WK1 DISCUSSION QUESTION - CRIME SCENE RATIONALE

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Joe Raedle/cetty lmages News/cetty lmages

OBJECTIVES

After reading this chapter you will be able to:

• Discuss the qualities that evidence must have in order for it to be admissible in court.

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

• Define the exclusionary rule and explain its impact on criminal investigations and the criminal justice process.

• Identify the Miranda warnings and describe circumstances under which the police must notify suspects of their Miranda rights.

• Discuss the role of arrest warrants and search warrants in the criminal investigation process.

• Identify the ways the police may attempt to "get around" the Fourth Amendment.

• Discuss the impact of the Miranda requirement on criminal investigations and the criminal justice process. • Define interrogation from

the perspective of the Fifth Amendment.

• Discuss the exceptions to the search warrant requirement.

From the CASE'; FILE Ernesto Miranda'§Confession

Miranda v. Arizona (1966) is perhaps the most well­ known U.S. Supreme Court case ever decided. If a person knows of any Supreme Court case, this is probably the one. It is also the case most applicable in law enforcement; in just about every investigation in which a suspect is identified, Miranda applies. However, despite being so well known and frequently cited, the case is often misunderstood. The Miranda decision was also extremely controversial. When Miranda warnings were first instituted, the police thought suspects were never again going to confess to the crimes they committed. The police and many law-abiding citizens believed the Supreme court went too far in its protection of criminals' rights. Most incredibly, there were calls for the impeachment of the Supreme Court justices who were in favor of the law; it is difficult to identify another case in which that happened. Given the prominence of the Miranda decision in the conduct of criminal investigations, it is important to consider more closely the details of the investigation that gave rise to the Miranda warnings.

In the early morning hours of March 3, 1963, in Phoenix, Arizona, eighteen-year-old Kathy Midare (not her real name) was on her way home after working the evening shift at a local movie theater. It was about 12:10 a.m. when she got off the bus to walk the remaining short distance to her home. As Kathy was

walking, a car stopped about a block in front of her, and a man got out of the car and walked toward her. The man grabbed Kathy, put his hand over her mouth, and dragged her to his car. Once in the back seat of the car, the man tied her hands behind her back and then tied her ankles. He drove for about twenty minutes to the desert and then raped her in the back seat of the vehicle. He took $4 from her then drove her back to the city and let her out of his car a half mile from her house. He then drove off.

The police were notified of the incident by Kathy's sister, who was home when Kathy arrived. Kathy told the police that the man appeared to be in his late twenties, was Mexican, had a scant mustache, was about 6' tall, and weighed about 175 pounds. He had short, black curly hair and was wearing blue jeans, a white shirt, and glasses. She described the car as either a Ford or a Chevy and said that it was light green with brown upholstery. She noted that a loop of rope was hanging from the back of the front seat of the car. The statement she provided to the police was confusing, but Kathy was mentally disabled.

on March 11, as the police were looking for the man who attacked Kathy, her brother-in-law notified the police that two days earlier he and Kathy had seen a green car in the neighborhood that Kathy said looked

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like the one driven by the attacker. He was able to provide the police with a partial license plate number and said the make of the car was a Packard. After some searching the police were able to determine the owner of the car was a Phoenix resident named Twila N. Hoffman. Upon checking the address of the woman, the police learned she and her live-in boyfriend had just recently moved out of the house. on March 13 the police tracked down the woman at her new address and found the green Packard in the driveway. In looking inside the car, an officer saw a loop of rope hanging from the back of the front seat, just as described by Kathy.

The pol ice found Ernesto Miranda asleep in the house. Miranda was twenty-three years old and, it was quickly learned, had a long history of delinquent and criminal behavior. The police arrested Miranda, transported him to police headquarters, and placed him in a lineup with three other Mexican Americans to be viewed by the victim. Kathy could not positively identify Miranda as the perpetrator. In the interrogation room, however, police told Ernesto that he had been identified by the victim. After two hours of questioning, he confessed to the kidnapping and rape of Kathy Midare 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 following disclaimer was at the top of the paper: "I, (Ernesto A.

Miranda), do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights, understanding that any statement may be used against me."1 The confession provided by Miranda was similar to the account provided by his victim.

At the trial, which took place June 20, 1963, the prosecutor presented Miranda's written confession, along with testimony from the victim, her sister, and the two police officers who found and questioned Miranda. The defense did not present any witnesses or evidence. The confession was admitted in court despite the objections of Miranda's court-appointed attorney, who argued to the judge that 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 upon arrest, and therefore the confession was legally obtained and admissible. The jury found Miranda guilty of rape and kidnapping, and he was sentenced to twenty to thirty years in prison.

CRIMINAL INVESTIGATION

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 sentence in prison, the U.S. Supreme court ruled in the case of Escobedo v. Illinois (1964) that 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. The court upheld the conviction.

In June 1965 a request for review of the case by the U.S. Supreme court was made by Miranda's new defense counsel. In writing the appeal, the attorneys framed the legal issue of the case as being whether a suspect needs to be explicitly informed of his or her right to counsel by the police or if suspects should simply know those rights without being advised of them. The court issued its decision on June 13, 1966. Chief Justice Earl Warren wrote the sixty-page opinion for the five-member majority. The court ruled that

the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; 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 that, if he is indigent, a lawyer will be appointed to represent him.

As a result of this decision, the conviction of Miranda was overturned, but Miranda did not go free. Prosecutors who won the original case against Miranda decided to retry him on 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 received the same sentence of twenty to thirty years. Miranda was released on parole in 1972 after serving a total of nine years for the crimes committed against Kathy Midare.

During the following years, Miranda was cited on several occasions for driving and traffic violations and once for being in possession of a firearm. For this arrest (and violation of parole) he was sent back to prison for a year. In January 1976, after being released from prison, Miranda got into a fight in a bar, apparently over $5, and was stabbed to death. Ernesto Miranda was thirty-six years old. No arrests for his murder have been made.2

Chapter 4 • The Law and Criminal Investigations 61

PHOTO 4.1: Ernesto Miranda, the man responsible for the Miranda warnings.

Case considerations and Points for Discussion

1. With regard to the investigation, what was the most

important evidence in the case that led to the initial

identification of Miranda as a suspect in the rape of

Kathy Midare?

3. How did the two Supreme court decisions of Gideon v. Wainwright (1963) and Escobedo v. J/linois (1964) relate

to the decision made in Miranda v. Arizona (1966)7

2. What role did Miranda's confession to the police have in solving the crime? How important was the

confession in obtaining the initial conviction?

4. The supreme Court provided two "qualifiers," or

circumstances, as to when the police must inform suspects of their Fifth Amendment rights. What are

these two circumstances?

• • • Basic Legal Terminology Before proceeding to a discussion of the qualities of evidence and the legal procedures involved in collecting evidence, it is necessary first to understand some basic legal terminol­ ogy. The concepts of arrest, arrest warrant, search, and search warrant are discussed here.

First, an arrest occurs when the police take a person into custody for the purposes of criminal prosecution and interrogation (Dunaway v. New York, 1979). If a person is under arrest, that person is in custody of the police. However, a person can be in custody of the police but not under arrest. To be in custody simply means that the person is deprived of his or her freedom, if only the freedom to leave. To be in police handcuffs does not necessarily mean to be under arrest, but a person in handcuffs is most likely in 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. To place a person under arrest, there must be probable cause that a crime occurred and that the person in cus­ tody committed it. The surest way to know if a person is in custody is if that person is not free to leave. Citizens in custody have certain protections from the police that people who are under arrest do not have. In addition, citizens who are in custody or under arrest must be told of their Fifth Amendment rights (i.e., Miranda rights) prior to questioning.

Arrest: An arrest occurs when the pol ice take a person into custody for the purposes of criminal prosecut ion and interrogation.

Custody: Generally speaking, a person is in custody of the police if that person is not free to leave.

62 CRIMINAL INVESTIGATION

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.

