STREET LAW

1. UNIT 2: Criminal Law and Juvenile Justice Chapter 12 Criminal Justice Process: The Investigation STREET LAW

2. For my part I think it a less evil that some criminal should escape than that the government should play an ignoble part – Oliver Wendell Holmes

3. The criminal justice process includes everything that happens to a person from the moment of arrest, through prosecution & conviction, to release from jail or prison • This chapter deals with the investigation phase, which includes arrest, search & seizure, interrogations, and confessions – it also looks at how the U.S. Constitution limits what police can do • There are separate state & federal criminal justice systems

4. Sequence of Events in the Criminal Justice Process • T12-1 [Handout] • Page 135

5. Introduction • Great discretion can be exercised by criminal justice system personnel at each step of the process from the police to the prosecutor to the sentencing judge to personnel in the correctional system • Many of the most critical events of a case happen before the trial (i.e., at a pretrial hearing, when the defendant may attempt to suppress certain evidence), & relatively few cases actually result in a trial • Many cases are either dropped or terminated by a plea bargain

6. Once a crime is reported, an investigation follows • If the investigation leads to an arrest, the case is said to have “cleared” • Clearance rates are usually highest for the most serious crimes because police departments focus their resources on these cases

7. Law Enforcement Models • There is on-going tension between two competing law enforcement models: the crime control model & the due process model • The crime control model emphasizes the apprehension & punishment of criminals • The due process model emphasizes the use of fair procedures in dealing with defendants • A variation of this model is the fairness or due-process of victims model that focuses on justice for the victim • Proponents of each model seek to reduce crime, but through different means

8. Criminal Procedure Rights Granted by State Constitutions • In WA, arrests based on information from informants require • a credible informant and • reliable information

9. Arrest • An arrest takes place when a person suspected of a crime is taken into custody • An arrest is considered a seizure under the Fourth Amendment, which requires that seizures be reasonable • The police may take someone into custody 1 of 2 ways • W/O an arrest warrant in certain felony cases & in misdemeanor cases (in public) if there is probable cause • With an arrest warrant • An arrest warrant is a court order commanding that the person named in it be taken into custody - it shows that a judge agrees there is probable cause for the arrest

10. Probable cause to arrest means having a reasonable belief that a specific person has committed a crime • To show probable cause, there must be some facts that connect the person to the crime • This reasonable belief may be based on much less evidence than is necessary to prove a person guilty at trial

11. The courts have allowed drug enforcement officials to use what is known as a drug courier profile • Used to provide a basis to stop & question a person or to help establish probable cause for arrest • Often based on commonly held notions concerning the typical age, race, personal appearance, behavior & mannerisms of drug couriers

12. Opposition • Individualized suspicion – as opposed to the generalized characteristics of drug couriers – should be required to establish probable cause • Proponents • Drug interdiction presents unique law enforcement problems & that the use of the profiles is necessary in order to stop drug trafficking

13. Police may establish probable cause from info. provided by citizens • Info. from victims or witnesses can be used to obtain an arrest warrant • Info. from informants can also be used if they can convince the judge that the information is reliable • Whether the informant has provided accurate info. in the past • How the informant obtained the info., & • Whether the police can corroborate (or confirm) the informant’s tip w/other info.

14. If an officer has reasonable suspicion that the person is armed & dangerous, he may do a limited pat-down of the person’s outer clothing—called a stop & frisk—to remove any weapons the person may be carrying

15. A police officer does not need probable cause to stop & question an individual on the street • You may decline & continue your activity – your silence or departure may not contribute to probable cause or reasonable suspicion • If you run from the officer, that flight may give the officer reasonable suspicion to stop you again, at this point you cannot walk away (especially in areas of high crime) • However, the officer must have reasonable suspicion to believe the individual is involved in criminal activity • The reasonable suspicion standard does not require as much evidence as probable cause – it must be more than a mere hunch • Therefore, it is easier for police to stop & question a person than it is to arrest a person

16. The most common kind of arrest is when people don’t realize they are being arrested at all • If you are taken into custody under circumstances in which a reasonable person would not feel free to leave is considered to be under arrest - whether or not you are told that

17. When an officer stops a person driving a car for violating traffic laws, the driver is technically under arrest because the driver isn’t free to leave, but must stay until the officer releases him or her

18. In 1997, the U.S. Supreme Court ruled that police can order all passengers out of a car when making a lawful traffic stop • The detention in this case is brief, usually lasting only as long as it takes the officer to check ID & registration, & typically ends when a citation (ticket) is issued for the violation

19. Probable Cause &the Law on Stops & Arrests

26. Judges &/or juries determine if a defendant is convicted or acquitted—not police officers • The level of proof required for criminal conviction is much higher than probable cause • Convictions require that the accused be found guilty beyond a reasonable doubt

27. The Use of Deadly Force - the 1985 U.S. Supreme Court case involving use of deadly force changed the law in many states • In this case, a Memphis police officer shot a young person as he fled behind a house that the officer suspected him of burglarizing • The officer did not know whether the youth was armed (he was not), but Tennessee law allowed use of deadly force if a suspect continued to flee after notice of intent to arrest

28. The Court ruled this law, as well as the practice of using deadly force against people whom officers did not have probable cause to believe were dangerous, to be an illegal seizure under the 4th Amendment • Even before the decision, a survey found that 87% of police departments allowed use of deadly force only against dangerous fleeing felons

