Search & Seizure

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in Maag v. Wessler[FN138] the court held the police had (Hint mental disability)

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lawfully arrested without a warrant an apparently mentally ill person for medical evaluation where there was probable cause that this person was mentally ill and dangerous to himself or others. Maag v. Wessler, 960 F.2d 773 (9th Cir.1991).

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What is required for an in presence arrest for driving under the influence?

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an in presence arrest may not be made for the misdemeanor of driving under the influence of liquor when an officer comes on the scene of an auto accident and finds the defendant there, even though the defendant is obviously intoxicated and admits that he had been driving the vehicle. People v. Burdo, 56 Mich.App. 48, 223 N.W.2d 358 (1974). See alsoUnited States v. Williams, 754 F.2d 1001 (D.C.Cir.1985) (court, cautioning it not sufficient there probable cause “that a misdemeanor has just been committed prior to the arrival of the police,” remands because of ambiguous record which defendant claims shows police merely saw him “fixing his pants” before a puddle of water, claimed insufficient re arrest for urinating in hallway); United States v. Fossler, 597 F.2d 478 (5th Cir.1979) (driving while intoxicated not in officer's presence where he saw defendant intoxicated and leaning against stopped car); Commonwealth v. Gallagher, 242 Pa.Super. 289, 363 A.2d 1274 (1976) (officers who came upon an intoxicated person sitting in auto with lights and engine off did not observe driving while intoxicated in their presence).

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where the offense is of a continuing nature what is the presence requirement for a warrantless misdemeanor arrest?

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The situation is different where the offense is of a continuing nature;[FN160] it is proper, for example, for an officer to arrest a man inside an airline terminal upon discovering the car that same man was observed driving some minutes earlier improperly parked outside, for the “offense of willful obstruction of traffic was continuing.”

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May police officers arrest absent warrant on information obtained from persons who are not police officers,

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We reiterate that this qualification should not be read as justifying warrantless misdemeanor arrests on other “reasonable” or “dependable” information. We especially emphasize that police officers may not arrest on information obtained from persons who are not police officers, e.g., victims, witnesses and informers or on the basis of information obtained from a police officer who is relying on information obtained from a person who is not a police officer.

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Must a misdemeanor have in fact been committed in the officer's presence, or instead that the policeman merely must have probable cause to believe that the misdemeanor has occurred in his presence.

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A few jurisdictions have adopted the latter formulation by statute,[FN169] but even in the absence of such a statute it is now not uncommon for courts to assert that a warrantless misdemeanor arrest may be made if the officer “has probable cause to believe the offense is being committed in his presence.”

United States v. Miller, 589 F.2d 1117 (1st Cir.1978) (misdemeanor arrest on in-presence basis permissible where “the facts confronting an officer give him probable cause to believe that the offense is being committed,” which means the officer “may draw reasonable inferences from the immediate observations of his senses”; thus, arrest for driving 30 m.p.h. over speed limit valid notwithstanding fact officer never clocked defendant, as officer knew how much of head start defendant had and that 90 m.p.h. speeds needed to catch him); Jakes v. State, 398 So.2d 342 (Ala.Crim.App.1981) (officer's senses must “afford him a fair inference that the offense was indeed being perpetrated at that point in time”); State v. Yunker, 402 So.2d 591 (Fla.App.1981) (“an arresting officer must have a ‘substantial reason’ … to believe from his observation … that the person ‘wasthen and there committing a misdemeanor in his presence’ ”); Windschitl v. Comm'r of Public Safety, 355 N.W.2d 146 (Minn.1984); Ajeani v. State, 610 P.2d 820 (Okl.Crim.App.1980) (officer's warrantless arrest of defendant for breach of the peace and intoxication lawful “where the arresting officer has probable cause, based on information coming to his senses or personal observation at the time, to believe that a misdemeanor … is being committed in his presence by the arrestee, … even though the arrestee is subsequently found innocent”); State v. Baysinger, 470 N.W.2d 840 (S.D.1991) (officer must have “probable cause to believe that a defendant is committing a criminal offense in his presence”); State v. Hornaday, 105 Wash.2d 120, 713 P.2d 71 (1986) (arrest lawful “if the arresting officer had probable cause to believe the crime was being committed in his presence”); State v. Hefner, 180 W.Va. 441, 376 S.E.2d 647 (1988) (requires only “reasonable belief that the defendant's actions actually constituted an offense,” not present here as swearing at officer not disorderly conduct).
Compare Mash v. Commonwealth, 769 S.W.2d 42 (Ky.1989) (rejecting earlier state authority that a misdemeanor arrest could be made on probable cause the misdemeanor occurred in the officer's presence; court stresses statute does not so state).
Commonwealth v. Fields, 194 S.W.3d 255 (Ky.2006) (following Mobley, infra, misdemeanor arrest here lawful, as "officer reached a reasonable conclusion that Fields was committing a trespassing violation in his presence");Commonwealth v. Mobley, 160 S.W.3d 783 (Ky.2005) (overruling Mash, infra, court holds arrest for possessing drug paraphernalia could be upheld because there probable cause of such present possession, as crack pipe found on floorboard of vehicle in which defendant and two others seated, allowing officer to “reasonably infer” possession by defendant solely or jointly); State v. Pulfrey, 154 Wash.2d 517, 111 P.3d 1162 (2005) (“police officer may arrest a person for a misdemeanor committed in his presence when the officer has probable cause to do so”).

