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
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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 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
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
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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
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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 defendant’s 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 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)
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)
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
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 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
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.