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Answer each question with a minimum of 300 words. Must use provided material (PDF book) along with additional sources to support your answer. Please use in-text citations at the beginning of each new paragraph to support your facts. Reference/cite in APA format: Hall, D. (2015). Criminal law and procedure (7th ed.). Stamford, CT: Cengage Learning. 1.) The rules for search and seizure can be complicated and changing. Should we expect law enforcement to be fully aware of these laws or is that asking too much? Should courts defer to the police when a question of public safety is at issue in a search? 2.) What ethical obligations should the police adhere to in carrying out their duties of investigation and arrest? Are the Ethical Considerations that are laid out in p. 463 realistic?3,) Compare electronic surveillance before the Patriot Act and after the Patriot Act.4,) Explain why fingerprinting and blood testing are important methods of identification. Articulate the procedure for use of DNA evidence in a criminal investigation.eded
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Criminal Law
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and
Procedure
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Da ni el E . H a l l , J . D . , E d . D .
A
N
Y
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5
6
8
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S
Australia • Brazil • Mexico • Singapore • United Kingdom • United States
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
444   Part II Criminal Procedure
Exhibit 12–4 SUMMARY OF FOURTH AMENDMENT ISSUES AND AUTOMOBILES
SUBJECT
CASE
Stops and Arrests
Stops may not be arbitrary.
Delaware v. Prouse (1979)
Stops may occur without suspicion if systematic.
Michigan v. Sitz (1990)
The motives of police are not relevant when
determining if a stop is lawful.
Whren v. United States (1996)
The issue is whether there is probable cause to
L
believe a traffic violation
has occurred.
I the discretion to arrest for
States may delegate
misdemeanors, including
D traffic violations, to police.
Atwater v. City of Lago Vista (2001)
Systematic stopsD
to intercept illegal drugs
violate Fourth Amendment.
Indianapolis v. Edmond (2000)
E
L
Drivers and passengers are seized when pulled
Lthey may challenge the stop
over, and therefore
and search.
,
Occupants
Brendlin v. California (2007)
Drivers of lawfully stopped auto mobiles may be
ordered out without specific cause.
Pennsylvania v. Mimms (1977)
Occupants of lawfully stopped auto mobiles may
be ordered out without
I specific cause.
Maryland v. Wilson (1997)
Occupants of automobiles
may not be searched
F
as incident to lawful search of automobiles—
probable cause toFbelieve sought item will be
found on person required.
A
United States v. DiRe, 332 U.S. 581
(1948)
Drivers and occupants may be frisked if officer
N
has reasonable belief of dangerousness
Arizona v. Johnson (2009)
T
Searches
Y
Warrantless search of automobile valid if
1 to believe item sought will
probable cause exists
be found in automobile.
5 No exigency required if
probable cause exists.
Carroll v. United States (1925)
Warrantless searches of closed container in
automobile valid if8probable cause exists to
believe item sought will be found in container.
California v. Acevedo (1991)
6
Maryland v. Dyson (1999)
New York v. Class (1986)
T
Entry into lawfully stopped vehicle to read the
VIN legitimate. S
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 12: Searches, ­Seizures, and Arrests   445
Exhibit 12–4 (continued)
Warrantless search of personal item in
automobile (e.g., purse) valid if there is probable
cause to search for an item that may be
concealed there.
Wyoming v. Houghton (1999)
Warrantless search of automobile invalid if
probable cause exists to search container in
automobile only.
California v. Acevedo (1991)
Warrantless search of recent occupant
arrestee’s automobile that is within his or her
control is valid.
Thornton v. United States (2004)
containers—are valid if systematic.
Properly framed profile may be used to stop an
automobile, but searches and arrests require T
more.
I
Arizona v. Gant (2009)
Knowles v. Iowa (1998)
Colorado v. Bertine, 479 U.S. 367
(1987)
United States v. Brignoni-Ponce
(1975)
Automobile may be seized without a warrant
if probable cause exists to belifeve it is
contraband.
F Florida v. White (1999)
F
A
charged with minor misdemeanors violated due N
process and the Fourth Amendment.
Y exhibiting substantial deference to
The Court rejected Florence’s claim in a decision
Copyright © 2015 Cengage Learning®.
L
I
Warrantless search of automobile of suspect
arrested in an officer’s cruiser invalid becauseD
car was outside of his control; warrantless
D
search of car valid if reasonable belief evidence
that is subject of arrest will be found within. E
Warrantless search of automobile by officer who
L
issued ticket but chose not to arrest driver is
L
violative of the Fourth Amendment.
