Chapter 8 Notes
Chapter 8 Notes CRJ 101
Midlands Technical College
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CRJ 101 Intro to Criminal Justice Chapter 8 Police and the Rule of Law Learning Objectives 1) Describe how the Fourth Amendment controls law enforcement officials. 2) Define search and arrest. 3) Distinguish between search warrants and arrest warrants. 4) Explain when warrants are required. 5) Recognize that there are three requirements that must be met before a warrant can be secured. 6) Explain the rules for serving warrants. 7) Discuss several types of warrantless searches and arrests. 8) Explain the Miranda v. Arizona decision. 9) Identify what purpose a lineup serves. 10) Discuss the exclusionary rule, including its extensions and exceptions. Key Terms Search: a government actor’s infringement on a person’s reasonable expectation of privacy. Open Field: any unoccupied or undeveloped real property outside the curtilage of a home. Curtilage: grounds or fields attached to a house. Arrest: occurs when a police officer takes a person into custody or deprives a person of freedom for having allegedly committed a criminal offense. Search Warrant: an order, issued by a judge, directing officers to conduct a search of specified premises for specified objects. Arrest Warrant: an order, issued by a judge, directing officers to arrest a particular individual. InPresence Requirement: a police officer cannot arrest someone for a misdemeanor unless the officer see the crime occur. To make an arrest for a crime the officer did not witness, an arrest warrant must be obtained. Probable Cause: the evidentiary criterion necessary to sustain an arrest or the issuance of an arrest or search warrant; a set of facts, information, circumstances, or conditions that would lead a reasonable person to believe that an offense was committed and that the accused committed that offense. Particularity: the requirement that a search warrant state precisely where the search is to take place and what items are to be seized. Probable Cause Hearing: if a person is subjected to a warrantless arrest, a hearing is held to determine whether probable cause exists that he committed the crime. Exigent Circumstances: emergency or urgent circumstances. Hot Pursuit: a legal doctrine that allows police to perform a warrantless search of premises where they suspect a crime has been committed when delay would endanger their lives or the lives of others and lead to the escape of the alleged perpetrator. StopandFrisk: the situation in which police officers who are suspicious of an individual run their hands lightly over the suspect’s outer garments to determine whether the person is carrying a concealed weapon; also called a threshold inquiry or patdown. Search Incident to a Lawful Arrest: an exception to the search warrant rule, limited to the immediate surrounding area. Bus Sweep: police investigation technique in which officers board a bus or train without suspicion of illegal activity and question passengers, asking for their identification and seeking permission to search their baggage. Plain View Doctrine: the principle that evidence in plain view of police officers may be seized without a search warrant. Miranda Warning: the requirement that when a person is custodially interrogated, police inform the individual of the right to remain silent, the consequences of failing to remain silent, and the constitutional right to counsel. Public Safety Doctrine: the principle that a suspect can be question in the field without a Miranda warning if the information the police seek is needed to protect public safety. Booking: the administrative record of an arrest, listing the offender’s name, address, physical description, date of birth, employer, time of arrest, offense, and name of arresting officer; it also includes photographing and fingerprinting the offender. Lineup: placing a suspect in a group for the purpose of being viewed and identified by a witness. Exclusionary Rule: the principle that prohibits using illegally obtained evidence in a trial. Fruit of the Poisonous Tree: secondary evidence obtained from a search warrant that violates the exclusionary rule. Good Faith Exception: the principle that evidence may be used in a criminal trial even though the search warrant used to obtain it was technically faulty, as long as the police acted in good faith when they sought the warrant from a judge. Inevitable Discovery Rule: the principle that evidence can be used in court even though the information that led to its discovery was obtained in violation of the Miranda rule if a judge finds it would have been discovered anyway by other means or sources. Notes Police and the Courts o Once a crime has been committed and an investigation has begun, police use different means and methods to obtain the evidence needed for criminal prosecution. o The U.S. Supreme Court’s primary concern is to balance the law enforcement agent’s need for a free hand to investigate crimes with the citizen’s constitutional right to be free from illegal searches and interrogations. Search and Seizure o The search for incriminating evidence, the seizure of that evidence, and its use during a criminal trial are the keys to police investigation. o Fourth Amendment protects criminal suspects against unreasonable searches and seizures by limitations imposed on police as to what they can and cannot do to catch criminal offenders and collect evidence. Two most important parts of the fourth amendment: the “reasonable clause” and the “warrants clause” The reasonable clause: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . .” The warrants clause: “. . . 