CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE,
FOURTEENTH EDITION
BY JACQUELINE R. KANOVITZ
INSTRUCTOR’S GUIDE
Note: Cases that appear in Part II of the textbook are noted in boldface.
Chapter 3
Authority to Detain and Arrest; Use of Force
Objectives
Students should emerge from this chapter with a solid grasp of the following:
1. The difference between voluntary investigative encounters, Terry stops, and arrests.
2. When police conduct constitutes a seizure.
Discussion Outline
[PowerPoint Slides 1 and 2 contain book and chapter title information.]
PowerPoint Slide 3. Introduction
§ 3.1 Introduction
The Fourth Amendment is the constitutional basis for limitations on the authority of police to detain
people for investigation, make arrests, conduct searches, seize property for use as evidence, and use
PowerPoint Slide 4. Seizure A “seizure” occurs when a suspect:
• Submits to a police officer’s show of legal authority
• The officer gains actual physical control over the suspect
§§ 3.2 – 3.3 Overview of the Fourth Amendment
A. An encounter between a police officer and a citizen implicates the Fourth Amendment only if the
B. The Fourth Amendment recognizes two classes of seizures. They differ in scope, duration, and
grounds for making.
PowerPoint Slide 5. Detention and Arrest
The Fourth Amendment recognizes two classes of seizures:
1. Terry stops
2. Arrests
1. A Terry stop is a limited seizure made for investigative purposes. It is permitted on a lower
C. The Fourth Amendment prohibits unreasonable seizures.
PowerPoint Slide 6. Unreasonable Seizure
A seizure will be considered unreasonable if the officer:
D. There are three kinds of investigative interactions between police and suspects that students need
to recognize and understand.
PowerPoint Slide 7. Three Kinds of Interactions
Students must learn to recognize and distinguish among three
types of interactions:
1. Voluntary encounters
2. Investigatory stops
3. Arrests
§ 3.4 “Free Zone” for Investigative Work
A. Voluntary police/suspect investigative encounters are not regulated by the Fourth Amendment.
PowerPoint Slide 8. Voluntary Encounters
Encounters are considered voluntary only if the police do not:
▪ United States v. Drayton (Part II). As part of a routine drug and weapons interdiction effort,
Officer Lang and two other officers boarded a Greyhound bus and asked individual passengers in
a quiet, polite voice about their travel plans and for permission to search them or their luggage
(“Do you mind if I check your luggage/Do you mind if I check you?”). When Brown was asked,
he said “sure.” Drug packets were discovered during a pat-down search. When his companion
Drayton was asked, he responded by lifting his hands. Drugs were also found on him. Both men
B. No legally required level of suspicion is necessary to approach members of the public and ask for
identification, answers to questions, permission to search their belongings, consent to take a
Breathalyzer test or to accompany them to the police station, or for any other kinds of assistance in
resolving the officer’s suspicion of them. However, the suspect has a corresponding right to refuse the
requested cooperation. Evidence obtained in a consent-based encounter is always admissible.
C. Consent-based encounters can occur on public streets, in airport terminals, on buses, or in any other
D. A voluntary encounter can escalate into become a Terry stop if the questioning becomes intimidating,
threatening, or coercive.
§ 3.5 “Seizure” Defined
A. A suspect is seized, within the meaning of the Fourth Amendment, when the suspect’s freedom of
movement is restrained and the suspect is brought under the officer’s control, either through (1)
submission to a show of legal authority or (2) physical means.
PowerPoint Slide 9. Show of Legal Authority
The consensual aspects of an encounter vanish once a police officer’s
B. Seizure by submission to a show of legal authority. A show of authority occurs when police engage in
conduct that would cause a reasonable person to believe that they are not free to ignore the officer’s
request, terminate the encounter, and leave.
1. Judges consider all circumstances surrounding the encounter in applying this test.
C. Seizure by physical restraint. If the suspect does not submit to the officer’s show of legal authority, no
seizure occurs until the suspect is actually brought under the officer’s control.
