Course Number: CRJ 318 Criminal Procedure

1

Syllabus

Course Number: CRJ 318 Criminal Procedure

Facilitator: Thomas N. Davidson, J.D. 317-445-0629. Unless an emergency exists, my preferred method of communication is through email. Visit for helpful information regarding the APA and research.

Course Description

A comprehensive study of the legal procedures affecting criminal investigations. Beginning with an introduction to individual rights under the United States Constitution and the Bill of Rights, the course will thoroughly cover the law of arrest, search and seizure, interrogation, and identification. Basic concepts relating to procedure such as probable cause, the warrant requirement, and exclusion of evidence will be studied. Criminal procedure laws will be examined from the perspective of the investigator, courts, and the accused.

Course Outline

During this course you will work through this carefully sequenced series of Workshops.

1. Workshop One: Reading, Discussions, Research Project – Part I.
2. Workshop Two: Reading, Discussions, Journal, Research Project – Part II.
3. Workshop Three: Reading, Discussions, Journal, Research Project – Part III.
4. Workshop Four: Reading, Discussions, Journal, Research Project – Part IV.
5. Workshop Five: Reading, Discussions, Journal, Research Project Due.

Course Objectives

Upon successful completion of this course you should be able to:

• Discuss the terms and concepts used by criminal justice professionals while investigating, prosecuting, adjudicating, and sentencing criminal defendants;
• Describe the most important aspects of basic procedure concepts;
• Explain the constitutional safeguards provided defendants and restrictions on official state action in the United States;
• Evaluate the impact of case and statutory law on police practices, court processes, and correctional institution management;
• Articulate the differences between morality and legality from a Christian worldview.

Course Structure

This course is based on three key components, in which each student is expected to participate. These components are not to be viewed as separate assignments, but rather as assignments that complement each other in order to provide a more comprehensive understanding of Criminal Procedure.

These components include:

1. Discussions

2.Weekly Journal

3.Research Paper

Individual Research Paper

Select one topic from the list below. Write a five to eight page research paper on your selection using at least three sources. Must be in APA 6th Edition format.

Topics (remember – these are within the context of Criminal Procedure)

• Constitutional law, the Supreme Court, and criminal procedure
• The Fourth Amendment: the basic considerations
• The Exclusionary Rule
• The Fourth Amendment: search warrants, probable cause and electronic eavesdropping
• The Fourth Amendment: The plain sight doctrine.
• The Fourth Amendment: The plain smell doctrine.
• The Fourth Amendment: exigency exceptions to the warrant requirement
• The Fourth Amendment: Terry search
• The Fourth Amendment: The Patriot Act
• The Sixth Amendment: the right to assistance of counsel
• The Fifth Amendment: interrogation and the law of confessions.
• The Eight Amendment: the death penalty
• Identification of suspects: lineups and show ups

A topic choice will be due at the end of Workshop 1 (25 points); a brief report on progress of research and a list of resources to be used is due at the end of Workshop 2 (25 points); A thesis statement is due at the end of workshop 3 (25 points); an extensive outline is due at the end of Workshop 4 (25 points); and the final version of the paper is due in Workshop 5 (250 points).

At least two of the three required sources must be from a book, other than the textbook, or article (in other words, only a maximum of two sources may come from a website). Please note that you can find sources through Off Campus Library Services.

Workshop One

Workshop Readings

Read chapters one through three of Criminal Procedure for the Criminal Justice Professional.

Discussion: Fifth Amendment

Would the Fifth Amendment Privilege against self-incrimination prohibit the government from any of the following: requiring all participants in a lineup to speak certain words; requiring a person to produce income tax records; threatening a person with a reduction in pay in his government job if he does not make incriminating testimonial admissions about a matter not related to his job? Why?

Do you believe the right to remain silent is a positive or negative? Why? Why do you think the Founding Fathers felt there was a need for this protection?

Discussion: The Exclusionary Rule

After considering the arguments in support of the Exclusionary Rule and in support of its abolishment, (pp. 118-127), which do you believe is the most persuasive? Why?

Do the exceptions to the Exclusionary Rule swallow the rule? Do you believe the alternatives to the Exclusionary Rule would better protect individuals from violations of the Fourth Amendment? Why? Do you believe that the alternatives would better serve the needs of society to be free from criminal behavior? Why?

Writing Assignment – Journal

In a two to three page paper, describe the Criminal Court process from the complaint to post conviction remedies. Due Workshop 2. Must be in APA 6th Edition format.

Research Assignment – Part I

Please select and email your facilitator the topic you will be using as the basis for your research paper by the beginning of Workshop 2.

Workshop Two

Workshop Readings

Read chapters four through six of Criminal Procedure for the Criminal Justice Professional.

Discussion: Arrest

What should a police officer due to prevent a routine encounter with a person on the street becoming a seizure? Why is this important? Should a police officer have to worry about this?

Should a police officer be allowed to use deadly force in any situation other then when the other person is armed? Why? Under what conditions should a police officer be allowed to engage in a high speed pursuit? What are the ramifications should high speed pursuits be banned?

