THE NATIONAL JUDICIAL COLLEGE

Transcription

1 THE NATIONAL JUDICIAL COLLEGE A DVANCING J USTICE T HROUGH J UDICIAL E DUCATION WHAT IS A SEIZURE? DIVIDER 4 Honorable Joseph A. Grasso, Jr. OBJECTIVES: After this session you will be able to: 1. Describe the relationship between a seizure and a stop in the constitutional sense; 2. Recognize that a stop or seizure does not depend on bringing something to a stop in the physical sense; 3. Differentiate between those stops that implicate the Fourth Amendment and those that do not; and 4. Consider whether labeling an action as a search or as a seizure makes any difference. REQUIRED READING: 6. PAGE 1. Joseph A. Grasso, Jr., The Fourth Amendment: What Is a Seizure in the Constitutional Sense?(Feb. 2010) [NJC Document] Joseph A. Grasso, Jr., What Is a Seizure? (Feb. 2010) [NJC PowerPoint]...15 RECOMMENDED READING: LOCATION 1. Florida v. Bostick, 501 U.S. 429 (1991)...See Resource CD 2. California v. Hodari D., 499 U.S. 621 (1991)...See Resource CD 3. Brendlin v. California, 551 U.S. 249, 127 S.Ct (2007)...See Resource CD 4. Arizona v. Johnson, 555 U.S. 129 S.Ct. 781 (2009)...See Resource CD 5. Commonwealth v. Grandison, 433 Mass. 135, 136, 138, 741 N.E.2d 25 (2001)...See Resource CD Commonwealth v. Sykes, 449 Mass. 308, 867 N.E. 2d 733 (2007)...See Resource CD 7. Commonwealth v. DePeiza, 66 Mass. App. Ct. 398, 848 N.E. 2d 419 (2006)...See Resource CD 8. Commonwealth v. DePeiza, 449 Mass.367, 868 N.E. 2d 90 (2007)... See Resource CD 9. Commonwealth v. Connolly, 454 Mass. 808, 913 N.E.2d 356 (2009)...See Resource CD SI: FOURTH AMENDMENT FOR APPELLATE JUDGES: FOUNDATIONAL PRINCIPLES & SELECTED CURRENT ISSUES MARCH 10-12, 2010 OXFORD, MS WB/KZ

2 THE NATIONAL CENTER FOR JUSTICE AND THE RULE OF LAW AND THE NATIONAL JUDICIAL COLLEGE THE FOURTH AMENDMENT: WHAT IS A SEIZURE IN THE CONSTITUTIONAL SENSE? Hon. Joseph A. Grasso, Jr. Massachusetts Appeals Court March 10-12,

3 Fourth Amendment to the United States Constitution (1791) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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. 1 I. WHAT IS A SEIZURE IN THE CONSTITUTIONAL SENSE? In a seizure, the right at issue is, as applied to the person, the right to be left alone, the right to free movement, the inviolability of the person. As applied to property, the right at issue is a right to possession and uninterrupted use or access to the individual's property. See Soldal v. Cook County, 506 U.S. 546 (1992) (Fourth Amendment protects two expectations of privacy, one involving searches and the other seizures; seizure occurs when there is some meaningful interference with individual's possessory interest). Seizures of persons have generated the most interest in the case law. Most seizures of property are obvious and require little analysis. By contrast, seizures of persons involve an almost infinite set of circumstances in which an interaction between a police officer and a citizen results in a curtailing of the citizen's freedom of movement. "Whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v. Ohio, 392 Mass. 1 (1968). A seizure occurs when there is an arrest, and also well short of formal arrest, when there has been meaningful interference with an individual's freedom of movement. 1 Article 14 of the Massachusetts Declaration of Rights (1780) Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to the civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of the search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws. Part I, Article XIV of the Massachusetts Constitution 1 2

