Detective Lieutenant Barry M. Baker (ret.) is a 32 year veteran of the Baltimore Police Department
The US Constitution is something police officers should study, and you don’t have to be a lawyer or scholar to understand its importance. The Declaration of Independence contains the Bill of Rights, and it lists the first ten amendments to the Constitution. This is a good place to start, because there are a number of amendments that relate directly to your responsibilities.
The Founders were in disagreement regarding the inclusion of the ten amendments to the US Constitution. Some reasoned the inclusion was redundant, because they believed the Constitution was sufficient as written. Others believed the amendments were necessary to reinforce the rights of the individual. The latter group won the argument, and the amendments were approved.
The First Ten Amendments to the US Constitution
First Amendment – guarantees the right to free speech, freedom of the press, freedom to assemble, and freedom of religion.
Second Amendment – guarantees the right to keep and bear arms.
Third Amendment – prevents the government from quartering soldiers in private homes without the consent of the homeowner.
Fourth Amendment – prevents the government from conducting unreasonable search and seizure of a person or private property.
Fifth Amendment – to the US Constitution is best known for its protection against self-incrimination, and it guarantees due process of law. It provides Grand Jury provisions, and it defines double jeopardy wherein a person cannot be tried twice for the same crime.
Sixth Amendment – provides a person charged criminally the right to a speedy trial, and a trial by jury.
Seventh Amendment – extends the right to a jury trial in Federal civil cases.
Eighth Amendment – bars excessive bail and fines, and it bars cruel and unusual punishment.
Ninth Amendment – makes it clear that rights specifically listed are not the only rights a person may be afforded under the US Constitution.
Tenth Amendment – states the Federal Government has only the powers delegated in the Constitution, and powers not listed belong to the states.
“Breach of Peace” Laws and the First Amendment
One of your primary duties will be the maintenance of peace, and you’ll arrest people for breaching the peace. The US Constitution may guarantee free speech and assembly, but one would be naïve to believe that anything goes. Courts determine when speech or assembly become unlawful, and those determinations are based on how the activities are conducted. The US Supreme Court has struck down state laws that infringed on free speech, and the effect has been positive. It’s likely that your state’s criminal code will have “breach of peace” laws that are well reasoned, and they’ll be in compliance with the First Amendment.
Let’s look at an example of a breach of peace incident, and its relationship to the US Constitution. You’re dispatched to investigate a street disturbance in front of a local convenience store. You park at the curb near the store’s entrance, and you observe a man speaking to a group of people. The man is standing near the door to the store, but he’s not blocking people entering or exiting the store.
He’s speaking in a loud voice, but his speech is no louder than the surrounding noise from the street. The group of people listening to him is orderly, and they are not blocking the free flow of pedestrian traffic. You determine the subject of his speech to be the end of the world, and his warnings are apocalyptic. Some of his listeners occasionally shout agreement or disagreement in an exchange of ideas. The store’s owner may disagree with you, but you determine that the man is exercising free speech guaranteed by the US Constitution.
The Same Incident with a Different Ending
The subject of his speech is still the end of the world, but he’s delivering his message in a physically aggressive manner. He physically blocks every person attempting to enter the store, and he shouts at them only inches from their faces. In some instances, he grabs a person’s arm to prevent the person’s escape from him. You determine his actions are not protected under the US Constitution. Speech is separate and apart from the man’s disruptive behavior.
You’ll encounter countless incidents where people are expressing themselves, and many will scream that they are exercising free speech. You’ll arrest some, because you won’t be able to convince them that their behavior is unlawful. They’ll be disrupting the peace of others by violating laws that exist to protect the rights of everybody. The decisions you make will always be based on a reasoned understanding the US Constitution.
Search and Seizure and the Fourth Amendment – US Constitution
A woman approaches you, and she tells you that a man is selling heroin from his car at a particular location. She provides you with a detailed description of the suspect and his car. The woman refuses to identify herself, because she doesn’t want to become further involved.
You respond to the location, and you observe the suspect and car exactly as described. You accost the suspect, and you search his pockets. Contained in his right pants’ pocket is five baggies containing suspected heroin. A search of the car reveals an additional thirty baggies of suspected heroin in the car’s trunk. Congratulations! Under the US Constitution, you have conducted an UNREASONABLE search and seizure of a person and property.
You must have probable cause to arrest a person, and you cannot search a person if that person is not under arrest; unless, the person freely consents to a search. Your report from the anonymous woman does not rise to the level of probable cause, so you have two choices. Surveil the suspect in the hope that he’ll conduct his drug sales under your observation, or you could get imaginative.
You could sneak up on the suspect and startle him just enough to put him off his game. Before he regains his composure, you say, “Hand over the drugs. I’ve been watching you, and I know you’re dealing.” Or, you could simply ask him to consent to a search. You’d be amazed how often people consent; even though, they are carrying contraband. The US Constitution provides a lot of rights, but stupidity isn’t one of them.
There’s a lot to learn about search and seizure, but it’s an interesting subject. You’ll get plenty of practice as your career progresses, and you’ll make some mistakes along the way. Just make certain that you learn the lessons from the mistakes.
The Fifth Amendment – Self-Incrimination and Double Jeopardy
There’s more, but self-incrimination and double jeopardy are, to me, the most interesting parts. A person does not have to talk to you about anything, and you’ll meet a few of those people. It’s not a big deal, because you should strive to build your cases independent of self-incriminating statements or confessions. The US Constitution protects the individual against self-incrimination, and that’s a good thing.
Double Jeopardy is not absolute - US Constitution
You might think double jeopardy is absolute, because you see it all the time in television and movie court dramas. The jury finds the defendant not guilty, and the defendant is free and clear. The person cannot be tried for the same crime again, because the US Constitution says, “… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
Double jeopardy exists in western democracies, but the United States has the closest thing to absolute double jeopardy. We have the dual sovereignty doctrine that recognizes a state and the federal government as separate sovereigns. Police officers should be particularly interested in the dual sovereignty doctrine, because police officers are most often its targets. The US Constitution is the greatest document ever conceived, but it is far from the least debated. I’ve provided this link to Gamble v. United States for your continuing education on double jeopardy.
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