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- Police Search and Seizure
All rise. For many of us, our knowledge of the criminaljustice system comes from watching television ora movie. But real life issues may be treated quitedifferently. When a society and its governmentdecide that certain conduct is dangerous to itscitizens, such conduct is called a crime.Punishment comes through a sanction such asfines, imprisonment, probation, communityservice, or a combination of those. Most crimesare identified in laws that have been enacted byfederal, state, and local governments in responseto issues that affect that jurisdiction.
Some actions have been unlawful for thousandsof years. Others were outlawed, but are now legal.And then there are things people do that are legalin some places, but not in others. And while statesdiffer somewhat in their judicial systems, thereare norms and similarities. And just as citizens arebound by certain laws, those who enforce the laware bound by common procedures and rules,guaranteeing every citizen the rights andprotections known as due process. This is thestory of the American criminal justice system.
To fully understand the problem of crime in theUnited States, it is important to have someknowledge of the criminal justice process.
He had a TV in his arms–
What happens when someone reports a crime topolice? The path from the reporting to the finalsettlement is long and complex. The USConstitution is the primary source of law in theUnited States. It guarantees certain rights toindividuals. For instance, we are entitled to a trialby jury.
The Fourth Amendment ensures that citizenshave the right to be secure against unreasonablesearches and seizures. The Fifth Amendmentprevents us from being charged with the samecrime twice.
I think that you were trying to pin this case onyour brother–
And the Eighth Amendment protects the accusedfrom unreasonable bail and finds. Beyond federallaws, each state and local jurisdiction has its ownseparate statutes.
We often find ourselves in need of legislation toaddress some of the ills of a modern day society.
All criminal law now in every state and federalgovernment is statutory, made by either Congressor state legislatures. And the states are free anytime, the state legislatures are free to change thestatutes at any point, repeal them, add new ones.And then, of course, judges interpret and construestatutory enactments, which is the function of theJudiciary. So laws really get shaped in those twoways.
There was a van come up and we noticed it–
Criminal justice policy is a means for society toprovide an objective set of rules for governingconduct and maintaining order, as well as raisingpublic confidence that the system is fair and willprotect the law abiding citizen.
Crimes are often divided into three types–infractions, misdemeanors, and felonies.Infractions are the least serious. They arepunishable by fines only, and the fines are usuallyless than $1,000. For instance, traffic tickets orcitations for disturbing the peace are consideredinfractions. Misdemeanors can involve jail time aswell as fines, however jail time is generally lessthan a year. Common misdemeanors includingdriving under the influence and simple assault.Felonies are the most serious category of crimesand are punishable by a minimum of a year in jail,and can include higher fines. Examples includemurder or robbery.
Generally speaking in the law, all states aredifferent on how you describe crimes and theircriminal codes. Generally speaking, a first degreefelony is more severe than a second degree or athird degree. And normally, those crimes usuallyhave longer potential sentences in a statecorrectional facility.
Another way crimes are categorized is by thenature of the crime– who or what was targeted,and what kind of harm resulted. Crimes maybeagainst a person, against a property, or againstsociety.
Crimes against a person are traditionally crimes ofviolence– some violent physical contact, whetherit's a shooting, and stabbing, a sexual assault. Wethink about crimes against persons as crimesagainst violence. And usually they're considered alot more serious.
Crimes against property, we think in terms ofsomeone committing a larceny, that is the takingof some sort of property. It can also be waytrespassing on property. Embezzlement is a formof the taking of property, embezzling moneys.
In today's world is getting a lot more complicatedwith technology and the internet. We see moreand more electronic crimes of stealing youridentity and racking up your American Expresscard, or taking your money out the bank, orcreating a false identity and getting a lot of creditin your name. So the crimes against property arechanging and becoming more complex.
I mean crimes against society in general, we thinkof maybe persons who are committing gamingcrimes, election fraud, things of that nature wheresociety, itself may suffer the ills of that crime.
Most states separate the crime of murder into twocategories– First degree, and second degree.What distinguishes one from the other is whetherit is willful, deliberate, and premeditated.
Willful, deliberate, and premeditated, murder isdistinguished from– that's first degreedistinguished from second degree– which isdefined as coming with malice of forethought. Inorder to deliberate and premeditate you have tothink about the act in advance. There has to bereflection, some kind of deliberate process, whereyou are aware of what you're about to do.
