For A-Plus Writer Only

an anderson book

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Fourteenth Edition I Jacqueline R. Kanovitz

-hority te Detain and .. est; Use of Force

e right of the people to be secure in their persons ... against unreason- e .. . seizures, shall not be violated, and no Warrants shall issue, but n probable cause, supported by Oath or affirmation, and particularly ribing the person ... to be seized.

Fourth Amendment

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Chapter Outline

3.1 Introduction 3.2 Overview of the Fourth Amendment 3.3 Crossing the Boundary of the Fourth Amendment 3.4 -"Free Zone" for Investigative Work 3.5 -"Seizure" Defined 3.6 -Fourth Amendment Grounds for a Lawful Seizure 3. 7 Investigatory Stops 3.8 -Reasonable Suspicion 3.9 -Scope and Duration oflnvestigatory Stops 3.10 Traffic and Vehicle Stops 3.11 -Pretextual Traffic Stops 3.12 Requirements for a Constitutional Arrest 3.13 -Probable Cause 3.14 -Requirements for a Valid Arrest Warrant 3.15 -Arrests Inside a Private Residence 3.16 Use ofF orce in Making an Arrest or Other Seizure 3.17 State Arrest Laws 3.18 -Territorial Limits on a Police Officer's Arrest Authority 3.19 Summary and Practical Suggestions 151 Notes

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' KEY TERMS AND CONCEPTS

davit ...

....... o mmon law = 'g ent circumstances =elo ny =·esh pursuit - t pu rsuit ~ estigatory detention - 1estigatory stop

- 3.1 Introduction

Misdemeanor Pretextual traffic stop Probable cause Racial profiling Reasonable grounds Reasonable suspicion Seizure Show of legal authority Terry stop Voluntary encounter

During a routine day, an officer may pull a car over to advise the driver that her tire .:angerously low, ask three men loitering in front of a liquor store what they are doing

e. arrest a shoplifter, and use deadly force in self-defense. The Fourth Amendment =...=antees citizens the right to go about their business free of unreasonable interfer-

"" by the police. Because the concern is with unreasonable interference, the Fourth - -endment does not treat all police interventions alike. Developing workable princi-

: for when citizens may be detained for questioning, arrested, or forcibly subdued _:Tires a trade-offbetween society's need for effective law enforcement and the need - members for freedom from unwarranted interference with their ability to go about

-- usiness. This chapter explores the balance our society has struck. _-\ police officer's authority to detain citizens against their will is regulated by three ~of legal principles-the Fourth Amendment to the United States Constitution, = onstitutions, and state arrest laws. The Fourth Amendment guarantees the "right -e people to be secure in their persons .. . against unreasonable . .. seizures ... "

-- _ eYer a police officer detains a suspect for investigation, makes an arrest, or uses __ -o bring a suspect under control, the suspect is seized and the officer's conduct

~onform to Fourth Amendment standards of reasonableness. However, the Fourth dment is not the only rule police officers must obey. All states have constitutional

_ tutory provisions covering these matters as well. A police officer's actions must ·y with state constitutions and arrest laws, as well as the Fourth Amendment. The

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96 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE § 3.2

primary focus of this chapter is on the Fourth Amendment. Students will receive in-depth instruction in the arrest laws of their state as part of their police department training programs.

Figure 3.1 Legal Restrictions on Arrest Authority

In order to be lawfuL an arrest must comply with:

l . Fourth Amendment standards 2. state constitutional standards 3. state arrest laws.

§ 3.2 Overview of the Fourth Amendment

An arrest results in a deprivation ofliberty that carries serious consequences. It can damage important relationships, disrupt the ability to earn a living, and destroy a per- son's reputation in the community. As a result, common law judges wisely decided at an early date that arrest decisions should not be left to the unfettered discretion of the police. They established safeguards to reduce the likelihood of false arrests. In the case of an arrest for a misdemeanor, the common law required a prior judicial determina- tion that the arrest was justified, unless the offense was committed in the officer 's presence.' This is the origin of the modem arrest warrant. A warrant was not required to arrest for a felony because the threat to the public from having dangerous criminals roaming at large required that police be allowed to make an arrest at once. Protection against arbitrary arrests was provided through the requirement that the officer have probable cause to believe that a felony had been committed and that the person to be arrested had committed it. 2 These concepts helped shape the Fourth Amendment and play a central role in contemporary arrest law. 3

A. Historical Purpose of the Fourth Amendment

General warrants and writs of assistance were the historic evil that led to the Fourth Amendment's adoption. These instruments conferred blanket authority on Brit- ish customs officials to decide whom to search, where to search, and what to search for. 4 Armed with these dreaded instruments, customs officials could enter anyone's home without grounds for believing they had committed a crime or that contraband would be found there. 5 Hatred of this practice was one of the driving forces behind the American Revolution. 6 The purpose of the Fourth Amendment is announced in the first clause:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...

