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Ch 1 Why We Have Law (1.17.08)

Ch 1 Why We Have Law (1.17.08) - CHAPTER 1 WHY WE HAVE LAW...

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1 CHAPTER 1: WHY WE HAVE LAW Order Maintenance Arizona v. Graciano , 134 Ariz. 35 (1982). On March 7, 1981, Graciano was driving a four-by-four Ford pickup truck on Interstate 19, approximately 18 miles north of the Arizona-Mexico border, near Nogales, Arizona. When first seen by Highway Patrol Officer Gordon Hopke, Graciano was headed south toward the border; Officer Hopke was northbound. As soon as he saw Graciano's vehicle, the officer made a U-turn in the median, switched on his red, flashing light, and stopped Graciano. After the stop, the officer learned that the vehicle was stolen and Graciano was then arrested. Graciano was convicted of theft of a vehicle valued at more than $1,000. He was placed on five years' probation. At the pretrial hearing, the arresting officer testified that Graciano had not driven the vehicle in an improper or suspicious manner. No traffic violation or criminal activity of any kind had been observed. The officer admitted that the sole reason for the stop was to determine whether the vehicle was stolen. Graciano argues that since the stop was investigatory in nature, it was an intrusion which violated his U.S. Constitutional Fourth Amendment right to be free from unreasonable search and seizure. The United States Supreme Court held that while an investigatory stop of a pedestrian fell short of a technical arrest, it was a restraint on the detainee's freedom of movement which constituted a "seizure" of the person under the Fourth Amendment. Similarly, an investigatory stop of a motor vehicle constitutes a seizure for Fourth Amendment purposes. Such investigatory stops are less intrusive than actual arrests and therefore may be made under circumstances which would not be sufficient to constitute "probable cause" for the issuance of an arrest warrant. The facts sufficient to justify an investigatory stop such as the one in question will differ from case to case, but courts agree that a stop must be based upon what is variously described as a "particularized" or "founded" suspicion by the officer, who must be able to state an "articulable reason" for the stop. The United States Supreme Court characterized this analysis as a two-prong totality of the circumstances test. The first part of the test requires an assessment of all the circumstances. This assessment may be based upon some degree of subjectivity involving the application of the officer's training and experience, plus any number of objective factors such as the modes or patterns of operation of certain kinds of lawbreakers, the officer's observation of suspicious conduct, the suspect's presence near the scene of a recent crime and information received from informers or other officers. An assessment of all the circumstances, however, does not include a weighing of the officer's "unparticularized suspicions" or hunches about a suspect or situation. The second part of the test requires that the above assessment raise a justifiable suspicion that the particular individual to be detained is involved in criminal activity.
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