Criminal Procedure: Theory and Practice

Cover
Half Title
Title
Copyright
Contents
Preface
Chapter 1 Introduction to the Constitutional and Legal Process
Chapter Outline
Part I Constitutional Introduction
1. Constitutional Basis of Rights for Persons Accused of Crime
2. Articles of Confederation
3. The Constitution: Revision in National Government
4. The Constitution: Challenges to Ratification
5. The Rationale and Need for the Bill of Rights
6. History of the Bill of Rights
7. Constitutional Developments: Civil War and Aftermath
8. The Selective Incorporation Doctrine: Federalization of Criminal Procedure
Part II Overview of State and Federal Court Organization
9. An Introduction to the Criminal Justice System
10. Organization of Courts, State and Federal: A Dual System
Part III Pretrial and Trial Criminal Procedure: An Introduction
11. The Initial Steps Toward Prosecution: Pretrial Processes
12. Pretrial Motion Hearings: Mandatory and Discretionary
13. Jury and Non-Jury Trials
14. The Trial Process From Selection of Jurors to Judgment
15. Verdicts, Sentencing Process, and Post-Trial Motions
16. Appellate Practice
17. State and Federal Habeas Corpus
18. Summary
Chapter 2 Basic Fourth Amendment Principles and the Exclusionary Rule
Chapter Outline
1. Introduction to Remedies for Fourth Amendment Violations
2. Violation of the Fourth Amendment and the Exclusion of Evidence
3. The Fourth Amendment: Implementation Prior to 1914
4. The Exclusionary Rule: Enforcing the Fourth Amendment
5. Suppression of Illegally Seized Evidence
6. Theoretical and Constitutional Basis for the Exclusionary Rule
7. Challenge to the Exclusionary Rule: The Silver Platter Doctrine
8. Application of the Exclusionary Rule to State Criminal Procedure
9. Exclusion of Derivative Evidence
10. Major Exceptions to the Exclusionary Rule
11. Exclusionary Rule Exception: The Independent Source Rule
12. Exclusionary Rule Exception: The Rule of Inevitable Discovery
13. Exclusionary Rule Exception: The Doctrine of Attenuation
14. Exclusionary Rule Exception: The Good Faith Exception
15. Limitations on the Exclusionary Rule: Parole Revocation Hearings
16. Limitations on the Exclusionary Rule: Other Contexts
17. Alternative Remedies to Fourth Amendment Violations: The Bivens Civil Suit
18. Limits to Use of the Exclusionary Rule: The Concept of Standing
19. Vicarious Standing Not Permitted
20. Summary
Chapter 3 The Concept of Stop and Frisk
Chapter Outline
1. Introduction to Stop and Frisk
2. Stop and Frisk: The Terry Legal Standard
3. Facts Indicating Unusual Conduct
4. Subject Must Be Aware of Officer’s Status
5. Flight Upon Seeing an Officer as Unusual Conduct
6. Officer Must Have Reason to Believe That the Person May Be Armed and Dangerous
7. Investigation Must Not Dispel the Fear That the Subject May Be Armed and Dangerous
8. Frisk May Not Always Allow Additional Search
9. Terry Stops Under a Drug Courier Profile
10. The Plain Feel Doctrine
11. Expansion of Stops Beyond the Genesis of Terry v. Ohio
12. Summary
Chapter 4 Arrest and Seizure of the Person
Chapter Outline
1. Probable Cause Arrests: The Legal Standard
2. The Concept of Probable Cause for Arrest
3. Plain Meaning of the Fourth Amendment
4. Probable Cause Defined
5. Sources of Probable Cause to Arrest
6. Stale Probable Cause
7. Arrest Pursuant to a Warrant
8. Requirements for Arrest Without a Warrant
9. Requirements for Arrests Within the Home
10. Requirements for Arrests Within a Third Party’s Home
11. Summary
Chapter 5 Miranda Principles: Fifth and Sixth Amendment Influences on Police Practice
Chapter Outline
1. Introduction to Miranda Warnings
2. The Basis for the Warnings
3. The Road to Miranda
4. The Case of Miranda v. Arizona
5. Prerequisites for Miranda Warnings
6. Substance of the Warnings
7. Delivering the Miranda Warnings
8. When Miranda Warnings Are Required: The Triggering Events
9. When Interrogation Must Cease
10. Necessary Condition for Miranda Warnings: Custody
11. Necessary Condition for Miranda Warnings: Interrogation
12. Miranda Interrogation: The Functional Equivalent
13. Exigent Circumstances Exception to Miranda Interrogation
14. Routine Booking Exception to Miranda Interrogation
15. Right to Counsel Under Miranda Is Personal to the Arrestee
16. Procedure for Waiver of Miranda Protection
