Continuing the police procedures for writers overview, I thought I'd talk about how cops differ from the bad guys, and a bit about some things related to making a case that will stick. Before I go any further, though, let me state that I am not a lawyer and what I say here is neither intended nor should be taken as legal advice. I am just stating some generalities that are intended to assist you in devising plot and characterization for your novels.
GOOD GUYS VS THE BAD GUYS.
First, you have to understand that cops and criminals approach problems differently. An agent of the government, be it police or any other investigating authority, cannot just trample all over the Constitution and go anywhere and do anything in order to obtain evidence. Criminals are criminals because they ignore the laws of the land. Cops cannot do that, even it if means that a criminal gets away. The idea being that the innocent majority are also not going to have their rights trampled by a police state. Even if you absolutely know someone is dirty (and believe me I've been there) without evidence you cannot bring charges, much less convict. And the thing is, if cops indulged in vigilantism, they'd be criminals too. And it's a slippery slope. (I don't really want a cop who makes his own law investigating me, do you?)
RULES OF EVIDENCE, OR HOW TO SCREW UP A CASE
No one likes it when the bad guys get away. It doesn't make cops happy when mistakes are made or when the evidence is not there to get an arrest. They hate it just as much as you do. They probably hate it more because they see it happen more, AND it's their hard work wasted if something wrecks their case. So do the crime scene techs and the crime lab techs and the coroner. They really do try and do their jobs properly so that their work isn't a Sysyphus-rolling-a-rock-uphill-to-inevitable-failure sort of existence.
The first rule of obtaining evidence is that you obtain it according to the rules laid down in the Constitution, federal, state and local laws-- and by case law, which sets precedents and allows for clearer (hah!) understanding of a given law's implications. Any evidence obtained must be properly handled, tracked, and safeguarded to prevent tampering or any possibility a claim of tampering can be made. The legal system has the burden of proof in our nation, and the evidence must be there to allow the jury to believe that the defendant is guilty of the charges laid before him.
The real world versus the television world. TV has a lot to answer for because of fictional shows planting faulty assumptions in the minds of the public. Illegally obtained evidence flying in the face of the Constitution because cops or lawyers finagle it by hair-splitting arguments into evidence (it's not that easy); short cuts with the chain of evidence that in the real world would get the stuff tossed out; even manufactured evidence brought in 'for a good cause' by officers with (presumably) good intentions and hearts of gold. Um hum. (Oh, and court? I don't care how exciting it looks on TV. It's not exciting. Most lawyers presenting an argument would put a hopped-up meth head to sleep. Srsly.)
So, instead of reliance on flawed television tropes to inform your stories, consider the realities of police work. There's a dichotomy between the ideal versus the gritty, dull, or unpleasant realities that make an investigator's work difficult and daunting. Insert that into your stories. Have the public become disgruntled (as they do in real life.) Have a victim's family blame a cop who had nothing to do with the crime just because she's the one taking the report and is handy. Have the survivors scream at the cop, "If you had been doing your jobs instead of hanging out at the donut shop, my Sam would still be alive!" Have the uncomfortable moments when the cop either does go after the bad guys and breaks the law to follow his conscience by going vigilante; or show the cop's agonizing decision when he turns in another cop who's breaking the law. There are plenty of opportunities to use polar viewpoints for tension, motivation or background.
LEGAL SEARCH AND SEIZURE
The Fourth Ammendment of the Constitution governs search and seizure. "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."
Constitutional protections are in place to protect the rights of individuals and to keep the government from becoming a police state. (If you recall, the Founding Fathers had issues with their draconian government and did not wish to live under another such.)
Border search authority. Because in the last post's comments someone believed people entering the United States essentially have zero rights-- which is an incorrect, but understandable, assumption-- I thought I'd list some information about that issue here, also.
