Procedural Law and the Bill of Rights

Assignment 1: Procedural Law and the Bill of Rights

CRJ325 Criminal Procedure

The United States’ Legal System Sources of Rights

The body of the United States’ (U.S.) legal system includes the federal and state constitutions and case law made of the legal principles expressed in court decisions. First, the U.S. Federal Constitution contains the Bill of Rights which ensures that citizens participate in the federal administration of justice and preserve the sovereign right of a majority of the people to alter or abolish government. In short, the Bill of Rights stands as the high temple of our constitutional order. The Bill of Rights is the first ten amendments to the U.S. Constitution and protects the capability of state governments to examine and prevent federal abuse. State constitutional provisions must be consistent with the provisions of the Federal Constitution, or they may be proclaimed unconstitutional if argued in court (Del Carmen, 2014, p. 21).

Another source of rights and fundamental principles found in the U.S. legal system is case law which is law found in the decisions of the courts rather than in statutes. Case law, also identified as judge-made law, are written decisions that often represent the codification of case law that has become accepted and is practiced in a particular state (Del Carmen, 2014, p. 22). Whenever a court resolves a legal verdict, that judicial decision becomes binding on the court and the lower courts when the same dispute occurs again in the future, known as a precedent. The principle that inferior court will defer when the issue is raised in the future is known as the doctrine of stare decisis. In conclusion, the foundations of the U.S. legal system have an iconic cultural and political history. Today, the law is based on the sovereignty of federal and state constitutions and legislation enacted according to those laws by elected representatives. Thus, we have created a legal system ruled by the majority but protective of the rights of the minority.

Arrest and Arraignment

The criminal justice process starts when a criminal act comes to the attention of law enforcement. The criminal procedure can begin when the process of investigation and detection leads to the identification of a suspect and charging that individual with a criminal offense. Once the determination of wrongdoing is established, an arrest can be made. Finkelman (2006) states, “An arrest is justified when the police have probable cause that the person arrested has committed a crime” (p. 81). An arrest can include both a warrant or an arrest without a warrant. Obtaining an arrest warrant from a judge includes showing probable cause that a named person is suspected of committing a felony. Once a warrant is issued, law enforcement may apprehend the suspect. Del Carmen (2014) expresses that, “An arrest without a warrant usually happens when a crime is committed in the presence of a police officer” (p. 34).

Next, an arraignment is an initial appearance before a court of jurisdiction to answer for a felony charge after an arrest. This initial appearance is considered an essential component of the due process of law of the Sixth Amendment to preserve the offender’s right to be informed of the nature and cause of a criminal accusation. In fact, the Miranda warnings, which originated in a U.S. Supreme Court ruling, Miranda v. Arizona (1966), set forth warnings, such as self-incrimination, and rights of the accused. Law enforcement may issue Miranda warnings during an arrest into police custody and before questioning. At the initial appearance before a magistrate or judge, the defendant will be informed of his or her rights, which may also include the Miranda warnings.

The Fourth Amendment

Within the U.S. Constitution, the Fourth Amendment is among the first ten amendments, known as the Bill of Rights. The Fourth Amendment includes the meaning of search and seizure, distinguishes the exclusionary rule, and demonstrates the expectation of privacy. The Fourth Amendment is frequently associated with the belief that a man’s home is his castle. Indeed, to avoid constitutional problems, law enforcement must have a warrant signed by a magistrate that is supported by probable cause, and that describes the person, place, or object to be searched. Illegally obtained evidence, a violation of the Fourth Amendment, is excluded from being admitted at trial. This corrective action is called the exclusionary rule. Unquestionably, the essence of the Fourth Amendment ensures that individuals possess a level of privacy concerning invasive actions by government officials. In a free and democratic society, the Fourth Amendment will continue to provide a rich history, understanding, and appreciation for the U.S. Constitution and individual rights.

Probable Cause and Reasonable Suspicion

Del Carmen (2014) states that, “The Court measures probable cause by the test of reasonableness, a necessary subjective standard that falls between mere suspicion and certainty” (p. 67). A warrant issued by a judge or warrantless arrests established by law enforcement through the officer’s knowledge and information determines probable cause. The Fourth Amendment checks government’s authority to intrude on personal privacy and security by requiring that search and seizures be supported by a display of probable cause (Finkelman, 2006, p. 82). But, when probable cause is not established, law enforcement can have a level of proof as a valid motive to act legally. As a level of proof, the concept of reasonable suspicion is determined by the officer’s personal observation that criminal activity is occurring, often in stop-and-frisk situations.

Probable cause and reasonable suspicion are similar because both are centered on the totality of the circumstances. Reasonable suspicion is based on considering the particular factors involved in a given situation. Simultaneously, reasonable suspicion can quickly transition to probable cause. Probable cause is all the layers of information of what is observed and the known facts of an incident.

Exclusionary Rule: Knock-and–Announce, Searches by Private Persons

Del Carmen (2014) defines the exclusionary rule as evidence that is acquired in violation of the Fourth Amendment’s unreasonable search and seizure is not admissible in a criminal prosecution to prove guilt (p. 90). The power that law enforcement possesses to conduct a search is immense, but violations of the knock-and-announce and searches by private persons are situations in which the exclusionary rule does not apply. The knock-and-announce rule requires that police who are executing a warrant provide the occupants an opportunity to admit the officers and comply with their demands before using force to gain entry. In short, the discovery of evidence would be found legally whether the police gained entry by force or if the occupants admitted them. In searches by private persons, information gathered with the help of private individuals may be used as evidence in criminal proceedings with restrictions that law enforcement did not contribute or encourage the search (Del Carmen, 2014, p. 109). If a search of a private person turns up evidence of a crime, the exclusionary rule may not apply, and the defendant will be unable to have that evidence suppressed.

The Use of Force and the One Plus One Theory

Bruce Siddle, the creator of the Pressure Point Control Tactics (PPCT) program, pioneered the research of survival stress and how it influences the performance of law enforcement officers (Siddle, 1988). In the PPCT program, taught at Police Academies, Siddle advocates the One Plus One theory in applying or using an appropriate level of force. The One Plus One theory, founded on the concept of reasonableness and the totality of the circumstances, officers learn that they can morally, legally and tactically use one level of force or control higher than that level of resistance displayed or utilized by the suspect (Siddle, 1988). This continuum is based on the review of case law and Bruce Siddle’s conceptualization. One such case law, Plakas v. Drinski (1994), advocates that officers have no constitutional duty to use lesser force when deadly force is authorized. Without a doubt, levels of resistance need to be controlled by different techniques depending upon the amount of resistance displayed by the offender.

References

Finkelman, P. (2006). Encyclopedia of American civil liberties. New York, NY: Routledge.

• Del Carmen, R. V. (2014). Criminal Procedure: Law and Practice (9th ed.). Mason, OH: Cengage.

Miranda v. Arizona, 384 U.S. 436 (1966)

Plakas v. Drinski, 19 F. 3d 1143 (7th Cir. 1994)

Siddle, B. K. (1988). Pressure point control tactics: Student manual. Millstadt, IL: PPCT Management Systems.