Chapter 5 Policing: Legal Aspects

1. Chapter 5Policing: Legal Aspects

2. Learning Objectives • Explain the Bill of Rights and personal freedoms • Describe the nature of due process • Explain the importance of the exclusionary rule and the fruit of the poisoned tree doctrine • Define arrest, and describe how popular depictions of arrest by the police may not be consistent with legal understandings of the term

3. Learning Objectives • Describe the circumstances under which searches of vehicles are permissible • Explain how the need to ensure public safety may justify suspicionless searches • Explain Miranda warnings requirements • Describe the nature of electronic evidence

4. The Abuse of Police Power • National publicity of excessive use of power • Amadou Diallo • Rodney King • Web Extra 5-2 • The rules by which the police are expected to operate are in constant flux.

5. A Changing Legal Climate • Bill of Rights: • The popular name given to the first ten amendments to the U.S. Constitution, which are considered especially important in the processing of criminal defendants. (It is a limitation on govt.) • The 1960s Warren Court rulings bound the police to strict procedural requirements in the areas of investigation, arrest, and interrogation. • The more recent conservative court philosophy has reversed some of the Warren-era advances.

6. Constitutional Amendments of Significance to the American System of Justice • Fifth, Sixth, and Fourteenth Amendments • The right to due process of law

7. Constitutional Amendments of Significance to the American System of Justice • Fourth Amendment • The right against unreasonable searches and seizures • The right against arrest without “probable cause”

8. Constitutional Amendments of Significance to the American System of Justice • Fifth Amendment • The right against self-incrimination • The right against “double jeopardy”

9. Constitutional Amendments of Significance to the American System of Justice • Sixth Amendment • The right to a speedy trial • The right to a jury trial • The right to know the charges • The right to cross-examine witnesses • The right to a lawyer • The right to compel witnesses on one’s behalf

10. Constitutional Amendments of Significance to the American System of Justice • Eighth Amendment • The right to reasonable bail • The right against excessive fines • The right against cruel and unusual punishment

11. Constitutional Amendments of Significance to the American System of Justice • Fourteenth Amendment • The applicability of constitutional rights to all citizens, regardless of state law or procedure

12. Individual Rights • The Constitution of the United States provides for a system of “checks and balances” among the three branches of government. • The courts are the arena for dispute resolution, not just between individuals, but between citizens and the agencies of government.

13. Due Process Requirements • Fifth, Sixth, and Fourteenth Amendments • Most due process requirements of relevance to the police pertain to three major areas: • Evidence and investigation, • Arrest, and • Interrogation. • Landmark case refers to: A precedent-setting court decision that produces substantial changes in both the understanding of the requirements of due process and in the practical day-to-day operations of the justice system.

14. Search and Seizure • The U.S. Constitution declares that people must be secure in their homes and in their persons against unreasonable searches and seizures. • Illegally seized evidence refers to: • Web Extra 5-4 Evidence seized without regard to the principles of due process as described by the Bill of Rights.

15. The Exclusionary Rule • Exclusionary rule refers to: • The rule acts as a control over police behavior. • It specifically focuses on the failure of officers to obtain warrants. • Weeks v. U.S. (1914): Library Extra 5-1 The understanding, based on U.S. Supreme Court precedent, that incriminating material must be seized according to constitutional specifications of due process or it will not be allowed as evidence in a criminal trial.

16. Problem with Precedent • The Weeks case demonstrates the power of the Supreme Court in enforcing what we have called the “rules of the game.” • Before Weeks, officers had little reason to think they were acting in violation of due process. • Focusing on the “rules of the game” allows some guilty to go free.

17. The Fruit of the Poisoned Tree Doctrine • Silverthorne Lumber Co. v. U.S. (1920) • Fruit of the poisoned tree doctrine is: • Library Extra 5-2 A legal principle that excludes from introduction at trial any evidence later developed as a result of an illegal search or seizure.

18. The Warren Court (1953–1969) • The 1960s were a time of youthful idealism. • Mapp v. Ohio (1961) made the exclusionary rule applicable to criminal prosecutions at the state level.

19. Searches Incident to Arrest • Chimel v. California (1969) • What arresting officers may search • The defendant • The physical area within easy reach of the defendant • Valid reasons for conducting a search • To protect the arresting officers • To prevent evidence from being destroyed • To keep the defendant from escaping • When a search becomes illegal • When it goes beyond the defendant and the area within the defendant’s immediate control • When it is conducted for other than a valid reason

20. The Burger (1969−1986) and Rehnquist (1986–Present) Courts • Renewed concern with protecting the financial and other interests of those who live within the law. • Good faith exception refers to: An exception to the exclusionary rule. Law enforcement officers who conduct a search or who seize evidence on the basis of good faith and who later discover that a mistake was made may still use the seized evidence in court.

21. Exceptions to the Exclusionary Rule • Probable cause refers to: • Plain view doctrine refers to: • Library Extra 5-4 A set of facts and circumstances that would induce a reasonably intelligent and prudent person to believe that a particular other person has committed a specific crime. A legal term describing the ready visibility of objects that might be seized as evidence during a search by police in the absence of a search warrant specifying the seizure of those objects.

22. Exceptions to the Exclusionary Rule • Emergency search refers to: • Also referred to as exigent circumstances. A search conducted by the police without a warrant, which is justified on the basis of some immediate and overriding need, such as public safety, the likely escape of a dangerous suspect, or the removal or destruction of evidence.

