Transcript Federal Criminal & Civil Remedies for Unconstitutional Conduct

Arrest ©
• Probable Cause
• Terry Stop is not necessarily an unreasonable
seizure
• An Arrest occurs when the subject submits or
PO takes actual physical control
• Seizure is unreasonable
– PO lacks reasonable grounds for seizure
• Lacks PC
• Unable to articulte facts to support reasonable suspicion
– PO failed to obtain a AR warrant when one was
necessary (arrest inside home)
– PO uses excessive force
Consequences of Illegal Arrest ©
• Exclusionary Rule
• Lawsuit under 1983 or State Law
• PO’s arrest
Three Types of Citizen Encounters ©
• Voluntary Encounters/Consensual
• Terry Stops/Investigative
• Arrests
Free to Leave ©
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Time and place
Number of POs
PO speaks in authoritarian voice
Uses overbearing or threatening language
PO touching subject
Po surrounding suspect
Po obstructing path of exit
Draw a weapon
PO tells subject they are a suspect
Suspect is lone or with others
Did PO tell suspect they are free to leave
Barricades or roadblocks
Firing weapon or firing warning shot
Yelling stop or freeze
Handcuffing or grabbing
Grabbing car keys or DL
PO/Subject Participation ©
PO’s level of cognition
• Hunch
• Reasonable suspicion
• PC
Subjects participation
• Choice
• Somewhere in between
• No Choice
Informant ©
• Someone who wishes to remain anonymous or
did they identify themselves
• Provides detailed account of criminal activity
they observed
• Provides a description sufficient to enable police
to identify subject
• When tip carries low reliability
– Police must corroborate information independently
such as predicting subjects actions
• Info from other POs is reliable for PC but will be
excluded if original PO was inaccurate.
Terry/Investigative Stop ©
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Communicate with others to verify subjects explanation
Computer check
Show-up identification
Finger print detainee
Bring in the Narco Dogs
Request permission to
– Conduct Search
– Administer Breathalyzer
– Perform other procedures to further investigation with permission
NO MIRANDA WARNINGS
Terry /Investigative Stop No/Nos ©
• Taking subject to police station
• Searching subject for anything other than a
weapon
• Displaying weapon, using handcuffs or placing
subject in to squad car unless these measures
are necessary for safety
• Moving the subject to a second location when
the move in not necessary to further
investigation or safety
• Investigating matters beyond the scope of the
stop for which the officer lacks RS
US v. Place ©
“Do nothing that is more intrusive than
necessary to accomplish the purpose of
the stop, having due regard for safety.”
90 minutes is generally to long for a terry
stop.
Traffic/Vehicle Stops ©
• All vehicle stops = seizure
• PC to make traffic stop/RS to stop motorist for
investigation
• PO cannot randomly stop motorists for DL or
Registration Checks
– Roadblocks are not random in that they are
authorized and regulated by police management prior
to being instituted
• Pretextual traffic stops are authorized and
subjective reasons are irrelevant
What Can PO Do During Traffic Stop ©
• Order motorist and passengers out of the vehicle and
remain outside during stop
• Ask if they have weapons in vehicle
• Visually look inside vehicle & shine flashlight
• Run criminal background check
• RS that occupants are armed and dangerous to frisking
occupants & searching passenger compartment
• Asking about drugs in vehicle courts have found is
productive use of downtime during traffic stop
• De-escalating traffic stop into a voluntary encounter is
acceptable
• Physical arrest for traffic violation is OK but no arrest for
traffic citation
• Racial profiling is not OK
A Constitutional Arrest ©
• Terry v. Ohio creates a distinction between
an arrest and a defacto arrest
• Prompt review of a warrantless arrest
– 48hours
– Preliminary Hearing in Cook County
• PC for arrest
• PC for Search Warrant = Probability that
evidence of criminality, or contraband, is
located on the premises
Specific Articulable Facts to
Establish PC ©
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Physical Evidence
Info from other Law Enforcement Agencies
Police Records
Eyewitnesses
Victims
Informants
Rational Inferences based on experience
Furtive movements
False or Improbable answers
Warrants ©
• Person to be seized must be described with
particularity
• To arrest someone in their own home
– Need an Arrest Warrant unless
– Exigent circumstances
• To arrest someone at someone elses home
– You need a SW for the home and an AW for the
person
• Knock and Announce
Exceptions to the SW Requirement ©
• Exigent Circumstances (only for serious
offenses)
– Endangered lives
– Enable suspect to escape
– Lend to evidence destruction
• Hot pursuit
Interrogations and
Confessions
FIFTH AMENDMENT
No person shall be … compelled
in any criminal case to be a
witness against himself.
