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Introduction to Criminal Procedure Phase 1 Task 3 IP LaTonia R. Divens Colorado Technical University Portions Re-purposed from Phase 3 Task 1 IP CJUS367-1003A-04 Professor Richard Teresi July 23, 2010 CJUS375-11101B-04 Dr. Kishasha T. Williams-Ford February 18, 2011
. If an agent seizes evidence without proper procedure according to due process. 1963) (Divens. 2010). Search/Seizure/Search Warrant affects law enforcement in terms of protecting them. 2010). it will not be allowed as evidence in criminal trial. The exclusionary rule of the 4th Amendment is based on the 1963 case. (Wong Sun v.S. United States. You cannot be violated and no warrant can be issued against you without probable cause and if probable cause is given. In order for law enforcement agent(s) to be within the law in terms of searches and seizures. people and or items that will be seized (Hawkins-Lyke. citizen the right to be secure in his/her home. Supreme Court that any incriminating evidence seized has to be done according to the constitutions specifications with regard to due process. the department and the city from civil liabilities as well as it protects the citizens. what and where. Under the 4th Amendment. United States. It also protects them against unreasonable searches and seizures.Introduction to Criminal Introduction to Criminal Procedure 2 The 4th Amendment gives every U. their person. the person. This can also cause the entire case to be dismissed. This rule was mandated to control law enforcement agents. 2010).S. The 4th Amendment does prefer warrants that are issued by judges but it will also allow searches and seizures without them in the event that the law enforcement agents’ actions were reasonable (ctuonline. A law enforcement agent cannot legally invade a person’s privacy because they want to nor have a gut feeling a person is involved in criminal mischief. it will not be allowed as evidence in criminal trial. any warrant issued must be supported by Oath or affirmation as well as descriptive in the location to be searched.edu. papers and effects. This rule is defined as an understanding according to U. Weeks v. If any incriminating evidence is not seized accordingly. they must provide probable cause under Oath or affirmation with specific details in terms of whom.
Texas. Warden v. their evidence may . there is no exclusionary rule to prohibit him/her from introducing evidence against the suspect during the trial process. It was determined in each instance it would have been unreasonable judgment for the agent(s) not to conduct a search/ or seizure without having obtained a warrant. for instance the way they applied for the search warrant. All searches and seizures are not governed by the 4th Amendment. the 4th Amendment only applies in cases where the suspect has a reasonable expectation of privacy within the location being searched or among the property that is being seized (ctuonline. United States. 1967. 2010). his/her actions would be deemed unreasonable if and until it is proven the actions of the agent fit into one of the very few exceptions established by the U.S.S. Hayden. Supreme Court with regard to search warrant requirements. In general. the warrant would be considered reasonable (Aguilar v. 1934). if the 4th Amendment is not applicable to the situation in which the law enforcement agent is confronted with.. Later on they may find that a mistake was made. In the event a warrant is issued prior to actions of the law enforcement agent. 1971).S. If the agent acts prior to obtaining a warrant. This would be what is called the good-faith exception. Coolidge v. the Reasonableness Clause has given the U. The agent believes that he/she is performing their duty according to the law. 1967 (ctuonline. especially when the arrest could lead to incriminating statements or the seizure of physical evidence (Schmalleger. An example would be such case as Katz v. New Hampshire. which would provide legal authorization to conduct searches or effect arrests.Introduction to Criminal behavior as well as specific focus on their failure to obtain a warrant. 2005).edu. 2010). 3 Over the years.. Supreme Court 10 or more different categories indicative of searches and seizures that can be conducted without a warrant. As it stands to date. Supreme Court. A good-faith exception is another exception of the exclusionary rule where the agents conduct a search / or seizure without a warrant.edu. a number of exceptions have been specifically defined and narrowly limited by the U.
U. 2005). 1925. 1982. In this case.. It is also defined as the agents’ belief.Introduction to Criminal still be admissible in court (Schmalleger. 1968. As long as the agents reason for arresting said individual is valid. their good-faith process does not necessarily make an illegal search and seizure legal. Taylor v. United States. an immediate warrantless search of an arrestee is crucial. they must also be in accordance with the law in terms of having a justified reason to be in the location where the readily visible . Plain view is legally defined as any objects that are readily visible to the agent(s) and can be seized as evidence during a search by agents without a warrant specifying the seizure of the items. whereas probable cause is the reasonable belief that a particular individual(s) has facilitated a specific crime (Schmalleger. However. based on their consideration of facts at hand and reasonable conclusions drawn from the facts that would cause a reasonable person under the same circumstances to conclude some form of criminal activity will take place or has taken place. It is a general and reasonable belief that a crime is being facilitated or has been. Carroll v. he or she can justifiably conduct a simple pat-down search. the agents are justified in searching the individuals’ person as well as his/her immediate area. If an agent has reasonable suspicion. Therefore. Harris v. 4 The oldest exception to the search warrant rule is a search incident to arrest. The individual could have weapons or other objects/ or substances that could be used to harm the agent(s) or themselves. an individual who is arrested is searched in the efforts to ensure the safety of the agent(s) as well as the subject being arrested. 2005). Ohio. Reasonable suspicion is defined as a level of suspicion justifying an agent to make further inquiry or investigation. The plain-view doctrine is another case of warrantless search and seizures. In order for the agent(s) to seize these objects (legally). This allows an agent to stop an individual and question him/her or conduct a pat-down search.S. Alabama. Terry v. 1968.
