Criminal Procedure

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Criminal Procedure CJ 422 Chapter 15
Constitution and Crisis Andrew Fulkerson, JD,
PhD
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Constitution and Crisis

• Emergency powers may be given to government
• Limitation on emergency powers
• Necessity - must be absolutely necessary for
  government to take power
• Temporary - as soon as crisis over, exercise of
  power must end

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War on Terrorism - Post 9/11

• Different kind of war
• No defined national enemy
• No uniform
• No territorial boundaries

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USA Patriot Act

• U - Uniting, and
• S - Strengthening
• A - America, by
• P - Providing
• A - Appropriate
• T - Tools
• R - Required, to
• I - Intercept, and
• O - Obstruct
• T - Terrorism

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Patriot Act - Scope

• Does the USA Patriot Act go too far in infringing
  on rights of persons?
• Is it necessary to preserve society?

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Surveillance and Terrorism

• 4th Amendment protects against unreasonable
  searches and seizures
• Supreme Court ruled on limits of 4th Amendment
• 4th Amendment bans unreasonable searches and
  seizures
• Private conversations recorded from "wired"
  informant (U.S. v. White)
• Telephone company records of outgoing calls-"pen
  registers" (Smith v. Maryland)
• Persons bank records (U.S. v. Miller)
• Not all government action is search or seizure

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Surveillance and Terrorism

• 3 "tiers" of balancing govt power against
  individual privacy

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Tier 1 Real-time electronic surveillance

• Crime Control and Safe Streets Act of 1968
• General prohibition of wiretaps
• Exception for serious crimes
• Serious crime defined as one punishable by death
  or one year prison (generally-felonies)
• A. G. or senior DOJ official may ask for order
  authorizing wiretap or bug to intercept
  conversations
• Application must include facts which justify
  order full statement that other methods of
  investigation have been tried and failed how
  long interception shall last

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Tier 2 Surveilling Stored Electronic
Communications

• More government power-less individual privacy
• Patriot Act allows government to access stored
  wire and electronic communications - voice mail,
  and email
• Not limited to "serious" crimes - apply to any
  criminal investigation
• Limits on power for communications stored over
  six months, govt must get warrant based on
  probable cause. But govt does not have to tell
  the subscriber of the existence of the warrant
  for 90 days if court finds disclosure could have
  adverse result on investigation

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Tier 3 Secret Caller ID

• Allows govt to capture and record all telephone
  numbers from a persons telephone (numbers not
  conversations)
• No court order requied
• No time limit
• No requirement to tell the subscriber they are
  getting this information, or what is learned

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Tier 3 Secret Caller ID

• Only restriction is that use of secret caller ID
  must be approved by a DOJ senior official
• Allows recording of email "headers" along with
  telephone numbers
• When email headers are collected, agency must
  report to court who installed device date of
  installation configuration of device and any
  modifications information captured

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Patriot Act Library Provisions

• Section 215
• FBI may demand records
• "if there are reasonable grounds to believe that
  the records contain information relevant to a
  national security investigation."

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Patriot Act Library Provisions

• Is this overly broad?
• Should it be limited to terrorism activities?

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National Security Agency Terrorist Surveillance
Program (TSP)

• After abuses by NSA in Vietnam era (COINTELPRO)
• Congress enacted Foreign Intelligence
  Surveillance Act (FISA) in 1979
• Allowed govt to eavesdrop on foreign agents
• But required warrant from court

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FISA

• Due to highly sensitive nature of foreign
  terrorism investigations
• Established special court to review warrant
  requests
• FISA court operates in secret
• Judges selected from US Courts of Appeal

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FISA Court

• Allows for investigation of suspected foreign
  agents
• But maintains checks and balances required by
  Constitution
• Warrants reviewed and approved by judicial branch
• Warrants executed by executive branch

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FISA Court

• Provides for emergency situations
• Surveillance without warrant
• But, warrant must be obtained within 72 hours

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TSP

• After 9-11 Bush issued Executive Order allowing
  warrantless surveillance inside US
• Terrorist Surveillance Program (TSP)
• January 18, 2007 program halted
• Administration would use the FISA court

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"Sneak and Peak" Searches

• Generally, search of private place is
  unreasonable unless there is a warrant supported
  by probable cause and the officers "knock and
  announce"
• No-knock" emergency exception
• Broad expansion of no-knock procedure is the
  "sneak and peak" search

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"Sneak and Peak" Searches

• Warrant allows officers to enter private place
• Owner does not consent and does not know the
  entry takes place

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"Sneak and Peak" Searches

• Sneak and peak warrants began in drug cases in
  1980s
• Over 35 such warrants issued by federal judges in
  1980s
• Two Circuits (2d and 9th) upheld this procedure
• 2d Circuit held it was a reasonable search
• 9th Circuit held it was not a reasonable search
  but was under the "good faith" exception to
  exclusionary rule

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Sneak and Peak Searches

• Patriot Act enacted sneak and peak search into
  statutory form ( 213)
• Court must find reasonable cause to believe that
  providing immediate notification of execution of
  warrant may have adverse effect

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Sneak and Peak Searches

• "Adverse effect" defined as
• Endangering life
• Flight from prosecution
• Destruction of evidence
• Intimidation of witnesses
• Otherwise seriously jeopardizing investigation

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Sneak and Peak Searches

• Warrant prohibits seizure of property except
  where court finds reasonable necessity for
  seizure
• Warrant provides for giving notice within a
  reasonable time of execution. This time may be
  extended by court for good cause

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Sneak and peak criticism

• Restrictions are meaningless
• Warrant is issued in secret ex parte hearing
• Issued based on "boilerplate" allegations
• Judges are "rubber stamp" for cops

