Arrest Warrants 2 Reasonability of Arrest 2

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Arrests 2

Arrest Warrants 2

Reasonability of Arrest 2

Searches and Seizures 3

REOP Analysis (Did a Search Occur?) 3

Probable Cause Analysis 3

Warrantless Seizure 4

Warrantless Search 4

Search Incident to Arrest (SITA) 5

Exigent Circumstances 6

“Plain View” Doctrine 6

Automobile Searches 6

Consent Searches 7

“Stop-and-Frisk” and Limited Detention Without P/C 7

Administrative Searches 9

Confessions and Testimonial Evidence 10

Requirements 10

Confessions and the Sixth Amendment Right to Counsel 10

The Miranda Rule and the Fifth Amendment 10

Testmonial Evidence 12

The Exclusionary Rule 14

Generally 14

Standing 14

Derivative Evidence 15

Collateral Use Exceptions 16

The “Good Faith” Exception 16

Deprivation of Counsel 18

Generally 18


Arrest Warrants

  • generally not required unless:

    • police entered a private home (Payton)

      • exception for exigent circumstances

        • exception inapplicable for minor offenses (Welsh)

      • remedy for violation (illegal search but not illegal arrest)

        • is exclusion of evidence seized

        • but not prevention of trial

        • also not exclusion of fruits of arrest (Harris)

      • special rules for third parties:

        • if arresting third party, then search warrant also required (Steagald)

        • third party social guests also entitled to arrest warrant (Olson)

        • passing third party business guests not entitled to search warrant (Carter)

    • AND no exigent circumstances exist

      • Arrest permissible where risk of destruction of evidence

      • Arrest permissible where in “hot pursuit” and suspect ducks into house

Reasonability of Arrest

  • arrest for traffic violation or misdemeanor reasonable if there is P/C (Atwater) [c.f. Welsh in which arrest prohibited in dwelling for DUI, despite exigency]

  • deadly force may render arrest unreasonable unless suspect poses immediate threat to officer/others and necessary to prevent escape (Tennessee v. Garner)

    • Remedy for violation:

      • exclusion of evidence seized incident to arrest may be possible (if excessive use of force necessary to procure evidence)

      • no defense to prosecution

Searches and Seizures

REOP Analysis (Did a Search Occur?)

  • REOP requirements:

    • actual, subjective expectation of privacy

    • society recognizes expectation as reasonable

  • trespass relevant but not dispositive

    • physical invasion is more intrusive than visual invasion (Bond, c.f., Ciraolo, Riley, Dow Chemical)

  • transfer to third person may eliminate REOP

    • applies to bank records (Miller)

    • applies to telephone pen record (no REOP in numbers called) (Smith v. Maryland)

    • but privacy interest may remain as with mailed packages

  • no REOP in contraband, therefore allowing yes/no test of substance to determine if contraband is acceptable (Jacobsen, Place)

  • usually no REOP in trash/abandoned property (Greenwood)

    • may be different if trash on property rather than curbside

    • abandonment usually not presumed where defendant drops property when approached by police

  • no REOP in prison cell

  • generally no REOP in what is in “plain view”

    • police use of mechanical devices to enhance view permissible

    • sophisticated devices permissible if

      • from permissible vantage

      • information could have been gotten without device (Knotts, Karo, Dow Chemical)

    • but use of devices not in “general public useviolates REOP (Kyllo)

      • rule generally limited to “interior of home

      • always permissible if warrant obtained

    • aerial observation permissible for if from location that is legal to public and public makes use of (Florida v. Riley)

    • plain touchcorollary permissible if officer has legal right to do touching (Minnesota v. Dickerson, c.f., Bond)

    • does not generally apply to contents of containers

      • exception is automobiles

Probable Cause Analysis

  • required for a full-scale search/arrest (less severe intrusions not requiring P/C include regulatory searches and “stop and frisks”)

  • sufficient for reasonable person to think more likely than not that proposed search/arrest justified

  • required for issuance of warrant

  • different standard for arrest vs. search

    • arrest: more likely than not that a violation of the law has been committed and that the person to be arrested committed the violation

    • search: more likely than not that specific items to be searched for are connected with criminal activities and will be found in place searched

  • only evidence presented to magistrate relevant in evaluation

    • if officer intentionally/recklessly presents false information, such information not permitted to weigh in P/C evaluation (Franks v. Delaware, c.f. Maryland v. Garrison)

  • determination on review is mixed question of law and fact, done de novo

  • examples of relevant evidence that can be considered in P/C determination:

    • suspect’s flight when approached

    • physical clues (e.g. footprints, fingerprints)

    • suspect’s voluntary admissions

    • suspicious or surreptitious conduct

    • suspect’s previous criminal record

    • suspect’s presence in high crime area

  • informant information subject to totality of circumstances test (Gates)

    • veracity and basis of knowledge are relevant considerations

    • corroboration also contributes to finding of P/C

      • includes corroboration of innocent activity

    • opens door to greater use of anonymous tips

    • police need not disclose identity of informant

  • where one officer acting on statement of another, officer making statement/alert must have P/C (Whiteley v. Warden)

Warrantless Seizure

  • seizure justified where R/S object is/contains contraband

  • destruction of small amount may be permissible to determine identify

  • location in “plain view” does not automatically give right to seize

  • may seize objects discovered in course of legal search if sufficiently connected to criminal activity that warrant could have issued

    • there is no requirement of inadvertence (Horton)

Warrantless Search

  • warrant generally required for search/seizure of property unless:

    • SITA of area within arestee’s control

    • Exigent circumstances (e.g. “hot pursuit,” destruction of evidence, harm to persons)

    • Evidence is in “plain view

    • Automobile exception allows “inventory search”

    • Person consents to search

    • Stop and frisk” search based on R/S

    • Regulatory search

Search Incident to Arrest (SITA)

  • restricted to area within defendant’s immediate control (Chimel)

    • search area generally loosely constructed (includes immediately adjoining spaces)

    • does not prohibit “protective sweep” of premises given reasonable belief based on “articulable facts” that another dangerous person present (Maryland v. Buie)

    • also allows officer to physically accompany arrestee (Chrisman)

      • accompaniment does not require exigent circumstances

    • for automobiles bright line rule allows search of entire passenger compartment and containers for “custodial arrest” (Belton)

      • tenuously applies to defendant cuffed in squad car (Thornton)

      • also applies to “recent occupant” (Thornton)

      • but not justified for mere citations (Knowles v. Iowa)

      • does allow search of closed containers in which there is P/C to believe object of search will be found (Ross)

      • does not extend to trunk unless P/C as to trunk exists (Ross)

    • still may not be “remote in time or place from arrest” (Chadwick)

  • timing of search somewhat flexible

    • search before arrest permitted where contemporaneous (Rawlings)

      • but may not be used to provide P/C (Smith v. Ohio)

    • search after arrest of suspect’s person legal where could have been made at arrest (Edwards)

      • also justified by right to inventory suspect before incarceration (Lafayette v. Illinois)

      • but intrusion into suspect’s body not permitted unless exigency present (Schmerber)

      • less permissible where police return to scene (Davis)

  • also applicable to arrests for minor crimes/traffic violations where custodial arrest occurs (Robinson, Gustafson)

    • search may be justified solely by desire for evidence (c.f. exigency)

    • such search limited to search of person; no search of car (Robinson)

    • note that prohibited for non-custodial arrest (Knowles)

  • pretextual stop where R/S present does not invalidate SITA (Whren)

    • likely extends to pretextual arrest where P/C present

  • motivated by:

    • frustration of arrest by escape risk

    • preservation/discovery of evidence

    • safety risk to officer

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