Posted on 04/21/2011 5:21:46 PM PDT by DariusBane
Probably the most controversial aspect of modern search and seizure law is the concept of “aggressive patrolling,” a means of using stop and frisk authority to make the police presence felt in certain neighborhoods, remove weapons and drugs from the streets, and turn targets into informants. Because arrests are rarely made in this context, the exclusionary rule is almost useless as a deterrent. An analogous strategy occurs in connection with traffic stops. Because there are so many traffic laws—governing speed, turning signals, equipment, and the like—the police can stop almost any driver for a violation, and then search the car if something suspicious is spied in plain view, consent is obtained, or if the occupant can be arrested for a custodial offense (which the Court has held authorizes search of the entire car’s interior). Although such traffic stops might serve merely as a pretext to check out the officer’s “hunch” that the occupant is engaged in more serious crime, the Supreme Court has held that the officer’s hidden agenda is irrelevant to Fourth Amendment analysis. Some view these police techniques as necessary tactics in the war on drugs and gangs, while others believe they are reminiscent of the general warrants that gave rise to the Fourth Amendment in the first place.
(Excerpt) Read more at law.jrank.org ...
The antiauthoritarian origins of the United States heavily influenced both the organization of its police forces and the way those forces are regulated. Compared with European countries, police organizations in America developed slowly and in a decentralized fashion, and the most important rules governing police procedures today are much more likely to come from the courts rather than from majoritarian institutions such as legislatures, or from police departments themselves.
Formal police forces did not begin operating in the United States until the mid-nineteenth century, and even then only in municipalities such as Philadelphia and New York. State police forces were not established until the end of the nineteenth century, and federal police entities such as the Federal Bureau of Investigation were not created until even later. Within municipalities, police power was often divided. Today, some urban areas host over one hundred different police organizations, and there are more than seventeen thousand such organizations nationwide.
Given this diversity, uniform rules of police procedures were not likely to come from the police themselves. Nor were federal or state legislative bodies willing to promulgate rules regulating local police powers. Even the courts were initially reticent to do so. Although the judiciary possessed the power of review—the authority to overturn statutes and prohibit government practices believed to violate the United States Constitution—until the mid-twentieth century it rarely exercised this power in a way that affected the police.
This relative passivity on the part of the courts changed abruptly in the 1960s with a string of decisions by the U.S. Supreme Court during the time Earl Warren was Chief Justice. The Warren Court for the first time established nationwide rules regarding various aspects of police work, including searches for evidence, interrogations, and use of identification procedures such as lineups, and also adopted, as the mechanism for enforcing these rules, the exclusion of unconstitutionally obtained evidence. One reason for the new activism toward police regulation was the realization that regulating the trial process, which had been the focus of much of the Court’s criminal law jurisprudence up to that time, did little good if the evidence presented there was obtained by abusive or otherwise improper methods. A second, more important reason for the new judicial attitude was the Court’s perception that the poor and disadvantaged, in particular racial minorities, were usually the focal point of police abuse and that lacking political power, this group’s only hope for protection from such abuse was the courts. In a sense, the Court’s famous decisions regulating police practices were descendants of Court opinions on school desegregation and other civil rights matters handed down during the 1950s.
When Earl Warren and three other justices left the Court between 1969 and 1973, President Nixon appointed justices who were more concerned about crime control than protecting the disadvantaged. Since that time, the Court, while not overturning the Warren Court’s landmark decisions, has tended to limit them, with the result that the police have been subject to less constitutional scrutiny. At the same time, an important legacy of continued judicial attention to police practices is that both federal and state legislatures have for the most part abdicated their role in establishing rules in this area.
The judiciary has not created its rules out of whole cloth, however. Most of the important limitations on police authority in the United States are based on interpretations of four provisions of the Bill of Rights. The Fourth Amendment prohibits the government’s “unreasonable” search and seizure, and sets out the requirements for arrest and search warrants. The Fifth Amendment states that “[no] person … shall be compelled in any criminal case to be a witness against himself,” language that has been construed to prohibit coercive practices during police interrogation. The Fifth Amendment (and the Fourteenth Amendment, ratified after the Civil War) also contains the “due process” clause, which prohibits deprivations of life and liberty “without due process of law.” Courts have construed this language to require the government to act fairly when it exercises its power to punish and, in the context here, have held that the clause places limits on the conduct of interrogations, identification procedures, and undercover operations. Finally, the Supreme Court has construed the Sixth Amendment’s guarantee of the “assistance of counsel” during “criminal prosecutions” to require counsel during interrogations and lineups that take place after a defendant is formally charged. The Exclusion Remedy.