▪ California v. Hodari D. (Part II). Hodari, a juvenile who was standing on a street corner, took off
running when he saw an unmarked police car approaching. The officers got out of the car and
§ 3.6 Fourth Amendment Grounds for a Lawful Seizure
A. There are two categories of seizures
PowerPoint Slide 10. Categories of Seizures
Seizures are classified as Terry stops or arrests depending on their
duration and invasiveness.
• Terry stops are seizures of limited scope and duration
B. Similarities between reasonable suspicion and probable cause
PowerPoint Slide 11. Comparison of Probable Cause and Reasonable Suspicion
Similarities
• Both involve assessments of suspect’s probable guilt
• Both are drawn from the same sources of evidence
• Judges use the same process to determine whether the
required suspicion is present
Differences
• Probable cause requires more evidence or more reliable
evidence
1. Both involve assessments of the suspect’s probable guilt.
2. Both may be drawn from the same of sources of evidence. This evidence includes personal
C. Difference between probable cause and reasonable suspicion.
1. Probable cause requires a higher probability of guilt. The higher probability must be based on
§ 3.7 Investigatory Stops
A. Terry v. Ohio (Part II) is the seminal case that recognized investigative stops as a distinct category of
limited seizures that are allowed on a lower degree of suspicion. While patrolling in downtown
Cleveland, a police officer observed three men gazing through a store window, studying what was
going on inside. The men walked a short distance, turned back, gazed through the store window again,
The issue in Terry v. Ohio centered on the constitutionality of the weapons frisk. However, because
the constitutionality of the weapons frisk depended on the constitutionality of stopping Terry for
PowerPoint Slide 12. Terry Stop
The purpose of a Terry stop is to enable the police to investigate the
PowerPoint Slide 13. Constitutional Requirements for a Terry Stop
For a Terry stop to be lawful, officers must:
§ 3.8 Reasonable Suspicion
A. In order to satisfy the reasonable suspicion standard, the officer must possess objective grounds for
suspecting the detainee of having committed, committing, or being about to commit a crime.
PowerPoint Slide 14. Reasonable Suspicion
Officers, in order to satisfy the reasonable suspicion standard, must be
able to:
• Point to behavior of the detainee that is different from what one
might ordinarily expect of an innocent person in the vicinity
• Explain why the detainee’s behavior suggests the possibility of
criminal activity.
▪ Illinois v. Wardlow (Part II). As a four-car caravan of marked police vehicles were patrolling
an area known for heavy narcotics trafficking, police saw a man standing next to the building
1. Police officers may use information received from members of the public as the basis for a Terry
stop if they have reason to believe that the information is reliable.
a. Information received from citizens who identify themselves and report activity of which they
have firsthand knowledge is sufficient to provide reasonable suspicion.
b. Anonymous tips are generally not sufficient without further corroboration.
▪ Navarette v. California (Part II). A detailed contemporaneous report by an anonymous
911 caller who asserts eyewitness knowledge of a reckless driving incident contains
§ 3.9 Scope and Duration of Investigatory Stops
A. Investigatory stops are allowed on a lower degree of suspicion than arrests because they are designed
to be less intrusive than arrests. When the police overstep the lawful boundaries of an investigatory
stop, the stop automatically escalates into an arrest, resulting in a violation of the detainee’s Fourth
Amendment rights unless probable cause for an arrest has already been established.
B. Weapons frisks are permitted only if police have reasonable suspicion that a detainee is armed. The
C. Some investigatory techniques are too much like an arrest to be allowed on reasonable suspicion.
PowerPoint Slide 13 lists five things that exceed the scope of a Terry stop and are not allowed unless
police develop probable cause for arrest or the suspect consents.
PowerPoint Slide 15. Prohibited during Terry Stops
• Taking detainees to the police station
• Searching detainees for anything besides a weapon
▪ Hayes v. Florida (Part II). Police removed the defendant and took him to police station for
fingerprinting, though they lacked probable cause to arrest him. He was arrested when the
fingerprints matched. Court held that the fingerprints were inadmissible, stating: “There is no
doubt that at some point in the investigative process, police procedures can qualitatively and
D. A Terry stop must be: (1) brief (with 90 minutes probably being the outer limit); (2) conducted
efficiently so as to avoid unnecessarily prolonging the period of involuntary detention; and (3) confined
to investigating the suspicion that prompted the stop unless articulable grounds for reasonable
suspicion of unrelated criminal activity develop during the stop.
