LEGAL ASPECTS OF ARREST











Presented to the Topeka Police Department

Recruit Academy



January 13 & 14, 2000































by



John J. Knoll



Assistant City Attorney



City of Topeka, Kansas















© 1999, 2000 - City of Topeka All Rights Reserved. Unauthorized duplication or copying is prohibited.



Legal Aspects of Arrest



I. Introduction

II. Definitions

III. Types of Policed-Citizen Encounters

IV. Legal Standards justifying arrest

V. Do you need a warrant?

VI. Use of force in making an arrest

VII. Alternatives to arrest

VIII. Special Problems

(A detailed Table of Contents Appears at the end of this document)



I. Introduction

An arrest basically is a "seizure" of a person. The seizure can be permanent (arrest of a killer who goes to prison for life) or temporary (application of handcuffs to mouthy, irate person during a car stop). In any event, the arrest "event" has certain legal implications, so it is important to know the law of arrests.

Contrary to what you see in the movies or on Dragnet or other cop shows, police need not utter any magic words (e.g., "you are under arrest") for an arrest to occur. Sometimes an arrest is helpful to the case; sometimes it isn't. This outline will attempt to clarify who can be arrested, what constitutes an arrest, when an arrest occurs and the legal ramifications of an arrest.

All constitutional arrest law flows from the Fourth Amendment to the United States Constitution which provides:



The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.



Kansas Bill of Rights § 15 is very similar in wording and is interpreted the same as the Fourth Amendment.

The Fourth Amendment requires that seizures (arrests) be "reasonable." As in any other area of law, "reasonableness" means different things and what is reasonable in one case may be unreasonable in another depending on the facts of each case.

II. Definitions

A. Arrest

"To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand." Blacks' Law Dictionary, 100 (5th Ed. 1979).

An individual is "under arrest" when a reasonable person in the subject's shoes would feel like they were not free to leave under the circumstances. Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). It is NOT relevant what the officer thought -- only what officer said and did -- the test is an objective one, not a subjective one. Florida v. Bostick 111 S.Ct. 2382 (1991).

B. Detention

"The act of keeping back or withholding, either accidentally or by design, a person or other thing." Blacks' Law Dictionary, 404 (5th Ed. 1979).

C. Probable Cause

Reasonable cause; having more evidence for than against. A reasonable ground for belief in the existence of facts warranting the proceedings complained of. An apparent state of fact found to exist upon reasonable inquiry (that is, such inquiry as the given case renders convenient and proper), which would induce a reasonably intelligent and prudent man to believe, in a criminal case, that the accused person had committed the crime charged, or in a civil case, that a cause of action existed. Blacks' Law Dictionary, 1081 (5th Ed. 1979).

D. Reasonable Suspicion

"Reasonable suspicion which will justify officer in stopping defendant in a public place is quantum of knowledge sufficient to induce ordinarily prudent and cautious man under circumstances to believe criminal activity is at hand." Blacks' Law Dictionary, 1138 (5th Ed. 1979).

E. Terry Stop

A brief and limited detention of a person based on reasonable and articulable suspicion of a police officer based on an objective view of facts previously known to him, or made known to him through observation, that the person stopped is committing, has committed, or is about to commit a crime. Terry v Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968).

III. Types of Policed-Citizen Encounters

Police-Citizen Encounter Matrix



Interaction Fourth Amendment Seizure? Justification Required
Voluntary Police-Citizen Encounter No None
Terry Stop Yes Reasonable Suspicion
Arrest Yes Probable Cause


Q. Can an officer approach anyone for whatever reason and ask their name?

A. Yes. This is known as a police-citizen encounter and raises no Fourth Amendment concerns. Without having reasonable suspicion to justify a Terry stop, an officer may approach an individual and request their name and identification, but the individual is free to leave and the officer cannot force the individual to answer. State v. McKeown, 249 Kan. 506, 509, 819 P.2d 6344 (1991).

IV. Legal Standards justifying arrest

A. Statutory Provisions



1. K.S.A. 1998 Supp. 12-4212 (CITIES AND MUNICIPALITIES Article 42.--CODE FOR MUNICIPAL COURTS; PROSECUTION AND ARREST), and amendments thereto:

(a) Except as provided in subsection (b), a law enforcement officer may arrest a person under any of the following circumstances:

(1) The officer has a warrant commanding that the person be arrested.

(2) A warrant for the person's arrest has been issued by a municipal court in this state.

(3) The officer has probable cause to believe that the person is committing or has committed a violation of an ordinance and that the person has intentionally inflicted bodily harm to another person.

(4) The law enforcement officer detained the person pursuant to subsection (c) or (d) of K.S.A. 12-4211 and amendments thereto and:

(A) The person refuses to give a written promise to appear in court when served with a notice to appear;

(B) the person is unable to provide identification of self by presenting a valid driver's license or other identification giving equivalent information to the law enforcement officer;

(C) the person is not a resident of the state of Kansas; or

(D) the law enforcement officer has probable cause to believe that the person may cause injury to self or others or may damage property unless immediately arrested.

(b) A law enforcement officer may not arrest a person who is charged only with committing an ordinance traffic infraction or an ordinance cigarette or tobacco infraction unless the person charged has received service of a notice to appear and has failed to appear for the infraction.



Municipal officers are not limited to arrest powers in K.S.A. 12-4212. May also arrest pursuant to K.S.A. 22-2401. Griffin v. State, 14 Kan. App. 2d 803, 799 P.2d 521 (1990).



2. K.S.A. 1998 Supp. 22-2401 (KANSAS CODE OF CRIMINAL PROCEDURE), and amendments thereto:



A law enforcement officer may arrest a person under any of the following circumstances:

(a) The officer has a warrant commanding that the person be arrested.