Inventory searches of automobiles including ,
corrections authorities:
Maintaining safety and order at (detention) institutions
requires the expertise of cor1
rectional officials, who must have substantial discretion to devise reasonable solutions
5
to the problems they face” . . . (T)he seriousness of an offense is a poor predictor of who
6
has contraband.”
8
Although a small number of pretrial detainees are housed in prisons, most inmates
of these facilities are convictees. The Fourth T
Amendment is not fully applicable
in prisons, for three reasons. First, security concerns
outweigh privacy concerns.
S
Second, loss of privacy is considered by our society to be an attribute of confinement
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 12: Searches, ­Seizures, and Arrests   461
Exhibit 12–6 FOURTH AMENDMENT ANALYSIS
Is there governmental
action?
No
Fourth Amendment
inapplicable
No
Fourth Amendment
inapplicable
Yes
Is there a search or seizure
intruding upon a reasonable
expectation of privacy?
Fourth
Amendment
violated
No
L
I
Yes
D
Does the Fourth Amendment
D
impose probable cause
and/or warrant requirements?
E
L
Yes
L
Were the probable
,
cause/warrant
requirements satisfied?
T
I
Was the actionF
reasonable?
F
Yes A
N
Fourth Amendment
Y
satisfied
No
Yes
Fourth
Amendment
violated
Copyright © 2015 Cengage Learning®.
1
5
6
8
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No
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
462   Part II Criminal Procedure
Exhibit 12–7 SUMMARY OF WARRANT RULES AND EXCEPTIONS
SEARCHES
RULE: Pursuant to the Fourth and Fourteenth Amendments, in both federal and
state cases, a warrant to search must be obtained, unless one of the following
exceptions is established.
EXCEPTIONS and LIMITATIONS:
1. Consent
2. Terry frisks
L
4. Plain feel
I
5. Incident to arrest
D
6. Preservation ofD
evidence
7. Emergencies and
E hot pursuit
8. Borders
L
9. Motor vehicles
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10. Vehicle inventories
,
3. Plain view
11. Prisoners, probationers, and parolees
12. Protective sweeps
T
I
14. Administrative inspections
F
ARRESTS
F
RULE: The Fourth and Fourteenth Amendments govern arrests by both federal
and state officials. Arrests
in public areas may be warrantless. Arrests made in
A
the home or other property of the defendant must be supported by either an
arrest warrant or a N
search warrant for the defendant’s person. Arrests in the
homes or other property of third parties must be supported by a search warrant
Y
authorizing the search for the defendant at the particular property.
1
5
Ethical Considerations
6
POLICE ETHICS
8
Law enforcement officers are bound by departmental rules and local,
T
state, and federal laws. The Constitution itself plays a role in defining
­police ethics. For example,
the exclusionary rule is both an evidentiary
S
rule and an ethical directive.
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Copyright © 2015 Cengage Learning®.
13. Open fields
Chapter 12: Searches, ­Seizures, and Arrests   463
Ethical Considerations (c o nti nu e d)
In addition to the above laws, the International Association of Chiefs
of Police has promulgated a model policy of ethical standards. Although
not binding, these standards are widely recognized by police agencies as
good guidance.
The model policy provides, inter alia, that officers:
• shall obey the law.
• shall not behave in unbecoming ways.
L
I
shall report any convictions to their superior.
shall not harass, intimidate, or demeanD
others.
shall adhere to use-of-force policies and
Drespect civil rights.
shall not be under the influence of alcohol or drugs while on duty or in a
E
public place at any time.
L
shall not accept gifts or gratuities or otherwise financially benefit from their
position, except to receive compensation.
L
shall not use their official powers to resolve personal disputes.
,
• shall respect other officers, be truthful, cooperate with internal
investigations, and not interfere with investigations.






• shall not commence a personal relationship with the target of an
investigation and other specific individuals.
T
I
support, or posting notices, while on duty or in uniform.
F
F
A
Web Links
N
News
The home page at http://www.newspapers.com
Y provides links to many news• shall follow state law concerning political activities. Where silent, officers
shall not engage in political activities, including campaigning, soliciting
papers in the United States and abroad.
