Assignment: Annotated Bibliography

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9 The Law of Search, Seizure, and Self- Incrimination

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Media Library

CHAPTER 9 Media Library

P R E M I U M V I D E OP R E M I U M V I D E O

S AG E N E W S C L I PS AG E N E W S C L I P

Supreme Court Hints OK on Ari- zona Immigration Law

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C A R E E R V I D E OC A R E E R V I D E O

Case Manager

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Probable Cause in Police Reports

Working the “Grid” – Interviewing a nd Interrogation

AU D I OAU D I O

After SCOTUS DNA Ruling, What C hanges For Police?

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W E BW E B

Should Law Enforcement Have a W arrant to Know Where You've Been ?

The Plain View Doctrine

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Perceptions of Police Disrespect Du ring Vehicle Stops: A Race-Based A nalysis

From Police Interrogation to Prison:

Which Sex Offender Characteristics Predict Confession?

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Objectives

After reading this chapter you will be able to:

• Discuss the chain of custody, its purpose, and why it is important

• Explain the role of arrest warrants and search warrants in the criminal investigation process and detail when they are necessary

• Discuss the importance of the Fourth Amendment to the U.S. Constitution

• Identify the situations in which a search warrant is not necessary in order to conduct a search

• Differentiate between a frisk and a search incident to arrest

• Discuss the impact of the exclusionary rule on criminal investigations and the criminal justice process

• Evaluate the importance of the Fifth and Sixth Amendments to the U.S. Constitution

• Identify the Miranda warnings and the circumstances under which the police

must notify suspects of their Miranda rights

• Assess the impact of the Miranda decision

Fact or Fiction

To assess your knowledge of police and the law prior to reading this chapter, identify each of the following statements as fact or fiction. (See page 216 at the end of this chapter for answers.)

1. In order for the police to make a valid arrest, they need reasonable suspicion that a crime occurred and that the person they are about to arrest committed it.

2. If a subject is in the custody of the police, that person is also under arrest. If a subject is under arrest, that person is also in custody of the police.

3. The police need either the owner’s consent or a search warrant in order to conduct a search of a vehicle.

4. The most common circumstance in which the police conduct a search without a warrant is the crime scene exception.

5. Pretext traffic stops are not legal according to the U.S. Supreme Court.

6. In a traffic stop, the police need probable cause to search occupants

I

for evidence.

7. Pat-down searches are conducted to discover weapons. If nonthreatening contraband is discovered in the process, it must be ignored.

8. One of the primary purposes of the exclusionary rule is to deter unlawful police conduct in search and seizure cases.

9. There are circumstances in which the police do not have to provide subjects their Miranda warnings even when subjects are in custody of the police and prior to questioning.

10. Research has shown that telling suspects they have the right to remain silent keeps most suspects from answering questions of the police.

n the previous chapter, we examined police discretion and learned that while it is unrealistic to eliminate

officer discretion, it is important that it be controlled. Several methods of controlling officer decisions were discussed, including departmental rules and standards of ethical conduct. Another important way discretion may be controlled is through laws, which is the topic of this chapter. This discussion focuses on issues related directly to the identification and apprehension of offenders—the goal of crime control. Other legal issues relating to such topics as police use of force, entrapment, and equal employment

opportunity are discussed in related chapters.

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Police Spotlight: ARIZONA V. GANT (2009)

On August 25, 1999, police in Tucson, Arizona, went to investigate a house suspected of illegal drug activity after receiving an anonymous complaint. Rodney Gant answered the door, identified himself, and explained to the officers that the owner of the house was away but would be returning later. The officers left the house and performed a warrant check on Gant; they found he had an outstanding warrant for driving with a suspended license. Officers returned later in the day and saw a woman in a car parked in front of the house. The woman consented to a vehicle search, during which the officers found drug paraphernalia. The woman was arrested. A man in the back of the house was questioned by officers and arrested for providing false information. At about this time, Gant drove up to the house and was arrested for driving with a suspended

driver’s license. Officers handcuffed Gant and placed him in a squad car. They then searched Gant’s vehicle and found a plastic bag of cocaine and a gun. Gant was subsequently

convicted of cocaine possession.1

Gant appealed his conviction. The Arizona Court of Appeals reversed the conviction, and the Arizona Supreme Court agreed with this ruling. The Arizona Supreme Court ruled that the police can legally search the passenger compartment and containers in a vehicle without a warrant as a result of a motorist’s arrest in order to protect officers’ safety or to preserve evidence, but the search of Gant’s vehicle when Gant was away from it was not reasonable.

In a 5–4 vote, the U.S. Supreme Court affirmed the decision of the Arizona Supreme Court. It ruled that the police may search the passenger compartment of a vehicle when the occupant of the vehicle is arrested only if it is reasonable to believe that the arrestee might have access to the vehicle at the time of the search or if the vehicle contains evidence associated with the arrest. Since Gant was secured in a police vehicle at the time of the search he did not have access to anything in the

vehicle. In addition, his arrest was related to a suspended driver’s license, and the police could not reasonably expect to find evidence of that offense in the vehicle. Therefore, the search of the vehicle without a warrant was unreasonable. 2

Basic Legal Terminology and Concepts

STANDARDS OF PROOF AND PROBABLE CAUSE

Proof is necessary to legally justify certain police actions and to obtain certain criminal justice outcomes. Proof results from evidence. The police need proof (in the form of probable cause) that a crime occurred and that a certain person committed that crime in order to make an arrest. An officer needs proof (reasonable suspicion) in order to stop and frisk a person. A prosecutor needs proof (beyond a reasonable doubt) in order to obtain a conviction in court. Not all proof is equal. Probable cause is one of the most important and relevant standards of proof for the police. It is what is needed in order to make an arrest or, in some cases, to conduct a search and seizure. Simply stated, probable cause exists when it is more likely than not a particular

circumstance exists—generally speaking, the degree of certainty is greater than 50%. The Supreme Court has ruled probable cause is to be determined by the “totality of the circumstances” (Illinois v. Gates, 1983) of a particular situation. As a practical matter, establishing probable cause can be thought of as a process in which some evidence can lead to other evidence, which can lead to still more evidence. The accumulation of evidence may eventually provide a basis on which to establish probable cause. It is also important to note probable cause (or any other standard of proof) is subjective; there is no absolute formula that can be used to determine if it has been established. One person (police officer, judge, or jury) may believe it has been demonstrated; another may not.

OPEN ACCESS VIDEO Probable Cause in Police Re- ports CLICK TO SHOW

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ARREST, CUSTODY, STOPS, AND ENCOUNTERS

There is often confusion about what constitutes an arrest, what is meant by custody, and what encounters and stops are. An arrest occurs when the police take a person into custody for the purposes of

criminal prosecution and interrogation (Dunaway v. New York, 1979). When a person is under arrest, that person is in custody of the police; however, it is possible to be in custody of the police and not be under arrest. When a person is deprived of his or her freedom, even if only the freedom to leave, that person is under arrest and/or in custody of the police. If an officer places handcuffs on a person, that person is not necessarily under arrest but is probably in custody. All of this is to say there is sometimes a blurry line between arrest and custody. The surest way to know if a person is under arrest is if that person is told by the police he or she is under arrest. The surest way to know if a person is in custody is if that person is not free to leave. One dimension of an arrest that is clear is the arrest must be based on probable cause that a crime occurred and the person under arrest committed it.

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The distinction between arrest and custody is important because citizens have certain rights when they are in custody of the police (e.g., the right to remain silent), even if they are not under arrest. In addition, citizens in custody have certain protections from the police that people who are under arrest do not have. To make things even more complicated, a person who is stopped by the police is also not free to leave but is not necessarily under arrest or in custody. And, along with arrests and stops, there are also encounters, or nonstops. A nonstop is an encounter, confrontation, or questioning of a subject by a police officer that requires no justification. However, during a nonstop, the subject is legally free to leave.

