Chapter 7

Report
Chapter 7
Policing: Legal
Aspects
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
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Changing Legal Climate
• The U.S. Constitution, especially
the Bill of Rights, is designed to
protect citizens from abuses in
police power.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
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Changing Legal Climate: The Warren
Court (1953-1969)
• The U.S. Supreme Court in 1960s, under
the direction of Chief Justice Earl Warren:
• Accelerated the process of
guaranteeing individual rights in the
face of criminal prosecution.
• Bound police to strict procedural
requirements.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
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Changing Legal Climate: PostWarren Court
• In the decades since the Warren
Court, a more conservative Court
philosophy:
– “Reversed” some of the Warren-era
decisions.
– Created exceptions to some of the rules and
restraints.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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TABLE 7–1 Constitutional Amendments of Special Significance to the
American System of Justice
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Individual Rights
• Courts provide an arena for dispute
resolution between individuals and
between citizens and government
agencies.
• Courts also deal with issues involving
rights violations, which have become
the basis for dismissal of charges,
acquittal of defendants, or release of
convicted offenders upon appeal.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Due Process Requirements
• Most due process requirements relevant to
the police involve:
– Evidence and interrogation (search and
seizure)
– Arrest
– Interrogation
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Search and Seizure: The Fourth
Amendment
• “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.”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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The Exclusionary Rule
• Weeks v. U.S. (1914) established the
exclusionary rule.
• Illegally seized evidence cannot be used in a
trial.
• This rule acts as a control over police
behavior.
• The decision was only binding to federal
officers.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Fruits of the Poisonous Tree
Doctrine
• Silverthorne Lumber Co. v. U.S.
(1920)
• Because illegally seized evidence cannot be
used in a trial, neither can evidence that
derives from an illegal seizure.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Exclusionary Rule Applied to the
States
• Mapp v Ohio (1961)
– The 14th Amendment due process applies to
local police, not just federal officers
• Wolf v. Colorado (1949)
– Officers believed exclusionary did not apply
to state and local law enforcement
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Search Incident to Arrest
• U.S. v. Rabinowitz (1950)
• The Fourth Amendment protects
against unreasonable searches, but it
protects people, not places.
• A limited area search following arrest
may be acceptable.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Search Incident to Arrest
• Chimel v. U.S. (1969)
• Clarified the scope of a search incident to
an arrest.
– Officers may search:
• The arrested person
• The area under the arrested person’s
“immediate control”
• Officers can search for following reasons:
– To protect themselves
– To prevent destruction of evidence
– To keep defendant from escaping
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Fourth Amendment Protects
People
• Minnesota v. Olson (1990)
– Overnight guests residing in the home of another
• Minnesota v. Carter (1998)
– Expectation of privacy
• Georgia v. Randolph (2006)
– One consents but the other refuses
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Good Faith Exception to the
Exclusionary Rule
• U.S. v. Leon (1984)
• When law enforcement officers have acted in
good faith, the evidence they collect should
be admissible even if later it is found that the
warrant they used was invalid.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Good Faith Exception to the
Exclusionary Rule
• Illinois v. Rodriguez (1990)
• Good faith can be established if the police
reasonably believe they are performing their
job in accordance with the law.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Good Faith Exception to the
Exclusionary Rule
• Arizona v. Evans (1995)
• The computer errors exception to the
exclusionary rule.
• Police officers cannot be held
responsible for a clerical error.
• The exclusionary rule was intended to
deter police misconduct, not clerical
mistakes made by court employees.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
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Good Faith Exception to the
Exclusionary Rule
• Herring v. U. S. (2009)
• U. S. Supreme Court reinforced it’s ruling in
Evans
• When police mistakes are the result of
isolated negligence, the exclusionary rule
does not apply
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Plain View Doctrine
• Harris v. U.S. (1968)
• Objects falling in “plain view” of an officer,
who has the right to be in the position to
have the view, are subject to seizure and may
be introduced as evidence.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Plain View Doctrine
• U.S. v. Irizarry (1982)
• Arizona v. Hicks (1987)
• Restricted the plain view doctrine
• Officers cannot move objects to gain a view of
evidence otherwise hidden from view.
