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(Continued)

Characteristics of Presidential Appointees to the United States Supreme Court by Presidential Administration, 1930–2014

Number of Years Presidential Administration Age at of Previous and Justice Political Party Home State Years on Court Nomination Judicial Experience

Hoover appointees

Charles E. Hughes Republican New York 1930–1941 67 0

Owens J. Roberts Republican Pennsylvania 1930–1945 55 0

Benjamin N. Cardozo Democrat New York 1932–1938a 61 18

F. Roosevelt appointees

Hugo L. Black Democrat Alabama 1937–1971a 51 1.5

Stanley F. Reed Democrat Kentucky 1938–1957 53 0

Felix Frankfurter Independent Massachusetts 1939–1962 56 0

William O. Douglas Democrat Connecticut 1939–1975 40 0

Frank Murphy Democrat Michigan 1940–1949a 49 7

James F. Byrnes Democrat South Carolina 1941–1942 62 0

Harlan Fiske Stone Republican New York 1941–1946a 68 0b

Robert H. Jackson Democrat New York 1941–1954a 49 0

Wiley B. Rutledge Democrat Iowa 1943–1949a 48 4

Truman appointees

Harold H. Burton Republican Ohio 1945–1958 57 0

Fred M. Vinson Democrat Kentucky 1946–1953a 56 5

Tom C. Clark Democrat Texas 1949–1967 49 0

Sherman Minton Democrat Indiana 1949–1956 58 8

Eisenhower appointees

Earl Warren Republican California 1953–1969 62 0

John M. Harlan Republican New York 1955–1971 55 1

William J. Brennan Democrat New Jersey 1956–1990 50 7

Charles E. Whittaker Republican Missouri 1957–1962 56 3

Potter Stewart Republican Ohio 1958–1981 43 4

Kennedy appointees

Byron R. White Democrat Colorado 1962–1993 44 0

Arthur J. Goldberg Democrat Illinois 1962–1965 54 0

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Number of Years Presidential Administration Age at of Previous and Justice Political Party Home State Years on Court Nomination Judicial Experience

Johnson appointees

Abe Fortas Democrat Tennessee 1965–1969 55 0

Thurgood Marshall Democrat New York 1967–1991 59 4

Nixon appointees

Warren E. Burger Republican Minnesota 1969–1986 61 13

Harry A. Blackmun Republican Minnesota 1970–1994 61 11

Lewis F. Powell Jr. Democrat Virginia 1971–1987 64 0

William H. Rehnquist Republican Arizona 1971–1986 47 0

Ford appointee

John Paul Stevens Republican Illinois 1976–2010 55 5

Reagan appointees

Sandra Day O’Connor Republican Arizona 1981–2006 51 6.5

Antonin Scalia Republican Illinois 1986–present 50 4

Anthony Kennedy Republican California 1988–present 51 12

George H.W. Bush appointees

David H. Souter Republican New Hampshire 1990–2009 50 13

Clarence Thomas Republican Georgia 1991–present 43 1

Clinton appointees

Ruth Bader Ginsburg Democrat New York 1993–present 60 13

Stephen G. Breyer Democrat Massachusetts 1994–present 56 14

George W. Bush appointees

John Robertsc Republican New York 2005–present 50 2

Samuel Alito Republican New Jersey 2006–present 56 16

Obama appointees

Sonia Sotomayor Independent New York 2009–present 55 17

Elena Kagan Democrat New York 2010–present 50 0

aDied in office. bPrior to appointment to associate justice. cAppointed Chief Justice in 2006 by George W. Bush. Source: Harold W. Stanley and Richard G. Niemi. Vital Statistics on American Politics. Washington, DC: CQ Press, 1994, pp.294–299. Table adapted by SOURCEBOOK staff. Reprinted by permission. Updated by the authors.

J. Scott Harr, JD Concordia University, Saint Paul

Kären M. Hess, PhD Normandale Community College

Christine H. Orthmann, M.S. Orthmann Writing and Research

Jon Kingsbury, JD Lieutenant, Minneapolis (MN) Police Department

Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United States

Constitutional Law and the

Criminal Justice System

S I X T H E D I T I O N

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WCN: 02-200-202

iii

1 A Historical Overview 3

2 An Overview of the U.S. Legal System 29

3 The U.S. Supreme Court: The Final Word 57

4 Equal Protection under the Law: Balancing Individual, State, and Federal Rights 76

5 The First Amendment: Basic Freedoms 121

6 The Second Amendment: The Gun Control Controversy 166

7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 195

8 Conducting Constitutional Seizures 233

9 Conducting Constitutional Searches 273

10 The Fifth Amendment: Obtaining Information Legally 333

11 The Sixth Amendment: Right to Counsel and a Fair Trial 376

12 The Eighth Amendment: Bail, Fines, and Punishment 408

13 The Remaining Amendments and a Return to the Constitution 435

Brief Contents

Epilogue 451

Appendix A The U.S. Constitution and

Amendments 454

Appendix B Reading Legal Citations 467

Appendix C Briefs of Marbury and Miranda 468

Appendix D Shepardizing a Case 470

Appendix E Legal Research 471

Glossary 475

Case Index 483

Authors Index 487

Subject Index 489

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About the Authors xv

Preface xvii

Acknowledgments xxiv

SECTION I A Foundation for Understanding Constitutional Law

Prologue 1

1 A Historical Overview 3 Introduction 4

Where It All Began 5 Contributions from the Past 5

Development of the United States of America 7 Colonial Dissension Grows 7 The First Continental Congress 9 The Tension Mounts 9 The Revolution Begins 10 The Second Continental Congress 10

The Declaration of Independence 10 What It Cost the Signers 11 The Articles of Confederation 11 The Influence of the Magna Carta 13 The 1787 Convention of Delegates: A Move toward the

Constitution 13

The Constitution Takes Shape 14 The Issue of Slavery 15 Drafting the Constitution 15

The Constitution of the United States: An Overview 16 Article 1: The Legislative Branch 16 Article 2: The Executive Branch 17 Article 3: The Judicial Branch 18 Article 4: Other Provisions 18 Article 5: The Amendment Process 18 Article 6: The Constitution as the Supreme Law 19 The Signing of the Constitution 19 Ratification 20

A Balance Is Struck with the Bill of Rights 21 The Bill of Rights: An Overview 22 A Living Law 25

A Nearly Timeless Document 25

Where the Declaration of Independence, U.S. Constitution, and Bill of Rights Are Today 26

Contents iStockphoto/Thinkstock

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vi Contents

Summary 27

Discussion Questions 28

References 28

Cases Cited 28

2 An Overview of the U.S. Legal System 29 Introduction 31

Theories about and the Purpose of the Legal System 31 Purpose of Law: Consensus Theory versus Conflict Theory 31 The Purpose of the Criminal Justice System: Crime Control versus

Due Process 32 The Challenge: Balancing Individual and Societal Rights 34

The Law Defined 35

Development of the Law 35

The Continuing Need for Law 36

U.S. Law Lives 36

Categorizing Law 37 Who? (Jurisdiction) 37 How? (Procedural) 38 What? (Criminal or Civil) 38

Researching the Law 40 Sources of Information about the Law 40 Reading Legal Citations 41 Reading Case Law 41 Briefing a Case 42 Shepardizing 43

The Court System 43 The State Court System 45 The Federal Court System 47

Officers of the Court 48

An Adversarial Judicial System 49

Doctrines Governing What Cases Will Be Heard 49 Standing 49 Mootness 50 Ripeness 50

The Components of the U.S. Legal System: The Big Picture 51 The Juvenile Justice System 51 The Changing Face of American Criminal Justice and

Constitutional Law 53

U.S. Criminal Justice beyond Our Borders 53

Summary 55

Discussion Questions 55

References 56

Cases Cited 56

3 The U.S. Supreme Court: The Final Word 57 Introduction 58

Authority for the Supreme Court 59

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Contents vii

Jurisdiction of the Supreme Court 59

Judicial Review 62 Controversy over and Alternatives to Judicial Review 63

Certiorari: Deciding Which Cases to Hear 64

The Supreme Court Justices 65

The Current Supreme Court 67

Politics and the Supreme Court 68

Public Attitudes toward the Supreme Court 70

Traditions and Procedures 70 Opinions 71 Interpretations 72

Where Supreme Court Decisions May Be Found 72

The Power of the Supreme Court 73

Summary 74

Discussion Questions 74

References 74

Cases Cited 75

SECTION II The Guarantees of the Constitution: Civil Rights and Civil Liberties

4 Equal Protection under the Law: Balancing Individual, State, and Federal Rights 76

Introduction 77

The Thirteenth Amendment 78

The Fourteenth Amendment 80

Due Process 81 Enumerated Rights and Incorporation 81 Procedural Due Process 83 Substantive Due Process 84 Due Process and Privacy Rights 87

Discrimination versus Prejudice 92

The Roots of Racial Discrimination 92

The Struggle for Equality 93 The Rise of Affirmative Action Programs 94 Reverse Discrimination 97 Racial and Gender Equality in the Twenty-First Century 98 Other Forms of Discrimination 98 The Immigration Issue 100

Equal Protection in the Criminal Justice System 106 Discrimination in Law Enforcement 107 Discrimination in the Courts 109 Discrimination in Corrections 111

A Check on Federal Power 113 Federalism Revisited 114 The Public Safety Employer-Employee Cooperation Act of

2009 114

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viii Contents

Summary 117

Discussion Questions 117

References 118

Cases Cited 119

5 The First Amendment: Basic Freedoms 121 Introduction 122

Freedom of Religion 124 The Establishment Clause 125 The Free Exercise Clause 128 Interpretations 131

Freedom of Speech 132 Symbolic Expression 135 Restrictions on Freedom of Speech 139 First Amendment Expression Rights of Public Employees 147 Freedom of Speech and the Internet 150 The Right to Photograph 151

Freedom of the Press 152 Balancing Freedom of the Press with the Right to a Fair

Trial 154 The Effect of Media Coverage on Criminal Investigations 157

The Right to Peaceful Assembly 157

Freedom of Association 158

First Amendment Rights of Prisoners 160

Summary 163

Discussion Questions 163

References 163

Cases Cited 164

6 The Second Amendment: The Gun Control Controversy 166

Introduction 167

Historical Background 168

The Debate: Interpreting the Second Amendment 168 Modern-Day Militias in the United States 168 Balancing Individual and States’ Rights 170

Early Case Law Regarding the Second Amendment: A Slow Start 171

A Shift in Interpretation: The Heller Decision 172

Incorporation of the Second Amendment 173

Variation in State and Local Gun Laws 174 Concealed Carry Laws 175 Castle Laws 176 Restrictions on Types of Firearms 178

Federal Regulation and the Second Amendment 182 The Brady Act 183 The Violent Crime Control and Law Enforcement Act of

1994 184

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Contents ix

The Law Enforcement Officers Safety Act 185 Other Proposed Federal Legislation 185

Guns, Crime, and Violence 186

Cases Governing Police Response to Gun Possession Reports 188

The Current Gun Control Debate 189 In Opposition to Gun Control 189 In Support of Gun Control 189

Gun Control as a Political Issue 190

Finding Common Ground—Is a Compromise Possible? 190

Summary 192

Discussion Questions 192

References 193

Cases Cited 194

SECTION III The Fourth Amendment: Governing Constitutional Searches and Seizures

7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 195

Introduction 197

The Importance of the Fourth Amendment to Law Enforcement 200

Who Is Regulated by the Fourth Amendment? 201

The Clauses of the Fourth Amendment 203 Two Interpretations 203 Reasonableness 204 Probable Cause 205 Sources of Probable Cause 206

Search and Arrest Warrants 208 Knock-and-Announce Rule 209 Special Conditions 211 Executing the Warrant 211

The Continuum of Contacts 212

The Law of Stop and Frisk 214 Basic Definitions 214 Terry v. Ohio 215

Consequences of Fourth Amendment Violations 217 The Exclusionary Rule 217 Exceptions to the Exclusionary Rule 222 Internal Sanctions, Civil Liability, and Criminal Liability 228

A Final Consideration: When State Law Conflicts with Constitutional Law 229

Summary 231

Discussion Questions 231

References 232

Cases Cited 232

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x Contents

8 Conducting Constitutional Seizures 233 Introduction 234

Intensity and Scope of a Seizure: Stop and Arrest Compared 235

Investigatory Stops 237 Establishing Reasonable Suspicion 237 Length of the Stop 240 Protective Actions during Stops 241 The Controversy over Pedestrian Stops 241 Traffic Stops 242 Roadblocks and Checkpoints 248 Stops at International Borders 249

Arrests: An Overview 250

When Arrests May Be Lawfully Made 251 Warrantless Arrests for Crimes Committed in the Presence

of an Officer 251 Warrantless Arrests Based on Probable Cause 252 Arrests with a Warrant 253

Where Arrests May Be Made 253

An Arrest or Not? De Facto Arrests 254

The Knock-and-Announce Rule Revisited 255

Community Caretaking Doctrine 255

Escalating Events 255

Pursuit 257

Use of Force 259 What Is Reasonable Force? 260 Use of Less-Lethal Force 262 The Use of TASERs 264 Use of Deadly Force 266

Citizen’s Arrest 268

Immunity from Arrest 269

Summary 270

Discussion Questions 270

References 271

Cases Cited 272

9 Conducting Constitutional Searches 273 Introduction 274

Tenets of Fourth Amendment Search Analysis 275

The Scope of Searches 277

Searches with a Warrant 278 Executing the Warrant 280 Conducting the Search 282

Searches without a Warrant 283 Searches with Consent 284 Frisks 287 Plain Feel and Plain Touch 289 Plain View Evidence 290

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Contents xi

Searches Incident to Lawful Arrest 292 The Automobile Exception 300 Exigent Circumstances 303 Open Fields, Abandoned Property, and Public Places 307

Border Searches 314

Special Needs Searches 317 Administrative Searches 317 Public School Searches 318 Prison, Probation, and Parole Searches 319 Searches of Public Employee Work Areas 322

Electronic Surveillance, Privacy Interests, and the Fourth Amendment 323 The Electronic Communications Privacy Act 326 Balancing Security Concerns with Privacy Interests 328

Summary 329

Discussion Questions 330

References 330

Cases Cited 330

SECTION IV Due Process: The Fifth, Sixth, and Eighth Amendments

10 The Fifth Amendment: Obtaining Information Legally 333 Introduction 334

Government’s Need to Know 336

The Right against Self-Incrimination 336

Due Process of Law 337

The Fifth Amendment and Confessions 338 Voluntariness of Confessions 338 A Standard for Voluntariness 341 False Confessions 341

Miranda v. Arizona 342 The Case 342 The Miranda Warning 343 The Wording 343 Premature Miranda Warnings 345 When the Miranda Warning Must Be Given 345 Waiving and Invoking the Rights 349 Beachheading or “Question First” 354 Miranda Survives a Challenge—Dickerson v. United States 356 Miranda, the Right against Self-Incrimination, and Impeached

Testimony 357 Miranda Issues Continue 358 When Miranda Warnings Generally Are Not Required 358

The Public Safety Exception 359

Consequences of a Miranda Violation 363

Fifth Amendment Miranda Implications of Using Informants 363

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xii Contents

Entrapment 363

Other Rights Guaranteed by the Fifth Amendment 365 The Right to a Grand Jury 365 Double Jeopardy 367 Just Compensation 368

Fifth Amendment and Corrections 368

USA PATRIOT Act 369 Elements of the USA PATRIOT Act 370 The Renewal of the USA PATRIOT Act 371 The USA PATRIOT Act and a Changing Society 372

Summary 373

Discussion Questions 373

References 374

Cases Cited 374

11 The Sixth Amendment: Right to Counsel and a Fair Trial 376 Introduction 378

Speedy and Public Trial 378

Where the Trial Is Held 380

An Impartial Jury 380

Jury Nullification 382

Being Informed of the Accusation 383

The Right to Confront Witnesses 383

Compulsory Process 384

Right to Counsel 385 The Role of Counsel 385 Development of the Right to Counsel 386 Current Developments 389

Right to Counsel at Critical Stages of Criminal Proceedings 389 Critical Stages during the Criminal Investigation 390 Rights during Identification 392 Critical Stages at Hearings, Trials, and Appeals 395

The Presumption of Effective Counsel 400

Waiver of Sixth Amendment Right to Legal Counsel 402

The Right to Act as One’s Own Counsel 402

Juveniles and the Sixth Amendment 404

The Sixth Amendment and Corrections 404

Summary 405

Discussion Questions 405

References 406

Cases Cited 406

12 The Eighth Amendment: Bail, Fines, and Punishment 408 Introduction 409

A Brief History of Punishment 410

Bail 411

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Contents xiii

The Evolution of Legislation and Case Law on Bail 411 The Bail Reform Act of 1966 411 The Bail Reform Act of 1984 412

Fines 414 Asset Forfeiture and the Prohibition against

Excessive Fines 415

Cruel and Unusual Punishment 416 Punishment Options 420 Physical Forms of Punishment 421

Capital Punishment 423 Is Capital Punishment Cruel and Unusual? 423 Are Lengthy Delays in Execution Cruel and Unusual? 425 Who Can Be Executed? 426 Appeals 428 Costs of the Death Penalty 428 Juries and Capital Punishment Cases 428 Continuing Controversy 429

The Eighth Amendment and Corrections 430 Prisoner Treatment and the Eighth Amendment 431

Summary 433

Discussion Questions 433

References 434

Cases Cited 434

SECTION V Coming Full Circle

13 The Remaining Amendments and a Return to the Constitution 435

Introduction 436

The Remaining Amendments to the Bill of Rights 437 The Third Amendment 437 The Seventh Amendment 437 The Ninth Amendment 438 The Tenth Amendment 440

Amendments beyond the Bill of Rights 443 The Eleventh Amendment (1795) 443 The Thirteenth Amendment (1865) 443 The Fourteenth Amendment (1868) 443 Amendments Related to Elections and Structure

of Congress 444 Voting Rights 446 Taxes 447 Prohibition 447

Attempts at Other Amendments 447

Summary 449

Discussion Questions 449

References 449

Cases Cited 450

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xiv Contents

Epilogue 451

Appendixes

A. The U.S. Constitution and Amendments 454

B. Reading Legal Citations 467

C. Briefs of Marbury and Miranda 468

D. Shepardizing a Case 470

E. Legal Research 471

Glossary 475

Case Index 483

Authors Index 487

Subject Index 489

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This text is dedicated to J. Scott Harr (1953–2008), the original lead author of this text whose 30-year career embodied true commitment to the law and allegiance to the U.S. Con- stitution. Scott was a recipient of the Warren E. Burger Award, given in honor of the former Chief Justice of the U.S. Supreme Court, and a member of the U.S. Supreme Court bar, placing him among attorneys permitted to practice before the Supreme Court. As a police officer, police chief, attorney, and educator in criminal justice, Scott Harr’s passion for and belief in the law was inspirational to his students, colleagues, and the communities in which he served. He is deeply missed.

KÄREN MATISON HESS, PhD., (d. 2010) wrote extensively in law enforce- ment and criminal justice, gaining a respected reputation for the consistent peda-

gogical style around which she structured each textbook. She developed the

original edition of Constitutional Law and the Criminal Justice System with Scott Harr and carried it through four successful revisions; much of her work and influence

remains unchanged in this new edition.

Other texts Hess authored or co-authored for Cengage Publishing are Careers in Criminal Justice and Related Fields: From Internship to Promotion; Community Policing: Partnerships for Problem Solving; Criminal Investigation; Introduction to Law Enforce- ment and Criminal Justice; Introduction to Private Security; Management and Supervision in Law Enforcement; Juvenile Justice; and Police Operations.

Hess held a PhD in English and in instructional design from the University of

Minnesota and was a nationally recognized educator. She was an instructor in the

English department at Normandale Community College (Bloomington, Minne-

sota), a frequent instructor for report writing workshops and seminars for law

enforcement agencies around the country, and President of the Institute for Profes-

sional Development. In 2006, Hess was honored by the University of Minnesota

College of Education and Human Development at the school’s 100-year anniver-

sary as one of 100 alumni who have made a significant contribution to education

and human development.

CHRISTINE HESS ORTHMANN holds an MS in criminal justice from the University of Cincinnati and has been writing and researching in various aspects of

criminal justice for more than 20 years. Orthmann is a co-author of numerous Cen-

gage texts, including Community Policing: Partnerships for Problem Solving; Criminal Investigation; Introduction to Law Enforcement and Criminal Justice; Juvenile Justice; Management and Supervision in Law Enforcement; and Police Operations: Theory and Practice. She is also a major contributor to Introduction to Private Security and Careers in Criminal Justice and Related Fields: From Internship to Promotion.

Orthmann is a member of the Academy of Criminal Justice Sciences, the Ameri-

can Society of Criminology, the Text and Academic Authors Association, and the

National Criminal Justice Honor Society (Alpha Phi Sigma). She also serves as a

reserve officer with the Rosemount (Minnesota) Police Department.

About the Authors iStockphoto/Thinkstock

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JON KINGSBURY, JD, has been with the Minneapolis (Minnesota) Police Department since 1995. In addition to his time in uniform, he has experience as a

department physical fitness instructor, defense tactics coordinator, field training

officer, SWAT team supervisor, and in-service trainer. Lt. Kingsbury received a BA

from the University of Minnesota and a JD from Hamline University School of Law,

graduating magna cum laude. He instructs in the department of criminal justice at

St. Cloud State University. He is a member of the Minnesota State Bar Association

and the International Law Enforcement Educators and Trainers Association.

xvi About the Authors

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xvii

Constitutional Law and the Criminal Justice System was written with the criminal jus- tice student in mind. We have developed a natural progression to help students

build their knowledge of the Constitution and how it directs law enforcement pro-

cedures and practices. Plain language is preferred to legalese. Court opinions are

important, and students have opportunities in this text to learn how to read them

and, in fact, read and brief some. Mastering the basic concepts of constitutional law

is only the beginning, however; U.S. law is unique in that it can, and does, change

to meet the changing needs of the society it serves. Thus, an important part of the

knowledge students will acquire through this text and course is how to keep cur-

rent with this exciting and evolving area of law.

Organization of the Text Section I provides a foundation for understanding constitutional law beginning

with a historical overview of how the Constitution came to be (Chapter 1). This is

followed by an overview of our country’s legal system (Chapter 2) and an examina-

tion of the Supreme Court of the United States as the final word on any legal issues

(Chapter 3).

Section II focuses on the guarantees of the Constitution to citizens: their civil

rights and civil liberties. The discussion first focuses on equal protection under the

law and efforts to balance individual, state, and federal rights (Chapter 4). The

focus then shifts to the basic freedoms guaranteed by the First Amendment (Chap-

ter 5). This section concludes with a discussion of the gun control controversy aris-

ing from the Second Amendment (Chapter 6).

Section III describes in depth the constitutional amendment that governs

searches and seizures—the Fourth Amendment. It begins with an overview of

constitutional searches and seizures as required by the Fourth Amendment

(Chapter 7). A detailed look at conducting constitutional seizures is presented

next (Chapter 8), followed by an equally detailed look at conducting constitu-

tional searches (Chapter 9).

Section IV examines the three other amendments particularly crucial to those in

the criminal justice profession as they apply to citizens’ due process rights. The sec-

tion first discusses due process and obtaining information legally as required by the

Fifth Amendment (Chapter 10), followed by citizens’ right to counsel and a fair trial

as required by the Sixth Amendment (Chapter 11). The section concludes with a

discussion of bail, fines, and punishment as regulated by the Eighth Amendment

(Chapter 12).

The final section of the text provides a discussion of the remaining amendments

and how additional amendments might come to be in the future (Chapter 13).

Preface iStockphoto/Thinkstock

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How to Use This Text Constitutional Law and the Criminal Justice System is a carefully structured learning experience. The more actively you participate in it, the greater your learning will

be. You will learn and remember more if you first familiarize yourself with the total

scope of the subject. Read and think about the table of contents, which provides an

outline of the many facets of constitutional law. Then follow these steps for triple- strength learning as you study each chapter:

1. Read the objectives at the beginning of the chapter. These are stated as “Do You

Know?” questions. Assess your current knowledge of the subject of each ques-

tion. Examine any preconceptions you may hold. Look at the key terms, and

watch for them when they are used.

2. Read the chapter, underlining, highlighting, or taking notes—whatever is your

preferred study method.

a. Pay special attention to all highlighted information:

In the Supremacy Clause, the U.S. Supreme Court dec lared itself the supreme law of the land.

The key concepts of the text are highlighted in this way and answer the “Do

You Know?” questions.

b. Pay special attention to all the words in bold print. The key terms of the

chapter appear this way the first time they are used.

3. When you have finished reading the chapter, read the summary—your third

exposure to the chapter’s key information. Then return to the beginning of the

chapter and quiz yourself. Can you answer the “Do You Know?” questions?

“Can You Define?” the key terms?

4. Finally, read the Discussion Questions and be prepared to contribute to a class

discussion of the ideas presented in the chapter.

By following these steps, you will learn more information, understand it more

fully, and remember it longer.

Note: The material selected to highlight using the triple-strength learning instructional design includes only the chapter’s key concepts. Although this infor-

mation is certainly important in that it provides a structural foundation for under-

standing the topic(s) discussed, you may not simply glance over the “Do You

Know?” highlighted boxes and summaries and expect to master the chapter. You

are also responsible for reading and understanding the material that surrounds

these basics—the “meat” around the bones, so to speak.

New to This Edition The sixth edition of Constitutional Law and the Criminal Justice System has been com- pletely updated with the most recent Supreme Court decisions and references

available. Those familiar with this text will notice that the current edition contains

13 chapters—one fewer than the previous edition—based on the conclusion that the

chapter previously titled “Researching the Law” need not constitute a stand-alone

xviii Preface

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chapter; the most pertinent content was redistributed to other chapters, and the

“extras” were placed in appendixes. Additionally, two important new learning

tools introduced to this edition are:

■ case synopses—to provide the student with straightforward legal interpreta-

tions of those seminal cases most impacting criminal justice ■ Myth versus Reality boxes—designed to dispel some popular misconceptions

about Constitutional law

In addition to these new elements, each chapter has been revised and updated as

follows:

■ Chapter 1: A Historical Overview Streamlined the discussion. ■ Chapter 2: An Overview of the U.S. Legal System Added a discussion of

Packer’s model of criminal justice: due process versus crime control; updated

case processing statistics; included a brief addition of how civil and criminal

trials are governed by different procedural rules; assimilated portions of old

Chapter 4 (Researching the Law) into this chapter and moved the remaining

content into four new appendixes (B: reading legal citations; C: briefs of Mar- bury and Miranda; D: Shepardizing a case; E: legal research).

■ Chapter 3: The U.S. Supreme Court: The Final Word Added discussion of

cases in which the Court is more likely to grant certiorari; updated the tables

reporting public confidence in and overall opinion of Supreme Court; brief

expansion to the discussion on judicial interpretation. ■ Chapter 4: Equal Protection under the Law: Balancing Individual,

State, and Federal Rights Reorganized the chapter and brought forward the

section on the doctrine of incorporation; expanded the discussion of due pro-

cess, adding more detailed explanation of selective incorporation versus total

incorporation; expanded coverage of procedural due process and defining a

liberty interest; expanded the discussion of substantive due process and

approaches to determining unenumerated rights: Griswold, Glucksberg; included 13 new cases; discussed the scaling back and discontinuation of ICE’s

287(g) program and redirected efforts into the Secure Communities initiative;

updated the Arizona immigration law (S.B. 1070) and 2012 SCOTUS ruling;

updated the “In the News” element (this is the first chapter in the text to

include this element); inserted critical thinking questions at the end of the

“Constitutional Law in Action” scenario boxes (again, this is the first chapter

to include this feature). ■ Chapter 5: The First Amendment: Basic Freedoms Expanded coverage of

the First Amendment, specifically as related to the areas of religion and

speech, with the following new cases: McCreary County v. ACLU (2005)— constitutionality of Ten Commandments displays in public places,

more detailed discussion of Church of Lukumi Babalu Aye v. Hialeah (1993)— violation of the Free Exercise Clause and infringement on religious

conduct, Spence v. State of Washington (1974)—how content of symbolic expres- sion affects First Amendment protection; expanded the discussion on level of

protection of speech and standards used by courts to analyze laws restricting

speech: content versus content-neutral (Clark v. Community for Creative Non- Violence, 1984—the “time, place, and manner” test for content-neutral law),

Preface xix

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Snyder v. Phelps (2011)—the military funeral protest case, Brown v. Entertain- ment Merchant’s Association (2011)—technology: banning youth from violent video games and content-based restriction on speech, United States v. Alvarez (2012)—the Stolen Valor Act and lying about military service and honors (pro-

tected speech), Roberts v. United States Jaycees (1984)—freedom of association; added a brief discussion of the perspectives courts take when analyzing free

speech; two “In the News” articles have been included that cover lying about

military medals and a federal media shield law. ■ Chapter 6: The Second Amendment: The Gun Control Controversy

Updated the number of hate groups and other anti-government “Patriot”

groups currently active in the United States; added a discussion of the new

direction of debate in gun control, now that the right has been incorporated,

and how cases are turning to laws that limit guns types, magazine capacity,

etc.; added material on how courts differ as to their standard of review when

evaluating laws that impose a burden on a person’s Second Amendment right

(Gowder v. City of Chicago (2012)—a “text, history, and tradition” approach; United States v. Decastro (2nd Circuit, 2012)—an analysis of heightened scrutiny; United States v. Skoien (7th Circuit, 2009)—the scrutiny standard); added content regarding Indiana’s Castle Doctrine and amendment to the law allowing use of

force against police in one’s own home (Barnes v. State, 2011); added a new “Constitutional Law in Action” scenario; included discussion of new firearms

bills: S.150: Assault Weapons Ban of 2013; H.R. 1369: Firearm Risk Protection

Act of 2013 (bill requiring liability insurance to purchase a firearm); S.54: Stop

Illegal Trafficking in Firearms Act of 2013); updated the statistics on firearm

violence and homicides, gun ownership, and public opinion on gun control. ■ Chapter 7: The Fourth Amendment: An Overview of Constitutional

Searches and Seizures Added to the discussion of when a private party can

be considered a government agent (United States v. Walther, 1981); expanded the explanations of probable cause (Illinois v. Gates, 1983), no-knock warrants (Richards v. Wisconsin, 1997), and warrant execution (Michigan v. Summers, 1981); added Davis v. United States (2011)—how the Court has begun to move away from the idea that the exclusionary rule is a “self-executing mandate

implicit in the Fourth Amendment itself,” added new term attenuation doctrine and discussion of it as an exception to fruit-of-the-poisonous tree (Brown v. Illi- nois, 1975); added briefly to the harmless error discussion and that the stan- dard was derived from Chapman v. California (1967); included Arizona v. Gant (2009) and how that decision shifted Court interpretation of warrantless

searches of vehicles and the role of the exclusionary rule. ■ Chapter 8: Conducting Constitutional Seizures Expanded the original

definition and elements of a seizure, adding United States v. Mendenhall (1980) (the Mendenhall test) and California v. Hodari D. (1991); added a new Constitu- tional Law in Action scenario; added two new “In the News” items that dis-

cuss NYPD civil suit regarding stop and frisk and police use of deadly force

on unarmed subject); added material on reasonable suspicion versus probable

cause, warrantless arrests for misdemeanors not committed in an officer’s

presence, and hot pursuit. ■ Chapter 9: Conducting Constitutional Searches Moved the discussion of

Katz v. United States (1967) to the beginning of the chapter and followed it up

xx Preface

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with United States v. Jones (2012) because Jones modified the definition of a search for Fourth Amendment purposes—analysis must include both the tres-

pass doctrine and the reasonable expectation of privacy doctrine; added to the

discussion of executing a search warrant with more recent cases (Muehler v. Mena, 2005; Bailey v. United States, 2013); included Messerschmidt v. Millender (2012) as a case example for qualified immunity; modified the three criteria of

plain view to better align with Horton v. California (1990); added mention of how courts are split regarding search of cell phones incident to arrest (United States v. Wurie, 2013)—an area of law to watch; added brief clarification to search of people who are companions of the arrestee; explained how Carroll has been modified such that exigency by virtue of a vehicle’s mobility is no

longer a requirement for warrantless search of vehicle because courts now

focus on probable cause; expanded discussion of Acevedo to further clarify when officers may search containers in vehicles; added a section under Exi-

gent Circumstances: Imminent Destruction of Evidence and two new cases

(Kentucky v. King, 2011; Missouri v McNeely, 2013); added Ryburn v. Huff (2012) to the emergency aid/“danger to life” discussion; added discussion of Florida v. Jardines (2013) and the “physical intrusion into property” aspect of a war- rantless search; added two new “In the News” features that discuss cellphone

searches and abandoned DNA; expanded the discussion of administrative

searches with addition of Camara v. Municipal Court of the City and County of San Francisco (1967)—the first case to recognize such searches; added Florence v. Board of Chosen Freeholders of the County of Burlington (2012) and Maryland v. King (2013) to searches of prisoners; added several new cases to the list illus- trating how courts tend to remove the reasonable expectation of privacy when

a third-party service provider holds the information in question (United States v. Conner, 2013; United States v. Graham, 2012; United States v. Warshak, 2010).

■ Chapter 10: The Fifth Amendment: Obtaining Information Legally

Added discussion of Colorado v. Connelly (1986)—voluntariness of confessions; added Watts v. Indiana (1949)—making statements to police without advice of counsel; added Howes v. Fields (2012)—Mirandizing a suspect already in custody for another offense; added United States v. Muhlenbruch (2011)—example of fac- tors the court considers when determining if custody under Miranda exists; added “and Invoking” to the discussion of “Waiving Miranda Rights” and con- tent to clarify the difference between waiving rights and invoking them; added an “In the News” box that discusses public safety exception to Miranda and ter- rorist suspect (Boston marathon bombing Dzhokhar Tsarnaev); added United States v. Patane (2004)—Miranda violation does not require the suppression of the “physical fruits” of the statement, only the non-use of the actual statement.

■ Chapter 11: The Sixth Amendment: Right to Counsel and a Fair Trial

Expanded the discussion of the right to confront witnesses with addition of

four cases: Crawford v. Washington (2004), Davis v. Washington (2006), Michigan v. Bryant (2011), and Bullcoming v. New Mexico (2011); added Perry v. New Hampshire (2012)—Court refused to extend due process analysis to a show-up situation not created by police; added Missouri v. Frye (2012) to Table 11.1, critical stages at which right to counsel exists.

■ Chapter 12: The Eighth Amendment: Bail, Fines, and Punishment

Added content about the incorporation (or lack thereof) of protection from

Preface xxi

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excessive bail; updated asset forfeiture statistics; added a new “In the News”

item that covers juveniles sentenced to life without parole for noncapital

crimes; updated Table 12.1, statistics regarding offenders given various sen-

tencing dispositions; updated data on the death penalty, number of inmates on

death row, and cost of capital punishment versus life without parole; added

Brown v. Plata (2011)—Prison Litigation Reform Act; expanded the discussion on Whitley v. Albers (1986) and the distinction made between use of force on prisoners under the Eighth Amendment (corrections setting) and that used

under the Fourth Amendment (police officers and “free” persons). ■ Chapter 13: The Remaining Amendments and a Return to the Constitu-

tion Added an explanation of “court of law” versus “court of equity;”

expanded the discussion of the Tenth Amendment: government accountability,

Congress may not force states to enact and enforce a federal regulatory pro-

gram; added Chisholm v. Georgia (1783) and ex parte Young (1908) to discussion of Eleventh Amendment; added Shelby County v. Holder (2013) and the recent Court ruling regarding key aspects of the Voting Rights Act of 1965 to the dis-

cussion of voting rights.

Exploring Further The text provides an opportunity for you to apply what you have learned or to go

into specific areas in greater depth through discussions and Internet assignments.

Complete each of these areas as directed by the text or by your instructor. Be pre-

pared to share your findings with the class.

Good learning!

Ancillaries To access additional course materials, please visit www.cengagebrain.com. At the

CengageBrain.com home page, search for the ISBN of your title (from the back

cover of your book) using the search box at the top of the page. This will take you

to the product page where these resources can be found.

Instructor’s Manual with Test Bank

Updated by Mark Brown of University of South Carolina, the manual includes

learning objectives, key terms, a detailed chapter outline, a chapter summary, les-

son plans, discussion topics, student activities, “What If” scenarios, media tools, a

sample syllabus and an expanded test bank with 30 percent more questions than

the previous edition. The learning objectives are correlated with the discussion top-

ics, student activities, and media tools. Each chapter’s test bank contains questions

in multiple-choice, true false, completion, essay and new critical thinking formats,

with a full answer key. The test bank is coded to the learning objectives that appear

in the main text, and includes the section in the main text where the answers can be

found. Finally, each question in the test bank has been carefully reviewed by expe-

rienced criminal justice instructors for quality, accuracy, and content coverage.

The manual is available for download on the password-protected website and

can also be obtained by e-mailing your local Cengage Learning representative.

xxii Preface

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PowerPoint Lectures

Helping you make your lectures more engaging while effectively reaching your

visually oriented students, these handy Microsoft PowerPoint® slides outline the

chapters of the main text in a classroom-ready presentation. Updated by Tony

Wolusky of Metropolitan State College, the PowerPoint® slides reflect the content

and organization of the new edition of the text and feature some additional

examples and real-world cases for application and discussion. Available for

download on the password-protected instructor book companion website, the

presentations and can also be obtained by e-mailing your local Cengage Learning

representative.

Careers in Criminal Justice Website

Available bundled with this text at no additional charge. Featuring plenty of self-

exploration and profiling activities, the interactive Careers in Criminal Justice web-

site helps students investigate and focus on the criminal justice career choices that

are right for them. Includes interest assessment, video testimonials from career

professionals, résumé and interview tips, and links for reference.

Preface xxiii

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xxiv

Acknowledgments

The authors would like to thank the reviewers of this edition for their insightful

feedback and constructive suggestions: Richard Pacelle, Georgia Southern

University; Melissa Harrell, Bainbridge College; Shane Gleason, Southern Illinois

University; Linda Rawls, Esq., Davenport University; Charles Johnson, Ph. D., Uni-

versity of Maine at Presque Isle; Omobolanle Ene-Korubo, Miles College; Richard

Heinzman, Amridge University; Brent Catchings, Southern Union State Commu-

nity College; Donna McIntyre, Ogeechee Technical College; and Karen Dowell,

LeMoyne-Owen College.

We would also like to thank the reviewers of previous editions: Mitch Chamlin,

University of Cincinnati; Bob Diotalevi, Florida Gulf Coast University; Wayne Dur-

kee, Durham Technical Community College; Laura Woods Fidelie, Midwestern

State University; Jill Jasperson, Utah Valley State College; Morris Jenkins, Univer-

sity of Toledo; Mark Jones, Atlantic Cape Community College; Bill Kitchens, Uni-

versity of Louisiana–Monroe; Jeff Kleeger, Florida Gulf Coast University; Deborah

Klein, College of DuPage; Wayne Logan, SUNY–Albany; Jerry Maynard, Cuyahoga

Community College; Milo Miller, Southeast Missouri State University; Russ J. Pom-

renke, Gwinnett Technical College; Leanna Rossi, Western New Mexico University;

Vincent Russo, City Colleges of Chicago; James Sanderson, Robeson Community

College; Joseph G. Sandoval, Metropolitan State College of Denver; Pamella Seay,

Florida Gulf Coast University; Caryl Lynn Segal, University of Texas–Arlington;

Gene Straughan, Lewis and Clark State College; Robert Wiggins, Cedarville Uni-

versity; Denise R. Womer, Southwest Florida College; and John Wyant, Illinois

Central College.

The authors also wish to thank acquisitions editor, Carolyn Henderson Meier;

editorial assistant, Virginette Acacio; and content project managers, Ruth Sakata

Corley and Rita Jaramillo, at Wadsworth Cengage; production service manager,

Sue Nodine; art director, Brenda Carmichael; rights acquisitions specialist, Don

Schlotman; copyeditor, Claudia Gravier Frigo; proofreader, Santhosh Kumar

Appukuttan; the team at PreMediaGlobal, including photo researcher, Padma

Priya Soundararajan, and text researcher, Ganesh Kumar; and the composition

team at Integra.

iStockphoto/Thinkstock

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Constitutional law—no other subject guides our daily lives as does the Constitution

of the United States. Each of us can go about our business in a fairly predictable,

safe way because of the guarantees and personal freedoms ensured by our Consti-

tution. And yet how many Americans know much about it? Most have never read

it. Few have studied it. Even fewer have taken the time to contemplate the implica-

tions of this incredible document . . . one many have died for.

Walk into any law library and the sheer volume of material is overwhelming.

Yet to remain law, every one of these books must balance ever so delicately on one

other, much smaller, document—the U.S. Constitution. This is a heavy burden for

the Constitution to bear, yet it has done so admirably for more than two centuries.

And all you have to do to see that it continues to do so is to maintain an awareness

of current events. The U.S. living law changes before your eyes.

When the document was drafted in 1787, it was never meant to be an all-

inclusive compendium of legal answers. It was intended as a basic framework

within which all other law must remain. It is so powerful a document that any laws

people try to impose on it that do not meet its tenets are simply void. However, the

difficulties faced by Rosa Parks and other American heroes who have stood up for

their constitutional rights remind us that the process is not quite that easy.

Those drafting the Constitution had a timeless vision. They knew society would

change, as would its needs. They realized they could never foresee all the issues

their country would confront (and what issues there are!). But the framers of our

Constitution successfully developed the charters that established our unique U.S

legal system. The basic organizational structure is created so no one person, royalty

or dictator, shall ever have total rule, and so that a handful of precious basic rights

are ensured. This is what the U.S. Constitution is about. It is really quite simple. So

why does a course in constitutional law strike fear in the hearts of students of all

ages? Because anything that has worked so well for so many, for so long, must have

some built-in complexity. And it does—interpretation.

Myriad forces affect interpretation of the Constitution: the time, societal norms,

and politics. Indeed, constitutional interpretation is political, explaining why any

President wants to exercise the powerful right to appoint justices to the U.S.

Supreme Court. This text addresses the awesome power the Court has in being the

final arbiter of which laws are constitutional and which are not. In this role, the

Prologue iStockphoto/Thinkstock

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Supreme Court becomes the ultimate maker of law. In the famous case of Marbury v. Madison (1803), the Court considered whether it had the authority to review laws passed by the Congress—and the Court declared that it did. Some argue that by so

doing, the U.S. Supreme Court has become the de facto ultimate lawmaking body

in our country. So it becomes important to political leaders to have justices on that

bench whose ideologies are in accord with theirs. Politics does play a real part in

interpreting laws.

The Constitution works because those who wrote it more than 200 years ago

provided only basic tenets, leaving the challenge of interpreting them as they relate

to current issues. For example, free speech issues are decidedly different today than

two centuries ago—but the basic idea remains. The Fourth, Fifth, and Sixth Amend-

ments still guide government investigations, but such matters as the use of sophis-

ticated electronic eavesdropping and computer equipment now become an issue.

How people interpret the Constitution can cause confusion. For all who are

certain how the Constitution should be read (in their favor, of course), others are

just as sure it should be interpreted differently. And today’s issues of abortion, gun

control, and the environment beg for interpretation, flip-flopping back and forth,

up and down, through our legal system, always searching for a final interpretation.

Most often, the U.S. Supreme Court, as the final arbiter of law, tells us what the

interpretation is—until the Court makes a change itself or until another case with a

slightly different twist than previous cases is decided differently.

Before you look ahead, it is important to take time to reflect on the past. History

seems to be an accurate predictor of the future because it has a unique way of

repeating itself. Yet history is often overlooked. That is why this text starts with a

brief, but important, review of what led to the U.S. Constitution, re-establishing the

foundation on which the subsequent information neatly rests and making the study

of the Constitution logical, perhaps even enjoyable. This point is reinforced by two

statues positioned at the rear exit of the National Archives in Washington, DC. Most

visitors would never see these imposing statues unless they went out the wrong

door. Those who do so may stop to look around to get their bearings and see the

crucial advice of one statue, “What Is Past Is Prologue.”

2 Section I A Foundation for Understanding Constitutional Law

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CHAPTER 1 A Historical Overview

Give me liberty, or give me death!

—Patrick Henry

C o

u rt

e sy

o f

J .

S co

tt H

a rr

What is past is prologue.

iStockphoto/Thinkstock

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4 Section I A Foundation for Understanding Constitutional Law

Introduction It has been said that the best way to know where you are going is to look where you

have been. As discussed in the introduction to this section, constitutional law can

become complicated. Any endeavor becomes easier, however, if a firm base is estab-

lished from which to proceed. Although you might think a historical review is

unnecessary, or that you took a wrong turn when opening a constitutional law text

to begin reading about the colonists, you should gain some important insights.

Do You Know . . .

Can You Define? amendments

anti-Federalists

constitution

constitutionalism

Federalists

Great Compromise

law

Loyalist

minutemen

Patriot

pluralism

ratify

supremacy clause

■ What law is?

■ What pluralism contributes to our society?

■ Why the colonists resisted increased taxes?

■ What the Boston Tea Party symbolized?

■ What resulted from the First Continental Congress? from the Second

Continental Congress?

■ What the Declaration of Independence is?

■ What the Articles of Confederation were?

■ What the Magna Carta is?

■ What important role the Magna Carta played in framing the

U.S. Constitution?

■ What the primary purpose of the Constitution is? How it is

achieved?

■ What the first three articles of the Constitution established?

■ How the balance of power was established?

■ What the supremacy clause established?

■ When and where the Constitution was signed?

■ Who the Federalists were? The anti-Federalists?

■ Why some states were reluctant to accept the Constitution?

■ What the Bill of Rights is and how it was included with the

Constitution?

■ What serious omission occurred in the Bill of Rights?

■ Where the Declaration of Independence, the U.S. Constitution,

and the Bill of Rights are housed?

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Chapter 1 A Historical Overview 5

This chapter begins with a discussion of the roots of the U.S. Constitution and

contributions from the past. This is followed by an examination of how the United

States of America developed, including a discussion of the American Revolution

and the signing of the Declaration of Independence. Then the move toward the

Constitution is described, followed by an overview of the Constitution itself and

the balance struck through the addition of the Bill of Rights. The chapter concludes

with an assessment of how the Constitution and Bill of Rights, as examples of living

law, are nearly timeless documents, followed by a look at where the Declaration of

Independence, the U.S. Constitution, and the Bill of Rights are currently archived.

Where It All Began A constitution is a system of basic laws and principles that establish the nature,

functions, and limits of a government or other institution. The U.S. Constitution

(always written with a capital “C”) is youthful, which makes it all the more impres-

sive. Consider other nations that rely on many more centuries, even thousands of

years, of tradition and law that has been fine-tuned to serve them. And although

the U.S. Constitution may be young, the history that influenced it can be traced

back to when people first began forming groups throughout the world.

Recognize that every culture that has made its way to the

United States has been influenced by other cultures, all of which

have contributed to the uniqueness of U.S. law. Rules that become

laws are a part of any society.

The laws that the framers of the U.S. Constitution were famil-

iar with helped form what would become the new law of the new

country. The land that now composes North America has always

held an attraction. As long ago as 30,000 b.c.e., people began tra-

versing the continent to seek something that held the promise of more than they

had. And whether the motivations for these incredible journeys were as basic as

food or as complicated as a search for political and religious freedoms, people came

hoping for something better.

Contributions from the Past

Representatives from every culture that has come to the United

States, regardless of when they arrived or where they came from,

share in the historical development of our country and legal sys-

tem. It is the common thread that binds all who have come here—

the desire for something better—that makes U.S. law so unique in

serving the pluralistic society that created it.

Before the colonization of the United States, the American

Indian tribes had their distinct territories, languages, and cultures.

Pluralism existed long before the colonists “discovered” America. When the colo-

nists arrived and began taking over the land occupied by the American Indians, the

American Indians began to band together in self-defense.

The colonists came from various countries and were of varied religions and

cultures. Initially they settled in specific areas and maintained their original culture,

for example, the Pennsylvania Dutch. A pluralistic society challenged the colonists

constitution a system of basic laws and principles that

establish the nature, functions,

and limits of a government or

other institution

Law is a body of rules promulgated (es tablished) to supp ort the norms of that societ y, enforced through legal means (i.e., punishment).

law a body of rules promulgated (established) to

support the norms of a society,

enforced through legal means

(i.e., punishment)

Pluralism refers to a societ y in wh ich numerous dist inct et hnic, religious, or cultural groups coexist within one nation, each contributing to the societ y as a wh ole.

pluralism a society in which numerous distinct ethnic,

religious, or cultural groups

coexist within one nation, each

contributing to the society as a

whole

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6 Section I A Foundation for Understanding Constitutional Law

to exercise tolerance and respect for the opinions, customs, traditions, and lifestyles

of others. Cultural and ethnic diversity enriched early American life and strength-

ened the emerging nation. The following list shows the ethnic population of the

colonies in 1775 by percentage:

48.7 English

20.0 African (slaves)

7.8 Scots-Irish

6.9 German

6.6 Scottish

2.7 Dutch

1.4 French

0.6 Swedish

5.3 Other

Source: Armento et al., 1991, p. 49.

Interestingly, the American Indians are absent from this chart because they were

not considered part of the colonies. Also of interest is the 20 percent African popula-

tion, who were slaves brought to this country primarily to labor on Southern planta-

tions. In many Southern states, slaves outnumbered the colonists. For example, in 1720

South Carolina’s population was 30 percent white and 70 percent black (Simmons,

1976). Concerned about the dangers the oppressed slaves could create, some of the

first new laws colonists wrote were slave laws. Most Southern colonies established a

special code of laws to regulate the slaves and established special enforcement officers,

known as slave patrols, to ensure that these laws were obeyed.

Although American Indians and African Americans are not often given the rec-

ognition they are due, they played an important part in the development of America.

In 1775, three large groups coexisted in the United States: the American Indians, the

African slaves, and the colonists. The history of the United States, however, has

generally focused on only the colonists. And the colonists with the most wealth and

power—white, male property holders—are credited with creating the basic structure

of our country.

Over time, interaction, and eventually, assimilation occurred among the colonists,

commonly referred to as a “melting pot” because several different nationalities com-

bined into what was known as “the American colonist.” Such assimilation was

encouraged by the vast, apparently unlimited resources available, as well as by the

struggle for survival. Colonists faced the threat of foreign countries wishing to control

them, the dangers posed by the American Indians they were displacing, and the often-

rebellious slaves in the South. Therefore, it was natural that they should band together.

Colonies developed and organized in unique ways. The emerging nation saw

different priorities and different norms. Some colonies banded together for security

in ways not unlike modern businesses. Massachusetts Bay and Virginia, for exam-

ple, entered into businesslike agreements, or charters, establishing cooperative

government. Other colonists entered into compacts with primarily a religious pur-

pose in establishing how they chose to govern themselves, as was the case with the

Plymouth, Rhode Island, Connecticut, and New Haven colonies.

Regardless of how unique the states were allowed—in fact, encouraged and

demanded—to be, it was undeniable that benefits remained in working together

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Chapter 1 A Historical Overview 7

rather than separately. A fragmented beginning was developing into a single

nation. The terms liberty and limited government were ideals that compelled all that was necessary for establishing a new country. But what did these terms mean, and

how could a new country be effectively governed for the good of all while ensuring

individual liberty and limited government? The task was daunting, but the promise

of what could be was highly motivating.

Levy and Mahoney (1987, p. 35) explain how this new country was forging the

law to come: “To keep government limited—that is, to remain a constitutional soci-

ety, Americans took sovereignty away from government and lodged it with the

people . . . with separation of powers. Because the people, rather than government

at any level, must be sovereign, they can delegate some powers to their state gov-

ernments and others to a national government.”

Development of the United States of America Despite the colonists’ desire for freedom, America was viewed as an attractive area

for expansion by the world powers. Spain, France, and England, as well as other

countries, saw great importance in adding the “New World” to their growing

empires. This desire for existing nations to make America a part of their govern-

ment planted the tiny seed of what was to grow into independence. Just as

American Indians had seen their freedom threatened by the colonists and the

African American slaves had been stripped of their freedom, the colonists realized

their freedom was in jeopardy from abroad. Americans were not willing to sit idly

by while those asserting power attempted to coerce them into submission. When

the colonies were confronted with attempts, primarily by Great Britain, Spain, and

France, to consume and control the New World, resistance grew, exemplifying the

spirit associated with the United States.

Colonial Dissension Grows

As the colonies’ populations began to grow, so did serious differences between

those who saw themselves as free, independent colonies and those who wanted a

foreign flag flying over them. As existing empires positioned themselves politically

and militarily to expand their boundaries into the New World, conflict was

inevitable.

In 1750, French troops began arriving from Canada, building forts and laying

claim to land that American Indians were occupying and that England was eyeing.

A showdown eventually occurred in 1754, when British leaders ordered the

Virginia governor to forcibly repel the French. George Washington and about

150 colonists marched against the French in what became known in North America

as the French and Indian War (1754–1763). This competition between the British

and the French was part of a larger, general European conflict—the Seven Years’

War. By 1763, after the French and Indian War, French resistance was defeated, and

the Treaty of Paris resulted in France losing most of the land it had claimed in

America. But British problems were far from resolved.

Great Britain confronted two significant problems, the first being continued

westward settlement by the colonists (Divine et al., 1991). This was problematic for

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8 Section I A Foundation for Understanding Constitutional Law

Great Britain because the American Indian tribes fought to protect their land from

the colonists, and the British army was unable to protect the isolated frontier settle-

ments. For example, nearly 2,000 colonial men, women, and children died during

Pontiac’s Rebellion. In December 1763, British and colonial troops finally crushed

the American Indians’ defense of their territory. When King George III learned of

the fighting, he issued the Proclamation of 1763, closing the western frontier to

colonial settlement and placing it under military rule. Settlers already there were

ordered to leave.

The second major problem facing Great Britain was the huge debt resulting from

English military action to expand the empire. The British Parliament felt the colonists

should share this debt. The colonies resisted the restrictions to westward settlement

and to paying for Great Britain’s war debts. Significant leaders began emerging—

George Washington, Benjamin Franklin, Paul Revere, and Thomas Jefferson—leaders

who had found strength in cooperating to resist the French and who now redirected

their resistance toward Parliament’s efforts to control America.

Spurred on by its belief that the American colonies should share in the expenses

incurred, Parliament passed the Stamp Act in 1765, requiring stamps to be pur-

chased and placed on legal documents such as marriage licenses and wills, as well

as several commodities, including playing cards, dice, newspapers, and calendars.

Further resentment grew when, in 1765, Parliament passed the Quartering Act,

which required colonists to feed and shelter the 10,000 British troops in America.

Protests against the increasing British attempts to rule the colonies intensified, but

demands that Parliament repeal these laws were rejected—objections to the Quar-

tering Act later found their way into the Third Amendment to the U.S. Constitution.

In addition, when the king’s troops marched out of Boston on their way to Lexing-

ton and Concord, they were searching for munitions—hence the wording of the

Second Amendment to the U.S. Constitution.

In 1766, the Stamp Act was finally repealed but was replaced by other taxes on

commodities the colonists needed to import from England. New York resisted the

Quartering Act, and Parliament again found itself trying to rule from abroad, which

was not working well. Dissension increased, as did tensions between the colonists

and the British soldiers sent to enforce Parliament’s demands.

Finally, in 1770, after 4,000 armed British troops had come to Boston from Nova

Scotia and Ireland, colonists began taunting British soldiers and throwing snow-

balls and ice at them. The soldiers fired on these colonists in what became known

as the Boston Massacre. Attempting to quell the volatile situation, Parliament even-

tually repealed most of the taxes and duties, except those on tea. For both sides, this

remaining tax was a symbol of British rule over the colonies. In December 1773,

disguised as American Indians, colonists boarded three British ships in Boston Har-

bor and dumped the cargos of tea overboard.

As a result of the tea dumping, Parliament passed several laws in retaliation for

such an open act of defiance, including the following:

■ Town meetings were restricted to one a year. ■ The king was required to appoint people to the governmental court rather

than have them elected. ■ The Quartering Act was expanded, requiring soldiers to be housed in private

homes and buildings (which seemed like spying to the colonists).

The colonist s res ist ed increased taxes bec ause they felt it was taxation without repres entation.

The Boston Tea Party, in wh ich colonist s boarded British ships and threw their cargos of tea in the harbor, repres ented the colonist s’ unwillingness to pay taxes without repres entation.

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Chapter 1 A Historical Overview 9

■ British officials accused of crimes in the colonies were permitted to be tried in

England, away from angry American colonists.

Again the colonists were not complacent. They met to address the situation.

The First Continental Congress

In September 1774, 55 delegates from 12 colonies met in Philadelphia to address

their mounting complaints against Great Britain. At this First Continental Congress,

such leaders as Samuel Adams and Patrick Henry resolved to resist British rule.

The Congress agreed on three important actions. First, they adopted a set of

resolutions defining the rights, liberties, and immunities of the colonists and listing

actions of the British government that violated these rights. Second, they drew up

an address to King George III and another to the citizens of Britain, presenting

American grievances and calling for a restoration of American rights. Third, they

called for each community to establish a boycott committee to prevent colonists

from buying British goods until the Congress’s demands were met. In general,

someone who bought British goods was branded a Loyalist or Tory. One who sup-

ported the boycott was called a Patriot or rebel.

The Tension Mounts

By the beginning of 1775, the colonies were actively preparing for what many saw

would be an inevitable confrontation with the British. Minutemen, the name given

to the colonial soldiers, were drilled and equipped to respond at a minute’s notice

to protect American lives, property, and rights. In March 1775, Patrick Henry deliv-

ered his famous plea for freedom:

Sir, we have done everything that could be done to avert the storm which is now

coming on. We have petitioned; we have remonstrated; we have supplicated; we

have prostrated ourselves before the throne and have implored its interposition

to arrest the tyrannical hands of the Ministry and Parliament. Our petitions have

been slighted; our remonstrances have produced additional violence and insult;

our supplications have been disregarded; and we have been spurned, with con-

tempt, from the foot of the throne. In vain, after these things, may we indulge

the fond hope of peace and reconciliation.

There is no longer any room for hope. If we wish to be free; if we mean to

preserve inviolate those inestimable privileges for which we have been so long

contending; if we mean, not basely to abandon the noble struggle in which we

have been so long engaged, and which we have pledged ourselves never to

abandon, until the glorious object of our contest shall be obtained; we must fight!

I repeat it, sir, we must fight!! . . . It is vain, sir, to extenuate the matter. Gentlemen

may cry, peace, peace; but there is no peace. The war is actually begun! The next

gale that sweeps from the north will bring to our ears the clash of resounding

arms! Our brethren are already in the field! Why stand we here idle? What is it

that gentlemen wish? What would they have? Is life so dear or peace so sweet as

to be purchased at the price of chains and slavery?

Forbid it, Almighty God—I know not what course others may take, but as

for me, give me liberty, or give me death! (Brown and Bass, 1990, p. 140)

The First Continental Congress res ulted in the fi rst writt en agreement among the colonies to stand toget her in res ist ance against Britain.

Loyalist a colonist who did not support the boycott of British

goods in the colonies and who

still paid allegiance to the British

monarchy

Patriot a colonist who supported the boycott of British

goods in the colonies and who

owed allegiance to America

rather than to the British

monarchy

minutemen colonial soldiers

MYTH Those who fought for inde-

pendence intended for the

Constitution to protect my right to

do whatever I like. After all, “It’s a

Free Country!”

REALITY The Constitution protects many

civil rights but never declares

that individuals are free to do

whatever they wish.

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10 Section I A Foundation for Understanding Constitutional Law

The Revolution Begins

The American Revolution was led, financed, and designed by and for those with

social and economic power. Ironically, some African American slaves joined the

fight for freedom. With tensions at their flash point, minutemen in Lexington and

Concord were alerted by William Dawes, Paul Revere, and other midnight riders

that the British soldiers were coming.

On April 19, 1775, the waiting minutemen in Lexington saw the British Redcoats

approaching. Shots were exchanged, and the British killed eight Americans that

morning and then moved on to Concord. The battles at Lexington and Concord

strengthened the colonists’ resolve and prompted them to meet again to determine

how to proceed.

The Second Continental Congress

In 1775 the Second Continental Congress convened in Philadelphia.

The Congress also made plans to raise money and buy sup-

plies for the new army and to seek support from other countries

by opening diplomatic relations with them. The colonists were

now prepared for all-out war with the British.

George III denounced the American leaders as “rebels” and

ordered the British military to suppress the disobedience and pun-

ish the authors of the “treacherous” resolves. The ensuing battles

of Ticonderoga, Bunker Hill, Trenton, and Saratoga, among others, showed the

American people’s commitment to fight for what they held so dear—their indepen-

dence. As the war continued, prospects for a reconciliation with Great Britain

dimmed.

In May, the Congress instructed each colony to form a government of its own,

assuming the powers of independent states. The movement for a break with Great

Britain spread upward from the colonies to the Continental Congress, with the

desire for independence firmly resolved.

The Declaration of Independence In July 1776, after arduous debate, delegates at the Second Continental Congress

voted unanimously in favor of American independence. Thomas Jefferson was

selected to coordinate writing the formal announcement, which would become

known as the Declaration of Independence. It listed the complaints the people had

against Britain and justification for declaring independence.

The entire text of the Declaration of Independence can be

found on the National Archives website (www.archives.gov).

However, it is important to highlight here the important sections

of this historic work. First, the opening paragraph explains why

the Declaration was issued, that is, the compelling necessity for

the colonists to break their political ties with Great Britain. The

second paragraph, the crucial statement of the purposes of gov-

ernment, declares that a government’s right to rule is based on

permission from the people who are governed. Third, charges against the British

king were reviewed in a long list that enumerated how the king’s government had

The Sec ond Continental Congress es tablished the Continental Army and named George Washington its commander.

On July 4, 1776, the pres ident of the Congress signed the American Dec laration of Independence, wh ich formally severed ties with Great Britain.

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Chapter 1 A Historical Overview 11

denied the American colonists their rights. Fourth, the Declaration describes the

colonists’ attempts to obtain justice and the British lack of response. Fifth, the last

paragraph proclaimed independence and listed actions the new United States of

America could take as a country.

What It Cost the Signers

The men who signed the Declaration were the elite of their colonies, men of wealth

and social standing. They were, indeed, risking all. To sign the Declaration of Inde-

pendence was an act of treason—punishable by death. Because it was so dangerous

to publicly accuse their king, the names of the signers were kept secret for six

months. Although most of the 56 signers survived the war and many went on to

illustrious careers—including two presidents, as well as vice presidents, senators,

and governors—not all were so fortunate.

Nine of the 56 signers died during the American Revolution, never tasting inde-

pendence. Five were captured by the British. Eighteen had their great estates looted

or burned by the British. Carter Braxton of Virginia, an aristocrat who invested

heavily in shipping, had most of his ships captured by the British navy and his

estates ruined. He became a pauper. Richard Stockton, a New Jersey Supreme Court

judge, was betrayed by his Loyalist neighbors, dragged from his bed and impris-

oned, brutally beaten, and starved. His estate was devastated. Although he was

released in 1777, his health was ruined, and he died within five years, leaving his

family to live on charity. John Hart, the speaker of the New Jersey Assembly was

forced to flee in 1776 at the age of 65 from the bedside of his dying wife. He hid in

forests and caves while the British destroyed his home, fields, and mill, and took

his 13 children. When he returned, his wife was dead, his children missing, and his

estate destroyed. He never saw his children again and died, shattered, in 1779

(Jacoby, 2000).

Indeed, Americans owe much to those 56 signers of the Declaration of Indepen-

dence. Because of their commitment to liberty, the colonists were able to move

forward in establishing the foundation for their new, free country.

The Articles of Confederation

The Second Continental Congress acted to declare independence for America and

set about determining how government should be developed. Richard Henry Lee,

the delegate who made the resolution for America to be independent, encouraged

a confederation of independent states.

In 1777, the delegates to the Second Continental Congress agreed, and the

Articles of Confederation created a governmental model for this new country. The

13 states were cherishing their independence and resisted agreeing to a single gov-

ernment of any kind. The tension over whether to secede from Great Britain in the

first place, both for fear of the Crown’s power and fear of the unknown, was

replaced with a new tension. Once the break was made, might not a new govern-

ment be even worse? Could any single government meet their needs? The colonists’

solution was a confederation of independent states.

These articles were important because after they were approved in 1781, the

duties of government were divided among the states and the central government.

During the eight years that America operated under them, great strides were made

MYTH The Declaration of Independence

states that ours should be a

government “of the people, by the

people, for the people.”

REALITY This phrase comes from

President Abraham Lincoln’s

Gettysburg Address, delivered

87 years after the signing of the

Declaration of Independence.

The Articles of Confederation formally pledged the states to “a fi rm league of fr iendship,” and “a perpet ual union” created for “their common defense, the sec urity of their liberties ” and their “mutual and general welfare.”

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12 Section I A Foundation for Understanding Constitutional Law

toward unifying a group of states that had, by their own desire, become separate.

And although the inadequacies of this document eventually led to the Constitution

itself, the Articles of Confederation were an important stepping-stone. The articles

established a congress to conduct the necessary tasks of a central government,

including waging war and making peace, controlling trade with the Indians, orga-

nizing a mail service, and borrowing money.

Reflection on the reasons for the events that led up to this point can easily

explain why this preliminary attempt to establish a federal government left Con-

gress with much weaker powers than would eventually be established. The found- ers feared a concentrated, centralized political power. Therefore, Congress was not empowered to

■ Regulate trade—internally or externally. ■ Levy taxes. They could ask but could not compel. ■ Draft soldiers. Again, they could ask but could not compel. ■ Establish a court system. ■ Regulate money.

Nevertheless, Benjamin Franklin commented, “Americans are on the right road

to improvement [with the Articles of Confederation], for we are making experi-

ments.” George Washington, however, cautioned that the articles did not have the

necessary strength to run a new country, and as the confederation stood, it was little

more than the “shadow without the substance.”

The colonists were faced with the formidable task of governing themselves and

holding together their agreed-on union: “No longer could disputes within and

between colonies be carried to London for settlement. No longer did loyalty to the

British King or the need for common action in the war against him constitute a

unifying principle for Americans” (Beard and Beard, 1968, p. 123).

Loyalists, who had opposed the revolution, called for reestablishing a monar-

chy for America. Others called for a military dictatorship. The need for some sort of

strong leadership became more apparent as complaints against state governments

grew in number and strength. In some states, such as Massachusetts, the right to

vote was restricted to property owners and taxpayers. Creditors could sue debtors

and take property away from farmers who could not pay what they owed. In 1786,

a band of debt-burdened farmers in Massachusetts, led by Captain Daniel Shays,

attempted to shut down the courts through armed force:

It was only with difficulty and some bloodshed that the state government put

down “Shays’ Rebellion.” Even then popular sympathies with the uprising

remained so strong that the state officials did not dare to execute Shays or any of

his followers. Whatever the merits of this popular revolt, it increased the fears of

property owners and conservatives in general, inciting them to work harder

than ever for a powerful national government. (Beard and Beard, 1968, p. 125)

According to David Woodard (personal communication, 2006), “Shays’ Rebellion is

one of the most important catalysts, if not the most important, in bringing about the

Constitution.” The rebellion reflects the impact of individuals in forging the shape

of their government. Another strong influence that came from England was the

Magna Carta.

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Chapter 1 A Historical Overview 13

The Influence of the Magna Carta

The U.S. Constitution has important ties to what is perhaps

the most important instrument of English government—the

Magna Carta. This document, which King John was forced to

sign on June 12, 1215, ensured feudal rights and guaranteed

that the king could not put himself above the law.

To this day, the British have never operated their govern-

ment under a centralized “constitution.” Rather, they work

under tradition, and at the heart of that tradition is the his-

toric Magna Carta, guaranteeing, among other things, basic

due process. Those who came to America in 1620 and their

descendants, through the American Revolution, ultimately

rejected rule under the British Crown and what it had come

to symbolize. Nonetheless, present-day American law has

deep roots in what Great Britain had established as a legal

system. This explains the importance of continuity of law.

Consistency must run through all law to develop predictabil-

ity. The framers of the U.S. Constitution sought to develop

such a format that would guarantee the continuation of basic

rights as specific law developed.

At least some stability in life is ensured by holding on to our past. And although

the colonists rejected British rule, they recognized that a document such as the

Magna Carta provided a stable framework from which to start. First, the Magna

Carta was a step away from total rule by a single individual. Second, it had a fairly

long history of success by the time the New World began to receive visitors from

abroad seeking to colonize. And finally, it provided some security in that not every-

thing needed to start from scratch.

For some 20 years, the British Magna Carta significantly influenced the develop-

ment of other documents drafted in response to colonists’ ever-growing desires for

fairer treatment by their government. The revision of the Articles of Confederation

was one such example.

The Articles of Confederation had established “a firm league of friendship”

between the states. However, they were inadequate as the foundation for effective

government because they lacked a balance of power between the states and the

central government. Therefore, in 1787, the Congress of the Confederation called

for a convention of delegates from the original states to meet in Philadelphia to

revise the Articles of Confederation.

The 1787 Convention of Delegates: A Move toward the Constitution

In May 1787, delegates to the Constitutional Convention met at Independence Hall

in Philadelphia. George Washington was elected to preside over the meetings. The

public was not permitted in the meetings so the delegates could speak more freely.

Arduous debate occurred during this Constitutional Convention. The summer of

1787 was one of record heat, and because of the standard dress of the day, the fram-

ers worked for only a few hours in the mornings. Afternoons were filled with much

camaraderie and imbibing of favorite beverages.

The Magna Carta es tablished the supremacy of the law over the ruler and guaranteed English feudal barons individual rights and “due process of law,” including trial by jury.

Americans continued to believe in the principles contained in the Magna Carta, wh ich was a prec edent for democratic government and individual rights and the foundation for requiring rulers to uphold the law. The Magna Carta greatly infl uenced the writers of the U.S. Constitution.

MYTH The U.S. government is a

democracy.

REALITY The Constitution established the

U.S. government as a republic,

not a democracy. In fact, the word

democracy appears nowhere

in the Constitution. Article IV,

Section 4 of the Constitution

states, in part: “The United

States shall guarantee to every

State in this Union a Republican

Form of Government. . . .” A

democracy functions under

majority rule (mob rule) and

lacks legal safeguards protecting

the rights of individuals in the

minority. Because the framers of

the Constitution feared demo-

cratic rule and how it allowed the

omnipotent majority to trample

on the rights of the minority, they

created a republic—a represen-

tative government rule by law (the

Constitution)—recognizing the

inalienable rights of all individu- als, not just those of the majority.

• Think about words in the

Pledge of Allegiance and what

you are vowing to uphold.

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14 Section I A Foundation for Understanding Constitutional Law

The delegates decided how many votes each state would

have and that a new document was preferable to merely

amending the Articles of Confederation. The challenge of

drafting the Constitution began.

Bearing in mind the combined difficulties of communi-

cation and travel, the willingness and persistence of the

delegates who gathered to shape what was to become the

Constitution speaks directly to their need for such a tool. For

without it, even the most revered and capable politicians

and leaders of the time would have been doomed to failure.

Instead, the most incredible chapter of U.S. history was

slowly being opened.

The Constitution Takes Shape It can be difficult to grasp all that lies behind the Constitution unless one keeps in

mind the underlying reason for the Constitution, that is, to provide a system of

government that would prevent one individual from having complete power.

Understandably, such a system would, out of necessity, have complexities built in

to achieve such a lofty goal, but the basic reasoning is simple.

Issues that became prominent were the structure and powers of Congress (the

legislative branch), of the executive branch, and of the judicial system. What was

sought was an array of checks and balances that would allow the system to work,

while achieving the primary goal of limiting power to any individual or section of

the government.

The delegates at the Constitutional Convention, who came from varied back-

grounds, rose to the challenge. Individual power was never their objective, but

rather societal cohesiveness and democratic power to achieve . . . “one nation, with

liberty and justice for all.” The delegates who would help make the Constitution

came that year with differing views, but all were advocates of constitutionalism.

That is, they believed in a government in which power is distributed and limited by

a system of laws that must be obeyed by those who rule. According to that principle,

constitutions are a system of fundamental laws and principles that prescribe the

nature, functions, and limits of a government or other body. Constitutions are distin-

guished from ordinary acts of legislation in that they are drafted by special assem-

blages and ratified by special conventions chosen by the people. A constitution is

supreme law, not to be annulled by legislation. Constitutionalism is one of the most

original, distinctive contributions of the American system of government.

Like those who wrote the Articles of Confederation, the framers of the Constitu-

tion recognized that the people are the power. The delegates to the First Continental

Congress in Philadelphia had been selected by the people of the colonies, not by

existing colonial governments. Likewise, the delegates to the Constitutional Con-

vention represented the people.

All states except Rhode Island were represented at the Constitutional Conven-

tion, which met at the State House in Philadelphia from May 25 to September 15,

1787. The 55 delegates included many of the most influential men in the country.

Eight had signed the Declaration of Independence, 7 were governors of their states,

and 39 were congressmen. More than half were college graduates, and at least

constitutionalism a belief in a government in which power

is distributed and limited by a

system of laws that must be

obeyed by those who rule

The purpose of the Constitution was to es tablish a central government authorized to deal direct ly with individuals rather than states and to incorporate a system of chec ks and balances that would pres erve the fundamental concepts contained in the Magna Carta, that is, to limit the power of the government.

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Chapter 1 A Historical Overview 15

one-third were lawyers. Most held prominent positions in the Revolutionary War,

and all were highly respected property owners.

Although unanimously elected president, George Washington took a limited but

effective role in the deliberations. Despite some talk of the larger states getting more

votes than the smaller states, the convention followed the procedures used to develop

the Articles of Confederation, giving each state one vote, with seven states constitut-

ing a quorum. Any vote could be reconsidered, as many were during the convention.

The convention was also governed by a rule of secrecy, requiring that nothing said

during the deliberations be printed, published, or otherwise communicated without

permission. Such secrecy was vital to unbiased discussion and to prevent rumors and

misconceptions. The official journal to the convention was closed until 1819.

The convention first debated the Virginia resolution, calling for a national govern-

ment with a bicameral legislature, an executive, and a judiciary branch. The smaller

states, however, backed the New Jersey Plan, calling for only modest revisions in the

Articles of Confederation. In addition, the larger states supported representation pro-

portional to a state’s population, whereas the smaller states wanted one or two votes

per state. A threatened deadlock was averted by the Great Compromise, which gave

each state an equal vote in the Senate and a proportionate vote in the House.

After lengthy debate, the delegates also decided to strengthen the central gov-

ernment and to clearly define federal powers. All other powers were entrusted to

the individual states and to the people. Specifically, the country was to be governed

by a president to be chosen by electors in each state, a national judiciary and a two-

chamber legislature. The House of Representatives was to be popularly elected. The

Senate, however, which shared certain executive powers with the president, was to

be chosen by individual state legislatures. Under the Great Compromise between

the large and small states, representation in the House was to be proportional to a

state’s population; in the Senate each state was to have two votes. The national plan

for government agreed to by the convention delegates clearly separated the powers

of the three branches of government and created a system of checks and balances

among these three branches, as well as between the federal and state governments

and the people both were to serve.

The Issue of Slavery

The issue of slavery was omitted during the constitutional debates. Although none

of the framers knew whether this radical document would be ratified, they knew it

would have zero chance of getting Southern ratification if it dealt with the slavery

issue. At the time, slavery was on its way out in many states. Some plantation own-

ers in the South had their doubts about slavery as well. It was not until Eli Whit-

ney’s invention of the cotton gin six years later that the demand for slaves greatly

increased. As Thomas Jefferson said, “Slavery is like holding a wolf by its ears. You

don’t like it, but you’re afraid to let it go.” The Tenth Amendment, by default, left

the slavery issue up to each state. The omission of slavery from the Constitution,

and indirectly the failure to compromise, would lead to civil war.

Drafting the Constitution

After all issues had been debated and agreement reached, a committee was formed

to draft the Constitution based on those agreements. On Tuesday, August 7, 1787, a

Great Compromise the agreement reached in drafting

the U.S. Constitution that gave

each state an equal vote in the

Senate and a proportionate vote

in the House

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16 Section I A Foundation for Understanding Constitutional Law

draft Constitution was ready for a clause-by-clause review (Armento et al., 1991).

After four months, what had developed is nothing short of amazing. The material

was old, connected back to the Magna Carta, but it was new—with some rather

brilliant concepts. It was the brainchild of a relatively select few, but if it were to

work, it had to be accepted by all. The task was monumental:

In the Constitution that emerged from these deliberations, the concept of gov-

ernment by consent of the governed formed the basic principle; accountability

was the watchword. The rights of the people were to be protected by diffusing

power among rival interests. (Mitchell, 1986, pp. 1–2)

The final document was put before the Convention on September 17. Following

are the provisions of the articles contained in the final draft of the Constitution.

The Constitution of the United States: An Overview Descriptions of the debates that forged the Constitution during the summer of 1787

in Philadelphia are fascinating, and this is certainly worthwhile reading for those

who wish to pursue it further. The following condensation

describes the results of those debates—the articles contained in

the final draft of the Constitution (Lieberman, 1976, pp. 33–41).

The Constitution is both a structure for government and a set

of principles, that is, a method for making law and a law itself. Of

all the principles in this 7,000-word document, the single most

important principle is that the government has been delegated its

powers by the people. The government is not superior to them; its

powers come only from them.

Article 1: The Legislative Branch

Article 1 establishes the legislature: “All legislative Powers herein granted shall be

vested in a Congress of the United States.” This legislature may pass laws, but it has

no power to enforce or interpret them. This article contains the Great Compromise.

Congress has two chambers, a Senate and the House of Representatives, each acting

as a check against the other. Senators are chosen by each state’s legislature, with

each state having two senators, and each senator having one vote. (Senators are no

longer chosen by state legislatures.)

Laws of the United States—in the form of bills—may originate in either house.

The sole exception is that only the House of Representatives may first consider

“bills for raising revenue.” The cry “no taxation without representation” was still

strong. Only the popular body, the house representing the people, was given the

power to initiate taxes.

All bills must clear three hurdles before they can become laws. They first must

pass each house in identical form and then meet the approval of the president. The

president has the power to veto, but Congress, in turn, can override that veto if each

house, by a two-thirds vote, chooses to do so.

Section 8 of Article 1 grants specific powers to Congress, including coining

money and establishing post offices, as well as the power to

The fi rst three articles of the Constitution es tablish the legislative, exec utive, and judicial branches of government and the country’s system of chec ks and balances .

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Chapter 1 A Historical Overview 17

■ Lay and collect taxes. ■ Borrow money on the credit of the United States. ■ Regulate international and interstate commerce. ■ Naturalize foreign-born citizens. ■ Raise and govern the military forces. ■ Declare war.

In what has come to be known as the “elastic clause,” Congress also was given

the power “to make all Laws which shall be necessary and proper for carrying into

execution the foregoing Powers, and all other Powers vested by this Constitution in

the Government of the United States, or in any Department or Officer thereof.” In

other words, Congress was granted an enormous potential reserve of power to do

what was “necessary and proper” to pass laws for the nation. For the first time, the

new Congress could do what the old Congress could not: enact laws that directly

affected the people.

The Supreme Court addressed the necessary and proper clause in McCulloch v. Maryland (1819), establishing the authority of the federal government to address national issues. Historically, the clause caused considerable debate because of con-

cern that it was too open-ended and could lead to excessive federal authority. How-

ever, the need to permit Congress to make necessary laws and carry out their

enumerated powers was acknowledged in McCulloch v. Maryland, a need reinforced in Kinsella v. Singleton (1960). In this later case, the clause was not considered a grant of federal power, but a declaration that Congress does possess the means needed to

carry out its authority as set forth in the Constitution to run the country by enacting

laws that are necessary and proper.

Article 1 is just one building block of our national government. Like the other

articles and the Bill of Rights, none are exclusive and, in fact, all work together to

prevent any one branch of government from having excessive or exclusive power.

Although Congress is a powerful element of American law, it remains but one com-

ponent required to lawfully interact with the others.

Article 2: The Executive Branch

The office of president was created to carry out the law; to provide a commander in

chief of the military forces; to carry out the nation’s foreign policy, including enter-

ing into treaties with other nations; and to appoint the ambassadors, judges, and

officials needed for the government to function. The president is chosen through a

complex system that uses “electors,” selected by procedures that vary from state to

state. The number of electors equals each state’s number of senators and representa-

tives in Congress. Therefore, it is possible for a president to be elected without

receiving a majority of the popular votes. Whether an electoral college is needed is

a continuing controversy.

As a check against the president’s power, many of the president’s most signifi-

cant actions must be approved by the Senate. For example, treaties require a two-

thirds Senate vote. Judges and appointed executive officials need a majority Senate

vote to be confirmed. In addition, the president must report periodically to Congress

on the state of the Union and may recommend laws Congress should enact. The

president’s most important duty is phrased, characteristically, in general language

requiring that the president “shall take care that the laws be faithfully executed.”

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18 Section I A Foundation for Understanding Constitutional Law

Like the other articles and elements of our legal system, the presidency is not

immune from limitations. Nowhere are absolute rights or privileges guaranteed

because of the ever-present tension between the people’s rights and the government’s

needs. Individuals do not have boundless freedoms, and their government does not

have boundless power, including the presidency. Although the president has great

power, it is not absolute. A president can be impeached or removed from office.

Although two presidents have been impeached (Andrew Johnson and Bill Clinton),

none have actually been removed from office. No public figure can completely escape

public or private accountability, as evidenced by the Supreme Court permitting the

sexual harassment suit by Paula Jones to proceed (Clinton v. Jones, 1997).

Article 3: The Judicial Branch

The third article completes the national government structure, vesting judicial power

in the U.S. Supreme Court, as discussed in depth in Chapter 3. Congress is also

empowered to create lower courts. Federal court judges are appointed by the presi-

dent and hold office for life.

As a check against judicial power, Congress is authorized to regulate the courts’

dockets by deciding what kinds of cases the Supreme Court may hear on appeal.

This power of Congress to regulate the courts’ jurisdiction further illustrates how

each branch of government is given significant power to affect the others. Congress

enacts laws, but the president may veto them, and the courts may interpret them.

Federal versus State Power The fact that powers not specifically delegated to

the federal government were reserved for the states and the people has been a big

issue. Many court cases and policy debates revolve around that issue. Slavery, seg-

regation, education, transportation, and environmental concerns, such as migrating

waterfowl versus nonmigratory birds and the like, are all issues that at one time or

another have inspired debate on the role of the federal government versus that of

state government.

Checks and Balances The Constitution established an effective system of

checks and balances on the power of any one of the three branches of government.

The president has veto power, but Congress can override with two-thirds majority

vote. The president nominates Supreme Court Justices, but the legislative branch

confirms or denies the nomination. The president is commander in chief, but the

legislative branch declares war and pays for it.

Article 4: Other Provisions

Article 4 contains a variety of provisions, some taken over from the Articles of Con-

federation, further describing the creation of the federal union. The article also

deals with criminal extradition, formation of new states, and Congress’s power to

govern in territorial lands not yet states.

Article 5: The Amendment Process

Article 5 dictates how the Constitution may be amended. An amendment must first

be approved by a two-thirds vote in each house of Congress. It is then submitted to

the states for ratification, requiring the approval of three-fourths of the states to

The balance of power was es tablished vertically through the separation of power bet ween the federal government and the states and laterally through the three branches of government with its system of chec ks and balances .

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Chapter 1 A Historical Overview 19

pass the amendment. The people may also begin the amendment process if the

legislatures of two-thirds of the states call for a constitutional convention. This

article was extremely important in allowing the Bill of Rights to be added to the

Constitution, as discussed shortly.

Article 6: The Constitution as the Supreme Law

The second section of Article 6 contains the famous supremacy clause:

The Constitution and the Laws of the United States which shall be made in Pur-

suance thereof; and all Treaties made, or which shall be made, under the Author-

ity of the United States, shall be the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.

Here, in a stroke, was the solution to the problem of dual sovereignty of the

federal and state governments. It was denied. In matters over which the Constitu-

tion grants the federal government authority, the states must concede.

This clause establishing the supremacy of federal law did something else

momentous: It permitted the Supreme Court to become the ultimate decision

maker in whether laws and actions of the government circumvent the Constitution

and to invalidate them if they do so. This article also requires the allegiance of every

federal and state official to the Constitution.

The Signing of the Constitution

Once the overall format was agreed on, the next step was to seek approval of the

document by the delegates. After hearing the debate over the final version of the

Constitution, Benjamin Franklin, on Saturday, September 15, 1787, eloquently

urged the convention to respect the spirit of compromise:

I confess that there are several parts of this Constitution which I do not at present

approve. But I am not sure I shall ever approve them. For having lived long, I

have experienced many instances of being obliged by better information or

fuller consideration, to change opinions even on important subjects, which I

once thought right, but found to be otherwise . . . . I consent, Sir, to this Constitu-

tion because I expect no better and because I am not sure that it is not the best.

(Lieberman, 1987, p. 447)

Franklin urged, “Every member of the Convention who may still have objections to

it [the Constitution], would, with me, on this occasion doubt a little of his own infal-

libility, and . . . put his name to this instrument.” He moved that the Constitution be

approved unanimously and signed by those states present. The delegates voted to

accept the Constitution, and the following Monday, September 17, it was ready to

be signed.

Forty-two of the 55 delegates were present on September 17 to sign the Consti-

tution, with only three members refusing to sign, including George Mason, who

cited the lack of a bill of rights as a remaining concern. He proposed adding a bill

of rights, but other delegates argued that the individual states’ declarations of

rights would sufficiently protect individual liberties. They voted against adding a

In the supremacy clause, the Constitution dec lared itself the supreme law of the land.

supremacy clause Constitutional doctrine that

federal law will reign when there

is conflicting state law (U.S.

Const. Art. VI, Paragraph 2)

The U.S. Constitution was signed in Philadelphia on September 17, 1787.

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20 Section I A Foundation for Understanding Constitutional Law

bill of rights. James Madison was quoted (The Records of the Federal Convention

of 1787):

Whilst the last members were signing it, Doctor Franklin looking towards the

President’s chair, at the back of which a rising sun happened to be painted,

observed to a few members near him, that painters had found it difficult to dis-

tinguish in their art a rising from a setting sun. I have, said he, often in the course

of the session . . . looked at that [sun] behind the President without being able to

tell whether it was rising or setting. But now at length I have the happiness to

know that it is a rising and not a setting sun. (Armento et al., 1991, p. 133)

The delegates agreed that the Constitution should next be submitted to special

conventions of the states for ratification.

Ratification

Although the delegates to the Constitutional Convention had agreed to the makeup

of the Constitution, each state had to approve, or ratify, it. Delaware was the first

state to do so. New Hampshire cast the decisive vote, but ratification was not a sure

thing. Many people had grave reservations. Although they were

all supportive of the Constitution, the dispute tended to be more

about how strong or weak the central government should be.

Political leaders such as Alexander Hamilton, James Madison,

and John Jay wrote powerful essays in a newspaper called The Feder- alist Papers, which encouraged the ratification of the Constitution and the formation of a strong national government. The anti-Federalists,

however, feared such a strong federal government; what would

assure the country that this attempt would not fail, too? Further, they were reluctant to

ratify the Constitution without a bill of rights to guarantee individual liberties.

The anti-Federalists were not successful in blocking the final ratification of the

Constitution, but they did raise awareness regarding the need for a bill of rights.

Because the Constitution primarily addressed the formation of a government with

limited and distributed powers, a bill of rights to protect individuals was not con-

sidered necessary.

After the Philadelphia convention, most of those who drafted the

Constitution could not understand why a bill of rights was such an

issue for many states. They believed the Constitution could stand on

its own. Nonetheless, most Federalists were willing to compromise

on this issue to ratify the Constitution and establish a new govern-

ment. Fearing defeat in the Massachusetts ratifying convention,

Federalist leaders sought support by drafting a list of amendments, additions to

improve the Constitution. They enlisted John Hancock, the most popular man in Mas-

sachusetts, to present these amendments to the state convention. The proposed amend-

ments made the Constitution acceptable to many who had opposed ratification.

The compromising strategy of the Massachusetts Federalists turned the tide of

ratification. As other states debated ratification, they also insisted on amendments

that would guarantee individual rights.

The Bill of Rights became part of the Constitution in 1791 by the addition of

10 amendments designed to ensure that the national government would not inter-

fere with individual liberties. By December 15, 1791, the states had ratified 10 of

ratify approve a constitutional amendment

amendments changes to a constitution or bylaws

The Federalist s favored a strong central government. They were greatly challenged by the anti- Federalist s, wh o favored a weaker central government.

Federalists colonists who favored a strong federal

government

anti-Federalists colonists who opposed a strong federal

government

Some states opp osed the Constitution bec ause it did not contain a bill of rights.

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Chapter 1 A Historical Overview 21

the 12 proposed amendments to the Constitution, and the United States had a Bill

of Rights. Figure 1.1 illustrates the timeline of events occurring in the United

States and elsewhere between the 1620 landing of the Mayflower and the 1791

ratification of the Bill of Rights.

A Balance Is Struck with the Bill of Rights The framers of the Constitution sought to balance the powers of the legislative,

executive, and judicial branches of government. The proposed amendments aimed

at balancing the rights of the states and of individual citizens against the powers of

the central government. In December 1791, the 13 states had passed the 10 amend-

ments that constitute the Bill of Rights. Proof of how well the Constitution would

work was seen by the fact that it could, as a single document, embrace the additions

that those it was drafted to serve determined necessary. Thomas Jefferson’s com-

ment on this process was of great significance: “The example of changing a Consti-

tution by assembling the wise men of the State instead of assembling armies.”

The Bill of Rights is intriguing because, whereas the Constitution was general,

the amendments were specific. However, even these directives have offered enough

room for interpretation to keep a steady flow of constitutional cases before courts

at all levels.

The Bill of Rights continues as an outgrowth of the Magna Carta. The English,

including those who left to establish the United States, found that documenting

their laws reduced the likelihood of abuse, misunderstanding, or being forgotten.

Because the charters and compacts of the colonies were all different, the benefits of

some uniformity in a national set of laws made sense.

It was illogical for civil liberties to be safe from an overly strong federal govern-

ment, only to be abused by the states. And it made even less sense for some states

to have a version of a bill of rights and others to have none. James Wilson of Penn-

sylvania suggested, “An imperfect bill of rights was worse than none at all because

the omission of some rights might justify their infringement by implying an unin-

tended grant of government power” (Levy, 1999, p. 21).

Americans were becoming more comfortable with a clearly established, written

law. Documented agreements worked. Recognizing that certain rights were so

important to the country to ensure that no government, state or federal, could

infringe on them, the Bill of Rights was finally agreed on. To this day, amendments

are not taken lightly, and adding or deleting amendments is extremely difficult.

Had the Constitution been ratified without a bill of rights, it would have taken

several years for those protections to be passed. By taking the form of amendments,

these provisions became an integral part of the Constitution that many had argued

be included originally. As noted by Supreme Court Chief Justice Warren E. Burger

during the Constitution’s bicentennial (Armento et al., 1991, p. 26):

The Founders, conscious of the risks of abuse of power, created a system of lib-

erty with order and placed the Bill of Rights as a harness on government to

protect people from misuse of the powers. The evils of tyranny even today fall

on most of the world’s people and remind us of what life would be like without

our respect for human dignity and freedom. We must never forget what our

strength was meant to serve and what made that strength possible—the Consti-

tution and the Bill of Rights as they stand today.

In 1791, 10 amendments, known as the Bill of Rights, were added to the Constitution to ensure the individual rights of American citizens.

MYTH The guarantees of “Life, Liberty,

and the Pursuit of Happiness” are

Constitutional rights.

REALITY This phrase is stated in the

Declaration of Independence, not

the Constitution. However, the

Fifth Amendment does guarantee

Constitutional protection to “life,

liberty, or property,” stating the

government cannot deprive

anyone of these things without

due process of law.

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22 Section I A Foundation for Understanding Constitutional Law

The Bill of Rights: An Overview

Sections II, III, and IV of this text focus on the Bill of Rights, as well as additional

amendments made to the Constitution. Most laws and controversies deal with

these amendments. The following brief introduction to each of the first 10 amend-

ments provides an overview on which later discussions can be based.

The First Amendment lists important individual liberties, including freedom of religion, speech, and the press:

Congress shall make no law respecting an establishment of religion, or prohibit-

ing the free exercise thereof; or abridging the freedom of speech, or of the press,

or the right of the people peaceably to assemble, and to petition the Government

for a redress of grievances.

These freedoms are so basic to the American way of life that they are sometimes

referred to as “First Amendment rights.”

The Second Amendment preserves the right of the people “to keep and bear arms”:

1750170016501600 1755 1760 1765 1770 1775 1780 1782

1776 Declaration of Independence

1759 British take Quebec

1754 French and Indian War begins

1620 Mayflower compact

1763 Treaty of Paris is signed

1765 Stamp Act is passed

1773 Boston Tea Party

1770 Boston Massacre

1774 First Continental Congress meets

1775 Battles of Lexington and Concord

1781 Articles of Confederation go into effect

Figure 1.1 Timeline of Events

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Chapter 1 A Historical Overview 23

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.

The courts have ruled that this is not an absolute right. Laws prohibiting private

paramilitary associations and carrying concealed weapons have been upheld.

The Third Amendment prohibits the government from housing soldiers in private homes during peacetime without the owner’s consent:

No Soldier shall, in time of peace, be quartered in any house without the consent

of the Owner, nor in time of war but in a manner to be prescribed by law.

This is the only amendment that the government has never tried to violate (Lieberman,

1976, p. 46).

The Fourth Amendment is concerned with the right to privacy and security:

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 War-

rants shall issue, but upon probable cause, supported by Oath or affirmation,

17921784

1787 English settlement for freed slaves founded in Sierra Leone

1788 Bread riots in France

1789 Martin Klaproth discovers uranium

1791 Bill of Rights passed

Events in the United States

Events elsewhere

1790

1787 Northwest Ordinance passed/Constitutional Convention meets

1785 Russians settle the Aleutian Isles

1784 Serfdom abolished in Denmark

1786 Shays’ Rebellion

1786 Lord Cornwallis becomes Governor-General of India

1788 Constitution goes into effect

1786 1788

Figure 1.1 (Continued) ©

C e n g a g e L

e a rn

in g 2

0 1 5

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24 Section I A Foundation for Understanding Constitutional Law

and particularly describing the place to be searched, and the persons or things

to be seized.

The Fourth Amendment forbids the government or its agents from searching indi-

viduals, their homes, or their personal possessions or from seizing them unless the

government has “probable cause” to believe a crime has been committed. If such

probable cause exists, a search warrant describing in detail what (or who) is to be

seized should be obtained. (This capsule description is necessarily loose: the police

need not obtain warrants for every arrest or for every search. The past 15 years have

seen an enormous volume of litigation over the precise limits of this amendment.)

The Fifth Amendment sets forth several restrictions on how the government may treat a person suspected of a crime:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual service, in time of War

or public danger; nor shall any person be subject for the same offence to be twice

put in jeopardy of life or limb; nor shall be compelled in any criminal case to be

a witness against himself; nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for public use, without

just compensation.

The Fifth Amendment establishes the need for a grand jury indictment for felony

cases. It prohibits double jeopardy, meaning a person acquitted by a jury of a crime

may not be retried for the same offense. It prohibits the government from forcing a

person to testify against himself; hence the expression “pleading the Fifth.” It also

contains the famous due process clause: “nor shall any person . . . be deprived of life,

liberty, or property without due process of law.”

The Sixth Amendment describes the requirements for a fair trial:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall

have been committed, which district shall have been previously ascertained by

law, and to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of Counsel for his

defense.

The trial must be convened speedily and must be public. The accused is entitled to

an impartial jury in the community where the crime occurred and must be advised

of the crimes being charged. Accused individuals must also be allowed to cross-

examine witnesses who testify against them. In addition, they can compel witnesses

who will testify in their favor to come to court. Finally, they have the right to be

represented by a lawyer.

The Seventh Amendment preserves the right to trial by jury in common law cases “where the value in controversy shall exceed twenty dollars”:

In Suits at common law, where the value in controversy shall exceed twenty dol-

lars, the right of trial by a jury shall be preserved, and no fact tried by a jury, shall

be otherwise re-examined in any Court of the United States, than according to

the rules of the common law.

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Chapter 1 A Historical Overview 25

This amendment is one of the few clauses in the Constitution that includes a figure

that has lost meaning over the years. By law today, federal courts cannot hear cases

where the contested value is less than $10,000, unless a federal law is involved. The

amendment also forbids courts to reexamine facts found by juries, except as the

common law permits.

The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

This is the amendment that opponents of capital punishment most frequently cite.

The Ninth Amendment answered the objections of those who thought that nam- ing some rights but not all might result in the government’s claiming more power

than was intended:

The enumeration in the Constitution, of certain rights, shall not be construed to

deny or disparage others retained by the people.

The Tenth Amendment further underscores the framers’ intent to reserve certain powers to the states and to the people:

The powers not delegated to the United States by the Constitution, nor prohib-

ited by it to the States, are reserved to the States respectively, or to the people.

This amendment establishes no rights nor takes any away. It is a reminder that the

government is for the people, not the reverse.

The U.S. Constitution and its amendments are provided in Appendix A.

A Living Law

The inclusion of the Bill of Rights stands as an example of how the U.S. Constitution

lives. It is neither unchangeable nor unresponsive. It is not merely a piece of paper

locked away in a vault in Washington, DC. The framers took a lot of good ideas

referenced previously and, with the political skill of compromise, developed a

workable form of government that continues to this day. It was designed to grow,

develop, and be redefined if necessary to best serve the people’s needs. Study of the

amendments and how they have been interpreted since their inception makes it

obvious that the Constitution is a living document that grows with the citizens it

was written to protect.

A Nearly Timeless Document The final draft of the Constitution established a broad framework for the new

American government. For more than 200 years, the Constitution has been flexible

enough to meet the nation’s changing needs without extensive formal revision.

Although the framers of the Constitution would find many modern governmental

practices quite foreign, the basic system continues to operate as they planned. Rec-

ognizing the importance of ensuring in practice the division of power, Madison

suggested this could best be done “by so contriving the interior structure of the

government as that its several constituent parts may, by their mutual relations, be

the means of keeping each other in their proper places.”

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26 Section I A Foundation for Understanding Constitutional Law

Lieberman (1976, p. 49) notes, “The Constitution has the distinction of being an

almost timeless document but for one grievous flaw. It did not abolish slavery.”

Lieberman continues,

Those who detested slavery reconciled themselves to this grievous and glaring

flaw that contradicted the Declaration of Independence at its most solemn

point—that all men are created equal—by assuming that slavery would in time

vanish naturally. But it would not go away so easily. The compromise that saved

the Union could not be peacefully eliminated, and the amendments that would

make the Constitution true to itself could come about only after the bloodiest

war in American history. (p. 49)

Although nearly timeless, the Constitution reflects the will and values of the people

who originally drafted it and those charged with maintaining it. For example,

whereas the Constitution as originally ratified did not prevent slavery and other

discriminations, the ability of our law to be amended (in this case by the Fourteenth

Amendment) speaks volumes about the American spirit to learn, even from its own

mistakes.

Where the Declaration of Independence, U.S. Constitution, and Bill of Rights Are Today

The Declaration of Independence, which established the

United States as an independent nation, the Constitution,

which established its form of government, and the Bill of

Rights have been carefully preserved.

These valuable documents are contained in ballisti-

cally resistant casements and displayed under armed

guard.

The Constitution and Bill of Rights failed to abolish slavery.

The Dec laration of Independence, the U.S. Constitution, and the Bill of Rights are housed in the Rot unda for the Charters of Freedom at the National Archives in Washington, DC.

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Chapter 1 A Historical Overview 27

Summary From the beginning, the colonists sought structure

and collaboration. Law is a body of rules promul-

gated (established) to support the norms of that soci-

ety, enforced through legal means (i.e., punishment).

The U.S. Constitution was written to serve the needs

of a pluralistic society. Pluralism refers to a society in which numerous distinct ethnic, religious, or cultural

groups coexist within one nation, each contributing

to the society as a whole.

The history of the Constitution is rooted in the

colonists’ desire for freedom from foreign rule. The

colonists resisted increased taxes because they felt it

was taxation without representation. The Boston

Tea Party, in which colonists boarded British ships

and threw their cargos of tea in the harbor, repre-

sented the colonists’ unwillingness to pay taxes

without representation.

As tension between the British and the colonists

increased, the First Continental Congress was called

and resulted in the first written agreement among the

colonies to stand together in resistance to Great Brit-

ain. The British retaliated by sending more troops to

quell the “rebels.” In 1775, the Second Continental

Congress established the Continental Army and

named George Washington as its commander. On

July 4, 1776, the president of the Congress signed the

American Declaration of Independence, which for-

mally severed ties with Great Britain.

The Congress also drafted the Articles of Con-

federation, which formally pledged the states to “a

firm league of friendship,” and “a perpetual union”

created for “their common defense, the security of

their liberties,” and their “mutual and general wel-

fare.” This loose governmental structure proved

unsatisfactory and resulted in the colonists seeking

a stronger central government—one established by

the Constitution.

The U.S. Constitution was greatly influenced by

the Magna Carta, which established the supremacy

of the law over the ruler and guaranteed English

feudal barons individual rights and “due process of

law,” including trial by jury. Americans continued

to believe in the principles contained in the Magna

Carta, which was a precedent for democratic gov-

ernment and individual rights and the foundation

for requiring rulers to uphold the law. The Magna

Carta greatly influenced the writers of the U.S.

Constitution.

The purpose of the Constitution was to establish

a central government authorized to deal directly

with individuals rather than states and to incorpo-

rate a system of checks and balances that would

preserve the fundamental concepts contained in the

Magna Carta, that is, to limit the power of the gov-

ernment. The first three articles of the Constitution

establish the legislative, executive, and judicial

branches of government and the country’s system of

checks and balances. The balance of power was

established vertically through the separation of

power between the federal government and the

states and laterally through the three branches of

government with its system of checks and balances.

In the supremacy clause, the Constitution declared

itself the supreme law of the land.

The U.S. Constitution was signed in Philadelphia

on September 17, 1787. The next step was for the

individual states to ratify it. The Federalists favored

a strong central government. They were greatly chal-

lenged by the anti-Federalists, who favored a weaker

central government. Some states opposed the Consti-

tution because it did not contain a bill of rights. In an

important compromise, 10 amendments, known as

the Bill of Rights, were added to the Constitution in

1791 to ensure the individual rights of American citi-

zens. The Constitution and Bill of Rights had one

serious shortcoming: They failed to abolish slavery.

The Declaration of Independence, the U.S. Constitu-

tion, and the Bill of Rights are housed in the Rotunda

for the Charters of Freedom at the National Archives

in Washington, DC.

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28 Section I A Foundation for Understanding Constitutional Law

Discussion Questions 1. Few people could live together and not have laws.

Why?

2. Does pluralism have any negative aspects? Why have some fought so hard against the concept in the United States?

3. Do demonstrations such as the Boston Tea Party have any effect? Are they positive or negative?

4. What factors make it amazing that any organization among the colonies was successful?

5. Were the Articles of Confederation a wasted effort or were they needed?

6. What do you think about the Constitutional Convention being closed to the public? Was this necessary?

7. Why is the Constitution called a living document? Give examples.

8. What do you think the anti-Federalists were really afraid of?

9. Why should the Bill of Rights not have been left up to each state to develop on its own?

10. If the U.S. Constitution works so well, why do all countries not adopt it?

References Armento, Beverly J., Nash, Gary B., Salter,

Christopher L., and Wixson, Karen K. A More Perfect Union. Boston: Houghton Mifflin Company, 1991.

Beard, Charles A., and Beard, Mary R. The Beards’ New Basic History of the United States. Garden City, NY: Doubleday & Company, Inc., 1968.

Brown, Richard C., and Bass, Herbert J. One Flag, One Land. Morristown, NJ: Silver Burdett and Ginn, 1990.

Divine, Robert A., Breen, T. H., Fredrickson, George M., and Williams, R. Hal. America: The People and the Dream. Glenview, IL: Scott, Foresman and Company, 1991.

Jacoby, Jeff. “56 Who Pledged Their Lives, Fortunes, Sacred Honor.” Boston Globe. Reprinted in (Minneapolis/St. Paul) Star Tribune, July 4, 2000, p. A11.

Levy, Leonard W. Origins of the Bill of Rights. New Haven, CT: Yale University Press, 1999.

Levy, Leonard W., and Mahoney, Dennis J., eds. The Framing and Ratification of the Constitution. New York: Macmillan Publishing Company, 1987.

Lieberman, Jethro K. Milestones! St. Paul, MN: West Publishing Company, 1976.

Lieberman, Jethro K. The Enduring Constitution: A Bicentennial Perspective. St. Paul, MN: West Publishing Company, 1987.

Mitchell, Ralph. CQ’s Guide to the U.S. Constitution: History, Text, Glossary, Index. Washington, DC: Congressional Quarterly, Inc., 1986.

Simmons, R. C. The American Colonies. New York: D. McKay Company, 1976.

Cases Cited Clinton v. Jones, 520 U.S. 681 (1997) Kinsella v. Singleton, 361 U.S. 234 (1960) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)

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CHAPTER 2 An Overview of the U.S. Legal System

The law must be stable, but it must not stand still.

—Roscoe Pound

. G

in o

S a

n ta

M a

ri a

/S h

u tt

e rS

to ck

.c o

A view of the St. Louis, Missouri, courthouse.

iStockphoto/Thinkstock

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30 Section I A Foundation for Understanding Constitutional Law

■ What two prominent theories about the underlying purpose of law are?

■ What two competing value systems (models) are often identified

when discussing the purpose of the criminal justice process?

■ What the basic purpose of the U.S. legal system is?

■ What the scales of justice symbolize in law?

■ When common law began, what it is based on, and what it is

synonymous with?

■ What stare decisis requires?

■ How the Constitution ensures individual liberty?

■ Why U.S. law is said to be a living law?

■ Where statutory law originates?

■ The difference between a crime and a tort?

■ What a legal citation is and what it includes?

■ What the components of a legal opinion are?

■ What six sections are usually included in a case “brief”?

■ How to determine whether a case has been overturned or expanded on?

■ What two main functions are served by courts?

■ On what two levels the judicial system operates?

■ Who officers of the court are?

■ What doctrines govern whether a case will be heard in court?

■ What the three components of the criminal justice system are? the

juvenile justice system?

Do You Know . . .

Can You Define? adversarial judicial

system

affirm

amicus briefs

appellate jurisdiction

brief

caption

case law

codified law

common law

comparative law

concurrent jurisdiction

concurring opinion

conflict theory

consensus theory

Crime Control Model

crimes

dicta

dissenting opinion

Due Process Model

exclusive jurisdiction

general jurisdiction

holding

jurisdiction

legal citation

limited jurisdiction

mootness

ordinances

original jurisdiction

penal codes

petition for certiorari

procedural law

promulgate

remand

reverse

ripeness doctrine

Shepardizing

social contract

standing

stare decisis

status offenses

statutory law

string cites

substantive law

tort

vacate

venue

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Chapter 2 An Overview of the U.S. Legal System 31

Introduction This chapter describes the U.S. legal system and how it operates. Through under-

standing how it operates comes an appreciation of the crucial role the U.S. Constitution plays in achieving the primary goals of the framers of the Constitu-

tion—liberty, freedom, and fairness.

The chapter begins with a discussion of the theories about and purpose of the

U.S. legal system and a definition of law and how it has developed throughout the

centuries, followed by a look at the continuing need for law and a discussion of U.S.

law as living law. This discussion is followed by a description of categories of law,

often overlapping, found in the U.S. legal system and how to research the law when

you need more information about a legal case or concept. Next is a discussion of the

U.S. court system and the officers of the court. The chapter concludes with an expla-

nation of the adversarial nature of the judicial system, a discussion of the various

components of the U.S. legal system, and a look at the emerging influence of U.S.

law beyond our borders.

Theories about and the Purpose of the Legal System Futurist Joel Barker defines a paradigm as a boundary or parameter that outlines a rule and is based on experience. Sociologist Max Weber contends that the primary

purpose of law is to regulate human interactions—to support social function. Com-

bining these two views leads to the concept that a society’s legal paradigm defines

the behavioral boundaries of that culture.

As law evolves, different theories emerge to explain its development. People

want to know not only what the law is but also why it exists as such. One theory is natural law, which suggests people should not create law in conflict with the natu-

ral order. Legal positivists suggest law is strictly a response to what is occurring at

the moment. Many other theories fill volumes that can be explored independently.

To present a solid base from which to develop an understanding of law and its

development, this text focuses on the basic premise that throughout history law

has regulated human interactions for different reasons: to protect society’s inter-

ests, to deter antisocial behavior, to enforce moral beliefs, to uphold individual

rights, to support those in power, and to punish lawbreakers or seek retribution for

wrongdoing.

Purpose of Law: Consensus Theory versus Conflict Theory

Although many theories exist, two different views address the purpose of laws.

Consensus theory holds that individuals in a society agree on basic values and

on what is inherently right and wrong. Laws express these values. Consensus the-

ory dates back at least to Plato and Aristotle. Society, in general,

agrees on what is right and wrong and makes laws to prohibit

deviant behavior. Consensus theory was expanded on by French

historian-philosopher Montesquieu (1689–1755). His philosophy

focused on the social contract whereby free, independent indi-

viduals agree to form a society and to give up a portion of their

consensus theory holds that individuals in a society agree

on basic values, on what is

inherently right and wrong, and

that laws express these values

social contract a philosophy proposed by French historian-

philosopher Montesquieu,

whereby free, independent

individuals agree to form a

society and to give up a portion

of their individual freedom to

benefit the security of the group

Two prominent theories about the underlying purpose of the law are consensus theory and confl ict theory.

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32 Section I A Foundation for Understanding Constitutional Law

individual freedom to benefit the security of the group. Later, Émile Durkheim

(1858–1917) described social solidarity as the shared values of a society, its “collec-

tive conscience.” The Durkheimian perspective saw punishment as revenge and a

means to restore and solidify the social order.

A second prominent theory regarding the underlying purpose of the law, con-

flict theory, is not as humanitarian. Conflict theory holds that laws are established

to keep the dominant class in power. (Recall that the framers of our Constitution

were the socially, politically, and economically powerful men in the New World.)

The roots of this theory are found in Karl Marx (1818–1883) and Friedrich Engels’

(1820–1895) Manifesto of the Communist Party (1848):

The history of all hitherto existing society is the history of class struggles. Free-

man and slave, patrician and plebeian, lord and serf, guild-master and journey-

man, in a word, oppressor and oppressed stood in constant opposition to one

another, carried on an interrupted, now hidden, now open fight, a fight that each

time ended in either a revolutionary reconstruction of society at large, or in the

common ruin of the contending classes.

Rather than regarding punishment as a way to provide social solidarity, Marx

regarded punishment as a way to control the lower class and preserve the power of

the upper class. This rationale has its roots in the Middle Ages, the Renaissance, the

Reformation, and into the nineteenth century. During those times, society was

divided into a small ruling class, a somewhat larger class of artisans, and a much

larger class of peasants. Harsh laws kept the “rabble” under control.

Conflict theory is used by some sociologists and criminologists to explain how

laws protect the interests and values of the dominant groups in a society:

Conflict theory holds that the administration of criminal justice reflects the

unequal distribution of power in society. The more powerful groups use the

criminal justice system to maintain their dominant position and to repress

groups or social movements that threaten their position. . . . Conflict theory

explains the overrepresentation of racial and ethnic minorities in the criminal

justice system in several ways. . . . “[S]treet crimes” that are predominantly com-

mitted by the poor and disproportionately by racial and ethnic minorities are the

target of more vigorous enforcement efforts than are those crimes committed by

the rich. . . . [The result is] the overrepresentation of racial and ethnic minori-

ties among people arrested, convicted, and imprisoned. (Walker et al., 2012,

pp. 118–119)

The Purpose of the Criminal Justice System: Crime Control versus Due Process

Just as there are competing views on the purpose of law in our society, so too are

there various views as to the purpose of our criminal justice system. Herbert Packer

(1968) has offered a robust explanation of two competing value systems underlying

the administrative purposes of the criminal process.

Under Packer’s paradigm, the operational value of “crime control” exists at one

end of a spectrum and “due process” at the other end. The two extremes are meant

to illustrate the tension between competing interests in the criminal justice system:

the government’s ability to maintain an orderly society (crime control) and the

conflict theory holds that laws are established to keep the

dominant class in power, in

contrast to the consensus theory

Two models oft en discuss ed wh en articulating the underlying purpose of and values served by the criminal justice process are the Crime Control Model and the Due Process Model.

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Chapter 2 An Overview of the U.S. Legal System 33

individual’s right to freedom and protection (due process). In reality, the actual

criminal justice system operates somewhere between these two extremes because it

seeks to balance its duty to both society and the individuals who comprise our

population. The prevailing political and social climates are two factors that influ-

ence where on the spectrum the system currently operates. Throughout our coun-

try’s history, as these sociopolitical climates have shifted, the criminal justice

system has responded by moving one way or the other, to favor efforts aimed at

either more crime control or greater due process.

The Crime Control Model emphasizes the “repression of criminal conduct”

and holds that the most important function of the criminal justice system is to bring

criminal behavior under tight control (Packer, 1968, p. 158). This model requires

efficiency of operation, meaning the criminal justice system must be capable of

processing a high number of cases relatively quickly.

To achieve this goal, police powers to investigate and control crime must be

high, and “technicalities” that limit police power should be reduced or eliminated.

Under this model, the early part of the criminal justice process—the stages at which

the police and prosecutors become involved—is the most crucial. As “gatekeepers”

to the criminal justice system, the police are presumed to be sufficiently accurate

and reliable in their fact-finding investigations to the point that once the “right”

person is identified and arrested, the remaining steps in determining guilt and

sanctioning the guilty (trial, conviction, disposition) are more or less just a matter

of “going through the motions.” In fact, the crime control model dictates that the

criminal justice system operate under a mechanism Packer refers to as the “pre-

sumption of guilt,” meaning if someone is arrested and prosecuted, they are prob-

ably guilty because “the preliminary screening process operated by the police and

the prosecuting officials contain adequate guarantees of reliable fact-finding”

(Packer, 1968, p. 162).

Packer compares the crime-control model of criminal justice to an assembly-line

conveyor belt, in which cases must be continuously pushed through the system for

the process to operate successfully (i.e., efficiently). As such, this model places a

premium on speed, informality, uniformity, and finality. Appeals are to be mini-

mized, again based on the presumption that those whose cases go to trial are prob-

ably guilty and allowing an appeal to set a guilty person free because of a

technicality is to thwart justice. The Crime Control Model concedes the possibility,

indeed the probability, that mistakes will be made and that some innocent people might get caught up in the system. This allowance for error is made tolerable by the

prevailing philosophy that it is better to cast a wide net and make sure the guilty

are caught and punished, even if a few innocents are captured in the net as well,

because crime control is the ultimate goal.

The Due Process Model, in contrast, emphasizes the rights of the individual

and requires that the criminal justice system and its processes for enforcing the law

be fair. This model rests on the presumption of innocence and holds that individual

rights are not to be sacrificed for the sake of efficiency.

Packer makes it clear that the due process ideology is not the converse of crime

control. Although the repression of crime remains an important goal under this

model, it cannot come at the expense of sacrificing individual rights. On the due

process end of the spectrum, it is believed that the fact-finding abilities of the

police and prosecutors are prone to error. For example, error might be caused by

Crime Control Model emphasizes the “repression of

criminal conduct” and holds that

the most important function of

the criminal justice system is to

bring criminal behavior under

tight control as efficiently

as possible

Due Process Model emphasizes the rights of the

individual, rests on the

presumption of innocence, and

holds that individual rights are

not to be sacrificed for the sake

of efficiency.

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34 Section I A Foundation for Understanding Constitutional Law

police bias, coercion, or witness unreliability. “Facts” suggesting a suspect’s guilt

may be exaggerated or entirely wrong, and because of the enormous stakes

involved for the suspect—the coercive power of the state to deprive the accused

individual of their freedom and, possibly, end their life—the criminal justice

system’s foremost purpose is to prevent or eliminate mistakes that lead to wrong-

ful conviction.

Packer likens the due process model to an obstacle course, with sufficient “for-

midable impediments” and hurdles the criminal justice system must clear to push

a case further along (p. 163). Guilt of a suspect must be determined in a formal,

adversarial setting where adequate safeguards are in place to protect the accused.

Due process focuses on legal guilt, which can only be determined by an impartial

court and only after ensuring all procedural rules have been followed. This means

despite factual guilt (crime control), a person cannot be held legally guilty of a

crime unless the rules of criminal procedure are followed (due process). If the

Constitution is violated, which is a serious breach of a safeguard, a person cannot

be convicted.

Packer (1968, p. 153) cautions: “These models are not labels Is and Ought, nor

are they to be taken in that sense. Rather, they represent an attempt to abstract

two separate value systems that compete for priority in the operation of the crimi-

nal process.”

The Challenge: Balancing Individual and Societal Rights

Chapter 1 discussed the challenge facing the framers of the Con-

stitution to balance the rights of individuals against the rights of

society. Recollections of the tyranny of British rulers prompted the

framers of the Constitution to build in many safeguards against

any such tyranny in the United States. Nonetheless, to avoid anar-

chy, a country of laws had to be established. Consider this chal-

lenge: to meet the needs of the individual and the government—a

strong, but not excessive, system of law and order.

Achieving a workable system that balances the rights and

needs of individuals as well as those of the society being served is

no small task. In fact, many have died here, and continue to die in

other countries, fighting for a system of government that provides the freedoms

U.S. citizens now enjoy.

Some argue that in striving to balance individual and societal rights and needs,

the system itself has become so complicated that justice is compromised. Although

the Constitution appears complex, the many laws subsequently enacted to

maintain the balance have created the massively intricate body of law. To those not

educated in the law, it might appear that legal loopholes abound, when in reality

the crucial balance is struck through the passage of new laws and the continual

evolution of existing laws.

Because the Constitution is meant to be basic, it is, by itself, easy to begin to

understand. Students of the Constitution need to grasp the “bigger picture” before

looking at the developments that have occurred in the past 200 years. Details can

get in the way of understanding the system and how it works.

The basic purpose of the U.S. legal system is to ensure fairness in balancing individual and societ al rights and needs, wh ile preventing excess ive government power.

The scales of justice repres ent keeping individual and societ al needs in balance.

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Chapter 2 An Overview of the U.S. Legal System 35

The Law Defined Laws are rules with the power of the government behind them. In the United

States, these rules are created by legislative bodies empowered by the people to

pass laws. The term promulgate means to make law through such legal process.

These laws reflect what the citizenry holds important, and they support the norms

of society by enforcing its rules through legal consequences that are in accordance

with the tenets of the Constitution.

Development of the Law The development of societal rules began the first time people congregated. When

people are together, a norm is established so individuals know what is expected of

them relative to the group as a whole. Whether via de facto rules, which naturally

develop, or de jure results, which are promulgated, some order must arise to pre-

vent chaos. Law generally evolves through four phases:

1. People come together seeking collective security, to collectively gather food, and

to satisfy other mutual needs.

2. They discover that they need rules to maintain order and their sense of

security.

3. Inevitably some individuals break the rules.

4. Consequences are established for breaking the rules.

Of great influence on the U.S. legal system was early Roman law dealing with basic

rules related to economic, religious, and family life contained in the Twelve Tables,

written about 450 b.c.e. These rules were based on tradition and a quest for fairness.

Another important period in Roman history was the rule of Emperor Justinian I

(ruled a.d. 527–565). His Justinian Code distinguished public and private laws and

influenced legal thought throughout the Middle Ages.

Another significant influence on the development of the U.S. legal system was

the system of common law that evolved in England during the Middle Ages. Rather

than smaller groups of people relying completely on local custom to determine

their rules or law, the royal judges traveling through the territories began to apply

a broader or national norm as cases were decided. In essence, the

law became more common throughout the country.

Although initially unwritten, the decisions of the cases heard

became the basis for how subsequent cases were decided. If a cur-

rent case was similar enough to a preceding case, the current case

was decided on the basis of the ruling in the previous case. Even-

tually the cases were written down, and by 1300, recorded deci-

sions were serving as precedent, making it easier to maintain the

continuity of the developing legal system.

This system of common law is the basis for U.S. law, in which the decisions

made in past cases are routinely examined when new cases are considered.

As English Parliament took over the role of promulgating law, the role of com-

mon law courts changed. For example, offenses that once were considered personal

wrongs, such as murder, rape, and burglary, were redefined by English judges as

crimes against the state because such transgressions disrupted the security of the

promulgate to make law through a legal process

Common law began as early English judge-made law, based on customs and traditions that were followed throughout the country. As a term in U.S. law, it is synonymous with case law.

common law early English judge-made law based on

custom and tradition; a legal

system that, as in the United

States, decides present cases on

past decisions

case law common law approach, so named because it

is based on previous cases; as a

term in U.S. law, it is synonymous

with common law

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36 Section I A Foundation for Understanding Constitutional Law

entire community, not just the individual victimized. These redefinitions also made

offenders subject to state control and punishment.

U.S. common law also took on the role of interpreting and

defining existing law, building on itself to forge new law. And

although common law still has the capacity to create law as well

as interpret it, it also depends heavily on predictability through

precedent. Courts continue to rely on prior cases—directly, by

implication or conceptually—to maintain continuity. This conti-

nuity results in current cases being decided in ways that relate to

existing law (from past cases) and provides the U.S. system of law

development a stronger, more predictable basis on which to deter-

mine future cases. This concept is termed stare decisis, a Latin term that literally means “let the decision stand.”

Although this doctrine has its roots in early English law, the court in Moore v. City of Albany (1885) set forth, “When a court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it

to all future cases where facts are substantially the same.” When a legal principle

has been determined by a higher court, lower courts must apply it to all later cases

containing the same or similar facts. Of course, one side will argue that the facts are

the same and, as such, stare decisis dictates that a certain ruling prevail. The other

side will assert that the facts are not exactly the same, and so a different result

should be reached. The doctrine of stare decisis does not, however, prevent the law

from growing, changing, or even reconsidering itself in matters from which unde-

sirable law resulted.

The Continuing Need for Law People need laws to know what behavior is socially and legally acceptable and to

be able to deal consequences to those who do not follow the law. In any society laws

should—must—be obeyed for the good of all. In a sense, obedience to the law is

voluntary. At least in countries that enjoy freedom, people are permitted to carry on

with life’s activities, for the most part, as each sees fit. People obey traffic laws

because they should. They pay taxes because they should. However, people have

freedom to decide, including the decision to not obey laws.

A critical issue arises when those making and enforcing the law act outside the

law. Remember, the purpose of the Constitution remains to limit government

power. The law itself controls government by restricting how and when govern-

ment can and cannot interfere with citizens’ lives. The Latin phrase nulla poena sine lege translates to “no punishment without law.” Similarly, nullum crimen sine lege means “no crime without law.”

U.S. Law Lives Because the needs of any group change as that group itself changes, effective law

should be flexible enough to respond to those changing needs, as introduced in

Chapter 1. Human nature dictates that different needs are perceived at different

times. For example, laws against witchcraft in colonial America are now perceived

as unnecessary and inappropriate, as are laws permitting slavery or prohibiting

stare decisis a common law doctrine requiring that precedent

set in one case shall be followed

in all cases having the same or

similar circumstances, thus

ensuring consistency in the law;

Latin for “let the decision stand”

Stare dec isis is a common law doct rine requiring that prec edent set in one case shall be followed in all cases having the same or similar circumstances , thus ensuring consist ency in the law.

The Constitution ensures individual rights by limiting government power.

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Chapter 2 An Overview of the U.S. Legal System 37

women to vote. Similarly, laws pertaining to the use of drugs have changed as soci-

etal norms have changed, as evidenced by laws dealing with certain uses of mari-

juana (deemed less serious than a decade ago) or the increasing strictness of laws

dealing with driving under the influence. The constitutional amendments dealing

with prohibition provide a concrete example of how law can advance and retreat as

needs and expectations change.

