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In this journal entry, reflect on at least two things you learned or discovered through the Chapter’s readings. Reflect on how a particular topic in the chapter was interesting, challenging, boring, surprising to you and how you may apply a particular concept or theory you learned in the reading in your current or future profession.

Instructions: There is no minimum word limit for your journals, however, you will need to put in some effort and write at least a couple of good paragraphs for your reflection journals.

Criminal Justice: A Brief Introduction Thirteenth Edition

Chapter 5 Policing: Legal Aspects

The Abuse of Police Power

• Police involvement in the deaths of Freddie Gray, Walter Scott, Eric Garner, and Michael Brown are examples of abuse of police power

• The beating of Rodney King by L A P D officers was the most widely discussed abuse of police power prior to these events

• No one is above the law, not even the police

A Changing Legal Climate

• The U.S. Constitution and Bill of Rights are designed to protect citizens against abuses of police power

• In the 1960s, the Warren Court focused on guaranteeing individual rights during criminal prosecution by holding the criminal justice system to strict procedural requirements

• More recently, a new conservative Court philosophy has reversed some Warren-era advances

Table 5.1 Constitutional Amendments of Special Significance to the American System of Justice (1 of 2)

This Right Is Guaranteed By This Amendment

The right against unreasonable searches and seizures

Fourth

The right against arrest without probable cause Fourth

The right against self-incrimination Fifth

The right against “double jeopardy” Fifth

The right to due process of law Fifth, Sixth, and Fourteenth

The right to a speedy trial Sixth

The right to a jury trial Sixth

The right to know the charges Sixth

The right to cross-examine witnesses Sixth

The right to a lawyer Sixth

Table 5.1 Constitutional Amendments of Special Significance to the American System of Justice (2 of 2)

This Right Is Guaranteed By This Amendment

The right to compel witnesses on one’s behalf Sixth

The right to reasonable bail Eighth

The right against excessive fines Eighth

The right against cruel and unusual punishments

Eighth

The applicability of constitutional rights to all citizens, regardless of state law or procedure

Fourteenth

Note: The Fourteenth Amendment is not a part of the Bill of Rights.

Checks and Balances

• The Constitution provides for checks and balances among the legislative, judicial, and executive branches

– One branch is always held accountable to other branches

– System ensures that no individual or agency can become too powerful

• People who feel their rights were violated can appeal to courts for redress

Due-Process Requirements

• Due process required by 4th, 5th, 6th, and 14th Amendments

• Areas where due process requirements are relevant to the police:

– Evidence and investigation (search and seizure) – Detention and arrest – Interrogation

• Landmark cases produce major changes in justice system operations

Search and Seizure

• Fourth Amendment protects against unreasonable searches and seizures:

–“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.”

The Exclusionary Rule (1 of 2)

• Holds that evidence illegally seized by the police in violation of a defendant’s constitutional rights cannot be used in a trial

• Exclusionary rule acts as a control over police behavior

• Weeks v. U.S. (1914) – First landmark case concerning search and

seizure – Only applied exclusionary rule to federal officers

The Exclusionary Rule (2 of 2)

• Writ of Certiorari – A writ issued from an appellate court for the

purpose of obtaining the lower court’s records of a particular case

– A mechanism for discretionary review

• Fruit of the poisonous tree doctrine – Evidence later developed as a result of illegal

search and seizure is excluded from trial – Silverthorne Lumber Co. v. U.S. (1920)

Protective Searches (1 of 2)

• Most police searches are conducted without a warrant (warrantless searches)

• Chimel v. California (1969) – Warrantless search incident to arrest is limited

to area in suspect’s immediate control

• Minnesota v. Olson (1990) – Extended protection against warrantless

searches to overnight guests in the name of another

Table 5.2 Implications of Chimel v. California (1969)

What Arresting Officers May Search

The defendant

The physical area within easy reach of the defendant

Valid Reasons for Conducting a Search

To protect the arresting officers

To prevent evidence from being destroyed

To keep the defendant from escaping

When a Search Becomes Illegal

When it goes beyond the defendant and the area within the defendant’s immediate control

When it is conducted for other than a valid reason

Protective Searches (2 of 2)

• Minnesota v. Carter (1998) – Reasonable expectation of privacy required for

4th Amendment protection

• Georgia v. Randolph (2006) – Officers may not conduct a warrantless search

if one resident gives permission, but the other refuses

• Bailey v. U.S. (2013) – Limited the power of the police to detain

people who are away from home while police search their residence

The Warren Court (1953-1969)

