These are the same mistakes I analyze when conducting my own criminal investigations for clients.
These mistakes will usually involve the following:
- Violation of suspects rights
- Breach of procedure regarding evidence
Lets review the mistakes….
- Conducting a Search, Stop or Arrest Without a Warrant, Consent or Probable Cause
- Neglecting to Read Arrestees Their Miranda Rights
- Writing a Bare Bones Police Report and Leaving Out Important Details
- Not Interviewing And/Or Obtaining Contact Information For Percipient Witnesses
- What are Percipient Witnesses?
- Not Following Proper Police Procedures to Ensure Chain of Custody
- Escalating a Situation by Use of Force
Conducting a Search, Stop or Arrest Without a Warrant, Consent or Probable Cause
Before a police officer can stop, search or arrest you, he or she must have the following:
- Reasonable suspicion to stop you, or
- Probable cause to search or arrest you, or
- Consent to search. or
- A warrant to arrest or search you.
What is a “Terry Search?”
A Terry search is based on reasonable suspicion, a variant to probable cause and a lesser standard.
If police saw you in the midst of a street transaction with known drug dealers, or saw you running from a store holding unpackaged items in your hand, this would likely generate reasonable suspicion and justify a stop.
What is Probable Cause?
This is defined in various ways, but it is essentially “an honest and strong suspicion or a state of facts that would cause a prudent person to believe that a suspect committed the crime under investigation”1.
Police cannot stop you because you look suspicious or are of a particular color, race or ethnic origin.
Police can search you if you consent and officers will often testify that a defendant gave consent for police to search their car, office, or home2.
Otherwise, a valid search warrant can only be obtained based on:
- A sworn, detailed affidavit by a police officer before a neutral magistrate or judge
- Probable cause that a crime has been committed
- Language that describes with reasonable particularity the place to be searched and the items or person to be seized
- And served within normal business hours (7 am and 10 pm) although a judge can authorize it at any time of day or night for good cause
Other mistakes police make when wanting to make an arrest or search include:
- Fabricating or exaggerating facts to find probable cause to issue the warrant
- Not being specific in the items to be seized
- Searching for items not within the scope of the warrant
- Seizing items not within the scope of the warrant
- Serving the warrant outside the hours of its scope
- Serving the wrong person or at the wrong location
In the absence of an arrest warrant, police cannot arrest a person unless the officer has reasonable cause to believe that person has committed a crime.
Can You Be Arrested In Your Home Without A Warrant?
Arrests within a person’s home are not permitted without a warrant, even upon probable cause, unless there are exigent circumstances3.
This extends to persons arrested in someone else’s residence4.
What Are Exigent Circumstances?
Exigent circumstances refers to emergency situations that require immediate action to prevent imminent danger to life or serious damage to property, or to prevent or forestall the imminent escape of a suspect or destruction of evidence5.
Although the court essentially relies on the officer’s discretion to decide whether there are exigent circumstances to justify an arrest in a dwelling without a warrant, the court does look to certain facts that existed at the time of the arrest6:
What Facts Does The Court Review?
- A grave offense is involved (physical violence)
- Suspect is believed to be armed
- There is a clear showing of probable cause
- There exists a strong showing that the suspect is on the premises
- There is a strong likelihood the suspect will escape if not immediately apprehended
- The entry is made peaceably, even though no consent was given to enter
What Errors Do Police Make With Warrants?
Errors by police occur when they are unable to make a credible showing that the defendant was either on the premises or was armed, or that he or she would escape if not placed under arrest.
If consent was not given, officers may not use force to enter and arrest the suspect without a warrant.
If a court deems the arrest unlawful, all charges stemming from that arrest may be dismissed.
Neglecting to Read Arrestees Their Miranda Rights
Miranda rights are those concerning a defendant’s right against self-incrimination and to have the assistance of counsel when being questioned or interrogated by police7.
Watch this video to understand when miranda comes into play.
What Are Your Miranda Rights?
- Your have the right to remain silent.