Constitutional amendments are not easily or frequently added or removed. It

takes two-thirds of each house of Congress, or conventions called by two-thirds of

the state legislatures, to propose constitutional amendments. For an amendment to

be ratified, three-fourths of the state legislatures or special conventions must agree.

More than 7,000 amendments have been proposed in Congress, with only 33 of

those passed and submitted to the states, where more fell short of the requisite vote.

When amendments are passed, they reflect true societal changes. Since the Bill

of Rights was ratified in 1791, 17 amendments have been successfully ratified.

Those considered most influential came after the Civil War:

■ The Thirteenth Amendment (ratified in 1865) abolished slavery. ■ The Fourteenth Amendment (1868) prevented the states from denying former

slaves equal protection and due process of law. ■ The Fifteenth Amendment (1870) ensured the right to vote regardless of race. ■ The Nineteenth Amendment (1920) extended the right to vote to women. ■ The Twenty-First Amendment (1933) repealed prohibition, which was ratified

as the Eighteenth Amendment in 1919.

As you develop an understanding of what modern law is and how it developed

from the needs of the earliest gatherings of people, it becomes obvious why it has

reached its level of complexity. With more than 315 million people in the United

States,1 and with the importance we place on pluralism, our needs are varied. A legal

system that responds to such societal diversity and technological change becomes,

out of necessity, complex. One of the complexities is that various categories of law

exist, often overlapping in an effort to respond to society’s changing needs.

Categorizing Law Different aspects of the law interact in ways that may appear confusing at first. For

clarity, go back to the basics: What is the purpose of law? To limit government

power and to provide societal guidelines. Why is there so much law? To strive for

justice and due process in a growing and increasingly complex society with many

different viewpoints. To further clarify, it helps to categorize the law by asking:

Who? How? and What?

Who? (Jurisdiction)

This question is actually twofold: Who makes the law? and Who does the law affect? Who makes the law is whichever group has jurisdiction, or authority, to pro-

mulgate that law. It might be a legislative body, such as the elected or appointed

members of the city council, county board, and state or federal legislatures. Or it

1 According to the U.S. Census Bureau U.S. Population clock, a projected 315,404,508 people were living in the

United States at 1:30 p.m. Eastern Standard Time on February 27, 2013.

jurisdiction the authority of a legislative body to establish a

law, the authority of a particular

court to hear certain types of

cases, or the authority a law has

over a specific group of people

U.S. law is considered a living law bec ause it can change along with societ y.

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38 Section I A Foundation for Understanding Constitutional Law

could be a court that makes decisions through case law or com-

mon law. Who the law affects are the people over which the law-

making group has jurisdiction.

Statutory law can also be referred to as codified law because

it is set forth in organized, structured codes such as the U.S. Crimi-

nal Code or the criminal code of a specific state. Local jurisdictions, such as county

or municipal levels, also enact their own specific codes, often referred to as

ordinances. Of crucial importance is the fact that no statutory law, regardless of the

level of jurisdiction, can violate the Constitution.

A group need not be elected to have authority to promulgate law. Legislative

bodies have the authority to appoint administrative groups to make rules that have

the power of law. The reason administrative agencies may do so is twofold. First,

legislative groups do not have time to address every issue that arises. Second, they

often lack the knowledge to adequately address every issue that arises. So they

appoint people who have the time and expertise. Examples of administrative agen-

cies include federal regulatory agencies such as the Food and Drug Administration.

Examples of state agencies include the fire marshal’s office or the state police licens-

ing board. Other examples include county, city, or other local groups, such as a

metropolitan council, health department, or even a park board.

Remember that courts make law through their holdings that act as rules because

of stare decisis. Whatever they have decided becomes the law and is relied on in

subsequent cases. The fact that courts are making law, but for the most part are not

elected to do so as are legislators, stirs debate. This is especially the case at the

Supreme Court level and is why the ability of a president to appoint justices is

so powerful.

How? (Procedural)

Substantive law establishes rules and regulations, as in traffic law. How the law is

to be enforced is embodied in procedural law. For example, how and when police

can stop people is governed by procedural law. The effects of substantive law being

enforced in violation of law (i.e., by illegal procedure) can result in serious conse-

quences for the government. For example, the exclusionary rule (discussed in

Chapter 7) prohibits evidence obtained in violation of a person’s constitutional

rights to be used in court, no matter how incriminating. This is why it is crucial for

criminal justice professionals to know the law and know when it changes.

What? (Criminal or Civil)

This question asks whether the wrong considered is a public wrong or a private wrong. In other words, who is the victim? The answer affects several critical factors.

Criminal law considers society the victim because whenever a crime is commit-

ted, the act disrupts the community. Although one or possibly more than one victim

is identifiable, if the community’s security is upset, all community members are considered victims. Society’s welfare has been violated. This is why the caption

(name) of a criminal case is the government, representing the people, versus the

defendant (e.g., United States v. Smith, State of Maine v. Jones). Wrongs that disrupt the status quo of the community are called crimes, and criminal laws are found in

each state’s penal codes.

statutory law law set forth by legislatures or governing

bodies having jurisdiction to

make such law

codified law law specifically set forth in organized, structured

codes such as the U.S. criminal

code, state statutes, or local

ordinances

ordinances laws or codes established at the local level, that

is, the municipal or county level

substantive law establishes rules and regulations, as in traffic

law

procedural law how the law is to be enforced, for example,

how and when police can stop

people

crimes acts defined by federal or state statute or local ordinance

that are punishable; wrongs

against the government and the

people it serves

penal codes criminal codes or laws

Statutory (codifi ed) law is promulgated by legislatures or governing bodies .

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Chapter 2 An Overview of the U.S. Legal System 39

If a dispute involves only individuals and affects only them, it

is considered a civil case, and the wrong is called a tort. These

cases are captioned with the name of the aggrieved party bringing

the legal action, generally referred to as the plaintiff, versus the

individual accused of causing the harm, generally referred to as

the defendant. Although there may be more than one plaintiff, as

in the case of a class-action lawsuit, civil cases involve individuals,

and the government usually is not involved.

A drunk driver causing a crash, for example, could be guilty of

the crime of driving under the influence, as well as be held civilly liable for the

injuries caused to others by the tort committed. This example also helps explain

other differences between crimes and torts, including the burden of proof required

and the desired outcome.

In a criminal action, the government must prove its case beyond a reasonable doubt, which one could view as to a 99 percent degree of certainty. It does not mean without any doubt because few decisions in life can be made with no doubts. This is the same standard applied to any of life’s major decisions—marriage, having

children, divorce, taking a new job, or undergoing surgery. Facts are gathered, deci-

sions reached, and action taken. The government is required to meet this high

standard in proving its case because the consequences for the accused are so signifi-

cant, including imprisonment or the ultimate sentence imposed, the death penalty.

The system seeks to ensure, to the highest degree possible, that the government is

right when the ultimate goal of the criminal justice system is punishment.

In a civil action, the plaintiffs have only to prove their case by a preponderance of the evidence, which means “more likely than not,” or to any level of certainty greater than 50 percent. This lower burden of proof exists in the civil arena for several rea-

sons, a primary one being that the defendants do not face the same monumental

loss of freedom as they do if they are found “guilty” in criminal court. Because the

goal of the civil system is to right the wrong by making the victim or plaintiff

“whole” again, civil damages are usually limited to financial awards or injunctions

to return the plaintiff to where they were to begin with, for example, paying on a

broken contract, removing a fence on someone else’s land, or paying to compensate

for a wrongful injury. The civil system also acknowledges that individuals

have limited resources compared with the government and likely could not afford

the experts often used during a criminal investigation, so their use would not

be warranted.

To return to the drunk-driving example, whereas the driver could be charged

criminally because of the disruption caused to the community, the person injured

in the crash could also sue civilly to recoup medical costs and compensate

for injuries sustained. One decision does not depend on the other. In the infamous

O. J. Simpson case, the defendant was acquitted on the criminal charges because the

government could not prove its case beyond a reasonable doubt, but the plaintiffs

in the civil case were successful in proving their case by a preponderance of

the evidence.

A final note, as with the different standards regarding burden of proof, civil

and criminal trials are governed by different procedural rules. Although the rules

in both areas were developed to promote efficiency and predictability and to

protect individual rights, the emphasis differs between the two types of trials

tort civil wrong by one individual against another, with

the remedy most often being

either an order by the court for

particular action or compensation

Civil laws deal with wrongs against individuals—called torts. Criminal laws deal with wrongs against societ y—called crimes . An act may be bot h a tort and a crime.

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40 Section I A Foundation for Understanding Constitutional Law

based on the nature of risk to the accused. In a civil trial, the defendant’s money

and reputation are at risk, and the federal courts are bound by the Federal Rules

of Civil Procedure, which articulate such things as how a lawsuit must be initi-

ated, under what conditions depositions can be taken, or how a claim can be

dismissed before trial as a matter of law. In a criminal trial, however, the stakes

are much greater for the individual, who may lose their freedom or even their life

as the result of a conviction. Thus, in criminal trials there is a heavier emphasis

on procedures that protect the defendant. We usually think of criminal procedure

as the law surrounding the Fourth, Fifth, Sixth, and Eighth Amendments. And

with such constitutional limits in mind, criminal procedural rules have been

developed to address such things as the time of day a search warrant may be

served, who may be present during a grand jury hearing, or how to schedule a

pretrial conference.

Researching the Law Criminal justice professionals, including police officers, are expected to know the

law and when it changes. And it will change throughout your education and your career. Knowing how to research the law is an important skill that enables you to

find answers to legal questions and, perhaps more important, to better understand

the judicial system. Although some departments have legal departments or city

attorneys who try to keep officers updated through regular training, many agencies

do not. Thus, the responsibility falls to the individual officers.

Basic legal research skills are as important as any of the more traditional job-

related skills. As a student of the law and as a criminal justice practitioner, you are

more likely to be looking for legal basics than for the detailed information found in

legal briefs. Criminal justice professionals are not expected to be legal scholars or

expert researchers after this short introduction, but it will be a stepping-stone for

efforts to find and understand U.S. laws.

Sources of Information about the Law

The most authoritative information source about the law is primary information—

the actual cases and the opinions handed down. Sources of primary information for

legal research include the U.S. Constitution, the constitutions of the 50 states, the

statutes of the U.S. Congress and the statutes of the 50 state legislatures, as well as

appellate court decisions of the federal and state courts. However, for the non-

lawyer, it is usually easier to understand secondary information sources, which

select, evaluate, analyze, and synthesize data contained in primary information

sources. Among the important secondary information sources for legal research are

periodicals, treatises/texts, encyclopedias, and dictionaries. These secondary infor-

mation sources usually can be found in a general library or online. A helpful general

resource is a Guide to Law Online, prepared by the Library of Congress Public Ser- vices Division (www.loc.gov/law/help/guide.php). Other useful sources of infor-

mation include the U.S. Supreme Court’s official website (www.supremecourt

.gov/) and www.oyez.org/, which offers audio recordings of oral arguments, access

to full written opinions, breakdowns of how justices voted in cases, and biogra-

phies, as well as a Google map feature to show the location of the case in question.

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Chapter 2 An Overview of the U.S. Legal System 41

An important note about the reliability of sources: Wikipedia and even lesser

respected sites are never considered reliable sources for academic purposes. These

sites should not be used to research the law, nor should they ever be referenced in

academic papers.

With this overview of the sources of information available to research a case,

consider next how to read a legal citation once it is found.

Reading Legal Citations

Case citation is important to understand when researching the

law or, for that matter, even writing a paper. Citations show the

student exactly where to find an important point, right down to

the page, and let the reader know immediately if the case is rele-

vant to the problem they are researching.

Legal citations are usually followed by the date. For example,

the official cite for the Miranda case is Miranda v. Arizona, 384 U.S. 436 (1966). Sometimes additional cites will be given. These are called string cites

or parallel citations. The additional cites show where the case could be found in

other commercial reporting services. A string cite for this case would be Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A more detailed explana- tion of how to read legal citations and string cites is provided in Appendix B.

Locating provisions of federal and state constitutions does not present a prob-

lem. When it comes to case law, however, the situation is different. Millions of

judicial opinions have been written in the United States, with thousands more

published each year.

Reading Case Law

You may find yourself challenged with attempting to read actual case law at some

time. It is helpful to become familiar with some basic concepts and terminology you

will encounter. To begin, the caption (title of the case) tells who is involved. It may

be the government against a criminal defendant (State of Washington v. Smith), or it may be two individuals disputing an issue (Anderson v. Smith). The caption (title) is always italicized.

The parties to the action may be identified by different titles (defendant, plaintiff,

petitioner, respondent), depending on the nature of the case. The particular court

and level of legal action (whether it is an appeal, etc.) will determine whose name

comes first in the caption. This is usually clarified within the first part of the case.

Most cases start in the trial court. The trial court has two basic responsibilities:

to find out what happened and to determine which legal rules should be used in

deciding the case. The trial court makes its decision on the basis of the facts pre-

sented by the lawyers representing both parties (or by the individuals themselves

if not represented by legal counsel), using the legal rules the judge determines are

appropriate to apply to this case. The party that does not emerge victorious may

appeal to a higher court on any number of issues. However, only legal issues will

be reviewed on appeal because new evidence is not permitted. In fact, appeals are

considered only by the appellate judges reviewing written arguments from the par-

ties, along with case transcripts and opinions issued by the previous judge

involved. (Not all cases produce opinions, particularly at the trial court level.)

legal citation a standardized way of referring to a specific

element in the law

string cites additional legal citations showing where a case

may be found in commercial

reporting services

caption the title of a case setting forth the parties involved

A legal citation is a standardized way of referring to a spec ifi c element in the law. It has three basic parts: a volume number, an abbreviation for the title, and a page or sect ion number.

MYTH Appellate courts serve to recheck

the factual issues of a case, allow

witnesses not previously heard

to testify, and use a second jury

to verify that the trial court jury

reached the right verdict.

REALITY Only trial courts determine the fac-

tual issues of a case. An appellate

court does not try factual issues,

nor does it allow new evidence

to be presented or witnesses to

testify. It does not use a jury to

reach its decision. An appellate

court reviews the trial court record

as well as briefs prepared by both

the prosecution and defense, and

it may allow brief oral arguments

from both sides, after which it

determines whether sufficient

evidence exists to support the

findings of the trial court and

whether the trial court followed the

rules of criminal procedure.

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42 Section I A Foundation for Understanding Constitutional Law

Although many issues may be presented in one case, they

may not all be addressed by the court deciding the case.

Whether to save time or perhaps even to avoid other issues

within a case, a court may choose to answer only one issue in

its opinion, leaving the others for future cases.

Court decisions are recorded as opinions, which include

more than simply a statement of who won the court case. Opin-

ions describe what the dispute was about, which legal rules

were applied to the case, and what the court decided and why.

The holding of a case is the rule of law applied to the particular facts of the case

and the actual decision. A court may affirm (support), reverse (overturn), or

remand (return the case to the lower court). It may also vacate (set aside or annul)

a case. An opinion may be written by one member of the court, or there may be

many concurring and dissenting opinions. A concurring opinion is one written by

a justice who agrees with the holding, but who gives additional or different reasons

for voting with the majority. A dissenting opinion is written by a justice who dis-

agrees with the holding and voted against the majority. Some landmark cases have

eight or nine opinions.

Three skills are required to read case law. First, you must think in reverse. The

opinion provides the result of the deliberations. You must isolate what the dispute

involved, what the trial court decided, how it proceeded, and what happened on

appeal. Second, you must untangle the interplay of the basic components of a judi-

cial opinion. Each affects the others in a process that goes back and forth and

around in what may appear to be circles. Third, not all the elements of the judicial

opinion may be included. You must infer them from the decisions made.

Briefing a Case

Once you locate a case, you will want to make some notes to

help you decipher it. Because cases are usually rather long, the

best way to do this is to outline, or brief, the case.

Traditionally, law is taught through case law. This is an

arduous process by which issues and rules are dissected from

court opinions. This discipline is necessary for those intending

to become lawyers because case analysis is the cornerstone of

understanding how and why cases are decided as they are and

why the law in any particular area developed as it did.

Case law, also known as common law, depends on comparing one case with

others. As difficult as the case analysis approach to learning law is, it definitely

has its place. However, this complex approach can hinder understanding the

basics of constitutional law as they apply to criminal justice—the focus of

this text.

You should, however, know what a case opinion looks like, as well as how a

brief of that case might be used to analyze the issues and rules drawn from it.

Opinions also provide judges with an opportunity to express thoughts on issues

not essential to the court’s decision, looking at facts or issues other than those

needed to determine the case. These are called dicta and are not binding on future

courts. A dictum is a means for the majority to address other issues beyond the

holding the rule of law applied to the particular facts of the case

and the actual decision

affirm agree with a lower court’s decision

reverse overturn the decision of a lower court

remand return a case to the lower court for further action

vacate set aside or annul a case

concurring opinion one written by a justice who agrees

with the holding, but who gives

additional or different reasons for

voting with the majority

dissenting opinion written by a justice who disagrees with

the holding and voted against the

majority

brief an outline of a legal case that contains the case name and

citation, a summary of key facts,

the legal issues involved, the

court’s decision, the reasons for

that decision, and any separate

opinions or dissents

dicta statements by a court that do not deal with the main

issue in the case or an additional

discussion by the court

A legal opinion usually contains (1) a des cription of the facts, (2) a statement of the legal iss ues pres ented, (3) the relevant rules of law, (4) the holding, and (5) the policies and reasons that supp ort the holding.

Most case briefs contain the case name and citation, a summary of key facts, the legal iss ues involved, the court’s dec ision, the reasons for that dec ision, and any separate opinions or diss ents.

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Chapter 2 An Overview of the U.S. Legal System 43

facts before them. Consequently, an opinion holds a great deal of information to

be scrutinized.

Two famous, relevant cases illustrate opinions and the briefs that might be writ-

ten from them. Marbury v. Madison (1803) was selected because it is the pivotal case of constitutional law granting the Supreme Court authority to review legislation to

determine whether it is constitutional—and thus legal. Miranda v. Arizona (1966) was selected because it is perhaps one of the most famous constitutional law cases

in criminal justice. The complete opinions for these two cases may be found online.

Appendix C provides the briefs for these two cases.

A great deal more could be addressed regarding the legal process and how to

decipher legal cases and their resulting opinions. However, this text was not

intended to address these specific issues. The goal in this section is to provide the

basic information to seek out the law as needed. One last skill is needed by those

performing actual legal research: going beyond the case itself to

determine if it is still a precedent or if it has been overturned or

expanded—a process known as Shepardizing.

Shepardizing

After a case has been researched, the current status of the

case should be determined because relying on a case that has

been overturned or otherwise rendered invalid could prove

disastrous.

The name comes from a legal service started by Frank Shepard (1848–1902),

who began publishing lists of all the authorities citing a specific case, statute,

or other legal authority. In 1996, Shepard’s was bought by LexisNexis (a

subsidiary of Reed Elsevier). In 1999, LexisNexis released an online version of

Shepard’s Citations to provide a more efficient, faster, and current resource for legal research.

Shepardizing cases is almost the exclusive domain of attorneys and their clerks.

It is improbable that criminal justice practitioners such as law enforcement officers

will actually perform this step in the legal research process; however, it is important

to know the procedure and the term. Appendix D provides an example of a page

from Shepard’s to illustrate the complexity of the process and the amount of detail

that can be obtained. For those readers desiring additional information on research-

ing the law, Appendix E provides information relating to computerized legal

research, a list of URLs to access criminal justice sources online, and step-by-step

guidance on researching a law of interest.

The Court System Recall that Article 3 of the U.S. Constitution established the

federal judicial system: “The judicial Power of the United

States shall be vested in one Supreme Court, and in such

inferior courts as the Congress may from time to time ordain

and establish.” In addition, the congresses of the individual

states have established state supreme courts and inferior

courts.

Shepardizing a case involves using Shepard’s Citations, a reference that tracks cases so legal res earchers can easily det ermine wh ether the original holding has been changed through any app eals.

Shepardizing using the resource Shepard’s Citations, a

reference that tracks cases so

legal researchers can easily

determine whether the original

holding has been changed

through any appeals

The courts’ two main functions are to sett le controversies bet ween parties and to dec ide the rules of law that app ly in the spec ifi c case.

MYTH The majority of criminal cases

filed go to court and are decided

by a trial.

REALITY Few criminal cases actually make

it to trial. The vast majority of

criminal convictions—as much as

90 percent by some estimates—

are the result of plea bargaining.

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44 Section I A Foundation for Understanding Constitutional Law

The types of cases a court can hear depend on its jurisdiction. The term jurisdic- tion refers to

■ The authority of a legislative body to establish a law or a court to hear a case. ■ The authority a law has over a specific group of people.

Three levels of jurisdiction exist: federal, state, and local. In addition, jurisdic-

tion can be original or appellate. Original jurisdiction describes a court autho-

rized to hear cases first, try them, and render decisions. Such courts are often called

trial courts. Appellate jurisdiction describes a court authorized to review cases

and to either affirm or reverse the actions of a lower court.

Courts may also have general or limited jurisdiction. As the names imply, courts

with general jurisdiction may hear a wide range of cases; those of limited

jurisdiction hear a much narrower range of cases. Further, courts may have exclu-

sive or concurrent jurisdiction. Exclusive jurisdiction applies to courts that can

hear only specific cases. Concurrent jurisdiction refers to two or more courts

authorized to hear a specific type of case.

Finally, jurisdiction may refer to a geographical area. A more precise term to

describe the geographic area in which a case may be heard is venue, the place a

specific case may come to trial and the area from which the jury is selected.

Just as the U.S. Constitution established the federal court system, state constitu-

tions establish their own court systems with many variations from state to state.

At either tier, three levels of courts function: a lower level or trial court, an appel-

late court, and a court of last resort, or supreme court, as illustrated in Figure 2.1.

original jurisdiction courts authorized to hear cases first, try

them and render decisions

appellate jurisdiction describes a court authorized to

review cases and to either affirm or

reverse the actions of a lower court

Supreme court

Appellate court

Trial court (original court)

Figure 2.1 Levels in the State and Federal Court System

The U.S. judicial system is two- tiered, consist ing of state and federal court systems. Each includes spec ifi c levels of courts.

general jurisdiction courts having the ability to hear a wide

range of cases

limited jurisdiction restriction of the types of cases a

particular court might hear

exclusive jurisdiction courts that can hear only specific

cases

concurrent jurisdiction two or more courts authorized to

hear a specific type of case

venue the geographic area in which a specific case may come

to trial, and the area from which

the jury is selected

a d sw

o rt

h /C

e n g a g e L

e a rn

in g

MYTH The judge is the only “courtroom

actor” who can dispose of cases.

REALITY The prosecutor often functions in

a judicial capacity and is autho-

rized to negotiate guilty pleas

before a case goes to trial.

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Chapter 2 An Overview of the U.S. Legal System 45

The U.S. legal system was designed to provide individuals with a fair and just

trial conducted under fair rules of procedure in an atmosphere of objectivity.

These levels exist to ensure that if either side thinks procedural rules were vio-

lated, that side can appeal the case to a higher court. This appellate court can

uphold the lower court’s finding, order a new trial, or overturn, reverse, or dis-

miss the charge.

The State Court System

Individual states establish a variety of lower courts with a variety of names.

Figure 2.2 illustrates the state court system. The Bureau of Justice Statistics (BJS)

reports that the aggregate number of newly filed, reopened, and reactivated cases

reported to the Court Statistics Project from the nation’s state trial courts was 103.5

million incoming cases in 2010 (LaFountain et al., 2012). The majority of cases (54

percent) involved traffic offenses, 20 percent were criminal cases, 18 percent were

civil cases, 6 percent involved domestic relations, and the remaining 2 percent were

juvenile cases.

Lower Courts Lower courts include municipal courts, inferior courts of limited

jurisdiction, and county courts. Municipal courts hear ordinance violations, minor

criminal cases, traffic cases, and sometimes more major cases. Their authority is

usually limited to the city or county in which the court is located.

Inferior courts of limited jurisdiction include probate courts, family courts,

police courts, justice of the peace courts, and traffic courts. A few states still have

police courts, courts that try misdemeanor offenses and conduct preliminary exam-

inations to decide whether evidence is sufficient to bring the case to trial in a

higher-level court. Some states have established these inferior courts of limited

jurisdiction to eliminate the expense and inconvenience of traveling to a county or

district court.

County courts often have exclusive jurisdiction over misdemeanor cases and

civil cases involving a limited amount of money. In some states, county courts are

also probate courts and juvenile courts. Some states have combined various courts

under the umbrella of the county courts.

Superior courts are the highest trial courts with general jurisdiction. More than

3,000 such courts exist in the United States. This is where most felony cases enter

the system. Some states call them district courts, circuit courts, or courts of common

plea. These courts may have an appellate department to hear and decide appeals

from the municipal courts.

Intermediate Appellate Courts These courts were created in several states to

reduce the caseloads of state supreme courts. Appealed cases generally go to the

intermediate appellate court first.

State Supreme Courts State supreme courts are the highest courts in a state

and are generally called supreme courts, although some states call them courts of

appeals. These courts are given their power by the individual state constitutions

and generally oversee the intermediate appellate courts and have few areas of

original jurisdiction. If someone petitions the supreme court to review the decision

of an appeals court, this is called a petition for certiorari. A lower court must

abide by the decision of a higher court.

petition for certiorari request that the Supreme Court

or a state supreme court review

the decision of a lower court

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46 Section I A Foundation for Understanding Constitutional Law

State supreme court Court of final resort. Some states call it court of appeals, supreme judicial court, or supreme court of appeals. Oklahoma and Texas have two courts of last resort, one for civil matters and one for criminal.

Intermediate appellate courts Only 39 of 50 states have intermediate appellate courts between the trial court and the court of final resort. A majority of cases are decided finally by these appellate courts. Four states have two intermediate appellate courts.

Superior court Highest trial court with general jurisdiction. Some states call it circuit court, district court, or court of common pleas; in New York, it's called supreme court.

Probate court* Some states call it surrogate court. This special court handles wills, administration of estates, and guardian- ship of minors and incompetents.

County court* These courts, sometimes called common pleas or district courts, have limited jurisdiction in both civil and criminal cases.

Justice of the peace and police magistrate** Lowest courts in judicial hierarchy. Limited jurisdiction in both civil and criminal cases.

Municipal court* In some cities, it is customary to have less important cases tried by municipal magistrates.

Domestic relations court* Also called family court or juvenile court.

Drug court* Specializes in substance abuse matters.

Gun court Handles felony gun cases.

Figure 2.2 State Judicial System

*Courts of special jurisdiction such as probate, family, or juvenile courts, and the so-called inferior courts such as common pleas or municipal courts may be separate courts or part of

the trial court of general jurisdiction.

**Justices of the peace do not exist in all states. Where they do exist, their jurisdictions vary greatly from state to state. Note: In California all justice courts are municipal courts.

www.cengage.com/permissions. Adapted from American Bar Association, Law and the Courts. Chicago: American Bar Association, 1974, p. 20.

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Chapter 2 An Overview of the U.S. Legal System 47

The Federal Court System

The federal court system consists of a number of specialized courts, a number of

district courts with general jurisdiction, 12 circuit courts of appeals, and the U.S.

Supreme Court (Figure 2.3).

Special U.S. Courts Congress has created several specialized courts that sel-

dom involve the criminal justice system. They include the Court of Military

Appeals, the Court of Claims, the Court of Customs and Patent Appeals, the Cus-

toms Court, and the Tax Court.

U.S. District Courts The district courts are trial courts with general, original

federal jurisdiction, that try both civil and criminal cases, the vast majority of which

are civil cases. Each state has at least one district court. Some large states have four.

U.S. district courts with

federal jurisdiction only

(92 districts in 50 states, the District

of Columbia and Puerto Rico)

Administrative quasi-judicial

agencies (Tax Court,

Federal Trade Commission,

National Labor Relations

Board, etc.)

U.S. district courts with federal and

local jurisdiction

(Virgin Islands, Guam)

District Court in Patent Matters

Court of International

Trade Claims court

District appeals from state courts in 50 states

U.S. courts of appeals (11 circuits plus

DC circuit)

Supreme Court of the United States

Federal circuit court

Figure 2.3 Federal Judicial System

www.cengage.com/permissions. Adapted from American Bar Association, Law and the Courts. Chicago: American Bar Association, 1974, p. 20.

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48 Section I A Foundation for Understanding Constitutional Law

The total number of district courts is 94 (92 in the states, 1 in the District of

Columbia, and 1 in Puerto Rico).

U.S. Courts of Appeals Like the intermediate appellate courts at the state

level, the U.S. Courts of Appeals were created to ease the caseload of the Supreme

Court. Each state is assigned to 1 of 11 districts or circuits. The District of

Columbia has its own circuit and court. These courts have jurisdiction over final

decisions of federal district courts. They are the courts of last resort in most fed-

eral cases.

The U.S. Supreme Court The U.S. Supreme Court is the ultimate court of

appeal. Its chief function is as an appellate court. It receives petitions for certiorari

from more than 6,000 cases a year but usually accepts fewer than 10 percent for

review. More than a third of the cases received are from state supreme courts. The

Supreme Court is restricted by an act of Congress to hear only certain types of

appeals from federal appeals courts and state supreme courts. Basically, the cases

must involve a federal or state statute alleged to be unconstitutional. There is no

right to have a case heard by the Supreme Court. It hears only cases of extreme

national importance to set important policy.

The Supreme Court has dealt with such controversial issues as abortion and

school prayer. Bills have been introduced in Congress to prevent the Supreme

Court from ruling on such “moral” issues, leaving it up to the individual states. The

Supreme Court is the only court empowered to handle lawsuits between two states.

Because of its extreme importance in shaping the country’s laws, the next chapter

is devoted to the Supreme Court.

Officers of the Court The legal system does not consist simply of buildings. It is about people. It is there

to serve people and does so through those who play important and varied roles in

the system. Those whose jobs are to carry out the administration of

law are called officers of the court, and this assemblage of profession-

als is commonly referred to as the courtroom work group.

Judges, sometimes called justices or magistrates, are elected in

some states and appointed in others. Judges preside over trials and

hearings and render decisions. They also oversee the selection of juries

and instruct them during jury cases.

Lawyers represent one side or the other. In a civil case, the plaintiff’s lawyer

represents the party bringing suit. In a criminal case, the prosecutor represents the

state. The lawyer representing the accused or answering party is the defense attor-

ney. The lawyers prepare and present their clients’ cases to a judge and sometimes

to a jury.

Clerks of court schedule cases, officially record all business conducted by

the court, and receive and file all official documents related to a case, for exam-

ple, summons and complaints. Sheriffs and marshals serve summons and other

court documents and enforce court orders. Sheriffs function at the state level

and marshals at the federal level. Bailiffs are responsible for keeping the

courtroom proceedings orderly and dignified and for protecting everyone in

the courtroom.

The offi cers of the court are judges , lawyers, clerks of court, sheriff s, marshals, and bailiff s.

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Chapter 2 An Overview of the U.S. Legal System 49

An Adversarial Judicial System After a person is charged with an offense, civil or criminal, sides are drawn—accuser v. accused. The accusing side has the burden of proof to establish guilt. The defen- dant is presumed innocent until this has been accomplished. It is expected that each

side will assert their positions vehemently, not only so that their situation will be

resolved but also so that truth will prevail. This is accomplished by having both

sides provide the strongest legal response possible, a concept difficult to appreciate

by those who lack understanding of the law. For example, a question frequently

asked of defense lawyers is: “How can you defend someone accused of such a hor-

rible crime?” The answer is that even the accused has a right to legal representation

as aggressive as the law allows. It could be a matter of life and death.

The legal system established in the United States is termed an adversarial

judicial system because only in an actual conflict will a judicial body hear the case.

Theoretically, courts will not entertain “what if” questions. Actual people must have

reached an impasse and require a binding decision by a court. In practice, however,

the court has frequently relaxed this barrier, finding exceptions to it and applying it

inconsistently. The abortion case Roe v. Wade (1973), for example, was decided long after the petitioner’s pregnancy had terminated and the controversy ended.

As designed, however, the system places one side against the other, whether the

government against a private party or individual against individual. Although

the system encourages problems to be settled out of court, the system is prepared

to be accessed when necessary.

The overall legal system is organized to provide parties to a case the most acces-

sible tribunal. For example, a matter involving a local building code dispute is best

taken up by a municipal board of adjustments and appeals or the city council. The

violation of a state statute, however, is best dealt with by a state court.

All levels of jurisdiction have avenues of appeals so that matters may be heard

by another body of decision makers. This system provides a degree of checks and

balances and removes the element of personal involvement sometimes present at

the local level.

Doctrines Governing What Cases Will Be Heard In recognition of the fact that not every dispute warrants the attention and

resources of the court, guidelines have been established to govern which cases the

court will hear.

Standing

To bring a case or to argue a legal issue in court, one must have standing, meaning

an actual interest in the matter of dispute. It is not permissible for just anyone to

bring a legal action unless they are actually a party to the matter intended to be

adjudicated. Someone must have been legally wronged or accused of the wrongdo-

ing to be involved in a legal case. For example, in Minnesota v. Carter (1998) the defendant had gone to the apartment of a third-party for the sole purpose of pack-

aging cocaine. An officer, acting on a tip, went to the building and, looking through

standing having an actual interest in the matter of dispute

adversarial judicial system a legal system, such as that used in the United States,

that places one party against

another to resolve a legal issue,

stipulating that only in an actual

conflict will a judicial body hear

the case

MYTH The victim, by filing charges

against a defendant, is granted

considerable say in how a crimi-

nal case will be prosecuted.

REALITY In our adversarial justice system,

a crime is considered an offense

against the state and, therefore,

it is the state, through the

prosecutor’s office, that gets to

determine if and how a case will

be prosecuted. In criminal mat-

ters, it is the government versus

the defendant, and the actual

crime victim is only a witness.

Even in domestic violence cases,

the trend is to prosecute without

a cooperating victim.

Three important doct rines govern wh et her a case will be heard by the court: standing, moot ness , and ripeness .

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50 Section I A Foundation for Understanding Constitutional Law

a gap in the blind of the apartment window, observed Carter packaging cocaine. A

warrant was obtained, the apartment was searched, and the defendant was

arrested. The defense attorney moved to suppress the cocaine and other evidence

seized from the apartment, arguing that the officer’s initial observation through the

window was an unreasonable search violating Carter’s Fourth Amendment rights.

The trial court held that because Carter was not an overnight guest, he was not

entitled to Fourth Amendment protection. The State Court of Appeals held that

Carter did not have “standing” to object to the officer’s actions. The State Supreme

Court, however, reversed and held that the defendant did have “standing” to claim

Fourth Amendment protection because he had a legitimate expectation of privacy.

Finally, the case came before the Supreme Court, which reversed and remanded the

case, ruling that Carter had no expectation of privacy, and thus, no standing to

contest the alleged Fourth Amendment violation because he was in the apartment

for only two hours, had never been there before, and was there for the sole purpose

of packaging cocaine.

The state courts’ analysis of respondents’ expectation of privacy under the

“standing” doctrine was expressly rejected in Rakas v. Illinois (1978). To claim Fourth Amendment protection, a defendant must demonstrate that he or she personally

has an expectation of privacy in the place searched and that this expectation is

reasonable.

People who are not a party to the action may still have an interest and are per-

mitted to submit amicus (“friends of the court”) briefs arguing their perspective.

However, these are only considered at the pleasure of the court and as merely

thoughts of a nonparty.

Mootness

Mootness exists when the issues that gave rise to a case have either been resolved

or have otherwise disappeared so that a court decision would have no practical

effect. An example of a case dismissed for mootness is one in which a group of

students and their parents filed suit challenging the inclusion of two prayers and a

hymn during a 1991 public high school graduation ceremony as unconstitutional.

Although the federal district court rejected the challenge, the circuit court of

appeals declared the practice unconstitutional under the Establishment Clause of

the First Amendment. However, the Supreme Court remanded the case, instructing

the court of appeals to dismiss it as moot because the students who filed the suit

had already graduated. A court can use the mootness doctrine to avoid considering

controversial constitutional issues.

Ripeness

The ripeness doctrine is invoked when a case comes to court too soon. This doc-

trine prevents the court from getting prematurely involved in a case that may even-

tually be resolved through other means. For example, in National Park Hospitality Association v. Department of the Interior (2003) park concessioners challenged a rule made by the National Park Service that made a prior congressional act inapplicable

to contract disputes. However, because the concessioners were challenging the rule

before an actual contract dispute had arisen, the Supreme Court said the case was

not yet ripe for a decision.

amicus brief a “friend of the court” brief submitted by a

person not a party to the action

but interested in the outcome

mootness exists when the issues that gave rise to a case

have either been resolved or

have otherwise disappeared

ripeness doctrine invoked when a case comes to court too

soon, preventing the court from

getting prematurely involved in a

case that may eventually resolve

through other means

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Chapter 2 An Overview of the U.S. Legal System 51

Ripeness may be an issue in disputes between Congress and the president, as

was the case when President Jimmy Carter terminated diplomatic recognition of

Taiwan as the legitimate government of China. In Goldwater v. Carter (1979) the Supreme Court found the case to be unripe because Congress had not yet actually

objected. In his concurring opinion, Justice Lewis Powell stated that courts should

decline on the grounds of ripeness to decide “issues affecting the allocation of

power between the President and Congress until the political branches reach a

constitutional impasse.” A similar situation existed when Congress attempted to

stop President George W. Bush from invading Iraq before he had actually done so.

The Components of the U.S. Legal System: The Big Picture Just as a complicated engine is made of many individual parts, the legal system has

many components that must work together to produce the desired result. Thus far,

this chapter has focused on the courts because this is where constitutional issues are

decided. However, the courts are only one component of the U.S. system of justice,

both at the adult and juvenile levels. The Constitution also directly affects what

happens before a case comes to court (law enforcement actions) and after the court

renders a decision (correctional officer actions).

Law enforcement officers, as the gatekeepers of the criminal justice system,

must be thoroughly versed in the Fourth Amendment’s guarantee of the right to be

free from unreasonable search and seizure. The Constitution applies to the police

officer who wants to search the interior of a car stopped for a traffic violation as

well as to searches conducted within the walls of a prison by a correctional officer.

Furthermore, these same constitutional constraints apply to nonsworn police,

community service officers and animal control personnel, fire and building inspec-

tors, community corrections workers (probation and parole officers), food and drug

inspectors, and postal inspectors. The number of jobs in the governmental system

is huge, and all those working in them are regulated by the Constitution. Finally,

those constraints apply to all who work within the juvenile justice system as well,

to which the discussion will now briefly turn.

The Juvenile Justice System

More than 100 years ago, a separate juvenile justice system was created in the

United States through the passage of the Illinois Juvenile Court Act of 1899. Soon

thereafter, every state had designated a separate court system in which to handle

cases involving youth. Reformers, believing that the punitive focus of the adult

system was not in the “best interest of the child,” sought to establish a court whose

purpose was to rehabilitate youthful offenders rather than to punish them. Ini-

tially youths coming before the juvenile court had no due process rights whatso-

ever. But as the juvenile court evolved, so too did youths’ rights. The result today

is a juvenile justice system that closely parallels the adult (criminal) justice system

and that handled an estimated 1,504,000 delinquency cases in 2009 (Puzzanchera

et al., 2012, p. 6).

A particular distinction in how society seeks to regulate youthful behavior is

seen in the establishment of status offenses, conduct prohibited by law simply

status offenses offenses deemed to be illegal when

committed by juveniles because

of their age, which are not

unlawful for adults, such as

smoking, drinking, and curfew

violations

MYTH Juveniles are becoming more

violent and criminally dangerous.

REALITY Juvenile violent crime peaked

in 1994 and has been declining

steadily since, with the prediction

of a wave of juvenile super-

predators never reaching fruition.

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52 Section I A Foundation for Understanding Constitutional Law

because the person engaging in the behavior is a minor (usually younger than 18).

Examples of such offenses include smoking cigarettes, drinking alcohol, running

away from home, and truancy. In 2009, juvenile courts petitioned and formally

disposed of an estimated 142,300 status offense cases, a 20 percent

increase since 1995 (Puzzanchera et al., 2012, p. 72).

Beginning in 1980, a trend emerged to “get tough” on juvenile

offenders, especially those committing more serious crime, with

many states implementing legislative provisions to allow juve-

niles to be tried in criminal courts, increasing sentencing options

by juvenile courts and reducing juvenile court confidentiality.

Law Enforcement Many police departments have a separate juvenile division

or at least a few juvenile officers. Many other departments have no such specialists,

and all officers are responsible for both juvenile and adult offenders. The terminol-

ogy usually differs, however. Juveniles are taken into custody; adults are arrested. Juveniles are accused of delinquent acts; adults are accused of crimes. Juveniles are directed to appear in court by a petition; adults are directed to appear in court by an information or indictment. Juveniles and adults may be kept in custody before appearing in court to protect the public or to ensure their court appearance. In the

case of juveniles, this is called detention; adults are jailed. Adults usually have a right to bail; juveniles do not in most states.

Courts Juvenile court proceedings are less formal and may be private; adult

proceedings are more formal and public. Juvenile identifying information is usually

not released to the press; adult information is released. Juveniles have no constitu-

tional right to a jury trial, but adults do (some states, however, have extended this

right to juveniles). Both systems require proof beyond a reasonable doubt and the

right to be represented by an attorney, and both allow appeals to a higher court. The

initial appearance before a juvenile judge is called a conference; before a criminal judge it is called a preliminary hearing. In juvenile court, the adjudication hearing par- allels the adult trial. Juvenile court proceedings are quasi-civil and may be confi- dential; criminal court proceedings are open.

During a juvenile hearing, a youth may be adjudicated delinquent; in the adult court, the defendant is declared a criminal. In either court, if a guilty decision is rendered, a hearing to determine the outcome is held. In juvenile court, this is the

dispositional hearing; in adult court, it is the sentencing hearing. In either system, the disposition or sentence cannot be cruel or unusual. Although controversy has

always surrounded the death penalty, the controversy increases about whether it

should be applied to juveniles. In the landmark case of Roper v. Simmons (2005) the execution of minors was held to violate the Eighth Amendment prohibition against

“cruel and unusual punishment,” and the Supreme Court ruled it unconstitutional

to impose capital punishment for crime committed by a defendant who was

younger than age 18 at the time of the offense.

Corrections As noted, juvenile and adult correctional facilities are to be sepa-

rated. Available juvenile sentences typically span the full range of correctional

options, from fines and restitution, to probation and intermediate sanctions, to

incarceration in a juvenile detention facility. Juveniles released from custody receive

aftercare; adults receive parole or probation.

The juvenile justice system has the same three components as the criminal justice system: law enforcement, courts, and correct ions.

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Chapter 2 An Overview of the U.S. Legal System 53

The Changing Face of American Criminal Justice and Constitutional Law

This brief overview of the criminal and juvenile justice systems has been provided

to stress the importance of the Constitution at every juncture within these sys-

tems. Whatever the role of government agents, their power is limited by the con-

straints of the Constitution. This should never be viewed as a hindrance or

something negative. Rather, this provides the government, and those it serves,

with clear guidelines that maintain the purpose the framers of the Constitution

had in mind more than two centuries ago. This system of reserved power benefits

all concerned.

The Constitution is not just about history and theory. It applies to every crimi-

nal justice practitioner. Each is expected to understand constitutional rights and to

apply them in any number of situations, including many that have not previously

arisen. Actually, U.S. constitutional law is being challenged in numerous unprec-

edented ways because technology and travel make crossing international borders

an everyday event for millions around the world. Returning to a concept intro-

duced previously—that U.S. law is living and ever evolving—this chapter con-

cludes with a look at how this blurring of jurisdictional boundaries affects

constitutional law.

U.S. Criminal Justice beyond Our Borders As the entire world continues to become closer for reasons that include electronic

communication, the Internet, and ease of travel, people find themselves increas-

ingly interested in laws different from their own. The study of comparative law

is just that, comparing and contrasting laws to expand understanding of law and

legal theory. It is fascinating to delve into the historical development of legal

systems and compare them with ours, finding some are quite similar and some

vastly different.

Even more relevant to the study of the U.S. Constitution and criminal justice

system is the impact of our Constitution and the laws of other nations when Ameri-

cans are called on to provide services in foreign lands: “In a shrinking world with

a global economy, terrorism, electronic communications, and jet aircraft, much

crime is transnational, giving rise to a host of international criminal law enforce-

ment tasks. American law enforcement is being ‘exported’ in response to increased

international terrorism, drug trafficking, smuggling of illegal immigrants, viola-

tions of U.S. securities laws, and money laundering, as well as the potential theft of

nuclear material” (Cole and Smith, 2010, p. 173).

Because the Constitution serves as the primary roadmap for U.S. law enforce-

ment, primarily involving U.S. citizens, entirely different rules, regulations, poli-

cies, and procedures are considered when foreign governments are involved. It is

not as simple as having U.S. law enforcement officials conduct their official duties

the same elsewhere as they do at home.

Without more powers, any foreign official may be restricted to lawfully gather-

ing data with no more authority than any other citizen or visitor would have. Coop-

erative agencies such as the International Criminal Police Organization (INTERPOL)

serve as clearing houses but cannot summarily grant expanded police powers.

comparative law comparing and contrasting laws

to expand understanding of law

and legal theory

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54 Section I A Foundation for Understanding Constitutional Law

The U.S. National Bureau of Interpol, the Interpol unit in the United States, oper-

ates in Washington, DC, and directly involves multiple federal agencies and cooper-

ates with foreign police entities, as their mission statement explains: “The U.S.

National Central Bureau (USNCB) was authorized by statute (22 U.S.C. 263a) and

operates within the guidelines prescribed by the Department of Justice, in conjunc-

tion with the Department of Homeland Security. The mission of the U.S. National

Central Bureau is to facilitate international law enforcement cooperation as the

United States representative with the International Criminal Police Organization

(INTERPOL), on behalf of the Attorney General.”

The authority by which U.S. law enforcement may act in any official capacity in

a foreign country is the result of compacts, treaties, or other formal arrangements

with those nations. Times of war bring additional rules regulating what is and is

not permissible. Recently, the complexities of incorporating such laws as promul-

gated by the Geneva Convention and Uniform Code of Military Justice have been

scrutinized regarding such issues as the treatment of military prisoners at the Abu

Ghraib prison in Iraq. The increased practice of combining military and private

security during wartime has expanded the complexities of rules that apply during

global conflict.

Because the Constitution is considered the basis of U.S. law and that which is

considered just, those pursuing further studies of comparative, military, and law

enforcement on foreign soil are best served by developing an initial understanding

of the U.S. Constitution.

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Chapter 2 An Overview of the U.S. Legal System 55

In the United States, two prominent theories about

the underlying purpose of law are consensus theory

and conflict theory. Two models often discussed

when articulating the underlying purpose of and

values served by the criminal justice process are the

Crime Control Model and the Due Process Model.

The basic purpose of the U.S. legal system is to

ensure fairness in balancing individual and societal

rights and needs, while preventing excessive govern-

ment power. This balance between individual and

societal rights and needs is represented by the scales

of justice.

Our legal system has its roots in the common law

of England, the early English judge-made law based

on custom and tradition and followed throughout

the country. In U.S. law, common law is synonymous

with case law. Stare decisis is a common law doctrine requiring that precedent set in one case shall be fol-

lowed in all cases having the same or similar circum-

stances, thus ensuring consistency in the law. The

Constitution ensures individual rights by limiting

government power. And although the law, in fair-

ness, must be consistent, it is also flexible. U.S. law is

considered a living law because it can change along

with society.

In addition to common law, the legal system also

relies on statutory (codified) law, which is promul-

gated by legislatures or governing bodies. The U.S.

legal system categorizes offenses into two specific

areas: civil and criminal. Civil laws deal with personal

matters and wrongs against individuals—called torts.

Criminal laws deal with wrongs against society—

called crimes. An act may be both a tort and a crime. A legal citation is a standardized way of referring

to a specific element in the law. It has three basic

parts: a volume number, an abbreviation for the title,

and a page or section number. A legal opinion usu-

ally contains (1) a description of the facts, (2) a state-

ment of the legal issues presented, (3) the relevant

rules of law, (4) the holding, and (5) the policies and

reasons that support the holding. Most case briefs

contain the case name and citation, a summary of key

facts, the legal issues involved, the court’s decision,

the reasons for that decision, and any separate opin-

ions or dissents. Shepardizing a case involves using Shepard’s Citations, a reference that tracks cases so legal researchers can easily determine whether the

original holding has been changed through any

appeals.

When civil or criminal laws are broken, the courts’

two main functions are to settle controversies between

parties and to decide the rules of law that apply in

specific cases. The U.S. judicial system is two-tiered,

consisting of state and federal court systems. Each tier

includes specific levels of courts. The officers of the

court are judges, lawyers, clerks of court, sheriffs, mar-

shals, and bailiffs. Three important doctrines govern

whether a case will be heard by the court: standing,

mootness, and ripeness.

The juvenile justice system has the same three

components as the criminal justice system: law

enforcement, courts, and corrections.

Summary

Discussion Questions 1. Could a country such as the United States function

without a federal constitution? Would it be possible for each state to merely abide by its own constitution?

2. Why should the Constitution not include an overall criminal code specifying crimes and punishments that could apply throughout the United States?

3. Why is society considered the victim of a crime rather than the individual victimized?

4. Why must the legal system provide an appeal procedure?

5. Can you develop an argument against stare decisis? 6. Why should courts not be permitted to argue

“what if” questions?

7. Which underlying theory about the purpose of law do you feel makes most sense—consensus or conflict theory?

8. If the basic purpose of the U.S. legal system is to ensure fairness in balancing individual and societal rights and needs, is that end best served by an adversarial system in which the person with the best lawyer often comes out on top? Does this

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56 Section I A Foundation for Understanding Constitutional Law

system of justice provide equal access to people of different socioeconomic classes?

9. Which operational end of the spectrum do you think our current criminal justice system is

positioned closer to: due process or crime control? Why?

10. What problems could arise for any law enforcement professional not keeping up with the law?

References Cole, George F., and Smith, Christopher E. The American

System of Criminal Justice, 12th ed. Belmont, CA: Thomson Wadsworth Publishing, 2010.

LaFountain, Robert C., Schauffler, Richard Y., Strickland, Shauna M., and Holt, Kathryn A. Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads. Williamsburg, VA: National Center for State Courts, December 2012.

Marx, Karl, and Engels, Frederick. Manifesto of the Communist Party. London, 1848.

Packer, Herbert L. The Limits of Criminal Sanction. Stanford, CA: Stanford University Press, 1968.

Puzzanchera, Charles, Adams, Benjamin, and Hockenberry, Sarah. Juvenile Court Statistics 2009. Pittsburgh, PA: National Center for Juvenile Justice, May 2012.

Walker, Samuel, Spohn, Cassia, and DeLone, Miriam. The Color of Justice: Race, Ethnicity, and Crime in America, 5th ed. Belmont, CA: Wadsworth Publishing Company, 2012.

Cases Cited Goldwater v. Carter, 444 U.S. 996 (1979) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) Minnesota v. Carter, 525 U.S. 83 (1998) Miranda v. Arizona, 384 U.S. 436 (1966) Moore v. City of Albany, 98 N.Y. 396 (1885)

National Park Hospitality Association v. Department of the Interior, 538 U.S. 803 (2003)

Rakas v. Illinois, 439 U.S. 128 (1978) Roe v. Wade, 410 U.S. 113 (1973) Roper v. Simmons, 543 U.S. 551 (2005)

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CHAPTER 3 The U.S. Supreme Court: The Final Word

The principle is that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules .

—Justice Robert H. Jackson

Youngstown Sheet & Tube Co. v. Sawyer (1952)

T IM

S LO

A N

/A FP

/G e

tt y

Im a

g e

Current Supreme Court justices pose for their official group portrait. Front row (L-R): Associate

Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts,

Associate Justice Anthony M. Kennedy, and Associate Justice Ruth Bader Ginsburg. Back Row

(L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice

Samuel Alito Jr., and Associate Justice Elena Kagan.

iStockphoto/Thinkstock

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58 Section I A Foundation for Understanding Constitutional Law

certiorari

conservative

judicial review

liberal

opinion

recesses

sittings

strict construction

Can You Define?

Do You Know . . . ■ Under what authority the Supreme Court operates?

■ What the jurisdiction of the Supreme Court is?

■ How the Supreme Court has effectively created most of its own

power and authority?

■ Whether the Supreme Court can review acts of Congress? the

precedent case?

■ Whether the Supreme Court can review cases that are pending in

state courts or that have been decided in state courts? the

precedent case?

■ Why appointments of Justices to the Supreme Court are lifetime?

■ Whether the current Supreme Court is liberal or conservative?

Introduction The U.S. Supreme Court is uniquely American, and like U.S. law itself, its roots

extend to the history of why the framers of the Constitution—representing those

who came to this country in search of freedom, due process, and the possibilities of

a better life—created the United States. Visitors to our nation’s capitol may be over-

whelmed with symbols of the hope, dreams, and challenges of creating a new

government two centuries ago. Two statues outside the National Archives in Wash-

ington proclaim Study the Past and What Is Past Is Prologue. This chapter has been included not because many of us will ever find ourselves

appearing before the Supreme Court but because what occurs there affects each of

us daily. Unfortunately, many Americans take this for granted. Criminal justice

professionals cannot. The history of the Supreme Court, including those who make

it up, combines with its role as defined by the Constitution to create this uniquely

effective overseer of the legal system. Therefore, it is imperative that those studying

law, and particularly constitutional law, have a working knowledge and under-

standing of the role the Supreme Court and the Justices appointed to it play in the

continuing saga of the country’s living law.

In the final analysis, the Supreme Court is about people. It is about nominees

and those appointed to it. It is about individuals named in the cases that gain

infamy by having been involved in something that turned out to have broad-

reaching effects and those whose seldom-heard stories changed the course of his-

tory. And it is about each person affected by the cases the Court hears and those

they elect not to hear. Every U.S. citizen is affected by all the Supreme Court does.

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Chapter 3 The U.S. Supreme Court: The Final Word 59

In addition to influencing every U.S. citizen, the Supreme Court has had a pro-

found influence on criminal justice and on law enforcement in particular. Spector

(2003, p. 16) notes, “Over the past 50 years, the U.S. Supreme Court has molded law

enforcement from a seat-of-the-pants job to a highly standardized profession.” He

adds that in the past half-century a “flood of Supreme Court cases [has created] the

foundation for virtually every action officers take today” (p. 21).

This chapter begins with a discussion of how the U.S. Supreme Court gets its

authority and its jurisdiction and the powerful influence it has through judicial

review and the ability to grant certiorari. Next the makeup of the Supreme Court is

discussed, including a general discussion of Supreme Court Justices and a more

specific look at the composition of the present-day court. This is followed by a dis-

cussion of the political nature of the Supreme Court and public attitudes toward the

Supreme Court. The chapter concludes with a description of some of the Court’s

traditions and procedures, where its decisions may be found, and a final look at the

power wielded by the highest court in this country.

Authority for the Supreme Court The law that emanates from the Supreme Court is the law of the land, and no other

judicial or political body can overrule decisions it makes. Because U.S. law is a

living law, conceivably the Supreme Court could overrule itself, which it has, in

fact, done.

The constitutional establishment of authority is found in Article 3, which pro-

vides a framework for the federal judiciary. The Federal Judiciary Act of 1789 estab-

lished the first Supreme Court, and although the number of justices has varied, nine

has remained the agreed-on number since 1869.

The Constitution itself is a rather brief document, intended to set forth the

framework of the new government rather than to provide the lengthy specifics that

others would find themselves having the responsibility of developing. It should

not surprise—or trouble—us that this article is brief and to the point as well. Article

3 states,

The judicial Power of the United States shall be vested in one supreme Court,

and in such inferior Courts as the Congress may from time to time ordain and

establish.

Section 2 of Article 3 of the Constitution defines the jurisdiction (or boundaries)

of the Supreme Court.

Jurisdiction of the Supreme Court Section 2. The judicial Power shall extend to all Cases, in Law and Equity, aris-

ing under this Constitution, the Laws of the United States, and Treaties made,

or which shall be made, under their Authority;—to all Cases affecting Ambas-

sadors, other public Ministers and Consuls;—to all Cases of admiralty and

maritime Jurisdiction;—to Controversies to which the United States shall be a

Party;—to Controversies between two or more States;—between a State and

Citizens of another State;—between Citizens of different States;—between

Citizens of the same State claiming Lands under Grants of different States,

The U.S. Constitution ordains in Article 3 that there shall be a Supreme Court.

MYTH The Constitution dictates that the

Supreme Court consist of nine

justices.

REALITY The Constitution does not enumer-

ate the size of the Court, only that

there shall be a Supreme Court

and that the number of justices

shall be determined by Congress.

The first Judiciary Act, passed in

1789, set the number of Justices

at six, one Chief Justice and

five Associates. Over the years

Congress has passed various acts

to change this number, fluctuating

from a low of five to a high of ten.

The Judiciary Act of 1869 fixed

the number of justices at nine,

and no subsequent change to the

number of justices has occurred.

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60 Section I A Foundation for Understanding Constitutional Law

and between a State, or the Citizens thereof, and foreign States, Citizens or

Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and

those in which a State shall be Party, the supreme Court shall have original Juris-

diction. In all the other Cases before mentioned, the supreme Court shall have

appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under

such Regulations as the Congress shall make.

The Supreme Court has jurisdiction over two general types of cases: cases that

reach it on appeal and cases over which it has original jurisdiction, meaning the

case can actually start at the Supreme Court. Whether a case begins in the state or

federal system, the path to appeal a case to the Supreme Court is the same, as

shown in Figure 3.1.

Because the framers of the Constitution did not want any individual or body to

have excessive authority, the Supreme Court has only specific authority itself. It

may hear appeals from lower state and federal courts on issues that involve inter-

pretation of either federal law or the applicability of the Constitution to the subject

at hand. The Supreme Court can also hear appeals on cases dealing with treaties the

United States has entered into, admiralty and maritime cases, or those involving

certain public officials and political entities.

It should not be assumed, however, that the Supreme Court and inferior

(lower) federal courts have carte blanche to do whatever they want. In the post–

Civil War case Ex parte McCardle (1868), Congress reserved the right to limit the jurisdiction of federal courts, including the Supreme Court. This does not mean

that Congress, or any legislature, can override the Constitution by promulgating

unconstitutional law. It does mean that Congress retains the authority to deter-

mine the types of cases these courts can hear, thus affecting their jurisdictional

authority.

United States v. Klein (1871) supported the McCardle decision when the Supreme Court held that Congress, indeed, retains the power under Article 3 to determine

which federal courts may hear certain types of cases. These two cases dealt with

what types of appeals could be presented to federal courts. This is an excellent

example of the natural tension the Constitution creates to prevent any one branch of government from exercising excessive power. These cases show how power with

limitations is granted to Congress and the Court to ensure the balance sought by a

free society through the Constitution.

The Constitution permits the Supreme Court original jurisdiction in cases

dealing with foreign dignitaries or cases involving legal disputes between states,

with the rationale that a state court could not remain unbiased if its

state was a party to the suit. All other cases the Court considers only

on appeal.

As noted by Goebel, “The brevity of the constitutional description

left to Congress and the Court itself the task of filling in much of the

substance and all of the details of the new judicial system. One early

observer commented, ‘The convention has only crayoned in the

outlines. It is left to Congress to fill up and colour the canvas’ ” (1971,

p. 280). One of the most important ways in which the Court did so

was to establish judicial review of laws passed or of cases settled by

lower courts.

The Supreme Court has original jurisdict ion in cases dealing with foreign dignitaries and legal disputes bet ween states . All ot her cases are considered only on app eal.

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Chapter 3 The U.S. Supreme Court: The Final Word 61

Full judicial decision by the U.S. Supreme Court (majority and dissenting opinions) The Court affirms or reverses lower court decisions. (Note: The decision is not always a final judicial action; the case may be retried in the lower court.) There is no appeal process beyond the U.S. Supreme Court.

Decision-making conferences by the justices Four votes govern the acceptance or rejection of a case: (1) a decision and full opinion; (2) if the case is accepted, there may be a summary decision of a dismissal or affirmation of a lower court decision (per curiam); (3) if the case is rejected, no explanation (reconsideration is possible); and (4) a rehearing after an unfavorable decision is possible.

Prescreening (discussion of the case list) The chief justice places cases on a list, including informal pauper's petitions.

Discretionary decisions (special circumstances) A writ of certiorari or a writ of habeas corpus.

Decision making

State supreme court (State court of last resort) State supreme court cases that do not involve an issue of federal law are ineligible for hearing by the Court.

Federal courts (U.S. appellate courts) The U.S. Court of Appeals; the U.S. Court of Claims and the U.S. Customs Court.

Federal or state trial court cases (processing of case through federal or state court systems)

Mandatory decisions Hears direct statutory appeals in which the state is in conflict with the federal law or Constitution, and original jurisdiction disputes between states.

Figure 3.1 The Path of a Case to the U.S. Supreme Court

permission. www.cengage.com/permissions

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62 Section I A Foundation for Understanding Constitutional Law

Judicial Review The Supreme Court has tremendous power through the process of judicial

review—the power of the Court to analyze decisions of other government entities

and lower courts: “Judicial review is the doctrine according to which courts are

entitled to pass upon the constitutionality of an action taken by a

coordinate branch of government” (Ducat, 2010, p. 3). That coordi-

nate branch of g overnment is the legislature. And as Chief Justice

Charles Evans Hughes put it during a speech in 1907 before the

Chamber of Commerce in Elmira, New York, “We are under a Con-

stitution, but the Constitution is what the judges say it is.” The

Supreme Court can decide which laws and lower court decisions

are constitutional.

Initially, the Supreme Court did not review state decisions. It is not surprising

that lively debate has occurred over just exactly how far the Supreme Court may go

in performing its job or what that job actually is. As with other parts of the Constitu-

tion, the brevity leaves room for much interpretation, debate, and disagreement.

In 1803, the stage was set when the Supreme Court forcefully asserted its right

to judicial review in Marbury v. Madison, taking advantage of the opportunity to define its own role. William Marbury had been appointed justice of the peace for

the District of Columbia in 1801 by President John Adams, just before Adams left

office. When Thomas Jefferson became president, his new Secretary of State, James

Madison, would not acknowledge Marbury’s position. Marbury took the case to the

Supreme Court, demanding that the new secretary of state recognize his appoint-

ment. (See Appendix C for a brief of the case.)

Although admittedly a complex case, Chief Justice John Marshall recognized

the opportunity to definitively state that, indeed, the Supreme Court had the power

to declare an act of Congress (in this case, the Judiciary Act passed by Congress in

1789) unconstitutional. Chief Justice Marshall went so far as to say that it was the

Supreme Court’s responsibility to overturn unconstitutional legislation because of

its duty to uphold the Constitution. Chief Justice Marshall forcefully established

the Supreme Court’s authority as the final interpreter of the Constitution, and his

words still ring: “If the courts are to regard the Constitution as superior to any

ordinary act of the legislature, the Constitution and not such ordinary act must

govern the case to which they apply. . . . It is emphatically the province of the judi-

cial department to say what the law is.”

In stating that the Constitution is the supreme law of the land and that the justices

are required to follow it rather than inconsistent provisions of legislation, the Supreme

Court denied Marbury his commission. Some scholars describe Marbury v. Madison as the cornerstone of American constitutional law because for the first time the Supreme

Court nullified a provision of federal law. Chief Justice Marshall established that

judges are authorized to nullify any law that in their view violates the Constitution. This case called attention to the conflict between judicial review and political

democracy by asking, “Who makes the law—those elected by the people or those

sitting on the Supreme Court bench?” The Court’s decision was seen as completely

opposed to political democracy.

In short, the legal groundwork (precedent) was established authorizing the

Supreme Court to maintain a position of the ultimate de facto lawmaker by deciding

what legislation is and is not constitutional. Arguably, although Congress could

judicial review the power of a court to analyze decisions of

other government entities and

lower courts

The Supreme Court has eff ect ively created most of its own power and authority through the process of judicial review.

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Chapter 3 The U.S. Supreme Court: The Final Word 63

regroup and promulgate additional legislation, the Supreme Court

could declare it unconstitutional as well. The Supreme Court does,

in fact, have awesome power.

The Supreme Court extended its review authority beyond fed-

eral law to state laws through Fletcher v. Peck (1810) and again in Martin v. Hunter’s Lessee (1816), a case that established the power Congress had given the Supreme Court to hear cases involving

federal law and constitutional issues. In Martin, the Supreme Court determined that it could reverse state court decisions that involved federal

legal issues. This case involved a dispute over land ownership. When the Supreme

Court heard the case and made a determination, the Virginia state courts refused to

follow the Court’s decision, arguing that the Supreme Court had no authority to

overrule the state court’s decision. Again, although the case is complex, the final

determination was that the Supreme Court did have the authority to review cases

dealing with federal law, even though the case is pending in a state court.

To clarify, Supreme Court Justice Oliver Wendell Holmes

asserted that whereas Marbury v. Madison gave the Supreme Court the power to declare acts of Congress unconstitutional, it was

even more important that, in the case of Martin v. Hunter’s Lessee, the Supreme Court had the authority and power to review and

reverse state court decisions to ensure consistent interpretations of

federal law.

Controversy over and Alternatives to Judicial Review

Opponents of judicial review contend judges have too much power: “The main alter- native to judicial review is legislative supremacy, and the question is whether the

courts have the power to overrule the decisions of elected legislators. Thus, today,

opponents of judicial review call for the courts to give up the power to declare state

or federal statutes unconstitutional” (Farber, 2003, p. 417).

Proponents of judicial review, on the other hand, argue there must be some watchdog to maintain the constitutionality of law, even if passed by elected bodies

of government: “Essentially, judicial review is an attempt to solve a practical prob-

lem: how to keep politicians from violating individual rights or undermining the

overall system of government for short-term gains” (Farber, 2003, p. 443).

Admittedly, judicial oversight is not the only option available. The most basic

alternative is for judges to simply refuse to overrule a law, albeit unlikely. Alterna-

tive means of resolution could keep cases from finding their way to the courtroom.

One often suggested alternative is mediation. Other alternatives include subgroups

within legislatures to provide self-oversight, leaving an obvious potential conflict

of interest. Another alternative is to have legislative bodies assess the actions of

others. Some have even proposed an individual, such as the president, be the final

arbiter. However, “If Congress is not to be trusted to be the sole judge of its own

authority, and if the state governments are eliminated, that leaves only the Presi-

dent as an alternative to judicial review,” and even presidential decisions may

necessitate judicial oversight (Farber, 2003, p. 441).

The debate is not that there needs to be some form of final say as to what law is

constitutional. The debate is over who should have that final say. And so, the issues set forth in Marbury v. Madison more than two hundred years ago persist.

Marbury v. Madison (1803) es tablished that the Supreme Court has the authority to nullify and void an act of Congress that violates the Constitution.

Martin v. Hunter’s Less ee (1816) held that the Supreme Court can review and reverse state court dec isions and can review pending state cases .

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64 Section I A Foundation for Understanding Constitutional Law

Certiorari: Deciding Which Cases to Hear The Supreme Court’s decision to review a case is almost entirely discretionary.

Rarely are cases heard by the Court simply because there is a right to have them

heard. The Supreme Court may review a case if a federal appeals court requests that

the Supreme Court to “certify” or clarify a legal point. It is also obligated to hear

certain cases meeting the requirements for an “appeal of right,” although these

types of cases occur infrequently.

The vast majority of cases heard by the Supreme Court occur through the writ

of certiorari (certiorari is Latin, meaning “to be informed”), whereby the Court determines which cases are worthy of review on the basis of their national

importance.

One of the primary reasons the Supreme Court will choose to hear a case is

because it involves conflict among the circuits. The Court wants the law to be con-

sistent across the nation, so when two circuits are in conflict, the Court will be more

likely to grant certiorari. Another determining factor is whether the legal issue falls

into the “cases and controversies” category, meaning the Court will hear only legiti-

mate cases and will not give advisory opinions, unlike some state supreme courts.

The Court will also not hear cases involving “political” questions, such as those

involving issues that are “textually” committed to another branch of government

or those in which there is a lack of “judicially discoverable and manageable stan-

dards for resolving the question.” Finally, the case must involve federal law, the

U.S. Constitution, or somehow otherwise fall within the jurisdiction of the federal

courts. In determining which cases to hear, the justices are looking for cases involv-

ing matters that directly influence the law and the nation, another example of how

powerful this institution is. The justices alone determine on which cases a final

decision will be made.

Staff attorneys begin the process of deciding which cases will be heard. A “dis-

cuss list” is generated and considered during private meetings of the justices. Any

case that does not have at least one justice expressing an interest in it is summarily

denied. This accounts for the disposition of more than 70 percent of cases submit-

ted. Known as the “Rule of Four,” at least four of the nine justices must vote in favor

of granting certiorari for a case to be accepted for review. Even then, more than 90

percent of all cases submitted for certiorari are denied.

According to the Supreme Court’s official government website, the justices’

caseload has increased rapidly in recent years, and the current docket exceeds

10,000 cases per term: “Plenary review, with oral arguments by attorneys, is granted

in about 100 cases per Term. Formal written opinions are delivered in 80 to 90 cases.

Approximately 50 to 60 additional cases are disposed of without granting plenary

review. The publication of a Term’s written opinions, including concurring

opinions, dissenting opinions, and orders, approaches 5,000 pages. Some opinions

are revised a dozen or more times before they are announced” (“The Justices’

Caseload,” 2013).

During fiscal year 2010 (October 1, 2009 to September 30, 2010), 5,910 new

writs of certiorari were filed, adding to the 3,332 cases that were still pending

from the previous term. During this session, 165 writs of certiorari were granted;

5,297 were denied; and 140 were dismissed, leaving 3,640 pending at the end of

that term. Of the 5,910 cases filed, 2,449 were criminal cases; 783 were U.S. civil

certiorari Latin for “to be informed”

MYTH We have the right to be heard in

the Supreme Court.

REALITY This statement is not supported

by the Constitution, nor by

congressional law, nor by the

rules of the Supreme Court

itself. According to Rule 17 of

the Supreme Court (effective

June 30, 1980), “[a] review on

writ of certiorari is not a matter of

right, but of judicial discretion.”

MYTH Every case that gets escalated to

the Supreme Court gets heard or

at least commented on.

REALITY The vast majority of cases

submitted to the Court for review

are denied.

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Chapter 3 The U.S. Supreme Court: The Final Word 65

cases; 2,513 were private civil cases; and 165 were administrative appeals. Of the

165 cases granted “cert,” 45 were criminal, 15 were U.S. civil, 86 were private civil,

and 19 were administrative appeals (Sourcebook of Criminal Justice Statistics Online, Table 5.70.2010, n.d.).

The power that goes with granting certiorari is significant but so is not “grant-

ing cert,” as it is also referred to.

Newspapers and online sources of law enforcement often erroneously report

that when the Supreme Court denies “cert,” it is upholding the state’s ruling. For

example, when the Supreme Court denied “cert” to hear an appeal from a decision

of the Virginia Supreme Court (Virginia v. Harris, 2009), several headlines read, “Supreme Court Upholds Ban on Traffic Stops Based on a Caller’s Tip.” As Rut-

ledge explains, “Under the rules as to what does and what does not constitute a

holding of the Supreme Court, the fact that the state court ruling was not acted

upon does not mean that the Supreme Court ‘upholds’ the state’s ruling. It means

that the Supreme Court is not expressing either approval or disapproval, and nothing is to be inferred from the denial of review” (2010, p. 64). The Court has time to

examine only about 1 percent of the approximately 8,000 cases it is asked to review

each year and has repeatedly emphasized that it takes no official position on the

remaining 99 percent of cases to which certiorari is denied, including the Virginia v. Harris case: “As the Court has repeatedly said, the fact of non-review ‘imports no expression of opinion upon the merits of the case,’ and no one should assign ‘any

precedential value’ to the fact that a particular ruling of a lower court was not

reviewed (Teague v. Lane [1989])” (Rutledge, 2010, p. 64).

The Supreme Court Justices The Supreme Court has one Chief Justice and eight Associate Justices, nominated

by the President of the United States and confirmed by the Senate. Clearly, the fram-

ers of the Constitution did not intend for undue influence to be applied to justices

serving on the Supreme Court or on any inferior court, as stated in Section 1:

The Judges, both of the supreme and inferior Courts, shall hold their Offices

during good Behavior, and shall, at stated Times, receive for their Services,

a Compensation, which shall not be diminished during their Continuance

in Office.

No one trying to influence the justices’ decisions can ever hold

either their jobs or their paychecks over their heads.

Article 2 of the Constitution directs that the president of the

United States shall nominate a judge for appointment to the

Supreme Court, which the Senate must confirm. Article 2 also

directs that federal judges, along with all other government officials, could be

removed from their offices “on impeachment for and conviction of, treason, bribery,

or other high crimes and misdemeanors.”

Impeachment is a complex process whereby the House of Representatives

brings forth articles of impeachment and the Senate holds the trial. The process,

which cannot be based on anything other than actual misconduct, has resulted in

only one Supreme Court Justice being impeached (Samuel Chase in 1804), but

because of the political motivations behind it, he was never actually convicted by

A Supreme Court app ointment is a lifet ime app ointment so a justice may not be unduly infl uenced.

MYTH When the Supreme Court denies

certiorari, it is effectively uphold-

ing the ruling of the court below

it, thus setting precedent.

REALITY When certiorari is denied, the

Court is expressing neither

approval nor disapproval of the

lower court’s ruling—it is simply

refusing to consider the case. This

has the effect of letting the lower

court’s ruling stand, but it does

not mean the Court agrees with

the holding.

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66 Section I A Foundation for Understanding Constitutional Law

the Senate. Unless they engage in criminal conduct or obviously unethical actions,

federal judges need not worry that their decision might cost them their jobs.

Nominating Supreme Court Justices is a particularly powerful responsibility.

Although the president will have no authority over a justice once the justice is

appointed, considerable research is conducted before the president recommends an

individual. By scrutinizing a judicial candidate’s record, a president is likely to

predict how someone might lean when deciding certain politically important

issues. A conservative president will seek a conservative judge; a liberal president

will seek a liberal judge. The power of a president to potentially mold the makeup

of the Supreme Court is a most envied political privilege.

Since the origin of the Supreme Court in 1790, more than 100 justices have

served, some liberal, some conservative. Smith (2003, p. 164) provides definitions

of liberal and conservative modeled on the classifications in the Supreme Court

Judicial Database. Liberal decisions are pro–person accused or convicted of a

crime, pro–civil liberties or civil rights claimants, pro-indigents, pro–American

Indians and antigovernment. Conservative decisions favor the government’s

interest in prosecuting and punishing offenders over recognition or expansion of

rights for individuals.

The 1960s saw a liberal Supreme Court under Chief Justice Earl Warren, with a

focus on the rights of the accused. The expansion of criminal procedural rights was

slowed in the 1970s and 1980s by President Richard M. Nixon’s appointments of

conservatives Warren Burger and William H. Rehnquist. However, another Nixon

appointee, Harry Blackmun, tended to the liberal side. President Gerald R. Ford’s

single appointee, John Paul Stevens, tended to be moderate to liberal in his views,

rather middle of the road, not greatly influencing the direction of the Court.

President Ronald Reagan’s three appointments shifted the Court toward a more

conservative stance. Sandra Day O’Connor, the first woman to serve on the Court,

was seen as moderate to conservative, usually voting to limit prisoners’ rights.

Antonin Scalia and Anthony Kennedy were both considered very conservative.

Also tipping the balance to the conservative side was the appointment of Rehnquist

as Chief Justice.

When conservative David Souter was appointed by President George H. W.

Bush to replace liberal William Brennan in 1990, the trend continued, with the Court

increasingly favoring the state and law enforcement’s position over that of criminal

defendants. The conservative nature of the Court was further bolstered when the

first President Bush appointed Clarence Thomas (yet another conservative) to

replace liberal Thurgood Marshall. President Bill Clinton’s 1993 appointment of

Ruth Bader Ginsburg did little to change the existing “law and order” Court.

President George W. Bush in his second term appointed John Roberts, Jr., to the

Court and appointed him to replace William Rehnquist as Chief Justice after

Rehnquist’s death. Interestingly, Roberts was nominated by President George H. W.

Bush in 1992, but no vote occurred before President Clinton took office. President

George W. Bush succeeded with the appointment in 2005 and appointed Samuel

Alito to replace retiring O’Connor. The conservative Rehnquist Court gained a

reputation for consistently supporting expanded discretionary authority for state

legislatures, prosecutors, police officers, and corrections officials, in sharp contrast

to the rights-expanding performance of the Warren Court era (Smith, 2003).

liberal decisions that are pro–person accused or

convicted of a crime, pro–civil

liberties or civil rights claimants,

pro-indigents, pro–American

Indians and antigovernment

conservative decisions that favor the government’s interest in

prosecuting and punishing

offenders over recognition or

expansion of rights for individuals

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Chapter 3 The U.S. Supreme Court: The Final Word 67

The Current Supreme Court The views of the current Supreme Court are often guided and constrained by rul-

ings of previous courts. The Warren Court (1953–1969) was liberal by majority, with

rulings that generally expanded civil liberties, focused on due process, and tended

to reflect empathy toward suspects and defendants who were mistreated by an

abusive government. The Burger Court (1969–1986) was also considered liberal,

despite the conservative leanings of its Chief Justice. Since 1986, however, the

Court’s rulings have shifted to reflect a more conservative stance. For example, the

majority of the Rehnquist Court (1986–2005) Justices were selected by Republican

presidents who emphasized “law and order” crime control policies, and most of the

justices appointed to the Rehnquist Court, three of whom remain on the bench

(Scalia, Thomas, and Souter), brought a perspective of criminal justice from their

experiences as lawyers on the staffs of county prosecutors, state attorney generals,

or the U.S. Justice Department (Smith, 2003). The Rehnquist Court will perhaps be

primarily remembered for its revival of federalism. This continued with Chief Jus-

tice Roberts having been a deputy solicitor general arguing cases for the govern-

ment and Justice Alito having been a federal attorney. Table 3.1 describes the

makeup of the current Supreme Court.

On Saturday, August 7, 2010, Elena Kagan was sworn in as the 112th justice to

serve on the Supreme Court, swearing to “administer justice without respect to

persons, and do equal right to the poor and to the rich.” Baker (2010) suggests,

Succeeding Justice John Paul Stevens, the Court’s retiring liberal leader, Kagan,

50, presumably will not drastically change the philosophical balance on the

divided Court. . . . Arguably, Kagan made a mark from the moment she took the

oaths Saturday. She is the third woman on the Court, joining Justices Ruth

Bader Ginsburg and Sonia Sotomayor. She is also the fifth Justice born after

World War II, making that group a majority, and she brings down the average

Table 3.1 The Current U.S. Supreme Court

President

appointing

Political

party

Year

nominated

Age at

nomination Born

Years of

judicial

experience Views Home state

Antonin Scalia Reagan Republican 1986 50 1936 4 Very conservative Illinois

Anthony Kennedy Reagan Republican 1988 51 1936 12 Very conservative California

Clarence Thomas George H. W. Bush Republican 1991 43 1948 1 Conservative Georgia

Ruth Bader Ginsburg Clinton Democrat 1993 60 1933 13 Moderate New York

Stephen G. Breyer Clinton Democrat 1994 56 1938 14 More liberal Massachusetts

John G. Roberts, Jr.* George W. Bush Republican 2005 50 1955 2 Conservative New York

Samuel Alito George W. Bush Republican 2006 56 1950 16 Conservative New Jersey

Sonia Sotomayor Barack Obama Democrat 2009 55 1954 17 Liberal New York

Elena Kagan Barack Obama Democrat 2010 50 1960 0

Uncertain but

tends toward

liberal New York

*Chief Justice

Source: Adapted from the Supreme Court Historical Society.

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68 Section I A Foundation for Understanding Constitutional Law

age on the Court to 64 from nearly 69. And she is the first person since William

H. Rehnquist, 38 years ago, to join the Court without experience as a judge.

Politics and the Supreme Court It is interesting to listen to laypeople discuss the Supreme Court and try to argue

that it is too political or should not be politicized. Comments such as these show a

misunderstanding of the Supreme Court. Make no mistake, the Court is a political body. The political nature of the Supreme Court is exactly why the Constitution

gives the power of appointing justices to the president. The unique twist is that

once appointed, justices are beholden to no one and truly are their own people.

Although politics may have helped them get the job, that is where party lines end,

as illustrated in the preceding discussion.

A president seeks nominees who have political views similar to his or hers and

those of his or her party. This is common sense. The president is not likely to

appoint justices who have vastly different views. Although ability is a factor in

selecting justices, the appointment process, as well as the confirmation process,

revolves around the appointee’s political views.

The confirmation process is difficult for any potential justice because during this

process all questions are allowed, and politics become readily apparent. People

may argue this is not fair; however, the U.S. legal process is not only fair but logical.

The president is elected to perform a job that includes appointing Supreme Court

Justices who will support the ideals of the president’s party. The argument that

holds more weight is this: Once appointed, how are the justices held accountable?

This argument becomes more of a “greater good” argument: Is it better for the

greater good to have justices who cannot be influenced by anyone rather than put-

ting them in a position to have to consider being reelected?

This system is not without fault. But given the number of justices on the bench

and the process used, the system has proved itself to work extremely well, unless

you happen to disagree with the justices’ politics. The Supreme Court creates policy

through the decisions it makes. Issues are carefully considered by the entire Court,

and changes to American law are never taken lightly. It is never one justice’s deci-

sion alone, and although many decisions come down to a 5–4 vote, it can be said

that some of the great legal minds in the country have given their best consider-

ation to the decision.

During its first six years, the Roberts Court appears to have moved to the right,

becoming the most conservative court since 1937, based on four sets of political

science data. Scholars who study political science data and trends say that nearly

every judicial decision can be assigned an ideological value: “Those favoring, say

prosecutors and employers, are said to be conservative, while those favoring

criminal defendants and people claiming discrimination are said to be liberal”

( Liptak, 2010, p. A6).

Justices are commonly informally categorized as being a judicial conservative,

moderate, or liberal. It is popularly accepted that Chief Justice Roberts and Justices

Scalia, Thomas, and Alito compose the Court’s conservative wing. In fact, these 4

justices are considered to be among the most conservative of the 45 justices to have sat on the Court since 1937 (Liptak, 2010). Justices Sotomayor, Ginsburg, and

MYTH Like Congress and the president,

the Supreme Court is politically

accountable to the citizens.

REALITY The Supreme Court is not directly

politically accountable to the

electorate. They cannot be “voted

off” the bench because of their

political views. One of the primary

ways of ensuring that the justices

remain insulated from outside

political pressure was to grant

them lifetime tenure.

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Chapter 3 The U.S. Supreme Court: The Final Word 69

Breyer are generally held to constitute the Court’s liberal wing. Although still rela-

tively new to the Court, early speculation is that Justice Kagan’s ideological slant

is, at the least, moderately liberal, based on her prior experience in the Clinton

administration and her appointment as Solicitor General under the Obama admin-

istration. Time will tell how her influence will affect the balance of the Court. Jus-

tice Kennedy, generally thought of as a moderate conservative, is considered most

likely to be the swing vote that determines the outcome of certain close cases

(Robinson, 2010).

Since Roberts is only in his 50s, he is likely to head the Court for a “very long

tenure.” If the Court continues on the course the past five years suggest, it is likely

to elaborate further on the scope of the Second Amendment right to bear arms and

to curtail affirmative action and protections for people accused of crimes.

And despite the conservative label, their views of constitutional law are quite

different and predictable. Two of the newest members of the bench, Chief Justice

Roberts and Justice Alito, tend to be cautious in their votes, reluctant to reject the

Court’s own precedents and ruling in a way to preserve them. Justices Scalia and

Thomas, on the other hand, tend to issue sweeping opinions calling for fundamen-

tal changes in constitutional law. In most of the key cases their reasoning and view

of the law has differed, but they have agreed on the outcome in several cases

regarding these key constitutional principles—the right to abortion, affirmative

action programs, presidential power in connection with the war on terror, and

campaign-finance legislation.

When a new justice is placed on the Supreme Court, speculation abounds as to

whether there will be a shift from one side of the political spectrum and whether

the junior justice will maintain his or her existing ideological and political leanings.

The past decade has seen four new justices, including one who has now become

Chief Justice. “History has shown that Supreme Court Justices tend to evolve in

their thinking once elevated to the Court” (Dwyer, 2009). Dwyer notes that when

Sotomayor joined the bench, it considered some “interestingly diverse criminal

procedure decisions” and discusses how Sotomayor may rule on constitutional

issues involving police officers:

That answer is open-ended but if past history is any indication she will be a

tough law and order judge who will not let the government run rampant over

individual rights. If life experience is any influence then one must remember she

grew up in the Bronx during a time when the Bronx was a lot tougher place to

live than it is now, and then after law school she went on to be a prosecutor with

the Manhattan District Attorneys’ Office.

A study for the Majority Staff of the Senate Judiciary Committee on her

criminal justice record indicated that as a Second Circuit Court of Appeals judge

she affirmed convictions 92 percent of the time and upheld police searches 90

percent of the time. The Majority Staff found that her appellate decisions

“demonstrate(s) a consistent record of following the rule of law in upholding

convictions and sentences in criminal cases.” (Dwyer, 2009)

Throughout the remainder of the text, cases decided by the current Supreme

Court will include which judges concurred with the majority opinion and which

dissented.

The current Supreme Court is considered by many to be conservative—a “law and order” court.

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70 Section I A Foundation for Understanding Constitutional Law

Public Attitudes toward the Supreme Court For the past 30 years the public has had a favorable opinion of the Supreme Court,

as shown in Table 3.2.

Table 3.2 Public Opinion of the Supreme Court

“Very

favorable

opinion”

“Mostly

favorable

opinion”

“Mostly

unfavorable

opinion”

“Very

unfavorable

opinion” “Can’t rate”

1987 13% 63% 15% 2% 7%

1997 13% 64% 12% 6% 5%

2007 18% 54% 14% 3% 9%

2010 9% 49% 17% 8% 16%

Source: Adapted from Sourcebook of Criminal Justice Statistics Online.

In addition to having an overall favorable opinion of the Supreme Court, the

public has also expressed considerable confidence in the Court over the past

decades, as shown in Table 3.3.

Table 3.3 Public Confidence in the Supreme Court

“Great deal” of

confidence

“Only some”

confidence

“Hardly any” confidence

(or “Very little”*) “None”†

1984 33% 51% 12% —

1991 38% 48% 13% —

1998 31% 50% 14% —

2005 41% 38% 18% 1%

2012 37% 38% 20% 2%

*In 2004, the wording was changed from “Hardly any” confidence to “Very little.”

†In 2004, a fourth response option was added: “None.”

Source: Adapted from Sourcebook of Criminal Justice Statistics Online.

Traditions and Procedures Although there is certainly definitive authority regarding what the Supreme Court

can hear, how the Court conducts its business is based largely on tradition, with

respect for the process that has endured, along with the Constitution and the find-

ings of the Supreme Court itself.

By federal statute, a term of the Supreme Court always begins on the first Mon-

day in October, continuing until June or July. Terms are made up of sittings, when

cases are heard, and recesses, during which the Court considers administrative

matters at hand and the justices write their opinions. Usually each side has

30 minutes to present its arguments, with 22 to 24 cases presented at one sitting. The

10:00 a.m. entrance of the justices into the courtroom is announced by the marshal

and is steeped in history and tradition, as described by the Supreme Court itself:

Those present, at the sound of the gavel, arise and remain standing until the

robed Justices are seated following the traditional chant: “The Honorable, the

sittings periods during which the Supreme Court hears cases

recesses periods when the Supreme Court does not hear

cases but considers administrative

matters and writes opinions

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Chapter 3 The U.S. Supreme Court: The Final Word 71

Chief Justice and the Associate Justices of the Supreme Court of the United

States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the

Supreme Court of the United States, are admonished to draw near and give their

attention, for the Court is now sitting. God save the United States and this Hon-

orable Court!” (“The Court and Its Procedures,” no date)

As is customary in American courts, the nine justices are seated by seniority on

the Bench. The Chief Justice occupies the center chair, the senior Associate Justice

sits immediately to the Chief’s right, the second senior Associate Justice sits imme-

diately to the left of the Chief Justice, and so on, alternating right and left by senior-

ity. Since at least 1800, it has been traditional for justices to wear black robes while

in Court.

The public is invited to observe the Supreme Court in session, although all

Court discussions and decisions occur in private. This tradition has resulted in the

Court being one of the most leak-proof organizations in Washington—those who

work there abide by this honored tradition. The public can observe the Supreme

Court from the visitors’ gallery, and when that is filled, additional visitors are ush-

ered into an area at the rear of the courtroom where people are permitted to sit for

as long as 15 minutes before others are allowed the seats. The remaining seats are

reserved for lawyers who are admitted to the Supreme Court bar and members of

Congress. Also, a chair is always left open for the president, should he or she wish

to attend.

Strict protocol is followed, and the air of formality encourages the overall

respect the Supreme Court demands and deserves. Although the general tradi-

tions of courtesy, civility, and the utmost professionalism result in a subdued

atmosphere most of the time, the scene can change when an emotionally charged

case is heard or when Americans exert their First Amendment right to speak

their mind, often in protest. The abortion issue draws protestors on the anniver-

sary of the Roe v. Wade (1973) decision, and when related cases are heard, it can be anticipated that throngs of people on both sides of the issue will be present,

as will the media.

During recesses, the justices sit at a large conference table and discuss each case.

The most junior justice is required to present his or her view of that particular case

first. This allows the most senior justices to control the decisions as the votes come

in. The decisions reached are then cast into opinions.

Opinions

An opinion is a written statement by the Court explaining its decision in a given

case, usually including the legal issues or points of law involved, a statement of

facts, and any precedents on which the decision is based. The Chief Justice assigns

the writing of the opinion if he voted with the majority. The Justice may assign the

case to himself. If the Chief Justice did not vote with the majority, the most senior

justice voting with the majority assigns the writing of the opinion. Any justice is

free to write an opinion, even if not assigned to do so. This opinion can be a concur- ring opinion (agreeing with the majority) or a dissenting opinion (disagreeing with the majority and the reasons underlying the disagreement).

Concurring opinions, a legal tradition dating back to the 1700s, give justices

who did not author the opinion a forum to agree in part, or disagree in part, with

opinion a written statement by the court explaining its decision

in a given case, usually including

the legal issues or points of law

involved, a statement of facts,

and any precedents on which the

decision is based

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72 Section I A Foundation for Understanding Constitutional Law

what was written. Often, justices will use concurring opinions to address why they

agree with the outcome but not with the reasoning. Any opinion issued by a justice

has the power to influence others by simple virtue of the fact that a Supreme Court

Justice wrote it. These additional opinions might be viewed as “the rest of the

story” beyond what the justice writing the majority opinion sets forth and give

readers a glimpse into what the other justices were thinking.

Dissenting opinions are included along with the majority opinion to provide the

bigger picture and the other perspectives. Although including dissenting opinions

is a legal tradition dating back to the King’s Bench of Great Britain in 1792, there are

more purposeful reasons for continuing the practice. Primarily, justices can use the

opportunity to assert their opinions in hopes of influencing future decisions. Dis-

senting opinions may be referred to in briefs written by other lawyers but carry no

legal authority.

Interpretations

The justices render decisions, and they interpret the Constitution. The interpretive

principles used as the justices deliberate are crucial in accomplishing judicial

review.

Strict construction means there is a rigid reading and interpretation of that

law. Although there is no formal definition of the term, strict construction would

not likely expand the specifically set forth law of the particular statute, particu-

larly in expanding the intent of that law. Others may choose to interpret laws more

liberally, often referring to the “spirit of the law” rather than the specific wording

of the law.

A justice might interpret the law based on precedent by identifying analogous

cases and using the same line of reasoning set forth in a previous opinion to

decide a later legal issue. Alternately, a justice might interpret a case based on the

text itself or even on how they interpret the intent of those who wrote the law or Constitution.

The justices’ personal views regarding the civil rights of victims and criminals

influence the day-to-day operations of the entire justice system because they shape

the meaning of the Constitution. In addition, interpreting the Constitution is

inherently subjective, influenced by the long-term political and social pressures of

the times.

Where Supreme Court Decisions May Be Found Few people read the full text of Supreme Court decisions, relying instead on the

news media for such information. These decisions may be found in newspapers

and newscasts and in magazines such as U.S. News & World Report and Time. In addition, the Public Education Division of the American Bar Association, in

cooperation with the Association of American Law Schools and the American

Newspaper Publishers Association Foundation, publishes The Preview of United States Supreme Court Cases—an annual eight-issue subscription series that provides advance analysis of cases the Court is going to hear during that term. The first

seven monthly issues publish from October to April and correspond to the Court’s

strict construction a rigid interpretation of a law not likely

to expand the specifically set

forth law of the particular statute,

particularly in expanding the

intent of that law

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Chapter 3 The U.S. Supreme Court: The Final Word 73

seven argument sessions. The final issue of each year is written after the Court’s

term closes in June and contains a review of the cases heard during that term. Cases

may also be found on the Internet and through Westlaw and Lexis.

The Power of the Supreme Court The Supreme Court is tremendously powerful. It is so powerful that it has been

permitted to actually create much of its own immense authority. In No. 78 of The Federalist Papers, Alexander Hamilton referred to the Supreme Court as the “least dangerous” division of the federal government. Yet, in the cases of Marbury v. Madi- son and Martin v. Hunter’s Lessee, the Supreme Court was permitted to redefine its powers. Who could stop it? Perhaps diabolical in a sense, they are merely carrying

out the true intentions of the framers of the Constitution. Who else could practically

oversee the Bill of Rights?

It can be interpreted from The Federalist Papers that the Supreme Court was assigned to this awesome task. As Hamilton so stated, the interpretation of the

Constitution was to become the “proper and peculiar province of the United States

Supreme Court.” For what other reason would the framers of the Constitution have

included a supremacy clause declaring that federal law would outweigh state law?

Any system, including that of the United States, must have a final point. Cer-

tainly, many argue that “between here and there” are far too many resting points.

For example, there is an effort by many to decrease the number of appeals available

to condemned prisoners because of the time and expense involved in the current

system. Nonetheless, in the end, the Supreme Court has the definitive say, even if

it is by deciding not to hear a particular case.

In many ways, the policies and procedures by which the Supreme Court oper-

ates reflect how the U.S. legal system all comes together, quite literally, at the end.

It is the appeal of last resort for cases coming before it, reflecting the traditions and

complexities of law and the discretion that strongly influences the direction the law

takes. Interpretation, application, and review of the law give the Supreme Court

tremendous power. However, not even the Court possesses total control over the

U.S. legal system. Congress still promulgates law, and the president can still veto.

The power of the president to appoint and Congress to endorse the makeup of the

Court contributes to how the final picture will be painted.

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74 Section I A Foundation for Understanding Constitutional Law

Discussion Questions

Summary

1. Should any one court be given the final say? Why or why not?

2. Is there a negative side to appointment for life on the Court? Does this and the inability to lessen a justice’s salary really prevent influencing a Supreme Court Justice?

3. Do you think the Supreme Court is a de facto lawmaker? Why or why not?

4. Is it possible for the justices to provide a fair review of a case when they hear about it so briefly from the lawyers arguing it before them?

5. Should the Supreme Court accept so few cases? Does the fact the justices decide this totally in private concern you?

6. Do you think the current Supreme Court is carrying out the desires of the founders of our Constitution?

7. Explain where you see the real power of the Supreme Court. What makes the justices so powerful as individuals and as a group?

8. Do you believe the Supreme Court acted properly in the 2000 presidential election in Bush v. Gore (2000)?

9. If you were sitting on the Supreme Court, what sorts of cases would you look for to review?

10. What facts or circumstances might a justice focus on if he or she interpreted the Constitution using precedent as a guiding principle? What about if the justice approached interpretation from the standpoint of the original intent of the authors of the Constitution?

The Constitution ordained in Article 3 that there shall

be a Supreme Court. The Supreme Court has original

jurisdiction in cases dealing with foreign dignitaries

and legal disputes between states. All other cases are

considered only on appeal.

The Supreme Court has effectively created most

of its own power and authority through the process

of judicial review. Two precedent cases confirmed

this power. Marbury v. Madison (1803) established that the Supreme Court has the authority to nullify

and void an act of Congress that violates the

Constitution. Martin v. Hunter’s Lessee (1816) held that the Supreme Court can review and reverse

state court decisions and can review pending state

cases.

Because justices decide matters vital to national

interest, a Supreme Court appointment is a lifetime

appointment so a justice may not be unduly influ-

enced. The current Supreme Court is considered by

many to be a conservative “law and order” court.

References Baker, Peter. “Kagan Is Sworn In as the Fourth

Woman, and 112th Justice, on the Supreme Court.” The New York Times, August 7, 2010. Retrieved March 1, 2013, from www.nytimes .com/2010/08/08/us/08kagan.html?_r=0.

“The Court and Its Procedures.” Washington, DC: Supreme Court of the United States website, no date. Retrieved March 1, 2013, from www .supremecourt.gov/about/procedures.aspx.

Ducat, Craig R. Constitutional Interpretation, 9th ed. Belmont, CA: Wadsworth/Cengage Learning, 2010.

Dwyer, Terrence P. “U.S. Supreme Court Year in Review: Cases and Faces from 2009.” PoliceOne. com News. December 16, 2009. Retrieved March 1, 2013, from www.policeone.com/investigations/ articles/1979268-U-S-Supreme-Court-year-in- review-Cases-and-faces-from-2009/.

Farber, Daniel A. “Judicial Review and Its Alternatives: An American Tale.” Lake Forest Law Review, October 2003, pp. 415–444.

Goebel, Julius, Jr. The Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Volume I, Antecedents and Beginnings to 1801. New York: The Macmillan Publishing Company, Inc., 1971.

“The Justices’ Caseload.” Web page on the U.S. Supreme Court website. Accessed March 1, 2013, from www.supremecourt.gov/about/ justicecaseload.aspx.

Liptak, Adam. “Court Under Roberts Is Most Conservative in Decades.” The New York Times, July 24, 2010. Retrieved March 1, 2013, from www.nytimes.com/2010/07/25/us/25roberts .html?pagewanted=all.

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Chapter 3 The U.S. Supreme Court: The Final Word 75

Cases Cited Bush v. Gore, 531 U.S. 98 (2000) Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868) Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816)

Roe v. Wade, 410 U.S. 113 (1973) Teague v. Lane, 489 U.S. 288 (1989) United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) Virginia v. Harris, 558 U.S.___ (2009) Youngstown Sheet & Tube Co. v. Sawyer (1952)

Robinson, Robert R. “‘Still Chastened’: Assessing the Scope of Constitutional Change under an ‘Obama Court.’” The Forum, Vol. 8, Issue 2, Article 3, 2010. Retrieved March 1, 2013, from http://papers.ssrn.com/sol3/papers .cfm?abstract_id=1610251.

Rutledge, Devallis. “Beware of False Headlines.” Police, January 2010, pp. 64–67.

Smith, Christopher E. “The Rehnquist Court and Criminal Justice: An Empirical Assessment.” Journal of Contemporary Criminal Justice, May 2003, pp. 161–181.

Sourcebook of Criminal Justice Statistics. www.albany .edu/sourcebook/pdf/t5702010.pdf.

Spector, Elliot B. “50 Years of Supreme Court Decisions.” Law and Order, Fiftieth Anniversary Issue, 1953–2003, pp. 16–21.

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CHAPTER 4

All persons born or naturalized in the United States and subject to the jurisdict ion thereof , are citizens of the United States and of the State wh erein they res ide. No State shall make or enforce any law wh ich shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdict ion the equal prot ect ion of the laws.

—Fourteenth Amendment to the U.S. Constitution

Equal Protection under the Law Balancing Individual, State, and Federal Rights

The role of the jury cannot be overestimated in the U.S. legal system’s quest for due process.

Fu se

/G e

tt y

Im a

g e

iStockphoto/Thinkstock

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Chapter 4 Equal Protection under the Law 77

affirmative action

American dream

contextual

discrimination

disparate impact

disparate treatment

disparity

due process

of law

equal protection of

the law

incorporation doctrine

Jim Crow laws

movant

penumbra

preemption

prejudice

privilege

procedural due

process

racial profiling

reverse discrimination

right

SAR

substantive due

process

summary judgment

unenumerated rights

zones of privacy

Can You Define?

■ What the Thirteenth Amendment provides? the Fourteenth

Amendment?

■ How procedural due process and substantive due process differ?

■ How the incorporation doctrine prevents states from infringing on

citizens’ rights?

■ What the importance of Griswold is?

■ How enumerated and unenumerated rights differ and the two types

of standards used by the Supreme Court to evaluate them?

■ How discrimination differs from prejudice?

■ What significance the Dred Scott decision had?

■ What the Supreme Court held in Plessy v. Ferguson?

■ What Jim Crow laws are?

■ What legislation in the 1960s and 1970s prohibited discrimination?

■ What the intent of affirmative action programs was?

■ What violations of the Equal Protection Clause have occurred in the

criminal justice system?

■ How a right differs from a privilege?

■ What Fourteenth Amendment rights prisoners have?

Do You Know . . .

Introduction What can now be seen as an obvious shortcoming to the Constitution and Bill of

Rights was their failure to abolish slavery; however, the Supreme Court’s ultimate

decision to reverse itself, following ratification of the Thirteenth and Fourteenth

Amendments, making slavery illegal, is important for more than the obvious rea-

son. This is an example of our living law at work. Bearing in mind that law

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78 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

supports social norms, as hard as it is to imagine, not everyone objected to slavery

at the time the Dred Scott case was decided in 1856. Social norms changed, and the Constitution and constitutional interpretations have accommodated them. In

addition, although the Bill of Rights, as originally drafted and ratified, guaranteed

American citizens basic freedoms that the federal government could not infringe

on, it did not apply to the states, each of which had its own constitution and stat-

utes. To ensure that the states did not deny the basic rights set forth in the Consti-

tution and the Bill of Rights, Congress passed the Fourteenth Amendment. Keep

in mind the Constitution was initially drafted to limit power of the federal gov-

ernment, with later amendments extending this limitation to state and local gov-

ernments as well.

This chapter begins with a brief look at the abolition of slavery through the

Thirteenth Amendment and a discussion of the Fourteenth Amendment, which

granted slaves citizenship and required that states abide by the federal Constitution

and specific provisions in the Bill of Rights. This is followed by a discussion due

process, an explanation of enumerated rights and incorporation, a deeper examina-

tion of procedural due process and substantive due process, and a look at due

process and privacy rights. Next is an examination of discrimination versus preju-

dice, the roots of racial discrimination, and the struggle for equality. The issue of

equal protection and discrimination within the criminal justice system is also

explored. The chapter concludes with a look at how federal powers are checked.

The Thirteenth Amendment The Civil War resulted from a variety of issues, including differing interpretations

of the Constitution resulting from the different norms of a still-developing country.

The legal conflict with the emerging Constitution was that although the framers

sought to prevent excessive federal authority, their desire to give states more author- ity over their own development resulted in problems the national government

simply could not continue to overlook. Among the issues were state banks and

money versus national banks and currency, federal aid versus state aid for improv-

ing roadways and railways, and freedom versus slavery. During debates involving

these issues, two theories as to the nature of the Constitution emerged, articulated

during the 1830 Great Debate in the Senate between Robert Hayne of South Caro-

lina and Daniel Webster of Massachusetts.

On the one hand, Hayne asserted that the Union created by the Constitution

was merely a compact between sovereign states, a league of independent states,

and as such, states may lawfully withdraw from the Union if they so wish. Webster,

on the other hand, asserted that the Constitution established an indivisible Union

with laws binding on the states, and states could not simply leave the Union.

These issues came to a head when Abraham Lincoln was elected president in

1860. That December, South Carolina passed a resolution to withdraw from the

Union. Early in 1861, Florida, Georgia, Alabama, Mississippi, Louisiana, and Texas

did the same.

President Lincoln was faced with the task of trying to keep the Union together.

He had been elected on a promise to abolish slavery in the territories, but he con-

ceded that under the Constitution, slavery was legal in the states where it had been

established. Lincoln tried to assure the Southern states that he had neither the right

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Chapter 4 Equal Protection under the Law 79

nor the intent to interrupt their way of life. The Supreme Court had ruled in Dred Scott v. Sandford (1856) that even free Blacks could not be citizens of the United States and that they “had no rights which a White man was bound to respect.” The

Southern states were not convinced, however, and the Civil War ensued

(1861–1865).

The Civil War affected this country in ways no other war could. The casualties

were enormous—at least 618,000 Americans died (Davis, 1988)—and the divisive-

ness to the nation was deep, with impacts remaining to this day. It pitted American

against American and sometimes brother against brother. It is a prime example of

how important societal norms are and again showed the United States’ resolve to

stand firm to the principles on which the country was founded, as so eloquently

expressed by Lincoln in his Gettysburg Address, which began with this

declaration:

Fourscore and seven years ago our fathers brought forth on this continent a new

nation conceived in liberty and dedicated to the proposition that all men are

created equal . . .

And ended with this promise:

We here highly resolve that these dead shall not have died in vain, that this

nation under God shall have a new birth in freedom, and that government of the

people, by the people, for the people shall not perish from the earth.

While debating and passing bills regarding such critical issues of a new coun-

try as conducting war, taxes, tariffs, and banking, Congress also sought to deal

with the slavery issue. In April 1862, slavery was abolished in the District of

Columbia and two months later in all the territories. In the summer of 1862, Lin-

coln announced that unless the Southern states returned to the Union, he would

call for an end to slavery in all rebelling states. In the Emancipation Proclama-

tion, issued January 1, 1863, Lincoln declared free all the slaves in the rebelling

states. In effect, this proclamation did little. Those in the South retained their

slaves, as did those in slave states that remained loyal to the Union. What the

proclamation did, however, was set a national tone that gained momentum

toward abolishing slavery.

In January 1864, a resolution to amend the Constitution to abolish slavery

throughout the United States was introduced in Congress. After a year of pro-

longed discussion, the Thirteenth Amendment was approved by the required two-

thirds vote in both houses of Congress and ultimately ratified by the states in

December of 1865:

Neither slavery nor involuntary servitude . . . shall exist within the United States

or any place subject to their jurisdiction.

Although the Thirteenth Amendment abolished slavery in 1865, after the Civil

War, many Southern states continued discrimination by passing “Black Codes,”

which forbade Blacks to vote, serve on juries, hold certain jobs, move freely, own

firearms, or gather in groups. Racial turbulence ensued, and groups such as the Ku

Klux Klan emerged in defiance and bigotry in many communities. To remedy this

situation, Congress passed the Fourteenth Amendment, which gave Blacks citizen-

ship, a status previously defined only by the states.

The Thirteenth Amendment, ratifi ed in 1865, abolished slavery.

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80 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

The Fourteenth Amendment The Fourteenth Amendment is a significant addition to the Constitution, and

although the amendment has five sections, Section 1 has had the most lasting sig-

nificance through its creation of three important provisions concerning citizenship,

due process, and equal protection.

The first sentence in Section 1 contains the Citizenship Clause

and states that “all people born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside,” a decree that

effectively overrode the Dred Scott decision (a case discussed later in this chapter). Southern states were required to ratify the Four-

teenth Amendment before reentering the Union.

Citizenship, however, was not the only issue addressed in the

Fourteenth Amendment. The more looming concern was that

states remained able to infringe on due process and equal protec-

tion rights that federal government was prohibited from. The 1833 land dispute case

of Barron v. Mayor and City Council of Baltimore illustrates the contradictions caused when different standards are applied to federal and state government. In this case,

the plaintiff challenged the constitutionality of Baltimore taking his land for public

use and not adequately compensating him, as mandated in the Fifth Amendment.

The Supreme Court held that such a case involving local government had no place

in federal court because the first 10 amendments to the Constitution (the Bill of

Rights) were not applicable to state governments. Writing for a unanimous majority,

Chief Justice John Marshall’s opinion held that each state was permitted to draft its

own constitution, and that the federal Constitution was intended as a means to

maintain a separation of powers. The Bill of Rights was meant to be a check on the

new national government by limiting its control of state laws.

However, the Civil War had altered the perception that

national and state governments needed to be considered so sepa-

rately that one could do what the other was prohibited from doing.

And as a result, the second sentence of Section 1 of the Fourteenth

Amendment extended to the states many of the same limits placed

on federal power by promulgating: “No State shall make or

enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection of

the laws.” Through the Due Process Clause and Equal Protection Clause, the Four-

teenth Amendment thus sought to prevent both the federal and state governments

from infringing on the majority of constitutionally guaranteed rights because abuse

at either level could assault the liberties the Constitution sought to protect.

The Fourteenth Amendment prohibits the government at any level from unfairly or arbitrarily denying a citizen their fundamental and constitutionally protected

rights to life, liberty, and property (due process of law) and requires that similarly

situated people or classes of people be treated in similar ways under the law (equal

protection of the law). These rights have been the basis of many modern cases in

constitutional law.

due process of law prohibits the government from

unfairly or arbitrarily denying a

citizen their fundamental and

constitutionally protected rights to

life, liberty, and property

equal protection of the law requires that similarly situated people or classes of

people be treated in similar ways

under the law

The Fourteenth Amendment, ratifi ed in 1868, granted citizenship to all persons born or naturalized in the United States and subject to the jurisdict ion thereof .

The Fourteenth Amendment also forbid the states to deny their citizens due process of law or equal prot ect ion of the law, that is, it made certain provisions of the Bill of Rights app licable to the states .

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Chapter 4 Equal Protection under the Law 81

Due Process Due process is such an important concept of American law that no precise definition

accurately suits it, although the gist of it is quite simple: basic fairness must remain

part of the legal process. Due process provides rules and procedures to ensure fair-

ness to an individual and to prevent arbitrary government actions, by which discretion

left to an individual is removed in favor of an openness through which fundamental

individual rights—the rights to life, liberty, and property—are protected.

Due process is further distinguished as procedural or substantive. Procedural due process refers to how laws are applied. Procedural due process applies in both

the criminal and the civil arenas and comes into play whenever government seeks

to interfere with a person’s liberty or a property interest. Substantive due process,

on the other hand, requires that the laws themselves, in substance, be fair—not just

how laws are enforced. Laws that unjustly limit a person’s freedom or property

rights will be found to violate the right to due process. Examples include laws that

have permitted segregation and the unjust taking of property by the government.

Both types of due process will be discussed in more depth shortly.

For now, it is sufficient to note that procedural due process and

substantive due process work to ensure to everyone the fairness of

law under the Constitution.

The various and specific ways in which the Due Process Clause

affects criminal justice will be expanded on throughout the remain-

der of the text, including how it regulates the activities of law

enforcement officers as they strive to balance individual rights and

liberties with the needs of society, for example, in the context of

confessions, lineups, and so on. What is important to comprehend at this point is

how the Due Process Clause (1) serves as the vehicle by which specific enumerated

rights contained with the Bill of Rights are made applicable to the states (the doc-

trine of incorporation) and (2) has been applied by the Supreme Court, through its

interpretation of the term liberty, to develop a series of fundamental rights not spe- cifically enumerated in the Bill of Rights (e.g., the right to privacy).

Enumerated Rights and Incorporation

Following ratification of the Fourteenth Amendment, courts were faced with the task

of interpreting the Due Process Clause in ways that applied the fundamental provi-

sions of the Bill of Rights, known as enumerated rights, to the states.

This process of interpretation and application is referred to as incor- poration. The incorporation doctrine holds that those provisions of the Bill of Rights that are fundamental to the American legal system

are applied to the states through the Due Process Clause of the Four-

teenth Amendment, thereby preventing state or local governments

from infringing on people’s rights when federal government would

not be allowed to. Thought of another way, incorporation sets a

minimum standard or a “Constitutional floor,” allowing state gov-

ernments the opportunity to offer more protection to its people, but

not less than what the Constitution commands.

Two general theories of incorporation exist: a selective approach and a “total incor-

poration” approach. The total incorporation theory posits that the Fourteenth

due process provides rules and procedures to ensure

fairness to an individual and to

prevent arbitrary government

actions; the Fifth and Fourteenth

Amendments’ constitutionally

guaranteed right of an accused to

hear the charges against him or

her and to be heard by the court

having jurisdiction over the matter

procedural due process constitutionally guaranteed rights

of fairness in how the law is

carried out or applied

substantive due process constitutional requirement that

laws themselves be fair

incorporation doctrine holds that those provisions of the

Bill of Rights that are

fundamental to the American

legal system are applied to the

states through the Due Process

Clause of the Fourteenth

Amendment, thereby preventing

state or local governments from

infringing on people’s rights

when federal government would

not be allowed to

Procedural due process requires the law to be app lied and exec uted fairly. Substantive due process requires that the laws, themselves , be fair.

The doct rine of incorporation holds that those provisions of the Bill of Rights fundamental to the American scheme of justice—enumerated rights—are app lied to the states through the Due Process Clause of the Fourteenth Amendment.

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82 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Amendment should be interpreted such that the entirety of the Bill of Rights and all of

the guarantees and protections therein are applicable to the states under the Due Pro-

cess Clause. This theory was championed by Justice Hugo Black in Adamson v. Califor- nia (1947) when he wrote in his dissent that the Fourteenth Amendment required “total incorporation” of the Bill of Rights, nothing more or nothing less. This approach pro-

vides that the “liberties” applied to the states are those explicit in the Constitution.

The total incorporation theory, however, has remained a relatively obscure

interpretive stance among Supreme Court justices; the far more prominent theory

has been that of selective incorporation.

The ad hoc or selective approach starts with the notion that if a right is implicit in the concept of ordered liberty, it is absorbed into the Due Process Clause and is, therefore, applicable to the states. In one of the first incorporation cases, Justice John

Marshall Harlan stated, “There are principles of liberty and justice lying at the

foundation of our civil and political institutions which no state can violate consis-

tently with that due process of law required by the Fourteenth Amendment in

proceedings involving life, liberty or property” (Plessy v. Ferguson, 1896). And in Palko v. Connecticut (1937), Justice Benjamin Cardozo asserted there were rights “so rooted in the traditions and conscience of our people as to be ranked as fundamen-

tal,” meaning “essential to justice and the American system of political liberty.”

Presently, the test for determining what should be incorporated is based on the

premise that if a right is “fundamental to the American scheme of justice,” it should be applied to the states through due process, a standard set forth by the Court in

Duncan v. Louisiana (1968). In this case, the defendant, Gary Duncan, was driving his car when he noticed two of his cousins involved in a conversation with four boys

on the side of the road. Duncan’s cousins, who are black, had been recently involved

in racial incidents at their school. The four boys with whom they were speaking

were white. Duncan stopped his car, got out, and encouraged his cousins to come

with him and leave. Just before Duncan and his two cousins got into the car to leave,

Duncan touched one of the other boys’ elbows. Duncan was later arrested and

charged with assault. At trial, the four boys testified that Duncan slapped the white

boy, whereas Duncan and his cousins testified that he merely touched the other boy.

Duncan, who requested a jury trial and was denied, was found guilty of simple bat-

tery by a judge and given a 60-day prison sentence and a $10 fine. The maximum

sentence was two years imprisonment and up to a $300 fine.

Duncan appealed, claiming violations of his Fifth and Sixth Amendment

rights, and the case reached the Supreme Court, which ruled in favor of appellant

Duncan. In their analysis, the Court held that the test for determining whether a

right extended by the Fifth and Sixth Amendments with respect to federal crimi-

nal proceedings is also protected against state action by the Fourteenth Amend-

ment is to assess whether the right is among the “fundamental principles of liberty

and justice which lie at the base of all our civil and political institutions.” In Dun- can, the Court noted how “The guarantees of jury trial . . . reflect a profound judg- ment about the way in which law should be enforced and justice administered.”

The Court emphasized that the right of a jury trial in serious criminal cases quali-

fies for protection under the Due Process Clause of the Fourteenth Amendment

and must be enforced against the states. The Court explained this through a thor-

ough evaluation of the history surrounding trial by jury and explained the evils

one is meant to protect against.

CASE IN BRIEF

Duncan v. Louisiana (1968)

ISSUE Is the denial of a jury trial in a state criminal prosecu-

tion, where a sentence of up

to two years imprisonment is

possible, a violation of the Sixth

and Fourteenth Amendments of

the U.S. Constitution?

RULING Yes, because the right to a jury trial is “fundamental to

the American scheme of justice.”

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Chapter 4 Equal Protection under the Law 83

Duncan illustrates the “modern” test of incorporation of an enumerated right, and importantly, prescribes that the incorporated rights apply to the states in the

same way that they apply to the federal government.

The differing incorporation theories are, today, largely of historical significance

because most of the Bill of Rights has been incorporated. In fact, to answer the ques-

tion of which rights within the Bill of Rights apply to the states, it is often easier to

answer, instead, which do not. Of the first eight amendments, only two individual guarantees have not been made applicable to the states by the Supreme Court:

■ The Fifth Amendment clause guaranteeing criminal prosecution only on a

grand jury indictment. ■ The Seventh Amendment guarantee of a jury trial in a civil case.

Previous editions of this text also included the Second Amendment, which guar-

antees the right to bear arms, among the unincorporated amendments. However, in

June 2010, the Supreme Court made a landmark decision, holding that the right of

an individual to keep and bear arms, as protected by the Second Amendment, is

incorporated by the Due Process Clause of the Fourteenth Amendment and, as such,

applies to the states (McDonald v. Chicago, 2010). The Third Amendment prohibiting the quartering of soldiers in private houses

and the Eighth Amendment prohibiting excessive fines have yet to be addressed by

the Court.

Before leaving the discussion of incorporation, it is fair to ask why an amend-

ment was not passed that simply applied the Bill of Rights, in its entirety, to the

states? The short answer to this immensely complicated, political, philosophical,

and legal question is that the tremendous changes occurring in the norms of this

emerging country had to be given ample time to evolve on their own. Interpreting

the Constitution on the basis of societal norms—the essence of a “living law”—is

what has allowed the Constitution to remain effective, and this would prove itself

as the era of civil rights and liberties continued to emerge.

Procedural Due Process

The Due Process Clauses of the Fifth and Fourteenth Amendments provide proce-

dural safeguards. Procedural due process is required when the government seeks

to deprive a person of life, liberty, or property. Procedural due process challenges

the fairness of how a government action was carried out—the legality of the actual process—and not the substantive basis of the law itself.

Central to the discussion of procedural due process is the concept of interest; if a legitimate interest is not at stake, procedural due process will not apply. Life,

liberty, and property are protected interests, but what, exactly, constitutes these

interests? The Court has explained it this way:

While this Court has not attempted to define with exactness the liberty . . .

guaranteed [by the Fourteenth Amendment], the term has received much con-

sideration and some of the included things have been definitely stated. Without

doubt, it denotes not merely freedom from bodily restraint but also the right of

the individual to contract, to engage in any of the common occupations of life,

to acquire useful knowledge, to marry, establish a home and bring up children,

to worship God according to the dictates of his own conscience, and generally to

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84 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

enjoy those privileges long recognized . . . as essential to the orderly pursuit of

happiness by free men. (Meyer v. Nebraska, 1923)

Liberty interests, which are highly protected, cover a broad spectrum. The Constitu-

tion is the source for fundamental liberty interests. Lower-level liberty interests also

exist and are government-created by state legislation.

Property interests also require procedural due process but, unlike liberty inter-

ests, are not derived from the Constitution, instead being created and defined by state

law (Board of Regents of State Colleges v. Roth, 1972). Real estate and personal property are examples. Supreme Court decisions have found property interests in welfare

benefits, unemployment compensation, and professional licenses. Property interests

receive procedural due process protection when the government has made it clear

the interest will not be impaired except under certain conditions. To have a property

interest in a government-created interest, one “must have more than an abstract need

or desire for it” and “have a legitimate claim of entitlement to it” (Roth, 1972). Procedural due process requires a person be given notice of the deprivation and

a reasonable opportunity to be heard. Notice requires the conveyance all necessary

information so the person can protect the interest. Depending on the interest at

stake, the opportunity to be heard might be as elaborate as a trial or as simple as a

chance to respond in writing (Boddie v. Connecticut, 1971). To determine how com- plex a procedure must be, the court will examine (1) the significance of the affected

interest, (2) whether additional safeguards would reduce the risk of error, and (3)

the public interest in resolving the matter efficiently so as to avoid administrative

and fiscal burdens (Mathews v. Eldridge, 1976).

Substantive Due Process

The Due Process Clauses of the Fifth and Fourteenth Amendments, in addition to

guaranteeing procedural safeguards, also protect substantive rights and require

that laws themselves, in substance, be fair. Substantive due process comes into play

when a legislature enacts a law that interferes with individual rights because the

Supreme Court has interpreted the Due Process Clause as guaranteeing that a per-

son’s life, liberty, and property cannot be taken by the government without appro-

priate justification, regardless of the procedures employed during the taking.

Although substantive due process is a concept related to the textual guarantees

of the law, it also operates to protect those characteristics of life, liberty, or property

not specifically mentioned in the Constitution. These rights are found in the sub-

stance of the “liberty” aspect of the Due Process Clause, as stated by Chief Justice

Warren Burger in Richmond Newspapers Inc v. Virginia (1980):

Notwithstanding the appropriate caution against reading into the Constitution

rights not explicitly defined, this Court has acknowledged that certain unarticu-

lated rights are implicit in enumerated guarantees. For example, the rights of

association and of privacy, the right to be presumed innocent, and the right to be

judged by a standard of proof beyond a reasonable doubt in a criminal trial, as

well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet

these important but unarticulated rights have nonetheless been found to share

constitutional protection in common with explicit guarantees. . . . Fundamental

rights, even though not expressly guaranteed, have been recognized by the Court

as indispensable to the enjoyment of rights explicitly defined.

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Chapter 4 Equal Protection under the Law 85

Rights not specifically listed or articulated in the Bill of Rights are known as

unenumerated rights. They are no less important than specified rights but have

been left to develop with our society. Among the unenumerated rights the Supreme

Court has recognized are the right to privacy, the right to interstate and interna-

tional travel, the right to vote, and freedom of association.

How these rights are determined and what level of judicial scrutiny should be

applied to laws that interfere with them are the main questions associated with

substantive due process.

Finding the Right to Exist Substantive due process began as a way to protect

individual economic rights not textually guaranteed by the Constitution. In Lochner v. New York (1905), the Court determined that a freedom to contract existed via the liberty aspect in the Due Process Clause. When the New York legislature enacted a

law that limited the number of hours a baker could work, the Court determined

that was a violation of due process.

Substantive due process was also employed in areas of civil liberties where

there was no specific enumerated right. For example, in Meyer v. Nebraska (1923), a case involving a state law that prohibited the teaching of a foreign language to

grade school children, the Court simply determined a liberty interest existed in par-

ent’s ability to control their children’s education.

The Griswold Approach to Finding Unenumerated Rights The notion

that unenumerated rights existed went into a hiatus after the Meyer decision but was revived in Griswold v. Connecticut (1965), a case involving an 1897 Connecticut law that made it illegal to use, or counsel another to use, contraceptives. The

Supreme Court, noting that a “right to privacy” in regard to marriage existed

within the Fourteenth Amendment, found the Connecticut law to violate due pro-

cess. However, rather than simply stating that a right to privacy existed, in Gris- wold, the Court tied this new right to those enumerated in the Constitution. In his opinion, Justice William Douglas explained the Court’s rationale:

The association of people is not mentioned in the Constitution nor in the Bill of

Rights. The right to educate a child in a school of the parents’ choice—whether

public or private or parochial—is also not mentioned. Nor is the right to study

any particular subject or any foreign language. Yet the First Amendment has

been construed to include certain of those rights.

Douglas expounded on the Court’s position by asserting that certain rights

and liberties, even though not be specifically stated in the Constitution, exist

because “specific guarantees in the Bill of Rights have penumbras, formed by

emanations from those guarantees that help give them life and substance” (Gris- wold v. Connecticut, 1965). In astronomy, a penumbra is a type of shadow. Doug- las used astronomy as an example to show how certain rights in the Bill of

Rights have other peripheral rights implied in or along with them. These

peripheral rights are important and necessary to protect the specific, enumer-

ated rights.

