LEH 1 Ch 1 ARREST, SEARCH AND SEIZURE

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LEH 1 ARREST, SEARCH AND SEIZURE Ch 1.1

1.1 INTRODUCTION
An arrest may be defined as a 1-____with the liberty of a person, resulting in his apprehension and custodial detention.

1-substantial physical interference

An arrest may be affected 1-_____

actually or constructively

An arrest may be affected actually or constructively.
arrest occurs when a duly empowered officer intentionally employs physical force, and delivers a formal communication of a present intention to arrest. (You are under arrest.)

i. Actually - an actual

An arrest may be affected actually or constructively.
- occurs without an intentional use of physical force and without a formal statement indicating an intention to take the person into custody. (It is implied by all the circumstances surrounding the encounter.)

ii. Constructive

Courts have consistently equated arrest with seizure

An arrest, the taking hold of ones person is quintessentially a seizure.

The officers 1-___ that a suspect was not free to leave, so long as that view was not conveyed will not transform a casual voluntary encounter in to a full blown arrest.

1-subjective view

The 1-___ applied by the courts uses the reasonable person test to determine whether the encounter requires a level of constitutional justification.

1-objective standard

The process refers to the totality of the circumstances (1-___.)

1-the whole picture

The provisions of New Jerseys constitution which mirrors the 4th amendment is found in 1-___.

1-Article 1 paragraph 7 of N.J. Constitution

It is not easy to determine when a Constructive arrest, (1-_____) occurs.
Courts will consider the following factors:

1-Also called De Facto arrest

The constitutional justification for an arrest is 1-___. More than reasonable suspicion but less that actual proof.

1-Probable Cause

Probable Cause
It must find its place somewhere above 1-___ but below a preponderant level of proof

1-reasonable suspicion

Probable cause is the same for both

arrest and search

Probable cause to arrest or search is defined as

- a well grounded suspicion or belief on the part of the searching or arresting officer.

Staircase of belief or proof
0% - stimuli, Reasonable suspicion, Probable cause, Preponderance of evidence,

Clear and convincing, beyond a reasonable doubt.

Chapter 1.2 ARREST
PROBABLE CAUSE
STATE V SHEFFIELD
1973

DETECTIVES CONDUCTING A LOW VISIBILITY PATROL IN KNOWN NARCOTICS AREA
OBSERVED A KNOWN DRUG PUSHER AND CALLED HIM BY NAME AND HE WALKED AWAY QUICKLY
OFFICER GETS OUT OF CAR AND DEFENDANT PUT RIGHT HAND TO MOUTH
AT THAT POINT COPS HAVE PROBABLE CAUSE TO ARREST

GOOD

THERE WAS NO INDICATION THE DEFENDANT WAS TO BE DETAINED

THE PERSON STOPPED IS NOT OBLIGATED TO ANSWER

HIS MOTION TO HIS MOUTH GAVE DETECTIVE PROBABLE CAUSE TO BELIEVE DEFENDANT WAS ENGAGED IN CRIMINAL ACTIVITY

THE INFORMAL MERE INQUIRY

OFFICERS DO NOT VIOLATE THE 4TH AMENDMENT BY MERELY APPROACHING AN INDIVIDUAL ON THE STREET.

ALSO KNOWN AS INFORMAL ENCOUNTER

DOES NOT NEED ANY LEVEL OF SUSPICION AND PERSON MAY WALK AWAY

FLORIDA V ROYER
1983

AS THE COURT STATED, THE PERSON NEED NOT ANSWER ANY QUESTIONS PUT TO HIM

MAY NOT BE DETAINED EVEN MOMENTARILY.

STATE V ABREU
1992

ON THE SPOT QUESTIONING OF DEFENDANT, PASSENGERS IN A CAB, STOPPED FOR MV VIOLATION, WHO ALREADY WERE VALID SUBJECTS OF A DRUG SURVEILLANCE, HELD NOT TO VIOLATE THE CONSTITUTION.

GOOD

STATE V DOSS
1992

UNMARKED CAR DROVE INTO PARKING LOT, DROVE NEAR WALL, LATE ON A COLD NIGHT. 20 INDIVIDUALS AND SOME ONE YELLS 50 AND 4 PARTIES RUN. POLICE CHASE DOSS AND YELL STOP, HE REFUSES, AT THAT POINT HE IS COMMITING A D.P. OFFENSE ( OBSTRUCTING 29-1 ) COP IDES HIM AS TALKING TO DRUG DEALERS. AT THIS POINT HE HAS REASONABLE SUSPICION TO DETAIN HIM. WHEN THEY TACKLE HIM CDS FALLS FROM HIS HAT.PROBABLE CAUSE AROSE WHEN HE RECOGNIZED HIM AS SPEAKING WITH DRUG DEALERS

GOOD

PROBABLE CAUSE AROSE IN 2 WAYS
FIRST, THE TOTALITY OF THE CIRCUMSTANCES GAVE THE POLICE PC TO BELIEVE DEFENDANT COMMITED A CRIMINAL OFFENSE

SECOND, REFUSAL TO SUBMIT TO OFFICERS LAWFUL ORDER TO HALT VIOLATED OBSTRUCTION 29-1

WHEN THEY BEGAN CHASING HIM THEY DID NOT HAVE P.C.

THEY WERE ENTITLED TO ORDER HIM TO HALT AND USE FORCE TO MAKE HIM COMPLY

THE CONCURRENT SEIZURE AND SEARCH OF THE CAP WERE LAWFUL BECAUSE IT WAS INCIDENT TO A LAWFUL ARREST

REFUSAL TO HALT WAS AN INTERFERENCE

STATE V DANGERFIELD
2002

OFFICERS DRIVING NEAR HOUSING COMPLEX TARGETING TRESPASSERS AND DRUGS. SAW DEFENDANT RIDING BICYCLE IN AN AREA KNOWN FOR DRUGS. SIGNS FOR NO TRESPASS WERE THERE. DETECTIVE APPROACHED AND DEFENDANT BEGAN TO RIDE AWAY. CHASED HIM AND GRABBED HIS ARM AND ASKED HIM WHAT HE WAS DOING. DEFENDANT ANSWERED NOTHING. ARRESTED FOR TRESPASSING. INCIDENT SEARCH FOUND COCAINE

NO GOOD
THERE WAS NOTHING TO SUGGEST DEFENDANT WAS TRESPASSING
THERE WERE ESTABLISHED PROCEDURES FOR TRESPASSERS WHICH WERE NOT FOLLOWED

THEY WERE INSTRUCTED TO ASK HIS PURPOSE AND FOLLOW UP BY CALLING RESIDENTS

THERE WAS NO R.A.S. TO STOP
NO PC TO ARRERST

HE PREVIOUSLY HAD VALID REASONS FOR BEING THERE

FLIGHT ALONE DOES NOT CREATE REASONABLE SUSPICION TO STOP

SUPREME COURT OVERTURNED ISSUE ON ARRESTING FOR SUMMONS
OF DP AND PDP. STILL ENTITLED TO ARREST

ADDED TO COURT RULE 3:4-1A(1) " IN THE EXERCISE OF HIS DISCRETION, OFFICER MAY ISSUE SUMMONS IN LIEU OF TAKING SUSPECT DIRECTLY TO JAIL.

VIRGINIA V HICKS
2003

QUESTION IS WHETHER A PUBLIC HOUSING TRESSPASS BAN VIOLATES THE 1ST AMENDMENT

NO

NEITHER THE BASIS FOR THE BARMENT SANCTION (THE PRIOR TRESPASS) OR

ITS PURPOSE (PREVENTING FUTURE TRESPASS) HAS ANYTHING TO DO WITH THE 1ST AMENDMENT

HIS ENTRY IN VIOLATION OF NOTICE BARMENT RULE, NOT HIS SPEECH FOR WHICH HE IS PUNISHED AS A TRESPASSER

STATE V BATES
1985

? HOW DO THE NJ COURT ANALYSE PROBABLE CAUSE

BY EXAMINING THE TOTALITY OF THE FACTS KNOWN TO THE POLICE WHEN THEY ARREST THE SUSPECT

LESS THAN PROVE TO CONVICT BUT MORE THAN RAW UNSUPPORTED SUSPICION

PROBABLE CAUSE IS A" PRACTICAL NON-TECHNICAL CONCEPT "THAT HAS BEEN DESIGNED TO AFFORD THE BEST COMPROMISE

THE COURT WILL REQUIRE NO MORE THAN A WELL GROUNDED SUSPICION OR BELIEF THAT;

AN OFFENSE IS TAKING PLACE OR HAS TAKEN PLACE AND
THE SUSPECT IS OR WAS A PARTY TO IT

STATE V FORD
1995

COURT RE-AFFIRMED THAT WHERE POLICE ARE COOPERATION IN THE SAME INVESTIGATION, THE KNOWLEDGE BY ONE IS PRESUMED SHARED BY ALL

WHITELY V WARDEN
1971

POLICE CALLED UPON TO ASSIST OTHER OFFICERS IN EFFECTING AN ARREST ARE ENTITLED TO ASSUME THAT THE OFFICERS REQUESTING ASSISTANCE HAD THE REQUISITE PROBABLE CAUSE

STATE V SHAWN SMITH
1998
STATE V SHAWN SMITH
1998

? IS THE STANDARD OF PROBABLE CAUSE FOR AN ARREST FUNCTIONALLY DIFFERENT FROM THE STANDARD OF PROBABLE CAUSE FOR A SEARCH

? IS THE STANDARD OF PROBABLE CAUSE FOR AN ARREST FUNCTIONALLY DIFFERENT FROM THE STANDARD OF PROBABLE CAUSE FOR A SEARCH

NO IT IS THE EQUVILANT

STATE V SHAWN SMITH
1998

? IS THE STANDARD OF PROBABLE CAUSE FOR AN ARREST FUNCTIONALLY DIFFERENT FROM THE STANDARD OF PROBABLE CAUSE FOR A SEARCH

NO IT IS THE EQUVILANT



C.I. ADVISES DETECTIVES OF DRUG DEALING. C.I. HAS DONE 1 JOB IN THE PAST FOR COP. COPS RESPOND AND SEES PARTY IN LOCATION FITTING DISCRIPTION. THEY DO NOT VERIFY INFORMANTS TIP OF CRIMINALITY. THEY WALK UP TO HIM AND SEARCH HIM. THEY FIND A KEY. GET CONSENT OF OWNER OF APARTMENT OVER PHONE AND FIND CRACK IN FRIG.

