arrest, search and seizure

Introduction to the Constitution and Law Enforcement

Principles of LPSCS

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Fourth Amendment

People to be secure in– Persons– Houses– Papers– Effects

Free from– Unreasonable search

and seizure– Warrant issued only

under probable cause– Based on Oath or

affirmation– Describing person,

places, and/or things to be searched and seized


ABSOLUTE CERTAINTY

Criminal Jury Verdict

Beyond a Reasonable Doubt

Non-Suggestiveness of Identification Clear and Convincing

PreponderanceCivil Trial Decision

Take Case to Jury Prima Facie

Arrest, Search, Indictment, Information

Probable Cause

Reasonable SuspicionStop, Frisk, Question

Mere Hunch

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Levels of Proof

Probable Cause

Facts or evidence that would make a reasonable person believe that a crime or wrongdoing has been, is being, or will be committed


What would be considered Probable Cause in this picture?


Probable Cause Building Blocks

Flight Furtive acts or movement Hiding Attempting to destroy evidence Resistance to officers Admissions or confessions Evasive answers/conflicting stories Unreasonable explanations


Probable Cause Building Blocks (continued)

Physical evidence (latent prints/hair/handwriting) Identification by witness Contraband or weapons in plain view Hearsay information (informant, anonymous tip) Computerized information (TCIC/NCIC) Police radio broadcast Drug dogs Electronically obtained evidence


When is a Person Arrested (CCP 15.22)?

A person is arrested when he or she has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by a person having authority to arrest


Constructive Custody Confined, Imprisoned, In

Custody Actual, corporeal, and

forcible detention of a person

Detention within limits

Restraint Control exercised over

another Certain limits Subject to “general

authority”


Custody

Constructive Custody v. Restraint

Medford v. State– The restriction of a person’s liberty may occur

whether through physical force or the person’s submission to authority

– A reasonable person would believe that restraint of freedom is equal to a former arrest


When Can I Be Arrested and How?

Arrests can occur at anytime, day or night (CCP 15.23)

Any amount of force necessary may be used to make an arrest; no greater force, however, shall be resorted to than is necessary to secure the arrest and detention of the suspect (CCP 15.24)


http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.15.htm



Elements of an Arrest

Intent Authority Custody (Seizure or

Detention) Understanding of Subject


Arrest Without a Warrant

Offense within view (CCP 14.01) Offense within view of magistrate (CCP

14.02) Felony offense, no time to procure a

warrant because the offender is about to escape (CCP 14.04)







Arrest Without a Warrant (continued)

Authority of Peace officers (CCP 14.03)– Felony– Breach of peace– Disorderly conduct (Penal Code (PC) Ch 42)– Public Intoxication– Inchoate offense– Assault (protection)– Family Violence (bodily injury)– Prevent theft




http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.42.htm




Temporary Detention Reasonable suspicion Activity occurring or just

occurred Person connected to

activity Limited time Florida v. Royer

– Investigative detention– No longer than necessary– Scope of detention matches

justification

Stops Justified if

– No “fit” time or place– Description of wanted

person– Emotional, frightened,

intoxicated– Running/furtive

movements– Loitering/hanging

out/look out– Crime scene area


Show of Force and Authority

“Terry Frisk”

– Unusual Conduct– May be armed and dangerous– Protection of self and others– Suspicion of crime and weapon to be used– Careful pat of outer clothing– Alone and no backup– Emotions or behavior of suspects


Where a police officer observes unusual conduct which leads him or her reasonably to conclude in light of his or her experience that criminal activity is afoot and that the person with whom he or she is dealing may be armed and dangerous, …he or she is entitled for the protection of himself and others to conduct a careful, limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him or her


Terry v. Ohio

Prying into hidden places for that which is concealed

A violation or an invasion of the expectation of privacy (the 4th Amendment protects people, not places)

Is not a search to observe that which is open to view


Search Defined

Search Warrant Requirements

Definition (CCP 18.01) Neutral and detached magistrate Probable cause/staleness Sworn affidavit including

– Offense committed– Property to be searched– Property to be seized




Search Warrant Exceptions

Protective sweep Protection of evidence from destruction Evidence is discovered in plain view Property or contraband that, as a result of

the search, is believed to exist at another location on the property


Search Warrants Unnecessary

Vehicles Open fields Anything with consent Abandoned property Inventory Plain view


Must be limited to the area where items can be found

Must be listed on the warrant


Scope of Search

Searches at School

Types allowed– Backpack searches– Locker searches– Vehicle searches– Strip searches– Metal detector use– Drug dog use– Searches with consent


Searches at School (continued)

