2. Unit 5 Criminal Procedure PS-LCRP-9. Students will link constitutional limitations to proper prosecutorial procedure. a.Identify each stage of the criminal investigation leading to indictment. b.Appraise the constitutionality of police investigative actions. c.Demonstrate basic understanding of probable cause. d.Describe Supreme Court cases that impact the justice system. Essential Question: What legal issues are to be considered when investigating crime?

5. Authority of the Police Chapter Two Criminal Procedure Judy Hails

7. I. Detaining a Suspect for Questioning Fourth Amendment applies to detention of suspect whether or not there is an arrest Time, intrusion of freedom of locomotion, and other factors determine if “arrest” takes place Important – Miranda and others standards linked to arrest/detention issue Essential Question: What legal issues are to be considered when investigating crime? 6

8. A.Stop for questioning Terry v. Ohio (1968) detention of suspects without probable cause to arrest or consent of the suspect Must have reasonable suspicion that there is criminal activity afoot – Based on a reasonable officer standard – Need specific, articulable facts indicating criminal activity Essential Question: What legal issues are to be considered when investigating crime? 7

9. A.Stop for questioning (con’t) Request Identification – May request identification when there is reasonable suspicion of criminal activity – State must set specific standards for the types of identification that may be required

10. Summary: Constitutional Standard Detention Standard: Reasonable suspicion criminal activity is afoot – Must have specific facts. – Consider: all surrounding circumstances reasonable officer's experience Purpose: Question suspects to determine if they are involved in criminal activity Duration: Brief detention — depends on facts Outcome: Arrest if probable cause exists at end of detention – May arrest on outstanding warrants – If no probable cause suspect must be released – May retain notes for later investigations Essential Question: What legal issues are to be considered when investigating crime? 9

11. B.Pat down for weapons Terry v. Ohio (1968) allows a pat down for weapons only if there is reasonable suspicion that the suspect is armed – Not automatic – Search limited to pat down of outer clothing for weapons that could be used to harm the officer – If officer feels something believed to be a weapon, the officer may retrieve it Essential Question: What legal issues are to be considered when investigating crime?10

12. B.Pat down for weapons Plain View applies to all items discovered in this manner Plain Feel applies if officer is able to tell that item is contraband Essential Question: What legal issues are to be considered when investigating crime?11

13. Summary: Search Standard: Reasonable suspicion person detained is armed – Consider bulges in clothing that indicate concealed weapon – Consider type of crime under investigation Purpose: Prevent injury to officer Scope: Limited search for weapons – Pat down of outer clothing for weapons – May check items suspect is carrying if a weapon could be concealed in it – If officer feels something believed to be a weapon the officer may retrieve it Essential Question: What legal issues are to be considered when investigating crime?12

14. Summary: Search (con’t) Objects other than weapons may be seized only if : – Item felt like a weapon during patdown – Officer determined item was contraband by its distinctive feel before retrieving it – If suspect in a car at time of detention the passenger compartment of the car may be searched for weapons Outcomes: Item seized is admissible in court if officer in good faith believed: – item felt like a weapon – item felt like contraband Essential Question: What legal issues are to be considered when investigating crime? 13

15. C.Search of vehicles IF there is reasonable suspicion that there are weapons in a vehicle when the occupant has been stopped on reasonable suspicion – officer may search passenger compartment for weapons – Same rule applies to traffic stops where no custodial arrest is made Essential Question: What legal issues are to be considered when investigating crime? 14

16. D.Fingerprinting May fingerprint suspect in the field during a Terry stop May NOT take suspect to station for fingerprinting Essential Question: What legal issues are to be considered when investigating crime? 15

17. E.Interrogation May briefly question suspect in the field May NOT transport suspect to station for interrogation without probable cause Essential Question: What legal issues are to be considered when investigating crime? 16

18. II. Arrest Restrictions on the power to arrest come from both common law and the Fourth Amendment Essential Question: What legal issues are to be considered when investigating crime? 17

