1. 7 CHAPTER Policing: Legal Aspects
CRIMINAL JUSTICE TODAY, 9E PRENTICE HALL
By Frank Schmalleger ©2007 Pearson Education, Inc.

2. Policing: Legal Environment
No one is above the law…not even the police.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

3. Policing: Legal Environment
Restraints on police behavior:
Help to ensure individual
freedoms.
Must be balanced against the need
for police to effectively do their
jobs.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

4. Changing Legal Climate
The U.S. Constitution, especially the Bill of Rights, is designed to protect citizens from abuses in police power.
Due Process is required by 4th, 5th, 6th, and 14th Constitutional Amendments.
CRIMINAL JUSTICE TODAY, 9E PRENTICE HALL
By Frank Schmalleger ©2007 Pearson Education, Inc.

5. Due Process Environment
There are three areas of police action
that are infused with due process:
Search and seizure of evidence
Arrest
Interrogation
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By Frank Schmalleger ©2007 Pearson Education, Inc.

6. Changing Legal Climate: U.S. Supreme Court
The Warren Court (1953–1969):
Clarified individual rights in the face of criminal
prosecution.
Was considered “liberal.”
Burger (1969–1986) and Rehnquist Courts
(1986–2005):
Was more conservative.
“Reversed” of some of the Warren-era decisions.
Was called the “greater good” era.
Adhered to the principle that defendants should
bear most of the responsibility in showing the
police went beyond the law.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

7. Changing Legal Climate: U.S. Supreme Court
Courts often deal with issues involving rights.
Rights violations have become the basis for dismissal of charges, acquittal of defendants, or release of convicted offenders upon appeal.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

8. Landmark Cases
Landmark cases clarify the “rules of the game”—the procedural guidelines by which the police and the rest of the justice system must abide.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

9. Search and Seizure: The Fourth Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
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By Frank Schmalleger ©2007 Pearson Education, Inc.

10. Search and Seizure: The Fourth Amendment
The Fourth Amendment protects one’s privacy from unreasonable searches and seizures.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

11. The Exclusionary Rule
Weeks v. U.S. (1914) established the exclusionary rule.
Evidence illegally seized by the police cannot be used
in a trial.
This rule acts as a control over police behavior.
Mapp v. Ohio (1961) made the exclusionary rule applicable to the states.
The 14th Amendment due process applies to local
police, not just federal officers.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

12. Fruits of Poisoned Tree
Silverthorne Lumber Co. v. U.S. (1918)
Because illegally seized evidence cannot be used in a trial, neither can evidence that derives from an illegal seizure.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

13. Search Incident to Arrest
U.S. v. Rabinowitz (1950)
The Fourth Amendment protects against unreasonable searches, but it protects people, not places.
A limited area search following arrest may be acceptable.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

14. Search Incident to Arrest
Chimel v. U.S. (1969)
Clarified the scope of a search incident to
an arrest.
Officers may search:
The arrested person
The area under the arrested person’s
“immediate control”
Officers can search for following reasons:
To protect themselves
To prevent destruction of evidence
To keep defendant from escaping
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By Frank Schmalleger ©2007 Pearson Education, Inc.

15. Good Faith Exception to the Exclusionary Rule
U.S. v. Leon (1984)
When law enforcement officers have acted in good faith, the evidence they collect should be admissible even if later it is found that the warrant they used was invalid.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

16. Good Faith Exception to the Exclusionary Rule
Illinois v. Rodriguez (1990)
U.S. Supreme Court held that the good
faith exception applied to warrantless
searches supported by state law even where
the state statute was later found to violate
Fourth Amendment rights.
Good faith can be established if the police
reasonably believe they are performing their
jobs in accordance with the law.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

17. Good Faith Exception to the Exclusionary Rule
Arizona v. Evans (1995)
U.S. Supreme Court created the computer
errors exception to the exclusionary rule.
Police officers cannot be held responsible for a
clerical error.
The exclusionary rule was intended to deter
police misconduct, not clerical mistakes made by
court employees.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

18. Plain View Doctrine Harris v. U.S. (1968)
Objects falling in “plain view” of an officer, who has the right to be in the position to have the view, are subject to seizure and may be introduced as evidence.
The Plain View Doctrine applies only to sightings by the police under legal circumstances.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

19. Plain View Doctrine U.S. v. Irizarry (1982) Arizona v. Hicks (1987)
Restricted the plain view doctrine
Officers cannot move objects to gain a view of
evidence otherwise hidden from view.
Officers cannot move or dislodge objects to
create “plain view.”
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By Frank Schmalleger ©2007 Pearson Education, Inc.

20. Plain View Doctrine Horton v. California (1990)
The U.S. Supreme Court held that even
though inadvertence is a characteristic of
most legitimate plain view seizures, it is
not a necessary condition.
It is okay to seize evidence found when such
evidence is other than that listed in a search
warrant.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

21. Emergency Searches of Property
Three threats provide justification
for emergency warrantless searches
(searching during exigent
circumstances).
Clear dangers to life
Clear dangers of escape
Clear dangers of removal or
destruction of evidence
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By Frank Schmalleger ©2007 Pearson Education, Inc.

