Chapter 5
The Constitution and
Criminal Justice
CHAPTER OUTLINE
I. INTRODUCTION
A. Relevant Constitutional Provisions
II. SEARCH AND SEIZURE
A. Reasonable Expectations of Privacy
1. Technology and the Fourth Amendment
B. Probable Cause
2. Automobile Searches
3. Other Justifications for Warrantless Searches
G. Investigatory Detention
1. Detention Based on “Profiling”
3. Can Police Require People to Exit Their Cars during Automobile Stops?
III. THE EXCLUSIONARY RULE
A. The Warren Court Expands the Exclusionary Rule
B. The Burger Court Curtails the Exclusionary Rule
1. The Good-Faith Exception
C. Civil Suits to Enforce the Fourth Amendment
IV. ARREST
A. The Probable Cause Hearing
B. Use of Force by Police in Making Arrests
V. POLICE INTERROGATION AND CONFESSIONS OF GUILT
A. The Miranda Warnings
1. The Public Safety Exception to Miranda
2. The Inevitable Discovery Exception
B. Must a Suspect Speak to Invoke the Right to Remain Silent?
C. Police Deception in Interrogations
D. Can a Coerced Confession Be a “Harmless Error”?
VI. THE RIGHT TO COUNSEL
A. The Gideon Decision
B. Effectiveness of Appointed Counsel
1. Self-Representation
VII. BAIL AND PRETRIAL DETENTION
VIII. PLEA BARGAINING
IX. TRIAL BY JURY
A. The Problem of Pretrial Publicity
1. Closure of Judicial Proceedings
1. Gender-Based Peremptory Challenges
X. THE PROTECTION AGAINST DOUBLE JEOPARDY
A. Successive State and Federal Prosecutions
B. Mistrials
C. Confinement of Sexual Predators in Mental Institutions
XI. INCARCERATION AND THE RIGHTS OF PRISONERS
A. Habitual Offender and “Three Strikes” Laws
B. Prisoners’ Rights
XII. THE DEATH PENALTY
A. The Furman Case
B. The Court Reinstates the Death Penalty
C. Other Procedural Aspects of Death Sentencing
D. The Death Penalty and Racial Discrimination
E. Is the Federal Death Penalty Law Constitutional?
XIII. APPEAL AND POSTCONVICTION RELIEF
A. Federal Habeas Corpus Review of State Criminal Cases
2. Congress Modifies the Federal Habeas Corpus Procedure
XIV. JUVENILE JUSTICE
XV. CONCLUSION
CRITICAL THINKING QUESTIONS
1. Has the Supreme Court of late abandoned its commitment to the constitutional rights of
the accused or has it merely restored a sense of balance to the criminal justice system?
2. Does the rule against compulsory self-incrimination apply to physical evidence (such as
fingerprints, DNA samples, or blood-alcohol tests)? Should it apply to such evidence?
3. What constitutional questions, if any, are raised by state laws requiring convicted sex
offenders to register their names and addresses with state agencies after they complete
their prison sentences?
4. What constitutional issues would surround a state’s decision to permit executions by
electric chair to be shown on live television?
5. In your judgment, would there be a constitutional problem with allowing crime victims to
make a statement before the court prior to sentencing in all felony cases?
6. Should the rights of crime victims be accorded as much protection as the rights of
criminal defendants? How can the Court best balance the two?
7. Should the Fourth Amendment exclusionary rule be further strengthened, weakened, or
abandoned?
11. The right to trial by jury has been incorporated to the states via the Fourteenth
Amendment in all criminal cases, yet the right to trial by jury in civil cases has not been
incorporated and applied to the states. Why has the Supreme Court made this distinction?
Do you agree with the Court’s rationale? Do you think that the Court will someday
consider requiring states to provide trial by jury in all civil prosecutions?
12. In Roper v. Simmons (2005) Justice Kennedy pointed out that states executing criminals
under the age of 18 at the time of their crime was not in line with international standards
much to the chagrin of Justice Scalia. Do you think the Court should consider
international trends and standards in making decisions pertaining to the United States
constitution? Why or why not?
