The
Constitution and how it Bears on Factual Situation 1 and 2
Leslie
K. Penny
Module
8 Final Project Phase 2
Chancellor
University
Abstract
The following essay
covers two separate scenarios involving the same police officer, Officer Sanchez. In the first scenario we are asked to
represent Officer Sanchez who is considering filing a lawsuit against his
department because he was suspended and believes he is also being discriminated
against. In this scenario we are asked
to provide an explanation of any constitutional rights we feel are being
violated, what we think are the chances of success are in the lawsuit and what
stumbling blocks we will have to overcome.
In the second scenario, the same officer, Officer Sanchez is involved in
a stop, seizure and arrest case that I will be prosecuting. In this scenario, we are asked to provide any
constitutional issues we see with the stop, the arrests, and the search of the
vehicle, if I believe the stop was constitutional among other important factors
and if I believe I will win the prosecution.
The
Constitution and how it Bears on Factual Situation 1 and 2.
The topic of discussion consists of two specific
scenarios involving one particular officer, Officer Sanchez, as a constant
variable in both scenarios. The goal in
Scenario I is to portray myself as Officer Sanchez's attorney, who is
considering filing a lawsuit against his department because he was suspended, which
Officer Sanchez believes he is being discriminated against, and advise him what
his recourse would be in regards to his Constitutional rights. What I believe his chances of success are to
be if he goes forth with the law suit and what stumbling blocks, if any, I may
except and have to overcome as I defend him.
Scenario II, also involving Officer Sanchez and a recent
arrest he made of four young men after a traffic stop where the young men were
going three miles over the posted speed limit.
I am acting as an assistant
county prosecutor and have been assigned the criminal case of prosecuting those
four men who have been charged with possession with the intent to distribute
cocaine. The goal in this prosecution is
to research what constitutional issues do I see with the stop, the arrests, and
the search of the vehicle. Whether I
believe the stop was constitutional, whether the arrest of the four was
constitutional, whether a statement one of the young men made will be admissible
in court, and if I believe I will win the prosecution of these four men.
Officer Sanchez has voiced his concerns that he feels he
is being discriminated against because he has not been promoted even though he
has taken the sergeant's test several times.
Facts to consider: he has been on the force for 12 years; he has several
disciplinary complaints filed against him but no suspensions; he is Hispanic;
was told his scores are not high enough for promotion; his department currently
has no management positions filled by Hispanics.
Officer Sanchez relayed a recent incident where he had
been invited to speak at a town hall meeting in his neighborhood, where he took
it upon himself to express his disappointment in not being promoted and his
belief that he is being discriminated against because of his nationality. His speech turned into a high profile
incident because it landed in the local newspaper, which upset his Chief. He was given an ultimatum to not appear to
any more functions such as the one he previously attended or he would face
disciplinary action, which he did not comply with so his Chief suspended him
without pay.
During my consultation with Officer Sanchez, I asked if
he could provide any further specific incidences where he believed he was being
discriminated against and if he had further evidence that would show he was
being discriminated against. I also
requested a copy of his police departments' policies for me to review. Upon reviewing the information Officer
Sanchez provided I discussed with him what I believe to be our recourse in the
discrimination matter and the disciplinary action he received.
In regards to the smaller of the two matters, the
suspension, I explained to Officer Sanchez that his department acted on behalf
of department policy and that I find no constitutional violations. I explained to officer Sanchez that, yes,
while out of uniform and off duty he has full first amendment protection, but
he lost that protection when he voiced his disappointment and claimed to be
discriminated against for being Hispanic in front of a group of predominantly
Spanish speaking individuals which violated his police department rules and
regulations which states that "members and employees shall conduct their
private and professional lives in such a manner as to avoid bringing the
department into disrepute." (Kanovitz, 2010).