JOURNAL Perceptions of Police Disrespect During Vehicle Stops: A Race-Bas ed Analysis CLICK TO SHOW

ARREST WARRANT

In some cases an arrest warrant is requested by the police. The arrest warrant must name the accused or provide a specific description of the person so that his or her identity is not in question. An arrest warrant typically specifies the crime committed, the evidence of the crime, and the evidence pointing to the person named

Mikael Karlsson/Alamy Stock Photo

PHOTO 9.1 An arrest warrant is required when the police enter a home unless it is an

in the warrant as the perpetrator of the crime. The arrest warrant must be approved by a neutral and detached magistrate, most often a judge. As with an arrest, the standard of proof necessary to justify the issuance of an arrest warrant is probable cause. The overwhelming majority of arrests made by the police are made without an arrest warrant because they are made in public. An arrest warrant is required when the police must enter a home to make an arrest, unless there are exigent circumstances (Payton v. New York, 1980) or consent is given (Steagald v. United States, 1981).

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emergency situation or the police have consent to enter.

SEARCH

A search can be defined as a governmental infringement into a person’s reasonable expectation of privacy for the purpose of discovering things that could be used as evidence in a criminal prosecution (Katz v. United States, 1967). A reasonable expectation of privacy exists when a person believes that his or her activity will be private and that belief is reasonable (Katz v. United States, 1967). A seizure involves the police taking control of a person or thing because of a violation of a law. What is seized may constitute evidence and could include items such as contraband (e.g., drugs), fruits of a crime (e.g., stolen goods), instruments of the crime (e.g., weapons), or evidence of the crime (e.g., bloodstained clothing). Depending on the circumstances, searches may or may not need to be based on probable cause.

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SEARCH WARRANT

In the absence of an exception to the search warrant requirement (see below), a search warrant may be required when the police wish to seize evidence. A search warrant specifies the person, place, or

vehicle to be searched and the types of items to be seized by the police. It must be based on probable cause, issued by a judge or magistrate, and served immediately. Most searches are actually conducted without a warrant because an exception to the warrant requirement applies; this will be discussed in detail later in the chapter.

CHAIN OF CUSTODY

When the police collect physical evidence —tangible objects that relate directly to a crime—the chain of custody must be maintained. The chain of custody refers to the record of individuals who maintained control (custody) over evidence from the time it was obtained by the police to when it was introduced in court. At a minimum it would include details about the collection of the evidence from the crime scene, the storage of the evidence in the police evidence room, and the transfer of the evidence to court for trial. The chain of custody is to ensure the security of physical evidence. If a chain of custody is not established, or if it can be questioned, the value of the evidence itself may be questioned.

The Law of Search and Seizure: The Fourth Amendment

In order for evidence to be admissible in court, the police have to follow certain

legal rules in collecting it. These laws are intended to protect citizens from unwarranted governmental intrusion into their lives; they represent the civil liberties of citizens and relate to the protections offered by the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution (see Appendix). The procedures associated with arrests, searches, and seizures relate to the Fourth Amendment and various legal interpretations of it. The Fourth Amendment reads as follows:

mark reinstein/Alamy Stock Photo

PHOTO 9.2 A search warrant is required to search a home unless one of the exceptions to the search warrant requirement applies.

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TECHNOLOGY ON THE JOB

GPS and United States v. Jones (2013)The global

positioning system (GPS) has many applications, including criminal identification, apprehension, and evidence collection. Using satellite-to-ground communication, GPS can monitor the location and movements of suspects, suspects’ vehicles, and contraband. However, the use of GPS, or of any technology oriented toward crime control, can raise questions about reasonable expectations of privacy. One example of this can be found in the U.S. Supreme Court case of United States v. Jones (2013).

Antoine Jones was being investigated for narcotics offenses by the FBI and the Washington, D.C., Metropolitan Police Department. During the investigation a GPS device was installed on Jones’s vehicle that tracked the vehicle around the clock for four weeks. A warrant was not obtained for the GPS tracking. Jones was eventually arrested, convicted of drug trafficking, and sentenced to life in prison.

On appeal it was argued the GPS evidence was collected in violation of Jones’s Fourth Amendment rights and, as a result, should be excluded from the proceedings. The appeals

court agreed and overturned the conviction. The case was then brought to the U.S. Supreme Court. The Court agreed that the installation of a GPS device on a vehicle to monitor that vehicle’s movements constituted a search. The Court ruled the GPS evidence was illegally collected and should be excluded from trial.

In a retrial of the case, prosecutors used cell site data for which no warrant was required instead of the illegally collected GPS tracking information. The case resulted in a mistrial, and Jones accepted a plea bargain of fifteen years to avoid yet another trial.

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 person or things to be seized.

Over the years a multitude of legal cases have defined and redefined the meaning of the Fourth Amendment. In essence, the intent of the Fourth Amendment is to

protect individuals’ privacy and protect against arbitrary intrusions into that privacy by government officials. As such, as interpreted by the courts, the Fourth Amendment offers protection in a variety of situations.

REASONABLE EXPECTATION OF PRIVACY

According to Katz v. United States (1967), searches are restricted wherever individuals have a reasonable expectation of privacy. If there is not a reasonable expectation of privacy, then there is no need for the police to restrict a search and no need for a warrant. In the case of Katz, a reasonable expectation of privacy was found to exist in a public telephone booth used by the defendant. In the case of O’Conner v. Ortega (1987), an expectation of privacy was found to exist in the defendant’s desk and filing cabinets. The use of surgery to recover evidence has been found to constitute a search and seizure (Winston v. Lee, 1985). The use of a thermal-imaging device to detect criminal activity in a home also represents a search (Kyllo v. United States, 2001), as does attaching a global positioning system (GPS) device on the undercarriage of a car (United States v. Jones, 2013; see Technology on the Job feature).

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A Question to Consider 9.1

The Value of Privacy

The Fourth Amendment and all of the court cases associated with it relate in some manner to the expectation of privacy. Some people think that privacy is disappearing and are deeply troubled. The question is this: What is so great about privacy? Why do people care about privacy and about losing it? Is it only criminals who should be concerned about their privacy? Explain your answer.

GPS monitoring of sex offenders also constitutes a search under the Fourth Amendment when such a device is attached to a person’s body without consent (Grady v. North Carolina, 2015). A police dog sniffing for drugs on a subject’s front porch is considered a search (Florida v. Jardines, 2013). However, a dog sniff of the outside of an automobile during a valid traffic stop is not a search that requires a warrant or consent (Illinois v. Caballes, 2005) as long as that action does not “prolong the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual” (Rodriguez v. United States, 2015).

THE SEARCH WARRANT REQUIREMENT AND ITS

EXCEPTIONS

The general rule is that when and where citizens have a reasonable expectation of privacy, the police need probable cause and a search warrant to conduct a legal and valid search. However, there are many exceptions to this rule. In fact, most searches conducted by the police are conducted without a search warrant, just as most arrests are made without an arrest

warrant.3 Generally speaking, probable cause (or reasonable suspicion, in some cases) is required in nearly all searches, regardless if conducted with or without a warrant, unless the search is conducted with consent. When there is consent to do a search, probable cause or reasonable suspicion is not necessary. When a search is conducted without a warrant, the burden is on the police to establish a valid and lawful reason for the search. Specifically, when a search is conducted without a warrant, police actions must relate to one of the exceptions to the search warrant requirement. These exceptions can be grouped into the following categories:

• Exigent circumstances

• Vehicles

• Other places/things not covered by the Fourth Amendment

• Hot pursuit

Connecticut State Police via Getty Images

PHOTO 9.3 Even if a house is a crime scene, the police must still have a warrant to conduct a search or one of the exceptions to the search warrant requirement must apply.

• Incident to arrest

• Stop and frisk

• Plain view

• Consent

Notice that there is not a crime scene exception to the search warrant requirement. For the police to conduct a search of a crime scene, such as a house, they either need a warrant or their actions must relate to one of the exceptions to the search warrant requirement listed above.

