Searches (continued)

Constitutional Law

Correctional Services

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2

Part 1:

THE FOURTH AMENDMENT



3

Fourth Amendment

“The right of the people to be secure in their persons, houses, papers and effects and against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”



4

Levels of Knowledge Chart

0%

+

10%

Gut

+

45%

Reasonable

Suspicion

+

51%

Probable

Cause

+

98%

Beyond a

Reasonable

Doubt

Clear and

Convincing

Evidence



5

Probable Cause





Likelihood that a crime has occurred and that the suspect is linked to the crime by some means

Example: a burglar alarm went off at a Jones

Department Store at 2 A.M. You are behind the building , wearing all black and carrying a

T.V. The store carries T.V.s. There is broken glass on the ground and a window next to the back door of the store is broken.



6

Probable Cause

(continued)





Is made of building blocks. The building blocks in and of themselves may not be enough for probable cause. It may take more than one of the building blocks to equal probable cause.

Building Blocks

 Flight

 Furtive act or movement

 Hiding

 Attempt to destroy evidence

 Resistance of officers

 Admissions or confessions



7

Probable Cause

(continued)

 Building Blocks (continued)

 Evasive answers/conflicting stories

 Unreasonable explanations

 Physical evidence (latent/voice prints, hair, handwriting,

DNA, guns)

 Identification of the suspect by a witness

 Contraband or weapons in plain view

 Criminal record





Hearsay information (anonymous tip)

Unusual or suspicious conduct





Drug detecting dogs

Police radio broadcast



8

Arrest

 Arrest – A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by a person having authority to arrest ( Criminal Code of

Procedure (CCP) 15.22

)



9

Arrest

(continued)





Elements of arrest

 Intent

 Authority

 Custody (Seizure or detention)

 Understanding of the subject

When and how an arrest can occur

 An arrest may be made anytime of the day or night

( CCP 15.23

)

 In making an arrest, all reasonable means are permitted to be used to effect it. No greater force, however, shall be resorted to than is necessary to secure the arrest and detention of the suspect ( CCP

15.24

)



10

Arrest

(continued)



Custody

 Constructive Custody

 Confined, imprisoned, in custody

 Actual, corporeal and forcible detention of a person

 Detention within limits

 Restraint

 Control exercised over another

 Certain limits

 Subject to “general authority”



11

Arrest

(continued)

 Authority to arrest without a warrant

 CCP 14.01

– offense within view

 CCP 14.02

– offense within view of a magistrate

 CCP 14.04

– Felony offense, no time to procure a warrant because the offender is about to escape



12

Arrest

(continued)

 Authority to arrest without a warrant (continued)

 CCP 14.03

 Felony offense

 Breach of peace

 Disorderly conduct or other chapter 42 offense

 Public intoxication

 Inchoate offense

 Protection (assault)

 Family violence (assault bodily injury)

 Protective Orders

 Prevent theft



13

Show of Force and Authority













Temporary Detention

Reasonable suspicion

Activity occurring/just occurred

Person connected to activity

Limited time

Florida v. Royer, U.S. Supreme Court case that ruled an investigative stop can last no longer then necessary to complete investigation. The scope of detention must match the justification.



14


(continued)















Stops

No “fit” time/place

Description of wanted person

Emotional, frightened, intoxicated

Running/furtive movements

Loitering/hanging out/look out

Crime scene area



15


(continued)





Stops (continued)

Terry v. Ohio, U.S. Supreme Court case that ruled that officers may complete a “frisk” of person’s outer clothing for safety.

 Unusual Conduct

 May be armed and dangerous

 Protection of self and others

 Suspicion of crime and weapon to be used

 Careful pat of outer clothing

 Alone and no backup

 Emotions or behavior of suspects



16

Searches



Searches – A prying into hidden places for that which is concealed and it is not a search to observe that which is open to view



17

Searches

(continued)











4

th

amendment:

Protection against unreasonable searches and seizures

Protects people, not places

A search by definition involves an invasion of an expectation of privacy (homes, cars, schools)

Warrant to search or arrest requires probable cause



18

Searches

(continued)



Search Warrant (

CCP 18.01

)

 Neutral, detached magistrate

 Probable cause

 Sworn affidavit

 Must include:

 Specific offense committed

 Specific property to be seized

 Property is at the place to be searched



19

Searches

(continued)











Beyond a search warrant

Protective sweep – look in everyone to make sure there is no one hiding in the building. Any contraband viewed in plain view during the sweep can be charged to the person

Destruction of evidence – if the officer believes that someone is or is about to destroy evidence, they may go into areas not included on the search warrant

Additional Evidence – Discover more or possible evidence in plain view elsewhere on property

Hunt for evidence or contraband that, as a result of the initial search, they believe exists in another location on the property



20

Searches

(continued)