• Officers cannot move or dislodge objects to
create “plain view.”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Plain View Doctrine
• Horton v. California (1990)
• The U.S. Supreme Court held that even
though inadvertence is a characteristic of
most legitimate plain view seizures, it is not
a necessary condition.
• It is okay to seize evidence found when
such evidence is other than that listed in a
search warrant.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Emergency Searches
• Brigham City v. Stuart (2006)
• Police officers “may enter a home without a
warrant when they have an objectively
reasonable basis for believing than an
occupant is seriously injured or imminently
threatened with such an injury.”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Emergency Searches
of Property
•
Three threats provide justification
for emergency warrantless
searches (searching during
exigent circumstances).
– Clear dangers to life
– Clear dangers of escape
– Clear dangers of removal or
destruction of evidence
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Emergency Searches
• Warden v. Hayden (1967)
• “4th Amendment does not require police to
delay in the course of an investigation if to
do so would gravely endanger their lives or
the lives of others.”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Emergency Searches
• Maryland v. Buie (1990)
• Police can search locations in a house where a
potentially dangerous person could hide
while an arrest warrant is being served.
• Primarily meant to protect officers from
danger.
• Can apply when officers lack a warrant,
probable cause, or even reasonable
suspicion.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Emergency Searches
• Hudson v. Michigan (2006)
– Evidence was still admitted at trial even
though police did not follow knock-andannounce rule
– Interests violated by not announcing have
nothing to do with the seizure of evidence
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Anticipatory Warrants
• U.S. v. Grubbs (2006)
• The Court upheld the constitutionality of
anticipatory warrants—search warrants
issued on the basis of probable cause to
believe that evidence of a crime, while
not currently at the place described, will
likely be there when the warrant is
executed.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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“Free-to-Leave” Test
• U.S. v. Mendenhall (1980)
– U.S. Supreme Court said:
• “A person has been ‘seized’ within the
meaning of the Fourth Amendment only if in
view of all the circumstances surrounding the
incident, a reasonable person would have
believed that he was not free to leave.”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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“Free-to-Leave” Test
• Yarborough v. Alvarado (2004)
– Whether a person is actually free to leave
can only be determined by examining the
totality of the circumstances surrounding
the interrogation.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Felony Arrest
• Payton v. New York (1980)
– Unless granted consent or an
emergency, an arrest warrant is
necessary if entering a suspect’s home
– Reiterated in Kirk v. Louisiana (2002)
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Searches Incident to Arrest
• U. S. v. Robinson (1973)
– Conduct a search without a warrant for
purposes of personal protection
– Evidence found in the search may be
used in court Reinforced the ruling in
Terry v. Ohio (1968)
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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The “Terry” Stop
• Terry v. Ohio (1968)
• Reasonable suspicion is needed to “stop and
frisk.” The facts must lead officers to
suspect that crimes may be occurring, and
that suspects may be armed.
• Justification:
– “We cannot blind ourselves to the need for law
enforcement officers to protect themselves and other
prospective victims of violence in situations where
they may lack probable cause for an arrest.”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Reasonable Suspicion Versus
Probable Cause
• Reasonable suspicion is a general
and reasonable belief that a crime
is in progress or has occurred
whereas probable cause is a
reasonable belief that a particular
person has committed a specific
crime.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Reasonable Suspicion Stops
• U.S. v. Sokolow (1989)
– Stops must be evaluated based on a
“totality of circumstances”
• U.S. v. Arvizu (2002)
– “Officers are allowed to draw on their
own experiences and specialized training
• Minnesota v. Dickerson (1993)
• Brown v. Texas (1979)
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Reasonable Suspicion Searches
• Hiibel v. Sixth Judicial District Court of Nevada
(2004)
• The court upheld Nevada’s “stop and identify” law
that requires a person to identify himself to police if
they encounter him under circumstances that
reasonably indicated that he “has committed, is
committing, or is about to commit a crime.”
• Smith v. Ohio (1990)
• An individual has the right to protect his belongings
from unwarranted police inspection.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
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Emergency Searches of Persons
• Emergency searches of persons falls
under the exigent circumstances
exception to the warrant requirement
of the Fourth Amendment.
