© 2014 by Pearson Higher Education, IncUpper Saddle River, New Jersey 07458 • All Rights Reserved

Chapter 5Policing:

Legal Aspects

Scott Moller, JD

Introduction to Administration of Justice

© 2014 by Pearson Higher Education, IncUpper Saddle River, New Jersey 07458 • All Rights Reserved

5.1

5.2

5.3

5.4

Describe the circumstances under which police officers may search and seize property legally.

Explain how the Bill of Rights and democratically inspired legal restraints help protect our personal freedoms.

Describe legal restraints on police action and instances of police abuse of power.

Define arrest, and describe how popular depictions of the arrest process may not be consistent with the legal term.

CHAPTER OBJECTIVES

5.5 Describe the intelligence function, including the roles of police interrogation and the Miranda warning.

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes

5.1Describe legal restraints on police action and instances of police abuse of power.

Abuses of Police Power5.1

4

1991 – Rodney King – car chase, LAPD beating – video (1:32); officers exonerated in criminal court, retried in federal court (civil rights), civil lawsuits. CNN Obituary

2005 – Robert Davis – 64-yr old man beaten by New Orleans police. Video (2:00)

2006 – Sean Bell leaving bar, argued with patron, said to get his gun; undercover NYPD officer tried to stop him, Bell’s car hit officer, 3 officers fired 50 shots, Bell killed. Officers exonerated in court trial, but fired. Verdict/analysis video (10:22)Officer interview video (4:43)

Robert Davis

A Changing Legal Climate

5

• 1788, 1791, 1868 – US Constitution, Bill of Rights, 14th Am.– System of checks and balances between executive,

legislative and judicial branches– Designed to protect citizens against abuses of power

• 1700s-1960 – Policing was informal; ignored Constitution

• 1960s – US Supreme Court – “Warren” Court enforced constitutional rights, changed law enforcement– Chief Justice Earl Warren – liberal judicial activist– Used 14th Am. Due Process to promote individual

rights– Strict procedural requirements upon law enforcement– Miranda v. Arizona (1966)

5.1

• 1970-Present – Since the Warren Court, the USSC has grown more conservative–Pendulum has been swinging to public

safety

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes

5.2Explain how the Bill of Rights and democratically inspired legal restraints help protect our personal freedoms.

Constitutional Restraints on Police Power5.2

7

1788 Constitution had only 4 provisions relating to crime:1. Habeas Corpus – “you have the body”2. Ex post facto laws – “after the fact”3. Right to trial by jury in state where crime committed4. Treason - the only crime listed in the Constitution

1791 Bill of Rights added major protections for criminal defendants• 4th Am. – search & seizure, warrant requirements• 5th Am. – right against compelled self-incrimination and

double jeopardy; right to a grand jury and due process (fairness)

• 6th Am. – speedy & public trial, in district of crime, notice of charges, right of confrontation, compulsory process, right to atty

• 8th Am. – no excessive bail or fines, no cruel & unusual punishment

1868 14th Amendment – designed to undo slavery, used for much more

1. Citizenship clause2. Privileges & immunities clause3. Due process clause4. Equal protection clause

© 2014 by Pearson Higher Education, IncUpper Saddle River, New Jersey 07458 • All Rights Reserved

Constitutional Amendments

8

5.1Bill of Rights. This criminal right granted by:

Amendment

Right against unreasonable search and seizure 4th

Right against arrest without probable cause 4th

Right against self-incrimination 5th

Right against “double jeopardy” 5th

Right to due process of law 5th, 6th, 14th

Right to a speedy trial 6th

Right to a jury trial 6th

Right to know the charges 6th

Right to cross-examine witnesses 6th

Right to a lawyer 6th

Right to compel witnesses on one’s behalf 6th

Right to reasonable bail 8th

The right against excessive fines 8th

The right against cruel and unusual punishments 8th

Applying rights to all citizens, regardless of state law

14th

The Fourth Amendment: 2 Clauses5.2

9

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.

“The touchstone of the Fourth Amendment is reasonableness.” Chief Justice William Rehnquist, Ohio v. Robinette (1996) (emphasis added)

1. THE SEARCHES & SEIZURES CLAUSEThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and

2. THE WARRANT CLAUSEno 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.

Early Policing: What 4th Amendment?5.2

10

NYPD officer Alexander “Clubber” Williams (1839-1917) provides an example of informal “Political Era” policing. Colorful yet controversial, he was effective in combatting street gangs but his informal methods included brutality, corruption, and contempt for the courts.

