Police and the Rule of Law

Chapter 8

The means police use to identify criminal behavior is controlled by

law and court decisions.

Surveillance

Search and frisk

Trading immunity for information

Temporary detention

Apprehension and arrest

Identification of Criminal Behavior

Concept Summary 8.1 The Elements of a Search Warrant

A standard applied to search warrant applications

Unreasonableness generally exists when an officer exceeds the

scope of police authority or from a lack of probable cause

Unreasonableness

A warrant is requested from the court

An affidavit of support is submitted

Application specifies place to be searched and items to be seized

Process of Obtaining a Search Warrant

Exhibit 8.1 Categories of Evidence: Warrants are typically issued to search for and seize a variety of evidence.

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

Search Warrants, Hearsay and Informants

Terry v. Ohio (1968) findings:

May stop and search in a limited manner

Suspicious behavior is required

May not be used to harass

May not be used to conduct exploratory searches

Stop and Frisk or Threshold Inquiries

Legality of this type of search almost always relates to the legality of

the arrest

If the arrest is found invalid, then any warrantless search made

incident to it would be considered illegal and the evidence obtained

would be excluded in court

Most of these deal with exigent circumstances

Warrantless Searches: Incident to Lawful Arrest

The officer observes the crime

The officer has probable cause to believe a crime was committed

and that the suspect committed it

An Arrest is Generally Lawful if...

That the officer searches the suspect at the time of, or immediately

following, the arrest

That the officer searches only the suspect and the area within the

suspect’s immediate control

Two General Rules for Conducting a Lawful Search Incident to Arrest

Must be based on the legal standard of probable cause that a crime

related to the automobile has been or is being committed

Police who undertake the search of a vehicle must have reason to

believe that it contains evidence pertaining to the crime

Warrantless Searches of Automobile

Random stops are forbidden

Roadblocks are permissible if they:

Stop cars in a systematic fashion

Have procedures for stops that are determined by someone other

than the officer(s) at the scene

Roadblock Searches

. . . as long as there is a legal basis for making an arrest, officers

may do so, even in cases where they are motivated by a desire to

gather evidence of other suspected crimes.

Pretext Stops

Consent must be given:

Voluntarily

Intelligently

Consent Searches

The nature of a bus sweep does not invalidate consent, but was

Bostick in custody when the search occurred?

The driver had left the bus and the door was closed

The officers blocked Bostick, who was in the back of the bus

One officer was holding his gun in clear view

Florida v. Bostick: “The Bus Sweep”

The Fourth Amendment’s protection for reasonable expectations of privacy does

not cover criminal evidence that can be seen or felt by officers in specific situations.

Plain View. Coolidge v. New Hampshire (1971): Officers are permitted to

notice and use as evidence items in plain view when they are in a location that

they are permitted to be.

Open Fields. Oliver v. U.S. (1984): Officers are permitted to intrude on private

lands that are open areas, such as fields and pastures, but they may not

search the yard (“curtilage”) area immediately surrounding a house without a

warrant or a specific justification for a warrantless search.

Plain Feel. Minnesota v. Dickerson (1993): While conducting a pat-down

search of a suspect’s outer clothing, items in pockets or clothing may be seized

as evidence if they are immediately identifiable by touch as weapons or

contraband.

Searches by sight and feel

Wiretaps requiring court approval and a search warrant

Katz v. United States (1967): The government must obtain a court

order if it wishes to listen in on conversations in which the parties

have a reasonable expectation of privacy.

Material can be seized electronically without a warrant if the suspect

has no expectation of privacy.

Electronic Surveillance

Concept Summary 8.2 Warrantless Searches

When the officer believes that sufficient legal evidence exists that a

crime has been or is being committed and intends to restrain the

suspect

The officer deprives the individuals of his or her freedom

Suspect believes he or she is in custody and cannot voluntarily leave

What is an Arrest?

You have the right to remain silent

If you decide to make a statement, the statement can and will be

used against you in a court of law

You have the right to have an attorney present at the time of the

interrogation, or you will have an opportunity to consult with an

attorney

If you cannot afford an attorney, one will be appointed for you by the

state

Miranda v. Arizona (1966)

Illegally gained evidence can be used to impeach a defendant’s

testimony during trial if the defendant perjures him or her self.

At trial, testimony of a witness is permitted even though the witness’s

identity was revealed by the defendant in violation of the Miranda

rule.

Evidence is permissible if it would have been obtained anyway by

other means or sources (inevitable discovery rule).

When Illegally Gained Statements and Evidence Can Be Used

Initial errors by police in getting statements do not exclude

subsequent statements from use once a Miranda error has been

corrected.

Admissions of mentally impaired defendants can be admitted as long

as evidence shows the police acted properly and there is a

preponderance of the evidence that the party understood the

meaning of Miranda.

An erroneous admission of a coerced confession at trial can be

admitted if it is ruled a “harmless error” and would not have

automatically resulted in overturning a conviction.

When Illegally Gained Statements and Evidence Can Be Used (cont.)

Miranda only applies to an attorney, not a priest, probation officer or other

official.

A suspect can be questioned in the field without Miranda warnings if it is

necessary to protect public safety (the public safety doctrine).

Suspects need not be aware of all the possible outcomes of waiving their rights.

Miranda applies only when the suspect requests an attorney, not when one has

been brought in by family or friends.

An ambiguous reference such as “maybe I should talk to an attorney” does not

constitute a formal request for counsel.

Failure to give Miranda warnings is not illegal unless the case actually becomes

a criminal matter.

Narrowing the Scope of Miranda

Right to counsel at post-indictment lineup

No right to counsel at pre-indictment or pre-complaint lineup

Rules exist to limit “suggestiveness” of the process. The court must

weigh all factors such as:

The opportunity of the witness to view the criminal at the time of

the crime

The degree of attention by the witness and the accuracy of the

prior description by the witness

The level of certainty demonstrated by the witness

The length of time between the crime and the confrontation

Pretrial Identification Process

Weeks v. United States

Established the exclusionary rule for the federal court

Wolf v. Colorado

Warned states that the exclusionary rule may apply to them

Mapp v. Ohio

Exclusionary rule applies to state court actions

The Exclusionary Rule

The exclusionary rule as it now exists:

Has had no direct impact on police practices

Has not controlled police harassment

Has allowed guilty individuals to go free

Criticisms of the Exclusionary Rule

Illinois v. Gates - anonymous letter establishes probable cause for

search warrant

United States v. Leon - good faith exception based on magistrate-

issued warrant

Illinois v. Krull - good faith exception okay if based on a state statute

Inevitable Discovery Rule - evidence that would have been

eventually found in the same condition

Arizona v. Youngblood - mistaken loss of exculpating evidence not a

violation of rights

Arizona v. Evans - good faith reliance on apparently valid warrant is

admissible

New Cases Weaken the Exclusionary Rule

Criminal prosecution of police officers who violate constitutional

rights

Better use of internal police controls

Civil lawsuits against state or municipal police officers

Federal lawsuits against the government under the Federal Tort

Claim Act

Suggested Approaches to Dealing With Violations of the Exclusionary Rule