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THE
CRIMINAL JUSTICE
RESTORATIVE JUSTICE
SENTENCE REDUCED
SYSTEM REFUSAL TO A PP AL
BACK TO TRIAL
CAPITAL
PUNISHMENT
E AL
F IL E P PE T ED
INDICT CONVICTION A EC
D J
RE
HABEAS
CRIME
L CORPUS
IA
T R ED
W T APPEAL PRISON TERM COMPLETED
NE R A N
FELONIES
GRAND G
JURY CHARGES
DISMISSED PRISON
GATHER INFORMATION
PARDON &
PRELIMINARY ARRAIGNMENT TRIAL CLEMENCY
SANCTIONS
FAILED
HEARNING
REDUCTION
OF CHARGE
MISDEMEANORS
PAROLE PAROLE
PLEA BARGAIN VIOLATED PAROLE COMPLETED
PRELIMINARY CHARGES
HEARNING DISMISSED
SANCTIONS
REPORTED AND INTERMEDIATE
FAILED
OBSERVED CRIME CHARGES SANCTIONS
DROPPED OR
DISMISSED
ARRAIGNMENT TRIAL CONVICTION PROBATION
UNRESOLVED BAIL OR
CRIME OR
NO ARREST DETENTION
HEARING
OUT OF SYSTEM
INVESTIGATION
CHARGES
DROPPED OR
DISMISSED
RELEASED SENTENCING
WITHOUT
JAIL
INITIAL
PROSECUTION
APPEARANCE
ARREST
RELEASED
WITHOUT
PROSECUTION
PLEA BARGAIN RESTORATIVE
CHARGES FILED JUSTICE
ENTRY INTO THE SYSTEM PROSECUTION AND PRETRIAL SERVICES ADJUDICATION
Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s).
SENTENCING AND SANCTIONS CORRECTIONS
Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.
77367_fep_02_and_03_ptg01_hires.indd 1 19/08/15 9:11 PM

THE
CRIMINAL JUSTICE
RESTORATIVE JUSTICE
SENTENCE REDUCED
SYSTEM REFUSAL TO A PP AL
BACK TO TRIAL
CAPITAL
PUNISHMENT
E AL
F IL E P PE T ED
INDICT CONVICTION A EC
D J
RE
HABEAS
CRIME
L CORPUS
IA
T R ED
W T APPEAL PRISON TERM COMPLETED
NE R A N
FELONIES
GRAND G
JURY CHARGES
DISMISSED PRISON
GATHER INFORMATION
PARDON &
PRELIMINARY ARRAIGNMENT TRIAL CLEMENCY
SANCTIONS
FAILED
HEARNING
REDUCTION
OF CHARGE
MISDEMEANORS
PAROLE PAROLE
PLEA BARGAIN VIOLATED PAROLE COMPLETED
PRELIMINARY CHARGES
HEARNING DISMISSED
SANCTIONS
REPORTED AND INTERMEDIATE
FAILED
OBSERVED CRIME CHARGES SANCTIONS
DROPPED OR
DISMISSED
ARRAIGNMENT TRIAL CONVICTION PROBATION
UNRESOLVED BAIL OR
CRIME OR
NO ARREST DETENTION
HEARING
OUT OF SYSTEM
INVESTIGATION
CHARGES
DROPPED OR
DISMISSED
RELEASED SENTENCING
WITHOUT
JAIL
INITIAL
PROSECUTION
APPEARANCE
ARREST
RELEASED
WITHOUT
PROSECUTION
PLEA BARGAIN RESTORATIVE
CHARGES FILED JUSTICE
ENTRY INTO THE SYSTEM PROSECUTION AND PRETRIAL SERVICES ADJUDICATION SENTENCING AND SANCTIONS CORRECTIONS
77367_fep_02_and_03_ptg01_hires.indd 1 19/08/15 9:11 PM

Criminal Procedure
Law and Practice
Criminal Procedure
Law and Practice
T E N T H EDIT ION
Rolando V. del Carmen

Sam Houston State University
Craig Hemmens
Washington State University
Australia • Brazil • Mexico • Singapore • United Kingdom • United States
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Rolando V. del Carmen and Craig
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Print Number: 01 Print Year: 2015
This book is dedicated to the many graduate and undergraduate
students and law enforcement personnel I have had over the
years from whom I have learned so much.
—Rolando V. del Carmen
This book is dedicated to my wife and colleague,

Mary K. Stohr, and to the many students I have had who have
taught me so much.
—Craig Hemmens
About
Aboutthe
theAuthor
Author
Rolando V. del Carmen is Distinguished Professor of Criminal

Justice (Law) in the College of Criminal Justice, Sam Houston State
University. In August 2007, he was made a Regents Professor, a rare
honor given by the Board of Regents of the Texas State University
System. He received his B.A. and LL.B. (the equivalent of a J.D.)
degrees from Silliman University in the Philippines, a Master of
Comparative Law (M.C.L.) from Southern Methodist University, a
Master of Laws (LL.M.) from the University of California, Berkeley,
and a Doctor of the Science of Law (J.S.D.) from the University of
Illinois in Champaign-Urbana. He has authored numerous books
and articles on law and criminal justice and has lectured nation-
ally and internationally on various law-related topics. A recipient
of many national and state awards, he has the distinction of having
received all three major awards given by the Academy of Criminal
Justice Sciences (ACJS): the Academy Fellow Award (1990), the
Bruce Smith Award (1997), and the Founder’s Award (2005). He has
taught numerous graduate and undergraduate classes in law and
has been a mentor and friend to many of his students.
Craig Hemmens is Chair and Professor in the Department of

Criminal Justice & Criminology at Washington State University. He
holds a J.D. from North Carolina Central University School of Law
and a Ph.D. in Criminal Justice from Sam Houston State University.
He previously served as Department Head and Professor in the
Department of Criminology and Criminal Justice at Missouri State
University, and as Academic Director of the Paralegal Studies
Program, Chair of the Department of Criminal Justice, and Director
of the Honors College at Boise State University. Professor Hemmens
has published 20 books and more than 200 articles and other writ-
ings. His primary research interest is criminal procedure. He has
served as the editor of the Journal of Criminal Justice Education and on
the editorial board of the Journal of Criminal Justice Education, Criminal
Justice Review, the Prison Journal, Criminal Justice Policy Review, and
Criminal Justice Studies. His publications have appeared in Justice
Quarterly, the Journal of Criminal Justice, Crime and Delinquency, the
Criminal Law Bulletin, and the Prison Journal.
vi
Brief Contents
Chapter 1 The Court System, Sources of Rights, and Fundamental Principles 1
Chapter 2 Overview of the Criminal Justice Process 32
Chapter 3 Probable Cause and Reasonable Suspicion 66
Chapter 4 The Exclusionary Rule 88
Chapter 5 Stop and Frisk and Stationhouse Detention 117
Chapter 6 Arrests and Use of Force 148
Chapter 7 Searches and Seizures of Things 186
Chapter 8 Motor Vehicle Stops, Searches, and Inventories 226
Chapter 9 Plain View, Open Fields, Abandonment, and Border Searches 262
Chapter 10 Lineups and Other Means of Pretrial Identification 289
Chapter 11 Confessions and Admissions: Miranda v. Arizona 326
Chapter 12 Basic Constitutional Rights of the Accused during Trial 368
Chapter 13 Sentencing, the Death Penalty, and Other Forms of Punishment 403
Chapter 14 Legal Liabilities of Law Enforcement Officers 432
Chapter 15 Electronic Surveillance and the War on Terror 463
vii
Contents
Preface xvii Chapter 2
Overview of the Criminal Justice Process 32
Chapter 1 The Procedure before Trial 34
The Court System, Sources of Rights, and Filing of Complaint 34
Fundamental Principles 1 The Arrest 35
Booking at the Police Station 38
The U.S. Court System 2 Initial Appearance before a Magistrate 38
The Federal Court System 3 Setting Bail 40
The State Court System 8 The Preliminary Hearing 41
Where Judicial Decisions Apply 10 The Decision to Charge 43
Stare Decisis and Judicial Precedent 11 Indictment versus an Information 44
The Arraignment 46
Federal versus State Criminal Trials 12 The Plea by the Defendant 46
Jurisdiction versus Venue 13 Plea Bargains 48
Sources of Rights 14 The Procedure during Trial 51
Constitutions 14 The Selection of Jurors 51
Statutory Law 17 Opening Statement by the Prosecution 53
Case Law versus Common Law 18 Opening Statement by the Defense 53
Court Rules 18 Presentation for the Prosecution 54
The Judicial Review Doctrine 19 Presentation for the Defense 55
Rebuttal Evidence 55
The Rule of Law 19 Closing Arguments 55
The Incorporation Controversy 21 Defense Motions before the Verdict 56
Background 21 Instructions to the Jury 57
Approaches to Incorporation 21 Jury Deliberation 57
A Summary of the Four Approaches to The Verdict 57
Incorporation 23 The Procedure after Trial 60
Fundamental Right as the Test for Selective Imposition of Sentence 60
Incorporation 24 Appeal 61
Rights Not Incorporated 24 Habeas Corpus 61
The Result of the Incorporation Controversy:
“Nationalization” of the Bill of Rights 25 Procedural Differences in Jurisdictions 62
Application to Felony Cases 62
Court Cases 25 Variation among States 62
Case Citation 25 Variation within a State 63
How to Brief a Case 27 Ideal versus Reality 63
In Action Jurisdiction and Venue 11 Case Brief Santobello v. New York,
404 U.S. 257 (1971) 50
Case Brief Duncan v. Louisiana, 391
U.S. 145 (1968) 22 In Action Juror Selection 53
ix
In Pretrial Motions 95
Chapter 3 On Appeal 96
Probable Cause and Reasonable Suspicion 66 In Habeas Corpus Proceedings 96
Standing and Illegally Seized Evidence 97
Probable Cause 68
Probable Cause Defined (The Legal Determining What Is Not Admissible 97
Definition) 68 Illegally Seized Evidence (The Primary
A “Man of Reasonable Caution” 68 Evidence) 97
The Practical Definition of Probable Cause 69 Fruit of the Poisonous Tree (The Secondary
Same Definition of Probable Cause in the Evidence) 98
Many Areas of Police Work 70 Exceptions to the Rule 99
Arrest of Persons versus Search and Seizure Category 1: The Good Faith Exception and
of Property 70 Its Many Variations 99
With a Warrant versus without a Warrant 71 Category 2: The Inevitable Discovery
Why Obtain a Warrant? 71 Exception 105
Who Determines Probable Cause? 72 Category 3: The Purged Taint Exception 105
Establishing Probable Cause after an Category 4: The Independent Source
Officer’s Illegal Act 72 Exception 107
Any Trustworthy Information Can Establish
When the Rule Does Not Apply 107
Probable Cause 74
In Violations of the Knock-and-Announce
The Three Ways Whereby Probable Cause Is
Rule 107
Established 74
In Searches by Private Persons 108
Probable Cause and Motor Vehicle Passengers 79
In Grand Jury Investigations 108
Is an Arrest Based on Probable Cause for a
In Sentencing 108
Different Offense Valid? 80
When an Arrest Based on Probable Cause
Reasonable Suspicion 81 Violates State Law 108
Reasonable Suspicion Defined 81 When Only Agency Rules Are Violated 109
The Totality of Circumstances 81 In Noncriminal Proceedings 109
Probable Cause Compared with Reasonable In Parole Revocation Hearings 110
Suspicion 84 Arguments for the Exclusionary Rule 111
Determining Probable Cause or Reasonable Suspicion Arguments against the Exclusionary Rule 111
on Appeal 84 Alternatives to the Exclusionary Rule 112
In Action Search Warrant Affidavit 73 The Future of the Exclusionary Rule 113
Case Brief Spinelli v. United States, 393
Case Brief Mapp v. Ohio, 367 U.S. 643 (1961) 94
U.S. 410 (1969) 77
Case Brief Arizona v. Evans, 514 U.S. 1 (1995) 103
Case Brief Alabama v. White, 496 U.S. 325 (1990) 82
In Action The Exclusionary Rule 110
Chapter 4
Chapter 5
The Exclusionary Rule 88
Stop and Frisk and
The Exclusionary Rule Defined 90 Stationhouse Detention 117
The Purpose of the Rule Is to Deter Police Stop and Frisk 118
Misconduct 90 Issue and Origin 119
A Judge-Made Rule 91 The Leading Case 120
The Guidelines 121
Historical Development 91
Reasonable Suspicion Is Required, not Probable
The Rule Now Applies to State Criminal Cause 122
Prosecutions 93
Two Separate Acts 123
Invoking the Rule 95 The Stop 124
x Contents
A Case Study: Stops and Race in the New York When Exigent (Emergency) Circumstances
City Police Department 134 Are Present 167
The Frisk 135 When There Is Danger to the Officer 167
Stop and Frisk and Arrest Compared 140 Entering a Home without a Warrant 167
Other Stop and Frisk Applications 141 What the Police Can Do after an Arrest 168
Application to Motor Vehicles 141 Police Can Search the Arrestee, Including
Application to Weapons in a Car 143 a Strip Search 168
Application to Residences 143 Police Can Search the Area of Immediate
Control 169
Stationhouse Detention 144 Police Can Search the Passenger Compartment
For Fingerprinting 144 of a Motor Vehicle 170
For Interrogation 145 Police Can Use Handcuffs 170
Case Brief Terry v. Ohio, 392 U.S. 1 (1968) 122 Police Can Monitor the Arrestee’s Movement 170
Case Brief Hiibel v. Sixth Judicial District Court of Police Can Search the Arrestee at the Place of
Nevada, et al., 542 U.S. 177 (2004) 132 Detention 170
Police Can Collect a DNA Sample 171
In Action Stop and Frisk 138
What the Police Cannot Do during an Arrest 171
Police Cannot Enter Third-Party Residences 171
Chapter 6 Police Cannot Conduct a Warrantless Protective
Arrests and Use of Force 148 Sweep Unless Justified 172
Police Cannot Invite the Media to “Ride Along” 172
The Broad Picture: Arrests Are Seizures of Persons 150
Knock-and-Announce Is Required by the Constitution, but
Arrests and the Fourth Amendment 150
with Exceptions 173
Arrest Is Just One Form of Seizure 151
The General Rule 173
The Top Ten Intrusive Searches and
The Exceptions 173
Seizures of Persons 151
How Long Must the Police Wait before
What Is the Legal Test to Determine
Entering? 174
Whether a Seizure Has Occurred? 152
Other Arrest Issues 175
Arrest Defined 153
Can the Police Detain a Suspect while Obtaining a
Forced Detention and Arrest 154
Warrant? 176
The Length of Detention and Arrest 155
Can the Police Arrest for Traffic Violations or Petty
The Four Elements of an Arrest 155 Offenses? 176
Seizure and Detention 155 Are Arrests for Offenses Not Punishable by Prison or
The Intention to Arrest 156 Jail Time Valid? 176
Arrest Authority 158 Are Citizen’s Arrests Valid? 178
Understanding by the Arrestee 158
Use of Force during an Arrest 179
Arrests with a Warrant 158
What Governs Police Use of Force? 179
When Is a Warrant Needed? 161
What the Court Has Ruled in General
The Issuance of a Warrant 162
about Police Use of Force 179
The Contents of a Warrant 163
Nondeadly versus Deadly Force 180
The Service of a Warrant 164
The Use of Nondeadly Force 180
The Time of the Arrest 164
The Use of Deadly Force 181
The Possession and Expiration of a Warrant 165
The Use-of-Force Continuum 183
Other Legal Authorizations 165
In Action What the Police May Do after an
Arrests without a Warrant 166
Arrest 154
Felonies Committed in the Presence of
Officers 166 Case Brief Payton v. New York, 445 U.S. 573
Misdemeanors Committed in the Presence of (1980) 162
Officers 166 Case Brief Atwater v. City of Lago Vista, 532
Crimes Committed in Public Places 166 U.S. 318 (2001) 177
Contents xi
Searches and Seizures of Public Employees Other
Chapter 7
Than Drug Testing 220
Searches and Seizures of Things 186 Squeezing Luggage in a Bus 221
Searches and Seizures by Private Persons 222
The Fourth Amendment as Applied to Things 187
Searches by Off-Duty Officers 222
The Right to Privacy Is a Constitutional Right 188 Surgery to Remove a Bullet from a Suspect 222
“Reasonable Expectation of Privacy” Defined 189 In Action Extending the Scope of a Search 191
Search Defined 190 Case Brief Georgia v. Randolph, 547 U.S. 103 (2006) 204
Seizure Defined 190 Case Brief Chimel v. California, 395 U.S. 752
Searches and Seizures: The General Rule 190 (1969) 206
Things Subject to Search and Seizure 191