I explained to my client that, due to the fact that his
speech made it into the newspaper, brought his department into disrepute and he
really should have taken heed of his Chiefs threat and not attended anymore
functions as I feel the first time he did it deserved disciplinary action. I reminded my client on one more point. The fact that he deliberately disobeyed the
direct order of his Chief constitutes
disciplinary action as well. I explained
we could try to argue that his Fourteenth Amendment, "which prohibits the
government from arbitrarily depriving individuals of their liberty," (Kanovitz,
2010)
was violated but, I feel we would not be successful in that suit because the
perception of his department by the public is paramount due to its paramilitary
organizational public views (Kanovitz, 2010). I also believe we would not be successful in
winning a case for procedural due process from the suspension he received based
on the reasons laid out above.
In regards to filing a disparate treatment discrimination
lawsuit against his department for violating Title VII of the Equal Employment
Opportunities Act of 1964 (Kanovitz, 2010), as it pertains to
my client, I discussed a few points with Officer Sanchez. I explained that if he could supply a little
more concrete evidence or incidences where he was being discriminated against,
we might have a solid case. Perhaps
after interviewing others in the department to see if they have been a witness
of Officer Sanchez being discriminated against or their own horror stories of
discrimination would further bolster the case.
As well as proof that Officer Sanchez's scores for the Sergeant exams he
has taken were, in fact, high enough to qualify him for the position of
Sergeant would even further give us a foot to stand on in a lawsuit.
However, I explained to my client that his already not
stellar record and low-test scores are reason enough for a department to pass
over him for advancement and give the title to a more deserving officer. I advised my client that his department will
more than likely be able to "articulate a legitimate, nondiscriminatory
reason for the treatment" and if they do "shoulder this burden, the
presumption if discrimination dissolves, and the employee must then prove that
the employer's nondiscriminatory explanation is pretextual and not the real reason" (Kanovitz,
2010). Which I do not feel my client can achieve
that proof, therefore I would advise against filing a lawsuit against his
department.
Moving onto scenario II, I am now portraying an Assistant
County Prosecutor who has the task of prosecuting four young men mentioned in
the introductory paragraph that were arrested by Officer Sanchez and his
partner for possession with the intent to distribute cocaine. The facts of this case surround the stop of a
vehicle occupied by four Hispanic teenagers that Officer Sanchez and his
partner pulled over for a minor traffic violation of going 28mph in a 25mph
zone.
I find that I will be hard pressed to prosecute these
four teens as the stop may actually prove to be a bad stop. Therefore,
all the evidence removed from the vehicle and the statement of one of the
teenagers made will potentially become fruits of the poisonous tree and be
inadmissible. First, what we have to
consider is if 3 miles over the posted speed limit is a gross deviation of
speed. Does Officer Sanchez have a history of doing
traffic stops with this type of speed violation? If so, then he has a legitimate reason for
pulling the teenagers over. In order to
prosecute the teenagers, I would have to prove that and Officer Sanchez would
have to articulate that in court.
I am certain I will come across the obstacle of the teens
defense claiming they were racially profiled because they are Hispanic in a bad
neighborhood. Officer Sanchez reported
that the teenagers were in an area where many drug deals have occurred. The teens defense will argue that going three
miles over the limit does not justify a stop and were only stopped because they
were Hispanic in a bad area. They will
argue that Officer Sanchez's traffic stop of their particular vehicle violated
their constitutional rights to "be accorded equal protection of the
law" (The Reality of Racial Profiling, 2013).
The fact that the driver was speeding, even if it was
only a few mph over the limit, combined with the type of area the boys were in,
might be enough probable cause for the seizure.
In Wren v. United States, the
Supreme Court ruled it ok for police to make a traffic stop on a traffic
violation even though they had a hunch about unrelated criminal activity (Kanovitz, 2010). If I can prove the stop was not due to racial
profiling then I would cite the above referenced case in defense as to why
Officer Sanchez made the stop.
Officer Sanchez has yet to articulate why he felt he
needed them all to exit the vehicle but he does not necessarily have to. First I would pose a handful of
questions. Did they not provide proper
identification? Were they acting
suspicious? Did Officer Sanchez smell
anything that would make him suspicious?