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.” o A search can be reasonable without a warrant, but if a warrant is required, it must meet specific requirements. Defining a Search if the officer is looking in a place where a person would expect privacy, then this is considered a search (usually includes private property, such as cars, houses, and personal effects.) o Examples not considered searches are abandoned property, open fields, and flyovers. Abandoned Property: if a person abandons their property they cannot continue to assert privacy in the property. (Ex. Placing your trash at the side of the road for pickup.) Open Field: when police look for evidence in an open field a search has not formally occurred (Ex. Parks, public streets, or remote, unprotected area on private property) FlyOvers: flying over property to observe and determine whether or not something illegal is happening in order to obtain a search warrant. Defining an Arrest arrest is one of the most common types of seizures. o A legal arrest occurs when the following conditions exist: The police officer believes that sufficient legal evidence exists that a crime is being or has been committed and intends to restrain the suspect The police officer deprives the individual of freedom The suspect believes that he is in the custody of the police officer and cannot voluntarily leave. He has lost his liberty. Search Warrants and Arrest Warrants o The fourth amendment does not state that you have to have a warrant for all searches and arrests; however, there are situations where warrants are necessary. These include: Arrests and searches in private homes or on specific types of private property. Arrests for minor offenses committed out of the view of the arresting officer. Warrant Requirements: there are three requirements that must be met before a warrant can be issued. o Probable Cause. To establish probable cause, the officer must provide the judge or magistrate with information in the form of written affidavits, which report either their own observations or those of private citizens or police undercover informants. If the judge or magistrate believes that the information is sufficient to establish probable cause, he or she will issue a warrant. Police officers have to provide factual evidence to define and identify suspicious activities. Officers must also show how they obtained the information and provide evidence of its reliability. Firsthand knowledge. Ideal source of information. Usually is defined as what the officer himself witnesses. Informants. Can include victims, witnesses, accomplices, and people familiar with the crime or suspects in question. Reliability of evidence provided may be questionable. U.S. Supreme Court says that evidence from informants must be corroborated for it to serve as a basis for probable cause. Anonymous tips. The Court ruled that to obtain a warrant, 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. Details are key. Telephone tips. Anonymous tips given over the phone. Again, must be corroborated or be factual in details. o Neutral and Detached Magistrate. Warrants can only be issued by neutral and detached magistrates. Any judge is considered this. o Particularity. The particularity requirement was included in the fourth amendment to counteract the use of general warrants by government agents. A search warrant must be straight forward and state precisely and specifically the places to be searched and the items to be seized. An arrest warrant must specify the name of the person to be arrested or provide a sufficiently specific description of the individual. Serving the Warrant. Once a warrant is secured, it needs to be served. There are procedural steps that must be followed when a warrant is served. The steps include: o Knock and announce. When a warrant is served, officers must knock on the door and announce their presence, authority, and intentions. The knockandannounce rule can be waived if it is likely that an announcement would threaten officer safety. “noknock” warrants authorize officers in advance that they can make entry without knocking and announcing. o Keep property damage to a minimum. Forcible entry to a premises may be necessary. It could be necessary to damage a person’s property when searching for items named in the warrant. The standard is “shocks the conscience.” This means that if the damage caused to property shocks the conscience, the officer(s) involved may be held liable for the damages they cause. o Use appropriate force. The use of force may be necessary for officers during the