§ 1. Procedures and Context
Criminal Procedure I
Prof. Meares
§ 1. Procedures and Context 1
Daily Interactions Between Police and Citizens [pp. 3–20] 1
Traditional Policing v. Community Policing [pp. 20–36 & Supp.] 2
Borders of Criminal Procedure [HO #1 re: Morales] (From M. Adiga) 3
§ 2. Brief Searches and Stops 6
Stops and Reasonable Suspicion [pp. 37–61] – Justification Required for Stop 6
Basis for Reasonable Suspicion [pp. 61–66, 67–70 nn 1, 3, 4, 6, 71–77, HO #2 re: Wardlow] 7
Pretext Stops – Driving While Black [pp. 77–82, HO #2 re: Ladson instead of Tate, pp. 84–87, HO #2 re: DWB] 9
Sobriety Checkpoints; Plain View [pp. 87–99, HO #2 re: Edmond, 99-112, HO#2 Bond] 11
Brief Searches of Individuals [pp. 113–131, HO #3 re: A. Schwartz] 14
§ 3. Full Searches of People and Places 15
Origins of the 4th Amendment [pp. 133–43, HO #3 re: 4th Amend.] 15
Probable Cause [pp. 143–72] 16
Alternatives to Probable Cause; Exigent Circumstances [pp. 172–76, 176–81, HO #3 re: Montoya de Hernandez] 18
Warrants [pp. 181–87, 194–212] 20
Consent Searches, Apparent Consent [pp. 212–33] 22
Searches Incident to Arrest [pp. 235–51] 25
Strip Searches [pp. 245–51] 27
Houses, Workplace and Schools [pp. 251–74]– Katz v. United States – The Fourth Amendment protects people not places. 27
Inventory Searches, Cars, and Containers [pp. 292–319] 28
§ 4. Arrests 31
Arrest v. Stop [pp. 325–40] – Always ask: Has an arrest occurred at all? 31
Use of Force [pp. 364–81] 32
§ 5. Remedies 33
Exclusionary Rule—Origins and Policy [pp. 383–411] 33
Exclusionary Rule—Limits [pp. 412–29] – To the extent you think the primary purpose of the exclusionary rule is simply to deter police conduct, the limits will play out differently. 34
§ 6. Wiretaps and Technology 37
§ 7. Interrogations/Miranda 38
Interrogations and Voluntariness [pp. 549–72] 38
Miranda and Custody [pp. 570–600] 40
Interrogations and Warnings [pp. 600–24] 42
Invocation and Waiver [pp. 624–45] 43
Impact [pp. 652–61] 45
§ 8. Identifications 46
The university of Chicago law school
Outline – autumn 2001
1
§ 1. Procedures and Context
§ 1. Procedures and Context
I. Daily Interactions Between Police and Citizens [pp. 3–20]
A. Community Caretaking
(1) High percentage of police time now devoted to community caretaking
(2) Codification: Oregon stands alone in codifying community caretaking function.
a. “The right to enter or remain upon the premises…” if necessary to
(i) Prevent serious harm to people or property
(ii) Render aid to injured
(iii) Locate missing persons
(3) State v. Dube – Facts: Officers entered upon request of custodian who needed to fix pipes. Saw excrement everywhere. Called for back up, called for camera, took pictures. The police officers’ initial entry into an apartment due to an emergency was legitmate under their community caretaking function (statutorily authorized), but their continued stay was improper. All evidence gathered during that time, including pictures, was improper.
a. Impact – Ct. sanctions the presence of police in apt \ we can expect an increase in that activity. The rule in Dube encourages police to find 3rd parties to let them in and police will just bring cameras with them next time so they won’t have to wait around.
b. Alternative – Could have focused on whether officer had a good reason to stay. A la Orgeon statute. This would have forced officer to give reason, such as prevent harm to child endangered in house, for staying.