In actuality, the border search exception affects only the Fourth Ammendment, and only in a limited manner. Authority for border searches exists in the US Code 19 C.F.R. 162.6, full text listed here. The generalities of the US Code (from Wiki) are:
"Searches conducted at the United States border or the equivalent of the border (such as an international airport) may be conducted without a warrant or probable cause subject to the "border search" exception. Most border searches may be conducted entirely at random, without any level of suspicion, pursuant to U.S. Customs and Border Protection plenary search authority. However, searches that intrude upon a traveler's personal dignity and privacy interests, such as strip and body cavity searches, must be supported by "reasonable suspicion." The U.S. Courts of Appeals for the Fourth and Ninth circuits have ruled that information on a traveler's electronic materials, including personal files on a laptop computer, may be searched at random, without suspicion.
Although border-searches are exempted from the Fourth Amendment warrant requirement, they are still subject to the amendment's reasonableness requirement. Whether a border search is reasonable depends on a judicial analysis that balances the intrusion into an individual’s legitimate privacy and dignity interests against the government’s legitimate interest in the subject of the search. In reviewing the reasonableness of border-searches under the Fourth Amendment, many courts have distinguished between "routine" and "nonroutine" searches. CBP may conduct "routine" searches without any level of suspicion, while "nonroutine" searches must be supported by "reasonable suspicion". Under this analysis, searches of a traveler's property, including luggage, briefcases, wallets, and other containers are "routine," while searches of a traveler's body, including strip, body cavity and involuntary x-ray searches, are considered "nonroutine."
Probable cause. Definition: "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." Reasonable belief is a separate thing from reasonable suspicion, which is different from some or mere suspicion.
What constitutes an arrest? A detention? A stop or seizure?
These terms also include your person and your liberty. An investigative stop is not an arrest...but it could become one right quick. There's a lot of gray area here that you might exploit in your story. I'd be careful of using these terms without careful research re the situation in which you plan on using them, as they can be difficult to clarify. Research specific cases for information.
Arrest is when a person is deprived of liberty by authority. Sometimes it can be the mere perception that this is the case. A more comprehensive definition is that "[a]n arrest occurs when police take a suspect into custody against his will. An arrest is differentiated from other forms of police detention by the fact that the suspect is being arrested for the specific purpose of criminal interrogation and eventual prosecution. Arrests generally require an arrest warrant, absent exigent circumstances. Certain forms of home arrest will nearly always require a warrant. Police cannot make a non-emergency arrest of an individual in his own home without a warrant. Likewise, even if police have a valid arrest warrant, they generally cannot enter a third party's home to execute that warrant unless they get a search warrant for the third party's home."
Arrests may also occur when law enforcement observes a crime taking place or probable cause has been established. Say officers arrive to investigate pursuant to a call to a bar fight. If the parties are identified by witnesses or are identifiable by the police (enough to establish probable cause) arrests may ensue.
Stop, seizure, or investigative detention. A so-called 'stop' or 'stop and frisk' (see below) is generally what's legally known as a seizure /investigative detention (where an reasonable individual would believe they were not free to leave.) Generally, an investigatory and short-term stop is performed by an authority in order to perform routine investigations. It is done in line with the legal authority of the officer performing the stop and (generally) performed with certain limitations/ authorities. For example, the typical traffic stop is a temporary seizure. Another instance is when an officer at the border port of entry stops (temporarily seizes) people to determine their admissability into the United States and/or examine the property they are bringing in with them.
Detention. Detention is the seizing or holding of a thing. Investigative detention is a higher level of seizure, one where you clearly cannot leave, are instructed not to leave, or are physically contained, such as by being handcuffed* or by being held in the police vehicle, or even transported to and held at the police station. Generally speaking, the time after the initial stop's nature changes and leading up to an arrest or release is a detention. [*Handcuffing does not necessarily equal an arrest. It can be performed to prevent people from endangering themselves or others. Or, as in cases where someone may be an armed and dangerous suspect, handcuffing is pretty much mandatory until it is determined whether or not the person is the wanted felon.]
Unlawful detention. Sometimes detention is more clearly defined by what it is not, e.g. unlawful detention. Unlawful detention "means keeping in custody unlawfully. Under criminal law it means keeping or confining a person in custody without any lawful reason." The civil definition relates to property, and I'm not going to address that here.
