2 The Constitution and Criminal Procedure


I.        Constitutionalism

A.      Is deeply embedded in our philosophy of government

B.      Constitutions are forever; laws are for now

C.     Six characteristics of constitutions

1.      Are a higher form of law

2.      Express the will of the whole people

3.      Always bind the government

4.      Can’t be changed by government

5.      Can only be changed through direct action by the whole people

6.      Embody the fundamental values of the people

II.     The sources of criminal procedure

A.      Criminal procedure—the method government has to follow to detect and investigate crime; apprehend, prosecute, and convict defendants; and punish criminals

B.      Sources of criminal procedure are

1.      U.S. and state constitutions

2.      Court decisions

3.      Statutes

4.      Administrative rules

C.     The U.S. Constitution and federal courts

1.      The U.S. Constitution trumps all other sources (supremacy clause)

2.      Courts interpret the Constitution’s general principles

3.      All criminal procedure has to answer to the Constitution and the courts’ interpretation of it (judicial review)

4.      The U.S. Supreme Court has more power over lower federal courts than over state courts

5.      The U.S. Constitution sets minimum standards for criminal procedure

D.     State constitutions and courts

1.      Most day-to-day operations of criminal procedure take place in state and local courts and law enforcement agencies

2.      State constitutions guarantee criminal procedure rights parallel to the U.S. Bill of Rights

3.      State constitutions can raise but not lower the minimum standards set by the U.S. Constitution

E.      Federal and state statutes and rules

1.      Statutes and administrative rules fill in the details of criminal procedure

2.      Some rules of procedure are found in statutes

3.      Courts formulate rules for proceeding in court

4.      Law enforcement agencies and prosecutors’ offices also adopt rules for their agencies

F.      Model codes and rules

1.      Most rules don’t address the period before arrest

2.      Most street encounters between police and individuals take place before arrest

3.      The American Law Institute adopted a model set of rules to fill the gap

III.   Due process of law

A.      Constitutional democracy couldn’t survive without the due process guarantee of fair procedures (when you see “due process,” think “fair process”)

B.      Until the Civil War, due process was a guarantee directed only at the national government, not the states

C.     The Civil War created on paper a national right to due process, but, in practice, criminal procedure was left entirely to the states

D.     The fundamental fairness doctrine

1.      Debated from 1900 to 1960

2.      Fundamental fairness—due process is not frozen in the Bill of Rights; it’s forward looking and responds to evolving standards of fairness

3.      Contains two basics:

a.      Give defendants notice of charges against them

b.       Ensure a fair hearing of the facts

4.      Fundamental fairness was the rule until fears of totalitarian police states abroad and racist criminal justice at home stirred fears of arbitrary government

5. Incorporation—due process is shorthand for Bill of Rights criminal procedure guarantees

E.      The incorporation doctrine

1.      During the 1960s due process revolution, the U.S. Supreme Court ruled that due process required states to guarantee the criminal procedure rights in the Bill of Rights to state criminal justice

2.      Two parts of the expansion:

a.      Apply national standards to state court proceedings

b.       Extend judicial supervision beyond the courtroom to police encounters with individuals in police stations and on the street and other public places

3. National supervision of state court proceedings was reluctantly accepted, but extending federal court supervision to police stations and the street set off a firestorm of controversy

IV. Equal protection of the law

A. Constitutional democracy couldn’t survive without a guarantee of equality before the law

B. Equality before the law is more than a slogan; it’s a constitutional command

C. Since the Civil War, it’s a command to federal, state, and local governments

D. Equal protection doesn’t mean state officials have to treat everybody exactly alike; they can’t use unacceptable classifications by group characteristics, especially race or ethnicity

E. Proving government discrimination requires a very high burden of proof; claimants have to carry the burden, and, in practice, rarely succeed




I.        Remedies against officer misconduct

A.      Two types of remedies

1.      Remedies affecting the outcome of the state’s criminal case against defendants—exclusionary rule and defense of entrapment

2.      Remedies sought in separate proceedings

a.      Criminal prosecution of officers

b.       Civil lawsuits to sue officers, departments, and/or municipalities

c.       Administrative review of police misconduct

B.      Remedies aren’t mutually exclusive (don’t have to choose among them)

C.     No constitutional right to exclusionary rule or defense of entrapment

II.     The exclusionary rule

A.      U.S. has the only criminal justice system in the world where courts throw out “good evidence” because government used “bad methods” to get it

1.      “Good evidence” means evidence that can help prove defendant’s guilt

2.      “Bad methods” means conduct that violates

a.      Fourth Amendment ban on unreasonable searches and seizures

b.       Fifth Amendment right against self-incrimination

c.       Sixth Amendment right to counsel

d.       Fifth and Fourteenth Amendment rights to due process of law

B.      History

1.      No mention of the exclusionary rule in the Constitution; James Madison believed it was implied in the judicial power

