Law, Justice, and Society:

A Sociolegal Introduction
Chapter 6
Criminal Procedure

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

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

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

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

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

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

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

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

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

Criminal Procedure
Searches
The examination of an individuals 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

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

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

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

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

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

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

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

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.

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

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

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

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

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 crossexamine
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)

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 witnesss
testimony and/or evidence and that such testimony
would not be cumulative
Made applicable to states in Washington v. Texas
(1967)

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 1914birth of the
exclusionary rule

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

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 Exceptionevidence may be
admitted if knowledge of that evidence is gained from
a source that is entirely independent from a source
tainted by illegality

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

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.

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.