- Criminal Procedure
- Constitutional Law and Procedure
- Search and Seizure: Persons
- Search and Seizure: Evidence
- Interrogation and Confession
- Constitutional Violations: Remedies
- Digital Stories
Welcome to Criminal Procedure
As will become quickly evident, in our system of law, when we speak of “criminal procedure” we are referring to the limitations imposed on the actions of the various actors in the criminal justice system. In this class we will focus primarily on the issues relating to police conduct under the Fourth and Fifth Amendments to the federal Constitution. We will also address a few aspects of the First Amendment as it pertains to when the police, prosecutors and courts may restrict such behavior. Also, we will review the Sixth Amendment – the right to counsel and its effect on interrogation.
We will interpret and analyze case law so to expand criminal procedure beyond the ivory-tower of the classroom and focus on the real world impact of these rules. It is my goal for you to reflect on the issues, gain insight into the underlying process and learn innovative applications for old rules in new situations. Remember, all of this material is Microwave Safe and available in assorted flavors. But, you should avoid prolonged contact with the skin. If DROWSINESS occurs, it shouldn't be surprising.
Dr. Michael Thompson
Chapter 2: Criminal Procedure and the Constitution
By: Brianna, Jay, Bev, Arieus and Dillian
Constitutionalism “refers to the idea that constitutions adopted by the whole people are a higher form of law than ordinary laws passed by legislatures”. There are six different contrasting characteristics between laws and the constitutions.
1. Constitutions are a higher form of law that speaks with a political authority that no ordinary law or other government action can ever match.
2. Constitutions express the will for the whole people.
3. Constitutions always bind the government.
4. Constitutions can’t be changed by the government.
5. Only the direct action of the whole people can change constitutions.
6. Constitutions embody the fundamental values of the people.
The US constitution is the highest authority in criminal procedures; no other source can beat it. The government has to follow criminal procedure to detect and investigate crimes, apprehend suspects, prosecute and convict defendants, and punish criminals. The government can’t just go and do what they want when it comes to these certain types of things. According to the U.S. constitution, Article VI, the U.S. constitution is the last word in criminal procedure. However the constitution doesn’t come with an instruction manual and the U.S. Supreme Court is the one that interprets the constitution and no one else not even the U.S. president nor can congress interpret it.
Parallel rights are those rights that are “state granted that are similar to the U.S. Constitution and the Bill of Rights”. For example, every state constitution guarantees rights against self-incrimination and unreasonable search and seizures, as well as the right to counsel and to jury trial.
Procedural Due Process guarantees a fair procedure for deciding cases. Here are a few types of fair procedures that the Bill of Rights guarantees:
1. The right to probable cause to back up searches and seizures.
2. The right to grand jury indictment in federal cases.
3. The right against double jeopardy.
4. The right against self incrimination.
5. The right to a speedy trial.
6. The right to confront witnesses against the accused.
7. The right against excessive fines.
8. The right against cruel and unusual punishment.
9. The right against excessive bail.
10. The right to equal protection of the law in state criminal proceedings.
There are also many other Bill of Right guarantees in the fourth, fifth, sixth, eighth, and fourteenth amendments.
Judicial Review is where the “courts, and ultimately the U.S. Supreme Court, not the congress and not the president, have the final word on what the constitution means”. Judicial Review was established in the case of Marbury v. Madison.
The Fundamental Fairness Doctrine was established from two big cases which are Powell v. Alabama and Brown v. Mississippi. The Fundamental Fairness Doctrine is that due process is a command tot eh states to provide two basics of a fair trial:
1. Notice to defendant of the charges against them.
2. A hearing on the facts before convicting and punishing defendants.
From the 1930’s through the 1950’s, except for cases of extreme physical brutality like Brown v. Powell, where Mississippi and Alabama provided no real hearing at all, a majority of the Court continued to reject the claim that the Bill of Rights applied to state criminal justice. During the 1940’s and 1950’s, all the justices came to accept the idea the Bill of Rights does impose limits on state criminal procedure. However, the courts disagreed over exactly why and what those limits are. The fundamental fairness doctrine, the idea that some higher law than the Bill of Rights defined due process, fueled a great debate on and off the court. Finally in the 1960’s, a majority of the court defined the fourteenth amendment due process as applying the specific provisions of the Bill of Rights to state criminal procedure.
Samaha, Joel. Criminal Procedure. Thoman Wadsworth. 2008
Chapter 2 Criminal Procedure and the Constitution. Criminal Procedures protections in the Bill of Rights.
