Legal Studies * Mr. Marinello ARRESTS AND WARRANTS

 The criminal justice process includes everything that happens to a person form arrest through prosecution and conviction to release from the control of the state.  An arrest takes place when a person suspected of a crime is taken into custody.  An arrest is a “seizure” under the Fourth Amendment, and the Constitution requires that seizures be reasonable. ARREST

 A person can be taken into custody in one of two ways: by an arrest warrant or without a warrant if there is “probable cause.”  A person, once taken into custody under circumstances in which a reasonable person would not feel free to leave, is considered to be under arrest, whether he or she is told that or not.  An arrest warrant is a court order commanding that the person named in it be taken into custody. ARREST WARRANT

 A warrant is obtained by the filing of a complaint before a judge or magistrate.  The person filing the complaint is usually a police officer but may be a victim or witness.  The person making the complaint must also describe and swear to the facts and circumstances of the alleged crime.  The judge will then decide to issue a warrant or not, based on the information provided. ARREST WARRANT PROCEDURES

 Probable cause is defined as a reasonable belief that a person has committed a crime.  This reasonable belief may be based on much less evidence than is necessary to prove a person guilty at trial.  When arresting without a warrant, police must use their own judgment as to what is reasonable under the circumstances of each case.  In all cases, probable cause requires more than mere suspicion or a hunch. Some facts must be present that indicate that the person arrested has committed a crime. ARREST WARRANT PROCEDURES

 Information from victims or witnesses can be used to obtain an arrest warrant.  Police also use information from informants to establish probable cause if they can convince a judge that the information is reliable.  In determining the reliability of an informant’s tip, a judge will consider all the circumstances.  These include whether the informant has provided accurate information in the past, how the informant obtained the information, and whether the police can corroborate, or confirm, the informant’s tip with other information.

 The police do not need probable cause to stop and question individuals whom they reasonably suspect to be involved in criminal activity.  When questioned, such individuals do not have to answer.  In a few states, the refusal to answer can be used in determining probable cause.  In most states, the right against self- incrimination prohibits silence from being used as part to determine probable cause. PROBABLE CAUSE

 In all states a person who flees when police ask for identification can have this factor considered in determining probable cause.  In addition, a police officer may stop and frisk (pat down) the suspect for weapons based on the officer’s experience and the suspiciousness of the individual.  A police officer may use as much physical force as is reasonably necessary to make an arrest.  However, most police departments limit the use of deadly force to incidents involving dangerous or threatening suspects.. SEARCHES

 If a police officer uses too much force or makes an unlawful arrest, the accused may bring a civil action for a violation of the federal Civil Rights Act.  The government can also file a criminal action against the police.  In addition, many local governments have processes for handling citizen complaints about police misconduct.  *A police officer is never liable for false arrest simply because the person arrested did not commit the crime.

 It must be shown that the officer acted acted maliciously or had no reasonable grounds for suspicion of guilt.  Also, if an arrest is later ruled unlawful, the evidence obtained as a result of the arrest may not be used against the accused.

 The expectation that Americans have for privacy is protected by the Constitution.  The Fourth Amendment sets out the right to be free from “unreasonable searches and seizures” and establishes the conditions under which search warrants may be issued.  This limits the power of government; it does not apply to actions by private citizens. SEARCH AND SEIZURE

 If an individual violates your privacy, however, you may be able to make a claim under tort law.  Balanced against the individual’s right to privacy is the government’s need to gather information.  In the case of the police, this is the need to collect evidence against criminals and to protect society against crime.  The Fourth Amendment does not give citizens an absolute right to privacy, and it does not prohibit all searches-only those that are unreasonable.

 Courts decide if searches are reasonable. As a general rule, courts have found searches and seizures reasonable when authorized by a valid warrant.  Courts have recognized that certain searches conducted without a warrant can also be reasonable. EX:____________________  Although the language of the Fourth Amendment is relatively simple, search and seizure law is complex.

 Once an individual is arrested, it is up to the courts to decide whether any evidence found in a search was legally obtained.  If a court finds that a search was unreasonable, then evidence found in the search cannot be used at the trial against the defendant.  This principle, called the exclusionary rule, does not mean that the defendant cannot be tried or convicted, but it does mean that the evidence cannot be used in the trial.

 A search warrant is a court order. It is obtained from a judge who is convinced that there is real need to search a person or place.  Before a judge issues a warrant, someone, usually a police officer, must file an affidavit-a sworn statement of facts and circumstances-that provides the probable cause to believe that a search is justified. SEARCHES WITH A WARRANT

 If a judge issues a search warrant, the warrant must specifically describe the person or place to be searched and the particular things to be seized.  Once a search warrant is issued, the search must be conducted within a certain number of days specified in the warrant.  A search warrant does not usually authorize a general search of everything in the specified place.  EX: Police cannot search desk drawers if they are looking for 27 inch television sets.

 When the police have a warrant to search a house, the Fourth Amendment’s reasonableness requirement usually means that they must knock, announce their purpose and authority, and request permission.  Police generally cannot enter a house forcibly-unless they have met this “knock and announce” test.  The Supreme Court has allowed for “no-knock” entries when circumstances present a threat to the officers or where evidence would likely be destroyed if advance notice were given.  The court also ruled that a state law authorizing “no- knock” warrants in all felony drug dealing cases violates the 4 th Amendment.