It is not a requirement for agents to delay their course of investigations if it means gravely endangering their lives or the lives of others. the courts reexamined its position on the extent to which agents may proceed when legitimately stopping a vehicle and with probable cause to believe there is concealed contraband inside the vehicle. 1999) is defined as an agent who stops a vehicle and has a reasonable suspicion that the there is contraband inside the vehicle is justified in searching it without a warrant. It is not required for them to replace the contents or compartments they have removed from the vehicle. In 1992. . warrantless vehicle search cases are judge on a case by case basis due to the fact not all warrantless vehicle searches are within the law. 1978. An emergency search is defined as a warrantless search justified due to an immediate need such as public safety. 2005).Introduction to Criminal 5 items are seen as well as justifiable reason to believe that such items are associated with criminal activity (Schmalleger. The automobile is exception (Wyoming v Houghton. Arizona. boats and airplanes). the agent(s) is allowed to search the inside of the vehicle as well as the engine compartment and any other mechanical parts of it. Halsted & Bromley. 2005). removal or destruction of evidence. The courts allowed the agents to conduct probing searches of compartments and containers inside the vehicle that are not in plain view. In the case of an emergency search. When it is authorized for an agent to search the vehicle (car. 2004). whatever contraband they intend to seize could be hidden inside of or behind it. At any rate. Mincey v. These searches can be as thorough as that would be authorized in a search warrant in terms of the places that can be searched and the search must be based on probable cause (Territo. possible escape of a dangerous suspect or tampering. agents are also allowed to conduct warrantless searches. motor homes. mobile recreation vehicles. according to the 4th Amendment (Schmalleger.
Introduction to Criminal In a vehicle. In the event that a suspect(s) may be destroying or getting rid of evidence. Arkansas had a Supreme Court ruling that agents will generally be required to knock and announce themselves prior to entering a residence or other premises even though they have a search warrant. Halsted & Bromley.S. Tennessee ruled that interrogation of this nature was not acceptable. 2005). 6 The 1995 case of Wilson v. 2005). The Miranda warning is as follows: . Supreme Court ruled that agents who had probable cause to believe that a residence contained contraband or evidence of criminal activity could prevent a suspect (within in reason) who was on the outside of the residence from reentering the residence while they applied for a search warrant (Schmalleger. 2005). in pursuit of an escaped arrestee or if announcing themselves will jeopardize their lives. they are not required to announce themselves. office or personal property (Territo. the level of expectation of privacy is lowered in comparison to a home. A suspect must be read his/her Miranda rights before any questioning takes places. If there are certain emergency situations at hand exceptions can be made whereas the agents will not need to knock nor identify themselves prior to entry. futile or harness an effective investigation of the crime (Schmalleger. the case of Ashcraft v. In 2001. using pressuring styles short of physical abuse to initiate confessions or information. the case of Illinois v. In the 5th Amendment it guarantees against self-incrimination but any form of official coercion was excluded as well as pressuring during interrogation (Schmalleger. the Supreme Court made their position on the “no knock” exception clearer in light of the Richards v. Inherent coercion is defined as any tactics used by law enforcement agents who interview suspects and in doing so. In 1994. Two years later. Wisconsin case that same year. 2004). McArthur. the U. The court stated a “no knock” entry would be justified when reasonable suspicion exists that if knocking and announcing in certain situations are deemed dangerous.
Having these rights in mind. you still have the right to stop answering questions at any time (Schmalleger. .Do you now wish to answer questions without an attorney present? The answer to each of the previous questions must be yes in order to qualify as a valid waiver of rights (Schmalleger. one will be appointed to you.Do you understand each of these rights I have explained to you? 2. do you wish to answer questions? 3. If you decide to answer questions now without an attorney present.Introduction to Criminal You have the right to remain silent. not talking at all does not equate with waiving their rights. Once the suspect(s) have their rights read and explained to them. anything you say can and will be used against you in a court of law. 2005). The agent will ask the following questions: 1. the agent(s) must also ask 7 the suspect(s) whether or not they choose to waive those rights and the suspect(s) answers must be clearly expressed by answering or implying. 2005). You have the right to talk to and have an attorney present while you are being questioned and if you cannot afford one.
