Michelle PalaroCJUS 2360Fall 2015

A Foundation for Understanding Constitutional Law

Chapter 8Conducting

Constitutional Seizures

Seizure The elements of the seizure are:

o Intending to seize an object (includes a person)

o Exercising authority to do soo Physically controlling the object, ando The understanding of what is happening such

that a reasonable person would not feel free to leave

Brower v. County of Inyo , 489 U.S. 593(1989)

Facts:  Brower was killed when the stolen car that he had been driving at high speeds for approximately 20 miles in an effort to elude pursuing police crashed into a police roadblock

Issues: Whether police used “brutal, excessive, unreasonable and unnecessary physical force” in establishing the roadblock, and thus effected an unreasonable seizure of Brower, in violation of the Fourth Amendment

Holding: No Rationale: Under the Fourth Amendment, a person is seized

when his freedom of movement is intentionally terminated. The court ruled that the defendant was not seized by the police setting the roadblock and he only became seized under the meaning of the Fourth Amendment when he actually crashed into the tractor trailer

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=489&invol=593

Intensity and Scope of a Seizure:Stop and Arrest Compared

Law enforcement involves decisions and discretion

What begins as a simple stop may turn into an arrest and a full body search

A stop is considered different than an arresto Terry v. Ohio established that the authority to

stop is independent of the power to arresto A stop is not an arrest, but it is a seizure

within the meaning of the 4th Amendment and requires reasonableness

Stop versus Arrest

Investigatory Stops If an officer suspects a person is presently armed

and dangerous, a frisk may conducted without a warrant

A frisk is authorized by the circumstances of an investigative stop, only a limited pat-down of the detainee’s outer clothing for the officer’s safety is authorized

Factors contributing to the decision to frisk include: Suspect that flees A bulge in the clothing Suspect’s hand concealed in a pocket Being in a known high crime area and suspect

crime would likely involve a weapon

Vehicle Stops Officers may stop motorists:

o For violations of the law such as equipment violations, erratic driving, and invalid vehicle registration

o And when an occupant inside the vehicle is suspected of having committed a crime

Delaware v. Prouse , 440 U.S. 648 (1979)

Delaware v. Prouse , 440 U.S. 648 (1979), cont’d

Facts: Police stopped a car without probable cause to check the driver’s license and auto registration

Issues: Did the officer's search of Prouse's automobile constitute an unreasonable search and seizure under the Fourth Amendment?

Holding: Yes Rationale: The Court held that the privacy

interests of travelers outweighed the state interests in discretionary spot checks of automobiles

Berkemer v. McCarty, 468 U.S. 420 (1984)

Facts: After stopping a driver suspected of DUI, the officer asked McCarty to get out of the car and he could not stand up. The officer decided he would be charged with DUI and asked if McCarty had been drinking. He said he had and was arrested

Issues: Was Miranda required? Holding: No Rationale: A person temporarily detained

pursuant to a traffic stop is not in custody for purposes of Miranda and the brief detention occurs in public

http://en.wikipedia.org/wiki/Berkemer_v._McCarty

United States v. Pavelski , 789 F.2d 485 (1986)

Facts: Pavelski was convicted of armed robbery after a police officer stopped his car for a sharp right turn and out of state plates

Issues: Was there sufficient reasonable suspicion to justify the stop?

Holding: No Rationale: In the totality of circumstances test, the

standard of proof is less than reasonable belief or probable cause. However, it must be more than a mere hunch or even general suspicion and cannot be a “fishing expedition” based on a whim or a “gut feeling things were really wrong”

http://www.leagle.com/decision/19861274789F2d485_11198.xml/UNITED%20STATES%20v.%20PAVELSKI

Length of Stop United States v. Sharpe (1985)

o How long a stop may last depends on factors that indicate the suspect was not detained an unreasonably long time• The purpose of the stop• The reasonableness of the time used for the

investigation that the officers wish to conduct• The reasonableness of the means of

investigation used by the officer• http://www.casebriefs.com/blog/law/criminal-procedure/cr

iminal-procedure-keyed-to-weinreb/the-fourth-amendment-arrest-and-search-and-seizure/united-states-v-sharpe/

Arrest Defined The detention of an individual The taking of a person into custody, in a manner

authorized by law, for the purpose of presenting that person before a magistrate to answer for the commission of a crime

The general guideline is that a person is under arrest if a reasonable person would believe that under the existing circumstances and when viewed objectively, there was a restraint on movement that one associates with formal arrest and that the person was, in fact, been detained by the police and not free to go

The Elements of an Arrest

The elements of an arrest are:1. Intending to take a person into custody2. Exercising authority to do so3. Detaining or restraining the person to

be arrested, and4. The arrestee understanding what is

happening

Lawful Arrests Generally, lawful arrests can be

made in one of three ways Officers can usually make a lawful

arresto For any crime committed in their

presenceo For any felony if they have probable

causeo With an arrest warrant

Where Arrests May Be Made

They can be made in public places without a warrant if probable cause exists

Even if a person retreats to a private place, the warrantless arrest based on probable cause is valid

Payton v. New York (1980)o Police may not enter a private home to make

a routine felony arrest unless exigent circumstances exists, as in hot pursuit

o http://en.wikipedia.org/wiki/Payton_v._New_York

Use of Force in Searching an Arrested Person

When government agents search a person incident to arrest, they may use as much force as reasonably necessary to Protect themselves, To prevent escape, Or the destruction or concealment of evidence

The reasonableness of the police action determines the lawfulness of it

Use of Force in Arrest Legitimate use of force in arrests includes:

o Self-defense (a right common to all persons)o Defense of others (a duty assigned to police personnel)o Effectuate an arrest (a vested authority granted by law)o Prevent an escape (a vested authority granted by law)o Overcome resistance (a vested authority granted by

law) Generally, the police have the authority to use

force if necessary to make an arrest, keep the peace, or maintain ordero The amount of force must be reasonable

Tasers The use of a TASER might be considered

unreasonable excessive force if the subject is neither a flight risk, a dangerous felon nor an immediate threat

The Court will apply an objective reasonableness standard to the officer’s conduct

Deadly Force The only justification for use of

deadly force is self-defense or protecting the lives of others

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable

Tennessee v. Garner (1985)

Tennessee v. Garner (1985), cont’d

Facts: A 15-year-old boy was shot in the back of the head and killed as he began climbing over a fence after being told to stop by police responding to a prowler call

Issues: Can deadly force be used to apprehend a fleeing, nonviolent felon?

Holding: No Rationale: Deadly force is not justified when

the fleeing felon presents no immediate danger to the officer or to others. A police officer may not seize an unarmed, non-dangerous felony suspect through the use of deadly force

Immunity from Arrest Certain classifications of people have immunity

from arrest because of federal or state statutes Foreign diplomats, including ambassadors,

ministers, their assistants and attachés have complete immunity from arrest

Many states have granted their legislatures immunity from civil lawsuits

Officers who use reasonable force in a lawful manner are also immune from arrest because their actions do not violate the law. However, officers who use excessive force can be subject to criminal or civil sanctions