Chapter Eight

 Chapter Eight

The Rights of The Criminally Accused Part One:

Searches, Investigations, Arrests, and Evidence

Chapter Outline

A. Overview 

1. Origins

2. Guiding Principles

3. Powell v. Alabama

B. Searches 

1. Analytical Approach

2. Original Language of the Fourth Amendment

3. Modern "Translation" of the Fourth Amendment

4. Important Cases

5. Exceptions to the Warrant Rule

C. Investigations and Arrests 

1. Original Language of the Fifth Amendment

2. Modern "Translation" of the Fifth Amendment

3. Important Cases 

D. Evidence 

E. Current Issues 

1. Ice Raids

2. Cybercrime

A. Overview

1. Origins

To understand the rights guaranteed to those accused of crimes in the United States, it helps to first consider their origins. The Articles of Confederation did not include any references to the rights of the criminally accused.  Before the U.S. Constitution was ratified, civil rights and civil liberties were governed by state constitutions. Pennsylvania, Virginia, Maryland, North Carolina, and other states had provisions in their constitutions that protected those accused of crimes. The Massachusetts Constitution, which was written in 1780, made specific references to search warrants, protection against self-incrimination, trial by jury, and bans on cruel and unusual punishment. Later, when the need for a stronger national government became apparent, the Massachusetts Constitution served as an important model for many of the provisions in the U.S. Constitution and the Bill of Rights.  Those who drafted the amendments, like John Adams and James Madison, drew on English legal traditions like the Magna Carta and the English Bill of Rights of 1689 (Cornell Law School, n.d.).

The Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution were written to prevent the kinds of abuses of power that colonists had suffered under British rule, like unreasonable searches and seizures, forced confessions,  trials without juries, and excessive punishments. This chapter will explore the civil liberties that pertain to searches, investigations, arrests, and evidence that are based on the Fourth and Fifth Amendments. The topics of trials, sentencing, and punishments are covered by the Sixth and Eighth Amendments and will be examined in Chapter Nine.  

2. Guiding Principles

When starting to analyze the rights of the accused, keep three important principles in mind:

• First, the government must always balance the need for public safety with the protection of individual rights.  A law that enhances public safety might infringe upon one of the amendments. At the same time, a rigid interpretation of an amendment could limit the government’s ability to protect the public in certain situations.  Striking this balance has always been, and will continue to be, one of the most difficult challenges faced by legislatures and courts.

• Second, all criminal defendants are entitled to due process.  In this context, this means the government must follow fair and consistent legal procedures before depriving anyone, even those who are not citizens, of their freedom.  The Fifth Amendment guarantees that “no person... shall be deprived of life, liberty, or property, without due process of law” .  Due process must also be provided to juveniles and to those involved in civil proceedings. In short, due process is supposed to protect everyone from unfair treatment by the government.

• Third, according to the Bureau of Justice Statistics, tens of millions of Americans report some form of contact with police each year, meaning roughly hundreds of thousands of daily interactions. The overwhelming majority of those encounters do not result in complaints, investigations, or allegations of unfair treatment.  At the same time, public databases and Bureau of Justice Statistics reports indicate that anywhere from 25,000 to 50,000 complaints are filed each year against law enforcement agencies and courts. Thousands of other incidents are likely unreported.  While it is very likely most people are treated fairly by the criminal justice system, it is also likely that many people contend their constitutional rights are not respected by law enforcement (U.S. Department of Justice, Bureau of Justice Statistics, 2022; Police Scorecard, 2023).  Despite competing narratives that play out in the media, data does not support the view that all police misuse their authority, nor does it support the view that police officers rarely act without regard for the rights of citizens. The truth is more complex than either narrative suggests. Keep these three concepts in mind as you read this chapter and begin to contemplate whether the goals of the Founding Fathers have been realized. A good place to start is by reading Powell v. Alabama, known as the Scottsboro Boys case. 

3. Powell v. Alabama

Figure 8.1 

(Signature Theatre, n.d.)

B. Searches

1. Analytical Approach

Understanding the injustices faced by the Scottsboro Boys provides a clear foundation for analyzing the rights of the criminally accused. Moving onto more nuanced cases about the Fourth Amendment might seem intimidating at first, but using a simple three-step approach makes case analysis more manageable:

1. Read the original language of the applicable amendment.   

2. Review that language when it has been “translated” into modern-day language.  

3. Analyze the relevant Supreme Court case that establish how the amendment, or parts of it, are currently interpreted.  

4. An unofficial fourth step, which only takes place in limited circumstances, is to look at the constitution of the state where the crime occurred to see if it provides more rights than the United States Constitution. For example, in Massachusetts, prosecutors in criminal trials cannot mention that a defendant refused to take a breathalyzer test at trial, but in many other states, prosecutors are permitted to introduce such evidence (Commonwealth v. Jones, 1981).  For clarity and consistency, this chapter will use the three-step approach as its guiding framework.  However, students of civil rights should keep in mind that states may provide defendants in criminal cases rights that exceed the federal standard. 