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Leading the attack was William Pitt, whose eloquent remarks will never cease to be quoted: - can you quote them?

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The poorest man may, in his cottage, bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.

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what is the focus of LaFave's treatise

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the focus of this Treatise is instead upon the contemporary meaning of the Fourth Amendment.

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what did P Steiker say about 4th a and originalism?

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almost no one … believes that we should be bound for all time by the specific intentions or expectations of the Framers about, say, precisely what kinds of searches are “reasonable” ones or precisely what sorts of remedies are required for violations of the Fourth Amendment. At some point, all but the most absolutist originalists formulate notions of the Framers' intent at some higher level of abstraction, a move that necessarily renders less significant even highly persuasive historical claims about the more specific intentions. Moreover, the Fourth Amendment, more than many other parts of the Constitution, appears to require a fairly high level of abstraction of purpose; its use of the term “reasonable” (actually, “unreasonable”) positively invites constructions that change with changing circumstances.

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with respect to reasonbleness or unreasonableness in the 4th a what does LaFave say about originalism?

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focus on colonial history to support a disjunctive reading of the “reasonableness” clause and the Warrant Clause and to attack the exclusionary rule seems short-sighted.

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what are two crucial changes between colonial times and the present that must inform our current readings of the Fourth Amendment as a whole.

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(1) at the time of the drafting and ratifying of the Fourth Amendment, nothing even remotely resembling modern law enforcement existed. (2) the intensification of inter-racial conflict in our society , and the myriad ways in which this conflict has intersected with law enforcement, likewise necessitate new constructions of the Fourth Amendment

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what is history of 4th a originalism?

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[T]he new Fourth Amendment originalism really is new. It departs dramatically from the largely ahistorical approach the Court has taken to the Fourth Amendment for most of the past thirty years, and it differs significantly from the use of history in earlier search-and-seizure opinions, stretching back to the nineteenth century.

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what was first search and seizure case

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1886, came Boyd v. United States,later characterized by the Court as “the leading case on the subject of search and seizure.”

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what were the three issues in Boyd?

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(i) whether the forced production of papers was a search within the meaning of the Fourth Amendment; (ii) whether the protections of the Fourth Amendment extended to forfeiture proceedings; (iii) whether competent but illegally obtained evidence must be excluded.

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what creative idea did is Justice Bradley advance in Boyd?

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linked together the Fourth and Fifth Amendments

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How did Justice Bradley link 4th and 5th a in Boyd?

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They throw great light on each other. For the “unreasonable searches and seizures” condemned in the fourth amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the fifth amendment; and compelling a man “in a criminal case to be a witness against himself,” which is condemned in the fifth amendment, throws light on the question as to what is an “unreasonable search and seizure” within the meaning of the fourth amendment.

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what did weeks 1914 stand for - inter alia

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The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures … should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.

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How did Frankfurter answer this question in Wolf? “Does a conviction by a State court for a State offense deny the ‘due process of law’ required by the Fourteenth Amendment, solely because evidence that was admitted at the trial was obtained under circumstances which would have rendered it inadmissible in a prosecution for violation of a federal law in a court of the United States because there deemed to be an infraction of the Fourth Amendment as applied in Weeks v. United States …?”

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The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in “the concept of ordered liberty” and as such enforceable against the States through the Due Process Clause. …

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describe Rochin

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Shocks the conscience to get the capsules out of the defendant's stomach

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describe Irvine v. California

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repeated intrusions to relocate a microphone to listen did not invoke exclusion

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how does Breithaupt v. Abram relate to Rochin

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Rochin not controlling because no damage or injury to person whose blood was drawn under watchful eye of physician

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what was the result in Elkins

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demise of the silver platter doctrine
by admitting the unlawfully seized evidence the federal court serves to defeat the state's effort to assure obedience to the Federal Constitution.

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what was Rutledge's primary dissent in Wolf

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4th Amendment without the sanction (exclusion) is a dead letter

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Why did Mapp over rule Wolf?

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Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government.

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How did Black link 4th and 5th a in Mapp - and to what end

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when the Fourth Amendment's ban against unreasonable searches and seizures is considered together with the Fifth Amendment's ban against compelled self-incrimination, a constitutional basis emerges which not only justifies but actually requires the exclusionary rule

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what are the purposes of exclusionary rule?

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(1) deterrence (2) that the courts not become “accomplices in the willful disobedience of a Constitution they are sworn to uphold.” (3) assuring the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior

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How does Weeks refer to exclusionary rule? A remedy or Deterrent?

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contains no language that expressly justifies the rule by reference to a supposed deterrent effect on police officials
nowhere in Weeks is the exclusionary rule called a ‘remedy’

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What did J Clark say in Mapp about the exclusionary rule?

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no man is to be convicted on unconstitutional evidence

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what did Senator Robert F. Wagner have to say about the exclusionary rule

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The exclusion of the evidence is only the sanction which makes the rule effective. It is the rule, not the sanction, which imposes limits on the operation of the police. If the rule is obeyed as it should be, and as we declare it should be, there will be no illegally obtained evidence to be excluded by the operation of the sanction.