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Answer the questions with a minimum of 300 words. Must use ALL provided material (PDF book), along with TWO additional sources to answer questions. Please use in-text citations at the beginning of EACH new paragraph to support your facts. Reference/cite in APA format: Hall, D. (2015). Criminal law and procedure (7th ed.). Stamford, CT: Cengage Learning.1.) Should the exclusionary rule (used for evidence) also be applied to illegal arrests? Discuss the standards used by the court in U.S. v.Toscanino (p. 459).2.) A police officer is approached by a man on the street who tells the officer that he was just robbed. The man points out the robber, who is standing in a park just across the street. Must the officer obtain a warrant to make the arrest? 3.) A police officer is approached by a man on the street who tells the officer that he was just robbed. Although he did not see where the robber fled, he knew the assailant’s name and address, as the two men “grew up together.” The officer and the victim went to the police station and completed an incident report. After a telephone call to one of suspect’s neighbors, they learned that he was at home. Must the officer obtain a warrant to make the arrest?4.) What is a protective sweep?edit
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Chapter 12: Searches, ­Seizures, and Arrests   447
In 2006, this decision was extended to parolees in Samson v. California,78 where
the Supreme Court held that the Fourth Amendment does not prohibit suspicionless, warrantless searches of parolees. On the continuum of punishment, the Court
noted, a parolee enjoys less privacy than probationers and only slightly more than
prisoners. Significant to the Court in Samson was the consent of the parolees, who
were given the option of remaining in prison; the large number of parolees at large;
the interest of the state in monitoring parolees for reintegration; and recidivism. The
Court pointed to the likelihood of recidivism, as opposed to the general population,
in its Knights opinion as further support for the decision to subject probationers to
greater oversight.
L
Although outside the content of this text, beI aware that so-called administrative
searches often require less than probable cause and
D a warrant to be conducted. This is
largely because the purpose of such searches is not to detect and punish criminals. InD
stead, it is to protect the public from health and welfare threats, the violation of which
are typically punished with fines, the discipliningEof a license, or a similar noncriminal
sanction. For example, warrantless inspections of
L restaurants, groceries, other highly
regulated industries, public school students, and the work areas of public employees
L even though probable cause is not
must be reasonable under the Fourth Amendment,
required for any of them.
,
Administrative Searches
In most instances, the Fourth Amendment’s reasonableness requirement is satisfied
in the administrative context if there is either (1) reasonable suspicion or (2) a comprehensive regulatory scheme in place. If the latter, T
the scheme shall define the authority
79
of inspectors, define the inspection itself, and provide
I a rationale for the inspection.
F
F
Arrest
A liberty is to be physically seized
One of the most serious interferences with a person’s
by a government. Equally, arrest plays an important
N role in effective law enforcement.
Because of the significant impact arrest has on a person’s life, the right to arrest is
Y
limited by the Fourth Amendment.
Defining Arrest
1
Generally, an arrest is a deprivation of freedom by5a legal authority. As you have already
learned, seizures by the police take two primary forms. First, at the lower end of the
6
spectrum is the Terry v. Ohio seizure. Such seizures occur whenever a person reasonably
8
believes that he or she is not free to leave. In addition,
the seizure must be as brief as
possible and be of limited intrusion to the person
detained.
The Court addressed the
T
question whether passengers of vehicles are seized during traffic stops in the 2007 case
S
Brendlin v. California.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
448   Part II Criminal Procedure
BRENDLIN V. CALIFORNIA
551 U.S. 249 (2007)
Justice Souter delivered the opinion of the Court.
When a police officer makes a traffic stop, the
driver of the car is seized within the meaning of
the Fourth Amendment. The question in this case is
whether the same is true of a passenger. We hold
that a passenger is seized as well and so may challenge the constitutionality of the stop.
L
I
Early in the morning of November 27, 2001, Deputy
D
Sheriff Robert Brokenbrough and his partner saw a
D
parked Buick with expired registration tags. In his
E
ensuing conversation with the police dispatcher,
Brokenbrough learned that an application forLrenewal of registration was being processed. The ofL
ficers saw the car again on the road, and this time
Brokenbrough noticed its display of a temporary
,
I
operating permit with the number “11,” indicating
it was legal to drive the car through November.
T
The officers decided to pull the Buick over to verify
that the permit matched the vehicle, even though,
I
as Brokenbrough admitted later, there was nothing
F
unusual about the permit or the way it was affixed.
