Discretion is one of the tools used by police officers discretion that allows them to adapt to changing conditions in society. This vital aspect of his position helps the officer to fairly and equitably apply and enforce the laws he has sworn to uphold. Using Discretion At some point in their lives, everyone uses discretion at one time or another. In the case of the police officer, however, discretion is an invaluable skill used in the performance of every aspect of his job function.
When an officer detains a person for any reason, he must be able to qualify and justify his reasoning for the stop. If he is unable to do so, he may find himself not only in an awkward situation legally, but potentially a life-threatening one. Officers use professional discretion in a myriad of ways, from the more mundane; pulling a vehicle over because an officer observed a motorist demonstrating suspicious behavior to entering a home without a warrant due to exigent circumstances. Either way, there must be a policy in effect to control arbitrary discretion.
Discretion under Control Controlling discretion should start long before the hiring process begins. The most suitable method would be a double-pronged test. The first examination would be a formal, standardized, psychological test followed up with an oral review of specific situations that an officer might run across on a daily basis. Once a candidate is hired, role-playing would be the next logical avenue to follow to hone and maintain an officer’s abilities to handle a wide variety of situations.
Another alternative for controlling discretion would be an agency’s use of mechanical devices to monitor common areas and generate automated enforcement documents. Photo radar, red light cameras and generalized video surveillance are three examples of such measures. This may be a viable option for satisfying the community and making sure that all laws are enforced free of bias or opinion. Using these methods, all applicable laws and policies are followed and discrimination is kept to a minimum. Full Enforcement: Smoke and Mirrors
Society is under the impression that police officers are in compliance with the complete, unilateral enforcement of all laws. This mythical aspect of policing does more harm than good in most situations since this false impression can lead to feelings of discrimination or persecution. The reality of the situation is that police officers have considerable, although unofficial, latitude in their decision-making process for day-to-day operations. “Officers are paid to make specialized decisions through a prism of their training, experience and totality of the circumstances. (Petrocelli, 2007)
Police officers are allowed to diverge from full enforcement for numerous reasons and in a wide variety of different manners. However, the law and departmental policy must set limits on the amount and extent of discretion on the part of the officers. To that end, a number of different scenarios can be examined and the implications of an officer’s judgment can be seen. Actions and Reactions Here are some examples of actions and reactions that can affect, or are the result, of an officer’s exercise of his discretion.
When it comes to the use of force, the police must exercise caution. For instance, when an officer finds himself with a suspect that he is absolutely certain knows the whereabouts of a kidnapped child. After a bit of hard core interrogation the suspect is still unwilling to give the location of the child. In order to obtain a confession, the officer might feel he is justified in using a considerable amount of force in acquiring this information. However, case law states that this would be an unreasonable method of obtaining a confession, even if a child’s life was at stake.
On the other hand, when exigent circumstances occur, a police officer is forced to use his discretion on the spot. A dispatched officer arrives at the scene of a homicide of a well-known resident. Repeated failed attempts to contact the victim’s spouse at his residence have created a sense of urgency among the officers to prevent any further unnecessary loss of life. In this case, entry into the residence without a warrant is justified. (Dempsey & Forst, 2005) This scenario leads us to another area of discretionary action: reasonable suspicion.
If an officer observes a person who appears to be carrying a concealed weapon, he is completely within his authority to conduct a stop and frisk. However, the officer must have more than just a “gut feeling”, he must actually have some reason to believe that the person has a weapon (e. g. a large bulge in the back of the shirt, the grip of a pistol protruding from a belt, etc). The officer cannot just randomly stop a passer-by on the street and frisk them simply because he thinks he might have a weapon. One common misconception is that all arrests by police officers require that the suspect be advised of his or her Miranda rights.
However, ‘Mirandizing’ a suspect is not always a mandatory procedure. For example, if a suspect has been arrested and charged with a crime but not read his Miranda rights, the only complication this causes for the police is that it precludes them from using anything the suspect says as evidence against him or her in court. It is conceivable that an officer has more than enough evidence to prove his case against the offender and it is reasonable for an officer to refrain from advising him or her of his rights in such a case. (Nolo, n. . )
However, should the police act on the information from non-Miranda statements or confession, any evidence found, is considered ‘fruit of the poisonous tree’ and is inadmissible in court. Lastly, the police can face the issue of denial of counsel. During a custodial detention interrogation, a suspect requests an attorney and the police inform the suspect that one will be provided. If the officer continues an adversarial conversation without the suspect’s legal counsel present, any information obtained in not admissible in court. Furthermore, once a suspect has requested an attorney, the officer must immediately cease the interrogation or they are in violation of the suspect’s civil rights.
Conclusion As we can see, the use of discretion on the part of the police is an integral part of their job. Without discretion, the police would have no choice but to enact a policy of full enforcement, which is likely to result in considerable distress among the communities. Control of discretionary behavior is vital, however, to ensure that discrimination is minimized and the law is appropriately enforced.