• Arkansas v. Sanders (1979)
• U. S. v. Borchardt (1987)
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Vehicle Searches
• Carroll v. U. S. (1925)
– Warrantless search is valid if based on
reasonable belief that contraband is present
• Preston v. U. S. (1964)
– Defined the limitations of warrantless
vehicle searches
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Vehicle Searches
• Arizona v. Gant (2009)
– Vehicle searches “incident to a recent
occupant’s arrest” cannot be authorized
without a warrant if there is “no
possibility the arrestee could gain access
to the vehicle at the time of the search”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Vehicle Searches
• Maryland v. Wilson (1997)
– Passengers ordered out of vehicle for officer safety
and are subject to police control
• People v. Brendlin (2007)
– Officers will exercise “unquestioned police
command” over passengers for the duration of the
stop
• Illinois v. Caballes (2005)
• The use of a drug-sniffing dog may not even be
classified as a “search”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Roadblocks and Checkpoints
• Indianapolis v. Edmond (2000)
– The Fourth Amendment prohibits even a
brief seizure of a motorist under a program
whose primary purpose is ultimately
indistinguishable from the general interests
in crime control.
– Checks for drivers’ licenses and registrations
are okay because they do not intend to
“detect evidence of ordinary criminal
wrongdoing”.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Roadblocks and Checkpoints
• Illinois v. Lidster (2004)
– Information-seeking highway roadblocks are
permissible.
– “The law ordinarily permits police to seek
the public’s voluntary cooperation in a
criminal Investigation.”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Watercraft and Motor Homes
• U. S. v. Villamonte-Marquez (1983)
• California v. Carney (1985)
• U. S. v. Hill (1988)
– The warrantless searching of automobiles
extends to include some watercraft,
houseboats, and motor homes.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Suspicionless Searches
• Suspicionless searches may be
necessary in order to ensure public
safety.
• Such searches must be based on
compelling interests.
• National Treasury Employees Union v.
Von Raab (1989)
• Mandatory drug testing for workers
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Suspicionless Border Searches
• Suspicionless searches of vehicles at our
nation’s borders are permitted, even
when searches are extensive.
• U.S. v. Flores-Montano (2004)
– “The Government’s authority to
conduct suspicionless inspections at
the border includes the authority to
remove, disassemble, and reassemble a
vehicle’s fuel tank.”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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High-Technology Searches
• Investigating crime is making greater use
of high-technology devises and practices,
such as thermal imaging devises.
• If the government searches a home using
a device that is not something used by the
general public, and that shows something
that wouldn’t be learned without entering
the house, then a warrant is required.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Intelligence Function
• Police gather information through
many sources, including:
– Informants
– Interrogation
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Two-Pronged Test for the Use of
Informants
• In the case of informants, a twopronged test usually satisfies the
probable cause requirement per
• Aguilar v. Texas (1964).
#1: The source of the informant’s
information is made clear.
# 2: The police officer has a reasonable belief
that the informant is reliable.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Anonymous Informants
• Illinois v. Gates (1983)
• The Court adopted a totality-ofcircumstances approach for assessing
informant information
• Alabama v. White (1990)
• Without other information, anonymous
tips may be used if they accurately predict
future behavior
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Police Interrogation
• An interrogation refers to the
information-gathering activity of
police officers that involves the
direct questioning of suspects.
• During an interrogation, there must
be no:
– Physical abuse
– Inherent coercion
– Psychological manipulation
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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The Right to a Lawyer at
Interrogation
• Escobedo v. Illinois (1964)
• A defendant is entitled to counsel at
police interrogations, and counsel
should be provided when the defendant
so requests.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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The Right to a Lawyer at
Interrogation
• Miranda v. Arizona (1966)
• “The entire aura and atmosphere of police
interrogation, without notification of rights
and an offer of assistance of counsel, tends
to subjugate the individual to the will of his
examiner.”
• Prior to custodial interrogation, a person
must be informed of his or her rights
(Miranda triggers).
