Landmark 4th and 5th Amendment Essay

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On appeal, Terry argued that the conviction should be thrown out because the search that produced the evidence of the weapon in his possession was improper because it was an impermissible search of his person without a warrant or probable cause as required by the 4th Amendment (Schmalleger, 2009).

The Supreme Court decided that the type of search the police officer conducted was not prohibited by the 4th Amendment. Instead, it was a reasonable and appropriate means of ensuring the safety of the officer from concealed weapons in a tactical situation in which that concern was appropriate in light of the totality of the circumstances in which it occurred. While the 4th Amendment does prohibit more invasive searches with the intention of finding evidence of crimes, (such as for concealed contraband or of small containers), it does not prelude an external frisk now known as a Terry frisk or Terry stop, in which the police simply ensure their safety by identifying armed individuals in suspicious circumstances (Schmalleger, 2009).

In Miranda, the defendant was arrested on suspicion of rape and he was subjected to the custodial interrogation techniques that were typical of the era. He was deprived of comforts such as sleep, water, food, and a sanitary bathroom facility. He was interrogated aggressively until he produced a confession to the crime, on the basis of which he was convicted of rape. On appeal to the Supreme Court, the decision was reversed on the basis of the improper questioning and the deprivation of the defendant's opportunity to consult counsel before answering any interrogation questions. Miranda generated a series of specific obligations on the part of law enforcement personnel in connection with interrogating persons under arrest or in custodial custody (Zalman, 2008).

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While those changes are often referred to as "Miranda rights," they are actually not rights; they are rules with which police must comply to prevent confessions and other testimony elicited improperly from being excluded from the evidence available to the prosecution to introduce at trial (Hendrie, 1997).

In that regard, the Miranda rules require that, if evidence of confession is to be admissible, the accused must have been advised of the right to remain silent before custodial questioning; the accused must have been advised of the right to have counsel present before answering any questions; the accused must be advised that any statements will be used against him at trial; and police must immediately terminate any questioning once the accused indicates that he wishes to exercise his 5th Amendment right to refuse to answer questions or that he wishes to exercise his 6th Amendment right to counsel. In some states, police must also inform the accused that legal representation is available at no cost if necessary (Schmalleger, 2009; Zalman,

Continuing Evolution of American Criminal Procedure Post-Miranda

Certainly the 1960s-era changes to American criminal justice inspired by the Spano-Terry-Miranda line of cases radically changed American policing by eliminating constitutionally impermissible investigatory tools and practices that been used quite widely (Delatrre, 2006). However, police procedures have also evolved, sometimes impermissibly, to exploit apparent loopholes in applicable restrictions. One of the most common was addressed and expressly prohibited by the Supreme Court in 2005 (Hoover, 2005). Namely, the technique of purposely delaying formal arrest and the reading of the Miranda statement so that police could conduct a pre-arrest interview designed to elicit inculpating information, followed by formal arrest and reading of Miranda statements and statements about the information already elicited "outside" of.....

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