Articles Posted in Constitutional Rights

A law enforcement officer can perform a temporary investigative detention of an individual only when the officer can articulate specific facts, which considered in light of the circumstances, provides an objective reason to believe the individual is engaged, or about to engage, in criminal activity.  (A detention occurs when an individual does not feel that he or she is free to leave, as contrasted with a consensual police encounter in which a person can just walk away.)

Note that the officer’s reasons for believing a detention is warranted is an objective standard—the officer’s assessment must be such that a law enforcement officer presented with the same circumstances would reasonably suspect possible criminal activity. Thus, an officer who detained an individual on the suspicion that the individual was engaged in criminal activity simply because that individual is walking in a high crime area would not be objectively reasonable. But if that individual is also observed by the officer in what appears to be a drug transaction, a detention might be objectively reasonable.

Lawful detentions have often been a bone of contention between defense attorneys and the prosecution, and the courts have often taken a fairly hard line on the subject. For example, the courts have held that a lawful detention can be found simply on an individual’s attire, demeanor, evasiveness and other ambiguous circumstances. Whether a detention is lawful or not is important because a lawful detention often leads to a search of and if the officer discovers a crime (for example, find drugs or a weapon on the individual), any subsequent charges can be dismissed if the defendant’s criminal defense attorney files a successful motion to suppress evidence on grounds that the detention was unlawful.

The Fourth Amendment provides that law enforcement cannot conduct a search of property or person without a valid warrant. Any warrantless search is unlawful and should law enforcement arrest you pursuant to that search, the arrest itself becomes unlawful.

However, there are exceptions where a warrantless search is permitted under the law. One of those exceptions is consent to the search. As I have discussed elsewhere, you are not required under the law to consent to a search, and it is usually a good idea not to. Unfortunately, consent searches are quite frequent because people are often frightened and intimidated by the officer’s request. But even a consent search may be unlawful if consent is not voluntarily given.

If you consent to a search and you get arrested due to contraband found in the search, the arrest is presumed lawful because you consented to the search. But what if you consented because the police “strong-armed” you into allowing the search or threatened you or acquired your consent by deception? Whether the consent is voluntary or not is oftentimes difficult to determine, but it is the prosecutions burden to show in light of the circumstances that the consent was voluntarily given.

You might recall a news item from 2021 when a laser pointer was aimed at a Huntington Beach Police Department helicopter investigating a fatal hit and run accident. These types of dangerous pranks are not new to police department arial surveillance and investigations. In this case, the police were able to capture an image of the man pointing the laser by utilizing the helicopter’s thermal camera. The officers in the helicopter called in for an on-the-ground police response to investigate.

Patrol officers responded to the apartment building where the image of the laser pointing suspect was located and identified a man they believed to be the suspect standing on a balcony of a second floor apartment. When the police contacted a resident inside that apartment, a woman, they determined that she lived there with her boyfriend, who police believed was the suspect. After that encounter, the suspect appeared and stepped outside the apartment onto the landing. The officers led the suspect downstairs where they spoke with the suspect. The officers detained the suspect and handcuffed him to a mailbox.

While speaking with the suspect, another officer went back to the apartment and asked the suspect’s girlfriend if they could search the apartment for a laser pointer. She consented. As she was signing the consent form, the suspect yelled up to his girlfriend to not let the police in or talk to them. He also yelled that she should talk to the police outside There was no dispute that the officers and the suspect’s girlfriend heard the suspect.  The officers searched the apartment and found a laser pointer with the suspect’s name etched on it. The suspect was arrested.

Everyone is familiar with the term “Miranda rights.” This right derives from a 1966 U.S. Supreme Court case, Miranda v. Arizona. The Miranda court held that the Fifth Amendment to the U.S. Constitution, which protects someone accused of a crime from self-incrimination, includes protections for suspects who have been arrested for a crime. Specifically, the court held that when a suspect is arrested, the suspect must be advised that:

• The suspect had a right to remain silent,
• anything the suspect said could be used against him or her in a court of law, and

You are hanging out in a park with a couple of friends. Two police officers show up and ask you and your friends what you are doing in the park. You walk away, which is within your rights.  If you do attempt to walk away and the officers prevent you from doing so, you are legally detained. Or you don’t walk away because you believe you are not free to walk away due to an articulable intimidating presence of the officers. In either case, you are being detained.

