Posted: September 23rd, 2022
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Re-read my comments on Tennessee v. Garner in the Chief’s Corner. Research Tennessee v. Garner on the internet (something besides wiki, please).
Write a detailed summary of the facts of the case (who the players are, what actually happened that night in Tennessee, and the ALL of the resulting court actions,).
In your own words describe the impact that case has had on law enforcement as well as the citizens.
Let’s talk a little about probable cause. The term is defined in your text but the definition is somewhat lacking. Probable cause is one of many terms to describe a burden of proof, like beyond a reasonable doubt [to determine guilt in court] or by the preponderance of the evidence [burden of proof in civil cases]. Burden of proof speaks of probabilities often expressed as percentages – the probability something did or did not occur. For example, to convict someone in court beyond a reasonable doubt the judge or jury must conclude there is a 95 to 99 percent chance the person is guilty based upon the evidence. Probable cause expressed in percentages is about 75 percent chance the person did or is doing what the officer thinks he did or is doing. Probable cause is the burden of proof required before a cop can arrest somebody. As you can see, there is a pretty wide gap in the amount of cause necessary to arrest and the amount of cause necessary to convict. An attorney professor of mine once described probable cause this way: Based on the evidence, a crime probably occurred and a certain person probably committed the crime. That is an oversimplified explanation, but I’ve always thought it was a good one.
States differ in the time they give an officer to serve a search warrant after it’s been signed by a judge. In general, it’s between 2 and 4 days. In Texas, search warrants must be executed within 3 days of issuance. In the context of search warrants of a residence, the general rule is to knock and announce. Simply put, an officer knocks on the door and when asked “who is it” the officer states something like “POLICE” and purpose of the call; SEARCH WARRANT, etc. The text also talks about “no-knock” search warrants in which an officer forces entry without stating their presence or purpose. No-knock warrants are justified in three instances very similar to those listed for warrantless entry under emergency circumstance. Specifically, officers can execute a search warrant as a no- knock if (1) an arrested suspect escapes and retreats into their home [this is a little different from the ‘hot pursuit’ doctrine], (2) officers can articulate a reason to believe they will be met with violence [or violence will be done to a third party] if they announce their presence and purpose, and (3) officers have reason to believe evidence will be destroyed if they announce their presence and purpose. As a result of number 3, most narcotics warrants are no-knock.
The difference between reasonable suspicion and probable cause is sometimes a fuzzy line. Here’s a real life example that may help to illustrate that difference. If I stop you on traffic and observe Zigzag rolling papers and / or other stuff you may buy at a smoke shop, I might have reasonable suspicion that you have dope in the car. I can’t search the car because those items are legal to possess and are not direct evidence of criminal activity. But let’s face it, we all know their purpose. Now, if I stop you on traffic and smell burning / burnt marijuana [if you don’t think it’s distinctive, you’re wrong], I have probable cause to believe you’re in possession. If I want to search based on the Zigzag papers, I need your consent. Conversely, if I smell burning marijuana, I’m going to search without a warrant or your consent because I have probable cause. I’ve had more folks argue I couldn’t search based on the smell of burning marijuana than I can remember. Some were still arguing when I closed the jail door!
A lot is said about searches in general and about types of warrantless searches specifically. Several types are listed in the text but I want to elaborate on only a couple of them. First, let’s talk about consent searches. An officer can search without a warrant if the officer has reasonable suspicion for an investigative stop and the person gives voluntary consent for the search. It’s always dicey to get verbal consent to search [say, a vehicle for example] without some form of proof that consent was really given. You can put it in your offense report, but that doesn’t stop a defense attorney from attacking the “voluntariness” of the consent and putting doubt in the jury’s mind. Some agencies are required to get the person to sign a voluntary consent form, but that’s problematic too. Here’s what happens, officers work the conversation to a point that the iron is hot, so to speak. At that point, the officer asks for and is given consent to search. When the officer says hold on a minute, goes back to the car and fills out a consent form, asks the person to read and sign it, the moment is often lost and the person says no. Once voluntary consent is withdrawn, the officer can’t legally search even if voluntary consent had been given earlier. The best way to document consent on a traffic stop is to record it on the in-car video system if the car is so equipped or on a body worn camera, if available. It’s pretty much indisputable and the officer doesn’t have to tell the person the encounter is being recorded. As such, documentation is obtained without the “moment” being lost.