2.      1914, Weeks v. U.S.—U.S. Supreme Court created the rule

a.      Applied only to federal courts

b.       Covered only private papers and belongings

3.      1920, Silverthorne Lumber Co. v. U.S.—Court expanded rule to cover evidence indirectly based on illegal government action (“fruit of the poisonous tree”)

4.      1925, Agnello v. U.S.—Court expanded the rule to cover contraband

5.      1949, Wolf v. Colorado—Court applied the Fourth Amendment but not the exclusionary rule to state proceedings; states could decide remedy for themselves

6.      1961, Mapp v. Ohio—Court applied the exclusionary rule to state criminal proceedings

7.      1984, U.S. v. Leon—exclusionary rule is not a constitutional righ; it’s a device to protect constitutional rights

C.     Justifications

1.      Constitutional right—the 4th, 5th, 6th, and 14th Amendment rights wouldn’t mean anything without the exclusion

2.      Judicial integrity—courts shouldn’t participate in unconstitutional behavior by approving it

3.      Deterrence—prevent unconstitutional conduct by government officers

D.     Scope

1.      Scope of the rule is restricted because of the belief that the social costs of freeing guilty people and of undermining the prosecution’s case are too high to keep good evidence out of court

2.      Rule restricted to the government’s casein-chief at trial

3.      Exceptions

a.      Collateral use—illegally obtained evidence is admissible in all nontrial settings (bail hearings, preliminary hearings, grand jury proceedings, habeas corpus proceedings)

b.       Cross-examination—prosecution can use illegally obtained evidence to undermine defense witness’ (including defendant) credibility

c.       Exceptions to “fruit of the poisonous tree” rule; basic idea is government shouldn’t be in a worse position after illegal conduct

(1)    Attenuation—originally tainted evidence is admissible if the totality of circumstances in the case proves that the poisonous connection between police illegality and the evidence has weakened enough

(2)    Independent source—originally tainted evidence is admissible if after violating the Constitution, officers get the same evidence in a totally separate lawful action

(3)    Inevitable discovery—originally tainted evidence is admissible if police law-breaking produced the evidence but the evidence would have eventually been discovered anyway

E.      Illegally seized (arrested) persons

1.      Illegally arrested persons aren’t fruit of the poisonous tree, so they can be produced, tried, and convicted in court

2.      Courts don’t ask how individuals got to court (that’s a police matter)

F.      Reasonable good-faith exception

1.      Applies only to evidence obtained by search warrants that later turn out to be illegal

2.      Evidence obtained during execution of an illegal search warrant is admissible only if government can prove

a.      Officer honestly relied on the legality of the warrants

b.       It was reasonable for officers to believe the warrants were legal

3.      Rationale—there’s no deterrent effect if officers honestly and reasonably believed the warrants were lawful

G.     Non–law enforcement government officials

1.      Prevention of government unconstitutional behavior is the only justification for the exclusionary rule

2.      Rule applies to police because they’re deterred by exclusion

3.      Rule doesn’t apply to judges and other court personnel (like clerks), because there’s no evidence exclusion would deter their misconduct

III.   The defense of entrapment

A.      Criminal cases are dismissed if the government pressured defendants to commit crimes they wouldn’t have committed without pressure

B.      Encouragement isn’t entrapment

C.     Line between entrapment and encouragement determined by two tests

1.      Subjective test focuses on defendants’ predisposition to commit crime

a.      Defendants have the burden of presenting some evidence of two elements

(1)    They had no predisposition to commit the crime

(2)    Government pressure caused them to commit the crimes

b.       If defendants meet their burden, the government has to prove the defendants were predisposed

c.       The government can prove disposition by any of a variety of circumstances related to

(1)    Conduct of the defendants—prior criminal activity

(2)    Character of the defendants—reputation

2.      Objective test focuses on behavior of law enforcement

a.      If the government’s actions would induce an ordinarily law-abiding person to commit the crime

b.       The case should be dismissed

3 Searches and Seizures


I.        Searches and seizures

A.      Crime control in a constitutional democracy depends on information

B.      Most information comes from reluctant sources

1.      Criminals

2.      Suspects

3.      Victims

4.      Witnesses

C.     Special-needs searches go beyond searches for evidence of crime; they

1.      Protect officers

2.      Protect property of detained suspects

3.      Protect officers from lawsuits

4.      Detect drug use among students and employees

5.      Prevent drunk driving

D.     Purpose of the Fourth Amendment

1.      Searches and seizures were aimed originally at sedition (criticism of English monarchs) and tax evasions, not crimes against persons (like murder) and their property (theft)

2.      Balance government power and individual rights

a.      Give government enough power to control crimes

b.       Protect individuals’ right to be let alone by the government (not by private individuals)

