Throughout this book, you will read excerpts of cases from four levels of courts: the United States Supreme Court, the United States Courts of Appeals, state supreme courts, and intermediate appellate state courts (see Figure 1.1). Most excerpted cases are United States Supreme Court cases. The United States Supreme Court has the final word in interpreting the United States Constitution. The United States Constitution, particularly its Bill of Rights, has much to say about criminal procedure, as you will see throughout this book.

Sometimes, you will read United States courts of appeals cases. These intermediate federal appellate courts sometimes deal with issues not yet decided by the Supreme Court, and they apply the rules set by the Supreme Court to other cases.

Occasionally, you will also read cases from state courts. State cases are important for two reasons. First, virtually every state has a bill of rights similar to and often identical to the United States Bill of Rights. States interpret and apply their constitutional provisions for themselves. Second, many criminal procedure cases originate, and frequently terminate, in state courts. In other words, the day-to-day judicial administration of criminal justice takes place in state courts, not the United States Supreme Court, or even the federal district courts (the federal trial courts) and courts of appeals, (the intermediate federal appellate courts). The Supreme Court reviews only a few of the tens of thousands of decisions made by police officers, prosecutors, trial judges, and state appellate courts.

Keep the following points in mind when you read the case excerpts:

1. The title. The title in criminal cases always contains at least two names. The first name refers to the party that brought the action. It is always the government at the trial stage because the government initiates all criminal cases in the United States. The v. is an abbreviation of the Latin versus, meaning "against." The second name refers to the party against which the action was brought. In Bostick v. State, for example, the title tells us that a person named Bostick appealed a decision by the state, in this case the state of Florida.
2. The citation. The citation consists of the letters and numbers following the case title. The citation tells what court heard the case, when the court decided the case, and where you can find the case reported. The case citation, like a footnote, endnote, or other reference in articles and books, reveals the source of the material quoted or relied upon. In Bostick v. State, the citation 554 So.2d 1153 (Fla. 1989) means that you can find the case published in volume 554 of the Southern Reporter, second series, beginning on page 1153, and that the Florida Supreme Court decided the case in 1989. In legal citations, the numbers that appear before the title refer to a specific volume in a set of reports; the numbers following the title refer to the page on which the report of the case begins. The abbreviation and words between the volume and the page numbers refer to the title of the publication reporting the case, in this case the Southern Reporter. If the case appears in more than one publication, references to these other publications also appear. For example, Supreme Court cases appear in three major publications: United States Reports, abbreviated to simply U.S.; Supreme Court Reporter, abbreviated S.Ct.; and Lawyer’s Edition, abbreviated L.Ed.
3. Appellate cases. Most cases in this textbook are appellate court cases. This means that a lower court has already taken some action in the case and one of the parties has asked a higher court to review the lower court’s action. Parties seek appellate review of what they claim were errors by the trial court or unlawful conduct by police, judges, prosecutors, or defense lawyers. Sometimes, a convicted defendant appeals. Only defendants can appeal convictions; moreover, the government cannot appeal acquittals. However, many appellate reviews arise out of proceedings prior to trial. Both the government and the defendant can appeal pretrial proceedings.
4. Suppression hearings. Many cases involving alleged police misconduct arise out of what defendants maintain were erroneous rulings on pretrial motions to exclude evidence at proceedings called suppression hearings. Bostick v. State is a review of a ruling at a pretrial suppression hearing. According to Bostick, the police obtained drugs from a search that violated the Fourth Amendment. In a suppression hearing held before his trial, Bostick’s lawyer moved to suppress, or exclude, the drugs from being used as evidence at the trial. The trial judge ruled that the evidence was admissible. Bostick appealed to the Florida Supreme Court, which reversed the trial court’s ruling because, the Florida Supreme Court held, the seizure of the evidence violated the Fourth Amendment. Florida appealed to the United States Supreme Court. That case, Florida v. Bostick (note that the order of parties changes), you will read in chapter 4.
5. Appealing parties. The cases refer variously to parties that seek review of lower-court decisions. Most commonly, the appellate courts refer to the party who appeals as the appellant and to the party appealed against as the appellee. Both of these terms originate from the word appeal. A petitioner is a defendant whose case has come to the higher courts by petition. The principal petitions are certiorari, Latin for "to be certified," and habeas corpus, Latin for "you should have the body." Habeas corpus, a collateral attack, or separate proceeding from the criminal case itself, requires jailers, prison administrators, and others who hold defendants in custody to justify the detention of defendants who have petitioned the higher court to hear their cases. You can tell these proceedings by their title. Instead of a government name and a person’s name in the title, you will find two persons’ names, such as Adams v. Williams (Adams was the warden of the prison holding Williams; Williams was the prisoner).

