One of the hallmarks of the US criminal law is the extent of protections afforded to criminal defendants. While a large body of criminal procedure has been developed and refined through case law, the US Constitution lays the foundation for procedural protections that are guaranteed to a criminal defendant. Law enforcement at all levels are required to adhere to such protections and guarantees. The reason that such projections and safeguards are so important for a criminal defendant is to prevent the government from abusing its power. In most cases, a criminal defendant will have considerably fewer resources and means to effectively defend him or herself against the government. Because the government is in a superior position to most defendants, it is paramount that government authority and power be kept in check.
It can be argued that police and other government officials are given too much unchecked power. Many government officials and personnel are given wide discretion in order to be able to carry out their official duties without fear of reprisal or civil liability. As a result, judges, police officers, prosecutors, and other government officials usually receive some kind of immunity. This means that if the public official is acting in his or her official capacity, they cannot be sued for any civil damages that may flow as a consequence of their discretionary decision-making. For example, judges are given absolute immunity (Chemerinsky, 2008, p. 474). When government officials acting in their official capacity injure plaintiffs, immunity is often a significant barrier to injured plaintiffs receiving compensation.
There is definite tension between protecting a defendant’s rights and giving the government enough discretion and latitude to effectively do their jobs. As society becomes more complex, more and more exceptions and caveats to traditional rules are carved out. Although police are still bound to work within the constraints of the US constitution, the Supreme Court has expressed a willingness to recognize additional exceptions on the government’s behalf. The myriad of exceptions may be troubling to many. The picture that emerges makes clear that government officials are generally given wide discretion when carrying out their official responsibilities and duties, and courts are hesitant to second-guess such executive and legislative decisions.
Discussion
The Fourth Amendment to the US Constitution protections persons from “unreasonable searches and seizures” and provides that no search warrant shall be issued unless there is “probable cause” (U.S. Constitution. amend. IV). The original understanding of the Fourth Amendment was to protect persons and property from physical intrusion. An early Supreme Court opinion held that a physical trespass was necessary in order for the protections of the Fourth Amendment to apply (Olmstead v. United States, 1928). Such an interpretation meant that only a physical intrusion or trespass of a person or property would fall within the ambit of protection.
A later Supreme Court case recognized the limitations of interpreting the Fourth Amendment to only apply to physical trespass. In Katz v. United States, the Supreme Court opined that a “search” included electronic surveillance and the recording of telephone conversations (Katz v. United States, 1967). The decision had far-reaching implications. A physical trespass was no longer needed to fall within the protections of the Fourth Amendment. The Katz decision expanded the concept of the Fourth Amendment to protect persons when there was a “reasonable expectation of privacy” (Katz v. United States, 1967, p. 360).
As a general matter, the government is required to obtain a warrant before a search can be conducted. This rule, however, is riddled with numerous exceptions. The first and most obvious exception is when the police conduct a search incident to a lawful arrest. This exception was recognized in the Supreme Court decision Chimel v. California. The Court held that incident to an arrest, the police could search the immediate area within the suspect’s reach without a warrant (Chimel v. California, 1969). Thus, when police make a lawful arrest of someone, they are permitted to search the area within the person’s immediate reach absent a warrant.
Another common exception to the warrant requirement is the plain view exception. The plain view exception allows an officer to conduct a warrantless search for the seizure of evidence that is in plain view or plain sight (Horton v. California, 1990). This exception is perhaps the most obvious. For instance, if an officer pulls a driver over for speeding and sees illicit drug paraphernalia in plain view, the officer is not required to obtain a warrant to seize such evidence. In the modern digital age of computers and cell phones, the plain view doctrine has limited application.
Perhaps one of the most controversial exception is the “stop and frisk” exception. This exception allows police to stop and frisk a suspect, without probable cause, if the police officer reasonable suspects that the suspect is in the commission of a crime and might be armed with a dangerous weapon (Terry v. Ohio, 1968). The type of search that is permitted is a superficial search of the person’s outer clothing for weapons. What is troubling about this exception is that a police “hunch” that a suspect might be carrying a weapon or dangerous is sufficient for the officer to conduct such a search. The case also set new precedent and opened the door for “stop and frisk” searches in other contexts.
