Chapter Three Arrest and Custody

1. Chapter Three Arrest and Custody He always has an alibi, and one or two to spare: At whatever time the deed took place—Macavity wasn’t there. — T. S. Eliot, “Macavity: The Mystery Cat,” (1939)

2. KEY WORDS Terms to understand for this chapter… • Resisting Arrest • Stop-and-Frisk • Summons • Temporary Detention • Terry Stop • Arrest • Booking • Consular Immunity • Diplomatic Immunity • Legislative Immunity • Miranda Warning • Private Person Arrest • Reasonable Suspicion

3. OBJECTIVES After completing this chapter, you should be able to… • Explain the requirements of a valid arrest. • Discuss the issues involving stop-and-frisk. • Describe the immunities from arrest. • Illustrate the Miranda requirements. • Discuss the issue of using force in making an arrest. • Explain the concept of territorial jurisdiction to makean arrest.

4. (cont.) OBJECTIVES After completing this chapter, you should be able to… • Identify and describe the booking process. • Explain the protections granted an out-of-state witness

5. Arrest of the Law Violator • Under the Fourth Amendment, there are three levels of interaction between the police and an individual: • Consensual encounters - an individual is not detained & police have not indicated he/she is not free to leave. • Detention - police must have communicated in some manner, orally or by action, a person is not free to leave. • police need reasonable suspicion based on articulable facts • Arrest - involves a person being taken into custody. • typically by physical restraint (handcuffs, etc.) or informing the person that he/she is under arrest • a valid warrantless arrest, requires probable cause

6. Arrest of the Law Violator • When a person violates a criminal law, traditions generally demand society should take some action. • an arrest should be made • Originally, the members or citizens of society were responsible for taking the violator into custody. • failure to do so, or even withholding information abouta known crime from the authorities was a violation • As law enforcement agencies were created, citizenswere relieved of much responsibility for making arrests. • yet the citizen has not given up the right to make a private person arrest

7. Arrest of the Law ViolatorPrivate Person Arrest • A private person arrest is an arrest performed by a civilian who lacks official government authority. • sometimes referred to as a citizen’s arrest, legal in every state • Though discouraged, thousands of private personarrests are made annually in this country. • primarily by security guards employed by private companies • Private person arrest generally requires the crime to have been committed or attempted in the presence ofthe arresting person. • some states provide for arrest of a felon even though thecrime occurred in the absence of the private party

8. Arrest of the Law ViolatorLegrand v. Bedinger • In Legrand v. Bedinger, the court stated “the term ‘arrest’ is derived from the French, arrester.” • “signifies restraint of a man’s person; depriving him of his …will and liberty, …obedient to the will of the law” • Legally, an arrest has been defined as the taking of a person into custody in the manner authorized by law. • It has been held that probable, or reasonable, cause is shown if a person of ordinary prudence would be ledto believe that a crime had been committed. • but it must be more than a mere suspicion that acrime had been committed

9. An officer from the Santa Ana, CA police department searching an arrested male suspect on street. Arrest of the Law ViolatorArrest by a Law Enforcement Officer • a law enforcement officer or peace officer is a person employed by some branch of the government and sworn to uphold the laws of the US and the state, county, orcity by which he or she is employed

10. Arrest of the Law ViolatorArrest by a Law Enforcement Officer • Law enforcement or peace officers may be placed in four basic categories. • federal officers, employed by the US government • state officers, employed by the state • sheriffs, employed by the county or parish • city police officers, employed by their respective cities

11. Gail Atwater, left, poses with her two children Anya, center, and Mac, November 30, 2000, at her homein Lago Vista, Texas. The 48-year-old soccer mom was jailed in 1997 because she and the children did not wear seatbelts while riding in the family pickup truck.The U.S. Supreme Court held in 2001 her arrestdid not violate the Constitution’s ban on unreasonable arrests and searches. Arrests and WarrantsArrests Without a Warrant • Arrest without a warrant is the most common form. • historically always allowed under the common law • courts hold requiring a warrant for every arrest as impractical

12. Arrests and WarrantsArrests Without a Warrant • Police may not enter private homes to make warrantless arrests unless there are exigent or emergency circumstances or consent. • courts have ruled hot pursuit of a suspect as he/she runsinto a home does not require a warrant • additionally, if police believe waiting for a warrant willallow the suspect to destroy evidence, they may enter and make an arrest without a warrant

13. Arrests and WarrantsArrests With a Warrant • An arrest warrant is a written order issued by the proper judicial officer, upon a showing of probable cause, commanding the arrest of a particular person. • The Supreme Court, though upholding warrantless arrests, has stated that the deliberate determinationof magistrates is preferred over the hurried actionsof police officers. • because it places determination of finding probablecause in the hands of a neutral magistrate • Some jurisdictions allow for the use of telephonic arrest warrants.