The Scope of the Search 191 Chapter 8
The Time Allowed for a Search 192 Motor Vehicle Stops, Searches,
The Procedure after the Search 192 and Inventories 226
Search and Arrest Warrants Compared 193 Vehicle Stops 228
Search and Seizure with a Warrant 193 The General Rule for Stops 229
What the Police Can Do after a Vehicle Stop 230
Four Requirements 193 Traffic Stops as Pretexts for Vehicle Searches 234
Probable Cause 193 Searches with Consent and Freedom to
A Supporting Oath or Affirmation 195 Leave 236
A Description of the Place to Be Searched Passengers are also “Seized” in Traffic Stops 236
and Persons or Things to Be Seized 196 Arrests of Vehicle Passengers 237
The Signature of a Magistrate 198 Roadblocks Do Not Need Reasonable
The Procedure for Serving a Warrant 199 Suspicion 237
Search and Seizure without a Warrant 199 Vehicle Searches 240
The Searches with Consent Exception 200 The Leading Case on Vehicle Searches 242
The Search Incident to Lawful Arrest The Objective Reasonableness Rule in Vehicle
Exception 205 Searches 244
The Exigent Circumstances Exception 206 Automatic Searches during Traffic Citations Are
The Special Needs beyond Law Enforcement Unconstitutional 245
Exception 209 Warrantless Vehicle Searches 245
Public School Searches 210 Police May Search Passenger Compartments 246
Testing Non-College Students for Drugs 211 Police May Search Trunks and Closed Packages 247
Airport Searches 212 Police May Search Containers in a Car 248
Searches of Probationers and Parolees 212 Unresolved: Searches of Locked Trunks or Glove
The Police and Special Needs 213 Compartments 249
Administrative Searches and Inspections 214 Searches When the Arrested Suspect Is Not in the
Vehicle—Questions Remain 250
Warrantless Searches Must Be Contemporaneous 215
Other Motor Vehicle Search and Seizure Issues 251
The Announcement Requirement 215 Searches That Are Not Contemporaneous 251
Other Search and Seizure Issues 215 Warrantless Searches When There Is Time
The Use of Police Dogs in Searches 216 to Obtain a Warrant 252
Searches and Seizures of Computers 217 Warrantless Seizures of Vehicles Found
Searches and Seizures of Text Messages in Public Places 252
in a Cell Phone 218 Warrantless Searches of Motor Homes 253
Government Seizure of E-mails 219 The Use of Electronic Devices to Monitor
Drug Testing Public Employees, Including Police Vehicles 253
Officers 219 Immigration and Border Searches of Vehicles 254
xii Contents
Other Valid Car Searches 255 Detention of Persons for Questioning in
Vehicle Inventory Searches 256 a Border Area 283
Immediately after an Arrest 256 Strip, Body Cavity, and X-ray Searches 283
Vehicles Impounded by Police 257 Detention of Alimentary Canal Smugglers 284
Disassembling the Gas Tank 284
The Importance of State Laws and Department Policies Searching Vehicles away from the Border 284
in Vehicle Stops, Searches, and Inventories 258 Stopping Vehicles at Fixed Checkpoints 285
In Action The License and Registration Factory Survey of Aliens 285
Checkpoint 243 Summary of Case Law on Border Stops and
Case Brief Carroll v. United States, 267 U.S. 132 Searches 285
(1925) 244 Case Brief Horton v. California, 496 U.S.
Case Brief United States v. Ross, 456 U.S. 798 128 (1990) 268
(1982) 250 In Action A Private Poker Game Overheard 271
Case Brief Oliver v. United States, 466 U.S.
170 (1984) 277
Chapter 9
Plain View, Open Fields, Abandonment,
and Border Searches 262 Chapter 10
The Plain View Doctrine 264
Lineups and Other Means of Pretrial
Plain View Defined 264 Identification 289
Requirements of the Doctrine 265 Lineups 291
Situations in Which the Doctrine Applies 266 Right to Counsel during Lineups—It
One of Many Justifications for Admission of Depends 291
Evidence 266 Right to Due Process Applies in Lineups 298
Inadvertence Is No Longer Required 267 No Unreasonable Search and Seizure Is
Plain View and Open Spaces 269 Involved in Lineups 298
Plain View and Motor Vehicles 270 No Right against Self-Incrimination Is
Plain View and Mechanical Devices 270 Involved in Lineups 299
Plain View and Open View Compared 270
Showups 300
Plain View and Plain Touch Compared 270
Right to Counsel during Showups—It
Plain View and Plain Odor Compared 272
Depends 300
The Open Fields Doctrine 272 Right to Due Process Applies in Showups 301
The Open Fields Doctrine Defined 272 No Unreasonable Search and Seizure
Areas Not Included in Open Fields 272 Is Involved in Showups 302
Curtilage 273 No Right against Self-Incrimination Is
A Broader Meaning of Open Fields 276 Involved in Showups 302
Open Fields and Sense-Enhancement
Photographic Identifications 303
Technology 278
No Right to Counsel in Photographic
Open Fields and Plain View Compared 279
Identification 303
Abandonment 279 Right to Due Process Applies in Photographic
Abandonment Defined 279 Identification 303
Guidelines for When Items Are Considered No Unreasonable Search and Seizure Is
Abandoned 279 Involved in Photographic Identification 304
Abandonment of Motor Vehicles 281 No Right against Self-Incrimination Is
Police Actions and Abandonment 281 Involved in Photographic Identification 304
Abandonment and Plain View Compared 282
Problems with Eyewitness Identification 305
Border Searches 282 “Hopelessly Unreliable” 305
Temporary Detention of Aliens Believed to Be No Prescribed Guidelines 306
Illegal 283 Legislative and Judicial Responses 306
Contents xiii
Eyewitness Identification Guidelines 308 Miranda Cases on Appeal: The Harmless Error Rule 363
For Lineups 309 Case Brief Berkemer v. McCarty, 468 U.S. 420
For Showups 311 (1984) 336
For Photographic Identifications 311
In Action A Confession after a Request for a
Other Means of Identifying Suspects 312 Lawyer 351

