Criminal Justice

1. © 2014 by Pearson Higher Education, Inc
Upper Saddle River, New Jersey 07458 • All Rights Reserved
Chapter 5
Policing:
Legal Aspects
Scott Moller, JD
Introduction to Administration of Justice

2. © 2014 by Pearson Higher Education, Inc
Upper Saddle River, New Jersey 07458 • All Rights Reserved
5.1
5.2
5.3
5.4
Describe the circumstances under which police officers may
search and seize property legally.
Explain how the Bill of Rights and democratically inspired legal
restraints help protect our personal freedoms.
Describe legal restraints on police action and instances of
police abuse of power.
Define arrest, and describe how popular depictions of the
arrest process may not be consistent with the legal term.
CHAPTER OBJECTIVES
5.5 Describe the intelligence function, including the roles of police
interrogation and the Miranda warning.

3. Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes
5.1
Describe legal restraints on police
action and instances of police
abuse of power.

4. Abuses of Police Power5.1
4
1991 – Rodney King – car chase, LAPD
beating – video (1:32); officers
exonerated in criminal court, retried in
federal court (civil rights), civil lawsuits.
CNN Obituary
2005 – Robert Davis – 64-yr old man
beaten by New Orleans police. Video
(2:00)
2006 – Sean Bell leaving bar, argued
with patron, said to get his gun;
undercover NYPD officer tried to stop
him, Bell’s car hit officer, 3 officers fired
50 shots, Bell killed. Officers exonerated
in court trial, but fired. Verdict/analysis
video (10:22)
Officer interview video (4:43)
Robert Davis

5. A Changing Legal Climate
5
• 1788, 1791, 1868 – US Constitution, Bill of Rights, 14th Am.
– System of checks and balances between executive,
legislative and judicial branches
– Designed to protect citizens against abuses of power
• 1700s-1960 – Policing was informal; ignored Constitution
• 1960s – US Supreme Court – “Warren” Court enforced
constitutional rights, changed law enforcement
– Chief Justice Earl Warren – liberal judicial activist
– Used 14th Am. Due Process to promote individual rights
– Strict procedural requirements upon law enforcement
– Miranda v. Arizona (1966)
5.1
•1970-Present – Since the Warren Court,
the USSC has grown more conservative
–Pendulum has been swinging to public
safety

6. Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes
5.2
Explain how the Bill of Rights and
democratically inspired legal
restraints help protect our personal
freedoms.

7. Constitutional Restraints on Police Power5.2
7
1788 Constitution had only 4 provisions relating to crime:
1. Habeas Corpus – “you have the body”
2. Ex post facto laws – “after the fact”
3. Right to trial by jury in state where crime committed
4. Treason - the only crime listed in the Constitution
1791 Bill of Rights added major protections for criminal defendants
• 4th Am. – search & seizure, warrant requirements
• 5th Am. – right against compelled self-incrimination and double
jeopardy; right to a grand jury and due process (fairness)
• 6th Am. – speedy & public trial, in district of crime, notice of
charges, right of confrontation, compulsory process, right to atty
• 8th Am. – no excessive bail or fines, no cruel & unusual punishment
1868 14th Amendment – designed to undo slavery, used for much more
1. Citizenship clause
2. Privileges & immunities clause
3. Due process clause
4. Equal protection clause

8. © 2014 by Pearson Higher Education, Inc
Upper Saddle River, New Jersey 07458 • All Rights Reserved
Constitutional Amendments
8
5.1
Bill of Rights. This criminal right granted by: Amendment
Right against unreasonable search and seizure 4th
Right against arrest without probable cause 4th
Right against self-incrimination 5th
Right against “double jeopardy” 5th
Right to due process of law 5th, 6th, 14th
Right to a speedy trial 6th
Right to a jury trial 6th
Right to know the charges 6th
Right to cross-examine witnesses 6th
Right to a lawyer 6th
Right to compel witnesses on one’s behalf 6th
Right to reasonable bail 8th
The right against excessive fines 8th
The right against cruel and unusual punishments 8th
Applying rights to all citizens, regardless of state law 14th

9. The Fourth Amendment: 2 Clauses5.2
9
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 touchstone of the Fourth Amendment is reasonableness.” Chief
Justice William Rehnquist, Ohio v. Robinette (1996) (emphasis added)
1. THE SEARCHES & SEIZURES CLAUSE
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
2. THE WARRANT CLAUSE
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.

