|
UNDERSTANDING SEARCH AND SEIZURE LAW
Learn when the government can invade your privacy to hunt for evidence of a crime.
The Fourth Amendment to the U.S. Constitution places limits on the power of the police to make arrests, search people and their property, and seize objects and contraband (such as illegal drugs or weapons). These limits are the bedrock of search and seizure law. This article covers the basic issues that you should know, beginning with an overview of the Fourth Amendment itself.
The Fourth Amendment: Protecting Your Privacy
The Fourth Amendment to the U.S. Constitution 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 persons or things to be seized."
The search and seizure provisions of the Fourth Amendment are all about privacy. To honor this freedom, the Fourth Amendment protects against "unreasonable" searches and seizures by state or federal law enforcement authorities.
The flip side is that the Fourth Amendment does permit searches and seizures that are considered reasonable. In practice, this means that the police may override your privacy concerns and conduct a search of your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel, or whatever, if:
- the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or
- the particular circumstances justify the search without a warrant first being issued.
When the Fourth Amendment Doesn't Protect You
The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues.
Courts use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched:
- Did the person actually expect some degree of privacy?
- Is the person's expectation objectively reasonable -- that is, one that society is willing to recognize?
For example, a person who uses a public restroom expects not to be spied upon (the person has an expectation of privacy) and most people — including judges and juries — would consider that expectation to be reasonable (there is an objective expectation of privacy as well). Therefore, the installation of a hidden video camera by the police in a public restroom will be considered a "search" and would be subject to the Fourth Amendment's requirement of reasonableness.
On the other hand, when the police look for and find a weapon on the front seat of a car, it is not considered a search under the Fourth Amendment because it is very unlikely that the person would think that the front seat of the car is a private place (an expectation of privacy is unlikely), and even if the person did, society is not willing to extend the protections of privacy to that particular location (no objective expectation of privacy).
A good example of how this works comes from a U.S. Supreme Court case in which the court held that a bus passenger had a legitimate expectation of privacy in an opaque carry-on bag positioned in a luggage rack above the passenger's head, and that the physical probing by the police of the bag's exterior for evidence of contraband constituted a search subject to Fourth Amendment limitations. (Bond v. U.S., No. 98-9349 (April 17, 2000).)
Restrictions on Private Security Personnel
Private security personnel currently outnumber police officers in the United States by three to one. As a result, whether you're shopping in a supermarket or a pharmacy, working in an office building, or visiting a friend in a housing project, you may be more likely to be confronted by a security guard than by a police officer. At the present time, the Fourth Amendment does not apply to searches carried out by non-governmental employees like private security guards.
For example, assume that a shopping mall security guard acting on a pure hunch searches a teenager's backpack. Inside the backpack the guard finds a baggie containing an illegal drug. The guard can detain the teenager, call the police, and turn the drug over to a police officer. The drug is admissible in evidence, because the search was conducted by a private security guard. As private security guards increasingly exercise traditional police functions, courts may one day apply Fourth Amendment guidelines to their conduct.
What Happens When A Search Violates the Fourth Amendment
The exclusionary rule. If, upon review, a court finds that an unreasonable search occurred, any evidence seized as a result of the search cannot be used as direct evidence against the defendant in a criminal prosecution, state or federal. This rule, established by the U.S. Supreme Court in 1961, has come to be known as the "exclusionary rule."
To this day, many commentators criticize the exclusionary rule on the ground that it unfairly "lets the criminal go free because the constable has erred." But the rule's supporters argue that excluding illegally seized evidence is necessary to deter police from conducting illegal searches. According to this deterrence argument, the police won't conduct improper searches if the resulting evidence can't be used to convict the defendant.
Fruit of the poisonous tree doctrine. In addition to being excluded as evidence against the defendant, evidence resulting from an illegal search may not be used to discover other evidence, under a legal rule colorfully known as the "fruit of the poisonous tree" doctrine. The "tree" is the evidence that the police illegally seize in the first place; the "fruit" is the second-generation product of the illegally seized evidence. Both tree and fruit are inadmissible at trial.
Example
Officer Wiley arrests Hy Lowe for selling phony telephone cards. A judge rules that Officer Wiley illegally entered Lowe's home and improperly seized a map showing the location where Lowe hid the phone cards. Officer Wiley then found the phone cards in that location. Because Officer Wiley obtained the map through an illegal search, the phone cards are the fruit of that unlawful search and are therefore inadmissible into evidence.