▪ United States v. Place (Part II). (1) Police are justified in temporarily detaining a suspect’s
luggage for an examination by a trained narcotics detection dog when they have reasonable
§ 3.10 Traffic and Vehicle Stops
A. Stopping a motorist is always a seizure, whether the stop is made to check the motorist’s license or
vehicle registration, issue a traffic citation, or investigate suspicion of a non-traffic offense. Police must
have Fourth Amendment grounds to stop a vehicle.
B. An exception is made for stops conducted at fixed checkpoints
PowerPoint Slide 16. Checkpoints
§ 3.11 Pretextual Traffic Stops
A. A pretextual traffic stop is a stop made for an observed traffic violation in which the officer’s actual
motive is to check out a hunch about unrelated criminal activity.
Whren v. United States (Part II). Established the constitutional validity of pretextual traffic stops.
Pretextual traffic stops are treated like any other traffic stops. This section lays out the rules for traffic
stops.
B. Probable cause (or reasonable suspicion) of a traffic or equipment violation is required for a traffic
stop.
C. Safety precautions during traffic stops.
PowerPoint Slide 17. Safety Precautions During Traffic Stop
Routine precautions:
• Order the motorist and passenger to exit the vehicle
D. Scope and duration of traffic stops.
1. The dimensions of a lawful traffic stop are similar to a Terry stop. An officer conducting a routine
traffic stop may request the driver’s license, vehicle registration, and insurance papers; run a
Arizona v. Johnson (Part II). Police have the same authority to question passengers as they
do the driver.
2. Investigation matters beyond the scope of the traffic stop
PowerPoint Slide 18. Investigating Unrelated Criminal Activity
3. Search authority during traffic stops
PowerPoint Slide 19. Search Authority During Traffic Stops
• Issuance of a traffic citation
Illinois v. Caballes (Part II). Drug detection dogs may be used to sniff the exterior of lawfully
stopped vehicles, without reasonable suspicion, if the procedure can be performed without
Arizona v. Gant (Part II). Gant was arrested for driving with a suspended license. After he
was handcuffed and locked in the backseat of a patrol car, police searched the interior
compartment of his vehicle and discovered a bag of cocaine in the pocket of a jacket. The
F. A consensual investigative encounter can follow a traffic stop without the motorist being expressly
told that he is free to leave. However, the motorist’s documents must be returned and the motorist must
be asked in a courteous, nonthreatening manner if he would mind answering a few more questions
before he departs.
G. Racial targeting. Deliberately treating one person differently from the way the officer would treat
§ 3.12 Fourth Amendment Requirements for a Constitutional Arrest
A. There are two kinds of arrests
1. Formal arrest—announced intent coupled with a seizure
2. De facto arrest—encounter lasts too long or is too intrusive to be justified on reasonable suspicion
PowerPoint Slide 20. Constitutional Arrests
• Probable cause is only Fourth Amendment requirement for
valid arrest unless made inside a dwelling.
B. There are advantages to obtaining a warrant, when time permits, even when police are not required to
obtain one.
PowerPoint Slide 21. Arrest Warrant Advantages
An arrest warrant
• Ensures admissibility of evidence seized during a search
incident to the arrest
• Protects the officer against liability in a civil suit
§ 3.13 Probable Cause
A. The Fourth Amendment requires probable cause for four different purposes: (1) an arrest, (2) an arrest
§ 3.14 Fourth Amendment Requirements for a Valid Arrest Warrant
A. The Fourth Amendment imposes three requirements for a valid arrest warrant.
1) Magistrate must make an independent
determination that probable cause exists for the
B. A police officer commences the warrant process by preparing a sworn written statement, called an
affidavit, in which the officer sets forth the facts on which his or her application is made. The magistrate
reviews the officer’s affidavit and decides whether the facts recited in it are sufficient to satisfy the
probable cause standard. In making this determination, the magistrate considers both the content of the
information and the reliability of the officer’s sources.
