CHAPTER 1 NOTES

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èCriminal Procedure governs the conduct of police, prosecutors, defense attorneys, and courts in the way in which they investigate, prosecute, and sentence citizens.

èSpecifically in regards to the police, criminal procedure governs much of their conduct but not all of it.

àOften the routine interactions (read: minus suspicion of criminal activity) between police and citizens are not regulated by law

èThe police devote roughly 70% of their time to “non-criminal enforcement” matters

            à”Community Caretaker” Functions

à”Any lawful acts that are inherent in the duty of the peace officer to serve and protect the public” (ORS § 133.033; pg. 4 in text)

àThis gives the police the right to enter premises or stop traffic to prevent harm to person or property, treat injured or ill persons, and/or locate missing persons.

èTo serve and protect

State v Michael Dube (1995) 655 A.2d 338

àDefendant (Dube) appeals his conviction of endangering the welfare of a child

àDefendant claims that the trial court erred in dismissing his motion to suppress evidence that Dube claims was obtained in violation of the 4^th Amendment’s protection against unreasonable searches and seizures

àAppellate court vacates the lower the court’s Judgment, finding that the police’s continued search without a warrant was violative of the 4^th Amendment.

àTwo police officers responded to a call from the custodian of an apartment building

àThe custodian needed to perform emergency maintenance on the Defendant’s apartment (who was not home) and wanted the police to accompany him, “to verify that he was only dealing with the emergency”

àOnce in the apartment, the police were struck by the “incredible smell of urine and feces” and saw that urine and feces were littered all through the house

àNOTE: the officers did not need to move or adjust anything in the apartment to see the unsanitary conditions of the apartment; the observations were made with their “natural senses”

àOne officer called the Police Department to request a Department of Human Services caseworker and for an officer to bring a camera to the apartment

àThe custodian finished his maintenance and waited out on the sidewalk while the police took photographs of the feces, followed by the DHS caseworkers touring the apartment

àWhen the Defendant returned home, he was charged with endangering the welfare of a child

èArguments for Appeal

1)                  Defendant argues that the initial entry into the apartment by the police was unlawful and violative of the 4^th Amendment’s protection against unreasonable searches

a.       Court dismisses this argument stating that the custodian had a statutory right to enter the apartment to fix the emergency and because the officers were assisting the custodian in a “community caretaking” capacity, their presence in the apartment in the apartment was justified

b.      Court points out also that because the officers’ observations were strictly visual and “natural”, their presence with the custodian was lawful

2)                  Defendant argues that even if the initial entry was lawful, the officer’s continued presence in the apartment became unlawful

a.       The court agrees with this

b.      The officers’ continued presence in the apartment after the repairs were finished, was unlawful

c.       The officers needed to leave the apartment and get a warrant before conducting any more investigation

èIf one assumes that in the absence of a search warrant, their must be a special justification for entering a premises, the court’s ruling becomes much clearer.  The special justification that the officers had was to assist the custodian in the repairs.  Once that special justification ended, the default requirement (a warrant) returned.

State v Michael Lovegren (2002) 51 P.3d 471

àDefendant (Lovegren) appeals his conviction for driving under the influence

àLovegren argues that his motion to suppress the evidence obtained when he was “stopped”, was improperly denied by the District Court

àCourt upholds District Court decision

àAt 3:05 AM, while on patrol, Officer Hofer noticed a car pulled off the side of the highway with the motor still running.

àAs Hofer approached the car, he noticed Defendant in the driver’s seat, seemingly asleep.

àHofer failed to awaken the Defendant by knocking on the window, so he opened the door, which awakened Lovegren who blurted out that he had been drinking

àThat statement coupled with the smell of alcohol and Defendant’s bloodshot eyes, resulted in Hofer requiring Lovegren to complete field sobriety tests which he failed

àAfter failing, Lovegren was transported to the police station where a breathalyzer test was administered to him, which read: 0.115.