By Phillip Weilert
Under the constitution and the law of the land we have many different rights and protections that help the procedures in law and how it is run. We have over 20 different protections offered and ways that we can get help when we need it. These twenty different ways are:
1. The right to be free from unreasonable searches
2. The right to be free from unreasonable seizures
3. The right to probable cause to back up searches and seizures
4. The right to grand jury indictment in federal cases
5. The right against double jeopardy
6. The right to due process in federal cases
7. The right against self-incrimination
8. The right to a speedy trial
9. The right to a public trial
10. The right to an impartial jury
11. The right o have a jury made up of persons from the state and district where the crime was committed
12. The right to be informed of the charges against the accused
13. The right to confront witnesses against the accused
14. The right to a compulsory process to obtain witnesses in favor of the accused
15. The right of the accused to defense counsel
16. The right against excessive bail
17. The right against excessive fines
18. The right against cruel and unusual punishment
19. The right to due process of law in state criminal proceedings
20. The right to equal protection of the law in state criminal proceedings
These protections help everyone, no matter what charge you have going against you and just how steep the punishment can be. Without these protections it would cause a lot of unjust rulings, bails, and fines. Without the right against excessive bail, you can have a bail for over $1 million dollars for something as little as theft of a small fight. The right against excessive fines helps so that you don’t get a speeding ticket for thousands of dollars if you are only over the speed limit by a few miles per hour. The right to a speedy trial helps a lot so that you are not in jail for a long period of time when you have a minor charge or if you have a charge against that you think you can win an appeal at. All of these rights are in there place for a reason and help out in many different ways.
We can thank our founding fathers for putting these rights into the constitution. They saw the reasons why they needed these rights from there hard times with the king and all of the unjust things they went through with him. These rights have been in place for over 200 years and will be in place until the United States of America is gone. These rights are unchangeable since they are in they are protected by the constitution. They are from five different amendments, which are the fourth, fifth, sixth, eighth, and fourteenth. These are considered the last word in criminal procedure and are looked for rulings and rights given to the people.
With these rights, Justice John Marshall ruled that only the U.S. Supreme Court have the final word how to make these rulings and not Congress or the President of the United States. The Supreme Court can say where you can slip by a few of these or not and how you can exercise you right to do all of these rights against someone or in certain cases. Alexander Hamilton defended this and also said that the constitution is regarded by the judges as a fundamental law. Any court can interpret the Constitution but only the Supreme Court has the last word and its decisions bind all other courts.
Samaha, Joel. Criminal Procedure. Thoman Wadsworth. 2008
Chapter 3: The Definition of Searches and Seizures
By: Brianna, Bev, Dylan, Arieus and Jay
The History and Purpose of the fourth amendment:
The Fourth amendment was created to make sure that the government doesn’t use illegal methods to get evidence. When the fourth amendment was first created it had nothing to do with the law at all but rather the printing press. Back in the 1700’s English Monarchs had been sending out their agents to conduct search and destroy missions against printed criticism of the government. Well, the Crown didn’t like this and came up with the writs of assistance. The first part of the writs of assistance was called the general warrant, which allowed royal agents to search anyone, anywhere and of course anytime. The second part empowered the agents to order anyone who happened to be nearby to help execute the warrant. Now days however this writs of assistance has evolved. Back then the United States felt that the fourth amendment is to make sure the government has enough power to make the people safe and secure by looking for, getting, and using the evidence it needs to control crime, protect officers, seize suspects, and meet special needs beyond criminal law enforcement.
Up until 1967, the U.S. Supreme Court defined searches according to the trespass doctrine to amount to a “search”, officers had to invade physically a “constitutionally protected area”
What is a constitutionally protected area: persons, houses, papers and personal stuff.
Also according to the Supreme Court, searching of person that amounted to trespassing included touching their bodies, rummaging through their pockets, taking blood tests, and performing surgery to remove bullets.
In the Prohibition Era case, Olmsted v. U.S. Olmsted claimed that his defendants’ telephones were tapped without a warrant to find evidence of violations of alcohol laws. On this case the government collected more than 775 pages of notes from the wiretaps and based on this information indicted more than seventy people. The Supreme Court applied the trespass doctrine to the case and said that the fourth amendment didn’t include wiretapps. Well a guy named Justice Louise Brandeis agued with this call. Well than he eventually passed away and his dissent became law of the land. After he took over the trespass doctrine was replaced with the privacy doctrine.
Open Fields Doctrine:
The fourth amendment protects our right to be secure in our persons, houses, papers, and effects, but through its decisions, the supreme court had made it clear that this protection doesn’t extend to all places-namely, to open fields, public places, and abandoned property.
Open Fields Doctrine: “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects’ is not extended to the open fields”.
