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
- · The object is in plain view
- · Lawful access to the viewing area
- · 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.
