The Law is Made to Protect You: Know Your Rights and Legal Concepts

Law Enforcement and Police Action

Police action should only be initiated because of the behavior of the individual warrants the attention of the police (Schmalleger, 2014, p. 260). This can include when it is probable cause, reasonable suspicion, or when information is given to the police that leads them to a a particular individual who has been identified as being, or having been, engaged in criminal activity (Schmalleger, 2014, p. 260).

"Probable cause" is needed for a lawful police Search and seizure of a person or his or her ‘dwellings, vehicles, and possessions” (Schmalleger, 2014, p. 17). The Fourth Amendment to the U.S. Constitution was first established in 1791 to protect people and their property from unwarranted searches and seizures. The amendment specifically mandates a lawful search and seizure have probable cause and a warrant (Schmalleger, 2014, p. 201). The legal criteria state that probable cause is established if when examining the facts and circumstances “a reasonably intelligent and prudent person” would also come to believe that a specified person has committed a specified crime (Schmalleger, 2014, p. 201).

In Kirk v. Louisiana, the court upheld the fourth amendment right against unreasonable search and seizure affirming that the police need “both probable cause to either arrest or search and exigent circumstances to justify a nonconsensual warrantless intrusion into private premises” (Schmalleger, 2014, p. 201).

“Reasonable Suspicion” is the general belief that “a crime is in progress or has occurred” (Schmalleger, 2014, p. 213).

In the 1989 case of U.S. v. Sokolow, the Supreme The court determined that the “legitimacy of a stop must be evaluated” by examining the entire set of circumstances which led to the stop, including “all aspects of the defendant’s behavior” (Schmalleger, 2014).

Here Sokolow was stopped at the airport for suspicious behavior on the basis that he paid cash from “a large roll of money” for two pricey airline tickets, checked no luggage, and appeared nervous (Schmalleger, 2014). The Drug Enforcement Administration (DEA) agents at the airport performed a warrantless search on the defendant and uncovered a large amount of cocaine (Schmalleger, 2014). The court allowed the warrantless search and the evidence uncovered because the combined behaviors of the defendant had provided reasonable suspicion of criminal activity (Schmalleger, 2014, p. 213-214).

Arrest

In U.S. v. Mendenhall, Justice Potter Stewart wrote, “A person has been ‘seized’ within the meaning of the Fourth Amendment only if given all the circumstances surrounding the incident, a reasonable the person would have believed that he was not free to leave ” (Schmalleger, 2005, p. 211). Here the Justice Potter Stewart established the “free to leave” test which is now often used to determine the level of custody or arrest. And as such, any interaction or combination of behaviors from the police that makes a person feel as though that they are unable to leave is technically considered an arrest.

Miranda Rights

The reading of the Miranda rights is a very important the aspect of an arrest as it protects the person’s constitutional rights by making them aware of their “right to remain silent, have an attorney present and appointed due process…”. Additionally, it deems the evidence garnered from questioning admissible in court “anything you do say can and will be used against you in the court of law”.

When a police officer interrupts a crime in progress (i.e. carrying the stolen goods and resisting arrest) the law might allow for a few questions to be asked before a Miranda advisement, as to allow the officer to decide there is a crime being committed (Schmalleger, 2014). But once the officer decides to take a suspect into custody for a specific crime, he or she should advise the suspect of their constitutional rights, as enumerated in Miranda vs. Arizona (Schmalleger, 2014). Failing to provide those who are arrested with right advisement can lead to evidence collected from both the scene and interview being deemed “fruit from a poisonous tree” at a probable cause hearing and thus inadmissible as evidence in a court of law (Schmalleger, 2014).

In 1966, Ernesto Miranda confessed and was convicted for rape and kidnapping- despite officers failing to advise him on his constitutional rights. The infamous conviction of Ernesto, in the Miranda v. Arizona case inspired the mandate that defendants be advised of their rights during an arrest and before questioning. While the Miranda decision requires police advise a person of his or her rights before questioning- an arrest without questioning does not require a warning (Schmalleger, 2006, p.16). Furthermore, if the person is free to leave no Miranda advisement is necessary for an officer to continue speaking with and questioning a suspect (Schmalleger, 2006). In the case of Yarborough v. Alvarado, a 17-year-old boy’s two-hour interrogation in a police station without a Miranda, advisement was deemed not custodial because of the actions of the police indicated he was free to leave. Therefore, his confession to his involvement in a murder was considered voluntary and admissible in court (Schmalleger, 2014, p. 212).