Key Terms
consent
exigent circumstances
1
5
6
8
T
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plain view doctrine
probable cause
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices   485
provide at least as much protection as the United States Supreme Court has provided in
its interpretation of the federal Bill of Rights, state courts are unrestricted in according
greater civil liberties and protections to individuals and groups”. . . . In general, when
provisions of the Ohio Constitution and U.S. Constitution are essentially identical,
we should harmonize our interpretations of the provisions, unless there are persuasive
reasons to do otherwise. . . . To hold that the physical evidence seized as a result of
­unwarned statements is inadmissible, we would have to hold that section 10, Article I of
the Ohio Constitution provides greater protection to criminal defendants than the Fifth
Amendment to the U.S. Constitution. We so find here.
Only evidence obtained as the direct result of statements made in custody without the benefit of a Miranda warning should be excluded. We believe that to hold
L
otherwise would encourage law-enforcement officers to withhold Miranda warnings and would thus weaken section 10, ArticleI I of the Ohio Constitution. In cases
like this one, where possession is the basis for the
D crime and physical evidence is the
­keystone of the case, warning suspects of their rights can hinder the gathering of eviD
dence. When physical evidence is central to a conviction
and testimonial evidence is
not, there can arise a virtual incentive to flout E
Miranda. We believe that the overall
administration of justice in Ohio requires a law-enforcement environment in which
L
evidence is gathered in conjunction with Miranda, not in defiance of it. We thus join
LPatane that their state constitutions’
the other states that have already determined after
protections against self-incrimination extend to,physical evidence seized as a result of
pre-Miranda statements.
T
I and is subject to interrogation. This
Miranda has effect as soon as a person is in custody
can occur long before or directly before the filing F
of a formal charge. Once the adversary
judicial proceeding has begun, the primary sourceFof protection changes from the Fifth
Amendment (Miranda), which continues in effect though, to the Sixth Amendment.
A
The reading of the Miranda warnings is sufficient
for protecting a defendant’s
Sixth Amendment rights, so police, courts, or prosecutors
are not required to inform
N
a defendant of the independent Sixth Amendment right, although it is often done.
Y
In practice, the Sixth Amendment and Fifth Amendment
rights are nearly identical,
Sixth Amendment
although small differences in their application exist.24
1
Electronic Surveillance 5
6
A perennial challenge for law enforcement in a free republic is to stay current with, if not
ahead of, the changes in the way people steal from8and hurt one another. Generally, law
enforcement is more reactive in a free society. InT
the past, this meant that a new problem would arise, often involving loss or injury to a few people. Law enforcement would
S of harm was proven, public supreact to the new threat and often, because the threat
port for law enforcement intervention had developed. Of course, the precise contours
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
486   Part II Criminal Procedure
of the solution would be debated but over time, a law enforcement method would
develop. However, the landscape is different today. The rapidly evolving technology of
the current age poses a new problem for law enforcement. Today, using new, personally
developed technology, an individual can quickly cause greater harm than ever before.
Even more, if the old reactive model is applied, the precise technology used to commit
the crime can be changed by the time the problem is identified and law enforcement
begins to develop a solution. In regards to terrorism, the old reactive model may not be
adequate. Some scholars and law enforcement officials argue that a new model needs
to be developed—a model that focuses more on prevention and less on detection and
prosecution. As you will see, however, the new model that is advocated by many reflects
a shift in the due process/crime
control continuum in the direction of crime control.
L
An example of this shift is in the use of electronic surveillance. Many forms of
electronic surveillanceI are used by law enforcement agencies. Wiretaps and highly sensitive microphones areDexamples. When the Supreme Court first addressed the issue of
wiretapping, it concluded that there was no Fourth Amendment protection because
there was no trespassDinto a constitutionally protected physical area. This changed
E the Katz decision, which advanced the idea that the Fourth
when the Court issued
Amendment protects L
people, not places. Now, if a person has a justifiable expectation
of privacy, the Fourth Amendment applies.
L
Despite the constitutional
aspect of using such devices, this area of law is highly
regulated by federal statutory
law. Due to a complex statutory scheme and because
,
the technology is changing so rapidly, this area of law is murky, to say the least. What
appears here is a basic overview of the law of electronic surveillance. The landmark
statute in this area of T
the law is Title III of the Omnibus Crime Control Act and Safe
Streets Act of 1968. See
I Exhibits 13–2 and 13–3.
F
F
Title III of the Omnibus Crime Control Act and Safe Streets Act of 196825 is a federal
A use of electronic surveillance. It is also known as Title III and
statute that regulates the
the Federal Wiretap Act.
N The Wiretap Act has been amended on several occasions.
