Work Smarter NOT Harder

4th Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Always Changing - Evolving

Stop Investigatory in nature (is, has, about to be)

All Stops (Person or Car) are “SEIZURES”

Must articulate that which rises to R/S

Time?

Use of Force to accomplish

Frisk Distinct and separate action from stop

To protect officer and bystanders Not to discover evidence

Limited to “pat down” for weapons

Not automatic, must show “reasonably suspect subject is armed/dangerous” FEAR is the magic word

Tier 1 – Consensual Contact

Hunch Just a standard conversation Officer retains NO powers Can you pat down for weapons? Citizen is free to leave Citizen does not have to provide ID

Tier 2 – Investigatory Stop/Terry Stop/

You must have reasonable suspicion a crime is being committed, has been committed, or will be committed.

Suspicious Vehicles Suspicious Persons DuComm generated call – sometimes! In Park After Hours Criminal Violation Ordinance Violation

Officer Powers in Tier 2

Order occupants IN and OUT of vehicle To keep hands visible and in sight

Demand IDTraffic ViolationReasonable suspicion (driver, passenger,

etc)Request ID of Passenger if no RS

Maryland v. Wilson, 519 U.S. 408 (1997). 

Right to Order Passengers In and Out of Vehicles

Brendlin v. California Passengers are seized as part of traffic stop or

investigatory stop

State v. Williams, 590 S.E.2d 151 (Ga. App. 2003); State v. Smith, 683 N.W.2d 542 (Iowa 2004); People v. Jackson, 39 P.3d 1174 (Colo. 2002). ○ Right to request passenger identification – Not

Demand

Arrest Probable Cause – Warrantless Arrest

Arrest Warrant. Verify warrant is valid through DuComm. Detain while verifying.

Use of Force in effectingo That reasonably necessary to detain,

overcome resistance, prevent escape, recapture, protect from bodily harm. *Balancing Test

Exclusionary Rule (Weeks, 1914)

Evidence obtained by “unreasonable” search and seizure will not be admissible

in a court of law (court not amendment rule)

Extension to State courts Mapp v. Ohio (1961) Illinois adopted the rule in 1923

Fruits of the poisonous tree doctrine 4th can taint 5th (and involuntary 5th can taint 4th)

Miranda Rights(Miranda v. Arizona, 1966)

The “Rights” and extras1. You have the right to remain silent (5th)2. Anything you say can and will be used against you in

a court of law (5th)3. You have the right to speak with an attorney (counsel)

prior to questioning or have an attorney present while you are being questioned (6th)

4. If you cannot afford an attorney, one will be provided before questioning (6th)

Extras: Stop talking or demand an attorney at any time Do you want to talk w/o an attorney present? Do you understand each of these rights?

Questioning(5th and 6th Amendments)

Only applies to Custodial situationsDeprived of freedom in significant way

“Custody is decided by the trier of fact using “Totality of Circumstances” test

General on scene inquiry or fact finding is okay

Are Traffic or Terry stops custodial?

MirandaInvocation and Waiver

Exercising requires end to questioning Related to that or any offense 5th can reproach, 6th is absolute.

Waiver is required Knowing, Voluntary, Intelligent Proof beyond reasonable doubt (Totality test)

Fruits of the poisonous tree doctrine 4th violation taints 5th (and visa-versa)