Fruit of the Poisonous Tree

To protect our constitutional rights and inhibit police corruption an exclusionary rule mandates that evidence seized illegally is “fruit of a poisonous tree” and thus inadmissible in court. In the case of U.S. v. Leon, Alberto Leon was under observation for drug trafficking because an informant had identified him as a suspect in criminal activity. The Police Department gathered information from the surveillance and sought to obtain a search warrant from that information they had gathered. A warrant was issued for the search of his three residences. During the searches, the police confiscated more evidence against Leon for trial. Leon was later convicted of drug trafficking. However, a later ruling in federal court suppressed evidence against Leon because the affidavit submitted by police had failed to provide adequate probable cause to obtain the warrant (Schmalleger, 2014, p. 212).

Good-Faith Exceptions to the Exclusionary Rule

An exception to the exclusionary rule which mandates evidence seized by law enforcement officers is admissible when it was seized by who those who believe that they have the lawful right to the evidence, even if they later discover they don’t (Schmallege, 2007, p. 206). In U.S. v. Leon, the police department felt the Search and seizure of evidence was in compliance with the Fourth Amendment requirement because of the “no Warrants shall issue but upon probable cause” clause (Schmalleger, 2014, p. 206). Thus, they felt because they believed them had probable cause that justified their actions and a warrant that provided lawful access to the viewing area they were acting within Good Faith of the law and the evidence should be admissible (Schmalleger, 2014, p. 206). This case set the case president for Good-Faith Exceptions to the Exclusionary Rule because the court modified the Exclusionary Rule to include evidence collected in “good faith” of the law (Schmalleger, 2014, p. 206). Now evidence seized by law enforcement officers are admissible when it was seized by who those who believe that they have the lawful right to the evidence, even if they later discover they don’t (Schmallege, 2007, p. 206).

Plain View Doctrine

A Lawful Seizure of Evidence without a Warrant

1. ·      The object is in plain view
2. ·      Lawful access to the viewing area
3. ·      Belief the evidence is associated with crime

The police have the right to continue an investigation or confiscate evidence that is in plain view without a Miranda advisement in some situations, such as when the evidence is in plain view, the officer has lawful right to view the area and believed the evidence is associated with a crime (Schmalleger, 2014, p. 208).

In the case of Harris v. U.S. (1968), the Court ruled that “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence” providing the officer has the right to the viewing area (Schmalleger, 2007, p. 207). This doctrine applies in various situations, like emergencies (Schmalleger, 2014, p. 208). Other cases the support that Plainview Doctrine, include the Horton v. California (1990) Coolidge v. New Hampshire (1971) cases (Schmalleger, 2014, p. 208).

The Social Contract

The founding concept behind the US government is that “human beings begin as individuals in a state of nature” but co-exist as a society that can be mutually beneficial when governed by a social contract that maintains harmony (Constitution.Org, 2007). Our founders felt that when society is governed with social order it has many benefits for the individual, such as "mutual protection, division of labor, and economies of scale" (Landauer and Rowlands, 2001). And to ensure the maintenance of social order governments establish, maintain and uphold laws enacted by the people (Landauer and Rowlands, 2001). Laws ensure that the fundamental human rights of the individual are not violated by establishing proper use of force, by both the government and individual (Landauer and Rowlands, 2001). In this regard, the laws are the established rules of the social contract.

A right, on the other hand, is a “moral the principle” that dictates and sanctions "a man's freedom of action in a social context" (Rand...as cited by Landauer & Rowlands, 2001). Thus, the purpose of the government is to establish and maintain a common social contract for citizens that both protect the individual’s rights and creates social order in society. And to maintain this delicate balance means the government must establish a law that balances the rights of the individual [and/or victim] against the accused [and/or criminal defendant] and provides equal justice for both under the law (Schmalleger, 2014). 

Essentially this alludes that upholding that law means enforcing rules to prevent and punish those who violate the rights of others but also includes protecting the rights of the individual who is accused of a crime (Schmalleger, 2014). Therefore, when a cop must enforce the law and arrest an individual, he must play at least two different and opposing roles. The first role is the role in which a police officer enforces the law against the person for behavior that violates the law. The other role the officers play is the role in which the police officer protects the rights of the accused. It is equally important to both of these roles that the arresting police officer act per the law that mandates a suspect due process. This requires an understanding of these basic criminal justice concepts.

Ethical Standards

Police ethics refers to “the special responsibility to adhere to moral duty and obligation that is inherent in police work” (Schmalleger, 2014, p. 185). The ethics and standards of the police force emphasis the need for individual integrity and “place important limits on the discretionary activities” of police personnel (Schmalleger, 2014, p. 185).They also establish the guidelines for professionalism, protect individual human rights, and aim to inhibit police corruption (Schmalleger, 2014).

