Phase 1 Task 3 IP

Introduction to Criminal 1

INTRODUCTION TO CRIMINAL PROCEDURE

Introduction to Criminal Procedure

Phase 1 Task 3 IP

LaTonia R. Divens

Colorado Technical University

Portions Re-purposed from

Phase 3 Task 1 IP

CJUS367-1003A-04

Professor Richard Teresi

July 23, 2010

CJUS375-11101B-04

Dr. Kishasha T. Williams-Ford

February 18, 2011


Introduction to Criminal Procedure

The 4th Amendment gives every U.S. citizen the right to be secure in his/her home, their

person, papers and effects. It also protects them against unreasonable searches and seizures.

You cannot be violated and no warrant can be issued against you without probable cause and if

probable cause is given, any warrant issued must be supported by Oath or affirmation as well as

descriptive in the location to be searched, the person, people and or items that will be seized

(Hawkins-Lyke, 2010).

Under the 4th Amendment; Search/Seizure/Search Warrant affects law enforcement in

terms of protecting them, the department and the city from civil liabilities as well as it protects

the citizens. A law enforcement agent cannot legally invade a person’s privacy because they

want to nor have a gut feeling a person is involved in criminal mischief. In order for law

enforcement agent(s) to be within the law in terms of searches and seizures, they must provide

probable cause under Oath or affirmation with specific details in terms of whom, what and

where. If an agent seizes evidence without proper procedure according to due process, it will

not be allowed as evidence in criminal trial. This can also cause the entire case to be dismissed,

(Wong Sun v. United States, 1963) (Divens, 2010). The 4th Amendment does prefer warrants

that are issued by judges but it will also allow searches and seizures without them in the event

that the law enforcement agents’ actions were reasonable (ctuonline.edu, 2010).

The exclusionary rule of the 4th Amendment is based on the 1963 case, Weeks v. United

States. This rule is defined as an understanding according to U.S. Supreme Court that any

incriminating evidence seized has to be done according to the constitutions specifications with

regard to due process. If any incriminating evidence is not seized accordingly, it will not be


allowed as evidence in criminal trial. This rule was mandated to control law enforcement

agents; behavior as well as specific focus on their failure to obtain a warrant, which would

provide legal authorization to conduct searches or effect arrests; especially when the arrest could

lead to incriminating statements or the seizure of physical evidence (Schmalleger, 2005).

All searches and seizures are not governed by the 4th Amendment; if the 4th Amendment is

not applicable to the situation in which the law enforcement agent is confronted with, there is no

exclusionary rule to prohibit him/her from introducing evidence against the suspect during the

trial process. In general, the 4th Amendment only applies in cases where the suspect has a

reasonable expectation of privacy within the location being searched or among the property that

is being seized (ctuonline.edu., 2010). An example would be such case as Katz v. United States,

1967 (ctuonline.edu., 2010).

Over the years, a number of exceptions have been specifically defined and narrowly

limited by the U.S. Supreme Court with regard to search warrant requirements. In the event a

warrant is issued prior to actions of the law enforcement agent, the warrant would be considered

reasonable (Aguilar v. Texas, 1934). If the agent acts prior to obtaining a warrant, his/her

actions would be deemed unreasonable if and until it is proven the actions of the agent fit into

one of the very few exceptions established by the U.S. Supreme Court; Coolidge v. New

Hampshire, 1971). As it stands to date, the Reasonableness Clause has given the U.S. Supreme

Court 10 or more different categories indicative of searches and seizures that can be conducted

without a warrant. It was determined in each instance it would have been unreasonable

judgment for the agent(s) not to conduct a search/ or seizure without having obtained a warrant;

Warden v. Hayden, 1967. This would be what is called the good-faith exception. A good-faith

exception is another exception of the exclusionary rule where the agents conduct a search / or


seizure without a warrant. The agent believes that he/she is performing their duty according to

the law. Later on they may find that a mistake was made, for instance the way they applied for

the search warrant; their evidence may still be admissible in court (Schmalleger, 2005).

However, their good-faith process does not necessarily make an illegal search and seizure legal;

Taylor v. Alabama, 1982.

The oldest exception to the search warrant rule is a search incident to arrest. In this case,

an individual who is arrested is searched in the efforts to ensure the safety of the agent(s) as well

as the subject being arrested. The individual could have weapons or other objects/ or substances

that could be used to harm the agent(s) or themselves. Therefore, an immediate warrantless

search of an arrestee is crucial. As long as the agents reason for arresting said individual is

valid, the agents are justified in searching the individuals’ person as well as his/her immediate

area; Carroll v. United States, 1925.