17. Congressional Challenge to the Miranda Warnings
18. Miranda Warnings: Required by the Constitution
19. Summary
Chapter 6 Obtaining and Using Search Warrants: Practice, Execution, and Return
Chapter Outline
1. The Fourth Amendment: Probable Cause to Search
2. Specificity of Search; Particularity of Description
3. Requirement of a Warrant: Physical Searches
4. Requirement of a Warrant: Electronic Eavesdropping
5. Sources of Probable Cause: The Informant
6. Informant Probable Cause: The Totality of the Circumstances Test
7. Sources of Probable Cause: Police Officers and Others
8. The Affidavit for a Warrant: Written or Electronic
9. The Search Warrant: A Court Order
10. Fourth Amendment: Knock and Announce Requirement and Permissible Detention of Persons Present
11. Scope of Search
12. Return of the Warrant
13. Stale Probable Cause
14. Warrantless Searches: Exceptions to the General Rule
15. Summary
Chapter 7 Searches and Seizures: Houses, Places, Persons, and Vehicles
Chapter Outline
1. Searches of Houses
2. Warrant to Search and Arrest Inside the Home
3. Modern Technology and Warrantless Home Searches: Thermal Imaging Searches
4. Search Incident to Arrest
5. Search Incident to Arrest: No Warrant Requirement
6. General Scope of the Search Incident to Arrest
7. Inventory of Arrestee’s Property
8. Traditional Requirements for the Plain View Doctrine
9. Inadvertent Discovery: No Longer Required
10. Officer Needs to Be Lawfully Present
11. The Plain Feel and Plain Smell Doctrine
12. Searches Based on Consent
13. Stops and Searches of Motor Vehicles
14. Vehicle Searches Generally Do Not Require Warrants
15. Scope of Motor Vehicle Search
16. Limited Vehicle Searches on Less Than Probable Cause
17. Vehicle Inventory Searches
18. Plain View Doctrine and Motor Vehicle Searches
19. Scope of Search of Containers Within Motor Vehicles
20. Searches Following Vehicle Forfeitures
21. Other Theories of Vehicle Searches and Seizures
22. Summary
Chapter 8 The Internet of Things: Searches of Computers, Cell Phones, and Other Smart Devices
Chapter Outline
1. Introduction: Fourth Amendment and Searches of Electronic Devices
2. Personal Computer Searches
3. Searches of Cell Phones: Warrant Generally Required
4. Cell Phone: Voluntary Consent and Emergency Exceptions
5. Searches of Smart Devices
6. FitBits and Similar Devices
7. Cameras
8. Heart Monitors and Pacemakers
9. Cloud Storage Concepts: Searches
10. Amazon Echo and Similar Internet Smart Devices
11. Law Enforcement Use of Vehicle GPS Trackers: Warrant Required
12. Use of OnStar Location and Tracking and Comparable Electronics
13. Automobile Event Data Recorders: Searches and Warrants
14. Summary
Chapter 9 Searches of Open Fields and Abandoned Property
Chapter Outline
1. Introduction to Open Fields: No Expectation of Privacy
2. Genesis of the Open Fields Doctrine: The Hester Case
3. The Dunn Case and Refining the Concept of the Curtilage
4. Expectation of Privacy and Abandoned Property
5. General Proof of Intent to Abandon
6. Abandonment of Personal Property
7. Abandonment of Motor Vehicles
8. Police Misconduct and Abandonment of Personal Property
9. Abandonment of Real Property, Land, Home, and Motel
10. Summary
Chapter 10 Special Needs Searches
Chapter Outline
1. Introduction to Administrative, Special Needs, Inventory, School, Airport, and Work Searches
2. Administrative Searches: General Principles
3. Administrative Searches of Ordinary Businesses and Industries
4. Ordinary Commercial Business: Search Warrant Required
5. Administrative Searches of Closely Regulated Industries
6. Administrative Searches of Homes: Warrant Required
7. Inventory Searches: Probable Cause Not Required
8. Vehicle Inventory Searches
9. Post-Arrest Inventory Searches of Personal Property
10. Public School Searches: Based on Fourth Amendment Reasonableness
11. Public School Drug Searches: Drug Testing of Athletes and Other Students
12. Government Searches in the Government Workplace
13. Government-Mandated Private Employer Workplace Searches
14. Airport, Subway, and Transportation Searches
15. Border Searches: Sovereignty and the Fourth Amendment
16. National Security and Anti-Terrorism Searches
17. Summary
Chapter 11 Confession and the Privilege Against Self-Incrimination
Chapter Outline
1. Introduction to the Fifth Amendment Privilege
