The Fourth Amendment

Protects the people’s right to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures

Requires that warrants to search places and to

seize people and things must be supported by

probable cause and must be issued on information

given under oath or affirmation

Admissibility of Hearsay at Suppression Hearing Before or During Trial

Rules 104(a); 1101(b)

– Admissibility of evidence determined by court

– Court not bound by rules of evidence, except for privileges

Cases on admissibility of hearsay:

– Brinegar v. U.S., 338 U.S. 160 (1949); Draper v. U.S., 358 U.S. 307 (1959); State v. Roberts, 276 N.C. 98 (1970); Melton v. Hodges, 114 N.C. App. 795 (1994)

Objective Standard in Evaluating Search or Seizure

Definition of seizure: reasonable person, innocent of criminal activity, in defendant’s position

Officer’s subjective view of whether encounter was search, seizure, investigative stop, arrest is irrelevant

Even if officer’s justification for investigative stop or arrest was invalid, it may be upheld if another justification existed

Cases– State v. Bone, 354 NC 1 (2001); State v. Peck, 305 NC 734

(1982); US v. Analla, 975 F2d 119 (4th Cir. 1992); US v. Taylor, 956 F2d 572 (6th Cir 1992); State v. Zuniga, 312 NC 251 (1982); Glenn-Robinson v. Acker, 140 NCApp 606 (2000); State v. Freeman, 307 NC 357 (1983); State v. Coffey, 65 NCApp 751 (1984).

Terry v. Ohio and later cases

Terry v. Ohio 392 U.S. 1(1968) – Frisk with reasonable suspicion is constitutional– Justice Harlan’s concurring opinion on stop issue

Adams v. Williams, 407 U.S. 143 (1972)– Investigative stop and frisk based on informant’s information

U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)– Investigative stop of vehicle with reasonable suspicion

Pennsylvania v. Mimms, 434 U.S. 106 (1977)– Order driver out of lawfully-stopped car without any justification

Delaware v. Prouse, 440 U.S. 648 (1979)– Random stop of car on highway for license or registration is

unconstitutional without reasonable suspicion – Court appears to approve roadblock type license checks and weight

station inspections Michigan v. Summers, 452 U.S. 692 (1981)

– Automatic authority to detain occupants of home while conducting search with search warrant, even if occupants outside home when officers arrive

Cases Based on Terry v. Ohio

U.S. v. Place, 462 U.S. 696 (1983)– Application of Terry to seizure of luggage with reasonable

suspicion of drugs inside– Seizure of luggage for 90 minutes to await drug dog was

beyond scope of seizure based on reasonable suspicion Michigan v. Long, 463 U.S. 1032 (1983)

– Application of Terry to search car for weapons with reasonable suspicion—”car frisk”

U.S. v. Hensley, 469 U.S. 221 (1985)– Application of Terry to stop of vehicle based on wanted flyer

(for robbery) from another jurisdiction U.S. v. Sharpe, 470 U.S. 675 (1985)

– Length of investigative stop (20 minutes) was proper in this case

– No rigid time limitation for investigative stops

Cases Based on Terry v. Ohio

U.S. v. Sokolow, 490 U.S. 1 (1989)– Reasonable suspicion is based on totality of circumstances

» Consideration of drug profile» Facts describing “ongoing criminal activity” not required

– Later case of United States v. Arvizu, 534 U.S. 266 (2002) Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990)

– DWI roadblock is reasonable Minnesota v. Dickerson, 508 U.S. 366 (1993)

– Frisk for weapons; “plain feel” is within “plain view” doctrine Whren v. United States, 517 U.S. 806 (1996)

– Officer’s motivation for stopping vehicle for traffic violation is irrelevant, if probable cause exists for violation