DNA Testing 312
Case Brief Missouri v. Seibert, 542 U.S. 600
Polygraph Examinations 317
(2004) 354
Breathalyzer Tests 319
Handwriting Samples 320
Hair Samples 321 Chapter 12
Brain Fingerprinting 321 Basic Constitutional Rights of the Accused
Facial Recognition Technology 322 during Trial 368
Case Brief Kirby v. Illinois, 406 U.S. 682 (1972) 294
The Right to Trial by Jury 370
Case Brief United States v. Wade, 388 U.S. Voir Dire 371
218 (1967) 296 Jury Size 371
In ActionPhotographic Identification of a Purse Unanimous versus Nonunanimous Verdicts 371
Snatcher 305 Serious versus Petty Offenses 372
Selecting a Jury of Peers 373
Disqualification of Jurors Based on Race 373
Chapter 11 Disqualification of Jurors Based on Gender 376
Confessions and Admissions: The Right to Counsel 377
Miranda v. Arizona 326 Why Counsel Is Needed 378
How Counsel Is Obtained 379
Before Miranda 328
Automatic Reversal of a Conviction for
Voluntary Confessions 328
Denying Defendant a Paid Lawyer 380
Four Cases Illustrating the Pre-Miranda
The Responsibility of the Defense Lawyer
Voluntariness Test 328
Is to the Client 382
Miranda Rejects Voluntariness as the Sole Test 330 The Right to Court-Appointed Counsel
The Basics of Miranda v. Arizona 331 during the Trial Has Exceptions 382
The Case 332 Proving Ineffective Assistance of Counsel
The Miranda Warnings 333 is Difficult 384
Miranda Required by the Constitution, Not Just by Claims of Ineffective Counsel in Death
Judges 334 Penalty Cases 385
Miranda Must Be Given for All Offenses Except Claim of Ineffective Counsel during Plea
Routine Traffic Stops 335 Bargaining 387
Distinguishing Miranda from the Right to The Right to Act as One’s Own Counsel 387
Counsel 337 The Right to Due Process 388
Miranda May Be Waived Knowingly and The Many Meanings of Due Process 388
Intelligently 338 The Brady Rule on Disclosure of Evidence to the
When Must the Miranda Warnings Be Given? 342 Accused 389
When Is the Suspect in Custody? 343 Cases after Brady 389
When Is the Suspect under Interrogation? 347 The Right against Self-Incrimination 391
Leading Decisions on the Miranda Warnings 349 The Prohibition Applies Only to Testimonial
Situations That Require the Miranda Self-Incrimination, Not to Physical
Warnings 350 Self-Incrimination 391
Situations Not Requiring or Not Fully Applying Testimonial and Nontestimonial Self-Incrimination
the Miranda Warnings 355 Compared 392
Situations in Which the Miranda Warnings Two Separate Privileges during Trial 393
Are Not Needed 359 The Grant of Immunity 395
xiv Contents
Transactional and Use and Derivative Use Civil Liability under State Tort Law 446
Immunity Compared 396 Types of State Tort Cases 446
How the Right Is Waived 396 Other Sources of Police Civil Liability under State
The Right to a Fair and Impartial Trial 397 Tort Law 451
The Prohibition against Prejudicial Publicity 397 Official Immunity Is a Defense in State Tort
Controlling Prejudicial Publicity 398 Cases 452
Federal (Section 1983) and State Tort Cases
Case Brief J. E. B. v. Alabama, 511 U.S. 127 (1994) 376 Compared 453
Case Brief Gideon v. Wainwright, 372 U.S. 335 Differences between Federal Section 1983 and State
(1963) 383 Tort Cases 453
In Action Self-Incriminating Writing If the Police Are Sued 454
on the Wall 393 The Police Officer as Defendant 454
The Police Supervisor as Defendant 455
The City or County as Defendant 456
Chapter 13
Other Consequences of Police Misconduct 457
Sentencing, the Death Penalty, and Other
Prosecution under Federal and State Laws 458
Forms of Punishment 403
Administrative Liability: Agency Investigation
Sentencing 404 and Punishment 458
The Goals and Objectives of Sentencing 405 Exclusion of Illegally Obtained Evidence
Sentencing Disparity 406 (The Exclusionary Rule) 459
When Is a Sentence Considered Cruel and Loss of Law Enforcement License 459
Unusual Punishment? 406 In Action Ignoring the Medical Complaints of
Sentencing Guidelines 407 a Suspect in Custody 436
Sentencing Juvenile Offenders 408
Case Brief Scott v. Harris, 550 U.S. 372 (2007) 440
Types of Sentences 412
Case Brief Groh v. Ramirez, 540 U.S. 551 (2004) 442
The Death Penalty 412
Imprisonment 416
Probation 421 Chapter 15
Intermediate Sanctions 425
Fines, Forfeiture, and Restitution 426 Electronic Surveillance and
the War on Terror 463
Crime Victims’ Rights 427
Victims’ Rights in State Courts 428 Electronic Surveillance 465
Case Brief Weems v. United States, 217 U.S. 349 The Old Concept 465
(1910) 410 The New Concept 466
Case Brief Baze v. Rees, 553 U.S. 35 (2008) 417 Four Federal Laws That Govern Electronic
Surveillance 468
In Action Probation Revocation Proceedings 426
Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 468
Chapter 14 The Electronic Communications and Privacy Act
Legal Liabilities of Law (ECPA) of l986 469
Enforcement Officers 432 The Communications Assistance for Law
Enforcement Act (CALEA) of 1994 470
Lawsuits against Police: An Occupational Hazard 434 The Foreign Intelligence Surveillance Act (FISA)
An Overview of Police Legal Liabilities 435 of 1978 471
Civil Liability under Federal Law 436 Using Electronic Devices from a Public Place 473
What Section 1983 Provides 437 Electronic Tracking Devices That Do Not
Two Requirements for a Section 1983 Lawsuit to Intercept Communication 474
Succeed 437 Pen Registers 474
Defenses in Section 1983 Cases 439 Tracking Devices 474
Contents xv
Cameras to Monitor Tracking and Other Appendix B
Offenders 479
The Constitution of the United States 494
The War on Terror 480
The USA Patriot Act 481
The Department of Homeland Security 482
Terrorism and the Police 484 Appendix C
Legal Issues in the War on Terror 486
Prospects 488
The Top Twenty Cases in Criminal
Procedure 510
Case Brief Katz v. United States, 389
U.S. 347 (1967) 467
In Action A Warrant for a Wiretap Based on an
Glossary 511
Overheard Cell Phone Conversation 472
Case Brief United States v. Jones (2012) 477 Case Index 519
Subject Index 524
Appendix A
Thirty Suggestions on How to Be an Effective
Witness 491
xvi Contents
Preface to the Tenth Edition
T his book was written in an effort to demystify the law and court decisions so
they can more effectively guide the conduct of law enforcement officials and in the
process properly protect the rights of their constituency. Policing a free society is dif-
ficult because it sometimes involves a highly charged situation between the police and
a member of the public. That encounter can be nasty and, sometimes, deadly. In a few
seconds, the officer may be faced with a life-or-death situation for her or him and the
person being confronted. A decision, wrong in hindsight but blurred at that moment,
can lead to serious consequences for both parties. In a few instances, there is no mar-
gin for error. Police officers must know and understand the law so they become more
fully aware of what they can do legally in the course of their high-risk and sometimes
dangerous work. Mistakes cannot be eliminated, but are easier for the public to accept
when made by the officer in good faith. Students of criminal justice, and all citizens,
must understand how the law governs police-citizen encounters.
Organization AND CHANGES TO THE TENTH EDITION

The tenth edition retains the format and chapter sequence of the ninth edition. A deci-
sion was made early on, after comments were received from the reviewers, that the
book’s structure and sequence be preserved. Thus, there are no major changes in struc-
ture and content in this edition. Reviewers indicated they liked the chapter sequencing
and that there were no major topical areas missing. Thus, there are no major changes
in structure and content in this edition. There are no chapters added or deleted. One
minor change to the organization is the addition of sections: the fifteen chapters are
divided into six sections, each containing two to four chapters. We thought this might
assist instructors in organizing their presentation of the material and give them a
clearer sense of how much time should be spent on each section.
The majority of changes to this edition are designed to update case coverage and
related procedural issues. We have also spent considerable effort adding or enhancing
coverage of cutting-edge issues such as bail, the use of force, special needs searches,
voir dire, stop and frisk, racial profiling, seizures of text and e-mail messages, the use
of technology in law enforcement, and much more—all of which we hope results in a
more relevant, current, and engaging textbook. We discuss all the recent Supreme Court
cases through the most recent (2014–2015) term of the U.S. Supreme Court.
In addition to updating the content in each chapter, we have updated the peda-
gogical material, including the Chapter Outline, Key Terms, and Top 5 Cases at the
beginning of each chapter, and added a new feature, Learning Objectives; the Review
Questions, Test Your Understanding, and Recommended Reading at the end of each
xvii
chapter; and the In Action and Highlight boxes, as well as the margin notes and term
definitions. We have also updated Figures and Tables throughout as needed.
Below we note the content changes/updates in each chapter:
Chapter l discusses the court system, court cases, and sources of rights.
Knowledge of criminal procedure starts with understanding how state and federal
courts are structured and work. The student at this early stage must be familiar with
the U.S. Constitution and other sources of rights that set boundaries in policing. We
have clarified the discussion of incorporation and jurisdiction.
Chapter 2 presents an overview of the criminal justice process, which familiarizes
the reader with the entire criminal justice process, from initial contact with the police
to the imposition of sanctions after conviction. It is the foundation of understanding
subsequent chapters that deal with the specifics of how criminal procedure works. We
have added a discussion of recent cases dealing with jury selection and appeals.
Chapters 3 and 4 discuss probable cause, reasonable suspicion, and the exclusion-
ary rule, important terms/concepts in criminal procedure which reoccur throughout
the subsequent chapters. We have added a discussion of recent Supreme Court cases
dealing with probable cause and reasonable suspicion, and clarified some of the dis-
cussion of probable cause.
Chapter 5 discusses stop and frisk and stationhouse detention. Chapter 6 deals with
arrests and the use of force during an arrest. These two chapters probe the extent and
boundaries of the power of the police when dealing with people, as opposed to things.
We have added recent Supreme Court cases on stop and frisk and reasonable suspicion.
Chapters 7, 8, and 9 address searches and seizures of things. This is an important
part of policing, but not as crucial as the previous two chapters on searches and sei-
zures of persons. Unless properly organized and separately discussed, this aspect of
the Fourth Amendment can be confusing. Some textbooks discuss arrests of persons
and searches and seizures of things together—we think this is a major mistake, and
something that sets our textbook apart from the competition. Confusion also results if
searches and seizures of things, covered in Chapter 7, are discussed together with sei-
zures of motor vehicles, discussed in Chapter 8. These two types of searches (of things
and of motor vehicles) are both covered by the Fourth Amendment, but have different
rules and are best addressed separately. A discussion of searches and seizures that are
not fully protected by the Fourth Amendment, covered in Chapter 9, closes this topic
area. These types of searches are best discussed in this section, but deserve a separate
chapter because they do not come under the full umbrella of Fourth Amendment pro-
tection and are governed by different rules. This chapter includes a discussion of related
topics, such as eyewitness testimony and DNA identification that recently have been
the subjects of increased discussion and debate. We have added recent Supreme Court
cases in these areas, and updated some of the material on arrest, use of force, and third-
party searches.
Chapter 10 covers lineups and other means of pretrial identification, and
Chapter 11 covers confessions and admissions and Miranda v. Arizona. These go
together because they are closely related (although their sequence can be interchanged;
confessions and admissions can precede pretrial identifications). Miranda v. Arizona
is arguably the most recognizable case ever decided by the U.S. Supreme Court in
any field of law, not just in criminal procedure. It forms the core of any discussion
on the admissibility of confessions and admissions and virtually defines day-to-day
xviii Preface to the Tenth Edition
police work, particularly out in the field. Chapter 11 analyzes that case and cases sub-
sequently decided that refine the various aspects of admissions and confessions. We
have added a discussion of recent Supreme Court cases dealing with interrogations
and confessions, and clarified some of the discussion of the post-Miranda decisions.
Chapter 12 covers five major constitutional rights of the defendant at trial. We
have added material on voir dire and jury selection.
Chapter 13 covers sentencing, the death penalty, and other forms of punishment.
Although clearly not a part of day-to-day police work, sentencing and punishment
give the reader a complete picture of the criminal justice process and represent the ulti-
mate formal result of police work. We have updated the chapter with recent Supreme
Court cases dealing with the death penalty, in particular the restrictions on to whom
it can be applied.
Chapter 14 covers legal liabilities of public officers and merits a separate chapter
because it affects the totality of the police experience and presents a downside in policing.
Lawsuits filed against law enforcement agents and agencies have influenced modern-day
policing and have led to changes in law enforcement policies and practices. We have added
a discussion of recent Supreme Court cases dealing with law enforcement officer liability.
Chapter 15 covers electronic surveillance and the war on terror. Electronic surveil-
lance has been a part of policing for a long time, but what can be done or cannot be done
has undergone changes in recent due to legislation and Court refinement of constitu-
tional rules. We have updated this chapter with a discussion of the recent Supreme Court
cases dealing with electronic surveillance, as well as current issues in the area. Electronic
surveillance and the war on terror are discussed in the last chapter because some courses
in criminal procedure include them, whereas others do not.
Ancillaries
For the Instructor
MindTap for Criminal Justice from Cengage Learning represents a new approach to a
highly personalized, online learning platform. A fully online learning solution, Mind-
Tap combines all of a student’s learning tools—readings, multimedia, activities, and
assessments into a singular Learning Path that guides the student through the cur-
riculum. Instructors personalize the experience by customizing the presentation of
these learning tools for their students, allowing instructors to seamlessly introduce
their own content into the Learning path via “apps” that integrated into the MindTap
platform. Additionally MindTap provides interoperability with major Learning Man-
agement Systems (LMS) via support for industry standards and fosters partnerships
with third-party educational application providers to provide a highly collaborative,
engaging, and personalized learning experience.
Online Instructor’s Resource Manual includes learning objectives, key terms, a detailed
chapter outline, a chapter summary, lesson plans, discussion topics, student activities,
“What If” scenarios, media tools, a sample syllabus, and an expanded test bank with
30 percent more questions than the prior edition. The learning objectives are correlated
with the discussion topics, student activities, and media tools.
Preface to the Tenth Edition xix
Online Test Bank Each chapter of the test bank contains questions in multiple-
choice, true/false, completion, essay, and new critical thinking formats, with a
full answer key. The test bank is coded to the learning objectives that appear in
the main text, and includes the section in the main text where the answers can be
found. Finally, each question in the test bank has been carefully reviewed by expe-
rienced criminal justice instructors for quality, accuracy, and content coverage so
instructors can be sure they are working with an assessment and grading resource
of the highest caliber.
Cengage Learning Testing Powered by Cognero This assessment software is a flexible,

online system that allows you to import, edit, and manipulate test bank content from
the Criminal Procedure test bank or elsewhere, including your own favorite test ques-
tions; create multiple test versions in an instant; and deliver tests from your LMS, your
classroom, or wherever you want.
Online PowerPoint® Lectures Helping you make your lectures more engaging while
effectively reaching your visually oriented students, these handy M icrosoft Power-
Point slides outline the chapters of the main text in a classroom-ready p resentation.
The PowerPoint slides are updated to reflect the content and organization of the new
edition of the text, are tagged by chapter learning objective, and feature some addi-
tional examples and real-world cases for application and discussion.
For the Student