14. Arrests and WarrantsArrests With a Warrant - Requirements • Arrest warrants must include certain elements: • The caption or title of the court from which the warrant is issued, date of issuance of the warrant, and the signature of the issuing official • The name of the person to be arrested and description with particularity of the person to be seized. • A description of the offense, normally is described in language of the statute or law the suspect violated. • A command that officers take the suspect into custody and bring him or her before the proper judicial officer.

15. In 1968 Terry v. Ohio developed the conceptof searches of differential intrusiveness, and the concept of stop-and-frisk. A Kansas City, MO police officer removes a suspect’shandgun as he and another suspect lean against theexterior wall of a home and are frisked. Stop-and-Frisk and Other Detentions • Until 1967 search was an all-or-nothing concept — subject to probable cause and warrant requirements.

16. Stop-and-Frisk and Other DetentionsTerry v. Ohio • In Terry, an officer observed Terry and two other men walking back & forth in front of a store, and decided the men were casing the store for a possible robbery. • He grabbed Terry, turned him around, and patted him down, and found a pistol in ex-convict Terry’s pocket. • the Court found no Fourth Amendment violation • The Court held a police officer may temporarily detain a person on reasonable suspicion of criminal activity. • and may pat down the person for weapons on reasonable suspicion the pat down is necessary for safety reasons

17. Stop-and-Frisk and Other Detentions • Stop-and-frisk is less than an arrest & rules applied to temporary detention also apply to stop-and-frisk. • It was a standard practice to stop suspicious persons in public places to question them or conduct investigations. • There were Fourth Amendment questions, as officers generally do not have probable cause to detain and question individuals.

18. Stop-and-Frisk and Other DetentionsTemporary Detentions • Mere temporary detention for questioning is not considered to be an arrest. • if police restraint goes beyond that reasonably necessaryfor questioning, an arrest may result • Temporary vehicle detention is less than a full arrest • probable cause necessary to support a temporary detentionis less than required for full arrest • Detention starts the moment the officer directs a vehicle to stop—as when an officer turns on the red lights. • It is not a detention if the vehicle parked & the officer asks the driver for his/her license or identification.

19. Stop-and-Frisk and Other DetentionsResonable Suspicion • Detention requires at least reasonable suspicion, based on specific facts that can be articulated to a court. • in People v. Remiro, an appellate court upheld stoppingof a vehicle on the officer’s reasonable suspicion • People v. Dominguez upheld detention of a vehiclewhen identities of persons in the vehicle were unknownand a warrant existed for the registered owner • Remiro and Dominguez control only in California. • though their rationale appears accepted by most other states • A “wanted flyer” or a similar notice is sufficient basisto detain a vehicle and its occupants.

20. Stop-and-Frisk and Other DetentionsDistiguishing Arrests & Terry Detentions • The leading Supreme Court decision is US v. Sharp. • in which the length of the detention was considered • The Court indicated a Terry-type stop as ordinarily of short duration. • no longer than needed to effectuate purpose of the detention • A warrantless protective sweep of a residence by police making lawful arrest in the residence is considered legal. • if police have reasonable suspicion the residence may contain an individual who poses a danger to the officers or to others • The sweep should be a quick & limited search and narrowly confined to a cursory visual inspection.