19. A.Probable cause to arrest Probable cause exists where the facts and circumstances would warrant a person of reasonable caution to believe that an offense was or is being committed Or the existence of circumstances which would lead a reasonably prudent man to believe in guilt of arrested party Essential Question: What legal issues are to be considered when investigating crime? 18

20. A.Probable cause to arrest Mere suspicion or belief, unsupported by facts or circumstances, is insufficient. PC justifying officer’s arrest without warrant has been defined as situation where officer has more evidence favoring suspicion that person is guilty of crime than evidence against such suspicion, but there is some room for doubt. Essential Question: What legal issues are to be considered when investigating crime? 19

21. Totality of the Circumstances Test May rely on own observations and facts obtained from others Consider motivation to lie, inherent probability of event occurring as described, etc. Essential Question: What legal issues are to be considered when investigating crime? 20

22. B.Felony arrest Peace officers are usually authorized to arrest if there is probable cause that a felony was committed and the person to be arrested committed it Essential Question: What legal issues are to be considered when investigating crime? 21

23. C. Misdemeanor Arrest Traditional rule gives peace officers the authority to arrest when there is probable cause that a misdemeanor was committed only if the crime occurred in the officer’s presence NOT IN GEORGIA Essential Question: What legal issues are to be considered when investigating crime? 22

24. D. Warrant Required by the 4 th Amendment Arrest warrant is required to enter the suspect’s home to arrest him/her Search warrant is required to enter a 3 rd person’s home to make an arrest “Knock notice” procedures must be followed when entering a dwelling Essential Question: What legal issues are to be considered when investigating crime? 23

25. “Knock notice” procedures: Knock or otherwise draw attention to his/her presence Announce purpose of the visit Wait long enough for a cooperative person to respond Enter — may use force if necessary Essential Question: What legal issues are to be considered when investigating crime? 24

26. E. Search Incident to Arrest When a custodial arrest is made the officer may conduct a thorough search of: – the person arrested and – the area under his/her immediate control (“arms reach” or “wingspan” rule) – Chimel v California Must be done immediately (“contemporaneous”) after the arrest Essential Question: What legal issues are to be considered when investigating crime? 25

27. E. Search Incident to Arrest Items seized do not have to be related to the crime the person was arrested for committing When person arrested was in car at time of arrest – May thoroughly search the entire passenger compartment Essential Question: What legal issues are to be considered when investigating crime? 26

28. E. Search Incident to Arrest “Protective Sweep” may be conducted – Includes area immediately surrounding the location where the arrest was made – Quick search for people who may be hiding; only look where a person could be concealed – Need reasonable suspicion to extend search to more distant locations Essential Question: What legal issues are to be considered when investigating crime? 27

29. F. Booking Booking occurs when a person enters the jail or holding facility – At time of arrest – Each time person arrives to serve “week-ends” or other intermittent sentence – When returning to jail after work furlough or other leave Essential Question: What legal issues are to be considered when investigating crime? 28

30. F. Booking Thorough search of person is permitted including strip search, body cavity search – Thorough search of any items (including closed containers) in the possession of person being booked is permitted – Miranda does not apply to brief questioning regarding names, person to notify in emergency, etc. Extended questions requires Miranda warnings Essential Question: What legal issues are to be considered when investigating crime? 29

31. Arrest Summary All arrests must be based on probable cause – Probable cause is defined as sufficient facts to convince a reasonable person that it is more likely than not that a crime was committed and the suspect committed it Arrest warrants are required only if : – Officers enter suspect's home without consent to make the arrest in non-emergency situations – Search warrant is required if officers wish to enter another person's home without consent to arrest the suspect – State law may require arrest warrant in situations not mandated by Fourth Amendment Essential Question: What legal issues are to be considered when investigating crime? 30

32. Arrest Summary Search incident to legal custodial arrest Person arrested and area under his/her immediate control – Search must be done at time and place of arrest – Thorough search permitted Officer does not have to believe the person is armed or has evidence in his/her possession Items found are admissible even if they do not relate to the crime that the person was arrested for committing – If person was in car at time of arrest the entire passenger compartment may be thoroughly searched Essential Question: What legal issues are to be considered when investigating crime? 31

