Criminal Procedure and the Constitution

As far as they were concerned, Clayton Searle, a Los Angeles narcotics detective, and the federal drug agent with him were just doing their jobs on March 15, 1991, when they noticed a black man walking toward them. The pair had just arrested a suspected drug courier who they believed was there to pick up a shipment of cocaine. When the black man was about 40 feet away, he abruptly turned, set down his attaché case, and walked to a row of pay telephones. The two police officers moved in and began questioning their new suspect. A heated argument followed, which ended with the black man falling or being thrown to the floor. He finally was handcuffed and led off for questioning.

The suspect was Joe Morgan, a broadcaster for ESPN and a former Cincinnati Reds second baseman who was inducted into the National Baseball Hall of Fame. Morgan sued the agents and the city of Los Angeles for false arrest, illegal detention, battery, excessive use of force, false imprisonment, and intentional infliction of emotional distress. Morgan claimed the police had unfairly targeted him because of his race and because he fit the profile of a drug courier. A federal jury awarded Morgan $540,000 in this lawsuit. After the trial, Morgan told reporters, “I didn't do it for the money. I believe in law and order, but it has to be applied to the police as well as everyone else.”

The late Justice William O. Douglas would agree with Joe Morgan. “A civilized system of law is as much concerned with the means employed to bring people to justice, as it is with ends,” Douglas once said, “A first principle of jurisprudence is that the ends do not justify the means.”

Criminal procedure

Criminal procedure is a branch of constitutional law concerned with the rules of law governing the procedures by which authorities investigate, prosecute, and adjudicate crimes. Specific provisions of the U.S. Constitution restrict the police. In addition, state constitutions, federal and state statutes, court decisions, and administrative rules circumscribe how the police gather information and deal with criminal suspects. The framers of the U.S. Constitution sought to balance the government's interest in crime control with the privacy and liberty rights of innocent, suspected, and convicted individuals. Two provisions of the Constitution apply specifically to balancing police powers and citizens' rights—the Fourth and Fifth Amendments.

  • 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.”

  • The Fifth Amendment: “No person … 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.”

Interpretation of the Constitution

Key words and phrases, such as “probable cause,” “unreasonable,” and “compelled,” need to be interpreted. Usually, the U.S. Supreme Court determines what the Fourth and Fifth Amendments mean. The Court decides, for example, whether the police must get prior judicial approval before undertaking a particular action or whether they can exercise discretion in choosing among alternative courses of action.

Criminal procedure as a zero-sum game

“Every time we make it easier to convict the guilty,” says Harvard legal scholar Alan Dershowitz, “we also make it easier to convict the innocent.” Making it easier to convict the guilty carries the costs of increasing the convictions of innocents and violating people's individual rights. In other words, there is a zero‐sum relationship between crime control and due process. As we expand one, we diminish the other.

The due process revolution and the crime control counterrevolution

During the 1960s, the Warren Court, led by Chief Justice Earl Warren, interpreted the Fourth and Fifth Amendments in ways that curtailed police powers and extended citizens' rights. Fourth and Fifth Amendment case law produced by the Warren Court's due process revolution (1961–1969) shielded Americans from police abuses of powers and protected individual rights.

In the 1970s, 1980s, and 1990s, the composition of the Supreme Court changed. Liberal justices retired and Republican presidents Nixon, Reagan, and Bush named their replacements, leading to the emergence of a new conservative majority on the Court. During the 1970s, under Chief Justice Warren Burger, and then during the 1980s and 1990s, under Chief Justice William Rehnquist, the Court has been lax about enforcing the Fourth and Fifth Amendments. The national trend has been toward increasingly broad latitude for law enforcement. The justices have been inclined to let illegally obtained evidence come before a jury, for the reason that the jury needs to know the facts, however those facts were obtained. The Burger and Rehnquist Courts chipped away at rules established by the Warren Court to safeguard citizens' rights. The result has been an expansion of police powers and a contraction of citizens' rights. This crime control counterrevolution is part of a larger public policy agenda that conservative politicians have been advocating ever since the Warren Court revitalized the Fourth, Fifth, and Sixth Amendments in the 1960s.