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CRIMINAL PROCEDURE 3rd Edition Criminal Procedure: Theory and Practice, 3rd Edition, presents a broad overview of criminal procedure as well as a detailed analysis of specific areas of the law that require specialized consideration. The 3rd Edition provides students with an updated, comprehensive text written in reader-f riendly language to introduce them to the field of criminal procedure. Significant edited legal cases are integrated into each chapter, and comments, notes, and questions accompany each case. This edition features a new chapter covering searches of Internet-c onnected devices and electronic devices that may store personally connected data. The chapter “The Internet of Things” introduces search and seizure concepts related to electronics. In addition, a section at the conclusion of each chapter, “How Would You Decide,” allows readers to examine the facts of a real case that contain some of the important concepts form each chapter. The reader can compare the individual’s resolution of the case with the way the actual court determined the issue. Using a balanced text/case format, the author provides an overview of general criminal procedure as well as guidance for law enforcement actions that honor constitutional protections and comport with the rule of law. Instructor support material prepared by the author is available on our website, including lecture slides and instructor’s manual with test bank, as well as online updates on new case law in the area of criminal procedure. This textbook is ideal for all criminal justice programs in both four-y ear and two- year schools, especially those preparing future police officers, as well as a reference for law students and attorneys. Jefferson L. Ingram holds the rank of Professor in the Department of Political Science at the University of Dayton, teaches political science courses, and also teaches some courses for the Department of Criminal Justice and Security Studies. He has a B.S. in secondary education, an M.A. in American history, and a Juris Doctor degree. He is a member of the Ohio Bar, the Florida Bar, the Bar of the federal courts for the Southern District of Ohio, and the Bar of the Supreme Court of the United States. Ingram is the author of many books on criminal justice and U.S. law, including Constitutional Law for Criminal Justice, 15th Edition, and Criminal Evidence, 14th Edition. “I appreciate the author providing a historical context for not only the Bill of Rights but the distinction between federal and state applications of those rights, particularly the Fourth, Fifth, Sixth, and Fourteenth Amendments. I find that if my students understand the rationale for the establishment of rights, the ‘why,’ their understanding of all that follows is enhanced.” Chris Carmean, JD, Program Director, Law Enforcement & Criminal Justice, Houston Community College & Peace Officer Training Academy CRIMINAL PROCEDURE 3rd Edition Theory and Practice Jefferson L. Ingram Cover image: © Getty Images Third edition published 2022 by Routledge 605 Third Avenue, New York, NY 10158 and by Routledge 4 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2022 Taylor & Francis The right of Jefferson L. Ingram to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. First edition published by Pearson 2004 Second edition published by Pearson 2008 Library of Congress Cataloging- in- Publication Data Names: Ingram, Jefferson, author. Title: Criminal procedure : theory and practice / Jefferson L. Ingram. Description: Third edition. | New York, NY : Routledge, 2022. | Includes bibliographical references and index. Identifiers: LCCN 2021053632 (print) | LCCN 2021053633 (ebook) | ISBN 9780367371722 (hardback) | ISBN 9780367371425 (paperback) | ISBN 9780429352973 (ebook) Subjects: LCSH: Criminal procedure—United States. Classification: LCC KF9619. I544 2022 (print) | LCC KF9619 (ebook) | DDC 345.73/05—dc23/eng/20220208 LC record available at https://lccn.loc.gov/2021053632 LC ebook record available at https://lccn.loc.gov/2021053633 ISBN: 978- 0- 367- 37172- 2 (hbk) ISBN: 978- 0- 367- 37142- 5 (pbk) ISBN: 978- 0- 429- 35297- 3 (ebk) DOI: 10.4324/9780429352973 Typeset in Times New Roman by Apex CoVantage, LLC Access the Support Material: www.routledge.com/9780367371425 Contents Preface xiii Chapter 1 Introduction to the Constitutional and Legal Process 1 Chapter Outline PART I Constitutional Introduction 4 1. Constitutional