Maryland v. Wilson, 519 U.S. 408 (1997)– Officer who lawfully stopped vehicle may order passengers out of

vehicle without justification

Cases Based on Terry v. Ohio

Knowles v. Iowa, 525 U.S. 492 (1998)– Search of vehicle is not permitted incident to stopping vehicle

to issue citation to driver

Illinois v. Wardlow, 528 U.S. 119 (2000)– Defendant’s unprovoked flight on seeing officers and presence in

heavy drug trafficking area provided reasonable suspicion to stop

– Terry v. Ohio accepts risk innocent people may be stopped

Florida v. J. L., 529 U.S. 266 (2000)– Anonymous tip insufficient to support reasonable suspicion to stop;

Alabama v. White, distinguished

City of Indianapolis v. Edmond, 531 U.S. 32 (2000)– Checkpoint whose primary purpose is to detect illegal drugs is

unconstitutional

Seizure of a Person

Three levels of officer’s interaction with a person

– Interaction that does not constitute seizure

– Seizure that constitutes investigatory stop requiring reasonable suspicion

– Seizure that constitutes arrest requiring probable cause

Definition of a seizure: when a reasonable person would have believed that he or she was not “free to leave”– Modification of definition under California v. Hodari D.

(1991) and Florida v. Bostick (1991)

California v. Hodari D. (1991)

499 US 621, 111 SCt 1547, 113 LEd2d 690 Officer chasing suspect, suspect drops

object, and officer tackles suspect “Seizure” redefined Definition of seizure

– Applying actual physical force to suspect, or

– Suspect submitting to officer’s “show of authority”

Florida v. Bostick (1991)

501 US 429, 111 SCt 2382, 115 LEd2d 389 (1991) Officers boarding bus to ask consent to search for

drugs Passengers are not automatically seized because

officers boarded bus Court rejects “free to leave” standard in deciding

this case Test: reasonable person would feel free to decline

an officer’s requests or otherwise terminate encounter

“Reasonable person” standard presupposes an innocent person

Factors in Determining Reasonable Suspicion

Officer’s observations in light of officer’s training and experience

Information received from others Time of day or night High-crime area? Suspect’s location to criminal activity Suspect’s reaction to and flight from officer

– Illinois v. Wardlow, 528 U.S. 119 (2000) Officer’s knowledge of suspect’s past Suspect’s matching profile of criminal behavior

Whren v. United States (1996)

Facts: traffic stop by drug officers Is pretextual stop unreasonable under Fourth Amendment? Ruling: When probable cause for traffic violation: officer’s

motivation for making stop is irrelevant under Fourth Amendment– Reasonable suspicion for traffic violation; U.S. v. Knights, 534

U.S. 112 (2001); U.S. v. Dumas, 94 F.3d 286 (7th Cir. 1996) Stop for improper racial purpose: analyze only under Equal

Protection Clause of Fourteenth Amendment Motivation is relevant for: DWI or license checkpoint, inventory

search, or administrative search, which are not based on probable cause or reasonable suspicion– City of Indianapolis v. Edmond, 531 US 32 (2000)

– State v. McClendon, 350 NC 630 (1999) (adopting (Whren); State v. Hamilton, 125 N.C. App. 396 (1997); State v. Morocco, 99 N.C. App. 421 (1990) (no longer valid under Whren)

Driver’s License and Impaired Driving Checkpoints

Delaware v. Prouse, 440 U.S. 648 (1979); Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990); City of Indianapolis v. Edmond, 531 U.S. 32 (2000)

State v. Sanders, 112 N.C. App. 477 (1993) (SHP license check) State v. Barnes, 123 N.C. App. 144 (1996) (SHP DWI check) State v. Grooms, 126 N.C. App. 88 (1997) (Deputy sheriff

license check) State v. Foreman, 351 N.C. 627 (2000) (avoid DWI checkpoint) State v. Tarlton, 146 N.C. App. 417 (2001) (SHP license check) State v. Colbert, 146 N.C. App. 506 (2001) (DWI checkpoint;

advance plan for Alco-Sensor tests) State v. Mitchell, ___ N.C. App. ___ (11/19/02) (license check;

supervisory approval & written guidelines not required) G.S. 20-16.3A

Alabama v. White (1990)

