|C H A P T E R 8
The Law of Arrest,
Search, and Seizure:
Police and the Constitution
The police have both investigative and arrest powers. Investigative powers include the power to stop and frisk, to order someone out of a vehicle, to question, and to detain. Arrest powers include the power to use force, to search, and to exercise seizure and restraint. The Constitution places restrictions on the exercise of these powers, but determining the specific intent of the Constitution in this behalf has been left to the courts.
Search and seizure refers to the search for and the taking of persons and/or property as evidence of crime. The Fourth Amendment prohibits “unreasonable” searches and seizures, although it has been notably ambiguous in defining the parameters of unreasonableness. As a result, the Supreme Court has had to define these limits in a variety of Fourth Amendment challenges. Court decisions have provided guidelines for the issuance of search warrants, searches incident to arrest, and the circumstances involving stop-and-frisk, fresh pursuit, random automobile checks, consent searches, and “plain view” seizure.
In Terry v. Ohio (1968), the Supreme Court held that police could no longer stop and frisk individuals at will. Instead, the Court ruled that the officer must have constitutionally reasonable grounds for doing so. On the other hand, the Court has tended to be quite liberal in granting police officers access to warrantless searches of automobiles. A number of recent decisions have expanded the circumstances under which officers may search vehicles and their contents. With regard to consent searches, the Court has issued a number of rulings regarding under what conditions and by whom consent can be issued, the nature of free and voluntary consent, and the viability of limited consent as a legal principle. Lastly, in the case of plain view, the Court ruled in Harris v. United States (1968) that evidence in an officer’s plain view is admissible because it was not produced by a search.
The Supreme Court’s exclusionary rule prohibits in court the use of any evidence seized in violation of the Fourth Amendment ban against unreasonable search and seizure. In Weeks v. United States in 1914, the Court established the exclusionary rule for federal prosecutions; Mapp v. Ohio extended this rule to the states in 1961. Since Mapp, however, there has been dissatisfaction with the exclusionary rule. Since the 1960s there has been a general retreat from the guidelines established in Mapp; the greatest setback came in 1984 when the Court established the “good-faith” exception, allowing evidence gathered in questionable searches to be admitted into court depending on the circumstances of the search.
In criminal prosecutions, the Constitution prohibits forced confessions and guarantees the assistance of counsel in federal cases. However, these restrictions were applied to the states only recently. The first of these provisions occurred in 1936 as part of the Brown v. Mississippi decision, in which the Court ruled that state courts cannot use coerced confessions as the basis of criminal convictions. During the 1964 term, the Court ruled in Escobedo v. Illinois that the accused must be allowed to have an attorney present during the police interrogation. In addition, the Court later established in Miranda v. Arizona (1966) that police officers must issue Miranda warnings to all suspects prior to questioning them. As with Mapp, there was dissatisfaction with the Miranda rule, but over the years it has managed to survive.
CHAPTER TOPIC OUTLINE
1. Police Powers
a. Investigative powers
b. Arrest powers
To use force
To exercise seizure and restraint
2. Search Warrants
a. Evidence gathering is typically dependent on search. Search warrants cannot be issued without “probable cause” — facts or apparent facts that are reliable and generate a reasonable belief that a crime has been committed.
b. Probable cause for issuance of a warrant
Exhibit 8.1, Law and Criminal Justice: Illinois v. Gates
3. Exceptions to the Search Warrant Requirement
a. Search incident to lawful arrest
Exhibit 8.1, Law and Criminal Justice: Terry v. Ohio
Fruit of the poisonous tree
California v. Hodari, D.
Illinois v. Wardlow
Minnesota v. Dickerson
plain feel doctrine
Hiibel v. Nevada
c. Automobile searches
Carroll v. United States: The Carroll doctrine
United States v. Ross
New York v. Belton
California v. Acevedo
Police spot checks
Delaware v. Prouse
Exhibit 8.3, Gender Perspectives on Crime and Justice: Warrantless Vaginal Cavity Searches
Indianapolis v. Edmond
Illinois v. Lidster
d. Fresh pursuit
e. Consent searches
Who can give consent to search what; what constitutes free and voluntary consent; is there a principle of limited consent?
Florida v. Bostick (See also Exhibit 8.4.)
f. Other warrantless searches
Expectation of privacy
g. The plain view doctrine
4. The Exclusionary Rule
a. Weeks v. United States (1914): adoption of the exclusionary rule at the federal level.
b. Wolf v. Colorado (1949): the Court refused to extend the exclusionary rule to the states.
c. Rochin v. California (1952): evidence acquired in a manner that shocks the conscience is invalid.
d. Mapp v. Ohio (1961): the exclusionary rule was extended to the states.
e. The impact of Mapp
Linkletter v. Walker (1965) decided that Mapp was not retroactive.
f. The retreat from Mapp
United States v. Calandra (1974): illegally obtained evidence is admissible at grand jury proceedings.