Exigent Circumstances

Exigent circumstances, or emergency situations, allow the police to conduct a search without first obtaining a warrant. In

general, the rationale for the exigent cir- cumstances exception is that without immediate police action, the suspect may destroy evidence or may pose danger to herself or himself, the police, or the public, or someone else may be in further danger

of harm.4 Several Supreme Court cases define the exigent circumstances exception. For example, consider the case of Schrember v. California (1966). Schrember was hospitalized as the result of an automobile accident during which he had apparently been driving. A police officer smelled alcohol on Schrember’s breath and noticed symptoms of intoxication at the scene of the accident as well as at the hospital. Schrember was placed under arrest and informed of his rights. On the officer’s direction, and despite Schrember’s refusal, hospital medical staff took a blood sample. An analysis of the blood revealed a blood- alcohol level indicative of intoxication, and this evidence was admitted at trial. On appeal the Supreme Court ruled exigent circumstances existed in this situation because the alcohol in a person’s bloodstream may disappear in the time required to obtain a warrant. Thus, obtaining evidence in this manner, under these circumstances, and without a warrant did not constitute a violation of a defendant’s constitutional rights. Missouri v. McNeely (2013) challenged the Schrember decision. This case also involved a blood draw from a motorist

suspected of being intoxicated. The motorist was taken to a hospital, where an involuntary blood draw was performed without a warrant. The Supreme Court ruled exigency must be determined on the totality of the circumstances and a warrant should be required for blood draws in routine DUI situations. In some circumstances, such as the ones present in the McNeely case, technology has provided the potential for officers to obtain warrants without delay. Therefore, exigency in blood draws is not automatic or present in all cases.

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Another recent case that relates to the prevention of the destruction of evidence is Kentucky v. King (2011). Here, the Supreme Court ruled if the police reasonably believe a subject is destroying evidence, officers can take immediate action without a warrant. In this case, the police had kicked in the door to an apartment after pursuing a subject into the apartment building, smelling marijuana outside of the apartment door, and announcing their intent to forcibly enter the apartment. The search was ruled as an exigent circumstances exception and the seized evidence was admissible.

The Supreme Court case of Michigan v. Fisher (2009) relates to the emergency aid rationale of the exigent circumstances

exception. The Court ruled that when the police encounter a situation in which a subject is injured, may be about to be injured, or is in need of aid, exigent circumstances exist and a warrant is not necessary to enter a home, even if the police do not have “iron-clad proof” a subject has life-threatening injuries (also see Brigham City v. Stuart, 2006).

In Payton v. New York (1980), the Supreme Court ruled there were no exigent circumstances and, correspondingly, the warrantless search in question was unconstitutional. In this case, police intended to arrest Payton for murder and went to his apartment without a warrant. After knocking on the door and receiving no answer, they used crowbars to gain entry into the apartment. No one was there. In plain view was a shell casing that was seized and later admitted into evidence at Payton’s murder trial. Payton was convicted and appealed. The Supreme Court ruled that in the absence of consent or exigent circumstances, the police may not enter a suspect’s home to make a routine felony arrest or to conduct a search without a warrant. As a result, the evidence seized from the search was not admissible.

Vehicle Exception

People have a lesser expectation of privacy in vehicles (including motor homes; see

California v. Carney, 1985) than in their homes. Moreover, vehicles are mobile and it is therefore more difficult for the police to collect evidence contained in them. Searches of vehicles may also be conducted to minimize the dangers to officers associated with vehicle stops. Several cases have defined this vehicle ex ception to the search warrant requirement and provided guidelines for stopping and searching vehicles (see Table 9.1).

In Chambers v. Maroney (1970), the police stopped the car of Chambers and three other men for an armed robbery that had just occurred at a service station. The men were arrested and the car was driven to the police station, where it was searched. During the course of the search, the police found concealed in a compartment under the dashboard two .38-caliber revolvers, a glove containing change, and cards bearing the name of a different service station attendant who had been robbed a week earlier. In conducting a warrant-authorized search of Chambers’s home the day after the arrest, police found and seized .38- caliber ammunition. At the trial the evidence found in the car and the bullets seized from the home were introduced, and Chambers was convicted of the robbery of both service stations. On appeal the Supreme Court held that if probable cause exists that a vehicle contains evidence, and if that vehicle is

Photo by Steve Osman/Los Angeles Times via Get-

ty Images

PHOTO 9.4 A warrant is not required for a dog to sniff the outside of a car.

mobile, an officer may search the vehicle at the scene or at the police station without a warrant. The search was valid and the evidence admissible.

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TABLETABLE 9.1 Guidelines for Stopping and Searching Vehicles

In South Dakota v. Opperman (1976), the Court ruled that when the police tow and impound a vehicle, even for a parking

violation, a routine inventory search is reasonable without a warrant or probable cause. This procedure protects the owner’s property, protects the police against claims that the owner’s property was stolen while the car was impounded, and protects the police from potential danger. In addition, during an inventory search, it is reasonable for the police to search closed containers, such as a backpack, without a warrant (Colorado v. Bertine, 1987). However, inventory searches conducted solely for the purpose of discovering evidence are illegal regardless of what is discovered during the course of the search.

In Michigan v. Long (1983), the Supreme Court spoke of the dangers associated with roadside encounters with suspects and stated this can justify searches of vehicles. In this case, two police officers observed a car traveling erratically and at excessive speed. When the car swerved into a ditch, the officers stopped and were met by Long, the only occupant of the car, at the rear of the car. The door on the driver’s side of the vehicle was open. Long did not respond to initial requests to produce his license and registration. When he began walking toward the open door of the car, the officers followed him and saw a knife on the floorboard of the driver’s side of the car. At that time the officers subjected Long to a pat-down search, but no weapons were found. One of the officers shone a light into the car and saw

something protruding from under the armrest of the front seat. Upon lifting the armrest, the officer saw an open pouch that contained what appeared to be marijuana. Long was then arrested for possession of marijuana. A further search of the car revealed no additional contraband, but the officers decided to impound the vehicle. As a result of the subsequent search, more marijuana was found in the trunk. The marijuana was introduced at trial, and Long was convicted of possession of marijuana. On appeal the Supreme Court held that if an officer has reasonable suspicion that a motorist who has been stopped is dangerous and may be able to gain control of a weapon in the car, the officer may conduct a brief warrantless search of the passenger compartment even if the motorist is no longer inside the car. Such a search should be limited to areas in the passenger compartment where a weapon might be found or hidden. If contraband is discovered in the process of looking for a weapon, the officer is not required to ignore it. However, in order to look inside a closed container in a vehicle without a warrant for reasons other than an inventory search, there must be probable cause to suggest evidence is present in the container (California v. Acevedo, 1991).

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Important differences between the Long

case and Arizona v. Gant (2009), which was discussed in the introduction to the chapter, involve when the suspect was arrested—before or after the search—as well as the reason why the subject was arrested. Gant relates most closely to the searches of vehicles after an arrest is made. Thus, this case is discussed below in the section on search incident to arrest.

With regard to traffic stops, in the case of Whren v. United States (1996), the Court ruled that any traffic offense committed by a driver provides a legal basis for a traffic stop. In this particular case, the traffic offense was a right turn without the use of a directional light. The traffic stop led to the discovery and seizure of drugs from the occupants. According to the Court, a traffic stop is legal even if it is a pretext tr affic stop for some other law enforcement action, such as a criminal investigation.

Other cases have further defined the law with regard to traffic stops. For example, the Court has ruled that a stop is legal even if the officer made a reasonable mistake in concluding a traffic violation occurred (Heien v. North Carolina, 2014) and that an anonymous 911 call can provide reasonable suspicion to make a traffic stop (Navarette v. California, 2014). However, the police may not stop a vehicle to check the motorist’s driver’s license and car registration without reasonable suspicion the driver does not have a license, the

vehicle is not registered, or the law is somehow being violated (Delaware v. Prouse, 1979), or without consideration of the totality of the circumstances that illegal actions are afoot (United States v. Arvizu, 2002). As ruled in United States v. Ortiz (1975), a vehicle search at a fixed checkpoint (such as a border crossing) requires consent, probable cause, or a warrant. Checkpoints where all vehicles are stopped by the police for the purpose of locating witnesses or to collect other information are permissible (Illinois v. Lidster, 2004). Searches of randomly stopped vehicles are not legally permissible.