- Anything you say can be used against you in a court of law.
- Your right to consult with an attorney and have that attorney present with you during questioning.
- If you cannot afford an attorney, the court will appoint one for you.
What Mistakes Can Police Make Regarding Miranda Warnings?
Police officers may place you in custody and not immediately provide you with the Miranda warning. You are considered in custody if:
- Police place you in handcuffs
- You are Placed in a locked room
- You have asked and been told you are not free to leave yet
- Your freedom of action is restricted in a significant way
You are considered under arrest once you are in custody or are not free to leave, even if the police have not said anything to you about being under arrest.
Interogation Of Minors
If a minor has been arrested or taken into custody, then California law requires that police read the minor his or her Miranda rights, regardless of whether they intend to interrogate the defendant.
If the minor’s request for a lawyer or parent to be present was denied and then made an incriminating statement, the court will look at the overall circumstances to determine if the statement was given voluntarily.
What If A Minor Was Not Read The Miranda Warning?
If the child is not read the Miranda warnings and gives an incriminating statement, courts will examine the overall circumstances to determine if the child was aware that he or she was free to leave.
The age of the minor is an important consideration since a child may not fully understand that he or she is free to not answer questions9.
Asserting Right to Counsel
Generally, if the defendant states that he wants to assert his right to counsel, then officers may not re-approach the defendant and attempt to question him or her unless the attorney is present when the defendant waives his or her right to remain silent.
What If The Officer Returns Later That Day?
Even if the officer returns a few hours later or the next day, repeats the Miranda rights to the defendant, and the defendant makes incriminating statements, these cannot be used as evidence unless the defendant unequivocally and voluntarily waives those rights.10.
For example, if the defendant happens to re-initiate the interrogation, regardless if he advised the officers that he wished to remain silent or wanted to speak to an attorney, then the officer must re-advise the defendant of his Miranda rights and seek a waiver11.
Coercion and Involuntary Statements
An involuntary statement or one coerced by police occurs when the defendant’s free will has been overcome12. Your free will may be compromised if you are in intense pain and an officer persists in questioning you.
But there are other less obvious situations which a court could interpret as being intimidating and coercive enough in determining that your free will was overcome when you made an incriminating statement. This can occur even if you have been read your Miranda rights and waived them.
Factors that courts review if coercion is alleged in obtaining a statement include:
- Length of the interrogation
- The defendant’s age, maturity or mental health
- Promises of leniency
- Depriving you of food, water or bathroom use
- Interrogating you at gunpoint
- Striking you and threatening more physical harm
- Threats of no food, bathroom breaks, sleep, or that harm will come to an intimate partner
- Possibly questioning you while you are heavily intoxicated or under the influence of drugs so long as you were unable to think clearly
- Continuing to question you after you have asserted your rights
If Police Officers Lie To You Is That Coercion?
Lying to you that evidence has been found to convict you is not considered coercion13.
Getting you to talk while lying about not having the discussion recorded is not deception in forcing you to answer questions14.
Writing a Bare Bones Police Report and Leaving Out Important Details
A police report that leaves out important details can come back to haunt the officer and can hinder a successful prosecution.
What Information Is Included In The Police Report?
Police reports contain relevant information about:
- The officer’s observations while investigating a case
- Evidence found at the scene.
- Witness’ statements
- Chain of evidence
Officers also rely on the police report when testifying at preliminary hearings, motions, or at trials since it may be weeks or months since the event and arrest took place.
What Important Information Could Be Missing From A Police Report?
A report with the bare minimum of facts and observations can be used by the defense to question or point out the lack of certain important information:
- Weather conditions at the time
- Description of the vehicles, firearm, drugs or other contraband
- Where the witness was situated when the offense was observed
- The content of witness statements
- The demeanor of the defendant
- Who else was present at the scene
- Where certain evidence was found and its condition
- Who had access to the evidence
- Who had access to the crime scene
- How was the crime scene secured
- That certain allegations made against the defendant are not in the report
How Can a Defense Attorney Use This To Their Advantage?
