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4.5: The Legal Environment of Policing

Criminal Justice | Section 4.5: The Legal Environment of Policing

Section 4.5: The Legal Environment of Policing

Criminal law is often used as a very general term to describe the entire body of law

that is of concern to the criminal justice system. Recall that the two major parts are

substantive criminal law and procedural criminal law. The substantive criminal law

consists largely of statutes that de�ne criminal acts. The procedural criminal law

dictates how the criminal justice system should treat people. Because the police are

the gatekeepers of the criminal justice system and come into contact with citizens

far more often than any other component of the criminal justice system, the law of

criminal procedure has more to say about how the police treat people than any

other topic.

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Criminal procedure, then, can be seen as a branch of law that dictates how the

government investigates, prosecutes, judges, and sentences those accused of

crimes. The bulk of this law is a matter of interpreting the Constitution of the

United States. When it comes to how the police must treat people, the most

important body of law stems from the Bill of Rights. The Supreme Court of the

United States interprets the Bill of Rights, and that court has the power to establish

police practice in the �eld. There are also state constitutions, statutes, and

administrative rules that circumscribe police conduct. These are also part of the

body of procedural law. Perhaps the most important laws that concern police

conduct are the Fourth and Fifth Amendments of the United States Constitution.

The Fourth Amendment states that:

“The right of the people to be secure in their persons, houses, papers and e�ects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or a�rmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fifth Amendment states that: “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 guarantees the right to a public and speedy trial, as well as

the right to the assistance of counsel. The right to counsel is protected at many

stages of the criminal justice process, not just at trial. Criminal defendants have the

right to an attorney during custodial interrogations, for example.

The Fourteenth Amendment requires the States to observe the due process

standards set forth in the federal Constitution as interpreted by federal appeals

courts. This gives the federal appellate courts the authority to consider the

constitutionality of acts of government agents employed by the state such as police

o�cers and corrections o�cers. It also gives the high courts the authority to review

the constitutionality of state statutory laws. Not all federal constitutional rights are

considered to be due process rights, so some protections are not forced on the

states. For example, many states do not observe the right to an indictment by a

grand jury; they use a system of prosecutorial information instead.

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The Right to Privacy

To understand how the Constitution of the United States limits criminal law, it is

important to consider the right to privacy. Shockingly, the term “privacy” never

appears in the Constitution. Yet, over the years, the Supreme Court has said that

several of the rights that are explicitly stated in the constitution come together to

create a right to privacy. In the world of procedural law, it must be remembered, if

the Supreme Court of the United States says it, it is so.

The right to privacy places a limit on many forms of police conduct, from searches

to arrest. It is important, however, to understand there is a limit to how far the right

goes. It is not absolute. The police are not prohibited from interfering with a

citizen’s privacy interest, but it must be reasonable when they do so.

When it comes to the police conducting searches of people, vehicles, homes, o�ces

and anywhere else a person has a right to privacy, the idea of reasonableness comes

down to probable cause. Probable cause means that there is su�cient evidence to

make a reasonable person would believe that the person is doing something

contrary to the law.

Searches

Police activity that the courts consider a search must be based on probable cause,

but remember that the courts de�ne a search di�erently than the everyday use of

the term. There are many exceptions to the probable cause requirement that, while

the average person may consider the police conduct a search, it is not considered so

by the courts. Objects in plain view, for example, are not subject to the probable

cause standard, nor are things located in open �elds. When the probable cause

standard does apply because the courts consider a particular police action a search,

the police are not allowed to determine if there is in fact probable cause. That job

goes to the courts.

Search warrants

An o�cer desiring to conduct a search needs probable cause for the search to be

lawful. Because society expects police o�cers to �nd evidence and arrest criminals,

they may be overzealous in determining whether they do or do not have probable

cause. As a general rule, the evidence establishing probable cause must be

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submitted to an impartial magistrate, and if the magistrate agrees that probable

cause exists, then he or she will issue a search warrant.

