Police and the Rule of Law

1. Police and the Rule of Law Chapter 8

2. Police and the Courts • The U.S. Supreme Court has taken an active role in the need to balance law enforcement investigation with the constitutional rights of citizens [Why?] • Changes in the law reflect the need to maintain public safety versus the commitment to the civil liberties of criminal defendants

3. Search and Seizure • The Fourth Amendment protects suspects against unreasonable searches and seizures by placing limitations on what the police can do in their efforts to catch lawbreakers and collect evidence • Fourth Amendment: 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 • There are two parts of the Fourth Amendment—the “reasonableness clause” and the “warrants clause” • These two parts are not necessarily connected, because a search can be reasonable without a warrant, but if a warrant is required, it must meet specific requirements

4. Abandoned Property • If a person abandons their property, they cannot continue to assert privacy in the property • Examples of abandoned property include trash placed at the roadside for pickup • So, no warrant needed for this

5. Open Fields • When the police look for evidence in an open field, a search does not occur, so no warrant needed • An open field is any unoccupied or undeveloped real property outside the curtilage (grounds or fields attached to a house) of a home

6. Fly-Overs • Police do not need a search warrant to conduct a low-altitude helicopter search of private property • This type of flight is considered to be within airspace legally available to helicopters under federal regulations

7. Search Warrants and Arrest Warrants • A search warrant is an order, issued by a judge, directing officers to conduct a search of specified premises for specified objects • An arrest warrant is an order, issued by a judge, directing officers to arrest a particular individual • When warrants are necessary • Warrants are required for searches and arrests in private homes or on specific types of private property • Warrants are required for minor offenses committed out of the view of the arresting officer • This is known as the in-presence requirement

8. Warrant Requirements—3 of them • Probable Cause • The evidence needed to sustain [support] an arrest or the issuance of an arrest or search warrant • A set of facts, information, circumstances, or conditions that would lead a reasonable person to believe that an offense was committed and that the accused committed that offense • The Fourth Amendment does not explicitly define probable cause, and its precise meaning still remains unclear

9. Warrant Requirements, continued • There are several sources of information that officers can use to show probable cause • Firsthand Knowledge • If the officer witnesses a crime being committed, the warrant requirement can often be disposed of all together, and the officer will make a warrantless arrest • Informants • Can include victims, witnesses, accomplices, and people familiar with the crime or suspects in question • Informants act out of self-interest, so the reliability of the evidence may be questionable (particularly if they are guilty, and hide that fact by implicating someone else) • Hearsay evidence must be corroborated to serve as a basis for probable cause and justify the issuance of a warrant

10. Hearsay Evidence • Hearsay is an out of court statement, made in court, to prove the truth of the matter asserted. In other words, hearsay is evidence of a statement that was made other than by a witness while testifying at the hearing in question and that is offered to prove the truth of the matter stated. • The person making the statement was not under oath, so it’s not trusted • In Aguilar v. Texas (1964), the court asserted that the police must show why the police believe the informant and how the informant acquired personal knowledge of the crime

11. Anonymous Tips • To obtain a warrant, the police must prove to the judge that, considering the totality of the circumstances, an informant has relevant and factual knowledge • In Illinois v. Gates (1983), the courts eased the process of obtaining search warrants by developing a totality of the circumstances test to determine probable cause for issuing a search warrant • Telephone Tips • These are considered less reliable than tips from known informants • Such a tip must be corroborated by independent police work

12. Neutral and Detached Magistrate(Second thing needed for a warrant) • Any judge is considered a neutral and detached magistrate • Judges’ signature serves as a check on the police officers’ decisions concerning who should be arrested and/or searched • Before a warrant will be issued, a police officer must offer sworn testimony that the facts on which the request for the search warrant is made are trustworthy and true • Warrants allow the seizure of a variety of types of evidence

13. Particularity (Third thing necessary for a warrant) • The requirement that a search warrant state precisely where the search is to take place and what items are to be seized. • Included to counteract the use of general warrants by government agents. • Designed to curtail potential abuse that may result from an officer being biased • If, during the course of their search, police come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items—this is the plain view exception • Police cannot look in places that are off-limits within the scope of the warrant • The particularity requirement also applies to arrest warrants

