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Search Incident to an Arrest or a Stop: Has the United States Supreme Court Brought Clarity to a Problematic Area of the Court’s Jurisprudence?

By · May 22, 2013 · 2013 Ark. L. Notes 875
In categories: Criminal Law, Extended Article

This is a portion of the substantive law source to Carlton Bailey’s 7th Chapter for his upcoming book, Model Problems and Outstanding Answers – Criminal Procedure.

A. Search of the “Person”

The United States Supreme Court has held that a search-incident to a lawful arrest involves two types of warrantless searches – the arrestee’s “person” 1 and the area within his “immediate control.” 2 However, unlike the Court’s long stretch of constantly shifting 3 interpretations of the area within an arrestee’s “immediate control,” its opinions on the search of the arrestee’s “person” 4 has been relatively static for a century. Since its seminal opinion in Weeks v. United States 5 the Court has repeatedly affirmed the broadly stated rule that an arresting officer may automatically search an arrestee’s “person.” 6 Even so, the Court has had to concede that

“Virtually all of the statements of this Court affirming the existence of an unqualified authority to search incident to a lawful arrest are dicta.” 7

Still, the Court has specifically delineated the scope of the police authority to conduct a search of the “person” after a lawful arrest.

In United States v. Robinson 8 the citizen-defendant was lawfully arrested for operating an automobile after the revocation of his operator’s permit and for obtaining the permit by misrepresentation. 9 The arresting officer searched the arrestee’s “person” pursuant to prescribed police department instructions. 10 During that search of the arrestee’s “person” the arresting officer found a “crumpled up cigarette package” in the citizen’s left breast pocket. 11 Inside that cigarette package the arresting officer identified 14 gelatin capsules that was later tested to be heroin. 12 The citizen-defendant was charged, tried and convicted of this narcotic offense. 13

On appeal to the United States Supreme Court, the Court determined that the justification or reason for the police authority to conduct a search of the arrestee’s “person” after a lawful arrest “rests quite as much on the need to disarm the suspect, in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.” 14

The Court emphasized that disarming an arrestee is critically important because the officer is in “far greater” danger due to his “extended exposure that follows his taking the suspect into custody and then transporting him to jail. 15

Second, the Court concluded that a custodial arrest based on probable cause is a reasonable intrusion under the Fourth Amendment. 16 And since the arrest was lawful, a search of the “person” incident to that lawful arrest requires no additional justification

“It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” 17

Consequently, the Court opined that a full search of the “person” is always reasonable as an incident to a lawful custodial arrest. Moreover, the Court has held that this reasonable search of the “person” was not dependent on the existence of police department “policy establishing the conditions under which a full-scale body search should be conducted.” 18

B. Search of the area within the suspect’s “immediate control” or the “area where he was arrested”

As early as 1925 the Court recognized the “right” of an arresting officer to search the person of the arrestee and the area in his control 19 (or the “place where the arrest was made”) at the time of that arrest.

“The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to seize things connected with the crime as its fruits …, is not to be doubted.” 20

Although the Court explicitly recognized that an arresting officer had the “right” to search (without a warrant) an arrestee’s “person” and the area in his immediate control it had difficulty defining the scope of that area in his control. Initially the Court held that the police may not conduct a warrantless search of an arrestee’s home (as incident to an arrest) merely because he was lawfully arrested several blocks away in a third-party’s home. 21 Hence, a warrantless search of an arrestee’s house is not “incident” to (“or contemporaneous” with) 22 his lawful arrest, blocks away, in the home of a third-party. However, even when the lawful arrest and the search-incident to that arrest occurred in the same place, the Court still struggled to define the scope of a lawful search-incident.

From 1927 to 1964, the Court vacillated on whether it was constitutional for the police to conduct a warrantless search in the place where the arrest occurred. In 1927, the Court held that such a warrantless search was lawful. 23

However, in 1931 24 and 1932 25 the Court reversed course and held that such searches were unlawful. Again, in 1947 the Court upheld such a warrantless search. 26 Then, in 1948 27 the Court changed course and found such a search unlawful. Two years later, the Court held such a warrantless search unlawful. 28

The Court concluded in Chimel v. California 29 that a more precise method of analysis was required in this area of search incident to a lawful arrest. In Chimel three police officers arrived at the defendant’s home with a warrant for his arrest. 30 The arrest warrant alleged that the defendant had burglarized a coin shop. 31 When the police handed the arrest warrant to the defendant they asked him for permission to “look around.” 32 Although the defendant objected to this warrantless search he was told that “on the basis of the lawful arrest” 33 the officers would conduct a search of the house. Accordingly, the officers conducted a warrantless search of the
entire three bedroom house. 34 This warrantless search uncovered incriminating evidence against the defendant. The incriminating evidence was admitted at the defendant’s trial. 35 The defendant was convicted and he appealed.

The United States Supreme Court reversed. 36 The Court held that it is reasonable for an arresting officer to search the “person of an arrestee “in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape,” 37 or to prevent him concealing or destroying evidence. Similarly, concluded the Court, the “area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.” 38 The Court defined the area “within his immediate control” to mean “the area from which he might gain possession of a weapon or destructible evidence.” 39
So, according to Chimel the “facts and circumstances” of each case must be considered in order to determine whether “there is ample justification for a search of the … area ‘within his (arrestee’s) immediate control.'” 40 The Court opined that there could be “no comparable justification … for routinely searching any room other than that in which an arrest occurs.” 41 Moreover, the Court found no justification for searching through all the desk drawers or other closed or concealed areas in the room where the arrest is made. 42 Unless, such a search was made pursuant to a warrant or a recognized exception to a warrant. 43

C. Search of a suspect’s car – Incident to an arrest (a recognized warrant exception)

After its decision in Chimel, the Court acknowledged that though “the principle that limits a search-incident to a lawful arrest maybe stated clearly enough,” 44 it was not universally applicable. For example, despite this clarity the Court noted that lower courts had had difficulty 45 applying this “straightforward rule” to the “narrow class of cases” 46 concerning whether in the course of a search-incident to a lawful custodial arrest of occupants of an automobile the police may search the interior of that automobile if the arrestees are no longer inside. 47 The Court considered this lack of clarity unacceptable because it prevented a citizen from knowing the “scope of his constitutional protection” and it prevented the policeman from knowing the “scope of his authority.” 48 The Court sought to resolve this “problem” in New York v. Belton. 49

In Belton a New York State policeman, driving an unmarked car on a New York highway, was passed by another automobile “traveling at an excessive rate of speed.” 50 The policeman “gave chase and overtook the speeding vehicle.” 51 After ordering the “driver to pull over to the side of the road and stop,” the officer discovered that there were found (4) men in the car (including the defendant, Roger Belton). 52 Neither one of the four men had a driver’s license, insurance, or owned the automobile. 53 While the policeman was requesting this information he smelled burnt marijuana and he saw on the floor of the car an envelope marked “Supergold” that he associated with marijuana. 54 As a result of these two observations the policeman ordered the four men out of the car, and placed them under arrest for the unlawful possession of marijuana. 55 At this point he conducted a “pat down” of each man, and then “split them up into four separate areas” 56 on the roadway. The policeman “picked up the envelope marked ‘Supergold’ and found that it contained marijuana.” 57 Then, the officer searched each man after giving them the familiar warnings required by Miranda v. Arizona. 58 During his subsequent search of the passenger compartment of the car he found a black leather jacket owned by citizen-Belton. He unzipped the pockets of the jacket and found cocaine. 59