(b) The officer has probable cause to believe that a warrant for the person's arrest has been issued in this state or in another jurisdiction for a felony committed therein.

(c) The officer has probable cause to believe that the person is committing or has committed:

(1) A felony; or

(2) a misdemeanor, and the law enforcement officer has probable cause to believe that:

(A) The person will not be apprehended or evidence of the crime will be irretrievably lost unless the person is immediately arrested;

(B) the person may cause injury to self or others or damage to property unless immediately arrested; or

(C) the person has intentionally inflicted bodily harm to another person.

(d) Any crime, except a traffic infraction or a cigarette or tobacco infraction, has been or is being committed by the person in the officer's view.



3. Section A10-26 of the Code of the City of Topeka (1994), as amended,



A law enforcement officer may arrest a person under any of the following circumstances:

(a) The officer has a warrant commanding that the person be arrested.

(b) A warrant for the person's arrest has been issued by a municipal court in this state.

(c) The officer has probable cause to believe that the person is committing or has committed a violation of an ordinance and that the person has intentionally inflicted bodily harm to another person.

(d) The law enforcement officer, having no warrant, has detained such persons pursuant to K.S.A. 12-4211(c) or (d) and amendments thereto, and:

(1) The person refuses to give a written promise to appear in court when served with a notice to appear;

(2) The person is unable to identify the person to the reasonable satisfaction of the law enforcement officer;

(3) The person is not a resident of the State of Kansas; or

(4) The law enforcement officer has probable cause to believe that the person may cause injury to self or others or may damage property unless immediately arrested.



4. K.S.A 12-4211 (CITIES AND MUNICIPALITIES Article 42.--CODE FOR MUNICIPAL COURTS; PROSECUTION AND ARREST), and amendments thereto:



A law enforcement officer may detain a person when:



(a) He or she has a warrant commanding that such person be arrested; or



(b) he or she has reason to believe that a warrant for the person's arrest has been issued by any municipal court; or



(c) he or she has probable cause to believe that the person is committing or has committed a violation of an ordinance, and the law enforcement officer has probable cause to believe that such person will not be apprehended or evidence of the violation of the ordinance will be irretrievably lost unless such person is immediately detained, or such person may cause injury to himself, herself or others or damage to property unless immediately detained; or



(d) any violation of an ordinance has been or is being committed by such person in his or her view.



A law enforcement officer having detained a person pursuant to the preceding paragraph, except subsection (a) or (b) thereof, may release the person or may prepare and serve upon such person a complaint and notice to appear, as provided by K.S.A. 12-4204 or 12-4205 and shall then release such accused person from such detention, except in such instances where the law enforcement officer has power and authority to arrest such accused person as hereinafter set forth.



5. K.S.A. 8-2118

(See attached)

II. Probable Cause

A. Generally

The probable cause requirement comes from the Fourth Amendment, which requires a showing of probable cause before a court can issue a warrant. If there is no warrant, the other half of the Amendment governs the arrest, and it requires the arrest to be "reasonable." The United States Supreme Court has expressly declared that arrests which are not supported by probable cause are unreasonable. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

B. Nature of Probable Cause

If you have some trouble describing probable cause or "PC" to your spouse or friends, there is no need to worry about it. Many brilliant minds have used countless different words to describe the elusive concept. Therefore, it is difficult to say in any given situation exactly when probable cause exists; reasonable minds may differ as to when probable cause attaches.

Probable cause is essentially a legal determination which depends on facts supplied by an officer who makes an arrest. In making this assessment, courts apply a balancing test in which they assess the need to make an immediate arrest (threat to officer, public, etc.), against the privacy interests of individuals. Courts start with the premise that warrantless arrests are unreasonable unless they fit within a limited number of exceptions.

What "facts" must be shown to rise to the level of probable cause? The best answer is it depends on the circumstances. Why doesn't the court give us clear guidance? The law requires some flexibility to avoid unjust results. As the United States Supreme Court has said:



In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. Brinegar v. United States, 338 U.S. 160, 69 S.Ct.1302, 93 L.Ed2d 1879 (1949).

Probable cause does not require proof of each element of a crime beyond a reasonable doubt. The court will consider all information in law enforcement officers' possession, fair inferences therefrom and observations of officers. This includes hearsay and facts that may not be admissible in evidence. State v. Mayberry, 248 Kan. 369 (1991); State v. Peterson, 236 Kan. 821 (1985).

The bottom line? Probable cause is more than bare suspicion and less than evidence that would justify a conviction (proof, beyond a reasonable doubt, of each element of the crime).

C. Informant Information

You've heard the saying "[t]here is no honor among thieves." It is true, but should be revised to say "there is no honor among criminals." Many, many cases result from criminals "rolling over" on each other. Does the fact that a person is involved in criminal activity make the facts they supply you less reliable than facts provided by an average citizen?

Courts used to be highly suspicious of such information and require the officer seeking the warrant to show the informant had a basis for knowing the information and a track record for being truthful, but in 1983 the United States Supreme Court abandoned this approach and established "totality of the circumstances" as the analysis to apply to informant information. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). An informant's veracity, reliability and basis for knowledge still enter into the mix, and usually some corroboration of the information the informant provided will be required to establish probable cause. For example, if the informant says "I've bought drugs from X, a 5'10" white male with a red beard who lives at 1243 Western, Apt. 1, and X always drives to 5701 S. Lawrence in a red 1994 Toyota Celica, then returns with the drugs," and police corroborate some or all of this information through surveillance and controlled buys, the informant information can establish probable cause at least to get search warrants, which may result in an arrest.

An anonymous tip, sufficiently corroborated by police observations, and reliably predicting future behavior, may justify an investigatory detention. Alabama v. White, 496 U.S. 325 (1990).