àDefendant was Mirandized and charged with driving under the influence of alcohol

àDefendant argues that the investigative stop performed by Officer Hofer was not justified because Hofer “did not have a particularized suspicion…[that there was criminal activity]”

àCourt determined that Officer Hofer did not need particularized suspicion of criminal activity

àInstead, the court states that Hofer was acting in his capacity as a community caretaker doctrine in checking on Defendant’s welfare

àThe court looked to other Jurisdictions to determine what exactly the “community caretaker doctrine” is and what it requires.

àThey state that “a peace officer has a duty to investigate situations in which a citizen may be in peril or need some type of assistance from an officer”

àTherefore, Hofer would have been derelict in his duties had he not checked on the welfare of a driver pulled off of the side of the road

àFinally, the court articulated a three part test to determine when the actions of an officer are justified under the doctrine:

1)                  If there are “objective, specific, and articulable facts” that would lead an experienced officer to believe that a citizen requires aid, then the officer has a right to stop and investigate

2)                  If in need of aid, the officer may take appropriate action to help or mitigate the danger

3)                  Once the danger is mitigated or help is no longer needed, any further action by the officer would implicate the 4^th Amendment’s protection against unlawful seizures

èThe court ruled that Hofer was justified under this three part test.  Note however that the court justifies only the stop and opening of the door under the doctrine.  This allowed the officer to assess the possible danger or needs of Defendant.  Once the Defendant said he had been drinking and the officer noticed evidence confirming that, this provided the requisite particularized suspicion that Defendant claimed Hofer needed in the first place.  Judgment affirmed.

èNote Brigham City v Stuart, 126 S. Ct. 1943 (2006), which upheld a warrantless entry into a home by the police because the police possessed, “an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.”

            èThis falls under the community caretaking function

èPolice Enforcement of Civility

State v Stanley Janisczak (1990) 579 A.2d 736

àDefendant (Janisczak) appeals his conviction on obstructing government administration

àArgues that his actions were protected under the 1^st Amendment’s protection of free speech and therefore there was insufficient evidence to convict him

àCourt vacates the judgment of the lower court

àPolice are attempting to arrest a motorist (not Defendant), who is driving with a suspended license

àBecause the motorist is refusing to exit his vehicle, the matter requires additional officers, which then leads to a crowd of spectators (including Defendant) wondering what is going on

àFinally, one officer breaks the driver-side window with a flashlight and all five officers drag the motorist from the van and attempt to handcuff him despite his resistance

àIt is during this that the Defendant runs up to the officers and begins to berate them with vulgar insults and other obscenities

àWhen one officer asked the Defendant, by name, to leave the area, Janisczak stepped within inches of the officer and yelled, “F**K you!”, which the officer responded by placing Defendant under arrest.

èDefendant never made physical contact with any of the officers

àThe conduct (speech) he was convicted for is protected by the 1^st Amendment, so this cannot be used as evidence to convict him, therefore, the government has insufficient evidence to convict.

àThe court agrees with this argument

            àFocuses on the lack of physical contact with the officers

àPoints out that under the obstruction statute, it must be proven that Defendant either:

1)                  Intimidated; or

2)                  Engaged in criminal acts

èWith the intent to interfere with public servants performing an official function

àNone of the officers said that they felt intimidated by Defendant’s language

àBecause Defendant was only vulgar and did not use “fighting words” or language that “produces or is likely to produce a clear and present danger”, the speech is protected and no criminal act was committed

èOne last note, the court points out that in addition to Defendant’s language being only vulgar not “fighting”, police are also trained to not react to speech like this, which further supports their judgment of reversal.

