Criminal procedure are the rules that shape how police, lawyers, and judges within the criminal system are to act. Primarily, our discussion will fall onto the behavior of police. Society has sought to put limits on police, creating rules that are designed to limit negative behavior while still encouraging police to have a positive impact on the community.

There are three overarching themes:

  1. Questions about state power and authority. Where does the state get its authority and what are the tools given to the police?
  2. Balancing concerns between criminal accountability and systematic fairness. This principle can be seen well in the Meares article cited below.
  3. Finally, where do the criminal procedure rules come from? Clearly we have the Constitution (4th, 5th, and 6th Amendments), Supreme Court Opinions, other courts, statutes and city codes, formal manual, and informal policies.

Police as Providers of Service

The police are meant to “protect and serve.” This goal has the natural consequence of police efforts to provide service outside of enforcing the law. For instance, Oregon’s statute authorizes police to perform “community caretaking functions.” Oregon Revised Statutes § 133.033. This include the right to help injured or ill persons, find missing persons, manage traffic, etc. More than 50% of the officer’s time is spent in this caretaking mode, rather than in the enforcement mode.

Caniglia v. Strom

141 S. Ct. 1596 (2021).

Caniglia was the plaintiff who lost and appealed.


Whether “caretaking” duties creates a doctrine that justifies warrantless searches and seizures in the home.


The fourth amendment protects “unreasonable” searches and seizures. Community caretaking alone is not reasonable.


Reversed and remanded.


The plaintiff and his wife got into an argument where the plaintiff pulled out a gun and told his wife to shoot him. The wife refused and went to a hotel for the night. After not being able to contact the plaintiff the next day, she called the police and discovered the plaintiff at the home. The plaintiff denied he was suicidal but allowed himself to be taken to the hospital for an evaluation, as long as the police did not take his guns. After he left, the police removed two handguns from the home. As such, the plaintiff sued.


The lower court relied on a case called Cady to say that the caretaking responsibilities was a permissible reason to enter the home without a warrant and seize the guns.

However, the Court disagrees. The key distinction in Cady was that the seizure of a weapon for a caretaking responsibility occurred at a traffic stop, not within a home. There is no broad category of caretaking that can justify this fourth amendment violation. However, the court does not address whether other caretaking responsibilities could be a permissible justification.

Additional Notes

The difficulty here is deciding what is potentially a caretaking responsibility and what is a criminal enforcement. For instance, a police officer may initially provide service (rushing into a home to provide medical aid) and discover the makings of a crime.

There are a variety of tests to determine when the officer is being a community caretaker. An example of one is 1) facts that show a citizen must be in peril, 2) the officer can render assistance to the citizen is in need of aid, 3) after the citizen no longer needs aid, must obtain a warrant for any additional searches.

Policing Theories – Community Policing

Community policing refers to the community setting police standards for policing (through city council meetings) and the police following those standards. In other words, if the community wants the police to take more caretaking responsibility, they can. Same with limiting those responsibilities. This definition and the associated responsibilities can change from community to community.

Seth W. Stoughton, Principled Policing: Warrior Cops And Guardian Officers

51 Wake Forest L. Rev. 611 (2016).

Policing has a long and interesting history.

When policing institutions first became institutionalized, there was a heavy association with the political atmosphere. Officers often lived in the community and paid politicians for getting them a job. This had the positive effect of officers being heavily involved in the community (offering soup kitchens, etc.) but the negative consequence of political involvement and biased policing of community outsiders. This period is called the central organization era.

Eventually, policing changed and began emphasizing crime investigation. Police were often detached from the political sphere, but also became detached from the community. This is called the professional era.

Today, society is working to implement a community policing standard. However, this standard often struggles because institutions see it as another “program” that increases the workload of officers rather than a philosophy that officers should implement in every part of the practice.

Officers strive to meet a warrior ideal, to perform the job with honor, duty, resolve, and righteous violence. However, this resolve can cause issues when an officer demands respect (for their safety), a citizen sees the demand as arrogant and resists, and the disagreement begins to escalate.

The author then proposes a new ideal, to create a guardian culture. A guardian culture takes the same traits as a warrior and adds “respect for human dignity, empathy, patience, inclusivity, and introspection. The goal is to work with the community seeking consent rather than compulsion in policing efforts.

Tracey L. Meares, Norms, Legitimacy, and Law Enforcement

79 Or. L. Rev. 391 (2000).

This article focuses on an ill that arises because some areas have higher rates of crime than others. This is called the social organization theory. The idea is that for a society to function, it needs certain social elements. However, crime in an area currently leads to incarceration. With people off the streets, the logical reasoning is that there will be less crime. Unfortunately, this tends to be untrue. Instead, the theory is that the people taken off the streets play a role to a functioning society. With them off the streets the society falls into further disrepair and more crime escalates.

The author then provides a potential solution to this problem. Provide social organization benefits and provide legitimacy in law making. To do so, lawmakers should create laws that do not initially provide officers the authority to arrest. Instead the laws should seek to disrupt the illegal activity. If the activity continues, then arrest becomes an option. Additionally, lawmakers can increase the legitimacy of the laws by receiving the input from the community. If the community finds the laws just, they are more likely to comply.

In other words, problem solving and community policing (working together with the community) will lead to increased legitimacy and trust in the system.

Additional Notes

Most community policing programs now include activities such as neighborhood watch, partnering with schools for athletic activities or drug awareness, etc.


There are more than 17,000 police agencies within the United States. Each have somewhat of a unique format (although there are many similarities). For this reason, it can be difficult to provide uniform police standards.

Herbert L. Packer, Two Models of the Criminal Process

113 U. Pa. L. Rev. 1 (1964).

The two models employed within police agencies are the crime control and the due process models.

The crime control model focuses on controlling the crime in as efficient a manner as possible. Run through the stages, do your job, and close the file. As far as the litigation process goes, this means quickly removing those who are probably innocent and charging those who are probably guilty. The ultimate goal: finality of a case, typically in the form of a guilty plea. In other words, this approach seeks to focus on informal processes and minimizing the role of the judiciary. The number of convictions is the tool of measuring success.

The due process control is more willing to sacrifice efficiency for getting the right answer. Take your time, make sure that the investigation work is totally done so that the innocent are definitely innocent and the guilty are definitely guilty. This means that ultimately the investigation and trial process will last much longer, and anticipate appeals (perhaps several) before the finality of a case.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.