What isn’t considered open fields: Curtilage which is garages, patios and pools. The reason these items aren’t considered open fields is because this is where family and other private activities take place. The Supreme Court has identified the following criteria to determine whether an area falls within the curtilage.
1. The distance from the house
2. The presence or absence of a fence around the area
3. The use or purpose of the area
4. The measures take to prevent public view.
According to the U.S. Supreme Court, there’s no “reasonable expectation of privacy” But what does abandoned mean?
1. Physically giving up possession of something
2. Intending to give up the expectation of privacy.
Show-of-authority Seizures take place when officers display their authority by ordering suspects to stop, drawing their weapons, or otherwise acting such that a reasonable person wouldn’t feel free to leave or “otherwise terminate the encounter, and individuals submit to the authority.”
Samaha, Joel. Criminal Procedure. Thoman Wadsworth. 2008
Bev, Jay, Brianna, Dillian, Arieus
To begin with, lets get the facts straight. The ability to “stop and frisk” is not a new technique. In fact, it has been rooted back as far as the Middle Ages and the English were known to have performed “stop and frisks” on people they referred to as “nightwalkers”. Today the “nightwalkers” remain the same. They are people that may look or act suspicious and are subject to modern “stop and frisks”.
So what exactly is stop and frisk? Stop and frisk is defined as being temporarily detained and patted down after reasonable suspicion has occurred. The crime may have not even happened yet, but if there is reason to believe someone may be armed, then the person is subject to a frisk. A frisk requires a lawful stop and is used to make sure there are no dangerous weapons or illegal contraband on the person.
In order to engage a stop and frisk, two conditions need to occur.
Reasonable suspicion is based on a belief that a crime has occurred or is in progress. This means that to further investigate, the law enforcement officer then needs probable cause that a particular person can be tied to a particular crime. All things considered, this means that in order to conduct a stop and frisk, law enforcement must first have reason to believe someone is doing something wrong.
But what about our 4th Amendment right to the right to be free from unreasonable searches and seizures as well as the right to probable cause to back us searches and seizures?
Law enforcement must also be able to protect themselves as well as ensure the safety of society in general, but the stop and frisk technique and to the extent it is used may be seen by some as excessive use of power.
Now we have the Stop-and-Frisk Law which basically asks if a stop or a frisk occurred; if it was a stop or frisk was it reasonable; and finally, if that stop or frisk was unreasonable, evidence obtained would not be able to be used against the person in court. (Unreasonable stops or frisks must pass the reasonableness test. It makes sure the need to search is higher than the right to invading a person’s privacy; the balancing element, as well as maintaining an objective bias when deciding if there is enough reasonable suspicion to allow a search and seizure.)
In accordance to reasonable suspicion there are things that law enforcement see, hear, smell and touch that is referred to as direct information, and then there are things that law enforcement officers learn from victims, witnesses, other police officers and anonymous, professional, or paid informants. We refer to these secondhand facts as hearsay information.
This is true in the case of Terry vs. Ohio, in which has given rise to the Terry-Type stops. (The officer in this case conducted a pat-down search upon two men he suspected of casing a store and therefore may be armed. He conducted the pat-down after reasonable suspicion was established by first and secondhand observation and information. He then discovered that Terry was carrying a concealed weapon). Since then, automatic frisks have been allowed in crimes that are immediately detrimental to society such as robbery and burglary, rape, assault with a weapon (deadly or not) and illegal drug trafficking and large quantity dealing. Sadly, a lot of these especially dangerous crimes fall hand in hand.
There is also what we know as profiles. This is especially important in determining if there is drug trafficking occurring. Primary and secondary characteristics are taken into account such as (primary: using an alias or appearing unusually nervous) and (secondary: going to large area distribution cities often and making phone calls right after getting off a plane). But do these always point to drug distribution? Not always, but drug courier profiles have helped local, state and even DEA target, observe and possibly infiltrate large scale operations in the hopes of taking the major dealers down.
Once caught, frisks must still fulfill lawful elements. There are crimes that don’t justify automatic frisks such as (curfew violation, passing bad checks, prostitution and even trafficking small amounts of illegal drugs such as marijuana). There are also crimes that do justify frisks such as a suspect backing away from a law enforcement officer or not removing a hand from a pocket; possibly to pull out a gun or hide a bulge. In this case, more than an outer clothing pat down is required. If the officer feels that a hard object in a pat down is a weapon or even if it is suspected that something illegal may be contained in a handbag there is cause for a more invasive procedure.
Perceived as invasive or not, it is also to remember that the least invasive search is a frisk. Once something is found during a lawful routine frisk, then more invasive procedures such as full body cavity searches can be performed.
