Course Correctional Services. Unit III History of Crime and Corrections

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1 Course Correctional Services Unit III History of Crime and Corrections Essential Question What laws govern arrest, search and seizure, and guaranteed due process under law? TEKS (c) (6)(E)(F)(G) Prior Student Learning Historical and philosophical development of criminal law Estimated Time 8 hours Constitutional Law Rationale Constitutional law encompasses many different rights afforded to citizens of this state and country. Many of those same rights govern the correctional system, but only in new criminal proceedings. Students need to understand the constitutional laws regarding arrest, search, and seizure. They also need to understand the rights of individuals under the 5 th, 6 th, and 14 th amendments. Objectives The student will be able to: 1. Execute protocols associated with arrest, search, and seizure, using the statutes set forth by the Fourth Amendment 2. Summarize the rights of an individual being interrogated under the Fifth Amendment 3. Examine trial, jury, and due process rights 4. Define when a person is under arrest, in constructive custody, and under restraint 5. Identify the statutory authority or other authority to effect an arrest or detain another 6. Discuss the advantages of obtaining a search warrant 7. List the major components of search warrant documentation 8. Identify essential components of an affidavit for the issuance of a search warrant 9. Explore situations in which exceptions to obtaining a search warrant exist for conducting limited searches 10. Contrast situations in which a search warrant is not necessary to obtain evidence because there is no expectation of property Engage Do an Internet search for the video Arrested, Texas-Style. Prior to class preview and approve the video. Show the video to the class. Have the students discuss their thoughts about whether or not it truly was an arrest, whether or not it was constitutional, and whether or not it was justified. Review the video again at the end of the lesson to see if students opinions changed. Use the Discussion Rubric for assessment. Key Points I. Fourth Amendment The right of the people to be secure in their persons, houses, papers and effects and against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. A. Levels of knowledge chart 1. 0% No knowledge 1

2 2. 10% Gut feeling 3. 45% Reasonable Suspicion 4. 51% Probable Cause 5. 98% Beyond a Reasonable Doubt B. Probable Cause 1. Likelihood that a crime has occurred and that the suspect is linked to the crime by some means 2. Made of building blocks. The building blocks in and of themselves may not be enough for probable cause. It may take more than one of the building blocks to equal probable cause. a. Flight b. Furtive act or movement c. Hiding d. Attempt to destroy evidence e. Resistance of officers f. Admissions or confessions g. Evasive answers/conflicting stories h. Unreasonable explanations i. Physical evidence (latent/voice prints, hair, handwriting, DNA, guns) j. Identification of the suspect by a witness k. Contraband or weapons in plain view l. Criminal record m. Hearsay information (anonymous tips) n. Unusual or suspicious conduct o. Drug-detecting dogs p. Police radio broadcast C. Arrest a person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by a person having authority to arrest (Criminal Code of Procedure (CCP) 15.22) 1. Elements of arrest a. Intent b. Authority c. Custody (Seizure or detention) d. Understanding of the subject 2. When and how an arrest can occur a. An arrest may be made any time of the day or night (CCP 15.23) b. In making an arrest, all reasonable means are permitted to be used to affect it. No greater force, however, shall be resorted to than is necessary to secure the arrest and detention of the suspect (CCP 15.24) 3. Custody a. Constructive Custody i. Confined, imprisoned, in custody ii. Actual, corporeal and forcible detention of a person iii. Detention within limits b. Restraint i. Control exercised over another 2