2. Original Language of the 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.” — U.S. Const. amend. IV

3. Modern "Translation" of the Fourth Amendment

• The general rule is that the police can’t search you or your property without a warrant or your consent.

• If the police don't follow this general rule, then the evidence they seize can be thrown out of court. 

• Situations that involve technology or other factors that did not exist at the time the Constitution was written are decided on a case-by-case basis using the guiding principle of one's "reasonable expectation of privacy".

• Warrants must be very specific about the places the police want to search, the things the police are looking for, and what they plan to take into evidence. 

• In order to get a warrant, the police need to sign a statement under oath, present it to a neutral judge, and the judge must find probable cause before signing the warrant. 

• There are over a dozen exceptions to the general rule that the police need a warrant or consent to search. 

4. Important Cases 

The information outlined in the bullet points above seems straightforward because it condenses complex principles developed over decades of Supreme Court decisions interpreting the Fourth Amendment. To fully grasp these principles, it is important to examine the landmark cases that established them and understand their historical context. Only then is it possible to identify patterns and recognize the issues that have generated the most Supreme Court debate.

The general rule of needing a warrant or consent to search was articulated in Weeks v. United States (1914).  In that case, federal officers entered Fremont Weeks’s home without a search warrant and seized letters and papers belonging to him that were later used to convict him of illegal gambling.  The U.S. Supreme Court unanimously ruled that the search violated the Fourth Amendment’s protection against unreasonable searches and seizures because there was no warrant and Weeks did not give consent.  

The Weeks decision also held that evidence obtained through an illegal search could not be used in federal court, establishing what became known as the exclusionary rule. This rule was designed to deter government officials and law enforcement from violating constitutional rights by making illegally obtained evidence inadmissible in court. It is important to note that this rule is not explicitly written in the Fourth Amendment but is inferred from its principles.

Nearly fifty years later, the Supreme Court revisited the exclusionary rule in Mapp v. Ohio (1961). In that case, Cleveland police officers entered Dollree Mapp’s home without a valid warrant while searching for a suspect in a crime that did not involve Mapp. They did not find the suspect but discovered written materials that were considered obscene and illegal at the time, which led to Mapp’s arrest and conviction under state law. The Supreme Court overturned her conviction, ruling that the exclusionary rule established in Weeks must also apply to the states through the Incorporation Doctrine of the Fourteenth Amendment. From this point forward, all major protections for the criminally accused started to gradually become incorporated and applied to the states through the Fourteenth Amendment, except for grand jury rights, which are discussed later in this chapter. 

The Supreme Court created the "reasonable expectation of privacy" rule when addressing a situation that did not exist when the Constitution was written. In Katz v. United States (1967), the Court redefined the scope of the Fourth Amendment’s protection against unreasonable searches and seizures. Charles Katz was convicted of illegal gambling after FBI agents recorded his phone conversations by placing an electronic listening device on the outside of a public pay phone he used. The government argued that no physical intrusion onto Katz’s property occurred, so the Fourth Amendment did not apply. The Supreme Court disagreed, ruling that the Fourth Amendment protects people, not places. The Court established the “reasonable expectation of privacy” test, holding that a search occurs whenever the government intrudes upon an area where a person has a reasonable expectation of privacy that society is prepared to recognize as legitimate. This decision extended constitutional protections beyond physical spaces to include private conversations and electronic surveillance.

When it comes to warrants, the Court started to develop important criteria for issuing them and what they must include.  Warrants must be supported by a sworn statement, called an affidavit, which is a written declaration signed under oath by the officer outlining the facts that form the basis for the warrant. In Marron v. United States (1927), the Supreme Court ruled that general or vague warrants are unconstitutional, requiring that warrants clearly specify the persons or things to be seized, thereby limiting officer discretion. Additionally, a neutral and detached judge must review the affidavit to ensure that the government’s actions are lawful and not based on arbitrary judgment, as emphasized in Johnson v. United States (1948). Later, in Stanford v. Texas (1965), the Court reaffirmed that overly broad warrants granting unlimited discretion to seize materials, such as books or papers, violate the Fourth Amendment’s protection against unreasonable searches. These requirements ensure that searches remain limited in scope, are based on facts, and are consistent with constitutional safeguards.

Even if a warrant meets all of the criteria above, it must be based on probable cause, meaning there is probability, based on facts, not mere suspicion, that evidence of a crime will be found in the place to be searched. Some describe probable cause as existing when it is “more likely than not” that criminal evidence will be found or liken it to 51% certainty. However, that level of proof better describes the preponderance of the evidence standard used in civil cases. Most legal experts advise against numerical measurements when it comes to probable cause and instead emphasize that judges need to make an objective determination of whether the evidence makes it probable that a crime has occurred. In Illinois v. Gates (1983), the Supreme Court ruled that judges should apply a totality of the circumstances test, which requires considering all available information together, such as the reliability of informants, corroborating evidence, and overall context.  

