Teacher's Manual
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Lesson 6 What Does Probable Cause Mean and How is it Applied to Searches and Seizures?
Time Needed: 45–60 minutes
Objective
Activity 1: Readings on probable cause and warrantless searches based on probable cause and questions to answer in the student manual
Activity 2: Group activity discussing cases and presentation to the class
Activity 3: Terry v. Ohio recording, class discussion, and group consideration of questions in student manual
Today’s Lesson
Please begin this lesson by asking the students what the Fourth Amendment requires of the government before it can conduct a search or an arrest (seizure).
Activity 3 (Students can remain in their groups.)
If you have a class that you think might benefit from discussing a recent Massachusetts Supreme Judicial Court case involving a vehicle stop where several courts considered whether race played a role in the search of the suspect, please read on. While this case was decided 4:3 in favor of the Commonwealth and the search was deemed to be justified, the decision was contentious. I include here an excerpt from a news report about the case and then provide you with all of the information about the case that the students would need to discuss it below:
“Writing for the majority of the court, Justice Elspeth Cypher wrote that all of those factors combined – Paris’ uncharacteristic behavior, the men’s history with firearms and gangs, and the high-crime area – were enough to provide reasonable suspicion to search Sweeting-Bailey. “Although each of these factors standing alone would be insufficient to justify the pat frisk of the defendant, the totality of these factors justified…the pat frisk,” Cypher wrote.’
“Cypher wrote that the court is concerned about the disparate impact traffic stops have on people of color, and the decision does not mean any occupant of a car may be searched based on the conduct of their companion. But she wrote that the specific facts in this case created a reasonable suspicion that the passengers were armed and dangerous.”
“In a concurrence, Justice Dalila Wendlandt said explicitly that while racial disparities in the criminal justice system are stark and unacceptable, this case is not about racism. “Today’s decision does not allow officers to stop and pat frisk drivers or passengers simply because they are Black or Brown, and today’s decision does not rest on stereotypes,” wrote Wendlandt, the first Latina to serve on the state’s highest court. “It neither solves systematic racism nor contributes to it.” She wrote that Sweeting-Bailey does not claim the stop was racially motivated, and the specific facts in the case justify the police’s suspicion.
“But Budd, in her dissent, vehemently disagreed that race played no role. Budd said the more straightforward explanation for Paris’ behavior was not that he was trying to divert attention from a weapon in the car, but that he believed the police were unfairly harassing him.”
‘Budd argued that the actions of the police were based on speculation, not fact, and do not meet the standard of reasonable suspicion. She worried that the court’s decision allowing the actions of the police will increase racial disparities in policing by inviting officers “to pat frisk first and invent explanations later.”’
“It does not, of course, expressly authorize officers to pat frisk a person simply because of his or her race,” Budd wrote. “The racial disparities in our criminal justice system are decreasingly the product of overt racism or facially discriminatory rules. These persistent disparities are, rather, more and more the product of neutral rules of deference that affirm the decisions of racially biased actors.”
‘The dissent of Justice Frank Gaziano, who was joined by Black justice Serge Georges, argues that the police in this case acted based on speculation, not facts. While Gaziano’s dissent does not focus on race, it too shares Budd’s concerns that in its majority ruling “the court disregards the adverse impact its decision will have on individuals and communities of color.”’
If you think that discussing this case would be productive for your class, please provide the students with the background material below for the Commonwealth v. Zahkuan Sweeting-Bailey case. They can discuss it in their groups and present their conclusions to the class and then discuss it more as a class. You will find this in Fourth Amendment Unit – Handouts from which it can be easily printed.
Material for Commonwealth vs. Zahkuan Sweeting-Bailey
All text below is quoted from the case. Our explanations are in bold and in parentheses.
General Description of the Case:
“Following a routine traffic stop for an improper lane change, the defendant, Zahkuan Sweeting-Bailey, who had been a rear seat passenger in the vehicle, was ordered out of the vehicle and was pat frisked. Although the stop began as routine, when officers approached the vehicle, the front seat passenger immediately got out of the car, engaged in an argument with the officers, and took a threatening fighting stance. The officers, who were familiar with that passenger from prior encounters, found his angry outburst highly suspicious and believed he was trying to distract them from the vehicle because there was a firearm inside.
