Controlling Police Behavior: The Law of Search & Seizure

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Controlling Police Behavior The Law of Search
Seizure

• PSCI 2481

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Controlling Police Behavior An Introduction

• Police officers are required to perform in ways
  that conform to the US Constitution, legislative
  statutes (Congressional and State) and court
  interpretations of both.
• Three police practices arrest, search seizure
  and interrogation are especially structured to
  ensure that the rights of citizens are protected.
• 4th Amendment prohibits unreasonable search
  seizure
• 5th Amendment protects citizens from
  self-incrimination
• 6th Amendment provides a right to counsel
• Police must not soil its hands by profiting from
  its own abuses of the law. Court rules are
  designed to deter police from acting improperly
  by excluding any evidence they collect if they do
  so.

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The 4th Amendment

• 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.

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The 5th Amendment

• No person shall be held to answer for a capital,
  or otherwise infamous crime, unless on a
  presentment or indictment of a Grand Jury, except
  nor shall any person be subject for the same
  offence to be twice put in jeopardy of life or
  limb nor shall be compelled in any criminal case
  to be a witness against himself, nor be deprived
  of life, liberty, or property, without due
  process of law nor shall private property be
  taken for public use, without just compensation.

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The 6th Amendment

• In all criminal prosecutions, the accused shall
  enjoy the right to a speedy and public trial, by
  an impartial jury of the State and district
  wherein the crime shall have been committed,
  which district shall have been previously
  ascertained by law, and to be informed of the
  nature and cause of the accusation to be
  confronted with the witnesses against him to
  have compulsory process for obtaining witnesses
  in his favor, and to have the Assistance of
  Counsel for his defense.

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The Law of SEARCH SEIZURE

• Arrest Warrants are not required. Search
  Warrants usually are.
• The prevailing rule is that searches and seizures
  are reasonable only if conducted under a
  judicially issued warrant. Warrantless searches
  are per se unreasonable.
• Judges issue warrants only when presented with
  evidence of probable cause, supported by
  testimony under sworn oath or affirmation, that a
  crime has been committed and a specific
  individual and place are associated with that
  crime. This testimony and the warrant issued
  must describe the place to be searched, and the
  persons or things to be seized.

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The Law of SEARCH SEIZURE

• The common exceptions
• Consent
• Search pursuant to a lawful arrest
• Within plain view (Open fields)
• Hot Pursuit
• The Automobile exception
• Other exceptions
• Closely regulated industries
• Frisks
• Customs
• Immigration
• Private citizen intrusion

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Recent Change in Search Seizure Law Hudson v.
Michigan (2006)

• Detroit police officers had a warrant to search
  for drugs and firearms in the home of Booker
  Hudson. They called out their presence and, after
  three to five seconds, entered through an
  unlocked front door.
• Hudsons lawyers tried unsuccessfully to suppress
  the evidence (rock cocaine) that police found
  and Hudson was subsequently convicted of drug
  possession. In his appeal, he argued that unless
  tainted evidence is suppressed, police will not
  be deterred from barging into homes without
  cause.
• In making this argument, Hudson relied on a rule
  based on a centuries-old idea of home privacy and
  the Fourth Amendment protection against
  unreasonable searches. It requires police to
  knock, announce themselves and wait a
  "reasonable" time, which justices noted can be
  about 20 seconds, before entering.

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Recent Change in Search Seizure Law Hudson v.
Michigan (2006)

• The U.S. Supreme Court disagreed.
• Their 5-4 decision found the exclusionary rule
  need not apply. The decision also offers a sign
  that the court might be more apt to strengthen
  the hand of police with Justice Samuel Alito in
  the place of retired justice Sandra Day O'Connor.

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At The Supreme Court

• Justice O'Connor, who was on the court when the
  case was first argued in January 2006, was
  sympathetic to Hudsons arguments and had worried
  about "the sanctity of the home." But she retired
  before the Court announced a decision. The eight
  remaining justices were deadlocked.
• The case was re-argued in May 2006 with Alito on
  the court. His vote gave produced a majority with
  Chief Justice John Roberts and Justices Antonin
  Scalia, Clarence Thomas and Anthony Kennedy.
• Justice Scalia's majority opinion emphasized that
  tossing out evidence acquired in violation of the
  knock-and-announce rule but with a valid
  warrant could mean "releasing dangerous
  criminals. "Resort to the massive remedy of
  suppression of evidence of guilt is unjustified,"
  Scalia wrote.

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The dissenters

• In his dissent, Justice Stephen Breyer called the
  decision "doubly troubling.
• "It represents a significant departure from the
  court's precedents," he wrote. "It weakens,
  perhaps destroys, much of the practical value of
  the Constitution's knock-and-announce
  protection."
• Breyer was joined by John Paul Stevens, David
  Souter and Ruth Bader Ginsburg.

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Charles A. ReichPolice Questioning of
Law-Abiding Citizens

• The Debate
• 1. Police have a right to stop anyone vs.
  Citizens have a right not to be stopped.
• 2. What questions can police ask?
• 3. What questions must citizens answer?
• 4. What actions can the officer take if the
  citizen refuses to answer?
• 5. What can the citizen do in response to officer
  actions?

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Reichs Solutions

• Police must have a reason to believe an
  individual has committed a crime.
• The officer must identify himself and explain why
  he stopped the citizen.
• A person may be questioned but not required to
  answer
• A person may be asked for ID but not required to
  produce it.
• The officer must treat the citizen as an equal.
• The officer may search a citizen only if (a) he
  believes himself to be in danger or (b) he has
  probable cause
• The officer may not detain a citizen who wishes
  to leave unless he has probable cause for
  arrest.

