THE NATIONAL

A D V A N C I N G J U S T I C E T H R O U G H J U D I C I A L E D U C A T I O N

EX: FOURTH AMENDMENT TRAINING FOR NM MAGISTRATES WB/KZ DECEMBER 6-9, 2010

ALBUQUERQUE, NM

JUDICIAL COLLEGE

SEIZURES: STOPS & ARRESTS/VEHICLE STOPS/JUSTIFICATION FOR EACH

DIVIDER 6

Professor Thomas K. Clancy OBJECTIVES: After this session you will be able to:

1. Identify when a seizure occurs;

2. Distinguish between stops and arrests;

3. Examine types of vehicle stops, including checkpoints; and

4. Examine the standards of articulable suspicion and probable cause.

REQUIRED READING: PAGE 1. Thomas K. Clancy, Defining “Seizure” (Dec. 2010) [NCJRL PowerPoint].......................1

2. Thomas K. Clancy, Justification for Stops & Arrests (Plus Informants) (Dec. 2010) [NCJRL PowerPoint] .......................................................................................7

defining "seizure"

Thomas K. ClancyDirector

National Center for Justice and the Rule of Law

The University of Mississippi School of Law

applicability and satisfaction

1. Does the 4th Apply?

"Search"

"Seizure"

2. Is it Satisfied?

[3. Remedies?]

IMPORTANCE OF FINDING THAT A "SEIZURE" HAS OCCURRED

"Seizure"

• triggers applicability of Fourth Amendment and NM constitution

• if NO SEIZURE --- no EXCLUSION

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Two Types of Seizures:

Stops:brief detentions

Justified: reasonable belief person is committing,has committed, or about to commit crime

Arrests:

prolonged seizures: usually involving trip to police station

Any seizure exceeding stop = arrest

Justified: probable cause to believe that person has committed, about to commit, or is committing crime.

when does a seizure occur?

two ways Seizure can occur

#1 physical: two elements

a. officer PHYSICALLY TOUCHES suspect

• does NOT have to gain control of suspect

• mere physical contact

b. with intent to seize person

• intent measured objectively

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Physical seizures: seizure when shot

Archuleta v. LaCuesta, 988 P.3d 883 (N.M. 1999)

NM example

#2 show of authority: two elements

a. SHOW OF AUTHORITY demonstrating person is not free to leave or decline officer's requests

b. person SUBMITS to show of authority

rejected in NM

fourth amendment

NM constitution

• NO submission required

• State v. Garcia, 217 P.3d 1032 (N.M. 2009):

seizure occurs at point reasonable person does not feel free to leave

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What Constitutes Show of Authority?

TEST: Based on

• all circumstances surrounding encounter,

• did police officer's conduct communicate to reasonable person

• not free to decline officer's requests or otherwise terminate encounter?

SHOWS OF AUTHORITY:

• ordering person to "halt" -- "freeze" -- "stop"

• ordering person to answer questions

• turning on police's car's siren or emergency lights

• pointing weapon at person

• roadblock

NM example

juvenile seized when officer ordered to take his hands out of his pockets

State v. Child, 237 P.3d 771 (N.M. App. 2010)

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NOT SHOWS OF AUTHORITY:

• merely approaching person in public place

• identifying oneself as police officer

• asking person if willing to answer questions

• merely asking questions

State v. Gutierrez, 162 P.3d 156 (N.M. 2007)

Jason L., 2 P.3d 856 (N.M. 2000)

• police do not need any justification to approach person and ask that individual questions

• seizure does not occur so as long as

(1) officer does not convey message that compliance with his request is required or

(2) circumstances do not cause reasonable individual to believe that he not free to refuse compliance and to disengage or leave

What Constitutes Submission:

compliance with officer's show of authority

EX -- submission:

Motorist stops car in response to police siren orflashing lights of police car following him.