Through its various opinions in Griswold, the Court went on to explain that specific enumerated rights contained within the Constitution—namely guarantees

provided within the First, Third, Fourth, Fifth, and Ninth Amendments—and their

penumbras converged and overlapped to create zones of privacy, which are areas

unenumerated rights rights not specifically listed in the

Bill of Rights

penumbra a type of shadow in astronomy with the principle

extending to the idea that certain

constitutional rights are implied

within other constitutional rights

zones of privacy areas into which the government may not

intrude

CASE IN BRIEF

Lochner v. New York (1905)

ISSUE Does a New York state law forbidding a baker to work

more than 10 hours in a day

or 60 hours in a week violate

the liberty protected Fourteenth

Amendment?

RULING Yes. The Supreme Court decided the law is not

reasonable and interferes with

the right to contract found in the

liberty aspect of the Due Process

Clause.

CASE IN BRIEF

Griswold v. Connecticut (1965)

ISSUE In the case of a married couple, can a state law restrict

the counseling of contraceptives

without violating the Constitution?

RULING No. A right to privacy is found in the penumbras of the

enumerated rights protected by

the Constitution. The Connecticut

law interferes with that right and

is therefore unconstitutional.

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86 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

safe from governmental intrusion. In the Griswold case, the fact that marital pri- vacy exists within the zones was evident to the Court, with Justice Douglas writ-

ing that the intimacy of the marriage relationship involved a “right of privacy

older than the Bill of Rights.” Consequently, the Connecticut law was struck down

as unconstitutional.

Note that now, through Roe v. Wade (1973), the Court merely accepts that a “right to privacy” exists in the concept of liberty contained within the Fourteenth

Amendment. This privacy right has been extended to many areas, including abor-

tion, marriage, family life, sexual orientation, and the right to refuse medical care.

We will return to privacy rights shortly, after finishing our examination of substan-

tive due process and how the Supreme Court has interpreted the concept of liberty contained within the Fourteenth Amendment to identify nontextual rights.

Modern Substantive Due Process The penumbras method used by the

Court in Griswold to identify unenumerated rights via the Due Process Clause has since fallen by the wayside. Now, the Court carefully describes the perceived right

and examines the question of whether that right possesses ideals that are “deeply

rooted in our history and traditions, or so fundamental to our concept of constitu-

tionally ordered liberty, that they are protected by the Fourteenth Amendment”

(Washington v. Glucksberg, 1997). If the right meets this standard, it is considered a fundamental interest.

When the Court finds that a fundamental liberty interest is at stake, it employs

the strict scrutiny test, which looks at the law in question and determines whether

it is narrowly tailored to serve a compelling government interest. As such, the onus

is on the government to defend the law by showing it is the

least burdensome legislation and that the government interest

is strong. Textually explicit (enumerated) rights, which are

incorporated against the states, are almost always evaluated

with strict scrutiny. Nontextual (unenumerated) rights, which

exist via the “liberty” guaranteed by the Fourteenth Amend-

ment to protect individuals from state interference, can also be

evaluated under strict scrutiny if they are determined to be

fundamental (generally those involving civil rights).

If the right is not deemed to be fundamental, the court will apply the rational basis

test instead. This approach reverses the burden and places it on the person challeng-

ing the law, who must show that it is not rationally related to any legitimate govern- mental goal, regardless of whether the law actually furthers it or not. These rights

often lie in the areas of general economic or property liberties and social matters.

Initially the Supreme Court took an active role in the area of economic legisla-

tion and highly scrutinized these laws, with early case analysis offering little defer-

ence to legislatures in the area of economic liberties, despite the burden being on

the government to show justification. Eventually the Court began to view state

economic legislation in a different light. During the Great Depression, the Supreme

Court decided Nebbia v. New York (1934), a case involving a New York law that, in an effort to save farmers, had set a minimum price for milk. In upholding the law,

the Court wrote in its opinion,

With the wisdom of the policy adopted, with the adequacy or practicability of

the law enacted to forward it, the courts are both incompetent and unauthorized

MYTH The right to privacy is explicitly

protected by the Constitution.

REALITY The Constitution does not

expressly contain a right to

privacy. However, aspects of the

Constitution’s amendments show

a belief that privacy is important

and should be protected from the

government. For example, the First

Amendment protects privacy in

the area of freedom of religion; the

Fourth Amendment protects an

individual privacy in one’s home;

and the Fifth Amendment does

not allow one to be compelled

to testify against him or herself,

showing an interest in protecting

personal information. The right to

privacy has been developed over

many Supreme Court decisions

in which the “liberty” guaranteed

by the Fourteenth Amendment’s

Due Process Clause has been

interpreted broadly to guarantee a

right to privacy.

The ultimate importance of Griswold is that the Supreme Court will rec ognize fundamental unenumerated rights within the Due Process Clause.

CASE IN BRIEF

Washington v. Glucksberg (1997)

ISSUE Does a Washington state law prohibiting physician-

assisted suicide violate the

Due Process Clause because

it impermissibly interferes with

the liberty interest of a person to

choose death over life?

RULING No. The liberty to be assisted in suicide by a physician

is not a fundamental right or

liberty which is “deeply rooted in

this Nation’s history and tradition.”

Although it is an aspect of liberty, it

does not deserve high-level scru-

tiny and must only be rationally

related to the state’s interests.

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Chapter 4 Equal Protection under the Law 87

to deal. The course of decision in this court exhibits a firm

adherence to these principles. Times without number we

have said that the legislature is primarily the judge of the

necessity of such an enactment, that every possible pre-

sumption is in favor of its validity, and that though the

court may hold views inconsistent with the wisdom of the

law, it may not be annulled unless palpably in excess of

legislative power.

Thus, the previous high-level scrutiny of economic legisla-

tion seen in Lochner ceased after Nebbia. This important shift in scrutiny signaled the willingness of the Court to

give a high level of deference to legislatures on the facts

and basis for economic regulation. As long as there was a

rational basis for the legislation, the law would stand. The

Court would not substitute their social and economic

beliefs for that of the legislature.

The Court, in United States v. Carolene Products Co. (1938), emphasized this shift away from high-level scrutiny for economic legisla-

tion, with a footnote to the opinion expressing that some liberty interests would

come under a higher level of scrutiny. This cemented the direction the Court would

take; high-level scrutiny for those laws that infringe on fundamental rights,

whereas those laws that are of an economic nature would only receive a low level

of scrutiny.

The Debate The process of identifying liberties or rights that are not specifically

written in the Constitution has not occurred without its share of debate. Proponents

of the process believe that certain rights need to exist to give the enumerated rights

their full force. Also, these liberties and rights are of special concern in that they

have a profound impact on an individual. Detractors of the process, however, point

to the Constitution as the explicit source of our rights and liberties, contending that

the identification of rights not textually enumerated is simply wrong. No matter

how the process is described, it nonetheless usurps the power of the legislature and

becomes a subjective judicial exercise.

Due Process and Privacy Rights

Since Griswold, the issue of privacy rights has expanded in ways the framers of the Constitution and the Bill of Rights could never have foreseen when they promul-

gated an amendment to protect people’s liberty from undue government intrusion.

Here we will examine two relatively innovative, yet controversial, techniques law

enforcement has begun using to be more effective in detecting and solving crime

yet that raise concerns about individual privacy rights: suspicious activity reports

and familial DNA testing.

The Nationwide Suspicious Activity Reporting Initiative A suspicious

activity report (SAR) is an official documentation of observed behavior that may be

indicative of intelligence gathering or preoperational planning related to terrorism,

criminal, or other illicit intention. SARs focus on what law enforcement agencies

have been doing for years—gathering information regarding behaviors and

SAR (suspicious activity report) an official documentation of

observed behavior that may be

indicative of intelligence

gathering or preoperational

planning related to terrorism,

criminal, or other illicit intention

Enumerated rights are textually explicit rights incorporated against the states and almost always evaluated with strict scrutiny. Unenumerated rights, in contrast, are not explicitly stated in the Constitution or Bill of Rights but exist via the liberty guaranteed by the Fourteenth Amendment and are considered either fundamental (e.g., civil liberties ), thus evaluated under strict scrutiny, or non-fundamental (e.g., ec onomic or property liberties ), wh ich are evaluated under a rational basis tes t.

CASE IN BRIEF

Nebbia v. New York (1934)

ISSUE Does a New York law that establishes a minimum milk

price violate the Due Process

Clause?

RULING No. The Supreme Court, in contrast to the previous

Lochner case, decided that in the

area of social and economic leg-

islation, if the law is not arbitrary

and has a reasonable relation to

promoting public welfare, a state

may adopt whatever economic

policy it wishes to accomplish its

stated purpose and to enforce

that policy by legislation adapted

to its purpose. The courts are

without authority either to declare

such a policy or, when it is

declared by the legislature, to

override it.

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88 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

incidents associated with crime and establishing a process whereby information can

be shared to detect and prevent criminal activity, including that associated with

domestic and international terrorism, for example, surveillance. The Nationwide

Suspicious Activity Reporting Initiative (NSI) is a collaborative effort among federal,

state, local, and tribal government agencies with counterterrorism responsibilities

that seeks to establish a unified approach at all levels of government to gather, docu-

ment, process, analyze, and share information about terrorism-related suspicious

activities (Nationwide SAR Initiative: Technology Overview, 2012). The NSI makes local SARs available to federal, state, and local law enforcement agencies and to state and

major urban area fusion centers. Pilot testing and evaluation of the initiative is cur-

rently underway at police departments in Boston, Massachusetts; Chicago, Illinois;

Houston, Texas; Miami–Dade, Florida; as well as in the Florida Department of Law

Enforcement, the New York State Police, the Virginia State Police, and the Washing-

ton, DC, Metropolitan Police Department (Nationwide Suspicious Activity Reporting (SAR) Initiative, 2009). Figure 4.1 illustrates the sharing of SAR information.

Although the information entered into the SAR database is vetted, civil rights

advocates have questioned the initiative as another instance of “Big Brother.”

Familial DNA Database Searches Another relatively recent crime fighting

technique is familial DNA analysis. Advances in DNA technology and the develop-

ment of DNA databases have allowed investigators to search for genetically close

matches to help solve crimes committed by relatives of people in the database.

Siblings, parents, aunts, uncles, and cousins can be linked to crimes because their

relative’s DNA closely resembles DNA found at a crime scene. The basic principle

Option 1: Requiring immediate action

Option 2: eGuardian

Federated Search

Fusion center

Departmental approval

Reporting

Storage

Vetting

Sharing

LEO

JTTF

Option 3: Shared spaces

Figure 4.1 Sharing SAR Information

Source: Nationwide SAR Initiative: Technology Overview. Washington, DC: Bureau of Justice Assistance, May 2012, p. 2. See URL http://nsi.ncirc.gov/documents/NSI_Technology_ Fact_Sheet.pdf.

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Chapter 4 Equal Protection under the Law 89

“Drones Over U.S. Get OK by Congress”

By S. Smithson (The Washington Times, February 7, 2012)

Look! Up in the sky! Is it a bird? Is it a plane? It’s . . . a

drone, and it’s watching you. That’s what privacy advocates fear from a bill

Congress passed this week to make it easier for the government to fly

unmanned spy planes in U.S. airspace.

The FAA Reauthorization Act, which President Obama is expected to

sign, also orders the Federal Aviation Administration to develop regulations

for the testing and licensing of commercial drones by 2015.

Privacy advocates say the measure will lead to widespread use of drones

for electronic surveillance by police agencies across the country and eventu-

ally by private companies as well.

“There are serious policy questions on the horizon about privacy and

surveillance, by both government agencies and commercial entities,” said

Steven Aftergood, who heads the Project on Government Secrecy at the Fed-

eration of American Scientists.

The Electronic Frontier Foundation also is “concerned about the implica-

tions for surveillance by government agencies,” said attorney Jennifer Lynch.

The provision in the legislation is the fruit of “a huge push by lawmakers

and the defense sector to expand the use of drones” in American airspace, she

added.

According to some estimates, the commercial drone market in the United

States could be worth hundreds of millions of dollars once the FAA clears

their use.

The agency projects that 30,000 drones could be in the nation’s skies by

2020.

The highest-profile use of drones by the United States has been in the

CIA’s armed Predator-drone program, which targets al Qaeda terrorist lead-

ers. But the vast majority of U.S. drone missions, even in war zones, are flown

for surveillance. Some drones are as small as model aircraft, while others

have the wingspan of a full-size jet.

In Afghanistan, the U.S. use of drone surveillance has grown so rapidly

that it has created a glut of video material to be analyzed.

The legislation would order the FAA, before the end of the year, to expe-

dite the process through which it authorizes the use of drones by federal,

state and local police and other agencies. The FAA currently issues certifi-

cates, which can cover multiple flights by more than one aircraft in a particu-

lar area, on a case-by-case basis.

The Department of Homeland Security is the only federal agency to dis-

cuss openly its use of drones in domestic airspace.

U.S. Customs and Border Protection, an agency within the department,

operates nine drones, variants of the CIA’s feared Predator. The aircraft,

IN THE NEWS

(Continued)

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90 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

which are flown remotely by a team of 80 fully qualified pilots, are used prin-

cipally for border and counternarcotics surveillance under four long-term

FAA certificates.

Officials say they can be used on a short-term basis for a variety of other

public-safety and emergency-management missions if a separate certificate is

issued for that mission.

“It’s not all about surveillance,” Mr. Aftergood said.

Homeland Security has deployed drones to support disaster relief opera-

tions. Unmanned aircraft also could be useful for fighting fires or finding

missing climbers or hikers, he added.

The FAA has issued hundreds of certificates to police and other govern-

ment agencies, and a handful to research institutions to allow them to fly

drones of various kinds over the United States for particular missions.

The agency said it issued 313 certificates in 2011 and 295 of them were still

active at the end of the year, but the FAA refuses to disclose which agencies

have the certificates and what their purposes are.

The Electronic Frontier Foundation is suing the FAA to obtain records of

the certifications.

“We need a list so we can ask [each agency], ‘What are your policies on

drone use? How do you protect privacy? How do you ensure compliance

with the Fourth Amendment?’” Ms. Lynch said.

“Currently, the only barrier to the routine use of drones for persistent

surveillance are the procedural requirements imposed by the FAA for

the issuance of certificates,” said Amie Stepanovich, national security coun-

sel for the Electronic Privacy Information Center, a research center in

Washington.

The Department of Transportation, the parent agency of the FAA, has

announced plans to streamline the certification process for government drone

flights this year, she said.

“We are looking at our options” to oppose that, she added.

Section 332 of the new FAA legislation also orders the agency to develop

a system for licensing commercial drone flights as part of the nation’s air traf-

fic control system by 2015.

The agency must establish six flight ranges across the country where

drones can be test-flown to determine whether they are safe for travel in con-

gested skies.

Representatives of the fast-growing unmanned aircraft systems industry

say they worked hard to get the provisions into law.

“It sets deadlines for the integration of [the drones] into the national air-

space,” said Gretchen West, executive vice president of the Association for

Unmanned Vehicle Systems International, an industry group.

She said drone technology is new to the FAA.

The legislation, which provides several deadlines for the FAA to report

progress to Congress, “will move the [drones] issue up their list of priorities,”

Ms. West said.

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Chapter 4 Equal Protection under the Law 91

is that DNA profiles of people who are related are likely to contain similarities.

Familial DNA database searches can lead to the identity of an individual who could

be a sibling of the offender or the offender’s parent or child. This investigative

technique is most commonly used in the United Kingdom. Civil rights groups have

strongly opposed this technique as an invasion of privacy.

The preceding examples illustrate the continuing challenge of balancing indi-

vidual and governmental rights and involve issues that may one day end up before

the Supreme Court for a determination of constitutionality. However, one govern-

ment activity that the Court has continually declared to be unconstitutional is

discrimination.

MYTH DNA is only useful if a substantial

amount of visible bodily fluid

(blood, semen, etc.) is found at a

crime scene.

REALITY This may have been true a decade

ago, but with improved forensic

techniques, a useful amount of

DNA material may be found on a

discarded cigarette butt or a sur-

face touched by a suspect. Touch

DNA, invisible to the naked eye,

is genetic material found in skin

cells that are left behind when

a suspect touches something. A

dozen cells are often enough to

provide a testable sample.

“Familial DNA Hunt Brings Legal Questions”

(United Press International, December 4, 2012)

SANTA ANA, Calif., Dec. 4 (UPI)—An investigative tech-

nique called familial DNA searching has helped solved crimes in California

but legal analysts warn it overlooks constitutional safeguards.

The technique—which was instrumental in leading to the arrest in Los

Angeles of an accused mass murdered known as the Grim Sleeper—

involves using DNA from crime scenes to search databases for people who

are related to the source of the DNA.

Cold case investigators in Orange County did a familial search to iden-

tify a man who raped and killed Lynda Susan Saunders and wounded

another man in 1978. DNA retrieved from Saunders’ body of led investiga-

tors to conclude last month the killer was James Lynn Brown, who commit-

ted suicide in 1996, The Orange County Register reported Tuesday. “This case would not have been solved without the familial searches

because the suspect is deceased and his DNA sample never went into the data-

base,” said Mary Hong, a forensic scientist at the Orange County Crime Lab.

However, Michael Risher, a lawyer with the American Civil Liberties

Union of Northern California, told the newspaper the California Legislature

has not authorized use of the technique, “so we have the search procedures

conducted based on a memo that the Department of Justice developed.”

Risher said using familial search techniques overlooks constitutional

protections, including a requirement that police obtain search warrants.

California Department of Justice spokeswoman Michelle Gregory said

the state restricts use of familial searching to cases of homicide and sexual

assault involving serious risk to public safety, and it may be used only when

all other investigative leads have been pursued. She said the state can “per-

form familial searches in a manner that balances the rights of individuals

with society’s interest in solving crimes.”

California is one of three states where the technique is in use, the Register said.

IN THE NEWS

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92 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Discrimination versus Prejudice Most people have some preconceived notions, or prejudices, about specific people

or groups of people. This might include members of minority groups and other

categories, such as the elderly, teenagers, the disabled, professional athletes, homo-

sexuals, and police officers. According to Moule (2009, p. 322), “Ethnic and racial

stereotypes are learned as part of normal socialization and are consistent among

many populations and across time.” These stereotypes frequently foster uncon-

scious biases, which commonly lead to unintentional racism, “racism that is usually

invisible even and especially to those who perpetrate it” (Moule, p. 321). In a democratic society, individuals are free to think what they want. However,

if these thoughts translate into socially unacceptable behaviors, problems arise,

sometimes to the point where government is justified in intervening.

If prejudices are converted into acts, laws punish the actor and protect the

victim.

The Roots of Racial Discrimination Racial discrimination has existed since before the time of colonial America and the

Constitution. To people such as George Washington, Alexander Hamilton, and

Thomas Jefferson, slavery was an accepted part of life.

Although the Thirteenth Amendment to the Constitution declared slavery illegal,

it could not outlaw unequal treatment or change racial attitudes so prominent in

Southern states. In 1896, the case of Plessy v. Ferguson was brought before the Supreme Court and heightened awareness of racial issues. Homer Plessy had refused to abide

by a law that required black people to sit in a separate train car. Plessy, who took a

vacant seat in a coach designated to accommodate passengers who were White, was

told to move but he refused. He was arrested and charged with vio-

lating state law. Plessy, who was seven-eighths Caucasian and one-

eighth African blood, and whose mixture of colored blood was not

discernable in him, brought suit, arguing that “he was entitled to

every right, privilege and immunity secured to citizens of the United

States of the white race” and that the law violated his Thirteenth and

Fourteenth Amendment rights. The Court ruled against Plessy:

If the two races are to meet upon terms of social equality, it must

be the result of . . . a voluntary consent of individuals. . . . Legisla-

tion is powerless to eradicate racial instincts . . . and the attempts

to do so can only result in accentuating the difficulties of the pres-

ent situation.

Racial tension mounted as states passed laws to ensure that

Whites could maintain their privileged status.

Jim Crow laws supposedly kept Blacks “separate but equal.” The compelling

question became whether separate could ever really be equal.

The issue of separate but equal was eventually addressed head-on in Brown v. Board of Education of Topeka (1954), when a group of Black children sought admission to an all-White public school. The plaintiffs claimed they were being denied their

constitutional right to equal protection and that the laws of separate but equal were

Prejudice is an att itude; discrimination is a behavior.

prejudice a negative attitude regarding a person or thing

discrimination an action or behavior based on prejudice

Ples sy v. Ferguson (1896) showed the Court’s des ire to avoid civil rights iss ues , dec laring discrimination to be outside the realm of the Court.

The Dred Scott dec ision (1856) ruled that a fr eed slave did not have the right to remain fr ee in a territory wh ere slavery was still legal.

Jim Crow laws strict ly segregated Blacks fr om Whites in schools, res taurants, street cars, hospitals, and cemet eries .

Jim Crow laws laws that strictly segregated Blacks from

Whites in schools, restaurants,

streetcars, hospitals, and

cemeteries

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Chapter 4 Equal Protection under the Law 93

in fact not equal. The Court agreed in Brown, holding that separate-but-equal schools were illegal. The momentum of the Brown decision prompted further legis- lation regarding equality and led to one of the greatest civil rights advances in our

history, the 1964 Civil Rights Act.

The Struggle for Equality Through the tumultuous challenges of racism and segregation during the 1950s and

1960s, the United States continued its struggle with what equal really meant. Some chose to embrace equality, whereas others chose to resist any movement toward

equality, sometimes to the point of participating in violence, such as that perpe-

trated by the Ku Klux Klan. But the Supreme Court had spoken, and the tide of

public opinion was turning toward a willingness to become a unified country with

“equal protection for all.”

Racial discrimination has not been the only way segments of U.S. society have

been made to feel disenfranchised. Gender discrimination is an issue our law has

had to confront as well. As difficult as it is for today’s generation to imagine,

women were not allowed to vote until 1920, 50 years after discrimination based on

race was prohibited by the Fifteenth Amendment. Gender discrimination remained

during the 1960s; for example, women often were denied equal pay for equal work.

It is 5 a.m. and you and your partner are respond-

ing to a call of a suspicious person near a power

plant. The caller, a plant employee, told the dis-

patcher that there is a Middle Eastern male taking

pictures of the power plant guard station and

entrances and exits. The caller also explained that

the same male had been seen in the area the previ-

ous two days at the same time of day.

You arrive and see a minivan parked on the

side of the road. You run the out-of-state license

plate and notice there is someone sitting in the

driver’s seat, so you and your partner get out of

your squad to go talk to the driver.

He tells you that he is an engineering student

with an interest in power plants. You ask him

where he goes to school, and he replies that he is

not enrolled anywhere right now.

Your partner notices an open notebook on the

front seat of the van, with dates, times, and “num-

ber of guards” written many times over on the

visible page. There is also a laptop computer and

several cell phones inside the minivan. In addition,

there happens to be a textbook, Power Plant Archi- tecture, on the floor in front of the passenger seat.

The driver provides you with an out-of-state

driver’s license but does not have proof of insur-

ance as required by state law. You issue him a cita-

tion for that, write down all of the information you

saw, and submit an intelligence report to your

department’s intelligence unit.

■ Should a person’s race, religion, or ethnicity ever be used as a basis for law enforcement action? Why or why not?

■ Would your answer change based on the severity of the crime being investigated?

■ Does the level of law enforcement action at issue change your response?

Constitutional Law in ACTION

e n

g a

g e

L e

a rn

in g

2 0

1 5

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94 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Head-of-household rules granting higher pay applied only to

men. Women also often found they would not be promoted,

were excluded from certain professions, and were permitted to

serve only limited roles in the military. Even educational oppor-

tunities were denied women in some instances. But, as was the

case with people of color who found themselves and their lives

limited, eventually laws recognized a changing norm in society.

For example, when the federal government brought suit against

both Virginia and the Virginia Military Institute (VMI), challeng-

ing the male-only admissions policy as a violation of equal pro-

tection, the Supreme Court decision in United States v. Virginia (1996) held that the exclusion of females from the Institute was

unconstitutional (Ducat, 2010).

The Rise of Affirmative Action Programs

Many argued that these antidiscrimination laws were nothing but hollow promises

that in reality did little to rid society of discrimination in employment and education

opportunities. In response, President Richard M. Nixon’s adminis-

tration formed a coalition to address unequal treatment of minori-

ties and women. The result was affirmative action programs.

Affirmative action programs, sometimes referred to as ethnic-

and gender-preference programs, were designed to cure dis-

crimination in hiring and eliminate past, present, and future

discrimination using race, color, sex, and age as deciding criteria.

The idea was that minorities and women would no longer be discriminated

against in employment and educational opportunities and, in fact, would be given

extra consideration to meet goals and quotas. President John F. Kennedy first used

the actual phrase affirmative action in his 1961 Executive Order 10925 requiring federal contractors to hire applicants without regard to their race, creed, color, or

national origin. President Lyndon Johnson’s 1965 Executive Order 11246 used the

same language. In 1967 Johnson expanded the Executive Order to include affirma-

tive action requirements to benefit women (Sykes, 1995).

According to Brunner (2007), “From the outset, affirmative action was envi-

sioned as a temporary remedy that would end once there was a ‘level playing field’

for all Americans.” Focused on education and jobs, policies required that active

measures be taken to make certain that minorities had the same opportunities for

promotions, salary increases, career advancement, school admissions, scholarships,

and financial aid that had been dominated by White males.

The landmark case in this issue is Regents of the University of California v. Bakke (1978), in which the Supreme Court upheld in a 5–4 decision the Univer- sity of California’s use of race as one factor in determining admissions. Alan

Bakke, a White male, had twice been denied admission to medical school, even

though less-qualified minorities had been admitted. Bakke charged that the

university’s quota system violated the Equal Protection Clause. In the Bakke decision, the Court stated, “Preferring members of any one group for no reason

other than race or ethnic origin is discrimination for its own sake. This the Con-

stitution forbids.”

The Equal Pay Act of 1963, the Civil Rights Act of 1964, the Equal Employment Opp ortunity Act of 1972, and Title IX of the Education Amendments of 1972 prohibit discrimination based on race, color, religion, sex, or national origin in employment and education in public and private sect ors at the federal, state, and local levels.

Affi rmative action was created to spread equal opp ortunity throughout the diverse American population.

affirmative action programs created to spread

equal opportunity throughout the

diverse American population

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Chapter 4 Equal Protection under the Law 95

The Court reviewed the medical school’s racial set-aside program that

reserved 16 of 100 seats for members of certain minority groups. The Court’s rul-

ing invalidated the program and reversed the state court’s injunction against any

use of race whatsoever: “The diversity that furthers a compelling state interest

encompasses a far broader array of qualifications and characteristics of which

racial or ethnic origin is but a single though important element.” The following

are notable affirmative action cases ruled on by the Supreme Court since Bakke (Ducat, 2010, pp. 1171–1172):

■ United Steelworkers of America v. Weber (1979)—The Court upheld a collective bargaining agreement that voluntarily aimed at overcoming a company’s

nearly all-White craft workforce by requiring that at least half of the trainees

in an in-plant training program be Black until the proportion of Blacks in the

craft workforce matched the proportion of Blacks in the local workforce. ■ Fullilove v. Klutznick (1980)—Congress’s enactment of a 10 percent quota of

construction contracts to minority businesses was within its authority under

either the Commerce Clause or Section 5 of the Fourteenth Amendment. ■ Firefighters Local Union No. 1784 v. Stotts (1984)—Setting aside least seniority as

a basis for laying off workers and substituting race was something not con-

tained in an existing consent decree and was unjustified unless Black employ-

ees could prove they individually had been victims of discrimination. ■ Wygant v. Jackson Board of Education (1986)—The preferential protection of

minority teachers from layoffs contained in a collective bargaining agreement

was unconstitutional. ■ Local 28, Sheet Metal Workers International Association v. EEOC (1986)—A federal

court order imposing a 29 percent non-White membership goal (reflective of

the proportion of non-Whites in the local workforce) on a union and its

apprenticeship committee for discrimination against non-White workers in

selection, training, and admission of members to union was upheld. ■ United States v. Paradise (1987)—A requirement that 50 percent of promotions

throughout Alabama state troopers were to go to Blacks, if qualified Blacks

were available, was upheld.

In 1996, state universities in both Texas and California struck down race-based

admissions. However, in 2003, in two significant decisions, the Supreme Court

again upheld the use of race as one factor in admissions policies. Gratz v. Bollinger involved the University of Michigan’s undergraduate school, allowing 20 of 100

points for minority status. Citing the Bakke decision, the Supreme Court, in a 6–3 vote, upheld the right of universities to consider race in admission procedures to

achieve a diverse student body. Argued the same day was Grutter v. Bollinger involving the University of Michigan’s law school admission policy, again allowing

race to be considered. Although the vote was closer, 5–4, the policy of allowing race

to be a factor in admissions was upheld: “The Law School’s narrowly tailored use

of race in admissions decisions to further a compelling interest in obtaining the

educational benefits that flow from a diverse student body is not prohibited by the

Equal Protection Clause, Title VI or §1981.”

In these two Michigan cases, the Supreme Court ruled that although affirmative

action was no longer justified as a means of redressing past oppression and

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96 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

injustice, it did promote a “compelling state interest” in diversity at all levels of

society. As Justice Sandra Day O’Connor wrote for the majority, “In order to culti-

vate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that

the path to leadership be visibly open to talented and qualified individuals of every

race and ethnicity” (Grutter v. Bollinger, 2003). Through the decades, this subject has led to intense controversy. Those in favor

of affirmative action say this is a necessary policy to ensure that all citizens have

access to the American dream, the belief that through hard work anyone can have

success and ample material possessions. Proponents also believe it helps bring

equity to an imbalance in society. Opponents of affirmative action argue that such

programs are, themselves, discriminatory.

In March 2013, the Court granted certiorari to Schuette v. Coalition to Defend Affirmative Action, a case that examines whether a state violates the Equal Protec- tion Clause by amending its constitution to prohibit race- and sex-based discrimi-

nation or preferential treatment in public university admissions decisions.

Schuette involves a Michigan law that bans affirmative action in the public college admission process, and the Court is scheduled to hear oral arguments in the fall

of 2013. The Court has, however, decided Fisher v. University of Texas at Austin, a similar affirmative action case challenging whether colleges and universities can

continue to apply admissions policies that extend special preference to minority

applicants. On June 24, 2013, the Court vacated and remanded Fisher, noting that the lower court did not apply strict scrutiny and sending the case back to the

appeals court for further review. The Court’s decision marks a provisional victory

for Abigail Fisher, a White woman who alleged the university discriminated

against her when its race-conscious admissions policy led to her application being

rejected in 2008.

Justice Clarence Thomas, in his concurrence, went further than the majority

opinion in declaring that the school’s admissions program “violates the Equal Pro-

tection Clause because the University has not put forward a compelling interest

that could possibly justify racial discrimination.” Among the several arguments he

put forth against affirmative action in higher education admissions, two of Justice

Thomas’ more interesting arguments were (1) that it is racial discrimination to use

race as a factor in higher education admissions and (2) that these programs actually

hurt the minority student. Acknowledging that the policy hurts White and Asian

applicants by denying them admission, Justice Thomas added that the Black and

Hispanic students admitted under the program are harmed even more because

they are “far less prepared” than White and Asian students who are admitted. Cit-

ing evidence in the scores and GPAs of the students, Justice Thomas notes that the

less-prepared students are unable to make up the difference during their time at the

school, keeping them in the lower levels of student performance.

A major philosophical point Justice Thomas made was that the university’s

policy labels Blacks and Hispanics as inferior. It labels these students as being admit-

ted based on their race, not on their ability. Furthermore, it labels every student this

way because it is impossible to tell apart the student admitted on academic merit

(e.g., GPA, SAT scores) and the one admitted as a result of “racial discrimination.”

He writes, “When blacks [and hispanics] take positions in the highest places of gov-

ernment, industry, or academia, it is an open question . . . whether their skin color

played a part in their advancement.” That very question is “the stigma—because

American dream the belief that through hard work anyone

can have success and ample

material possessions

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Chapter 4 Equal Protection under the Law 97

either racial discrimination did play a role, in which case the person may be deemed

‘otherwise unqualified,’ or it did not, in which case asking the question itself

unfairly marks those . . . who would succeed without discrimination.”

Reverse Discrimination

Critics of affirmative action policies have contended that civil rights laws cannot

remedy the effects of past discrimination. They assert that such policies lead to

reverse discrimination because women or racial minorities are to be hired over

White males who may be better qualified. Reverse discrimination consists of giv-

ing preferential treatment in hiring and promoting women and minorities to the

detriment of White males.

The question then becomes whether admission to a college on the basis of diver-

sity is simply a nice way of saying the college is going to consider race. Something

must guide the decisions of those who determine who will be hired, fired, or admit-

ted to the college of their choice. Hess and Orthmann (2012, p. 488) note, “This issue

[reverse discrimination] has separated Whites from minorities, men from women,

and the advocates of affirmative action from those who believe in a strict ‘merit’

principle for employment and advancement. . . . A growing number of majority

member workers are complaining bitterly about their own civil rights being

abridged, and some are filing reverse discrimination suits in court.”

The majority position has been summarized as a concern that for every deserv-

ing minority group member provided a job or promotion through preferential

quotas, a deserving and often more qualified nonminority person is thereby

deprived of a job or promotion. The courts themselves have been deeply divided

over the constitutionality of the reverse discrimination that some believe is implicit

in minority quotas and double standards.

Ricci v. Destefano (2009) involved the practice of the city of New Haven, Con- necticut, of using objective exams to identify firefighters best qualified for promo-

tion to lieutenant and captain positions. When the results of the exam showed that

White candidates had outperformed minority candidates, New Haven became

embroiled in public debate. Black firefighters threatened lawsuits if the exam results

were certified, and White and Hispanic firefighters threatened to sue if the results

were not certified; so the city scrapped the results, a clearly race-based decision

(Means and McDonald, 2009). The failure of the city to certify the results lead to a

lawsuit by petitioners, White and Hispanic, who passed the exams but were denied

a chance at promotions. They claimed discarding the test results discriminated

against them based on their race in violation of Title VII of the Civil Rights Act. The

defendants responded that had they certified the test results they could face Title

VII liability for using a test that had a disparate impact on minority firefighters.

The district court granted summary judgment for the defendants, and the Sec-

ond Circuit affirmed. A motion for summary judgment is a request to the court to

review the evidence and, without a trial, reach a decision to dismiss a case against

the movant (the party making the request) because there is no dispute of material

fact that a jury need resolve and because there is legally insufficient evidence to

support a verdict in favor of the nonmovant (Scarry, 2008). The Supreme Court,

however, reversed and remanded the case, holding that the city’s action in discard-

ing the tests violated Title VII.

reverse discrimination giving preferential treatment in

hiring and promoting to women

and minorities to the detriment of

White males

summary judgment a request to the court to review

the evidence and, without a trial,

reach a decision to dismiss a

case against the movant because

there is no dispute of material

fact that a jury need resolve

movant a party making a motion to the court

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98 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin (disparate treatment) as well as policies or

practices that are not intended to discriminate but, in fact, have a disproportion-

ately negative effect on minorities (disparate impact).

Writing for the 5–4 majority, Justice Anthony Kennedy said, “Fear of litigation

alone cannot justify an employer’s reliance on race to the detriment of individuals

who passed the examinations and qualified for promotions.” In dissent, Justice

David Souter said a ruling against the city could leave employers in a “damned-if-

you-do, damned-if-you-don’t situation.”

The case drew national attention because Justice Sonia Sotomayor had been a

judge on the appellate court that affirmed the city’s decision. Means and McDonald

(2009, p. 21) point out: “Disparate treatment is relatively easy to recognize, and

employers usually manage to avoid it. Ironically, it is this type of discrimination

that New Haven ultimately committed in this case.”

The Civil Rights Act, the Fair Housing Act, the Voting Rights Act, as well as other

legislation and numerous court decisions have, on paper, outlawed discrimination

in this nation. However, generations of attitudes cannot be so easily changed, but

because laws reflect desired social norms, movement toward equality continues.

Racial and Gender Equality in the Twenty-First Century

Understanding this nation’s history helps explain why affirmative action pro-

grams first developed. In the 1990s, however, such programs found themselves

increasingly challenged as unconstitutional. Today, the tide may again be slowly

turning as a new Supreme Court bench emerges, with older justices retiring and

new ones being appointed. Although some more recent decisions by the Court

have supported affirmative action programs, others are holding them more

accountable than in the past. In Adarand Constructors v. Pena (1995), an affirmative action program was upheld by only a narrow 5–4 vote. Both Justices Antonin

Scalia and Clarence Thomas stated they were against affirmative action. The

more recent appointments to the Court will undoubtedly take this issue one

direction or the other, although public sentiment seems to be turning against the

concept. For example, the California Civil Rights Initiative (CCRI) forbidding the

government to use ethnicity or gender as a criterion for either discriminating

against or giving preferential treatment to any individual or group passed unani-

mously. In 1996, California voters banned affirmative action, as did the Univer-

sity of Texas.

Should affirmative action programs, even though they do treat some differently,

continue? Only the results of future challenges will tell, but Justice O’Connor’s

statement in Adarand Constructors best states the Court’s position now: “The unhappy persistence of both the practice and the lingering effects of racial discrimi-

nation against minority groups in this country is an unfortunate reality, and gov-

ernment is not disqualified from acting in response to it.”

Other Forms of Discrimination

Religious discrimination has been addressed through various cases, including Anso- nia Board of Education v. Philbrook (1986).

disparate treatment intentional acts of employment

discrimination based on race,

color, religion, sex, and

national origin

disparate impact policies or practices that are not intended

to discriminate but, in fact, have

a disproportionately negative

effect on minorities

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Chapter 4 Equal Protection under the Law 99

Discrimination against people with disabilities affects criminal justice in a number of ways, including who is hired (or not) and how the system treats those with dis-

abilities. Most efforts to respond to issues of the disabled have come through legis-

lation. Congress has responded with Title V of the Rehabilitation Act of 1973 and

the Americans with Disabilities Act of 1990, both of which seek to remove barriers

encountered by those living with disabilities.

Criminal justice agencies have responded to legislation by improving accessi-

bility, such as by installing wheelchair ramps, wider doors, and height-appropriate

counters, as well as accommodations for the vision and hearing impaired. As crimi-

nal justice agencies seek to have their personnel be more reflective of the communi-

ties they serve, they have opened opportunities for employment to those with

disabilities. Not everyone has the physical attributes needed to be, for example, a

police officer. But those with disabilities can fill many other positions. All that is

needed is a respect for the law requiring reasonable accommodations for those

with disabilities. In many ways the criminal justice system has been more accom-

modating to those being arrested than to those who want to be a part of the crimi-

nal justice team.

Discrimination because of sexual orientation is a challenge for the criminal jus- tice system regarding equal protection issues for victims, as well as how gay or

lesbian criminal justice professionals are treated by their own agencies. The

approach historically used by the American military was a “don’t ask/don’t tell”

policy: Service people were not asked and did not have to tell, but they were dis-

charged if their homosexuality was made public. This policy was held unconstitu-

tional by a U.S. district court, and in September 2011 the policy was officially

repealed. However, the criminal justice system has no such policy. Rather, those

serving in this field are subject to the same laws pertaining to same-sex relation-

ships but may also find themselves subject to the same discrimination as those who

become victims of bias crimes.

Sexual-orientation discrimination and same-sex marriage are issues that con-

tinue to garner attention on legislative floors and courtrooms, with changes occur-

ring on both fronts so rapidly that attempts to provide current law finds itself

almost immediately outdated. Two such cases were recently argued before the

Supreme Court, with decisions on both handed down on the same day. Holling- sworth v. Perry (2013) involved challenges to the constitutionality of California’s Proposition 8, an amendment to that state’s constitution, voted on and passed by

popular vote. Proposition 8 stipulated, “Only marriage between a man and a

woman is valid or recognized in California.” However, the state still allowed

“domestic partnerships” that gave same-sex couples the same rights and responsi-

bilities as a heterosexual marriage.

The case began when two same-sex couples challenged Proposition 8 as uncon-

stitutionally violating the Equal Protection Clause by defining marriage so as to

exclude a certain class of people. When the state declined to defend the law in court,

proponents of Proposition 8 stepped up instead. It was this issue of standing that captured the Court’s attention—whether those who were defending the law in

court had a legal right to do so (recall the discussion on standing in Chapter 2). On

June 26, 2013, in a 5–4 decision, the Court vacated and remanded, with Chief Justice

John Roberts stating, “We have never before upheld the standing of a private party

to defend a state statute when state officials have chosen not to.” Because the

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100 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

petitioners (those who were defending Proposition 8) had no legal standing—they

were unable to demonstrate invasion or harm of a personal legal interest or that the

outcome of the controversy would result in direct personal injury—the intermedi-

ate appellate court did not have standing to hear the case either, and their decision

held no legal force. The Court’s ruling, therefore, sent the case all the way back to

the district court where the original decision that ruled Proposition 8 as unconstitu-

tional stands, and where the injunction also stands.

Also decided on June 26, 2013, with similar results, was United States v. Windsor (2013), the Defense of Marriage Act (DOMA) case. DOMA was passed in 1996 and

defined marriage as the union of one man and one woman for the purposes of fed-

eral law. However, in a 5–4 decision, the Court held that DOMA unconstitutionally

discriminates against same-sex couples who are legally married according to the

laws of the state in which they reside. Recognizing that the authority to regulate

and define marriage rests with the individual states, and noting that the respondent

in this case held legal married status in a state that allowed same-sex couples to

marry, the Court ruled that DOMA violates basic due process and equal protection

principles and that same-sex couples who are legally married must be treated the

same under federal law as married opposite-sex couples.

Laws pertaining to immigration and residency discrimination are also currently in the throes of debate and change.

The Immigration Issue

“Give me your tired, your poor, Your huddled masses yearning to breathe free, The

wretched refuse of your teeming shore, Send these, the homeless, tempest-tost to

me, I lift my lamp beside the golden door!” are the immortal words of poet Emma

Lazarus that appear at the base of the Statue of Liberty in New York. These words

once reflected a welcoming philosophy of a country developed largely by

immigrants.

Today, immigration issues challenge our past beliefs and some would say the

future of the United States. By January 2009, an estimated 10.8 million illegal immi-

grants resided in the United States, and they have become an increasing focus of

controversy (Christie, 2010). The economy, possibly racism, and the September 11,

2001, attack on the United States, carried out by hijackers who entered the country

on student or tourist visas, contribute to the changing political climate. Americans

recognized the porous borders and lax enforcement of immigration laws as security

threats, and in Congress, both parties have pushed for a tougher line.

In April 2006, hundreds of thousands of pro-immigration demonstrators mobi-

lized on National Mall in Washington, DC, and in scores of cities across the country

in a powerful display of grassroots muscle-flexing that organizers described as a

“watershed moment,” marking a coming-of-age for Latino political power in the

United States. Statements from demonstrators included these: “We decided not to

be invisible anymore,” and “We deserve to be here. We work hard. We are immi-

grants, but we are not terrorists.”

Courts have faced increasing struggles with constitutional interpretation. The

Fifth and Fourteenth Amendments do not just protect citizens but use the broader term persons. The Supreme Court has stressed the text of the Fourteenth Amend- ment in striking down a number of state laws that differentiate between residents

and nonresidents or between citizens and aliens.

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Chapter 4 Equal Protection under the Law 101

The Supreme Court has held that whether people are considered legal or other-

wise, government does not have a legitimate interest in denying certain services.

Laws requiring a one-year waiting period before new legal residents could receive

welfare benefits were struck down in Shapiro v. Thompson (1969). In Plyler v. Doe (1982), the Court held that a Texas law denying public education to children of

illegal immigrants was unconstitutional. And in Sugarman v. McDougall (1973) and Hampton v. Mow Sun Wong (1976), the Court held that state and federal laws pre- venting aliens from being given civil service jobs were illegal.

Beginning around 2007, state legislatures increasingly began passing laws to deal

with immigration. Resentment began rising over the increasing problem of illegal

immigration and by the stalling of a broad immigration bill in the Senate in June

2007. That bill, the End Racial Profiling Act (ERPA) of 2007, was referred to commit-

tee in December 2007 and has remained there without any action. Nationwide, legis-

latures adopted measures to curb employment of unauthorized immigrants and to

make it more difficult for them to obtain state identification documents such as

driver’s licenses. In October 2007, the Police Executive Research Forum (PERF) sur-

veyed its members and, based on the concern shown over the immigration issue,

conducted an “immigration summit” in November 2007, the results of which are

published in Police Chiefs and Sheriffs Speak Out on Local Immigration Enforcement (2008). Of those surveyed, 51 percent reported that the immigrant population in their

jurisdiction had increased “substantially,” by more than 10 percent (p. 8). Despite this

growth, 71 percent of respondents said their jurisdiction did not have any policy, law,

or mandate concerning enforcing immigration laws by local law enforcement (p. 11).

The immigration issue is not one of those issues that remained hidden and then

surfaced suddenly and unexpectedly. The immigration issue is a freight train

that has been barreling down the tracks toward us for some time, whistle blar-

ing. Here’s one example of what I mean by that: For more than a year, anyone

who has been attending PERF’s Town Hall Meetings, where police chiefs and

other leaders are invited to speak out on any issue they choose, cannot help but

have noticed that the immigration issue spontaneously becomes the hot-button

issue whenever there is an open forum of police leaders. . . .

Some chiefs do not believe that local law enforcement agencies should spend

much of their limited resources to take on what has essentially been the federal

responsibility for illegal immigration enforcement in our communities. And many

are concerned that tougher immigration enforcement on the local level will

threaten the advances we have made in community policing over the last 20 years.

Some chiefs and sheriffs point to facts and figures indicating that illegal

immigrants commit a sizeable portion of their local crimes, and these police

executives think they have no choice but to work as closely as they can with

federal authorities to arrest, prosecute, incarcerate and eventually deport these

offenders. For these chiefs, immigration enforcement is primarily a matter of

local crime control and public safety. (Wexler, 2008, p. iii)

The most recent Gallup Poll (June 16, 2010) reports broad public support for

dealing with the illegal immigration problem, as reported in the Sourcebook of Crimi- nal Justice Statistics Online (2013). The poll asked, “Thinking about the situation in the U.S. today, how concerned are you about the effects of illegal immigrants?”

Response options were “very concerned,” “somewhat concerned,” “not too con-

cerned,” and “not at all concerned” (see Table 4.1).

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102 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

The Gallup Poll also asked, “How important is it to you that the government

takes steps this year to deal with selected immigration policies,” with choices being

“extremely important,” “very important,” “moderately important,” and “not that

important” (Table 4.2).

Although the public clearly has concerns about illegal immigration and wants

the “government” to control the borders and deal with the millions of illegal immi-

grants, the question becomes How? Several challenges face law enforcement agencies in jurisdictions with large

immigrant populations, including

■ Large numbers of people who do not speak English well (or at all). ■ Immigrants’ reluctance to report crime. ■ Fear of police. ■ Effects of federal law enforcement actions. ■ Confusion over whether and to what extent local police enforce

immigration laws. ■ Misunderstandings based on cultural differences. ■ Personal interaction between immigrants and police officers that damage good

will and trust (Lysakowski et al., 2009, p. 3).

To meet these challenges, Congress authorized the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, which amended the Immigration and

Nationality Act by adding section 287(g).

Table 4.1 Public Concern about the Effects of Illegal Immigrants (United States, 2010)

Question: Thinking about the situation in

the U.S. today, how concerned are you

about the effects of illegal immigrants? Very Concerned

Somewhat

Concerned

Not Too

Concerned

Not at all

Concerned

Illegal immigrants might be putting an unfair

burden on U.S. schools, hospitals and

government services. 61% 23% 9% 5%

Allowing illegal immigrant to stay in the U.S.

might be encouraging others to immigrate. 55% 25% 13% 6%

Illegal immigrants making low wages might

make U.S. employers less willing to pay

American workers. 53% 24% 15% 7%

Source: Sourcebook of Criminal Justice Statistics Online (2013), (Table 2.0028.2010).

Table 4.2 Public Opinion about the Need for Government to Deal with Certain

Immigration Policies (United States, 2011)

Question: How important is it to you that the

government takes steps this year to deal

with selected immigration policies?

Extremely

Important

Very

Important

Moderately

Important

Not that

Important

Controlling U.S. borders to halt the flow of illegal

immigrants into the U.S. 53% 29% 12% 7%

Developing a plan to deal with the large numbers

of illegal immigrants who are already living in

the U.S. 43% 38% 13% 5%

Source: Sourcebook of Criminal Justice Statistics Online (2013), (Table 2.0026.2011).

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Chapter 4 Equal Protection under the Law 103

287(g) Section 287(g) was intended to strengthen immigration enforcement

efforts by allowing local law enforcement agencies to partner with the Department

of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE)

through Memorandums of Agreement (MOAs) authorizing local police to function

as immigration officers. The program grew quickly, and by February 2009, 950 law

enforcement officers in 23 states had been trained by U.S. ICE agents. The program,

however, was widely criticized by civil liberties groups, Hispanic citizens, and con-

gressional auditors with claims that the program promoted racial profiling (“Gov-

ernment’s 287(g) Program Criticized in Hearings in House,” 2009, pp. 5–7).

Despite efforts to quell critics by standardizing MOA used to enter into 287(g)

partnerships, persistent reports of police and ICE noncompliance gradually led to

the scaling back and reevaluation of the program. At the end of 2012, ICE announced

it would not be renewing any of its agreements with state and local law enforce-

ment agencies operating under the 287(g) program. Instead, it would be placing

new focus on its Secure Communities initiative.

Secure Communities Secure Communities is a tool that uses an already estab-

lished federal information-sharing partnership between ICE and the FBI to identify

“removable aliens” or immigration violators who have been arrested and booked

for a criminal offense:

For decades, local jurisdictions have shared fingerprints of individuals who are

arrested or booked into custody with the FBI to determine if they have a criminal

record. Under Secure Communities, the FBI, as mandated by statute, automati-

cally sends these fingerprints to DHS to check against its immigration databases.

If these checks reveal that an individual may be unlawfully present in the United

States or otherwise removable due to a criminal conviction, ICE determines

what, if any, enforcement action to take—prioritizing the removal of those indi-

viduals who present the most significant threats to public safety as determined

by the severity of their crime, their criminal history, and other factors, as well as

those who have repeatedly violated immigration laws.

Secure Communities imposes no new or additional requirements on state

and local law enforcement. The federal government, not the state or local law

enforcement agency, determines what immigration enforcement action, if any, is

appropriate (“Frequently Asked Questions,” no date).

A recent assessment of the program notes its success: “Secure Communities has

facilitated ICE’s ability to identify and remove criminal aliens. Between October

2008 and the end of fiscal year 2011, the number of convicted criminals that ICE

removed from the United States increased 89 percent, while the number of other

aliens removed dropped by 29 percent. These trends are due in significant part to

the implementation and expansion of Secure Communities” (Protecting the Homeland, 2012, p. 18).

Some communities and states, however, have felt that the federal government

was not doing all they could, and should, to tackle the problem of illegal immigra-

tion. This tension came to a head in April 2010, when Arizona passed a law crimi-

nalizing illegal immigration.

The 2010 Arizona Immigration Law The law, Arizona S.B. 1070, makes Arizona

the first state to criminalize illegal immigration by defining it as trespassing, spelling

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104 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

out that police may not “solely consider race, color, or national origin” in questioning

people about their immigration status (Markon and Kornblut, 2010, p. A03). The law

requires officers, while enforcing other laws, to check a person’s immigration status if

there’s a reasonable suspicion that the person is here illegally. It also bans people from

blocking traffic when they seek or offer day-labor services on streets and prohibits

illegal immigrants from soliciting work in public places.

Since Governor Jan Brewer signed the measure into law, it has set off rallies in

Arizona and elsewhere by advocates on both sides of the immigration debate. Some

opponents have advocated a tourism boycott of Arizona. President Barack Obama

and Attorney General Eric Holder have “blasted” the legislation, with Obama say-

ing that it “threatened to undermine basic notions of fairness” (Markon and Korn-

blut, 2010, p. A03). Civil rights groups argued that the legislation would promote

racial profiling (discussed later in the chapter).

In May 2010, PoliceOne carried an article reporting, “Arizona’s tough new law cracking down on illegal immigration is dividing police across the nation, pitting

officers against their chiefs and raising questions about its potential to damage

efforts to fight crime in Hispanic communities” (Cooper, 2010). Within days, nearly

100 PoliceOne members had commented, with the “overwhelming majority” (92.5 percent) of the comments enthusiastically supporting the Arizona law (Wyllie,

2010). However, almost 98 percent did not live in a state that borders Mexico

(“Police Readers Overwhelmingly Support,” 2010, p. 14). The Pew Research Center also reports, “The public broadly supports a new

Arizona law aimed at dealing with illegal immigration. Fully 73 percent say they

approve of requiring people to produce documents verifying their legal

status if police ask for them” (“Broad Approval for New Arizona Immigration

Law,” 2010).

Although the broken-window theory is now one of the “gospels” of law enforce-

ment administrators nationwide, many chiefs disavow the policy when it comes to

immigration violations. Although living in the United States illegally is a crime,

albeit not a serious one, it is a federal misdemeanor nonetheless: “Once you break

the law long enough with impunity, the law quickly becomes irrelevant” (Griffith,

2010, p. 10).

Despite the seemingly widespread public support for the controversial legis-

lation, in July 2010 the U.S. Justice Department filed a lawsuit challenging the

constitutionality of Arizona’s new law. Such a lawsuit had been hinted at since

May 2010, when Holder told ABC’s This Week program he was concerned that “you’ll end up in a situation where people are racially profiled, and that could

lead to a wedge drawn between certain communities and law enforcement,

which leads to the problem of people in those communities not willing to

interact with people in law enforcement, not willing to share information, not

willing to be witnesses where law enforcement needs them” (“Holder: Feds May

Sue,” 2010).

The key difference between the federal law and the Arizona law is that the

federal government wants to focus on the most dangerous immigrants: gang

members, drug traffickers, and threats to national security, leaving alone those

law-abiding immigrants without documentation (Christie, 2010). What started as

a civil rights issue has become an issue of federal versus states’ rights, with the

lawsuit contending: “In our constitutional system, the federal government has

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Chapter 4 Equal Protection under the Law 105

preeminent authority to regulate immigration matters. This authority derives

from the U.S. Constitution and numerous acts of Congress.” Thus, at the heart of

the matter is the concept of preemption, meaning if a state law stands as an

obstacle to the purposes, objectives, and execution of the federal law, the

Supremacy Clause preempts the state law. This may occur even if the state law is generally compatible with federal law. Although it is generally presumed that

Congress, acting through federal law, does not intend to interfere with the police

powers of a state, under the Supremacy Clause, the Court said in Gibbons v. Ogden (1824) that laws made by Congress under the Constitution are superior to state laws that conflict or interfere with the act. Consequently, as specifically

noted in the lawsuit (see www.justice.gov/opa/documents/az-complaint.pdf,

2010, pp. 23–24), the federal government has based its suit against Arizona on

(1) violation of the Supremacy Clause, (2) preemption under federal law, and

(3) violation of the Commerce Clause.

The Arizona law was challenged by the federal government as unconstitutional

on the theory that the state was intruding on the federal government’s superior

power to enforce federal immigration laws, and this is the basis for the Court’s deci-

sion. On June 25, 2012, the Court voted 5–3 (Kagan recused) in Arizona v. United States to invalidate three of the four provisions of S.B. 1070 because they either operated in areas solely controlled by federal policy or they interfered with federal

enforcement efforts. Invalidated were the sections:

■ making it a crime to be in Arizona without legal papers, ■ making it a crime to apply for or get a job in the state, ■ allowing police to arrest individuals who had committed crimes that could

lead to their deportation.

The Court left intact, but subject to later challenges in lower courts, a provision

requiring police to arrest and hold anyone they believe has committed a crime and

whom they think is in the country illegally and to hold them until their immigra-

tion status could be checked with federal officials.

Courts have repeatedly upheld that the regulation of immigration and related

enforcement responsibilities are federal matters (Dwyer, 2010). Guidance on this

issue is provided by two U.S. Supreme Court decisions. In United States v. Brignoni- Ponce (1975) the Court ruled that police officers must have probable cause to arrest individuals for immigration enforcement purposes, and in De Canas v. Bica (1976) the Court held that any local statute directed at regulating immigration is a viola-

tion of the Supremacy Clause: “State involvement in this area, except as specifically

allowed under federal law (such as 287g programs) is preempted by the supremacy

clause to the U.S. Constitution. The crux of the judge’s decision rests on the burden

the law would place on legal resident aliens who may be unconstitutionally held as a result of this law” (Dwyer, 2010).

Attitudes change, and so does the law. Where barriers once did not exist, lines

have been drawn. As the Court and all of society struggle with how to combine the

richness that immigration has contributed to the United States with challenges

brought on by changes over the past two centuries, the future cannot help but

reflect our past. And this past reflects, in the words of the Pledge of Allegiance,

“one nation . . . with liberty and justice for all.” As this text goes to press, the contro- versy continues.

preemption federal law supersedes state law; if a state

law stands as an obstacle to the

purposes, objectives, and

execution of the federal law, the

Supremacy Clause preempts

the state law

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106 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Equal Protection in the Criminal Justice System When examining the question of whether there is discrimination in the criminal

justice system, it is important to distinguish discrimination from disparity:

“ Disparity refers to a difference, but one that does not necessarily involve dis-

crimination” (Walker et al., 2012, p. 26). Differences leading to disparity can be

explained by legal factors related to an individual’s actions, including the serious- ness of the offence, aggravating or mitigating circumstances, or prior criminal

record. Extralegal factors include race, ethnicity, gender, social class, and lifestyle, factors that are not legitimate bases for decisions by criminal justice officials because these factors do not relate to a person’s criminal behavior. Using any of

these extralegal factors as the basis for action results in discrimination, “differential treatment of groups without reference to an individual’s behavior or qualifica-

tions” (Walker et al., 2012, p. 27). The degree and prevalence of discriminatory

treatment within the criminal justice system can be thought of as existing along a

continuum between the extremes of pure justice and systematic discrimination, as

illustrated in Figure 4.2.

At one extreme is pure justice, describing treatment in which no degree of racial

or ethnic discrimination occurs at any point or time in the criminal justice process.

At the other extreme is systematic discrimination, in which discrimination is perva-

sive in every aspect of the criminal justice system. Walker et al. (2012, p. 274) sug-

gest that, based on a review of research, the U.S. criminal justice system falls in the

middle on the continuum, characterized by contextual discrimination, that is,

discrimination that occurs in certain parts of the justice system but not necessarily

all parts all the time: “Discrimination . . . is confined to certain types of cases, certain

types of settings, and certain types of defendants.” Whatever it is called, the fact

remains that minorities are disproportionately represented in all three components

of the criminal justice system: number of arrests by law enforcement, number of

minorities going to court, and number of minorities incarcerated.

Of increasing concern is the disproportionate minority contact (DMC) with

minority youths in the juvenile justice system. The Juvenile Justice and Delin-

quency Prevention Act of 2002 provides that if a state fails to address the overrep-

resentation of minority youths in the juvenile justice system, the Office of Juvenile

Justice and Delinquency Prevention (OJJDP) may withhold 20 percent of the state’s

formula grant allocation for the following year and expanded the requirement to

include disproportionally at all points in the juvenile justice system (Solar and

Garry, 2009, p. 1).

disparity a difference, but one that does not necessarily involve

discrimination

contextual discrimination describes a situation in which

racial minorities are treated more

harshly at some points and in

some places in the criminal

justice system but no differently

than whites at other points and in

other places

Pure justice

Systematic discrimination

Institutionalized discrimination

Contextual discrimination

Individual acts of discrimination

Figure 4.2 Discrimination Disparity Continuum

Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions.

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Chapter 4 Equal Protection under the Law 107

Discrimination in Law Enforcement

Considering the wide amount of discretion granted to police officers, it follows that

those in law enforcement may be accused of discrimination, whether on the basis

of age, gender, or race. Hess et al. (2014, p. 25) note, “Discretion lets officers treat

different people differently. This may be seen as discrimination and, in fact, some-

times is. Some officers are harder on minorities, men, or juveniles. This may be

conscious or unconscious discrimination, but it does make for inconsistent enforce-

ment of the laws.”

The most frequently alleged form of discrimination by the police is racial dis-

crimination. Some argue that minority overrepresentation in the criminal justice

system begins with law enforcement and the discriminatory attitudes and practices

some officers apply toward members of racial and ethnic groups. In fact, officers

themselves admit that a citizen’s race and socioeconomic status can lead to unequal

treatment and even unwarranted physical force by the police. The contention that

police single out subjects solely on the basis of the color of their skin frequently

leads to allegations of racial profiling. Racial profiling can be defined as the prac-

tice of relying “to any degree on race, ethnicity, national origin, or religion in select-

ing which individual to subject to routine or spontaneous investigatory activities or

in deciding upon the scope and substance of law enforcement activity following the

investigatory procedure” (“Racial Profiling Prohibition Will Be Debated in Con-

gress,” 2007, p. 3).

Such an event may be called “DWB” (driving while Black), “DWA” (driving

while Asian), or “DWM” (driving while Mexican). Regardless of the acronym used,

the event signals the unethical and illegal practice of racial profiling.

The exact prevalence of the problem remains unclear because research findings

thus far lack consensus on the extensiveness of discrimination in police stops,

searches, and arrests. To help present a more complete picture, many agencies now

require the collection of additional racial data about drivers and passengers

involved in traffic stops.

Several research studies on what appears to be racial profiling have possible

explanations for its existence other than discrimination. Roh and Robinson (2009,

p. 137) studied traffic stops at both the macrolevel (whole department) and micro-

level (individual officers) and found that both levels confirmed racial disparity in the frequency of traffic stops as well as the police treatment. The likelihood of being

subjected to unfavorable police treatment was greater in beats where more Blacks

or Hispanics resided or more police were deployed (Roh and Robinson, 2009). The

spatial analysis at the macrolevel found that the areas with more frequent stops and

more adverse stop outcomes were spatially clustered rather than dispersed, and the

majority of the clusters spatially coincided with minority residential areas or police

resource concentration areas, likely the result of policing “hot spots” (Roh and Rob-

inson, 2009, p. 163).

Lundman and Kowalski (2009, p. 504) used data from a New Jersey Turnpike

Speeding Survey, which reported that Black drivers, young drivers, and male driv-

ers were all more likely to speed at high rates (15 mph or more above the speed

limit) in 65 mph speed zones than were non-Black drivers, older drivers, and

female drivers. Lundman and Kowalski (2009, p. 504) suggest, “More research is

racial profiling the process of using certain racial

characteristics, such as skin

color, as indicators of criminal

activity

The Equal Prot ect ion Clause of the Fourteenth Amendment to the Constitution app lies to racial profi ling. Race- based enforcement of the law is illegal.

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108 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

needed to determine whether traffic stops for Driving While Black are in small part

the result of Speeding While Black.”

Many criminal justice professionals suggest that a distinction should be made

between profiling as a legitimate policing technique and the politically charged

term racial profiling. Refer to racially biased policing instead. It is possible criminal justice practitioners may encounter allegations of other

forms of discrimination as well, sometimes even personally. The Court dealt with

age discrimination in Massachusetts Board of Retirement v. Murgia (1976) by upholding a state law that prohibited uniformed police officers from working beyond the age

of 50. The Americans with Disabilities Act of 1990, along with other legislation and

case law, seeks to address disabilities discrimination. A developing area of discrimination law affecting police officers deals with

pregnancy policies. Acknowledging the importance of recruiting and retaining

women to serve in law enforcement, policies are needed that support families and

parenting without negatively affecting police operations (Kruger, 2006). The Federal

It was 2 a.m. and Officers Baylor and Breen were

on patrol in an area of town where the resident

population was predominantly African American.

They drove past a parked car occupied by a White

male driver and a Black female passenger, and

Officer Baylor mumbled, “That guy doesn’t belong

here.” However, being White in a Black neighbor-

hood is not illegal and certainly is not enough to

warrant any immediate action. So the officers

decided they would simply stop and observe for a

few minutes.

As the officers were turning their squad around,

the passenger in the parked car got out and walked

away from the vehicle. The driver pulled the car

away from the curb but did not turn his headlights

on. The officers followed. The driver continued for

several blocks before turning on the headlights.

The officers decided to make a traffic stop on

the car and driver to see what he was doing in that

neighborhood, so they drove up close behind the

car and activated their emergency lights. The

driver pulled over and parked at the curb.

Officer Breen approached the driver, who

immediately blurted out, “You are just stopping me

’cuz I am White!” During that brief moment, Officer

Breen recognized a strong odor of marijuana. The

driver was later arrested after several kilograms of

marijuana were found under the backseat.

The driver later tried to suppress the evidence,

claiming there was no reason for the traffic stop

other than his race, a claim supported by the fact

that the squad camera recorded Officer Baylor’s

previous statement. The camera also, however,

recorded the fact that the driver went several

blocks without his headlights on.

■ In your opinion, is the traffic stop constitutional? Why?

■ What are the objective facts in this scenario?

■ Should objective facts be given more weight than subjective facts?

(The legality of traffic stops will be covered in

detail in Chapter 8. Keep this scenario in mind.)

Constitutional Law in ACTION

MYTH Race can never be considered by

law enforcement when deciding

on a course of action.

REALITY Race is a legitimate and easy way

to include or eliminate a person

as a suspect quickly. It is a useful

tool and exists as one descriptive

factor among many, but it may

never be used as the sole basis

for a police encounter.

e n

g a

g e

L e

a rn

in g

2 0

1 5

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Chapter 4 Equal Protection under the Law 109

Pregnancy Discrimination Act of 1978 and a series of developing court holdings are

cited as sources for this developing area of law.

Discrimination in the Courts

Discrimination also exists in some courts. Even before a defendant appears for trial,

discrimination in the jury selection process may negatively affect the outcome of

the case.

After the Civil War ended, the Equal Protection Clause of the Fourteenth

Amendment was used as a legal tool to abolish statutes excluding African Ameri-

cans from jury selection. In 1880, the Supreme Court cited the Equal Protection

Clause in Strauder v. West Virginia (1879) when it struck down a statute explicitly prohibiting African Americans from serving on juries. To get around such rulings

and continue excluding racial minorities from jury duty, some states passed new

laws requiring all jury members to be landholders or pay real estate taxes. Although

such laws appeared race and gender neutral and not overtly discriminating, only

White males actually met these criteria.

Not until 1935, in Norris v. Alabama, did the Court acknowledge that virtual exclusion of African Americans from juries constituted an equal protection viola-

tion. Nonetheless, little effort was made to correct the discrepancies, and African

Americans remained noticeably underrepresented on juries, particularly in the

South. Even during the civil rights revolution of the 1950s and 1960s, the Supreme

Court did not extend its desegregation rulings to the subject of juries. Consequently,

in Swain v. Alabama (1965), the Court found no equal protection violations in a county where 26 percent of eligible voters were Black, yet only 10 to 15 percent of

the jury panels were Black. The Court denied that such a statistical pattern pre-

cluded a fair jury-selection process, stating, “Neither the jury roll nor the venire

need be a perfect mirror of the community or accurately reflect the proportionate

strength of every identifiable group.”

The Court, however, reversed its position in Batson v. Kentucky (1986), when it ruled the use of peremptory challenges to deliberately produce a racially unbal-

anced jury was unconstitutional. In Batson, the defendant was African American, and the prosecutor in the first trial used the state’s peremptory challenges to

remove all four prospective Black jurors, leaving an all-White jury that ultimately

convicted Batson. The conviction was upheld by the Kentucky Supreme Court, but

the U.S. Supreme Court overturned the lower courts’ rulings:

The State’s privilege to strike individual jurors through peremptory challenges

is subject to the command of the Equal Protection Clause. Although a prosecutor

ordinarily is entitled to exercise peremptory challenges “for any reason at all, as

long as that reason is related to his view concerning the outcome” of the case to

be tried. . . . The Equal Protection Clause forbids the prosecutor to challenge

potential jurors solely on account of their race or on the assumption that Black

jurors as a group will be unable impartially to consider the State’s case against a

Black defendant.

The Court extended the Batson ruling in J.E.B. v. Alabama (1994), when it held that gender, as with race, could not be used as a proxy for juror competence. In

this case, the state of Alabama, on behalf of a minor child’s mother, filed a

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110 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

complaint for paternity and child support. A jury pool of 36 potential jurors was

assembled—12 males and 24 females. Two jurors were removed for cause, and

peremptory challenges used by both sides removed 18 more. The result was an

all-female jury, who found the petitioner to be the child’s father. The father

appealed. The Supreme Court upheld the petitioner ’s challenge, stating, “Equal

opportunity to participate in the fair administration of justice is fundamental to

our democratic system. It not only furthers the goals of the jury system. It reaf-

firms the promise of equality under the law—that all citizens, regardless of race,

ethnicity, or gender, have the chance to take part directly in our democracy.

When persons are excluded from participation in our democratic processes

solely because of race or gender, this promise of equality dims, and the integrity

of our judicial system is jeopardized.”

Just as discrimination can affect court proceedings before a trial, it can also

affect the stage after trial—sentencing. Prosecutorial discretion may also contribute

to sentencing disparity. A common tactic used by prosecutors to secure a guilty plea

is to offer the defendant a lesser charge. Consequently, the sentence received is

based on the charges brought, not necessarily on the act committed.

It should come as no surprise then that great variation exists among the sen-

tences received by offenders convicted of the same offense. In an effort to standard-

ize sentencing and eliminate disparity, many state and federal sentencing

guidelines have been established. In 1984, Congress passed the Sentencing Reform

Act (SRA), the purpose of which was to achieve honesty, uniformity, and propor-

tionality in sentencing.

Numerous studies have documented sentencing disparities among various

races of offenders, with some of the disparity attributed not to the race of the defen-

dant but, rather, to that of the victim. In one well-known study, Baldus et al. (1990)

found defendants charged with murdering White victims were 4.3 times as likely

to receive a death sentence as were defendants charged with killing Blacks. This

result was later used by Warren McClesky, a Black man sentenced to death after

being convicted of armed robbery and the murder of a White police officer in Geor-

gia. McClesky claimed the state’s capital-sentencing process operated to deny him

equal protection of the laws in violation of the Fourteenth Amendment. In McClesky v. Kemp (1987), however, the Supreme Court found no evidence of such racial dis- crimination and affirmed the judgments of the lower courts:

For this claim to prevail, McClesky would have to prove that the Georgia Leg-

islature enacted or maintained the death penalty statute because of an antici-

pated racially discriminatory effect. In Gregg v. Georgia (1976), this Court found that the Georgia capital sentencing system could operate in a fair and neutral

manner. There was no evidence then, and there is none now, that the Georgia

Legislature enacted the capital punishment statute to further a racially discrimi-

natory purpose.

Eliminating racial discrimination was the major goal of the sentencing guide-

lines movement that started in the 1970s. Today, according to a study by the

National Center for State Courts, such sentencing guidelines have effectively

reduced the negative impacts of extralegal factors, such as offender race, gender,

and socioeconomic status, on the sentences handed down for criminal offenses

(Ostrom et al., 2008).

The Equal Prot ect ion Clause prohibits discrimination in jury select ion on the basis of race or gender.

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Chapter 4 Equal Protection under the Law 111

In July 2010 Congress passed a bill that changed a quarter-century-old law

subjecting tens of thousands of Blacks to long prison terms for crack cocaine

convictions while treating those caught with the powder form of the drug,

mainly Whites, with far more lenient sentences. The bill modifies a 1986 law

passed when crack cocaine use was rampant and considered a particularly vio-

lent drug and that allowed a person convicted of crack cocaine possession to

receive the same mandatory prison term as someone convicted of possessing 100

times the amount of powder cocaine. The new legislation reduces the 100–1 ratio

to about 18–1 and eliminates the 5-year mandatory minimum for the first-time

possession of crack.

Senator Patrick Leahy from Vermont praised the vote: “These disproportionate

punishments have had a disparate impact on minority communities. This is unjust

and runs contrary to our fundamental principles of equal justice under the law.”

However, Representative Lamar Smith from Texas warned that the legislation

“could expose our neighborhoods to the same violence and addiction that caused

Congress to act in the first place” because crack cocaine is often associated with a

greater degree of violence than other drugs (Ingram, 2010).

Whatever sentencing decisions are made by the courts, the corrections system

must then execute. Consequently, any disparity or discrimination generated at the

court stage is inherited by corrections.

Discrimination in Corrections

What has been termed the due process revolution that emerged during the politically tumultuous 1960s and 1970s affected every area of the law. In addition to the civil

rights movement, the plight of groups who had been in many ways ignored by the

Bill of Rights—for example, children—gained national attention. The field of cor-

rections changed forever in 1968, when, thanks to television and the media, many

Americans had their first look inside prisons. And they were horrified.

The Attica Prison riot, followed by the New Mexico Penitentiary riot and a host

of other uprisings in American correctional facilities, shocked the public. The

deplorable conditions that spawned much unrest by inmates and the way law

enforcement and correctional personnel were treating inmates reversed roles and

made the government look like the criminals. Like every other segment of society

in the United States during that period, corrections and the prison system were fac-

ing vast changes, including the unprecedented granting of rights to prisoners. And

with more than 1 million people now incarcerated in prison and an additional 4

million supervised in other correctional facilities, prisoners’ rights continue to

greatly affect the judicial system.

Perhaps because few Americans ever saw what prison life was actually like, and

maybe did not care, the plight of inmates was long ignored. However, once Ameri-

cans learned of the atrocities happening in U.S. correctional institutions, they rec-

ognized the need for due process there as well.

It comes as a surprise to many that prisoners have any rights at all. Historically,

they had few or none. Once people were remanded to a correctional facility, what

happened to them seemed to be of little concern:

During his term of service in the penitentiary, he is in a state of penal servitude

to the State. He has, as a consequence of his crime, not only forfeited his liberty,

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112 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

but all his personal rights except those which the law in its humanity accords

him. He is for the time being the slave of the State. He is civiliter mortuus; and

his estate, if he has any, is administered like that of a dead man. (Ruffin v. Commonwealth, 1871)

The judiciary of that time also believed separation of government prevented

them from interfering with executive agencies. From the 1820s through the early

1940s, prison administrators were essentially sovereign, enjoying enormous power

and little accountability. In the 1940s, however, the attitude in the United States

toward corrections began to change as a move toward rehabilitation, rather than

strictly punishment, emerged. In Ex parte Hull (1941), one of the formative cases affecting the prisoner’s rights movement, the Supreme Court acknowledged that

even prisoners had rights and that the previous and routine practice of censoring

and discarding prisoners’ legal petitions to courts was unconstitutional. The Court

also held, not totally dissimilar to the holding in Marbury v. Madison (1803), that court officials, not correctional officials, held the decision-making authority regard-

ing what rights prisoners had.

The Court further ruled, in Cooper v. Pate (1964), that inmates could sue the warden for depriving them of their constitutional rights under Section 1983 of the

U.S. Code, thereby opening the door for inmates to seek legal redress in court. And

although there was a brief flurry of frivolous lawsuits filed by

prisoners (one inmate claimed his religion forbade him from

eating “pungent” foods, such as anything cooked with onions or

garlic), and such frivolities still continue although to a lesser

extent, the system sought a balance, reflected in the cases dis-

cussed in subsequent chapters.

It is important to differentiate between privileges and rights of inmates, and this

is where the public gets confused.

Although there are different theories on what privileges benefit prisoners or

prisons (e.g., television may be seen by the public as an unnecessary privilege,

whereas corrections officials view it as a way to keep inmates

occupied and to prevent moral and behavioral problems result-

ing from total boredom), these should not be confused with

rights all Americans, even those incarcerated, have under the

Constitution.

Correctional facilities are required by the Americans with Dis-

abilities Act (ADA) to provide special accommodations, pro-

gramming, and services to disabled inmates. The ADA gives

inmates with disabilities legal leverage in obtaining special ben-

efits. Not providing adequate services may lead to expensive,

time- consuming lawsuits. For example, sign language interpreters are usually

required for hearing-impaired inmates.

Disciplinary Hearings The Fourteenth Amendment also covers due process

rights during disciplinary hearings. Wolff v. McDonnell (1974) involved the claim that Nebraska’s disciplinary procedures, particularly those relating to loss of good

time (credited reduction in time served on a sentence because of an inmate’s good

behavior, participation in programs, and so on), were unconstitutional. As a result,

the Supreme Court determined that disciplinary proceedings differed from criminal

MYTH Prisoners, by virtue of their

incarceration, relinquish all

constitutional rights.

REALITY Although prisoners do not have

full constitutional rights, they do

retain some, including:

• the Eighth Amendment’s

protection against cruel and

unusual punishment

• the Fourteenth Amendment’s

due process right to access to

court and administrative appeals

• the protection against unequal

treatment on the basis of race,

sex, and creed, according to

the Equal Protection Clause of

the Fourteenth Amendment

• limited First Amendment rights

to speech and religion

A right is a legally prot ect ed claim, wh ereas a privilege is not nec ess arily legally prot e cted.

right a legally protected claim

privilege a claim that is not legally protected

For prisoners, cases based on Fourteenth Amendment rights involve equal prot ect ion on the basis of race, gender, and the availability of facilities and services .

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Chapter 4 Equal Protection under the Law 113

prosecutions such that prisoners were not owed the full due process rights to which

a defendant on trial is entitled. The minimum requirements specified by the Court

concerning disciplinary proceedings included the right to receive advanced written

notice of the alleged infraction, to have sufficient time to prepare a defense, to pres-

ent documentary evidence and to call witnesses on his or her behalf, to seek counsel

when the circumstances of the case are complex or if the prisoner is illiterate, to

have a written statement of the findings of the disciplinary committee, and to main-

tain a written record of the proceedings.

Access to Court Access to court is another Fourteenth Amendment right issue.

Since Cooper v. Pate (1964), a lengthy list of “access-to-court” cases has been gener- ated. The validity of a prisoner’s right-to-court access was solidified in Cruz v. Hauck (1971), when the court stated, “ready access to court is one of, perhaps the most fundamental constitutional right.” However, few resources were available to

inmates faced with preparing a defense. In Bounds v. Smith (1977), the Court ruled that North Carolina must furnish each correctional institution with an adequate law

library. Some states have even provided law libraries so extensive as to be envied

by attorneys.

In Johnson v. Avery (1969), the Supreme Court had ruled it acceptable for inmates to help each other with legal work in case preparation, unless the correctional facil-

ity provided other reasonable legal assistance. The libraries allowed an inmate with

sufficient interest in learning the law to become a “jailhouse lawyer.” Some facilities

have avoided the extensive use of jailhouse lawyers by establishing legal-assistance

programs staffed by practicing lawyers or law students. More constitutional law

affecting corrections is included in subsequent chapters.

In 2008, ICE launched a new effort to better identify, detain, and remove

from the United States illegal aliens held in local jails, by integrating the FBI’s

database with a similar DHS database. In 2008, the ICE screened all federal and

state prisons for illegal immigrants, but covered only about 10 percent of the

jails. The “cornerstone of the effort is expanding technology to allow local offi-

cials to identify illegal aliens held in their jails so they can be removed from the

country before being released into local communities” (“ICE Plans to Remove,”

2008, p. 6).

A Check on Federal Power Just as states may exceed their power, so too, can the federal government. An

example of this is the Brady Bill or the Brady Handgun Violence Prevention Act,

which became law after President Bill Clinton signed it in November 1993. The bill

was named after James Brady, the press secretary to President Ronald Reagan

who, during the assassination attempt on Reagan, was shot and permanently dis-

abled. Some of the provisions of the bill were later deemed by the Supreme Court

to be unconstitutional, for example, the five-day waiting period stipulated by the

Act with the National Instant Check System (NICS) allowing for instant back-

ground checks.

Another example of the legislature declaring legislation, or portions of legisla-

tion, unconstitutional is United States v. Lopez (1995), in which the Supreme Court struck down a 1990 federal law aimed at banning firearms in schools, ruling 5–4

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114 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

that Congress had exceeded its power under the Commerce Clause of the US Con-

stitution when it enacted the law. The U.S. Court of Appeals for the Fifth Circuit

ruled that Congress had exceeded its power in enacting the law, and the Supreme

Court agreed.

In another case, Jones v. United States (1999), the Supreme Court limited the reach of the federal arson law. Jones was convicted of throwing a Molotov

cocktail into the home of his cousin and was sentenced to 35 years in federal

prison. Jones appealed, arguing that the federal arson law did not apply to cases

like his. The Supreme Court granted certiorari and ruled the law had, in fact,

been misapplied. The federal law, as written, applies only to property used in

interstate or foreign commerce, not to the arson of an owner-occupied

private residence.

Federalism Revisited

Many citizens lament that the country is headed toward more and bigger gov-

ernment. The founding fathers feared big government and built safeguards

against it into the Constitution. However, a 20-year study by The Washington Post found, “The top-secret world the government created in response to the terrorist

attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that

no one knows how much money it costs, how many people it employs,

how many programs exist within it or exactly how many agencies do the same

work. . . . After nine years of unprecedented spending and growth, the result is

that the system put in place to keep the United States safe is so massive that its

effectiveness is impossible to determine” (Priest and Arkin, 2010). The system

includes some 1,271 government organizations and 1,931 private companies

working on counterterrorism, homeland security, and intelligence programs in

more than 10,000 locations across the country, generating 50,000 intelligence

reports a year. The result is that many reports are routinely ignored. “These are

not academic issues; lack of focus, not lack of resources, was at the heart of the

Fort Hood shooting that left 13 dead, as well as the Christmas Day bomb attempt

thwarted not by the thousands of analysts employed to find lone terrorists but

by an alert airline passenger who saw smoke coming from his seatmate” (Priest

and Arkin). Figure 4.3 illustrates the myriad counterterrorism command centers

in the Washington area alone.

Another issue currently involving constitutional issues and federal powers, like

the immigration issue, is the controversy over S.3194, the Public Safety Employer-

Employee Cooperation Act of 2009, and the role of unions in public safety

organizations.

The Public Safety Employer-Employee Cooperation Act of 2009

A battle is underway. On one side are local police chiefs and sheriffs who oppose

legislation requiring state and local government to give police officers the right to

bargain collectively. On the other side are organizations representing rank-and-file

officers, including the National Association of Police Organizations (NAPO) and

the National Fraternal Order of Police (FOP) who have been working to win

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Chapter 4 Equal Protection under the Law 115

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116 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

passage of such legislation. “Similar bills have been considered by Congress for

more than a decade, but law enforcement organizations on both sides of the issue

indicated that passage this year is a real possibility—or threat, depending on the

point of view” (“House Passes Bill,” 2010, p. 3).

The controversial bill, S.3194 (the Public Safety Employer-Employee Coopera-

tion Act of 2009), which began as H.R.413, would authorize the Federal Labor Rela-

tions Authority (FLRA) to identify which states do not provide certain collective

bargaining rights to first responders and then issue regulations establishing those

rights. Police chiefs and sheriffs have voiced concern, warning that it would create

a “one size fits all straightjacket on law enforcement agencies.” Mayors and city

council members expressed anger over the federal government moving to take over

local officials’ job of managing city finances.

In an effort to ensure that the bill would pass, the House attached it to the

“must pass” funding bill financing the war effort. The bill passed, and the union

declared victory. The Senate, however, rejected the bill 46–51, voting to send their

original version of the bill, which does not include the collective bargaining

requirement, back to the House. According to Neil Bomberg, program director for

human development with the National League of Cities, opposition to the bill is

not intended to be anti-union: “The reason we opposed this has nothing to do with

collective bargaining. It has to do with another incursion of the federal govern-

ment in the business of state and local governments” (Wolfe, 2010). Since April 13,

2010, the bill has sat, without progress, on the Senate Legislative Calendar under

General Orders.

This issue, along with many others, will be debated in the months, and possibly

years, ahead. How such issues are resolved will have a direct impact on law

enforcement and the public it serves.

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Chapter 4 Equal Protection under the Law 117

Discussion Questions

Summary

1. Why was the Fourteenth Amendment necessary?

2. Why has the entire Bill of Rights not been embraced by the Fourteenth Amendment?

3. Why are people prejudiced? Do you recognize your own prejudices?

4. Do you think employment quota laws improve fairness or worsen it? for whom?

5. Can it be argued that government has “gone too far” by requiring all people to be treated equally? Can you think of instances in which different people might not be equally able to do a job?

6. Should inmates be allowed to file as many petitions as they please, or should a limit be placed so they

To ensure “liberty and justice for all,” two additional

amendments to the U.S. Constitution were passed.

The Thirteenth Amendment, ratified in 1865, abol-

ished slavery. The Fourteenth Amendment, ratified in

1868, granted citizenship to all persons born or natu-

ralized in the United States and subject to the jurisdic-

tion thereof, and forbid states to deny their citizens

due process of law or equal protection of the law; that

is, it made certain provisions of the Bill of Rights appli-

cable to the states. Procedural due process requires the

law to be applied and executed fairly. Substantive due

process requires that the laws, themselves, be fair.

The doctrine of incorporation holds that those

provisions of the Bill of Rights that are fundamental

to the U.S. scheme of justice—enumerated rights—

are applied to the states through the Due Process

Clause of the Fourteenth Amendment.

The ultimate importance of Griswold is that the Court will recognize unenumerated rights, and fun-

damental unenumerated rights within the Due Pro-

cess Clause. Enumerated rights are textually explicit

rights incorporated against the states and almost

always evaluated with strict scrutiny. Unenumer-

ated rights, in contrast, are not explicitly stated in

the Constitution or Bill of Rights but exist via the

liberty guaranteed by the Fourteenth Amendment and are considered either fundamental (e.g., civil

liberties), thus evaluated under strict scrutiny, or

non- fundamental (e.g., economic or property liber-

ties), which are evaluated under a rational basis test.

would be more selective in bringing up their grievances? Is there a potential for corruption in either scenario?

7. What are your views on the immigration issue?

8. What role do you think the Great Depression played in the Supreme Court changing its level of scrutiny regarding economic legislation?

9. What is “right-to-work” legislation? Does it have the same affect on public employees and private employees?

10. Would you have a procedural due process claim if the state suspended your driver’s license? What facts would you need to show this violated due process?

Prejudice is an attitude; discrimination is a behav-

ior. Racial discrimination in the United States has its

roots in our nation’s history of slavery. The Dred Scott decision (1856) ruled that a freed slave did not enjoy

the right to remain free in a territory where slavery was

still legal. Plessy v. Ferguson (1896) showed the Court’s desire to avoid civil rights issues, declaring discrimina-

tion to be outside the realm of the Court. Jim Crow

laws strictly segregated Blacks from Whites in schools,

restaurants, streetcars, hospitals, and cemeteries.

The Court did not directly confront civil rights

until the 1950s and 1960s. The Equal Pay Act of 1963,

the Civil Rights Act of 1964, the Equal Opportunity

Act of 1972, and Title IX of the Education Amend-

ments of 1972 prohibit discrimination based on race,

color, religion, sex, or national origin in employment

and education in public and private sectors at the

federal, state, and local levels. Affirmative action was

created to spread equal opportunity throughout the

diverse U.S. population.

The Equal Protection Clause of the Fourteenth

Amendment to the Constitution applies to racial pro-

filing. Race-based enforcement of the law is illegal.

The Equal Protection Clause also prohibits discrimi-

nation in jury selection on the basis of race or gender.

A right is a legally protected claim, whereas a

privilege is not necessarily legally protected. For

prisoners, cases based on Fourteenth Amendment

rights involve equal protection on the basis of race,

gender, and the availability of facilities and services.

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118 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

References Baldus, David C., Woodworth, George, and Pulaski,

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Brunner, Borgna. “Affirmative Action History: A History and Timeline of Affirmative Action.” Information Please Database, 2007. Retrieved April 17, 2013, from www.infoplease.com/spot/ affirmative1.html.

Christie, Bob. “Selective Enforcement at Heart of Arizona Immigration Lawsuit.” Associated Press, July 8, 2010. Retrieved April 16, 2013, from www .semissourian.com/story/1648015.html.

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Davis, Burke. The Civil War: Strange and Fascinating Facts. New York: Random House Value Publishing, 1988.

Ducat, Craig R. Constitutional Interpretation, 9th ed. Belmont, CA: West/Thomson Learning, 2010.

Dwyer, Terrance P. “Understanding the Precedent for Judge Bolton’s Ruling on Ariz. 1070.” PoliceOne.com News, July 28, 2010. Retrieved April 16, 2013, from www.policeone.com/legal/articles/2147676- Understanding-the-precedent-for-Judge-Boltons- ruling-on-Ariz-1070.

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“Government’s 287(g) Program Criticized in Hearings in House.” Criminal Justice Newsletter, March 2, 2009, pp. 5–7.

Griffith, David. “America’s Broken Window.” Police, July 2010, p. 10.

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“House Passes Bill Requiring Collective Bargaining for State and Local Police, Fire and EMS Workers.” Subject to Debate, July 2010, p. 3.

“ICE Plans to Remove from Country More Illegal Aliens Held in Jails.” Criminal Justice Newsletter, May 1, 2008, p. 6.

Ingram, David. “Congress Passes Bill to Cut Federal Sentences in Crack Cocaine Cases.” The National Law Journal, July 29, 2010. Retrieved April 16, 2013, from www.law.com/jsp/article .jsp?id=1202464009761&Congress_Passes_Bill_to_ Cut_Federal_Sentences_in_Crack_Cocaine_ Cases&slreturn=20130317172633.

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Chapter 4 Equal Protection under the Law 119

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(1972) Boddie v. Connecticut, 401 U.S. 371, 378 (1971) Bounds v. Smith, 430 U.S. 817 (1977) Brown v. Board of Education of Topeka, 347 U.S. 483

(1954) Cooper v. Pate, 378 U.S. 546 (1964) Cruz v. Hauck, 404 U.S. 59 (1971) De Canas v. Bica, 424 U.S. 351 (1976) Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) Duncan v. Louisiana, 391 U.S. 145 (1968) Ex parte Hull, 312 U.S. 546 (1941) Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561

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Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) Gratz v. Bollinger, 539 U.S. 244 (2003) Gregg v. Georgia, 428 U.S. 153 (1976) Griswold v. Connecticut, 381 U.S. 479 (1965) Grutter v. Bollinger, 539 U.S. 306 (2003) Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) Hollingsworth v. Perry, 570 U.S. ____ (2013) J.E.B. v. Alabama, 511 U.S. 127 (1994) Johnson v. Avery, 393 U.S. 483 (1969) Jones v. United States, 527 U.S. 373 (1999) Local 28, Sheet Metal Workers International Association v.

EEOC, 478 U.S. 421 (1986) Lochner v. New York, 198 U.S. 45 (1905) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) Massachusetts Board of Retirement v. Murgia, 427 U.S. 307

(1976) Mathews v. Eldridge, 424 U.S. 319 (1976) McClesky v. Kemp, 481 U.S. 279 (1987) McDonald v. Chicago, 561 U.S. 3025 (2010) Meyer v. Nebraska, 262 U.S. 390 (1923) Nebbia v. New York, 291 U.S. 502 (1934) Norris v. Alabama, 294 U.S. 587 (1935) Palko v. Connecticut, 302 U.S. 319 (1937) Plessy v. Ferguson, 163 U.S. 537 (1896)

Priest, Dana, and Arkin, William M. “A Hidden World, Growing Beyond Control.” Top Secret America: Washington Post Investigation. The Washington Post, July 19, 2010. Retrieved April 16, 2013, from http:// projects.washingtonpost.com/top-secret-america/ articles/a-hidden-world-growing-beyond-control/ or www.pulitzer.org/files/entryforms/WashPost_TSA_ Item1.pdf.

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“Racial Profiling Prohibition Will Be Debated in Congress,” Criminal Justice Newsletter, December 17, 2007, pp. 3–4.

Roh, Sunghoon, and Robinson, Matthew. “A Geographic Approach to Racial Profiling.” Police Quarterly, June 2009, pp. 137–169.

Scarry, Laura L. “Cause for an Arrest, or Protected Speech?” Law Officer, September 2008.

Solar, Mark, and Garry, Lisa M. Reducing Dispropor- tionate Minority Contact: Preparation at the Local

Level. (NCJ 218861). Washington, DC: Office of Juvenile Justice and Delinquency Prevention, September 2009.

Sourcebook of Criminal Justice Statistics Online. www .albany.edu/sourcebook.

Sykes, Marquita. “The Origins of Affirmative Action.” National NOW Times, August 1995. Retrieved April 16, 2013, from www.now.org/nnt/08-95/ affirmhs.html.

Walker, Samuel, Spohn, Cassia, and DeLone, Miriam. The Color of Justice: Race, Ethnicity and Crime in America, 5th ed. Belmont, CA: Wadsworth/ Thomson, 2012.

Wexler, Chuck. “Introduction,” in Police Chiefs and Sheriffs Speak Out on Local Immigration Enforcement. Washington, DC: Police Executive Research Forum. April, 2008, pp. i–iii.

Wolfe, Billy. “Failure of Bill a Relief to Some.” Charleston Daily Mail, July 27, 2010. Retrieved April 16, 2013, from www.dailymail.com/News/ Kanawha/201007260785.

Wyllie, Doug. “The Immigration Situation: P1 Members Speak Out.” PoliceOne.com, May 28, 2010. Retrieved April 16, 2013, from www.policeone .com/patrol-issues/articles/2073114-The- immigration-situation-P1-Members-speak-out/.

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120 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Plyler v. Doe, 457 U.S. 202 (1982) Regents of the University of California v. Bakke, 438 U.S.

265 (1978) Ricci v. DeStefano, 557 U.S. 557 (2009) Richmond Newspapers Inc v. Virginia, 448 U.S. 555 (1980) Roe v. Wade, 410 U.S. 113 (1973) Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790 (1871) Schuette v. Coalition to Defend Affirmative Action,

Docket No. 12-682 (2013) Shapiro v. Thompson, 394 U.S. 618 (1969) Strauder v. West Virginia, 100 U.S. 303 (1879) Sugarman v. McDougall, 413 U.S. 634 (1973)

Swain v. Alabama, 380 U.S. 202 (1965) United States v. Brignoni-Ponce, 422 U.S. 873 (1975) United States v. Carolene Products Co., 304 U.S. 144 (1938) United States v. Lopez, 514 U.S. 549 (1995) United States v. Paradise, 480 U.S. 149 (1987) United States v. Virginia, 518 U.S. 515 (1996) United States v. Windsor, 570 U.S. ____(2013) United Steelworkers of America v. Weber, 443 U.S. 193

(1979) Washington v. Glucksberg, 521 U.S. 702 (1997) Wolff v. McDonnell, 418 U.S. 539 (1974) Wygant v. Jackson Board of Education, 476 U.S. 267 (1986)

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121

Freedom of religion is a cornerstone of not only the Constitution but U.S. ideology. However, in our

post-9/11 society, many Muslim-Americans have experienced discrimination by and distrust from

non-Muslims. Here, protesters gather at the “Today, I Am a Muslim, Too” rally to protest against a

planned congressional hearing on the role of Muslims in homegrown terrorism, Sunday, March 6,

2011, in New York.

Congress shall make no law res pect ing an es tablishment of religion, or prohibiting the fr ee exercise thereof ; or abridging the fr eedom of speec h, or of the press , or the right of the people peaceably to ass emble, and to pet ition the Government for a redress of grievances .

—First Amendment to the U.S. Constitution

The First Amendment Basic Freedoms

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122 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

■ What basic freedoms are guaranteed in the First Amendment?

■ Whether rights guaranteed in the First Amendment are absolute?

■ What freedoms are included in religious freedom?

■ What the Establishment Clause guarantees? the Free Exercise

Clause?

■ What freedom of speech guarantees U.S. citizens?

■ What type of speech Congress has passed laws restricting?

■ What the “imminent lawless action” test involves and when it is likely

to be used?

■ Under what two conditions police officers’ speech is protected

under the First Amendment?

■ Whether symbolic acts are protected under the First Amendment?

■ What is included in freedom of the press?

■ What basic freedoms prison inmates have?

Do You Know . . .

Can You Define? balancing test

“clear and present

danger” test

“clear and probable

danger” test

Establishment Clause

Free Exercise Clause

“imminent lawless

action” test

judicial activism

preferred freedoms

approach

prior restraint

“rational basis” test

strict scrutiny

symbolic speech

Introduction Americans often know more constitutional law than they think. The media, despite

criticisms about reporting, present so much about the law that the general public

cannot help but develop a sense of some basic legal tenets. This is

certainly the case with the First Amendment.

Differences and difficulties in interpretation have character-

ized much of the later history of the First Amendment. For

example, despite the apparent absolute prohibition in the

phrase “Congress shall make no law . . . ,” Congress has, in fact,

passed laws in the public interest many times that restrict free-

dom of religion, speech, and press. Keep in mind that the fram-

ers of the Constitution intended to construct only the basic

framework of U.S. law. General terms such as religion, speech, and press have generated great debate as U.S. law continues to grow and change.

The First Amendment prohibits Congress fr om making any laws that res trict fr eedom of religion, fr eedom of speec h, fr eedom of the press , or the right to gather or ass emble peaceably and to reques t the government to res pond to complaints fr om its citizens.

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Chapter 5 The First Amendment: Basic Freedoms 123

In addition, federal agencies and prosecutors have initiated actions that

have resulted in certain limitations on freedom of speech and press. In ruling on

the constitutionality of various restrictions on these civil rights, the Supreme

Court has at times tended to support either individual rights or society’s inter-

ests. It sounds simple, but it is not. Private-versus-public inter-

ests continue to be at odds while giving courts continual

opportunities to provide solutions to best serve all involved,

including those who will rely on past law to determine future

decisions.

Since the early 1950s, the Supreme Court has sought a bal-

anced approach whereby both private and public interests are

weighed in each case, as illustrated in Figure 5.1.

The framers of the Constitution intended that it be interpreted. Interpretation

plays an important role in constitutional law, and that is why those who drafted the

document kept it so fundamental. The basic nature of the Constitution permits

courts to continue to interpret law to allow it to grow with society.

This chapter provides an in-depth look at how the First Amendment has been

interpreted over the years, beginning with freedom of religion, followed by free-

dom of speech and freedom of the press. Next the right to peaceful assembly and

freedom of association are discussed. The chapter concludes with a look at the First

Amendment rights of prisoners.

What is good for me?

What is good for us?

Individual rights

Societal rights

Figure 5.1 Balancing Individual and Societal Rights

a d sw

o rt

h /C

e n g a g e L

e a rn

in g

No rights are absolute, so government can regulate them wh en social interes ts outweigh those of the individual.

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124 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Freedom of Religion Freedom of religion is the first right set forth in the Bill of Rights. The colonists who

fled religious persecution cherished their right to worship as they saw fit in their

new country. Because religions differed from colony to colony, with Episcopalians

predominating in one area, Presbyterians in another, and Congregationalists and

Quakers in still others, the founding fathers wanted to guarantee every individual

religious freedom:

The religious wars that battered Europe between the Middle Ages and the

Enlightenment and the theological intolerance that blemished the reign of the

Tudors and brought down the rule of the Stuarts in the English Civil War pro-

vided ample testimony to the importance of not creating political cleavages

along such emotional lines. The Establishment Clause was the fruit of a harsh

European history lesson that taught that the solder of social cohesion was

quite apt to melt under the heat generated by religious conflict. (Ducat, 2010,

p. 1049)

Laws regarding religion in the newly independent America created a “crazy

quilt” (Davis, 2010, p. 87). For example, Massachusetts allowed only Christians to

hold public office, and Catholics were required to renounce papal authority to

hold public office. New York’s constitution banned Catholics from public office.

In Maryland, Catholics had full civil rights, but Jews did not. Several states had

official, state-supported churches. According to Davis (2010, pp. 92–93), “While

some of America’s early leaders were models of virtuous tolerance, American

attitudes were slow to change. The anti-Catholicism of America’s Calvinist past

found new voice in the 19th century. The belief widely held and preached by some

of the most prominent ministers in America was that Catholics would, if permit-

ted, turn America over to the pope. Anti-Catholic venom was part of the typical

American school day.” He states that in Massachusetts an anti-Catholic mob

burned a convent to the ground, and in Philadelphia anti-Catholic sentiment

along with an anti-immigration mood resulted in the Bible Riots of 1844, in which

houses were torched, two Catholic churches were destroyed, and at least 20 peo-

ple were killed.

At about the same time, Joseph Smith founded Mormonism and met with the

“wrath of the mainstream Protestant majority,” who tarred and feathered him,

marking the beginning of a long battle between Christian America and Smith’s

Mormonism. In 1960 Catholic presidential candidate John F. Kennedy made a major

speech declaring that his loyalty was to the United States, not the pope, and in 2012

Mormon candidate Mitt Romney addressed the suspicions still directed toward the

Church of Jesus Christ of Latter-day Saints. In addition, anti-Semitism has been

practiced institutionally and socially for decades (Davis, 2010).

In the United States in the present day, particularly since the terrorist attacks of

September 11, 2001, the country is experiencing a deep distrust of Muslims, as

attested to by the controversy of building a mosque near the site where the Twin

Towers once stood in New York City. However, “America can still be, as Madison

perceived the nation in 1785, ‘an asylum to the persecuted and oppressed of every

nation and religion.’ But recognizing that deep religious discord has been part of

America’s social DNA is a healthy and necessary step” (Davis, 2010, p. 96).

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Chapter 5 The First Amendment: Basic Freedoms 125

Freedom of religion is a political principle that strives to forbid

government constraint on people’s choices of beliefs. It requires

also that people be free to act on their beliefs.

The concept of separation of church and state is an important

legal issue related to freedom of religion. Such a separation is not

necessarily present in other parts of the world, and its absence

does not necessarily indicate the absence of religious freedom.

Many governments attempt to control their society by controlling

religion. Some dictatorships have banned certain religions altogether. The United

States, however, has always held such basic freedoms in high regard.

To truly separate church and state is challenging. In fact, it cannot be done

totally, even if that was the intent. Churches must conform to building and fire

codes. Certain behaviors are not accepted anywhere, including churches. Although

some separations are obvious, the line can easily become blurred. Ultimately, the

government must decide whether a group claiming to be a religion actually is.

The First Amendment demands that in making these decisions, the government

neither favors nor is hostile toward one religion over others. Government is to

remain neutral.

Freedom of religion is commonly discussed in terms of two

clauses: the Establishment Clause and the Free Exercise Clause.

The Establishment Clause

The Establishment Clause has been interpreted at various times to

mean either that government cannot show preference to any par-

ticular religion or that church and state must be completely sepa-

rate. Emotional disputes have involved litigation over such issues

as government assistance to religiously sponsored schools, devotional practices in

public schools, and treatment of sectarians, whose religious convictions are not eas-

ily accommodated by local law. The cases that follow illustrate how the Supreme

Court has struggled with religious issues.

An early case regarding religious freedom was Hamilton v. Regents of University of California (1934). This case involved “conscientious objection” to war and pitted student members of a church against the state university they attended. The uni-

versity required all freshmen and sophomores to complete six units of military

training to attain full academic standing as a junior. The students petitioned the

university regents to make the military training courses optional or to exempt them

as conscientious objectors. Their petition was denied. The students, adhering to

their convictions, declined to take the prescribed courses and were suspended.

They filed suit, challenging the validity of the state constitution and claiming their

suspension violated their constitutional rights. When the students lost and

appealed, the Court again denied their request, handing down its opinion that

under the state’s constitution the regents were entitled to include military courses

in the required curriculum and that the petitioning students’ suspension for refus-

ing to take these compulsory courses involved no violation of their rights under the

U.S. Constitution.

The Supreme Court noted the regents’ order to take the prescribed courses did

not obligate the students to serve in or in any way become a part of the U.S. military

Religious fr eedom includes the fr eedom to worship, to print instructional material, to train teachers, and to organize schools in wh ich to teach, including religion.

The Establishment Clause of the First Amendment states , “Congress shall make no law res pect ing an es tablishment of religion.” That is, Congress cannot create a national church or pres cribed religion.

Establishment Clause clause in the First Amendment

that states, “Congress shall make

no law respecting an

establishment of religion”

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126 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

establishment. The Court asserted, “Government, federal and state, each in its own

sphere owes a duty to the people within its jurisdiction to preserve itself in ade-

quate strength to maintain peace and order and to assure the just enforcement of

law. And every citizen owes the reciprocal duty, according to his capacity, to sup-

port and defend the government against all enemies.”

The Establishment Clause and separation of church and state was made

applicable to the states in Everson v. Board of Education (1947), in which the Supreme Court held that a state statute allowing reimbursement to parents for

money spent to transport their children to parochial schools on the public bus

system did not constitute an establishment of religion. Citing the words of

Thomas Jefferson—that the clause against the establishment of religion by law

was intended to erect a “wall of separation between Church and State”—

and noting the reimbursement policy applied to parents of both public and

parochial school students, the Court determined the policy did conform to the

separationist intent of the clause and likened the statute to general public-

welfare legislation.

In Engle v. Vitale (1962), the Court held that prayer, voluntary or otherwise, con- ducted in public school classrooms was unconstitutional. This decision was also the

holding in Abington School District v. Schempp (1963) and Murray v. Curlett (1963), two cases heard together, regarding schools that began each day by reading Bible

verses. In 1985 in Wallace v. Jaffree, the Court held that even a “moment of silence for meditation or voluntary prayer” was being used to encourage religious values

and was unconstitutional.

Law challenging the Establishment Clause because of an incidental benefit must

meet three standards: it must (1) have a primary secular purpose, (2) have a prin-

ciple effect that neither advances nor inhibits religion, and (3) not generate exces-

sive entanglement between government and religion, as set forth in Lemon v. Kurtzman (1971). In this case, Rhode Island was providing a 15-percent salary sup- plement to teachers of secular subjects in private schools. The Court invalidated the

state’s attempt to subsidize costs of parochial school education by ruling that the

statutes fostered an excessive entanglement between church and state in violation

of the Establishment Clause.

Chief Justice Warren E. Burger stressed that programs that provided significant

ongoing aid to parochial elementary and secondary schools injected an explosive

political issue that caused division along religious lines, effectively guaranteeing

yearly public debates and political conflicts. In Lemon, the Court found that secular and religious education were so tightly intertwined that to support one without

supporting the other would be virtually impossible and that separating the two

would involve the state so deeply in the religious institution’s administration as to

impair its independence, generating an “excessive entanglement” in conflict with a

central purpose of the establishment clause.

In 1980, the Court struck down a Kentucky law requiring the posting of the Ten

Commandments in all classrooms (Stone v. Graham, 1980). The “Equal Access” law of 1984, however, gave students the right to hold religious meetings in public high

schools outside class hours.

Aguilar v. Felton (1985) began an analytical change by the Court in holding that rather than the specific elements of Lemon, the Establishment Clause barred the City of New York from sending public school teachers into parochial schools to provide

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Chapter 5 The First Amendment: Basic Freedoms 127

remedial education to disadvantaged children pursuant to a congressionally man-

dated program. The intense state monitoring of public employees who teach in

religious institutions to ensure they were not including religion necessitated exces-

sive government entanglement with religion, leading the Court to place a perma-

nent injunction on state aid to parochial schools.

However, the Court’s decision in Agostini v. Felton (1997) took the opposite direction. At issue was a federally funded remedial education program in New

York City, based on Title I of the Elementary and Secondary Education Act of 1965,

aimed at economically disadvantaged and educationally deprived children, most of

whom attended parochial schools. Public funds were used to purchase materials

and supplies and to pay instructors, including those teaching in the private schools.

In Agostini, the New York City Board of Education sought relief from the injunction resulting from Aguilar, contending that the cost of compliance severely restricted the money available to provide remedial instruction to the students who needed it.

In examining its own seemingly opposing interventions involving the time

from Aguilar to Agostini, the Court acknowledged its Aguilar ruling had, in fact, been undercut by subsequent decisions, most notably Zobrest v. Catalina Foothills School District (1993), which held that public assistance could be used for an inter- preter for a parochial school student. The Court admitted the assumptions on

which Aguilar had relied, such as excessive entanglement, had no support in more recent rulings.

This area of constitutional analysis continues to challenge both students and

judges. The Court itself has not been able to define a clear set of rules to deter-

mine outcomes of these cases, as illustrated by a series of decisions that gar-

nered national attention from 2003 to 2005. In 2003, Alabama Supreme Court

Justice Roy Moore refused to remove a statue of the Ten Commandments from

the judicial building and was eventually removed from his position. The statue

was put in a storeroom not accessible to the public. Although refusing to grant

certiorari, supporters of Judge Moore pointed out that even the U.S. Supreme

Court begins each session with the words, “God save the United States and this

honorable court.”

Then in 2004, the Supreme Court granted certiorari to two similar cases that

yielded vastly different rulings and illustrated how two competing theories influ-

ence the Court’s interpretation of the Establishment Clause. McCreary County v. ACLU (2005) involved a lawsuit filed by the American Civil Liberties Union (ACLU) against three Kentucky counties for their displays of framed copies of the

Ten Commandments on the walls inside courthouses and public schools. The

ACLU argued that the displays violated the First Amendment’s Establishment

Clause, and the Supreme Court agreed.

However, Van Orden v. Perry (2005) was a similar case filed in Austin, Texas, in which Thomas Van Orden sued Texas Governor Rick Perry because one of the 21

statues surrounding the capital building was a 6 × 3.5-foot monolith bearing the

Ten Commandments. Van Orden felt the monolith violated the Establishment

Clause and wanted it removed. A federal district court ruled for the state, and a

federal appellate court affirmed. The Supreme Court granted certiorari and

affirmed, with Chief Justice William H. Rehnquist stating, “We think it not useful

in dealing with the sort of passive monument that Texas has erected on its Capitol

grounds. Instead our analysis is driven both by the nature of the monument and

CASE IN BRIEF

McCreary County v. ACLU (2005)

ISSUE Does displaying the Ten Commandments in county

courthouses and public schools

violate the First Amendment’s

Establishment Clause, which

prohibits government from

passing laws “respecting an

establishment of religion”?

RULING Yes. An observer of such displays posted on walls

inside public structures would

likely have concluded that the

government was endorsing

religion.

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128 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

by our nation’s history. . . . Texas has treated her Capitol grounds monuments as

representing the several strands in the state’s political and legal history. The inclu-

sion of the Ten Commandments in this group has a dual significance, partaking of

both religion and government. We cannot say that Texas’ display of this monument

violates the Establishment Clause of the First Amendment.” Concurring, Justice

Clarence Thomas stated, “In no sense does Texas compel petitioner Van Orden to

do anything. The only injury to him is that he takes offense in seeing the monu-

ment as he passes it.”

McCreary and Van Orden, which were decided on the same day, illustrate the challenges facing the Court with respect to this area of constitutional law and

the necessity to analyze each case based on its unique facts and circumstances. The

McCreary decision adheres to standards set forth in the Lemon test and follows the complete “wall of separation” theory, which insists that the government and

religion are kept separate as much as possible. Government neutrality concerning

religion is necessary. Van Orden, on the other hand, championed the theory that government and religion need not, and in fact cannot, be completely separated,

noting how religion has been involved in government action and traditions for

centuries; for example, the House and Senate each have paid chaplains, and the

Supreme Court opens its sessions with a prayer.

The cases demonstrate the struggle between changing norms and constitutional

interpretations. The United States was created as a place where all people could

worship as they liked. A number of the founders were able to risk what they did

because of the courage their faith provided as proudly proclaimed in much of the

Constitution’s history. Andrew Jackson pointed out, “The First Amendment to our

Constitution was designed to avoid these conflicts by avoiding these beginnings”

(West Virginia State Board of Education v. Barnette, 1943).

The Free Exercise Clause

The free exercise of religion involves both the freedom to believe

and the freedom to act. In Davis v. Beason (1890), the Court described the First Amendment free exercise clause:

The First Amendment was intended to allow everyone under the

jurisdiction of the United States to entertain such notions

respecting his relations to his Maker and the duties they impose

as may be approved by his judgment and conscience, and to exhibit his senti-

ments in such form of worship as he may think proper, not injurious to the rights

of others.

However, the freedom to act is not so protected, a distinction further clarified

when the free exercise clause was made applicable (incorporated) to the states in

Cantwell v. Connecticut (1940). In this case, three Jehovah’s Witnesses were convicted under a statute that forbade the unlicensed soliciting of funds on the representation

that they were for religious or charitable purposes. While soliciting in a strongly

Catholic neighborhood, the Jehovah’s Witnesses had played a phonographic

recording that insulted the Christian religion and the Catholic Church in particular,

leading to an altercation and a charge of breach of the peace against the Jehovah’s

Witnesses. Through its ruling, the Court emphasized how religious beliefs cannot

CASE IN BRIEF

Van Orden v. Perry (2005)

ISSUE Does the Establish- ment Clause allow a monument

inscribed with the Ten Command-

ments to be displayed on the

state capitol grounds?

RULING Yes. The Establish- ment Clause is not violated

simply because a monument has

a religious message or promotes

a message consistent with

religious doctrine.

The Free Exercise Clause of the First Amendment dec lares , “Congress shall make no law . . . prohibiting the fr ee exercise [of religion].”

Free Exercise Clause clause in the First Amendment

that declares, “Congress shall

make no law . . . prohibiting the

free exercise [of religion]”

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Chapter 5 The First Amendment: Basic Freedoms 129

be regulated by the government and helped delineate how beliefs and acts differ

with regard to First Amendment protection:

Freedom of conscience and freedom to adhere to such religious organization or

form of worship as the individual may choose cannot be restricted by law. On

the other hand, it safeguards the free exercise of the chosen form of religion.

Thus, the Amendment embraces two concepts—freedom to believe and freedom

to act. The first is an absolute, but, in the nature of things, the second cannot be.

Conduct remains subject to regulation for the protection of society. The freedom

to act must have appropriate definition to preserve the enforcement of that

protection.

The Free Exercise Clause has taken some interesting paths as various issues

have been presented to the Court. In West Virginia State Board of Education v. Barnette (1943), the Supreme Court held that states could not require children to pledge

allegiance to the United States each school day. In his opinion, Justice Robert Jack-

son said that everyone has a First Amendment right to not pledge allegiance

because of the “freedom of thought and belief that is central to all First Amendment

freedoms.”

In Lynch v. Donnelly (1984), a government-subsidized Christmas display of a crèche was found not an advancement or endorsement of religion, and therefore,

permitted. In Wooley v. Maynard (1977), the Supreme Court held that a state could not punish someone for blacking out the part of his car’s license plate that set forth

the state’s motto, “Live Free or Die,” holding that the government is not permitted

to compel citizens to advertise government or religious beliefs or to comply with

advertising or asserting them.

However, in balancing this assertion, the Court held in Wooley that printing “In God We Trust” on money did not violate the Constitution because money is passed

among people, and therefore, does not indicate that a particular individual agrees

with a religious or governmental belief, like a motto on a license plate might. Also

money is transported in such a manner as to not be a public display. These decisions

are being made in an effort to strike a fine balance that sometimes seems out of sync

with either social norms or other law.

In Employment Division v. Smith (1990), the Supreme Court stated, “We have never held that an individual’s religious beliefs excuse him from compliance with

an otherwise valid law prohibiting conduct that the State is free to regulate.” In this

case, two Native American drug counselors in Oregon lost their jobs because they

used peyote, a hallucinogenic drug, as part of a religious ritual in the Native Ameri-

can church. Some states allowed such a practice, but Oregon did not. The Court

decreed, “Because respondents’ ingestion of peyote was prohibited under Oregon

law, and because that prohibition is constitutional, Oregon may, consistent with the

Free Exercise Clause, deny respondents unemployment compensation when their

dismissal results from use of the drug.”

Additional examples of how this ruling has affected other religious groups

include the performance of autopsies despite families’ religious beliefs and

the requirement that members of the Amish community put orange reflectors on the

backs of their buggies. When Congress passed and President Bill Clinton signed

the Religious Freedom Restoration Act (RFRA) in 1993, however, government inter-

ference with religious practices was made more difficult.

CASE IN BRIEF

Cantwell v. Connecticut (1940)

ISSUE Does the Free Exercise Clause protect an individual from

state criminal prosecution when

the person played a record that is

offensive to some because of its

religious viewpoint?

RULING Yes. The Free Exer- cise Clause, being fundamental

to the concept of liberty, protects

a person’s ability to profess reli-

gious beliefs, even if others find

such statements offensive.

CASE IN BRIEF

Employment Division v. Smith

(1990)

ISSUE Is the Free Exercise Clause violated by denying

unemployment compensation to

a person fired for using a sub-

stance (peyote) that is banned by

state law despite the fact it was

used for a religious purpose?

RULING No. Personal religious beliefs do not excuse a

person from complying with an

otherwise valid law.

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130 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

It is often difficult to tell when a law attempts to regulate religious belief or

conduct, but the distinction is important because it changes how the law is scruti-

nized. Obviously, belief regulation is not allowed, but regulation of conduct can hap- pen. If the conduct is regulated because of specific religious attachments, that

regulation will receive a high level of judicial scrutiny. Such was the case in Church of Lukumi Babalu Aye v. Hialeah (1993). In Lukumi, a church whose congregants prac- ticed the Santeria religion, which employs animal sacrifice as one of its principal

forms of devotion, had leased land in Hialeah, Florida, and announced plans to

establish a house of worship and other facilities there. Many local residents became

distressed and angry at the prospect of a Santeria church in their community, and

the Hialeah city council was pressured to hold an emergency public session to

address the matter. The result of the emergency session was the adoption of Resolu-

tion 87-66, which noted the “concern” expressed by residents of the city “that

certain religions may propose to engage in practices which are inconsistent with

public morals, peace or safety,” and declared that “[t]he City reiterates its commit-

ment to a prohibition against any and all acts of any and all religious groups which

are inconsistent with public morals, peace or safety.” At subsequent meetings, the

city council approved several other emergency ordinances, including one that

incorporated Florida’s animal cruelty laws and subjected to criminal punishment

“[w]hoever . . . unnecessarily or cruelly . . . kills any animal”; and one that defined

“sacrifice” as “to unnecessarily kill . . . an animal in a . . . ritual . . . not for the pri-

mary purpose of food consumption,” and prohibited the “possess[ion], sacrifice, or

slaughter” of an animal if it was killed in “any type of ritual” and there is an intent

to use it for food.

The Church petitioners filed suit alleging violation of their rights under the

Free Exercise Clause of the First Amendment. Although acknowledging that the

city ordinances were not religiously neutral, the District Court ruled in favor of

Hialeah, concluding, among other things, that compelling governmental interests

in preventing public health risks and cruelty to animals fully justified the absolute

prohibition on ritual sacrifice accomplished by the ordinances, and that an excep-

tion to that prohibition for religious conduct would unduly interfere with fulfill-

ment of the governmental interest. The Court of Appeals affirmed. However, the

Supreme Court granted certiorari and, although acknowledging that such activity

may offend some and noting that sport hunting was not regulated by the city ordi-

nance, reversed the lower courts’ rulings and struck down the law. The Court

stated that because the law was drafted pursuant to the religious group announc-

ing their plan, its intent was to restrict the religious freedom of that specific group

and, as such, was unconstitutional. Writing the majority opinion, Justice Anthony

Kennedy declared: “Our review confirms that the laws in question were enacted

by officials who did not understand, failed to perceive, or chose to ignore the fact

that their official actions violated the Nation’s essential commitment to religious

freedom. The challenged laws had an impermissible object; and in all events, the

principle of general applicability was violated because the secular ends asserted in

defense of the laws were pursued only with respect to conduct motivated by reli-

gious beliefs.”

Table 5.1 summarizes conduct not protected by the Freedom of Religion Clause.

Courts have had to balance the requirements of the Free Exercise Clause against

society’s legal, social, and religious needs. For example, in St. Paul, Minnesota, after

CASE IN BRIEF

Church of Lukumi Babalu Aye v.

Hialeah (1993)

ISSUE Does a city ordinance that prohibits the ritual sacrific-

ing of animals violate the Free

Exercise Clause?

RULING Yes. Under a strict scrutiny analysis the Court

determined that the ordinance

infringed religious conduct

without being justified by a

compelling interest and not nar-

rowly tailored to fit that interest.

The case record shows that the

reason for the ordinance was

to “suppress elements of the

Santeria worship service.”

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Chapter 5 The First Amendment: Basic Freedoms 131

a string of bank robberies, thefts, and crimes at a mall, the city implemented an

ordinance prohibiting people from hiding their identity “by means of a robe, mask

or other disguise.” Police used the ordinance as a prevention tactic. However, when

officers ticketed a Muslim woman for wearing a veil as part of her religious prac-

tice, the result was anger among the local Muslim community. The court ruled the

ordinance unconstitutional.

Another area of controversy is court-ordered treatment that includes religion. In

a series of cases, the Court has continued to deny certiorari, thus letting stand the

previous rulings, in which judicially mandated involvement in Alcoholics Anony-

mous (AA) or Narcotics Anonymous (NA) was determined to violate the Establish-

ment Clause because of the religious components of these 12-step programs that

reference God or a higher power. These cases include Griffin v. Coughlin (1997), which involved privileges being denied to atheist or agnostic prisoners who

refused to participate in AA faith-based treatment, and Warner v. Orange County Dept. of Probation (1993), in which the defendant objected to the religious content of mandated AA participation.

Interpretations

What, then, exactly did the authors of the First Amendment Freedom of Religion

Clause intend? Did they mean, as Justice Hugo Black argued, that the statement

“Congress shall make no law” meant just that, that Congress (and through the Four-

teenth Amendment, the states) could not in any way, shape or form do anything that

might breech the “wall of separation?” Did they mean that although government

could not prefer one sect over another, it might provide aid to all religions equally?

Table 5.1 Conduct Not Protected by the Freedom of Religion Clause*

Conduct not protected Case

Multiple marriages in violation of state polygamy laws (crime of bigamy) Reynolds v. United States, U.S. Supreme Court (1879) 98 U.S. 145,

25 L.Ed. 244

Handling poisonous snakes in a public place in violation of state law as part

of a religious ceremony

State v. Massey, North Carolina Supreme Court (1949) 229 N.C. 734,

51 S.E.2d 179

Requirements at airports, state fairs, and so on that religious, political, and

other groups distribute or sell literature only from booths provided for that

purpose

Heffron v. International Society for Krishna Consciousness, U.S. Supreme

Court (1981) 452 U.S. 640, 101 S.Ct. 2559

Violation of child labor laws Prince v. Massachusetts, U.S. Supreme Court (1944) 321 U.S. 158,

64 S.Ct. 438

Air Force officer continued to wear his yarmulke (Jewish skullcap) after

repeated orders to remove it. He was dropped from service. Affirmed

for Air Force.

Goldman v. Weinberger, U.S. Supreme Court (1986) 475 U.S. 503,

106 S.Ct. 1310

Members of the Old Order Amish, who do not use motor vehicles but travel

in horse-drawn buggies, would not obey a state law requiring reflecting

triangles on the rear of all slow-moving vehicles. Held not exempted from

complying with this highway safety law.

Minnesota v. Hershberger, U.S. Supreme Court (1990) 495 U.S. 901,

110 S.Ct. 1918, vacating 444 N.W.2d 282

*The Freedom of Religion Clause could not be used as a defense for destroying government property [United States v. Allen ] (760 F.2d 447 [1985]); extortion and blackmail [United

States v. Starks] (515 F.2d 112 [1975]); racketeering [United States v. Dickens] (695 F.2d 765, review denied 460 U.S. 1092 [1983]); refusal to testify before a grand jury [Smilow

v. United States] (465 F.2d 802; see 409 U.S. 944 [1972]); refusal to be photographed after being arrested (United States v. Slabaugh (848 F.2d 113 [8th Cir. 1988]); putting a

logging road through an area sacred to Native American tribes [Lyng v. Northwest Indian Cemetery Protective Association] (108 S.Ct. 1319 1988]); refusal to have children vaccinated

[Jacobson v. Massachusetts ] (25 S.Ct. 358 [1905]); and refusal to participate in the Social Security system [United States v. Lee ] (102 S.Ct. 1051 [1982]), although in 1988 Congress

enacted 26 U.S.C. § 3127, which permits members of certain religious groups, such as the Amish people, to elect to opt out of the employee portion of Social Security taxes.

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132 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Some scholars believe the historic record is confused and contradictory. At the

core of the problem is one’s view of the Constitution and its role in U.S. govern-

ment. Advocates of what they assert is the original intent believe the framers’ vision

is as good today as it was 200 years ago. They believe any deviation from that view

abandons the ideals that have made this country free and great, that judges should

go strictly by what the framers intended and that any revisions must be made

through the amendment process.

