The Criminal Process
The Court System: Search and Seizure
The Fourth Amendment of the U.S. Constitution safeguards “the people” in their “persons, houses, papers and effects” from “unreasonable” searches and seizures.
The
The Criminal Process
The Court System: Search and Seizure
The Fourth Amendment of the U.S. Constitution safeguards “the people” in their “persons, houses, papers and effects” from “unreasonable” searches and seizures.
The amendment relies primarily upon requirement of a search warrant, issued “upon probable causes, supported by oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized.”
In recent years situations involving questionable searches have often been in the news and the courts. Search without a warrant, “plain sight,” “probable cause,” “furtive gesture” and “no knock” have been among the issues.
The U.S. Supreme Court ruled in 1973 that police may make a complete search of anyone under lawful arrest. The ruling came in two cases in which drugs were found after routine stops for traffic offenses. The Supreme Court has given the police even greater authority to conduct searches in recent years.
The exclusionary rule of evidence bars the use of evidence obtained through an illegal search of seizure.
A law enforcement officer may make an arrest when:
1. A crime is committed in his or her presence,
2. He or she has trustworthy information that a crime has been committed and the suspect is involved or
3. He or she has an arrest warrant, known technically as a capias. Such a warrant is issued on the filing of a complaint.
A formal complaint must be filed before a criminal prosecution can proceed.
Usually the complaint originates when an offense has been committed and a suspect identified. This generally involves an appearance by officers or citizens before a city magistrate, a justice of the peace or in some places a prosecuting attorney.
The suspect may or may not be in custody. If the suspect is not in custody a complaint is filed and an order is issued for the arrest of the suspect. If the suspect is in custody the formal complaint must be made against the arrested party within a reasonable time.
The procedures by which complaints are filed vary from county to county within the state. They may even vary between the county and a city in that county. One of the main ways in which the procedure varies is with the type of offense.
In traffic violations, for example, the individual usually is not detained physically. Instead a citation or “ticket” is written. But the citation will probably be processed as a complaint in the office of the appropriate clerk.
Misdemeanors may be filed before a city magistrate, a justice of the peace or in the office of the county or district attorney. In most counties, the county attorney prosecutes misdemeanors, the district attorney felonies. In urban counties the district attorney’s office handles all criminal matters.
Felony complaints are usually filed in justice of the peace courts, but they don’t have to be. They may be filled before city magistrates. Some counties use a procedure whereby felony complaints are accusatory affidavits sworn before the district attorney or assistant. Such a procedure constitutes filing.
Misdemeanors and felonies are classified according to the relative seriousness of the offense into three categories each.
An individual adjudged guilty of a misdemeanor is punished according to the law as follows:
Class A: A fine not to exceed $4,000 and/or confinement in jail for a term not to exceed one year.
Class B: A fine not to exceed $2,000 and/or confinement in jail not to exceed 180 days.
Class C: A fine not to exceed $500.
An individual adjudged guilty of a felony is punished according to the law as follows:
First Degree: Confinement in prison for life or for any term of not more than 99 years or less than five.
Second Degree: Confinement in prison not more than 20 years or less than two; in addition, a fine not to exceed $10,000 may be assessed.
Third Degree: Confinement in prison not more than 10 years or less than two; in addition, a fine not to exceed $ 5,000 may be assessed.
State Jail Felony: Confinement in a state jail not more than two years or less than 180 days; in addition, a fine not to exceed $10,000 may be assessed.
A capital felony is any crime for which any individual can be put to death.
Some offenses, not included in the revision of the Penal code in 1973, do not readily fall into class or degree categories, although they are designated felonies or misdemeanors. These are primarily regulatory and auxiliary, such as laws related to professions, trade and wild life. Many traffic and liquor-related laws are this way.
Misdemeanor Charges – Complaints and Informations
The complaint filed in criminal cases proceeds differently according to whether the offense is classified as a felony or as a misdemeanor. Felony cases go to the grand jury, misdemeanors do not.
Procedures for handling misdemeanor complaints vary according to the severity of the offenses and from county to county.
For example, in Class C cases the complaint may be the only document filed and a trial may be held based only on the complaint. But in Class A and Class B and equivalent regulatory cases, complaints may be followed by “an information.”
In some counties the complaint is filed with a justice court and a suspect is jailed or released on bond while the report on the arrest is sent to the district attorney’s office. There “an information” is prepared, based upon the complaint, and the case is 