1. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport

2. ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Chapter 4 Constitutional Rights Before Arrest UNIT TWO: CRIMINAL PROCEDURE

3. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Introduction and Historical Background The colonists wanted to be left alone. One reflection of the American spirit of independence is the Constitution’s guarantee that the government can not conduct “unreasonable searches and seizures”; or arrest citizens except “upon probable cause.”  Evidence obtained in violation of the prohibition against unreasonable searches and seizures generally can’t be admitted into evidence, no matter how incriminating the evidence turns out to be. The Constitution also protects citizens from being tried repeatedly for the same crime after being acquitted, or double jeopardy. The government is prohibited from making ex post facto laws.

4. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Nor can governments pass bills of attainder. These three Constitutional protections help assure that citizens aren’t harassed or oppressed by their government through the use of the criminal process and assure that the laws are applied uniformly and fairly. The right against self-incrimination is an important safeguard that prevents the use of torture to extract confessions. Persons charged with crimes are also entitled to effective assistance of counsel and a reasonable opportunity to post bail. William Blackstone said, “It is better that ten guilty persons escape than that one innocent suffer.”

5. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  What is an Unreasonable Search? The Fourth Amendment to the Constitution provides that “The right of the people to be secure in their person, house, papers, and effects, against unreasonable searches and seizures, shall not be violated.” One of the key words in the Fourth Amendment is “unreasonable”.  Expectation of Privacy Searches are unreasonable if they unduly interfere with the people’s expectations of privacy. That is, if a person does not have a reasonable expectation of privacy in a place, the area can be searched without a warrant. People have an expectation of privacy in their homes.

6. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Unless an officer gets permission to enter, is acting in an exigent situation, or gets a search warrant, it is illegal for him or her to enter someone’s home or apartment. Essentially the higher the reasonable expectation of privacy, the greater the likelihood that the police can not invade that privacy. The Alaska Supreme Court concluded a person had no expectation of privacy at their office desk, since it was in an area accessible to other workers. No one has a reasonable expectation of privacy in things that are in plain view.

7. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Exceptions to the Rule The most obvious exception is consent.  The police are not required to educate you that you have the right to refuse a search or a stop and frisk if they come without a warrant. Three other exceptions are the automobile exception, the exigent circumstances exception, and the stop and frisk exception.  There is a reduced expectation of privacy associated with cars and other motorized vehicles. Carroll v. Illinois held that if the officer conducting the search had “probable cause” to have a warrant issued, but didn’t ask for one, the search was still valid.

8. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 Exigent circumstances are those situations in which the law enforcement officer believes that getting a warrant will create the risk of injury or death or result in the destruction of evidence.  The most obvious situation that qualifies as exigent is when a police officer is in hot pursuit of a defendant, either on foot or in an automobile.  The circumstances must truly be an emergency or involve the destruction of evidence. Police officers can also stop and frisk suspicious individuals.  Officers must have more than a suspicion about an individual; they must describe specific suspicious actions.

9. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 The Supreme Court recently explained that citizens are not free to refuse to give police their identify. If an officer conducts a Terry stop, the citizen stopped must provide his or her name and faces criminal penalties if uncooperative. One area of stop and frisk that has recently expanded is that of airport searches. Generally, persons entering the country can be frisked, and even strip-searches, based upon nothing more that their appearance and point of origin.

10. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Search Warrants and Probable Cause A police officer must present enough evidence to a magistrate of judge to show that there is probable cause to make an arrest or search the premises for evidence of criminal wrongdoing.  Probable cause means enough evidence to conclude that it is more likely than not that a crime was committed or that the place to be searches is connected with a crime. Once officers have a warrant in hand, they are supposed to “knock and announce” their presence. A question that often arises in criminal cases is whether the informant is credible enough to support the issuance of a warrant. The court uses a totality of the circumstances test. To meet Constitutional standards, a search warrant must describe specifically “the place to be searched and the persons or things to be seized.”

11. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  The Exclusionary Rule The Supreme Court adopted the exclusionary rule that makes inadmissible any evidence seized as a result of a violation of the Fourth Amendment, so that the evidence can not be used at trial against the defendant.  Double Jeopardy The Fifth Amendment to the U.S. Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb…”. Prosecutors only have one opportunity to present the case to a jury; if the case is botched or if evidence is uncovered later, the opportunity has been lost.

12. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458 The guarantee has several well-established exceptions, including:  Right to retry a suspect if the jury is deadlocked, or “hung”  Right to retry a suspect when an appellate court has ordered a retrial because of some error in an earlier trial  Right to try a suspect in federal court on federal criminal charges if a state court acquitted on state charges and vice versa  Right on retrial to ask for and get the death penalty if the defendant was originally sentenced to life in prison but appealed the conviction and won a new trial.  Retrial after Hung Jury When a jury is unable to reach a verdict of guilty or not guilty, the defendant may be, and often is, retried.

13. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Retrial after Reversal on Appeal Only the criminal defendant can appeal a conviction; the government can not appeal an acquittal. The remedy ordered by the appellate court is typically a new trial.  Trial in both State and Federal Court for the same act Another exception to the rule against double jeopardy is a second trial in the event a defendant violates the laws of two or more jurisdictions by one act.  A number of crimes have both state and federal consequences. The police officers who were acquitted in the beating of Rodney King were later tried and convicted in federal court for violating Mr. King’s civil rights.

14. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Ex Post Facto Laws and Bills of Attainder Ex post facto laws are laws that criminalize behavior after the behavior has already taken place. Bill of attainder are criminal statutes passed that make behavior a crime for only some persons and not others.  Right to Remain Silent The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself”.  The right against self-incrimination, or the right to remain silent, is fundamental to the American system of justice.  Since the Supreme Court’s decision in Miranda v. Arizona, law enforcement officers routinely read suspects their rights. This has become known as “mirandizing” a suspect. There are several exceptions to the rule.

15. Basic Criminal Law: The United States Constitution, Procedure and Crimes Anniken U. Davenport ©2006 Pearson Education, Inc. Pearson Prentice Hall Upper Saddle River, NJ 07458  Defendants can be compelled to provide some forms of physical evidence that can be used against them.  The second exception involves compelled testimony under a grant of immunity.  Right to Reasonable Bail Another fundamental right enjoyed by Americans is the Eighth Amendment guarantee against excessive bail.  Right to reasonable bail serves as an incentive for the government to bring cases to closure.  The right to bail allows the defendant to fully participate in his or her defense.  Bail can be denied altogether if the defendant poses a danger to the community.  Bail can be denied in capital cases, in cases where the defendant may intimidate witnesses, or in cases where the public’s safety is at stake.