MindTap for Criminal Justice from Cengage Learning represents a new approach
to a highly personalized, online learning platform. A fully online learning solution,
MindTap combines all of your learning tools—readings, multimedia, activities, and
assessments into a singular Learning Path that guides you through the course.
Acknowledgments
Changes in the tenth edition reflect written comments and suggestions by the reviewers
and editors of the ninth edition. These reviewers are:
Paul McElvein, Erie Community College

James Kellogg, Missouri Baptist University
Greg Plumb, Park University
Gary L. Neumeyer, Arizona Western College
To these colleagues we express thanks for all they have done for this book. They have
improved this book in ways too many to list.
All of the reviewers of the tenth and previous editions are highly respected col-
leagues who teach or have taught courses in criminal procedure. The reviewers of the
eighth and other previous editions include Kelly D. Ambrose, Marshall University;
Kevin Behr, Coastal Bend College; Beth Bjerregaard, University of North Carolina
xx Preface to the Tenth Edition
at Charlotte; Don Bradel, Bemidji State University; Jerry Burnette, New River
Community College; William Castleberry, University of Tennessee at Martin; Susan
Coleman, West Texas A&M University; Edward Donovan, Metropolitan State College
of Denver; Robert Drowns, Metropolitan State University; Catherine Eloranto, Clinton
Community College; Jack Enter, Georgia State University, Atlanta; Lorie Fridell,
Florida State University; James Hague, Virginia Commonwealth University; Robert
Hardgrave, Jr., University of Texas at Austin; William Head, Texas Christian University;
Thomas Hickey, Castleton State College; Louis Holscher, San Jose State University; Tom
Hughes, University of Louisville; Martrice Hurrah, Shelby State Community College;
William D. Hyatt, Western Carolina University; W. Richard Janikowski, University of
Memphis; Judith Kaci, California State University at Long Beach; Raymond Kessler,
Sul Ross State University; Dave Kramer, Bergen Community College; James Miller,
Columbia College; Pamela Moore, University of Texas at Arlington; Patrick Mueller,
Stephen F. Austin State University; Gary Neumeyer, Arizona Western College; Robert
Pagnani, Columbia-Greene Community College; Robert Peetz, Midland College;
Robert Reinertsen, Western Illinois University; Ray Richards, San Jacinto College; Steve
Rittenmeyer, Western Illinois University at Macomb; Clifford Roberson, California
State University at Fresno; Leo Rowe, Troy University; Lore Rutz-Burri, Southern
Oregon University; Joseph Schuster, Eastern Washington State College at Cheney;
Pamella Seay, Edison Community College; Caryl Lynn Segal, University of Texas at
Arlington; Mark Stevens, North Carolina Wesleyan College; Eric Stewart, Community
College of Aurora; Greg Talley, Broome Community College; Roger Turner, Shelby
State Community College; Segrest N. Wailes, Jackson State University; Frank Ziegler,
Northeastern State University; and Alvin Zumbrun, Catonsville Community College.
Their suggestions have guided the revision of this book and have doubtless shaped
this book’s format and content. We want these esteemed colleagues to know we are
deeply and truly grateful.
This tenth and the previous editions would not have been possible without the
help of friends and colleagues. Thanks are due to the following for their contributions:
Mary K. Stohr of Washington State University, Michael S. Vaughn, Jerry Dowling, and
Phillip Lyons of Sam Houston State University; John Scott Bonien, senior assistant attor-
ney general of the state of Washington; Jeffery Walker of the University of Alabama-
Birmingham; David Carter of Michigan State University; Tom Hickey of Castleton
State University; and Judge James W. Bachman of Bowling Green State University.
The hundreds of undergraduate and graduate students we have had the pleasure
of teaching over the years inspired the writing of this book. From them we learned so
much about how legal material can best be learned by students and colleagues in the
criminal justice field. There are too many to list, but we want them to know how much
I value their contributions.
Some of the case briefs in this book are taken, with modification, from the book
Briefs of Leading Cases in Law Enforcement, by Rolando V. del Carmen and Jeffery
T. Walker, which is now in its seventh edition. I thank the publishers of that book for
allowing the use of those briefed cases.
Special and sincere thanks to the personnel at Cengage Publishing Company, all
tested and highly experienced professionals. They improved this book beyond mea-
sure, in both content and format. They are: Carolyn Henderson Meier, Christy Frame,
Valerie Kraus, Kara Kindstrom, Andrei Pasternak, Judy Inouye, and Brittani Morgan.
Preface to the Tenth Edition xxi
Some features are taken from various sources, mostly from government pub-
lications. The authors deeply appreciate the permission given for their inclusion in
this text.
This book derives its strength from the efforts of many people, but the authors
stand alone in accepting blame for its shortcomings. Continuous and critical feedback
from readers is always welcome and deeply appreciated. As previous editions have
shown (and as is true of all written work), feedback from readers ensures better future
editions. To all who have provided solicited or unsolicited feedback for the ninth and
past editions, thank you for your help.
A Text for a National Audience

This text is written for a national audience, not just for readers in a few states. Policing
in the United States is mainly a state and local concern; thus it is not enough for police
officers to know the content of this text. Knowledge of specific state law, court decisions,
or agency policy is a must in law enforcement in the United States. In case of doubt and
where an actual case is involved, users of this text are strongly advised to read their
own state laws or consult a knowledgeable lawyer for authoritative guidance.
Toward a Demystification of the Law

This text aims to help demystify law and court decisions so they can more effectively
guide the conduct of the police and in the process protect citizens’ constitutional rights
even more effectively. It is hoped that this book contributes in some small way to
achieving that goal—in the interest of society and for the benefit of law enforcement
officers who risk their lives daily so the rest of us can enjoy safety and peace.
Rolando V. del Carmen

Distinguished Professor of Criminal Justice (Law) and Regents Professor
College of Criminal Justice
Sam Houston State University
Craig Hemmens
Department of Criminal Justice and Criminology
Washington State University
xxii Preface to the Tenth Edition
Chapter 1
The Court System, Sources of Rights,

and Fundamental Principles
LEARNING OBJ ECTIVES Ke y T er m s judicial precedent

judicial review
Bill of Rights
1. Differentiate between the federal and court systems. jurisdiction
case-by-case
2. Explain the dual court system. incorporation original jurisdiction
3. Explain the effect of a court’s decision upon territorial case citation rule of four
jurisdiction. case law rule of law
4. Distinguish which criminal acts can be prosecuted in both common law selective incorporation
federal and state courts. stare decisis
double jeopardy
5. Contrast the legal concepts of jurisdiction and venue. dual court system statutory law
6. Describe the sources of legal rights within the United States. dual sovereignty total incorporation
7. Define the legal concept of judicial review. due process clause total incorporation plus
8. Describe the concept of “Rule of Law.” en banc venue
9. Identify the components of a case brief. incorporation
10. Construct a case brief when given a case. controversy
©James Steidl/Shutterstock.com
C ha pt er O u tlin e
I
The U.S. Court System N THIS CHAPTER, we first focus on the structure of federal and state
The Federal Court System
court systems in the United States.
The State Court System
Criminal cases in the United States may be tried in federal and state
Where Judicial Decisions Apply
courts if the act constitutes violation of the laws of both jurisdictions.
State Decisis and Judicial However, most criminal cases are tried in state courts, because main-
Precedent
taining peace and order is primarily the responsibility of state and local
Federal versus State Criminal
governments. Important topics covered in this chapter include the terri-
Trials
torial effect of judicial decisions, the principle of judicial precedent based
Jurisdiction versus Venue
on stare decisis, the extent of federal and state jurisdiction, the principle
Sources of Rights
of dual sovereignty, the legal concepts of jurisdiction and venue, and the
Constitutions
Statutory Law various sources of individual rights. The chapter discusses the incorpo-
Case Law versus Common Law ration controversy—how it developed and what role it plays in deter-
Court Rules mining which constitutional rights now also extend to an accused in state
The Judicial Review Doctrine prosecutions. It ends with a discussion of the rule of law.
The Rule of Law
The Incorporation Controversy
Background The U.S. Court System
Approaches to Incorporation
A Summary of the Four Approaches to The United States has a dual court system, meaning that there is one sys-
Incorporation
tem for federal cases and another for state cases (see Figure 1.1). The term
Fundamental Right as the Test for Selective
Incorporation dual court system is, however, misleading. In reality, the United States has
Rights Not Incorporated fifty-two separate judicial systems, representing the court systems in
The Result of the Incorporation Controversy: the fifty states, the federal system, and the courts of Washington, D.C.
“Nationalization” of the Bill of Rights But because these systems have much in common, they justify a general
Court Cases grouping into two: federal and state.
Case Citation
How to Brief a Case
Figure 1.1 The Dual Court System
Federal Courts State Courts
U.S. Supreme Court State supreme court
dual court system

Intermediate
the United States has two U.S. Courts of Appeals
appellate courts
court systems: one for
federal cases and another
for state cases.
U.S. District Courts Trial courts
of general jurisdiction
Magistrate Courts
Lower courts
2 Chapter 1
The Federal Court System
Article III, Section 1 of the U.S. Constitution provides that
The judicial Power of the United States shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish. The Judges,
both of the supreme and inferior Courts, shall hold their Offices during good Behavior,
and shall, at stated Times, receive for their Services a Compensation, which shall not be
diminished during their continuance in office.
The highest court in the federal court system is the U.S. Supreme Court (see
Figure 1.1). (Note: Whenever the word Court is used with a capital C in this text, the
reference is to the U.S. Supreme Court. The word court with a lowercase c refers to all
other courts on the federal or state level.) It is composed of a chief justice and eight
associate justices, all of whom are nominated and appointed by the president of the
United States with the advice and consent of the Senate (see Figure 1.2).
A federal law passed in 1869 fixed the number of U.S. Supreme Court justices
at nine, but this number can be changed by law. Supreme Court justices enjoy life
tenure and may be removed only by impeachment, which very rarely occurs. The
Figure 1.2 The Federal Court System
Supreme Court
of the United States
United States United States