Some defendants believe that if they can show that a search was illegal, the case must be dismissed. Not true. If a prosecutor has enough other evidence to prove the defendant guilty, the case can continue. Also, the illegally-seized evidence can be:
- considered by a judge when deciding on an appropriate sentence following conviction
- admitted in civil cases and deportation cases, and
- in some circumstances, be used by a prosecutor to impeach (attack the credibility of) a witness who testifies in the trial.
To learn more about search and seizure law, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman (Nolo).
POLICE QUESTIONING: WHEN MIRANDA WARNINGS ARE REQUIRED
What really happens if the police fail to read a suspect his rights.
Many people believe that if they are arrested and not "read their rights," they can escape punishment. Not true. But if the police fail to read a suspect his or her rights, the prosecutor can't use anything the suspect says as evidence against the suspect at trial.
Miranda Warnings
Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), a defendant's rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:
- You have the right to remain silent.
- If you do say anything, what you say can be used against you in a court of law.
- You have the right to consult with a lawyer and have that lawyer present during any questioning.
- If you cannot afford a lawyer, one will be appointed for you if you so desire.
- If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)
When the Miranda Warning Is Required
It doesn't matter whether an interrogation occurs in a jail, at the scene of a crime, on a busy downtown street, or the middle of an open field: If a person is in custody (deprived of his or her freedom of action in any significant way), the police must give a Miranda warning if they want to question the suspect and use the suspect's answers as evidence at trial.
If a person is not in police custody, however, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. This exception most often comes up when the police stop someone on the street to question him or her about a recent crime or the person blurts out a confession before the police have an opportunity to deliver the warning.
Pre-Arrest Questioning
People are often surprised to learn that if a person hasn't yet been arrested, the police may question the person and use the answers in court without first providing the Miranda warning.
Responding to Questions Before an Arrest
Does a person have to respond to police questions if he or she hasn't been arrested? Generally, no. A police officer generally cannot arrest a person simply for failure to respond to questions.
The Fifth Amendment to the U.S. Constitution guarantees the "right of silence." This means that unless a police officer has "probable cause" to make an arrest or a "reasonable suspicion" to conduct a "stop and frisk," a person approached by the police officer has the legal right to refuse to answer questions. Indeed, a person who has reason to believe that he or she is a potential suspect should politely decline to answer questions, at least until after consulting an attorney.
However, there are several exceptions to this rule.
Loitering. The "right to silence" rule may not hold true if the officer suspects the person of loitering. Laws in effect in many states generally define loitering as "wandering about from place to place without apparent business, such that the person poses a threat to public safety." Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person's activities. If the person fails to comply, the officer can arrest the person for loitering.
Traffic stops. Another situation where answers to police questions are usually required is when drivers are stopped for suspected traffic violations. An officer has the right to demand personal identification — usually a driver's license and the vehicle registration. A driver's refusal to supply the information elevates the situation to a more serious offense, for which the driver usually can be arrested. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.
Stop and Frisk Searches
A "stop and frisk" is when a police officer stops a person to question them and, for self-protection only, carries out a limited pat-down search for weapons (a "frisk").
A police officer may stop and frisk a person if the officer has a "reasonable suspicion" that the person is engaged in criminal activity. This is an easier test for a police officer to meet than the "probable cause" that is required to make an arrest. In one recent U.S. Supreme Court case, the Court ruled that running away from the police is enough of a reason for the police to stop and frisk the defendant.
When frisking a person for weapons, police may feel a suspicious package that the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person's clothing. And, if a search produces an illegal substance, it may result in an arrest.
Post-Arrest Questioning
The almost-universal advice of defense attorneys is to keep the old mouth tightly shut when being questioned after an arrest, at least until after consulting an attorney. Suspects all too frequently unwittingly reveal information that can later be used as evidence of their guilt.
Consequences of Failure to Provide Miranda Warning
Without a Miranda warning, nothing a person says in response to a custodial questioning can be used as evidence against the person at his or her trial. In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial.
For example, if a suspect tells the police where a weapon is hidden and it turns out that the suspect provided this information in response to improper questioning, the police will not be able to use the weapon as evidence — unless the police can prove that they would have found the weapon without the suspect's statements.