21. Territorial Jurisdiction to Make Arrest • It is important to determine if an officer the authority to make an arrest, particularly when he/she has no warrant. • if the officer does not have authority, the arrest will be declared unlawful • A significant factor is whether the officer was in his/her territorial jurisdiction. • It long held that if an outlaw outdistanced a sheriff tothe county line, the sheriff had to discontinue pursuitas he had no authority to arrest in the next county. • to prevent escape of an outlaw under these circumstances,the hot pursuit rule was developed

22. Territorial Jurisdiction to Make ArrestUniform Act of Fresh Pursuit • Today, most states have adopted what is known as the Uniform Act of Fresh Pursuit. • if an officer is in hot or fresh pursuit of an offender, he/she can follow the offender into another jurisdiction to make an arrest • It is generally held if a pursuit is uninterrupted and continuous, it is a fresh pursuit. • there is no specific distance the officer may travel within the state to make the arrest • The act provides that after arrest is made, the officer must take the person before a local magistrate. • for a hearing to determine the lawfulness of the arrest

23. Territorial Jurisdiction to Make ArrestLimited Arrest Powers • Today a few states grant local officers the right to make an arrest without a warrant anywhere in the state. • based on the theory that when sworn, the officer swears to uphold the constitution & laws of the state as well as local ordinances, giving the officer statewide arrest powers • In most states the local officer has authority to make arrests without a warrant only within the territorial jurisdiction in which he/she is employed. • except in fresh pursuit instances

24. Territorial Jurisdiction to Make ArrestLimited Arrest Powers • Authority has been granted in some states permitting lawful arrest beyond the officer’s area with permission from the chief or sheriff where the arrest is to be made. • based upon an old posse comitatus right of a sheriff • Under posse comitatus, the arresting officer is, in a sense, a temporary officer of the jurisdiction in which the arrest is made. • Right to arrest beyond the officer’s area of employment has been granted in instances when the offender is wanted in the officer’s area of employment.

25. Territorial Jurisdiction to Make ArrestState Police Agencies • All states except Hawaii have some type of state police or law enforcement system with statewide jurisdiction. • states vary in power of the state police to make arrests • In addition, a number of investigative agencies in most states have limited authority and arrest powers. • employed to perform specific duties, such as game wardens • Although the territorial jurisdiction of state police is restricted to the state boundaries, the Uniform Act of Fresh Pursuit is applicable to these agencies as well as to local officers.

26. Territorial Jurisdiction to Make ArrestFederal Law Enforcement Agencies • Technically, the only peace officers of the US government are Justice Department US marshals. • as with the states, a number of federal investigativeagencies have emergency arrest powers • All federal officers have territorial jurisdiction throughout the US and its possessions. • The Federal Bureau of Investigation (FBI), established in 1908, has investigative jurisdiction over all federal violations not specifically assigned to other agencies. • created in part because of other agencies’ inability to investigate & arrest corrupt politicians and business leaders

27. Territorial Jurisdiction to Make ArrestFederal Law Enforcement Agencies • The Federal Drug Enforcement Administration is now a part of the FBI. • The Immigration & Naturalization Service, of which the Border Patrol is a part, is in the Department of Justice. • The US Treasury Department Secret Service was created in 1865 to investigate & curtail counterfeiting. • after the assassination of President William McKinley in 1901, the Secret Service was charged with protecting the president • Other agencies within the US Treasury Department are Customs; Alcohol, Tobacco, and Firearms Service; the Internal Revenue Service; and the US Postal Service.

28. Territorial Jurisdiction to Make ArrestDepartment of Homeland Security • After the terrorist attacks of September 11, 2001, President George W. Bush created the Office of Homeland Security, with mission to do the following: • prevent terrorist attacks within the US; • reduce America’s vulnerability to terrorism • minimize the damage and recover from attacks that do occur • Tom Ridge was the first director.

29. Territorial Jurisdiction to Make ArrestDepartment of Homeland Security • The Department of Homeland Security has four divisions: • Border and Transportation Security - responsible for securing borders and transportation systems, • Emergency Preparedness and Response - ensures the preparedness of emergency response professionals. • Chemical, Biological, Radiological, and Nuclear Countermeasures - leads efforts in preparing for and responding to the full range of terrorist threats involving weapons of mass destruction.

30. Territorial Jurisdiction to Make ArrestDepartment of Homeland Security • The Department of Homeland Security has four divisions: • Information Analysis and Infrastructure Protection - merges under one roof the capability to identify and assess current and future threats to the homeland, map those threats against our current vulnerabilities, inform the president, issue timely warnings, and immediately take or effect appropriate preventive and protective action.

