Constitutional Law      Unit 3     Dr. Mike WilkieCJ 202 Constitutional Law   Bob Jones University
The Second Amendment• "A well regulated militia being necessary to  the security of a free state, the right of the  people...
The Debate• Interview• Balancing Individual States’ and Individual  Rights  – Prefactory Clause-purpose  – Operative-actio...
Commerce Clause• Article 1, Section 8, Clause 3• Link
United States v.       Miller, 307 U.S. 174 (1939)• US v Miller• National Firearms Acts (1934)• Passed in response to the ...
Government’s Arguments in Miller• NFA was a revenue collecting measure,  legitimate authority• Defendants had crossed stat...
Two Important Decision Points in                Miller• Of a shotgun with less than 18 inch barrel  – “…we cannot say that...
Stevens v. United States, 440 F.2d 144            (6th Cir. 1971)• Felon in possession of firearm case  – violation of Tit...
Right Now• Right Now
District of Columbia v. Heller, 554 U.S.               570 (2008• 2nd protects individual’s right to own• Facts of case de...
McDonald v. Chicago, 561 U.S.            3025 (2010• Tested if 2nd Amendment applies to the states  – Question for class: ...
Questions?
Chapter 8The Fourth Amendment
Text of the Fourth Amendment• "The right of the people to be secure in their  persons, houses, papers, and effects, agains...
History of the 4th• Constitutional limit on government authority• Response to “writs of assistance” or general  warrants w...
The Judge• Judge Napolitano on the 4th
Key Terms (p. 194)•   Articulable facts         •   Good faith•   Bright line               •   Probable cause•   Exclusio...
Wire Diagram pp. 196-197• Note the diagram for a good explanation of  how it works
Importance of the 4th to LE• Defines the powers of the police to search for  evidence• Protects the rights of the citizens...
Kentucky Case• Warrantless searches in exigent circumstances• Kentucky v King
Application of the 4th  Wolf v. Colorado, 338 U.S. 25 (1949• Originally applied to the federal government• Applied to the ...
Clauses of the 4th• Reasonableness Clause  – Right against unreasonable search and seizure not    violated• Probable Cause...
What Is Reasonable?• Reasonable=sensible, rational, justifiable  – May vary with circumstances• Scenario: Police are obser...
Tests of Reasonableness                Bright Line• “Bright Line”• A specific rule of the court• Example, LE officer takes...
Tests of Reasonableness               Case by Case• Reasonableness determined by totality of  circumstances  – This is why...
Probable Cause• “A crime has probably been committed  because….”  – Followed by facts observed by or information    known ...
Search Warrants• Government believes evidence of a crime exists and is  inside a home or other private space• What are the...
Arrest Warrants• Supported by affiant’s statement    – Usually LE officer•   Name, Describe Person•   State Offense•   Pro...
Stop and Frisk• “Terry” Stop  – Terry v. Ohio, 392 U.S. 1 (1968)  – No violation of 4th if stopped by police on    reasona...
Search Incident to Arrest• Subject of Arrest• Immediate areas of control• Adjacent areas in a home “security sweep”
Questions?
Exclusionary Rule• “Judge made law”  – Court is giving guidance in application of    Constitutional restriction (my words)...
Weeks v. United States, 232 U.S. 383               (1914)• December, 1911, Government officers entered  home of Fremont We...
Mapp v. Ohio, 367 U.S. 643 (1961)• Unreasonable search and seizure• Application of 4th amendment search and  seizure to th...
Silverthorne Lumber Co. v. United       States, 251 U.S. 385 (1920)• Federal agents seized financial records during  inves...
Inevitable Discovery• Nix v. Williams, 467 U.S. 431 (1984)• Arrested Williams, YMCA worker, charged with murder of 10 year...
Harmless Error• Exception to the Exclusionary Rule• “tainted evidence” is not critical to proving  guilt• Preponderance of...
Good Faith Exception• Officers are not aware of 4th amendment  violations (technical error on warrant)• Test is did govern...
United States v. Leon, 468 U.S. 897                (1984)• SCOTUS created “good faith” exception to  exclusionary rule• Dr...
Leon-Exclusionary Rule would apply if        Three Circumstances• Magistrate abandoned neutral and detached  role• Officer...
Conflicts of State and Constitutional                   Law• State restrictions do not prevail over  Constitutional standa...
Questions?
Chapter 9Conducting Constitutional Seizures
Introduction•   When is a stop and arrest?•   Factors in length of time of stop.•   When is Miranda issued?•   Elements of...
