Expanding the Scope of the Terry Balancing Approach - Thus far, Terry v. Ohio involved persons, rather than property – specifically, the warrantless “brief” seizure and, sometimes “minimal” frisk-searches of persons
- However, once we shift from the Warrant Clause to the Reasonableness Clause, a court balances the individual’s Fourth Amendment interests against the government’s interest in criminal law enforcement, there is nothing that conceptually limits this approach to stop-and-frisk (or stop-and-question) scenarios
- Terry Balancing Approach extends to:
- Justifying some warrantless, probable-cause-less, limited seizures and searches of property
- Minimal non-frisk searches of persons (including some DNA searches)
Protective Sweeps Remember Chimel’s ruling that a warrantless search incident to lawful arrest must be limited to areas within the arrestee’s “immediate control.”
Maryland v. Buie (1990) → where an arrest takes place in the suspect’s home, the officers may conduct a protective sweep of all or part of the premises, if they have a “reasonable belief” based on “specific and articulable facts” that another person who might be dangerous to the officer may be present in the areas to be swept.
- Nature of Protective Sweep – a “protective sweep” is a quick and limited search of premises incident to arrest, and is conducted to protect the safety of the arresting officers or others
- It is NOT a full search of the premises, but may extend “only to a cursory inspection of those spaces where a person may be found hiding.”
- Requirements:
- In order to search the rest of the house, need articulable facts supporting a reasonable suspicion that someone else is in the house
- Adjacent Spaces
- “Specific and articulable facts” are NOT needed for the officers to search in closets and other spaces immediately adjoining the place of an arrest, to make sure that no possible attacker lurks there
- This may be done as a precautionary measure, even where there are no specific facts suggesting a risk of attack, and does not count as a “protective sweep”
- Summary:
- As an incident to the arrest the officer can, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched
- There must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene
- A protective sweep, aimed at protecting the arresting officer, is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found
- The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises
Notes - Brief Seizure of Property?
- US v. Place (1983) → extended the Terry analysis of temporary seizures of persons to personalty (personal, movable property)
- Facts – DEA took luggage of suspect for 90 mins before subjecting it to a “sniff test”, which reacted positively
- Rule → when an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope
- Car Frisks?
- The police may ordinarily search a car without a warrant if they have probable cause to do so
- The police may search portions of the car as an incident to a lawful arrest of a car occupant (or a recent occupant), even without probable cause
- Penn. v. Mimms – police may order persons out of an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous
- Adams v. Williams – the police, acting on an informant’s tip, may reach into the passenger compartment of an automobile to remove a gun from a driver’s waistband even where the gun was not apparent to police from outside the car and the police knew of its existence only because of the informant’s tip
- Michigan v. Long (1983) → the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the reasonable inference from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.
- “The issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”
- DNA Testing of Arrestees
- Maryland v. King (2013) → When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
- Intrusion into the Human Body – Virtually any ‘intrusion into the human body’ will work an invasion of ‘cherished personal security’ that is subject to constitutional scrutiny”
- Issue: Whether the intrusion, i.e., search, is reasonable upon balancing the privacy-related and law enforcement-related concerns
- Reasonableness of DNA Testing – DNA testing is reasonable in view of the “need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody. When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.”
- Allow warrantless DNA sample when:
- Arrest is supported by PC; and
- Suspect is going to be held in custody
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