When Police Come Down Too Hard
Information that is voluntarily disclosed to a police officer (after the person has been properly warned) is generally admissible at trial. The key word is "voluntary." Police officers are not allowed to use physical force or psychological coercion to get a suspect to talk to them. In addition, any evidence that the police obtain as the result of a coerced statement is equally inadmissible.
To learn more about Miranda, and to get answers to your questions about every part of a criminal case, read The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-Barrett (Nolo).
HOW PEOPLE GET CHARGED WITH CRIMES
Learn how police officers and prosecutors initiate criminal cases.
How does a criminal case get started? Usually with a police arrest report. The prosecutor then decides what charges to file, if any. The case can then go to a grand jury for an indictment or to a preliminary hearing where a judge decides if there is enough evidence to proceed. Here's how this all works.
Arrest Reports and Criminal Charges
After an arrest, the arrest report is sent to a prosecutor, whose job it is to initiate and prosecute criminal cases. Arrest reports summarize the events leading up to arrests and provide numerous other details, such as dates, time, location, and weather conditions of the crime, and witnesses' names and addresses, if that information is available.
The prosecutor will either:
- decide that the case should be charged (as a felony or a misdemeanor), and file a complaint with the trial court
- decide that the case should be charged as a felony and bring evidence before citizens serving as grand jurors, who will decide what charges, if any, to file, or
- decide that the matter should not be pursued.
Prosecutors can file charges on all crimes for which the police arrested a suspect. Or, they can file charges that are more or less severe than the charges leveled by the police.
Charges Must Be Filed Quickly
For suspects who are in custody, speedy trial laws typically require prosecutors to file charges, if at all, within 72 hours of arrest. Some jurisdictions require prosecutors to charge a suspect even sooner. For example, California requires that charges be filed within 48 hours.
However, prosecutors' initial charges are subject to change. For example, a prosecutor may not make a final decision on what charges to file until after a preliminary hearing, which may take place more than a month after arrest.
How a Prosecutor Decides Whether to File Charges
A prosecutor's decision to file charges may be influenced by factors beyond the specific facts of the incident described in the police report.
Policies on certain crimes. Some prosecution offices adopt policies on certain types of crimes, often in response to community pressure, and these policies may dictate the prosecutor's approach in any given case. For example, an office may decide that arrests for driving under the influence of drugs or alcohol will always be taken to trial and not "plea bargained" down to a lesser offense.
Political ambition. Prosecutors may also be influenced by their own political ambitions. Most prosecutors are elected officials, and many of them view their position as a stepping-stone to higher office. Their decisions on charges are often affected by public opinion or important support groups. For example, a prosecutor may file charges on every shoplifting case, no matter how weak, to curry favor with local store owners who want to get the word out that shoplifters will be prosecuted.
What justice requires. Finally, some decisions are influenced by the prosecutor's sense of what justice requires in the case before her. Prosecutors are supposed to both enforce the law and "do justice." Doing justice means that a prosecutor occasionally decides not to prosecute a case (or files less severe charges) because the interests of justice require it, even if the facts of the case might support a conviction. For example, if an otherwise law-abiding person makes a one-time, foolish mistake, a prosecutor may decide that it would not serve any purpose to spend time and money prosecuting this person, especially when the chances that the person will re-offend are nil.
The Role of a Grand Jury
If a felony is involved, prosecutors sometimes leave it to grand juries to decide whether charges should be filed. Grand juries are similar to regular trial juries (called "petit juries") in that they are made up of randomly selected individuals. The grand jurors listen to evidence and decide whether charges should be brought against an individual (that is, they decide whether to "indict" someone).
However, unlike petit juries, which only sit on one case, grand juries involve a time commitment that typically lasts between 6 and 18 months. The grand jurors may address many cases in the course of their service. In addition, these crucial differences exist:
- Petit jurors decide whether defendants are guilty. Grand juries decide whether there is enough evidence to warrant a trial.
- Grand juries meet in secret proceedings. Petit juries serve during public trials.
- Grand juries have 15-23 people. By contrast, a petit jury usually consists of between 6 and 12 people.
