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CRIMINAL JUSTICE TODAY, 9E PRENTICE HALL

By Frank Schmalleger ©2007 Pearson Education, Inc. 1

Policing: Legal Aspects

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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



There are three areas of police actionthat are infused with due process:

1. Search and seizure of evidence2. Arrest3. 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



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



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)



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)



Clarified the scope of a search incident toan 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)



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)



U.S. Supreme Court held that the goodfaith exception applied to warrantlesssearches supported by state law even wherethe state statute was later found to violateFourth 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)



U.S. Supreme Court created the computererrors 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)



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)



The U.S. Supreme Court held that eventhough inadvertence is a characteristic ofmost legitimate plain view seizures, it isnot 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 justificationfor emergency warrantless searches(searching during exigentcircumstances).

1. Clear dangers to life2. Clear dangers of escape3. Clear dangers of removal or destruction of evidence



“4th Amendment does not require policeto delay in the course of an investigation ifto do so would gravely endanger theirlives or the lives of others.”

Emergency Searches

Warden v. Hayden (1967)

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Search and Seizure: Arrest



An arrest occurs when a law enforcementofficer restricts a person’s freedom toleave. It is:

The act of taking an adult or juvenile intocustody by authority of law for thepurpose of charging the person with acriminal offense, a delinquent act, or astatus 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



Terry v. Ohio (1968)

Reasonable suspicion is needed to “stop and frisk.”The facts must lead officers to suspect that crimesmay 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



Reasonable suspicion is a general andreasonable belief that a crime is inprogress or has occurred whereas probable cause is a reasonable beliefthat a particular person has committeda 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’sbehavior, together, provide the basis for alegitimate stop based on reasonablesuspicion.

Reasonable Suspicion Stops



U.S. v. Arvizu (2002)

“Officers are allowed to draw on theirown experiences and specialized trainingto make inferences from and deductionsabout the cumulative informationavailable.”




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.”




Hiibel v. Sixth Judicial District Court ofNevada (2004)

The court upheld Nevada’s “stop and identify”law that requires a person to identify himself topolice if they encounter him undercircumstances that reasonably indicated thathe “has committed, is committing, or is aboutto 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



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 briefseizure of a motorist under a program whoseprimary purpose is ultimately indistinguishablefrom the general interests in crime control.

Checks for drivers’ licenses and registrations areokay because they do not intend to “detectevidence of ordinary criminal wrongdoing”.

Roadblocks and Checkpoints



Illinois v. Lidster (2004)

Information-seeking highway roadblocks are permissible.

“The law ordinarily permits police to seek thepublic’s voluntary cooperation in a criminalinvestigation”.

Roadblocks and Checkpoints



The warrantless searching ofautomobiles extends to include somewatercraft, houseboats, and motorhomes.

Watercraft and Motor Homes



Suspicionless searches may be necessary inorder to ensure public safety. Such searchesmust be based on compelling interests.

Suspicionless sweeps of busses, trains, planes,and city streets are permissible, as long as:

1. Police ask permission2. Police do not coerce people to consent3. 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 theprobable 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 thebasis of the totality of circumstancesapproach and are considered in light ofeverything already known to the police.

Without other information, anonymoustips may be used if they accuratelypredict 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 atpolice interrogations, and counselshould be provided when thedefendant so requests.

The Right to a Lawyer at Interrogation



Miranda v. Arizona (1966)

“The entire aura and atmosphere of policeinterrogation, without notification of rights andan offer of assistance of counsel, tends tosubjugate the individual to the will of hisexaminer.”

Prior to custodial interrogation, a person mustbe informed of his or her rights (Mirandatriggers).

The Right to a Lawyer at Interrogation



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 bedone if such a waiver is voluntary,knowing, and intelligent.

Waiver of Miranda Rights



Nix v. Williams (1984)

Evidence, even if it was otherwisegathered inappropriately, can be usedin a court of law if it would haveinvariably turned up in the normalcourse of events.

Inevitable Discovery Exception to Miranda



New York v. Quarles (1984)

Considerations of public safety wereoverriding and negated the need forrights advisement prior to limitedquestioning that focused on the need toprevent 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 andSafe Streets Act of 1968 permits officers to listen to electronic communications when oneof 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 everyreasonable effort to monitor onlythose conversations that arespecifically related to the criminalactivity under investigation.



The Electronic Communications Privacy Act (ECPA) of 1986

The ECPA held that officers must obtainwiretap-type court orders to eavesdrop onongoing 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 useinterstate or international telecommunicationsdevice to:

“create, solicit, or initiate the transmission of anycomments, request, suggestion, proposal, image orother 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 forharassing and other types of prank phonecalls.



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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