• Before the 1960s, the U.S. Supreme Court rarely intruded into the overall operations of the criminal justice system

• Mapp v. Ohio (1961) – Applied exclusionary rule to the states – Started the Warren Court on a course that would

guarantee recognition of individual rights

• Warren Court known as liberal or “progressive” court

The Burger Court (1969–1986)

• Court distanced itself from earlier decisions of Warren Court

• Decisions supportive of a “greater good era”—emphasis on social order and communal safety

• Criminal defendants had most of the responsibility of demonstrating that the police went beyond the law in the performance of their duties

The Rehnquist Court (1986–2005)

• The United States showed strong swing toward conservatism and renewed concern with protecting the interests of those living within the law

• Rehnquist Court invoked a characteristically conservative approach to important criminal justice issues

– Limited the exclusionary rule – Broadened police powers – Limited opportunities for appeals by offenders

The Roberts Court (2005–Today)

• Court known for conservative nature, although many opinions closely divided

• Court willing to change the law; gives little weight to precedent and stare decisis

• Roberts Court has been eroding the exclusionary rule

– Herring v. U.S. (2009): Exclusionary rule may be used only if there is an intentional or reckless violation of Fourth Amendment rights or systematic police violations with regard to searches and seizures

Good-Faith Exceptions to the Exclusionary Rule

• Good-faith exception – Allows evidence seized on the basis of good

faith, but later shown to be a mistake, to be used in court

– U.S. v. Leon, Massachusetts v. Sheppard (1984) – Clear reversal of Warren Court philosophy

• Probable cause – A set of facts that would induce a reason person

to believe that a crime was committed

The Plain View Doctrine

• Officers may seize evidence in plain view without a warrant if they are in a place where they have a legal right to be

• Key cases – Harris v. U.S. (1968) – U.S. v. Irizarry (1982) – Arizona v. Hicks (1987) – Horton v. California (1990)

• Electronic evidence creates a special problem

Emergency Searches of Property and Emergency Entry (1 of 2)

• Emergency searches involve warrantless searches which are justified on the basis of some immediate and overriding need

• Three threats provide justification for emergency warrantless action

– Clear danger to life – Clear danger of escape – Clear danger of the removal or destruction of

evidence

• Exigent circumstances searches

Emergency Searches of Property and Emergency Entry (2 of 2)

• Key cases – Warden v. Hayden (1967) – Maryland v. Buie (1990) – Wilson v. Arkansas (1995) – Richards v. Wisconsin (1997) – Illinois v. McArthur (2001) – Hudson v. Michigan (2006) – Kentucky v. King (2011)

Anticipatory Warrants

• Anticipatory warrant – Search warrant issued on the basis or probable cause

to believe that evidence, while not currently at the place described, will likely be there when the warrant is executed

• U.S.v. Grubbs (2006) affirmed the constitutionality of anticipatory warrants

Detention and Arrest (1 of 2)

• Arrest – The act of taking someone into physical custody

by authority o flaw to charge that person with a crime, delinquent act, or status offense

– Occurs when a law enforcement officer restricts a person’s freedom to leave

• Arrest is a form of seizure under the Fourth Amendment

• Investigative detention is not the same as arrest – A temporary detention for investigative

purposes, based on reasonable suspicion

Detention and Arrest (2 of 2)

• Key cases – U.S. v. Mendenhall (1980) – Stansbury v. California (1994) – Yarborough v. Alvarado (2004) – Muehler v. Mena (2005) – Rodriguez v. U.S. (2015) – Payton v. New York (1980)

Searches Incident to Arrest

• A warrantless search of an arrested individual to ensure the safety of the officer

• Terry-type stop – Brief stop and frisk based on reasonable

suspicion

• Reasonable Suspicion – Belief that would justify an officer in making

further inquiry or in conducting further investigation

– Sufficient for investigative detention but not arrest

Searches Incident to Arrest—Cases (1 of 2)

• U.S. v. Robinson (1973)

• Terry v. Ohio (1968)

• U.S. v. Sokolow (1989)

• U.S. v. Arvizu (2002)

• Minnesota v. Dickerson (1993)

Searches Incident to Arrest—Cases (2 of 2)

• Brown v. Texas (1979)

• Hibbel v. Sixth Judicial District Court of Nevada (2004)

• Smith v. Ohio (1990)

• California v. Hodari D. (1991)

Emergency Searches of Persons

• Fall under exigent circumstances exception

• F B I guidelines for conducting searches – Probable cause at the time of the search to

believe that evidence was concealed – Probable cause to believe an emergency threat

of destruction of evidence existed – No prior opportunity to obtain a warrant – Action was no greater than necessary

