Presentation Transcript

1. ARREST Due Process as it relates to the laws of ARREST
2. NRS 171.123 What is stated in the Nevada Revised Statutes that pertains to detention of a person? NRS 171.123 Temporary detention by peace officer of person suspected of criminal behavior or of violating conditions of parole or probation: Limitations.
3. NRS 171.123 What is stated in the Nevada Revised Statutes that pertains to detention of a person? 1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime.
4. NRS 171.123 What is stated in the Nevada Revised Statutes that pertains to detention of a person? 2. Any peace officer may detain any person the officer encounters under circumstances which reasonably indicate that the person has violated or is violating the conditions of the person’s parole or probation.
5. NRS 171.123 What is stated in the Nevada Revised Statutes that pertains to detention of a person? 3. The officer may detain the person pursuant to this section only to ascertain the person’s identity and the suspicious circumstances surrounding the person’s presence abroad. Any person so detained shall identify himself or herself, but may not be compelled to answer any other inquiry of any peace officer.
6. NRS 171.123 What is stated in the Nevada Revised Statutes that pertains to detention of a person? 4. A person must not be detained longer than is reasonably necessary to effect the purposes of this section, and in no event longer than 60 minutes. The detention must not extend beyond the place or the immediate vicinity of the place where the detention was first effected, unless the person is arrested. (Added to NRS by 1969, 535; A 1973, 597; 1975, 1200; 1987, 1172; 1995, 2068)
7. Contact Can be Made Through Probable Cause what is the definition? Reasonable Suspicion what is the definition? Consensual
8. Probable Cause Probable Cause Is A legal criterion residing in a set of facts and circumstances which would cause a reasonable person to believe that an offense has been committed and that a particular person has committed the offense. It is the necessary level of belief which would allow for police to arrest individuals and to search dwellings, vehicles and possessions.
9. Probable Cause The amount of evidence necessary to arrest a suspect, or for a judge to issue an arrest or search warrant, or for a Grand Jury to indict a suspect. This is best described as less than absolute certainty or “beyond a reasonable doubt” but greater than mere suspicion or a hunch. A set of facts, information, circumstances or conditions that would lead a reasonable person to believe that an offense was committed and that the accused committed that offense.
10. Probable Cause If probable cause (PC) does NOT exist then a police officer can NOT arrest a subject, a judge can NOT issue an arrest or search warrant, and a Grand Jury can NOT indict a suspect.
11. Probable Cause Scenarios As a Robbery Detective you are following up on a report about a robbery to a person. It is reported by the victim that she was walking from the bus stop at Flamingo & Paradise to her job at Terrible Herbst Hotel & Casino. As she got into the parking lot, she was approached by a WMA who produced a handgun and demanded her purse. Out of fear for her life, she gave the male her purse, he then fled to a vehicle that was parked about 40 ft. away. The vehicle then exited the parking lot and went south bound on Paradise. She described the main suspect as a WMA, 5'10" 180 lbs., brown hair, wearing a black short sleeve T-shirt and jeans. She did not notice anything unusual about him, but she believes she could ID him. She cannot describe the second suspect, driver of the car, and the car was a dark two door.
12. Probable Cause Scenarios About a week later, you receive an anonymous telephone call. The female caller tells you she knows about the robbery because her ex- boyfriend told her he did it. The only info she can give you about the robbery is where it happened and that two males in a car were involved. She tells you her ex-boyfriend owns a dark two door Ford. She will not come in and give a formal statement. You get the information on the ex- boyfriend and go to his residence, which is three blocks from the location of the crime, to interview him. You note that he fits the general description, owns a dark two door Ford, he can't remember where he was at the time and day of the crime and has a prior for Larceny From A Person. He is not 100% cooperative and denies committing the robbery. Based on the statement of the ex-girlfriend, him fitting the general description , owning a dark two door car, can't remember where he was that day and his prior you arrest him for "Robbery, Use of a Deadly Weapon in the Commission of a Crime and Conspiracy to Commit Robbery".