33. Arrest Summary Booking Searches - Anytime a person is booked into the jail facility Search of Person - Thorough search of person — including: – Strip search and body cavity search – May be limited on misdemeanors Search of Property – Thorough search of anything in the person’s possession – May search closed containers Essential Question: What legal issues are to be considered when investigating crime? 32

34. The Warrant Process Chapter Three

35. Arrest Warrants: Warrant Clause No Warrant shall be issued:  but upon probable cause  supported by Oath or affirmation and particularly describing:  the place to be searched,  and the person or things to be seized Essential Question: What legal issues are to be considered when investigating crime? 34

36. Essential Question: What legal issues are to be considered when investigating crime? 35

37. Arrest Warrant Starts with Affidavit - swearing of facts Affidavit must provide: – Facts to establish probable cause that a specific crime was committed – Extensive information, include everything Essential Question: What legal issues are to be considered when investigating crime? 36

38. Arrest Warrant Arrest warrant must specify: Crime(s) charged Identity of person to be arrested – Name and aliases “John Doe” warrant can be issued if true name is not known – Description of person - give as much detail as available so that officers making arrest can verify that they have the right person: Age, DOB,Height, weight, etc. Essential Question: What legal issues are to be considered when investigating crime? 37

39. Arrest Warrant Name of court and judge that issue warrant Date warrant was issued In Georgia, if theft, the warrant must also give a name, description, and value of the item(s) stolen and the owner See 17-4-40 Essential Question: What legal issues are to be considered when investigating crime? 38

40. Search Warrants Affidavit must contain: Facts to establish probable cause that there are items of evidence that can be seized with a warrant – "Totality of the circumstances" test used to determine if probable cause has been established – Information that is stale may not be used Essential Question: What legal issues are to be considered when investigating crime? 39

41. Search Warrants Affidavit must contain: Facts to establish the location of the items to be seized – Identify the building to be searched 123 North Main Street – Describe the portion of the building where the evidence is believed to be located in the garage Essential Question: What legal issues are to be considered when investigating crime? 40

42. Search Warrants Warrants must contain: Location that may be searched Items that officers may search for Date warrant was signed Name of signature of judge who approved the warrant See 17-5-21&22 for Georgia requirements Essential Question: What legal issues are to be considered when investigating crime? 41

43. Electronic Surveillance Warrants Title III and most state laws restrict use of electronic surveillance warrants to investigations of major felonies Show normal investigative techniques have been unsuccessful or reason why these techniques will not work Must make efforts to minimize intrusion into privacy of persons not involved in criminal activity whose conversations are intercepted Transcripts of all seized conversations must be filed with the court Considered MAJOR privacy invasion Essential Question: What legal issues are to be considered when investigating crime? 42

44. Bench Warrant issued by judge after conviction used when person does not appear in court Essential Question: What legal issues are to be considered when investigating crime? 43

45. Drafting Affidavits Affidavit must contain facts Judge decides if PC exists Supreme Court currently uses the Illinois v. Gates (1983) totality of the circumstances test when evaluating whether the affidavit establishes PC No longer necessary to establish that each piece of information came from a person known to be reliable Essential Question: What legal issues are to be considered when investigating crime? 44

46. Drafting Affidavits Police should corroborate as many facts as possible when dealing with informant whose reliability has not been established Types of information that may be included: – Officer's first-hand observations – Information from other officers – Facts learned from informants Essential Question: What legal issues are to be considered when investigating crime? 45

47. Drafting Affidavits Facts learned from informants – Crime victims and people who witnessed crime Assumed to be credible unless facts indicate a motive to distort facts Common problem is that they do not provide sufficient details to identify perpetrator Essential Question: What legal issues are to be considered when investigating crime? 46

48. Drafting Affidavits Facts learned from informants – Confidential informants Officer knows identity of informant but has promised that identity will not be revealed – Anonymous informants Unknown person provides information without disclosing identity Stale information (facts that are too old to be reliable) cannot be used in an affidavit for a search warrant Essential Question: What legal issues are to be considered when investigating crime? 47