Brokenbrough asked the driver, Karen Simeroth,
Ffor
her license and saw a passenger in the front seat,
A
petitioner Bruce Brendlin, whom he recognized
as “one of the Brendlin brothers.” He recalled N
that
either Scott or Bruce Brendlin had dropped out
Y of
parole supervision and asked Brendlin to identify
himself (footnote omitted). Brokenbrough returned
to his cruiser, called for backup, and verified 1
that
Brendlin was a parole violator with an outstanding
5
no-bail warrant for his arrest. While he was in the
6
patrol car, Brokenbrough saw Brendlin briefly open
and then close the passenger door of the Buick.
8
Once reinforcements arrived, Brokenbrough went
T
to the passenger side of the Buick, ordered him
out of the car at gunpoint, and declared him under
S
arrest. When the police searched Brendlin incident
to arrest, they found an orange syringe cap on his
person. A patdown search of Simeroth revealed syringes and a plastic bag of a green leafy substance,
and she was also formally arrested. Officers then
searched the car and found tubing, a scale, and
other things used to produce methamphetamine.
Brendlin was charged with possession and
manufacture of methamphetamine, and he moved
to suppress the evidence obtained in the searches
of his person and the car as fruits of an unconstitutional seizure, arguing that the officers lacked
probable cause or reasonable suspicion to make
the traffic stop. He did not assert that his Fourth
Amendment rights were violated by the search of
Simeroth’s vehicle, but claimed only that the traffic stop was an unlawful seizure of his person. The
trial court denied the suppression motion after finding that the stop was lawful and Brendlin was not
seized until Brokenbrough ordered him out of the
car and formally arrested him. Brendlin pleaded
guilty, subject to appeal on the suppression issue,
and was sentenced to four years in prison.
The California Court of Appeal reversed . . . By
a narrow majority, the Supreme Court of California
reversed. . . .
A person is seized by the police and thus entitled to challenge the government’s action under
the Fourth Amendment when the officer, “ ‘by
means of physical force or show of authority,’ ”
terminates or restrains his freedom of movement.
Thus, an “unintended person . . . [may be] the object of the detention,” so long as the detention is
“willful” and not merely the consequence of “an
unknowing act.” A police officer may make a seizure by a show of authority and without the use
of physical force, but there is no seizure without
actual submission; otherwise, there is at most an
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 12: Searches, ­Seizures, and Arrests   449
BRENDLIN V. CALIFORNIA
(c o nti nu e d)
attempted seizure, so far as the Fourth Amendment is concerned.
When the actions of the police do not show an
unambiguous intent to restrain or when an individual’s submission to a show of governmental authority takes the form of passive acquiescence, there
needs to be some test for telling when a seizure occurs in response to authority, and when it does not.
The law is settled that in Fourth AmendmentLterms
a traffic stop entails a seizure of the driverI “even
though the purpose of the stop is limited and the
D
resulting detention quite brief.” And although we
Dqueshave not, until today, squarely answered the
tion whether a passenger is also seized, we
E have
said over and over in dicta that during a traffic stop
an officer seizes everyone in the vehicle, not L
just the
driver. . . . The State concedes that the police
L had
no adequate justification to pull the car over, but
,
argues that the passenger was not seized and thus
cannot claim that the evidence was tainted by an
unconstitutional stop. We resolve this question
T by
asking whether a reasonable person in Brendlin’s
I
position when the car stopped would have believed
himself free to “terminate the encounter” between
F
the police and himself. We think that in these cirF
cumstances any reasonable passenger would have
A conunderstood the police officers to be exercising
trol to the point that no one in the car wasN
free to
depart without police permission.
Y a
A traffic stop necessarily curtails the travel
passenger has chosen just as much as it halts the
driver, diverting both from the stream of traffic to
1
the side of the road, and the police activity that
5 and
normally amounts to intrusion on “privacy
personal security” does not normally (and 6
did not
here) distinguish between passenger and driver. An
8 over
officer who orders one particular car to pull
acts with an implicit claim of right based on T
fault of
some sort, and a sensible person would not expect
S
a police officer to allow people to come and go
freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely
wrongdoing is not the driving, the passenger will
reasonably feel subject to suspicion owing to close
association; but even when the wrongdoing is only
bad driving, the passenger will expect to be subject
to some scrutiny, and his attempt to leave the scene
would be so obviously likely to prompt an objection
from the officer that no passenger would feel free to
leave in the first place.
