Did the Officers Have Probable Cause to Arrest?

Did the Officers Have Probable Cause to Arrest?

Samaha CJ 7e

Chapter 7

Did the officers have probable cause to arrest?

In People v. Washington, the defendant, Michael Washington, appealed the judgment entered in the Superior Court of the City and County of San Francisco revoking his probation and sentencing him to three years in prison. The revocation of probation and the sentence were based on the finding that Washington possessed cocaine. On appeal, Washington argued that the cocaine used against him at the probation revocation hearing was the product of an illegal arrest because the officers did not have probable cause to arrest him. The following is taken from the court’s opinion: Officers Lewis and Griffin were in the vicinity of 1232 Buchanan Street. They observed defendant along with four other individuals in a courtyard area between 1133 Laguna and 1232 Buchanan.

Defendant and the others were observed talking in a “huddle” formation with “a lot of hand movement” inside the huddle, but the officers could not see what was in the hands of any member of the group. The officers then walked toward the group, at which point everyone looked in the officers’ direction, whispered, and quickly dispersed. When defendant saw the officers, he immediately turned around and started walking at a fast pace through the lobby of 1232 Buchanan. The officers followed him for a quarter of a block when Officer Griffin called out to defendant. Defendant replied, “Who me?” Officer Griffin answered, “Yes,” and defendant immediately ran away. The officers gave chase. Two minutes later, while still chasing defendant, Officer Lewis saw defendant discard a plastic bag containing five white bundles. Officer Lewis scooped up the bag as he continued to give chase. Shortly thereafter, the officers apprehended defendant.

During the probation revocation hearing, Officer Lewis testified that during the four years he had been a patrolman he had made at least 100 arrests concerning cocaine in the area frequented by defendant that night. On cross-examination, Officer Lewis answered in the affirmative when asked if most of the black men he saw in the area usually had something to hide if they ran from police. The officer stated that prior to the chase he saw no contraband, nor was anything about the group’s dispersal significant. Nor did the officer explain why they singled out defendant to follow. The trial court denied defendant’s motion to suppress and revoked the defendant’s probation.


Prior to defendant’s abandonment of the cocaine, the police lacked the “articulable suspicion that a person has committed or is about to commit a crime.” The officers spotted the group of men in an open courtyard at 6:15 P.M.; the men made no attempt to conceal themselves and did not exhibit any furtive behavior.

The hand gestures were, on the police officer’s own testimony, inconclusive and unrevealing. Furthermore, the time at which the detention occurred is not the “late or unusual hour . . . from which any inference of

The Manner of Arrest—Entering Homes and Using Force

The reasonableness of an arrest depends not only on probable cause but also on the manner in which the police execute the arrest. The reasonableness of the manner of arrest arises primarily in two situations: 1. When the police enter private homes to make arrests.

2. When the police use force against people to make arrests.

The Fourth Amendment requires officers to get a warrant before they enter private homes to arrest suspects. The Fourth Amendment also requires that officers follow the knock-andannounce rule. As the name implies, the rule requires that officers knock and announce their presence before they enter.

Also, officers have to allow occupants at least a brief time to get to the door. They need not wait for long; suspects might either flee out the back door, grab a weapon, or destroy evidence or contraband. So, police officers have not unreasonably seized a suspect if they obtain a warrant, knock on the door saying, “Open up, police”; wait 15 seconds; and then knock down the door, enter, and arrest the suspect named in the warrant.

Police use of force is a controversial, and difficult, subject.

We leave the problem of police use of force generally to Chapter 8. Here, we discuss only when the use of deadly force by the police is an unreasonable seizure. The U.S.

Supreme Court has ruled that the Fourth Amendment requires that police officers can only use reasonable force before, during, and after arrests. Historically, the fleeing felon doctrine governed the use of force. Under that doctrine, law enforcement officers could, if necessary, use deadly force to apprehend any fleeing felony suspect. The fleeing felon doctrine made sense in medieval England where there were few felonies, all of them capital; guns were rare; and lack of technology made it difficult to apprehend criminals. In the centuries that followed, a long list of noncapital, nonviolent felonies was enacted, applying the doctrine to many more crimes. Also, police forces armed with guns were created, making the chance of killing fleeing suspects more likely. Finally, advances in communications technology increased the tools police could use to apprehend escaped felony suspects.

Despite these fundamental changes, most American states retained the fleeing felon doctrine until the 1960s.

The civil rights movement, the corresponding heightened concern for the rights of criminal defendants, and the loss of life during the urban riots of the 1960s coalesced to cause a reevaluation of the fleeing felon doctrine. Changes in the doctrine occurred formally by means of statutes, administrative rules, and court decisions. Most statutes limited the doctrine to “forcible felonies.” By 1985, about half the states had adopted statutes limiting the use of deadly force.

In 1985 the U.S. Supreme Court, in the landmark case of Tennessee v. Garner, ruled that the fleeing felon doctrine is unconstitutional. Because half the states had already outlawed its use and most urban departments had already restricted the doctrine, the decision affected primarily medium-sized and small towns and rural areas. The follow-criminality may be drawn.” The fact that defendant was seen in what was a high crime area also does not elevate the facts into a reasonable suspicion of criminality.

Courts have been “reluctant to conclude that a location’s crime rate transforms otherwise innocentappearing circumstances into circumstances justifying the seizure of an individual.” Once the officers made their approach visible, they gave no justification for their decision to follow defendant apart from the others in the group. Neither officer knew defendant or knew of defendant’s past criminal record, nor did Officer Lewis testify that defendant appeared to be a principal or a leader in the group. Further, the defendant had the right to walk away from the officers. He had no legal duty to submit to the attention of the officers; he had the freedom to “go on his way,” free of stopping even momentarily for the officers.

By walking at a brisk rate away from the officers, defendant could have been exercising his right to avoid the officers or avoid any other person, or could have simply walked rapidly through sheer nervousness at the sight of a police officer.

We see no change in the analysis when defendant decided to run from the officers. Flight alone does not trigger an investigative detention; rather, it must be combined with other objective factors that give use to an articulable suspicion of criminal activity. No such factors existed, nor does Officer Lewis’s assertion that the “black men [they] see in the project usually have something to hide when they run” justify a detention.

“Mere subjective speculation as to the [person’s] purported motives . . . carries no weight.” Thus, prior to defendant’s abandonment of the contraband, the circumstances of defendant’s actions were not reasonably consistent with criminal activity. . . .

. . . The officers conceded they had no objective factors upon which to base any suspicions that the group was involved in illegal activity, and the officers offered no explanation why they singled out defendant to follow.

Indeed, the only justification for engaging in pursuit was that defendant was a black male, and that it was the officer’s subjective belief that black men run from police when they have something to hide. Thus, a single factor—the defendant’s race—triggered the detention.7


1. What were the facts on which Officers Lewis and Griffin based their arrest?

2. Assume you are the prosecutor in the case. How would you try to convince the judge that the arrest was legal?

3. Now assume you are the defense counsel. How would you argue that the arrest was illegal? Now you are the judge. How would you decide the case?

Write an opinion explaining your decision.