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Criminal Procedure for the Criminal Justice Professional
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Criminal Procedure for the
Criminal Justice Professional
10e
Australia • Brazil • Japan • Korea • Mexico
Singapore • Spain • United Kingdom • United States
John N. Ferdico
Member of the Maine Bar, Former Assistant Attorney General and
Director of Law Enforcement Education for the State of Maine
Henry F. Fradella, J.D., Ph.D.
California State University, Long Beach, Member of the State Bar
of Arizona
Christopher D. Totten, J.D., LL.M.
The College of New Jersey
Criminal Procedure for the
Criminal Justice Professional,
Tenth Edition
John N. Ferdico
Henry F. Fradella
Christopher D. Totten
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Carolyn Henderson Meier
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1 2 3 4 5 6 7 12 11 10 09 08
For John R. Hepburn, Ph.D.
for his guidance, mentorship, and friendship—H.F.F.
To my parents, Douglas and Rosemarie, for instilling in me the
importance of education; to my wife, Miriam, for showing me what
it means to work hard (and for putting up with me as I toiled away
at this book); and to Miriam Gomez for all of her
words of wisdom—C.D.T.
iv
John N. Ferdico holds a J.D. from Northwestern University School of Law and a B.A. in
Sociology from Dartmouth College. He is a former Assistant Attorney General and Director
of Law Enforcement Education for the State of Maine. Other books he has published are
Ferdico’s Criminal Law and Justice Dictionary the Maine Law Enforcement Officer’s Manual.
Ferdico currently writes and runs a legal publishing company in Bowdoinham, Maine.
Christopher D. Totten has an A.B. from Princeton University, and a J.D. and LL.M.
(Masters in Law) from Georgetown University Law Center. He is a member of the State Bar
of Maryland, and has worked as an attorney and client advocate at a number of law firms.
He is an assistant professor of Criminology at The College of New Jersey (TCNJ), where he
acts as the faculty advisor for the Law and Society concentration and teaches numerous law
courses. Prior to arriving at TCNJ, Professor Totten was a lecturer of law at West Virginia
University College of Law. He has published in key journals such as the Journal of Criminal
Law and Criminology and the Berkeley Journal of International Law.
Henry F. Fradella is a Professor of Law and Criminal Justice Studies at California State
University, Long Beach, where he also chairs the Department of Criminal Justice and serves
as a pre-law advisor. He earned a bachelor of arts in psychology from Clark University,
both a master’s in forensic science and a law degree (juris doctorate) from The George
Washington University, and a Ph.D. in interdisciplinary justice studies from Arizona State
University.
Dr. Fradella’s area of specialization is the social scientific study of courts and law. This
includes research and teaching on the historical development of substantive, procedural,
and evidentiary law (including courtroom acceptability and juror understanding of forensic and social scientific evidence, especially forensic psychological/psychiatric testimony);
evaluation of law’s effects on human behavior (including compliance and deterrence); the
dynamics of legal decision making (including the roles of politics, discretion, morality, and
popular culture); and the nature, sources, and consequences of variations and changes in
legal institutions or processes (including law and social change). He teaches a variety of
courses, including forensic psychology, criminal law, criminal procedure, courts and judicial
processes, evidence, and several specialized forensic science courses.
In addition to having published several dozen articles, Dr. Fradella is also the author of
three other books, including two published by Wadsworth Cengage Learning: Key Cases,
Comments, and Questions on Substantive Criminal Law, and Forensic Psychology: The Use
of Behavioral Science in Civil and Criminal Justice. Dr. Fradella is a past guest editor of the
Journal of Contemporary Criminal Justice, and is currently the Legal Literature editor for
West’s Criminal Law Bulletin.
