What are the requirements before an individual may be stopped and patted down under the Terry case? ?How does a Terry stop and

THE FOURTH AMENDMENT PART I

Constitutional Law

Introduction

 Limited government power is necessary for the laws of the country to be enforced and the government’s business to be carried out.

 A balance is required for democracy.

 Terms fundamental to understanding the 4th Amendment.  Search

 Seizure

The Importance of the 4th Amendment to Law Enforcement

 The 4th Amendment’s prohibition against unreasonable searches and seizures by the police is perhaps the most vital component of criminal procedure.

 It has given ample opportunities to the U.S. Supreme Court to set forth when any government agent may or may not act, as well as when they have an expectation, or duty, to do so.

Wolf v. Colorado , 338 U.S. 25 (1949)

 Facts: Julius Wolf was convicted of conspiracy to perform criminal abortions. He argued that evidence obtained in violation of his 4th Amendments rights should not be used against him in trial. The Supreme Court of Colorado upheld his conviction, and the use of the evidence.

 Issue: Were the states required to exclude illegally seized evidence from trial under the Fourth and Fourteenth Amendments?

 Holding: Yes and no. The Court held that even though the Fourth Amendment is applicable to the states, the exclusionary rule is not necessarily a component of that application.

 Rationale: Any government agent (federal, state or local) is regulated by the 4th Amendment by way of the 14th. But the Court reasoned that while the exclusion of evidence may have been an effective way to deter unreasonable searches, other methods could be equally effective.

Who is Governed by the 4th Amendment?

 Private individuals or agencies are not regulated by the 4th

Amendment.

 Why?  The Constitution was established to limit the power of government and its agents.

United States v. Parker , 32 F.3d 395 (8th Cir. 1994)

 Facts: UPS opened a duffel bag insured for $4000, consistent with company policy, and found $4000 in cash, then alerted the DEA, which found drugs. UPS delivered the duffel under DEA operation and Parker was arrested at the address.

 Issues: Did UPS violate the 4th Amendment?

 Holding: No.

 Rationale: UPS had no duty to secure a warrant as it was not a state actor.

THE FOURTH AMENDMENT PART II

Constitutional Law

Illinois v. Gates , 462 U.S. 213 (1983)

 Facts: The police received an anonymous letter outlining specific details about the Defendants being involved in drug trafficking, later corroborated by their actions.

 Issues: Is the letter enough for probable cause?

 Holding: Yes.

 Rationale: Totality of the circumstances.  Made the establishment of probable cause by use of informants easier for police.

 Whether a reasonable and prudent person would believe that PC exists

 “Probable cause is a fluid concept-turning on the assessment of probabilities in a particular factual context-not readily, or even usefully reduced to a neat set of legal rules.”

Search and Arrest Warrants

 Government agents that have probable cause must go before a magistrate (judge) and swear under oath about who and what they are looking for and where they think it can be found.

 In determining whether probable cause for a warrant exists, the judge must consider the totality of the circumstances.

 Whether a reasonable person would believe what the officers claim.

 Not every judge will sign a warrant.

 The officer may be told to come back with additional information.

 Judges today will grant telephone warrants.

Knock and Announce Rule

Knock and Announce Rule  The general rule is that officers must first knock and announce their authority before breaking into a dwelling to execute a warrant.

 The intent is to prevent the occupant from responding with force against unknown intruders.

United States v. Banks , 540 U.S. 31 (2003)

 Facts: Police went to Banks's apartment to execute a warrant to search for cocaine, they called out "police search warrant" and rapped on the front door hard enough to be heard by officers at the back door, waited for 15 to 20 seconds with no response, and then broke open the door.

 Issues: Is 15 to 20 seconds long enough for police to wait after knocking and announcing?

 Holding: Yes.

 Rationale: Analysis may rely on time it takes for destruction of evidence, not time to answer door. It is not unreasonable to think that someone could get in a position to destroy the drugs within 15 to 20 seconds. Reasonableness is under totality of circumstances standard.

 Some departments make this a policy matter.

 No-knock exceptions made: when knocking under the particular circumstances would be dangerous or futile, or that it would inhibit the effective investigation of the crime by allowing destruction of evidence

The Law of Stop and Frisk

 Stop- a brief detention of a person based on specific and articulable facts for the purpose of investigating suspicious activity.  No Miranda warning is required.

 Articulable facts- actions described in clear, distinct statements.

 Frisk- a reasonable, limited pat down search for weapons for the protection of a government agent and others.

 Controversy

Terry v. Ohio , 392 U.S. 1 (1968)

 Facts: Terry and two other men were observed by a plain clothes policeman in what the officer believed to be "casing a job, a stick-up." The officer stopped and frisked the three men, and found weapons on two of them.

 Issues: Was the search and seizure of Terry and the other men in violation of the Fourth Amendment?