service of warrants. o Pay attention to time constraints with search warrants. Warrants may require daytime service and may limit the amount of time officers can take to search for the evidence they seek. o Limit the scope and manner of searches. Must be reasonable in light of what is being sought. o No reporters allowed. Explains itself. Videotaping the execution of the warrant for training purposes is allowed. Warrantless Searches and Arrests o A warrantless search or arrest must be reasonable. o Over the years, the Supreme Court has carved out some significant exceptions to the warrant requirement. These include: exigent (emergency) circumstances, stop and frisk, searches incident to lawful arrest, automobile searches, consent searches, searches based on plain view, and crimes committed in an officer’s presence. o Every person that is subject to a warrantless arrest must be brought before a judge for a probable cause hearing. Exigent Circumstances. (Emergency Circumstances) include hot pursuit, danger of escape, threats to evidence, and threats to others. In each situation, the officer must have probable cause. o Hot Pursuit. Sometimes end badly. In order to justify a warrantless search by claiming hot pursuit, there are five requirements that must all be met: The police must have probable cause that the suspect is on the premises to be searched. The police must have reason to believe that an immediate apprehension is necessary. Hot pursuit must be commenced from a lawful vantage point. The offence in question must be serious, usually a felony. The pursuit must occur prior to or close to apprehension of the suspect. o Danger of Escape. If there is a possibility that a suspect will escape if the police take time to secure a warrant, they may be able to dispense with the warrant requirement. o Threats to Evidence. If the police have probable cause to believe that an individual is about to destroy critical evidence, they can enter private property and seize the evidence without first obtaining a warrant. o Threats to Others. If a suspect poses a risk to others, this also can be considered an exigent circumstance. Example: hostage situation. The Supreme Court stated in a case that “police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” Field Interrogation: Stop and Frisk o Important exception to the rule requiring a search warrant is the stopandfrisk procedure. o Typically occurs when a police officer encounters a suspicious person on the street and frisks or pats down his outer garments to determine whether he is in possession of a concealed weapon. o The stopandfrisk search consists of two distinct components: (1) the stop, in which a police officer wishes to briefly detain a suspicious person in an effort to effect crime prevention and detection and (2) the frisk, in which an officer pats down, or frisks, a person who is stopped, in order to check for weapons. The purpose of the frisk is protection of the officer making the stop. Search Incident to a Lawful Arrest o A search without a warrant is permissible if it is made incident to a lawful arrest. Incident means close in time to an arrest, usually right after the arrest. o The police officer who searches a suspect incident to a lawful arrest must observe two rules: (1) the search must be conducted at the time of or immediately following the arrest, and (2) the police may search only the suspect and the area within the suspect’s immediate control. The search may not legally go beyond the area where the person can reach for a weapon or destroy any evidence. o The legality of this type of search depends almost entirely on the lawfulness of the arrest. Automobile Search o The U.S. Supreme Court also established that certain situations justify the warrantless search of an automobile on a public street or highway. o Evidence can be seized from an automobile when a suspect is taken into custody in a lawful arrest. o The Supreme Court has given additional leeway terms of making stops due to the fact that police are confronting significant social problems such as drug trafficking and terrorist activity. o Scope of the Automobile Search Two types of situations: “pure” vehicle searches and vehicle searches following driver arrests and/or detentions. A “pure” vehicle search is when the police seek to search a vehicle without regards to if the vehicle is being driven by a person and the search does not concern the passenger. If probable cause exists to believe that an automobile contains criminal evidence, a warrantless search by the police is permissible, including closed containers in the vehicle. With probable cause, a vehicle can be stopped and searched, contraband can be seized, and the occupant can be arrested, all without violating the Fourth Amendment. o Searching Drivers and Passengers Officers can order drivers out of their cars and frisk them during routine traffic stops. Officers’ safety outweighs the intrusion on individual rights. o Pretext Stops A pretext stop is one in which police officers stop a car because they suspect the driver is involved in a crime but, lacking probable cause, they