Table 9.1 Stop v Arrest                        chart p. 233Justification          Reasonable Suspicion     Probable CauseW...
Investigatory Stops• Establishing reasonable suspicion  – Articulable facts of criminal activity  – Particularized and obj...
Adams v. Williams, 407 U.S. 143 (1972)• Use of informants, anonymous tips• Facts   – Informant told police suspect had her...
Florida v. J.L., 529 U.S. 266 (2000)• Miami-Dade police received anonymous tip,  young black male, plaid shirt, bus stop, ...
Illinois v. Wardlow, 528 U.S. 119 (2000)• Runnin’ from the Po-Po• Facts   – Chicago Police patrolling high crime/drug area...
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Constitutional law unit 3

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  • https://www.youtube.com/watch?v=_fHJcSsC0aY
  • http://www.law.cornell.edu/constitution/articlei#section8
  • US v MillerPassed in 1934 at a time when my parents were about to be married (1938) and $20 per week earnings they thought they were rich!
  • http://www.oyez.org/cases/1901-1939/1938/1938_696 Jack Miller and Frank Layton charged in Arkansas with violation of the NFPA. Cornell http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html
  • http://www.conservapedia.com/Stevens_v._United_States
  • https://www.youtube.com/watch?v=93nKjrtDbJg
  • http://www.oyez.org/cases/2000-2009/2009/2009_08_1521NSSF interview http://video.search.yahoo.com/video/play;_ylt=A2KLqIBq2jVRdlsAWjr7w8QF;_ylu=X3oDMTBrc3VyamVwBHNlYwNzcgRzbGsDdmlkBHZ0aWQD?p=mcdonald+v+city+of+chicago+decision&vid=977e2d463763b08603f8184c02f294fb&l=10%3A44&turl=http%3A%2F%2Fts3.mm.bing.net%2Fth%3Fid%3DV.4792827910029478%26pid%3D15.1&rurl=http%3A%2F%2Fwww.youtube.com%2Fwatch%3Fv%3DfWLc0c3kIPE&tit=Analysis+of+McDonald+Gun+Rights+Decision+%28Part+1%29&c=2&sigr=11aeto76k&fr=yfp-t-900-s&tt=b
  • http://www.britannica.com/EBchecked/topic/215219/Fourth-Amendment
  • http://video.search.yahoo.com/video/play;_ylt=A2KLqIC.zjdRxzwAaVn7w8QF;_ylu=X3oDMTBrc3VyamVwBHNlYwNzcgRzbGsDdmlkBHZ0aWQD?p=fourth+amendment&vid=3551cf63484605d629e05dfb7bf4d430&l=5%3A03&turl=http%3A%2F%2Fts2.mm.bing.net%2Fth%3Fid%3DV.4649706755784841%26pid%3D15.1&rurl=http%3A%2F%2Fvideo.foxbusiness.com%2Fv%2F1177003224001%2Ftarget-the-fourth-amendment&tit=Target%3A+The+Fourth+Amendment&c=7&sigr=128asnpvd&fr=yfp-t-900-s&tt=b
  • http://video.search.yahoo.com/video/play;_ylt=A2KLqIC.zjdRxzwAaVn7w8QF;_ylu=X3oDMTBrc3VyamVwBHNlYwNzcgRzbGsDdmlkBHZ0aWQD?p=fourth+amendment&vid=3551cf63484605d629e05dfb7bf4d430&l=5%3A03&turl=http%3A%2F%2Fts2.mm.bing.net%2Fth%3Fid%3DV.4649706755784841%26pid%3D15.1&rurl=http%3A%2F%2Fvideo.foxbusiness.com%2Fv%2F1177003224001%2Ftarget-the-fourth-amendment&tit=Target%3A+The+Fourth+Amendment&c=7&sigr=128asnpvd&fr=yfp-t-900-s&tt=b
  • p. 202
  • p. 206. United States v Miller. 2nd Amendment type of case. Prosecution under the National Firearms Act of 1934 which was passed in response to the St. Valentine’s Day massacre. The acts required registration of automatic weapons and short-barrel shotguns, $200 tax at time of purchase and if resold. SCOTUS held that Miller was not unconstitutional, no violation of 2nd.