Here’s another observation on consent searches. I’ve read multitudes of offense reports in which an officer had probable cause but asked for consent anyway. Like the example above, if a cop smells burning marijuana on a traffic stop, there is probable cause to search. Don’ ask for consent! Officer’s think they’re helping their case by getting consent when in fact they’re wrecking it. OK, same scenario. What happens when the officer asks for consent to search and the person says no? Well, the cop either walks away from their probable cause or they search anyway. The latter is usually the option of choice. So the case goes to court and the defense asks our cop if he asked for consent to search. Our cop says yes. The defense asks if the accused consented and our cop says no. The defense then asks on what grounds the search was conducted and our cop says they had probable cause. The defense then asks why the cop asked for consent if probable cause existed. The defense points out that our cop must not have had faith in their probable cause or they wouldn’t have asked for consent. The defense points all this out in the closing argument to the jury and says maybe, just maybe the cop didn’t have probable cause at all and searched anyway without consent. If you’re not a cop this might not make sense to you but it’s a pet peeve of mine. If you are a cop and ask for consent when you have probable cause; stop it!
Here’s an issue with vehicle searches. It used to be if somebody was arrested in their car it gave cops pretty much a blank check to search the vehicle. Now, if you arrest somebody out of a vehicle, you can only check the areas where he can easily reach a weapon unless you develop other probable cause that lets you look (like the smell of burnt marijuana). But, what about out of the car? Here’s an example: You have a warrant on Joe Doaks for Assault (he punched his neighbor) and you see his car sitting in the parking lot where he works. You sit up on it and wait for him to come out. Sure enough, along about quitting time, here comes Joe. As he’s about to put the key into the lock, you arrest him. Can you search his car? The simple answer is no! But by now you know there are no simple answers. Let’s say the warrant you have on Joe is for carrying a pistol, for example, you MAY get by with searching the car because it’s reasonable to suspect the gun is in it. It’s not reasonable to think there’s any evidence you’ll retrieve from the car if the warrant is for the assault [punching his neighbor]. So if you search the car and find dope, it’ll probably be suppressed. OK, hopefully that’s clear, now let’s complicate it a little more. Say you arrest Joe for the assault as described above but can’t leave the car parked where it is. Let’s say it’s parked on the street. You have the right to tow the car for safekeeping and as such you’re permitted to inventory the car. You can inspect pretty thoroughly when doing an inventory to include looking in the glove box, trunk etc. You can look in any containers that may be in the vehicle assuming they’re open. You can’t open a locked container [say a briefcase] found in the car. Suppose you do an inventory of the car and “accidentally” find drugs. Can you charge Joe? Probably, but agencies should have strict guidelines on vehicle inventories that distinguishes them as such and precludes them from being used as a reason to search somebody’s car for contraband.
The text speaks of plain view searches. Other parts of the material speak to open field searches. There is another type of search that is neither one but somewhere in the middle. Police can and do search garbage cans for clues into possible criminal activity of the property owner. In general, it’s a type of strategic surveillance. The Supreme Court has ruled that once somebody puts something out for the trash, it’s in the public domain and may be accessed by anybody with an interest in it. The moral of the story: if you don’t want the cops to know about it, don’t put it in the trash!
Terry v. Ohio is an interesting case. In short, a veteran detective with 30 years on the Cleveland PD on the same walking beat observed Terry [and others] casing a jewelry store. He didn’t have probable cause, but based upon his experience he knew what “casing” a location looked like and he knew robbers usually carried guns. With that in mind, he detained them, performed the first recorded “Terry Stop” and low and behold, found the men armed with revolvers. What you may not pick up on is that a stop and frisk under Terry requires the belief the person may be armed. Stop and frisk is not about finding evidence, like contraband. For example, if I see you standing on the corner with some known druggies, I can’t stop and frisk you for dope because you see me watching and you turn and walk away. If I can tie it to a belief you’re armed, the stop and frisk is legal and any other evidence I find [like a baggie] is admissible.
Along these lines, the text talks about stuff that constitutes probable cause and lists somebody running away as one of the tenets. It does say that probable cause is found in the totality of the circumstances and a single tenet may not be sufficient to stand alone. Trust me, running away does not constitute probable cause by itself [we’re not talking evading a lawful arrest here]. OK, here’s how it works. We see this guy talking to druggies. He sees us and bolts. Assuming we can run him down, we probably don’t have probable cause to search [although you never know what the court will say]. We have reasonable suspicion to catch, detain, and question him and hope he says something or does something that gives us probable cause. Now, let’s change it a little. We see the same guy talking to known druggies and it looks like one of them hands the guy a small package but we truly don’t know what it is. Anyway, as we approach, he runs. This time we can search him with probable cause based upon the totality of the circumstances. We see him with known druggies, we see a transfer of an unknown package, and he runs when police show up.
