Validity of a Search Warrant by Law Enforcement
1. Discuss when a search warrant is needed by law enforcement. While there are many situation where a search warrant is required, how an officer determines the need for one can be broken down into some simple questions. “Can they get a written consent to search and seize”? Are the fruits or tools of a crime outside of the immediate possession of the person being suspected or who is in custody? Well these are just a few way to gain a good determination for the need. 2. Discus what law enforcement must demonstrate to a judge to have a search warrant issue. According to Coolidge v. Hampshire, 403 U.S. 443 (1971), the officer(s) requesting the warrant need to present the probable cause and how they believe a search is justified or needed in the present investigation. It must also describe in detail the place(s) the officer(s) will search and the item(s) that they are looking for to seize. I have been part of more than a few within the Air Force Military Police and I can say that it can also depend upon the Magistrate who you are requesting the warrant through. However all the Magistrates I have had contact with were very particular about the details of the search in regards to the items that would be searched for or seized. 3. Discuss the various exceptions to the search warrant requirement. Please include examples of each in your response. There are more than just a few exceptions to search warrants, one of them I had used as an example in this week’s other forum. And that is “The “murder scene exception” created by the Arizona Supreme Court to the warrant requirement is inconsistent with the Fourth and Fourteenth Amendments, and the warrantless search of petitioner’s apartment was not constitutionally permissible simply (School, 1978)because a homicide had occurred there.” Other examples include Exigent Circumstances, Plain View (which I also talk about in the other forum) and Consent. Consent is the easiest of the exceptions because, if a suspect gives an officer permission verbally or written (preferred) than the search is now legal however the courts will scrutinize any other number of issues when receiving individual consent such as but not limited to the individuals mental state, intoxication/impairment, length of detention or whether the consent was cohered or of free will. Then the last exception I will use is Plain View the plain view doctrine allows officers to seize evidence discovered while in public places or lawfully inside places of reasonable expectation of privacy (Ritacco et al., 2010). Acevedo, C. v. (1991). U.S. Supreme Court California v. Acevedo, 500 U.S. 565 (1991). Justia US Supreme Court. Assignment 5 FindLaw’s United States Supreme Court case and opinions. (n.d.). Retrieved from https://caselaw.findlaw.com/us-supreme-court/480/321.html Ritacco, P., Ainley, G., Anderson, K., Barnard, B. A., Basselman, J., Cauthen, B., Caldbeck, T. K.,….Phinizy, J. (2010). Legal Division Handbook. Federal Law Enforcement Training Center. School, C. L. (1978). 437 U.S. 385 Mincey v. Arizona (No. 77-5353) . Legal Information Institue. 1. Discuss the difference between an arrest and a custodial interrogation. When must Miranda be given to an individual? 2. Discuss how the court determines if a confession should be admissible or not. What does the court look for to determine if a confession is voluntarily given? 3. Discuss when an individual has the right to counsel. Is this right absolute? What other safeguards does the Sixth Amendment afford a criminal defendant? An arrest is where a suspected perpetrator has been placed under custody by the police, and the person’s freedom of movement has been restrained. A person is not only detained when under arrest, but also not free to leave. To arrest an individual, law enforcement officers need probable cause. Custodial Interrogation is the questioning of a detained person by the police in connection with a criminal investigation. Miranda warnings must be given to the arrestee before custodial interrogation begins. If a law enforcement officer fails to read individuals their Miranda rights prior to custodial interrogation, any confessions or information obtained during the questioning cannot be used against the arrestee in court (Free Advise Legal, n.d.) Confessions to crimes that are coerced, or involuntary, are not admissible against defendants in criminal cases, even though they may be true. In order to protect defendants from the pressures in police questioning, courts have required that officers inform defendants of their right to remain silent and right to have an attorney present during questioning. To determine if a confession is voluntarily given, the court will examine police conduct and circumstances of the interrogation. i.e., were there threats, physical force, coercion. They also will consider special facts of the accused such as age, mental state, and if Miranda rights were given prior to interrogation (LII, n.d.). Under the Sixth Amendment and In Gideon v Wainwright, 372 U.S. 335 (1963), there is an unquestionable right to retain counsel for the course of a prosecution. When a defendant cannot afford counsel, one will be appointed by the court to represent him, at the government’s expense. The right to counsel is the most known right guaranteed by the Sixth Amendment. There are other rights guaranteed to individuals under this amendment (FindLaw, n.d.). These rights include: A trial by a jury. The right to have the jury hear and see all witnesses and evidence. The right to be present