Rights of the Accused: The Arrest

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CONSTITUTION DAY

• Rights of the Accused The Arrest

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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 Ramirezs patrol.
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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?
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Why should Joe stop when asked by Officer Ramirez?

• What Constitutional amendment is applies at this
  point?

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

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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
persons liberty, and that person is not seized.
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Joe provided his identification to Officer
Ramirez. Officer Ramirez ran the information
through LEIN and there were no warrants. Officer
Ramirez returned Joes 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 Joes shoulder
and stated that he could not leave.
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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)
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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?
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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.
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While Officer Ramirez was patting Joe down, he
felt something that he immediately determined to
be a pill bottle underneath Joes 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 Joes doctor. Was the
search for the pill bottle unreasonable?
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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.
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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?
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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 individuals 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.
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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.
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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?
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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
  officers intrusion into an otherwise protected
  area.
• The evidence must be obviously incriminatory or
  contraband.
• The discovery must be totally inadvertent.

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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.
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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.
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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.
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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?
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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 Alexs 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?
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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.
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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.
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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. Miranda v Arizona,
384 US 436, 479 (1966)
Can a person waive his or her right to remain
silent?
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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

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• 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.
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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.
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How can Michigan law differ from the United
States Supreme Courts 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?
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No. The U.S. Supreme Court held that these
circumstances must be seen as challenging the
comprehensibility and efficacy of the Miranda
warnings to the point that a reasonable person in
the suspects shoes would not have understood
them to convey a message that the suspect
retained a choice about continuing to talk.
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Alex files a motion to suppress Joes statement
regarding Alexs 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.
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Should Officer Ramirez have searched the backpack
without a warrant?
Is Joes confession admissible against him? Why?
Is Joes confession admissible against Alex?
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The End.. . .
. . . until court.