On the other side, defenders of judicial activism (allowing judges to interpret

the Constitution and its amendments) say that amendments are not necessary.

Judges should be allowed to interpret the Constitution and its amendments, and if

law is changed, that is what the common law system permits. Such defenders

believe that for the document to remain true to the framers’ intent, the framers’

spirit must reach a balance with modern society realities. They suggest the framers

set out a series of ideals expressed through powers and limitations and deliberately

left details vague so those who came after could apply the ideals to their world.

Freedom of Speech Freedom of speech is the liberty to speak openly without fear of government

restraint. Implicit in this freedom is the right to hear others’ ideas. Speech includes

not only spoken words but also nonverbal, expressive conduct that conveys the

“speaker’s” beliefs, feelings, or intentions. Freedom of speech is closely linked to

freedom of the press because this freedom includes both the right to speak and the

right to be heard. In the United States, both freedoms, commonly called freedom of

expression, are protected by the First Amendment.

A generation of Americans witnessed firsthand the influence free speech had

during the Vietnam War, the civil rights movement, and elections across the coun-

try. The downside may be that a generation of Americans takes such freedom for

granted because of its continual existence. Over the decades, court opinions in free

speech cases have come from numerous perspectives, including

■ self-governance and the essential role that free speech plays in democratic

decision making; ■ freedom of speech is the only way to prove things false or true, as stated by

Justice Oliver Wendell Holmes, Jr., in his dissent in Abrams v. United States (1919): “. . . the best test of truth is the power of the thought to get itself

accepted in the competition of the market”; ■ free speech promotes autonomy and self-development, for example through

art and literature; ■ the simple distrust of the government to regulate speech.

Being able to speak out, particularly against the government, remains a corner-

stone of freedom in the United States. What free speech is there if not in opposition

to those in power? No greater right do we have in this country than that of speaking

our minds and being able to hear from others. However, even this right is not abso-

lute, and there is some speech that falls outside the protections of the First

Amendment.

Freedom of speech and the constitutional limits to it have been defined in prac-

tice by Supreme Court rulings. The First Amendment right to free speech was the

judicial activism allowing judges to interpret the

Constitution and its amendments

Freedom of speec h and express ion includes the right to speak and the right to be heard.

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Chapter 5 The First Amendment: Basic Freedoms 133

first guarantee to be made applicable to the states through incorporation in Gitlow v. New York (1925).

“The U.S. Supreme Court has consistently held that speech may not be prohib-

ited simply because some may find it offensive. Virtually every time someone is

arrested for this, assuming there is no other criminal behavior, the case is either

dismissed before trial or the person is convicted at trial and wins on appeal”

(Mayes, 2010).

Although it’s unlawful to shout “fire” in a crowded theater, some messages that

may incite panic are actually protected speech. Fogel v. Collins (2008) involved a Grass Valley (California) police sergeant who received an anonymous phone call

about a parked Volkswagen van that had a message that frightened the caller

painted on the back window. The message, printed in block letters said, “I am a

*@!%#$ suicide bomber terrorist! Pull me over! Please, I dare ya!” A second message

read, “Allah praise the patriot act. . . . *@%#$ Jihad on the First Amendment! P.S.

W.O.M.D. on board!” The rest of the van was decorated with slogans and painting,

including a U.S. flag, which were not threatening. The investigating sergeant, who

determined that the van belonged to 22-year-old Matthew Fogel, took photos of the

van but believed the messages to be merely political satire. He called his captain

who believed, in contrast, that a criminal act had been committed and ordered the

sergeant to treat the matter as a bomb threat.

Although no bomb was found, the officers arrested Fogel and had the van

towed. Fogel was charged with “willfully threatening to commit crime” and “use

of offensive words in a public place which are inherently likely to provoke an

immediate violent reaction.” The prosecutor declined to prosecute, and Fogel was

released the next day. Fogel then filed a civil lawsuit against the Grass Valley Police

Department, the sergeant, the captain, and other officers, alleging they violated his

rights under the First, Fourth, and Fourteenth Amendments, as well as for false

arrest and assault and battery. The defendants, the police department and the city

filed a motion for summary judgment. The district court found that the police offi-

cers could have believed the First Amendment did not protect the message and

dismissed the case. Fogel appealed to the Ninth Circuit Court, which found that his

messages taken in context were political rhetoric, not directed at anyone in particu-

lar, and not a true threat; as such, his “speech” was protected. Political rhetoric criti-

cizing the government is exactly what the First Amendment was intended to

protect. Nonetheless, the Ninth Circuit affirmed the district court’s granting of

summary judgment in favor of the officers based on qualified immunity, reasoning

that at the time of the incident, not all police officers would have believed Fogel’s

speech was protected by the First Amendment.

Given the same set of circumstances, some officers might treat such messages

as a real threat whereas others might see it as a political message. A true threat

is not protected speech; political hyperbole is. This distinction is what makes

First Amendment cases difficult; they are fact dependent. Facts provide context:

“In a similar situation, it is prudent for officers to consider the totality of the

circumstances and the contextual display of the message. Err on the side of

being safe if presented with circumstances regarding a suspect’s speech that

appear to be a terrorist threat. Follow your agency’s protocol for dealing with

bomb or terrorist threats” (Scarry, 2008a). Although this ruling applies only to

officers in the Ninth Circuit, Scarry cautions that the Fogel case now “set[s]

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134 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

precedence and put[s] officers on notice that such speech is protected under the

First Amendment.”

In United States v. Stevens (2010), the Supreme Court ruled that federal statute 18 U.S.C. § 48, which criminalized the commercial production, sale, or possession

of depictions of cruelty to animals, was an unconstitutional abridgment of First

Amendment free speech rights. In 2004, Robert Stevens was indicted under

18 U.S.C. § 48 for creating and selling three videotapes, two of which depicted pit

bulls engaged in dog fighting. The third tape showed a pit bull attacking a

domestic pig as part of the dog’s training to catch and kill wild hogs. Although

Stevens’s criminal prosecution concerned only the three tapes, he had made

$20,000 in 2.5 years from selling nearly 700 videos. And although Stevens was not

accused of engaging in animal cruelty himself, nor of shooting the footage from

which the videos were created, the footage in each video was accompanied by

introductions, narration, and commentary by Stevens, as well as literature written

by Stevens.

Stevens filed a motion to dismiss the indictment, arguing that the federal statute

abridged his right to freedom of speech under the First Amendment. The district

court denied his motion in November 2004, and in January 2005, Stevens was con-

victed by a jury. Stevens appealed, and the Third Circuit vacated his conviction,

holding that 18 U.S.C. § 48 did, in fact, violate the First Amendment. The court

stated that dog fighting, or the use of dogs to hunt hogs, may be made illegal to

protect animals from cruelty. However the law in question that prohibited the

depiction of animal cruelty violated the First Amendment by creating a new cate-

gory of speech not protected by the free speech provision of the amendment. Thus,

because Section 48 is substantially overbroad, it is invalid under the First Amend-

ment, affirming the Third District Court decision.

In another 2010 freedom of speech case, Holder v. Humanitarian Law Project, the Supreme Court upheld a portion of the USA Patriot Act that makes it a crime to

provide “material support” to any group that has been designated by the Attorney

General as a “foreign terrorist organization.” This case pitted free speech against

national security, upholding previous rulings that the government can ban orga-

nizations from providing material support to groups designated as terrorist

groups, even if the support is in the form of training materials to peacefully

resolve conflict.

In this case, two groups designated as terrorist organizations by the Attorney

General, sought to provide “material support” to the Partiya Karkeran Kurdistan

(PKK) and the Liberation Tigers of Tami Eelam (LTTE), which aim to establish inde-

pendent states for Kurds in Turkey and Tamils in Sri Lanka, respectively. At issue

was whether certain terms found within statute 18 U.S.C. 2339B(a)(1), which pro-

hibits providing certain types of aid to known terrorist organizations, unconstitu-

tionally violate the First and Fifth Amendments by restricting political speech and

including overly vague provisions. The Humanitarian Law Project argued a strict

scrutiny standard should be applied to the statute because it violates the Fifth

Amendment because of vagueness and infringes on First Amendment rights to

expression of political speech and freedom of association (Vernon and Wu, 2010).

Strict scrutiny is the legal standard applied to due-process analysis of fundamen-

tal rights, such as freedom of speech, in which the state must establish it has a

compelling government interest that justifies and necessitates the law in question

strict scrutiny the legal standard applied to due-process

analysis of fundamental rights,

such as freedom of speech, in

which the state must establish it

has a compelling government

interest that justifies and

necessitates the law in question

and that the law is narrowly

tailored to fit that interest; a high

standard and difficult to defend

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Chapter 5 The First Amendment: Basic Freedoms 135

and that the law is narrowly tailored to fit that interest. As such, strict scrutiny is a

high standard and difficult to defend. However, the government maintained that

the statute was constitutional, regulating conduct rather than speech, so the statute

need only pass intermediate scrutiny.

Although multiple lower court rulings had sided in favor of the Humanitarian

Law Project by finding the statute unconstitutionally vague, on June 21, 2010, the

Supreme Court held, by a 6–3 vote, that the statute’s prohibitions on “expert

advice,” “training,” “service,” and “personnel” were not vague, nor did they vio-

late speech or associational rights as applied to the Humanitarian Law Project’s

intended activities. Chief Justice John Roberts, writing for the majority, reversed

the Court of Appeals on the vagueness claims and held that although strict scru-

tiny apparently applied, even support in the form of intangibles such as human-

rights training freed up resources that could then be reallocated to the group’s

terrorist activities, a national security concern sufficient to trump the First

Amendment interests of the plaintiffs. Thus, the Court affirmed in part, reversed

in part, and remanded. Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia

Sotomayor dissented.

The ruling was considered a victory for the Washington Legal Foundation

(WLF), which filed a brief urging the Court to uphold the law. The Court agreed

with WLF that the statute is not impermissibly vague and does not violate the First

Amendment rights of individuals who wish to support humanitarian work con-

ducted by terrorist groups. The Court held that the First Amendment does not

prevent Congress from barring actions taken to aid terrorist groups simply because

the actions may have an expressive component, when it does so based on a reason-

able conclusion that the actions are likely to promote the groups’ terrorist goals.

The Supreme Court’s ruling on this issue will help determine how domestic citi-

zens and organizations interact, if at all, with designated terrorist organizations in

the future, as well as whether courts will interpret similar statutory provisions as

content-based regulations of speech, or as regulations of conduct that only inciden-

tally affect speech.

Symbolic Expression

Black’s Law Dictionary (2006) defines symbolic speech as “conduct that expresses opinions or thoughts, such as a hunger strike or the wearing of a black armband.”

The nature and context of the “speech” is important to determining what symbolic

expression will be given the protection of the First Amendment; that is, was the

conduct “. . . sufficiently imbued with elements of communication . . . ”? (Spence v. State of Washington, 1974). It is easier for the government to regulate or punish symbolic speech, not because of the speech itself but rather because the conduct

expressing the message is proscribable. Regulation is aimed at the conduct, not the

message, which is much easier to restrict.

Legal experts note, “Even though giving a police officer the finger may be a

rude and ill-advised gesture, it is not against the law” (Mayes, 2010). In Clackamas,

Oregon, Robert Ekas filed a federal lawsuit to defend what he says is his First

Amendment right to express himself by flipping off police officers. Ekas stated, “I

did it because I have the right to do it. We all have that right, and we all need to test

it. Otherwise we’ll lose it” (Mayes, 2010).

symbolic speech a form of speech that expresses an idea or

emotion without use of words,

such as burning one’s draft card,

bra or flag, or picketing

Symbolic acts are included within the prot ect ion of the First Amendment.

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136 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Because even how one chooses to dress and groom is expression, the length of

an officer’s hair has been litigated by the Supreme Court in Kelley v. Johnson (1976). Justice Rehnquist held that in an organizational structure that necessitated

uniformity, a requirement on hair length did not violate the officer’s constitutional

rights because it was not arbitrary and had a “rational connection between the reg-

ulation . . . and the promotion of safety of persons and property.”

Symbolic speech was the focus in United States v. O’Brien (1968), in which the Court considered what actions would be considered constitutionally protected.

The case involved draft-card burning and was used by the Court to develop a four-

part test when it supported the constitutionality of a law prohibiting such burning.

Chief Justice Burger stated,

We cannot accept the view that an apparently limitless variety of conduct can be

labeled “speech” whenever the person engaging in the conduct intends thereby

to express an idea. . . . A government regulation is sufficiently justified if it is

within the constitutional power of the government; if it furthers any important

or substantial governmental interest; if the governmental interest is unrelated to

the suppression of free expression; and if the incidental restriction on alleged

First Amendment freedoms is no greater than is essential to the furtherance of

that interest.

In this case, the Court held that the selective service requirement regarding draft

cards met these requirements, and the conviction against O’Brien was upheld.

Lieutenant Johnston was in charge of the vice unit.

Recently, one of his undercover officers acting as a

prostitute was solicited by the police chief’s

brother. The solicitor was arrested, but the charges

were later dropped. A local television station made

the arrest public. The chief’s brother is also a mem-

ber of the local civilian review board, which inves-

tigates allegations of police misconduct.

The lieutenant was upset by the charges being

dropped because it is his belief that members of the

board should be of the highest moral character and

integrity. He also lives in the city and has an inter-

est as a citizen regarding city government. Because

of this he attended the next public meeting of the

civilian review board, meetings he had attended

numerous times in the past and at which he was

well known by the regular attendees.

The topic of moral integrity came up during open

forum. The lieutenant added to this discussion a

rather forceful opinion regarding the chief’s brother

and his arrest. After the meeting, the lieutenant was

approached by the brother and told, “I know who

you are, and there will be payback.”

The next week the lieutenant was transferred to

a much less-desirable position, with no reason

given for the transfer. The lieutenant filed suit

claiming that he was transferred because of his

comments at the meeting, and that this violated his

right to free speech.

■ Was the lieutenant punished for speaking out at the meeting?

■ Had the lieutenant not been employed by the city, would he have been punished for the same speech?

■ Would your opinion change if the lieutenant were in uniform and made his statements as such, rather than as a city resident? Should it matter?

Constitutional Law in ACTION

CASE IN BRIEF

United States v. O’Brien (1968)

ISSUE Is it a violation of the Freedom of Speech to punish

a person for burning their draft

card?

RULING No. The Court ruled that punishing this behavior was

constitutional because it was

aimed not at the message but,

instead, at the conduct used

to convey that message. The

government had a compelling

interest to protect in preserving

the draft and punishing a person

for destroying their draft card

helped advance the government’s

interest.

e n

g a

g e

L e

a rn

in g

2 0

1 5

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Chapter 5 The First Amendment: Basic Freedoms 137

Many symbolic acts, although often highly controversial, fall under First Amend-

ment protection, including flag desecration, cross burning, nude dancing, and the

display of yard signs.

Flag Burning Two Supreme Court cases involving symbolic expression dem-

onstrate the centrality of such issues and the danger in assuming easy answers to

First Amendment dilemmas. In 1969, in Street v. New York, after an assassination attempt on a civil rights leader, Sidney Street burned a flag in protest and was

arrested for “malicious mischief,” a New York law that made acting out verbally

or symbolically a crime. The Warren Court did not act on the flag-burning issue

in this case, holding only that his words were protected speech, but suggested

that the burning of the flag could be prosecutable, even though it, too, was an act

of protest.

The landmark case in which flag burning as symbolic speech was examined is

Texas v. Johnson (1989). Gregory Johnson, a demonstrator at the 1984 Republican National Convention in Dallas, unfurled a U.S. flag and set it on fire. While the flag

burned, the protesters chanted, “America, the red, white and blue, we spit on you.”

Johnson was convicted of violating a Texas law prohibiting “the desecration of

venerated objects,” including the national flag. The Supreme Court ruled, “If there

is a bedrock principle underlying the First Amendment, it is that the government

may not prohibit the expression of an idea simply because society finds the idea

itself offensive or disagreeable.” Justice William Brennan, Jr., contended that noth-

ing in the courts’ precedents suggests that the state may foster its own view of the

flag by prohibiting expressive conduct relative to it. Justice Kennedy concurred,

stating, “The ruling [was simply] a pure command of the Constitution. It is poi-

gnant and fundamental that the flag perplexes those who hold it in contempt.”

Four justices dissented, including Chief Justice Rehnquist, who wrote an emotional

opinion stressing that millions of Americans have “a mystical reverence” for the

flag. Public reaction to the ruling was strong and highly negative.

Members of Congress and political candidates continue to demand constitu-

tional action to overrule the Court; some propose an amendment to the First

Amendment to deny flag burning as free speech. In 1989, Congress passed a flag

protection act that was short lived; on June 11, 1990, the Supreme Court declared

the act unconstitutional as an unwarranted restriction on symbolic expression.

This issue remains volatile, and efforts to enact flag-desecration amendments

have continued.

Cross Burning and Bias or Hate Crimes In 1989, St. Paul, Minnesota, like a

number of other cities, passed an ordinance against various forms of expression

based on bias or hatred to send a message that crimes against people because of

their race or religion would not be tolerated. Several months later, in June 1990, a

teenager was arrested under the ordinance and charged with burning a cross at the

home of the only black family in a St. Paul neighborhood.

A county district judge initially held the ordinance unconstitutional as a viola-

tion of the First Amendment. The Minnesota Supreme Court, however, overturned

this decision and upheld the ordinance, maintaining that it could be narrowly

interpreted to ban acts of bigotry that arouse anger in others and still protect free

speech. The state court said, “Burning a cross in the yard of an African American

family’s home is deplorable conduct that the City of St. Paul may without question

CASE IN BRIEF

Texas v. Johnson (1989)

ISSUE Is burning the U.S. flag a form of protected speech?

RULING Yes. The State of Texas used the law to restrict the

freedom of speech (expression)

by punishing a person’s

message. The law did not meet

“most exacting scrutiny” because

the interest asserted was not

compelling.

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138 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

prohibit. The burning of a cross is itself an unmistakable symbol of violence and

hatred based on virulent notions of racial supremacy.”

The case was subsequently appealed to the U.S. Supreme Court, which held that

the ordinance was unconstitutional (R.A.V. v. City of St. Paul, 1992). Justice Antonin Scalia delivered the Court’s acceptance of the Minnesota court’s narrowing of the

ordinance to apply only to so-called fighting words, which Scalia termed constitu- tionally proscribable. Even so, the Court found the ordinance to be unconstitutional on its face because “it prohibits otherwise permitted speech solely on the basis of

the subjects the speech addresses.” Cross burning and other reprehensible acts,

Scalia argued, could be prosecuted under a variety of existing statutes. These means

were sufficient for St. Paul to prevent such behavior “without adding the First

Amendment to the fire.”

Balancing what the Constitution means and what the public wants it to mean

at the time is often difficult to effectively accomplish. What the Constitution means

to one person is not always what it means to another person. This difference of

opinion is why lawsuits occur and why the system is set up to decide which per-

spective will prevail in a particular case. As the times, politics, and values of the

United States change, so do legal arguments, holdings and precedents. In Virginia v. Black (2003), the Supreme Court held that a law banning cross burning as a hate crime itself is unconstitutional because the law presumes hate is the purpose. With-

out more evidence to prove a hate crime, cross burning is deemed a protected form

of speech.

Nude Dancing In 1991, the Supreme Court took up the question of nude danc-

ing as a form of symbolic speech. The case involved nude dancers in the Kitty Cat

Lounge in South Bend, Indiana, who were arrested for violating the state’s public

indecency law. A federal appeals court in Chicago had ruled the dancing was inher-

ently expressive, communicating an emotional message of eroticism and sensuality

and that the ban, therefore, violated the First Amendment. Five Supreme Court

Justices voted to reverse but were unable to isolate a single reason for the reversal.

The essence of the ruling in Barnes v. Glen Theatre (1991) was that requiring dancers to wear at least pasties and a g-string did not violate their freedom of speech. It

thus gave local prosecutors a new option to restrict totally nude entertainment in

their communities.

Civil liberty lawyers, who had feared that the Court might apply a sweeping

analysis that could challenge constitutional protection for many forms of artistic

expression, were relieved by the Court’s relatively narrow approach. Chief Justice

Rehnquist for the majority made clear that nude dancing enjoyed some marginal

First Amendment protection. However, because of the state’s interest in promot-

ing order and morality, nude dancing could be prohibited, just as could other forms of public nudity. He observed that the statute’s pasties and g-string require-

ment was a modest imposition and the bare minimum necessary to achieve the

state’s purpose.

Yard Signs Another area of expression some city ordinances seek to limit is use

of yard signs. Many cities prohibit such signs altogether. Other cities have restric-

tions on the size or number of signs that can be placed in a person’s yard or window.

Such restrictions were tested in City of Ladue v. Gilleo (1994), a case involving Margaret Gilleo, a resident of an exclusive suburb of St. Louis, Missouri. Gilleo put

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Chapter 5 The First Amendment: Basic Freedoms 139

up an antiwar sign in the second-floor window of her home that read “Peace in the

Gulf.” Ladue’s city ordinance prohibits all signs within its boundaries except for

real estate signs, road and safety hazards, inspection signs, public transportation

markers, and business signs in commercially zoned areas. According to officials, the

ordinance is intended to protect the community’s aesthetics. Lower courts ruled for

Gilleo, saying Ladue was wrong in favoring some signs over others, for example,

real estate signs over political protest signs.

The Supreme Court agreed. In June 1994, a unanimous Court ruled that cities

may not prohibit residents from putting political or personal signs in their yards.

Justice John Paul Stevens, writing for the Court, declared, “A special respect for

individual liberty in the home has long been part of our culture and our law. That

principle has special resonance when the government seeks to constrain a person’s

ability to speak there.”

The fact that some of these cases made their way to any court, especially the

Supreme Court, makes one wonder why? Often, differing political perspectives are involved, or an ongoing issue between a city, for example, and an individual seen

as a “troublemaker.” Sometimes, government officials adhere to a strict interpreta-

tion policy and do not anticipate the implications of their actions. Sometimes, gov-

ernment believes the issue is worthy of the time and cost to pursue. Sometimes, the

results are not anticipated, with law being promulgated that was not the govern-

ment’s intention. These outcomes illustrate why any government employee needs

a working knowledge of constitutional law.

Restrictions on Freedom of Speech

An important understanding of the Constitution is that rights are not absolute, and this circumstance is the case with freedom of speech. In balancing personal interests

and the public good, reasonable limits—that is, when government has a legitimate

interest—are placed on where and when things can be said and, occasionally, on

what can be said.

Whether symbolic or “pure” speech, the level of protection given to such

speech—in other words, the level of government restriction dictating whether the

speech is permissible or whether it is punishable—depends on what is being regu-

lated. If the regulation or punishment is aimed at the actual content of the message, then strict scrutiny is the standard applied. If, on the other hand, the regulation is

“content neutral,” meaning it restricts not the message or the viewpoint, per se, but rather how, when, or where the message can be delivered, then the courts will

apply a midlevel analysis or scrutiny. This test examines whether: (1) the restriction

is justified without reference to the content of the regulated speech, (2) the law is

narrowly tailored to serve a significant government interest, and (3) open channels

for the communication of the information exist (Clark v. Community for Creative Non- Violence, 1984). In some specific areas, the Court has developed a separate test, such as in the area of speech that advocates unlawful conduct.

Restrictions on speech have occurred most often in time of war and national

emergency. The Alien and Sedition Acts of 1798 were the first efforts by Congress

to specifically limit actual speech. These acts were passed when war with France

threatened and the nation’s security was considered to be directly affected. They

empowered the President to expel “dangerous” aliens and provided for indicting

MYTH As a free citizen, you may

say whatever, whenever, and

wherever you want without fear

of punishment or restriction from

the government.

REALITY Free speech, although a funda-

mental right, is not absolute. The

government may restrict or punish

certain speech.

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140 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

those who should “unlawfully combine or conspire” against the administration by

writing or speaking “with intent to defame” the government, the Congress, or the

President. Although these laws were never tested in court and expired after several

years, what the outcomes might have been if tested remain a source of scholarly legal debate.

The first specific test of how far government can limit speech occurred with the

Espionage Act (1917) passed by Congress during World War I. This act made illegal

interference with recruiting or drafting soldiers or any act that adversely affected

military morale. The terms used were obviously broad in interpretation. In Schenck v. United States (1919), the Court upheld the conviction of a socialist indicted under the Espionage Act on the grounds that freedom of speech is not absolute. When

Charles Schenck was charged with espionage for distributing flyers that encour-

aged young men to resist the draft, his defense asserted such an act of expression

was protected speech. Justice Holmes, however, disagreed, stating, “When a nation

is at war, many things that might be said in time of peace are such a hindrance to

its effort that their utterance will not be endured.” This case is an example of when

the good of the greater whole outweighs the rights of the individual. Delivering the

Court’s unanimous opinion, Justice Holmes went on to say,

The character of every act depends upon the circumstances in which it is done.

The most stringent protection of free speech would not protect a man in falsely

shouting fire in a theater and causing a panic. . . . The question in every case is

whether the words used are used in such circumstances and are of such a nature

as to create a clear and present danger that they will bring about the substantive

evils that Congress has a right to prevent.

The Court began to apply this “clear and present danger” test to subsequent

cases involving freedom of speech. Another test of what speech is protected was

Gitlow v. New York (1925), in which the Court held that “a state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to

the public welfare, tending to corrupt public morals, and incite to crime, or disturb-

ing the public peace.” Benjamin Gitlow had been indicted under a New York State

law that prohibited the advocacy of the overthrow of the government by force or

violence. In 1940, Congress enacted the Smith Act, which declared advocating the

overthrow of the government by force or violence to be unlawful. Being able to

speak against the government has always been recognized as an important right of

the people. However, as continuously noted, no right is absolute.

The Court continues to address what is and is not protected speech.

In another speech case, leaders of the Communist Party were convicted under

the Smith Act and appealed on the grounds that the Act was unconstitutional. The

Court upheld the Act’s constitutionality in deciding Dennis v. United States (1951) but not on the grounds of the “clear and present danger” doctrine. Instead, the

majority adopted a standard put forward by Judge Learned Hand: “Whether the

gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free

speech as is necessary to avoid the danger.” This standard has sometimes been

called the “clear and probable danger” test, the interpretation being that when

the government can show that a serious “evil” is at hand, the less probable the

“evil” needs to be. In other words, the more serious the speech-advocated evil is,

the less demanding the courts will be on the possible occurrence to limit the speech.

“clear and present danger” test the test of whether words are so potentially

dangerous as to not be protected

by the First Amendment

“clear and probable danger” test the test of whether the gravity of the evil

discounted by its improbability

justifies an invasion of free

speech necessary to avoid any

danger

Congress has pass ed laws limiting speec h that advocates overthrowing the government by force.

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Chapter 5 The First Amendment: Basic Freedoms 141

In Brandenburg v. Ohio (1969), the Court adopted a new test—the “imminent lawless action” test. Although government has a justifiable interest in preventing

lawless conduct, the mere discussion of such conduct would not necessarily cause

imminent lawless action. In Brandenburg, the Court created a three-part test that the government must meet if certain communication is not to be protected by the First

Amendment: (1) the speaker subjectively intended incitement, (2) in context, the

words used were likely to produce imminent, lawless action, and (3) the words

used by the speaker objectively encouraged and urged incitement.

This approach, modified by other cases, has been termed the balancing test, a

position taken by the appellate courts to balance society’s need for law and order

and for effective law enforcement against the privacy rights of individuals. Indeed,

a crucial matter with respect to interpreting the Constitution and understanding

the conflicting rights and obligations contained within is the con-

cept of substantive due process—the tension between legitimate

state interests (e.g., promoting the public health, welfare, and

safety) versus legitimate individual liberty interests (e.g., right to

privacy)—and how these interests must be balanced, a theme

consistently addressed throughout this text.

Because courts are political institutions and the U.S. legal sys-

tem is adversarial by design, every case requires a choice between

competing social interests. Allowed discretion, judges weigh con-

flicting social claims, determine each party’s rights and obligations

and make choices to distribute benefits and burdens based on the judges’ values and

attitudes: “This interest-balancing perspective readily translates into judicial self-

restraint. When the constitutionality of a law is called into question, judges in a

democratic society are duty-bound to respect the balance among interests struck by

the statute for the logical reason that, having been passed by a majority of legislators,

it presumably satisfies more rather than fewer interests” (Ducat, 2010, pp. 81–82).

When applying the balancing approach to First Amendment free speech cases,

the Supreme Court strives to strike a balance between the value of liberty of expres-

sion and the demands of ordering a free society. In Gertz v. Robert Welch, Inc. (1974), the Court stated, “Under the First Amendment there is no such thing as a false

idea . . . however pernicious an opinion may seem, we depend for its correction not

on the conscience . . . but on the competition of ideas.”

The preferred freedoms approach, a position originally set forth by Justice

Harlan F. Stone, has been important in constitutional law since World War II. This

approach stresses that civil liberties have a preferred position among other consti-

tutional values because they are requisite to a democracy. Under this concept, the

burden lies largely with the government to prove that clear and present danger

exists when a freedom is exercised. This concept tends to change the balance sought

in judicial decisions, as shown in Figure 5.2.

Some Supreme Court Justices, notably Black and William O. Douglas, have

argued that free speech is an absolute right, by definition, and not subject to balanc-

ing. Justice Black, in Konigsberg v. State Bar of California (1961), stated, “I do not subscribe to that doctrine [the balancing approach] for I believe that the First

Amendment’s unequivocal command that there shall be no abridgement of the

rights of free speech and assembly shows that the men who drafted our Bill of

Rights did all the ‘balancing’ that was to be done in the field.”

“imminent lawless action” test a three-part test that the government must meet if

certain communication is not to

be protected by the First

Amendment: (1) the speaker

subjectively intended incitement,

(2) in context, the words used

were likely to produce imminent,

lawless action, and (3) the words

used by the speaker objectively

encouraged and urged

incitement; replaced the “clear

and present danger” test

balancing test a position taken by the appellate courts to

balance the needs of society for

law and order and for effective

law enforcement against the

privacy rights of individuals

preferred freedoms approach a position that stresses that civil liberties are to

take precedence over other

constitutional values because

they are requisite to a democracy

The “clear and pres ent danger” tes t was replaced by the “imminent lawless action” tes t to det ermine wh en speec h should not be prot ect ed by the First Amendment.

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142 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

In opposition to this view and in support of the balancing approach, Justice

Harlan, in the same case, wrote, “We reject the view that freedom of speech and

association . . . as protected by the First and Fourteenth Amendments, are ‘abso-

lutes,’ not only in the undoubted sense that where the constitutional protection

exists it must prevail, but also in the sense that the scope of that protection must be

gathered solely from a literal reading of the First Amendment.”

The difficulty of the absolute approach to free speech was shown in 1978, when

a group of U.S. Nazis sought to hold a rally in Skokie, Illinois. The municipality

denied them a permit on the grounds that the Nazi rally would incite hostility in

the largely Jewish population, which included many survivors of Nazi concentra-

tion camps. Lawyers from the ACLU represented the Nazis, arguing that Skokie

laws limiting public demonstrations were unconstitutional. A U.S. Court of Appeals

agreed with the ACLU, and the Supreme Court granted certiorari via an application

to stay the injunction and ruled, per curium, that the state court must give strict

procedural safeguards to a denial of First Amendment rights, which includes

immediate appellate review (National Socialist Party v. Skokie, 1977). Although many Americans were outraged at the defense of those they considered enemies of free

speech, this case illustrated constitutional freedom in action.

The importance of freedom of speech was highlighted during the Free Speech

Movement of student protesters in the 1960s and 1970s. In the mid-1960s, the Uni-

versity of California, Berkeley, banned political activity on campus. Students

When rights and needs conflict, preference is given to the First Amendment rights.

The rights of people seeking to

exercise their First Amendment

right to . . .

All other rights

Figure 5.2 The Preferred Freedoms Approach

a d sw

o rt

h /C

e n g a g e L

e a rn

in g

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Chapter 5 The First Amendment: Basic Freedoms 143

wanted to raise money and recruit other students to do civil rights work, but

Berkeley officials said they could not. The students rebelled, claiming their First

Amendment rights were being denied. The ensuing riot at Berkeley became a cata-

lyst for years of political unrest on the country’s college campuses. Ultimately,

freedom of speech was established in most colleges and universities.

Exclusion of groups with political agendas who want to speak at shopping

malls is also a controversial area because such malls, although standing on private

property, are essentially public places. Since 1968, when the U.S. Supreme Court

first said the public had some speech rights in malls, the issue has gone back and

forth between civil libertarians and mall owners, with the current trend being that

private property owners can restrict speech but not on the public sidewalks around

the property.

Snyder v. Phelps (2011) was the highly publicized funeral protest case in which members of Westboro Baptist Church, who were openly critical of the military and

its tolerance toward homosexuality, picketed the funeral of deceased Marine Lance

Cpl. Matthew Snyder. Standing on public land approximately 1,000 feet from where

the funeral was being held, the picketers peacefully displayed signs that read,

“Thank God for Dead Soldiers,” “Fags Doom Nations,” “America Is Doomed,” and

“You’re Going to Hell.” Snyder’s family filed suit against Westboro for defamation,

invasion of privacy, and the intentional infliction of emotional distress for display-

ing such signs at the funeral.

A jury held Westboro liable for millions of dollars in compensatory and puni-

tive damages. Westboro appealed, and although the District Court reduced the

punitive damages award, it left the verdict otherwise intact. However, the

Fourth Circuit reversed, ruling that Westboro’s statements were entitled to pro-

tection under the First Amendment because those statements were on matters of

public concern, were not provably false, and were expressed solely through

hyperbolic rhetoric.

The importance of Snyder v. Phelps is that it shows: (1) the First Amendment can protect someone from state tort liability for what they have said, (2) matters of

“public concern,” which are defined as those relating to issues of social, political, or

other community concerns, hold a high place in the protected speech area, and

(3) how contextual free speech issues are when determining what can and cannot

be restricted in reference to “time, place, and manner.” An interesting side note: at

the time of this opinion, 43 states and the federal government had laws restricting

protests at funerals.

A continuing and intensely controversial area surrounds the abortion issue, and

antiabortionists’ claim that their demonstrations outside abortion clinics are justi-

fied, constitutional expressions of free speech. The courts, however, have set limits

on such expression. In Madsen v. Women’s Health Center, Inc. (1994), a state court enjoined Madsen and other antiabortion protesters from blocking or interfering

with public access to a Florida abortion clinic and from abusing, intimidating, or

touching people who enter or leave the clinic. When the clinic returned to court and

argued that protesters were still limiting access to the clinic, even greater restric-

tions were ordered to provide a larger buffer zone around the clinic and even

around the residences of clinic employees.

When Madsen and the other demonstrators challenged the injunction on First

Amendment grounds, the Florida Supreme Court upheld the injunction in its

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144 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

entirety. The U.S. Supreme Court, however, granted the protesters’ petition for

certiorari and found parts of the injunction in violation of the Constitution:

In sum, we uphold the noise restrictions and the 36-foot buffer zone around the

clinic entrances and driveway because they burden no more speech than neces-

sary to eliminate the unlawful conduct targeted by the state court’s injunction.

We strike down as unconstitutional the 36-foot buffer zone as applied to the

private property to the north and west of the clinic, . . . the 300-foot no-approach

zone around the clinic, and the 300-foot buffer zone around the residences,

because these provisions sweep more broadly than necessary to accomplish the

permissible goals of the injunction. Accordingly, the judgment of the Florida

Supreme Court is affirmed in part, and reversed in part.

Sometimes, multiple freedoms are at issue in a legal dispute, as in the preceding

abortion issue, when not only freedom of speech but also freedom to assemble was

involved. In another example, Rosenberger v. Rector and Visitors of the University of Virginia (1995), both freedom of speech and the Establishment Clause were involved (Ducat, 2010, p. 833). The University of Virginia, a state school, had a policy of using

money from the Student Activity Fund (SAF), derived from mandatory student

fees, to pay outside vendors to cover printing costs for a variety of publications

produced by student organizations. The university, however, denied authorization

for payment of printing costs for “Wide Awake,” a newspaper put out by a Chris-

tian student group, on the grounds that the payments would implicate the school

in promoting a religion.

Rosenberger, a founder of the Christian group, sued the university, arguing

that the refusal of payment violated freedom of speech. Both the federal district

court and the federal appeals court ruled in favor of the school, concluding that

the payment withholding was necessary to comply with the dictates of the Estab-

lishment Clause. Rosenberger then petitioned for certiorari, which the Supreme

Court granted.

As part of its ruling, the Court declared that no violation of the Establishment

Clause occurs when a public university grants access to its facilities, including com-

puter and printing facilities, on a religion-neutral, first-come-first-served basis to a

wide spectrum of student groups. Therefore, there is no difference of constitutional

significance between a school using its funds to operate a facility where a religious

student organization can itself use a computer, printer, or copy machine to generate

speech with a religious content or viewpoint and a school paying a third-party

contractor to operate the facility on its behalf. In delivering the opinion of the

Court, Justice Kennedy stated,

Government may not regulate speech based on its substantive content or the

message it conveys. . . . In the realm of private speech or expression, government

regulation may not favor one speaker over another. . . . Discrimination against

speech because of its message is presumed to be unconstitutional. . . .

There is no Establishment Clause violation in the University’s honoring its

duties under the Free Speech Clause. The judgment of the Court of Appeals

must be, and is, reversed.

Computers and technology continue to pose new challenges to the law and its

interpretation. In Reno v. American Civil Liberties Union (1997), the Supreme Court

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Chapter 5 The First Amendment: Basic Freedoms 145

struck down part of the 1996 Federal Communications Decency Act (CDA) as a

vague, overbroad restriction on speech. The law made a felony of displaying

obscene or “indecent” material on a telecommunications device, in this case the

Internet, so that it might be made available to minors.

Another case involving technology and restrictions on speech occurred when

California attempted to pass a law prohibiting the sale or rental of violent video

games to minors (Brown v. Entertainment Merchant’s Association, 2011). Members of the video-game and software industries brought suit against the California gover-

nor, Edmund Brown, challenging the constitutionality of the law and arguing that

it tread on speech that was shielded by the First Amendment. The Supreme Court

agreed, with Justice Scalia delivering the opinion of the Court:

We have no business passing judgment on the view of the California Legislature

that violent video games (or, for that matter, any other forms of speech) corrupt

the young or harm their moral development. Our task is only to say whether or

not such works constitute a “well-defined and narrowly limited clas[s] of

speech, the prevention and punishment of which have never been thought to

raise any Constitutional problem,” (the answer plainly is no); and if not,

whether the regulation of such works is justified by that high degree of neces-

sity we have described as a compelling state interest (it is not). Even where the

protection of children is the object, the constitutional limits on governmental

action apply.

California’s legislation straddles the fence between (1) addressing a serious

social problem and (2) helping concerned parents control their children. Both

ends are legitimate, but when they affect First Amendment rights they must be

pursued by means that are neither seriously underinclusive nor seriously

overinclusive. See Church of Lukumi Babalu Aye, Inc. v. Hialeah. . . . As a means of protecting children from portrayals of violence, the legislation is seriously

underinclusive, not only because it excludes portrayals other than video

games, but also because it permits a parental or avuncular veto. And as a

means of assisting concerned parents it is seriously overinclusive because it

abridges the First Amendment rights of young people whose parents (and

aunts and uncles) think violent video games are a harmless pastime. And the

overbreadth in achieving one goal is not cured by the underbreadth in achiev-

ing the other. Legislation such as this, which is neither fish nor fowl, cannot

survive strict scrutiny.

What is indecent and what should be restricted as unprotected speech con-

tinue to spur differences of opinion in and out of the courtroom, not because the

courts are too conservative or necessarily prudish, but because society’s norms

keep changing. What was once considered inappropriate, in poor taste, or even

obscene a decade ago can now be heard nightly on prime-time television and

viewed in movies that younger viewers are permitted to see. Determining the

boundaries of unprotected speech is based on tradition and history, with certain

“well defined and narrowly limited” classes of speech that fall outside the perim-

eter of constitutional protection. A common theme in free speech cases is to pro-

tect even the outer limits of speech, thereby ensuring that the “core” of the

freedom is protected. If it is a close call, the Court will most likely rule in favor of

protecting the speech.

CASE IN BRIEF

Brown v. Entertainment

Merchant’s Association (2011)

ISSUE Is it constitutional for a state to bar the sale of violent

video games to minors?

RULING No. The First Amend- ment protects video games

because, like songs, books, and

movies, video games communi-

cate a message. The state law

is a content-based restriction

on speech and cannot meet the

strict scrutiny standard.

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146 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

In free speech areas such as fighting words, obscenity, picketing or demon-

strating, symbolic speech, and loyalty oaths, the courts have also had to consider

the various interests of society in their interpretations and applications of the

Constitution.

The Supreme Court defines fighting words as those “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowl-

edge, inherently likely to provoke violent reaction” (Cohen v. California, 1971) or “‘[words] which by their very utterance inflict injury or tend to incite an immediate

breach of the peace’” (Lewis v. City of New Orleans, 1974). It is important to note the higher level of tolerance expected in police officers: “Many state courts have

imposed higher standards for words directed at police, reasoning that police offi-

cers are expected to exercise greater restraint when foul, insulting language is

directed toward them” (Gardner and Anderson, 2012, p. 224). However, direct and

outright threats to an officer’s safety, speech that is likely to incite a surrounding

crowd to violent action, or speech that in any way obstructs officers in performing

their lawful duty has generally been viewed by the courts as falling outside consti-

tutional protection.

Obscenity can be a challenging concept to understand and define. However, the

courts have developed fairly precise guidelines regarding what legally constitutes

obscene material. To qualify as obscene, it must be shown that the work (1) taken

as a whole appeals to the prurient (lustful) interest in sex; (2) portrays sexual con-

duct in a patently offensive way; and (3) taken as a whole does not have a serious

literary, artistic, political, or scientific value (Miller v. California, 1973). Various Supreme Court rulings have held that the First Amendment provides

no protection to obscenity, child pornography, or speech that advocates the use of

force to direct, incite, or produce imminent lawless action (Cohen, 2009). The

Court has also ruled that the First Amendment does not fully protect speech that

may be harmful to children, defamation (libel and slander), commercial speech,

Officer Tollivan is on patrol at 9:30 p.m. when he

sees a group of teenagers gathered near a vacant

house. Knowing that there has been a problem in

the neighborhood with break-ins, he pulls his

squad over and gets out to talk to the group.

As he gets out of the squad, the group starts to

walk away. He calls out, “Hey, can I talk to you?”

A girl in the group looks back and replies, “F*ck

you, pig!” The girl continues to walk away. Officer

Tollivan tells her to stop because she is under arrest

for disorderly conduct, citing a state law that pro-

hibits using “offensive, boisterous, obscene, or

vulgar language.” He places her in handcuffs, puts

her in the back of the squad, and brings her to juve-

nile detention.

■ Does the arrest of the girl punish speech that is protected by the First Amendment?

■ If this comment were directed at you, how would you feel?

■ Should an officer have to tolerate this behavior because of the job he holds? Why or why not?

Constitutional Law in ACTION

e n

g a

g e

L e

a rn

in g

2 0

1 5

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Chapter 5 The First Amendment: Basic Freedoms 147

speech broadcast on radio and television, and public employees’ speech (Cohen,

2009). When cases arise under these circumstances, the issue becomes whether the

speech in question meets the definition of the category of unprotected speech. As

noted previously with obscenity, each of the preceding categories of speech has a

unique definition.

United States v. Alvarez (2012), a case that highlights the need to narrowly define unprotected speech, involved the Stolen Valor Act of 2005 (18 U.S.C. 704(B)), which

made it a crime to lie about being awarded military decorations or medals and

imposed enhanced penalties for lies involving a Congressional Medal of Honor. In

2007, Xavier Alvarez was charged in the Central District of California with two

counts of falsely representing that he had been awarded the Congressional Medal

of Honor. Alvarez, who had never served in the armed forces, moved to dismiss on

the grounds that the act violated his First Amendment right to free speech. The

district court denied the motion to dismiss, and Alvarez pleaded guilty but reserved

his right to appeal.

The case ascended to the U.S. Supreme Court, which ruled 6–3 on June 28,

2012, that the government cannot punish people for making false claims about

military service or honors and that the First Amendment is written broadly

enough to protect intentional untruths as long as they do not serve fraudulent

purposes and the person stating such lies is not under oath in a court of law at the

time. In writing the Court’s opinion, Justice Kennedy stated: “The Nation well

knows that one of the costs of the First Amendment is that it protects the speech

we detest as well as the speech we embrace. Though few might find respondent’s

statements anything but contemptible, his right to make those statements is pro-

tected by the Constitution’s guarantee of freedom of speech and expression. The

Stolen Valor Act infringes upon speech protected by the First Amendment.”

This opinion illustrates well how many types of speech, even if morally repre-

hensible, fall within First Amendment protection, meaning the government cannot

limit or punish that type of speech. Importantly, the Court notes that “Absent from

those few categories where the law allows content-based regulation of speech is any

general exception to the First Amendment for false statements.”

Since Alvarez, Congress has worked to revamp the Stolen Valor Act so that it meets the strict scrutiny requirement.

First Amendment Expression Rights of Public Employees

Although no citizens, regardless of their work, forfeit their constitutional rights,

how these rights are applied can be different, depending on the circumstances. A

leading case in freedom of speech of public employees is Pickering v. Board of Educa- tion (1968), in which a high school teacher’s letter to the local newspaper’s editor criticizing the allocation of funds between academics and athletics at the local high

school led to the teacher’s termination. The Supreme Court held that in the absence

of proof of a teacher knowingly or recklessly making false statements, the teacher

had a right to speak on issues of public importance without being dismissed from

his position. An employee’s interest as a citizen in making public comment needs

to be balanced against the employer’s competing interest “in promoting the

efficiency of the public services it performs” (Pickering v. Board of Education, 1968).

CASE IN BRIEF

United States v. Alvarez (2012)

ISSUE Does a federal law that makes it a crime to lie about

receiving military medals or

honors violate the First Amend-

ment’s guarantee of the right to

free speech?

RULING Yes. The Free Speech Clause of the First

Amendment protects false

statements.

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148 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

By Richard Simon (Los Angeles Times, September 13, 2012)

WASHINGTON—The House on Thursday passed a new Stolen Valor Act in

response to a U.S. Supreme Court ruling that struck down an earlier law mak-

ing it a crime to lie about military medals.

The court ruled in June that falsely claiming military honors, while “con-

temptible,” was protected by the 1st Amendment. The new measure, passed

410 to 3, makes it a crime to fraudulently claim to be a medal recipient “with

intent to obtain money, property or other tangible benefit.”

“The need to protect the honor, service and sacrifice of our veterans and

military personnel is as strong today as it has ever been,’’ said Rep. Joe Heck

(R-Nev.), the bill’s chief sponsor. A similar measure is awaiting Senate action.

The court ruling grew out of the prosecution of Xavier Alvarez, a former

member of the Three Valleys Municipal Water District governing board in

eastern Los Angeles County who boasted of receiving the Medal of Honor,

but who never served in the military.

Proponents say the new measure would withstand constitutional challenge

because it targets those who seek to profit from misrepresenting themselves as

medal recipients. Violators could face a fine and up to a year in prison.

Gabe Rottman, legislative counsel in the ACLU’s Washington office,

called the measure unnecessary. “Fraud is already illegal,” he said.

But he said the narrower House-approved measure is better than earlier

proposals, which could have covered lying about military service “to impress

a girl in a bar.”

Jonathan Turley, a George Washington University law professor, said the

new law could run into a constitutional challenge depending on how prose-

cutors define “other tangible benefit.”

Sen. Jim Webb (D-Va.), who’s sponsoring the Military Service Integrity

Act, has said that lying about a medal to improve one’s credibility in a politi-

cal campaign or to burnish a job resume would quality as tangible benefit.

“It’s going to come down to how prosecutors use the law,” Turley said.

“What’s clear is that the vast majority of cases prosecuted under the original

law cannot be prosecuted under this law because the government cannot

criminalize the simple act of lying.”

Lawmakers believe that Justice Anthony Kennedy opened the door to a

new law by writing:

“Where false claims are made to effect a fraud or secure moneys or other

valuable considerations, say offers of employment, it is well established

that the government may restrict speech without affronting the First

Amendment.”

“Lie about a Military Medal? A New Stolen Valor Act Targets Fraud” IN THENEWS

(Continued)

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Chapter 5 The First Amendment: Basic Freedoms 149

The 2006 law was passed in response to a proliferation of military impos-

tors. In Illinois, one man attended Marine Corps functions posing as a retired

colonel, claiming to have received the Purple Heart eight times as well as the

Navy Cross. It turned out he never served in the Marines, according to a

House Judiciary Committee report.

In 2003, 642 Virginia residents sought an exemption from state tax on mili-

tary benefits by claiming to have received the Medal of Honor despite the fact

that at the time, there were only four living Medal of Honor recipients in

Virginia and 132 nationwide.

As established in Connick v. Myers (1983), “Employee speech has to be determined by the content, form and context of a given statement.” This balancing test will

weigh in favor of the employee when the speech is made as a citizen on a matter of public concern. In such cases, the court looks at whether the government employer

has an adequate justification for treating the employee differently than a regular citi-

zen, requiring any speech restrictions to be based on the fact that such limitations are

needed for the government employer to run an efficient and effective operation.

This balancing inquiry was further addressed in Garcetti v. Ceballos (2006), a case in which Ceballos, a supervising deputy district attorney in Los Angeles, became aware

of evidence against the defendant that had been obtained through the use of a faulty

warrant affidavit. Ceballos brought this information to the attention of his superiors

and recommended dismissing the charges, but the prosecutors ignored Ceballos’s

findings and opted to proceed with the criminal case. This prompted Ceballos to write

and submit to the trial court a highly critical dismissal memorandum challenging the

submitted evidence. The court, however, rejected Ceballos’s challenge.

Ceballos then claimed that, in the weeks and months following this challenge, he

was subjected to a series of retaliatory actions by his employer, including reassign-

ment to a less-desirable position, transfer to another courthouse, and denial of a

promotion. Ceballos filed a lawsuit alleging this retaliation was based on his dis-

missal memo in violation of his First and Fourteenth Amendment rights, but his

claim was rejected by the Court: “The U.S. Supreme Court ruled for the employer by

distinguishing the Pickering balancing criteria from that here where Ceballos’ speech was made pursuant to his official duties, in essence ruling it was speech made as part

of his job and not made as a private citizen. The threshold inquiry after Garcetti is the extent to which an employee can be said to be speaking in connection with his/her

employment” (Dwyer, 2010). Justice Kennedy, writing for the majority stated,

It is well settled that “a State cannot condition public employment on a basis that

infringes the employee’s constitutionally protected interest in freedom of expres-

sion.” The question presented by the instant case is whether the First Amend-

ment protects a government employee from discipline based on speech made

pursuant to the employee’s official duties.

The Court’s decisions, then, have sought both to promote the individual and

societal interests that are served when employees speak as citizens on matters of

public concern and to respect the needs of government employers attempting to

perform their important public functions.

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150 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

We reject, however, the notion that the First Amendment shields from disci-

pline the expressions employees make pursuant to their professional duties. Our

precedents do not support the existence of a constitutional cause of action

behind every statement a public employee makes in the course of doing his or

her job.

The judgment of the Court of Appeals is reversed, and the case is remanded

for proceedings consistent with this opinion. (Garcetti v. Ceballos, 2006)

The Court held “that when public employees make statements

pursuant to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does

not insulate their communications from employer discipline.”

Thus, the rule of Garcetti remains that an employee is protected only if the speech is unconnected to employment.

As a result of Garcetti, criticism of the “blue wall of silence” and public demand for greater police transparency has hit a

“speed bump” because the ruling discourages officers from com-

ing forward with criticism of activities within the department (Dwyer, 2010). Any

officer who speaks in public on an employment matter is not protected by the

First Amendment.

In City of San Diego v. Roe (2004), police officer Roe videotaped himself stripping off an unofficial police uniform and masturbating. He then sold the video on the

adults-only section of an online auction site, with his seller profile indicating he was

a police officer. When this activity came to the attention of the San Diego Police

Department (SDPD), an investigation followed and Roe was ordered to stop, but he

did not fully comply, so he was terminated. Roe filed suit, alleging the department’s

demand that he stop making and selling the videos, and his subsequent firing

because of his refusal to comply, were violations of his First Amendment right to

free speech. The case found its way to the Supreme Court, which ruled that

although the conduct did not amount to a matter of public concern, it was con-

nected to his employment with the SDPD and that the officer’s conduct negatively

affected the department’s operation and, therefore, was not protected by the First Amendment (Scarry, 2008b).

This case illustrates the fine line public employees walk in matters concerning

the First Amendment right to freedom of speech and expression.

Freedom of Speech and the Internet

A plethora of First Amendment cases have arisen as the Internet continues to make

virtually anything available to anyone. The Court began a more definitive review

of Internet issues in Reno v. American Civil Liberties Union (1997). In this case, the Court struck down a law banning computer-generated or “virtual” child pornogra-

phy. It acknowledged that in addition to the multifaceted means of disseminating

information electronically, much broader community norms had to be considered.

Congress responded to the Reno decision by promulgating the Child Online Protec- tion Act (COPA) of 1998, which would, in effect, nullify the Reno decision. However, in 2008, the Third Circuit affirmed a 2007 district court ruling that COPA does not

survive “strict scrutiny” analysis and thus, is an unconstitutional violation of the

First Amendment (American Civil Liberties Union v. Mukasey, 2008). The following

As public employees , law enforcement offi cers’ speec h is prot ect ed under the First Amendment only if it is (1) a matt er of public concern or (2) unrelated to employment.

CASE IN BRIEF

Garcetti v. Ceballos (2006)

ISSUE Does the First Amend- ment protect the speech made by

a government employee pursuant

to his or her job?

RULING No. Speech by a government employee will be

protected by the First Amend-

ment when the speech is a

matter of public concern and

made as a citizen, not pursuant

to one’s job.

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Chapter 5 The First Amendment: Basic Freedoms 151

year the Supreme Court denied certiorari (Mukasey v. American Civil Liberties Union, 2009), effectively leaving the appellate court ruling to stand.

As is the case with the printed and spoken word, obscenity will continue garnering

both legislative and judicial attention as will business communication, privacy issues,

and advertising matters will surely be addressed. For example, Congress is currently

considering legislation to address the mounting problem of unrequested Internet

advertising (spam). As the debate continues over what can be virtually made available

to whom, in United States v. American Library Association (2003), the Court held that Congress could limit funding to libraries that did not filter Internet access to block

obscene material and child pornography without violating the First Amendment.

The Right to Photograph

Courts have long ruled that the First Amendment protects the right of citizens to

take photographs in public places. However, even more than a decade since the

9/11 terrorist attacks, police officers and security guards view people photograph-

ing federal buildings, bridges, and transportation hubs as potential terrorists and

attempt to restrict them, often citing authority they do not have. Police and security

guards have been called on to be “extra vigilant” and to encourage citizens to do

the same. Taking photographs of likely terrorist targets is included in “suspicious

behaviors” to watch for.

Police and security often restrict the taking of photographs, despite the public’s

right to do so. The “disconnect” between policy and practice may be the result of a lack

of guidelines about how to balance security concerns with civil liberties (Shin, 2010a,

p. B02). The New York Police Department (NYPD) serves as an example of what an

agency might do to close this gap. The NYPD directive on photographs says that pho-

tography is “rarely unlawful” and that officers have “no right to demand to see photos

or to delete them.” The directive allows that although New York is a potential terrorist

target, it is also a major tourist destination and “practically all such photography will

have no connection to terrorism or unlawful conduct” (Shin, 2010a, p. B02).

Videotaping also raises suspicion. It becomes especially controversial when citi-

zens videotape police officers. Twenty years ago a private citizen videotaped the

beating of Rodney King, causing a national uproar. When the four Los Angeles

Police Department (LAPD) officers were found not guilty, riots broke out, leaving

more than 50 dead and thousands injured. Since then, whether people have the

right to videotape police officers has been a topic of debate.

In Maryland, motorcyclist Anthony Graber, wearing a helmet camera, recorded

an incident where a plainclothes Maryland state trooper cut him off on an exit ramp

and then drew his gun before announcing that he was a law enforcement officer.

A week later Graber posted the video recording on YouTube, and the law came

down hard on him, charging him with four felony counts, including violating

Maryland’s wiretap law. If convicted he could have faced 16 years in prison (Shin,

2010b). Instead the wiretapping charges were dropped and Graber faced only the

traffic-related charges. Only Massachusetts and Illinois have laws making it illegal

to audio record people without their consent, so those who tape police encounters

can be prosecuted in those two states. However, although prosecutors across the

country are claiming that videotaping police officers violates wiretap laws, to date

no cases have come before the Supreme Court (Cohen, 2010).

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152 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Despite citizens having the right to videotape the police, officers also have

rights. “No one can speak knowledgeably about a piece of video without viewing

it through the prism of experience and training. It is not a question of whether a

citizen has the right to videotape an incident, but a matter of ensuring that any

officer involved has the right to due process and fair, objective treatment indepen-

dent of subjective and sometimes ill-informed opinion based on a videotape show-

ing but a vignette of a significant event” (Slocumb and Roberts, 2010).

Freedom of the Press Freedom of the press is integrally related to freedom of speech because speech is considered not only spoken words but any means of conveying information. As

early as 400 b.c.e., the Greek poet Euripides stated, “The tongue is mightier than the

blade,” and in 1839, Edward Bulwer-Lytton proclaimed, “The pen is mightier than

the sword.” Thomas Jefferson once stated, “Wherever people are well informed,

they can be trusted with their own government.” Freedom of the press protects the

right to obtain and publish information or opinions without governmental control

or fear of punishment.

Historically, freedom of the press has been attached to the general concept of

censorship. In countries with extensive censorship, the right to publish news, infor-

mation, and opinions is usually tightly restricted. The British government, for

example, was able to restrict almost anything that arguably related to the govern-

ment through use of the Official Secrets Act. Simply, anything the government

wished to remain secret, would—period. Under such a law, for example, news of

the Three Mile Island nuclear accident in the United States would not have been

released had it happened in the United Kingdom.

Even in the United States, where censorship is light, the right to publish is not

absolute. The constraints on freedom of the press in a free society are controversial

and are constantly being redefined by the judiciary.

Governments have restricted the right to publish in two ways: by restraining the

press from publishing certain materials and by punishing those who publish matter

considered seditious, libelous, or obscene. The first kind of restriction, often called

prior restraint, is rare in the United States and most other democratic countries.

One of the first attacks on prior restraint can be found in John Milton’s essay Areop- agitica (1644), which was directed against the English licensing and censorship laws enacted in 1534 under Henry VIII. These laws were abolished in England in 1695,

but the government was still able to take action on grounds of seditious libel

against those who published material, whether true or false, and those who criti-

cized government policies.

In the American colonies, prosecutions of this kind were made more difficult by

a jury’s decision in New York v. Zenger (1735). John Peter Zenger, a New York news- paper publisher, wrote articles critical of the colonial governor. The jury acquitted

Zenger on the grounds that his charges were true and, therefore, could not be con-

sidered libelous. The Zenger trial is the first case in American law in which truth

was asserted as a defense to an action for libel. Although Americans were denied

this defense for two centuries following that trial under the common law of many

jurisdictions, truth is now a constitutionally protected defense under the First

Amendment (“The Trial of John Peter Zenger,” no date).

prior restraint a restriction on publishing certain materials

Freedom of the press app lies to all types of printed and broadcast material, including books, newspapers, magazines , pamphlet s, fi lms, and radio and television programs.

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Chapter 5 The First Amendment: Basic Freedoms 153

This restraint on federal government’s interference with freedom of the press

was made binding on state governments via incorporation of the Fourteenth

Amendment in Near v. Minnesota (1931), a case in which the Court ruled that no newspaper could be banned because of its contents, regardless of how scandalous

they might be. Still, freedom of the press has frequently been denied in the areas of

obscenity and pornography. The courts have, however, had some difficulty delin-

eating appropriate standards of censorship.

For example, in Roth v. United States (1957), the Court ruled that obscenity is not a constitutionally protected freedom of speech. The standard to be used, as dis-

cussed previously in the chapter, is “whether to the average person, applying con-

temporary community standards, the dominant theme of the material, taken as a

whole, appeals to prurient interest, that is, having a tendency to excite lustful

thoughts” (Miller v. California, 1973). Restrictions on the press have often occurred during national emergencies.

Censorship during World War I led to the first clear articulation of the limits to

freedom of speech with which free press issues are closely tied. During World

War II, freedom of the press was greatly curtailed for security reasons, but the press

willingly complied with censorship restrictions. Other than in wartime, censorship

for national security reasons has been carefully limited.

In 1971, the U.S. government attempted to halt publication of The Pentagon Papers on the grounds that it could endanger national security. The Supreme Court ruled (New York Times v. Sullivan, 1964) that this case of prior restraint was uncon- stitutional, citing the Zenger trial as relevant. Other cases involving national secu- rity have concerned attempts to censor or halt publication of books about the

Central Intelligence Agency. In 1983, when U.S. troops invaded Grenada, the press

was initially barred from the island. The restrictions later imposed were thought to

be unprecedented in U.S. practice and generated much controversy.

Control of the press during the Persian Gulf War (1991) was almost 100 percent.

Many criticized the press for accepting conditions that made complete reporting

impossible. After the war ended, the accuracy of some press reports was ques-

tioned. Constraints on the press are always controversial.

In Minnesota, reporters promised anonymity to a political campaign worker

who gave them information. Later, the editors of the papers revealed his name, and

he sued them. The Supreme Court ruled in Cohen v. Cowles Media Company (1991) that the First Amendment does not give the press a constitutional right to disregard

promises that otherwise would be enforced under state law. The case was returned

to the Minnesota Supreme Court for reconsideration. Further complicating the issue,

several previous decisions appeared to narrow the newspaper reporters’ right to

withhold information given to them in confidence. In April 1991, a Washington Post reporter was held in contempt of court and jailed for refusing to identify a source.

Zenger had established the precedent that truthful statements were not to be considered libelous. The obvious corollary was that damages could be collected for

false statements. In New York Times v. Sullivan, however, the Supreme Court held that public officials can win damages only if they can show that a statement defam-

ing them was made with actual malice, that is, knowing it was false or recklessly

disregarding whether it was false.

Other court rulings have extended the principle to include public figures not in

government office, but involved in public controversy. In 1979, the Supreme Court

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154 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

held that a person who involuntarily receives publicity is not necessarily a public

figure and, therefore, need not prove that the statements by the press were made

with “actual malice” to obtain libel damages (Hutchinson v. Proxmire, 1979). The Supreme Court has also held in Zurcher v. Stanford Daily (1978) that news-

papers enjoy no special immunity from searches of their premises by police with

warrants. In 1980, however, Congress passed a privacy protection act that required

the police in most cases to obtain subpoenas for such searches. In 1979, in a contro-

versial effort to curb prejudicial pretrial publicity, the Court ruled (Gannett v. DePasquale) that judges can bar the press and the public from criminal proceedings. In other cases, however, the courts have allowed televised proceedings.

The Supreme Court has further ruled that Americans have a free-speech right to

pass out anonymous political pamphlets (McIntyre v. Ohio Elections Commission, 1995). In a 7–2 decision, the Court said, “‘Anonymous pamphleteering’ has a long

and honorable history in this country that extends back to the authors of Federalist Papers and is deeply ingrained as the secret ballot. ‘Anonymity is a shield from the tyranny of the majority.’”

Balancing Freedom of the Press with the Right to a Fair Trial

A delicate balance exists between the people’s right to know, the press’ right to

publish (First Amendment), and the “public trial” rights of those accused of crimes

(Sixth Amendment), as well as the needs of the agencies charged with investigating

such crimes (Fourth Amendment). A free press, being vital to the functioning of a

democracy, keeps citizens fully informed and able to discharge their civic responsi-

bilities. However, in this country, defendants in criminal cases are guaranteed due

process of law and a fair and impartial trial. These guarantees are jeopardized when

the media publish detailed information before a defendant is tried.

The question is whether events reported in the press before the trial may unduly

influence jurors. In Sheppard v. Maxwell (1966), the defendant, Dr. Samuel Sheppard, was accused of brutally murdering his pregnant wife in their home. The pretrial pub-

licity was intensely prejudicial, and Sheppard was convicted of the crime. On appeal,

the conviction was overturned, with the Court quoting the Ohio Supreme Court:

Murder and mystery, society, sex and suspense were combined in this case to

such a manner as to intrigue and captivate the public fancy to a degree perhaps

unparalleled in recent annals. Throughout the preindictment investigation, the

subsequent legal skirmishes and the nine-week trial, circulation-conscious edi-

tors catered to the insatiable interest of the American public in the bizarre. . . . In

this atmosphere of a “Roman holiday” for the news media, Sam Sheppard stood

trial for his life.

Other high-profile cases include the political, highly publicized trial of Oliver

North, the highly publicized 10-day rape trial of William Kennedy Smith, the trial

of Mike Tyson for raping a Miss Black America contestant, the trial of O. J. Simpson,

and the Casey Anthony murder trial.

The court has a duty to protect those who come before it from undue adverse

publicity. Failure to do so may result in a higher court declaring that the trial was

unfair and overturning the conviction. In addition, media reports of criminal inci-

dents can hinder police investigations.

MYTH Virtually no courtroom in the

United States allows cameras

inside to record the proceedings.

REALITY Every state has adopted rules to

allow for cameras in the court-

room. The rules vary from state to

state, but coverage (sometimes

live feeds) has become more

prevalent.

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Chapter 5 The First Amendment: Basic Freedoms 155

By Charlie Savage (New York Times, May 15, 2013)

WASHINGTON—Under fire over the Justice Department’s use of a broad

subpoena to obtain calling records of Associated Press reporters in connection

with a leak investigation, the Obama administration sought on Wednesday to

revive legislation that would provide greater protections to reporters in keep-

ing their sources and communications confidential.

President Obama’s Senate liaison, Ed Pagano, on Wednesday morning

called the office of Senator Charles E. Schumer, Democrat of New York, and

asked him to reintroduce a version of a bill that he had pushed in 2009 called

the Free Flow of Information Act, a White House official said.

The bill would create a federal media shield law, akin to ones most states

already have, giving journalists some protections from penalties for refusing

to identify confidential sources in federal law enforcement proceedings, and

generally enabling journalists to ask a federal judge to quash subpoenas for

their phone records.

Hours later, Attorney General Eric H. Holder Jr. appeared before the

House Judiciary Committee for a hearing that covered a wide range of topics

but repeatedly returned to the A.P. phone records. Lawmakers from both par-

ties sought to grill him over why federal investigators secretly used a sub-

poena this year to obtain a broad swath of toll records—logs of calls sent and

received—for several A.P. bureaus and reporters, without advance notice.

“These requests appear to be very broad and intersect important First

Amendment protections,” said the committee’s chairman, Representative

Robert W. Goodlatte, Republican of Virginia. “Any abridgment of the First

Amendment right to the freedom of the press is very concerning.”

Mr. Holder, however, repeatedly noted that he had recused himself because

the F.B.I. had interviewed him as one of the officials who knew the information

that was leaked to The A.P., which is believed to be about the foiling of a bomb-

ing plot involving the Yemen branch of Al Qaeda in the spring of 2012. The

decision to approve the subpoena was made by his deputy, James M. Cole.

“I was not the person who was involved in that decision,” he said.

That answer, versions of which he gave in response to multiple questions

from Republicans about the leak investigation, did not satisfy committee mem-

bers, several of whom said they wanted Mr. Cole to appear before the commit-

tee and answer questions. Mr. Holder, however, cautioned that since the

investigation was continuing, Mr. Cole might not be able to discuss the issue.

Mr. Holder also said that he did not put his recusal in writing, which drew

widespread criticism from the lawmakers. Later in the hearing, he said that he

had decided to examine whether it would be a better policy to always record

when he was transferring his powers to his deputy for a specific matter.

“Criticized on Seizure of Records, White House Pushes News Media Shield Law” IN THENEWS

(Continued)

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156 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

The top Democrat on the committee, Representative John Conyers of

Michigan, noted that he had sponsored a version of the Free Flow of Informa-

tion Act that passed the House twice when it was under Democratic control.

He said he would reintroduce his version, too, and he said he hoped that

Republicans—who until recently had called for more aggressive investiga-

tions of leaks—would support it.

The version the Obama administration is seeking to revive, however, is

the one that was chiefly sponsored by Mr. Schumer, which was negotiated

between the newspaper industry and the White House. It was approved by

the Senate Judiciary Committee in a bipartisan 15-to-4 vote in December 2009.

But while it was awaiting a floor vote in 2010, a furor over leaking arose after

WikiLeaks began publishing archives of secret government documents, and

the bill never received a vote.

In a statement confirming that he would reintroduce the legislation, Mr.

Schumer referred to the controversy over the subpoena of A.P. calling records,

saying: “This kind of law would balance national security needs against the

public’s right to the free flow of information. At minimum, our bill would

have ensured a fairer, more deliberate process in this case.”

It is not clear whether such a law would have changed the outcome of the

subpoena involving the A.P.

The 2009 legislation would have created a presumption that when the

government was seeking calling records from a telephone carrier, the news

organization would be notified ahead of time, allowing it to fight the sub-

poena in court. But the bill would also have allowed the government to seek

a 45-to-90-day delay in notification if a court determined that such notice

would threaten the integrity of the investigation.

Under the bill, the scope of protection for reporters would vary according to

whether it was a civil case, an ordinary criminal case or a national security case.

The greatest protection would be given to civil cases, in which litigants

seeking to force reporters to testify or trying to obtain their calling informa-

tion would be required to show why their need for the information out-

weighed the public’s interest in unfettered news gathering.

Ordinary criminal cases would work in a similar fashion, except the bur-

den would be on the reporter seeking to quash the subpoena to show by a

“clear and convincing” standard that the public interest in the free flow of

information should prevail over the needs of law enforcement.

Cases involving the disclosure of classified information would be more

heavily tilted toward the government. Judges could not quash a subpoena

through a balancing test if prosecutors presented facts showing that the infor-

mation sought might help prevent a terrorist attack or other acts likely to

harm national security.

In his testimony, Mr. Holder said he supported Mr. Schumer’s bill.

“There should be a shield law with regard to the press’s ability to gather

information and to disseminate it,” he said. “The focus should be on those

people who break their oath and put the American people at risk, not report-

ers who gather this information.”

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Chapter 5 The First Amendment: Basic Freedoms 157

The Effect of Media Coverage on Criminal Investigations

In many departments police officers see reporters as enemies who jump at the

chance to report law enforcement’s mistakes or brutal treatment of citizens. In real-

ity, however, the two fields have much in common: “Both law enforcement agencies

and the media are highly visible, powerful institutions. Both professions attract

ambitious, strong-minded employees who possess a strong sense of justice and a

desire to help others. Both professions are frequently criticized by the public they

serve and are highly sensitive to that criticism. The professionals of both can be

highly defensive and feel that they are poorly understood by their critics. Both

professions are sometimes secretive about their operations and their methods for

gathering information. Professionals in both endeavors see themselves as vital to

the public welfare” (Garner, 2009, p. 52). Nonetheless, at times reporters’ First

Amendment rights of freedom of the press can come into conflict with law enforce-

ment’s responsibility to investigate crimes without violating a suspect’s Sixth

Amendment right to a fair trial.

The Right to Peaceful Assembly Within the First Amendment is the “right of the people peaceably to assemble, and

to petition the Government for a redress of grievances.” This right is often claimed

in conjunction with the right to freedom of speech, as seen in abortion protests.

Combined with the Fourth Amendment’s guarantee to be free from “unreasonable

searches and seizures” people do have an expectation they can gather to interact,

speak among themselves and make their thoughts and ideas known.

The right to assemble does not necessarily require an intent to engage in some

specific activity, although when it does, the activity cannot be illegal. In the 1999

case of Chicago v. Morales, the Court held that an “anti-loitering” ordinance was unconstitutional because its language was too vague in defining illegal loitering as

“to remain in any one place with no apparent purpose.” In response to this ruling

and with the intent of combating gang activity, Chicago legislators amended the

definition to “remaining in any one place under circumstances that would war-

rant a reasonable person to believe that the purpose or effect of that behavior is to

enable a criminal street gang to establish control over identifiable areas, to intimi-

date others from entering these areas, or to conceal illegal activities.” By being more

specific, Chicago leaders hope to constitutionally address the city’s gang problem

without infringing on the rights of others to lawfully assemble.

The right to assemble is an integral part of U.S. culture that allows people to

gather and express thoughts and ideas without government interference. Like any

other right, however, it is not without limitations. Table 5.2 summarizes several

types of property and the types of restrictions that lawfully may be placed on their

use for peaceful assembly.

The right to peaceful assembly and, by implication, freedom to petition for

redress of grievances was made applicable to the states via incorporation of DeJonge v. Oregon (1937). The freedom to petition was the focus of Duryea v. Guarnieri (2011), in which police chief Charles Guarnieri had filed a discrimination lawsuit against

his employer, the Pennsylvania borough of Duryea, alleging that council members

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158 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

retaliated against him because he had successfully challenged a 2003 decision to fire

him. Following Guarnieri’s reinstatement as chief in 2005, he alleged that the coun-

cil had issued 11 new employment directives aimed at placing humiliating restric-

tions on him, an action, which, in essence, violated his First Amendment right to

petition. He further alleged the borough improperly withheld overtime pay from

him and had improperly delayed issuing health insurance benefits.

In district court, a jury found for Guarnieri and awarded him $45,358 in com-

pensatory damages and $52,000 in punitive damages. Duryea appealed to the Third

Circuit, which upheld the verdict and ruled that the First Amendment protects

public employees in filing grievances concerning any matter, even those of a per-

sonal nature. The Supreme Court granted certiorari to determine whether public

employees may sue their employers for retaliation, when the alleged reprisal is for

the filing of grievances based on private matters rather than issues of public con-

cern. The Court vacated and remanded the lower court order, and the opinion by

Justice Kennedy held, “A government employer’s allegedly retaliatory actions

against an employee do not give rise to liability under the Petition Clause unless

the employee’s petition relates to a matter of public concern.”

Freedom of Association Closely related to the freedom of assembly is the freedom of association. The right

to simply associate with others has been considered to fall under the First Amend-

ment as well and other amendments, although no specific reference occurs any-

where in the Bill of Rights concerning the right of association. This unenumerated

but fundamental freedom was extended to the states through NAACP v. Alabama

Table 5.2 Types of Public and Quasi-Public Property

Property

Use by public for communicating and

demonstrating Restrictions that may be placed on use

Publicly owned streets, sidewalks,

and parks

Such property “has been used for purposes of

(public) assembly, communicating thoughts between

citizens and discussing public questions.”a

Reasonable regulations may be imposed to ensure

public safety and order (e.g., traffic regulations).

Government buildings, such as

courthouses and city halls

Property used for the business of government during

business hours is open to the public at these times

so that the public may ordinarily come and go as

they wish.

Greater restrictions may be imposed to ensure the

functioning of government or the regular use of the

facilities by the public. They can accommodate only

limited expressions of social protest.

Public hospitals, schools, libraries, and

so on

Use of these public facilities is ordinarily limited to

the specific function for which they are designed.

Because these facilities need more order and tranquility

than do other public buildings, they generally have more

restrictions concerning use by the public.

Quasi-public facilities, such as shopping

centers, stores, and other privately owned

buildings or property to which the public

has access

Many quasi-public facilities are as extensively

used by the public as are public streets, sidewalks

and parks.

Private owners of quasi-public facilities have greater

authority to regulate their property than does the

government of public streets and parks.

Public property to which access by the

public is limited and restricted

Government may limit and restrict in a reasonable

manner the access by the public to jails, executive

offices (mayor, police chief, and others), and other

facilities that must be restricted to permit

government to function effectively.

Such restrictions must be made in a reasonable and

nondiscriminating manner.

aU.S. Supreme Court in Kunz v. New York, 340 U.S. 290 (1951).

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Chapter 5 The First Amendment: Basic Freedoms 159

(1958) and is evaluated by the courts in one of two contexts. In the first form, the

right is evaluated in the context of intimate relationships (e.g., marriage, family,

etc.) via due process and the right to privacy. The second context is the freedom of

individuals to come together in groups, small or large, to engage in activities pro-

tected by the First Amendment (such as freedom of speech and expression, freedom

to practice their religion, etc.).

Wilson v. Swing (1978) was a case involving the First Amendment right of free- dom of association, in which a police sergeant was demoted to patrol officer for

reasons that included his having an extramarital affair with another officer while

off duty. Among the legal issues argued by the officer was that the rule “members

and employees shall conduct their private and professional lives in such a manner

as to avoid bringing the Department into disrepute” was unconstitutional because

it was vague and overbroad. In this case, the Court did not feel the rule was either

and held in favor of the employer.

In Roberts v. United States Jaycees (1984), the Supreme Court held that the right to freedom of association guaranteed by the First and Fourteenth Amendments did

not include the right of a commercial association (the U.S. Jaycees) to deny women

admission to the organization because of their gender. In a unanimous vote, the

Court emphasized that the state had a compelling interest to eliminate gender dis-

crimination and assure its citizens equal access to publicly available goods and

services. In delivering the opinion of the Court, Justice Brennan wrote:

An individual’s freedom to speak, to worship, and to petition the government

for the redress of grievances could not be vigorously protected from interference

by the State unless a correlative freedom to engage in group effort toward those

ends were not also guaranteed. . . . According protection to collective effort on

behalf of shared goals is especially important in preserving political and cultural

diversity and in shielding dissident expression from suppression by the major-

ity. . . . Consequently, we have long understood as implicit in the right to engage

in activities protected by the First Amendment a corresponding right to associate

with others in pursuit of a wide variety of political, social, economic, educa-

tional, religious, and cultural ends.

An interesting side note to Roberts is that this case also recognized the right to not associate with someone.

On June 28, 2010, in Christian Legal Society v. Martinez, the Supreme Court affirmed and remanded the Ninth Circuit’s decision that a public university law

school (in this case, the Hastings College of Law in San Francisco, headed by acting

Chancellor Leo Martinez) could deny school funding and other benefits to a reli-

gious student organization (the Christian Legal Society [CLS]) because the group

required its officers and voting members to agree with its core religious viewpoints.

The CLS, headquartered outside Washington, DC, is a national network of lawyers

guided by their Christian faith, with student chapters at law schools across the

country. If members do not sign the CLS’s statement of faith, they cannot vote or

hold office. CLS members must also sign a statement that they understand that any

“sexually immoral lifestyle” is grounds for disqualification, including “all acts of

sexual conduct outside of God’s design for marriage between one man and

woman.” Greg Baylor, CLS attorney, argues that the case was not about discrimina-

tion but about shared beliefs (O’Brien, 2010).

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160 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

The Hastings Law School had denied giving student group status to CLS based

on the school’s “all-comer” policy, under which groups are required to accept any-

one into membership, regardless of “status or beliefs” (Belz, 2010). The Supreme

Court ruled in favor of the college. Justice Ginsburg wrote in the 5–4 majority opin-

ion that the “all-comer” policy is “reasonable” and constitutional. The holding

applies only to the Hastings-style “all comers” policy, which does not exist at any

other public university.

This case reached the Supreme Court at a time in the nation’s history when our

society and law are much more supportive of inclusion than of exclusion (O’Brien,

2010). Antidiscrimination laws that go far beyond what the Constitution might

require have sprung up around the country. However, “The First Amendment also

guarantees freedom of association, a fundamental right to gather with whomever

we choose and collectively express ourselves” (O’Brien, 2010). Again a balance

must be sought. Justice Samuel Alito, writing in dissent, stated,

The Court’s treatment of this case is deeply disappointing. The Court does not

address the constitutionality of the very different policy that Hastings invoked

when it denied CLS’s application for registration. Nor does the Court address

the constitutionality of the policy that Hastings now purports to follow. And the

Court ignores strong evidence that the accept-all-comers policy is not viewpoint

neutral because it was announced as a pretext to justify viewpoint discrimina-

tion. Brushing aside inconvenient precedent, the Court arms public educational

institutions with a handy weapon for suppressing the speech of unpopular

groups—groups to which, as Hastings candidly puts it, these institutions “do

not wish to lend their name(s).”

CLS will have a chance to raise these points because the Supreme Court remanded

the case to the lower court for further consideration.

The last area to consider in the discussion of basic rights is that of the First

Amendment rights of prisoners in the correctional system.

First Amendment Rights of Prisoners A result of the “due process revolution” has been the extension of First Amendment

rights to prisoners. Using a “rational basis” test, the Supreme Court has upheld

prison regulations that are, as Justice Sandra Day O’Connor stated in Turner v. Safley (1987), “reasonably related to legitimate penological interests.” She listed in the

opinion four criteria of the “rational basis” test, which continue to be the standard

for analyzing First Amendment claims by prisoners and other constitutional claims

as well: (1) there must be a rational connection between the regulations and legiti-

mate interest put forward to justify it, (2) alternative means of exercising the right

must remain open to prison inmates, (3) the regulations must have only a minimal

impact on correctional officers and other inmates, and (4) a less restrictive alterna-

tive must not be available.

It is worth briefly explaining here the difference between rational basis and strict scrutiny, a difference that affects how the Court treats freedom of speech issues involving content control. Rational basis means simply that a law or regula- tion must bear some relationship (i.e., be rationally related) to a legitimate gov-

ernment interest. In other words, as long as there are facts that support the law as

“rational basis” test the standard for analyzing First

Amendment claims by prisoners

and other constitutional claims

as well

MYTH Prisoners have the same First

Amendment rights as free citizens.

REALITY Although many of the same rights

exist, the particular rights are

evaluated differently because of

the prison setting.

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Chapter 5 The First Amendment: Basic Freedoms 161

furthering a government goal, the law is valid. The burden with rational basis is

on the challenging party, and usually the legislation stands. However, when the

content of speech is regulated, as opposed to speech in a neutral way, a higher

standard must be met for it to be legal when regulated, a standard of review

known as strict scrutiny, which was introduced previously in the chapter. Recall that with strict scrutiny, the burden shifts to the state to show the law is narrowly

tailored to fit a compelling government interest.

Free speech is a right of prisoners, and the burden is on the

correctional institution to provide valid reasons for restricting

this right. Prisoner correspondence has been the focus of much

litigation, often because personal correspondence involves a

nonincarcerated person who is protected by the First Amend-

ment. In Prewitt v. State of Arizona ex rel. Eyman (1969), the Court justified the screening of inmate mail: “Mail censorship is a con-

comitant of incarceration, and so long as the censorship does not

interfere with the inmate’s access to the courts, it is a universally

accepted practice.”

However, the court’s ruling in Procunier v. Martinez (1974) restricted the censor- ship of inmates’ mail, holding such practices to be permissible only in the event of

a compelling government interest in maintaining security. This decision greatly

enhanced prisoners’ abilities to communicate with the outside world. In Turner v. Safley, the Court upheld a restriction on prisoners from different institutions corre- sponding because of related gang problems and the potential for escape planning.

In Shaw v. Murphy (2001), the Supreme Court reiterated that “incarceration does not divest prisoners of all constitutional protections . . . [but] the constitutional rights

that prisoners possess are more limited in scope than the constitutional rights held

by individuals in society at large.” In this case, the Court held that a prisoner’s

rights are not heightened because the material being read by prison officials hap-

pens to be legal advice.

Hearing is as much a part of free speech as is speaking or writing, and what

individuals are allowed to hear and read has always been part of the First Amend-

ment. This right has concerned corrections because of what might be included with

other materials sent to prisoners. In Thornburg v. Abbott (1989), the Court held that although prisoners had a right to receive some periodicals, these publications did

not have the same First Amendment protections as personal mail, and so periodi-

cals deemed detrimental to the institution’s security and order could be banned.

Using the “clear and present danger” standard, correctional officials are also

required to justify any limitations on mail.

In Beard v. Banks (2006), Justice Breyer explained, “While imprisonment does not automatically deprive a prisoner of constitutional protections . . . the Constitution

sometimes permits greater restriction of such rights in a prison than it would allow

elsewhere.” Relying on a previous case (Turner v. Safley), Breyer further stated, “Under Turner, restrictive prison regulations are permissible if they are ‘reasonably related to legitimate penological interests.’” In this case, Banks claimed his First

Amendment rights were violated by not having free access to nonreligious reading

material, but the Court disagreed that “a Pennsylvania prison policy that denies

newspapers, magazines and photographs to a group of especially dangerous and

recalcitrant inmates violate[s] the First Amendment.”

Prisoners’ rights based on the First Amendment involve censorship of mail, express ion within the institution, ass ociation within the institution, religion, app earance, and visitation rights.

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162 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Freedom of religion has also proved challenging for the correctional system.

Prisoners have brought an increased number of lawsuits that claim their religious

freedoms have been infringed on when the institution limited such areas as access

to faith leaders, special dietary options compatible with their faith’s requirements,

and opportunities to assemble with other prisoners of the same faith to worship. In

Fulwood v. Clemmer (1962), a federal court ruled that Black Muslims must be recog- nized as a religion and members be permitted to worship in accordance with their

faith. This ruling was also made in the case in Cruz v. Beto (1972), which concerned a Buddhist inmate who demanded the right to practice his religion. In such cases,

the Court has refused to hold that “different” is synonymous with “clear and pres-

ent danger.”

Disruptive activity in the name of religion, however, has not been permitted. In

O’Lone v. Estate of Shabazz (1987), the Court refused to force a prison to alter an inmate’s work schedule so he could attend certain services, citing the facility’s

restrictions based on security concerns as “reasonably related to legitimate peno-

logical interest.” However, reasonable accommodations must be made for prisoners

to practice their religious faiths.

An example of the tension within the legal system regarding how far correc-

tional facilities must go to ensure the observance of inmate rights is the Religious

Freedom Restoration Act (RFRA), discussed previously. RFRA aimed to protect

religious practices from undue governmental restrictions and had broad applica-

tions, such as the regulation of hiring and firing decisions based on an employee’s

religious practices. The result of RFRA for corrections was an avalanche of lawsuits

by inmates claiming their behavior was religious and, therefore, protected.

Although some of these lawsuits were justified, many others were frivolous and

unnecessarily clogged the court system. Eventually, in City of Boerne v. Flores (1997) the Supreme Court declared RFRA unconstitutional, ruling that Congress lacked

authority to pass such a law and that, in so doing, had impinged on the power of

the judiciary and the states.

Groups arguing for religious freedoms and groups supporting more control by

correctional officials disagreed on how this legislation came to be and its demise.

The repeal of RFRA does not mean that inmates do not have freedom of religion,

but it has limited the types of activities that might be permitted under the name of

religious freedom. From a practical standpoint, correctional personnel have a

vested interest in promoting the pursuit of religion within their institutions for the

positive benefits it yields in the faithful. Both sides have abused the system, and

future cases will undoubtedly address this issue further.

In Shaw v. Murphy (2001), the Supreme Court ruled that prison inmates do not have heightened protection in their speech when that speech contains legal advice.

The Supreme Court remanded the case, reminding the lower court that “because

the ‘problems of prisons in America are complex and intractable,’ and because

courts are particularly ‘ill equipped’ to deal with prison problems, courts have

generally deferred to the judgments of prison officials in upholding these regula-

tions against constitutional challenge.”

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Chapter 5 The First Amendment: Basic Freedoms 163

Discussion Questions

Summary

1. Is the First Amendment the most important amendment?

2. Is free speech a right that should be absolute?

3. Speaking from a historical perspective, why do you think the framers of the Constitution placed so much importance on the First Amendment?

4. Should the government tolerate people speaking against or criticizing it?

5. Should an amendment to ban burning the U.S. flag be passed?

6. Imagine you are an attorney asked to defend nude dancing as an act of expression that should be allowed in a small-town bar. What would you say to represent your client’s interests? Include an explanation of how nude dancing could ever be considered “speech.”

7. Discuss whether Nazi Germany could have gone as far as it did if a similar First Amendment had been present in Germany.

8. Should all schools, public and parochial, receive equal support from the government?

9. Should there be any restrictions on public (i.e., gov- ernment) employees’ freedom of speech? Should it matter if the employee is speaking as a citizen on a matter of public concern? If yes, what would com- prise an adequate justification from the employer to treat the employee differently than a regular citizen?

10. Discuss whether the U.S. government is hypocritical when, on the one hand, freedom of religion is guaranteed, but, on the other hand, Christianity is so obviously stated in the words of the Pledge of Allegiance, the fact that clergy are assigned to Congress, and the like.

The First Amendment prohibits Congress from making

any laws that restrict freedom of religion, freedom of

speech, freedom of the press, or the right to gather or

assemble peaceably, and to request the government to

respond to complaints from its citizens. However, no

rights are absolute, so government can regulate them

when social interests outweigh that of the individual.

Religious freedom includes the freedom to wor-

ship, to print instructional material, to train teachers,

and to organize schools in which to teach, including

religion. The establishment clause of the First Amend-

ment states, “Congress shall make no law respecting

an establishment of religion.” That is, Congress can-

not create a national church or prescribed religion.

The Free Exercise Clause of the First Amendment

declares, “Congress shall make no law . . . prohibit-

ing the free exercise [of religion].”

Freedom of speech and expression includes the

right to speak and the right to be heard. Congress has

passed laws to limit speech that advocates over-

throwing the government by force. The “clear and

present danger” test was replaced by the “imminent

lawless action” test to determine when speech should

not be protected by the First Amendment. As public

employees, law enforcement officers’ speech is

protected under the First Amendment only if it is

(1) a matter of public concern or (2) unrelated to

employment.

Symbolic acts are included within the protection

of the First Amendment.

Freedom of the press applies to all types of

printed and broadcast material, including books,

newspapers, magazines, pamphlets, films, and radio

and television programs.

Prisoners’ rights based on the First Amendment

involve censorship of mail, expression within the

institution, association within the institution, religion,

appearance, and visitation rights.

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Cohen, Henry. Freedom of Speech and Press: Exception to the First Amendment. Washington, DC: Congressional Research Service, October 16, 2009.

Davis, Kenneth C. “God and Country.” Smithsonian, October 2010, pp. 86–96.

Ducat, Craig R. Constitutional Interpretation, 9th ed. Belmont, CA: Wadsworth/Cengage Learning, 2010.

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Gardner, Thomas J., and Anderson, Terry M. Criminal Law, 11th ed. Belmont, CA: Wadsworth Publishing Company, 2012.

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Scarry, Laura L. “Violent Threats: Cause for an Arrest, or Protected Speech?” Law Officer Magazine, September 2008a.

Scarry, Laura L. “Off-Duty Conduct: Discipline May Be Warranted.” Law Officer Magazine, March 2008b, pp. 26–28.

Shin, Annys. “Freedom of Photography: Police, Security, Often Clamp Down Despite Public Right.” The Washington Post, July 26, 2010a, p. B02. Retrieved May 18, 2013, from www .washingtonpost.com/wp-dyn/content/ article/2010/07/25/AR2010072502795.html.

Shin, Annys. “Traffic Stop Video on YouTube Sparks Debate on Police Use of Md. Wiretap Laws.” The Washington Post, June 16, 2010b. Retrieved May 18, 2013, from www.washingtonpost.com/wp-dyn/ content/article/2010/06/15/AR2010061505556. html.

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Cases Cited Abington School District v. Schempp, 374 U.S. 203 (1963) Abrams v. United States, 250 U.S. 616 (1919) ACLU v. Mukasey, 534 F. 3d 181 (2008) Agostini v. Felton, 521 U.S. 203 (1997) Aguilar v. Felton, 473 U.S. 402 (1985) Barnes v. Glen Theatre, 501 U.S. 560 (1991) Beard v. Banks, 548 U.S. 521 (2006) Brandenburg v. Ohio, 395 U.S. 444 (1969) Brown v. Entertainment Merchant’s Association, 131 S.Ct.

2729 (2011) Cantwell v. Connecticut, 310 U.S. 296 (1940) Chicago v. Morales, 527 U.S. 41 (1999) Christian Legal Society v. Martinez, 561 U.S. ___ (2010) Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520

(1993) City of Boerne v. Flores, 521 U.S. 507 (1997) City of Ladue v. Gilleo, 512 U.S. 43 (1994) City of San Diego v. Roe, 543 U.S. 77 (2004) Clark v. Community for Creative Non-Violence, 468 U.S.

288 (1984) Cohen v. California, 403 U.S. 15 (1971)

Cohen v. Cowles Media Company, 501 U.S. 663 (1991) Connick v. Myers, 461 U.S. 138 (1983) Cruz v. Beto, 405 U.S. 319 (1972) Davis v. Beason, 133 U.S. 333 (1890) DeJonge v. Oregon, 299 U.S. 353 (1937) Dennis v. United States, 341 U.S. 494 (1951) Duryea v. Guarnieri, 564 U.S. ____ (2011) Employment Division v. Smith, 494 U.S. 872 (1990) Engle v. Vitale, 370 U.S. 421 (1962) Everson v. Board of Education, 330 U.S. 1 (1947) Fogel v. Collins, 531 F.3d 824 (9th Cir. 2008) Fulwood v. Clemmer, 206 F. Supp. 370 (D.C. Cir. 1962) Gannett v. DePasquale, 443 U.S. 368 (1979) Garcetti et al. v. Ceballos, 547 U.S. 410 (2006) Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) Gitlow v. New York, 268 U.S. 652 (1925) Goldman v. Weinberger, 475 U.S. 503 (1986) Griffin v. Coughlin, 673 N.E. 2d 98 (1996), cert. denied, 519

U.S. 1054 (1997) Hamilton v. Regents of University of California, 293 U.S.

245 (1934)

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Chapter 5 The First Amendment: Basic Freedoms 165

Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981)

Holder v. Humanitarian Law Project, 651 U.S. (2010) Hutchinson v. Proxmire, 443 U.S. 111 (1979) Jacobson v. Massachusetts, 197 U.S. 11 (1905) Kelley v. Johnson, 425 U.S. 238 (1976) Konigsberg v. State Bar of California, 366 U.S. 36 (1961) Kunz v. New York, 340 U.S. 290 (1951) Lemon v. Kurtzman, 403 U.S. 602 (1971) Lewis v. City of New Orleans, 415 U.S. 130 (1974) Lynch v. Donnelly, 465 U.S. 668 (1984) Lyng v. Northwest Indian Cemetery Protective Association,

485 U.S. 439 (1988) Madsen v. Women’s Health Center, Inc., 512 U.S. 753

(1994) McCreary County v. ACLU, 545 U.S.844 (2005) McIntyre v. Ohio Elections Commission, 514 U.S. 334

(1995) Miller v. California, 413 U.S. 15 (1973) Minnesota v. Hershberger, 495 U.S. 901 (1990) Mukasey v. American Civil Liberties Union, 129 S. Ct. 1032

(2009) Murray v. Curlett, 374 U.S. 203 (1963) NAACP v. Alabama, 357 U.S. 449 (1958) National Socialist Party v. Skokie, 432 U.S. 43 (1977) Near v. Minnesota, 283 U.S. 697 (1931) New York Times v. Sullivan, 376 U.S. 254 (1964) New York v. Zenger, 17 Howell’s St. Tr. 675 (1735) O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) Pickering v. Board of Education, 391 U.S. 563 (1968) Prewitt v. State of Arizona ex rel. Eyman, 315 F. Supp. 793

(D.C. Ariz. 1969) Prince v. Massachusetts, 321 U.S. 158 (1944) Procunier v. Martinez, 416 U.S. 396 (1974) R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) Reno v. American Civil Liberties Union, 521 U.S. 844

(1997) Reynolds v. United States, 98 U.S. 145 (1879) Roberts v. United States Jaycees, 468 U.S. 609 (1984)

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)

Roth v. United States, 354 U.S. 476 (1957) Schenck v. United States, 249 U.S. 47 (1919) Shaw v. Murphy, 532 U.S. 223 (2001) Sheppard v. Maxwell, 384 U.S. 333 (1966) Smilow v. United States, 465 F.2d 802, vacated on other

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194 (2003) United States v. Dickens, 695 F.2d 765, cert denied 460

U.S. 1092 (1983) United States v. Lee, 455 U.S. 252 (1982) United States v. O’Brien, 391 U.S. 367 (1968) United States v. Slabaugh, 852 F.2d 1081 (8th Cir. 1988) United States v. Starks, 515 F.2d 112 (1975) United States v. Stevens, 559 U.S. ___ (2010) Van Orden v. Perry, 545 U.S. 677 (2005) Virginia v. Black, 538 U.S. 343 (2003) Wallace v. Jaffree, 472 U.S. 38 (1985) Warner v. Orange County Dept. of Probation, 827 F. Supp.

261, 267 (S.D.N.Y. 1993) West Virginia State Board of Education v. Barnette, 319 U.S.

624 (1943) Wilson v. Swing, 463 F. Supp. 555 (M.D.N.C. 1978) Wooley v. Maynard, 430 U.S. 705 (1977) Zobrest v. Catalina Foothills School District, 509 U.S. 1

(1993) Zurcher v. Stanford Daily, 436 U.S. 547 (1978)

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166

CHAPTER 6

A well-regulated militia, being nec ess ary to the sec urity of a fr ee state, the right of the people to keep and bear arms shall not be infr inged.

—Second Amendment to the U.S. Constitution

The Second Amendment The Gun Control Controversy

The Second Amendment’s “right to bear arms” is a hotly debated issue in the United States. Private

ownership of firearms in the nation exceeds 200 million, and every year about 4.5 million firearms

are sold.

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Chapter 6 The Second Amendment: The Gun Control Controversy 167

castle law

Commerce Clause

demurrer

dictum

militia

Operative Clause

Prefactory Clause

prohibited persons

straw purchase

Sunset Clause

Can You Define?

■ Historically, who was included in the militia and what was required of

them?

■ What a central controversy over the Second Amendment has

involved?

■ Whether the number of militia groups in the United States is growing

or decreasing?

■ What opposing interpretations of the Second Amendment have

clashed over the years?

■ Whether the Supreme Court has interpreted the Second

Amendment right to bear arms as an individual or a state right?

■ If the Second Amendment has been incorporated into the

Fourteenth Amendment and the case that determined this?

■ What the Brady Law accomplished?

■ What the Law Enforcement Officers Safety Act (LEOSA) allows and

what its three goals are?

Do You Know . . .

Introduction The Second Amendment protects the “right of the people to keep and bear arms.”

However, the amendment also begins with a phrase explaining its purpose: that a

“well-regulated militia” is “necessary to the security of a free state.” At a time when

personal freedoms and concerns for self-protection are in political debate with

whether more guns means more safety, the Second Amendment is being subjected

to careful scrutiny.

What exactly does this brief but controversial amendment mean? Does this

phrase mean that the people are allowed to bear arms only if they are part of a mili-

tia or defending this country? Does it mean anyone can possess any gun any time?

Can guns be used for national defense but not for self-defense? These questions are

part of the ongoing debate over gun control and the Second Amendment.

This chapter begins with a brief historical background on the Second Amendment

and a look at how interpretation of this amendment has fueled the debate concerning

individual-versus-state rights in matters of gun control. Then the slow start regarding

early case law and the Second Amendment is presented, followed by the Heller deci- sion and how this case represented a shift in the Court’s interpretation of Second

Amendment rights. Next is a discussion of the incorporation of the Second Amend-

ment, making it applicable to the states, and a look at some of the variation in state

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168 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

and local gun laws. Then federal regulations aimed at gun control are examined,

followed by a discussion of the association between guns, crime, and violence. Cases

governing the police response to gun possession reports are covered next. The chap-

ter concludes with a consideration of the current gun control debate, gun control as a

political issue, and whether finding common ground and a compromise is possible.

Historical Background The Second Amendment, like the rest of the Constitution, was drafted in a time when

fear of tyranny from a strong central government was uppermost in the new Ameri-

cans’ minds. During the colonial period and the country’s earliest years, a permanent

army was not possible because of lack of funding and personnel, as well as organi-

zational challenges. In many ways, the colonists were on their own and needed to be

prepared, especially with Britain challenging their new country. The result: forma-

tion of state militias. A militia was a group of citizens who defended their commu-

nity as emergencies arose. Militias consisted mainly of able-bodied adult male

civilians and some professional soldiers when available and necessary. Militias did

not encompass the entire national population but did provide necessary protection

and a sense of security.

If militia members were called to service, they were to bring

their own arms and ammunition. The private populace’s arms

made up the militia’s arms. Most states mandated that all male

citizens between certain ages, for instance 18 to 45, be members of

the militia. States directed that these males were to be armed and

taught basic military skills and protocol. In Federalist Paper Number 46, James Madison emphasized to citizens they had “the advan- tage of being armed, which the Americans possess over the people

of almost every other nation.”

Some suggest firearms are part of the U.S. fabric. Indeed, the U.S. attitude

toward weapons arose from the practical need for the pioneers to protect themselves

against any number of threats, as well as the philosophical belief that they needed

to protect themselves from political tyranny. Today, however, a divide exists among

citizens regarding guns and gun ownership. To many, a gun is a symbol of violence

and aggression, but to others it symbolizes self-sufficiency, independence, and per-

sonal safety. Such emotional imagery may stand in the way of intelligent debate.

The Debate: Interpreting the Second Amendment In 1794, the militia was composed of all free male citizens, armed with their own

muskets, bayonets, and rifles. Now, the militia is generally considered to consist of

National Guard units in every state, armed with government-supplied and govern-

ment-owned sophisticated modern weaponry. How might the great differences in

today’s militia from that in 1794 affect the interpretation of the Second Amendment?

Modern-Day Militias in the United States

Confrontations between individuals and government continue to occur in this coun-

try involving those some consider the equivalent of modern militia members, only

militia an armed group of citizens who defend their

community as emergencies arise

The militia was considered to be the entire adult male populace of a state. They were not simply allowed to keep arms but were at times required to do so by law.

A central controversy over the Sec ond Amendment is wh et her people have a right to bear arms as individuals rather than only as part of a militia.

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Chapter 6 The Second Amendment: The Gun Control Controversy 169

taking a stand for their own freedom. In 1992, at Ruby Ridge in Idaho, the FBI,

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and U.S. marshals were

involved in a standoff with an armed family who refused to obey conventional law

and stated, “The tyrant’s blood shall flow. . . . Whether we live or die we will not obey

you . . . war is upon our land.” The ensuing shootout, which ended with the deaths

of two family members and one law enforcement official, was a hotly debated action.

In 1993, a seven-week standoff occurred in Waco, Texas, between the Branch

Davidian religious group and the FBI and ATF. The siege initiated when the govern-

ment attempted to force access to the Branch Davidian compound while investigat-

ing allegations that included polygamy, child abuse, and illegal weapons possession.

The ordeal ended with the deaths of 74 compound members, who chose to burn to

death rather than surrender when the compound caught fire.

In 1996, an 81-day standoff occurred between the FBI and the Montana “Free-

men,” who considered themselves a Christian patriot group. The Freemen claimed

land as their own sovereign nation and refused to abide by laws with which they

disagreed. The situation was resolved peacefully. However, the subject will no

doubt continue to address the tension between the Constitution and individual

rights. Some people today feel much like those more than 200 years ago—that the

government has become too powerful and that individuals need to reclaim that

power, often with the firearms they believe they are entitled to possess.

The number of hard-core hate groups currently active in the United States

exceeds 1,000, up from 602 in 2000, and the overall number of active conspiracy-

minded antigovernment “patriot” groups, including militias and other organiza-

tions that view the federal government as part of a plot to take Americans’ guns

and destroy their liberties while creating a “one-world government,” has risen from

a mere 149 organizations in 2008 to an all-time high of 1,360 in 2012 (Potok, 2013).

By Robbie Brown (New York Times, September 11, 2012)

Five more people in southeast Georgia have been charged

with helping an antigovernment militia accused of killing two people.

District Attorney Tom Durden of the Atlantic Judicial Circuit said Tuesday

that five suspects had committed burglaries, thefts and car break-ins to

finance a militia called FEAR, or Forever Enduring Always Ready. Three

other people suspected of membership in the militia already face the death

penalty for the murder of a soldier and his girlfriend in December.

Prosecutors say the militia was formed by former soldiers at Fort Stewart

near Savannah. The group plotted several attacks, including poisoning the

apple crop in Washington State, attacking a dam and assassinating President

Obama. The five charged are Christopher Jenderseck, Adam Dearman,

Timothy Joiner, Anthony Garner and Randall Blake Dearman.

“Georgia: More Charges in Militia Plot”

IN THE NEWS

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170 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Again, the need to balance individual rights with those of the

government becomes apparent.

Balancing Individual and States’ Rights

Two opposing interpretations of the Second Amendment have

clashed in past decades and have revolved around the phrasing

of this amendment into two parts: a Prefactory Clause and an Operative Clause.

A Prefactory Clause announces a purpose but does not necessarily restrict the

Operative Clause. An Operative Clause identifies the action to be taken or prohib-

ited. The debate surrounding the Second Amendment centers around the Prefac-

tory Clause and the intentions of the founding fathers.

Individual Rights Proponents of “the right to bear arms,” including the

National Rifle Association (NRA), endorse an individual-rights interpretation

that would guarantee that right to all citizens. Individual rights

proponents see the amendment as primarily guaranteeing the

right of the people, not the states. Although they concede that a

state right is embodied within the amendment, that right is a

product of the more central individual right. By guaranteeing the

arms of the individuals who make up the militia, the Constitu-

tion guaranteed the militia’s arms. The collective right that pre-

serves the states’ militia is guaranteed only if the individual right

is first maintained.

The amendment is placed in close proximity to other individ-

ual rights, although the states are not expressly mentioned until

the Tenth Amendment. Madison’s notes state the amendments

were to relate first to private rights. Furthermore, arms were such a pervasive part

of colonial life that five state conventions recommended an amendment to guaran-

tee the right to bear arms.

Support for this view may be found in the Los Angeles riots that followed the

not-guilty jury verdict in the Rodney King case. Citizens cheered the shopkeepers

in Koreatown as they defended their property with weapons. A sobering lesson of

the Los Angeles uprising for many people was that the police cannot protect every-

one during a citywide emergency. Many gun owners, including a great many hand-

gun owners, cite defense against crime as their main reason for owning a gun.

Likewise, some activist groups argue that an armed citizenry is the best defense

against tyranny and that their thinking is in line with those who wrote the Second

Amendment. This view, however, has not, until recently, been supported by the

courts. The courts throughout history have consistently rejected the individual

rights view in favor of the states’ rights interpretation.

States’ Rights The Commerce Clause of the U.S. Constitution (Article 1, Sec-

tion 8, Clause 3) provides the legal foundation for much of the federal govern-

ment’s regulatory authority, including firearms. Those favoring a states’ rights

interpretation see the Second Amendment as protecting and modifying Article 1,

Section 8 of the Constitution, which grants Congress the power “to provide for the

calling forth of the Militia to execute the laws of the Union.” The purpose of the

amendment is to “assure the continuation and render possible the effectiveness of

Prefactory Clause announces a purpose but does

not necessarily restrict the

Operative Clause

Operative Clause identifies the action to be taken or prohibited

Commerce Clause section of the U.S. Constitution (Article 1,

Section 8, Clause 3) that provides

the legal foundation for much of

the federal government’s

regulatory authority, including

firearms

The number of militia groups in the United States increased dramatically fr om 2008 to 2012.

The two opp osing interpret ations of the Sec ond Amendment involve wh et her the amendment guarantees individuals’ rights to keep and bear arms or wh et her it guarantees the states fr eedom fr om federal government infr ingement on this right.

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Chapter 6 The Second Amendment: The Gun Control Controversy 171

such forces” (United States v. Miller, 1939). Furthermore, the Second Amendment contains a sort of mini-preamble, clearly proclaiming as its purpose the fostering of

a “well-regulated Militia,” a purpose extraneous to one allowing individual posses-

sion of weapons for use against fellow citizens. Consequently, the courts have

consistently interpreted the Second Amendment as allowing states to regulate pri-

vate gun ownership.

This interpretation is linked to the traditional Whig fear of standing armies. The

amendment preserves the states’ power to defend against foreign and domestic

enemies, and it reduces the need for a large standing army, which was seen as

inherently contrary to preserving a free, democratic people.

Early Case Law Regarding the Second Amendment: A Slow Start Federal regulation of firearms possession was virtually nonexistent for more than

140 years after ratification of the Bill of Rights. The first notable case involving the

Second Amendment was United States v. Cruikshank (1875), in which the U.S. Supreme Court, responding to a claim of a right to bear arms for a lawful purpose,

ruled, “This is not a right granted by the Constitution. . . . The Second Amendment

declares that it shall not be infringed; but this, as has been seen, means no more

than it shall not be infringed by Congress.”

Despite this decision, more than half a century passed before the federal govern-

ment made an effort to regulate the possession of firearms, mainly because the Court

had little reason to interpret the amendment. The National Firearms Act of 1934 was

the first such effort at federal regulation. Section 11 of the Act forbade a person “who

has not in his possession a stamp-affixed order (from the person requesting the fire-

arm) to ship, carry or deliver any firearm in interstate commerce.”

One of the first important rulings on the Second Amendment involved this act.

Jack Miller was convicted of violating the National Firearms Act by feloniously

transporting a double-barreled, 12-gauge shotgun (having a barrel less than

18 inches) from Oklahoma to Arkansas (United States v. Miller, 1939). The district court granted the defense a demurrer, a request that a suit be dismissed because

although the facts are true, they do not sustain the claim against the defendant. The

United States appealed the demurrer and certiorari was granted. The Supreme

Court interpreted the Second Amendment as providing for maintaining a militia:

“With the obvious purpose to assure the continuation and render possible the effec-

tiveness of such forces [as outlined in Article 1, Section 8 of the Constitution] the

declaration and guarantee of the Second Amendment were made. It must be inter-

preted and applied with that view in mind.”

This case indicates that the amendment protects only arms that bear some

relation to preserving the militia. The Court held, “In the absence of any evidence

tending to show that possession or use of a shotgun having a barrel of less than

18 inches in length, at this time, has some reasonable relationship to the preserva-

tion or efficiency of a well-regulated militia, we cannot say that the Second

Amendment guarantees the right to keep and bear such an instrument.” Although

this decision held that a law prohibiting transportation of unregistered shotguns

in interstate commerce was not unconstitutional, any precedent established by

demurrer a request that a suit be dismissed because the

facts do not sustain the claim

against the defendant

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172 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Miller is debatable because the case dealt with the possession of not just any gun but of a specific type of gun.

The decision was not intended to be a broadly sweeping deci-

sion that designated which arms are protected and which are not.

The Court also clearly stated its position on individual rights and

the Second Amendment: “The right to keep and bear arms is not

a right conferred upon the people by the federal constitution. Whatever rights in

this respect the people may have depend upon local legislation; the only function

of the Second Amendment being to prevent the federal government and the federal

government only from infringing on that right.”

This position was reiterated later in Stevens v. United States (1971), when a federal circuit court held that the Second Amendment applies “only to the right

of the state to maintain a militia and not to the individual’s right to bear arms,

there can be no serious claim to any express constitutional right of an individual

to possess a firearm.”

A Shift in Interpretation: The Heller Decision In the 70 years following Miller, lower federal and state courts interpreted the Sec- ond Amendment in more than 30 cases, and in every case except one, the courts

held that the amendment referred to the right to keep and bear arms only in con-

nection with a state militia. The aberrant decision came in United States v. Emerson (1999), when U.S. District Judge Sam R. Cummings went against all federal court

precedent and restored a domestic abuser’s firearms, citing the Second Amendment

as guaranteeing the individual’s right to keep and bear arms.

The Supreme Court has ruled on the amendment relatively few times compared

with contests over other amendments. Until recently, United States v. Miller (1939) was the only Supreme Court case to specifically address the Second Amendment’s

scope. Most of the adjudication has been at the federal district level and has seldom

gone beyond the court of appeals. The Supreme Court has repeatedly denied cer-

tiorari in cases in which the individual right to bear arms is at issue.

However, in District of Columbia v. Heller (2008), the Supreme Court took a stand on the controversy. Dick Heller was a special DC police officer who applied to reg-

ister a handgun he wished to keep at home, but his application was denied. A

District of Columbia law bans handgun possession. The law authorizes the police

chief to issue one-year licenses but requires residents to keep lawfully owned fire-

arms unloaded and disassembled or bound by a trigger lock or similar device.

Heller sued the city on Second Amendment grounds. The district court dis-

missed the suit, but the DC Circuit reversed, holding that the Second Amendment

protects an individual’s right to possess firearms and that the city’s total ban on

handguns, as well as its requirement that firearms in the home be kept nonfunc-

tional even when necessary for self-defense, violated that right. The Supreme Court

affirmed, holding,

The Second Amendment protects an individual right to possess a firearm uncon-

nected with service in a militia, and to use that arm for traditionally lawful

purposes, such as self-defense within the home.

In United States v. Miller (1939) the Court rec ognized a state right rather than an individual right to bear arms.

In 1971 the courts ruled that there was no express right of an individual to keep and bear arms (Stevens v. United States ).

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Chapter 6 The Second Amendment: The Gun Control Controversy 173

The Amendment’s Prefactory Clause announces a purpose

but does not limit or expand the second part, the Operative

Clause. The Operative Clause’s text and history demonstrate

that it connotes an individual right to keep and bear arms.

Heller was important because it marked the first time the Court had ruled that the Second Amendment protects an

individual right to own guns. In reality, however, the ruling

affected only the federal government and Washington, DC, by

virtue of its federal nature, because, at that point, the Second Amendment had

not yet been incorporated. Heller did, however, open the door to incorporating the amendment.

Incorporation of the Second Amendment In Presser v. Illinois (1886), the Court refused to incorporate the Second Amend- ment into the Fourteenth Amendment. Herman Presser was part of a citizen

militia group of armed ethnic German workers, associated with the Socialist

Labor Party. The group had been formed to counter the armed private armies of

companies in Chicago. The indictment charged that Presser, on September 24,

1879, “did unlawfully belong to, and did parade and drill in the city of Chicago

with an unauthorized body of men with arms, who had associated themselves

together as a military company and organization, without having a license from

the Governor, and not being a part of, or belonging to, ‘the regular organized

volunteer militia’ of the State of Illinois, or the troops of the United States.” A

motion to dismiss the indictment was overruled. Presser then pleaded not guilty,

and, with both parties having waived a jury trial, the case was tried by the court.

In refusing to incorporate the Second Amendment into the Fourteenth Amend-

ment the Court stated,

We think it clear that the sections under consideration, which only forbid bodies

of men to associate together as military organizations, or to drill or parade with

arms in cities and towns unless authorized by law, do not infringe the right of

the people to keep and bear arms. But a conclusive answer to the contention that

this amendment prohibits the legislation in question lies in the fact that the

amendment is a limitation only upon the power of congress and the national

government, and not upon that of the state.

The Court found Presser guilty and sentenced him to pay a fine of $10.

In dictum (the court’s side opinion) on a case that involved illegal search and

seizure, Justice William Douglas summed up the federal position on gun control

(Adams v. Williams, 1972): “A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amend-

ment. . . . There is under our decisions no reason why stiff state laws governing the

purchase and possession of pistols may not be enacted.”

The Second Amendment remained unincorporated until 2010, when McDonald v. Chicago held that the right of an individual to “keep and bear arms” is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states.

The decision cleared up the uncertainty left in the wake of Heller on the scope of gun rights in regard to the states.

dictum (plural dicta) statements by a court that do not

deal with the main issue in the

case or an additional discussion

by the court

The Supreme Court stated in Dist rict of Columbia v. Heller (2008) that the Sec ond Amendment prot ect s an individual’s right to possess a fi rearm unconnect ed with service in a militia.

CASE IN BRIEF

District of Columbia v. Heller

(2008)

ISSUE Is the Second Amend- ment violated by a provision of

the DC code that bans the pos-

session of functional handguns in

the home?

RULING Yes. The Second Amendment protects an

individual’s right to possess a

functional handgun in one’s

home and to use it for tradition-

ally lawful purposes, regardless

of any connection to the militia.

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174 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

After Heller, McDonald et al. challenged the City of Chicago and the Village of Oak Park laws that banned almost all handgun possession by private individuals,

asserting the ban left them vulnerable to criminals. The Seventh Circuit previously

had upheld the constitutionality of the handgun ban and, relying on precedent

cases, affirmed that Heller explicitly refrained from voicing an opinion on whether the Second Amendment applied to the states. However, the Supreme Court held

that “the Fourteenth Amendment incorporates the Second Amendment right, rec-

ognized in Heller, to keep and bear arms for the purpose of self-defense.” The Court reversed and remanded, holding that the right to keep and bear arms is fundamen-

tal to our scheme of ordered liberty and that it was clear that the framers of the

Fourteenth Amendment deemed such a right as fundamental.

The day the case was decided, Paul Helmke, president of the Brady Center and

Brady Campaign to Prevent Gun Violence, issued the following statement:

We can expect two things as a result of today’s decision by the U.S. Supreme

Court in McDonald v. Chicago: the gun lobby and gun criminals will use it to try to strike down gun laws, and those legal challenges will con-

tinue to fail.

We are pleased that the Court reaffirmed its language in

District of Columbia v. Heller that the Second Amendment indi- vidual right to possess guns in the home for self-defense does

not prevent our elected representatives from enacting com-

mon-sense gun laws to protect our communities from gun

violence. We are reassured that the Court has rejected, once

again, the gun lobby argument that its “any gun, for anybody,

anywhere” agenda is protected by the Constitution. The Court

again recognized that the Second Amendment allows for rea-

sonable restrictions on firearms, including who can have them

and under what conditions, where they can be taken and what

types of firearms are available.

Chicago can amend its gun laws to comply with this ruling while continuing

to have strong, comprehensive and Constitutional gun laws, just as Washington,

DC, has done. After the Heller decision, at least 240 legal challenges have been brought to existing gun laws, nearly all of which have been summarily dis-

missed. There is nothing in today’s decision that should prevent any state or

local government from successfully defending, maintaining, or passing, sensi-

ble, strong gun laws. (“Statement of Paul Helmke,” 2010)

Variation in State and Local Gun Laws In Heller, Justice Antonin Scalia, writing for the 5–4 majority, noted, “Like most rights, the right secured by the Second Amendment is not unlimited. . . . Nothing in our

opinion should be taken to cast doubt on longstanding prohibitions on the posses-

sion of firearms by felons and the mentally ill, or laws forbidding the carrying of

firearms in sensitive places such as school and government buildings, or laws impos-

ing conditions and qualifications on the commercial sale of arms.” Thus, despite the

incorporation of the Second Amendment right to keep and bear arms, Heller left open two important questions: (1) what are the limits and contours of the right to own a

MYTH The Constitution asserts that the

right to own a handgun cannot be

limited or restricted in any fash-

ion. A person can own any gun

and carry it anywhere in anyway.

REALITY On the contrary, the Court’s ruling

in Heller affirmed that some

people can be prohibited from

possessing a gun, some places

may prohibit guns, and sales of

guns may be regulated. The Court

emphasized that nothing in the

Heller opinion casts doubt on

these facts.

CASE IN BRIEF

McDonald v. City of Chicago

(2010)

ISSUE Is the Second Amend- ment applicable to the states?

RULING Yes. The Fourteenth Amendment’s Due Process

Clause has long been the vehicle

for applying constitutional rights

to the states, and because the

right to keep and bear arms for

self-defense is “fundamental to

the Nation’s scheme of ordered

liberty” and “deeply rooted in this

Nation’s history and tradition,”

the right should be applied to the

states through it.

In McDonald v. Chicago (2010) the Supreme Court, holding that the right to keep and bear arms was among those fundamental rights nec ess ary to our system of ordered liberty, ruled that the Sec ond Amendment does app ly to the states and incorporated it under the Fourteenth Amendment.

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Chapter 6 The Second Amendment: The Gun Control Controversy 175

gun (e.g., types of guns, magazine capacity, etc.), and (2) what test or level of scrutiny

should be applied when evaluating these laws? It is in the effort to answer these

questions that variation among state and local gun laws are identified.

One point of contention in contemporary gun control debate centers on what

standard of review a court should use to evaluate laws that impose a burden on a

person’s Second Amendment right. For example, in Gowder v. City of Chicago (2012), the federal district court analyzed an ordinance under a “text, history, and tradi-

tion” approach to explain why the law was unconstitutional. In contrast, the court

in United States v. Decastro (2012) used an analysis that reserved heightened scrutiny for those laws that substantially burden the right to bear arms. To show when a

heightened form of scrutiny is unnecessary, the Decastro court explained that a “law that regulates the availability of firearms is not a substantial burden on the right to

keep and bear arms if adequate alternatives remain for law-abiding citizens to

acquire a firearm for self-defense.” In addressing the scrutiny requirement, Judge

Diane S. Sykes observed in the now-vacated Skoien panel opinion:

The Second Amendment is no more susceptible to a one-size-fits-all standard of

review than any other constitutional right. Gun-control regulations impose vary-

ing degrees of burden on Second Amendment rights, and individual assertions

of the right will come in many forms. A severe burden on the core Second

Amendment right of armed self-defense should require strong justification. But

less severe burdens on the right, laws that merely regulate rather than restrict,

and laws that do not implicate the central self-defense concern of the Second

Amendment, may be more easily justified. (United States v. Skoien, 2009)

States retain the right to impose stricter regulations related to firearms than

those required by the federal government. Before looking at federal regulation of

firearms, consider first how states differ in their laws pertaining to concealed carry,

defense of one’s home and restrictions on the types of firearms legally allowed.

Concealed Carry Laws

States vary in their laws regulating concealed carry, or carrying a concealed weapon

(CCW), also called right-to-carry (RTC). Some states have laws that say carrying a

concealed weapon is a citizen’s basic right. These states allow permits to be easily

obtained, provided the gun buyer meets certain background requirements, includ-

ing not having violated certain laws or been determined to be mentally ill. Some

states also require the completion of classroom and range training courses. Other

states limit CCW permits to when employment or personal safety justifies it.

Researchers at Johns Hopkins University Center for Gun Policy and Research

provide examples reflecting the array of past and present legislation, including a

Virginia law limiting people to buying only one handgun per month; a Washington,

DC, law banning most new handgun sales to the public (since relaxed); and a Mary-

land law prohibiting sales of low-cost, so-called Saturday-night specials. Although

some states require licensing handgun owners or registering guns, or both, other

states have sought to require the government to issue a permit unless they have a

compelling reason not to.

Many states have established “gun-free zones” around schools, hospitals, court-

houses, venues for public gatherings, and other “sensitive” areas, with conspicuous

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176 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

signs prohibiting guns on the premises, violation of which is grounds for revocation

of an offender’s concealed carry permit. How effective such signs are is debatable.

It is likely that only law-abiding citizens will adhere to them. Advocates of gun-free

zones believe such designations make people feel safer, whereas critics note that

those wishing to commit egregious crime such as mass murder actually choose

such areas because those inside are disarmed and therefore less able to fight back.

In United States v. Lopez (1995), the Supreme Court held 5–4 the federal law ban- ning guns near schools to be unconstitutional, effectively striking down the Gun-Free

School Zones Act. Although Justice Department lawyers argued that the law was a

legitimate extension of Congress’s power to regulate interstate commerce, Chief Jus-

tice William H. Rehnquist found the law “has nothing to do with commerce or any

sort of enterprise.” This overturning of the Gun-Free School Zones Act may not have

much practical effect, however, because more than 40 states, exercising their right to

pass laws controlling guns, have banned possession of handguns near schools.

Police departments commonly seek restrictions on their officers’ off-duty activi-

ties. However, when such restrictions impinge on officers’ constitutional rights,

obvious problems ensue. Such was the case in Edwards v. City of Goldsboro, N.C. (1999). In 1995, North Carolina enacted a concealed carry handgun bill that enabled

citizens to carry concealed handguns after mandatory training and screening.

Sergeant Kenneth Edwards, a 20-year veteran of the City of Goldsboro’s police

department and a firearms instructor, had completed specific training to teach the

concealed carry course. To run his own part-time business, he obtained a business

license, scheduled instructional classes to be held during off-duty time at a private

location, and submitted a request for off-duty employment.