3 ii. Certain limits iii. Subject to general authority 4. Authority to arrest without a warrant a. CCP offense within view b. CCP offense within view of a magistrate c. CCP i. Felony offense ii. Breach of peace iii. Disorderly conduct or other chapter 42 offense iv. Public intoxication v. Inchoate offense vi. Protection (assault) vii. Family violence (assault bodily injury) viii. Protective Orders ix. Prevent theft d. CCP felony offense, no time to procure a warrant because the offender is about to escape D. Show of force and authority 1. Temporary Detention a. Reasonable suspicion b. Activity occurring or just occurred c. Person connected to an activity d. Limited time e. Florida v. Royer this U.S. Supreme Court case that ruled an investigative stop can last no longer then necessary to complete the investigation. The scope of the detention must match the justification. 2. Stops a. No fit time/place b. Description of wanted person c. Emotional, frightened, intoxicated d. Running/furtive movements e. Loitering/hanging out/lookout f. Crime scene area g. Terry v. Ohio, U.S. Supreme Court case that ruled that officers may complete a frisk of person s outer clothing for safety. i. Unusual Conduct ii. May be armed and dangerous iii. Protection of self and others iv. Suspicion of crime and weapon to be used v. Careful pat of outer clothing vi. Alone and no backup vii. Emotions or behavior of suspects E. Searches prying into hidden places for that which is concealed; it is not a search to observe that which is open to view 1. 4 th amendment a. Protection against unreasonable searches and seizures b. Protects people, not places c. By definition, a search involves an invasion of an 3

4 expectation of privacy (homes, cars, schools) d. A warrant to search or arrest requires probable cause 2. Search Warrant (CCP 18.01) a. Neutral, detached magistrate b. Probable cause c. Sworn affidavit d. Must include i. Specific offense committed ii. Specific property to be seized iii. Property is at the place to be searched 3. Beyond a search warrant a. Protective sweep look everywhere to make sure there is no one hiding in the building. Any contraband in plain view during the sweep can be charged to the person b. Destruction of evidence if the officers believe that someone is destroying or is about to destroy evidence, they may go into areas not included on the search warrant c. Additional Evidence discovery of more or possible evidence in plain view elsewhere on property d. Hunt for evidence or contraband that, as a result of the initial search, they believe exists in another location on the property 4. Categories of Evidence a. Fruits of a crime items or materials removed from a crime scene: i.e., a TV taken from an electronics store b. Tools of a crime items used in the commission of a crime: i.e., crowbar, screwdriver c. Contraband anything that is illegal to possess or is used in a manner other than intended d. Mere evidence items possessed that are illegal but not known by the person possessing them to be illegal 5. Search warrant exceptions a. Persons b. Vehicles c. Places d. Open fields e. Anything with consent f. Abandoned property g. Inventory h. Plain view 6. Searches with consent a. Can be withdrawn at any time b. Must be given by one with the authority to give consent c. Can limit the scope of the search 7. Searches at school a. Backpack searches b. Locker searches c. Vehicles searches d. Strip searches e. Use of metal detectors 4

5 f. Use of drug dogs g. Consent to search h. To be reasonable a search must be i. Justified ii. Reasonably suspected as a law or school violation iii. Reasonably related to circumstances iv. Conducted in a reasonable manner i. Those with authority to do searches i. Administrators must have reasonable suspicion including tips, past behavior, and student s reaction to questions ii. Police must have probable cause and a law violation 8. Search incident to an arrest a. The arrest must be lawful b. The search area must be within the subject s immediate control c. Immediately following an arrest d. To prohibit destruction of evidence 9. The plain view doctrine Coolidge v. New Hampshire, items in plain view are seizeable and property can be searched if intrusion is lawful, discovery is inadvertent, and it is immediately apparent that the property is contraband a. The initial intrusion must be lawful or in proper position to view the property b. Discovery must be inadvertent c. Must be immediately apparent that items are evidence of a crime, contraband, or subject to seizure 10. Exclusionary Rule (CCP 38.23) a. No evidence shall be admitted into a criminal trial that was obtained in violation of constitutional rights b. Mapp v. Ohio any evidence seized illegally can be excluded from both state and federal trials II. Fifth Amendment A. Grand Jury an indictment must be returned by a Grand Jury B. Double Jeopardy a suspect cannot be tried for the same offense twice 1. Protections a. Against a second prosecution for the same offense after an acquittal b. Against a second prosecution c. Against multiple punishments for the same offense 2. Double Jeopardy is lawful when a. A person is convicted, then appeals to a higher court and the conviction is overturned b. A person is convicted and requests a new trial c. There is a hung jury d. The person can be tried at the federal and the state level for the same crime 5