Probably the most conspicuous aspect of the Warren Court’s attempts to regulate police practices is the mechanism it adopted to sanction unconstitutional actions by the police—namely, the exclusion or “suppression” of evidence that is unconstitutionally obtained through a search, seizure, interrogation, or lineup. The Warren Court appeared to view the exclusion remedy primarily as a means of avoiding judicial complicity in police illegality, but in more recent years the Court has made clear that the remedy’s sole purpose is to deter police misconduct. Whatever its rationale, a successful suppression motion can often lead to dismissal of charges against the accused for lack of evidence, with estimates of convictions lost because of exclusion ranging from a [half] percent to over [two] percent of all arrests. That result has made the exclusionary rule controversial; most other countries resort to other means of regulating the police.
To the extent the rationale for exclusion is deterrence of police misconduct, empirical support for the remedy is not particularly strong. In the vast majority of cases in which police seize or search a person, for instance, no arrest is made, and thus the rule has no impact. Even when an arrest and prosecution occurs, the legality of the arrest and any accompanying search or interrogation is seldom litigated because the vast majority of cases are resolved through plea bargaining, often before a suppression hearing can take place. When the constitutional issues are litigated, police know that their version of the action is much more likely to be given credence than the suspect’s, and they also know that the fact that evidence was found (which is always the case in a suppression hearing) influences judicial decisions about the legality of the conduct in their favor. On those rare occasions when exclusion occurs, months may have passed since the illegal action, undermining any deterrent effect. More importantly, the party harmed by exclusion is not the officer but the prosecutor; the primary job of the police is to get a “collar,” not ensure conviction. Although some proponents of the rule argue that it has at least prompted police departments to improve the training of their officers, research indicates that police understanding of the Fourth and Fifth Amendment’s rules is minimal at best.
On the other hand, there is no doubt that without exclusion, the rules governing searches, interrogations, and other investigatory procedures would be violated even more frequently, given the pressure on the police to combat crime. Other means of ensuring that the Constitution is followed have proven futile, as the Court pointed out in Mapp v. Ohio (1961), the case that adopted the exclusionary rule in Fourth Amendment cases. Damages against the police and police departments are difficult to obtain, largely because juries tend to favor the police, and police departments are seldom willing to impose sanctions on their own members for violations of abstract constitutional rules. The exclusionary remedy, flawed as it is, may be the most effective means of enforcing the Constitution. Searches and Seizures.
The Fourth Amendment drafters were principally interested in curtailing the use of the “general warrant,” which had given British soldiers wide-ranging authority to search at their whim for seditious literature and uncustomed goods. Thus, the Amendment includes a “warrant clause” that requires that warrants be based on probable cause and spell out with particularity the place to be searched and the things or persons to be seized. The “reasonableness clause” declares that “the right of the people to be secure in their houses, persons, papers and effects from unreasonable searches and seizures shall not be violated.” Ads by Google
As interpreted by the Warren Court, these two clauses express a preference that arrests and searches be authorized by a warrant, issued by a “neutral and detached magistrate” who has found probable cause (akin to a more-likely-than-not level of certainty). However, in practice, only about 5 percent of all searches and arrests are based on warrants, given the numerous exceptions to the so-called “warrant requirement” developed over the past 200 years. For instance, if police enter a house in hot pursuit of a suspect, no warrant is required. Furthermore, virtually any public arrest, and almost all searches outside the home, including those involving searches of arrested persons and vehicles, may be conducted without a warrant. Research on the warrant process indicates that it may not provide significant protection against arbitrary actions in any event, since magistrates often review warrant applications in a cursory manner.
The courts have also held that seizures short of arrest, as well as some types of searches, not only do not require a warrant, but also need not be based on probable cause. Stops (brief detentions) and frisks (patdowns) require only reasonable suspicion, a level of certainty less than probable cause. Seizures considered even less significant, such as roadblocks, do not require any individualized suspicion, although they must still be conducted in a reasonable manner (e.g., with notice to drivers, and placement controlled by central office authorities). Finally, police actions that are not considered “searches,” because they do not infringe “reasonable expectations of privacy” (e.g., going through garbage, flying over backyards, use of binoculars to look at open fields), or “seizures” (e.g., brief, casual questioning) need not even be “reasonable” because they do not involve the Fourth Amendment at all. The same is true of searches authorized by voluntary consent, which constitute a large proportion of police intrusions onto private property, suggesting that not all of these consents are entirely “voluntary.”