Miranda warning. What is this Miranda thing? The Miranda v Arizona decision itself was in 1966. Historically, the Supreme courts had upheld what was termed a 'fairness standard' as applied to an individual's rights when arrested, specifically right of due process. Miranda v Arizona was the first of several similar cases on the Supreme Court docket and thus the warning's name was attached to that case. The 5th Ammendment (right to remain silent) and 6th Ammendment (right to legal counsel) as well as right to due process (5th and 14th Ammendments) are involved in this decision. NOTEWORTHY: A recent Supreme Court decision (June 2010) defines the requirements of the Miranda warning in regards to admissability: "courts need not suppress statements made by defendants who received such warnings, did not expressly waive their rights and spoke only after remaining silent through hours of interrogation." Previous decisions insisted upon a signed waiver of the individual's rights that stated they were aware of the right to remain silent and were speaking knowingly and with free will.
Miranda warning statement. The text varies. See this wikipedia article for a run down on varying texts and requirements by state. But, generically: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?"
TYPES OF SEARCHES & RELATED TERMS
Warrants. Definition: "An official order authorizing a specific act, such as an arrest or the search of someone's home. A written order directing the arrest of a party. A search warrant orders that a specific location be searched for items, which if found, can be used in court as evidence."
I should clarify that a bit more, too. The warrant's language defining the area of the search is important. If you are looking for something large like stolen electronic equipment (computers, TVs, etc.) and the cop finds a bag of LSD in the closed silverware drawer, is it admissable? Answer is NO. Because that area was not covered in the search warrant. But if the bag of drugs was in plain view on the counter, it's admissable. Now, if something occurs to change the nature of the search-- say a person in the house dives for the silverware drawer-- an officer can reasonably believe a weapon or contraband is in that location, and whatever is in that drawer is legally obtained.
Warrantless searches. An officer can perform a warrantless search under limited circumstances. First, an individual is always subject to warrantless search pursuant to an arrest. That said, generally speaking, a cop needs either probable cause, an exigent circumstance, permission by authorized authority, or a warrant to search property, the trunk of a car, or your person. Much of this stuff is well-plowed ground with numerous Supreme Court decisions and case law interpretations behind them. The main thing is to know the exigent circumstances that generally allow an officer to perform a warrantless search that is not pursuant to an arrest.
Terry, or Stop And Frisk search: "In lay terms, if an officer observes someone acting weird, has a reasonable suspicion of any type of criminal activity, and can verify certain facts, then he or she is lawfully able to stop and frisk the person for weapons. When police stop a "suspect", although they may not be arresting him or her, they are allowed to detain them for a brief time, question them, and "pat them down" for weapons, without probable cause. Terry v. Ohio was the case that allowed police to pat down for weapons and later cases expanded it to drugs as well (www.xreferplus.com)."
Exigent circumstances. Certain well-known exceptions that are always golden reasons to perform warrantless searches: Emergency situations (e.g. belief an individual is injured, e.g. in case of a fire entering a building without a warrant, etc.) Belief a felony is being committed or pursuant to hot pursuit of a criminal, and the consent search, where the officer believes the person providing the consent has the right to give consent to the search.
Consent search. "In United States v. Matlock (94 S. Ct. ) the court concluded that a third party who had common authority over a home could validly consent to a search without the other joint occupant’s consent. In Matlock, the court stated that “the consent of one who possesses common authority over premises is valid as against the absent, nonconsenting person with whom that authority is shared. ”
Hot pursuit. "Hot pursuit is pursuit by a law enforcement officer (with or without a warrant) for the purpose of preventing the escape or effecting the arrest of any person who is suspected of committing, or having committed, a misdemeanor or felony. Hot pursuit implies pursuit without unreasonable delay, but need not be immediate pursuit. It can also refer to chasing a suspect or escaped felon into a neighboring jurisdiction in an emergency, without time to alert law enforcement people in that area."
Emergency conditions. 'Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.' United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.), cert. denied, 469 U.S. 824 (1984)."
Officer or public safety. An officer can frisk an individual if they believe there is an illegal weapon present. See Terry Stop under warrantless searches (above.)