10. Early Policing: What 4th Amendment?5.2
10
NYPD officer Alexander “Clubber”
Williams (1839-1917) provides an
example of informal “Political Era”
policing. Colorful yet controversial, he
was effective in combatting street
gangs but his informal methods
included brutality, corruption, and
contempt for the courts.
His methods were eventually rejected.
The Reform Era of policing that followed,
along with Supreme Court rulings, made
policing more formal, professional and
respectful of constitutional rights.
“There is more law
at the end of the
policeman’s
nightstick than in all
the decisions of the
Supreme Court.”
Alexander Williams

11. The Warren Court: Nationalization5.2
11
Warren Court (1953-1969) – Chief Justice Earl Warren
The liberal, activist Warren court scrutinized the US criminal justice system
to promote individual rights, using the 14th Am. to extend federal
constitutional protections to state courts – a process known as the
“nationalization” of the Bill of Rights.
Subsequent, more conservative courts: Burger (1969-86), Rehnquist
(1986-2005) and Roberts (2005-Present) have chipped away at those
protections and tended to rule more in favor of public security.

12. Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes
5.3
Describe circumstances under
which police officers may conduct
searches or seize property legally.

13. How courts make law5.3
13
• The Constitution usually speaks in general terms.
• Since Marbury v Madison (1803), the US Supreme Court
has claimed the sole authority to interpret the
Constitution, via its decisions in cases brought before it.
• When the USSC accepts a case for review, it issues a writ
of certiorari, which orders the lower court to produce the
records of the case for review, and the USSC reviews the
case and renders a decision.
• The USSC sometimes renders a landmark decision with far-
reaching effects for our criminal justice system and
society.
Landmark case – A precedent-setting court decision that
clarifies or changes the “rules of the game” and changes
the law and practical day-to-day operations of the system.

14. 14
Landmark Cases: Exclusionary Rule5.3
Case Rule
Weeks v US (1914) Exclusionary Rule invented
Silverthorne Lumber Co. v
US (1920)
Fruit of the Poisonous Tree - derivative
evidence is excluded
US v Rabinowitz (1950) Search Incident to Arrest (SIA) is deemed
“reasonable” for officer safety
Mapp v Ohio (1961) Exclusionary Rule applied to the states video
(11:11)
Katz v US (1967) 4th Am. protects privacy, not places
Chimel v California (1969) SIA may include the lunge area only
Minnesota v Olson (1990) Overnight guests have REP and are
protected from warrantless searches
Georgia v Randolph
(2006)
Consent of one co-tenant does not allow
search if other present co-tenant objects
Fernandez v California
(2014)
Consent of one co-tenant may suffice after
objecting co-tenant leaves

15. 15
Good Faith Exceptions5.3
Case Good Faith Exception applies to:
US v Leon (1984) Good Faith Exception to the Exclusionary
Rule created
Massachusetts v Sheppard
(1984)
Judge assured police erroneous warrant
was valid
Illinois v Krull (1987) Arrest statute later ruled unconstitutional
Illinois v Rodriguez (1990) Victim with apparent authority (key)
consented to entry to dwelling
Arizona v Evans (1995) Computer records out of date/erroneous
Davis v US (2011) Search based on precedential case that
was subsequently overturned
Herring v US (2009) Error of “isolated negligence,” not systemic
Since the Exclusionary Rule exists to teach law enforcement
to abide by the Constitution, evidence mistakenly seized in
violation but in good faith may still be admitted in court.

