Chapter 8 Flashcards
Purpose of Bill of Rights
- The Bill of Rights was enacted largely to protect all citizens from excessive governmental power.
- The Bill of Rights serves as an important means of “balancing the scales”: Controlling the police and others so that they conduct themselves in a manner suited to a democratic society.
Role of Criminal justice professionals
- Criminal justice professionals must conform their behavior to the rule of law.
- Since the law is dynamic, that is, constantly changing, therefore, criminal justice practitioners must stay abreast of such changes and have formal mechanisms for imparting these legal changes to their employees.
The Fourth Amendment
“The right of the people to be secure in their persons, 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.”
Protection against unreasonable search and seizures.
To limit overzealous behavior of police.
Neutral magistrate issues warrants.
Warrant, arrest: A document issued by a judge directing police to immediately arrest a person accused of a crime.
Warrant, search: A document issued by a judge, based on probable cause, directing police to immediately search a person, premises, an automobile, or a building for the purpose of finding illegal contraband felt to be located therein and as stated in the warrant.
Probable Cause
Standard for legal arrest, search, and seizure.
A reasonable basis to believe that a crime has been, or is about to be, committed by a particular person. The officer must be able to articulate his reasons for believing a crime has been or is about to be committed with specificity and particularity.
What kind of information is needed:
Name
Address
Description of activities deemed to be criminal
Times, places, and locations of alleged criminal activities
Who saw or reported the activities – name, address, details
Specific items being searched for and locations of specific items
The Exclusionary Rule
Exclusion of evidence obtained in violation of the Fourth Amendment.
The rule (see Mapp v. Ohio, 1961) providing that evidence obtained improperly cannot be used against the accused at trial.
Arrestswith andwithout a Warrant
To obtain an arrest warrant, the officer or a citizen swears in an affidavit: That he or she possesses certain knowledge that a particular person has committed an offense.
The affidavit is presented to a judge, and if the judge finds that probable cause exists, he or she will issue the arrest warrant.
Affidavit: Any written document in which the signer swears under oath that the statements in the document are true.
Patrol officers rarely perform an arrest with warrant. Patrol officers, unlike detectives, rarely have the time or opportunity to perform an arrest with a warrant in hand because the suspect is generally trying to escape, dispose of evidence, and so on. They must develop the probable cause in real time, in front of them, suspect runs away, they see a suspect selling drugs, they see reckless or impaired driving, they see a car go through a red light, etc.
Exceptions to search and seizure warrants
Exceptions to knock-and-announce: if knocking and announcing would be likely to endanger the officers or lead to the destruction of evidence.
Exception to Search Warrant: An instance where quick, emergency action is required to save lives, protect against serious property damage, or prevent suspect escape or evidence destruction, in which officers can enter a structure without a search warrant.
The U.S. Supreme Court has held that police may not make “a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest” except where there are exigent circumstances.
Exigent circumstances/hot pursuit exception – destruction of evidence or in hot pursuit (officer has probable cause and immediate action is required to save a life, prevent serious damage to property, prevent escape of the suspect).
Other Exceptions:
Plain view doctrine: Police do not have to have a warrant to search for items that are seen in plain view: If police are lawfully on the premises and the plain-view discovery is inadvertent, then they may seize the contraband.
Search of person and immediate area incident to an arrest: Searches incident to a lawful arrest are limited to the area within the arrestee’s immediate control: Or that area from which he or she might obtain a weapon. Such searches are justified in large part to ensure officer safety. If the police are holding a person in one room of the house, they cannot search and seize property in another part of the house, away from the arrestee’s immediate physical presence.
Warrantless, in-home “protective sweep”: Of the area in which a suspect is arrested to reveal the presence of anyone else who might pose a danger is also allowed. Such a search, if justified by the circumstances, is not a full search of the premises and may include only a cursory inspection of those spaces where a person could be hiding.
Terry Stop: Searches during field interrogation (stop-and-frisk searches): when a police officer briefly detains a person for questioning and then frisks (“pats down”) the person if the officer reasonably believes he or she is carrying a weapon.
Automobile search incident to a stop.
Actual search may have been conducted without a warrant, but officers later learned there was a legal and duly authorized warrant for a search, so items allowed into evidence.
Consent to the search – who can consent?
Sobriety Check points – stop all vehicles, not targeted stops.
Roadblocks – to check all motorist to identify crime (who is driving on suspended licenses or stolen cars, and gain information about crime, e.g., escaped convict) but must be very short, only a few minutes.
Other types of searches
Automobiles:
When an officer has probable cause to believe that an automobile contains criminal evidence, a warrantless search is allowed.
The U. S. Supreme Court also allows the police to enter an impounded vehicle following a lawful arrest in order to inventory its contents. A person’s general consent to a search of the interior of an automobile also justifies a search of any closed container found inside the car that might reasonably hold the object of the search.
The officer may search objects belonging to a passenger in the vehicle, provided the item the officer is looking for could reasonably be in the passenger’s belongings (such as finding drugs in a passenger’s purse).
Motorist have no privacy if contraband is hidden. Motorists have no expectation of privacy during a traffic stop if contraband is hidden in a vehicle and detected by a drug-sniffing dog.
Plain-view and open field:
Search not required for items in plain view.
Fences, posting of “No Trespassing” signs can’t prevent warrantless searches.
Naked-eye aerial observation allowed.
Consent searches:
Warrantless search with voluntarily consent.
Hotel management cannot give consent to warrantless search of customer’s room as they have a reasonable expectation of privacy.
Power to seek consent from co-occupant. In cases, when one occupant of a home consents to a search while the other occupant refuses, police have the power to seek consent from the co-occupant. Police can legally arrest that occupant for some other reason and may return and seek consent from a co-occupant who then has the right to voluntarily consent to a search of the entire premises.
Electronic Surveillance:
The U.S. Supreme Court has required that warrants for electronic surveillance be based on probable cause: Describe the conversations that are to be overheard, be for a limited period of time, name subjects to be overheard, and be terminated when the desired information is obtained.
However, electronic eavesdropping (i.e., when an informant wears a “bug,” or hidden microphone) does not violate the Fourth Amendment.
The Fifth Amendment
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Application:
Applies to criminal defendants, witness, and anyone testifying.
Protects the right against self-incrimination.
Provides two legal triggers for Miranda warning: custody and interrogation.
Exceptions to Miranda:
1. A second interrogation session: Held after the suspect had initially refused to make a statement did not violate Miranda.
- When a suspect waived his or her Miranda rights, believing the interrogation would focus on minor crimes, but the police shifted their questioning to a more serious crime, the confession was valid; there was no police deception or misrepresentation.
- When a suspect invoked his or her right to assistance of counsel and refused to make written statements, then voluntarily gave oral statements to police, the statements were admissible.
- A suspect must clearly invoke the Miranda right: The Supreme Court has ruled that even when a suspect remained silent during three continuous hours of police questioning, the suspect had not invoked his rights under Miranda, suspects must specifically say that they are choosing to remain silent.
Lineups and photo arrays:
Lineup: A procedure in which police ask suspects to submit to a viewing by witnesses to determine the guilty party, based on personal and physical characteristics; information obtained may be used later in court.
A police lineup or other face-to-face confrontation after the accused has been arrested is considered a critical stage of criminal proceedings: Therefore, the accused has a right to have an attorney present. If counsel is not present, the evidence obtained is inadmissible. However, an attorney is NOT required at a photo array.
The Sixth Amendment
“In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.”
Right to a speedy and public trial by an impartial jury.
Right of the accused to have the assistance of counsel.