LECTURE LAUNCHERS
1. How to Introduce the Concept of the Rights of the Accused
After the instructor has introduced the basic rights of the accused to the students, one mechanism
to illustrate the numerous constitutional issues that can arise during the course of a criminal
prosecution is have a classroom viewing of a documentary published by the Public Broadcasting
2. Search and Seizure from the Law Enforcement Point of View
Students often are curious as to the training police officers receive related to conducting searches
consistent with the Fourth Amendment. After the instructor has introduced the basic premise of
the Fourth Amendment and the rights of individuals facing a police search, it can be informative
to show students how law enforcement conceives of the process as well. Many local police
departments have information containing search and seizure on their official websites. While it
might be of most interest to students to use a local example, instructors can make use of this one
HYPOTHETICAL PROBLEM (FOR CLASSROOM
DISCUSSION OR ESSAY EXAMINATION)
At approximately 10:00 a.m. on May 5, 2012, two “masked gunmen” wearing brown leather
jackets entered the First Indiana Bank in Dismal Vista, Indiana, ordered the cashier to open the
safe, and absconded with $40,000 in currency. Two witnesses reported seeing the bank robbers
leaving the scene in a “late model blue–ish Toyota Camry.” Three days later, May 8, 2012, four
police officers in the town of Flatburg, Indiana, eighteen miles south of Dismal Vista, prompted
by a “tip” from an anonymous informer, forcibly and without a warrant entered the residence of
Jasper Seymour, owner of the Seymour Adult Theatre, a controversial local establishment
advertising “the nation’s best in hard–core porno flicks.”
Finding no one at home, the officers proceeded to conduct a thorough search of the five-room
house and adjoining garage. They confiscated two large wooden boxes containing what the
officers regarded as “obscene DVDs and video tapes.” As the police were leaving the premises,
Mr. Seymour drove up in his green 2003 Camry. Two of the officers promptly conducted a “pat–
down search” of his outer garments and discovered a package in his coat pocket containing three
At this point one of the officers advised Seymour of his Miranda rights and Seymour requested
permission to phone his attorney. Permission was granted, and Seymour’s attorney instructed him
to say nothing more to the police. Seymour was later charged with bank robbery, and with
violation of the state’s obscenity and controlled substances laws. The DVDs and video tapes,
marijuana cigarettes, cocaine, and $20 bill, together with his previously quoted alleged statement
Fifth Amendment concerns also? Could you articulate the stance that Sixth Amendment had also
been violated? Which of these arguments do you feel is strongest and presents the greatest
opportunity for Mr. Seymour’s case to be granted certiorari? In your opinion, what are Seymour’s
chances of seeing his conviction overturned?
KEY TERMS
ex post facto laws A retroactive law that criminalizes actions that were innocent at
the time they were taken or that increases punishment for a
criminal act after it was committed.
bills of attainder A legislative act imposing punishment on a party without the
benefit of a judicial proceeding.
habeas corpus “You have the body.” habeas corpus, writ of: A judicial order
issued to an official holding someone in custody, requiring the
official to bring the prisoner to court for the purpose of allowing
the court to determine whether that person is being held legally.
search and seizure Term referring to the police search for and/or seizure of
contraband or other evidence of crime.
search warrant A court order authorizing a search of a specified area for a
specified purpose.
neutral and detached judicial A judge or magistrate who is without an interest in the outcome
officer of a case.
general warrants A search or arrest warrant that is not particular as to the person
to be arrested or the property to be seized.
anonymous informant An informant whose identity is unknown to the police.
confidential informant An informant known to the police but whose identity is held in
confidence.
exigent circumstances Situations that demand unusual or immediate action.
warrantless search A search made by police who do not possess a search warrant.
search incidental to a lawful Search of a person placed under arrest and the area within the
arrest arrestee’s grasp and control.
search based on consent A search of person or property conducted after a person
voluntarily permits police to do so.
hot pursuit (1) The right of police to cross jurisdictional lines to apprehend a
suspect or criminal. (2) The Fourth Amendment doctrine
allowing warrantless searches and arrests where police pursue a
fleeing suspect into a protected area.
evanescent evidence Evidence that will likely disappear if not immediately seized.
emergency search A warrantless search performed during an emergency, such as a
fire or potential explosion.
investigatory detention Brief detention of suspects by a police officer who has
reasonable suspicion that criminal activity is afoot.
stop and frisk An encounter between a police officer and a suspect during
which the latter is temporarily detained and subjected to a pat-
down search for weapons.
arrest warrant A document issued by a magistrate or judge directing that a
named person be taken into custody for allegedly having
committed an offense.
probable cause hearing A hearing held in a court to make a formal determination on an
issue of probable cause.
warrantless arrest An arrest made by police who do not possess an arrest warrant.
custodial interrogation Questioning by the police of a suspect in custody.
Miranda warning The warning given by police to individuals who are taken into
custody before they are interrogated. Based on the Supreme
Court’s decision in Miranda v. Arizona (1966), the warning
public safety exception Exception to the Miranda requirement that police officers
promptly inform suspects taken into custody of their rights to
remain silent and have an attorney present during questioning.