There are occasions in which the police speak to prisoners in jail or in prison. The Supreme Court has ruled that an inmate is not in custody for Miranda purposes simply by being incar­ cerated. As in other situations, if the subject is free to end the questioning and leave the inter-

view, the subject is not in custody, even if he or she is incarcerated (Howes v. Fields, 2012).

The Bottom Line Second, an arrest warrant is a document approved by a judge or magistrate and provided to a law enforcement officer that authorizes the arrest of the named person believed to have committed an identified crime. The over­ whelming 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 ( 1) the police must enter a home to make an arrest, although if there are exi­ gent circumstances or consent is given, the police do not need a warrant to enter or to make an arrest, and (2) when the police seek to make an arrest of a subject in a third party's home, although, again, if there are exigent circum­ stances or consent given by the third party to enter the home, the police do not need an arrest warrant. By matter of policy, many police departments require that investigators obtain arrest warrants prior to making arrests in situations where time is less of an issue than when an officer is confronted with a criminal incident and suspect on the street. In any case, arrests and arrest warrants must be based on probable cause that a crime occurred and that the person to be arrested committed that crime. The arrest warrant must be issued by a neutral and detached magistrate, and it must name the accused or provide a specific description of the person so that his or her identity is not in question.

When Is an Arrest warrant Necessary?

An arrest warrant is necessary when the police enter a home to make an arrest unless there

are exigent circumstances that make immediate police action necessary or the police obtain consent to enter the home. When the police enter the home of a third party to arrest a suspect, the police are

also required to have a search warrant to enter that home, unless exigent circumstances exist or consent has been obtained by the third party to enter and search the home.

Third, a search can be defined as a governmental infringement into a per­ son's reasonable expectation of privacy for the purpose of discovering things that could be used as evidence in a criminal prosecution (Katz v.

Arrest warrant: A document issued by a judge that authorizes the arrest of an ind ividual.

Search: 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 crimina l prosecution.

Search warrant: A document issued by a judge that authorizes a search of a person, place, or veh icle for purposes of seizing evidence.

United States 1967). A reasonable expectation of privacy exists when a person believes his or her activity will be private and this belief is reasonable (Katz v. United States 1967). A seizure is an act of the police in taking control over a person or thing (e.g., weapon, evi­ dence). Nearly all searches must be based on probable cause, although, as discussed later, there are exceptions.

Last, a search warrant is similar to an arrest warrant except that it specifies the per­ son, place, or vehicle to be searched and the types of items to be seized by the law enforcement authority. Similar to arrests, most searches are conducted without a warrant.

When obtaining a valid search warrant, several requirements must be satisfied:

• The search warrant must be based on probable cause (Franks v. Delaware, 1978).

• The facts must be truthful (Illinois v. Gates, 1983).

• Probable cause cannot be based on stale information (United States v. Leon, 1984).

• Probable cause must be determined by a neutral and detached magistrate

(Coolidge v. New Hampshire, 1971).

• The search warrant must be served immediately.

• The search warrant must identify what is to be seized and what is to be searched (Maryland v. Garrison, 1987; United States v. Leon, 1984 ).

Chapter 4 • The Law and Criminal Investigations

PHOTO 4.2: The police need a search warrant to conduct a search unless the search involves a situation in which a warrant is not necessary. Most searches involve one of these situations; as a result, most searches are conducted without a warrant.

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There are generally three documents in a search warrant application. First is the search warrant itself. Second is the affidavit that provides facts to estab­ lish the probable cause needed to support the warrant. Third is the search warrant inventory and return, which are completed after the search warrant has been executed and identifies the items seized. These documents are filed with the court that issued the warrant.

The Bottom Line

• • • The Rules and Admissibility of Evidence All evidence admitted into court for consideration by a judge or jury must have certain qualities. First, all evidence must be relevant. If evidence is rele­ vant, then the evidence has some bearing on the case or on some fact that is trying to be established. For example, in one case child pornography discov­ ered on a suspect's computer was considered relevant in a child kidnaping case, but "Peeping Tom" videos made by the suspect that showed adult women were ruled by the judge to not be relevant to the case.

When Is a search warrant Necessary?

A search warrant is

necessary whenever an

exception to the search

warrant requirement

does not apply. These

exceptions can include

incidents involving exigent

circumstances, vehicles,

other places and things,

hot pursuit, search incident to arrest, stop and frisk,

plain view, and consent (as

discussed in detail later in

the chapter).

Second, all evidence must be material. Evidence is material if it is significant. Evidence is material if it makes the existence of a fact more probable than it appeared prior to the introduction of the evidence. If evidence is material, then it may influence the issue at hand-the point trying to be established. For example, in the kidnapping case mentioned above, testimony about the missing girl's fingerprints being found in the suspect's house was ruled to be material as the prints could influence the determination that the girl was in the suspect's house. The determination as to relevance and materiality of evidence is made by judges and depends heavily on the particular facts of the case.

Relevant evidence: Evidence that relates to the case at hand.

Material evidence: Evidence that is significant and can help prove a fact.

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Competent evidence: Evidence that is valid and of quality.

Frye test: A legal test to determine whether scientific evidence is admissible; evidence must be generally accepted by the scientific community.

Daubert standard: A legal test to determine whether scientific evidence is admissible; evidence must be based on scientific knowledge.

Necessary evidence: Evidence used to establish a legitimate point, not to simply arouse feelings or to shock.

Chain of custody: The record of ind iv id ua Is who maintained control over the physical evidence from the time it was obtained by the police to when it was introduced in court.

CRIMINAL INVESTIGATION

Third, all evidence must be competent. Incompetent evidence is of questionable value. It is considered invalid or untruthful. There are three categories of incompetent evidence: (1) evidence wrongfully obtained (e.g., as the result of an illegal search or an involuntary confession), (2) statutory incompetency (e.g., when federal or state law prohibits the intro­ duction of certain forms of evidence, such as polygraph results), and (3) evidence rendered incompetent by court-established rule (e.g., hearsay evidence). If evidence is ruled incompe­ tent, it is not admissible even if it is relevant and material.

With regard to statutory incompetence in particular, the rulings from two court cases are of importance. First, the Frye test relates to Frye v. United States (1923 ), when the U.S. Court of Appeals refused to admit novel evidence in court that was not generally accepted in the scientific community. In 1993, in the case of Daubert v. Merrell Dow Pharmaceuticals (1993 ), the U.S. Supreme Court replaced the Frye test for determining the admissibility of scientific evidence. The fundamental question for the Daubert standard is, is the evidence and corresponding testimony based on scientific knowledge? Daubert provided some con­ siderations for judges in making this determination:

• Is the theory or technique on which the testimony is based capable of being tested?

• Does the technique have a known rate of error in its application?

• Has the theory or technique been subjected to peer review and publication?

• What is the level of acceptance in the relevant scientific community of the theory or technique?

• What is the extent to which there are standards to determine acceptable use of the technique?

In addition to the Daubert decision, another basis on which to exclude scientific evidence is constituted by Federal Rule 403 and its state court equivalents, which allow a trial judge to exclude evidence that is relatively weak or that may cause confusion, consume too much time, or cause unnecessary prejudice to a party.

Fourth and relatedly, the introduction of all evidence at trial must be necessary. Evidence must be introduced to establish a point. If the only purpose of presenting evidence is to arouse feelings or to be dramatic, the introduction of the evidence is not necessary and may only prejudice a jury. Arguments regarding the necessity of evidence are often raised by defense attorneys with regard to the introduction of gruesome crime scene or autopsy photos.

Finally, with regard to physical evidence specifically, the chain of custody must be main­ tained. The chain of custody refers to the record of individuals who maintained control (custody) over the evidence from the time it was obtained by the police to when it was introduced in court. At minimum it would likely 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 can be questioned, the value of the evidence itself may be questioned.

