ch05 revised with extra slides spring 2008

Policing: Legal Aspects

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CRIMINAL JUSTICE TODAY, 9E PRENTICE HALL By Frank Schmalleger ©2007 Pearson Education, Inc. 2

No one is above the law…not even

the police.

Policing: Legal Environment


Restraints on police behavior:

§  Help to ensure individual freedoms. §  Must be balanced against the need for police to effectively do their jobs.

Policing: Legal Environment


The U.S. Constitution, especially the Bill of Rights, is designed to protect citizens from abuses in police power.

Due Process is required by 4th, 5th, 6th, and 14th Constitutional Amendments.

Changing Legal Climate

THIS RIGHT IS GUARANTEED BY THIS AMENDMENT The right against unreasonable searches and seizures Fourth

The right against arrest without probable cause Fourth The right against self-incrimination Fifth The right against “double jeopardy” Fifth The right to due process of the law Fifth, Sixth, Fourteenth The right to a speedy trial Sixth The right to a jury trial Sixth The right to know the charges Sixth The right to cross-examine witnesses Sixth The right to a lawyer Sixth The right to compel witnesses on one’s behalf Sixth The right to reasonable bail Eighth The right against excessive fines Eighth The right against cruel and unusual punishment Eighth The applicability of constitutional rights to all citizens, regardless of state law or procedure

Fourteenth


There are three areas of police action that are infused with due process:

1.  Search and seizure of evidence 2.  Arrest 3.  Interrogation

Due Process Environment


The Warren Court (1953–1969): §  Clarified individual rights in the face of criminal prosecution. §  Was considered “liberal.”

Burger (1969–1986) and Rehnquist Courts (1986–2005):

§  Was more conservative. §  “Reversed” of some of the Warren-era decisions. §  Was called the “greater good” era. §  Adhered to the principle that defendants should bear most of the responsibility in showing the police went beyond the law.

Changing Legal Climate: U.S. Supreme Court


Courts often deal with issues involving rights.

Rights violations have become the basis for dismissal of charges, acquittal of defendants, or release of convicted offenders upon appeal.

Changing Legal Climate: U.S. Supreme Court


Landmark cases clarify the “rules of the game”—the procedural guidelines by which the police and the rest of the justice system must abide.

Landmark Cases


“The right of the people to be secure in their persons, houses, 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.”

Search and Seizure: The Fourth Amendment


The Fourth Amendment protects one’s privacy from unreasonable searches and seizures.

Search and Seizure: The Fourth Amendment


The

Exclusionary Rule


§  Weeks v. U.S. (1914) established the exclusionary rule. §  Evidence illegally seized by the police cannot be used in a trial. §  This rule acts as a control over police behavior.

§  Mapp v. Ohio (1961) made the exclusionary rule applicable to the states. §  The 14th Amendment due process applies to local police, not just federal officers.

The Exclusionary Rule


§  Weeks was suspected of selling lottery tickets through the mail.

§  His home was searched. §  His personal property was

confiscated.

Weeks v. U.S. (1914)

Exclusionary Rule


§  Weeks’ attorney asked that personal property be returned.

§  Federal judge agreed that some of Weeks’ property should be returned.


Exclusionary Rule


§  Weeks was convicted on the remaining evidence.

§  He appealed.


Exclusionary Rule


Supreme Court Decision: §  If some of Weeks’ property had

been seized illegally, then the remainder of the property had also been seized illegally.

§  This case established the exclusionary rule.


Exclusionary Rule


§  Mapp was suspected of hiding a bombing suspect.

§  Mapp refused police admittance.

§  Police forced their way in, showing Mapp a paper they said was a search warrant for her house.

Mapp v. Ohio (1961)


§  Mapp grabbed the “warrant” and placed it inside her blouse.

§  Police retrieved the “warrant” and searched her house.

Mapp v. Ohio (1961)


§  Police found pornographic material in the house.

§  The bombing suspect was not found.