Emergency Searches of Persons— Cases

• Arkansas v. Sanders (1979)

• U.S. v. Borchardt (1987)

Vehicle Searches

• Motor vehicles create a special problem for law enforcement, due to their mobility

• Fleeting-targets exception – Exception to the exclusionary rule that permits

police to search a motor vehicle based on probable cause but without a warrant

– Justified by the fact that vehicles are highly mobile and can leave police jurisdiction quickly

Vehicle Searches—Cases (1 of 3)

• Carroll v. U.S. (1925)

• Preston v. U.S. (1964)

• Arizona v. Gant (2009)

• South Dakota v. Opperman (1976)

• Colorado v. Bertine (1987)

• Florida v. Wells (1990)

Vehicle Searches—Cases (2 of 3)

• Ornelas v. U.S. (1996)

• Florida v. Jimeno (1991)

• U.S. v. Ross (1982)

• Whren v. U.S. (1996)

• Maryland v. Wilson (1997)

• Brendlin v. California (2007)

Vehicle Searches—Cases (3 of 3)

• Knowles v. Iowa (1998)

• Wyoming v. Houghton (1999)

• Thornton v. U.S. (2004)

• Illinois v. Caballes (2005)

• Davis v. U.S. (2007)

Roadblocks and Motor Vehicle Checkpoints

• Community interests may require temporary suspension of personal liberty even if probable cause is lacking

• Michigan Dept. of State Police v. Sitz (1990) – Highway sobriety checkpoints legal if essential

to community welfare

• U.S. v. Martinez-Fuerte (1976) – Suspicionless seizures to intercept illegal aliens

legal

• Illinois v. Lidster (2004) – Information-seeking highway roadblocks

permissible

Watercraft and Motor Homes

• U.S. v. Villamonte-Marquez (1983) – Police may conduct warrantless searches of

watercraft

• California v. Carney (1985) – Police may conduct warrantless searches of

motor homes

• U.S. v. Hill (1988) – Police may conduct warrantless searches of

houseboats

Suspicionless Searches

• The need to ensure public safety may provide compelling interest to justify limiting the right to privacy

• Suspicionless search – A warrantless search conducted when a person

is not suspected of a crime – National Treasury Employees Union v. Von Raab

(1989) – Skinner v. Railway Labor Executives’ Association

(1989)

Suspicionless Searches—Cases

• National Treasury Employees Union v. Von Raab (1989)

• Skinner v. Railway Labor Executives’ Association (1989)

• Florida v. Bostick (1991)

• Bond v. U.S. (2000)

• U.S. v. Drayton (2002)

• U.S. v. Flores-Montano (2004)

High-Technology Searches

• Use of high technology to discover and investigate crimes is forcing courts to evaluate applicability of constitutional protections to high-tech searches and seizures

• People v. Deutsch (1996) – California appellate court held that high-tech

searches may violate reasonable expectations of privacy

• Kyllo v. U.S. (2001) – Supreme Court held high-tech searches may be

presumptively unreasonable without a warrant

Informants (1 of 3)

• Use of paid informants raises ethical concerns – Informants may be paid to get away with crimes

– Police may agree not to charge an offender if he or she will testify against others in a group

• Successful use of informants in supporting requests for warrants depends on demonstrable reliability of their information

Informants (2 of 3)

• Two-pronged test – Established by Aguilar v. Texas (1964)

– Informant information could establish probable cause if:

▪ The source of the informant’s information is clear ▪ The officer has reasonable belief that the informant

is reliable

– U.S. v. Harris (1971)—exception to two-pronged test

Informants (3 of 3)

• Totality of the circumstances test – Established by Illinois v. Gates (1983)

– Probable cause for issuing a warrant exists where an informant can be reasonably believed on the basis of everything the police know

Police Interrogation

• Interrogation is the information-gathering activity of police that involves direct questioning of suspects

• Not limited to verbal questioning

• Interrogation of suspects is subject to constitutional limits as interpreted by the courts

Physical Abuse

• Brown v. Mississippi (1936) – Physical abuse cannot be used during interrogation to

obtain a confession or elicit information from a suspect

Inherent Coercion

• The tactics used by police interviewers that fall short of physical abuse but pressure the suspect to talk

– Includes nonphysical coercion, hostility, pressure to force a confession

• Ashcraft v. Tennessee (1944) – 5th Amendment prohibits inherent coercion

during interrogation

Psychological Manipulation

• Involves manipulative actions by police interviewers, designed to pressure suspects to divulge information, that are based on subtle forms of intimidation and control