P R O B A B L E C A U S E

For a warrant to be issued, the magistrate must determine that probable cause

exists. This has to be in the form of a sworn statement called an a�davit. When

determining probable cause for a search, the reasonableness test used by the courts

considers the experience and training of police o�cers. That is, the test is not

merely what a reasonable person would believe, but what a reasonable police

o�cer would believe in light of the evidence as well as the o�cer’s training and

experience. Note that the standard for establishing probable cause is more likely

than not. This is a far lesser standard than the proof beyond a reasonable doubt

standard required for a conviction in criminal court.

T H E P A R T I C U L A R I T Y R E Q U I R E M E N T

Another requirement for a search warrant to be valid is that it must particularly

describe the person or thing to be seized. There are many supreme court cases that

establish what this means in particular circumstances. As a general rule regarding

search warrants, it means that the place to be searched is su�ciently described that

it cannot be confused with some other place.

O B T A I N I N G A N D E X E C U T I N G A S E A R C H W A R R A N T

The warrant application process varies in exact detail from jurisdiction to

jurisdiction. Often, the Supreme Court of the state in which the warrant is sought

provides the details in a legal document known as the Rules of Criminal Procedure.

The basic rules, however, are dictated by the Supreme Court as interpretations of

the Fourth Amendment. All of the o�cer’s evidence must be contained in an

a�davit. The rules also dictated how a warrant must be executed. As a general rule,

the warrant must be served during daylight hours, and o�cers must identify

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themselves as o�cers and request entry into the place to be searched. This

identi�cation requirement is known as knock and announce.

N O - K N O C K W A R R A N T S

The general rule that o�cers must “knock and announce” when serving a warrant

is not absolute, but special permission from a judge must be obtained before it can

be lawfully circumnavigated. A no-knock warrant can be issued have a legitimate

fear that announcing their presence would endanger lives or give criminals time to

destroy evidence. Such a warrant authorizes law enforcement to break down doors

without warning and to enter a structure. These types of warrants are controversial.

Civil liberty advocates say that such warrants violate the spirit of the Fourth

Amendment. Police defend such warrants on the grounds that they save lives and

very frequently result in the seizure of contraband.

Searches Without Warrants

There are several exceptions to the general requirement that o�cers must obtain a

search warrant for a search to be legal. The Supreme Court has determined

that exigent circumstances justify an exception to the rule. Exigency is another

word for an emergency. Thus an exigent circumstances search is an entry into a

place that would otherwise require a warrant but for the emergency situation.

Another common warrantless search is a consent search. Most of the rights

guaranteed by the constitution can be waived by the person that has the right. If a

person gives the police permission to search, so long as the permission is given

voluntarily, then there is no violation of the person’s Fourth Amendment rights. A

shocking amount of criminal convictions come as a result of consent searches.

Many criminals do not do what is in their legal best interest. According to the

Supreme Court of the United States, the police are not obligated to inform citizens

that they have the right to refuse consent. Some state courts (e.g. Arkansas),

however, have interpreted state constitutions to give this right.

Another exception to the general requirement that police have a warrant to conduct

a search is known as a hot pursuit search. If an o�cer chases an o�ender into a

private place, there is no legal requirement that the o�cer break o� the pursuit. If

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contraband is discovered in such a pursuit, it can be seized and will be admissible in

court.

Most of the exceptions to the warrant requirement above do not, for one reason or

another, require probable cause. An automobile search is an interesting hybrid

because it does require probable cause to obtain a warrant, even though the o�cer

is not obligated to actually obtain the warrant. The court allows this compromise

because of the inherent mobility of vehicles. The criminal suspect could simply

drive away if the o�cer were required to leave the scene and go obtain a warrant.

Merely citing the driver for a tra�c violation, however, is not su�cient to establish

probable cause for a lawful search.