Four significant amendments resulted from the Electronic Communications Privacy
Y
Act of 1986, which included what is known at the Stored Communications Act, and
Governing Statutes
the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct
1Terrorism Act of 2001 (USA Patriot Act) and the Federal Intelligence Surveillance Act of 1978 (FISA) and the FISA Amendments Act of 2008. These
laws permit the states5to enact similar legislation. State laws may not lessen, although
they may increase, the6requirements for obtaining a warrant and they must mimic the
federal laws in other ways. Today, most states have such legislation. Federal law requires
8
state officials to report their wiretap and other electronic surveillance to the federal
T of monitoring and the prevention of abuse. Exhibit 13–2
government for purposes
summarizes the requirements
to conduct electronic surveillance.
S
The Wiretap Act prohibits wiretapping, bugging, or other electronic surveillance of
a conversation when the parties to that conversation possess a reasonable expectation of
privacy. Violation of the act may result in civil and criminal penalties. Evidence obtained
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
Chapter 13: Interrogation, Electronic Surveillance, and Other Police Practices   487
Exhibit 13–2 Summary of Requirements to Conduct Electronic
Surveillance
Form of
Surveillance
Requirements for
Governmental Surveillance
Remedies
for Violations
Wiretap
Super-warrant
Criminal and civil.
­ xcept for e-mail, illegally
E
­obtained evidence is
excluded at trial. Service
providers are exempt
when acting in course of
employment.
Stored
communication
Pen register/
Trap and trace
L
I
180 days or less: Warrant
D
supported by probable
D
cause. 181 days or more:
Notice to subscriber, ad-E
ministrative subpoena, and
specific and articulable facts
L
with reasonable grounds
L
to believe data sought will
be relevant and material, to
­ongoing investigation.
Warrant supported by
probable cause
Government certifies
­relevance to investigation.
T
Court to issue order without
independent judgementIof
relevance.
Traditional liability
Criminal (lesser penalties
than for Wiretap Act) and
civil. Service providers
absolutely immune for
violations. No suppression of illegally obtained
evidence in criminal
proceedings.
No civil or criminal
­remedies.
No suppression of
illegally obtained
evidence.
F
F
A
in violation of the act is excluded at trial. The suppression
provision does not, however,
N
apply to e-mail.
The statute permits states to enact their ownY
electronic surveillance laws; however,
Copyright © Cengage Learning®.
Tracking device
those laws cannot provide less protection of individual rights than the federal statute.
A state may, however, provide greater protection of individual rights through its sur1
veillance law than does the federal statute. The USA Patriot Act amended existing
5
surveillance statutes.
When the Fourth Amendment and these statutes
6 are viewed as a whole, electronic
and wire surveillance can be divided into four categories, each with a different level of
8
privacy protection. They are
1. Wiretaps
2. Tracking devices
T
S
3. Stored communications and subscriber information
4. Pen registers and trap devices
9781305686120, Criminal Law and Procedure, Seventh Edition, Hall – © Cengage Learning. All rights reserved. No distribution allowed without express authorization.
488   Part II Criminal Procedure
Exhibit 13–3 EXAMPLES OF PATRIOT ACT CHANGES OF WIRE AND
Pre–Patriot Act
Post–Patriot Act
Warrants to intercept telephone
conversation were ­limited to
specific crimes.
List expanded to include terrorism,
c­ hemical weapons, and computer crimes.
It was unclear whether a
w
­ arrant or the lesser subpoena
was required to retrieve voice
mail.
Administrative subpoena but not warrant
required.
Pen registers and L
trap
devices
Similar technology may be applied to
e-mail; court orders have national,
not district, authority.
I
D the
Warrants had to specify
communications carrier.
D
E
Foreign intelligence gathering
L
was allowed, but limited.
L the
Federal law protects
p
­ rivacy of educational and
,
­library records.
Roving wiretaps that do not specify a
c­ arrier are permitted. The order follows the
target, who may use multiple ISPs, cable
companies, and cell phone carriers.
Governmental authority to gather foreign
intelligence was broadened.
Authority of government to obtain
­ ducational and library records that are
e
sought in terrorism or foreign intelligence
investigation is broadened.
T
I
Wiretaps
F
Law enforcement officers
F may not intercept telephone conversations or the content
of other electronic messages (e.g., e-mail) without first obtaining court approval.26
A
The Wiretap Act requires more than the Fourth Amendment for this form of surveilN the belief held by Congress that telephone conversations
lance. This stance reflects

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