use a pretext such as a minor traffic violation to stop the car and search its interior. As long as there is a legal basis for making an arrest, officers may do so, even in cases in which they are motivated by a desire to gather evidence of other suspected crimes. o Roadblock Searches Unless there is at least reasonable belief that a motorist is unlicensed, that an automobile is unregistered, or that the occupant is subject to seizure for violation of the law, stopping and detaining a driver to check his or her license violates the Fourth Amendment. Police may not routinely stop all motorists in the hope of finding a few drug criminals. City of Indianapolis v. Edmond The general rule is that any seizure must be accompanied by individualized suspicion; the random stopping of cars to search for drugs is illegal A police department can set up a roadblock to stop cars in some systematic fashion to ensure public safety. As long as the police can demonstrate that the checkpoints are conducted in a uniform manner and the operating procedures have been determined by someone other than the officer at the scene, roadblocks can be used. Consent Searches. o This is when police officers can do warrantless searches when the person in control of the area or object consents to search. When you consent to a search, you essentially waive your constitutional rights under the Fourth Amendment. o Consent to searches has to be given voluntarily and intelligently. Otherwise, the courts will not accept the waiver. o Voluntariness The major issue with most consent searches is whether the police can prove that consent was given voluntarily. Consent cannot be the result of duress or coercion, expressed or implied. o ThirdParty Consent It is permissible for one cooccupant of an apartment to give consent to the police to search the premises in the absence of the other occupant, as long as the person giving consent shares common authority over the property and no present co tenant objects. If one party gives consent to search but the other does not, then the police cannot legally search the premises. o Bus Sweeps Police board buses, and without suspicion of illegal activity, question passengers, ask for identification, and request permission to search luggage. Drug enforcement officers, after obtaining consent, may search luggage on a crowded bus without meeting the Fourth Amendment requirements for a search warrant or probable cause. o “Free to Go” Officers do not have to inform people that they are free to go before they ask for consent to search the vehicle. The touchstone of the Fourth Amendment is reasonableness, which is assessed by examining the totality of the circumstances. Plain View o Police can search for and seize evidence without benefit of a warrant if it is in plain view. o Plain view doctrine o Plain Touch: The Supreme Court added a plain touch or plain feel corollary to its plain view doctrine. The patdown must be limited to a search for weapons, and the officer may not extend the “feel” beyond that necessary to determine whether what is felt is a weapon. Crimes Committed in an Officer’s Presence o The decision to arrest is often made by the police officer during contact with the suspect and does not rely on a warrant being used. o As a general rule, if the police make an arrest without a warrant, the arrestee must be promptly brought before a magistrate for a probable cause hearing. o Noncriminal Acts: in 2001 the U.S. Supreme Court upheld the right to arrest a suspect for a traffic violation. Warrantless Searches Action Scope of Search Exigent circumstances Limitless if exigency exists. Stop and frisk Patdown of a suspect’s outer garments. Search incident to arrest Full body search after a legal arrest. Automobile search If probable cause exists, full search of car including driver, passengers, and closed containers found in trunk. Search must be reasonable. Consent search Warrantless search of person or place is justified if the suspect knowingly and voluntarily consents to a search. Plain view Suspicious objects seen in plain view can be seized without a warrant. Crime committed in an Arrest followed by search incident to arrest. officer’s presence Electronic Surveillance o Electronic devices enable people to listen to and record the private conversations of other people over telephone, through walls and windows, and even over longdistance phone lines. By using these devices, police are able to intercept communications secretly and obtain information related to criminal activity. o Wiretapping is the oldest and most widely used for of electronic surveillance. o With approval from the court and a search warrant, law enforcement officers place listening devices on telephones to overhear oral communications of suspects. Can also be placed in homes and cars. The evidence collected is admissible. o The Katz doctrine is usually interpreted to mean that the government must obtain a court order if it wishes to listen in on conversations in which the parties have a reasonable expectation. Electronic eavesdropping is a search, even though there is no actual trespass. Therefore, it is unreasonable, and a warrant is needed. Surveillance Law o It is much more difficult for the police to obtain a search warrant pertaining to electronic surveillance. o Two key laws that restrict government wiretap authority. 