5. Exceptions to the Warrant Rule 

When it comes to exceptions to the warrant rule, there are over a dozen scenarios where the police might not need a warrant or the consent of a suspect.  The number of exceptions might make it seem as though these exceptions swallow the rule itself.  While that may be a fair observation, understanding each exception is required to fully understand the scope of what the Fourth Amendment allows.

a. Search Incident to Lawful Arrest: A search incident to a lawful arrest does not require a warrant. If someone is lawfully arrested, the police may search the person and any area or items within the person’s immediate reach or “wingspan” (Chimel v. California, 1969). The rationale is that the searching for objects within a suspect's reach is permissible as a safety measure before placing the suspect in custody. However, in Riley v. California (2014) the Supreme Court held that police must obtain a warrant to search the digital contents of a suspect’s cellphone, recognizing that modern phones contain vast amounts of private information. If officers are concerned that data might be remotely erased, they can place the phone in a Faraday bag, a specialized pouch lined with conductive material that blocks wireless signals to preserve electronic evidence. Recent appellate decisions in the circuit courts have begun to address how the Riley rule applies to other hand-held electronic devices and cloud-based data, but the Supreme Court has not yet settled all of these questions (United States v. Morton, 5th Cir. 2021; United States v. Smith, 2d Cir. 2020).

b. Plain View Exception: No warrant is required to seize evidence that is in plain view if the police are lawfully present at the location where the evidence can be seen. The officer must be able to view the item without taking additional steps that would constitute a search, such as moving objects or changing position to gain a better view. The Supreme Court affirmed this principle in Coolidge v. New Hampshire (1971), holding that evidence in plain view may be seized if three conditions are met: the officer is lawfully present, the item’s incriminating nature is immediately apparent, and the officer has lawful access to the object itself.

c. Consent: This is an exemption to the warrant rule, rather than an exception, meaning that when a person voluntarily agrees to a search, the Fourth Amendment’s warrant requirement is not triggered in the first place because the search is considered lawful from the outset.  This topic is explained in this list for better understanding. If consent is voluntarily given by a person reasonably believed to have authority over an area or property, no warrant is required. For example, if a suspect’s significant other provides police with a key to the suspect’s apartment and police reasonably believe she lives there, the search is valid even if the suspect did not actually consent (Illinois v. Rodriguez, 1990). However, if officers know the person lacks authority, or if the suspect is present and expressly refuses consent, a warrant is required (Georgia v. Randolph, 2006). Courts consider several factors to determine whether consent is valid, such as who has control of the area, whether the area was locked, and whether the suspect demonstrated an expectation of privacy. Consent must be voluntary and not the result of coercion or implied pressure (Schneckloth v. Bustamonte, 1973).

In situations where adults live with parents or roommates, courts analyze whether the person giving consent had actual or apparent authority over the space. Judges typically consider questions such as: Did the consenting person have control and authority over the area that was searched? If so, the search is often upheld. Did the suspect pay rent or have exclusive possession of a room? If yes, a warrant is more likely to be required. Was the area capable of being locked, and was it locked at the time? Unlocked common areas are more likely to be subject to a valid consent search. Did the suspect attempt to hide items or otherwise show an expectation of privacy? If so, a warrant is generally necessary (United States v. Matlock, 1974).

d. Stop and Frisks, also known as Terry Stops: In the case Terry v. Ohio (1968), the Supreme Court ruled that police officers may stop and briefly detain a person and conduct a threshold inquiry if they have reasonable suspicion that the person is involved in criminal activity.  An explanation of the terms used in the Terry case is useful here. A brief detention is a short period of time during which someone is not free to leave while an officer conducts an investigation. It is not an arrest.  A threshold inquiry consists of brief questions regarding a suspect's identity or the conduct that gave rise to the officer's suspicions. Reasonable suspicion exists when a police officer can point to specific facts that he or she can articulate, based on observation, experience, or reliable information, that would lead a reasonable officer to believe a crime may be occurring or about to occur.  It requires more than a hunch, but less evidence than probable cause, which demands a fair probability that a crime has been committed or that evidence of a crime will be found. The Terry case was groundbreaking because it allowed brief detentions and limited searches based on a level of proof that was less than probable cause. 

During a legitimate Terry stop, an officer may also perform a limited pat-down (frisk) of the suspect’s outer clothing to check for weapons if the officer reasonably believes the person is armed and dangerous. Police officers still need probable cause to make an arrest, but if that pat-down reveals evidence of a crime, it can then provide the probable cause necessary to justify an arrest.  The Terry ruling has been extremely controversial because it has been linked to numerous instances of racial profiling and over-policing (Arizona v. Johnson, 2009; Kansas v. Glover, 2020; Floyd v. City of New York, S.D.N.Y. 2013).