To preserve evidence and to protect o�cers from hidden weapons, o�cers are

allowed to search a person after they have been arrested. Such a search is known as

a search incident to arrest. As an extension of this idea, the o�cer may search the

area immediately surrounding the arrested person. That is, the area immediately

under the arrestee’s control. The Court has ruled the fact that the suspect is in

handcu�s and could not reach for a weapon is immaterial.

Arrests

The Supreme Court has determined that an arrest is a seizure of the person for legal

purposes. Accordingly, the Fourth Amendment prohibition against unreasonable

searches and seizures comes into play. A person is generally considered to have

been arrested when they are taken into custody with the purpose of being charged

with a crime.

Most arrests are made without arrest warrants, despite the constitution’s general

requirement that o�cers have one. Under all circumstances, an o�cer must have

probable cause to make an arrest. When it comes to arrests, probable cause means

that the o�cer has reasonable grounds to believe that the person has committed or

is about to commit a crime. When a warrant is sought, the supporting evidence

must be included in an a�davit, just as with a search warrant.

The old common-law rule was that an o�cer could make an arrest, without a

warrant, if he believed he had evidence amounting to probable cause that the

person had committed a felony. In the case of a misdemeanor, the crime had to be

committed in the o�cer’s presence. These same basic common law rules are still

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followed in many jurisdictions today. Many jurisdictions, however, have created

special rules where misdemeanors that the o�cer did not witness directly (such as

with many domestic battery statutes) can result in lawful arrests without a warrant.

Such rules are usually created by state legislatures as a matter of statute.

Arrest Warrants

As previously described, an arrest warrant is a document issued by a court ordering

any law enforcement o�cer to take a particular individual into custody. While there

are many exceptions, there are times when a warrant is required to make a lawful

arrest. To enter a person’s home to make an arrest, the police must have an arrest

warrant. (To enter the home of someone other than the person to be arrested to

make an arrest, the police must have a search warrant). Of course, the exigent

circumstances exception can be applied to arrest warrants just as it can with search

warrants.

Domestic Violence Arrests

Social scienti�c research has resulted in at least some evidence that arresting

the primary aggressor in domestic violence cases prevents further battering. This

research spawned legislation in many states that require police to identify and

arrest the primary aggressor in domestic violence situations. While these o�enses

are generally classi�ed as misdemeanors, these special legislative enactments

command law enforcement to take the primary aggressor into custody despite not

having a warrant or having seen the crime take place. Despite such laws being in

place in many jurisdictions since the 1970s, many police departments do a poor job

in dealing with domestic violence cases.

Terry Stops

Making an arrest is a substantial interference with a citizen’s constitutionally

protected freedom. As such, it requires probable cause. The courts have ruled that

there are sorts of intrusions that are less than an arrest, and thus require a lesser

standard of evidence. Because the Supreme Court described this sort of situation in

a 1968 case styled Terry v. Ohio, these types of “stops” are often referred to as Terry

stops. In Terry, the court said that the police have the right to stop individuals for a

short period of time when their behavior seems suspicious, ask them questions, and

pat them down for weapons. This type of stop is also known as a stop and frisk. The

evidentiary standard set forth in Terry was less than probable cause, but more than

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a mere hunch. The court called this standard reasonable suspicion. Unlike

courtroom testimony, reasonable suspicion can be based on hearsay.

The Exclusionary Rule

As previously discussed, the Supreme Court of the United States can tell law

enforcement o�cers how to treat people as long as they have a constitutional

reason for doing so. What happens if the cops do not listen to the Court and violate

somebody’s rights? There are several remedies, but the most important one to the

criminal justice system is the exclusionary rule. The exclusionary rule is very simple.

It states that illegally obtained evidence cannot be admitted into a criminal court.

Here, illegally obtained means obtained in violation of the defendant’s

constitutional rights. In practice, the defendant’s attorney must �le a motion to

suppress the evidence before trial. The judge will then review the evidence, and if

the judge determines that it was obtained in violation of the defendant’s rights, it

will be suppressed, and the jury will never see the evidence. Its existence cannot

even be mentioned at trial.