Under the public safety exception, police may ask suspects
questions motivated by a desire to protect public safety without
jeopardizing the admissibility of suspects’ answers to those
questions or subsequent statements.
inevitable discovery exception An exception to the Miranda requirements and the fruit of the
poisonous tree doctrine; allows the admission of evidence that
was derived from inadmissible evidence if it inevitably would
have been discovered independently by lawful means.
ineffective representation Representation by an attorney who is incompetent or less than
reasonably effective.
mockery of justice test Judicial test for determining whether a defendant was provided
defendant agrees to plead guilty in exchange for some
concession (for example, a reduction in the severity or number of
charges brought).
knowing and intelligent waiver A waiver of rights that is made with an awareness of the
consequences.
publicly or privately about a particular case.
closure of pretrial proceedings Decision by a judge to close proceedings prior to trial of a
criminal case in order to protect the defendant’s right to a fair
trial.
unanimity rule A decision rule requiring a unanimous vote.
racially motivated peremptory Peremptory challenges to prospective jurors, based solely on
challenges racial animus or racial stereotypes.
gender-based peremptory A challenge to a prospective juror’s competency to serve based
challenges solely on the prospective juror’s gender.
double jeopardy The condition of being prosecuted a second time for the same
prisoners’ rights The set of rights that prisoners retain or attempt to assert through
litigation.
punitive isolation Solitary confinement of a person who is incarcerated.
discrete and insular minorities Minority groups that are locked out of the political process.
death penalty Capital punishment; a sentence to death for the commission of a
victim’s family.
appeal by right An appeal brought to a higher court as a matter of right under
federal or state law.
error correction The function of appellate courts in correcting more or less
routine errors committed by lower courts.
INSTRUCTOR RESOURCES
Amar, Akhil Reed. The Constitution and Criminal Procedure: First Principles. New Haven, CT:
Yale University Press, 1997.
Bedau, Hugo Adam (ed.). The Death Penalty in America: Current Controversies. NY: Oxford
University Press, 1997.
Berns, Walter. For Capital Punishment. NY: Basic Books, 1979.
1974.
Dershowitz, Alan M. The Best Defense. NY: Random House, 1982.
1966.
Landynski, Jacob W. Search and Seizure and the Supreme Court. Baltimore: Johns Hopkins
University Press, 1966.
1968.
Scheb II, John M. Criminal Law and Procedure (8th ed.). Belmont, CA: Cengage, 2013.
Scheingold, Stuart A. The Politics of Law and Order: Street Crime and Public Policy. NY:
Longman, 1984.
Schlesinger, Stephen. Exclusionary Injustice. NY: Dekker, 1977.
Sigler, Jay. Double Jeopardy: The Development of a Legal and Social Policy. Ithaca, NY: Cornell
University Press, 1969.
NOTES ON EXCERPTED CASES
OLMSTEAD v. UNITED STATES (1928).
Olmstead, a suspected bootlegger, was charged with conspiracy to violate the National
Prohibition Act. The government’s evidence consisted of transcripts of Olmstead’s telephone
conversations obtained through a wiretap placed outside his property. The agents had obtained no
warrant authorizing the wiretap. Although there was no search or seizure of his person or physical
property, Olmstead maintained that the Fourth Amendment had been violated. The term “effects,”
as used in the Fourth Amendment, could have been interpreted to include telephone
conversations, but the Court opted for a narrower construction. Writing for the majority, Chief
Justice Taft stated: “The reasonable view is that one who installs in his house a telephone
KATZ v. UNITED STATES (1967).
In this landmark 1967 decision, the Supreme Court overturned Olmstead v. United States (1928).
The Court reversed a conviction in which government agents, acting without a warrant, attached a
“bug,” or listening device, to the outside of a public telephone booth from which Charles Katz, a
suspected bookie, often placed calls. Writing for the Court, Justice Stewart famously stated that
“the Fourth Amendment protects people—not places.” According to Justice Harlan’s
WEEKS v. UNITED STATES (1914).
The Court held that evidence obtained by federal agents in violation of the Fourth Amendment
may not be used in a federal prosecution. Justice Day’s opinion for the unanimous Court
suggested that exclusion of tainted evidence was implicit in the requirements of the Fourth
Amendment: “If letters and private documents can thus be [illegally] seized and held and used in
MAPP v. OHIO (1961).