Citizen-Belton was indicted for criminal possession of a controlled substance. 60 Citizen-Belton (petitioner) moved the trial court for an order to suppress the cocaine found in his jacket pocket. 61 The trial court denied his motion. The petitioner plead guilty, but preserved his right to challenge the search of his jacket on appeal. 62

The United States Supreme Court reversed. 63

The Belton Court announced that its reading of the cases suggested that

“[t]he generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary [item].'” 64

Therefore, considering this generalization the Court held that

“When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 65

Based on its holding and the reasons supporting it the Belton Court concluded that the police may also examine the contents of a container 66 found in the passenger compartment of that car during the search-incident to this lawful arrest. That is, the search of a container found in the passenger compartment was lawful whether the container was open or closed. 67 Curiously, the Belton Court read United States v. Robinson 68 to permit the arresting police officers to search a closed container even if it could not hold a weapon nor evidence of criminal conduct. 69 Belton‘s interpretation of Robinson is unfortunate because it fails to recognize that the search of the “person” incident to a lawful custodial arrest under Robinson follows a different genealogy than Chimel‘s search of the area under the arrestee’s immediate control. 70

Approximately 24 years after Belton the Court was requested to determine in Thornton v. United States 71 whether Belton was limited to a situation where the policeman “initiated contact” with the arrestee while the arrestee was still an occupant of the car. 72 On the whole, Thornton appears to reject any such limitation on Belton. 73

In Thornton a local police officer became suspicious of a driver who “slowed down so as to avoid driving next to him.” 74 When the suspicious driver passed him the officer ran a check on the car’s license tags. 75 The check revealed that the tags had been issued to a car other than the one the driver was driving. 76 Before the officer could stop the suspect-driver he pulled into a parking lot and got out of the car. 77 The officer accosted the suspect-driver outside his car, asked him for his driver’s license and told him the license tags did not match the car he was driving. 78 As the officer questioned the suspect-driver he noticed that the driver was nervous, sweating and gave a rambling response. 79 The officer then asked the suspect-driver if he could pat him down. The suspect-driver gave the officer permission to pat him down. 80 When the officer felt a bulge in the suspect’s left front pocket he (again) asked him if he had any illegal narcotics on him. 81 This time the suspect-driver admitted that he possessed illicit narcotics. The officer reached inside the suspect’s pocket and found marijuana and crack cocaine.

The officer handcuffed the arrestee, placed him the backseat of the patrol car, then searched the car 82 and found a gun. The arrestee was charged with, among other things, possession with intent to distribute cocaine base and felon in possession of a firearm. 83 The arrestee’s motion to suppress was denied 84 because the automobile search was deemed valid under New York v. Belton. 85

The Supreme Court (four 86 justices) held that

Belton allows the police to search the passenger compartment of a vehicle incident to a lawful arrest of both ‘occupants’ and ‘recent occupants.'” 87

The Court revisited Belton and Thornton in Arizona v. Gant. 88

In Gant, acting on an anonymous tip that a particular residence was being used to sell drugs Tucson police officers knocked on the front door and asked to speak to the owner. 89 Citizen-Gant answered the door and, after identifying himself, stated that he expected the owner to return later. 90 The officers left the residence and conducted a records check. The records check revealed that citizen-Gant’s driver’s license had been suspended and that there was an outstanding warrant for his arrest for driving with a suspended license. 91

When the police returned to the residence that evening they arrested a man and woman at that residence. The man was arrested for providing a false name and the woman was arrested for possessing drug paraphernalia. 92 Both arrestees were handcuffed and placed in a police car. At this point citizen-Gant drove into the driveway where he was immediately recognized by the police officers. Gant parked his car at the far end of the driveway, got out of his car, and shut the door. Gant walked toward the officers and they toward him. The officers met Gant about 12 feet away from his car and arrested him. Gant was handcuffed. The police called for “backup”and placed Gant in one of those police cars. 93

With all the arrestees in handcuffs and secured in police cars, the officers conducted a warrantless search of Gant’s car. 94 During the search of Gant’s car the police found a gun and a bag of cocaine in the pocket of a jacket on the back seat. 95 As a result of these discoveries, “Gant was charged with two offenses – possession of a narcotic drug for sale and possession of drug paraphernalia in (i.e., the plastic bag in which the cocaine was found).” 96

Gant moved to suppress these items seized from his car on the ground that the warrantless search violated the Fourth Amendment. 97 He argued that, among other things, Belton did not authorize the search of his car because he posed no threat to the officers after he was handcuffed and placed in a police car. 98 Moreover, Gant argued that since he was arrested for a traffic offense there could be no evidence of that offense in his car. 99 Indeed, one of the arresting officers appeared to support defendant’s claim that no evidence of the search could be found in his car. When one of the arresting officers was asked at the suppression hearing why the search was conducted, he answered: “Because the law says we can do it.” 100

Although the trial court rejected the State’s contention that the officers had probable cause to search the car, it denied defendant-Gant’s (defendant) motion because it found the officer’s action was a permissible search-incident to an arrest. 101 The defendant was found guilty of both charges.

The State of Arizona sought and received a review of its petition for certiorari. 102

The defendant respondent asked the United States Supreme Court to adopt the position taken by the Arizona Supreme Court. 103 The United States Supreme Court held that the search was unlawful under Belton.

“[When] the passenger compartment is within an arrestees’ reaching distance, Belton supplies the generalization that the entire compartment and any containers therein may be reached.” 104

The Gant Court acknowledged that the Belton opinion had been “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. 105 The Court rejected this “broad” reading of Belton.

“Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 106

Although Justice Scalia concurred 107 in Gant, he rejected the notion that Chimel applied to this setting for search-incident to a lawful arrest.

Nevertheless, the Gant Court also held that because of the circumstances “unique to the vehicle context” a warrantless search incident (of a car) to a lawful arrest is justified when it is “reasonable (for the police officer) to believe evidence relevant to the crime of arrest might be found in the vehicle.” 108 On the other hand, the Court has held that none of these rationales 109 supporting search incident to a lawful arrest apply to a search incident to a citation. 110

D. Search-incident to something less than a custodial arrest

The Fourth Amendment is implicated when the government conducts a search or seizure. 111 A search or seizure is presumptively reasonable if it was made pursuant to a warrant or a recognized exception to a warrant. 112 A search incident to a lawful custodial arrest is a recognized exception to the warrant requirement. 113 And, a search incident to a lawful custodial arrest allows the arresting officer to conduct a warrantless search of the arrestee’s “person” 114 and the “area within his immediate control.” 115 Moreover, the Court has held that the police may conduct a warrantless search of a “person” incident to a “seizure” other than a custodial arrest, and based on fewer facts than required to establish probable cause. 116 Hence in order to appreciate a search incident to a “seizure” that is less intrusive than a custodial arrest, and that is based on fewer facts than the probable cause requirement, an examination of Terry v. Ohio 117 is a necessary step in that analysis.