The police chief, a vocal opponent of the concealed carry law, denied Edwards’s

request for off-duty employment because of the issues that surround carrying a

weapon. Edwards argued that the chief, motivated by personal and political rea-

sons, had issued an illegal order prohibiting the officer’s expression and associa-

tion. The Fourth Circuit Court of Appeals agreed, observing that the court must

“balance the interests of the (public employee), as a citizen, in commenting upon

matters of public concern, and the interest of the (government), as an employer, in

promoting the efficiency and public services it performs through its employees.”

The Court concluded the balancing test weighed in favor of Edwards: “We cannot

discern any legitimate interest of the defendants in preventing a police officer of the

city from conducting a concealed handgun safety course for the public that is a

creature of state law.”

Castle Laws

Castle laws are passed by states, and not all states have such laws. A castle law is

a legal claim based on English common law that designates one’s place of residence

(or, in some states, any place legally occupied, such as one’s car or place of work)

as a place in which one enjoys protection from illegal trespassing and violent attack.

It gives a person the legal right to use deadly force to defend that place (“A man’s

home is his ‘castle’”), and any other innocent persons legally inside it, from violent

attack or an intrusion that may lead to violent attack. Legally, use of deadly force

that actually results in death may be defended as justifiable homicide.

One state with a castle law is Indiana, which has had a codified Castle Doctrine

since 2006. Under this statute, a person is justified in using reasonable force against

castle law a legal claim based on English common law

that designates one’s place of

residence (or, in some states, any

place legally occupied, such as

one’s car or place of work) as a

place in which one enjoys

protection from illegal trespassing

and violent attack

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Chapter 6 The Second Amendment: The Gun Control Controversy 177

any other person to protect themselves or a third party from what the person rea-

sonably believes to be the imminent use of unlawful force. Furthermore, a person

has no duty to retreat in his or her own home if they reasonably believe that that

force, including deadly force, is necessary to prevent serious bodily injury to them-

selves or a third party or the commission of a forcible felony. Finally, the statute

provides that no person in Indiana shall be placed in legal jeopardy of any kind

whatsoever for protecting themselves or a third party by reasonable means neces-

sary (Indiana Code (IC) 35-41-3-2). Essentially, this doctrine establishes both a

defense against criminal prosecution and immunity from civil liability for the use

of force against an intruder in one’s own home (Eldridge, 2012).

In March 2012, in the wake of Barnes v. State (2011), the Indiana legislature modi- fied the law, making it legal under certain circumstances for a citizen to invoke the

Castle Doctrine and use deadly force against anyone, including police officers, who

“unlawfully” intrudes into the citizen’s home, curtilage, or motor vehicle, again

with no duty to retreat. Eldridge (2012) cautions: “Ultimately, the implications of

this extension of use of force to ‘castle defenders’ in the modern era will likely result

in more violence exercised by people with less training and the further erosion of

respect for the authority of our institutions, officers, courts, and the rule of law.”

Some states have “Make My Day” Laws, a nickname referring to the classic line

spoken by character Harry Callahan (played by Clint Eastwood) in the 1983 film

Sudden Impact, “Go ahead, make my day,” and first used by Colorado in passing a 1985 statute that protects people against any criminal charge or civil suit if they use

force, including deadly force, against an invader of their home.

Other states have nicknamed their castle laws “Stand Your Ground” laws.

Florida’s “Stand Your Ground” law, passed in 2005, expanded the definition of jus-

tifiable self-defense and provided that anyone claiming to feel “threatened” no

longer had an obligation to retreat, call police, or avoid use of deadly force. This law

was at the center of the murder trial involving the shooting death of 17-year-old

Trayvon Martin by block watch-coordinator George Zimmerman. Since it passed in

Florida, at least 20 other states have enacted similar laws, intended to protect law-

abiding citizens forced to fend off home invaders, muggers, and carjackers. The mere

claim of fear provided the legal presumption that use of deadly force was justified.

Gun-control advocates immediately criticized the “Stand Your Ground” law

when it was signed in 2005, with the Brady Campaign to Prevent Gun Violence

handing out leaflets at the airport to warn visitors about the new law. The commu-

nication director for the Brady Center called the law unnecessary, claiming, “There

are some people in Florida who should be in jail who are not in jail because this new

law was passed. It is frightfully dangerous to encourage the most aggressive people

in society to take the law into their own hands” (Basu, 2010). The law has also com-

plicated once-routine homicide prosecutions, with one prosecutor stating, “We

have been forced to spend significant time and resources litigating for defendants

charged with violent crime. The law has the great potential to be misapplied and

could well protect violent criminals in specific cases” (Grimm, 2010). Defense attor-

neys, however, often present the opposite view, stating that the law is fact-specific

and can protect people from malicious prosecution (Basu, 2010).

Castle laws are significant in many cases involving the Fourth Amendment

right to be free from “unreasonable” searches and seizures by law enforcement, as

discussed in the following chapters.

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178 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Restrictions on Types of Firearms

Although some weapons, such as fully automatic “machine guns” and those

altered to be more conducive to criminal activity, such as sawed-off shotguns, have

always been illegal for most people to own (law enforcement personnel and

licensed collectors being the exception), what exactly constitutes a weapon or firearm has not been as easy to define. Some jurisdictions have included anything that

explodes or projects anything, including paintball guns and bows and arrows,

whereas others have sought to be more specific. The definition of “assault rifle” has

generated its own share of debate with the Federal Assault Weapons Ban (a provi-

sion of the Violent Crime Control and Law Enforcement Act of 1994).

MYTH A starter pistol or an “air gun” are

not firearms and are not subject

to federal or state laws.

REALITY Under the Gun Control Act of

1968, 18 USC Section 921 (a)(3),

a firearm is “any weapon (including

a starter gun) which will or is

designed to or may be readily con-

verted to expel a projectile by the

action of an explosive; the frame or

receiver of any such weapon; any

firearm muffler or firearm silencer;

or any destructive device. Such

term does not include an antique

firearm.” As the ATF notes, a

starter pistol is therefore a firearm,

but an air gun is not because it

uses compressed air, not an explo-

sive agent, to expel a projectile.

However, this is not to say state

laws do not or cannot regulate or

define air guns as firearms.

By Paul McEnroe and Glenn Howatt (Minneapolis/St. Paul

Star Tribune, January 21, 2013)

They knew the house far too well. It was where Christian Philip Oberender,

then 14 years old, had murdered his mother in a shotgun ambush in the fam-

ily rec room in 1995.

Now, 18 years later, Carver County Sheriff Jim Olson was sending his

deputies back to the home where Oberender still lives. Just two days earlier,

Olson had scanned the day’s shift reports and froze when he tripped over

Oberender’s name. A scan of a Facebook page then showed firearms spread

out like a child’s trophies on a bed inside the home, along with notes about

the Newtown, Conn., gunman who shot 20 children to death.

What Olson’s deputies found in the home in Watertown Township was

chilling: 13 guns, including semi-automatic rifles, an AK-47, a Tommy gun,

assorted shotguns and handguns, including a .50-caliber Desert Eagle.

Even more disturbing was the letter Oberender had written recently to his

late mother, Mary: “I am so homicide,” it said in broken sentences. “I think

about killing all the time. The monster want out. He only been out one time

and someone die.”

Today, Oberender sits in a Carver County jail cell on a charge of being a

felon in possession of firearms. And Olson, who investigated the 1995 murder

as a young detective, finds his investigators at the center of a case that

exposes the dangerous loopholes in the nation’s gun laws and Minnesota’s

system of criminal background checks.

Even though Oberender killed his mother with a firearm, even though he

was committed to the state hospital in St. Peter as mentally ill and dangerous

more than a decade ago, he was able to obtain a permit to purchase firearms

last May. That piece of paper gave Oberender, now 32, the ability to walk into

any licensed Minnesota retailer and buy any assault weapon or pistol on

the rack.

“Murderous ‘Monster’ Acquires an Arsenal”

IN THE NEWS

(Continued)

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Chapter 6 The Second Amendment: The Gun Control Controversy 179

Dozens of other Minnesotans judged by a court to be mentally ill have

also found that designation no barrier to obtaining deadly weapons.

A Star Tribune review of state court records found case after case in which individuals deemed mentally ill in judicial proceedings later wound up in

possession of guns and accused of violent crimes.

At least 84 people have been charged since 2000 with illegal gun posses-

sion or assault with a dangerous weapon even though they had previously

been committed by a judge as mentally ill. Of that group, 29 were charged

with multiple counts of weapons possession and nine were considered by a

judge to be mentally ill and dangerous.

Additionally, the Minnesota Bureau of Criminal Apprehension (BCA) has

more than 168,000 “suspense files”—records on Minnesotans who have been

arrested since 1990 but whose files are so incomplete that the state can’t deter-

mine if they should have the right to buy guns.

“The system failed in this case,” Olson said in an interview. “We are hav-

ing discussions with the BCA to make sure there aren’t similar things like this

hanging out there.”

Federal agents from the Bureau of Alcohol, Tobacco and Firearms are

working with Olson’s investigators to sort out which guns Oberender might

have bought from retailers using a permit he should never have possessed.

No Red Flags How did Christian Oberender succeed in obtaining a gun permit?

The answer lies in a combination of deceit on his part, failures in the state

court system, and haphazard data collection by state agencies, according to

interviews with law enforcement officials.

In Minnesota, a person seeking a permit to purchase an assault weapon or

pistol must submit an application to the local police or sheriff’s department.

There, the background check process begins with a query of the BCA’s sys-

tem. If no disqualifications show up—such as a violent criminal record or

mental illness commitment—the permit is granted.

No state permit is required to purchase a long rifle or a shotgun in

Minnesota. Buyers going to a licensed retailer must pass a federal back-

ground check at the counter—but those records can also be incomplete

because they are supplied to the FBI by state agencies.

Minnesota’s gun laws don’t require an applicant to provide a fingerprint

or a Social Security number to verify identity.

“This was one of our concerns during the ‘Conceal and Carry’ debate in

Legislature 10 years ago and it was beaten down like everything else,” said

Heather Martens, executive director of Protect Minnesota, a gun violence

prevention organization.

Martens said Oberender’s case highlights the reluctance of lawmakers to

tighten gun laws because they fear being accused of infringing on individual

rights. “Public schoolteachers have to go through a complete background

check, even including a fingerprint,” Martens said. “For buyers of assault

(Continued)

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180 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

weapons and pistols, law enforcement currently has only seven days to verify

the person’s identity and criminal history—otherwise, a permit is automati-

cally granted. We should at least allow police enough time to verify the per-

son’s identity.”

At the BCA, a spokesperson said the agency’s database will catch closely

matched names and aliases, but it would not snag a name like the one on

Oberender’s application.

In Oberender’s case, the first glitch was that he simply transposed his first

name and middle name on the gun permit application, apparently in an

attempt to avoid recognition by the BCA’s database.

Additionally, when Oberender applied for his permit, records show, he

lied about his mental health history, a move that triggered no red flag in the

computers—the BCA’s system doesn’t contain any state commitment records

of the mentally ill and dangerous.

“When we checked the record, there were no disqualifiers for a ‘Philip

Christian Oberender,’” said Carver Deputy Jason Kamerud.

Last week, investigators also learned that Oberender’s juvenile record—

where the murder of his mother is recorded—had not been attached to his

criminal history at the BCA. Carver investigators are still puzzled over that.

In a statement, BCA spokesperson Jill Oliveira said, “There were no data

submitted to the BCA about this individual; without it there can be no record.”

Loopholes The state’s criminal background system appears to contain another loophole

for violent felons and persons found mentally ill and dangerous who want to

escape scrutiny. Under state law, a person’s juvenile record is deleted from

the BCA’s database when the individual turns 28 unless a judge says other-

wise, Oliveira said. As a result, a person with a violent juvenile record—like

Oberender—might still qualify to buy a gun if there were no felonies on his

adult record.

State law requires the Minnesota Department of Human Services (DHS)

to provide local law enforcement agencies with records of people who have

been committed to institutional care for mental illness, if the applicant gives

consent. But in general, the BCA said, a court order for civil commitment is

classified as private data and is not available to the BCA.

“There is no way that BCA can have DHS’s commitment data,” Oliveira

said in a statement. In addition, about half of those committed by a court are

directed to community providers, not state facilities, thus leaving it to the

courts, not DHS, to ensure that the records are sent.

It’s unclear whether Oberender’s mental health history was ever entered

into any background check database.

In late 2011, DHS tried to streamline the process, opening an electronic

portal for background checks used by law enforcement officials. Last year an

estimated 32,000 checks were conducted, and about 500 people were flagged

(Continued)

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Chapter 6 The Second Amendment: The Gun Control Controversy 181

as potential risks. When that happens, the agency provides law enforcement

officials with a deeper check on people who could be disqualified.

DHS also checks the state Supreme Court information system, currently

the most accurate record of commitments, the agency said in a statement.

“However,” it added, “without additional identifying information, it may be

difficult to determine whether someone with a common name matches an

entry in the system.”

“Want to Hurt People” Oberender received three years of intensive treatment for his mental illness

as a juvenile, but in late 1998 was ordered committed as “mentally ill and

dangerous” to the St. Peter state hospital. Mental health professionals wrote

in court findings that they believed there was “a substantial likelihood that

Oberender will engage in acts capable of inflicting serious physical harm to

another.” There are apparently no public records of when he was released

from St. Peter. In a 2003 interview with the Star Tribune, Oberender said he spent a year in a halfway house after his release and believed he was turning

his life around thanks to “all kinds of treatment.”

The felony charge he now faces could put him in prison for up to five

years, or it could lead a judge to send him back to St. Peter for psychiatric

care.

Before his arrest, Oberender had been working as a skilled mechanic at a

local sanitation hauling company.

David Peterson, a co-worker and friend, said he believes his friend must

have been living two lives.

The two often spent time shooting guns behind Oberender’s home, at

targets ranging from old television sets to junk cars and pop cans, all the

while critiquing each weapon, he said. He said that Oberender told him that

he bought most of his guns at two licensed retail stores in the area and that

the weapons were all registered.

Oberender, he said, rarely mentioned his past, sharing only brief snippets

about the murder.

Still, Peterson said he felt so comfortable with Oberender that he invited

him to his home for social occasions and was planning on setting him up with

a date. “He is an excellent, great friend,” Peterson said.

Then there was the other life, the one where a self-described “monster”

lived inside the quiet young man.

“I think about killing all the time,” Oberender wrote. “Why god do I feel

like this? The monster want to hurt people. Guns are too fast. The monster

want it to be slow and painful. There is so much pain in my heart and soul.

Me want other to feel it.”

Sheriff Olson read the letter after his investigators inventoried their

evidence.

“It was chilling,” he said.

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182 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Federal Regulation and the Second Amendment Although until 2010 the Second Amendment was consistently interpreted to protect

the states’ rights from federal intervention, the federal government passed several

gun control laws before then. In 1938, the Federal Firearms Act was passed, requir-

ing dealers shipping firearms across state lines and importers to be licensed by the

federal government. In 1967, Congress passed the Omnibus Crime Control and Safe

Streets Act, a portion of which made possession of firearms by convicted felons

unlawful.

In 1968 after the assassinations of President John F. Kennedy, the Rev. Martin

Luther King, Jr., and Senator Robert Kennedy, the Gun Control Act was passed,

which banned federal licensees from selling firearms to prohibited persons, any-

one they knew or had reasonable cause to believe was or had been:

■ Under indictment for or convicted of a felony. ■ A fugitive. ■ A drug user. ■ Adjudicated a mental defective or committed to a mental institution. ■ Fit into other limited categories.

prohibited persons individuals to whom, under the

Gun Control Act, selling a firearm

is forbidden

Officer Weltz is sent to take a report of a domestic

assault. When he arrives, the victim, Julie Johnson,

explains that she and her husband, Jack Johnson,

were having an argument over the bills. The hus-

band became upset because he is out of work, and

she was mad because he stopped looking for a job.

He began drinking a lot of beer, and the argument

continued.

During a particularly heated exchange, Jack

slapped Julie on her cheek. After slapping Julie,

Jack left the house. He was still gone when the

officer arrived. Officer Weltz could see a red mark

on Julie’s cheek, which was slightly swollen.

Officer Weltz’s department has started an

initiative at prosecuting domestic violence more

effectively. Part of this initiative is that the offi-

cer is to ask the victim if the abuser/suspect has

any guns. If so, the officer is to take them for

“safekeeping” in an effort to keep any future

abuse from involving the gun. Also, if later con-

victed of domestic abuse, the abuser would not

be able to legally own a firearm because of fed-

eral law.

Officer Weltz asks Julie if Jack owns any guns.

She says that he owns a hunting rifle and a semiau-

tomatic handgun. She shows them to Officer Weltz,

who seizes them for safekeeping under his depart-

ment policy. He brings them to the station where

they are inventoried.

■ Does the taking of the guns for safekeeping violate procedural due process?

■ Would the length of time for “safekeeping” matter in making your decision?

■ Do you think anyone can own any gun, or is the government allowed to regulate ownership to some degree?

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Chapter 6 The Second Amendment: The Gun Control Controversy 183

The Supreme Court has ruled that the federal law that bars gun ownership by

convicted felons does not apply to those convicted in foreign courts. In Small v. United States (2005), the Court overturned the conviction of a man who bought a gun in Pennsylvania after serving more than three years in a Japanese prison for

smuggling guns into that country. Justice Stephen Breyer, writing for the majority,

said the phrase “convicted in any court” applies only to convictions in U.S. federal

or state courts, not to foreign courts.

The Gun Control Act also required the registration of “destructive devices,”

including cannons, antitank guns, and bazookas, and prohibited importation of

cheap, “junk” handguns, such as the $6 Saturday-night special that killed Sena-

tor Kennedy.

In 1986, Congress banned the purchase and sale of all fully automatic weapons.

All privately owned automatic weapons bought before 1986 were to be registered

but would remain in their owners’ hands.

The Brady Act

On November 30, 1993, President Bill Clinton signed the Brady Handgun Violence

Prevention Act, and on February 28, 1994, the Brady Act went into effect. The law

was named to honor Jim Brady, the press secretary to President Ronald Reagan,

who was shot during a 1981 assassination attempt on the President. Despite the

endorsement of four former presidents (Nixon, Ford, Carter, and Reagan) and the

active support of President Clinton, seven years were required for the Brady Bill to

get through Congress and become law.

The purpose of the law was to prevent prohibited persons from obtaining

handguns. The act imposed a national five-day waiting period and required local

law enforcement to conduct criminal background checks on all handgun purchas-

ers. The mandatory waiting period, however, was merely an interim provision

and expired on November 30, 1998. It was replaced by the permanent provision

of a mandatory, computerized National Instant Criminal Background Check Sys-

tem (NICS), which provides information for criminal background checks on all

firearm purchasers.

Until February 2004, the NICS did not include a review of ter-

rorist watch lists, according to the Government Accountability

Office (GAO). However, being named on such a list is not one of the disqualifying criteria under federal gun control laws. The ter-

rorist watch list was added so that federal officials might deter-

mine if terror suspects might be disqualified from buying a gun on

other grounds listed in the federal gun control laws.

In 1997 the Supreme Court ruled 5–4 in Printz v. United States that the federal government was not empowered to require state

or local law enforcement agencies to run background checks on

prospective gun buyers. According to the Court, the background-

check provision violated the principle of separate state sover-

eignty. Justice Scalia, writing for the narrow majority, stated, “The

federal government may neither issue directives requiring the

states to address particular problems, nor command the states’

officers, or those of their political subdivisions, to administer or

The Brady Act, pass ed in 1993, contained the interim provision of a mandatory fi ve-day waiting period on all handgun purchases . This provision was phased out and replaced in 1998 with the permanent provision of an instant, computerized criminal background chec k of all handgun purchasers. Some states still impose a waiting period on fi rearms purchases .

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184 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

enforce a federal regulatory program. Such commands are fundamentally incom-

patible with our constitutional system of dual sovereignty.”

By November 1, 1998, the Brady Act was modified so applicants can receive

immediate clearance to purchase a gun. The issuing law-enforcement agency can

contact the FBI by computer and either receive clearance or be denied the permit.

Unless federal computer records indicate that a purchaser is under indictment or

information for, or has been convicted of, a felony; has a dishonorable discharge;

has illegal alien status; or possesses any other possible disability, the purchaser may

be approved at the time.

Although acknowledging that any background check is better than no back-

ground check, critics of the instant check system say it sacrifices safety for conve-

nience because many centralized records are kept only at the state level, and many

more records, such as mental health records, may not be computerized. Also, rele-

vant records may not be identified in time, if at all.

The Brady Act does not prohibit states from enacting their own, longer waiting

periods. The constitutionality of this act continues to be challenged. Some jurisdic-

tions interpret the law differently. For example, the City of Kenneway, Georgia,

passed a law in 1982 mandating the head of each household to own at least one

firearm and have ammunition to “protect the safety, security and general welfare of

the city and its inhabitants.” However, because of what others say is an escalating

number of deaths and injuries resulting from guns, including those involving

youths, other jurisdictions are becoming increasingly strict.

The Violent Crime Control and Law Enforcement Act of 1994

In September 1994, Congress passed and President Clinton signed into law the

Violent Crime Control and Law Enforcement Act of 1994. This act banned the

manufacture of 19 different semiautomatic guns with multiple assault-weapon

A state law has been passed that forbids a person to

carry a gun “ready to use”—loaded, immediately

accessible (i.e., easy to reach), and uncased. Police

officers are exempted from the law, as is a person

on his or her own property (owned or rented), or in

his or her home, or in his or her fixed place of busi-

ness (i.e., does not apply to taxi drivers, delivery

drivers, or other mobile offices workers), or on the

property of someone who has permitted the person

to be there with a ready-to-use gun. Even carrying

an unloaded gun in public, if it is uncased and

immediately accessible, is prohibited, other than by

police and other excepted persons.

■ Is this law constitutional?

■ Do you think this law proposes a heavy burden on a person’s right to possess a gun?

■ What impact does the fact that this law regulates gun possession outside of one’s home have on its constitutionality?

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Chapter 6 The Second Amendment: The Gun Control Controversy 185

features, as well as copies or duplicates of such guns. Such weapons served no

legitimate sporting or hunting purpose but are the firearms of choice for terrorists,

drug dealers, and gang members. The act also prohibits transfer to or possession of

handguns and ammunition by juveniles, prohibits possession of firearms by people

who have committed domestic abuse, and provides stiffer penalties for criminals

who use firearms to commit federal crimes.

Despite strong support, the ban expired with a Sunset Clause (a set ending

time for legislation that is not renewed to prevent old law from remaining on the

books) in 2004, when after significant debate, Congress did not renew it. That same

year, federal legislation was passed, allowing off-duty and retired police officers to

carry concealed weapons, another controversial issue.

The Law Enforcement Officers Safety Act

In 2004, the Law Enforcement Officers Safety Act (LEOSA) was enacted. This federal

law allows a “qualified law enforcement officer” and a “qualified retired law

enforcement officer” to carry a concealed firearm in any jurisdiction in the United

States, regardless of any state or local law to the contrary, with two exceptions. Two

types of state laws are not overridden by the federal law, those being “the laws of

any state that (1) permit private persons or entities to prohibit or restrict the posses-

sion of concealed firearms on their property; or (2) prohibit or restrict the possession

of firearms on any state or local government property, installa-

tion, building, base or park.” LEOSA- qualified persons must

obey whatever state laws apply on those two points. They are

free to disregard all other state and local laws that govern the

carrying of concealed firearms.

The International Association of Chiefs of Police (IACP)

strongly opposed the legislation, concerned about officer and

citizen safety, use of force and firearm-training standards, offi-

cer identification and eligibility issues, supervision of retired

police, liability, and a firm belief that states and localities

should determine who is eligible to carry firearms in their

communities.

Wethal (2010, p. 30) notes, “Since the Act was established in

2004, many states, agencies and officers have struggled with

comprehension and implementation of the law.” This results

partly from its unclear language about who is qualified. Some

agencies fear liability could result from issuing a certificate pur-

suant to federal law, but Wethal (p. 35) asserts, “Those who

properly apply the law will not have to worry about lawsuits.”

Other Proposed Federal Legislation

When legislation is proposed, it first goes to committee. If approved, it is intro-

duced in the House of Representatives (H.R.) and given a number. If passed by the

House, the legislation goes to the Senate (S.) and is given a new number. Its status

can be tracked through GovTrack.us.

Recent legislation has been proposed to curb terrorists’ access to firearms.

The Denying Firearms and Explosives to Dangerous Terrorists Act (H.R.2159)

Sunset Clause a set ending time for legislation that is not

renewed to prevent old law from

remaining on the books

The Law Enforcement Offi cers Safet y Act allowing “qualifi ed” active and ret ired law enforcement offi cers to carry concealed weapons anywhere in the United States has three goals: (1) to es tablish equality bet ween local LEOs and their federal counterparts wh o already carry nationwide, (2) to create an unpaid homeland sec urity force to help prot ect the nation, and (3) to allow qualifi ed current and ret ired LEOs the means to defend themselves and their families against criminals.

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186 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

aims to prohibit those who are on the terror watch list from purchasing firearms

(Ward, 2010).

Another proposed law, the Gun Show Background Check Act (S.843), seeks to

correct an oversight in the Federal Gun Control Act of 1968 exempting gun sales

and transfers between private individuals. The act would require all vendors at gun

shows to hold a federal firearms license (FFL) and to conduct a background check

to determine whether purchasers are prohibited from purchasing and possessing a

gun. At the 5,200 traditional gun shows held annually across the country, many

vendors do not posses such licenses, allowing otherwise “prohibited persons” to

obtain guns legally (Ward, 2010). Other pending legislation includes S.150, the

Assault Weapons Ban of 2013; H.R.1369, the Firearm Risk Protection Act of 2013,

requiring liability insurance to purchase a firearm); and S.54, the Stop Illegal

Trafficking in Firearms Act of 2013.

In July 2010 a forum was held before the subcommittee on Crime and Terrorism

and Home Security on the proposed Gun Show Loophole Closing Act of 2009 (H.R.

2324). A Virginia Tech survivor, Colin Goddard, testified about his experience on

April 16, 2007, when he was shot four times. Goddard also showed footage of his

undercover investigation of gun shows, highlighting how easy it was to buy guns

from unlicensed sellers who collect no tax, complete no paperwork, conduct no

background checks, and do not even require buyers to show a driver’s license. At

the forum, Goddard was joined by Tom Mauser, whose son was killed at Colum-

bine (Colorado) High School with guns bought at a gun show (Castellano, 2012).

Guns, Crime, and Violence As of 2010, an estimated 300 million firearms were privately owned by civilians in

the United States, of which, about 100 million were handguns (Agresti and Smith,

2013). Data from the U.S. Department of Justice’s Bureau of Justice Statistics indi-

cates that a total of 478,400 fatal and nonfatal violent crimes were committed with

a firearm in 2011, and that firearm violence accounted for roughly 70 percent of all

homicides from 1993 to 2011 (Planty and Truman, 2013). According to the Crime in the United States 2011, offenders used firearms in 67.7 percent of the nation’s mur- ders, 41.3 percent of robberies, and 21.2 percent of aggravated assaults. The Brady

Center website includes the following statements (“About Gun Violence,” 2013):

■ One in three people in the United States know someone who has been shot. ■ The U.S. firearm homicide rate is 20 times higher than the combined rates of

22 countries that are our peers in wealth and population. ■ Although guns can and have been used successfully in self-defense in the

home, a gun in the home is 22 times more likely to be used to kill or injure in a

domestic homicide, suicide, or unintentional shooting than to be used in

self-defense. ■ Firearm homicide is the second-leading cause of death (after motor vehicle

crashes) for young people ages 1 to 19 in the United States. ■ In 2007, more preschool-aged children (85) were killed by guns than police

officers were killed in the line of duty. ■ Nine out of 10 Americans agree that we should have universal background

checks, including 3 out of 4 NRA members.

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Chapter 6 The Second Amendment: The Gun Control Controversy 187

■ Since the Brady Law was initially passed, about 2 million people have been

blocked from purchasing a gun as a result of a background check. About half

of those were felons. ■ Unfortunately, our current background check system only applies to about

60 percent of gun sales, leaving 40 percent (online sales, purchases at gun

shows, etc.) without a background check.

The Police Executive Research Forum (PERF) looked at the gun control issue as

seen at the local level, which is where the IACP firmly believes it belongs (Wexler,

2010). The PERF conducted two surveys and then held a summit to report and dis-

cuss the findings. The main participants were chiefs of police, but also invited to the

summit were representatives of the two major gun groups and the Brady Center

because, “you don’t make peace with your friends” (Wexler, 2010). Local police

linked gun crime most closely to drug and gang issues, with nearly two-thirds of

responding agencies identifying these two factors as “very important” in causing

their local gun crime.

A survey conducted by Mayors Against Illegal Guns, an association of more

than 500 mayors, found that nearly half of the guns that crossed state lines and were

used in crimes in 2009 were sold in just 10 states: Georgia, Florida, Virginia, Texas,

Indiana, Ohio, Pennsylvania, North Carolina, California, and Arizona. According to

the Mayors’ report, those states have more relaxed gun laws, suggesting that

“criminals and gun traffickers may favor certain states as the sources of guns”

(“Report: 10 States Sell Half,” 2010),

Lott, in the best seller More Guns, Less Crime (1998), set forth the argument that citizens carrying guns makes us a safer nation. This same argument is presented in

The Bias against Guns (2003, p. 3), in which Lott asserts, after examining how crime rates change over time in relation to concealed carry laws: “Gun control disarmed

law-abiding citizens more than criminals, which meant that criminals had less to

fear from potential victims. Guns not only make it easier for people to harm others,

guns also make it easier for people to protect themselves.”

Donohue (2003, p. 399) presents an opposite finding: “Our best, albeit admit-

tedly imperfect, statistical evidence indicates that increases in permit rate growth

may lead to slight increases in crime.”

Research by Kovandzic and Marvell (2003, p. 363) found little evidence that

increases in the number of citizens with concealed-handgun permits reduce or

increase rates of violent crime: “There is little, if any, relationship between the num-

ber of RTC permits and violent crime. That is, the level of gun carrying by citizens

neither deters nor exacerbates crime.” Similar findings were reported by the

Centers for Disease Control and Prevention (CDC), whose independent task force

of public health officials and other scientists reviewed 51 evaluations of gun laws

and “found insufficient evidence to determine the effectiveness of any of the fire-

arm laws” (Hann et al., 2003).

Unlike the average citizen, law enforcement officers are well trained in gun safety,

yet their training does not exempt them from becoming victims of gun violence. Data

from the FBI indicates that of the 72 law enforcement officers feloniously killed in 2011

in the line of duty, most (63) were killed with firearms, and of these, 50 were killed

with handguns (Law Enforcement Officers Killed and Assaulted, 2011). Furthermore, 46 of these officers were wearing body armor when they were killed with firearms.

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188 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Nowicki (2010, p. 6) notes a “disturbing trend” emerging: “The number of

occurrences of multiple officers being killed by one perpetrator, called ‘cluster kill-

ings,’ is on the rise. Clusters of multiple officers provide a potentially target-rich

environment, which appears to be fueling shooting rampages.” Such cluster

killings included the four officers shot in Seattle, Washington; four in Oakland,

California; three in Pittsburgh, Pennsylvania; and two in Crestview, Florida (Long,

2009). Pennsylvania, the state with the most gun-related officer deaths in 2009, also

has some of the strictest gun laws in the country, whereas other states such as

Louisiana, Oklahoma, and Kentucky have little oversight and had few, if any,

officer gun deaths in 2009 (Long, 2009). People on both sides of the gun-control

debate cite statistics such as these to prove their points.

Cases Governing Police Response to Gun Possession Reports Although courts, including the Supreme Court, support efforts of law enforcement

to control guns used in crimes, they have been reluctant to relax search-and-seizure

requirements of government in cases merely because they may involve weapons.

Because in most states carrying a properly licensed handgun is legal, a report that

a person has a handgun, with no additional information regarding criminal activity,

may not create reasonable suspicion that a crime is being or will be committed, thus

justifying a Terry stop.

Officer Jazinski is called to a local gas station on a

report of a man with a gun. The dispatcher tells

Jazinski that the caller sees a man putting gas in his

car, the man appears very angry, and he has a

handgun in a holster on his belt.

The officer arrives and finds the man described

by the caller. The man also has a handgun, in a

holster, and on his side. By this point, the man has

started to argue with others pumping gas.

Officer Jazinski approaches the man, orders

him to put his hands up, quickly handcuffs him,

and takes the man’s gun from his holster. The man

is belligerent with the officer but complies with all

the orders and eventually calms down.

The man tells Officer Jazinski that he has a per-

mit to carry the handgun. The man also adds that

he is in fact angry because he had a bad day at

work, and this led to a verbal argument with other

customers.

Checks are run and the man is found to have a

permit to carry. Your state allows anyone with a

permit to carry the handgun concealed or out in

the open. The man is in compliance with all appli-

cable laws. There was no crime at the gas station

either. He is un-handcuffed and given his gun. He

gets into his car and leaves.

■ Are the actions by the officer constitutional?

■ Is the fact that the man is arguing with custom- ers when the officer arrives important?

■ What if the man was not arguing with others and was not belligerent when approached by the officer?

Constitutional Law in ACTION

e n

g a

g e

L e

a rn

in g

2 0

1 5

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Chapter 6 The Second Amendment: The Gun Control Controversy 189

Another disturbing trend is the increase in the number of people who willfully,

in public, attempt to instigate confrontations with the police by openly carrying a

gun. Fortunately for officers, these encounters are often recorded.

A unanimous Supreme Court ruling in Florida v. J.L. (2000) established that “in order for an anonymous tip to be reliable enough to justify police action, even when

a firearm is reported, it must do more than simply describe a suspect’s appearance

and location.” Writing for the Court, Justice Ruth Bader Ginsburg stated, “Firearms

are dangerous, and extraordinary dangers sometimes justify unusual precautions,

[but] an automatic firearms exception to our established reliability analysis would

rove too far. Such an exception would enable any person seeking to harass another

to set in motion an intrusive, embarrassing police search of the targeted person

simply by placing an anonymous call falsely reporting the target’s unlawful car-

riage of a gun.”

Likewise, in Pennsylvania v. D.M. (2000), the Supreme Court held that an anony- mous tip with a physical description and location that a person had a gun was not

enough for reasonable suspicion without anything else to cause suspicion.

The Current Gun Control Debate Both those for and those against gun control effectively argue that any statistical

evidence is biased, uses flawed research, is used to prove a specific point, or some-

how is used to endorse a political point. The plethora of research provides ample

data to be interpreted as people wish, and even elected officials have vastly differ-

ent views of what the law is and should be. Data regarding most controversial

issues are to be carefully scrutinized, which is certainly the case with research asso-

ciated with firearms.

In Opposition to Gun Control

Various philosophies prevail in the gun control opposition camp. Some focus on the

issue of constitutionality and rigorously defend individuals’ rights to keep and bear

arms, whereas others reflect a more passive resignation, believing such legislation

is merely a paper tiger that offers no real bearing on any crime control efforts.

A common argument among gun control opponents is the claim that such

laws will only put guns where they do not belong—in criminals’ hands. The

NRA and other advocacy group have captured this philosophy about gun control

with phrases suggesting “If guns are outlawed, only outlaws will have guns”

and “Guns don’t kill people, people do.” They also note that violent crime has

been decreasing.

The founding fathers wrote the Second Amendment to protect citizens’ right to

defend themselves against oppression, whether at the hands of another individual

or those of tyrannical government. The right to keep and bear arms is a critically

important constitutionally protected right; therefore, any laws restricting the keep-

ing and bearing of arms in any way are clearly therefore unconstitutional.

In Support of Gun Control

Advocates of gun control often refer to the issue as “crime control”—not “gun con-

trol.” Historical analysis shows that the amendment was written to protect colonists

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190 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

from England’s King George III’s military forces and contains nothing that could be

construed today as prohibiting gun control.

Many advocates of gun control criticize the ability of some to circumvent the

law. The Brady Campaign to Prevent Handgun Violence points out that despite

legislation now banning the sale of assault weapons, thousands of these firearms

are presently privately owned and for sale at gun shows because of grandfather

clauses in the laws.

To counter the argument that violent crime has been decreasing in the country,

gun control advocates contend that the decrease may be attributable to many fac-

tors other than legislation, including an increased numbers of police in the com-

munity; implementation of new, more aggressive and more effective police tactics;

and the crackdown on illegal drug trafficking.

Gun Control as a Political Issue Thus far, the judiciary has left most gun control laws to the states to be determined

through the political process. Chief Charlie Deane of Prince William County,

Virginia, calls the gun issue the “third rail of policing.” If politicians touch it, they

don’t last long (Guns and Crime, 2010). This lack of involvement has concerned many leaders in law enforcement. The executive director of PERF, Wexler (2010,

p. iii), notes,

It seems that the United States has become anesthetized to gun violence. While

the 1999 Columbine school massacre in Colorado resulted in widespread

demands for action to prevent such tragedies from occurring, it seemed that

more recent incidents . . . no longer prompted many calls for reform, because

people no longer expect that any reforms will be made.

Even though violent crime in the United States has declined sharply since the

1990s, our nation still endures far higher homicide rates than do other countries—

for example, 46 killings per day in the United States compared with only 8 killings

per day in the entire European Union, which has a population 60 percent larger

than the United States.

Prospects for reform at the federal level have improved somewhat. In 2009,

Washington showed little or no appetite for taking on gun crime issues. Currently,

in the wake of the Newtown, Connecticut, school shooting, gun control has become

a more prominent topic among legislators and citizens alike. The struggle to find

common ground, however, remains a challenge.

Finding Common Ground— Is a Compromise Possible? Despite all the controversy over gun control, where the courts stand is without

question. Gun control by the states is not constitutionally prohibited, and under

most circumstances, legislation by the federal government is not prohibited.

The history of the courts suggests that they will defer to the discretion of the

states on almost all matters concerning gun control. Thus far, the only actions

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Chapter 6 The Second Amendment: The Gun Control Controversy 191

the courts may find constitutionally offensive are a complete nationwide ban on

firearms and acting on reports of gun possession without further evidence.

The controversy over the effectiveness of existing gun control legislation

and the need to add to that body of legal work has spread into many different

occupational venues, pulling in a variety of advocates and opponents from a

wide range of professions. The CDC now keeps statistics on gun-related injuries

and deaths. These statistics include types of weapons, ammunition used,

whether the weapon was stolen, information when youths are involved, and the

relationship between the first person to own the weapon and the victim or

assailant. Educators, physicians, the clergy, and community groups are con-

cerned as well.

The president of the Brady Campaign to Prevent Gun Violence, Helmke, sug-

gested that enforcing the laws on the books isn’t the answer. He advocates search-

ing for the middle ground: “The Supreme Court said that near-total gun bans like

DC’s were off the table, but it also said that ‘any gun, anywhere, anybody, any time’

is also off the table. Justice Scalia said that the right is not unlimited: You can have

restrictions on who buys guns, what kind of guns they are, where they take them,

how they’re sold, where they’re stored. That’s the middle ground we should be

looking at. This isn’t Second Amendment trench warfare anymore. It should be

about finding out what works” (Guns and Crime, 2010, p. 32). Helmke suggests that most can agree that illegal trafficking needs to stop and that we need to focus on

problem dealers, look at multiple sales, and strengthen the ATF and give it the

appropriate resources.

Boston Commissioner Edward Davis notes that the issue is not about taking

people’s guns. The issue is finding what’s reasonable: “I think it’s great that the

National Shooting Sports Foundation and the NRA are at the table here. We need

to continue the conversation with both of these organizations about what can work

and what is acceptable. There may have been some aggravation in this discussion

today simply because the law enforcement representatives are literally stepping

over the bodies in the street. But I think most law enforcement officials aren’t on one

side or the other of the gun debate. We’re looking for reasonability” (Guns and Crime, 2010, p. 33).

Wexler (p. 35) notes in the conclusion of the report that all sides agree on the

need for mandatory sentencing for those who make “straw purchases” of guns. A

straw purchase is when a buyer uses an intermediary (the “straw man”) to pur-

chase a firearm(s) from a licensed firearms dealer and then sell the weapon(s) to

individuals who cannot legally buy guns themselves, such as felons and the

severely mentally retarded. Wexler suggests that enacting mandatory minimums

would help break the impasse and get this issue off dead center: “A public debate

on such a proposal would bring the issue of violence back into the news. We need

to put an end to the apathy regarding the shootings and killings that happen every

day in major U.S. cities” (p. 35).

straw purchase an illegal transaction when a buyer uses

an intermediary (the “straw

man”) to purchase a firearm(s)

from a licensed firearms dealer

and then sells the weapon(s) to

individuals who cannot legally

buy guns themselves, such as

felons and the severely mentally

retarded

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192 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Discussion Questions

Summary

1. Should the government control the possession of guns or be able to restrict certain types of firearms? What about large capacity magazines?

2. Does the Brady Act serve a legitimate function?

3. Considering the history behind the drafting of the Second Amendment, can any original interpretations reasonably be used today? If so, how?

4. In Great Britain, police officers do not routinely carry firearms because, among other reasons, firearms are not considered the public threat they are elsewhere. Could this ever occur in the United States?

5. Would having severe penalties for gun violations help reduce gun violence? Should the law make the reward not worth the risk?

6. What makes more sense to you: restricting guns altogether or restricting who has access to guns? In other words, should legislation and enforcement efforts focus on the gun or on the individual?

7. Is a “cooling off” period for gun permits reasonable?

8. Does regulating handguns but not rifles and shotguns make sense?

9. Most “mass casualty” shootings are over quickly, even before police can arrive. In light of this reality, does it make sense to allow citizens to arm themselves?

10. Rewrite the Second Amendment as though you were asked to address contemporary concerns.

Historically, the militia was considered to be the

entire adult male populace of a state. They were not

simply allowed to keep arms but were at times

required to do so by law. A central controversy over the Second Amendment is whether people have a

right to bear arms as individuals rather than only as

part of a militia. The number of militia groups in the

United States increased dramatically from 2008

to 2009.

The two opposing interpretations of the Second

Amendment involve whether the amendment guar-

antees individuals’ rights to keep and bear arms or

whether it guarantees the states freedom from fed-

eral government infringement on this right. Judicial

decisions over time reveal changes in how the Court

has viewed Second Amendment guarantees. In

United States v. Miller (1939) the court recognized a state right rather than an individual right to bear

arms. In 1971 the courts ruled that there was no

express right of an individual to keep and bear arms

(Stevens v. United States). Both decisions have since been reversed.

In a landmark decision, the Supreme Court stated

in District of Columbia v. Heller (2008) that the Second Amendment protects an individual’s right to possess

a firearm unconnected with service in a militia. In

McDonald v. Chicago (2010) the Supreme Court, hold- ing that the right to keep and bear arms was among

those fundamental rights necessary to our system of

ordered liberty, ruled that the Second Amendment

does apply to the states and incorporated it under the Fourteenth Amendment.

The Brady Act, passed in 1993, contained the

interim provision of a mandatory five-day waiting

period on all handgun purchases. This provision was

phased out and was replaced in 1998 with the perma-

nent provision of an instant, computerized criminal

background check of all handgun purchasers. Some

states still impose a waiting period on firearms

purchases.

The Law Enforcement Officers Safety Act, allow-

ing “qualified” active and retired law enforcement

officers to carry concealed weapons anywhere in the

United States, has three goals: (1) to establish equal-

ity between local LEOs and their federal counter-

parts who already carry nationwide, (2) to create an

unpaid homeland security force to help protect the

nation, and (3) to allow qualified current and retired

LEOs the means to defend themselves and their

families against criminals.

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Chapter 6 The Second Amendment: The Gun Control Controversy 193

References “About Gun Violence.” Washington, DC: Brady

Campaign to Prevent Gun Violence, 2013. Retrieved May 21, 2013, from www .bradycampaign.org/?q=about-gun-violence.

Agresti, James D., and Smith, Reid K. “Gun Control Facts.” Just Facts, February 11, 2013. Retrieved May 21, 2013, from www.justfacts.com/ guncontrol.asp.

Basu, Kaustuv. “‘Stand Your Ground’ Law Put to Test.” Florida Today, August 1, 2010, p. A1.

Castellano, Anthony. “Virginia Tech Survivor Colin Goddard Fights Back Against Guns.” ABC News, December 20, 2012. Retrieved May 21, 2013, from http://abcnews.go.com/US/virginia-tech- survivor-colin-goddard-fights-back-guns/ story?id=18022765#.UZvgH_co5mM.

Crime in the United States 2011. Washington, DC: Federal Bureau of Investigation. Uniform Crime Reports, 2011. Retrieved May 21, 2013, from www .fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/ crime-in-the-u.s.-2011.

Donohue, John J., III. “The Final Bullet in the Body of the More Guns, Less Crime Hypothesis.” Criminology and Public Policy, July 2003, pp. 397–410.

Eldridge, Joanne. “The Castle Doctrine and Indiana’s Controversial New Law.” PoliceOne.com, July 20, 2012. Retrieved May 20, 2013, from www.policeone .com/legal/articles/5827610-The-Castle-Doctrine- and-Indiana-s-controversial-new-law/.

Grimm, Fred. “‘Stand Your Ground’ Works—For Criminals.” The Miami Herald, August 5, 2010. Retrieved May 21, 2013, from http:// criminallawbook.com/assets/stand-ground.pdf.

Guns and Crime: Breaking New Ground by Focusing on the Local Impact. Washington, DC: Police Executive Research Forum, May 2010.

Hann, R. A.; Bilukham, O. O.; Crosby, A.; et al. “First Reports Evaluating the Effectiveness of Strategies for Preventing Violence: Firearms Laws. Findings from the Task Force on Community Preventive Services.” Morbidity and Mortality Weekly Report, October 3, 2003, pp. 1–20.

Kovandzic, Tomislav V., and Marvell, Thomas B. “Right-to-Carry Concealed Handguns and Violent Crime: Crime Control through Gun Decontrol?” Criminology and Public Policy, July 2003, pp. 363–396.

Law Enforcement Officers Killed and Assaulted, 2011. Washington, DC: Federal Bureau of Investigation,

Uniform Crime Reports, 2011. Retrieved May 21, 2013, from www.fbi.gov/about-us/cjis/ucr/ leoka/2011/officers-feloniously-killed/officers- feloniously-killed.

Long, Colleen. “Gun Deaths Tried to Fray the Thin Blue Line in ‘09.” The Washington Post, December 12, 2009. Retrieved May 21, 2013, from http://seattletimes.com/html/ localnews/2010491180_ apuspolicegundeaths1stldwritethru.html.

Lott, John R., Jr. More Guns, Less Crime: Understanding Crime and Gun Control Laws. Chicago: University of Chicago Press, 1998.

Lott, John R., Jr. The Bias against Guns: Why Almost Everything You’ve Heard about Gun Control Is Wrong. Washington, DC: Regnery Publishing, Inc., 2003.

Nowicki, Ed. “Cluster Killings of Police Officers.” Law and Order, March 2010, p. 6.

Planty, Michael, and Truman, Jennifer L. Firearm Violence, 1993–2011. (NCJ 241730.) Washington, DC: Bureau of Justice Statistics, May 2013.

Potok, Mark. “The Year in Hate and Extremism.” Southern Poverty Law Center, Intelligence Report, Issue Number 149, Spring 2013 Retrieved July 7, 2013, from www.splcenter.org/ home/2013/spring/the-year-in-hate-and- extremism.

“Report: 10 States Sell Half of Imported Crime Guns.” PoliceOne.com News. September 27, 2010. Retrieved May 21, 2013, from www.policeone. com/federal-law-enforcement/articles/2719054- Report-10-states-sell-half-of-imported-crime- guns/.

“Statement of Paul Helmke on U.S. Supreme Court Ruling.” Brady Center website, June 29, 2010. Retrieved May 21, 2013, from www.prnewswire .com/news-releases/statement-of-brady-president- paul-helmke-on-second-amendment-ruling-by-us- supreme-court-97309384.html.

Ward, Meredith Mays. “IACP Supports Legislation to Curb Terrorist Access to Firearms.” The Police Chief, June 2010, p. 8.

Wethal, Tabatha. “The Confusion with Concealed Carry.” Law Enforcement Technology, June 2010, pp. 30–36.

Wexler, Chuck, “Introduction” (p. iii) and “Conclusion” (p. 35) in Guns and Crime: Breaking New Ground by Focusing on the Local Impact. Washington, DC: Police Executive Research Forum, May 2010.

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194 Section II The Guarantees of the Constitution: Civil Rights and Civil Liberties

Cases Cited Adams v. Williams, 407 U.S. 143 (1972) Barnes v. State, 946 N.E.2d 572 (2011) District of Columbia v. Heller, 544 U.S.___ (2008) Edwards v. City of Goldsboro, N.C., 178 F.3d 231

(4th Cir. 1999) Florida v. J.L., 529 U.S. 266 (2000) Gowder v. City of Chicago, District Court, N.D. Illinois,

June 19, 2012. McDonald v. Chicago, 561 U.S. ___ (2010) Pennsylvania v. D.M., 529 U.S. 1126 (2000) Presser v. Illinois, 116 U.S. 252 (1886)

Printz v. United States, 521 U.S. 898 (1997) Small v. United States, 544 U.S. 385 (2005) Stevens v. United States, 440 F.2d 144 (6th Cir. 1971) United States v. Cruikshank, 92 U.S. 542 (1875) United States v. Decastro, 682 F.3d 160 (2012) United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Texas,

1999) United States v. Lopez, 514 U.S. 549 (1995) United States v. Miller, 307 U.S. 174 (1939) United States v. Skoien, 587 F. 3d 803 (Court of Appeals,

7th Circuit, 2009)

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195

Facts will determine if a stop or a frisk has occurred, and the Fourth

Amendment will then determine what the police are permitted to do.

The right of the people to be sec ure in their persons, houses , papers, and eff ect s, against unreasonable searches and seizures , shall not be violated, and no Warrants shall iss ue, but upon probable cause, supp orted by Oath or affi rmation, and particularly des cribing the place to be searched, and the persons or things to be seized.

—Fourth Amendment to the U.S. Constitution

The Fourth Amendment An Overview of Constitutional Searches and Seizures

CHAPTER 7

B C

h ri

st o

p h

e r

/ A

la m

iStockphoto/Thinkstock

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196 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

articulable facts

attenuation doctrine

bright-line approach

case-by-case method

continuum of contacts

conventional Fourth

Amendment

approach

exclusionary rule

frisk

fruit of the poisonous

tree doctrine

furtive conduct

good faith

harmless error

inevitable discovery

doctrine

litigious

magistrate

nightcap(ped) warrant

no-knock warrant

probable cause

reasonable

reasonableness

Fourth Amendment

approach

reasonable suspicion

seizure

stop

Terry stop

totality of

circumstances

Can You Define?

Do You Know . . . ■ What the Fourth Amendment forbids and requires?

■ Who is governed by the Fourth Amendment?

■ What the Reasonableness Clause of the Fourth Amendment

establishes?

■ Whether individuals are constitutionally guaranteed absolute freedom

from government intrusion?

■ How probable cause relates to searches and arrests?

■ What is required for a search or arrest warrant?

■ What the knock-and-announce rule requires?

■ What a stop is? its purpose?

■ What a frisk is and when it is permitted?

■ What the law of stop and frisk deals with? the precedent case?

■ What the Terry decision established?

■ What two consequences police may face if they make an

unconstitutional search or seizure?

■ What the exclusionary rule is and the precedent case?

■ What primary purpose is served by the exclusionary rule?

■ What case made the exclusionary rule applicable at the state level?

■ What happens to evidence obtained in ways that “shock the

conscience”?

■ What exceptions to the exclusionary rule exist?

■ What other consequences may result from government agency

misconduct?

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 197

Introduction If the First Amendment is considered the cornerstone of U.S. freedom, then the

Fourth Amendment must be a building block with which freedom continues to

develop. The Fourth Amendment is unique because it speaks not only to that desire

but also to a need. A prominent theory of human behavior and motivation was set

forth by famed psychologist Abraham H. Maslow (1908–1970). In Maslow’s hierar-

chy of needs (Figure 7.1), the need for security comes right after the basic physical needs of food, clothing, and shelter (Maslow, 1954).

Although most of us take it for granted, one of the greatest advantages of living

in the United States is to be able to live unimpeded by government. A continuing

argument in this country, and one the First Amendment permits to be pursued, is

whether we, indeed, have “too much” government. More than 200 years after the

drafting of the Constitution, governmental controls remain important to Americans.

Governmental controls ensure that citizens can drive to and from their destina-

tions without the fear of being pulled over by an overly zealous police officer who

simply does not like the color of their car—or skin. It means that citizens can enjoy the

security of their homes without fearing an intrusion by the government seizing assets,

property, or records just because they are engaged in an unpopular line of work.

Of course, this security does not mean the government is barred from carrying out

its responsibility. Limited governmental power is necessary for the laws of the country

to be enforced and the government’s business to be carried out. However, a balance is

Physiological

Food, water, air, rest, sex, shelter (from cold, storm)

Safety and security

Protection from physical harm, freedom from fear or deprivation

Social

Friendship, affection, acceptance

Esteem

Self-respect, respect of others,

recognition, achievement

Self- actualization

Realization of individual potential,

creative talents, personal future fulfillment

Figure 7.1 Maslow’s Hierarchy of Needs

a d sw

o rt

h /C

e n g a g e L

e a rn

in g

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198 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

required for a democracy such as ours to exist—a balance between the government’s

powers and the people’s freedom; that balance is what the law of search and seizure

is all about. Because Americans take this freedom seriously, U.S. law has developed to

firmly regulate how and when government agents can impose on people.

At the core of restrictions on government infringing on citizens’ freedom is the

Fourth Amendment, which forbids unreasonable search and seizure. These two

key words—search and seizure—are fundamental to understanding the Fourth Amendment. A search is an examination of a person, place, or vehicle for contra-

band or evidence of a crime. A search, by its nature, is an intrusion into someone’s

search an examination of a person, place, or vehicle for

contraband or evidence of a crime

seizure a taking by law enforcement or other government

agent of contraband, evidence of

a crime, or even a person into

custody

Did the con- duct at issue constitute a search or a seizure for Fourth Amend- ment purposes?

Was the search or seizure con- ducted pursuant to a warrant?

Is there state action: Conduct by a govern- mental official or someone acting in concert with or at the direction of a state actor?

Does the person have standing to challenge the conduct (i.e., did the conduct at issue violate the challenger’s reasonable ex- pectation of privacy)?

The conduct cannot be challenged under the Fourth Amendment. Evidence is therefore admissible.

Did the search or seizure occur under any of the following recognized warrant exceptions? • Terry-type “stop-and-frisk” supported

by reasonable, articulable suspicion • Incident to and contemporaneous

with a lawful, custodial arrest • Voluntary consent • Plain view • A motor-vehicle search authorized under

the Carroll Doctrine • Open fields • Abandoned property • Special administrative or regulatory

searches (e.g., border searches, inventory searches)

• Some emergency situation/exigent circumstance (e.g., hot pursuit, evanescent/disappearing evidence, public safety)

YES YES YES

YES

NO NO NO NO

Figure 7.2 Overview of a Fourth Amendment Inquiry

permission. www.cengage.com/permissions.

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 199

privacy and, thus, is strictly regulated by the Fourth Amendment.

A seizure is a taking by law enforcement or other government

agent of contraband, evidence of a crime, or even a person into

custody. It too is regulated by the Fourth Amendment.

Figure 7.2 provides an overview of a Fourth Amendment

inquiry and the path to valid searches and seizures. This chapter

explains the “yes” responses in the top line of the figure. Chapter 8,

lawful seizures, and Chapter 9, lawful searches, explain the conse-

quences of the “no” responses.

YES

YESYES

Was the warrant EITHER: A. actually valid because it: 1. was supported by probable cause; 2. was stated with particularity, both: (a) the places and/or people to be searched; and (b) the items to be seized; and 3. was issued by a neutral, detached judicial officer?

B. facially valid such that law enforcement officers acted reasonably in good faith reliance on what appeared to be a valid warrant?

Derivative evidence/ “fruit” may be admissible in spite of initial Fourth Amendment violation.

The search or seizure is invalid under the Fourth Amendment.

Evidence is inadmissible.

Was the behavior of law enforcement during the search and seizure reasonable (e.g., free from excessive force)?

The search or seizure is valid under the Fourth Amendment and the evidence is admissible.

If the constitutional violation led police to the discovery of secondary/derivative evidence, the “fruit of the poisonous tree” doctrine must be applied to determine the admissibility of evidence that is “tainted fruit.”

Was the warrant executed: A. in a timely manner (i.e., without unnecessary delay); B. after being announced (if required); and C. within the authorized scope?

Can either the independent source, inevitable discovery, or attenuation doc- trines (which applies to “knock-and- announce” viola- tions) be applied to the fruit/derivative evidence?

Derivative evidence/ “fruit” is also inadmissible.

NO NOYES

The Fourth Amendment forbids unreasonable searches and seizures and requires that any search or arres t warrant be based on probable cause.

Figure 7.2 (Continued)

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200 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

This chapter begins with a discussion of the importance of the Fourth Amend-

ment to law enforcement and who is regulated by the Fourth Amendment. Then, it

examines the two main clauses of the amendment, the Reasonableness Clause and

the Warrant Clause. This discussion is followed by an explanation of search and

arrest warrants and a look at the continuum of contacts from a simple encounter to

an arrest. This explanation leads to a discussion of the first Fourth Amendment

encounter on the continuum, the law of stop and frisk. Next is a discussion of two

important results of Fourth Amendment violations by the government: (1) evidence

being excluded from court through the exclusionary rule and (2) the officer, the

government agent, and perhaps the entire department or agency facing civil

liability. The chapter concludes by considering what happens when state law

conflicts with constitutional law.

The Importance of the Fourth Amendment to Law Enforcement The Fourth Amendment governs much of what police officers are legally allowed

to do as they “serve and protect” and is so important that three chapters in this text

are devoted to it. In addition to its importance to the U.S. scheme of government,

the Fourth Amendment provides students of the Constitution with ample opportu-

nity to develop a working understanding of the country’s legal system.

The Fourth Amendment has continued to evolve constitutionally, substantively,

and procedurally through common and statutory law. It remains the pivotal area of

debate in the field for law enforcement and in the courtroom for the prosecution

and the defense, as well as in the classroom for students and legal scholars. Each

word and phrase within this amendment continues to be reexamined and redefined

in the true spirit of the Constitution because constantly changing human interaction

and behavior spawns ever unique circumstances that result in government’s intru-

sion into people’s lives.

The idea that citizens can enjoy privacy and freedom from government intru-

sion with regard to themselves, their possessions, their homes, and their busi-

nesses is what citizens have come to expect, rather than what we consciously desire, as was the case more than 200 years ago. The U.S. Constitution has taken the U.S. legal system, its government, and those enjoying the freedom a long

way in a comparatively short time. This chapter examines the Fourth Amend-

ment in its entirety and how it affects our lives, considering the rights ensured

by the Fourth Amendment and the consequences of government’s violations of

this law.

Before embarking on the substance of the Fourth Amendment, recall the

explanation of procedural law. This chapter begins to examine those constitu- tional amendments that make up the body of procedural law, an entire body of

law unto itself. This is the law used to enforce other laws and is known as crimi- nal procedure.

In a constitutional democracy, crime control considers both ends and means.

The “ends” consists of finding the truth to obtain justice, that is, convicting the

guilty and exonerating the innocent. The law of criminal procedure seeks this bal- ance. “Criminal law’s ultimate ends are dual and conflicting. It must be designed

from inception to end, to acquit the innocent as readily, at least, as to convict the

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 201

guilty. This presents the inescapable dilemma of criminal procedure . . . that the

easier it is made to prove guilt, the more difficult it becomes to establish innocence”

(Hall, 1942, p. 725).

The Fourth Amendment’s prohibition against unreasonable searches and sei-

zures by the police is perhaps the most vital component of criminal procedure

because of ample opportunities the U.S. Supreme Court has had to set forth when

any government agent may and may not act, as well as when they have an expecta-

tion, or duty, to do so.

Who Is Regulated by the Fourth Amendment? As the U.S. Constitution was originally drafted, the Fourth Amendment itself

applied to only federal government, but now it is equally applied to state govern-

ment by the Fourteenth Amendment, as established in Wolf v. Colorado (1949). Therefore, any government agent (whether federal, state, county, or municipal) is

regulated by the Fourth Amendment.

When most people consider search-and-seizure law, they think of its impact on

such agencies as the FBI or local police. Again, any employee of the government at

any jurisdictional level is influenced by the constitutional restric-

tions. This regulation includes all governmental agencies, includ-

ing but not limited to the Secret Service, the Internal Revenue

Service, and the Food and Drug Administration. The Fourth

Amendment also regulates state agencies, such as state revenue

agencies, county sheriffs and local police, public schools and col-

leges, and other regulatory bodies as well as local, county, and

municipal bodies of government.

Private individuals or agencies are not regulated by the Fourth Amendment.

When a rebellious teenager angrily informs his parents that they cannot come into

his room without a warrant, he has made an inaccurate statement. Private security

guards, such as store detectives, are similarly not controlled by the Fourth Amend-

ment. Why? They are not government agents, and the Constitution was established

to limit the power of government and its agents. Among cases involving the issue

of searches conducted by private individuals are the following:

■ United States v. Parker (1994) held that United Parcel Service employees could open, without warrants, packages and inspect their contents whenever a cus-

tomer insured a package for more than $1,000. ■ United States v. Cleaveland (1994) held permissible a warrantless search by a

private electric company employee acting on a tip that a customer was bypass-

ing the electric meter. ■ United States v. Ross (1982) held that an airline employee who inspected the

defendant’s luggage according to FAA regulations was acting in a governmen-

tal capacity and, thus, was governed by the Fourth Amendment.

Can a private party ever be considered a government agent? Sometimes, yes.

Two factors that are considered when determining whether someone is working

as an agent of the government are: (1) whether the government (e.g., a law

enforcement officer) knows of the search or acquiesces in it; and (2) what the intent

If a person is an employee of any governmental agency or is an agent of the government in any capacity, that person is bound by the Fourth Amendment.

MYTH The Fourth Amendment restricts

the actions of U.S. citizen.

REALITY No. Only the government and its

agents are subject to the require-

ments of the Fourth Amendment.

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202 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

of the person performing the search is (see United States v. Walther, 1981). A certain amount of government knowledge and participation are required when assessing

the totality of the circumstances.

An example for discussion would involve individuals who seize evidence of a

crime from the home of another—maybe because they were invited into the home,

or maybe because they actually broke into the residence. Could that evidence be

used in court against the homeowner, although the person who actually seized it

did so without a warrant and without permission of the homeowner?

The answer is yes, if the person was not acting as any sort of government agent.

This does not, however, make the individual immune from liability for committing

an unlawful act while obtaining the information.

Similarly, a private store detective could search someone without a warrant or

without the other constitutional requirements the police need to comply with

because the Constitution does not regulate private police.

In United States v. Jacobsen (1984), the Court held that even when a private per- son had opened a package and then resealed it, the government agent could expose

to view that which had previously been observed by the private person without the

exposure constituting an illegal search. In this case, a Federal Express worker came

across a package that had been accidentally torn open by a forklift. As per company

policy, the worker examined the contents of the damaged package for insurance

claims purposes and discovered a white powdery substance. Suspecting it was

illegal drugs, the worker summoned management, who contacted the Drug

Enforcement Administration (DEA). The responding DEA agents removed a trace

of the powder, subjected it to a chemical test and determined that it was cocaine.

Sergeant White is investigating a forgery ring. This

ring uses stolen checks to purchase items at one

store in a chain and then returns them for cash at a

different store of the same chain. During surveil-

lance, Sergeant White watches as a member of this

ring, Joe Smith, enters a high-end electronics

retailer. Believing that Smith is about to commit

another forgery, White follows him.

Smith selects two flat-screen televisions and pays

for them with a check. He begins to push the televi-

sions out to his car. With nothing else to go on other

than the fact that Smith wrote a check to purchase

the televisions, Sergeant White tells a store security

guard to go outside and search Smith for more

checks while White watches from inside the store.

The security guard does so and finds several

personal checks in Smith’s possession. All of the

checks have different names on them. Sergeant

White then goes outside and arrests Smith for pos-

sessing the stolen checks.

■ In general, would the Constitution regulate the conduct of the security guard?

■ Did Sergeant White participate to the degree that this scenario would fall under the Fourth Amendment?

■ If the security guard had acted on his own, know- ing only that Sergeant White identified Smith as being involved in a forgery ring, would the guard’s actions fall under the Fourth Amendment?

Constitutional Law in ACTION

The Fourth Amendment does not app ly to private parties .

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g a

g e

L e

a rn

in g

2 0

1 5

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 203

Subsequently, a warrant was obtained to search the place to which the package was

addressed, the warrant was executed and respondents were arrested.

After the respondents were indicted for possessing an illegal substance with

intent to distribute, their motion to suppress the evidence on the ground that the war-

rant was the product of an illegal search and seizure was denied, and they were tried

and convicted. The court of appeals reversed, holding that the validity of the warrant

depended on the validity of the warrantless test of the white powder, that the testing

constituted a significant expansion of the previous private search and that a warrant

was required. The Supreme Court, however, granted certiorari and held that the fed-

eral agents did not infringe any constitutionally protected privacy interest that had

not already been frustrated as the result of private conduct. To the extent that a pro-

tected possessory interest was infringed, the infringement was de minimis and consti- tutionally reasonable, thereby reversing the judgment of the appellate court.

What if the private party had agreed to go in and get the item from the house,

or the private security guard had agreed to search the person for the police? Then,

arguably, this private person, although not employed by the government, has

become an agent of the government, and the Fourth Amendment would then apply.

Having looked at who is regulated by the Fourth Amendment, consider now the

important clauses of this amendment.

The Clauses of the Fourth Amendment The Fourth Amendment contains two clauses of importance to search-and-seizure

issues:

■ The Reasonableness Clause: “The right of the people to be secure in their per-

sons, houses, papers and effects, against unreasonable searches and seizures shall not be violated.”

■ The Warrant Clause: “[A]nd 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.”

Two Interpretations

These two clauses have been viewed differently by the Supreme Court. Until the

1960s, the Court used the conventional Fourth Amendment approach, viewing

the two clauses as intertwined and firmly connected. This interpretation holds that

all searches not conducted with both a warrant and probable cause are unreason-

able and, therefore, unlawful.

Since the 1960s, however, the Court has broadened government’s power by

adopting what has been called the reasonableness Fourth Amendment approach.

This interpretation sees the two clauses as separate, distinct, and addressing two

separate situations. In some instances, searches can be reasonable without either

warrants or probable cause.

When a valid warrant has been issued and, thus, probable cause has been judi-

cially determined, the Supreme Court has continued to find the requirements of the

Fourth Amendment satisfied. A great number of cases have developed as the Court

has sought to determine under what circumstances searches and seizures are valid

without warrants or probable cause.

conventional Fourth Amendment approach viewing the Reasonableness Clause and the

Warrant Clause as intertwined

and firmly connected

reasonableness Fourth Amendment approach the Reasonableness Clause and the

Warrant Clause are interpreted

as separate issues

CASE IN BRIEF

United States v. Jacobsen (1984)

ISSUE Is it a violation of the Fourth Amendment for an

employee of a private company to

open and inspect the contents of

a package?

RULING No. The actions were of a private person, not acting at

the direction or with the knowl-

edge of a government official.

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204 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Critical concepts to understanding the Fourth Amendment are

reasonableness, reasonable expectation of privacy, and probable cause. These terms are considered when deciding what the government,

including the police, is permitted to do and when. The terms have

also been the basis for many court decisions and remain a viable

point of argument in criminal cases.

The Constitution was written in general terms to permit the

societies it would continue serving to determine what they con-

sider reasonable, rather than creating a cast-in-stone definition. Such foresight

enables this body of law to change along with those it serves. Even the courts

have struggled with definitions. They, too, desire to keep the door open for case-

by-case interpretation. The guidelines provided through court opinions do not

provide any more precise definitions of these terms. Nonetheless, an understand-

ing of key terms such as probable cause and reasonable are often at the heart of the interpretation.

Reasonableness

“The touchstone of the Fourth Amendment is reasonableness, and the reasonable-

ness of a search is determined ‘by assessing, on the one hand, the degree to which

it intrudes upon an individual’s privacy and, on the other, the degree to which it is

needed for the promotion of legitimate governmental interests’” (United States v. Knights, 2001). In other words, the Fourth Amendment prohibits “unreasonable” searches and seizure.

How would you define reasonable? It is a challenge, but the cases that have sought to do so have come up with the same descriptors most of us would:

Reasonable means sensible, rational, and justifiable. It is one of those terms the

framers of the Constitution used to require interpretation and application of a law

intended to meet the needs of the people, rather than providing such rigidity that a

commonsense application could not be made. Much debate, and much law, has

occurred as a result of defining what is reasonable for the government to do. Case

definitions for reasonable include:

■ “What is reasonable depends upon a variety of considerations and circum-

stances. It is an elastic term which is of uncertain value in a definition” (Sussex Land & Live Stock Co. v. Midwest Refining Co., 1923).

■ “Not extreme. Not arbitrary, capricious or confiscatory” (Public Service Comm’n v. Havemeyer, 1936).

■ “That which is fair, proper, just, moderate, suitable under the circumstances,

fit and appropriate to the end in view, having the faculty of reason, rational,

governed by reason not immoderate or excessive, honest, equitable, tolerable”

(Cass v. State, 1933).

Two approaches have been used to determine reasonableness:

■ Bright-line approach—Reasonableness is determined by a specific rule

applying to all cases. ■ Case-by-case method—Reasonableness is determined by considering the

totality of circumstances in each individual case. This method is most com-

monly used in U.S. courts.

reasonable sensible, rational, and justifiable

bright-line approach determining the reasonableness of an action

according to a specific rule that

applies to all cases

case-by-case method determining the reasonableness of an action by

considering the totality of

circumstances in each case

The Reasonableness Clause of the Fourth Amendment makes warrantless searches and seizures valid and constitutional wh en they are sensible.

MYTH A police officer will always need a

warrant to conduct a search.

REALITY The Constitution has been

interpreted to allow for war-

rantless searches under a few,

well-delineated exceptions.

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 205

A key consideration in determining whether a search or sei-

zure is reasonable is the balance between individual rights and the

needs of society, as stressed previously. Another consideration is

whether a person’s reasonable expectation of privacy has been

violated by the government.

The essence of the Constitution is to prevent government from

being unnecessarily involved in our lives. Along with a right to be

secure from other unreasonable government intrusion is a right to privacy, but this

debate has not found answers as readily as have those areas police more often find

themselves involved with.

Although search-and-seizure law deals with people and their places and things,

cases that address a right to privacy deal with people’s even more personal relation-

ships, including choices pertaining to sexual relationships, birth control, abortion,

and sexual preference. Even such personal matters, if determined to be illegal,

would involve government.

Constitutional analysis and debate regarding the right to privacy has been emo-

tional because of the intimate matters it addresses and because it is not specifically

mentioned in the Constitution, but considered, at least by some, to be an implied

right. How far government can and should intrude on such personal matters is the

focus of this debate. Constitutional law involving the reasonable expectation of

privacy is discussed in greater detail in Chapter 9.

In addition to the term reasonable, another key term in the Fourth Amendment is probable cause.

Probable Cause

Probable cause (to arrest) exists when the facts and circumstances within the

officers’ knowledge and of which they had reasonable trustworthy information

are sufficient in themselves to warrant a man of reasonable caution in the belief

that an offense has been or is being committed. (Brinegar v. United States, 1949)

In Brinegar, the Court referenced Chief Justice John Marshall’s observation in Locke v. United States (1813) that probable cause “means less than evidence which would justify condemnation or conviction,” then added, “[s]ince, Marshall’s time, at any

rate, it has come to mean more than bare suspicion.”

Smith v. United States (1949) defined probable cause as “The sum total of layers of information and the synthesis of what the police have heard, what they know and

what they observe as trained officers. We [the Court] weigh not individual layers

but the laminated total.” This “laminated total,” more often referred to as the

totality of circumstances, is the principle on which a number of legal assessments

are made, including probable cause. Totality of circumstances is not a mathematical

formula for achieving a certain number of factors; rather, it is looking at what does

exist to assess whether the sum total would lead a reasonable person to believe what

the officers concluded. The more factors present, generally the more likely a finding

of probable cause will be upheld. However, probable cause may also be developed

with fewer factors but factors that are strong. In factor assessment, quality and

quantity are both important, but if one is lacking, the other can compensate.

Probable cause is evaluated from an objective viewpoint and is extremely fact-

dependent, as well as being contextual. The same facts in one situation may not

probable cause exists when facts and circumstances

are sufficient in themselves to

warrant a person of reasonable

caution to believe that an offense

has been or is being committed;

stronger than reasonable

suspicion but less than the

quantum of evidence required for

conviction

totality of circumstances the principle on which a number of legal

assessments are made; is not a

mathematical formula for

achieving a certain number of

factors but rather a sum total of

layers of information and the

synthesis of what the police have

heard, what they know, and what

they observe as trained officers,

including probable cause, used to

assess whether the sum total

would lead a reasonable person

to believe what the officers

concluded

The Constitution does not provide an absolute right to be fr ee fr om government intrusion, only unreasonable interference.

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206 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

provide probable cause in a different situation. The Court has described probable

cause as being a “fluid concept—turning on the assessment of probabilities in

particular factual contexts—not readily, or even usefully, reduced to a neat set of

legal rules” (Illinois v. Gates, 1983). Probable cause is stronger than reasonable sus- picion and is a concept crucial to understanding when police may or may not act

in the course and scope of their duties. It can legally justify searches and arrests

with or, in some cases, without warrants and requires the determining question of,

“Would a reasonable person believe that a crime was committed and that the indi-

vidual committed the offense, or that the contraband or evidence is where it is

believed to be?”

The terms reasonable person and believe are challenging to pre- cisely define, especially when time is of the essence to an officer in

the field. Probable cause exists when a reasonable person, in the

same or similar situation, would believe that a crime probably has

been committed and that the person committing the crime or evi-

dence of it will be found in a particular location.

Probable cause must be established before a lawful search or arrest can be made. Note that the terms used here are arrest and search, not stop and frisk. Facts and evidence obtained after a search or arrest cannot be used to establish probable cause. They can be

used, however, to strengthen the case if probable cause was estab-

lished before the arrest, making the arrest legal. If probable cause

is not present, police cannot act; if they do, consequences will

ensue. Without probable cause, seized evidence may be inadmis-

sible in court, arrests determined illegal, and officers and others

held liable for such illegality, as discussed later in the chapter.

Probable cause and its establishment are key elements in motions

to suppress in both warrant and warrantless situations.

Sources of Probable Cause

The two basic source categories of probable cause are observational and

informational.

Observational Probable Cause Observational probable cause is derived from

a government agent’s personal experiences—what officers perceive through their

own senses of sight, hearing, smell, touch, and taste. Officers’ experience, training,

and expertise may lend additional credibility in justifying probable cause because

such things sharpen one’s situational awareness and enhance the senses, thereby

enabling officers to assess things an ordinary person might be unable to. Glennon

(2008) describes this ability as intuition or a sixth sense. Officers often refer to it as

a “gut feeling.” Social scientists refer to it as “cognitive dissonance.”

The physical actions of an individual may draw the attention of police and lead

to probable cause. It is not relevant that the behaviors might have innocent explanations (i.e., the conduct is not criminal). Observing furtive conduct, that is,

questionable, suspicious, or secretive behavior, will understandably raise an offi-

cer’s suspicion, and although a person’s level of nervousness may not be enough

by itself, it can play a part in the totality of the circumstances (United States v. McCarty, 1988; United States v. Ingrao, 1990).

furtive conduct questionable, suspicious, or secretive behavior

Probable cause det ermines wh en offi cers may exec ute lawful searches and arres ts with or, in some cases , without a warrant. Probable cause to search means offi cers reasonably believe that evidence, contraband, or ot her items sought are wh ere police believe thes e items to be. Probable cause to arres t means offi cers reasonably believe that a crime has been committ ed by the person they seek to arres t.

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 207

Physical evidence may establish probable cause. In State v. Heald (1973), the court ruled that evidence at a burglary scene, including a distinctive tire tread left

in the snow, provided sufficient probable cause to arrest when the police approached

the suspect vehicle and the driver drove away.

Admissions made to a police officer, verbally or through actions, may provide

sufficient observational probable cause or lead to a finding of probable cause under

the totality of the circumstances analysis. In Rawlings v. Kentucky (1980), a suspect admitted that the contents of her purse (drugs) belonged to her, and the court

found this admission to be sufficient probable cause for the police to arrest her.

False or implausible answers may also contribute to probable cause, such as

occurred in United States v. Anderson (1987), when officers stopped a car on a road known to be used by people transporting drugs and found a large amount of cash

wrapped in small bundles, secured with rubber bands. The suspects said they had

just won the money in Atlantic City, but the officers did not believe the answers fit

their questions.

Presence at a crime scene or in a high crime area may also contribute to probable

cause, although usually is not sufficient alone. Additional factors that may need to

be considered include the specificity of the suspect’s or vehicle’s description; the

size of the area in which the offender might be found, which relates to the length of

time that has passed since the crime occurred; and the number of other people or

vehicles in the area at the time. However, if the suspect is present at a recent crime,

that presence may be sufficient, as was the case in State v. Mimmovich (1971), in which officers found the suspects of a burglary in suspiciously close proximity to

the burglarized dwelling immediately after it occurred. If suspects were crawling

out a window during a suspected burglary, that action could be sufficient.

Association with other known criminals is another factor that may contribute to

the finding of probable cause. In United States v. Di Re (1948), the Court said that “one who accompanies a criminal to a crime rendezvous cannot be assumed to be

a bystander,” and that one’s presence with others engaged in criminal activity can

contribute to a finding of probable cause. However, the fact that someone has been

involved in past criminal activity (Beck v. Ohio, 1964) or fails to protest his or her arrest is insufficient in itself to infer probable cause to support an arrest.

Informational Probable Cause Often, officers do not personally witness

criminal activity and, consequently, must rely on information provided by others.

In fact, seldom do the police actually see the crimes being committed. Usually, other

sources help establish informational probable cause and include official sources

such as roll call, dispatch, police bulletins, and wanted notices or unofficial sources

such as witnesses, victims, and informants. A series of Supreme Court decisions set

forth the legal requirements for establishing probable cause when working with

informants.

In Draper v. United States (1959), a narcotics officer received information from a reliable informant that heroin was being transported on a train by a person the

informant described in great detail, including what he would be wearing, even the

fact he “walked real fast.” The officers set up surveillance and arrested a man

matching the description. Heroin and a syringe were found in a search incident to

the arrest. The Supreme Court at that time held that information from a reliable

informant, corroborated by the police, upheld a determination of probable cause.

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208 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

A more stringent set of requirements for using informants in establishing prob-

able cause was later set forth in Aguilar v. Texas (1964), when the court devised a two-pronged test. The first prong tested the informant’s credibility. Is the person

reliable? Is the informant’s identity known? Is the informant a law-abiding citizen

or a criminal? The second prong tested the informant’s basis of knowledge and

reliability of the information provided. Is the information accurate? Did the infor-

mant personally witness the information given? If not, did the information come

from another source? Is the information still believable? What is this informant’s

track record?

In Spinelli v. United States (1969), the Court held that the “totality of the circum- stances” was to be used and, in this case, held that the FBI’s affidavit for a warrant

was insufficient to establish probable cause because not enough information was

available to adequately assess the informant’s reliability, and not enough other sup-

portive information was available to assess the existence of probable cause. Return-

ing to the words of the Brinegar opinion, for probable cause to exist, more than bare suspicion is necessary; a belief must also exist.

This two-pronged approach was abandoned in 1983 in Illinois v. Gates, which refined the definition of what constitutes probable cause and the totality of the

circumstances to be considered. In this case, a tip from an anonymous informant led

to police obtaining and executing a search warrant for drugs in the defendant’s

home. Justice William Rehnquist held that because “the most basic function of any

government is to provide for the security of the individual and of his property,” the

spirit of the law was better served by determination of the existence of probable

cause by consideration of the totality of the circumstances in deciding whether a

“reasonable and prudent person” would believe that, in this case, contraband was

located in a particular location, thus, indicating criminal activity. Justice Rehnquist

noted that “probable cause is a fluid concept—turning on the assessment of prob-

abilities in a particular factual context—not readily, or even usefully reduced to a

neat set of legal rules.” This totality of circumstances test made establishment of

probable cause by use of informants easier for police.

In United States v. Sokolow (1989), the Court justified a warrantless investigative stop as reasonable under the Fourth Amendment because, given the totality of the

circumstances present, sufficient reasonable suspicion existed. Although Sokolow dealt with another issue, that of “drug courier profiles,” this case demonstrates that

the totality of circumstances will be relied on in determining the constitutional jus-

tification for intrusion by the police.

The preceding cases help explain the common law development of probable

cause and show that the more factual information an officer can articulate, the

greater the likelihood the existence of probable cause will be upheld in court. In

addition, probable cause is the key determination of whether a judge will grant

officers a warrant to search or arrest.

Search and Arrest Warrants Government agents who have probable cause to believe evidence of a crime is

located at a specific place or that an individual is involved in a crime must go before

a neutral and detached magistrate (judge) and swear under oath who or what they

are looking for and where they think it can be found.

magistrate a judge

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 209

In determining whether probable cause for the warrant exists, the reviewing

judge must consider the totality of the circumstances. In other words, all the factors

submitted are viewed as a whole in considering whether a reasonable person

would believe what the officers claim. The warrant must include the reasons for

requesting it, the names of the officers who applied for it, names of others who have

information to contribute, what or who specifically is being sought, and the signa-

ture of the judge issuing it.

As any law enforcement officer will attest, obtaining a warrant is not just a mat-

ter of “walking up and getting one.” Rather, the officer has the responsibility to

provide sufficient data to the judge that the facts provide the necessary probable

cause. Because the judge determines whether probable cause exists, the officer must

argue the probable cause aspect of the case early on. Not every judge will sign a

warrant. The officer may be directed to come back with additional information or

be told that a warrant will not be issued on the facts presented.

The fact that an independent judge determines the existence of probable cause removes this discretionary decision from the officer involved with the case. Court

rulings have delineated this independence as one requirement for judges issuing

warrants: “An issuing magistrate must meet two tests. He must be neutral and

detached, and he must be capable of determining whether probable cause exists for

the requested arrest or search” (Shadwick v. City of Tampa, 1972). A valid warrant shifts the granting of suppression of evidence to the defendant and provides a

shield against officer liability.

With pagers, fax machines, cell phones, and Internet networks, coordination

among police, prosecutors, and judges makes obtaining warrants easier than in the

past. Many jurisdictions authorize “telephonic warrants,” which occur when a

judge grants the warrant over the phone.

Knock-and-Announce Rule

Officers can break a door or window or break a car window to make an arrest or to

execute a search warrant if necessary, but the general rule is that law enforcement

officers must first knock and announce their authority and purpose before breaking

into a dwelling. This requirement is referred to as the knock-and-announce rule, the intent of which is to prevent the dwelling’s occupants from responding with force

because they do not know who the intruders are.

The knock-and-announce rule protects citizens’ rights, and it

can enhance officer safety in executing a warrant. For example, a

plainclothes police sergeant executing a search warrant was killed

by a suspect who claimed to have fired on someone breaking into

his house. Although the police asserted they identified themselves

as police, the prosecution was unable to prove beyond a reason-

able doubt that the resident was not acting in self-defense.

In Miller v. United States (1958) the Court held, “The require- ment of prior notice of authority and purpose before forcing entry

into a home is deeply rooted in our heritage, and should not be

given grudging application. . . . Every householder, the good and the bad, the guilty

and the innocent, is entitled to the protection designed to secure the common inter-

est against unlawful invasion of the home.” Because the officers did not give notice

All warrants are to be based on probable cause.

When exec uting a search or arres t warrant, the common law rule is that for an entry into a home to be constitutional, police must fi rst knock and identify themselves and their purpose—the knock- and-announce rule.

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210 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

before breaking into Miller’s home, the subsequent arrest was unlawful and the

evidence seized should have been suppressed.

A similar finding occurred in Wilson v. Arkansas (1995), when the Court stated, “Given the long-standing common-law endorsement of the practice of announce-

ment, we have little doubt that the framers of the Fourth Amendment thought that

the method of an officer’s entry into a dwelling was among the factors to be con-

sidered in assessing the reasonableness of a search or seizure.” Although the Court

stated that whether “knock and announce” had occurred would be part of deter-

mining the reasonableness of a search, “the Fourth Amendment’s flexible require-

ments of reasonableness should not be read to mandate a rigid rule of announcement

that ignores countervailing law enforcement interests.”

The question of how long officers must wait after knocking and announcing

themselves before forcibly entering has been before the courts. In United States v. Banks (2003), the Court determined that a 15-to-20-second wait after knocking and announcing before a forcible entry was sufficient to satisfy the Fourth Amendment.

In this case, officers armed with a search warrant arrived at suspected drug dealer

Lashawn Banks’s apartment and followed standard procedure, knocked loudly on

the front door, and stated, “Police search warrant.” After waiting 15 to 20 seconds

without hearing anything from inside the apartment, police forcibly entered with a

battering ram.

Banks, who was just finishing a shower at the time, heard neither the knocks nor

the announcement and was standing naked in the hallway outside of his bathroom

when police entered his apartment. He was quickly forced to the floor by officers

and handcuffed. Police began questioning him and provided underwear for Banks

to wear during questioning. After a thorough search of the apartment, police

uncovered a significant amount of crack cocaine as well as a firearm.

At the criminal trial, the defense filed a motion to suppress statements made by

Banks during questioning on the grounds that the officers failed to wait a reason-

able period of time before forcefully entering his residence when executing the

search warrant. When the District Court denied this motion, Banks pled guilty, but

eventually tried to retract his guilty plea on the advice of a new attorney, who

argued that the search was unconstitutional because officers did not wait long

enough before breaking down the door and had no evidence that waiting longer

would have had negative consequences. A Ninth Circuit Court of Appeals agreed,

ruling the search unconstitutional and suppressing the evidence found during it.

The Supreme Court granted certiorari and unanimously reversed the Ninth

Circuit Court’s decision. Justice David Souter delivered the Court’s opinion: “The

officers’ 15- to 20-second wait before forcible entry satisfied the Fourth Amend-

ment. . . . After 15 to 20 seconds without a response, officers could fairly have sus-

pected that Banks would flush away the cocaine if they remained reticent. . . . This

Court’s emphasis on totality analysis leads it to reject the government’s position

that the need to damage property should not be part of the analysis of whether the

entry itself was unreasonable.” The Court stated that reasonableness must be

viewed under the totality of the circumstances, noting that an important fact was

not the time that it would have taken Banks to open the door but, rather, the time

it would take to destroy the evidence.

An audio or video recording of knock-notice announcements would provide

evidence of compliance with the knock notice as well as the exact amount of time

CASE IN BRIEF

United States v. Banks (2003)

ISSUE After knocking and announcing a search warrant, is

15 to 20 seconds a reasonable

amount of time to wait before

forcing entry?

RULING Yes. When looking at the totality of the circumstances

and the particular exigency facing

the officers, waiting 15 to 20

seconds was enough time.

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 211

that elapsed before the forced entry. Some departments have opted to make this

practice a matter of formal policy-directed procedure.

Special Conditions

In certain instances, exigent circumstances may justify an entry by police without

first announcing their presences, including when victims or hostages may be inside,

when a crime is actually in progress, when evidence or contraband may be

destroyed, or when making the officers’ presence known would place them in dan-

ger. In such instances officers may ask for special conditions to be attached to a

warrant, such as making an unannounced entrance or carrying out a search at night.

If officers want to make an unannounced entrance because they fear evidence

might be destroyed or officer safety requires it, they can request a no-knock

warrant. However, not all states give judges and magistrates authority to issue no-

knock warrants. The search warrants for drug busts using bulldozers to crash

through the walls of suspected crack houses would have such a provision. Having

obtained a pre-authorized no-knock provision, officers may, at the time the warrant

is executed, use independent judgment and forego the knock-and-announce

requirement, based on facts that exist at the time the warrant is executed, when

such facts demonstrate that there is “. . . reasonable suspicion that knocking and

announcing their presence, under the particular circumstances, would be danger-

ous or futile, or that it would inhibit the effective investigation of the crime by, for

example, allowing the destruction of evidence” (Richards v. Wisconsin, 1997). In other cases, the illicit activity occurs primarily at night—illegal gambling, for

example. In such cases, the officers can ask the judge to include a provision that

allows them to execute the warrant at night—a nightcap(ped) warrant. All that

the officer needs to show is a reasonable suspicion that, to preserve evidence or

protect officers, a nighttime search is necessary, a similar standard of proof to the

no-knock entry request.

Executing the Warrant

Once signed by a judge, the warrant becomes an order for the police to carry out

the search or arrest. Unless special conditions have been included in the warrant,

government agents must carry out the warrant during daylight hours and must

also identify themselves as officers and state their purpose. The officers may use

reasonable force to execute the warrant if they are denied entrance or if no one is

home. In Michigan v. Summers (1981), the Court ruled that it is constitutional to detain the occupants of a premises during the execution of a search warrant while

a proper search is being conducted. Police officers also may refuse to allow people

to enter their residence while the police obtain a search warrant. In Illinois v. McArthur (2001), the Court held that although preventing a suspect from entering his or her own home constituted a seizure of that person, if the warrant was being

obtained as rapidly as possible, such police action was reasonable. The Court

explained that exigent circumstances existed and the seizure of the suspect was

brief and as unintrusive as possible.

Having discussed how the Fourth Amendment ensures individual freedom by

restricting government’s power to intrude, consider next when the government is

permitted to search and seize and the broad range of contacts that exist.

no-knock warrant issued when officers want to make an

unannounced entrance because

they are afraid evidence might be

destroyed or officer safety

requires it

nightcap(ped) warrant issued when officers wish to execute a warrant at

night because that is when the

suspected illicit activity is

primarily occurring

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212 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

The Continuum of Contacts To understand when government can exercise its immense power, begin by analyz-

ing the variety of contacts people and government may have. These contacts can be

viewed as existing along a continuum, as shown in Figure 7.3. The continuum of

contacts represents the almost limitless variations of contacts between the public

and the police and illustrates how justification for police action increases as their

reasons build for thinking criminal activity is afoot.

At one end of the continuum, contact consists of nothing more than an individual

and an officer crossing paths and exchanging “hello’s.” Here, the police are unjusti-

fied taking any action. At the other extreme, an individual’s conduct leads to suffi-

cient probable cause and justifies police in arresting the person, by force if necessary.

Like any continuum, an infinite number of points exist between the two

extremes—a middle ground involving the many other daily contacts between the

citizenry and the government, in which the interactions are not so clearly defined.

This realm includes situations when the police or other government agencies are

considering, or actually conducting, an investigation, or when an individual or

business or other organization is merely suspected of illicit activity. Figure 7.4 illus-

trates the degree of intrusion on individual liberty and whether the Fourth Amend-

ment is implicated.

Although the intent of the Constitution is to prevent the government from

intruding on people’s lives when they have done nothing wrong, this freedom, as

continuum of contacts the almost limitless variations of

contacts between the public and

the police illustrating how

justification for police action

increases as their reasons for

thinking criminal activity is

afoot build

Ac tio

n of

in di

vi du

No illegal activity in private place

No illegal activity in a public place

Reasonable suspicion

Probable cause

Proof beyond a reasonable doubt

No action permitted by government

Police may observe; Use of electronic monitoring devices permitted

Stop Frisk No Miranda warning required

Arrest Search Miranda warning required for custodial interrogations

Incarceration

Sanctions against police for unlawful action • Exclusionary rule • Section 1983 action • Prosecution of police

Ac tio

n of

p ol

ic e

Figure 7.3 The Continuum of Contacts between Individuals and the Police

a d sw

o rt

h /C

e n g a g e L

e a rn

in g

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 213

with all constitutional rights, is not absolute. When police have lawful reason to act,

they are expected to do so, and they have the right to do so. The U.S. Supreme

Court has clearly stated that police have a responsibility, in fact a duty, to act to

prevent crimes and apprehend criminals and has shown continued support for law

enforcement. When police are suspicious, they would be foolish to turn their backs

until they can acquire more information and then return to try to find the person;

the suspect would be long gone.

The police officer’s job is to decide, often in a split second, where a particular

interaction with a suspect falls along the continuum. The system demands that police

make a knowledgeable good-faith decision in accordance with the Constitution. The

Supreme Court has continued to recognize the difficult job police have and that, given

a proper understanding of law, they often are able to make good decisions under chal-

lenging circumstances. The Constitution continues to give law enforcement the tools

they need to carry out their duties in an almost limitless number of situations.

NOTE: Shading shows degree of intrusion and deprivation, from highest degree (darkest) to lowest degree (lightest). Box size shows number of persons affected, from highest number (largest box) to lowest number (smallest box).

Arrest (officer takes suspect into custody)

Probable cause

Physical brief seizure on the spot to check suspicion (officer physically grabs suspect)

Reasonable suspicion

Show of force with submission (reasonable person would not feel free to leave)

Reasonable suspicion

Show of force without submission (fleeing suspect is not yet caught)

No objective basis

Voluntary encounters (citizen approaches police or police approach citizen

with no show of force to ask questions) No objective basis

N o t s e iz

u re

s S

e iz

u re

F o u rth

A m

e n d

m e n t

n o t im

p lic

a te

d F o u rth

A m

e n d

m e n t

im p

lic a te

Stops

Figure 7.4 Seizures and the Fourth Amendment

a d sw

o rt

h /C

e n g a g e L

e a rn

in g

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214 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

As contact between an individual and an officer proceeds upward along the

continuum, police acquire increasing justification to seize and search the person,

taking away the person’s most valued right—freedom. Each step on the continuum

builds on the previous one, like building blocks, adding either facts in quantity or

quality to allow further government intrusion. Chapter 8 addresses this area fur-

ther, but when probable cause exits, with or without a warrant, the police will be

justified in arresting the person.

As the continuum also shows, searches and seizures cannot be neatly separated.

At any point on the continuum of contacts, a situation may escalate to the next level

of contact and, thus, change how the police may or may not be permitted to act. For

example, the police may have no authority to act when driving by someone who

appears to be merely walking along a public sidewalk, but if the officer sees some-

thing in the rearview mirror that causes him or her to become suspicious, the situ-

ation could justify a stop and possibly a frisk. Depending on what results from

these interactions, if probable cause develops, the stop could escalate to the level of

an arrest and then a search incident to that arrest, and it could all happen in a mat-

ter of moments.

The law of search and seizure defines what authority government has when

interacting with the public and how agents can follow up on their suspicions. This

authority begins with an examination of the law of stop and frisk. Chapters 8 and 9

will consider these and other forms of seizures and searches.

The Law of Stop and Frisk The law of stop and frisk is the first point on the continuum of contacts in which

police have constitutional authority to interfere with a person’s freedom. Stop-

and-frisk law may be more easily understood by examining its purpose: to bal-

ance the rights of an individual and the government’s need for tools to carry out

its job of protecting society from lawbreakers. Police officers should neither be

expected to ignore their reasonable suspicions nor be denied the right to ensure

their own safety by checking for weapons. The law of stop and frisk balances

the rights of the people and the individual during that “in-between time,” when

probable cause has not yet developed but officers should be expected to

respond, at least in a limited way. The understanding that any intrusion on a person’s freedom involves Fourth Amendment protections, including stops and

frisks, is crucial.

Basic Definitions

The law of stop and frisk gives law enforcement the authority to act in the gray

area of the continuum, between the point of no unlawful activity whatsoever

and thus, no authority for officers to act, and the point of probable cause, when

they may arrest. This area of law deals not with reasonable belief, but reason-

able suspicion. If the officers do not have probable cause to arrest, but suspect a person is engaged in illegal activity, what

is their recourse?

Articulable facts are descriptions or actions described in

clear, distinct statements. Although the suspect is not free to go

just then, without the investigation producing anything more, he

stop a brief detention of a person, short of an arrest, based

on specific and articulable facts

for the purpose of investigating

suspicious activity

articulable facts actions described in clear, distinct

statements

A stop is a brief det ention of a person based on spec ifi c and articulable facts for the purpose of inves tigating suspicious activity.

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 215

or she will be free to go shortly. A stop differs from an arrest,

in that when arrested, a person is not free to go. The Court

has held that because this detention is not an arrest (it is a

stop), no Miranda warning need be given. For this reason, a driver stopped by the police for a traffic violation need not

be advised of his or her Miranda rights—although the driver is not free to go for a short time, he or she will be, so it is not

an arrest.

Although the words stop and frisk do not appear in the Fourth Amendment, the Court has found they are tantamount to a search and sei-

zure of the person, with the only differences being the standard required by the

police to act, what they may then do, and the duration. The constitutional require-

ment of reasonableness is required before one is stopped or frisked, just as it is before one is arrested and searched.

Law enforcement officers talk about developing a

“sixth sense”—an ability to know that something is not

right. What they are really talking about are observational

skills officers develop. One deputy police chief describes it

as “soft vision”—surveying all that is present while on

patrol, paying specific attention to those events the officer

is trained to note. Tire tracks in fresh snow, furtive conduct

by a pedestrian, a discarded parcel, a door ajar, the atten-

dant at an all-night convenience store not visible—to the

average citizen such circumstances mean nothing and probably would not even

be noticed. To the trained and experienced eye of the law enforcement profes-

sional, however, they mean an opportunity to delve further into what may be

criminal activity. Just what can a government agent do in response to such suspi-

cions? The law of stop and frisk permits officers to act on their suspicions rather

than to turn away, awaiting that infrequent, obvious crime to be committed

before their eyes.

An action such as fleeing from the police will certainly raise the circumspec-

tion of law enforcement and contribute heavily in establishing reasonable

suspicion. In Illinois v. Wardlow (2000), a stop was held lawful when the suspect was in a high-crime area and fled upon seeing the police. The Court held that the

individual’s flight at the sight of police was enough to provide reasonable

suspicion for an investigatory stop. In United States v. Arvizu (2002), the Supreme Court reaffirmed that reasonable suspicion (fleeing from the law) may be part of

the totality of the circumstances. Arvizu also reaffirmed the importance of an officer ’s training and experience in determining the existence of reasonable

suspicion.

Terry v. Ohio

The landmark case for stop-and-frisk law is Terry v. Ohio (1968), which provides a classic example of how a stop-and-frisk situation may arise and how the law deals

with it. In this case, the Court addressed the common law enforcement practice of

stopping suspects to ask them questions to assess whether they were involved in

criminal activity.

A fr isk is a limited pat-down search for weapons for the prot ect ion of the government agent and ot hers. It is not automatically permitt ed with a stop, but only wh en the agent suspect s the person is armed and dangerous.

frisk a reasonable, limited pat- down search for weapons for the

protection of a government agent

and others

The law of stop and fr isk deals with that time fr ame during wh ich offi cers follow up on their suspicions but before the time that the requisite probable cause is es tablished to justify an arres t (Terry v. Ohio, 1968).

MYTH Anytime a person is legally

stopped by an officer, that officer

has the right to conduct a frisk to

discover if that person is conceal-

ing any contraband.

REALITY A frisk is a limited pat-down search

for weapons for the protection of

the officer and others. It is not auto-

matically permitted with a stop but

only when the officer suspects the

person is armed and dangerous.

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216 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Detective Martin McFadden had been a police officer with

the Cleveland Police Department for 39 years, and 35 of that

as a detective. To untrained eyes, the men Detective McFad-

den saw outside the jewelry store that day were merely stand-

ing there talking, but McFadden sensed more. On the basis of

his experience, he suspected they were casing the store, plan-

ning to rob it, and possibly were armed. He watched as the

two men walked back and forth, looking into the store win-

dow, walking to the corner, and then returning to talk to each

other. Another man joined them, then went inside the store,

returned, and the routine continued.

When the three men were together outside the store,

McFadden approached them, identified himself as a police

officer, asked their names and grabbed one of the men, placing

him between himself and the other two. He quickly patted down the outer clothing

of that man, later identified as John Terry, and felt what could be a gun in Terry’s

pocket, but he could not remove it. He ordered the three into the store at gunpoint,

removed Terry’s coat and took a .38-caliber revolver from the pocket. When he pat-

ted down the other men, he found a revolver in the coat of one. Both men were

charged with carrying concealed weapons.

The defense lawyers argued the guns had been seized illegally, so could not be

used as evidence. The Ohio trial judge found both suspects guilty, and Terry and

the other man appealed their conviction to the U.S. Supreme Court. Before this case

reached the Supreme Court, the other man died, so the decision refers to only

defendant Terry.

The legal issue before the Court was simply phrased: “whether it is always

unreasonable for a policeman to seize a person and subject him to a limited

search for weapons unless there is probable cause for an arrest.” The U.S.

Supreme Court upheld the Ohio court verdict, ruling Detective McFadden had

acted reasonably because his experience and training supported his suspicion

that the three men were planning a robbery; the robbery would probably involve

weapons; and nothing occurred to make him think differently. He had to act

quickly when he saw the three men gather at the store. In their opinion, the

Court stated,

Each case of this sort will, of course, have to be decided on its own facts. We

merely hold today that where a police officer observed unusual conduct which

leads him reasonably to conclude in light of his experience that criminal activ-

ity may be afoot and that the persons with whom he is dealing may be armed

and presently dangerous, where in the course of investigating this behavior he

identifies himself as a policeman and makes reasonable inquiries, and where

nothing in the initial stages of the encounter serves to dispel his reasonable fear

for his own or others’ safety, he is entitled for the protection of himself and

others in the area to conduct a carefully limited search of the outer clothing of

such persons in an attempt to discover weapons which might be used to

assault him.

Therefore, such a search is reasonable under the Fourth Amendment, and any

weapons seized may properly be introduced in evidence against the person from

The Terry dec ision es tablished that, in wh at is termed a Terry stop, an offi cer, with articulable reasonable suspicion that a crime is occurring, has occurred, or is about to occur, may conduct a brief inves tigatory stop, including a pat down for weapons if the offi cer has reason to suspect the person is armed and dangerous.

Terry stop an officer with articulable reasonable suspicion

may conduct a brief investigatory

stop, including a pat down for

weapons if the officer has reason

to suspect the person is armed

and dangerous

reasonable suspicion an experienced police officer’s

hunch or intuition

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 217

whom they were seized. Guidelines established by Terry v. Ohio determining whether a stop or frisk is valid include the following:

■ Suspicious circumstances, that is, conduct that leads an experienced officer to

believe that a crime is about to be committed and that the person about to

commit the crime may be armed and dangerous. ■ While investigating the behavior, officers identify themselves as police officers

and make reasonable inquiries, for example, “What is your name?” ■ If officers are still suspicious and suspect the person may be armed and dan-

gerous, they may conduct a limited search of the person’s outer clothing to

protect themselves and others in the area.

Consider next what are likely consequences of ignoring the constraints on

searches and seizures imposed by the Fourth Amendment.

Consequences of Fourth Amendment Violations The Exclusionary Rule

When police violate a person’s constitutional rights by conduct-

ing an unlawful stop and frisk or search and seizure, several

consequences may occur. The exclusionary rule may prevent evi-

dence seized in violation of a person’s constitutional rights from

being admitted into court; an officer who has violated someone’s

rights may be sued, together with his or her agency, pursuant to

Section 1983 of the U.S. Code; and an officer could be prosecuted

criminally under some circumstances as well. These possible

results are discussed later in this text. As noted in United States v. Leon (1984),

The Fourth Amendment contains no provision expressly preclud-

ing the use of evidence obtained in violation of its commands. . . .

This rule thus operates as a judicially created remedy designed to

safeguard Fourth Amendment rights generally through its deter-

rent effect, rather than a personal constitutional right of the per-

son aggrieved.

The exclusionary rule is by far the most frequently used

means to address constitutional infractions by the government

in criminal cases because of its proximity to, and absolute effect

on, searches and seizures found to be unconstitutional because

of police conduct.

The exclusionary rule also helps preserve judicial integrity by

preventing judicial agreement in denying a person’s Fourth

Amendment rights, deters police misconduct by making improp-

erly obtained evidence inadmissible in court, and protects citizens’ constitutional

“right to privacy.” However, as Wilson (1986, p. 1) asserts,

The exclusionary rule is among the most controversial and the most passion-

ately debated rules of law governing our criminal justice system. It is not hard

exclusionary rule judge- made case law promulgated by

the Supreme Court to deter

police or government misconduct

CASE IN BRIEF

Terry v. Ohio (1968)

ISSUE Does an officer violate the Fourth Amendment when he

seizes a person and searches

that person for weapons on facts

that do not rise to the level of

probable cause?

RULING No. The Fourth Amendment prohibits unreason-

able searches and seizures. Bal-

ancing the need for effective law

enforcement and the safety of offi-

cers, a person may be subjected to

a brief detention and a frisk when

the objective facts support the

belief that a crime is occurring, has

occurred, or is about to occur and

that the person detained may be

armed and dangerous.

An unlawful search or seizure can have two serious consequences : (1) the evidence may be excluded fr om court and (2) internal sanctions as well as civil and criminal liability may be incurred.

The exclusionary rule is judge- made case law promulgated by the Supreme Court to det er law enforcement misconduct. It prohibits evidence obtained in violation of a person’s constitutional rights fr om being admiss ible in court (Weeks v. United States , 1914).

The primary purpose underlying the exclusionary rule is to det er government misconduct.

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218 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

to understand why this is so. The exclusionary rule is the primary means by

which the Constitutional prohibition of unreasonable searches and seizures is

currently enforced; thus it is seen by some as the primary protection of per-

sonal privacy and security against police arbitrariness and brutality. It is also

the basis for judges’ decisions to exclude reliable incriminating evidence from

the trials of persons accused of crime, and is thus considered by others to be

little more than a misguided loophole through which criminals are allowed to

escape justice.

The exclusionary rule goes back as far as 1886, when the Supreme Court held in

Boyd v. United States that forced disclosure of papers that evidenced a crime could not be admissible in court:

The practice had obtained in the colonies of issuing writs of assistance to the

revenue officers, empowering them, in their discretion, to search suspected

places for smuggled goods, which James Otis pronounced “the worst

instrument of arbitrary power, the most destructive of English liberty and

the fundamental principles of law, that ever was found in an English law

book”; since they placed “the liberty of every man in the hands of every

petty officer.”

Numerous theories suggest ways the law might respond to unlawful searches

and seizures by the police other than preventing evidence, sometimes the only evi-

dence in a case, from getting to a jury. However, the Court has continued to hold

that illegally obtained evidence be excluded as the primary means of upholding an

individual’s constitutional rights.

The exclusionary rule reflects an insistence of U.S. law that the ends do not

justify the means. If they did, any means of eliciting evidence would be permissible,

including torture. Besides the inherent fact that forced confessions are unreliable,

torture is not something the spirit of the United States condones. However, with the

United States being pushed to its limits with respect to terrorism, new debate over

means of obtaining information has arisen, as was the case regarding the prisoner

treatment in Abu Ghraib Prison during the Iraq War.

Sergeant Oldham is driving through an area well

known for drug dealing. He has been a police offi-

cer for more than 20 years and is well known for

his instincts relating to criminal activity. He sees

one young man standing on the corner. Sergeant

Oldham has a “gut feeling” that the man is dealing

crack. Oldham stops his patrol car, gets out, and

orders the man to put his hands up. The man com-

plies, but as he does, he drops a baggie containing

10 rocks of crack. He is arrested.

■ What is the required level of suspicion to stop the young man?

■ Is the officer’s “gut feeling” enough to do so?

■ What facts does the sergeant have to support his action?

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 219

Some question whether another way can be found to discourage police miscon-

duct without punishing the public. Del Carmen (2010, pp. 116–117) suggests alter-

natives that have been considered, including an independent review board in the

executive branch, a civil tort action against the government, a hearing separate

from the main criminal trial but before the same judge or jury, adoption of an

expanded good faith exception, and adoption of the British system (which admits

the evidence but sanctions the officer). Unquestionably a cost/benefit analysis is at play, but as Chief Justice Warren Burger stated in United States v. Calandra (1974), “The rule is a judicially created remedy designed to safeguard Fourth Amendment

Rights generally through its deterrent effect.”

Previous editions of this text noted how firm the Supreme Court had stood in

their intolerance toward unreasonable search and seizure by domestic law enforce-

ment, even when evidence that would otherwise convict the guilty is not permitted.

This stance is undergoing change, however, and the Court, as recently as in Davis v. United States (2011), has begun to move away from the idea that the exclusionary rule is a “self-executing mandate implicit in the Fourth Amendment itself.” In other

words, it is not automatic. Because of the high societal cost, a balancing of interests

must be done. The deterrence benefit must outweigh the cost of lost evidence,

which is often trustworthy and reliable. The Court will look at the flagrancy of the

violation and the culpability of the officer when balancing the interests.

Interestingly, in Hudson v. Michigan (2006) the Court specifically ruled that viola- tion of the knock-and-announce rule does not require suppression of the evidence

obtained during the ensuing search. In other words, the general rule excluding

Sergeant Oldham is driving through an area well

known for drug dealing. He has been a police offi-

cer for more than 20 years and is well known for

his instincts relating to criminal activity. He sees

one young man standing on the corner. Sergeant

Oldham has a “gut feeling” that the man is dealing

crack. Oldham stops his patrol car two blocks

away and watches the man for 20 minutes.

During that time, Oldham observes four

separate occasions where one person walks up to

the man, hands him something, and then the

man gives the person something back. The two

people then part ways. Sergeant Oldham also

sees the man wave and whistle at passing cars. A

couple of the cars pull over, the man leans in the

driver ’s window for a minute or so, then walks

away and the car leaves. In his years of experi-

ence, Sergeant Oldham believes this man is deal-

ing drugs.

The next time a pedestrian approaches the

man, Sergeant Oldham drives his patrol car up to

the pair who, upon seeing the officer, start to walk

away. Oldham gets out of his squad and orders

both of the people to stop. As the man stops and

turns around, he drops a baggie containing crack

on the sidewalk. The man is arrested.

■ How is this scenario different from the preceding one?

■ What facts does the sergeant have to support a stop?

■ What effect does the sergeant’s experience have on the outcome?

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220 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

evidence obtained in violation of the Fourth Amendment does not apply to the

knock-and-announce rule. In this case, the Court did refer to alternative remedies

such as civil lawsuits or internal discipline but held that the exclusionary rule was

too high a social cost for this violation.

Although opponents are many, those who support the exclusionary rule believe

the risk far outweighs compromising constitutional ideals. Weeks v. United States (1914) and Mapp v. Ohio (1961) firmly established the exclusionary rule in criminal procedure.

Weeks v. United States In Weeks v. United States, Fremont Weeks was charged with using the mail for illegal gambling purposes after officers searched his home

on two different occasions without a warrant. The issue was simply whether ille-

gally obtained evidence is admissible in court, to which the Supreme Court held it

was not, stating that the right to be free from unreasonable searches and seizures

under the Fourth Amendment applies

to all invasions on the part of the government and its employees of the sanctity

of a man’s home and the privacies of life. It is not the breaking of his doors and

the rummaging of his drawers that constitutes the essence of the offense; but it

is the invasion of his indefeasible right to personal security, personal liberty and

private property.

The Weeks Court specifically excluded illegally obtained evidence from use in fed- eral prosecutions. Mapp v. Ohio (1961) extended the doctrine, through incorpora- tion, to state proceedings.

Mapp v. Ohio When the Fourteenth Amendment was passed, forbidding states

to “deprive any person of life, liberty or property, without due process of law,” the

question arose whether the exclusionary rule should be applied at the state level.

Wolf v. Colorado (1949) held that the exclusionary rule was not then applicable at the state level. This precedent was followed for more than a decade. Some evidence was

excluded for other reasons, however. For example, Elkins v. United States (1960) disal- lowed the admission of evidence illegally obtained by state officials into federal trials

(the silver platter doctrine). In 1961, the Wolf precedent was reversed in Mapp v. Ohio. In Mapp v. Ohio, the defendant refused to allow officers without a warrant into

her home. The officers had information that a suspect was hiding in her basement

and returned three hours later with reinforcements. When Mapp did not respond,

officers broke in and searched the home, finding obscene materials. The Supreme

Court, overruling Wolf, held that “all evidence obtained by searches and seizures in violation of the Constitution are by the same authority inadmissible in a state

court.” Reversing the trial court, the Supreme Court stated,

Since the Fourth Amendment’s right of privacy has been declared enforceable

against the States through the Due Process Clause of the Fourteenth Amend-

ment, it is enforceable against them by the same sanction of exclusion as is used

against the Federal government. Were it otherwise, then just as without the

Weeks rule the assurance against unreasonable searches and seizures would be “a form of words,” valueless and undeserving of mention in a perpetual charter

of inestimable human liberties, so too, without that rule the freedom from state

invasions of privacy would be ephemeral.

Mapp v. Ohio made the exclusionary rule app licable at the state level.

CASE IN BRIEF

Mapp v. Ohio (1961)

ISSUE May evidence obtained in violation of the Fourth Amend-

ment be used in state court?

RULING No. Evidence obtained through a violation of

the Fourth Amendment cannot be

used in state court, just as it can-

not be used in federal court. This

provision has been incorporated.

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 221

Evidence Obtained in a Manner That Shocks the Conscience In Rochin v. California (1952), the Court held that searches that “shock the conscience” are a violation of due process, and any evidence so obtained will, therefore, be inadmis-

sible. It is important to note that this “shock the conscience” criterion is a different

standard under due process than that which was discussed previously. The stan-

dard here deals with due process issues that arise from specific acts by officers, not

from those enacted by a legislature into law. In Rochin, the police took the suspect to the hospital and had his stomach pumped after observing him swallow pills.

Morphine capsules were recovered in this search, but in invoking the exclusionary

rule, the Court stated,

[T]he proceedings by which this conviction was obtained do more than offend

some fastidious squeamishness or private sentimentalism about combating

crime too energetically. This is conduct that shocks the conscience. Illegally

breaking into the privacy of the petitioner, the struggle to open his mouth and

remove what was there, the forcible extraction of his stomach’s contents—this

course of proceeding by agents of the government to obtain evidence is bound

to offend even hardened sensibilities. They are methods too close to the rack and

screw to permit constitutional differentiation.

Thus, in Rochin, the evidence was excluded as a result of a due process violation, not by the application of the exclusionary rule. At the time of the decision, the

exclusionary rule had not yet been applied to the states through Mapp. The exclusionary rule may affect specific illegally obtained evidence, as well as

any other evidence obtained as a result of the original illegally obtained evidence.

Such evidence is referred to as “fruit of the poisonous tree.”

Fruit of the Poisonous Tree Silverthorne Lumber Co. v. United States (1920) extended the exclusionary rule delineated in Weeks (1914). In this case, a U.S. mar- shal unlawfully entered and searched the Silverthorne Lumber Company’s offices

and illegally took books and documents. When the company demanded their

return, the government did so, but not before making copies of the documents.

These copies were later impounded by the district court and became the basis for a

grand jury indictment. A subpoena was then served on the company to produce the

originals. When the company refused, it was convicted of contempt of court. The

Supreme Court, however, reversed the conviction saying, “The essence of a provi-

sion forbidding the acquisition of evidence in a certain way is that not merely evi-

dence so acquired shall not be used before the Court, but that it shall not be used at

all.” In other words, once the primary source (the “tree”) is proved to have been

obtained unlawfully, any secondary evidence derived from it (the “fruit”) is also

inadmissible.

The fruit of the poisonous tree doctrine states that evidence obtained as a

result of a previous illegality must be excluded from trial. This extension of the

exclusionary rule is based on the same rationale as the exclusionary rule itself, that

is, to deter illegal police activity and to preserve the integrity of the court. The

Supreme Court has, however, permitted such evidence to be used in some

proceedings.

In United States v. Calandra (1974), the Court ruled that “fruits of illegally seized evidence” could be used as a basis for questions to a witness before a grand jury.

fruit of the poisonous tree doctrine evidence obtained as a result of a previous

illegality (a constitutionally invalid

search or activity) must be

excluded from trial

Evidence obtained in ways that shock the conscience will not be admiss ible in a court of law.

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222 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

In addition, some lower courts have allowed such evidence to be used in sentencing

and in probation or parole revocation hearings.

In Wong Sun v. United States (1963), the Court held that statements obtained even indirectly as a result of an illegal arrest or search are not admissible in court

because they are “tainted fruit of the poisonous tree.” In Wong Sun, however, the Court also stated that because he voluntarily returned several days after providing

what was deemed an inadmissible statement, the subsequent statement had

become so attenuated as to dissipate the taint. However, a meaningful break in the events must occur, so in Taylor v. Alabama (1982) the Court held that even when a suspect was read his Miranda rights several times after an unlawful arrest before he confessed, the admission was not admissible.

In examining the question of how far to follow the taint of the original violation,

the court will consider several factors, including: (1) the length of time that passed

between the initial violation and the procurement of the secondary evidence,

(2) any occurrence of intervening events, and (3) how blatant or deliberate the ini-

tial violation was. The totality of these spacial and temporal factors allows the court

to assess whether or not the secondary evidence is so far removed from the initial

constitutional violation that the “taint” is effectively removed. The dissipation of

taint, through time and space, is called the attenuation doctrine, and it allows

evidence that was obtained after a previous illegality to be introduced in court

(Brown v. Illinois, 1975). As such, the attenuation doctrine is an exception to the fruit- of-the-poisonous-tree doctrine.

Any assumption about the exclusionary rule that implies the Supreme Court

does not support law enforcement is simply not the case. Although the Supreme

Court has decided cases that eliminated evidence police obtained illegally, it has

also established some commonsense exceptions to the exclusion-

ary rule.

Exceptions to the Exclusionary Rule

The exclusionary rule applies only in criminal trials in which a

constitutional right has been violated. Several important excep-

tions to the exclusionary rule exist that have evolved from com-

mon law by the U.S. Supreme Court.

The Inevitable Discovery Doctrine The inevitable discovery doctrine

resulted from Nix v. Williams (1984). To understand how this doctrine came about, one must backtrack to a previous trial, Brewer v. Williams (1977). The trials involved the same case and defendant (Williams) but different prosecutors. The case

involved in both trials began on Christmas Eve of 1968, when 10-year-old Pamela

Powers disappeared while attending an event at a YMCA with her family in Des

Moines, Iowa. Shortly after she was reported missing, a 14-year-old boy reported

having been asked by a YMCA resident to hold several doors open for him while

the man loaded a bundle from the building into a car. The boy reported seeing two

skinny white legs within the bundle.

An arrest warrant was subsequently issued for Robert Williams, a YMCA resi-

dent and an escapee from a psychiatric hospital. Williams eventually turned him-

self in to police in Davenport, Iowa. An agreement was reached through Williams’s

lawyer that the defendant would be returned by police to Des Moines.

attenuation doctrine evidence obtained as a result of

a previous illegality may be

admissible at trial if it is so far

removed, through time and

space, from the original violation

that any “taint” has dissipated

inevitable discovery doctrine exception to exclusionary rule deeming

evidence admissible even if

seized in violation of the Fourth

Amendment when it can be

shown that the evidence would

have inevitably been discovered

through lawful means

Among the exceptions to the exclusionary rule are the inevitable discovery doct rine, exist ence of a valid independent source, harmless error, and good faith.

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 223

All agreed that Williams would not be interrogated in any way during the 160-

mile trip. However, during the drive, knowing that Williams was a psychiatric

patient and that he possessed a strong religious faith, one officer said the following

to Williams (known as the “Christian Burial Speech”):

I want to give you something to think about while we’re traveling down the

road. . . . Number one, I want you to observe the weather conditions, it’s raining,

it’s sleeting, it’s freezing, driving is very treacherous, visibility is poor, it’s going

to be dark early this evening. They are predicting several inches of snow for

tonight, and I feel that you yourself are the only person that knows where this

little girl’s body is, that you yourself have only been there once, and if you get a

snow on top of it, you yourself may be unable to find it. And since we will be

going right past the area on the way to Des Moines, I feel that we could stop and

locate the body, that the parents of this little girl should be entitled to a Christian

burial for the little girl who was snatched away from them on Christmas Eve and

murdered. And I feel we should stop and locate it on the way rather than wait-

ing until morning and trying to come back out after a snowstorm and possibly

not being able to find it at all.

The detective told Williams that he did not want an answer, but that he just

wanted Williams to think about it as they drove. Williams eventually directed the

officers to the little girl’s body.

Although the lower courts admitted Williams’s damaging statements into evi-

dence, the Supreme Court in Brewer v. Williams affirmed the court of appeals’ deci- sion that any statements made by Williams could not be admitted against him

because the way they were elicited violated his constitutional right to counsel. This

case is also discussed in the section dealing with confessions and the right to coun-

sel. The Court said,

The pressures on state executive and judicial officers charged with the adminis-

tration of the criminal law are great, especially when the crime is murder and the

victim a small child. But it is precisely the predictability of those pressures that

makes imperative a resolute loyalty to the guarantees that the Constitution

extends to us all.

The Court granted Williams a second trial without his damaging statements

being admissible. At this trial (Nix v. Williams), the Court allowed the body to be admissible evidence, not because it was found as a result of the improper question-

ing by the police, but because an independent search party would have eventually

discovered it:

If the government can prove that the evidence would have been obtained inevi-

tably and, therefore, would have been admitted regardless of any overreach by

the police, there is no rational basis to keep that evidence from the jury in order

to ensure the fairness of the trial proceedings.

Williams was convicted.

Valid Independent Source If evidence that might otherwise fall victim to the

exclusionary rule is obtained from a valid, independent source, that evidence can be

admitted. In Segura v. United States (1984), although evidence discovered during an illegal entry into an apartment was excluded, evidence later found in the apartment

CASE IN BRIEF

Nix v. Williams (1984)

ISSUE Should evidence be excluded from trial when the

suspect gives information in

violation of his Sixth Amendment

right to counsel that leads to the

discovery of that evidence?

RULING No. When the prosecution is able to show that

the evidence would have been

discovered through lawful means

anyway, it is admissible.

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224 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

while a search with a warrant was being executed was admissible because the war-

rant was obtained with information totally unconnected with the illegal entry.

In Murray v. United States (1988), the Court again held that evidence initially seen during an illegal search but later recovered under a valid warrant would be

admissible. In this case, the police initially broke in without a warrant but returned

later with a valid warrant not using what they had seen during the initial break-in

to support the probable cause in the warrant.

Technology is bringing new challenges to the interpretation of this doctrine,

including how the courts view searches of items containing digital content. As Rut-

ledge (2010, p. 136) observes, “Eventually the U.S. Supreme Court will have to weigh

in and settle the question of whether the Fourth Amendment applies differently to

digital containers than to others.” Because this would include cell phones, Rutledge

suggests that until the Court rules on this issue, the “prudent move” for law enforce-

ment officers is to keep the “independent source” doctrine in mind and try to establish

other ways to justify cell phone searches in addition to searching incident to arrest.

Harmless Error The harmless error exception refers to instances in which the

preponderance of evidence suggests the defendant’s guilt and the “tainted” or ille-

gal evidence is not critical to proving the case against the defendant. This standard

was first set forth by the Court in Chapman v. California (1967) when it ruled “ . . . that before a federal constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a reasonable doubt.” And in

Harrington v. California (1969), the Court ruled that the evidence should be exam- ined as a whole, and that if overwhelming untainted evidence supported the con-

viction, or if the error involved a well-established element of the crime, then the

error would be considered “harmless.”

harmless error an exception to the exclusionary rule involving

the admissibility of involuntary

confessions and referring to

instances in which the

preponderance of evidence

suggests the defendant’s guilt

and the “tainted” or illegal

evidence is not critical to proving

the case against the defendant

Sergeant Worrall is on patrol in her squad car when

she sees a car being driven the wrong way down a

one-way street. After the car turns the corner, Ser-

geant Worrall turns on her red lights and siren and

pulls the car over.

Sergeant Worrall walks up to the driver and

thinks it is someone she knows who is a drug

dealer. She tells the driver, “Get out of the car.”

When the driver does, Sergeant Worrall reaches

into the driver’s jacket pocket and pulls out heroin.

She arrests the man.