Search pursuant to an arrest. Ensuring that the individual in custody does not have any weapons or contraband on their person. Generally there's a search following the individual being cuffed, a more formal pat down before being transported, another search at the jail/holding facility, searches before being moved from location to location including within the jail/holding facility. And, when incarcerated, expect a prisoner to get searched any time the guards feel the need. This includes before and after entering restricted areas, before and after visits, and other times that are deemed appropriate by the authorities in order to assure that contraband doesn't get in or out. (You essentially lose a lot of rights by being legally imprisoned...even if you haven't yet been convicted. These authorities fall under public safety exceptions, I believe.)
Prisoner transport. Any time a person in custody changes 'keepers' he or she should be frisked. The line of thinking is that that last guy may not have searched the guy very well and may have missed something. (Even a thorough search can result in missing something. I won't go into details, because I don't want to aid anyone in hiding weaponry from the cops.) At any rate, after a transport is completed, the police vehicle is also searched in case missed evidence/weapons are placed there. That way, the things they find can be placed into evidence. (Some of the new cop cars now have one-piece back seats so that evidence or weapons cannot be hidden in the vehicle.)
VEHICLE SEARCHES
Carol doctrine. Warrantless search of a vehicle. For warrantless searches, generally the standards applied would be the same standards as if the officer were applying for a warrant. Excellent article here.
Because vehicle searches offer up such a large number of possibilities, I'm going to quote from a very informative article from PoliceLink:
- Automobile Search Exception--first established in Carroll v. U.S. (1925) as part of Prohibition-era laws allowing roadblocks and checkpoints. Later, amended to allow free and unfettered passage on public highways. Police can generally open luggage and parcels in the passenger compartment; a search of the trunk requires special justification. However, Chambers v. Moroney (1970) ruled that an automobile search need not be made immediately. All that is necessary in a probable cause stop is to confiscate the parked vehicle after the driver has been arrested, take it to headquarters, and do a complete inventory on its contents. Any and all evidence found in the vehicle can be legally seized. Inventory and search are technically different, but in practice, both are done at the same time. (See Moving Vehicle/Probable Cause Doctrine and Inventory Search Exception). [Ed.: NOTE that a police dog alert constitutes probable cause to search for contraband.]
- Border Search Exception--the basic idea here is that special attention should be paid to a nation’s borders and certain transportation routes. For this reason, immigration points and international airports can search and seize (for as long as 16 hours) on the basis of reasonable suspicion rather than probable cause. Also allowed is "drug courier profiling" of suspicious persons that may be transporting contraband along a commonly used Interstate or airport for drug trafficking. Profiling stops have also been authorized for people who appear to be soliciting prostitutes. [Ed.: NOTE that this does not specify that 1) all vehicles and persons crossing international borders in either direction are subject to a warrantless border search; and 2) only certain officers have the authority to perform border searches, and that this authority is conveyed via particular means (not deputization). Additionally, there are legal issues regarding border searches that are not directly on the border, vis Border Patrol checkpoints, airports, etc.]
- Chimel Rule--briefly, a warrantless search is allowed if incidental (simultaneous) to a lawful arrest, i.e., serving an arrest warrant without a search warrant. Only the area [of the vehicle] under a suspect’s immediate control can be searched, and this can be for evidence that has nothing to do with the cause for arrest. Also a "protective sweep search" is appropriate for dwelling areas, such as closets or closed doors for hidden attackers. Comes from Chimel v. California (1969), a case where police literally ransacked a house. Also applies to hot pursuit or chase situations where suspect can be taken back to show spot where weapon or drugs were discarded, but this more often involves a public safety exception to the Miranda rule. Strip searches (down to the underwear) can ONLY be done when the prisoner is in a secure facility. Vehicles used to transport prisoners MUST be searched prior and after transport in order to prove something was discarded during transport. Cavity searches can be done at booking, but are best left to medical personnel, but some departments allow officers to do them.
