Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or...

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Chapter 8 Chapter 8 Policing within the Law Policing within the Law
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Transcript of Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or...

Page 1: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

Chapter 8Chapter 8

Policing within the LawPolicing within the Law

Page 2: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

pp

Reasonable search or reasonable seizure:Reasonable search or reasonable seizure: Reasonable means sensible, justifiable, Reasonable means sensible, justifiable,

logical, based on reason. A key to logical, based on reason. A key to determinant in whether an officer’s actions determinant in whether an officer’s actions are lawful is whether the officer has are lawful is whether the officer has reasonable suspicion that criminal activity is reasonable suspicion that criminal activity is occurring.occurring.

See See United States v. Arvizu (2002)United States v. Arvizu (2002) US Border Patrol Agent stopped a vehicle near US Border Patrol Agent stopped a vehicle near

Douglas, Arizona, suspecting the operator was Douglas, Arizona, suspecting the operator was smuggling aliens or drugs because it was traveling smuggling aliens or drugs because it was traveling a usually deserted road and set off a sensor. a usually deserted road and set off a sensor.

Page 3: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

However, The US Courts of Appeals However, The US Courts of Appeals reversed the district Court decision, reversed the district Court decision, holding that each factor of reasonable holding that each factor of reasonable suspicions should be reviewed suspicions should be reviewed independently. The Court reversed this independently. The Court reversed this decision, relying on past Court decision, relying on past Court decisions that reasonable suspicion is decisions that reasonable suspicion is based on the based on the totality of the totality of the circumstancescircumstances. The facts on which the . The facts on which the suspicion is based must be reviewed as suspicion is based must be reviewed as a whole.a whole.

Page 4: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

Probable Cause:Probable Cause: The concept of probable cause is one of The concept of probable cause is one of

the oldest and most important in criminal the oldest and most important in criminal law, having existed for more than 2,000 law, having existed for more than 2,000 years.years.

Probable Cause requires more than mere Probable Cause requires more than mere suspicion; it requires facts or proof that suspicion; it requires facts or proof that would lead a person of reasonable caution would lead a person of reasonable caution to believe a crime has been committed or to believe a crime has been committed or that premises contain evidence of a crime.that premises contain evidence of a crime.

Page 5: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

Probable cause may be based on:Probable cause may be based on: Observation by officersObservation by officers Expertise of officersExpertise of officers Circumstantial factorsCircumstantial factors Information communicated to officers.Information communicated to officers.

Observational Probable Cause: This is what Observational Probable Cause: This is what officers see, hear or smell, that is, officers see, hear or smell, that is, evidence presented directly to the senses. evidence presented directly to the senses. This is similar to eyewitness testimony and This is similar to eyewitness testimony and the strongest form of probable cause.the strongest form of probable cause.

Page 6: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

Suspicious activities contribute to PC. Suspicious activities contribute to PC. For example, a car being driven For example, a car being driven slowly can be suspicious when 1) the slowly can be suspicious when 1) the car has circled a block several times, car has circled a block several times, 2) the people in the car are carefully 2) the people in the car are carefully observing a building, 3) the building observing a building, 3) the building is closed and 4) the building is is closed and 4) the building is located in a high crime are. All four located in a high crime are. All four factors contribute to PCfactors contribute to PC

Page 7: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

Expertise and Circumstantial PC:Expertise and Circumstantial PC: Tied to observational PC. Officers knowledge of Tied to observational PC. Officers knowledge of

criminal traits and their ability to “put the pieces criminal traits and their ability to “put the pieces together” may also contribute to PC. together” may also contribute to PC.

Example: Two officers questioned two men seen Example: Two officers questioned two men seen driving from an alley at 2:00 a.m. The officers driving from an alley at 2:00 a.m. The officers noted the license number and occupants’ names noted the license number and occupants’ names and questioned the driver and passenger. The and questioned the driver and passenger. The two men were allowed to continue, but a short two men were allowed to continue, but a short time later, when the officers learned there had time later, when the officers learned there had been a burglary in a nearby town, they forwarded been a burglary in a nearby town, they forwarded the description of the car and its occupants to the the description of the car and its occupants to the local police, who apprehended the suspects. A local police, who apprehended the suspects. A search of the vehicle revealed burglary tools, as search of the vehicle revealed burglary tools, as well as the property taken in two burglaries.well as the property taken in two burglaries.