It is also reasonable for passengers to expect
that a police officer at the scene of a crime, arrest,
or investigation will not let people move around in
ways that could jeopardize his safety. In Maryland
v. Wilson, 519 U.S. 408 (1997), we held that during a
lawful traffic stop an officer may order a passenger
out of the car as a precautionary measure, without
reasonable suspicion that the passenger poses a
safety risk. In fashioning this rule, we invoked our
earlier statement that “ ‘[t]he risk of harm to both
the police and the occupants is minimized if the officers routinely exercise unquestioned command of
the situation.’ ” What we have said in these opinions
probably reflects a societal expectation of “‘unquestioned [police] command’ ” at odds with any
notion that a passenger would feel free to leave, or
to terminate the personal encounter any other way,
without advance permission. . . .
Brendlin was seized from the moment Simeroth’s car came to a halt on the side of the road,
and it was error to deny his suppression motion on
the ground that seizure occurred only at the formal
arrest. It will be for the state courts to consider in
the first instance whether suppression turns on any
other issue. The judgment of the Supreme Court
of California is vacated, and the case is remanded
for further proceedings not inconsistent with this
opinion.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.

450   Part II Criminal Procedure
Any seizure that extends beyond the Terry standard is an arrest. A Terry investigatory
detention may be transformed into an arrest if the person is detained for an unreasonable length of time or the police use intrusive investigatory tactics. Whether an officer
intends to arrest is not dispositive, nor is an announcement to the citizen that he or she
is or is not under arrest. The totality of the facts will determine whether the intrusion
amounts to an arrest under the Fourth Amendment.
The requirements for a Terry stop were discussed previously in this chapter. The
following is a discussion of the Fourth Amendment requirements for arrest.
The Warrant Preference
L pursuant to a valid warrant, unless an exception to the warSearches must be conducted
rant requirement can Ibe shown. Arrests are quite different. Rather than a requirement
for a warrant, in most instances, there is simply a preference for one. The “informed
D
and deliberate determinations
of magistrates empowered to issue warrants . . . are to be
preferred over the hurried
action
of officers.”80 As is the case with warrantless searches,
D
probable cause determinations by magistrates will be supported on appeal with less
E by police officers.
evidence than those made
NotwithstandingLthe preference, most arrests are made without first obtaining a
warrant. The authority
Lto make warrantless arrests has a long history. Under the common law, a law officer could arrest whenever he had reasonable grounds to believe that
, a felony. Misdemeanants who breached the peace could be
a defendant committed
­arrested without warrant if the crime was committed in the presence of an officer.
United States v. Watson, 423 U.S. 411 (1976), was the case in which the Supreme
Court recognized thatTwarrantless arrests in public places, based upon probable cause,
I Amendment. There is no constitutional requirement that
did not violate the Fourth
an officer obtain a warrant
F to effect an arrest in a public place—even if the officer
has adequate time to get the warrant prior to making the arrest. However, the Fourth
F that probable cause exist before an arrest can be made.
Amendment does require
For a warrantless arrest
A in a public place to be upheld, it must be shown that the officer who made the arrest (1) had probable cause to believe that a crime was committed,
and (2) that the personN
arrested committed that crime. As with searches and seizures, probY in a number of ways: statements from victims and witnesses,
able cause can be established
personal knowledge and observations of the officer, reliable hearsay, and informant tips.
Most, if not all, states permit officers to arrest without a warrant if there is probable
1 suspect committed a felony. States vary in their treatment of
cause to believe that the
misdemeanors, but most
5 permit warrantless arrest only for a misdemeanor committed
in an officer’s presence. Some states have a broader rule that permits the arrest of a misdemeanant, even if the6crime was not committed in the presence of an officer, provided
there is both probable8cause and an exigent circumstance.
An officer’s determination
of probable cause may later be attacked by the defenT
dant. If the officer was wrong, then the defendant may be successful in obtaining his or
S any evidence that is the fruit of the illegal arrest.
her freedom or suppressing
When an officer does seek an arrest warrant, the requirements previously discussed
concerning search warrants apply. That is, the warrant must be issued by a neutral and
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 12: Searches, ­Seizures, and Arrests   451
detached magistrate upon a finding of probable cause, supported by oath or affirmation. See Exhibit 12–5 for the formal federal arrest warrant.
Arrests in Protected Areas
So far the discussion of arrests has been confined to arrests made in public. If the arrest
is to be made in an area protected by the Fourth Amendment, such as a person’s home,
a warrant must be obtained, unless an exception exists.