  • In Terry, Cleveland Police Detective Martin McFadden observed two then three men “casing” a jewelry store, followed them, confronted, identified as a police officer, grabbed John Terry by coat and spun him around, felt what believed to be a revolver in coat pocket. P.212
  • p. 215
  • http://supreme.justia.com/cases/federal/us/232/383/case.html
  • 1957 Cleveland, Ohio, police had a tip that a person wanted in a bomb making case was hiding in house of Dollree Mapp. She refused entry. They later returned with a paper supposed to be a warrant. She seized and stuffed it into the bosom. Officers got it back. Trial court convicted her of possessing pornography. Appeals affirmed. SCOTUS overturned. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0367_0643_ZO.html
  • http://www.law.cornell.edu/supremecourt/text/251/385The district attorney repudiated the means employed by the seizure, but wanted to keep the evidence.
  • http://supreme.justia.com/cases/federal/us/467/431/
  • http://supreme.justia.com/cases/federal/us/428/465/case.htmlAfter committing robbery of a liquor store and killing store owners wife, Powell arrested for vagrancy violation. Weapon found incident to the arrest, six spent shell casings in revolver, tied to murder scene.
  • Patsy Stewart and Armando Sanchez,drug dealers identified by tip to police. Began surveillance. http://www.oyez.org/cases/1980-1989/1983/1983_82_1771
  • The need of the particularized basis precludes officers from just stopping everyone they want to stop. http://supreme.justia.com/cases/federal/us/449/411/case.html
  • http://supreme.justia.com/cases/federal/us/407/143/case.html. SGT John Connolly, patrol, 0215, Bridgeport, Connecticut. Key element was suspect’s refusal to exit vehicle, merely rolling down the window. Court recognized elevated risk to officer’s safety.
  • “A police officer may not legally stop and frisk anyone based solely on an anonymous tip that simply described that person's location and appearance without information as to any illegal conduct that the person might be planning.”http://www.oyez.org/cases/1990-1999/1999/1999_98_1993/
  • Question-could the police stop the car, approach Wardlow, and ask him what he had in the bag?http://www.law.cornell.edu/supct/html/98-1036.ZS.htmlOfficers Nolan and Harvey gave chase when Wardlow ran upon observing a “caravan of police vehicles”“Unprovoked flight is the exact opposite of “going about one’s business.” While flight is not necessarily indicative of ongoing criminal activity, Terry recognized that officers can detain individuals to resolve ambiguities in their conduct…”
  • Constitutional law unit 3

    1. 1. Constitutional Law Unit 3 Dr. Mike WilkieCJ 202 Constitutional Law Bob Jones University
    2. 2. The Second Amendment• "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.“• Historical context – Independence – Limited Government
    3. 3. The Debate• Interview• Balancing Individual States’ and Individual Rights – Prefactory Clause-purpose – Operative-action taken
    4. 4. Commerce Clause• Article 1, Section 8, Clause 3• Link
    5. 5. United States v. Miller, 307 U.S. 174 (1939)• US v Miller• National Firearms Acts (1934)• Passed in response to the St. Valentine’s Day Massacre – Required registration of certain weapons (barrel length shotgun, fully automatic – Required taxation ($200 in 1934 money) – Demurrer challenge (note p. 173 definition)
    6. 6. Government’s Arguments in Miller• NFA was a revenue collecting measure, legitimate authority• Defendants had crossed state lines, triggering commerce clause• Second Amendment only protects military- type weapons (compare that with today)• Weapon used in case was not a military weapon
    7. 7. Two Important Decision Points in Miller• Of a shotgun with less than 18 inch barrel – “…we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.“• Of the militia – “when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.“• Reversed and Remanded
    8. 8. Stevens v. United States, 440 F.2d 144 (6th Cir. 1971)• Felon in possession of firearm case – violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 – 6th circuit appeals case• Court stated no express right of people – Only right is state right to have a militia
    9. 9. Right Now• Right Now
    10. 10. District of Columbia v. Heller, 554 U.S. 570 (2008• 2nd protects individual’s right to own• Facts of case denied applicant a permit for handgun to keep at home (DC police officer Dick Heller) , ordinance violation in DC• Struck down provision of Federal Control Regulations Act of 1975 – Unconstitutional banning of “arms” (handgun) – Right to own firearm not connected to militia – Recognized traditionally lawful purpose of defending the home – Did not establish to carry any firearm at any time for any reason, regulation left to states – 5-4 ruling (a close one!)
    11. 11. McDonald v. Chicago, 561 U.S. 3025 (2010• Tested if 2nd Amendment applies to the states – Question for class: If the court finds that it does, on what authority would this apply to the states?• Gun bans implemented by City of Chicago• Held: The Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states.• NSSF interview
    12. 12. Questions?
