4th class - february 3 2011

8/7/2019 4th Class - February 3 2011

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February 3, 2011 1

Preview of Coming Attractions

Remainder of Class structured as follows:

First test, next week, will cover exclusionary rule,exceptions, standing, probable cause, and arrest

related issues 2nd test will focus on the exclusions (situation in

which 4th Amendment not apply) and searchwarrant exceptions (car searches, emergencies,

consent, search incident to arrest, etc.) 3rd test will cover Miranda and right to counsel

issues


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February 3, 2011 2

More Preview

Next week will hand out reading assignments

for 2nd test (following test)

Need to get sign ups for cases for briefingpurposes for remainder of semester [43

students; approximately 60 cases]; need 5-6

per class; volunteers?

Extra credit?

Power points received?


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Brief discussion of test

You cant always get what you want, but ifyou try sometimes, you just might find, youget what you need! Mick Jagger, The Rolling

Stones 40 +/- questions: true/false; Multiple choice;

short answer; and short essay

Open book, open note, and open power point;no internet; BRING your blue books; and beon time!

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February 3, 2011 4

Search v. Arrest Warrant

RequirementReview 4th Amendment:

* Although no distinction in actual Amendment,

different rules have surfaced for searches andarrests

* Basically, must get a search warrant unless youcant (not have time, not practical etc.) Court

often states that exceptions to SW requirementjealously and carefully drawn (largely a mythnow replaced by increasing popularreasonableness clause)


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February 3, 2011 5

What about Arrests?

Are arrest warrants preferred or usuallyrequired? Are the exceptions to arrest warrantsjealously and carefully drawn like Search

Warrants? Answer in US v. Watson, CB @ 59 et. seq.

Facts

Issue Holding

Reasoning


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More Watson

What was prosecutor relying upon here to

justify warrantless arrest?

What was the general rule in most states?

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February 3, 2011 7

US v. Watson (contd)

First case Court squarely followed, as matter of

constitutional law, the common law rule

permitting warrantless felony arrest in public

EVEN when there is time to get a warrant Misdemeanor arrests were initially less clear

under Constitution: historically, only allowed

without arrest warrant if breach of peace type of

crime AND crime was committed in officerspresence i.e. witnessed the crime (not told by

someone else etc.)


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February 3, 2011 8

Current Arrest Rules

A warrantless arrest may be made for a felony in a

public place not committed in officers presence or a

misdemeanor committed in officers presence even

though there is time to get a warrant if probable causeexists that offense committed by person to be

arrested.

Exception: if arrest made in arrestees dwelling, a

warrant IS required absent exigent circumstances

i.e. emergency (more later)


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February 3, 2011 10

What about arrests in the home?

Payton v. New York, @ 92 CB et. seq.

Facts

Issue Holding

Reasoning


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February 3, 2011 11

Arrests in the Home

Payton v. New York (1980) - disallowed awarrantless, nonconsensual entry into suspects hometo make an arrest absent exigent circumstances

What issues did Court NOT consider in opinion? CB@ 93

Why are arrests allowed without warrant in a publicplace but not in the home? CB @ 96

What are exigent circumstances? CB @ 93; CB @

97; why not present here or in companion case? Arrest warrant IS valid for suspects home without

separate search warrant; why? CB @ 98


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What about dissent?

What did dissent state in Payton?

What restrictions did they believe existed before

arrest without warrant allowed in home?

What did Court decide in Wilson v. Arkansas

(1995)?; CB @ 112

Facts

Issue Holding

Reasoning

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More Wilson

Is Knock and Announce required by the 4th

Amendment?

Are there any exceptions? Is suppression then the remedy? [see earlier

lecture for discussion of Hudson v. Michigan

(2006); CB @ 352]

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When is an arrest made in the home?

Doorway arrests? Does it matter if arrestee comesacross the threshold? Or can officer arrest fromoutside by pulling across threshold? HB @ 187;

Note language in Payton CB @ 96: the FourthAmendment has drawn a firm line at the entranceto the house.

What about common hallways? HB @ 187

Homeless persons living under a bridge? HB @187

Hotel or Motel rooms? HB @ 188

Motor home? HB @ 188

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More Steagold

AW will NOT protect privacy interests of 3rd

party homeowner

armed solely with an arrest warrant for a single

person, the police could search all the homes ofthat individuals friends and acquaintances. HB@ 189

BUT can ARRESTEE object to his/her arrestunder Steagold facts? Explain standing in thesecircumstances

Note: there is an exception in both Payton andSteagold for exigent circumstances

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February 3, 2011 17

Exigent Circumstances

Both Payton and Steagold state exigentcircumstances would justify warrantless entry tomake arrest (emergency searches discussed morelater); couple of examples mentioned here

Warden v. Hayden (1967) Hot pursuit case discussedlater, generally if police have PC that suspect fled intodwelling may enter to arrest; armed robbery, 5 minutehead start

US v. Santana (1976) - applied hot pursuit to

vestibule retreat into home when saw police Certain crimes may not be serious enough to allow

warrantless entry , see Welsh v. Wisconsin (1984) @CB 102


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February 3, 2011 18

What if arrest is prohibited

by state law?

