1. Procedural Criminal Law What are the constitutional rights of the accused?

2. Historical Perspective: Key Bill of Right Provisions for Criminal Procedure Key Bill of Right Provisions for Criminal Procedure  4 th : Prohibition of unreasonable search and seizures  5 th : Prohibition against self – incrimination  5 th : Prohibition against double jeopardy  6 th : Right to counsel  6 th : Right to a speedy and public trial  6 th : Right to jury trial  6 th : Right to confront witnesses  8 th : Protection against cruel and unusual punishment

3. Historical Perspective: The 14 th Amendment: (1868) Section 1: “… No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of the law.”

4. Historical Perspective: The Warren Court  14 th Amendment “Due Process” clause virtually silent until the 1960’s  Warren Court infers 4 th,5 th, & 6 th amendment rights as being applicable to state actor’s as well federal via the “due process” clause  Causes a radical shift in police & court practices

5. 5 th: Amendment Protections  Protection against self-incrimination v. police interrogation  Miranda v. Arizona  Double Jeopardy: Being tried for the same crime twice

6. 6 th : Right to counsel  Gideon v. Wainright  A question of quality and fairness  Pro Bono v. Public Defenders

7. 6 th : Rights of Trial  The Right to a jury trial v. the pragmatism of plea bargaining  “Speedy Trial” in a clogged system  The science of jury selection

8. 8 th : Cruel and Unusual Punishment  Is the death penalty cruel and unusual?  A socio-economic bias?

9. 4 th : Prohibition of unreasonable search and seizures Seizure: exercise of governmental control over a person or thing Arrest: “a seizure of a person:” where a reasonable person would believe he/she is not free to leave because of either (1) an application of force by the police or (2) a submission by a show of force

10. 4 th : Prohibition of unreasonable search and seizures Q: What is an “unreasonable” therefore unconstitutional arrest ? (AKA seizure of the person) Q: What is an “unreasonable” therefore unconstitutional arrest ? (AKA seizure of the person) A: Did the situation require the police to obtain an arrest warrant? A: Did the situation require the police to obtain an arrest warrant?  Was the accused in the act of committing the crime?  Did the police have a reasonable belief a crime was about to be committed?  Did the police have a reasonable suspicion of imminent harm?  Was the accused in his/her home or a 3 rd parties home?

11. Stop-and-Frisk Rule Does not apply in all cases Does not apply in all cases “reasonable articulable suspicion” “reasonable articulable suspicion” Established by the totality of circumstances, e.g., suspect Established by the totality of circumstances, e.g., suspect Traveled from a source city of drugs Traveled from a source city of drugs Carried little or no baggage Carried little or no baggage Purchased airline ticket with cash Purchased airline ticket with cash Made one or more telephone calls at the airport Made one or more telephone calls at the airport

12. 4 th : Prohibition of unreasonable search and seizures Evidentiary search and seizure: The police’s taking of property from a person or place to establish a crime has been committed.  Q: What is an “unreasonable” therefore unconstitutional evidentiary s/s? 1. Who was conducting the search? 2. Did the accused have a reasonable expectation of privacy? 3. Given 1&2, did the police need a valid search warrant? 4. If police didn’t have a warrant, did the exigency of the circumstances justify a search without a warrant?

13. Hypothetical #1 The police suspect that Louis Lightfingers has stolen Billy Bigbucks watch. Without obtaining a properly executed search warrant, a police officer breaks into Louis’ home and finds Billy’s watch. The police arrest Louis.

14. Key Constitutional Doctrine The Exclusionary Rule In criminal law, if a judge rules the state ( the police ) violated a defendant’s 4 th, 5 th or 6 th amendment constitutional protected right, the judge may exclude evidence against the defendant which was obtained as a result of that violation. Mapp v. Ohio

15. Hypothetical #2 At the police station, Louis Lightfingers confesses to the crime. He also admits to having committed a string of several other burglaries. He tells the police that he sold all the stolen property to Paul’s Pawn shop to buy drugs.