3.      Ensure only “reasonable” searches and seizures take place

4.      “Reasonable” limit meant to protect individuals’ rights to

a.      Locomotion—come and go as they please

b.       Privacy

E.      Three-step Fourth Amendment analysis

1.      Was government action a search or a seizure?

2.      If it was, was it reasonable?

3.      If it was unreasonable, should evidence be excluded?

F.      Degrees of objective basis required

1.      All searches and seizures require an objective basis (facts to back them up)

2.      Three stages of Fourth Amendment–based encounters between police and private individuals

a.      On the street and other public places

b.       At the police station

c.       In jails before and in prisons after conviction

3.      Each creates progressively deeper invasions of liberty and privacy

4.      The greater the government invasion, the greater the objective basis needed to back it up

II.     Searches

A.      Definition—government actions that invade a person’s expectation of privacy

B.      Becomes a search when it invades a reasonable expectation of privacy (when society is prepared to recognize the expectation as reasonable)

C.     Theory and practice

1.      Theory—balance the power of government to control crime against individuals’ right to be let alone by government

2.      Practice—balance is weighted in favor of government power

D.     Plain-view discoveries aren’t searches

1.      Plain-view searches (nonsearches), discovery of evidence by ordinary senses (sight, touch, smell, and hearing), aren’t searches

2.      Three conditions to meet plain-view doctrine requirements

a.      Officers are lawfully present at the scene

b.       Officers don’t enhance their ordinary senses by hi-tech devices

c.       Discovery is inadvertent (by chance)

E.      High-tech enhancements don’t meet the plain-view standard

1.      Technology in wide use and easily obtained (flashlights and glasses) isn’t high-tech

2.      Technology rarely used and not easily obtained (X ray and thermal imaging) is high-tech

F.      Unprotected places

1.      Open fields discoveries aren’t searches

a.      No reasonable expectation of privacy in open fields

b.       Open fields don’t include curtilage (area immediately surrounding house) judged by

(1)    Distance from house

(2)    Fences

(3)    Use or purpose of area

(4)    Measures taken to prevent public view

2.      Public-place discoveries aren’t searches if they’re in

a.      Publicly owned (sidewalks, parks, stadiums) areas

b.       Businesses open to the public (restaurants and stores)

c.       Parts of business not open to the public

3.      Abandoned property not protected by Fourth Amendment

a.      Abandonment includes two elements

(1)    Physical—giving up physical possession

(2)    Mental—intention to give up expectation of privacy

b.       Test of abandonment

(1)    Burden on government to prove

(2)    Totality of circumstances judged on a case-by-case basis

III.   Seizures

A.      Officers don’t subject individuals to Fourth Amendment seizures when they approach and question them

B.      Individuals don’t have to stop or talk to officers who approach them, unless officers “seize” them

C.     Stopping because of psychological pressure or a sense of public duty doesn’t qualify as a Fourth Amendment seizure

D.     Two types of seizure

1.      Physical detention (grabbing)

2.      Submission to official show of authority

4 Stop and Frisk

I.        Stops, frisks, and the Fourth Amendment

A.      The discretionary power to stop and question suspicious persons is ancient

B.      First challenged during the 1960s due process revolution

C.     Stops and frisks

1.      Fourth Amendment stops are brief detentions, allowing officers to briefly freeze situations to investigate them

2.      Fourth Amendment frisks are once-over-lightly pat-downs of outer clothing to protect officers from concealed weapons

3.      Stops and frisks most often take place on the street and other public places

4.      Stops and frisks are the least-invasive invasions of liberty and privacy but they affect a lot more people

D.     Fourth Amendment seizures include everything from brief stops on the street to long detentions in jail

E.      Fourth Amendment searches include everything from outer-clothing pat-downs to body-cavity searches

F.      Stop-and-frisk law

1.      Three-step analysis

a.       Was the action a stop or frisk?

b.       If it was a stop or frisk, was it reasonable?

c.        It was reasonable, should evidence be excluded?

2.      Consequences:

a.      If action wasn’t a stop or frisk, the Fourth Amendment doesn’t apply; no further court analysis, action left to officer discretion

b.       If action was a stop or frisk, then proceed to decide if either was reasonable

c.       If the stop or frisk was unreasonable, then proceed to decide if evidence has to be excluded

G.     Two approaches to Fourth Amendment analysis

1.      Two parts to the amendment

a.      Reasonableness clause

b.       Warrant clause

2.      Conventional and reasonableness approaches by the Court

a.      Conventional approach, reasonableness depends on two elements

(1)    Warrant

(2)    Probable cause

b.       Reasonableness approach

(1)    Reasonableness depends on two elements

(a)    Balancing—the need to search outweighs the invasion of individual liberty and privacy

(b)     Objective basis—level depends on the kind of seizure or search

i.        Reasonable suspicion required for stops and frisks

ii.     Probable cause required for arrests and full-blown searches

iii.   Both require individualized suspicion—suspicion that points to specific individuals

(2)    Case-by-case totality-of-circumstances test (not “bright line”) used to determine both elements

H.     Terry v. Ohio and Stop and Frisk

1.      Stop-and-frisk law responded to practical problems of checking out suspicious strangers on the streets of big cities