Certiorari is discretionary; it does not require appellate courts to hear appeals. The Supreme Court grants only a small percentage of petitions for certiorari. It grants certiorari not because of the individual litigants, but because a case raises an important constitutional issue affecting large numbers of individuals. Most appeals to the United States Supreme Court are based on writs of certiorari, which are orders to lower courts to send up their proceedings for review. Four of the nine Supreme Court justices must vote to review a case—a requirement known as the rule of four—for the Court to hear the appeal on certiorari. The Court turns down most of these petitions, but those it accepts often make important law.

In the excerpts of older cases, you will find yet another name for the party that appeals. The older cases refer to the plaintiff in error, the party that claims the lower courts erred in their rulings.

6. The opinions. Most of the cases, particularly those of the United States Supreme Court, have at least two types of opinions, and sometimes three. The majority opinion, if one exists, is the law in the case. The United States Supreme Court has nine members; each has a vote and the right to submit an opinion. If all justices participate, five, a majority, can make the law. If the five agree to both the reasoning and the judgment or decision, the opinion is called a majority opinion. Sometimes, justices agree with the decision, or result, in the case, but they do not agree with the reasons for the decision. They write separate, concurring opinions, giving their own reasons for the decision.

If a majority of the justices agree with a result in the case but they cannot agree on the reasons for the result, the opinion with the reasoning agreed to by the largest number of justices is called a plurality opinion. Suppose, for example that seven justices agree with the result and four give one set of reasons, three give another set of reasons, and two dissent. The opinion to which the four subscribe is the plurality opinion. If justices do not agree with the court’s decision, whether plurality or majority, they can vote against the decision and write their own dissenting opinions explaining why they do not agree with either the reasoning, the result, or both. Often, the dissenting opinions point to the future; many majority opinions of today are based on dissents from the past. The late Chief Justice Charles Evans Hughes once said a dissent should be "an appeal to the brooding spirit of the law, to the intelligence of a future day."

The conflicting arguments and reasoning in the majority, plurality, concurring, and dissenting opinions will challenge you to think about the issues in the cases because, most of the time, all of the justices convincingly argue their views of the case. First, the majority’s and the concurring justice’s arguments will convince you; then, the dissent will lead you to the opposite conclusion. This interplay teaches you an important point: Plausible arguments support both the government’s position and the defendant’s position in most cases. Reasonable people do disagree!

You will notice that all of the arguments in the majority, concurring, and dissenting opinions refer frequently to other cases that the court in this case or some other court has decided in the past. The prior cases are called precedent. The judges draw upon precedent to support their decisions because of the doctrine of stare decisis. The doctrine requires that once courts have decided cases, these prior decisions (precedent) bind later courts to follow them. The doctrine applies only to the prior decisions of their own court or courts superior to them in their own jurisdiction (the geographical area or the subject matter over which the court has the authority to make decisions).

Supreme Court Justice and respected judicial philosopher Benjamin Cardozo once said about precedent and the doctrine of stare decisis:

[ex]It is easier to follow the beaten track than it is to clear another. In doing this, I shall be treading in the footsteps of my predecessors, and illustrating the process that I am seeking to describe, since the power of precedent, when analyzed, is the power of the beaten path.

The idea of precedent is not peculiar to the law of criminal procedure, nor is it the basis only of legal reasoning. We are accustomed to the basic notion of precedent in ordinary life. We like to do things the way we have done them in the past. For example, if a professor asks multiple-choice questions covering only material in the text on three exams, you expect that the fourth examination will resemble the three prior exams. If the professor, on the fourth exam, gives you an essay examination covering material you heard in class but that did not appear in the text, you may not like it.

Not only may you not like it, you will probably think it is "unfair." Why? Precedent—the way we have done things before—makes life stable and predictable. Knowing what to expect, and counting on it, guides our actions in the future so that we can plan for and respond to challenges and solve problems. Changing this without warning seems unfair. In ordinary life, then, as in criminal procedure, following past practice gives stability, predictability, and a sense of fairness and justice to decisions.