6 C. Self-Incrimination 1. Brown v. Mississippi the U.S. Supreme Court ruled that evidence from compulsory self-incrimination cannot be used at trial a. Facts there was no evidence other than the confessions which were brutally obtained b. Procedural Problem the confessions were extorted with violence c. Court holding a violation of due process; cannot use evidence obtained from compulsory self-incrimination 2. Examples a. Producing an instrument of the crime b. Admission of a defendant while asserting 4th amendment rights c. Use at trial of a defendant s silence after Miranda d. Requiring the defendant to appear before the Grand Jury that indicted him 3. Miranda v. Arizona the U.S. Supreme Court established rights that must be presented to persons prior to interrogation a. Miranda Warning the right against self-incrimination and the right to attorney representation i. You have the right to remain silent. Anything you say can and will be used against you in a court of law. ii. You have the right to an attorney. If you cannot afford one, one will be appointed to represent you. iii. You have the right to terminate this interview at anytime. III. Sixth Amendment A. Speedy trial Barker v. Wingo, the U.S. Supreme Court refused to adopt a strict time line test, i.e., there is no constitutional requirement to give a defendant a trial within a specified time limit B. Public trial 1. Purpose to guarantee that the defendant will be fairly and not unjustly condemned 2. Rights a. Distrust of secret trials b. The general public may not be indiscriminately excluded from the courtroom c. May be excluded because of misconduct or overcrowding C. Trial by jury 1. Purpose a. Protect against corrupt or overzealous prosecutor b. Protect against a compliant, biased, or eccentric judge 2. Number of Jurors and Verdict a. The 12-person jury is a historical accident b. States may have a jury of less than 12 members c. Federal juries have 6 members d. A unanimous verdict in state court is not required by the 6

7 6th amendment e. A unanimous verdict is only required in federal trials and Texas f. a felony jury must have at least 6 jurors and the verdict must be unanimous g. Impartial jury i. No discrimination because of race, sex, creed, color, religion, or otherwise ii. Systematic exclusion of a certain race is not impartial D. Trial in the state and the district where the crime occurred E. Notice of the nature of the accusation F. Confrontation of opposing witnesses 1. Washington v. Texas a. The defendant wanted the co-defendant, already convicted of the same crime, to testify at trial under Texas statute b. U.S. Supreme Court held that the accused has a fundamental right to present his own witnesses to establish a defense G. Compulsory process for obtaining favorable witnesses 1. Pointer v. Texas the U.S. Supreme Court ruled that confrontation is a fundamental right and denial violates the 14 th amendment s guarantee of due process of law 2. A dying declaration is admissible in court as true and just testimony 3. Stenographic testimony of a witness is acceptable if the witness is dead or out of the court s jurisdiction 4. Must show due diligence through a bona fide actual search for a witness before evidence previously taken can be read at trial H. Assistance of counsel 1. Gideon v. Wainwright a. The U.S. Supreme Court ruled that there is a right to counsel in all federal cases b. The 14th amendment requires states to provide counsel to indigent defendants in all felony cases IV. Fourteenth Amendment A. Procedural Due Process 1. Notice of proceedings 2. Opportunity to prepare for a hearing 3. Opportunity to be heard both in presenting one s claim and in combating the claim of the opponent 4. A fair hearing 5. The hearing to be before an impartial tribunal B. Substantive Due Process 1. There must be a proper purpose of the statute 2. There must be no substantial impairment of constitutional rights 3. The means used must be released to the object sought 4. There must be no conflict with valid federal legislation 7