during the trial. The right to confront and/or cross-examine the witnesses testifying against them. The right to call witnesses and to compel the witnesses to appear on your behalf. The right to testify on their behalf should they choose to do so. The right to refuse to testify against oneself. The right to have the state prove its case against them beyond a reasonable doubt. References FindLaw (n.d.). Rights guaranteed by the sixth amendment, http://criminal.findlaw.com/criminal-rights/what-the. Free Advise Legal (n.d.). What is custodial interrogation? http://criminal-law.freeadvice.com/criminal-law/arrests Legal Information Institute (n.d.). U.S. code 3501. Admissibility of confessions. http://www.law.cornell.edu/uscode/text/18/3501 Assignment 6 The prosecution will offer a plea agreement to the defendant if they realize that their case may not be very strong, and they want to avoid the possibility of losing. The prosecutors job is to get as many cases through the system as quickly as possible while still getting convictions. Prosecutors “negotiate” pleas to push cases through the system faster, even when the case may be strong enough to go to trial. They may try to convince the defendant it is in their best interest to accept a deal on their terms or risk being charged with a more serious offense and face harsher penalties if found guilty at trial (HG.Org., n.d.). I think a defendant could enter a plea agreement admitting to a lessor crime than charged, in order to receive a reduced sentence, even though he is innocent. A plea agreement is a conviction, it can affect the defendants ability to get a job, and he may be put on formal probation after serving sentence. Sometimes the outcome of the case is withheld so the defendant is never considered to have been “convicted” for that offense, even though he has served a sentence and/or on probation. A plea bargain forfeits the right to appeal issues that might exist in your case. And a plea bargain may be used against an individual in civil proceedings, such as in a divorce or child custody action (HG.ORG., n.d.). Some argue that plea bargains are too coercive and undermine important constitutional rights. Plea bargaining requires defendants to waive three rights protected by the Fifth and Sixth Amendments: 1) the right to a jury trial, 2) the right against self-incrimination, and 3) the right to confront witnesses. A confession made in a plea bargain must be voluntary, and a waiver form must be signed by the defendant (LII, n.d.). In a jury trial, 6 or 12 jurors hears and sees all evidence and decides the verdict in a criminal case. A bench trial is decided by a judge alone, without a jury present. Civil cases can have either a jury trial or a bench trial. Bench trials are typically traffic cases, civil disputes, certain juvenile offenses, divorces, child custody cases, foreclosures, injunctions, and money awards for injuries or damages (Podolsky, 2017). Some of the advantages of a bench trial are: you would probably be better off to have your case heard in front of a judge and not a jury if you are going to represent yourself, as the court rules and procedures may be more informal. A bench trial is faster. If the case is very technical in terms of the law and the legal defense jurors may get bored or confused, and a bench trial is better. Judges in a bench trial may view some of the more sensational evidence without emotion more than a jury (Podolsky, 2017). Some of the disadvantages of a bench trial are: it is the judge, alone, whom decides your case, and a defendant doesn’t want to put their fate in the hands of just one person. The judge will know about suppressed evidence, where jurors are not made aware of it. And, the judge will learn about the defendant’s prior criminal record while jurors will not know of it (Podolsky, 2017). Some of the advantages of a jury trial are jurors are often more swayed by emotions, like sympathy, than by hard evidence. The prosecution carries the burden of proving all elements of a crime committed beyond a reasonable doubt. And, if you lose the case, you have more grounds on which to appeal (Podolsky, 2017). Some of the disadvantages of a jury trial are the people on a jury do not generally have a legal background, and they may not understand complex legal documents and/or arguments, or the scope of forensic evidence. Every juror may have their own personal biases that affect their decision-making. Jurors can be influenced by impressive lawyers, or the judge. And, jurors do not need to reason their decision, individually or collectively (Podolsky, 2017). I feel that prosecutors are given too much discretion in offering plea agreements. Very few criminal cases come to trial with a judge and jury deciding guilt or innocence. An estimated 94 to 97 percent of cases end in a negotiated plea bargain, in which the prosecutor retains much of the negotiating power. I feel that sometimes an innocent individual may be coerced and/or intimidated into entering a plea bargain to receive a lighter sentence as opposed to facing a trial where they may be found guilty and receive a much larger sentence. Under American law, prosecuting attorneys have nearly absolute power to choose whether or not to bring criminal charges and what charges to bring. They have the power to decide who will stand trial and for what crimes. Most prosecutors use their discretion ethically, but it can also be misused to bring criminal charges, or to refuse to bring them, based on their own personal political beliefs (SPLC, 2003). References