2.      Conflict—officers don’t have probable cause to arrest but they can’t just let them go, and yet to stop and frisk them is a serious invasion of their personal liberty and privacy

3.      Three possible interpretations of the Fourth Amendment

a.      Leave response to officer discretion because stops aren’t seizures and frisks aren’t searches, so the amendment doesn’t apply

b.       Ban officer response unless there’s probable cause to arrest or search

c.       Even though stops are less-invasive than arrests, and frisks are less-invasive than full-blown searches, officers must back them up with facts

4.      Court created a middle ground between banning the police from doing anything and leaving what they do entirely to police discretion

a.      Officers can “freeze” the situation to conduct a brief on-the-spot investigation if they reasonably suspect that criminal activity may be afoot

b.       Officers can conduct a superficial search for weapons to protect themselves, if they reasonably suspect the persons stopped may be armed

II.     Stops and the Fourth Amendment

A.      Fall somewhere between voluntary encounters and full-blown arrests

B.      Two elements of reasonable stops

1.      Objective basis of reasonable suspicion

2.      Scope of stop

a.      Short duration

b.       Location of the investigation is near the scene of the stop

C.     Reasonable suspicion

1.      Definition—the totality (whole picture) of articulable facts (nameable) leads officer to suspect a crime may be afoot

2.      Types of articulable facts

a.      Direct information

b.       Hearsay, including anonymous tips plus corroboration

c.       Race plus other articulable facts and circumstances

d.       Profiles plus other articulable facts and circumstances of individualized suspicion

D.     The scope of reasonable stops

1.      Two elements

a.      Duration has to be brief

(1)    No specific time limit      

(2)    Reasonableness depends on the totality of circumstances

b.       Location of the investigation has to be near the scene of the stop

(1)    Not limited to exact spot

(2)    General vicinity included

(3)    Removing suspect from general vicinity can be reasonable in “extraordinary” circumstances

III.   Special situation stops

A.      Removing passengers from stopped vehicles

1.      No reasonable suspicion needed

2.      Officer safety outweighs trivial invasion of passenger rights

B.      Stops at international borders

1.      Objective—balance

a.      Government interest in border control

b.       Rights of persons entering country

2.      Interest in controlling borders justifies substantial reduction in individual rights of freedom of movement and privacy

3.      Can detain suspects for longer period based on reasonable suspicion

C.     Roadblocks

1.      Strong interest in preventing crime and apprehending criminals

2.      No individualized suspicion required

3.      Random stops satisfy the objective basis requirement

IV.   Frisks and the Fourth Amendment

A.      Frisk is a pat-down of outer-clothing to detect a concealed weapon after a Fourth Amendment stop

B.      Differences between stops and frisks

1.      Frisks are searches; stops are seizures

2.      Purpose of stop to investigate crime; purpose of frisk to protect officers

C.     Elements of reasonable frisk

1.      Reasonable stop before the frisk

2.      Reasonable suspicion (not belief) the person stopped may be (not is) armed

3.      Scope of frisk consists of an outer-clothing pat-down to discover and seize weapons (not contraband or evidence)

5 seizures of persons: Arrest

I.        The issues of arrest

A.      Definition

B.      Reasonableness

C.     Post-arrest actions

II.     The definition of arrest

A.      More invasive than stops

1.      Duration—lasts longer than stops

2.      Location—suspects are moved from the place of the stop

B.      Arrest is a zone, not a point on a spectrum of invasions

1.      From seizures lasting slightly longer, where suspects are moved beyond the immediate vicinity (but not taken to the station) when there’s no emergency

2.      To full custodial arrest lasting days in confinement accompanied by booking, mug shots, searches, interrogation, and lineups

III.   Reasonable arrest

A.      Two elements

1.      Objective basis, in which the arrest is backed up by probable cause

2.      The manner of arrest was reasonable

B.      Probable cause

1.      Purpose—balance social interest in crime control and individual right of locomotion

2.      Decision making

a.      Police officers make a preliminary decision about probable cause

b.       Judges review and make the final decision later

(1)    Decision is based on day-to-day reality of police officers who have to make quick decisions on the street

(2)    Decision is not based on what judges would decide in the leisurely atmosphere of their chambers

3.      Can include hearsay and direct information

4.      The totality of circumstances determines whether the objective basis adds up to probable cause

C.     The manner of arrest

1.      The totality of circumstances determines the reasonableness of the manner of arrest (the way the suspect was arrested)

2.      Arrests with warrants

a.      Most arrests don’t require warrants to make them reasonable

b.       Elements of lawful warrants

(1)    Neutral magistrate decides probable cause before officers arrest

(2)    Officer swears to the truth of facts supporting probable cause in an affidavit

(3)    Person to be arrested is named in the warrant

c.       Warrants are required to enter homes to arrest suspects, except in emergencies (“hot pursuit”)

