CONTACT, DETENTION AND ARREST
Remember that the Fourth Amendment requires that all searches (of people and their belongings) and seizures be reasonable. The word seizure applies to people.
Differences between contact, detention, arrest. The difference is in how much freedom of movement remains. In a contact, the freedom of movement of the person stopped remains complete. In a detention, it is temporarily limited. In an arrest, it is taken away.
See handout page 24 for a comparison and rules regarding each.
a. A voluntary contact is not a seizure.
b. It is based on mere suspicion or a hunch.
c. No force is authorized.
d. No search can be conducted.
e. No Miranda required since the person is not in custody.
a. An investigative detention is a limited seizure, is temporary.
b. Reasonable suspicion is the minimum justification for a detention: suspect that criminal activity may be afoot and that the person stopped is involved.
c. Example: Match description of a person wanted, police officer’s experience, looks as if he might be committing a crime, furtive movements. 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, anonymous tips where the facts have been corroborated, or criminal informants who have been reliable in the past (Their identities can be protected.).
In a recent case, 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 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 Those cases have been superseded.
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 Terry v. Ohio. The Court held that a frisk cannot be based entirely on an uncorroborated, non-predictive anonymous tip, even if it turns out the tip was accurate. The Court 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.
d. For detention, time should be a reasonable length of time during which reasonable suspicion is maintained or strengthened. It must stop is reasonable suspicion disappears. A rule of thumb is 20 to 30 minutes. Force should only be a reasonable amount. Deadly force should never be used. Detained person should not be moved, except for safety of officer or suspect or with suspect’s consent.
e. Need to articulate a reason for using the cuffs, i.e., suspect was belligerent. State v. Pfleiderer, 8 S.W.3d 249 (1999), held that use of handcuffs in a detention situation where the officer cannot or does not articulate a reasonable justification for the handcuffing makes the detention a de facto arrest. It is presumed that the use of handcuffs is associated with arrests. Officers will need to overcome that presumption by explaining why the cuffs were necessary.
f. A frisk is authorized if the officer has reasonable suspicion to believe the person is armed and dangerous.
g. Miranda is probably required if asking guilt-seeking questions.
h. The officer can really do nothing if the suspect refuses to talk, cannot be compelled to give evidence against oneself. Some communities have "required identification" ordinances. These are of questionable Constitutionality.
a. Arrest is a complete physical seizure.
b. Picking up a suspect for questioning, apprehending someone who is breaking the law.
c. Probable cause is the minimum justification for an arrest.
d. You witnessed the crime, another person witnessed the crime, official report of a crime with description of suspect, etc.
e. You may keep a person arrested under surveillance that is as close and constant as your judgment dictates until safely transported to the station.
f., g. Can use reasonable force to maintain an arrest. You may use deadly force to effect an arrest or maintain one 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 AND
A warning is given if at all possible.
h. May do a full body search and grabbing area. In a car, passenger compartment.
i. Miranda is required if guilt seeking questions are asked.
a. Two issues that must be reasonably suspected to establish reasonable suspicion - Need facts and circumstances which would lead a reasonable person to suspect a crime was, is being committed or is about to be committed and the suspect is involved.
b. Two issues which must be believed to establish probable cause for arrest - Need facts and circumstances which lead a reasonable person to believe a crime has been committed and the suspect committed it.
The four factors that may be used to establish the reliability of information from a criminal informant:
1. The informant has given reliable information in the past
2. The informant is testifying against his or her own interests
3. The information provided by the informant is so detailed that it compels belief that the informant was witness to the incident
4. The officer has independently corroborated facts given by the informant.
Note that 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. See Entry into Private Places Instruction herein for rules for making arrests in public places, suspect’s residence and third party’s residence. Public - no search warrant needed, need probable cause for arrest. In suspect’s residence, if suspect has warrant and is inside, can go in. Otherwise, need serious felony freshly committed and lives in danger or evidence being destroyed. Otherwise need a search warrant. In a third party residence, need a search warrant unless a serious felony and lives in danger or evidence being destroyed.
Section 544.216 of the Revised Statutes of Missouri allows Missouri peace officers to make full custodial arrests for traffic offenses, including infractions. Officers have no reason to fear defense motions challenging the admission in court of evidence seized as no pretext issues apply. See generally Knowles v. Iowa, 525 U.S. 113 (1998) and Whren v. U.S., 517 U.S. 806 (1996).
Note that for this section, POST requires other topics be covered. We teach those topics at other places in the Constitutional Issues block and in Missouri Statutory Law instruction.