22. Emergency Searches Warden v. Hayden (1967)
“4th Amendment does not require police
to delay in the course of an investigation if
to do so would gravely endanger their
lives or the lives of others.”
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By Frank Schmalleger ©2007 Pearson Education, Inc.

23. Search and Seizure: Arrest

24. Arrests An arrest occurs when a law enforcement
officer restricts a person’s freedom to
leave. It is:
The act of taking an adult or juvenile into
custody by authority of law for the
purpose of charging the person with a
criminal offense, a delinquent act, or a
status offense, terminating with the
recording of a specific offense.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

25. “Free-to-Leave” Test U.S. Supreme Court said:
U.S. v. Mendenhall (1980)
U.S. Supreme Court said:
“A person has been ‘seized’ within the meaning of the Fourth Amendment only if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”
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By Frank Schmalleger ©2007 Pearson Education, Inc.

26. “Free-to-Leave” Test
Yarborough v. Alvarado (2004)
Whether a person is actually free to leave can only be determined by examining the totality of the circumstances surrounding the interrogation.
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27. The “Terry” Stop Terry v. Ohio (1968)
Reasonable suspicion is needed to “stop and frisk.”
The facts must lead officers to suspect that crimes
may be occurring, and that suspects may be armed.
Justification:
“We cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.”
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By Frank Schmalleger ©2007 Pearson Education, Inc.

28. Reasonable Suspicion Versus Probable Cause
Reasonable suspicion is a general and
reasonable belief that a crime is in
progress or has occurred whereas
probable cause is a reasonable belief
that a particular person has committed
a specific crime.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

29. Reasonable Suspicion Stops
U.S. v. Sokolow (1989)
Stops must be evaluated based on a
“totality of circumstances” criterion—in
which all aspects of the defendant’s
behavior, together, provide the basis for a
legitimate stop based on reasonable
suspicion.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

30. Reasonable Suspicion Stops
U.S. v. Arvizu (2002)
“Officers are allowed to draw on their
own experiences and specialized training
to make inferences from and deductions
about the cumulative information
available.”
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By Frank Schmalleger ©2007 Pearson Education, Inc.

31. Reasonable Suspicion Stops
Minnesota v. Dickerson (1993)
“If an officer lawfully pats down a
suspect’s outer clothing and feels an object
whose contour or mass makes it
immediately apparent there has been no
invasion of the suspect’s privacy beyond
that already authorized by the officer’s
search for weapons.”
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32. Reasonable Suspicion Searches
Hiibel v. Sixth Judicial District Court of
Nevada (2004)
The court upheld Nevada’s “stop and identify”
law that requires a person to identify himself to
police if they encounter him under
circumstances that reasonably indicated that
he “has committed, is committing, or is about
to commit a crime.”
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By Frank Schmalleger ©2007 Pearson Education, Inc.

33. Reasonable Suspicion Searches
Smith v. Ohio (1990)
An individual has the right to protect his
belongings from unwarranted search.”
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34. Emergency Searches of Persons
Emergency searches of persons falls under
the exigent circumstances exception to the
warrant requirement of the Fourth
Amendment.
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35. All of the following conditions must apply.
FBI Guidelines for Conducting Emergency Warrantless Searches of Persons
All of the following conditions must apply.
At the time of the search there was probable cause to believe that evidence was concealed on the person searched.
At the time of the search there was probable cause to believe an emergency threat of destruction of evidence existed.
The officer had no prior opportunity to obtain a warrant authorizing the search.
The action was no greater than necessary to eliminate the threat of destruction of evidence.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

36. Vehicle Searches
Warrants are necessary if time and circumstances permit them.
Investigatory stops of vehicles are permissible under the Fourth Amendment if supported by reasonable suspicion.
Warrantless searches of vehicles must be based on probable cause (fleeting-targets).
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By Frank Schmalleger ©2007 Pearson Education, Inc.

37. Roadblocks and Checkpoints
Indianapolis v. Edmond (2000)
The Fourth Amendment prohibits even a brief
seizure of a motorist under a program whose
primary purpose is ultimately indistinguishable
from the general interests in crime control.
Checks for drivers’ licenses and registrations are
okay because they do not intend to “detect
evidence of ordinary criminal wrongdoing”.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

38. Roadblocks and Checkpoints
Illinois v. Lidster (2004)
Information-seeking highway roadblocks are permissible.
“The law ordinarily permits police to seek the
public’s voluntary cooperation in a criminal
investigation”.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

39. Watercraft and Motor Homes
The warrantless searching of
automobiles extends to include some
watercraft, houseboats, and motor
homes.
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40. Suspicionless Searches
Suspicionless searches may be necessary in
order to ensure public safety. Such searches
must be based on compelling interests.
Suspicionless sweeps of busses, trains, planes,
and city streets are permissible, as long as:
Police ask permission
Police do not coerce people to consent
Police do not convey the message that compliance is necessary
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By Frank Schmalleger ©2007 Pearson Education, Inc.