One might wonder what qualifies as reasonable suspicion but not probable cause. The quintessential example of reasonable suspicion occurs when an officer sees someone “casing” a business before a robbery. Consider this scenario: An officer observes a man repeatedly pacing back and forth in front of a closed jewelry store late at night, looking into the windows and adjusting something in his waistband. The suspect appears to be sweating profusely, even though it is a cool evening, and he keeps glancing around to see if he is being watched. In this situation, the officer would have reasonable suspicion that something illegal was happening or about to happen. The officer could briefly stop and question the suspect and perform a pat-down (frisk) to check for weapons because the behavior suggests he might be planning a robbery. However, the officer does not yet have probable cause because there is no direct evidence that a crime has been committed. The officer cannot arrest the man or search his belongings without consent or further proof and may only search for weapons. However, if the officer discovers an unregistered firearm during the pat down, for example, this discovery would create probable cause and justify an arrest. 

e. Automobile Exception: Because vehicles are mobile and easily moved, police may search a vehicle without a warrant if they have probable cause to believe it contains evidence, contraband, or the fruits or instrumentalities of a crime. This exception was first recognized in Carroll v. United States (1925). Officers may search any area of the vehicle, including containers, where the object of the search could reasonably be found (California v. Acevedo, 1991). For officer safety, police may order a driver and any passengers to step outside a vehicle during a lawful traffic stop (Pennsylvania v. Mimms, 1977; Maryland v. Wilson, 1997). However, the areas searched must logically relate to the suspected evidence or contraband. Courts continue to refine how this exception applies to modern vehicles equipped with digital technology, such as GPS systems and onboard computers. In United States v. Jones (2012), the Supreme Court ruled that attaching a GPS tracking device to a vehicle constitutes a search under the Fourth Amendment and therefore requires a warrant, acknowledging that advancing technology creates new privacy concerns even in the context of vehicles.

f. Hot Pursuit: If officers are actively pursuing a suspect who enters private property while fleeing, they may follow without a warrant, even if the suspect has no connection to the property owner. This prevents escape, destruction of evidence, or harm to others. The rule was first recognized in United States v. Santana (1976). However, in Lange v. California (2021), the Court held that pursuit of someone on the run from committing a misdemeanor does not automatically justify a warrantless entry, requiring a case-by-case analysis of urgency and offense severity.

g. Open Fields Doctrine: The Fourth Amendment protects “persons, houses, papers, and effects,” but not open fields. Police may enter and observe unoccupied or undeveloped land outside the curtilage of a home without a warrant, since there is no reasonable expectation of privacy there. The term curtilage refers to the immediate area surrounding a home that is closely tied to the activities of domestic life, such as a fenced backyard, a patio, or a detached garage. These areas receive the same constitutional protections as the home itself because they are associated with privacy and family life. In contrast, land beyond the curtilage, like open farmland, wooded property, or a field far from the home, is not protected. For example, if officers walk several hundred feet past a home’s fenced yard into a nearby cornfield and discover marijuana plants in plain view, that observation is lawful because the area is considered an open field and not part of the home’s protected curtilage (Hester v. United States, 1924; Oliver v. United States, 1984). 

In United States v. Dunn (1987), the Supreme Court explained that no fixed distance determines the boundary of curtilage. Instead, courts apply a four-factor test to decide whether an area is protected: the proximity of the area to the home; whether the area is within an enclosure surrounding the home; the nature and use of the area; and steps taken to protect it from observation, such as fences, hedges, or privacy barriers. The Supreme Court has also ruled that aerial surveillance from public airspace does not violate the Fourth Amendment. In California v. Ciraolo (1986) and Florida v. Riley (1989), the Court held that police flying over a property at legal altitudes could observe evidence, such as marijuana plants in a greenhouse, without a warrant. However, in Kyllo v. United States (2001), the Court drew a line when technology was used to obtain details from inside a home, such as using thermal imaging to detect heat patterns inside the home.  

h. Exigent Circumstances and Community Caretaking/Emergency Aid Doctrine: The Supreme Court has long recognized that certain urgent or emergency situations allow officers to act without a warrant when obtaining one would endanger lives, allow evidence to be destroyed, or enable a suspect to escape. Police may enter a home to prevent harm during a domestic violence incident, chase a fleeing suspect, or stop the imminent destruction of evidence. The related community caretaking and emergency aid doctrines allow officers to act without a warrant when their purpose is to render aid, not conduct an investigation. In Cady v. Dombrowski (1973), the Court upheld a warrantless vehicle search to secure a firearm for public safety. In Brigham City v. Stuart (2006), officers entered a home to break up a violent altercation.  The protective sweep doctrine also permits officers to quickly check areas near an arrest for hidden dangers. Together, these doctrines balance public safety with the Fourth Amendment’s protection of the home (Maryland v. Buie, 1990).