31. Force in Effecting an Arrest • Statutes of most states provide that any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape, or to overcome resistance. • but there seems to be doubt as to degree of force thatmay be used by a private person • It is generally held an officer may break open a door or window where the person to be arrested is located. • unless there is life danger to the officer or others, the officer must first demand admittance & explain why it is desired

32. Force in Effecting an Arrest • The officer may not use force disproportionate to resistance met. • if undue force is used, the officer could be guilty of violating the civil rights of the accused • If excessive force was used in a particular instance is a matter determined by a board of inquiry, jury, or judge. • the question is whether force used was that an ordinary, prudent person would have used under the circumstances • Mistreatment of an accused once he/she is under control could also be a violation of the accused’s civil rights.

33. Force in Effecting an ArrestCalling for Assistance • In making an arrest, an officer or a private person may call upon as many persons as are deemed necessary for assistance in making the arrest. • Most states make it a violation to refuse to assist an officer making an arrest when summoned to do so. • again, based on the posse comitatus policy that a sheriffhad the authority to deputize members of a community • In general, no prosecutive action can be taken against anyone for refusing to assist the private person in making an arrest.

34. Force in Effecting an ArrestCalling for Assistance • When a person responds to an officer’s call or demand for assistance, he/she has the same rights and privileges as the officer. • in effect, a temporary law enforcement officer, with theright to use reasonable force to effect the arrest • If the person called upon to assist the officer acts in good faith, he/she is protected from civil liability.

35. Force in Effecting an ArrestResisting Arrest • Generally, it is a violation to willfully resist, delay, or obstruct a peace officer in the performance of his/her duty, including making an arrest. • most states are silent on resisting arrest by a private person • States have provided that a person is under duty to refrain from using force or weapon to resist such arrest. • It was previously held at common law that a person could resist an unlawful arrest. • followed in some states whether the arrest is beingmade by an officer or a private person

36. Force in Effecting an ArrestResisting Arrest • Although a person may not resist an unlawful arrest in most states, he/she is not without recourse. • one is entitled to seek immediate release from custody bya writ of habeas corpus proceeding • and may sue those responsible for the illegal arrest for damages in civil court • Once the arrest of a suspect is completed, he/she should be searched for weapons and evidence. • Depending upon the circumstances of the case, it may be advisable to search the immediate area where the arrest took place.

37. Miranda and Its Effect • Before the US Supreme Court decided Miranda v. Arizona, confessions and accompanying interrogations were decided on a case-by-case method. • This approach reviewed the circumstances surrounding the interrogation to determine whether the suspect’s will was broken by the police. • The interrogation was considered improper if it violated the suspect’s due process rights.

38. Miranda and Its EffectPre-Miranda Techniques • In Brown v. Mississippi, a defendant was tied to the tree and whipped until he finally confessed to murder. • the court held the confession was a product of coercion and brutality & violated Fourteenth Amendment due process rights • In Ashcraft v. Tennessee, a defendant was questioned continuously for two days regarding murder of his wife. • as the defendant was denied rest & sleep the entire time, the court held the confession was involuntary and inadmissible

39. Miranda and Its EffectPre-Miranda Techniques • In Escobedo v. Illinois, the defendant was arrested and interrogated for several hours at the police station. • Escobedo repeatedly requested to see his attorney, who was at the police station, demanding to see his client. • police refused both requests and finally obtained confession • The court held Escobedo was denied right to counsel, and no statement from him could be used at trial • the decision was not clear when right to counsel attaches • The stage was set for the US Supreme Court to clear up the confusion that had resulted from its previous rulings.

40. Miranda and Its EffectThe Case • In Miranda, the defendant was arrested at home in Phoenix, Arizona, in connection with the rape and kidnapping of a female. • and was taken to a police station for questioning • At the time, he was twenty-three years old, poor, and basically illiterate. • After being questioned for two hours, he confessed to the crime.