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Sneak and peak criticism

• Adverse effect" requirement is so broad as to be
  no restriction at all. Only requires court to
  find that one of the factors "may" exist
• Prohibition on seizure of tangible property has
  broad exception where court finds it "reasonably
  necessary" to seize
• Notice requirement can be delayed without
  limitation

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Detention of Terrorist Suspects

• Terry v. Ohio requires reasonable suspicion to
  even briefly stop and detain
• Detaining person for a few hours at police
  station is unreasonable
• 4th and 6th Amendment require person who is
  detained to be taken before a judge within 48
  hours for probable cause determination
  (McLaughlin v. Riverside)

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Post 9-11 enactments

• Presidential Proclamation 7463 7463, Federal
  Register 2001, 48199 (September 14, 2001)
• Declared "national emergency by reason of certain
  terrorist attacks"

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Post 9-11 enactments

• Congressional Joint Resolution "Authorization for
  Use of Military Force"
• President authorized to use force against those
  nations, organizations or persons who involved in
  9/11/01 terrorist attacks

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Post 9-11 enactments

• Presidential Military Order of November 13, 2001,
  "Detention, Treatment, and Trial of Certain
  Non-Citizens in the War Against Terrorism"
• Federal Register 2001, 57831-57836
• Certain non-citizens who were involved in 9-11
  attacks, or members of al Qaida, may be detained
• Detainees shall be treated humanely given
  adequate food and water, shelter and clothing,
  and medical care allowed free exercise of
  religion, subject to requirements of detention

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Torture During Detention

• Article 15 of the (Geneva) Convention against
  Torture and Other Cruel, Inhuman, or Degrading
  Treatment or Punishment.
• Statements gained through torture will not be
  used as evidence in any proceeding.

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Torture During Detention

• Abu Ghraib
• Alberto Gonzalez, as White House Counsel, wrote
  that Geneva Conventions were a "quaint" relic of
  the past.

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CIA Interrogation Tactics

• The Attention Grab
• Attention Slap
• Belly Slap
• Long-time Standing
• Cold Cell
• Water-Boarding

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Interrogation Tactics

• Rochin v. California (1952)
• Pumping suspects stomach to retrieve heroin
  violated due process

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Terrorists Right to Counsel

• 6th Amendment guarantees right to counsel
• Powell v. Alabama recognized this right is
  "necessary to insure fundamental rights of life
  and liberty."
• Applies to criminal cases. District Court in
  Padilla v. Bush, held this not apply to terrorist
  cases.
• All Writs Act 18 U.S.C. 3006A(2)(B) permits
  court to appoint counsel in habeas corpus cases
  "if the interests of justice so require."

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Terrorist Trials by Military Court

• Persons accused of terrorist acts can be tried
  for criminal offenses in Article III Courts
  (federal courts created by Article III of the
  Constitution)
• Or be tried for war crimes in Military
  Commissions (aka military tribunals)

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Military Commissions

• Panel of military officers
• War crimes defined as acts that inflict
  needless and disproportionate suffering and
  damages in pursuit of a military objective
• Military Commission distinguished from court
  martial (which tries only violations of Code of
  Military Justice.)

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Military Commission Authority

• Article II, Section 2 Constitution
• Makes President Commander-in-Chief of armed
  forces.
• Gives President responsibility to ensure laws are
  faithfully executed

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Jurisdiction of Military Commissions

• Executive Order, Federal Register 2001, 57833
  applies only to non-citizens
• During wartime, aliens of enemy nations can be
  detained and deported, property confiscated, even
  denied access to courts
• Gives exclusive jurisdiction to military
  commission
• No right of review by another court
• But Quirin held that court still has right to
  habeas corpus jurisdiction

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Trial Proceedings of Military Commissions

• Military commissions not governed by
  constitutional requirements
• But, Department of Defense has enacted procedural
  protections

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Trial Proceedings of Military Commissions

• Right to speedy trial
• Requirement that govt prove case beyond
  reasonable doubt
• Right to call witnesses, and cross-examine
• Protection against self-incrimination
• No adverse inference from remaining silent
• Must prove case beyond reasonable doubt
• Any hearing will be full and fair
• Military Defense Counsel provided at no cost

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Right to Counsel

• Accused may hire private civilian counsel at
  their own cost, if counsel is
• American citizen
• Admitted to practice in a US jurisdiction
• Not been sanctioned or disciplined by a state bar
  committee
• Eligible for and obtains at least a Secret
  clearance
• Agrees to follow Military Commission rules

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Evidence

• Presiding Officer may admit any evidence that has
  probative value to a reasonable person
• Finding of guilt requires 2/3 of the panel
  members to concur in finding of guilt
• Panel may impose any reasonable sentence,
  including death
• Death sentence requires unanimous decision.

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Review

• 3-member Review Panel of Military Officers
• Review Panel may return case to Commission if
  majority of Review Panel believes that material
  error of law exists.
• Secretary of Defense will review and may return
  case to Military Commission for further
  proceedings or may forward to President with a
  recommendation for disposition
• President may return case to Commission for
  further proceedings or make final decision.

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Review

• President may delegate final authority for
  decision to Secretary of Defense.
• If President has delegated final authority
• Secretary of Defense may approve or disapprove
  findings or may change the finding of guilty to
  a finding of not guilty, or guilty of a lesser
  offense or may mitigate or defer, or suspend any
  sentence or part of any sentence
• Finding of Not Guilty by Commission cannot be
  changed to Guilty.

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Sentence/Review

• After final decision, sentence shall be carried
  out promptly
• Military Commissions Act of 2006 limits habeas
  corpus relief

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Gitmo/Non-citizen Detainee

• Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006)