Chapters
One & Two 
ADJU 2 - Principles
and Procedures of the Justice System
Historical Developments
Laws, Crime Causation &
The Justice System
Search & Seizure
First Police Officers
Around 900, the first officials whom we might recognize as police officers
begin to appear — people whose primary responsibility is maintaining
order rather than helping neighbors. For each hundred, a local nobleman designates
a comes stabuli (literally, officer of the stable, the precursor to our modern
term, constable) to lead the community's law enforcement efforts, rousing
citizens and directing the action. By this time, the hundreds have been organized
into still larger groups called shires, or counties. A Crown-appointed official
known as a shire reeve (an early form of the word sheriff) oversees all the
constables in his county. When a crime is committed and the perpetrator can
be identified, a posse is organized to apprehend the lawbreaker. All able-bodied
men hearing the hue and cry are obligated to take part.
What is Law?
Sources of Law
-
Constitutional Law
-
Statutory Law
-
Common Law
-
Administrative Law
-
Executive Power
Conflict of Laws: Who's on First?
Law can come from so many different kinds of institutions and authoritative
legal documents, it is inevitable that laws will conflict. How should these
conflicts be resolved? Which law is superior?
There are two general answers to these questions. One answer is provided
by the supremacy clause in Article VI of the United States Constitution In
general this means that Federal law is superior to and overrides conflicting
state law.
An example--albeit with a different than expected outcome--involves the use
of lethal doses of controlled substances in doctor-assisted suicide situations.
Federal law prohibits physicians from prescribing "lethal doses"
of controlled substances. However, Oregon recently passed the nation's only
"doctor-assisted suicide" law (by way of a ballot initiatives) that
allows physicians to use lethal doses of controlled substances to assist in
the suicide. So, what's a doctor to do? Things heated up to the point where
federal authorities warned physicians in Oregon that if they persisted, their
federal licenses to prescribe all controlled substances (e.g., morphine) would
be pulled. U.S. Attorney General Janet Reno finally stepped into the fray
and stated that the federal drug laws would not be used to punish physicians
who chose to assist in a suicide. She recognized that the "people had
spoken" through the ballot box and allowed the Oregon law to stand as
one exception to the federal Controlled Substances law.
Another way that Federal law is superior to state law is when it preempts
areas that would otherwise be the venue of state law. This is the Doctrine
of Preemption where an inferior (e.g., State) is preempted by a superior source.
Preemption refers to the displacement of an inferior source of law by a superior
source. It thus involves the extinction of a power in the inferior source.
For example ordinarily, a state has the power to regulate businesses; however,
when it comes to broadcasting, that power to regulate has been replaced by
the Federal government (Communications Act). Ordinarily, businesses are subject
to state regulation, but within the scope of federal preemption, broadcasters
are one of the businesses that have an immunity from state regulation.
The Power of Precedent
In a society ruled by law, it is essential that the law is applied in the
same way to those in similar situations. This way people know when they are
breaking "the law." It also ensures that citizens are treated fairly,
in the sense of being subject to the same judgment.
When a court adjudicates a dispute and hands down a decision, the case is
said to constitute a precedent. The decision then becomes part of the common
law and may be followed in other cases. Lawyers usually refer to precedents
as "authorities".
But what happens when there are a number of different decision on a similar
legal problem? Which decision is a judge to follow? This is where the
doctrine of stare decisis steps in.
Stare Decisis is a Latin phrase
meaning "to stand on decided cases."
In layman's language it means that a precedent set by a higher court in a
jurisdiction is binding on all lower courts in the same jurisdiction in cases
involving the same material facts and in such cases only. The rule of stare
decisis prevails and past decisions are generally considered to be binding.
Two of the most important reasons for adhering to stare decisis are
the consistency and predictability that it provides. When trial court judges
are rendering a decision on an issue that has previously been decided in an
appeals court, they must decide the case in the same manner as the appeal
court justices.
Thus, a Texas Court of Appeals decision is binding on all Texas Circuit Courts
in the same district overseen by that Court of Appeals. Or, a decision by
the 11th U.S. Circuit Court of Appeals is binding on all federal district
courts in Georgia, Florida and Alabama. The exception to "same jurisdiction,"
of course, is that when the U.S. Supreme Court hands down a decision, it is
binding on both federal and state courts.
The doctrine of stare decisis is fundamental to the development of
our legal tradition because without the acceptance and application of this
doctrine, the evolution of any objective legal concepts would have been impossible.
What is Persuasive Authority?
Precedent is authoritative only for courts in the same jurisdiction or judicial
system. In other words, a Minnesota decision is not a precedent for the courts
of Colorado, but can be persuasive authority. Likewise, a Minnesota decision
would be precedent for Minnesota courts. A Colorado decision in Minnesota
would be viewed as persuasive authority.