i. Good Faith and Inevitable Discovery: These doctrines apply when officers act with an honest belief that their conduct is lawful. In United States v. Leon (1984) and Massachusetts v. Sheppard (1984), the Court held that evidence obtained in good-faith reliance on a warrant that was later found to be invalid due to a magistrate’s error may still be admissible. In Nix v. Williams (1984), the Court adopted the inevitable discovery doctrine, allowing evidence that would have been lawfully uncovered anyway to be admitted. Courts continue to debate how these two doctrines apply to modern digital forensics, and many states only allow these exceptions in narrow circumstances. 

j. Inventory Searches: When police officers lawfully take custody of property, such as when they impound a vehicle or book a suspect, they may inventory the contents to protect property, safeguard officers, and prevent theft claims. The search must follow standard departmental procedures and serve a legitimate, non-investigatory purpose (South Dakota v. Opperman, 1976). This includes items in a suspect’s bag or car, but not digital devices such as phones or computers, which require a warrant (Riley v. California, 2014).

k.  Search of Probationers and Parolees: Probation and parole officers may conduct warrantless searches of individuals under supervision if authorized by law and permitted in a signed supervision agreement. Most individuals faced with the opportunity to be on probation or parole instead of being incarcerated will sign supervision agreements that allow certain warrantless searches.  These conditions are part of avoiding or reducing incarceration, and such individuals will accept diminished privacy expectations (Samson v. California, 2006). Recent cases have addressed digital searches of phones and computers of those on probation and parole. Courts generally uphold them when tied to legitimate supervision goals but have warned against overly broad or arbitrary searches. (United States v. Lara, 2016; United States v. Fletcher, 2023).

l. Student Search Exception: In New Jersey v. T.L.O. (1985), the Supreme Court ruled that kindergarten through grade twelve administrators may search students based on reasonable suspicion rather than probable cause to maintain safety. The search must be reasonable in scope, conducted by an administrator or School Resource Officer, and consistent with school policy. In the digital era, many state courts using the Riley standard have held that while schools may seize phones for safety or discipline, searching the phone’s content usually requires a stronger justification, such as individualized reasonable suspicion or a warrant-like standard.  Later cases have upheld suspicionless drug testing of student athletes and extracurricular participants if the program serves a legitimate interest in preventing drug use, imposes only minimal intrusion on privacy, and applies uniformly to students who voluntarily choose to participate in those activities and agree to their rules (Vernonia School District v. Acton, 1995; Board of Education v. Earls, 2002, Gallimore et al v. Henrico County School Board, 2014).

m. Border and Checkpoint Searches: Routine searches at borders, airports, or checkpoints do not require warrants or probable cause. The government’s interest in security allows inspection of people, luggage, and vehicles. For digital devices, courts distinguish manual from forensic searches. Most circuits permit warrantless manual searches of phones but require reasonable suspicion for any forensic data extraction. Body-cavity searches at borders require reasonable suspicion and must be medically appropriate. TSA searches are limited to aviation safety and cannot be used for general law enforcement unless contraband is found in plain view (United States v. Montoya de Hernandez, 1985; United States v. Cano, 2019; Alasaad v. Mayorkas, 2021).

n. Administrative or Regulatory Searches: Administrative searches ensure compliance with health, safety, and regulatory laws, not criminal enforcement. Examples include housing inspections and workplace safety checks. In Camara v. Municipal Court (1967), the Court held such inspections valid if conducted under a neutral plan, though an administrative warrant is required if entry is refused. Administrative warrants require only a showing that the inspection is part of a reasonable regulatory scheme. These searches are deemed reasonable when limited in scope, conducted under established procedures, and not used as pretext for criminal investigation (New York v. Burger, 1987;  Skinner v. Railway Labor Executives’ Ass’n, 1989; Michigan Department of State Police v. Sitz, 1990).

0. Abandonment: When people abandon property, such as leaving trash for pickup or fleeing a vehicle, they lose any reasonable expectation of privacy in what they discarded. Police may search or seize the items without a warrant because the person has voluntarily relinquished ownership and any privacy interests. This principle was established in California v. Greenwood (1988), where the Supreme Court ruled that police did not need a warrant to search trash left on the curb for collection. The Court reasoned that once garbage is placed outside for pickup, it is accessible to the public and therefore no longer private. The abandonment rule also applies when suspects drop personal items while fleeing or leave vehicles unattended after a crime.

C. Investigations and Arrests 

1. Original Language of the Fifth 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 offence 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.”— U.S. Const. amend. V

2. Modern "Translation" of the Fifth Amendment

• No person can be tried for a serious federal crime without a grand jury indictment.

• A person cannot be tried twice for the same offense (Double Jeopardy).

• No one can be forced to testify against themselves (Right against self-incrimination).  

• No one can be deprived of life, liberty, or property without due process of law.

• Private property cannot be taken for public use without fair compensation (Takings Clause).

