The Police & the Constitution
The Fourth Amendment
• “The right of the people to be secure in their
persons, houses, papers, & effects, against
unreasonable searches & 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 thing to be seized.”
• What is reasonable?
• What is probable cause
• When is a search constitutional?
What is Reasonable?
• Of course, a search/seizure is done to collect
evidence needed to convict individuals suspected of
criminal activity.
• There is no specific meaning for the word
“reasonable.”
• Depends on the circumstances or the situation.
• Reasonableness (in a way) depends upon probable
cause.
Probable Cause
• Probable cause exists if there is substantial
likelihood that
– A crime was committed
– The individual committed the crime
• Likelihood is the key word; more than just a
possibility.
• Probable cause must exist before police get a search
warrant or an arrest warrant.
• Facts & circumstances
• Cannot be applied retroactively.
• Suspicion does not equal probable cause.
Four Sources of Probable Cause
1. Personal observation: use professional training to
infer probable cause from situations that may not
be obviously criminal.
2. Information: victims, eyewitnesses, informants, &
official sources as long as it is believed to be
reliable.
3. Evidence: collected from undercover work or could
be in plain view.
4. Association: known criminal in an area with known
criminal activity (guilt by association.)
The Exclusionary Rule
• Evidence obtained illegally cannot be used in court.
• This is called “inadmissible.”
• Any evidence related to the illegally obtained
evidence also cannot be used in court.
• Known as “fruit of the poisoned tree.”
• Some get-tough-on-crime advocates believe this
rule should be restricted.
• However, it does force the police to gather evidence
properly.
• The exclusionary rule was established in 1914 for
federal courts.
• State courts didn’t have to abide by this rule.
• Many federal courts however still used illegally
obtained evidence if that evidence was obtained by
state officers.
• Became known as the “silver platter doctrine.”
• Mapp v. Ohio (1961) did away with the silver platter
doctrine.
• The Fourth Amendment is applicable to both
federal & state courts & related agencies.
• There are exceptions though.
• Inevitable discovery exception: if the police would
have discovered the evidence during the course of
their investigation, then the illegally obtained
evidence can be used in court.
• Good faith exception: evidence collected by a police
officer using a technically incorrect search warrant
is admissible if the officer was unaware of the error.
• The police officer was acting in “good faith.”
• If the police officers are aware the warrant is
incorrect, then the evidence can be suppressed.
Stops & Frisks
• A stop takes place when a law enforcement officer
has reasonable suspicion that criminal activity is
about to take place.
• There are limits to the extent police can detain
someone who has been stopped.
• A frisk is a protective measure.
• No “fishing expedition” frisks are allowed.
• The definition of reasonable suspicion is the basis of
the stop & frisk.
• “Reasonable suspicion” vs. “mere suspicion”
Reasonable Suspicion
• The precedent for “reasonable” suspicion was
established in Terry v. Ohio (1968).
• Reasonable suspicion should be based on objective
facts & practical conclusions.
• Officers must have “specific & articulable facts” to
support the decision to make a stop.
• Totality of the circumstances test.
• On the opposite end of the totality test is the “bare
bones” anonymous tip.
• The only way an anonymous tip can pass the
totality test is if it is specific enough for the police to
verify it with their own observations.
• What happens if you’re stopped & then arrested?
Arrests
What is an Arrest?
• When police take custody of a person for the
purpose of detaining h/h on a criminal charge.
• An arrest is a deprivation of liberty & the person is
entitled to the full range of constitutional
protections.
• A law enforcement agent needs probable cause to
make an arrest
• If a person believes he is not free to leave, then that
person is under arrest & deserving of constitutional
protections.
Elements of an Arrest
1. The intent to arrest: do the law enforcement
agents intend to take the person into custody.
2. The authority to arrest: police officers acting in
accordance with their duties have the authority to
arrest people.
3. Seizure or detention: once the person submits to
the arresting officer, then that person is under
arrest.
4. Understanding: the person must understand that
s/he is under arrest
• So, in simple terms……
– If the police come to your house with an arrest warrant,
then you will be taken into custody b/c the elements are
there.
– If the police stop you for suspicion of criminal activity &
you cause a ruckus, & the police have to forcibly
restraint you & put you in cuffs, then you are under
arrest.
– If the police tell you, “you are under arrest,” & you
submit, then you are under arrest.
– If the police ask you to come down to the station for
questioning & detain you in a room & you perceive that
you are under arrest, then you are under arrest.
• If the police bring you down to the station for
questioning & after an hour, you ask them if you are
under arrest & they say no, then you are not under
arrest.
• If the police bring you down to the station for
questioning & after an hour, you ask them if you are
under arrest & they say don’t worry about that right
now, more than likely, you are under arrest.
• If you feel like you can’t leave, then you are under
arrest.