NO GOOD

TWO FACTORS WHICH GENERALLY CONSIDERED HIGHLY RELAVENT
INFORMANTS VERACITY ( PAST INSTANCES )
HIS BASIS OF KNOWLEDGE ( WAS INFORMATION OBTAINED IN A RELIABLE WAY )

AN OFFICERS EXPERIENCE IS ONLY USEFUL IN ESTABLISHING PROBABLE CAUSE IF THE OFFICER USES THE EXPERIENCE TO INFER THAT THE SUSPECT IS ENGAGED IN CRIMINAL ACTIVITY

THE TIP AND THE COORBORATION FELL SHORT OF ESTABLISHING PROBABLE CAUSE, THEREFORE THE SEIZURE OF KEYS WERE UNLAWFUL

THE COURT STATED A FEW PAST INSTANCES OF RELIABILITY DO NOT CONCLUSIVELY ESTABLISH RELIABILITY

POLICE COORBORATED ONLY DISCRIPTION AND LOCATION
THE CONSENT GIVEN FOR THE APARTMENT WAS SO HEAVENLY INFLUENCED BY THE UNLAWFUL SEIZURE OF THE KEYS, THAT HER PROVISION OF CONSENT COULD NOT BE CONSIDERED AN INDEPENDENT INTERVENING CIRCUMSTANCES

STATE V SIBILIA
2000

? SHOULD AN UNNAMED CITIZEN INFORMANT BE TREATED DIFFERENTLY FROM AN ANONYMOUS INFORMANT

YES

STATE V SIBILIA
2000

? SHOULD AN UNNAMED CITIZEN INFORMANT BE TREATED DIFFERENTLY FROM AN ANONYMOUS INFORMANT

YES

IT IS CLEAR THAT ACTUAL NAME OF A CITIZEN WITNESS IS NOT ALWAYS A SINE QUA NON - WITHOUT WHICH NOT
TO LEGITIMATE POLICE ACTION
TRUSTWORTHNESS AND RELIABILITY MAY BE FOUND


OFFICER IN OFF DUTY UNIFORM DETAIL. AT METHADONE CLINIC, 3 PATENTS ADVISED OFFICER WHITE MALE OUTSIDE TRYING TO BUY METHADONE. KNEW EACH PATENT FROM CLINIC BUT DID NOT KNOW THEIR NAMES. SHE POINTED OUT DEFENDANT WHICH FIT DISCRIPTION OF OTHER PATIENTS. HE WAS NERVIOUS AND SHAKEY AND DENIED TRYING TO PURCHASE DRUG. OFFICER WAS GOING TO PAT DOWN FOR OWN SAFETY AND FOUND METHADONE

GOOD

ACTIONS WERE CONSTITUTIONAL BASED ON RELIABLE INFORMATION SUPPLIED BY CITIZEN INFORMER

THAT INFORMATION CONSTITUTED PROBABLE CAUSE TO ARREST.

THAT INFORMATION AND IDENTIFICATION, COMBINED WITH THE STATEMENTS OF 2 OTHER PATIENTS, OFFICERS KNOWLEDGE OF METHADONE SALES IN THE AREA, DEFENDANTS LOCATION AND NERVOUSNESS, COMBINED TO PROVIDE PROBABLE CAUSE TO ARREST DEFENDANT FOR THE ATTEMPTING TO PURCHASE CDS

THAT PROBABLE CAUSE JUSTIFIED THE PAT DOWN AND ARREST OF DEFENDANT

STATE V MOORE
2004

AT WHAT POINT WAS PROBABLE CAUSE ESTABLISHED

NARC OFFICERS UNDERCOVER IN UNMARKED CAR IN HIGH CRIME AREA. OBSERVED SIX PEOPLE IN VACANT LOT. FROM A BLOCK AWAY CONDUCTED SURVEILLANCE USING BINOCULARS, OBSERVED 2 MEN WALK BEHIND BAR. OBSERVED THE 2 EXCHANGE MONEY FOR A SMALL ITEM. BELIEVED HE WITNESSED DRUG TRANSACTION HE MOVED IN. DEFENDANT PLACED HAND IN POCKET AND WALKED AWAY. DET. APPROACHED HIM, INFORMED HIM WHAT HE OBSERVED AND GRABBED HIS RIGHT ARM. HE REMOVED HIS HAND FROM HIS POCKET TO REVEAL 2 BAGS OF COKE.

AT THE POINT WHERE THEY OBSERVED THE EXCHANGE

STATE V PAGAN
2005

EXPERIENCED NARC IN HIGH DRUG AREA OBSERVED KNOWN DRUG VIOLATOR EXCHANGE PAPER MONEY FOR UNKNOWN OBJECT. OFFICER APPROACHED ON FOOT, TAPPED DEFENDANT ON SHOULDER, HE TURNED AROUND AND ALLOWED NARC TO SEE TWO BALLOONS IN HIS POCKET. BALLOONS ARE KNOWN TO STORE HEROIN

GOOD

STATE V PINEIRO
2004

OFFICER WAS ON PATROL IN HIGH CRIME AREA, OBSERVED DEFENDANT AND ANOTHER ON CORNER. RECOGNIZED FROM PREVIOUS ARRESTS FOR DRUGS. ONE DEFENDANT GAVE THE OTHER PACK OF CIGARETTES. OFFICERS EXPERIENCE WITH PACKS HAVING HEROIN IN THEM. CALLED OUT AND DETAINED BOTH. ASK FOR THE PACK AND FOUND HEROIN.

NO GOOD

FAILED TO ESTABLISH PROBABLE CAUSE TO ARREST OR SEARCH, RATHER ONLY ESTABLISHED REASONABLE SUSPICION FOR A STOP AND INVESTIGATION

OFFICER SAW NO OBSERVATION OF CURRENCY

DIDN'T EVEN INCLUDE THE NUMBER OF TIMES HE ENCOUNTERED CIG PACKS CARRYING DRUGS

DAVENPECK V ALFORD
2004

IS ARREST LAWFUL WHEN THE OFFENSE WHICH THERE IS P.C. TO ARREST IS NOT CLOSELY RELATED TO THE OFFENSE SITED AT TIME OF ARREST

YES

DISABLED VEHICLE ON THE SIDE OF THE ROAD. DEFENDANT STOPPED HIS VEHICLE TO HELP. POLICE OBSERVED AND PULLED OVER. OBSERVED ONE OF THE VEHICLES WITH WIG WAG HEADLIGHTS. WHEN POLICE ARRIVED, DEFENDANT HURRIED TO CAR AND LEFT. DISABLED MAN ASKED IF DEFENDANT WAS A COP. OFFICER WAS CONCERNED HE WAS IMPERSONATING POLICE AND RADIOED TO HAVE CAR PULLED OVER. WHEN CAR WAS PULLED OVER, HANDCUFFS AND POLICE SCANNER FOUND IN THE CAR. WHEN ASKING QUESTIONS THE DEFENDANT WAS EVASIVE. HE SAID FLASHING HEADLIGHTS WERE FROM ALARM SYSTEM. OFFICER THEN NOTICED A TAPE RECORDER RECORDING AND PLACED DEFENDANT UNDER ARREST FOR VIOLATION OF WASHINGTON STATE PRIVACY ACT. BELIEVING RECORDING HIS CONVERSATION WAS ILLEGAL AND SPOKE TO PROSECUTOR WHO SUGGESTED TO CHARGE WITH OBSTRUCTION AND THE SERGEANT DISAGREED WITH STACKING THE CHARGES. HE WAS CHARGED WITH VIOLATION OF PRIVACY ACT AND UNLAWFUL FLASHING HEADLIGHTS.
BOTH CHARGES WERE DISMISSED IN COURT
DEFENDANT SUED FOR FALSE ARREST.

COURT REASONED THAT AN OFFICERS STATE OF MIND IS IRRELEVANT TO THE EXISTANCE OF PROBABLE CAUSE

OFFICERS INITIAL STOP WAS MOTIVATED BY HIS SUSPICION OF DEFENDANT IMPERSONATION POLICE.

IN THE COURSE OF QUESTIONING, OFFICER FELT HIS WAS BEING MISLED

THE OFFICERS SUBJECTIVE REASON FOR MAKING AN ARREST NEED NOT BE THE CRIMINAL OFFENSE AS TO WHICH THE KNOWN FACT PROVIDE PROBABLE CAUSE.

Ch 1.3 ARREST WITH WARRANT
ARREST WITH WARRANT

WHEN AN ARREST WARRANT ISSUES, IT DEMINSTRATES THAT A DETACHED AND NUETRAL MAGISTRATE OR JUDGE HAS DETERMINED THAT PROBABLE CAUSE EXISTS TO BELIEVE THAT THE SUBJECT OF THE WARRANT HAS COMMITTED AN OFFENSE

ONCE ARMED WITH AN ARREST WARRANT, A POLICE OFFICER HAS THE RIGHT TO EXECUTE THE WARRANT BY ARRESTING A DEFENDANT AT HIS OR HER HOME

WARRANT MAY BE EXECUTED ANY PLACE WITHIN THE STATE

MARYLAND V BUIE
1990

? DOES THE 4TH AMENDMENT PERMIT A LIMITED PROTECTIVE SWEEP IN CONJUNCTION WITH AN IN HOME ARREST WHEN OFFICERS HAVE R.A.S. THAT THE AREA SWEPT HARBORS PERSON WHO MAY POSE DANGER TO OFFICERS

YES

OFFICERS MAY CONDUCT SWEEP OF THE PREMISES SO LONG AS THE OFFICERS POSSESS R.A.S. WHICH TAKEN TOGETHER WITH THE RATIONAL INFERENCE FROM THOSE FACTS GIVE RISE TO REASONABLE SUSPICION THAT AREA HARBORS PERSON POSING A DANGER

IT IS NOT AUTOMATIC AND IT IS NOT TOP TO BOTTOM

IN ADDITION AND WITHOUT PC, OR RAS AND AS INCIDENT TO THE ARREST, OFFICERS MAY LOOK IN CLOSETS AND OTHER AREAS IMMEDIATELY AJOINING TO THE PLACE OF ARREST FROM WHICH AN ATTACK CAN BE LAUNCHED WHICH IS AUTOMATIC


OFFICERS EXECUTE A WARRANT FOR DEFENDANT AT HIS HOME; AS SOON AS THEY ENTERED THEY FANNED OUT. OFFICER SHOUTED TWICE INTO THE BASEMENT. HE ANSWERED, OFFICER DEMANDED TO SEE HANDS. HE WAS ARRESTED AND SEARCHED IN BASEMENT. DET. ENTERED BASEMENT IN CASE SOMEONE WAS DOWN THERE. WHILE DOWN THERE DISCOVERED RED SUIT WHICH FIT CLOTHS OF ROBBER.

CURSERY INSPECTION OF THOSE PLACES WHERE A PERSON CAN BE FOUND

BEYOND THAT THERE MUST BE R.A.S. THAT THE AREA SWEPT HARBORS AN INDIVIDUAL POSING A DANGER TO OFFICERS ON ARREST SCENE

SWEEP IS TO LAST NO LONGER THAN IT TAKES TO DISPEL THE SUSPICION OF DANGER AND NO LONGER THAN IT TAKES TO COMPLETE THE ARREST

IN THE ROOM WHERE THE ARREST TOOK PLACE IT IS AUTOMATIC AND MAY BE CONDUCTED IN THE ABSENCE OF ANY R.A.S.