13. Probable Cause Scenarios As a patrol officer you stop a vehicle for, "Failure to Yield to a Pedestrian in a Crosswalk", you approach the driver’s window, as the driver rolls down the window, and you make contact, you smell the odor of what you believe is marijuana. For the moment you don't mention the odor and obtain the driver's license, registration and insurance, which everything is in order. As you question him, you find out he had his license suspended before for "Driving Under the Influence". You now mention the odor you smelled. The driver states he had gotten one marijuana cigarette from a friend and smoked it right before he was stopped. When asked, he says there are no drugs in the car, you ask him if you can search the car he says "no".
14. Probable Cause Scenarios You have a K-9 unit come to the scene, after explaining to the K-9 officer what you have he sends his dog around the exterior of the car of which all the doors are closed and the windows rolled up. The dog alerts at the front drivers’ side door of the car. You open the door and under the driver’s seat you find a baggie of marijuana. You now place the driver under arrest for 'Possession of a Controlled Substance, Marijuana" Upon doing an inventory of the car for it to be impounded, you find a half pound of marijuana in the trunk, you now amend the charge to "Possession with the Intent to Sell"
15. Reasonable Suspicion Reasonable Suspicion Is the ability to objectively, with a foundation, not just a hunch, articulate that some type of criminal behavior is afoot. This is less then PC. An arrest cannot be made based on Reasonable Suspicion. This allows for an encounter when the officer believes a crime is about to be committed, is being committed or has just been committed for the opportunity to build PC for an arrest.
16. Reasonable Suspicion Scenarios As a patrol officer you are in a parking lot eating your Subway sandwich at 1655 hrs on a Tuesday. A couple of businesses down from where you are parked is a Wells Fargo Bank. As you look up you see a WFA come out of the bank, she pauses just outside the doors and appears to jam something into her purse, she also appears agitated. She appears to look in your direction, the expression on her face seems to change from angry to nervous, and she hurries off in the opposite direction away from you.
17. Reasonable Suspicion Scenarios Seconds later an employee comes out of the bank looks around, notices you, and approaches your vehicle. The employee says there was a WFA, who just left the bank, she was trying to cash a check and it appeared the signature on the check did not match the signature of the account holder the bank has on file. As a bank employee was trying to contact the account holder via telephone the female grabbed the check and left the bank, the employee describes the WFA and the description is the same as the WFA you had seen leaving. You head off to look for the WFA and find her walking about two blocks from the bank and you stop the female.
18. Reasonable Suspicion Scenarios It is 0300 hrs on a Wednesday night and you are doing slow patrol in a residential neighborhood. As you round the corner from one street to the next you see a HMA running on the sidewalk, he is dressed in a T-shirt, shorts and running shoes. You turn your spotlight on and shine it in his direction. As you do, it appears he starts to run faster and he crosses the street, but he does not stop. You turn your emergency lights on and stop the HMA as he runs up into a yard.
19. Consensual Consensual means: This is a voluntary encounter where as the person willingly makes themselves available to an officer for an interview/conversation. This is no more than an investigative tool when there is no Reasonable Suspicion or PC, the person must know they are free to leave.
20. Probable Cause or Reasonable Suspicion? As a graveyard patrol officer, it is 0200 hrs on a Sunday morning, you are patrolling a closed industrial complex which is private property that has had 4 burglaries in the last two months. As you round the corner you see a dark colored vehicle without a front license plate backed into the loading dock of one of the businesses. There is a subject dressed in dark clothes sitting on the trunk of the car. Articulate what you believe you have.
21. Probable Cause or Reasonable Suspicion? As a graveyard patrol officer, it is 0330 hrs, you are dispatched to a 406A, silent, at a gun store located in a strip mall. As you turn the corner onto the street where the mall is located, about the middle of the mall, a car is coming in your direction with the lights out and it has no front license plate. It has dark tinted windows, so the occupants cannot be seen, the car continues past you and turns on it’s lights. At this point, you get an update from dispatch that there is a guard on scene and it appears to be an actual 406 as entry into the gun store had been made via the front glass door being broken out. The guard can see into the store and it appears the glass of three display cases has been broken and there are empty spots in the cases where he believes guns could have been displayed. Articulate what you believe you have.