- Petit juries generally have to be unanimous to convict a defendant. Grand juries need not be unanimous to indict. In the federal system, for example, an indictment may be returned if 12 or more jurors agree to indict.
How a Grand Jury Works
When a prosecutor brings a case to a grand jury, he presents the jurors with a "bill" (the charges) and introduces evidence — usually the minimum necessary, in the prosecutor's opinion — to secure an indictment. The proceedings are secret; it is standard practice to call witnesses to testify against the suspect without the suspect or the suspect's lawyer present. Indicted suspects can sometimes later obtain transcripts of grand jury proceedings, however — and this is a big reason why prosecutors like to keep the evidence to the minimum.
Although the prosecutor can also call the suspect as a witness, this is not typically done. When suspects are called, they often refuse to testify by invoking their privilege against self-incrimination under the Fifth Amendment to the U.S. Constitution.
If the grand jury decides to indict, it returns what is called a "true bill." If not, the grand jury returns a "no-bill." But even if the grand jury returns a no-bill, the prosecutor may eventually file charges against a suspect. Prosecutors can return to the same grand jury with more evidence, present the same evidence to a second grand jury, or (in jurisdictions that give prosecutors a choice) bypass the grand jury altogether and file a criminal complaint.
Preliminary Hearings
If the prosecutor decides to file a complaint rather than present the case to a grand jury, and the case is a felony, the defendant is entitled to a preliminary hearing at which the prosecutor must show that the state has enough evidence of the crime to warrant a trial.
However, if the case proceeds by grand jury indictment, no preliminary hearing need be held. For this reason, many prosecutors choose the grand jury indictment process because they don't have to reveal as much evidence before the trial.
For information on criminal cases from start to finish, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-Barrett (Nolo).
BAIL: GETTING OUT OF JAIL AFTER AN ARREST
Everything you need to know about bail: what it is, how it's set, and how to pay it.
A person's first thought upon landing in jail is often how to get out — and fast. The usual way to do this is to "post bail."
Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so. If the defendant appears in court at the proper time, the court refunds the bail. But if the defendant doesn't show up, the court keeps the bail and issues a warrant for the defendant's arrest.
How Bail Is Set
Judges are responsible for setting bail. Because many people want to get out of jail immediately (instead of waiting up to five days to see a judge), most jails have standard bail schedules that specify bail amounts for common crimes. An arrested person can get out of jail quickly by paying the amount set forth in the bail schedule.
The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. Remember: The purpose of bail is to allow the arrested person to remain free until convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep the suspect from fleeing before a case is over.
So much for theory. In fact, many judges set an impossibly high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. Although bail set for this purpose — called preventative detention — is thought by many to violate the Constitution, courts have uniformly rejected this argument (the issue has never been decided by the U.S. Supreme Court, the ultimate arbiter of what is and is not constitutional).
If a defendant can't afford the amount of bail on the bail schedule, he or she can ask a judge to lower it. Depending on the state, this request must be made either in a special bail setting hearing or when the defendant appears in court for the first time (usually called the arraignment).
Paying Bail
Bail can take any of the following forms:
- cash or check for the full amount of the bail
- property worth the full amount of the bail
- a bond (that is, a guaranteed payment of the full bail amount), or
- a waiver of payment on the condition that the defendant appear in court at the required time (commonly called "release on one's own recognizance").
A bail bond is like a check held in reserve: It represents the arrested person's promise that he or she will appear in court when required. The bail bond is purchased by payment of a nonrefundable premium (usually about 10% of the face amount of the bond).
A bail bond may sound like a good deal, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. On the other hand, the 10% premium is nonrefundable. In addition, the bond seller may require "collateral." This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person's valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.
Getting Out of Jail Free
Sometimes people are released "on their own recognizance," or "O.R." A defendant released O.R. must simply sign a promise to show up in court and is not required to post bail.
A defendant commonly requests release on his or her own recognizance at the first court appearance. If the judge denies the request, the defendant then asks for low bail.
In general, defendants who are released O.R. have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include the following:
- The defendant has family members (most likely parents, a spouse, or children) living in the community.
- The defendant has resided in the community for many years.
- The defendant has a job.
- The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.
- The defendant has been charged with previous crimes and has always appeared as required.
For more information on bail, and everything else you need to know about criminal law, The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-Barrett (Nolo).
California DUI Lawyer
|