4 II. SEIZURE OF THE PERSON: THE RIGHT TO BE LEFT ALONE A. Look at the Law of Stop and Frisk: the Stop is the "Seizure." Four questions apply to determine the constitutionality of the stop (seizure). Our focus here is primarily on the first of the four questions: What is a stop or seizure in the constitutional sense? 1. What is a stop (seizure) in the constitutional sense? As with a search in the constitutional sense, if the police action does not amount to a "stop in the constitutional sense" there need be no justification for the action. A. Fourth Amendment standard: California v. Hodari D., 499 U.S. 621 (1991) the intentional application of physical force, or a show of authority to which the subject yields. Note the difficulty of distinguishing between complying with a request (which is not a stop) and submitting to a show of authority (which is a stop). B. The Massachusetts Standard: the Mendenhall standard, United States v. Mendenhall, 466 U.S. 544 (1980); Florida v. Bostick, 501 U.S. 429 (1991) the "free to leave" standard: would a reasonable person in the defendant's position feel free to leave. Put differently, would a reasonable person feel free to decline the officer's request or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429 (1991). Again note the difficulty of determining whether an individual's actions are voluntary or the product of the belief that he is not "free to leave" or otherwise terminate the encounter. The free to leave test is "necessarily imprecise," assessing the coercive effect of the police conduct, taken as a whole, on the hypothetical reasonable person. What constitutes a restraint on liberty that would prompt a reasonable person to conclude that he was not free to leave varies not only with the police conduct, but also with the circumstances and setting within which the encounter occurs. The case law focuses on police conduct and factors that evidence a "show of authority" such that a reasonable person would feel compelled to submit. Some bright-line show of authority factors that amount to a stop: --commencement of pursuit following a show of authority blocking of motor vehicle overhead blue lights or wigwags (but not "takedown" or "alley" lights). 2 3

5 siren drawing of a weapon. Consider these hypotheticals. See Commonwealth v. Grandison, 433 Mass. 135, 136, 138, 741 N.E.2d 25 (2001) (use of cruiser's high beams and bright "alley lights" did not constitute a seizure after police followed defendant for purpose of surveillance) ; Commonwealth v. Briand, 71 Mass. App. Ct. 160, , 879 N.E. 2d 1270 (2008), the Appeals Court concluded that the use by the police of white "take down" lights on a cruiser to illuminate an area is different from the use of blue lights, flashers or sirens and does not signal a stop in the constitutional sense. Use of such lights, without more, does not amount to a seizure for constitutional purposes. The Supreme Judicial Court affirmed summarily, sub nom, Commonwealth v. Clark, 452 Mass (2008). See State v. Justesen, 47 P.3d 936, 939 (Utah Ct. App. 2002) (take-down lights used "not as a show of authority, but to illuminate the area"). Compare with the view in Commonwealth v. Sykes, 449 Mass 308, 867 N.E. 2d 733 (2007). See also Commonwealth v. Werner, 73 Mass. App. Ct. 97, , 896 N.E. 2d 45, (2008) (police cruiser with blue lights flashing outside of a bar filled with patrons did not stop the defendant, one of the patrons, because no reasonable person would have interpreted the flashing blue lights outside the bar as restraining every one of the patrons). Other less obvious factors include: authoritarian language or tone of voice. Query: Is the "free to leave" standard nothing other than the reviewing court's expression of its judgment as to whether the police conduct is permissible without need for justification rather than an examination of whether, viewed objectively, a reasonable person would feel "free to leave" in the given circumstances? As Professor Clancy notes: "The real inquiry is whether society is prepared to accept the investigative actions as permissible without justification or whether the actions are so intrusive into a person's right to be secure that they must be labeled a seizure." Clancy, The Fourth Amendment, p So viewed, doesn't the "free to leave" standard for whether a seizure has occurred in the constitutional sense bear a striking similarity to the second prong of the expectation of privacy test: whether society (the court) recognizes the expectation as objectively reasonable? C. Brendlin v. California, 551 U.S. 249, 127 S.Ct (2007). When a police officer makes a traffic stop, the passenger, as well as the driver, is seized within the meaning of the Fourth Amendment and so may challenge the constitutionality of the stop. The stop of the motor vehicle, at least at the outset, 3 4