Interrogations and
Confessions
Constitutional Implications
•4th = Exclusionary rule
•5th = Privilege against self
incrimination
•6th = Right to Counsel
•5th = Federal Due Process
•14th = State Due Process
Confessions
• Need to Voluntary
• So that they can be considered trustworthy
• Incriminating statements elicited during
consensual investigative techniques are
always admissible
Three Phases of a Criminal Case
• Investigative Questioning
• Custodial Interrogation
• Prosecutorial
Torture
• Violates the “Free & Voluntary Rule”
• Confessions or inculpatory statements obtained
by law enforcement by coercion in violation of
the “free & voluntary rule” will be suppressed to:
– Protect against convictions using unreliable
evidence
– Preserve the suspects freedom of choice
– Deter PO from intolerable interrogation tactics
Two Part “Voluntary Test”
• Part One = Source of Pressure (Has the
government exerted pressure sufficient to
exclude voluntariness)
– Beatings & guns to the head are coercive and
not voluntary
• Part Two = What impact did this pressure
have on the suspect
Less Coercive Means
• Necessitate and examination of the totality
of the circumstances
– Pressure exerted by the police
– Suspects degree of susceptibility
– Conditions in which the interrogation took
place
Pressure exerted by the police
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Torture, beatings, and the gun to the head are inherently coercive and are not
allowed
Coercion Can Also Include
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Threats
False Promises
Trickery
Deceit
Psychological Coercion
Angry Lynch Mob
Arresting Innocent Members of the Suspects Family
Taking Children Away
Promising Confession Will Prevent Prosecution
Promising Leniency when PO is unable to affect outcome
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PO is allowed to make truthful representations about suspects legal predicament
PO can tell suspect his cooperation will be mentioned to the prosecutor
PO can tell suspect he will encourage the prosecutor to be lenient
CONFESSIONS MUST BE PROVEN VOLUNTARY BY A PREPONDERANCE OF THE EVIDENCE
Suspects Degree of Susceptibility
Conditions Under Which the
Interrogation Took Place
4th Amendment Exclusionary Rule
• If Search is Unconstitutional
• If Arrest is Unconstitutional
• If Investigative Stop is Unconstitutional
Then confession is excluded and any
evidence which is “fruit of the poisonous
tree” will be excluded
Compulsory Self Incrimination
No person … shall be compelled in any criminal
case to be a witness against himself
• Testimonial evidence is controlled by the 5th
Amendment
The right of the people to be secure in their
persons … against unreasonable searches …
shall not be violated
• Physical Evidence is controlled by the 4th
Amendment and is frequently admissible against
the interests of an arrestee/defendant
4th Amendment Protection Against
Unreasonable Searches
Self Incrimination
Three areas which could impact a court’s finding that
evidence seized from an arrestees person or physical
appearance was obtained in an unreasonable manner
• Bodily movement
– An arrest must be constitutional
• Bodily privacy
– Thing to be seized in search must be publicly viewable, cannot
view naked body for evidence
• Body Integrity – Blood
– What was the reason for initial seizure or any additional seizures
Testimonial Self Incrimination
• Perjury v. Contempt
• Also applicable outside of a court room in
police interrogations
– Right to remain silent
– Privilege against answering self incriminating
questions
– Individuals have the right ANYWHERE not to
answer questions that would tend to
incriminate
Grand Jury
• You are compelled to appear under
penalty of contempt
• Any question which might have a tendency
to incriminate you do not have to answer
Testimonial Self Incrimination
• Does not extend to that which was made
voluntarily before criminal activity became
apparent
– Journals
– Writing
– Records
• Subpoena Deuces Tecum
– Used to compel the production of certain items
– Challengeable because production could eventually
lead to evidence of crime.
Compelling Testimonial Evidence
• Must create a risk of being convicted of a
crime.
• Already tried for the crime convicted or
acquitted
• Absolute or Transactional Immunity
• “Use” immunity
• Binding on State and Federal prosecutions
Invoking 5th Amendment Right
• Defendant's decision not to testify is final
and cannot be used against him/her
• Taking the witness stand revokes the
privilege
• Jury cannot be told defendant invoked the
privilege
• 5th Amendment Privilege does not extend
to other types of proceedings
Appearance and Body Evidence
• Exposed to public scrutiny
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Handwriting
Photos
Fingerprints
Voice Samples
Field Sobriety Tests
• Evidence not seized in a reasonable manner
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Naked body
Blood samples
Surgically removed bullet
DNA samples
Compulsory Production of
Appearance Evidence
• During Terry Stop
– Transport a short distance for show-up
– Never to police station
– Fingerprints and/or photo’s OK
– Illegal arrest taints appearance evidence
Intrusive Body Searches
What is reasonableness for 4th Amendment
Searches below a suspects skin surface
• Government need for evidence exceeds the
intrusive nature into suspects privacy or bodily
integrity
• Clear indication desired evidence will be found
• Search warrant or exigent circumstances
• Procedure to retrieve Evidence is reasonable
and the procedure is performed in a reasonable
manner
SW Requirement
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Penetrating the body’s surface
