Policing within the Law Chapter 8 Policing within the Law

p Reasonable search or reasonable seizure: Reasonable means sensible, justifiable, logical, based on reason. A key to determinant in whether an officer’s actions are lawful is whether the officer has reasonable suspicion that criminal activity is occurring. See United States v. Arvizu (2002) US Border Patrol Agent stopped a vehicle near Douglas, Arizona, suspecting the operator was smuggling aliens or drugs because it was traveling a usually deserted road and set off a sensor.

However, The US Courts of Appeals reversed the district Court decision, holding that each factor of reasonable suspicions should be reviewed independently. The Court reversed this decision, relying on past Court decisions that reasonable suspicion is based on the totality of the circumstances. The facts on which the suspicion is based must be reviewed as a whole.

Probable Cause: The concept of probable cause is one of the oldest and most important in criminal law, having existed for more than 2,000 years. Probable Cause requires more than mere suspicion; it requires facts or proof that would lead a person of reasonable caution to believe a crime has been committed or that premises contain evidence of a crime.

Probable cause may be based on: Observation by officers Expertise of officers Circumstantial factors Information communicated to officers. Observational Probable Cause: This is what officers see, hear or smell, that is, evidence presented directly to the senses. This is similar to eyewitness testimony and the strongest form of probable cause.

Suspicious activities contribute to PC Suspicious activities contribute to PC. For example, a car being driven slowly can be suspicious when 1) the car has circled a block several times, 2) the people in the car are carefully observing a building, 3) the building is closed and 4) the building is located in a high crime are. All four factors contribute to PC

Expertise and Circumstantial PC: Tied to observational PC. Officers knowledge of criminal traits and their ability to “put the pieces together” may also contribute to PC. Example: Two officers questioned two men seen driving from an alley at 2:00 a.m. The officers noted the license number and occupants’ names and questioned the driver and passenger. The two men were allowed to continue, but a short time later, when the officers learned there had been a burglary in a nearby town, they forwarded the description of the car and its occupants to the local police, who apprehended the suspects. A search of the vehicle revealed burglary tools, as well as the property taken in two burglaries.

Information PC Covers a wide range of sources. In the previously described case, the information about the two suspects forwarded by the police to the nearby town constituted informational probable cause. Official Sources include police bulletins, police broadcasts, and roll-call information. It is the source that must establish PC. The source may be a victim of a crime, an informant or a witness. Complete and otherwise credible information from an eyewitness, based on personal knowledge is generally sufficient to establish PC

Stop and Frisk The simple act of stopping someone may lead to stop and frisk. The stop is also a field inquiry or threshold inquiry. Terry v. Ohio (1968) Detective McFadden, a veteran officer with 39 years experience, saw two men standing near a jewelry store. They seemed to be just talking to each other, but to McFadden, “they just didn’t look right.” Based on his experience, he suspected they were casing the store and were possibly armed. He watched for a while as the men went through the routine of walking around, looking into the store window, walking to the corner and returning to the original spot to talk with each other. A third man joined them, went inside the store for a moment and came back out.

McFadden approached the three men and identified himself as a officer McFadden approached the three men and identified himself as a officer. He asked their names and then grabbed one of the men, later identified as John Terry. McFadded made a quick pat down of Terry’s outer clothing and found what he thought was a gun. The issue: Is it always unreasonable for the police to seize a person and conduct a limited search for weapons unless there is probable cause for arrest?

Recognizing McFadden as a man of experience, training and knowledge, certainly “a man of reasonable caution,” the Supreme Court answered NO, upholding the trial court verdict. The court said there is Seizure whenever a police officer restrains an individual’s freedom to walk away, and there is a search when an officer explores an individual’s clothing even though it is called a “pat down” or “frisk”

Stop and Frisk is a protective search for weapons in which the intrusion must be limited to a scope reasonably designed to discover guns, knives, clubs and other hidden instruments that may be used to assault a police officer or others. Terry established that the authority to stop and frisk is independent of the power of arrest. A stop is not an arrest, but is a seizure within the meaning of the fourth amendment and, therefore, requires reasonableness.

Plain View and Plain feel/touch Refers to evidence that is not concealed and is seen by an officer engaged in a lawful activity. Vision can be augmented with binoculars and flashlights, but it is not proper to move or pick up items without PC. Road Blocks and Checkpoints: Sobriety Checkpoints, serve a broad social benefit or protecting motorists from drunk drivers. Informational Roadblocks: used to merely seek information or witnesses about a unrelated crime.

The Supreme Court has held that drug checkpoints, general crime control checkpoints and driver’s license checkpoints are not constitutional. The Supreme Court has upheld roadblocks at national borders, sobriety checkpoints and informational checkpoints.

Lawful Searches: The principal justifications established by the courts for the right to search are when: A search warrant is issued No warrant is issued but: Consent to search was given Exigent circumstances exist There is no expectation of privacy and, thus, no requirement for a search warrant

A search warrant is an order issued by a judge, a magistrate, with jurisdiction in the area where the search is to be made. Technically all searches are to be made under the authority of a search warrant issued by a magistrate. A search warrant is a judicial order, based on PC, directing a officer to search for specific property, seize it and return it to the Court. The search must be limited to the specific area and specific items delineated in the warrant.

Searches Conducted without a Warrant: Warrantless searches are justified when consent to search is given, when exigent circumstances exist or when no right to privacy exists. Consent must be free and voluntary, and the search must be limited to the area for which the consent was given.

When a officer conducts a warrantless search, they may be challenged on the basis that: PC was not established-in other words, given the facts, a magistrate wouldn’t have issued a warrant The officers did not have time to secure a warrant and had no justification to act without one.

If something is open to the public and therefore has no expectation of privacy, it is not protected by the 4th Amendment. This includes open fields, abandoned property and trash. The US Supreme Court has ruled that using thermal imaging to view inside home without a warrant is unconstitutional.

Elements of a Criminal Arrest The most important limitation imposed on any search is that the scope must be narrowed. General searches are unconstitutional. Elements of a Criminal Arrest An intent by an officer to make an arrest Authority to arrest A seizure or restraint An understanding by the person that he or she is being arrested.

Miranda v. Arizona suspects must be informed of their rights to remain silent, to have counsel present, to state-appointed counsel if they cannot afford one and to be warned that anything they say might be used against them. This must be given when a person is in police custody and NOT free to leave.

REVIEW PAGE 276 AND 279 FOR LANDMARK CASES THAT INPACT LAW ENFORCEMENT.