Fundamentals of Policing
Adam J. McKee, Ph.D.
This content is released as a draft version for comment by the scholarly community. Please do not distribute as is.
The Legal Environment of Policing
In the United States, the law enforcement function is complicated by our system of dual federalism. Dual federalism refers to the fact that we have state as well as a federal government. This means that there are criminal laws on both the state and federal level, as well as law enforcement officers that enforce these laws at both levels.
Because of the supremacy of the federal constitution, law enforcement officers, no matter at which level of government they operate, must abide by the procedural restrictions set out in the United States Constitution. The Constitution is often referred to as the “supreme law of the land.” This phrase accurately suggests that if a law made by a state or federal legislature runs counter to the Constitution, it is null and void. The job of deciding just what the U.S. Constitution means falls upon the U.S. Supreme Court.
The U.S. Supreme Court, which is composed of eight justices and a Chief Justice (9 judges in all), considers not only the constitutionality of particular laws, but of particular policies and practices by agents of the criminal justice system. The body of law that governs how the criminal justice system treats people is often called procedural law or criminal procedure.
It is important here to understand a major division of the criminal law into two parts. There is the substantive criminal law, which dictates which acts are forbidden, and establishes penalties for doing those forbidden things (murder, rape, robbery, arson, theft, and so forth are examples). In modern America, the substantive criminal law is mostly a matter of statute. The procedural law, on the other hand, is mostly a matter of case law.
Case law comes to us from the written opinions of high court judges making rulings about matters of law. Under the common law legal doctrine of precedent (Stare Decisis), the holdings of the high courts are legally binding. In other words, high court cases are laws, just like statutes. Statutory laws are made by our elected representatives in the legislature, and court rulings are made by judges. Often this judge-made law is an interpretation of the Constitution.
Of special interest to police is the Bill of Rights. The Bill of Rights consists of the first ten Amendments to the U.S. Constitution. Many of the Founding Fathers feared a strong federal government and insisted that a guarantee of certain rights had to be included in the Constitution before it received widespread approval. These guarantees originally were intended to limit abuses of citizens by the federal government and had almost no impact on the administration of justice by the individual states. In other words, the U.S. Constitution’s Bill of Rights did not originally apply to local and state law enforcement officers—it only applied to federal officers. The Supreme Court of the United States explicitly adopted this view of the Bill of Rights in Barron v. Baltimore (1833).
Law enforcement in the United States is governed by laws that are grounded in the United States Constitution, as they have been interpreted by the United States Supreme Court. Due to the application of large portions of the Bill of Rights to the states (via the Fourteenth Amendment’s Due Process Clause), both state and federal law enforcement procedures are dictated by the U.S. Constitution. These legal mandates come in the form of Supreme Court decisions.
The Fourth, Fifth, and Sixth Amendments are the portions of the Bill of Rights that have the most impact on law enforcement activities. The procedural laws regarding searches, seizures, and arrests are all grounded in the Fourth Amendment. The General requirement is that a warrant, based on probable cause, is necessary for any of these activities. There are, however, many exceptions to the warrant requirement that the Court has carved out over many years.
The Fifth Amendment protects accused individuals from being compelled to incriminate themselves. The rule says that you cannot force people to make statements that can later be used against them in criminal court. The Sixth Amendment gives accused people the right to an attorney to represent them when they have been accused of a crime. This right applies to most stages of the criminal justice process (starting with custodial interrogations and the need to give Miranda warnings).
References and Further Reading
Modification History File Created: 08/15/2018 Last Modified: 08/27/2018
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.