His methods were eventually rejected. The Reform Era of policing that followed, along with Supreme Court rulings, made policing more formal, professional and respectful of constitutional rights.

“There is more law at the end of the policeman’s nightstick than in all the decisions of the Supreme Court.”Alexander Williams

The Warren Court: Nationalization5.2

11

Warren Court (1953-1969) – Chief Justice Earl WarrenThe liberal, activist Warren court scrutinized the US criminal justice system to promote individual rights, using the 14th Am. to extend federal constitutional protections to state courts – a process known as the “nationalization” of the Bill of Rights.Subsequent, more conservative courts: Burger (1969-86), Rehnquist (1986-2005) and Roberts (2005-Present) have chipped away at those protections and tended to rule more in favor of public security.

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes

5.3Describe circumstances under which police officers may conduct searches or seize property legally.

How courts make law5.3

13

• The Constitution usually speaks in general terms.• Since Marbury v Madison (1803), the US Supreme

Court has claimed the sole authority to interpret the Constitution, via its decisions in cases brought before it.

• When the USSC accepts a case for review, it issues a writ of certiorari, which orders the lower court to produce the records of the case for review, and the USSC reviews the case and renders a decision.

• The USSC sometimes renders a landmark decision with far-reaching effects for our criminal justice system and society.Landmark case – A precedent-setting court decision that

clarifies or changes the “rules of the game” and changes the law and practical day-to-day operations of the system.

14

Landmark Cases: Exclusionary Rule5.3Case Rule

Weeks v US (1914) Exclusionary Rule invented

Silverthorne Lumber Co. v US (1920)

Fruit of the Poisonous Tree - derivative evidence is excluded

US v Rabinowitz (1950) Search Incident to Arrest (SIA) is deemed “reasonable” for officer safety

Mapp v Ohio (1961) Exclusionary Rule applied to the states video (11:11)

Katz v US (1967) 4th Am. protects privacy, not places

Chimel v California (1969)

SIA may include the lunge area only

Minnesota v Olson (1990)

Overnight guests have REP and are protected from warrantless searches

Georgia v Randolph (2006)

Consent of one co-tenant does not allow search if other present co-tenant objects

Fernandez v California (2014)

Consent of one co-tenant may suffice after objecting co-tenant leaves

15

Good Faith Exceptions5.3

Case Good Faith Exception applies to:

US v Leon (1984) Good Faith Exception to the Exclusionary Rule created

Massachusetts v Sheppard (1984)

Judge assured police erroneous warrant was valid

Illinois v Krull (1987) Arrest statute later ruled unconstitutional

Illinois v Rodriguez (1990) Victim with apparent authority (key) consented to entry to dwelling

Arizona v Evans (1995) Computer records out of date/erroneous

Davis v US (2011) Search based on precedential case that was subsequently overturned

Herring v US (2009) Error of “isolated negligence,” not systemic or reckless

Since the Exclusionary Rule exists to teach law enforcement to abide by the Constitution, evidence mistakenly seized in violation but in good faith may still be admitted in court.

Stop (Seizure) & Frisk (Search)

Terry v. Ohio (1968) – Officer without probable cause to arrest approaches men he believes are casing a store, asks their names, pats down outside of clothing, finds a gun

Rule: Officer with reasonable and articulable suspicion that a crime has been committed or is about to be committed may conduct an investigative stop and frisk for weapons

• This is an objective test• Courts consider the totality of the circumstances,

in light of the officer’s training and experience

5.3

Probable Cause – a fair probability that evidence of a crime will be foundReasonable Suspicion – a minimal level of objective justification for a stop

17

Plain View Doctrine5.3

Case Rule

Harris v US (1968) Plain view doctrine established

Arizona v Hicks (1987) Item’s incriminatory character must be immediately apparent

Horton v California (1990) Inadvertence is no longer necessary

Minnesota v Dickerson (1993)

Plain feel must be apparent – no manipulation

Kyllo v US (2001) Item visible only via device not in general public use requires a search warrant

Evidence visible to the police in plain view may be seized without a warrant if the police have a legal right to be in the viewing area and cause to believe the item is contraband or evidence associated with criminal activity.