STATE V BOBO
1987

? WHAT IS DISPOSITION OF ARREST AND SEIZURE OF EVIDENCE FOUND IN PLAIN VIEW WHERE THE OFFICERS EFFECT ARREST WITH WARRANT WHEN ISSUED WITHOUT COURT CLERK ADMINISTERING THE OATH TO COMPLAINANT

THE ARREST IS INVALID AND EVIDENCE INADMISSABLE

COMPLAINTANT ARRIVED TO SIGN A COMPLAINT AGAINST DEFENDANT. WARRANT WAS PREPARED CHARGING SIMPLE ASSAULT. OFFICER BROUGHT WARRANT TO HOME OF DEPUTY CLERK. OFFICERS EXECUTED WARRANT AND FOUND MARIJUANA

STATE V BOBO
1987

? WHAT IS DISPOSITION OF ARREST AND SEIZURE OF EVIDENCE FOUND IN PLAIN VIEW WHERE THE OFFICERS EFFECT ARREST WITH WARRANT WHEN ISSUED WITHOUT COURT CLERK ADMINISTERING THE OATH TO COMPLAINANT

THE ARREST IS INVALID AND EVIDENCE INADMISSABLE

COMPLAINTANT ARRIVED TO SIGN A COMPLAINT AGAINST DEFENDANT. WARRANT WAS PREPARED CHARGING SIMPLE ASSAULT. OFFICER BROUGHT WARRANT TO HOME OF DEPUTY CLERK. OFFICERS EXECUTED WARRANT AND FOUND MARIJUANA

STATE V EGLES
1998

THE COURT INSTRUCTED THAT THE APPROPRIATE REMEDY FOR AN IMPROPER ARREST IS SUPPRESSION OF ANY EVIDENCE THAT MAY BE SEIZED IN CONNECTION WITH THAT ARREST

AN ILLEGAL ARREST ONLY TAINTS THE EVIDENCE THAT IS THE PRODUCT OF THAT ARREST. IT DOES NOT NECESSARILY TAINT THE ENTIRE PROSECUTION

STATE V MOORE
1992

? WHAT IS THE DISPOSITION OF THE ARREST AND SEIZURE OF EVIDENCE WHERE OFFICER EFFECTS ARREST ON WARRANT, WHICH UNKNOWN TO HIM WAS VACATED 27 DAYS EARLIER

ARREST INVALID AND EVIDENCE INADMISSABLE EVEN THOUGH THE ARRESTING OFFICER ACTED IN GOOD FAITH

DEFENDANT ARRESTED ON WARRANT FOR FAILURE TO APPEAR. SEARCH INCIDENT REVEALED COCAINE. AFTER OFFICER LEARNED HE POSTED HIS BAIL 42 DAYS EARLIER. IT WAS VACATED 27 DAYS BEFORE HER ARREST AND RECORDS WERE NEVER UPDATED

NO GOOD

THE COURT RECOGNIZED THAT SOME DELAY IN UPDATING INFORMATION MUST BE ALLOWED. THE COURT HAS UPHELD A 4 DAY DELAY

THE STATE MUST CARRY THE BURDEN TO ESTABLISH JUSTIFICATION FOR ANY ADMINISTRATIVE DELAY IN THEIR UPDATE

THE COURT DID NOT TURN ON WHO WAS AT FAULT

Ch 1.2 Arrest/Prob Cause
STATE OF NEW JERSEY v. BASIL
Supreme Court of New Jersey
202 N.J. 570 (2010)
QUESTION: In the circumstances below, did the police have probable cause to arrest defendant, Eugene Basil?
CIRCUMSTANCES: In February, at approximately 1:00 a.m., Jersey City Officers Anthony Ruocco and William Sullivan, as well as other police units, responded to an anonymous 9-1-1 report of a "man with a shotgun" at 199 Bidwell Avenue. Upon his arrival at that address, Officer Ruocco observed three black males, including defendant, Eugene Basil, in the area. Ruocco was approached by a young woman who told him that she was standing on the corner with a group of people when defendant "pointed a shotgun in her direction," and said, " 'Get off the corner.' She also stated that she saw defendant throw the shotgun underneath a black Cadillac. As the woman spoke to Ruocco, 'she was shaking a little bit' and her 'voice was elevated.' " Id. at 578. At that point, defendant was detained by Officer Ruocco while Officers Sullivan and Chet Mecca recovered the unloaded shotgun from underneath the Cadillac. "Following the young woman's statement and the discovery of the shotgun, defendant was placed in the back of a police car." Id.
"The young woman told Officer Ruocco that she lived in the area but nothing else about herself. She said she did not want to speak with any detectives or become involved in the case 'because she was scared for her safety.' Officer Ruocco did not get her name, address, or telephone number. The young woman just 'left [and] walked away.' " Id.
Officer Ruocco transported defendant to the district police station, where defendant remarked, "What the problem, you guys don't do your job. So I went inside and got my shotgun." Id. at 578-79. At that point, Ruocco formally placed defendant under arrest.

ANSWER: YES. The on-the-scene identification by the "citizen informant and corroborative discovery of the shotgun gave the officers probable cause to arrest defendant." Id. at 576.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. EUGENE BASIL, A/K/A JEAN BASIL, DEFENDANT-RESPONDENT.
SUPREME COURT OF NEW JERSEY
202 NJ 570202 N.J. 570; 998 A2d 472998 A.2d 472; 2010 NJ LEXIS 6572010 N.J. LEXIS 657
A-34 September Term 2009
February 23, 2010, Argued
July 20, 2010, Decided
Editorial Information: Prior History

CASE SUMMARY
PROCEDURAL POSTURE: The Court granted the State's petition for certification, allowing it to challenge the judgment of the Superior Court, Appellate Division (New Jersey), which reversed defendant's conviction for third-degree knowingly possessing a shotgun without first having obtained a firearm's purchaser identification card, in violation of N.J.S.A. § 2C:39-5(c)(1).Defendant's conviction for possession of a shotgun was reversed and he was awarded a new trial because a non-appearing witness's testimonial hearsay statement, admitted via the testimony of two officers, identifying defendant as the man who pointed a gun at her was inadmissible under the Confrontation Clause, U.S. Const. amend. VI.

OVERVIEW: The case involved two distinct constitutional issues, both arising from statements made by a young woman who refused to identify herself to police officers who were dispatched to the scene on the report of a man with a gun. The young woman identified defendant as the person who earlier had pointed a shotgun at her. The trial court determined that the woman's statement was admissible under the excited-utterance exception to the hearsay rule. The Appellate Division reversed, finding that the warrantless detention of defendant near his home was equivalent to an arrest and was not supported by probable cause and that the woman's hearsay statement to the officers was introduced in violation of the Confrontation Clause, U.S. Const. amend. VI. The court held that the on-scene identification by a citizen informant and corroborative discovery of the weapon gave officers probable cause to arrest defendant and, therefore, his volunteered statement to police should not have been suppressed. However, the court held that the non-appearing woman's testimonial hearsay statement was inadmissible under the Confrontation Clause.

OUTCOME: The Court reversed defendant's conviction and remanded the case to the trial court for a new trial.

Ch 1.4. Arrest without warrant.
THE CONSTITUTION PERMITS AN OFFICER TO ARREST A SUSPECT IN ANY PUBLIC PLACE WITHOUT A WARRANT IF

THERE IS PROBABLE CAUSE TO BELIEVE SUSPECT HAS COMMITTED A CRIMINAL OFFENSE

ARREST WITHOUT WARRANT

THE 4TH AMENDMENT PERMITS SUCH WARRANTLESS CRIMINAL ARRESTS

EVEN THOUGH THE OFFICER HAS SUFFICIENT TIME TO OBTAIN THE WARRANT

IT IS NOT A CONSTITUTIONAL IMPERATIVE FOR OFFICERS TO SECURE ARREST WARRANTS WHEN PRACTICABLE

AS LONG AS THE ARREST IS SUPPORTED BY PROBABLE CAUSE

NEW JERSEY ALSO SANCTIONS WARRANTLESS ARRESTS BASED ON

PROBABLE CAUSE

ADDITIONALLY, WITH RESPECT TO LOWER LEVEL DISORDERLY OFFENSES, STATE STATUTE PROVIDES;

WHENEVER AN OFFENSE IS COMMITTED IN OFFICERS PRESENCE, HE SHALL AND ANY OTHER PERSON MAY APPREHEND WITHOUT WARRANT AND TAKE HIM BEFORE ANY MAGISTRATE OF THE COUNTY WHERE APPREHENDED

STATE V DOYLE
1964

WHEN OFFICER HAS PROBABLE CAUSE TO ARREST AN INDIVIDUAL FOR A CRIMINAL OFFENSE (PUNISHABLE TO MORE THAN 1 YEAR IN STATE JAIL) MAY HE ARREST WITHOUT OBTAINING WARRANT

YES

HISTORICALLY, OFFICERS HAVE THE AUTHORITY TO ARREST WHEN THE OFFICER HAS A REASONABLE BASIS TO BELIEVE A FELONY HAS BEEN COMMITTED

REASONABLE BASIS IS ANOTHER WAY OF SAYING PROBABLE CAUSE

ABOVE INCLUDES 4TH DEGREE NOT DP OFFENSES
EVEN THOUGH IT HAS NOT BEEN COMMITED IN THE OFFICERS PRESENCE

AN OFFICERS DUTY TO ARREST

STATE V HINDS
1996

A POLICE OFFICER, EVEN AN OFF DUTY OFFICER, HAS A DUTY NOT ONLY TO REPORT A CRIME OBSERVED BY THE OFFICER BUT ALSO A DUTY TO ARREST ANY PERSON COMMITING A CRIME

DUNN V MOUNTAINSIDE
(1997)

THE COURT ALSO HELD THAT A POLICE OFFICER WHO COMMITS A CRIME HAS A DUTY TO REPORT IT AND TURN HIMSELF IN

FAILURE TO DO SO SUBJECTS THE OFFICER TO A CHARGE OF 2ND DEGREE OFFICIAL MISCONDUCT.

