Chapter 7 Police and the Constitution

Chapter 7: Police and the Constitution: The Rules of Law Enforcement Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 1 Icebreaker: Interview 1. The class will be broken up into pairs of students. 2. Each pair of students will interview one another to answer the following question: − Should the police be able to lie to you during interrogations? Why or why not? 3. Then each pair will report out their answers to the class. 4. Have any of the other student’s responses swayed your answer? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 2 Chapter Objectives 7.1 Outline the four major sources that may provide probable cause. 7.2 Explain the exclusionary rule and the exceptions to it. 7.3 List the four categories of items that can be seized by use of a search warrant. 7.4 Explain when searches can be made without a warrant. 7.5 Describe the plain view doctrine and indicate one of its limitations. 7.6 Distinguish between a stop and a frisk and indicate the importance of the case Terry v. Ohio. 7.7 List the four elements that must be present for an arrest to take place. 7.8 Explain why the U.S. Supreme Court established the Miranda warning. 7.9 Indicate situations in which a Miranda warning is unnecessary. 7.10 List the three basic types of police identification. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 3 What is the Fourth Amendment ?? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 4 The Fourth Amendment (1 of 3) 1.Prohibition against unreasonable searches and seizures 2.The requirement of probable cause to issue a warrant • When dealing with Search and Seizure … Sources of probable cause: − Personal observation − Information − Evidence − Association Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 5 The Fourth Amendment (2 of 3) • The probable cause framework: − Allows police officers to do their job effectively − Although it limits the situations in which police officers can make arrests, it gives them freedom to act within the framework − 2003: Supreme Court decision involving probable cause − In County of Riverside v. Michigan (1991), the Supreme Court imposed a 48hour limitation Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 6 The Fourth Amendment (3 of 3) • The exclusionary rule − Prohibits the use of illegally obtained evidence in court • The fruit of the poisoned tree − Evidence obtained through illegally obtained evidence is also inadmissible • Exceptions to the exclusionary rule − “Inevitable discovery” − “Good faith” Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 7 Knowledge Check 1 What provisions of the Fourth Amendment do you find difficult to understand?  Exclusionary Rule  Fruit of the Poisoned Tree  Good Faith Exception  Inevitable Discovery Exception Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 8 Knowledge Check 1: Answer (1 of 2) What provisions of the Fourth Amendment do you find difficult to understand? • Exclusionary Rule Any evidence that is obtained in violation of the accused’s rights, as well as any evidence derived from illegally obtained evidence, will not be admissible in criminal court. • Fruit of the Poisoned Tree Evidence that is acquired through the use of illegally obtained evidence and is therefore inadmissible in court Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 9 Knowledge Check 1 : Answer (2 of 2) What provisions of the Fourth Amendment do you find difficult to understand? • Good Faith Exception The legal principle that evidence obtained with the use of a technically invalid search warrant is admissible during trial if the police acted in good faith • Inevitable Discovery Exception The legal principle that illegally obtained evidence can be admissible in court if police using lawful means would inevitably have discovered it Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 10 You Be the Judge • Suppose that this gun, used by a defendant to murder a victim, was found as the result of an improper police search. Why might the exclusionary rule keep evidence of the gun’s existence out of court? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 11 Lawful Searches and Seizures (1 of 6) • The police must develop probable cause and secure a search warrant prior to any intrusion into a residence in order to search for evidence. • Seizure by use of a search warrant − Items resulting from the crime − Items that are inherently illegal for anyone to possess (with exceptions) − Items that can be called “evidence” of the crime − Items used in committing the crime Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 12 Lawful Searches and Seizures (2 of 6) • Privacy − Reasonable expectation of privacy as established in Katz v. United States (1967) − Two-pronged test  Individual must prove he or she expected privacy  Society must recognize expectation as reasonable • United States v. Jones (2012) − Important roles that time and technology play in privacy Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 13 Lawful Searches and Seizures (3 of 6) • Search and seizure warrants − Court order that authorizes police to search a certain area − Must provide probable cause − Must show specific information on the premises to be searched, suspects to be found, and illegal activities taking place at the premises − Must show items to be seized − Issued by a judge Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 14 Lawful Searches and Seizures (4 of 6) • Searches and seizures without a warrant − Search incident to arrest  United States v. Robinson (1973)  The need for a police officer to find and confiscate any weapons a suspect may be carrying The need to protect any evidence on the subject’s person from being destroyed Chimel v. California (1969) Search area within suspect’s “immediate control” Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 15 Lawful Searches and Seizures (5 of 6) • Searches with consent − Factors considered for a valid search include:  The age, intelligence, and physical condition of the consenting subject  Any coercive behavior by the police, such as the language used to request consent  The length of the questioning and its location Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 16 Lawful Searches and Seizures (6 of 6) • Searches of automobiles − Arizona v. Gant (2009)  Person being arrested is close enough to the car to grab or destroy evidence or a weapon inside the car  The arresting officer reasonably believes that the car contains evidence pertinent to the same crime for which the arrest took place − Non-arrest situations  Probable cause, consent of driver, and “protective searches” Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 17 Knowledge Check 2 Can you explain the procedures for obtaining a search warrant? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 18 Discussion Activity 1: Traffic Stop–Door Dash • It’s 10:00 p.m. and an officer sees a driver sitting in a parked car on a residential street. The car does not have any license plates. The officer contacts the driver by approaching and opening the passenger side door, leaning in and asking for his license and registration. While leaning in, the officer observes a partially concealed gun. The officer arrests the driver for the weapon violation. • Is the arrest and seizure of the gun as evidence valid? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 19 Discussion Activity 1: Traffic Stop–Door Dash Debrief • Answer: No • During a traffic stop, a driver still retains important privacy interests in the interior of his/her vehicle • While officers have authority to order drivers and passengers out of a vehicle, the seemingly modest and unintrusive act of opening a driver-side or passenger door and leaning into the vehicle, without particularized justification, can still be an unlawful search under the Fourth Amendment, rendering any criminal evidence seized inadmissible at trial. [United States v. Ngumezi, 980 F.3d 1285 (9th Cir. 2020)] Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 20 When Searches Can Be Made without a Warrant (1 of 3) In many instances, it would be impractical for police officers to leave a crime scene, go to a judge, and obtain a search warrant before conducting a search. Therefore, under the following circumstances, a search warrant is not required. • Incident to Lawful Arrest: Police officers may search the area within the immediate control of a person after they have arrested him or her. • Automobile Exception: If police officers have probable cause to believe that an automobile contains evidence of a crime, they may, in most instances, search the vehicle without a warrant. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 21 When Searches Can Be Made without a Warrant (2 of 3) • Consent: Police officers may search a person without a warrant if that per­son voluntarily agrees to be searched and has the legal authority to authorize the search. • Plain View: If police officers are legally engaged in police work and happen to see evidence of a crime in "plain view," they may seize it without a warrant. • Stop and Frisk: Police officers may frisk, or "pat down," a person if they suspect that the person may be involved in criminal activity or pose a danger to those in the immediate area. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 22 When Searches Can Be Made without a Warrant (3 of 3) • Hot Pursuit: If police officers are in "hot pursuit," or chasing a person, they have probable cause to believe committed a crime, and that person enters a building, they may search the building without a warrant. • Abandoned Property: Any property, such as a hotel room that has been vacated or contra­band that has been discarded, may be searched and seized by police officers without a warrant. • Border Searches: Law enforcement officers on border patrol do not need a warrant to search vehicles crossing the border. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 23 Arrests without a Warrant • Plain view doctrine − Coolidge v. New Hampshire (1971)  The item is positioned within the officer’s view.  The officer is legally in a position to notice the item.  The discovery of the item is inadvertent.  The officer immediately recognizes the illegal nature of the item. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 24 Technology (1 of 2) • Electronic surveillance − Law enforcement officers can use electronic surveillance if it:  Details with “particularity” the conversations that are to be overheard  Names the suspects and the places to be surveilled  Shows probable cause that a crime has or will be committed Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 25 Technology (2 of 2) • Cell phones and the Fourth Amendment − Courts must decide if warrant is needed to track a suspect using cell phone records. − In 2014, the U.S. Supreme Court unanimously ruled that officers need a warrant to search the contents of a cell phone belonging to suspects they have just arrested. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 26 What Are Your Thoughts? Activity 1 • Should law enforcement be able to use police helicopters such as the one shown here to determine whether people are carrying out illegal behavior in their fenced-in backyards? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 27 Stops and Frisks (1 of 3) • Terry v. Ohio (1968) − Established definition of “reasonable” suspicion in stop-and-frisk situations − “Totality of circumstances” test: An officer must have “specific and articulable facts” to make a stop. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 28 Stops and Frisks (2 of 3) • Stop − Takes place when an officer has reasonable suspicion that criminal activity has taken place or is about to take place − Investigatory stop • Frisk − A protective measure − Justified when the officer thinks the safety of police officers or other citizens might be endangered Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 29 Stops and Frisks (3 of 3) • Race and reasonable suspicion − Racial profiling  Remedies of racial profiling include: A civil lawsuit against the law enforcement agency Law enforcement policies to stop the practice − Immigration law and profiling  S.B. 1070 Arizona law requiring law enforcement officers to “when practical” check the immigration status of anyone they suspect be illegally in the Larry K. to Gaines and Roger LeRoy Miller, Criminal Justicecountry in Action, 11 Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or th duplicated, or posted to a publicly accessible website, in whole or in part. 30 Knowledge Check 3 • What is the main purpose behind a frisk? • When are police justified in frisking someone? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 31 Arrests (1 of 4) • Elements of an arrest − Intent to arrest − Authority to arrest − Seizure or detention − Understanding of the person that he/she has been arrested Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 32 Arrests (2 of 4) Mastering Concepts: The Difference between a Stop and an Arrest • Both stops and arrests are considered seizures because both police actions restrict an individual’s freedom to “walk away.” Both must be “reasonable.” • Stop: Police can interrogate limited search of outer clothing. • Arrest: Suspect comes under police control protected by the U.S Constitution. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 33 Arrests (3 of 4) STOP ARREST Justification Reasonable suspicion Probable cause Warrant None Intent of Officer To investigate suspicious activity Search May frisk, or “pat down” for weapons Outer clothing only Required in some, but not all, situations To make a formal charge against the suspect May conduct a full search for weapons or evidence Area within the suspect’s immediate control or “reach” Scope of Search Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 34 Arrests (4 of 4) • Arrests with a warrant − Probable cause − Knock and announce − Exigent circumstances • Arrest without a warrant − Offense is committed in the presence of the officer. − Officer has probable cause to believe a suspect has committed a crime. − Time lost obtaining a warrant would allow the suspect to escape/destroy evidence; officer has probable cause to make an arrest. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 35 Discussion Activity 2: Traffic Stop–Through The Looking Glass • It’s 10:00 p.m. and an officer sees a driver sitting in a parked car on a residential street. The car does not have any license plates. The officer contacts the driver by approaching the passenger side door, shining his flashlight inside the window, and asking for his license and registration. While looking in, the officer observes a partially concealed gun. The officer arrests the driver for the weapon violation. • Is the arrest and seizure of the gun as evidence valid? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 36 Discussion Activity 2: Traffic Stop–Through The Looking Glass Debrief • Answer: Yes • Shining a light into a vehicle from outside of it is not considered a search per Texas v. Brown, 460 U.S. 730 (1983) (shining flashlights into car’s interior) Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 37 WHAT AMENDMENT? guarantees protection against self-incrimination. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 38 Miranda Warnings • Fifth Amendment guarantees protection against self-incrimination. − Inherent coercion − Applies when suspect is in custody  Custodial interrogation Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 39 Knowledge Check 4 • Why must an officer “Mirandize” a suspect before asking them any questions, even if the officer never formally places the suspect under arrest? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 40 • Miranda is not required: Miranda − When police do not ask suspect questions that are testimonial in nature − When the police have not focused on a suspect and are questioning witnesses at the scene − When a person volunteers information before being asked − When the suspect has given a private statement to a friend or other acquaintance − During a stop and frisk, when no arrest has been made − During a traffic stop Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 41 Identification Process • Essential procedures − Show-ups − Photo arrays − Lineups • No Sixth Amendment right to counsel at show-ups and arrays • Nontestimonial evidence in booking process Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 42 What Are Your Thoughts? Activity 2 • Many police departments now use “double blind” photo arrays and lineups, in which the officer administering the procedure does not know who the actual suspect is. How might this strategy reduce the chances of eyewitness misidentification of a suspect? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 43 Discussion Activity 3 State Department of Motor Vehicle records are a primary source of photos for facial recognition technology searches. Does someone who has their photo taken for a driver’s license have a reasonable expectation of privacy that the photo will not be used for law enforcement surveillance purposes? Why or why not? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 44 Self-Assessment • Do you understand the importance of the Exclusionary Rule and the consequences of illegally obtaining evidence? • Can you explain what a search warrant is and what a person needs a search warrant for? • Can you list the rights guaranteed under the Fifth Amendment? Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 45 Summary (1 of 2) Now that the lesson has ended, you should have learned how to: • Outline the four major sources that may provide probable cause. • Explain the exclusionary rule and the exceptions to it. • List the four categories of items that can be seized by use of a search warrant. • Explain when searches can be made without a warrant. • Describe the plain view doctrine and indicate one of its limitations. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 46 Summary (2 of 2) Now that the lesson has ended, you should have learned how to: • Distinguish between a stop and a frisk and indicate the importance of the case Terry v. Ohio. • List the four elements that must be present for an arrest to take place. • Explain why the U.S. Supreme Court established the Miranda warning. • Indicate situations in which a Miranda warning is unnecessary. • List the three basic types of police identification. Larry K. Gaines and Roger LeRoy Miller, Criminal Justice in Action, 11th Edition. © 2022 Cengage. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part. 47