41. Since 1966, police have been required to advise an in-custody suspect using the Miranda warning. When Ernesto Miranda was killed in bar fight in 1976, he had several of the cards in his possession. He was trading the autographed Miranda cardsfor drinks. (Source: Getty Images, Inc. Hutton Archive Photos.) Miranda and Its EffectErnesto Miranda Ernesto Miranda, 27, listens as the jury deliberates his case in Phoenix, Arizona, February 24, 1967. The landmark decision requiring police to inform suspects oftheir rights was named after Miranda. (Source: AP Photo.)

42. Miranda and Its EffectThe Ruling • The Supreme Court issued its now famous Miranda warning requirement stating the following: • “We hold that when an individual is taken into custody or otherwise deprived of his freedom …the privilege against self-incrimination is jeopardized… He must be warned prior to any questioning that he has a right to remain silent, that anything he says can be used against him in a court of law, that he has a right to an attorney, and that if he cannotafford an attorney one will be appointed for him priorto any questioning if he so desires.”

43. Miranda and Its EffectThe Safeguards • In Miranda v. Arizona, the Supreme Court established safeguards for individuals being interrogated by police. • most people know the Miranda decision requires police officers to advise defendants of their constitutional rights • In reality, Miranda established a four-prong test to be satisfied by affirmative answers to all four questions before a suspect’s statements can be admitted. • Was the statement voluntary? • Was the Miranda warning given? • Was there a waiver by the suspect? • Was the waiver intelligent and voluntary?

44. Miranda and Its EffectEroding of Miranda • Miranda did not prevent statements obtained in violation of its rules from being used to impeach credibility of a defendant who took the witness stand. • in Harris v. New York, the Court held it was proper to use such statements to determine whether the defendant was telling the truth • Voluntary statements made without having received the Miranda warning are admissible. • even though the defendant is later advised of his/her rights and waives those rights

45. Miranda and Its EffectEroding of Miranda • In Oregon v. Elstad, the defendant made incriminating statements without receiving his Miranda warning. • After being advised of his rights, he waived them and signed a confession. • the Court held the self-incrimination clause of the Fifth Amendment did not require suppression of the written confession because of the earlier unwarned admission • In Illinois v. Perkins, the Supreme Court held that an undercover officer posing as an inmate need not give a jailed defendant the Miranda warning before asking questions that produce incriminating statements.

46. Miranda and Its EffectEroding of Miranda • In Arizona v. Fulminante, the Court held the harmless error rule applicable to cases of involuntary confession. • In Davis v. US, the Court considered degree of clarity necessary for a suspect to invoke his Miranda rights. • In 2000, the Supreme Court, in Dickerson v. US, held the Miranda decision was of constitutional origin. • and therefore Congress may not overrule its scope or effect • After years of suspects avoiding interrogation, invoking Miranda, the Court is taking a more reasonable and practical approach to this controversial issue.

47. Immunity from ArrestDiplomatic • Diplomatic Immunity - international agreements between nations exchanging representatives are the bases for diplomatic immunity. • the purpose is to contribute to friendly relations and ensure efficient performance of diplomatic missions • While these persons have complete immunity from arrest, detention, or prosecution, it does not give them blanket authority to disregard the laws of the US. • if a member of the diplomatic corps commits a crime, the State Department may request that the member be recalled from the country

48. Immunity from ArrestConsular • Consular Immunity - consuls and deputies are also representatives of foreign nations, with only limited immunity.5 • in all cases, however, they are to be treated with due respect • Consular officers are not liable for arrest or detention pending trial except in cases of a serious felony. • immunity does not include family members or servants • Each member of these groups should have official identification in his/her possession • whereby a peace officer may determine the official status of the member and the immunity to which he/she is entitled

49. Immunity from ArrestLegislative • Legislative Immunity - most states have some typeof provision in their statutes granting limited immunity to legislative members. • Many of the states hold that legislative immunity relates only to arrest arising out of civil matters. • and there is no immunity from arrest on a criminal charge

50. Immunity from ArrestOut-of-State Witnesses • The Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases has been adopted by most of the states. • if a person enters a state in obedience of a subpoena totestify, he/she shall not be subject to arrest in connectionwith any crime committed in the state prior to his/her entrance into the state to testify • The person is also granted a reasonable time to leave the state after testifying without being subject to arrest. • but is not granted any immunity from arrest for a crimethat he/she may commit while in the state to testify