Of course, doing things as we have done them, although comfortable, is not always right or good. Sometimes it also becomes uncomfortable. When that happens, we change, often reluctantly, and do things differently; these changes themselves become guides to future action. So, too, with legal precedent. Courts may change precedent, although they do so reluctantly. Courts, like individuals in ordinary life, do not like to change, particularly when it requires that they admit they were wrong. That is why, as you read the cases in this book, you will find few that overrule prior decisions. Instead, when courts wish to change, they will do so by distinguishing cases. This means that a court decides that a prior decision does not apply to the current case because the facts are different. For example, the rule governing the right to counsel in cases punishable by death need not be the same as the rule governing the right to counsel in a case involving a petty misdemeanor punishable by a fine.

Throughout the book, as you read the case excerpts and even the discussion in the text, you should keep in mind the importance of precedent and the doctrine of stare decisis in the law of criminal procedure. You should notice whether the decisions are following past cases or breaking new ground.

7. Questions. To guide your reading and get the most out of the case excerpts, answer these questions about each case:

Do not expect to answer all these questions fully, at least not at first. The remaining chapters elaborate upon the answers to these questions.

Reproduced here is a full case with no editing. I have annotated it so that you can understand all of the parts of the case. The annotations appear in italics and inside brackets ([ ])The annotations should help you to read and to understand the edited cases that appear in the excerpts throughout the book. Furthermore, it should aid you in reading and understanding cases you may wish to look up for yourself or which your instructor assigns to you.

Anthony L. TOGNACI, Appellant, v. STATE of Florida, Appellee.

[This is the full title of the case. Ordinarily, when cited in other works, you will only see the part of the title in capital letters, that is, in this case Tognaci v. State.]

No. 89-1097.

[This is the docket, or file number, given to the case by the clerk of the court.]

District Court of Appeal of Florida, Fourth District. Dec. 12, 1990.

[This is the name of the court that heard the case and the date the court decided it.]

571 So.2d 76

[This is the citation of the case, telling you that you can find it reported in volume 571 of the Southern Reporter, second series (So.2d) at page 76.]

In a narcotics prosecution, the Circuit Court, Broward County, Mel Grossman, J., found that the consensual search of the defendant did not intrude into impermissible areas, and defendant appealed. The District Court of Appeal, Warner, J., held that trial court’s determination that search did not exceed its scope when female officer searched male defendant’s crotch area was not clearly erroneous where it was not clear from the evidence that the officer actually touched the defendant’s genitals.

Affirmed.

Walden, J., concurred in result only.

[This is the syllabus of the court, a summary that is not part of the official record but which helps readers get a brief and quick view of the case.]

[1] Searches and Seizures k197

349k197

Trial court’s determination that consensual search of narcotics defendant did not exceed its scope when the female officer searched the male defendant’s crotch area was not clearly erroneous; it was not clear from the evidence that the officer actually touched the defendant’s genitals.

[These are the famous headnotes in the West Key notes system established by West Publishing Company. The headnotes provide brief summaries of the main points of law in the case. Furthermore, they direct lawyers and students to other cases and discussions dealing with any topic in the key system. Notice here the topic is Search and Seizures, the key number is 197. Many subheadings occur under searches and seizures, as you will see below. Each headnote is numbered in brackets (here[1]) so that you can match it to the paragraph or paragraphs in the court’s opinion that discusses this point. See below [1] bracketed paragraph number in opinion.]

[2] Searches and Seizures k186

349k186

Persons encountered by law enforcement personnel in the public area of airport terminals, bus stations or train stations do not reasonably expect that their consent to the officer’s search of their "person," without more, would include intimate contact with the genital area.

Harry Gulkin of Harry Gulkin, P.A., Fort Lauderdale, for appellant.

Robert A. Butterworth, Atty. General, Tallahassee, and Sylvia H. Alonso, Asst. Atty. Gen., West Palm Beach, for appellee.

[These are the names of the prosecutors and the lawyers who argued the case for the defendant on appeal.]

WARNER, Judge.

We affirm on the authority of U.S. v. Blake, 888 F.2d 795 (11th Cir. 1989), in that we cannot conclude that based on the totality of the circumstances before the court that the trial court’s factual determinations were clearly erroneous.

