Criminal Law-Constitutional Protections
The criminal process can be initiated by both state and federal prosecutors. The Bill of Rights (the first ten amendments to the Constitution) initially only restricted the power of the federal government and was not considered to have any application to criminal prosecutions in state court. But over the last fifty years, there has been a process of selective incorporation, wherein the rights guaranteed to defendants in federal criminal prosecutions have been selectively incorporated into state prosecutions.
Today, virtually all the rights set forth in the Bill of Rights apply not only to federal criminal prosecutions, but also to state criminal prosecutions. As such, a defendant’s right to remain silent, the right to competent counsel, the right to confront his or her accusers, the right to be free from cruel and unusual punishment, and most of the other rights set forth in the Fourth, Fifth, Sixth, and Eighth Amendments have been made applicable to defendants charged with crimes in the state court system.
Many of the rights associated with a criminal prosecution are rights that come into play before an arrest is ever made. The Fourth Amendment says that you have a right to be free of unreasonable police searches and seizures. The police cannot stop you while you are walking down the street unless they have some reasonable justification for believing that you either have committed a criminal offense or are about to commit a criminal offense. If a police officer sees you walking down the street engaging in some unusual behavior, stops you to question you about this, and sees a conspicuous bulge under your coat that looks like it may be a pistol, then he or she may detain you and pat you down to determine if it is in fact a pistol. If it is a pistol and you are not allowed to be carrying such a concealed weapon, then you may be arrested.
Suppose a police officer receives a report that a bank has just been robbed and hears a description of the perpetrators broadcast over the police radio. If that police officer feels that you fit the description, then he or she may stop you and ask where you have been, where you are going, and request your identity. If the police officer is not satisfied at that point that you are not the suspect, he or she may even take you back to the scene of the crime to see if you can be identified by any of the witnesses. If you are then identified by one of the witnesses, you will be arrested.
A police officer, however, may not stop you and detain you while you walk down the street simply because you look suspicious or unsavory. Instead, he or she must have some reason that can be articulated that would cause a reasonable person to conclude that you have committed some criminal offense or are about to commit a criminal offense.
You have probably heard the saying a man’s home is his castle. Indeed, that is true insofar as police searches are concerned. The police cannot randomly come into your home and conduct a search. Generally, the police need to have a search warrant to conduct a search of the premises. In certain emergency circumstances, they may be allowed to come into the premises and conduct a search. This is only allowed if it is necessary in order to accomplish an arrest of a person whom they believe has committed a crime or if it is necessary to prevent the destruction of evidence. If time permits, however, the police are required to obtain a warrant issued by a judge or magistrate authorizing the search and entry into a home.
Generally, the police need to have a search warrant to conduct a search of your home.
