SEIZURES: STOPS & ARRESTS/VEHICLE DIVIDER 6 STOPS ...
Transcript of SEIZURES: STOPS & ARRESTS/VEHICLE DIVIDER 6 STOPS ...
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
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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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