Arrest ©

• Probable Cause• Terry Stop is not necessarily an unreasonable

seizure• An Arrest occurs when the subject submits or

PO takes actual physical control• Seizure is unreasonable

– PO lacks reasonable grounds for seizure• Lacks PC• Unable to articulte facts to support reasonable suspicion

– PO failed to obtain a AR warrant when one was necessary (arrest inside home)

– PO uses excessive force

Consequences of Illegal Arrest ©

• Exclusionary Rule

• Lawsuit under 1983 or State Law

• PO’s arrest

Three Types of Citizen Encounters ©

• Voluntary Encounters/Consensual

• Terry Stops/Investigative

• Arrests

Free to Leave ©• Time and place• Number of POs• PO speaks in authoritarian voice• Uses overbearing or threatening language• PO touching subject• Po surrounding suspect• Po obstructing path of exit • Draw a weapon• PO tells subject they are a suspect• Suspect is lone or with others• Did PO tell suspect they are free to leave• Barricades or roadblocks• Firing weapon or firing warning shot• Yelling stop or freeze• Handcuffing or grabbing• Grabbing car keys or DL

PO/Subject Participation ©

PO’s level of cognition • Hunch• Reasonable suspicion• PC

Subjects participation• Choice• Somewhere in between• No Choice

Informant ©

• Someone who wishes to remain anonymous or did they identify themselves

• Provides detailed account of criminal activity they observed

• Provides a description sufficient to enable police to identify subject

• When tip carries low reliability– Police must corroborate information independently

such as predicting subjects actions• Info from other POs is reliable for PC but will be

excluded if original PO was inaccurate.

Terry/Investigative Stop ©

• Communicate with others to verify subjects explanation• Computer check• Show-up identification• Finger print detainee• Bring in the Narco Dogs• Request permission to

– Conduct Search– Administer Breathalyzer– Perform other procedures to further investigation with permission

NO MIRANDA WARNINGS

Terry /Investigative Stop No/Nos ©

• Taking subject to police station• Searching subject for anything other than a

weapon• Displaying weapon, using handcuffs or placing

subject in to squad car unless these measures are necessary for safety

• Moving the subject to a second location when the move in not necessary to further investigation or safety

• Investigating matters beyond the scope of the stop for which the officer lacks RS

US v. Place ©

“Do nothing that is more intrusive than necessary to accomplish the purpose of the stop, having due regard for safety.”

90 minutes is generally to long for a terry stop.

Traffic/Vehicle Stops ©

• All vehicle stops = seizure• PC to make traffic stop/RS to stop motorist for

investigation• PO cannot randomly stop motorists for DL or

Registration Checks– Roadblocks are not random in that they are

authorized and regulated by police management prior to being instituted

• Pretextual traffic stops are authorized and subjective reasons are irrelevant

What Can PO Do During Traffic Stop ©

• Order motorist and passengers out of the vehicle and remain outside during stop

• Ask if they have weapons in vehicle• Visually look inside vehicle & shine flashlight• Run criminal background check• RS that occupants are armed and dangerous to frisking

occupants & searching passenger compartment • Asking about drugs in vehicle courts have found is

productive use of downtime during traffic stop• De-escalating traffic stop into a voluntary encounter is

acceptable• Physical arrest for traffic violation is OK but no arrest for

traffic citation• Racial profiling is not OK

A Constitutional Arrest ©

• Terry v. Ohio creates a distinction between an arrest and a defacto arrest

• Prompt review of a warrantless arrest– 48hours– Preliminary Hearing in Cook County

• PC for arrest• PC for Search Warrant = Probability that

evidence of criminality, or contraband, is located on the premises

Specific Articulable Facts to Establish PC ©

• Physical Evidence• Info from other Law Enforcement Agencies• Police Records• Eyewitnesses• Victims• Informants• Rational Inferences based on experience• Furtive movements• False or Improbable answers

Warrants ©

• Person to be seized must be described with particularity

• To arrest someone in their own home– Need an Arrest Warrant unless– Exigent circumstances

• To arrest someone at someone elses home– You need a SW for the home and an AW for the

person

• Knock and Announce

Exceptions to the SW Requirement ©

• Exigent Circumstances (only for serious offenses)– Endangered lives– Enable suspect to escape– Lend to evidence destruction

• Hot pursuit

Interrogations and Confessions

FIFTH AMENDMENT

No person shall be … compelled in any criminal case to be a

witness against himself.