The three male passengers in the car, including the defendant, were known to the officers as gang members with prior involvement with firearms. (Based upon this and the heightened suspicion that they felt on the basis of the unusual behavior of the passenger in the front seat, the officers decided to search all of the passengers.) During the pat frisk of the defendant, an officer found a firearm tucked into the waist of his pants, and he was arrested. The defendant was indicted on a number of firearm offenses.
After a judge in the Superior Court denied the defendant's motion to suppress, he entered a conditional guilty plea (this means it was conditional on the evidence not being excluded on appeal) to the charges of possession of a firearm without a license and possession of a large capacity feeding device (device to allow his weapon to fire many shots without reloading), and the other charges were dismissed. The defendant appealed from his convictions, and the Appeals Court affirmed. We granted the defendant's application for further appellate review. After considering the facts and inferences as a whole, we conclude that the officers had reasonable suspicion, based on specific, articulable facts, that the defendant might have been armed and dangerous. Commonwealth v. Gomes, 453 Mass. 506, 511 (2009). Accordingly, we affirm the order denying the defendant's motion to suppress.
Below is the detailed “Background” presented in the actual court case. If the students will be discussing the case, they should have this material.
Background
At approximately 7 P.M., on a February evening, three detectives from the New Bedford police department's gang unit, Kory Kubik, Gene Fortes, and Roberto DaCunha, reported that they observed a red sedan change lanes abruptly, causing another vehicle to slam on its brakes in order to avoid a collision. The officers followed the sedan as it turned into the parking lot of a fast food restaurant, activated their lights, and initiated a traffic stop. At that point, the officers did not know who was in the red sedan.
The vehicle was parked facing toward the restaurant, and the entrance to the restaurant was on the driver's side. Once the vehicle stopped, but before the officers approached, one of the passengers, Raekwan Paris, got out of the vehicle and began pacing between the officers and the vehicle on the passenger side, walking away from the entrance to the restaurant. Paris was angrily confronting them regarding the reason for the stop. The officers were familiar with Paris from previous encounters, including field interrogations and arrests for firearm offenses. In the past, they had observed that he was cooperative and polite. At the time of this stop, Paris had been released on bail for a 2016 firearm charge. Both Kubik and DaCunha had been involved in the 2016 arrest and recalled that Paris's demeanor had been calm and cordial during that encounter. Kubik also had interacted with Paris during two different traffic stops and had found his demeanor to be similarly cooperative and calm. (Detective) Fortes, previously a school resource officer, had known Paris “since he was a young kid.” Fortes had seen Paris at school events over the years and recalled that he had “always had a good rapport” with Paris. Additionally, Fortes had had interactions with Paris during car stops and field interrogations. Fortes described Paris as "respectful" during all encounters.
During this encounter, DaCunha instructed Paris three times to reenter the car, but he refused. While two of the officers were occupied with Paris, the third attempted to approach the driver's window to speak with the female driver, but became concerned by the “escalating” situation between Paris and the other officers. The officers noted that they were unable to address the reason for the stop because of Paris's behavior. They observed that he was “becoming more angry.” Fortes testified that, at this time, they were entirely focused on Paris: “his behavior was so agitated . . . and different that all my focus was – was really on him.” Fortes also testified that Paris took “a bladed stance” and that he was unsure if Paris was “getting ready to attack” him. Fortes observed that Paris was “sizing [him] up” and found this behavior to be “very uncharacteristic of him.” The officers also observed that Paris had “a closed, clenched fist” before he was handcuffed and that Paris did not appear to be intoxicated.
Paris was brought to the rear of the red sedan, handcuffed, and pat frisked. Only then were the officers able to turn their attention to the occupants of the car. The officers issued an exit order and conducted a pat-frisk of the driver and the two remaining passengers. Although Fortes testified that Paris “calmed down a little” after he was brought to the back of the car, it is important to note that from the time Paris had gotten out of the car to the time the defendant was asked to get out of the car, only ninety seconds had elapsed.
The three male occupants of the vehicle were familiar to the officers at the time of the stop. Two of the officers had been involved in an incident about eighteen months earlier in which Paris had been arrested on two firearms-related charges. Officers had information that the back seat passenger, Carlos Cortes, had posted pictures of a firearm on social media within the previous month and were aware that the defendant had a three year old juvenile adjudication for an offense involving a firearm. Additionally, the officers were aware that Paris was listed in their gang database as a member of two gangs, the United Front and Bloods. The officers also were aware that the defendant was listed in their gang database as a member of the Bloods gang, and that Cortes was listed in their gang database as a member of a gang in Fall River.”
