criminal procedure - rcc administration of justice · joel samaha wadsworth publishing. stop and...

CriminalProcedure

9th Edition Joel Samaha

Wadsworth Publishing

StopandFriskChapter 4

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ThePowertoStopThe power to stop and question suspicious persons is ancient, but it was questioned during the due process revolution of the 1960s.

O  Some people argued that �outsiders� needed protection from police and their right to stop and arrest.

O  Police argued that until they made an arrest, their good judgment, based on their professional experience, was good enough.


FourthAmendmentStopsandFrisks

Fourth Amendment stops are brief detentions that allow police to briefly

freeze and investigate suspicious situations.

Fourth Amendment frisks are �once-over-lightly� pat downs of the outer clothing done to protect officers by taking away suspects� weapons.


The greater the invasion, the greater the objective basis required by the Constitution to back it up.

O  Officers need to prove fewer suspicious facts and circumstances to back up stops and frisks than they do for arrests and full-blown searches.

O  The public visibility of stop and frisks shapes public opinion of police power.

Stop and Frisks


StopandFriskLawStop and frisk law follows a slight alteration of the three-step analysis used to decide whether an officer�s action was a search:

1.  Was the officer�s action a stop or a frisk? 2.  If the officer�s action was a stop or a frisk, was it

unreasonable? 3.  If the stop or frisk was unreasonable, should

evidence obtained during the stop and/or frisk be excluded from legal proceedings against the defendants?


ReasonableSuspicion?Police officer at a convenience store/gas station at 2:30 a.m. sees two women (ages 22 and 23) come into station, buy items. As they walk by, he smells strong odor of alcohol. When they return to car he goes to it and asks driver to do sobriety tests – and driver arrested. But, there was no reasonable suspicion…because both women had passed by him together, he did not know who the odor of alcohol came from – no reasonable suspicion for the stop. See Wisconsin v. Meye.


Reasonableness clause: �The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.� Warrant clause: �…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.�

Fourth Amendment Clauses


Until the 1960s, the U.S. Supreme Court followed the conventional approach, which said the two clauses were firmly connected. In the 1960s, the Court changed to a reasonableness approach, indicating the two clauses address separate issues.

Fourth Amendment Clauses


SearchesandtheTrespassDoctrine

Until 1967, the U.S. Supreme Court defined searches according to the trespass doctrine. This meant that officers had to physically invade a �constitutionally protected area,� such as:

O  Persons O  Houses O  Papers O  Effects


TheConventionalFourthAmendmentApproach

In interpreting the Fourth Amendment, the U.S. Supreme Court followed the conventional Fourth Amendment approach until the 1960s.

O  Warrant and reasonableness clauses are firmly connected.

O  The only �reasonable� search and seizures are with a warrant.


TheReasonablenessFourthAmendmentApproach

In the 1960s, the Court shifted to the reasonableness Fourth Amendment approach.

O  Warrant and reasonableness clauses are separate and address different issues.

O  The warrant clause only comes into play in those cases where a warrant was obtained.

O  Not every search requires probable cause. O  Not every search needs a warrant.


Most searches and seizures are warrantless. These must pass the reasonableness test. This requires the government to prove:

1.  Balancing element: The need to search and/or seize outweighs the invasion of liberty and privacy rights of the individuals.

2.  Objective basis: There are enough facts and circumstances to back up the search and/or seizure.

The Reasonableness Test


Case-by-CaseAnalysis

Courts must decide whether searches and seizures are reasonable on a case-by-case basis.

O  They apply the totality-of-circumstances approach to each case.

O  Some searches and seizures require individualized suspicion, suspicion that points to a specific individual.


PracticalityofStopandFrisk

Today�s stop and frisk laws grew out of the practical problems police officers face in preventing and investigating crime in public places. Usually, officers deal with people they don�t know and probably won�t ever see again. Officers must rely on their professional training.


Terryv.OhioandStopandFrisk

Stop and frisks are �minor� searches and seizures and require fewer facts to back them up than they would need to arrest and search.

O  Police can briefly �freeze� a situation to investigate criminal activity that �may be afoot.�

O  Police stops and frisks must be reasonable: O  The need to control crime outweighs intrusions on the

individual�s rights. O  Actions must be backed up with facts.