About the Authors
Brief Contents
PART I Framework for the Study of Criminal
Procedure 2
Chapter 1 Individual Rights Under the United States
Constitution 2
Chapter 2 Criminal Courts, Pretrial Processes, and Trials 52
Chapter 3 Basic Underlying Concepts: The Exclusionary Rule,
Privacy, Probable Cause, and Reasonableness 116
PART II Search Warrants, Arrests, Stops,
and Frisks 182
Chapter 4 Criminal Investigatory Search Warrants 182
Chapter 5 Administrative Searches, Special Needs Searches,
and Electronic Surveillance 246
Chapter 6 Arrest 304
Chapter 7 Stops and Frisks 360
PART III Exceptions to the Search Warrant
Requirement 440
Chapter 8 Searches Incident to Arrest and Protective
Sweeps 440
Chapter 9 Consent Searches 482
Chapter 10 The Plain View Doctrine 530
Chapter 11 Search and Seizure of Vehicles and Containers 578
Chapter 12 Open Fields and Abandoned Property 628
PART IV Criminal Procedure and the Fifth and Sixth
Amendments 674
Chapter 13 Interrogations, Admissions, and Confessions 674
Chapter 14 Pretrial Visual Identification Procedures 746
v
Contents
Preface xv
PART I Framework for the Study of Criminal
Procedure 2
Chapter 1 Individual Rights Under the United States
Constitution 2
CRIMINAL PROCEDURE AS THE BALANCE BETWEEN DUE PROCESS
AND CRIME CONTROL 4
The Need for Balance 4
Shifting the Balance Over Time 4
A BRIEF HISTORY OF THE U.S. CONSTITUTION 7
The Law of England 7
Drafting a New Constitution 7
The Original Constitution 9
The Bill of Rights 11
INDIVIDUAL RIGHTS IN THE ORIGINAL CONSTITUTION 15
Habeas Corpus 15
Bills of Attainder 16
Ex Post Facto Laws 16
Trial Rights 16
Conviction for Treason 17
INDIVIDUAL RIGHTS IN THE BILL OF RIGHTS 17
Amendment I 17
Amendment II 26
Amendment III 27
Amendment IV 27
Amendment V 27
Amendment VI 32
Amendment VII 38
Amendment VIII 38
Amendment IX 42
Amendment X 43
vi
CONTENTS vii
LATER AMENDMENTS DEALING WITH INDIVIDUAL RIGHTS
AND LIBERTIES 43
Amendment XIII 43
Amendment XIV 44
Amendments Protecting Voting Rights 47
Amendment XXVI 49
Amendment XXIV 49
CONCLUSION 49
KEY TERMS 50
REVIEW AND DISCUSSION QUESTIONS 50
Chapter 2 Criminal Courts, Pretrial Processes, and Trials 52
STRUCTURE OF THE U.S. COURT SYSTEM 54
Federalism and Dual Court System 55
Jurisdiction 55
Federal Courts 61
State Courts 63
PRELIMINARY PRETRIAL CRIMINAL PROCEEDINGS 64
Charging 65
Plea Bargaining 80
Preparing for Trial 80
TRIAL 86
Trial by Jury 86
Bench Trials 87
Jury Selection 88
Starting Presumptions 94
Evidence and Burdens of Proof 94
Order of Evidence Presenting at Trial 97
Sentencing 101
Judgment 107
Post-trial Motions 107
Remedies after Conviction 108
SUMMARY 113
KEY TERMS 113
REVIEW AND DISCUSSION QUESTIONS 114
Chapter 3 Basic Underlying Concepts: The Exclusionary Rule,
Privacy, Probable Cause, and Reasonableness 116
THE EXCLUSIONARY RULE 118
Federal–State Conflict 119
Alternatives to the Exclusionary Rule 122
Criticism of the Exclusionary Rule 124
Fruit of the Poisonous Tree Doctrine 127
viii CONTENTS
Exception to the Fruit of the Poisonous Tree Doctrine 128
The Good-Faith Exception to the Exclusionary Rule 134
Standing to Assert an Exclusionary Rule Claim 136
PRIVACY 140
The Old Property Rights Approach 141
The Reasonable Expectation of Privacy Approach 141
PROBABLE CAUSE 145
Defining Probable Cause 146
Preference for Warrants 147
Methods of Establishing Probable Cause 148
REASONABLENESS 174
SUMMARY 177
KEY TERMS 177
REVIEW AND DISCUSSION QUESTIONS 178
APPLICATIONS OF THE LAW IN REAL CASES 179
PART II Search Warrants, Arrests, Stops,
and Frisks 182
Chapter 4 Criminal Investigatory Search Warrants 182
APPLYING FOR SEARCH WARRANTS 185
Who May Issue Search Warrants 186
Grounds for Issuing Search Warrants 187
Anticipatory Search Warrants 206
Content of Search Warrants 208
CONSTITUTIONALLY DEFECTIVE WARRANTS 209
Material Misrepresentations and Omissions 209
Severability of Search Warrants 211
EXECUTING SEARCH WARRANTS 214
Who May Execute a Search Warrant 214
Time Considerations 214
