Legal Guide for Police

Constitutional Issues

Jeffery T. Walker, Craig Hemmens

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429682049
• Edition: 11
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Legal Guide for Police: Constitutional Issues, 11th Edition, is a valuable tool for criminal justice students and law enforcement professionals, bringing them up-to-date with developments in the law of arrest, search and seizure, police authority to detain, questioning suspects and pretrial identification procedures, police power and its limitations, and civil liability of police officers and agencies. Including specific case examples, this revised edition provides the most current information for students and law enforcement professionals needing to develop an up-to-date understanding of the law.

Authors Walker and Hemmens have included introductory and summary chapters to aid readers in understanding the context, importance, and applicability of the case law. A new chapter covers warrantless searches involving cell phones and other technology, as well as vehicles. All chapters have been updated to reflect U.S. Supreme Court decisions up to and including the 2018 term of court. Important cases added to this edition include: Riley v. California (2014), Florida v. Jardines (2013), Birchfield v. North Dakota (2016), Heien v. North Carolina (2014), and Byrd v. United States (2018). A helpful Appendix contains the Bill of Rights and the Fourteenth Amendment, and a Table of Cases lists every case referenced in the text.

Also available as an audiobook.

CHAPTER

1

Introduction

§ 1.1 CRIMINAL PROCEDURE

A question that concerns all democratic societies is how much authority to grant to the government vis-à-vis the individual citizen. Social contract theory as enunciated by Thomas Hobbes and John Locke states that by choosing to live among others, individuals give up some of their liberties and permit the state to intervene in their lives. The state provides certain protections that individuals could not achieve on their own. But how much intervention and in what manner the state may do so are vital questions with which the courts have struggled over the centuries.

In this book we examine the law of criminal procedure. Criminal procedure law sets forth the appropriate behavior for the police, as agents of the state, as they investigate possible criminal activity. Whereas criminal law sets forth the appropriate code of conduct for all citizens, criminal procedure comprises the rules that govern the manner in which the state may go about depriving an individual of his or her liberty. Balancing the rights of the individual and the authority of the state and its agents is a difficult but crucial process.

§ 1.2 SOURCES OF CRIMINAL PROCEDURE LAW

The legal foundation for most criminal procedural decisions is the United States Constitution, including the Bill of Rights and the Fourteenth Amendment. The Bill of Rights sets forth 23 individual rights, and the Fourteenth Amendment’s guarantee of “due process” has been interpreted by the U.S. Supreme Court to incorporate many of the individual rights contained in the Bill of Rights. The Bill of Rights originally was conceived as applying only to the federal government; but during the twentieth century, the Supreme Court interpreted the due process clause of the Fourteenth Amendment as including, or incorporating, many of the individual rights contained in the Bill of Rights, thus making these rights applicable to the states. These include most of the procedural criminal provisions of the Fourth, Fifth, Sixth, and Eighth Amendments.

Incorporation means that the individual right (such as the Fourth Amendment right to be free from unreasonable searches and seizures) is included in the Fourteenth Amendment’s guarantee of due process or equal protection. Rights incorporated in the Fourteenth Amendment are those the Court has deemed “fundamental.” These rights are applied against the states and include most of the criminal procedure-related provision of the Fourth, Fifth, Sixth, and Eighth Amendments.

Other sources for criminal procedure law are state constitutions and federal and state statutes. States are free to provide more individual rights than the federal constitution, but states cannot deny or diminish any federal constitutional rights. In the past, states were seen as perhaps less protective of the rights of criminal suspects than the federal government, yet in the last two decades, a number of state courts have interpreted their state constitutions as providing greater protections of individual liberties than the federal government. To say that a piece of legislation passes constitutional muster is to say only that it passes minimal standards of fairness.

Other sources of criminal procedural law come from the provisions of the Bill of Rights, in particular the Fourth, Fifth, and Sixth Amendments. Courts frequently are asked to interpret the meaning of these amendments and to apply them to current fact situations. The Fifth Amendment prohibits compelling people to testify against themselves. But does requiring a person to take a Breathalyzer test or give a blood sample constitute testimony when the results may be used against that person at trial? The Fourth Amendment prohibits the unreasonable seizure and search of persons, places, and effects, but what is an “effect”? And what is “unreasonable”? Courts must answer these questions to determine when the police have exceeded the scope of their authority, either intentionally or unintentionally.

The U.S. Supreme Court has the final word on the constitutionality of any state action that is challenged as violating a constitutional right. Consequently, much of criminal procedure law comes from Supreme Court decisions. As courts decide only the case before them, and do not issue policy directives, criminal procedure law has developed fitfully, on a case-by-case basis. Much of criminal procedural law has been written in the past 75 years, since the Supreme Court began to apply the provisions of the Bill of Rights to the states, which conduct the bulk of criminal investigation and prosecution. In this book we focus on Supreme Court decisions involving criminal procedure, and use lower court cases to illustrate the principles enunciated by the Supreme Court. Before we do this, however, we need to discuss the role of the judiciary in criminal justice.