29. A police officer may use as much physical force as is reasonably necessary to make an arrest • Most police departments limit the use of deadly force to incidents involving dangerous or threatening suspects • In 1985, the U.S. Supreme Court was asked to decide whether it was lawful for police to shoot an “unarmed fleeing felony suspect” • The Court ruled that deadly force “may not be used unless it is necessary to prevent escape, & the officer has probable cause to believe the suspect poses a significant threat of death or serious physical harm to the officer or others”

30. A police officer who uses too much force, makes an unlawful arrest or violates a citizen's rights can be sued under the federal Civil Rights Act • The government could also file a criminal action against the police • Many local governments have processes for handling citizen complaints against police misconduct

31. A police officer is never liable for false arrest simply because the person arrested didn’t commit the crime • It must be shown that the officer acted maliciously or had no reasonable grounds for suspicion of guilt • If an arrest is later ruled unlawful, the evidence obtained as a result of the arrest may not be used against the accused

32. Search and Seizure • The 4th Amendment entitles each individual to be free from unreasonable searches & seizures & sets forth conditions under which search warrants may be issued • In evaluating 4th Amendment cases, the courts seek to balance the government's need to gather evidence for law enforcement purposes against an individual's right to expect privacy

33. Like other Bill of Rights protections, the right to privacy is not absolute • Only “unreasonable” searches & seizures are prohibited • The 4th Amendment protects people from the government & those acting with the authority of the government

34. Search & Seizure law is complex – there are many exceptions to the basic rules • Once an individual is arrested, it may be up to the courts to decide whether any evidence found in a search was legally obtained • If a court finds that the search was unreasonable, then evidence found in the search cannot be used at the trial against the defendant

35. This rule – the exclusionary rule – does not mean that the defendant cannot be tried or convicted, but it does mean that evidence seized in an unlawful search cannot be used at trial

36. Traditionally, courts have found searches and seizures of private homes reasonable only when authorized by a valid search warrant • A search warrant is a court order issued by a judge who agrees that the police have probable cause to conduct a search of a particular person or place

37. However, there are many circumstances in which searches may be conducted without a warrant • Cases that deal with warrantless searches are Maryland v. Buie, the “protective sweep case,” and Minnesota v. Dickerson, the “plain feel case” • Even so, these searches must be reasonable under the 4th Amendment

38. In analyzing search cases, it is helpful to ask: Did the person complaining of the search have a reasonable expectation of privacy in these circumstances? • This approach helps explain why one’s privacy rights are usually greater in the home than on the street

39. Recent U.S. Supreme Court decision have set out rules for police officers conducting searches when issuing traffic citations • In one case, the Court ruled that a full search of a car belonging to a man stopped for speeding constituted an unreasonable search & invalidated the state law allowing such searches

40. In another case of a man stopped for speeding, the Supreme Court upheld the officer’s full search of the car—in which drugs were found—because the driver consented to the search • The Court refused to require that a defendant be advised that he or she is free to go before recognizing the consent as voluntary

41. The Court also upheld a stop for a traffic violation that was a pretext for determining whether suspected drug crimes were being committed • The stop was reasonable where the police had probable cause to believe that a traffic violation had occurred • Then, when the officers observed drugs in the hands of one of the passengers, the search was considered a plain-view search • The Supreme Court ruled that a police officer making a traffic stop may lawfully order the driver and all passengers out of a vehicle during the stop

42. Recent cases have also explored the nature of the “knock and announce” rule, which requires officers to knock on the door & announce their identity & purpose before attempting a forcible entry • The law usually requires that special reasons be given for permitting the search at night, between the hours of 10 pm & 6 am • This lessens the chances that a search will be an unreasonable invasion of a citizen’s privacy

43. Searches are generally limited to daylight hours to avoid the trauma of the “midnight knock” • In addition, it may be more dangerous for police to execute search warrants at night • If there is no response, the police may enter using force, if necessary • Police may be excused from following the law under emergency circumstances • For example—if the officer is genuinely in danger or contraband is being destroyed

44. If a court finds that evidence was collected as the result of an unlawful search, the evidence cannot be used against the defendant at trial

45. New Issues in Search & Seizure • The examples in Problem 12.4 center on search & seizure of persons or physical items, but the 4th Amendment also applies to nonphysical information, such as phone conversations • In 1967, a case went to the U.S. Supreme Court in which police intercepted conversations over a public telephone about illegal gambling activities

46. The Court held that listening to & recording phone conversations with an electronic listening device attached to the outside of a public phone booth is a “search and seizure” subject to 4th Amendment protections, & a search warrant is required because a person has a reasonable expectation of privacy even when using a public phone

47. Is it possible for police to conduct a search of your house that violates your 4th Amendment rights without ever entering your home or touching anything? • As a result of modern technology and the Supreme Court’s decision in Kyllo v. United States, the answer is yes

48. In the Kyllo case, federal agents were suspicious that marijuana was being grown in Danny Kyllo’s home & used a thermal imaging device to determine the amount of heat emanating from the house • The amount of heat was consistent with the high-intensity lamps that are often used for growing marijuana indoors • The scan showed that Kyllo’s garage roof and a side wall were relatively hot compared to the rest of his home & substantially warmer than neighboring homes

49. On the basis of this evidence, a judge issued a warrant to search Kyllo’s home, where agents found marijuana growing • After he was indicted on a federal drug charge, Kyllo challenged the use of the thermal imager without a warrant as an unlawful search under the 4th Amendment • This case raised new issues for the Court

50. Under the expectation-of-privacy test, it could be argued that Kyllo had no expectation of privacy in the heat emanating from his home because he had done nothing to conceal it or keep it private • However, under the circumstances this test seemed unfair • Because Kyllo did not know that technology could allow detection of heat waves outside his home, he saw no reason to conceal them—he assumed his actions were private