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Criminal Procedure Outline - Professor Fields 2021 - Campbell Law - Part 1

Criminal Procedure Outline - Professor Fields 2021 - Campbell Law - Part 6

By Miller Moreau
Professor Fields - 2021

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iii. Drawing the Lines – Terry Stop v. De Facto Arrests

Dunaway v. NY (1979) (pizza parlor proprietor killed-jail inmate supplied lead. Not enough for warrant but still picked him up, wasn’t told he was under arrest but would’ve been restrained, questioned in interrogation room): Reasonable suspicion is limited to Terry Stops and is not an applicable basis for police to compel a custodial interrogation of an individual
1. De facto arrest need probable cause
2. Probable cause required to compel custodial interrogation
  1. This is a de facto arrest
  2. White concurrence: 4th am is about reasonableness, not warrants, and therefore balancing test is key. But must be categorical, not case-by-case
  3. Rehnquist dissent – this is all about consent: Dunaway went on his own free will
    1. Question turns on whether the officer’s conduct is objectively coercive or physically threatening, not on the mere fact that a person might in some measure feel cowed by the fact that a request is made by a police officer
Florida v. Royer (1983) (one-way ticket under assumed name, fit “drug-courier” profile): After the police officers requested Royer to accompany them to a police room, Royer followed them, and the police announced their suspicion, the stop exceeded the permissible scope of Terry
1. Everything was consensual? But a person is effectively seized when a “reasonable person would have believed that he was not free to leave”→
2. Simple Terry Stop? Maybe at first, but under Terry, “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time”→
3. Then there’s probable cause for the arrest? Not at the time he consented to the search of his luggage
Terry Stops: reasonable suspicion that a person has committed or is about to commit a crime
1. Scope of Terry Stops: Investigative methods employed should be the least intrusive means reasonable available to verify or dispel the officer’s suspicion in a short period of time
  1. Limitation applies to length and intrusiveness of the stop – both limited to time and extent necessary to verify or dispel officer’s suspicion
    1. Illinois v. Caballes: Did the calling in the dog unlawfully extend the scope of the Terry stop into a seizure? “An investigative technique, even when directed toward criminality not reasonable suspected, does not violate that limitation unless the particular tactic itself infringed the detainee’s constitutionally protected interest in privacy

iv. Summary

Stop and frisk:
1. RS
  1. Lesser standard than prob cause
  2. Objective standard from perspective of police officer
  3. Innocent conduct may add up to reas suspicion
  4. Anonymous tip + indicia of reliability
  5. Preference against bright line rules
  6. Limited in scope to weapons, not evidence
2. Terry stops
  1. Stop requires reas suspicion that a crime occurred or that crim activity is afoot
  2. Search still limited to weapons
  3. Limitations: scope and duration – scope limited to nature of the investigation and duration limited to the amount of time necessary to dispel/confirm suspicion
3. Terry stops to a de facto arrest: When terry stops exceed their permissible scope/duration, they become de facto arrests requiring prob cause

