Investigation- includes inquiry into crimes observed by or reported by the police.
Arrest- is the taking of a person into custody to charge with a crime.
– Most arrests are “on-view arrests.” A police officer sees someone committing a crime or believes a person has just done so and, therefore, has reasonable grounds for taking that person into custody.
– An officer must have observed a crime or reasonably believe that a crime was committed by this particular suspect.
– Alternatively, an officer may issue a “notice to appear.” This is typically used in connection with minor offenses, such as traffic violations.
– Also, a court, acting upon a sworn complaint of a citizen, a police officer, or a prosecutor, may issue a summons or warrant.
o A summons commands the accused to appear in court at a specified time.
o An arrest warrant commands a peace officer to arrest the accused.
– For person arrested on a criminal charge, the next step is generally “booking.”
Booking- is simply a clerical procedure involving entry on police records of the suspect’s name, offense, time of arrest, and, in some cases, photographing and fingerprinting.
Preliminary Hearing- is designed to determine whether there is sufficient evidence to justify a trial.
– During a preliminary hearing, the prosecution must produce sufficient evidence to convince the judge that there is probable cause to believe that the defendant is guilty of the crime charged.
– Defendant can waive the right to a preliminary hearing but this may not be wise because preliminary hearings can result in a case’s dismissal for lack of evidence and the hearing is often useful as a discovery tool, giving the defense the opportunity to preview at least some of the prosecution’s case and cross-examine its witnesses.
– Just because a defendant may have a charge dismissed at a preliminary hearing doesn’t mean the government can’t bring another charge again the defendant. There is not “double jeopardy” with preliminary hearings.
Information- is a written accusation signed by the prosecution that charges the defendant with a criminal offense.
Indictment- is also a document formally charging the defendant with a crime.
– Both documents lead to the same steps in the criminal justice system, but a grand jury, not a prosecutor, issues an indictment.
– If grand jury finds no probable cause, the grand jury issues a “no bill” and the case is dismissed.
– The difference between a grand jury proceeding and a preliminary hearing is that in a grand jury, the defendant cannot participate. Only the prosecution, a court reporter, and the grand jury participate.
Substance of the Course
– We will first focus on the 4th Amendment.
– Hypo: You are at the Tanger Outlet Mall and you walk by the Bose store and see an HD TV that is a steal at $6,000. You look at it and say it will be great with your Xbox but the $6,000 you were to pay for it is supposed to go to your tuition. You start to walk away with doubts but the TV is really tempting. The Bose store has closed and you take one last look, staring at the TV. You walk back to your car again and then go back to the Bose store again and an officer sees you walking back and forth from your car to the Bose store. He says this is classic behavior of someone who is planning to break into the store. The officer then asks you a few questions and you say “Fuck off copper.” He then says “OK, turn around and face the wall.” He also frisks you and feels something hard in your pocket. It is the hard case for your glasses. The Officer reaches in your pocket and finds a bottle full of pills and also the glasses case. You say it is an antibiotic for an infection that you have a prescription for. He opens the bottle and inspects the pills and says they look like Qualudes..
o Have your 4th Amendment rights have been violated?
The 4th Amendment- Due Process
– There are two Due Process clauses in the constitution
o Protection against unreasonable searches and seizures
§ No explicit standard for what is unreasonable
· It is the court’s analysis of what constitutes an unreasonable search and seizure.
· No probable cause mandate in this clause of the 4th Amendment.
§ 4th Amendment isn’t triggered unless there a search or seizure has taken place. The Amendment doesn’t apply if a search or seizure doesn’t occur.
· Threshold Question is always: Was there a search or a seizure?
§ If there is a search or a seizure, the next question becomes was it reasonable or unreasonable?
· If the search or seizure was reasonable then no violation of the 4th Amendment has occurred.
§ Doctrine of Fruit of the Poisonous Tree: Says where the government has acted unconstitutionally it cannot benefit from the consequences of such an unconstitutional act.
· The government is not able to benefit from any evidence obtained from an illegal or unconstitutional act.
o Otherwise, there would be no reason to stop the government from engaging in such illegal/unconstitutional conduct.
· The court will first see if the government action is illegal or unconstitutional.
o If no, we don’t worry about this doctrine.
o If yes, we must see if the government is benefitting from this improper action.
§ If it is benefitting from the conduct then the evidence will be suppressed.
o As seen in Hodari D, if evidence is taken prior to the seizure/search then there is no question of whether the evidence was the “fruit of the poisonous tree.”