Murder without malice or anger is manslaughter.And it can be either voluntary or involuntary.
If it's voluntary manslaughter it is required thatthere be an actual intent to kill. In other words,it's voluntary. It's an act where you actuallyintended the harm to occur. If it's an involuntarymanslaughter, it is an act that occurs while you'recommitting another crime, but you did not intendfor someone to die. So for example, if you'redriving a car at a high rate of speed that'sunlawful, and in the commission of that act youdrive into another car and cause the death of anindividual, then that is something that wouldseem to be an involuntary manslaughter, or verywell could be. Because there really wasn't anintention to go out and harm someone, but that'sa consequence of the other illegal act. It isn't justthe act that matters. The intent behind the act isalso considered. It is important to know themental state of the suspect when the act iscommitted.
Well, there are two elements to every crime. Oneis what the Latin refers to as the actus reus. Andthe other is the mens rea. The actus reus is theact. You have to do something that the legislaturehas defined as harmful and asocial, which wouldbe killing a human being in the context ofhomicide. And then the mental state that goesalong with that is the mens rea, which is whatreally makes the act culpable.
And so from property crimes to crimes against aperson, from the elements of a crime to thethousands of laws that define them, the criminaljustice system is set in motion by the discovery orreport of a possible crime.
The police are the first line of the criminal justicesystem. They may learn that a crime has beencommitted through a 9/11 call, a security alarm,officers on patrol, or any number of other ways.Once they arrive at the scene the respondingofficers will secure the area to prevent anyonefrom disturbing anything. The investigationusually includes determining whether a crime wasactually committed, gathering evidence, andtaking statements from victims and eyewitness.
Initially everybody's going to be questioned in acrime scene. Investigators want to find out howthe witnesses knew the victims, or the suspects,or anybody else involved. They want to know howwell they knew them, what the relationship is,want to know what they saw, as it relates to the incident that occurred. They also will then findout if a person was very intimately aware of whatwas going on, or has information that will helpsolve the crime. They're probably going toquestion that person more intensely.
We've seen crime shows on TV where policeofficers intimidate a suspect until it breaks downand confesses. However, if there's adequate proofof police abuse during interrogation, theconfession will be ruled inadmissible in court.
The police are not allowed to rough up a suspect.We're not allowed to intimidate someone withphysical violence, or the threat of physicalviolence. That's a coerced confession, or acoerced statement, is not going to allowable bythe court. So it does us no good to try if it doesn'tactually get us closer to catching the bad guy.
While the use of physical abuse is strictlyprohibited, police do have some leeway whenconducting an interview.
A lot of times a police also will use deception in aninterview with someone they believe is beingdishonest. An honest person being interviewedhas nothing to fear. The police are going to behonest generally with an honest person. Once weknow that person's being truthful with us, wewould like to be able to help them as much asthey're able to help us. But for those who are lyingabout what they've done or what they've seenothers do, we can use to deception. It's oftenuseful when someone, especially a suspect,begins to fear that they have left evidence behindthe scene, or that there were more witnesses thanthey and they knew existed, that there was someother clue that would point us toward them.When they begin to fear that there's some waythat they're going to be caught outside of theirconfession it begins to force them into lying tocover their tracks. And those lies often are whatgets tangled around their feet. And we're able to use that against them.
The police may ask questions to gain information,leads on other suspects, or even a confession. Butthe suspect doesn't have to answer anyquestions. Everyone has a constitutional right tosilence.
The Fifth Amendment to the United StatesConstitution was written by our Founding Fathersback in the 1700's at a time when either lawenforcement officers, or the British military, wereinterrogating suspects abusively. Various meansof pressuring or coercing confessions, sometimeswith torture. So what the Founding Fathers did isthey wrote in to the Fifth Amendment to theConstitution a protection against selfincrimination, the right to remain silent.
So when should a person being question talk?And when should they remain silent? Mostlawyers say to never talked to the police withoutan attorney present, even when innocent. Mostpeople have never been questioned by the policeand are unfamiliar with the techniques andmethods used. Meanwhile, police detectivesreceive extensive training on how to getconfessions from suspects. Police are taught touse various techniques when questioning asuspect to elicit admissions and condemninginformation.
Hey! What are you doing?