3.      Arrests by force

a.      Deadly force arrests are the most talked about; nondeadly force arrests are the most common

b.       Deadly force

(1)    Common-law rule—use of deadly force is justified when it’s necessary to apprehend a fleeing felon

(2)    Tennessee v. Garner—the reasonable manner requirement is satisfied if

(a)    Deadly force is necessary to apprehend “dangerous” suspects

(b)     Use of deadly force doesn’t put innocent people in danger

c.       Nondeadly force

(1)    The amount of force was reasonable if it was necessary either to apprehend a suspect or get control of a suspect already apprehended

(2)    The reasonableness of force is judged by the totality of circumstances

(3)    The motive of the officer isn’t relevant

IV.   After the arrest

A.      Felony arrests—suspects are taken to a police station for further processing

B.      Misdemeanor arrests—suspects usually are released

6 Searches for Evidence


I.        The power to search

A.      Crime control depends on searches

B.      The Fourth Amendment balances the need for searches and the invasion of individuals’ privacy resulting from searches

C.     Two types of searches

1.      With warrants

2.      Without warrants

II.     Searches with warrants

A.      The Fourth Amendment requires officers to get search warrants but exceptions to the warrant requirement result in far more searches without than with warrants

B.      Warrant requirements

1.      Particularity

a.      Describe the place to be searched

b.       Describe the things to be seized

2.      Probable cause affidavit containing facts supporting the claim that the evidence listed in the warrant will be found in the place to be searched

3.      “Knock and announce”

a.      Officers have to knock, identify themselves as officers, and pause briefly before entering places to be searched

b.       Exceptions

(1)    Prevent violence

(2)    Prevent destruction of evidence

(3)    Prevent escape

III.   Searches without warrants

A.      Most searches fall under exceptions to warrant requirements because of the needs and preference of law enforcement

B.      Five major exceptions to warrant requirements

1.      Searches incident to arrest

2.      Consent searches

3.      Vehicle searches

4.      Container searches

5.      Emergency searches

C.     Searches incident to arrest

1.      Don’t require warrants or probable cause

2.      Requirements

a.      Lawful arrest

b.       Limited to person arrested and “grabbable area”—area under immediate control of arrested person

c.       Vehicles included in “grabbable area” (New York v. Belton)

d.       Time frame—before, during, and after arrest as long as there’s probable cause to arrest

3.      Searches incident to misdemeanors

a.      Misdemeanors have to qualify for custodial arrest—for example, moving traffic violations

b.       Search doesn’t apply to citations

4.      Searches incident to pretext arrests

a.      Powerful investigative tool in drug law enforcement

b.       Scenario

(1)    Officer has a hunch but no objective basis that suspect is carrying contraband (almost always drugs)

(2)    Officer has probable cause to believe suspect has committed a crime unrelated to drugs (typically a traffic violation)

(3)    Officer uses the pretext of a traffic arrest to search for drugs

c.       U.S. Supreme Court in Whren v. U.S.—as long as officers have probable cause to arrest, the motive for the search incident to it is irrelevant

D.     Consent searches

1.      Significance—consent searches involve waiving the constitutional right against unreasonable searches

2.      The test of consent

a.      Whether a suspect voluntarily consented is measured by the totality of circumstances

b.       Knowledge and waiver of right to refuse consent is one circumstance but not required

c.       Burden to prove voluntary consent is on the government

3.      The scope of consent

a.      Depends on how broad officers believe the consent to be

b.       Does not depend on what the consenting person intended the scope of the search to be

4.      Withdrawing consent

a.      Not clear whether consent once given can be withdrawn during a search

b.       Model Code of Pre-Arraignment procedure adopted the rule that a search has to stop immediately if the person withdraws consent

5.      Third-party consent searches

a.      One person can give up another person’s right against unreasonable searches if the person has the authority to consent for the other person—for example, a parent consents for a minor child

b.       Test of authority to consent for another

(1)    Test isn’t actual authority of person to consent for another

(2)    Test is apparent authority—namely, officers’ reasonable belief the third person had authority to consent

E.      Vehicle searches

1.      Searches of vehicles based on probable cause don’t require warrants

2.      Two reasons

a.      Mobility of vehicles

b.       Reduced expectation of privacy

3.      Personal containers belonging to passengers found in the car can be searched

F.      Container searches

1.      Require probable cause to believe there’s evidence of crime inside the containers

2.      Reasonable expectation of privacy in containers is greater than in cars but less than in homes

G.     Emergency searches

1.      Rationale for no warrant and sometimes no probable cause—impractical and even dangerous to get a warrant or require probable cause

2.      Frisks to protect officers based on reasonable suspicion

3.      The need to prevent the destruction of evidence justifies an exception to the warrant requirement if officers have probable cause to believe evidence is about to be destroyed

4.      The need to apprehend a fleeing felon entering a house removes the need to get a warrant

5.      Officers can sidestep the warrant requirement if they have probable cause to believe a suspect has created an immediate danger to the community or committed a violent crime