41. High-Technology Searches
Investigating crime is making greater use of high-technology devises and practices, such as thermal imaging devises.
If the government searches a home using a device that is not something used by the general public, and that shows something that wouldn’t be learned without entering the house, then a warrant is required.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

42. The Intelligence Function

43. Intelligence Function
Police gather information through many sources, including:
Informants
Interrogation
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44. Informants In the case of informants, a
two-pronged test usually satisfies the
probable cause requirement:
The source of the informant’s information is made clear.
The police officer has a reasonable belief that the informant is reliable.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

45. Informants Anonymous tips are evaluated on the
basis of the totality of circumstances
approach and are considered in light of
everything already known to the police.
Without other information, anonymous
tips may be used if they accurately
predict future behavior.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

46. Police Interrogation
An interrogation refers to the information-gathering activity of police officers that involves the direct questioning of suspects.
During an interrogation, there must be no:
Physical abuse
Inherent coercion
Psychological manipulation
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47. The Right to a Lawyer at Interrogation
Escobedo v. Illinois (1964)
A defendant is entitled to counsel at
police interrogations, and counsel
should be provided when the
defendant so requests.
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48. The Right to a Lawyer at Interrogation
Miranda v. Arizona (1966)
“The entire aura and atmosphere of police
interrogation, without notification of rights and
an offer of assistance of counsel, tends to
subjugate the individual to the will of his
examiner.”
Prior to custodial interrogation, a person must
be informed of his or her rights (Miranda
triggers).
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49. The Miranda Warnings 1. You have the right to remain silent.
2. Anything you say can and will be used against you in
a court of law.
3. You have the right to talk to a lawyer and to have a
lawyer present while you are being questioned.
4. If you want a lawyer before or during questioning
but cannot afford to hire a lawyer, one will be
appointed to represent you at no cost
before any questioning.
5. If you answer questions now without a lawyer here,
you still have the right to stop answering questions at
any time.
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By Frank Schmalleger ©2007 Pearson Education, Inc.

50. Waiver of Miranda Rights
A waiver of Miranda rights can be
done if such a waiver is voluntary,
knowing, and intelligent.
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51. Inevitable Discovery Exception to Miranda
Nix v. Williams (1984)
Evidence, even if it was otherwise
gathered inappropriately, can be used
in a court of law if it would have
invariably turned up in the normal
course of events.
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52. Public Safety Exception to Miranda
New York v. Quarles (1984)
Considerations of public safety were
overriding and negated the need for
rights advisement prior to limited
questioning that focused on the need to
prevent further harm.
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53. Special Kinds of Nontestimonial Evidence

54. Nontestimonial Evidence
Nontestimonial evidence generally refers to physical evidence, including very personal items that may be within or part of a person’s body, such as:
Ingested drugs
DNA
Foreign objects
Blood
Medical implants
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55. Nontestimonial Evidence
Concerns over non-testimonial evidence involve:
Right to privacy issues
Body cavity searches
Electronic eavesdropping
Electronic evidence
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56. Right to Privacy Schmerber v. California (1966)
Warrants must be obtained for bodily intrusions unless fast action is necessary to prevent the destruction of evidence by natural physiological processes.
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57. Body-Cavity Searches
Strip searches of convicts in prison, including the search of body cavities, have generally been held to be permissible.
U.S. v. Montoya de Hernandez (1985)
The Court upheld a four-day customs detention of a body packer (until nature took its course and evidence was passed from her body).
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58. Electronic Eavesdropping
Katz v. U.S. (1967)
A warrant is required to unveil what a person makes an effort to keep private, even in a public place.
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59. Electronic Eavesdropping
Title III of the Omnibus Crime Control and
Safe Streets Act of 1968 permits officers to
listen to electronic communications when one
of the following conditions is met:
An officer is one of the parties involved in the conversation.
One of the parties is not the officer but willingly decides to share the communications with the officer.
Officers obtain a warrant based on probable cause.
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60. Minimization Requirement
U.S. v. Scott (1978)
Officers must make every
reasonable effort to monitor only
those conversations that are
specifically related to the criminal
activity under investigation.
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61. The Electronic Communications Privacy Act (ECPA) of 1986
The ECPA held that officers must obtain
wiretap-type court orders to eavesdrop on
ongoing communications.
**In 2003, judges approved 1,442 wiretap requests,
allowing for around 4.3 million intercepted
conversations, 1/3 of which were found to be
incriminating.
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62. The Telecommunications Act of 1996
Made it a federal offense to knowingly use
interstate or international telecommunications
device to:
“create, solicit, or initiate the transmission of any
comments, request, suggestion, proposal, image or
other communication which is obscene, lewd,
lascivious, filthy, or indecent, with intent to annoy,
abuse, threaten or harass another person.”
This act also included a provision for
harassing and other types of prank phone
calls.
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63. The USA PATRIOT Act of 2001
The USA PATRIOT Act of 2001 made it easier for police investigators to intercept many forms of electronic communication. For example, the Act:
Allows for roving wiretaps
Broadens “sneak and peek” searches
Updates the pen/trap statue
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By Frank Schmalleger ©2007 Pearson Education, Inc.