42 Section 4.5: The Legal Environment of Policing
Criminal law is often used as a very general term to describe the entire body of law that is of concern to the criminal justice system. Recall that the two major parts are the substantive criminal law and the procedural criminal law. The substantive criminal law consists largely of statutes that define criminal acts. The procedural criminal law dictates how the criminal justice system should treat people. Because the police are the gatekeepers of the criminal justice system and come into contact with citizens far more often than any other component of the criminal justice system, the law of criminal procedure has more to say about how the police treat people than any other topic.
Criminal procedure, then, can be seen as a branch of law that dictates how the government investigates, prosecutes, judges, and sentences those accused of crimes. The bulk of this law is a matter of interpreting the Constitution of the United States. When it comes to how the police must treat people, the most important body of law stems from the Bill of Rights. The Supreme Court of the United States interprets the Bill of Rights, and that court has the power to establish police practice in the field. There are also state constitutions, statutes, and administrative rules that circumscribe police conduct. These are also part of the body of procedural law. Perhaps the most important laws that concern police conduct are the Fourth and Fifth Amendments of the United States Constitution.
The Fourth Amendment States that: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fifth Amendment states that: “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.”
The Sixth Amendment guarantees the right to a public and speedy trial, as well as the right to the assistance of counsel. The right to counsel is protected at many stages of the criminal justice process, not just at trial. Criminal defendants have the right to an attorney during custodial interrogations, for example.
The Fourteenth Amendment requires the States to observe the due process standards set forth in the federal Constitution as interpreted by federal appeals courts. This gives the federal appellate courts the authority to consider the constitutionality of acts of government agents employed by the state such as police officers and corrections officers. It also gives the high courts the authority to review the constitutionality of state statutory laws. Not all federal constitutional rights are considered to be due process rights, so some protections are not forced on the states. For e