Discussion: Probable Cause

Discuss the differences between probable cause to arrest and probable cause to search. Why are there differences?

Turn to pages 241 and 242 of your textbook. Answer questions six and seven. Justify your answers.

Writing Assignment - Journal

Write a 2-3 page journal with your thoughts on the following question:

Should all in custody interrogations be videotaped? Discuss the arguments for and against doing so. Which argument do you think is most persuasive? Why? Due Workshop 3. Must be in APA 6th Edition format.

Research Assignment – Part II

A brief report on your research progress and a list of resources is due at the end of workshop 2.

Workshop Three

Workshop Readings

Read Chapters seven through nine of Criminal Procedure for the Criminal Justice Professional.

Discussion: Scope of Search Incident to Arrest

Discuss circumstances and conditions which affect the scope of the search an officer can make incident to a lawful arrest.

Read the second Legal scenario on page 478. Do you believe the guns should be suppressed? Do you believe only one of the guns should be suppressed? Justify your responses.

Discussion: Profiling

After 9/11, some have argued that airport security should use profiling in determining whether to search a passenger. Please provide the arguments for and against profiling. Which do you find more persuasive? Why?

Research Assignment – Part III

A thesis paragraph is due by the end of workshop 3.

Writing Assignment - Journal

Write a 2-3 page journal with your thoughts on the following question:

Some police departments instruct their officers to routinely ask for consent to search a car upon any traffic stop. Some police officers adopt this practice on their own. The Indiana Appellate Courts have not made a ruling on this, but have made it clear that they think asking for consent should not be done routinely. In other words, when the appropriate case gets before it, the Indiana Appellate Courts will likely establish guidelines on when a police officer can ask for consent to search a vehicle. You have temporarily been appointed to the Indiana Supreme Court. You have a case before you in which an eighteen year old (Tom Red) was pulled over for speeding. As the officer (Officer Green) was handing Red the ticket, Green asked Red for permission to search the car. Red without hesitation consented by saying, “Yeah, sure, go ahead and search it.” Officer Green found a small quantity of cocaine in the trunk and promptly arrested Red for possession of cocaine. Prior to trial, Red’s attorney filed a Motion to Suppress. At the suppression hearing, Officer Green freely admitted that he had no reason to ask for permission to search Red’s car. Green only asked because it was his habit to do so. The trial court denied the motion to suppress the evidence and Red was found guilty after trial. Now, on appeal, should his conviction be overturned or upheld? (In other words, is it constitutional for a police officer to routinely ask for consent to search a car during a traffic stop?) Whatever is your belief, please write a two to three page opinion for the court explaining and supporting your position and discounting the opposite view. Due Workshop 4. Must be in APA 6th Edition format.

Workshop Four

Workshop Readings

Read Chapters ten through twelve of Criminal Procedure for the Criminal Justice Professional.

Discussion: Search of Vehicles

On page 624, read Legal Scenario 4. Should the defendant’s motion to suppress be granted? Why or why not?

Discussion: Plain View Doctrine

Why do we have a plain view doctrine? Is the plain view doctrine an exception to the warrant requirement? Why or why not? A police officer suspects that a person is growing marijuana in his corn field. He rents a helicopter to circumvent the fencing around the field. While hovering over the field, the officer sees marijuana plants. Should this be allowed by the plain view doctrine? Why or why not? Under the same scenario, would the fact that the Federal Government had banned air traffic over that farm change your analysis? Why or why not? Would it change your analysis if the air space over the farm was open, but the police officer had to fly through banned air space to get to the farm? Why or why not?

An officer is walking his normal beat. As he is walking and exchanging pleasantries with all those he passes, he comes to a bus terminal as a bus arrives from Texas. He strikes up a conversation with a teenager who is nearby and is riding a skateboard. As the passengers are getting off of the bus, one seems quite nervous, but continues to hang around the terminal. Within a few minutes, all luggage have been claimed except for one suit case. The passengers are all leaving the area. The officer walks over to the sole bag that is left and is immediately confronted with a strong odor of marijuana. Before doing anything else, he asks the nervous passenger if the bag belongs to him. The passenger timidly says, “Yes.” Based on the plain smell doctrine, what can the police officer now do? Do you agree? Should he be able to do more or less? Why?

Research Assignment – Part IV

An extensive outline of your paper is due by the end of workshop 4.

Writing Assignment - Journal

Write a 2-3 page journal with your thoughts on the following question:

You again are a temporary member of the Indiana Supreme Court. You are reviewing the following case: Tom Red is again in trouble. He was speeding again and was pulled over. This time, Officer Green, who recognized him from their first encounter, knew that a warrant had been issued for Red’s arrest for failing to appear for a court hearing. Therefore, Officer Green placed Red under arrest. Since there was no one with Red, Officer Green had Red’s car impounded. Once at the impound, other officers began an inventory search of the car. The officers searching inside the car located a handgun in the glove compartment. When officers checked the serial number of the gun, they learned that it had been stolen in a burglary. Red was placed under arrest for Burglary and Theft. During the pretrial proceedings, Red’s attorney received a copy of the inventory list. It was quite apparent that once the officers found the gun, the inventorying of the contents of the car stopped. Red’s attorney filed a motion to suppress the gun because officers had used the occasion of the inventory search to conduct a search for contraband. The trail court denied the motion and Red was convicted. Now on appeal, the Indiana Supreme Court will determine his fate. How would you rule? Why? Write the opinion for the Court. Due Workshop 5. Must be in APA 6th Edition format.