So we have discussed the reasons to stop and frisk, but how does it pertain to motor vehicles? In short, officers can freeze the situation to determine if suspicious behavior is occurring or not. These situations include removing passengers from a vehicle, whether it be a border check, roadblock or checkpoint. We tend to see a large amount of drug smuggling at international borders and so it may be a time consuming process during a frisk or search for illegal drugs as these criminals have evolved in trafficking techniques. For this reason, we have drug sniffing dogs that aid law enforcement in searches.
In conclusion, it is important to remember that officers can’t stop people without reasonable suspicion, but once they do, they can make all persons exit the vehicle; and that race and ethnicity can be taken into account in determining this. Whether it is a violation of individual liberty and privacy really depends on if you are hiding something or not doesn’t it?
Samaha, J. (2008). Criminal Procedure. Seventh Edition. Cengage Learning. Belmont, California.
Schmalleger Ph.D. F (2008). Criminal Justice: A Brief Introduction. Seventh Edition. Pearson Prentice Hall. Upper Saddle River, New Jersey
“Stop and Frisk Law & Legal Definition”. http://definitions.uslegal.com/s/stop-and-frisk/.
The word arrest means: The officer took the suspect to the police station and kept them there against their will.
Some people believe that getting arrested and getting stopped is the same thing, but they are different in a number of ways, such as:
- An arrest can go on for several hours, maybe even days, but stops only last a few minutes.
- During an arrest, the person is isolated, usuallt taken to the nearest jail or police station. Stops are usually take care of in public places.
- When an arrest takes place, a "rap sheet" is produced. Stops dont't require and written paperwork.
- During a stop, the suspect is not searched throughly.
- When a stop is in progress, the suspect is not interregated.
- Officers must have probable cause to arrest someone reasonably. Says the Fourth Amendment.
A reasonable arrest has to have two things. First, it has to have objective basis. Which means the officer had probable cause for arresting the person. Probable cause means that the officer has the facts as well as the right circumstances to believe that the crime has been, is being, or is about to be committed. Probable cause can differ from officer to officer. They have to make qiuck decisions. This information can come from hearsay or direct information. Hearsay is information that comes from someone else. And direct information is information that officers know themselves. There is also a certain manner in which the arrest is made. The officer has to reasonably arrest the person. They cannot do anything that is too much out of line.
Before an arrest can take place physically there a couple steps that must be done by the officer. First, they must get a warrant to step foot into the suspects place of residence. Many people already know this fact, that is why they feel comforable with someone answering the door when the police arrive. They feel as if they are safe at that present time. They belive they have some time to make a get away. In the case, U.S. V. Watson, Henry Watson was let go because the officer arrested him without a warrant. Something else that the officer must pay attention to is the amouunt of force they use while arresting the suspect. By law, the officer should only use a great amount of force while trying to gain and maintain control over the suspect they have arrested. Civilians feel as if sometimes law officers exceed the amount of force or that the officer applies too much force once they already have the suspect under control. If you resist arrest or act violently, the police are allowed to use reasonable force to make the arrest or keep you from injuring yourself. This issues has been the reason for a number of different court cases. Some bigger than others, but all are just as important. For example: "Tennessee V. Garner," where Edward Garner was shot and killed by an officer. His father, Cleamtree Garner, try to sue because he felt as if that was a violation of his sons Fourth Amendment rights. But the judge did not agree. Sometimes the law does not always work in the favor of the people.
After being arrested for a felony the suspect is taken to the police station for more processing. On the other hand, if they were arrested for a misdemeanor, in most cases they are set free shorthly afterwards. What happens once the arrest has already taken place is the biggest difference between a felony and a misdemeanor. That is a way to tell the difference between the two.
There are a lot of steps that are required for an arrest to take place. But these are needed to keep things safe as well as fair. Our society would be an even greater mess without these rules.
Samaha, J. (2008). Criminal Procedure. Seventh Edition. Cengage Learning. Belmont, California.
[[tab Sobriety Checkpoints]]
A sobriety checkpoint is a tool used by law enforcement to prevent drunk driving. Sobriety checkpoints are roadblocks set up normally on Friday or Saturday nights or early morning. The late nights are most commonly used to prevent holding up large amounts of traffic and also larger amounts of impaired drivers leaving bars. Sobriety checkpoints are legal and used in most states with only 11 that they have been found not constitutional in state law.