“Seizure” under the Fourth Amendment

The seminal case authorizing the government to conduct a search incident to a seizure, other than a custodial arrest, and on a less than probable cause basis is Terry v. Ohio. 118 In Terry a plain clothes police detective was on patrol in downtown Cleveland, Ohio. 119 From his testimony at the suppression hearing the detective stated that he became suspicious of two men (Chilton and Terry) walking up and down the street and peering into store windows. 120 Based on his 39 years of police experience the detective believed that the two men’s (later joined and then separated from a 3rd man) acts of walking up and down the street, periodically peering in store windows, and conferring with each other suggested that they were “casing a job, a stickup.” 121

Because he thought a robbery was about to take place the detective believed it was his duty to investigate further. 122 Based on his suspicion and concern the detective followed the two men until they stopped in front of a store. When the two were joined by a third man (with whom they had consulted earlier) the detective began to walk toward them. 123 As the detective approached the three he identified himself as a police officer and asked them for their names. 124 Since he did not know either man, when they “mumbled something” in response to his inquires, he grabbed suspect-Terry and “spun him around so that they (he and Terry) were facing the other two.” 125 Using suspect-Terry as a shield between himself and other two men the detective “patted down” the outside of suspect-Terry’s clothes. 126 In the left breast pocket of suspect-Terry’s overcoat the detective felt a pistol. 127 A subsequent search inside the store revealed that a second suspect, Chilton, also had a gun. 128 No weapons were found on the third man, Katz [Again, Katz escapes the law!].

At the suppression hearing the prosecutor argued that the guns were seized pursuant to a search incident to a lawful arrest. 129 Although the trial court rejected the prosecutor’s argument 130 it denied the defendant’s motion to suppress because the court considered the detective’s experience dispositive. That is, the officer

“[h]ad reasonable cause to believe … that the defendants were conducting themselves suspiciously, and some interrogation should be made of their action.” 131

The trial court held, that the officer had a right to pat down the outer clothing of these men who he had reasonable cause to believe might be armed. 132

The United States Supreme Court granted certiorari and affirmed the conviction. 133 However, the Court rejected the “notion” that the conduct of the police described as a “stop” and “frisk” was

“Outside the purview of the Fourth Amendment because neither action arises to the level of a ‘search’ or ‘seizure’ within the meaning of the Constitution. We emphatically reject this notion.” 134

According to the Terry Court it was “nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing … is not a search.” 135 Moreover, the Court deemed it “fantastic” to contend that placing a citizen with his hands raised while being groped by the police as a “petty indignity.” 136 The Court considered this “frisk” (“search”) a “serious intrusion upon the sanctity of the person … and it is not to be undertaken lightly.” 137

Under these facts, the Court opined that it could be no question that the detective seized citizen-Terry and subjected him to a “search” when he took hold of him and patted down the outer surfaces of his clothing. 138 Therefore, the Court had to decide whether it was reasonable for the detective to have interfered with citizen-Terry’s “personal security as he did.” 139

“And in determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one … whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which, justified the interference in the first place.” 140

The Court devised the following test for determining the reasonableness of police action under this “stop” and “frisk” rubric of police conduct. 141

“It is necessary ‘first to focus upon the governmental interests which allegedly justified official intrusion upon the constitutionally protected interests of the private citizen,’ for there is no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.” 142

In order to justify an intrusion on a citizen’s Fourth Amendment interests on a less than probable cause basis a policemen “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” 143 Moreover, would those facts known by the officer at the moment of the seizure or search “‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate.” 144 Although the Terry Court spoke of a “search” or a “seizure,” it clearly did not decide anything about the “constitutional propriety of an investigative ‘seizure’ upon less than probable cause.” 145

E. Terry’s progeny

Whether it is called a “search” or “seizure” pursuant to probable cause or a “stop” and “frisk” 146 based on something less than probable cause, the Terry Court recognized that the Fourth Amendment governs all intrusions by agents of the police upon [a citizen’s] personal security. 147 Therefore in order to assess the reasonableness of an officer’s invasion of a citizen’s personal security on a less than probable cause basis a court must consider three (3) factors. 148 First, a court must consider the governmental interest justifying the intrusion. That is, the police officer “must be able to point to specific and articulable facts which taken together with rational inferences (from those facts) reasonably warrant that intrusion.” 149

Second, a judge must balance that need to search or seize “against the invasion which the search [or seizure] entails.” 150 To complete this reasonableness assessment a court must third, evaluate all the facts against an objective 151 standard.

“[W]ould the facts available to the officer at the moment of the seizure or search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” 152

In other words, did the police officer observe unusual conduct which lead him to reasonably conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous. 153 The Court, in a companion 154 case to Terry identified the requirements for a “frisk.”

“The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” 155

Hence, concluded the Court, a “suspect’s mere act of talking with a member of known narcotics addicts over an eight-hour period” did not justify a reasonable belief by the police that they were in danger nor did it support probable cause to arrest. 156

Reasonable suspicion, the Court 157 has concluded, is “somewhat abstract.” 158 That is, the Court has “deliberately avoided reducing it (reasonable suspicion) to a ‘neat set of legal rules.'” 159 It is, however, clear that the Court adopts the “totality of the circumstances” principle as the governing principle for determining “the existence velnon of ‘reasonable suspicion.'” 160

The Court has held that a law enforcement agent may “stop” a citizen on facts that amount to less than probable cause to arrest if the officer can point to “specific and articulable facts, which, taken together with rational inferences from those facts,” would “warrant a man of reasonable caution in the belief” that a brief investigative stop is appropriate. 161 Consistent with this “stop” the officer may “take steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.” 162 And when conducting that pat-down the officer “feels” what he immediately recognizes as contraband he may reach inside the clothing and seize it pursuant to the “Plain Feel” doctrine. 163

“Specific and Articulable” facts supporting reasonable suspicion to “stop” and “frisk” have covered a wide spectrum of circumstances. 164 In Illinois v. Wardlow 165 the Court was called upon to decide whether a policeman had reasonable “articulable suspicion” to “stop” and “frisk” 166 a citizen, who upon seeing the officer arrive in a caravan of cars (the last car) began an “unprovoked” flight from “an area of heavy narcotics trafficking.” 167 According to the Court it was the citizen’s “headlong flight” from a “high crime area” 168 that resulted in the Court’s “commonsense judgment” that the officer possessed “reasonable suspicion” to lawfully “stop” and “frisk.” 169 Although the Court has noted that a citizen’s “presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable particularized suspicion that the person is committing a crime,” 170 “the fact that the stop occurred in a ‘high crime area’ is among the relevant contextual considerations in a Terry analysis.” 171

F. Reasonable suspicion to search for weapons in an automobile passenger compartment

In Michigan v. Long 172 the Court held that the search of an automobile’s passenger compartment was reasonable under Terry v. Ohio

“if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” 173

The police officers in Long saw the citizen-suspect driving erratically and at excessive speed. 174 Next, they saw the car turn down a side road and swerve into a ditch. 175 When the officers stopped to investigate, citizen-suspect emerged from the car (leaving the driver’s door open) and approached the officers. 176 After the officers made several requests to see the citizen-suspect’s driver’s license and registration, the citizen produced his driver’s license, but did not respond otherwise. 177 Instead of responding the citizen walked away from the officers back toward his car. During this sequence of events one of the officers commented that he thought (the suspect) “appeared to be under the influence of something.” 178

In any event, as the citizen-suspect walked toward the open door of the automobile the officers followed close behind him where they saw a large hunting knife on the floorboard. 179 Upon seeing the knife the officers subjected the citizen to a Terry pat-down and the passenger compartment of the car to a search for weapons. 180 The search of the passenger compartment revealed a pouch of marijuana. 181 The citizen-suspect was arrested for possession of marijuana. His car was impounded and searched at the police station. Approximately 75 pounds of marijuana was found in the trunk of his car.