Did he see something suspicious in plain view? All valid questions that would reinforce the
removal of all four teens from the vehicle.
But, according to Kanovitz, if this, in fact, can be proved a lawful
stop, then Officer Sanchez is allowed certain precautions as a matter of course
including ordering "the motorist to step out of the automobile and remain
outside for the duration of the stop" Pennsylvania
v. Mimms (p. 131).
As the Assistant Prosecuting Attorney, I do not feel
confident that Officer Sanchez will be able to articulate his reasoning's to
the satisfaction of the grand jury.
Therefore, I do not believe I will
have any success prosecuting these young men. If I am having a hard time believing his stop
was a good one then it is not worth the risk of the grand jury feeling the same
way. However, If that obstacle can be
tackled then next we come to the part of
the stop where the teens were frisked.
Officer Sanchez will have to articulate why he frisked the four boys by
providing reasonable suspicion as explained in the case Arizona v. Johnson, that states "when police lawfully stop a
vehicle, they may perform a pat down of the passengers as well as the driver,
provided they have reasonable suspicion that the person frisked is armed and
dangerous" (Kanovitz, 2010).
Did he feel his partner and his safety were in jeopardy? Was this a lawful Terry stop? Officer Sanchez will have to provide me with
the three constitutional requirements for a Terry stop: "have reasonable
suspicion to initiate the stop; conduct the business of the stop as
expeditiously as possible so as to not prolong the period of involuntary
detention; and employ the least intrusive means of detention and investigation
reasonably available that will achieve their goal" (Kanovitz, 2010).
Next, we come to the search of the car. Officer Sanchez does not say whether he asked
for permission so he must provide probable cause for the search if consent was
not given. Nor did he get a warrant to open
the trunk of the vehicle where a kilo of cocaine was found. With that being said, Officer Sanchez can
legally search the locked trunk if he can articulate "probable cause to
believe that the vehicle contains criminal evidence or contraband" Maryland v. Dyson (Kanovitz, 2010).
But, again, this evidence may be found inadmissible if the stop is
deemed bad.
Lastly, we come to the confession. Yes, the teens were arrested but were their
Miranda rights read to them? Officer
Sanchez will need to provide proof of that.
The teens defense attorney will claim their Miranda was not read to
them, therefore any statements made will not be admissible. The Miranda
rule "is grounded in the Fifth Amendment privilege against
self-incrimination" (Kanovitz, 2010). The Teens confession was given during a
police custodial interrogation.
As the prosecutor, I will have to prove that the suspect
was warned of his Miranda rights and
that the teen voluntarily waived them before making the statement. I do not feel confident that Officer Sanchez
and his partner can provide that proof.
The defense will also argue the youngest of the teens was coerced into
the confession because he felt intimidated after being separated from his
friends, therefore the confession is tainted.
The defense will challenge the confession yet again in regards to the
exclusionary rule. "The Fourth
Amendment exclusionary rule applies to confessions as well as to physical
evidence if the police" in fact conducted "an illegal search, found drugs,
and the suspect confesses when confronted with the evidence" then
"the confession will be suppressed even if it was otherwise
voluntary" (Kanovitz, 2010). I believe I have no ground to stand on with
the defenses argument that the confession is inadmissible.
To conclude, I feel both scenarios will not be successful
in court. Officer Sanchez, in the first
scenario, does not have a strong case to file suit against his department for
discrimination and the suspension. In
the second scenario, the prosecution of the teens rests solely on the initial
stop. I find it would be hard to prove
that Officer Sanchez made a legal stop in this case. If I were to go through with the prosecution
of the teens, I believe I would lose the case and money would have been
wasted.
Works Cited
Kanovitz, J. R. (2010). Constitutional Law.
Albany: Anderson Publishing.
The Reality of
Racial Profiling. (2013). Retrieved
04 26, 2013, from The Nation's Premier Civil & Human Rights Coalition:
http://www.civilrights.org/publications/reports/racial-profiling2011/the-reality-of-racial.html
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