Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Basic Criminal Law – The U.S. Constitution, Procedure, and Crimes By Anniken U. Davenport CHAPTER 10: CONSTITUTIONAL RIGHTS BEFORE ARREST

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Chapter Objectives  Explain the constitutional protection against unreasonable searches and seizures  Give examples of searches that violate the Fourth Amendment  Explain what proof law enforcement must have before a search warrant will be issued Explain the steps that law enforcement officers must take in order to get a search warrant issued. List areas that can be searched without a warrant

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Chapter Objectives (cont’d)  Explain probable cause  Explain the exclusionary rule  Explain the right to remain silent  Explain double jeopardy  Define and explain ex post facto laws and bills of attainder  Explain the right to bail

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Introduction and Historical Background Unreasonable searches and seizures Double jeopardy Ex post facto law Bills of attainder right to remain silent right to bail

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved What is an Unreasonable Search? The Fourth Amendment provides protection against unreasonable searches and seizures as a way to protect citizens from overzealous law enforcement officers and judges eager to secure criminal convictions.

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved What is an Unreasonable Search? Expectation of Privacy searches are unreasonable if they unduly interfere with a person’s expectation of privacy; therefore, people, not places, are protected from unreasonable searches and seizures courts have ruled that people have an expectation of privacy in their own homes; therefore, a law enforcement officer must either be in hot pursuit of someone or have a valid warrant before searching a home

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved What is an Unreasonable Search? the courts have determined the ability to search other areas on a case by case basis; the general rule is that the higher the person’s expectation of privacy, the higher the likelihood that police cannot search it without a warrant

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Key Decisions Mancusi v. Deforte – holding that a police officer must have a warrant or permission from the employer before searching personal office space Minnesota v. Olson – holding that a law enforcement officer must have permission for the owner of an apartment or a warrant before searching the apartment for someone who does not live there Katz v. United States – holding that something in plain view carries no expectation of privacy; i.e., use of a public phone booth Kyllo v. United States – holding that thermal-imaging devices aimed to “see” inside of a home used without a warrant are a violation of the Fourth Amendment

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Exceptions to the Rule-Consent Consent – a person can waive the protections granted against search and seizure by giving their permission; law enforcement officers are not required to warn a suspect that he/she has the right to refuse a search or seizure consent can sometimes be given by the owner of a place where the suspect is located or by an employer in charge of the location landlords cannot give consent for an apartment search or seizure

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Exceptions to the Rule- Automobiles Automobiles – by their very nature, automobiles are mobile and are not usually homes; they carry a corresponding lower expectation of privacy probable cause – a police officer may search a vehicle if he/she has reasonable cause that would allow a warrant to have been issued if the officer had attempted to do so, because taking the time to seek a warrant would create the likelihood that the automobile would change location questions surrounding the use of roadblocks remain

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Other Exceptions Exigent circumstances – situations that require urgent actions, sufficient to excuse delay to obtain a warrant Stop and frisk – a police officer may stop and search an individual if he/she has a legitimate reason to suspect that person of criminal activity; more than simple appearance or ethnicity is required

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Search Warrants and Probable Cause Probable cause – amount of proof required before an officer can obtain a search warrant, stop a suspect, or make an arrest; requires enough evidence from which a reasonable person could conclude that the facts alleged are probably true generally, police are required to “knock and announce” their presence; there are limits to this requirement based on individual circumstances

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Search Warrants and Probable Cause (Cont’d) totality of the circumstances – for a warrant to be issued, a court will consider all of the circumstances in support of probably cause; i.e. an unknown informant coupled with independent police work confirming the informant’s information will be sufficient when considered in total a warrant must describe specifically “the place to be searched and the persons or things to be seized”

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Search Warrants and Probable Cause (Cont’d) Exclusionary rule – “fruit of the poisonous tree” doctrine; prohibits the admission of evidence obtained illegally at a defendant’s criminal trial; does allow use of evidence obtained with a technically defective warrant that was executed in good faith