Mapp v. Ohio (1961)


§  Mapp was convicted of possession of pornographic material.

§  No search warrant was produced at her trial.

Mapp v. Ohio (1961)


U.S. Supreme Court decided: §  14th Amendment due process applies to

local police, not just federal officers. §  Evidence against Mapp was illegally

obtained. §  Overturned conviction based on

inadmissibility of the evidence.

Mapp v. Ohio (1961)


§  Evidence illegally seized by the police cannot be used in a trial.

§  This rule acts as a control over police behavior.

Exclusionary Rule


§  Because illegally seized evidence cannot be used in a trial, neither can evidence that derives from an illegal seizure.

Fruits of Poisoned Tree

Silverthorne Lumber Co. v. U.S. (1918)


§  Silverthorne was accused of not paying taxes.

§  Federal agents wanted the company books.

§  Silverthorne refused to turn over books.




§  Feds seized the books without a warrant.

§  Silverthorne asked for books to be returned.

§  The prosecutor returned the books.




§  Before the prosecutor returned the papers, he made copies.

§  Silverthorne was convicted.




§  The U.S. Supreme Court overturned the conviction.

§  It ruled that because illegally seized evidence cannot be used in a trial, neither can evidence that derives from an illegal seizure.




§  The Fourth Amendment protects against unreasonable searches, but it protects people, not places.

§  A limited area search following arrest may be acceptable.

Search Incident to Arrest

U.S. v. Rabinowitz (1950)


§  Rabinowitz was arrested on a federal warrant for selling altered postage stamps to defraud collectors.

§  The officers did not have a search warrant.



Officers searched the office including the desk, a file cabinet, and a safe, finding 573 altered stamps



§  Rabinowitz was convicted. §  The U.S. Supreme Court decided

that the search was constitutional.



§  The Fourth Amendment protects against unreasonable searches, but it protects people, not places.

§  A limited area search following arrest may be acceptable.



Clarified the scope of a search incident to an arrest.

Officers may search: §  The arrested person §  The area under the arrested person’s “immediate control”

Officers can search for following reasons: §  To protect themselves §  To prevent destruction of evidence §  To keep defendant from escaping

Search Incident to Arrest Chimel v. U.S. (1969)


§  Chimel is convicted of burglarizing a coin shop based on evidence gathered at his arrest.

§  Police had an arrest warrant, but did not have a search warrant.

§  Police searched his whole house, including the garage, attic, and small workshop.

Chimel v. California (1969)


§  Police realized the search might be contested.

§  Police felt they could justify the search as part of the arrest process since searches prior to

arrest are often necessary for officer protection.



U.S. Supreme Court heard the case and decided that the search became invalid when it went beyond Chimel’s area of “immediate control.”



Officers may search: §  the arrested person §  the area under the arrested person’s

“immediate control” Officers can search for following

reasons: §  to protect themselves §  to prevent destruction of evidence §  to keep defendant from escaping



§  When law enforcement officers have acted in good faith, the evidence they collect should be admissible even if later it is found that the warrant they used was invalid.

Good Faith Exception to the Exclusionary Rule

U.S. v. Leon (1984)


§  Leon was placed under surveillance for drug trafficking.

§  Police obtained a search warrant based on their observation of Leon.

U.S. v. Leon (1984)


§  Police searched Leon’s homes and discovered drugs.

§  Leon was convicted of drug trafficking.

U.S. v. Leon (1984)


§  Federal court overturned the case based on lack of probable cause.

§  State appealed to U.S. Supreme Court.

U.S. v. Leon (1984)


U.S. Supreme Court Decision: When law enforcement officers have acted in

good faith, the evidence they collect should be admissible even if later it is found that the warrant they used was invalid.

“good faith exception” to exclusionary rule

U.S. v. Leon (1984)


U.S. Supreme Court held that the good faith exception applied to warrantless searches supported by state law even where the state statute was later found to violate Fourth Amendment rights.