The trial court denied the citizen-suspect’s motion to suppress. He was convicted of possession of marijuana. 182 The United Stated States Supreme Court upheld his conviction. In part, the Court rejected the citizen-appellant’s argument that “‘Terry authorized only a limited pat-down search of a person suspected of criminal activity’ rather than a search of an area.” 183 Noting that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers,” 184 the Court found that the principles from those cases compelled it to conclude that

“The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer posses a reasonable belief based on ‘specific and articulable facts …'” 185

G. A search beyond an arrestee’s immediate area of control “Protective Sweep”

In Maryland v. Buie 186 the Court examined circumstances that expanded the reach of a search incident to a lawful arrest. The facts began with an armed robbery of a Godfather’s Pizza restaurant by two men. 187 One of the robbers wore a red running suit. 188 On the same day of the robbery local police obtained arrest warrants for citizen-Buie and his suspected accomplice in that robbery. 189 As a result, citizen-Buie’s house was placed under police surveillance. 190

Two days later the police began the process of executing the arrest warrants. First, the police had a secretary call Buie’s house and verify that he was at home. 191 The secretary spoke to a female and to Buie. So, there were two people in the house. With this information “[s]ix or seven officers proceeded to Buie’s house.” 192 Once the officers were inside Buie’s house they “fanned out” to the first and second floors. One of the officers “announced that he would ‘freeze’ the basement so that no one could come up and surprise the officers.” 193 “With his service revolver drawn,” 194 the officer twice shouted into the basement, “ordering anyone down there to come out.” 195 A voice from the basement asked who was calling.” 196 In response to the query from the voice in the basement, the officer yelled, “This is the police, show me your hands.” 197 A pair of hands, belonging to citizen-Buie, emerged from the basement. Buie was arrested and handcuffed. After Buie was handcuffed, another (other than the arresting officer) officer entered the basement because, as he claimed, “‘in case there was someone else’ down
there.” 198 Upon entering the basement area the newly arrived officer noticed a red running suit lying in plain view. 199 The officer seized the running suit.

The defendant moved to suppress the running suit. His motion was denied and the State introduced the running suit against Buie during his trial. 200 Buie was convicted and he appealed.

The United States Supreme Court rejected Buie’s appeal.

The Court noted that the Fourth Amendment “bars only unreasonable searches and seizures.” 201 A review of its cases, the Court instructed, showed that in determining reasonableness it had “balanced the intrusion of the individual’s Fourth Amendment interests against the promotion of legitimate governmental interests.” 202 Terry v. Ohio 203 and Michigan v. Long 204 were cited by the Court as cases

“concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with, or able to gain immediate control of, a weapon that could unexpectedly and fatally be used against them.” 205

The Court identified an “analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being … arrested is not harboring other persons” 206 who might attack them. Like the protective “pat-down” in Terry and Long a “protective sweep” 207 of a house could provide such assurance.

“[w]e hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the areas to be swept harbors an individual posing a danger to those on the arrest scene.” 208

Unfortunately, the Buie Court did not limit itself to this one holding.

The Court also held

“that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces, immediately adjoining the place of arrest which an attack could be immediately launched.” 209

This is an “unfortunate” holding because the Buie Court only had to decide “what level of justification is required by the Fourth and Fourteenth Amendments before police officers … may conduct a warrantless protective sweep of all or part of the premises.” 210 Although the Court determined that the “level of justification” was less than a probable cause requirement, 211 the precautionary matter holding does not require probable cause nor reasonable suspicion. 212 How could the certified question require a “level of justification” but the “uncertified” query require no level of justification? Perhaps the Court intended to limit this additional holding to facts like those in Buie where the arrestee’s accomplice is unaccounted for at the time of the arrest. 213 Again, the Buie Court does not say.

H. “Reasonable Suspicion” based on an informant’s tip

Specific language in Terry suggests that an officer’s reasonable suspicion to “stop” and “frisk” may only occur when the officer has personally observed the suspicious conduct.

“But we deal with an entire rubric of police conduct … necessarily swift action predicated upon the on-the-spot observations of the officer on the beat ….” 214

Despite Terry‘s language, however, the Court has held that a policeman may develop “reasonable suspicion” to “stop” and “frisk” based on facts supplied by an informant. 215 For example, in Adams v. Williams 216 the Court held that after a police officer was told by a reliable informant that a suspect sitting in a nearby car had a gun at his waist, 217 the policeman did not act unreasonably by reaching into the suspect’s waist to remove the gun. 218

To reach this conclusion the Adams Court rejected the defendant-respondent’s “argument that reasonable cause for a stop and frisk could only be based on the officer’s personal observations, rather than on information supplied by another person.” 219 An informant’s tip, reasoned the Court, “may vary greatly in their value and reliability.” 220 Consequently, the Court opined, “one simple rule will not cover every situation.” 221 The Adams Court also concluded that the circumstances of the “stop” and “frisk” would determine whether the policeman had to initially “pat-down” a citizen’s outer clothing.

In Adams, the reliable informant reported that the suspect was carrying narcotics, a gun concealed in his waist-band, while “sitting alone in a car in a high crime area at 2:15 in the morning.” 222 On these facts alone, observed the Court, the officer who approached this suspect “had ample reason to fear for his safety.” 223 Consequently, when the suspect rolled the window down, rather than complying with the officer’s request to step out of the car. The officer’s “action in reaching (inside the car) to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude it was reasonable.” 224 That is, “under these circumstances” a pat-down of the suspect’s outer clothing was not required.

Similarly, in Alabama v. White 225 the Court held that a corroborated tip from an anonymous informant supported a reasonable suspicion to “stop” and “frisk.” 226 In White the police received an anonymous tip (1) asserting that a woman would be carrying cocaine from a particular location; and (2) predicting that this woman would leave a particular apartment building at a certain time, get into a car matching a specific description, and drive to a particular motel. 227 The Court conceded that “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity” 228 sufficient enough to support “reasonable suspicion” and

“Although it is a close case, we conclude that under a totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify, the investigatory stop of respondent’s car.” 229

On the other hand, the Court has held 230 that a police officer did not have “reasonable suspicion” to “stop” and “frisk” when his actions were based on information from an uncorroborated anonymous tip. 231 This tip, according to the Court, “lacked the moderate indicia of reliability present in White and essential to the Court’s decision in that case.” 232 According to the Court, this anonymous tip did not contain any “predictive” information upon which the police could “corroborate” or otherwise, “test” this information. 233

I. “Consensual Encounter or a Fourth Amendment Seizure

The United States Supreme Court has held that the Fourth Amendment is implicated when the government conducts a search or seizure. 234 A “seizure,” the Court has determined, may involve a “custodial arrest,” 235 a “stop” and “frisk,” 236 a “stop” and “interrogate” 237 (including a “traffic stop” 238) or when either a police officer uses physical force to detain a person or a person submits or yields to a police officer’s show of authority. 239 On the other hand, encounters unrelated to the detection and investigation of criminal conduct do not implicate the Fourth Amendment. 240 For example, The Fourth Amendment is not implicated where the police engage in so-called “community care taking” 241 tasks (i.e. removing abandoned cars from the highway).