What modern technologies like laptops, cell phones, ipads, and GPS make lives easier, they raise some interesting questions regarding the scope of Fourth Amendment protection. When writing the Fourth Amendment, the Framers of the Constitution did not envision how the Amendment would be applied to such technology. The law is conservative in nature and lags far behind the intricacies and developments of current society. It often takes many years for the law to catch up with the times. Until very recently, the Supreme Court did not address the constitutionality of cell phone searches.
The difficulty with cell phones is that there is such a voluminous amount of information on them. Particularly with Smartphones, which almost everyone has these days, there is a wealth of personal and private information on these electronic devices. Conducting a search of a cell phone is much different from conducting a regular search of an item found on a person, such as a wallet or a purse. Because cell phones hold so much more personal information than other tangible items, they are more deserving of Fourth Amendment protection than other personal items might be.
The question of whether police can perform a warrantless search of a suspect’s cell phone came to a head in the 2014 Supreme Court case Riley v. California (Riley v. California, 2014). The general rule is that police can conduct a warrantless search incident to a lawful arrest of the immediate area surrounding the suspect. The rationale for this exception is to ensure officer safety and to enable officers to detect and discover any weapons that may be on the suspect. In Riley, however, the Court limited the application of this exception to cell phones. The Court held that police must obtain a warrant before searching the contents of an arrested suspect’s phone. Recognizing that the type of information police could potentially obtain from searching a cell phone is much vaster than searching of other items, the Riley decision protects a suspect’s regarding cell phone contents.
A vexing issue that often arises in conjunction with allegations of police brutality and misconduct is an officer’s use of deadly force. The Supreme Court addressed the question of the constitutionality of the use of deadly force in the case Tennessee v. Garner (Tennessee v. Garner, 1985). In Garner, a police officer was pursuing a fleeing suspect on foot. The suspect climbed a fence, and the officer, believing the suspect would escape, shot the suspect in the back of the head. A few hours later, the suspect died from the injuries. The Court held that in order to use deadly force, the officer must have probable cause that the suspect “poses a significant threat of death or serious physical injury to the officer or others” (Tennessee v. Garner, 1985). Absent such danger, an officer is not constitutionally permitted to use deadly force on a fleeing suspect.
The law seeks to value human life whenever possible. One of the main reasons that many opponents argue vehemently against the death penalty is that death is final. If the government makes a mistake or executes the wrong man, there is no turning back. Similarly, an officer that uses deadly force will most likely result in a person’s death. Requiring more than just an officer’s hunch or suspicion demands that officers only use deadly force when the safety of themselves or others is in serious danger.
No great cop show is complete without the cops making a theatrical arrest, handcuffing a suspect, and telling the suspect “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You also have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” While this recitation adds to the drama of television, police are constitutionally required to inform suspects of their Miranda rights. The Fifth Amendment of the US Constitution provides for the privilege against self-incrimination (U.S. Constitution. amend. V). This means that in a criminal case, the prosecution is required to prove all charges against the defendant and the defendant is in no way obligated to assist or cooperate with the government.
Miranda acts as an exclusionary rule in criminal procedure. The impact of Miranda is that if a suspect is not given proper Miranda warnings, any statements made to police during the interrogation are excluded from evidence (Cammack, 2010, p. 632). If a suspect is not given Miranda warnings, this does not mean the criminal charges against them are dropped or thrown out. The case proceeds forward as normal. The government, however, is prohibited from any incriminating statements that a suspect may have made in the course of the interrogation. Miranda, therefore, acts to exclude incriminating evidence that police may have obtained when a suspect was not fully informed of his or her constitutional rights.
Like all rules of law, Miranda has become riddled with multiple exceptions. Although police are generally required to inform suspects of their Miranda rights, this rule is not firm and absolute. The exceptions recognize the government’s interest in protecting public safety over a defendant’s rights. Much of police work depends on spur-of-the-moment judgments and discretion, and courts have been receptive to the government’s need for certain exceptions.
