PART 2CHAPTER 7:

Police and the Law

CJUS • Myers, Myers and Samaha

Learning Outcomes

LO1 Understand what an arrest is and when an arrest is reasonableLO2 Explain when searches can be made without a warrantLO3 Understand the exclusionary rule and the situations in

which it appliesLO4 Explain the Miranda v. Arizona decision and how the

Miranda warnings are usedLO5 Describe how the USA Patriot Act of 2001 changed the guidelines for electronic surveillance of suspected terroristsLO6 Understand the objective standard of reasonable forceLO7 Explain what constitutes excessive force and describe

deadly and nondeadly forceLO7 Explain police corruption

• Arrest: taking an individual into custody without her consent

• Reasonable Arrest requires: – Probable cause. Officers must have an objective

basis for an arrest. – Reasonable force. Officers cannot use excessive

force to make an arrest.– Warrant. Officers have to get a warrant before they

enter a house to arrest someone.

• Probable cause to arrest means there are enough facts for a reasonable officer in light of her expertise to believe the person she is arresting has committed, is committing, or is about to commit a crime.

Table 7.1

Arrest Warrants:

• The majority of arrests are reasonable without warrants, with one exception: police cannot enter a home to arrest a suspect without a warrant.

• According to the U.S. Supreme Court, entering homes is the “chief evil” the Fourth Amendment protects against.

Searches without Warrants:

• The Fourth Amendment bans only unreasonable searches. What constitutes a reasonable expectation of privacy is left to the courts to decide on a case-by-case basis. According to the Court, none of the following actions is a search, so the decision to undertake them is left to the discretion of individual law enforcement officers: – Looking for evidence in plain view – Obtaining bank records, including savings and

checking accounts and loans– Getting a list of all numbers dialed from or to a

specific telephone – Looking through trash for criminal evidence– Wiring a paid informant for sound so that law

enforcement officers can listen to conversations

• According to the plain-view doctrine, it is not considered a search if officers’ discovery of evidence meets three conditions:

1. Officers discover the evidence by means of their ordinary senses—sight, smell, hearing, and touch.

2. Officers have a right to be where they are and are doing what they have a right to do.

3. Officers discover the evidence inadvertently.

Reasonable Searches

• In the everyday work of police officers, a search is reasonable if the officers:– Have probable cause – Get a warrant backed up with probable

cause before they search a house – Conduct the search at the time they arrest

a suspect– Get consent to search if they do not have

probable cause – The vast majority of searches are

conducted at the time of arrest or with consent, meaning that most searches are made without warrants.

The Exclusionary Rule

• The exclusionary rule throws out “good” evidence because of “bad” police behavior.

• It prevents the government from using confessions obtained in violation of the right against self-incrimination, evidence gathered by unreasonable searches and seizures, evidence obtained in violation of the right to counsel, and eyewitness identifications acquired by unreliable procedures.

• The justification for the exclusionary rule is to deter unconstitutional police behavior.

• The exclusionary rule also “punishes” officers. Getting evidence thrown out can negatively affect both assignments and promotions.

• The U.S. Supreme Court has established some exceptions to the exclusionary rule:– Evidence can be used when it was obtained under

what appeared to be an acceptable warrant, but the warrant is later found to be invalid for reasons that the police could not have determined at the time.

– The inevitability of discovery exception arises when evidence is obtained illegally, but a legal search was already under way that would inevitably have found the evidence anyway.

– The public safety exception permits the police to seize evidence illegally during a threat to public safety because the threat outweighs the need to maintain constitutional safeguards.

– The independent source exception, allows evidence seized illegally to be used if it is seized a second time with a proper warrant.

The Miranda Warnings

• According to the Fifth Amendment, “No person shall be compelled in any criminal case to be a witness against himself.” In one of its most famous cases, Miranda v. Arizona, the U.S. Supreme Court held that the Fifth Amendment requires police to give suspects in custody four warnings before interrogating them: – You have a right to remain silent.– Anything you say will be used against you.– You have a right to a lawyer.– If you cannot afford a lawyer, one will be provided

for you.

• Some Facts about Miranda Warnings:– In pre-arrest questioning, the police do not have to

give the Miranda warnings because the person has not been arrested.

– The warnings typically will not be given until the person starts to incriminate himself. The officer will give the warnings at that point so that the incriminating statements can be used later at trial.

– In post-arrest questioning, the person must receive the Miranda warnings.

– Once the person has been Mirandized and waives the right, the person may choose to re-invoke the right at any point and stop the questioning.

– Even when suspects have been taken into custody, the public safety exception allows officers to interrogate them without giving the Miranda warnings if giving the warning would endanger the officers or other people nearby.

The USA Patriot Act

• After 9/11, the restrictions on arrest and search and seizure were lessened substantially with the USA Patriot Act of 2001. It expanded the powers of law enforcement by allowing less restrictive use of wiretaps and search warrants to help combat terrorism and cybercrime. The Act:– Allows nationwide roving wiretaps. – Applies to Internet use.– Permits the expanded use of the Foreign

Intelligence Surveillance Act (FISA) for domestic surveillance when the probable cause standard cannot be met.