§  Good faith can be established if the police reasonably believe they are performing their jobs in accordance with the law.


Illinois v. Rodriguez (1990)


§  Gail Fisher complained to police that she had been assaulted.

§  Officers accompanied her to the apartment where she said the assault took place.



§  Fisher used her key to open the door to the apartment and admit the police.

§  Officers arrested Rodriquez, who was found sleeping on the couch with drugs nearby.



§  Rodriquez was convicted.

§  On appeal, Rodriquez argued that Fisher had not lived in the apartment for over a month and therefore had no legal control over the apartment.



U.S. Supreme Court Decision: rejected appeal based on fact that

police reasonably believed at the time of entry that Fisher had legal access to the apartment.



U.S. Supreme Court created the computer errors exception to the exclusionary rule.

§  Police officers cannot be held responsible for a clerical error. §  The exclusionary rule was intended to deter police misconduct, not clerical mistakes made by court employees.


Arizona v. Evans (1995)


§  Objects falling in “plain view” of an officer, who has the right to be in the position to have the view, are subject to seizure and may be introduced as evidence.

§  The Plain View Doctrine applies only to sightings by the police under legal circumstances.

Plain View Doctrine

Harris v. U.S. (1968)


§  Harris’ vehicle is impounded by police.

§  Police inventory contents of vehicle.

§  Evidence of a robbery is found.



§  Harris is arrested and convicted.

§  Harris appeals his conviction.



U.S. Supreme Court Decision:

appeal rejected, Justification: Objects falling in “plain view” of an officer,

who has the right to be in the position to have the view, are subject to seizure and may be introduced as evidence.



Police can use evidence if they observe it during emergencies such as: §  crimes in progress §  fires §  accidents

Plain View Situations


The Plain View Doctrine applies only

to sightings by the police under legal circumstances.

Plain View Situations


§  Restricted the plain view doctrine §  Officers cannot move objects to gain a view of evidence otherwise hidden from view. §  Officers cannot move or dislodge objects to create “plain view.”

Plain View Doctrine

U.S. v. Irizarry (1982) Arizona v. Hicks (1987)


Hicks is arrested when police enter

his apartment to check a report of a gun being fired.

Arizona v. Hicks (1987)


§  Officers see two stereo systems that they believe may be stolen.

§  They write down the serial number of the first stereo because it is plainly visible.



§  Second stereo has to be moved to see serial number.

§  Both stereos have been reported stolen.



§  Hicks convicted of armed robbery based on the seized stereos.

§  Hicks appeals his conviction.




conviction overturned, Justification: Officer’s behavior became illegal when he

moved the stereo to record the serial number.



People have a reasonable expectation of privacy, which means that officers lacking a search warrant even when invited into the residence, must act more like guests than inquisitors.



The U.S. Supreme Court held that even though inadvertence is a characteristic of most legitimate plain view seizures, it is not a necessary condition.

§  It is okay to seize evidence found when such evidence is other than that listed in a search warrant.

Plain View Doctrine

Horton v. California (1990)


Emergency Searches of Property

Three threats provide justification for emergency warrantless searches (searching during exigent circumstances). 1.  Clear dangers to life 2.  Clear dangers of escape 3.  Clear dangers of removal or destruction of evidence


“4th Amendment does not require police to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”

Emergency Searches

Warden v. Hayden (1967)


§  There was a report that a robber had fled into a home.

§  Officers searched the residence without a warrant.

§  Defendant was found and convicted.




rejected claim of illegal search, Justification: “4th Amendment does not require police to

delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”


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Search and

Seizure: Arrest


An arrest occurs when a law enforcement officer restricts a person’s freedom to leave. It is:

The act of taking an adult or juvenile into custody by authority of law for the purpose of charging the person with a criminal offense, a delinquent act, or a status offense, terminating with the recording of a specific offense.

