Police and the Rule of Law Chapter 8

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 Identification of Criminal Behavior

Concept Summary 8.1 The Elements of a Search Warrant

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 Unreasonableness

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

Exhibit 8.1 Categories of Evidence: Warrants are typically issued to search for and seize a variety of evidence.

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 Search Warrants, Hearsay and Informants

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 Stop and Frisk or Threshold Inquiries

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 Warrantless Searches: Incident to Lawful Arrest

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

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 Two General Rules for Conducting a Lawful Search Incident to Arrest

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 Warrantless Searches of Automobile

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 Roadblock Searches

... 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. Pretext Stops

Consent must be given: Voluntarily Intelligently Consent Searches

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 Florida v. Bostick: “The Bus Sweep”

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. Searches by sight and feel

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. Electronic Surveillance

Concept Summary 8.2 Warrantless Searches

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 What is an Arrest?

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 Miranda v. Arizona (1966)

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). When Illegally Gained Statements and Evidence Can Be Used

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. When Illegally Gained Statements and Evidence Can Be Used (cont.)

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. Narrowing the Scope of Miranda

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 Pretrial Identification Process

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 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 Criticisms of 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 New Cases Weaken 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 Suggested Approaches to Dealing With Violations of the Exclusionary Rule