Securing People and Places while a Search Warrant Is Being
Sought 218
Notice Requirements 219
Search and Seizure of Third Parties and Their Property 226
Scope of the Search 231
After a Search Warrant Is Executed 237
SUMMARY 240
KEY TERMS 241
REVIEW AND DISCUSSION QUESTIONS 241
APPLICATIONS OF THE LAW IN REAL CASES 242
CONTENTS ix
Chapter 5 Administrative Searches, Special Needs Searches,
and Electronic Surveillance 246
ADMINISTRATIVE SEARCH WARRANTS 248
Special Warrant Requirements for Administrative
Searches 249
Exceptions to Administrative Warrant Requirements 249
Distinguishing Between Administrative and Criminal
Searches 250
SPECIAL NEEDS SEARCHES 252
Searches of Governmental Employees 253
Governmental Drug Testing 255
Searches of Probationers and Parolees 257
Searches of Elementary and High School Students 260
Searches of College Students 264
Border Searches 267
Other Special Needs Searches 270
ELECTRONIC SURVEILLANCE WARRANTS 272
Early Developments in Electronic Interceptions Law 273
Omnibus Crime Control and Safe Streets Act of 1968 274
Title III and Its Applicability to the States 283
Suppression of Illegally Obtained Interceptions 284
Exemptions from Title III 295
Foreign Intelligence Surveillance Act 291
SUMMARY 297
KEY TERMS 299
REVIEW AND DISCUSSION QUESTIONS 299
APPLICATIONS OF THE LAW IN REAL CASES 300
Chapter 6 Arrest 304
TYPES OF ARRESTS 306
Formal Arrest 306
Seizures Tantamount to Arrest 310
AUTHORITY TO ARREST 312
Arrests Pursuant to a Warrant 312
Warrantless Arrests 315
Citizen’s Arrests 319
MAKING AN ARREST 321
Provisions for All Arrests 321
Additional Procedures for Executing an Arrest Warrant 324
Place of Arrest 332
Use of Force 333
AFTER MAKING AN ARREST 345
Booking 346
Initial Appearance 346
Safety Considerations 348
x CONTENTS
EFFECT OF AN ILLEGAL ARREST 351
Effect on Jurisdiction 352
SUMMARY 353
KEY TERMS 355
REVIEW AND DISCUSSION QUESTIONS 355
APPLICATIONS OF THE LAW IN REAL CASES 356
Chapter 7 Stops and Frisks 360
THE FOUNDATIONS FOR STOPS AND FRISKS 362
History 362
The Foundational Case 363
The Reasonableness Standard 364
STOPS 366
Differentiating Stops as Seizures from Non-Seizures 366
Authority to Stop 373
Permissible Scope of a Stop 386
FRISKS 398
Limited Authority to Frisk 398
Scope of a Frisk 399
SPECIFIC CIRCUMSTANCES JUSTIFYING STOPS AND FRISKS 403
Behavioral Cues 403
Possible Evidentiary Cues 410
Detentions of Containers and Other Property 416
Traffic Stops and Roadblocks 419
Racial Profiling 424
Detentions, the USA PATRIOT Act, and the War
on Terror 430
The Geneva Conventions 430
SUMMARY 433
KEY TERMS 435
REVIEW AND DISCUSSION QUESTIONS 435
APPLICATIONS OF THE LAW IN REAL CASES 436
PART III Exceptions to the Search Warrant
Requirement 440
Chapter 8 Searches Incident to Arrest and Protective
Sweeps 440
SEARCHES OF PEOPLE AND AREAS INCIDENT TO ARREST 442
Chimel v. California 442
Protective Sweeps 443
CONTENTS xi
REQUIREMENTS FOR A VALID SEARCH INCIDENT TO ARREST 448
Lawful, Custodial Arrest 448
Contemporaneousness 452
PERMISSIBLE SCOPE OF A SEARCH INCIDENT TO A LAWFUL
ARREST 455
Full Search of the Arrestee’s Body 458
Containers Proximate to Arrestee 462
Search of Area into Which the Arrestee Might Reach 464
STATE DEPARTURES FROM THE RULE ALLOWING A “FULL SEARCH”
INCIDENT TO LAWFUL CUSTODIAL ARREST 466
MOTOR VEHICLE SEARCHES INCIDENT TO ARREST 467
SEARCHES OF THE ARRESTEE’S COMPANIONS 470
RELATED ISSUES 473
Who May Conduct Searches Incident to Arrest 473
Use of Force 473
Limited, Emergency Search Incident to Detention 474
SUMMARY 475
KEY TERMS 476
REVIEW AND DISCUSSION QUESTIONS 476
APPLICATIONS OF THE LAW IN REAL CASES 477
Chapter 9 Consent Searches 482
VOLUNTARINESS OF CONSENT 486
Force, Threats of Force, and Other Threats 486
Submission to a Fraudulent or Mistaken Claim
of Authority 487
Misrepresentation or Deception 491
Arrest or Detention 492
Knowledge of the Right to Refuse Consent 494
Informing Suspects That They Are Free to Go 496
Suspect’s Attitude about the Likelihood of Discovering
