1. Criminal law Lecture 2

2. Our goal for the day To examine the Constitution and how it impacts criminal procedure To apply criminal statutes to the Applegate’s protest to see how to use criminal statutes from a prosecution and defense standpoint

3. Crimes and Constitutional Law When we discussed the Constitution you will recall that there are multiple Amendments that impact criminal law Over the years we have seen the Court provide greater protections to individuals Today we will take a quick look at Amendments 4, 5 and 6 and how they have impacted criminal procedure

4. Constitutional impacts on Procedure 4 th Amendment guarantees us protection from “unreasonable searches” and seizures A search is when the government conducts an investigation looking for evidence that intrudes on a person’s legally protected privacy. Note the 4 th Amendment only prohibits unreasonable governmental searches not private ones

5. Constitution and Criminal procedure There is a distinct preference for conducting a search with a warrant There are exceptions, however, including evidence in plain sight, emergency searches, to preserve evidence that may otherwise be lost, road side searches of cars, search incident to a lawful arrest, or hot pursuit

6. Constitution and Criminal law Warrants should issue with showing of probable cause However the courts has allowed some limited exceptions to this requirement as well The stop and frisk exception allows police to stop, question and sometimes search a suspicious person School searches, the 4 th does apply to students in schools but searches are to be judged by a reasonableness standard Drug testing for public employees

7. Constitution and Criminal Procedure If evidence is gathered in violation of the 4 th Amendment it is then excluded This does not mean a case is automatically dismissed however

8. Constitution and Criminal procedure 5 th Amendment protects against self incrimination This led to the Miranda v. Arizona, 348 U.S. 436 (1966) decision There are two requirements for this to apply 1. custody and 2 Interrogation. ( this is not what happens on TV) Recently in Berghius v. Thompkins, decided in 2009 the Court limited Miranda by saying that a defendant must specifically invoke the right to stay silent. Just staying silent does not invoke the right

9. Constitution and Criminal procedure Fruits of the poisonous tree doctrine prohibits the use of any improperly gathered evidenced at trial and also prohibits any information gathered as a result of the improper acts of the police In Brewer v. Williams, 430 U.S. 387 (1977) officers in an attempt to find a kidnapped child, discussed between themselves while transporting the defendant how her parents would like to be able to give her a “Christian Burial” The defendant had already asked for and been given a lawyer and no further questioning was to be done as the defendant was being transported. The defendant did lead the officers to the little girls body

10. Constitution and criminal Procedure 6 th Amendment provides that we have the right to have an attorney It does not say that we have a right to have the state pay for one. That came about as a result of a case Gideon v. Wainright, 372 U.S. 335 (1966). In that case the Court used the 6 th Amendment as well as the 14 th Amendment “due process” clause to create state paid lawyers for indigents. Prior to this there was some appointment of counsel on the federal level due to a legislative act of Congress but this brought the states in line as well. Since most crimes are state crimes, this was a major impact on the way criminal cases were handled.

11. Case Study Remember our friends the Applegate’s from Unit 4? Erica, age 17 and Matthew, age 15 with the encouragement of their parents John and Susan staged a protest on school grounds and burned a school uniform they had purchased for their protest on the front steps in a garbage can owned by the school. The smoke from the small fire caused some minor damage at the school, by leaving a small smoke stain on the brick, as well as minor charring to the garbage can. In this seminar we will approach this issue from two sides. First, you will assume the role of the county attorney. We will determine what charges, if any, should be brought. Later you will assume the role of the defense attorney for the Applegates. What defenses can we raise to the charges? How should we get started if we are the prosecutor?

12. Iowa Statutes Iowa Code 716.1 Criminal mischief is any damage, defacing, alteration or destruction of property by one who has no right to act Iowa Code 723.2 Unlawful assembly is 3 or more persons assembled together and acting in a violent manner with the intent to commit a public offense

13. Iowa Statutes Iowa Code 716.7 Trespass means 1 or more of the following 1. entering on or in property without the express permission of the owner with the intent to commit a public offense 2. entering or remaining on property after being requested to leave 3. entering for the purpose of unduly interfering with the lawful use of the property

14. Iowa statutes Iowa code 723.1 A riot is 3 or more persons assembled together in a violent manner and with any use of force or violence causing property damage Would this statute potentially face issues with being too broad under the Constitution?

15. Iowa Statutes Iowa Code 723.4 disorderly conduct where a person commits a simple misdemeanor when doing one or more of the following 1. engaging in violent or violent behavior excluding lawful athletic contests 2. making loud or raucous noise in the vicinity of private or public buildings with the intent to cause unreasonable distress to the occupants 3. using abusive epithets or threatening gestures which the person knows is likely to provoke a violent reaction

16. Iowa Statutes Disorderly conduct continued 4. when a person without lawful authority disturbs a lawful assembly 5. Falsely circulating warnings of fire, epidemic or other natural disasters 6. Disrespecting the flag ( Constitutional?) 7. Without authority or justification obstructing a street, highway or other public way

17. Iowa Statutes Iowa Code 712.1 Arson (Elements) 1. Causing a fire or explosion or placing any burning or combustible material, and 2. in or near property, and 3. with the intent to destroy or damage such property, and 4. or with knowledge the property will probably be destroyed

18. Iowa Statutes Arson continued 5. Except where a person owns the property intended to be destroyed or damages and 6. no insurance or fraud is involved and 7. the act does not unreasonably endanger the life or property of another

19. Iowa Statutes Iowa Code 709A.1 Contributing to the delinquency of a minor 1. to encourage any child under 18 to commit any act of delinquency under Chapter 232 2. to knowingly send or induce any child to a brothel for prostitution, permit use of alcohol, or engage in gambling or bookmaking

20. Iowa Statutes Delinquency continued 3. to knowingly encourage a child to violate state law or ordinance 4. knowingly permit a child to be guilty of vicious or immoral conduct 6. willful failure to support a minor

21. Applegate's Defenses available include the actions do not fit the crimes as set out in statute Constitutional exercise of their 1 st Amendment rights outweighs the state right of enforcing the criminal statute

22. Criminal law So using your prosecutorial discretion do you decide to bring charges against the Applegate's? What factors would you consider in making this decision?

23. Next Seminar We will turn our attention to the civil side of the law and discuss torts See you then!