Arrests


U.S. v. Mendenhall (1980)

U.S. Supreme Court said: “A person has been ‘seized’ within the meaning of the Fourth Amendment only if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”

“Free-to-Leave” Test


Yarborough v. Alvarado (2004)

Whether a person is actually free to leave can only be determined by examining the totality of the circumstances surrounding the interrogation.

“Free-to-Leave” Test


Fleeing Felon Doctrine

§  Historically, the fleeing felon doctrine dictated the use of force.

§  Deadly force could be used to apprehend any fleeing felony suspect.

§  This was so in most states until the 1960’s.

§  But it’s no longer valid.


Terry v. Ohio (1968)

Reasonable suspicion is needed to “stop and frisk.” The facts must lead officers to suspect that crimes may be occurring, and that suspects may be armed.

Justification: “We cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.”

The “Terry” Stop


Stop and Frisk

§  Terry was believed to be “casing” a store for robbery.

§  A police veteran of 39 years conducted a “pat-down” search of Terry.



Stop and Frisk

§  A gun was found on Terry.

§  The officer testified that the “man did not look right.”



Stop and Frisk

§  Terry was convicted of carrying a concealed weapon.

§  Terry appealed claiming that the officer had no probable cause to search.




appeal rejected, Justification: Reasonable suspicion existed for stop and frisk.

The facts must lead officers to suspect that crimes may be occurring, and that suspects may be armed.



Justification: “We cannot blind ourselves to the

need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.”



Reasonable suspicion is a general and reasonable belief that a crime is in progress or has occurred whereas probable cause is a reasonable belief that a particular person has committed a specific crime.

Reasonable Suspicion Versus Probable Cause


U.S. v. Sokolow (1989)

Stops must be evaluated based on a “totality of circumstances” criterion—in which all aspects of the defendant’s behavior, together, provide the basis for a legitimate stop based on reasonable suspicion.

Reasonable Suspicion Stops


U.S. v. Arvizu (2002)

“Officers are allowed to draw on their own experiences and specialized training to make inferences from and deductions about the cumulative information available.”



Minnesota v. Dickerson (1993)

“If an officer lawfully pats down a suspect’s outer clothing and feels an

object whose contour or mass makes it immediately apparent there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons.”



§  Dickerson was seen leaving a building known for cocaine trafficking.

§  Minneapolis police stopped Dickerson after they observed him acting suspiciously.

§  A pat-down search revealed no weapons, but did reveal a small lump in his jacket.

§  Police suspected the lump was cocaine.

§  Officers retrieved a lump of crack cocaine.



“The officer never thought the lump was a weapon, but did not immediately recognize it as cocaine.”

The lump was determined to be

cocaine only after the officer squeezed, slid, and otherwise manipulated the pocket’s contents.



The Court ruled that the search went

too far.




conviction overturned,

Justification: “If an officer lawfully pats down a suspect’s

outer clothing and feels an object whose contour or mass makes it immediately apparent…





Justification: …there has been no invasion of the suspect’s

privacy beyond that already authorized by the officer’s search for weapons.”



Hiibel v. Sixth Judicial District Court of Nevada (2004)

The court upheld Nevada’s “stop and identify” law that requires a person to identify himself to police if they encounter him under circumstances that reasonably indicated that he “has committed, is committing, or is about to commit a crime.”

Reasonable Suspicion Searches


Smith v. Ohio (1990)

An individual has the right to protect his belongings from unwarranted search.”

Reasonable Suspicion Searches


§  Smith was approached by two plain clothes officers who asked

Smith to “come here a minute.” §  Smith kept walking until the

police identified themselves. §  Smith put a paper bag he was

carrying on the hood of his car to keep it from police.



§  Officers inspected the bag and found marijuana

§  Smith arrested for drug possession.

§  He was convicted.

§  He appealed.




conviction overturned, Justification: An individual has the right to protect his belongings

from unwarranted search. In this case, there was little reason to stop the suspect and control over the bag was not thought necessary for the officers’ protection.



§  Two police officers stopped Brown and asked for identification.

§  Brown refused to provide identification and was arrested for failing to properly identify himself.