EX -- NO submission:

* Suspect runs away

* Active resistance ---- use of physical force by suspect

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Suspect Who Throws Evidence

• If stop occurs before evidence thrown, evidence cannot be used to justify stop

• If evidence thrown before stop, officer can seize object and use object to justify stop

California v. Hodari D., 499 U.S. 621 (1991)

When does seizure occur: summary

Physical

1. officer PHYSICALLY TOUCHES suspect

2. with intent to seize person

does NOT have to gain control over suspect --- mere physical contact

Show of Authority

1. SHOW OF AUTHORITY demonstrating person is not free toleave / decline police requests

2. NM Rule -- NO SUBMISSION needed

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Justifications for stops & arrestsplus informants

THOMAS K. CLANCYDirector

National Center for Justice and the Rule of Law

The University of Mississippi School of Law

Amendment IV

Reasonableness clause:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated,

Warrant clause:

and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, andparticularly describing the place to be searched, andthe persons or things to be seized.

Fourth Amendment Satisfaction

What is reasonable?

Stops:

need articulable suspicion person is engaged in criminal activity

Arrests:

need probable cause person is engaged in criminal activity

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Objective Standard

1. Subjective motivation irrelevant:

Justification for seizure measured objectively.

When: rejects inquiry into officer's subjectiveintent --- stop for observed traffic violation valid even if officer had another motivation

2. "Reasonable" officer standard:

Must show that reasonable officer would have believed crime occurring – mere subjective belief of officer that crime occurring not enough

Police officer on traffic control duty. Decides to stop speeders on

Monday --- if white

Tues --- if black

Wed --- if Asian

Thurs --- if out-of-state tags

Friday --- if "Palin 2012" sticker

Sat --- if hunch drug dealers

these are all pretextual actions !

Role of motivation in measuring "reasonableness"

Racial targeting:

stop based solely on race – no crimeoccurred

Profiling: stop based in part on a profile

Pretextual actions:

stop based on reasonable suspicion / probable cause -- but actually motivated by other reasons

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discrimination against offenders

Does Fourth Amendment provide protection?

Measure police officer intent objectively:

Does officer have objective justification for actions based on facts known to her?

Whren

NM: Pretextual Stops

rejects Whren and will suppress evidence, even if a technical violation of the traffic law, when true reason for stop lacks legal sufficiency

State v. Ochoa, 206 P.3d 143, 149 (N.M. App. 2008)

stop of defendant, who was driving away suspected drug house, for seatbelt violation pretextual and unreasonable under NM Constitution

NM procedure on pretexts1. stop justified objectively but defendant claims pretext

2. court decides if officer's motive for stop unrelated to objective existence of reasonable suspicion or probable cause

3. defendant burden to show pretext based on totality of circumstances

4. If defendant shows sufficient facts indicating officer had unrelated motive not supported by reasonable suspicion or probable cause, then rebuttable presumption stop pretextual

5. burden shifts to state to establish that, based on totality of circumstances, even without that unrelated motive, officer would have stopped defendant

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What is the meaning of

reasonable suspicion / articulable suspicion

probable cause

50 50.000010

PreponderanceOf evidence

ClearAnd Convincing

BeyondReasonableDoubt

ProbableCause

?? ? ?100

Levels of Certainty

ArticulableSuspicion

When Is Arrest Justified?

Need Probable cause to arrest.

PC: fair probability person committed crime

based on factual, practical considerations of everyday life

more than "bare suspicion"-- less than what would justify conviction

Brinegar

no "numerically precise degree of certainty" BUT less that preponderance std

Illinois v. Gates

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Reasonable Suspicion

More than “hunch” “some minimal level of objective justification” considerably less than preponderance of evidence

amount of info available to officer need not be great:

Ill. v. Wardlow (unprovoked flight of suspect in high crime area)

U.S. v. Arvizu (mechanical waving by children, etc., in minivan in response to presence of border patrol agent)

When Is Stop Justified?