Time Needed: 45–60 minutes
Objective
- SWBAT understand when a law enforcement officer has probable cause to get a warrant to search or arrest you versus when they do not need to obtain a warrant before searching and possibly arresting you.
- SWBAT understand the distinction between warrantless searches that are based upon probable cause and those based only upon reasonable suspicion.
- Teacher’s computer with loud enough volume to play a recording.
- In preparation for Lesson 7, prepare a hat filled with 20 pieces of paper labeled 1a, 1b, 2a, 2b, 3a, 3b, 4a, 4b, 5a, 5b, 6a, 6b, 7a, 7b, 7c, 7d, 7e, 7f, 8a and 8b so that cases for Lessons 8 and 9 can be assigned to the students by drawing them from the hat at the end of Lesson 7.
Activity 1: Readings on probable cause and warrantless searches based on probable cause and questions to answer in the student manual
Activity 2: Group activity discussing cases and presentation to the class
Activity 3: Terry v. Ohio recording, class discussion, and group consideration of questions in student manual
Today’s Lesson
Please begin this lesson by asking the students what the Fourth Amendment requires of the government before it can conduct a search or an arrest (seizure).
- The government must first obtain a warrant from a magistrate based upon probable cause to comply with the reasonableness standard compelled by the Fourth Amendment.
- The law enforcement officer requesting a warrant must sign an oath that they are being truthful in the evidence that they are supplying to support their request for a warrant. This is called an affidavit.
- Ask the students to go into their groups and read the sections “When Does a Law Enforcement Officer Have Probable Cause to Conduct a Search or Make an Arrest?” and “Warrantless Searches Based on Probable Cause” and then discuss the questions at the end of this material and write down their answers.
- Once they have completed this, ask each group for their answer to one of the questions and if they are incorrect please ask another group if they have a different answer or if necessary correct any misunderstanding.
- Ask the groups to turn back to p. 25 in their manuals to the three cases that they were assigned to read for homework.
- Have three students each read one case each aloud to the class.
- Remind the students that for each example the officer had to have probable cause to conduct each of the arrests.
- Ask the groups to consider what type of search(es) the officer was conducting in each example and whether the officer had probable cause to carry out the search(es) and make the arrest(s)in each example.
- Ask them to record the details that help them to reach their conclusions.
- Have each group present its decision for one case.
Activity 3 (Students can remain in their groups.)
- Tell the students that there are two types of searches that do not require a warrant in which the level of suspicion is lower than probable cause. These searches need only be based upon a reasonable suspicion. One of these is called a Terry Stop or stop-and-frisk.
- Tell the students that they will listen to the story of the first Terry Stop in a podcast by Cedric Hopkins Esq. and ask them to pay close attention to exactly how it was carried out.
- Begin playing the podcast at 1:35. https://www.thepeoplevpodcast.com/episodes/episode/23790add/episode-1-terry-v-ohio-stop-and-frisk-law and stop it at 6:51 minutes. Resume the podcast after two discussion questions.
- Ask the students whether based upon what they have learned so far about searches and when they are justified, they can identify steps that the officer took which are allowed.
- Then ask if there was anything that the officer did that would not be allowed. Tell students that now they will hear what SCOTUS decided in Terry v. Ohio which became the legal basis for Terry Stops or “stop-and-frisk” searches.If you would like the students to learn more about the historical context in which the decision was made and have two more minutes, you can resume the recording at 6:51. Otherwise, resume playing the podcast from 8:20 and stop it at 11:20.
- After listening to the decision, ask the students to get into their groups. Tell them to read the sections: “Searches Based Upon a Reasonable Suspicion” and “Concerns about the Racial Equity of Stop-and-Frisks and Vehicle Searches” and then to discuss and write down their group answers to the questions under “Questions about Terry v. Ohio.” When they have finished, ask the groups to present their answers.
- Tell the students that in Massachusetts, if you are operating a vehicle, you must identify yourself with your complete name if you are stopped by a law enforcement officer; and that it is also illegal, if stopped by a police officer at any time, to give them a false name, address, Social Security number or date of birth.