3. Important Cases 

A grand jury is a group of 16 to 23 citizens who decide whether the government has probable cause to charge someone with a felony. If they determine that sufficient evidence exists, they issue what is called an indictment, a formal charge. If not, they return what is known as a “no true bill.” The Founders created this requirement in the Fifth Amendment for federal cases in order to provide a screening process before citizens could be formally charged with serious crimes. A grand jury differs from a trial jury, also known as a “petit jury,” because a grand jury decides only whether there is enough evidence for a case to proceed to trial, while a petit jury determines whether the defendant is guilty beyond a reasonable doubt at the end of a trial. Not all states rely on grand juries for state-level charges (Hurtado v. California, 1884). Some states instead allow prosecutors to bring charges through a process called an information, which is a formal written accusation filed directly by the prosecutor after a preliminary hearing, without involving a grand jury.

The Fifth Amendment also prohibits Double Jeopardy, which means that defendants cannot be charged twice for the same offense.  This principle prevents the government from prosecuting or punishing someone more than once for the same criminal act after an acquittal or conviction. It reflects a commitment to fairness and finality in criminal proceedings, ensuring that individuals are not subjected to repeated trials or government harassment (Green v. United States, 1957). The Supreme Court clarified the scope of this protection in several key cases. In Blockburger v. United States (1932), the Court established the Blockburger test, which asks whether each charged offense requires proof of a fact that the other does not. If two offenses each contain an element the other lacks, they are considered distinct crimes, and prosecution for both crimes does not violate Double Jeopardy. However, when one offense is a lesser-included offense of another, meaning it contains no elements beyond those in the greater charge, a person cannot be separately prosecuted for both. For example, if someone is acquitted of first-degree murder, they cannot later be tried for the lesser-included charge of manslaughter arising from the same act (Brown v. Ohio, 1977). 

The ban on Double Jeopardy also limits retrials. Once a defendant is acquitted, the government cannot appeal or retry the person for that same offense, even if new evidence emerges (United States v. Ball, 163 U.S. 662, 1896). A significant limitation to this protection is the dual sovereignty doctrine, reaffirmed in Gamble v. United States (2019), which allows both federal and state governments to prosecute the same act if it violates their separate laws. In other words, an individual can face federal and state charges for the same conduct without violating Double Jeopardy because each government is considered a distinct sovereign with its own authority to enforce its laws. The Gamble case is very controversial and many think it should be overturned. 

Perhaps the most famous part of the Fifth Amendment is the right against self-incrimination. No one can be forced to testify against themselves at a trial.  Additionally, no one can be forced to make incriminating statements during a police interrogation or arrest. In Escobedo v. Illinois (1964), the Supreme Court ruled that a criminal suspect has the right to consult with an attorney during police questioning once the investigation begins to focus on that person as a suspect. Danny Escobedo was arrested on suspicion of murder and repeatedly asked to speak with his lawyer, who was present at the police station but was denied access. During several hours of interrogation without counsel, Escobedo made incriminating statements that were later used against him at trial. The Court held that his Sixth Amendment right to counsel and Fifth Amendment privilege against self-incrimination had been violated. It reasoned that when the police investigation shifts from a general inquiry to focusing on a particular suspect, and the suspect requests an attorney but is denied one, any resulting confession cannot be admitted as evidence. This Escobedo case was a major step toward protecting suspects’ rights during custodial interrogation and directly paved the way for Miranda v. Arizona.

In Miranda v. Arizona (1966), the U.S. Supreme Court held that the Fifth Amendment’s protection against self-incrimination requires police to inform suspects of certain rights before questioning them while in custody. The Court ruled that any statement obtained during a custodial interrogation is inadmissible unless the suspect has been clearly informed of these rights and has voluntarily waived them. Before any questioning begins, police must advise the suspect of the following Miranda warnings:

• The right to remain silent.

• Anything said can and will be used against them in a court of law.

• The right to consult with an attorney and to have the attorney present during questioning.

• If they cannot afford an attorney, one will be appointed to represent them before any questioning if they so desire.

Once a suspect is informed of these rights, the police must make sure the suspect understands the warnings and that any waiver of them is knowing, and voluntary. If a suspect invokes the right to remain silent or requests an attorney, all questioning must stop immediately. Although the Miranda decision does not require police to give these warnings during arrests when no interrogation occurs, most law enforcement agencies choose to do so as a standard precautionary policy.

The Fifth Amendment also guarantees that “no person shall be deprived of life, liberty, or property, without due process of law.” This protection applies to all people within the United States, not just citizens. In Reno v. Flores (1993), the Supreme Court confirmed that undocumented immigrants are entitled to due process protections under the Constitution. The case arose after a group of minors from Central America were detained by the Immigration and Naturalization Service, the former name for ICE. The Court reviewed the government’s policy of holding undocumented children in secure facilities while awaiting immigration proceedings. Although the Court ultimately upheld parts of the policy, it emphasized that noncitizens, especially children, still have the right to fair treatment while in government custody. The adequacy of how these rights are applied to undocumented individuals will be discussed later in this chapter.