(4) State v. Stowe –
a. Court decides that officer did not consent to being hit by a drunk man when he tried to get the man to the hospital for help with a cut arm. When the man refused the officer's assistance, the officer arrested him for disturbing the peace and the drunk man assaulted him at that time. Officer was justified in believing that D who was in a drunken state in the street was acing in a manner which would foreseeably disturb or alarm the public \ officer had probable cause for arrest.
b. Dissent argued that the D had minded his own business and the police officer "imposed" his unwanted assistance on this man who then had a right to refuse and then resist the unlawful arrest.
c. Impact – Stowe opens up possibility for police to use force in caretaking capacity
(5) Comm. caretaking v. criminal enforcement: Comm. caretaking can change into criminal enforcement.
a. Crime v. civil violation – Legislative choice between making an act a crime or civil violation may affect ® caretaking or crim. enforcement
(6) Resisting unlawful arrest – Some states recognize that a citizen can resist an unlawful arrest, while others require submission.
(7) Community caretaking cases highlight how much discretion police have in day-to-day activities. Usually exercise this discretion negatively by deciding not to bring person into criminal process.
a. In Dube and Stowe - there was a criminal consequence that flowed from community caretaking action. W/o crim conseq there will be no court review. The only remedy would be a civil action (unlikely).
B. Police Enforcement of Civility – Protection of the police’s idea of their own authority.
(1) Should police officers be required to take more or less abuse than the average citizen?
(2) St. Paul v. Morris – Says cops take less abuse. Calling the cops “white mother f—kers” constituted disorderly conduct because legislation relating to disorderly conduct also embraces acts corrupting the public morals or outrage the sense of public decency.
(3) State v. Janisczak – Says cops take more abuse. D screamed and yelled “f—k you” to cops while protesting arrest of a motorist on the highway; state may only prohibit fighting words or speech that produces or is likely to produce clear and present danger of substantive evils.
(4) Majority view: Morris may appear to be a product of its time, but some cts. still uphold disorderly conduct convictions for what is little more than profanity.
C. Policy Questions – What are the goals of policing?
(1) Two models
a. Packer – Law enforcement as battle. Crime control number one goal. Put in hurdles to make enforcement harder.
b. Griffin (?) – Family model. Based on informal control. Not necessarily antagonistic. Assumes basic trust between actors in process.
(2) How much regulation do we want over police?
(3) What kinds of regulations are the best?
a. Constitutional control – Takes community caretaking from the hands of the political process. But could amount to “self-regulation” given that courts will not see vast majority of cases. And they will only tend to see those cases where person is convicted of a crime.
b. Other possibillities: Statutes, admin. reg. (executive controls), elections, etc. – Brings the control closer to the process. But statutes tend to be bright line rules that are over and under inclusive.
(i) Living in the community? Cops living in the communities they police.
(4) How best to bring accountability?
II. Traditional Policing v. Community Policing [pp. 20–36 & Supp.]
A. Historical Transformation of the Basis of Legitimacy
(1) Until 1940s – Police depts ¬ directly controlled by local political leaders and responded to a variety of local needs.
(2) 1940s-1980s – “Reform Era” – Police moved to narrow their functioning to crime control and criminal apprehension; police agencies became law enforcement agencies.
(3) Past 20 yrs – “Community policing” – Shift in control over police resources from central mgmt into each community, a broadening of the goals beyond crime control. Philosophy differs from traditional policing because it is an interactive process between the police and the community to mutually identify and resolve community problems:
a. Results v. Process – Orientation toward problem solving
b. Values – Policing values incorporate citizen involvement
c. Accountability – Understanding what’s important to particular neighborhoods
d. Decentralization of both authority and structure.
e. Empowerment of beat officers – Encourage off’rs to initiate creative responses to neighborhood problems.
f. Supervision and management – Patrol off’r becomes the manager of his beat, first-line supervisor is the trainer, coacher, and coordinator; management provides resources.
g. Training – Reflects new philosophy & illuminates police-community relationship to recruits and cadets.
h. Performance evaluation – Criterion becomes the absence of incidents.
i. Managing calls-for-service – Manage time of off’rs so that they are available to engage in problem-solving and community-organizing activites leading to improvements in the quality of neighborhood life.
B. Curfew Laws – Juvenile curfews grant powerful discretion to police officers.
(1) 3 Possibilities
a. Mandatory enforcement
b. Less but targeted enforcement
c. No enforcement
(2) Role of the statute
a. Does the existence of a “gang loitering statute” really grant more power to the police?
(i) Such a role may already be part of their community caretaking function.
? Depends on the history and context of policing.