Additionally, when a traffic stop is made to issue a traffic citation, the police may order the occupants out of the vehicle, but to justify a brief search of that vehicle there must be a reasonable suspicion of danger to the officer (Knowles v. Iowa, 1998; Michigan v. Long, 1983). In Brendlin v. California (2007), the Supreme Court held that once a vehicle is stopped by law enforcement, all of the vehicle’s occupants are subject to search. Further, a drug dog can sniff the outside of a vehicle in a traffic stop (Illinois v. Caballes, 2005) so long as this action does not prolong the stop if reasonable suspicion is not present (Rodriguez v. United States, 2015).

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REUTERS/Alamy Stock Photo

PHOTO 9.5 A warrant is not required to collect DNA from a subject who has been arrested, but one is required when a subject is not under arrest, unless the DNA is collected via consent or in some other way.

Other Places and Things Exception

The third exception to the search warrant requirement, the other places exception, applies to places and things not afforded Fourth Amendment protections. For example, in the case of Oliver v. United States (1984), the “other place” was an

open field of marijuana, in spite of a “No Trespassing” sign. Other decisions of the Supreme Court have held that there is no reasonable expectation of privacy in garbage left for collection outside a house (California v. Greenwood, 1988), in greenhouses viewed from the sky (Florida v. Riley, 1989), or in bank records obtained via a subpoena (United States v. Miller, 1976). In Maryland v. King (2013), the Court ruled that the defendant’s Fourth Amendment rights were not violated when a DNA cheek swab was taken as part of arrest and booking procedures. However, police need a warrant to collect DNA from a subject who is not under arrest unless the DNA is provided with consent or collected in some other indirect way. Firefighters do not need a warrant to enter a building to extinguish a fire or to conduct an investigation of the cause of a fire (Michigan v. Tyler, 1978).

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Hot-Pursuit Exception

Sometimes hot pursuit is considered an exigent circumstance. Indeed, the rationale for a hot-pursuit search is the same as for other exigent circumstances: to prevent harm to people or to prevent the destruction of evidence. The Supreme

Court case of Warden v. Hayden (1967) created the hot-pursuit exception to the research warrant requirement. When pursuing an armed robbery suspect, the police arrived at the house they believed the suspect had entered. An officer knocked and announced his presence. He asked for permission to search the house, and Mrs. Hayden offered no objection. The officers found Hayden upstairs pretending to be asleep and arrested him. Another officer discovered a shotgun and a pistol. The pistol; a clip of ammunition for the pistol; and a cap, jacket, and pants that matched the description of the clothing worn by the perpetrator were admitted as evidence. Hayden was convicted. On appeal, the Supreme Court ruled the police may make a warrantless search and seizure when they are in “hot pursuit” of a suspect. The scope of the search may be as extensive as reasonably necessary to prevent the suspect from resisting or escaping. Officers do not need to delay an arrest if doing so would endanger their lives or the lives of others, or allow for the destruction of evidence. However, the warrantless entry still requires probable cause that the suspect being pursued committed a crime and is in the premises to be entered. Furthermore, hot pursuit applies only to serious offences, felonies, and some misdemeanors (Welsh v. Wisconsin, 1984).

Another case that relates to hot pursuit is

United States v. Santana (1976). In this case, Santana was standing in the doorway of her house as the police arrived. The police had probable cause to believe the paper bag she was holding contained heroin. As the police officers approached, Santana retreated into her house. The police followed her into the house and arrested her even though they did not have a warrant to enter her house. The Supreme Court held that there is no reasonable expectation of privacy outside one’s home. If a suspect enters her house to avoid arrest, the police may enter the house without a warrant and conduct a search accordingly.

Search Incident to Arrest Exception

The search incident to arrest exception to the search warrant requirement applies to situations in which the police conduct a search of an individual as a result of that person’s arrest. Over the years numerous cases have addressed this exception. As with the other exceptions, the rationale is to prevent harm to the officer and/or to prevent the destruction of evidence.

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In the case of Chimel v. California (1969), police officers with an arrest warrant, but not a search warrant, were admitted into Chimel’s home by his wife. When he arrived home, Chimel was served with the

arrest warrant. Although he denied the officers’ request to “look around,” the officers conducted a search of the entire house, including the attic, garage, and workshop. At his trial on burglary charges, items seized from Chimel’s home were admitted over the objection they had been unconstitutionally seized. The Supreme Court agreed and held that the search of Chimel’s home went far beyond his person and the area within which he might have harbored either a weapon or something that could have been used as evidence against him. There was no justification for extending the search beyond the area within his immediate control—the area covered by the spread of the suspect’s arms and hands.

In Maryland v. Buie (1990), the Supreme Court ruled a larger search was justified because of the potential for danger to officers. In this case, police officers obtained and executed arrest warrants for Buie and an accomplice in connection with an armed robbery. On arrival at the house, officers fanned out throughout the first and second floors. One of the officers watched the basement; the officer shouted he was the police and anyone in the basement should come out. Eventually, Buie emerged from the basement and was arrested, searched, and handcuffed. Another officer then entered the basement to determine whether anyone else was there. He noticed, in plain view,

clothing similar to that worn by a suspect in the robbery. That evidence was admitted at the trial, and Buie was convicted. On appeal the Supreme Court held that a protective sweep is justified when there is reasonable belief a person who poses a danger to those at the scene is at the scene. The officer went into the basement not to search for evidence but to look for the accomplice or anyone else who might have posed a threat to the officers. This was acceptable. However, a protective sweep by the police is not allowed every time an arrest is made, and it must be limited in scope.

If an arrest occurs outside a house, the police may not search inside the house as a search incident to lawful arrest (Vale v. Louisiana, 1970). However, the police may monitor the movements of a person who has been arrested. If the person who has been arrested proceeds into a private place (e.g., a dorm room, a house), the police may accompany him or her. If evidence is then observed in plain view, it may be seized (Washington v. Chrisman, 1982). In addition, any lawful arrest justifies the police to conduct a full-scale search of that person even without officer fear for safety or belief evidence may be found (Gustafson v. Florida, 1973).

If an occupant of a vehicle is arrested in or near the vehicle, the scope of the search can include a search of the passenger

compartment of that automobile, including containers found within the passenger compartment, “for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach” (New York v. Belton, 1981).

The Supreme Court case of Arizona v. Gant (2009) further clarifies the ability of the police to search vehicles incident to arrest (see the Police Spotlight feature at the introduction to this chapter). In this case, Gant was arrested for driving with a suspended license and was handcuffed and placed in the back seat of a police car. It was only then that the police searched his vehicle. The search was ruled unreasonable. As explained by the Court, “the police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of the arrest.” Gant had no access to the vehicle when the search was conducted, and there was no reason to suspect that the vehicle contained evidence relating to

driving with a suspended license.5

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An emerging issue involves the retrieval of information from cell phones incident to arrest. In Riley v. California (2014), the

Court ruled that the police may not, without a warrant, search a cell phone seized from an individual who has been arrested, unless exigent circumstances or consent would allow it.

Stop and Frisk Exception

Due to the stop and frisk exception, the police may conduct a search of a person even though an arrest of that person may not be justified. Many court decisions have clarified and defined the intricacies of this exception to the search warrant requirement, and most of them note the importance of ensuring officers’ safety in justifying stop and frisk searches. The most famous of these cases was the landmark Terry v. Ohio (1968). The facts of the case are as follows: While patrolling a downtown beat, Cleveland police officer McFadden observed two strangers on a street corner. It appeared to the officer that the two men were casing a store. Each man walked up and down the street, peering into the store window, then returned to the corner to confer with the other. At one point they were joined by a third man, who left abruptly. Officer McFadden followed the original two men for a couple of blocks until they were rejoined by the third man. The officer then approached the men, identified himself, and asked for their identification. The men mumbled something, whereupon McFadden frisked all three of them. Terry

REUTERS/Jim Young

PHOTO 9.6 Stop and frisk searches are conducted to protect officers and to discover weapons. However, if evidence is discovered in the process of a pat-down search, the

and one other man were carrying handguns. Both were tried and convicted of carrying concealed weapons. On appeal the Supreme Court held that

where a police officer observes unusual conduct which leads him to reasonably conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . . he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

The practice of stop and frisk is thus legal.

police are not required to ignore it.