To be able to conduct legal Sobriety stops law enforcement officers have to know what they are looking for before setting up a checkpoint. Among the checkpoints used include proof of insurance, sobriety, and seatbelt usage checkpoints. Agencies are required to have procedures in place for all checkpoints. Roadblocks need to be planned ahead of time normally with the help of a prosecuting attorney to ensure that the checkpoint will be legal. Guidelines for who will be checked needs to be stated before the procedure begins. A checkpoint is supposed to be the least intrusive as possible while still being effective. A typical set up for a roadblock would be stop every third car. Some states allow for every driver of the cars that stopped and checked to undergo a breathalyzer test. If a drivers blood alcohol level is higher than the legal limit of 0.08 they will be charged with a DUI. It is possible to refuse a breathalyzer test but the punishment for refusing severe including the loss of the driver’s license.
It is believed that sobriety checkpoints are an effective way to deter drivers from driving under the influence. While the presence of DUI checkpoints does probably keep some people from wanting to drink and drive it isn’t as effective as some people would like. Setting up a road block and enforcing a checkpoint requires many more officers than what is required to have officers “roam” while looking for signs of impaired driving.
In 1990 the Michigan State Police created a sobriety checkpoint program. After only one checkpoint that lead to the arrest of two drivers for driving under the influence, the legality of traffic checkpoints was questioned in the case Michigan Department of State Police v. Sitz. In this case it was argued that Michigan’s sobriety checkpoint program was in violation of the fourth amendment. The case was taking to the State Court of Appeals were they again found that the random checkpoints violated the fourth amendment. The statement made by the court was that the checkpoints were not effective enough to intrude into citizens rights. The Supreme Court then looked that the case and made the roadblocks legal. Looking at the procedures the court stated that it was a violation of the fourth amendment in that it was an unlawful siezure with no backing of probable cause. Even though it is a violation of the fourth amendment it is believed to have only a slight intrusion into peoples rights. Due to the large amounts of drunk driving incidents and deaths it is a reasonable balance The vote was 6 to 3. Among the majority was Chief Judge Rehnquist who stated that the effectiveness of the checkpoints and ability to prevent drunk driving justified the exception. Among the opposing voters was Justice Stevens stated "the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative.“ Although the Supreme Court overruled the Michigan Court of Appeals on federal law Michigan’s state law and 10 other states have found it illegal by there own state constitution.
by Brad Dible
Jay, Bev, Aireus, Brianna, Dylan
Searches for Evidence
There are two types of searches for evidence, with a warrant and without one. The Fourth Amendment says that for a warrant to be issued there needs to be probable cause, supported by oath or affirmation, and describes the place to be searched and the person or things to be seized. There are three elements that are required to meet the warrant requirement: particularity, affidavit supporting probable cause, and the “knock and announce” rule.
1. Particularity – describe the place to be search and thee items to be seized.
2. Probable Cause Affidavit – set up probable cause and has to include evidence to support the claim that the items named will be found in the place to be searched.
3. The “Knock-and-Announce” Rule – knock and announce that they are officers with a search warrant before they enter places they are about to search. Officers also must wait a reasonable amount of time before breaking and entering.
There are five major exceptions to the warrant requirement that has been approved by the U.S. Supreme court: searches incident to arrest, consent searches, vehicle searches, and emergency searches.
1. Searches Incident to Arrest – they protect officers from suspects who might injure them, they prevent arrested suspects from escaping, and they preserve evidence that suspects might destroy or damage. The time frame includes time before, during, and after the arrest.
a. The Grabbable Area – According to Chimel v. California, law enforcement officers can search the arrested person and the area under his immediate physical control.
b. Robinson Rule – Officers can always search anyone they are authorized to take into custody.
c. Pretext Arrests – Arrests for one offense where probable cause exists, motivated by officers’ desire to search for evidence of another unrelated offense where probable cause does not exist.
2. Consent Searches – searches where individuals give officers permission to search them and/or their houses and personal belongings without warrants or probable cause. This is the easiest and most convenient way for officers to search a person, house or effects.
a. Test of Voluntary Consent – knowledge of constitutional rights in general, knowledge of the rights to refuse consent, sufficient age and maturity to make an independent decision, intelligence to understand thee significance of consent, education in or experience with the workings of the criminal justice system, cooperation with officers, attitude toward thee likelihood that officers will discover contraband, length of detention and nature of questioning regarding consent, and coercive police behavior surrounding the consent.
b. Third-party Consent – one lover consents to a search of the room shared with the other lover, one roommate consents to a search of an entire apartment, a homeowner consents to a search of the room that a houseguest occupies, a high-school principal consents to a search of high-school students’ lockers, a college dean permits a search of students’ rooms. There is both an objective (actual authority) and subjective (apparent authority) rule to decide if one person can consent for another.
3. Vehicle Searches – searches of all vehicles without warrant, as long as they are based on probable cause to believe they contain contraband or evidence. Because vehicles can leave the area and there is a reduced expectation of privacy. This search includes containers in the vehicle and of passengers in the vehicle.