Persuasive authority is a decision rendered by a court in another jurisdiction,
generally the decision of another state's appellate or supreme court. For
example: The Texas Supreme Court may look to the law established and followed
by other states' courts in decisions dealing with similar facts and issues.
In examining the decisions of other states, a court is often able to profit
from the expertise and experience of other states in determining similar issues.
Bear in mind that the key word is "persuasive." It is always within
the discretion of the Texas Supreme Court as to whether it will adopt or discard
the reasoning and decisions of other states. Typically, persuasive authority
is more persuasive when the "other" state is similar in population,
geography, area of the country, economics, etc. as the "borrowing"
state. For example, decisions in Oklahoma would be more persuasive in Texas
than, say, decisions from Virginia.
Federal Court System
The U.S. court system is hierarchical. In other words, there are more courts
at the bottom and one at the top. At the top is the Supreme Court of the United
States, the highest court in the land. On the next level stand the 13 United
States courts of appeals. On the next level are the United States district
courts, 94 in all, including the United States District Courts for the District
of Columbia and Puerto Rico and the district courts in Guam, the Virgin Islands
and the Northern Mariana Islands. In addition to the District Courts there
are a number of "courts of special jurisdiction"-- courts with jurisdiction
over specific areas such as military, taxes, etc.
Federal District Courts
The lowest level of federal courts, where suits are first brought and trials
are held, is called the District Court level. District Courts hear every type
of federal case, whether civil or criminal in nature. Each district may have
several judges, and covers part or all of a state. (Texas has four federal
district courts, in the eastern, northern, southern, and western districts.)
District Court judges are often assisted by so-called Magistrate Judges (aka
magistrates). Magistrates are not life-tenure judges; rather, they are auxiliary
officers (appointed under Article I of the Constitution) who handle certain
kinds of tasks delegated by District Judges. Magistrates may take "not
guilty" pleas in felony criminal arraignments; they also frequently handle
discovery disputes, misdemeanor trials, settlement negotiations, and hearings
to calculate damages. Their orders are generally appealable to the District
Judge from whom the matter was referred.
In addition to the District Courts, there are a few trial-level federal courts
with limited subject-matter jurisdiction. These include the Court of Claims
and the Court of International Trade. There is also the system of federal
Bankruptcy Courts.
Federal Appeals Courts
Next up the ladder are the Circuit Courts of Appeal. There are 13 such courts
(1st-11th Circuits, plus D.C. and the Federal Circuit.) With one exception,
these courts hear appeals from District Court decisions within their individual
geographical regions. For instance, the Fifth Circuit presides over the federal
Districts in Texas, Louisiana, and Mississippi. The United States Court of
Appeals for the Fifth Circuit usually sits in New Orleans.
(The one exception is the confusingly named Federal Circuit, a special court
for patent appeals, which reviews District Court decisions in this area from
all over the country. )
Unlike District Court Judges, who preside alone over their cases, Appeals
Courts sit in essentially random panels of three judges for each case. In
extremely rare circumstances, a majority of the judges in the Circuit may
sit "en banc" on a single appeal in order to clarify or review a
3-judge-panel decision.
Appeals Court decisions are binding on the district courts within that circuit.
This fosters uniformity of law within each circuit, although the circuits
themselves may disagree strongly on points of law.
The Supreme Court
The United States Supreme Court hears appeals from the 1) Courts of Appeal,
2) the highest courts of the respective states (only where a federal issue
is involved), or (very rarely) 3) a District Court decision. The Court also
occasionally acts as a trial court over certain constitutionally defined categories
of cases, such as lawsuits between states.
In its appellate capacity, the Court is not obliged to hear any given case.
Rather, the Justices vote on whether or not to "grant certiorari."
A vote of 4 justices in favor of hearing the case is sufficient to qualify
the case for a hearing. In the vast majority of cases, the Court declines
to hear the appeal ("denies cert."). A denial of certiorari has
no precedential effect, and is not to be taken as a reliable indicator of
the Court's views on the merit of the appeal. The Court decides only 100-150
cases each Term, out of the 6000 petitions for certiorari annually.
The Supreme Court serves as the final authority of law in the United States.
As a result, it is often called upon to resolve conflicts between the Circuits,
e.g., in interpreting federal statutes. Petitions for certiorari are more
likely to be granted when they involve such issues. When two or more Courts
of Appeal differ in how to interpret a law or handle an issue, the Supreme
Court will hear the case and resolve the difference. It is important that
federal laws or interpretations of the U.S. Constitution are uniform across
the country.
There are currently nine Justices. The highest ranking Justice is the Chief
Justice of the United States (*not* the "Chief Justice of the Supreme
Court"). The Chief Justice always has the power to select who will write
the opinion for the side on which the Chief Justice votes in a given case.