” (revolutionary-war-and-beyond. 2010). which requires those accused of a crime to be informed in full detail of the accusations against them. notified of the details of the crime that he or she is being accused of. the compulsory process clause. and to be informed of the nature and cause of the accusation. to be judged by an impartial jury. to have compulsory process for obtaining witnesses in his favor. There are a total of seven protections for those who have been accused of crimes within the 6th Amendment: the right to a speedy trial. the confrontation clause which guarantees the right for the accused to confront those who are accusing you. . the right to gather witnesses for their own defense as well as the right to have legal counsel. public trial.Introduction to Criminal 8 The 6th Amendment reads: “In all criminal prosecutions. the arraignment clause. the public trial clause which guarantees one be tried publicly if charged with a crime. which guarantees the accused to call their own witnesses and the court would serve subpoena’s to those whom refuse to testify willingly and the right to counsel clause which guarantees one to have legal counsel if accused of a crime (revolutionary-war-and-beyond.com. the accused shall enjoy the right to a speedy and public trial. by an impartial jury of the State and district wherein the crime shall have been committed. and to have the Assistance of Counsel for his defence. There are also clauses for each of the seven protections: The speedy trial clause. the right to trial by jury clause which guards one from being prosecuted by corrupt judges in terms of unfair sentencing practices if the trials were secretly held. to be confronted with the witnesses against him. which district shall have been previously ascertained by law. the right to confront any witnesses who are called to testify against the accused. which is one’s guarantee that they be tried efficiently if charged with a crime. 2010).com.
9 I absolutely agree that when the police take action. their ethnicity or the type of vehicle they are in. Whether the individual is aware of all of his or her rights or not. as well as former slaves or those who had been recently freed. Another example would be. The police cannot shoot an individual in the back (just because the suspect is running from them) they cannot shoot or physically beat an individual for not answering their questions or simply because they are mouthing off to them. liberty or property without due process of law as well as no jurisdiction can deny an individual within it equal protection of the law.Introduction to Criminal The 14th Amendment gave citizenship to all individuals who were born or had been naturalized in the U. they should be held accountable as the law deems. they would rightfully be able to stop and search an individual or group of individuals based solely on the kind of clothes they’re wearing. For example. It also states that no state could deny any individual life. If the police did not have to be just in their actions or else racial profiling for example would be okay to do. frisking. etc. when the individual retains counsel and finds . seizing.S. their reason and actions should be just as well as they should be aware of the rights of those they encounter and arrest and when these things are not done or done inappropriately. searching. The police must also know what rights they have as law enforcement and the rights an individual has in terms of their stopping. personal attitude towards them. If excessive force is used or claimed. the shoot would have to be justified. with that being the so called probable cause/justification. There has to be a reason for using force (to include weapons) as well there has to be a reason for the level of force used as it relates to the situation. an officer shooting a suspect or would be suspect. Being hit about the head with an asp is not required to place an already cuffed individual into the patrol vehicle for example. the officers must be able to give a legitimate reason for the level of force used and be able to prove it.
they should be held accountable per the law just as anyone else would be. In such case of Dow Chemical Co. Many times these suits are filed against one or more of the above in the efforts to reap the greatest monetary reward. to show that they are not above the law and hopefully bring police misconduct incidents to an extreme low. nor did they have the companies verbal or written permission or a warrant and it was not pertinent for them to do the aerial view due to an imminent threat. 227 1986. As discussed in our text.org. The courts have implemented certain protections to citizens against officers who violate their constitutional rights. as well as there are varying levels of culpability used in order to determine violations of constitutional rights. 2010).S. they could have very well been within the scope of the protections. v. based on what kind of conduct is alleged to have taken place (Worrall. If they simply flew over the area in question and were able to see said evidence without the use of an enhancement device. 1986).Introduction to Criminal 10 that any of his or her clients’ rights were violated. I think that the courts went too far simply because the EPA violated the defendants’ Fourth Amendment protections based on the equipment used in which to ascertain evidence (openjurist. this makes for case dismissals and lawsuits for both the officer(s) and the department. there are theories of liability used to assist in determining who is accountable and why they are accountable in Section 1983 suits. A person would be able to file a suit (Section 1983) against a law enforcement agent if they can prove the agent intentionally violated his or her civil rights. Individuals who file Section 1983 suits will typically file charges against a particular officer(s). the supervisor or the city or town the officer(s) work for. . United States 476 U. If it is found that any officer has intentionally violated someone’s rights.