49. Obtaining Warrant from Judge Prepare all necessary affidavits Complete required forms Present affidavits and forms to judge – Must be a neutral magistrate Local court rules may require that application be presented to specific judge If a judge rejects application it may not be given to another judge unless affidavits have been prepared with additional facts Search warrant must be issued by judge in the geographical jurisdiction where search will occur Essential Question: What legal issues are to be considered when investigating crime? 48

50. Executing Warrants Must take at least one copy of warrant to location where it will be executed – Person whose premises is searched is entitled to a copy of the warrant – If no one is present at the time, a copy should be left at the premises Knock Notice applies when entering residential units Knock Notice exceptions (Exigent) – Emergencies – Evidence destruction Essential Question: What legal issues are to be considered when investigating crime? 49

51. Executing Warrants May look only in locations that could conceal items the warrant authorizes the officers to seize – “Elephant in a drawer” May seize items not listed on warrant if they are found in plain view and there is PC to seize them No authority to pick up an item and examine it to see if there is PC to seize it Essential Question: What legal issues are to be considered when investigating crime? 50

52. Executing Warrants “Returning” Inventory of items seized during execution of search warrant is written on the warrant's "Return" Return is filed with the court A copy of the return must be given to the person whose premises was search or, if no one is present, left at the location Essential Question: What legal issues are to be considered when investigating crime? 51

53. Arrest Warrants Officers may make an arrest based on information in abstract of warrant Good faith effort must be made to verify that person arrested is same one named in the warrant Actual warrant must be produced at first court appearance Essential Question: What legal issues are to be considered when investigating crime? 52

54. Chapter Four Other Search & Seizure Issues

55. Entering to Conduct an Investigation No special right to enter premises in order to investigate a crime – Entry to rescue people is permitted No special right to enter premises in order to investigate a crime – Entry to rescue people is permitted Essential Question: What legal issues are to be considered when investigating crime? 54

56. Entering to Conduct an Investigation “ Knock-Notice” applies to entry of residences absent consent or emergency 1.Knock, ring doorbell or otherwise make presence known 2.State who is there and purpose (“Police! We have a warrant.”) 3.Wait long enough for a cooperative person to open the door 4.Enter - force may be used if necessary to gain entry “ Knock-Notice” applies to entry of residences absent consent or emergency 1.Knock, ring doorbell or otherwise make presence known 2.State who is there and purpose (“Police! We have a warrant.”) 3.Wait long enough for a cooperative person to open the door 4.Enter - force may be used if necessary to gain entry Essential Question: What legal issues are to be considered when investigating crime? 55

57. Entering to Conduct an Investigation Wilson v Arkansas allows for exceptions to “knock-notice” for – Danger to officer – Destruction of evidence – Escape of suspect – Rescue people in danger Wilson v Arkansas allows for exceptions to “knock-notice” for – Danger to officer – Destruction of evidence – Escape of suspect – Rescue people in danger Essential Question: What legal issues are to be considered when investigating crime? 56

58. Entering to Conduct an Investigation Warrant is required to enter dwelling Arrest warrant is needed to enter suspect’s home to arrest him/her Search warrant is required to enter anyone else’s home to arrest the suspect Search warrant is required to enter for other purposes UNLESS there is a recognized exception to the warrant requirement that applies Warrant is required to enter dwelling Arrest warrant is needed to enter suspect’s home to arrest him/her Search warrant is required to enter anyone else’s home to arrest the suspect Search warrant is required to enter for other purposes UNLESS there is a recognized exception to the warrant requirement that applies Essential Question: What legal issues are to be considered when investigating crime? 57

59. Plain View Doctrine Plain view doctrine has three key elements: Essential Question: What legal issues are to be considered when investigating crime? 58

60. Plain View Doctrine 1.According to Arizona v Hicks objects must be where officers can observe them. – Officer can walk around, bend or use flashlight to make a better observation – Cannot pick items up to look for serial numbers, etc. – Finding items does not have to come as a surprise to the officers 1.According to Arizona v Hicks objects must be where officers can observe them. – Officer can walk around, bend or use flashlight to make a better observation – Cannot pick items up to look for serial numbers, etc. – Finding items does not have to come as a surprise to the officers Essential Question: What legal issues are to be considered when investigating crime? 59

