CRIMINAL PROCEDURE

2023
E-01
Professor Laura Greenberg-Chao
Lgreenberg.chao@nesl.edu
Mondays 6-7:25
Wednesdays 7:35-8:55 pm

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 Seizure of items
1. Is there a 4A seizure of an item? (Does
the 4A apply?) – meaningful interference
with possession
2. If yes, was it reasonable?
a) Duration
b) Scope
c) Level of suspicion

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2 common situations where you
need to analyze seizure of items
1. Police hold someone’s property but don’t
search until later (i.e. US v. Place)
2. Detention of an item in order to do a
binary search (dog sniff, field test)
a) No 4A search
b) But still need to evaluate whether the
detention was lawful

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 Dog sniff issues
1. On its own, a dog sniff is not a 4A search
(binary!)
2. But, need to evaluate if dog is doing the
sniff from a lawful vantage point
3. And, it’s likely that the police are
detaining an item (or a person!) while
doing the dog sniff, so need to evaluate
the detention!
a) Was the detention reasonable?
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 Seizures of People - Analysis

1. Is there a 4A seizure? (does the 4A

apply? If not, don’t need to analyze any
further)

2. If yes, was the 4A seizure reasonable?

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 Seizures of People - Analysis
1. Is there a 4A seizure?
a) Would a reasonable person in the
suspect’s position feel free to
leave/terminate the encounter?
b) AND, did police restrain suspect’s
liberty by physical force or a show of
authority (to which suspect submitted)?
2. If so, is the 4A seizure reasonable?
a) Method?
b) Did the level of suspicion justify the duration
and scope of the investigation into the
reason for the stop? 6
 Hypo 1
• Officer sees a man who looks dirty and
disheveled walking in an upscale
neighborhood.
• Officer walks next to him and ask him for ID.
• When he takes his ID out of his pocket, a
small baggie containing crack cocaine falls
out.
• Officer arrests him and his attorney moves to
suppress.
• What is the 4A issue, and how will the court
come out? 7
 Hypo 1, continued – how does the
seizure analysis affect the drugs?
1. If no 4A seizure, no need to analyze if
police conduct was reasonable – and
drugs are admissible bc there was no 4A
viol that led to the drugs falling out.
2. If there was a 4A seizure and it was
reasonable – drugs are admissible bc
there was no 4A viol that led to the drugs
falling out.
3. If there was a 4A seizure, and it was NOT
reasonable – drugs must be suppressed 8
 Hypo 1 – was there a 4A
seizure?
• Would a reasonable person in suspect’s
position feel free to leave?
• Did the police restrain the suspect’s liberty
by physical force or a show of authority to
which the suspect submitted?

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 Hypo 2
• Officer sees a man who looks dirty and
disheveled walking in an upscale
neighborhood.
• Officer has reasonable suspicion to believe he
is involved in drug trafficking.
• Officer walks next to him and ask him for ID.
• When he takes his ID out of his pocket, a
small baggie containing crack cocaine falls out
=> arrest => motion to suppress.
• What is the 4A issue, and how will the court
come out? 10
 Hypo 2 with some testimony from
the suspect
• Officer sees a man who looks dirty and
disheveled walking in an upscale
neighborhood.
• Officer has reasonable suspicion to believe he
is involved in drug trafficking.
• Officer walks next to him and ask him for ID,
baggie of crack falls out.
• Defendant testifies at the suppression hearing:
“I never feel free to leave when there’s a cop
around. I didn’t know I could have walked
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away.”
 3 categories of police interactions
with civilians/suspects
1. Consensual encounter
a) Police walk up to someone in public, ask
questions
b) Police don’t need any suspicion
c) Reasonable person would feel free to leave
without answering any questions
d) This is NOT a 4A seizure (no restraint on
freedom)

