Chapter 7

download report

Transcript Chapter 7

Chapter

7 Policing: Legal Aspects

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Changing Legal Climate

The U.S. Constitution, especially the Bill of Rights, is designed to protect citizens from abuses in police power.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Changing Legal Climate: The Warren Court (1953-1969)

The U.S. Supreme Court in 1960s, under the direction of Chief Justice Earl Warren:

• Accelerated the process of guaranteeing individual rights in the face of criminal prosecution.

• Bound police to strict procedural requirements.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Changing Legal Climate: Post Warren Court

In the decades since the Warren Court, a more conservative Court philosophy:

– “Reversed” some of the Warren-era decisions.

– Created exceptions to some of the rules and restraints.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

TABLE 7 –1

Constitutional Amendments of Special Significance to the American System of Justice

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Individual Rights

• •

Courts provide an arena for dispute resolution between individuals and between citizens and government agencies. Courts also deal with issues involving rights violations, which have become the basis for dismissal of charges, acquittal of defendants, or release of convicted offenders upon appeal.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Due Process Requirements

Most due process requirements relevant to the police involve:

– Evidence and interrogation (

search and seizure

) – Arrest – Interrogation

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Search and Seizure: The Fourth Amendment

• “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.”

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

The Exclusionary Rule

Weeks v. U.S. (1914) established the exclusionary rule.

• Illegally seized evidence cannot be used in a trial.

• This rule acts as a control over police behavior.

• The decision was only binding to federal officers.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Fruits of the Poisonous Tree Doctrine

Silverthorne Lumber Co. v. U.S. (1920)

• Because illegally seized evidence cannot be used in a trial, neither can evidence that derives from an illegal seizure.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Exclusionary Rule Applied to the States

• •

Mapp v Ohio (1961)

– The 14 th Amendment due process applies to local police, not just federal officers

Wolf v. Colorado (1949)

– Officers believed exclusionary did not apply to state and local law enforcement

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Search Incident to Arrest

U.S. v. Rabinowitz (1950)

• The Fourth Amendment protects against unreasonable searches, but it protects people, not places.

• A limited area search following arrest may be acceptable.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Search Incident to Arrest

• •

Chimel v. U.S. (1969)

Clarified the scope of a search incident to an arrest.

– Officers may search: • The arrested person • The area under the arrested person’s “immediate control” • Officers can search for following reasons: – To protect themselves – To prevent destruction of evidence – To keep defendant from escaping

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Fourth Amendment Protects People

• • •

Minnesota v. Olson (1990)

– Overnight guests residing in the home of another

Minnesota v. Carter (1998)

– Expectation of privacy

Georgia v. Randolph (2006)

– One consents but the other refuses

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Good Faith Exception to the Exclusionary Rule

U.S. v. Leon (1984)

• When law enforcement officers have acted in good faith, the evidence they collect should be admissible even if later it is found that the warrant they used was invalid.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Good Faith Exception to the Exclusionary Rule

Illinois v. Rodriguez (1990)

• Good faith can be established if the police

reasonably believe

they are performing their job in accordance with the law.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Good Faith Exception to the Exclusionary Rule

• •

Arizona v. Evans (1995)

The computer errors exception to the exclusionary rule.

• Police officers cannot be held responsible for a clerical error.

• The exclusionary rule was intended to deter police misconduct, not clerical mistakes made by court employees.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Good Faith Exception to the Exclusionary Rule

Herring v. U. S. (2009)

• U. S. Supreme Court reinforced it’s ruling in Evans • When police mistakes are the result of isolated negligence, the exclusionary rule does not apply

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Plain View Doctrine

Harris v. U.S. (1968)

• Objects falling in “plain view” of an officer, who has the right to be in the position to have the view, are subject to seizure and may be introduced as evidence.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Plain View Doctrine

• •

U.S. v. Irizarry (1982) Arizona v. Hicks (1987)

Restricted the plain view doctrine

• Officers cannot move objects to gain a view of evidence otherwise hidden from view. • Officers cannot move or dislodge objects to create “plain view.”

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Plain View Doctrine

Horton v. California (1990)

• The U.S. Supreme Court held that even though inadvertence is a characteristic of most legitimate plain view seizures, it is not a necessary condition.

• It is okay to seize evidence found when such evidence is other than that listed in a search warrant.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Emergency Searches

Brigham City v. Stuart (2006)

• Police officers “may enter a home without a warrant when they have an objectively reasonable basis for believing than an occupant is seriously injured or imminently threatened with such an injury.”

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Emergency Searches of Property

Three threats provide justification for emergency warrantless searches (searching during exigent circumstances).

– Clear dangers to life – Clear dangers of escape – Clear dangers of removal or destruction of evidence

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Emergency Searches

Warden v. Hayden (1967)

• “4th Amendment does not require police to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Emergency Searches

Maryland v. Buie (1990)

Police can search locations in a house where a potentially dangerous person could hide while an arrest warrant is being served.

• Primarily meant to protect officers from danger.