Interrogations and Confessions

Constitutional Implications •4th = Exclusionary rule•5th = Privilege against self

incrimination•6th = Right to Counsel •5th = Federal Due Process•14th = State Due Process

Confessions

• Need to Voluntary

• So that they can be considered trustworthy

• Incriminating statements elicited during consensual investigative techniques are always admissible

Three Phases of a Criminal Case

• Investigative Questioning

• Custodial Interrogation

• Prosecutorial

Torture

• Violates the “Free & Voluntary Rule”

• Confessions or inculpatory statements obtained by law enforcement by coercion in violation of the “free & voluntary rule” will be suppressed to:– Protect against convictions using unreliable

evidence– Preserve the suspects freedom of choice– Deter PO from intolerable interrogation tactics

Two Part “Voluntary Test”

• Part One = Source of Pressure (Has the government exerted pressure sufficient to exclude voluntariness)– Beatings & guns to the head are coercive and

not voluntary

• Part Two = What impact did this pressure have on the suspect

Less Coercive Means

• Necessitate and examination of the totality of the circumstances– Pressure exerted by the police– Suspects degree of susceptibility– Conditions in which the interrogation took

place

Pressure exerted by the police• Torture, beatings, and the gun to the head are inherently coercive and are not

allowedCoercion Can Also Include

– Threats– False Promises– Trickery– Deceit– Psychological Coercion– Angry Lynch Mob– Arresting Innocent Members of the Suspects Family– Taking Children Away– Promising Confession Will Prevent Prosecution– Promising Leniency when PO is unable to affect outcome

• PO is allowed to make truthful representations about suspects legal predicament• PO can tell suspect his cooperation will be mentioned to the prosecutor • PO can tell suspect he will encourage the prosecutor to be lenient

CONFESSIONS MUST BE PROVEN VOLUNTARY BY A PREPONDERANCE OF THE EVIDENCE

Suspects Degree of Susceptibility

Conditions Under Which the Interrogation Took Place

4th Amendment Exclusionary Rule

• If Search is Unconstitutional

• If Arrest is Unconstitutional

• If Investigative Stop is Unconstitutional

Then confession is excluded and any evidence which is “fruit of the poisonous tree” will be excluded

Compulsory Self Incrimination

No person … shall be compelled in any criminal case to be a witness against himself

• Testimonial evidence is controlled by the 5th Amendment

The right of the people to be secure in their persons … against unreasonable searches … shall not be violated

• Physical Evidence is controlled by the 4th Amendment and is frequently admissible against the interests of an arrestee/defendant

4th Amendment Protection Against Unreasonable Searches

Self IncriminationThree areas which could impact a court’s finding that

evidence seized from an arrestees person or physical appearance was obtained in an unreasonable manner

• Bodily movement– An arrest must be constitutional

• Bodily privacy– Thing to be seized in search must be publicly viewable, cannot

view naked body for evidence

• Body Integrity – Blood– What was the reason for initial seizure or any additional seizures

Testimonial Self Incrimination

• Perjury v. Contempt

• Also applicable outside of a court room in police interrogations– Right to remain silent– Privilege against answering self incriminating

questions– Individuals have the right ANYWHERE not to

answer questions that would tend to incriminate

Grand Jury

• You are compelled to appear under penalty of contempt

• Any question which might have a tendency to incriminate you do not have to answer

Testimonial Self Incrimination

• Does not extend to that which was made voluntarily before criminal activity became apparent– Journals– Writing– Records

• Subpoena Deuces Tecum– Used to compel the production of certain items– Challengeable because production could eventually

lead to evidence of crime.

Compelling Testimonial Evidence

• Must create a risk of being convicted of a crime.

• Already tried for the crime convicted or acquitted

• Absolute or Transactional Immunity

• “Use” immunity

• Binding on State and Federal prosecutions

Invoking 5th Amendment Right

• Defendant's decision not to testify is final and cannot be used against him/her

• Taking the witness stand revokes the privilege

• Jury cannot be told defendant invoked the privilege

• 5th Amendment Privilege does not extend to other types of proceedings

Appearance and Body Evidence

• Exposed to public scrutiny– Handwriting – Photos– Fingerprints– Voice Samples– Field Sobriety Tests

• Evidence not seized in a reasonable manner– Naked body– Blood samples– Surgically removed bullet– DNA samples

Compulsory Production of Appearance Evidence

• During Terry Stop– Transport a short distance for show-up– Never to police station– Fingerprints and/or photo’s OK– Illegal arrest taints appearance evidence

Intrusive Body Searches

What is reasonableness for 4th Amendment Searches below a suspects skin surface

• Government need for evidence exceeds the intrusive nature into suspects privacy or bodily integrity

• Clear indication desired evidence will be found• Search warrant or exigent circumstances• Procedure to retrieve Evidence is reasonable

and the procedure is performed in a reasonable manner

SW Requirement

• Penetrating the body’s surface• Saliva, urine, semen or pubic hair samples• Other bodily tissue or fluids• Manually inspecting rectal or genital cavities• Anything which would cause sever pain or

discomfort• Rick to health• Intensive humiliation

Exigent Circumstances

• Blood, breath or urine samples in DUI cases• Gunshot residue test• Reaching into mouth (“mouth is not a sacred

orifice”)