Police-IndividualContactsVoluntary Encounters

Willing contacts without physical force or intimidation

Fourth Amendment does not apply

Stops Brief (usually minutes), on the spot detentions that require reasonable suspicion to back them up

Fourth Amendment applies

Arrests Longer detentions (hours or a few days) in police stations that require probable cause to back them up

Fourth Amendment applies


StopsandtheFourthAmendment

Police stops must be reasonable in the totality of circumstances surrounding

the stop: O Does the objective basis for the stop add up to

reasonable suspicion? O Are the requirements of the �scope of the stop� met?

O The duration is short. O The location of the investigation is at the scene of the stop.


ReasonableSuspiciontoBackUpStops

Stops must be based on reasonable suspicion supported by articulable facts that lead an officer to believe that criminal activity may be afoot. This is assessed through the totality-of facts-and-circumstances test (the whole picture test).


BuildingReasonableSuspicion

Information that officers can rely on to build reasonable suspicion comprises two types:

1.  Direct information—facts and circumstances officers learn firsthand.

2.  Hearsay information—facts and circumstances officers learn secondhand from victims, witnesses, other police officers, and anonymous, professional, or paid informants.


AdditionalSourcesforBuildingReasonableSuspicionThere are additional sources of information that can be used to back up reasonable suspicion:

1.  Individualized suspicion-consists of facts and circumstances that point to specific individuals.

2.  Categorical suspicion-refers to suspicion that falls on suspects because they fit into a broad category of people such as a particular race or ethnicity.


Categorical suspicion must be coupled with individualized suspicion in order to establish reasonable suspicion.

Categorical Suspicion


LocationofStopWhere you are stopped can make a difference as to whether or not it is valid. It is easier to make a stop in a �high crime� neighborhood, or an area �known for drug trafficking.� This is typically as designated by the police, but some courts do require more.


TheScopeofReasonableStops

Reasonable stops have two elements: 1.  Short duration—no specific time limit, but must be

reasonable 2.  �On the spot� investigation—an officer may move

suspects a short distance, but generally investigation into the possible criminal activity must occur where the officers made the stop


VehicleStopsWithout any reason to suspect, a police officer is always allowed to order the driver of a stopped vehicle out of the car…this is a �trivial invasion� as the driver has already been stopped. And, to protect officers� safety, passengers in the vehicle can also be ordered to get out (Maryland v. Wilson). To further protect their safety, officers may also frisk drivers and passengers of stopped vehicles (Arizona v. Johnson).


Frisks are not done to find evidence; they are done to protect officers� safety. Frisks are the least invasive Fourth Amendment searches, but that is NOT to say that they are not an invasion of privacy at all. Reasonableness depends on balancing the government�s interest in law enforcement against an individual�s right to privacy.

Frisks and the Fourth Amendment

KEY CASE

Frisks and the Fourth Amendment

And, as seen in Terry v. Ohio, there are two elements that make a frisk a reasonable Fourth Amendment search:

1.  The officer has made a lawful Fourth Amendment stop before she frisks a suspect.

2.  The officer reasonably suspects that the stopped suspect is armed and dangerous.


A lawful search has three elements:

1.  A lawful stop 2.  Reasonable suspicion that the suspect is armed 3.  A once-over-lightly pat down of outer clothing to

detect weapons

Elements of Lawful Searches


BeyondOnce-Over-Lightly

Some searches go beyond a once-over lightly pat down, for example:

O  Suspect is wearing bulky clothing (like a winter coat) O  Officer feels a hard object that could be a weapon

and reaches in a pocket to remove it


Officers who find non-weapon contraband (like drugs) during a legal frisk can seize it. A frisk for weapons cannot be a pre-text for a search for other evidence.

Finding Non-Weapon Contraband


SpecialSituationsStopsandFrisks

Some situations allow for additional measures to be taken during stops.

O  Officers can order pulled-over suspects to get out of their cars where their actions can be more easily viewed.

O  The government can detain and frisk people at borders without reasonable suspicion because of national security interests.

O  Roadblock inspections can be done without individualized suspicion as long as vehicles are systematically chosen.

criminal procedure - rcc administration of justice · joel samaha wadsworth publishing. stop and...

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