NM uses same reasonable suspicion standard

State v. Funderburg, 183 P.3d 922 (N.M. 2008)

commonsense

nontechnical concept

officer must articulate reason, beyond mere hunch, for belief that person committed criminal act

Obtaining Reasonable Suspicion

Whole Picture:

Sokolow: factors, examined separately, can be "quite consistent" with innocent behavior but, when examined together, can still "amount to reasonable suspicion

Particularized:

specific info relating to particular individual

Objective:

Identify facts about suspect and state why those facts aroused suspicion

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Typical Sources of Information

Location of stop

Suspect’s initial actions upon being observed:furtive behavior or flight prior to stop

Responses to police’s inquiries prior to stop

Police expertise in evaluating circumstances

Personal knowledge of police

Information provided by others

Illustration of reasonable suspicion std

Terry v. Ohio

the classic

Dunlap:probable cause to arrest?

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DunlapNorth Philly, May 4, 2001. Officer Sean Devlin, Narcotics

Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He'd made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.

Informant Tips

totality of circumstances Gates

Old Test:separately had to establish basis of knowledge andreliability of tipster Spinelli

Some Factors in totality: tip itself: detail; first-hand information; predictions

informant's ID: looking for indicia of reliability

corroboration:-multiple tips-innocent details-info about suspect (ex) prior convictions

NM: informant tips

rejects totality of circumstances test to support probable cause

requires separate findings of reliability of informant and her basis of knowledge

keeps Aguilar-Spinelli test

State v. Cordova, 784 P.2d 30 (N.M. 1989)

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Anonymous Tips

Florida v. J.L., 529 U.S. 266 (2000):

anonymous tip insufficient to justify stop if corroborateonly

person's race location dress

must show reliable as to illegality of person's actions--- not just ID of person

types of vehicle stops

random stops: not legal

for traffic violations: need reasonable suspicion of violation

for crimes: need reasonable suspicion of crime

DUI checkpoints -- permissible based on 8 factors

1. role of supervisory personnel2. restrictions on discretion of field officers3. safety of motorists and field officers4. reasonable location of roadblock5. time and duration of roadblock6. indicia of official nature of roadblock7. length and nature of detention8. advance publicity

Las Cruces v. Betancourt, 735 P.2d 1161 (N.M. 1987)

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factors applied:State v. Madalena, 908 P.2d 756 (N.M. App. 1995)

1. location /procedures approved by supervisory personnel

2. field officers -- no discretion: told to stop every vehicle

3. orange pylons, special stop signs and room for safe-stopping distance, six police cars with lights flashing and Batmobile made roadblock visible

4. location chosen based DWI-related accidents/fatalities in area

5. between 12:00 -- 3:00 a.m. on Saturday morning

6. officers in uniform, orange reflective vests, six police cars with lights flashing

7. detention -- no more than five minutes per vehicle

8. press releases to Albuquerque Journal, Albuquerque Tribune, and Associated Press

DUI checkpoints -- some discretion

State v. Duarte, 149 P.3d 1027 (N.M. App. 2006)

can deviate from script and ask limited number of unscripted questions

"Have you been drinking tonight?" -- not within instructions to "approach and greet everyone in the same manner"

breach of procedure too insubstantial to constitute constitutional harm

vehicle stops at border checkpoints

State v. Cardenas-Alvarez, 25 P.3d 225 (N.M. 2001)

initial stop -- need no suspicion

prolongation prohibited under NM law after motorist documents reviewed & questions regarding citizenship and immigration status answered, unless reasonable suspicion of criminal activity

traffic congestion may require referral to secondary without offending rule

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Scope of Permissible Stop

only as long as necessary to investigate officer's suspicions

VS.

reasonably related in scope to circumstances which justify stop in first place

_________________________________________

NO RIGID TIME LIMIT

KEY INQUIRY: is length of time reasonable in light of purpose of stop?

“Two Stop” Scenarios

Once purpose of original stop satisfied, can no longer detain suspect unless another valid reason for detention.

EXAMPLE:

stops car for speeding violation

suspects driver is drug courier

gives driver ticket but continues to detain until drug-sniffing dog arrives

NM: Arrests for minor crimes

police cannot arrest, even if probable cause to do so, for crimes where no jail time authorized

State v. Rodarte, 125 P.3d 647 (N.M. 2005)

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