• Leyra v. Denno (1954) – Banned use of professionals skilled in

psychological manipulation to gain confessions

• Arizona v. Fulminante (1991) – Interrogation may not involve sophisticated

trickery or manipulation

The Right to a Lawyer at Interrogation —Cases

• Escobedo v. Illinois (1964)

• Edwards v. Arizona (1981)

• Michigan v. Jackson (1986)

• Minnick v. Mississippi (1990)

• Arizona v. Roberson (1988)

• Davis v. U.S. (1994)

• Montejo v. Louisiana (2009)

• Maryland v. Shatzer (2010)

Suspect Rights: The Miranda Decision

• Miranda v. Arizona (1966) – Must advise suspects of their rights before

questioning (Miranda warnings) – No evidence obtained as a result of an

interrogation conducted without a rights advisement can be used against the suspect

– Rights extended to illegal immigrants living in the United States

• Key cases – U.S. v. Dickerson (1999) – U.S. v. Patane (2004)

CJ Exhibit 5.2 The Miranda Warnings

ADULT RIGHTS WARNING Suspects 18 years old or older who are in custody must be advised of the following rights before any questioning begins:

1. You have the right to remain silent. 2. Anything you say can be used against you in a

court of law. 3. You have the right to talk to a lawyer and to

have a lawyer present while you are being questioned.

4. If you want a lawyer before or during questioning but cannot afford to hire a lawyer, one will be appointed to represent you at no cost before any questioning.

5. If you answer questions now without a lawyer here, you still have the right to stop answering questions at any time.

WAIVER OF RIGHTS After reading and explaining the rights of a person

in custody, an officer must also ask for a waiver of those rights before any questioning.

The following waiver questions must be answered affirmatively, either by express answer or by clear implication. Silence alone is not a waiver.

1. Do you understand each of these rights I have explained to you? (Answer must be YES.)

2. Having these rights in mind, do you now wish to answer questions? (Answer must be YES.)

3. Do you now wish to answer questions without a lawyer present? (Answer must be YES.)

The following question must be asked of juveniles under he age of 18:

1. Do you now wish to answer questions without your

2. parents, guardians, or custodians present? (Answer

3. must be YES.)

Waiver of Miranda Rights by Suspects

• Suspects may waive their Miranda rights through a voluntary, knowing, and intelligent waiver

• Knowing waiver – Suspect must be advised of rights, must be in a

condition to understand them

• Intelligent waiver – Suspect must understand the consequences of

not invoking rights

Inevitable-Discovery Exception to Miranda

• Evidence gathered inappropriately can be used in court if it would invariably turned up in the normal course of events

• Key cases – Brewer v. Williams (1977)—“Christian burial

speech” – Nix v. Williams (1984)

Public-Safety Exception to Miranda

• Overriding considerations of public safety may negate the Miranda requirement in order to prevent further harm

• Key cases – New York v. Quarles (1984) – Colorado v. Connelly (1986) – Kuhlmann v. Wilson (1986) – Illinois v. Perkins (1990)

Miranda and the Meaning of Interrogation

• Rock v. Zimmerman (1982) – If the suspect is not in custody and probable

cause is lacking in the investigator’s mind, questioning can occur without Miranda warnings

– Interrogation within the meaning of Miranda has not yet begun

• Miranda triggers – The dual principles of custody and interrogation – Both are necessary before an advisement of

rights is required

Miranda and the Meaning of Interrogation—Cases

• Arizona v. Mauro (1987)

• Doyle v. Ohio (1976)

• Brecht v. Abrahamson (1993)

• Missouri v. Seibert (2004)

• Florida v. Powell (2010)

• Berghuis v. Thompkins (2010)

• Salinas v. Texas (2013)

Gathering Special Kinds of Nontestimonial Evidence (1 of 2)

• Nontestimonial evidence – Generally physical evidence – Special category includes personal items within

or part of a person’s body (ingested drugs, blood cells, DNA, fingerprints, etc.)

