Police and the Rule of Law

1. Chapter 8 Police and the Rule of Law

2. Identification of Criminal Behavior • The means police use to identify criminal behavior is controlled by law and court decisions. • Surveillance • Search and frisk • Trading immunity for information • Temporary detention • Apprehension and arrest

3. Unreasonableness • A standard applied to search warrant applications • Unreasonableness generally exists when an officer exceeds the scope of police authority or from a lack of probable cause

4. Process of Obtaining a Search Warrant • A warrant is requested from the court • An affidavit of support is submitted • Application specifies place to be searched and items to be seized

5. Search Warrants, Hearsay and Informants • The police must prove to a judge that, considering the “totality of the circumstances,” an informant has relevant and factual knowledge that a fair probability exists that evidence of a crime will be found in a certain place

6. Stop and Frisk or Threshold Inquiries • Terry v. Ohio (1968) findings: • May stop and search in a limited manner • Suspicious behavior is required • May not be used to harass • May not be used to conduct exploratory searches

7. Warrantless Searches: Incident to Lawful Arrest • Legality of this type of search almost always relates to the legality of the arrest • If the arrest is found invalid, then any warrantless search made incident to it would be considered illegal and the evidence obtained would be excluded in court • Most of these deal with exigent circumstances

8. An Arrest is Generally Lawful if... • The officer observes the crime • The officer has probable cause to believe a crime was committed and that the suspect committed it

9. Two General Rules for Conducting a Lawful Search Incident to Arrest • That the officer searches the suspect at the time of, or immediately following, the arrest • That the officer searches only the suspect and the area within the suspect’s immediate control

10. Warrantless Searches of Automobile • Must be based on the legal standard of probable cause that a crime related to the automobile has been or is being committed • Police who undertake the search of a vehicle must have reason to believe that it contains evidence pertaining to the crime

11. Roadblock Searches • Random stops are forbidden • Roadblocks are permissible if they: • Stop cars in a systematic fashion • Have procedures for stops that are determined by someone other than the officer(s) at the scene

12. Pretext Stops • . . . as long as there is a legal basis for making an arrest, officers may do so, even in cases where they are motivated by a desire to gather evidence of other suspected crimes.

13. Consent Searches • Consent must be given: • Voluntarily • Intelligently

14. Florida v. Bostick: “The Bus Sweep” • The nature of a bus sweep does not invalidate consent, but was Bostick in custody when the search occurred? • The driver had left the bus and the door was closed • The officers blocked Bostick, who was in the back of the bus • One officer was holding his gun in clear view

15. Searches by sight and feel • The Fourth Amendment’s protection for reasonable expectations of privacy does not cover criminal evidence that can be seen or felt by officers in specific situations. • Plain View. Coolidge v. New Hampshire (1971): Officers are permitted to notice and use as evidence items in plain view when they are in a location that they are permitted to be. • Open Fields. Oliver v. U.S. (1984): Officers are permitted to intrude on private lands that are open areas, such as fields and pastures, but they may not search the yard (“curtilage”) area immediately surrounding a house without a warrant or a specific justification for a warrantless search. • Plain Feel. Minnesota v. Dickerson (1993): While conducting a pat-down search of a suspect’s outer clothing, items in pockets or clothing may be seized as evidence if they are immediately identifiable by touch as weapons or contraband.

16. Electronic Surveillance • Wiretaps requiring court approval and a search warrant • Katz v. United States (1967): The government must obtain a court order if it wishes to listen in on conversations in which the parties have a reasonable expectation of privacy. • Material can be seized electronically without a warrant if the suspect has no expectation of privacy.

17. What is an Arrest? • When the officer believes that sufficient legal evidence exists that a crime has been or is being committed and intends to restrain the suspect • The officer deprives the individuals of his or her freedom • Suspect believes he or she is in custody and cannot voluntarily leave

18. Miranda v. Arizona (1966) • You have the right to remain silent • If you decide to make a statement, the statement can and will be used against you in a court of law • You have the right to have an attorney present at the time of the interrogation, or you will have an opportunity to consult with an attorney • If you cannot afford an attorney, one will be appointed for you by the state

19. When Illegally Gained Statements and Evidence Can Be Used • Illegally gained evidence can be used to impeach a defendant’s testimony during trial if the defendant perjures him or her self. • At trial, testimony of a witness is permitted even though the witness’s identity was revealed by the defendant in violation of the Miranda rule. • Evidence is permissible if it would have been obtained anyway by other means or sources (inevitable discovery rule).

20. When Illegally Gained Statements and Evidence Can Be Used (cont.) • Initial errors by police in getting statements do not exclude subsequent statements from use once a Miranda error has been corrected. • Admissions of mentally impaired defendants can be admitted as long as evidence shows the police acted properly and there is a preponderance of the evidence that the party understood the meaning of Miranda. • An erroneous admission of a coerced confession at trial can be admitted if it is ruled a “harmless error” and would not have automatically resulted in overturning a conviction.

21. Narrowing the Scope of Miranda • Miranda only applies to an attorney, not a priest, probation officer or other official. • A suspect can be questioned in the field without Miranda warnings if it is necessary to protect public safety (the public safety doctrine). • Suspects need not be aware of all the possible outcomes of waiving their rights. • Miranda applies only when the suspect requests an attorney, not when one has been brought in by family or friends. • An ambiguous reference such as “maybe I should talk to an attorney” does not constitute a formal request for counsel. • Failure to give Miranda warnings is not illegal unless the case actually becomes a criminal matter.

22. Pretrial Identification Process • Right to counsel at post-indictment lineup • No right to counsel at pre-indictment or pre-complaint lineup • Rules exist to limit “suggestiveness” of the process. The court must weigh all factors such as: • The opportunity of the witness to view the criminal at the time of the crime • The degree of attention by the witness and the accuracy of the prior description by the witness • The level of certainty demonstrated by the witness • The length of time between the crime and the confrontation

23. The Exclusionary Rule • Weeks v. United States • Established the exclusionary rule for the federal court • Wolf v. Colorado • Warned states that the exclusionary rule may apply to them • Mapp v. Ohio • Exclusionary rule applies to state court actions

24. Criticisms of the Exclusionary Rule • The exclusionary rule as it now exists: • Has had no direct impact on police practices • Has not controlled police harassment • Has allowed guilty individuals to go free

25. New Cases Weaken the Exclusionary Rule • Illinois v. Gates - anonymous letter establishes probable cause for search warrant • United States v. Leon - good faith exception based on magistrate-issued warrant • Illinois v. Krull - good faith exception okay if based on a state statute • Inevitable Discovery Rule - evidence that would have been eventually found in the same condition • Arizona v. Youngblood - mistaken loss of exculpating evidence not a violation of rights • Arizona v. Evans - good faith reliance on apparently valid warrant is admissible

26. Suggested Approaches to Dealing With Violations of the Exclusionary Rule • Criminal prosecution of police officers who violate constitutional rights • Better use of internal police controls • Civil lawsuits against state or municipal police officers • Federal lawsuits against the government under the Federal Tort Claim Act