CRIMINAL PROCEDURE 2023

E-01

Professor Laura Greenberg-Chao

Lgreenberg.chao@nesl.edu
Mondays 6-7:25
Wednesdays 7:35-8:55 pm

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 Short Answer
• Police receive an anonymous tip that Tommy a white man in a
blue sweater sitting on a bench in the park, has an illegal gun in
his pocket
• Police arrive at the park and see a white man in a blue sweater
on the bench
• Police put hand on Tommy’s shoulder and tell him they need to
ask some questions
• Tommy tries to get the gun out of his pocket and put it on the
ground without them seeing but they see what he is doing and
arrest him
• What will the judge decide about Tommy’s suppression
hearing?
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 HYPO
• Officer Jay is patrolling an area in NYC that is well-
known for the drug trafficking
• Over several hours, Officer Jay sees Suspect talking to
several people Officer jay knows are drug addicts
• Officer jay stops Suspect at a nearby restaurant and
orders him to step outside
• Suspect steps outside, and Officer Jay places his hand
on Suspect’s chest while he questions suspect
• Feeling what he thinks is drugs, officer jay reaches into
suspect’s shirt pockets and pulls out a bag of drugs
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 4th Amendment Checklist (seizures of
people)
Was there a 4A seizure of a person?
a) Arrest?
1. need probable cause
2. need an arrest warrant (or other lawful entry) if the
arrest is in D’s home/REP
3. Yes a 4A seizure
b) Consensual encounter?
1. Needs no suspicion
2. Suspect can leave at any time, or consent to stay/answer
questions
3. Not a seizure under the 4A
c) 4A seizure/Terry stop/temporary investigative detention
1. Would a reasonable person in D’s position believe he/she/they
are not free to leave?
2. If 4A seizure, PO needs reasonable suspicion that suspect is
involved in a crime in order to make the seizure 4
 4th Amendment Checklist (seizures of
people continued)
c)
3. If there was a seizure of a person based on RS – were the scope
and duration of the seizure reasonable?
a) police can detain briefly to continue investigation (to
investigate the reason for the seizure)
b) police can conduct a pat-frisk for weapons only if there is RS to
believe D is armed and dangerous
- if contraband is in plain view, can seize it
c) If police investigation increases suspicion to warrant more
investigation, police can continue to investigate
d) If police investigation increases suspicion to probable cause,
police can arrest
e) If police investigation does not result in PC, must let D go (unless
consent!) 5
Level of intrusion vs. standard of justification
Subject confronted by police, but free to leave
- No justification/no suspicion required
- Special needs search (admin, school, prison,
etc)
- Sometimes no suspicion, sometimes RS,
- Suspect confronted by police, and not free to
leave (seizure)
- RS that D is involved in criminal activity

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 Level of intrusion vs. standard of
justification (continued)
- Frisk (pat-down)
- RS criminal activity afoot & RS armed/dang.
- Arrest -
- probable cause, warrant if home
- Full search –
- probable cause, warrant or warrant
exception

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 Hypo 1
• Officer is on routine patrol. Officer sees Rob,
who he recognized as a suspect in a robbery
from two weeks earlier that had been
investigated by a different team of officers
(officer was not involved in the investigation).
Officer does not have probable cause. Can
officer briefly detain Rob to question him
about the robbery?

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 RS Exercise - 1

Officer: I was walking down Stuart Street, which

is part of my regular foot patrol, and I noticed a
guy who I hadn’t seen before. He looked like he
was up to no good.

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 RS Exercise -2

Officer: I was walking down Stuart Street and

heard someone – (who I did not know but later
learned to be Mr. A) yell: “Hey, that guy just
reached into my pocket and stole my wallet!”
Mr. A was pointing at someone, and I noticed an
unusual bulge in that person’s front pocket.

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 RS Exercise - 3
- Officer X sees Sally Suspect come out of a well-
known crack house where the police have
responded numerous times to stop violence.
- Officer X knows Sally from several arrests in the
past few years where Sally was involved in a gang
assault.
- Sally looks to the left (where Officer X is) and then
starts walking away from Officer X
- Officer X orders Sally to stop, and she does
- Officer X searches Sally, feels a lump in her pocket,
squeezes it, thinks it is crack, and removes it
- LAWFUL? 11
 Wardlow- Fruit of the poisionous drug
• Presence in a high-crime area – on its own – is
not enough for RS for a Terry
stop/investigative detention
• Ignoring police/refusing to cooperate– on its
own – is not enough for RS
• BUT – presence in a high-crime area +
unprovoked flight = sufficient RS for a stop