1. Although the magistrate is responsible for making the probable cause determination, the officer is
responsible for supplying enough information in his or her affidavit to enable the magistrate to
make an independent decision.
a. The officer’s affidavit must contain a detailed account of the facts uncovered by the
C. Arrest warrants must also be properly executed. Requirements for execution, other than the knock and
announce, derive from statutes, not the Fourth Amendment.
PowerPoint Slide 23. Statutory Requirements for Execution of Warrant
The warrant must also be properly executed for the arrest to be valid:
1) The person executing the warrant must be the specific officer or a
member of the class of officers to whom the warrant is directed.
2) The warrant must be executed within the territorial jurisdiction of
§ 3.15 Arrests Inside a Private Residence
A. A warrant is necessary to make an arrest inside a private home in the absence of exigent circumstances
or consent.
Payton v. New York (Part II). The following paragraph from Payton summarizes the holding far
better than the author can: “The Fourth Amendment protects the individual’s privacy in a variety
of settings. In none is the zone of privacy more clearly defined than when bounded by the
unambiguous physical dimensions of an individual’s home—a zone that finds its roots in clear and
PowerPoint Slide 24. Arrests Inside a Private Residence
• Absent consent, exigent circumstances, or hot pursuit, police may
not arrest a person inside a dwelling to arrest unless a magistrate
B. Compliance with the warrant and/or knock-and-announce requirement is excused if:
1. A person of sufficient age who resides on the premises grants permission for the police to enter.
2. Police have reason to believe that securing a warrant and/or complying with the knock and
announce requirement will:
a. Endanger the lives or safety of the officer, the suspect, or a third party,
3. Police are in hot pursuit of a suspected felon encountered in a public place who flees and seeks
refuge inside.
§ 3.16 Use of Force in Making a Seizure
PowerPoint Slide 25. Fourth Amendment and Use of Force
Whether the force in making an arrest is reasonable depends on:
A. The Fourth Amendment prohibits excessive force in making arrests and other seizures. The standard
used in Fourth Amendment cases is objective reasonableness. Police violate the Fourth Amendment
when they use more force than a reasonable police officer on the scene would have considered
necessary.
1. Factors considered in assessing whether the force was reasonable include the severity of the crime
and whether the suspect posed an immediate threat to the safety of the officer or others, actively
resisted arrest, or attempted to flee.
PowerPoint Slide 26. Use of Deadly Force
Deadly force is allowed only when the officer has probable cause
2. Special rules exist for deadly force. Deadly force may be used only when an officer reasonably
believes such force is necessary to protect self or others from serious bodily harm.
1. Police may not shoot to kill an unarmed suspect who has committed a nonviolent crime and
is trying to escape on foot.
▪ Tennessee v. Garner (Part II). Police shot a youth in the back of the head as he was
2. Police may use deadly force to end a high-speed chase that endangers the lives of innocent
bystanders
▪ Scott v. Harris (Part II). Police witnessed Harris driving 73 miles per hour in a 55-mile-
per-hour zone. When they tried to pull him over, he sped away and a high-speed chase
ensued, reaching speeds between 80 and 90 miles per hour down a two-lane highway,
§ 3.17 State Arrest Laws
A. The Fourth Amendment establishes the minimum requirements for a constitutional arrest. States remain
free, as a matter of local law, to impose greater restrictions. A valid arrest requires compliance with
more stringent requirements imposed by state law, as well as with the Fourth Amendment.
B. State arrest laws often distinguish between arrest for a felony (offense punishable by a prison term or
§ 3.18 Territorial Limits on a Police Officer’s Arrest Authority
A. Intrastate limits on arrest authority. A city or county police officer has no authority to take official
action in other parts of the state unless:
1. state statutes confer this authority, or
2. the officer is in hot pursuit (i.e., immediate, uninterrupted pursuit of a person trying to avoid
apprehension).