6 amounts to a stop of the passenger. Whether further detention of passenger is permissible depends on the specific facts of the encounter. "When the actions of the police do not show an unambiguous intent to restrain or when an individual's submission to a show of governmental authority takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not." That test, in the view of Brendlin, is the Mendenhall test. Hypothetical Brendlin v. California, 551 U.S. 249, 127 S. Ct (2007) Brendlin does not change the Hodari D. standard back to that of Mendenhall. Rather, Brendlin appears to stand for the broad proposition that a stop of a motor vehicle, at least at the outset, amounts to a stop of both the driver and passenger, which either may challenge. Whether further detention of the passenger is permissible then depends on the specific facts of the encounter. Brendlin appears to conclude that the show of authority involved in stopping a motor vehicle amounts to a stop of both the driver and the passenger because a reasonable individual in the position of the passenger would not feel free to leave, thereby amounting to a submission to authority. "We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission." Because a passenger is also stopped by the initial stop of the vehicle, he may contest the legality of the stop just as the driver may. The government must then justify the initial stop of the vehicle and any further detention of the passenger. Brendlin is curious in this respect: it does not suggest that there must be particularized suspicion of criminal activity regarding the passenger in order to stop the vehicle. Particularized suspicion regarding the driver or his operation suffices to stop the vehicle. That the passenger is also stopped by that action is serendipitous and requires no justification except to the extent that the officer then focuses on the passenger. To the extent that the detention is prolonged beyond what justified the stop of the driver (or its sequellae) in order to focus on the passenger, there must be particularized suspicion as to the passenger. See Arizona v. Johnson, 555 U.S. 129 S.Ct. 781 (2009). Johnson appears to cabin some of the expansive language of Brendlin. Johnson holds that "in a traffic-stop setting, the first Terry condition a lawful investigatory stop is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not, in addition, have cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonable 4 5

7 suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." Points to be taken from Johnson: (1) Johnson makes explicit that the true import of Brendlin is as a "standing" case. Because a passenger is seized at the same moment the driver is, a passenger may challenge the constitutionality of the stop of the vehicle. (2) Johnson also makes explicit that a passenger is not "free to leave" until the purpose of original motor vehicle stop has concluded. "[The officer] surely was not constitutionally required to give Johnson an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her." "The temporary seizure of the driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop." --A reasonable passenger would understand that during the time a car is lawfully stopped, he or she is not free to terminate the encounter at will. "An officer's inquiries into matters unrelated to the justification for the traffic stop... do not convert the encounter into something other than a lawful seizure, so long as the inquiries do not measurably extend the stop's duration." 2. When did the stop (seizure) occur? Defining the moment of constitutional significance is important because we "freeze" the facts to determine whether at that point the police had "reasonable suspicion" based on "specific and articulable facts" that a crime has been, is being, or is about to be committed. Facts developed after the stop in the constitutional sense may contribute to elevating the suspicion or to developing probable cause to arrest, but may not be used to justify the stop in the first instance. Commonwealth v. Isaiah I., 450 Mass. 818, , 882 N.E. 2d 328, (2008) (juvenile not seized when police decided to stop him or when they followed him into store, but when officer confronted him and ordered him not to move); Commonwealth v. Lopez, 451 Mass. 608, , 887 N.E. 2d 1065, (2008) (no stop in constitutional sense where uniformed officer asked, "Can I speak with you?", and second officer stepped out of cruiser and approached the defendant without physically blocking him because a question requests an answer and is not ordinarily an order, which demands obedience). 5 6

8 3. What are the grounds for the stop (seizure)? Is there reasonable suspicion? 4. What is the scope of the stop (seizure)? Police may take reasonable steps to confirm or dispel the suspicion. Principle of proportionality. Is the scope of the intrusion proportional to the degree of suspicion in space, time, and level of intrusiveness? Have the police gone so far as to make an arrest for which probable cause (rather than reasonable suspicion) is the requisite? B. The Pat Frisk Is the "Search" Four analogous questions determine the constitutionality of the frisk (search) 1. Was there a frisk? 2. When did it occur? 3. What are the grounds for the frisk? 4. What is the scope of the frisk? A stop requires reasonable suspicion of criminal activity; a frisk requires reasonable apprehension of danger to the police or others. It bears repeating that not all stops justify a frisk; a frisk may occur whenever police have a reasonable apprehension of danger to themselves or others, and a frisk only permits a search for weapons, not for evidence of a crime. Protective frisk (search) of the interior of a seized vehicle. See Commonwealth v. Santiago, 53 Mass. App. Ct. 567, 571, 760 N.E. 2d 800, 804 (2002). Terry stops frequently terminate with the release of the suspect. Where police have reasonable apprehension of danger regarding an individual who has been ordered from the vehicle for purposes of a frisk, they are not required to risk becoming a victim upon the suspect's return to the vehicle. Accordingly, a frisk of the passenger compartment of the vehicle and the glove box is permissible. III. CASES INVOLVING SEIZURES OF THE PERSON 1. Street Encounters "Not every encounter between a police officer and a citizen is an intrusion requiring an objective justification." Terry v. Ohio, 392 U.S. at 13. Merely approaching a citizen and posing questions is not a seizure. Police may walk up to a citizen and request to converse 6 7