Stone v. Powell (1976): no more use of habeas corpus to enforce the exclusionary rule.
United States v. Leon (1984): the good-faith exception to the exclusionary rule; see also Exhibit 8.5.
5. Custodial Interrogation
a. Twining v. New Jersey (1908): The inadmissibility of involuntary confessions does not apply to the states.
b. Brown v. Mississippi (1936): Confessions secured through physical brutality are a violation of the due process clause of the Fourteenth Amendment.
c. The prompt arraignment rule
McNabb v. United States (1943): Confessions obtained after unreasonable delay in a suspect’s arraignment cannot be used in a federal court.
Mallory v. United States
d. Confessions and counsel
Escobedo v. Illinois (1964): A suspect has the right to have counsel before a custodial interrogation can take place; see also Exhibit 8.6.
e. Miranda v. Arizona (1966): A suspect has the right to remain silent and have counsel.
f. Miranda warning
g. Exhibit 8.7, A View from the Field: Miranda’s Nine Lives
h. The erosion of Miranda
Harris v. New York (1971): Statements made in violation of Miranda warnings can be used to impeach a defendant’s credibility as a witness.
Michigan v. Tucker (1974): Evidence derivative of an interrogation contaminated by Miranda violations is admissible.
Brewer v. Williams (1977): the only serious challenge to Miranda during the 1970s.
Rhode Island v. Innis (1980): a narrowed definition of “interrogation.”
Nix v. Williams (1984): the “inevitable discovery” exception to Miranda.
New York v. Quarles (1984): the public safety exception to Miranda.
Dickerson v. United States (1999): voluntary statements are admissible as evidence even if Miranda rights are not read to suspect.
6. Show Ups, Lineups, and Exemplars
a. Kirby v. Illinois
b. United States v. Wade
DNA and Other Nontestimonial Exemplars
Other Topics of Interest:
Critical Thinking in Criminal Justice: DNA Fingerprinting
Careers in Criminal Justice: Police Scuba Units
Famous Criminals: “The Subway Vigilante”
KEY TERMS AND CONCEPTS
Carroll doctrine Miranda v. Arizona
Chimel v. California “plain view” doctrine
Delaware v. Prouse probable cause
Escobedo v. Illinois protective sweep doctrine
exclusionary rule Rochin v. California
Florida v. Bostick search and seizure
fruit of the poisonous tree search warrant
Illinois v. Gates Terry v. Ohio
Illinois v. Wardlow United States v. Leon
Indianapolis v. Edmond United States v. Wade
Mapp v. Ohio Weeks v. United States
Minnesota v. Dickerson
After a thorough study of Chapter 8, students should be able to answer the following questions:
1. What is ethnic profiling, and is it constitutionally permissible?
2. What are the differences between police investigative powers and arrest powers?
3. What is probable cause?
4. Under what circumstances may police conduct a search without a warrant?
5. What is meant by “search and seizure”?
6. What are the issues surrounding hot pursuit?
7. What is the exclusionary rule?
8. What is the significance of Mapp, Escobedo, and Miranda for both citizens and the police?
9. What are the major U.S. Supreme Court decisions related to police search and arrest?
SUPPLEMENTARY LECTURE MATERIALS
Chapter 8 is an especially difficult one for students. Not only are there many important key terms and Supreme Court decisions to remember, but also the content and rationale of these decisions can be difficult to grasp. But the importance of it all cannot be overstated. First, the relationship between the police and the Constitution is examined. Second, and related to the first issue, the chapter makes students aware of what limitations the courts have placed on the powers of the police and what constitutional protections exist. Third, taken as a whole there is a very important lesson in Chapter 8, perhaps more important than the content of the cases themselves. After having gone through Weeks, Mapp, Gates, Escobedo, Miranda, and all the others, students will begin to realize that law and constitutional protections do not exist in a vacuum, that they are not simply listings of rights, liberties, and boundaries that a group of legislators decided to sit down one day and compile for the sake of having better controls over police powers. Rather, it will become clear that the enjoyment of constitutional protections did not come easily; that the evolution of due process of law has been a slow and difficult task that left many tragic victims in its path; and that the process of evolution will likely never end, given the nature of constantly changing social and political philosophies.
