Can Police Use Discretion When Investigating Crimes?

[roswell]

Hi. I am really hoping someone can help me out. A friend of mine is a fairly new police officer in county located in NYS. Recently, he was relating some "war stories."

He mentioned that late one night he stopped a pretty hot girl for running a stop sign. It turns out he determined she was under the influence of alcohol. When I mentioned how cool it must have been to place handcuffs on a hot girl, he replied, "I didn't arrest her."

I looked at him kinda cross-eyed and asked, "Can't you get in trouble for letting her go? "

He replied, "nah, cops can use discretion. We don't always make arrests for DWI and some other stuff like misdemeanors."

I was incredulous. I couldn't believe what I was hearing. I know zip about police work, but for some reason this did not sound right to me. I always thought the police had to arrest people when they discovered crimes were/are being committed. We had a discussion about this and he broke out a CPL. He showed me where the CPL says a police officer "may" make an arrest for a crime.

Even after showing me his law book, I am still not convinced police officers have the **lawful right** to ignore a crime being committed right in front fo them.

This is my quandry. I would be grateful if anyone can offer additional information about this issue.

TIA

[ogdogg16]

Now I'm not a cop, but that seems like bad news to me. If she was DWI, what if she later killed or injured someone on her drive home?? I've heard "stories" of people getting pulled over for DWI, and if the cop knows them or they have family that are cops, they will have someone come get them and the car to avoid the collar. The ethics there are questionable as well.
But to let someone go who was intoxicated is like playing russian roulette.
As far as discretion goes, cops can use it. Where the line is drawn (if there is one) I'm not sure of. It is the same as getting pulled over for speeding and getting off with no ticket.

[DepDog]

We can use whatever discretion we want too. We dont have all the facts in this scenario. How intoxicated was she? Was she given a ride home, and turned over to a responsible person? Sure the officer may set himself up for liability but that was his choice.

[corporal716]

We can use whatever discretion we want too. We dont have all the facts in this scenario. How intoxicated was she? Was she given a ride home, and turned over to a responsible person? Sure the officer may set himself up for liability but that was his choice.

Just like DepDog said. " We can use whatever discretion we want too. " I would also add within department policy.

I know officers do it, but there is a lot of liability with DUI.
Even giving them a ride home is not always a good idea. What if after getting home they decide to go for a beer run in their other car? Now the officer is liable for what ever that person does whill still intoxicated. :eek:

I used to always make the arrest.
NO one is worth retirement, my homes, my boat, & my cars.

[txinvestigator1]

When I mentioned how cool it must have been to place handcuffs on a hot girl,

:rolleyes:

[Jynkxxie]

Yes they can use discretion...but no officer I personally know would want that kind of liabilty in terms of the DUI.

[Bodhi]

I have heard of lots of discretion used in DUI stops (and seen it a bit). I think it's not uncommon here for an officer to let them get a ride from family/friend, etc. I have also heard of officers taking the car keys, telling them they can pick them up the next day, and that they need to figure out how to get home (walk, whatever), or something like that.
And I think that some of the motivation behind discretion is about the court system. Some officers use discretion b/c they think something about the offense and whether it's worth the court's time. The system is already so backlogged . . . I'm not saying that's good or bad, just saying it might be a factor.

[roswell]

I’d like to thank everybody who responded, BUT, nobody provided an authoritative answer to my question. The responses I read more or less tell me that a police officer is not acting in a manner consistent with his or her training and the law when he decides to let a drunk driver go.

But lets forget about the DWI scenario. How about if a police officer catches me committing a crime, not a traffic offense, a crime? Can an officer **lawfully** use discretion and let me go if he catches me committing a crime (misdemeanor or felony).

[txinvestigator1]

I’d like to thank everybody who responded, BUT, nobody provided an authoritative answer to my question. The responses I read more or less tell me that a police officer is not acting in a manner consistent with his or her training and the law when he decides to let a drunk driver go.

But lets forget about the DWI scenario. How about if a police officer catches me committing a crime, not a traffic offense, a crime? Can an officer **lawfully** use discretion and let me go if he catches me committing a crime (misdemeanor or felony).

You first must understand that the arrest of a person is not a method to punish the person. No person can be punished for a crime until proven guilty in a court of law.

An arrest is only one method to insure a person appears in court to answer for a suspected or alleged crime.

There are only a few instances, in Texas, where a LEO is required to make an arrest without a warrant. One is family violence.

From the Texas Code of Criminal Procedure


Text
Art. 14.01. Offense within view.† [Crime committed within view of
peace officer.]

(a) A peace officer or any other person, may, without a
warrant, arrest an offender when the offense is committed in his
presence or within his view, if the offense is one classed as a felony
or as an offense against the public peace.

(b) A peace officer may arrest an offender without a warrant
for any offense committed in his presence or within his view.


Text
Art. 14.02. Within view of magistrate.† [Offense committed within
view of magistrate.]

A peace officer may arrest, without warrant, when a felony or
breach of the peace has been committed in the presence or within the
view of a magistrate, and such magistrate verbally orders the arrest
of the offender.


Text
Art. 14.03. Authority of peace officers.

