CONSTITUTION DAY

1. CONSTITUTION DAY Rights of the Accused: The Arrest

2. An anonymous tip came into the police department that a high school student with a red backpack and walking stick would be carrying a significant amount of marijuana in the backpack. The tipster described the suspect and the location where he would be walking. Officers were apprised of the tip at roll call. Officer Ramirez heard the tip at roll call. The area stated in the tip is the area of Officer Ramirez’s patrol.

3. As Officer Ramirez was on patrol, he saw a teenager matching the description of the person in the tip. The backpack was red and he was walking with a walking stick around the time that the tipster stated. Officer Ramirez turned on his lights and siren. He pulled over and asked the person to stop. The person was Joe. Should Joe stop?

4. Why should Joe stop when asked by Officer Ramirez? What Constitutional amendment is applies at this point?

5. FOURTH AMENDMENT The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

6. A police officer may approach and detain a person for the purpose of investigating possible criminal behavior even if there is no probable cause to support an arrest. A brief detention does not violate the Fourth Amendment if the officer has a reasonable and articulable suspicion that the person has committed or is about to commit a crime.

7. Does Officer Ramirez have a reasonable and articulable suspicion in order to stop Joe or is there an unlawful seizure?

8. Joe walked over to the front of the police vehicle. Officer Ramirez asked Joe his name. Joe refused to answer the question. Can Joe refuse to identify himself? When an officer approaches a person and seeks voluntary cooperation through noncoercive questioning, there is no restraint on that person’s liberty, and that person is not seized.

9. Joe provided his identification to Officer Ramirez. Officer Ramirez ran the information through LEIN and there were no warrants. Officer Ramirez returned Joe’s identification and asked Joe where he was going. Joe did not answer. Officer Ramirez asked to search the backpack. Joe did not answer and began to walk away. Officer Ramirez put his hand on Joe’s shoulder and stated that he could not leave.

10. Is there a seizure when Officer Ramirez stopped Joe from leaving? “A ‘seizure’ within the meaning of the Fourth Amendment occurs only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave.” People v Jenkins, 472 Mich 26, 32 (2005)

11. Officer Ramirez led Joe to the front of the police vehicle and patted Joe down. If Joe is not under arrest, can Officer Ramirez pat down Joe?

12. During an investigatory stop based on a reasonable and articulable suspicion, a police officer is entitled to conduct a limited search of the outer clothing of the person to determine if the person has any weapons that may be used against the police officer.

13. While Officer Ramirez was patting Joe down, he felt something that he immediately determined to be a pill bottle underneath Joe’s sweatpants in the leg and groin area. Officer Ramirez knew that controlled substances are sometimes hidden in pill bottles near the groin area. Officer Ramirez removed the bottle and opened it. It was a prescription drug from Joe’s doctor. Was the search for the pill bottle unreasonable?

14. The plain feel exception to the warrant requirement allows seizure without a warrant of an object felt during a legitimate patdown search for weapons when the identity of the object is immediately apparent and the officer has probable cause to believe that the object is contraband.

15. Officer Ramirez asked Joe why the prescription bottle was located in his groin area. Joe did not answer. Officer Ramirez asked Joe for consent to search the backpack and Joe stated, “No.” Officer Ramirez opened the backpack and found what appeared to be two packages of marijuana. Officer Ramirez then handcuffed Joe and advised that he was under arrest for possession with intent to deliver marijuana. Was the search of the backpack reasonable?

16. The applicable test in determining the reasonableness of an intrusion is to balance the need to search, in the public interest, for evidence of criminal activity against invasion of the individual’s privacy. Generally, a search conducted without a warrant is unreasonable unless there exist both probable cause and exigent circumstances establishing an exception to the warrant requirement.

17. Probable cause to search exists when facts and circumstances warrant a reasonably prudent person to believe that a crime has been committed and that the evidence sought will be found in a stated place. Whether probable cause exists depends on the information known to the officers at the time of the search. The recognized exceptions to the warrant requirement are exigent circumstances, consent, and plain view.

18. The exigent circumstance exception is applicable where the police have probable cause to believe that an immediate search will produce specific evidence of a crime and that an immediate search without a warrant is necessary in order to (1) protect the officers or others, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of an accused. Do any of these exceptions apply in this case?

19. The plain view exception allows the seizure of objects within the plain view of an officer who has a right to be in the position to have that view. Three conditions must be satisfied: • There must be prior justification for the officer’s intrusion into an otherwise protected area. • The evidence must be obviously incriminatory or contraband. • The discovery must be totally inadvertent.

20. The consent exception permits searches and seizures when consent is unequivocal and specific, and freely and intelligently given. Ordinarily, the consent to search is given by the person affected. A third party may consent to the search when the consenting person has an equal right of possession or control over the premises. A consent can be valid even if the person is not apprised of his right to refuse consent.

