Chapter 5 special law enforcement procedures

Chapter 5 Special Law Enforcement Procedures

Juvenile Procedures Butte-Glenn Community College Spring 2012

Three Procedure Areas of Special Police Intervention

Fifth & Sixth Amendments

Protections

Fourth Amendment Issues Surrounding Police Searches of

Juvenile Probationers and Parolees

The Suppression of Gang Activities (Focusing on PC 186.22)

Presenter

Presentation Notes

In this chapter, we will discuss three basic procedure areas of Special Police Intervention. The first of these three areas involves the application of Fifth and Sixth Amendment rights to juveniles who are taken in temporary custody. (Remember from Chapter 4, when a juvenile commits a crime, they are not “arrested,” they are taken into temporary custody.) The second involves the application of the Fourth Amendment to juveniles. The third involves California Penal Code statutes that were enacted to aid law enforcement officers in dealing with (and adults) who are involved in gang activities.

Due Process

“The conduct of legal proceedings according to established rules and principals for the

protection and enforcement of private rights.”

“The rights (as to life, liberty and property) are so fundamentally important as to require

compliance with due process standards of fairness and justice.”

Presenter

Presentation Notes

Before we can discuss these procedures, it’s important for everyone to have an understanding of the basic rights we as Americans were given in the original Bill of Rights. (Remember that Bill of Rights is the term given to the first original ten amendments to the U.S. Constitution.) For this chapter discussion, though, we’ll limit ourselves to reviewing the Fourth, Fifth and Sixth Amendments (but not in that order). The Fifth (and Fourteenth) Amendments each contain a Due Process Clause. Due Process regulates how the government must act when taking a person’s life, liberty (e.g. jail) or property (e.g. evidence).

Fifth Amendment

“No person . . . shall be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without due process of law . . .”

Presenter

Presentation Notes

For the purposes of this chapter, the pertinent part of the Fifth Amendment says: “No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . .” So what does this mean? Let’s go back to our cookie jar and the missing cookie . . . On television or in movies, you have probably heard someone say, “I take the Fifth!” when being asked an incriminating question such as, “Did you take that cookie?” The Fifth Amendment means that “the government” (the police or the court) cannot “make” a person incriminate themselves by answering that question. This was originally interpreted to mean when an accused person is testifying in court, but further developed to mean when a police officer asks an in-custody suspect incriminating questions (interrogation). In other words, a person has the right to remain silent when asked incriminating questions.

Sixth Amendment

Rights related to Criminal Prosecutions

“ . . . to have the Assistance of Counsel for his defense.”

Basic Miranda Review (Miranda v. Arizona)

Custody +

Interrogation +

By the Police (i.e. the government)

Miranda “We conclude that the Miranda safeguards come

into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term

‘interrogation’ under Miranda refers not only to express questioning, but also to any words or

actions on the part of the police (other than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating response from the suspect.”

Rhode Island v. Innis (1980) 446 US 291, 300-01.

625(c) W&I Details the Additional (Miranda)

Requirements for Juveniles • When a minor is taken into temporary custody

• Probable (reasonable) Cause for believing the minor is a 601 or 602

• The officer shall advise: • that anything he says can be used against him, and; • him of his constitutional rights:

• right to remain silent • right to have counsel present during any

interrogation • The right to have counsel appointed if he is unable

to afford counsel.

625(c) W&I Details the Additional (Miranda)

Requirements for Juveniles • The law and the California courts have

neglected to give us a time frame of when a minor needs to be advised of his rights per 625(c) W&I

• Best advice: • Immediately

Important Case Laws • People v. Burton (1971)

– A request for a parent should be construed that a minor desires to invoke his right to remain silent

– Officer needs to clarify why the minor wants to speak to a parent

• People v. Lara (1967) – A minor has the capacity to understand his or her

rights and can intelligently waive those rights – Totality of circumstances is the standard used

to determine the minor’s capacity • Age, experience, education, background,

intelligence, capacity to understand

Important Case Laws

• Fare v. Michael C. (1979) – Reiterated “totality of circumstances” as the

standard used – Spelled out what the officer should consider:

• Age, experience, education, background, intelligence, capacity to understand

• In re Anthony J., (1980) – Police were not required to advise parents that he

was in custody – Parents do not have any rights under Miranda

Important Case Laws

• People v. Maestas (1987) – When a minor is interrogated and asks to speak

to a parent, the issue is why does he want to speak with his parents

– The reason why determines whether or not the minor has invoked

– Do not have to advise a minor of the right to speak to a parent

• In re John S., (1988) – Parents do not have any rights in a juvenile

detention/interrogation situation

Important Case Laws

• People v. Nelson (2012) – When a minor has waived Miranda and, during

interrogation, asks to speak with his parents – Is not necessarily an invocation of his Fifth

Amendment Miranda rights – When attempted after an initial wavier, the validity

of the attempt depends upon how a reasonable officer would have interpreted the suspect’s efforts.

– The same rule applies to the minor’s apparent attempt to invoke his right to silence as well as to an attorney (Sixth Amendment).

Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated . . .”

“Exclusionary Rule”

What is it?

• Weeks v. US (1914) – Evidence seized illegally by federal officers is

inadmissible in court • Mapp v. Ohio (1961)

– Evidence seized by all officers is inadmissible in court

School Searches

• Juveniles do not have an absolute expectation of privacy in a school setting

• Administrative searches may be done by school officials at any time – Based on Reasonable suspicion – To maintain discipline and safety

T.L.O. Decision (New Jersey)

• Set “Reasonable Suspicion” as the standard for a school official to conduct a search – The same standard as a pat-search for police

(Terry v. Ohio) • Illegal activity or contraband found may be

turned over to police • Police may not initiate the administrative

search – But may be called in after it has been conducted

Safford Unified School District #1 v. Redding (2009)

Class Discussion

• USSC decision • Privacy rights of the minor and the

intrusiveness of the administrative search outweighed the special interests of the state.

Search of Probationers

• People v. Bravo (1987) – If a person accepts probation, he willingly waives

his Fourth Amendment protection • Search may not go beyond the scope of the

probation order • In re Marcellus L. (1991)

– Made Bravo applicable to juveniles – Upheld loco parentis in that the state has a

special interest in supervising the minor – Search can only be conducted for rehabilitation

and reform purposes


• In re Marcellus L. (1991) (cont.) – Juvenile has no standing to invoke his Fourth

Amendment protections

What does standing mean?


• In re Thomas M., (1993) (Background only) – A minor with a search clause has no standing to

contest a police detention or search • Even when the police are unaware of the

search clause • In re Jamount C., (1993)

– The state’s interest in promoting the health and welfare of children outweighs the individual freedom of minors

– Individualized suspicion is not necessary


• In re Tyrell J., (1994) (for background only) – Juvenile probation is not an act of leniency as it is

with adults – It is a, “final order for a minor’s reformation

and rehabilitation.” – It is in “the minor’s best interests” – A minor may not refuse probation

• He has no choice over what is good for him – Right out of parens patraie


• In re Jaime P., (2006) – Completely reversed Tyrell – Police must know the juvenile is on probation – Police must verify the search clause is in effect

• Unless there is Reasonable Suspicion as is required in any warrantless search

Parole Searches by Police

In a nutshell:

Police may make a suspicionless search of either a parolee or a probationer as long as

officers know beforehand of the search clause

Gangs

• Street Terrorism Enforcement & Prevention (STEP) Act - PC 186.20

• Gang defined - PC 186.22(f) – A group of three or more persons – Primary activity is committing one or more specific

criminal acts: • E.g. ADW, Robbery, Homicide, Drug Sales,

Firearms, Arson, Extortion (PC 186.22(e)) – Having a common name or common identifying sign or

symbol, and: – Whose members individually or collectively engage in

or have engaged in a pattern of criminal gang activity

Places Used by Gangs PC 186.22a

• A building or place used by members of a criminal street gang: – For the purpose of the commission of the offenses

listed above – or any offense involving dangerous or deadly

weapons, burglary, or rape – Every building or place wherein or upon which

that criminal conduct by gang members takes place,

– is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered

Street Gang Registration PC 186.32

• A person who actively participates in any criminal street gang – With knowledge that its members engage in or

have engaged in a pattern of criminal gang activity, and

– Who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang,

– Who has had a criminal conviction or a Petition sustained

• Failing to register is a misdemeanor

Education

Chapter 5 special law enforcement procedures