Probably the most controversial aspect of modern search and seizure law is the concept of “aggressive patrolling,” a means of using stop and frisk authority to make the police presence felt in certain neighborhoods, remove weapons and drugs from the streets, and turn targets into informants. Because arrests are rarely made in this context, the exclusionary rule is almost useless as a deterrent. An analogous strategy occurs in connection with traffic stops. Because there are so many traffic laws—governing speed, turning signals, equipment, and the like—the police can stop almost any driver for a violation, and then search the car if something suspicious is spied in plain view, consent is obtained, or if the occupant can be arrested for a custodial offense (which the Court has held authorizes search of the entire car’s interior). Although such traffic stops might serve merely as a pretext to check out the officer’s “hunch” that the occupant is engaged in more serious crime, the Supreme Court has held that the officer’s hidden agenda is irrelevant to Fourth Amendment analysis. Some view these police techniques as necessary tactics in the war on drugs and gangs, while others believe they are reminiscent of the general warrants that gave rise to the Fourth Amendment in the first place. Interrogation.
During the nineteenth century, confessions obtained by the police were occasionally excluded as unreliable under state or federal evidentiary law, but it was not until 1936 that the U.S. Supreme Court held that the due process clause prohibits the admission of confessions that were “involuntary” in the “totality of the circumstances.” In a series of cases, the Court applied the involuntariness doctrine to invalidate confessions obtained through torture, threats against family members, and deprivation of basic amenities. By the 1960s, however, the Court felt that the voluntariness test failed to provide police and judges sufficient guidance. In 1964, it decided that under the Sixth Amendment, defendants who are formally charged are entitled to counsel during any questioning by the state. Two years later, the Court decided Miranda v. Arizona (1966), which held that the Fifth Amendment privilege against self-incrimination requires the police to tell anyone subjected to custodial interrogation—even interrogation that occurs prior to formal charging—that he has a right to remain silent, that anything he said can be used against him, that he has a right to counsel during interrogation, and that counsel will be supplied if he cannot afford one.
Dire predictions that Miranda would end custodial interrogation never materialized. Indeed, it has done very little to curtail police abuse of the interrogation process. The post-1966 confession rate during custodial interrogation appears to be almost identical to the pre-1966 rate (between 50 percent and 60 percent). There is less physical coercion during interrogation today than when Miranda was decided, but that is probably part of a longer term trend resulting from greater professionalization of the police and pre-Miranda decisions outlawing force. Most importantly, the same techniques the Miranda Court had criticized as part of the “inherently coercive” atmosphere of custodial interrogation—including the “good cop bad cop” routine, the “pretended friend” technique, and exaggeration and falsification of evidence against the suspect—are still endorsed by police manuals today.
Other means of regulating interrogation have been proposed, including mandatory presence of counsel, taping of interrogations, and even a return to judicial questioning (which was the primary means of interrogating suspects in colonial times given the absence of police forces). But the Court’s reaffirmation of Miranda in 1999 may ironically have ensured that these alternatives are never seriously considered in most jurisdictions. In the meantime, foreign countries have adopted all or part of the Miranda requirements, and added their own protections. For instance, interrogations in the station house in England must be taped, and affirmative misrepresentations by the police in Germany are prohibited. Identification Procedures.
Procedures used to determine the identity of the perpetrator involve either comparison of specimens (such as fingerprints, blood type, or DNA) or eyewitness identifications using lineups, photo arrays, and showups (one-on-one confrontations). Comparison procedures require careful attention to the specimen “chain of custody,” as well as use of scientifically reliable tests. Eyewitness identification procedures are even more prone to error. Research has shown that perception and memory deficits, especially in connection with stressful events involving weapons, can be significant. Gaps in memory may then be filled by the conscious and unconscious suggestions of police and other individuals.
Accordingly, the Warren Court held that the due process clause prohibits unnecessarily suggestive identification procedures, such as “sore thumb” lineups, where the suspect is the only obvious selection, or one-on-one confrontations that could have been avoided. It also held that defendants subjected to lineups are entitled to counsel. However, later Court decisions held that unnecessarily suggestive procedures are not unconstitutional as long as the resulting identification can be shown to be reliable, and that the right to counsel only attaches when the defendant has been formally charged, which often occurs well after most identifications have taken place. Under these rules, few identifications are excluded, even though, in contrast to situations involving violations of the Fourth Amendment or Miranda, suggestive procedures are more likely to produce unreliable evidence. Undercover Investigation.