The Court has held that “[a] person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when 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” 242 through means intentionally applied.” 243 And, the Court has noted that “[t]he law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver ‘even though the purpose of the stop is limited and the resulting detention quite brief.'” 244 In the same way, a traffic stop subjects a passenger to a Fourth Amendment seizure. 245 Because the Court interpreted this circumstance as follows

“We resolve this question by asking whether a reasonable person in Brendlin’s (the passenger) position when the car stopped would have believed himself free to ‘terminate the encounter’ between the police and himself we think that in these circumstances any reasonable passenger would have understood that the police officers to be exercising control to the point that no one in the car was free to depart without police permission.” 246

Generally the Court has concluded that “a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard the police and go about his business.'” 247 The Court has deemed a police officer’s act of “approaching” a person and asking a few questions as merely a consensual encounter and reasonable suspicion is not required to justify it. 248 In face, no justification is required. Consequently, the Court has devised a test for determining when a police-citizen encounter becomes a “seizure.” This test was created by the Court “combining” holdings from two apparent conflicting opinions – United States v. Mendenhall 249 and California v. Hodari D. 250

From 1980 to 1991 the Court’s test for determining whether a police-citizen encounter constituted a “seizure” was derived from Mendenhall. In Mendenhall the Court was asked to determine whether the defendant-respondent’s Fourth Amendment rights were violated “in the circumstances presented by this case.” 251 In brief, the defendant-respondent arrived at the Detroit Airport on a commercial airline from Los Angeles, California. 252 When she disembarked the airplane she was observed by two Drug Enforcement Administration (DEA) Agents. 253 The DEA agents were in the airport to investigate and detect the unlawful traffic in narcotics. 254 Upon observing the defendant-respondent the agents concluded that she fit the “characteristics of persons carrying narcotics” – the so-called “drug courier profile.” 255

The two agents approached the defendant-respondent as she walked through the airport concourse. After they identified themselves as federal agents they asked to see her identification and airline ticket. 256 She presented both documents to the agents. When one of the agents asked her why the name on the airline ticket was different from the name on her driver’s license she said, “[I] just felt like using that name.” 257 At that moment one of the agents identified himself as a narcotics agent. Upon that disclosure he claimed that the defendant-respondent “became quite shaken, extremely nervous. She had a hard time speaking.” 258

When the agent returned her driver’s license and airline ticket, he asked her to accompany them to the airport’s DEA office. 259 Although she did not give a verbal response, she accompanied the agents to the airport DEA office. 260 When they arrived at the DEA office a female police officer was summoned to conduct the search. 261 The female police officer asked the agents whether they defendant-respondent had consented to the search. The agents said she had consented to a search. 262 The defendant-respondent followed the female officer to a private room. In that room the defendant-respondent was asked whether she consented to the search. She said she gave consent to the search. 263
The female-officer explained that the search would require the defendant-respondent to disrobe. 264 The defendant-respondent expressed concern that she had a plane to catch. If she was not carrying any narcotics, the female officer told her, there “would be no problem.” 265 Without further comment the defendant-respondent disrobed. As she removed her clothes she took two small packages from her undergarments. One of those packages appeared to contain heroin. The defendant-respondent was arrested for possessing heroin. 266 The District Court denied the defendant-respondent’s motion to suppress the heroin packets because it concluded that the federal agents initial approach 267 and request to see her identification was a lawful stop under Terry v. Ohio. 268

The United States Supreme Court upheld her conviction 269, although the Supreme Court’s reasons were fractured between a no seizure 270 theory and a reasonable seizure 271 basis a singular test for determining a Fourth Amendment “seizure” emerged from Mendenhall

“We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” 272

This holding appeared at once to be both emphatic and dispositive about how “seizure” would be determined. However, in 1991 the Court held that satisfying Mendenhall‘s “free to leave” test would not alone, determine whether a “seizure” has occurred under the Fourth Amendment.

In California v. Hodari D 273 the Court rejected a respondent’s reliance on the language in Mendenhall that provided that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if … a reasonable person would have believed that he was not free to leave.” 274

“It says that a person has been seized ‘only if,’ not that he has been seized ‘whenever’; it states a necessary, but not a sufficient, condition for seizure … or, more precisely, for seizure effected through a ‘show of authority’ Mendenhall establishes that the test for existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer words and actions would have conveyed that to a reasonable person.” 275

A “seizure” only occurs where either the police brings the citizen under control or the citizen submits to the police assertion of authority. 276

On the other hand, this “free to leave” necessary step for determining a seizure is inappropriate when determining whether an employee at his worksite 277 or a passenger on a bus 278 has been seized under the Fourth Amendment. Because, as the Court explained it

“[w]hen the person is seated on a bus he has no desire to leave, the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.” 279

Instead, where the police activity did not confine either the employee to his worksite 280 or the passenger to the bus 281 a different test for determining seizure has been established by the Court.

“We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” 282

This rule, the Court added, applies to encounters that take place on a city street as well as on a bus. 283 The Court also rejected the argument that a citizen must have been seized “because no reasonable person would freely consent to a search of luggage that he knows contains drugs.” 284 This argument cannot prevail, opined the Court, “because the ‘reasonable person’ test presupposes an innocent person.” 285

J. “Stop” and “Interrogate” on less than probable cause

The Terry 286 Court specifically cautioned that it did not decide anything about the “constitutional propriety of an investigative ‘seizure’ upon less than probable cause.” 287 However, thirty six years after the Terry decision the Court in Hiibel v. Sixth Judicial Dist. Court 288 (Hiibel) held that a policeman may seize, detain and question a citizen on less than probable cause. 289 In Hiibel the sheriff’s department received a telephone call where the caller reported seeing a man assault a woman in a red and silver GMC truck on a local roadway. 290 A deputy sheriff was dispatched to that location in order to investigate that report. When the deputy arrived at the scene of the purported assault he found the described truck parked on the side of the road. 291 Standing next to the truck was a man and a young woman was sitting inside the truck. Because he also noticed skid marks in the gravel behind the truck, he believed that meant that the truck had come to a sudden stop. 292

The deputy approached the man and “explained that he was investigating a report of a fight.” 293 When the officer asked the man if had “any identification on [him]” the man not only refused to produce identification, but he also asked the deputy why he wanted to see identification. 294 Again, the officer explained that he was conducting an investigation and that he needed to see some identification. 295 The deputy’s explanation did not satisfy the man nor encourage him to produce identification. Indeed, the man became agitated and insisted that he had done nothing wrong. 296 Then the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. 297 Although the deputy asked for identification eleven (11) times the man refused each time. Finally the officer threatened to arrest the man if he did not identify himself. 298 The citizen refused to comply. As a result, he was arrested. 299 The arrested man was citizen Larry Dudley Hiibel.