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Wiretaps Federal Communications Act of 1934– Bars wiretaps without court order, but left rules to states Omnibus Crime Control and Safe Streets Wiretap Act of To obtain a wiretap a law enforcement office must show: that normal investigative procedures have been tried and failed, are unlikely to succeed or are dangerous; surveillance must be conducted in a way that minimizes the interception of irrelevant information

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Wiretaps (cont’d) Omnibus Crime Control and Safe Streets Wiretap Act of To obtain a wiretap a law enforcement office must show: that normal investigative procedures have been tried and failed, are unlikely to succeed or are dangerous; surveillance must be conducted in a way that minimizes the interception of irrelevant information; There must be probable cause to believe the interception will reveal evidence of one of a list of specific predicate crimes; The order must be authorized by a high-level Justice Department official and signed by a federal judge; and The order is time-limited to thirty days (the government can request an extension).

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Wiretaps (cont’d) Electronics Communications Privacy Act – extends Title III rules to s and other electronic messages. Patriot Act of Expands federal law enforcement authority to monitor and other electronic communications by treating stored voic messages like instead of telephone conversations. No warrant is necessary to access stored voice or . Federal courts can issue pen register and trap orders (devices that catalog the telephone numbers or addresses contacted by a particular person) throughout the nation. Law enforcement officials can now catalog the Web addresses visited by a computer without a warrant if they can show the information is “relevant to an ongoing investigation.” Roving wiretaps, where multiple telephones used by the same person may be tapped, eliminating the need to get a new court order each time a person of interest obtained a new cell phone.

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Wiretaps (cont’d) Patriot Act of New Crimes Money laundering in support of terrorism or cybercrime, overseas use of fraudulent U.S. credit cards, terrorist attacks on mass transit, and harboring terrorists. Increased penalties for counterfeiting. Law enforcement agencies are now permitted to share grand jury testimony and wiretap information with intelligence agencies if it meets the definition of “foreign intelligence.” Allows “sneak a peek” searches

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Double Jeopardy Fifth Amendment – a person cannot be tried twice for the same act; “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction” must be tried at the same time.

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Double Jeopardy-Exceptions Exceptions- The government can retry the case when: the jury is deadlocked and cannot render a verdict (Wade v. Hunter) an appellate court orders a retrial because of an error in an earlier trial only the defendant can appeal a conviction; the government cannot appeal an acquittal If the appellate court finds an error in the first trial, it may send the case back for another trial only in rare cases does an appellate court find that the errors were so egregious that a second trial would amount to a violation of protections against double jeopardy

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Double Jeopardy-Exceptions (Cont’d) state and federal crimes were committed defendant may be tried for federal crimes in federal court if acquitted in state court for state crimes, or vice versa petite policy – developed by the Department of Justice; prohibits federal prosecutors from prosecuting a defendant on state charges if the federal law violated in substantially similar to a state one, and the state has prosecuted the defendant on the same charges only in cases that would create a manifest injustice if the defendant were allowed to go free

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Double Jeopardy-Exceptions (Cont’d) When a defendant originally sentenced to life in prison wins a new trial on appeal, prosecutors may seek the death penalty during the second trial this rule was recently established in 2003; Sattazahn v. Pennsylvania

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Ex Post Facto Laws Ex Post Facto Laws – laws that make an activity a crime even if it was committed before the law was passed; prohibited by the Constitution because a crime is defined as an intentional act to disobey the law, and there can be no intent to disobey if the act is not against the law when it is performed, an ex post facto law violates the definition of a crime “three strikes and you’re out”

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Bills of Attainder Bills of Attainder – criminal laws that only apply to a specific person or specific group of persons; also prohibited by the Constitution

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Right to Remain Silent Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself” reflects the belief that it is the government’s burden to prove guilt and that the accused person should not have to contribute to this task police are required to inform suspects of this right when they are in custody of under arrest (Miranda v. Arizona)

Davenport: Basic Criminal Law, 2 nd ed.© 2009 Pearson Education, Upper Saddle River, NJ All rights reserved Right to Reasonable Bail limited right to be released from prison pending rail after posting enough security to assure appearance at the time of trial; right is subject to limitation in cases of murder or where release has been shown to pose a threat to the public