D. Victim/Witness Information

Victim and witness information is not usually viewed with the same suspicion as informant information for the obvious reason that victims and witnesses are not usually engaged in criminal activity and do not have a reason to lie about what they saw or why they were there when they saw the illegal activity. Chambers v. Moroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). However, police must use extra caution when it appears the victim or witness may have a particular axe to grind or other motives to report a crime that may not have actually occurred. For example, the alleged rape victim who engaged in consensual sex but then made up the rape story because she was going to get in trouble for staying out all night, or the drunk on the telephone giving a highly detailed description of someone who stole his car, wrecked it and then brought it back. Rather than running right out and arresting the person fitting the description of the alleged rapist or car stealer, police need to ask themselves if the "victim" has a reason to lie and dig up and corroborate some facts that illustrate the "victim's" reliability.

E. Information from/held by other officers

Generally, information from other officers or other law enforcement agencies is presumed reliable and no special showing of reliablity is necessary. Whitley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971)(arrest on bulletin from another agency which stated arrest warrant had issued; warrant later determined to be invalid); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)(no special showing of reliablity necessary when facts cited in search warrant affidavit were observations of fellow officers).

F. First-hand information

1. Association with known criminal.

Does not rise to probable cause unless the offense involves an act "criminally visible." United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed.2d 210 (1948)(riding in car with person enagaged in trading in counterfeit ration cupons insufficient).

2. Furtive Gestures.

Attempts to conceal a suspicious object from police are strong evidence of a guilty mind and do lead to probable cause. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

3. Flight from a LEO.

Does not automatically establish probable cause, but definitely gives rise to reasonable suspicion of criminal activity. California v. Hodari D., 499 U.S. 621, 627, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)("compliance with police orders to stop should . . . be encouraged. Only a few of those orders, we must presume, will be without adequate basis, . . . [so] it almost invariably is the responsible course to comply.") However, stay tuned for further developments. The United States Supreme Court granted review on May 3, 1999, in a case which will decide whether flight alone establishes reasonable suspicion to detain. Illinois v. Wardlow, ___ U.S. ___ (No. 98-1036).

V. Do you need a warrant?

Generally, if there is probable cause to believe a felony has been committed, or probable cause to believe a misdemeanor has been committed plus some type of exigent circumstances, and the person to be arrested is in a public place, no arrest warrant is required. United States v. Watson, 423 U.S. 411 (1976).

A. In a home

In most cases, a warrant is required to enter a home to either search or arrest. A person's home is their castle and is accorded special Fourth Amendment protection. Except in a very, very limited range of circumstances, a warrant will always be required. Absent probable cause and exigent circumstances, warrantless arrests in the home are prohibited by the Fourth Amendment. Payton v. New York, 445 U.S. 573 (1980).

1. Entry and Search of Premises

A detailed discusssion of home searches is beyond the scope of this arrest outline, but in order to enter and search a home without a warrant, officers must show one of two exceptions: (1) consent, or (2) probable cause to believe a serous (person felony) crime has been comitted and exigent circumstances exist which excuse the warrant requirement.

2. Basis for entry to arrest

a. Arrest Warrants

If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. Payton v. New York, 445 U.S. 573, 602-603.



If the suspect named in the arrest warrant is believed to be within a third party's premises, and there is no consent to enter, a separate search warrant must also be obtained to search there for the intended arrestee. Steagald v United States, 451 U.S. 204 (1981); Minnesota v. Olson, 495 U.S. 91; 109 L.Ed. 2d 85 (1990). Persons with common authority over the residence can grant valid consent to enter. United States v. Matlock, 415 U.S. 164 (1974). If the circumstances create a reasonable belief in the officer that the person has common authority over the residence is sufficient. Illinois v. Rodriguez, 497 U.S. 177 (1990).

If officers enter a residence to arrest a subject named in an arrest warrant AND DO NOT have a reasonable basis for believing subject lives there AND a reasonable basis for believing the subject will be found therein at the time of entry, entry will be unconstitutional, the arrest will be unconstitutional, any evidence seized will be suppressed and the officers will likely get sued for damages and lose. Stated a slightly different way, a search warrant is required to enter a residence and arrest someone named in an arrest warrant UNLESS the officer has a reasonable basis for believing the person lives there and will be found therein at the time of entry. Valdez v. McPheters, 172 F.3d 1220, 1225 (1999).

b. Arrests based on Probable Cause and Exigent Circumstances

Police may enter a home and arrest when there is probable cause to believe a serious crime is being committed therein and exigent circumstances exist which make it impractical to get a warrant. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Warden v. Hayden, 387 U.S. 294, 298-299, (1967). The urgency of the situation and the need to take immediate, warrantless action will render official conduct "reasonable" under the Fourth Amendment. Such exigencies may justify searches or seizures of persons, vehicles and other property, though they may be used most often to justify a warrantless entry into the home. Steagald v. United States, 451 U.S. 204 (1981); State v. Platten, 225 Kan 1 (1979).

For example, a domestic violence call and reason to believe an aggressor is still in the residence justify a warrantless entry and search of a house. State v. Gilbert, 24 Kan.App.2d 159, 168, 942 P.2d 660, rev. denied 262 Kan.VIII (1997). Another example is "hot pursuit" (fresh and continuous pursuit from the scene of a crime).