The exclusionary rule was established by the U.S. Supreme Court in 1914 in the case

of Weeks v. U.S. At that time, the rule only applied to Federal agents. States were on

their own to decide whether to allow illegally obtained evidence into state courts. It

was not until 1961 in Mapp v. Ohio that the Court decided that the exclusionary rule

was fundamental to a fair trial and was thus applicable to the state via the

Fourteenth Amendment’s due process clause. The liberal Warren Court

decided Mapp. Since the time of the Warren court, the Supreme Court has become

more and more conservative. Conservative justices, while not willing to overrule the

basic premise of the exclusionary rule, have eroded it by creating various

exceptions. For example, in the 1984 case of U.S. v. Leon, the court created a good

faith exception. The good-faith exception states that if the police are acting on a

warrant they believe to be valid and a court later determines that the warrant is

invalid, the evidence can still be used in court.

The Fifth Amendment

The common expression “to plead the �fth” refers to the Fifth Amendment to the

United States Constitution. The Fifth Amendment gives criminal defendants the

right to remain silent and thus is a right against self-incrimination. The Fifth

Amendment has an enormous impact on the practice of police interrogations.

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In the days before the civil rights revolution, the police would use any means

necessary to gain a confession. Torture, both physical and psychological, was

shockingly common. Threats were often used. The problem with confessions made

under such duress is those innocent persons may well confess to crimes simply to

make the pain stop. The �rst major case prohibiting this sort of conduct was Brown

v. Mississippi (1936).

The right against self-incrimination is not as broad as it may �rst seem. It applies

only to confessions. That is, communications that are considered “testimonial” in

court. The protection does not extend to physical evidence, so a suspect can be

compelled to give �ngerprints, DNA samples, blood tests, blood alcohol tests, and

so forth. Just as with most constitutional rights, a person can knowingly and

voluntarily waive the right to remain silent. If it were not for such waivers, the art of

interrogation would hold little value for police.

C O N F E S S I O N S A N D C O U N S E L

The Court has linked the Fifth Amendment right against self-incrimination to the

right to counsel. In the case of Escobedo v. Illinois (1964), the Court ruled that when

police questioning moves from merely investigatory to accusatory in nature, the

right to counsel becomes active. In other words, once a witness develops into a

suspect, then the right to comes into play.

M I R A N D A W A R N I N G S

Ultimately, the court was not satis�ed with the scope of the protections set forth

in Escobedo. Two years later, the court established speci�c interrogation procedures

to ensure the Fifth Amendment rights of criminal defendants in Miranda v.

Arizona (1966). In this landmark case, a man named Miranda confessed to

kidnapping and rape. Police obtained the confession without a lawyer being present

and without advising Miranda that he had the right to remain silent. The Court held

that Miranda was entitled to such a warning, and thus his confession was

inadmissible.

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The decision in Miranda reached far beyond Miranda’s case. It obliged every police

o�cer in America to advise suspects if their rights before asking them questions

while in custody. In addition to being advised of the right to remain silent, suspects

must be advised that anything that they do say can be used against them in court,

that they have the right to an attorney, and that if they cannot a�ord an attorney

they will be provided one by the state. Of course, the suspect may knowingly and

voluntarily waive any or all of these rights. The right to remain silent can be

invoked at any time. In other words, even if suspects waive their right to remain

silent, they can stop the questioning at any time, and must be provided with a

lawyer if they so request.

Many police o�cers and conservative commentators at the time

regarded Miranda as a legal technicality created by the courts to handcu� the police.

On several occasions, increasingly conservative courts have refused to

overrule Miranda, but they have weakened it by creating several exceptions to it. For

example, in New York v. Quarles(1984), the Court created a public safety exception.

The public safety exception allows o�cers to ask questions without giving

the Miranda warnings if there is some exigency involving the public safety is

involved. In Nix v. Williams (1984), the court created the inevitable discovery

exception. This controversial exception means that if the police would have

inevitably discovered the evidence without the bene�t of the improper questioning,

then the evidence will be admissible.

