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Bad laws are the worst sort of tyranny (Edmund Burke)

    The study of legal constraints on police, or what might be awkwardly called police law, is generally the study of four areas -- stop and frisk, search and seizure, arrest, and interrogation -- and in-depth analysis of two rules devised by the Supreme Court -- the exclusionary rule and Miranda rule.  There's a vast difference between the perfect world of policing as the law and Supreme Court would have it and the imperfect world of policing on the street.  The U.S. Constitution and Bill of Rights contain specific provisions protecting citizens from abuses of police power, but interpretation of those provisions in modern times is no easy matter.  


    The era of Supreme Court history known as the Warren Court (1953-1969) gave us most of the rules that "straight-jacketed" the police, but conservative courts since then have created numerous rule exceptions.  The U.S. has a unique set of checks and balances on police power, and it will appear shocking at times to see the guilty go free because of a police mistake or blunder, but that's all part of our great experiment -- as the Supreme Court sees it -- by punishing society for police mistakes in hopes of getting police to make fewer mistakes.



    There are times when the police are not interested in arresting anybody, nor in securing any admissible evidence for use in court.  These are the times when police are only in the initial stages of an investigation, and are only interested in checking out any person(s) or place(s) that looks suspicious.  These activities are known by a variety of names -- field interrogations, field interviews, field inquiries, threshold inquiries, pretext stops, or just routine questioning -- but what they all have in common is that they are subject to stop and frisk law as outlined in Terry v. Ohio (1968), a case where police stopped and patted down three men looking suspiciously into a store window.  The American practice of stop and frisk is very similar to the "identity checks" that police do in foreign countries.  


    Stop and frisk law gives the police a right to temporarily detain somebody in a public place if there are specific articulable facts leading a reasonable police officer to believe a crime might be occurring. This standard is known as "reasonable suspicion", although some people call it articulable suspicion or more than mere suspicion. It is not necessary for the officer to identify any specific crime they think is being committed, only that a set of circumstances exist that would lead a reasonable officer to believe some kind of criminal activity is occurring.  The Supreme Court thinks of it as one step above a hunch, and the police think of it as profiling.


    Now, there's certain things the police cannot obviously do.  They cannot stop and frisk anyone in a private place, especially a private dwelling.  If they were to possess X-ray eyes or infrared scanning devices, and used them to look inside your house, that would be illegal without a warrant (the Supreme Court decided that in Kyllo v. U.S. in 2001).  In fact, the whole thrust of Fourth Amendment jurisprudence is in the direction of less, rather than more, technology in the hands of police.


    The next thing they cannot legally do is racial profiling.  You simply cannot use skin color or the fashion accessories of a particular minority group as a basis for anything in criminal justice - period.  What they can do is engage in drug courier profiling (and here's a list of indicators) which does allow consideration of nervous appearance and ostentatious apparel, among other things. 


    The last thing they cannot do is strip you down and invade the orifices of your body, for example, cavity searches are out of the question.  The frisk, or "pat down" must be primarily for weapons and only involve the outer clothing.  The amount of time a citizen is delayed must be reasonable, and there's no arbitrary limit, but times of 30 minutes have been declared reasonable and times of 90 minutes have been declared unreasonable.  It all depends on the situation or circumstances, a standard known as the totality of circumstances, which is an integral part of stop and frisk law, along with the experienced police officer standard, which lets police determine for themselves when they are in fear of harm.


    What they can do is stop anyone who is acting strangely, does not seem to "fit" the time or place, is loitering, appears to be associating with known criminals, or fits the description of a wanted criminal.  The most controversial part of this is that police can stop anyone they think is considering or thinking about a crime.  This will likely be an issue that soon comes up in a future Supreme Court session.



    It was 1961 (in the case of Mapp v. Ohio) that the Supreme Court finally held state and local police departments accountable to the exclusionary rule.  Prior to that, it was only the federal police and a handful of states that had rules about the exclusion of improperly obtained evidence.  Every place had always used warrants, where an officer swore under oath that evidence of a crime could be found, but the standard was (and still is) probable cause, and this made for little distinction between a search warrant and an arrest warrant.  Instead, what Mapp enforcement of the exclusionary rule meant was that the 4th amendment standard of reasonableness would now be applied across-the-board.  Reasonableness is a complex word with many meanings -- logical, practical, sensible, intelligent, and plausible.  It's definition is debated among legal scholars.  Probable cause is when police use their training, experience, or expertise to infer or recognize a pattern. 