Citizen Hiibel was charged with “wilfully resist[ing], delay[ing] or obstruct[ing] a public officer in discharging or attempting to discharge any legal duty of his office” in violation of applicable Nevada law. 300 This state law required, in part, that a person who has been detained by a peace officer “under circumstances which reasonably indicate that the [detained] person has committed – a crime 301 shall identify himself.” 302 Citizen-Hiibel argued that this state law violated the Fourth and Fifth Amendments. 303 The trial court rejected his argument and he was convicted. On appeal to the State Supreme Court his arguments were again rejected and his conviction was upheld. 304 The Supreme Court granted certiorari. 305

Generally citizen-Hiibel argued that his conviction could not “stand because the officer’s conduct violated the Fourth Amendment.” 306 Specifically he claimed that Terry v. Ohio provided that a citizen could not be arrested and prosecuted for refusing to answer an officer’s questions during a lawful Terry stop. 307 Because of precise language in the Terry opinion, citizen-Hiibel claimed the deputy violated his Fourth Amendment rights by arresting him for refusing to identify himself.

“In Terry, Justice White stated in a concurring opinion that a person detained in an investigative stop can be questioned but is “not obliged to answer , answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” 308

The Court rejected the argument and the quote from Terry supporting it.

“We do not read these statements as controlling. The passages recognize that the Fourth Amendment does not impose obligations on the citizen but instead provide rights against the government. As a result, the Fourth Amendment itself can not require a suspect to answer questions. This case concerns a different issue, however.  Here the source f the legal obligation arises from Nevada State law, not the Fourth Amendment.” 309

Hence, the Court concluded that the particular language in Justice White’s concurrence did not answer the question “whether a state can compel a suspect to disclose his name during a Terry stop.” 310 As long as a Terry stop is “justified at its inception” 311 (based on “articulable facts”) a question requesting identification that is “reasonably related in scope to the circumstances which justified 312 the stop will be considered constitutional.

Conclusion

Regrettably, the United States Supreme Court’s efforts to clearly define the limits of the police’s power and the scope of a citizen’s Fourth Amendment rights during a search incident to an arrest have been unsuccessful. Indeed, the Court has failed to (1) define the “area within an arrestee’s immediate control;” (2) explain when an occupant or recent occupant of a car is an “unsecured”arrestee; (3) determine whether the police are limited to a search of the passenger compartment (Belton) or whether they are allowed to search the entire car when it is reasonable to believe that evidence relevant to the crime might be found in the car (Gant); (4) identify whether the police may open doors adjacent to any area / room where an arrest has occurred; or (5) clarify the characteristics of a “high crime” area.

More opinions from the Court appear to add more complexity than clarification. Perhaps the Court could begin a worthwhile attempt to clarify this area by simply holding (in those cases where a citizen-arrestee is in his home when the search-incident to an arrest occurs), the so called “precautionary matter” search (those doors adjacent to where an arrest has occurred) will only be allowed if the arrestee has an unaccounted for co-conspirator or partner in crime.