Seriousness of the crime will always be a very important factor in determining whether a court will find exigent circumstances. In Welsh v. Wisconsin, 466 U.S. 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), an officer investigating an accident finds that an intoxicated individual caused an accident and left the scene. The officer goes to the person's house and finds the intoxicated person therein. He enters without a warrant and arrests the person based on the fact that evidence of DUI rapidly disappears. The court held there was no exigent circumstances justifying a warrantless entry. Before government agents may invade the sanctity of the home, the government must demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Moreover, although no exigency is created simply because there is probable cause to believe that a serious crime has been committed, application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense has been committed. (First DUI conviction in Wisconsin carried no criminal penalties at the time). See also Howard v. Dickerson, 34 F.3d 978 (10th Cir. 1994)(misdemeanor careless driving and leaving the scene of an accident do not justify warrantless entry)

3. Entry without notice to arrest

Generally, courts have a strong preference that officers knock and announce the reason for their presence ("Police - Search Warrant" or "Police - Arrest Warrant") prior to entering a dwelling. The purpose of the"knock and announce" rule is basically threefold: (1) to decrease the potential for violenence; (2) to protect an indiviudal's right to privacy; and (3) to minimize property damage by giving the person the opportunity to voluntarily open the door before police smash it with a battering ram. However, there are some exceptions to the rule:

A. Entry by Ruse

B. Probable cause to believe the subjects in the dwelling may be armed and dangerous.

C. Probable cause to believe that knocking and announcing will lead to the destruction of evidence.

A failure to knock and announce will not always lead a court to hold any particular entry was unreasoanble, but will be a factor in determining whether the entry was reasonable. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).

4. Search before and incident to arrest

Assuming a valid arrest (not search) warrant exists, and you know the target of the warrant lives at the residence where you find yourself and is home at the time, and that you have knocked and announced your presence and have been admitted, can you search the home pursuant to that arrest warrant?

The answer is no, but with certain qualifications. Obviously, police can search the home to the extent necessary to find the person named in the warrant. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Police who are lawfully in a home can perform a cursory "protective sweep" of the home when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Maryland v. Buie, 494 U.S. 325 (1990).

A "protective sweep" is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. Maryland v. Buie, 494 U.S. 325 (1990). Of course, any incriminating items seen in plain view during the sweep can be seized, and may establish probable cause to arrest others who are in the residence if there is some connection between the person and the incriminating items.

Also, if lawfully in the residence, police can search the area "within the immediate control" or "lunge" area of the arrestee to look for weapons or other evidentiary items that may disappear unless police immediately locate them. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Additionally, if an arrestee is taken into custody outside his home and enters his home to get bail money, clothing, etc., the officer may enter and monitor the arrestee's movements (and seize any evidence in plain sight). Washington v. Chrisman, 455 U.S. 1, 7-9, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982).

5. Search and exploration after arrest

After a valid arrest, police may search the person (including his clothing) incident to that arrest. The rationale is that once a person has been arrested, a search of his person does not significantly infringe on his right to privacy and is justified by the dual law enforcement objectives of officer safety and location of contraband. Additionally, the person's items can be "inventoried" when they are delivered to the jail to (1) safeguard and protect the person's property; (2) protect the police against groundless claims for failure to safeguard property; (3) safety of the detention facility; and (4) ascertaining or verifying the identity of the person arrested.

B. After a car stop

1. Search and seizure of vehicles

Although the legal definition of a seizure asks whether a reasoanble person would feel like they were no longer free to go, does that mean every car stop is an arrest because the driver is not free to go? The answer is a qualified no. Temporary detention of individuals during a car stop by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons." See Delaware v. Prouse, 440 U.S. 648, 653 (1979). An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. However, car stops generally involve a brief, limited detention based on a traffic infraction or misdemeanor committed in the officer's presence and are generally governed by the law on Terry stops. State v. Mitchell, 265 Kan. 238 (1998).

Officer safety concerns justify certain suspect-control activities during a traffic stop. Routinely ordering the occupants of a lawfully stopped vehicle to get out of the vehicle is a reasonable incident of the stop; the officer need give no particular justification for this practice in any case. Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882 137 L.Ed.2d 41 (1997) (passengers); Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977)(drivers). See also Foley v. Connelie 435 U.S. 291, 298 (1978); Michigan v. Long, 463 U.S. 1032 (1983); State v. Roadenbaugh, 234 Kan. 474 (1983);

While Terry standards usually govern, car stops frequently turn into something else. During the stop, the officer may discover evidence of an arrestable offense (DUI, drugs, revoked driver's license, etc). Because the driver will now be arrested, what do you do with his car? The general rule is to search the car for evidence of "the" crime (if any evidence is likely to be found therein) then, if the car can be lawfully parked, park it. However, different facts may dictate a different result.

2. Search incident to arrest

As you have or will learn in search and seizure, this is one area where federal law and Kansas law are vastly different.

The Federal Rule

When police make a lawful custodial arrest of the occupant of an automobile, "he may, as a contemporanous incident of that arrest, search the passenger compartment of that automobile," inclusive of the contents of any containers found within the passenger compartment. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

The Kansas Rule

K.S.A. 22-2501(1)

governs searches incident to arrest and allows an officer to search only for "the" crime, not evidence of "a" crime. Therefore, when an officer arrests a driver for a traffic warrant for violation of the child restraint law and suspended license, he cannot search the glove compartment incident to the arrest. State v. Anderson, 259 Kan. 16, 24, 910 P.2d 180 (1996). In other words the officer was not looking for the fruits of the child restraint or suspended license infraction. The search of the glove compartment revealed methamphetamine residue that lead to the discovery of methamphetamine manufacturing equipment in the trunk and motel room. Holding clearly narrows the "bright line" test of Belton.

3. Search and seizure to search for evidence

If a car is used to commit a crime, the car can be seized and searched without a warrant for evidence of the crime, but the preference is to merely seize the vehicle while seeking a warrant allowing its search. For example, officers who arrested the occupants of a station wagon for a just-committed armed robbery did not violate the Fourth Amendment by towing it to the police station and searching it without a warrant because they could have searched it on the spot of arrest. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); but see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed2d. 564 (1971)(striking down seizure of a vehicle from a murder suspect's driveway).