7 Special-Needs Searches


I.        Special needs vs. the expectation of privacy

A.      The Fourth Amendment applies to special-needs searches beyond searches for evidence of a crime

B.      Common characteristics of special-needs searches

1.      Directed at everybody, not just criminal suspects

2.      Can result in criminal prosecution and conviction

3.      Don’t require warrants or probable cause

4.      Balancing test of Fourth Amendment reasonableness

a.       Special need

b.       Individual privacy

II.     Inventory searches

A.      Definition—making a list of people’s personal property and containers held in government custody

B.      No need for warrant or probable cause

C.     Balancing test of reasonableness

1.      Protection of three special needs

a.      People’s personal “stuff” and their containers

b.       Law enforcement agencies from lawsuits

c.       Officers, suspects, and defendants from the dangers posed by smuggled-in bombs, weapons, and drugs

2.      Invasion of individual privacy

D.     Objective basis

1.      Routine written procedures substitute for individualized suspicion

2.      Routine written procedures guarantee against using inventory as a pretext for searches for evidence of a crime

III.   International border searches

A.      Reasonable even without warrants or probable cause

B.      Special government need to control what enters and leaves the country outweighs the invasions of individual privacy

C.     Objective basis

1.      Routine searches—none

2.      Strip—reasonable suspicion

3.      Body cavity—probable cause

IV.   Airport searches

A.      Reasonable even without warrants or individualized suspicion

B.      Balance

1.      Special needs of passenger security and safety

2.      Minimal invasion of passengers privacy with advance notice they’ll have to go through metal detectors and pass baggage through X-ray machines

C.     Objective basis

1.      No individualized suspicion required

2.      All passengers affected by the same routine procedure of metal detectors and X-ray machines

V.      Custody-related searches

A.      Applies to

1.      Prisoners (in jails before conviction and in jails and prisons after conviction)

2.      Probationers and parolees

3.      Visitors and employees

B.      Reasonable even without warrants or probable cause

C.     Balances

1.      Safety, security, and discipline in prisons

2.      Significantly reduced expectation of privacy of individuals

D.     Prisoners

1.      General

a.      Greatly reduced expectation of privacy society is prepared to recognize

b.       Surveillance the order of the day in prisons

c.       No “iron curtain” between prison and constitution

2.      Balance need for security, safety, and discipline against prisoners’ reduced right against unreasonable searches and seizures

3.      No objective basis required for shakedowns because they’re not Fourth Amendment searches

4.      Strip and body-cavity searches are protected by the Fourth Amendment but only to the extent they require reasonable suspicion (not probable cause) to back them up

E.      Probationers and parolees

1.      Searches of probationers and parolees don’t require warrants or probable cause to be reasonable (probation and parole are privileges, not rights, so probationers’ and parolees’ rights are substantially reduced)

2.      Balancing approach—special need to protect community from convicted criminals free in the community outweighs probationers’ and parolees’ Fourth Amendment rights (probationers and parolees are still in custody even though they’re released into the community)

F.      Visitors and employees

1.      Searches are reasonable even without warrants or probable cause

2.      Balancing test of reasonableness

a.      Special need to prevent smuggled drugs, weapons, and money from entering prisons

b.       Substantially reduced expectation of privacy for prison employees and visitors

3.      Objective basis

a.      No individualized suspicion needed for

(1)    Pat-downs

(2)    Removal of outer clothing

(3)    Emptying pockets

(4)    Screening by metal detectors

(5)    Inspection of papers, books, and containers

b.       Substitute for individualized suspicion—carried out in a “manner least likely to embarrass or delay the passage” (Black v. Amico)

4.      Strip searches are different—individualized reasonable suspicion required

VI.   Student searches

A.      High school

1.      Reduced expectation of privacy in school

2.      Searches reasonable even without warrants or probable cause

3.      Balancing test

a.       Special need to preserve safe learning environment

b.       Reduced expectation of privacy for high-school students

4.      Objective basis—individualized reasonable suspicion required to search students and their lockers

B.      College

1.      Circumstances different from high school

a.      Searches are usually of dorm rooms (“home away from home”)

b.       Law enforcement usually participates (municipal or campus)

c.       College students are entitled to a greater expectation of privacy

2.      No warrants or probable cause required for college officials to conduct safety and health inspections that aren’t intended to gather evidence of crime

