Criminal Law for Paralegals: Chapter 2 Introduction Tab Text Chapter 2 Arrest, Search, and Seizure Introduction This chapter addresses arrests, searches, and seizures. Both arrests and search warrants must be justified by probable cause, as required by the Fourth Amendment to the US Constitution. Police officers cannot arrest a suspect simply on a hunch ; they must have a rational basis, which they can explain to a judge, before they can make an arrest. Not all detentions amount to an arrest. Police may briefly detain a person without probable cause, in order to ask questions or pat down a person for weapons. Beyond such brief encounters, however, the detention may amount to an arrest, requiring probable cause.
Search warrants also require probable cause. A search warrant allows police to enter property, conduct a search, and seize evidence of a crime. Before police officers can conduct a search, they must demonstrate to a judge or magistrate that they have probable cause that a crime has been committed. If a search is conducted without a warrant or other justification, any evidence seized during the illegal search, may be excluded at trial.
Lecture Notes Tab Text Arrest An arrest is detention of a person suspected of committing a crime. Objective Test: In determining whether a suspect is under arrest, the issue is whether a reasonable person would believe that he or she was under arrest. Warrants: Warrants are orders from a court. Warrants may be issued for a person s arrest (arrest warrant) and/or for the search and seizure of property (search warrant). Probable Cause: The Fourth Amendment requires that the police must have probable cause that a crime has been or will be committed before they can arrest a person or search property. Exclusionary Rule:
If a person is arrested without probable cause, the arrest is unconstitutional, therefore, the suspect may be released and the evidence obtained against him may be inadmissible (excluded) at trial. Example: A police officer observes John and his friends hanging out in front of a warehouse late on Friday night. The officer believes that John and his friends could be out for trouble. He arrests the group, on a hunch that they had met for a drug deal, although the officer saw no evidence of such a transaction. At the police station, an intake officer finds packets of cocaine taped to the inside of John s pants. The judge finds that John s arrest for loitering was made without probable cause that a crime was being committed and he is released from police custody. The drugs are also excluded from evidence, since they were obtained as the result of an illegal arrest. Note: The purpose of the exclusionary rule is to reign in overzealous law enforcement officers. The rule forces law enforcement to cover their bases and make sure that arrests and searches are legal. Terry Stops = Brief Detentions Terry Stops are brief detentions (detain and answer sessions) made by an officer who has reasonable suspicion of criminal activity, but not probable cause. During the questioning, the officer may determine that there is, in fact, probable cause to arrest the individual. Stop and Frisk: An officer may stop and frisk an individual if he has reasonably believes that an individual is armed and dangerous. A stop and frisk may be permitted without probable cause for an arrest. Consent If a defendant consents to a search and seizure, the officer does not need probable cause to conduct the search. Citizen s Arrest: Felony: Private citizen s can make an arrest if a felony occurs in their presence or to prevent a felony from occurring. Misdemeanor: A citizen may only make an arrest for a misdemeanor if the misdemeanor occurred in the citizen s presence. Search Warrants A search warrant is an order (warrant) issued by a judge, authorizing the police to search a private residence or other area and seize particular kinds of property. Governmental Search vs. Civilian Search
Warrants are required only for searches by the government, not private individuals/companies. Example: A UPS driver discovers a strong drug-like odor coming from a package being shipped to a college campus. The driver opens the package and, upon finding marijuana, takes the package to his supervisor. The company calls the police, who arrests the shipper. The unauthorized opening of the package by UPS was not governmental intrusion, and, therefore, the contents of the package may be used against the shipper in a criminal trial for transportation of illegal drugs. Compare: UPS did not need a warrant to open the package; however, if UPS had contacted the police BEFORE opening the package, the police would have to obtain a warrant to open the package. Applications for Search Warrant To obtain a search warrant, police officers generally have to appear before a judge and present sworn testimony or, more commonly, an affidavit. The affidavit is a sworn statement listing the facts to support the officers contention that evidence of a crime will be found at the specified place; the officers are also required to list the items they intend to seize. Requirements for Search Warrant: 1. Sworn testimony or affidavit by police officer; 2. Description of place to be searched/items to be seized; 3. Basis for suspecting evidence will be found at location; 4. Signature of judge authorizing search and seizure. Exceptions to Search Warrants: Absent one of the following exceptions, a search warrant must be obtained: Plain view : items in plain view of officer Open fields : items in plain view in fields Dropped evidence: evidence dropped by fleeing suspect Garbage: no privacy expectation in garbage Contraband: no privacy expectation in illegal items Stop and Frisk: pat down during a brief detention US border searches: cursory search of luggage/people Use of specially trained dogs Consent: waives requirement for search warrant
Limitations on Search Warrants: Search warrants must be executed within a reasonable amount of time after it is issued.