4. Search of containers and persons within

Provided there is probable cause to search a vehicle, the search can extend to all parts of the vehicle and all containers therein. Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 1304, 143 L.Ed.2d 408 (1999)(passenger's purse); California v. Acevedo, 500 U.S. 565, 573 (1991)(brown paper bag in trunk); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)(suitcase in trunk of cab).

5. Seizure for other purposes

a. Forfeiture

When officers have probable cause to believe that a vehicle is forfeitable contraband, they do not have to obtain a warrant to seize and search the car. Analogizing to the inherent mobility doctrine first announced in Carroll v. United States, 267 U.S. 132, 149 (1925), the Court said the need to seize readily movable contraband before it is spirited away is "equally weighty when the automobile, as opposed to its contents, is the contraband the police seek to secure." Florida v. White, 526 U.S. 559, 119 S.Ct. 1555, 1559, 143 L.Ed.2d 748 (1999).

b. Other Impounds

Police can do an "inventory" search of a car when it is lawfully impounded based on a statute, ordinance or some other reasonable grounds. State v. Teeter, 249 Kan. 548, 550-21, 819 P.2d 651 (1991).

Reasonable grounds for impounding a vehicle include: (1) an unattended-to car illegally parked or otherwise illegally obstructing traffic; (2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver; (3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically defective as to be a menace to others using the public highway; (6) a car impoundable pursuant to ordinance or statute which provides therefor as in the case of forfeiture. Teeter, 249 Kan. at 552.

If the owner, operator or person in charge of a vehicle is readily available to make a determination as to the disposition of the vehicle, the officer cannot make that determination for him or her. State v. Fortune, 236 Kan. 248, 257, 689 P.2d 1196 (1984).

VI. Use of force in making an arrest

A detailed discussion of the use of force is reserved to the legal aspects of use of force class. However, three statutes deserve mention.

K.S.A. 22-2405 governs the method of arrest and states:



(1) An arrest is made by an actual restraint of the person arrested or by his submission to custody.

(2) An arrest may be made on any day and at any time of the day or night.

(3) All necessary and reasonable force may be used to effect an entry upon any building or property or part thereof to make an authorized arrest.



Deadly force, however, is governed by a different statue. K.S.A. 21-3215 states:



(1) A law enforcement officer, or any person whom such officer has summoned or directed to assist in making a lawful arrest, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. Such officer is justified in the use of any force which such officer reasonably believes to be necessary to effect the arrest and of any force which such officer reasonably believes to be necessary to defend the officer's self or another from bodily harm while making the arrest. However, such officer is justified in using force likely to cause death or great bodily harm only when such officer reasonably believes that such force is necessary to prevent death or great bodily harm to such officer or another person, or when such officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and such officer has probable cause to believe that the person to be arrested has committed or attempted to commit a felony involving great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that such person will endanger human life or inflict great bodily harm unless arrested without delay.

(2) A law enforcement officer making an arrest pursuant to an invalid warrant is justified in the use of any force which such officer would be justified in using if the warrant were valid, unless such officer knows that the warrant is invalid.



Finally, K.S.A. 21-3217 creates a duty on the part of citizens not to resist arrest. That statute states:



A person is not authorized to use force to resist an arrest which he knows is being made either by a law enforcement officer or by a private person summoned and directed by a law enforcement officer to make the arrest, even if the person arrested believes that the arrest is unlawful.

VII. Alternatives to arrest

A. Stop and Frisk and Similar Lesser Intrusions

B. Stop and frisk: Fourth Amendment Theory

You will often hear the phrase "the police didn't have probable cause to stop me." It doesn't matter. Police do not need probable cause to stop someone. As noted above, police can detain persons without their consent as long as the police have a reasonable, articulable suspicion the person has, is, or soon will be engaged in criminal activity. The case from which this principle arose involved a Clevland police officer who saw three men repeatedly looking into a store window as if they were "casing" the joint for a stickup. The officer approached the men and asked them to identify themselves. They mumbled something in reply, of the officer patted them down and discovered concealed weapons on two of them. The United States Supreme Court upheld the practice, holding that police may make a limited exception to the probable cause and warrant requirements of the Fourth Amendment in that an officer may stop (and perhaps) frisk an individual if the officer has a reasonable and articulable suspicion, based on an objective view of facts previously known to him, or made known to him through observation, that the person stopped is committing, has committed, or is about to commit a crime. Terry v Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968); State v. Baker, 239 Kan. 403, 720 P.2d 1112 (1986). If the officer reasonably suspects that his personal safety or that of others nearby requires it, he can pat down the outer clothing of the stopped suspects to locate weapons they may be carrying. Terry, 392 U.S. 1; State v. Epperson, 237 Kan. 707, 711-712, 703 P.2d 761 (1985). See K.S.A. 22-2402(2)

and amendments thereto.

Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like 'articulable reasons' and "founded suspicion' are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances - the whole picture - must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-418, 66 L.Ed.2d 621, 101 S.Ct. 690 (1981)

C. Dimensions of a permissible stop

Terry stops can be carried out on less than probable cause and without a warrant. Therefore these forcible investigative stops are more limited than the traditional arrest. Terry, 392 U.S. 1; Baker, 239 Kan. 403.

A seizure occurs when there is a "governmental termination of freedom of movement through means intentionally applied". Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). The "means" can include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

Just what degree of restraint transforms a detention into an arrest has not been specifically defined. But when considering the definition of "custody" for the Fifth Amendment purposes of Miranda applicability, the Supreme Court included "a formal arrest" (presumably, service of an arrest warrant or announcement by officers to the suspect that he is under arrest), and "restraint on freedom of movement of the degree associated with a formal arrest" (which would likely include handcuffing, forcibly confining, or using deadly force). California v. Beheler, 463 U.S. 1121, 1125 (1983).