§ 1.3 JUDICIAL FUNCTIONS

Courts provide several functions. First, courts settle disputes by providing a forum for obtaining justice and resolving disputes through the application of legal rules and principles. It is in court that injured parties may seek compensation and the state may seek to punish wrongdoers. While the courtroom is obviously not the only place that people may go to settle disputes, Americans traditionally have turned to the courts for redress.

Second, courts make public policy decisions. Policymaking involves the allocation of limited resources (such as money and property) to competing interests. America has a long tradition of settling difficult policy questions in the courtroom rather than in the legislature. This is because politicians often avoid settling complex and/or difficult problems for fear of alienating their constituents or because the competing interests are unable to compromise. In addition, the rights of minorities are often unprotected by the legislature, which by its very nature represents primarily the interests of the majority, so courts are forced to step into the breach.

Third, courts serve to clarify the law through interpretation of statutes and the application of general principles to specific fact patterns. Courts are different from the other branches of government in many ways, but perhaps the most significant difference is that courts are reactive—courts do not initiate cases but rather serve to settle controversies brought to them by others—plaintiffs and defendants, in legal parlance. This frequently involves the interpretation of statutes written by the legislature.

Statutes are enacted by the legislature under the authority granted to it by the Constitution. A constitution creates a government—it literally constitutes the government. Legislatures are given authority to act in certain areas, and within these areas, they may pass legislative enactments or bills, often referred to as statutes, which are collected into codes, such as the criminal code.

Acts of the legislature are not, however, lawful per se. In other words, just because a legislature passes a bill does not mean the bill is a lawful exercise of the legislature’s authority. Acts of the legislature may not limit the Constitution under which the legislation was created. For instance, the U.S. Congress may not lawfully pass legislation that abridges the Fourth Amendment.

Who decides when the legislature has acted beyond the scope of its authority? In the United States, the Supreme Court has the final say as to the constitutionality of statutes passed by either state or federal legislatures. This is known as the power of judicial review.

Statutes often are written broadly, leaving much room for interpretation. This is also true of the U.S. Constitution. For example, the Fourth Amendment prohibits “unreasonable searches and seizures.” But what is unreasonable? What constitutes a search or a seizure? There are no easy answers to these questions.

Why are statutes ambiguous? Why does the legislature not write more clearly and explain exactly what it means? There are several reasons. First, it is difficult to define, in a few sentences, something involving human conduct—there is an almost infinite range of possible actions by individuals.

Second, legislators are politicians, and politics involves compromise. Thus, a statute may be written so that it appeals to the greatest possible number of legislators, but in doing this, the language of the statute may be watered down and made less precise rather than more precise.

§ 1.4 THE SUPREME COURT AND THE POLICE

Historically, the Supreme Court paid little attention to the activities of state and local police agencies. There were three primary reasons for this lack of attention: police forces remained relatively small and unorganized until the twentieth century; defendants in criminal cases rarely challenged the means by which police obtained evidence; and the Fourth Amendment, which today is the primary tool for controlling police conduct, did not apply to the activities of state and local police.

The Supreme Court in Barron v. Baltimore (1833) held that the Bill of Rights, of which the Fourth Amendment is a part, did not apply to the actions of state and local governmental agencies, but instead was intended to apply only to the activities of federal agencies. As the bulk of police work was conducted by state and local agencies, the decision in Barron meant that there were relatively few instances in which the Supreme Court was called upon to interpret the meaning of the Fourth Amendment.

In Weeks v. United States¹ the Court held that evidence illegally obtained by federal law enforcement officers must be excluded in all federal criminal prosecutions. As the Court had not at that time applied the provisions of the Fourth Amendment to the states, this decision led to a practice commonly known as the “silver platter doctrine,” in which federal courts admitted evidence illegally obtained by state law enforcement officers, who then turned over the evidence to federal agents. Under this doctrine, such evidence was deemed admissible because the illegal search and seizure was committed by state agents.

It was not until 1949, in Wolf v. Colorado, that the Supreme Court determined that the due process clause of the Fourteenth Amendment “incorporated” the Fourth Amendment and applied it to state action. Incorporation of the Fourth Amendment meant that the activities of state and local law enforcement agencies were now subject to the strictures of the Fourth Amendment. Finally, in 1961, in Mapp v. Ohio the Court put the issue to rest and applied the exclusionary rule to the states, through the due process clause of the Fourteenth Amendment.