When the Chief Justice is in the majority, s/he may write the Opinion of the
Court himself/herself, or may assign it to another Justice on the same side.
The
Supreme Court – Deciding What to Decide
Click
Below for Virtual Tour of the Supreme Court
http://www.courttv.com/multimedia/supremecourt/
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Below for Detailed Information about the Court
http://encarta.msn.com/find/Concise.asp?ti=05944000
I. Deciding to Hear a Case
A. Docket Control
·
The Supreme Court is unique in the federal court system in that it can
control its own docket. In other
words, the Supreme Court does not automatically have to hear an appeal.
B. Writ of Certiorari (8,000)
·
Also known as a “writ” or a “cert petition,” this is the document
that you send to the court asking them to heat your case.
·
Every year about 8,000 cert petitions get filed with the Supreme Court.
· About 1/3 of these come from people appealing criminal convictions, and
over 80% of these are filed by people who cannot afford a lawyer.
· The other 2/3 deal with civil and constitutional cases.
· All these writs must come from people who have either had their cases
decided by a federal circuit court of appeals or a state supreme court.
C. The Discuss List (about 3,000)
·
The nine justices divide the pool of cert petitions equally and they and
their clerks go through their piles, picking out the “interesting” or
“noteworthy” ones for discussion by all nine justices.
About 3,000 out of the 8,000 make it to this stage.
· This is known as being put on the “Discuss List” which means that at
their weekly conference the justices will consider formally whether or not to
hear the appeal.
D. Rule of Four (80-100)
·
If at the discuss list meeting at least 4 of the 9 justices decide that
they want to hear the full appeal, then the case will be heard. The lawyers for both parties are notified, and a date for
oral arguments is scheduled. Only
about 80-100 cases every year make it beyond the rule of 4 and thus get on the
Supreme Court’s docket.
II. What Kinds of Cases Does the Supreme Court Hear?
A. The federal government is a party to the case.
·
Whenever the federal government is either the appellant or the
respondent, then the Supreme Court is likely to hear the case, especially is the
US is the one bringing the appeal (the Appellant).
This is because only the Supreme Court can ultimately decide a point of
federal law and action once and for all. About
30% of the cases they hear every year involve the federal government as a party.
· The Solicitor General is the
government’s lawyer that argues Supreme Court cases.
This is a lawyer’s dream job, and the SG gets seen and heard so much by
the Court that he is often called the “Tenth Justice.”
This is often a stepping stone to becoming a justice.
B. Conflicts among lower federal courts.
· Often, one federal appeals court will decide that a law or case means one
thing, while at the same time another federal appeals court in another part of
the country may decide that the very same law or case means something else
entirely. This situation makes the
application of federal law inconsistent across the whole country, which cannot
stand under the constitution, so only the Supreme Court can work out the
differences. This is one of the
most common types of cases they hear.
C. Civil rights and civil liberties cases.
·
Because of the political importance of these types of cases in the 20th
century, the Supreme Court sees itself as having a unique role in the American
political system in protecting and defining civil rights and liberties.
D. The ideological preferences of the justices.
· If the court is mostly liberal or conservative, then the number of cases
they hear in a given year may well increase, since the judges may have
ideological predisposition to want to make certain political statements using
the courts. When there is rough
ideological balance on the Court (as there is now), then these forces may tend
to cancel each other out, and the Court will hear comparatively few cases.
E. Polarizing cases of significant interest to public opinion.
·
The Court realize that historically elected officials are reluctant to
make clear decisions on highly controversial issues, since they will anger some
significant chunk of the public no matter what they decide to do.
The Court sometimes (and reluctantly) steps in and makes these decisions
that politicians refuse to make. This
was the case with the abortion issue in the 1970s and school desegregation in
the 1950s.
III. Arguing the Case
A. Written arguments
· Once a case is put on the court docket (and thus has made it past the
Rule of Four), then the lawyers for both sides are asked to submit written
arguments detailing their theories of their cases.
These briefs will include extensive references to past similar cases and
laws, since Supreme Court decisions depend on precedent.
B. Oral arguments
· On their scheduled day, the two lawyers are normally each given 30
minutes to argue their cases to the 9 justices.
This time includes interruptions by the justices.
· Sometimes on very important or complicated cases, the chief justice may
extend more time for oral arguments, as was the case with Brown,
where Chief Justice Warren gave each side 2 days.
IV. Deciding the Case
·
Approximately two days after hearing the oral arguments, the nine
justices meet behind closed doors and discuss the case.
Then a vote is usually taken.
· It only takes a simple majority (5 of 9) to decide a case.
The Chief Justice then decides who will write the majority
opinion, which is the judgment of the court and its reasoning.
This opinion carries the weight of law.