B. Interstate limits on arrest authority. A police officer’s arrest authority ends at the state line. An officer
may not take official action in another state unless statutes in the host state confer authority on out-of-
state police officers to enter and perform the acts in question.
Student Review Questions (Answers are provided at the end for questions that have asterisks beside them.)
1. What legal norms besides the Fourth Amendment must an arrest comply with to be valid? (§3.1)
2. An arrest may violate the Fourth Amendment for three different reasons. What are they? (§§3.3, 3.5)
3. What consequences ensue from violating the Fourth Amendment? (§3.2)
7. What can police do if a suspect refuses to cooperate during a voluntary investigative encounter? (§3.4)
8. Define the term “seizure” and describe the two ways in which a seizure can be effectuated. (§3.5)
9. Why is it often necessary for courts to pinpoint the exact moment when a seizure occurs? (§3.5)
*10.What test is used to determine whether a police officer’s conduct constituted a “show of legal
authority”? Give several examples of police conduct that constitutes a show of authority. (§3.5)
11. What must police do to effectuate a seizure if the suspect does not submit to their show of legal
authority? (§3.5)
12. What Fourth Amendment grounds are necessary for an investigative stop? For an arrest? (§3.6)
15. What was the first case to recognize investigative stops as a distinct category of seizure? What two
rules did that case lay down? (§3.7)
16. What is the test for reasonable suspicion? (§3.8)
17. What is the difference between a hunch and reasonable suspicion? (§3.8)
18. What are the various sources of information from which reasonable suspicion may be drawn? (§§3.6,
3.8)
19. Are tips received from members of the public who identify themselves and report matters about which
they have firsthand knowledge sufficient to provide reasonable suspicion for a Terry stop? Are
unverified anonymous tips sufficient? If not, what sorts of additional facts have been held sufficient to
make them so? What did the Supreme Court hold in Navarette v. California? (Part II)? (§3.8)
24. What is the “plain feel” doctrine? (§3.9)
25. What investigative activities besides requests for identification and questioning are permitted during a
Terry stop? What activities are off-limits? (§3.9)
26. What limitations exist on the duration of Terry stops? (§3.9)
27. What four requirements does the Fourth Amendment impose for a valid checkpoint stop? Give
examples of what is meant by a “special need.” (§3.10)
28. What is a pretextual traffic stop? Are such stops legal? (§3.11)
*31. What authority do police have to search for evidence when they: (1) issue a traffic citation? (2) make
a traffic arrest? (3) arrest a motorist for a nontraffic offense? (§3.11; Arizona v. Gant (Part II))
*32. Under what circumstances may police bring a drug-detection dog to the scene of a traffic stop to
perform a sniff? (§3.11)
33. What two things are necessary for a traffic stop to change into a voluntary investigative encounter?
(§3.11)
34. What is the test for probable cause? (§§3.12, 3.13)
35. When does the Fourth Amendment require an arrest warrant? (§3.12)
38. Within what period after the arrest must the post-arrest judicial determination of probable cause occur?
(§3.12)
39. What three requirements does the text of the Fourth Amendment impose for a valid arrest warrant?
(§3.14)
40. How can police satisfy the Fourth Amendment requirement that an arrest warrant “particularly
describe” the person to be seized when police do not know the suspect’s name? (§3.14)
43. What locations are considered “homes” under the Fourth Amendment? Are front porches included
within protection of the home for the sake of determining whether a warrant is necessary to make an
arrest? (§3.15)
44. Under what circumstances are the police excused from complying with the requirements covered in
Questions 41 and 42? (§3.15)
45. Who has the authority to give consent to enter a private home? (§3.15)
46. What constitutes “exigent circumstances”? (§3.15)
47. What test do courts use to determine whether the force used by an officer was excessive? What factors
do courts consider in applying that test? (§3.16)
48. When is deadly force permitted? (§3.16)
ANSWERS:
10. The test for show of authority is whether a reasonable person would feel free to ignore the officer’s
request, terminate the encounter, and leave. Pulling behind a vehicle and activating a siren; chasing
delaying completion of the stop; (2) otherwise, reasonable suspicion of drug activity is necessary.