Before she brings the man to jail, Sergeant Wor-

rall checks to see if the man has any warrants. This

is something that is routinely done every time

someone is pulled over. The driver is found to have

a felony warrant for his arrest.

Later at trial, the driver argues that the heroin

should be suppressed under the exclusionary rule.

The rationale is that Sergeant Worrall did not have

probable cause to search the driver.

■ Should the heroin be excluded from trial? Why or why not?

■ Would an exception to the exclusionary rule apply? Which one?

■ What facts are available to show that the heroin would have been inevitably found?

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The reversal of a conviction is no longer automatic when a constitutional viola-

tion occurs. As long as the error was harmless, of which the burden is on the pros-

ecution to show beyond a reasonable doubt, the conviction will stand.

In Arizona v. Fulminante (1991), the Court ruled that the harmless error doctrine applies to cases involving admissibility of involuntary confessions. In this case,

Fulminante was accused of murdering his stepdaughter, but the murder could not

be proved. While he was in prison on an unrelated charge, he became friends with

another inmate, Sarivola, who later became a paid FBI informant. Sarivola told

Fulminante that Fulminante was getting hostile treatment from the other inmates

because of the rumor that Fulminante was a child killer. He suggested that if Ful-

minante would tell him the truth, he would protect him. Fulminante confessed to

him. At trial, the defense sought to suppress the confession on the grounds it was

coerced. The Court agreed. The prosecution then sought to have the confession

admitted under the harmless error doctrine, but the Court ruled the error was not

harmless, because the confession was likely to contribute to Fulminante’s convic-

tion. The confession was not admitted.

Good Faith The good faith exception involves instances in which police offi-

cers are not aware they are violating Fourth Amendment principles. The good faith

exception often comes into play when the government is executing arrest or search

warrants. If such warrants are later found to be invalid, perhaps because of a typo-

graphical error citing the wrong address or apartment number, the evidence

obtained while the warrants are executed is still admissible because the officers

were acting in “good faith.”

Good faith boils down to whether police followed procedure and who erred

(i.e., did a neutral magistrate make a mistake in signing a warrant?). In a dissenting

opinion in Stone v. Powell (1976), Justice Bryon White argued that the exclusionary rule should not disqualify evidence “seized by an officer acting in the good-faith

belief that his conduct comported with existing law. . . . Excluding the evidence can

in no way affect his future conduct unless it is to make him less willing to do his

duty.” Indeed, the salience of the balancing test—weighing the costs to society

against the deterrent effect—is especially strong when a court invokes the good

faith exception because there can be no benefit to society by allowing evidence of

guilt to be wiped away when officers truly believe they are acting in accordance

with constitutional procedure.

United States v. Leon (1984) and Massachusetts v. Sheppard (1984), two cases decided on the same day, are “arguably the most important cases decided on the

exclusionary rule since Mapp v. Ohio (1961). They represent a significant, although narrow, exception to that doctrine.” (del Carmen, 2010, p. 104)

In United States v. Leon (1984), the Supreme Court specifically addressed the issue of whether the exclusionary rule should be modified so evidence obtained by

an officer with a warrant later found to not be based on sufficient probable cause

could still be used in court against the defendant at trial. Because no police mis-

conduct occurred, which is what the exclusionary rule seeks to discourage, when

an officer lawfully executes a warrant, the possibility that the warrant itself was

issued without sufficient probable cause should not withhold valuable evidence

from the trial.

good faith officers are unaware that they are acting in

violation of a suspect’s

constitutional rights

CASE IN BRIEF

Arizona v. Fulminante (1991)

ISSUE Does the harmless error doctrine apply to coerced

confessions?

RULING Yes. If the conviction would have resulted without the

use of the evidence obtained

from the coerced confession, the

use of that evidence is a “harm-

less error” and the conviction

will stand.

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226 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

The Leon case held that the exclusionary rule would be applied to only the fol- lowing three situations in searches conducted pursuant to a warrant:

■ The magistrate abandoned the prescribed detached and neutral role in issuing

the warrant. ■ The officers were dishonest or reckless in preparing their affidavit or the

search warrant. ■ The officers could not have harbored an objectively reasonable belief in the

existence of probable cause.

Remember that the purpose of having a neutral magistrate is to remove from

the police the responsibility of determining probable cause. If the police are acting

in good faith on the validity of the warrant (which directs an officer to carry out the

warrant), the motivation of the exclusionary rule no longer applies because it is not

serving to prevent police misconduct.

Whereas the issue in Leon was the failure of the affidavit to establish probable cause, the critical point in Sheppard, in contrast, was that although the police did establish probable cause, a typographical error occurred in the warrant (the judge

forgot to cross out the words controlled substance—an important difference with substantial constitutional implications). Note, however, that Leon and Sheppard establish a good faith exception only if a warrant has been obtained. The onus is

then on the magistrate, not the officer: “In these cases, the Court said that there

were objectively reasonable grounds for the officers’ mistaken belief that the war-

rants authorized the searches. . . . The cases are similar . . . in that judges, not the

police, made the mistakes. The Court said that the evidence in both cases was

admissible because the judge, not the police, erred and the exclusionary rule is

designed to control the conduct of the police, not the conduct of judges” (del Car-

men, 2010, p. 104).

Whereas the Leon case is limited to searches pursuant to a warrant, Illinois v. Rodriguez (1990) took this concept a step further by not invoking the exclusionary rule to a search based on an officer’s reasonable, albeit mistaken, belief that a third

party actually had authority to consent to a search. In Maryland v. Garrison (1987), police obtained a warrant to search what they honestly thought was a single apart-

ment unit at a location. However, when the contraband was found in a second

apartment there, even though it was not included in the warrant, the evidence was

held to be admissible.

In 1995 in Arizona v. Evans, the Court continued the trend to broaden instances when objective good faith on the part of a police officer will save a constitutionally

defective search: “The exclusionary rule does not require suppression of evidence

seized in violation of the Fourth Amendment where the erroneous information

resulted from clerical errors of court employees.” In this case, officers observed

Isaac Evans driving the wrong way on a one-way street. During the traffic stop,

officers learned Evans’s driver’s license had been suspended and an outstanding

misdemeanor warrant had been issued for his arrest. While being handcuffed,

Evans dropped a hand-rolled cigarette that turned out to be marijuana. More mari-

juana was found inside Evans’s car.

At trial, Evans moved to suppress the evidence as fruit of an unlawful arrest—

the arrest warrant for the misdemeanor had been cancelled 2 weeks before the

arrest but had not been entered into the system’s database because of a clerical error

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 227

by a court employee. The Court ruled, however, that because the police whose

conduct the exclusionary rule was meant to control, did not commit the error, then

the exclusionary rule should not apply. In other words, the police had made an

“honest mistake.”

Herring v. United States (2009) “resolves the lingering question of whether evidence that is the fruit of an erroneous arrest, based on an error in a law

enforcement-maintained database, is admissible. The answer is yes. The good

faith exception to the exclusionary rule operates to admit unlawfully obtained

evidence when officers are acting reasonably and make honest mistakes” (Means

and McDonald, 2009, p. 24). The officer in the case knew Bennie Herring, and

when Herring was in the vicinity, the officer checked for warrants on him. The

warrant clerk advised the officer that the neighboring county had an active arrest

warrant for Herring, so the officer pulled him over and arrested him. The search

incident to the arrest turned up methamphetamine in Herring’s pocket and a

pistol in his vehicle. Shortly afterward, the clerk informed the officer that no

active arrest warrant existed because it had been recalled 5 months previously.

In the 5–4 decision, Chief Justice John Roberts wrote the majority opinion

adopting the balancing approach to the exclusionary rule, in which the court bal-

ances the costs of exclusion of the evidence to the public safety to the deterrent

benefit to the police, and concluded that under this balance the exclusionary rule

did not apply:

1. The fact that a Fourth Amendment violation occurred—i.e., that a search or

arrest was unreasonable—does not necessarily mean that the exclusionary

rule applies.

2. The extent to which the exclusionary rule is justified by these deterrence prin-

ciples varies with the culpability of the law enforcement conduct.

3. To trigger the exclusionary rule, police conduct must be sufficiently deliberate

that exclusion can meaningfully deter it, and sufficiently culpable that such

deterrence is worth the price paid by the justice system. As laid out in our

cases, the exclusionary rule serves to deter deliberate, reckless or grossly neg-

ligent conduct, or in some circumstances recurring or systemic negligence.

The error in this case does not rise to that level.

4. We do not suggest that all recordkeeping errors by the police are immune

from the exclusionary rule. In this case, however, the conduct at issue was not

so objectively culpable as to require exclusion.

Petitioner’s claim that police negligence automatically triggers suppression

cannot be squared with the principles underlying the exclusionary rule, as they

have been explained in our cases. In light of our repeated holdings that the

deterrent effect of suppression must be substantial and outweigh any harm to

the justice system, we conclude that when police mistakes are the result of neg-

ligence such as that described here, rather than systemic error or reckless disre-

gard of constitutional requirements, any marginal deterrence does not “pay its

way.” In such a case, the criminal should not go free because the constable has

blundered. (Herring v. United States, 2009)

The Herring decision broadens the good faith exception and shifts the analysis to one of “deliberateness and culpability.” The Court has continued down this same

CASE IN BRIEF

Arizona v. Evans (1995)

ISSUE Does the exclusionary rule apply to evidence seized as

a result of an inaccurate police

record (an arrest warrant)?

RULING No. Court employees, not the police, were responsible

for the inaccurate record. The

application of the exclusionary

rule would have no deterrent

effect on the police, which is the

objective of the rule.

CASE IN BRIEF

Herring v. United States (2009)

ISSUE Does the exclusion- ary rule apply when a negligent

police error leads to evidence

used against a defendant?

RULING No. The culpability of the officer should be evaluated

along with the deterrent effect of

the rule in the particular situation.

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228 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

line of reasoning, looking at the culpability of the officer and what deterrent effect

the exclusionary rule would have had in a situation. In Davis v. United States (2011), the Court ruled on a case involving a search of a car incident to arrest. Between the

time of Davis’s 2007 arrest and conviction, and then his appeal in 2010, the law sur-

rounding these searches changed via Arizona v. Gant (2009), a case in which the Court refused to apply the exclusionary rule to a situation in which the officers had

followed existing law at the time. The application of the rule in this situation would

not deter unconstitutional police conduct, and the actions were not deliberate,

grossly negligent, or reckless. The Court’s determination in Gant was that the “harsh sanction” of excluding valuable evidence and subsequent societal costs out-

weighed any deterrent value.

Internal Sanctions, Civil Liability, and Criminal Liability

Government wrongdoing can seldom be excused, and severe consequences may

result, in addition to having evidence excluded.

Administrative liabilities, civil liabilities, and criminal liabilities can be incurred

at the local, state, or federal level, as summarized in Table 7.1.

Lawsuits against police are an occupational hazard (del Carmen, 2010). U.S.

society is litigious (prone to suing), and the police are an attractive target because

they wield power and are public employees. Widespread public perception that the

government has deep pockets can entice some people to pursue legal action when

they might not otherwise. Furthermore, if a civil liability suit against the govern-

ment is won, the plaintiff’s lawyer’s fees are paid by the defendant, making this

avenue of litigation attractive for attorneys as well. Because the entire agency or

litigious a tendency toward suing; a belief that most

controversies or injurious acts, no

matter how minor, should be

settled in court

Government misconduct could res ult in departmental discipline against an offi cer, civil lawsuits, and criminal charges .

Table 7.1 Administrative, Civil, and Criminal Liability

Federal law State law

Civil liabilities Title 42 of U.S. Code, Section 1983—Civil Action for

Deprivation of Civil Rights

State tort law

Title 42 of U.S. Code, Section 1985—Conspiracy to Interfere

with Civil Rights

Title 42 of U.S. Code, Section 1931—Equal Rights under

the Law

Criminal liabilities Title 18 of U.S. Code, Section 242—Criminal Liability for

Deprivation of Civil Rights

State penal code provisions specifically aimed at public

officers for crimes like these:

Title 18 of U.S. Code, Section 241—Criminal Liability for

Conspiracy to Deprive a Person of Rights

Official oppression

Title 18 of U.S. Code, Section 246—Violations of Federally

Protected Activities

Official misconduct

Violation of the civil rights of prisoners

Regular penal code provisions punishing such criminal acts

as assault, battery, false arrest, serious bodily injury and

homicide

Administration liabilities Federal agency rules or guidelines vary from one agency to

another

Agency rules or guidelines at the state or local levels vary

from one agency to another

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 229

department or the entire jurisdiction can be sued, some awards are enormous. Con-

sider the following examples:

■ “U.S. to pay $2 million in Wrongful Terror Attack” ■ “66 Bullets Costs County $13 million” ■ “New York Will Pay $50 Million in 50,000 Illegal Strip Searches” ■ “The City of Los Angeles Agreed to Pay $15 Million to a Man Who Said Police

Officers Shot Him in the Head and Chest and Then Framed Him in the

Attack” ■ “Jury Assesses Damages of $256 Million for Motorist’s Collision with Off-Duty

Police Officer That Left One Child Dead, One Quadriplegic and One Para-

lyzed on One Side with a Damaged Brain” ■ “Chicago Reaches $18-Million Settlement with Family of Unarmed Woman

Shot and Killed by Officer at the Conclusion of an 81-Block Pursuit of the

Vehicle in Which She Was Riding” (del Carmen, 2010, pp. 444–445).

As in a number of other areas of developing law, issues relating to law enforce-

ment liability will continue to receive attention in the media and the courts. Stu-

dents and practitioners of the law stay current on these issues.

A Final Consideration: When State Law Conflicts with Constitutional Law Several cases have examined what happens when state law restrictions exceed the

constitutional standard of lawful arrest based on probable cause. In Atwater v. City of Lago Vista (2001), the Supreme Court ruled that for federal civil liability purposes and to determine admissibility of evidence under the Fourth Amend-

ment exclusionary rule, state restrictions do not prevail over constitutional stan-

dards (Rutledge, 2008, p. 66). In this case, Gail Atwater was stopped because

neither she nor her two children in the front seat were wearing seat belts, in viola-

tion of Texas law. The maximum penalty for the offense was a $50 fine. The officer,

however, had previously warned her about the violation, so he stopped her truck

and arrested her on a misdemeanor. She was transported to the police station and

mug shots were taken. Then she was taken before a magistrate, posted bail, and

was released.

Atwater filed a federal civil rights suit against the officer and the city claiming

that her Fourth Amendment rights had been violated. After lower courts dismissed

her suit, she appealed to the U.S. Supreme Court, which affirmed the dismissal,

stating, “If an officer has probable cause to believe that an individual has commit-

ted even a very minor criminal offense in his presence, he may, without violating

the Fourth Amendment, arrest the offender.”

In Virginia v. Moore (2008), the court broadened police search authority by allow- ing drug evidence gathered after an arrest that violated state law to be used at trial,

“an important search-and-seizure case turning on the constitutional limits of ‘prob-

able cause’” (Mears, 2008). In this case, police stopped David Lee Moore for driving

his vehicle on a suspended license, a misdemeanor offense. Under Virginia law, the

protocol for such incidents was to issue only a citation and a summons to appear in

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230 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

court and then to release the driver. But in this case, the officers arrested Moore and

searched him, finding cocaine. Moore was tried on drug charges and convicted. He

appealed, arguing that the evidence was obtained in violation of state law, reason-

ing that the responding officers should have issued a citation under state law, and

the Fourth Amendment does not permit search incident to citation. The Supreme

Court, however, disagreed with Moore and unanimously upheld the actions of the

officers, with Justice Antonin Scalia stating, “The arrest rules that the officers vio-

lated were those of state law alone. It is not the province of the Fourth Amendment

to enforce state law.”

The Court asserted that if Fourth Amendment protections were linked to state

law, the law would “vary from place to place and from time to time” causing confu-

sion. Although states can regulate arrests as they desire, their various restrictions

do not alter the traditional Fourth Amendment protection:

In a long line of cases, we have said that when an officer has probable cause to

believe a person committed even a minor crime in his presence, the balancing

of private and public interests is not in doubt. The arrest is constitutionally

reasonable. . . .

States, we said, remained free “to impose higher standards on searches and

seizures than required by the Federal Constitution,” but regardless of state

rules, police could search a lawfully seized vehicle as a matter of federal consti-

tutional law. . . .

State arrest restrictions are more accurately characterized as showing that

the State values its interests in forgoing arrests more highly than its interests in

making them, . . . or as showing that the State places a higher premium on pri-

vacy than the Fourth Amendment requires. A State is free to prefer one search-

and-seizure policy among the range of constitutionally permissible options, but

its choice of a more restrictive option does not render the less restrictive ones

unreasonable, and hence unconstitutional. . . .

We conclude that warrantless arrests for crimes committed in the presence of

an arresting officer are reasonable under the Constitution, and that while States

are free to regulate such arrests however they desire, state restrictions do not

alter the Fourth Amendment’s protections. (Virginia v. Moore, 2008)

This ruling, in effect, confirmed that as long as probable cause exists to arrest,

search incident to arrest is reasonable.

CASE IN BRIEF

Virginia v. Moore (2008)

ISSUE Does the Fourth Amendment prohibit the use of

evidence resulting from an arrest

based on probable cause but in

violation of state law?

RULING No. The Fourth Amendment’s protections are

not changed by state laws. If that

were the case, the Constitution

would vary from place to place

and time to time. Note that had

this case been challenged in

state court based solely on state

law (and not the federal Constitu-

tion), the outcome might have

been different.

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Chapter 7 The Fourth Amendment: An Overview of Constitutional Searches and Seizures 231

Discussion Questions

Summary

1. Explain why the Fourth Amendment applies to the federal government and to state, county, and municipal governments.

2. Explain the meaning of search and seizure.

3. How does a stop differ from an arrest?

4. How does a frisk differ from a search?

5. At what point does a stop and frisk develop into a search and seizure?

6. What restrictions does the Fourth Amendment put on private security guards, such as store detectives or private investigators?

7. Explain why people might sue when they feel their rights have been violated. Is there something that makes it so attractive to sue law enforcement? Keep in mind the deep pockets theory.

8. Should a case be dismissed because the one piece of evidence that would surely prove the defendant was guilty was not admitted because of a police error in obtaining it?

9. To protect the public, can government ever really go “too far”?

10. Why should a government agent try to get a warrant whenever possible?

The Fourth Amendment forbids unreasonable

searches and seizures and requires that any search or

arrest warrant be based on probable cause. If a per-

son is an employee of any governmental agency or is

an agent of the government in any capacity, that per-

son is bound by the Fourth Amendment. The Fourth

Amendment does not apply to private parties.

The reasonableness clause of the Fourth Amend-

ment makes warrantless searches and seizures valid

and constitutional when they are sensible. The Con-

stitution does not provide an absolute right to be free

from government intrusion, only unreasonable interference.

Probable cause determines when officers may

execute lawful searches and arrests, with or, in some

cases, without a warrant. Probable cause to search means officers reasonably believe that evidence, con-

traband, or other items sought are where police

believe these items to be. Probable cause to arrest means officers reasonably believe that a crime has been com-

mitted by the person they seek to arrest. All warrants

are to be based on probable cause. When executing a

search or arrest warrant, the common law rule is that

for an entry into a home to be constitutional, police

must first knock and identify themselves and their

purpose—the knock-and-announce rule.

A stop is a brief detention of a person based on

specific and articulable facts for the purpose of inves-

tigating suspicious activity. A frisk is a limited pat-

down search for weapons for the protection of the

government agent and others. It is not automatically

permitted with a stop, but only when the agent sus-

pects the person is armed and dangerous. The law of

stop and frisk deals with that time frame during

which officers follow up on their suspicions but before

the time that the requisite probable cause is estab-

lished to justify an arrest (Terry v. Ohio, 1968). The Terry decision established that, in what is termed a Terry stop, an officer with articulable reasonable suspicion

that a crime is occurring, has occurred, or is about to

occur, may conduct a brief investigatory stop, includ-

ing a pat down for weapons if the officer has reason to

suspect the person is armed and dangerous.

An unlawful search or seizure can have two seri-

ous consequences: (1) the evidence may be excluded

from court and (2) internal sanctions as well as civil

and criminal liability may be incurred. The exclu-

sionary rule is judge-made case law promulgated by

the Supreme Court to deter police misconduct. It

prohibits evidence obtained in violation of a person’s

constitutional rights from being admissible in court

(Weeks v. United States). The primary purpose under- lying the exclusionary rule is deterring government

misconduct. Mapp v. Ohio made the exclusionary rule applicable at the state level. Evidence obtained in

ways that shock the conscience will not be admissible in court. Among the exceptions to the exclusionary

rule are the inevitable discovery doctrine, existence

of a valid independent source, harmless error, and

good faith. Government misconduct could also result

in departmental discipline against an officer, civil

lawsuits, and criminal charges.

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232 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

References del Carmen, Rolando V. Criminal Procedure: Law and

Practice, 7th ed. Belmont, CA: Wadsworth Publishing Company, 2010.

Glennon, Jim. “Intuition on the Street.” PoliceOne.com News, January 15, 2008. Retrieved May 31, 2013, from www.policeone.com/pc_print .asp?vid=1647830.

Hall, Jerome. “Objectives of Federal Criminal Rules Revision.” Yale Law Journal, Vol. 51, 1942, p. 725.

Maslow, Abraham H. Motivation and Personality. New York: Harper & Row, 1954.

Means, Randy, and McDonald, Pam. “A Trifecta: Computer Error, Qualified Immunity, Passenger Frisks.” Law and Order, April 2009, pp. 24–25.

Mears, Bill. “Supreme Court Broadens Police Searches.” CNN, April 23, 2008. Retrieved May 31, 2013, from www.cnn.com/2008/CRIME/04/23/ scotus.searches/index.html.

Rutledge, Devallis. “Fourth Amendment Supremacy.” Police, June 2008, pp. 66–70.

Rutledge, Devallis. “The ‘Independent Source’ Doctrine.” Police, July 2010, pp. 134–137.

Wilson, Bradford P. Exclusionary Rule. (NCJ 100738.) Washington, DC: National Institute of Justice, Crime File Study Guide, 1986.

Cases Cited Aguilar v. Texas, 378 U.S. 108 (1964) Arizona v. Evans, 514 U.S. 1 (1995) Arizona v. Fulminante, 499 U.S. 279 (1991) Arizona v. Gant, 556 U.S. _____ (2009) Atwater v. City of Lago Vista, 532 U.S. 318 (2001) Beck v. Ohio, 379 U.S. 89 (1964) Boyd v. United States, 116 U.S. 616 (1886) Brewer v. Williams, 430 U.S. 387 (1977) Brinegar v. United States, 338 U.S. 160 (1949) Brown v. Illinois, 422 U.S. 590 (1975) Cass v. State, 124 Tex. Crim. 208, 61 S.W.2d 500 (1933) Chapman v. California, 386 U.S. 18 (1967) Davis v. United States, 131 S.Ct. 2419, 564 U.S. ____ (2011) Draper v. United States, 358 U.S. 307 (1959) Elkins v. United States, 364 U.S. 206 (1960) Harrington v. California, 395 U.S. 250 (1969) Herring v United States, 555 U.S. ___ (2009) Hudson v. Michigan, 547 U.S. 586 (2006) Illinois v. Gates, 462 U.S. 213 (1983) Illinois v. McArthur, 531 U.S. 326 (2001) Illinois v. Rodriguez, 497 U.S. 177 (1990) Illinois v. Wardlow, 528 U.S. 119 (2000) Locke v. United States, 11 U.S. (7 Cranch) 339 (1813) Mapp v. Ohio, 367 U.S. 643 (1961) Maryland v. Garrison, 480 U.S. 79 (1987) Massachusetts v. Sheppard, 468 U.S. 981 (1984) Michigan v. Summers, 452 U.S. 692 (1981) Miller v. United States, 357 U.S. 301 (1958) Murray v. United States, 487 U.S. 533 (1988) Nix v. Williams, 467 U.S. 431 (1984) Public Service Comm’n v. Havemeyer, 296 U.S. 506 (1936) Rawlings v. Kentucky, 448 U.S. 98 (1980) Richards v. Wisconsin, 520 U.S. 385 (1997) Rochin v. California, 342 U.S. 165 (1952)

Segura v. United States, 468 U.S. 796 (1984) Shadwick v. City of Tampa, 407 U.S. 345 (1972) Silverthorne Lumber Co. v. United States, 251 U.S. 385

(1920) Smith v. United States, 337 U.S. 137 (1949) Spinelli v. United States, 393 U.S. 410 (1969) State v. Heald, 307 A.2d 188 (Me. 1973) State v. Mimmovich, 284 A.2d 282 (Me. 1971) Stone v. Powell, 428 U.S. 465 (1976) Sussex Land & Live Stock Co. v. Midwest Refining Co., 294

F. 597 (8th Cir. Wyo. 1923) Taylor v. Alabama, 457 U.S. 687 (1982) Terry v. Ohio, 392 U.S. 1 (1968) United States v. Anderson, 676 F. Supp. 604

(E.D. Pa. 1987) United States v. Arvizu, 534 U.S. 266 (2002) United States v. Banks, 540 U.S. 31 (2003) United States v. Calandra, 414 U.S. 338 (1974) United States v. Cleaveland, 38 F.3d 1092 (9th Cir. 1994) United States v. Di Re, 332 U.S. 581 (1948) United States v. Ingrao, 897 F.2d 860 (7th Cir. 1990) United States v. Jacobsen, 466 U.S. 109 (1984) United States v. Knights, 534 U.S. 112 (2001) United States v. Leon, 468 U.S. 897 (1984) United States v. McCarty, 862 F.2d 143 (7th Cir. 1988) United States v. Parker, 32 F.3d 395 (8th Cir. 1994) United States v. Ross, 456 U.S. 798 (1982) United States v. Sokolow, 490 U.S. 1 (1989) United States v. Walther, 652 F.2d 788 (9th Cir. 1981) Virginia v. Moore, 553 U.S. ___ (2008) Weeks v. United States, 232 U.S. 383 (1914) Wilson v. Arkansas, 514 U.S. 927 (1995) Wolf v. Colorado, 338 U.S. 25 (1949) Wong Sun v. United States, 371 U.S. 471 (1963)

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233

Being arrested is the ultimate governmental seizure. However, the mere fact that someone is handcuffed

and momentarily detained does not necessarily mean an arrest has occurred, although a seizure has

occurred. Here Los Angeles police officers hold a man after a search for a shooting suspect in the

Angelino Heights neighborhood near downtown on the evening of December 6, 2010. The three-hour-

long manhunt left residents locked in their homes and schools as an Los Angeles Police Department

helicopter buzzed overhead and heavily armed officers searched streets and homes. One man was

eventually arrested.

The Constitution does not guarantee that only the guilty will be arres ted. If it did, §1983 would provide a cause of action for every defendant acquitt ed—indeed, for every suspect released.

—U.S. Supreme Court (Baker v. McCollan, 1979)

Conducting Constitutional Seizures

CHAPTER 8

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234 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Do You Know . . .

Can You Define? arrest

citizen’s arrest

de facto arrest

fresh pursuit

functional equivalent

hot pursuit

pretext stop

■ What the elements of a seizure are?

■ Whether a seizure always constitutes an arrest, or vice versa?

■ Whether a stop constitutes an arrest?

■ What factors determine how long a stop may last?

■ When vehicles can be stopped?

■ Whether Miranda must be given during a traffic stop? ■ How arrest is usually defined? ■ When an arrest can legally be made?

■ Where arrests can be made?

■ How much force can be used in making an arrest?

■ When use of a TASER® might be considered unreasonable and an

excessive use of force?

■ What the only justification for use of deadly force is?

■ Who has immunity from arrests?

Introduction Chapter 7 discussed how the Fourth Amendment influences searches and seizures.

The Fourth Amendment’s prohibition of unreasonable searches and seizures applies

to people, places, and things. The law of seizures refers to government’s taking

physical control of people or property, and it applies to both stops and arrests.

In Mendenhall v. United States (1980), the Supreme Court held “that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all

the circumstances surrounding the incident, a reasonable person would have

believed that he was not free to leave.” The Mendenhall test provides that a seizure involves more than just the police’s intention to seize; it also must include the objec-

tive aspect in which a reasonable person would believe that, under such circum-

stances, they were not free to terminate the encounter and leave as well.

Nearly a decade later the Court defined the “seizure” of a person as “govern-

mental interference with a person’s freedom of movement through means inten-

tionally applied” (Brower v. County of Inyo, 1989). Shortly thereafter, in California v. Hodari D. (1991), the Court held that a person is not considered seized until he or she submits or is physically forced to submit. Hodari is important because under federal law, a seizure (arrest or stop) is not made unless the object of the seizure is

actually brought under physical control by the officers or the object submits to

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Chapter 8 Conducting Constitutional Seizures 235

control. Although this is a requirement under the Constitution, some states do not

require that a person submit to or be in the physical control of an officer to be con-

sidered “seized.”

Taken together, these cases set forth the four elements to any seizure: intending

to seize the object (Brower), exercising the authority to do so (Brower), physically controlling the object of the seizure or the object submitting (Hodari), and the objec- tive understanding of what is occurring such that a reasonable person would not

feel free to leave (Mendenhall). In this chapter, we address when and how police can seize

people and how the Fourth Amendment relates to the seizure of

property. This topic will be further discussed in Chapter 9, which

specifically addresses searches

This chapter looks at the requirements for the ultimate seizure,

a lawful arrest. Perhaps one of the most intrusive and powerful of

all government actions is the actual taking into physical custody,

or the arresting, of an individual. The police have this unique

power, which sets them apart from all other professions. The Con-

stitution seeks to control this power through both a variety of

rules and the courts. Although an area of extreme concern for

champions of the Constitution, the necessity for the power to

arrest is recognized as a power government requires. Recall the “continuum of

contacts” discussed in Chapter 7, going from minimal interference through a stop

to maximum interference through arrest.

This chapter begins with a look at the intensity and scope of a seizure, how those

two elements combine to transform a stop into an arrest, and the constitutional

limits to investigatory stops. The remainder of the chapter focuses on the subset of

seizures called arrests, beginning with some definitions of arrest and a look at when and where arrests may generally be lawfully made. This is followed by an examina-

tion of de facto arrests, a review of the knock-and-announce rule, a brief discussion

of the community caretaking doctrine, and how events can escalate into an arrest.

Next, issues arising from an arrest are examined, including pursuit and the use of

force. The chapter concludes with a brief discussion of citizen’s arrest, the rights of

those in custody, and who is immune from arrest in this country.

Intensity and Scope of a Seizure: Stop and Arrest Compared Law enforcement involves decisions and discretion. Police officers are charged with

investigating suspicious circumstances and have constitutional authority to stop

people to investigate even before police can lawfully arrest anyone. What begins as

a simple stop of a person merely to investigate the possibility of crime may progress

to a frisk and then to an arrest and full-body search, as discussed in Chapter 7.

Recall the definition of a stop given in Chapter 7: a brief detention of a person based on specific and articulable facts for the purpose of investigating suspicious

activity. During a stop, the infringement on a person’s liberty is temporary, and

although the suspect is not free to go just then, without the investigation produc-

ing anything more, he or she will be free to go shortly. The term detention is often

The elements of a seizure are (1) intending to seize an object (including a person), (2) exercising authority to do so, (3) physically controlling the object , and (4) the understanding of wh at is happ ening such that a reasonable person would not feel fr ee to leave.

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236 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

used in place of stop, but they are the same thing; they both refer to a seizure that

must be justified by reasonable suspicion (RS) of criminal activity on the part of the detainee. Under this standard, it is incorrect for officers to speak of having “PC for

the stop,” because probable cause (PC) is never constitutionally required for a stop (United States v. Sokolow, 1989). Probable cause is the constitutional requirement for arrest.

Thus, the level of suspicion or proof (i.e., reasonable suspicion or probable

cause) will dictate what an officer can and cannot do at a given point. The determi-

nation of at what point in time the seizure occurs is important because it sets in

motion the protections of the Constitution, with respect to either reasonable suspi-

cion or probable cause. No seizure, no Fourth Amendment requirements.

A stop, therefore, is quite different from an arrest, but both are seizures regulated by the Fourth Amendment. The intensity and scope of the seizure transforms a stop

into an arrest. Thought of another way, an arrest is always a seizure, but a seizure

is not always an arrest (it could be a stop).

The basic differences between a stop and an arrest are summarized in Table 8.1.

Keep these basic differences in mind as you read this chapter.

A seizure need not nec ess arily be an arres t, but all arres ts are seizures .

Table 8.1 Stop versus Arrest

Stop Arrest

Justification Reasonable suspicion Probable cause

Warrant None Preferable

Officer’s intent Investigate suspicious activity Make a formal charge

Search Pat down for weapons Full search for weapons and evidence

Scope Outer clothing Area within suspect’s immediate control

Record Minimal (field notes) Fingerprints, photographs, and booking

Billy is crossing the street just as a marked squad

car stops at the intersection for a stop sign. The

officers look at Billy, who panics. Billy turns and

runs the other way, down the street. As he is run-

ning, he drops a handgun. The officers see this and

now give chase. They order Billy to stop over the

squad’s PA, but he continues to run. Billy trips and

falls in a yard a few blocks away, and the officers

catch up to him and handcuff him. They retrieve

the gun Billy dropped and find out Billy does not

have a permit to carry it. They arrest Billy.

■ Does it matter if Billy believes he is not free to leave at the point when the officers look at him as he crosses the street?

■ In Billy’s position, how would you feel?

■ At what point is Billy seized under the Fourth Amendment?

■ Why is it important to determine at what point in time Billy was seized?

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Chapter 8 Conducting Constitutional Seizures 237

Investigatory Stops Determining whether the interaction with police constitutes a stop or arrest is cru-

cial because how police proceed with seizing property will determine whether it

will be admissible as evidence or excluded. The analysis of

whether a search of the person and possible seizure of property is

constitutional begins with the determination of whether the inter-

vention by police is considered a lawful stop or an arrest. To those uninformed about the law, these words may seem synonymous; to

the criminal justice system, the differences are critical.

Establishing Reasonable Suspicion

For an investigatory stop to be constitutional, the officer must have

articulable reasonable suspicion of criminal activity. In other

words, the officer has to be able to explain in detail, or articulate, what specifically

was suspicious. Using the totality of the circumstances test, officers must have a

particularized and objective basis for suspecting the person stopped (United States v. Cortez, 1981). In Cortez, the Court described reasonable suspicion this way:

The totality of the circumstances—the whole picture—must be taken into

account. Based upon that whole picture the detaining officers must have a par-

ticularized and objective basis for suspecting the particular person stopped of

criminal activity. . . . The analysis proceeds with various objective observations,

information from police reports, if such are available, and consideration of the

modes or patterns of operation of certain kinds of lawbreakers. From these data,

a trained officer draws inferences and makes deductions—inferences and deduc-

tions that might well elude an untrained person. This process does not deal with

hard certainties, but with probabilities. Long before the law of probabilities was

articulated as such, practical people formulated certain common-sense conclu-

sions about human behavior; jurors as fact-finders are permitted to do the

same—and so are law enforcement officers.

In United States v. Hensley (1985), the Court held that the existence of a wanted poster or flyer provided sufficient reasonable suspicion for the police to stop a per-

son, stating, “In an era when criminal suspects are increasingly mobile and increas-

ingly likely to flee across jurisdiction boundaries, this rule is a matter of common

sense: It minimizes the volume of information concerning suspects that must be

transmitted to other jurisdictions and enables police in one jurisdiction to act

promptly in reliance on information from another jurisdiction.”

Although the standard is less than probable cause, it must be more than a mere

hunch or even a general suspicion and cannot be a “fishing expedition” based on a

whim or a “gut feeling things were really wrong” (United States v. Pavelski, 1986). Case law has continued to develop this area of criminal procedure.

Informants and Anonymous Tips In Adams v. Williams (1972), the Court held that information from an informant, and not just personal observation by an officer,

may establish the requisite suspicion to make a stop:

The Fourth Amendment does not require a policeman who lacks the precise

level of information necessary for probable cause to arrest to simply shrug his

The Terry case es tablished that the authority to stop is independent of the power to arres t. A stop is not an arres t, but it is a seizure within the meaning of the Fourth Amendment and, therefore, requires reasonableness .

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238 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

shoulders and allow a crime to occur or a criminal to escape. On the contrary,

Terry recognized that it may be the essence of good police work to adopt an intermediate response.

However, an anonymous tip, with nothing else, has been held to lack sufficient

reliability to establish the reasonable suspicion for a Terry stop, given the totality of the circumstances. In Florida v. J.L. (2000), the Court held that an anonymous call telling police that young Black male wearing certain clothing at a bus stop had a

gun was not enough to be considered reasonable suspicion, and the gun the police

found on him was held inadmissible because it was the fruit of an illegal search.

This case differs from Terry because suspicion did not arise from an officer’s personal observations but from an anonymous source. The reasoning here is to

discourage anonymous calls motivated by either grudges or as some sort of joke.

Officers must make an effort to assess anything else that would lead to reasonable

suspicion. This requirement does not mean the officer cannot stop and talk to the

suspect, but without more, the stop would be limited to that.

Courts in several states have upheld vehicle stops based on anonymous tips

that the driver of a vehicle is drunk. In some jurisdictions, courts have relied on J.L. to find that certain vehicle stops of suspected drunk drivers are reasonable, even

though the officer does not observe erratic driving when the reported vehicle is

located. These courts based their reasoning on a combination of the following fac-

tors: (1) the dangers inherent in drunk driving, which kills more than 10,000 people

annually, (2) detailed descriptions of the vehicle and driving provided by an eye-

witness, (3) the fact that traffic stops are more common and less invasive than

pedestrian stops, and (4) the reduced expectation of privacy of motorists driving on

public roadways (Rutledge, 2010).

Other jurisdictions have taken the position that the ruling in J.L. is absolute, applying to every detention made on the basis of an uncorroborated anonymous tip

of erratic driving, finding no difference between an anonymous tip of erratic driv-

ing and an anonymous tip that a person is carrying a firearm (Rutledge, 2010). This

was the finding in Harris v. Commonwealth (2008). In December 2005, police officer Claude Picard of Richmond, Virginia, received a call from dispatch regarding an

anonymous tip of a green Nissan Altima driving erratically heading south. The

caller also provided a partial license number. Officer Picard responded, saw a green

Altima with a license plate number similar to the one reported by the anonymous

caller, and followed the car, observing that the driver (Harris) was staying within

the posted speed limit and did not swerve at any time. However, Picard did notice

the Altima’s brake lights flash three times without a clear reason for the driver to

be slowing. The driver stopped of his own accord on the side of the road and acti-

vated his emergency lights. Picard stopped to investigate.

During the traffic stop, the officer detected a strong odor of alcohol on the

driver’s breath. Harris’s eyes were watery, and his speech was slurred. The officer

arrested Harris, who was charged with feloniously operating a motor vehicle while

under the influence of alcohol. (Incidentally, Harris had been convicted twice previ-

ously of similar charges.) Harris filed a motion to suppress, claiming the officer

lacked sufficient probable cause to conduct the investigatory stop, but the circuit

court denied the motion, and Harris was convicted. Harris appealed the conviction

to the Virginia Court of Appeals, which affirmed the conviction. The Virginia

CASE IN BRIEF

Florida v. J.L. (2000)

ISSUE Is an anonymous tip that a person is carrying a

gun illegally, without any more

information, enough to establish

reasonable suspicion to stop and

frisk the person?

RULING No. Officers must have additional facts that support

the tip because the anonymous

information lacked reliability.

Officers should use the tip as a

starting point and make addi-

tional observations to establish

reasonable suspicion.

MYTH The police can take tips at face

value and act on them.

REALITY No, officers need to corroborate

information to eliminate the

specter of jokes or grudges and

base their actions on facts.

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Chapter 8 Conducting Constitutional Seizures 239

Supreme Court, however, determined that the circuit court should have, in fact,

granted Harris’s motion to suppress because of the officer’s observations, ruling

An officer may briefly detain an individual for questioning if the officer has a

reasonable suspicion, based on particularized and objective facts, that the indi-

vidual is involved in criminal activity. To establish reasonable suspicion, an

officer is required to articulate more than an unparticularized suspicion or

“hunch” that criminal activity is afoot. Lawful conduct that the officer may sub-

jectively view as unusual is insufficient to generate a reasonable suspicion that

the individual is involved in criminal activity.

When viewed in the context of the anonymous tip, Harris’s act of slowing his

car at an intersection, or of slowing before stopping at a red traffic signal, did not

indicate that he was involved in the criminal act of operating a motor vehicle

under the influence of alcohol. Driving to the side of the road and stopping may

be subjectively viewed as unusual, but that conduct was insufficient to corroborate

the criminal activity alleged in the anonymous tip. Therefore, we hold that Officer

Picard’s observations, when considered together with the anonymous tip, were

not sufficient to create a reasonable suspicion of criminal activity, and that, there-

fore, Harris was stopped in violation of his rights under the Fourth Amendment.

Thus, the circuit court erred in denying Harris’s motion to suppress. Accordingly,

we will reverse the judgment of the Court of Appeals affirming Harris’s convic-

tion, vacate Harris’s conviction, and dismiss the indictment against him.

Reversed, vacated, and dismissed.

The importance of this case lies in recognizing that different state courts have ruled

differently on how they treat anonymous tips with respect to forming reasonable

suspicion. Until the Supreme Court resolves the conflicting rulings regarding

anonymous tips regarding suspected drunk drivers, it is imperative that officers

know how their state’s supreme court has ruled.

Flight from Police In Illinois v. Wardlow (2000), the Supreme Court addressed the issue of flight as justification for seizure, determining that reasonable suspicion to

chase is not automatic when people run. In this case, officers observed William “Sam” Wardlow standing on the sidewalk of an area known for heavy narcotics traf-

ficking, holding an opaque bag. When Wardlow saw the police, he immediately fled.

Officers gave chase, caught Wardlow, and conducted a frisk for weapons based on

their experience that weapons were commonly present during drug deals. A loaded

gun was found in the bag, and Wardlow was arrested for a weapons violation.

Wardlow moved to suppress the weapon, arguing the stop and frisk were

unreasonable under the Fourth Amendment. Several appeals eventually brought

the case before the Illinois Supreme Court, which viewed Wardlow’s flight as noth-

ing more than a refusal to agree to a voluntary conversation, ruling no inference of

reasonable suspicion could be drawn from such action, even in a high narcotics-

traffic area. The case was appealed to the U.S. Supreme Court, which ruled that

Wardlow’s presence in a high-crime area was a relevant fact that officers could consider in deciding whether they had reasonable suspicion that Wardlow was

involved in criminal activity. It also held that unexplained flight, on noticing the

police, is a pertinent factor in determining whether reasonable suspicion exists.

Justice William H. Rehnquist noted, “Headlong flight—wherever it occurs—is the

MYTH Simply running at the sight of

police will not give an officer a legal

basis to stop and question you.

REALITY True. But when combined with other

facts, there may be enough reason-

able suspicion to legally stop you.

CASE IN BRIEF

Illinois v. Wardlow (2000)

ISSUE Does a person’s unpro- voked flight away from police offi-

cers, while in a high-crime area,

establish reasonable suspicion to

stop the person?

RULING Yes. Taken in isola- tion, a person’s mere presence in

a high-crime area is insufficient

to support a stop. However, when

combined with other facts, such

as the unprovoked flight at the

sight of police officers, it will

establish reasonable suspicion to

stop the person.

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240 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is

certainly suggestive of such.”

Although running away itself may not be enough to cause reasonable suspicion,

it is a relevant factor overall. As was the case in Wardlow and other cases, additional factors contribute to the totality of the circumstances. Merely refusing to talk to the

police, as held in Florida v. Royer (1983), is not unlawful behavior, either.

Length of the Stop

Royer also addressed how long a person may be detained: “An investigative deten- tion must be temporary and last no longer than is necessary to effectuate the pur-

pose of the stop. Similarly, the investigative methods employed should be the least

intrusive means reasonably available to verify or dispel the officer’s suspicion in a

short period of time.”

This issue was also considered in United States v. Sharpe (1985): “In assessing whether a detention is too long in duration to be justified as an investigative

stop, we consider it appropriate to examine whether the police diligently pur-

sued a means of investigation that was likely to confirm or dispel their suspi-

cions quickly. . . . The question is not simply whether some other alternative was

available, but whether the police acted unreasonably in failing to recognize or

pursue it.”

In this case, the stop took some 20 minutes. The Court held no rigid specific time

limit applied, but rather, considerations factored into what a reasonable amount of

time would be are (1) the purpose of the stop, (2) the reasonableness of the time

used for the investigation that the officers wish to conduct, and (3) the

Jessie waves to Officer Taylor and asks to speak

with him, telling the officer that he saw the driver

of a blue, older minivan driving while drinking out

of a bottle of beer at the corner of 1st Street and

Main a few minutes ago. Jessie remembers only the

first three digits of the license plate—456. Jessie

also adds that the driver was a middle-aged White

female. Furthermore, Jessie gives the officer his full

name and telephone number in case he needs any-

thing further.

Officer Taylor goes to the area of 1st and Main

to look for the minivan and sees what he thinks to

be the one Jessie described pull out of the parking

lot of the liquor store. Officer Taylor sees the driver

is a White middle-aged female and the license

plate starts with 456.

After the minivan pulls out on the street, Officer

Taylor pulls behind it and signals it to stop. The

driver pulls the minivan to the curb and parks. Offi-

cer Taylor walks to the driver’s window and asks

the driver for her license. Officer Taylor observes

two open bottles of beer sitting in cup holders, that

the driver has bloodshot and watery eyes, and that

her breath smells of alcohol. The driver is arrested

for DWI and having an open bottle of beer in the car.

■ How is this situation different from J.L?

■ What objective facts does the officer have to sup- port an investigatory stop of the car and driver?

■ Do you think these facts establish reasonable suspicion?

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Chapter 8 Conducting Constitutional Seizures 241

reasonableness of the means of investigation used by the officer.

Because the detention is allowable, although for only a brief

period, reasonable force to stop and detain the suspect is also

permissible.

Means and McDonald (2009, p. 24) suggest, “A rule of

thumb might be that the duration of an investigative detention

should normally be measured in minutes, not hours—though in

a serious case where circumstances required it, 75 minutes

might be reasonable.”

Protective Actions during Stops

Situations may arise in which an officer does not have probable cause to arrest, but

the circumstances dictate that the detainee be handcuffed or put in the back seat

of a squad car. “Terry allows officers to take all necessary steps to protect them- selves if the circumstances reasonably warrant such measures” (Scarry, 2009,

p. 28). Officers may take several protective actions without turning a stop into an

arrest. For example, if the circumstances warrant, officers may draw their weap-

ons, have a reasonable number of backup officers, handcuff individuals, or place

them in the back of a squad car without turning the detention into an arrest. If a

savvy defense lawyer asserts that any of the preceding actions transforms a Terry stop into an arrest, the appropriate officer response is that although the defense’s

client was not free to go, the client was being detained in such a manner for officer

safety reasons while a reasonable investigation into criminal activity was con-

ducted (Scarry, 2009).

A frisk may be an allowable protective action during an investigatory stop,

depending on the circumstances. Recall from Chapter 7 that a frisk is a limited pat-

down search for weapons for the protection of the government agent and others.

The phrase “stop and frisk,” as authorized by Terry, links the two actions and describes both a seizure and a search, each of which must be justified. The stop is justified if there is a reasonable suspicion the person is involved in criminal activity;

the frisk is justified if there is a reasonable suspicion the detainee may be armed and dangerous.

An officer might have justification for a stop but not for a frisk. For example, if

an officer stops a person based on reasonable suspicion that the person was recently

involved in an act of indecent exposure, the stop would be justified, but a frisk

would likely not be (Rutledge, 2009).

The Controversy over Pedestrian Stops

“Police in major U.S. cities stop and question more than a million people each

year—a sharply higher number than just a few years ago. Most are Black and His-

panic men. Most are frisked, and nearly all are innocent of any crime, according to

figures gathered by the Associated Press. And the numbers are rising at the same

time crime rates are falling” (Long, 2009).

Civil liberties advocates say the stop-and-frisk practice is racist and does not

deter crime. Herbert (2010) says the practice has gotten completely out of control,

citing statistics from the New York Police Department from 2004 to 2009 when offi-

cers stopped pedestrians nearly 3 million times, frisking and otherwise humiliating

How long a stop may last depends on factors that indicate the suspect was not det ained an unreasonably long time, including the purpose of the stop and the time and means the inves tigation required.

MYTH If the police put handcuffs on you,

you are “arrested.”

REALITY Not necessarily. They are many

factors that come into play when

determining if a person is arrested

or not, and being placed in hand-

cuffs is just one of them.

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242 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

many of them. More than 90 percent of those stopped and frisked were completely

innocent: “Not only are most of the people innocent, but a vast majority are either

Black or Hispanic. There is no defense for this policy. It’s a gruesome, racist practice

that should offend all New Yorkers, and it should cease.”

Many police departments, on the other hand, maintain such stops are a valuable

tool that turns up illegal weapons and drugs and prevents more serious crime. New

York Police Commissioner Raymond Kelly contends that stop-and-frisk helped

police solve 170 crimes (Rivera and Baker, 2010). The fact that police departments

in the precincts with the largest minority populations use this practice to deter drug

dealing and violent crime can result in misleading statistics.

Traffic Stops

Although the operation of a motor vehicle on public roads is considered a privilege,

the driver and occupants remain protected by the Constitution. Being stopped by the

police for no or insufficient reason is considered unreasonable and, therefore, a consti-

tutional violation of Fourth Amendment rights. Delaware v. Prouse (1979) established

[E]xcept in those situations in which there is at least clear articulable, reasonable

suspicion that a motorist is unlicensed or that an automobile is not registered, or

that either the vehicle or an occupant is otherwise subject to seizure for violation

of law, stopping an automobile and detaining the driver in order to check his

driver’s license and the registration of the automobile are unreasonable under

the Fourth Amendment.

Officer Smith sees David Driver driving a car on

Main Street. David goes right through a stop sign–

controlled intersection without stopping, nearly

colliding with another car. Officer Smith pulls

David over.

During the stop, the officer has a hard time

hearing David because of the traffic noise, so the

officer has David step out of the car, and the two

talk on the side of the road.

While talking to David, Officer Smith hears a

radio call regarding an armed robbery. The descrip-

tion of the car matches David’s, and the location of

the robbery occurred at the spot where David ran

the stop sign. The officer handcuffs David, frisks

him for weapons, and has him sit in the squad car,

telling David, “Just sit here for a few minutes while

I try and sort this out.”

As David is getting into the squad, he blurts

out, “You must know about the weed in my car. It’s

under the seat.” The officer finds a small amount of

marijuana under David’s front seat.

After about 10 minutes, the officer learns infor-

mation that shows it is unlikely David is the rob-

ber. He has David step from the squad car,

un-handcuffs him, and gives him a ticket for not

stopping at the intersection and possessing a small

amount of marijuana.

■ Did Officer Smith arrest David? Why or why not?

■ Was the frisk justified? What facts support your conclusion?

Constitutional Law in ACTION

CASE IN BRIEF

Delaware v. Prouse (1979)

ISSUE Is it constitutional to stop a car to do a random check

of the driver’s license status

when there is no probable cause

or reasonable suspicion?

RULING No. A stop in this manner is unreasonable and

violates the Fourth Amendment.

An officer must at least establish

reasonable suspicion that the

driver is committing or has com-

mitted a crime to make a seizure

(i.e., a stop).

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Chapter 8 Conducting Constitutional Seizures 243

By Matt Sledge (Huffington Post, May 21, 2013)

NEW YORK—The trial of the New York City Police Department’s controver-

sial stop-and-frisk practice ended on Monday as lawyers defending the city

were peppered with sharp questions from the federal judge hearing the case.

But whether U.S. District Judge Shira Scheindlin will declare stop-and-

frisk unconstitutional—and whether she will impose changes on NYPD pro-

cedures—were questions that lingered over the closing arguments in her

Manhattan courtroom. Civil rights attorneys led by the non-profit Center for

Constitutional Rights are suing the city on behalf of black and Latino

residents.

The lawsuit, filed in January 2008, draws to a close in the waning months

of Mayor Michael Bloomberg’s three terms in office. It centers on one of his

defining legacies: the massive expansion of reported stop-and-frisk searches,

which last year resulted in 533,042 stops, 87 percent of them on blacks and

Latinos.

While the Democratic candidates vying to replace Bloomberg mostly

agree the police tactic needs to be modified, Bloomberg has repeatedly cred-

ited stop-and-frisk with the city’s record-low crime rates. But inside court,

Scheindlin has barred the city from boasting about the program’s effective-

ness, which is disputed. Instead, she is considering only whether the police

stops violate the Constitution.

The testimony of 12 witnesses who described 19 different stops, argued

plaintiffs’ lawyer Gretchen Hoff Varner, proved that the NYPD is “tossing the

requirements of the Fourth and Fourteenth Amendments out the window,

and making people of color afraid to leave their homes.”

Police officers in court repeatedly claimed that the stopped witnesses fit a

description of crime suspects. But Hoff Varner said “in stop after stop, the

description comes down to one thing: male black.”

The city claimed witnesses’ testimony showed only that police usually do

have a good reason for a stop, from a suspicious glance to a readjusted waist-

band. And a statistical analysis of police stops purporting to show racial bias,

city lawyers argued, failed to take into account the race of crime suspects.

The plaintiffs proved “no indication of racial motivation whatsoever,”

said city lawyer Heidi Grossman.

Both sides detailed the accounts of many of the 19 stops that form the

basis for the trial. One particularly pointed exchange was over the NYPD’s

encounter with Devin Almonor, who was stopped at age 13 while cops were

responding to reports of street fight involving youths in Harlem.

“NYPD Stop-and-Frisk Trial Ends as Judge Peppers City with Questions” IN THENEWS

(Continued)

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244 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Police said they stopped Almonor because of the disturbances, combined

with a suspicious glance over his shoulder and his jaywalking.

“While jaywalking on its own may not be indicative of a crime, in the

totality of all the circumstances, it was a reasonable basis for a stop,” Gross-

man said.

“If jaywalking in New York City is consistent with committing a crime,”

Hoff Varner shot back during her closing arguments, “then we all would have

gotten stopped.”

“They had gone there looking for a young black male and they found

one,” Hoff Varner said, charging that police changed their reason for the stop

afterwards. “They stopped first and invented reasons later.”

Scheindlin repeatedly interrupted Grossman and another city lawyer, at

one point asking why nine out of 10 stops do not result in any police action.

“That’s a big error rate,” Scheindlin said. If the race of crime suspects is

used as part of the analysis of stop-and-frisks, the judge later added, “you

may worry that they’re adding race in as a reasonable suspicion factor.”

Legal observers have suggested that Scheindlin seems likely to rule

against the city. In a related lawsuit brought by the American Civil Liberties

Union about a stop-and-frisk practice aimed at private residential buildings

in the Bronx, the judge ruled in January that the city had violated New York-

ers’ constitutional rights.

In this case, Scheindlin suggested that she would need to piece together

one constitutional violation, such as stops without reasonable suspicion, with

the plaintiff’s statistical analysis of stops, to find a violation of the Fourteenth

Amendment’s equal protection clause guaranteeing that people will not be

treated differently because of their race.

The plaintiffs have suggested a wide range of potential outcomes, from

changing the NYPD’s training practices to creating new forms to document

stop-and-frisk encounters, to appointing a court monitor with the power to

stop racially biased stops.

Scheindlin said she was “intrigued” by one potential remedy—making

some officers work with “body-worn cameras” to document every interac-

tion. She asked the city whether a court-appointed expert might be less intru-

sive than a monitor.

Motorists, for example, may be stopped if driving a car

with expired license plates or for an equipment violation, such

as burned-out turn signals, headlights, or taillights. A vehicle

may also be stopped because of erratic driving or if it matches

the description of a vehicle seen at or near a crime or coming

from the direction of a crime scene. Certainly, an investigatory

stop is justified if the driver or occupants of a vehicle are sus-

pected of committing a crime.

A traffic stop for an offense classified as a petty misde-

meanor, for example, a relatively minor driving or equipment

Offi cers may stop mot orist s for violations of the law, wh ich may include equipment violations, erratic driving, or invalid vehicle regist ration, as well as wh en an occupant inside the vehicle is suspect ed of having committ ed a crime.

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Chapter 8 Conducting Constitutional Seizures 245

violation (not defined by the law as crimes) is just that, a stop. Therefore, the Miranda warning is not required—the person is not under arrest and is free to go— as soon as the officer issues the citation. In Berkemer v. McCarty (1984), the Supreme Court held, “Persons temporarily detained pursuant to [stops made by police for traffic offenses] are not in custody for the purposes of Miranda. In addition to the detention being brief, it occurs in public.” According to the Berkemer Court, these factors “mitigate the danger that a person questioned will be induced to speak

where he would not otherwise do so freely.” Miranda is discussed in Chapter 10. In Pennsylvania v. Mimms (1977), two officers on routine patrol observed Mimms

driving a vehicle with an expired license plate. The officers stopped Harry Mimms

to issue a traffic ticket. One officer approached and asked Mimms to step out of the

car and produce his license and vehicle registration. When the driver stood up, the

officers noticed a large bulge under Mimms’s jacket. Fearing it was a weapon, one

officer frisked Mimms and discovered a loaded .38-caliber revolver. Mimms sought

to exclude the evidence during trial, arguing it was obtained illegally. The Court,

however, sided with the officers, ruling once a police officer has lawfully stopped a

vehicle for a traffic violation, he or she may order the driver out of the car, even

without suspicion of other criminal activity or threat to the officer’s safety. Once the

driver is out of the vehicle, if the officer then reasonably believes the driver may be

armed and dangerous, the officer may conduct a frisk. The Court, in Maryland v. Wilson (1997), extended Mimms by stating

An officer making a traffic stop may order passengers to get out of the car pend-

ing completion of the stop. . . . As a practical matter, the passengers are already

stopped by virtue of the stop of the vehicle. The only change in their circum-

stances which will result from ordering them out of the car is that they will be

outside of, rather than inside of, the stopped car. Outside the car, the passengers

will be denied access to any possible weapon that might be concealed in the

interior of the passenger compartment.

Ordering the driver out of the vehicle is permitted as a safety precaution for the

police once a lawful stop of the vehicle has been made. The Court cited statistics

showing that 30 percent of officers shot in the line of duty were shot as they

approached someone seated in a vehicle. In the case of passengers, the Court again

conveyed its safety concern for police personnel by permitting the passengers to be

ordered out of the vehicle as well. No explanation need be given.

A question of concern to officers is, when a vehicle is subject to a traffic stop, is

a passenger in that vehicle “seized” for the purposes of the Fourth Amendment? In

Brendlin v. California (2007), the Supreme Court ruled unanimously “yes”—all occu- pants in a vehicle, not just the driver, are considered seized for the purposes of the

Fourth Amendment during a traffic stop. Thus, all occupants may challenge the

constitutionality of the stop. In this case, Bruce Brendlin was a passenger in a

vehicle stopped for expired registration tabs. Although the officer had determined

through dispatch, before making the stop, that the registration renewal was being

processed and had observed a valid temporary registration permit properly affixed

to the car, the officer decided, nonetheless, to proceed with the stop despite lacking

reasonable suspicion to do so.

After approaching the vehicle, the officer recognized the passenger as “one of

the Brendlin brothers.” Recalling that either Scott or Bruce Brendlin had dropped

Bec ause a traffi c stop is brief and occurs in public, it is not considered an arres t, thus Miranda warnings need not be given.

CASE IN BRIEF

Pennsylvania v. Mimms (1977)

ISSUE May an officer order the driver out of a car during a

traffic stop as a matter of course?

RULING Yes. The Court ruled that ordering a driver out

of the car, with no additional

suspicion than the original stop,

is a minimal intrusion and is

outweighed by officer safety

issues. In Maryland v. Wilson, the

Court added that passengers may

be ordered out of the car as well

with no additional suspicion.

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246 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

out of parole supervision, the officer asked Brendlin to identify himself. The officer

returned to his squad car, verified that Brendlin was a parole violator with an

outstanding no-bail warrant for his arrest and requested backup. Once reinforce-

ments arrived, Brendlin was ordered out of the car at gunpoint and placed under

arrest. When police searched Brendlin incident to arrest, they found an orange

syringe cap on his person. A pat-down search of the driver revealed syringes and

a plastic bag of a green, leafy substance, and she was formally arrested. Officers

then searched the car and found tubing, a scale, and other items used to produce

methamphetamine.

Charged with possession and manufacture of methamphetamine, Brendlin

moved to suppress the evidence obtained in the searches of his person and the car

as fruits of an unconstitutional seizure, arguing that the officers lacked probable

cause or reasonable suspicion to make the traffic stop. The trial court denied the

motion and ruled that the stop was legal, but the California Court of Appeal

reversed, holding that Brendlin was seized by the traffic stop, which was unlawful.

Reversing, the state supreme court held that suppression was unwarranted

because Brendlin, as a passenger, was not seized at the point of the traffic stop. It

was only after the officer determined the passenger ’s arrest warrant status that

Brendlin became seized. The case ultimately found its way to the U.S. Supreme

Court, which ruled that Brendlin had been illegally seized the moment the vehicle

stopped at the side of the road because the stop was illegal. The Court vacated and

remanded the case.

In Arizona v. Johnson (2009), the Court ruled in favor of an officer who frisked a passenger during a traffic stop. In this case, three members of a gang task force

made a stop in a neighborhood associated with the Crips. The stop was based on a

license plate check that showed the vehicle’s registration had been suspended for

an insurance-related violation. The officers had no reason to suspect anyone in the

vehicle of criminal activity. The backseat passenger, Lemon Johnson, was wearing

a blue bandana and other attire consistent with Crips membership and carrying a

scanner in his back pocket. Wanting to question Johnson alone, one officer asked

Johnson to step out of the car and, given the Crips’ reputation, patted him down for

weapons. The pat down revealed the butt of a gun, and Johnson was charged with

and convicted of unlawful possession of a weapon.

The Arizona Court of Appeals reversed Johnson’s conviction saying that the

detention had evolved into a separate, consensual encounter stemming from an

unrelated investigation of one of the officers into Johnson’s possible gang affilia-

tion. The Arizona Supreme Court denied review. The U.S. Supreme Court reversed

this judgment. Justice Ruth Bader Ginsburg, writing for the Court, stated, “When

the stop is justified by suspicion (reasonably grounded, but short of probable cause)

that criminal activity is afoot, as the [Terry] Court explained, the police officer must be in a position to act instantly on reasonable suspicion that the persons temporar-

ily detained are armed and dangerous” (Arizona v. Johnson, 2009). The Court ana- lyzed three other Supreme Court cases in its decision: Pennsylvania v. Mimms, Maryland v. Wilson, and Brendlin v. California. The Court stressed that “An officer’s inquiries into matters unrelated to the justification of the traffic stop . . . do not

convert the encounter into something other than a lawful seizure, so long as those

inquiries do not measurably extend the duration of the stop.” The Court remanded

the case to the lower court to decide the issues consistent with its opinion.

CASE IN BRIEF

Brendlin v. California (2007)

ISSUE During a traffic stop, is a passenger of a vehicle seized

under the Fourth Amendment?

RULING Yes. The occupants of a car are seized just as the

driver is. Therefore, the occu-

pants are able to challenge the

constitutionality of a stop.

CASE IN BRIEF

Arizona v. Johnson (2009)

ISSUE May an officer frisk a passenger of a car lawfully

stopped solely for a traffic

violation?

RULING Yes. As long as the traffic stop is valid and the officer

develops reasonable suspicion

that the passenger is armed and

dangerous, the passenger may

be frisked.

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Chapter 8 Conducting Constitutional Seizures 247

Thus, if police officers make a lawful stop for a traffic violation, they may order

the driver and passengers out of the car under Mimms and Wilson. If, during such a stop, officers are reasonably suspicious that the situation is dangerous, they may

order the driver out of the car and frisk him or her and can order any passengers in

the car out and frisk them as well. Furthermore, if a frisk of at least one occupant of

a car is permitted, the police may also check the passenger compartment for weap-

ons (Michigan v. Long, 1983). Johnson allows the frisk of a passenger as long as the stop of the car is legal and reasonable suspicion exists for the passenger being

armed and dangerous.

Courts have differed on whether an arrest has actually occurred when the

offense for which the party has been stopped constitutes more than a petty viola-

tion. Officers have broad discretion in how they will deal with traffic law violations

and in many instances may cite the driver, issue a summons for a required court

appearance, or arrest and jail the defendant. Cases vary across the country regard-

ing at what point the circumstances have crossed from a stop to an arrest with traf-

fic enforcement contacts. The analysis would be the same, whether a stop and frisk

has escalated in intensity and scope to an arrest by considering the totality of the

circumstances and whether the individual reasonably believed he was not free to

go. This situation exemplifies the importance of officers’ understanding of the law,

how they perceive the circumstances, and how their actions are recorded in their

reports and presented during court testimony.

Whren v. United States (1996) addressed the issue of the pretext stop, that is, stopping a vehicle to look for evidence of a crime under the justification of a less-

serious traffic stop. In Whren, plainclothes officers saw a truck wait at a stop sign for an unusually long time, turn suddenly without signaling, and then speed away.

The officers stopped the vehicle and, as they approached it, saw the defendant

holding bags of crack cocaine. The defendant argued that the police used the traffic

stop as a pretext to uncover the drugs. The Court held that as long as probable

cause existed to believe a traffic violation occurred, stopping the motorist was rea-

sonable: “Subjective intentions play no role in ordinary, probable-cause Fourth

Amendment analysis.”

Although the courts have upheld the reasonableness of stops for misdemeanors

committed in the presence of police, the question has been raised whether it is con-

stitutional to stop a vehicle based on an alleged or suspected misdemeanor not committed in police presence. The Ninth Circuit U.S. Court of Appeals became the

first federal appellate court to tackle this question in United States v. Grigg (2007), and the court’s answer was “no” under the facts of this particular case. Incidentally,

this has since become the majority rule in the federal circuits, being determined on

a case-by-case basis and not on a per se rule disallowing such stops.

The Grigg case involved the complaint of a driver who played the car’s stereo at an obnoxiously loud volume, in violation of the city’s noise ordinance, in a resi-

dential neighborhood. The investigating officer who made the stop saw an SKS rifle

on the passenger seat, and a frisk revealed that Justin Grigg held concealed brass

knuckles. He was arrested for possession of an unregistered automatic weapon.

The trial judge ruled that the stop was a proper Terry stop. The Ninth Circuit Court of Appeals, however, ruled that stopping Grigg was not constitutionally

proper but did leave open the possibility that other completed misdemeanors

might lawfully justify an investigative detention, stating that any decision to stop

pretext stop stopping a vehicle to search for evidence of

a crime under the guise of a

traffic stop

CASE IN BRIEF

Whren v. United States (1996)

ISSUE Is it unconstitutional to stop a car for a traffic violation

when there exists another law

enforcement objective?

RULING No. As long as the basis for the original stop was

valid, it does not matter if the

real objective was different.

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248 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

a vehicle based on a report of a completed misdemeanor “must consider the

nature of the misdemeanor offense in question, with particular attention to the

potential for ongoing or repeated danger (e.g., drunken or reckless driving), and

any risk of escalation (e.g., disorderly conduct, assault, domestic violence). An

assessment of the ‘public safety’ factor should be considered within the totality of

the circumstances, when balancing the privacy interests at stake against a Terry stop, along with the possibility that the police may have alternative means to

identify the suspect or achieve the investigative purpose of the stop” (United States v. Grigg, 2007).

This same consideration comes in to play when considering roadblocks and

checkpoints.

Roadblocks and Checkpoints

A roadblock stops vehicles without suspicion of criminal activity by the person

stopped, an action contrary to the commands of the Fourth Amendment. Although

the police have a reason for conducting the roadblock, they are checking everyone,

rather than a particular individual. The purposes of the roadblock have been con-

sidered by courts, as have the means. In Brown v. Texas (1979), the Supreme Court created a balancing test:

The Brown balancing test requires that courts evaluating the lawfulness of road- blocks consider three factors: (1) the gravity of the public concerns that are

addressed or served by the establishment of the roadblock; (2) the degree to

which the roadblock is likely to succeed in serving the public interest; and (3) the

severity with which the roadblock interferes with individual liberty.

United States v. Pritchard (1981) held that checkpoints to inspect drivers’ licenses and vehicle registrations were constitutionally permissible as long as officers did

not stop just one vehicle for this purpose or conduct random checks.

To combat drunken driving, the Michigan State Police established sobriety

checkpoints, at which every driver at that location was stopped and checked. In

Michigan Department of State Police v. Sitz (1990), the police checked drivers at a specific location. They had contact with 126 vehicles, each delayed about 25 sec-

onds, and netted two arrests. When this practice was challenged as violating the

Fourth Amendment, the Supreme Court, using the Brown balancing test, concurred that sobriety checkpoints are a seizure but one that is reasonable because the

“means of intrusion on motorists stopped briefly at sobriety checkpoints is slight.”

In this case, the severity of the drunken-driving problem combined with the poli-

cies in place to limit intrusiveness garnered the Court’s approval.

Conversely, the Supreme Court held in City of Indianapolis v. Edmond (2000) that vehicle checkpoints for drugs violate the Fourth Amendment. Justice Sandra Day O’Connor, writing for the Court, stated, “We have never approved a check-

point program whose primary purpose was to detect evidence of ordinary crimi-

nal wrongdoing. Rather, our checkpoint cases have recognized only limited

exceptions to the general rule that a seizure must be accompanied by some mea-

sure of individualized suspicion.” The primary difference between drug interdic-

tion checkpoints and other checkpoints is that the primary purpose of drug

interdiction checkpoints was to discover evidence of criminal wrongdoing

whereas previously approved checkpoints such as sobriety checkpoints had

CASE IN BRIEF

Michigan Department of State

Police v. Sitz (1990)

ISSUE Does a state highway checkpoint, at which every

vehicle is required to stop and the

driver’s sobriety checked, violate

the Fourth Amendment when no

individualized suspicion exists?

RULING No. Although such a stop is a seizure under the Fourth

Amendment, the initial intrusion

at the checkpoint is minimal when

balanced against the interests

in preventing drunk driving, and

carefully established checkpoints

are reasonable. Note that further

investigation of each driver may

require individualized suspicion.

MYTH Drunk driving checkpoints are

always illegal.

REALITY Not true. The particular facts of

each checkpoint will need to be

analyzed to determine its rea-

sonableness. Also, some states

have found them unconstitutional

under their state constitution.

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Chapter 8 Conducting Constitutional Seizures 249

public safety goals: “The Court said that without drawing the line at roadblocks

designed to serve the general interest in crime control, law enforcement authori-

ties could construct roadblocks for almost any conceivable law enforcement pur-

pose and those intrusions could become a routine part of American life” (Ferdico

et al., 2009, p. 420).

Although rendering general checkpoints to check people, even if to check for

public safety concerns, for the most part unconstitutional, the Court reiterated in

Edmond (2000) that its decision did not change the lawfulness of sobriety or border checkpoints or those involving some individualized suspicion.

Illinois v. Lidster (2004) determined that a roadblock to find a witness to a fatal hit-and-run crash that happened a week before was lawful because it met the bal-

ancing tests from both Brown and Sitz. In Lidster, the police stopped traffic at the same time the accident occurred, although a week later, and going the same direc-

tion, hoping to find a witness. A driver approaching the checkpoint was arrested for

drunk driving after nearly hitting an officer. The arrested driver argued that the

checkpoint was unconstitutional pursuant to Edmond, but the Court disagreed:

The concept of individualized suspicion had little role to play . . . the stop’s

primary law enforcement purpose was not to determine whether a vehicle’s occupants were committing a crime, but to ask vehicle occupants, as members of

the public, for their help in providing information about a crime in all likelihood

committed by others. . . . The relevant public concern was grave. . . . Police were

investigating a crime that had resulted in a human death.

In addition, the interference with people’s liberty was “minimal . . . Each stop

required only a brief wait in line—a very few minutes at most.”

Stops at International Borders

The increased awareness of and concern over terrorism and heightened pres-

sures to secure our nation’s borders has affected police practices and interpreta-

tion of the law. How much protection and to where such protection extends are

subjects of continuing legal development, especially during these times of

increased vigilance, yet precedent cases continue to be the basis on which future

decisions are made.

A series of cases have concluded that checkpoints at or near international

borders need no justification to stop all vehicles to check for illegal entrants into

the United States. The Supreme Court has held that the government’s

compelling interest in protecting the nation’s borders alone justifies stopping

any vehicle or individual, but stops may not be done on the basis of ethnicity,

religion, or the like. Suspects may even be held at international borders longer

than would be considered reasonable beyond that point of entry into the

United States.

The Supreme Court has also recognized that routine border stops and searches

may be carried out at borders and at their functional equivalent, meaning being

essentially the same or serving the same purpose, for example, airports that receive

nonstop flights from foreign countries. Although many international airports are

not located directly near a physical border of the United States, they do provide a

point of entry for individuals traveling from other countries and are, thus, the func- tional equivalent of a natural geographic border.

functional equivalent essentially the same or serving

the same purpose

CASE IN BRIEF

City of Indianapolis v. Edmond

(2000)

ISSUE Does a vehicle checkpoint violate the Fourth

Amendment when the primary

purpose is to detect drugs?

RULING Yes. The objective of the checkpoint is to detect evi-

dence of ordinary criminal wrong-

doing without any individualized

suspicion as a starting point. To

be reasonable, the motivations

must be more focused and not of

a general crime control nature.

CASE IN BRIEF

Illinois v. Lidster (2004)

ISSUE Is the Fourth Amend- ment violated by designing a

checkpoint to stop all motorists

and ask them about a fatal hit-

and-run accident?

RULING No. The purpose of the checkpoint is to stop and

elicit information about a fatal

hit-and-run accident committed

by another, not to determine if

the vehicle’s occupants were

committing a crime.

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250 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

In United States v. Martinez-Fuerte (1976), the Supreme Court allowed the border patrol to set up permanent or fixed checkpoints on public highways leading to or

away from the Mexican border, ruling that these checkpoints are not a violation of

the Fourth Amendment.

United States v. Brignoni-Ponce (1975) involved a roving patrol, not a stationary checkpoint. The fixed border crossing was closed at the time because of inclement

weather, and the stop of Brignoni-Ponce’s vehicle, which led to the discovery of two

illegal aliens inside the vehicle, was made by officers on roving patrol after Bri-

gnoni-Ponce had driven across the border. The Court stated that border patrol

officers could detain and question, as opposed to actually searching, people in a car

if reasonable suspicion existed, adding that within 100 miles of an international

border, reasonable suspicion was all that was needed (but that merely “looking

Mexican” was insufficient cause). If the stop based on reasonable suspicion pro-

duced the probable cause for a warrant, any evidence would be admissible. Check-

points farther than 100 miles from an international border are sometimes also made

for other reasons, such as stopping everyone in the name of public safety. This area

of law is changing.

United States v. Montoya de Hernandez (1985) involved the holding by U.S. Cus- toms agents of a woman suspected of being a “balloon swallower (a person who

ingests a container of narcotics to be expelled later).” The suspect was seized for

more than 16 hours while customs agents got a court order to conduct medical tests

on her. A rectal examination revealed 88 bags of cocaine. Her detention and subse-

quent search at the border for that period, although well beyond what would be

considered a normal customs search and inspection, was constitutional because the

agents reasonably suspected she was smuggling drugs.

United States v. Flores-Montano (2004) held that 37 kilograms of marijuana was admissible when found by customs agents who took apart a vehicle’s gas tank. The

defendant argued the government needed reasonable suspicion to remove the gas

tank, but Chief Justice Rehnquist disagreed: “Government’s interest in preventing

the entry of unwanted persons and effects is at its zenith at the international bor-

der. Congress has always granted the executive plenary authority to conduct rou-

tine searches and seizures at the border, without probable cause or a warrant, to

regulate the collection of duties and to prevent the introduction of contraband into

this country.”

Whatever the purpose of a stop, sometimes circumstances dictate that officers

detain a suspect for a more thorough investigation.

Arrests: An Overview Most state laws define an arrest in general terms as the taking of a person into

custody, in the manner authorized by law, to present that person before a magis-

trate to answer for committing a crime.

The requirement of the Fourth Amendment that searches and seizures be reason- able dictates that the physical response by the police must be commensurate with the offense. The general guideline is that a person is under arrest if a reasonable

person would believe that under the existing circumstances and when viewed

objectively, there was a restraint on movement that one associates with formal arrest

and that the person was, in fact, being detained by the police and not free to go.

arrest the taking of a person into custody, in the manner

authorized by law, to present that

person before a magistrate to

answer for committing a crime

CASE IN BRIEF

United States v. Brignoni-Ponce

(1975)

ISSUE Is it contrary to the Fourth Amendment to stop a car,

as part of a roving checkpoint

near the border, when the sole

basis for the stop is the ethnicity

of the occupants?

RULING Yes. Because this case involved a roving patrol

conducted away from the border

checkpoint, the officers needed

reasonable suspicion to stop and

investigate the occupants.

CASE IN BRIEF

United States v. Flores-Montano

(2004)

ISSUE Is it constitutional to search, by disassembling a

gas tank on a car, at a border

checkpoint without any suspicion

of illegal activity?

RULING Yes. There is less privacy at the border than in the

interior of the country, and a search

of this type is reasonable simply

by the fact that it happened at

the border. The government has

a strong interest in protecting the

country against the illegal entry of

people or things.

MYTH Race can never be a factor in

establishing reasonable suspicion.

REALITY Not true. Race can be a factor, but

it cannot be the only factor.

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Chapter 8 Conducting Constitutional Seizures 251

Subjective, as opposed to objective, beliefs are not considered

when determining if an arrest has occurred.

An arrest may involve actual physical detention or a com-

mand, verbal or otherwise, by the officer requiring the suspect to

stay. Often this situation results from what began as a simple stop

based on reasonable suspicion.

When Arrests May Be Lawfully Made Generally, lawful arrests can be made in one of three ways.

Officers can usually make a lawful arrest

■ for any crime committed in their presence. ■ for any felony if they have probable cause. ■ with an arrest warrant.

In the first two instances, a warrant is not required, although they are preferred by

the courts and desirable to protect police from lawsuits. An estimated 95 percent of

all arrests are made without warrants.

Warrantless Arrests for Crimes Committed in the Presence of an Officer

If police officers observe a crime being committed, they have the authority to arrest

without a warrant the individual(s) involved in committing the crime. “In the pres-

ence of” includes any of the officer’s senses, for example, hearing a drug buy going

down or smelling the odor of marijuana. The information the officer obtains

becomes the probable cause for arrest.

As noted in State v. Pluth (1923), the officers must know that a crime is being committed before making the arrest. They cannot merely suspect that someone is

about to commit a crime. The crime or the attempt must actually take place in the

officer’s presence.

Some laws of arrest depend on whether the violation is a misdemeanor or a

felony. The difference, specifically defined within a state’s criminal code, is a math-

ematical one: How much time would a person be sentenced to if convicted of that

particular offense? Generally, a felony carries a minimum prison sentence of 1 year.

Officers who come to the crime scene of a misdemeanor after it has been com-

mitted are sometimes limited on whether or not they can make an arrest, even

though the suspect is still at the scene. In many states, officers must obtain an arrest

warrant to make an arrest for a misdemeanor not committed in their presence,

despite the Court’s ruling in Atwater v. City of Lago Vista (2001), when it held: “We simply cannot conclude that the Fourth Amendment, as originally understood,

forbade peace officers to arrest without a warrant for misdemeanors . . . .” State

criminal procedure statutes define such limitations, and all states have laws or rules

of criminal procedure authorizing the arrest of persons for which the offense actu-

ally carries no jail or prison time.

However, exceptions do exist. For example, officers may arrest for misde-

meanors not committed in their presence if the suspect might flee, might conceal

or destroy evidence, or if the incident involves a traffic accident. In some states,

To arres t is to deprive a person of liberty by legal authority, taking a person into custody for the purpose of holding him or her to answer a criminal charge.

Police may, without a warrant, arres t for any crime committ ed in their pres ence.

Offi cers can usually make a lawful arres t for any crime committ ed in their pres ence, for any felony if they have probable cause, and with an arres t warrant.

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252 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

such as Minnesota, officers may arrest for some unwitnessed misdemeanors such

as domestic assault, driving under the influence of drugs or alcohol, and shoplift-

ing. In fact, in the case of domestic assault, police in Minnesota are mandated to

make an arrest if they have probable cause to believe an assault was committed

by that person.

Warrantless Arrests Based on Probable Cause

The second type of lawful warrantless arrest is an arrest based on probable cause

that the suspect has committed a felony. Referring to the previous discussion of

probable cause, if a law enforcement officer has sufficient information to reasonably

believe, given the totality of the circumstances, that a crime is occurring or has

occurred, and that the suspect is the offender, the officer may arrest without a war-

rant—but only for a felony-level crime. As with warrantless crimes committed in the presence of an officer, some states have statutory exceptions permitting war-

rantless arrests based on probable cause for certain lesser crimes, such as DWI,

domestic assault, and shoplifting.

United States v. Watson (1976) established that an arrest without a warrant made in a public place is valid if it is based on probable cause, even if the arresting officers

had time to obtain an arrest warrant. Recall that probable cause can be based on

anything an officer becomes aware of through the senses—observational probable

cause—or on information provided by others.

In contrast to warrantless arrests for misdemeanors, which must be made as

soon as practical, warrantless arrests for felonies based on probable cause do not

need to be made immediately. This differentiation is based on the severity of the

felony and society’s interest in expediting a felon’s arrest, as long as sufficient prob-

able cause exists.

Police may, without a warrant, arres t for an unwitness ed felony based on probable cause.

Officer Jones is called to an address on Main Street

regarding a domestic disturbance. He arrives and

speaks with Mrs. Kemp. She tells the officer that

her husband was upset tonight over Mrs. Kemp

losing her job and became so angry that he slapped

her in the mouth. This caused a small cut to her lip,

a misdemeanor in Officer Jones’s state. Mr. Kemp

then went to his workshop in the garage.

Officer Jones goes to the workshop and sees

Mr. Kemp. Immediately, Mr. Kemp exclaims, “I

didn’t do anything!” At that time, Officer Jones

tells Mr. Kemp he is under arrest for domestic

assault (even though the officer was not present

when the assault happened). Mr. Kemp is then

handcuffed and brought to jail.

■ Is it lawful for the officer to arrest Mr. Kemp for a misdemeanor not committed in his presence?

■ What if Mr. Kemp had caused his wife to get stitches, making the assault a felony?

■ Could the officer arrest Mr. Kemp several hours later in a different location?

■ What does the officer need to arrest Mr. Kemp? In other words, what legal standard must be met before the officer can arrest Mr. Kemp?

Constitutional Law in ACTION

C e

n g

a g

e L

e a

rn in

g 2

0 1

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Chapter 8 Conducting Constitutional Seizures 253

Arrests with a Warrant

A conventional interpretation of the Fourth Amendment requires that to be reason-

able, all arrests be made with a warrant based on probable cause. The warrant must

name the person making the complaint, the specific offense being charged, the

name of the accused, and the basis for the probable cause.

The person making the complaint must swear the facts given are true and sign

the complaint. Usually the complaint is made by the investigating police officer. In

Watson (1976) the Supreme Court held, “Law enforcement officers may find it wise to seek arrest warrants where practicable to do so, and their judgments about prob-

able cause may be more readily accepted where backed by a warrant issued by a

magistrate.” The Court went on to note, however, “We decline to transform this

judicial preference into a constitutional rule when the judgment of the nation and

Congress has for so long been to authorize warrantless public arrests on probable

cause.” The Court further emphasized that requiring a judge to review the facts of

every situation and then issue an arrest warrant before officers could act would

“constitute an intolerable handicap for legitimate law enforcement.”

Where Arrests May Be Made Arrests may be made in public places without a warrant if probable cause exists, as

established in Watson (1976). Even if a person retreats to a private place, the war- rantless arrest based on probable cause is valid, as established in United States v. Santana (1976).

Payton v. New York (1980) established that police may not enter a private home to make a routine felony arrest unless exigent circumstances exist, such as in hot

pursuit, to be discussed shortly. In this case, police gathered evidence sufficient to

establish probable cause that Payton had murdered a gas station manager. With-

out a warrant, they went to his apartment to arrest him. When no one answered

the door, they forced it open. Payton was not there, but the police found a

.30-caliber shell casing that was used as evidence in Payton’s murder conviction.

On appeal, the evidence was excluded, with the Supreme Court holding, “In terms

that apply equally to seizures of property and to seizures of persons, the Fourth

Amendment has drawn a firm line at the entrance to the house. Absent exigent

circumstances, that threshold may not reasonably be crossed without a warrant.”

In Payton, the Court affirmed the value of having an arrest warrant: “An arrest warrant founded on probable cause implicitly carries with it the limited authority

to enter a dwelling in which the suspect lives when there is reason to believe the

suspect is within.”

The Court held that guests “are entitled to a legitimate expectation of privacy

despite the fact that they have no legal interest in the premises and do not have the

legal authority to determine who may or may not enter the household.” The Court

also held that a person’s “status as to an overnight guest is alone enough to show

that he had an expectation of privacy in the home that society is prepared to recog-

nize as reasonable.”

In 1990, the Supreme Court changed its previous position so that now people

may have a legitimate expectation of privacy for standing purposes, even without

the “right to exclude other persons from access to” the premises in question.

CASE IN BRIEF

Payton v. New York (1980)

ISSUE Does the Fourth Amendment require a warrant to

enter a home to make an arrest?

RULING Yes. In the absence of exigent circumstances, the

police may not enter a home to

make a warrantless arrest.

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254 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Indeed, the founding fathers wanted to ensure that a

person’s home was free from unreasonable searches or sei-

zures, and the courts have upheld this basic freedom.

An Arrest or Not? De Facto Arrests As noted, a simple stop can escalate into an arrest. Some-

times the totality of the circumstances qualifies the seizure

as a detention tantamount to arrest, also called a de facto arrest. This is a situation in which the police take someone

in for questioning in a manner that is, in reality, an arrest,

but without the requisite probable cause. And any arrest without probable cause is

an illegal arrest.

Kaupp v. Texas (2003) illustrates this situation. Police officers were investigating the homicide of a 14-year-old girl and had the confessed killer in custody. The killer

implicated a friend, Robert Kaupp. The officers did not have enough corroboration

to establish probable cause to get an arrest warrant, so they decided to bring him in

and confront him with the evidence. At 3 a.m., three officers were admitted to

Kaupp’s home by his father. The officers woke Kaupp with a flashlight, handcuffed

him and, without allowing him to get dressed, took him to the station. A statement

Kaupp gave them was used to convict him of complicity in the murder. The

Supreme Court, however, overturned the conviction, noting that the police lacked

probable cause for the de facto arrest, which made it illegal, and as “tainted fruit,”

the statement was ruled inadmissible.

Another leading case in this area is Dunaway v. New York (1979), in which police picked up the defendant based on information that implicated him in a murder.

They took him to the police station for questioning. He was never told he was

under arrest, but he was not free to leave. Even though he was not booked and,

therefore, would have no arrest record, the Supreme Court ruled that the seizure

was illegal because the defendant was not free to leave. The seizure was much more

than a simple stop and frisk and, as such, should have been based on probable

cause. In its ruling, the Court declared, “Hostility to seizures based on mere suspi-

cion was a prime motivation for the adoption of the Fourth Amendment.”

Courts will not concern themselves with what the police officer calls the event:

a stop, detention, or arrest. What does matter is whether, “by means of physical

force or show of authority, (the officer) has in some way restrained the liberty of a

citizen” (Terry v. Ohio, 1968). In Michigan v. Chesternut (1988), the Supreme Court stated it would not formulate an exact definition of what constitutes a seizure,

rather the analysis would view the totality of the circumstances to determine

whether “a reasonable person would have believed that he was not free to leave.”

Because of the implications for the arrestee and the arresting officer, the Court

has found itself confronted with determining when police can seize a person and

what circumstances constitute a seizure. It need not always be what one might

imagine—someone handcuffed in the back of a police car. It might be in the course

of a defendant being pursued while taking flight or being in the midst of officers

causing the person to think he or she is not free to go. This contention is echoed in

Cupp v. Murphy (1973): “The detention of the respondent against his will constituted

de facto arrest a situation in which the police take someone

in for questioning in a manner

that is, in reality, an arrest, but

without the requisite probable

cause

Police may make a warrantless arres t based on probable cause in a public place or in a private place that a suspect has ret reated to fr om a public place. Police may not make a nonconsensual, warrantless entry into a home to make a felony arres t of that person or of a gues t in the home unless exigent circumstances exist .

CASE IN BRIEF

Kaupp v. Texas (2003)

ISSUE Is a person arrested when officers wake him in the

middle of the night, handcuff him,

and take him, dressed only in his

boxers, to the police station after

a visit to a crime scene?

RULING Yes. The officers effectively arrested Kaupp despite

a lack of probable cause because

the circumstances surrounding

his detention and transport to

the police station would make a

reasonable person believe they

were not free to leave.

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Chapter 8 Conducting Constitutional Seizures 255

a seizure of his person, and the Fourth Amendment guarantee of freedom from

unreasonable searches and seizures is clearly implicated.”

The Knock-and-Announce Rule Revisited In arrests, with or without a warrant, the common law rule is that for an entry into

a home to be constitutional, police must first knock and identify themselves and

their purpose—the knock-and-announce rule introduced in Chapter 7. However,

factors that necessitate entry without complying with the general rule will not auto-

matically cause the arrest to be deemed unreasonable. Exceptions are to be consid-

ered on a case-by-case basis, considering the totality of the circumstances. For

example, exigent circumstances such as hot pursuit, discussed shortly, allow offi-

cers to forcibly enter constitutionally protected areas to make a warrantless arrest.

In addition, in some instances officers know in advance that they wish to enter

without following the knock-and-announce rule because they fear the suspect may

harm them or others or may destroy evidence.

In such cases they may request a no-knock arrest warrant to permit them to enter

without first announcing themselves. A warrant with a no-knock provision authorizes

the police to enter premises unannounced. They can, for example, break down a door

or enter through a window to force entry into fortified crack houses that have barri-

caded doors and windows, alarms, and other protection. A no-knock warrant affords

officers the element of surprise and is justified when either officer or citizen safety or

the destruction of evidence is a concern. A safety trend is the development of specially

trained entry teams to assist in executing such dangerous warrant services.

Community Caretaking Doctrine In many states, police officers are charged with community caretaking functions as

well, totally divorced from the detection, investigation, or acquisition of evidence

relating to violation of any criminal statute. However, under the “community care-

taking doctrine,” police officers are allowed, without reasonable suspicion of any

criminal activity, to approach and detain citizens for community caretaking pur-

poses (Collins, 2008). This doctrine does not implicate the Fourth Amendment

unless it is determined that the person has been seized. As long as there is an objec-

tive basis showing that the officer felt the person was in peril or otherwise in need

of assistance, then the Fourth Amendment is not yet implicated (because the person

is not seized), and the officer has a right to investigate. Once the emergency is over,

any further actions on behalf of the officer may constitute a seizure and the Fourth

Amendment comes into play. Thus, as long as the interaction is not seen as a sei-

zure, any evidence of wrongdoing is admissible. If, however, the facts of the

encounter escalate so that a crime exists, the rules of arrest come into play.

Escalating Events Police often respond to calls that appear routine but end up escalating into an

arrest:

It seems police officers are put between a rock and a hard place whenever they

are called to conduct a well-being check, assist in the involuntary commitment

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256 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

of a mentally ill person or aid a distraught woman who wants her drunken

spouse out of the house until he sobers up. Most of the time when officers

respond to such calls, there’s no need to use force or arrest the individuals. But

sometimes a drastic series of events requires officers to make life-and-death deci-

sions. And when a life is taken, the good ol’ American way is to sue the police

officers who were called to assist. (Scarry, 2008, p. 72)

Hastings v. Barnes (2007) illustrates one such situation. In this case, Todd Hast- ings called a social services agency saying he was having suicidal thoughts and

asked for help. The two responding officers and a reserve officer were told Todd

wasn’t known to be armed, but when they arrived, Todd appeared nervous and

agitated. He tried to slam the door shut and ran into a nearby bedroom. When the

officer entered the home they saw Todd grab a Samurai sword with a 20-inch blade

and a 21-inch handle. One officer yelled “knife” and all three drew their weapons.

They ordered Todd several times to put the sword down. In the hopes of obtaining

compliance with their order, one officer pepper-sprayed Todd, who, unfazed by the

spray, turned the sword toward the officers and began moving in their direction.

The officers, still in the doorway, attempted to retreat but couldn’t because it was

too crowded. Todd was shot four times and died at the scene.

Todd’s brother, Clint Hastings, filed a civil rights lawsuit claiming the officers

had violated Todd’s Fourth Amendment right to be free from unreasonable searches

and seizures and that the officers’ unreasonable actions, which ran counter to their

training, had escalated, instead of de-escalated, the situation involving a mentally

ill person. The officers requested summary judgment, based on qualified immunity,

saying their decision to shoot Todd was a measure of self-defense and, therefore,

objectively reasonable under the Fourth Amendment. A three-judge panel denied

summary judgment, saying,

Our review of the record convinces us that whether [the officers’] actions unrea-

sonably precipitated their need to use deadly force calls for a jury determination.

But viewing the facts in the light most favorable to Hastings, a constitutional

violation occurred. Todd was not a criminal suspect. He was a potentially men-

tally ill/emotionally disturbed individual who was contemplating suicide and

had called for help. Rather than attempt to help Todd, [the officers] crowded

themselves into Todd’s doorway (leaving no room for retreat), issued loud and

forceful commands at him and pepper-sprayed him, causing him to become

even more distressed. At the time they pepper-sprayed him, Todd was not ver-

bally or physically threatening them. . . . Although Todd had a sword, his stance,

at least up until the time he was pepper-sprayed, was defensive, not aggressive,

posing no threat to anyone but himself. A reasonable jury could find that under

these facts [the officers’] actions unreasonably escalated the situation to the point

deadly force was required.

In reaching this decision, the court had relied on the officers’ training to estab-

lish the unlawfulness of their actions, noting that such training called for officers

responding to mentally ill or emotionally disturbed individuals to be calm; attempt

to establish a line of communication; not irritate them; not move suddenly, give

rapid orders or shout at them; not enter their comfort or critical zones or crowd

them; and not touch them unless necessary.

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Chapter 8 Conducting Constitutional Seizures 257

On July 16, 2009, at 12:45 a.m., a Cambridge, Massachusetts, radio dispatch

went out about a call from a resident regarding a possible breaking and entering at

their neighbor’s house on Ware Street by “two males, unknown race” who might

still be in the house. Off-duty Sgt. James Crowley was in the vicinity, so he

responded to the call. He saw a man in the foyer, who also saw him. The man was

the homeowner who had had trouble with his key. In fact, the man was nationally

known Harvard Professor Henry Gates, who upon seeing the officer at the door

expected him to inquire if he needed help. But the officer, knowing nothing of the

man’s reputation nor of the fact that he resided at the house, asked him to step

outside. Crowley is White, Gates Black.

Because Crowley was on the porch, he did not answer at least three calls from

dispatch, who, alarmed, dispatched six police cars to the scene. Gates refused to

leave the house and told Crowley that the officer didn’t know who he was messing

with. Crowley remained calm, while Gates, who continued to refuse to step outside

or to produce identification, became indignant and began shouting at Crowley.

Crowley arrested Gates and took him to police headquarters, where the professor

was properly identified and released.

Professor Gates is a highly acclaimed Harvard professor who holds dozens of

honorary degrees. He was just returning home after filming a documentary in

China, was still weary from the 14-hour flight, and was fighting a bronchial infec-

tion when he arrived home to find his front door jammed and feared someone had

tried to break in. Sergeant Crowley was described as the “antithesis of a racially

biased officer, a trusted adviser of the Cambridge police commissioner and a new-

generation officer indoctrinated with racial sensitivity, a role model who taught

other officers on avoiding racial profiling” (Stockton, 2009, p. 8).

The Gates–Crowley incident provides another example of escalating events.

The 60-page report of the Cambridge Review Committee, Missed Opportunities, Shared Responsibilities (2010), downplays race and focuses on respect and the need for citizens and law enforcement officers to show respect for one another. Had this

occurred, the arrest might have been avoided (Vennochi, 2010).

Pursuit Pursuit is a serious, often dangerous police activity that endangers not only the

pursuing officers and suspect but also innocent bystanders. A USA Today review report says suspect pursuits yield high fatalities, with bystanders accounting

for one-third of those killed (“Report Says Suspect Pursuits,” 2010). The pur-

suit of a suspect does not necessarily end at a border, as often portrayed in the

movies. The terms fresh pursuit and hot pursuit are used to establish this distinction.

The term fresh pursuit explains the circumstances in which officers leave their

jurisdiction and enter another to make an arrest of a felon who committed the fel-

ony in the officers’ jurisdiction and then fled across jurisdictional lines. Many states

have adopted the Uniform Act of Fresh Pursuit, which allows police officers of one

state to enter another state in fresh pursuit to arrest a suspect who has committed

a felony in the state from which the offender is fleeing. Some states require that

anyone so arrested be brought immediately before the nearest court. Other states

allow the arresting officers to return with their prisoner to their own state. Often,

fresh pursuit a situation in which police are immediately in

pursuit of a suspect and may

cross state jurisdictional lines to

make an arrest of a felon who

committed the felony in the

officers’ state

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258 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

the result of the pursuit will be that the suspect will be charged with crimes in all

jurisdictions involved.

Hot pursuit is another issue. In a hot pursuit officers are “hot on the tail” of a

suspect and, because of the exigencies of the situation, are allowed to forcibly enter

constitutionally protected areas, such as a home, without a warrant. Hot pursuit

requires that (1) the officers have probable cause that the person committed a seri-

ous crime, (2) the arrest is set in motion in a public place, and (3) the pursuit is

immediate and continuous. In Warden v. Hayden (1967), the Court held that police officers in hot pursuit of an armed robbery suspect but lacking a warrant “acted

reasonably when they entered the house and began to search for a man of the

description they had been given and for weapons which he had used in the robbery

or might use against them. The Fourth Amendment does not require police officers

to delay in the course of an investigation if to do so would gravely endanger their

lives or the lives of others.”

United States v. Santana (1975) established that a hot pursuit justifies forcible entry into an offender’s home without a warrant. In this case, the police attempted

to arrest the defendant in her doorway when she fled into her house and the police

followed. The Court found, “We thus conclude that a suspect may not defeat an

arrest that has been set in motion in a public place . . . by the expedient of escaping

to a private place.”

Minnesota v. Olson (1990) held that “a warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence . . . or the need to

prevent a suspect’s escape, or the risk of danger to the police or to other persons

inside or outside the dwelling.”

The intriguing aspect of this case was that the defendant, who was arrested at

the home of a friend, where he claimed he had been staying as a guest, challenged

the rule up to that point that guests did not have standing to exert a Fourth Amend-

ment defense. In the Olson case, the Court held that overnight guests do have a reasonable expectation of privacy, and absent hot pursuit or one of the other excep-

tions to the warrant requirement, a warrantless search or seizure will be the victim

of the exclusionary rule. In Olson, sufficient time had elapsed so that the pursuit was no longer hot and, although maybe warm, not of sufficient degree as to justify

the warrantless entry.

However, in Minnesota v. Carter (1998), the Court further defined when a person is not a guest by holding that individuals in a residence solely to conduct a drug deal may not assert a Fourth Amendment defense. Stating that although “an over-

night guest in a home may claim the protection of the Fourth Amendment . . . one

who is merely present with the consent of the householder may not.” The Court

considered the following factors: that the defendants were not overnight guests,

that they were essentially present for a business transaction, and they were in the

apartment for only a few hours.

In a ruling favoring police, the Supreme Court in Scott v. Harris (2007) ruled that police can put a fleeing motorist at risk of serious injury or death in an attempt to

stop the motorist’s flight from endangering the lives of innocent motorists and

pedestrians. In this case Deputy Timothy Scott was involved in the pursuit of Victor

Harris, clocked doing 73 miles per hour (mph) in a 55-mph zone and, when a

county deputy activated his flashing lights to try to make a traffic stop, Harris sped

off at greater than 85 mph down a two-lane road. Scott pursued and, after being

hot pursuit the period during which an individual is being

immediately chased by law

enforcement and, because of the

exigencies of the situation,

officers are allowed to forcibly

enter constitutionally protected

areas, such as a home, without a

warrant

MYTH To be considered “hot pursuit,”

there needs to be a wild chase on

public streets, either in a car or

on foot, with an officer hot on the

heels of a suspect.

REALITY Not true. In reality, although

some type of chase is occurring,

hot pursuit does not require an

extended “hue and cry in and

about the public streets.”

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Chapter 8 Conducting Constitutional Seizures 259

authorized by his supervisor to “take him out,” Scott applied his push bumper to

the rear of Harris’s vehicle, causing Harris to lose control, go off the road, overturn,

and crash. The crash left Harris a quadriplegic. Harris filed an excessive force law-

suit under the Fourth Amendment. A videotape of the pursuit clearly contradicted

Harris’s version of the events and showed Harris forcing drivers off the road, run-

ning multiple red lights, and causing several police cars forced to engage in the

same hazardous maneuvers to keep up. The Court noted, “What we see on the

video more closely resembles a Hollywood-style car chase of the most frightening

sort, placing police officers and innocent bystanders alike at great risk of injury.” In

deciding the case, the Court stated, “A police officer’s attempt to terminate a dan-

gerous high-speed car chase that threatens the lives of innocent bystanders does not

violate the Fourth Amendment even when it places the fleeing motorist at risk of

serious injury or death.”

This victory for police clearly showed that two lower courts, which had not seen

the video, were wrong to hold that a deputy sheriff who had rammed the suspect’s

car could be held liable for his actions. This case also illustrates the close relation-

ship between pursuits and use-of-force incidents, which are both regulated by the

Fourth Amendment’s restrictions on seizures because Scott is technically a use-of- force case.

Use of Force Among events that have startled the United States was the March 3, 1991, event

bystander George Holliday happened to videotape and that was seen repeatedly

by nearly everyone in this country: the aftermath of a 115-mph chase, in which

26-year-old Rodney King was seen being repeatedly subjected to baton blows by

police. The question, as stated by Time Magazine in its cover story article on May 11, 1992, after the acquittal of the officers involved and ensuing riots across

the country, was, “It seemed impossible that any jury could acquit the four offi-

cers who were accused of beating Rodney King. How could anyone discount the

brutal vision of King being clubbed and kicked on videotape for 81 unforgetta-

ble seconds?”

The debate included accusations of racism and police brutality. It also ques-

tioned how much force the police are authorized to use. Legal authority permits

reasonable use of force and consequences when that force becomes excessive.

Although it has sometimes been the source of misunderstanding, debate, and even

outrage, use of force is a component of the law that courts have sought to articulate

and, when necessary, hold accountable those who go too far.

“No other enforcement task is more difficult or demanding personally and pro-

fessionally than to use force only at the right time, in the right way and for the right

reasons” (Means and Seidel, 2010, p. 18). Law enforcement recognizes and accepts

five legitimate uses of force, often referred to as the “Rules of Engagement” (Cope

and Callanan, 2009):

■ Self-defense: a right common to all persons ■ Defense of others: a duty assigned to police personnel ■ Effectuate an arrest: a vested authority granted by law ■ Prevent an escape: a vested authority granted by law ■ Overcome resistance: a vested authority granted by law

CASE IN BRIEF

Scott v. Harris (2007)

ISSUE Can an officer take actions that place a fleeing

motorist at risk of serious injury

or death to stop the motorist’s

flight from endangering the lives

of innocent bystanders?

RULING Yes. It is reasonable to use force, even deadly force,

to stop a motorist who is driving

so recklessly as to put innocent

people in jeopardy. It comes

down to whether the force is

reasonable.

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260 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Police brutality tarnishes the image and reputation of the majority of police

personnel who do not engage in such unprofessional behavior. Many officers felt

the repercussions of the King incident, as others did after the 1997 assault of Haitian

immigrant Abner Louima by at least one New York City police officer. Louima was

anally sodomized with a broken broomstick by the officer (three others were acquit-

ted), who threatened to kill Louima if he told anyone.

Police know that what may appear to be excessive use of force is not always the

case. At citizens’ police academies around the nation, ordinary citizens who want a

glimpse into what the law enforcement profession is all about experience firsthand

how hard restraining and handcuffing someone who chooses to resist can be. Sus-

pects on intoxicants or those dealing with mental issues sometimes are unaware of

police efforts to subdue them, and what may appear brutal is actually a strategic

and controlled escalation of the use of force continuum.

The widespread use of video recorders has resulted in police actions, both on

the streets and in police stations, being closely scrutinized. People on both sides

argue the images only tell part of the story. Emotions aside, at times reasonable

force is necessary and authorized by our law. At other times, government agents

must be held accountable for wrongdoing. Law enforcement personnel must

understand and abide by the law they have sworn to uphold.

What Is Reasonable Force?

Just how much force is acceptable? The easy answer is that which is reasonable. “By

law, the police have the authority to use force if necessary to make an arrest, keep

the peace or maintain order” (Cole and Smith, 2010, p. 247). A more difficult ques-

tion surrounds where necessary ends and excessive starts, and the issue can be divi- sive: “Research has shown that the greatest use of deadly force by the police is

found in communities with high levels of economic inequality and large minority

populations” (Cole and Smith, 2010, p. 247). People look to the law for unbiased

responses.

Tennessee v. Garner (1985) set standards beyond the broad previous standard of any force to make the arrest. In this case, a 15-year-old boy was shot in the back of

the head and killed as he began climbing over a fence after being told to stop by

police responding to a prowler call. At the time, Tennessee and many other states

had a law referred to as the fleeing felon rule, authorizing the use of deadly force to stop any fleeing felon. In Garner, however, the Supreme Court held, “Unless it is necessary to prevent the escape and the officer has probable cause to believe that

the suspect poses a significant threat of death or serious physical injury to the offi-

cer or others,” deadly force was no longer allowed. Because using deadly force is

considered a seizure, Garner was the case that began the recognition that the Fourth Amendment should be applied to evaluate uses of force. Yet, this case begged the

question of how an officer would be judged on assessing how dangerous a suspect

might have been.

The Court provided further guidance in Graham v. Connor (1989). The facts of this case were that Dethorne Graham, who was diabetic and in need of orange juice

to offset a diabetic reaction, had a friend drive him to a store. Because of the long

line, he instead rushed back to the car to have his friend take him home. Officers

who observed him thought his behavior suspicious and stopped them. In the

CASE IN BRIEF

Tennessee v. Garner (1985)

ISSUE Can deadly force be used to apprehend a fleeing,

nonviolent felon?

RULING No. Deadly force is not justified when the fleeing

felon presents no immediate

danger to the officer or to others.

A police officer may not seize an

unarmed, nondangerous felony

suspect through the use of

deadly force.

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Chapter 8 Conducting Constitutional Seizures 261

ensuing interaction with police, during which the officers said he would not

explain his behavior, Graham alleged he sustained multiple injuries at the hands of

the police and sued.

In holding for the police and rejecting Graham’s complaint, the Court replaced

the “substantive due process test” of whether the officer acted “in good faith” or

“maliciously and sadistically” with a new test: “objective reasonableness.” The

Court held, “The calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second judgments—in circum-

stances that are tense, uncertain and rapidly evolving—about the amount of force

that is necessary in a particular situation.” The reasonableness of force used must

be judged “from the perspective of the officer on the scene rather than with the

20/20 vision of hindsight.” This is the “lens” through which the courts will view

the force incident and evaluate (1) the severity (dangerousness) of the crime at

issue, (2) if there is an immediate threat to the officer or others, and (3) whether or

not the suspect is actively resisting or attempting to evade arrest by flight—

elements commonly referred to as the “Graham factors.” The evaluation is done on a case-by-case basis, with the Court considering the specific facts and circumstances

of each case. Ultimately, the Connor Court did not decide if excessive or reasonable force was used; it decided only on the issue of what the standard should be. The

case was sent back down to a lower court for a decision on whether or not, based

on reasonableness, the force was excessive.

The result of these cases is not that police cannot use force but that it must be

reasonable under the circumstances. When making an arrest, officers may use that

force necessary to gain control of the person: “A law enforcement officer’s right to

use force to arrest depends on the degree of force used and the context in which it is

used” (Ferdico et. al, 2009, p. 333). “In a regularly lengthening series of decisions,

federal courts have held that the Constitution does not require officers to use the

least amount of force possible in a given situation. It requires only that the force used

be ‘reasonable’” (Means and Seidel, 2009, p. 31). The circum-

stances include when the officer believes deadly force is neces-

sary to prevent the death or serious bodily injury to another.

“For a use of force to be reasonable, the transaction that

underpins the need for force must be lawful. Force used

toward unlawful objectives is generally unreasonable. The

cure for most ‘force problems’ is found in the Fourth Amend-

ment classroom—studying the law of arrest and detention,

search and seizure” (Means and Seidel, 2008, p. 27). Officers

must know the “core” transaction and what lawful choices

are available because uncertainty about what the law allows regarding the seiz-

ing or searching of a suspect or the entrance to protected space leads to officer

hesitance and can seriously jeopardize officer safety (Means and Seidel, 2008, pp.

24–25). Consider the three legal environments that officers operate within and

the legally permissible use of force in each environment:

■ The voluntary contact—words of request, invitation, solicitation, cooperation,

or just simple conversation—not a seizure; requires no justification. The offi-

cer’s exact words and body language are critical. No force of any kind is

permitted.

MYTH The police must always be cor-

rect in their assessment of the

situation when using force. If they

are proven wrong or mistaken

later, it will be deemed an exces-

sive use of force.

REALITY Not true. Facts learned after the

force incident cannot be used to

show the force was excessive or

that it was reasonable. One must

always use only the facts that the

officer had at the moment the

force was used.

MYTH Police have to use the least

amount of force necessary to

achieve their legal objective.

REALITY Not true. All that the law requires

is that the officer use “reason-

able” force.

CASE IN BRIEF

Graham v. Connor (1989)

ISSUE What is the standard for liability in proving excessive

force?

RULING The Fourth Amend- ment provides an explicit

textual guarantee to be free from

unreasonable searches and sei-

zures. It provides the standard of

reasonableness for evaluating the

use of force (a seizure), deadly or

not, against a free citizen.

When making an arres t, police offi cers can use only as much force as is reasonable to overcome res ist ance and gain compliance. Excess ive force may cause the offi cer to be sued.

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262 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

■ The investigative detention—a limited seizure requiring reasonable suspicion

that the individual is involved in criminal activity. If suspects resist or flee,

reasonable force may used to control them or place them in restraints. ■ The arrest—a seizure requiring probable cause. Allows the use of restraints as

well as the involuntary movement of a suspect from one place to another

(Means and Seidel, 2008).

Officers should be trained in all aspects of use of force, including the law, weap-

ons use, and when different degrees of force are appropriate. Force continuums,

such as the one shown in Figure 8.1, provide graphic representation of the grada-

tions of force police officers are trained to use. From the mere presence of an officer

to control a situation, to the use of verbal commands, hands, aerosol weapons,

batons, or electrical weapons, to the use of deadly force, the police have options

available, and all are appropriate to implement when reasonable.

In addition, the Supreme Court has never categorically banned any specific

tactic, weapon, technique, or equipment. The closest it has come was in City of Los Angeles v. Lyons (1983), which involved the so-called choke hold. Plaintiffs sought an injunction to prohibit its use, alleging unconstitutional excessive force. Federal

and appellate courts granted the injunction, ruling the tactic as “unreasonable”

when neither death nor serious injury was threatened. By the time the case got to

the Supreme Court, the Los Angeles Police Department (LAPD) had modified its

policies. The Court reversed the findings of the lower courts, saying there now was

no need to consider the matter because use of the challenged tactic was not likely

to be repeated. In other words, the case was moot.

Use of Less-Lethal Force

The proliferation and use of less-lethal weapons in law enforcement has skyrock-

eted in the past decade. Weapons as simple as OC sprays and as exotic as electronic

muscular disruption devices have rapidly become mainstays in law enforcement

arsenals. And even more exotic devices are emerging: “Indeed, more progress has

been made in employing force without resorting to lethal options in the past two

decades than in all previous history” (Heal et al., 2009, p. 24).

A survey by the Police Executive Research Forum (PERF) and the University of

South Carolina found that arm-locks and other “empty-hand tactics” are still the

most common use of force (“Survey by PERF and University of South Carolina,”

2009) but have declined significantly. Six general categories of less-lethal weapons

currently in use are physical restraints (nets, glue), light, acoustics, chemicals (OC

or pepper spray), impact projectiles, and electric sources (conducted energy devices

[CEDs] or electronic control devices [ECDs]), the TASER® being the most com-

monly used weapon in this category. A study by PoliceOne asked readers, “The last

time you deployed a less-lethal weapon, it was a. . . .” Fifty-eight percent responded

TASER, followed by OC (28 percent), baton (9 percent), 40 mm (3 percent), and

beanbag (2 percent) (Hawkes, 2010).

Scoville (2008, p. 35) cautions, “When a cop uses, or doesn’t use, a less-lethal

weapon in contemporary America, there can be hell to pay.” He notes, “Perhaps

nowhere in contemporary American society does the question of the right tool for

the right job come into play more often than in matters of police use of force.” In

considering less-lethal options, one point is clear: “We always say, ‘Never bring a

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Chapter 8 Conducting Constitutional Seizures 263

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264 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

beanbag to a gunfight.’ If the suspect has a firearm, in most situations I would think

less-lethal weapons are not appropriate” (Basich, 2010, p. 51).

The wide range of less-lethal options and when each might be appropriate are

beyond the scope of this text. Only the use of TASER is briefly discussed because

debate over its use has found its way into a lower court.

The Use of TASERs

The controversy surrounding the safety of CEDs is also beyond the scope of this

text, but the weight of evidence shows clearly that such devices rarely cause death

and have probably saved countless lives when a firearm was not needed to achieve

the desired results. In a study of risk of injury from five major force options, use of

conducted energy weapons (CEW) scored highly on safety for both suspects and

officers. The TASER X26 (the most recent model) was the most frequently deployed

of the five options against nearly half (48.2 percent) of resistant arrestees. About

1 percent ended up hospitalized, about 12 percent needed minor outpatient treat-

ment, and 42 percent had only minor injuries. There were no fatalities (“New Study

Ranks Risks of Injury,” 2008). Since then numerous other studies have supported

the safety of such devices.

In 2009, a lower court ruled for the first time on the constitutionality of the use

of TASERs, causing a national stir. In Bryan v. McPherson (2009), the U.S. Circuit Court of Appeals acknowledged the value in having a tool such as the TASER, say-

ing, “We recognize the important role controlled electric devices like the TASER X26

can play in law enforcement. The ability to defuse a dangerous situation from a

distance can obviate the need for more severe, or even deadly, force and thus can

help protect police officers, bystanders and suspects alike.” However, the court

ruled the use of force in this case was excessive and unreasonable. Consider, from

the official court transcript, the following factual and procedural background:

Carl Bryan’s California Sunday was off to a bad start. The twenty-one-year old,

having stayed the night with his younger brother and some cousins in Camarillo,

which is in Ventura County, planned to drive his brother back to his parents’

home in Coronado, which is in San Diego County. However, Bryan’s cousin’s

girlfriend had accidently taken Bryan’s keys to Los Angeles the previous day.

Wearing the T-shirt and boxer shorts in which he had slept, Bryan rose early,

traveled east with his cousins to Los Angeles, picked up his keys and returned

to Camarillo to get his car and brother. He then began driving south towards his

parents’ home. While traveling on the 405 highway, Bryan and his brother were

stopped by a California Highway Patrolman who issued Bryan a speeding

ticket. This upset him greatly. He began crying and moping, ultimately remov-

ing his T-shirt to wipe his face. Continuing south without further incident, the

two finally crossed the Coronado Bridge at about seven-thirty in the morning.

At that point, an already bad morning for Bryan took a turn for the worse.

Bryan was stopped at an intersection when Officer McPherson, who was sta-

tioned there to enforce seatbelt regulations, stepped in front of his car and sig-

naled to Bryan that he was not to proceed. Bryan immediately realized that he

had mistakenly failed to buckle his seatbelt after his earlier encounter with the

police. Officer McPherson approached the passenger window and asked Bryan

whether he knew why he had been stopped. Bryan, knowing full well why and

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Chapter 8 Conducting Constitutional Seizures 265

becoming increasingly angry at himself, simply stared straight ahead. Officer

McPherson requested that Bryan turn down his radio and pull over to the curb.

Bryan complied with both requests, but as he pulled his car to the curb, angry

with himself over the prospects of another citation, he hit his steering wheel and

yelled expletives to himself. Having pulled his car over and placed it in park,

Bryan stepped out of his car.

There is no dispute that Bryan was agitated, standing outside his car, yelling

gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes.

It is also undisputed that Bryan did not verbally threaten Officer McPherson

and, according to Officer McPherson, was standing twenty to twenty-five feet

away and not attempting to flee. Officer McPherson testified that he told Bryan

to remain in the car, while Bryan testified that he did not hear Officer McPherson

tell him to do so. The one material dispute concerns whether Bryan made any

movement toward the officer. Officer McPherson testified that Bryan took “one

step” toward him, but Bryan says he did not take any step, and the physical

evidence indicates that Bryan was actually facing away from Officer McPherson.

Without giving any warning, Officer McPherson shot Bryan with his taser gun.

One of the taser probes embedded in the side of Bryan’s upper left arm. The

electrical current immobilized him whereupon he fell face first into the ground,

fracturing four teeth and suffering facial contusions. Bryan’s morning ended

with his arrest and yet another drive—this time by ambulance and to a hospital

for treatment.

One of the ECD probes in Bryan’s arm required surgical removal in the emergency

room. Brave and O’Linn (2010, p. 12) note,

The case was decided based on a motion for summary judgment, thus the court

was required to use a “perceptual lens” that presumes that the plaintiff’s facts

are true. . . . The court ruled that Officer McPherson’s use of the ECD under these

circumstances was not a reasonable use of force under Graham v. Connor. . . . The court concluded that Bryan did not objectively or reasonably pose an immediate

threat of harm to the officer, himself or others, nor did he evade or resist at the

time the ECD was used. More specifically from the court’s perspective, interpret-

ing the plaintiff’s facts, the court concluded that Bryan was stopped for a seat

belt violation; was not a dangerous felon; was not a flight risk; did not offer

resistance at all; and was not an immediate threat because he was unarmed

(wearing only boxer shorts and tennis shoes); did not level a threat at the officer,

was standing 15 to 25 feet away from the officer and not advancing; was, at most,

a disturbed and upset young man, not an immediately threatening one; and was

not facing the officer when he was hit with the ECD. The court further concluded

that the officer:

■ Failed to warn Bryan that he would be shot with an ECD if he did not volition-

ally comply. ■ Did not consider what other tactics, if any, were available to effect the arrest. ■ Failed to consider less-intrusive alternatives (for example, waiting for

approaching backup).

As Means and McDonald (2010, p. 55) note, “This case is only controlling law in

the Ninth Circuit. However, it provides judicial guidance on law enforcement’s use

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266 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

of electronic control devices, particularly in the context of exces-

sive force allegations.”

Few cases of mistaken use of a firearm instead of an electronic

control device (ECD) have been heard, but those that exist have

put officers on notice that mistakes can happen. The question

before the courts then becomes one of objective reasonableness. In

two of three recent cases, district courts have found such a mistake

objectively reasonable, but the cases did not involve a suspect’s

death (Milazzo, 2008, p. 12).

Use of Deadly Force

Use of deadly force is restricted to cases of self-defense or to save the life of another.

Del Carmen (2010, p. 520) defines deadly force as “force that, when used, would lead a reasonable officer objectively to conclude that it poses a high risk of death or seri-

ous injury to its target.” As discussed, the “fleeing felon” rule that allowed police

officers to shoot any felon attempting an escape is no longer permissible (Tennessee v. Garner, 1985):

The use of deadly force to prevent the escape of all felony suspects, whatever the

circumstances, is constitutionally unreasonable. It is not better that all felony

suspects die than that they escape. Where the suspect poses no immediate threat

to the officer and no threat to others, the harm resulting from failing to appre-

hend him does not justify the use of deadly force to do so.

As Justice Bryon White set forth, even deadly force can be exercised in prevent-

ing the escape (i.e., “arresting”) of an individual but “only if the officer has probable

cause to believe that the suspect poses a significant threat of death or serious physi-

cal injury to the officer or others.” Thus, no longer can one be shot with justification

merely because he or she is a fleeing felon.

It is critical to understand that in any use of force situation, deadly or not, the

general principle is that the more intrusive the seizure (the higher level of force), the

stronger the government interest should be (why the force is being applied). This

makes sense because “deadly force is unmatched”; there must be a strong interest

at stake to use it.

Garner is important for several reasons. To start, it was the first case to use the Fourth Amendment as the standard for a force situation, emphasizing that deadly

force is a seizure under the Constitution. Second, the Court recognized that in order

to use deadly force when a suspect is fleeing an officer, facts must exist that rise to the

level of probable cause in order to believe that the suspect poses a “significant threat

of death or serious physical injury to the officer or others.” Standing alone, the fact

that a felon is fleeing the officer does not authorize deadly force. Additionally, when

probable cause exists to believe that a person has committed a crime threatening or

inflicting serious physical harm, deadly force may be used to prevent the escape of

that person. The Court also added the importance of the officer warning a person that

deadly force is about to be used. However, there is one caveat to this: It must be “fea-

sible” for the officer to do so. Officers have to make split-second decisions, and man-

dating a warning be given in every situation is not a practical expectation.

The use of a TASER might be considered unreasonable excess ive force if the subject is neither a fl ight risk, a dangerous felon nor an immediate threat (Bryan v. McPherson).

The only justifi cation for use of deadly force is self-defense or prot ect ing the lives of ot hers.

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Chapter 8 Conducting Constitutional Seizures 267

For many years, courts interpreted Garner as setting the standard for deadly force. In reality, though, deadly force is just a type of force. It is subject to the same

standard as lesser forms of force. In short, deadly force is evaluated under the rule

set forth in Graham v. Connor. Recall the case of Scott v. Harris (2007) presented earlier in the chapter in

which Harris, fleeing from police at very high speeds, was left paralyzed after

crashing his car because of a push maneuver Deputy Scott had applied to Harris’s

vehicle. Harris sued Scott for excessive force, claiming deadly force was unrea-

sonable in that situation. In a shift from lower court interpretation of the law

surrounding deadly force, the Supreme Court stated the issue was not whether

the actions of the officer put a person at risk of serious harm or death, but

whether or not the force was reasonable. In explaining this further, the Court

pointed out that the decision in Garner was an application of the reasonableness test. Writing for the majority, Justice Antonin Scalia stated that Garner did not establish a “magical on/off switch that triggers rigid preconditions whenever an

officer ’s actions constitute ‘deadly force.’ ” Ultimately, like any other use of force

evaluation, force must be reasonable. “[I]n the end we must still slosh our way

through the factbound morass of ‘reasonableness.’ ” In every use of force encoun-

ter, facts are what determine reasonableness.

Trooper Smith was part of a DWI enforcement

detail. He was transporting an arrestee to face a

judge for charging. As the trooper approached the

courtroom, the doors suddenly burst open and an

unarmed detention officer ran out, yelling, “He’s

got a gun! He’s got a gun!” Trooper Smith immedi-

ately pulled his gun as the detention officer ran

past.

Following on the heels of the detention officer

came Anderson. The trooper saw Anderson run-

ning full speed at him with his hands clasped

together. Anderson was about 20 feet from the

trooper and closing fast. Unknown to Trooper

Smith, Anderson was another arrestee detained as

part of the DWI enforcement and was in handcuffs.

Believing Anderson had a gun, Trooper Smith fired

his weapon and hit Anderson several times, caus-

ing serious injuries.

Additional troopers arrived and entered the

courtroom and subdued a second person. It was

quickly determined that Anderson was not the

man with the gun that the detention officer was

running from. The man from whom the detention

officer was running was, instead, the second man

still inside the courtroom.

■ Using the Graham factors, was Trooper Smith’s use of force reasonable? What facts are important in making this determination?