22. DUE PROCESS Fifth, Sixth and Fourteenth Amendments to the US Constitution require due process Mandates that justice system officials respect the rights of the accused throughout the process Relates to three major areas * Evidence and investigation (Search and seizure) * Arrest * Interrogation
23. DEFINITION Officers seize people as well as property An arrest is a seizure It occurs whenever an officer restricts a person’s freedom to leave What is arrest? What is custody? When is a person “free to leave”?
24. DEFINITION “Free to leave” test is determining factor for whether a person is under arrest Would a “reasonable person” believe they are free to leave? What is arrest? What is custody? When is a person “free to leave”?
25. Points to Ponder Does a person’s state of mind play a part in their freedom to leave? What would you consider as signs that you were not ‘free to leave’?
26. More information on ARREST When do most arrests occur? Why is probable cause important? At what other times is an arrest made? Most arrests occur after the questioning of a suspect. Officer determines that a crime has been committed and that the person is now the suspect, and is probably the one who committed it. Probable cause is the minimum necessary for arrest under any circumstances. Arrests can be made for crimes in progress
27. More ARREST landmark cases . . . Yarborough vs. Alvarado (2004) Payton vs. New York (1980) Unless suspect gives consent or emergency exists, police must have an arrest warrant if the arrest requires entry into the suspect’s private residence Court held that “absent exigent circumstances” the “firm line at the entrance to the house may not reasonably be crossed without a warrant” 17 year old boy interrogated for two hours Not advised of Miranda Boy confessed to murder and was later arrested Court held that he was not in custody even though he was later arrested because officer’s actions indicated boy was free to leave Court looks at “totality of circumstances”
28. US Supreme Court landmark cases relating to ARREST US vs. Mendenhall (1980) Stansbury vs. California (1994) Reiterated Mendenhall case Issue was interrogation of suspected child molester and murderer Was he free to leave the interrogation? Court said must examine all circumstances of interrogation and determine if the restriction of movement was at the degree to which would amount to a formal arrest Justice Potter Stewart set forth the “free to leave” test to determine if a person has been arrested Said a person has been seized if in view of all the circumstances, a “reasonable person” would believe he was not free to leave
29. Felony vs. Misdemeanor ArrestsCompare and Contrast Felony Misdemeanor Generally only allowed when crime is in progress and committed in presence of the officer Allowed with a warrant Normally not arrested for minor criminal offenses such as seatbelt law violations Generally allowed without a warrant when crime is not in progress, when probable cause exists Allowed without a warrant when a crime is in progress Generally not allowed without an arrest warrant if the suspect is inside his/her residence
30. Search Incident to Arrest What is “search incident to arrest”? What is the purpose of it? Search incident to arrest is a search conducted of a person, or his or her belongings, or his or her vehicle, upon his or her arrest. It is conducted simultaneously, or immediately after, his or her arrest. The purpose of search incident to arrest is officer protection.
31. Search Incident to Arrest Chimel vs. California – officers argued that search when arresting someone is necessary not to uncover evidence but as part of arrest process, for officers’ protection. In this case they searched the entire residence without a search warrant.
32. Search Incident to Arrest US Supreme Court held that when search goes beyond the person arrested and the area in is immediate control, it is no longer valid. A search incident to arrest must be limited in scope only to the area in immediate control of the arrestee, for the officers’ protection.