Court of Appeals Court of Appeals
12 circuits for the Federal Circuit
Appeals from U.S. U.S. U.S. U.S. U.S. Administrative

state courts Tax Court District Courts District Courts Claims Court of agencies
in 50 states, and various with federal with federal Courts International
from the administrative and local jurisdiction Trade Merit Systems
Supreme agencies jurisdiction only Board, Board
Court of of Contract
Puerto Rico, Federal Trade Guam 89 districts Appeals,
and from Commission, in 50 states Patent/
the District National Virgin Islands Trademark
of Columbia 1 in District
Labor Northern Boards,
Court of Columbia
Relations Mariana International
of Appeals Board, Immi- Islands 1 in Puerto Trade
gration and Rico Commission,
Naturalization etc.
Service, etc.
The Court System, Sources of Rights, and Fundamental Principles 3
Court is located in Washington, D.C., and always decides cases en banc (as one body),
en banc
never in division (small groups or panels). The votes of five justices are needed to win
as one body.
a case. The Court meets to hear arguments and decide cases beginning on the first
Monday in October and continues sessions usually through the end of June of the
following year. Court cases are argued and decisions are announced during this time,
although the Court holds office throughout the year. Members of the U.S. Supreme
Court are called justices. All others, from the U.S. Court of Appeals down to the lower
courts, are called judges.
Exhibit 1.1 • A Brief Overview of the Supreme Court
The Supreme Court of the United States of September 24, 1789 (1 Stat. 73). It was organized on
February 2, 1790.
The Supreme Court consists of the chief justice of Jurisdiction. According to the Constitution
the United States and such number of associate (Art. III, §2):
justices as may be fixed by Congress. The number of “The judicial Power shall extend to all Cases,
associate justices is currently fixed at eight (28 U.S.C. in Law and Equity, arising under this Constitution,
§1). Power to nominate the justices is vested in the the Laws of the United States, and Treaties made, or
president of the United States, and appointments which shall be made, under their Authority;—to all
are made with the advice and consent of the Senate. Cases affecting Ambassadors, other public Ministers
Article III, §1, of the Constitution further provides and Consuls;—to all Cases of admiralty and maritime
that “[t]he Judges, both of the supreme and inferior Jurisdiction;—to Controversies to which the United
Courts, shall hold their Offices during good States shall be a Party;—to Controversies between
behaviour, and shall, at stated Times, receive for two or more States;—between a State and Citizens of
their Services, a Compensation, which shall not be another State;—between Citizens of different States;—
diminished during their Continuance in Office.” between Citizens of the same State claiming Lands
Court officers assist the Court in the performance under Grants of different States, and between a State,
of its functions. They include the administrative or the Citizens thereof, and foreign States, Citizens or
assistant to the chief justice, the clerk, the reporter of Subjects.
decisions, the librarian, the marshal, the court coun- “In all Cases affecting Ambassadors, other public
sel, the curator, the director of data systems, and the ministers and Consuls, and those in which a State
public information officer. The administrative assistant shall be Party, the supreme Court shall have original
is appointed by the chief justice. The clerk, reporter of Jurisdiction. In all the other Cases before mentioned,
decisions, librarian, and marshal are appointed by the the supreme Court shall have appellate jurisdiction,
Court. All other Court officers are appointed by the both as to Law and Fact, with such Exceptions, and
chief justice in consultation with the Court. under such Regulations as the Congress shall make.”
Constitutional Origin. Article III, §1, of the Appellate jurisdiction has been conferred upon
Constitution provides that “[t]he judicial Power of the the Supreme Court by various statutes, under the
United States, shall be vested in one supreme Court, authority given Congress by the Constitution. The
and in such inferior Courts as the Congress may from basic statute effective at this time in conferring and
time to time ordain and establish.” The Supreme Court controlling jurisdiction of the Supreme Court may be
of the United States was created in accordance with found in 28 U.S.C. §1251 et seq., and various special
this provision and by authority of the Judiciary Act statutes.
4 Chapter 1
Rule-Making Power. Congress has from time to federal departments and agencies, and members of
time conferred upon the Supreme Court power to pre- Congress.
scribe rules of procedure to be followed by the lower The Term. The term of the Court begins, by law,
courts of the United States. See 28 U.S.C. §2071 et seq. on the first Monday in October and lasts until the first
The Building. The Supreme Court is open to the Monday in October of the next year. Approximately
public from 9 a.m. to 4:30 p.m., Monday through Friday. 8,000 petitions are filed with the Court in the course of
It is closed Saturdays, Sundays, and the federal legal a term. In addition, some 1,200 applications of various
holidays listed in 5 U.S.C. §6103. Unless the Court or kinds are filed each year that can be acted upon by a
the chief justice orders otherwise, the clerk’s office is single justice.
open from 9 a.m. to 5 p.m., Monday through Friday, Source: The Supreme Court of the United States, “About the
except on those holidays. The library is open to mem- Supreme Court,” http://www.supremecourtus.gov/about
bers of the bar of the Court, attorneys for the various /briefoverview.pdf. Modified by the author.
The Court has original jurisdiction, meaning the case is brought to the Court original jurisdiction
directly instead of on appeal, over certain cases as specified in the Constitution. The the case is brought to the
vast majority of cases, however, reach the Court either on appeal or on a writ of certiorari. court directly instead of on
appeal.
A third way—by certification—is rarely used; and a fourth method—through a writ of
error—was discontinued in 1928.1 The Court reviews cases on appeal because it must.
In reality, however, the Court does not have to consider a case on appeal on its merits,
because it can avoid full consideration by saying that the case “lacks substantial federal
question” to deserve full consideration by the Court.
The Court generally has discretion to decide what cases it wants to hear. Most
cases (about 85 percent) get to the Supreme Court from the lower courts on a writ of
certiorari, which is defined as “an order by the appellate court which is used when the
court has discretion on whether or not to hear an appeal.”2 In writ of certiorari cases,
the rule of four applies, meaning that at least four justices must agree for the Court to rule of four
consider a case on its merits. If the case fails to obtain four votes for inclusion in the at least four justices must
Court docket, the decision of the court where the case originated (usually a federal agree for the court to
consider the case on its
court of appeals or a state supreme court) prevails.
merits.
About 10,000 cases reach the Supreme Court each year from various federal and
state courts, but the Court renders written decisions on only a limited number (75
cases during the 2011 term, 78 cases during the 2012 term, and 72 cases during the 2013
term). The rest are dismissed per curiam, meaning that the decision of the immediate
lower court in which the case originated (whether it was a state supreme court, a fed- Myth vs. Reality
eral court of appeals, or any other court) is left undisturbed.
Myth Anyone can appeal
Not accepting a case does not mean that the Supreme Court agrees with the decision of
their case to the Supreme
the lower court. It simply means that the case could not get the votes of at least four justices Court.
to give it further attention and consider it on its merits. The public perception that only the Fact The Supreme Court
most important cases are accepted and decided by the Supreme Court is not necessarily only accepts cases that
true. Cases generally get on the Supreme Court docket because at least four justices voted involve a federal statute or a
“significant federal question.”
to include the case. The standard used for inclusion is left to individual justices to decide. Many lawsuits do not involve
these subjects and so are
The Federal Courts of Appeals Next to the Supreme Court in the federal judicial hier- not eligible for review by the
Supreme Court.
archy are the U.S. courts of appeals, officially referred to as the U.S. Court of Appeals
Table 1.1 The Justices of the U.S. Supreme Court
Name Born Age Appt. by Senate First day/ Previous positions

at conf. Length of
appt. vote service
John January 27, 50 George W. 78–22 September 29, Circuit Judge, Court of Appeals for the D.C. Circuit (2003–2005); Private practice
Roberts 1955 (age Bush 2005/6 years, (1993–2003); Professor, Georgetown University Law Center (1992–2005);
(Chief 57) in 4 months Principal Deputy Solicitor General (1989–1993); Private practice (1986–1989);
Justice) Buffalo, Associate Counsel to the President (1982–1986); Special Assistant to the Attorney
New York General (1981–1982)
Antonin March 11, 50 Ronald 98–0 September 26, Circuit Judge, Court of Appeals for the D.C. Circuit (1982–1986); Professor,
Scalia 1936 Reagan 1986/25 years, University of Chicago Law School (1977–1982); Assistant Attorney General
(age 75) 4 months (1974–1977); Professor, University of Virginia School of Law (1967–1974); Private
in Trenton, practice (1961–1967)
New Jersey
Anthony July 23, 51 Ronald 97–0 February 18, Circuit Judge, Court of Appeals for the Ninth Circuit (1975–1988); Professor,
Kennedy 1936 (age Reagan 1988/23 years McGeorge School of Law, University of the Pacific (1965–1988); Private practice
75) in (1963–1975)
Sacramento,
California
Clarence June 23, 43 George H. 52–48 October 23, Circuit Judge, Court of Appeals for the D.C. Circuit (1990–1991); Chairman, Equal
Thomas 1948 (age W. Bush 1991/20 years, Employment Opportunity Commission (1982–1990); legislative assistant for
63) in 3 months Missouri Senator John Danforth (1979–1981); employed by Monsanto Company
Pin Point, Inc. (1977–1979); Assistant Attorney General in Missouri under State Attorney
Georgia General John Danforth (1974–1977)
Ruth March 15, 60 Bill Clinton 96–3 August 10, Circuit Judge, Court of Appeals for the D.C. Circuit (1980–1993); General Counsel,
Bader 1933 (age 1993/18 years, American Civil Liberties Union (1973–1980); Professor, Columbia Law School
Ginsburg 78) in New 5 months (1972–1980); Professor, Rutgers University School of Law (1963–1972)
York City
Stephen August 15, 56 Bill Clinton 87–9 August 3, Chief Judge, Court of Appeals for the First Circuit (1990–1994); Circuit Judge,
Breyer 1938 (age 1994/17 years, Court of Appeals for the First Circuit (1980–1990); Professor, Harvard Law School
73) in San 5 months (1967–1980)
Francisco,
California
Samuel April 1, 55 George 58–42 January 31, Circuit Judge, Court of Appeals for the Third Circuit (1990–2006); Professor, Seton
Alito 1950 (age W. Bush 2006/6 years Hall University School of Law (1999–2004); U.S. Attorney for the District of New
61) in Jersey (1987–1990); Deputy Assistant Attorney General (1985–1987); Assistant to
Trenton, the Solicitor General (1981–1985); Assistant U.S. Attorney for the District of New
New Jersey Jersey (1977–1981)
Sonia June 25, 55 Barack 68–31 August 8, Circuit Judge, Court of Appeals for the Second Circuit (1998–2009); District
Sotomayor 1954 (age Obama 2009/2 years, Judge, District Court for the Southern District of New York (1992–1998); Private
57) in New 5 months practice (1984–1991); Assistant District Attorney, New York County, New York
York City (1979–1984)
Elena April 28, 50 Barack 63–37 August 7, Solicitor General of the United States (2009–2010); Dean of Harvard Law School
Kagan 1960 (age Obama 2010/1 year, (2003–2009); Professor, Harvard Law School (2001–2003); Visiting Professor,
51) in New 5 months Harvard Law School (1999–2001); Associate White House Counsel (1995–1999);
York City Deputy Director of the Domestic Policy Council (1995–1999); Professor, University
of Chicago Law School (1995); Associate Professor, University of Chicago Law
School (1991–1995)
Source: Biographies of Current Justices of the Supreme Court, http://www.supremecourt.gov/about/biographies.aspx
for a particular circuit (see Figure 1.3). These courts have 179 judgeships located in
thirteen judicial “circuits.” Of these thirteen circuits, twelve are identified by region,
including one solely for the District of Columbia. The Thirteenth Circuit is the Court
of Appeals for the Federal Circuit, which has jurisdiction throughout the country on
certain types of cases based on subject matter. Each circuit (other than that for the
District of Columbia and the Federal Circuit) covers three or more states and hears
cases from these states. For example, the Fifth Circuit covers the states of Texas,
6 Chapter 1
Mississippi, and Louisiana, whereas the Tenth Circuit includes the states of Utah,
Wyoming, Colorado, Kansas, New Mexico, and Oklahoma.
Each court has six or more judges, depending on the circuit’s caseload. The First
Circuit has six judges, whereas the Ninth Circuit has twenty-nine. Judges of the courts
of appeals are nominated and appointed by the president of the United States for life,
with the advice and consent of the Senate, by a majority vote, and can be removed only
by impeachment. Unlike the Supreme Court, courts of appeals may hear cases as one
body (en banc) or in groups (in divisions) of three or five judges.
The Federal District Courts Occupying the lowest level in the hierarchy of federal
courts are the district courts, the trial courts for federal cases. The federal government
has 677 federal judgeships located in ninety-four judicial districts in the United States,
Guam, Puerto Rico, and the Virgin Islands. Each state has at least one judicial district,
but some states have as many as four. Judges are nominated and appointed by the
president of the United States for life, with the advice and consent of the Senate, and
can be removed only by impeachment. In practice, the senior U.S. senator from the
state makes the recommendation for the appointment if he or she belongs to the presi-
dent’s political party.
Figure 1.3 Geographical Boundaries of the U.S. Courts of Appeal and District Courts
W E
1
2
7 W
W N
8 E
E W S
N N W M
E
N N W 3 E
9 S N
E S
C N
10 W S 6 S E D.C. Circuit
S W Federal Circuit
E
E W
W M E
N E
C
W W M 4
E E N
S W N N
11
N
M M S
S
5 W S
E
W M N
9 E C
9 Population 245 Million
S States 50 S
Districts 94
District judgeships 575
9 Guam 1 Puerto Rico Circuits 13
Circuit judges 168
9 N. Mariana 3 Virgin Islands Supreme Court justices 9
Islands
Source: Russell Wheeler and Cynthia Harrison, Creating the Federal Judicial System, 2nd ed. (Washington, D.C.: Federal Judicial Center, 1996), p. 26.
The Federal Magistrate Courts Also under the federal system are the U.S. magistrate
courts, established primarily to relieve district court judges of heavy caseloads. They
are presided over by U.S. magistrates and have limited authority, such as trying minor
offenses and misdemeanor cases in which the possible penalty is incarceration for one
year or less. They are also empowered to hold bail hearings, issue warrants, review
habeas corpus petitions, and hold pretrial conferences in civil and criminal cases.
Unlike other federal court judges, whose offices are created by Article III (the judi-
ciary article) of the Constitution, the offices of federal magistrates were created by the
Congress of the United States. Magistrates are appointed by federal court judges in
that district and are not guaranteed life tenure. As of 2014, there were 551 magistrate
judge positions. U.S. magistrate courts do not constitute a separate court in the federal
courts system. Instead, they are part of the federal district court system.
The Federal Courts and the Public
With certain very limited exceptions, each step of the federal judicial process is open
to the public. Federal courthouses are designed to inspire in the public a respect for
the tradition and purpose of the American judicial process, and many courthouses are
historic buildings.
A citizen who wishes to observe a court in session may go to a federal courthouse,
check the court calendar, which is posted on a bulletin board or television monitor, and
watch any proceeding. Anyone may review the file and papers in a case by going to the
clerk of court’s office and asking to review or copy the appropriate case file. Increasingly,
court schedules, dockets, judgments, opinions, and pleadings are being made available
to the public in electronic format through the Internet. Unlike most of the state courts,
however, the federal courts do not permit television or radio coverage of trial court
proceedings.
The right of public access to court proceedings is partly derived from the
Constitution and partly from court and common law tradition. By conducting their
judicial work in public view, judges enhance public confidence in the courts, and they
allow citizens to learn firsthand how our judicial system works.
In a few, limited situations the public may not have full access to court records and
court proceedings. In a high-profile trial, for example, there may not be enough space
in the courtroom to accommodate everyone who would like to observe. Access to the
courtroom also may be restricted for security or privacy reasons, such as the protection
of a juvenile or a confidential informant. Finally, certain documents may be placed
under seal by the judge, meaning that they are not available to the public. Examples
of sealed information include certain types of confidential business records, certain law
enforcement reports, juvenile records, and cases involving national security issues.
Source: The Federal Court System in the United States: An Introduction for Judges and Judicial Administrators in Other
Countries, 3rd ed, p. 11.
The State Court System