There is likely enough in Chapter 8 to keep students busy for quite some time. In addition to the almost two dozen key terms and other matters in the textbook, there is quite a bit in the Study Guide as well. Given this, I doubt that many students would greet with joy a host of added material for them to make notes on and commit to memory. Nevertheless, a considerable amount of supplementary lecture material is included here, which can be useful for demonstrating a number of things to students: (1) It highlights the evolutionary nature and changing character of constitutional law. (2) It points to the fact that each major Supreme Court decision opens a Pandora’s box of unanswered questions and secondary issues. (3) It illustrates that new situations are constantly emerging that require constitutional interpretation.
ILLINOIS V. GATES: APPLICATIONS
Almost immediately after the High Court announced its decision in Illinois v. Gates (462 U.S. 213) in 1983, state and federal court decisions across the nation began adopting the new Gates standard. Gates had relaxed the test for probable cause based on an informer’s tip, replacing the “two-pronged” Aguilar-Spinelli standard with a more liberal “totality of circumstances” analysis. In early 1984, appellate courts in Arizona and Maryland declared the Gates standard of review to be retroactive (State v. Espinoza-Gamez, Ariz SupCt, 34 CrL 2434; Ramia v. State, MD CtSpecApp, 34 CrL 2435), and numerous other state jurisdictions simply adopted the more relaxed test. By contrast, Washington, Connecticut, and New York refused to adopt Gates, holding that their state constitutions required that search warrant affidavits based on informers’ tips establish both the basis of information and the credibility of the informer (State v. Jackson, Wash SupCt, 35 CrL 2445 ; State v. Kimbro, Conn SupCt, 37 CrL 2462 ; People v. Johnson, NY CtApp, 38 CrL 2201 ).
Perhaps the most sweeping adoption of the Gates decision occurred in Kentucky (Whisman v. Commonwealth, 34 CrL 2401 ). The Kentucky Court of Appeals held that the Gates standard for determining whether an informer’s tip establishes probable cause to support the issuance of a search warrant is also applicable where a warrantless search is involved. Applying the Gates analysis, the court ruled in Whisman that police officers who learned from an anonymous informer that an occupant of the defendant’s automobile was flourishing a pistol, and who then confronted the belligerent defendant where the informer said the car would be, had sufficient probable cause to search the vehicle. The court added that no warrant was required due to the exigency of the situation.
TERRY V. OHIO
In Terry, a case which established some boundaries for police stop-and-frisk procedures, the Supreme Court declared in 1968 that a police officer is not entitled to seize and search every person the officer sees on the streets and of whom he or she makes inquiries. Before placing a hand on the person of a citizen in search of anything, the officer must have constitutionally adequate and reasonable grounds for doing so. What, however, are constitutionally adequate and reasonable grounds? In the Terry case, many of the activities associated with casing a job for a stickup were manifest, and the High Court declared the police officer’s grounds for intervention to be adequate and reasonable. From an analysis of a number of federal and state court decisions, it would appear that there are mixed reviews as to what should constitute grounds for a Terry stop.
Furtive Gestures and Flight
What, first of all, is a furtive gesture? According to old English law, it was something done with stealth. In a 1983 Colorado case (People v. Thomas, Colo Sup Ct, 33 CrL 2065), a Terry stop had been instigated by a series of furtive gestures. Two narcotics detectives had been on patrol in a high-crime section of Denver. They observed the defendant standing in a parking lot and recognized him. After the defendant made eye contact with the detectives, he began his furtive gestures. First, he started to run away. Second, while in flight, he put his hand in his pocket. Third, after he had reached his destination, he threw something into a pitcher of water. When the detectives caught up with the defendant, they retrieved the items from the pitcher, which turned out to be six balloons of cocaine. The defendant was arrested.
The Colorado court held that the investigative stop was not supported by Terry. They explained their decision as follows:
The problem with the so-called furtive gesture as the basis for a stop is its inherent ambiguity. From the viewpoint of the observing police officer, an innocent move may often be mistaken for a guilty reaction. From the perspective of the person observed, the “furtive gesture” might be impelled by a variety of motives, from an unsettling feeling of being watched to an avoidance of what might be perceived as a form of harassment. Then again, a person’s movement may not be a reaction to the police at all.