33. Searches Incident to Arrest US Supreme Court has agreed that police officers have a right to protect themselves from danger and therefore can search a suspect regardless of gender, and the area in the suspect’s immediate control Any evidence or contraband found during this search can be used against the suspect in court It is called “search incident to arrest”
34. Interrogation Due Process as it relates to questioning suspects
35. Interrogation defined, and limitations What is interrogation? When is it limited? Miranda decision Defined as any behaviors by police that are reasonably likely to elicit incriminating response Includes lineups, blaming society, claiming suspect is guilty, for example
36. Interrogation defined, and limitations What is interrogation? When is it limited? Miranda decision Must not use physical abuse, inherent coercion (blinding light, lengthy interrogations, hostility designed to terrorize) Miranda v. Arizona is most famous case
37. Miranda v. Arizona (1966) Ernesto Miranda confessed to kidnapping and raping a woman in Phoenix, Arizona Convicted and appealed case to US Supreme Court Court held that confession was invalid because Miranda not notified of his rights and given opportunity to consult an attorney
38. Miranda v. Arizona (1966) Important to note that until that time no one was notified of their rights before interrogation so police were acting according to acceptable police practices. This case changed due process and had greatest affect on criminal justice in the last half century
39. The Miranda Rights You have the right to remain silent Anything you say can be used against you in a court of law You have the right to talk to a lawyer and to have a lawyer present while you are being questioned If you want a lawyer present during questioning and cannot afford to hire a lawyer, one will be appointed to represent you at no cost before any questioning If you answer questions now, with or without a lawyer here, you still have the right to stop answering questions at any time
40. Waiver of Rights Do you understand each of these rights I have explained to you? Having these rights in mind, do you now wish to answer questions?
41. Requirements of Miranda Rights must actually be WAIVED in order for a confession to be valid It is not enough to just read the suspect his/ her rights – they must actually acknowledge they understand the rights and that they voluntarily waive those rights
42. Requirements of Miranda It is best to read the rights off a card or paper and have the suspect sign A) that they understand their rights B) that they waive those rights (if they do) Get a witness to sign
43. Requirements of Miranda Rights must be read ONLY WHEN suspect is A) in custody AND B) being asked questions about the case – (officers can ask basic questions like name, address, identifiers without Miranda warning, misdemeanor, ) Miranda is NOT required when suspect is A) NOT in custody (in other words – free to leave) OR B) in custody but NOT being asked questions Miranda is frequently overused by law enforcement officers at a time when suspects do NOT in fact have the rights under Miranda
44. Miranda Scenarios A suspect has voluntarily come to the police station to be questioned. She drives herself in her own car and is advised she is free to leave the interview at any time. In which of these scenarios are police required to read the suspect his/her Miranda rights? In which of these scenarios do the Miranda rights not attach?
45. Miranda Scenarios As a patrol officer you are asked by Homicide Detectives at a homicide scene to transport a suspect to the detective bureau while en route you ask “What’s going on?" In which of these scenarios are police required to read the suspect his/her Miranda rights? In which of these scenarios do the Miranda rights not attach?
46. Miranda Scenarios Answer: If the suspect has not been Mirandize by the detectives or this patrol officer nothing he says is admissible. Miranda must have been given. Why?
47. Miranda Scenarios If the suspect starts the conversation such as in this case while en route the suspect says "I can't believe I did that" the officer can talk to him without Miranda, the officers says "what do you mean, or what are you talking about". In which of these scenarios are police required to read the suspect his/her Miranda rights? In which of these scenarios do the Miranda rights not attach?
48. Miranda Scenarios Answer: Any statement made by the suspect is admissible.
49. Miranda Scenarios As a patrol officer you are ATL for a bank robbery suspect of a robbery that just happened, you stop a subject based on a description and after getting his ID and general information you ask "what’s going on today?" The suspect says, “You got me, I robbed the bank". In which of these scenarios are police required to read the suspect his/her Miranda rights? In which of these scenarios do the Miranda rights not attach?
50. Miranda Scenarios Answer: This is good to go. There is not a "Custodial Interrogation." He was free to leave, as this was an investigative stop and no question was directed towards the robbery. Neither prong is met, causing the need to advise Miranda non-existent here.
51. What to do during questioning, when Miranda is not required How to be sure you are on firm legal footing if Miranda is not required and you are questioning a suspect This makes it clear to the court that the interview was voluntary Ask the suspect to voluntarily come to the police station Have the suspect drive his/her self to the questioning Advise the suspect that he/she is NOT under arrest AT THIS TIME and is free to leave at any time
52. What to do during questioning, when Miranda is not required How to be sure you are on firm legal footing if Miranda is not required and you are questioning a suspect This makes it clear to the court that the interview was voluntary Situate the suspect in the interview room with access to leave the room Advise the suspect that they don’t have to answer any questions Keep good notes as to the above