CONSTITUTION DAY

CONSTITUTION DAY Rights of the Accused: From Arrest to Appeal

Misty called Officer Ramirez and told him that a high school student with a red backpack and walking stick would be carrying a significant amount of marijuana in the backpack. Misty described the suspect and the location where he would be walking.

As Officer Ramirez was on patrol, he saw a teenager matching the description in the tip. The backpack was red and he was walking with a walking stick around the time that Misty stated. Officer Ramirez turned on his lights and siren. He pulled over and asked the person to stop. The person was Joe. Should Joe stop?

Why should Joe stop when asked by Officer Ramirez? What constitutional amendment applies at this point?

FOURTH AMENDMENT The right of the people to be secure in their persons, houses, papers, and effects, 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 police officer may approach and detain a person for the purpose of investigating possible criminal behavior even if there is no probable cause to support an arrest. A brief detention does not violate the Fourth Amendment if the officer has a reasonable and articulable suspicion that the person has committed or is about to commit a crime.

Joe walked over to the front of the police vehicle. Officer Ramirez asked Joe his name. Joe refused to answer the question. Can Joe refuse to identify himself? When an officer approaches a person and seeks voluntary cooperation through noncoercive questioning, there is no restraint on that person’s liberty, and that person is not seized.

Joe provided his identification to Officer Ramirez. Officer Ramirez ran the information through LEIN and there were no warrants. Officer Ramirez returned Joe’s identification and asked Joe where he was going. Joe did not answer. Officer Ramirez asked to search the backpack. Joe did not answer and began to walk away. Officer Ramirez put his hand on Joe’s shoulder and stated that he could not leave.

Is there a seizure when Officer Ramirez stopped Joe from leaving? “A ‘seizure’ within the meaning of the Fourth Amendment occurs only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave.” People v Jenkins, 472 Mich 26, 32 (2005)

Officer Ramirez led Joe to the front of the police vehicle and patted Joe down. If Joe is not under arrest, can Officer Ramirez pat down Joe?

During an investigatory stop based on a reasonable and articulable suspicion, a police officer is entitled to conduct a limited search of the outer clothing of the person to determine if the person has any weapons that may be used against the police officer.

Officer Ramirez asked Joe for consent to search the backpack and Joe stated, “No.” Officer Ramirez opened the backpack and found what appeared to be two packages of marijuana. Officer Ramirez then handcuffed Joe and advised that he was under arrest for possession with intent to deliver marijuana. Was the search of the backpack reasonable?

The applicable test in determining the reasonableness of an intrusion is to balance the need to search, in the public interest, for evidence of criminal activity against invasion of the individual’s privacy. Generally, a search conducted without a warrant is unreasonable unless there exist both probable cause and exigent circumstances establishing an exception to the warrant requirement.

Probable cause to search exists when facts and circumstances warrant a reasonably prudent person to believe that a crime has been committed and that the evidence sought will be found in a stated place. Whether probable cause exists depends on the information known to the officers at the time of the search. The recognized exceptions to the warrant requirement are exigent circumstances, consent, and plain view.

The exigent circumstance exception is applicable where the police have probable cause to believe that an immediate search will produce specific evidence of a crime and that an immediate search without a warrant is necessary in order to (1) protect the officers or others, (2) prevent the loss or destruction of evidence, or (3) prevent the escape of an accused. Do any of these exceptions apply in this case?

The plain view exception allows the seizure of objects within the plain view of an officer who has a right to be in the position to have that view. Three conditions must be satisfied: • There must be prior justification for the officer’s intrusion into an otherwise protected area. • The evidence must be obviously incriminatory or contraband. • The discovery must be totally inadvertent.

The consent exception permits searches and seizures when consent is unequivocal and specific, and freely and intelligently given. Ordinarily, the consent to search is given by the person affected. A third party may consent to the search when the consent person has an equal right of possession or control over the premises. A consent can be valid even if the person is not apprised of his right to refuse consent.

Generally, if evidence is unconstitutionally seized, it must be excluded from trial. Exclusion of improperly obtained evidence serves as a deterrent to police misconduct and preserves judicial integrity. The exclusionary rule applies not only to evidence improperly seized during a search without a warrant, but to evidence subsequently seized pursuant to a warrant as a result of an initial illegal search.

Officer Ramirez took Joe to the police department. Joe was fingerprinted and his mug shot was taken. Officer Ramirez then took Joe to a interrogation room with only one chair. Joe had to stand with his hands cuffed behind his back. Officer Ramirez questioned Joe regarding his intentions with the marijuana, who he obtained it from, and whether it was his. For the first few hours, Joe said nothing. He was getting hungry, tired, and sore from being in the interrogation room for four hours without sitting down. Are there any concerns at this point?

After three and a half hours of interrogation and standing, Joe admitted that the marijuana was his, that he intended to sell it, and that the marijuana was given to him by his stepfather, Alex. who was forcing him to sell the marijuana at school. After Joe confessed to the marijuana and implicated Alex, Officer Ramirez requested a search warrant for Alex’s home based on the statements made by Alex and uncovered 15 marijuana plants in the home. Alex was arrested and charged as well. What Constitutional provision is being affected?