9 or request information and there is no stop in the constitutional sense without more than the request itself. A field encounter is not a constitutional stop. See Commonwealth v. Stoute, 422 Mass. 782, , 665 N.E. 2d 93, (1996). Commonwealth v. Rock, 429 Mass. 609, , 710 N.E. 2d 595, (1999). Following two suspects in an unmarked cruiser (even the wrong way on a one way street), identifying themselves as police and asking "Guys, can I talk to you for a second" does not constitute a seizure in the constitutional sense. Commonwealth v. DePeiza, 66 Mass. App. Ct. 398, 848 N.E. 2d 419 (2006); reversed in 449 Mass. 367, 868 N.E. 2d 90 ( 2007). Compare the approaches of the Appeals Court and the Supreme Judicial Court to these cases. Both hold that the initial police action did not amount to a stop in the constitutional sense barely. The Appeals Court and Supreme Judicial Court opinions diverge at the point where the pat-frisk took place. The Appeals Court concluded that at that point the police had neither a reasonable suspicion of criminal activity involving violence nor a reasonable apprehension of danger to justify a frisk. To the contrary, the Supreme Judicial Court ruled that the police had a reasonable suspicion of criminal activity that justified a frisk for weapons. 2. The FIO (Field Interrogation Observation) The "field interrogation observation" is a procedure in which police approach individuals on the street, ask them to identify themselves and give their date of birth, record a physical description of the individual (height, weight, tattoos) and take a photograph. See Commonwealth v. Thinh Van Cao, 419 Mass. 383, , 644 N.E. 2d 1294, (1996) (because the individuals approached are free to decline, there is no stop in the constitutional sense) Compare Commonwealth v. Thomas, 429 Mass. 403, , 708 N.E. 2d 669, (1999), and Commonwealth v. Murphy, 63 Mass. App. Ct. 11, 18, 822 N.E. 2d 320, (2005). The label is unimportant. The critical inquiry is whether, from an objective view of the facts, a reasonable person would feel free to leave. 3. Community Caretaking: An Exception That Swallows the Rule If Misapplied Is the police action, objectively viewed, a public service duty unrelated to criminal law enforcement (designed to forestall harm to an individual or the public)? Or is it related to the criminal investigative function? In principal, community caretaking functions must be totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal law. In practice, it is not always so. For a case representing the almost imperceptible blending of community caretaking into criminal investigation, see Commonwealth v. McDevitt, 57 Mass. App. Ct. 733, 786 N.E. 2d 404 (2004). 7 8