61. Plain View Doctrine 2.Officers must be legally at the location where the observation was made. – Must have complied with “knock- notice” – May be at location to execute search warrant or for any other legal reason 2.Officers must be legally at the location where the observation was made. – Must have complied with “knock- notice” – May be at location to execute search warrant or for any other legal reason Essential Question: What legal issues are to be considered when investigating crime? 60

62. Plain View Doctrine 3.Probable cause is required to seize what was observed. – All facts known about item — both before discovery and as a result of finding it — can be used to establish probable cause – If probable cause not established, facts may be retained and used later 3.Probable cause is required to seize what was observed. – All facts known about item — both before discovery and as a result of finding it — can be used to establish probable cause – If probable cause not established, facts may be retained and used later Essential Question: What legal issues are to be considered when investigating crime? 61

63. Abandoned Property No Fourth Amendment Issues Relate to Seizure of Abandoned Property – No one has a privacy interest — because no one possesses it No Fourth Amendment Issues Relate to Seizure of Abandoned Property – No one has a privacy interest — because no one possesses it Essential Question: What legal issues are to be considered when investigating crime? 62

64. Consent Three key points must be considered to determine if valid consent has been obtained for a search: Essential Question: What legal issues are to be considered when investigating crime? 63

65. Consent 1. Consent must be given voluntarily based on the totality of the circumstances – Do NOT have to advise person of the right to refuse to consent to a search Schneckloth v. Bustamonte – Simulating a search warrant invalidates consent — person seen as merely acquiescing to authority – Use of force or intimidation will invalidate consent — considered on a case-by-case analysis 1. Consent must be given voluntarily based on the totality of the circumstances – Do NOT have to advise person of the right to refuse to consent to a search Schneckloth v. Bustamonte – Simulating a search warrant invalidates consent — person seen as merely acquiescing to authority – Use of force or intimidation will invalidate consent — considered on a case-by-case analysis Essential Question: What legal issues are to be considered when investigating crime? 64

66. Consent 2. Consent to search is based on a person with apparent authority – If person appears to have authority over the area, officers are not responsible for reasonable mistakes related to whether actual authority exists – Privacy interest — not ownership — is required 2. Consent to search is based on a person with apparent authority – If person appears to have authority over the area, officers are not responsible for reasonable mistakes related to whether actual authority exists – Privacy interest — not ownership — is required Essential Question: What legal issues are to be considered when investigating crime? 65

67. Consent 3. What can be searched based on the consent – Person giving consent controls what can be searched and how long the search may continue – Consent can be withdrawn at any time without justification 3. What can be searched based on the consent – Person giving consent controls what can be searched and how long the search may continue – Consent can be withdrawn at any time without justification Essential Question: What legal issues are to be considered when investigating crime? 66

68. Vehicle Searches Vehicle Stopped Based on Reasonable Suspicion – If there is reasonable suspicion that there are weapons in the car, officers may search the passenger compartment for weapons Vehicle Stopped Based on Reasonable Suspicion – If there is reasonable suspicion that there are weapons in the car, officers may search the passenger compartment for weapons Essential Question: What legal issues are to be considered when investigating crime? 67

69. Vehicle Searches Person in Vehicle Is Arrested – May conduct thorough search of passenger compartment Must be done contemporaneously with arrest – Arizona v Gant Person in Vehicle Is Arrested – May conduct thorough search of passenger compartment Must be done contemporaneously with arrest – Arizona v Gant Essential Question: What legal issues are to be considered when investigating crime? 68