v. Drawing the Lines – Terry Stop v. Non-seizure (consent-based) Encounters

US v. Mendenhall (1980) (fake name on ticket, in Cali for only 2 days, asked her to come to DEA office, asked if they could search and consented, found heroin)
1. Plurality opinion (if there’s a question on this, need to argue whether consent, reasonable suspicion, or de facto arrest—appropriately)
2. Mendenhall was not seized for 4th am purposes when police officers initially stopped her in the concourse because:
  1. A reasonable person in her situation would have believed she was free to leave; or
  2. Police had reasonable suspicion to stop her
3. No, she was not seized when she went to DEA Office because under totality of circumstances, her consent was voluntarily given
4. Stewart and Rehnquist say consent based
  1. Have to allow for the police to approach people on the street
  2. To allow that, conclude that “a person has been seized only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave
  3. Some objective factors:
    1. Threatening presence of several officers
    2. Display of a weapon by an officer
    3. Some physical touching of the person
    4. Use of language or tone of voice indicating that compliance was compelled
      1. But what about her age, education, etc.
5. Powell, Burger, Blackmun:
  1. Seizure did happen here, it wasn’t consensual
  2. Based on reasonable suspicion (her conduct)
6. Dissent – White, Brennan, Marshall, and Stevens: Clearly a de facto arrest like in Dunaway
Florida v. Bostick (1980) (boarded bus w/o rs and asked passengers to search their luggage): Police encounter on a bus of the type involved here does not constitute a seizure because a reasonable person in respondent’s position would have felt free to decline the officer’s request or otherwise terminate the encounter, the entire encounter was consensual
1. There can’t be a per se rule that these types of encounters are always seizures
2. Test: whether, taking into all the circumstances surrounding the encounter, the police encounter would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business (reasonable person test)
US v. Drayton (2000) (boarded bus, didn’t block aisle, asked to search bag, asked to pat down, found cocaine): Law enforcement action on the bus did not amount to a stop or seizure triggering either Terry or 4th am protections because a reasonable person in def’s situation would have felt free to decline the officers’ requests or otherwise terminate the encounter
1. Significance of Bostick: Buses are different and no per se rules allowed (person is seized dependent on “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter)
2. Bostick Rule: Totality of the circumstances – look to nature of the encounter
  1. When officer did not remove the gun or use it in a threatening way
  2. When officer advised passengers of their right to not cooperate and to refuse
  3. Police did not seize folks when they boarded
  4. Police left aisle free
  5. Spoke to passengers one-on-one in nice voice
  6. Police said people have refused to cooperate before
Summary: Terry Stops v. Non-Seizure Encounters
1. Police can stop and approach someone w/no suspicion so long as a reasonable person in the situation would feel free to refuse and terminate the encounter
2. Extremely objective based – look at behavior of the police officers and ask whether based on the totality of the circumstance the police showed coercion or threatened force
3. If a reasonable person would not feel free to terminate the encounter, then you need reasonable suspicion or PC
Brendlin v. California (2007) (traffic stop, conceded to be illegal for lack of rs. Defendant was passenger, found outstanding arrest warrant—arrested, drugs found on his person): A passenger of a vehicle may be seized by law enforcement as part of a traffic stop if a reasonable person in his situation would not feel free to decline the officers’ requests or otherwise terminate the encounter
1. This is just Mendenhall and Bostick
  1. Mendenhall: seizure occurs if in view of all of the circumstances surrounding an incident, a reasonable person would have believed that they were not free to leave
  2. A passenger is restrained just as much as driver
  3. Maryland v. Wilson: in a traffic stop, police may order a passenger out of the car absent reasonable suspicion based on safety
  4. Reversed
Rodriguez v. US (2015) (K-9 officer pulled over and used dog w/o consent): Police may not extend a traffic stop to conduct a drug sniff absent reasonable suspicion to do so
1. Police can stop vehicles when they have reasonable suspicion of a traffic violation
2. Traffic stop is still considered a seizure under the 4th am, just viewed through the spectrum of a Terry Stop
3. Consequently, limited in scope to the “seizure’s mission” (to address the traffic violation that warranted the stop, and attend to related safety concerns)
  1. Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been—completed
  2. Critical question is whether conducting the sniff prolongs the stop
4. Limits Caballes, can bring the drug dog even if no reasonable suspicion of drug use, but may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining the individual
5. California v. Long (drunk, pulled over, saw hunting knife, searched passenger compartment, saw bag, found weed): Search of the passenger compartment of an automobile, limited to areas where weapon, permissible if rs
Summary: Terry Stops v. Non-Seizure Encounters
1. Police can stop and approach someone with no suspicion so long as a reasonable person in the situation would feel free to refuse and terminate the encounter
2. Extremely objective based: look at behavior of the police officers and ask whether based on the totaliity of the circumstances the police showed coercion or threatened force
3. If a reasonable person would not feel free to terminate the encounter, then you need reasonable suspicion or probable cause
4. Extends to passengers in vehicles
5. And can’t prolong a traffic stop to wait for a drug dog

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