8 5. A criminal statute must be clear so that a person will know what is required of him V. Correctional System A. Fourth amendment offenders and their property are subject to search at anytime. Rules regarding search and seizure do not apply to offenders in a correctional setting 1. Offenders are already in custody and therefore cannot be arrested 2. No warrant is necessary to search offenders and their property 3. Seizure of anything that is contraband 4. May be charged criminally 5. No right to privacy B. Fifth amendment 1. Offenders are afforded the same rights regarding selfincrimination and double jeopardy as defendants not incarcerated 2. Offenders do not have access to Grand Juries unless they are charged with a new crime 3. Officers are not required to give the Miranda warning prior to interrogation. It is only necessary for new charges 4. Offenders are given due process in all forms of discipline and criminal proceedings C. Sixth amendment 1. Offenders are given the same opportunity for a speedy and public trial as someone awaiting trial 2. Offenders are afforded a jury in any criminal proceedings 3. Offenders are notified of charges against themselves in both criminal and discipline proceedings 4. Offenders have the right to confront witnesses and present witnesses on their behalf 5. Right to counsel a. Offenders are given the opportunity for counsel if they cannot afford it during felony criminal proceedings b. Offenders do not have the right to counsel during institutional proceedings such as discipline hearings or parole hearings D. Fourteenth amendment offenders are afforded due process whether it is an institutional proceeding such as a discipline hearing or a criminal proceeding Activities 1. Double Jeopardy. Show scene selection #14 video clip from the movie Double Jeopardy (a similar scene from a different movie may be used instead). Have students discuss how double jeopardy applies in this case. They should be able to give a working definition of double jeopardy based on the clip. Use the Discussion Rubric for assessment. 2. Constitutional Law Review Game. Divide the students into two teams. Allow one student at a time to answer from the selected team. The 8

9 teammates may not help during the first phase. If the student gets the answer wrong or does not know the answer, then the question goes to the other team. Give them ten seconds to collaborate and then a spokesperson must answer the question. If the second team does not know the answer, then neither team gets the points. The team with the most points at the end of the game wins. Use the Constitutional Law Review Game computer-based presentation to play and assess. Assessments Constitutional Law Exam and Key Discussion Rubric Individual Work Rubric Materials Constitutional Law computer-based presentation Constitutional Law Review Game computer-based presentation Arrest warrant sample Search warrant sample Double Jeopardy DVD optional Resources X, Constitutional Law, Bernard Schwartz, John Attanasio, and Norman Redlich, Arlington Police Department training Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) Texas Penal Code The U.S. Constitution and the Bill of Rights Accommodations for Learning Differences For reinforcement, students can make flash cards to help them remember the rights of each of the amendments. The numbers 4, 5, 6, and 14 should be on one set of cards. Then write each of the rights covered under these amendments separately on another card. Flip through the rights and have students hold up the flashcard with the correct amendment. Use the Individual Work Rubric for assessment. For enrichment, give the students a crime scenario, including a picture of a house or apartment building. Have students review all of the requirements of a search warrant and arrest warrant. Let them review the attached copies of a search and arrest warrant. Have the students write a search warrant or arrest warrant based on the scenario information given. Use the Individual Work Rubric for assessment. State Education Standards Texas Essential Knowledge and Skills for Career and Technical Education Correctional Services (One to Two Credits). (6) The student recognizes constitutional laws and laws of correctional systems. The student is expected to: (E) execute protocols associated with arrest, search, and 9

10 (F) (G) seizure using the statues set forth by the Fourth Amendment; summarize the rights of an individual being interrogated under the Fifth Amendment; examine trial, jury, and due process rights; College and Career Readiness Standards English/Language Arts IV. Listening A. Apply listening skills as an individual and as a member of a group in a variety of settings. 3. Use a variety of strategies to enhance listening comprehension. 10

