Chapter 7 Police and the Constitution: The Rules of Law Enforcement

Learning Objective 1 Compare the four major sources that may provide probable cause

FOURTH AMENDMENT Prohibits against unreasonable searches and seizures The requirement of probable cause to issue a warrant REASONABLENESS Varies from case to case Logical, practical, sensible, intelligent U.S. v Fisher (textbook)

PROBABLE CAUSE More than mere suspicion – “reasonably lead to the belief that an offense has been or is being committed “ Sources of Probable Cause: 1. Personal observation 2. Information 3. Evidence 4. Association

PROBABLE CAUSE FRAMEWORK Most arrests are made without a warrant Allows police officers to do their jobs effectively Limits situations in which police officers make arrests, but gives officers room to act within the framework Once an arrest is made, the arresting officer must prove to the judge that probable cause existed

Learning Objective 2 Explain the exclusionary rule and the exceptions to it

Learning Objective 2 The Exclusionary Rule: Prohibits the use of illegally obtained evidence in court Forces police officers to gather evidence properly The Fruit of the Poisoned Tree: Evidence obtained through illegally obtained evidence is also inadmissible

EXCLUSIONARY RULE EXCEPTIONS Exceptions to the exclusionary rule: Inevitable discovery - evidence gathered illegally is admissible if police would have discovered it anyway Brewer v. Williams (1977) Nix v. Williams ( 1984 ) Good Faith – admissible if collected in good faith by police United States v. Leon ( 1984 ) Herring v. United States ( 2009)

Learning Objective 3 Distinguish between a stop and a frisk, and indicate the importance of the case Terry v. Ohio

STOP and FRISK Burden is on police officer to prove there is reasonable suspicion to stop and frisk Stops: Brief detention of a person by the police for questioning. A stop requires reasonable suspicion. Frisks: A pat-down or minimal search by police to discover weapons. It is conducted for the protection of the officer.

TERRY v. OHIO Major Supreme Court decision justifying quick action when a PO. has RCTB that persons were armed and dangerous and were about to commit a violent crime. Police officers practical experience allow them to make inferences in certain situations and are given a great deal of leeway. Totality of the circumstances test = specific and articulable facts + rational inferences

INFORMANTS and REASONABLE SUSPICION “Bare bones tips” do not constitute raesonable suspicion Tips from known informants are satisfactory Anonymous tips have to be independently verified

STOP and FRISK Stop: When a law enforcement officer has reasonable suspicion that a criminal activity is about to take place Limits the extent to which a police officer can detain someone Officer can require suspect to ID himself Frisk: A protective measure PO. Has to be frisking for weapons

Learning Objective 4 List the four elements that must be present for an arrest to take place

ARRESTS Purpose is to take a person into custody to detain them for a criminal charge Not like a stop ( brief detention based on reasonable suspicion) Arrest involves deprivation of liberty and is deserving of a full range of constitutional protections and requires probable cause

ARRESTS The elements of arrest: The intent to arrest The authority to arrest Seizure or detention The understanding of a person that they have been arrested

ARREST with a WARRANT ARREST WARRANT: Establish Probable Cause to arrest an individual not in custody – obtain an arrest warrant Includes name and crime Signed and authorized by judges ( determine probable cause) Doesn’t give cops authority to enter a dwelling

ARREST with a WARRANT Doesn’t give PO’s authority to enter a dwelling: Need to announce themselves State their identity and purpose before entering Exigent circumstances - need not announce What are exigent circumstances: Armed suspect – strong threat of violence and injury to PO or others Person in process of destroying evidence or escaping Commission of a felony at the time of entry ( + hot pursuit ) Hudson v. Michigan (2006)

ARRESTS WITHOUT A WARRANT Arrest warrants are not always required Most arrests are made without a warrant Warrantless arrests can be made if: 1. Offense was committed in the officers presence or 2. Po. has knowledge that the crime was committed 3. Po. Has probable cause that the person committed it

WARRANTLESS ARRESTS PO can make warrantless arrests for crimes they did not see if they have probable cause that a felony has been committed. Misdemeanors have to be committed in the officers presence in order to make an arrest PO cannot enter a private home without a search warrant in order to make a warrantless arrest absent exigent circumstances Payton v. NY 9 (cant force entry into home) Steagold v. United States ( need a search warrant)

Learning Objective 5 List the four categories of items that can be seized by the use of a search warrant

LAWFUL SEARCHES AND SEIZURES Expectation of privacy is a key issue in searches Search = governmental intrusion on a citizen’s reasonable expectation of privacy Katz v. U.S. ( phone booth ) Individual must prove that they expected privacy Society must recognize that the expectation was reasonable California v. Greenwood ( 1988) Lowered expectation of privacy in certain situations Garbage bag on the curb = no expectation of privacy Courts apply Greenwood to “ abandoned DNA”

SEARCH and SEIZURES WARRANTS Search Warrants: To protect law enforcement from charges that they have infringed on peoples privacy Court order allowing search of specific area Officer must provide to a judge:  Information that there is PC that a crime has or will be committed  Information on the premises to be searched, suspects to be found, illegal activity at the location and items to be seized

SEARCH WARRANTS Warrant specific – where to search and what will be seized. PO must provide judge with specifics Seizure = taking property ( suspected illegal) by government Search must be reasonable Plain view OK; restricted by items being searched for

