Chapter Six:

Arrests, Use of Force, and Responses to Terrorism

Rolando V. del Carmen

Arrests, Use of Force, and Responses to Terrorism

The Broad Picture: Seizures of Persons

– Seizure and the Fourth Amendment

– Arrest is just one type of seizure

Arrests, Use of Force, and Responses to Terrorism

The Broad Picture: Seizures of Persons

Contacts which are not seizures:

• General questions by police on the street to gather general information

• The police asking a driver to get out of a car after being stopped – Pennsylvania v. Mimms (1977)

• The police asking questions of bus passengers that they are free to refuse to answer – Florida v. Bostick (1991)

• The police riding alongside a person “to see where he was going” – Michigan v. Chesternut (1988) and asking questions of witnesses to a crime

Arrests, Use of Force, and Responses to Terrorism

The Top Ten Degrees of Intrusiveness in Searches and

Seizures of Persons

– Surgery to remove a bullet from a suspect’s chest– Anal and cavity searches – Arrest– Removal of blood in a hospital– Stationhouse detention– Stop and frisk– Searches of a passenger’s belongings in motor vehicles– Immigration and border searches– Vehicle stops in general– Roadblocks to control the flow of illegal aliens

Arrests, Use of Force, and Responses to Terrorism

The Appropriate Test for Determining Seizure

– Totality of the Circumstances

• Michigan v. Chesternut (1988)

– Reasonable Person

• United States v. Mendenhall (1980)

Arrests, Use of Force, and Responses to Terrorism

Arrest Defined

– The taking of a person into custody against his or her will for the purpose of criminal prosecution or interrogation

• Dunaway v. New York (1979)

Arrests, Use of Force, and Responses to Terrorism

Arrest Defined

– Forced Detention and Arrest

– The Length of Detention and Arrest

• United States v. Sharpe (1985)

Arrests, Use of Force, and Responses to Terrorism

The Elements of an Arrest

– Seizure and Detention• Actual Seizure• Constructive Seizure • California v. Hodari (1991)

– The Intention to Arrest• Berkemer v. McCarty (1984)

– Arrest Authority

– Understanding by the Arrestee

Arrests, Use of Force, and Responses to Terrorism

Arrests with a Warrant

– When a Warrant is Needed

• If the crime is not committed in the officers presence

• If the crime is committed in a private residence

• In home entries for minor offenses

Arrests, Use of Force, and Responses to Terrorism

The Issuance of a Warrant

– Complaint

– Neutral and Detached Magistrate

• Connally v. Georgia (1977)

• Lo-Ji Sales, Inc., v. New York (1979)

• Coolidge v. New Hampshire (1971)

Arrests, Use of Force, and Responses to Terrorism

The Contents of a Warrant

– “John Doe” Warrant

Arrests, Use of Force, and Responses to Terrorism

The Service of a Warrant

– Service within a state – Service outside a state

• Hot pursuit exception

The Time of the Arrest

The Possession and Expiration of a Warrant

Arrests, Use of Force, and Responses to Terrorism

Legal Authorization Other Than an

Arrest Warrant

– Citation

– Bench Warrant

– Capias

Arrests, Use of Force, and Responses to Terrorism

Arrests without a Warrant

– Felonies Committed in the Presence of Officers

• Sight

• Hearing

• Smell

• Touch

• Taste

Arrests, Use of Force, and Responses to Terrorism

Arrests without a Warrant

– Misdemeanors Committed in the Presence of Officers

– Crimes Committed in Public Places

Arrests, Use of Force, and Responses to Terrorism

When Exigent (Emergency) Circumstances are Present

– Possibility of Disappearance

– Hot Pursuit

When There is Danger to the Arresting Officer

Arrests, Use of Force, and Responses to Terrorism

What the Police May Do After an Arrest

– Search the Arrestee

• United States v. Robinson (1973)

– Search the Area of Immediate Control

• Chimel v. California (1969)

Arrests, Use of Force, and Responses to Terrorism

What the Police May Do After an Arrest

– Search the Motor Vehicle Even If the Initial Contact and Arrest of the Driver Took Place Outside the Vehicle

• Search the Passenger Compartment of a Motor Vehicle– New York v. Belton (1981)

• Use Handcuffs Subject to Department Policy

• Monitor the Movement of the Arrestee

• Search the Arrestee at the Place of Detention– Washington v. Chrisman (1982)

Arrests, Use of Force, and Responses to Terrorism

What the Police May Do After an Arrest

– When Exigent (Emergency) Circumstances are Present

• Possibility of Disappearance

• Hot Pursuit

Arrests, Use of Force, and Responses to Terrorism

What the Police Cannot Do During an Arrest

– Enter Third Party Residences, Except in Exigent Circumstances

• Steagald v. United States (1981)• Minnesota v. Olson (1990)

– Strip or Cavity Search an Arrestee Unless Justified by Reasonable Suspicion

• Kennedy v. Los Angeles Police Department (9th Cir. 1989)

Arrests, Use of Force, and Responses to Terrorism

What the Police Cannot Do During an Arrest

– Conduct a Warrantless Protective Sweep Unless Justified

• Maryland v. Buie (1990)

– Invite the Media to “Ride Along”

• Wilson v. Layne (1999)

Arrests, Use of Force, and Responses to Terrorism

The Announcement Requirement

– The General Rule: Knock and Announce Required

• Wilson v. Arkansas (1995)

– The Exceptions and Other Rules

– Blanket Exceptions (Drug Dealing Cases) - Unconstitutional

– The Knock and Announce Requirement and Property Damage by the Police

Arrests, Use of Force, and Responses to Terrorism

Other Arrest Issues

– Detaining a Suspect While Obtaining a Warrant• Illinois v. McArthur (2001)

– Arrests for Traffic Violations or Petty Offenses• Atwater v. City of Lago Vista (2000)

– Arrests for Offenses Not Punishable by Prison or Jail Time

– The Validity of a Citizen’s Arrest

Arrests, Use of Force, and Responses to Terrorism

The Disposition of Prisoners After Arrest

– Booking

– The First Appearance before a Magistrate

• County of Riverside v. McLaughlin (1991)

• Powell v. Nevada (1992)

– Bail

Arrests, Use of Force, and Responses to Terrorism

The Use of Force During Arrestt

– The Factors Governing Police Use of Force

– Nondeadly and Deadly force Distinguished

– The Rule on the Use of Nondeadly Force

– The Rule on the Use of Deadly Force

• Felony Cases• Misdemeanor

Arrests, Use of Force, and Responses to Terrorism

Responses to Terrorism

– The USA Patriot Act of 2001

– The USA Patriot Act of 2006

– The Law Creating the Department of Homeland Security

– The INS Registration Program for Foreigners

– Legal Issues Arising from Responses to Terrorism

• Hamdi v. Rumsfeld (2004)• Rasul v. Bush (2004)