• • • Constitutional Requirements for the Collection of Evidence In order for evidence to be admissible in court, not only does it have to have certain quali­ ties, but the police also have to follow certain legal rules in collecting it. These laws are intended to protect citizens from unwarranted governmental intrusion into their lives.

Chapter 4 • The Law and Criminal Investigations

These rules represent the civil liberties of citizens and, as far as criminal investigation is concerned, relate to the protections offered by the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution. The procedures associated with arrests, searches, and seizures relate to the Fourth Amendment and courts' interpretation of it.

THE LAW OF SEARCH AND SEIZURE: THE FOURTH AMENDMENT

The Fourth Amendment reads as follows:

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 court cases have defined and inter­ preted the meaning of the Fourth Amendment. In essence, the intent of the Fourth Amendment is to protect individuals' privacy and pro­ tect against arbitrary intrusions into that privacy by government officials. As such, as interpreted by the courts, the Fourth Amend­ ment offers protection in a variety of situations.

WHAT IS THE PURPOSE OF THE FOURTH AMENDMENT TO THE U.S. CONSTITUTION?

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

REASONABLE EXPECTATION OF PRIVACY

65

Fudging a Chain of Custody

As discussed, there is a legal requirement

that physical evidence be collected and

recorded in accordance with a chain of

custody. The chain of custody is meant to

ensure the integrity of the evidence. Let's

say that in a case the shoes of a subject

were collected as possible evidence, but a chain of custody was not established at the time they were seized; the detective

did not think the shoes would be useful in the investigation, but he was not sure.

Because he had a lot of other work to do,

he put the shoes in his desk drawer and

forgot about them. Later it was determined by the detective that the shoes and the possible DNA on them might actually be very important in the investigation. Upon

realizing that he should have created a

chain of custody for the shoes at the time

they were seized, the detective made one up. Since there was no intent on the part of the detective to tamper with or otherwise manipulate the evidence, was there a problem with the detective's conduct? Why

or why not?

According to the U.S. Supreme Court case Katz v. United States (1967), searches are restricted wherever individuals have a reasonable expectation of privacy. In the case of Charles Katz, this was during phone conversations in a public telephone booth. The Court ruled in Katz that the Fourth Amendment protects people, not places, so the fact the eaves­ dropping took place at a public phone booth was not an issue. Other cases have further defined the parameters of the Fourth Amendment protections. For example, in the case of O'Connor v. Ortega (1987), it was ruled that a reasonable expectation of privacy exists in a defendant's desk and file cabinets. Winston v. Lee (1985) ruled that surgery constitutes a search and seizure. The use of a thermal-imaging device to detect criminal activity in a home represents a search (Kyllo v. United States 2001), as does attaching a global position­ ing system (GPS) device on the undercarriage of a car (United States v.Jones, 2013). GPS monitoring of sex offenders with a bracelet also constitutes a search (Grady v. North Carolina, 2015). A police dog sniffing for drugs on a subject's front porch is considered a search (Florida v. ]ardines, 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). A blood test relating to drunk driving requires a warrant, but a breath test does not (Birchfield v. North Carolina, 2016).

66

Exigent circumstances: Emergency situations that al low a search to occur without a warrant.

CRIMINAL INVESTIGATION

THE SEARCH WARRANT REQUIREMENT AND ITS EXCEPTIONS

The general rule is that the police need a search warrant to conduct a legal and valid search. However, there are many exceptions to this rule. In fact, as noted earlier, most searches conducted by the police are conducted without a search warrant, just as most arrests made by the police are made without an arrest warrant. 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 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 several categories:

• Exigent circumstances

• Vehicles

• Other places/things not covered by the Fourth Amendment

• Hot pursuit

• 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 in a private place, such as a house, the police either need a warrant or their actions must relate to one of the exceptions to the search warrant requirement.

EXIGENT CIRCUMSTANCES EXCEPTION

Exigent circumstances, or emergency situations, may require that the police conduct a search without first obtaining a warrant. In general, the rationale for the exigent circum­ stances exception is that without immediate police action, the suspect may destroy evi­ dence; the suspect may pose a threat of danger to himself or herself, the police, or the public; or someone else may be in further danger of harm.

Several Supreme Court cases have defined the exigent circumstances exception. For exam­ ple, in the case of Schmerber v. California (1966), Schmerber was suspected of driving while intoxicated and was placed under arrest. A blood sample was taken at the hospital upon order of the police but without Schmerber's approval. A chemical analysis of his blood indicated a blood alcohol level indicative of intoxication, and this evidence was admitted at trial. On appeal, the Supreme Court ruled that exigent circumstances existed in this sit­ uation because the alcohol in a person's bloodstream may disappear in the time required to obtain a warrant. Therefore, obtaining evidence in this manner 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 that exigency must be determined on the totality of the circum­ stances and that a warrant should be required for blood draws in routine driving under the influence (DUI) situations. In some circumstances, such as the ones present in the McNeely case, technology has provided the potential for officers to obtain warrants with­ out delay. Therefore, exigency in blood draws is not automatic or present in all cases. While a blood draw requires a warrant, however, a breath test does not (Birchfield v. North Carolina, 2016).

Another case that relates to exigency and the prevention of the destruction of evidence is Kentucky v. King (2011). Here the Supreme Court ruled that if the police reasonably believe

Chapter 4 • The Law and Cr iminal Investigations 67

a subject is destroying evidence, they can take immediate action without a warrant. In the case of King, the police kicked in a door to an apartment after pursuing a subject into the apartment building, smelling marijuana outside of the apartment, and announcing their intent to forcibly enter the apartment. The search without a warrant was reasonable, and the seized evidence was admissible.

The Bottom Line When Does the Exigent Circumstances Exception Apply?

The Supreme Court case of Michigan v. Fisher (2009) relates to the emer­ gency aid rationale of the exigent circumstances exception of the search war­ rant requirement. The Supreme Court ruled that when the police encounter a situation where 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" that a subject has life-threatening injuries.

The exigent circumstances

exception applies when the

police are confronted with

a situation in which they

have a reasonable basis

VEHICLE EXCEPTION

Vehicles (including motor homes; see California v. Carney [1985]) are not treated in the same manner as homes and other places in affording rights to privacy; people have a lesser expectation of privacy in vehicles. Moreover, vehicles are mobile, and as such, it is 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 the vehicle exception to the search warrant requirement.

to believe their immediate

action is necessary in order

to prevent a suspect from

destroying evidence; to

prevent a suspect from

causing a threat of danger to

himself or herself. the police,

or the public; or to prevent

someone else from being in

further danger of injury or

harm.

First, consider the case of Chambers v. Maroney (1970). Shortly after an armed robbery of a gas station, the police stopped the car of Chambers and three other men. The stop was based on a description of the getaway car used by the perpetrators that was supplied by the service station attendant and bystanders. The occupants of the car were arrested, and the car was driven to the police station. Upon searching the car at the police station, the police found 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. These materials

/ were introduced <]A evidence at trial. 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 mobile, an officer may search that vehicle at the scene or at the police station without a warrant. The search was valid and the evidence admissible.

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 without a warrant or without probable cause that the vehicle contains evidence is reasonable. 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. 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 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).

In Michigan v. Long (1983), the Supreme Court held that if an officer has reasonable sus­ picion 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

Vehicle exception: An exception to the search warrant requirement that allows the police to search a vehicle with reasonable suspicion (for weapons) or probable cause (for evidence).

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Pretext traffic stop: A traffic stop made for any t raffic offense that then al lows for other law enforcement action.

Other places exception: An exception to the search warrant requirement that allows the police to search places and things where people do not have a reasonable expectation of privacy.

CRIMINAL INVESTIGATION

PHOTO 4.3: A us Customs and Border Protection agent conducts a vehicle search at the US-Mexico border.

contraband is discovered in the process of looking for a weapon, the officer is not required to ignore it. However, to look inside a closed container in a vehicle without a warrant, there must be probable cause to suggest evidence is contained in the container (California v. Acevedo, 1991).