14. Steps for Serving the Warrant • Knock and announce rule – must knock on the door and announce their presence, authority, and intentions; will secure a “no-knock” warrant, in advance, if their safety may be in jeopardy • Keep property damage to a minimum – if property damage shocks the conscience, officers may be held liable for the damages they inflict • Use appropriate force – standards governing deadly and non-deadly force apply • Pay attention to time constraints with search warrants—most warrants require daytime service • Limit the scope and manner of searches—must be reasonable in light of what is sought • No reporters allowed

15. Warrantless Searches and Arrests • Exigent (Emergency) Circumstances • Examples include hot pursuit, danger of escape, threats to evidence, and threats to others • In these situations, officers must have probable cause • Hot pursuit (not a car chase, like in films) • A legal doctrine that allows police to search premises where they suspect a crime has been committed without a warrant, when delay would endanger their lives of the lives of others and lead to the escape of the alleged perpetrator

16. Hot Pursuit, continued • Five requirements must be met: • Police must have probable cause that the suspect is on the premises that will be searched • Immediate apprehension is necessary • Hot pursuit must have commenced lawfully • The offense must be serious, typically a felony • Must occur before suspect is apprehended

17. Danger of Escape • The possibility that the suspect will escape if the police take the time to secure a warrant • May permit the police to dispense with the warrant requirement

18. Threats to Evidence and to Others • Threats to evidence • The key is that the evidence will disappear if the authorities wait for a warrant • Threats to others • If a suspect poses a risk to others • Example: a hostage situation • Can apply even if it is not clear if any one person is being threatened

19. Field Interrogation: Stop and Frisk • When an officer who is suspicious of an individual runs their hands lightly over the suspect’s outer garments to determine if he/she is carrying a concealed weapon. • The stop and frisk involves two separate actions, each requiring its own factual basis. Stopping and questioning does not automatically allow a frisk. • Terry v. Ohio was the landmark case. • Arizona v. Johnson combined the issue of stop and frisk with a vehicle stop.

20. Searches Incident to a Lawful Arrest • This is an exception to the search warrant rule and is limited to the immediate surrounding area and must be conducted at the time of, or immediately following, the arrest. • The legality of this type of search depends almost entirely on the lawfulness of the arrest. • A landmark decision in 2014 concluded that it was a Fourth Amendment violation to search the cell phone of an arrestee without a warrant

21. Automobile Searches • A warrantless search of a car must be based on the legal standard of probable cause that a crime related to the vehicle has been or is being committed. • Evidence can be seized from an automobile when a suspect is taken into custody in a lawful arrest • Searching Drivers and Passengers • Officers can order drivers and passengers out of their cars and frisk them during routine traffic stops. • Officers’ safety outweighs the intrusion on individual rights. • Passengers must comply when ordered out of a lawfully stopped vehicle.

22. Pretext Stop (Auto Searches, cont.) • A pretext stop is when an officer stops a car because he/she suspects the driver is involved in a crime, but the officer lacks probable cause and uses instead a pretext, such as a minor traffic violation to stop the car and search its interior. • As long as there is a legal basis for making an arrest, officers may do so, even in cases in which they are motivated by a desire to gather evidence of other suspected crimes.

23. Roadblock Searches (Auto Searches, continued) • While random stops are forbidden, a police department can set up a roadblock to stop cars in a systematic fashion to ensure public safety, as long as police can demonstrate that the checkpoints are conducted in a uniform manner. • Police can stop a predetermined number of cars at a checkpoint and can request each motorist to produce his or her license, registration, and insurance card.