70. Vehicle Searches Probable Cause Search of Vehicle Carroll V U.S. established “Motor Vehicle Exception” – May search car as thoroughly as if judge had issued a search warrant Restricted to portion of car that probable cause indicates contains evidence – Does not need to be done at the time the vehicle is stopped — may tow car to impound lot and search it later – Do not need to show an emergency prevented officers from obtaining a search warrant Probable Cause Search of Vehicle Carroll V U.S. established “Motor Vehicle Exception” – May search car as thoroughly as if judge had issued a search warrant Restricted to portion of car that probable cause indicates contains evidence – Does not need to be done at the time the vehicle is stopped — may tow car to impound lot and search it later – Do not need to show an emergency prevented officers from obtaining a search warrant Essential Question: What legal issues are to be considered when investigating crime? 69

71. Vehicle Searches Inventory of Impounded Vehicle – Anytime a vehicle is impounded, someone may inventory the vehicle and look for items subject to theft Inventory of Impounded Vehicle – Anytime a vehicle is impounded, someone may inventory the vehicle and look for items subject to theft Essential Question: What legal issues are to be considered when investigating crime? 70

72. Vehicle Searches Search of Outside of Vehicle – Plain View Doctrine applies must be legally at the location Search of Outside of Vehicle – Plain View Doctrine applies must be legally at the location Essential Question: What legal issues are to be considered when investigating crime? 71

73. Vehicle Searches Closed Containers Found in Vehicles – According to US v Ross, may be opened if found during: 1.Search incident to arrest 2.Inventory 3.Probable cause search Closed Containers Found in Vehicles – According to US v Ross, may be opened if found during: 1.Search incident to arrest 2.Inventory 3.Probable cause search Essential Question: What legal issues are to be considered when investigating crime? 72

74. Blood, Breath and Urine Tests No Fifth Amendment privilege to refuse to give samples of body fluids Essential Question: What legal issues are to be considered when investigating crime? 73

75. Blood, Breath and Urine Tests Fourth Amendment issues: Detention to obtain sample – Suspect can be detained in the field based on reasonable suspicion – Probable cause is required to transport the suspect to police station or hospital to obtain sample No warrant is required if normal body functions would destroy evidence during the time required to obtain a search warrant Fourth Amendment issues: Detention to obtain sample – Suspect can be detained in the field based on reasonable suspicion – Probable cause is required to transport the suspect to police station or hospital to obtain sample No warrant is required if normal body functions would destroy evidence during the time required to obtain a search warrant Essential Question: What legal issues are to be considered when investigating crime? 74

76. Blood, Breath and Urine Tests Detention to obtain sample (con’t.) – Only reasonable force may be used to obtain the samples Surgical procedures require court order or search warrant Detention to obtain sample (con’t.) – Only reasonable force may be used to obtain the samples Surgical procedures require court order or search warrant Essential Question: What legal issues are to be considered when investigating crime? 75

77. Blood, Breath and Urine Tests Due Process Issues : Cannot use methods that “shock the conscience” in order to obtain the sample Due Process Issues : Cannot use methods that “shock the conscience” in order to obtain the sample Essential Question: What legal issues are to be considered when investigating crime? 76

78. Misplaced Reliance Doctrine Allows use of conversation when person who was a party to it tells police about what was said Allows placing informant or undercover officer in situation to hear what is said and report back to the police Allows use of conversation when person who was a party to it tells police about what was said Allows placing informant or undercover officer in situation to hear what is said and report back to the police Essential Question: What legal issues are to be considered when investigating crime? 77

79. Misplaced Reliance Doctrine May carry tape recorder or transmitting device to save conversations for use during investigation and trial – Key: Person knew someone heard the conversation and could report it to authorities May carry tape recorder or transmitting device to save conversations for use during investigation and trial – Key: Person knew someone heard the conversation and could report it to authorities Essential Question: What legal issues are to be considered when investigating crime? 78

80. Electronic Surveillance Warrant Required to use wiretaps or listening devices if no one who is a party to the conversation consented to the interception Detailed procedures apply to obtaining this type of search warrant Required to use wiretaps or listening devices if no one who is a party to the conversation consented to the interception Detailed procedures apply to obtaining this type of search warrant Essential Question: What legal issues are to be considered when investigating crime? 79