STATE V MACUK
1970

MAY OFFICER EFFECT A VALID ARREST WITHOUT A WARRANT WHEN THE OFFENSE IS NOT COMMITTED IN HIS PRESENSE OR PUNISHABLE BY 1 YEAR IN JAIL

NO

OFFENSE IS IN OFFICERS PRESENSE WHEN HE GAINS KNOWLEDGE OF THE EVENT BY ONE OF HIS SENSES. THIS INCLUDES ADMISSION

THE IN PRESENCE REQUIREMENT

STATE V MORSE
1969

A NON INDICTABLE OFFENSE MUST OCCUR IN THE OFFICERS PRESENCE BEFORE HE MAY ARREST WITHOU A WARRANT

THE WORD PRESENCE SUMS UP THE REQUIREMENT THAT THE OFFICER KNEW OF THE EVENT BY THE USE OF HIS SENSES

IN THE CASE OF A CRIME OFFICER MAY ARREST UPON PROBABLE CAUSE SUPPLIED BY BY OTHERS

HE CANNOT ARREST FOR A LOWER OFFENSE UNLESS HE KNOWS OF IT HIMSELF

DEFENDANTS ADMISSION WOULD SATIFY REQUIREMENT

LEGISLATIVE EXCEPTIONS TO THE IN PRESENSE REQUIREMENT

BY STATUTE OFFICER MAY EFFECT THE ARREST WITHOUT A WARRANT OF PERSON IF HE HAS PROBABLE CAUSE A DP OR PDP WAS COMMITTED EVEN THOUGH NOT IN HIS PRESENSE FOR THE FOLLOWING CRIMES;

DRUNK DRIVING
SHOPLIFTING
THEFT OF LIBRARY MATERIALS
DOMESTIC VIOLENCE
CAMCORDER PRIVACY OF MOTION PICTURES

LEGISLATIVE EXCEPTIONS TO THE IN PRESENSE REQUIREMENT

BY STATUTE OFFICER MAY EFFECT THE ARREST WITHOUT A WARRANT OF PERSON IF HE HAS PROBABLE CAUSE A DP OR PDP WAS COMMITTED EVEN THOUGH NOT IN HIS PRESENSE FOR THE FOLLOWING CRIMES;

DRUNK DRIVING
SHOPLIFTING
THEFT OF LIBRARY MATERIALS
DOMESTIC VIOLENCE
CAMCORDER PRIVACY OF MOTION PICTURES

2C:21-21G

PROVIDES ANY OFFICER MAY ARREST WITHOUT WARRANT ANY PERSON HE HAS PROBABLE CAUSE FOR BELIEVING HAS OPERATED AUDIOVISUAL RECORDING FUNCTION OF A DEVICE IN VIOLATION OF THIS SECTION.

STATE V VONDERFECHT
1995

INCLUDES PETTY DISORDERLY OFFENSES AS WELL.

ARRESTING POWER IS NOT LIMITED TO DISORDERLY PERSONS OFFENSE BUT RATHER ANYONE WHO IS DISORDERLY UPON VIEW

STATE V HURTADO
1987

MAY AN OFFICER EFFECT A VALID ARREST OF AN INDIVIDUAL, WITHOUT A WARRANT, A VIOLATION OF A T.O. WHICH OCCURS IN OFFICERS PRESENCE BUT DOES NOT CONSTITUTE A BREECH OF THE PEACE

NO

THROWING LITTER ON STREET DOES NOT CONSTITUTE A BREECH OF THE PEACE


THERE ATE TWO PRECONDITIONS TO EXERCISE THE POWER OF ARREST UNDER THIS SECTION

OFFENSE OCCUR IN OFFICERS PRESENCE
MUST BE DISORDERLY PERSON OR BREECH OF THE PEACE

NOT BUYING BEACH BADGES DOES NOT CONSTITUTE BREAH OF THE PEACE

BREACH OF THE PEACE REQUIREMENT IS STATUTORY

BREACH OF THE PEACE - ONE WHICH DISRUPTS THE TRANQUILITY OF THE COMMUNITY
AT LEAST THE THREAT OF VIOLENCE

STATE POLICE STATUTE CONTAINS NO BREACH OF THE PEACE REQUIREMENT

IT MAY BE CONCLUDED THAT SOME OFFENSES, SUCH AS

ILLEGAL PARKING
JAYWALKING
LITTERING

DO NOT POSE A SIGNIFICANT GRAVE THREAT TO THE PUBLIC WELFARE

ATWATER V CITY OF LAGO VISTA
2001

OK TO ARREST FOR NO SEATBELT

THE BREECH OF THE PEACE REQUIREMENT IS STATUTORY IN DEMENSION.

THE UNITED STATE SUPREME COURT HELD THE 4TH AMENDMENT DOES NOT PROHIBIT AN OFFICER FROM MAKING AN ARREST FOR A MINOR OFFENSE NOT AMOUNTING TO BREECH OF THE PEACE

NEW JERSEY POLICE OFFICERS MUST FOLLOW 40A: 14-152 AND SATISFY THE BREECH OF THE PEACE REQUIREMENT

WHILE ACTUAL VIOLENCE IS NOT AN ESSENTIAL ELEMENT, THE ATWATER COURT SUGGESTED THAT THE TERM BREECH OF THE PEACE ENTAIL AT LEAST A THREAT OF VIOLENCE

MARION V BOROUGH OF MANASQUAN
(1989)

VIOLATION OF AN ORDINANCE REQUIRING THE PURCHASE OF A BEACH BADGE NOT TO CONSTITUTE A BREACH OF THE PEACE

NJ STATE OFFICERS ALSO DO NOT NEED TO FOLLOW THE BREACH OF THE PEACE STANDARD

THEY ARE GOVERNED BY TITLE 53 NOT 40A

Ch 1.5 1.5. Entry of a dwelling to effect an arrest
PAYTON V NEW YORK
1980

MAY OFFICER MAKE A WARRANTLESS, NONCONSENSUAL ENTRY INTO A SUSPECTS HOME IN ORDER TO MAKE A ROUTINE FELONY ARREST

NO

ABSENT EXIGENT CIRCUMSTANCES, OFFICER MAY NOT MAKE A WARRANTLESS ENTRY WITHOUT CONSENT EVEN THOUGH PROBABLE CAUSE EXISTS TO BELIEVE HE COMMITTED A FELONY

EXIGENT CIRCUMSTANCES ARE REAL EMERGENCIES OR DANGEROUS SITUATIONS WHICH NECESSITATE SWIFT AND IMMEDIATE OFFICIAL ACTION

THE COURT HOLDS THAT SUCH ENTRIES ARE NOT PERMITTED, THE 4TH AMENDMENT DRAWS A FIRM LINE AT THE ENTRANCE OF THE DOORWAY

ABSENT EXIGENCY THAT THRESHOLD MAY NOT BE CROSSED WITHOUT A WARRANT

IF JUDGE ISSUES A WARRANT, IT IS CONSTITUTIONALLY REASONABLE TO REQUIRE THE SUSPECT TO OPEN HIS DOOR

FOR 4TH AMENDMENT PURPOSES, AN ARREST WARRANT FOUNDED ON PROBABLE CAUSE IMPLICITLY CARRIES WITH IT A LIMITED AUTHORITY TO ENTER A DWELLING IN WHICH THE SUSPECT LIVES WHEN THERE IS REASON TO BELIEVE THE SUSPECT IS WITHIN

THE REQUIREMENT OF EXIGENT CIRCUMSTANCES IN ADDITION TO PROBABLE CAUSE

KIRK V LOUSIANA
2002

OFFICERS SURVEILLANCE ON HOME OF DEFENDANT BASED ON ANONYMOUS TIP OF DRUG SALES. AFTER WITNESING PURCHASES AND ALLOWING THE BUYERS TO LEAVE, THE OFFICER STOPPED ONE OF THE BUYERS. OFFICERS KNOCKED ON THE DOOR, ENTERED AND ARRESTED DEFENDANT. SEARCH INCIDENT UNCOVERED COKE IN UNDERWEAR.

FINDING ENTRY INVALID, THE COURT SAID POLICE HAD NEITHER ARREST NOR SEARCH WARRANT. OFFICER TESTIFIED REASON WAS FEAR EVIDENCE WOULD BE DESTROYED.

NO GOOD

PAYTON VIOLATION AND EXCLUSIONARY RULE

STATE V HARRIS
1990

WHEN VIOLATING THE PAYTON RULE, ONLY THAT EVIDENCE WHICH IS OBTAINED INSIDE THE HOUSE IS OPEN FOR SUPPRESSION

SO LONG AS POLICE HAVE THE REQUISITE PROBABLE CAUSE FOR THE SUSPECTS ARREST

ANY PHYSICAL EVIDENCE OR STATEMENTS VALIDLY OBTAINED AFTER THE ARREST AND OUTSIDE THE HOME WILL NOT BE SUPPRESSED

THERE COULD BE NO VALID CLAIM HERE THAT HARRIS IS IMMUNE FROM PROSECUTION BECAUSE HIS PERSON WAS THE FRUIT OF AN ILLEGAL ARREST

WILSON V LAYNE
1999

U.S. COURT HELD IT IS A VIOLATION OF THE 4TH AMENDMENT FOR POLICE TO BRING MEMBERS OF THE MEDIA OR OTHER THIRD PARTIES INTO A HOME DURING THE EXECUTION OF A WARRANT WHEN THE PRESENSE OF THE THIRD PARTY IN THE HOME WAS NOT ASSISTING IN THE EXECUTION OF WARRANT

STATE V HENRY
1993

ARE BUY BUST OPERATIONS CONSTITUTIONALLY UNREASONABLE

NO


SO LONG AS;

INITIAL ENTRY IS CONSENSUAL

PROBABLE CAUSE FOR ARREST ARISES OUT OF THAT ENTRY

SECOND ENTRY TO ARREST IS NOT UNDULY DELAYED

LEGITIMITE GROUNDS EXIST TO DELAY ARREST ( WAIT FOR BACKUP OFFICERS

STATE V HENRY
1993

ARE BUY BUST OPERATIONS CONSTITUTIONALLY UNREASONABLE

NO


SO LONG AS;

INITIAL ENTRY IS CONSENSUAL

PROBABLE CAUSE FOR ARREST ARISES OUT OF THAT ENTRY

SECOND ENTRY TO ARREST IS NOT UNDULY DELAYED

LEGITIMITE GROUNDS EXIST TO DELAY ARREST ( WAIT FOR BACKUP OFFICERS




ONCE AN OFFICER DEVELOPS PROBABLE CAUSE FOR AN ARREST, MUST THE OFFICER SECURE ARREST WARRANT AS SOON AS REASONABLY PRACTICLE

NO

AS LONG AS THE ARREST IS SUPPORTED BY PROBABLE CAUSE

POLICE RECEIVED INFORMATION COKE BEING SOLD IN APARTMENT. WENT TO ATTEMPT TO MAKE UNDERCOVER BUY. HE KNOCKED. SOMEONE ANSWERED AND HE SAID "LET ME GET 2 "SHE SAID YOU HAVE TO SEE MY SON AND HE ENTERED THE APARTMENT AND MADE THE TRANSACTION. THERE WERE SEVERAL CHILDREN IN THE ROOM. AFTER HE LEFT THEY MOVED IN WITHIN 20 MINUTES. POLICE KNOCKED, THEY ANSWERED POLICE IDENTIFIED THEMSELVES AND HE FLED IN BEDROOM. POLICE GAVE CHASE

STATE V HENRY
1993

ARE BUY BUST OPERATIONS CONSTITUTIONALLY UNREASONABLE

NO


SO LONG AS;

INITIAL ENTRY IS CONSENSUAL

PROBABLE CAUSE FOR ARREST ARISES OUT OF THAT ENTRY

SECOND ENTRY TO ARREST IS NOT UNDULY DELAYED

LEGITIMITE GROUNDS EXIST TO DELAY ARREST ( WAIT FOR BACKUP OFFICERS




ONCE AN OFFICER DEVELOPS PROBABLE CAUSE FOR AN ARREST, MUST THE OFFICER SECURE ARREST WARRANT AS SOON AS REASONABLY PRACTICLE