Because due process is such a broad principle and refers to fair treatment at every stage of a legal proceeding, precedent cases that reference it are examples are abundant. The Powell v. Alabama case is a classic example of procedural due process because it involved the denial of fair legal representation and a host of other trial rights. A more recent example is Glossip v. Oklahoma (2025), in which the Court held that a criminal defendant is entitled to a new trial when the prosecution knowingly fails to correct false testimony and that error could have contributed to the verdict.

The final part of the Fifth Amendment, known as the Takings Clause, states that “private property [shall not] be taken for public use, without just compensation.” This clause protects property owners from government seizure of land without fair payment, most often in eminent domain cases where property is taken for projects like highways or schools. It guarantees that property owners receive just compensation, typically the property’s fair market value. The Takings Clause applies to civil property disputes, not criminal cases. If a person’s property is seized as evidence or forfeited as part of a lawful criminal sentence, that is not considered a “taking” under the Fifth Amendment. Forfeiture is governed instead by criminal and civil forfeiture laws, which allow the government to permanently seize property connected to criminal activity, such as money, vehicles, or real estate used in or obtained through the commission of a crime.

D. Evidence

Evidentiary rules in criminal courts are extremely complex. Some of these rules are rooted in constitutional rights, while others are not. The detailed study of these rules is better suited for a course focused specifically on criminal law and procedure. Section B of this chapter already examined evidentiary issues governed by the Fourth Amendment when focusing on searches and seizures of physical evidence.  Section C of this chapter examined evidentiary issues governed by the Fifth Amendment when focusing on confessions and incriminating statements, which are considered testimonial evidence. Together, these concepts offer a basic foundation for understanding evidentiary rules as they pertain to the rights of the criminally accused. However, two additional concepts are worth mentioning here: hearsay and the “fruit of the poisonous tree” doctrine.

The rules regarding hearsay are extremely detailed and include dozens of exceptions. Hearsay is defined as “any out-of-court statement offered at trial to prove the truth of what it asserts.” In plain English, it is when someone tries to testify about what another person said outside the courtroom. Using hearsay is problematic because the person who made the statement cannot be cross-examined, which violates confrontation rights. For this reason, hearsay is generally not admissible. However, there are many exceptions, such as confessions and dying declarations. These rules, including their exceptions, are governed by both federal and state evidentiary rules (Federal Rules of Evidence 801–804).

The fruit of the poisonous tree doctrine was first recognized in Silverthorne Lumber Co. v. United States (1920) and later reinforced in Wong Sun v. United States (1963). This rule provides that if police obtain evidence illegally, then any evidence that flows from that illegal act cannot be used in court either. It operates as an extension of the exclusionary rule. In simple terms, if the original evidence (the “tree”) was gathered in violation of the Constitution, then any later evidence (the “fruit”) is also “poisoned.” For example, if police conducted an unlawful search and discovered a list of names, and then used that list to locate additional evidence or witnesses, all of that information would be excluded because it “grew out of” the unlawful search.

There are a few exceptions to the fruit of the poisonous tree doctrine. Evidence may still be allowed if it was found from an independent source, such as a legal search that was separate from the illegal one, or if it would have been inevitably discovered anyway. Additionally, if enough time or events have passed since the illegal search occurred, it can remove the “taint” of the original illegality, a principle known as attenuation in criminal cases (Nix v. Williams, 1984; Utah v. Strieff, 2016).

Additionally, many evidentiary rules relate to what happens during the trial and sentencing phases rather than during searches, investigations, or arrests. These include procedures governed by the Sixth Amendment, such as the right to confront witnesses and the right to effective counsel. These topics, along with other modern evidentiary and procedural issues, will be addressed in the next chapter.

E.  Current Challenges

There are many present-day situations involving the rights of the criminally accused that are not spelled out in the language of the Fourth and Fifth Amendments. The framers could not have predicted many of the legal and practical challenges that exist today. This section looks at two modern examples that raise these issues: ICE raids and the rapidly changing legal rules surrounding technology and cybercrime.

1. ICE Raids*

Please note that this section was written prior to the ICE Raids in Minnesota.  It will be updated in the future. In the meantime, use the sources below to stay informed about ICE activity and immigration enforcement practices. 

• Boston Globe - Immigration Unmasked:  Gives readers unique insights and reporting about the ways in which President Trump’s mass deportation policy is playing out in communities across Massachusetts. 

• Deportation Data Project: Provides publicly available data on ICE arrests, detentions, and deportation trends, allowing readers to track enforcement patterns over time.

• American Civil Liberties Union (ACLU): Publishes updates on lawsuits, policy challenges, and constitutional concerns related to ICE and CBP enforcement practices.

• The New York Times – “Can ICE Do That?”: Offers explanatory reporting that helps clarify what ICE is legally permitted to do and how courts and communities are responding. (Contact your campus library to get information about how to bypass the paywall for this article.)