Now if the police have a reasonable suspicion thata person is involved in a crime, whether theymatch the suspect's description, or their behaviora suspicious, or it looks like they're carrying aconcealed weapon, they could pass the persondown for their own protection. And sometimes,that may lead to an arrest.
We have members of law enforcement who are onthe street that investigate crimes and have tomake decisions every day about who's going toget arrested, or who they're going to investigate.And then the next level is prosecutors, state andlocal prosecutors, who have again a separate andindependent role in deciding what's the rightthing to do. And at times we may disagree withlaw enforcement. There's case law out there thatsays a prosecutor's role is primarily the fairadministration of justice.
The courts have ruled that evidence found duringa routine frisk may be admissible against thesuspect if the officer had probable cause tobelieve the suspect might be carrying a weapon.The police investigation often includesexamination of physical evidence at the scene ofthe crime. However, if they want to look inside ahouse, they will need a search warrant, thanks tothe Fourth Amendment to the Constitution, whichprohibits unreasonable searches and seizures.That includes a car or a business.
A police officer, for example, will come to ajudicial officer and ask that you authorize them tosearch someone's house or someone's business.And whenever a judicial officer looks at thatrequest it is very important to look at– usually it'sunder the oath of the officer who is seeking it– tolook and make sure that they described alocation. And that they provided enoughinformation in there so that you believe thatthere's actually criminal activity that is going on,such that law enforcement should be allowed togo in and abate or explore that possibility.
Now, a juveniles right to be free of unreasonablesearches and seizures varies from an adults. Atschool the student's locker may be searched anytime without consent. And a parent can giveconsent to search a juveniles room at home.
There are differences in the laws regarding adultsand juveniles in criminal cases. Juveniles, exceptfor the most serious offenses, are entitled toproceedings in juvenile court, which is supposedto be more rehabilitative, and less punitive, somore focused towards treatment and counseling,as opposed to long sentences in custody.
But, even armed with a search warrant, the policecan't just break down a door. The knock andannounce rule requires officers to make theirpresence known, and state the purpose of theirarrival. An exception to the knock and announcerule is what's known as the exigentcircumstances, circumstances that demandimmediate action, like for a hot pursuit. If acriminal flees the scene of a crime and the policeofficer follows him, the officer has the right toenter a property in which the criminal has soughtshelter. And because time may also be a factor,that applies to vehicle searches. So if a person hasbeen validly but they stopped and the police haveprobable cause to believe the car containscontraband or evidence, they can search it. And ifthe police have probable cause to search the car,all compartments and packages that may containthe evidence, or contraband, are fair game.
Many officers will stop a car for various trafficreasons. And then they'll ask to search everyvehicle that they stop. And some people will allowthe officers to search. And occasionally it turns upevidence of a crime. But an officer has the right tosearch in a vehicle he has stopped when he sees,or smells drugs, or other evidence of a crime inthat vehicle. And he's allowed to search thatvehicle, right then, on scene, without a searchwarrant, or detain the vehicle long enough to seeka search warrant if there is a perhaps problemcause that he believes he'd like to search warrant to search more compartments.
While the police officer can't search a car simplybecause the car was stopped for traffic infraction,the police can order the driver and anypassengers out of the car for safetyconsiderations, even though there was nosuspicion of criminal wrong doing, other than thetraffic infraction. The police can also frisk theoccupants for weapons if the officers have areasonable suspicion that the occupants areinvolved in criminal activity, and are reasonablyconcerned for their safety. And what about yourtrash? According to the US Supreme Court, yourgarbage is fair game. Once papers, or contrabandhave been thrown into a trash receptacle it isconsidered abandoned. And anyone, includingpolice, can look through it and claim ownership.
In our country, in our criminal justice system, wehave rules that the government has to follow tomake sure that people are not abused and theirinnocence protected, while at the same timemaking sure that we keep law and order in oursociety and people are safe in their homes andproperty. So we have rules. And as a prosecutor,we understand the reality the situation is– whenwe're doing a criminal investigation, lawenforcement is– if certain rules are violated,there's penalties to pay. And if law enforcementdoesn't follow the rules, or we don't follow therules, we could lose valuable evidence that, quitefrankly, can prevent us from achieving aconviction of someone that we have a good faithbase has committed a crime. So the rules areimportant to follow. And the rules are there tomake sure that we uphold the Constitution andtreat people fairly.