Cleveland, Ohio police arrived at Dollree Mapp’s home pursuant to information that a bombing
suspect was hiding there. They demanded access, but failing to produce a search warrant, were
denied. Police returned some four hours later and forced their way into the home. Mapp, who
protested the entry, was forcibly detained while officers searched the home. Although police
failed to locate the bombing suspect, they did find in a trunk in the basement some sexually
explicit materials. Mapp was arrested, tried and convicted under the Ohio statute proscribing
possession of obscene materials. Dividing 6–3, the U.S. Supreme Court, in an opinion from
Justice Tom C. Clark, reversed her conviction. Holding that the evidence had been improperly
admitted against her since it had been obtained in violation of the Fourth Amendment warrant
requirement; the Court overruled its precedent in Wolf v. Colorado (1949) in this landmark
UNITED STATES v. LEON (1984).
Police officers obtained a search warrant acting on a tip from a confidential informant of
unproven reliability. A subsequent search of a residence turned up a substantial amount of illegal
drugs. At an evidentiary hearing prior to trial, a judge ruled that the warrant had been wrongly
issued; that there was insufficient information to constitute probable cause. Dividing 6–3 the
Supreme Court ultimately held that the evidence could nevertheless be admitted against the
defendants, because to exclude such evidence would have no deterrent effect on police
MIRANDA v. ARIZONA (1966).
Police arrested Ernesto Miranda, a 23 year-old indigent with a ninth grade education, and charged
him with raping an 18 year-old girl. At the police station, the victim picked Miranda out of a
“lineup.” Two officers then took Miranda to a room where they interrogated him. After first
denying his guilt, Miranda eventually confessed to the crime. Following his conviction, Miranda
appealed on the ground that his confession had been coerced. The Supreme Court granted review,
consolidating Miranda’s appeal with three other cases involving the admissibility of confessions.
A narrowly divided 5–4 Court reversed Miranda’s conviction, holding that his confession had
been improperly admitted into evidence. Per Chief Justice Warren, the Court held that,
DICKERSON v. UNITED STATES (2000).
In this case the Supreme Court reconsidered the landmark Miranda decision of 1966. Scholars
speculated that given the Rehnquist Court’s generally conservative disposition, and given that
POWELL v. ALABAMA (1932).
Ozie Powell and six other black defendants were charged with raping two white girls. The
defendants, who were poor, young, and uneducated, were tried without assistance of counsel. An
all-white jury found them guilty and sentenced them to death. Dividing 7–2, the Supreme Court
reversed the convictions, holding that the defendants had been denied due process of law. The
Court stopped well short of saying that all indigent defendants must be provided counsel in all
GIDEON v. WAINWRIGHT (1963).
Clarence Earl Gideon, a 51 year-old indigent “drifter” who had been in and out of jails all his
adult life, was charged with felonious breaking and entering. At trial, he requested that the court
appoint an attorney to represent him. The court refused, citing the Florida law that required
appointment of counsel for indigent defendants only in capital cases. While serving his sentence
in the Florida State Prison, Gideon unsuccessfully challenged his conviction in the Florida
Supreme Court on a writ of habeas corpus. He then obtained review by the U.S. Supreme Court
on a writ of certiorari. In a unanimous decision, the Court reversed Gideon’s conviction. Writing
FURMAN v. GEORGIA (1972).
In this case five Supreme Court justices voted to strike down Georgia’s death penalty statute.
There was, however, only a brief per curiam opinion announcing the judgment of the Court. For
the majority’s rationale, one had to look at five separate concurring opinions. Only two of the five
justices—Brennan and Marshall—held that the death penalty itself was cruel and unusual
punishment, given the “evolving standards of decency.” Of the five justices who voted to
invalidate the death penalty, Justice Stewart’s opinion seems to have been the most influential.
GREGG v. GEORGIA (1976).
In the wake of the Furman decision, some thirty-five state legislatures rewrote their death penalty
laws. The revised Georgia Law requires a bifurcated trial for capital crimes: In the first stage guilt
is determined in the usual manner; the second stage deals with the appropriate sentence. For the
jury to impose the death penalty, it has to find at least one of several statutorily prescribed
aggravating factors. Automatic appeal to the state supreme court is also provided. The appellate
review must consider not only the procedural regularity of the trial, but whether the evidence
ROPER v. SIMMONS (2005).
In Stanford v. Kentucky (1989) the Supreme Court held that juveniles aged 16 and older at the
time of their crimes could be sentenced to death. According to Justice O’Connor’s controlling
opinion, “it is sufficiently clear that no national consensus forbids the imposition of capital
BAZE v. REES (2008).
Kentucky, along with 35 other states, used lethal injection at the time this case reached the
Supreme Court as the method of carrying out state-sanctioned executions because it was viewed
as the most humane method. The specific question before the Court is whether the protocol
adopted by the state carried an intolerable risk that persons to be executed will be subjected to
unnecessary pain during the procedure; thus, in violation of the Eighth Amendment’s ban against