The structure of the state court system varies from state to state. In general, however,
state courts follow the federal pattern. This means that most states have one state
supreme court, which makes final decisions on cases involving state laws and provi-
sions of the state constitution. Texas and Oklahoma, however, have two highest courts—
one for civil cases and the other for criminal cases (see Figure 1.4a and Figure 1.4b).
State courts decide nearly every type of case but are limited by the provisions of the
U.S. Constitution, their own state constitution, and state law.
Below the state supreme court in the state judicial hierarchy are the intermediate
appellate courts. Only thirty-five of the fifty states have intermediate appellate courts.
8 Chapter 1
Figure 1.4a Texas Court Structure Figure 1.4b Oklahoma Court Structure
ALABAMA COURT STRUCTURE, 2002 CALIFORNIA COURT STRUCTURE, 2002
SUPREME COURT
9 justices sit in panels of 5 or en banc SUPREME COURT A
Supreme Court case types:
Court of
• Mandatory jurisdiction in civil (over $50,000), administrative agency, 7 justices sit en banc
last resort
disciplinary, original proceeding cases.
• Discretionary jurisdiction in civil, noncapital criminal, administrative Supreme Court case types:
agency, juvenile, advisory opinion, original proceeding, interlocutory
Court of
decision cases. • Mandatory jurisdiction in capital criminal, disciplinary cases. last resort
• Discretionary jurisdiction in civil, noncapital criminal, administrative agency,
juvenile, original proceeding, interlocutory decision cases.
COURT OF CIVIL APPEALS COURT OF CRIMINAL APPEALS
5 judges sit in panels 5 judges sit en banc
Intermediate
Supreme Court case types: Supreme Court case types:
appellate
• Mandatory jurisdiction in civil (less than $50,000), • Mandatory jurisdiction in capital criminal, criminal, courts
domestic relations, administrative agency, juvenile, juvenile, original proceeding, interlocutory decision
original proceeding cases. cases.
• No discretionary jurisdiction. • No discretionary jurisdiction.
CIRCUIT COURT (41 circuits) A

142 judges COURTS OF APPEAL (6 courts/districts) A
• Tort, contract, real property rights ($3,000/no maximum). Civil appeals
105 justices sit in panels
jurisdiction. Court of Intermediate
general
• Domestic relations.
• Felony, misdemeanor, DWI/DUI. Exclusive criminal appeals jurisdiction • Mandatory jurisdiction in civil, noncapital criminal, administrative agency, appellate
jurisdiction. court
• Juvenile. juvenile cases.
Jury trials.
• Discretionary jurisdiction in administrative agency, original proceeding,
interlocutory decision cases.
PROBATE COURT (68 courts) MUNICIPAL COURT (258 courts)

68 judges 174 judges
Supreme Court case types: Supreme Court case types:
• Exclusive mental health, estate • Misdemeanor, DWI/DUI.
jurisdiction; real property rights. • Moving traffic, parking, miscellaneous traffic.
• Adoption. Exclusive ordinance violation jurisdiction.
No jury trials. No jury trials.
SUPERIOR COURT (58 countries) A

Courts of
DISTRICT COURT (67 districts) limited 1,498 judges, 414 commissioners and referees
jurisdiction
102 judges Supreme Court case types:
• Tort, contract, real property rights ($3,000/10,000). Exclusive small • Tort, contract, real property rights ($25,000/no maximum), miscellaneous
claims jurisdiction ($3,000). civil. Exclusive small claims, estate, mental health, civil appeals. [Limited Court of
• Interstate support. general
• Felony, misdemeanor, DWI/DUI
jurisdiction: tort, contract, real property rights (0/$25,000).]
• Moving traffic, miscellaneous traffic.
jurisdiction
• Exclusive domestic relations.
• Juvenile.
• Preliminary hearings. • Felony, DWI/DUI. Exclusive criminal appeals jurisdiction.
No jury trials.
• Exclusive juvenile jurisdiction.
Jury trials except in appeals, domestic relations, and juvenile cases.
The Court System, Sources of Rights, and Fundamental Principles

9
Where such courts do not exist, cases appealed from the trial courts go directly to the
state supreme court. Each state has trial courts with general jurisdiction, meaning that
they try civil and criminal cases. They go by various names, such as circuit court, dis-
trict court, or court of common pleas. New York’s court of general jurisdiction is called
the supreme court. Although these courts are of general jurisdiction, some states divide
them according to specialty areas, such as probate, juvenile, and domestic relations.
At the base of the state judicial hierarchy are courts of limited jurisdiction, such
as county courts, justice of the peace courts, and municipal courts. They have limited
jurisdiction in both civil and criminal cases and also decide cases involving local ordi-
nances passed by county or city governments. Unlike federal court judges, who are
appointed by the president with the advice and consent of the Senate, a great majority
of state court judges are elected.
Where Judicial Decisions Apply

The power of every U.S. court to try and decide cases is limited in some way. One
type of limitation is territorial or geographic. A judicial decision is authoritative and
has value as precedent for future cases only within the geographic limits of the area in
which the deciding court has jurisdiction. Consequently, U.S. Supreme Court decisions
on questions of federal law and the Constitution are binding on all U.S. courts because
the whole country is under its jurisdiction. Decisions of a federal court of appeals are
the last word within that circuit if there is no Supreme Court action. The First Circuit
Court of Appeals, for example, settles federal issues for Maine, Massachusetts, New
Hampshire, Rhode Island, and Puerto Rico, the areas within its jurisdiction. When a
district court encompasses an entire state, as is the case in Maine or Alaska, its decision
on a federal law produces a uniform rule within the state. However, in a state such as
California, where there are multiple districts, there can be divergent and even conflict-
ing decisions even on the district court level.
The same process operates in the state court systems, but in one regard, state
supreme court decisions are recognized as extending beyond state borders. Because
the Constitution declares the sovereignty of the states within the area reserved for state
control, the court of last resort in each state is the final arbiter of issues of purely state
and local law. For example, the Idaho Supreme Court’s interpretation of a state statute
or municipal ordinance will be respected as authoritative even by the U.S. Supreme
Court—unless it involves a constitutional question, in which case the U.S. Supreme
Court becomes the final arbiter.
The existence of a dual court system and the limited jurisdictional reach of the vast
majority of courts make it highly probable that courts will render conflicting decisions
on a legal issue. The appellate process provides a forum for resolving these conflicts if
the cases are appealed. If no appeal is made, the conflict remains. For example, a fed-
eral district court in the Western District of North Carolina may rule that jail detainees
are entitled to contact visits, while another federal district court in the Eastern District
of North Carolina, in a different case, may rule otherwise. However, this inconsistency
will be resolved only if the federal appellate court for North Carolina (the Fourth
Circuit) decides the issue in an appealed case.
Despite the territorial or geographic limitations of court decisions, there are impor-
tant reasons why decisions from other jurisdictions should not be ignored. First, there
10 Chapter 1
In Action Jurisdiction and Venue
Frank Roberts is a 32-year-old grocery store tries to escape, but he catches up to her and pushes her
clerk living in Pullman, Washington. His former girlfriend to the ground. A neighbor walking his dog asks what is
Pamela Perkins (they broke up several months ago) lives going on, and Frank punches him in the face. Fortunately,
about ten miles away, across the state line in Moscow, a police officer happens by at this moment, and is able to
Idaho. On the evening of February 14, 2015, Frank goes to arrest Frank without further incident.
visit Pamela at her home in Moscow to ask her if they can You are a college student in a criminal procedure class,
renew their relationship; when she declines, he becomes and your professor has assigned you to review this matter
angry and strikes her with his fist, knocking her down. He and identify the following:
then picks her up and forces her to go outside and get in
1. What possible charges does Frank Roberts face?
his car. She protests, asking him to leave her alone, but
2. What court(s) may have jurisdiction and venue over
he ignores her pleas. He then drives back to his home in
Frank Roberts?
Pullman. When he arrives, Pamela jumps out of the car and
may be no settled law on an issue in a given area. When the issue has not been decided
previously by a local court (known as a case of first impression), the local federal or state
court will probably decide it on the basis of the dominant, or “better,” rule that is being
applied elsewhere. The second reason is that law is evolving, not stagnant. Over time,
trends develop. When a particular court senses that its prior decisions on an issue are
no longer in the mainstream, it may consider revising its holding, especially if the issue
has not been settled by the U.S. Supreme Court. The decisions in other jurisdictions may
enable lawyers to detect a trend and anticipate what local courts might do in the future.
Stare Decisis and Judicial Precedent