Arizona v. Gant (2009) also has important implications for the searches of vehicles and relates to the Long case. The primary difference between the Long and Gant cases involves when the suspect is arrested-before or after the search-as well as the reason why the subject is arrested. Gant relates most closely to the searches of vehicles after an arrest is made. Thus, this case is discussed later in the section on search incident to arrest.

Many vehicle searches occur after traffic stops. So when are traffic stops legal? 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 pretext traffic stop is legal even if it is a reason 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 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 that the driver does not have a license, that the vehicle is not registered, that 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

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Chapter 4 • The Law and Criminal Investigations 69

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 per­ missible (Illinois v. Lidster, 2004). Searches of randomly stopped vehicles are not legally permissible.

The Bottom Line

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 (Michigan v. Long, 1983; Knowles v. Iowa, 1998). In Brend/in 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 (see Exhibit 4.1). Furthermore, a drug dog can stiff 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).

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 pro­ tections. 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 there is no reasonable expec­ tation 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 not under

EXHIBl'T 4.

Guidelines for Stopping and Searching Vehicles

When Does the Vehicle Exception Apply?

Police can search for evidence

in a vehicle without a warrant

if there is probable cause to

believe the vehicle contains

evidence. Similarly, to look inside

a closed container inside the

vehicle depends on probable

cause to believe evidence is

contained in that container.

However, closed containers may

be searched in an inventory

search without probable cause.

When executing a vehicle

stop, the officer can order the

subjects out of the vehicle, and

those subjects can be searched

for the purpose of discovering

weapons (or searched for

evidence if there is probable

cause). Without probable cause

to search for evidence in the

vehicle, reasonable suspicion of

danger to the officer is required

to conduct even a brief search

of the vehicle. If a search of a

vehicle is conducted after an

arrest is made, other rules apply

(see search incident to arrest).

Type of Search/Action Minimum Level of Proof Necessary

To stop a vehic le Reasonable suspicion/violation of traffic law

To order occupants out of the vehic le Reasonable suspic ion

To search occupants for weapons Reaso~able suspicion/fear of safety

To search occupants for evidence Probable cause

To search the passenger compartment for weapons Reasonable suspic ion/fear of safety

To search the passenger compartment for evidence Probable cause

To search c losed containers in vehic le Probable cause or an inventory search

70 CRIMINAL INVESTIGATION

The Bottom Line 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 extin­ guish a fire or to conduct an investigation of the cause of a fire (Michigan v. Tyler, 1978).

What Places and Things Are Not Afforded a Reasonable Expectation of Privacy?

A search warrant is not required

when searching certain places

and things. Examples include open fields, garbage left outside on a public street or curb, bank records, the collection of DNA

when under arrest, and entries into a building to extinguish or investigate a fire.

The Bottom Line When Does the Hot Pursuit Exception Apply?

The hot pursuit exception applies when a suspect attempts to avoid apprehension by the police by entering a home. If the police are in pursuit of the subject and have

probable cause to believe the

suspect committed a crime and is in the home, then the police may enter the home to make an arrest and to conduct a search. 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 in making an arrest if doing so would endanger their lives, the life of the suspect, or

the lives of others or if it would

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 Cour\: case of Warden v. Hayden (1967) cre­ ated the hot pursuit exception to the search warrant requirement. An armed robber entered a taxicab company, took $363, and ran. Two taxicab drivers in the area followed the man, and a dispatcher relayed the information to the police that were on their way to the scene. Within minutes, the police arrived at the house they believed the sus­ pect had entered. An officer knocked and announced his presence. He asked for permission to search ~he house, and Mrs. Hayden offered no objection. The officers found Hayden upstairs, pretending to be asleep. He was arrested. Another officer discovered a shotgun and a pistol. The pistol, ammunition, and a cap, jacket, and pants that matched the description of the clothing worh by the perpetrator were admitted as evidence. Hayden was convicted. On appeal, the Supreme Court ruled that 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 exten­ sive 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 1of others, or if it would allow for the destruction of evidence. Howev1er, 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 offenses, 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 standiqg 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. Th~ police did not have a warrant to enter her house. As the police officers approached, Santana retreated into her house. The police followed her into the house and arrested her. The Supreme Court held that there is no reasonable expectation of privacy outside one's home. If a suspect enters his or her house to avoid arrest, the police may enter the house without a warrant and conduct a search accordingly.

SEARCH INCIDENT TO ARREST EXCEPTION result in the loss of evidence. The search incident to arrest exception applies to situations in which the

police conduct searches of individuals as a result of their arrest. Over the years numerous cases have addressed this exception to the search warrant

requirement. As with many of the other exceptions to the search warrant requirement, the rationale for this exception is to prevent harm to the officer and to prevent the destruction of evidence.

Chapter 4 • The Law and Criminal Investigations

PHOTO 4.4: When a suspect is arrested, the police can search the subject and the area around the subject without a warrant to locate evidence and prevent harm to officers.

In the case of Chime! v. California (1969), police officers with an arrest warrant-but not a search warrant-were admitted into Chimel's home by his wife. Once he arrived home, Chimel was served with the arrest warrant. Although he denied the officers' request to look around, they conducted a search of the entire house, including the attic, garage, and work­ shop. 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. The court 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 contrast to the Chime! decision, in Maryland v. Buie (1990), the Supreme Court ruled that a larger search was justified because of the potential for danger to officers. The court held that "the Fourth Amendment permits a properly limited protective sweep in conjunc­ tion with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." 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 a house as a search incident to lawful arrest (Vale v. Louisiana, 1970). However, the police may monitor the

71

Hot pursuit exception: An exception to the search warrant requirement that allows the police to enter a home, conduct a search, and make an arrest if they are in pursuit of the subject and have probable cause to believe the subject committed a crime.

Search incident to arrest exception: An exception to the search warrant requi rement that allows the police to search a person and his or her immediate area when that person is arrested.

72 CRIMINAL INVESTIGATION

The Bottom Line movements of a person who has been arrested. If the person who has been arrested proceeds into a private place, such as a dorm room, 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 that evidence will be found (Gustafson v. Florida, 1973).

When Does the Search Incident to Arrest Exception Apply?

When a suspect is arrested, the police can search the suspect for evidence and weapons and can also search the area within the immediate control of the suspect. When circumstances are such that a larger danger is confronted by officers (e.g., when looking for additional suspects in a house), a wider search is justified (a protective sweep).

If the person arrested is an occupant of a vehicle, the passenger compartment of that automobile can be searched if the suspect is within reaching distance of the passenger compartment at the time of the search or if it is reasonably believed by the officer that the vehicle contains evidence of the offense at hand.

If an occupant of a vehicle is arrested in or near a vehicle, the scope of the search can include a search of the passenger compartment of that automo­ bile, 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 clarified the ability of the police to search vehicles incident to arrest. 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 unreason­ able. As explained by the court, "[t]he police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passbnger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of the arrest ." In this case Gant had no access to the vehicle when the search was conducted, and there was no reason to suspect that the vehicle contained evidence rela ting to driving with a sus­ pended license. 3

An important and emerging issue is 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.

Cell phone searches require a warrant, consent, or exigent circumstances.

STOP AND FRISK EXCEPTION

Stop and frisk exception: An exception to the search warrant requirement that allows the police to search the outer clothing of a subject for weapons based on reasonable suspicion criminal activity is afoot.

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 the stop and frisk exception to the search warrant requirement. Most of the decisions note the importance of ensuring officers' safety in 1 justifying stop and frisk or pat-down searches. The most famous of these cases was the landmark case of Terry v. Ohio (1968). While patrolling a downtown beat he had been patrolling for many years, 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 of the men 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 jdined by a third man, who left abruptly. Officer McFadden followed them from a couple of blocks away to where the two men were joined by the third. He approached the men, identified himself, and asked for their identification. The men "mumbled something," whereupon McFadden frisked all three of them. Terry and one other man were ckrrying handguns. Both were tried and convicted of carrying concealed weapons. On appeal the Supreme Court held that "where a police officer o bserves unusual conduct which leads him to reasona bly conclude in light of his experience that crimina l activity may be afoot and that the

Chapter 4 • The Law and Criminal Investigations 73

persons with whom he is dealing may be armed and presently danger­ ous" and he identifies himself as a police officer, "he is entitled for the protection of himself and others in the area to conduct a carefully lim­ ited search of the outer clothing of such persons in an attempt to dis­ cover weapons which might be used to assault him." Thu~, the practice of stop and frisk is valid.