21. Generally, if evidence is unconstitutionally seized, it must be excluded from trial. Exclusion of improperly obtained evidence serves as a deterrent to police misconduct and preserves judicial integrity. The exclusionary rule applies not only to evidence improperly seized during a search without a warrant, but to evidence subsequently seized pursuant to a warrant as a result of an initial illegal search.

22. Evidence is not to be excluded if the connection between the illegal police conduct and the discovery, search, and seizure of the evidence is so attenuated as to dissipate the taint, such as when the government learns from evidence from an independent source or would have inevitably discovered the evidence regardless of the unconstitutional conduct. Further, the exclusionary rule applies only if the evidence was obtained by official impropriety which was directed at the person moving for suppression. The test is whether the person had a reasonable expectation of privacy in the object or area of the intrusion.

23. Officer Ramirez took Joe to the police department. Joe was fingerprinted and his mug shot was taken. Officer Ramirez then took Joe to a interrogation room with only one chair. Joe had to stand with his hands cuffed behind his back. Officer Ramirez questioned Joe regarding his intentions with the marijuana, who he obtained it from, and whether it was his. For the first few hours, Joe said nothing. He was getting hungry, tired, and sore from being in the interrogation room for four hours without sitting down. Are there any concerns at this point?

24. After three and a half hours of interrogation and standing, Joe admitted that the marijuana was his, that he intended to sell it, and that the marijuana was given to him by his stepfather, Alex, who was forcing him to sell the marijuana at school. Joe was held for arraignment on charges of conspiracy and intent to deliver. After Joe confessed to the marijuana and implicated Alex, Officer Ramirez requested a search warrant for Alex’s home based on the statements made by Alex and uncovered 15 marijuana plants in the home. Alex was arrested and charged as well. What Constitutional provision is being affected?

25. FIFTH AMENDMENT No person shall be held to answer for a capital, or otherwise infamous crime, unless a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject to the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

26. What should Joe have been given prior to interrogating him at the police department? MIRANDA WARNINGS You have the right to remain silent. Anything you say can be used against you in court. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you at no cost.

27. Miranda warnings must be given to an individual in custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning. Mirandav Arizona, 384 US 436, 479 (1966) Can a person waive his or her right to remain silent?

28. FACTORS TO CONSIDER WHETHER WAIVER IS VOLUNTARY, KNOWING, AND INTELLIGENT: • Age of the accused; • Intelligence level of defendant; • Extent of previous experience with police; • Repeated and prolonged nature of questioning; • Length of detention before giving statement in question; • Lack of any advice to the accused of his constitutional rights;

29. Any unnecessary delay in bringing before magistrate before giving confession; • Any deprivation of food, sleep, or medical attention; • Whether there was any physical abuse; and • Whether there were threats of abuse. • The ultimate test of admissibility is whether the totality of the circumstances surrounding the making of the confession indicates it was freely and voluntarily made. Did Joe voluntarily, knowingly, and intelligently waive his rights?

30. Before Joe admitted to possessing the marijuana for sale, his stepfather retained an attorney. The attorney, John B. Good, went to the police department and asked to speak with his client. His request was denied. No one told Joe that he had an attorney wishing to speak with him.

31. In Michigan, if an retained attorney is immediately available and the police fail to notify the suspect and the suspect confesses without the attorney present, then the waiver is not knowing and intelligent. This differs from a ruling made by the United States Supreme Court with regards to the federal Constitution. The U.S. Supreme Court held that events outside the room where a suspect is housed have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.

32. How can Michigan law differ from the United States Supreme Court’s decision? The Michigan Constitution imposes a stricter requirement for a valid waiver of the rights to remain silent and to counsel than imposed by the federal Constitution.

33. Shortly after arresting Alex, Officer Ramirez brought Joe into the same interrogation room. At this time, Officer Ramirez gave the Miranda Warnings to Joe and asked if Joe waived them. Joe signed a waiver and admitted to possessing the marijuana with the intent to sell it. Does this second interrogation with Miranda Warnings fix the issues with the previous interrogation?

34. No. The U.S. Supreme Court held that “[t]hese circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that [the suspect] retained a choice about continuing to talk.”

35. Alex files a motion to suppress Joe’s statement regarding Alex’s involvement for failure to provide Miranda warnings to Joe. Will Alex be successful? No. A person does not have standing to raise the issue of violation of rights of third parties.

36. Should Officer Ramirez have searched the backpack without a warrant? Is Joe’s confession admissible against him? Why? Is Joe’s confession admissible against Alex?

37. The End.. . . . . . until court.