HG.Org. (n.d.). When should you accept a plea bargain in your criminal case. http://www.hg.org/legal-articles/when-should-you-accept Legal Information Institute (n.d.). Plea bargain. http://www.law.cornell.edu/wex/plea_bargain Podolsky, B. (2017). Jury vs. bench trials: The advantages and disadvantages of both. http://brettpodolsky.com/jury/jury-vs-bench-trials-the Southern Poverty Law Center (2003). Are there limits to prosecutorial discretion? http://www.splcenter.org/fighting-hate/intelligence. Assignment 7 Sentencing is a problematic component of the criminal law because it requires a judge to balance complex, abstract, and every so often competing considerations with a view to realizing the elusive and equally abstract notion of justice. In balancing the complex, abstract, and every so often competing considerations, judges make decisions are highly discretionary (Yang, 2015). Hence, judges are given too much discretion. Some of the factors a judge looks at when determining an appropriate sentence include the defendant’s past criminal record, age, and sophistication; the circumstances under which the crime was committed; and whether the defendant genuinely feels remorse. Other factors encompass the administrative context of the courts (caseload pressure, presentence report, sentencing guidelines or judicial rules, and attitudes & values of judges. Often, these factors depend on the facts proven to a judge at a sentencing hearing (Lawrence, 2015; Yang, 2015). I believe that the time should fit the crime. All we want is a criminal justice system where the punishment fits the crime; real offenders go to jail, and those who patently are not criminals are treated accordingly (Lawrence, 2015). There are more than a few types of a sentence a judge may order, such as indeterminate sentencing whereby sentencing is based on ranges to offenses. For example, courts have broad discretion to decide whether to impose community supervision or a prison term, but the problem with this sentencing is that a sentence’s length is based on how it best fits the individual case and offender (Yang, 2015). Determinate sentencing is another type of sentencing that is characterized by fixed sentence lengths. This minimizes the judge’s discretion. Such sentences may be community or prison terms, and prison sentences usually include an additional term of supervision in the community. Structured sentencing is sometimes used as an added structured component to the primary sentencing system. It helps provide judges guidance, and are designed to increase certainty and consistency across jurisdictions for similar offenses and offenders. However, structured sentencing can be time-consuming (Lawrence, 2015). Mandatory minimum sentences serve a real purpose, especially by deterring some serious offenses (Warner, Spiranovic, Freiberg, & Davis, 2018). These sentence policies may affect broad categories of crimes, including repeat offenders and many drug crimes. Some target the most dangerous, repeat offenders, every so often including those who commit violent and sex crimes, offenses committed while possessing or using deadly weapons, certain drug crimes, and crimes involving children, elderly or other vulnerable victims. Thus, the most effective way to combat the surge of individuals in prison is to engage in reforming mandatory minimum sentences since unfavorable mandatory minimum sentences deter offenders (Lawrence, 2015; Warner et al., 2018). References Lawrence, A. (2015, June). Making sense of sentencing: State systems and policies. Washington, DC: National Conference of State Legislatures. Warner, K., Spiranovic, C., Freiberg, A., & Davis, J. (2018). Mandatory sentencing? Use [with] discretion. Alternative Law Journal, 43(4), 289-294. Yang, C. S. (2015). Free at last? Judicial discretion and racial disparities in federal sentencing. The Journal of Legal Studies, 44(1), 75-111 Assignment 8 An important aspect of the criminal process that I found most interesting in this course is plea bargaining. It was interesting to know that a prosecutor can offer a defendant a plea agreement if it is determined that the defendant can avoid the time as well as the cost of defending themselves at trial, besides minimizing the risk of harsher punishment. A prosecutor can also offer a plea bargain if he/she would like to save the time and expense of a lengthy trial, especially when both sides are to be spared of the uncertainty of going to trial (Kutateladze, Andiloro, & Johnson, 2016). One area of the criminal process that I think needs more study for me to fully understand relates to sentencing. It is a problematic component of the criminal law because it requires a judge to balance complex, abstract, and every so often competing considerations with a view to realizing the elusive and equally abstract notion of justice. In balancing the complex, abstract, and every so often competing considerations, judges make decisions are highly discretionary (Yang, 2015). My next step at APUS is to enroll for a master’s degree in public administration program. I have been taking my last undergraduate classes and I intend to start my master’s program by August. This course has not changed my mind about my master’s program. References Kutateladze, B. L., & Lawson, V. Z. (2018). Is a plea really a bargain? An analysis of plea and trial dispositions in New York City. Crime & Delinquency, 64(7), 856-887. Yang, C. S. (2015). Free at last? Judicial discretion and racial disparities in federal sentencing. The Journal of Legal Studies, 44(1), 75-111.