Chapter 8
Police and the Rule of Law
Identification of Criminal Behavior
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The means police use to identify criminal behavior is controlled by
law and court decisions.
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Surveillance
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Search and frisk
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Trading immunity for information
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Temporary detention
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Apprehension and arrest
Concept Summary 8.1 The Elements of a Search Warrant
Unreasonableness
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A standard applied to search warrant applications
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Unreasonableness generally exists when an officer exceeds the
scope of police authority or from a lack of probable cause
Process of Obtaining a Search Warrant
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A warrant is requested from the court
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An affidavit of support is submitted
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Application specifies place to be searched and items to be seized
Exhibit 8.1 Categories of Evidence: Warrants are typically
issued to search for and seize a variety of evidence.
Search Warrants, Hearsay and Informants

The police must prove to a judge that, considering the “totality of the
circumstances,” an informant has relevant and factual knowledge
that a fair probability exists that evidence of a crime will be found in a
certain place
Stop and Frisk or Threshold Inquiries

Terry v. Ohio (1968) findings:
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May stop and search in a limited manner
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Suspicious behavior is required
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May not be used to harass
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May not be used to conduct exploratory searches
Warrantless Searches: Incident to Lawful Arrest

Legality of this type of search almost always relates to the legality of
the arrest

If the arrest is found invalid, then any warrantless search made
incident to it would be considered illegal and the evidence obtained
would be excluded in court

Most of these deal with exigent circumstances
An Arrest is Generally Lawful if...
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The officer observes the crime
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The officer has probable cause to believe a crime was committed
and that the suspect committed it
Two General Rules for Conducting a Lawful
Search Incident to Arrest
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That the officer searches the suspect at the time of, or immediately
following, the arrest
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That the officer searches only the suspect and the area within the
suspect’s immediate control
Warrantless Searches of Automobile

Must be based on the legal standard of probable cause that a crime
related to the automobile has been or is being committed

Police who undertake the search of a vehicle must have reason to
believe that it contains evidence pertaining to the crime
Roadblock Searches
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Random stops are forbidden
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Roadblocks are permissible if they:
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Stop cars in a systematic fashion
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Have procedures for stops that are determined by someone other
than the officer(s) at the scene
Pretext Stops
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. . . as long as there is a legal basis for making an arrest, officers
may do so, even in cases where they are motivated by a desire to
gather evidence of other suspected crimes.
Consent Searches
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Consent must be given:
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Voluntarily
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Intelligently
Florida v. Bostick: “The Bus Sweep”
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The nature of a bus sweep does not invalidate consent, but was
Bostick in custody when the search occurred?
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The driver had left the bus and the door was closed
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The officers blocked Bostick, who was in the back of the bus
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One officer was holding his gun in clear view
Searches by sight and feel
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The Fourth Amendment’s protection for reasonable expectations of privacy does
not cover criminal evidence that can be seen or felt by officers in specific
situations.
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Plain View. Coolidge v. New Hampshire (1971): Officers are permitted to
notice and use as evidence items in plain view when they are in a location
that they are permitted to be.
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Open Fields. Oliver v. U.S. (1984): Officers are permitted to intrude on
private lands that are open areas, such as fields and pastures, but they may
not search the yard (“curtilage”) area immediately surrounding a house
without a warrant or a specific justification for a warrantless search.

Plain Feel. Minnesota v. Dickerson (1993): While conducting a pat-down
search of a suspect’s outer clothing, items in pockets or clothing may be
seized as evidence if they are immediately identifiable by touch as weapons
or contraband.
Electronic Surveillance
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Wiretaps requiring court approval and a search warrant

Katz v. United States (1967): The government must obtain a court
order if it wishes to listen in on conversations in which the parties
have a reasonable expectation of privacy.
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Material can be seized electronically without a warrant if the suspect
has no expectation of privacy.
Concept Summary 8.2 Warrantless Searches
What is an Arrest?

When the officer believes that sufficient legal evidence exists that a
crime has been or is being committed and intends to restrain the
suspect
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The officer deprives the individuals of his or her freedom
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Suspect believes he or she is in custody and cannot voluntarily leave
Miranda v. Arizona (1966)

You have the right to remain silent
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If you decide to make a statement, the statement can and will be
used against you in a court of law
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You have the right to have an attorney present at the time of the
interrogation, or you will have an opportunity to consult with an
attorney
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If you cannot afford an attorney, one will be appointed for you by the
state
When Illegally Gained Statements and
Evidence Can Be Used

Illegally gained evidence can be used to impeach a defendant’s
testimony during trial if the defendant perjures him or her self.

At trial, testimony of a witness is permitted even though the witness’s
identity was revealed by the defendant in violation of the Miranda
rule.
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Evidence is permissible if it would have been obtained anyway by
other means or sources (inevitable discovery rule).
When Illegally Gained Statements and
Evidence Can Be Used (cont.)

Initial errors by police in getting statements do not exclude
subsequent statements from use once a Miranda error has been
corrected.
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Admissions of mentally impaired defendants can be admitted as long
as evidence shows the police acted properly and there is a
preponderance of the evidence that the party understood the
meaning of Miranda.

An erroneous admission of a coerced confession at trial can be
admitted if it is ruled a “harmless error” and would not have
automatically resulted in overturning a conviction.
Narrowing the Scope of Miranda

Miranda only applies to an attorney, not a priest, probation officer or other
official.
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A suspect can be questioned in the field without Miranda warnings if it is
necessary to protect public safety (the public safety doctrine).

Suspects need not be aware of all the possible outcomes of waiving their rights.

Miranda applies only when the suspect requests an attorney, not when one has
been brought in by family or friends.
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An ambiguous reference such as “maybe I should talk to an attorney” does not
constitute a formal request for counsel.
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Failure to give Miranda warnings is not illegal unless the case actually becomes
a criminal matter.
Pretrial Identification Process
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Right to counsel at post-indictment lineup
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No right to counsel at pre-indictment or pre-complaint lineup
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Rules exist to limit “suggestiveness” of the process. The court must
weigh all factors such as:

The opportunity of the witness to view the criminal at the time of
the crime
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The degree of attention by the witness and the accuracy of the
prior description by the witness
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The level of certainty demonstrated by the witness
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The length of time between the crime and the confrontation
The Exclusionary Rule
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Weeks v. United States
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Wolf v. Colorado
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Established the exclusionary rule for the federal court
Warned states that the exclusionary rule may apply to them
Mapp v. Ohio
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Exclusionary rule applies to state court actions
Criticisms of the Exclusionary Rule

The exclusionary rule as it now exists:
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Has had no direct impact on police practices
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Has not controlled police harassment
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Has allowed guilty individuals to go free
New Cases Weaken the Exclusionary Rule
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Illinois v. Gates - anonymous letter establishes probable cause for
search warrant
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United States v. Leon - good faith exception based on magistrateissued warrant
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Illinois v. Krull - good faith exception okay if based on a state statute

Inevitable Discovery Rule - evidence that would have been
eventually found in the same condition
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Arizona v. Youngblood - mistaken loss of exculpating evidence not a
violation of rights
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Arizona v. Evans - good faith reliance on apparently valid warrant is
admissible
Suggested Approaches to Dealing With Violations of the
Exclusionary Rule

Criminal prosecution of police officers who violate constitutional
rights
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Better use of internal police controls
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Civil lawsuits against state or municipal police officers
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Federal lawsuits against the government under the Federal Tort
Claim Act