Arrests with a Warrant
• Many arrests are done with an arrest warrant.
• This is a written order, based on probable cause &
issued by a judge or magistrate.
• Warrant commands the police to take the named
person into custody.
• If the police come to your house, they must first
knock & announce their identity & purpose before
entering.
• There is no exact time period for the police to wait
before breaking down the door.
Exigent Circumstances
• Law enforcement officers do not need to announce
themselves if
– The suspect is armed & dangerous (strong threat of
violence to the officers or others)
– People inside the dwelling are destroying evidence or
trying to escape
– A felony is being committed at the time the officers
enter.
Arrests without a warrant
• Warrantless arrest can take place if
– Offense is being committed in the presence of the officer
– Officer has knowledge that a crime has been committed
& probable cause to believe the crime was committed
by a particular suspect.
• Depending on the circumstances, a warrantless
arrest can be unlawful even if the police officer has
probable cause.
• Mostly if exigent circumstance do not exist (police
can’t force themselves into a place.)
• FYI, the police cannot arrest a suspect in another
person’s home without a search warrant.
• So, to make a warrantless arrest, the police can’t
force themselves into a suspect’s house or arrest
that person in a friend’s house.
Lawful Searches & Seizures
How far can the police go in
searching & seizing private property?
The Role of Privacy
• A search is a government intrusion on a citizen’s
reasonable expectation of privacy.
• What is reasonable expectation of privacy?
– The individual must prove that s/he expected privacy
– Society must recognize that expectation as reasonable
• Is a police search of your garbage put by the
roadside a legal search?
• Yes, once you put your garbage by the road, it
becomes public & the police may search it.
• This concept also relates to things like drinking cups
& cigarette butts…..once you relinquish “custody”
of the item, it is public property.
• You have no reasonable expectation of privacy.
• Police usually must have a search warrant or
consent to search in order to carry out a legal
search.
• Search warrant: court order that authorizes the
police to search a certain area looking for specific
items.
• To get a search warrant, the police need probable
cause that a crime has been or will be committed.
• The search warrant needs to have……
– Info on premises to be searched
– Suspect to be found
– Illegal activities taking place
– Items to be seized
• Must state with particularity! (see above)
• Police need to prepare an affidavit first to give to
the judge for the search warrant.
– Affidavit: sworn statement of fact given under oath; an
affidavit is usually witnessed & notarized.
– An affidavit is a legal document & enforceable by the
court.
• Seizure: taking possession of a person or property
b/c of a suspected violation of the law.
• What can be seized?
– Items that resulted from crime
– Items inherently illegal to possess
– Items that are evidence of a crime
– Items used in the commission of a crime
• Police must still act reasonably during a seizure.
– Plain view doctrine: if police are looking for a large item
then they are limited in the places they can search.
– The police can’t search in small drawers or out of the
way places if the warrant doesn’t particularly state it.
S&S without a warrant
• Warrantless searches & seizures do happen.
• “Hot pursuit”
• 2 most common warrantless arrests are searches
incidental to an arrest & consent searches.
• Searches incidental to arrest: when police make an
arrest, they always search a person
– As long as the original arrest was based on PC, then the
search is legal.
• Police are looking for evidence or weapons.
“Immediate Control”
• To what extent can the police search before they
arrest a person?
– The police may search any area within the suspect’s
“immediate control.”
– The police can only search the room where the arrest
occurs (unless they have a search warrant to search the
entire house.)
– Immediate control is also called “arm’s reach doctrine.”
Consent Search
• Individuals give police permission to search their
persons, homes, or belongings.
• The consent must be voluntary; the search is invalid
if the person is coerced or physically threatened.
• Many people think consent search are rarely
voluntary b/c most people are intimidated by the
police (they give consent b/c they don’t think they
have a choice.)
• Police are not required to tell a person s/he has
choice in the matter.
Searches of Automobiles
• SCOTUS has been very lenient concerning searches
of automobiles.
• Police can legally make a warrantless search of the
car’s entire front & back compartments (expanded
interpretation of “immediate control.”)
• 1925: SCOTUS established the precedent that the
4th Amendment does not require police to get a
search warrant to search autos or other movable
vehicles.
• Still must have probable cause.
• Reasoning of the court:
– Requiring a warrant places too heavy a burden on police
officers.
– People in a car do not have the same reasonable
expectation of privacy.
• Police can also use other situations to stop a car in
order to search for drugs.
– Stop a car for speeding & search for drugs.
– The search is legal as long as the person was speeding.
• SCOTUS has also ruled that police may order
passengers out of a car as well as the driver (during
a traffic stop.)
• Protection of the police officer.
Plain View Doctrine
• Plain View Doctrine applies to contraband that is in
plain view.
• If a police officer makes a stop for a legal reason &
s/he sees illegal materials out in the open, then the
officer can seize the materials without a warrant.