    13. 13. Chapter 8The Fourth Amendment
    14. 14. Text of the 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."
    15. 15. History of the 4th• Constitutional limit on government authority• Response to “writs of assistance” or general warrants which British officers would use to search Colonist’s homes• Every man’s home is his castle
    16. 16. The Judge• Judge Napolitano on the 4th
    17. 17. Key Terms (p. 194)• Articulable facts • Good faith• Bright line • Probable cause• Exclusionary • Reasonable• Frisk • Search• Fruit of poisonous tree • Seizure • More terms (see p)
    18. 18. Wire Diagram pp. 196-197• Note the diagram for a good explanation of how it works
    19. 19. Importance of the 4th to LE• Defines the powers of the police to search for evidence• Protects the rights of the citizens from unreasonable search – Not all search – Recognizes that the government must have some power to police, but regulated• Considers the “means” as well as the “end”
    20. 20. Kentucky Case• Warrantless searches in exigent circumstances• Kentucky v King
    21. 21. Application of the 4th Wolf v. Colorado, 338 U.S. 25 (1949• Originally applied to the federal government• Applied to the states in Wolf by 14th – Dr. Julius Wolf convicted of conspiracy to perform criminal abortions
    22. 22. Clauses of the 4th• Reasonableness Clause – Right against unreasonable search and seizure not violated• Probable Cause Clause – No warrant without probable cause• Courts have viewed as two separate clauses since 1960s• Critical concepts – Reasonableness – Reasonable expectation of privacy – Probable Cause
    23. 23. What Is Reasonable?• Reasonable=sensible, rational, justifiable – May vary with circumstances• Scenario: Police are observing a home, CI makes a “buy” from home, CI says more inside, multiple team members. Is getting a warrant reasonable?
    24. 24. Tests of Reasonableness Bright Line• “Bright Line”• A specific rule of the court• Example, LE officer takes a person into custody, begins to question about a crime, suspect makes admission of guilt, describes evidence and location• Officer did not give Miranda Warning prior to questioning about the case
    25. 25. Tests of Reasonableness Case by Case• Reasonableness determined by totality of circumstances – This is why good, complete police reports are necessary• Balance individual rights against rights of society
    26. 26. Probable Cause• “A crime has probably been committed because….” – Followed by facts observed by or information known to a LE officer – Observation or “on view” arrest, violation witnessed by officer
    27. 27. Search Warrants• Government believes evidence of a crime exists and is inside a home or other private space• What are the requirements of the 4th? – Place to be searched – Thing to be seized – Usually will have some period of time in which it is valid.• Knock and Announce – United States v. Miller, 307 U.S. 174 (1939) – Can be exceptions for “no knock” in state’s laws – Other state laws may restrict time, days of service (Sundays e.g.)• Must provided copy
    28. 28. Arrest Warrants• Supported by affiant’s statement – Usually LE officer• Name, Describe Person• State Offense• Provide Copy• Read the charges/warrant
    29. 29. Stop and Frisk• “Terry” Stop – Terry v. Ohio, 392 U.S. 1 (1968) – No violation of 4th if stopped by police on reasonable suspicion – Outer clothing “pat down” if reasonable suspicion they are armed• Requires articulable facts, no hunches
    30. 30. Search Incident to Arrest• Subject of Arrest• Immediate areas of control• Adjacent areas in a home “security sweep”
    31. 31. Questions?
    32. 32. Exclusionary Rule• “Judge made law” – Court is giving guidance in application of Constitutional restriction (my words)• Prevents evidence from being illegally seized and used for prosecution• Mapp v Ohio 367 U.S. 643 (1961
    33. 33. Weeks v. United States, 232 U.S. 383 (1914)• December, 1911, Government officers entered home of Fremont Weeks, Kansas City, MO• NO search warrant, seized papers, suspected of transportation of lottery tickets via US Mail• Trial court convicted, appeals upheld• Held – “The warrantless seizure of documents from a private home violated the Fourth Amendment prohibition against unreasonable searches and seizures” Unanimous decision
    34. 34. Mapp v. Ohio, 367 U.S. 643 (1961)• Unreasonable search and seizure• Application of 4th amendment search and seizure to the states by the 14th amendment• Exclusionary Rule overcome by Inevitable Discovery
    35. 35. Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920)• Federal agents seized financial records during investigation of tax evasion• “But the rights of a corporation against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.”• “The Government now, while in form repudiating and condemning the illegal seizure, seeks to maintain its right to avail itself of the knowledge obtained by that means which otherwise it would not have had.”• Exclusionary rule case
    36. 36. Inevitable Discovery• Nix v. Williams, 467 U.S. 431 (1984)• Arrested Williams, YMCA worker, charged with murder of 10 year old girl• “Christian burial” speech• Defense sought to exclude body of deceased• Inevitable Discovery• “Under the inevitable discovery exception, the prosecution is not required to prove the absence of bad faith, since such a requirement would result in withholding from juries relevant and undoubted truth that would have been available to police absent any unlawful police activity.”• “Significant disincentives to obtaining evidence illegally -- including the possibility of departmental discipline and civil liability -- lessen the likelihood that the ultimate or inevitable discovery exception will promote police misconduct. Pp. 467 U. S. 445-446.”