1. the Federal Wiretap Act. It requires court approval of all realtime eavesdropping on electronic communications, including voice, email, fax, Internet, and those connected with criminal investigation. The Patriot Act: controversial antiterrorism legislation enacted after 9/11. Expanded the number of criminal statutes for which such wiretaps can be authorized. 2. the Foreign Intelligence Surveillance Act of 1978. Authorizes wiretapping of any alien the government believes is a member of a foreign terrorist group or is an agent of a foreign power. No probable cause required. FISA warrants are authorized by the secret Foreign Intelligence Surveillance Court (staffed by 11 judges, appointed by the chief of justice of the U.S. Supreme Court o In 2007, President Bush signed the Protect America Act into law. It removed the warrant requirement for surveillance of foreign intelligence targets that the government “reasonably believes” are operating outside the United States. Permitted electronic surveillance of all communications, including some domestic ones that involved foreign targets. Technologies in Local Law Enforcement o There are several technological advances that help keep tabs on the criminal element. Some devices even permit listening to and looking in on the activities of everyone, not just the criminals with no warrant required. Include surveillance cameras and GPS tracking devices. o Surveillance Cameras: installed in public locations and are monitored by officers from a distance. Were initially used as investigative tools. Now they are monitored on a regular basis. o GPS Tracking Devices: GPS tracking is constitutional in tracking of criminals. The use of a GPS tracking device constitutes a search and needs to be supported by probable cause and a warrant. Interrogation o After a suspect is taken into custody, it is routine to question him about his involvement in the crime. The police may hope to find out about coconspirators or even whether the suspect was involved in similar crimes. o The Miranda Warning: suspects in custody must be told that they have the following rights if they are subjected to interrogation: They have the right to remain silent If they decide to make a statement, the statement can and will be used against them in a court of law They have the right to have an attorney present at the time of the interrogation, or they will have an opportunity to consult with an attorney If they cannot afford an attorney, one will be appointed for them by the state The police must give this information to a person before questioning begins. To enjoy the benefits of Miranda the suspect must state that he or she intends to remain silent. If a suspect asks for an attorney, all questioning must stop until the attorney is present. o The Miranda rule is still used today o Although statements made by a suspect who was not given the Miranda warning or received it improperly cannot be used against him in a court of law, it is possible to use the illegally gained statements and the evidence they produce in some well defined instances: If a defendant perjures himself, evidence obtained in violation of the Miranda warning can be used by the government to impeach his testimony during trial. At trial, the testimony of a witness is permissible even though her identity was revealed by the defendant in violation of the Miranda rule. Pretrial Identification o After the accused is arrested, he or she is ordinarily brought to the police station, where the police list the possible criminal charges. They also obtain information such as a description of the offender and the circumstances of the offense, for booking purposes. o Booking: date and time of arrest are recorded; arrangements are made for bail, detention, or removal to court; and any other information needed for identification is obtained. The defendant may be fingerprinted, photographed, and required to participate in a lineup. o Lineups are one of the primary means that the police have of identifying suspects. o The accused has the right to have counsel present at the postindictment lineup or in a showup. Right to counsel does not apply until after formal charges are made. The Exclusionary Rule o The principal means used to restrain police conduct. o Protects people’s Fourth and Fifth Amendment rights. o Has been extended to include “fruit of the poisonous tree” o Three major exceptions: Independent Source Exception. Allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. Good Faith Exception. Evidence obtained with a less than adequate search warrant may be admissible in court if the police officers acted in good faith when obtaining court approval for their search. Inevitable Discovery Rule. Evidence obtained through an unlawful search or seizure is admissible in court if it can be established, to a very high degree of probability, that police investigation would