If the Chief Justice is not on the majority side, then the senior justice
in the majority decides who will write the opinion.
·
The people in the minority may also decide to write one or more dissenting
opinions, which are their written reasons not to support the majority
decision. These carry no force of law.
· Likewise someone who voted with the majority but does
not necessarily agree with their reasoning may write a concurring opinion. This
also carries no force in law.
Most state courts are designed in the same manner as the federal system:
a trial court, an intermediate appellate court, and a court of final appeal
(usually the "Supreme Court"). Some smaller states omit the intermediate
level. Texas has two high courts: Court of Criminal Appeals that hears
only criminal cases and the Supreme Court that hears civil appeals.
The next level of courts in Texas is the courts of appeal. There are
14 courts of appeals in Texas, each covering a geographic district. Each district
has a chief justice and two or more justices. These intermediate-level appellate
courts hear appeals from both district-level and county-level courts.
Under the courts of appeal are the district courts. There are both
civil and criminal district courts, which are considered the state trial courts
of general jurisdiction. Both civil and criminal district courts have original
jurisdiction in felony criminal matters, juvenile matters, civil actions over
$200, divorces, title actions, and contested probate matters. As courts of
original jurisdiction, the district-level courts are where trials are held.
In Texas, the constitution requires each county to have a county court presided
over by a county judge. These are called constitutional county courts.
In large counties, there are additional "county courts at law"--county
courts established by the legislature--to help with the congested docket of
the county court.
In addition, at the bottom of the rung, each county is required to have at
least one justice of the peace court. The most populous counties may
have as many as sixteen. These courts also serve as small claims courts. In
addition, the Legislature has created municipal courts in each incorporated
city within the State. Within the city limits, these courts have concurrent
criminal jurisdiction with the justice of the peace courts.
Search & Seizure -
Good Information to Know
Search Warrant
Search Warrant,
in criminal law, order of a court, usually of a magistrate, issued to an officer
of the law authorizing a search of the premises named in the warrant for stolen
articles, property possessed in violation of the law, or the instruments or
evidence of a crime. The warrant authorizes the officer to seize particularly
described items and to bring them before the court that issued the warrant. In
common law, search warrants were used mainly to discover stolen property; by
modern law, their use has been extended to a variety of items, including
intoxicating liquors, gambling implements, counterfeiters' tools, burglars'
tools, smuggled goods, obscene literature, narcotics, illegal firearms, and, in
general, any article the possession of which is a crime or which may be used in
evidence.
Under the 4th Amendment of the U.S. Constitution
a search warrant can be issued only on oath of a complainant showing probable
cause for its issuance. The warrant must specify
definitely the place in which the search is to be made and the property to be
seized. An officer who, in executing the warrant, does not comply with or
exceeds its terms is liable civilly for all acts not authorized by it; an action
to recover damages may be instituted against the officer for trespass or
assault, or both. In addition, items seized under an illegally issued or
executed warrant may not be used in evidence in a criminal trial.
PROBABLE
CAUSE - A reasonable belief that a person has committed a crime. The
test the court of appeals employs to determine whether probable cause existed
for purposes of arrest is whether facts and circumstances within the officer's
knowledge are sufficient to warrant a prudent person to believe a suspect has
committed, is committing, or is about to commit a crime. U.S. v. Puerta, 982
F.2d 1297, 1300 (9th Cir. 1992). In terms of seizure of items, probable cause
merely requires that the facts available to the officer warrants a "man of
reasonable caution" to conclude that certain items may be contraband or
stolen property or useful as evidence of a crime. U.S. v. Dunn, 946 F.2d 615,
619 (9th Cir. 1991), cert. Denied, 112 S. Ct. 401 (1992).
It is undisputed that the Fourth Amendment, applicable to the states through the
Fourteenth Amendment, prohibits an officer from making an arrest without
probable cause. McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984). Probable
cause exists when "the facts and circumstances within the arresting
officer's knowledge are sufficient to warrant a prudent person to believe that a
suspect has committed, is committing, or is about to commit a crime."
United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989), cert. denied, 489
U.S. 825 (1990) (citing United States v. Greene, 783 F.2d 1364, 1367 (9th Cir.
1986), cert. denied, 476 U.S. 1185 (1986)).
When there are grounds for suspicion that a person has committed a crime or
misdemeanor, and public justice and the good of the community require that the
matter should be examined, there is said to be a probable cause for, making a
charge against the accused, however malicious the intention of the accuser
may have been. And probable cause will be presumed till the contrary
appears.
In an action, then, for a malicious prosecution, the plaintiff is bound to show
total absence of probable cause, whether the original proceedings were civil or
criminal.
A. A search warrant may be
served by any peace officer but by no other person except in aid of an officer
engaging in such service.