4. Emergency Searches – based on the idea that it is sometimes impractical to require officers to obtain warrants before they search.
a. Officers’ Safety – justifies frisks or pat downs for weapons.
b. Destruction of Evidence – if they have probable cause to search, and they reasonably believe evidence is about to be destroyed, they can search without a warrant.
c. Hot Pursuit – another emergency created by thee need to apprehend a fleeing suspect. If they chase a suspect with probable cause to arrest, they can follow thee suspect into a house without a warrant.
d. Danger to the Community – if officers have probable cause to believe that a suspect has committed a violent crime or that they or others in the community are in immediate danger, they can search without a warrant.
Samaha, Joel. Criminal Procedure. 7th. Belmont, CA: Thomson Learning, Inc, 2008. 191-239
"Search Warrants: What They Are and When They're Necessary." Nolo. 2009. Nolo, Web. 30 Oct 2009. http://www.nolo.com/legal-encyclopedia/article-29742.html
By: Dylan, Brianna, Bev, arieus and Jay
There are many cases of special needs services. Special needs searches are searches allowed without using warrants or being court appointed. There are international border searches, airport searches, custody-related searches, prison searches, strip and body cavity searches, probationers and parolees, employee drug searches, and student searches.
International border searches are deemed necessary because we need to know who and what goes into and out of our country. We can search people who look suspicious of smuggling drugs, or people across our boarders. We can search anything out of the ordinary if it seems as though it could be holding something illegal. If something such as an envelope comes threw our government, and it’s heavier than average by far, it can be a know transport of narcotics.
Airport searches are allowed because we have a threat of terrorism in our country. We have to make sure drugs, weapons, bombs or anything threatening to our country is being passed through our airports. The way things are seen in airports, is a person has the right to not board an airplane if they do not want there stuff searched by metal detectors and x-ray machines.
Custody searches are things related to prisoners, their cells, and prisoner visitors and employees. In custody searches, they can be searched without warrants, probable cause and even sometimes any suspicion at all. Special needs searches are allowed purely to maintain safety, security, and discipline.
Strip and body cavity searches are a fourth amendment searches, but they are reasonable without warrants or probable cause if, in that situation, security, safety, or discipline outweighs a prisoner’s expectation of privacy. In 1979, the U.S. Supreme court ruled it was reasonable to have required strip and or cavity searches after every visit from a person from outside the jail.
Probationers and parolees have a diminished fourth amendment as well. Even though they are not locked up, they are sometimes considered still in the states custody. They are considered that because they could technically still be locked up if not for the state letting them out early. They could either be locked up or released and monitored. They are only monitored and possibly searched to make sure they hold true to genuine rehabilitation.
Employee drug searches are almost always used to uncover if the employee is a drug user or seller and if they are a danger to public or other employees. Any job can be hazardous if under the influence of alcohol and/or other drugs. Some jobs can be more hazardous to other people as well as yourself. A major job is something like a bus driver, pilot, or anything involved in a public service. The major problem with this is being able to search them without violating an employee’s privacy.
The last major one is student searches. These usually relate to such things as dormitory searches for such things as contraband like alcohol and/or drugs. In high schools, teachers are considered substitute parents while students are in school. Although they are considered substitute parents, they do have to have at least reasonable suspicion, but that’s all.
Samaha, J. (2008). Criminal Procedure. Seventh Edition. Cengage Learning. Belmont, California
Chapter 7:Special Need Searches
By: Autumn Preston, Keith Carey, Terry Steiner
When everyone hears and see the words searches they automatically think of ways for the law to collect evidence to use against you. The Supreme Court applied the Fourth Amendment to a wide range of searches that go past criminal law enforcement to meet special needs.
As stated in the Constitution the Fourth Amendment is the right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issues, but upon probable casue, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
As defined special needs are government inspections and other regulatory measures not conducted to gather criminal evidence. Special—need searches are broke down into six categories:
1. Inventory Searches: documenting inventory searches of persons and containers in government custody to protect the owners from theft and damage, government agencies from lawsuits, and jails from danger. Inventory searches have two important elements:
a. Balancing interest the government’s special need to inspect against the invasion of individuals privacy caused by the search.
b. Objective basis are regular procedures, not probable cause or even reasonable suspicion.
2. International Border Searches: conducting international border checks to control who and what comes into and goes out of the country.
3. Airport Searches: examining airport passengers and their baggage to protect the safety of travelers
4. Custody-related searches: searching prisoners, probationers, parolees, and visitors and employees of prisons and jails to control contraband.
