Police and the Law

Legal Limitations - Due Process

  • Obstacle court

  • Warner Court

  • Fourth Amendment - Search and Seizure

    • Police based

Triggers of arrest:

  1. you get arrested

  2. Questions turn inquisitory

The Warren Court

US Supreme Court - 1960s

  • Chief Justice Earl Warren

    • Conservative politician, but is a progressive justice

  • Accelerated the process of guaranteeing individual rights

    • You had right, but you did not have access to that right

  • Strict procedural requirements for police

  • Shifts the court system to a due process model

After the Warren court (1953 - 1969) SCOTUS became more conservative (Burger Court)

  • Recognized the need to ensure public safety

  • Exceptions made → emergency questioning especially in recent years

4th Amendment

One sentence

Two Components:

  1. unreasonable search and seizure

  2. No warrants will be issues unless there is probable cause, and it must describe the place, persons/things seized

What is a reasonable/unreasonable search/seizure?

Search and Seizure

4th Amendment to the constitution protects us from “unreasonable search and seizure”

  • All three words are essential (although “and” is kind of important)

  • Where should you expect privacy (Olson and Carter)? What is unreasonable? What is Search? What is seizure? Do the two work in conjunction?

  • Olsen:

    • Olsen is suspected of a robbery. Police think that he is staying in a farmhouse back from the road. Police do not have probable cause, so they call the house. Women living there pick up the phone, and the police can hear a mans voice in the background. After hearing the voice, they search the house without a warrant. Olsen then filed a case against them due to a warrantless search.

    • Should Olsen expect privacy in a place he is not living long term?

    • Court rules with Olsen. He has an expectation of privacy because he was staying there overnight

  • Carter:

    • Carter and his friends are hanging out in a first floor apartment in front of a big window. In front of them on a table is a bunch of white substances that they are bagging. A police is parked OutFront and is parked legally. Police looks into the window and thinks that it drugs being prepared to sell. The officer goes in to arrest them. Carter than appeals

    • Does carter have an expectation of privacy?

    • Court says Carter does not have an expectation of privacy since he is not spending the night (he is just visiting), and he was doing it Infront of a massive window.

  • Search: An action by LE that intrudes on people’s reasonable expectation of privacy

    • Define reasonable expectation of privacy

  • Plainview doctrine

    • Plain View: Evidence visible to the police may be seized without a warrant as long as the police have a legal right to be in the viewing area and cause to believe the evidence is somehow associated with criminal activity (primarily from Harris Ruling)

    • Harris v United States (1968) - Harris car was impounded. The window was rolled down, and since it was going to rain, the police opened the door to roll the window up. The police saw while the door was open, that the car was registered to another name, and learned that the car was stolen. Court says that the registration WAS in plain view!

      • You cannot manipulate objects, moving a backpack to see what is inside.

    • Exigent Circumstances - Emergency, Chasing after a bank robber into an apartment, no need for a warrant

Other Essential Aspects

Seizure:

  • Of people and Things

    • Remember Tennessee v Garner

    • Arrest v Stop/Detained

  • When you are free to go…if you are not sure… then ask!

    • Free to leave test

  • If you voluntarily stop to interact you are not seized (but you could be)

  • If you are stopped and detained, you might or might not be seized

    • Detained does not equal arrest

Stop:

  • A brief interference with your freedom of movement

    • Brief is key

Property an also be seized, but it doesn’t have rights… an issue with civil forfeiture to be discussed later

Reasonable Suspicion:

  • The ability to describe why you feel a certain way… what led you to believe

  • More than a hunch, not quite physical evidence of PC

  • Articulable facts that lead to your conclusion (in the context of observable facts)

Use of Force and the 4th Amendment

Excessive force is also a part of the 4th amendment

  • Not cruel and unusual (8th) because under the 8th you are being punished by the state

  • Excessive force relates (based on interpretation) to unreasonable search and seizure

  • Tennessee v Garner (1985): Police cannot use deadly force in apprehending fleeing felons unless “It is necessary to prevent the escape, and the officer has PC to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others”

Arrest

Significant deprivation of Liberty

  • You definitely are not free to pass GO and collect your $200

  • Require a significant justification:

    • Arrest warrant with good PC (the basis of the warrant)

    • Or just have good PC to support someone committed a crime or is committing a crime

Probable Cause

  • Reasonable grounds; a set of facts that would induce a reasonable person to believe that a crime was committed, that something happened

Warrant and the PC

4th Amendment

  • “No warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized”   

    • A lot in there… left to interpretation

  • We know what PC is… set of facts… to be supported by oath or affirmation

    • An affidavit: A written statement affirming the PC… kind of like an application for a warrant

    • The affidavit would include things to be searched for with location or people to be seized

Warrantless Searches

  1. Special needs beyond normal purposes of LE

    1. Points of entry (airports - TSA), sobriety checkpoints, prevent hijacks, generally where the general public might be in danger and thus individual rights can temporarily be infringed (not a blanket traffic stop - still need PC)

    2. The greater good/National security

    3. everything within 100 miles of a national border, ICE and immigration enforcement have more “wiggle room” to enforce the law. They have the enforcement to conduct immigration checkpoints. The Majority of our cities (2/3 of the population) live within this 100 miles. They can have immigration checkpoints within these 100 miles based only on reasonable suspicion on an immigration violation (Low bar)