Flight and Other Suspicious Factors
Late one evening in 1974, three Washington, D.C., police officers on patrol in a high-crime area came upon a beat-up 1967 Cadillac with three men inside. The officers’ suspicions were aroused by the lateness of the hour, the frequency of the robberies in the area, their knowledge that those robberies were usually committed by men working in groups of two or three, the condition of the car as typical of the type used in robberies, and the fact that they had never seen the vehicle in that area before. They decided to make a spot check of the Cadillac. As they approached, the driver emerged and slowly walked to the rear of the vehicle. One of the officers called out, ”Come here, police officer,” at which point the driver fled on foot. This raised further suspicions about the other two occupants of the car. They were ordered out of the vehicle and frisked, and a pistol and ammunition were found. At trial, the two defendants moved to suppress the pistol and ammunition on grounds that they were fruits of an illegal Terry stop, but the judge denied the motion.
When the case was first reviewed by the Washington, D.C., Court of Appeals in 1983 (Johnson v. U.S., 34 CrL 2214), it was held that the police had no legitimate basis for seizing the driver, let alone the passengers. (Although the driver was not apprehended, the court defined the officer’s order “Come here, police officer" as a seizure.) In 1985, the case was heard for a second time in the same court (U.S. v. Johnson 37 CrL 2411). The government had petitioned for a rehearing on arguments based on Rakas v. Illinois (439 U.S. 128 ), in which the Supreme Court had established the principle that a defendant may not challenge a violation of someone else’s Fourth Amendment rights. Based on Rakas, the court changed its mind. It explained that while there was still no cause for the initial seizure of the vehicle’s driver, his flight may be imputed to the two occupants since, under the circumstances, the officers could reasonably infer that the car’s occupants were engaged in a common venture.
Flight and More Suspicious Factors
In light of the decisions in these furtive gestures and flight cases, it would appear that a conflicting interpretation of Terry occurred in the Louisiana Supreme Court (State v. Belton, 34 CrL 2215 ). On a November evening in 1981, two police officers observed the defendant standing in a parking lot with his hands in his pockets and talking to no one. This stance, the officers said, was the one normally exhibited by the defendant when he was holding narcotics. The defendant was known to the officers as a narcotics dealer, and the parking lot was that of a known hangout of drug dealers and armed robbers. As the officers entered the parking lot, the defendant appeared nervous and ran into the hangout. The officers chased after him, ordering him to stop. Once inside, they spotted the defendant at the bar, approached him, and frisked him for weapons. One of the officers spotted a brown paper bag on the floor nearby, which was found to contain drugs, and a barmaid indicated that she had seen the defendant drop the bag as he came into the establishment.
The court ruled that although flight is, by itself, insufficient to justify an investigatory stop, coupled with suspicious conduct it may be reasonable cause to detain. In this case, the majority of the court ruled that the drugs dropped during the defendant’s flight were properly seized and represented probable cause for arrest. The court explained that the totality of circumstances (the defendant’s demeanor, the location of the episode, and the officers’ knowledge that the defendant was a narcotics dealer) was sufficiently suspicious to justify a Terry stop.
In retrospect, on the basis of the other Terry-related decisions presented, could it not be argued that the defendant was merely exercising his right to be left alone? The drugs had not been found until after the defendant was frisked. Thus, using the language of the Supreme Court, was there adequate and reasonable cause to believe that the defendant was engaged in criminal behavior?
Terry and the Fourth and Fifth Amendments
In the decades since the Supreme Court’s decision in Terry, the imprecision of the reasonable suspicion standard and the endless variety of situations encountered by police officers on patrol continue to deluge the courts. The case of Hiibel v. Nevada (542 U.S. 177 ) is mentioned briefly in the textbook. The case involves Larry Hiibel, who repeatedly refused to identify himself to an officer and claimed that his Fourth and Fifth Amendment rights were violated when he was arrested.
In regard to the Nevada state statute that mandates that a suspect provide his or her name to police, the Court found the policy was completely reasonable within the context of a Terry stop. Specifically, the Court held:
A state statute requiring a criminal suspect to disclose the suspect's name to a law enforcement officer in the course of a valid investigative stop — of the kind allowed under Terry v Ohio — was consistent with the prohibitions of the Federal Constitution's Fourth Amendment against unreasonable searches and seizures, for:
(1) The statute—as interpreted by the state's highest court and as understood by the United States Supreme Court—did not require a suspect to give the officer a driver's license or any other document. Provided that the suspect either stated the suspect's name or communicated the name to the officer by other means, the statute would be satisfied and no violation would occur.
(2) Obtaining a suspect's name in the course of a Terry stop served important government interests.
(3) The request for identity had an immediate relation to the purpose, rationale, and practical demands of a Terry stop.
(4) The threat of criminal sanction helped insure that the request for identity would not become a legal nullity.
(5) The statute did not alter the nature of the stop itself, as the statute did not change the stop's duration or location.