• Critics argue that the Patriot Act violates constitutional rights.

• The American Civil Liberties Union (ACLU) contends that it violates the right to confidentiality in inmate-attorney communications because the government now is permitted to monitor these communications if there is reasonable suspicion that the communications involve terrorism. – Reasonable suspicion means that the facts and circumstances are

such that law enforcement officers, in light of their training and experience, would suspect that a crime might be afoot.)

Reasonable Force

• Throughout most of U.S. history, states followed the ancient common-law rule that allowed officers to use deadly force when it was necessary to apprehend fleeing felons. The gist of these rules is that officers can use deadly force only when:– It is necessary to apprehend “dangerous”

suspects.– It does not put innocent people in danger.

• In Tennessee v. Garner, the U.S. Supreme Court “constitutionalized” these rules into an objective standard of reasonable force:– Officers are allowed to use the amount of

force necessary to apprehend and bring suspects under control.

– The standard is objective because it does not depend on an officer’s intent or motives.

• Excessive Force means that officers use more than the amount of force necessary to get control of suspects and protect themselves and others. After police were caught on tape beating motorist Rodney King in 1991, it sparked a lot of public debate about police use of force and highlighted three points about it:

1. The legitimate use of coercive force—the defining characteristic of police work—is critical to effective police work.

2. The need for legitimate force is also the source of the excessive use of force.

3. The perception that police use excessive force routinely is held by many members of racial minority groups.

• Less-than-lethal force is enough force to “cause the suspect to fall to the ground” and can be accomplished with:– physical force– the traditional nightstick and gun threat– tear gas– mace– Tasers– new technologies such as nets and foam.

• Many of these have been adopted by law enforcement agencies, but not without problems or controversy. Amnesty International USA points to 250 deaths associated with the use of the Taser from 2001 to 2006.

Hot Pursuits:

• A police pursuit with a vehicle occurs when a police officer initiates a traffic stop or house check and the target of the stop or check flees in a vehicle and the police give chase.

• It's a controversial use of force because innocent bystanders can be hurt or killed in the pursuit.

• Evidence indicates that excessive force may be more likely to occur at the end of a chase, as well.

• To reduce chase problems, police agencies are creating hot pursuit policies that indicate when a pursuit is appropriate.

Deadly Force:

• The most extreme use of police authority is deadly force.

• Police officers are trained in shooting for just this type of force, but statistically, it is a rare occurrence.

• The debate about the use of firearms by law enforcement tends to focus on when and when not to use this level of extreme force.

• When an officer shoots a suspect, it may create political harm to police-community relations if the use of deadly force is questioned.

• The legal governing force for use of deadly force is the landmark case of Tennessee v. Garner, which allows the use of deadly force only when there is an imminent threat to life.

• Police Corruption is a form of occupational crime: it involves misusing police authority for private gain. The misuse of police authority is the key to understanding police corruption and unethical actions by law enforcement officers.

• Understanding the contingencies of a law enforcement agency can help us understand how a good officer can become corrupt or unethical. Contingencies are the balance of good and bad norms in an agency. If there is a high degree of

rule violations, unethical behavior, poor leadership, bad morale, and other issues, then personnel are more likely to change over time.

How PoliceCorruption Can Occur

• The effort to control the misuse of authority begins with the hiring of police officers who can manage authority in a professional, law-abiding manner.

• The nature of police work and the culture of law enforcement can be a shock for some police rookies, whose perception of police work may be far from the reality.

• At first the new recruits will observe, but soon they will enter a new phase, the Encounter. The recruits’ colleagues may expect them to adopt certain informal practices that challenge their value systems, from accepting free food to more serious offenses, such as overlooking the corrupt behavior of fellow police officers.

• After coming to terms with the realities of the job, the recruits face a new phase, the Metamorphosis, in which they will have to choose whether to change to conform to the realities or maintain their value systems in the face of a complex profession.

Types of Police Corruption

• From a legal perspective, police corruption definitely involves the violation of law by police officers. In the worst case, a police officer willfully deprives a person of her legal rights. Examples of such actions include:– the excessive use of force– unlawful stops, arrests, or searches– sexual assault– deliberate fabrication of evidence– any act that results in the loss of liberty or

rights to another

• Discrimination by a police officer against a person based on sex, gender, race, color, national origin, religion, or sexual orientation and possible disability is also considered corruption.

• Racial profiling, in which law enforcement decisions are made on the basis of race or ethnicity, is an example of discriminatory law enforcement behavior. Racial profiling leads to disproportionate rates of stopping, detaining, and/or searching minority drivers.

• Corruption also involves actions that enhance the personal gain of the individual officer, such as:– Accepting bribes from citizens who habitually violate

noncriminal statutes or ordinances– Accepting bribes from those who violate the law in

order to make money (i.e., drug dealers)– Accepting money in exchange for police services or

protection – Fraud– Embezzlement– Nepotism– Extortion– The actual commission of felony crimes

• Possible remedies for police corruption include:– incarceration– heavy fines– restitution– revocation of the badge– civil remedies

• But these are punitive measures. One positive approach to dealing with police corruption and misconduct relies on training and other socialization measures to prevent and to change police behavior.