If a police report lacks essential facts, then the defense attorney can suggest that certain facts not included may have been exculpatory or suggestive of the defendant’s innocence or that events may or may not have occurred as alleged since there is no record of it.
Juries will often not tolerate shoddy police work or practices and may feel that an officer is hiding something.
Since a criminal conviction requires unanimity in finding a defendant guilty, only one juror needs to find reasonable doubt.
Not Interviewing And/Or Obtaining Contact Information For Percipient Witnesses
Officers sometimes fail to find or to interview percipient witnesses who are known to them and whose statements could support other evidence or which could exonerate a defendant.
What are Percipient Witnesses?
Percipient witnesses are those persons who directly observed an event such as having seen the defendant at the scene of the crime or someone who can provide some exculpatory evidence that helps the defense.
How Does This Police Mistake Affect A Case?
By interviewing a witness at the scene, an officer can preserve these memories of the event without these influences.
If the witness is needed at a future time but is unable to recall certain facts, the previous statement can be used to refresh the witness’ recollection.
If contact information for the witness is not obtained, it is probable that if the matter goes to trial, an essential witness cannot be found and the charges may have to be dropped.
Not Booking Important Evidence Items Into Evidence
Police may fail to book certain evidence, either because of a mistake or because they didn’t believe the evidence was relevant to the case.
Are Police Officers Required to Follow Certain Procedures with Regard to Evidence?
Evidence that is found at the crime scene or elsewhere that is relevant to the case is required to be booked into evidence so that it may be preserved and remain untainted.
Once booked, it is also subject to being disclosed to the defendant’s attorney.
Evidence may include
- Items used in the commission of a crime (weapons or vehicles)
- Items that are the subject of a crime such as contraband
- DNA evidence
- Body-worn camera recordings
- Recordings of statements taken or obtained by others
- Identity of witnesses
- Witness statements
- Blood test results
- Breath sample results
- Documents purported as incriminating or that could be exculpatory in nature
- Objects at scene that may identify or lead to another suspect
A police shooting of an unarmed suspect whom the officer claims attacked the officer with what appeared to be a weapon.
Body-cam recordings that were not booked into evidence reveal that the suspect had his hands up and was willing to be taken into custody.
If such evidence was available and known to police and not booked into evidence, but was later discovered, the defendant’s conviction could be dismissed.
Not Following Proper Police Procedures to Ensure Chain of Custody
Whenever a unique or important piece of evidence is found such as a firearm, blood or DNA sample, the police must follow proper procedures in what is referred to as a “chain of evidence.”
What is the Chain of Evidence?
The chain of evidence is what must be proved in a court of law to show what happened to the evidence from the time it was found to the point where it is introduced into evidence at the trial.
The prosecution has the burden of proving chain of evidence.
What Procedures Must The Police Follow With The Chain of Evidence?
- The item or evidence is what it purports to be (blood or DNA sample from the defendant; bullet from the gun used in the crime)
- Who has possessed the item or evidence since it was taken from the scene or defendant
- That it has been in constant possession of the police or other agency authorized to handle it
- That the he evidence has remained in substantially the same condition from the time the person within the chain of custody took possession of it until it was transferred to another person or that it was in a secure storage area
- The item was marked according to procedure and properly identified
Not Making a Clear Record of Items Seized or Where Said Items Were Taken
Police are trained to carefully make a record of all evidence seized that includes where the evidence was taken. This constitutes the initiation or beginning of the chain of custody that must be documented up until the time the evidence is introduced.
Mistakes That officers Make During Investigations
Officers err when they either fail to make the record at the earliest opportunity or do make a record days or weeks later and must rely on faulty recollection.
If several items were taken, the officer must describe each item and the area where it was found.
Photos of the scene or testimony from other officers at the scene may conflict with the record made. If so, there exists a discrepancy or break in the chain of custody.
Break in the Chain of Custody
What Happens if there is a Break in the Chain of Custody?