During the 1960s the Supreme Court handed down a number of decisions involving an interpretation of the meaning of the Fourth Amendment. While a complete discussion of these cases is beyond the scope of this chapter, a fair summary of these decisions is that they provided criminal suspects with a number of rights that the police were obliged to respect in their investigation of possible criminal activity.

While many of these decisions provided criminal defendants with greater protections, several decisions provided the police with tremendous power to investigate crime. These included, in particular, Camara v. Municipal Court (1967), and Terry v. Ohio (1968).

In Camara v. Municipal Court, the Supreme Court ruled that administrative search warrants may be issued on less than probable cause. The Court justified lowering the standard of probable cause by balancing the need to search against the limited invasion of privacy that an administrative search involved. Administrative searches are concerned not with uncovering evidence of criminal activity, but are designed to allow the government to ensure compliance with various health and safety regulations.

In Terry v. Ohio, the Supreme Court ruled that police could stop and frisk someone on the street based on “reasonable suspicion” that a crime had occurred. Reasonable suspicion, the Court acknowledged, was less than probable cause. The Court justified relaxing the probable cause requirement by again balancing the need to investigate crime against the limited invasion of privacy that a brief detention involved. We will discuss this case in greater detail in Chapter 7.

Taken together, these two decisions provided police officers with a great deal of flexibility in their approach to the investigation of criminal activity. The result is a lot of cases ending up in the Supreme Court to determine the appropriate parameters of police investigatory practices.

§ 1.5 PACKER’S MODELS OF THE CRIMINAL JUSTICE SYSTEM

Every matter of controversy in criminal justice has as its core at least two competing sets of ideas. For instance, consider a criminal trial. The prosecutor presents a case that represents the interests of the state, one that is designed to prove that the defendant is guilty and should be held accountable for the crime with which he or she is charged. In contrast, the defense attorney presents a case in the interest of his or her client. The defense attorney attempts to raise doubt about the defendant’s guilt and insists that the legal procedures designed to protect the defendant’s rights be followed. The competing sets of values that each of these actors brings to the table—and that are found at all other stages of the criminal justice process as well—have been described by Herbert Packer as the crime control and due process perspectives.²

Packer’s models of the criminal process are just that—models, and not depictions of reality. He sees them as the two ends of a continuum along which the actual operation of the criminal justice system will fall. He also cautions against depicting one model as the way things work and the other as the way things ought to work. In his words, the two models “represent an attempt to abstract two separate value systems that compete for priority in the operation of the criminal process.”³ The value systems that “compete for priority” are regulating criminal conduct and preventing crime, which the crime control model views as the most important function of the criminal process, and protecting the rights of individuals, which the due process model emphasizes. In the sections that follow, we describe the crime control and due process models in detail, focusing on their differences.

A. The Crime Control Model

As its name suggests, the crime control model views controlling crime as the most important function of the criminal justice system. The primary function of the system is to control crime by catching, convicting, and punishing those who break the law. Failure to control crime, according to this perspective, leads to a breakdown in public order. If citizens believe that laws are not being enforced, they will have fewer incentives to obey the law, which will lead to an increase in crime and to a greater risk of victimization among law-abiding citizens.

According to the crime control model, efficiency is the key to the effective operation of the criminal process. A high proportion of offenders whose offenses become known must be apprehended, tried, convicted, and sentenced. Moreover, this must be accomplished in a system where the crime rate is high and resources for dealing with crime are limited. Thus, the model emphasizes speed, which depends on informality and uniformity, and finality, which means that there should be few opportunities for challenging outcomes. The requirement of informality means that cases should be screened by police and prosecutors to determine the facts and to separate the probably innocent from the probably guilty; judicial fact-finding, which is more time-consuming and thus less efficient, should be the exception rather than the norm. Uniformity means that officials should follow routine procedures in most cases.

The metaphor that Packer uses to describe the operation of the criminal process under the crime control model is that of an assembly line. As this suggests, the goal is to move cases through the justice process as swiftly as possible. Suspects who are “probably innocent” are screened out early in the process by police and prosecutors; those who are “probably guilty” are moved quickly and perfunctorily through the remaining stages in the process and are convicted, usually by a plea of guilty, as expeditiously as possible. Thus, the system achieves the goal of controlling crime by separating the innocent from the guilty early in the process, by extracting early guilty pleas from those who are not screened out by police and prosecutors, and by avoiding trials.

A key to the operation of the crime control model is the presumption of guilt, which rests on a belief in the reliability of the screening process operated by police and prosecutors. That is, defendants who are not screened out early in the process by police and prosecutors are probably guilty and therefore can be passed quickly through the remaining stages in the process. The presumption of guilt is simply a predictio...