If an agent has reasonable suspicion, he or she can justifiably conduct a simple pat-down

search; Terry v. Ohio, 1968. Reasonable suspicion is defined as a level of suspicion justifying

an agent to make further inquiry or investigation. This allows an agent to stop an individual and

question him/her or conduct a pat-down search. It is also defined as the agents’ belief, based on

their consideration of facts at hand and reasonable conclusions drawn from the facts that would

cause a reasonable person under the same circumstances to conclude some form of criminal

activity will take place or has taken place. It is a general and reasonable belief that a crime is

being facilitated or has been, whereas probable cause is the reasonable belief that a particular

individual(s) has facilitated a specific crime (Schmalleger, 2005).

The plain-view doctrine is another case of warrantless search and seizures; Harris v. U.S.,

1968. Plain view is legally defined as any objects that are readily visible to the agent(s) and can


be seized as evidence during a search by agents without a warrant specifying the seizure of the

items. In order for the agent(s) to seize these objects (legally), they must also be in accordance

with the law in terms of having a justified reason to be in the location where the readily visible

items are seen as well as justifiable reason to believe that such items are associated with criminal

activity (Schmalleger, 2005).

In the case of an emergency search, agents are also allowed to conduct warrantless

searches; Mincey v. Arizona, 1978. An emergency search is defined as a warrantless search

justified due to an immediate need such as public safety, possible escape of a dangerous suspect

or tampering, removal or destruction of evidence. It is not a requirement for agents to delay

their course of investigations if it means gravely endangering their lives or the lives of others,

according to the 4th Amendment (Schmalleger, 2005).

The automobile is exception (Wyoming v Houghton, 1999) is defined as an agent who

stops a vehicle and has a reasonable suspicion that the there is contraband inside the vehicle is

justified in searching it without a warrant. When it is authorized for an agent to search the

vehicle (car, mobile recreation vehicles, motor homes, boats and airplanes), the agent(s) is

allowed to search the inside of the vehicle as well as the engine compartment and any other

mechanical parts of it; whatever contraband they intend to seize could be hidden inside of or

behind it. It is not required for them to replace the contents or compartments they have removed

from the vehicle. At any rate, warrantless vehicle search cases are judge on a case by case basis

due to the fact not all warrantless vehicle searches are within the law. In 1992, the courts

reexamined its position on the extent to which agents may proceed when legitimately stopping a

vehicle and with probable cause to believe there is concealed contraband inside the vehicle. The

courts allowed the agents to conduct probing searches of compartments and containers inside the


vehicle that are not in plain view. These searches can be as thorough as that would be

authorized in a search warrant in terms of the places that can be searched and the search must be

based on probable cause (Territo, Halsted & Bromley, 2004).

In a vehicle, the level of expectation of privacy is lowered in comparison to a home, office

or personal property (Territo, Halsted & Bromley, 2004).

The 1995 case of Wilson v. Arkansas had a Supreme Court ruling that agents will

generally be required to knock and announce themselves prior to entering a residence or other

premises even though they have a search warrant. If there are certain emergency situations at

hand exceptions can be made whereas the agents will not need to knock nor identify themselves

prior to entry. In the event that a suspect(s) may be destroying or getting rid of evidence, in

pursuit of an escaped arrestee or if announcing themselves will jeopardize their lives, they are

not required to announce themselves. Two years later, the Supreme Court made their position

on the “no knock” exception clearer in light of the Richards v. Wisconsin case that same year.

The court stated a “no knock” entry would be justified when reasonable suspicion exists that if

knocking and announcing in certain situations are deemed dangerous, futile or harness an

effective investigation of the crime (Schmalleger, 2005).

In 2001, the case of Illinois v. McArthur, the U.S. Supreme Court ruled that agents who

had probable cause to believe that a residence contained contraband or evidence of criminal

activity could prevent a suspect (within in reason) who was on the outside of the residence from

reentering the residence while they applied for a search warrant (Schmalleger, 2005).

Inherent coercion is defined as any tactics used by law enforcement agents who interview

suspects and in doing so, using pressuring styles short of physical abuse to initiate confessions or

information. In 1994, the case of Ashcraft v. Tennessee ruled that interrogation of this nature


was not acceptable. In the 5th Amendment it guarantees against self-incrimination but any form

of official coercion was excluded as well as pressuring during interrogation (Schmalleger, 2005).

A suspect must be read his/her Miranda rights before any questioning takes places. The

Miranda warning is as follows:

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 talk to and have an attorney present while you are being

questioned and if you cannot afford one, one will be appointed to you. If you decide to answer

questions now without an attorney present, you still have the right to stop answering questions at

any time (Schmalleger, 2005).

