Criminal procedure is a popular law school course. This area implicates issues including privacy, race relations, socioeconomic status, technology, and more, many of which come up in our daily interactions with government officials and in our use of technological devices.
At my school, criminal procedure is divided into investigation and adjudication. In this article I give an overview of the former, discussing three topics that I found to be most important and interesting.
Fourth Amendment searches
It is a common notion that the U.S. Constitution protects individuals from unreasonable searches and seizures. The most straightforward application occurs in the “sacred home.” Police officers cannot enter your house without a warrant that is issued by a judge and based on probable cause. Of course, other situations present a closer call. The general principle is “reasonable expectation of privacy”—there is a Fourth Amendment search if there is an intrusion on a subjective expectation of privacy, which society recognizes as reasonable. The Supreme Court has found a reasonable expectation of privacy in the “curtilage” of the home (such as the surrounding areas like the front porch or patio), in the collection of bulk location data from a cellphone carrier, etc. There is no reasonable expectation of privacy in the information you voluntarily share with your bank or phone carrier, in garbage that you throw onto the public street, in the contents of your luggage searched by a dog sniff, etc. The Court tends to draw on social norms and assumptions of risk to make these determinations.
Once there is a Fourth Amendment search, the next step is to determine (1) if there is probable cause for the search and (2) if there is a warrant, or if the warrant is excused. These requirements impose a check on arbitrary decisions by introducing a neutral arbiter—a judge—to review the evidence, unless there is an emergency situation – such as the hot pursuit of a fleeing suspect or an imminent threat to safety.
If a court finds a Fourth Amendment violation due to an unreasonable search, all evidence must be suppressed, as it is branded “fruit of the poisonous tree.”
The Miranda warning is a staple of police and detective shows. Established in Miranda v. Arizona and based in the Fifth Amendment, this procedural safeguard notifies an individual of his or her rights to remain silent and have an attorney, and provides an opportunity to waive or invoke these rights. This warning must be given when the individual is in custody and is interrogated by a known government agent. If the government fails to properly Mirandize, the individual’s testimonial evidence is excluded.
The court is wary of police officers using tactics to diminish the effectiveness of Miranda warnings—striking down a deliberate practice where police Mirandized the accused immediately after she confessed, and then asked for the confession again. The court also affords quite robust protection when an accused expresses a desire for an attorney—barring the government from re-initiating interrogation for 14 days.
First, what is a wiretap? Put simply, it is the act of using a listening device to conduct surveillance. You may recall the reports about NSA’s surveillance programs collecting vast amounts of personal data.
Congress has passed statutory provisions governing wiretaps, in Title III of the Omnibus Crime Control and Safe Streets Act of 1968. States and federal jurisdictions frequently use wiretaps in cases involving organized crime, conspiracies, and drug rings.
In order to intercept wire, oral, and electronic communications, the federal agent submits a wiretap application, which specifies the probable cause for the wiretap, the intended targets and the relevant communications, and the time period—not exceeding 30 days—for maintaining the tap, among other requirements. The judge reviews the application and may issue a valid order if the probable cause and necessity requirements are met. That is, there is probable cause to believe that an offense under the statute has been or will be committed, and the wiretap will result in relevant communications; moreover, the wiretap is necessary because normal investigative tools have been tried and failed, or they would be useless, dangerous, or impossible. The necessity standard is quite permissive; even though the government has the burden of proof, it is sufficient for the government to generically allege the inferiority of other investigative tools. The government need not have exhausted all these tools before seeking an order.
In executing the wiretap, a government agent has an obligation to minimize, which means reduce the interception of non-pertinent calls by adopting reasonable measures, such as shutting off the wiretap if the conversation is totally irrelevant to the crime being investigated. The determination is fact-specific, and there is a lot of deference given to the police making real-time decisions.
I found the investigation portion of criminal procedure to be fascinating, and I hope you will consider taking the course!
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