As crime became more clandestine and organized during the late nineteenth century, police turned increasingly to sting operations, informants, and other types of undercover activity. Such activity is subject to very little regulation. The Supreme Court has held that citizens assume the risk that their acquaintances are working for the government, and thus they are not protected from undercover intrusions by the Fourth Amendment, which as noted earlier is only implicated by infringements of “reasonable” expectations of privacy. Nor does questioning by a covert agent violate the Fifth Amendment, since no coercion is involved, or the Sixth Amendment, if it occurs before formal charging occurs, which it usually does. The only constitutional limitation on pre-charge undercover work comes from the due process clause, which bars law enforcement conduct that “shocks the conscience.” While the Court has suggested that threats of violence by an undercover agent would violate due process, typical undercover activity is unlikely to do so.
Another limitation on undercover activity is the common-law defense of “entrapment.” As defined in the federal courts and most states, such a defense is available only if the defendant can show he was not predisposed to commit the crime proposed by the undercover agent. Because most individuals approached by government agents have prior records, this defense is rarely successful. But it does prevent undercover police from offering strong inducements to otherwise innocent people to commit crimes.
The effectiveness of undercover law enforcement techniques is unclear. Studies of large-scale sting operations have generally failed to show a significant reduction in crime, perhaps because the operations capture criminals who would have been caught in any event using overt methods, or perhaps because they often involve creation of opportunities to commit crime (e.g., fencing operations). On the other hand, there is no doubt that a large percentage of arrests and searches are based on information from “confidential informants,” whose identities are protected by the police because of their involvement with other criminals who might retaliate. The disadvantage of relying on such individuals is that they will sometimes lie in order to obtain money or avoid prosecution. Moreover, because these informants are “confidential,” judges have difficulty verifying that they exist; in some cases, police have fabricated the existence of informants in support of a warrant application. Future Challenges.
The increasing randomness of crime, and the continuing perception that society must vigorously pursue the “war on drugs,” has ensured the continuous development of new policing techniques. These include “community policing,” which emphasizes close police-citizen contact and mutual problem-solving, fine-tuned “loitering” laws designed to permit removal of gang members and other undesirables, community roadblocks as a means of cordoning off high-crime areas, and pervasive video surveillance, sometimes using magnification and illumination capacities. Some of these techniques may well prove to be very effective in crime prevention. But each also presents potentially significant threats to privacy and autonomy.
This article demonstrates the total lack of societal controls on the Modern Police. Legislators, City Hall, have abdicated control of the Police to the Judiciary. The Judiciary is only interested in not “not participating” in search and seizure violations by the Police.
So “you people” in the interest of safety, or the illusion thereof have empowered, even demanded a defacto occupying force to rival the army of King George the III.
The desire to transfer risk from the individual to society has created a Police force that routinely, and by training ignores search and seizure, and probable cause. “You people” let them do it.
Yup and far too many Freepers and Conservatives still gleefully cheer it on to this very day...
They cheer it because it is not happening to them... Yet.
A Liberal is one mugging away from becoming a Conservative. Now...it’s the badges doing the mugging.
So I am curious...
How many Conservatives on Freerepublic will vote “no” on bond issues, bond extensions, sales tax increases, sales tax extensions designed to fund their local Police and court system?
Hmmm, let me guess.
I’ll be that no vote ,,, In my area there are at least 3 overlapping police agencies ,, each of which is grossly overstaffed... The only reason bond issues and threats of “cutting” police , fire , teachers , parks ever comes up is to get weak minded individuals to bend over for the taxman AGAIN and AGAIN...
You vote for that bond issue...
I am 42.
I have voted against everything. The veterans rec center, the dog run, the senior citizens event coordinator, the fund for one armed orphaned children of nuns who died while driving school buses full of disabled puppies.
It’s time to starve the beast. Vote irresponsibly locally.
“the fund for one armed orphaned children of nuns who died while driving school buses full of disabled puppies.”
You callous cold-hearted conservative! :-)
do we really need such overlapping agencies?
Is a highway patrol needed?
do we need a big county sherriff when local PD can do the job? (or vice versa)
In my area we have local pd , county and of course highway patrol ... it’s a nightmare ,, the city boundaries are riddled with a city block here and there that aren’t in the “city limits” as political favors to exclude people from city taxes... if you have a minor car crash you could be hours while they decide among themselves who is supposed to respond..
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