81. Closed Containers Closed Container Rule: Officers may seize closed containers based on probable cause A search warrant is required to open the closed container Closed Container Rule: Officers may seize closed containers based on probable cause A search warrant is required to open the closed container Essential Question: What legal issues are to be considered when investigating crime? 80

82. Closed Containers Exceptions to Closed Container Rule : Searching of vehicles – Incident to arrest – Probable cause search – Inventory of impounded vehicle Booking searches Exceptions to Closed Container Rule : Searching of vehicles – Incident to arrest – Probable cause search – Inventory of impounded vehicle Booking searches Essential Question: What legal issues are to be considered when investigating crime? 81

83. Closed Containers Re-opening Closed Containers When private party who has legal possession of a closed container opens it, the owner loses any privacy interest in the contents – Police may re-open package if it was closed or re-sealed prior to delivering it to the police Re-opening Closed Containers When private party who has legal possession of a closed container opens it, the owner loses any privacy interest in the contents – Police may re-open package if it was closed or re-sealed prior to delivering it to the police Essential Question: What legal issues are to be considered when investigating crime? 82

84. Closed Containers Re-opening Closed Containers Police may re-seal container and conduct a “controlled delivery” – Owner may regain privacy interest if package is out of sight of officers for a considerable length of time Re-opening Closed Containers Police may re-seal container and conduct a “controlled delivery” – Owner may regain privacy interest if package is out of sight of officers for a considerable length of time Essential Question: What legal issues are to be considered when investigating crime? 83

85. Chapter Five Interrogation & Identification Procedures

86. Self Incrimination: Fifth Amendment Limited to Testimonial Communications that Could Result in Conviction Essential Question: What legal issues are to be considered when investigating crime? 85

87. Does NOT apply to: Body fluids — blood tests, breath tests, urine tests Tissue samples for DNA testing Identification procedures — photographs, line-ups, show-ups Handwriting and voice exemplars Movements — sobriety test, posing as directed, wearing clothing found at crime scene Essential Question: What legal issues are to be considered when investigating crime? 86

88. Can NOT be used: Shield another person Protect against civil liability Essential Question: What legal issues are to be considered when investigating crime? 87

89. Suspect must be informed of the right to remain silent prior to custodial interrogation Essential Question: What legal issues are to be considered when investigating crime? 88

90. Custodial means the person is not free to leave Essential Question: What legal issues are to be considered when investigating crime? 89

91. Warnings are NOT required: Temporary detention Traffic citation issued without taking the violator into custody Essential Question: What legal issues are to be considered when investigating crime? 90

92. Interrogation includes both direct and indirect questioning Essential Question: What legal issues are to be considered when investigating crime? 91

93. Miranda warnings must be given prior to custodial interrogation: Essential Question: What legal issues are to be considered when investigating crime? 92

94. Waiver of Miranda warnings must be knowing, intelligent and voluntary: Knowing — suspect has been advised of the Miranda rights Intelligent — suspect has sufficient intelligence to understand the Miranda warnings Voluntary — no coercion can be used to obtain the waiver Essential Question: What legal issues are to be considered when investigating crime? 93

95. Subsequent Interrogations If prior interrogation session violated Miranda rights: – Statements from improperly conducted session are inadmissible Essential Question: What legal issues are to be considered when investigating crime? 94

96. Subsequent Interrogations Statements obtained at later session may be admissible – Must have proper Miranda warnings and waiver Fruit of Poison Tree analysis — case by case determination if prior error taints later interrogation sessions Essential Question: What legal issues are to be considered when investigating crime? 95

97. Subsequent Interrogations If prior interrogation session was conducted properly (including valid Miranda waiver) and it ended without suspect invoking Miranda right to remain silent or to have an attorney present: Essential Question: What legal issues are to be considered when investigating crime? 96

98. Subsequent Interrogations May resume interrogation at any time Suspect retains right to invoke Miranda at any time New Miranda warnings required only if suspect may have forgotten his/her rights Essential Question: What legal issues are to be considered when investigating crime? 97

99. Subsequent Interrogations If prior interrogation session ended because suspect invoked Miranda right to remain silent – Wait sufficient time to indicate rights will be scrupulously guarded – New set of warnings and a waiver are required Essential Question: What legal issues are to be considered when investigating crime? 98