• Can apply when officers lack a warrant, probable cause, or even reasonable suspicion.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Emergency Searches

Hudson v. Michigan (2006)

– Evidence was still admitted at trial even though police did not follow knock-and announce rule – Interests violated by not announcing have nothing to do with the seizure of evidence

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Anticipatory Warrants

U.S. v. Grubbs (2006)

• The Court upheld the constitutionality of anticipatory warrants—search warrants issued on the basis of probable cause to believe that evidence of a crime, while not currently at the place described, will likely be there when the warrant is executed.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

“Free-to-Leave” Test

U.S. v. Mendenhall (1980)

U.S. Supreme Court said:

• “A person has been ‘seized’ within the meaning of the Fourth Amendment only if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

“Free-to-Leave” Test

Yarborough v. Alvarado (2004)

– Whether a person is actually free to leave can only be determined by examining the

totality of the circumstances

surrounding the interrogation.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Felony Arrest

Payton v. New York (1980)

– Unless granted consent or an emergency, an arrest warrant is necessary if entering a suspect’s home – Reiterated in Kirk v. Louisiana (2002)

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Searches Incident to Arrest

U. S. v. Robinson (1973)

– Conduct a search without a warrant for purposes of personal protection – Evidence found in the search may be used in court Reinforced the ruling in Terry v. Ohio (1968)

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

The “Terry” Stop

• • •

Terry v. Ohio (1968) Reasonable suspicion is needed to “stop and frisk.” The facts must lead officers to suspect that crimes may be occurring, and that suspects may be armed.

Justification:

– “We cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.”

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Reasonable Suspicion Versus Probable Cause

Reasonable suspicion is a general and reasonable belief that a crime is in progress or has occurred whereas probable cause is a reasonable belief that a particular

person has committed a specific

crime.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Reasonable Suspicion Stops

• • •

U.S. v. Sokolow (1989)

Stops must be evaluated based on a “totality of circumstances” U.S. v. Arvizu (2002)

“Officers are allowed to draw on their own experiences and specialized training Minnesota v. Dickerson (1993)

Brown v. Texas (1979)

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Reasonable Suspicion Searches

• •

Hiibel v. Sixth Judicial District Court of Nevada

(2004)

• The court upheld Nevada’s “stop and identify” law that requires a person to identify himself to police if they encounter him under circumstances that reasonably indicated that he “has committed, is committing, or is about to commit a crime.”

Smith v. Ohio (1990)

• An individual has the right to protect his belongings from unwarranted police inspection.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Emergency Searches of Persons

• • •

Emergency searches of persons falls under the exigent circumstances exception to the warrant requirement of the Fourth Amendment.

Arkansas v. Sanders (1979) U. S. v. Borchardt (1987)

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Vehicle Searches

• •

Carroll v. U. S. (1925)

– Warrantless search is valid if based on reasonable belief that contraband is present

Preston v. U. S. (1964)

– Defined the limitations of warrantless vehicle searches

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Vehicle Searches

Arizona v. Gant (2009)

– Vehicle searches “incident to a recent occupant’s arrest” cannot be authorized without a warrant if there is “no possibility the arrestee could gain access to the vehicle at the time of the search”

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Vehicle Searches

Maryland v. Wilson (1997)

– Passengers ordered out of vehicle for officer safety and are subject to police control • •

People v. Brendlin (2007)

– Officers will exercise “unquestioned police command” over passengers for the duration of the stop

Illinois v. Caballes (2005)

• The use of a drug-sniffing dog may not even be classified as a “search”

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Roadblocks and Checkpoints

Indianapolis v. Edmond (2000)

– The Fourth Amendment prohibits even a brief seizure of a motorist under a program whose primary purpose is ultimately indistinguishable from the general interests in crime control.

– Checks for drivers’ licenses and registrations are okay because they do not intend to “detect evidence of ordinary criminal wrongdoing”.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Roadblocks and Checkpoints

Illinois v. Lidster (2004)

– Information-seeking highway roadblocks are permissible. – “The law ordinarily permits police to seek the public’s voluntary cooperation in a criminal Investigation.”

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Watercraft and Motor Homes

• • •

U. S. v. Villamonte-Marquez (1983) California v. Carney (1985) U. S. v. Hill (1988)

– The warrantless searching of automobiles extends to include some watercraft, houseboats, and motor homes.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Suspicionless Searches

• • • •

Suspicionless searches may be necessary in order to ensure public safety.

Such searches must be based on compelling interests.

National Treasury Employees Union v. Von Raab (1989)

Mandatory drug testing for workers

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Suspicionless Border Searches

• •

Suspicionless searches of vehicles at our nation’s borders are permitted, even when searches are extensive. U.S. v. Flores-Montano (2004)

– “The Government’s authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle’s fuel tank.”

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

High-Technology Searches

• •

Investigating crime is making greater use of high-technology devises and practices, such as thermal imaging devises. If the government searches a home using a device that is not something used by the general public, and that shows something that wouldn’t be learned without entering the house, then a warrant is required.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Intelligence Function

Police gather information through many sources, including:

– Informants – Interrogation

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

• •

Two-Pronged Test for the Use of Informants In the case of informants, a two pronged test usually satisfies the probable cause requirement per Aguilar v. Texas (1964).

