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CRIMINAL
PROCEDURE

10TH EDITION

JOEL SAMAHA

© 2018 CENGAGE LEARNING. ALL RIGHTS RESERVED. MAY NOT BE COPIED, SCANNED, OR DUPLICATED, IN WHOLE OR IN PART, EXCEPT FOR USE AS PERMITTED IN A LICENSE DISTRIBUTED WITH A CERTAIN PRODUCT OR SERVICE OR OTHERWISE ON A PASSWORD-PROTECTED WEBSITE FOR CLASSROOM USE.

SEIZURE OF PERSONS: ARREST

CHAPTER 5

ARRESTS ARE MORE INTRUSIVE THAN STOPS

Arrests, like stops, are Fourth Amendment seizures, but, they are more invasive and require a higher objective basis to make them reasonable.
They differ from stops in a number of ways:

Duration: Stops are measured in minutes; arrests last MUCH longer.

Location: Stops begin and end in much the same location; arrested individuals are taken to different locations.

Record: Most stops are not “written up.” Arrests produce written documents that become part of a person’s record.

THE DEFINITION OF ARREST

Arrest is a zone, not a point, within a spectrum of invasions.
Custodial arrests occur when a person is officially taken into custody and held to answer criminal charges.
The Fourth Amendment requires that arrests be supported by probable cause.

DISCUSS:

What does it mean when we say that arrests are a zone? How many different types of arrests can you think of?
How accurate is a “zone” mentality?

CHARACTERISTICS OF A
CUSTODIAL ARREST

The police officer says to the suspect, “You’re under arrest.”

The suspect is put into a squad car.

The suspect is taken to the police station.

The suspect is photographed, booked, and fingerprinted.

The suspect is searched.

The suspect is locked up either at the police station or in a jail cell.

The suspect is interrogated.

The suspect may be put into a lineup.

New slide

DEPRIVATION OF LIBERTY FROM STOPS TO IMPRISONMENT

Deprivation	Objective Basis	Duration	Location	Degree of Invasion
Voluntary contact	None	Brief	On the spot	Moral and psychological pressure
Stop	Reasonable suspicion	Minutes	At or near the stop on the street or in another public place	Reveal identification and explain whereabouts
Arrest	Probable cause	Hours to a few days	Usually removal to a police station	Fingerprints, booking, photograph, interrogation, identification procedures
Detention	Probable cause	Days to months	Jail	Inventory, full-body, strip, and body-cavity searches; restricted contact with the outside
Imprisonment	Proof beyond a reasonable doubt	Years to life	Prison	Same as detention with heightened invasions of privacy, liberty, and property

PROBABLE CAUSE

A crime has been, is being, or is about to be committed, AND
The person arrested has committed, is committing, or is about to commit the crime

PROBABLE CAUSE TO ARREST

By itself, probable cause is not the only element of a reasonable Fourth Amendment seizure. There’s also a reasonable manner of arrest requirement.
Applies to the way officers made the arrest.
Officers have to have a warrant before they enter homes to arrest suspects.
Officers can use only reasonable force to gain and maintain control over arrestees.

Revised ordering of slide for flow

A REASONABLE ARREST

There are two elements in a reasonable arrest:

Object basis—The arrest was backed up by probable cause.

Manner of arrest—The way the arrest was made was reasonable.

Probable cause is required for arrests.

APPLYING THE PROBABLE CAUSE STANDARD

In its day-to-day application, probable cause rests mainly with officers on the street, who must make quick decisions.
Judges have the final say on whether arresting officers had probable cause.
Courts tend to accept the facts as police see them.

PROBABLE CAUSE TO ARREST (SLIDE 1 OF 2)

Probable cause to arrest requires that officers know enough facts and circumstances to reasonably believe that:
A crime has been, is being, or is about to be committed, and
The person arrested has committed, is committing, or is about to commit the crime.

PROBABLE CAUSE TO ARREST (SLIDE 2 OF 2)

Reasonable belief can be based on either direct information or hearsay.
The probable cause requirement balances the societal interest in crime control with the individual right of locomotion.