Page 8: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

Information PCInformation PC Covers a wide range of sources. In the previously Covers a wide range of sources. In the previously

described case, the information about the two described case, the information about the two suspects forwarded by the police to the nearby suspects forwarded by the police to the nearby town constituted informational probable cause.town constituted informational probable cause.

Official Sources include police bulletins, police Official Sources include police bulletins, police broadcasts, and roll-call information. It is the broadcasts, and roll-call information. It is the source that must establish PC. The source may source that must establish PC. The source may be a victim of a crime, an informant or a witness. be a victim of a crime, an informant or a witness. Complete and otherwise credible information Complete and otherwise credible information from an eyewitness, based on personal from an eyewitness, based on personal knowledge is generally sufficient to establish PCknowledge is generally sufficient to establish PC

Page 9: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

Stop and FriskStop and Frisk The simple act of stopping someone may lead The simple act of stopping someone may lead

to stop and frisk. The stop is also a field inquiry to stop and frisk. The stop is also a field inquiry or threshold inquiry.or threshold inquiry.

Terry v. Ohio (1968) Terry v. Ohio (1968) Detective McFadden, a veteran officer with 39 years Detective McFadden, a veteran officer with 39 years

experience, saw two men standing near a jewelry experience, saw two men standing near a jewelry store. They seemed to be just talking to each other, store. They seemed to be just talking to each other, but to McFadden, “they just didn’t look right.” Based but to McFadden, “they just didn’t look right.” Based on his experience, he suspected they were casing the on his experience, he suspected they were casing the store and were possibly armed. He watched for a store and were possibly armed. He watched for a while as the men went through the routine of walking while as the men went through the routine of walking around, looking into the store window, walking to the around, looking into the store window, walking to the corner and returning to the original spot to talk with corner and returning to the original spot to talk with each other. A third man joined them, went inside the each other. A third man joined them, went inside the store for a moment and came back out.store for a moment and came back out.

Page 10: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

McFadden approached the three men and McFadden approached the three men and identified himself as a officer. He asked their identified himself as a officer. He asked their names and then grabbed one of the men, names and then grabbed one of the men, later identified as John Terry. McFadded later identified as John Terry. McFadded made a quick pat down of Terry’s outer made a quick pat down of Terry’s outer clothing and found what he thought was a clothing and found what he thought was a gun.gun.

The issue: Is it always unreasonable for the The issue: Is it always unreasonable for the police to seize a person and conduct a police to seize a person and conduct a limited search for weapons unless there is limited search for weapons unless there is probable cause for arrest?probable cause for arrest?

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Recognizing McFadden as a man of Recognizing McFadden as a man of experience, training and knowledge, experience, training and knowledge, certainly “a man of reasonable caution,” the certainly “a man of reasonable caution,” the Supreme Court answered NO, upholding the Supreme Court answered NO, upholding the trial court verdict.trial court verdict.

The court said there is Seizure whenever a The court said there is Seizure whenever a police officer restrains an individual’s police officer restrains an individual’s freedom to walk away, and there is a search freedom to walk away, and there is a search when an officer explores an individual’s when an officer explores an individual’s clothing even though it is called a “pat clothing even though it is called a “pat down” or “frisk”down” or “frisk”

Page 12: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

Stop and Frisk is a protective search for Stop and Frisk is a protective search for weapons in which the intrusion must be weapons in which the intrusion must be limited to a scope reasonably designed to limited to a scope reasonably designed to discover guns, knives, clubs and other discover guns, knives, clubs and other hidden instruments that may be used to hidden instruments that may be used to assault a police officer or others. assault a police officer or others. TerryTerry established that the authority to stop and established that the authority to stop and frisk is independent of the power of arrest. frisk is independent of the power of arrest. A stop is not an arrest, but is a seizure A stop is not an arrest, but is a seizure within the meaning of the fourth within the meaning of the fourth amendment and, therefore, requires amendment and, therefore, requires reasonableness.reasonableness.

Page 13: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

Plain View and Plain feel/touchPlain View and Plain feel/touch Refers to evidence that is not concealed and is Refers to evidence that is not concealed and is

seen by an officer engaged in a lawful activity. seen by an officer engaged in a lawful activity. Vision can be augmented with binoculars and Vision can be augmented with binoculars and flashlights, but it is not proper to move or pick flashlights, but it is not proper to move or pick up items without PC.up items without PC.

Road Blocks and Checkpoints:Road Blocks and Checkpoints: Sobriety Checkpoints, serve a broad social Sobriety Checkpoints, serve a broad social

benefit or protecting motorists from drunk benefit or protecting motorists from drunk drivers.drivers.