Many cases relate to the question of what constitutes reasonable suspicion that criminal activity is afoot—the prerequisite for a legal stop and frisk. In Brown v. Texas (1979), the Supreme Court ruled that just because an individual looks suspicious and has never been seen in the area before, the police do not have reasonable suspicion criminal activity is afoot. In Illinois v. Wardlow (2000), reasonable suspicion was determined to have been present when a suspect in a high narcotics trafficking area fled from the police once he saw them. However, a stop and frisk based on an anonymous tip is not legally permissible

(Florida v. J. L., 2002).6

When conducting a pat-down search, nonthreatening contraband (e.g., drugs) may be seized only if it is immediately apparent and it is not found as a result of squeezing, sliding, or otherwise manipulating the contents of the defendant’s pockets (Minnesota v. Dickerson, 1993).

p.205

Plain View Exception

When the police conduct a search with a warrant or when the police are legally present at a particular place and evidence

is observed, that evidence may be seized under the provisions of the plain view exc eption to the search warrant requirement. Consider the case of Texas v. Brown (1983). In Fort Worth, Texas, Brown’s car was stopped at a routine checkpoint at night by a police officer. The officer shone his flashlight into the car and saw an opaque party balloon, knotted near the tip, fall from Brown’s hand to the rear seat. Based on the officer’s experience in drug offense arrests, he was aware narcotics are often stored in these types of balloons. He shifted his position to obtain a better view and noticed drug paraphernalia and loose white powder in the glove compartment. After he failed to produce a driver’s license, Brown was placed under arrest. At trial Brown was convicted of narcotics offenses. The Supreme Court held the officer’s initial stop of the car was valid and the officer shining his flashlight into the car and changing position did not violate Brown’s Fourth Amendment rights. The officer had probable cause to believe the balloon contained narcotics, so the seizure was also justified.

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In the case of Horton v. California (1990), the police were conducting a warrant search for the proceeds of a robbery and in the process inadvertently discovered weapons in plain view. The Supreme Court ruled the seizure of items not listed in a warrant is permissible as long as those items are in plain view. In other cases, however, additional actions with regard to items found in plain view have been ruled by the Court as unacceptable. For example, in Arizona v. Hicks (1987), the Supreme Court held that moving a stereo in plain view to record its serial number constituted a search and was not permissible without a warrant.

Consent Search Exception

The vast majority of searches conducted by police without a warrant occur when a person provides the police consent for the search. One reason why consent searches are used so often is that probable cause or even reasonable suspicion are not needed in order to justify the search.

Consider Schneckloth v. Bustamonte (1973). A car containing six men was stopped for a traffic violation by a California police officer. Bustamonte, the driver, and three of the other men could

not provide a driver’s license. The man who did provide a license, Alcala, explained his brother owned the vehicle. The officer asked Alcala if he could search the car. Alcala gave consent and helped the officer open the trunk and glove compartment. Under the rear seat the officer found several checks that had previously been stolen from a car wash. The checks were admitted as evidence in trial, and Bustamonte was convicted. The Supreme Court held that after validly stopping a car, an officer may ask the person in control of the car for permission to search it. If consent is given, the officer may conduct a search even if there is not probable cause or reasonable suspicion. The voluntariness of the consent is to be determined by the totality of the circumstances, and consent need not be in writing. The police do not have to inform subjects of their Fourth Amendment rights prior to receiving valid consent; however, the burden lies on the officer to prove the consent was valid.

In a related case, the Supreme Court ruled consent is valid if received from a third person believed to have common authority over the premises (Illinois v. Rodriguez, 1990). In Stoner v. California (1964), however, a search of a hotel room was deemed not valid when consent was received from the hotel night clerk as the clerk did not have common authority over that room. If two people with common authority (e.g., a husband and wife who

Legal Knock and Talk Searches

Carlos Chavez/Los Angeles Times via Getty I

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PHOTO 9.7 A knock and talk search is used to obtain consent to conduct a legal search of a home without a warrant.

share a home) are present and one gives the police consent to search and the other objects, then a consent search is not justified; however, if one of those objecting parties is legally removed (e.g., arrested) and not present where the search is to occur, then the search is valid (Fernandez v.

California, 2014).7

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GOOD POLICING

Four issues need to be considered in judging the legality of a knock and talk

search.8 First is the walk. The police should approach the premises using

open and accessible areas, such as driveways, sidewalks, and front doors. Second is the encounter. The police actions should be conducted in such a way that a person could feel free to decline the request to search. For instance, officers should not order persons to open the door or be unreasonably persistent in attempting to gain access/consent. Third is the knock. Again, officers should not be unreasonably persistent in summoning the occupants of the house. In the case of United States v. Jerez (1997), officers simply refused to take no for an answer; they repeatedly knocked on doors and

windows until they got a response.9

Fourth is the talk. Officers should be polite and ask questions (e.g., “Can you come to the door please?”) versus issuing commands (e.g., “Police, open the door!”). With these considerations in mind, a knock and talk can be a valuable and legally justified approach to obtaining consent to conduct searches.

In some law enforcement agencies, so- called knock and talk searches are a frequently used investigative strategy. With a knock and talk search, the police approach a house, knock, talk with the occupant, and seek consent to enter and

search the house. Depending on the manner in which they are conducted, knock and talk searches can be a legal and useful strategy of obtaining evidence (see Good Policing feature).

Finally, a consent search is limited in several ways. It is limited by the statements and actions of officers; the officer must limit the scope of the search to that which was represented to the subject (e.g., the statement “I’m only interested in looking around in the bedroom” would preclude the officer from searching other rooms). Also, the search is limited by the actions and statements of the subject; the officer may not exceed the parameters of the search as stated by the subject (e.g., “You can’t search the bedroom” would prohibit an officer from searching the bedroom). Finally, the search must be reasonable. For example, consent to do a pat-down does not represent consent to do a strip search; consent to search does not allow an officer to break

open things.10

THE EXCLUSIONARY RULE

If a search is determined to be unreasonable, the evidence obtained is considered incompetent evidence and must be excluded from trial. This basic principle is known as the exclusionary rul e. The exclusionary rule relates specifically to unreasonable searches and seizures. As

discussed later, however, evidence collected in violation of other constitutional rights is also excluded from trial, although not technically as a result of

the exclusionary rule.11

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The case most often associated with the exclusionary rule is Mapp v. Ohio (1961). In this case, Cleveland police officers arrived at the Mapp residence as a result of information they received that a person wanted for a recent bombing was in the home. The officers knocked on the door and demanded entrance. Mapp telephoned her attorney and refused to let the officers in without a warrant. Three hours later, additional officers arrived at the scene. Mapp’s attorney also arrived, but the police would not allow him to enter the house or to see Mapp. Mapp demanded to see a search warrant, so a paper, claimed by the police to be a warrant, was held up by one of the officers. Mapp grabbed the warrant and a struggle ensued. Mapp was handcuffed and the police searched her entire house, including dresser drawers, suitcases, and closets. A trunk in the basement was searched and obscene material was discovered inside. Mapp was charged and convicted of possession of these materials, but no search warrant was produced at the trial. On appeal the Supreme Court ruled that in state criminal proceedings the exclusionary rule

prohibits the use of evidence resulting from unreasonable searches and seizures. The evidence in Mapp was not admissible.

As another example of the exclusionary rule, consider the case of Davis v. Mississippi (1969). During a rape investigation, the police collected fingerprints and palm prints from the windowsill through which the assailant entered the home. The victim, however, could not provide the police with any details regarding the assailant aside from the fact that he was an African American juvenile. The police, without warrants, took twenty-four African American juveniles to police headquarters to be questioned and fingerprinted. One of these juveniles, Davis, was questioned and released. Later, still without a warrant or probable cause, the police took Davis into custody and held him in jail overnight. During this time his fingerprints were found to match those collected from the crime scene. Davis was tried and convicted of the rape. On appeal the Supreme Court held that “[f]ingerprint evidence is no exception to the rule that all evidence obtained by searches and seizures in violation of the Constitution is inadmissible in state court.” Davis’s conviction was reversed.

There are exceptions to the exclusionary rule that occur when something may have made the search and seizure technically

illegal, but the evidence is still admissible in court. Briefly, these exceptions include situations in which the police make an unintentional error in conducting the search (good faith exception to the exclusionary rule); the police would have found the evidence without the illegal search (inevitable discovery); the voluntary actions of the suspect nullify the illegal actions of the police (purged taint exception); or the evidence is obtained independent of the illegal police action (independent source exception).