Once the suspect(s) have their rights read and explained to them, the agent(s) must also ask

the suspect(s) whether or not they choose to waive those rights and the suspect(s) answers must

be clearly expressed by answering or implying; not talking at all does not equate with waiving

their rights. The agent will ask the following questions:

1. Do you understand each of these rights I have explained to you?

2. Having these rights in mind, do you wish to answer questions?

3. Do you now wish to answer questions without an attorney present?

The answer to each of the previous questions must be yes in order to qualify as a valid

waiver of rights (Schmalleger, 2005).


The 6th Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial, by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously ascertained by law, and

to be informed of the nature and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.” (revolutionary-war-and-beyond.com, 2010).

There are a total of seven protections for those who have been accused of crimes within the

6th Amendment: the right to a speedy trial, public trial, to be judged by an impartial jury, notified

of the details of the crime that he or she is being accused of, the right to confront any witnesses

who are called to testify against the accused, the right to gather witnesses for their own defense

as well as the right to have legal counsel.

There are also clauses for each of the seven protections: The speedy trial clause, which is

one’s guarantee that they be tried efficiently if charged with a crime, the public trial clause

which guarantees one be tried publicly if charged with a crime, the right to trial by jury clause

which guards one from being prosecuted by corrupt judges in terms of unfair sentencing

practices if the trials were secretly held, the arraignment clause, which requires those accused of

a crime to be informed in full detail of the accusations against them, the confrontation clause

which guarantees the right for the accused to confront those who are accusing you, the

compulsory process clause, which guarantees the accused to call their own witnesses and the

court would serve subpoena’s to those whom refuse to testify willingly and the right to counsel

clause which guarantees one to have legal counsel if accused of a crime (revolutionary-war-and-

beyond.com, 2010).


The 14th Amendment gave citizenship to all individuals who were born or had been

naturalized in the U.S. as well as former slaves or those who had been recently freed. It also

states that no state could deny any individual life, liberty or property without due process of law

as well as no jurisdiction can deny an individual within it equal protection of the law.

I absolutely agree that when the police take action, their reason and actions should be just

as well as they should be aware of the rights of those they encounter and arrest and when these

things are not done or done inappropriately, they should be held accountable as the law deems.

If the police did not have to be just in their actions or else racial profiling for example would be

okay to do.

For example, they would rightfully be able to stop and search an individual or group of

individuals based solely on the kind of clothes they’re wearing, personal attitude towards them,

their ethnicity or the type of vehicle they are in; with that being the so called probable

cause/justification. Another example would be, an officer shooting a suspect or would be

suspect; the shoot would have to be justified. The police cannot shoot an individual in the back

(just because the suspect is running from them) they cannot shoot or physically beat an

individual for not answering their questions or simply because they are mouthing off to them.

There has to be a reason for using force (to include weapons) as well there has to be a reason for

the level of force used as it relates to the situation. Being hit about the head with an asp is not

required to place an already cuffed individual into the patrol vehicle for example. If excessive

force is used or claimed, the officers must be able to give a legitimate reason for the level of

force used and be able to prove it. The police must also know what rights they have as law

enforcement and the rights an individual has in terms of their stopping, frisking, searching,


seizing, etc. Whether the individual is aware of all of his or her rights or not, when the

individual retains counsel and finds that any of his or her clients’ rights were violated, this

makes for case dismissals and lawsuits for both the officer(s) and the department.

If it is found that any officer has intentionally violated someone’s rights, they should be

held accountable per the law just as anyone else would be, to show that they are not above the

law and hopefully bring police misconduct incidents to an extreme low.

The courts have implemented certain protections to citizens against officers who violate

their constitutional rights. A person would be able to file a suit (Section 1983) against a law

enforcement agent if they can prove the agent intentionally violated his or her civil rights; as

well as there are varying levels of culpability used in order to determine violations of

constitutional rights, based on what kind of conduct is alleged to have taken place (Worrall,

2010).

As discussed in our text, there are theories of liability used to assist in determining who is

accountable and why they are accountable in Section 1983 suits. Individuals who file Section

1983 suits will typically file charges against a particular officer(s), the supervisor or the city or

town the officer(s) work for. Many times these suits are filed against one or more of the above

in the efforts to reap the greatest monetary reward.

In such case of Dow Chemical Co. v. United States 476 U.S. 227 1986, I think that the

courts went too far simply because the EPA violated the defendants’ Fourth Amendment

protections based on the equipment used in which to ascertain evidence (openjurist.org, 1986).

If they simply flew over the area in question and were able to see said evidence without the use

of an enhancement device, they could have very well been within the scope of the protections,


nor did they have the companies verbal or written permission or a warrant and it was not

pertinent for them to do the aerial view due to an imminent threat.

In such cases where formulas and trade secrets are at risk, there should be some kind of

exclusionary rule to apply and such searches should require prior approval by a judge or

magistrate as well as the entity to be searched should be informed prior to said search.

