Chapter Six – Arrests, Use of Force, and Responses to Terrorism

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


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 buss 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


The Appropriate Test for Determining Seizure– Totality of the Circumstances

• Michigan v. Chesternut (1988)

– Reasonable Person • United States v. Mendenhall (1980)


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)


Arrest Defined– Forced Detention and Arrest– The Length of Detention and Arrest

• United States v. Sharpe (1985)


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 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.


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)


The Contents of a Warrant – “John Doe” Warrant


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


Legal Authorization Other Than an Arrest Warrant – Citation– Bench Warrant– Capias


Arrests without a Warrant – Felonies Committed in the Presence

of Officers• Sight• Hearing • Smell • Touch • Taste


Arrests without a Warrant – Misdemeanors Committed in the

Presence of Officers– Crimes Committed in Public Places


When Exigent (Emergency) Circumstances are Present – Possibility of Disappearance– Hot Pursuit

When There is Danger to the Arresting Officer


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)


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)


What the Police May Do After an Arrest– When Exigent (Emergency)

Circumstances are Present • Possibility of Disappearance• Hot Pursuit


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)


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)


The Announcement Requirement– The General Rule: Knock and

Announce Required• Wilson v. Arkansas (1995)

– The Exceptions and Other Rules– Blanket Exceptions Unconstitutional– The Knock and Announce Requirement

and Property Damage by the Police


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


The Disposition of Prisoners After Arrest– Booking – The First Appearance before a

Magistrate• County of Riverside v. McLaughlin (1991)• Powell v. Nevada (1992)

– Bail


The Use of Force During Arrest– 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


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)

Documents

Chapter Six – Arrests, Use of Force, and Responses to Terrorism