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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The Right to a Lawyer at
Interrogation
• Montejo v. Louisiana (2009)
• Overruled Michigan v. Jackson
• Although an attorney had been
appointed, the defendant had never
actually invoked his right to counsel
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Waiver of Miranda Rights
• A waiver of Miranda rights can be
done if such a waiver is voluntary,
knowing, and intelligent.
• Silence is not a waiver.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Inevitable Discovery Exception to
Miranda
• Nix v. Williams (1984)
• Evidence, even if it was otherwise
gathered inappropriately, can be used
in a court of law if it would have
invariably turned up in the normal
course of events.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Public Safety Exception to
Miranda
• New York v. Quarles (1984)
• Considerations of public safety were
overriding and negated the need for
rights advisement prior to limited
questioning that focused on the need to
prevent further harm.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Nontestimonial Evidence
• Nontestimonial evidence generally
refers to physical evidence, including
very personal items that may be within
or part of a person’s body, such as:
–
–
–
–
–
Ingested drugs
DNA
Foreign objects
Blood
Medical implants
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Nontestimonial Evidence
• Concerns over non-testimonial
evidence involve:
– Right to privacy issues
– Body cavity searches
– Electronic eavesdropping
– Electronic evidence
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Right to Privacy
• Schmerber v. California (1966)
– Warrants must be obtained for bodily
intrusions unless fast action is
necessary to prevent the destruction of
evidence by natural physiological
processes.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Body-Cavity Searches
• Strip searches of convicts in prison,
including the search of body cavities,
have generally been held to be
permissible.
• U.S. v. Montoya de Hernandez
(1985)
– The Court upheld a four-day customs
detention of a body packer (until nature
took its course and evidence was
passed from her body).
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Electronic Eavesdropping
• Katz v. U.S. (1967)
– A warrant is required to unveil what a
person makes an effort to keep
private, even in a public place.
– Title III of the Omnibus Crime Control
and Safe Streets Act of 1968 permits
officers to listen to electronic
communications when certain
conditions are met
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Minimization Requirement
• U.S. v. Scott (1978)
– Officers must make every reasonable
effort to monitor only those
conversations that are specifically
related to the criminal activity under
investigation.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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The Electronic Communications
Privacy Act (ECPA) of 1986
• The ECPA held that officers must
obtain wiretap-type court orders to
eavesdrop on ongoing
communications.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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The Telecommunications Act of 1996
• Made it a federal offense to knowingly
use interstate or international
telecommunications device to:
– “create, solicit, or initiate the transmission
of any comments, request, suggestion,
proposal, image or other communication
which is obscene, lewd, lascivious, filthy, or
indecent, with intent to annoy, abuse,
threaten or harass another person.”
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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The USA PATRIOT Act of 2001
• The USA PATRIOT Act of 2001 made it
easier for police investigators to
intercept many forms of electronic
communication. The Act:
–
–
–
–
allows for roving, multi-point wiretaps
broadened “sneak and peek” searches
updated the pen/trap statue
eliminated wiretap orders except for cases of
real-time telephone conversations
– updated and expanded the types of records
that law enforcement can obtain with a
subpoena
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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PATRIOT II
• The 2006 USA PATRIOT Act
reauthorization (PATRIOT II):
– made permanent 14 of the original provisions
and extended others
– addressed concerns of civil libertarians
– provided more protections for mass
transportation systems and seaports
– closed loopholes in laws preventing terrorist
financing
– included the Combat Methamphetamine Act
(CMA)
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
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Gathereing Electronic Evidence
• Electronic evidence is of special
concern because it:
– is latent
– can transcend national and state
borders quickly and easily
– is fragile and can easily be altered,
damaged, compromised, or destroyed
by improper handling or improper
examination
– may be time sensitive
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]
Warrantless Searches of Electronic
Evidence
• U.S. v. Carey (1999)—A federal appellate
court held that the consent a defendant
had given to police for his apartment to
be searched did not extend to the
search of his computer once it was
taken to police station.
• U.S. v. Turner held that the warrantless
search of a personal computer while in
the defendant’s apartment exceeded the
scope of his consent.
Criminal Justice Today: An Introductory Test to the 21st Century
Frank Schamalleger
Copyright ©2011, 2009, 2007, 2005 by Pearson Education, Inc.
publishing as Pearson [imprint]

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