SEARCH WARRANTS Four categories of items that can be seized by use of a search warrant: 1. Items that resulted from a crime 2. Items that are inherently illegal for anyone to possess 3. Items that can be called “evidence” of a crime 4. Items used in committing the crime

Learning Objective 6 Explain when searches can be made without a warrant

EXCEPTIONS TO SEARCH WARRANTS Hot Pursuit Border Areas Searches Incident to Arrest ( Most Common)  U. S. v Robinson  Done every time  Need to find/search for weapon ( safety)  Protect destruction of evidence  Police may search lunge able area ( area in suspects immediate control for weapons and contraband ( Chimel v California

Learning Objective 6 Searches incidental to arrest United States v. Robinson (1973) The officer’s need to confiscate any weapons the suspect may be carrying The need to protect any evidence on the suspect’s person from being destroyed Chimel v. California (1969) The Carroll decision Searches with consent

CONSENT SEARCHES Second most common type of warrantless search Individual gives permission to search home, person, and belongings Has to be voluntary ( no threats )  Age, intelligence and physical condition  Coercive behavior by the police  Length of questioning and location Knock and talk Argument people are intimidated/ don’t know they can refuse Florida v. Bostick – officers don’t have to inform suspect of their right to refuse Ohio v Robinette - do not need to tell citizens they are free to go after the initial stop

AUTOMOBILE SEARCHES After arrest – officers can search the whole car Warrant not needed when officer has probable cause that vehicle has contraband/ evidence  Heavy burden on police  Timeliness – drive away and destroy evidence  Vehicle has less of an expectation of privacy

AUTOMOBILE SEARCHES Whren v. US – true motivation of traffic stop is irrelevant as long as PC that law has been broken Can search every part of vehicle including container as long as they have PC New York v. Benton – warrantless searches OK if :  Person is close enough to car to grab weapon or destroy evidence  Officer believes that auto contains evidence pertinent to the crime that the suspect is arrested for

PLAIN VIEW EXCEPTION Plain view doctrine Coolidge v. New Hampshire (1971) The item is positioned in the officer’s view The officer is legally in a position to notice the item The discovery of the item is inadvertent The officer immediately recognizes the illegal nature of the item

ELECTRONIC SURVEILANCE For investigatory purposes electronic devices may include: Electronic surveillance Electronic devices ( wiretaps/hidden microphones) Devices used to trace movement and trace and record telephone calls

ELECTRONIC SURVEILANCE BASIC RULE: CONSENT + PROBABLE CAUSE (KATZ v. US ) Consent must be given by one of the parties There is a warrant authorizing the device Warrant must: 1. Detail “particularity” of conversations 2. Name suspects and places 3. Show probable cause that a specific crime has or will be committed

DIGITAL AND VIDEO SURVEILLANCE Local Police are welcoming CCTV because they are force multipliers The latest equipment produces clear, detailed images Privacy concerns are still dominant

Learning Objective 8 Recite the Miranda warning

Learning Objective 8 You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to speak with an attorney and to have the attorney present during questioning. If you so desire and cannot afford one, an attorney will be appointed for you without charge before questioning.

INTERROGATION AND MIRANDA Purpose – get information and/or a confession Fifth amendments protects against self incrimination HISTORY: 1936 case – defendant beaten whipped; /confessed to murder/ Supreme court ruled against coercion defendant must be told of right to remain silent and cannot deny request for an attorney

MIRANDA CASE Introduced the concept of inherent coercion even without physical coercion, the atmosphere of a police interrogation is in itself coercive Concerned about the treatment of suspects during interrogation Every suspect needs to be protected from coercion and giving warnings Result is Miranda warnings If not given, the statements = the fruits of the poisoned tree

Learning Objective 9 Indicate situations in which a Miranda warning is unnecessary

MIRANDA WARNING REQUIRED Suspect is in custody Custody = arrest situation in which a normal person would not feel free to leave Custodial Interrogation = custody + questions Miranda warnings only required if custodial interrogation takes place

MIRANDA NOT REQUIRED Miranda is not required: When police do not ask suspect questions that are testimonial in nature When the police have not focused on a suspect and are questioning witnesses at the scene When a person volunteers information before being asked When the suspect has given a private statement During a stop and frisk when no arrest has been made During a traffic stop

SUSPECT WAIVES MIRANDA Waiver must be voluntary Can be either oral or in writing Suspect must waive rights “ knowingly and intelligently” Officer should ask “ Do you understand your rights ?” “ Are you willing to speak to me?” Suspect invokes their right to silence – its over and stop immediately

LAW ENFORCEMENT RESPONSE Law enforcement didn’t like it Officers have developed different strategies:  Conditioning strategy  De- emphasizing strategy  Persuasion strategy

FUTURE OF MIRANDA Dickerson v. U.S. ( 2000) – case made a strong statement in support of Miranda A series of Supreme Court case have begun to erode Miranda 2004 case – Miranda warnings are merely prophylactic ( prevent violations of the Fifth amendment) More interrogations are being recorded – law enforcement feels that it takes away any hints of coercion and renders Miranda unnecessary

Learning Objective 10 List the three basic types of police identification

POLICE IDENTIFICATION Basic Types of Police Identification 1. Showups 2. Photo Arrays 3. Lineups Sixth Amendment rights to council do not apply Police must show they had to act quickly Booking procedures = non testimonial = no lawyer