be expected to lead to the discovery of the evidence. Significant Cases in Policing Case Issue Decision Aguilar v. Texas Informants If police use informants to develop probable cause to 1964 obtain a warrant, they must show why the informant should be believe and how the informant obtained his or her knowledge. Alabama v. White Anonymous tips An anonymous phone tip can help formulate probable 1990 cause for a warrant, provided the tip is corroborated by independent police work. Breithaupt v. Abram Drawing blood from Police can seize a blood sample from a suspect without a 1957 suspects warrant, provided they have probable cause to do so. Brigham v. Stuart Warrantless search, threats If police have an objectively reasonable basis to believe the 2006 to occupants occupant of a dwelling is seriously injured or threated with injury, they may enter without a warrant. California v. Greenwood Abandoned property Abandoned property does not enjoy Fourth Amendment 1988 protection. Carroll v. United States Automobile searches The police may search an automobile without a warrant, 1925 provided they have probable cause to do so. Chimel v. California Search incident to arrest The police may search a suspect after a lawful arrest. 1969 Coolidge v. New Hampshire Plain view The police can search for and seize evidence without 1971 benefit of a warrant if it is in plain view. Florida v. Bostick Consent to search on a bus Drug enforcement officers, after obtaining consent, may 1991 search luggage on a crowded bus without meeting the Fourth Amendment requirements for a search warrant or probable cause. Harris v. United States Scope of a search based on The scope of a search should be limited to the items named 1947 a search warrant in the search warrant. Hudson v. Michigan Knock and announce Evidence need not be excluded because police failed to 2006 announce their presence when serving a warrant. Katz v. United States Definition of a search A search occurs when a government actor infringes on a 1967 person’s reasonable expectation of privacy. Kirby v. Illinois Right to counsel in lineups The accused has no right to have counsel present at a pre 1972 indictment lineup. Mapp v. Ohio Exclusionary rule, states Evidence obtained in violation of the Fourth Amendment is 1961 not admissible in a state criminal trial (the exclusionary rule applies to the states. Minnesota v. Olson Warrantless search, In the absence of hot pursuit, if there is danger that the 1990 suspect escape suspect will escape , police can enter private property and arrest the suspect without a warrant. Miranda v. Arizona Custodial interrogation Suspects subjected to custodial interrogation must be 1966 advised of their Fifth Amendment privilege against self incrimination. Nix v. Williams Exclusionary rule, Evidence obtained through an unlawful search or seizure is 1984 inevitable discovery admissible in court if it can be established to a very high degree of probability, that police investigation would be expected to lead to the discovery of the evidence. Oliver v. United States Search of an open field Open fields do not enjoy the Fourth Amendment 1984 protection. Payton v. New York Search warrant The Fourth Amendment prohibits warrantless, 1980 requirement nonconsensual entry into private property for the purpose of making an arrest. Riley v. California Search incident to arrest Police cannot search a cell phone incident to arrest without 2014 a warrant. Schneckloth v. United States Consent If a suspect consents to a search, the officer does not need a 1973 warrant or probable cause, but such consent must not be the result of duress or coercion. Segura v. United States Exclusionary rule, Evidence that has been discovered by means on wholly 1984 independent source independent of any constitutional violation will be admissible. Silverthorne Lumber Co. v. Fruit of the poisonous tree The exclusionary rule extends to “fruit of the poisonous United States tree,” or derivative evidence. 1920 Terry v. Ohio Stop and frisk An officer may stop and frisk a person if he or she has 1968 reasonable suspicion that criminal activity is afoot. United States v. Leon Exclusionary rule, good Evidence obtained with a less than adequate search warrant 1984 faith may be admissible in court if the police officers acted in good faith when obtaining court approval for their search. United States v. Matlock Cooccupant consent It is permissible for one cooccupant of a dwelling to give 1974 consent to the police to search the premises in the absence of the other occupant, as long as the person giving consent shares “common authority” over the property and no present cooccupant objects. United States v. Wade Right to counsel in lineups The accused has the right to have counsel present at a post 1967 indictment lineup. Warden v. Hayden Hot pursuit Hot pursuit authorizes the police to dispense with the 1967 Fourth Amendment warrant requirement. Weeks v. United States Exclusionary rule, federal Evidence obtained in violation of the Fourth Amendment is 1914 court not admissible in a federal criminal trial (the exclusionary rule is created.)