  2. Stop and Frisk

    1. Terry v Ohio (1965): Upheld stop and frisk with no warrant as long as the officer has good reasons (PC) to conclude suspect poses a threat to the public if:

      1. officer observes unusual conduct

      2. officer reasonably conclude that something is up

      3. criminal activity might be happening

      4. the person may be armed or dangerous

      5. Within the course of investigating behavior

      6. Police officer identifies himself and asks questions

      7. The suspect evades questions

      8. The officer is then entitled for the protected of himself and others to conduct a carefully limited search of the outer clothing

    2. NYPD Stop and Frisk. Targeting black men as being seen as “criminal”. reduce a community’s trust in the police. Ruled as illegal.

Searches Incident to a Lawful Arrest

A search, without a warrant, can occur during a lawful arrest for any crime

  • Chimel v California (1969): Warrantless searches are lawful in conjunction with a lawful arrest only in the direct vicinity of the suspect

    • search the area close to the suspect, the same room

    • A search of the home for safety is not in the direct vicinity… without a search warrant

    • Officers could make protective sweep in recently visited rooms of the suspect, but cannot search

    • Similar to vehicles… search w/o warrant must be in area within reach of driver

Exigent Circumstances

An Urgent Situation where stopping for a warrant might risk person getting away or emergency circumstances requite it

  • A warrant is not needed to provide emergency aid to someone being assaulted… once inside plain view doctrine applies

Judges typically side with the officers and their description of exigent circumstances

  • urgency of action is key though

  • Would evidence be destroyed… would the person flee?

Automobile Searches

Cars are different than houses

  • Because they can drive away

As long as justification is present… warrantless searches might be approved (Carrol v United States, 1925)

And officers have more power during stops… like ordering passenger out w/o suspicion

They are also more accessible to LE

Can officers use traffic citations as a pretext to searching your car?

  • Court says yes

Key Questions

  • Pretextual stops - does the stop for a vehicle code issue cover for an unrelated criminal activity investigation?

  • When can officers make a stop?

    • Can occur when an officer observes a traffic violation, defective equipment, or reasonable suspicion of involvement in a crime (driver or passenger)

  • How extensively can the search be?

    • Stop doesn’t provide justification for the search

      • But it does provide the avenue to build the justification

    • Reasonable suspicion of a crime for a search

      • Does the traffic stop serve as pre-text for search

    • Plainview (Harris) and impound lots/inventories

Search by Consent

Allows officers to search without a warrant

  • You have provided the consent

U.S. v. Drayton (2002): officers do not have to inform people of their
right to say no

Voluntary consent is key: no coercion

And do the people have the right to give consent (Illinois v.
Rodriguez, 1990)

  • example of good faith we will discuss later

What about two people in a dwelling: Georgia v. Randolph

  • And to police know that

Miranda Warning

  1. You have the right to remain silent

  2. Anything you say can and will be used against you in a court of law

  3. You have the right to talk to a lawyer and have him present with you while you are being questioned

  4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish

  5. You can decide at any time to exercise these rights and not answer any questions or make any statements

Miranda Rules

Miranda v Arizona (1966)

  • Prior to Miranda, officers didn’t have to inform people of their rights

  • Might seem small but pretty big deal

  • The dual principles/Triggers of Custody and Interrogation

    • When you are not free to leave

    • And when questioning turns adversarial

Foundational Issue:

  • Since when have we had the 6th amendment right to counsel?

    • 1963 and Gideon v Wainwright

      • Guaranteed access to counsel when accused of a crime

    • 1964 and Escobedo v Illinois

      • Guaranteed right and access to counsel when questioned

There are public safety exceptions to Miranda

The Exclusionary Rule

When Evidence is gained Illegally (w/o warrant, w/o PC, w/o exigent circumstances) it cannot be used

  • It is excluded

Weeks v United States (1914):

  • Established the exclusionary rule at the federal level

Fruit of the Poisonous Tree Doctrine

  • Legal principle that excludes from trial any evidence later developed as a result of illegal search and seizure

The Exclusionary Rule at the State Level

Mapp v Ohio (1961):

  • Made the exclusionary rule applicable to criminal prosecutions at the state level

  • This started the Warren court on a course that would guarantee recognition of individual rights

    • Including with regards to various levels of LE as well

Exceptions to the Exclusionary Rule

SCOTUS after Warren swung back towards crime control

  • Away from individual rights

Good Faith Exception is clearest example

  • Also … practice too

United States v Leon (1984)

  • Suspect’s house search with warrant based on tip… large amount of drugs found… arrested and convicted… appellate court says evidence used is suppressed due to lack of PC for original warrant

    • SCOTUS said evidence from mistakenly issued warrant is admissible

  • Officers were acting in an honest belief that they were doing the right thing

Other Exceptions

Inevitable Discovery Rule

  • Evidence gained illegally (w/o warrant) can be admissible if it can be argued that it would have been inevitably found anyway

  • Nix v Williams (1984)

Missing or bad Info on a warrant

  • Massachusetts v Sheppard (1984)

  • Maryland v Garrison (1987)