Notes

  1. Weeks v. United States, 232 U.S. 383 (1914); Agnello v. United States, 269 U.S. 20 (1925); Carroll v. United States, 267 U.S. 132 (1925); Cupp v. Murphy, 412 U.S. 291 1972); United States v. Robinson, 414 U.S. 218 (1973); Gustafson v. Florida, 414 U.S. 260 (1973).
  2. Carroll v. United States, 267 U.S. 132 (1925); Agnello v. United States, 269 U.S. 20 (1925); Marron v. United States, 275 U.S. 192 (1927); Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931); United States v. Lefkowitz, 285 U.S. 452 (1932); Harris v. United States, 331 U.S. 145 (1947); Trupiano v. United States, 334 U.S. 699 (1948); Chimel v. United States, 395 U.S. 752 (1969); New York v. Belton, 453 U.S. 454 (1981); Thornton v. United States, 541 U.S. 615 (2004); Arizona v. Gant, 556 U.S. 332 (2009).
  3. Carroll v. United States, 267 U.S. 132 (1925); Agnello v. United States, 269 U.S. 20 (1925); Marron v. United States, 275 U.S. 192 (1927); Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931); United States v. Lefkowitz, 285 U.S. 452 (1932); Harris v. United States, 331 U.S. 145 (1947); Trupiano v. United States, 334 U.S. 699 (1948); Chimel v. United States, 395 U.S. 752 (1969).
  4. Weeks v. United States, 232 U.S. 383 (1914); Agnello v. United States, 269 U.S. 20 (1925); Carroll v. United States, 267 U.S. 132 (1928); Cupp v. Murphy, 412 U.S. 291 (1973); United States v. Robinson, 414 U.S. 218, (1973); Gustafson v. Florida, 414 U.S. 260 (1973).
  5. 232 U.S. 383 (1914).
  6. Agnello v. United States, 269 U.S. 20 (1925); Carroll v. United States, 267 U.S. 132 (1925); Cupp v. Murphy, 412 U.S. 291 (1973); United States v. Robinson, 414 U.S. 218 (1973).
  7. United States v. Robinson, 414 U.S. 218, 230 (1973).
  8. 414 U.S. 218 (1973).
  9. 414 U.S. at 220.
  10. 414 U.S. at 221.
  11. 414 U.S. at 221.
  12. 414 U.S. at 223.
  13. 414 U.S. at 223.
  14. 414 U.S. at 234.
  15. 414 U.S. at 234-35.
  16. 414 U.S. at 235.
  17. 414 U.S. at 235 (emphasis supplied).
  18. Gustafson v. Florida, 414 U.S. 260, 265 (1973).
  19. Agnello v. United States, 269 U.S. 20, 30-31 (1925). The Court has employed the phrases “area in his control” and the place “where the arrest was made”, interchangeably.
  20. 269 U.S. at 30-31 (citing Carroll v. United States, 267 U.S. 132, 158 (1925); and Weeks v. United States, 232 U.S. 383, 392 (1914)).
  21. 269 U.S. at 30-31.
  22. 269 U.S. at 30.
  23. Marron v. United States, 275 U.S. 192 (1927).
  24. Go Bart Importing Co. v. United States, 282 U.S. 344 (1931).
  25. United States v. Lefkowitz, 285 U.S., 452 (1932).
  26. Harn’s v. United States, 331 U.S. 145 (1947).
  27. Trupiano v. United States, 334 U.S. 699 (1948).
  28. United States v. Rabinowitz, 339 U.S. 56 (1950).
  29. 395 U.S. 752 (1969).
  30. 395 U.S. at 753.
  31. 395 U.S. at 753.
  32. 395 U.S. at 755.
  33. 395 U.S. at 754.
  34. 395 U.S. at 754.
  35. 395 U.S. at 754.
  36. 395 U.S. at 768.
  37. 395 U.S. at 763.
  38. 395 U.S. at 763 (emphasis supplied).
  39. 395 U.S. at 763.
  40. 395 U.S. at 763.
  41. 395 U.S. at 763.
  42. 395 U.S. at 763.
  43. 395 U.S. at 763.
  44. New York v. Belton, 453 U.S. 454, 458 (1981).
  45. 453 U.S. at 459 (citing cases supporting a valid or an invalid search).
  46. 453 U.S. at 459.
  47. 453 U.S. at 459.
  48. 453 U.S. at 460.
  49. 453 U.S. 454 (1981).
  50. 453 U.S. at 455.
  51. 453 U.S. at 455.
  52. 453 U.S. at 455.
  53. 453 U.S. at 455.
  54. 453 U.S. at 455-56.
  55. 453 U.S. at 456.
  56. 453 U.S. at 456.
  57. 453 U.S. at 456.
  58. 384 U.S. 436 (1966).
  59. 453 U.S. at 456.
  60. 453 U.S. at 456.
  61. 453 U.S. at 456.
  62. 453 U.S. at 456.
  63. 453 U.S. at 463.
  64. 453 U.S. at 460 (citing Chimel v. United States, 395 U.S. 752, 763 (1969)).
  65. 453 U.S. at 460.
  66. 453 U.S. at 460.
  67. 453 U.S. at 461.
  68. 414 U.S. 218 (1973).
  69. 453 U.S. at 461.
  70. See generally Notes _____ to _____ Supra, and the accompanying text.
  71. 541 U.S. at 615.
  72. 541 U.S. at 619.
  73. 541 U.S. at 623-24.
  74. 541 U.S. at 617.
  75. 541 U.S. at 618.
  76. 541 U.S. at 618.
  77. 541 U.S. at 618.
  78. 541 U.S. at 618.
  79. 541 U.S. at 618.
  80. 541 U.S. at 618.
  81. 541 U.S. at 618.
  82. 541 U.S. at 618.
  83. 541 U.S. at 618.
  84. 541 U.S. at 618.
  85. 541 U.S. at 618-19.
  86. 541 U.S. at 616 (Rehnquist, C.J., delivered the opinion of the Court except as to footnote 4. Kennedy, J., Thomas, and Bryer, J. joined that opinion in full).
  87. 541 U.S. at 622 (citing New York v. Belton, 453 U.S. 454, 460 (1981)).
  88. 556 U.S. 332, 129 S. Ct. 1710 (2009).
  89. 129 S. Ct. at 1714.
  90. 129 S. Ct. at 1714-15.
  91. 129 S. Ct. at 1715.
  92. 129 S. Ct. at 1715.
  93. 129 S. Ct. at 1715.
  94. 129 S. Ct. at 1715.
  95. 129 S. Ct. at 1715.
  96. 129 S. Ct. at 1715.
  97. 129 S. Ct. at 1715.
  98. 129 S. Ct. at 1715.
  99. 129 S. Ct. at 1715.
  100. 129 S. Ct. at 1715.
  101. 129 S. Ct. at 1715.
  102. 129 S. Ct. at 1716.
  103. 129 S. Ct. at 1718.
  104. 129 S. Ct. at 1718.
  105. 19 S. Ct. at 1718 (emphasis supplied).
  106. 129 S. Ct. at 1719 (emphasis supplied).
  107. 129 S. Ct. at 1725. “No other Justice, however, shares my view that the application of Chimel in this context should be entirely abandoned.” (Scalia, J., concurring in judgment).
  108. 129 S. Ct. at 1719 (quoting Thornton v. United States, 541 U.S. at 615, 632 (2004), Scalia, J., concurring in judgment).
  109. United States v. Robinson, 414 U.S. 218 (1973) (The need to disarm the suspect (the need to preserve evidence).
  110. Knowles v. Iowa, 525 U.S. 113, 118-19 (1998).
  111. Katz v. United States, 389 U.S. 347 (1967).
  112. 389 U.S. at 357, United States v. Robinson, 414 U.S. 218, 224 (1973).
  113. United States v. Robinson, 414 U.S. 218 (1973).
  114. 414 U.S. at 235.
  115. Chimel v. California, 395 U.S. 752 (1969).
  116. Terry v. Ohio, 392 U.S. 1 (1968).
  117. 392 U.S. 1 (1968).
  118. 392 U.S. 1 (1967).
  119. 392 U.S. at 5.
  120. 392 U.S. at 5.
  121. 392 U.S. at 5-6.
  122. 392 U.S. at 6.
  123. 392 U.S. at 6.
  124. 392 U.S. at 6-7.
  125. 392 U.S. at 7.
  126. 392 U.S. at 7.
  127. 392 U.S. at 7.
  128. 392 U.S. at 7.
  129. 392 U.S. at 7.
  130. 392 U.S. at 7. The trial judge said that it “would be stretching the facts beyond reasonable comprehension” to find that the detective had probable cause to arrest.
  131. 392 U.S. at 8.
  132. 392 U.S. at 8.
  133. 392 U.S. at 8.
  134. 392 U.S. at 16.
  135. 392 U.S. at 16.
  136. 392 U.S. at 16-17.
  137. 392 U.S. at 17.
  138. 392 U.S. at 19.
  139. 392 U.S. at 19.
  140. 392 U.S. at 19-20.
  141. 392 U.S. at 20.
  142. 392 U.S. at 20-21 (quoting Camara v. Municipal Court, 387 U.S. 523, 534-35, 536-37 (1967)).
  143. 392 U.S. at 21 (emphasis supplied).
  144. 392 U.S. at 21-22.