The Bottom Line

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 Illinois v. Wardlow (2000), reasonable suspicion existed when the suspect fled from the police once the suspect saw the police, and because this occurred in a high narcotics trafficking area. However, in Brown v. Tet as (1979), the Supreme Court ruled that just because an individual looked suspicious and had never been seen in the area before, the police did not have reasonable suspicion that criminal activity was afoot. Vague suspicion is lnot enough to

When Does the Stop and Frisk Exception Apply?

When the police have reasonable suspicion criminal activity is afoot, they can conduct a limited search of the outer clothing of such persons in an

attempt, and in such a way, to discover weapons.

justify a stop and frisk of an individual or to require that the person give the police his or her name. Furthermore, a stop and frisk based on an anonymous tip is not legally permis­ sible (Florida v. ]. L., 2002) .

When conducting a pat-down search under any circumstances, nonthreatening contraband, such as drugs, may be seized only if it is immediately apparent and is not found as the result of squeezing, sliding, or otherwise manipulating the contents of the defendant's pockets (Minnesota v. Dickerson, 1993 ). It is important to highlight that searches incident to arrest are for the purpose of discovering evidence and weapons. Pat-down searches are for the purpose of discovering weapons.

PHOTO 4.5: A stop and frisk (or pat-down) search is based on reasonable suspicion and is for discovering weapons that may pose harm to officers.

74 CRIMINAL INVESTIGATION

The Bottom Line PLAIN VIEW EXCEPTION When the police conduct a search with a warrant or when the police are

When Does the Plain View Exception Apply?

legally present at a particular place and evidence is observed, that evidence may be seized under the provisions of the plain view exception to the search warrant requirement. Consider the case of Texas v. Brown (1983). Brown's car was stopped at a routine checkpoint at night by a police officer who asked to see Brown's driver's license. The officer shone his flashlight into the car and saw a green, 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 then shifted his position to obtain a better view and noticed small plastic vials, loose white powder, and an open bag of party balloons in the glove compartment. After failing to produce a driver's license, Brown was asked to exit the car and placed under arrest. At trial Brown was con-

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 exception to the search warrant requirement.

Plain view exception: An exception to the search warrant requirement that allows the police to seize evidence when that evidence is in plain sight of the officer.

Consent exception: An exception to the search warrant requi rement that allows the police to conduct a search when they receive consent to do so.

victed of narcotics offenses. The Supreme Court held that the officer's initial stop of the car was valid and that 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.

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 that the seizure ~f items not listed in the warrant was per­ missible as long as those items were in plain view. In other cases, however, additional actions with regard to items found in plain view have been ruled by the court not to be acceptable. For example, in Arizona v. Hicks (1987), the 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

Of all the reasons why the police conduct searches without a warrant, by far the most fre­ quent is because of the consent exception. 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. Bustamante (1973 ). A car containing six men was stopped for a traffic violation by a California police officer. The driver of the car was not able to produce a license. The officer asked the driver if he could search the car. The driver 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 Bustamante was convicted. The Supreme Court held that after validly stopping a car, an officer may ask the person in control of the car for permis­ sion to search it. Even if there is not probable cause or reasonable suspicion, the officer may conduct a search if consent is given. The voluntariness of the consent is to be determined by the totality of the circumstances. Consent need not be in writing. The police do not have to inform subjects of their Fourth Amendment rights prior to receiving valid consent; how­ ever, the burden lies on the officer to prove the consent was valid.

In a related case, the Supreme Court ruled consent was valid if it was received from a third person who was believed at the time to have common authority over the premises (Illinois v. Rodriguez, 1990). A search of a hotel room was not valid, however, when consent was received from the hotel night clerk (Stoner v. California, 1964) as this person did not have common authority over the room. If two people with common authority (e.g., a husband and wife who share a home) are present and one gives the police consent to search and the other objects, then a consent search would not be justified; however, if the person who objects is not present where the search is to occur, then the search would be valid.4

Chapter 4 • The Law and Criminal Investigations

A consent search is limited in several ways. First, it is limitediby 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). Second, the search is limited by the actions and statements of the subject-the officer may not 1exceed 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.

In some law enforcement agencies, the knock and talk search is a commonly used investiga­ tive strategy. With a knock and talk, 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. Four issues need to be considered in judging the legality of a knock and talk search. 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 perso~ 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 refuJed to take no for an answer; they repeatedly knocked on doors and windows until they got a response. 5 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 con­ sent to conduct searches.

~.~----.,.-- ' -__ . __ :;__ ____ ,,__.;. _ __....-.,;,;,~,--~-----

- - ---· .. -----~---.....--------~--- -·- ------..-··:r.......-.. ·---- ----,.---·----~-------

PHOTO 4.6: A knock and talk can be a valuable method of obtaining consent to search. In a knock and talk, police knock on a person's door, speak with that person, and seek consent to search the person's house.

Knock and talk search: A search in which the police talk with the occupants of a home in an attempt to obtain consent to search the home.

75

--- ---- - ----

76 CRIMINAL INVESTIGATION

The Bottom Line THE EXCLUSIONARY RULE AND ITS EXCEPTIONS

When Does the consent Exception Apply?

The police can conduct a

legally valid search without a

warrant. probable cause, or

even reasonable suspicion if

they have consent from the person to be searched. The consent must be provided voluntarily, but it does not need to be in writing, nor do the police have to advise the person of his or her right to not give consent. consent may be

obtained from a person other than the person whose property is to be searched if that person has common authority, or is believed by the police to have common authority, over

the space to be searched. Consent searches can be limited in scope by the person who provides consent. Knock and talks are a valid strategy designed to obtain consent to search.

If a search is determined to be unreasonable, the evidence obtained must be excluded from trial; it is considered incompetent evidence. This basic principle is known as the exclusionary rule. 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 exclu­ sionary rule. The exclusionary rule took some time to evolve. It was not until 1961, in the case of Mapp v. Ohio, that the Supreme Court extended the exclusionary rule to the states. As a result, evidence seized in viola­ tion of the Fourth Amendment cannot be used in either federal or state prosecutions.

In the case of Mapp v. Ohio (1961), three Cleveland police officers arrived at the Mapp residence as a result of information they had received that "a person [was] hiding out in the home, who was wanted for ques­ tioning in connection with a recent bombing." 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 addi­ tional officers arrived at the scene. Mapp's attorney also arrived, but the police would not allow him to see Mapp or enter the house. Mapp demanded to see a search warrant. A paper claimed by the officers 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. A trunk in the basement was searched, and obscene material was discovered inside. Mapp was charged and convicted of possession of these materials. At the trial no search warrant was produced. On appeal, in a 5-4 decision, the Supreme Court ruled that the exclusionary rule prohibits, in state criminal proceedings, the use of evidence that results from unreasonable searches and seizures. The evidence was not admissible.

A few years after the Mapp decision, the court ruled in Davis v. Mississippi ( 1969) and further clarified the exclusionary rule. In this case the police had collected fingerprint evidence from subjects who were not under arrest. Later the prints of one of the subjects was linked to a rape. He was arrested, tried, and convicted. On appeal the Supreme Court held that "fingerprint evidence is no exception to the rule that all evidence obtained by searches and seizures in violation of the Constitution is inad­ missible in state court."

Exclusionary rule: If a search was unreasonable, evidence seized from that search is not admissible in court.