The big exception to the Miranda warning is the public safety exception. This exception was derived from the Supreme Court case New York v. Quarles. In Quarles, a police officer apprehended a suspected rapist in a public grocery store. When the officer made the arrest, he found an empty holster on the suspect’s person. The officer asked the suspect the location of the gun, and suspect indicated to the officer where the gun was. The officer never informed the suspect of his Miranda rights. The suspect later argued that his statement to the officer was inadmissible.
The Supreme Court held that in this case, the public safety exception applied and the officer was not required to give the suspect a Miranda warning. The rationale for allowing such an exception is to enable officers to ask questions that are “reasonable prompted by a concern for the public safety” (Kinports, 2011, p. 438). In weighing the government’s interest in questioning suspects to safeguard public safety and a suspect’s interest in being informed of Miranda rights, the Court sided with the government. The public safety exception outlined in Quarles has been extended to apply to suspects in high profile terrorist cases (Darmer, 2002, p. 272).
The takeaway from the Fourth and Fifth Amendment protections is that while defendants enjoy some protection, prevailing government interests often overcome such protections. The nature of police work requires giving officers wide discretion to make quick judgments and decisions on the spot. Because of the delicate nature of police work, officers are granted qualified immunity. Police officers have been the recipients of qualified immunity since the 1967 Supreme Court case Pierson v. Ray.
When a state government actor has violated a person’s constitutional rights, the aggrieved person can bring suit under 42 U.S.C. § 1983 for damages (Hassel, 2009, p. 117). A defendant is entitled to such qualified immunity of the defendant’s actions were objectively reasonable (Hassel, 2009, p. 117). For a plaintiff to prevail in a damages suit against a defendant, it is an extremely high threshold. Most suits brought by plaintiffs against defendants who enjoy qualified immunity are unsuccessful. Although immunity affords police extensive protection against the fear or threat of a civil lawsuit and liability for damages, the public’s interest in accountability and responsibility must be considered.
The good faith immunity defense is highly favorable to the government defendant. As long as the police officer reasonably and believed in good faith that his conduct was within the constitutional boundaries, immunity would be given (Hassel, 2009, p. 123). The good faith immunity defense contains is both an objective and subjective aspect of the defense (Harlow v. Fitzgerald, 1982, p. 815). While no Supreme Court case has ruled precisely on the matter, many lower courts grant good faith immunity to police officers alleged to have engaged in excessive force (Stoelting, 1989, p. 258)
Conclusion
As the government expands and augments, it appears that individual civil liberties take a backseat to government objectives. Bedrock criminal procedure rules are often molded and tailored to accommodate the government’s particular needs. Particularly in the aftermath of 9/11, the government seems to be increasingly involved in our everyday lives. While a defendant still has rights, these rights do not always ensure a level playing field. The intricacies of the Fourth and Fifth Amendment have reached the point where few lay persons would be able to comprehend or understand what precisely their rights are.
While personal guarantees against abusive power under the Fourth and Fifth Amendments have slowly been eroding, government immunity remains robust. Arguably, more limited government immunity would ensure greater accountability and responsibility for one’s actions. Allowing injured plaintiffs to seek redress against government defendants who caused the harm would be one way to give some power back to the people.
References
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Chemerinsky, E. (2008). Absolute immunity: General principles and recent
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Chimel v. California, 395 U.S. 752 (1969).
Darmer, M.K.B. (2002). Lessons from the lindh case: Public safety and the fifth
amendment. Brooklyn Law Review, 241-287.
Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Hassel, D. (2009). Excessive reasonableness. Indiana Law Review, 117-142.
Horton v. California, 496 U.S. 128 (1990).
Katz v. United States, 389 U.S. 347 (1967).
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Criminal Law and Criminology, 375-440.
New York v. Quarles, 467 U.S. 649 (1984).
Olmstead v. United States, 277 U.S. 438 (1928).
Pierson v. Ray, 386 U.S. 547 (1967).
Riley v. California, 134 S.Ct. 2473 (2014).
Stoelting, D. P. (1998). Qualified immunity for law enforcement officials in section 1983
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Tennessee v. Garner, 471 U.S. 1 (1985).
Terry v. Ohio, 392 U.S. 1 (1968).
U.S. Constitution. Amend. IV.
U.S. Constitution. Amend. V.