FIFTH AMENDMENT No person shall be held to answer for a capital, or otherwise infamous crime, unless a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject to the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

What should Joe have been given prior to interrogating him at the police department? MIRANDA WARNINGS What are the Miranda Warnings?

Miranda warnings must be given to an individual in custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning. Mirandav Arizona, 384 US 436, 479 (1966) Can a person waive his or her right to remain silent?

Shortly after arresting Alex, Officer Ramirez brought Joe into the same interrogation room. At this time, Officer Ramirez gave the Miranda warnings to Joe and asked if Joe waived them. Joe signed a waiver and admitted to possessing the marijuana with the intent to sell it. Does this second interrogation with Miranda Warnings fix the issues with the previous interrogation?

Joe was charged with intent to deliver Marijuana less than 50 grams which is a felony punishable by imprisonment for not more than 20 years or a fine of not more than $25,000 or both. After being charged, what is the first step in the court process?

ARRAIGNMENT According to the Sixth Amendment of the Constitution, a defendant has the right to be informed of the nature and cause of the accusation. Arraignment also informs a defendant that he has a right to counsel. Under the Michigan Constitution, does a defendant have the same right?

At arraignment, district court Judge Bueller read a copy of the information to Joe. Judge Bueller advises Joe that he has been charged with intent To deliver marijuana less than 50 grams and then explains the maximum penalty if found guilty. After reading the information, the judge asked whether Joe wanted to plead guilty or not guilty. Joe advised the court that he wanted an attorney and could not afford one. What should the court do and why?

Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and causes of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Next Step: Preliminary Examination The purpose of the preliminary examination is to determine whether probable cause exists to believe that a crime was committed and that the defendant committed it. Probable cause is established if a person of ordinary caution and prudence could conscientiously entertain a reasonable belief of the defendant’s guilt.

After the preliminary examination, district court Judge Bueller found that there is probable cause that a crime has been committed and that Joe committed the crime. Joe was bound over to Circuit Court in order to stand trial. Now, Joe has to decide whether he wants a bench trial or a jury trial. What gives Joe the right to decide the type of trial? What type of trial should Joe pick?

BENCH TRIAL v. JURY TRIAL • In a bench trial, the judge decides the law; and • The judge will be the trier of fact and determine credibility of witnesses. • In a jury trial, the Judge will determine the law; and • The jury will be the trier of facts and determine credibility of witnesses. Would you waive a jury trial?

Forty four months after the preliminary examination, Joe’s trial was held. The trial was adjourned multiple times because the prosecution argued that a key witness, Misty, was unavailable at trial. Misty was in a rehabilitation center that was located in the same city as the courthouse. The prosecutor believed that a clean and sober Misty would be more credible in front of a jury. Joe was in jail until the time of trial. What, if any, right of the accused is at issue?

Speedy trial • There is no absolute standard for what a speedy trial is. • There are four factors to consider: a. Length of delay; b. Reason for delay; c. Defendant’s assertion of his right; and d. Prejudice to defendant.

Misty is the informant that told Officer Ramirez that Joe had the marijuana. The prosecutor decided not to call Misty to testify because Misty left rehab and was using cocaine and drinking again. Also, Misty was homeless. The prosecutor knew that Misty was sleeping in a local homeless shelter but did not subpoena her or notify her of the trial. Is the witness unavailable to testify?

Unavailable witness: A witness is considered unavailable if he or she is “absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance…by process or other reasonable means, and in a criminal case, due diligence is shown.” A witness cannot be unavailable for purposes of using former testimony unless the prosecutor has made good faith effort to obtain the witness’ presence at trial.

The prosecutor rested his case. The defense attorney rested its case without calling any witnesses or presenting any evidence. In the prosecutor’s closing arguments, the prosecutor stated that the facts were not in dispute because Joe failed to testify. Which constitutional amendment is affected by the prosecutor’s statement?

United States Constitution5th Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

[T]he constitutional foundation underlying the privilege is the respect a government–state or federal–must accord to the dignity and integrity of its citizens. To maintain a ‘fair state-individual balance,’ to require the government ‘to shoulder the entire load’ . . . , to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his mouth.” Miranda v Arizona, 384 US 436, 460 (1966)

A prosecutor may not comment upon a defendant’s failure to testify. However, a prosecutor’s statement that certain inculpatory evidence is uncontroverted does not constitute a comment regarding the defendant’s failure to testify, particularly where someone other than the defendant could have provided contrary testimony.

After about 10 minutes in deliberations, the jury found Joe guilty of intent to deliver marijuana less than 50 grams. Joe was sentenced to five years in prison in addition to fines. Joe wants to appeal and requested the assistance of counsel. Does Joe have the right to counsel for appeals?

An indigent defendant has the right to appointed appellate counsel for the first tier review by the Michigan Court of Appeals.

You are a judge on the Michigan Court of Appeals; should Joe’s conviction be overturned?

CONSTITUTION DAY