Questionnaire: Crime Control/Procedures

Pages: 12 (3499 words)  ·  Bibliography Sources: 10  ·  Level: College Senior  ·  Topic: Criminal Justice  ·  Buy This Paper

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[. . .] There are at least three potential interpretations of the Fourth Amendment: 1) It applies only to full searches and arrest; not short of partial situations; 2) Even brief street detentions are technically arrests, especially pat down searches, and should be executed only if there is probable cause; and 3) Stop and searches are searches and seizures, but only minor ones so have a lesser standard of proof needed than full stops and searches -- there is more discretionary power for law enforcement. In Terry v. Ohio, the Court seems to favor #3 above, and in particular wishes to protect the safety of law enforcement but insists that stops and searches cannot be whimsical, but still need enough facts that a Judge or objective party would find reasonable (Samaha, pp. 88-9).

4. In general, there are three types of police encounters: 1) voluntary -- in which there is willing contact and no physical or mental coercion; 2) brief (defined as minutes), in which on-the-spot detentions are used to access information -- but still require reasonable suspicion; and 3) arrests (hours or days) in which the individual is transported to the Police or Law Enforcement office for detention. The Fourth Amendment applies to reasons 2 and 3; and yet can sometimes be subjective depending on the officer, individual, time, place and event involved (Samaha, p. 98).

5. Custodial arrests are defined as a law enforcement officer taking a person into custody and holding them for interrogation about criminal charges. An arrest, according to one author, is like a zone of continuum -- it can be a short detention in public lasting just a few minutes or a full arrest in which the suspect is "booked," and held in a more formal manner. The differences between Fourth Amendment Stops and full custodial arrests center on degree and seriousness, as well as time and location. The more serious the crime, the more burden of proof required; custodial arrests require the most amount of proof as well as a longer period of time and a higher predisposition towards guild (Samaha, pp. 170-1).

6. A full custodial arrest requires more burden of proof than a stop and search, and is characterized by more formal reading of rights, letting the individual know they are "under arrest" for a specific charge, the individual is photographed and fingerprinted, and interrogation or line-ups may be used. One may see the differences between the two also in degree -- the least intrusive on the continuum is a simple stop and search with informal questions, etc. -- the most intrusive a complete booking and arrest in which the individual is typically handcuffed and transported to a central legal institution at which time they are completely searched, their property inventoried and often held in a locked cell (Samaha, p. 141). There are a number of negative consequences to arrest: unreasonable force, false arrest and detention, public relations fall-out, lack of sufficient evidence for holding which ruins the future case, out of control law enforcement and overcrowding of jails based on divergent standards of arrest (Samaha, pp. 165-71).

7. When a law enforcement professional believes that an arrest is needed, there are two kinds of information they can rely on to satisfy what the Courts have indicated is reasonable: Direct information and hearsay. Direct information is firsthand data known to officers through their senses (what they saw, heard, tasted, felt or smelled). It does not automatically make the case for arrest, but does contribute to the overall view of a pattern or a suspicion that needs to be taken seriously. For example, if an officer sees a suspect fleeing, resisting officers, hiding, giving contrary information, attempting to destroy evidence; or there is proof of matching fingerprints, DNA or other fluids, then the information is considered direct. Hearsay rules do not allow for the guilt of innocence of a person, but if the sources are reliable and truthful, or if a pattern can be found, then usually the Court finds that it is reasonable for arrest. Of course, not all hearsay is identical -- eyewitnesses can be reliable or unreliable based on proximity, their condition, time of day, etc.; professional informants may also have degrees of reliability as well depending on the perception of reasons for their testimony. Again, there is considerable latitude the Courts have given; largely because arrest and conviction are seen as two extremes of using the law to prevent crime (Samaha, pp. 142-3).

Searches of Evidence

1. In 1949, Supreme Court Justice Jackson noted that there were a number of problems with the search and seizure laws as interpreted by law enforcement. Very few records are kept regarding searches that turn up nothing and in which no arrest is made, making it very difficult to find the actual ratio of legitimate searches to those less than legitimate. Jackson noted that he was "convinced that there are many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear" (Samaha, p. 199). He used the term "second class rights" to mean that the High Court tended to look at unreasonable searches and seizures not as important as many other Constitutionally mandated rights, but only as second class rights that were a necessary part of controlling crime. To Jackson, this was incorrect, and the use of indiscriminate search and seizure, particularly during the time period after World War II, resembled a society in which citizens were constantly afraid of the law and being deprived of the notion of being innocent unless there was reason for detention and arrest (Samaha, p. 178).

2. The term "incident to" or "contemporaneous with arrest" indicated the time before, during and after arrest. Searches that are incident to arrest are reasonable because they are reasonable toward probable cause -- the collection of evidence, of material and of issues germane to the purported crime; that there may be a potential danger to the police officer during incident to arrest in which evidentiary materials need to be preserved, and that it is impossible for the Courts to review every single situation and must therefore allow law enforcement some leeway when making arrest decisions (Samaha, pp. 194-5).

3. Consent searches are those made by law enforcement in which they have the consent of the individual whose property or person is being searched. This is a warrantless search because it has the permission of the individual, and no warrant or probable cause is required with this type of consent. Research shows that in many cases, consent searches are not as consensual as law enforcement would have us believe, but are psychologically pressured (e.g. The person knew they did not have to consent but the idea of a law enforcement officer was intimidating). In addition, research also found that many people were afraid of what might happen to them if they refused to allow a search -- potentially casting more suspicion upon themselves. Finally, other studies show that encounters with law enforcement have strong and considerable lasting effect upon the population, making it difficult to prove a Constitutional violation because of a fearful population group (Samaha, p. 207).

4. Emergency searches are also known as exigent circumstances and are based on the idea that there are special circumstances in which it is dangerous or impractical for an officer to obtain a search warrant in a reasonable period of time. Three of these exigent circumstances are: 1) if officers believe important evidence is being destroyed they can search without warrant, particularly to preserve that evidence; 2) If officers are trying to apprehend a suspect who is fleeing, especially if they have probable cause to arrest, they may follow said suspect into their home or another place to prevent flight; and, 3) If there is a danger to the community in the sense that the suspect has committed a violent crime or may put the lives of others in danger (Petry, 2010).

5. Special needs searches have four common characteristics under the law: 1) They are directed not specifically at suspects but at individual in general; 2) There is a strong chance they may result in criminal prosecution or at least detention; 3) They are of the nature that they do not require warrants or probable cause; and, 4) There is a balance that must occur between protecting Constitutional rights and the safety of society or special governmental needs. For example, if an inventory search (making lists of personal property) is requested, a number of needs must be fulfilled to allow it to be reasonable and legal: 1) It must be objective and part of routine procedures; and, 2) Searches must balance the government's special needs against the invasion of privacy the search might cause. If the need outweighs the privacy (e.g. searching for bombs, etc.), then the search is considered to be reasonable (Samaha, p. 231).… [END OF PREVIEW]

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https://www.essaytown.com/subjects/paper/crime-control-procedures-term-play/5469626.