 èMost courts will dismiss (or reverse at the appellate level) disorderly conduct charges which stem from verbal assaults only

 èControl of Gangs and Kids

City of Chicago v Jesus Morales (1999) 527 U.S. 41

àChicago Ordinance was passed in 1992 to disrupt loitering by gang members

àThe Supreme Court of Illinois ruled that the ordinance was unconstitutional, the city of Chicago appealed

àU.S. Supreme Court granted certiorari and upheld the Illinois Supreme Court’s ruling  finding that the ordinance was unconstitutionally vague in its language

àThe City of Chicago had a number of gangs which was affecting the city both financially and criminally, as well as striking fear into its residents

àTo combat this, the city passed an ordinance which prohibited, “criminal street gang members from loitering with one another [or others] in a public place”

àIn effect, the officer would tell the suspected loiterer to leave the premises and if the loiterer refuses or does not comply, then the officer may arrest the suspect

àRespondents claim that the vagueness in the statute concerning exactly what sorts of activity the ordinance covers, makes it unconstitutional

àBecause the ordinance defines “loitering” as ‘remaining in any one place with no apparent purpose” (emphasis added), the court states that this leads to such confusion as to what is and is not permissible under the statute that:

1)                  Citizens of Chicago are not given proper notice of what is permissible; and

2)                  It seems to leave a great deal of discretion in the hands of police officers, which could be used discriminatorily or arbitrarily

àIt is the language of “with no apparent purpose” that causes the plurality, as well as O’Connor and Breyer in their concurrences, to strike down the ordinance.

èIn his dissent, Justice Thomas claims that in fact this ordinance is not unconstitutional, in fact it simply gives the police a power that they have always had: preserving the peace

àJustice Thomas (and Scalia) believes that the statute gives the police the proper level of discretion, the same way that they are given it in regards to probable cause and reasonable suspicion

èNote that Justice Thomas seems to be referring to the community caretaker function of police in “preserving the public peace”

èSubsequent to the decision, the City of Chicago revised the language of the ordinance to make it more precise and less discretionary.

Tracy L. Meares, “Norms, Legitimacy, and Law Enforcement” (2000) Page 22

àMeares argues that communities should play a greater role in crime prevention

àHer theory is that the police should focus more on working with the community leaders to build trust and minimize the hierarchy that exists between citizens and police officers

èTo Meares, the way in which communities can affect crime rates is through “norm enforcement”

àSimply put, when members of a community become involved with one another, social linkages begin to form, and from these linkages comes trust

àFrom the trust comes a mutual desire to hold others accountable for their actions, which in turn leads to social norms being established as to how to act

àTherefore, when an expectation is established, the community is able to exert social control over its members, rather than the police having to do so

èShe argues that the current police practice of rounding up drug dealers and putting them in prison for longer terms, only serves to exacerbate the poverty, joblessness, and breaking up of families that was causing the need to commit crime originally

àMeares argues that instilling a belief in the “Justice” of the law in individuals is a much better practice in crime prevention than simply trying to scare individuals with the prospect of severe punishments for crime

àMs. Meares uses the City of Chicago ordinance from Morales, to show how rather than simply arresting drug dealers, the city can disrupt drug markets by forcing dealers to keep moving and not establishing an area to deal

àFinally, she applauds the ordinance’s inclusion of community leaders in determining where to target loiterers

àBy asking community leaders about drug trafficking in their neighborhoods, the police generate trust that they are in fact listening to the people of the city, not simply targeting minorities or the poor

Curfews

àSome cities have established city-wide curfews for persons under 18 in an effort to reduce juvenile crime

àThese curfews restrict the hours in which juveniles may be “in public”, with certain exceptions (Accompanied by parent, to/from work, etc.)