Basis of Rights for Persons Accused of Crime 4 2. Articles of Confederation 5 3. The Constitution: Revision in National Government 6 4. The Constitution: Challenges to Ratification 7 5. The Rationale and Need for the Bill of Rights 8 6. History of the Bill of Rights 9 7. Constitutional Developments: Civil War and Aftermath 10 8. The Selective Incorporation Doctrine: Federalization of Criminal Procedure 12 PART II Overview of State and Federal Court Organization 21 9. An Introduction to the Criminal Justice System 21 10. Organization of Courts, State and Federal: A Dual System 26 PART III Pretrial and Trial Criminal Procedure: An Introduction 30 11. The Initial Steps Toward Prosecution: Pretrial Processes 30 12. Pretrial Motion Hearings: Mandatory and Discretionary 38 13. Jury and Non- Jury Trials 39 14. The Trial Process From Selection of Jurors to Judgment 40 15. Verdicts, Sentencing Process, and Post-T rial Motions 43 v vi Criminal Procedure 16. Appellate Practice 44 17. State and Federal Habeas Corpus 46 18. Summary 46 Chapter 2 Basic Fourth Amendment Principles and the Exclusionary Rule 51 Chapter Outline 1. Introduction to Remedies for Fourth Amendment Violations 54 2. Violation of the Fourth Amendment and the Exclusion of Evidence 55 3. The Fourth Amendment: Implementation Prior to 1914 55 4. The Exclusionary Rule: Enforcing the Fourth Amendment 57 5. Suppression of Illegally Seized Evidence 57 6. Theoretical and Constitutional Basis for the Exclusionary Rule 58 7. Challenge to the Exclusionary Rule: The Silver Platter Doctrine 59 8. Application of the Exclusionary Rule to State Criminal Procedure 59 9. Exclusion of Derivative Evidence 62 10. Major Exceptions to the Exclusionary Rule 67 11. Exclusionary Rule Exception: The Independent Source Rule 67 12. Exclusionary Rule Exception: The Rule of Inevitable Discovery 69 13. Exclusionary Rule Exception: The Doctrine of Attenuation 71 14. Exclusionary Rule Exception: The Good Faith Exception 72 15. Limitations on the Exclusionary Rule: Parole Revocation Hearings 74 16. Limitations on the Exclusionary Rule: Other Contexts 75 17. Alternative Remedies to Fourth Amendment Violations: The Bivens Civil Suit 76 18. Limits to Use of the Exclusionary Rule: The Concept of Standing 78 19. Vicarious Standing Not Permitted 85 20. Summary 86 Chapter 3 The Concept of Stop and Frisk 95 Chapter Outline 1. Introduction to Stop and Frisk 98 2. Stop and Frisk: The Terry Legal Standard 98 3. Facts Indicating Unusual Conduct 103 4. Subject Must Be Aware of Officer’s Status 110 5. Flight Upon Seeing an Officer as Unusual Conduct 110 6. Officer Must Have Reason to Believe That the Person May Be Armed and Dangerous 112 7. Investigation Must Not Dispel the Fear That the Subject May Be Armed and Dangerous 114 8. Frisk May Not Always Allow Additional Search 114 9. Terry Stops Under a Drug Courier Profile 116 10. The Plain Feel Doctrine 120 11. Expansion of Stops Beyond the Genesis of Terry v. Ohio 122 12. Summary 124 Contents vii Chapter 4 Arrest and Seizure of the Person 131 Chapter Outline 1. Probable Cause Arrests: The Legal Standard 134 2. The Concept of Probable Cause for Arrest 135 3. Plain Meaning of the Fourth Amendment 135 4. Probable Cause Defined 135 5. Sources of Probable Cause to Arrest 139 6. Stale Probable Cause 143 7. Arrest Pursuant to a Warrant 144 8. Requirements for Arrest Without a Warrant 147 9. Requirements for Arrests Within the Home 153 10. Requirements for Arrests Within a Third Party’s Home 154 11. Summary 155 Chapter 5 Miranda Principles: Fifth and Sixth Amendment Influences on Police Practice 163 Chapter Outline 1. Introduction to Miranda Warnings 166 2. The Basis for the Warnings 167 3. The Road to Miranda 168 4. The Case of Miranda v. Arizona 169 5. Prerequisites for Miranda Warnings 173 6. Substance of the Warnings 175 7. Delivering the Miranda Warnings 175 8. When Miranda Warnings Are Required: The Triggering Events 176 9. When Interrogation Must Cease 181 10. Necessary Condition for Miranda Warnings: Custody 184 11. Necessary Condition for Miranda Warnings: Interrogation 187 12. Miranda Interrogation: The Functional Equivalent 187 13. Exigent Circumstances Exception to Miranda Interrogation 192 14. Routine Booking Exception to Miranda Interrogation 194 15. Right to Counsel Under Miranda Is Personal to the Arrestee 194 16. Procedure for Waiver of Miranda Protection 195 17. Congressional Challenge to the Miranda Warnings 197 18. Miranda Warnings: Required