(a) Any peace officer may arrest, without warrant:

(1) persons found in suspicious places and under
circumstances which reasonably show that such persons have been guilty
of some felony, violation of Title 9, Chapter 42, Penal Code, breach
of the peace, or offense under Section 49.02, Penal Code, or
threaten, or are about to commit some offense against the laws;

(2) persons who the peace officer has probable cause to
believe have committed an assault resulting in bodily injury to
another person and the peace officer has probable cause to believe
that there is danger of further bodily injury to that person;

(3) persons who the peace officer has probable cause to
believe have committed an offense defined by Section 25.07, Penal
Code (violation of Protective Order), or by Section 38.112, Penal
Code (violation of Protective Order issued on basis of sexual
assault), if the offense is not committed in the presence of the peace
officer;

(4) persons who the peace officer has probable cause to
believe have committed an assault resulting in bodily injury to a
member of the person's family or household; or

(5) (As added by L.2003, chap. 460(2). See other subdivision
(5) below.) persons who the peace officer has probable cause to
believe have prevented or interfered with an individual's ability to
place a telephone call in an emergency, as defined by Section
42.062(d), Penal Code, if the offense is not committed in the
presence of the peace officer.

(5) (As added by L.2003, chap. 989(1). See other subdivision
(5) above.) a person who makes a statement to the peace officer that
would be admissible against the person under Article 38.21 and
establishes probable cause to believe that the person has committed a
felony.



Notice the word "may" in all of the above. Now in the following, note the word "shall".




Text
(b) A peace officer shall arrest, without a warrant, a person
the peace officer has probable cause to believe has committed an
offense under Section 25.07, Penal Code (violation of Protective
Order), or Section 38.112, Penal Code (violation of Protective Order
issued on basis of sexual assault), if the offense is committed in the
presence of the peace officer.

(c) If reasonably necessary to verify an allegation of a
violation of a protective order or of the commission of an assault
against a member of the family or household, a peace officer shall
remain at the scene of the investigation to verify the allegation and
to prevent the further commission of the violation or of family
violence.


Hows that?

[Joeyd6]

What part of New York? There is a difference between the city and upstate areas as far as standard departmental policy goes.....

[greg6099]

roswell: "...nobody provided an authoritative answer to my question...can an officer **lawfully** use discretion and let me go..."

Same question would have been asked when law enforcement first created and will no doubt be asked centuries from now. It is a moral, ethical and legal dilema that will never be answered. Without discretion we would create a 'Judge Dread' enforcment policy and wouldn't that be nasty?

However, I speak only for my jurisdiction, we have guidelines (written policy) that provides an officer 'with a discretion to prosecute'. Rather a lengthy section and details a number of things an officer may take into account when deciding to 'prosecute' (arrest) an individual.

To paraphrase the section, the Commissioner expects that his troops should 'zealously enforce the law'; but when dealing with people who are 'normally law abiding' then they should 'exercise discretion' when deciding to prosecute.

We look at things such as 'is it in the public interest to prosecute?'; the age of the offender, and is there another method of adequately dealing with the offence (ie community conference etc).

So the moral and ethical issue facing an officer 'in the heat of the moment' is to caution this person and send them on their way or do we arrest them?

[roswell]

However, I speak only for my jurisdiction,

Thanks for responding but I am interested in the law as it applies to American citizens and American police officers.

[roswell]

Joeyd6 wrote:

What part of New York? There is a difference between the city and upstate areas as far as standard departmental policy goes.....

Now I am really confused. I always thought the NYS legislature was responsible for determining how state laws are enforced. Are you saying each individual police department can make up it’s own rules about using discretion when enforcing laws promulgated by NYS law makers?

[roswell]

txinvestigator1 wrote:

(b) A peace officer may arrest an offender without a warrant
for any offense committed in his presence or within his view.

Notice the word "may" in all of the above. Now in the following, note the word "shall".

Thank you for responding but I am still confused. In the Great State of Texas, the law says a PO “may arrest” an offender without a warrant…

When the law says “may arrest,” does that mean a PO in Texas has the **lawful authority** to use discretion and not report a felony/misdemeanor OR make an arrest for a felony/misd that is committed in his presence OR reported to him by an eye witness to the crime?

If this is true, could you please provide a scenario where a Texas peace officer can use discretion and not arrest a person who he has probable cause to believe committed a felony or misdemeanor.

Again, thanks for your help.

[CopDawgGA]

I don't believe there is a definative answer to your question. Police use a measure of discretion in virtually every action they take. In very busy jurisdictions, it is not at all unusual to have to "catch and release" misdemeanor violators in order to respond to a more serious dispatch. I can recall having to not arrest a D.U.I. because I was dispatched to an armed robbery in progress. I held onto the driver's keys to try to protect myself from liability, but I had to make a decision on which "call" was more important, and of coarse, chose the armed robbery.

Arrests in the US are based on a judicial and constitutional standard called probable cause. Probable cause by its very nature is subjective, to a point. Some violations are clear cut to one officer, and not to another. This is not a problem because of the "innocent until proven guilty" idea. An arrest is just the first step, and by no means a conviction.....in any State.

Im clear that I have not yet completely answered your question. Can police use discretion when enforcing the laws of their respective State? Absolutely. Because of the issue of burden of proof, even domestic violence laws allow some flexibility because it is impossible to know all of the FACTS, every time. If the law forced us to make arrests on every perceived violation of law, we would be screwed. If we witnessed the crime, we are typically obligated to act by oath or policy, but even our well trained and experienced observation skills doesen't mean that what we "saw" was exactly what happened. Perception is not always reality. Departmental policies and case law allow officers to take intermediate steps, such as documentation, citation, etc., to allow for the subjective nature of human perception and probable cause.

I know, I know, still not an answer. When I work, I feel bound by personal pride, morals, ethcis, and a strong sense of civil and criminal liability. The choices I make at work will affect others for the rest of their life, and can potentially affect me and my family for the rest of my life. I believe that most officers try their hardest to do the right thing, every time......