Chapter 10

Law’s Techniques

 

Precondition of law enforcement is information.  What are bad guys doing?

Problem:  What about protecting privacy of good guys?

Recall definition of "law enforcement"

Fourth Amendment

 

10.1   Confronting the Complexity of the Policing Function

            Legal system as a system

 

Crime/Allegation à Investigation à Arrest à Prosecution à Conviction à Punishment à Parole

 

            Police have many non-enforcement duties.  Community policing was supposed to improve police relations with community, especially minorities and young people.  Theory was that community would help more in fighting crime, and that crime could be prevented through stings, etc.  Also, crack down on the “little” quality of life crimes.  Tension with stretched budgets.  Can the police do all this other stuff?

 

            Police discretion.  Trend is to take away police discretion.  For example, some states now require arrest on probable cause of domestic violence.  Expanded to all sex crimes.  Date rapes now treated as seriously as other rapes. 

 

            Problem:  This jams the system.  Prosecutors now have to sort out what they will prosecute because of the high number of arrests.

 

            Arrest, not prosecution, is the main weapon.  Many arrests do not lead to prosecution.  Street sweeps for gangs and drugs, e.g.

           

            POLICE DO NOT ENFORCE ALL THE LAWS ALL THE TIME.

 

            Note the quote at the end:  We do not say, here is a problem, solve it.  We say here is a problem, here is a big rulebook you have to follow as you try to solve it.

 

10.2  Walking the Beat Alone           Campbell

            Details the difficulties black people have with the police, both as suspects and as police officers.

            Note the different attitudes blacks and whites have toward the police.  Black men expect to be search for weapons during a routine traffic stop.

            Young black male in an expensive car is a drug suspect.  Black young male in an expensive car is a snot nosed rich kid.

            She set out to be “working officer,” i.e. one that deals with serious felony suspects.

            Problems arose.  E.G. suspected kidnapping.  She took seriously, other cops thought it must be a drug deal issue.  She then had times where she had to go without backup on dangerous assignments.  She believes the other officers retaliated against her.

            Another example:  In one area, black people thought it was illegal to carry more than $200 in cash. 

 

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.

 

Introduce basic search and seizure law:

 

            Generally, fourth amendment allows search only on probable cause, with a  warrant.  Sometimes, police can search with probable cause but without warrant.

            Examples:        OJ

                                    Cops episode with guy who had garbage bags full of marijuana in

                                    trunk of car.

 

10.3  Terry v. Ohio (1972)

            Facts:  Experienced policeman noticed guys checking out store window repeatedly.  Decided to watch some more.  Finally, decides to question them.  As a precaution, he patted them down.  Found a gun.  Defendant convicted of illegal possession of firearm.

 

            Holding:  Stop and frisk allowed on "reasonable suspicion" to protect officer's safety.  Generally a lower standard than probable cause.

 

10.4  Brown v. Texas (1979)

            Facts:  Police saw two guys in alley, walking away from each other.  Area known drug area.  Man refused to identify himself.  Police arrested him for breaking law requiring people to identify himself to police.  Turned out no evidence of another crime.

 

            Fined $20.  Appealed, and convicted again, fined $45

 

            Holding:  Law is unconstitutional as applied.  Fifth Amendment right to remain silent.

 

            .cf Hiibel v. Nevada (2004)   There was reasonable suspicion to stop.  There was no fear that identification would lead to incrimination, so no Fifth Amendment right violated.  Leaves open question of what happens if id leads to incrimination.

 

 

10.5  Florida v. Bostick (1991)

            Facts:  Police were conducting dragnet sweeps on buses.  Police would ask people questions, and ask for consent to search.  That is legal on street.  Recently held legal in airports.  In this case, police questioned guy on bus.  He consented to search, and he had a lot of cocaine.

 

            Question:  On a bus, did man feel that he could refuse consent?  If no, then illegal search without cause.

 

            Holding:  No automatic rule that sweep of buses is illegal.  Remanded for findings on whether suspect felt he could refuse consent.

 

10.6  Interstate Travel           Tatelman

            Air transportation rules since 9-11.

            Not all security measures are publicly disclosed.

            Watch lists are not public.  How they make watch lists is not public.

            At least two members of Congress stopped for being on watch list.

           

            Note law on 302.  Changed to include all transportation, not just air.

            Case challenging secret security rules.  Currently on appeal to 9^th Circuit.

 

            5^th Amendment challenge:  Due process, right to know the law.

            Right to Travel:  Do the rules unduly burden right to interstate travel?

            Right to freely assemble:  Same sort of thing.