1. The document discusses the text and historical context of the Second Amendment and key Supreme Court cases related to the right to bear arms like Heller and McDonald. 2. It also covers Fourth Amendment search and seizure law, including requirements for warrants, probable cause, and exceptions like stop and frisk, search incident to arrest, and the exclusionary rule. 3. The roles of reasonable suspicion and probable cause in conducting legal stops, arrests, and searches are analyzed through Supreme Court cases like Terry, Wardlow, and Florida v. J.L. The differences between investigatory stops and arrests are also outlined.

1. Constitutional Law
Unit 3
Dr. Mike Wilkie
CJ 202 Constitutional Law
Bob Jones University

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. The Debate
• Interview
• Balancing Individual States’ and Individual
Rights
– Prefactory Clause-purpose
– Operative-action taken

4. Commerce Clause
• Article 1, Section 8, Clause 3
• Link

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. 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. 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. 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. Right Now
• Right Now

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. 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. Questions?

13. Chapter 8
The Fourth Amendment

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. 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. The Judge
• Judge Napolitano on the 4th

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. Wire Diagram pp. 196-197
• Note the diagram for a good explanation of
how it works

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. Kentucky Case
• Warrantless searches in exigent circumstances
• Kentucky v King

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. 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. 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. 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. 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. 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. 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. Arrest Warrants
• Supported by affiant’s statement
– Usually LE officer
• Name, Describe Person
• State Offense
• Provide Copy
• Read the charges/warrant

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. Search Incident to Arrest
• Subject of Arrest
• Immediate areas of control
• Adjacent areas in a home “security sweep”

31. Questions?

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. 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. 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. 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. 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. Harmless Error
• Exception to the Exclusionary Rule
• “tainted evidence” is not critical to proving
guilt
• Preponderance of evidence suggests guilt

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. 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. 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. 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. Questions?

43. Chapter 9
Conducting Constitutional Seizures

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. Table 9.1 Stop v Arrest
chart p. 233
Justification Reasonable Suspicion Probable Cause
Warrant None Preferable
Officer’s Intent Investigate Suspicious Formal Charge
Activity
Search Pat Down for weapons Full search for weapons,
evidence
Scope Outer Clothing Area in suspects’
immediate control
Record Minimal (field notes) Fingerprints, photographs,
and booking

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. 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. 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. 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