- Gant rules. An important new bit of case law comes from Arizona v Gant, and this changes the reasons an officer can search a vehicle. Specifically, "the US Supreme Court clarified its previous rulings and narrowed the authority of the police to conduct searches incident to arrest. Under current law, police may only search a vehicle without a warrant following an arrest if: The arrestee is unsecured and within reaching distance of the car at the time of the search; or The police have a reasonable belief that they will find evidence relevant to the crime the person has been arrested for in the vehicle. This change in the law limits the ability of the police to use certain offenses, like driving on a suspended license, as a means to search privately owned vehicles for evidence of more serious crimes. Other charges, like driving under the influence of drugs or alcohol, still may allow the police to conduct vehicle searches since it is reasonable to believe the police may find evidence of intoxicating substances in the car."
- Inventory. If a car is seized pursuant to abandonment or arrest, an inventory is conducted. Technically this is not a search; however, for the purposes of law enforcement, anything that can be used as evidence is legally obtained via such a an inventory. It's the same as a warrantless search, but hiding behind a different purpose and name...e.g. a technicality.
HOW NOT TO DO IT.
If you want your characters to do it all wrong, here are a few tips:
Just kick down the door! This is counterproductive. A police officer is not free to do whatever they want. For one thing, you can screw up your case by illegally acquiring evidence.
Entrapment. Definition: "A person is 'entrapped' when he is induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit; and the law as a matter of policy forbids conviction in such a case." The police cannot set someone up with an opportunity for crime and then bust them for it; but there is wiggle room here in that a sting operation, one that provides an opportunity for those who were already going to do the crime are enticed to do it. The general argument that differentiates a legal sting versus an entrapment operation is that the arrestees would have committed the crime anyhow or already have (as in the case of an attempt to fence stolen goods.).
Vigilantism or "The cops should have prevented it." This isn't about evidence collection per se, but about doing an end run around the law, about preventing crime by presuming guilt without due process. One of the criticisms you often hear against the police is that the police "didn't do anything to prevent" a crime. It's tragic and horrible and no one likes to see that something awful has occurred because no one had yet gotten the goods on an evil bastard and locked them away. But you need to know that cops can't just presume your or anyone's guilt.
It basically comes down to the benefit of the doubt issue, and everyone being treated the same under the law. The cops and the courts do not get to pick and choose which laws they enforce or when. This does put cops in the unenviable position of chasing after the criminals 9 times out of ten, as opposed to preventing crime. It's not ideal, but it's better than a police state, if you ask me!
Without following the rules, i.e. the law, law enforcement officers are criminals themselves. And your rights as delineated in our Constitution would be meaningless if police weren't required to uphold them when they are 'inconvenient.' It might not be perfect, but the current system is better than a police state.
Fruit of the poisonous tree. Extends the exclusionary rule to evidence obtained from illegal search and seizure.
Escobedo rule. Evidence obtained from an illegally obtained confession is inadmissible in court.
Exclusionary rule. Denies government the use of evidence obtained through illegal search and seizure.
Gideon rule. All felony defendants have the right to an attorney. (This is stated in the 6th Ammendment.)
OTHER ISSUES REGARDING EVIDENCE
The taint. Another issue that is seldom addressed is the taint of the past. If a cop was implicated yet later cleared of something like being in bed with the mob, the smell of that accusation can linger...even if it is entirely false. It's the same as declaring someone a pedophile. The rumor alone is enough to convict in the minds of many...because, even if cleared of the charges, there's always that thought, "Did he get away with it? Is the rumor true?" High-profile cases where media coverage blasts accusations like that make it infinitely worse, too. Look at Mark Furman, who was accused by the OJ defense of diddling or manufacturing evidence. True or false, I bet when you think of him you think of that accusation and wonder. Likewise, the taint of such accusations, true or not, can be attached to every subsequent case an officer presents to the DA. As we used to say in the military, not career enhancing.
USEFUL LINKS
Nothing beats a good understanding of the US Constitution, the Bill of Rights or the Constitutional Ammendments.
The 'Lectric Law Library has a vast lexicon of information on the web.
Excellent article describing warrantless searches, their legal authorities and general applications. Wikipedia has a lot of info on search and seizure, and there's another one here.
Excellent background article on Miranda rights warning.
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