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Roth Davies, LLC

Prosecuting a criminal case is not a quick event. Rather, it is an extended investigation in which the prosecution must begin with reasonable suspicion and then further develop that initial reasonable suspicion to persuade a jury to beyond a reasonable doubt. Reasonable suspicion begins with law enforcement, not the prosecuting attorney’s office.

The Incident

A criminal case starts with a statute being violated. Kansas has a wide variety of statutes, each of which affect almost every aspect of a citizen’s life. Some examples of statutes are those which tell you the speed limit and outlaw you from exerting control over another individual’s property. However, not all “wrong” acts are illegal. Statutes are made up of an array of acts, named “elements”, and a crime is only committed if each element has occurred.

An example is an individual, age 15, asking a friend, age 22, to buy her liquor to drink. Section 21-5607 establishes the act of an individual who buys or distributes an alcoholic beverage to someone underaged, as a crime. Now, if the friend has agreed to buy the liquor but then does not follow through with the act, the crime has not occurred. The friend cannot be in trouble for only contemplating the wrongful act. Now, if the friend agrees to buy the liquor, takes the money from the younger individual, drives to the liquor store but does not go inside, the crime has still not occurred as defined by Section 21-5607. The friend must buy the liquor for the crime to have occurred. Please note that some crimes can be charged as incomplete crimes (such as attempted murder) or planned but not completed (conspiracy to commit murder). In those instances, the charged offense is for the attempt or conspiracy, not for the completed crime. Only when all the elements of the completed crime are shown can the prosecution victoriously prosecute a person for that crime.

Law Enforcement Gets Involved

Once a wrongdoing has happened, the initial step is data getting to the police. This can happen rapidly and totally when an officer sees the full wrongdoing unravel. Envision the underaged girl accompanied her friend to the liquor store. When the friend comes out, they give the liquor to the girl and she drinks from the bottle. If an officer witnesses this situation, they could confront the vehicle and arrest the friend. Witnessing the crime provided the officer probable cause to believe the friend committed the crime, and that is sufficient proof to allow the officer to arrest the friend: no warrant required. The officer does not have to witness the entire crime develop, but rather only must witness enough to form probable cause that he has seen a crime been committed. Upon this, the officer can arrest the individual and they can be held while awaiting the determination to charge.

Law enforcement do not always witness a crime first-hand. Most times, other persons observe illegal activity (or what they presume to be criminal activity) and then report said activity to a police department, commonly using 911 or visiting the local police station. When information originates from a non-law enforcement officer (an “informant”), officers cannot automatically go and arrest someone. Instead, an investigation is opened which an officer will try to collect sufficient information to form probable cause that an illegal act has occurred. Methods officers attempt to collect this information includes witness statements, viewing the purported crime scene, and/or following persons of interest. All these methods are allowed to be implemented without a search warrant as they are outside the definition of a “search” under the Fourth Amendment.

Gathering Evidence

Police officers’ tactics on investigating possible criminal activity are significantly limited. The Fourth Amendment ensures that law enforcement officers do not allow these investigations to supersede a person’s right to have a private life free from state interference. As an illustration, a police officer can stop by a person of interest’s residence or place of employment to ask questions. However, the property owner can demand the police officer leave and can also refuse to answer any inquiries. Furthermore, if the person of interest is not home, the cops cannot enter the resident to search for evidence. Officers must obtain a search warrant before searching anywhere an individual has a “reasonable expectation of privacy.”

Please note, that “reasonable expectation of privacy” is a legal term rather than an accurate portrayal of where officers cannot search. Officers can “tail” a person of interest by following that person from location to location. To most, this would seem aggravating and unreasonable, but officers can go anywhere open to the public while investigating an alleged crime. Therefore, officers can park outside an individual’s home, even for multiple days at a time, without violating any “reasonable expectation of privacy.” In California v. Greenwood, the Supreme Court held that when a person places their trash cans on the curb for pick up, an officer can open and go through the cans without restriction. Although most people may consider these methods as highly unwelcome, courts have found them to be satisfactory approaches of searching without a warrant.

It is vital to remember that the protections under the Bill of Rights belong to each person. This means a person can refuse to use these rights. Officers will commonly come up to a person of interest desiring to ask questions. A person is not required to answer any of the officer’s questions, but the officers do not have to inform the person of this fact. Furthermore, if a police officer stops by a suspect’s residence and is invited in, that officer can collect any evidence of wrongful acts that are left out in the open in plain view.

Getting a Search Warrant

Law enforcement has one final, very dominant investigatory tool: the search warrant. Officers can present evidence to a judge that showcases probable cause to believe certain items related to the criminal conduct are present at a certain location. If the judge signs the search warrant, the officers can search the location over any objections the owner may have regardless of their reasonable expectation of privacy. Evidence found during these searches may be used in further investigating of the crime. Upon an adequate amount of evidence being found, law enforcement will transfer their findings to the prosecutor to obtain an arrest warrant for the person of interest.

Step 2 – Filing Charges After An Investigation

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