The Impact of the Exclusionary Rule

The discussion of the exclusionary rule and its exceptions raises an important question: What is the purpose of the exclusionary rule? The most obvious purpose is to prevent illegally obtained evidence from being used in court against a defendant. The other purpose of the exclusionary rule is to deter unlawful police conduct in search and seizure cases. The reasoning is that if the police know illegally seized evidence cannot be used in court to prove the suspect’s guilt, then the police will not seize the evidence illegally— they will follow the law in collecting the evidence. The police will not violate citizens’ rights, which is the fundamental aim of the constitutional protections.

But does the exclusionary rule really deter

police misconduct in conducting searches and seizures? The answer to this question is no, it does not—at least not as much as what many would hope or expect. The reason for this is that there are ways of

“getting around the Fourth Amendment.”12

Indeed, the police can use several strategies to circumvent the rule. If these strategies do not break the law, they at least bend it. Although these actions may not be ethical, it would be naïve to ignore the fact that they sometimes occur. For example, the police may stretch the boundaries of the consent exception and conduct searches in situations when “consent” may not actually have been legally obtained. The police may conduct an illegal search with full knowledge the evidence seized will not be admissible and the case will not be prosecuted. Or officers could conduct an illegal search and seize

evidence to harass a suspect.13 Does this really happen? In a survey of Illinois police officers, 25% stated they had witnessed at least one illegal search of a subject during

the previous year.14 Additionally, police officers may engage in “judge-shopping,” which occurs when officers seek out particular judges to review applications for

warrants.15 It is interesting to consider that warrant applications are rarely

rejected by judges or magistrates.16

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SAGE NEWS CLIP Sharpton Hopes to Meet Soon With New NYPD Head

A Question of Ethics

Necessary Means to Achieve the Desired Ends?

An important goal of the police is to identify and apprehend criminals, and we expect them to work hard to do so. A lot of money is allocated to law enforcement agencies so they can accomplish this goal. We also expect the police to obey the law and not violate citizens’ rights. However, some criminals are crafty; they know how to avoid detection. If the police engage in conduct that is not legal, but their actions result in criminals being identified and apprehended, is there really anything wrong with that? Why or why not?

Finally, unfortunately, sometimes officers simply lie. For a variety of reasons, officers may misrepresent the facts of a case to a judge and, as a result, the “fruits” of an otherwise illegal search may be admitted into trial and considered in determining

the guilt or innocence of the accused.17

One study found that 4% of officers knew of other officers who had provided false testimony in traffic cases, 3% knew of false testimony given in criminal cases, and 7% knew of arrest reports written in a false

manner.18 Given the sensitive nature of this area of inquiry, one might expect these illegal behaviors are underreported by officers. Although deception by the police in these types of situations is certainly troubling, the issue is complicated by the fact that in other situations it is legal for the police to lie—for instance, to a suspect in the interrogation room. If the police feel the law is simply a barrier to effective performance, deception in many situations may be understandable but still not acceptable. Indeed, the most common reason given for officers lying is that they view it as a necessary means to achieve the

desired ends.19 In any case, the exclusionary rule may not prevent the police from engaging in these questionable, unethical, or illegal actions.

Another issue related to the exclusionary rule is whether or not potentially guilty suspects are freed because of the rule. The research on this is mixed and dated; the general conclusion appears to be that the exclusionary rule affects only a very small

percentage of cases (.4% to 1.4%).20

Although the prevailing wisdom is that the exclusionary rule has little impact on cases after a suspect has been identified and apprehended, it is important to realize these studies did not examine the impact of the exclusionary rule on crimes being solved. The exclusionary rule may very well prevent some crimes from being solved.

The Law of Self- Incrimination: The Fifth and Sixth Amendments

The Fifth Amendment to the U.S. Constitution protects citizens against self- incrimination. It reads, in part, “No person 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.”

The Sixth Amendment includes several rights. The most important for criminal investigation is the right of individuals to be represented by an attorney in legal proceedings. The amendment states, in part, “In all criminal prosecutions the accused shall enjoy the right to . . . have the

assistance of counsel for his defense.”

The protections offered in the Fifth and Sixth Amendments are relevant when determining the admissibility of incriminating statements obtained from suspects. If information is obtained from suspects illegally, then that potentially valuable information is inadmissible in court because it violates the due process rights of the accused. The basic question is, when are incriminating statements made by a suspect admissible in court and when are they not?

p.209

The most famous and widely applied case associated with the Fifth and Sixth Amendment protections is Miranda v. Arizona (1966). This case involved the rape of an eighteen-year-old developmentally disabled woman. At the time the crime was reported, the woman was able to provide a description of the perpetrator and details about his car. About a week after the incident, the police were informed by a relative of the victim that she had again seen the car driven by the perpetrator, and a license plate number for the vehicle was provided. The police were eventually able to locate the vehicle, and it matched the description provided by the victim.

The police found Ernesto Miranda asleep in the house where the vehicle was parked.

ASSOCIATED PRESS

PHOTO 9.8 The U.S. Supreme Court case of Miranda v. Arizona is responsible for the Miranda warnings.

The police arrested him, transported him to police headquarters, and placed him in a lineup with three other Mexican

Americans to be viewed by the victim. She was not able to positively identify Miranda as the perpetrator, but in the interrogation room, police told Miranda that he had been identified by the victim. After two hours of questioning, he confessed to the kidnapping and rape as well as two other recent crimes—a robbery and an attempted rape. Police then provided a sheet of paper to Miranda on which to provide a handwritten confession. The confession provided by Miranda was similar to the account provided by his victim.

At the trial Miranda’s written confession was presented as evidence in spite of the objections of Miranda’s attorney, who argued the confession was coerced and therefore inadmissible. The judge ruled that the case of Gideon v. Wainwright (1963) offered the benefit of defense counsel at trial, not at the arrest, and therefore the confession was legally obtained and admissible. The jury found Miranda guilty of rape and kidnapping, and he was subsequently sentenced to prison.

Miranda’s attorney appealed the conviction to the Arizona Supreme Court with the argument that the confession was not voluntarily offered. Meanwhile, during this time and while Miranda was serving his prison sentence, the U.S. Supreme Court ruled in the case of Escobedo v. Illinois (1964). In this case, the Court held

defendants have the right to an attorney at the interrogation stage of criminal proceedings. However, because Miranda had not requested an attorney at the time he was questioned by the police, the Arizona Supreme Court ruled the Escobedo decision did not apply to Miranda’s case. The court upheld the conviction.

Upon appeal to the U.S. Supreme Court, the Court ruled in its decision that

the prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment’s privilege against self-incrimination.

Specifically,

The person in custody must, prior to interrogation, a) be clearly informed that he has the right to remain silent, and b) that anything he says will be used against him in court; c) he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during

interrogation, and d) that, if he is indigent, a lawyer will be appointed to represent him.

p.210

As a result of this decision, the conviction of Miranda was overturned, but Miranda did not go free. Prosecutors retried him for the rape and kidnapping without the original confession as evidence. At the new trial, Miranda’s common-law wife provided testimony that Miranda had earlier confessed to her about the rape. Miranda was convicted again and returned to prison.

THE CONTENT AND WAIVER OF MIRANDA WARNINGS

Miranda warnings consist of the following (see Exhibit 9.1):

• The right to remain silent

• The advisory that anything the suspect says can be used against her or him in court

• The right to have an attorney present during the interrogation

• The provision that if the suspect cannot afford an attorney, one will be appointed at no cost

Suspects must be informed of these rights when in custody and prior to questioning.

Exhibit 9.1

Exhibit 9.1

Example of a Miranda Waiver Form

As a result of the decision in Miranda, police departments usually require investigators to complete a Miranda waiver form like the one shown here prior to questioning a suspect.

Incident Number: ______________________________________ Defendant: ___________________________________

Address: ______________________________________________ Charge: ______________________________________

Constitutional Rights Miranda Warnings

_____ You have the right to remain silent. Anything you say can and will be used against you in a court of law.

_____ You have the right to talk to a lawyer and have him/her present with you while you are being questioned.

_____ You can decide at any time to exercise these rights and not answer any questions or make any

statements.