10 4. Automobile Stops The requisite for a proper stop is whether there exists reasonable suspicion that a crime has been, is being, or is about to be committed. In this context, an observed civil motor vehicle infraction provides a lawful basis for conducting a stop. See Commonwealth v. Santana, 420 Mass. 205, 207, 649 N.E. 2d 717 (1995). It is clear, however, that a routine motor vehicle stop for a civil motor vehicle infraction or a criminal infraction not involving violence is different in kind from a motor vehicle stop made upon suspicion of criminal activity involving violence. See Commonwealth v. Torres, 433 Mass. 669, 674 n.5, 745 N.E. 2d 945 (2001). Routine motor vehicle stops permit the police to identify the operator and write the citation. The police must then terminate the encounter unless other reasonable suspicion arises in the course of the stop. furtive gestures; drug sniffing dogs. Non routine motor vehicle stops, e.g. stops of motor vehicle suspected in crimes of violence, permit the police to do much further. They may take any action that is reasonable and proportional to the degree of suspicion that supports the initial intrusion. Once the stop occurs, the facts are frozen" for purposes of justifying the stop itself. But the facts are not frozen insofar as developing further suspicion of criminal activity. The analysis then turns to whether the police conduct during the stop was reasonably related in scope to the circumstances justifying the initial intrusion. The actions of the police during the stop must be proportional to the grounds that support the stop. Under the principle of proportionality, the degree of suspicion must be measured against the level of intrusiveness in time, space and force used by the police to confirm or dispel the suspicion that justified the stop. When police possess reasonable suspicion that an individual has committed a crime of violence involving a firearm or other weapon, there is no question that in addition to conducting a stop, the police may also conduct a frisk. See, e.g. Commonwealth v. Barbosa, 49 Mass. App. Ct. 344, 729 N. E. 2d 650 (2000) (where reported robbery involved a firearm, the police, as a matter of reasonable precaution, were entitled to frisk the occupants of the car). The mere possession of a firearm is not illegal. However, when police possess reason to believe that an individual possesses a firearm and that he is younger than the legal age at which a firearm license could be obtained, they have a reasonable basis to conclude that he is violating the law and may stop and frisk him. See Commonwealth v. Costa, 448 Mass. 510, 862 N.E. 2d 371 (2007). Alternatively, if police have reason to believe that a person is armed, even if he is licensed to possess the firearm lawfully, the police may frisk him if there is reason to believe that he poses a danger to the police or 8 9

11 others. See Commonwealth v. Foster, 48 Mass. App. Ct. 671, 680, 724 N.E. 2d 357 (2000) (Jacobs, J., concurring) ("The inherent dangerousness of guns... is not diminished by the fact that licensed carrying of a gun is lawful"); Commonwealth v. Fraser, 410 Mass. 541, & n.4, 573 N.E. 2d 979 (1991) (police have a duty to investigate potential dangers to the public; and an investigating officer who comes into proximity with the defendant need not place his safety at risk). 5. Exit Orders during motor vehicle stop. Fourth Amendment. Permits exit orders to a driver, Pennsylvania v. Mimms, 434 U.S. 106, (1977), and to passengers, Maryland v. Wilson, 519 U.S. 408, 412 (1997), as a matter of course. Art. 14 of Mass. Declaration of Rights. Requires a particularized reasonable apprehension of danger to the police or others before police may order a driver or passenger to exit a lawfully stopped motor vehicle. See Commonwealth v. Gonsalves, 429 Mass. 658, , 711 N.E. 2d 108 (1999). See Commonwealth v. Hooker, 52 Mass. App. Ct. 683, 755 N.E. 2d 791 (2001). While art. 14 requires a reasonable apprehension of danger before an exit order, it "does not take much" in the way of facts to support an objectively reasonable apprehension of danger. See Commonwealth v. Stampley, 437 Mass. 323, 326, 771 N.E. 2d 784 (2002) (test is whether facts and circumstances, viewed objectively, give rise to heightened awareness of danger on the part of police, recognizing that law enforcement officers may have little time in which to avert the sometimes lethal dangers of routine traffic stops). 6. Seizure of the Person During Execution of a Search Warrant. Michigan v. Summers, 452 U.S. 692 (1982) (police may permissibly detain occupants of premises during execution of search warrant) ; Muehler v. Mena, 544 U.S. 93 (2005) (detention and handcuffing of occupant during execution of search warrant for deadly weapons permissible under Fourth Amendment); Commonwealth v. Catanzaro, 441 Mass. 46, 803 N.E. 2d 287 (2004) (reasonable under Fourth Amendment and art. 14 to stop occupant of apartment to be searched as she walked down driveway fifty to seventy-five feet from apartment). 7. Roadblocks as Seizures of the Person. City of Indianapolis v. Edmond, 531 U. S. 32, 121 S. Ct. 447 (2000) (narcotics detection checkpoint program involving use of drug sniffing dogs violates Fourth Amendment not because of the use of dogs, but because the primary purpose of the suspicionless checkpoint was to uncover evidence of criminal wrongdoing). Put differently, use of the dogs was not a search, but the stop of the vehicles was an impermissible seizure. 9 10