16. Key Constitutional Doctrine “The fruit of a poisonous tree” Further, all evidence obtained or derived subsequently from the exploitation of evidence illegally obtained will also be excluded.

17. Key Constitutional Doctrine Exceptions to “the fruit of a poisonous tree” doctrine (or ways in which the causal link is broken) 1.Intervening act of defendant’s free will 2.An alternative independent source 3.Inevitable discovery

18. Hypothetical #3 Mrs. Nosy notices a suspicious man creeping around David Dopey house and calls the police. Officer Hedley is dispatched, believing that a burglary may be in process. In searching for the burglar, he goes to the shed in Dopey’s backyard. In the shed he finds a large number of marijuana plants growing under ultra violet lights. Officer Hedley never finds a burglary but does arrest Dopey for possession of an illegal substance with the intent to sell. Did Hedley’s legally seize the marijuana plants?

19. “One Arm’s Length” Rule Chimel v. California, 1969 Chimel v. California, 1969 “(R)easonable for arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist or affect his escape” to protect the safety of the officer “(R)easonable for arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist or affect his escape” to protect the safety of the officer

20. Plain View Doctrine Established in 1968, Harris v. United States Established in 1968, Harris v. United States Police may seize evidence Police may seize evidence Inadvertently discovered Inadvertently discovered In a place where police have a legal right to be In a place where police have a legal right to be

21. Motor Vehicle Searches Police may conduct warrantless searches of vehicles (automobiles, mobile homes, water vessels) with probable cause (involved in illegal activity) Police may conduct warrantless searches of vehicles (automobiles, mobile homes, water vessels) with probable cause (involved in illegal activity) Cannot randomly stop motorists to search for evidence of illegal activity Cannot randomly stop motorists to search for evidence of illegal activity Automobile parked on private property cannot be searched without a warrant Automobile parked on private property cannot be searched without a warrant

22. Consent Searches Police may conduct a warrantless search when consent is given voluntarily Police may conduct a warrantless search when consent is given voluntarily Bumper v. North Carolina Bumper v. North Carolina

23. Florida v. Bostick (1991) Police may board buses, trains, and planes and ask passengers to consent to being searched, without a warrant or probable cause Police may board buses, trains, and planes and ask passengers to consent to being searched, without a warrant or probable cause

24. Georgia v. Randolph (2005) Police may not enter a home to conduct a search if one resident gives permission but the other does not Police may not enter a home to conduct a search if one resident gives permission but the other does not

25. Border Searches United States does not need warrant to search those entering country United States does not need warrant to search those entering country Searches designed to seize illegal drugs and control illegal immigration Searches designed to seize illegal drugs and control illegal immigration United States v. Martinez-Fuerte (1976) United States v. Martinez-Fuerte (1976)

26. Electronic Surveillance Olmstead v. United States (1928) Olmstead v. United States (1928) Electronic eavesdropping does not violate individual's constitutional rights Electronic eavesdropping does not violate individual's constitutional rights Federal Communications Act of 1934 declared that no person who is not authorized by the sender shall intercept any communications Federal Communications Act of 1934 declared that no person who is not authorized by the sender shall intercept any communications

27. Katz v. United States (1967) Wiretapping (listening devices) on outside public phone booths Wiretapping (listening devices) on outside public phone booths Fourth Amendment issue Fourth Amendment issue

28. Kyllo v. United States (2001) Surveillance by the government, even without a physical intrusion, qualifies as an unreasonable search under the Fourth Amendment and requires a warrant Surveillance by the government, even without a physical intrusion, qualifies as an unreasonable search under the Fourth Amendment and requires a warrant

29. 4 th : Prohibition of unreasonable search and seizures  Since the 1960’s, one of the most debated arenas of criminal law; law school courses devoted solely to the subject  Crime Control v. Due Process  Burger / Rehnquist Courts shrink scope of the exclusionary rule doctrine  The Patriot Act: Today’s hot topic  Roberts court???

30. The Patriot Act Spying on the Homefront The Patriot Act Spying on the Homefront The Patriot Act Spying on the Homefront The Patriot Act Spying on the Homefront