§  Brown was convicted.

§  Brown appealed claiming an illegal stop.

Brown v. Texas (1979)


Officers testified that Brown was not

acting suspiciously, nor did they think he had a weapon.





Justification: Under the circumstances, since there was no

reason to stop Brown, he could not be punished for refusing to identify himself.



Emergency searches of persons falls under the exigent circumstances exception to the warrant requirement of the Fourth Amendment.

Emergency Searches of Persons


All of the following conditions must apply. 1.  At the time of the search there was probable

cause to believe that evidence was concealed on the person searched.

2.  At the time of the search there was probable cause to believe an emergency threat of destruction of evidence existed.

3.  The officer had no prior opportunity to obtain a warrant authorizing the search.

4.  The action was no greater than necessary to eliminate the threat of destruction of evidence.

FBI Guidelines for Conducting Emergency Warrantless Searches of Persons


§  Warrants are necessary if time and circumstances permit them.

§  Investigatory stops of vehicles are

permissible under the Fourth Amendment if supported by reasonable suspicion.

§  Warrantless searches of vehicles must be

based on probable cause (fleeting-targets).

Vehicle Searches


Indianapolis v. Edmond (2000)

The Fourth Amendment prohibits even a brief seizure of a motorist under a program whose primary purpose is ultimately indistinguishable from the general interests in crime control. Checks for drivers’ licenses and registrations

are okay because they do not intend to “detect evidence of ordinary criminal wrongdoing”.

Roadblocks and Checkpoints


Illinois v. Lidster (2004)

Information-seeking highway roadblocks are permissible.

“The law ordinarily permits police to seek the public’s voluntary cooperation in a criminal investigation”.

Roadblocks and Checkpoints


The warrantless searching of automobiles extends to include some watercraft, houseboats, and motor homes.

Watercraft and Motor Homes


Suspicionless searches may be necessary in order to ensure public safety. Such searches must be based on compelling interests. Suspicionless sweeps of busses, trains, planes, and city streets are permissible, as long as:

1.  Police ask permission 2.  Police do not coerce people to consent 3.  Police do not convey the message that compliance

is necessary

Suspicionless Searches


§  Investigating crime is making greater use of high-technology devises and practices, such as thermal imaging devises.

§  If the government searches a home using a device that is not something used by the general public, and that shows something that wouldn’t be learned without entering the house, then a warrant is required.

High-Technology Searches

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The Intelligence Function


Intelligence Function

Police gather information through many sources, including: §  Informants §  Interrogation


In the case of informants, a two-pronged test usually satisfies the probable cause requirement: 1.  The source of the informant’s

information is made clear. 2.  The police officer has a reasonable

belief that the informant is reliable.

Informants


Anonymous tips are evaluated on the basis of the totality of circumstances approach and are considered in light of everything already known to the police. Without other information, anonymous tips may be used if they accurately predict future behavior.

Informants


Police Interrogation

An interrogation refers to the information-gathering activity of police officers that involves the direct questioning of suspects. During an interrogation, there must be no:

§  Physical abuse §  Inherent coercion §  Psychological manipulation


Escobedo v. Illinois (1964)

A defendant is entitled to counsel at police interrogations, and counsel should be provided when the defendant so requests.

The Right to a Lawyer at Interrogation


§  Danny Escobedo is arrested, without a warrant, for the murder of his brother-in- law.

§  He makes no statements during an initial interrogation and is released.

§  A few weeks later, someone identifies him as the murderer.

§  He is again brought in for questioning.



§  He is told they “have him cold.” §  He asks to see his lawyer and is told he

cannot since the interrogation is underway.

§  His lawyer arrives and asks to see his client but is told he has to wait until questioning is complete.

§  Escobedo is told that his lawyer does not want to see him.



§  Escobedo confesses to the crime.

§  He is convicted and appeals.





Justification: A defendant is entitled to counsel at

police interrogations, and counsel should be provided when the defendant so requests.