• Gathering of very personal nontestimonial evidence complicates the issue of constitutional protections

Gathering Special Kinds of Nontestimonial Evidence (2 of 2)

• Right to privacy – The courts have placed limits on seizures of

personal nontestimonial evidence – Hayes v. Florida, Winston v. Lee (1985) Police involvement in the deaths of Freddie Gray

• Body-cavity searches – Very problematic for police – U.S. v. Montoya de Hernandez (1985)

Electronic Eavesdropping—Cases

• Olmstead v. U.S. (1928)

• On Lee v. U.S. (1952)

• Lopez v. U.S. (1963)

• Berger v. New York (1967)

• Katz v. U.S. (1967)

• Lee v. Florida (1968)

• U.S. v. White (1971)

• U.S. v. Karo (1984)

Minimization Requirement for Electronic Surveillance

• U.S. v. Scott (1978)

• Officers must make all reasonable efforts to monitor only those conversations specifically related to the criminal activity under investigation

• As soon as it becomes obvious that a conversation is innocent, monitoring personnel must cease their invasion of privacy

The Electronic Communications Privacy Act of 1986

• Established the due-process requirements police must meet to legally intercept wire communications

• Deals with three areas of communications – Wiretaps and bugs – Pen registers recording numbers dialed from a

telephone – Tracing devices that determine the number from

which a call emanates

The Telecommunications Act of 1996

• Title V of this Act made it a federal offense for anyone engaged in interstate or international communications to engage in communications that are obscene, lewd, indecent, etc. with intent to annoy, abuse, threaten, or harass another person

• Communications Decency Act (CDA) criminalized the transmission to minors of “patently offensive” obscene materials over the Internet or other computer telecommunications services

– Reno v. ACLU (1997) invalidated portions of the CDA

The USA PATRIOT Act of 2001

• Made it easier for police to intercept many forms of electronic communications

• PATRIOT II (2006) extended or made permanent a number of provisions, including roving wiretap provision

• In 2011, President Obama extended several provisions of the U S A PATRIOT Act that would have otherwise expired

Cybersecurity Information Sharing Act (C I S A)

• Designed to improve cybersecurity in the United States by facilitating information sharing about cybersecurity threats

• Allows for easy sharing of Internet traffic information between the U.S. government and technology and manufacturing companies

• Critics say it facilitates mass surveillance of private communications

Electronic and Latent Evidence

• Latent evidence—not readily visible to the unaided eye

• Special characteristics of electronic evidence – Latent – Transcends national/state borders – Fragile – Time-sensitive

• Police must take special precautions when documenting, collecting, preserving electronic evidence

Criminal Justice: A Brief Introduction
The Abuse of Police Power
A Changing Legal Climate
Slide 4
Slide 5
Checks and Balances
Due-Process Requirements
Search and Seizure
The Exclusionary Rule (1 of 2)
The Exclusionary Rule (2 of 2)
Protective Searches (1 of 2)
Table 5.2 Implications of Chimel v. California (1969)
Protective Searches (2 of 2)
The Warren Court (1953-1969)
The Burger Court (1969–1986)
The Rehnquist Court (1986–2005)
The Roberts Court (2005–Today)
Good-Faith Exceptions to the Exclusionary Rule
The Plain View Doctrine
Emergency Searches of Property and Emergency Entry (1 of 2)
Emergency Searches of Property and Emergency Entry (2 of 2)
Anticipatory Warrants
Detention and Arrest (1 of 2)
Detention and Arrest (2 of 2)
Searches Incident to Arrest
Searches Incident to Arrest—Cases (1 of 2)
Searches Incident to Arrest—Cases (2 of 2)
Emergency Searches of Persons
Emergency Searches of Persons—Cases
Vehicle Searches
Vehicle Searches—Cases (1 of 3)
Vehicle Searches—Cases (2 of 3)
Vehicle Searches—Cases (3 of 3)
Roadblocks and Motor Vehicle Checkpoints
Watercraft and Motor Homes
Suspicionless Searches
Suspicionless Searches—Cases
High-Technology Searches
Informants (1 of 3)
Informants (2 of 3)
Informants (3 of 3)
Police Interrogation
Physical Abuse
Inherent Coercion
Psychological Manipulation
The Right to a Lawyer at Interrogation—Cases
Suspect Rights: The Miranda Decision
CJ Exhibit 5.2 The Miranda Warnings
Waiver of Miranda Rights by Suspects
Inevitable-Discovery Exception to Miranda
Public-Safety Exception to Miranda
Miranda and the Meaning of Interrogation
Miranda and the Meaning of Interrogation—Cases
Gathering Special Kinds of Nontestimonial Evidence (1 of 2)
Gathering Special Kinds of Nontestimonial Evidence (2 of 2)
Electronic Eavesdropping—Cases
Minimization Requirement for Electronic Surveillance
The Electronic Communications Privacy Act of 1986
The Telecommunications Act of 1996
The USA PATRIOT Act of 2001
Cybersecurity Information Sharing Act (C I S A)
Electronic and Latent Evidence

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