§ 3.2 AUTHORITY TO DETAIN AND ARREST; USE OF FORCE

B. Overview of Fourth Amendment Detention and Arrest Provisions

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The Fourth Amendment recognizes two classes of seizures: investigatory stops and arrests. Neither is mentioned in the text of the Fourth Amendment. The crucial erm is seizure . The Fourth Amendment states that " [t]he right of the people to be

secure in their persons . . . against unreasonable . · . . seizures shall not be violated." A seizure occurs when a suspect submits to a police officer's show oflegal author-

ity or the officer gains aCtual physical control over the suspect.1 When an officer acti - vates lights and siren and stops a vehicle, the motorist has been seized through submission to the officer's show oflegal authority (i.e., activating the lights and siren) . When an officer takes a person from his home to the police station at gunpoint, the person is also seized. Seizures are classified as investigatory stops or arrests according ~ their duration and intrusiveness. Investigatory stops are limited seizures made for the urp ose of conducting a brief investigation. 8 Pulling a vehicle over to check the regis-

rration because the vehicle matches the description of a stolen car is an example. Because investigatory stops are shorter and less intrusive than arrests, they are permit- :ed on a lower degree of suspicion. 9 The degree of suspicion needed for an investigatory _ op is known as reasonable suspicion. 10 When the police restrain a suspect's liberty - yond the degree allowed for an investigatory stop, the seizure automatically becomes a:n arrest and triggers the full protection of the Fourth Amendment. Arrests can occur either because an officer intends to make an arrest and so states or because a seizure -· at lasts too long or is too intrusive to qualify as a limited seizure .11 Taking a suspect - the police station at gunpoint, for example, is so intrusive that it constitutes an arrest,

-bether or not the officer intends this consequence . The Fourth Amendment is violated only when the seizure is unreasonable. A seizure

y be considered unreasonable for any of the following reasons: (1) the officer lacked -~equate grounds for the seizure, (2) the officer fai led to procure a warrant in a situation

\Yhich one was required, or (3) the officer used excessive force to affect the seizure. The Fourth Amendment requires grounds for a seizure . The officer must be aware

.: facts that support the degree of suspicion needed for the action that was taken. A - _ er degree of suspicion is needed for an arrest than for an investigatory stop because

·-more intrusive. If the officer lacks adequate grounds to justify the seizure, the sei- - =e will violate the Fourth Amendment. 12

The Fourth Amendment also regulates the method of affecting a seizure. The - · e, for example, are required to obtain an arrest warrant before they may enter a

·ate residence to arrest someone inside. 13 Even though the police have probable - to make the arrest, if they arrest a suspect inside her home without a warrant, the

is unconstitutional- not because they lacked grounds, but because they used the g method. An arrest warrant was necessary. Finally, the Fourth Amendment regu-

-~ the degree of force that may be used to affect a seizure. The force permitted varies - the seriousness of the offense and whether the officer 's safety or the safety of -e:rs appears to be at risk. 14

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98 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE

C. Consequences of an Unconstitutional Arrest or Detention for Investigation

§ 3.3

Fourth Amendment violations have serious consequences-for the person whose constitutional rights are violated, the criminal justice system, and the officer personally. A false arrest can destroy an innocent person's reputation. It can also hamper the pros- ecution of a guilty person. Procuring evidence of the crime is one of the main purposes of a criminal investigation. This purpose can be defeated if the suspect's arrest violates the Fourth Amendment. If the arrest is unconstitutional, any search that follows is unauthorized and physical evidence or incriminating statements obtained as a result are inadmissible as evidence. 15 While an unconstitutional arrest does not bar the govern- ment from trying a person, 16 if the only evidence that the state has to convict an armed robbery suspect is a gun, stocking, and large roll of bills taken from him during a search incident to an unconstitutional arrest, the offender will go free. Consequently, police officers must be able to recognize when their conduct involves a seizure, whether the seizure constitutes an investigatory stop or an arrest, and whether they have grounds for taking this action. The police also have a personal stake in complying with the Fourth Amendment. Violating a suspect's Fourth Amendment rights can lead to a civil lawsuit and, if the violation is intentional, to criminal prosecution as well. 17

Fi g ure 3.2 Consequences of an Unconstitutional Seizure

An unconstituti onal seizure can:

1. ruin an innocent person's reputa t ion 2. dest roy ad miss ib ility of evidence 3. lead to a civil su it and, in rare cases, criminal prosecut ion of t he offi cer.

§ 3.3 Crossing the Boundary of the Fourth Amendment

Police encounters with suspects range from contacts in which the suspect's coop- eration is voluntary to full-blown arrests . Students must learn to recognize and distin- guish among three kinds of interactions-voluntary encounters, investigatory stops, 18 and arrests. Figure 3.3 summarizes the descriptive characteristics and Fourth Amendment relevance of each. Because investigatory stops and arrests are both sub- categories of seizures, the concept of a seizure must be understood first.

Voluntary encounters are not regulated by the Fourth Amendment. The police have a "free zone" for investigative work-a zone in which they are at liberty to approach mem- bers of the public and ask questions or request other forms of assistance, even though they are acting on nothing more than a hunch. The critical characteristic of the "free zone" is that the suspect's compliance with the officer 's request is voluntary and consensual. The officer has not done or said anything that would convey the message that compliance is required. The moment this changes and the atmosphere becomes overbearing, threatening,