[This is the decision of the court. Notice that the court relies on another case, U.S. v. Blake, to support its decision. This is the most common form of what is called legal reasoning, that is, comparing and contrasting cases already decided to back up what the court decides in this case.]

[1] [This bracketed number tells you that the paragraph refers to the first headnote at the beginning of the opinion.] The issue in this case [the issue is the legal question in the case] is whether the consensual search of the defendant exceeded its scope when the female officer searched the male appellant’s crotch area. From the totality of the circumstances an affirmance is warranted mainly because it is not clear from the evidence that the officer actually touched appellant’s genitals. [Here the court is applying the law of consent searches to the facts of this case. See chapter 7 for a discussion of searches.] The testimony indicated that after receiving permission to search appellant’s person, Officer Cutcliffe noticed a bulge "a little bit higher than where his male organs would be, normally." She pointed out for the court where she saw and touched the bulge, and her partner who actually removed the object from the appellant’s pants testified that the narcotics package was taped between his belt and the top of his zipper. Therefore, the court could reasonably conclude that this search did not intrude into impermissible areas. [These are the facts of the case, that is, it tells us what happened in the case, the critical events as found by the trial court that raised the legal issue in the case.]

[2] [Here begins the opinion of the case, that is, the part of the case in which the court states the law and then applies the law to the facts of the case, using legal reasoning and argument.] However, we feel compelled to comment on what appears to be a routine investigative procedure used in the Broward County Sheriff’s Office as revealed by the testimony in this case. The deputies are trained to make random encounters of the traveling public in airport terminals, bus stations, and train stations. They secure the person’s "voluntary" consent to search the "person" and then proceed to search the crotch and genital area of the person without notifying them of the fact that they intend to search this most private area of the body in a public place. Officer Cutcliffe testified that she has searched hundreds of men’s crotches without discovering any contraband. She has also searched women in the same fashion. We emphasize that these encounters are random, not generated by any articulable suspicion of wrongdoing, nor by a drug courier profile, nor by a fear for the officer’s safety. And at least based upon the hundreds of searches which do not produce any drugs, we conclude from the testimony that the genital search is not a very effective investigative tool in stopping the drug trade. [In this paragraph the court is going beyond the law and giving its opinion on the police practices used here. This is not law and lawyers cannot use it as such.]

If the Fourth Amendment means anything, it means that we citizens should be free from unreasonable searches of the most private areas of our bodies. We would agree with Federal District Judge Roettger in U.S. v. Blake and Eason, 718 F.Supp. 925 (S.D.Fla., 1988), that a person encountered by law enforcement in the public areas of an airport terminal could not reasonably expect that a consent to search their "person," without more, would include intimate contact with the genital area. [Here again, you see the common form of legal reasoning and argument, that is, to rely on the words, decisions, opinions, and facts of other cases to support the position taken in the present case.] That would be even more true under the facts of this case where a female officer is searching a man. Cf., e.g., Sterling v. Cupp, 44 Or. App. 755, 607 P.2d 206 (1980), as modified, 290 Or. 611, 625 P.2d 123 (1981); Madyun v. Franzen, 704 F.2d 954 (7th Cir. 1983), cert. denied, 464 U.S. 996, 104 S.Ct. 493, 78 L.Ed.2d 687 (1983); Smith v. Fairman, 678 F.2d 52 (7th Cir. 1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983) (all of which recognize that even a male prison inmate has a right of privacy against a frisk of the genital area by a female guard.) [Notice here the use of a number of cases that supposedly support the court’s conclusion that it is a greater invasion of privacy for a female to touch the genitals of a man, and presumably vice versa. You could look up these cases in order to determine if they do or do not support the court’s conclusion.]

Thus, this decision should not be read as a stamp of approval to the search procedure employed in this case. It just so happens that the search conducted revealed drugs in an area which could be within the legitimate scope of the consent before it extended to more private areas of the defendant’s anatomy.

POLEN, J., concurs.

[Judge Polen concurs but did not write a concurring opinion. In the U.S. Supreme Court, many of whose opinions you will read in this book, judges who concur almost always write special concurring opinions either emphasizing something the majority did not or even disagreeing with the arguments and reasoning of the majority, but agreeing with the majority’s final conclusions in the case.]

WALDEN, J., concurs in result only.

[Judge Walden obviously does not agree with the reasoning of the court, but he does concur in the decision that the search was lawful. We do not know why because no concurring opinion was filed in this case.]