A case where I feel the courts have gone too far would be that of the TSA and body

scanning machines. I totally understand and appreciate the fact that people want to be able to

travel and feel safe in doing so and if assuming that no one traveling on your flight has

explosives or any kind of weapons will lessen your fear so be it. The first problem that I have is

the fact that these machines in my opinion are not safe for those operating them or those who are

going through them; they are x-ray machines/radiation (epic.org, 2010). For example, when you

go to the dentist to have work done and if you are pregnant or think that you could be, prior to

the dentist taking x-rays of your mouth, he places a protective covering over your top half.

What is done to protect the females who may be pregnant or think they could be and they have

to go through this body scanner? What about those who may have already gone through chemo/

or radiation treatments for cancer? Those are just a few of my pet peeves with this topic. It is

also definitely a total invasion of privacy and they claim that the images of the individuals who

go through the machines are not saved therefore the images are safe. That is totally

unacceptable for one because if one knows the mere basics about computers you know that just

because you delete something does not mean that it is totally gone and we are still unaware of

just who the individuals are who are viewing our images, not medical professionals, I am sure.

Then there is the embarrassment and humiliation that is brought upon the citizens when

they are trying to travel. The lady who had undergone a total mastectomy due to cancer and


went through the body scanner and they saw what obviously appeared to be abnormal. She

informed them that she wears breast prosthesis and they made her take them off and show them.

The gentleman who due to health issues had to wear a colostomy bag was taken into a room to

be searched and he advised them that he was fine with the search however upon doing the pat

down, please do not use pressure because I am wearing a colostomy bag and if smashed it will

leak. They told this man they didn’t care to hear about his medical issues, proceeded with the

pat down and did exactly what the gentleman told them not to do. They smashed his colostomy

bag and the contents spilled all over the man, they did not apologize and he had to board his

flight soiled and humiliated. This kind of behavior is an outrage and totally unacceptable.

People whom have shown up to travel and have done so dressed in their underwear to

avoid going through the humiliation of being groped and fondled or going through the scanner

are being held accountable per the law, because they do not want to go through the body scanner

nor do they want to be pat down, groped and fondled as though they were inmates in a prison.

Another avenue where the courts have gone too far is eliminating our rights in the so called

efforts to better protect us (Messerli, 2007). Basically, you can have this kind of protection in

exchange for the right to think for yourselves. That is ridiculous to say the least. Why must we

give up or civil liberties in order to be protected by the very country that we are citizens of? It is

our right to peacefully protest, it is our right to bear arms, it is our right to have free speech, etc.

It is all said to be ways in which to counter-act terrorism; a so -called security measure. If I

choose to stand or speak against something that I personally do not believe in, then I will be

targeted as a terrorist even though I am not involved or attempting to incite illegal activity and or

behavior. I will be targeted because I have firearms in my home and legally allowed to carry

concealed weapons for safety and protection, even though I have no criminal or mental


background and I do work in a field where I am armed. I will be targeted because of my

religious/spiritual beliefs, even though I am not trying to force them upon anyone else. None of

this makes sense nor does it give me the sense of having freedom in this country. The

Constitution was built on religion, many things that are found in the Bible, but now these very

things are being changed and deemed as unlawful or terroristic.

I totally want our country and its citizens to have their freedoms as well as I want us to be

safe from terrorism however I would never choose living in modern day concentration camps as

a solution for protecting our citizens.


References

awesomelibrary.org. (2010, June 28). Handgun control debate. Retrieved from http://www.awesomelibrary.org/guncontrol.html

ctuonline.edu. (2010, July). Course materials. Retrieved from http://coursebuildercontent.careeredonline.com/Assets/30000/28168.pdf

epic.org. (2010, January). Whole body imaging technology and body scanners ("backscatter" x-ray and millimeter wave screening). Retrieved from http://epic.org/privacy/airtravel/backscatter/

Hawkins-Lyke, R. (2010/ April 2010). Introduction to CJUS. In Instructor files. Retrieved from http://www.ctuonline.edu

Messerli, J. (2007, December 9). Should we sacrafice some of our civil liberties for the war on terror? Retrieved from http://balancedpolitics.org/civil_liberties.htm

openjurist.org. (1986, May 19). 476 US 227 Dow Chemical Company v. United States. Retrieved from http://openjurist.org/476/us/227/dow-chemical-company-v-united-states

Schmalleger, F. (2005). Eighth edition criminal justice today: An introductory text for the 21st century. Upper Saddle River, New Jersey: Pearson Prentice Hall.

Territo, L., Halsted, J. B., & Bromley, M. L. (2004). Sixth edition crime and justice in America: A human perspective. Upper Saddle River, New Jersey: Pearson Prentice Hall.

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