■ Is it relevant that Anderson turned out not to be the man with the gun?

■ Does it matter that shooting a gun at another is considered deadly force

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268 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Citizen’s Arrest Not all arrests are made by government agents. Common law has held that any-

one witnessing certain crimes may make a citizen’s arrest and then turn that

individual over to the authorities. Most states now address this by statute.

Although use of force is often not addressed in these statutes, anyone may law-

fully use reasonable force to repel an assault, including when making a citizen’s

arrest. The law of citizen’s arrest is what private security officers use. Because of

this law, the Fourth Amendment, or any constitutional restraints for that matter,

do not bind them.

Any private citizen making a citizen’s arrest, however, will be liable if the

arresting citizen violates any civil or criminal laws when so doing or does not fol-

low the requirements of the applicable code pertaining to citizen’s arrest. Problems

that arise in this area include excessive force by individuals making a citizen’s

arrest, which has been the case in a number of incidents with, for example, bar

bouncers who excessively detain someone who has been placed under a citizen’s

citizen’s arrest the detention by a nongovernment agent of one

accused of an illegal act

Mack and his former girlfriend, Angie, went to the

casino together. After spending some time gam-

bling, the two went to the bar and began to talk.

Mack explained how he wanted to get back

together, but Angie told him she just wanted to

remain friends. The two began to argue and she

got up to return to the casino alone.

Mack followed her and tried to continue the

discussion. Angie repeatedly told him to leave her

alone—to the point where other patrons and

employees began to notice their interaction. Finally,

security approached Mack and told him he needed

to leave.

Mack began walking out with security behind

him. At the entrance he stopped, turned around,

and tried to come back inside. The security guards

again told him to leave, adding that now he was

trespassing and was not allowed to come back for

two weeks.

One hour later, Mack returned looking for

Angie. The security guards told him that he was

under arrest for trespassing and phoned the police

to come get Mack. The guards took Mack by the

arm and attempted to handcuff him while they

waited for the police. Mack pushed one guard in

the chest and then balled his hands into fists,

taking a boxer’s stance. Another security guard

tackled Mack and then handcuffed him.

As a result of the tackle, Mack hurt his shoul-

der. He sued the security guards for battery. The

guards defended their actions under a state statute

that allows a private person to make a citizen’s

arrest when a person commits a crime in their pres-

ence, and to do so using reasonable force.

■ What facts are important to determine if the guards used reasonable force as allowed by the statute?

■ Should the guards be held liable for the injury to Mack’s shoulder? Why or why not?

■ Would your opinion change if, instead of just tackling Mack, the security guards punched and kicked him while Mack was on the ground?

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Chapter 8 Conducting Constitutional Seizures 269

arrest. Most state statutes do not specify whether a private person making an

arrest can use force and whether such a person can call for assistance from others,

as the police can.

Most statutes state that the arrestee must be immediately turned over to law enforcement. In some cases, a suspect has sued the arresting party for offenses that

include false imprisonment and assault. A person who makes a citizen’s arrest must

use caution, for his or her own safety and to carry out the arrest without commit-

ting a crime or becoming open to civil liability. This type of situation is why an

increasing number of states are licensing private security personnel and mandating

training, and most professional security operations have extensive training to avoid

such problems.

Immunity from Arrest Certain classifications of people have immunity from arrest because of federal or

state statutes.

Many states have granted their legislators immunity from civil

lawsuits. Some states even give legislators immunity from traffic

arrests on their way to sessions, as is the case with federal legislators

as well. However, a legislator facing criminal charges has no such

immunity.

When a witness is subpoenaed to testify in another state, that per-

son will not be subject to arrest for a crime committed in that state

before his entrance into that state to testify (but is not immune for

arrest for a crime committed while in the state to testify). Such wit-

nesses are also granted a reasonable time to leave the state after testi-

fying without being subject to arrest. Both forms of immunity

discussed are matters of public policy, so as not to interfere with the

legal process.

In addition to the preceding, officers who use reasonable force in a lawful

manner are also immune from arrest because their actions do not violate the law.

However, officers who use excessive force either against property or people could

be subject to criminal or civil sanctions. Whereas in Saucier v. Katz (2001) the Court supported police officers by holding they may have qualified immunity in exces-

sive force cases, other cases support the plaintiffs who allege brutality. In addition

to civil claims for damages, officers who cross the line could find themselves sub-

ject to department discipline or the subject of a criminal complaint.

Foreign diplomats, including ambass adors, minist ers, their ass ist ants and att achés , and their families and servants, have complet e immunity fr om arres t. Foreign consuls and their deputies as well as some legislators and out-of - state witness es may also have limited immunity.

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270 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Discussion Questions

Summary

1. Explain what factors are important in determining whether a person is considered “arrested.”

2. Explain the difference between a stop and an arrest.

3. Why might states authorize probable cause arrests for certain unwitnessed misdemeanors?

4. How much force can be used by an officer when executing an arrest? How is it determined?

5. When determining whether a stop or an arrest is lawful, how is the term reasonable determined? And do the subject’s subjective feelings enter the analysis of determining reasonableness?

6. How does the entertainment industry portray arrest situations? Do you think this portrayal is generally realistic?

7. Do you know anyone who has been arrested? If so, what did they have to say about it?

8. Should anyone be immune from arrest, for example, foreign diplomats?

9. Should police officers who are doing their best to enforce the law ever be punished in any way if they are acting in “good faith”?

10. Under what circumstances is someone other than a law enforcement official authorized to make an arrest?

The elements of a seizure are (1) intending to seize an

object (including a person), (2) exercising authority to

do so, (3) physically controlling the object, and (4) the

understanding of what is happening such that a rea-

sonable person would not feel free to leave. A seizure

need not necessarily be an arrest, but all arrests are

seizures.

The Terry case established that the authority to stop and frisk is independent of the power to arrest.

A stop is not an arrest, but it is a seizure within the meaning of the Fourth Amendment and, therefore,

requires reasonableness. How long a stop may last

depends on factors that indicate the suspect was not

detained an unreasonably long time, including the

purpose of the stop and the time and means the

investigation required.

Officers may stop motorists for violations of the

law, which may include equipment violations,

erratic driving, or invalid vehicle registration, as

well as when an occupant inside the vehicle is sus-

pected of having committed a crime. Because a traf-

fic stop is brief and occurs in public, it is not

considered an arrest, thus Miranda warnings need not be given.

To arrest is to deprive a person of liberty by legal

authority, taking the person into custody for the pur-

pose of holding him or her to answer a criminal

charge. Officers can usually make a lawful arrest for

any crime committed in their presence, for any fel-

ony if they have probable cause and with an arrest

warrant.

Police may, without a warrant, arrest for any

crime committed in their presence. Police may, with-

out a warrant, arrest for an unwitnessed felony based

on probable cause. Police may make a warrantless

arrest based on probable cause in a public place or in

a private place that a suspect has retreated to from a

public place. Police may not make a nonconsensual,

warrantless entry into a home to make a felony arrest

of that person or of a guest in the home unless exi-

gent circumstances exist.

When making an arrest, police officers can use

only as much force as is reasonable to overcome

resistance and gain compliance. Excessive force may

cause the officer to be sued. The use of a TASER

might be considered unreasonable excessive force if

the subject is neither a flight risk, a dangerous felon

nor an immediate threat (Bryan v. McPherson). The only justification for use of deadly force is self-

defense or protecting the lives of others.

Foreign diplomats, including ambassadors, min-

isters, their assistants and attachés, and their families

and servants, have complete immunity from arrest.

Foreign consuls and their deputies as well as some

legislators and out-of-state witnesses may also have

limited immunity.

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Chapter 8 Conducting Constitutional Seizures 271

References Basich, Melanie. “Not Going for the Kill.” Police, March

2010, pp. 44–51. Brave, Michael, and O’Linn, Mildred K. “Bryan v.

McPherson—A New Standard for the Use of Electronic Control Devices?” The Police Chief, February 2010, pp. 12–13.

Cole, George F., and Smith, Christopher E. The American System of Criminal Justice, 12th ed. Belmont, CA: Wadsworth/Cengage Learning, 2010.

Collins, John M. “Community Caretaking Doctrine.” The Police Chief, February 2008, pp. 10–11.

Cope, Curtis J., and Callanan, Joe. “Understanding the Objectively Reasonable Standard—Taser.” LawOfficer.com, June 26, 2009. Retrieved June 5, 2013, from www.lawofficer.com/article/tactics- and-weapons/understanding-objectively-reas-7.

del Carmen, Rolando V. Criminal Procedure Law and Practice, 8th ed. Belmont, CA: Wadsworth/Cengage Learning, 2010.

Ferdico, John N.; Fradella, Henry F.; and Totten, Christopher D. Criminal Procedure for the Criminal Justice Professional, 10th ed. Belmont, CA: Wadsworth/Cengage Learning, 2009.

Hawkes, Andrew. “Keeping Your Less Lethal Options Open.” PoliceOne.com News. February 16, 2010. Retrieved June 5, 2013, from www.policeone.com/ police-products/less-lethal/TASER/ articles/2001750-Keeping-your-less-lethal-options- open/.

Heal, Sid; Bevbjerg, Victor; and Kenny, John. “Video Science and Non-Lethal Weapons.” Tactical Response, January–February, 2009, pp. 24–28.

Herbert, Bob. “Watching Certain People.” The New York Times, March 2, 2010. Retrieved June 5, 2013, from www.nytimes.com/2010/03/02/ opinion/02herbert.html?_r=0.

Long, Colleen. “Police ‘Stop-and-Frisk’ Technique Drawing Criticism.” PoliceOne.com News, October 9, 2009. Retrieved June 5, 2013, from www.policeone .com/investigations/articles/1952830-Police-stop- and-frisk-technique-drawing-criticism/.

Means, Randy, and McDonald, Pam. “How Long Is Too Long during a Terry Stop?” Law and Order, November 2009, pp. 22–24.

Means, Randy, and McDonald, Pam. “TASER and the 9th Circuit Decision.” Law and Order, April 2010, pp. 52–56.

Means, Randy, and Seidel, Greg. “Assessing Legal Validity of the Core Transaction.” Law and Order, December 2008, pp. 24–27.

Means, Randy, and Seidel, Greg. “Maintaining Proportionality and Managing Force Escalations.” Law and Order, February 2009, pp. 31–32.

Means, Randy, and Seidel, Greg. “Keys to Winning with Use of Force: A Four-Step Plan.” Tactical Response, March–April 2010, pp. 18–20.

Milazzo, Carl. “Mistaken Use of Firearm Instead of Electronic Control Weapon.” The Police Chief, December 2008, p. 12.

Missed Opportunities, Shared Responsibilities: Final Report of the Cambridge Review Committee. June 15, 2010. Retrieved June 5, 2013, from www.cambridgema .gov/CityOfCambridge_Content/documents/ Cambridge%20Review_FINAL.pdf.

“New Study Ranks Risks of Injury from 5 Major Force Options.” Force Science News, #102, July 18, 2008.

“Report Says Suspect Pursuits Yield High Fatalities.” PoliceOne.com News, April 25, 2010. Retrieved June 5, 2013, from www.policeone.com/pc_print. asp?vid=2052948.

Rivera, Ray, and Baker, Al. “Police Cite Help from Stop-and-Frisk Data in 170 Cases.” The New York Times, July 16, 2010. Retrieved June 5, 2013, from www.nytimes.com/2010/07/17/nyregion/17frisk. html?_r=1&pagewanted=print.

Rutledge, Devallis. “Updating Weapons Frisks.” Police, April 2009, pp. 66–69.

Rutledge, Devallis. “Beware of False Headlines.” Police, January 2010, pp. 64–67.

Scarry, Laura. “Escalating Events May Violate Fourth Amendment.” Law Officer Magazine, January 2008, pp. 72–75.

Scarry, Laura. “Less than Probable Cause: Protective Actions in Terry Stops.” Law Officer Magazine, May 2009, pp. 26–29.

Scoville, Dean. “Damned If You Do, Dammed If You Don’t.” Police, December 2008, pp. 34–41.

Stockton, Dale. “A Harvard Education.” Law Officer Magazine, August 2009, p. 8.

“Survey by PERF and University of South Carolina Shows Rapid Increase in CED Employments.” Subject to Debate, December 2009, pp. 1, 6.

Vennochi, Joan. “The ‘Avoidable’ Arrest.” The Boston Globe, July 11, 2010. Retrieved June 5, 2013, from www.boston.com/bostonglobe/editorial_ opinion/oped/articles/2010/07/11/the_ avoidable_arrest/.

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272 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Cases Cited Adams v. Williams, 407 U.S. 143 (1972) Arizona v. Johnson, 555 U.S. ___ (2009) Atwater v. City of Lago Vista, 532 U.S. 318 (2001) Baker v. McCollan, 443 U.S. 137 (1979) Berkemer v. McCarty, 468 U.S. 420 (1984) Brendlin v. California, 551 U.S. 249 (2007) Brower v. County of Inyo, 489 U.S. 593 (1989) Brown v. Texas, 443 U.S. 47 (1979) Bryan v. McPherson, Case No. 08-55622 (9th Cir. [CA]

2009) California v. Hodari D., 499 U.S. 621 (1991) City of Indianapolis v. Edmond, 531 U.S. 32 (2000) City of Los Angeles v. Lyons, 461 U.S. 95 (1983) Cupp v. Murphy, 412 U.S. 291 (1973) Delaware v. Prouse, 440 U.S. 648 (1979) Dunaway v. New York, 442 U.S. 200 (1979) Florida v. J.L., 529 U.S. 266 (2000) Florida v. Royer, 460 U.S. 491 (1983) Graham v. Connor, 490 U.S. 386 (1989) Harris v. Commonwealth, No. 2320-06-2, 2008 WL 301334

(February 5, 2008) Hastings v. Barnes, No. 04-5144, 2007 U.S. App. Lexis

24446 (10th Cir. 2007) Illinois v. Lidster, 540 U.S. 419 (2004) Illinois v. Wardlow, 528 U.S. 119 (2000) Kaupp v. Texas, 538 U.S. 626 (2003) Maryland v. Wilson, 519 U.S. 408 (1997) Mendenhall v. United States, 446 U.S. 544 (1980) Michigan v. Chesternut, 486 U.S. 567 (1988)

Michigan v. Long, 463 U.S. 1032 (1983) Michigan Department of State Police v. Sitz, 496 U.S. 444

(1990) Minnesota v. Carter, 525. U.S. 83 (1998) Minnesota v. Olson, 495 U.S. 91 (1990) Payton v. New York, 445 U.S. 573 (1980) Pennsylvania v. Mimms, 434 U.S. 106 (1977) Saucier v. Katz, 533 U.S. 194 (2001) Scott v. Harris, 550 U.S. 372 (2007) State v. Pluth, 157 Minn. 145, 195 N.W. 789 (1923) Tennessee v. Garner, 471 U.S. 1 (1985) Terry v. Ohio, 392 U.S. 1 (1968) United States v. Brignoni-Ponce, 422 U.S. 873 (1975) United States v. Cortez, 449 U.S. 411 (1981) United States v. Flores-Montano, 541 U.S. 149 (2004) United States v. Grigg, No. 06-30368, 2007 WL 2379615

(9th Cir. 2007) United States v. Hensley, 469 U.S. 221 (1985) United States v. Martinez-Fuerte, 428 U.S. 543 (1976) United States v. Montoya de Hernandez, 473 U.S. 531

(1985) United States v. Pavelski, 789 F.2d 485 (7th Cir. 1986) United States v. Pritchard, 645 F.2d 854 (10th Cir. 1981) United States v. Santana, 427 U.S. 38 (1976) United States v. Sharpe, 470 U.S. 675 (1985) United States v. Sokolow, 490 U.S. 1 (1989) United States v. Watson, 423 U.S. 411 (1976) Warden v. Hayden, 387 U.S. 294 (1967) Whren v. United States, 517 U.S. 806 (1996)

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273

Constitutional law is living and changes over time, and the law governing legal searches is no exception.

For example, the Belton rule allowing the automatic warrantless search of a vehicle interior incident to

arrest—a rule that stood for nearly three decades—was narrowed considerably in Arizona v. Gant

(2009), a case that highlighted the need for officers to stay current with evolving law and understand the

rationale for why they are permitted to act certain ways. Here a U.S. Customs and Border Patrol officer

searches a vehicle for contraband.

It is unreasonable for a police offi cer to look for an elephant in a matchbox.

—Legal maxim

Conducting Constitutional Searches

CHAPTER 9

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274 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Do You Know . . .

Can You Define? administrative warrant

contemporaneous

contraband

curtilage

exigent circumstances

penumbra

plain feel

plain touch

plain view

protective sweep

qualified immunity

reasonable

expectation of

privacy

remoteness

voluntariness test

waiver test

wingspan

■ What constitutes a “search” under the Fourth Amendment?

■ What limitation is placed on all searches? When general searches are

legal?

■ What limitations are placed on searches with a warrant? with

consent? in a frisk? incident to a lawful arrest?

■ What exceptions to the warrant requirement have been established?

■ What the plain feel or plain touch ruling allows?

■ What the plain view doctrine is?

■ When a vehicle can be legally searched without a warrant and the

precedent case?

■ What constitutes an exigent circumstance?

■ How reasonable expectation of privacy and the trespass doctrine

relate to searches of open fields, abandoned property, and public

places?

■ How searches at international borders and airports are viewed under

the Fourth Amendment?

■ Whether prison inmates, probationers, and parolees have full Fourth

Amendment protection?

■ How electronic surveillance is governed by the Fourth Amendment?

■ What relationship exists between electronic surveillance and one’s

reasonable expectations of privacy?

■ What is required to obtain an electronic surveillance warrant?

Introduction Promulgating law and enforcing it are awesome responsibilities that have never

been taken lightly. The consequences of good or bad law are enormous, as are the

consequences of good or bad law enforcement. Herein lies the criticality of the

Fourth Amendment for those who make the law, enforce it, and ultimately benefit

from its protection.

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Chapter 9 Conducting Constitutional Searches 275

By now you should have begun to see how search and seizure, although two

separate actions, overlap greatly. In this area of police work, where one search or

seizure under specific circumstances may not be considered “constitutional,” under

other circumstances that same search or seizure may be allowed. For instance, an

exception might apply to the situation, or a different fact may be present that now

justifies the action. There is such overlap in this area that often, where one circum-

stance does not get you what you need, another will. This also demonstrates how

fact-specific search-and-seizure analysis under the Fourth Amendment must be.

This chapter begins with the basic tenets of Fourth Amendment search analysis

and an explanation of the constitutional scope of searches. Next is a discussion of

searches with warrants and the seven general exceptions to this requirement. This

is followed by a look at border searches and “special needs” searches. The chapter

concludes with a discussion of how the Fourth Amendment has been applied to the

electronic era, including electronic surveillance, and how privacy interests are

being affected by expanding technology.

Tenets of Fourth Amendment Search Analysis Prior to 1967, courts took a property-based approach to defining a search and when

constitutional protections were implicated, holding that only when the government

physically intruded into “persons, houses, papers, and effects,” in an effort to obtain

information, did a search occur. The case illustrating this principle is Olmstead v. United States (1928), in which the Supreme Court determined that a search did not take place when government agents wiretapped telephone lines outside the sus- pect’s home and office. Because there was no physical trespass into a constitution-

ally protected area and there was not a taking of tangible items, no search was said

to have occurred, and the commands of the Fourth Amendment did not apply.

But in 1967, the definition of what constituted a search changed when, in Katz v. United States, the Court explained that the Constitution protects people, not places. In Katz, the defendant had been convicted of gambling violations, and the evi- dence against him was a conversation heard by FBI agents using an electronic

device attached to the public phone booth Katz was calling from. Katz argued

that even a public phone booth is a constitutionally protected area because the

user expects privacy and that evidence collected electronically was a violation of

the right to privacy of the person using the phone booth. The Supreme Court

agreed, holding that any form of electronic surveillance (including recording

phone calls) that violates a reasonable expectation of privacy constitutes a search. No actual physical trespass is required by the government: “The Fourth Amendment

protects people not places. . . . Wherever a man may be, he is entitled to know

that he will remain free from unreasonable searches and seizures.” The Court’s

opinion continued,

The government stresses the fact that the telephone booth from which the peti-

tioner made his call was constructed partly of glass, so that he was as visible

after he entered it as he would have been if he had remained outside. But what

he sought to exclude when he entered the booth was not the intruding eye, it

was the uninvited ear. He did not shed his right to do so simply because he made

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276 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

his calls from a place where he might be seen. No less than an individual in a

business office, in a friend’s apartment or in a taxicab, a person in a telephone

booth may rely upon the protection of the Fourth Amendment. One who occu-

pies it, shuts the door behind him and pays the toll that permits him to place a

call is surely entitled to assume that the words he utters into the mouthpiece will

not be broadcast to the world. To read the Constitution more narrowly is to

ignore the vital role that the public telephone has come to play in private

communication.

In Katz, Justice John Marshall Harlan II offered a concurring opinion that set a two-part test for defining a reasonable expectation of privacy: “First that a per-

son have exhibited an actual (subjective) expectation of privacy and, second, that

the expectation be one that society is prepared to recognize as ‘reasonable.’” Both

elements—a subjective intention to keep something private and an objectively rea-

sonable expectation of privacy—are needed for there to be a reasonable expectation

of privacy and, thus, implicate the Fourth Amendment. A reasonable expectation of

privacy is an implied right that often falls within the penumbra (shadow) of other

specified rights.

Although according to Justice Harlan’s concurrence, a search always has some

reference to “place,” Katz revised Fourth Amendment search analysis by articulat- ing that such scrutiny should address privacy rather than property and holding that such intrusion into people’s lives does violate an expectation of privacy; therefore,

in Katz, even though government agents did not physically go onto someone’s pri- vate property, a search had, indeed, occurred. This Court-created reasonable expecta- tion of privacy doctrine remained the dominant view of what defined a search for the next 45 years and was extended from electronic eavesdropping to searches of peo-

ple, their luggage (including briefcases, purses, and backpacks), where they live,

and even their bodies. Searches of homes (Payton v. New York, 1980), hotel rooms (Stoner v. California, 1964), and businesses (Maryland v. Macon, 1985), as well as meth- ods used to obtain evidence from a person’s body, such as urine testing (Skinner v. Railway Labor Executives’ Association, 1989) or the surgical removal of a bullet lodged within a person (Winston v. Lee, 1985), were all analyzed according to Katz and were held to constitute searches under the Fourth Amendment because, in each, the per-

son had a reasonable expectation of privacy. Although the trespass-based approach

set in Olmstead was commonly believed to have been replaced by the reasonable expectation of privacy analysis derived from Katz, this was, in fact, not the case.

In United States v. Jones (2012), the Court resurrected the idea that a search still includes the physical intrusion into a protected area, with Justice Antonin Scalia writ-

ing, “. . . for most of our history the Fourth Amendment was understood to embody

a particular concern for government trespass upon the areas (‘persons, houses,

papers, and effects’) it enumerates. Katz did not repudiate that understanding.” In Jones, police officers had attached a global position system (GPS) device to Jones’s vehicle to monitor his movements because they suspected he was involved in drug

trafficking. The officers had a search warrant to install and monitor the GPS, but

the specifics of the warrant were not followed. The Court did not rule on whether the

installation and monitoring of the GPS device was reasonable or not, which was the

government’s contention, but focused instead on what actions constitute a “search”

under the Fourth Amendment and remanded the case for further proceedings.

reasonable expectation of privacy a situation in which (1) a person has exhibited

an actual (subjective) expectation

of privacy and (2) that

expectation is one that society is

prepared to recognize as

reasonable

penumbra a type of shadow in astronomy with the principle

extending to the idea that certain

constitutional rights are implied

within other constitutional rights

CASE IN BRIEF

Katz v. United States (1967)

ISSUE Does it violate the Fourth Amendment to listen to a

private telephone conversation

despite the fact that no physical

intrusion into the area occurs?

RULING Yes. When a person exhibits an actual, subjective

expectation that his actions will

be private, and those actions are

ones that society sees as reason-

able, it is considered a search

when the government intrudes

on that, whether or not a physical

trespass occurs.

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Chapter 9 Conducting Constitutional Searches 277

In his opinion, Justice Scalia made it clear that both the trespass definition and

the Katz definition were valid tests for defining a “search” under the Fourth Amendment: “The Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” Justice Sonia Sotomayor’s concurrence further noted: “Katz’s reasonable-expectation-of-privacy test aug- mented, but did not displace or diminish, the common-law trespassory test that

preceded it. . . . The trespassory test applied in the majority’s opinion reflects an

irreducible constitutional minimum: When the Government physically invades

personal property to gather information, a search occurs.” Simply put, Katz never replaced the trespass definition of a search, it merely supplemented it.

There is certainly overlap between the trespass and privacy doctrines. For

example, if an officer kicks down a resident’s front door and goes inside, both tests

have been applied (a physical intrusion as well as a breach of privacy). If, on the

other hand, an officer points a thermal imaging device at a home in an effort to

gather information, they have invaded the resident’s privacy but not physically

trespassed. Therefore, when analyzing a search issue today,

you must be prepared to make two inquiries: First, did the

government physically intrude on a person, house, paper, or

effect to gather information? Second, was there a reasonable

expectation of privacy in the area that the government

infringed on? If the answer to either question is “yes,” it can

safely be stated that a search implicating the Fourth Amend-

ment has occurred.

All Fourth Amendment cases begin with the conceptual

question: Have the fundamental constitutional rules been met?

The fundamental constitutional rules are (1) there must be gov-

ernmental action; (2) the person making the challenge must

have standing, that is, the conduct either violates the challeng-

er’s reasonable expectation of privacy or their property rights have been physically intruded on in an effort to gather information; and (3) general searches are unlawful and restrict government from going beyond what is necessary. An understanding

of these three concepts, combined with the ability to analyze search-and-seizure

issues will allow an educated response when someone asks, “Can the government

do that?” The Constitution ensures the people’s rights by limiting governmental power. Therefore, people enjoy the right to be free from unreasonable searches and

seizures by the government because government is allowed to carry out these intru-

sive acts only under limited and specific circumstances.

The Scope of Searches Unrestrained general searches offend our sense of justice today, just as they did

when the Constitution was drafted. Limited searches conducted in accordance with

established constitutional guidelines serve society’s needs while protecting the

individual. No matter under what authority a search is conducted, one general

principle is crucial.

In Marron v. United States (1927) the Supreme Court stated, “The requirement that the warrants shall particularly describe the things to be seized makes general

searches under them impossible and prevents the seizure of one thing under a

CASE IN BRIEF

United States v. Jones (2012)

ISSUE Is it a considered a search when the police attach

a GPS device to a suspect’s

vehicle?

RULING Yes. When the police physically trespass on “persons,

places, houses, or effects” in

an effort to gather information,

it is a search under the Fourth

Amendment. The physical

trespass notion supplements the

reasonable expectation of privacy

doctrine.

Jones res urrect ed the aspect of a physical intrusion or tres pass in det ermining wh ether a “search” has occurred. The reasonable expect ation of privacy and the physical tres pass in an eff ort to gather information are bot h valid analyses that need to be performed to det ermine if a search has occurred.

All searches must be limited in scope. General searches are unconstitutional and never legal.

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278 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

warrant describing another. As to what is to be taken, nothing is left to the discre-

tion of the officer executing the warrant.”

The legal maxim at the beginning of this chapter refers to narrowing the

scope of a search. Looking for “an elephant in a matchbox” suggests that search-

ing for a stolen 50-inch LCD television in a dresser drawer would be unreason-

able. However, police officers may include in the warrant affidavit that they

wish to search for receipts as well as documents of title or ownership in addition

to the actual items sought. This stipulation allows them to search in much

smaller places.

Although the Fourth Amendment generally does not restrict private citizens’

actions, it does apply to all government workers. This restriction includes federal,

state, county, and local governmental bodies. Just as the FBI, state police, county

sheriff, and local police are bound by the Fourth Amendment, so are the Internal

Revenue Service (IRS), the Postal Service, fire inspectors, local building officials,

and code enforcement officials.

Searches with a Warrant In striving to limit governmental power, the Fourth Amendment begins with the

assumption that searches should be conducted with a warrant. In keeping with the

assumption that people have the right to be free from unreasonable searches and

seizures, the use of a warrant provides a presumption of reasonableness. However,

in situations in which it is unreasonable to expect privacy or there has been no

physical intrusion into a protected space on the part of the government, there is no

“search” to justify and, consequently, no warrant is needed. Subsequent decisions

by the Supreme Court have developed legitimate exceptions to the warrant require-

ment, but law enforcement may prefer to search with a warrant because the burden

is on the government agent to articulate probable cause in a warrantless search,

whereas a magistrate declares within a warrant that probable cause has already

been judicially acknowledged.

As explained in Chapter 7, government agents who have probable cause to

believe evidence of a crime is located at a specific place should go before a neu-

tral judge and swear under oath what they are looking for and where they think

it can be found, so the judge can issue a search warrant. The Fourth Amendment

requires that all searches conducted with a warrant be “based upon probable

cause supported by oath and affirmation, and particularly describing the place

to be searched and the persons or things to be seized.” See Figure 9.1 for a

sample warrant.

The framers of the Constitution no doubt chose those words carefully to pro-

hibit the general searches they found so abhorrent under British rule. Although

they recognized that the government would have a legitimate interest in enforcing

law, including executing searches, the framers limited the scope of any search to

only what was necessary and, thus, balanced society’s needs with those of the

individual.

Illinois v. McArthur (2001) dealt with whether an officer could refuse to allow a resident to enter his home without a police officer until a search warrant could

be obtained. Police officers had probable cause to believe Charles McArthur had

hidden marijuana in his home. They knocked on his door and requested consent

MYTH If the police have a search war-

rant for your house, they can look

for anything, anywhere.

REALITY Not true. The search warrant must

specify where the officers may

search and what items they are

looking for.

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Chapter 9 Conducting Constitutional Searches 279

WHEREAS, the application and supporting affidavit of

(was) (were) duly presented and read by the Court, and being fully advised in the premises.

NOW, THEREFORE, the Court finds that probable cause exists for the issuance of a search

warrant upon the following grounds: (Strike inapplicable paragraphs)

1. The property above-described was stolen or embezzled.

2. The property above-described was used as a means of committing a crime.

3. The possession of the property above-described constitutes a crime.

4. The property above-described is in the possession of a person with intent to use such

property as a means of committing a crime.

5. The property above-described constitutes evidence which tends to show a crime has been

committed, or tends to show that a particular person has committed a crime.

The Court further finds that probable cause exists to believe that the above-described property

and things (are) (will be) (at the above-described premises) (in the above-described motor vehicle)

(on the person of ).

The Court further finds that a nighttime search is necessary to prevent the loss, destruction, or

removal of the objects of said search.

The Court further finds that entry without announcement of authority or purpose is necessary

(to prevent the loss, destruction, or removal of the objects of said search) (and) (to protect the safety

of the peace officer).

NOW, THEREFORE, YOU,

THE PEACE OFFICERS(S) AFORESAID, ARE HEREBY COMMANDED (TO ENTER WITH-

OUT ANNOUNCEMENT OF AUTHORITY AND PURPOSE) (IN THE DAYTIME ONLY) (IN THE

DAYTIME OR NIGHTTIME) TO SEARCH (THE DESCRIBED PREMISES) (THE DESCRIBED

MOTOR VEHICLE) (THE PERSON OF ) FOR THE ABOVE

DESCRIBED PROPERTY AND THINGS, AND TO SEIZE SAID PROPERTY AND THINGS AND

(TO RETAIN THEM IN CUSTODY SUBJECT TO COURT ORDER AND ACCORDING TO LAW)

(DELIVER CUSTODY OF SAID PROPERTY AND THINGS TO

SEARCH WARRANT 2-1

STATE OF ANYWHERE, COUNTY OF COURT

TO:

(A) PEACE OFFICER(S) OF THE STATE OF ANYWHERE.

WHEREAS, has this day on oath, made application to the said Court

applying for issuance of a search warrant to search the following described (premises) (motor

vehicle) (person):

located in the city of , county of STATE OF Minn.

for the following described property and things: (attach and identify additional sheet if necessary)

BY THE COURT:

JUDGE OF COURT Dated , 20

COURT–WHITE COPY • PROS. ATTY.–YELLOW COPY • PEACE OFFICER–PINK COPY • PREMISES/PERSON–GOLD COPY

Hennepin Justice Edina Police Department any officer

Patrick Olson

a peace officer of the Edina Police Department

716 Sunshine Avenue, a private residence,

Edina Hennepin

One brown, 21" Panasonic Television, Serial Number, 63412X

Oscar Kuntson Justice Court

4-14 00

Figure 9.1 Sample Warrant

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280 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

to search the premises, but McArthur refused. The investigating officers told

McArthur he was to stay outside of his home and could not reenter unless accom-

panied by a police officer while they obtained a search warrant, which took about

two hours. When the warrant was issued, they entered his home and found drug

paraphernalia and marijuana, and they arrested him. He was charged with mis-

demeanor possession of those items. At trial he moved to suppress the evidence

as “fruit” of an unlawful police seizure. The Court recognized that the circum-

stances in this case were exigent and tailored to that exigency, being as limited in

time and as unobtrusive as possible. In reaching its decision, the Court balanced

both privacy and law enforcement concerns and determined that the intrusion

was reasonable.

Executing the Warrant

As discussed in Chapter 7, the warrant must be executed in a timely manner, that

is, without unnecessary delay; after being announced (if required); and without the

use of excessive force. Recall the knock-and-announce case of United States v. Banks (2003), in which the Court continued to take a case-by-case “totality of the circum-

stances” approach to deciding the constitutionality of police searches.

In Hudson v. Michigan (2006), the Court held 5–4 that a violation of the knock- and-announce rule does not automatically invoke the exclusionary rule, if deter-

rence of police misconduct outweighs the social costs. This case involved a minor

drug arrest in Detroit with officers executing a search warrant at Booker Hudson’s

residence. The officers shouted “Police, search warrant,” as they approached the

residence but did not knock. Three to five seconds later they opened the door and

entered the house. When they searched Hudson, the police found five rocks of

crack cocaine in Hudson’s pants pocket and a loaded gun in the chair in which

Hudson was sitting, as well as additional cocaine other places in the house.

At trial, Hudson moved to suppress the seized evidence because police had not

waited to enter. The trial court agreed, but the Michigan Court of Appeals reversed.

Hudson was retried, convicted, and appealed again. The Michigan Supreme Courts

upheld his conviction, after which he appealed to the U.S. Supreme Court, which

also upheld the conviction. In an opinion clearly supporting law enforcement, Jus-

tice Scalia explained the balance of interests:

The social costs to be weighed against deterrence are considerable here. In

addition to the grave adverse consequence that excluding relevant incriminat-

ing evidence always entails—the risk of releasing dangerous criminals—

imposing such a massive remedy would generate a constant flood of alleged

failures to observe the rule, and claims that any asserted justification for a no-

knock entry had inadequate support. Another consequence would be police

officers’ refraining from timely entry after knocking and announcing, produc-

ing preventable violence against the officers in some cases and the destruction

of evidence in others. Next to these social costs are the deterrence benefits. The

value of deterrence depends on the strength of the incentive to commit the

forbidden act. That incentive is minimal here, where ignoring knock-and-

announce can realistically be expected to achieve nothing but the prevention of

evidence destruction and avoidance of life-threatening resistance, dangers

which suspend the requirement when there is “reasonable suspicion” that they

CASE IN BRIEF

Illinois v. McArthur (2001)

ISSUE Does it violate the Fourth Amendment to temporarily

seize a person and restrain him

from entering his home while

officers are obtaining a search

warrant?

RULING No. In this case, the officers had a valid reason for

not allowing McArthur to enter

his home; they feared he would

destroy the drugs if allowed

to enter. Also, the seizure was

short in duration when balanced

against the legitimate needs of

the police.

CASE IN BRIEF

Hudson v. Michigan (2006)

ISSUE Does the exclusion- ary rule apply when officers

violate the knock-and-announce

rule when executing a search

warrant?

RULING No. The knock-and- announce rule is intended to

promote privacy and safety and

limit property damage. It was not

intended to suppress evidence

obtained by virtue of a search

warrant.

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Chapter 9 Conducting Constitutional Searches 281

exist. . . . Massive deterrence is hardly necessary. Contrary to Hudson’s argu-

ment that without suppression there will be no deterrence, many forms of

police misconduct are deterred by civil-rights suits, and by the consequences of

increasing professionalism of police forces, including a new emphasis on inter-

nal police discipline.

Cases that deal with search warrant issues have also assessed what actions dur-

ing the execution of a warrant are acceptable. Michigan v. Summers (1981) estab- lished that a search with a warrant includes limited authority to detain the

occupants of the premises during the search. In this case, officers arriving at George

Summers’s residence to execute a lawful search warrant for narcotics encountered

Summers leaving his house. Officers detained Summers inside the house while they

carried out their search. After locating narcotics and confirming that Summers

owned the house, the police arrested him, searched his person, and found heroin in

his coat pocket. Summers was charged with possession of heroin but moved to sup-

press the evidence as fruit of an illegal search in violation of the Fourth Amend-

ment. The trial judge granted the motion and quashed the information, and both

the Michigan Court of Appeals and the Michigan Supreme Court affirmed. The U.S.

Supreme Court, however, granted certiorari and reversed, ruling that because it

was lawful to require Summers to reenter and to remain in the house until evidence

establishing probable cause to arrest him was found, his arrest and the search inci-

dent thereto were constitutionally permissible.

Officer Smith and other officers are on their way to

execute a search warrant at a house for illegal

drugs at 2 p.m. They are driving marked police cars

and are all in police uniforms. The house is a small,

one-story house. The search warrant does not

allow for a no-knock entry.

As the officers arrive, they approach the front

of the house and see someone peek out the front

window. As they get to the front porch the officers

hear someone shouting, “It’s the police!” Then

footsteps are heard running around the inside of

the house.

Although the search warrant does not provide

for a no-knock entry, Officer Smith rushes to the

front door and kicks it open without knocking and

announcing himself. The front door is damaged.

All the officers enter the house and detain the

three occupants. Drugs, a scale, and money are

found on the kitchen table. The three people are

arrested and brought to jail.

The arrestees challenge the fact that the search

warrant did not allow for a no-knock entry, and the

officers ignored that and forced entry with no

announcement. The police argue that exigent cir-

cumstances existed to dispense with the rule and

allowed them to enter as they did.

■ What facts point to the belief that the occupants might destroy any drugs before police could seize them?

■ What is the level of “proof” required that this possibility exists?

■ Should the need to secure evidence outweigh someone’s privacy interest in their own home?

Constitutional Law in ACTION

CASE IN BRIEF

Michigan v. Summers (1981)

ISSUE Is it constitutional to detain members of a residence

during the execution of a search

warrant?

RULING Yes. Officers have a legitimate justification in

detaining the occupants of

a residence being searched

because of the needs to prevent

flight of the occupants if evidence

is found, ensure the safety of

those searching, and facilitate

an orderly search. Detaining the

occupants is a minimal intrusion

when balanced against these

justifications.

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1 5

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282 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

In Muehler v. Mena (2005), the Court determined that the use of handcuffs to secure (seize) the occupants of a residence during the execution of a search warrant

was constitutional. Under Summers, the seizure of the occupants pursuant to a search warrant is categorical, requiring no additional proof of wrongdoing, and the

use of handcuffs is reasonable if the facts permit. (As with any use of force, hand-

cuffing must be reasonable.) Under the facts of this case, the Court determined the

use of handcuffs was reasonable because the officers were searching for weapons

and violent gang members on the premises.

Another more recent case related to Summers is Bailey v. United States (2013). In this case, officers saw Bailey leave his apartment where they were planning to

execute a search warrant for a gun. Officers stopped and detained Bailey about a

mile from the apartment. Evidence was found as a result of the seizure of Bailey

and was later used to connect him to the apartment, where a gun and drugs

were found.

The Supreme Court ruled that seizing someone out of the immediate vicinity

of the location of the search warrant is unconstitutional. The Court observed

that none of the three reasons delineated in Summers for detaining someone at the scene of a search warrant applied to a seizure outside of the immediate

vicinity of the search warrant. As such, any detention so far removed must

have an independent basis, other than a detention under Summers, to be constitutional.

Conducting the Search

After officers have obtained their search warrant and gained entrance, they can

search only areas in which they reasonably believe the specified items might be

found.

If the warrant states only one specific item is being sought, the search must end

once it is located. Sometimes government agents come across items not specifically

named in the warrant but similar enough to justify those items being seized as well.

For example, if officers were executing a search warrant that specified televisions,

DVD players, MP3 players, and stereos and came across a room filled with televi-

sions, DVD players, stereos, and video cameras, they could seize the video cameras as evidence, even though not specified in the warrant because

they are similar to the other items.

Groh v. Ramirez (2004) illustrates the importance of paying attention to the details of the warrant before searching. In this

case Officer Jeff Groh obtained a warrant to search the Ramirez

residence for weapons. Both affidavit and application con-

tained a particular description of the items to be seized, but the

warrant itself did not contain such a description as required by the Fourth

Amendment. The section in the warrant that was to contain a list of items to be

seized instead described the place to be searched. The warrant was signed by

a judge.

A civil action alleging a Fourth Amendment violation was brought by Joseph

Ramirez against Groh. The district court ruled that no constitutional violation took

place and that Groh retained “qualified immunity,” meaning he was legally

immune while doing his job unless he violated a “clearly established”

qualified immunity exemption of a public official

from civil liability for actions

performed during the course of

his or her job unless they violated

a “clearly established”

constitutional or statutory right of

which a reasonable person would

have known

CASE IN BRIEF

Muehler v. Mena (2005)

ISSUE Is it reasonable to detain a person in handcuffs at

the site where a search war-

rant is being executed merely

because that person is present

during its execution?

RULING Yes. Detaining someone at the site of a search

warrant’s execution is reasonable

without any additional basis. Simply

by virtue of their presence at the

location, they may be seized and

detained under Summers. Under

the facts of this case—multiple

people present, weapons being the

object of the warrant, and violent

gang members associated with the

residence—handcuffing in addition

to the detention is reasonable.

CASE IN BRIEF

Bailey v. United States (2013)

ISSUE Is it reasonable to seize a person beyond the immediate

vicinity of where a search warrant

is being executed, to conduct the

search safely?

RULING No. Once an individ- ual has left the immediate vicinity

of the search warrant, the police

must have independent reasons

under the Fourth Amendment to

seize and detain that person.

Searches conducted with a search warrant must be limited to the spec ifi c area and spec ifi c items des cribed in the warrant.

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Chapter 9 Conducting Constitutional Searches 283

constitutional right of which a reasonable person would have known. A Ninth

Circuit Court of Appeals panel, however, reversed, and the Supreme Court agreed

that a constitutional violation had occurred and that the warrant was invalid

because it did not meet the Fourth Amendment requirement that a warrant particu-

larly describe the persons or things to be seized. Even though a judge had approved

a complete warrant, Ramirez did not know what the search was after. Thus, Groh

did not have qualified immunity from suit.

The recent case of Messerschmidt v. Millender (2012) is important here because it shows facts contrary to Groh. In this case the Court, ruled that officers were entitled to qualified immunity with regard to the warrant because, unlike Groh in which the items to be seized listed, “nonsensical[ly],” the house instead of the weapons and

even a cursory reading of the search warrant would have alerted any reasonable

officer to that error and the realization that the warrant was invalid, the search war-

rant in Messerschmidt was not so facially invalid. It would have required a careful reading and comparison to the affidavit. In addition, the warrant was reviewed by

a superior officer, a deputy district attorney, and the magistrate. No reasonable

officer would have seen any deficiency in the warrant.

The government can seize any contraband or other evidence of a crime found

during a search with a warrant, even though it was not specified. Contraband

includes anything that is illegal for people to own or have in their possession, such

as illegal drugs or illegal weapons. The contraband does not need to be described

in the warrant or be related to the crime described in the warrant. The lawful dis-

covery of additional evidence could lead to additional charges, as discussed under

the plain view doctrine.

Searches without a Warrant The Fourth Amendment prefers a warrant because it necessitates judicial review

of government action. Thus, the presumption exists that a warrantless search is

unreasonable, unlawful and, therefore, invokes the exclusionary rule, with the

resulting evidence not permitted in court. However, reasonableness itself dic-

tates that action may become necessary before the government

obtains a warrant signed by a judge. Such practical matters as

time, emergency circumstances, the probable destruction of evi-

dence, or escape of a criminal have resulted in legitimate excep-

tions being made to the general requirement of a warrant. Just

as a warrant may be challenged, warrantless searches may also

be challenged. The most frequent challenges are that the officer

did not establish probable cause or that there was sufficient time

to obtain a warrant. Nonetheless, through the development of

case law, the Supreme Court has defined the following searches

without a warrant to be reasonable under Fourth Amendment

guidelines.

Because the preceding have been recognized as lawful excep-

tions to the warrant requirement, evidence obtained in these cir-

cumstances is admissible in court ( Marshall v. Barlow’s Inc., 1978; Michigan v. Tucker, 1974).

contraband anything that is illegal for people to own or have

in their possession, for example,

child pornography, illegal drugs,

or illegal weapons

CASE IN BRIEF

Groh v. Ramirez (2004)

ISSUE Is it a violation of the Fourth Amendment to execute

a search warrant that does not

particularly describe the things

to be seized, even if they are

described in the affidavit?

RULING Yes. The Constitution clearly requires the particular

description of the items to be

seized in the warrant. This search

warrant was facially invalid, and

any reasonable officer would

know this.

MYTH All searches require a warrant.

REALITY Not true. There are many excep-

tions to the warrant requirement.

Exceptions to the warrant requirement include

■ Consent search ■ Frisks for offi cer safet y ■ Plain feel and plain view ■ Incident to arres t ■ Automobile exceptions ■ Exigent (emergency)

circumstances ■ Open fi elds, abandoned

property, and public places

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284 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Searches with Consent

If an individual gives voluntary consent for the police to search his or her person or property, the police may do so without a warrant, and any evidence found will

be admissible in court. Although consent makes searching convenient, the down-

side is the person may revoke consent at any time. Interestingly, the Court has

never required police to tell people they have a right to refuse to consent, and the

police do not have to tell motorists they are free to go before asking for consent

to search (Ohio v. Robinette, 1996). See Figure 9.2 for a waiver and consent to search form.

Government agents may conduct a search without a warrant if they are given

permission by someone with authority to do so. Usually, the only person who can

give consent is the person whose constitutional rights might be threatened by a

search. This person is said to have standing, that is, the right to object to the unrea- sonableness of a search because of a reasonable expectation of privacy. Fourth

Amendment rights are specific to the person and may not be raised on behalf of

someone else or in some abstract, theoretical way. Standing, in constitutional law,

must involve a case or controversy.

Consent to search an individual must be given by that individual. Consent to

search any property must be given by the actual owner or, as set forth in United States v. Matlock (1974), by a person in charge of that property. If more than one person owns or occupies a building, only one needs to give permission. Thus, if

two people share an apartment, all that is required is the consent from one of

WAIVER AND CONSENT TO SEARCH

The undersigned

residing at

hereby authorizes the following

named St. Paul Police Officers

to search the

(insert description of place or auto, lic. number, etc.)

owned by/or in possession of the undersigned.

I do hereby waive any and all objections that may be made by me to said search and

declare that this waiver and consent is freely and voluntarily given of my own free will and

accord.

Signed day of 20 at PM AM

Signed

Witnessed

Figure 9.2 Waiver and Consent to Search Form

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Chapter 9 Conducting Constitutional Searches 285

them (Wright v. United States, 1938). However, consent may be given for only those areas commonly used, not private space of one or the other. Even spouses

do not have totality in area of consent if one area is considered to be off-limits to

one party.

In some instances, someone else can give a valid consent. For example, in

Matlock the Supreme Court held that if a third party has common authority over the premises of items to be searched, this individual could provide government offi-

cials with a valid consent. Examples of relationships where third-party consent may

be valid include:

■ Parent/Child—A parent’s consent to search premises owned by the parent

will generally be effective against a child living on those premises. However, if

the child uses a given area of the premises exclusively, has sectioned it off, has

furnished it with his or her own furniture, pays rent or has otherwise estab-

lished an expectation of privacy, the parent may not consent to a search of that

area occupied by the child. ■ Employer/Employee—In general, an employer may consent to a search of any

part of the employer’s premises used by an employee (e.g., employees’ lockers

can be searched with the employer’s consent). Recent cases have held that a

computer’s contents are not shielded by employees’ right to privacy. ■ Host/Guest—The host, owner, or primary occupant of the premises may con-

sent to a search of the premises. Any evidence found would be admissible

against the guest. ■ Spouses—If two people, such as husband and wife, have equal rights to

occupy and use premises, either may give consent to a search.

The Supreme Court decision in Georgia v. Randolph (2006) affirmed some prior rulings regarding third-party consent but created a new holding that overturns

existing rules in many jurisdictions. In this case, Mrs. Randolph called police

about marital problems caused by her husband’s cocaine use, saying he had

drugs in the house. When police arrived, Mr. Randolph refused consent to search,

but Mrs. Randolph consented and led the police to the evidence. The state

supreme court ruled the wife’s consent invalid against her husband’s objections,

and the state appealed. The U.S. Supreme Court affirmed the state ruling that

suppressed the evidence. The Court emphasized that in all its previous cases, the

co-occupant against whom the evidence was used was not present to object.

When both occupants are present and one objects, the other cannot “override” the

co-occupant’s refusal: “A warrantless search of a shared dwelling for evidence

over the express refusal of consent by a physically present resident cannot be

justified as reasonable.”

The court has allowed, as reasonable, third-party consent searches in which an

apparent authority existed. In Illinois v. Rodriguez (1990), officers did not have an arrest or search warrant, but gained entry to an apartment with the assistance of Gail

Fischer, who represented that the apartment was “our[s]” and that she had clothes

and furniture there. Fischer unlocked the door with her key and gave the officers

permission to enter, where they were able to seize evidence of illegal drugs left in

plain view and arrest the other occupant of the apartment, Edward Rodriquez, for

possession of the illegal drugs. The trial court granted Rodriquez’s motion to sup-

press the seized evidence, holding that at the time she consented to the entry Fischer

CASE IN BRIEF

Georgia v. Randolph (2006)

ISSUE Does the consent to search given by one physically

present co-occupant prevail over

the refusal of consent by another

physically present co-occupant?

RULING No. If more than one occupant is physically pres-

ent, the refusal of any of them

prevails over the consent of the

others.

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286 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

did not have common authority because she had moved out of the apartment. The

Supreme Court, however, reversed the lower court’s decision, arguing that there

was no Fourth Amendment violation if the police reasonably believed at the time of their entry that the third party possessed the authority to consent. Thus, the Fourth

Amendment’s reasonable search requirement is satisfied when police conduct a

warrantless search of a person’s home based on the apparently authorized consent

of another and the person is later shown to not have authority to grant such a

search, as long as it is reasonable for the officers to believe that the person had

authority to grant the search, based on the totality of the circumstances.

Examples of instances when individuals cannot give valid consent to search include:

■ Landlord/Tenant—A landlord, even though the legal owner, has no authority

to offer consent to a search of a tenant’s premises or a seizure of the tenant’s

property, including children living at home but paying rent to their parent. ■ Hotel Employee/Hotel Guest—The Supreme Court extended the principles

governing a landlord’s consent to a search of tenant’s premises to include con-

sent searches of hotel and motel rooms allowed by hotel or motel employees.

In such instances, only the tenant or hotel guest can give consent. The consent

must be free and voluntary. The Supreme Court ruling in State v. Barlow, Jr. (1974) stated, “It is a well-established rule in the federal courts that a consent search is

unreasonable under the Fourth Amendment if the consent was induced by deceit,

trickery or misrepresentation of the officials making the search.”

A request for permission to search must not be stated in a threatening way. It

must not imply that anyone who does not give consent will be considered as having

something to hide. Failure to give consent cannot be used to establish probable

cause. No display of weapons or force should accompany a request to search. In

Weeds v. United States (1921), police confronted the defendant with drawn guns and a riot gun and said they would get a warrant if they needed. The Court said consent

given under these conditions was not free and voluntary. Likewise, in People v. Loria (1961) the police threatened to kick down the door of the defendant’s apartment if

he did not let them in. The court said consent was not free and voluntary.

Usually, the government should not request to search at night. In Monroe v. Pape (1961) Justice Felix Frankfurter stated, “Modern totalitarianisms have been a stark

reminder, but did not newly teach, that the kicked-in door is the symbol of a rule

of fear and violence fatal to institutions founded on respect for the integrity of

man. . . . Searches of the dwelling houses were the special object of this universal

condemnation of officer intrusion. Nighttime search was the evil in its most obnox-

ious form.” Again, unusual circumstances may require such a search.

Florida v. Jimeno (1991) held that consent can justify a warrantless search of a container in a vehicle if the police reasonably believe the suspect’s consent includes

allowing them to open closed containers. This analysis uses the “reasonableness”

line of argument, and, as discussed, what one person considers reasonable may not

be how another would interpret it. Jimeno determined that when a person gives consent to search a car, consent is being provided to search everything therein,

unless specifically restricted.

Courts typically justify the consent exception by two separate tests: (1) the

voluntariness test—the consent was obtained without coercion or promises and

voluntariness test a determination as to whether one

willingly and knowingly

relinquished his or her

constitutional rights; considers

the totality of circumstances to

determine whether consent was

given freely and truly voluntarily

CASE IN BRIEF

Illinois v. Rodriguez (1990)

ISSUE Is the consent to search valid when police reason-

ably believe that the person

granting such consent has

authority to do so, even when

they, in fact, do not?

RULING Yes. If it is reason- able to believe that the person

has common authority over the

premises such that he or she

could give consent, the consent

is valid.

CASE IN BRIEF

Florida v. Jimeno (1991)

ISSUE When consent is given to search a vehicle, does that

consent extend to closed contain-

ers found inside the vehicle?

RULING Yes, as long as the container could be reasonably

understood to be included within

the scope of person’s consent.

MYTH If you do not consent to a search,

you must have something to hide,

and that can be used against you.

REALITY Not true. If you decline to consent

to a search, that cannot be used

to support probable cause.

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Chapter 9 Conducting Constitutional Searches 287

was, therefore, reasonable, and (2) the waiver test—citizens may consent to waive

their Fourth Amendment rights. The voluntariness test considers the totality of

circumstances to determine whether the consent was given freely and truly volun-

tarily. Factors such as the age and education level of the person giving consent, the

length of the encounter, and where the encounter took place are considered as part

of the totality of circumstances.

Consent may be revoked at any point. For example, in State v. Lewis (1992) a state trooper pulled a defendant over for drunken driving. The trooper offered to

drive the defendant home, and the man, after accepting, went to his vehicle to

retrieve a bag. The trooper asked permission to check the bag for guns, and the

defendant granted it. Inside the bag the trooper found two large brown bags that

smelled of marijuana, so he asked permission to check the bags, but the defendant

refused. The trooper opened the bags anyway and found marijuana. The court

found this search violated the defendant’s Fourth Amendment right to privacy.

Although consent may be revoked at any time, if contraband was found before

the revocation of consent, probable cause to arrest that person may then exist and

a search incident to arrest could ensue, or the police might cease

their search, secure the property, detain those present, and seek a

warrant.

Even when police have an alternative justification for a search,

such as a warrant, they may ask for consent to establish “another

layer of validation” for their actions. And they may ask for this

consent even if the subject is in custody, is in handcuffs, or has

been stopped for a traffic violation and is not free to go (Means

and McDonald, 2010).

Frisks

The elements of stop-and-frisk law were discussed in Chapter 7, and frisks as a pro-

tective action taken during a lawful stop were examined in Chapter 8, but frisks are

important to include here as a crucial exception to the warrant requirement for a

legal search. Recall that if officers have a reasonable suspicion based on specific and

articulable facts that an individual is involved in criminal activity, the officers may

make a brief investigatory stop. If the officers reasonably suspect the person is pres-

ently armed and dangerous, a frisk may be conducted without a warrant (Terry v. Ohio, 1968). A frisk is allowed for the investigating officer’s safety:

When an officer is justified in believing that the individual whose suspicious

behavior he is investigating at close range is armed and presently dangerous to the

officer or to others, it would appear to be clearly unreasonable to deny the officer

the power to take necessary measures to determine whether the person is in fact

carrying a weapon and to neutralize the threat of physical harm. (Terry v. Ohio)

Factors contributing to the decision to frisk someone might include a suspect

who flees, a bulge in the suspect’s clothing, a suspect’s hand concealed in a pocket,

being in a known high-crime area, and when the suspected crime would likely

involve a weapon. Whether the frisk is lawful is based on the totality of the circum-

stances, usually not one factor alone.

Anything that reasonably feels like a weapon may then be removed and used as

evidence against the person if it is contraband or other evidence (Terry v. Ohio). If

waiver test citizens may waive their rights, but only if they

do so voluntarily, knowingly, and

intentionally

Consent to search must be voluntary. The search must be limited to the area spec ifi ed by the person granting the permiss ion. The person may revoke the consent at any time.

If a fr isk is authorized by the circumstances of an inves tigative stop, only a limited pat down of the det ainee’s outer clot hing for the offi cer’s safet y is authorized.

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288 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

an officer has specific information about where a weapon is on a person, the officer

may reach directly for it (Adams v. Williams, 1972). Similarly, a vehicle’s passenger compartment can be searched if that vehicle is stopped and the person is detained

but not arrested. Such a search would have to remain limited to the area where a

weapon could be, and it would have to be done with the belief that, as in a frisk

situation, the person is presently armed and dangerous (Michigan v. Long, 1983). Recall from Chapter 8 that passengers in a vehicle can be frisked if they are believed

to be armed and dangerous (Arizona v. Johnson, 2009). Plain feel is also considered acceptable in a frisk.

By Chao Xiong—(Minneapolis, St. Paul) Star Tribune, September 15, 2010, pp. A1, A6.

White Castle, weed and baggy pants. It has all the elements of a comedy, but

throw in a concealed handgun, a suspected drug deal and a wardrobe mal-

function, and it’s a Minnesota Court of Appeals case. . . .

St. Paul police officer Kara Breci and her partner spotted a possible drug

deal in a car at a White Castle parking lot in November 2008. They ordered

the men out of their vehicle and told them to put their hands in the air. That’s

when suspect Frank Irving Wiggins’s baggy pants, already dangerously low

at the knees, fell to the pavement.

Breci hoisted the jeans and found a .38-caliber pistol inside the front pocket.

Wiggins was eventually convicted of possession of a firearm by an ineligible

person and sentenced to five years in prison. He challenged the legality of the

pants-hoisting, with the case ultimately landing at the state court of appeals.

“This case requires us to determine the constitutionality of a novel police

procedure which, as far as we can tell, has never been reviewed on appeal by this

court or any other,” wrote Judge Kevin G. Ross in an opinion filed Tuesday. . . .

The judge wrote that Breci’s actions weren’t a search, but “incidental contact.”. . .

Breci’s actions were intended to provide Wiggins with privacy, not

deprive him of it, as a search would, Ross wrote. “We acknowledge that one

might be offended by an officer’s realigning of his pants: It is the sort of thing

that one usually prefers to do for himself,” the decision read. “Wiggins argues

that affirming the district court would encourage officers to trample the pri-

vacy of young people who participate in this baggy-pants fashion trend. The

concern is unwarranted. We are confident that our opinion will not be mis-

construed to suggest that an officer can freely meddle with a person’s cloth-

ing to the refrain ‘Pants on the ground, pants on the ground.’”

Comment: Consider what might have happened if Breci had allowed

Wiggins to reach for the pants himself.

Gun Turned Up after Hands Went Up and Pants Fell Down IN THENEWS

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Chapter 9 Conducting Constitutional Searches 289

Plain Feel and Plain Touch

The Supreme Court ruled in 1993 that police do not need a warrant to seize narcot-

ics detected while frisking a suspect for concealed weapons, as long as the narcotics

are instantly recognizable by plain feel or plain touch. The Court’s unanimous

opinion was the first time the Court authorized a warrantless pat-down type frisk

to go beyond a protective search for weapons.

In the precedent plain feel case, Minnesota v. Dickerson (1993), two police officers saw Timothy Dickerson leaving a known crack house and then, on seeing the offi-

cers, stop abruptly and walk quickly in the opposite direction. The officers decided

to stop Dickerson and investigate further. They did so, and as one officer testified

later in court: “As I pat-searched the front of his body, I felt a lump—a small lump—

in the front pocket. I examined it with my fingers and slid it, and it felt to be a lump

of crack cocaine in cellophane. I never thought the lump was a weapon.” Dickerson

was arrested and convicted on that evidence.

When the case was appealed to the Minnesota Supreme Court, however, the

conviction was reversed. The court held that the sense of touch is much less reliable

than the sense of sight and that it is far more intrusive into the personal privacy that

is the core of the Fourth Amendment. The decision was granted review by the U.S.

Supreme Court, which upheld the ruling of the Minnesota Supreme Court because

the officer did not immediately recognize the object as contraband. However, the

Court did support “plain touch” or “plain feel” in frisk situations if contraband is

plainly felt by the officer. It held that, when conducting a frisk, if officers feel some-

thing they believe to be contraband, rather than being able to seize just weapons as

previously set forth in Terry v. Ohio, it can be lawfully seized because the situation then escalates to probable cause. As the Court stated in Minnesota v. Dickerson, “The (officer’s) sense of touch, grounded in experience and training, is as reliable as per-

ceptions from the other senses. Plain feel, therefore, is no different than plain view.”

In Dickerson, the officer exceeded the scope of a lawful Terry frisk by “squeez- ing, sliding and manipulating” the object to determine whether it was contra-

band, rather than just “patting down” as authorized by Terry. These actions effectively transformed a frisk, based on reasonable suspicion, into a search,

which requires probable cause. However, stressing the importance of the ability

to immediately identify something as contraband, the Court stated in Dickerson, “If the officer, while staying within the narrow limits of a frisk for weapons, feels

what he has probable cause to believe is a weapon, contraband or evidence, the

officer may expand the search or seize the object.” Dickerson exemplifies how common law works in creating law. Even though the evidence was held inadmis-

sible in this case, the Court created a new “plain touch” doctrine, which holds the

force of law, even though Congress never addressed it, because the Supreme

Court deemed it law.

If the officer had testified that what he touched did not feel like a weapon, but

it was apparent to him, given the totality of the circumstances, including his train-

ing and experience, that the object was narcotics, evidence or other contraband, the

evidence probably would have been admissible if the initial stop and the frisk were

lawful. However, an officer may not simply feel or otherwise manipulate the lug-

gage of a traveler with no other justification (Bond v. United States, 2000), for the same reason an officer could not just walk up to someone and frisk that person with

plain feel items felt during a lawful stop and frisk may be

retrieved if the officer reasonably

believes the items are

contraband and can instantly

recognize them as such

plain touch same as plain feel

CASE IN BRIEF

Minnesota v. Dickerson (1993)

ISSUE May an officer seize evidence found while conducting

a pat frisk for weapons?

RULING Yes. First, the frisk and stop must both be based on

reasonable suspicion. Then any

subsequent finding and seizing

of contraband is constitutional as

long as, during the pat down, the

object is “immediately apparent”

to the officer as contraband.

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290 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

no justification. The action would be unconstitutional because

it violates a reasonable expectation of privacy.

Technology is enabling officers to conduct pat downs with-

out physically touching a subject. A device resembling a blow

dryer emits an ultrasound beam that penetrates clothing and

soft material and reflects a return beam off hard objects—those

made of metal, glass, or plastic. The more ultrasound reflected

back to the detector, the greater the return signal. The device

allows officers the reasonable suspicion to conduct a more

intensive search and can alert officers to any concealed weap-

ons. What the future holds will undoubtedly continue to challenge the reasonable-

ness clause of the Fourth Amendment.

Plain View Evidence

The courts recognize that expecting police officers to either ignore or to delay acting

on something illegal that they see would be unreasonable. When officers have a

right to be where they are, anything they observe in plain view is not the product

of a search, may be seized, and is admissible in court.

Means and McDonald (2009a, p. 26) note, “Law enforcement officers commonly

use the phrase ‘it was in plain view’ to explain how an officer located an item. Many

officers believe that using that phrase in that way is equivalent to saying that the

‘plain view doctrine’ applies. In fact, there are two fundamentally different princi-

ples involved. The physical sighting of an item, while it may have been plainly

visible, is only one aspect of the multifaceted plain view doctrine.”

Plain view must meet three criteria: (1) the officer is lawfully present at the place

from which the evidence can be plainly viewed; (2) the officer has a lawful right of

access to the object; and (3) the object’s incriminating character is immediately

apparent (Horton v. California, 1990). Plain view really comes down to the Court’s second criteria in Horton: does the officer have legal access to the item to seize it? For example, an officer walking on the sidewalk observes an open garage door and

inside the garage she sees a dozen marijuana plants. She meets the first criteria

(lawfully present) and the third criteria (immediately recogniz-

able), but on these scant facts, there is no constitutional access. (A

warrant would be needed to get access.) Had she been inside the

home, instead, perhaps taking a theft report from the owner when

she saw the marijuana plants in the kitchen, now she has legal

access and fulfills all three criteria.

According to Ferdico (2009, p. 570): “Lower courts have per-

mitted seizures based on ‘plain smell’ and ‘plain hearing’ analo-

gous to the plain view doctrine.” In United States v. Haley (1982), the Court held that odor was sufficient to “bring the contents into plain view.”

Until 1990 discovery of plain view evidence was also a requirement to be “inad-

vertent.” This requirement was overturned in Horton v. California (1990), which held that the inadvertence rule gave no added protection to individuals and, therefore,

eliminated it as a requirement. In Coolidge v. New Hampshire (1971) the Court ruled,

What the “plain view” cases have in common is that the police officer in each of

them had a prior justification for an intrusion in the course of which he came . . .

If, in the lawful course of a fr isk, offi cers feel somet hing that training and experience causes them to believe is contraband, that develops the probable cause required to expand the search and seize the object —plain feel and plain touch.

The plain view doct rine says that unconcealed evidence that offi cers see wh ile engaged in a lawful activity may be seized and is admiss ible in court.

plain view unconcealed evidence that officers see while

engaged in a lawful activity may

be seized and is admissible in

court

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Chapter 9 Conducting Constitutional Searches 291

across a piece of evidence incriminating the accused. The doctrine serves to

supplement the prior justification—whether it be a warrant for another object,

hot pursuit, search incident to lawful arrest or some other legitimate reason for

being present unconnected with a search directed against the accused—and per-

mits the warrantless seizure. Of course, the extension of the original justification

is legitimate only where it is immediately apparent to the police that they have

evidence before them.

For instance, if a government official is invited into a person’s home, and the

officer sees illegal drugs on the table, the drugs can be seized. Likewise, an officer

carrying out a legal act, such as executing a traffic stop or search warrant, may

seize any contraband discovered. Similarly, contraband such as marijuana fields

can be legally observed from an airplane over private property without a search

warrant. (How privacy expectations and issues of trespass or physical intrusion

relate to searches of open fields, abandoned property, and some public places is

discussed shortly.)

Even what is considered to be in plain view is in flux. Technology is having an

impact on this area of Fourth Amendment law as well, with thermal-imaging

devices being used to scan buildings for excessive heat generated, for example, by

high-intensity lights used for growing marijuana indoors. Most federal courts that

have considered this issue have ruled that use of thermal-imaging devices was not a search within the meaning of the Fourth Amendment and, therefore, did not

require a warrant (United States v. Pinson, 1994). However, in Kyllo v. United States (2001) the Supreme Court again addressed the issue of whether a search warrant

was required for police to scan a home from the street and compare that infrared

image to other neighboring buildings, ultimately using the results as probable

cause to apply for a search warrant.

In this case, Danny Lee Kyllo’s home was scanned by police from the street and

the results used to apply for a warrant. The Supreme Court reversed its position in

a 5–4 decision, holding that such an act by the police is considered a search under the Fourth Amendment and requires a warrant. The effects of this decision may

affect law enforcement even further. Because the Court questioned the use of tech-

nology when gathering information about the building’s interior from the outside,

future cases are likely to challenge law enforcement’s use of any technology-aided

efforts when intruding upon a reasonable expectation of privacy. Heretofore, obser-

vations from a public place have been held reasonable, and the courts have also

ruled that officers may use visual “enhancements” such as flashlights and binocu-

lars. But Kyllo has challenged this idea when such tools as infrared-imaging equip- ment are used to look “inside” a home. The Court’s apparently bright-line rule is

that use of thermal imagers directed at a home constitutes a search requiring a

warrant or, at least, probable cause. However, the Court also noted that for a tech-

nological scan to be in violation of the Fourth Amendment, the device must not be

in general public use without explaining what constitutes “general public use.”

This leaves open a challenge regarding whether thermal imaging is not in “general

public use.” For example, a portable infrared camera has been developed to detect

moisture accumulation, targeted for use by roofing, insulation, and electrical con-

tractors. Clearly, there is growing potential for such devices to be accessible to the

general public.

MYTH For plain view to apply, the

officers must accidently or inad-

vertently see the contraband.

REALITY Not true. As long as the officers

are where they can legally be,

recognize the item as contraband

or evidence, and have lawful

access to it, they can seize it.

CASE IN BRIEF

Kyllo v. United States (2001)

ISSUE Is it a search under the Fourth Amendment to aim

a thermal imaging device at a

home to gather information?

RULING Yes. It is a search governed by the Fourth Amend-

ment when the police use a

device not in use by the general

public to discover information

about the interior of a private

home that would be known other-

wise only by a physical intrusion.

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292 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Imagine the framers of the Constitution reading Kyllo v. United States. Although the concept of such technology could not have been imagined at the time the Con-

stitution was drafted, it still serves as the basis for determining when government

has gone too far and to secure the people’s rights. Kyllo also exemplifies how the law of criminal procedure can change. Future cases may well continue to mold the

area of warrantless search law.

Searches Incident to Lawful Arrest

After a person has lawfully been taken into custody by a police officer, U.S. law

recognizes the necessity of permitting a complete search. First, officer safety

requires that any weapon on or near the defendant be located. Second, any evidence

or other contraband should be recovered. Although a full search is permissible inci-

dent to lawful arrest, how far can such a search go? The more intrusive or extreme

a search may be, the greater the necessity must be before a judge will authorize it.

Assume during this discussion that all arrests are legal; if not, the exclusionary

rule would prevent any evidence obtained during the search from being used in

court. If an arrest is legal, what kind of search can be conducted? The precedent case

is Chimel v. California (1969), in which police had an arrest warrant for Ted Chimel before they thoroughly searched his home. However, the evidence found during

the search was declared inadmissible. The Supreme Court said,

When an arrest is made, it is reasonable for the arresting officer to search the

person arrested to remove any weapons that the latter might seek to use to resist

arrest or effect an escape.

It is entirely reasonable for the arresting officer to search for and seize any

evidence on the arrestee’s person in order to prevent its concealment or destruc-

tion and the area from within which the arrestee might gain possession of a

weapon or destructible evidence.

The key phrases in this statement are the arrestee’s person and the area from within which the arrestee might gain possession. The Court described this area as within the person’s immediate control—meaning within the person’s reach (also defined as

the person’s wingspan). The fact that the suspect is handcuffed does not restrict the

scope of the search. The area remains as if the suspect was not handcuffed because

the belief that the suspect could access a weapon or hidden contraband that had

been within reach is reasonable. This is an area scholars are watching closely, with

the current speculation being that searches of the area around an arrestee might

eventually be limited by the Court for the same reasons articulated in Gant, espe- cially if the person is secured in handcuffs.

The issue of contemporaneousness is important when discussing searches inci- dental to a lawful arrest. In James v. Louisiana (1965), the defendant was arrested for a drug offense, taken to his home, well away from the arrest site, and searched.

The Supreme Court held the resulting evidence was not admissible because a

search “can be incident to an arrest only if it is substantially

contemporaneous with the arrest and is confined to the imme-

diate vicinity of the arrest” [emphasis added]. Case law makes

clear that the farther away from the area under the defendant’s

immediate control, the less likely a search incident to the arrest

will be considered lawful.

wingspan the area within a person’s reach or immediate

control

contemporaneous a concept that holds a search can

be incident to an arrest only if it

occurs at the same time as the

arrest and is confined to the

immediate vicinity of the arrest

CASE IN BRIEF

Chimel v. California (1969)

ISSUE What is the permissible scope of a search incident to

arrest?

RULING A valid, custodial arrest allows an officer to search

the arrestee and the area imme-

diately surrounding the arrestee

to secure any weapons that could

be used or any evidence that

might be concealed or destroyed.

Searches aft er an arres t must be contemporaneous and must be limited to the area within the person’s reach (Chimel).

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Chapter 9 Conducting Constitutional Searches 293

(Associated Press, May 2, 2013)

TALLAHASSEE, Fla.—The Florida Supreme Court on Thursday ruled that a

police search of an arrested person’s mobile phone without a warrant is

unconstitutional.

The court ruled 7–2 in a case out of Jacksonville, overruling the 1st District

Court of Appeals.

But the majority opinion, penned by Justice R. Fred Lewis, noted it applies

specifically to searches after the cellphone has been “separated from the per-

son arrested.”

“Our decision is narrowly limited to the legal question and facts with

which we were presented, and we are confident that law enforcement will

understand the limited scope of our holding,” it said.

Officers rightly took the cellphone of the defendant, Cedric Smallwood,

while he was being detained in the back of a patrol car, the majority said.

But “a warrant was required before the information, data, and content of

the cellphone could be accessed and searched,” according to its opinion.

The dissenters, Chief Justice Ricky Polston and Justice Charles T. Canady,

noted that four federal appeals courts have ruled that searching a cellphone

found on someone arrested is “within the proper scope of a search (after an)

arrest.”

“The contrary view adopted by the majority here holds the potential

to work much mischief in Fourth Amendment law,” according to the dissent.

The Fourth Amendment protects against unreasonable searches and

seizures.

The majority’s ruling was hailed on both sides of the political spectrum in

Florida.

“The intimate details of our lives are on our cellphones, including matters

that go far beyond what the police may be investigating and have any interest

in,” said Howard Simon, executive director of the American Civil Liberties

Union of Florida.

“The police should not have the right to rummage through our lives with-

out limits set by a court as specified in a warrant,” Simon added.

State Sen. Joe Negron, a Stuart Republican, called it “an affirmation of the

right to privacy.” This year, Negron shepherded a bill—later signed into law

by Gov. Rick Scott—that limits Florida law enforcement agencies’ use of

drone aircraft.

“Our state constitution has a specific provision in it that protects privacy,”

he said. “I would support a state standard being higher than the minimum

requirements.”

“Florida Court Rules Cellphone Search without a Warrant Is Unconstitutional” IN THENEWS

(Continued)

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294 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Two bills (HB 797 and SB 846) submitted this legislative session sought to

put into law that cellphones couldn’t be searched without a warrant. They

both passed through committees, but didn’t make it to either floor.

Smallwood was arrested and charged in a January 2008 convenience store

robbery.

A police officer took his cellphone and went through the photos on it,

finding pictures of Smallwood and his fiancee holding a bundle of cash and

one of a “black and silver handgun next to a fanned-out stack of money,” the

opinion said.

The defense argued that although prosecutors later got a warrant before

the trial to use the photos as evidence, Smallwood had a reasonable expecta-

tion of privacy in the information stored on his cellphone.

The police “search was not conducted for the purpose of preserving evi-

dence,” the court said, nor could Smallwood have used the phone as a weapon.

Smallwood was later convicted on charges of robbery and possession of a

firearm by a convicted felon. He was sentenced to a total of 65 years.

“Despite the presence of evidence of guilt, we have no choice but to hold

that Smallwood is entitled to a new trial because there is no reasonable pos-

sibility that the improperly admitted photos did not contribute to his convic-

tion,” the court wrote.

The U.S. Supreme Court has ruled that searches at the time of arrest are

OK without a warrant, “even if it is unlikely that the arrestee has a weapon

or evidence related to the crime on his person,” the court said.

But that was before the advent of mobile phones, many like “interactive,

computer-like devices,” and not “static, non-interactive container(s),” the

Florida Supreme Court opinion said.

“The most private and secret personal information and data is contained

in or accessed through small portable electronic devices,” the opinion said.

“Indeed, many people now store documents on their equipment that also

operates as a phone that, twenty years ago, were stored and located only in

home offices, in safes, or on home computers. . . .”

The case is Smallwood v. Florida, No. SC11-1130.

In 1973, however, the Supreme Court expanded the scope of searches allowed

after arrests in United States v. Robinson. The case involved a full-scale search of an individual arrested for a moving traffic violation. The officer inspected the contents

of a cigarette package found on Willie Robinson and discovered illegal drugs. The

drugs were admitted as evidence, with the Court stating,

It is the fact of the lawful arrest which establishes the authority to search, and we

hold that in the case of a lawful custodial arrest a search of the person is not only

an exception to the warrant requirement of the Fourth Amendment, but is also a

“reasonable” search under that Amendment.

Note that this offense allowed for a full custodial arrest and it was only after the arrest that the search became justified. Simply being stopped and issued a

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Chapter 9 Conducting Constitutional Searches 295

speeding ticket does not justify a full-scale search; the search must be incident to

an arrest.

Not all states follow this ruling, however. For example, the Hawaiian Supreme

Court, based on its state constitution, limits the warrantless search after a custodial

arrest to disarming the person if the officers believe the arrestee to be dangerous

and searching for evidence related to the crime for which the person was arrested

(State v. Kaluna, 1974). Seizures of items from the body, such as hair samples or fingernail clippings, are

usually allowed without a warrant incident to arrest if reasonable and painless

procedures are used (Commonwealth v. Tarver, 1975). During a full search of an arrestee, anything on the person’s body may be searched and seized if evidentiary

or unlawful. This evidence includes a person’s wallet or purse, which according to

United States v. Molinaro (1989) may be seized and gone through at the time of arrest. Even the numbers on a cell phone are “searchable” incident to a lawful arrest

(United States v. Finley, 2007). Anything arrestees have under their immediate control may be searched and seized, even if unrelated

to whatever criminal act they are suspected of committing.

Students should be mindful that this area of law is undergoing

change, and the courts, to date, are split on this issue: some have

allowed for the search of cell phones incident to arrest, and others

have not. In United States v. Wurie (2013), the court discussed the split in opinions and concluded that a search of a cell phone

exceeded the boundaries of the Fourth Amendment search-inci-

dent-to-arrest exception.

Even when a full body search may be lawful, police might still

be found to have gone too far. This area of law is still being

shaped. Since the Chimel and Robinson cases, state courts have not always been will- ing to condone full-body searches for all offenses and have found some unreason-

able. When the offense is petty, such as a traffic offense or other offenses routinely

handled by citation rather than formal booking, some courts have held that police

cannot conduct full-body searches.

The issue of remoteness may also determine whether a search is unreasonable.

In United States v. Chadwick (1977), the Court held that the search of seized luggage or other personal belongings not immediately associated with the arrestee’s body

or under his or her immediate control will not be allowed if that search is remote in

time and place from the arrest and no emergency exists. In Chadwick, federal narcot- ics agents had probable cause to arrest the defendants and seize a footlocker they

had placed in the trunk of a car. An hour and a half after the arrest, the agents

opened the footlocker and found marijuana. The Supreme Court stated,

The potential dangers lurking in all custodial arrests make warrantless searches

of items within the “immediate control” area reasonable without requiring the

arresting officer to calculate the probability that weapons or destructible evi-

dence may be involved. . . . However, warrantless searches of luggage or other

property seized at the time of an arrest cannot be justified as incident to that

arrest either if the search is remote in time and place from the arrest . . . or no

exigency exists. Once law enforcement officers have reduced luggage or other

personal property not immediately associated with the person of the arrestee to

remoteness regarding the unreasonableness and

unlawfulness of searches of

seized luggage or other personal

belongings not immediately

associated with the arrestee’s

body or under his or her

immediate control

CASE IN BRIEF

United States v. Robinson (1973)

ISSUE Does the Fourth Amendment allow for a full

search of a person after a cus-

todial arrest, even if the officer

does not fear for his safety or

believe that evidence might be

destroyed?

RULING Yes. All that is required for a full search of a

person is a lawful, custodial

arrest based on probable cause.

No additional justification is

required.

A search incident to lawful arres t allows seizure of property or containers not immediately connect ed with the arres tee’s body but under his or her immediate control, including backpacks, briefcases , lugg age, or ot her packages .

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296 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

their exclusive control, and there is no longer any danger that the arrestee might

gain access to the property to seize a weapon or destroy evidence, a search of

that property is no longer an incident of the arrest.

The Chadwick Court did, however, include in their opinion that a warrantless search might be reasonable if some emergency situation existed, stating, “Of course,

there may be other justifications for a warrantless search of luggage taken from a

suspect at the time of his arrest; for example, if officers have reason to believe their

luggage contains some immediately dangerous instrumentality, such as explosives,

it would be foolhardy to transport it to the station house without opening the lug-

gage and disarming the weapon.”

Illinois v. Lafayette (1983) established that police can search the personal effects of a person under lawful arrest if it is standard procedure during booking and

jailing. Maryland v. Buie (1990) allowed a limited protective sweep by officers dur- ing an arrest in a home for the officers’ safety (to determine whether anyone else

was present). The Court held,

The Fourth Amendment permits a properly limited protective sweep in conjunc-

tion with an in-home arrest when the searching officer possesses a reasonable

belief based on specific and articulable facts that the area to be swept harbors an

individual posing a danger to those on the arrest scene. . . .

We should emphasize that such a protective sweep, aimed at protecting the

arresting officers, if justified by the circumstances, is nevertheless not a full

search of the premises, but may extend only to cursory inspection of those

spaces where a person may be found.

Thus the two additional options to Chimel, as determined in Buie, for protective searches incident to in-home arrests are:

■ Without any suspicion that anyone dangerous is hiding in the home, arresting officers can, nevertheless, look into immediately adjoining spaces large

enough to conceal a potential assailant, from which an attack could be imme-

diately launched. ■ With reasonable suspicion that someone in the home might endanger officers

during the arrest or as they exit the property, officers can conduct a “protec-

tive” sweep of the entire premises, again looking any into areas where a per-

son could be concealed (Rutledge, 2009a).

In other words, if the search incident to an in-home arrest expands beyond the

rooms immediately adjacent to the location where the arrest is occurring, to include

spaces on other levels of the home, officers must be able to articulate in their reports

and in their testimony a reasonable suspicion that a potential attacker was con-

cealed within the home (Rutledge, 2009a).

Use of Force in Searching an Arrested Person When government agents

search a person incident to arrest, they may use reasonable force to protect them-

selves, as well as to prevent escape or the destruction or concealment of evidence,

as discussed in Chapter 8. This permission does not apply to the more invasive body

searches for evidence but the reasonable force to control the situation, including

stopping the person from destroying or hiding evidence that has been, for exam-

ple, put into his or her mouth to be swallowed is allowed. In Salas v. State (1971),

protective sweep a limited search made in conjunction with

an in-home arrest when the

searching officer possesses a

reasonable belief based on

specific and articulable facts that

the area to be swept harbors an

individual posing a danger to

those on the arrest scene

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Chapter 9 Conducting Constitutional Searches 297

when a police officer applied a choke hold on the suspect, forcing him to spit drugs

out of his mouth, the court allowed the drugs to be admitted as evidence. The rea- sonableness of the police action determines the lawfulness of it.

Searching People Other Than the Arrested Person When a person is

arrested while with someone else, the associate might be logically assumed to have

weapons or contraband. However, searches of people who accompany an arrestee

must be supported by an independent basis; in other words, the officer must

develop reasonable suspicion or probable cause specific to the companion. A search

is not justified simply because “you were with Arrestee X, so now I can search you,

too.” Such searches are limited to a frisk when the officer reasonably believes the

companion may be dangerous or might destroy evidence, and then only if that

person was in the immediate area of the arrest (United States v. Simmons, 1977). Logically, the area under the companion’s immediate control may also be searched

(United States v. Lucas, 1990).

Searching the Vehicle of an Arrested Person The landmark case for the

warrantless search of a vehicle incident to an arrest is New York v. Belton (1981). This decision was considered a “bright-line rule” for police searches of a vehicle follow-

ing the arrest of a driver or passenger (Rutledge, 2009c, p. 68). In this case, the

Supreme Court said,

When a policeman has made a lawful custodial arrest of the occupant of an

automobile, he may, as a contemporaneous incident of that arrest, search the

passenger compartment of that automobile.

It follows from this conclusion that the police may also examine the contents

of any containers found within the passenger compartment, for if the passenger

compartment is within reach of the arrestee, so also will containers in it be

within his reach.

The Court further defined a “container” as any object that can hold another

object, including “Closed or open glove compartments, consoles or other recepta-

cles located anywhere within the passenger compartments, as well as luggage,

boxes, bags, clothing and the like.” They added that only the vehicle’s interior can

be searched incident to arrest, not the trunk. The traditional interpretation that, for three decades, supported the bright-

line rule under Belton has since been narrowed. In Arizona v. Gant (2009), the Supreme Court reduced law enforcement’s authority to search the passenger

compartment of a vehicle incident to arrest. In this case Rodney Gant was arrested

in his driveway, after parking and exiting his vehicle, for driving with a sus-

pended license. After getting out of his car, Gant was arrested immediately, hand-

cuffed, and placed into the back of a patrol car. Officers then returned to search

his vehicle incident to the arrest and found a gun and a bag of cocaine in a jacket

in the backseat. Gant was charged with and convicted of possession of narcotics

for sale and possession of drug paraphernalia. He appealed on the basis that the

warrantless search of his vehicle was a Fourth Amendment violation. The Arizona

Supreme Court agreed that the warrantless search of Gant’s vehicle was unrea-

sonable because the scene was secure because Gant was in custody and unable to

pose a threat to the officers or to destroy evidence. The U.S. Supreme Court

affirmed this decision.

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298 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Gant provides an excellent example of why police officers must understand the rationale behind why they are permitted to perform certain actions: “The Gant deci- sion changes the landscape dramatically with regard to an officer’s authority to

conduct a warrantless search of a vehicle incident to arrest as a matter of routine. In

short, the bright-line rule allowing automatic searches of vehicles incident to the

arrest of an occupant [New York v. Belton, 1981] has been narrowed to allow such a search only if the officer has a reasonable belief that the arrestee can gain access to

the vehicle or that evidence of the crime of arrest will be found in the vehicle”

(Judge, 2009, p. 12). Basically, the right to search a vehicle incident to the arrest of

one of its occupants (via Belton) is no longer automatic (via Gant). In Gant, the Court rejected a broad reading of Belton, relying instead on param-

eters set forth in Chimel and explaining: “Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police

entitlement, and it is anathema to the Fourth Amendment to permit a warrantless

search on that basis.” Using the Chimel rationale, the Court held that police are authorized to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment

at the time of the search. The second circumstance under which officers are justified

to search a vehicle incident to arrest is when it is reasonable to believe that evidence

relevant to crime for which the occupant was arrested might be found in the vehi-

cle. This second circumstance, established in Thornton v. United States (2004), did not apply in Gant because he was arrested for driving on a suspended driver’s license, and it was unreasonable to believe that any evidence related to that offense would

be found inside the vehicle. Gant does, however, leave open other search doctrines that may apply instead of searches incident to arrest. Many of the other exceptions

continue to apply, as do probation and parole searches (Wallentine, 2009).

CASE IN BRIEF

Arizona v. Gant (2009)

ISSUE Does the Fourth Amendment allow an automatic

search of the passenger com-

partment of a car incident to the

arrest of a recent occupant?

RULING No. Only if the arrestee is unsecured and within

reaching distance or it is reason-

able to believe there is evidence

of the crime of arrest in the car

may the passenger compartment

be searched incident to arrest.

Officer Singh is patrolling the neighborhood in his

squad car. He sees a car run through a red stoplight

without even slowing down, so he follows the car

and pulls it over for the traffic violation.

Officer Singh talks with the driver, who hands

the officer his driver’s license. Officer Singh walks

back to his squad and checks the driver’s license

status on the squad computer. When the status

comes back as valid, the officer is notified that the

driver has a felony warrant.

Officer Singh returns to the car and arrests the

driver for the outstanding warrant. The officer hand-

cuffs the driver and conducts a search of the driver

incident to arrest, not finding any contraband or

evidence. Officer Singh has the driver sit in the back

of the squad car and then returns to the driver’s car.

The officer then conducts a search of the vehicle

incident to arrest and searches the entire passenger

compartment, locating a stolen handgun under the

driver’s seat.

■ Was the search of the car incident to arrest valid?

■ Did the search meet the criteria set forth in Gant?

■ Would the result be different if the driver had been arrested for robbing a convenience store that happened an hour before?

Constitutional Law in ACTION

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Chapter 9 Conducting Constitutional Searches 299

Justification to conduct a search incident to arrest of a vehicle is not present

when the vehicle has been stopped for a traffic violation and the driver merely

issued a citation, as was the case in Knowles v. Iowa (1998). Patrick Knowles was stopped for speeding (43 mph in a 25-mph zone). Although Iowa law allowed the

officer the option of arrest, he chose instead to issue a citation and, subsequently,

conducted a full search of the vehicle without Knowles’s consent. The search pro-

duced a bag of marijuana and a pipe, and Knowles was arrested and charged with

violating Iowa’s controlled substances law.

Although Iowa law stated that issuance of a citation in lieu of an arrest “does

not affect the officer’s authority to conduct an otherwise lawful search,” the U.S.

Supreme Court effectively struck down the law as unconstitutional, finding that it

violated the Fourth Amendment. Knowles v. Iowa made clear that only a lawful cus- todial arrest justifies a warrantless search incident to arrest. Merely having probable

cause to arrest, or issuing a citation when an actual arrest does not occur, does not

justify a search.

When an officer may proceed with a vehicle search incident to arrest was

addressed in Thornton v. United States (2004). In this case, Thornton pulled his vehicle over, got out, and was then arrested. The officer proceeded to search

his car and found a gun. Thornton claimed the search was unconstitutional

because he was arrested outside the car. The Court held the fact that he had exited

the car made no difference because it was still considered to have been under

his control. A summary of allowed police actions regarding searches of stopped

vehicles and their occupants is given in Table 9.1.

Inventory Searches Suspects to be jailed are subject to a warrantless search.

This search serves two purposes. First, it protects the prisoner’s personal property

in that the property is all listed and then held in a safe place until the prisoner is

released. Second, it protects officers and other prisoners and helps ensure that no

weapons or illegal drugs will be taken into the jail.

In United States v. Edwards (1974) the Court stated, “Once the accused is law- fully arrested and is in custody, the effects in his possession at the place of

detention that were subject to search at the time and place of his arrest may law-

fully be searched and seized without a warrant even though a substantial period

of time has elapsed between the arrest and subsequent administrative process-

ing, on the one hand, and the taking of the property for use as evidence, on

the other.”

CASE IN BRIEF

Knowles v. Iowa (1998)

ISSUE Is a search of a vehicle incident to arrest by virtue of a

traffic citation valid under the

Fourth Amendment?

RULING No. The issuance of a traffic citation does not

concern the same issues, such

as detecting a hidden weapon

or preserving evidence that may

be destroyed, that exist in a full

custodial arrest situation.

Table 9.1 Summary of Allowed Police Actions Regarding Searches of Stopped Vehicles and Their Occupants

Action—Under most circumstances, officers may Precedent case

Order both the driver and any passengers out of a vehicle Pennsylvania v. Mimms (1977)

Maryland v. Wilson (1997)

Perform a pat down of a driver and any passengers on a reasonable suspicion they may be armed and dangerous Terry v. Ohio (1968)

Conduct a “Terry pat down” of the passenger compartment of the vehicle on a reasonable suspicion that an

occupant is dangerous and may gain immediate control of a weapon

Michigan v. Long (1983)

Conduct a pat down of passengers in a vehicle stopped for a traffic violation, even if the passenger was being

questioned on a matter unrelated to the traffic stop

Arizona v. Johnson (2009)

Conduct a full search of the passenger compartment, including any containers therein, pursuant to a custodial arrest

only if the officer has a reasonable belief that the arrestee can gain access to the vehicle or that evidence of the

crime of arrest will be found in the vehicle

Arizona v. Gant (2009)

a d sw

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300 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Chief Justice Warren E. Burger wrote in Illinois v. Lafayette (1983), “It is entirely proper for police to remove and list or inventory property found on the person or

in the possession of an arrested person who is to be jailed. A range of governmental

interests supports an inventory process.” An impounded vehicle can be inventoried

for the same reasons, as discussed shortly.

The Automobile Exception

A seizure occurs whenever a vehicle is stopped, and so Fourth Amendment prohibi- tions against unreasonable search and seizure apply. However, because of their

mobility, automobiles and other vehicles may need to be searched without a war- rant. This so-called automobile exception has arisen because for law enforcement

officers to expect suspects to voluntarily remain in place while the officers returned

to the station to prepare the warrant application and then find a judge to sign it

would be unreasonable. Detaining suspects that long would also be unreasonable.

This exception, like the others, is not difficult to understand if the underlying rea-

son for it is kept in mind. The automobile exception simply states that if a govern-

ment agent has probable cause to believe the vehicle contains contraband or

evidence of a crime, no warrant is needed.

The precedent for a warrantless search of automobiles came from Carroll v. United States (1925). During Prohibition in the 1920s, among the 1,500 agents pursu- ing bootleggers were two federal agents posing as buyers in a Michigan honky-

tonk. Two bootleggers, George Carroll and John Kiro, were somewhat suspicious.

They said they had to go get the liquor and would return in about an hour. They

called later to say they could not return until the next day, but they never appeared.

The agents resumed surveillance of a section of road between Grand Rapids and

Detroit known to be used by bootleggers. Within a week after their unsuccessful

buy, the agents recognized Carroll and Kiro driving by. They gave chase, but lost

them. Two months later they again recognized Carroll’s car, pursued it and overtook

it. The agents were familiar with Carroll’s car, recognized Carroll and Kiro in the

automobile, and believed the automobile contained bootleg liquor. A search

revealed 68 bottles of whiskey and gin, most behind the seats’ upholstery, where the

padding had been removed. The contraband was seized and the two men arrested.

Carroll and Kiro were charged with and convicted of transporting intoxicating

liquor. Carroll’s appeal, taken to the U.S. Supreme Court, resulted in a landmark

decision defining the rights and limitations for warrantless searches of vehicles:

If the search and seizure without a warrant are made upon probable cause, that

is, upon a belief, reasonably arising out of circumstances known to the seizing

officer, that an automobile or other vehicle contains that which

by law is subject to seizure and destruction, the search and

seizure are valid.

Over the past several decades, the courts have modified

their approach from the original rationale set forth in Carroll, with the second requirement—exigency produced by a vehicle’s

mobility—falling by the wayside. Beginning with Chambers v. Maroney (1970), the emphasis by the courts has been on the existence of probable cause, with no requirement than an exi-

gency exists. In Chambers, the Court held that a vehicle may be

CASE IN BRIEF

Carroll v. United States (1925)

ISSUE Is it constitutional to search a motor vehicle without a

search warrant but with probable

cause?

RULING Yes. A motor vehicle on the public roads may be

searched with probable cause,

and there is no requirement to

get a search warrant.

Carroll v. United States (1925) es tablished that vehicles can be searched without a warrant, provided (1) there is probable cause to believe the vehicle’s contents violate the law, and (2) the vehicle would be gone before a search warrant could be obtained.

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Chapter 9 Conducting Constitutional Searches 301

searched without a warrant if probable cause is present, and that if probable cause

exists for a search at the scene, it also exists if the search is done at a different location

later. In other words, it was constitutional to perform a delayed search as well.

With mobility or exigency no longer a requirement, all that is presently neces-

sary for a warrantless search of a vehicle to be valid is that law enforcement offi-

cers have probable cause to believe the vehicle contains contraband or evidence.

Recall from Chapter 7 that probable cause to search means officers reasonably believe, based on the totality of the circumstances, that evidence, contraband, or

other items sought are where police believe these items to be. In Maryland v. Dyson (1999), the Court again supported its previous decisions regarding motor vehicle

searches by allowing police to search without a warrant when probable cause

exists. In this case, Kevin Dyson was stopped by a deputy sheriff who had

received a reliable tip, including the make, model, color, and license plate of a

vehicle suspected of transporting a sizeable amount of cocaine. Dyson argued the

evidence should have been suppressed because there was no exigency to the

search and no warrant was obtained to search the vehicle. The Court relied on

Carroll v. United States (1925) in reaffirming the existence of the motor vehicle exception to the warrant requirement when probable cause exists, adding that

exigency need not exist.

If police have legally stopped a vehicle and have probable cause to believe the

vehicle contains contraband, they can conduct a thorough search of the vehicle,

including the trunk and any closed packages or containers found in the vehicle or

the trunk. However, the scope of the search must be reasonable and limited to what

the officer has probable cause to look for. For example, if the officer has probable

cause to believe the vehicle contains a stolen television, it is not reasonable to search

the glove box or a purse inside the vehicle. In United States v. Ross (1982), the Court held that when a police officer has probable cause to believe evidence of a crime is

concealed in an automobile, the officer may conduct a “search as broad as one that

could be authorized by a magistrate issuing a warrant. . . . If probable cause justifies

the search of a lawfully stopped vehicle, it justifies the search of every part of the

vehicle and its contents that may conceal the object of the search.”

In California v. Acevedo (1991), the Court held that if police officers have probable cause to believe a container in an automobile holds contraband or evidence of a

crime, a warrantless search of the container is justified, even if probable cause to

search the entire vehicle for that same evidence or contraband has not been estab-

lished. Acevedo was an attempt to reconcile discrepancies in previous contradictory rules governing searches of closed containers in vehicles that had, for years, con-

fused courts and police officers and impeded effective law enforcement:

Until today, this Court has drawn a curious line between the search of an auto-

mobile that coincidentally turns up a container and the search of a container that

coincidentally turns up in an automobile. The protections of the Fourth Amend-

ment must not turn on such coincidences. We therefore interpret Carroll as pro- viding one rule to govern all automobile searches. The police may search an

automobile and the containers within it where they have probable cause to

believe contraband or evidence is contained.

Wyoming v. Houghton (1999) extended the scope of such searches to include the personal effects of passengers in the vehicle, again within the limits of

CASE IN BRIEF

Maryland v. Dyson (1999)

ISSUE Does the Fourth Amendment require probable

cause and the existence of an

exigency to search a car without

a warrant?

RULING No. All that is required to search a car is

probable cause to believe that it

contains evidence or contraband.

An exigency is not necessary.

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302 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

reasonableness. The Court noted that the government interest in effective law

enforcement would be substantially impaired without the ability to search pas-

sengers’ belongings because (1) a passenger may have an interest in concealing

evidence of criminal activity in collusion with the driver, and (2) a criminal may

hide contraband in a passenger ’s belongings as readily as in other containers in

the car.

In Illinois v. Caballes (2005), the Court held that having a police narcotics-detec- tion dog simply walk around a vehicle that had been stopped for speeding is not

unconstitutional. In this case, the fact that the suspect was stopped only for a traffic

violation did not prevent another officer from having the dog walk around the car,

and the dog’s alert of narcotics provided sufficient probable cause to then search it.

Inventory Searches of Impounded Vehicles Police officers can legally tow

and impound vehicles for many reasons, including vehicles involved in accidents,

parked in a tow-away zone, or abandoned on a highway. When the police impound

a vehicle for a legitimate reason, they may lawfully conduct an inventory search.

Because the vehicle is now in police custody, officers have a duty to ensure personal

property is accounted for. If contraband or evidence is found, it will be admissible

in court. Although inventory searches are more administrative, rather than a tradi-

tional Fourth Amendment search for something illegal, these searches still meet the

reasonableness requirement.

The precedent case on inventory search is South Dakota v. Opperman (1976). Don- ald Opperman’s illegally parked car was towed to the city impound lot and inven-

toried. During the routine inventory, a bag of marijuana was found in the unlocked

glove compartment. The Supreme Court concluded that the inventory was not

unreasonable under the Fourth Amendment, noting,

These procedures [inventory of impounded vehicles] developed in response to

three distinct needs: the protection of the owner’s property while it remains in

police custody; the protection of the police against claims or disputes over lost

or stolen property; and the protection of the police from potential danger. The

practice has been viewed as essential to respond to incidents of theft or vandal-

ism. In addition, police frequently attempt to determine whether a vehicle has

been stolen and thereafter abandoned.

Inventory searches are generally accepted as standard procedure for many

departments. However, if evidence from a routine inventory search is to be admis-

sible in court, the inventory must be just that: routine. Police cannot decide that

some vehicles will be searched when impounded, whereas others are not. Routine

inventory searches have been held reasonable; checking only certain vehicles has

not. Officers from departments that usually do not conduct inventory searches can-

not decide to inventory one particular vehicle.

Two Supreme Court cases illustrate the importance of having standard proce-

dures for conducting inventory searches. In Colorado v. Bertine (1987), the Court upheld as lawful the Boulder Police Department’s standard inventory policy, stat-

ing, “Nothing prohibits the exercise of police discretion to impound a vehicle . . .

so long as that discretion is exercised according to standard criteria and on the

basis of something other than suspicion of evidence of criminal activity.” The

Court’s ruling also extended the permissible scope of inventory searches of

CASE IN BRIEF

Wyoming v. Houghton (1999)

ISSUE Does it violate the Fourth Amendment to search a

passenger’s belongings located

in the car when the officer has

probable cause to believe the car

contains contraband?

RULING No. Officers with probable cause to search a

car for contraband may search

belongings belonging to the

occupants of the car as well.

CASE IN BRIEF

South Dakota v. Opperman

(1976)

ISSUE Is it constitutional to conduct an inventory of a

vehicle’s contents when that

vehicle is lawfully impounded by

the police?

RULING Yes. It is reasonable to conduct an inventory “search”

of a car when lawfully impounded

because it is done for purposes

other than investigating criminal

conduct.

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Chapter 9 Conducting Constitutional Searches 303

vehicles to include opening and examining closed containers within the vehicle if the police agency has a standard procedure or established routine for such activ-

ity. In the absence of such a policy, such a search would violate the Fourth

Amendment.

In Florida v. Wells (1990), Martin Wells had given the Florida Highway Patrol permission to open his impounded car ’s trunk. Police found a locked suitcase,

which, on being opened, revealed a considerable amount of marijuana. Wells

moved to suppress the marijuana on the grounds it was seized in violation of the

Fourth Amendment. The Court held that Colorado v. Bertine required police agen- cies to have a policy mandating either that all containers be opened during such

searches or that no containers be opened, leaving no room for officer discretion.

Noting the absence of any such Florida Highway Patrol policy, the Court ruled,

“The instant search was insufficiently regulated to satisfy the Fourth Amendment.

Requiring standardized criteria or established routine as to such openings pre-

vents individual police officers from having so much latitude that inventory

searches are turned into a ruse for a general rummaging in order to discover

incriminating evidence.”

Exigent Circumstances

Yet another circumstance in which lawful warrantless searches can be made is if

exigent (emergency) circumstances exist. The courts have recognized that

sometimes situations will arise that reasonably require immediate action before

evidence may be destroyed. Police officers who have established probable cause

that evidence is likely to be at a certain place and who do not have time to get a

search warrant may conduct a warrantless search. However, there must be

extenuating (exigent) circumstances, such as preventing the imminent destruc-

tion of evidence; hot pursuit of a dangerous offender; preventing the escape of

someone sought to be detained or arrested in public; public safety or commu-

nity caretaking concerns; and rescue and emergency aid efforts

(Minnesota v. Olson, 1990). In United States v. Johnson (1972), the Court upheld a warrant-

less search of a suitcase because there was probable cause to

believe it contained a sawed-off shotgun. Although a warrant is

preferred because of the judicial decree that probable cause

exists, if a genuinely exigent circumstance exists, such a search is

reasonable.

Imminent Destruction of Evidence In Schmerber v. Califor- nia (1966), the Court recognized that under particular facts officers might need to search for, or seize, evidence before a warrant can

be secured. In this situation, there must be a reasonable belief that

evidence or contraband might be removed or destroyed if the officers, with no time

to secure a warrant, do not act quickly.

Schmerber was arrested for drunk driving after he was involved in an accident.

He was then taken to a hospital to be treated for injuries, where an officer ordered

a doctor to take a blood sample from Schmerber to determine the driver’s blood

alcohol content (BAC). The blood draw occurred despite Schmerber’s objections

and advice from his lawyer.

exigent circumstances emergency situations

Exigent circumstances include danger of physical harm to an offi cer or ot hers, danger of des truction of evidence, driving wh ile intoxicated, hot -pursuit situations, and individuals requiring “res cuing,” for example, unconscious individuals.

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304 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

The Court recognized that, in this case, time had already passed from when the

accident occurred and when Schmerber was brought to the hospital. Taking more

time to secure a search warrant would have allowed the evidence to disappear

because the percentage of alcohol in the body will begin to diminish after drinking

stops and the body begins to eliminate it from the system. The Court stated the

warrantless search in this case was reasonable because the officer “might reason-

ably have believed that he was confronted with an emergency, in which the delay

necessary to obtain a warrant, under the circumstances, threatened ‘the destruction

of evidence.’”

In 2013, the Supreme Court revisited the issue of the destruction of evidence

in drunk driving cases. In Missouri v. McNeely, the Court was confronted with the question of whether the natural dissipation of alcohol in the blood system auto-

matically meets the exigent circumstance requirement and allows the police to

force a blood draw. The Court ruled that each situation must be determined on its

own facts to determine whether or not the situation qualifies as an exigent

circumstance.

Some courts have ruled that if the officers themselves create the exigency, the

exigent circumstance exception to the warrant requirement will not apply. This

creates a quandary, however, because an officer knocking at the door may be

construed as creating an exigency in and of itself. The Supreme Court addressed

the problem of police-created exigency in Kentucky v. King (2011), a case in which officers pursued into an apartment building a suspect who had sold crack

cocaine in an undercover buy. Having lost sight of the suspect briefly, the officers

believed he had entered an apartment from which a strong odor of marijuana

was coming from. Officers pounded on the door and loudly identified them-

selves as police. A commotion and movement was heard from inside, and officers

believed that the occupants were destroying the drugs (evidence), so they forced

entry. They discovered cash, drugs, and paraphernalia in the apartment, even

though the initial suspect was not inside. The Kentucky Supreme Court ruled

that the entry was unlawful because the police had created the exigency when

they pounded on the door and announced their presence. The Supreme Court

reversed, stated that as long as the police do not create the exigency by “means

of an actual or threatened violation of the Fourth Amendment,” the exigent cir-

cumstances rule applies.

It is important to understand that the exigency limits the scope of the warrant-

less search or seizure. For example, once officers secure evidence that is about to

be destroyed, any further searching is prohibited because the exigency is over.

There is no “free reign” to search at will, and any further searching requires a

warrant.

Hot Pursuit Recall from Chapter 8 that hot pursuit involves pursuit of a

suspect into a place that typically holds a reasonable expectation of privacy,

such as one’s home. Warden v. Hayden (1967), presented in Chapter 8, is a good example of a hot pursuit case. Another relevant case is Welsh v. Wisconsin (1984), in which a lone witness observed a car that was being driven erratically and that

eventually swerved off the road, coming to a stop in a field without causing

damage to any person or property. Ignoring the witness’s advice to wait for

help, the driver (Edward Welsh) walked away from the scene. The police arrived

CASE IN BRIEF

Schmerber v. California (1966)

ISSUE Is the Fourth Amend- ment violated when the police

draw blood from a suspect

without a search warrant?

RULING No. On the specific facts of this case, it was reason-

able to draw blood without a

search warrant because it was

reasonable to believe the BAC

would dissipate and the evidence

would be lost.

CASE IN BRIEF

Missouri v. McNeely (2013)

ISSUE Is there a per se rule allowing for the warrantless blood

draw in all drunk driving cases?

RULING No. Each case must be decided on its own

facts. Whether or not an exigent

circumstance exists and the

blood needs to be drawn without

a warrant will be determined on a

case-by-case basis.

CASE IN BRIEF

Kentucky v. King (2011)

ISSUE Does the exigent cir- cumstance exception to prevent

the destruction of evidence apply

when the police cause the situ-

ation to destroy the evidence by

simply knocking on the door and

announcing their presence?

RULING Yes. As long as the police act without violating or

threaten to violate the Fourth

Amendment, exigent circum-

stances apply. Whether or not the

police should foresee that their

acts will cause the destruction of

evidence is immaterial.

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Chapter 9 Conducting Constitutional Searches 305

a few minutes later and were told by the witness that the driver was either

drunk or sick. After checking the car ’s registration, the police, without obtaining

a warrant, proceeded to Welsh’s nearby home, arriving at about 9 p.m. Welsh’s

stepdaughter answered the door and allowed the police inside, where they

found Welsh lying naked in bed. Welsh was arrested for driving a motor vehicle

while under the influence of an intoxicant in violation of a Wisconsin statute, a

nonjailable first offense at that time. At trial, the state argued that the warrant-

less arrest was justified because of exigent circumstances, including “hot pur-

suit” of a suspect, the need to prevent physical harm to the offender and the

public, and the need to prevent destruction of evidence. The case eventually

went before the Supreme Court. In delivering the opinion of the Court, Justice

William Brennan stated,

Payton v. New York held that, absent probable cause and exigent circum- stances, warrantless arrests in the home are prohibited by the Fourth Amend-

ment. But the Court in that case explicitly refused “to consider the sort of

emergency or dangerous situation, described in our cases as ‘exigent circum-

stances,’ that would justify a warrantless entry into a home for the purpose of

either arrest or search.” Certiorari was granted in this case to decide at least

one aspect of the unresolved question: whether, and if so under what circum-

stances, the Fourth Amendment prohibits the police from making a warrant-

less night entry of a person’s home in order to arrest him for a nonjailable

traffic offense. . . .

[In the case before us] the petitioner was arrested in the privacy of his

own bedroom for a noncriminal, traffic offense. The State attempts to justify

the arrest by relying on the hot-pursuit doctrine, on the threat to public

safety and on the need to preserve evidence of the petitioner ’s blood-alcohol

level. On the facts of this case, however, the claim of hot pursuit is uncon-

vincing because there was no immediate or continuous pursuit of the

petitioner from the scene of a crime. Moreover, because the petitioner had

already arrived home, and had abandoned his car at the scene of the accident,

there was little remaining threat to the public safety. Hence, the only poten-

tial emergency claimed by the State was the need to ascertain the petitioner ’s

blood-alcohol level.

Even assuming, however, that the underlying facts would support a finding

of this exigent circumstance, mere similarity to other cases involving the immi-

nent destruction of evidence is not sufficient. The State of Wisconsin has chosen

to classify the first offense for driving while intoxicated as a noncriminal, civil

forfeiture offense for which no imprisonment is possible. . . . Given this expres-

sion of the State’s interest, a warrantless home arrest cannot be upheld simply

because evidence of the petitioner’s blood-alcohol level might have dissipated

while the police obtained a warrant. To allow a warrantless home entry on these

facts would be to approve unreasonable police behavior that the principles of the

Fourth Amendment will not sanction.

Thus, for the purpose of this discussion, a critical point about the Welsh decision was how the Court emphasized that hot pursuit must be “immediate and continu-

ous” from the crime scene and must be in response to a serious crime.

CASE IN BRIEF

Welsh v. Wisconsin (1984)

ISSUE Does the Fourth Amendment allow a warrantless

entry into a home to arrest some-

one for a nonjailable offense?

RULING No. To justify the application of the exigent circum-

stance entry without a warrant

the offense must be serious.

Here, the offense in question (at

the time) did not allow for jail

time as punishment.

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306 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

The Emergency Aid Doctrine In Brigham City, Utah v. Stuart (2006) the Supreme Court unanimously held that police may make a warrantless entry into a

home if there is “an objective basis for belief that an exigency or emergency exists.”

In this case, police responding to a loud party complaint at 3:00 a.m. encountered

under-aged drinking outside and saw, through a window, a fight occurring inside

the home, during which a juvenile assaulted an adult, who was spitting blood.

With intent to stop the assault, police entered the back door and yelled, “Police!”

but were not heard over the noise. Three Utah courts agreed the Fourth Amend-

ment required the police knock first to request entry because they did not have a

warrant and the circumstances were not sufficient to be considered exigent. The

Supreme Court, however, reversed, holding that “police may enter a home without

a warrant when they have an objectively reasonable basis for believing that an

occupant is seriously injured or immediately threatened with injury.” Thus, the

actual nature of the injuries is irrelevant. Chief Justice John Roberts, writing for the

Court, stated, “Under these circumstances, there was no violation of the Fourth

Amendment’s knock-and-announce rule. Furthermore, once the announcement

was made, the officers were free to enter; it would serve no purpose to require them

to stand dumbly at the door awaiting a response while those within brawled on,

oblivious to their presence.”

While on patrol, Officer Santiago is dispatched to a

local convenience store. The dispatcher tells the

officer that someone is calling 911 stating the store

is being robbed by a 25-year-old White male, wear-

ing blue jeans and a red T-shirt with writing on it.

The suspect has a bald head, is wearing sunglasses,

and is acting like he has a gun.

As Officer Santiago arrives in the store park-

ing lot, a man matching the description of the

robber runs out from inside the store. The man

looks in the direction of the police car and then

turns and runs the other way. Officer Santiago

runs after him.

Officer Santiago chases the man for two blocks

and then loses sight of the robber as the robber

rounds a corner of an apartment building. An

elderly man points to the front door of the building

and tells the officer the running man went inside.

Officer Santiago goes inside, and just as she does,

she sees a man wearing a red shirt go into apart-

ment number 1. She runs to the door, which is now

shut, and sees the sunglasses the robber was wear-

ing on the floor outside apartment number 1.

The door is unlocked and Officer Santiago

enters into the apartment, yelling “Police!” as she

does. She sees the robber in the hallway attempting

to change his shirt. Officer Santiago arrests the rob-

ber. During the arrest, Officer Santiago sees a gun

on the floor and a pile of cash next to it. She seizes

the items.

In court the robber seeks to have the gun and

the money against him excluded from evidence as

being the product of an illegal search.

■ Is the entry into the apartment constitutional? If so, under what exception to the warrant requirement?

■ What does the officer need to show for that excep- tion to apply?

■ What about the additional evidence found in the apartment? Can that be seized? Why or why not?

Constitutional Law in ACTION

CASE IN BRIEF

Brigham City, Utah v. Stuart

(2006)

ISSUE May police enter a home without a warrant when

they reasonably believe that an

occupant is seriously injured or in

imminent danger?

RULING Yes. The role of an officer is to not only render first

aid but to also prevent violence

and restore order. If the facts of

the situation lead to a reasonable

belief that someone is in need of

help, the police may enter without

a warrant.

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a rn

in g

2 0

1 5

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Chapter 9 Conducting Constitutional Searches 307

Included in the “danger-to-life” category are individuals suspected of being

armed and dangerous, thereby posing a threat to officers or others. In Ryburn v. Huff (2012), officers were engaged in a discussion with Mrs. Huff outside her home.

When the officers asked whether there were any guns inside the home, Mrs. Huff

immediately turned and ran inside her house, and the officers, fearing she might be

attempting to access a weapon, followed her inside. The Huffs brought action

against the officers, alleging the police entry into their home without a warrant was

a violation of the Huffs’ Fourth Amendment rights. The Court, however, deter-

mined that officer safety concerns prompted the entry and concluded that “a police

officer could have reasonably believed that he was justified in making a warrantless

entry to ensure that no one inside the house had a gun after Mrs. Huff ran into the

house without answering the question of whether anyone had a weapon.” In short,

the officers had acted constitutionally. The Court further cautioned lower courts not

to second-guess officers on the scene about the particular danger present or to

evaluate facts in isolation but rather to use the totality of the circumstances and

view facts collectively.

Also included in the danger-to-life category are individuals who are found

unconscious. If police officers come across an unconscious person, they are obli-

gated to search the person’s pockets or purse for identification and for any pos-

sible medical information. If they discover evidence of criminal activity or

contraband during this search, they may seize it. For example, in Vause v. United States (1931), two officers came upon an unconscious man on a public street. Unable to rouse him, they called for an ambulance and then searched his pockets

for identification. During this search, they found 15 cellophane packets that con-

tained narcotics. The Court affirmed the reasonableness of the search: “the

search of one found in an unconscious condition is both legally permissible and

highly necessary.”

Open Fields, Abandoned Property, and Public Places

Considering that a crucial tenet in Fourth Amendment search analysis is the exis-

tence of a reasonable expectation of privacy, what happens in instances when some-

one, known or unknown, abandons property? For example, if a person throws

something out of a car window while traveling on a freeway, has he or she forfeited

any expectation of privacy? What about a tenant who abandons an apartment or

discontinues payment on a storage space and never returns to claim the property

inside? What about garbage placed curbside to be transported to a dump and then

combined with the trash of others throughout the process? Finally, what about

something left in an open field so as to be seen by anyone passing by?

This area of search and seizure does not fit neatly in any of the other excep-

tions to needing a search warrant. It might be considered a natural extension of

the plain view doctrine. In effect, however, the courts have dealt with this area by

extending the doctrine that anything held out to the public is not protected by the

Fourth Amendment because no reasonable expectation of privacy or physical

trespass exists.

The precedent case for search and seizure of abandoned property and open

fields is Hester v. United States (1924). In this case, the police were investigating bootlegging operations and went to the home of Hester’s father. As they came to

the house, they saw a man identified as Henderson drive up to the house. The

If there is no reasonable expect ation of privacy or no physical tres pass , Fourth Amendment prot ect ions do not app ly.

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308 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

officers hid and saw Hester come out and give Henderson a bottle. The police

sounded an alarm, and Hester ran to a car parked nearby and removed a gallon jug;

then he and Henderson ran across an open field.

One officer chased them. Hester dropped his jug, which broke, but retained

about half its contents. Henderson threw his bottle away. Officers found another

broken jar that contained some liquid outside the house. The officers determined

the jars contained illegal whiskey. They seized the evidence, even though they had

no search or arrest warrants. Hester was convicted of concealing “distilled spirits,”

but on appeal, he said the officers conducted an illegal search and seizure. The

Supreme Court disagreed, stating,

It is obvious that even if there had been a trespass, the above testimony was not

obtained by an illegal search or seizure. The defendant’s own acts, and those of

his associates, disclosed the jug, the jar and the bottle—and there was no seizure

in the sense of the law when the officers examined the contents of each after it

had been abandoned.

The Court went on to state, “The special protection accorded by the Fourth

Amendment to the people in their ‘persons, houses, papers and effects,’ is not

extended to the open fields.” This exception includes property disposed of in such

a manner as to relinquish ordinary property rights.

The “open fields” doctrine holds that land beyond that normally associated

with use of that land, that is, undeveloped land, can be searched without a war-

rant. In Oliver v. United States (1984), the Court extended Hester by holding that “No Trespassing” signs do not bar the public from viewing open fields; therefore,

the owner should have no expectation of privacy and the Fourth Amendment does

not apply. In this case, officers, responding to a tip that marijuana was being grown

in an open field adjacent to a residence, conducted a warrantless search of the field,

which was surrounded by a fence with a “No Trespassing” sign affixed, and found

the contraband.

The Court held, because open fields are accessible to the public and the police

in ways that a home, office, or commercial structure would not be, and because

fences and “No Trespassing” signs do not effectively bar the public from viewing

open fields, the asserted expectation of privacy in open fields is not one that society

recognizes as reasonable. Furthermore, measures taken to protect privacy, such as

planting marijuana on secluded land and placing fences, locked gates, and “No

Trespassing” signs around the property, do not establish a reasonable expectation

of privacy required by the Fourth Amendment. The overriding consideration is not

whether the individual chose to conceal “private” activity, but whether the govern-

ment’s intrusion infringed on the personal and societal values protected by the

Fourth Amendment. Although the government’s intrusion on an open field is a

trespass at common law, it is not a search in the constitutional sense. The open fields

concept is a federal one, and some states hold that “No Trespassing” signs do, in

fact, establish a right of privacy requiring a warrant.

Curtilage is the term used to describe that portion of property generally associ-

ated with the common use of land, such as buildings, sheds, and fenced-in areas. It

also includes the property around a home or dwelling directly associated with the

use of that property. Because there is a reasonable expectation of privacy within the

curtilage, it is protected by the Fourth Amendment.

curtilage the portion of property generally associated

with the common use of land

CASE IN BRIEF

Hester v. United States (1924)

ISSUE Does the Fourth Amendment protect “open fields”

such that an officer needs a war-

rant to view or enter them?

RULING No. The protection of the Fourth Amendment is

not extended to “open fields.”

There is an important distinction

between open fields and homes,

with the latter being affording

Fourth Amendment protection.

CASE IN BRIEF

Oliver v. United States (1984)

ISSUE Is there a reasonable expectation of privacy when a

property owner posts “No Tres-

passing” signs, installs fences

around the property, and has a

locked gate at the entrance?

RULING No. The “open fields” doctrine applies. Open

fields are accessible to anyone,

unlike a home, and the methods

employed by the property owner

do not prevent the viewing of

the open fields. Establishing a

subjective expectation of privacy

is only part of the equation.

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Chapter 9 Conducting Constitutional Searches 309

The concept of curtilage evolved in the Supreme Court’s attempt to ascertain

just how far beyond one’s house the reasonable expectation of privacy extended.

Inside such areas, the open fields doctrine does not apply. A warrant would be

needed to search within the curtilage. In California v. Ciraolo (1986), the Court held that police looking from the air into a suspect’s backyard does not violate the Fourth

Amendment because, although part of the curtilage, it is open to public view from

the air. The following year, in United States v. Dunn (1987), the Court upheld the warrantless search of a barn that was not part of the curtilage on the same grounds.

In 2013 the Supreme Court decided the case of Florida v. Jardines. After receiving a “tip” that Jardines was growing marijuana in his house, officers approached the

front porch of the home with a drug-sniffing dog. The dog sniffed the front door

and alerted to the presence of drugs. The officers used this alert to obtain a search

warrant. The warrant was executed, and marijuana plants were seized from inside

the house. Jardines argued in court that the use of the drug-sniffing dog at the front

door was an unreasonable search under the Fourth Amendment.

The Supreme Court agreed, ruling that the officers had physically intruded on

the curtilage of the house—a constitutionally protected area—when they used the

dog to gather information, which amounted to a search under the Fourth Amend-

ment. Officers needed a warrant or some exception to that requirement to conduct

this search constitutionally. They had neither. Consequently, the search was uncon-

stitutional, and the marijuana was excluded from evidence.

The Court explained that, in general, a visitor or even an officer may intrude on

the curtilage of a home but that the constitutionality of that intrusion depended on

what purpose they had for being there. In the Court’s opinion, Justice Scalia wrote:

. . . a police officer not armed with a warrant may approach a home and knock,

precisely because that is “no more than any private citizen might do” (Kentucky v. King, 2011).

But introducing a trained police dog to explore the area around the home in

hopes of discovering incriminating evidence is something else. There is no cus-

tomary invitation to do that. An invitation to engage in canine forensic investiga- tion assuredly does not inhere in the very act of hanging a knocker. To find a

visitor knocking on the door is routine (even if sometimes unwelcome); to spot

that same visitor exploring the front path with a metal detector, or marching his

bloodhound into the garden before saying hello and asking permission, would

inspire most if us to—well, call the police.

In essence, Jardines applied the Jones test of physical intrusion for searches involving curtilage.

After a person has discarded or abandoned property, he or she maintains no

reasonable expectation of privacy. Thus, something thrown from a car, discarded

during a chase, or even disposed of as garbage (once off the curtilage) becomes

abandoned property that police may inspect without a warrant. In California v. Greenwood (1988), the Supreme Court held that a warrantless search and seizure of trash left curbside for collection in an area accessible by the public, outside of the

curtilage, does not violate a person’s Fourth Amendment rights because there

should be no expectation of privacy. Some states, however, have declared searching

through trash a violation of their state constitution. In most states, garbage searches

remain a standard technique for investigators, particularly narcotics investigators.

CASE IN BRIEF

Florida v. Jardines (2013)

ISSUE Is it a search to bring a drug-sniffing dog onto the front

porch of a homeowner in an

effort to gather information?

RULING Yes. Physically intruding on the porch is an

intrusion on the curtilage of a

house, which is a constitution-

ally protected area. Because the

officers were there to gather

information, it is a search under

the Fourth Amendment.