NO

AS LONG AS THE ARREST IS SUPPORTED BY PROBABLE CAUSE

POLICE RECEIVED INFORMATION COKE BEING SOLD IN APARTMENT. WENT TO ATTEMPT TO MAKE UNDERCOVER BUY. HE KNOCKED. SOMEONE ANSWERED AND HE SAID "LET ME GET 2 "SHE SAID YOU HAVE TO SEE MY SON AND HE ENTERED THE APARTMENT AND MADE THE TRANSACTION. THERE WERE SEVERAL CHILDREN IN THE ROOM. AFTER HE LEFT THEY MOVED IN WITHIN 20 MINUTES. POLICE KNOCKED, THEY ANSWERED POLICE IDENTIFIED THEMSELVES AND HE FLED IN BEDROOM. POLICE GAVE CHASE

GOOD

THE COURT STATED A SUBSTAINTIAL DELAY MAY UNDERMINE THE VALIDITY OF THE SECOND ENTRY

TIME BETWEEN 1ST AND 2ND ENTRY WAS ABOUT 15 TO 20 MINUTES

THE DELAY IN THIS CASE WAS JUSTIFIED TO ENSURE SAFETY OF DETECTIVE

IT IS ALSO NOTEWORTHLY THAT BACKUP DIDN'T COME WITH A BATTERING RAM OR FORCED ENTRY BUT WITH A KNOCK

THE COURT CAUTIONED THAT IN SOME CASES A SUBSTAINTIAL DELAY BETWEEN THE BUY AND THE ARREST MAY UNDERMINE THE VALIDITY OF CERTAIN POLICE ACTIONS THAT DEPEND ON FACTS GIVING RISE TO PROBABLE CAUSE

THE COURT HELD THAT WHEN A HOME IS CONVERTED INTO A COMMERCIAL CENTER TO WHICH OUTSIDERS ARE INVITED FOR PURPOSES OF TRANSACTING UNLAWFUL BUSINESS, OCCUPANTS WAIVE THEIR RIGHTS TO PRIVACY WHEN THEY INVITE THE PUBLIC

ENTITLED TO NO GREATER SANCTITY THEN IF IT WERE CARRIED ON IN A STORE OR ON THE STREET

ONE COURT HAS CALLED THIS CONSENT ONCED REMOVED WHICH APPLIES ONLY WHERE A POLICE OFFICER OR AN INFORMANT

ENTERED THE TARGET PREMISES AT THE EXPRESS INVITATIONOF SOMEONE WITH AUTHORITY TO CONSENT

PROBABLE CAUSE EXISTED TO ARREST OR SEARCH

OFFICER OR INFORMANT IMMEDIATELY SUMMONED HELP FROM OTHER OFFICERS

STATE V PENALBER
2006
APPELLATE DIVISION

TWO DETECTIVES WENT TO APARTMENT TO MAKE UNDERCOVER BUY OF COCAINE. 2 UNITS ONE ON EACH FLOOR. THEY LOOKED THROUGH THE GLASS DOOR AND SAW A MAN ENGAGED IN DRUG TRANSACTION. THE DETECTIVE THEN LEFT AND PURCHASED COCAINE. HE THEN RETURNED TO POLICE STATION. THEY DISCUSED AND DECIDED TO GO BACK AND MAKE ARREST. 6 OFFICERS RETURNED 30 TO 45 MINUTES LATER. THEY WALKED THROUGH THE UNLOCKED DOOR AND UP THE STAIRS. THE DOOR TO THE APARTMENT WAS OPEN AND THEY COULD SEE LUSCANO SITTING IN THE CHAIR. ANOUNCED PRESENCE AND ARRESTED DEFENDANT. FOUND DEFENDANT SITTING ON BED CUTTING COKE. AFTER GAVE CONSENT AND FOUND HERION.

NO GOOD

DOES NOT FIT WITHIN THE CONSENT ONCE REMOVED DOCTRINE AND THE WARRANTLESS ENTRY VIOLATED THE 4TH AMENDMENT

IN ORDER TO JUSTIFY SEPARATE ENTRIES SHOULD OCCUR AS COMPONENTS OF A SINGLE CONTINOUS POLICE ACTION. SHOULD NOT BE INTERRUPTED BY UNDULY PROLONGED DELAY

LONGER TIME PERIOD IN THIS CASE THAN IN HENRY

FURTHERMORE THEY WENT BACK TO THE POLICE STATION TO DISCUSS THE ISSUE

THE COURT ALSO REJECTED THAT THE COMMON HALLWAY WAS NOT A PRIVATE PLACE PROTECTED

THE COURTS HAVE NOT EXPRESSLY DECIDED WHETHER A COMMON HALLWAY IN A 2 UNIT APARTMENT IS WITHIN THE ZONE OF PRIVACY

THE COURT FOUND IT UNNECESSARY TO DECIDE BECAUSE IT DETERMINED THAT THE POLICE ENTRY WAS INVALID EVEN IF THEY WERE IN A PUBLIC PLACE


COURT ALSO REJECTED THE FACT THAT OFFICERS DIDN'T KNOW SUSPECT NAME WHICH IS WHY THEY DID NOT SEEK WARRANT

CAN GIVE DISCRIPTION IN WARRANT

U.S. V SANTANA
1976

MAY A SUSPECT DEFEAT A WARRANTLESS FELONY ARREST WHICH WAS SET IN MOTION AT THE DOORWAY OF HIS HOME BY RETREATING INTO HOME

NO

MAY NOT DEFEAT AN ARREST WHICH HAS BEEN SET IN MOTION IN A PUBLIC PLACE BY ESCAPING TO A PRIVATE PLACE

DEVELOPED PROBABLE CAUSE TO BELIEVE DEFENDANT WAS SELLING DRUGS. AND HE WAS IN POSSESSION OF MARKED MONEY FROM EARLIER BUY. POLICE SAW HER STANDING IN THE DOOR WAY. POLICE SHOUTED AND SHE BEGAN TO RUN IN HER HOUSE. POLICE FOLLOWED HER INTO THE VESTIBULE STRUGGLES AND COKE FALLES TO THE GROUND

GOOD

CONSTITUTION ALLOWS WARRANTLESS ARREST OF PERSON WHERE PROBABLE CAUSE SHE COMMITED FELONY AND IN A PUBLIC PLACE

SHE WAS NOT IN AN AREA WHERE SHE HAD EXPECTATION OF PRIVACY

THIS INVOLVED A TRUE HOT PURSUIT

UNITED STATES V JOHNSON
1980

TRESURY AGENTS WENT TO DEFENDANT HOUSE WITH INFORMATION THAT JOHNSON UNLAWFULLY CASHED TREASURY CHECKS. APPROACHED THE DOORWAY, DREW WEAPONS AND KNOCKED. USING FAKE NAMES DEFENDANT OPENED THE DOOR AND LET THEM IN. IT WAS AT THIS POINT THE COURT DETERMINED HE WAS UNDER ARREST

NO GOOD

VIEW THE OPENING OF THE DOOR AS NOT VOLUNTARY BECAUSE OF THE COERCIVE WAY THEIR WEAPONS SHOWN AND THEIR LYING TO HIM

IT IS THE LOCATION OF THE PERSON ARRESTED THAT DETERMINES WHETHER AN ARREST OCCURS WITHIN THE HOME

DEFENDANT WAS STANDING IN HIS HOUSE AT THE TIME (WITHIN HIS ZONE OF PRIVACY)

HOT PURSUIT ENTRY AFTER POLICE OBSERVATIONS OF SEVERAL DRUG SALES

STATE V JOSEY
1996

THE POLICE SAW THE DEFENDANT SELLING DRUGS, A SERIOUS CRIME, AND THEY HAD AMPLE P.C. TO ARREST HIM.

PURSUING HIM INTO APARTMENT AFTER HEARING FOOTSTEPS OF HIM RUNNING UP THE STAIRS WAS JUSTIFIED TO EFFECT ARREST AND PREVENT DESTRUCTION OF EVIDENCE
HE KNOCKED AND HEARD NOTHING BUT FOOTSTEPS
HE COULD CONCLUDE THE DEFENDANT INTENDED TO DESTROY EVIDENCE BEFORE A WARRANT COULD BE OBTAINED

AFTER DESTRUCTION OF EVIDENCE WAS PREVENTED, THEY BACKED OUT OF THE HOUSE AND OBTAINED AN ARREST WARRANT

WELSH V WISCONSIN
1984


MAY OFFICER CONDUCT A WARRANTLESS ENTRY INTO HOME TO ARREST SUSPECT FOR A NON JAILABLE TRAFFIC OFFENSE WHEN THERE IS P.C. TO BELLIEVE HE DID IT

NO

4TH AMENDMENT BARS THE WARRANTLESS ENTRY INTO A SUSPECTS HOME TO EFFECT ARREST FOR TRAFFIC OFFENSE AND THE CIRCUMSTANCES DO NOT AMOUNT TO AN EXIGENCY

MINOR OFFENSES WILL GENERALLY NOT GIVE RISE TO THE REQUISITE EXIGENCY

OFFICERS GAINED ENTRY TO HOME AND ARRESTED HIM FOR DWI. ACTED ON INFORMATION FROM A WITNESS. DEFENDANT ABANDONED VEHICLE AND WALKED HOME. POLICE WENT TO HOUSE AND ARRESTED HIM.