Exhibit 12–5 WARRANT FOR ARREST
L
I
AO 442 (Rev. 5/85) Warrant for Arrest
D
UNITED STATES DISTRICT COURT
D
DISTRICT OF
E
UNITED STATES OF AMERICA
L
V.
L
WARRANT FOR ARREST
,
CASE NUMBER:
To: The United States Marshal
and any Authorized United States Officer T
YOU ARE HEREBY COMMANDED to arrest  I
    Name
F
F
■ Indictment ■ Information ■ Complaint ■ Order of Court ■ Violation Notice
A
■ Probation Violation Petition
N
charging him or her with (brief description of offense)
Y
and bring him or her forthwith to the nearest magistrate to answer a(n)
in violation of Title        
United States Code, Section(s)        
1
5
Signature of Issuing Officer
Date and Location
6
8
(By) Deputy Clark
Bail fixed at $
by T
S Name of Judicial Officer
Name of Issuing Officer
Title of Issuing Officer
(continued)
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
452   Part II Criminal Procedure
Exhibit 12–5 (continued)
RETURN
This warrant was received and executed with the arrest of the
above-named defendant at 
DATE RECEIVED
NAME AND TITLE OF
ARRESTING OFFICER
SIGNATURE OF
ARRESTING OFFICER
DATE OF ARREST
THE FOLLOWING IS FURNISHED FOR INFORMATION ONLY:
L
I
ALIAS: 
D
LAST KNOWN RESIDENCE: 
D
LAST KNOWN EMPLOYMENT: 
E
PLACE OF BIRTH: 
L
DATE OF BIRTH: 
L
SOCIAL SECURITY NUMBER: 
,
HEIGHT:
WEIGHT: 
SEX:
RACE: 
T
HAIR:
EYES: 
I
SCARS, TATTOOS, OTHER DISTINGUISHING MARKS: 
F


F
FBI NUMBER:            
A
COMPLETE DESCRIPTION
OF AUTO:
N

Y
INVESTIGATIVE AGENCY AND ADDRESS: 

1
5
Source: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO442.pdf
6
8
In Payton v. New York, 445 U.S. 573 (1980), it was held that a valid arrest warrant
implicitly carries withTit a limited right to enter the suspect’s home to effect the arrest,
provided there is reason
S to believe the suspect is within. Under Payton, the search must

be limited to areas where the suspect may be hiding. Because the entry is lawful, any
evidence discovered in plain view may be seized.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Copy right © 2015 Cengage Learning®.
DEFENDANT’S NAME: 
Chapter 12: Searches, ­Seizures, and Arrests   453
Arrest warrants do not authorize entry into the private property of third persons.
In the absence of consent or exigent circumstances, a search warrant must be obtained
before a search of a third person’s home or property may be conducted.81
The warrant requirement is obviated if the occupant gives consent to the search.
Exigent circumstances, such as hot pursuit, also justify warrantless entries into homes
to effect an arrest.
Misdemeanor Arrests
The authority of law enforcement officers to arrest in cases where probable cause exists
to believe an individual has committed a felony is clear. Similarly, the authority to arrest
L since the early common law. Howmisdemeanants who breach the peace has been clear
ever, whether the arrest authority extends to minor
I misdemeanors was not addressed by
the Supreme Court until 2001.
D
D
E
ATWATER V. CITY OF LAGO VISTA, ET AL.
L532 U.S. 318 (2001)
L
equipped with safety belts, a
and insurance documentation, which state law re,
In Texas, if a car is
front-seat passenger must wear one, Tex. Tran.
Code Ann. § 545.413(a) (1999), and the driver must
secure any small child riding in front. Violation
T of
either provision is ”a misdemeanor punishable by
I
a fine not less than $25 or more than $50.” Texas law
expressly authorizes “any peace officer [to]Farrest
without warrant a person found committing F
a violation” of these seatbelt laws, § 543.001, although it
A
permits police to issue citations in lieu of arrest.
In March 1997, Petitioner Gail Atwater was
N driving her pickup truck in Lago Vista, Texas, with her
Y
3-year-old son and 5-year-old daughter in the front
seat. None of them was wearing a seatbelt. Respondent Bart Turek, a Lago Vista police officer1at the
time, observed the seatbelt violations and pulled
5
Atwater over. According to Atwater’s complaint
(the allegations of which we assume to be true
6 for
present purposes), Turek approached the truck and
8
“yelled” something to the effect of “we’ve met beT for
fore” and “you’re going to jail.” He then called
backup and asked to see Atwater’s driver’s S
license
quired her to carry. When Atwater …
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