In 1993, many corrupt New York police officers testified about police corruption (Schmalleger, 2006, p. 246-247). Many revealed partaking in illegal activities, such as dealing drugs, stealing confiscating drug funds, stifling investigations, and beating innocent people (Schmalleger, 2006, p. 246-247). One officer even admitted to establishing “a cocaine ring out of his station house in Brooklyn” (Schmalleger, 2006, p. 246-247). Sadly, high-level police officials confessed to hiding shameful acts of unprofessionalism and criminal practices by the officers under their command (Schmalleger, 2006, p. 246-247). The latent consequences of unethical practices can be quite expensive, serious in nature and enduring. Some examples of police the corruption that can be avoided with proper use of the standards and ethics that govern police professionalism include: “unprofessional on- and off-duty misconduct, isolated instances of misuse of position, improper relationships with informants or criminals, sexual harassment, disparaging racial or sexual comments, embellished/falsified reporting, time and attendance abuse, insubordination, nepotism, cronyism, and noncriminal unauthorized disclosure of information (Schmalleger, 2014, p. 245).

Ethical standards for police demand that police personnel display courage, integrity, and allegiance to moral lawful behavior as well as allegiance to other law personnel, both on and off duty (Klein, 2012). That means police personnel must behave in ways “becoming of an officer of the law” at all times. When working with diverse populations it is important to be culturally aware and respectful of human rights, regardless of the suspect’s criminal history or other characteristics. Police personnel should also participate in cultural awareness classes that educated them on the impact of culture on human behavior, including criminal behavior (Schmalleger, 2014). Research indicates that police officers can reduce their tendency to discriminate by “exploring and uprooting their own personal prejudices” (Schmalleger, 2014).

To avoid unethical practice police must be aware of bias police practices that violate the rights of suspects and victims, like racial profiling and/or unsympathetic witness practices.

Racial Profiling

Police action should never be based solely on a person’s race, ethnicity, or national origin as this violates their constitutional rights (Schmalleger, 2014, p. 260).

After the New Jersey and Maryland, police were accused of unfair practices concerning black motorists, they admitted that race was a factor in traffic stops (Schmalleger, 2014, p. 260). After public the outcry, “racial profiling was banned” by the U.S. Department of Justice in “all federal law enforcement agencies, except in cases that involve the possible identification of terrorist suspects” (Schmalleger, 2014, p. 260).

Unsympathetic Witness/ Victim

The term unsympathetic is applied to victims and suspects who, by nature of previous crimes or circumstances, would not gain the sympathy of the jury (Perin, 2013). An example of an unsympathetic witness would be if a person was sexually assaulted when prostituting. Although it is incredibly unfair, the fact that they were selling sex could make people unsympathetic to the victimization. It is indicated that those deemed “unsympathetic " are often done so by aspects of the victims/suspects' character or other case circumstances (Perin, 2013). Unsympathetic victims and suspects are less likely to get justice for crimes committed against them (Perin, 2013). Unsympathetic suspects are also at risk to receive unfair treatment, such as excessive use of force, by law officers as well (Perin, 2013).

The Rights of the Accused

Another equally important aspect of avoiding unethical and unlawful police behavior includes having an awareness of the rights of the accused. The rights of the accused are defined by amendments in both the Constitution and the Bill of Rights (Mott, 2015). In addition to the Fifth and Fourteenth Amendments which mandate “no one shall be deprived of life, liberty, or property, without due process of law” there are several more specific mandates that provide measures to ensure fair trial (Mott, 2015). This includes the “The Writ of Habeas Corpus” which mandates the law provides justification for the arrest and probable cause (Mott, 2015). The accused also has the right to a trial by jury where he or she may confront accusers and “compel favorable witnesses” to testify on their behalf (Mott, 2015). Other rights include the right to free from: unreasonable search and seizure of person or property, self-incrimination, trail for the same crime twice, and excessive force, cruel or unusual fines or punishments (Mott, 2015).

For example: In Terry vs. Ohio a search of two suspicious suspects revealed a concealed weapon. The defendant appealed the conviction of carrying a concealed weapon on the basis that the cop had no probable cause for the arrest. The police officer indicated he stopped them because they looked suspiciously as though they were casing the place for a robbery. He stated that he decided to search them after he approached and feared they might be armed (Schmalleger, 2014, p. 213). Here the courts allowed the warrantless search at the police discretion because it was to protect the acting officer and his behavior was motivated by fear.