Use of weapons and restraints on a Terry Stop won't always transform it into an arrest. State v. Nuccient, 15 Kan. App. 2nd 554 (1991)(aggravated robbery suspect's vehicle stopped and driver removed and handcuffed him at shotgun point). The degree of force is commensurate or reasonable with the degree of dangerousness inherent in the information possessed by the police and thus allows a sliding scale of force in conducting a stop and frisk. United States v. Tilmon, 55 CrL 1008, (7th Cir. 1994). The rationale for this rule is based on the fact that officers may not "know what they have" when they make a stop. For example, an officer held a man suspected of being the "stash holder" in a two man drug sale operation at gun point on his knees behind the car he had been driving while the car was searched for weapons - on Terry grounds. The court stated:

Courts today will find a permissible use of force by the police under circumstances that might have raised judicial eyebrows at the time the Terry decision was issued. While it was once considered necessary in order to justify a Terry frisk, for a law enforcement officer to be 'justified in believing that the individual whose suspicious behavior he is investigating is armed and presently dangerous to the officer. 'It now suffices, in appropriate circumstances, for the officer to be justified in believing that the individual might be armed and dangerous. . .. This development is a product of the times. Twenty-five years ago. it might have been unreasonable to assume that a suspected drug dealer in a car would be armed; today, it could well be foolhardy for an officer to assume otherwise." United States v. Clark, 24 F.3d 299, 55 CrL 1256, (D.C. 1994).



Within the scope of a lawful traffic detention, police may examine the vehicle identification number, as well as license and registration documents, without any particular suspicion. New York v. Class, 475 U.S. 106 (1986). However, after concluding the reason for the traffic stop the officer cannot detain a driver and conduct a dog sniff of their car in the absence of consent or reasonable suspicion of drug activity. The scope and duration of a search must be strictly tied to the reasons for the stop. When the stop is for a traffic violation, detaining the suspect for the time (duration) it takes to call on a drug sniffing dog, in the absence of reasonable suspicion is unreasonable. State v. Chapman, 23 Kan. App. 2d 999 , 939 P.2d 950 (1997). The preferred way to conduct such an activity is to turn it into a voluntary encounter by telling the suspect he is free to go, then asking the individual if he or she has drugs, large amounts of cash or weapons in the car. The Fourth Amendment does not require that a lawfully seized defendant be advised that he is "free to go" before his consent to search will be recognized as voluntary, Ohio v. Robinnette, 519 U.S. 33, 35, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), but if the court determines there was no reasonable suspicion for further detention, the consent will be invalid and fruits of any subsequent search will excluded.



State v. Mitchell, 265 Kan. 238, 960 P.2d 200 (1998). A traffic stop is more analogous to investigative detention than custodial arrest. Governed by Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968) standards. However, when stop exceeds scope and duration of reasonable traffic stop and proceeds into an interrogation about drugs, evidence later recovered must be suppressed.



Terry can justify a search of a passenger compartment of an automobile. In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), police approached a man who had driven his car into a ditch and who appeared to be under the influence of some intoxicant. As the man moved to reenter the car from the roadside, police spotted a knife on the floorboard. The officers stopped the man, subjected him to a patdown, and then inspected the interior of the vehicle for other weapons. During the search of the passenger compartment, the police discovered an open pouch containing marijuana, and seized it. The Supreme Court upheld the validity of the search and seizure under Terry, holding that, in the context of a roadside encounter, where police have reasonable suspicion based on specific and articulable facts to believe that a driver may be armed and dangerous, they may conduct a protective search for weapons not only of the driver's person, but also of the passenger compartment of the automobile. Long, 463 U.S., at 1049.

There is no set time limit on the detention's length as long as it is done in a reasonable and diligent manner to quickly confirm or dispel the officers suspicion. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it. United States v. Sharpe, 470 U.S. 675 84 L.Ed.2d 605, 105 S.Ct. 1568 (1985)

An officer may demand of the name, address of such suspect and an explanation of such suspect's actions. They may ask their questions in a way calculated to obtain an answer. But they may not compel an answer, and they must allow the person to leave after a reasonably brief period of time unless the information they have acquired during the encounter has given them probable cause sufficient to justify an arrest. Kolender v. Lawson, 461 U.S. 352, 366, 75 L.Ed.2d 903. 103 S.Ct. 1855 (1983); State v. Latimer, 9 Kan.App.2d 728, 731, 687 P.2d 648 (1984). If an officer approaches an individual and asks for the their and identification, and the individual refuses to identify themselves, can the officer charge the individual with interference or obstruction? Generally, in the absence of reasonable suspicion of criminal activity, the answer is no -- the individual is free to refuse to answer and walk away. Brown v. Texas, 443 U.S. 47, 53, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Latimer, 9 Kan.App.2d at 731. However, the refusal to answer may "alert the officer to the need for continued observation." Latimer, 9 Kan.App.2d at 731, and may support continued detention depending on the facts and circumstances of each case. See K.S.A. 22-2402(a); State v. Marks, 226 Kan. 704, 707-08, 602 P.2d 1344 (1979). If there is probable cause to arrest and the person gives the officer a false name and has no identification to verify the name, these facts may support an obstruction charge. Latimer, 9 Kan.App.2d at 733.