When the facts and circumstances give police areasonable belief that a person has committed acrime, that person is usually taken into custodyand arrested. Probable cause is what a policeofficer needs to arrest someone. And it may arisefrom any number of different facts andcircumstances.
If I saw a man climbing out of a business window,a shattered window, see somebody crawling out,and he's carrying television with him, I think thatI've got reasonable suspicion to stop that personand investigate. And if they're not the businessowner, or an employee cleaning up from a mess, ifI can't determine they had a legitimate reason tobe there, I have probably cause to arrest them forbreaking into the store and the stealing items.
Without probable cause police need an arrestwarrant, a legal document issued by a judge ormagistrate. The warrant typically identifies thecrime committed, identifies the individualsuspected of committing a crime, specifies thelocation where the individual may be found, andgives a police officer permission to arrest theperson identified in the warrant.
That officer would go and get a criminalcomplaint and if the judge looks at it says, OK, Ibelieve there's enough evidence here to supportthis, the judge would sign off of it, issue a warrant,and then the officer could go out and arrest anindividual. And deprive them of their liberty, putthem in cuffs, take them to jail for a period of timeuntil they have a hearing.
A warrant-less arrest is one of those more specialcircumstances that if an officer is responding to acall, and actually sees a crime being committed,and it's one of those fluid situations– it could be aserious violent crime, like if an officer goes toconvenience store and there's a robbery, and theperson's running out– it's not practical for thatofficer to go call a judge and get a complaint. Thatperson needs to be taken into custodyimmediately because it could be a public threat,the threat of a flight running. So that's when theycan justify warrant-less arrest. And they can arrestyou. And then they take you quickly to a judge.And then they have to do the complaint. And it's a pretty quick process.
At every stage of the criminal process, includingarrest, police must protect the citizensconstitutional rights.
What we do really is the American Constitution inaction. It's every day, whether I'm taking a plea ofguilty from someone who's negotiated thisthrough their attorney with the state, or whether Iam presiding over a trial, it's my job to makecertain that the rights that are guaranteed tothem have been followed. And that theyunderstand, especially when their waiving thoserights, what those rights are.
If these rights are violated a court may deemarrest unlawful and order the case dismissed. Orcertain evidence maybe thrown out of the case.When the police arrest someone, a specific seriesof events follows. The police must follow legalprocedures during the actual arrest process, andall through the process of actually placing asuspect in jail.
One of the most well-known constitutionalprotections is the right to receive the MirandaWarning, a protection that comes from the fifthAmendment, and applies to both adults andjuveniles. To be given the Miranda Warning is tobe told that you have the right to remain silent,that anything you say can be used as evidence,that you have the right to an attorney, and that ifyou can't afford an attorney, one will beappointed for you.
Police are required by our courts to give a MirandaWarning. And a Miranda Warning is basicallyeducating a person under arrest as to what theirrights are. Because the courts want us to makesure that people know what the rights are beforethey wave them, like the right to remain silent.And if they wave them and talk to us, then we canuse what they say against them in court.
So you live at Renaissance Circle?
The same rules apply when the situation involvesthe questioning of a minor. However the SupremeCourt has ruled the police must take a person'sage into account when determining whether thecircumstances of the case merit a Mirandanotification. In many states, when police take ajuvenile, that as a person under the age of 18, intocustody for interrogation there are sometimesadditional safeguards. Some states will require, atleast for very young children, that a parent bepresent, or a lawyer be present. So there areadditional safeguards in most states, in mostjurisdictions, when juveniles are involved.
You understand that you are under arrest rightnow for breaking and entering, you understandthat?
The Miranda Warning must be given when thesuspect is in custody. In other words, when he orshe is a arrested, in handcuffs, or otherwise notfree to leave. To decide whether police haveplaced a person in custody courts will examinethe facts to determine if a reasonable personwould have felt they could leave this situation orinterrogation. When the questioning is forbackground and information only, without factorsindicating the person is under arrest, suchquestioning can take place without the prioradvisement of Miranda.
