Rules of Evidence and Arrest: The Legal Framework

1. Chapter Two Rules of Evidence and Arrest

2. Introduction • No evidence is admissible in court unless it is relevant • Relevance • The connection between a fact offered in evidence and the issue to be proved • Evidence must also be material • It is considered material if it is important or substantial, capable of influencing the outcome of the trial

3. Introduction • Evidence must also be obtained lawfully • A search for evidence must be reasonable • Any search conducted as a result of a lawful warrant is, on its face, reasonable • However, there are a number of exceptions to the search warrant requirement

4. Search Warrants • Fourth Amendment of the Constitution protects against unreasonable searches and seizures by all government officials • To obtain a search warrant, the investigator must prepare a written application that outlines the probable cause for the search

5. Search Warrants • The application is reviewed by a judge or magistrate • The judge or magistrate determines reasonableness by considering all the circumstances in each case • Probable cause exists when there are enough facts to lead a reasonable and prudent person to think that criminal activity is fairly probable

6. Search Warrants • The investigator must provide sufficient detail in the warrant application to identify the location of the requested search • In the description of the persons or things to be seized, the investigator must outline exactly what is being sought

7. Search Warrants • In emergencies, the investigator can obtain a search warrant over the telephone • Fourth Amendment restrictions do not apply to private individuals as long as they are not acting as government agents

8. Warrantless Searches • Consent search • The person voluntarily consents to the search • A person has an absolute right to refuse to consent to a search • A person can revoke consent at any time • The investigator should get the consent in writing to substantiate the voluntariness of the consent

9. Warrantless Searches • If consent is obtained by deceit, trickery, or misrepresentation, the search is unreasonable • If the consent was obtained without coercion or promises, the search was reasonable

10. Warrantless Searches • Stop and Frisk • The Supreme Court has ruled that police may temporarily detain a person for questioning • Reasonable suspicion that criminal activity may be involved • The person may be patted down for weapons if the officer has reasonable suspicion that it’s necessary for officer’s safety

11. Warrantless Searches • Plain view exception • If the officer is lawfully in a position to view an object and if the incriminating character of the object is immediately apparent • Effecting an arrest • Executing a search warrant • Even though the evidence was not specifically described in the warrant • Pursuing a fleeing suspect • Responding to an emergency

12. Warrantless Searches • Search Incident to a Lawful Arrest • The scope of this search includes the person of the arrestee • Also includes the area into which the arrestee could reach at the time of the arrest to retrieve a weapon or destroy evidence • May also search adjoining areas for persons posing a threat to the officers

13. Warrantless Searches • Motor vehicle stop • This is an exception because of the mobility of the vehicle and their use in transporting weapons, stolen goods, and contraband • Requires the existence of probable cause • Motor homes, houseboats, and airplanes are included

14. Warrantless Searches • Includes locked containers, such as vehicle trunks and suitcases • Impound procedures • Inventory of the vehicle’s contents • Routine administrative custodial procedure • May be lawfully seized and admissible as evidence

15. Warrantless Searches • Open fields • Not protected by the Fourth Amendment • Homes, persons, effects and paper are protected • Lesser expectation of privacy in an open field • Open fields includes lands and forests • Curtilage • The area immediately surrounding a dwelling

16. Warrantless Searches • Exigent circumstances • A reasonable belief that the evidence may be immediately destroyed • Hot pursuit of a suspect whom the investigators reasonably believe is in the area to be searched • An immediate need to protect or preserve life • A threat to the safety of the officers conducting a protective sweep of the premises, for other suspects

17. Exclusionary Rule • Police conduct an unlawful search or seizure • Illegally obtained evidence is inadmissible in court • Fruit of the poisonous tree doctrine • Evidence derived from an illegal search is inadmissible because of its original taint • Weeks v. United States (1914)

18. Arrest vs. Detention • Three categories of police encounters with the public • Voluntary or consensual stop—Least intrusive • Investigative detention or stop and frisk encounter • Arrest—Most intrusive • Must be based upon probable cause • Usually occur when the crime has just occurred and the person to be arrested is in the presence of the investigator • Arrest warrant is not necessary

19. Arrest Warrants • Necessary when a person to be arrested is unavailable or his or her identity is not known at the time • Similar to search warrant procedure • Investigator need not possess the warrant

20. Locating the Suspect • Early alarms contain fragmentary identification • More detailed information is published if this fails • Evidence collectedd will be collected, recorded, and preserved • Warn arrested persons of their constitutional rights to silence and legal counsel

21. The Broadcast Alarm • Broadcast alarms or pickup orders • Alert other police units to the recent crime • First officer on the scene or the investigator has the responsibility to obtain the best possible physical description of the criminal and car