3.      Warrants based on probable cause are required for municipal or campus police to search dorm rooms

VII. Employee drug searches

A.      Reasonable without warrants or individualized suspicion

B.      Balancing test

1.      Special need to protect public safety of travelers

2.      Minimal invasion (urine sample) of employees’ privacy

C.     Objective basis—random testing

8 Police interrogation and confessions


I.        The interrogation and confession setting

A.      The right to remain silent (against self-incrimination) is ancient and controversial

1.      Jesus invoked it, and Talmudic law commanded it

2.      Controversy over the issue—three positions

a.      All incommunicado interrogation is coercive—taken by people who fear abuse of police power more than crime

b.       Only forced confessions are illegal—taken by those who fear crime more than abuse of police power

c.       Pressure is ok; coercion isn’t—taken by the U.S. Supreme Court

B.      Popular portrayals of saintly cops and satanic criminals hide a complex reality

C.     Interrogation isn’t pleasant, and it’s not supposed to be

D.     Three justifications for interrogation

1.      Can’t solve crimes without them

2.      Criminals don’t confess unless they’re caught or confess

3.      Police have to use pressure or guilty people won’t confess

E.      Important empirical findings about interrogation based on Leo’s direct observation

1.      Interrogators rarely use coercion

2.      Most interrogations last less than an hour

3.      One in four suspects invokes his Miranda rights

4.      Interrogators make up evidence and use tricks to undermine suspects’ confidence

II.     The Constitution and self-incrimination

A.      Three constitutional approaches

1.      Due process approach—applied in early cases of forced confessions by blacks in the South

a.      Reliability rationale—admitting unreliable evidence to prove guilt denies defendants the right to their lives without due process of law

b.       Accusatory system rationale—forced confessions violate due process even if they’re true, because the government alone has the burden of proving guilt beyond a reasonable doubt

c.       Fundamental fairness rationale—coerced confessions aren’t just unreliable and contrary to the accusatory system of justice; they offend the fundamental fairness required by the due process clause

2.      Right-to-counsel approach

a.      Used for a brief period

b.       Applied in Escobedo v. Illinois

c.       Custodial interrogation is a critical stage in criminal prosecutions—the point when suspects’ right to a lawyer kicks in

d.       As soon as a police investigation focuses on a particular suspect (the accusatory stage), criminal prosecution begins and the right to counsel attaches

3.      Self-incrimination approach

a.      Custodial interrogation is inherently coercive without warnings

b.       Applied in Miranda v. Arizona

B.      “Witness against himself”—self-incrimination protection applies only to testimony, not to physical evidence

C.     The meaning of compelled—according to the voluntariness test of self-incrimination, confessions violate due process if the totality of circumstances shows that suspects didn’t confess voluntarily

III.   Miranda v. Arizona

A.      Bright-line rules—custodial interrogation is inherently coercive without four warnings

1.      The right to remain silent

2.      Incriminating statements will be used

3.      The right to counsel

4.      A lawyer will be appointed for poor suspects

B.      Warnings not necessary except when two conditions are met:

1.      Suspects are in custody—custody usually means in police stations but includes any place where suspects are held against their will

2.      Suspects are interrogated—doesn’t apply to interviews before interrogation begins or brief questioning during “stops” (Chapter 4)

C.     The meaning of custody

1.      Being held in a police interrogation room

2.      Wherever officers have deprived an individual of “freedom of action in any significant way” (Miranda v. Arizona)

3.      Circumstances that can form part of “totality of circumstances” showing custody

a.      Whether the officers had probable cause to arrest

b.       Whether the officers intended to detain the suspects

c.       Whether the suspects believed their freedom was significantly restricted

d.       Whether the investigation had focused on the suspect

e.      The language the officers used to summon the suspects

f.        The physical surroundings

g.       The amount of evidence of guilt the officers presented to the suspects

h.      How long suspects were detained

i.        The amounts and kinds of pressure the officers used to detain the suspects

4.      Circumstances not showing custody

a.      Drivers and passengers detained during routine traffic stops

b.       Probationers attending routine meetings with their probation officers

c.       Persons detained during the execution of search warrants

D.     The public safety exception

1.      Applied to Quarles v. New York

2.       No warnings are required if

a.      Officers are endangered

b.       Anyone else nearby is endangered

IV.   The waiver of the right to counsel and to remain silent

A.      Government has to prove suspects waived two rights

1.      The right to counsel

2.      The right to remain silent

B.      A valid waiver has to be “knowing” and “voluntary”

1.      Knowing—knew the right and knew they were giving it up

2.      Voluntary—gave up the right without force, promise, or reward

3.      Can be an expressed or implied waiver

a.      Expressed—spoken or written

b.       Implied—the totality of circumstances shows it was voluntary and knowing

C.     Voluntary self-incrimination

1.      Most suspects (about 80%) waive rights, so we’re back to the due process requirement that suspects made incriminating statements voluntarily

2.      The two-prong test of confessions that violate the self-incrimination clause

a.      Police coercion was involved

b.       Police coercion caused the incriminating statements

3.      The totality of circumstances determines the two prongs

9 Identification Procedures


I.        Identifying strangers

A.      It’s easier to prove a crime was committed than who committed it

B.      Eyewitness identification is the most widely used identification procedure despite technological advances

C.     Three types

1.      Lineups (live and photo)—witnesses observe a row of individuals resembling one another; one is the suspect

2.      Show-ups—one suspect is observed by the witness

3.      Photo identification—the witness examines either an array of photos or an individual photo

II.     The risk of mistaken eyewitness identification

A.      High risk of mistaken identification due to four normal mental processes:

1.      Perception (brains aren’t cameras)

a.      Length—the longer the time to observe, the more accurate the observation

b.       Distractions—witnesses often are distracted

c.       Focus of observation—witnesses often focus on the weapons used against them and not on the criminal’s physical characteristics

d.       Stress on witness during the observation, especially during criminal events

e.      Race of witness and stranger—interracial identifications are more inaccurate

