PART V – CONTACT, DETENTION AND ARREST
1. See handouts -
“The Bill of Rights and Fourteenth Amendment to the U.S. Constitution.”
Requires that all searches and seizures of a person and/or his/her belongings
must be reasonable.
2. The primary difference is the freedom of movement. In a contact it is complete, in a detention it is temporarily limited, and in an arrest it is taken away.
3. a. - e. See handouts - “Contact, Detention and Arrest.”
Also see text - pages 2:1 - 2:4 (intro, 1-3).
a. It isn't a seizure because it depends completely on the person's willingness to voluntarily stay and speak with you.
b. No justification is needed beyond the officer's mere suspicion or hunch. Just as any citizen may walk up to another and attempt to engage him in a conversation, and officer may approach a citizen and attempt to speak to him as long as it is clear to that person, at least by the officer's actions if not by overt statements, that he is completely free to refuse to stay or converse.
c. None, actual or implied, verbal or physical. Any force will negate the voluntary nature of the contact.
d. None, beyond a possible caretaking search where the person is in some way incapacitated. Frisks are not justified without the R/S needed to justify a detention, plus R/S that the person is armed.
e. No it is not, because voluntary contact can never look like custody and still be voluntary contact.
4. a. - b., d. & f. See handouts - “Contact, Detention and Arrest.”
Also see text - pages 2:6 - 2:17 (B. 1-3).
b. U.S. v. Arvizu (2002) – affirmation that totality of the circumstances is the basis for determining if reasonable suspicion exists, even if the factors used to develop R/S are have innocent explanations by themselves.
c. The sources of facts to build reasonable suspicion are basically unlimited as long as they are credible. The officer’s own knowledge and senses are an obvious source, but reasonable suspicion need not be limited to those. The officer may also use other sources of information. These include sources which can be revealed, such as verbal communications with other officers, information from identified reliable sources in the community, radio dispatches, police bulletins, “hot” sheets, etc. They also can include those which cannot be revealed such as anonymous tips, where facts have been corroborated, or criminal informants whose identities need to be protected.
In Illinois v. Wardlow 120 S.Ct. 673 (2000), the Supreme Court asserted that while unexplained flight from police by itself will not produce reasonable suspicion for a detention, the flight is a pertinent factor in developing that reasonable suspicion. In Wardlow, the fact that the defendant fled from police as they arrived in a high crime area was sufficient to justify the stop. There were previous decisions asserting flight as an exercise of the right to freedom of movement that, as a right, could not be used to build reasonable suspicion. Those cases have been superceded.
In another case, Florida v. J.L. 120 S.Ct. 1375 (2000), the Supreme Court upheld the basic requirements for investigative detentions and frisks as articulated in Ohio v. Terry (88 S.Ct. 1868 (1968)). It held that a Terry-style stop and frisk couldn’t be based entirely on an uncorroborated, non-predictive anonymous tip, even if it turns out that the tip was accurate. (see also Alabama v. White (1990)) The defendant in the case argued, among other things, that the officers had established the reliability of the informant by corroborating the appearance and location of the subjects, and that the danger presented by a firearm was sufficiently great to require a “firearm exception” to the Terry requirement of reliable reasonable suspicion. The Court rejected both arguments. Identification of the suspect addresses only one of the factual requirements for reasonable suspicion – identity of the accused – but not the issue of criminal involvement. And, while acknowledging the danger presented by weapons, the Court felt that a blanket exception opened the door for intrusive searches on the merest whim of the anonymous accuser. The Courts did leave open the possibility that anonymous tips regarding serious situations such as a bomb threat, or an armed person at an airport, or about a weapon in a school would be sufficient.
In State v. Bergmann (2003) the Missouri Supreme Court, building on Florida v. J.L. (2000), established that vehicle stops based on non-predictive anonymous tips (physical description and location only) are unconstitutional. Evidence found as the result of such a stop will be inadmissible.
Also see text - 2:9 (b)
d. Three general restriction on detentions:
Time - The suspect should only be detained for a reasonable length of time, during which reasonable suspicion is maintained or strengthened and during which the officer is engaged in potentially fruitful investigation. It must stop if reasonable suspicion disappears. It does not have to stop simply because the suspect asks to leave. A “rule of thumb” for a reasonable length of time (under normal conditions) would be 20 to 30 minutes.
Force - Only a reasonable amount of force -- the minimum actually needed to effect and maintain the detention -- should be used. Deadly force should never be used in a detention situation.