    The exclusionary rule is the courts' most powerful tool for controlling the police.  All it takes is one piece of illegally obtained evidence -- it could be (and often is) the most critical, incriminating piece of evidence, such as the murder weapon -- and something called fruit of the poisoned tree kicks in, and any subsequent evidence derived from that one piece of illegally obtained evidence is inadmissible.  However, there are numerous exceptions to the exclusionary rule, as the following table illustrates:


Good faith or minor transgressions
(the police thought they had probable cause, but legally didn't)
U.S. v. Leon (1984)
Massachusetts v. Sheppard (1984)
Illinois v. Krull (1987)
Maryland v. Garrison (1987)
Illinois v. Rodriguez (1990)
Plain View or public inspection
(police "sightings" by coincidence; inevitable discovery of evidence anyway)
Harris v. U.S. (1968)
Coolidge v. New Hampshire (1971)
U.S. v. Irizarry (1982)
Nix v. Williams (1984)
Horton v. California (1990)
Automobile or inventory exception
(searches of passenger compartments, trunks, door, floor panels; any moving vehicle)
Carroll v. U.S. (1925)
Chambers v. Moroney (1970)
New York v. Belton (1981)
U.S. v. Ross (1982)
California v. Carney (1985)
California v. Acevedo (1991)
Ornelas v. U.S. (1996)
Emergency, exigent, or incidental exception
(danger to life, risk of escape, or destruction of evidence; when knocking and announcing would be dangerous or futile; protective sweep searches; prompt action necessary in name of public safety)
Warden v. Hayden (1967)
Chimel v. California (1969)
U.S. v. Edwards (1974)
Mincey v. Arizona (1978)
New York v. Quarles (1984)
Borchardt v. U.S. (1987)
Maryland v. Buie (1990)
Wilson v. Arkansas (1995)
Richards v. Wisconsin (1997)
Illinois v. McArthur (2001)
Open fields or abandoned property
(garbage and stuff in the yard; aerial observation with naked eye)
Hester v. U.S. (1924)
Oliver v. U.S. (1984)
California v. Ciraolo (1986)
U.S. v. Dunn (1987)
California v. Greenwood (1988)
Florida v. Riley (1989)
Police informants in jail cells Kuhlmann v. Wilson (1986)
Illinois v. Perkins (1990)
Arizona v. Fulminante (1991)
Computer error made by clerk Arizona v. Evans (1995)


    These exceptions mean that police don't need a warrant to conduct a search and seize evidence.  In practice, they often do try and obtain a warrant, or cover themselves, as the majority of cases do, with the consent exception, relying upon respect for authority.  You'd be surprised how many suspects simply assume they will get into trouble if they don't let the police in when they ask.  



    Arrest is a special type of seizure in which a person is seized or taken into custody.  The standard has been, and always will be, probable cause.  However, the Supreme Court allows this standard to be mixed with local procedures since sometimes an arrest is necessary before there's time to get a warrant.  Also, we're only talking about intrusive arrests, the kind that involve some degree of physical coercion or force used to deprive someone of their freedom of movement.  This generally means being handcuffed, placed in a transport vehicle, and taken to a police station.  Arrest does not refer to stops, commands to freeze, heated conversations, telephone calls, or any other situation where the person is (theoretically) free to leave.  The key element of arrest is custody.


    The probable cause restriction on arrest power in America is designed to prevent the police from rounding up "undesirables" and, in any event, judges have the last word on probable cause, not the police.  Unfortunately, what is probable cause to one judge might not be to another, as there are many ways of interpreting the Fourth Amendment.  The common sense approach is probably the dominant interpretation, and says that probable cause consists of a "substantial probability" that a crime has been or is being committed.      



    Once a person is in custody and it begins to appear as if the focus of the investigation is upon them as a particular suspect (often custody and focus are synonymous, sometimes they're not), they must be read aloud their Miranda rights (to remain silent; any statement will be used against them, an attorney may be present during questioning or be consulted; and if they cannot afford an attorney, one will be provided for them).  Miranda Law is usually referred to as "the marriage of the 5th and 6th Amendment."


    A violation of Miranda law will result in an immediate (and automatic) suppression of any evidence based on the defendant's spoken words, rendering useless whatever statements they made to the police and any use the police made with those statements. However, a violation of Miranda law, in itself, is not grounds for an acquittal nor a reversal of conviction. 


    Miranda warnings are "triggered", or apply if TWO elements are present: CUSTODY and INTERROGATION.  Both are more difficult to define than what might appear at first glance.  The general rule is that custody occurs whenever a suspect is placed in unfamiliar and hostile surroundings.  Interrogation inherently involves persuasion or pressure, the ultimate goal being verbal trickery to obtain a confession, or at least an admission (soft confession)..., anything that would implicate the suspect in criminal behavior.  The suspect must make a clear, unambiguous request for counsel (the Edwards rule), and the police must honor it (somewhat), and cease questioning. Clear and unambiguous means language stronger than "Maybe I should talk to a lawyer."  If after police cease questioning, the suspect himself re-initiates conversation, or further communication with police, then any incriminating statements made may be used against him.  There are a variety of other rules, listed below:


  • ATTORNEY WAIVERS (Moran v. Burbine 1985) If a suspect is talking to police after having waived his right to have an attorney present and the suspect's lawyer has called the police to indicate a desire to advise his client not to talk, the police are under no obligation to inform the suspect of his lawyer's wishes.
  • BOOKING PROCEDURES (Pennsylvania v. Muniz 1990) Miranda is not required if standard police procedures are being followed, specifically booking procedures, where a suspect is simply being fingerprinted and photographed.
  • DELAYED WARNINGS (Oregon v. Elstad 1985) If a suspect confesses right away prior to receiving Miranda warnings but is later given warnings at the police station and confesses, the initial statements may not be used, but the later confession can be used. The failure to give warnings right way does not invalidate later interrogations.
  • DERIVATIVE EVIDENCE (Michigan v. Tucker 1974) Applies if suspect has not been Mirandized and asserts an alibi defense in response to police questioning. If police check out the alibi, and it, or the witness leads from it, lead to incriminating information against the suspect, it can be used against them. The reliability of any witness's testimony is not affected by Miranda violations.
  • ILLEGAL SEARCH AND SEIZURE (New York v. Harris 1990) If the police unlawfully enter a home and illegally make an arrest, but then take the suspect to the police station, read him his rights, and he confesses, the illegal search and seizure doe not taint the subsequent legal confession.
  • IMPEACHMENT (Harris v. New York 1971) Impeachment is the in-trial process of destroying a witness' credibility. The law allows an illegally obtained confession to be admitted at trial if the defendant testifies on their own behalf. This is to show that the defendant committed perjury. Also, silence at the time of police interrogation is a presumption of guilt if the defendant later attempts a defense strategy of self-defense at trial. This is because if self-defense was the motive, it would have been reasonable for the defendant to tell the police about it.
  • INDEPENDENT EVIDENCE (Arizona v. Fulminante 1991) If an inmate is under threat of physical attack by other prisoners and a fellow inmate, in reality an undercover officer, promises to protect him in return for the truth, the confession is coerced because of the threat of physical attack, but the conviction need not be overturned if sufficient independent evidence supporting a guilty verdict is introduced.
  • PRIVATE SECURITY (U.S. v. Garlock 1994) Talking to a probation officer, a private detective (perhaps one hired by the victim's family), or any private law enforcement official does not involve Miranda at all. Even the most outrageous conduct of private actors cannot violate a suspect's 5th Amendment right against self-incrimination.
  • PUBLIC SAFETY (New York v. Quarles 1984) If police capture or chase somebody who has hid or discarded a gun or drugs somewhere where innocent members of the public might come across this contraband, the officers don't have to read Miranda in order to ask "Where is it?"
  • PURGED TAINT (Wong Sun v. U.S. 1963) A confession obtained following an unlawful arrest is admissible if the "taint" caused by the police illegality is somehow "purged". Usually applies in cases involving multiple questioning at different points in time; e.g., marathon interrogations with breaks, or (more commonly) the suspect coming back in voluntarily to continue answering questions after being released. The suspect's voluntariness to talk after a break in time "purges" the taint of previous police illegality.
  • RESUMED QUESTIONING (Michigan v. Mosley 1975) If a second officer a few hours later in a different room starts a new interrogation, the suspect does not have to be re-Mirandized, although something called the staleness doctrine will apply if a significant period of time has passed. Re-Mirandizing is required if there are two or more interrogations by different police agencies, state and federal, for example.
  • SURREPTITIOUS QUESTIONING (Illinois v. Perkins 1990) The Miranda rule and a suspect's 5th Amendment rights are not violated if undercover police or their informants are used to obtain incriminating testimony from a suspect.  The suspect's 6th Amendment rights are violated, however, if any of these techniques are used after formal charges have been filed. Miranda warnings are not required when suspect is unaware he is speaking to a law enforcement official.

About.com Civil Liberties Search & Seizure

ACLU Page on Racial Profiling
Article on Effective Search & Seizure

Lecture on Probable Cause

Miranda Law and Self-Incrimination

Nolo Press Guide to Arrest Law

Nolo Press Guide to Search & Seizure Law

Search and Seizure Law

Stop and Frisk Law

Bell, J. (Ed.) (2006). Police and Policing Law. Burlington, VT: Ashgate.
Cassell, P. and R. Fowles (1998) Handcuffing the Cops, 50 Stanford Law Review 1055-1069.
Creamer, S. (1980) The Law of Arrest, Search and Seizure. NY: Holt.
Klockars, C. (1991) Getting Around the Fourth Amendment in C. Klockars & S. Mastrofski, Thinking About Police. NY: McGraw-Hill.
Leo, R. (1992) From Coercion to Deception. Crime, Law & Social Change 18: 35-59.
McWhirter, D. (1994) Search, Seizure, and Privacy. Phoenix: Oryx Press.
Medalie, R. (1966) From Escobedo to Miranda. Washington DC: Lerner Law Books.
Schmalleger, F. (2001). Miranda Revisited. Upper Saddle River, NJ: Prentice Hall.
Tetu, P. (1995) Probable Cause: Between the Police Officer and the Magistrate. Springfield: Charles Thomas.
U.S. Dept. of Justice (1982). Effects of the Exclusionary Rule. Washington D.C.: GPO.

Last updated: July 02, 2006
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T.  (Date of Last Update at bottom of page). In Part of web cited (Windows name for file at top of browser), MegaLinks in Criminal Justice. Retrieved from http://www.apsu.edu/oconnort/rest of URL accessed on today's date.


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