2. Original Intent and the Fifth Amendment
3. Privilege Against Self-Incrimination: Excludable Evidence
4. The Fourteenth Amendment Alterations
5. Required Production of Nontestimonial Evidence and the Fifth Amendment
6. Assertion of the Privilege Against Self-Incrimination
7. Privilege Against Self-Incrimination Assertable in a Variety of Contexts
8. Prosecution Comment on Defendant’s Use of Fifth Amendment
9. An Equivalent Substitute for the Fifth Amendment Privilege: Immunity
10. Waiver of the Fifth Amendment Privilege
11. Confession Practice Prior to the Warren Court Revolution
12. Evolution of Interrogation and Confession under the Warren Court
13. Modern Evolution of Interrogation and Confession
14. Personal Motivations for Confession Irrelevant
15. Involuntary Confession Not Available for Proof of Guilt
16. Involuntary Confession Not Available for Impeachment
17. Violation of Miranda: Use of Confession for Impeachment Purposes
18. Summary
Chapter 12 Pretrial Criminal Process: Pretrial Motions, Identification Process, Preliminary Hearing, Bail, Right to Counsel, Speedy Trial, and Double Jeopardy
Chapter Outline
1. Pretrial Motions
2. Identification Procedures: Introduction
3. Due Process and the Right to Counsel at Identification Procedures
4. Sixth Amendment Right to Counsel at Lineups
5. Right to Counsel During Identification: Limitations
6. Photographic Arrays: No Sixth Amendment Right to Counsel
7. Due Process Concerns: Suggestiveness of Identification
8. Accurate Eyewitness Identification: The Neil v. Biggers Five-Factor Test
9. Current Application of Identification Procedures
10. The Initial Appearance and the Preliminary Hearing
11. Bail Issues Presented at a Preliminary Hearing
12. General Bail Jurisprudence
13. Federal Bail Practice: Relevant Considerations
14. Right to a Speedy Trial: Reasonable Time Requirements
15. Speedy Trial Statutes
16. Speedy Trial: When the Time Begins to Run Under the Sixth Amendment
17. To Determine Whether a Violation Exists: The Four-Factor Test
18. Remedy for Violation of Sixth Amendment Right to Speedy Trial
19. Double Jeopardy: A Required Pretrial Motion
20. Requirements to Claim a Violation of Double Jeopardy
21. Alleging Double Jeopardy Violation: Requirement of Same Offense
22. Separate Offenses: The Blockburger Test
23. Dual Sovereignty Doctrine: Successive Prosecution for Same Acts Permitted
24. Summary
Chapter 13 Trial Procedure and Legal Rights
Chapter Outline
1. Trial By Jury: A Sixth Amendment Constitutional Right
2. Selective Incorporation of the Sixth Amendment Into the Due Process Clause
3. Application of the Right to a Jury Trial
4. Determining Whether the Right to a Jury Trial Exists
5. Selecting Jurors From a Fair Cross-Section of the Jurisdiction
6. Violation of the Fair Cross-Section Requirement: Proof and Remedy
7. Waiver of the Right to a Trial by Jury
8. Jury Size: Difference in State and Federal Requirements
9. State Efforts to Reduce the Size of Juries
10. The Concept of Jury Unanimity
11. Combination of Smaller Juries With Unanimous Verdicts
12. Trial by Jury: Issues Involving Racial and Gender Discrimination
13. Removal of Prospective Jurors: Proper and Improper Rationales
14. Using Peremptory Juror Challenges
15. Evolution of the Sixth Amendment Right to Trial Counsel
16. Constitutional Right to Counsel: Felony and Misdemeanor Cases
17. Summary
Chapter 14 Appellate Practice and Other Posttrial Remedies
Chapter Outline
1. The Right to Appeal
2. The Appeal Process: Generally
3. The First Appeal: The Court of Appeals
4. The Appellate Role of a State Supreme Court
5. Supreme Court of the United States: Only a Potential for Review
6. Appellate Assistance to the Defendant: The Right to Counsel
7. Appellate Assistance to the Defendant: The Indigent’s Right to a Transcript
8. Laying the Groundwork for an Appeal: Preserving the Record
9. The Plain Error Rule: Ability to Appeal Without Preserving the Record
10. Subject Matter Jurisdiction: Always an Appealable Issue
11. The Appellate Process: Making It Work
12. Adverse Appellate Results: The Next Step
13. Collateral Attack: The Writ of Habeas Corpus
14. Summary
Appendix A: The Constitution of the United States
Appendix B: The Bill of Rights and Other Amendments to the Constitution
Glossary
Index of Cases
Subject Index