by the Constitution 198 19. Summary 202 Chapter 6 Obtaining and Using Search Warrants: Practice, Execution, and Return 213 Chapter Outline 1. The Fourth Amendment: Probable Cause to Search 216 2. Specificity of Search; Particularity of Description 221 3. Requirement of a Warrant: Physical Searches 221 4. Requirement of a Warrant: Electronic Eavesdropping 226 viii Criminal Procedure 5. Sources of Probable Cause: The Informant 228 6. Informant Probable Cause: The Totality of the Circumstances Test 230 7. Sources of Probable Cause: Police Officers and Others 233 8. The Affidavit for a Warrant: Written or Electronic 234 9. The Search Warrant: A Court Order 236 10. Fourth Amendment: Knock and Announce Requirement and Permissible Detention of Persons Present 236 11. Scope of Search 241 12. Return of the Warrant 241 13. Stale Probable Cause 243 14. Warrantless Searches: Exceptions to the General Rule 244 15. Summary 245 Chapter 7 Searches and Seizures: Houses, Places, Persons, and Vehicles 255 Chapter Outline 1. Searches of Houses 258 2. Warrant to Search and Arrest Inside the Home 260 3. Modern Technology and Warrantless Home Searches: Thermal Imaging Searches 265 4. Search Incident to Arrest 269 5. Search Incident to Arrest: No Warrant Requirement 271 6. General Scope of the Search Incident to Arrest 271 7. Inventory of Arrestee’s Property 274 8. Traditional Requirements for the Plain View Doctrine 275 9. Inadvertent Discovery: No Longer Required 276 10. Officer Needs to Be Lawfully Present 280 11. The Plain Feel and Plain Smell Doctrine 281 12. Searches Based on Consent 283 13. Stops and Searches of Motor Vehicles 289 14. Vehicle Searches Generally Do Not Require Warrants 290 15. Scope of Motor Vehicle Search 292 16. Limited Vehicle Searches on Less Than Probable Cause 292 17. Vehicle Inventory Searches 294 18. Plain View Doctrine and Motor Vehicle Searches 295 19. Scope of Search of Containers Within Motor Vehicles 296 20. Searches Following Vehicle Forfeitures 302 21. Other Theories of Vehicle Searches and Seizures 303 22. Summary 305 Chapter 8 The Internet of Things: Searches of Computers, Cell Phones, and Other Smart Devices 317 Chapter Outline 1. Introduction: Fourth Amendment and Searches of Electronic Devices 320 2. Personal Computer Searches 324 3. Searches of Cell Phones: Warrant Generally Required 325 Contents ix 4. Cell Phone: Voluntary Consent and Emergency Exceptions 334 5. Searches of Smart Devices 336 6. FitBits and Similar Devices 339 7. Cameras 340 8. Heart Monitors and Pacemakers 343 9. Cloud Storage Concepts: Searches 345 10. Amazon Echo and Similar Internet Smart Devices 348 11. Law Enforcement Use of Vehicle GPS Trackers: Warrant Required 350 12. Use of OnStar Location and Tracking and Comparable Electronics 355 13. Automobile Event Data Recorders: Searches and Warrants 356 14. Summary 362 Chapter 9 Searches of Open Fields and Abandoned Property 373 Chapter Outline 1. Introduction to Open Fields: No Expectation of Privacy 376 2. Genesis of the Open Fields Doctrine: The Hester Case 377 3. The Dunn Case and Refining the Concept of the Curtilage 381 4. Expectation of Privacy and Abandoned Property 386 5. General Proof of Intent to Abandon 389 6. Abandonment of Personal Property 390 7. Abandonment of Motor Vehicles 393 8. Police Misconduct and Abandonment of Personal Property 394 9. Abandonment of Real Property, Land, Home, and Motel 395 10. Summary 396 Chapter 10 Special Needs Searches 405 Chapter Outline 1. Introduction to Administrative, Special Needs, Inventory, School, Airport, and Work Searches 408 2. Administrative Searches: General Principles 411 3. Administrative Searches of Ordinary Businesses and Industries 412 4. Ordinary Commercial Business: Search Warrant Required 413 5. Administrative Searches of Closely Regulated Industries 414 6. Administrative Searches of Homes: Warrant Required 415 7. Inventory Searches: Probable Cause Not Required 423 8. Vehicle Inventory Searches 423 9. Post- Arrest Inventory Searches of Personal Property 427 10. Public School Searches: Based on Fourth Amendment Reasonableness 429 11. Public School Drug Searches: Drug Testing of Athletes and Other Students 431 12. Government Searches in the Government Workplace 437 13. Government- Mandated Private Employer Workplace Searches 439 14. Airport, Subway, and Transportation Searches 445 15. Border Searches: Sovereignty and the Fourth Amendment 448 16. National Security and Anti-T errorism Searches 449 17. Summary 453