There are many situations in which the person may not necessarily feel free to

leave, but they are not in “custody” for Miranda purposes. For example, Miranda

does not come into play when the police stop a person to (brie�y) talk to them on

the street, or during tra�c stops. Other circumstances do not

invoke Miranda because there is no questioning of the suspect involved. For

example, if a person confesses to an o�cer without the o�cer asking any

questions, then Miranda does not apply.

Police Use of Force

Police o�cers have the lawful authority to use force, but only if that force is

reasonably necessary to accomplish a legitimate criminal justice purpose.

Obviously, taking a person into custody by making an arrest, or preventing a

suspect from �eeing are examples of legitimate criminal justice purposes. Most

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questions about the legitimacy of police use of force revolve around the

reasonableness of it. If too much force is used, then the use of force will not be

lawful. The problem is that de�ning how much force is necessary for a given

situation is a highly subjective process. When the police use more force than

someone regards as reasonable in a given situation, it is often referred to as police

brutality.

Civil Liability and Criminal Prosecution

When the police go beyond reasonable, legitimate use of force, they risk lawsuits

and criminal charges. Under the laws of most states, individual police o�cers can

be sued for torts, such as wrongful death and false imprisonment. There are also

federal remedies in place, such as 1983 suits.

Deadly Force

As one would expect, police o�cers have the legal right to use deadly force (most

often a shooting) when they reasonably believe that they are in imminent danger of

serious bodily harm or death. That right extends to the protection of others. Until

the court’s decision in Tennessee v. Garner (1985), many jurisdictions subscribed to

the idea of the �eeing felon rule. The �eeing felon rule was the common law doctrine

that allowed an o�cer to use deadly force to apprehend a felon that was seeking to

escape custody or a lawful arrest. In Tennessee v. Garner, the court struck down a

Tennessee statute stating “if, after notice of the intention to arrest the defendant,

he either �ee or forcibly resist, the o�cer may use all the necessary means to e�ect

the arrest.” This, in e�ect, declared the �eeing felon rule unconstitutional. With the

abolishment of the �eeing felon rule, the standard becomes one of dangerousness.

Law Enforcement Jobs Outlook

According to the Bureau of Labor Statistics (2013), the median income for police

o�cers and detectives in 2010 (the most recent statistics available) was $55,010 per

year (or $26.45 per hour). There were 794,300 such jobs in the United States, and

the expected growth rate over the next decade is projected to be around 7%. Of

course, this does not re�ect the fact that local political and economic conditions are

a major factor in any particular agency’s decision to hire new o�cers. The

prediction is that local agencies will do most of the new hiring, and that federal jobs

will remain very competitive. According to the BJS, average starting salaries for

entry-level local police o�cers in 2007 ranged from $26,600 per year in the

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smallest jurisdictions to $49,500 in the largest. Overall, the average starting salary

earned by entry-level o�cers was about $40,500. More than 90% of local police

departments serving 25,000 or more residents were using in-�eld computers

during 2007. This suggests that those looking to careers in law enforcement should

develop computer skills.

Key Terms

1983 Suit, A�davit, Arrest Warrant, Automobile Search, Brown v.

Mississippi (1936), Consent Search, Escobedo v. Illinois (1964), Exigent

Circumstances Exception, Fleeing Felon Rule, Hot Pursuit Search, Inevitable

Discovery Exception, Knock and Announce, Mere Hunch, New York v.

Quarles (1984), Nix v. Williams (1984), No-knock Warrant, Open Fields Doctrine,

Particularity Requirement, Plain View Doctrine, Police Brutality, Primary

Aggressor, Public Safety Exception, Reasonable Person Test, Reasonable

Suspicion, Remedy, Right to Remain Silent, Rules of Criminal Procedure, Sixth

Amendment, Stop and Frisk, Tennessee v. Garner (1985), Terry Stop, U.S. v.

Leon (1984), Weeks v. U.S. (1914)

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