Stare decisis is a Latin term that means “to abide by, or adhere to, decided cases.” stare decisis
Courts generally adhere to stare decisis: When a court has laid down a principle of to abide by, or adhere to,
law as applicable to a certain set of facts, it will follow that principle and apply it to all decided cases.
future cases with similar facts and circumstances. The judicial practice of stare decisis
leads to judicial precedent, meaning that decisions of courts have value as precedent judicial precedent
for future cases with similar fact patterns. These terms are often used interchangeably decisions of courts have
because they vary only slightly in meaning. The principle of stare decisis ensures pre- value as precedent for
future cases similarly
dictability of court decisions, whereas judicial precedent is a process courts follow as a
circumstanced.
result of stare decisis. Judicial precedent is made possible by stare decisis.
A decision is precedent only for cases that come within that court’s jurisdiction.
For example, the decisions of the Fifth Circuit Court of Appeals are valued as prec-
edent only in the states (Texas, Louisiana, and Mississippi) within the territorial juris-
diction of the court. By the same token, the decisions of the Florida Supreme Court are
precedent only in cases decided by Florida courts. U.S. Supreme Court decisions are
precedent for cases anywhere in the United States. For example, the case of Miranda v.
Arizona is precedent for cases involving custodial interrogation, so all cases decided in
the United States on that issue must be decided in accordance with Miranda. Variations
do occur, however, because the facts of cases differ. Therefore, the Court can refine,
modify, or expand the Miranda doctrine. Moreover, judicial precedent can be discarded
at any time by the court that decided it. Miranda has been modified and refined by
the Court a number of times in subsequent cases (see Chapter 11, “Confessions and
Admissions”). Although it is unlikely, the Court could also abandon the Miranda doc-
trine at any time or prescribe a different rule, depending on what the Court determines
is required by the Constitution. All that is needed to overturn a judicial precedent are
the votes of at least five justices of the Court.
The most binding kind of precedent is that set by cases decided by the U.S.
Supreme Court. The decision of any court, however, can set a precedent. Sometimes,
lower courts do not follow a precedent set by a higher court. In these cases, the appel-
late court can reverse the lower court decision on appeal.
Federal versus State Criminal Trials

The rule that determines whether a criminal case should be filed and tried in federal or
state court is this: If an act is a violation of federal law, the trial will be held in a federal
court; if an act is a violation of state law, the trial will be held in a state court. A crime
that violates both federal and state laws (such as kidnapping, transportation of narcot-
ics, counterfeiting, or robbery of a federally insured bank) may be tried in both federal
and state courts if the prosecutors so desire. For example, if X robs the Miami National
Bank, X can be prosecuted for the crime of robbery under Florida law and also for rob-
bery of a federally insured bank under federal law. The prosecutions are for the same
act but involve two different laws and two different jurisdictions. There is no double
dual sovereignty jeopardy because of the concept of dual sovereignty, which means that federal and state
federal and state governments are each considered sovereign in their own right.
governments are both The Oklahoma City bombing cases provide relevant examples. The two defen-
considered sovereign.
dants in that crime were convicted in federal court. Timothy McVeigh was given the
death penalty and subsequently executed. The other defendant, Terry Nichols, was
also convicted in federal court and given life imprisonment with no possibility of
parole. He was later tried in an Oklahoma state court, convicted of 161 state mur-
der charges, and sentenced to life times 161. This did not constitute double jeopardy
because of dual sovereignty.
Myth vs. Reality Defendants can also be tried in two different states for essentially the same crime,
if the crime or an element thereof was committed in those states. For instance, if some-
Myth Double jeopardy
prevents someone from one kidnaps a person in Pullman, Washington, and drives him or her eight miles across
being punished twice for the border to Moscow, Idaho, that person has committed the crime of kidnapping in
the same act. Washington and in Idaho. Whether a state will try a defendant who has already been
Fact Double jeopardy only convicted in another state again depends on state law and the discretion of the pros-
prevents multiple punishments
for the same act by the same ecutor. The government that first obtains custody of the suspect is usually allowed to
sovereign, or government. If try him or her first.
someone does something that Note, however, that although successive prosecutions by separate sovereign-
is a both a federal crime and a
state crime, that person could
ties are constitutional, they may be prohibited by state law or internal agency policy.
be punished twice—by the Moreover, a prosecutor may not want to file the case, even if he or she can, because of
federal government and the the expense involved or if “justice has been served,” perhaps because the defendant
state government where the
has been sufficiently punished. In high-profile cases, however, prosecutors from other
act occurred.
jurisdictions may want to try the defendant regardless of the verdict and punishment
12 Chapter 1
Highlight ❯ Multiple Prosecutions, No Double Jeopardy
The concept of dual sovereignty is alive and be characterized as vertical or horizontal. Vertical
well in the United States. It will likely be used prosecutions take place when a crime is prosecuted in
more frequently in the immediate future in cases involving both federal and state courts. Horizontal prosecutions
international terrorism and high-profile domestic cases. happen when a crime is prosecuted in two states where
elements of the crime took place and when the act is
Dual sovereignty holds that the federal government
punished by the penal codes of those states. In either
and the states are separately sovereign and therefore
case, there is no double jeopardy, and therefore the
may prosecute offenders separately for crimes committed
prosecutions are constitutional.
within their jurisdictions. Multiple prosecutions may
in other jurisdictions. For example, although Terry Nichols was sentenced to life in
prison by the federal government in the Oklahoma City bombing case, Oklahoma tried
him again under state law so he could be given the death penalty. He did not get the
death penalty but was sentenced to life times 161 by the Oklahoma state court.
Jurisdiction versus Venue

The terms jurisdiction and venue can be confusing. Sometimes used interchangeably,
they nevertheless represent very different concepts. Jurisdiction refers to the power jurisdiction
of a court to try a case. A court’s jurisdiction is determined by the law that created the power of a court to try
a case.
the court and defined its powers. The parties to a litigation cannot vest the court with
jurisdiction it does not possess; only legislation can do that.
To render a valid judgment against a person, a court must also have jurisdiction
over that person. The fact that a defendant has been brought to court against his or
her wishes and by questionable methods does not invalidate the jurisdiction of the
court. In Frisbie v. Collins, 342 U.S. 519 (1952), the Supreme Court ruled that an invalid Frisbie v. Collins (1952)
arrest is not a defense against being convicted of the offense charged. In that case,
while living in Illinois, the accused was forcibly seized, blackjacked, handcuffed, and
then taken back to Michigan by law enforcement officers. The Court ruled that the
power of a court to try a person for a crime is not impaired by the fact that the person
has been brought within the court’s jurisdiction through forcible abduction. The Court
said, “It matters not how a defendant is brought before the court; what matters is that
the defendant is before the court and can therefore be tried.”
Another case involved former Panamanian dictator General Manuel Noriega. In
December 1989, the U.S. government sent troops to Panama, who arrested Noriega
and flew him to Florida to face narcotics trafficking charges. Noriega protested, claim-
ing that U.S. courts had no jurisdiction over him because the Panama invasion, which
led to his arrest, violated international law. The U.S. courts ruled, however, that the
method of arrest did not deprive the courts of jurisdiction. Noriega was tried in the
United States, convicted, and sentenced to 40 years in prison.3
The term venue is place-oriented. The general rule is that cases must be tried in the venue
place where the crime was committed. Legislation establishes mandatory venue for the place where a case is to
some types of cases and preferred venue for others. In criminal cases, the trial is usu- be tried.
ally held in the place where the crime was committed, but the venue may be changed
and the trial held in another place for causes specified by law. This change is made
to ensure the accused a fair and impartial trial in cases that have had such massive
pretrial publicity or strong community prejudice as to make it difficult to select an
impartial jury. The motion for a change of venue is usually filed by the defendant. The
decision of a trial judge to grant or deny the motion is seldom reversed on appeal.
Jurisdiction Venue
Power to try a case Place where a case is tried

Determined by law Determined by where the crime was committed
Cannot be changed, except Can be changed, usually due to massive pretrial
by law publicity
The Adversary System
The litigation process in United States courts is referred to as an “adversary” system because
it relies on the litigants to present their dispute before a neutral fact finder. According to
American legal tradition, inherited from the English common law, the clash of adversaries
before the court is thought most likely to allow the jury or judge to determine the truth and
resolve the dispute. In some other legal systems, judges or magistrates conduct investiga-
tions to find relevant evidence or obtain testimony from witnesses. In the United States,
however, the work of collecting evidence and preparing to present it to the court is accom-
plished by the litigants and their attorneys, normally without assistance from the court. The
essential role of the judge is to structure and regulate the development of issues by the
adversaries and to make sure that the law is followed and that fairness is achieved.
Source: The Federal Court System in the United States: An Introduction for Judges and Judicial Administrators in Other
Countries, 3rd ed, p. 22.
Sources of Rights
The rules governing criminal proceedings in the United States come from four basic
sources: (1) constitutions (federal and state), (2) statutes, (3) case law, and (4) court rules.
Constitutions
Both the federal and state constitutions are sources of rules that protect the rights of
individuals.
The Federal Constitution The U.S. Constitution is primarily concerned with establishing
the powers and limits of the federal government. The first three articles of the Constitution
set forth the powers and duties of the executive, Congress, and the Supreme Court. The
only individual rights mentioned in the original Constitution are the right to seek a
writ of habeas corpus (a document challenging the legality of a person’s detention), the
prohibition on bills of attainder (legislation imposing punishment without trial), and the
prohibition on ex post facto laws (legislation making prior conduct criminal).
When the Constitution was submitted to the states for ratification, several states
were reluctant to ratify it without a more specific enumeration of individual rights. In
Bill of Rights response to these concerns, the Bill of Rights was added. The Bill of Rights contains the
the first ten amendments to most important rights available to an accused in a criminal prosecution. The constitu-
the U.S. Constitution.
tional rights set forth in the Bill of Rights are the minimum rights of individuals facing
criminal prosecution. They can be expanded, and an accused can be given more rights
by state constitutions and by federal and state law. The constitutions of the various
14 Chapter 1
states also contain provisions designed to protect the rights of individuals in state crim-
inal proceedings. These rights are similar to those enumerated in the Bill of Rights, but
they apply only to a particular state. For example, most state constitutions guarantee
the right to counsel and cross-examination and prohibit self-incrimination.
Listed below are the rights guaranteed in the Bill of Rights and how they might be
violated in law enforcement.
◆◆ Amendment 1:
Freedom of religion
Freedom of speech
Freedom of the press
Freedom of assembly
Freedom to petition the government for redress of grievances
Police actions that might violate the First Amendment include: dispersal of
groups practicing religion in public places; limitations on the use of public places
by speakers to protest government policies; limiting access by the press to evidence
of crime or to ongoing police investigations; enforcing juvenile curfew ordinances;
and prohibiting public gatherings, parades, or meetings without a valid permit.
◆◆ Amendment 2:
The right to keep and bear arms. This has become more controversial in recent
years as local governments and states have passed rules limiting the availability
of weapons. Passage of these laws, which inevitably rely on the police for enforce-
ment, have led to legal challenges.
◆◆ Amendment 3:
This amendment provides that “no Soldier shall, in time of peace be quar-
tered In any house, without the consent of the Owner, nor In time of war, but in a
manner to be prescribed by law.” This is a relic of history and has no relevance to
current law enforcement.
◆◆ Amendment 4:
Freedom from unreasonable searches and seizures
This is the most important constitutional right in policing because it involves

detentions, stops, arrests, and searches of people, motor vehicles, and places.
Several chapters in this book address issues stemming from the constitutional pro-
hibition of unreasonable searches and seizures. Violations of this right can lead to
criminal or civil liability for the police.
◆◆ Amendment 5:
Right to a grand jury indictment for a capital or other serious crime

Protection against double jeopardy (being punished more than once for the same double jeopardy
offense) being punished more than
Protection against self-incrimination once for the same offense.
Prohibits the taking of life, liberty, or property without due process of law
Violation of the privilege not to incriminate oneself is the biggest issue for law
enforcement under the Fifth Amendment.
◆◆ Amendment 6:
Right to a speedy and public trial

Right to an impartial jury
Right to be informed of the nature and cause of the accusation
Right to confront witnesses
Right to summon witnesses
Right to the assistance of counsel
The constitutional rights guaranteed under the Sixth Amendment are primar-
ily limitations on what the courts can do during trial. Police issues, however, may
arise in connection with the right to counsel—as when the police question a sus-
pect without counsel or do not provide counsel during a police lineup.
◆◆ Amendment 7:
This amendment provides that “in Suits at common law, where the value
in controversy shall exceed twenty dollars, the right of trial by jury shall be pre-
served, and no fact tried by a jury, shall be otherwise re-examined in any Court of
the United States, than according to the rules of common law.” This does not apply
to law enforcement and is a largely irrelevant amendment.
◆◆ Amendment 8:
Protection against excessive bail