18

Exigent Circumstances/Emergency5.3

Case Rule

Warden v Hayden (1967) Emergency exception to warrant requirement

Wilson v Arkansas (1995) Knock and announce rule outlined

Richards v Wisconsin (1997)

No blanket authority for no-knock authorization in drug cases. Police must prove exigent circumstance case-by-case

Brigham City v Stuart (2006)

Police may enter home without warrant, to treat or prevent serious injury

Police may warrantlessly act to address emergencies.FBI justifies emergency warrantless action for:

1. Danger to life2. Risk of escape3. Risk of removal or destruction of evidence

Search and Seizure: Landmark Cases

Executing Search Warrants5.3

Case Rule

Maryland v Buie (1990) Protective sweep doctrine allows police to search for people hiding while serving arrest warrant

Illinois v MacArthur (2001)

Police may prevent occupant from entering home while executing search warrant

Muehler v Mena (2005) Police may detain occupants while executing search warrant

Hudson v Michigan (2006)

No suppression for violation of no-knock

US v Grubbs (2006) Anticipatory warrants are valid

Police have to follow rules in executing arrest warrants and search warrants. If the police fail to follow the rules, the items seized could be suppressed.

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes

5.4Define arrest, and describe how popular depictions of the arrest process may not be consistent with legal understandings of the term.

Arrest is the act of taking one into custody, by authority of law. One is “seized” for purposes of the 4th Am. when his/her freedom to leave is restricted. Many states only allow misdemeanor warrantless arrest for crime committed in presence of an officer.

Arrest defined; landmark cases5.4

Case Rule

US v Robinson (1973) Police may search incident to arrest

Payton v New York (1980) Barring consent or exigent circumstances, officer may not enter residence to make a warrantless arrest

US v Mendenhall (1980) “Free to leave” test

Atwater v Lago Vista (2001) Arrest for seat belt violation upheld

Yarborough v Alvarado (2004)

17-year old who confessed to murder while in police station was not in custody, as police had made it clear he was free to leave

22

Terry Stop, Search Incident to Arrest5.4

Case Rule

Terry v Ohio (1968) Police with reasonable suspicion may stop and frisk a suspect

US v Robinson (1973) Arresting officer may search suspect and immediate “lunge” area incident to arrest

US v Sokolow (1989) Stop to be assessed based on totality of the circumstances

California v Hodari D (1991)

A fleeing suspect is not in custody

Illinois v Wardlow (2000) Unprovoked flight can support reasonable suspicion to stop a suspect

• Police may stop and frisk based on reasonable suspicion.

• Police may lawfully search an arrestee and the area under his/her immediate control for officer safety.

Searches of Persons5.4FBI guidelines for conducting emergency warrantless searches of persons:

1. There was probable cause at the time of the search to believe that evidence was concealed

2. There was probable cause to believe an emergency threat of destruction of evidence existed

3. The officer had no prior opportunity to obtain a warrant; and

4. Action was no greater than necessary

Case Rule

US v Montoya de Hernandez (1985)

Alimentary canal drug smuggler may be detained until reasonable suspicion is alleviated

Winston v Lee (1985)

Police may not order surgery to retrieve bullet from non-consenting suspect’s chest

24

Vehicle Searches5.4

Case Rule

Carroll v US (1925) Warrantless search of vehicle based on reasonable suspicion of contraband is valid

South Dakota v Opperman (1976)

Warrantless inventory search of vehicle is reasonable

Whren v US (1996) Pretextual stop based on traffic offense is valid

Wyoming v Houghton (1999)

Police may inspect passengers’ belongings (passengers may challenge)

Arizona v Gant (2009)

Search incident to arrest of vehicle only allowable if suspect can access vehicle, or to search for evidence of crime of arrest

Vehicles receive less protection from searches because they are:1. Highly mobile – can leave jurisdiction before a warrant can be

obtained2. Highly regulated – subject to licensure, registration and

inspection, resulting in a lessened expectation of privacy

Roadblocks, Checkpoints, Other Vehicles5.4

Case Rule

US v Martinez-Fuerte (1976)

Suspicionless border checks upheld as necessitated by heavy traffic

Michigan Dept. of State Police v Sitz (1990)

DUI sobriety checkpoints upheld as intended to protect public safety

Illinois v Lidster (2004) Information-seeking roadblocks upheld as seeking public’s voluntary cooperation to solve crime

US v Villamonte-Marquez (1983)

Watercraft included as vehicles

California v Carney (1985) Motorhomes included as vehicles

US v Hill (1988) Houseboats included as vehicles

In some circumstances, the US Supreme Court has allowed police to detain persons without probable cause.This table also addresses broadened vehicle definitions.