B. An officer may break into a
building, premises, or vehicle or any part thereof, to execute the warrant when:
1. After notice of his authority
and purpose, he receives no response within a reasonable time.
2. After notice of his authority
and purpose, he is refused admittance.
C. A peace officer executing a
search warrant may seize any property discovered in the course of the execution
of such warrant if he has reasonable cause to believe that such item is subject
to seizure under section 13-3912, even if such property is not enumerated in the
warrant.
D. A peace officer executing a
search warrant may make or cause to be made photographs, measurements,
impressions, or scientific tests.
E. A peace officer executing a
search warrant directing a search of premises or a vehicle may search any person
therein if:
1. It is reasonably necessary to
protect himself or others from the use of any weapon which may be concealed upon
the person, or
2. It reasonably appears that
property or items enumerated in the search warrant may be concealed upon the
person.
WHAT IS AN ARREST?
Despite
all the TV shows in which the police always say "you are under
arrest", for purposes of a defendant's rights under the laws of the United
States, an arrest may occur long before those words are uttered. The courts have
concluded that an arrest occurs when a person reasonably believes he is not free
to leave due to the actions of law enforcement officers.
WHAT HAPPENS WHEN THERE IS AN ARREST?
Once
an arrest has occurred, and before asking you any questions (other than your
name and address), law enforcement officers must provide your "Miranda
warning". They go something like this:
"You
have the right to remain silent. Anything you say may be used against you in a
court of law. You have the right to an attorney. If you can not afford an
attorney, one will be provided for you."
WHAT IS A SEARCH OR SEIZURE?
The
Fourth Amendment to the federal Constitution gives people a right to be secure
in their homes from unreasonable government searches. The question of what is
unreasonable is the subject of many books and ongoing argument. However, it is
clear that the police cannot search a person’s home without a warrant .
A
warrant is a piece of paper signed by a judge that describes the place to be
searched and the people or things that can be seized. A judge makes a decision
to sign a warrant after hearing from someone, usually a police officer,
sufficient reasons why the warrant should be issued. The judge must be convinced
that there is probable cause to believe that the warrant should be issued. There
are many exceptions to this general rule.
The
rules surrounding searches and seizure may also apply to cars, offices, and
individuals walking down a street. However, once a person is not in their home,
the expectation of privacy is diminished and police are permitted to do more
things; that is, the rules protecting the individual are relaxed. There are
numerous exceptions to the general rule protecting people from unreasonable
searches when a person is not in their home.
WHAT IF THE SEARCH AND SEIZURE IS NOT LEGAL?
In
many circumstances, but not all, the evidence obtained, and the evidence later
gathered as a result ("fruits of the poisonous tree") may not be
admissible in court against you.
However, even where evidence may have been illegally seized,
there is no guarantee that the judge will suppress it as there are many
exceptions to this rule as well. For example, if the police can show that they
acted in good faith when they violated your rights, the judge may excuse their
conduct and allow the evidence to stay in and be used against you.
CAN THE POLICE GET A WARRANT FOR ME JUST BECAUSE SOMEONE ELSE TOLD
THEM I WAS DOING SOMETHING ILLEGAL?
Yes. These people
are called confidential informants, tipsters and/or snitches. There are many
rules surrounding the " tip" from another person. Again, rules vary
from state to state and change over time but the general rule that assists most
judges is how reliable or honest an informant may be.
The
informant’s reliability or credibility is determined by many things; the same
criteria you may use in your own life to decide if someone is believable or not.
For example, has this person given information before that was relied upon? Has
this person given other information about the present crime that has turned out
to be true?
CAN THE POLICE EVER SEARCH ME WITHOUT A WARRANT?
Yes. There are
numerous circumstances under which a search may lawfully be made without a
warrant. Some general areas of exception where a search can be made without a
warrant are:
if the safety of the police officer is
involved,
whether the police are in hot pursuit of
a criminal,
when they see illegal evidence in plain
view,
if they are doing temporary questioning,
if a person consents to being searched,
and/or
if they have made a lawful arrest
CAN THE POLICE JUST STOP ME ON THE STREET AND SEARCH ME FOR NO
REASON?
No. The general
understanding is that a police officer only has the right to stop people
suspected of being involved in criminal activity. This area of police conduct is
often found under the heading of stop and frisk rules. Basically, the
"stop" must be justified by specific facts (referred to as "articulable"
facts) combined with rational inferences from those facts. What this means is
having long hair may not be a good enough reason to be "stopped", but
walking back and forth in front of a bank with a large, bulky item under your
coat may be a good enough reason for a police officer to stop and detain you for
questioning.
Second,
assuming the "stop" is valid, a limited search for weapons is
justified if the officer reasonably feels in danger. Basically, this means a
"pat down".