Movement - A detained person should not be moved, except for the safety of the officer or the suspect or to assure the security of the suspect. The suspect may, of course, be moved at his or her request or with his or her consent.
e. State v. Pfleiderer 8 S.W. 3rd 249 (1999) – held that use of handcuffs in a detention situation where the officer can not (or does not) articulate a reasonable justification for the handcuffing makes the detention a de facto arrest. It is presumed that use of handcuffs is associated with arrests. Officer will need to overcome that presumption by explaining why the cuffs were necessary.
f. see also note on 4c. above
g. Generally, Miranda is not required in a detention situation, unless the officer has created a situation that would look like custody to an objective observer. [See text: 6:6 starting at
bottom, which is based on OR. v. Mathiason 429 U.S. 492 (1977)]
h. The officer really can do nothing if the suspect refuses to answer questions, as a person cannot be compelled to give evidence against himself.
Some communities have “required identification” ordinances. In Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County (2004) USSC – Court held that state laws narrowly requiring that a suspect identify him/herself when stopped by an officer on reasonable suspicion are Constitutional. Supreme Court found no Fourth Amendment violation in such a request and no Fifth Amendment violation in this case, since there was no evidence that the suspect’s name itself was incriminating. The Court left open the possibility that it might be a Fifth Amendment violation in some other circumstances.
In the August 2004 issue of FrontLine Reporter, Attorney Gegeral jay Nixon stated, “Missouri has no law similar to Nevada’s. It is important to note that the Nevada statute solely was limited to requiring the individual to provide his name. Previous Supreme Court decisions have struck down statutes requiring individuals to produce “credible and reliable” identification. Such laws are only permissible if they limit the requirement to the suspect giving his name, not requiring a particular form of identification.
“Missouri does have a law making it a crime to refuse to identify one’s self as a witness to a crime (Section 575.190). Enforcement of that statute is more likely under this decision, but officers are strongly encouraged to discuss this issue with their local prosecutor before initiating an arrest or prosecution.”
5. a., c., f..- i. See handouts - “Contact, Detention and Arrest.”
b. See text - page 4:1 - 4:2 (A).
c. - d. See text - page 4:2 - 4:9 (B. & C.).
e. See text - page 4:2 (top).
f. - g. See text - page 4:9 - 4:11 (D).
You may use deadly force to effect and/or maintain an arrest if the following conditions exist:
The
person presents a threat of serious physical injury to you or another or
the person has committed a felony which involved the use of or threatened use of a deadly weapon and
the use of deadly force is necessary to effect or maintain the arrest (that is, deadly force is the minimum force necessary) and
a warning is given, if at all possible.
g. Full body search
h. Yes, Miranda is required.
6. a. See glossary definition of the term “reasonable suspicion for a detention.”
b. See glossary definition of the term “probable cause for arrest.”
c. Application of the proceeding information and examples from class.
7. These are the same as the requirements for the Anonymous Sources Exception to the Hearsay Rule.
See handouts - “Exceptions to Hearsay.”
8. See text - page
4:13 - 4:19 (F, G & H).
Note: in order to obtain a search warrant to arrest a suspect in a third party
premise in Missouri, you must have a felony search warrant.
9. See text – page 4:18 – 4:19 (6) for general discussion of pretextual arrests and detentions.
Regarding “pretext” issue raised on page 4:18 (middle) of the text: The Attorney General states in January 1999 issue of FrontLine Report (Vol.6 No.1, pg. 5) that Iowa v Knowles (1998) does not effect RSMo Sec. 544.216, which allows certified peace officers to make a full custodial arrest for traffic offenses, including infractions. AG states “officers have no reason to fear defense motions challenging the admission in court of evidence seized.” Therefore Missouri is not a state that adheres to the “pretext” doctrine.
Case law: Atwater v. City of Lago Vista (2001) – an officer may, at his/her discretion, make a custodial arrest of an individual for any criminal offense, even offenses that would only be punishable by a fine. RSMo 544.216 already gives this power to Missouri officers, as well as allowing them to arrest for non-criminal infractions and ordinance violations.
Arkansas v. Sullivan (2001) – expanded Court decision in U.S. v.
Whren (1996) which established that officers may arrest for any crime for which
they have probable cause with having to show that the arrest was a pretext for
a desire to investigate another crime.
In Sullivan, the officer actually arrested a subject on a minor traffic
violation after he realized that the driver might be a suspect in another
crime, with the intent to search the car incident to arrest in hopes of finding
evidence of that other crime.