12 Compare Illinois v. Lidster, 540 U.S. 419, 124 S. Ct 885, (2004) (highway checkpoint to obtain information from motorists regarding hit and run accident occurring one week earlier at same time and location does not violate Fourth Amendment because primary law enforcement purpose is not law enforcement but to ask members of public for help in providing information about a crime in all likelihood committed by others). III. SEIZURE OF PROPERTY. A. GPS Devices. Commonwealth v. Connolly, 454 Mass. 808, 913 N.E. 2d 356 (2009). As discussed in the previous section on Searches, in Commonwealth v. Connolly, supra, the majority and concurring opinions expend considerable effort in addressing whether the attachment of a GPS device to a target's automobile and continued monitoring with the device is a "search" or a "seizure" in the constitutional sense. The majority view is that the initial installation of the device was a seizure as was its continued use for surveillance purposes. The concurrence's view is that the initial installation of the device was a seizure because the police entered the vehicle in order to attach the device; but that without physical entry into the vehicle there would have been no seizure, only a search--an intrusion into a reasonable expectation of privacy. In the view of the concurrence the dispute is not merely academic: When there is no physical intrusion into the vehicle to install the GPS device but simply the attachment of a battery-powered device to the exterior of the vehicle, the police have not seized the vehicle, but instead have invaded the reasonable expectation of privacy of any person authorized to drive that vehicle. In our constitutional jurisprudence, this invasion is better characterized as a search. The distinction is not merely academic... The court's decision suggests that the constitutional concern we have with GPS monitoring is that attaching the device to the outside of the motor vehicle interferes with the owner's property interests. In fact, the appropriate constitutional concern is not the protection of property but rather the protection of the reasonable expectation of privacy. More specifically, the appropriate constitutional concern is that, without judicial oversight based on a finding of probable cause, the police potentially could engage in GPS monitoring of any individual and, through this device, learn what otherwise could be learned only through physical surveillance conducted seven days per week, twenty-four hours per day. The view of the concurrence in Connolly echoes and cites a position advanced by the New York Court of Appeals in describing the potential intrusion on privacy that may be accomplished through a GPS device attached to one s automobile: 11

13 Disclosed in the data retrieved from the [GPS] transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations -- political, religious, amicable and amorous, to name only a few -- and of the pattern of our professional and avocational pursuits. People v. Weaver, 12 N.Y.3d 433, (2009). Further, relying on the oft quoted words of Katz v. United States, 389 U.S. 347, ), that the Fourth Amendment protects people, not places the Connolly concurrence observed that the attachment of a GPS device to a motor vehicle by law enforcement officers is only one way to gather data in real time regarding the whereabouts of an individual... [V]irtually all of us now carry cellular telephones, many of which are equipped with GPS technology, permitting a cellular carrier to learn our precise whereabouts at any given moment.... Undoubtedly, new technologies will emerge that offer comparable opportunities of real-time monitoring to law enforcement. Our constitutional analysis should focus on the privacy interest at risk from contemporaneous GPS monitoring, not simply the property interest. Only then will we be able to establish a constitutional jurisprudence that can adapt to changes in the technology of real-time monitoring, and that can better balance the legitimate needs of law enforcement with the legitimate privacy concerns of our citizens. B. Securing the Premises from without and from within while obtaining a search warrant. Securing from Without: Illinois v. McArthur, 531 U.S. 326, (2001) (upholding exclusion of McArthur from his trailer/home while police, who had probable cause, obtained search warrant for the premises). Securing from Within: Segura v. United States, 468 U.S. 796, (1984); Commonwealth v DeJesus, 439 Mass. 616, 790 N.E. 2d 231 (2003) (permitting police who have probable cause to believe evidence will be found inside home and reason to believe that occupants are inside who might destroy the evidence to enter the residence, remove occupants, and secure it from within pending arrival of the search warrant). 12

14 Suggested reading: Florida v. Bostick, 501 U.S. 429 (1991) California v. Hodari D., 499 U.S. 621 (1991) Brendlin v. California, 551 U.S. 249, 127 S.Ct (2007) Arizona v. Johnson, 555 U.S. 129 S.Ct. 781 (2009) Commonwealth v. Grandison, 433 Mass. 135, 136, 138, 741 N.E.2d 25 (2001) Commonwealth v. Sykes, 449 Mass. 308, 867 N.E. 2d 733 (2007) Commonwealth v. DePeiza, 66 Mass. App. Ct. 398, 848 N.E. 2d 419 (2006) Commonwealth v. DePeiza, 449 Mass. 367, 868 N.E. 2d 90 (2007). Commonwealth v. Connolly, 454 Mass. 808, 913 N.E.2d 356 (2009) 13