Third,
any search may only be confined to discover objects capable of being used as
weapons. For example, if the police officer goes into your wallet looking for a
weapon, this may not be the proper place for the officer to look for weapons. If
the officer finds illegal drugs, then you may have a shot at winning a motion to
suppress, if you are charged with possession of those drugs.
DO THEY NEED A WARRANT TO ARREST ME?
No. An arrest by a
police officer without a warrant is proper if the officer has reasonable grounds
to believe that you have committed a crime.
CAN THEY COME GET ME IN MY HOUSE?
The
police cannot come into your home, without your consent and without a warrant to
arrest you unless there are "exigent" circumstances. There is no clear
rule defining what an "exigent" circumstance is. But, there are
certain factors that judges will take into consideration in determining whether
exigent circumstances exist. Some of those are:
1.
the gravity of the offense (murder or
disorderly conduct),
2.
the existence of probable cause,
3.
the likelihood of an escape if the
officer does not act quickly, and
4.
whether the officer’s entrance was
peaceable.
CAN THEY ARREST ME WITHOUT A WARRANT IF I AM AT A FRIEND’S HOUSE?
Sometimes. A
suspect may still be entitled to call a place "home" without owning or
renting the house. However, a suspect who does have his own home and stays
temporarily as a guest at the home of another may not necessarily claim the
host’s home as his own. Remember, the overriding idea is where do people have
a reasonable expectation of privacy? One criteria may be -- where do you
keep your toothbrush?
CAN MY GIRLFRIEND GIVE CONSENT TO SEARCH OF MY HOUSE?
Generally, no. The
test would be whether the person giving the consent to the police has an equal
right to use the premises. Whether or not someone has an equal right may be
inferred from the circumstances. For example, a wife may have an equal right to
use anything in the home; therefore, she may have the right to give consent to a
search of her husband’s closet.
On
the other hand, a paramour may not have equal access in that she may not have a
key to the home. Yet, if the paramour is living with the suspect, she may have
equal use of the house.
The
question of who can consent gets stickier when less familial relationships are
involved. Can a hotel clerk consent to a search of a hotel guest’s room? The
answer at one time was no, but now differs from state to state.
Whether or not the consent is given by the
suspect or a third party , the consent must be voluntary. This means that the
person’s consent cannot be made under duress or coercion. An example of duress
might be that a person was not advised that he has the right to refuse to
consent. An example of coercion is where an officer threatens or scares a person
into consenting to a search.
CAN A POLICE OFFICER SEARCH MY CAR WHEN I AM STOPPED FOR SPEEDING?
Generally, no.
However, due to the mobility of cars, time does not permit a search warrant to
be obtained. As a result, vigilant police are motivated to search suspicious
automobiles. However, the police officer must have probable cause to believe
that contraband is concealed somewhere.
In
essence, merely being stopped for speeding should not allow the officer to
search your car; however, if the officer saw you throw an empty beer can out the
window, that may be sufficient probable cause to search your car. Or, if the
officer smells marijuana as he approaches the car, he may have an articulable
suspicion to search.
It
is unreasonable to make a search of an automobile when the arrest is for a minor
traffic violation (like speeding), as a subterfuge for a search for evidence of
a serious crime. Yet, the many automobile exceptions are based on the lower
expectation to the right of privacy in a car versus a home and the fact that
cars are mobile and evidence can be more readily disposed.
CAN A POLICE OFFICER SEARCH ME IF I AM A PASSENGER IN A CAR THAT HAS
BEEN STOPPED FOR SPEEDING?
Generally, no. The
rules surrounding the search of passengers in a car stopped for a moving
violation are similar to the rules surrounding the driver. That is, if the
officer has an articulable suspicion that the passenger may be involved in
criminal activity, the passenger may be searched. For example, if when
approaching the car, the officer notices the passenger bend over and hide
something under the seat and the car smells like marijuana when the officer
approaches, the passenger may be searched.
Whether or not the passenger (or driver)
have actually done anything to create an articulable suspicion that a crime has
been committed is usually a hotly contested issue.
WHAT IS AN INTERROGATION?
An
interrogation is where the police ask questions with the purpose of getting
information about a crime from a suspect or a witness. If a person is “in
custody”, then the police must give Miranda warnings; i.e., “read you your
rights” before they can interrogate. The point of reading people their rights
is to make sure any statements/confessions (answers to the police questions) are
voluntary. In other words, the person in custody is answering police questions
because he wants to, not because he is being threatened, coerced or beaten up.
However, the question of when a person is “in custody” is not always clear.
“In custody” does not always mean “under arrest”. Another way to think
about whether a person is in custody is whether their movement /freedom is
restricted in any way. The main point to remember about interrogations is that
you never have to answer the police officers’ questions, no matter what they
say or how they try to convince you it will help you to cooperate.
