Rolando V. del Carmen

Stop and frisk

“Stop and frisk” is a term in policing that is best understood if construed as two separate acts rather than one continuous act. A stop is justified if the police have “reasonable suspicion” (less than probable cause) that “criminal activity is afoot”: that is, an individual has committed, is committing, or is about to commit a crime. The police then ask questions to determine whether the stop is justified based on reasonable suspicion. If the stop is not substantiated, the suspect should be released.

Use of force

The use of force is often necessary in police work, particularly when making an arrest. Force used in policing is categorized into two types: deadly force and non-deadly force. Deadly force is force that is likely to produce death or serious bodily injury. All other kinds of force are non-deadly force.

Right to counsel related to policing

The right to counsel in criminal prosecutions is guaranteed by the Sixth Amendment, which states that “in all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” Although generally associated with trial, the right to counsel has been interpreted to apply to “every critical stage” of the criminal proceeding. Some encounters with the police are considered a critical stage of an investigation and therefore require the presence of a lawyer if the evidence obtained is to be admissible in court.

Lineups and other pretrial identification procedures

The police generally use three methods in witness identification of suspects: lineups, showups, and photographic identifications. In a lineup, a victim or a witness to a crime is shown several possible suspects at the police station for identification. In a showup, only one suspect is shown to the witness or victim. This usually takes place at the scene of the crime and immediately following the arrest of the suspect. In photographic identification, the police show photographs of possible suspects to the victim or witnesses.

Plain view and open fields searches

The plain view doctrine states that items within the sight of an officer who is legally in a place from which the view is made may be seized without a warrant as long as such items are immediately recognizable as subject to seizure. Items in plain view are not protected by the Fourth Amendment guarantee against unreasonable searches and seizures; thus, no warrant or probable cause is necessary for a valid seizure. There are, however, three requirements for the plain view doctrine to apply: 1. The item must be within the officers sight.

Arrest and other seizures of persons

The law of arrest and seizures of persons is of great importance to law enforcement officers. An illegal arrest or seizure of a person violates the constitutional rights of an individual and can lead to lawsuits against the police. Not all detentions constitute an arrest. An arrest is defined as the taking of a person into custody against his or her will for the purpose of criminal prosecution or interrogation ( Dunaway v. New York , 442 U.S. 200 [1979]). A seizure of a person occurs only when there is governmental termination of freedom of movement through means intentionally applied ( Brower v. County of Inyo , 486 U.S. 593 [1989]). Both of these will be addressed in this chapter.

Searches with consent

The general rule under the Fourth Amendment is that searches must be with a warrant for the search to be valid. An exception is searches with consent. This exception is important because it is used every day by the police in a variety of situations. The requests, “May I search your car?” or “Would you mind if I come in and search your apartment?” or “May I look around?” are routinely heard by the public from the police.

What constitutes interrogation for Miranda purposes

The Miranda warnings must be given whenever there is a “custodial interrogation.” Custodial means that the person is under arrest or is deprived of freedom in a significant way. Interrogation means that the suspect is asked questions by the police that tend to link the suspect to a crime.

Seizures of things

The Fourth Amendment provides that “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 person or things to be seized.” This provision governs the constitutionality of searches and seizures conducted by the police.

Chapter 9 – Vehicle stops and searches

The Fourth Amendment imposes two requirements for searches and seizures, in general, to be valid: a search warrant and probable cause. The rule is different, however, in vehicular stops and searches, because motor vehicles are mobile and can be driven away at any time, making obtaining a warrant impractical. This rule was laid out in 1925 in Carroll v. United States , 267 U.S. 132 (1925), in which the Supreme Court held that the search of an automobile without a warrant is valid as long as probable cause is present.