To Release
You are well into your tour of duty as Watch Commander (“W/C”) when two officers enter your office for approval of an arrest report. Before you can even look at the screen, the officers excitedly tell you what transpired. They explain how they randomly chose a house on their beat and forced their way inside by kicking in the door, and then they proceeded to ransack the owners’ home in search of contraband. They further explain how they tore down the drywall hoping that firearms and drugs would be hidden in the wall. Although the shock of what you just heard is clearly discernable, they proudly tell you how the owners admitted to having marijuana in addition to a couple of firearms in their home.
Now, as a result of this egregious violation of law, do you release the persons whom they have arrested in order to mitigate the damage already done, or, do you sign the arrest report and proceed with the booking process? Without a second thought, you should sign the arrest report and process him as any other arrestee.1 “Yes, but the officer recovered everything illegally, and it surely will be tossed out in court”, says a reluctant W/C. The argument goes on: “How can I approve charges for a patently unconstitutional arrest?” This is where I see the confusion. Do not mix the “how probable cause (“p/c”) was established” with “is there p/c established”. At our stage of the criminal justice process, the former has no bearing on the legitimacy of the latter. In other words, the method used to obtain the p/c does not affect whatsoever the end result that there is p/c to believe an offense has been committed. Although the officers had no p/c to enter the owners’ home, the p/c to believe an offense has been committed and that the owners committed the offense was established by the owners’ admission that the drugs and firearms belonged to them.
Of course, it is very likely that at some point in the process the exclusionary rule2 will result in the evidence being suppressed. However, again, this is completely irrelevant to the W/C’s determination that there is p/c to charge. Consider this: Even after the arrestee has entered the court system, the fact that the method used to acquire the p/c was unlawful will not result in automatic dismissal. For instance, at an “initial appearance”3 one of the court’s functions is to determine if there is p/c to believe the person in custody committed the offense. Of course, it is well known that often times the court will dispose of a case (usually a small amount of drugs) if it determines the officer(s) acquired the p/c illegally. Notwithstanding, the courts do this as a way to “clean house” for cases that inevitably will be lost rather than because they are mandated. And it is doubtful a court would dispose of a case for this reason if the accused were a murderer. In such a situation, the court would defer judgment as to the suppression issue for the appropriate forum, i.e., the preliminary hearing. Even at the preliminary hearing, the judge is not to contemplate the legality of the method used to justify the arrest, unless and until the defense raises the issue via a motion.4 There too, the judge’s inquiry is limited solely to “is there p/c”, not “how p/c was established.” As you can see, there is a time and place to dispose of a case for this reason; it simply is not at the W/C’s desk.
Still, regardless of the disposition of the criminal case, a cautious W/C may be concerned about civil ramifications for approving the charges and detaining under these circumstances. The argument goes as follows: By approving and detaining a person knowing these facts, a W/ C, at minimum, is perpetuating the violation, and quite possibly could be considered complicit. These arguments are specious. First, the W/C is not perpetuating the violation because at the time of his signatory, the detainment is based on legitimate p/c (the aforesaid admissions); hence, detainment and processing is completely lawful. Secondly, for a W/C to be considered complicit, it would have to be shown minimally that he knew about the impending violation and took no action. Clearly, the W/C knew nothing of the incident I described until it was over.
I realize the example used is extreme, but I feel it is necessary to illustrate a point. That is, a W/C should not be concerning himself or herself with evidentiary issues. In other words, a person should not be released without charging merely because the method used to obtain the p/c was unlawful.
Lt. Jeff Mappa
1 Of course, I make no comment as to any other action that must be taken, e.g., C.R’s, notification to appropriate personnel , etc.↑
2 The exclusionary rule is a judicially created remedy which purpose is to deter police misconduct by excluding from the State’s Case in Chief evidence that was obtained in violation of the United States Constitution.↑
3 Although 725 ILCS 5/109-1 omits any reference to a p/c hearing, the United States Supreme Court has ruled that such a hearing is required for warrant less arrests; however, the states can decide what forum it will be held. In Illinois, it is generally the initial appearance. Other issues for the court at the initial appearance are: informing the defendant of the charge; advice def. of right to counsel; schedule preliminary hearing; and determine bail.↑
4 725 ILCS 5/109-3 (e) allows a defendant at the preliminary hearing or examination to move for an order to suppress illegally obtained evidence pursuant to Section 5/144-12 of the Code.↑
Any opinions expressed above are those of the author and do not necessarily reflect those of the CPLA.
