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Chapter 8
Police and the Rule of Law
Identification of Criminal Behavior
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
Unreasonableness
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
Process of Obtaining a Search Warrant
A warrant is requested from the court
An affidavit of support is submitted
Application specifies place to be searched and items to be seized
Search Warrants, Hearsay and Informants
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
Stop and Frisk or Threshold Inquiries
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
Warrantless Searches: Incident to Lawful Arrest
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
An Arrest is Generally Lawful if...
The officer observes the crime
The officer has probable cause to believe a crime was committed
and that the suspect committed it
Two General Rules for Conducting a Lawful
Search Incident to Arrest
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
Warrantless Searches of Automobile
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
Roadblock Searches
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
Pretext Stops
. . . 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.
Consent Searches
Consent must be given:
Voluntarily
Intelligently
Florida v. Bostick: “The Bus Sweep”
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
Searches by sight and feel
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.
Electronic Surveillance
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.
What is an Arrest?
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
Miranda v. Arizona (1966)
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
When Illegally Gained Statements and
Evidence Can Be Used
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 (cont.)
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.
Narrowing the Scope of Miranda
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.
Pretrial Identification Process
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
The Exclusionary Rule
Weeks v. United States
Wolf v. Colorado
Established the exclusionary rule for the federal court
Warned states that the exclusionary rule may apply to them
Mapp v. Ohio
Exclusionary rule applies to state court actions
Criticisms of 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
New Cases Weaken the Exclusionary Rule
Illinois v. Gates - anonymous letter establishes probable cause for
search warrant
United States v. Leon - good faith exception based on magistrateissued 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
Suggested Approaches to Dealing With Violations of 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