- Please ask the students to review the vocabulary list for Lesson 7 which appears in Lesson 7 of their handbook and to explain how accurate data collection about crime and law enforcement enables us to better protect the Constitutional rights of minority groups in the United States.
- Optional Assignment: If the teacher would like, they may ask the students to read the five-page supplementary “Know Your Rights” guide prepared by the Electronic Frontier Foundation to inform people specifically of their rights when it comes to a search of computers, phones or other digital devices which the students will find on pages 39 to 44 of the Student Manual.
If you have a class that you think might benefit from discussing a recent Massachusetts Supreme Judicial Court case involving a vehicle stop where several courts considered whether race played a role in the search of the suspect, please read on. While this case was decided 4:3 in favor of the Commonwealth and the search was deemed to be justified, the decision was contentious. I include here an excerpt from a news report about the case and then provide you with all of the information about the case that the students would need to discuss it below:
“Writing for the majority of the court, Justice Elspeth Cypher wrote that all of those factors combined – Paris’ uncharacteristic behavior, the men’s history with firearms and gangs, and the high-crime area – were enough to provide reasonable suspicion to search Sweeting-Bailey. “Although each of these factors standing alone would be insufficient to justify the pat frisk of the defendant, the totality of these factors justified…the pat frisk,” Cypher wrote.’
“Cypher wrote that the court is concerned about the disparate impact traffic stops have on people of color, and the decision does not mean any occupant of a car may be searched based on the conduct of their companion. But she wrote that the specific facts in this case created a reasonable suspicion that the passengers were armed and dangerous.”
“In a concurrence, Justice Dalila Wendlandt said explicitly that while racial disparities in the criminal justice system are stark and unacceptable, this case is not about racism. “Today’s decision does not allow officers to stop and pat frisk drivers or passengers simply because they are Black or Brown, and today’s decision does not rest on stereotypes,” wrote Wendlandt, the first Latina to serve on the state’s highest court. “It neither solves systematic racism nor contributes to it.” She wrote that Sweeting-Bailey does not claim the stop was racially motivated, and the specific facts in the case justify the police’s suspicion.
“But Budd, in her dissent, vehemently disagreed that race played no role. Budd said the more straightforward explanation for Paris’ behavior was not that he was trying to divert attention from a weapon in the car, but that he believed the police were unfairly harassing him.”
‘Budd argued that the actions of the police were based on speculation, not fact, and do not meet the standard of reasonable suspicion. She worried that the court’s decision allowing the actions of the police will increase racial disparities in policing by inviting officers “to pat frisk first and invent explanations later.”’
“It does not, of course, expressly authorize officers to pat frisk a person simply because of his or her race,” Budd wrote. “The racial disparities in our criminal justice system are decreasingly the product of overt racism or facially discriminatory rules. These persistent disparities are, rather, more and more the product of neutral rules of deference that affirm the decisions of racially biased actors.”
‘The dissent of Justice Frank Gaziano, who was joined by Black justice Serge Georges, argues that the police in this case acted based on speculation, not facts. While Gaziano’s dissent does not focus on race, it too shares Budd’s concerns that in its majority ruling “the court disregards the adverse impact its decision will have on individuals and communities of color.”’
If you think that discussing this case would be productive for your class, please provide the students with the background material below for the Commonwealth v. Zahkuan Sweeting-Bailey case. They can discuss it in their groups and present their conclusions to the class and then discuss it more as a class. You will find this in Fourth Amendment Unit – Handouts from which it can be easily printed.
Material for Commonwealth vs. Zahkuan Sweeting-Bailey
All text below is quoted from the case. Our explanations are in bold and in parentheses.
General Description of the Case:
“Following a routine traffic stop for an improper lane change, the defendant, Zahkuan Sweeting-Bailey, who had been a rear seat passenger in the vehicle, was ordered out of the vehicle and was pat frisked. Although the stop began as routine, when officers approached the vehicle, the front seat passenger immediately got out of the car, engaged in an argument with the officers, and took a threatening fighting stance. The officers, who were familiar with that passenger from prior encounters, found his angry outburst highly suspicious and believed he was trying to distract them from the vehicle because there was a firearm inside.
The three male passengers in the car, including the defendant, were known to the officers as gang members with prior involvement with firearms. (Based upon this and the heightened suspicion that they felt on the basis of the unusual behavior of the passenger in the front seat, the officers decided to search all of the passengers.) During the pat frisk of the defendant, an officer found a firearm tucked into the waist of his pants, and he was arrested. The defendant was indicted on a number of firearm offenses.