There are exceptions to the exclusionary rule. The exceptions identify circumstances in which something may have made the search and seizure technically illegal but the evidence is still admissible in court. First, the courts have ruled that when the police make an unin­ tentional error or honest mistake in conducting a search with or without a warrant, the resulting evidence should not be excluded from trial. This is known as the good faith excep­ tion, and it is the most common exception to the exclusionary rule. For example, in Arizona v. Evans (1995), Evans was arrested on an arrest warrant. While being handcuffed he dropped a marijuana cigarette. A subsequent search of Evans's vehicle revealed more mar­ ijuana. Later it was determined that due to clerical error the warrant was no longer valid. The Supreme Court ruled that the police acted in good faith in making the arrest and con-

. ducting the search. The error was not the fault of the police, and therefore, the police should not be punished. The marijuana was admissible.

Chapter 4 • The Law and Crimina l Investigations

A second exception to the exclusionary rule is known as the inevitable discovery excep­ tion, and it has usually been applied when the evidence in question is either a dead body or a weapon. This exception holds that if the police were reasonably expected to discover the evidence through lawful means and without the information produced from the ille­ gal actions taken, then that evidence may still be admitted, despite the exclusionary rule. For example, in Nix v. Williams (1984), police illegally questioned a suspect about the location of a body in a murder investigation. As a result of this questioning, the suspect told the police where the body could be found. The court ruled that the body was admis­ sible as evidence even though its discovery was as a result of illegal police conduct because the body would inevitably have been discovered even if no constitutional violation had taken place.

Third, the purged taint exception (sometimes known as the passage of time rule) holds that the illegal actions of the police may be overcome by the voluntary actions of the suspect. In essence, the actions of the suspect can eliminate the tainted nature of the evidence and allow it to be admitted. For example, in Wong Sun v. United States (1963 ), the defendant was illegally arrested and interrogated. He made incriminating statements but refused to sign a confession. A few days later, Wong Sun voluntarily returned to the police station and signed the confession. The Supreme Court ruled that under these circumstances the voluntary action of the defendant allowed the confession to be admissible as evidence. In a recent and somewhat related case, a police officer stopped a subject in an area in which,

77

according to an anonymous tip, drug sales took place. After the stop the offi­ cer determined the subject had an outstanding warrant, and the subject was arrested. During the search incident to arrest, drugs were found on the sus­ pect. The Supreme Court ruled that although the stop was illegal, the discov­ ery of the evidence on the suspect was separate from the illegal stop. The evidence was ruled admissible (Utah v. Strief{, 2016).

The Bottom Line

Finally, the independent source exception to the exclusionary rule states that evidence obtained from an independent source not directly related to an ille­ gal search or seizure should be admissible into court. For example, in United States v. Crews (1980), a subject was illegally arrested and then identified by the victim in a photo and in a lineup. The Supreme Court ruled that although the arrest and identification of the suspect by the victim were illegal, the in-court identification of the defendant was legal. The initial illegal detention of the suspect could not deprive the prosecutors of the opportunity to prove the defendant's guilt through the introduction of evidence wholly untainted by police misconduct.

THE IMPACT OF THE EXCLUSIONARY RULE ON CRIMINAL INVESTIGATIONS

The discussion of the exclusionary rule and its exceptions raises an important question: What is the purpose of the exclusionary rule? The answer is that by not allowing illegally collected evidence in court, the exclusionary rule is sup­ posed to deter unlawful police conduct in search and seizure cases. The reason­ ing is that if the police know illegally seized evidence cannot be used in court to prove a suspect's guilt, then the police will not seize the evidence illegally­ they will follow the law in collecting it. As a result, the police will not violate citizens' rights, which is the fundamental aim of the constitutional protections in the first place.

Does the exclusionary rule really deter police misconduct in condµcting searches and seizures? The answer to this question is no-or at least not as much as what

What Is the Exclusionary Rule, and When Does It Apply?

The exclusionary rule holds

that if the police collect

evidence illegally, that

evidence is to be excluded

from court proceedings.

However, there are several

situations (exceptions) when

the rule does not apply:

(1) when the police make

an unintentional error in

conducting the search,

(2) when the police would

have found the evidence

without the illegal search,

(3) when the voluntary

actions of the suspect

nullify the illegal actions

of the police, and (4) when

evidence is obtained

independent of the illegal

police action.

78

- ------- --- -

CRIMINAL INVESTIGATION

many would hope or expect. The reason why the exclusionary rule does not necessarily deter police misconduct is that there are ways of "getting around the Fourth Amendment." 6 The police can use several strategies to circumvent the rule. If these strategies do not break the law, they at least bend it. For example, one strategy involves the extensive use of the consent excep­ tion. As discussed earlier, if the police receive voluntary consent from a citizen to conduct a search, then the police can conduct a valid search. The issue becomes, however, what exactly is "voluntary," and how is voluntariness to be determined? A judge is the final arbiter of this question, but it may be an issue of "he said, she said" between the officer and the citizen. It may be difficult to determine who is really telling the truth, and correspondingly, it may be difficult for a judge to strike down the evidence gathered from a consent search.

As a second strategy of "getting around the Fourth," the police may conduct an illegal search with full knowledge that any evidence seized will not be admissible and that the case will not be prosecuted. For instance, the police could obtain evidence illegally to pressure a person to provide information about a particular crime or criminal (e.g., "Tell us what you know about the old man getting killed or you're going to be arrested for possession of the marijuana we found when we searched you"). Or the police could conduct an illegal search and seize evidence just to harass a suspect. Does this really happen? Unfortunately, it does. In a survey of Illinois police officers, 25 percent stated they had witnessed at least one illegal search of a subject during the past year. 7

Third, police officers may engage in "judge-shopping," wherein "officers seek out magis­ trates who appear favorably disposed to warrant requests." 8 Some judges may be more likely to approve warrants than others. The police may use this to their advantage in requesting warrants and executing searches. Knowing thi~, it is interesting to note that warrant applications are rarely rejected by judges or magistrates. 9

Finally, unfortunately, sometimes police officers simply lie. For a variety of reasons, police officers may misrepresent the facts of a case to a judge or a jury and, as a result, the "fruits" of an illegal search may be admitted into trial and considered in determining the guilt of the accused. The fact that police sometimes lie is well understood by other police officers, judges, and attorneys. 10 One study found that 4 percent of officers knew of other officers who had provided false testimony in traffic cases, 3 percent knew of false testimony in criminal cases, and 7 percent knew of arrest reports written in a false manner. 11 And, given the sensitive nature of this area of inquiry, one might expect these illegal behaviors are greatly underre­ ported 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 (e.g., in interroga-

tions; see Chapter 7) . If the police feel the law is simply a barrier to effective performance, deception in many situations may be understandable (but still not accept­ able). Indeed, the most common reason officers give for

Do the Ends Justify the Means? lying is that they view it as a necessary means to achieve the desired ends.12 In any case, it represents a strategy of the

police to get around the exclusionary rule. Clearly, the exclusion­ ary rule does not prevent the police from engaging in any of these questionable or illegal actions.

A basic and important goal of the police is

to identify and apprehend criminals; this is

one of the main reasons why we have the

police. As a society we expect the police

to work hard to achieve this goal, and a lot

of money is allocated to law enforcement

agencies so they can accomplish it. The

question is, If the police engage in conduct

that is not technically legal but their

actions result in criminals being identified

and apprehended, is there really anything

wrong with that? Why or why not?

Does the exclusionary rule result in the loss of cases? Are potentially guilty suspects freed because of search and seizure problems? Several studies have attempted to address these questions. When the land­ mark decision of Mapp v. Ohio (1961) was rendered, the police believed their actions were going to be constrained in a way that was detrimental to solving crimes and obtaining convictions. However, research has shown the exclusionary rule results in the loss of only a very small percentage of cases at the court stage-typ­ ically less than 1 percent. 13

Chapter 4 • The Law and Criminal Investigations

Although the prevailing wisdom is that the exclusionary rule has little impact, it is import­ ant to realize the focus on "lost cases" at the court stage of the process draws attention away from the possibility that some of the cases in which the police violate the provisions of the exclusionary rule are not even presented to prosecutors for further action and, there­ fore, could not be lost at the court stage. In these cases the exclusionary rule did not deter police misconduct or lead to the case being lost, it simply deterred the police from formally processing the case. Furthermore, in other instances the exclusionary rule may prevent the collection of evidence necessary to solve a crime. Overall, the impact of the exclusionary rule may be larger than what has been documented in research studies.