2.      Memory

a.      Falls off sharply during first few hours after the event

b.       Information is stored in the brain during and after the event

c.       After the event, memory remains stable for several months

3.      Suggestion

a.      Other people’s influence distorts interpretation of events

b.       Procedures are viewed by witnesses as multiple-choice (without “none of the above” choice) or as true/false questions

c.       Believe police wouldn’t have set up the procedure unless they had the suspect present

4.      Recall—information selectively retrieved from memory

B.      Witnesses’ confidence in their identification grows as time passes

C.     Reducing risk of misidentification

1.      Better procedures can benefit recall and suggestion

2.      Avoid show-ups and single photo ID

3.      Include enough individuals and ones who resemble one another in lineups

4.      Warn witnesses the suspect might or might not be in the live or photo lineup

5.      Have blind administrators (ones who don’t know if the suspect is there) manage the procedure

III.   The Constitution and identification procedures

A.      Unreliable identification procedures can violate two constitutional provisions

1.      Fifth and Fourteenth Amendment due process clauses

2.      Sixth Amendment right to counsel after formal charges—right to have a lawyer present at lineups, show-ups, and photo IDs

3.      Court has ruled that ID procedures don’t compel suspects to be witnesses against themselves in violation of the Fifth Amendment

4.      If suspects refuse to cooperate in identification procedures

a.      Prosecutors can comment at trial that jurors can infer guilt from the refusal

b.       Courts can hold those who refuse in contempt

c.       Police can conduct procedures over suspects’ objections

5.      Courts apply a due process test of identification procedures

6.      Two-pronged totality of circumstances unreliability test—defendants have to prove by the totality of the circumstances that the

a.      Procedure was impermissibly and unnecessarily suggestive and

b.       Procedure caused a “very substantial likelihood” of misidentification

B.      Lineups

1.      Reliability depends on

a.      Composition of the lineup

(1)    Numbers—at least 5–6 for most accuracy

(2)    Similarity in physical characteristics and in dress

b.       Procedure—the way the lineup’s conducted

(1)    High degree of inaccuracy due to power of suggestions

(2)    Recommendations for reducing unreliability

(a)    Tell witnesses the suspect may or may not be in the lineup

(b)     Have a blind administrator manage the lineup

(c)     If the witness identifies the suspect, immediately ask how sure he is before other information affects the level of certainty

2.      Due process and misidentification

a.      Two-pronged reliability test

b.       Totality of circumstances concerning five factors affecting eyewitness reliability

(1)    Opportunity to view

(2)    Degree of attention

(3)    Accuracy of description

(4)    Level of certainty

(5)    Length of time between crime and ID procedure

c.       Empirical research and due process test

(1)    Questionable assumption that reliability improves if witness’ identification meets the reliability test

(2)    Some validity to the opportunity to view the suspect during the crime but none of the circumstances does much to improve reliability

C.     Show-ups

1.      Substantially less reliable than lineups because suggestion is more powerful

2.      Three situations in which courts admit show-ups

a.      Chance encounters—witnesses accidentally see suspects

b.       Emergencies—witnesses are hospitalized

c.       Suspects aren’t in custody

3.      Constitutionality depends on two-pronged due process reliability test

D.     Photo identification

1.      The least reliable of all procedures (because the two-dimensional nature distorts accuracy)

2.      Most widely used

3.      Constitutionality

a.      U.S. Supreme Court has upheld their constitutionality

b.       Two-pronged due process reliability test determines admissibility

IV.   DNA profile identification

A.      DNA can potentially identify individuals or absolutely exclude them as suspects

B.      Reliability issues arise not from technology but from DNA testing procedures

C.     Three legal standards for admitting DNA profiles as evidence

1.      Frye test—admissible if technique has gained general scientific acceptance

2.      Frye plus—general scientific acceptance + testing in a particular case that followed accepted scientific techniques

3.      Federal Rules of Evidence—relevance of the evidence outweighs any tendency to unfairly hurt the defendant’s case

D.     Correct identification based on DNA depends on answers to three questions

1.      Is a reported match between the sample at the scene of the crime and the sample from the suspect a true match?

2.      Is the suspect the source of the trace of DNA left at the scene of the crime?

3.      Is the suspect the perpetrator of the crime?

E.      Problems with use of DNA evidence in court

1.      Mistakes do happen

2.      Match might be coincidental

3.      Prosecutors, experts, and jurors exaggerate the weight of DNA evidence