Workshop Five

Workshop Readings

Read chapters thirteen and fourteen of Criminal Procedure for the Criminal Justice Professional.

Discussion: Interrogation

Turn to page 744 of the textbook and read Legal Scenario 5. Would you suppress the statements? Why or why not? Support your answer.

Discussion: Lineups

Turn to page 781 of the textbook and follow the directions in Discussion Point.

Research Assignment – Part V

Your completed research paper is due by the end of this workshop.

Discussion Topics

Right to Counsel

The Sixth Amendment to the US Constitution guarantees and accused’s right to counsel at and state of the prosecution, formal or informal, court or out, where counsel’s absence might derogate from the accused’s right to a fair trial. See Jones v. State, 655 N.E.2d 49 (Ind. 1995). The right to counsel does not apply to perfunctory, administrative procedures such as taking of handwriting exemplars or fingerprints. See Gille v. State, 465 N.E.2d 1380 (Ind. 1984) & White v. State, 699 N.E.2d 630 (Ind. 1998). The right to counsel does not attach until adversary judicial proceedings against the suspect have been initiated. An arrest alone is not enough to trigger the right to counsel. See Brewer v. Williams, 430 U.S. 387 (1977) & Michiganv. Jackson, 476 U.S. 625 (1986).

Miranda

Do the police have to give Miranda warnings every time they question a suspect? Do police have to tell suspects that they are being recorded? If the police fail to give Miranda rights to a suspect, does that automatically invalidate the arrest?

The Miranda warnings are only required during custodial interrogation (under arrest and in custody). See Miranda v. Arizona, 384 U.S. 436 (1966). While based on the Fifth Amendment right not to compel one to incriminate oneself and the Fourteenth Amendment right of due process (to be treated fairly) no where in the US Constitution does it say that when the police arrest and interrogate someone they must pull out a little yellow card and start reading a suspect his or her rights. It is a court made rule. The rationale is that to ensure fairness and that people understand their right against self incrimination under the stress of being confronted and interrogated by the police, that the police must advise them of their rights. The basic form of the required warnings are:

• You have the right to remain silent.
• Anything you say can be used against you.
• You have a right to have a lawyer present now.
• If you do not have the money to retain a lawyer, you have the right to have one appointed for you by the court.

Many people believe that Miranda is required anytime a person is arrested and if the warnings are not given the arrest is invalid. This is just not the case. Remember, Miranda is only required for custodial interrogation. If there is no interrogation of the arrestee, then no warnings are required. They warnings only apply to incriminating statements. A question such as “What is your name and address” is not incriminating and accordingly the Miranda warnings are not required. Failure to Mirandize someone when necessary does not automatically invalidate the arrest; it will however, likely keep any incriminating statements made by the arrestee in response to police questions inadmissible; thus, making the case against the suspect harder to prove. Any statement given freely and voluntarily without any compelling influence is admissible evidence. So, if a suspect volunteers information, not in response to police questioning, even if under arrest, Miranda is not required. See Miranda v. Arizona, 384 U.S. 436 (1966).

Arrestees may waive their right to counsel and answer questions and any admissions or confessions are admissible so long as the waiver was free and voluntary and not induced by threats, promises, or improper influence. See Nacoff v. State, 267 N.E.2d 165 (1971).

Since there are two parts to the requirement: arrest and interrogation, the question must be asked when is a person under arrest? Do the police have to utter the magic words: “You are under arrest” for Miranda to apply? No. A person can be under arrest even if the police never state that they are under arrest. When determining whether a person was in custody or deprived of his freedom, to determine whether were required, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. See Luna v. State, 788 N.E.2d 832. A person who has been taken into custody or otherwise deprived of his freedom of action in any significant way must, before being subjected to interrogation by law enforcement officers, be advised of his rights to remain silent and to the presence of an attorney and be warned that any statement he makes may be used as evidence against him. See McIntosh v. State, 829 N.E.2d 531. However, just because a person is questioned by police at a police station does not necessarily mean that the person is under arrest and therefore Miranda applies. To determine if someone is in custody for purposes of Miranda, the Court of Appeals applies an objective test considering if a reasonable person under the same circumstances would believe themselves to be under arrest or not free to resist entreaties of police. McIntosh v. State, 829 N.E.2d 531. In Kelley v. State, 825 N.E.2d 420, the defendant, eventually charged with a drug possession offense, was found not to be in custody at time of police questioning, and thus officer was not required to give the defendant Miranda warnings before questioning him regarding a shooting incident; defendant agreed to accompany officers to station to make a statement following a shooting incident, defendant agreed to remain at police station in case the officers had further questions, defendant waited in police parking lot and talked with his family, and defendant was not a suspect in any offense until he told officers about his participation in drug activity.