    37. 37. Harmless Error• Exception to the Exclusionary Rule• “tainted evidence” is not critical to proving guilt• Preponderance of evidence suggests guilt
    38. 38. Good Faith Exception• Officers are not aware of 4th amendment violations (technical error on warrant)• Test is did government follow standard procedures?• Who erred? Magistrate?• Stone v Powell 428 U.S. 465 (1976) – Convicted of murder, California – Claimed unlawful search yielded murder weapon –
    39. 39. United States v. Leon, 468 U.S. 897 (1984)• SCOTUS created “good faith” exception to exclusionary rule• Drug surveillance case, 1981, California• Police observed homes, followed suspicious cars, wrote search warrant• Later determined PC lacking in affidavit• Evidence upheld because police relied on search warrant authority – Cited Mapp
    40. 40. Leon-Exclusionary Rule would apply if Three Circumstances• Magistrate abandoned neutral and detached role• Officers dishonest or reckless in affidavit or search warrant preparation• Officers could not have harbored objective reasonable belief in existence of probable cause
    41. 41. Conflicts of State and Constitutional Law• State restrictions do not prevail over Constitutional standards• Virginia v Moore (2008) – Driver arrested for suspended license – Searched incident to arrest. Drugs found. – Moore claimed evidence found in violation of state law. – “Not the province of the 4th amendment to enforce state law” Scalia.
    42. 42. Questions?
    43. 43. Chapter 9Conducting Constitutional Seizures
    44. 44. Introduction• When is a stop and arrest?• Factors in length of time of stop.• When is Miranda issued?• Elements of an arrest• Use of force or deadly in arrest• Immunity from arrest
    45. 45. Table 9.1 Stop v Arrest chart p. 233Justification Reasonable Suspicion Probable CauseWarrant None PreferableOfficer’s Intent Investigate Suspicious Formal Charge ActivitySearch Pat Down for weapons Full search for weapons, evidenceScope Outer Clothing Area in suspects’ immediate controlRecord Minimal (field notes) Fingerprints, photographs, and booking
    46. 46. Investigatory Stops• Establishing reasonable suspicion – Articulable facts of criminal activity – Particularized and objective basis – “The process of assessing all of the circumstances does not deal with hard certainties, but with probabilities.”• Considers totality of circumstances – US v Cortez, 1981 – Border patrol case – Suspected of transporting people
    47. 47. Adams v. Williams, 407 U.S. 143 (1972)• Use of informants, anonymous tips• Facts – Informant told police suspect had heroin, handgun – Traffic stop, reached inside car, withdrew gun from suspect’s waistband, found heroin incident to arrest – Convicted, overturned, sent to SCOTUS• Court used Terry, officer had right to forcible stop, search, with belief suspect armed, reversed• “the policeman’s action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable.”
    48. 48. Florida v. J.L., 529 U.S. 266 (2000)• Miami-Dade police received anonymous tip, young black male, plaid shirt, bus stop, firearm.• Acting on tip alone, officers approached, arrested, seized firearm• Trial court granted motion to suppress, appeals reversed, upheld in state supreme court• SCOTUS held search unreasonable, not “suitably corroborated” even though exactly accurate where handgun was located• 9-0 unanimous ruling.
    49. 49. Illinois v. Wardlow, 528 U.S. 119 (2000)• Runnin’ from the Po-Po• Facts – Chicago Police patrolling high crime/drug area – Sam Wardlow holding a bag.• Trial court convicted, state appeals reversed• SCOTUS held fleeing in “high crime” area enough to have reasonable suspicion• “flight at the mere sight of police is a sign that there exists reasonable suspicion that criminal activity is afoot.”• “must be at least a minimal level of objective justification for the stop.”• 5-4 decision

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