1. Law, Justice, and Society: A Sociolegal Introduction
Chapter 6 Criminal Procedure

2. Criminal Procedure
Sets forth appropriate behavior for agents of the state if they deprive criminal suspects of their liberty
Derived from the due process clause of 5th and 14th amendments
Procedural law is a pendulum between due process and crime control models
Procedural laws attempt to balance the goals of these two models

3. Criminal Procedure Sources of Criminal Procedure Law U.S. Constitution
Bill of Rights
Fourteenth Amendment
State constitution
Federal and state statutes
Fourth, Fifth, Sixth, and Eighth Amendments
Supreme Court decisions
Sources of Criminal Procedure Law

4. Criminal Procedure Search and Seizure Law Warrant clause
all warrants must be based on probable cause
must describe the place or person with particularity
Reasonable clause
allow searches without warrants
probable cause and exigent circumstances
Probable cause
fluid concept- change to accommodate different situations

5. Criminal Procedure Arrest
Fourth Amendment prohibits unreasonable seizures
Seizure: the exercise of dominion or control by the police over a person or an item
Detention occurs when a reasonable person viewing the particular police conduct as a whole and within the setting would conclude that the police had restrained their liberty so that they are not free to leave

6. Criminal Procedure When an officer may arrest With a warrant
If the officer has probable cause
If misdemeanors occur in the presence of an officer, they may arrest
If felonies occur in the presence of an officer or outside of a private dwelling, they may arrest

7. Criminal Procedure Manner of Arrest
Whatever force is contextually necessary
Deadly force permitted to protect life
Knock and announce
must announce their presence and purpose
give occupant reasonable time to open the door
rule may be ignored in certain circumstances

8. Criminal Procedure Types of Seizures
May ask questions of anyone in public -- not an arrest or seizure
citizens may ignore or walk away -- does not constitute probable cause
“Seizure tantamount of arrest” requires more than mere suspicion, but not probable cause
traffic stops
border searchers for drug couriers
stop and frisks on street

9. Criminal Procedure Stop and Frisk Terry v. Ohio (1968)
Require reasonable suspicion based on experience
The stop: must be temporary and no longer than necessary under the circumstances
may ask questions to dispel suspicions and alleviate fears
The frisk: if the stop does not allay officer fears
pat-down of outer clothing
may not manipulate items they feel in order to discern what they are

10. Criminal Procedure Vehicle Stops
Seizure occurs whenever a vehicle is stopped (Delaware v. Prouse 1979)
Must have at least reasonable suspicion
except certain roadblocks
May ask the driver and passengers to exit and frisk (Pennsylvania v. Mimms 1977)
May request documentation, VIN, and ask other questions
May seek consent searches

11. Criminal Procedure Searches
The examination of an individual’s house, person, or effects to discover items related to criminal activity
Only applies to places where persons have a reasonable expectation of privacy
Reasonable expectation of privacy:
1. Subject of the search must have a subjective expectation of privacy
2. Society must view that expectation as reasonable

12. Criminal Procedure Exceptions to Search Warrant Requirement
Searches incident to arrest
“lunge area”
Consent
must be both voluntary and intelligent
must be limited to both area and time
require proper authority to consent
Vehicles
must demonstrate that there exists probable cause
must establish that the vehicle is mobile

13. Criminal Procedure Exceptions to Search Warrant Requirement (cont.)
Plain view:
“objects falling in the plain view of an officer who has a right to be in a position to have that view are subject to seizure” (Harris v. United States 1968)
must be immediately apparent
Open fields:
do not fall under protection of fourth amendment
may be achieved while trespassing
open fields is anything not within the curtilage

14. Criminal Procedure Exceptions to Search Warrant Requirement (cont.)
Abandoned Property:
not protected under fourth amendment
depends on where the property is abandoned and on intent of the disposer
Special needs of law enforcement
applied in cases that are a mixture of criminal investigation and conduct by other public agencies
student searches
probationers/parolees

15. Criminal Procedure Right to the Assistance of Counsel
Originally interpreted to mean that those who wanted and could afford counsel could not be denied such
Powell v. Alabama 1932: due process requires the appointment at government expense of defense attorneys for indigent defendants facing capital charges
Johnson v. Zerbst 1938 applied to all federal felony cases

16. Criminal Procedure Right to the Assistance of Counsel (cont.)
Gideon v. Wainwright 1963 applied these cases to the states
Argersinger v. Hamlin 1972: any indigent defendant facing incarceration for a felony or misdemeanor must be represented by counsel

17. Criminal Procedure Right to Counsel During Interrogations
Fifth amendment provides that persons shall not be compelled to incriminate themselves
Self-incrimination is permitted: voluntariness
Miranda v. Arizona 1966: before a custodial interrogation, a suspect must be informed of both his privileges against self-incrimination and right to counsel

18. Criminal Procedure Miranda Rights Right to remain silent
Anything they say can be used against them in court
Right to have an attorney present during questioning
If they cannot afford one, one will be appointed

19. Criminal Procedure
Powell v. Alabama (1932) Indigent defendants have right to free counsel in capital cases.
Johnson v. Zerbst (1938) Indigent defendants charged with serious felonies in federal courts have right to free counsel.
Gideon v. Wainwright (1963) Sixth Amendment applied to the states. Indigent defendants have right to free counsel in all felony cases.
Escobedo v. Illinois (1964) Suspects have right to counsel when the police cease making general inquiries and focus on a particular individual.
Miranda v. Arizona (1966) Suspects must be informed of right to counsel, as well as other rights, before custodial interrogation.
Argersinger v. Hamlin (1972) Indigent defendants have right to free counsel in misdemeanor cases as well as felony cases if facing incarceration.