15 14

16 WHAT IS A SEIZURE? Not all seizures are seizures in constitutional sense Seizures for Fourth Amendment Purposes Different types of seizures Right to be secure in persons, houses, papers, and effects Seizures of persons -- most common Seizures of houses -- search warrants Seizures of papers -- evidence Seizures of effects-- evidence Seizures of Persons The right to be left alone The right to freedom of movement Inviolability of the person 15

17 Seizure of Persons Arrests -- the most obvious Terry stops -- the most frequently considered Different standards d Arrest: probable cause Terry stop: reasonable suspicion What is a seizure in the constitutional sense? Seizure in Constitutional Sense Federal Standard: Hodari D. Intentional application of physical force Show of authority to which subject yields Massachusetts Standard Mendenhall free to leave standard Would reasonable person feel free to decline the officers request or otherwise terminate the encounter Mendenhall Show of Authority Factors Blocking of motor vehicle Activating overhead blue lights (not takedown or alley lights) Sirens Commencement of pursuit after show of authority Drawing of gun 16

18 Commonwealth v. Grandison Officers on patrol spot defendant walking Defendant does about face; walks away Police follow in their cruiser Defendant again reverses direction Police turn on cruiser s high beams/follow in new direction Defendant walks into alley Grandison Facts (Cont.) Inside alley police turn on alley lights Officer sees defendant spit small object Object falls on ground Police tell defendant, Stop Officers approach One officer retrieves object/drugs Defendant is arrested Grandison Decision No stop in the constitutional sense until police yell stop Following without more not constitutional pursuit No activation of blue lights or siren No blocking of path of movement No controlling direction or speed 17

19 Grandison Analysis The Free to Leave Standard Would a reasonable person feel free to leave or otherwise terminate this encounter? or Reviewing court s judgment that police conduct is permissible without need for justification and not so intrusive as to be a seizure Does the standard bear a striking similarity to the fuzzy standard that is the second prong of the expectation of privacy test? Compare Commonwealth v. Sykes Police in high crime area see black males pitching pennies No illegal drug activity observed Defendant on bicycle sees police arrive He moves away from the group He turns and looks back several times as he rides away Police pull alongside and ask if he would speak with them Sykes (Cont.) Defendant speeds bicycle up Police speed up vehicle correspondingly Defendant rounds a corner, hits a tree Abandons his bike Runs away clutching waistband Officers leave vehicle and chase on foot Defendant discards an object Officer tackles defendant Police retrieve the object unlicensed handgun. 18

20 Sykes Decision Close case Defendant seized for constitutional purposes when officers left cruiser and chased on foot No stop when they followed No stop when they asked to speak No stop when they sped up as defendant did By time of stop, police had reasonable suspicion of criminal activity Hodari D in Context Intentional application of force Show of Authority to Which Subject Yields Consider Brendlin v. California (2007) When police make a motor vehicle stop, the stop amounts to a stop in the constitutional sense of both driver and passenger Either driver or passenger may challenge the stop Reinvigorates the otherwise defunct concept of standing Passenger has expectation of privacy (right to freedom of movement) Brendlin Facts Police see motor vehicle with expired tags Pull over vehicle, ask driver for license Recognized front seat passenger as possible parole violator Asked passenger to identify self Confirmed parole violation warrant Search incident to arrest disclosed drug paraphernalia on defendant and in car 19

21 Brendlin Analysis Can Passenger challenge basis for police stop of motor vehicle for civil infraction? Put differently, is stop of the motor vehicle a seizure of the passenger s person Answer: Yes Brendlin seized from the moment the vehicle came to halt at side of road In traffic stop, officer seizes everyone in the vehicle Brendlin (Cont.) Modifies Hodari D. in this context: To extent application of force ambiguous (driver only or passenger), Mendenhall free to leave standard indicates reasonable passenger would understand not free to leave Whether further detention of passenger is permissible depends on facts of case Arizona v. Johnson Cabins expansive language of Brendlin Brendlin s import is as standing case Passenger of motor vehicle may also challenge lawfulness of the stop Important qualification: passenger not free to leave until original purpose of stop is concluded During time car stopped, passenger not free to terminate encounter Officer not required to let passenger depart without first ensuring that dangerous person not behind Officer s inquiries into unrelated matters do not convert stop into unlawful seizure provided inquiries do not measurably extend duration 20