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 Terry stop: Exercise 4A
• Officer J sees Daniel Driver run a red light
• Officer J pulls Daniel Driver over
• Officer J starts to write a ticket
• While she’s doing that, Officer K drives by – makes
a U-turn, and stops next to them
• Officer K takes her drug dog out of the car and
walks him around Daniel Driver’s car
• Officer J is still working on the ticket
• The dog alerts on the trunk
• The officers search the trunk and find drugs
• Is this a lawful search?
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 Analysis for 4A
1. Is the dog sniff a 4A search? NO. Caballes. A
binary search of the outside of the car does
not implicate a REP.
2. Was the stop of the car lawful?
- Yes. The initial stop was justified by the traffic
violation, and Officer J was acting within the scope of
the search – so it started as a lawful search.
3. Was the dog sniff within the scope of the initial
search?
- Yes. Caballes. No additional suspicion needed
because dog sniff did not prolong the stop or change
its nature. 14
 Terry stop Exercise 4B
• Officer J sees Daniel Driver run a red light
• Officer J pulls Daniel Driver over
• As Officer J approaches the driver’s side window, she
radios for backup, saying “I got a feeling about this
guy. Can you bring K-9 the drug sniffing dog over?”
• She then makes small talk with Daniel Driver,
keeping him there until K-9 arrives.
• Officer J starts to write the ticket
• K-9 does the sniff and alerts on the trunk
• Police search the trunk
• Is the search lawful?
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 Twist on Review Problem 1
1. Police see D's parked car in violation of a few
traffic rules, and as the officers approach, D makes
some movements inside the car
2. As standing at driver’s window, officer sees what he
believes to be the handle of a knife under D's seat.
3. Officer orders D out, frisks him, doesn't feel
weapons but "feels something that he believed to be
a bag of marijuana" and he then asks D, "is that
marijuana?" and D answers "yes."
4. Officer reaches into D's pocket and pulls out the
marijuana, and then arrests D.

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 REASONABLENESS OF POLICE CONDUCT
DURING SEIZURE (cont.)
• Rodriguez –
– valid traffic stop
– But officer concluded “traffic” business
before dog sniff
– dog sniff prolonged detention
unreasonably

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 Review problem 2

1. When does the 4A apply? When, if at all, is D

seized?
2. At the moment of the seizure, did the police
have RS to believe D was involved in criminal
activity?
3. Were the police actions during the seizure
reasonable?

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 REASONABLENESS OF POLICE CONDUCT
DURING SEIZURE (cont.)
• Fla v. Royer
– Questioning on the airport concourse was a
seizure
• And was justified by RS
• And was reasonable (limited investigatory detention,
just asking questions)
– “asking” suspect to come with them was a seizure
• Not justified by RS
• And unreasonable (prolonged detention, not justified
by the suspicion for the stop)

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 4th Amendment Checklist (continued)
6. Was there a 4A seizure of a person?
a) Arrest?
1. need probable cause
2. need an arrest warrant (or other lawful entry) if the
arrest is in D’s home/REP
3. Yes a 4A seizure
b) Consensual encounter?
1. Needs no suspicion
2. Suspect can leave at any time, or consent to stay/answer
questions
3. Not a seizure under the 4A
c) 4A seizure/Terry stop/temporary investigative detention
1. Would a reasonable person in D’s position believe he/she/they
are not free to leave?
2. If 4A seizure, PO needs reasonable suspicion that D was involved
in criminal activity in order to make the seizure 20
How to stop the consensual encounter?
• Process of elimination
• Don’t think about “consent” (for many of us
we would never feel free walking

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 4th Amendment Checklist (continued)
7. If there was a seizure of a person based on RS – were
the scope and duration of the seizure reasonable?
a) police can detain briefly to continue
investigation (to investigate the reason for the seizure)
b) police can conduct a pat-frisk for weapons only if
there is RS to believe D is armed and dangerous
- if contraband is in plain view, can seize it
c) If police investigation increases suspicion to
probable cause, police can arrest
d) If police investigation does not result in PC, must
let D go (unless consent!)
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TERRY FRISK: “Reasonable belief that D was
armed and dangerous”
- Look at all the circumstances
- Some factors:
- Involved in violent crime
- Suspicious bulge
- Furtive movements
- Unprovoked flight
- Blading the body (turning the body away from the police as if
they are trying to hide a weapon)
- Knowledge that this suspect had previously committed a violent
crime or been armed
- Nervous and/or evasive behavior - itself not enough but in
conjunction with any of these factors would be enough
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 Terry frisk: method of frisk
If there is RS to believe that D is armed and
dangerous, police can do a Terry frisk:

- Superficial exploration
- Over the clothing
- Only searching for weapons
- If they feel a weapon – or something
immediately apparent as contraband – only then
can police reach into pockets or do further
intrusion to reach the object 24
 CAR STOP RULES
- Officer may stop a vehicle and detain it briefly if
there’s RS to believe that the law has been
violated
- Includes MV violations
- Can officer order driver and passengers out?
- Yes, Mimms (SupCt says minimal intrusion justified by
safety concerns)
- When is dog sniff of exterior permitted?
- When it does not prolong the otherwise justifiable
stop (Caballes)
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 CAR STOP RULES
- If the officer has reason to believe that driver
or passenger may be armed or dangerous…
- Can conduct a frisk
- And a protective sweep of the interior of the car
within the subject’s control
- Even if the subject has been moved outside the
car bc of possibility subject could access
- Justified by safety concerns
- Michigan v. Long

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 Protective Sweep of home/under Terry
principles)
- Terry rationale applies to sweeps of home
where arrest is being made
- When officer has specific and articulable facts
that someone posing a danger might be hiding
- Can engage in a limited search for the person
- Limited to areas where someone might hide
- And only as long as necessary to dispel the
danger
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 Terry Frisk of car
• Michigan v. Long
• If during a car stop, police have or developed RS to
believe that the suspect is armed or dangerous
• Police can frisk the suspect, AND
• “frisk” the car
-Passenger compartment
-Containers (where a weapon might reasonably be)
• Even if suspect is no longer in car
• Justified by safety reasons
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