àChallenges to constitutionality of the curfews have for the most part been unsuccessful

àProvided the curfew is related to a governmental interest, the laws have been upheld, mostly

àIn emergency situations (Civil War, etc.) adult curfews have been instituted

 Policing Techniques

Herbert Packer, “The Limits of The Criminal Sanction” (1968) Page 32

àPacker argues that the proper criminal process must be based on two models:

1)                  Crime Control Model

a.       Attention be placed on efficiency:

                                                                           i.      Screening suspects

                                                                         ii.      Determine guilt

                                                                        iii.      Proper sentencing for those convicted

b.      Must be speedy but final

                                                                           i.      Speed

1.      Informal interrogation opposed to testimony and cross-examination

2.      Uniformity in process, think ‘assembly-line’ like process where individuals are investigated, interrogated, tried, and sentenced uniformly

                                                                         ii.      Final

1.      Minimizing the occasions for challenge

2.      Lessen the chances for appeal and possible reversal

c.       The system must strive to properly investigate so that guilt may be discovered, innocents released, and the goal of a guilty plea achieved

2)                  Due Process Model

a.       This model serves as a check on the rapid, mechanical efficiency of the Crime Control Model

b.      This model creates a number of obstacles for the government so that only the guilty can be brought further along the criminal process.

c.       The focus of this model is allowing the accused the maximal ability to defend him or herself against the charges

d.      This is achieved through formal proceedings guaranteed by the constitution

e.       The point here is that unlike the Crime Control Model (speedy, uniform, efficient proceedings), the Due Process Model focuses on the specific facts of the individual’s case, tested by formal rules of evidence and testimony

èPacker maintains that the crime control model without the due process model would lead to tyranny by the government which holds all the power.

 Bureau of Justice Assistance, “Community Policing Consortium, Understanding Community Policing: A Framework for Action” (1994) Page 34

èArticle gives a brief overview of the “Reform Era” Police Practices, before moving on to the current community based plans, which require the police to do more community caretaker functions than in the reform era.

1)                  Reform Era

a.       From 1940’s to 1980’s

b.      Police became more impartial and professional during this time

c.       No longer did the police “walk the beat”, rather they rode in cars, listened to the police scanner for orders from dispatch, and targeted certain areas that statistically were high in crime

d.      Technology had the biggest impact with cars, 911, computer statistics of crime, and increased efficiency of dispatch making police rapid response more possible

e.       No longer did police officers cover the same neighborhoods or walk the same streets

                                                                           i.      To reduce the possibility of corruption police were transferred around the city frequently

                                                                         ii.      Police were told to take different streets and routes, to attempt to outsmart criminals

f.        All of this led to the police becoming more impersonal and faceless and being perceived as “those who arrest you.”

2)                  Community Based

a.       Police-Community Partnership

                                                                           i.      Police must seek out the participation of community leaders and partner with them to protect neighborhoods

                                                                         ii.      Community involvement allows for the police to be kept up to date as to what sorts of problems are in the neighborhood and what sorts of steps need to be taken to deal with those problems

1.      Speaking with shop owners about their concerns

                                                                        iii.      Police must build trust with the communities by treating all people with respect and sensitivity

b.      Problem Solving

                                                                           i.      Addressing the underlying causes of the crimes being committed to prevent them

1.      This is achieved by having knowledge about the community achieved by communicating with members of the community and just being present on the street to see the conditions

                                                                         ii.      Listening to members of community and placing an emphasis on addressing the concerns of the citizens as well as the police department’s concerns

                                                                        iii.      Educating members of the community about crime prevention and safety

1.      Educating women on self-defense or minimizing injury if/when attacked

                                                                       iv.      “The best solutions are those that satisfy community members, improve safety, diminish anxiety, lead to increased order, strengthen ties between the community and the police, and minimize coercive actions”

c.       Internal Procedures

                                                                           i.      Promotion of officers should be contingent upon things other than arrest records, response time, etc.

                                                                         ii.      Assignment Stability

1.      Don’t move the officers around so much so that they can gain the trust of community members

2.      Gain greater knowledge about the community to better problem solve

3.      Develop close working relationships with the citizens

                                                                        iii.      Rewarding quality over quantity

1.      Rewards for greater knowledge of the neighborhood one works in

2.      Completion of skill programs and increase in skill level

3.      Not automatically promoting an officer beyond his current duties, rather rewarding this officer for his/her job well done but keeping him doing the same job he has been doing so well