Criminal Law Part B : Week 2 : Criminal investigations, search and seizures | Quizlet

Procedural steps in criminal cases : location of the search for evidence in them

1. Criminal investigations

> Looking for evidence
An initial inquiry by officers to establish the facts and the circumstances of the suspected crime and to identify and preserve any evidence related to that crime
Objective : find the truth ( not an absolute goal )
Mainly conducted by the police on instructions of the public prosecutor
Coercive measures ( ex : dna test, search , wire tapping ) and human rights and the rule of law


2. Decision to prosecute
3. Preparation of the trial
4. Trial
5. Verdict > execution of sanction
6. Appeal and cassation proceedings

Criminal investigations in the USA

Common Law > adversarial type of proceedings

Federalist judicial system

Sources : US Constitution and Amendements ( 4th, 5th, 6th ), case law

Judge > only here to regulate proceedings and investigation ( make sure everything is done according to the law )

> Key role of the Supreme Court

Seizure of Persons : Types of seizures in the US :

- Consensual encounters
- Terry stops
- Arrests

Seizure of Persons : Types of seizures in the US : Consensual encounters

allowed at any time

Seizure of Persons : Types of seizures in the US : Terry Stops

( Terry v. Ohio ) 'reasonable articulable suspicion' is needed ( ex : car stop )

Seizure of Persons : Types of seizures in the US : Arrest

' probable cause' is needed ( must be objective facts that lead to believe that someone was involved in a criminal offence ) is needed ( 4th amendment + see Mack ) ( high level of intrusion )

Search of Places and Person : US : Relevant Amendement of the Constitution

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."

Applicabilty of the Fourth Amendement for Search of Places and Person

Applicability > Katz s. Us ( 1967 )

Broad interpretation of "search"

The fourth amendment applies if the person involved exhibited and actual ( subjective ) expectation of privacy and that the expectation is one that society is prepared to recognized as reasonable

Search of Places and Person : When is a search lawful ?

Probable cause : the place to be searched contains evidence of criminal activity

Search warrant : prior judicial approval is necessary > judge is neutral, thus objective > make search constitutional rights are respected

Exceptions :
Exigent circumstances ( emergency ) ( however probable cause still required ) , automobile exception, safety, consent, search incident to arrest

Criminal investigations in the Netherlands

Civil Law

Sources of Law : the Dutch Constitution ( Grondwet ), and national statutes ( CPP 1926 ), and national case law. Also supranational law ( f.e. ECHR )

Criminal investigations : police ( politie), public prosecutor ( Openbaar Ministerie ) and investigating judge ( rechter-commissaris )

Supreme Court > not binding to smaller courts

Criminal investigations in the Netherlands : Seizure of Persons :

Central notion : suspect > when reasonable suspicion that he is committing or has committed a criminal offence exists > when authorities have several powers

Criminal investigations in the Netherlands : Seizure of Persons : Three requirements :

Suspicious conduct must constitute a criminal offence

The suspicion must be reasonable ( not merely subjective )

Objective reasonable suspicion must exist at the moment of application of the police power

> ECHR : reasonable suspicion " presuppose the existence of facts or information which would satify an objective observer that the person concerned may have committed an offence " > Art 5 ECHR

Art 5 (1) ECHR

Art 5 (1 ), under c ECHR ( read in conjunction with para. 3 )

No one shall be deprived of his liberty > except > list of conditions and situations
Very clear and precise
Autonomous interpretation of the term deprivation
The deprivation of liberty > must be in accordance with a procedure prescribed by law > means that the detention must conform to substantive and procedural rules of national law :
1) National law must be clear and possible
2) The national law must not allow for arbitrary or excessive detention

Art 5 ( 3) ECHR

> Speed + reasonable time for trial > must always be read in conjunction with 1 under c

Two requirements :

1. Procedural requirement

The judicial officer must see the detainee in person before making a decision on remand.