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, 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 identifies several rights. The most important for criminal investigation is the right of individuals to be represented by an attorney in legal proceedings. It states, in part, that "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 information is inadmissible in court because it violates the due process rights of the accused. Valuable information can come from suspects in criminal investigations, but this information is only useful in establishing proof in court if the police follow the necessary procedures in collecting that evidence. The fundamental questions are, When are incriminating statements made by a suspect admissible in court, and when are they not? Most of the remainder of this chapter is devoted to addressing this important question.

The most famous and widely applied case associated with the Fifth and Sixth Amendment protections is Miranda v. Arizona (1966), as described in the introduction to this chapter. The Miranda decision extended the earlier decisions made by the U.S. Supreme Court in Gideon v. Wainwright (1963) and Escobedo v. Illinois (1964). In Gideon v. Wainwright, Gideon was arrested and charged with breaking and entering-a felony. Gideon appeared in court without an attorney because he could not afford one. He asked that the court appoint counsel for him. His request was denied because the law provided a right to coun­ sel only in capital cases. Gideon conducted his own defense and was convicted and sen­ tenced to five years in prison. On appeal the Supreme Court ruled that " the right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial."

In the Escobedo case, Escobedo was arrested by the police, taken to police headquarters, and questioned about the fatal shooting of his brother-in-law. Escobedo was not advised by the police of his right to remain silent. During the police interrogation, Escobedo confessed to the murder. During the interrogation, he also requested to see his lawyer, who was present in the building, but the police refused. His confession was admitted in trial, and he was convicted. On appeal the Supreme Court ruled that the confession was inadmissible because of the circumstances of the interrogation, namely, that Escobedo was denied the right to counsel and was not notified of his right to remain silent. The Escobedo decision extended the right to counsel to the interrogation stage. Gideon v. Wainwright and Escobedo v. Illinois set the stage for the Miranda decision that requires the police to explicitly inform suspects of their rights when in custody and prior to interrogation. It is important to understand that Miranda does not give suspects additional rights; it requires that suspects be informed of their already-existing rights when in custody and prior to interrogation.

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80 CR IMINAL INVESTIGATION

THE CONTENT AND WAIVER OF MIRANDA WARNINGS The Miranda warnings consist of the following:

• You have the right to remain silent.

• Anything you say can and will be used against you in a court of law.

• You have a right to have an attorney with you during the interrogation.

• If you are unable to afford an attorney, one will be provided for you without cost.

If these rights are waived by a suspect, the waiver is to be done voluntarily and intelligently (see Exhibit 4.2).

Miranda warnings:

Leeway exists 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. A list of the rights that

must be provided to an individual when in custody and prior to interrogat ion.

With regard to a suspect's waiver of the M iranda 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

Example of a Miranda Waiver Form

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 constitutiona l 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 ___________ _

To verify that the Miranda warnings were given and waived, most police departments require investigators to complete

a form similar to the one illustrated here prior to the interrogation of a suspect.

Chapter 4 • The Law and Criminal Investigations

Miranda Is Not Like Houdini

It is sometimes believed that the police must provide a

suspect their Miranda warnings prior to the suspect being

placed in handcuffs and the suspect can go free if they

do not. This is not true. The Miranda v. Arizona decision

holds that the police must read or otherwise inform sus­

pects of the Miranda warnings when two conditions are

met: (1) when the suspect is in custody of the police and

(2) prior to interrogation by the police. Only when both of

these conditions apply must the suspect be informed of

the Miranda warnings. In other words, when a subject is

placed under arrest, the Miranda warnings do not need to

be provided. When a subject is questioned (but is not in

custody of the police at the time of the questioning), the

Miranda warnings do not need to be provided. However,

if a suspect is in custody of the police and is about to be

interrogated by the police, Miranda warnings do need to

be provided; otherwise, incriminating statements made

by the suspect may not be allowed at trial.

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 even­ tually made incriminating statements. The Supreme Court ruled that 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 Supreme Court case Edwards v. Arizona (1981), Edwards was arrested on charges of robbery, burglary, and first-degree murder. At the police station he was provided the Miranda warnings 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 Supreme Court ruled that 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 rights to not answer the question of the police, the subject cannot be asked about other offenses or asked questions 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 reinitiate questioning (Maryland v. Shatzer, 2010).

What if a suspect does not invoke his or her 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), the court ruled that even though Burbine's sister requested an attorney for her brother, since Burbine himself did not request an attorney, his confession without an attorney was admissible.

WHAT CONSTITUTES AN INTERROGATION?

Although this issue is discussed in detail in Chapter 7, it is necessary to point out here that what constitutes an interrogation is not necessary clear or straightforward. For example, in the case of Brewer v. Williams (1977), the Supreme Court ruled that the police had explic­ itly 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

81

82 CRIMINAL INVESTIGATION

Eve. Williams then showed the police where to find the girl's body. The Supreme 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 excep­ tion to the exclusionary rule).

However, In Rhode Island v. Innis (1980), the police arrested Innis as a suspect in the mur­ der of a taxicab driver based on an eyewitness identification. Innis was advised of his Miranda rights. He said 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 com­ mented 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 was not interrogated in violation of his rights. The statements the officer made did not consti­ tute express questioning or its functional equivalent, and the officer had no reason to believe that his statements would lead to a self-incriminating response from the suspect. Subtle compulsion does not constitute an interrogation.

In the case of Massiah v. United States (1964), the court ruled Massiah was entitled to be notified of his Miranda rights even though it was not the police who were doing the ques­ tioning. 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 co-conspirator of Massiah decided to cooperate with government agents in their continuing investigation of Massiah. Incriminating conversations between Massiah and his partner were recorded and later used in court to obtain a conviction of Massiah. The Supreme Court held that 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 has engaged an attorney, the police can no longer question him or her, even via a third party or co-conspirator.

In a similar manner, statements obtained as the result of implied duress and without the benefit of the Miranda warnings are not admissible. In Arizona v. Fulminante (1991), a paid police prison informant promised Fulminante that 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, par­ tially on the basis of this confession. The Supreme Court ruled that 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 his or her 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 detec­ tive 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."

Does silence on the part of a suspect constitute evidence? It depends on the meaning, con­ text, and form of silence. In Griffin v. California (1965), the court ruled that 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 Miranda warnings were

Chapter 4 • The Law and Criminal Investigations

not provided, nor were the rights 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 that 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 ).

JUVENILES AND THE MIRANDA REQUIREMENT

The Miranda requirement is valid for both juveniles and adults. If a juvenile is to be interrogated while in custody of the police, Mirada warnings must be provided to the juvenile. There are con­ tinuing and largely unanswered questions, however, about juve­ niles' abilities to understand the Miranda warnings regarding the benefits of legal representation and the potentially serious conse­ quences of self-incrimination. These concerns are magnified given that the techniques used in the interrogation of juveniles are typi­ cally similar to those used with adults. 14 The increased likelihood of juveniles falsely confessing to crimes they did not commit is also a significant consideration. 15 Agencies sometimes modify the wording of the Miranda warnings given to juveniles to make them easier to understand. For example, instead of saying, "You have the right to remain silent," the warning would be "You don't have to talk to anyone." 16 Most states do not require a parent be noti­ fied or present prior to the interrogation of a child, but it is a factor when considering the "totality of the circumstances" of whether the child waived his or her rights knowingly, voluntarily, and intelligently. Some states require that an attorney be notified and/or that a parent make the waiver on behalf of the juvenile who is to be interrogated. Other factors to take into account when providing Miranda warnings to a juvenile include the child's age, intelligence, background experience, education, mental capacity, and physical condition.