After a judge in the Superior Court denied the defendant's motion to suppress, he entered a conditional guilty plea (this means it was conditional on the evidence not being excluded on appeal) to the charges of possession of a firearm without a license and possession of a large capacity feeding device (device to allow his weapon to fire many shots without reloading), and the other charges were dismissed. The defendant appealed from his convictions, and the Appeals Court affirmed. We granted the defendant's application for further appellate review. After considering the facts and inferences as a whole, we conclude that the officers had reasonable suspicion, based on specific, articulable facts, that the defendant might have been armed and dangerous. Commonwealth v. Gomes, 453 Mass. 506, 511 (2009). Accordingly, we affirm the order denying the defendant's motion to suppress.
Below is the detailed “Background” presented in the actual court case. If the students will be discussing the case, they should have this material.
Background
At approximately 7 P.M., on a February evening, three detectives from the New Bedford police department's gang unit, Kory Kubik, Gene Fortes, and Roberto DaCunha, reported that they observed a red sedan change lanes abruptly, causing another vehicle to slam on its brakes in order to avoid a collision. The officers followed the sedan as it turned into the parking lot of a fast food restaurant, activated their lights, and initiated a traffic stop. At that point, the officers did not know who was in the red sedan.
The vehicle was parked facing toward the restaurant, and the entrance to the restaurant was on the driver's side. Once the vehicle stopped, but before the officers approached, one of the passengers, Raekwan Paris, got out of the vehicle and began pacing between the officers and the vehicle on the passenger side, walking away from the entrance to the restaurant. Paris was angrily confronting them regarding the reason for the stop. The officers were familiar with Paris from previous encounters, including field interrogations and arrests for firearm offenses. In the past, they had observed that he was cooperative and polite. At the time of this stop, Paris had been released on bail for a 2016 firearm charge. Both Kubik and DaCunha had been involved in the 2016 arrest and recalled that Paris's demeanor had been calm and cordial during that encounter. Kubik also had interacted with Paris during two different traffic stops and had found his demeanor to be similarly cooperative and calm. (Detective) Fortes, previously a school resource officer, had known Paris “since he was a young kid.” Fortes had seen Paris at school events over the years and recalled that he had “always had a good rapport” with Paris. Additionally, Fortes had had interactions with Paris during car stops and field interrogations. Fortes described Paris as "respectful" during all encounters.
During this encounter, DaCunha instructed Paris three times to reenter the car, but he refused. While two of the officers were occupied with Paris, the third attempted to approach the driver's window to speak with the female driver, but became concerned by the “escalating” situation between Paris and the other officers. The officers noted that they were unable to address the reason for the stop because of Paris's behavior. They observed that he was “becoming more angry.” Fortes testified that, at this time, they were entirely focused on Paris: “his behavior was so agitated . . . and different that all my focus was – was really on him.” Fortes also testified that Paris took “a bladed stance” and that he was unsure if Paris was “getting ready to attack” him. Fortes observed that Paris was “sizing [him] up” and found this behavior to be “very uncharacteristic of him.” The officers also observed that Paris had “a closed, clenched fist” before he was handcuffed and that Paris did not appear to be intoxicated.
Paris was brought to the rear of the red sedan, handcuffed, and pat frisked. Only then were the officers able to turn their attention to the occupants of the car. The officers issued an exit order and conducted a pat-frisk of the driver and the two remaining passengers. Although Fortes testified that Paris “calmed down a little” after he was brought to the back of the car, it is important to note that from the time Paris had gotten out of the car to the time the defendant was asked to get out of the car, only ninety seconds had elapsed.
The three male occupants of the vehicle were familiar to the officers at the time of the stop. Two of the officers had been involved in an incident about eighteen months earlier in which Paris had been arrested on two firearms-related charges. Officers had information that the back seat passenger, Carlos Cortes, had posted pictures of a firearm on social media within the previous month and were aware that the defendant had a three year old juvenile adjudication for an offense involving a firearm. Additionally, the officers were aware that Paris was listed in their gang database as a member of two gangs, the United Front and Bloods. The officers also were aware that the defendant was listed in their gang database as a member of the Bloods gang, and that Cortes was listed in their gang database as a member of a gang in Fall River.”