5. Student searches: are searches of the students during the school hours to help maintain an environment where learning can thrive. In the court case Board of Education v. Earls, all students involved in sports activities must perform drug tests. Here is a example we are will have a good understand of: college students are entitled to a greater expection of privacy than high-school students, according the case Commonwealth v. Neilson.
6. Employee drug testing: testing employees for drug use to increase workplace safety.
A search is very logical if the governments necessitate over come the individual’s rights and must meet one of the three criteria:
1. Protect owners’ stuff while it’s in police custody.
2. Protect law enforcement agencies against lawsuits for the loss, destruction, or theft of owners’ stuff.
3. Protect law enforcement officers, detained suspects, and offenders from the danger of bombs, weapons, and illegal drugs that might be hidden in owners stuff.
Special-needs searches have four basic characteristics:
1. They’re directed at people generally, not just criminal suspects and defendants specifically.
2. They can result in criminal prosecution and conviction.
3. They don’t require warrants or probable cause.
4. Their reasonableness depends on balancing the government’s special needs against invasions of individual privacy.
Content of Tab No. 5.
Chapter 8: Self Incrimiantion
By: Autumn Preston, Keith Carey, Terry Steiner
Confessions are power evidence of guilt and remorse. Defendants confess their gilt or make incriminating statements in 4 different settings; they confess to friends and associates, who report these statements to officials. They confess during plea bargaining or while pleading guilty ( the most common setting); they confess during sentencing when making incriminating statements to show their remorse; they confess during police interrogations following their arrest.
The self-incrimination setting in police stations is strange and intimidating; suspects are searched thoroughly, have to stand in lineups, and are interrogated nonstop. As soon as police officers have shifted their search from a general investigation to building a case against an individual—the accusatory stage of the criminal process—the needs of law enforcement versus the interests of individual privacy and liberty carry higher stakes for both suspects and law enforcement. Defining the proper constitutional balance between laws enforcement needs and suspects’ privacy has created much controversy.
The importance of confessions and interrogation has 3 reasons whey Fred Inbau, professor of law and author, cited: police can’t solve many crimes unless guilty people confess or suspects give information that convict someone else; criminals don’t confess unless the police either catch them in the act or interrogate them in private; police have to use ‘less refined methods’ when they interrogate suspects than are ‘appropriate for the transaction of ordinary, every-day affairs by and between law-abiding citizens.” Some empirical research suggests that: interrogators rarely coerce suspects to confess; almost all interrogations last less than one hour; one in 4 suspects invokes his Miranda rights; 64% of suspects interrogate after they waive their rights incriminated themselves.
Interrogations leading to confessions aren’t recorded in most cases. Currently, only 2 states require officers to videotape interrogations. Arguments in favor of videotaping include; it creates an objective reviewable record. It enhances jurors’ and judges’ assessment of credibility by providing a complete record; it provides judges and juries with a more accurate picture of what was said, because words can convey different meaning depending on the intonation; it improves the quality of police work by providing both good and bad examples of training police interrogators.
The constitution and self-incrimination is the right to remain silent (against self-incrimination) is ancient and controversial. The due process approach is the basic idea that all confessions must be voluntary or they’re not reliable. The reliability rationale for due process is that admitting unreliable evidence to prove guilt denies defendants the right to their lives, liberty, and/or property without due process of law. According to the accusatory system rationale, forced confessions violate due process even if they’re true; under our system, the government alone has the burden of proving guilt. Because involuntary confessions are unreliable and contrary to the accusatory system of justice, all confessions are coerced if they’re not “ the product of a rational intellect and a free will.”
The self-incrimination approach helps to decide whether a police custodial interrogation was inherently coercive before formal charges were filed, the court relies on the 5th amendment. For defendants to claim the 5th amendment rights were violated, they have to prove; compulsion which is whether testimony was ‘compelled’ is measured by the totality of circumstances surrounding the statements.
Miranda v Arizona
The Miranda ‘bright-line’ rules include the supreme court intended the Miranda warnings to prevent police coercion while still allowing police pressure. Whenever police officers conduct a custodial interrogation, they have to give suspects the 4 warnings: you have the right to remain silent; any incriminating statements you make will be used in court; you have the right to a lawyer; if you can’t afford an attorney, one will be appointed for you. Circumstances that show custody; whether officers had probable cause to arrest; whether officers intended to detain suspects; whether suspects believed their freedom was significantly restricted; whether the investigation had focused on the suspect; the language officers use to summon suspects; the physical surrounding; the amount of evidence of guilt officers presented to suspects; how long suspects were detained; the amounts and kinds of pressure officers used to detain suspects.