EXCEPTIONS TO THE MIRANDA REQUIREMENT Certain circumstances exist under which Miranda warnings do not need to be provided to suspects. These circumstances may be thought of as exceptions to the Miranda requirement. First, in Berkemer v. McCarty (1984 ), the Supreme Court held the police do not have to provide Miranda warnings prior to the roadside ques­ tioning 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. Second, the Supreme Court created the pub­ lic 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 imme­ diate 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 volun­ tarily. Third, when a suspect is not aware that he or she is speaking

The Bottom Line When Must the Police Tell Suspects of Their Miranda Rights?

suspects must be informed of their Miranda rights when in custody of the police and prior to interrogation.

If the suspect states he or she does

not wish to answer the questions of

the police or requests an attorney, the questioning must stop (or not begin). If a suspect neither invokes nor waives the Miranda rights, questioning can continue.

If a suspect does not wish to answer the questions of the police, the suspect is not to be questioned about that offense or a different offense, nor is the suspect to be questioned by the same or a different law enforcement agency.

However, if a suspect voluntarily provides incriminating statements, even after invoking the right to not answer questions, those statements are admissible. Furthermore, if a suspect is out of police custody for fourteen or more days, the police can

attempt to reinitiate questioning after

providing new Miranda warnings.

There are several circumstances in which the police do not need to inform suspects of their Miranda rights:

• To prevent possible immediate danger to the public

• When the police are working undercover

• During roadside questioning of motorists

• When a suspect volunteers information

• When general on-the-scene questions are asked (e.g., "What happened?")

• During stop and frisk searches

• During routine booking

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84 CRIMINAL INVESTIGATION

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. Finally, police do not need to inform a suspect of his or her Miranda rights when the suspect volunteers information, when general on-the-scene questions are asked (e.g., "What happened?" ), during stop and frisk searches, or during routine booking.

THE IMPACT OF MIRANDA WARNINGS ON CRIMINAL INVESTIGATIONS

The reaction to the Miranda decision was intense. A self-confessed and convicted rapist was given another chance at freedom because the police did not tell him about his right to remain silent and his right to have an attorney. The police were outraged. If suspects were told they did not have to talk to the police and that what they said might be used against them, then con­ fessions, it was believed, would be a thing of the past. This was the conventional wisdom. However, most of the research that has been conducted on the impact of the Miranda decision on police ability to obtain con­ fessions has shown that the Miranda requirement has had minimal impact- or at least less of an impact than what was feared.

PHOTO 4.7: Even though officers may ask questions of subjects during traffic stops, Miranda warnings do not need to be given.

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. For example, one study examined

more than 7,000 cases in Illinois, Michigan, and Pennsylvania and found that only five convictions were lost as the result of confessions being ruled as illegally obtained and therefore inadmissible.17 If a suspect was informed of her or his rights and those rights were voluntarily and knowingly waived, then the Miranda requirement was satisfied. Only if the methods used to obtain confessions are deemed coercive will a confession be ruled inadmissible; the Miranda decision does not protect against coercive interrogation methods.

Second, to what extent are confessions (and convictions) not obtained by the police because of the Miranda decision? This question is more complicated than the first because it is pos­ sible 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 may not be 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. Nevertheless, studies have shown that most subjects (78 to 84 percent) agree to answer the questions of the police even after being told that they do not have to.18 The M iranda warnings do not appear to prevent subjects from answering the questions of the police.

In fact, some have suggested the M iranda warnings may increase the likelihood that suspects will make incriminating statements. The Miranda warnings make it clear that the police think the subject is guilty and that there is incriminating information to give. Suspects may believe that a willingness to answer questions will help clear them of

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Chapter 4 • The Law and Criminal Investigations

responsibility. It is interesting to note that research has found suspects with a felony record to be less likely to answer questions than suspects without a felony record, and suspects who answered the questions of the police were more likely to be convicted than those who did not answer questions.19 Research has also shown that innocent subjects are more likely to answer questions of the police.20 These issues are discussed in more detail in Chapter 7.

Miranda warnings Cause Suspects to Keep Quiet

Conventional wisdom and common sense hold that if sus­

pects are told that anything they say to the police can be

used against them in court and that they do not have to

answer the questions of the police, then suspects are not

going to answer the questions of the police. This is not

MAIN POINTS

true. As discussed earlier, research has shown that the

majority of suspects agree to answer the questions of the

police even when they are told they do not have to. And,

as discussed in Chapter 7, many of these suspects end up

confessing to the crime they are suspected of committing.

85

1. An arrest occurs when the police take a person 6. The exclusionary rule holds that if the police collect

into custody for the purposes of criminal evidence illegally, that evidence is to be excluded

prosecution and interrogation. from court proceedings. However, there are several

exceptions to the exclusionary rule: good faith, 2. A search is a governmental infringement into a inevitable discovery, purged taint, and independent

person's reasonable expectation of privacy for the source.

purpose of discovering things that could be used as

evidence in a criminal prosecution. 7. The purpose of the exclusionary rule is to deter

police misconduct in search and seizure cases, but 3. All evidence admitted into court for consideration there are w ays of "getting around" this rule that

by a judge or jury must have certain qualities: limit its effectiveness. It must be relevant, material, competent, and

necessary. With physical evidence, a chain of 8. The Fifth Amendment to the constitution protects

custody must be maintained. against self-incrimination; the Sixth Amendment

provides the right of the accused to be represented 4. The intent of the Fourth Amendment is to protect by an attorney in criminal proceedings.

individuals' privacy and protect against arbitrary The police must inform suspects of their Fifth and

intrusions into that privacy by government officials. 9.

Sixth Amendment rights (Miranda rights) when

5. The general rule is that the pol ice need a search (1) the suspect is in custody of the police and

warrant to conduct a legal and valid search and (2) prior to interrogation by the police.

that warrant is to be based on probable cause. 10. There are circumstances in which the police do not

However, there are many exceptions to this rule: need to inform suspects of their Miranda rights.

exigent circumstances, vehicles, other places/

things not covered by the Fourth Amendment, hot 11 . Research shows that the impact of Miranda on

pursuit, incident to arrest, stop and frisk, plain view, police ability to obtain confessions has been

and consent. minimal.

------------------ - - - ~------

86 CRIMINAL INVESTIGATION

IMPORTANT TERMS Arrest, 61 Exigent circumstances, 66 Plain view exception, 7 4

Pretext traffic stop, 68

Relevant evidence, 63

Search, 62

Arrest warrant. 62 Frye test, 64

Chain of custody, 64

Competent evidence, 64

Consent exception, 7 4

Hot pursuit exception, 71

Knock and talk search, 75

Material evidence, 63 Search incident to arrest exception, 71

custody, 61 Miranda warnings, 80

Necessary evidence, 64

Other places exception, 68

Search warrant, 62

Daubert standard, 64

Exclusionary rule, 76

Stop and frisk exception, 72

Vehicle exception, 67

QUESTIONS FOR DISCUSSION AND REVIEW 1.

2.

3.

4.

5.

What qualities must evidence have in order for it to 6. What is the purpose of the exclusionary rule, and be admissible in court? what are the exceptions to it?

What is the chain of custody, and why is it 7. What impact does the exclusionary rule have on important? criminal investigations and the criminal justice

What is the significance of the Fourth Amendment process? Why?

to the U.S. Constitution, especially with regard to 8. What is an interrogation from the perspective of the exceptions to the search warrant requirement? the Fifth Amendment?

Under what circumstances is an arrest warrant 9. What are the Miranda warnings? When must they necessary? When is a search warrant necessary? be provided to suspects? When do they not need to

Under what circumstances is a search warrant not be provided?

required? What is the reason for each exception to 10. What has been the impact of Miranda on criminal the search warrant requirement? investigations and the criminal justice process? Why?

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