You may ask the officers: “Am I being detained?” and, indeed, you should. It is important to establish whether you are detained on not. (If the officer says you are not being detained, then you are free to walk away.) The reason it is important to establish whether you are detained or not is because of what may come next. If you end up getting arrested subsequent to the detention, you may be able to suppress the evidence if the court determines that the detention was unlawful.

You find out from the officers that they received a report of suspicious activity in the park and that you and your friends fit the description of the individuals who are suspicious. In this case, or under other circumstances where an officer can establish reasonable suspicion that you are engaged in or about to engage in criminal activity, the officer can legally detain you for a brief investigation. This is known as a Terry stop, named after the Supreme Court case, Terry v. Ohio (1968) 392 U.S. 1., where that court held that an officer may conduct a brief investigative detention when there is reasonable suspicion that the individual stopped is armed or where the officer suspects criminal activity is afoot.

No doubt you have heard the news that Alec Baldwin is to be charged with involuntary manslaughter after fatally shooting a cinematographer on set. I won’t recount the alleged series of events leading up to this charge as most everyone is familiar with the story. What is important to know is that Mr. Baldwin was handed the gun on set and according to Mr. Baldwin believed it was not loaded with live bullets. In other words, according to Mr. Baldwin, the shooting was, though tragic, an innocent mistake.

After the incident, Mr. Baldwin was questioned by detectives. He was cooperative and eager to help the investigation, voluntarily answering their questions.  Before his sit down with the detectives, he was read his rights, which included the right to remain silent, his right to have an attorney present, and the admonition that anything he told the detectives could be used against him in a court of law. Mr. Baldwin confirmed with the detectives that he was not charged with any crime and then proceeded to “spill the beans.”

He told all because he wanted to help and he honestly believed he was not guilty of any crime, since the shooting was an obvious mistake. As Mr. Baldwin and the detectives knew, guns are used all the time on movie sets, there are special experts on set, called armorers, whose job it is to make sure the guns are either not loaded or loaded with blanks. Mr. Baldwin explained to the detectives that when the armorer handed him the gun, she told him it was “safe” but asked him if he wanted her to double check. Having never had a problem with a “hot” gun on set before, and this being routine, Mr. Baldwin told the armorer, “I’m good.” This seemingly innocent statement to the detectives is what led to Mr. Baldwin being charged with involuntary manslaughter: this statement indicated that Mr. Baldwin was criminally negligent because he had a responsibility to check the gun before firing it on set.

A person convicted by a judge or jury of a misdemeanor or a felony has a right to appeal that conviction. However, it is not enough to be unhappy with the verdict or think the trial was unfair, there are specific grounds upon which the appeal may be made.

Appeals must be grounded on a legal error made during trial. Common examples include:

• The prosecution withheld exculpatory evidence.

Did you see the 2002 movie Minority Report? Back then, it was science fiction; now it’s getting close to reality. In Minority Report, police departments had “PreCrime” units where “precogs” (strange psychic bodies that lived in liquid pools) were able to predict when a person was going to commit a crime. Based on this knowledge, the police would arrest the individual before they had the chance to commit the crime.

Today, police departments are utilizing predictive policing technology to pre-empt criminal activity. They don’t employ precogs, but they do use algorithms. And they aren’t arresting people before they commit a crime – at least not yet, but they do plan policing day-by-day based on software predictions. Utilizing algorithms, the Los Angeles Police Department’s program PredPol (the title itself sounds dystopian) identifies 150 square-meter areas where certain types of crime are more likely to occur on any given day. The PredPol technology got its start when then LAPD Chief, Bill Bratton, went to UCLA researchers seeking a way to use the historical data compiled by the LAPD to pre-emptively deploy the police force wherever crime was likely to occur.  Using the PredPol algorithms the LAPD sends units to patrol these “hotspots” based on the predictions.

This is not a matter of just beefing up the police force in high-crime areas, it’s way beyond that. Data is continuously fed into the model resulting in ever-changing predictions. The algorithms predict the highest risk areas for any particular crime on any particular day and at any particular time, thereby theoretically (and perhaps factually) stopping the crime before it happens, or at least being there when it does.