CAN I SUE THE COP FOR FALSE ARREST?
Sometimes. A false
arrest consists of unlawful restraint of a person’s liberty without proper
legal authority. The key words here are “without proper legal authority”.
The burden is on you, the person complaining they have been falsely arrested, to
persuade a court or jury that the officer acted without legal authority. This
can be difficult to prove. The good news is that if you can show the officer was
malicious you may be entitled to more money or what is referred to as
“punitive” damages. A common example of a false arrest situation is where an
officer may arrest a black kid suspected of shoplifting, with no real suspicion
that the kid did anything wrong, just because he may have been the only black
kid in the store.
The
frustration for people who want to sue for false arrest is that the lawsuit is
in another court (civil), a different judge, usually a different lawyer, there
are different rules for what is happening in the criminal case, and the case can
take longer to resolve.
IF THE COPS HAVE A WARRANT TO SEARCH MY HOUSE, CAN THEY LOOK
ANYWHERE?
No, not necessarily. Read the warrant carefully to see where the judge (the person who signed
the warrant) is permitting the police to search and what they are permitted to
seek. For example, if the warrant says the police are permitted to search your
home for anti-assault weapons, they cannot open your ring box in the back of
your sock drawer. The phrase used to explain this is: the police cannot look for
an elephant in a matchbox. This is the general rule. However, most search
warrants are so broadly written, that the police can usually get away with
looking just about anywhere. The best thing to do when served with a search
warrant is to sit there, don’t talk to the police while they go through your
things, and call a lawyer when they leave.
CAN THE COPS BREAK DOWN MY DOOR TO ENTER MY HOME?
Yes and no. This
area is called the “Knock and
Announce” rules. The general rule is that the police officers must
announce their authority and purpose in executing a search warrant. Implied in
this general rule is that a suspect should be given a reasonable amount of time
to come to the door before the police barge in. This purpose of this rule is to
allow people an opportunity to respond so that violence can be averted and
privacy protected.
On the other hand, the mere failure of the police to announce
their purpose does not necessarily violate the Constitution; although, it may be
a factor later on as to whether the search was reasonable. Furthermore, the
courts have excused the knock and announce rule in drug raids where the officers
know the suspect may have large dogs, a security system or a method of disposing
drugs down a toilet. These examples may be considered “exigent
circumstances”, relaxing the rule to knock and announce.
IF THE POLICE DON’T READ ME MY RIGHTS, CAN MY CASE BE DISMISSED?
No, not necessarily. We have all heard the "rights" being read to many suspects on
television and in the movies, and this has caused some confusion. The police
officer does not have to read anybody their "rights" unless that
officer wants to get a statement or confession from a suspect. If the officer
does not want to record what you have to say and use it against you, he does not
have to read you your rights.
However, if the
officer wants to ask you some questions other than your name and address, he
must advise you that you don’t have to answer his questions, that if you do,
anything you say c an be used
against you and that you have a right to a lawyer before you answer any
questions. It is amazing how many people will answer the officer’s questions
in some vein attempt to cooperate, which gives their defense attorney headaches
trying to defend the case later on.
IF I AM EVER ARRESTED, WHAT SHOULD I NOT DO?
If
you are ever arrested, it is our general recommendation to politely but firmly
say, "I want to speak to an attorney. I do
not want to answer any questions until I speak to an attorney." Repeat
this to everyone who asks you any questions.
The
police may say, "You'll feel better if you tell me about it"? While
you might feel better for a moment, after several years in prison you won't
think it was such a good idea to "get it off your chest".
TEN
THINGS NOT TO DO IF ARRESTED
No
one plans to be arrested, but it might help to think just once about what you
will do and not do if you ever hear the phrase “Put your hands behind you.”
The simplest “to do” rule is to do what you are told. Simple, but somehow it
often escapes someone who is either scared or intoxicated. More important to
guarding your rights and interests are ten things you SHOULD NOT do:
1.
Don’t try to convince the officer of your innocence. It’s useless. He or she
only needs “probable cause” to
believe you have committed a crime in order to arrest you. He does not decide
your guilt and he actually doesn’t care if you are innocent or not. It is the
job of the judge or jury to free you if he is wrong. If you feel that urge to
convince him he’s made a mistake, remember the overwhelming probability that
instead you will say at least one thing that will hurt your case, perhaps even
fatally. It is smarter to save your defense for your lawyer.
2.
Don’t run. It’s highly unlikely a suspect could outrun ten radio cars
converging on a block in mere seconds. I saw a case where a passenger being
driven home by a drunk friend bolted and ran. Why? It was the driver they
wanted, and she needlessly risked injury in a forceful arrest. Even worse, the
police might have suspected she ran because she had a gun, perhaps making them
too quick to draw their own firearms. Most police will just arrest a runner, but
there are some who will be mad they had to work so hard and injure the suspect
unnecessarily.
