Constitutional Rights & Protections Before Arrest
The United States Constitution was a concept first derived from the repression citizens once suffered under British rule. Rights were determined by the crown and only extended to those citizens the monarchy felt deserving. Once accused of a crime, a citizen had very limited protection and guarantees of fairness and due process. In an effort to provide for guaranteed rights to those accused of a crime, the Constitutional Amendments addressed rights designed to protect citizens before arrest and to ensure arrests are based on as many available facts as possible. Context
Of the many protections afforded citizens prior to arrest procedures, the most frequently addressed by the courts is investigative stops and the level of authority possessed by the police to detain citizens. Two benchmarks exist in an effort to allow the police to investigate and prevent crime while protecting the rights of free citizens. The terms Reasonable Suspicion and Probable Cause greatly determine the extent of the police’s (State) authority in detaining individuals believed to be involved in a crime and subsequently impact the ability to prosecute them. Reasonable suspicion is addressed in what is commonly referred to as the Stop and Frisk law or investigatory stop. Police officers may temporarily detain (the length of that detention is a frequently argued issue) an individual long enough to determine their identity and a general explanation for their whereabouts. The frisk refers to a cursory pat down an officer may conduct to feel for any obvious weapons. Again, an officer must have a founded suspicion that the person may be armed. This is not a search and no part of the person or his belongings is subject to search under mere reasonable suspicion. Once an officer concludes this brief interview, a citizen can be detained no longer without further indicators of criminal activity. This stop, although certainly less than arrest, still requires the articulation of facts that the suspicion exists that a person has committed or is about to commit a crime. A “hunch”, even from an experienced police officer, can not singularly constitute reasonable suspicion. Beyond reasonable suspicion, lies the very subjective criterion of probable cause. Probable cause is the standard utilized to afford citizens protective rights from detention, as well as searches that may take place without a significant indication of criminal activity. The level of knowledge is based on the totality of facts leading a reasonable person to believe that the individual involved did indeed commit a crime. It is a much higher standard than reasonable suspicion and requires factual evidence. This detention most often leads to physical arrest. The historical basis leading to probable cause is founded in America’s independence. British troops entered homes, searched belongings and detained colonists for any reason they saw fit. Often, these detentions were based on nothing at all and for very illegitimate reasons. Cases of rape, theft and other crimes committed by troops against colonists were not uncommon. The decision making process was solely left up to an individual soldier and was not subject to review by any higher authority or judicial figure. Attesting to probable cause for a search or detention (arrest) is most often accomplished by warrant. A warrant is simply the judicial instrument based on the articulated facts leading to probable cause. It is the most thorough means (judicial review); however, not the only method where probable cause gives the police authority to search or detain. When law enforcement is investigating felony crimes which have been or are being committed, probable cause is often the criteria that allows them to take immediate action. Searches can be conducted in conjunction with an arrest. Likewise, property, vehicles and homes of felony subjects can be searched if the...
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