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Kenneth Agran's Investigative Criminal Procedure:
A Law & Order Casebook
Frequently Asked Questions

From time to time, I receive questions from students, professors, and other users of this site. I will post commonly asked questions here so that I can share my responses with everyone.

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1. How accurate are the LAW & ORDER episodes?
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Although many LAW & ORDER episodes were "ripped from the headlines" and inspired by actual crimes and other current events and controversies, the show was a work of fiction, and was never intended to provide a "reenactment" of any particular crime or court case. But in its depiction of the relevant cases and doctrines in Investigative Criminal Procedure, LAW & ORDER is extremely accurate. While writing the casebook, I watched every one of the 456 episodes, and I did not find a single instance in which the show, in my view, simply got the law wrong. Of course, there are many episodes where police, prosecutors, defense attorneys, and judges overlook certain issues or make mistakes, but that´s realistic too—in fact, these kinds of oversights and mistakes happen every day during criminal investigations and subsequent legal proceedings. Even though certain rules and legal principles may be clearly established, the police, attorneys, and judges working within the criminal justice system are not always aware of the rules, they may not fully understand them, or, in the "heat of the moment," they may not apply them correctly. The writers and producers of LAW & ORDER—many of whom were attorneys themselves—sought to capture these mistakes and failures of the criminal justice system, along with its many successes.

2. How is Justice Scalia´s death likely to affect the Supreme Court´s rulings in the area of Investigative Criminal Procedure?
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While Justice Scalia was a reliably conservative vote on many social and economic matters, he was not so easy to pigeonhole when it came to the constitutional issues in Investigative Criminal Procedure. Some of Scalia´s notable opinions seem decidedly "pro-police," including his majority opinion in Hudson v. Michigan (2009) that reflects doubt about the need for the exclusionary rule to deter police misconduct, and his dissenting opinion in Dickerson v. U.S. (2000) that describes Miranda as "a milestone of judicial overreaching." In many other important cases, however, Scalia parted ways with his conservative colleagues and was one of the Court´s strongest advocates for constitutional limits that protect individual privacy against intrusive overreach by the police. For example, Scalia authored the Court´s majority opinion in Kyllo v. U.S. (2001), holding that police perform a search under the Fourth Amendment when they use a thermal imaging device to detect heat emanating from inside a home. He wrote a similar majority opinion in Florida v. Jardines (2013), holding that the use of a narcotics detection dog to investigate the home and its immediate surroundings is a search within the meaning of the Fourth Amendment. In Maryland v. King (2013), Scalia wrote a blistering dissent from the majority´s decision upholding DNA testing of arrestees suspected of serious offenses; the following year, he wrote another strong dissent in Navarette v. California (2014), criticizing the majority´s holding that an anonymous 911 call reporting a single instance of reckless driving provides the reasonable suspicion necessary to support a traffic stop.

Shortly after Justice Scalia passed away, the Court heard oral argument in Utah v. Strieff (2016), and there was speculation that the Court might divide 4-4 along traditional liberal/conservative lines. As it turns out, Justice Breyer—who often joins Justices Ginsburg, Sotomayor, and Kagan to form a relatively liberal voting bloc on the Court—sided with his more conservative colleagues (Justices Kennedy, Thomas, Alito, and Chief Justice Roberts) and signed Justice Thomas´ majority opinion in Strieff that declined to apply the exclusionary rule to drug evidence that was found after an improper stop of a pedestrian led to the discovery of an outstanding arrest warrant. In Birchfield v. North Dakota (2016), another case decided after Justice Scalia´s death, the Court again avoided a 4-4 split and held that police may perform a warrantless breath test, but not a blood test, incident to an arrest for drunk driving.

With regard to certain areas of Investigative Criminal Procedure, there are significant points of agreement among all nine Justices of the Supreme Court. (See, for example, the Court´s near-unanimous decision in Riley v. California (2014), holding that the search incident to arrest exception to the warrant requirement does not permit police to explore the contents of an arrestee´s cell phone.) In still other areas of Investigative Criminal Procedure, exemplified by many of the cases described above, the traditional liberal/conservative battle lines are not always clearly drawn, and the Justices´ views and allegiances may change depending on the facts and doctrinal issues before the Court. Although Justice Scalia´s sudden death silences a powerful and effective voice, it does not appear—based on an admittedly limited sample of just two cases, Strieff and Birchfield—that his absence will leave the Court evenly split or pave the way for any dramatic doctrinal changes in cases involving Investigative Criminal Procedure.

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