Application Tab Text 1. Two friends are driving across country. Ted, the driver, is exceeding the speed limit, when the car is pulled over by a state trooper. Ted s friends, Carl, has brought along a half pound of marijuana. When Carl sees that the police are pulling the car over, he panics and throws the marijuana out of the window. The state trooper sees the bag fly out of the window and retrieves it. He recognizes the green, leafy substance inside the bag. Does he have sufficient probable cause to arrest both Ted and Carl? If yes, why? If not, what additional information would he need before he could make an arrest? Under this scenario, the officer has probable cause to arrest both occupants (especially since he doesn t know who threw the bag out the window).
2. In the Fortner case (Appendix), once the police are informed that the suspect may actually work at the strip mall; they go to the area and stop every man with light brown hair and a mustache. One of the people they stop is the defendant, Mark Fortner. Based on our readings of the U.S. Supreme Court s interpretation of the Fourth Amendment, is this a valid stop? Do the police need something more? If so, what? (For a complete overview of the Fortner cases, please see Appendix.) If the police are merely briefly detaining people who fit the suspect s description, this is probably constitutionally valid. However, if they are arresting everyone who meets that description, they have obviously exceeded their authority. Once they detain the suspect and further investigation develops new information, they may be justified in continuing to hold him, or to arrest him outright.
Discussion Points Tab Text 1. Does the drug courier profile promote racism, or is it a reasonable law enforcement tool? The drug courier program has come under harsh criticism in recent years. Many law enforcement agencies have responded by keeping better records of the people they have detained under the drug courier profile. This question can lead to a lively discussion among the students about the purpose for such profiles. 2. Do Terry stops provide an excuse for police to pull over innocent citizens, or are they a necessary tool for law enforcement? This answer will vary based upon your philosophy and personal experiences.
3. Why would the Founding Fathers of our country devote so much attention to arrest and seizure in drafting the U.S. Constitution? One could argue that the Founding Fathers had more than enough experience with capricious laws and selective enforcement and they sought to spell out clear limitations on the power of the new government to prevent then from doing what their former government had done to them.
Chapter Review Tab Text 1. Is probable cause for an arrest the same standard required for a search warrant? 2. Can drug search dogs be used to help establish probable cause to search? 3. Why would a person s consent do away with any constitutional concerns about search and seizure?
Chapter Review Answers Tab Text 1. Is probable cause for an arrest the same standard required for a search warrant? Although the technical definition of probable cause is the same for arrests and for seizure of evidence, in the real world, the standard is applied somewhat differently. Probable cause to arrest goes to the ultimate guilt or innocence of the person charged. Probable cause for a search simply has to establish that there is a reasonable belief that evidence can be found in a particular place. 2. Can drug search dogs be used to help establish probable cause to search? Drug dogs can be used to establish probable cause, but only after law enforcement has established a reasonable suspicion that a drug dog would be necessary.
3. Why would a person s consent do away with any constitutional concerns about search and seizure? A valid consent waives any constitutional challenges. By signing a consent form, the suspect is essentially saying I give you permission to search; you no longer need probable cause.
Chapter Quiz Tab Text Click here for the Chapter Quiz.