Evidence 499
Clearness and Explicitness of Consent 499
Notification of Counsel 500
Individual Factors and Personal Characteristics 500
Voluntary Production of Evidence 502
SCOPE OF CONSENT 504
Consent Merely to Enter 504
Initial Consent vs. Subsequent Consent 504
Area of Search 504
Time of Search 506
Object of Search 507
Revocation of Consent 508
xii CONTENTS
WHO MAY GIVE CONSENT? 510
Third-Party Consent under Actual or Apparent Authority 510
Specific Types of Third-Party Consent 512
SUMMARY 523
KEY TERMS 534
REVIEW AND DISCUSSION QUESTIONS 524
APPLICATIONS OF THE LAW IN REAL CASES 525
Chapter 10 The Plain View Doctrine 530
REQUIREMENTS OF THE PLAIN VIEW DOCTRINE 533
Valid Justifications for Intrusions into a Zone of Privacy 534
Probable Cause to Believe That the Observed Object Is
Incriminating in Character 547
MECHANICAL OR ELECTRICAL AIDS TO DETERMINE PROBABLE CAUSE
FOR PLAIN VIEW SEARCHES AND SEIZURES 554
THE DISCOVERY OF THE ITEM OF EVIDENCE BY AN OFFICER NEED NOT
BE INADVERTENT 564
EXTENSION OF PLAIN VIEW TO OTHER SENSES 566
Plain Touch or Plain Feel 566
Plain Smell 568
Plain Hearing 570
SUMMARY 570
KEY TERMS 571
REVIEW AND DISCUSSION QUESTIONS 572
APPLICATIONS OF THE LAW IN REAL CASES 572
Chapter 11 Search and Seizure of Vehicles and Containers 578
THE CARROLL DOCTRINE 580
Rationale for the Automobile Exception 580
Requirements of the Automobile Exception 583
Scope of a Vehicle Search under the Automobile
Exception 592
IMPOUNDMENT AND INVENTORY SEARCHES 598
Impoundment 598
Inventory Searches 603
The “Standard Procedures” Requirement for Inventory
Searches 605
Permissible Scope of Inventory Searches 607
Time Limitations for Inventory Searches 610
Inventory Searches and the Plain View Doctrine 611
CONTENTS xiii
STANDING FOR OBJECTING TO VEHICLE SEARCHES 613
OTHER ISSUES RELATED TO VEHICLE SEARCHES 615
Tracking Vehicles Using Electronic Devices 615
Vehicle Searches by Dogs 618
SUMMARY 620
KEY TERMS 621
REVIEW AND DISCUSSION QUESTIONS 621
APPLICATIONS OF THE LAW IN REAL CASES 622
Chapter 12 Open Fields and Abandoned Property 628
OPEN FIELDS 630
Determining Curtilage 631
Plain View, Open Fields, and Observations into Constitutionally
Protected Areas 642
ABANDONED PROPERTY 652
Intent to Abandon Property 652
SUMMARY 666
KEY TERMS 667
REVIEW AND DISCUSSION QUESTIONS 667
APPLICATIONS OF THE LAW IN REAL CASES 668
PART IV Criminal Procedure and the Fifth and Sixth
Amendments 674
Chapter 13 Interrogations, Admissions, and Confessions 674
THE DUE PROCESS VOLUNTARINESS APPROACH 676
The Short-Lived “Focus Test” of Escobedo v. Illinois 678
Miranda v. Arizona 678
Voluntariness and Due Process after Miranda 681
THE FIFTH AMENDMENT SELF-INCRIMINATION APPROACH: APPLYING
MIRANDA 687
Custody 688
Interrogation 696
Sufficiency of Miranda Warning 711
Waiver of Miranda Rights 714
Effect of Miranda–Edwards in Court 726
INTERROGATION AND THE SIXTH AMENDMENT 729
Attachment of Sixth Amendment Right to Counsel 730
Waiver of Sixth Amendment Right to Counsel 737
xiv CONTENTS
SUMMARY 740
KEY TERMS 741
REVIEW AND DISCUSSION QUESTIONS 741
APPLICATIONS OF THE LAW IN REAL CASES 742
Chapter 14 Pretrial Visual Identification Procedures 746
MISTAKEN IDENTIFICATIONS: THE ROLE OF PERCEPTION AND
MEMORY 748
Perception 749
Memory 750
Estimator Variables Impacting Perception and Memory 752
Systemic Variables Impacting Perception and Memory 757
SIXTH AMENDMENT REQUIREMENTS FOR PRETRIAL
IDENTIFICATIONS 757
The Wade–Gilbert Rule 757
Substitute Counsel 761
Waiver of the Wade–Gilbert Right to Counsel 761
DUE PROCESS AND PRETRIAL IDENTIFICATIONS 763
The Stovall v. Denno Rule 764
Reliability Trumps Stovall 767
EXIGENT CIRCUMSTANCE EXCEPTION 773
GUIDELINES FOR LINEUPS AND PHOTO ARRAY IDENTIFICATION
PROCEDURES 775
EFFECT OF IMPROPER IDENTIFICATION 785
SUMMARY 787
KEY TERMS 787
REVIEW AND DISCUSSION QUESTIONS 788
APPLICATIONS OF THE LAW IN REAL CASES 789
Glossary 794
Select Bibliography 810
Case Index 816
Subject Index 825