  145. 392 U.S. at 20, n.16.
  146. 392 U.S. at 16.
  147. 392 U.S. at 19.
  148. 392 U.S. at 20-21.
  149. 392 U.S. at 21.
  150. 392 U.S. at 21.
  151. 392 U.S. at 21 United States v. Arvizu, 534 U.S. 266 (2002)(Totality of all the facts).
  152. 392 U.S. at 21-22 (quoting Carroll v. United States, 267 U.S. 132 (1925); Beck v. Ohio, 379 U.S. 89, 96-97 (1964)).
  153. 392 U.S. at 30. United States v. Sokolow, 490 U.S. 1, 7 (1989), United States v. Cortez, 449 U.S. 411 (1981).
  154. Sibron v. New York, 392 U.S. 40 (1968).
  155. 392 U.S. at 64 (emphasis supplied).
  156. 392 U.S. at 64.
  157. United States v. Arvizu, 534 U.S. 266 (2002).
  158. 534 U.S. at 274.
  159. 534 U.S. at 274 (citing Ornelas v. United States, 517 U.S. 690, 695-96 (1996)(quoting Illinois v. Gates, 462 U.S. 213, 22 (1983)).
  160. 534 U.S. at 275.
  161. 392 U.S. at 21-22 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).
  162. 392 U.S. at 23.
  163. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).
  164. Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (collecting cases).
  165. 528 U.S. 119 (2000).
  166. 528 U.S. at 123.
  167. 528 U.S. at 124.
  168. 528 U.S. at 124.
  169. 528 U.S. at 125.
  170. 528 U.S. at 124 (emphasis supplied (citing Brown v. Texas, 443 U.S. 47 (1979).
  171. 528 U.S. at 124 (citing Adams v. Williams, 407 U.S. 143 (1972)).
  172. 463 U.S. at 1032 (1983).
  173. 463 U.S. at 1049.
  174. 463 U.S. at 1035.
  175. 463 U.S. at 1035.
  176. 463 U.S. at 1035-36.
  177. 463 U.S. at 1036.
  178. 463 U.S. at 1036.
  179. 463 U.S. at 1036.
  180. 463 U.S. at 1036.
  181. 463 U.S. at 1036.
  182. 463 U.S. at 1036.
  183. 463 U.S. at 1045.
  184. 463 U.S. at 1047 (citing Pennsylvania v. Mimms, 434 U.S. 106 (1977); and Adams v. Williams, 407 U.S. 143 (1972)).
  185. 463 U.S. at 1049.
  186. 494 U.S. 325 (1990).
  187. 494 U.S. at 328.
  188. 494 U.S. at 328.
  189. 494 U.S. at 328.
  190. 494 U.S. at 328.
  191. 494 U.S. at 328.
  192. 494 U.S. at 328.
  193. 494 U.S. at 328.
  194. 494 U.S. at 328.
  195. 494 U.S. at 328.
  196. 494 U.S. at 328.
  197. 494 U.S. at 328.
  198. 494 U.S. at 328.
  199. 494 U.S. at 328.
  200. 494 U.S. at 328.
  201. 494 U.S. at 331 (citing Skinner v. Railway Labor Executives’ Assn, 489 U.S. 602 (1980)).
  202. 494 U.S. at 331 (citing United States v. Villamont-Marquez, 462 U.S. 579, 588 (1983); Delaware v. Prouse, 440 U.S. 648, 654 (1979)).
  203. 392 U.S. 1 (1968).
  204. 463 U.S. 1032 (1983).
  205. 494 U.S. at 333.
  206. 494 U.S. at 333 (emphasis supplied).
  207. 494 U.S. at 333.
  208. 494 U.S. at 334, 337.
  209. 494 U.S. at 334 (emphasis supplied).
  210. 494 U.S. at 327.
  211. 494 U.S. at 334, 337.
  212. 494 U.S. at 334.
  213. 494 U.S. at 328.
  214. 392 U.S. at 20.
  215. Adams v. Williams, 407 U.S. 143 (1972).
  216. 407 U.S. at 143 (1970).
  217. 407 U.S. at 144-45.
  218. 407 U.S. at 147-48.
  219. 407 U.S. at 147.
  220. 407 U.S. at 147.
  221. 407 U.S. at 147.
  222. 407 U.S. at 147.
  223. 407 U.S. at 148.
  224. 407 U.S. at 148.
  225. 496 U.S. at 325 (1990).
  226. 496 U.S. at 326.
  227. 496 U.S. at 327.
  228. 496 U.S. at 329.
  229. 496 U.S. at 332.
  230. Florida v. J.L., 529 U.S. 266 (2000).
  231. 529 U.S. at 271.
  232. 529 U.S. at 271.
  233. 529 U.S. at 271.
  234. Katz v. United States, 389 U.S. 347 (1967).
  235. United States v. Robinson, 414 U.S. 218 (1973); Gustafson v. California, 414 U.S. 260 (1973).
  236. Terry v. Ohio, 392 U.S. 1 (1968).
  237. Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004).
  238. Brendlin v. California, 551 U.S. 249 (2007).
  239. California v. Hodari D, 499 U.S. 621, 626-29 (1991).
  240. Cady v. Dombrowski, 413 U.S. 433 (1973); South Dakota v. Opperman, 428 U.S. 364 (1976).
  241. 413 U.S. at 441, 428 U.S. at 368.
  242. Brendlin v. California, 551 U.S. 249, 254 (2007) (citing Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19, n16 (1968)).
  243. 551 U.S. at 254 (citing Brower v. County of Inyo, 489 U.S. 593, 597 (1989)).
  244. 551 U.S. at 255 (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)).
  245. 551 U.S. at 256-57.
  246. 551 U.S. at 257 (citing Florida v. Bostick, 501 U.S. 429, 436 (1991)).
  247. Florida v. Bostick, 501 U.S. 429, 434 (1991)(quoting California v. Hodari D, 499 U.S. 621, 628 (1991)); Florida v. Royer, 460 U.S. 491 (1983); Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984); INS v. Delgado 466 U.S. 210, 216 (1984).
  248. 501 U.S. at 434.
  249. 446 U.S. 544 (1980).
  250. 499 U.S. 621 (1991).
  251. 446 U.S. at 547.
  252. 446 U.S. at 547.
  253. 446 U.S. at 547.
  254. 446 U.S. at 547.
  255. 446 U.S. at 547, n.1.
  256. 446 U.S. at 548.
  257. 446 U.S. at 548.
  258. 446 U.S. at 548.
  259. 446 U.S. at 548.
  260. 446 U.S. at 548.
  261. 446 U.S. at 548.
  262. 446 U.S. at 548.
  263. 446 U.S. at 548.
  264. 446 U.S. at 549.
  265. 446 U.S. at 549.
  266. 446 U.S. at 549.
  267. 446 U.S. at 549.
  268. 446 U.S. at 549.
  269. 446 U.S. at 559-60.
  270. 446 U.S. at 555 (Stewart, J. and Rehnquist, J.).
  271. 446 U.S. at 560 (Powell, J., joined by Burger, C.J., and Blackmun, J., concurring in part and concurring in the judgment).
  272. 446 U.S. at 554-555 (emphasis supplied).
  273. 499 U.S. 621 (1991).
  274. 499 U.S. 627-628.
  275. 499 U.S. at 628 (emphasis in the original).
  276. 499 U.S. at 626-628.
  277. INS v. Delgado, 466 U.S. 210, 216 (1984).
  278. Florida v. Bostick, 501 U.S. 429 (1991); United States v. Drayton, 536 U.S. 194 (2002).
  279. 501 U.S. at 435-36.
  280. INS v. Delgado, 466 U.S. 210, 216 (1984).
  281. Florida v. Bostick, 501 U.S. 429 (1991); United States v. Drayton, 536 U.S. 194 (2002).
  282. 501 U.S. at 439 (emphasis supplied).
  283. 501 U.S. at 439-40.
  284. 501 U.S. at 437-38.
  285. 501 U.S. at 438 (emphasis in the original).
  286. Terry v. Ohio, 392 U.S. 1 (1968).
  287. 392 U.S. at 20, n.16.
  288. 542 U.S. 177 (2004).
  289. 542 U.S. at 187-89.
  290. 542 U.S. at 180.
  291. 542 U.S. at 180.
  292. 542 U.S. at 180.
  293. 542 U.S. at 180.
  294. 542 U.S. at 181.
  295. 542 U.S. at 181.
  296. 542 U.S. at 181.
  297. 542 U.S. at 181.
  298. 542 U.S. at 181.
  299. 542 U.S. at 181.
  300. 542 U.S. at 181.
  301. 542 U.S. at 181.
  302. 542 U.S. at 181 (emphasis supplied).
  303. 542 U.S. at 182.
  304. 542 U.S. at 182.
  305. 542 U.S. at 182.
  306. 542 U.S. at 185.
  307. 542 U.S. at 186-87.
  308. 542 U.S. at 187 (emphasis supplied)(quoting Terry v. Ohio, 392 U.S. 1, 34 (White, J., concurring) (1968)).
  309. 542 U.S. at 187.
  310. 542 U.S. at 187.
  311. 542 U.S. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)).
  312. 542 U.S. at 188 (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)).
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