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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.
5. Actions that are permissible/ impermissible during Terry stops.
6. How to properly manage a pretextual traffic stop.
7. When an arrest warrant is necessary.
Discussion Outline
§3.1 Introduction
A. ir persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no
B. In order to be lawful, an arrest must comply with:
1. Fourth Amendment standards,
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§3.2 Overview of the Fourth Amendment
A. An encounter between a police officer and a citizen implicates the Fourth Amendment only if
B. The Fourth Amendment recognizes two types of seizures. They differ in scope, duration, and
grounds for making.
1. An investigatory stop is a limited seizure made for investigative purposes. It is permitted
on reasonable suspicion of involvement in criminal activity.
C. The Fourth Amendment is violated only if the seizure is unreasonable. A seizure may be
considered unreasonable for any one or more of following reasons:
1. The police lacked adequate grounds for making the seizure.
D. An unconstitutional seizure can:
1.
§3.3 Crossing the Boundary of the Fourth Amendment
There are three legally significant categories of police/suspect investigative encounters:
§3.4
A. Voluntary police/suspect investigative encounters are not regulated by the Fourth
Amendment.
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B. The hallmark of a voluntary investigative encounter is that police neither physically restrain
the suspect nor behave in ways that would cause a reasonable person to feel unfree to decline
ncounter, and leave.
1. 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
you mind if I check your luggage/Do you mind if I
C. 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
D. Consent-based encounters can occur on public streets, in airport terminals, on buses, or in
E. A voluntary encounter can become a Terry stop if the questioning becomes intimidating,
threatening, or coercive.
§3.5
A. A suspect is seized, within the meaning o
either through (1) submission to a show of legal authority or (2) physical means.
B. Seizure by submission to a show of legal authority. A show of authority occurs when police
1. Judges consider all circumstances surrounding the encounter in applying this test.
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2. The distinction between a voluntary investigative encounter and a seizure is one of
3. Below are several illustrations of seizures brought about through submission to a show
of legal authority:
a. A detective approaches a young man, shows her badge, and says in a commanding
good reason to believe you have narcotics in your luggage. Pick up
C. Seizure by physical restraint. If the suspect does not submit to
§3.6 Fourth Amendment Grounds for a Lawful Seizure
A. A correlation exists between the degree of suspicion warranted by what the officer knows
and the type of action the Fourth Amendment allows the officer to take.
1. When an officer has nothing more than a hunch that a particular person is involved in
2. Once the officer knows of and can point to specific facts that justify a reasonable
3. Once the officer knows of facts sufficient to warrant a reasonable person in believing,
B. Similarities between reasonable suspicion and probable cause
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1.
2. Both may be drawn from the same of sources of evidence. This evidence includes
3. Judges use the same evaluation process for making both determinations. The evaluation
process involves two steps. The judge first determines the facts known to the officer.
C. Difference between probable cause and reasonable suspicion.
§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. The Supreme
B. There are three constitutional requirements for a lawful Terry stop.
1. The officer must be able to point to facts that justify reasonable suspicion of criminal
activity.
§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
B. Reasonable suspicion requires more than a hunch, but less than probable cause for an arrest.
1. None of the following behaviors can stand on their own in providing reasonable
suspicion. However, all of them are capable of adding background, color, and context
and may be considered in deciding whether reasonable suspicion is present.
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a. The person is spotted in a high-crime area or area with a high frequency of drug–
related arrests.
b The person has a criminal record or is in the company of others who have criminal
records.
2. Whether the facts known to the officer provide an objective basis for reasonable
suspicion is determined from the vantage point of a trained police officer. Courts
3. Police officers may not act on information received from members of the public without
independent corroboration unless they have a rational basis for believing this
information is reliable. Consideration must be given to thiness and
basis for knowledge.
a. Tips from known informants and citizens who identify themselves and report
b. Tips received from anonymous callers, in contrast, must be corroborated.
Florida v. J.L. (Part II). An anonymous tip that someone has a gun regardless of
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4. Although an officer who makes an investigatory stop (or an arrest) at the direction of
another police department or officer need not be informed of the evidence that supports
§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
C. Protective measures during Terry stops include:
1. § 3.11 (C) outlines the precautions that can be taken when the stop involves a vehicle.
2. Weapon frisks require reasonable suspicion that a detainee is armed and dangerous. The
D. The investigation must be conducted using the least intrusive and most expeditious means
reasonably available. After a lawful Terry stop, police officers have authority to undertake
following when they appropriate to investigating the underlying suspicion:
1. ask for identification.
2. question the suspect
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E. Some investigatory techniques are too much like an arrest to be allowed on reasonable
suspicion.
1. Police should never take the following actions unless they have probable cause for an
arrest:
2. Police should also refrain from the following:
a. Unnecessary display of weapons, use of handcuffs, etc.