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The Court Rulings

• Terry v. Ohio (1968)
• Pennsylvania v Simms (1977)
• Brown v Texas (1979)
• US v Hensley
• Delaware v. Prouse
• Chavez v. Martinez (2003)
• Hiibel v. 6th Judicial District Court (2004)

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Terry v. Ohio

• Officer McFadden (w 49 years of experience in
  plainclothes) is in downtown Cleveland and
  observes 2 men (Terry Chilton) who make 12
  trips back and forth past a store window. In
  court he testifies They didnt look right to
  me.
• McFadden followed, stopped and patted down both
  suspects and a third person they meet. He finds
  and removes guns as a result of the frisk. He
  then arrests the men for carrying illegally
  concealed weapons.
• Q Does probable cause exist for an arrest? Did
  it exist before the pat down?

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Terry v. Ohio II

• The Ohio Trial Court says NO, But
• No probable cause exists initially but the
  officers action to stop and frisk the suspects
  is necessary to protect the police officer. The
  Court insists that it is important to distinguish
  between a frisk and a full search and between
  a stop for investigatory purposes and an
  arrest
• The US Supreme Court takes the case on appeal to
  answer the question Is stop frisk a minor
  inconvenience which can be properly imposed on a
  citizen in the interests of effective law
  enforcement?

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Terry v. Ohio III

• CJ Earl Warren for the Court
• Decision for the police officer
• There must be a narrowly drawn authority to
  permit a reasonable search for a weapon for the
  protection of the police officer where he has
  reason to believe that he is dealing with an
  armed and dangerous individual regardless of
  whether he has probable cause to arrest the
  individual for a crime.
• Justice Douglas in dissent
• The constitutional requirement of probable
  cause is not the same thing as reasonable
  suspicion. The officer had no basis for
  believing Terry was carrying a concealed weapon.

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Brown v. Texas

• El Paso, Texas
• A patrol car containing officers Venegas Sotelo
  pass 2 men walking in opposite directions.
• The officers stop one of the men (Brown) because
• the situation looked suspicious
• The citizen had not been seen in this area before
• The area was a high drug trafficking neighborhood
• Officers later admitted that
• They did not suspect specific misconduct
• They did not have any reason to believe the
  citizens was armed.

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Brown v. Texas II

• What happened?
• The officers asked the suspect to identify
  himself and explain what he was doing in the
  neighborhood.
• The suspect refused and asserted that the
  officers had no right to stop him.
• Officers frisked the suspect and involved him it
  was a high crime area.
• After a 2nd refusal to identify himself, the
  suspect was arrested under the Texas Penal Code
  that defined the refusal to give a name and
  address to a police officer who had lawfully
  stopped a citizen to be a criminal act.

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Brown v. Texas III

• The legal questions Did the officers lawfully
  stop the suspect? Is Texas law contrary to the
  US Constitution?
• The US Supreme Court in an opinion authored by CJ
  Warren Burger again attempted to define
  reasonableness requirement of the 4th Amendment.
• The individuals right to personal security must
  be free from arbitrary interference by law
  officers.
• Seizures must be based on specific objective
  facts.

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Crime File Search Seizure

• Mike Ferrell Ed Sperlock James McComas
• US Attorney Police Officer Defense Atty
• Scenario 1.
• Traffic Stop
• Episode 1 NO w/qual YES NO
• No License Plate
• Episode 2 YES YES YES
• Shells in Briefcase
• Episode 3 YES YES YES
• Trunk Search

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Crime File Search Seizure

• Mike Ferrell Ed Sperlock James McComas
• US Attorney Police Officer Defense Atty
• Scenario 2.
• Suspicious Persons
• in Neighborhood
• Episode 1 NO NO NO
• Black Men in Alley
• Episode 2 NO NO NO
• Report of Burglary
• Episode 3 YES YES NO
• Briefcase Search

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Crime File Search Seizure

• Mike Ferrell Ed Sperlock James McComas
• US Attorney Police Officer Defense Atty
• Scenario 3.
• The Domestic Dispute
• Episode 1 YES YES NO
• Invited In by Woman
• Episode 2 YES YES, but
  NO
• Coat/Bedroom Search

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Hiibel v. 6th Judicial District Court

• Police officer arrived at the scene of Larry
  Hiibels truck parked at the side of a road in
  Nevada.
• The officer asks Hiibel for his ID.
• Hiibel refuses, insisting he has done nothing
  wrong, and asks to be left alone.
• Ultimately Hiibel is arrested for failure ot
  identify himself to an officer conducting an
  investigation.

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Hiibel v. 6th Judicial District Court

• Justice Kennedy writing for the Court
• Obtaining a suspects name in the course of a
  Terry stop serves important government
  interests.
• Justice Stevens in dissent insisted that Hiibel
  acted well within his rights when he opted to
  stand mute
• Liberals and libertarians were quick to condemn
  the ruling.
• The government can turn silence into a criminal
  offense.
• Ordinary Americans will be hopelessly confused
  about when they can assert their right to
  remain silent without being jailed.

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What do all of these cases (Terry v. Ohio, Brown
v. Texas, Hiibel v. 6th JD) represent?

• Attempts by the court system to provide guidance
  to police as to what is appropriate behavior.
• Absent court system involvement, who polices the
  police?

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THE ACLU Response

• What should YOU do if stopped by a police office?
• The ACLU answer