Officer's superiors instructed all officers to ascertain the identity of individuals loitering in a public place near business buildings late at night because of burglaries. The time was 4:00 a.m. and the person, who later turned out to own the business, would not give his name. Instead of giving his name he pushed his way by the officer. The court said permissible Terry stop and arrest for obstruction. City of Garden City v. Mesa, 215 Kan. 674 527 P.2d 1036 (1974). NOTE: If no push by defendant, then no obstruction, then no continued detention. Remember, after dispel terry suspicions then suspect is free to go

D. Action short of a stop

Not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred. Terry, 392 U.S. at 1, n.16. During a public contact with a person, officers may acquire such evidence as observations of behavior (slurred speech, nodding off, sniffing, etc.) and physical characteristics (height, weight, tattoos, injection marks, etc.), and may obtain incriminating admissions from the person contacted. In themselves, or combined with other information, these observations and admissions may provide justification for detention, search or arrest. Consensual encounters involve no restraint on liberty and, therefore, no Fourth Amendment "seizure":

Lack of any element of coercion, followed by voluntary compliance with requests, does not result in a Terry stop. Walking up to an airline passenger, identifying themselves as federal drug agents, and asking the passenger to see her identification and airline ticket which she produced, was not a "stop" or "seizure" based on the totality of the circumstances. Mendenhall, 446 U.S. at 555.

An officer can approach a parked vehicle and during the course of a criminal investigation and request identification from an individual inside the car without making a stop or detention of the vehicle. Marks, 226 Kan. at 710.

E. Grounds for a permissible stop

The reasonable articulable suspicion must be based upon facts known to or observed by the officer prior to the stop. State v. Jackson, 213 Kan. 219, 515 P.2d 1108 (1973). The knowledge of one law enforcement officer is imputed to fellow officers. State v. Niblock, 230 Kan. 156, 161, 631 P.2d 661 (1981)(Sheriff officer in one county observed facts that when taken together with facts observed by sheriff officer in another county amounted to reasonable suspicion although facts were not specifically relayed); United States v. Troutman, 458 F.2d 217 (10th Cir. 1972)(collective information of all law enforcement officers).

Inchoate and unparticularized suspicion or hunches will not suffice. State v. Finley, 17 Kan. App. 246, 838 P.2d 904 (1992).

Traveling in tandem with another vehicle on a high drug trafficking highway in a heavily loaded camper with covered windows and the vehicle's sped up when a marked patrol car (without emergency lights activated) followed the vehicle. Taken together, as appraised by an experienced law enforcement officer, they provided clear justification to stop the vehicle and pursue a limited investigation. United States v. Sharpe, 470 U.S. 675 84 L.Ed.2d 605, 105 S.Ct. 1568 (1985)

Ulterior motives on vehicle stops do not render the stop illegal. As long as a vehicle stop is based on an observed traffic violation, any subjective additional motive, such as suspicion of drug trafficking, is irrelevant to the legality of the stop. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Guy, 242 Kan. 840 (1988).

A "drug courier profile" may be used to justify an investigative detention, if the circumstances amount to reasonable suspicion. United States v. Sokolow, 490 U.S. 1 (1989). However, due to abuse and inconsistent use of"profiling" factors, courts are hesitant to accept profiling as a basis for a valid stop so it is best to rely upon something other than a profile.

F. Frisk for weapons

Determination that reasonable, articulable suspicion of criminal activity does not automatically justify any search of the person or effects of the detainee (contrast searches incident to arrest, infra), and must last no longer than necessary, considering their purpose and the diligence of police. U.S. v. Sharpe, 470 U.S. 675 (1985).

G. Roadblocks

While disapproving random, suspicion less vehicle stops at the discretion of officers in Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme Court held, in Michigan v. Sitz, 496 U.S. 444 (1990), that checkpoint detentions, free of uncontrolled police discretion, could be constitutionally conducted to detect intoxicated drivers. See State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983).

H. Detention at Police Station for investigation

Generally, Terry stops are limited to "street" encounters. Picking someone up and bringing them to the police station for identification or questioning generally goes outside the Terry realm and is analyzed under Miranda custodial interrogation rules. Thus, where defendant confessed after being picked up and brought to the station for a brief period of questioning, the Court rejected the argument that such a seizure must be supported only by reasonable suspicion of criminal activity. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). However, brief detentions for investigative purposes may be authorized by a court order. See Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

I. Brief Seizure of objects

"Detentions" of property are also permissible. United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970)(detention of suspicious coins at post office for 29 hours to obtain a warrant); United States Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)(brief detention of drug runner's luggage in an airport to await a drug sniffing dog).

J. Cite and Release

As noted above in the section dealing with statutory bases for arrests, Kansas law prohibits arrests for most traffic infractions (those offenses listed in K.S.A. 1998 Supp. 8-2118(c)), and instead makes them a "cite and release" offense unless the person has once failed to appear on the charge. K.S.A. 1998 Supp. 12-4212(b); K.S.A. 1998 Supp. 22-2401(d). Notable exceptions on that list include eluding a law enforcement officer, seat belt violations, expired tags, reckless driving, suspended driver's license, and no driver's license. Officers may only arrest for infractions when the person refuses to give a written promise to appear in court when served with a notice to appear; the person is unable to provide identification of self by presenting a valid driver's license or other identification giving equivalent information to the law enforcement officer; the person is not a resident of the state of Kansas; or the law enforcement officer has probable cause to believe that the person may cause injury to self or others or may damage property unless immediately arrested.

Keep in mind that you can "unarrest" someone. Kansas law specifically recognizes this right when the officer is satisfied there are no grounds for a criminal complaint against the person arrested. K.S.A. 22-2406. However, you can still be sued for false arrest if there was no reasonable basis for the initial stop and subsequent detention.

While the law allows for arrest when the person refuses to give a written promise to appear in court when served with a notice to appear, agency policy is to simply write "refused" where the person ordinarily signs the citation and serve it upon them.