16. Stop (Seizure) & Frisk (Search)
Terry v. Ohio (1968) – Officer without probable cause to
arrest approaches men he believes are casing a store, asks
their names, pats down outside of clothing, finds a gun
Rule: Officer with reasonable and articulable suspicion that
a crime has been committed or is about to be committed
may conduct an investigative stop and frisk for weapons
• This is an objective test
• Courts consider the totality of the circumstances, in
light of the officer’s training and experience
5.3
Probable Cause – a fair probability that
evidence of a crime will be found
Reasonable Suspicion – a minimal level of
objective justification for a stop

17. 17
Plain View Doctrine5.3
Case Rule
Harris v US (1968) Plain view doctrine established
Arizona v Hicks (1987) Item’s incriminatory character must be
immediately apparent
Horton v California (1990) Inadvertence is no longer necessary
Minnesota v Dickerson (1993) Plain feel must be apparent – no
manipulation
Kyllo v US (2001) Item visible only via device not in general
public use requires a search warrant
Evidence visible to the police in plain
view may be seized without a warrant if
the police have a legal right to be in the
viewing area and cause to believe the
item is contraband or evidence
associated with criminal activity.

18. 18
Exigent Circumstances/Emergency5.3
Case Rule
Warden v Hayden (1967) Emergency exception to warrant
requirement
Wilson v Arkansas (1995) Knock and announce rule outlined
Richards v Wisconsin (1997) No blanket authority for no-knock
authorization in drug cases. Police must
prove exigent circumstance case-by-case
Brigham City v Stuart (2006) Police may enter home without warrant, to
treat or prevent serious injury
Police may warrantlessly act to address emergencies.
FBI justifies emergency warrantless action for:
1. Danger to life
2. Risk of escape
3. Risk of removal or destruction of evidence

19. Search and Seizure: Landmark Cases
Executing Search Warrants5.3
Case Rule
Maryland v Buie (1990) Protective sweep doctrine allows police to
search for people hiding while serving arrest
warrant
Illinois v MacArthur (2001) Police may prevent occupant from entering
home while executing search warrant
Muehler v Mena (2005) Police may detain occupants while
executing search warrant
Hudson v Michigan (2006) No suppression for violation of no-knock
US v Grubbs (2006) Anticipatory warrants are valid
Police have to follow rules in executing arrest warrants and
search warrants. If the police fail to follow the rules, the
items seized could be suppressed.

20. Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes
5.4
Define arrest, and describe how
popular depictions of the arrest
process may not be consistent with
legal understandings of the term.

21. Arrest is the act of taking one into custody, by authority of law. One is
“seized” for purposes of the 4th Am. when his/her freedom to leave is
restricted. Many states only allow misdemeanor warrantless arrest for
crime committed in presence of an officer.
Arrest defined; landmark cases5.4
Case Rule
US v Robinson (1973) Police may search incident to arrest
Payton v New York (1980) Barring consent or exigent
circumstances, officer may not enter
residence to make a warrantless arrest
US v Mendenhall (1980) “Free to leave” test
Atwater v Lago Vista (2001) Arrest for seat belt violation upheld
Yarborough v Alvarado (2004) 17-year old who confessed to murder
while in police station was not in
custody, as police had made it clear he
was free to leave

22. 22
Terry Stop, Search Incident to Arrest5.4
Case Rule
Terry v Ohio (1968) Police with reasonable suspicion may stop
and frisk a suspect
US v Robinson (1973) Arresting officer may search suspect and
immediate “lunge” area incident to arrest
US v Sokolow (1989) Stop to be assessed based on totality of
the circumstances
California v Hodari D (1991) A fleeing suspect is not in custody
Illinois v Wardlow (2000) Unprovoked flight can support reasonable
suspicion to stop a suspect
• Police may stop and frisk based on
reasonable suspicion.
• Police may lawfully search an
arrestee and the area under his/her
immediate control for officer safety.

23. Searches of Persons5.4
FBI guidelines for conducting emergency warrantless
searches of persons:
1. There was probable cause at the time of the search to
believe that evidence was concealed
2. There was probable cause to believe an emergency
threat of destruction of evidence existed
3. The officer had no prior opportunity to obtain a
warrant; and
4. Action was no greater than necessary
Case Rule
US v Montoya de
Hernandez (1985)
Alimentary canal drug smuggler may be
detained until reasonable suspicion is alleviated
Winston v Lee (1985) Police may not order surgery to retrieve bullet
from non-consenting suspect’s chest