Categories of Evidence

 Fruits of a crime – items/materials removed from a crime scene, i.e: tv taken from an electronics store

 Tools of a crime – item used in the commission of a crime, i.e: crowbar, screwdriver

 Contraband – anything that is illegal to possess or is used in a manner other than intended

 Mere Evidence – items possessed that are illegal but not known by person possessing them to be illegal



21

Searches

(continued)



Search warrant exceptions

 Persons

 Vehicles

 Places

 Open Fields

 Anything with consent

 Abandoned property

 Inventory

 Plain View



22

Searches

(continued)



Searches with consent

 Can be withdrawn at any time

 Must be given by one with the authority to give consent

 Can limit the scope of the search



23

Searches

(continued)



Searches at school

 Back-pack searches

 Locker searches

 Vehicles searches

 Strip searches

 Use of metal detectors

 Use of drug dogs

 Consent to search



24

Searches

(continued)



Searches at school (continued)



To be reasonable a search must be

 Justified

 Reasonable suspicion of law or school violation

 Reasonably related to circumstances

 Conducted in reasonable manner



25

Searches

(continued)



Searches at school (continued)

 Those with authority to do searches

 Administrators must have reasonable suspicion including tips, past behavior, student’s reaction to questions

 Police must have probable cause and a law violation



26

Searches

(continued)



Search incident to an arrest



Arrest must be lawful



Search area within the subject’s immediate control



Immediately following arrest



To prohibit destruction of evidence



27

Searches

(continued)

 Plain-view Doctrine – Coolidge v. New Hampshire, items in plain-view are seize able and property can be searched if intrusion is lawful, discovery is inadvertent, and it is immediately apparent that the property is contraband

 Initial intrusion must be lawful or in proper position to view property

 Discovery must be inadvertent

 Must be immediately apparent that items are evidence of a crime, contraband, or subject to seizure



28

Searches

(continued)



Exclusionary Rule (

CCP 38.23

)

 No evidence shall be admitted into a criminal trial that was obtained in violation of constitutional rights

 Mapp v. Ohio, any evidence seized illegally can be excluded from both state and federal trials



29

Part 2

FIFTH AMENDMENT



30

Grand Jury



Grand Jury – an indictment must be returned by a Grand Jury



31

Double Jeopardy



Double Jeopardy – suspect cannot be tried for the same offense twice



Protections

 Against a second prosecution for the same offense after an acquittal

 Against a second prosecution

 Against multiple punishments for the same offense



32

Double Jeopardy

(continued)



Double Jeopardy is lawful when:

 A person is convicted then appeals to a higher court and the conviction is overturned

 A person is convicted and requests new trial

 There is a hung jury

 Can be tried at the federal and the state level for the same crime



33

Self-Incrimination



Brown v. Mississippi, the U.S. Supreme

Court ruled that evidence from compulsory self-incrimination can not be used at trial

 Facts: There was no evidence other than the confessions which were brutally obtained

 Procedural Problem: the confessions were extorted by violence

 Court holding: a violation of due process; cannot use evidence obtained from compulsory selfincrimination



34


(continued)



Examples





Producing an instrument of the crime

Admission of defendant while asserting 4 th amendment rights

 Use at trial of defendant’s silence after

Miranda

 Requiring the defendant to appear before

Grand Jury that indicted him



35


(continued)





Miranda v. Arizona, the U.S. Supreme Court established rights that must be presented to persons prior to interrogation

Miranda Warning–Right against self-incrimination and right to attorney representation

 “You have the right to remain silent. Anything you say can and will be used against you in a court of law.”

 “You have the right to an attorney. If you cannot afford one, one will be appointed to represent you.”

 “You have the right to terminate this interview at anytime.”



36

Part 3

THE SIXTH AND THE

FOURTEENTH AMENDMENTS



37

Sixth Amendment

 Speedy trial – Barker v. Wingo, U.S. Supreme

Court refused to adopt a strict time line test, i.e., there is no constitutional requirement to give a defendant a trial within a specified time limit.



38

Sixth Amendment

(continued)



Public Trial

 Purpose – to guarantee that the defendant will be fairly and not unjustly condemned

 Rights

 Distrust of secret trials

 General public may not be indiscriminately excluded from the courtroom

 May be excluded because of misconduct or overcrowding



39

Sixth Amendment

(continued)



Trial By Jury



Purpose

 Protect against corrupt or overzealous prosecutor

 Protect against the compliant, biased or eccentric judge



40

Sixth Amendment

(continued)



Trial By Jury (continued)

 Number of Jurors and Verdict

 12 person jury is a historical accident

 States may have a jury of less than 12 members

 Federal juries have 6 members

 Unanimous verdict in state court is not required by 6 th amendment

 Unanimous verdict only required in federal trials and

Texas

 Felony jury must have at least 6 jurors and the verdict must be unanimous



41

Sixth Amendment

(continued)