3.
Keep quiet. The hardest cases to
defend are those where the suspect got very talkative. Incredibly, many will
start babbling without the police having asked a single question. One example
reference this problem was the armed robbery suspect who blurted to police:
“How could the guy identify me? The robbers were wearing masks.” To which
the police smiled and responded, “Oh? Were they?” Judges and juries will
discount or ignore what a suspect says that helps him, but give great weight to
anything that seems to hurt him. Many attorneys could count on one hand the
number of times a suspect was released because of what he told the police after
they arrested him. Remember it's okay for the
police to lie to you!
4.
Don’t give permission to search anywhere. If they ask, it probably means they
don’t believe they have the right to search and need your consent. If you are
ordered to hand over your keys, state loudly “You do NOT have my permission to
search.” If bystanders hear you, whatever they find may be excluded from
evidence later. This is also a good reason not to talk, even if it seems all is
lost when they find something incriminating.
5.
If the police are searching your car or home, don’t look at the places you
wish they wouldn’t search. Don’t react to the search at all, and especially
not to questions like “Who does this belong to?”
6.
Don’t resist arrest. Above all, do not push the police or try to swat their
hands away. That would be assaulting an officer and any slight injury to them
will turn your minor misdemeanor arrest into a felony. A petty shoplifter can
wind up going to state prison that way. Resisting arrest (such as pulling away)
is merely a misdemeanor and often the police do not even charge that offense.
Obviously, striking an officer can result in serious injury to you as well.
7.
Try to resist the temptation to mouth off at the police, even if you have been
wrongly arrested. Police have a lot of discretion in what charges are brought.
They can change a misdemeanor to a felony, add charges, or even take the trouble
to talk directly to the prosecutor and urge him to go hard on you. On the other
hand, I have seen a client who was friendly to the police and talked sports and
such on the way to the station. They gave him a break. Notice he did not talk
about his case, however.
8.
Do not believe what the police tell you in
order to get you to talk. The law permits them to lie to a suspect in order to
get him to make admissions. For example, they will separate two
friends who have been arrested and tell the first one that the second one
squealed on him. The first one then squeals on the second, though in truth the
second one never said anything. An even more common example is telling a suspect
that if he talks to the police, “it will go easier”. Well, that’s sort of
true. It will be much easier for the police to prove their case. I can’t
remember too many cases where the prosecutor gave the defendant an easier deal
because he waived his right to silence and confessed.
9.
If at home, do not invite the police inside, nor should you “step outside”.
If the police believe you have committed a felony, they usually need an arrest
warrant to go into your home to arrest you. If they ask you to “step
outside”, you will have solved that problem for them. The correct responses
are: “I am comfortable talking right here.”, “No, you may not come in.”,
or “Do you have a warrant to enter or to arrest me in my home?” I am not
suggesting that you run. In fact, that is the best way to ensure the harshest
punishment later on. But you may not find it so convenient to be arrested Friday
night when all the courts and law offices are closed. With an attorney, you can
perhaps surrender after bail arrangements are made and spend NO time in custody
while your case is pending.
10.
If you are arrested outside your home, do not accept any offers to let you go
inside to get dressed, change, get a jacket, call your wife, or any other
reason. The police will of course escort you inside and then search everywhere
they please, again without a warrant. Likewise decline offers to secure your car
safely.
That’s it: Ten simple rules that will leave as many of your
rights intact as possible, if you are arrested.
How
about a short test? You have a fight with your live-in girlfriend and the police
come and find you on the sidewalk two houses down from the apartment. The
girlfriend points you out and the police arrest you for assault. They tell you
they don’t intend to question you. They just want your name and address. Do
you answer? Well, you shouldn’t. Your address is the single most damaging
admission you could make. If you admit living with her, you have just converted
a misdemeanor assault into a felony punishable by state prison. When you are
arrested it is their game, and you don’t know the rules. It is best to be
silent and let the attorney handle it later. The bottom line is that if the
police have enough evidence to arrest, they will. If they don’t have that
evidence, you could easily provide it by talking.
SUPPOSE THE POLICE MAKE ME AN OFFER?
If
you are arrested, the police may start to make you promises or offer you a deal,
by saying things such as "You're not the one we are after, but you'll be
the one in real trouble unless you tell us what happened now." Sometimes
they are being truthful, but sometimes they are not. Also, it is only the
prosecutor who can make a "deal".
It
is wise to say "Please talk about that with my attorney" and NOTHING
MORE. Your attorney is better at negotiating with the police than you
are, what s/he says can NOT be
used against YOU.
Further,
your attorney can turn meaningless "promises
by the police" into binding legal agreements with the prosecutor,
perhaps obtaining immunity for you.
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