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1-3 Constitutional rights

Policy Type: Local

Responsible Office: Chief of Police, Virginia Commonwealth University Police Department

Initial Policy Approved: 9/4/2013

Current Revision Approved: 9/4/2013

 

General

The purpose of this directive is to define the authority of officers to arrest, with and without a warrant, to establish the policy and procedures for receiving admissions and confessions, to establish the policy and procedures for safeguarding the constitutional civil rights of each person having contact with the department, without regard to race, creed, national origin, gender, age or economic status, and to help officers determine when contacts are necessary and useful and establish procedures for conducting them safely.

All citizens of this country, under the Constitution, are guaranteed certain basic rights. It is the policy of the VCU Police Department to safeguard these rights without bias, and to follow all laws and department policies, procedures and regulations to ensure that these safeguards shall not be denied any citizen. It is also the policy of the department to ensure the preservation of evidence and protect constitutional rights of arrestees. Short of the application of force, an arrest is the most serious action an officer can undertake. The most important legal question facing an officer at the moment of arrest is the existence of probable cause. Without probable cause, the arrest is illegal and the evidence of criminality that was obtained because of the illegal arrest is inadmissible. Accordingly, officers shall exercise critical judgment in making arrests. Critical judgment includes consideration for bystanders, the time, place and location of offenses, and the use of force in making the arrests. Officers shall consider alternatives to arrest consistent with the law enforcement mission.

 

Accountability Statement

All employees are expected to fully comply with the guidelines and timelines set forth in this written directive. Failure to comply will result in appropriate corrective action. Responsibility rests with the division commander to ensure that any policy violations are investigated and appropriate training, counseling and/or disciplinary action is initiated.

 

Procedures

  1. Constitutional rights with respect to arrest procedures are addressed in Written Directive 1-5 Arrest and Legal Procedures (for adults) and Written Directive 7-5 Juvenile Procedures.
  2. Constitutional rights with respect to field interviews and pat downs are addressed in Written Directive 6-5 Field Interviews and Pat Downs.
  3. Admissions/Confessions:
    1. Notification of Rights:
      1. Any individual in a custodial interrogation, regardless of the severity of the crime, is entitled to the benefit of the procedural safeguards set forth in Miranda vs. Arizona. (Berkemer vs. McCarty, 468 U.S. 420 (1984)).
        1. NOTE: The appointment of counsel pursuant to the Fifth Amendment right identified in Miranda is not charge specific. Thus, further police initiated interrogation, on any subject, in the absence of counsel is BARRED once the individual requests counsel.
      2. By reading to the individual, the admonition stated on the VCUPD‐8 Rights Waiver Form the legal requirements covering on‐scene arrests and interrogation procedures are complied with.
      3. If the individual’s primary language is one other than English, the interrogating officer(s) may use the AT&T language line to ensure understanding. Officers should also be aware that the Spanish interpretation of the VCUPD‐8 form is on the department’s server in the VCUPD forms folder.
      4. If the individual is hearing impaired, an interpreter shall explain these rights during an interview and/or interrogation prior to the individual’s statement.
  4. Constitutional Rights Advisement:
    1. The individual has an absolute right to remain silent, and the admonition must be in clear and unequivocal terms.
      1. This admonition is to be made because people may be unaware of this privilege, and it assists them in making an intelligent decision as to its exercise.
      2. The admonition is an absolute prerequisite to overcome inherent pressures of the interrogation atmosphere.
      3. The admonition must show the accused that the interrogators are prepared to recognize the privilege.
    2. It must be explained to the individual that anything said can and will be used against the individual in court.
      1. This is to make the defendant aware of the privilege or the right to remain silent and the consequence of foregoing it.
      2. In addition, this is to make the accused aware that they are not in the presence of persons acting solely in their interest.
    3. The individual must be clearly informed that they have a right to consult a lawyer and to have that lawyer with them during the interrogation. The accused must be warned not only that they have a right to consult with an attorney but also that, if they are indigent, a lawyer will be appointed to represent them.
      1. If the individual unambiguously indicates that they wish the assistance of counsel before any interrogation occurs, then the police cannot ignore or deny the request on the basis that the individual does not have or cannot afford to retain an attorney.
      2. The United States Supreme Court has stated that if an individual unambiguously indicates in any manner at any time prior to or during questioning that they want an attorney, the interrogation must cease immediately. This does not mean that an attorney must be appointed for an indigent person at that time, but it does mean that the interrogation must stop until an attorney is retained or appointed.
    4. When a person has been arraigned and has had counsel retained or appointed, the arrestee can no longer be questioned by the police without his/her counsel's consent. However, if a person has been arrested but not yet arraigned and the person has not clearly and unambiguously invoked his right to counsel, then police may question that individual.
    5. A waiver of rights cannot be based on the silence of the accused, but they must affirmatively make a voluntary and intelligent waiver. A waiver of these rights shall not be presumed, but the burden rests on the State to confirm that the accused knew, and intelligently waived, his/her privilege against self‐incrimination, and his/her right to retain or be appointed counsel.
  5. The Totality of Circumstances:
    1. Determining whether the individual’s statements are made voluntarily is based on the totality of the circumstances.
    2. To be considered voluntary, the individual’s statements must be a product of the individual’s own free will and not a result of police coercion or the imposition of an overriding will by the police. In other words, if an innocent person would not have confessed or made statements absent police conduct then the confession or statements are not voluntary.
    3. There shall be no threats or cajolery in obtaining the waiver or a confession.
    4. Factors to be considered in the totality of the circumstances are all of the following:
      1. Number of police present
      2. Place of the confession
      3. Age and mentality of the defendant
      4. Educational background of the defendant
      5. Public display of defendant as to radio, television and newspaper releases
      6. Length of the interrogation
      7. Other matters that might leave the impression that the confession was not voluntary
  6. Freedom of Speech and Assembly:
    1. All citizens of the United States are guaranteed the right to seek redress of grievances by:
      1. Freedom of speech
      2. Peaceful assembly
      3. Peaceful picketing
      4. Distribution of handbills, (providing such distribution is not in conflict law)
    2. The exercise of these rights must not:
      1. Conflict with the governmental responsibility to keep public streets and public facilities open and available for public use;
      2. Violate any law or ordinance; or,
      3. Include the use of inflammatory remarks related to any instance where a clear and present danger of a riot against any person or group of persons exists.
  7. Every necessary resource of the department will be employed to rapidly and decisively enforce statutes and ordinances that provide for the protection of the rights and property of all citizens. Within reason, the department shall ensure that adequate manpower, including supervisory personnel, is available to control and maintain order in every instance where crowds have formed or are expected to form.

 

Related Documents

  1. Written Directive: 1-5 Arrest and Legal Procedures
  2. Written Directive: 6-5 Field Interviews and Pat Downs
  3. Written Directive: 7-5 Juvenile Procedures

 

Revision History

This policy supersedes the following archived policies:

            None - New Policy