24. 24
Vehicle Searches5.4
Case Rule
Carroll v US (1925) Warrantless search of vehicle based on
reasonable suspicion of contraband is valid
South Dakota v
Opperman (1976)
Warrantless inventory search of vehicle is
reasonable
Whren v US (1996) Pretextual stop based on traffic offense is valid
Wyoming v Houghton
(1999)
Police may inspect passengers’ belongings
(passengers may challenge)
Arizona v Gant (2009) Search incident to arrest of vehicle only
allowable if suspect can access vehicle, or to
search for evidence of crime of arrest
Vehicles receive less protection from searches because they are:
1. Highly mobile – can leave jurisdiction before a warrant can be
obtained
2. Highly regulated – subject to licensure, registration and inspection,
resulting in a lessened expectation of privacy

25. Roadblocks, Checkpoints, Other Vehicles5.4
Case Rule
US v Martinez-Fuerte (1976) Suspicionless border checks upheld as
necessitated by heavy traffic
Michigan Dept. of State
Police v Sitz (1990)
DUI sobriety checkpoints upheld as
intended to protect public safety
Illinois v Lidster (2004) Information-seeking roadblocks upheld as
seeking public’s voluntary cooperation to
solve crime
US v Villamonte-Marquez
(1983)
Watercraft included as vehicles
California v Carney (1985) Motorhomes included as vehicles
US v Hill (1988) Houseboats included as vehicles
In some circumstances, the US Supreme Court has allowed
police to detain persons without probable cause.
This table also addresses broadened vehicle definitions.

26. Suspicionless Searches
26
Where the government demonstrates a
compelling interest in public safety that
outweighs any rights to individual privacy,
the US Supreme Court has held that a
search may be conducted without a
warrant and without suspicion.
5.4
Case Rule
National Treasury Employees Union
v Von Raab (1989)
Mandatory drug testing upheld for
US Customs drug interdiction
workers carrying firearms
Skinner v Railway Labor Executives’
Association (1989)
Mandatory drug/alcohol testing for
railway crews following serious train
accidents
Florida v Bostick (1995) Warrantless consent searches of
baggage on city buses okay

27. Learning Objectives
After this lecture, you should be able to complete the following Learning Outcomes
5.5
Describe the intelligence function,
including the roles of police
interrogation and the Miranda
warning.

28. The Intelligence Function: Informants5.5
Police question suspects, witnesses and informants as part of
their investigations.
In Aguilar v. Texas (1964), the US Supreme Court set forth a 2-
pronged test for probable cause based on informant
testimony:
1. Source of informant’s information is made clear
2. Officer reasonably believes informant is reliable
Case Rule
US v Harris (1971) Informant’s self-incriminating statements
deemed reliable
Illinois v Gates (1983) Totality of the circumstances test supplants
Aguilar test
Alabama v White (1990) Anonymous tip of predictive behavior can
support investigative stop
Florida v JL (2000) Anonymous tip that person has a gun is NOT
sufficient for investigative stop

29. Interrogation: Landmark Cases5.5
Case Rule
Brown v Mississippi (1936) No physical abuse
New York v Quarles (1984) Public safety exception to Miranda
Fulminante v Arizona (1991) No psychological manipulation
Davis v US (1994) Request for attorney must be
unequivocal
Interrogation is the information-gathering
activity of police that involves direct
questioning of suspects and other witnesses.
“The entire aura and atmosphere of police interrogation
without the notification of rights and an offer of assistance
of counsel tends to subjugate the individual to the will of his
examiner.” Miranda v Arizona (1966)
The Wire Video (3:32)

30. Interrogation
30
5.5
Case Rule
Escobedo v. Illinois (1964) Right to attorney during interrogation
Miranda v Arizona (1966) Suspect must be advised of rights
Edwards v. Arizona (1981) Once attorney is requested, all
questioning must cease
US v Patane (2004) No Miranda warnings are needed to
obtain non-testimonial evidence
Moran v Burbine (1986) Intelligent and knowing waiver defined
Nix v Williams (1984) Inevitable discovery exception to
Miranda
There are two triggers that must both
be present to make the advisement
of Miranda rights necessary:
1. Custody
2. Interrogation

31. Miranda rights5.5

32. 32
Knowing Intelligent
Voluntary
Waiver of
Miranda
Waiver of Miranda Rights
5.5