23. Other Exceptions to the Exclusionary Rule • Authority to enter and/or search an “open field” without a warrant • Authority to search “incident to an arrest” and/or to conduct a “protective sweep” in conjunction with an in-home arrest • Gathering of incriminating evidence during interrogation in noncustodial circumstances • “Stop and frisk” / request personal identification • Use of police informants in jail cells • Warrantless naked-eye aerial observation of “open areas” and/or greenhouses

24. Arrest • Arrest refers to: • Arrests that follow questioning of a suspect are the most common type. • Arrest may also occur when the officer comes upon a crime in progress. (Personally observed) • Most jurisdictions allow arrest for a felony without a warrant when a crime is not in progress, as long as probable cause can be established. The act of taking an adult or juvenile into physical 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.

25. Searches Incident to Arrest • Search incident to an arrest refers to: • Reasonable suspicion refers to: • Terry-type stops. (Stop and Frisk) A warrantless search of an arrested individual conducted to ensure the safety of the arresting officer. The level of suspicion that would justify an officer in making further inquiry or in conducting further investigation.

26. Emergency Searches of Persons • There must be probable cause to believe that there is evidence concealed on the person searched. • There must be probable cause to believe an emergency threat of destruction of evidence exists. • The officer must have had no prior opportunity to obtain a warrant authorizing the search. • The action must not be greater than necessary to eliminate the threat of destruction of evidence.

27. Vehicle Searches • Fleeting targets exception refers to: • It is predicated on the fact that vehicles can quickly leave the jurisdiction of a law enforcement agency (and take the evidence with it). An exception to the exclusionary rule that permits law enforcement officers to search a motor vehicle based on probable cause.

28. Roadblocks and Motor Vehicle Checkpoints • Police officers have no legitimate authority to detain or arrest people who are going about their business in a peaceful manner. • However, community interests may necessitate a temporary suspension of personal liberty, even when probable cause is lacking.

29. Suspicionless Searches • Suspicionless search refers to: • Compelling interest refers to: A search conducted by law enforcement personnel without a warrant and without suspicion. They are permissible only if based on an overriding concern for public safety. A legal concept that provides a basis for suspicionless searches when public safety is at issue.

30. The Intelligence Function • One factor most likely to lead to arrest in serious crimes is the presence of a witness. • Undercover operations • “Neighborhood watch” programs • “Crime stopper” groups • Organized detective work

31. Informants • Informant information could establish probable cause if: • The source of the informant’s information is made clear, and • The police officer has a reasonable belief that the informant is reliable.

32. Police Interrogation • Interrogation refers to: • Subject to constitutional limits: • Physical abuse • Inherent coercion • Psychological manipulation • Library Extra 5-7 The information-gathering activity of police officers that involves the direct questioning of suspects.

33. The Right to a Lawyer at Interrogation • Escobedo v. Illinois (1964) • This established the right to have legal counsel present during police interrogation. • Edwards v. Arizona (1981) • Once a suspect who is in custody and is being questioned has requested the assistance of counsel, all questioning must cease until an attorney is present.

34. Suspect Rights: The Miranda Decision • Miranda warnings refer to: • Mirandav. Arizona (1966) • You have the right to remain silent. • Anything you say can be use against you in a court of law. • You have a right to speak to an attorney and have one present while you are being questioned. • If you cannot afford an attorney, one will be appointed to represent you at no cost. The advisement of rights due criminal suspects by the police before questioning begins.

35. Waiver of Miranda Rights by Suspects • Suspects in police custody may legally waive their Miranda rights through a voluntary “knowing and intelligent” waiver. • Inevitable-discovery exception to Miranda • Public-Safety Exception to Miranda

36. Gathering Special Kinds of Nontestimonial Evidence • Non-testimonial evidence is generally physical evidence, and most physical evidence is subject to normal procedures of search and seizure. • Right to privacy • Body-cavity searches

37. Electronic Eavesdropping • Title III of the Omnibus Crime Control and Safe Streets Act of 1968 • Mostly prohibits wiretaps but does allow officers to listen to electronic communications if: • An officer is one of the parties involved in the communication, • One of the parties is not the officer but willingly decides to share the communication, or • Officers obtain a warrant based on probable cause.

38. Minimization Requirement of Electronic Surveillance • U.S. v. Scott (1978) • Minimization means that officers must make every reasonable effort to monitor only those conversations, through the use of phone taps, body bugs, and the like, which are specifically related to the criminal activity under investigation.

39. Electronic Eavesdropping • Electronic Communications Privacy Act • A law passed by Congress in 1986 establishing the due process requirements that law enforcement officers must meet in order to legally intercept wire communications. • Telecommunications Act of 1996 • Made it a federal offense for anyone engaged in interstate or international communications to knowingly use a telecommunications device in an obscene, lewd, lascivious, filthy, or indecent way to annoy, abuse, threaten, or harass another person.

40. The USA Patriot Act of 2001 • Drafted in response to September 11, 2001 • Substantially increases the investigatory authority of federal, state, or local police agencies. • Permits longer jail terms for certain suspects arrested without a warrant. • Broadens “sneak and peek” search authority. • Enhances the power of prosecutors.

41. Gathering Electronic Evidence • Electronic evidence refers to: • Characteristics of electronic evidence: • It is latent. • It can transcend national and state borders quickly and easily. • It is fragile and can easily be altered or damaged by improper handling. • It may be time-sensitive. Information and data of investigative value that are stored in or transmitted by an electronic device.