22 Fine Line Drawing Commonwealth v. Depeiza (Mass Appeals Court) Police riding unmarked car/high crime area See young man walking and talking on cell phone Walking with right arm rigid and against side Officers pull alongside defendant Don t activate lights or siren Yell Yo, Dwayne (a made up name) Ask Defendant: where from, where going DePeiza Officers notice defendant shielding right side Avoided eye contact, looked left to right, shifted his weight Officer steps out of car and approaches Defendant tells police family lives nearby Defendant offers Id to prove not Dwayne Reaches into pants, gets Id, gives to officer Continues to shield his right side Police run Id -- no warrants or hits DePeiza Police observe right side jacket weighed down Officer says he wants to frisk before letting defendant go Frisk turns up unlicensed handgun When was the seizure? Was there reasonable apprehension justifying frisk? 21

23 DePeiza Decisions Appeals Court No seizure until expression of intent to frisk; no reasonable suspicion of criminal activity or reasonable apprehension of danger justifying frisk Supreme Judicial Court No seizure until expression of intent to frisk; reasonable suspicion of criminal activity (unlicensed handgun) existed that justified frisk Other Seizures of the Person Seizure of the person during execution of search warrant Michigan v. Summers Police may permissibly detain occupants of premises during execution of search warrant Muehler v. Mena Detention and handcuffing of occupant during execution of search warrant GPS Devices Is GPS monitoring a search or a seizure? Does it matter how we define it? Commonwealth v. Connolly, 913 N.E.2d 356 (2006) 22

24 Commonwealth v. Connolly Police investigate defendant for year; Surveillance, controlled buys, informants tips, and observed narcotics transactions; Undercover officer makes buy; Police submit application for GPS warrant; Warrant issues; device installed in van Police gather information using GPS device Commonwealth v. Connolly Using data from GPS police follow and arrest defendant Seize his van Search by drug sniffing dog locates 124 grams cocaine (big trafficking sentence) GPS Device (cont.) Features of GPS Tracks 24/7 with no human intervention Consists of receiver on target vehicle, telephone which transmits vehicle s position and computer monitoring device that receives and stores location information using mapping software to display vehicle s location 23

25 Feature of GPS (cont) Location data stored in computer files; Date may be kept indefinitely New information based on past vehicle locations may be generated at any time Devices powered internally (its own battery) or externally (installed in vehicle and attached vehicle battery) Installed in about an hour Connolly Majority Majority: Installation of GPS a seizure Required entry, used electrical system Ongoing physical intrusion is meaningful interference with possessory interest. More intrusive than a beeper Continued monitoring also a seizure regardless the power source and regardless whether data transmitted to monitoring computer. Connolly majority It is a seizure not by virtue of the technology employed, but because the police use private property (the vehicle) to obtain information for their own purposes. Continued monitoring also interferes with possessory interest: use and enjoyment of vehicle. 24

26 Connolly Concurrence Concurrence: Installation is a seizure; Continued monitoring is a search. Without Physical Intrusion No Seizure Characterization ti More than Academic Important differences turn on it. Expectation that comings and goings will not be contemporaneously monitored except through physical surveillance Connolly Concurrence (cont.) Physical surveillance require greater police resources; Physical surveillance generates far less information than GPS monitoring; Shaping of future contours of GPS monitoring/other technological advances more difficult if focus on seizure of property. Connolly Concurrence (cont.) Focus on privacy interest r/t property interest Better adapt to changes in technology; Better balance needs of law enforcement with privacy concerns of citizens 25

27 Other Seizures of the Person Roadblocks as seizures of the person City of Indianapolis v. Edmond Drug interdiction roadblocks not permissible Illinois v. Lidster Highway checkpoint for non criminal investigative purposes not violative of Fourth Amendment Seizures of Property Securing the Premises Securing from Without: Illinois v. McArthur (Excluding defendant from reentering his home while hl police obtained search warrant) Securing from Within: Segura v. United States (Entering premises and removing occupants, but not searching, pending obtaining of search warrant) 26