When a vital link in the chain of custody is broken or unaccounted for, the judge has a duty to exclude the evidence15.
A police officer may have found a bloody glove at the scene and placed it in a plastic bag.
However, the officer cannot state exactly where the glove was found, He may also be unable to state to whom he gave the bag with the glove to after securing it.
Or, the bag was left on top of a police vehicle and not placed in a secure locker so that multiple people had access to it.
Prosecutor Must Show that it is Reasonably Certain the Evidence was not Altered.
If the procession of who had possession of the evidence and what was done to it cannot be shown, it is likely a judge will rule it inadmissible as it cannot be offered as it purports to be.
A prosecutor has the burden when offering a piece of evidence of showing that it is “reasonably certain” that the evidence has not been altered16.
Suppression of Evidence
What Should a Defense Attorney do When the Chain of Custody is Broken?
When an officer that is in charge of
- Recovering the evidence,
- Securing the evidence,
- Marking and identifying the evidence, and
- Ensuring that it is not altered
Fails to show that each link in the chain of possession is accounted for, then that evidence may be suppressed.
Although a trial court has some discretion in determining if the break in the chain was material or vital.
If it is just as likely as not that the evidence analyzed was not the evidence originally received, then the court must exclude it17.
Escalating a Situation by Use of Force
If excessive force is alleged, police misconduct may lead to the prosecution offering a reduction in chargesbut this will not necessarily require a court to dismiss charges.
It can also lead to criminal charges against the police for:
- Penal Code 243(d) pc – Battery Causing Serious Bodily Injury
- Involuntary Manslaughter
- Penal Code 187 pc – Murder
The seminal case in excessive use of force by police is Graham v. Connor (1989) 490 U.S. 386, wherein the court described how a court should approach the issue by making the following inquiry:
- What was the severity of the crime the officer was investigating?
- Whether the suspect presented an immediate threat to the safety of the officers or the public
- Whether the suspect was actively resisting arrest or attempting to escape
If the officer was aware of the suspect’s history of violence, mental illness or impairment due to drugs or alcohol, this is a vital factor in the officer having to resort to force18.
However, police can easily misjudge a situation and escalate matters by resorting to excessive force when other means of effectuating the arrest could have been used.
A Civil Suit Against Police May Assert:
- The use of force was disproportional to the person’s resistance
- There was no urgent need to resolve the situation
- The officer could have used less force and still accomplished the objective
- The officer lacked training and competency in using the tools of force that were applied
- The officer’s conduct was not objectively reasonable
- The officer initiated the force
Next Steps If You Need Help
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
Request A Free Consultation
- Beck v. Ohio (1964) 379 U.S. 89, 91
- Schneckloth v. Bustamonte (1973) 412 U.S. 218, 291
- People v. Campa (1984) 36 Cal.3d 263, 27-277
- People v. Tillery (1979) 99 Cal.App. 3d 975, 978-979
- People v. Ramey (1976) 16 Cal.3d 263
- Dorman v. U.S. (D.C. Circuit 1970) 435 F.2d 385
- Miranda v. Arizona (1966) 384 U.S. 436
- California v. Beheler (1983) 463 U.S. 1121
- J.D.B. v. North Carolina (2011) 564 U.S. 261
- Edwards v. Arizona (1981) 451 U.S. 477
- Oregon v. Bradshaw (1983) 462 U.S. 1039
- Rogers v. Richmond (1961) 365 U.S. 534, 540
- People v. Farnham (2002) 28 Cal.4th 107; Oregon v. Mathieson (1977) 429 U.S. 492
- People v. Sims (1993) 5 Cal.4th 405
- People v. Lucas (1995) 12 Cal.4th 415, 444
- People v. Catlin (2001) 26 Cal.4th 81, 134; People v. Herrera (2000) 83 Cal.App.4th 46, 61
- People v. Williams (1997) 16 Cal.4th 153, 196; People v. Jimenez (2008) 165 Cal.App.4th 75
- Krueger v. Fuhr (1993) 991 F.2d 435