Reasons– Must be justified– Must have reasonable suspicion that a law or

a school rule violation has occurred – Must be reasonably related to the

circumstances– Must be conducted in a reasonable manner


Authorities– Administrators

Reasonable suspicion– Tips– Past behavior– Student’s reaction

to questions– Police

Probable Cause Law Violation


Searches at School (continued)

Searches with Consent

The person must have the authority to consent– Must be at least 17 years of age– Must be the owner of the property and have the legal

right to access the area being searched or an agent acting on the behalf of the owner

– Must be mentally capable of understanding consent and its possible consequences

The person may withdraw his or her consent at any time

The person may limit the scope of the search


Search Incident to Lawful Arrest

The arrest must be lawful Only the search area of immediate

control The search must immediately follow

the arrest The search may be conducted to

prevent destruction of property


Contraband – property of any nature, including real, personal, tangible, or intangible, that is used in the commission of a crime or has been altered from its original intended use– Item used in the commission of a crime– Obtained from the commission of a crime– Illegal by statute or case law

29

Seizure of Property

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Seizure of Property (continued)

Plain-View Doctrine– Coolidge v. New Hampshire

Initial intrusion must be lawful or lawfully be in a position to view contraband

Discovery must be inadvertentMust immediately be able to tell that the

property is illegal to possess


Seizure of Property (continued)

Exclusionary Rule– No evidence will be admitted into trial if obtained by a

violation of constitutional rights (CCP 38.23)– Mapp v. Ohio – any evidence obtained illegally will be

excluded from trial Officers may seize any items (contraband) that

they reasonably believe are evidence of a crime or have been obtained as a result of criminal behavior




Use of Force Custody Escape Deadly Force Force Reasonable or Necessary Force Deadly Weapon Serious bodily injury


Use of Force Key Terms (PC Ch 9)




Legal Authorities for the Use of Force

Justification as a Defense (PC 9.02) Confinement as Justifiable Force (PC

9.03) Threats as a Justifiable Force (PC 9.04) Reckless Injury of Innocent Third Persons

(PC 9.05)









Civil Liabilities of Officers and Legal Remedies

Justification Generally (PC Ch 9 subch B)– Privileged Use of Force (state law) is not a defense to

civil liabilities– Public Duty (PC 9.21)– Necessity (PC 9.22)

Protection of Persons (PC Ch 9 subch C)– Self-Defense (PC 9.31)– Deadly Force in Defense of Third Person (PC 9.32)– Defense of Third Person (PC 9.33)– Protection of Life or Health (PC 9.34)

Civil Practices – remedies Code 83.001












http://www.statutes.legis.state.tx.us/docs/PE/htm/PE.9.htm














Civil Liabilities of Officers and Legal Remedies (continued)

Protection of Property (PC Ch 9 subch D)– Deadly Force to Protect Property (PC 9.42)– Protection of one’s own property (PC 9.41)– Protection of Third Persons Property (PC 9.43)– Use of Devices to Protect Property (PC 9.44)

Law Enforcement (PC Ch 9 subch E)– Arrest and Search– Prevention of Escape from Custody– Maintaining Security in a Correctional Facility






















Civil Liabilities of Officers and Legal Remedies (continued)

Special relationships (PC Ch 9 subch F)– Parent-Child (PC 9.61)– Educator-Student (PC 9.62)– Guardian-Incompetent (PC 9.63)













Civil Remedies Unaffected

Use of Force against a person– In custody for interrogation– Who poses no threat and– Initiates no action– Is unconstitutional


Civil Remedies Unaffected (continued)

Federal Law– Officer immune from monetary liability if

He or she reasonably believes the conduct was lawful

– Based on information the officer possessed and

– Clearly established constitutional law


Civil Remedies Unaffected (continued)

Tort – A private or civil wrong or injury resulting from a

breach of a legal duty– Winning a tort suit requires proof that there was a

duty breached, and the breach caused the injury or damage

– Three Degrees of Tort actions Negligence Gross negligence Intentional action


Use of Force Continuum (Sample)

Officer Presence Verbal commands Empty-Hand Control

– Soft– Hard

Less Than Lethal Deadly Force

No Force is used Force is not physical Soft – grabs, holds,

pressure points Hard – kicks and punches Baton, OC spray, and

Taser Firearm


Resources

Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) http://www.tcleose.state.tx.us/

Arlington Police Academy http://www.statutes.legis.state.tx.us/ www.searchandseizure.org Do an Internet search for the following:

– Police defend use of force in shooting– Caselaw findlaw Tennessee v Garner


http://www.tcleose.state.tx.us/

http://www.statutes.legis.state.tx.us/

http://www.searchandseizure.org/

arrest, search and seizure

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