Protection against cruel and unusual punishment
The rights under the Eighth Amendment usually do not involve the police.
The prohibition against excessive bail involves the court, and the prohibition
against cruel and unusual punishment usually applies during sentencing and
when a defendant is in prison. The beating of suspects by the police and the use
of brutal methods to obtain confessions are punished under criminal law or sanc-
tioned as violations of the constitutional right to due process and equal protection
but not under the prohibition against cruel and unusual punishment.
◆◆ Amendment 9
This amendment states that “the enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage others retained by the people.”
This amendment is not relevant in law enforcement cases.
◆◆ Amendment 10:
This amendment says that “the powers not delegated to the United States
by the Constitution, not prohibited by it to the States, are reserved to the States
respectively, or to the people.” This has little relevance to law enforcement and is
not used in criminal cases.
The Bill of Rights refers to the first ten amendments to the U.S. Constitution. In addi-
tion to the Bill of Rights, however, Amendment 14 to the Constitution is also a source
of rights in criminal cases in both federal and state courts.
◆◆ Amendment 14:
Right to due process

Right to equal protection
16 Chapter 1
What does due process mean? It is difficult to come up with a definition that
applies alike to all law enforcement situations. This is because the meaning of due
process varies based on the circumstances of “people, time, and place.” In essence,
however, due process means fundamental fairness. This denotes that whenever
there is fundamental unfairness by the police, a potential claim to a violation of due
process by a member of the public arises. For example, an officer beats up a suspect
without justification or uses excessive force during arrest. This can be a violation of
due process because both are fundamentally unfair. There are instances, however,
when the use of force is justified. In these cases, allegations of a violation of the due
process clause of Fourteenth Amendment fail. It all depends on the circumstances.
Ultimately, whether a person’s due process right is violated or not is mainly deter-
mined by the jury or judge during trial and based on specific circumstances.
The right to equal protection requires that people be treated the same unless
there is justification for treating them differently. These justifications are defined
by legislation or court decisions, not by individual police officers or departments.
For example, applying different policing standards to neighborhoods inhabited by
different racial and ethnic groups can be a violation of the right to equal protec-
tion, as can treating suspects differently based on race or national origin. Racial
profiling can be a violation of equal protection right, as might different responses
by the police to complaints based on religion.
State Constitutions In addition to the federal Constitution, all fifty states have their
own constitutions. Many state constitutions have their own bills of rights and guaran-
tees of protection against deprivation of rights by state government. The provisions of
these constitutions must be consistent with the provisions of the federal Constitution
or they may be declared unconstitutional if challenged in court. The provisions of state
constitutions or state law sometimes give defendants more rights and protection than
provided under the federal Constitution. The general rule is that if a state constitution
or a state law gives a defendant less protection than the U.S. Constitution provides,
that limitation is unconstitutional and the U.S. Constitution prevails. But if provi-
sions of the state constitution or state law give a defendant more protection than the
U.S. Constitution provides, that grant of protection by the state prevails. For example,
assume that a state constitution, for some unlikely reason, requires a defendant to
testify even when the result is self-incrimination. This provision would be declared
unconstitutional because it contravenes the provisions of the Fifth Amendment.
By contrast, the U.S. Supreme Court has ruled that trustworthy statements obtained
in violation of the Miranda rule may be used to impeach (challenge) the credibility of a
defendant who takes the witness stand (Harris v. New York, 401 U.S. 222 [1971]). However, Harris v. New York (1971)
if a state’s constitution (as interpreted by state courts) or state law prohibits the use of
such statements to impeach the credibility of a witness, they cannot be used in that state.
Statutory Law
Statutory law is law passed by the Congress of the United States or by state legislatures. statutory law
Federal and state laws may cover the same rights mentioned in the U.S. Constitution law passed by legislatures.
but in more detail. For example, an accused’s right to counsel during trial is guaran-
teed by the U.S. Constitution, but it may also be given by federal or state law and is just
as binding in court proceedings. Moreover, the right to counsel given by law in a state
may exceed that guaranteed in the federal Constitution. The right to a lawyer during
probation revocation hearings, for instance, is not constitutionally required, but many
state laws give probationers this right. The right to a jury trial is not constitutionally
required in juvenile cases, but it may be given by state law.
State law often determines the procedures the police must follow and available
remedies if these procedures are breached. For example, state law may provide that
the police cannot stop motor vehicles unless they have probable cause (U.S. Supreme
Court decisions allow the stopping of motor vehicles based on reasonable suspicion, a
lower degree of certainty than probable cause). Or state law may bar police pursuits of
motor vehicles except in rural areas and only when the suspect is likely to have com-
mitted a serious crime and poses an imminent danger to the public. If this is the state
law, the police are bound by that limitation on their authority even though the U.S.
Supreme Court considers the prohibited practice constitutional.
Case Law versus Common Law

case law Case law is law created in cases decided by the courts, and explained in opinions writ-
law promulgated in cases ten by the judges explaining the decision. When deciding cases, the courts gradually
decided by the courts. develop legal principles that become law. This law is called unwritten or judge-made law,
as distinguished from laws passed by legislative bodies. Written laws often represent the
codification of case law that has become accepted and is practiced in a particular state.
Case law is sometimes confused with common law. The two are similar in that
neither kind of law is a product of legislative enactment but has evolved primarily
common law through judicial decisions. They differ in that common law originated from the ancient
law generally derived from and unwritten laws of England. Although later applied in the United States, common
ancient usages and customs law is generally derived from ancient usages and customs or from the judgments and
or from judgments and
decrees of the courts recognizing, affirming, and enforcing those usages and customs.
decrees of courts recogniz-
ing, affirming, and enforcing Although common law and case law both result from court decisions, common law
them. usually does not have value as precedent in state criminal prosecutions, except if speci-
fied by state law. By contrast, case law has value as precedent within the territorial
jurisdiction of the court that issued the opinion.
These differences may be summarized as discussed in the table:
Case Law Common Law

Sources are U.S. court decisions Sources are the ancient, unwritten laws of England
Court decisions may be recent or old Court decisions are ancient
Authoritative, but only within the territo- May or may not be authoritative in a certain jurisdic-
rial jurisdiction of that court tion, usually depending on provisions of state law
May evolve or change with a new decision Does not change
Court Rules
Various rules have developed as a result of the supervisory power of courts over the
administration of criminal justice. Federal courts have supervisory power over federal
criminal cases, and state courts have similar power over state criminal cases. The rules
promulgated by supervisory agencies (such as some states’ supreme courts) have the
force and effect of law and therefore must be followed. For example, the highest court
of Missouri may promulgate regulations that supplement the provisions of Missouri
18 Chapter 1
laws on pleading and procedure. They cover details that may not be included in a
state’s codes of criminal procedure.
The Judicial Review Doctrine

Courts in the United States exercise judicial review, which is defined as “the power of judicial review
any court to hold unconstitutional and hence unenforceable any law, any official action the power of courts
based on a law, or any other action by a public official that it deems to be in conflict to declare law or acts
unconstitutional.
with the Constitution.”4 The doctrine of judicial review is not expressly provided for
in the Constitution but was first enunciated by the Court in the case of Marbury v.
Madison, 5 U.S. 137 (1803), considered by legal scholars to be the most important case Marbury v.
ever decided by the Court. Madison (1803)
The facts of Marbury and the politics involved are complex, but they focused on the
issue whether the Congress of the United States could add to the original jurisdiction
given to the Court in Article III the Constitution. In a unanimous opinion written by
Chief Justice John Marshall, the Court held that “an act repugnant to the Constitution
is void,” adding, “It is emphatically the province and duty of the judicial department
to say what the law is. Those who apply the rule to particular cases, must of necessity
expound and interpret that rule. . . . A law repugnant to the Constitution is void; . . .
courts as well as other departments are bound by that instrument.”5
In sum, without the power being expressly provided for by the Constitution, the
Court held that courts in general could declare unconstitutional any act of Congress
or any act of any public official that is not in accordance with or contravenes the
Constitution.
The judicial review doctrine applies to the following: laws passed by Congress,
laws passed by state legislatures, ordinances passed by municipalities, and acts of
public officials. Thus it is clearly a significant and pervasive doctrine. It means that
laws passed by legislatures can and will be reviewed by the courts, if a proper case is
brought before it, and declared unenforceable if found to violate the Constitution. For
the executive department, it means that officials of the executive branch of govern-
ment, from the president of the United States to government clerks must act in accor-
dance with the Constitution, else what they do will be declared unconstitutional. For
law enforcement officers, it means that whatever they do can be challenged in court
and declared unconstitutional. If held to have violated constitutional rights, the act can
result in civil liabilities or the imposition of criminal sanctions.
The Rule of Law

The concept of the rule of law goes back to the days of ancient Greece and has different
meanings to different people.6 Since the tragic events of September 11, 2001, the con-
cept of the rule of law has generated more interest and has been the subject of debate
about its proper meaning. In the words of philosopher writer George Fletcher,
Of all the dreams that drive men and women into the streets, from Buenos Aires to
Budapest, the “rule of law” is the most puzzling. We have a pretty good idea what we
mean by “free market” and “democratic elections.” But legality and the “rule of law”
are ideals that present themselves as opaque even to legal philosophers.7
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77367_fep_02_and_03_ptg01_hires.indd 1 19/08/15 9:11 PM

77367_fep_02_and_03_ptg01_hires.indd 1 19/08/15 9:11 PM

Rolando V. del Carmen

Australia • Brazil • Mexico • Singapore • United Kingdom • United States

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Printed in the United States of America

This book is dedicated to my wife and colleague,

Rolando V. del Carmen is Distinguished Professor of Criminal

Craig Hemmens is Chair and Professor in the Department of

Chapter 1 The Court System, Sources of Rights, and Fundamental Principles 1

Chapter 2 Overview of the Criminal Justice Process 32

Chapter 3 Probable Cause and Reasonable Suspicion 66

Chapter 4 The Exclusionary Rule 88

Chapter 5 Stop and Frisk and Stationhouse Detention 117

Chapter 6 Arrests and Use of Force 148

Chapter 7 Searches and Seizures of Things 186

Chapter 8 Motor Vehicle Stops, Searches, and Inventories 226

Chapter 10 Lineups and Other Means of Pretrial Identification 289

Chapter 11 Confessions and Admissions: Miranda v. Arizona 326

Chapter 12 Basic Constitutional Rights of the Accused during Trial 368

Chapter 14 Legal Liabilities of Law Enforcement Officers 432

Chapter 15 Electronic Surveillance and the War on Terror 463

Things Subject to Search and Seizure 191

Organization AND CHANGES TO THE TENTH EDITION

xviii Preface to the Tenth Edition

Preface to the Tenth Edition xix

Cengage Learning Testing Powered by Cognero This assessment software is a flexible,

For the Student

Paul McElvein, Erie Community College

xx Preface to the Tenth Edition

Preface to the Tenth Edition xxi

A Text for a National Audience

Toward a Demystification of the Law

Rolando V. del Carmen

xxii Preface to the Tenth Edition

The Court System, Sources of Rights,

LEARNING OBJ ECTIVES Ke y T er m s judicial precedent

U.S. Supreme Court State supreme court

dual court system

Figure 1.2 The Federal Court System

United States United States

Appeals from U.S. U.S. U.S. U.S. U.S. Administrative

The Court System, Sources of Rights, and Fundamental Principles 3

Exhibit 1.1 • A Brief Overview of the Supreme Court

The Court System, Sources of Rights, and Fundamental Principles 5

Name Born Age Appt. by Senate First day/ Previous positions

The Court System, Sources of Rights, and Fundamental Principles 7

The Federal Courts and the Public

The State Court System

CIRCUIT COURT (41 circuits) A

PROBATE COURT (68 courts) MUNICIPAL COURT (258 courts)

No jury trials. No jury trials.

SUPERIOR COURT (58 countries) A

Jury trials except in appeals, domestic relations, and juvenile cases.

The Court System, Sources of Rights, and Fundamental Principles

Where Judicial Decisions Apply

Stare Decisis and Judicial Precedent

The Court System, Sources of Rights, and Fundamental Principles 11

Federal versus State Criminal Trials