III. Borders of Criminal Procedure [HO #1 re: Morales] (From M. Adiga)
I. Defn of Border
A. View about the ordinary behavior of the police shape the proced that govern the less ordinary confrontations between citizens and officers
II. Amicus brief against the anti-loitering statute
A. Tensions have always existed between police and minorities and it continues into today.
B. The ordinance is unconstitutionally vague as it fails to define in any meaningful way the conduct that is prohibited.
(1) Desire to combat crime cannot suspend cons protections against vague laws.
C. The ord directs the police to arrest and prosecute thousands; not to be innovative with community’s problems. There were more than 41,000 arrests.
D. No evid that the ord reduced crime.
E. Ord impermissibly leaves enforcement to the unconstrained predilections of the police
(1) Ord gives PO an unfettered discretion to decide that person doesn’t have an apparent purpose and is therefore loitering.
a. The discretion is subjective and standardless
F. Ord applies not only to gang members but to people who are deemed to be loitering with gang members.
G. Ord gives PO discretion to decide that person failed to “move on”
(1) How far is one to move?
(2) For how long?
H. Ord does not explicitly say what exactly is prohibited.
I. Argument that minority community wants this law is wrong
(1) Minority community does not speak with one voice. There is substantial opposition to this law within minority community
(2) Once members of minority group attain a degree of political power, it does not mean that they can’t discriminate against their own community.
J. This is contrary to community policing – which is to strengthen relationships between police and community residents and to use innovative, flexible solutions to community problems
K. The sheer numbers of arrest show that there is contempt for police and not a partnership between police and community.
III. Chicago v Morales, 527 US 41 (1999) - Chicago enacted an ordinance, which prohibited criminal street gang members from loitering in any public place. Supreme Ct struck down the ord because it violated the due process clause of 14th Amendment. If PO observes a person who he reasonably believes to be a gang member loitering in a public place with one or more people, PO can order them to disperse. The ord tries to limit officer’s discretion by confining arrest authority to designated officers, estab detailed criteria for defining street gangs and providing for designated but publicly undisclosed enforcement areas. Ord requires 4 predicates: (1) PO must reasonably belive that at least is a gang member, (2) person must be loitering with no apparent purpose, (3) Po must order them to leave the area, (4) person must disobey the order. Dt commanders designated areas in which this would take place,
A. Old Ordinance
(1) Balance between crime control and due process values
(2) Lots of ordinances give PO discretion
a. PO may want guidance of how far def can go before PO need to arrest them.
(3) Had vague ordinance with detailed general order (p4-7- HO)
a. The GO will help from the PO’s standpoint but not from the public’s standpoint.
b. However, the general order has to be passed by Police Board, which is made up by civilians
(4) Problems on ways to enforce ordinance are problems of discretion
(5) Original Ordinance
a. NO apparent purpose
b. Designation of areas
(6) General Order
a. Identification of gang members
b. Pick areas
c. Limits PO who can arrest
d. Aggregate amount of discretion is limited here. However, a particular PO has lots of discretion
e. Has structural methods of limiting discretion
f. Unlike disorderly conduct – where any PO can enforce the law anywhere and against anyone.
B. Ct – ord was unconstitutionally vague and did not meet the fair notice requirement because it did not provide adeq notice of what was prohibited conduct.
C. Ord also violated the req that a legislature estab minimal guidelines to govern law enforcement.
D. Justice Stevens
(1) Issue – Whether IL SC correctly held that ord violates Due Process Clause of 14th Amendment.
(2) City Council found that gang activity was responsible for city’s rising murder rate and violence.
(3) Ord’s broad sweep violates the req that a legislature estab minimal guidelines to govern law enforcement
a. No apparent purpose stnd is subjective because its application depends on whether some purpose is apparent to PO
(4) Ord encompasses harmless behavior
(5) Gives PO too much discretion in determining what activities are loitering.
(6) The three features that limit officer’s discretion is insufficient.
a. Not applied to one moving along or who has apparent purpose
b. No arrest if indiv follows dispersal order
c. Officer must reasonably believe that one of loiterers is a gang member.
(7) City believes that ord resulted in decline in gang-related homicides.
(8) The ord is unconstitutionally vague.
(9) This law does not have a substantial impact on conduct protected by 1st A to render it uncons (overbreadth doctrine). However, US recognizes the freedom to loiter for innocent purposes protected by the Due Process of 14th Amendment