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 3 categories of police interactions
with civilians/suspects
2. Arrest
a) Must be supported by probable
cause that this D committed a crime
b) Officer can: handcuff, SILA, maybe
inventory search, maybe take a statement,
do a identification procedure, etc.
c) Need arrest warrant for arrest in
home, REP (or an exception)
d) Arrest is a 4A seizure 13
 3 categories of police interactions
with civilians/suspects
3. Stop/seizure/Terry stop/temporary
investigative detention
a) In between the other two categories
b) 4A seizure – reasonable person would
NOT feel free to leave
c) Must be supported by reasonable
suspicion that suspect is involved in
crime (pat frisk requires more)
d) What can officer do? Reasonable
investigation, depends on the level of
suspicion 14
 Review problem 3 (p. 204)
• Why does it matter if D was seized at
some point?
• Was D seized when:
– Officer pulled up behind car, shined spotlight
and ran license plate?
– Officer approached on foot with flashlight?
– Officer asked D to roll down window and D
complied?
– Officer asked why D was there and then
asked him to start car?
– Officer asked for license and registration?
– Officer ordered D out and frisked him? 15
 Review problem 4– Confrontation at the
bus depot (p. 205)
• 16 year old Darla
• Bus ride – Denver to St. Louis
• Leaves bathroom disoriented; they suspect drugs
• Police stand between Darla and the bus, and pick up her
bag
• Ask for consent, she says no, doesn’t want to miss bus
• Police: continues holding bag but says “you are free to
go”
• 5 seconds of silence, then she said “fine, you can
search”
• Was Darla seized at any point? (when, if at all, did the
4A apply?) 16
 US v. Drayton
• D’s argument: unlawful 4A seizure (with
no reasonable suspicion); thus consent
was unlawful; thus all evidence that police
obtained after must be suppressed

• Ct: No 4A seizure (make sure you

understand how the court justified this)

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 Drayton + consent
• Was the consent voluntary? Ct says yes
• If the Court had found an unlawful 4A
seizure (i.e. the opposite of what it found)
would that have automatically invalidated
consent?
– NOT AUTOMATICALLY
– Still determine:
• Is consent voluntary?
• AND – was the consent a product of the unlawful
seizure? 18
 Drayton dissent

• “A police officer who is certain to get

his way has no need to shout”

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 Seizure of people - Analysis
1. Is there a 4A seizure of a person?
– Seizure = when a reasonable person in
suspect’s position would not feel free to leave
– SOME Factors that indicate seizure (not
consent-encounter):
• Threatening behavior by officers
• Display of a weapon
• Physical touching
• Use of language/tone that indicates
compliance is required/command/order
• Blocking path; holding ticket or ID
• Whether suspect is young 20
HYPO 3 – seizure at any point?
• Two federal drug agents in plain clothes
approach Jane as she proceeds through
the airport. They tell her who they are,
and request her ID and ticket. She
produces the ID and ticket. They ask a
bunch of questions about her travel plans.
She answers. They give her back her ID
and ticket. Then they ask her to come
with them to their office. She goes with
them. Eventually they build PC to get a
SW to search her luggage and find drugs. 21
 HYPO 4
-Officers drive past pedestrian
-Pedestrian changes direction and runs
when he sees them
- Officers follow alongside in the car, one
gets out and runs behind pedestrian
- Pedestrian keeps running, throws baggie
- Recovery of baggie => drugs
- What will D argue at MTS?
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 Hodari D
“The word seizure does not remotely
apply, however, to the prospect of a
policeman yelling Stop, in the name of
the law” at a fleeing person who
continues to flee . . . A seizure requires
either physical force or, where that is
absent, submission to the assertion of
authority.” 23
 Hodari D + Madrid v. Torres
• Hodari D: 4A seizure requires either
physical force OR, if no physical force,
submission to a show of authority
– No seizure when someone is running away
until either they are ordered to stop and do, or
until they are physically caught
• Madrid. v. Torres: 4A seizure where police
apply physical force with intent to restrain,
even if person does not submit and is not
restrained 24
 Tykorie Evelyn – MA SJC 2020
• D argues AGE and RACE are both
relevant to whether a reasonable person in
suspect’s position would feel free to leave
(seizure)
• Ct:
– Age is relevant to seizure analysis
- Race is relevant to explain why someone
might flee from the police or react in a certain
way (police cannot base their suspicion entirely
on flight) 25
 What is a seizure? - cases
• Drayton
• Us v. Place
• Tykorie Evelyn
• Hodari D
• Madrid v. Torres
• Mendenhall
• Royer

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 Tennessee v. Garner (1985)
- Was there a seizure?
- YES, when the officer shot the defendant!

- Was the seizure reasonable?

- No, use of deadly force must be justified by
actual and imminent threat to the lives or
safety of others

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 Scott v. Harris

https://www.oyez.org/cases/2006/05-1631

44:00-45:23

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