Suspicionless Searches

26

Where the government demonstrates a compelling interest in public safety that outweighs any rights to individual privacy, the US Supreme Court has held that a search may be conducted without a warrant and without suspicion.

5.4

Case Rule

National Treasury Employees Union v Von Raab (1989)

Mandatory drug testing upheld for US Customs drug interdiction workers carrying firearms

Skinner v Railway Labor Executives’ Association (1989)

Mandatory drug/alcohol testing for railway crews following serious train accidents

Florida v Bostick (1995) Warrantless consent searches of baggage on city buses okay

Learning ObjectivesAfter this lecture, you should be able to complete the following Learning Outcomes

5.5Describe the intelligence function, including the roles of police interrogation and the Miranda warning.

The Intelligence Function: Informants5.5

Police question suspects, witnesses and informants as part of their investigations.In Aguilar v. Texas (1964), the US Supreme Court set forth a 2-pronged test for probable cause based on informant testimony:

1. Source of informant’s information is made clear2. Officer reasonably believes informant is reliable

Case Rule

US v Harris (1971) Informant’s self-incriminating statements deemed reliable

Illinois v Gates (1983) Totality of the circumstances test supplants Aguilar test

Alabama v White (1990)

Anonymous tip of predictive behavior can support investigative stop

Florida v JL (2000) Anonymous tip that person has a gun is NOT sufficient for investigative stop

Interrogation: Landmark Cases5.5

Case Rule

Brown v Mississippi (1936) No physical abuse

New York v Quarles (1984) Public safety exception to Miranda

Fulminante v Arizona (1991) No psychological manipulation

Davis v US (1994) Request for attorney must be unequivocal

Interrogation is the information-gathering activity of police that involves direct questioning of suspects and other witnesses.

“The entire aura and atmosphere of police interrogation without the notification of rights and an offer of assistance of counsel tends to subjugate the individual to the will of his examiner.” Miranda v Arizona (1966)

The Wire Video (3:32)

Interrogation

30

5.5

Case Rule

Escobedo v. Illinois (1964) Right to attorney during interrogation

Miranda v Arizona (1966) Suspect must be advised of rights

Edwards v. Arizona (1981) Once attorney is requested, all questioning must cease

US v Patane (2004) No Miranda warnings are needed to obtain non-testimonial evidence

Moran v Burbine (1986) Intelligent and knowing waiver defined

Nix v Williams (1984) Inevitable discovery exception to Miranda

There are two triggers that must both be present to make the advisement of Miranda rights necessary:

1. Custody2. Interrogation

Miranda rights5.5

32

Knowing Intelligent

VoluntaryVoluntary

Waiver of

Miranda

Waiver of Miranda Rights5.5

This is the formI use to questionofficers for a Miranda Motion to Suppress hearing

Suppression5.5

The Electronic Communications Privacy Act

34

The Electronic Communications Privacy Act of 1996 established the due-process requirements that law enforcement officers must meet in order to legally intercept wire communications

• Wiretaps and bugs• Pen registers record numbers dialed from a phone• Tracing devices determine the number from which a

call emanates

5.5

Case Rule

US v Scott (1978)

Minimization: restrict surveillance to criminal acts being investigated

© 2014 by Pearson Higher Education, IncUpper Saddle River, New Jersey 07458 • All Rights Reserved

5.1

5.2

5.3

5.4

The Fourth Amendment to the Constitution specifically prohibits unreasonable searches.

The Bill of Rights was designed to protect the people from governmental abuse.

Legal restraints on police actions stem primarily from the Bill of Rights of the U.S. Constitution.

An arrest takes place when a law enforcement officer restricts a person’s freedom to leave.

CHAPTER SUMMARY

When suspects who are in custody are subject to interrogation they must be read their Miranda rights.5.5