496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 Reasonable suspicion to make investigative stop

vehicle for drugs Anonymous telephone tip

– Amount of detail in tip Anonymous caller’s prediction of future events Anonymous information and law enforcement

corroboration

– “Sufficient indicia of reliability”

Florida v. J.L. (2000)

529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 Anonymous telephone call

– Young black male standing at bus stop, wearing plaid shirt, and carrying gun

Officers go to bus stop and see male person matching description– Male person makes no threatening or unusual

movements Officer stops and frisks him Court’s ruling: information was insufficient to support

stop and frisk– Court distinguished rulings in Alabama v. White

(1990) and Adams v. Williams (1972)

Anonymous Information and Reasonable Suspicion

Pure anonymous telephone caller Anonymous caller giving some information about himself

or herself Officer’s in-person contact with unknown person Basis of source’s knowledge

» Direct observation? Amount of detail given Reporting past or present criminal activity Prediction of future behavior Corroboration by law enforcement officer Need for immediate law enforcement response—report

of person carrying bomb; erratic driving on highway; shooting in house

Anonymous Information

State v. Hughes, 353 N.C. 200 (2000) (drugs; insufficient) State v. Bone, 354 N.C. 1 (2001) (murder; sufficient) State v. Brown, 142 N.C. App. 332 (2001) (drugs;

insufficient) State v. Young, 148 N.C. App. 462 (2002) (armed robbery;

sufficient) State v. Allison, 148 N.C. App. 702 (2002) (armed robbery;

sufficient) US v. Wheat, 278 F3d 722 (8th Cir. 2001) (reckless driving

stop; sufficient)

What Constitutes Reasonable Suspicion: State Cases

State v. Butler, 331 N.C. 227 (1992) State v. Fleming, 106 N.C. App. 165 (1992) State v. Foreman, 351 N.C. 627 (2000) State v. Bonds, 139 N.C. App. 627 (2000)

– Reference to NHTSA website information State v. Watson, 122 N.C. App. 596 (1996) State v. Battle, 109 N.C. App. 367 (1993)

(collective knowledge)

Length of Time to Conduct Investigative Stop

Whether officer diligently pursued means of investigation likely to confirm or dispel suspicions quickly– But courts generally should not second-guess whether officer

should have used alternative investigative means Suspect’s reaction to officer’s stop Officer’s need to adjust response to what is happening Seriousness of crime Nervousness of suspect Stopping vehicles: license & registration check; motor vehicle

and criminal record check Need to investigate other violations of law Cases: U.S. v. Sharpe, 470 U.S. 675 (1985); U.S. v. Place, 462 U.S. 696 (1985);

State v. Jones, 96 N.C. App. 389 (1989); State v. Morocco, 99 N.C. App. 421 (1990); State v. Aubin, 100 N.C. App. 628 (1990); State v. Hunter, 107 N.C. App. 402 (1992); Rousselo v. Starling, 128 N.C. App. 439 (1998); State v. Falana, 129 N.C. App. 813 (1998); State v. McClendon, 350 N.C. 630 (1999); State v. Fisher, 141 N.C. App. 448 (2000); State v. Munoz, 141 N.C. App. 675 (2001)

Scope of Investigative Stop

U.S. v. Shabazz, 993 F.2d 431 (5th Cir. 1993)– Questioning unrelated to investigative stop are permissible

unless they prolong stop– During traffic stop, officer asks “Are any drugs or weapons

in your car?”– Other cases: U.S. Holt, 264 F.3d 1215 (10th Cir. 2001); U.S.

