile. (Evidence can drive away.)

Arizona v. Gant: Search of passenger compartment of a car incident to arrest is NOT automatic. (Must be able to articulate suspicion of criminal activity / crime.)


Automobile Searches – cont. Automobile Searches – cont. Closed Containers and Vehicles: Some Closed Containers and Vehicles: Some

courts have upheld searches of locked, courts have upheld searches of locked, secure containers like luggage while secure containers like luggage while others courts have disallowed. others courts have disallowed.

Inventory of AutomobilesInventory of Automobiles: Not a “search” : Not a “search” Conducted by law enforcement personnel Conducted by law enforcement personnel of an individual’s personal belongings in of an individual’s personal belongings in accordance with a dept. policy. (Liability accordance with a dept. policy. (Liability for contents.) for contents.)

Generally allowable when car impounded.Generally allowable when car impounded.


Consent Consent

Consent: Suspect voluntarily consents to Consent: Suspect voluntarily consents to search or seizure. search or seizure.

Probable cause, reasonable suspicion, or Probable cause, reasonable suspicion, or an articulable justification is not required.an articulable justification is not required.

Consent must be knowing and voluntarily. Consent must be knowing and voluntarily.


Consent Consent

Consent must be:Consent must be: voluntaryvoluntary

look at “totality of circumstances”look at “totality of circumstances” of of scopescope that includes search that includes search legitimatelegitimate

In some cases, third party (e.g. spouse, room In some cases, third party (e.g. spouse, room mate, baby sitter,) can give consent. mate, baby sitter,) can give consent.


Administrative Justifications and Administrative Justifications and Special Needs of Govt.Special Needs of Govt.

Inventory searches: Inventory searches: may be conducted on may be conducted on automobiles and individuals under arrest.automobiles and individuals under arrest. Designed to protect the owner from loss or Designed to protect the owner from loss or

theft while the property is under the control of theft while the property is under the control of law enforcement authorities.law enforcement authorities.

In practice, however, they are often used to In practice, however, they are often used to search for criminal evidence or contraband. search for criminal evidence or contraband. (Where to make an enforcement stop.) (Where to make an enforcement stop.)


Administrative Justifications and Administrative Justifications and Special Needs of Govt. – cont.Special Needs of Govt. – cont.

Building, Home and Business InspectionsBuilding, Home and Business Inspections: : Traditionally, health, welfare, and structural Traditionally, health, welfare, and structural inspections of private residences were permitted inspections of private residences were permitted as it was rationalized that such were necessary as it was rationalized that such were necessary for the betterment of the wellness of the for the betterment of the wellness of the communitycommunity.. overturned by courtsoverturned by courts ““Regulated business” exception Regulated business” exception (Licenses) (Licenses)



CheckpointsCheckpoints: not all warrantless : not all warrantless checkpoints have been permissible but checkpoints have been permissible but others have been allowed:others have been allowed: border, drunk driving, and drug interdiction, border, drunk driving, and drug interdiction,

seatbelt and child safety seat enforcement, seatbelt and child safety seat enforcement, license and insurance are allowed. license and insurance are allowed.



Public school administrators and public Public school administrators and public employersemployers may conduct searches for may conduct searches for disciplinary purposes even if probable disciplinary purposes even if probable cause is lacking on public grounds and of cause is lacking on public grounds and of employees and students of involved employees and students of involved employer / school dist. property employer / school dist. property equipment. (No right of privacy) equipment. (No right of privacy)

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