2010). he places a protective covering over your top half. For example. That is totally unacceptable for one because if one knows the mere basics about computers you know that just because you delete something does not mean that it is totally gone and we are still unaware of just who the individuals are who are viewing our images. I totally understand and appreciate the fact that people want to be able to 11 travel and feel safe in doing so and if assuming that no one traveling on your flight has explosives or any kind of weapons will lessen your fear so be it.org. not medical professionals. The gentleman who due to health issues had to wear a colostomy bag was taken into a room to be . when you go to the dentist to have work done and if you are pregnant or think that you could be. What is done to protect the females who may be pregnant or think they could be and they have to go through this body scanner? What about those who may have already gone through chemo/ or radiation treatments for cancer? Those are just a few of my pet peeves with this topic. there should be some kind of exclusionary rule to apply and such searches should require prior approval by a judge or magistrate as well as the entity to be searched should be informed prior to said search. they are x-ray machines/radiation (epic. She informed them that she wears breast prosthesis and they made her take them off and show them. It is also definitely a total invasion of privacy and they claim that the images of the individuals who go through the machines are not saved therefore the images are safe. I am sure. The lady who had undergone a total mastectomy due to cancer and went through the body scanner and they saw what obviously appeared to be abnormal. Then there is the embarrassment and humiliation that is brought upon the citizens when they are trying to travel. A case where I feel the courts have gone too far would be that of the TSA and body scanning machines. The first problem that I have is the fact that these machines in my opinion are not safe for those operating them or those who are going through them. prior to the dentist taking x-rays of your mouth.Introduction to Criminal In such cases where formulas and trade secrets are at risk.
Why must we give up or civil liberties in order to be protected by the very country that we are citizens of? It is our right to peacefully protest. I will be targeted because of my religious/spiritual beliefs. Another avenue where the courts have gone too far is eliminating our rights in the so called efforts to better protect us (Messerli. I will be targeted because I have firearms in my home and legally allowed to carry concealed weapons for safety and protection. 2007).Introduction to Criminal 12 searched and he advised them that he was fine with the search however upon doing the pat down. even though I have no criminal or mental background and I do work in a field where I am armed. even though I am not trying to force them upon anyone else. please do not use pressure because I am wearing a colostomy bag and if smashed it will leak. because they do not want to go through the body scanner nor do they want to be pat down. it is our right to have free speech. If I choose to stand or speak against something that I personally do not believe in. This kind of behavior is an outrage and totally unacceptable. Basically. a so -called security measure. it is our right to bear arms. etc. proceeded with the pat down and did exactly what the gentleman told them not to do. they did not apologize and he had to board his flight soiled and humiliated. It is all said to be ways in which to counter-act terrorism. They told this man they didn’t care to hear about his medical issues. The . That is ridiculous to say the least. People whom have shown up to travel and have done so dressed in their underwear to avoid going through the humiliation of being groped and fondled or going through the scanner are being held accountable per the law. groped and fondled as though they were inmates in a prison. you can have this kind of protection in exchange for the right to think for yourselves. They smashed his colostomy bag and the contents spilled all over the man. None of this makes sense nor does it give me the sense of having freedom in this country. then I will be targeted as a terrorist even though I am not involved or attempting to incite illegal activity and or behavior.
many things that are found in the Bible. I totally want our country and its citizens to have their freedoms as well as I want us to be 13 safe from terrorism however I would never choose living in modern day concentration camps as a solution for protecting our citizens. but now these very things are being changed and deemed as unlawful or terroristic. .Introduction to Criminal Constitution was built on religion.
Introduction to Criminal References awesomelibrary. (2010/ April 2010). F. M. J.ctuonline. L. (2010.org. Course materials. May 19). (2010. July). B. L. R. Retrieved from http://epic. Whole body imaging technology and body scanners ("backscatter" xray and millimeter wave screening). Territo. January).org/civil_liberties. Sixth edition crime and justice in America: A human perspective.com/Assets/30000/28168.org. In Instructor files. United States. Retrieved from http://www. June 28).edu. Eighth edition criminal justice today: An introductory text for the 21st century. Upper Saddle River. . Should we sacrafice some of our civil liberties for the war on terror? Retrieved from http://balancedpolitics. Upper Saddle River.pdf epic.careeredonline. Halsted. Retrieved from http://www. 476 US 227 Dow Chemical Company v.org/privacy/airtravel/backscatter/ Hawkins-Lyke. (2010. (2007. Retrieved from http://coursebuildercontent.htm openjurist. (1986.org. Retrieved from http://openjurist. (2004). New Jersey: Pearson Prentice Hall. December 9).org/476/us/227/dow-chemical-company-v-united-states Schmalleger. New Jersey: Pearson Prentice Hall. Handgun control debate. & Bromley. Introduction to CJUS.edu Messerli.awesomelibrary. J..org/guncontrol. (2005).html 14 ctuonline..