F. 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.
1. United States v. Place (Part II). (1) Police are justified in temporarily detaining a
have reasonable suspicion that the luggage contains narcotics. (2) Exposure of luggage
§3.10 Traffic and Vehicle Stops
A.
license or vehicle registration, issue a traffic citation, or investigate suspicion of a non-traffic
offense. Accordingly, probable cause is necessary to issue a traffic citation or make a traffic
arrest, and reasonable suspicion is necessary to conduct an investigatory traffic stop.
An exception exists for stops conducted at fixed checkpoints. Suspicionless checkpoint stops
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§3.11 Pretextual Traffic Stops
1. Whren v. United States (Part II). When police have probable cause for a traffic stop,
the fact that the real reason is to check out a hunch about unrelated criminal activity is
B. Grounds for a traffic stop. Probable cause (or reasonable suspicion) of a traffic or equipment
violation is necessary for a lawful traffic stop.
C. Safety precautions during traffic stops. Police may, as a matter of course: (1) order the
motorist and passengers to remain outside the vehicle, (2) ask them whether they have guns
or weapons, (3) visually look inside the vehicle and shine a flashlight around the interior, and
(4) check for outstanding warrants and run a criminal records check.
1. Arizona v. Johnson (Part II). Arizona v. Johnson clarifies police authority to frisk
D. Scope and duration of traffic stops. The dimensions of a lawful traffic stop are similar to a
Terry stop. An officer conducting a routine traffic stop may request the dri
vehicle registration, and insurance papers, run a computer check on them, run a criminal
records check, check for outstanding warrants, and ask a few general questions about the
1. The Fourth Amendmen tion of the stop, not the scope of
questioning that occurs during it. Police may question motorists about matters unrelated
2. Arizona v. Johnson (Part II). Police have the same authority to question passengers as
the driver.
3.
E. Fourth Amendment Authority to Search for Evidence During Traffic Stops
1. Police have no authority to search the motorist or the vehicle when they issue a traffic
citation.
2. Police may se but not the vehicle when they make a traffic
arrest.
a. 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 Supreme Court held that the search violated the
3. 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 prolonging the duration of the stop. The reason dog sniffs are permitted is because
they not regarded as searches.
F. A consensual investigative encounter can follow a traffic stop without the motorist being
G. Racial targeting. Deliberately treating one person differently from the way the officer would
a denial of
equal protection of the laws.
Maryland State Conference of NAACP Branches v. Maryland State Police [Part II
§3.12 Fourth Amendment Requirements for a Constitutional Arrest
A. There are two kinds of arrests: (1) formal (i.e., intentional) arrests, and (2) de facto arrests,
B. The Fourth Amendment requires probable cause for an arrest.
1. Probable cause is determined based on the objective facts known to the officer at the
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2. The probable cause that supports an arrest does not have to derive from the grounds
D. An arrest with a warrant carries two advantages over an arrest without a warrant. Good faith
reliance on a facially valid warrant:
1. Ensures that evidence seized during the arrest will be admissible.
2. Immunizes the officer from civil suit.
E. Both advantages will be lost if the officer:
1. deliberately or recklessly falsifies information in the affidavit used to support the
warrant, or
§3.13 Probable Cause
A. Probable cause exists when the facts known to an officer create a fair probability of guilt.
§3.14 Fourth Amendment Requirements for a Valid Arrest Warrant
A. The Fourth Amendment expressly imposes the following requirements for a valid arrest
warrant:
1. A judicial finding of probable cause for the arrest,
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3. A particularized description of the person to be arrested. This requirement is satisfied if
the person is designated by
a. their actual name, or
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
it are sufficient to satisfy the probable cause standard. In making this determination, the
magistrate considers bo
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.
investigation, the source of these facts, and any further information the magistrates
C. Under the laws of most states, an arrest warrant must, in addition to the above:
1. Be issued in the name of the state or a municipality.
2. State the date when issued and the municipality or county where issued.
6. Be signed by the judge of the court who issued it.
D. Even though the warrant has been properly issued, the arrest will not be valid unless the
warrant is also properly executed. A lawful execution must, at minimum, comply with the
following requirements:
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.
E. A valid arrest warrant issued in conformity with the requirements of the Fourth Amendment
affords probable cause to arrest any person whom the police reasonably believe is the person
named in the warrant.
§3.15 Arrests Inside a Private Residence
A. In the absence of exigent circumstances or consent, a warrant is necessary to make an arrest
inside a private home.
Payton v. New York (Part II). The following paragraph from Payton summarizes the
holding far better than the author
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
1. If the person to be arrested resides in the dwelling, an arrest warrant will suffice.
2. If the dwelling belongs to someone else, the police must obtain a search warrant as well
as an arrest warrant.
C. Compliance with the warrant and/or knock-and-announce requirement is excused if:
2. Police have reason to believe that securing a warrant and/or complying with the knock
and announce requirement will:
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
A. The Fourth Amendment prohibits excessive force in making arrests and other seizures. The
1. Factors considered in assessing whether the force was reasonable include the severity of
the crime, whether the suspect posed an immediate threat to the safety of the officer or
others, actively resisted arrest, or attempted to flee.
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.
a. Police may shoot to kill when: (1) the suspect threatens the officer or someone else
b. 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