The Court held that the petitioner's refusal to comply with the state statute does not violate his Fourth Amendment rights or the Fifth Amendment's prohibition on self-incrimination:
(a) State stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. They vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. In Papachristou v. Jacksonville, 405 U.S. 156, 167-171, 31 L. Ed. 2d 110, 92 S. Ct. 839, this Court invalidated a traditional vagrancy law for vagueness because of its broad scope and imprecise terms. The Court recognized similar constitutional limitations in Brown v. Texas, 443 U.S. 47, 52, 61 L. Ed. 2d 357, 99 S. Ct. 2637, where it invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds, and in Kolender v. Lawson, 461 U.S. 352, 75 L. Ed. 2d 903, 103 S. Ct. 1855, where it invalidated on vagueness grounds California's modified stop and identify statute that required a suspect to give an officer "credible and reliable" identification when asked to identify himself, id., at 360, 75 L. Ed. 2d 903, 103 S. Ct. 1855. This case begins where those cases left off. Here, the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown. Further, Hiibel has not alleged that the Nevada statute is unconstitutionally vague, as in Kolender. This statute is narrower and more precise. In contrast to the "credible and reliable" identification requirement in Kolender, the Nevada Supreme Court has interpreted the instant statute to require only that a suspect disclose his name. It apparently does not require him to produce a driver's license or any other document. If he chooses either to state his name or communicate it to the officer by other means, the statute is satisfied and no violation occurs.
(b) The officer's conduct did not violate Hiibel's Fourth Amendment rights. Ordinarily, an investigating officer is free to ask a person for identification without implicating the Amendment. INS v. Delgado, 466 U.S. 210, 216, 80 L. Ed. 2d 247, 104 S. Ct. 1758. Beginning with Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, the Court has recognized that an officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, see, e.g., United States v. Hensley, 469 U.S. 221, 229, 83 L. Ed. 2d 604, 105 S. Ct. 675, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer, see Brown, supra, at 53, n. 3, 61 L. Ed. 2d 357, 99 S. Ct. 2637. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop. Terry, supra, at 34, 20 L. Ed. 2d 889, 88 S. Ct. 1868. The Nevada statute is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures because it properly balances the intrusion on the individual's interests against the promotion of legitimate government interests. See Delaware v. Prouse, 440 U.S. 648, 654, 59 L. Ed. 2d 660, 99 S. Ct. 1391. An identity request has an immediate relation to the Terry stop's purpose, rationale, and practical demands, and the threat of criminal sanction helps ensure that the request does not become a legal nullity. On the other hand, the statute does not alter the nature of the stop itself, changing neither its duration nor its location. Hiibel argues unpersuasively that the statute circumvents the probable-cause requirement by allowing an officer to arrest a person for being suspicious, thereby creating an impermissible risk of arbitrary police conduct. These familiar concerns underlay Kolender, Brown, and Papachristou. They are met by the requirement that a Terry stop be justified at its inception and be "reasonably related in scope to the circumstances which justified" the initial stop. Terry, 392 U.S., at 20, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Under those principles, an officer may not arrest a suspect for failure to identify himself if the identification request is not reasonably related to the circumstances justifying the stop. Cf. Hayes v. Florida, 470 U.S. 811, 817, 84 L. Ed. 2d 705, 105 S. Ct. 1643. The request in this case was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence. The stop, the request, and the State's requirement of a response did not contravene the Fourth Amendment.
(c) Hiibel's contention that his conviction violates the Fifth Amendment's prohibition on self-incrimination fails because disclosure of his name and identity presented no reasonable danger of incrimination. The Fifth Amendment prohibits only compelled testimony that is incriminating, see Brown v. Walker, 161 U.S. 591, 598, 40 L. Ed. 819, 16 S. Ct. 644, and protects only against disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used, Kastigar v. United States, 406 U.S. 441, 445, 32 L. Ed. 2d 212, 92 S. Ct. 1653. Hiibel's refusal to disclose was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish evidence needed to prosecute him. Hoffman v. United States, 341 U.S. 479, 486, 95 L. Ed. 1118, 71 S. Ct. 814. It appears he refused to identify himself only because he thought his name was none of the officer's business. While the Court recognizes his strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature's judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him. Answering a request to disclose a name is likely to be so insignificant as to be incriminating only in unusual circumstances. See, e.g., Baltimore City Dep't of Social Servs. v. Bouknight, 493 U.S. 549, 555, 107 L. Ed. 2d 992, 110 S. Ct. 900. If a case arises where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense, the court can then consider whether the Fifth Amendment privilege applies, whether it has been violated, and what remedy must follow. Those questions need not be resolved here.