22. The Broadcast Alarm • Content of wanted notices is based on characteristics that are observable and that will guide searching police • Usually limited to describing persons, vehicles, and weapons • Clothing or absence of clothing • Vehicle descriptions

23. The Broadcast Alarm • Records as Sources of Information • City and county • Vital statistics, tax, welfare, courts, schools • State • Tax records, motor vehicle license and registration files • Federal • FBI or other federal law enforcement agencies • Private • Moving companies, telephone company, other public utilities • Chamber of Commerce, banks, finance companies

24. Wanted Notices • Should provide full information about the fugitive and about areas in which he or she is likely to be found • Standard content is a photograph or sketch of the fugitive, his or her fingerprints, and an extensive personal description

25. Wanted Notices • Items of identity believed to be important: • Face—shape • Hair—color, type, and cut • Eyes—color, type, and defects • Nose—shape and size • Mouth—shape, size, and unusual characteristics • Chin—shape, size, and if dimpled • Ears—type, size, and defects • Eyebrows and beard—appearance • Scars and marks—location and type • Amputations and deformities • Speech • Peculiarities

26. Wanted Notices • Four purposes of modern wanted notice: • To provide sufficient identifying characteristics • To alert other law enforcement officers to the nature and character of the fugitive, his or her criminal history, and if armed and dangerous • To suggest activities and areas in which a search or surveillance may locate the fugitive • To delineate the crime in sufficient detail to alert officers to potential legally significant evidence available at time of arrest

27. The Arrest • Meaningful evidence may be collected at the time of the arrest that will connect the prisoner with the crime • An excellent time to guard against faulty identification of the arrestee • Search incident to arrest • May produce transfer evidence • The search is confined to the person and vicinity of the arrest

28. The Arrest • A complete body search is made at the time of booking • Suspect’s clothing may be seized • Rochin v. California (1952) • The suspect’s criminal history file should include as much information as possible • Name, sex, race, residence, occupation, physical description, speech, habits, type of crime, associates • Fingerprints and photographs • Rap sheet

29. Case Preparation • The orderly array of information collected during an investigation: all the reports, documents, and exhibits in a case • The preparation of a synopsis of the individual material in the case • An abstract written without personal conclusions, opinions, or facts • The round-up time of an investigation

30. Case Preparation • The defendant’s identity • Guidelines to evidence likely to have legal significance in establishing the accused’s identity • A witness who has seen the suspect commit the crime • A witness who has seen the suspect at the crime scene

31. Case Preparation • A witness who observed the suspect in the neighborhood • Physical evidence at the scene that places the suspect at the scene • Connect-ups • The suspect possessing the vehicle that witnesses will testify was used in the crime • The suspect having the proceeds of the crime • The suspect having an unexplained injury • The suspect having the weapon used in the crime • The suspect having been interviewed by an officer at or near the crime scene

32. Case Preparation • Possible defenses the accused might raise • Variances in the original descriptions and the actual description of the accused person • Other errors in evidence or variances in statements of witnesses • A well-supported claim of alibi • A widespread distrust of eyewitness identification

33. Case Preparation • The defendant and the corpus delicti • Affirmative evidence of the body of the crime • Time and date of the crime and the territorial jurisdiction in which it happened • Name by which the accused person has been identified • Essential elements of the crime charged • Specification of the criminal agency used to accomplish the crime and the name of the victim

34. Case Preparation • Negative evidence • Countering defenses to the crime charged • Standard negative evidence defenses • The defendant did not commit the crime • The defendant did commit the crime • No crime was committed

35. Case Preparation • Lawful procedures • Affirmative proof to dispel any allegations of unlawful activity by the police • Nothing suggestive or otherwise improper in locating and interviewing witnesses • The reasonableness of the search and the integrity of collecting and preserving evidence • A reasonable surveillance that meets the requirements of due process • The voluntariness of a confession or admission, together with other due process requirements

36. The Decision to Charge • The decision to charge is not a function or responsibility of the investigator • The prosecutor decides to prosecute or dismiss • Prosecutors may waive prosecution: • In exchange for information or testimony against a more hardened criminal • The conservation of resources may suggest a negotiated plea

37. Closing an Investigation • An investigation is successful when the crime under investigation is solved and the case closed • Reasons for closing an investigation without an arrest • The case is unfounded • The offender dies • Murder/suicide • The perpetrator confesses on his or her deathbed • Uncooperative victim • A confession is made by an offender already in custody for another crime • The perpetrator is in another jurisdiction • Plea negotiation

38. Closing an Investigation • The criminal investigation function can be terminated: • Results have been obtained in full; the case is cleared by arrest or exceptional means • Results have been obtained in part, and no further results can be obtained • No results can be obtained