_____ At this time, I, ________________________, wish to waive my constitutional rights and agree to voluntarily provide a written statement to the Glendale Police Department. This statement is given voluntarily of my own free will and there have been no promises or threats made to me.

Signature _______________________ Date ________ Time _____

Witness _________________________ Date ________ Time _____ Title __________________

Statement:

Signature _________________________________

Page ___ of ___

p.211

There is leeway in how suspects can be informed of their rights. For example, the police do not have to give verbatim warnings as long as the suspect is advised of his or her rights and no limitations are placed on those rights (California v. Prysock, 1981). In Florida v. Powell (2010), the Supreme Court once again affirmed

that the Miranda warnings do not require precise language. Most important is that it is communicated to the defendant that she or he has the opportunity to consult an attorney prior to or during the interrogation. In addition, the order in which the warnings are read does not matter.

With regard to a suspect’s waiver of the Miranda rights, in Smith v. Illinois (1984) the waiver of some of the Miranda rights by the suspect was clear, but the waiver of others was ambiguous. When asked if he understood his right to consult with a lawyer and to have a lawyer present, Smith replied, “Uh, yeah. I’d like to do that.” Then after he had been read the rest of the warnings and asked if he understood them, Smith stated, “Yeah and no, uh. I don’t know what’s that, really.” The police continued to ask Smith questions, and he eventually made incriminating statements. The Supreme Court ruled the defendant’s request for counsel was not ambiguous and that all questioning should have stopped at that point. The statements made by Smith were not admissible.

In the case of Edwards v. Arizona (1981), Edwards was arrested on charges of robbery, burglary, and first-degree murder. At the police station he was informed of his Miranda rights and declined to talk to the police without an attorney present. The next day Edwards was once again given his

Miranda warnings, and he then implicated himself in the crimes. At his trial these statements were used, and Edwards was convicted. The Court ruled a suspect cannot be questioned again for the same offense after invoking his right to remain silent unless the suspect has consulted with a lawyer or initiates further communication, exchanges, or conversations with the police. Similarly, according to Arizona v. Robertson (1988), once a subject invokes his or her Miranda rights not to answer the questions of the police, the subject cannot be asked about other offenses or questioned by different law enforcement authorities. However, interestingly enough, the Supreme Court ruled that if a subject is out of police custody for fourteen or more days, the police can provide new Miranda warnings to the subject in an attempt to re-initiate questioning (Maryland v. Shatzer, 2010).

What if a suspect does not invoke his or her Miranda rights but a third party does so on the suspect’s behalf? Are incriminating statements provided by the suspect then admissible? In the case of Moran v. Burbine (1986), Burbine was arrested for murder and was held by the police. Burbine’s sister made arrangements for an attorney to represent Burbine while he was in custody, but Burbine was not aware of his sister’s actions. The attorney contacted the police and stated she would act as Burbine’s counsel. She was informed

by the police they would not question Burbine until the next day. Again, all these actions were unknown to Burbine. The police subsequently informed Burbine of his Miranda rights and he waived them. The police then questioned him about the murder and he confessed. What was most critical was that at no time did Burbine request an attorney. The Supreme Court ruled that neither the conduct of the police nor the respondent’s ignorance of the attorney’s efforts tainted the validity of the waiver of rights; the confession should not be excluded.

THE MEANING OF AN INTERROGATION AND CUSTODY

In Rhode Island v. Innis (1980), the Providence, Rhode Island, police arrested Innis as a suspect in the murder of a taxicab driver based on an eyewitness identification. Innis was advised of his Miranda rights. He said that he understood his rights and wanted to speak with an attorney. He was then placed in a car and driven to the station. During the drive one of the officers commented that there were “a lot of handicapped children in the area” because a school for such children was nearby. He further stated how horrible it would be if one of the children found the gun (used in the murder) and something happened. Innis then proceeded to tell the officers where the gun could be found. The Supreme Court ruled that the respondent

Robert Gauthier/Los Angeles Times via Getty Im-

ages

PHOTO 9.9 A police officer monitors five

was not interrogated in violation of his rights. The statements the officer made did not constitute express questioning or its functional equivalent, and the officer had no reason to believe his statements would lead to a self-incriminating response from the suspect. Subtle compulsion does not constitute an interrogation.

OPEN ACCESS VIDEO Working the “Grid” – Inter- viewing and Interrogation CLICK TO SHOW

JOURNAL From Police Interrogation to Priso n: Which Sex Offender Charac- teristics Predict Confession? CLICK TO SHOW

p.212

suspects in custody who are about to be questioned. Suspects must be told of their Miranda rights prior to questioning.

However, in the case of Brewer v. Williams (1977), the Supreme Court ruled the police had explicitly sought to obtain incriminating evidence from Williams with regard to his involvement in a kidnapping/murder. Knowing that he was a former mental patient and deeply religious, the officer called Williams “Reverend” and suggested the missing girl’s parents should be entitled to a Christian burial for their daughter, who was taken from them on Christmas Eve. Williams then showed the police where to find the girl’s body. The Court held that the “Christian burial speech” was an interrogation. The statements were not admissible as evidence, but the body of the girl was admissible (under the inevitable discovery exception to the exclusionary rule).

There are occasions in which the police speak to prisoners in jail or in prison. The Supreme Court has ruled an inmate is not in custody for Miranda purposes simply by being incarcerated. As in other situations, if the subject is free to end the questioning and leave the interview, the subject is not in custody, even if he or she is incarcerated (Howes v. Fields, 2012).

Other decisions have been rendered that

establish parameters for Miranda warnings. In the case of Massiah v. United States (1964), Massiah was arrested on drug trafficking charges, retained an attorney, pled not guilty to the charges, and was released on bail. A few days later, a coconspirator of Massiah decided to cooperate with government agents in their continuing investigation of Massiah. Incriminating conversations between Massiah and his partner were recorded using a radio transmitter and later used in court to obtain a conviction of Massiah. The Supreme Court held Massiah’s Fifth and Sixth Amendment rights were violated in that incriminating statements were deliberately obtained from him after he had been indicted and in the absence of retained counsel. The Court ruled once a suspect has been indicted and engaged an attorney, the police can no longer question him or her, even through a third party or coconspirator.

As ruled in Arizona v. Fulminante (1991), statements obtained as the result of implied duress and without the benefit of the Miranda warnings are not admissible. In this case, a paid police prison informant promised Fulminante he would provide protection from the other prisoners if Fulminante would tell him the truth about the abduction/murder of a child victim. Fulminante then confessed to the crime. He was convicted of murder, partially on the basis of this confession. The Supreme

Court ruled Fulminante’s confession was involuntary because it was motivated by fear of physical violence if he did not receive protection. As a result, the confession was not admissible at trial.

THE IMPLICATIONS OF SILENCE

What if a suspect remains silent after being informed of the Miranda rights? In the case of Berghuis v. Thompkins (2010), the police informed the suspect of his Miranda rights and attempted to question him, but he remained silent. After three hours of questioning, a detective asked the subject if he believed in God. The subject indicated that he did. He was then asked, “Do you pray for God to forgive you for shooting down that boy?” The suspect responded, “Yes.” This statement was used against the defendant at trial. The Supreme Court ruled that “after giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights.”

p.213

Does silence on the part of a suspect constitute evidence? It depends on the meaning, context, and form of silence. In Griffin v. California (1965), the Court ruled a prosecutor cannot comment to the jury that the defendant not testifying constitutes evidence (of guilt). Similarly, the police cannot comment to the jury that

the defendant invoked her or his Miranda rights to remain silent; silence does not constitute evidence. However, in Salinas v. Texas, the police interview of the defendant was noncustodial, so the Miranda warnings were not provided, nor were they invoked. When Salinas was asked a critical question by the police, he remained silent. In court the police testified as to his silence. The Supreme Court ruled in this case Salinas’s silence could be used against him in court because he did not invoke the privilege against self- incrimination. Interestingly, the right to remain silent does not mean that a subject can refuse to submit to a blood alcohol test; such a refusal is admissible in court (South Dakota v. Neville, 1983).