Someone is detained or in custody if they arebeing stopped by the police, and maybe just forinvestigative purposes, or like a traffic violation,something to that effect. But they're only underarrest once the officer has developed probablecause that the person has committed a crime forwhich they are going to be immediately charged.Or if a person is stopped, pursuant to an arrestwarrant, where they've already been charged andthe officer's stopping to take them before a judge,or take them to jail. Detention occurs very often. Itcould just be for someone's suspicious behavior,while the officer determines whether or notthere's a criminal act occurring. Or if theymatched the description of a suspect who has fledfrom the scene of the crime, they may be detainedlong enough to determine whether or not theywere truly involved in that incident, or if they arethe suspect for which we were looking. Butthey're not under arrest at that time.
During the booking process the police will last forbasic information, such as address and birth date.Fingerprints and photographs are also taken.Police may ask for a blood sample, or evenstrands of hair, both for DNA testing. Thisevidence is then used to match evidence left atthe crime scene.
DNA is, of course, present in most all of our cells.There are certain cells that as they mature, theylose certain types of DNA. But for the most part,every cell within our body, we have the same DNAthat we inherited from our mom and from ourdad. So we can use that DNA to identify anindividual. And so what we would like to do isobtain the sample from the crime scene, againmaintain a chain of custody with that sample, Andthen when we get it to the laboratory, we removethe DNA from the host cell in which it resides.Then we take and purify the DNA and analyze it.We use very sophisticated equipment to do thisanalysis. But at the end of the process wedetermine a DNA profile. The DNA a profileborders on being unique. We use statistics thatthe chance of a random individual having thatvery same DNA a profile is one in quadrillions, orone in trillions. So it's a very unique identifier forthis type evidence.
The suspect may also be asked to participate in apolice lineup.
Misidentification is a real problem. And so wedeveloped some rules to deal with that. The onethat's most effective, is that if the criminal processhas begun– that means that the suspect, thearrestee has been taken before a judge ormagistrate to be arraigned, or what we call theinitial appearance– and then the identificationprocess comes after that. Then they are entitledto a lawyer.
For evidence from a line up to be admissible incourt the lineup, itself, must be conducted fairly.The police may not say or do anything thatpersuades the witness to identify the suspect thatthey prefer. This includes loading the lineup withpeople who look very dissimilar to the suspect.Once the arrest is made, the prosecutor has only ashort time to decide what formal charges to bringagainst the suspect. An arraignment is then held,which is the first phase of a criminal case afterarrest. That is where a suspect sees a judge, and isread the charges. Legal injunctions, likerestraining orders, are issued at that time. Andother applications to the court are made.
After a person is charged with a crime then it isvery important that they are taken before ajudicial officer. It should be without anyunreasonable delay. And that's very important.Because oftentimes judicial judges, such asmyself, are asked to consider not allowing aconfession to be heard by a jury. Because lawenforcement has had someone in custody, afteran arrest and have not taken them before ajudicial officer, who will then read them theirwrites, advise them of their right to counsel,explain the charges to them, and explain how theprocedures will go forward.
After the arraignment, the suspect may bereleased on a promise to appear in court, or thesuspect may be sent to jail. If released, the judgemay set bail, which is money you pay to the courtin order to ensure that you will appear in courtwhen told to do so.
The personal recognizance bond is simply apromised to appear and the threat of a penalty beimposed, or a steep fine being imposed, or bondbeing imposed, after the fact, if the person fails toappear. So it often hinges on the seriousness ofthe offense, the likelihood that the person willcomply with the conditions of bond. That is, obeylaw and appear in court, as required.
If you do appear, as required, the bail will berefunded to you. If you do not show up, the courtkeeps the money, and can issue a warrant for yourarrest.
Understanding all the ways in which the criminaljustice system operates is sometimes difficult. It isa large and far reaching segment of American life.However, laws, investigations, evidence, warrants,Miranda warnings, they are all part of a process toensure that the criminal justice system is fair andbalanced.
The quality of life of our community is not onlyprosecuting crime and keeping crime down. Butit's also making sure that we have a communitywhere people are treated fairly. And people, ifthey are being investigated, or if they're beingaccused of doing something wrong, they wouldhave the confidence of knowing that they'll betreated fairly. And there will be a professionalprocess reviewing it.
From constitutional laws to state and localstatutes, from search warrants to arrest warrants,the system carefully balances the rights of theaccused with the rights of the victims, as well asthe safety of individual citizens. In an ideal world,legal authority would never have to be exercised.However, the threat of its use is a foundation ofany law abiding society.