11 Name Date Constitutional Law Exam 1. Someone has been found not guilty of capital murder. He cannot be tried again for that crime. What amendment gives this protection? a. 4 th b. 5 th c. 6 th d. 14 th 2. Jurors hearing a court case must be impartial; they cannot discriminate. What amendment requires jurors to be fair when serving over a court case? a. 6 th b. 4 th c. 5 th d. 7 th 3. All arrests and searches must be legal and require knowledge that a person may commit or has committed an offense. What amendment protects against unreasonable searches and seizures? a. 8 th b. 5 th c. 4 th d. 6 th 4. Arrests and searches must contain a certain element. Without it, the arrest and/or search are invalid. What is required to arrest or search an individual? a. Reasonable suspicion b. Probable cause c. Clear and Convincing evidence d. Nothing is needed to arrest or search 5. You have a right to have an attorney present with you during any felony criminal proceeding. What amendment gives you this freedom? a. 5 th b. 6 th c. 7 th d. 4 th 6. Your words can be used against you as evidence. You have the right to remain silent and do not have to say anything that might incriminate you in a court of law. What amendment protects you against self-incrimination? a. 14 th b. 5 th c. 6 th d. 4 th 11

12 7. Keeping you in jail for many years while waiting for your court date is prohibited in the United States. What amendment gives individuals the right to have a speedy trial? a. 8 th b. 4 th c. 6 th d. 5 th 8. What is the warning (or rights) that officers say to individuals arrested for a criminal offense prior to interrogation? a. Arrest warning b. Judge s warning c. Criminal Rights d. Miranda Warning 9. Which amendment protects against unreasonable searches and seizures? a. 14 th b. 4 th c. 5 th d. 6 th 10. Which amendment protects against self-incrimination? a. 5 th b. 6 th c. 14 th d. 4 th 11. Which amendment gives the right to an attorney? a. 4 th b. 6 th c. 5 th d. 14 th 12. Which amendment says persons must be indicted by a grand jury? a. 6 th b. 5 th c. 4 th d. 14 th 13. Which amendment gives the right to be tried by impartial jury? a. 7 th b. 4 th c. 6 th d. 5 th 14. Which amendment gives the right to a public and speedy trial? a. 6 th b. 5 th c. 14 th d. 4 th 12

13 15. Which amendment prevents police from forcing a confession? a. 6 th b. 5 th c. 14 th d. 4 th 16. Which of the following is not an element of arrest? a. Use of force b. Authority c. Taking into custody d. Suspect understands they are arrested 17. Constructive custody is defined as. a. Control exercised over another that subjects the person to the officer s general authority b. Investigative detention that lasts only as long as necessary c. Actual, corporeal, and forcible detention of another d. A person is taken into custody or placed under restraint 18. Excessive force may be used to make an arrest. a. True b. False 19. Which Supreme Court cases says that if an apparent item of contraband is in plain view, it may be seized? a. Florida v. Royer b. Mapp v. Ohio c. Coolidge v. New Hampshire d. Terry v. Ohio 20. Which of the following is not a category of evidence? a. Plain view b. Fruits of a crime c. Contraband d. Tools of a crime 21. The Exclusionary Rule developed out of which Supreme Court case? a. Florida v. Royer b. Mapp v. Ohio c. Terry v. Ohio d. Coolidge v. New Hampshire 22. You may be arrested anytime of the night or day. a. True b. False 13

14 23. Which of the following is not an element of arrest? a. Understanding of subject that they are arrested b. Officers authority to make the arrest c. Person must be taken into custody d. Frisk performed by officer 24. Which of the following is not a building block for probable cause? a. Physical Evidence b. Furtive movement c. Contraband in plain view d. All are building blocks for probable cause 25. A stop is justified in all circumstances except. a. An officer doesn t like the way you look b. Suspect fits the description of a wanted person c. Suspect is present in a crime scene area d. Suspect is running away 26. Which Supreme Court case gives officers the right to frisk a person they have legally detained if the officer believes the person has a weapon? a. Florida v. Royer b. Terry v. Ohio c. Coolidge v. New Hampshire d. Mapp v. Ohio 27. Which Supreme Court case found that officers may detain you only as long as necessary to complete their investigation? a. Terry v. Ohio b. Coolidge v. New Hampshire c. Florida v. Royer d. Mapp v. Ohio 28. A Search Warrant may be issued if the officer has reasonable suspicion. a. True b. False 29. A Search Warrant must describe the place to be searched and the property to be seized. a. True b. False 30. What level of proof does an administrator at your school have to have in order to search you or your property? a. Mere hunch b. Probable cause c. Don t need any proof, you are at school d. Reasonable suspicion 14