33. Motion to Suppress State v.
DE of Officer
Name, occ, how long, on duty on/at a.m./p.m.?
Assist with investigation of ?
What you do? ( reason for stop, investigation) 901.04 Preliminary Questions
Encounter [Defendant’s name] [_] ID
Where incident occur? [_] Venue
Conversation w/D? Conv w/others? 1
Where you speak? (Describe layout) How long conversation take? Who present?
You advise D of Miranda rights before speaking w/her? Why not? (no custody or arrest)
D in custody? Handcuffs? You in uniform?
You tell D this voluntary interview? Not under arrest? Not have to talk to you? Could leave any time?
D say he understood? D agree to talk to you voluntarily?
What happened after conv? (D not taken into custody)
Closing
D moves to suppress. 4th
Am proscribes only unreas searches and seizures. Police actions in this case were
reas. This was not interrogation, it was simply Terry stop investigation.
As to resisting, this was a lawful arrest, but even if it were an unlawful arrest, the D would have no “right” to
resist, per State v. Hobson, 577 N.W.2d 825 (“there should be no right to forcibly resist an unlawful arrest in
the absence of unreasonable force,” at 837.
PC to stop - Terry Stop – A reasonable, articulable suspicion of criminality allows stop.
PC to arrest is quantum of evid which would lead reas O to believe D probably committed crime. NOT prove guilt beyond reas
doubt, NOT prove guilt more prob than not; only nec that info lead reas O to believe guilt is more than a possibility
PC to search exists where sufficient facts to excite an honest belief in a reas mind that the objects sought are linked with the
commission of a crime and will be found in the place to be searched. This is a common sense measure of the plausibility of
particular conclusions about human behavior.
I. Lay general setting for Miranda/Goodchild facts:
· Time of arrest (custody)
· Time statement given (interrogation)
· Place of arrest (custody)
· Place where D gave stmt
· Physical layout of place of stmt
· People present during stmt
II. Miranda Hearing
A. Establish Miranda rights were advised as follows:
· Right to remain silent
· Any statements will be used against D in court
· Right to have attorney present
· Right to have attorney provided if D can’t afford one
· Right to answer some Qs and refuse to answer others
· If D desires, interrogation will cease entirely
Read rights to D, watch D initial
[_] OFFER RIGHTS FORM INTO EVIDENCE
1
Others’ statements are not hearsay because they were not offered “to prove the truth of the matter asserted,” as defined in
§908.01(3), Wis. Stat., but were instead offered to reveal the totality of the circumstances known to the officer when he made his
decision to arrest – the central inquiry of this hearing. It is well settled that an officer’s probable cause determination may rely in
part on hearsay. State v. Koch, 175 Wis. 2d 684, 701, 499 N.W.2d 152, cert. denied, 114 S. Ct. 221 (1993). Moreover, aside from
issues involving privilege, the Wisconsin Rules of Evidence do not apply at a suppression hearing, where the Court is being asked to
rule on the admissibility of evidence.See §§ 911.01(4)(a) and 901.04(1), Wis. Stat.
This is the form
I use to question
officers for a Miranda
Motion to Suppress
hearing
Suppression5.5

34. The Electronic Communications Privacy Act
34
The Electronic Communications Privacy Act of 1996
established the due-process requirements that law
enforcement officers must meet in order to legally intercept
wire communications
• Wiretaps and bugs
• Pen registers record numbers dialed from a phone
• Tracing devices determine the number from which a
call emanates
5.5
Case Rule
US v Scott (1978) Minimization: restrict surveillance to criminal acts
being investigated

35. © 2014 by Pearson Higher Education, Inc
Upper Saddle River, New Jersey 07458 • All Rights Reserved
5.1
5.2
5.3
5.4
The Fourth Amendment to the Constitution specifically prohibits
unreasonable searches.
The Bill of Rights was designed to protect the people from
governmental abuse.
Legal restraints on police actions stem primarily from the Bill of
Rights of the U.S. Constitution.
An arrest takes place when a law enforcement officer restricts a
person’s freedom to leave.
CHAPTER SUMMARY
When suspects who are in custody are subject to interrogation
they must be read their Miranda rights.5.5