EXCEPTIONS TO THE MIRANDA WARNINGS

Certain circumstances exist under which it is legal not to inform suspects of their Miranda warnings. These circumstances may be thought of as exceptions to the Miranda requirement. In Berkemer v. McCarty (1984), the Supreme Court held the police do not have to provide Miranda warnings prior to the roadside questioning of a motorist because this does not constitute a custodial interrogation. However, any person who is subjected to custodial interrogation must be given Miranda warnings, regardless of the severity of the offense. The Court created

the public safety exception to the Miranda warnings when it ruled in New York v. Quarles (1984) that the police can ask a suspect about the location of a weapon without first informing the suspect of the Miranda rights. In the Quarles case, the gun posed a possible immediate danger to the public; the potential danger justified the officer’s failure to provide the Miranda warnings prior to questioning. The questioning was limited and the

statements were provided voluntarily.21

When a suspect is not aware he or she is speaking to a law enforcement officer (e.g., during undercover operations), the police are not required to provide the Miranda warnings to the suspect unless that suspect has previously invoked the warnings. Any voluntary statements made by a suspect are admissible (Illinois v. Perkins, 1990; Michigan v. Mosley, 1975).

THE IMPACT OF MIRANDA V. ARIZONA ON SUSPECT CONFESSIONS

As a result of the Supreme Court ruling in Miranda v. Arizona, the police thought confessions were a thing of the past. It was believed if suspects were told they did not have to talk to the police and that anything they said could be used against them, no one of sound mind would ever confess. However, most of the research that has examined the impact of Miranda on police ability to obtain confessions has shown

that the decision has had minimal impact, or at least much less impact than what was originally feared.

CAREER VIDEO Case Manager

To understand the impact of Miranda, at least two questions need to be considered. First, to what extent are confessions obtained by the police subsequently ruled to be inadmissible? Although research has not provided a precise estimate, the short

answer seems to be very few.22 If a suspect was informed of her or his rights and those rights were voluntarily and knowingly waived, then the requirements of Miranda were satisfied. Only if the methods used to obtain confessions are deemed coercive would a confession be ruled inadmissible; Miranda does not protect against coercive interrogation methods.

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Exhibit 9.2

Exhibit 9.2

Exceptions to the Miranda Requirement

The police must inform suspects of their Miranda rights when suspects are in custody of the police and prior to questioning, except when certain circumstances apply. These circumstances include the following:

• During roadside questioning of motorists

• When limited questions are asked in an attempt to protect public safety

• During undercover operations

• When statements are provided voluntarily by the suspect

RESEARCH SPOTLIGHT

Why People Waive TheirWhy People Waive Their Miranda Rights: The PowerMiranda Rights: The Power of Innocenceof Innocence

In a study published in 2004, researchers designed a laboratory experiment with 144 students as subjects in order to discover what proportions of guilty and innocent

subjects agree to answer the questions of the police and why suspects answer questions of the

police.24

Half of the students were instructed to commit a theft in a staged and controlled setting (taking $100 out of a drawer). The other half went through the same motions but did not take the money. Then each student subject was taken alone to a room where he or she met a “detective” (an actor in the experiment). The detective explained to each subject that he wished to ask questions about a theft that occurred. The subject was then provided a waiver form and asked if he or she was willing to answer questions or not. No interrogation or questioning by the detective actually occurred for any subject in the experiment. Subjects were then asked questions by the researcher about their decision to answer questions or not.

With regard to the first question, it was found that, overall, 58% of the subjects agreed to answer the questions of the detective, but innocent subjects were much more likely to agree than guilty subjects: 81% compared to 36%. With regard to the second question, the most

common reason expressed by guilty subjects for being willing to answer the questions of the detective was either “If I didn’t, he’d figure I was guilty” or “I would’ve looked suspicious if I chose not to talk.” The most common reasons expressed by innocent subjects for agreeing to answer questions were “I did nothing wrong” and “I didn’t have anything to hide.”

The authors explain that only innocent subjects are at risk of false confessing, and the only way in which this can happen is if these subjects waive their Miranda rights and answer the questions of the police. Other studies and DNA exoneration cases show that false confessions do happen. As demonstrated in this study, Miranda warnings do not prevent innocent subjects from allowing interrogations to proceed. According to the researchers, “These results indicate that people have a naïve faith in the power of their own innocence to set them free. Our results suggest the ironic conclusion that during the early stages of a criminal investigation, innocence may

put innocents at risk.”25

Second, to what extent are confessions (and convictions) not obtained by the

police because of Miranda? This question is more complicated than the first because it must be understood that perhaps a confession was not obtained because there was no confession to give (i.e., the person who was interrogated did not commit the crime). It is not possible to determine with certainty whether or not a person who is interrogated but does not confess is actually guilty or innocent of the crime in question, especially if the crime remains unsolved. Nevertheless, studies have shown that most subjects (78% to 84%) agree to answer the questions of the police even after being told that they do

not have to.23 The Miranda warnings do not appear to prevent subjects from answering the questions of the police.

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MAIN POINTS

• An arrest occurs when the police take a person into custody for the purposes of criminal prosecution and interrogation. A person who is in custody of the police is not free to leave. If a subject has been arrested they are in custody, but a person who is in custody may not be under arrest.

• A search is a governmental infringement into a person’s reasonable expectation of privacy for the purpose of discovering evidence for use in a criminal prosecution.

• The intent of the Fourth Amendment is to protect individuals’ privacy and protect against arbitrary intrusions into that privacy by government officials.

• The general rule is that the police need a search warrant to conduct a legal and valid search and that warrant is to be based on probable cause. However, there are many exceptions to this rule. In fact, most searches conducted by the police are conducted without a warrant; the most common of these searches are consent searches.

• The exclusionary rule holds that if the police collect evidence illegally, that evidence is to be excluded from court proceedings. However, there are exceptions to the rule, the most common of which is the good faith exception.

• The purpose of the exclusionary rule is to deter police misconduct in search and seizure cases, but there are ways of “getting around”

the rule that limit its effectiveness.

• The Fifth Amendment to the Constitution protects against self- incrimination; the Sixth Amendment provides the right of the accused to be represented by an attorney in criminal proceedings.

• The police must inform a suspect of his or her Miranda rights when the suspect is in custody of the police and prior to interrogation by the police. There are several circumstances in which the police do not need to inform suspects of their Miranda rights.

• Research shows that the impact of Miranda on police ability to obtain confessions is minimal.

IMPORTANT

TERMS

Arrest 195

Arrest warrant 195

Chain of custody 196

Consent 195

Custodial interrogation 213

Exclusionary rule 206

Exigent circumstances exception 1 98

Hot-pursuit exception 202

Knock and talk search 206

Miranda warnings 210

Other places exception 202

Plain view exception 205

Pretext traffic stop 201

Search 195

Search incident to arrest exception 202

Search warrant 196

Seizure 195

Stop and frisk exception 204

Vehicle exception 199

QUESTIONS FOR

DISCUSSION

AND REVIEW

1. Explain why a subject can be in custody but not under arrest. Explain why a person could be placed in handcuffs by the police but not be under arrest.

2. What is the chain of custody and why is it important?

3. What is a search? What is necessary for the police to obtain a search warrant?

4. The police need to conduct a search of a suspected crime scene

inside a house. Under what circumstances could they do so without a warrant?

5. Under what circumstances is a search warrant not required to conduct a search? What is the reason or rationale for each exception to the search warrant requirement?

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6. What is the purpose of the exclusionary rule? Is the exclusionary rule effective in this regard?

7. What impact does the exclusionary rule have on criminal investigations and the criminal justice process? Why?

8. What is an interrogation from the perspective of the Fifth Amendment?

9. What are the Miranda warnings? When must they be provided to suspects? When do they not need to be provided?

10. What has been the impact of Miranda on criminal investigations and the criminal justice process? Why is this the case?

FACT OR

FICTION

ANSWERS

1. Fiction

2. Fiction

3. Fiction

4. Fiction

5. Fiction

6. Fact

7. Fiction

8. Fact

9. Fact

10. Fiction

DIGITAL

RESOURCES

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