DIRECT INFORMATION

Direct information is firsthand information known to arresting officers through their senses. It may need to be combined with other circumstances to amount to probable cause.
Direct information doesn’t automatically make the case for probable cause. The courts looks for patterns, or a totality of circumstances, that build the case for probable cause.

HEARSAY INFORMATION

Hearsay information is secondhand information known to arresting officers through interaction with other people.
The hearsay rule prohibits admission of secondhand evidence to prove guilt in court, but if it’s reliable and truthful, it can be used to establish probable cause to arrest.
And…not all hearsay carries equal weights – the trustworthiness and the source of the information is all weighed.

DRAPER V. U.S.

Discuss.

REQUIREMENTS FOR A WARRANT

The Fourth Amendment requires that arrest warrants include three elements:

A neutral magistrate. A disinterested judge to decide whether there is probable cause.

An affidavit (a sworn statement). Made by someone (usually the law enforcement officer) of the facts/circumstances amounting to probable cause.

The name of the person to be arrested. Has to identify, specifically, who is to be arrested.

WHAT IF…..

Officer Jones knows that Jim was involved in a series of car break-ins over the Memorial Day weekend. Officer Jones has home surveillance tapes that show Jim breaking into one car, an eye-witness identification and fingerprints to prove Jim was involved. Officer Jones goes to Jim’s house to make an arrest and knocks on the door. Jim’s wife answers the door and says that Jim is not home. Officer Jones sees that Jim’s vehicle is parked out front and hears noises from inside the home, despite the wife saying she is home alone. Jim pushes his way inside the house, finds Jim hiding in the closet and arrests him.

WHAT IF ….

What if police officers mistakenly came to your home thinking you were a violent felon? They have an arrest warrant for someone who looks like you. How would you handle this situation?

Traffic Stop example
Home Invasion example

ARREST WARRANT
REQUIREMENT

The warrant requirement depends on where the arrest was made and the degree of urgency involved.
Except in cases of exigency, warrants are required to arrest someone in a home.
Obtaining a warrant prior to the arrest ensures that the officer had probable cause.
What constitutes probable cause?

ARRESTS IN HOMES

Probable cause is enough to satisfy the Fourth Amendment reasonableness requirement for officers to make arrest outside the home; but, officers MUST have a warrant to make an arrest inside the home.
According to the U.S. Supreme Court, officials entering homes “is the chief evil” the Fourth Amendment was intended to protect (U.S. v. U.S. District Court, 1972)

EXIGENCY

In a case where a man was alleged to have been in a traffic accident and then driven away, officers went to his house and, after knocking but receiving no answer, broke down the door and found the defendant in bed, where he was arrested.
This was overturned – there were no exigent circumstances allowing the officers to enter the home nor to make an arrest in the home without a warrant. See Hopkins v. Bonvicino (9th Cir., 2009).

EXIGENT CIRCUMSTANCES

Some exigent circumstances allow officers to enter home without a warrant, like:
A serious offense, like a violent crime
Reasonable belief that the suspect is armed
More than the amount of probable cause needed to secure a warrant
A strong reason to believe the suspect is inside
A likelihood that the suspect will escape if not swiftly apprehended
Nonforcible entry
Pg 196 examples

TENNESSEE V GARNER

Discuss

GRAHAM V CONNOR

Discuss
SCOTUS left it to lower courts to apply the criteria of “the objective-standard-of-reasonable-force test” to a variety of types of force officers use to take and maintain control over arrested suspects.
Pages 202-203

KUHA V CITY OF MINNETONKA

Discuss

ARREST BY FORCE

The Fourth Amendment permits officers to use the amount of force necessary to apprehend and control suspects.
Deadly force may be used only if:
It is necessary to apprehend “dangerous” suspects
It doesn’t put innocent people in danger
Nondeadly force is more likely to be used to subdue suspects.

USE OF FORCE CONTINUUM

WHAT IF …..

What if you are in the car with a friend when you are pulled over by police and the officer draws his gun and tells you and your friend to get out of the car? You know you have done nothing wrong. What is the best way to handle this situation? Can the officer make you get out of your car without a warrant? Why/why not?

AFTER ARREST

When arrested for felonies, suspects are taken to the police station for further processing.
When arrested for misdemeanors, suspects are usually released.