100. Subsequent Interrogations If prior interrogation session ended because the suspect invoked Miranda right to have an attorney present : – Must have attorney present at subsequent interrogation – If officer initiates the interrogation, waiver valid only if attorney present when waiver is made Essential Question: What legal issues are to be considered when investigating crime? 99

101. Subsequent Interrogations If prior interrogation session ended because the suspect invoked Miranda right to have an attorney present : – If suspect requested to talk to the police — waiver of Miranda rights would be required BUT the waiver could be obtained without an attorney present Essential Question: What legal issues are to be considered when investigating crime?100

102. Identification Procedures Line-up Several people are shown to eyewitness Show-up One person is shown to eyewitness Photographic line-up Pictures are shown to eyewitness Essential Question: What legal issues are to be considered when investigating crime?101

103. Identification Procedures Fourth Amendment Rights – Need reasonable suspicion in order to detain a suspect in the field to be identified – Need probable cause to transport suspect to station (or other location) for identification or questioning Essential Question: What legal issues are to be considered when investigating crime?102

104. Identification Procedures Fifth Amendment – Suspect can NOT claim Fifth Amendment as a reason to refuse to participate in identification procedures Sixth Amendment – Suspect has the right to have an attorney present during show-ups and line-ups held after arraignment or indictment on the charges Essential Question: What legal issues are to be considered when investigating crime?103

105. Identification Procedures Fifth Amendment – No right to have an attorney present during photographic line-up at any time Essential Question: What legal issues are to be considered when investigating crime?104

106. Identification Procedures Due Process: – Line-ups and photographic line-ups must not be unduly suggestive – Need sufficient selection — 5 to 7 people recommended – People displayed need to look similar — should not have any features that make one person stand out Essential Question: What legal issues are to be considered when investigating crime?105

107. Identification Procedures Due Process: – Anything that one person in the line-up is asked to do should be done by every person in the line-up – Witnesses must make selection without coaching by police or others Essential Question: What legal issues are to be considered when investigating crime?106

108. Identification Procedures Show-ups are judged on the credibility of the eye witness. Essential Question: What legal issues are to be considered when investigating crime?107

109. Identification Procedures Consider: – opportunity to observe suspect during crime – degree of attention witness paid to suspect at crime scene – level of certainty of witness when making identification Essential Question: What legal issues are to be considered when investigating crime?108

110. Right to Counsel Sixth Amendment Right to Counsel — Basic Rules – Government required to provide attorneys for defendants who cannot afford to hire an attorney – Applies from arraignment through sentencing and first direct appeal Essential Question: What legal issues are to be considered when investigating crime?109

111. Right to Counsel Sixth Amendment Right to Counsel — Basic Rules – Indigent defendant cannot be sentenced to jail unless he/she was given an attorney – Defendant has the right to refuse an attorney at represent self Essential Question: What legal issues are to be considered when investigating crime?110

112. Right to Counsel Sixth Amendment Issues When Interrogating Suspect – Right to counsel attaches at the arraignment or indictment – After this point, police may interview suspect only if suspect has attorney present or has waived the right to counsel Essential Question: What legal issues are to be considered when investigating crime?111

113. Right to Counsel This rule applies to both police and police informants Applies to both in-custody and out-of- custody interrogation Only applies to charges on which suspect has been arraigned or indicted Essential Question: What legal issues are to be considered when investigating crime?112

114. Right to Counsel Applies to conversations with the defendant in courthouse Applies to interview of defendant by prosecution experts such as psychiatrists and polygraph operators Essential Question: What legal issues are to be considered when investigating crime?113

115. Unit 5 Criminal Procedure PS-LCRP-9. Students will link constitutional limitations to proper prosecutorial procedure. a.Identify each stage of the criminal investigation leading to indictment. b.Appraise the constitutionality of police investigative actions. c.Demonstrate basic understanding of probable cause. d.Describe Supreme Court cases that impact the justice system. Essential Question: What legal issues are to be considered when investigating crime?