Below is the subsection of this chapter that was written, prior to the deployment of ICE to Minnesota: 

Many Americans have read news stories about ICE raids and wonder how such actions can occur given the constitutional protections regarding searches and due process discussed in this chapter. In reality, there are clear constitutional limits on home entry and warrant requirements that apply to immigration agents, despite what may appear in television or social media portrayals. Like local police, ICE agents cannot legally enter a home without a valid warrant. However, it is important to understand that not all warrants are the same. There is a critical difference between judicial warrants and administrative warrants.

A judicial warrant is a court order signed by a judge or magistrate based on probable cause that a crime has been or is being committed. It specifies the exact address to be searched, describes the person or property involved, and limits when and how the search can occur. It is signed by a judge and has a court caption like "Commonwealth of Massachusetts v. Jones" on it that references the name of the underlying court case.  By contrast, an administrative warrant is issued by a federal agency such as the Department of Homeland Security (DHS) or Immigration and Customs Enforcement (ICE) and is signed by an ICE officer, not a judge.

Administrative warrants authorize ICE to arrest individuals suspected of violating immigration laws, but they do not permit ICE to enter private residences without consent. If ICE agents arrive at a home with only an administrative warrant, individuals have the right to refuse entry by stating they do not consent and are advised to refrain from  displaying any signs of physical resistance. If it is safe to do so, individuals should keep their front doors closed and locked and ask agents to slide any warrant under the door. This allows residents to review the document and confirm whether it is a judicial warrant before deciding whether to open the door (Motion Law, 2025).

These raids, arrests, and detentions have been the subject of numerous lawsuits against the federal government, demonstrating that constitutional guarantees still exist but are not always upheld in practice. Understanding the difference between warrant types helps citizens and non-citizens alike recognize their rights during immigration encounters. 

For more information about these protections, visit the “Know Your Rights” section of the Massachusetts Immigrant and Refugee Advocacy (MIRA) Coalition website.  The resources include visual aids that help people understand the difference between judicial and administrative warrants  (Massachusetts Immigrant and Refugee Advocacy Coalition, n.d.).  Ongoing court challenges over these raids illustrate how the boundaries of government authority and individual rights continue to evolve under constitutional scrutiny.

2. Cybercrime

The constitutional rules that govern cybercrime and digital evidence are another area of law that is still evolving.  This chapter already discussed how police must obtain a warrant to search mobile phones and computers when arresting suspects (Riley v. California, 2014). When it comes to digital surveillance, the government might need to gather evidence long before an arrest because an investigation is necessary to determine the identity of those engaged in criminal activity.  The laws regarding digital surveillance were once rooted in the USA PATRIOT Act, which expanded investigative powers after the September 11 attacks. However,  the PATRIOT Act is no longer in effect.  Today, digital surveillance frequently operates under the Foreign Intelligence Surveillance Act (FISA), which allows secret courts to approve national security-related searches and electronic monitoring.  FISA warrants require the government to show probable cause that the target is a foreign power or agent of one.  Oversight of FISA courts has become more stringent following criticism of overreach and privacy violations (Electronic Privacy Information Center [EPIC], n.d.).

In Carpenter v. United States (2018), the Supreme Court ruled that the government must obtain a search warrant before accessing historical cell-site location information (CSLI) from phone companies. The Court held that individuals have a reasonable expectation of privacy in the detailed location data their phones generate, even though that data is held by third parties. This decision significantly reshaped digital privacy law by limiting the long-standing “third-party doctrine,” which previously allowed law enforcement to access records held by service providers without a warrant.

Modern cybersearch warrants can now extend to online communications, encrypted data, and cloud storage accounts. Under the Stored Communications Act and the CLOUD Act, law enforcement may seek warrants compelling companies such as Google, Apple, or Microsoft to turn over user data, even if that data is stored on servers outside the United States. However, these warrants must be specific about what information is sought, and courts increasingly require narrow, particularized requests to avoid violating the Fourth Amendment. 

The Electronic Communications Privacy Act (ECPA) builds on these principles by establishing rules for when the government can intercept or access electronic communications, while the Computer Fraud and Abuse Act (CFAA) criminalizes unauthorized access to computers and digital networks.  Police officers and prosecutors frequently enroll in professional development courses to keep up to date on cybercrime regulations and this ever-changing area of the law. 

Together, these statutes form the backbone of federal cybercrime law and help define when accessing or collecting digital evidence constitutes a lawful search. There are numerous other laws that govern online privacy, hacking, surveillance, and electronic evidence, and a complete understanding of these topics would require a separate course focused specifically on cybercrime and digital forensics.

Conclusion

The rules about searches, investigations, arrests, and evidence are meant to protect people’s rights while allowing the government to keep the public safe. Court decisions continue to shape how these protections apply to U.S. citizens, especially as technology and political actions create new challenges. Knowing these principles helps students understand how constitutional rights still guide the criminal justice system today.

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Please note that the URLs listed below are presented as plain text rather than active hyperlinks in order to avoid triggering automated security filters.

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