20. Criminal Procedure Exceptions to Miranda Routine traffic stops
Sobriety check points
Conversations between two officers in vicinity of suspect
Voluntary statements without prompting
Routine questioning of persons at a crime scene
Clarifying questions
Questions which are part of stop and frisk
Threat to public safety

21. Criminal Procedure Extensions and Application of Miranda
Once fifth amendment is invoked, police may not question anymore, unless the suspect initiates further communication
Once invoked, they cannot be questioned about other crimes unrelated to the current offense
Police posing as an inmate
Police do not need to let a suspect know that they have a lawyer waiting for them if the lawyer was acquired by a family member

22. Criminal Procedure Extensions and Application of Miranda (cont.)
Illegally obtained confession may be admitted at trial to impeach the defendant’s testimony
Miranda rights may be waived
knowing, intelligent, and voluntary

23. Criminal Procedure Pretrial Identification Procedures
Suspect has a right to counsel at a line-up if it occurs after criminal charges have been filed

24. Criminal Procedure Confrontation of Witnesses Clause
Pointer v. Texas (1965) made the confrontation clause obligatory on the states
Crawford v. Washington (2004): the statements of absent witnesses may be admitted only when the witness is unavailable or if the defense had prior opportunity to cross-examine
unavailable should be read to mean that the witness is demonstrably unable to testify in person
does not guarantee the right to face-to-face confrontation at trial (sexual molestation trials)

25. Criminal Procedure Right to Compulsory Process Clause
Defendants have the right to compel favorable witnesses to appear in court to testify on their behalf
Must show the relevance of the proposed witness’s testimony and/or evidence and that such testimony would not be cumulative
Made applicable to states in Washington v. Texas (1967)

26. Criminal Procedure The Exclusionary Rule
Any evidence obtained by the government in violation of the 4th amendment guarantee against unreasonable searches and seizures is not admissible in a criminal trial for the purpose of proving guilt
Boyd v. United States 1886
Adams v. New York 1904
Weeks v. United States 1914—birth of the exclusionary rule

27. Criminal Procedure The Exclusionary Rule (cont.)
Weeks only applied to federal government
silver platter doctrine
Nardone v. United States 1939
fruit of the poisonous tree doctrine
Mapp v. Ohio 1961
applied exclusionary rule to states

28. Criminal Procedure Curtailing the Exclusionary Rule
Rakas v. Illinois 1978: in order to claim fourth amendment protection, a defendant must have standing
Means that a person has the right to bring legal action by virtue of being personally harmed
Independent Source Exception—evidence may be admitted if knowledge of that evidence is gained from a source that is entirely independent from a source tainted by illegality

29. Criminal Procedure Curtailing the Exclusionary Rule (cont.)
Attenuation Exception: illegally obtained evidence is admissible if there is less than a clear causal connection between the illegal police action and the evidence
Good Faith Exceptions: evidence obtained by the police acting in good faith is admissible; police must rely on others
Inevitable Discovery Exception: permits the introduction at trial of evidence that was illegally obtained if the officers can demonstrate that they would have eventually discovered the evidence

30. Criminal Procedure Advance of the Exclusionary Rule
Boyd v. U.S. (1886) Hint of an exclusionary rule based on the 5th Amendment.
Adams v. N.Y. (1904) Affirmed common law principle that evidence is evidence.
Weeks v. U.S. (1914) Formulated the exclusionary rule for federal cases.
Nardone v. U. S. (1939) Fruit of the poisonous tree first announced.
Wolf v. Colorado (1949) Applied the Fourth Amendment to states but not the exclusionary rule.
Mapp v. Ohio (1961) Applied the exclusionary rule to states.

31. Criminal Procedure Retreat from the Exclusionary Rule
Wong Sun v. U. S. (1963) Evidence is admissible if it is attenuated by it being sufficiently remote from the initial illegality.
Rakas v. Illinois (1978) Defendant must have standing to claim 4th Amendment protection.
Segura vs. U.S. (1984) Evidence is admissible if obtained from a source independent of any initial police illegality.
U. S. v. Leon (1984) Evidence is admissible if officers acted in good faith based on the actions of others; i.e., judges, legislators, etc.
Nix v. Williams (1984) Evidence is admissible if it would have inevitably been discovered by legal means.