Virginia v. Moore, CB @ 63 et. seq.

Facts Issue

Holding

Reasoning


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February 3, 2011 19

Virginia v. Moore

What was Virginias law here?

Why then, did Court, not suppress evidence?

What if lower Courts decision was based on thestate constitution and not the federal constitution?

What about state statute?

Do need to have an arrest however; see Knowles

v. Iowa (1998) discussed later in which Court

disallowed a search incident to a traffic citation


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February 3, 2011 20

What if officer had ulterior motive

in arresting?

Whren v. United States, CB @ 77

Facts Issue

Holding

Reasoning


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More Whren

Know what pretextual means in this context

What did the law of this jurisdiction provide replainclothes officers in unmarked carsenforcing traffic laws? CB @ 80

Note that there are still two exceptions to thisrule and Court will not allow pretext stops or

searches, what are they? What does Court state about use of race to

make these stop or arrest decisions? CB @ 79

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What is Remedy for Bad Arrest?

Searches incident to arrest, statements by defendant

suppressed and release from jail; BUT

Assuming Statute of Limitations not run, can be

recharged; it is NOT grounds for dismissingcomplaint or precluding trial for defendant or voiding

subsequent conviction, Gerstein v. Pugh (1975)

Never suppress the person i.e. person never fruit of

the poisonous tree, see lecture 2; though physical

evidence from person could be suppressed


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Probable Cause Revisited Same as SW discussion earlier; hearsay can be

used; new test is totality of circumstances underIllinois v. Gates, old tests re Aguillar and Spinelli,

et.al. still relevant


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Can officers use information from

other officers?

* YES!

* Imputed Knowledge doctrine applies:knowledge of one law enforcement officer

considered knowledge of all* also called collective information; in otherwords, do not have to question officer to obtaininformation; presumed that officer information isshared by all

Application: radio messages, police bulletins,Whitely v. Warden (1971)[warrant case]; US v.Hensley (1985)[bulletin case]. PC must existhowever


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Can you arrest for offense in which

there could be no jail?

Atwater v. City of Lago Vista. CB @ 69 et.

seq.

Facts

Issue

Holding

Reasoning


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Atwater v. City of Lago Vista (2001)

Issue: 4th A. prohibit arrest for misdemeanor seatbelt violation punishable only by fine?

Statute (law) does allow arrest without warrant,but also allows citations in lieu of arrest

Defendant driving w/3 and 5 year old in front seatw/o seatbelts

Civil case so facts are as alleged by Plaintiff weve met before; youre going to jail; heard thatstory two hundred times; youre not goinganywhere


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February 3, 2011 27

Atwater (contd)

No insurance or license w/her b/c pursestolen day b/4

Arrest, handcuffed, booked, mug shot, in

cell for one hour b/4 magistrate released oncash bail (multiple charges but pleaded nocontest to no seat belt and paid $50)

42 USC 1983 civil rights lawsuit Argued common law required breach ofpeace for misdemeanor warrantless arrest


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February 3, 2011 28

Atwater Again

History not clear: nightwalker statutes allowedwatchmen to arrest anyone at night; Americanhistory also allowed some misdemeanor arrests

Fall back argument: officer cannot make custodial

arrest IF no jail could be imposed if conviction;Court said no b/c of interpretation problems ofjailable or fine only offenses andadministrative problems

Does agree officer used extremely poorjudgment; recommends legislative solutions; butalso no problem with arrest itself (notextraordinary)


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February 3, 2011 29

Atwater Reviewed

Majority not decide if 4th A. required in thepresence requirement for all misdemeanor arrests

Dissent: touchstone should be reasonableness; arrestconsequences are significant; could be held for 48hours b/4 magistrate reviews [explain]

Dissent would have intermediate position: citationonly unless officer can show reasonable suspicionthat full arrest necessary

This and earlier Search incident cases re trafficoffenses have caused legislative and Stateconstitutional remedies


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Atwater Deep Thought

Arrest! Need it be said that it is a breaking

point in your life, a bolt of lightning which

has scored a direct hit on you? That it is an

unassimilable spiritual earthquake.Each

of us is a center of the Universe, and that

Universe is shattered when they hiss at you:

You are under arrest. The Gulag Archipelago, A. Sohzhenitzyn


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Could This Happen Here?

North Dakota would not allow for seat beltviolations, but other non-jailable offenses,including non-criminal traffic and Infractions (fine

only, 1st

offense, crime 2d) E.g.s include speeding, modified motor vehicle,operating unsafe vehicle, among others

Predicate: Halting officer has good reason to

believe person is charged with these offenses(except speeding), or good reason to believeinadvisable to release upon promise to appear;also separate analysis for non-residents


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Still Interested?

Review 78 NDLRev 467 (2002), Atwater in North

Dakota: Soccer Moms Beware, Sometimes, written

by Professor Lockney, and Vogel atty, Mark Friese.

Google Atwater and will find many references to case(often called soccer mom case); H was ER Dr.;

$110,000 legal fees; sold house; borrowed $ from

relatives to finance lawsuit

4th class - february 3 2011

Documents