The meaning of “interrogation’ means something different in the 5th, sixth and 14th amendment. The 5th amendment requires coercion; the 6th amendment doesn’t. the 5th amendment “functional equivalent of a question’ test provides less protection to suspects. Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. The 6th amendment “deliberately eliciting a response’ test provides broader protection for interrogated suspect and more restrictions on interrogating officers. As soon as the government starts formal proceedings, the 6th amendment right to counsel kicks in.
Content of Tab No. 6.
Chapter 9: Identification Procedures
By: Autumn Preston, Keith Carey, Terry Steiner
Relying on victims’ identification of strangers is risky even in ideal circumstances. Memory problems result in mistaken identifications of strangers. Acquisition of memory is the information the brain takes in at the time of the crime. The brain isn’t a DVR. Perceptions trump reality. We all pay selective attention to what’s going around us. The accuracy of witnesses’ observations depends on length of time to observe, distractions during the observations, focus of the observations, stress during the observations. Race affects the accuracy of identifications.
Retention of memory concerns the information the brain stores between the time of a crime and the lineup, show-up, or picture identification. Fading memory raises the risk of mistakes, memory fades most during the first few hours after the crime, then, it remains stable for months, confidence in our memory rises as its reliability actually fades.
Retrieval of memory refers to the information retrieved from memory at the time of the lineup, show-up or picture identification. There are 2 types of memory; recall and recognition, errors of omission result in failure to recall a key detail, errors of commission result in picking an innocent person in a photo array.
The power of suggestion can lead to misidentifications of strangers. Most misidentifications result from a combination of natural memory imperfections and suggestion (usually subtle and innocent). Suggestion is most powerful during the retention and the retrieval phases. Loftus’s memory bin research has provided much of what we know about the power of suggestion on witnesses; memories. Police identification procedures increase the power of suggestion.
Lineups are the least often used and the least unreliable. Their reliability depends on their makeup and the procedures used. IACP recommendations for their makeup include: 5 or 6 participants; similar race, ethnicity, and skin color, similar age, height, weight, hair color, and body build, similar clothing. The power of suggestion is one of the biggest threats to proper lineup procedures. Recommendations to reduce the influence of suggestions include: tell witnesses the suspect might not be in the lineup, use a blid administrator, if the witness identifies the suspect, immediately ask the witness how sure she is of her identification; use sequential, not simultaneous, presentation. It’s difficult to shake a witness’s confidence once he makes an identification, even if it’s wrong.
Show-ups are less reliable than lineups but used more frequently. The 3 common situations in which courts are most likely to admit show-up evidence include: accidental encounters between witness and suspects; emergencies; suspects on the loose. Mug shot (photo identification, by far, are the least reliable but also the most widely used. Their 2-dimensional nature enhances the inaccuracy of identifications made from them.
The constitution and identification procedures
Until the 1960’s, the Supreme Court adopted a ‘hands-off’ approach to admitting evidence from lineups, show-ups, and photo identifications. Stovall v. Denno 1(1967) established the due process basis for challenging identifications on constitutional grounds. Reliability is the linchpin. Defendants have to prove by a preponderance of the evidence 2 elements regarding a lineup, show-up, or photo ID: they were ”unnecessarily and impermissibly suggestive.” The procedure used created a “very substantial likelihood of misidentification.” 5 factors form the ‘totality of circumstances” courts use to determine witnesses’ reliability: Witnesses’ opportunity to view defendants at the time of the crime; witnesses’ degree of attention at the time of the crime; witnesses’ accuracy of description of suspects prior to the identification; witnesses’ level of certainty when identifying suspects at the time of the identification procedure; the length of time between the crime and the identification. It’s questionable to assume that reliability improves if a witness’s identification meets the reliability test. There’s some validity to the “opportunity to view the suspect during the crime” factor, but none of the other factors improves reliability.
DNA Profile Identification
DNA can potentially identify individuals or absolutely exclude them as suspects. Reliability issues arise not from technology but from DNA testing procedures. The three legal standards for admitting DNA profiles as evidence are: Frye test. It’s admissible if the technique has gained general scientific acceptance; Frye plus. It’s admissible if the technique has gained a general scientific acceptance and testing in the particular case followed accepted scientific techniques; Federal Rules of Evidence. It’s admissible if the relevance of the evidence outweighs any tendency to hurt unfairly the defendant’s case. Correct identification based on DNA depends on answers to three questions: Is a reported match between the sample at the scene of the crime and the sample from the suspect a true match? Is the suspect the source of the trace of DNA left at the scene of the crime? Is the suspect the perpetrator of the crime? Problems with use of DNA evidence in court include: Mistakes do happen, the match might be coincidental, prosecutors, experts, and jurors exaggerate the weight of DNA evidence.
Content of Tab No. 7.