Miranda v. Arizona (1966)

“The entire aura and atmosphere of police interrogation, without notification of rights and an offer of assistance of counsel, tends to subjugate the individual to the will of his examiner.”

Prior to custodial interrogation, a person must be informed of his or her rights (Miranda triggers).

The Right to a Lawyer at Interrogation


§  Miranda was arrested in Phoenix, Arizona, and accused of kidnapping and rape.

§  He was identified by the victim.

§  He was interrogated for two hours, signed a confession and was convicted.

§  He appealed his conviction to the U.S. Supreme Court.





Justification: “ The entire aura and atmosphere of police

interrogation, without notification of rights and an offer of assistance of counsel, tends to subjugate the individual to the will of his examiner.”



The Miranda Warnings

1. You have the right to remain silent. 2. Anything you say can and will be used against you in a court of law. 3. You have the right to talk to a lawyer and to have a lawyer present while you are being questioned. 4. If you want a lawyer before or during questioning but cannot afford to hire a lawyer, one will be appointed to represent you at no cost before any questioning. 5. If you answer questions now without a lawyer here, you still have the right to stop answering questions at any time.


A waiver of Miranda rights can be done if such a waiver is voluntary, knowing, and intelligent.

Waiver of Miranda Rights


Nix v. Williams (1984)

Evidence, even if it was otherwise gathered inappropriately, can be used in a court of law if it would have invariably turned up in the normal course of events.

Inevitable Discovery Exception to Miranda


New York v. Quarles (1984)

Considerations of public safety were overriding and negated the need for rights advisement prior to limited questioning that focused on the need to prevent further harm.

Public Safety Exception to Miranda

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Special Kinds of Nontestimonial

Evidence


Nontestimonial Evidence

Nontestimonial evidence generally refers to physical evidence, including very personal items that may be within or part of a person’s body, such as:

§  Ingested drugs §  DNA §  Foreign objects §  Blood §  Medical implants


Nontestimonial Evidence

Concerns over non-testimonial evidence involve:

§  Right to privacy issues §  Body cavity searches §  Electronic eavesdropping §  Electronic evidence


Right to Privacy

Schmerber v. California (1966) Warrants must be obtained for bodily intrusions unless fast action is necessary to prevent the destruction of evidence by natural physiological processes.


Body-Cavity Searches

Strip searches of convicts in prison, including the search of body cavities, have generally been held to be permissible. U.S. v. Montoya de Hernandez (1985)

The Court upheld a four-day customs detention of a body packer (until nature took its course and evidence was passed from her body).


Electronic Eavesdropping

Katz v. U.S. (1967)

A warrant is required to unveil what a person makes an effort to keep private, even in a public place.


Electronic Eavesdropping

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 permits officers to listen to electronic communications when one of the following conditions is met:

1.  An officer is one of the parties involved in the conversation.

2.  One of the parties is not the officer but willingly decides to share the communications with the officer.

3.  Officers obtain a warrant based on probable cause.


Minimization Requirement

U.S. v. Scott (1978)

Officers must make every reasonable effort to monitor only those conversations that are specifically related to the criminal activity under investigation.


The Electronic Communications Privacy Act (ECPA) of 1986

The ECPA held that officers must obtain wiretap-type court orders to eavesdrop on ongoing communications. **In 2003, judges approved 1,442 wiretap requests, allowing for around 4.3 million intercepted conversations, 1/3 of which were found to be incriminating.


The Telecommunications Act of 1996

Made it a federal offense to knowingly use interstate or international telecommunications device to: “create, solicit, or initiate the transmission of any comments, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten or harass another person.”

This act also included a provision for harassing and other types of prank phone calls.


The USA PATRIOT Act of 2001

The USA PATRIOT Act of 2001 made it easier for police investigators to intercept many forms of electronic communication. For example, the Act:

§  Allows for roving wiretaps §  Broadens “sneak and peek”

searches §  Updates the pen/trap statue

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