Constitutional Rights

Assignment 2: Constitutional Rights

CRJ325 Criminal Procedure

The Four Elements of Arrest

An arrest is the seizing of an individual into custody for the charge of wrongdoing as the prelude to take legal action against the person for that offense. An arrest has four elements comprising of seizure and detention, the intention to arrest, arrest authority and the understanding of the individual being arrested (Del Carmen, 2014). First, seizure and detention can be actual or constructive. An actual seizure takes place then the police take the person into custody with the use of hands or firearms, or merely touching without the use of force. A constructive seizure occurs when the person peacefully submits to the will and control of the officer without any physical contact, grasping, holding, or use of force. Next, the intent to arrest exists in the mind of the arresting officer and the officer’s’ actions. For example, if a law enforcement agent states that a person is under arrest, places handcuff’s on a perpetrator, and puts the suspect into a police vehicle, the intent to arrest is present. Arrest authority is inherent in policing in that every law enforcement officer is authorized to make an arrest. The final element of an arrest is the detainee’s understanding that an arrest is being made. The officer’s notification of the arrest conveys this understanding. However, if the suspect is unconscious, under the influence of drugs or alcohol, or mentally impaired, the understanding requirement may be postponed or eliminated. In conclusion, the elements of an arrest are dependent not only on the ability and actions of the police officer but also on the awareness of the suspect (Gaines & Miller, 2015).

The Requirements for Search and Seizure with a Warrant

The Fourth Amendment’s probable cause and warrant requirements prohibit law enforcement from conducting arbitrary searches of an individual’s home, papers, belongings, or their physical person. The Amendment imposes four fundamental requirements for the issuance and execution of search and seizure warrants. First, the search warrant must be issued and signed by a neutral and detached magistrate to ensure the assessment of probable cause remains unbiased. Then, the Fourth Amendment requires law enforcement officers to support their request for a search warrant with a showing of probable cause. Third, the Amendment commands that officers attest to the legitimacy of all search warrants by oath or affirmation. An oath means that the officer testifies to the veracity of the claims made to the neutral magistrate. Affirmation is a solemn declaration that functions the same principle as an oath, if an oath is objectionable to the person on religious or ethical grounds. Lastly, the Fourth Amendment requires police officers to draft search warrants describing the items to be seized and the place to be searched. Without a doubt, the search and seizure warrant needs to be sufficiently definite as to allow the executing officer to identify the suspect and property sought with reasonable certainty.

The Plain View Doctrine

Searches and seizures can be made without a warrant when items are in plain view. The plain view doctrine was first tried in Coolidge v. New Hampshire (1971). Vile & Hudson (2012) stated that, “The Court explained in Coolidge v. New Hampshire (1971) that police may seize an item only if it is “immediately apparent” that the item is subject to seizure” (p. 505). The plain view doctrine permits an officer to make a warrantless seizure of incriminating items that are observed while otherwise engaged in a lawful arrest, entry, or search.

The three requirements for a lawful plain view seizure are that the officer’s initial intrusion is legal, the officer must have gained awareness of the item solely by sighting it, and it is immediately apparent that the item is evidence of a crime without the necessity for any further examination or search. The plain view doctrine recognizes that the delay, inconvenience, and risk that the evidence may be lost by the time a warrant is secured. The doctrine permits a seizure in several situations, for example, when making an arrest with or without a warrant, in hot pursuit of a fleeing suspect or making a search incident to a valid arrest. Law enforcement agents can seize using plain view while out on patrol, making a car inventory search, conducting an investigation in residence, or making an entry into a home after obtaining valid consent. In short, the plain view doctrine does not give law enforcement officers a license to look anywhere, at any time, and under any circumstance, or to seize everything. In fact, a police officer may seize or search evidence without a warrant provided the requirements of the doctrine are satisfied.

The Means of Identifying Suspects

Identification procedures are techniques employed by law enforcement agencies to identify suspects. Law enforcement officers use three procedures for immediate identification of suspects. Identification techniques that victims and witnesses are asked to identify perpetrators include lineups, showups and photo packs. First, one of the most common nonscientific methods of eyewitness identification is the lineup. In a lineup, a group of individuals, one of whom is the suspect in custody, appears before a victim or witness. Often the individuals are asked to walk, turn sideways or speak to assist the victim or eyewitness in making a positive identification. Next, the showup is another frequently used method of identification of a suspect. In a showup, law enforcement takes the victim to the suspect to determine whether the victim can make an identification. Sometimes referred to as photo packs or mug shots, photographic identification is a set of photographs of possible suspects that are shown to the victims or eyewitness to identify a perpetrator. Police are also permitted a broad discretion in their search to identify suspects by using DNA testing, polygraph examinations, Breathalyzer tests, and handwriting analysis. To conclude, Orthmann & Hess (2012) stated that, “Regardless of whether an arrest begins or ends an investigation, the arrest must be legal” (p. 212). Indeed, these types of identification procedures can be crucial in building cases against defendants.

Constitutional Rights of the Accused during Trial

Del Carmen (2014) stated that, “The constitutional rights guaranteed in the Bill of Rights are most highly protected during the trial stage of a criminal proceeding” (p. 375). In the U.S. Constitution, the Fifth and Sixth Amendments contain a list of individual rights related to trials intended to provide justice for the accused. The Sixth Amendment states that a person who is charged with a crime has the right to a speedy and public trial by an impartial jury chosen in the state and district where the crime was committed. The amendment also states that accused persons must be informed of the charges, have the right to confront witnesses against them, and to find witnesses in their favor. And, the accused parties have the right to an attorney for their defense. And, under the Fifth Amendment, the accused privilege against self-incrimination safeguards a person from being compelled to be a witness against himself. And the amendment provides protection against double jeopardy. The Double Jeopardy Clause prevents the government from attempting to convict the accused of an illegal act after it has once failed to do so. Also, the accused has the right to fair treatment in the legal process, the procedural due process of the law. Finally, the accused has a right to proof of guilt beyond a reasonable doubt. In conclusion, American constitutional law is deliberately weighted in favor of persons who have been charged with crimes. Thus, the creators of the Constitution and the Bill of Rights realized that appropriate safeguards were critical to liberty.

References

Coolidge v. New Hampshire 403, U.S. 443, 467 (1971).

Del Carmen, R. V. (2014). Criminal Procedure: Law and Practice (9th ed.). Mason, OH: Cengage.

Gaines, L. K., & Miller, R. L. (2015). Criminal justice in action (9th ed.). Boston, MA: Cengage.

Orthmann, C. H., & Hess, K. M. (2012). Criminal investigation (10th ed.). Clifton Park, NY: Cengage.

Vile, J. R., & Hudson Jr, D. L. (Eds.). (2012). Encyclopedia of the Fourth Amendment. Thousand Oaks, CA: CQ Press.