NO GOOD

PC AND EC WAS EXPRESSLY LIMITED TO FELONY ARRESTS

IF THE UNDERLINING OFFENSE IS A SERIOUS CRIME, PC ALONE WILL NOT CREATE AN EXIGENCY

EX. 1. PURSUIT OF A FELON
DESTRUCTION OF EVIDENCE
WORKING FIRE

STATE V BOLTE
1989

MAY OFFICER WHILE IN HOT PURSUIT OF PERSON SUSPECTED OF MINOR MV VIOLATIONS AND DP OFFENSE MAKE WARRANTLESS ENTRY INTO HIS HOME TO MAKE ARREST

NO
HOT PURSUIT ALONE IS INSUFFICENT, OFFENSES ABOVE ARE INSUFFICENT OT JUSTIFY EXIGENCY NEEDED TO ENTER HOME


HOT PURSUIT ALONE IS INSUFFICENT JUSTIFICATION FOR A WARRANTLESS ARREST IN THIS CASE I.E. POTENTIAL DESTRUCTION OF EVIDENCE DISSIPATION OF DEFENDANTS BLOOD ALCOHOL CONTENT

OFFICER OBSERVED DEFENDANT DRIVING IN A ERRATIC MANNER, ACTIVATED LIGHTS TO ALERT DEFENDANT, HE IGNORED THEM. ENTERED HIS DRIVEWAY, EXITED HIS CAR AND ENTERED HIS GARAGE. PURSUED IN HOUSE AND UPSTAIR AND ARRESTED HIM

NO GOOD

BOLTES ARREST CANNOT BE SUSTAINED ON THE BASIS OF THE POTENTIAL DESTRUCTION OF EVIDENCE BECAUSE HE DID NOT HAVE PC WHEN ENTERING THE HOUSE

SHOULD HAVE EMPLOYED LESS INTRUSIVE MEASURE FOR EXAMPLE; CONSENTIAL ENTRY OR A TELEPHONIC WARRANT

STATE V STUPI
1989

WARRANTLESS HOT PURSUIT ENTRY TO EFFECT THE ARREST OF TWO FLEEING ROBBERY SUSPECTS WAS PROPER

FOLLOWING TWO SETS OF FOOTPRINTS INTO THE SNOW FROM THE CRIME SCENE, OFFICER WERE VOLINTARILY LET IN BUT THE COURT ALSO STATED EVEN IF THEY WERE NOT LET IN , THE EXIGENT CIRCUMSTANCES JUSTIFIED THE POLICE ENTRY INTO THE HOUSE T APPREHEND PERPS AND PREVENT DESTRUCTUIN OF EVIDENCE

ROBBERY OF A CAB AND THE OFFICERS FOLLOWED FOOTPRINTS IN THE SNOW. KNOCKED ON THE DOOR AND PERSON FITTING DISCRIPTION ANSWERED THE DOOR. OFFICERS ENTERED AND ARRESTED HIM. COURT SAID THEY WERE LET IN. EVEN IF THEY WERENT THEY HAD EXIGENCY TO JUSTIFY ENTRY

GOOD

WARRENTLESS HOME ENTRY TO REGAIN CUSTODY OF ARRESTEE

STATE V LIBERATORE
1996

AN OFFICERS RIGHT TO MONITOR THE MOVEMENTS OF A PERSON FOLLOWING THAT PERSONS ARREST EXISTS FOR 2 REASONS

SAFETY
INTEGRITY OF ARREST

EVERY ARREST MUST BE PRESUMED TO CREATE A RISK

ENTERING THE DEFENDANTS CLOSED PORCH WAS RULED A CONTINUATION OF THE OVERALL ARREST SEQUENCE AND REASONABLE


PURSUED VEHICLE FOR TRAFFIC VIOLATION. DEFENDANT DROVE HOME EXITED HIS CAR AND WALKED TOWARD HIS HOUSE. OFFICER ASKED HIM TO STOP AND HE REFUSED. COP ADVISED HIM HE WAS UNDER ARREST AND ESCORTED HIM BACK TO POLICE CAR. DEFENDANT MOVED AWAY FROM CAR AND ENTERED HIS HOUSE. COP FOLLOWED HIM IN THE PORCH

GOOD

PURPOSE WAS ONLY TO REGAIN CUSTODY

WAHINGTON V CHRISMAN
1982

ONCE OFFICER HAS AUTHORITY TO MAINTAIN CUSTODY, HE HAS A RIGHT TO REMAIN AT HIS ELBOW

THE PRINCIPLES IN SET FORTH IN CHRISMAN ARE EAQUALLY APPLICABLE IN N.J.

STATE V NIKOLA
2003

MAY AN OFFICER WHO HAS TEMPORARILY DETAINED A MOTORIST OUTSIDE HER GARAGE BASED ON P.C. OF D.W.I. FOLLOW HER INTO HER GARAGE WHILE SHE RETRIEVES D.L. AND THEN ARREST WITHOUT WARRANT

YES

BEFORE ENTERING HE HAD P.C. SHE WAS D.W.I. AND HE ALREADY HAD SEIZED HER BEFORE FOLLOWING HER IN THE GARAGE
WAS NOT REQUIRED TO OBTAIN WARRANT TO COMPLETE AN INVESTIGATION

STATE V NIKOLA
2003

MAY AN OFFICER WHO HAS TEMPORARILY DETAINED A MOTORIST OUTSIDE HER GARAGE BASED ON P.C. OF D.W.I. FOLLOW HER INTO HER GARAGE WHILE SHE RETRIEVES D.L. AND THEN ARREST WITHOUT WARRANT

YES

BEFORE ENTERING HE HAD P.C. SHE WAS D.W.I. AND HE ALREADY HAD SEIZED HER BEFORE FOLLOWING HER IN THE GARAGE
WAS NOT REQUIRED TO OBTAIN WARRANT TO COMPLETE AN INVESTIGATION


OBSERVED DEFENDANT DRIVING CAR. BOUNCE OFF CURBS. WROTE DOWN PLATE. FOLLOWED HER ALL THE WAY TO HOUSE AND CALLED POLICE. POLICE ARRIVED AT HOUSE. SAW DEFENDANT STANDING BY THE OPENED GARAGE. HE TOLD HER ABOUT REPORT AND SHE DENIED IT. BUT ADMITTED DRIVING.

OFFICER SMELT ALCOHOL. ASKED HER IF SHE WAS DRINKING SHE STATED 2. COULD NOT RECITE ABC. OFFICER REMAINED OUTSIDE THE GARAGE. ASKED HER FOR D.L. SHE WALKED TO HER CAR INSIDE THE GARAGE AND OFFICER FOLLOWED HER. PROBLEMS GETTING D.L. OUT OF CAR. ARRESTED HER

GOOD

COURT STATED, HAD P.C. TO BELIEVE OPERATION WHILE D.W.I. AND SINCE HE DETAINED HER BEFORE ENTERING THE GARAGE DID NOT HAVE TO GET WARRANT TO FOLLOW HER

CITIZEN INFORMANT WAS RELIABLE

THAT REPORT AND OFFICERS QUESTION AND OBSERVATION GAVE P.C. TO ARREST

HE RESTRICTED HIS MOVEMENTS TO PLACES WHERE VISITORS COULD BE EXPECTED TO GO, SUCH AS DRIVEWAY

OBSERVATION FROM SUCH VANTAGE POINTS ARE NOT COVERED BY THE 4TH AMENDMENT

STATE V JONES
1995

MAY OFFICER WHO IS IN PURSUIT OF A SUSPECT OF A OUTSTANDING ARREST WARRANT ENTER RESIDENCE USING FORCE IF HE DOESN'T KNOW WHAT THE UNDERLYING OFFENSE IS FOR

YES

OFFICERS ACTING IN PURSUANT TO AN ARREST WARRANT HAVE A RIGHT TO FOLLOW A FLEEING SUSPECT INTO A PRIVATE RESIDENCE AND AFFECT ARREST

THE ISSUANCE OF A WARRANT AND THE FACT THAT EVERY ARREST WARRANT REGARDLESS OF THE NATURE OF OFFENSE MAY PRESENT A RISK OF DANGER TO AN OFFICER

STATE V JONES
1995

MAY OFFICER WHO IS IN PURSUIT OF A SUSPECT OF A OUTSTANDING ARREST WARRANT ENTER RESIDENCE USING FORCE IF HE DOESN'T KNOW WHAT THE UNDERLYING OFFENSE IS FOR

YES

OFFICERS ACTING IN PURSUANT TO AN ARREST WARRANT HAVE A RIGHT TO FOLLOW A FLEEING SUSPECT INTO A PRIVATE RESIDENCE AND AFFECT ARREST

THE ISSUANCE OF A WARRANT AND THE FACT THAT EVERY ARREST WARRANT REGARDLESS OF THE NATURE OF OFFENSE MAY PRESENT A RISK OF DANGER TO AN OFFICER

OFFICER NOTICED A VEHICLE CONTAINING DEFENDANT, RECOGNIZED FROM PREVIOUS ENCOUNTERS, AND ALSO RECALLED THERE WAS A WARRANT FOR HIS ARREST. COULD NOT RECALL THE NATURE. EXITED THE CAR. FLED TO THE FRONT OF THE BUILDING. CHASED HIM INTO THE APARTMENT AND KICKED IN THE DOOR. OBSERVED DRUGS ON TABLE. PLACED UNDER ARREST

GOOD

WOULD HAVE BEEN DERELICT IF THEY FAILED TO EXECUTE THE WARRANT

EVERY WARRANT REGARDLESS OF OFFENSE MAY PRESENT A DANGER TO POLICE

AS LONG AS THEY ACT REASONABLY EVIDENCE AND ARREEST ADMITTED

KNOCKING AND ANNOUNCING THEIR PRESENCE AND INTENTION PRIOR TO ENTRY WAS CONSIDERED USELESS GESTURE

STATE V GREEN
1999

MUST EVIDENCE OBTAINED AS A RESULT OF AN IN HOME ARREST OF A PERSON WHO THE POLICE REASONABLY BUT MISTAKENLY BELIEVE TO BE THE PERSON NAMED IN THE ARREST WARRANT BE SUPRESSED

NO

THE STATE IS ONLY REQUIREDTO SHOW THAT THE WARRANT

WAS VALID AND
POLICE REASONABLY BELIEVED THE PERSON ARRESTED WAS THE PERSON SOUGHT

ALTHOUGH THE BETTER PRACTICE IS TO OBTAIN A PHOTO, THE FAILURE DID NOT AUTOMATICALLY REQUIRE SUPPRESSION OF EVIDENCE

STEAGALD V U.S.
1981

MAY OFFICERS LEGALLY SEARCH FOR THE SUBJECT OF AN ARREST WARRANT IN THE HOME OF A THIRD PARTY WITHOUT OBTAINING A SEARCH WARRANT

NO

ABSENT CONSENT OR EXIGENT CIRCUMSTANCES OFFICERS MAY NOT LEGALLY SEARCH FOR ABOVE WITHOUT SEARCH WARRANT
POLICE RECEIVED INFORMATION FUGITIVE CAN BE FOUND AT THE HOME OF ANOTHER PARTY. ARMED WITH ARREST WARRANT, FORCIBLY ENTERED HOME. DID NOT PRODUCE FUGITIVE, BUT FOUND COKE.

STEAGALD V U.S.
1981
STATE V MILLER

2001

MILLER WAS WANTED. OFFICERS EXECUTED WARRANT AT HIS MOTHERS KIDS HOUSE ( MRS CHAMPION ). THEY ENTERED APARTMENT WITHOUT HER CONSENT. AND WITHOUT EXIGENCY. WITHOUT A SEARCH WARRANT HE WAS FOUND IN THE BEDROOM. SEARCH OF THE IMMEDIATE AREA UNCOVERED POT. PRIOR TO ARREST TRIED TO ARREST HIM AT LOCATION LISTED FROM PAROLE WARRANT. AUNT TOLD THEM HE DIDN'T LIVE THERE. THEY WENT TO MOTHERS MOTHER HOUSE WHO SAID MILLER LIVED WITH HER DAUGHTER. THERE WAS NO FURTHER INVESTIGATION TO CONFIRM THAT REPORT. CHAMPION TESTIFIED MILLER DIDN'T LIVE THERE.