24. Consent Searches (Auto Searches, continued) • Individuals who consent to a search, waive their constitutional rights under the Fourth Amendment. • Courts are reluctant to accept a waiver of consent and require the state to prove that the consent was voluntarily given. • Voluntariness • The major legal issue with most consent searches is whether police can prove that consent was given voluntarily • The police are usually under no obligation to inform a suspect of their right to refuse consent • Failure to tell a suspect of the right to refuse does not make the search illegal, but it may be a factor used by the court to decide if the suspect gave consent voluntarily

25. Third-Party Consent • It is permissible for one co-occupant of an apartment to give consent to the police to search the premises in the absence of the other occupant, as long as the person giving consent shares common authority over the property and no present co-tenant objects. • If one party agrees to a search and the other does not, any seizure can be ruled illegal

26. Plain View • Evidence in plain view of officers may be seized without a search warrant • Plain Touch • This is similar to the plain view doctrine, allowing an officer a pat-down of a suspect, however the pat-down must be limited to a search for weapons • The officer may not extend the “feel” beyond that necessary to determine if there is a weapon

27. Crimes Committed in an Officer’s Presence • In the case of a felony, most jurisdictions provide that an officer may arrest a suspect without a warrant when probable cause exists, even though the officer was not present when the offense was committed. • A probable cause hearing must occur within 48 hours when an arrest was made without a warrant

28. Electronic Surveillance • The oldest and most widely used form of electronic surveillance is wiretapping. • Police are able to intercept communications secretly and obtain information related to criminal activity. • The U.S. Supreme Court has increasingly limited the use of electronic eavesdropping in the criminal justice system. • 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. • Electronic eavesdropping is a search and therefore a warrant is needed.

29. Surveillance Law • The Patriot Act has expanded the number of criminal statutes for which wiretaps may be authorized. • The Federal Wiretap Act and the Foreign Intelligence Surveillance Act are the laws that control wiretapping. • There is no warrant requirement for surveillance of foreign intelligence targets the government reasonably believes are operating outside the United States. • GPS Tracking Devices • Recent case law concludes that the use of GPS tracking constitutes a search and needs to be supported by probable cause and a warrant

30. Interrogation • The Miranda Warning • The police must give the Miranda warning to a person in custody before questioning, which includes informing a suspect of the following rights: • The right to remain silent • If the suspect makes a statement, the statement can and will be used against them in court • They have the right to an attorney present during interrogation • If the suspect cannot afford an attorney, one will be appointed by the state • The suspect must state that he or she intends to remain silent and can insist on having counsel present • If a defendant perjures him (her)self, evidence obtained in violation of the Miranda warning can be used by the government to impeach his testimony during trial

31. Pretrial Identification • Once arrested, the accused is brought to the police station where they obtain information for booking purposes. • The booking process is the administrative record of the arrest. • The defendant may be fingerprinted, photographed, and required to participate in a lineup. • In a lineup, the suspect is placed in a group for the purpose of being viewed and identified by a witness • The Court established the following to judge the suggestiveness of pretrial identification procedure • 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

32. The Exclusionary Rule • The principle that prohibits using illegally obtained evidence in a trial. • Has also been extended to include derivative, or secondary evidence, which is also called the fruit of the poisonous tree. • Fruit of the poisonous tree doctrine applies not only to evidence obtained directly from a violation of the Fourth Amendment but also to evidence indirectly obtained from such a violation.

33. Current Status of the Exclusionary Rule • In the 1980s, the U.S. Supreme Court began to limit the scope of the exclusionary rule and created three major exceptions: • Independent source exception – this rule allows admission of evidence that has been discovered by means wholly independent of any constitutional violation • Good faith exception – evidence obtained with a less than adequate search warrant may be admissible in court if the police acted in good faith when obtaining court approval for their search • Inevitable discovery rule – evidence is admissible if it can be established to a very high degree of probability that police would be expected to lead to the discovery of the evidence irrespective of the search

34. Future of the Exclusionary Rule • The U.S. is the only nation that applies an exclusionary rule to protect individuals from illegal searches and seizures. • Protects the public from overzealous police. • Those who favor retention of the exclusionary rule believe it is justified because it deters illegal searches and seizures. • Suggested improvements to the rule include criminal prosecution of officers who violate constitutional rights and internal police control. • The rule results in few case dismissals