 Holding: No.

 Rationale: The Court found that the officer acted on more than a "hunch" and that "a reasonably prudent man would have been warranted in believing [Terry] was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior."

Consequences of 4th Amendment Violations

An unlawful search or seizure can have two serious consequences: 1. The evidence may be excluded from court.

2. Internal sanctions as well as civil and criminal liability may be incurred.

The Exclusionary Rule

 Is judge-made case law promulgated by the Supreme Court to prevent police or government misconduct. Ends do not justify the means.

 It prevents evidence seized in violation of a person’s constitutional rights from being admitted into court.  An officer who has violated someone’s rights may sued, or

 prosecuted criminally.

 The exclusionary rule is by far the most frequently used means to address constitutional infractions by the government in criminal cases.

The Exclusionary Rule

 The exclusionary rule also helps:  Preserve judicial integrity by preventing judicial agreement in denying a person’s 4th Amendment rights.

 Deters police misconduct by making improperly obtained evidence inadmissible in court .

 Protects citizen’s constitutional right to privacy.

 Rochin v. California (1952)  Searches that “shock the conscience” are a violation of due process, and any evidence so obtained, will be inadmissible. Excluded because of due process violation, not exclusionary rule, but standard cited.

Weeks v. United States , 232 U.S. 383 (1914)

 Facts: Weeks was arrested by a police officer at the Union Station in Kansas City, Missouri where he was employed by an express company. Other officers entered the house of the defendant without a search warrant and took possession of papers and articles which were afterwards turned over to the U.S. marshal.

 Issues: Was the evidence admissible?

 Holding: No.

 Rationale: Illegally obtained evidence is not admissible in court and the right to be free from unreasonable searches and seizures under the 4th Amendment applies to all invasions on the part of the government and its employees. Applicable to federal government.

Mapp v. Ohio , 367 U.S. 643 (1961)

 Facts: Police officers received information that a suspect in a bombing case, as well as some illegal betting equipment, might be found in the home of Mapp, who refused to admit them without a search warrant. Three hours later, brandishing a piece of paper, they broke in the door but did not find the bombing suspect nor the gambling equipment. They did find pornographic material and she was found guilty for possession of pornographic material.

 Issues: Does the exclusionary rule apply to the states?

 Holding: Yes.

 Rationale: If the rule didn’t apply to the states, the 4th amendment protections would be meaningless.

Exceptions to the Exclusionary Rule

The exclusionary rule applies only in criminal trials in which a constitutional right has been violated.

There are four exceptions to the exclusionary rule: 1. Inevitable discovery doctrine

2. Valid independent source

3. Harmless error

4. Good faith

Internal Sanctions, Civil Liability and Criminal Liability

Government misconduct could result in: Departmental discipline against the officer.

Civil lawsuits.

Criminal charges.

3/8/2017 Terry v. Ohio | Oyez

https://www.oyez.org/cases/1967/67 1/2

P E T I T I O N E R

Terry

R E S P O N D E N T

Ohio

L O C A T I O N

Street Corner

D O C K E T N O .

67

D E C I D E D B Y

Warren Court (1967-1969)

C I T A T I O N

392 US 1 (1968)

(https://supreme.justia.com/cases/federal/us/392/1)

A R G U E D

Dec 12, 1967

D E C I D E D

Jun 10, 1968

(/)

Terry v. Ohio

Facts of the case Terry and two other men were observed by a plain clothes policeman in what the o埒�cer believed to be "casing a job, a stick-up." The o埒�cer stopped and frisked the three men, and found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail.

3/8/2017 Terry v. Ohio | Oyez

https://www.oyez.org/cases/1967/67 2/2

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Cite this page

"Terry v. Ohio." Oyez, https://www.oyez.org/cases/1967/67. Accessed 8 Mar. 2017.

Question Was the search and seizure of Terry and the other men in violation of the Fourth Amendment?

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Conclusion

In an 8-to-1 decision, the Court held that the search undertaken by the o埒�cer was reasonable under the Fourth Amendment and that the weapons seized could be introduced into evidence against Terry. Attempting to focus narrowly on the facts of this particular case, the Court found that the o埒�cer acted on more than a "hunch" and that "a reasonably prudent man would have been warranted in believing [Terry] was armed and thus presented a threat to the o埒�cer's safety while he was investigating his suspicious behavior." The Court found that the searches undertaken were limited in scope and designed to protect the o埒�cer's safety incident to the investigation.

8 – 1 D E C I S I O N

M A J O R I T Y O P I N I O N B Y E A R L W A R R E N

Earl Warren

Hugo L. Black

William O. Douglas

John M. Harlan II

William J. Brennan, Jr.

Potter Stewart

Byron R. White

Abe Fortas

Thurgood Marshall