Informational Roadblocks: used to merely Informational Roadblocks: used to merely seek information or witnesses about a seek information or witnesses about a unrelated crime.unrelated crime.

Page 14: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

The Supreme Court has held that The Supreme Court has held that drug checkpoints, general crime drug checkpoints, general crime control checkpoints and driver’s control checkpoints and driver’s license checkpoints are not license checkpoints are not constitutional.constitutional.

The Supreme Court has upheld The Supreme Court has upheld roadblocks at national borders, roadblocks at national borders, sobriety checkpoints and sobriety checkpoints and informational checkpoints.informational checkpoints.

Page 15: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

Lawful Searches:Lawful Searches: The principal justifications established The principal justifications established

by the courts for the right to search are by the courts for the right to search are when:when:

A search warrant is issuedA search warrant is issued No warrant is issued but:No warrant is issued but:

Consent to search was givenConsent to search was given Exigent circumstances existExigent circumstances exist There is no expectation of privacy and, thus, There is no expectation of privacy and, thus,

no requirement for a search warrantno requirement for a search warrant

Page 16: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

A search warrant is an order issued by a A search warrant is an order issued by a judge, a magistrate, with jurisdiction in the judge, a magistrate, with jurisdiction in the area where the search is to be made.area where the search is to be made.

Technically all searches are to be made Technically all searches are to be made under the authority of a search warrant under the authority of a search warrant issued by a magistrate. A search warrant is issued by a magistrate. A search warrant is a judicial order, based on PC, directing a a judicial order, based on PC, directing a officer to search for specific property, seize officer to search for specific property, seize it and return it to the Court. The search it and return it to the Court. The search must be limited to the specific area and must be limited to the specific area and specific items delineated in the warrant.specific items delineated in the warrant.

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Searches Conducted without a Warrant:Searches Conducted without a Warrant: Warrantless searches are justified when Warrantless searches are justified when

consent to search is given, when consent to search is given, when exigent circumstances exist or when no exigent circumstances exist or when no right to privacy exists.right to privacy exists.

Consent must be free and voluntary, Consent must be free and voluntary, and the search must be limited to the and the search must be limited to the area for which the consent was given.area for which the consent was given.

Page 18: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

When a officer conducts a When a officer conducts a warrantless search, they may be warrantless search, they may be challenged on the basis that:challenged on the basis that: PC was not established-in other words, PC was not established-in other words,

given the facts, a magistrate wouldn’t given the facts, a magistrate wouldn’t have issued a warranthave issued a warrant

The officers did not have time to secure The officers did not have time to secure a warrant and had no justification to act a warrant and had no justification to act without one.without one.

Page 19: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

If something is open to the public If something is open to the public and therefore has no expectation of and therefore has no expectation of privacy, it is not protected by the 4privacy, it is not protected by the 4thth Amendment. This includes open Amendment. This includes open fields, abandoned property and fields, abandoned property and trash.trash.

The US Supreme Court has ruled that The US Supreme Court has ruled that using thermal imaging to view inside using thermal imaging to view inside home without a warrant is home without a warrant is unconstitutional.unconstitutional.

Page 20: Chapter 8 Policing within the Law. p Reasonable search or reasonable seizure: Reasonable search or reasonable seizure: Reasonable means sensible, justifiable,

The most important limitation imposed on The most important limitation imposed on any search is that the scope must be any search is that the scope must be narrowed. General searches are narrowed. General searches are unconstitutional.unconstitutional.

Elements of a Criminal ArrestElements of a Criminal Arrest An intent by an officer to make an arrestAn intent by an officer to make an arrest Authority to arrestAuthority to arrest A seizure or restraintA seizure or restraint An understanding by the person that he or she An understanding by the person that he or she

is being arrested.is being arrested.

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Miranda v. ArizonaMiranda v. Arizona

suspects must be informed of their suspects must be informed of their rights to remain silent, to have rights to remain silent, to have counsel present, to state-appointed counsel present, to state-appointed counsel if they cannot afford one and counsel if they cannot afford one and to be warned that anything they say to be warned that anything they say might be used against them. This might be used against them. This must be given when a person is in must be given when a person is in police custody and NOT free to leave.police custody and NOT free to leave.

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REVIEW PAGE 276 AND 279 FOR REVIEW PAGE 276 AND 279 FOR LANDMARK CASES THAT INPACT LAW LANDMARK CASES THAT INPACT LAW ENFORCEMENT.ENFORCEMENT.