• Must meet 4 criteria:
– Item must be detected easily by officers’ sight or some
other sense.
– Officer is legally in a position to notice the item.
– Discovery is inadvertent—the officer didn’t intentionally
find the item.
– Officer immediately recognizes the illegal nature of the
item.
Interrogation & Miranda
• The interrogation process relies on the Miranda
warning.
• Without being Mirandized, a suspect’s confession
may be inadmissible in court.
• The legal basis for Miranda is in the 5th
Amendment (right against self-incrimination.)
• Escobedo v. Illinois (1964) SCOTUS overturned the
conviction of a alleged murderer b/c police had
refused his request to speak to his lawyer who was
actually present at the police station.
• Escobedo set up a 5-prong test.
• If any one of the five prongs was not satisfied, the
suspect had effectively been denied h/h right to
counsel under the 6th Amendment.
• Miranda v. Arizona (1966) started the procedural
requirement for police to advise suspects of their
Constitutional rights under the 5th & 6th
Amendments.
• Another part of Miranda is the concept of inherent
coercion: the general atmosphere of an
interrogation is in and of itself coercive.
• SCOTUS is concerned about the treatment of
suspects during interrogation.
• The Court found that some police methods were
inherently coercive (leaving a person in an
interrogation room makes a person feel like s/he
HAS to talk to the police.)
• Therefore, the Court said that all suspects taken
into custody must be advised of their Constitutional
rights (Miranda Warning.)
• The MW is required when a suspect is in custody.
• Custody = an arrest or situation in which a
reasonable person would not feel free to leave.
• Custodial interrogation = suspect is under arrest or
is deprived of h/h freedom in a significant manner
• Important to remember: the MW is only required
BEFORE a custodial interrogation takes place.
• MW is NOT required in the following situations:
– Non-testimonial type of questions (routine booking
questions.)
– Questioning witnesses at the scene of a crime.
– Person volunteers info before the police have asked a
question.
– Suspect has given a private statement to a friend or
some other acquaintances.
– During a stop & frisk, when no arrest is made.
– During a traffic stop.
• Suspects may waive their 5th Amendment rights &
speak to the police ONLY if the waiver is made
voluntarily.
• Suspect MUST state orally or in writing.
• Police must ask the following questions to make
absolutely sure the suspect understands that s/he is
waiving Miranda rights.
– Do you understand your rights as I have read them to
you?
– Knowing your rights, are you willing to talk to another
law enforcement officer or me?
• If the suspects does not want to speak to the officer
then the officer must stop the interrogation.
• If the suspect wants a lawyer s/he MUST clearly
state, “I want to speak to a lawyer.”
• The court has said that vague statements like,
“Maybe I should speak to a lawyer,” DO NOT qualify
as explicit demands for an attorney & thus are not
protected under the Constitution.
• Suspects must be explicitly clear in their request to
speak to a lawyer.
Police Techniques
• Conditioning Strategy: encourages the suspect to
think positively about the interrogator & is
conditioned to cooperate. Police will
– Make small talk
– Offer coffee or a cigarette
– Make sure suspect is comfortable & at ease
• Outcome: suspect feels like talking and will waive
h/h Miranda rights.
• De-emphasizing Strategy: police will downplay the
importance of Miranda; gives impression that the
rights are unimportant & can easily be waived.
– Police make it seem like it’s just a formality so they can
get a suspect to talk.
– “Let’s just get this out the way & we can talk…….”
– Makes the suspect feel like s/he can talk openly without
it being used against him.
• Persuasion Strategy: police officer will explicitly try
to get the suspect to waive h/h rights.
– The only way to get your side of the story is if you talk to
me; you want people to know your side of the story,
right?
Identification Process
3 Basic Types of ID Process
• Show ups: person matching the description of the
suspect is apprehended near the scene; brought
back to the scene for witnesses to identify.
• Photo arrays: police use mug shots with a suspect
included to see if a witness can pick out the person
suspected of the crime.
• Lineups: lining up several physically similar people,
one is the suspect, to see if a witness or victim can
identify the perp.
• FYI, 6th Amendment right to counsel does not apply
during show-ups or photo arrays.
• Any procedure that does not require the suspect’s
presence does not require the presence of h/h
attorney.
• Police can not steer a witness toward a positive
identification with leading statements.
– “Are you sure this isn’t the person you saw robbing the
grocery store last night?”
– Violation of a person’s due process rights.
• Is the booking procedure a violation of a person’s
5th Amendment rights?
• SCOTUS has said NO.
• Non-testimonial evidence is NOT equivalent to
testimonial self-incrimination
• Police can
– Finger print a suspect
– Take a mug shot
– Blood samples
– DNA sample
– Voice sample
– Handwriting sample