15 31. Police officers at a school campus must have what level of proof for a search? a. Do not need any, they are the police b. Reasonable suspicion c. Probable cause d. Mere hunch 32. Which Supreme Court case holds that evidence that is obtained in an illegal search can be excluded from both state and federal cases? a. Mapp v. Ohio b. Terry v. Ohio c. Florida v. Royer d. Coolidge v. New Hampshire 33. If consent is given for a search, that consent can be withdrawn at any time. a. True b. False 34. A search of a person or immediate area of control can legally be conducted after an arrest. a. True b. False 35. A search is defined as a prying into open places. a. True b. False 36. The 4 th amendment protects places, not people. a. True b. False 37. Which of the following is not an exception to a search warrant? a. Open field b. Anything with consent c. Private property d. Inventory 38. Which U.S. Supreme Court case ruled that self-incriminating evidence cannot be used against someone who is compelled by force to confess? a. Mapp v. Ohio b. Brown v. Mississippi c. Terry v. Ohio d. Coolidge v. New Hampshire 39. Which U.S. Supreme Court case ruled that there is no constitutional requirement to give a defendant a trial within a specified time limit? a. Brown v. Mississippi b. Washington v. Texas c. Barker v. Wingo d. Pointer v. Texas 15

16 40. Which U.S. Supreme Court case ruled that defendants have a fundamental right to present their own witnesses to establish a defense? a. Pointer v. Texas b. Barker v. Wingo c. Washington v. Texas d. Mapp v. Ohio 41. Which U.S. Supreme Court case ruled that defendants have a fundamental right to confront witnesses against them at trial? a. Washington v. Texas b. Barker v. Wingo c. Pointer v. Texas d. Brown v. Mississippi 42. Which U.S. Supreme Court case ruled that all defendants are entitled the appointment of an attorney in a felony case? a. Gideon v. Wainwright b. Pointer v. Texas c. Washington v. Texas d. Brown v. Mississippi 43. Which is not a fundamental right of due process under the 14 th amendment? a. Notice of proceedings b. A fair hearing c. A prejudiced jury d. Opportunity to prepare for a hearing 44. Offenders in a correctional setting can only be searched with probable cause. a. True b. False 16

17 Constitutional Law Exam Key 1. B 2. A 3. C 4. B 5. B 6. B 7. C 8. D 9. B 10. A 11. B 12. B 13. C 14. A 15. C 16. A 17. C 18. B 19. C 20. A 21. B 22. A 23. D 24. D 25. A 26. B 27. C 28. B 29. A 30. D 31. C 32. A 33. A 34. A 35. B 36. B 37. C 38. B 39. C 40. C 41. C 42. A 43. C 44. B 17

18 Name Date Objectives 4 pts. Excellent Discussion Rubric 3 pts. Good 2 pts. Needs Some Improvement 1 pt. Needs Much Improvement N/A Pts. Participates in group discussion Encourages others to join the conversation Keeps the discussion progressing to achieve goals Shares thoughts actively while offering helpful recommendations to others Gives credit to others for their ideas Respects the opinions of others Involves others by asking questions or requesting input Expresses thoughts and ideas clearly and effectively Total Points (32 pts.) Comments: 18

19 Name Date Objectives Follows directions Student completed the work as directed, following the directions given, in order and to the level of quality indicated 4 pts. Excellent Individual Work Rubric 3 pts. Good 2 pts. Needs Some Improvement 1 pt. Needs Much Improvement N/A Pts. Time management Student used time wisely and remained on task 100% of the time Organization Student kept notes and materials in a neat, legible, and organized manner. Information was readily retrieved Evidence of learning Student documented information in his or her own words and can accurately answer questions related to the information retrieved *Research/Gathering information (if relevant) Student used a variety of methods and sources to gather information. Student took notes while gathering information Total Points (20 pts.) Comments: 19