Childs, 277 F.3d 947 (7th Cir. 2002) State v. Kincaid, 147 N.C. App. 94 (2001)

– Questioning about another matter after traffic stop completed was permissible when defendant consented to questioning

Asking consent to search during stop– Ohio v. Robinette, 519 U.S. 33 (1996)

» Asking consent to search after valid detention has ended» Specific warning (“you are free to go”) is not required

Investigative Techniques During Investigative Stop

Ordering driver and passengers out of vehicle– Ordering them to stay in vehicle

Using force– Blocking suspect’s car with officers’ cars– Drawing weapon on suspect– Making suspect lie on ground– Handcuffing suspect

Questioning– State v. Benjamin, 124 N.C. App. 734 (1996) (Miranda

warnings not required) Moving suspect for safety and security reasons or

for identification by victim

Frisking People for Weapons

Reasonable suspicion of danger is generally required– Exception: dangerous crimes or crimes, such as drug

trafficking, associated with possession of firearms– Exception: execution of search warrant in nonpublic place

Factors in determining reasonable suspicion– Kind of crime for which person was stopped– Information from others that person armed and dangerous– Behavior of person to be frisked– Bulge in suspect’s clothing or observation of object there– Suspect’s prior criminal record and history of dangerousness

Objective test—officer’s subjective beliefs irrelevant Arrest of person and whether frisk of companions is automatically

permissible

Frisking People for Weapons

Cases

– State v. Pearson, 348 NC 272 (1998)

– State v. McGirt, 345 NC 624 (1997), affirming, 122 NC App 237 (1996)

Scope of frisk

– Plain feel rationale under Minnesota v. Dickerson, 508 US 366, 113 S Ct 2130, 124 LEd2d 334 (1993)

Plain Touch (Feel) Doctrine: Minnesota v. Dickerson (1993)

Officer must have justification to touch (feel) person or object– Officer’s authority to frisk person for weapons

Officer may not exceed scope of justification when touching (feeling) person or object– Exceeding scope of frisk for weapons

Incriminating character of object must become “immediately apparent” to officer– “Immediately apparent” is equivalent to probable cause

Cases: State v. Beveridge, 112 N.C. App. 688 (1993), aff’d per curiam, 336 N.C. 601 (1994); State v. Briggs, 140 N.C. App. 484 (2000) (felt cigar holder in defendant’s pocket—totality of circumstances); State v. Wilson, 112 N.C. App. 777 (1993); State v. Whitted, 112 N.C. App. 640 (1993); In re Whitley, 122 N.C. App. 290 (1996); State v. Benjamin, 124 N.C. App. 734 (1996) (“What is that” during frisk not subject to Miranda)

Search Incident to Arrest of Vehicle Occupant

Must be arrest; writing citation is insufficient– Knowles v. Iowa, 525 US 113 (1998)– State v. Fisher, 141 NCApp 448 (2000)

New York v. Belton, 453 US 454 (1981) Arrest of vehicle occupant Removal of occupants permitted before search Entire interior of vehicle Containers within interior of vehicle

– Cases: State v. Vancamp, 150 N.C.App. 347 (2002); State v. Andrews, 306 N.C. 144 (1982) ; State v. Cooper, 304 N.C. 701 (1982); State v. Clyburn, 120 N.C. App. 377 (1995); State v. Massenburg, 66 N.C. App. 127 (1984)

Search Incident to Arrest of Vehicle Occupant

Other occupants Excludes trunk of vehicle, based on this

justification

Other Permissible Searches or Seizures Without Probable Cause

Vehicle “frisk” for weapons based on reasonable suspicion– Michigan v. Long, 463 U.S. 1032 (1983); State v. Braxton, 90 N.C.

App. 204 (1988) Impoundment and inventory of vehicle

– South Dakota v. Opperman, 428 U.S. 364 (1976); Colorado v. Bertine, 479 U.S. 367 (1987); Florida v. Wells, 495 U.S. 1 (1990); State v. Phifer, 297 NC 216 (1979); State v. Peaten, 110 NCApp 749 (1993)

– Pretext may be an issue Community caretaking function

– Cady v. Dombrowski, 413 U.S. 433 (1983) Checking VIN on vehicle

– New York v. Class, 475 U.S. 106 (1986) Protective sweep of home

– Maryland v. Buie, 494 U.S. 325 (1990)– Warden v. Hayden, 387 U.S. 294 (1967)

Is There “Custody” under Miranda During Investigative Stop?

State v. Benjamin, 124 N.C. App. 734 (1996) Berkemer v. McCarty, 468 U.S. 420 (1984)