#1: The source of the informant’s information is made clear.

# 2: The police officer has a reasonable belief that the informant is reliable.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Anonymous Informants

• •

Illinois v. Gates (1983)

The Court adopted a totality-of- circumstances approach for assessing informant information

Alabama v. White (1990)

Without other information, anonymous tips may be used if they accurately predict future behavior

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Police Interrogation

• •

An interrogation refers to the information-gathering activity of police officers that involves the direct questioning of suspects.

During an interrogation, there must be no:

– Physical abuse – Inherent coercion – Psychological manipulation

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

The Right to a Lawyer at Interrogation

Escobedo v. Illinois (1964)

• A defendant is entitled to counsel at police interrogations, and counsel should be provided when the defendant so requests.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

The Right to a Lawyer at Interrogation

Miranda v. Arizona (1966)

• “ The entire aura and atmosphere of police interrogation, without notification of rights and an offer of assistance of counsel, tends to subjugate the individual to the will of his examiner.” • Prior to custodial interrogation, a person must be informed of his or her rights

(Miranda triggers).

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

The Right to a Lawyer at Interrogation

Montejo v. Louisiana (2009)

• Overruled Michigan v. Jackson • Although an attorney had been appointed, the defendant had never actually invoked his right to counsel

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Waiver of Miranda Rights

A waiver of Miranda rights can be done if such a waiver is voluntary, knowing, and intelligent.

Silence is not a waiver.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Inevitable Discovery Exception to

Miranda

Nix v. Williams (1984)

• Evidence, even if it was otherwise gathered inappropriately, can be used in a court of law if it would have invariably turned up in the normal course of events.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Public Safety Exception to

Miranda

New York v. Quarles (1984)

• Considerations of public safety were overriding and negated the need for rights advisement prior to limited questioning that focused on the need to prevent further harm.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Nontestimonial Evidence

Nontestimonial evidence generally refers to physical evidence, including very personal items that may be within or part of a person’s body, such as:

– Ingested drugs – DNA – Foreign objects – Blood – Medical implants

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Nontestimonial Evidence

Concerns over non-testimonial evidence involve:

– Right to privacy issues – Body cavity searches – Electronic eavesdropping – Electronic evidence

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Right to Privacy

Schmerber v. California (1966)

– Warrants must be obtained for bodily intrusions unless fast action is necessary to prevent the destruction of evidence by natural physiological processes.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Body-Cavity Searches

• • Strip searches of convicts in prison, including the search of body cavities, have generally been held to be permissible.

U.S. v. Montoya de Hernandez

(1985)

– The Court upheld a four-day customs detention of a body packer (until nature took its course and evidence was passed from her body).

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Electronic Eavesdropping

Katz v. U.S. (1967)

A warrant is required to unveil what a person makes an effort to keep private, even in a public place.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 permits officers to listen to electronic communications when certain conditions are met

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Minimization Requirement

U.S. v. Scott (1978)

Officers must make every reasonable effort to monitor only those conversations that are specifically related to the criminal activity under investigation.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

The Electronic Communications Privacy Act (ECPA) of 1986

The ECPA held that officers must obtain wiretap-type court orders to eavesdrop on ongoing

communications.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

The Telecommunications Act of 1996

Made it a federal offense to knowingly use interstate or international telecommunications device to:

“create, solicit, or initiate the transmission of any comments, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten or harass another person.”

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

The USA PATRIOT Act of 2001

The USA PATRIOT Act of 2001 made it easier for police investigators to intercept many forms of electronic communication. The Act:

– allows for roving, multi-point wiretaps – broadened “sneak and peek” searches – updated the pen/trap statue – eliminated wiretap orders except for cases of real-time telephone conversations – updated and expanded the types of records that law enforcement can obtain with a subpoena

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

PATRIOT II

The 2006 USA PATRIOT Act reauthorization (PATRIOT II):

– made permanent 14 of the original provisions and extended others – addressed concerns of civil libertarians – provided more protections for mass transportation systems and seaports – closed loopholes in laws preventing terrorist financing – included the Combat Methamphetamine Act (CMA)

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Gathereing Electronic Evidence

Electronic evidence is of special concern because it:

– is latent – can transcend national and state borders quickly and easily – is fragile and can easily be altered, damaged, compromised, or destroyed by improper handling or improper examination – may be time sensitive

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]

Warrantless Searches of Electronic Evidence

• •

U.S. v. Carey (1999) —A federal appellate court held that the consent a defendant had given to police for his apartment to be searched did not extend to the search of his computer once it was taken to police station.

U.S. v. Turner held that the warrantless search of a personal computer while in the defendant’s apartment exceeded the scope of his consent.

Criminal Justice Today: An Introductory Test to the 21st Century

Frank Schamalleger Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.

publishing as Pearson [imprint]