MAY OFFICERS LEGALLY SEARCH FOR THE SUBJECT OF AN ARREST WARRANT IN THE HOME OF A THIRD PARTY WITHOUT OBTAINING A SEARCH WARRANT

NO

ABSENT CONSENT OR EXIGENT CIRCUMSTANCES OFFICERS MAY NOT LEGALLY SEARCH FOR ABOVE WITHOUT SEARCH WARRANT

POLICE RECEIVED INFORMATION FUGITIVE CAN BE FOUND AT THE HOME OF ANOTHER PARTY. ARMED WITH ARREST WARRANT, FORCIBLY ENTERED HOME. DID NOT PRODUCE FUGITIVE, BUT FOUND COKE

NO GOOD

THE COURT HELD THAT THE STANDARD TO ENTER A HOME TO EXECUTE AN ARREST WARRANT WAS

OBJECTIVELY REASONABLE BASIS FOR BELIEVING THE RESIDENCE WAS HIS HOME AND

HE WAS PRESENT AT HIS HOME THE TIME THE WARRANT WAS EXECUTED

FOLLOWING ARE CASES WHERE THE POLICE HAD REASON TO BELIEVE DEFENDANTS LIVED AT RESIDENCE AND WHY

UNITED STATES V BERVALDI
2000

OFFICERS HAD REASON TO BELIEVE IT WAS SUPECTS HOME DESPITE D.L. BASED ON

PRIOR OBSERVATIONS
USED PARENTS ADRESS ON D.L. AND COURT OBSERVED NOT UNCOMMON

VALDEZ V MCPHETERS
1999

CONCLUDED SUSPECT LIVED WITH MOTHER BECAUSE

SUSPECTS OWN STATEMENTS
OTHERWISE KNOWN TO BE UNEMPOLOYED AND TRANSIENT

UNITED STATES V ROUTE
(1997

DET. USED DUE DILIGENCE TO FORM BELIEVES BASED ON

CREDIT CARD APPLICATION
CAR REG
WATER BILL

STATE V RISSE
1996

BASED ON STATEMENTS BY HER SHE WAS STAYING WITH BOYFRIEND AND 2 ATTEMPTS TO CONTACT HER THERE

MINNESOTA V OLSON
OVERNIGHT GUESTS
1990

DEFENDANT STATUS AS AN OVERNIGHT GUEST IS ALONE ENOUGH TO SHOW HE HAS EXPECTATION OF PRIVACY IN THE HOME OF ANOTHER

MINNESOTA V CARTER
GUESTS STAYING FOR A BRIEF BUSINESS RELATED VISIT
1989

THE OFFICER LOOKED IN WINDOW THROUGH A GAP IN THE CLOSED BLIND AND OBSERVED THE BAGGING OPERATION FOR SEVERAL MINITUES.

THEY THEN BEGAN PREPARING AFFIDAVIT FOR SEARCH WARRANT

SUSPECTS LEFT PRIOR TO OBTAINING WARRANT , CAR WAS PULLED OVER FOUND GUN

APARTMENT SEARCHED WITH WARRANT

COURT RULED WHILE OVERNIGHT GUESTS IN A HOME MAY CLAIM THE PROTECTION OF THE 4TH AMENDMENT, A PERSON WHO IS MERELY PRESENT WITH A HOUSEHOLDER IS NOT

SIMPLY USED THE HOUSE TO CUT COKE IN A MATTER OF HOURS

NOT PART OF THE RULING, OBSERVATION WOULD NOT HAVE CONSTITUTED A SEARCH

IT WAS OBSERVED FROM A PUBLIC VANTAGE POINT

CARTER SUGGESTES A OVERNIGHT GUEST MAY CLAIM PROTECTION OF THE 4TH AMENDMENT, A PERSON WHO IS MERLY PRESENT WITH THE
HOUSEHOLDER MAY NOT

STATE V CLEVELAND
2004
COURT RULED WHILE OVERNIGHT GUESTS IN A HOME MAY CLAIM THE PROTECTION OF THE 4TH AMENDMENT, A PERSON WHO IS MERELY PRESENT WITH A HOUSEHOLDER IS NOT

SIMPLY USED THE HOUSE TO CUT COKE IN A MATTER OF HOURS

NOT PART OF THE RULING, OBSERVATION WOULD NOT HAVE CONSTITUTED A SEARCH

IT WAS OBSERVED FROM A PUBLIC VANTAGE POINT

CARTER SUGGESTES A OVERNIGHT GUEST MAY CLAIM PROTECTION OF THE 4TH AMENDMENT, A PERSON WHO IS MERLY PRESENT WITH THE
HOUSEHOLDER MAY NOT

OFFICER RECEIVED A TIP FROM CONFIDENTIAL INFORMANT DEFENDANT WAS STAYING WITH A WOMAN AND HAD OUTSTANDING WARRANT FOR ARREST. ALSO INVOLVED WITH DRUGS AND POSSESSION OF GUN. PROCEEDED TO HOTEL TO EXECUTE WARRANT. DOOR WAS AJAR, LOOKED IN AND SAW BOTH SLEEPING. ENTERED AND ARRESTED DEFENDANT. HELPED HIM PUT PANTS ON AND SEARCHED FOUND CASH. NOTICED DRUGS IN PLAIN VIEW AND ARRESTED WOMAN. ASKED PERMISSION TO CONDUCT SEARCH AND SHE SAID YES. FOUND 9 GRAMS OF COKE.

GOOD

DEFENDANT WAS NOT A RESIDENT OF THE ROOM, JUST A VISITOR.

DID NOT ENTER ROOM TO SEARCH IT.

Ch 1.6 USE OF FORCE TO EFFECT ARREST

NO GOOD

JUDGED BY THE TOTALITY OF THE CIRCUMSTANCES

TENNESSEE V GARNER
1985
BROWER V COUNTY OF INYO
1989

HEIRS ALLEGE THAT OFFICERS USED BRUTAL EXCESSIVE FORCE, UNREASONABLE AND UNNECESSARY FORCE IN ESTABLISHING ROADBLOCK AND EFFECTED AN UNREASONABLE SEIZURE

COURT DETERMINED IT WAS A SEIZURE
MAY OFFICER USE DEADLY FORCE AGAINST UNARMED NONDANGEROUS FLEEING FELON

NO
DEADLY FORCE MAY NOT BE USED UNLESS IT IS NECESSARY

TO PREVENT THE ESCAPE OF A FELON
AND THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT THE SUSPECT POSES A SIGNIFICANT THREAT OF DEATH OR SERIOUS PHYSICAL INJURY

OFFICER DISPATCHED ON PROWLER CALL. WOMAN HEARD GLASS BREAK. OFFICER WENT BEHIND HOUSE SAW SOMEONE RUN OUT THE BACK. HE SAW NO SIGN OF A WEAPON. OFFICER WAS CONVINCED IF HE MADE IT OVER THE FENCE HE WOULD GET AWAY. SO HE SHOT HIM.

NO GOOD

SEIZURE ALONE IS NOT GOOD ENOUGH FOR 1983 SUIT. IT ALSO HAS TO BE UNREASONABLE

GRAHAM V CONNER
1989

WHEN AN EXCESSIVE FORCE CLAIM ARISES IN AN ARREST OR INVESTIGATORY STOP WHAT CONSTITUTIONAL STANDARDS GOVERN

UNDER 4TH AMENDMENT AND ITS REASONABLEMESS RATHER THE SUBSTANTIVE DUE PROCESS

REASONABLENESS INQUIREY IN AN EXCESSIVE FORCE CASE IS AN OBJECTIVE ONE

QUESTION TO BE ASKED IS ARE OFFICERS ACTIONS OBJECTIVELY REASONABLE IN THE LIGHT OF FACTS AND CIRCUMSTANCES CONFRONTING THEM, WITHOUT REGARD TO INTENT OR MOTIVATION

DIABETIC FELT REACTION COMING ASKED HIS FRIEND TO GO TO STORE, HE RAN IN STORE LONG LINE SO HE LEFT RUNNING, OFFICER OBSERVED THIS ACTION AND PULLED HIM OVER. GRAHAM GOT OUT OF THE CAR AND STARTED RUNNING AROUND CAR OFFICER PLACED IN HIM HANDCUFFS UNTIL OFFICER CAN CHECK OUT STORE THREW HIM HEAD FIRST INTO THE CAR. SUSTAINED BROKEN FOOT, CUTS BRUSIES.

RULED EXCESSIVE FORCE

AFTER CONVICTION THE 8TH AMENDMENT SERVES AS PRIMARY SORCE OF PROTECTION

STATE V SPANO
2000

IN ORDER TO KILL A DOG IN SELF DEFENSE OR IN DEFENSE OF ANOTHER, THERE MUST BE MORE THAN DOGS BARKING.

TARING BITING OR SNAPPING ESPECIALLY AT THE THROAT. OR SEIZING ANOTHER ANIMAL AT THE THROAT WITH TEATH SHAKING IT TO KILL IT

COVERED UNDER TITLE 4:19-9 WHICH STATES;

A PERSON MAY HUMANLY DESTROY A DOG IN SELF DEFENSE, OR WHICH IS FOUND CHASING WORRYING, WOUNDING AND SHEEP, LAMB, POULTRY OR DOMESTIC ANIMAL.

BUNN V SHAW
1949

THE COURT INTERPRETED THE ABOVE STATUTE TO PROHIBIT A LANDOWNER FROM KILLING A DOG WHICH IS MERELY TRESPASSING.

PERMITS THE HUMANE DESTRUCTION UNDER CIRCUMSTANCES WHICH GIVE RISE TO A REASONABLE BELIEF THAT THE DOG IS CHASING, WORRYING, OR DESTROYING ANIMALS.

WORRYING IS DEFINED BY TEARING, BITING, SNAPPING ESPECIALLY AT THE THROAT.