Saliva, urine, semen or pubic hair samples
Other bodily tissue or fluids
Manually inspecting rectal or genital cavities
Anything which would cause sever pain or
discomfort
• Rick to health
• Intensive humiliation
Exigent Circumstances
• Blood, breath or urine samples in DUI cases
• Gunshot residue test
• Reaching into mouth (“mouth is not a sacred
orifice”)
• Stomach pumping is OK if less intrusive means
are not available
• Strip Searches and body cavity searches must
be based on the reasonable suspicion that
search will produce drugs, weapons, or
contraband (In Illinois controlled by Statute)
6th Amendment Right to Counsel
• In all criminal prosecutions the accused
shall enjoy the right … to have the
assistance of counsel
– To avoid unjust convictions
– To bring effectuation to the rights of the
Defendants who might not know about them
without attorney
Guideon v. Wainwright
• Appointed Counsel in Felony Cases
• Appointed Counsel is now provided to
everyone who cannot afford an attorney if
there is jeopardy of imprisonment
• But not if punishable by fine only
Conduct of the Police
• Once prosecution has been initiated no
contact by police with the subject/arrestee
unless attorney is present or knowing &
intelligent waiver
• Juveniles can only waive their right if
parent, youth officer, or counsel
Counsel is Present
• To observe constitutional requirements are being
complied with and raise objections if they are not
in
– Line-ups
– Show-ups
– Custodial Arrests
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Consultation in Private
Atty call the shots on participation during interrogation
Atty decides which answers client answers
PO must grin and bear it
No taping or listening in on atty/client conversations
Use of Force/Deadly Force in
Making a Seizure ©
Use the “reasonable officer standard” and
force should be examined from the
perspective of the precise moment the
decision to use it is made.
Use for these three reasons only:
• Self Protection and to protect others
• Overcome resistance
• Prevent escape
Tennessee v. Garner ©
Deadly force should not be used to Seize a fleeing
felon suspected of committing a non-violent
crime.
Deadly force should be used only when:
• PO, or someone else, is in danger of threat likely
to cause death or great bodily harm (self
defense or the defense of others)
• Belief that arrest will be defeated by using a gun
or other deadly weapon
• Escape of person to be arrested will endanger
the public
Federal Criminal & Civil Remedies
for Unconstitutional Conduct
• Title 42 USC Section 1982
– Under Color of State Law
Immunity
• Absolute Immunity
– Judges
– Legislators
– Prosecutors
– Statements made within the context of a
judicial hearing
Immunity
• Qualified Immunity
– Violation was not clearly established at time of
the act
– A reasonable public official confronted with
these facts could have believed that his of her
conduct conformed to the relevant standard.
Immunity
• State Tort Immunity
– Willful and Wanton Misconduct
– Conscious Disregard for the Safety of Others
Factors in Determining Reasonableness
in Police Use of Force Cases
• Severity of crime
• Suspect poses an immediate threat
• Resisting arrest or attempting to flee
Mental State for Excessive Use of Force for
Different B of Rs Applications
• Police Officers Use of Force is examined
by the courts using a reasonableness
standard necessitated because this is a
seizure and therefore the 4th Amendment
Controls. “The right of the people to be
secure in their persons … against
unreasonable … seizures, shall not be
violated…”
Mental State for Excessive Use of Force for
Different B of Rs Applications
• Correctional Officers’ Use of Force is
examined by the courts using a willful and
wanton standard necessitated because
excessive force after conviction is
punishment and therefore the 8th
Amendment Controls. “(C)ruel and
unusual punishment (shall not be)
inflicted.”
• Cruel and unusual indicates intentional
behavior.
Police Officer in Liable Under Sec. 1983
• If their comrades commit brutality and they
take no action to stop it.
Liability of Private Individuals
Based on Section 1983
• Act in concert with police.
• Act under State compulsion or with
significant State encouragement
• Perform a public function (private
corporation operating State prison.)
Criminal Responsibility
Title 18 USC 242
• Act under color of law (not just State Law)
• Possessed a willful intent (mental state)
• Violated a constitutional right (that has
been)
• Previously made specific through judicial
decision.
LESS THAN 2% OF CASES ARE PROSECUTED
14th Amendment
• … nor shall any State deprive any person
of life, liberty, or property without due
process of law: nor deny to any person
within its jurisdiction the equal protection
of the laws.
Protection Afforded by the 14th
Amendment
• Substantive Due Process
– Culpable Action DeShaney v. Winnebago
County Department of Social Services = No
constitutional duty of the public official to
protect the public from harm except:
• Discriminatory Denial of Police Protection
– Jeffrey Dahmer
• Duty to Protect Persons in Custody – People are
no longer capable of taking care of themselves
– Kneipp v. City of Philadelphia
Equal Protection of the Law
• Deliberately treating one person differently
from another because;
– A person’s membership in a protected class
– A desire to punish the person for exercising a
constitutional right
– Malicious intent to injure the person out of
spite.
Law Enforcement Professional’s
Constitutional Rights in the Workplace
• 1st Amendment Rights
– Limited rights after Garcetti v. Ceballos
• 4th Amendment Rights
– Limited in employment case
• 5th Amendment Rights
– Garrity