Constitutional LawUnit 3

Dr. Mike Wilkie

CJ 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 to keep and bear arms, shall not be infringed.“

• Historical context

– Independence

– Limited Government

The Debate

• Interview

• Balancing Individual States’ and Individual Rights

– Prefactory Clause-purpose

– Operative-action taken

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 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)

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

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

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

Right Now

• Right Now

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!)

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

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, 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."

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

The Judge

• Judge Napolitano on the 4th

Key Terms (p. 194)

• Articulable facts

• Bright line

• Exclusionary

• Frisk

• Fruit of poisonous tree

• Good faith

• Probable cause

• Reasonable

• Search

• Seizure

• More terms (see p)

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 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”

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 states in Wolf by 14th

– Dr. Julius Wolf convicted of conspiracy to perform criminal abortions

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

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?

Tests of ReasonablenessBright 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

Tests of ReasonablenessCase by Case

• Reasonableness determined by totality of circumstances

– This is why good, complete police reports are necessary

• Balance individual rights against rights of society

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

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

Arrest Warrants

• Supported by affiant’s statement

– Usually LE officer

• Name, Describe Person

• State Offense

• Provide Copy

• Read the charges/warrant

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

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)

• Prevents evidence from being illegally seized and used for prosecution

• Mapp v Ohio 367 U.S. 643 (1961

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

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

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

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.”

Harmless Error

• Exception to the Exclusionary Rule

• “tainted evidence” is not critical to proving guilt

• Preponderance of evidence suggests guilt

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

–

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

Leon-Exclusionary Rule would apply ifThree 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

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.

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 an arrest

• Use of force or deadly in arrest

• Immunity from arrest

Table 9.1 Stop v Arrestchart p. 233

Justification Reasonable Suspicion Probable Cause

Warrant None Preferable

Officer’s Intent Investigate Suspicious Activity

Formal Charge

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

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