Ch 1.7 SUBSTANTIVE AND PROCEDURAL DUE PROCESS OF LAW
SUBJECTIVE DUE PROCESS

DUE PROCESS CLAUSE OF THE 5TH AMENDMENT PROVIDES NO PERSON SHALL BE DEPRIVED OF

OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW

DUE PROCESS CLAUSES OF THE 4TH AMENDMENT - PROTECTING INDIVIDUALS AGAINST TWO TYPES OF GOVERNMENT ACTION

THEY PROVIDE SUBSTANTIVE PROTECTION BY PREVENTING GOVERNMENT AGENTS FROM ENGAGING IN CONDUCT AND CONGRSS FROM ENACTING ANY LAW WHICH TRAMPLES UPON CITIZENS RIGHTS

SUBJECTIVE DUE PROCESS

DUE PROCESS CLAUSE OF THE 5TH AMENDMENT PROVIDES NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW

DUE PROCESS CLAUSES OF THE 4TH AMENDMENT - PROTECTING INDIVIDUALS AGAINST TWO TYPES OF GOVERNMENT ACTION

THEY PROVIDE SUBSTANTIVE PROTECTION BY PREVENTING GOVERNMENT AGENTS FROM ENGAGING IN CONDUCT AND CONGRSS FROM ENACTING ANY LAW WHICH TRAMPLES UPON CITIZENS RIGHTS

PROHIBITS LAW ENFORCEMENT AGENTS FROM ENGAGING IN CONDUCT WHICH SHOCKS THE CONSCIENCE

KOLENDER V LAWSON
1983

WILL A STATE STATUTE VIOLATE THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT WHEN IT MAKES IT AN OFFENSE TO LOITER AND WHO FAILS TO ID HIMSELF

YES

SUCH A STATUTE IS CONSTITUTIONALLY VAGUE

A PERSON WHO IS STOPPED ON LESS THAN P.C. CAN NOT BE PUNISHED FOR FAILING TO IDENTIFY HIMSELF

IN ORDER TO SURVIVE CONSTITUTIONAL PROHIBITION AGAINST VAIGUENESS, THE STATUTE OR ORDINANCE MUST BE CLEAR, IT MUST IDENTIFY THE FORBIDDEN CONDUCT WITH PARTICULARITY

VAGRANCY ORDINANCES

PAPACHRISTOU V JACKSONVILLE

STRUCK DOWN VAGRANCY ORDINANCE. FAILS TO GIVE A PERSON OF ORDINARY INTELLEGENCE FAIR NOTICE THAT HIS CONDUCT IS FORBIDDEN

STATE V GREEN
1998

POLICE SWEEPS OF PERSONS LOITERING IN HIGH CRIME AREAS. POLICE CAR ANNOUNCED ANYONE LOITERING MUST LEAVE. OFFICERS THEN ENTERED AREA TO FIND OUT IF PEOPLE BELONGED OR NOT

NO GOOD

COURT STATED IT IS WELL SETTLED PERSONS CANNOT BE ARRESTED OR DISPERSED MERELY FOR LOITERING IF THEY ARE NOT ENGAGED IN ANY ILLEGAL ACTIVITY

OVERLOOK TERRACE V WEST NEW YORK
1976

THE NEW JERSEY SUPREME COURT OUTLINED THE CONSIDERATIONS RELEVANT TO THE ISSUE OF LOITERING;

DOES THE ORDINANCE CONFLICT WITH STATE LAW, EITHER BECAUSE OF CONFLICTING POLICIES OR OPERATIONAL EFFECTING EX DOES THE ORDINANCE FORBID WHAT THE LEGISLATURE HAS PERMITTED

WAS THE STATE LAW INTENDED EXPRESSLY OR IMPLIEDLY TO BE EXCLUSIVE IN THE FIELD

DOES THE SUBJECT MATTER REFLECT A NEED FOR UNIFORMITY

IS THE STATE SCHEME SO PERVASIVE OR COMPREHENSIVE THAT IT PRECLUDES COEXISTENCE OF MUNICIPAL REGULATION

DOES THE ORDINANCE STAND AS AN OBSTACLE TO THE ACCOMPLISHMENT AND EXECUTION OF THE FULL PURPOSES AND OBJECTIVES OF THE LEGISLATURE

STOP AND IDENTIFY LAWS UPHELD

HIIBEL V NEVEDA

U.S. SUPREME COURT UPHELD STOP AND IDENTIFY LAW. N.J. DOES NOT HAVE A SIMILAR LAW ON THE BOOKS

JUVENILE CURFEW ORDINANCE WAS HELD UNCONSTITUTIONAL

STATE V GOLIN
(2003)

THE COURT STRUCK DOWN EAST WINDORS MUNICIPAL ORDINACE PROHIBITING THE MAINTENANCE OF A PUBLIC NUISANCE

DEFENDANT HAD BEEN CHARGED WITH VIOLATIONS OR ORDINANCE FOR ALLOWING THE BRANCHES OF TREES ON HER PROPERTY TO OVERHANG AND OBSTRUCT A PUBLIC SIDEWALK

FOUND TO BE UNCONSTITUIONALLY VAGUE

PROCEDURAL DUE PROCESS

PROHIBITS THE STATES FROM IMPLEMENTING THE LAW IN AN UNFAIR MANNER

GUARANTEES THAT GOVERNMENT WILL IMPLOY A FAIR AND REASONABLE DECISION MAKING PROCESS BEFORE ENGAGING IN ANY ACTION WHICH MIGHT IMPAIR AN IDIVIDUALS LIFE LIBERTY OR PROPERTY

STATE V SALZMAN
1987

MUST A COMPLAINT INFORM THE ACCUSED OF ALL THE CHARGES HE MUST DEFEND AGAINST

YES

DUE PROCESS REQUIRES THAT THE CHARGING INSTRUMENT NOT ONLY INFORM THE DEFENDANT THE NATURE BUT HOW MANY CHARGES

MAN CHARGED WITH BARKING DOG, DAY IN COURT UNKNOWN TO HIM HE HAD 5 CHARGES WHEN HE THOUGHT HE HAD 1

THE COMPLAINT MUST CONTAIN ENOUGH INFORMATION TO ENABLE THE ACCUSED TO DEFEND HIMSELF AND AVOID THE RISK FROM SUCCESSIVE PROSECUTIONS FOR THE SAME TRANSGRESSIONS

STATE V GONZALEZ
1989

WHEN OFFICER ISSUES A TICKET, MUST HE PRESENT IT TO A JUDGE FOR A PROBABLE CAUSE HEARING

NO PC HEARING IS REQUIRED FOR A TRAFFIC SUMMONS

COMPLAINTS MADE BY PRIVATE CITIZENS

BEFORE A SUMMONS MAY BE ISSUED ON A COMPLAINT MADE BY A PRIVATE CITIZEN, THERE MUST BE AN INDEPENDENT DETERMINATION OF PROBABLE CAUSE BY A JUDICIAL OFFICER

STATE V LATORRE
1988

THE COURT ADRESSED THE QUESTION WHETHER AN OFFICERS FAILURE TO SIGN A SUMMONS ISSUED TO DEFENDANT FOR DWI RENDERS IT FATALLY DEFECTIVE

NO

COURT REFUSED TO ADOPT A GENERAL RULE, IT DID STATE SUCH A DECISION DOES DEPEND ON THE CIRCUMSTANCES

IN THIS SITUATION THE OMMISSION DID NOT DEPRIVE DEFENDANT OF ANY CONSTITUTIONAL IMPERATIVE. TICKET STANDS

SAME GOES FOR LEAVING THE MUNICIPALITYS NAME OFF THE TICKET STATE V VREELAND COURT STAES IT WAS A TECHNICAL OMMISSION AND IT STILL STANDS FOR DWI

REQUIRES CORRECTION WITHIN THE STATUTE OF LIMITATIONS

STATE V FISHER
2004

IS AN OFFICERS FAILURE TO SIGN A TRAFFIC TICKET A CURABLE MISTAKE

YES

FATAL TO THE PROSECUTION ONLY WHEN THAT OMMISSION DEFEATS THE PURPOSES TO BE SERVED BY THE TICKET

ISSUED 3 SUMMONS SIGNED THE FIRST 2 BUT FAILED TO SIGN THE THIRD
A DWI TICKET

GOOD

THE COURT HELD UNSIGNED TICKET IS NOT FATALLY DEFECTIVE, IT MUST BE REMEDIED IF CHALLENGED

THE STATE MAY CORRECT THE ERROR EITHER BY

SUBMITTING AFFADIVIT OR TESTIMONY FROM OFFICER DEMONSTRATING THAT THERE WAS PROBABLE CAUSE OR
HAVING THE OFFICER SIGN THE TICKET

HAVING DETERMINED THAT THE OMISSION OF SIGNATURE DOES NOT VOID THE TICKET,
ALSO CONCLUDED IT CAN BE DONE MORE THAN 30 DAYS OVERRULING BRENNAN

Ch 1.8 EXTRA TERRITORIAL ARRESTS
THE GOVERNING BODY OF A MUNICIPALITY WAS RESTRICTED IN ITS EXERCISE OF POLICE POWER TO THE CONFINES OF ITS BOUNDRIES
4A: 14 -152 WAS EMBODIED AND STATES WERE LIMITED

COURT STATES A LITERAL INTERPRETATION OF THIS WOULD LIMIT THE POLICE. STATES THEY HAVE THE SAME RIGHTS AS CITIZEN MAKING A CITIZEN ARREST

THE ONLY RESTRICTION OF THIS PROVISION WAS THAT THE ARRESTEE BE BROUGHT BEFORE

ANY MAGISTRATE OF THE COUNTY WHERE APPREHENDED

STATE V MONTALVO
1995
STATUTE PROVIDES THAT POLICE HAVE ALL THE IMMUNITYS FROM TORT LIABILITY
WHEN EXERCISING STATEWIDW POWERS AND ACTING UNDER LAWFUL AUTHORITY BEYOND TERRITORIAL LIMITS OF MUNICIPALITY, A POLICE OFFICER IS PROTECTED BY 40A:14-152.2 IN SEVERAL WAYS

AND ENJOY ALL PENSION AND COMPENSATION SAFEGUARDS

STATE V GADSDEN
1997

DEFENDANTS CONSTITUTIONAL RIGHTS WERE NOT VIOLATED, FOR HE HAS NO CONSTITUTIONAL RIGHT TO BE ARRESTED IN NEWARK BY NEWARK OFFICERS RATHER THAN HILLSIDE OFFICERS. IT IS NOT A CONSTITUTIONAL DIMENSIONS

COURT STATED IT WAS A TECHNICAL, PROCEDURAL NOT A CONSTITUTIONAL VIOLATION

STATE V WHITE
1997

ORANGE WAS CONDUCTING INVESTIGATION OF BURGLARY. RESULTED IN ARREST. WHITE PURCHASED STOLEN GOODS FROM ARRESTEE. ORANGE TRAVELED TO WHITES HOUSE IN NEWARK SPOKE TO MOTHER AND OBTAINED CONSENT AND FOUND PROPERTY

GOOD

COURT STATED IT'S AN ADVISABLE POLICE PROCEDURE TO HAVE JURISDICTIONAL REPRESENTITIVE RESPOND WITH THEM BUT DID NOT RISE TO THE LEVEL OF CONSTITUTIONAL VIOLATION

STATE V DEGROTE
1975

THE NJ SUPERIOR COURT HAS HELD ILLEGAL HELD ILLEGAL THE ARREST OF A DEFENDANT BEING PURSUED FROM NY INTO NJ WHERE NY OFFICERS HAD PC TO BELIEVE A CLASS A MISDEMENOR WAS COMMITTED, EQUAL TO A DP OFFENSE

ABSENT PC TO BELIEVE THE NY EQUVUILANT OF A CRIME OF THE 1ST, 2ND OR 3RD DEGREE WAS COMMITTED NY CAN NOT CHASE INTO NJ

IN MONTALVO - MUTIAL AID ORDINANCES ARE NOT PREREQUISITES TO THE EXERCISE OF POLICE POWERS ACROSS THE OUNDRIES OF CONTIGIOUS MUNICIPALITIES WHERE BOTH HAVE A RECOGNIZED AND ONGOING MUTUAL AID RELATIONSHIP

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