Trial By Jury (continued)



Impartial jury:

 No discrimination because of race, sex, creed, color, religion, or otherwise

 Systematic exclusion of a certain race not impartial

 Requiring women to register a declaration expressing a desire to serve on a jury is constitutional



42

Sixth Amendment

(continued)



Trial in the state and the district where crime occurred



Notice of the nature of the accusation



43

Sixth Amendment

(continued)



Confrontation of opposing witnesses

 Washington v. Texas:

 Defendant wanted co-defendant already convicted of same crime to testify at trial under Texas statute

 U.S. Supreme Court held that the accused has a fundamental right to present his own witnesses to establish a defense



44

Sixth Amendment

(continued)

 Compulsory process for obtaining favorable witnesses

 Pointer v. Texas: U.S. Supreme Court ruled that confrontation is a fundamental right and denial violates the 14 th amendment’s guarantee of due process of law

 Dying declaration is admissible in court as true and just testimony

 Stenographic testimony of witness is acceptable if witness is dead or out of court’s jurisdiction.

 Must show due diligence through bona fide actual search for a witness before evidence previously taken can be read at trial



45

Sixth Amendment

(continued)



Assistance of counsel



Gideon v. Wainwright

 The U.S. Supreme Court ruled there is a right to counsel in all federal cases.

 The 14 th amendment requires states to provide counsel to indigent defendants in all felony cases.



46

Fourteenth Amendment

 Procedural Due Process

 Notice of proceedings

 Opportunity to prepare for a hearing

 Opportunity to be heard both in presenting one’s claim and in combating the claim of the opponent

 A fair hearing

 The hearing to be before an impartial tribunal



47


(continued)



Substantive Due Process

 There must be a proper purpose of the statute

 There must be no substantial impairment of constitutional rights

 The means used must be released to the object sought

 There must be no conflict with valid federal legislation

 A criminal statute must be clear so that a person will know what is required of him



48

Part 4

RIGHTS IN THE

CORRECTIONAL SYSTEM



49


 Fourth amendment – offenders and their property are subject to search at anytime. Rules regarding search and seizure do not apply to offenders in a correctional setting



50


(continued)











Offenders are already in custody and therefore cannot be arrested

No warrant necessary to search offenders and their property

Seizure of anything that is contraband

May be charged criminally

No right to privacy



51

Fifth Amendment









Offenders are afforded the same rights regarding self-incrimination and double jeopardy as defendants not incarcerated

Offenders do not have access to Grand Juries unless they are charged with a new crime

Officers are not required to give the Miranda warning prior to interrogation. It is only necessary for new charges.

Offenders are given due process in all forms of discipline and criminal proceedings



52

Sixth Amendment





Offenders are given the same opportunity for a speedy and public trial as someone awaiting trial

Offenders are afforded a jury in any criminal proceedings

 Offenders are notified of charges against themselves in both criminal and discipline proceedings



53

Sixth Amendment

(continued)





Offenders have the right to confront witnesses and present witnesses on their behalf





Right to counsel

Offenders are given the opportunity for counsel if they cannot afford it during felony, criminal proceedings

Offenders do not have the right to counsel during institutional proceedings such as discipline hearings or parole hearings



54


 Offenders are afforded due process whether it is an institutional proceeding such as a discipline hearing or a criminal proceeding



55

Resources











082052669X, Constitutional Law, Bernard

Schwartz, John Attanasio, and Norman

Redlich, 1996.

Arlington Police Department training

Texas Commission on Law Enforcement

Officer Standards and Education (TCLEOSE) http://www.tcleose.state.tx.us/

Texas Penal Code http://www.statutes.legis.state.tx.us/

The U.S. Constitution and the Bill of Rights



56

Searches (continued)

Correctional Services

Custody

Searches – A prying into hidden places for that which is concealed and it is not a search to observe that which is open to view

4

amendment:

Search Warrant (

)

Categories of Evidence

Search warrant exceptions

Searches with consent

Searches at school

Searches at school (continued)

To be reasonable a search must be

Searches at school (continued)

Search incident to an arrest

Arrest must be lawful

Search area within the subject’s immediate control

Immediately following arrest

To prohibit destruction of evidence

Exclusionary Rule (

)

Grand Jury – an indictment must be returned by a Grand Jury

Double Jeopardy – suspect cannot be tried for the same offense twice

Protections

Double Jeopardy is lawful when:

Brown v. Mississippi, the U.S. Supreme

Court ruled that evidence from compulsory self-incrimination can not be used at trial

Examples

Public Trial

Trial By Jury

Purpose

Trial By Jury (continued)

Trial By Jury (continued)

Impartial jury:

Trial in the state and the district where crime occurred

Notice of the nature of the accusation

Confrontation of opposing witnesses

Assistance of counsel

Gideon v. Wainwright

Substantive Due Process

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