Where someone does not actually have a driver's license or other sufficient identification on their person, they should be arrested in order to obtain a positive identification. It is certainly not uncommon for persons to lie about their identity to escape detection of felony or misdemeanor warrants for their arrest.

Nonresidents are normally not arrested or required to post a cash bond or surrender their driver's license in lieu of a bond. The Nonresident Violator Compact in K.S.A. 8-1219 through 8-1222 instead allows motorists from compacting states to accept the citation and continue upon their way just a resident would. If the nonresident fails to satisfy his or her Kansas citation, their driver's license in their home state is suspended until the violation is satisfied. K.S.A. 8-1219.

The last exception to cite and release, probable cause to believe that the person may cause injury to self or others or may damage property unless immediately arrested, allows officers to deal with irate persons who become so uncooperative that more drastic measures than cite and release become necessary.

See attachments for guidelines on shoplifting arrests.

VIII. Special Problems

A. Domestic Situations

You have probably heard there is a "mandatory arrest" policy for domestic violence situations. (See General Order O06 and K.S.A. 22-2307, and amendments thereto). That statement, in an of itself, is somewhat misleading as applied to misdemeanor domestic situations. By all means, arrest any felony domestic violence aggressor situation (agg. assault, agg. battery, etc.), but what if only the aggressor has committed only a misdemeanor (simple assault, simple battery, domestic battery, criminal damage to property, criminal trespass, violation of a restraining order)? The policy still dictates an arrest, but any arrest still must comply with K.S.A. 22-2401 and amendments thereto. Therefore, when the suspect has committed only a misdemeanor and you arrest them, you must articulate in your reports probable cause for believing the person will not be apprehended or evidence of the crime will be irretrievably lost unless the person is immediately arrested; or the person may cause injury to self or others or damage to property unless immediately arrested; or the person has intentionally inflicted bodily harm to another person. If no facts exist to establish probable cause for such a belief, do not make an arrest and explain why in your report. See General Order O06, ¶ 4. Failure to properly articulate the basis for a misdemeanor arrest can get you sued for false arrest. See Key v. Hein, Ebert & Weir, Chtd., 265 Kan. 124 (1998).

Another domestic situation that merits discussion is cases of mutual combat. Do you (a) arrest both participants? (b) do nothing and don't arrest anyone? or (c) strive to determine who was the primary aggressor and who acted in self defense? The only acceptable answer is option (c).

Option (a) usually results from a failure to do a satisfactory investigation. One party is almost always a physical aggressor. Don't further victimize the victim by arresting him or her. Option (b) violates K.S.A. 22-2307 and General Order O06. Option (c) is the best option. Try to determine which party, if any, acted in self-defense. Only when both parties have clearly engaged in aggressive, non-defensive behavior should a dual arrest be considered.





Original edition published July 1, 1999. Rev. 7/14/99, Rev. January 5, 2000.



Detailed Table of Contents

Legal Aspects of Arrest 1

I. Introduction 1

II. Definitions 1

A. Arrest 1

B. Detention 2

C. Probable Cause 2

D. Reasonable Suspicion 2

E. Terry Stop 2

III. Types of Policed-Citizen Encounters 2

Police-Citizen Encounter Matrix 2

IV. Legal Standards justifying arrest 2

A. Statutory Provisions 2


1. K.S.A. 1998 Supp. 12-4212 (CITIES AND MUNICIPALITIES Article 42.--CODE FOR MUNICIPAL COURTS; PROSECUTION AND ARREST), and amendments thereto:
3

2. K.S.A. 1998 Supp. 22-2401 (KANSAS CODE OF CRIMINAL PROCEDURE), and amendments thereto:
3

3. Section A10-26 of the Code of the City of Topeka (1994), as amended, 4

4. K.S.A 12-4211 (CITIES AND MUNICIPALITIES Article 42.--CODE FOR MUNICIPAL COURTS; PROSECUTION AND ARREST), and amendments thereto:
4

5. K.S.A. 8-2118
5

II. Probable Cause 5

A. Generally 5

B. Nature of Probable Cause 5

C. Informant Information 6

D. Victim/Witness Information 6

E. Information from/held by other officers 7

F. First-hand information 7

1. Association with known criminal.
7

2. Furtive Gestures.
7

3. Flight from a LEO.
7

V. Do you need a warrant? 7

A. In a home 7

1. Entry and Search of Premises 7

2. Basis for entry to arrest 8

a. Arrest Warrants 8

b. Arrests based on Probable Cause and Exigent Circumstances 8

3. Entry without notice to arrest 9

4. Search before and incident to arrest 9

5. Search and exploration after arrest 10

B. After a car stop 10

1. Search and seizure of vehicles 10

2. Search incident to arrest 11

3. Search and seizure to search for evidence 11

4. Search of containers and persons within 11

5. Seizure for other purposes 11

a. Forfeiture 11

b. Other Impounds 12

VI. Use of force in making an arrest 12

K.S.A. 22-2405 12

K.S.A. 21-3215 12

K.S.A. 21-3217 13

A. Stop and Frisk and Similar Lesser Intrusions 13

B. Stop and frisk: Fourth Amendment Theory 13

C. Dimensions of a permissible stop 14

D. Action short of a stop 16

E. Grounds for a permissible stop 16

F. Frisk for weapons 17

G. Roadblocks 17

H. Detention at Police Station for investigation 17

I. Brief Seizure of objects 17

J. Cite and Release 18

VIII. Special Problems 18

A. Domestic Situations 18

1. . This statute states: "When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of (a) Protecting the officer from attack; (b) Preventing the person from escaping; or (c) Discovering the fruits, instrumentalities, or evidence of the crime.

2. . (1) Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect's actions.

(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that such officer's personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, such officer may take and keep it until the completion of the questioning, at which time such officer shall either return it, if lawfully possessed, or arrest such person.