The text speaks of the force continuum; that force may be applied by an officer at one of several levels. The term “continuum” implies force must go through stages. For example, an officer must apply verbal force before moving to hands-on before moving to an intermediate weapon [baton] and so on. Not so. Officers jump in at the level necessary to deal with the resistance they are encountering. In fact, the text does not do a good job explaining the rule of thumb officers use to determine how much force to use. Would you like to know the rule? I’m glad you asked. Officers are instructed to use only that force necessary to accomplish the objective and no more. Furthermore, once the objective is accomplished, all use of force must stop. That may sound fuzzy to you, but believe me, cops know what it means. The text lists some criteria that help determine what level of force is appropriate or reasonable. Reasonableness is determined by asking what a prudent officer would do under the same circumstances. Among the criteria listed is the seriousness of the crime. That’s very misleading. I’ve put folks in jail for murder and never had to lay a hand on them at all. Simple verbal instructions, not even commands, were sufficient. On the other hand, some of the bloodiest fights I’ve been in were with folks I was arresting for something as simple as a traffic warrant. So, how much force can an officer use? Simply put, as much force as necessary and nothing more. An officer can generally use one level of force higher than the force he is encountering. For example, if you give a verbal command (low level of force) and the bad guy says “no”, you can put hands on him if necessary (a level higher than verbal) to force compliance. If you think about it, it makes sense. If an officer could only use the same level of force being used against him, such as verbal, then all you have is an argument . . . “Put your hands behind your head” – “No” – “Yes” – “NO, I’m not going to” – “Yes, you are”, etc.
The courts have used a two-pronged test to determine the appropriateness of an officer’s use of force. They are the “reasonableness” prong and the “standing in your shoes” prong as described in the text. Both prongs must be met. The reasonableness prong says that the force used would have been considered reasonable by other officers under the same circumstances. It does not mean that all officers everywhere would consider it reasonable [big difference]. The standing in your shoes prong goes a long way to explain some court rulings. For example, an officer orders a suspected felon to freeze. Instead, the person turns toward the officer with something in his hand. Its dark, the officer is alone, he thinks the person may be a felon, the person was told to freeze and instead whirls around, the person is holding an object in his hand which is directed toward [not necessarily pointed at] the officer, and the officer shoots him thinking the object was a gun. It turns out the “felon” is a 15 year old kid whose only crime was that he sneaked out of the house after hours and his “weapon” is a cell phone. The court must rule on what the officer thought or perceived at the time as long as it was reasonable; not on what was learned in the cold gray light of dawn.
The United States Supreme Court historically has used the fourth amendment as the foundation for examining a wide variety of police practices including a warrantless arrest in a private dwelling, a search incident to arrest, the use of an informant’s tip to establish probable cause, a pat-down for weapons, and electronic eavesdropping. In Tennessee v. Garner the Court extended its application of the fourth amendment to the use of deadly force by a police officer to apprehend a fleeing felon. The Garner Court held that the fourth amendment prohibits the use of deadly force to apprehend a fleeing felon “unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Tennessee v. Garner is a very important case – we will revisit it in the assignment for this lesson.
Folks often debate whether a traffic stop is a detention or an arrest. Actually, it is somewhat like a Terry stop in that the person doesn’t feel they are free to walk away but aren’t under physical arrest either. The text calls it an investigative detention. The distinction is important because if the person is not under arrest and makes incriminating statements, for example, about whether dope is in the car, the statements are admissible without a Miranda warning. On the contrary, if the person is under physical arrest [generally referred to as custodial arrest] and the officer wants to question him about drug possession, Miranda is necessary.
The text talks about the exclusionary rule which basically says that any evidence obtained in an illegal manner [illegal search for example] is not admissible in court even if it’s critical to the case. There are three exceptions to the rule. In other words, three situations in which evidence can be obtained illegally and still be admissible in court. The exceptions are:
(1) Good Faith Exception (United States v. Leon, 1984) – Use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a neutral magistrate but that is ultimately found invalid.
(2) Inevitable Discovery Exception (Nix v. Williams, 1984) – Evidence that has been seized illegally or evidence stemming from illegally seized evidence is admissible if the police can prove that they would have inevitably discovered it anyway by lawful means.
(3) Computer Errors Exception (Arizona v. Evans, 1995) – Officers acting in good faith based on the information available to them cannot be held responsible for a clerical error made by a court worker.
The following is intended to assist you in preparation for the quiz. It is not intended to substitute the reading material, simple to point out areas of special interest. It is not all inclusive.
Be familiar with the following:
Fleeing Felon Rule
Use of force
Stop and Frisk
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