§ Hodari says there must be either physical force on the part of the law enforcement officer or submission by the defendant to his/her authority.
§ Dissent says that if we take the view that the mere giving of authority is a seizure then we must look to the subjective view of the government’s actions.
o Some say to balance the states interest vs. the individual’s interest.
o Warrant Requirement- warrants shall not issue unless there is probable cause.
§ It also tells you what is needed for probable cause.
– “It’s not fair,” is Due Process.
– Has been deemed to be incorporated to apply to the states through the 14th Amendment.
o So when we are talking about the violation of the 4th Amendment in a particular state we are really talking about a violation of the 14th Amendment.
§ If it is a state, technically it is the 14th Amendment that is violated.
– 5th Amendment- no person shall be deprived of due process of the law
o Doesn’t apply to the states
o Applies to the federal government
– 14th Amendment- applies to the states and not the federal government.
o Result of this amendment is “What portions of the Bill of Rights apply to the states?
o Supreme Court has 3 different theories
§ First is the total incorporation theory- theory is the entire bill of rights is incorporated in the 14th Amend. due process clause
§ Second is the fundamental fairness theory- says there is no incorporation of the bill of rights to the states and due process is a fairness issue.
§ Third is selective incorporation- some elements of the Bill of Rights have been incorporated to the states; selected portions apply to the states
· Neo-incorporation says some elements of the Bill of Rights do apply to the states but when they do apply to the states they may apply to them in a different way than they apply to the federal government.
§ Neo-incorporation approach- takes the view that a particular provision of the Bill of Rights may be interpreted differently depending upon whether the action challenged is an action of the federal government versus one of a state governmental actor.
Delaware v. Prouse- it was clear there was a seizure but the officer had no reasonable articulable suspicion to pull him over other than the fact he was just bored and had nothing better to do.
– Since there was a seizure, the 4th Amendment is invoked and the seizure/search must be reasonable.
o We measure the government’s interests vs. the interest of the in
cy
· Factors: (1) gravity of public concern and concern and (2) degree to which the seizure benefits the public interest vs. (3) balance that with severity of the interference of individualized of liberty
o To stop someone just because the officer has just a hunch and not reasonable articulable suspicion is not enough
o In Hibel v. Nevada there was reasonable articulable suspicion so there was a lawful stop.
§ Distinction between Brown and Hibel is that in Hibel the stop was lawful.
· Question is then once you have a lawful stop can the officer demand the individual to identify themselves?
· Berkermer is distinguished here because it simply says the 4th Amendment doesn’t authorize the officer to demand the individual to identify themselves
· However, in Hibel, the cops authority to arrest and demand identification is not found within the 4th Amendment but related to the Nevada statute.
o As long as the demand is related to the stop then the asking of identification is lawful.
– Terry v Ohio- would a reasonable officer in McFadden’s place believe that the articulated reasons to stop were justified?
o Question: McFadden sees the suspect casing the store. When we are talking about a reasonable officer, do we take into account the reasonable officer with years of experience, a reasonable officer with experience of a rookie, or somewhere in between?
§ The way around it is that the officer is going to have to articulate the specific facts and the logic he utilized in coming to the conclusion that he should stop the individual.
· Now, given such facts and knowledge we can see if a reasonably prudent person with such knowledge would make such a stop and believe a reasonably articulable suspicion existed.
o If you believe the officer, then his experience is an articulable fact which gives rise to a reasonable suspicion that a crime is about to be committed.
§ Terry creates such a rule.
§ Note that we are talking about a lesser intrusion/detention than a full-blown arrest.
· Court says we are going to look at governmental interest v. individual interest in determining what is a reasonable stop.
· Court says when you balance these, reasonable suspicion is appropriate rather than probable cause because the intrusion is less.
o Because if the intrusion is less than an arrest than the standard is lower than probable cause.
§ Terry Stops involve a shorter duration of intrusion and thus a lower standard: reasonable articulable suspicion
o The second question is was the search permissible?
§ Governmental interest- safety for officers and public
§ Individual interest- to not be intruded on
§ Court says the individual intrusion isn’t overly great because all that is happening is a pat-down of the outer garments to ensure the officer’s safety
§ If the officer can reasonably believe that his or her safety is at stake, then the frisk is justifiable for safety purposes.
§ Harlan in his dissent says that the right to frisk must be immediate and automatic if the reason for the stop is an articulable suspicion of a crime of violence.
§ Doesn’t anything that is hard that can constitute a weapon be deemed a weapon for purposes of a pat-down search?