• Stomach pumping is OK if less intrusive means are not available

• Strip Searches and body cavity searches must be based on the reasonable suspicion that search will produce drugs, weapons, or contraband (In Illinois controlled by Statute)

6th Amendment Right to Counsel

• In all criminal prosecutions the accused shall enjoy the right … to have the assistance of counsel

– To avoid unjust convictions– To bring effectuation to the rights of the

Defendants who might not know about them without attorney

Guideon v. Wainwright

• Appointed Counsel in Felony Cases

• Appointed Counsel is now provided to everyone who cannot afford an attorney if there is jeopardy of imprisonment

• But not if punishable by fine only

Conduct of the Police

• Once prosecution has been initiated no contact by police with the subject/arrestee unless attorney is present or knowing & intelligent waiver

• Juveniles can only waive their right if parent, youth officer, or counsel

Counsel is Present

• To observe constitutional requirements are being complied with and raise objections if they are not in– Line-ups– Show-ups– Custodial Arrests

• Consultation in Private• Atty call the shots on participation during interrogation• Atty decides which answers client answers• PO must grin and bear it• No taping or listening in on atty/client conversations

Use of Force/Deadly Force in Making a Seizure ©

Use the “reasonable officer standard” and force should be examined from the perspective of the precise moment the decision to use it is made.

Use for these three reasons only:

• Self Protection and to protect others

• Overcome resistance

• Prevent escape

Tennessee v. Garner ©

Deadly force should not be used to Seize a fleeing felon suspected of committing a non-violent crime.

Deadly force should be used only when:• PO, or someone else, is in danger of threat likely

to cause death or great bodily harm (self defense or the defense of others)

• Belief that arrest will be defeated by using a gun or other deadly weapon

• Escape of person to be arrested will endanger the public

Federal Criminal & Civil Remedies for Unconstitutional Conduct

• Title 42 USC Section 1982– Under Color of State Law

Immunity

• Absolute Immunity– Judges– Legislators– Prosecutors– Statements made within the context of a

judicial hearing

Immunity

• Qualified Immunity– Violation was not clearly established at time of

the act– A reasonable public official confronted with

these facts could have believed that his of her conduct conformed to the relevant standard.

Immunity

• State Tort Immunity– Willful and Wanton Misconduct– Conscious Disregard for the Safety of Others

Factors in Determining Reasonablenessin Police Use of Force Cases

• Severity of crime

• Suspect poses an immediate threat

• Resisting arrest or attempting to flee

Mental State for Excessive Use of Force for Different B of Rs Applications

• Police Officers Use of Force is examined by the courts using a reasonableness standard necessitated because this is a seizure and therefore the 4th Amendment Controls. “The right of the people to be secure in their persons … against unreasonable … seizures, shall not be violated…”

Mental State for Excessive Use of Force for Different B of Rs Applications

• Correctional Officers’ Use of Force is examined by the courts using a willful and wanton standard necessitated because excessive force after conviction is punishment and therefore the 8th Amendment Controls. “(C)ruel and unusual punishment (shall not be) inflicted.”

• Cruel and unusual indicates intentional behavior.

Police Officer in Liable Under Sec. 1983

• If their comrades commit brutality and they take no action to stop it.

Liability of Private Individuals Based on Section 1983

• Act in concert with police.

• Act under State compulsion or with significant State encouragement

• Perform a public function (private corporation operating State prison.)

Criminal Responsibility Title 18 USC 242

• Act under color of law (not just State Law)

• Possessed a willful intent (mental state)

• Violated a constitutional right (that has been)

• Previously made specific through judicial decision.

LESS THAN 2% OF CASES ARE PROSECUTED

14th Amendment

• … nor shall any State deprive any person of life, liberty, or property without due process of law: nor deny to any person within its jurisdiction the equal protection of the laws.

Protection Afforded by the 14th Amendment

• Substantive Due Process – Culpable Action DeShaney v. Winnebago

County Department of Social Services = No constitutional duty of the public official to protect the public from harm except:

• Discriminatory Denial of Police Protection– Jeffrey Dahmer

• Duty to Protect Persons in Custody – People are no longer capable of taking care of themselves

– Kneipp v. City of Philadelphia

Equal Protection of the Law

• Deliberately treating one person differently from another because;– A person’s membership in a protected class– A desire to punish the person for exercising a

constitutional right– Malicious intent to injure the person out of

spite.

Law Enforcement Professional’s Constitutional Rights in the Workplace

• 1st Amendment Rights– Limited rights after Garcetti v. Ceballos

• 4th Amendment Rights– Limited in employment case

• 5th Amendment Rights– Garrity