2. Substantive Requirement

The judicial officer must review and consider the merits of detention. Including the ability to determine:

- Lawfulness of detention
- That there is a reasonable suspicion that the arrested person committed the alleged offence
- Whether detention is justified

The judicial officer also must (at the very least) possess the power to make a binding order for release of the detainee

Interpretation of Article 5 ECHR > Brogan and Other v Uk ( 1988) > understanding of 'promptly'

4 days and 6 hours > too long ( c. 62 )

Since Brogan any pre-trial detention period over 4 days is not considered to qualify under 'promptly'

The are no exception to the 'promptly' rule

Now must be brought before a judge within four days of pre trial detention > does not mean you can only be detained for only 4 days

Article 5(1)(c) + 5(3) > Joint reading

If lawful arrest or detention of someone on:

Suspicion of committing a crime; or
To prevent the commission of a crime; or
To prevent their flight

Then the detainee has two rights:
1. Right to be brought 'promptly' before a judicial officer; and
2. Right to be released within a reasonable time

Article 5(2) ECHR

'Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. '

> Applies to everyone arrested
> Must be told promptly
> She/he must be informed of the essential factual and legal basis for the arrest
> She/he must be told this in a simple language understood by the arrestee

Article 5(4) ECHR

' Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.'

Summary of Article 5 ECHR Guarantees

In case of arrest or detention:

Guarantees at the beginning:

5(1) ECHR:

State can only arrest or detain someone if included within the list of (1)

Reasonable suspicion is required to make arrest or detain
(1(c) and Lawless)

Purpose of arrest or detention must be to bring the accused before an adjudicating authority (1(c) and Brogan)

5(2) ECHR:
Codifies procedural requirements

5(3) ECHR:
Arrestee/detainee must be brought promptly before a
judge (Brogan/Lawless)

Guarantees at a later stage:

5(3): trial within reasonable time or to release - to discuss in WG
5(4): habeas corpus proceedings

Dutch law on seizure of persons :

Stop (police):
art. 52 CCP (Code of Criminal Procedure)

Traffic stop: under the Road Traffic Act (Art. 160 WVW)

Arrest (anyone/police/public prosecutor):
artt. 53 and 54 CCP

Police custody (by the public prosecutor):
artt. 57 - 59 CCP

Art. 59a CPP: the arrestee must be brought before the investigative judge within three days and 18 hours (cf. Brogan and Others v. UK)

Pre-trial detention (by the court):
artt. 60 ff. CCP

Searches and Art. 8 ECHR : 8(1) ECHR

Art 8 (1 ) > gives the scope + broad def

The right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

Test for Violation of Article 8 ECHR

1. Is the alleged interference covered by the scope of Article 8(1)?
(eg: private life, home or correspondence)

2. If YES, was the interference (by public authority) justified?

A. Was the interference in accordance with the (domestic) law?

B. If YES, was the interference undertaken in pursuance of one of the goals set out in Art. 8(2)?

C. If YES to A and B, was the infringement necessary in a democratic society?

Art 8 (2) > gives exceptions

Comparison US vs. Netherlands: Seizures

Legal sources for criminal investigations :

US > cases interpreting the Fourth Amendment to the U.S. Constitution
Netherlands > the Constitution, the CCP and other national statutes (which must comply with Article 5 ECHR)

Are there categories of searches?

US > Terry stops, arrests, formal custody
Netherlands > (traffic) stops, arrests, police custody and pre-trial detention

Basis for a police stop:

US > reasonable articulable suspicion
Netherlands > reasonable suspicion

Basis for an arrest:

US > probable cause and warrant (with many exceptions)
Netherlands > reasonable suspicion and orders/warrants from higher authorities with emergy exception

Comparison US vs. Netherlands: Searches

Legal source:

US : cases interpreting the Fourth Amendment to the U.S. Constitution
Netherlands : the Constitution, the CCP and other national statutes (which must comply with Art. 8 ECHR)

When is search law applicable?

US : When the individual has a reasonable expectation of privacy
NTL : When the state authorities have interfered with an individual's private life, home or correspondence

Basis for a search:

US : Probable cause and warrant
NTL : Search is based in law, necessary, and serves a legitimate aim + reasonable suspicion


Exceptions:

US : exigent circumstances, consent, searches incident to arrest, and automobile searches
NTL: exigent circumstances or consent