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310 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

“Dumpster diving” or “trash pulls” are methods for obtaining incriminating

evidence that often provides legal grounds to obtain a search warrant of a home. To

obtain such a warrant, officers must have probable cause to believe there is a pat-

tern of ongoing criminal activity; therefore, depending on the jurisdiction, a single

trash pull may be insufficient to establish probable cause: “When possible, officers

using trash pulls to obtain probable cause for the issuance of a search warrant

should either conduct multiple pulls or should use other investigative techniques

to obtain evidence that corroborates what was discovered in a trash pull. When

inspecting the trash obtained, investigators should use critical thinking and analy-

sis in a search for evidence, taking care not to disregard garbage that my actually

be evidence of a crime. This practice ensures that trash pulls are constitutional,

effective and viable crime-fighting tools” (Sanchez and Rubin, 2010, p. 13).

As technology expands, so too does the discussion surrounding whether dis-

carded property retains a reasonable expectation of privacy. A series of cases has

dealt with a person’s privacy interest in “abandoned” DNA evidence left on items

such as empty soda cans and cigarette butts. One particular case, United States v. Davis (2009), provides an informative analysis of a defendant’s privacy interests in his DNA and whether law enforcement was justified in collecting such “aban-

doned” DNA and entering it into Combined DNA Index System (CODIS), the fed-

eral DNA database maintained by the FBI, for no apparent reason. In this case,

Davis’s blood was taken from clothes he was wearing while shot. The hospital

where he was treated had placed his clothing in a bag, and Davis never attempted

to reclaim these items. The court’s opinion is 101 pages long; the following excerpt

provides relevant legal analysis relating this case to others dealing with the issue of

“abandoned” DNA:

It is well established that the warrantless search of abandoned property is not

unreasonable and therefore does not violate the Fourth Amendment. See, e.g., California v. Greenwood, 486 U.S. 35 (1988) (no reasonable expectation of privacy in bagged garbage placed on curb outside curtilage of home for municipal col-

lection); . . . The determination of whether property is abandoned is based on an

objective analysis of act and intent. . . .

[A]bandonment is a problematic concept when applied to DNA because it

implies a volitional act of relinquishment that is absent in this case. As one recent

commentator has framed the issue: “Do we intend to renounce our actual expec-

tations of privacy with respect to genetic material when we shed our DNA? The volition that is implied in abandonment is simply unrealistic here.” Elizabeth E. Joh, Reclaiming “Abandoned” DNA: The Fourth Amendment and Genetic Privacy,

100 Nw. U. L. Rev. 857, 867 (2006) (emphasis added).

Nonetheless, the abandonment analysis in Greenwood has been applied to uphold against Fourth Amendment challenge “covert involuntary DNA sam-

pling,” a process in which police collect DNA—not from crime scenes—but from

known persons who are suspected of crimes, for whom police do not have prob-

able cause to seek a warrant to take a sample directly from them. Joh, Reclaiming “Abandoned” DNA, . . . (coining new term for this investigative technique to eliminate the implication of volition when DNA is shed without one’s knowl-

edge or consent). Thus, instead of taking a sample directly from the targeted

individual’s body, which would clearly implicate the Fourth Amendment, police

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Chapter 9 Conducting Constitutional Searches 311

obtain discarded or “abandoned” items that are likely to contain the target’s

DNA, such as cigarette butts, coffee cups or chewing gum. See, e.g., Common- wealth v. Bly, 448 Mass. 473, 862 N.E.2d 341, 356–57 (2007) (suspect connected to murder by DNA analysis of water bottle and cigarette butts he left behind after

interview with police); State v. Wickline, 232 Neb. 329, 440 N.W.2d 249, 253 (1989) (police not required to obtain warrant to test cigarettes defendant left at police

station because he “abandoned these items and sufficiently exposed them to the

officer and the public to defeat his claim to Fourth Amendment protection”);

State v. Athan, 160 Wash.2d 354, 158 P.3d 27 (2007) (no constitutional violation where police addressed phony class-action mailing to suspect in cold rape case

and obtained suspect’s DNA from saliva on return envelope: “The analysis of

DNA obtained without forcible compulsion and analyzed by the government for

comparison to evidence found at a crime scene is not a search under the Fourth

Amendment.”).

Davis had moved to have the DNA evidence suppressed, arguing it was col-

lected unconstitutionally. However, in the end, the Maryland District Court judge

chose to treat the DNA evidence as “abandoned,” ruling, “There was certainly no

blatant or flagrant police action in deliberate disregard of the Defendant’s rights

that would warrant the remedy of suppression. Accordingly, the Court will, by

separate order, deny the Defendant’s motion.” The Supreme Court, however, has

yet to weigh in on the issue of abandoned DNA and privacy rights.

By Kevin Hartnett (The Boston Globe, May 12, 2013)

Imagine you stop by a Starbucks one morning, and the

shop is robbed only minutes after you leave. Witnesses say the perpetrator

was drinking coffee, so investigators retrieve dozens of cups from the trash,

looking for genetic evidence. When they analyze it, they may find the robber’s

DNA, but they’re going to find many other people’s as well—including yours.

What can they do with that information?

Instinctively, it feels like the answer should be “nothing”—that the DNA

is yours, and anyone who uses it without your permission has crossed a line.

Those molecules contain data about your heritage, your appearance, your

predisposition to disease—all kinds of secrets you had no intention to release

to the world when you threw your cup away.

But the legal reality is something quite different: Your DNA has just

entered a gray area.

“In general the idea is anything you intentionally relinquish to the public,

to scavengers, in the garbage, is free for anyone,” said Elizabeth Joh, profes-

sor of law at the University of California Davis. This is true for your hard

“The DNA in Your Garbage: Up for Grabs”

IN THE NEWS

(Continued)

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312 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

drive, your diary, your credit card statements—and it’s true for your DNA,

regardless of whether you realize you’re casting it aside.

Legal scholars call this material “abandoned DNA,” and Joh is one of a

handful of thinkers saying it’s time the law reckoned with what rights we

have to this trove of extremely personal information. Detritus containing

DNA was effectively useless to most people two decades ago. But today it is

becoming faster and cheaper to sequence fragments of DNA—revealing the

unique genetic material that begins to make us who we are—and the law has

yet to catch up. State laws are a patchwork of regulations, and most jurisdic-

tions, including Massachusetts, are mum about the privacy status of the DNA

we leave behind us every day.

Legal scholars argue that the free-for-all status of abandoned DNA poses

an immediate threat to our privacy, not just because of problems that might

arise down the line, but because of abuses that are already possible. The prob-

lem is hard to solve because abandoned DNA doesn’t fit neatly into any of

our existing legal categories: We have a strong expectation of privacy about

our medical records, and state and federal laws increasingly protect genetic

information; by contrast, simple property left behind belongs to anyone who

picks it up. The DNA we leave behind is neither and both: It is garbage that

also contains vital information. And right now, as far as the law is concerned,

it is essentially fair game.

***

To the extent that the legal system is grappling with abandoned DNA, it’s

chiefly in the criminal realm. Police are making more active use of DNA all

the time, collecting and storing the information it contains, and a vigorous

debate is underway about the privacy rights we have over our DNA in the

context of an investigation. Later this spring the Supreme Court will decide,

in the case Maryland v. King, whether the police can force a suspect to give a DNA sample when he or she has merely been arrested—but not yet

convicted—for a crime.

“Abandoned DNA” comes into play when the police don’t have a DNA

sample, and can’t force a suspect to give one up. In Washington in 2003,

police posed as a fictitious law firm and sent a letter with a return envelope

to a murder suspect named John Nicholas Athan, inviting him to participate

in a fake class-action lawsuit. He replied, and police lifted DNA from Athan’s

saliva on the seal of the envelope and used it to convict him of the killing. The

Washington State Supreme Court reviewed the technique and ruled it per-

missible, explaining that as soon as a letter goes in the mail, “The envelope,

and any saliva contained on it, becomes the property of the recipient.”

What might at first seem like clever police work strikes Joh as a very slip-

pery slope. In treating DNA the same way we treat the envelope it came on,

she suggests, we miss some important differences. First, DNA is uniquely

hard to hang onto: It’s in stray hairs and on chewing gum, and we constantly

give it away without choosing to. “What can a person do to so stop shedding

DNA?” she asks. Second, there is a meaningful difference between physical

objects that contain DNA and the information encoded on them. The former

(Continued)

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Chapter 9 Conducting Constitutional Searches 313

is just spit on the sidewalk; the latter reveals facts about us that we may not

even want to know ourselves, and we’d like to think that the law can also

make that distinction.

That might sound very subjective—that the difference between a mole-

cule of gum and a molecule of DNA is how we feel about it—but privacy law

does sometimes hinge on just that. In a landmark 1967 decision, the Supreme

Court expanded Fourth Amendment rights, which prohibit illegal searches

and seizures, to include what Justice John Harlan called the “reasonable

expectation of privacy”—which, to genetic-privacy advocates, clearly applies

to DNA.

“Your DNA is like your house, it’s as private as you can get,” said Sheldon

Krimsky, professor of urban and environmental policy at Tufts University

and author of the book “Genetic Justice.” “It has information about you, your

family, your siblings. I think individuals, if given an understanding of what’s

in their DNA, would have an expressed expectation of privacy.”

One proposal for how far privacy law should protect our DNA came

recently from David Gusella, a third-year law student at Boston College. In

an article in the Boston College Law Review in March, he pointed out that when police pick up abandoned DNA, there should be a clear limit to the

information they can draw from it. They should be allowed to sequence it for

traits related to appearance (because, he argued, we can’t reasonably expect

our appearance to remain private when we step out in public) but not any-

thing beyond that. Other scholars argue, however, that it’s more effective to

set limits on when the police can even collect DNA—because once they have

it, it’s unrealistic to imagine they will use some parts and not others.

While people are talking about law enforcement uses of abandoned DNA,

there has been almost no debate about another potential risk: private indi-

viduals taking each other’s genetic material. Joh is one of the few scholars

working on the issue. She argued in the Boston University Law Review in 2011 that sequencing someone else’s genome without consent should be classified

as felony theft—a charge whose seriousness would help establish social and

legal norms recognizing DNA as an exceptional kind of property.

Genetic material does enjoy some protections, in theory: Eleven states

have genetic information laws that are written broadly enough to conceivably

punish someone for sequencing another person’s genetic information with-

out consent. (In 2011, Massachusetts legislators considered a sweeping

Genetic Bill of Rights that would have protected abandoned DNA, but the

legislation never became law.) But the penalties are minimal, and no cases

have been brought under the laws.

Still, even if DNA theft by private citizens might sound like science fic-

tion, it has happened. In 2002, film producer Stephen Bing was implicated in

a paternity suit after private investigators hired by billionaire Kirk Kerkorian

used DNA from Bing’s discarded dental floss to prove that he (and not Ker-

korian) was the father of a young child. Similarly, in 2002 British police

thwarted a scheme to use an attractive woman to take a strand of hair from

Prince Harry—with the intention of using it to prove that he was not in fact

(Continued)

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314 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Prince Charles’s son. In 2006, the United Kingdom became the first country

to pass a law that made it illegal for private citizens to sequence another per-

son’s DNA without permission.

***

Other potential abuses of abandoned DNA are currently possible but still

untried. George Annas, a bioethicist Boston University, wrote in the New Eng- land Journal of Medicine about how abandoned DNA could be exploited by political campaigns to reveal embarrassing facts about their rivals. (Imagine

the headlines that would have resulted if, in 1984, Democratic operatives had

been able to show that Ronald Reagan carried the ApoE gene, which conveys

a high risk for Alzheimer’s.)

Joh thinks that a first step in encouraging courts and legislatures to grant

greater protection against unauthorized DNA analysis is to stop calling the

genetic material “abandoned” in the first place. “People think, well, if it’s

abandoned, why should I worry about it?” Joh proposes the more provoca-

tive label of “DNA theft.”

This semantic struggle points to an underlying challenge: We’re still just

beginning to understand what DNA means to us. Is it just a molecule, or is it

us? Until we have a better sense of what our DNA really tells us, what it can

and can’t reveal about a person, it’s going to be hard to pin down exactly how

it should be treated legally.

Given this still emerging picture, experts agree that privacy rights around

abandoned DNA are unlikely to change anytime soon. Krimsky, for one,

thinks it will probably take a scandal. “There hasn’t been a good enough case

where there’s enough damage done,” he said. “I guarantee if there was a

political candidate who had his DNA taken by a citizen and his political life

is ruined, you’d see some action taken.”

Border Searches Border searches are vital to U.S. national security. As discussed in Chapter 9, rou-

tine searches of persons, belongings, and vehicles at international borders are rea-

sonable under the Fourth Amendment because the Constitution does not require

even a hint of suspicion of criminal activity (Boyd v. United States, 1886; Carroll v. United States, 1925; United States v. Ramsey, 1977). “Full Fourth Amendment protec- tions do not apply at immigration borders, particularly right at the point of entry.

Searches may be conducted by immigration and border agents in the absence of

probable cause or reasonable suspicion. No amount of certainty is needed in border

searches—whether the person searched is a citizen or noncitizen. This is because of

a compelling state interest involved in stopping illegal immigrants and the flow of

prohibited goods into the country” (del Carmen, 2010, p. 294).

The same justification that allows searches for no reason at the border is relied

on to permit searches with only reasonable suspicion beyond the border but close

enough to be considered equivalent. The Supreme Court held in United States v. Montoya de Hernandez (1985) that routine searches at a U.S. international border

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Chapter 9 Conducting Constitutional Searches 315

require no objective justification, probable cause or warrant. In Quinones-Ruiz v. United States (1994) the Court stated, “The border search exception applies equally to persons entering or exiting the country.”

Regarding a person’s reasonable expectation of privacy, the Supreme Court has ruled, “A ‘search’ occurs when an expectation of privacy that society is prepared to

consider reasonable is infringed” (United States v. Jacobsen, 1984). A more recent case, Bond v. United States (2000), involved a border patrol agent’s physical manipu- lation of a bus passenger’s carry-on luggage. The agent had boarded the bus to

check the passengers’ immigration status and to locate illegal drugs by squeezing

the soft luggage some passengers had placed in the overhead storage space above

their seats. When the agent squeezed the canvas bag above Bond’s seat he noticed

that it contained a “brick-like” object. Bond admitted the bag was his and consented

to its search, which revealed a “brick” of methamphetamine.

Bond was indicted for federal drug charges but moved to suppress the drugs,

arguing that the agent had conducted an illegal search when he squeezed the bag.

The Supreme Court reversed the District Court and Court of Appeals when it held,

“A reasonable expectation of privacy exists when the person’s subjective expectation

is objectively reasonable.” According to the Court, a traveler’s personal luggage is

an “effect” protected by the Fourth Amendment. Because Bond used an opaque bag

and placed it directly above his seat, he expressed a subjective expectation of privacy

in his bag. Furthermore, his expectation of privacy was objectively reasonable

because “[w]hen a bus passenger places a bag in an overhead bin, he expects that

other passengers or bus employees may move it for one reason or another. Thus, a

bus passenger clearly expects that his bag may be handled. He does not expect that

other passengers or bus employees will, as a matter of course, feel the bag in an

exploratory manner.” The agent’s manipulation of the bag was an infringement of

Bond’s reasonable expectation of privacy and constituted a search. This decision

directly affects federal and state law enforcement officers’ ability to enforce drug

laws against those carrying large amounts of narcotics on public transportation.

The complexity of U.S. society has generated an incredible amount of case law

pertaining to the Fourth Amendment. What some regard as loopholes that allow

the guilty to go free, others see as stringent government control to ensure that either

overzealousness or simple error will not result in the innocent being convicted.

The Supreme Court has also recognized that routine border searches may be

carried out not only at borders but also at their functional equiva-

lent (as discussed in Chapter 8), meaning being essentially the

same or serving the same purpose, for example, airports that

receive nonstop flights from foreign countries.

People at airports are increasingly being stopped because they

fit a drug courier profile. This profile, developed by the Drug

Enforcement Administration (DEA), includes the following char-

acteristics: (1) arriving from a source city, (2) little or no luggage or

large quantity of empty suitcases, (3) rapid turnaround on airplane trip, (4) use of

assumed name, (5) possession of large amount of cash, (6) cash purchase of ticket,

and (7) nervous appearance.

This method is well illustrated in United States v. Sokolow (1989), which held that use of a drug courier profile to make an investigative stop was legal. In this case,

officers used a profile to detain Andrew Sokolow. A drug-detecting dog indicated

CASE IN BRIEF

Bond v. United States (2000)

ISSUE Is the physical manipu- lation of a person’s luggage an

unreasonable search?

RULING Yes. A person’s luggage is an “effect” under the

Fourth Amendment. Physically

manipulating it to ascertain its

contents is a search because it

violates the reasonable expecta-

tion of privacy in the luggage and

its contents.

The Court has ruled that routine searches at borders and at international airports are reasonable under the Fourth Amendment.

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316 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

the presence of narcotics in one of Sokolow’s bags. The officers arrested Sokolow

and obtained a search warrant for the bag. They found no narcotics but did find

documents that indicated involvement in drug trafficking. A second search with the

drug-detecting dog turned up narcotics in a second bag that belonged to Sokolow.

At trial, the defense objected to the legality of the investigative stop, but the

Court held that the totality of circumstances in the case, the “fit” with the numerous

criteria for the drug courier profile, established a reasonable suspicion that the sus-

pect was transporting illegal drugs, which made the investigative stop without a

warrant valid.

A profile of a terrorist has also been developed on the basis of the characteristics

of the September 11, 2001, hijackers. All were males from the Middle East who

spoke Arabic and were in their twenties. Is special attention to individuals who fit

this profile constitutional?

The farther a person gets from the border, however, the more traditional search-

and-seizure requirements come back into play. In Almeida-Sanchez v. United States (1973), the Supreme Court held that a vehicle search 25 air miles from the Mexican

border required a warrant because it was not at the border or its functional equivalent.

In United States v. Ortiz (1975), the Supreme Court held that the Fourth Amendment prevented border patrol officers from conducting warrantless, suspicionless searches

of private vehicles that were removed from the border or its functional equivalent.

Roaming border patrol agents may stop individuals or cars away from the

actual border only if they have the traditional reasonable suspicion. Similar to

the authorized use of roadblocks elsewhere, border agents can establish road-

blocks that stop cars in a certain pattern (every car, every other car, every fifth

car, etc.). However, searches may only be conducted according to the traditional

rules that apply to vehicles, such as probable cause to believe contraband is pres-

ent and the like.

Figure 9.3 summarizes when searches are “reasonable” and, therefore,

constitutional.

Search with a warrant Presumed reasonable

Search without a warrant Presumed unreasonable, unless:

Valid

warrant

With consent

Plain view/feel doctrine

Incident to lawful arrest

Frisks

Automobile exception

Exigent circumstances

Open fields, abandoned property and public places

Figure 9.3 Constitutional Analysis of Search and Seizure

a d sw

o rt

h /C

e n g a g e L

e a rn

in g

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Chapter 9 Conducting Constitutional Searches 317

Special Needs Searches One category of exceptions to the exclusionary rule is “special needs” searches,

limited searches that the court considers reasonable because societal needs are

thought to outweigh the individual’s normal expectation of privacy. Such

searches include prison, probation, and parole searches; drug testing for certain

occupations; administrative searches of closely regulated businesses; and com-

munity caretaking searches. The court has also said that the special need of public

school officials to maintain discipline and safety at school presents a justification

to relax the usual probable cause standard under some circumstances (Rutledge,

2009b, p. 80).

Administrative Searches

In certain circumstances, the government has a compelling interest that justifies

warrantless searches for the public’s benefit, and government officials may conduct

a search pursuant to a regulatory or legislative scheme without probable cause or a

warrant if the search adheres to a reasonable legislative standard. Certain strongly

regulated businesses may be searched during inspections without a warrant. Other

times, an administrative warrant is required. An administrative warrant allows

civil inspections of private property to determine compliance with government

rules, regulations, and city ordinances such as fire or building codes. Administra-

tive warrants may also be obtained so government agents can conduct routine

inspections when occupants refuse their entry.

Administrative searches were first recognized in Camara v. Municipal Court of the City and County of San Francisco (1967), when the Court stated that searches not related to investigating criminal wrongdoing are still regulated by the Fourth

Amendment and must be reasonable. The need of the search must be balanced

against the intrusion. These types of “administrative” searches allow limited dis-

cretion on the part of the searcher and have standardized procedures. Administra-

tive searches also do not necessarily focus on the individual but on the

administration of the program or law at hand. The Court uses a balancing test to

determine what is reasonable or not (based on the justification offered), given the

context of the search.

In United States v. Biswell (1972), the Supreme Court reversed a court of appeals ruling that disallowed a warrantless search of a gun shop’s locked storeroom,

which netted illegal firearms. The Court stated that such inspections pertaining to

the sale of illegal firearms are justified and that limited threats such as this inspec-

tion to the gun dealer’s expectation of privacy are reasonable, adding, “When a

dealer chooses to engage in this type of pervasively regulated business and to

accept a federal license, he does so with the knowledge that his business records,

firearms and ammunition will be subject to effective inspection.”

However, in Marshall v. Barlow’s Inc. (1978) the Court asserted that government inspectors should not be given unlimited authority and found that Occupational

Safety and Health Administration (OSHA) employees would not be permitted to

simply wander within a business looking for whatever wrongs they might find

because to do so would be an unreasonable intrusion into the owner’s Fourth

Amendment rights.

administrative warrant allows civil inspections of private

property to determine compliance

with government rules,

regulations, and city ordinances

such as fire or building codes;

may also be obtained so

government agents can conduct

routine inspections when

occupants refuse their entry

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318 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Public School Searches

Although most searches of students in public schools are conducted by school

officials (government agents), those in the criminal justice systems should know

the laws related to such searches. The Supreme Court held in New Jersey v. T.L.O. (1985) that in a public school, education officials may search a student (including

purses, backpacks, or other containers) or student lockers without a warrant or

probable cause if there is reasonable suspicion to suspect contraband is present at

the point to be searched. The justification here is the responsibility of public school

officials to maintain a safe environment for students. This responsibility would not

apply to adult students, dorm rooms, or private schools. The Constitution applies

to government officials, which public school personnel are, and not to private

school officials.

Safford Unified School District v. Redding (2009) addressed the constitutionality of a strip search of a 13-year-old student, Savana Redding, an eighth-grade student at

Bedford Middle School, suspected of furnishing prescription-strength ibuprofen

and an over-the-counter drug to other students. The principal at the Arizona school

called the young girl into his office and confronted her with the accusation, which

she denied. A search of her backpack revealed no pills, so the principal took her to

the nurse’s office where she was searched by female employees who also found no

drugs. Then the women required the student to pull her undergarments away from

her body to search for any pills, but none were found.

The student filed a federal civil rights lawsuit against the school and those who

searched her alleging a violation of her Fourth Amendment rights and requested a

summary judgment, which dismissed the case. After appeals were denied, the case

found its way to the Supreme Court, which ruled that the invasive scope of the strip

search violated the student’s right against unreasonable searches because there was

no evidence indicating that pills might be found in her underwear and the items

being sought were not particularly dangerous:

Non-dangerous school contraband does not raise the specter of stashes in inti-

mate places, and there is no evidence in the record of any general practice

among Safford Middle School students of hiding that sort of thing in their

underwear. . . . In sum, what was missing from the suspected facts that pointed

to the student was any indication of danger to other students from the power of

the drugs or their quantity and any reason to suppose that she was carrying pills

in her underwear. We think that the combination of these deficiencies was fatal

to holding the search reasonable. (Safford Unified School District v. Redding, 2009)

The Redding opinion leaves intact the T.L.O. standard allowing schools to search students on reasonable suspicion, as opposed to the higher probable cause stan-

dard, but the Court ruled that the strip search of Redding went too far: “T.L.O. requires that a search be both ‘justified at its inception’ and ‘permissible in its

scope,’ considering the age and gender of the student and the nature of the sus-

pected infraction” (Means and McDonald, 2009b, p. 83). In this case the search of

Redding’s backpack and outer clothing was reasonable, but the degree of intrusion

involved in removing her clothing and exposing her body was unreasonable, espe-

cially in view of the fact that officials were seeking only a small quantity of a com-

mon medication that posed essentially no threat to the school.

CASE IN BRIEF

Safford Unified School District v.

Redding (2009)

ISSUE Does it violate the Fourth Amendment to search

a 13-year-old girl’s underwear

for drugs she was suspected of

possessing?

RULING Yes. The search is unconstitutional based on the

level of intrusion, the girl’s age,

and the nature of the suspected

infraction.

MYTH Any search by a government

official requires probable cause.

REALITY Not necessarily. Administra-

tive searches, like those in a

public school that are based on

something other than evidence

gathering, can be conducted with

less than probable cause.

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Chapter 9 Conducting Constitutional Searches 319

Prison, Probation, and Parole Searches

A surprise to some people is that prisoners have constitutional rights. However, the

rights prisoners have are limited. In Hudson v. Palmer (1984) the Supreme Court stated,

While prisoners enjoy many protections of the Constitution that are not funda-

mentally inconsistent with imprisonment itself or incompatible with the objec-

tives of incarceration, imprisonment carries with it the circumscription or loss of

many rights as being necessary to accommodate the institutional needs and

objectives of prison facilities, particularly internal security and safety. It would

be impossible to accomplish the prison objectives of preventing the introduction

of weapons, drugs and other contraband into the premises if inmates retained a

right of privacy in their cells.

Searches are a reasonable part of prison life among inmates who have little

expectation of privacy, but how searches are carried out can conceivably challenge

the reasonableness clause of the Fourth Amendment.

In Moore v. People (1970), the court ruled that searches conducted by correctional personnel “are not unreasonable as long as they are not for the purpose of harassing

or humiliating the inmate in a cruel or unusual manner.” Likewise, in Bell v. Wolfish (1979) the Supreme Court ruled that unannounced cell searches or shakedowns did

not require warrants, were not a violation of inmates’ Fourth Amendment rights,

and were justified by a correctional facility’s need to maintain order. More recently,

in Florence v. Board of Chosen Freeholders of the County of Burlington (2012), the Court held that strip searches of those entering the jail’s general population are constitu-

tional, regardless of the underlying offense or without regard to reasonable suspi-

cion the person might be carrying a concealed weapon.

In Maryland v. King (2013), the Supreme Court ruled as constitutional a Maryland law that required the collection of DNA from all people arrested for

serious crimes. The DNA identification process was likened to that of finger-

printing or photographing the arrestee, both legitimate booking processes. The

Court noted that because the arrestee is already in custody based on probable

cause, the need for a warrant is “greatly diminished.” The search will be evalu-

ated with reference to “reasonableness” and not individualized suspicion. The

majority opinion stressed that the important government interest in identifying

arrestees greatly outweighed the minimal intrusion of a “cheek swab” to obtain

the sample.

The dissent, written by Justice Scalia, strongly criticized the identification ratio-

nale, pointing to the length of time it takes to process a DNA sample for identifica-

tion. Scalia argued that the real motive behind the Maryland statute authorizing the

collection of DNA was not to identify the arrestee but to gather evidence. And this,

he wrote, is unconstitutional because it is a search without any individualized sus-

picion. Those types of searches are only constitutional in narrow situations unre-

lated to “ordinary crime-solving.”

Although courts have generally allowed intrusion, within broad limits, into

inmates’ privacy, some court rulings have extended the degree of privacy to which

inmates are permitted. Two cases, Turner v. Safley (1987) and Jordan v. Gardner (1993), illustrate the conflict among court decisions regarding inmates’

CASE IN BRIEF

Maryland v. King (2013)

ISSUE Is it a constitutional search to gather DNA evidence

during the booking process from

a person arrested for a serious

offense?

RULING Yes. Like finger- printing and photographing an

arrestee, DNA collection is an

important and legitimate aspect

of a booking procedure.

MYTH All citizens share the same level

of constitutional rights.

REALITY This is false. Those in prison

or on probation or parole have

“diminished rights” under the

Constitution due to their cor-

rectional status.

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320 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

constitutional right to privacy. In Turner, the Supreme Court ruled in favor of the administrator-defendant and upheld the cor-

rectional policy allowing cross-gender searches: “When a prison

regulation impinges on inmates’ constitutional rights, the regula-

tion is valid if it is reasonably related to legitimate penological

interests.” In Jordan, however, the circuit court sided with the inmate-plaintiff, holding that female inmates subjected to

unclothed body searches by male officers had, in fact, been sub-

jected to an unconstitutional search.

Searches are conducted on visitors, correctional officers, and other corrections

personnel because these individuals may smuggle contraband to inmates. The

obvious need for prison security is paramount, but courts expect it to be accom-

plished by lawful, reasonable means.

Not all people convicted of crimes are sent to prison. The majority of those

incarcerated are returned to society, most often under some degree of supervision

for a determined length of time, while on either probation or parole. Probation refers to a situation in which the punishment of a convicted offender is conditionally

suspended. The offender must remain in the community and under the supervision

of a probation officer, who is usually a court-appointed official. Parole refers to release from prison of a convict before the expiration of the prison term on condi-

tion that the parolee’s activities be restricted (as of residence, occupation, type of

associates) and that he or she report regularly to an officer.

More than 4.8 million adults were under community supervision at year end

2011—the equivalent of about 1 in every 50 adults in the United States. The majority

(82 percent) were probationers (Maruschak and Parks, 2012). People on probation

or parole are protected by the Constitution; however, what is reasonable for them

is considered to be different than that for the general population. Convicted crimi-

nals do not lose their rights entirely. They are limited, to be sure, but not entirely forfeited. The Court in Morrissey v. Brewer (1972) asserted, “It is always true of pro- bationers (as we have said it to be true of parolees) that they do not enjoy the abso-

lute liberty to which every citizen is entitled, but only . . . conditional liberty

properly dependent on observation of special (probation) restrictions.” Whether

one considers any sentencing to accomplish rehabilitation or retribution, govern-

ment obviously has a vested interest in being involved.

Several cases have followed Morrissey (which confirmed due process during parole revocation hearings) and further defined to what extent the Constitution

protects these individuals from unreasonable government intrusions. In Griffin v. Wisconsin (1987), the Supreme Court held that a probationer’s residence could be searched by a probation officer if there were reasonable grounds to believe contra-

band was present. Joseph Griffin was on probation under the jurisdiction of the

Wisconsin Department of Health and Social Services, which had a policy permit-

ting, upon approval by a supervisor, a probation officer to search a client’s home

without a warrant if there were reasonable grounds to believe contraband was

present. Such a search was conducted after probation officers learned from police

that there “were or might be” guns in Griffin’s apartment. During the search, a

handgun was found, and he was charged accordingly.

Acknowledging that people on probation have constitutional rights, including

protection by the Fourth Amendment, the Supreme Court affirmed that

Prison inmates , probationers, and parolees have limited Fourth Amendment rights bec ause wh ile under supervision, they should not expect the degree of privacy enjoyed by law-abiding citizens.

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Chapter 9 Conducting Constitutional Searches 321

government actions must be reasonable. Recognizing the “special needs beyond

normal law enforcement,” the Court said that the usual requirements of a warrant

based upon probable cause were not necessary because to so require would “inter-

fere with the operation of the probation system.” The Court did not say a warrant-

less search could be conducted without cause, but that when there was a state

policy allowing a search based on reasonable grounds, the search was reasonable

under the Fourth Amendment.

In United States v. Knights (2001), the Supreme Court addressed the constitution- ality of whether a police officer could search a probationer’s home without proba-

ble cause or reasonable suspicion; however, the police said they had reasonable

suspicion at the time but did not obtain a warrant because they knew that Mark

Knights had signed a probation agreement in which he consented to searches at any

time. Thus, the Court did not have to deal with suspicionless searches because that

was not the case here.

The Court determined that searching Knights’s home without a warrant, but

with reasonable suspicion, was reasonable under the Fourth Amendment because

of the government’s interest in regulating and monitoring probationers’ behavior.

This case, along with Griffin, makes clear that individuals on parole or probation have a lesser reasonable expectation of privacy.

In Knights the Court stated, “The reasonableness of a search is determined by assessing on the one hand, the degree to which it intrudes upon an individual’s

privacy and, on the other hand, the degree to which it is needed for the promotion

of legitimate government interest.” Here, the Court clearly balanced the govern-

ment’s interests and those of the individual. Griffin and Knights differ because there was a procedural rule in Griffin, and the search was conducted by a probation offi- cer. In Knights such a search was conducted by the police and was based on a condi- tion of his probation. Both cases involved searches based on reasonable grounds.

Courts have found that required drug testing of people on parole or probation

for drug offenses is reasonable as in United States v. Leonard (1991). In United States v. Thomas (1984), a parole officer was permitted to require the client to remove his jacket to show fresh needle marks, with a subsequent search of his clothing netting

drugs that were admissible as evidence. However, both searches were also based on

a recognition that such searches were conditions of parole.

In Samson v. California (2006), the Court sought to further define what rights those on parole, as differentiated from probation, have by holding, “The Fourth

Amendment does not prohibit a police officer from conducting a suspicionless

search of a parolee.” In this case, an officer searched a parolee only because of his

status of being on parole, in contradiction to state law requiring the individual

“agree in writing to be subject to search or seizure by a parole officer or other peace

officer . . . , with or without a search warrant and with or without cause.” Metham-

phetamine was found, Donald Curtis Samson was charged and convicted, and his

claim of a Fourth Amendment violation was rejected by the trial court. Samson

appealed to the Supreme Court.

Writing for the Court, Justice Clarence Thomas explained how the law sought

to balance the interests of the individual and government: “Examining the totality

of the circumstances, petitioner did not have an expectation of privacy that society

would recognize as legitimate. The state’s interests, by contrast, are substantial.”

Further articulating the state’s overwhelming interest in supervising parolees,

CASE IN BRIEF

Griffin v. Wisconsin (1987)

ISSUE Is it constitutional for a probation officer to search a

probationer’s house without a

search warrant and with less

than probable cause?

RULING Yes. The probationer had agreed to a condition of pro-

bation that allowed the search of

his house, and the law regulating

probationers and such searches

is reasonable, even though based

on less than probable cause.

CASE IN BRIEF

United States v. Knights (2001)

ISSUE May a police officer search a probationer’s house

without a search warrant?

RULING Yes. The probationer agreed to a condition of his

probation allowing a search of

his home, along with the fact that

reasonable suspicion existed, and

together the search by the officer

is constitutional.

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322 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Justice Thomas continued, “Parolees, who are on the continuum of state-imposed

punishments, have fewer expectations of privacy than probationers, because parole

is more akin to imprisonment than probation is. . . . The essence of parole is release

from prison, before the completion of sentence, on the condition that the prisoner

abides by certain rules during the balance of the sentence. . . . The extent and reach

of those conditions demonstrate that parolees have severely diminished privacy

expectations by virtue of their status alone.”

Searches of Public Employee Work Areas

Although employees, no matter where they work, have a degree of interest in

retaining some privacy, it is lessened in the public workplace context. Because of

this, noninvestigatory work-related searches, or searches related to investigation of

employee misconduct, require only reasonableness.

O’Conner v. Ortega (1987) addressed the issue of when public agency employees have legitimate privacy interests in their work areas as well as the circumstances

under which work place searches are reasonable, stating that this issue must be

approached case by case. In O’Conner during an investigation into suspected work- related conduct, the employer searched Magno Ortega’s desk and file cabinets and

seized his private property. Ortega filed a petition for summary judgment claiming

his Fourth Amendment rights had been violated. The district court found the search

to be reasonable because there was a need to secure state property. The court of

appeals reversed in part and remanded the case to the district court. When the case

found its way to the Supreme Court, it, too, reversed and remanded.

The Court agreed that Ortega’s desk and file cabinets were protected by the

Fourth Amendment, however: “Government searches to retrieve work-related

materials or to investigate violations of work-place rules—searches of a sort that are

regarded as reasonable and normal in the private employer context—do not violate

the Fourth Amendment in the public agency environment” (Wilson, 2008, p. 12). In

its opinion the Court stated,

Government offices are provided to employees for the sole purpose of facilitat-

ing the work of an agency. The employee may avoid exposing personal belong-

ings at work by simply leaving them at home.

In sum, we conclude that the “special needs, beyond the normal need for law

enforcement make the . . . probable-cause requirement impracticable,” for legiti-

mate work-related, noninvestigatory intrusions as well as investigations of

work-related misconduct. A standard of reasonableness will neither unduly

burden the efforts of government employers to ensure the efficient and proper

operation of the workplace, nor authorize arbitrary intrusions upon the privacy

of public employees. We hold, therefore, that public employer intrusions on the

constitutionally protected privacy interests of government employees for nonin-

vestigatory, work-related purposes, as well as for investigations of work-related

misconduct, should be judged by the standard of reasonableness under all the

circumstances. Under this reasonableness standard, both the inception and the

scope of the intrusion must be reasonable:

“Determining the reasonableness of any search involves a twofold inquiry:

first, one must consider ‘whether the . . . action was justified at its inception,’

Terry v. Ohio, . . . ; second, one must determine whether the search as actually

CASE IN BRIEF

Samson v. California (2006)

ISSUE Does it violate the Fourth Amendment to have a

state law that allows a parolee to

be searched by a peace officer

at any time, with or without

suspicion?

RULING No. Under these circumstances the search is

constitutional because, when

balancing the interests for the

effective supervision of parolees

and the intrusiveness on the indi-

vidual’s rights, albeit diminished,

the balance is in favor of the

government interests.

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Chapter 9 Conducting Constitutional Searches 323

conducted ‘was reasonably related in scope to the circumstances which justified

the interference in the first place,’ New Jersey v. T. L. O.”

The issue of public employee privacy becomes even more complex when an

electronic component is introduced. Desktop or notebook computers, mobile digi-

tal terminals in police cars, cell phones, pagers, BlackBerries, and other products are

frequently issued to law enforcement departments to perform their official duties.

The courts have generally “lagged far behind” in applying yesterday’s legal rules

to today’s technological innovations (Rutledge, 2010, p. 74). The Supreme Court has

made a limited attempt to give constitutional guidance on the issue of whether

police managers violate an officer’s privacy rights by auditing his or her text mes-

sages sent during duty hours over a department-issued electronic paging device—

the issue addressed in City of Ontario v. Quon (2010). In this case, SWAT sergeant Jeff Quon, employed by the Ontario (California)

Police Department, signed a written statement in 2000 acknowledging that he had

read and understood the department’s “Computer Usage, Internet and E-mail Pol-

icy.” This policy stated that the city “reserves the right to monitor and log all net-

work activity including e-mail and Internet use, without notice. Users should have

no expectation of privacy or confidentiality when using these resources.” An audit

of on-duty texting revealed that Quon was using the pager for personal messaging

during work hours. In one month he sent or received 456 messages while on duty,

of which no more than 57 were work-related. Quon was disciplined, after which he

sued the department claiming a violation of his Fourth Amendment rights.

The jury found that the employer conducted the audit for work-related

purpose—to determine the need for a new service agreement (satisfying the first

part of the Ortega test that the search was “justified at its inception”—and the audit was reasonable (satisfying the second part of the Ortega test that the search was “reasonable in scope.”). Thus, the trial court dismissed Quon’s Fourth Amendment

claim. The Ninth Circuit Court of Appeals reversed, and the city took its appeal to

the Supreme Court, which granted certiorari.

In a 9–0 decision, the Court reversed and remanded, holding, “Because the search

of Quon’s text messages was reasonable, the petitioners did not violate respondents’

Fourth Amendment rights, and the Ninth Circuit erred by concluding otherwise.” In

writing for the majority, Justice Anthony Kennedy stated, “The Court must proceed

with care when considering the whole concept of privacy expectations in communi-

cations made on electronic equipment owned by a government employer. The judi-

ciary risks error by elaborating too fully on the Fourth Amendment implications of

emerging technology before its role in society has become clear.”

This same caution applies to the evolution of technology involving electronic

surveillance of private individuals.

Electronic Surveillance, Privacy Interests, and the Fourth Amendment The issue of electronics and technology bring to the forefront the fact that, to deter-

mine whether or not a search has occurred, there needs to be more than the “physi-

cal intrusion” test. There must also be an analysis regarding whether a violation of

a reasonable expectation of privacy occurred. The issue of electronic privacy is a

CASE IN BRIEF

O’Conner v. Ortega (1987)

ISSUE Does a public employee have a reasonable

expectation of privacy in their

workspace? What is the standard

for a search when a public

employee has a reasonable

expectation of privacy?

RULING Yes. A public employee can exhibit a reason-

able expectation of privacy in a

workspace. A public employer

may conduct a search of the

workspace with less than

probable cause and without a

warrant if it is for a work-related

purpose, justified by the need for

an efficient and orderly operation.

The search needs to be sup-

ported by reasonable grounds,

and the scope must be related to

the object of the search and not

overly intrusive.

CASE IN BRIEF

City of Ontario v. Quon (2010)

ISSUE Does a government employer need to use the least

intrusive means to search an

employee’s text messages?

RULING No. All that is required is that the search be

reasonable. To be so, it must

be justified at its inception

(motivated by a legitimate work-

related purpose) and the scope

limited to locating the information

sought and not overly intrusive.

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324 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

burgeoning area of law, with little precedent to rely on other than cases that can be

used by analogy. But as with other issues regarding privacy concerns, the case must

first be assessed like any other constitutional question: Is the government involved? If so, it must then be determined if a reasonable expectation of privacy exists to

implicate the Fourth Amendment when a search occurs. To do this, it must be

shown that (1) the person has a subjective view that the material is private, and

(2) there exists an objective view that the expectation of privacy is reasonable by

society’s standards. Recall, this is the two-part standard introduced at the begin-

ning of the chapter as derived from Katz v. United States (1967), the landmark case in the area of electronic surveillance and the issue of the expectation of privacy.

In United States v. Karo (1984), the Court held a warrantless search unconstitutional when the police monitored a homing

device (beeper) in a can of material used to make illegal drugs

when it was taken into the defendant’s home. It is worth noting

that the initial placement of the beeper was constitutional because

it was put into the container with consent of the original owner

and then transferred to the defendant. Where the action turned

into an unconstitutional search was when officers monitored the device once inside

the defendant’s home to obtain information that would not otherwise have been

available through visual surveillance.

However, Karo case needs to be contrasted with situations in which the police put such a device on or in a car to monitor its

location on a public road, under which circumstances the Court

has determined the police were merely supplementing their sen-

sory faculties, and there is no reasonable expectation of privacy

when driving a car on a public road (United States v. Knotts, 1983). The Fourth Amendment also governs how electronic equipment is attached or inserted into the place or thing monitored.

The Supreme Court has ruled that the expectation of privacy

does not exist when someone voluntarily converses with someone

else—the “unreliable ear” exception. The lower courts have held

that this expectation does not exist when someone converses in

public because others may hear—the “uninvited ear” exception.

For instance, a warrant is not required for an undercover officer to converse with

suspects and use what they say in court.

Wiretapping created sufficient concern about the government eavesdropping

on phone conversations that Congress passed Title III (the Wiretap Act) of the

Omnibus Crime Control and Safe Streets Act of 1968, which prohibits the intercep-

tion of phone conversations unless one party to the conversation consents or when

authorized by a court of competent jurisdiction, with the interception remaining

under the control and supervision of the authorizing court. Interception is defined within this federal statute as “aural or other acquisition of the contents of any wire,

electronic or oral communication through the use of any electronic, mechanical, or

other device.” Subsequent legislation has brought cell phones within this

definition.

Title III requires warrants for electronic surveillance and requires states to adopt

similar legislation. Beyond calling for judicial supervision of all aspects of electronic

surveillance, Title III established specific procedures to apply for, issue, and execute

The Fourth Amendment does not limit the use of elect ronic equipment that merely enhances the offi cers’ senses but does not interfere with a person’s reasonable expect ation of privacy. Lights, phot ography fr om aircraft, and teles copes fall within this area.

Elect ronic surveillance is a form of search and seizure and, as such, is governed by the Fourth Amendment.

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Chapter 9 Conducting Constitutional Searches 325

court orders to intercept wire or oral communications. The application for such a

warrant, or wiretap order, must be detailed and include why less-intrusive means

are not practical and show that other investigative means have been attempted (but

does not require that all other methods be exhausted). The judge who authorizes the wiretap must find probable cause that the suspect has committed or is commit-

ting one of a number of specified crimes within the statute and that other means of

investigation will not be effective. The order will then be effective for only a specific

period, usually no more than 30 days, and the recordings made must be provided

to the judge who issued the order, who has control over them.

Following passage of Title III a series of cases and legislation

evolved that sought to come to grips with this complex, powerful

new area of obtaining evidence. During the 1960s, case law sought

to define what uses of technology would be considered “reason-

able.” In Osborn v. United States (1966), undercover federal agents with a warrant taped a conversation using a hidden recorder in an

attempt to prove that labor leader Jimmy Hoffa’s lawyer was brib-

ing a juror. The evidence was admitted on the basis that the elec-

tronic device was used in “precise and discriminate circumstances”

set forth in the warrant.

In Berger v. New York (1967), the Court held that a Fourth Amendment search does occur when electronic devices are used

to capture conversations and that using such devices must be limited, ruling that a

“two month surveillance period was the equivalent of a series of intrusions,

searches and seizures pursuant to a single showing of probable cause.” Warrants

may be issued for such a redundant period, but beyond that, they must be reviewed

or extended.

United States v. White (1970) held that “the Constitution does not prohibit a gov- ernment agent from using an electronic device to record a telephone conversation

between two parties with the consent of one party to the conversation.” In some

states, as long as there is one-party consent, a wiretap is not a Fourth Amendment

issue.

Title III also does not require a warrant for use of a device to trace telephone

calls (called a trap and trace device for incoming numbers) or devices that record what phone numbers were called from a specific phone (known as pen registers,

that record outgoing numbers) because actual conversations are not being moni- tored. A warrant could be required, however, to install such devices. The

Supreme Court has ruled that using a pen register to obtain numbers dialed

from a phone does not constitute a search and, therefore, does not require a war-

rant (Smith v. Maryland, 1979). Some state courts, however, might view such action as “unreasonable interception of private communication.” Likewise,

because cordless and cellular phones use radio waves that anyone can receive,

the courts have ruled that police may use randomly intercepted cordless and

cellular phone conversations as a basis for obtaining a search warrant (United States v. Smith, 1992). A similar situation exists with digital display pagers. Although police often intercept the signals of suspected drug dealers’ pagers,

one state supreme court has ruled that police must follow the procedures and

standards applicable to wiretapping before they may intercept pager signals

(State v. Jackson, 1995).

To obtain an elect ronic- surveillance warrant, or wiret ap order, probable cause that a person is engaging in particular communications must be es tablished by the court, and normal inves tigative procedures must have already been tried.

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326 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

The Electronic Communications Privacy Act

If government is not involved, the Fourth Amendment may not apply, but govern-

ment does have sufficient enough interest in ensuring people’s privacy from others

such that federal legislation has been passed. Analogous to U.S. Postal Regulations

that restrict who can take another’s mail to read, Congress enacted the Electronic

Communications Privacy Act (ECPA) (Title 18 of the U.S. Code) in 1986 as an

amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

This legislation prohibits anyone from “intentionally intercepting or endeavoring

to intercept any wire, oral or electronic communication” by someone not a part of

that communication.

The ECPA defines an oral communication as one made by a person exhibiting a reasonable expectation of privacy and stipulates that a warrant is required only

when the parties have a reasonable expectation of privacy. The Title I statute of

the ECPA addresses the interception of electronic transmissions. Title II of the

ECPA (the “Stored Communications Act” or SCA) specifies what and how law

enforcement can access stored electronic information from network service pro- viders such as Internet and cell phone companies and provides criminal penalties

for nongovernment persons who violate the act through intrusion into the pri-

vacy of others.

Whether e-mail, texts, and other cell phone information retained by cellular

service companies, subscriber information held by Internet providers, and other

forms of electronic communiqués can legally be viewed without the permission of

those actually sending and receiving them is an issue finding its way to the courts.

To date, the courts have ruled fairly consistently that when a third party (e.g., AOL,

Facebook, Verizon) has the data and holds it for business purposes, the individual

user loses any reasonable expectation of privacy regarding that information and

cannot challenge its seizure or search.

A developing thread of cases seems to remove the reasonable expectation of

privacy when a third-party service provider holds the information in question,

including

■ United States v. Conner (6th Cir. 2013) in which the court held no expectation of privacy exists in peer-to-peer sharing services.

■ United States v. Graham (Dist Ct MD 2012) in which the court stated no expec- tation in privacy exists in historical cell site location records because the infor-

mation is voluntarily conveyed to the cell providers. ■ United States v. Warshak (6th Cir. 2010) in which the court affirmed there is an

expectation of privacy in e-mails and to compel a third party to disclose them

requires a search warrant based on probable cause:

Given the fundamental similarities between email and traditional forms of

communication, it would defy common sense to afford emails lesser Fourth

Amendment protection [under the SCA]. . . . It only stands to reason that, if

government agents compel an ISP to surrender the contents of a subscriber ’s

emails, those agents have thereby conducted a Fourth Amendment search,

which necessitates compliance with the warrant requirement absent some

exception.

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Chapter 9 Conducting Constitutional Searches 327

■ United States v. Perrine (2008) in which the court said subscriber information given to the Internet provider is not protected by the Fourth Amendment.

■ United States v. Finley (2007) in which the court allowed the search of a cell phone’s text messages and recent calls as reasonable under a search incident to

arrest. ■ Guest v. Leis (2001) in which the court said the sender of an e-mail would lose

the reasonable expectation of privacy in an e-mail already received by the

recipient. ■ United States v. Andrus (2007), a case about third-party consent searches, with

the court holding that, based on the parent paying for Internet access and hav-

ing unrestricted access to the room, the parent could consent to the search of

an adult child’s computer. ■ Konop v. Hawaiian Airlines, Inc. (2002), which involved unauthorized access to

information on Robert Konop’s secure website, a federal court held that the

statute applied only to data being transmitted, not stored. Konop, a pilot for

Hawaiian Airlines, maintained a website where he posted bulletins critical of

his employer, its officers, and the incumbent union, Air Line Pilots Association

(ALPA). Many of Konop’s criticisms were about his opposition to labor con-

cessions that Hawaiian sought from ALPA. Because ALPA supported giving

management concessions to the existing collective bargaining agreement,

Konop encouraged others via his website to consider alternative union repre-

sentation. Konop controlled access to his secure website by requiring visitors

to log in with a user name and password. However, officers of the airline

gained unauthorized access to the site and suspended Konop in retaliation for

the content of his posts. Konop filed suit alleging Hawaiian Airlines violated

the Wiretap Act and the Stored Communications Act by viewing his secure

website under false pretenses.

The Ninth Circuit Court, having previously identified the intersection between

Title II and Title III “a complex, often convoluted area of the law” (United States v. Smith, 1998), held in Konop that the unauthorized access and review of the contents of a password-protected website can constitute violations of both the Wiretap Act

and the Stored Communications Act:

It is perfectly clear that the framers of the Wiretap Act’s current definition of

“electronic communication” understood that term to include communications in

transit and storage alike. . . . It makes no more sense that a private message

expressed in a digitized voice recording stored in a voice mailbox should be

protected from interception, but the same words expressed in an e-mail stored in

an electronic post office pending delivery should not. We conclude that it would

be equally senseless to hold that Konop’s messages to his fellow pilots would

have been protected from interception had he recorded them and delivered them

through a secure voice bulletin board accessible by telephone, but not when he

set them down in electronic text and delivered them through a secure web server

accessible by a personal computer. We hold that the Wiretap Act protects elec-

tronic communications from interception when stored to the same extent as

when in transit.

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328 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Another federal court in United States v. Councilman (2005), which involved a company scanning people’s e-mails for business research, interpreted the statute to

apply to e-mail either being transmitted or temporarily stored en route to the

intended recipient. Future cases will likely again address whether stored data falls

within the statute.

The issue of whether employers can inspect employee computer use rests on

whether the company has a policy in place addressing this issue. Questions

regarding whether an employee using company equipment on company time

has any expectation of privacy is most easily addressed by well-drafted policies

that provide the employees’ consent to have their company equipment

monitored.

Balancing Security Concerns with Privacy Interests

Since the terrorist attacks of September 11, 2001, security concerns have increas-

ingly conflicted with privacy concerns. For example, judges across the country

are divided over rising global positioning systems (GPS) surveillance practices:

“The growing use by the police of new technologies that make surveillance far

easier and cheaper to conduct is raising difficult questions about the scope of

constitutional privacy rights, leading to sharp disagreements among judges. This

comes at a time coinciding with concerns over other technological tools expand-

ing police monitoring abilities such as automated license-plate readers in squad

cars, speed cameras mounted on streetlight poles and linking facial recognition

computer programs to the proliferating number of surveillance cameras”

( Savage, 2010).

The area of electronic surveillance and expectations of privacy offers additional

support for the enduring quality of the Constitution. The explosive development of

technology continues to present challenges to which the Fourth Amendment can

respond. The incredible increase in the use of computers in our society will surely

challenge existing law in this area. Although the computer age presents search-and-

seizure issues that Benjamin Franklin and Thomas Jefferson could never have

dreamed of, the document they helped draft remains responsive. Telephones, pag-

ers, cellular technology, and the Internet all present areas that continue to be further

defined by case law.

MYTH A search warrant is needed to

gather your cell phone records.

REALITY Not true. All that is needed (under

most circumstances) is an order

or subpoena from a judge stating

“specific and articulable facts”

that show the information sought

relates to an investigation.

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Chapter 9 Conducting Constitutional Searches 329

Summary Jones resurrected the aspect of a physical intrusion or trespass in determining whether a “search” has

occurred. The reasonable expectation of privacy and

the physical trespass in an effort to gather informa-

tion are both valid analyses that need to be per-

formed to determine if a search has occurred. All

searches must be limited in scope. General searches

are unconstitutional and never legal.

Searches conducted with a warrant must be lim-

ited to the specific area and specific items described

in the warrant. Although warrantless searches are

presumed unreasonable, exceptions to the warrant

requirement include the following: (1) with consent;

(2) frisking for officer safety; (3) plain feel and plain

view evidence; (4) incident to lawful, custodial

arrest; (5) automobile exceptions; (6) exigent (emer-

gency) circumstances; and (7) open fields, aban-

doned property, and public places.

In the first exception, consent searches, the con-

sent to search must be voluntary. The search must

be limited to the area specified by the person grant-

ing permission. The person may revoke the con-

sent at any time. In the second exception,

stop-and-frisk situations, if a frisk is authorized by

the circumstances of an investigative stop, only a

limited pat down of the detainee’s outer clothing

for the officer ’s safety is authorized. In the third

exception, plain feel and plain view, if, in the law-

ful course of a frisk, officers feel something that

training and experience causes them to believe is

contraband, that develops the probable cause

required to expand the search and seize the object—

plain feel and plain touch. In addition, uncon-

cealed evidence that officers see while engaged in

a lawful activity may be seized and is admissible in

court—plain view.

In the fourth exception, searches incidental to a

lawful, custodial arrest, the search must be contem-

poraneous and must be limited to the area within the

person’s reach (Chimel). A search incident to lawful arrest allows seizure of property or containers not

immediately connected with the arrestee’s body, but

under his or her immediate control, including back-

packs, briefcases, luggage, or other packages. In the

fifth exception, the automobile exception, Carroll v. United States (1925) established that vehicles can be searched without a warrant provided (1) there is

probable cause to believe the vehicle’s contents vio-

late the law, and (2) the vehicle would be gone before

a search warrant could be obtained. The sixth excep-

tion, exigent circumstances, includes danger of phys-

ical harm to officers or another person, danger of

destruction of evidence, driving while intoxicated,

hot-pursuit situations, and individuals requiring

“rescuing.” The seventh exception, open fields, aban-

doned property, and public places, involves the lack

of expectation of privacy and lack of physical tres-

pass; therefore, the Fourth Amendment protection

does not apply.

The Court has ruled that routine border searches

and searches at international airports are reasonable

under the Fourth Amendment. Prison inmates, pro-

bationers, and parolees have limited Fourth Amend-

ment rights because while under supervision, they

should not expect the degree of privacy enjoyed by

law-abiding citizens.

Electronic surveillance is a form of search and

seizure and, as such, is governed by the Fourth

Amendment. For a search to have occurred, govern-

ment agents need not physically go onto someone’s

property. Information obtained whenever there is a

reasonable expectation of privacy constitutes a

search. The Fourth Amendment does not limit the

use of electronic equipment that merely enhances

officers’ senses but does not interfere with a person’s

reasonable expectation of privacy. Lights, photogra-

phy from aircraft, and telescopes fall within this area.

To obtain an electronic-surveillance warrant, proba-

ble cause that a person is engaging in particular com-

munications must be established by the court, and

normal investigative procedures must have already

been tried.

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330 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

Discussion Questions 1. What are the two tests for determining whether or

not a search has occurred?

2. What scenarios work best with the “reasonable expectation of privacy” doctrine? How about the “physical intrusion” test?

3. Provide your own definition of reasonable. 4. Discuss the advantages to obtaining a warrant.

5. Why are searches of homes different from searches of motor vehicles?

6. Provide your own definition of reasonable expectation of privacy.

7. Do you think the U.S. Supreme Court has been supportive of law enforcement through

its rulings in cases involving the Fourth Amendment?

8. Draft a scenario in which an innocent, routine interaction between a citizen in a public place and the police could result in a continuing escalation through reasonable suspicion to probable cause, and what the results to each party would be.

9. Is the exclusionary rule effective in limiting potential abuse of the Fourth Amendment by police when searching? Could another means be more effective?

10. How do you think the Fourth Amendment will be held to apply to e-mail and other data transmitted over the Internet?

References del Carmen, Rolando V. Criminal Procedure Law and

Practice, 8th ed. Belmont, CA: Wadsworth/Cengage Learning, 2010.

Ferdico, John N. Criminal Procedure for the Criminal Justice Professional, 10th ed. Belmont, CA: Cengage/ Wadsworth Learning, 2009.

Joh, Elizabeth E. “Reclaiming ‘Abandoned’ DNA: The Fourth Amendment and Genetic Privacy.” Northwestern University Law Review, Vol. 100, p. 857, 2006; UC Davis Legal Studies Research Paper No. 40. Available at SSRN: http://ssrn.com/ abstract=702571.

Judge, Lisa A. “Bye-Bye Belton? Supreme Court Decision Shifts Authority for Vehicle Searches from Automatic to Manual.” The Police Chief, June 2009, pp. 12–13.

Maruschak, Laura M., and Parks, Erika. Probation and Parole in the United States, 2011. (NCJ 239686.) Washington, DC: Bureau of Justice Statistics Bulletin, November 2012.

Means, Randy, and McDonald, Pam. “Police Law Myths, Part 1.” Law and Order, May 2009a, pp. 26–29.

Means, Randy, and McDonald, Pam. “Supreme Court 2008–2009, The Final Wrap.” Law and Order, October 2009b, pp. 80–83.

Means, Randy, and McDonald, Pam. “Myth of Custody and Consent.” Law and Order, June 2010, pp. 12–14.

Rutledge, Devallis. “In-Home Arrest Searches.” Police, November 2009a, pp. 66–69.

Rutledge, Devallis. “Public School Searches: ‘Special Needs’ Require Special Rules.” Police, October 2009b, pp. 80–81.

Rutledge, Devallis. “Vehicle Searches Incident to Arrest.” Police, June 2009c, pp. 68–71.

Rutledge, Devallis. “Electronic Privacy on the Job.” Police, September 2010, pp. 74–77.

Sanchez, Antonio J., and Rubin, James K. “The Use of Garbage to Establish Probable Cause for Granting Valid Search Warrants.” The Police Chief, June 2010, pp. 12–13.

Savage, Charlie. “Judges Divided over Rising GPS Surveillance.” The New York Times, August 13, 2010. Retrieved June 7, 2013, from www.nytimes .com/2010/08/14/us/14gps.html.

Wallentine, Ken. “PoliceOne Analysis: Arizona v. Gant.” PoliceOne.com News, April 22, 2009. Retrieved June 7, 2013, from www.policeone.com/legal/ articles/1813475-PoliceOne-Analysis-Arizona-v- Gant/.

Wilson, Kim. “When Does an Employer’s Search of Employee Work Areas Violate Privacy Rights?” The Police Chief, August 2008, pp. 12–13.

Cases Cited Adams v. Williams, 407 U.S. 143 (1972) Almeida-Sanchez v. United States, 413 U.S. 266 (1973) Arizona v. Gant, 556 U.S. ___ (2009) Arizona v. Johnson, 555 U.S. ___ (2009) Bailey v. United States, 133 S.Ct. 1031 (2013)

Bell v. Wolfish, 441 U.S. 520 (1979) Berger v. New York, 388 U.S. 41 (1967) Bond v. United States, 529 U.S. 334 (2000) Boyd v. United States, 116 U.S. 616 (1886) Brigham City, Utah v. Stuart, 547 U.S. 398 (2006)

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Chapter 9 Conducting Constitutional Searches 331

California v. Acevedo, 500 U.S. 565 (1991) California v. Ciraolo, 476 U.S. 207 (1986) California v. Greenwood, 486 U.S. 35 (1988) Camara v. Municipal Court of the City and County of San

Francisco, 387 U.S. 523 (1967) Carroll v. United States, 267 U.S. 132 (1925) Chambers v. Maroney, 399 U.S. 42 (1970) Chimel v. California, 395 U.S. 752 (1969) City of Ontario v. Quon, 560 U.S. ___ (2010) Colorado v. Bertine, 479 U.S. 367 (1987) Commonwealth v. Bly, 448 Mass. 473, 862 N.E.2d 341

(2007) Commonwealth v. Tarver, 345 N.E.2d 671 (Mass. 1975) Coolidge v. New Hampshire, 403 U.S. 443 (1971) Florence v. Board of Chosen Freeholders of the County of

Burlington, 132 S.Ct. 1510 (2012) Florida v. Jardines (Supreme Court 2013) Florida v. Jimeno, 500 U.S. 248 (1991) Florida v. Wells, 495 U.S. 1 (1990) Georgia v. Randolph, 547 U.S. 103 (2006) Griffin v. Wisconsin, 483 U.S. 868 (1987) Groh v. Ramirez, 540 U.S. 551 (2004) Guest v. Leis, 255 F.3d 325 (6th Cir. 2001) Hester v. United States, 265 U.S. 57 (1924) Horton v. California, 496 U.S. 128 (1990) Hudson v. Michigan, 547 U.S. 586 (2006) Hudson v. Palmer, 468 U.S. 517 (1984) Illinois v. Caballes, 543 U.S. 405 (2005) Illinois v. Lafayette, 462 U.S. 640 (1983) Illinois v. McArthur, 531 U.S. 326 (2001) Illinois v. Rodriguez, 497 U.S. 177 (1990) James v. Louisiana, 382 U.S. 36 (1965) Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) Katz v. United States, 389 U.S. 347 (1967) Kentucky v. King, 131 S. Ct. 1849 (2011) Knowles v. Iowa, 525 U.S. 113 (1998) Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir.

2002) Kyllo v. United States, 533 U.S. 27 (2001) Marron v. United States, 275 U.S. 192 (1927) Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) Maryland v. Buie, 494 U.S. 325 (1990) Maryland v. Dyson, 527 U.S. 465 (1999) Maryland v. King (Supreme Court 2013) Maryland v. Macon, 472 U.S. 463 (1985) Maryland v. Wilson, 519 U.S. 408 (1997) Messerschmidt v. Millender, 132 S.Ct. 1235 (2012) Michigan v. Long, 463 U.S. 1032 (1983) Michigan v. Summers, 452 U.S. 692 (1981) Michigan v. Tucker, 417 U.S. 433 (1974) Minnesota v. Dickerson, 508 U.S. 366 (1993) Minnesota v. Olson, 495 U.S. 91 (1990) Missouri v. McNeely, 133 S.Ct. 832 (2013) Monroe v. Pape, 365 U.S. 167 (1961) Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970) Morrissey v. Brewer, 408 U.S. 471 (1972)

Muehler v. Mena, 544 U.S. 93 (2005) New Jersey v. T.L.O., 469 U.S. 325 (1985) New York v. Belton, 453 U.S. 454 (1981) O’Conner v. Ortega, 480 U.S. 709 (1987) Ohio v. Robinette, 519 U.S. 33 (1996) Oliver v. United States, 466 U.S. 170 (1984) Olmstead v. United States, 277 U.S. 438 (1928) Osborn v. United States, 385 U.S. 323 (1966) Payton v. New York, 445 U.S. 573 (1980) Pennsylvania v. Mimms, 434 U.S. 106 (1997) People v. Loria, 10 N.Y.2d 368 (1961) Quinones-Ruiz v. United States, 864 F. Supp. 983 (S.D.

Cal. 1994) Ryburn v. Huff, 132 S.Ct. 987 (2012) Safford Unified School District v. Redding, 557 U.S. ___

(2009) Salas v. State, 246 So.2d 621 (Fla. Dist. Ct. App. 1971) Samson v. California, 547 U.S. 843 (2006) Schmerber v. California, 384 U.S. 757 (1966) Skinner v. Railway Labor Executives’ Association, 489 U.S.

602 (1989) Smith v. Maryland, 442 U.S. 735 (1979) South Dakota v. Opperman, 428 U.S. 364 (1976) State v. Athan, 160 Wash. 2d 354, 158 P.3d 27 (2007) State v. Barlow, Jr., 320 A.2d 895 (Me. 1974) State v. Jackson, 650 So.2d 24 (Fla. 1995) State v. Kaluna, 55 Hawaii 361, 520 P.2d 51 (1974) State v. Lewis, 611 A.2d 69 (Me. 1992) State v. Wickline, 232 Neb. 329, 440 N.W.2d 249 (1989) Stoner v. California, 376 U.S. 483 (1964) Terry v. Ohio, 392 U.S. 1 (1968) Thornton v. United States, 541 U.S. 615 (2004) Turner v. Safley, 482 U.S. 78 (1987) United States v. Andrus, 483 F.3d 711 (10th Cir. 2007) United States v. Banks, 540 U.S. 31 (2003) United States v. Biswell, 406 U.S. 311 (1972) United States v. Chadwick, 433 U.S. 1 (1977) United States v. Conner, (6th Cir. 2013) United States v. Councilman, 418 F.3d 67 (1st Cir. 2005) United States v. Davis, 657 F. Supp. 2d. 630 (D. Md. 2009) United States v. Dunn, 818 F.2d 742 (10th Cir. 1987) United States v. Edwards, 415 U.S. 800 (1974) United States v. Finley, 477 F.3d 250 (5th Cir. 2007) United States v. Graham, 846 F. Supp. 2d 384 (Dist. Court,

D. Maryland 2012) United States v. Haley, 669 F.2d 201 (4th Cir. 1982) United States v. Jacobsen, 466 U.S. 109 (1984) United States v. Johnson, 467 F.2d 630 (2nd Cir. 1972) United States v. Jones, 565 U.S. ____ (2012) United States v. Karo, 468 U.S. 705 (1984) United States v. Knights, 534 U.S. 112 (2001) United States v. Knotts, 460 U.S. 276 (1983) United States v. Leonard, 931 F.2d 463 (CA8 1991) United States v. Lucas, 898 F.2d 606 (1990) United States v. Matlock, 415 U.S. 164 (1974) United States v. Molinaro, 877 F.2d 1341 (7th Cir. 1989)

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332 Section III The Fourth Amendment: Governing Constitutional Searches and Seizures

United States v. Montoya de Hernandez, 473 U.S. 531 (1985) United States v. Ortiz, 422 U.S. 891 (1975) United States v. Perrine, 518 F.3d 1196 (2008) United States v. Pinson, 24 F.3d 1056 (8th Cir. 1994) United States v. Ramsey, 431 U.S. 606 (1977) United States v. Robinson, 414 U.S. 218 (1973) United States v. Ross, 456 U.S. 798 (1982) United States v. Simmons, 567 F.2d 314 (7th Cir. 1977) United States v. Smith, 978 F.2d 171 (5th Cir. 1992) United States v. Smith, 155 F.3d 1051 (9th Cir. 1998) United States v. Sokolow, 490 U.S. 1 (1989)

United States v. Thomas, 729 F.2d 120 (1984) United States v. Warshak, 631 F.3d 266 (2010) United States v. White, 401 U.S. 745 (1970) United States v. Wurie (Court of Appeals, 1st Cir. 2013) Vause v. United States, 53 F.2d 346 (1931) Warden v. Hayden, 387 U.S. 294 (1967) Weeds v. United States, 255 U.S. 109 (1921) Welsh v. Wisconsin, 466 U.S. 740 (1984) Winston v. Lee, 470 U.S. 753 (1985) Wright v. United States, 302 U.S. 583 (1938) Wyoming v. Houghton, 526 U.S. 295 (1999)

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333

The law of criminal procedure, dictated by due process, requires each step made by police to be in

accordance with the Constitution. This includes the interrogation of criminal suspects. Here, a

handcuffed felony suspect is questioned by an investigator.

No person . . . shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law.

––Fifth Amendment to the U.S. Constitution

The Fifth Amendment Obtaining Information Legally

CHAPTER 10

S p

e n

ce r

G ra

n t

/ P

h o

to E

d it

iStockphoto/Thinkstock

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334 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Do You Know . . .

Can You Define? beachheading

custodial interrogation

double jeopardy

entrapment

grand jury

harmless error doctrine

incrimination

indictment

interrogation

invoke

just compensation

public safety

exception

USA PATRIOT Act

waiver

■ What the Fifth Amendment prohibits the government from doing and

what the amendment guarantees?

■ How the Supreme Court has extended the elements of due process?

■ What factors determine the voluntariness of a confession?

■ The primary modern case for analyzing confessions?

■ What four warnings are included in Miranda?

■ When the Miranda warning must be given?

■ What constitutes a valid waiver of Miranda rights?

■ Whether private security officers need to recite the Miranda warning

before interrogating suspects?

■ What the public safety exception allows police officers to do?

■ Whether fruit-of-the-poisonous-tree applies to evidence obtained

following a Miranda violation?

■ What rights in addition to due process are guaranteed by the Fifth

Amendment?

■ Which rights are not incorporated?

■ How the USA PATRIOT Act enhances government’s ability to gather

information related to suspected terrorist activities?

Introduction Although each amendment to the Constitution is unique, the Fifth Amendment

is particularly intriguing. On the one hand, it is among the best-known amend-

ments, thanks to movies and television. Everyone knows about “The right to

remain silent.” On the other hand, the Fifth Amendment is filled with other

rights of which many people are not aware: “The Fifth and Fourteenth

Amendments of the U.S. Constitution both address the right of all citizens to due

process. The Fifth Amendment has an explicit requirement that the federal gov-

ernment not deprive any individual of life, liberty or property without the due

process of law. The Fourteenth Amendment explicitly prohibits states from vio-

lating an individual’s right of due process and equal protection” (Overholt et al.,

2008, p. 60).

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 335

The world revolves around communication. However, even as electronic

and technological advancements continue to expand, most of the work the

government does is done by communicating with people the old-fashioned

way—by talking with them. Interviewing remains an important skill for inves-

tigators, as does understanding the rights of the individuals with whom they

are talking.

Most of this chapter is devoted to the Fifth Amendment rights of individuals

when the government is asking them questions. This area of procedural law is

vitally important to both sides because so much of law enforcement involves asking

people questions. Does the person have to respond? What if he or she does not?

Can the police force someone to talk? What if the police do force a person to talk?

Exactly what does a defendant declaring his or her Fifth Amendment rights mean

in the courtroom?

What the government can do with the information it acquires usually is deter-

mined by who acquired the data and, if it was the government, how its agents

obtained the information. The Constitution recognized that government is capable

of letting the ends justify the means. The framers of the Constitution had seen con-

fessions forced through atrocious means. That sort of excessive, intensive govern-

ment conduct is what compelled the people to forge both a new government and

its framework, which continues to define the basics of today’s governmental

authority. Their goal was to limit government power to ensure freedom for the

people. Those who put so much careful thought into developing a document

capable of lasting as the world around it changed could have had absolutely no

idea how complex crime would become.

Technological developments have only increased the challenges of determining

how and when government agents can obtain information. Although technology

has been addressed elsewhere in this text, the acquisition of information is an

important means by which the Constitution may control potential government

misconduct.

This chapter introduces the different means by which the government

acquires information and the laws that apply. Because a confession by the

accused provides the prosecution with powerful evidence, having such an

admission rejected by the court for failing to meet the necessary legal require-

ments can be devastating. What other proof can be as damning as an accused

person proclaiming, “I did it!”? Although this area of law is admittedly complex,

the basic guidelines are consistent with the spirit of the Constitution, based on

fairness and due process.

This chapter begins with a discussion of the government’s need to know certain

information and how the Fifth Amendment governs this need to know. This discus-

sion is followed by an explanation of two key clauses—the prohibition against self-

incrimination and the guarantee of due process. Next, the law surrounding

confessions and the well-known Miranda decision are explored, including the pub- lic safety exception to Miranda. This is followed by discussions of the interplay between the Fourth and Fifth Amendments and of using informants to obtain

information. Next is a discussion of entrapment. The chapter then examines the

other provisions of the Fifth Amendment, as well as how this amendment affects

the field of corrections. The chapter concludes with a discussion of the USA

PATRIOT Act.

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336 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Government’s Need to Know A debate as old as any government has been, “What does the government need to

know, and what are the limits by which it is acquired?” In 1790, George Washing-

ton’s friend and contributor to The Federalist Papers, John Jay, wrote, “Let it be remembered that civil liberty consists not in a right to every man to do just what he

pleases, but it consists in an equal right to all citizens to have, enjoy, and do, in

peace, security and without molestation, whatever the equal and constitutional

laws of the country admit to be consistent with the public good.”

Enforcing the law depends to a great degree on government agents’ ability to

obtain confessions from those suspected of committing crimes or knowing who

did. The balance lies in doing this within the boundaries of the Constitution.

The Right against Self-Incrimination Incrimination is the act of accusing, implicating, or identifying someone as having

been involved in a crime or other wrongdoing. Self-incrimination, therefore, is

when someone identifies themselves as having committed a wrong.

The self-incrimination clause of the Fifth Amendment was made applicable to

state governments in Malloy v. Hogan (1964). The right to not be compelled to testify against oneself is what most people

think of when they hear about someone’s Fifth Amendment rights. It is critical to

understand that the Fifth Amendment protects against testimonial evidence, not

physical evidence:

The “right to remain silent” is an informal reference to the Fifth Amendment’s

protection against compelled self-incrimination. It means that the “government”

cannot force (coerce) people to answer questions that would cause them to look

guilty of a crime. That right applies or “attaches” to everyone, all the time, by

application of the Fifth Amendment. Unless an individual has been formally

granted immunity or there are other extraordinary circumstances, no one has to

answer police questions that call for incriminating information. They may

simply walk away or otherwise decline to answer. (Means and McDonald,

2010c, p. 16)

Do these rights include the right to refuse to provide identification to the

police during a routine law enforcement Terry stop? In Hiibel v. Nevada (2004), the Supreme Court said no. This case involved the refusal of a stopped motorist

to provide proper identification on request. The refusal and conviction was

held to be constitutional and not a denial of Fifth Amendment rights against

self-incrimination because, in an on-the-street encounter such as this, compelling

someone to identify themself poses no risk to that person of incriminating

themself.

Two previous cases involved the Fifth Amendment and circumstances when

public duty and individual rights conflicted. Garrity v. New Jersey (1967) and Gardner v. Broderick (1968) are frequently referenced as standing for the proposition that public employees may not be forced to choose between retaining their public

employment and exercising their right against compelled self-incrimination

( Kruger, 2009).

incrimination the act of accusing, implicating, or

identifying someone as having

been involved in a crime or other

wrongdoing

The Fift h Amendment states : “No person shall . . . be compelled in any criminal case to be a witness against himself.”

MYTH The Fifth Amendment does not

apply to DNA evidence.

REALITY This is true. The Fifth Amend-

ment protects against compelled

testimony. Testimony is verbal in

nature and does not include physi-

cal evidence such as DNA, blood,

hair, or your physical appearance.

MYTH The Fifth Amendment protects a

person from self-incrimination.

REALITY This is partly true. The Fifth

Amendment protects you from

being compelled to testify against

yourself (self-incrimination). You

cannot be forced to testify against

yourself. However, it does not

mean you cannot inadvertently

give an officer information to use

against you or admit to a crime.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 337

Due Process of Law Due process, which was discussed in depth in Chapter 4, is such an important con-

cept of U.S. law that no precise definition accurately suits it, although the concept

is simple: basic fairness must remain part of the process. It is the right to hear and the right to be heard. It is specifically identified in the Fifth Amendment as a Constitu- tional right.

Recall that procedural due process refers to how laws are applied.

The 1950s and 1960s have been called the era of the “due process revolution”

in the United States because, during that time, public sentiment demanded that

government be held accountable and that the rights under the Constitution be

applied equally to all. Government conduct in general was critically evaluated,

and police conduct especially was brought into the public’s eye more than ever

before. How the police were allowed to carry out their work as well as who the defendant was were considered to a much greater degree. For example, police

actions that would “shock the conscience” were found to violate due process

(Rochin v. California, 1952). In Rochin, Justice Felix Frankfurter stated, “Due process of law, as a historic and

generative principle, precludes defining, and thereby confining these standards of

conduct more precisely than to say that convictions cannot be brought about by

methods that offend ‘a sense of justice.’” In this case, three deputy sheriffs acted on

a tip and entered Antonio Rochin’s home through an unlocked door, forced open

the second-floor bedroom door, and saw Rochin put two capsules into his mouth.

The deputies tried to extract them but could not, so they took him to the hospital

and had his stomach pumped. Two morphine capsules were recovered and used as

evidence against Rochin. In overturning the conviction, Justice Frankfurter said,

“This course of proceeding by agents of government to obtain evidence is bound to

offend even hardened sensibilities. They are methods too close to the rack and the

screw to permit constitutional differentiation.”

The due process issue in Rochin involved an executive action (i.e., action by the police), not a legislative action. As a result, the test for the constitutionality of that

action is different. In Rochin, the Court applied the “shocks the conscience” test, whereas in cases involving the legislative realm, the test is generally one of strict

scrutiny or rational basis (sometimes an intermediate test is employed).

Also found to violate due process were laws, or lack of, that did not provide

juveniles with fairness in the legal system (In re Gault, 1967). In this case, a 15-year- old boy on probation was taken into custody at night for allegedly making obscene

phone calls to a neighbor. His parents were not notified. When Mrs. Gault came

home and found him missing, she went to the detention home and was told there

would be a hearing next day. At that hearing, a general allegation of “delinquency”

was made, with no specific facts stated. The complaining neighbor was not present,

no one was sworn in, no attorney was present, and no record was made of the pro-

ceeding. At a second hearing with the same circumstances, the judge sentenced the

boy to a state industrial school until age 21—a six-year sentence for which an adult

would receive a fine. The Supreme Court overruled this conviction on the grounds

that Gault was deprived of his procedural due process rights, as stated by Justice

Abe Fortas: “Where a person, infant or adult, can be seized by the State, charged

and convicted for violating a state criminal law, and then ordered by the State to be

The Fift h Amendment also states , “No person shall . . . be deprived of life, liberty or property, without due process of law.”

CASE IN BRIEF

Rochin v. California (1952)

ISSUE Is it a violation of due process to pump the stomach of

a suspect against their consent to

obtain evidence?

RULING Yes. Such conduct by the officers “shocked the

conscience” to such a degree

that due process was violated.

Note that this case was decided

before the exclusionary rule was

made applicable to the states.

Today, this decision would most

likely be based on that rather

than due process.

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338 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

confined for six years, I think the Constitution requires that he be tried in accor-

dance with the guarantees of all provisions of the Bill of Rights made applicable to

the States by the Fourteenth Amendment.”

The Fifth Amendment and Confessions There are two ways to evaluate a confession’s constitutionality: under the due pro-

cess voluntariness standard and under Miranda. Both are viable because one may be applicable when the other is not (e.g., the Fulminante case, as discussed shortly). Keep these two standards in mind as you read this section. Whether examined by

using a due process analysis or as a strict Fifth Amendment interpretation, this area

of law has been the subject of continued judicial examination and has produced a

great deal of litigation in an effort to apply constitutional limits. The primary ques-

tion is: “When will confessions be admissible as evidence in court?”

Justice Frankfurter, in Culombe v. Connecticut (1961), stated, “Despite modern advances in the technology of crime detection, offenses frequently occur about

which things cannot be made to speak. And where there cannot be found innocent

human witnesses to such offenses, nothing remains—if police investigation is not

to be balked before it has fairly begun—but to seek out possibly guilty witnesses

and ask them questions, witnesses, that is, who are suspected of knowing some-

thing about the offense precisely because they are suspected of implication in it.”

Approximately 80 percent of criminal cases are solved by less than a full confession,

and a study on the success rate of current police interrogation techniques indicated

that police interrogations produce at least some incriminating information in 45 to

65 percent of cases (O’Connor and Maher, 2009).

Early common law permitted confessions to be obtained by any manner, includ-

ing force or the threat of force. This practice continues in some countries and, unfor-

tunately, has been documented in the more recent past in the United States.

Wrongdoing by the U.S. military to elicit information from prisoners during war-

time, especially regarding terrorism, has spawned new debate about whether the

ends can justify the means. Regardless of the motivation, the reliability of such

admissions is to be questioned. By the middle of the eighteenth century, English

courts began to limit the admissibility of confessions. The courts increasingly ques-

tioned whether the confession was voluntary or provided under improper pressure

by the authorities. Thus, although the need for interrogations by law enforcement

is acknowledged, not all confessions will be admissible in court.

Voluntariness of Confessions

The exclusionary rule prohibits use of confessions obtained in violation of a per-

son’s constitutional rights and those otherwise coerced and, thus, inherently unreli-

able. Recalling that the judge-made common law exclusionary rule seeks to hold

government accountable for misconduct by prohibiting illegally obtained evidence

from being admitted into evidence, an understanding of what is legally or illegally

obtained information is crucial. To demonstrate that a confession was made volun-

tarily, many police departments tape- or video-record interrogations.

The first confession case decided by the Supreme Court was Brown v. Mississippi (1936), when the Court held that confessions obtained through brutality and tor-

ture by law enforcement officials are violations of due process rights. In this case,

CASE IN BRIEF

In re Gault (1967)

ISSUE Was the process used to commit Gault to juvenile facility

in accord with the commands of

the Fourteenth Amendment’s due

process clause?

RULING No. In this case, due process was violated. The Court

found that inadequate notice of

charges, failure to notify Gault’s

parents, and no protection

against self-incrimination, among

other things, all played a role in

the violation.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 339

Ed Brown was accused of murder, and when he denied the accusation, a deputy

sheriff and another hung Brown from a tree, but he insisted on his innocence. He

was then tied to the tree and whipped, but still he maintained his innocence. Sev-

eral days later, Brown was again beaten by the deputy and was told he would

continue to receive beatings until he confessed. Finally, Brown confessed.

Two other suspects were also taken to that jail and accused of the murder. They

were made to strip, were laid over chairs, and were beaten with a leather strap with

a buckle. They also finally confessed. The next day, the three were taken to the

sheriff where they confessed to the murder. At the trial, which began the next day,

the defendants said their confessions were false, obtained through torture.

Although rope marks were clearly visible and none of the participants denied that

beatings had taken place, the defendants were convicted and sentenced to death.

The Supreme Court held the confessions inadmissible, finding them void for

violating the defendants’ Fourteenth Amendment due process rights and noting

that coerced confessions are simply not reliable: “The trial . . . is a mere pretense

where the state authorities have contrived a conviction resting solely upon confes-

sions obtained by violence. . . . It would be difficult to conceive of methods more

revolting to the sense of justice than those taken to procure the confessions of these

petitioners, and the use of the confessions thus obtained as the basis for conviction

and sentence was a clear denial of due process.”

In Fikes v. Alabama (1957), the Supreme Court summarized the standard of that time as “whether the totality of the circumstances that preceded the confessions

deprived the defendant of his power of resistance.” This standard has been termed

the due process voluntariness test, and just as consent for an officer to search must be given freely, suspects must make any admission voluntarily. A coerced confession

has little credibility. Such a standard requires case-by-case analysis. In a highly

publicized murder case in Minnesota, the accused confessed but later recanted his

confession. In a letter to a news reporter, he wrote the following explanation of why

an innocent person confined in a cell totally alone might confess:

I got to the point where I didn’t care. I just wanted to get the pain over with. I

don’t believe people understand what it’s like to watch your life fall apart and

not even have someone to talk to. . . .

Try imagining sitting in a room the size of your bathroom with no window,

not knowing when that door will open or what your family is doing outside it.

Then picture that for a year. . . .

I thought I was saving my family from more harm. . . . In my twisted think-

ing at the time I felt I was doing an honorable thing for the people I love more

than myself. . . .

They told me many times in many different ways how much

better things would be if I cooperated with them. I don’t know if

I did it [confessed] hoping things would get better or if I just

didn’t care. . . . I would of sold my soul to the devil not to hear that

the door bang again, locking me in for another 23 hours by myself.

The courts have identified two factors in assessing the voluntari-

ness of a confession.

Police Conduct Police conduct will only be considered coer-

cive if it has the effect of overbearing one’s will. That is, the key

CASE IN BRIEF

Brown v. Mississippi (1936)

ISSUE Does it violate due process, and thus make a

confession involuntary, to use

physical torture as a means to

obtain the confession?

RULING Yes. The method used offends the principles of

justice rooted in the traditions of

our people. A confession obtained

by these means is not voluntary

and cannot be used in court. This

case was decided before the Fifth

Amendment was applicable to

the states.

Voluntariness of a confess ion is det ermined by (1) the police conduct involved and (2) conduct suffi cient to overcome the will of the suspect given the characterist ics of the accused.

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340 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

factor in judging police conduct is, was it overbearing to the point of making the

confession not voluntarily made? In Rogers v. Richmond (1961), Justice Frankfurter stated that involuntary confessions are “excluded not because such confessions are

unlikely to be true, but because the methods used to extract them offend an under-

lying principle in the enforcement of our criminal law; that ours is an accusatorial

and not an inquisitorial system—a system in which the state must establish guilt by

evidence independently and freely secured and may not by coercion prove its

charge against an accused out of his own mouth.” A seminal case illustrating the

“police conduct” aspect of coerced confessions is Colorado v. Connelly (1986), a case in which Connelly heard the “voice of God,” and it told him to confess. The state

court ruled the confession involuntary. The Supreme Court, however, overruled

and said Connelly’s confession was, in fact, voluntary because under the law, it is

the police conduct that is scrutinized as to whether it was overbearing.

The following conduct is considered to be among those that violate due process

(Ferdico et al., 2009, pp. 642–646):

■ Threats of violence (Arizona v. Fulminante, 1991; Beecher v. Alabama, 1967) ■ Confinement under shockingly inhumane conditions (United States v. Koch, 1977) ■ Interrogation after lengthy, unnecessary delays in obtaining a statement

between arrest and presentment before a neutral magistrate (McNabb v. United States, 1943; Mallory v. United States, 1957; Corley v. United States, 2009)

■ Continued interrogation of an injured and depressed suspect in a hospital

intensive-care unit (Mincey v. Arizona, 1978) ■ Deprivation of food, drink, and sleep (Greenwold v. Wisconsin, 1968)

Not all actions by police, even those that may not seem “fair,” have been found to

violate constitutional rights. The following examples of police actions have been

found to not violate due process (Ferdico et al., 2009, pp. 664–665):

■ Promises of leniency (United States v. Guarno, 1987) ■ Encouraging a suspect to cooperate (United States v. Ballard, 1978) ■ Promises of psychological treatment (United States v. McClinton, 1992) ■ Appeal to religious beliefs (Welch v. Butler, 1988) ■ Trickery and deceit (Frazier v. Cupp, 1969; People v. McNeil, 2000; State v. Schum-

acher, 2001; United States v. Bell, 2004)

Arizona v. Fulminante (1991) established that cases involving the admissibility of involuntary confessions could apply the harmless error doctrine: If no harm

resulted, the confession should be admissible. A key question in this case was

whether Fulminante’s confession was coerced. In this case, Fulminante was in

prison for one crime but was also suspected of having committed murder. A fellow

inmate offered to protect Fulminante if he would tell him the truth about the mur-

der, which he did. This inmate later became a state’s witness and disclosed Fulmi-

nante’s confession. The Court ruled that the confession was indeed coerced and,

therefore, involuntary. Because it was a key factor in his conviction, the error was

not harmless, and the conviction was reversed.

Characteristics of the Accused In addition to police conduct, courts will also

consider characteristics of the accused when assessing whether a confession was

voluntary. Taking a “totality of the circumstances” approach, factors such as the

harmless error doctrine involves the admissibility of

involuntary confessions: if no

harm resulted, the confession

should be admissible

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 341

defendant’s age, education and intelligence levels, emotional problems or mental

illness, and physical condition (including intoxication) will be considered in deter-

mining whether a confession was voluntary, but if it has not been coerced, a confes-

sion is presumed to have been voluntarily provided.

A Standard for Voluntariness

In Haynes v. Washington (1963), the Supreme Court held that the Fourteenth Amend- ment due process voluntariness test required examining the totality of the circum-

stances surrounding each confession. Was the admission truly voluntary? Were the

individual’s constitutional guarantees protected? Was the good of the people bal-

anced with the government and the accused’s freedoms? As with all constitutional

cases, the balance was delicate because the final result would vitally affect all con-

cerned, not only in the case at hand but also in all future matters that would depend

on the outcome. This case-by-case analysis was becoming cumbersome, with the

stakes too high to not have some better standard by which to judge whether the

confession was voluntary.

The next year saw a move away from case-by-case voluntariness analyses and

the forging of a standard. Two cases decided that year, Massiah v. United States (1964) and Escobedo v. Illinois (1964) (discussed in Chapter 11), considered a single occurrence: “When the process shifts from investigatory to accusatory—when its

focus is on the accused and its purpose is to elicit a confession . . . the accused must

be permitted to consult with his lawyer” (Escobedo). The court saw interrogation to elicit a confession as a critical stage in the judicial process. However, if a suspect

refuses to make a written statement without a lawyer present but does make an oral

confession, that confession has been held as admissible (Connecticut v. Barrett, 1987).

False Confessions

Research on false confessions has produced mixed results. Some researchers conclude

that the problem with false confessions is pandemic; others say false confessions are

rare. Sturman (2009) contends, “There is no question false confessions exist, but how

often they occur and the actual causes are speculation. In addition, academics have

begun appearing as expert witnesses attempting to convince the court false confes-

sions are commonplace and interrogation techniques are wrought with coercion.”

Some research suggests that the risk of false confessions is higher among the

mentally impaired and juveniles (O’Connor and Maher, 2009). More than 90 per-

cent of juveniles questioned by the police waive their Miranda rights and seek the assistance of a lawyer. O’Connor and Maher (2009, p. 72) identify three types of

false confessions:

■ Voluntary confessions—Those in which people claim responsibility for crimes

they did not commit without prompting from police. ■ Compliant confessions—Cases in which the suspect acquiesces to escape from a

stressful situation, to avoid punishment, or to gain a promised or implied reward. ■ Internalized false confessions—Those in which innocent but vulnerable sus-

pects, exposed to highly suggestive interrogation techniques, come to confess

as well as to believe they committed the crime in question.

At the heart of many cases examining confessions is the landmark Miranda decision.

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342 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Miranda v. Arizona Miranda v. Arizona (1966) is perhaps the best-known law enforcement case ever decided. This case, because of its notoriety, has arguably done more to teach consti-

tutional law to the general population than any other source. Most television and

movie watchers can recite the requirements set forth by Chief Justice Earl Warren

in this pivotal case and understand that the purpose of the warning is to let those

accused know they do have rights and to protect themselves.

Miranda is not without critics. The National Center for Policy Analysis says that because of Miranda “substantial numbers of criminal convictions are lost each year” and suggests that “Miranda may be the single most damaging blow to the nation’s crime fighting ability in the past half century.” Indeed, decades before Miranda the courts were grappling with the need to balance protection of individual freedom

and society’s need to solve crime, as Justice Robert H. Jackson stated in a concur-

ring opinion in Watts v. Indiana (1949): “The suspect neither had nor was advised of his right to get counsel. This presents a real dilemma in a free society. To subject one

without counsel to questioning which may and is intended to convict him, is a real

peril to individual freedom. To bring in a lawyer means a real peril to solution of

the crime, because, under our adversary system, he deems that his sole duty is to

protect his client—guilty or innocent—and that in such a capacity he owes no duty

whatever to help society solve its crime problem.”

The important Miranda case is discussed in detail because of its historical review of this area of law, the strong position the Chief Justice took in his opinion and the

equally strong dissents.

The Case

Ernesto Miranda was a poor 23-year-old with only a ninth-grade education. He was

arrested at his home for rape and was taken to the police station, where the complain-

ing witness identified him. Within two hours, he signed a written confession.

Miranda was never informed of his right to consult with an attorney, to have an

attorney present during questioning, or of his right not to be compelled to incriminate

himself. Although the confession was not admitted, he was convicted and sentenced

to 20 to 30 years in prison. [An interesting side note: Miranda was paroled in 1975. On release he hung around bars in a rough part of Phoenix. On New Year’s Eve 1976, he

was fatally stabbed in a bar fight. When police arrived they apprehended a suspect

and advised him, ironically, of his Miranda rights. The suspect exercised those rights and made no statement. No charges were ever filed in Miranda’s stabbing death.]

The legal issue in Miranda was whether the police must inform a suspect who is the subject of custodial interrogation of his constitutional rights concerning self-

incrimination and counsel before questioning. Chief Justice Warren wrote,

We hold that when an individual is taken into custody or otherwise deprived of

his freedom by the authorities and is subject to questioning, the privilege against

self-incrimination is jeopardized. Procedural safeguards must be employed. . . .

He must be warned prior to any questioning that he has a right to remain silent,

that anything he says can be used against him in a court of law, that he has the

right to the presence of an attorney, and that if he cannot afford an attorney one

will be appointed for him prior to any questioning if he so desires.

Miranda remains the prec edent case referred to by courts analyzing confess ion iss ues .

CASE IN BRIEF

Miranda v. Arizona (1966)

ISSUE Does it violate the Constitution to interrogate a

suspect in custody without first

advising of them about the right

to counsel and the protection

against self-incrimination?

RULING Yes. Custodial inter- rogations are done in a police-

dominated atmosphere such

that the questioning is inherently

coercive and intimidating. To limit

that, the suspect must be advised

of certain rights.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 343

Miranda extended the Escobedo decision and shifted the area of inquiry to the Fifth Amendment. Escobedo brought the right to counsel to the police station before trial; Miranda brought the right to counsel into the street if an interroga- tion is to take place. Miranda also changed the analysis of the Fifth Amendment protection against self-incrimination from a totality of the circumstances test for

voluntariness to whether those subjected to a custodial interrogation by police

were advised of their rights. However, it must be noted that both tests still exist,

and Miranda has not completely displaced the due process/voluntariness stan- dard. When a Miranda violation cannot be used to support an attack, voluntari- ness still can.

The Miranda Warning

Miranda took the unique step of actually directing police officers to tell individuals they had in custody, before questioning them,

four specific warnings. The Miranda warning itself may be read from a printed card or recited from memory and must include the

wording shown in the margin.

The Wording

After more than four decades, state and federal courts continue to

litigate the adequacy of dozens of variations of the particular

wording used by officers and continue to be reversed by the

Supreme Court (Rutledge, 2010b).

California v. Prysock (1981) was the first Supreme Court case to address this issue. In 1978, Randall Prysock brutally mur-

dered a woman. On the evening of the murder Prysock, a minor,

was arrested and brought to a substation of the Tulare County

Sheriff’s Department and advised of his Miranda rights. He declined to talk and, because he was a minor, his parents were notified. His par-

ents arrived, and after meeting with them, Prysock decided to answer police

questions and was advised of his constitutional rights. The advising officer told

Prysock that he had the “right to talk to a lawyer before you are questioned, to

have him with you while you are being questioned, and all during questioning.”

Prysock waived his rights, confessed, was convicted, and was sentenced to life

in prison.

The California Court of Appeals reversed the conviction, ruling that the Miranda warning was defective because the officer did not follow the “Standard” order for

covering the four components of the warning and varied from the usual language

used to describe the right to counsel. The court said that “the rigidity of the Miranda rules is the decision’s greatest strength.” On appeal the Supreme Court reversed the

California ruling, holding that the warning was not faulty: “This Court has never

indicated that the ‘rigidity’ of Miranda extends to the precise formulation of the warnings given a criminal defendant. Miranda itself indicated that no talismanic incantation was required to satisfy its strictures. It is clear that the police in this case

fully conveyed to the defendant his rights as required by Miranda. The Court of Appeal erred in holding that the warnings were inadequate simply because of the

order in which they were given.”

CASE IN BRIEF

California v. Prysock (1981)

ISSUE Is a Miranda warning valid if the words used by the

officer are not “a virtual incanta-

tion of the precise language con-

tained in the Miranda opinion”?

RULING Yes. The Supreme Court wrote that there is not a

required “talismanic incantation.”

What matters is the content of

the warning, not the specific

words used to convey the rights

protected by the warning.

The Constitution requires that I inform you that:

■ You have the right to remain silent.

■ Anything you say can and will be used against you in court.

■ You have the right to talk to a lawyer now and have him pres ent now or at any time during ques tioning.

■ If you cannot aff ord a lawyer, one will be app ointed for you without cost.

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344 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

A second key Supreme Court case addressing the wording of the Miranda warn- ing was Duckworth v. Eagan (1989). In this case the Court held that the Miranda warning does not need to be given verbatim—word for word—as stated in Miranda v. Arizona. What is required is that suspects’ rights as set forth in Miranda are clearly conveyed. As stated in Anderson v. State (1969), the question is “whether the words used by the officer, in view of the age, intelligence, and demeanor of the individual

being interrogated, convey a clear understanding of all Miranda rights.” The most recent ruling on the wording of the Miranda warnings is Florida v.

Powell (2010). In this case, a Florida state court convicted Kevin Powell of being a felon in possession of a firearm and sentenced him to 10 years in prison. Powell

appealed on the grounds that his admission should have been suppressed because

the officer did not specifically tell him he had the “right to have a lawyer present

during questioning.” The state appeals court ruled in favor of Powell, agreeing that

the statement should have been suppressed, and the Florida Supreme Court upheld

this ruling. Florida then appealed to the Supreme Court, which reversed citing

prior decision that no exact wording is required to satisfy Miranda: “The four warn- ings Miranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed. Our decisions in Prysock and Duckworth inform our judgment here. We reach the same conclusion; the two warn- ings reasonably conveyed Powell’s right to have an attorney present, not only at the

outset of interrogation, but at all times.”

How an officer provides the warnings becomes a tactical decision. Some officers may prefer to not read from a card. At times, an officer may think delivering the

warnings as stated directly on most Miranda cards could be too harsh, such as with younger suspects, and they may opt to recite a “soft” Miranda warning. The issue is whether all four warnings are adequately conveyed to the suspect. Any officer

could become flustered on the witness stand when told by defense counsel to recite

verbatim what was said. Could officers say with certainty they were able to remem-

ber the exact words months, maybe years, later in court? Many officers find the

Erik was arrested for kidnapping and assaulting a

six-year-old boy. After his arrest he was brought to

the precinct to be interrogated. While there, a child

abuse detective told the suspect, “Erik, you are

probably better off just keeping your mouth shut

when I ask you anything. But, if you don’t, you

have the right to an attorney and to have one pres-

ent during questioning. Also, if you can’t afford

one, an attorney will be provided for you. I will use

anything you tell me against you in court.”

The detective did not have a printed card with

the Miranda warnings. Erik chose to answer ques- tions that incriminated himself.

■ Did the officer’s warning adequately convey the protections of Miranda?

■ Does it matter what words the officer chose?

■ What problems may arise with using an officer’s own words to convey the Miranda warning rather than reading them off of a printed card?

Constitutional Law in ACTION

e n

g a

g e

L e

a rn

in g

2 0

1 5

MYTH If an officer does not recite the

Miranda warning exactly as set

forth in the by the Court in the

Miranda decision, it is invalid

and any statements made by the

suspect must be suppressed.

REALITY What matters is the content of

the warning, not the specific

words used to convey the rights

protected by the warning.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 345

routine of reading from the card will permit them to state this procedure in court

and read from the card on the stand if so requested.

Premature Miranda Warnings

“‘You are under arrest; you have the right to remain silent’ are routinely used by

police and are essentially known to everyone in the country. However, the idea that

the words ‘You are under arrest’ should always be promptly followed by the words

‘You have the right to remain silent’ is a myth. . . . In fact, they are two distinct

declarations. They should often NOT be used together” (Means and McDonald,

2010a, p. 16).

In Oregon v. Elstad (1985), the Supreme Court acknowledged, “Miranda warnings may inhibit persons from giving information,” an experience every law enforcement

officer has had. FBI statistics show that the national clearance rate for violent crimes

plunged 28 percent after the Miranda decision and has never recovered. “These facts mean that officers are not well-advised to give unnecessary Miranda warnings, risk- ing the needless loss of a potential confession” (Rutledge, 2009a, p. 62).

Indeed, “Mirandizing too soon can be a mistake” (Rutledge, 2009b, p. 60). The Supreme Court has never held that Miranda warnings are required simply because a person is in custody or simply because a person not in custody is interrogated.

The need for a warning is triggered by “the interaction of custody and official inter- rogation” (Illinois v. Perkins, 1990). Thus, “To ensure admissibility of statements, give Miranda warnings just before commencement of apparent custodial police interrogation—not sooner” (Rutledge, 2009b, p. 63).

When the Miranda Warning Must Be Given

“Miranda warnings are triggered by a simple formula: Custody + Interrogation = The requirement for Miranda warnings” (Petrocelli, 2010, p. 18). The Miranda deci- sion defined interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action

in a significant way.” The Court has defined custodial interrogation as “question-

ing initiated by law enforcement officers after a person has been taken into custody

or otherwise deprived of his freedom of action in any significant way,” adding,

“This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused” (Oregon v. Mathiason, 1977).

Custody Different nuances in different cases may make deter-

mining whether the person was actually in custody an issue. Even being handcuffed in a squad car may be a stop and not an arrest, but the difference can be a thin line. When in doubt, an officer

should advise the person of his or her rights; however, this proce-

dure becomes a matter of circumstances and officer discretion.

The real problem comes when an officer is not aware of the law and neglects to act

accordingly. Confusion over whether a person is in custody may be clarified by making two basic inquiries:

1. Has the person been told by police that he or she is under arrest?

2. Has the person been deprived of freedom to the degree one associates with

formal arrest, based on a totality of the circumstances?

custodial interrogation questioning by law enforcement

officers after a person has been

taken into custody or otherwise

deprived of freedom of action in

any significant way

The Miranda warning must be given to a suspect interrogated in police custody, that is, wh en the suspect is not fr ee to leave.

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346 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Here is a fine-line difference of which officers should be aware. In a Fourth

Amendment context, for seizure purposes, a person must be deprived of freedom

in a significant way so that he or she does not feel reasonably free to leave the situ-

ation. However, in a Fifth Amendment context, the question used to define when

custody occurs for Miranda becomes whether the person considers themselves not free to leave to the point that one would associate the situation with formal arrest.

In other words, if the police will not allow the person to leave to the degree that one

reasonably associates with a formal arrest, that person is in custody for Miranda purposes, even if the police have not said, “You’re under arrest.” This circumstance

echoes the statement of the court in California v. Beheler (1983) that, for the purpose of Miranda, the ultimate determinant of whether a person is “in custody” is “whether the suspect has been subjected to a formal arrest or to equivalent

restraints on his freedom of movement.”

Suspect under Arrest An arrested person is in custody and must be given the Miranda warning if he or she is to be questioned by police. All detentions may not require the Miranda warning. Even if a person is the suspect of a crime and being questioned, unless the interrogation is done while the suspect is in custody or

deprived of freedom in any significant way, the Miranda warning need not be given (Beckwith v. United States, 1976). This decision was echoed in Berkemer v. McCarty (1984) when the Court held, “The . . . noncoercive aspect of ordinary traffic stops

prompts us to hold that persons temporarily detained pursuant to such stops are not

‘in custody’ for the purposes of Miranda.” In addition, Pennsylvania v. Muniz (1990) established that police may ask routine questions of individuals suspected of driving

under the influence of alcohol or drugs and ask them to perform certain tests without

giving them the Miranda warning. Police may also videotape the responses given.

Suspect at the Police Station If police direct a suspect to come to the police station for questioning or take the suspect there, this atmosphere is coercive and the

Miranda warning is required. If, however, the suspect voluntarily comes to the sta- tion, no warning is required. As noted in Miranda, “There is no requirement that police stop a person who enters a police station and states that he wishes to confess

to a crime, or a person who calls the police to offer a confession or any other state-

ment he desires to make. Volunteered statements of any kind are not barred by the

Fifth Amendment and their admissibility is not affected by our holding today.”

This circumstance occurred in Oregon v. Mathiason (1977), when Mathiason volun- tarily came to the police station and was not read Miranda before providing self- incriminating statements. The Supreme Court said,

Any interview of one suspected of a crime by a police officer will have coercive

aspects to it, simply by virtue of the fact that the police officer is part of a law

enforcement system which may ultimately cause the suspect to be charged with

a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be

imposed simply because the questioning takes place in the station house, or

because the questioned person is one whom the police suspect. Miranda warn- ings are required only where there has been such a restriction on a person’s

freedom as to render him “in custody.” It was that sort of coercive environment,

which Miranda by its terms was made applicable, and to which it is limited.

MYTH The police cannot ask you any

questions once you are under

arrest unless they read you

Miranda.

REALITY This is false. Routine booking

questions such as name, birth

date, or address are not considered

investigatory in nature and are

unlikely to produce incriminating

statements.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 347

Through the Court’s opinion, clarifications have been made to avoid ambiguities.

The same is usually true of questioning a suspect in a police car. If the suspect

is told to get into the car, it is usually a custodial situation, especially if the person

cannot get out of the car or will not be let out if he or she asks.

If, on the other hand, someone flags down a police car and makes a voluntary

confession of a crime he or she just committed, no Miranda warning is required. If the officer did not ask any questions of the suspect, no Miranda is necessary, and the warning is not required if the person just walks up to an officer and

is not in custody and confesses (United States v. Jonas, 1986; United States v. Wright, 1993).

Suspect Is in Custody for Another Offense When a suspect is already in custody for another offense, it would seem the Miranda warning must be given before any ques- tioning begins. However, this can be a thorny area because the type of custody is

not always clear. For example, in Howes v. Fields (2012), the Court said that just because someone is in prison and in custody (in that context), they are not in cus-

tody per se for Miranda purposes. In the Howes decision, the Court quoted Illinois v. Perkins (1990) and held, “. . . we ‘rejected the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense.’. . . ”

Other Factors Indicating a Custodial Situation Most kinds of physical restraint place the situation within the Miranda requirement. As found in People v. Shivers (1967), if a police officer holds a gun on a person, that person is in custody and

not free to leave. If, however, the suspect also has a gun, he or she would

unlikely be considered in custody (Yates v. United States, 1967). Consider, for purposes of illustration, this nonexhaustive list used recently by the Eighth Cir-

cuit in United States v. Muhlenbruch (2011) to determine whether custody existed under Miranda:

■ whether the suspect was informed that he was free to leave and that answer-

ing was voluntary; ■ whether the suspect possessed freedom of movement; ■ whether the suspect initiated contact or voluntarily acquiesced; ■ whether strong-arm tactics or strategies were employed; ■ whether the atmosphere was police dominated; ■ whether the suspect was placed under arrest at the end of questioning.

Interrogation The second element that must be present to trigger Miranda is interrogation. Interrogation is commonly thought of as the formal, systemic, often

intensive questioning by law enforcement of a person suspected of criminal activity.

The purpose of interrogation is to elicit evidence or other information relevant to a

crime that incriminates the provider of the information as the perpetrator of the ille-

gal action. As already discussed, when such information is provided voluntarily, as

with spontaneous statements, no Miranda warning is required because the commu- nication was not the product of an interrogation or express questioning by the police:

“Confessions remain a proper element in law enforcement. Any statement given

freely and voluntarily without any compelling influences is, of course, admissible in

evidence. . . . Volunteered statements of any kind are not barred by the Fifth Amend-

ment and their admissibility is not affected by our holding today” (Miranda v. Arizona, 1966).

CASE IN BRIEF

Oregon v. Mathiason (1977)

ISSUE Is a suspect automati- cally considered in custody for

Miranda purposes if the question-

ing takes place at the police

station?

RULING No. Mathiason came to the station on his own after

being contacted by telephone,

and he was told he was not

under arrest and could leave at

any time. In fact, he left after

30 minutes of questioning.

He was never in custody.

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348 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

In Rhode Island v. Innis (1980), the Supreme Court further clarified what is meant by interrogation. In this case, a taxicab driver had been robbed by a man wielding

a sawed-off shotgun. Shortly after the robbery, the victim identified a picture of

Thomas Innis as that of the assailant. A patrolman in Providence, Rhode Island,

spotted Innis, who was unarmed, on the street, arrested him and advised him of his

rights under Miranda v. Arizona. When other police officers arrived at the arrest scene, Innis was twice again advised of his Miranda rights, and he stated that he understood his rights and wanted to speak with a lawyer. Innis was then placed in

a police car to be driven to the central station in the company of three officers, who

were instructed not to question Innis or intimidate him in any way.

While en route to the station, two of the officers engaged in a conversation

between themselves concerning the missing shotgun. One of the officers stated that

there were “a lot of handicapped children running around in this area” because a

school for such children was located nearby, and “God forbid one of them might find

a weapon with shells and they might hurt themselves.” Innis interrupted the conver-

sation, stating that the officers should turn the car around so he could show them

where the gun was located. On returning to the scene of the arrest where a search for

the shotgun was in progress, Innis was again advised of his Miranda rights, replied that he understood those rights but that he “wanted to get the gun out of the way

because of the kids in the area in the school” and then led the police to the shotgun.

Before trial on charges of kidnapping, robbery, and murder of another taxicab

driver, the trial court denied Innis’s motion to suppress the shotgun and the state-

ments he had made to the police regarding its discovery, and Innis was subsequently

convicted. The Rhode Island Supreme Court set aside the conviction and held that

Innis was entitled to a new trial, concluding that Innis had invoked his Miranda right to counsel and that, contrary to Miranda’s mandate that, in the absence of counsel, all custodial interrogation then cease, the police officers in the vehicle had “interro-

gated” Innis without a valid waiver of his right to counsel. The case went to the

Supreme Court to decide the issue of whether Innis was interrogated in violation of

the standards promulgated in the Miranda opinion. The Court held that, no, Innis had not been interrogated and set forth the following definition of interrogation:

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.

That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other

than those normally attendant to arrest and custody) that the police should

know are reasonably likely to elicit an incriminating response from the suspect.

The latter portion of this definition focuses primarily upon the perceptions

of the suspect, rather than the intent of the police. This focus reflects the fact that

the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to

objective proof of the underlying intent of the police. A practice that the police

should know is reasonably likely to evoke an incriminating response from a

suspect thus amounts to interrogation. But, since the police surely cannot be

held accountable for the unforeseeable results of their words or actions, the defi-

nition of interrogation can extend only to words or actions on the part of police

officers that they should have known were reasonably likely to elicit an incrimi-

nating response.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 349

The Court concluded,

The case thus boils down to whether, in the context of a brief conversation, the

officers should have known that the respondent would suddenly be moved to

make a self-incriminating response. Given the fact that the entire conversation

appears to have consisted of no more than a few offhand remarks, we cannot say

that the officers should have known that it was reasonably likely that Innis

would so respond. . . . It is our view, therefore, that the respondent was not sub-

jected by the police to words or actions that the police should have known were

reasonably likely to elicit an incriminating response from him.

The case was vacated and remanded.

Thus, via Innis, the Court set forth the definition of an interrogation as the formal, systemic, express questioning by law enforcement of a person suspected of

criminal activity, as well as the functional equivalent of express questioning (any

words or actions on the part of the police, other than those normally attendant to

arrest and custody, that the police should know are reasonably likely to elicit an

incriminating response from the suspect). Absent this second trigger, Miranda is not required.

Waiving and Invoking the Rights

A waiver is a purposeful, voluntary giving up of a known right. Suspects must

know and understand their constitutional rights to legally waive them. The

Supreme Court in Miranda set forth that a statement will be admissible only if the government meets its “heavy burden” of demonstrating “that the defendant know-

ingly and intelligently waived his privilege against self-incrimination and his right

to retained or appointed counsel.” In other words, to waive Miranda, a person must

interrogation the formal, systemic, express questioning by

law enforcement of a person

suspected of criminal activity, as

well as the functional equivalent

of express questioning (any words

or actions by the police, other

than those normally attendant to

arrest and custody, that the police

should know are reasonably likely

to elicit an incriminating response

from the suspect)

waiver a purposeful and volun- tary giving up of a known right

CASE IN BRIEF

Rhode Island v. Innis (1980)

ISSUE Is it interrogation for officers to converse in front of an

arrestee when that conversation

results in the arrestee incriminat-

ing himself?

RULING No. An interrogation occurs only when the words or

actions by the police, other than

routine booking questions, are

such that the police should know

they are reasonably likely to elicit

an incriminating response from

the suspect.

Officer Jones is on patrol near an interstate high-

way. He is checking for drivers violating the speed

limit with his radar. He sees a car approaching at a

high rate of speed, and his radar shows it is travel-

ing 20 mph over the posted speed limit. He follows

the car and pulls it over.

The car has two people in it, a driver and a pas-

senger. The officer sees an open bottle of beer in

between the driver and passenger. The officer also

finds out that both people have arrest warrants. He

places the two under arrest, puts them in his squad

car, and returns to the car he pulled over to recover

the beer and conduct an inventory search before he

tows it from the interstate.

While in the squad car, the two talk back and

forth about how they have a stolen gun hidden under

the dashboard. The two do not know that the officer’s

squad camera is recording their conversation. At no

time does the officer ask the two any questions.

The car is towed and the two people are

brought to jail. Later, the officer listens to the

recording and hears the conversation about the

gun. He obtains a search warrant for the car and

locates the stolen gun. The two are charged with

having a stolen gun. The recorded conversation is

introduced at trial and is used to convict the two.

■ Are the two in custody?

■ Does Miranda apply? Why or why not?

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350 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

do so voluntarily (i.e., without pressure), knowingly, and intelli-

gently (i.e., understanding what the right is and what the conse-

quences of waiving it are). These stipulations were further

clarified in Colorado v. Connelly (1986), when the Court made it clear that a waiver must be shown to have occurred by a prepon-

derance of the evidence. Silence alone, however, is not a waiver.

The Supreme Court in Tague v. Louisiana (1980) reempha- sized that the government has the “heavy burden” of showing

the person was competent to relinquish these rights, meaning

the police must always consider suspects’ competency to under-

stand and waive their rights. People who are under the influ-

ence of alcohol or other drugs, are physically injured, are in

shock, or are very young or very old may have difficulty under-

standing the situation. Also, suspects may rescind the waiver at

any point in the interrogation. People must possess sufficient competence to

understand they are waiving a crucial constitutional right.

The flip side of a waiver, or relinquishing of rights, is an invocation, or a stated

intent to exercise a given right. As noted, if after hearing a police officer read the

Miranda warning the suspect remains silent, this silence is not a waiver but neither is it a clear statement that a person intends to invoke their right to remain silent.

Paradoxically, a suspect who wishes to exercise, or invoke, his or her right to

remain silent must first speak up and unambiguously state that desire (Berghuis v. Thompkins, 2010). It is important to recognize the two distinct rights a suspect may invoke under Miranda: the right to remain silent and the right to counsel. Although a waiver applies to both, these two rights are distinct when invocated, and the

police have different rules to follow depending on which right is invocated.

Thus, waiving and invoking rights are separate but related concepts that often

go hand in hand. Keep the distinctions in mind as you read the following discus-

sion because it goes back and forth between waiver cases and invocation cases. The

point to remember is that individuals must unambiguously invoke their rights, just

as they must voluntarily, knowingly, and intelligently waive their rights. But if they

do not expressly and unambiguously invoke a right, they might nonetheless waive

it by their conduct and the surrounding circumstances.

Right to Remain Silent At any time during questioning, the defendant may

choose to exercise or invoke the right to remain silent. Michigan v. Mosley (1975) involved a case in which the defendant had invoked his right to remain silent and

then was questioned about a different case. Richard Mosley was arrested in Detroit

for robberies, was Mirandized and said he would not talk about the robberies. No

questioning took place. Two hours later a homicide detective told Mosley he

wanted to talk about a murder. After a new set of Miranda warnings, Mosley waived his rights and made incriminating statements. The Supreme Court ruled

that the admission was admissible: “Under the Mosley rule, a suspect who has invoked only his right to silence can be re-approached to seek a waiver on a

different case” (Rutledge 2010c, p. 66). Technically, it does not matter if the ques-

tioning involves the same or different cases. What matters, in what has since been

dubbed the Mosley analysis, is that the “right to remain silent was scrupulously honored.” Here, the passage of two hours, the different crime inquired about and

invoke to unambiguously exercise a right

If aft er hearing a police offi cer read the Miranda warning, suspect s remain silent, this silence alone is not a waiver. To waive their rights, suspect s must show (1) that they understand their rights and (2) conduct indicative of a waiver, such as agreeing to voluntarily answer ques tions without a lawyer pres ent.

CASE IN BRIEF

Michigan v. Mosley (1975)

ISSUE Once the right to remain silent is invoked by a

suspect under Miranda, may the

police approach the suspect and

question him again later?

RULING Yes, the invocation of the right to silence is not perma-

nent. As long as the right of the

suspect to stop the questioning

was “scrupulously honored” by

the police and ceased immedi-

ately, they may re-approach after

a “cooling off” period.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 351

the different detective asking questions are all factors in showing the right was

scrupulously honored.

Colorado v. Spring (1987) established that a waiver of Miranda rights is valid, even though the suspect thought the questioning was going to be about a minor

crime, but the police changed their line of questioning to inquire about a more seri-

ous crime. At this point the suspect could invoke his right to silence.

Patterson v. Illinois (1988) established that a waiver includes waiving both the right against self-incrimination and the right to counsel. There is often confusion

about what constitutes a valid waiver and what constitutes an invocation of

those rights, especially when the suspect is ambiguous. One case that helped

better define when a suspect has waived his or her Miranda rights was Berghuis v. Thompkins (2010), which involved the habeas corpus appeal of a defendant con- victed in the shooting of two people outside a Michigan mall. The perpetrator,

Van Chester Thompkins, was arrested in Ohio a year after the shooting and was

interviewed there by two local Michigan officers. Thompkins was advised of his

Miranda rights but refused to sign the waiver form. He indicated, however, that he understood his rights. During a three-hour taped interview, Thompkins

said little, giving one-word answers to questions. The Supreme Court held that

Thompkins had, indeed, waived his Fifth Amendment right against self-

incrimination by responding to the question and that if a suspect wants to assert

either his right to counsel or his right to silence, it is up to him to do so unequiv-

ocally and unambiguously: “A suspect who has received and understood his

Miranda rights, waives the right to remain silent by making an uncoerced state- ment to police.”

This decision has made obtaining a waiver of Miranda rights easier: “A binding invocation of the right to silence now requires the suspect to make an unambiguous

statement asserting that he does not want to talk to law enforcement or that he

wants to remain silent. . . . The Supreme Court’s ‘clarifications’ have somewhat

tightened the requirements for invoking Miranda rights and loosened Miranda waiver requirements—both positions that favor law enforcement” (Means and

McDonald, 2010b, p. 19).

CASE IN BRIEF

Berghuis v. Thompkins (2010)

ISSUE Does a valid Miranda waiver need to be explicit?

RULING No. All that needs to be shown is that the suspect

made a voluntary choice to speak

and that it was done “with a full

awareness [knowingly and intel-

ligently] of both the nature of the

right being abandoned and the

consequences of the decision to

abandon it.”

Grant is arrested for punching his wife in the nose

during an argument. While he is sitting hand-

cuffed in the back of a squad car, the officer reads

Grant his Miranda rights. After the rights are read, the officer asks Grant

some questions about the incident. Grant sits there,

silently, and occasionally nods his head in response

to the officer’s question. After about 10 minutes of

this, Grant says, “I don’t know if I should talk to

you after all.”

The officer asks Grant some more questions,

and Grant answers these questions in great detail,

despite his statement about not knowing if he

should “talk” to the officer. These answers are later

used to convict Grant for domestic assault.

■ Was Grant’s statement ambiguous?

■ Does the fact that Grant was initially silent show he invoked his right to silence? Why or why not?

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352 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Although police and prosecutors have hailed the Berghuis decision as a triumph for justice, and defense attorneys have denounced it as an unjust “retreat” from

standard protocol established in Miranda, some scholars contend that the decision merely reaffirmed a principle established three decades previously in North Carolina v. Butler (1979), a right-to-counsel case in which the Supreme Court first recognized that a defendant’s implied waiver was sufficient to make his statements admissible under Miranda (Rutledge, 2010a).

Right to Counsel In Butler, Willie Butler, who was under arrest for certain crimes and had been advised of his rights under Miranda v. Arizona, made incrimi- nating statements to the arresting officers. His motion to suppress evidence of these

statements on the ground that he had not waived his right to assistance of counsel

at the time the statements were made was denied by a North Carolina trial court,

and he was subsequently convicted. The North Carolina Supreme Court reversed,

holding that Miranda requires that no statement of a person under custodial inter- rogation may be admitted in evidence against him unless, at the time the statement

was made, he explicitly waived the right to the presence of a lawyer.

The case was reviewed by the U.S. Supreme Court, which vacated and

remanded, holding, “An explicit statement of waiver is not invariably necessary to

support a finding that the defendant waived the right to counsel guaranteed by the

Miranda case. The question of waiver must be determined on the particular facts and circumstances surrounding the case, and there is no reason in a case such as

this for a per se rule, such as that of the North Carolina Supreme Court. By creating an inflexible rule that no implicit waiver can ever suffice, that court has gone

beyond the requirements of federal organic law, and thus its judgment cannot

stand, since a state court can neither add to nor subtract from the mandates of the

United States Constitution.” Thus, the U.S. Supreme Court held in Butler that, “in at least some cases, waiver can be clearly inferred from the actions and words of the

person interrogated.” Since that decision some lower courts have allowed implied

waivers but others have not.

In Edwards v. Arizona (1981), the Supreme Court held that after a person has been given his or her Miranda warnings and then invokes his or her right to have legal counsel, the suspect cannot be re-approached, either by the same or different

officers, and cannot be questioned further until a lawyer is made available. Edwards refers to the Miranda right to counsel only, and the Edwards decision has since been modified under Shatzer.

In Maryland v. Shatzer (2010), the Court effectively set an expiration date on the right-to-counsel invocation by announcing a new “14-day break-in-custody”

rule. This ruling changed Miranda protocol under Edwards by allowing police the authority to initiate contact with a suspect who had previously asserted the right

to counsel if at least 14 days had passed since the original invocation of that

right. Before this ruling, the police were allowed contact with the suspect only if:

(1) the suspect initiated further communication or (2) counsel was made avail-

able. Shatzer changed this and added to conditions 1 and 2 the provision that after a 14-day break in custody, the Edwards rule expires and officers can re-approach.

In 2003, a detective questioned Michael Blaine Shatzer, who was in prison for a

prior conviction, about allegations Shatzer had sexually abused his own son.

CASE IN BRIEF

North Carolina v. Butler (1979)

ISSUE Does a waiver need to be explicit to be valid?

RULING No. A combination of silence, an understanding of

rights, and conduct can indicate

a valid waiver.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 353

Shatzer invoked his Miranda right to have counsel present during interrogation, so the detective terminated the interview. Shatzer was released back into the general

prison population, and the investigation was closed.

Another detective reopened the investigation in 2006 and attempted to interro-

gate Shatzer, who was still incarcerated. Shatzer waived his Miranda rights and made inculpatory statements, which the trial court refused to suppress, reasoning

that Edwards v. Arizona did not apply because Shatzer had experienced a break in Miranda custody before the 2006 interrogation. Shatzer was convicted of sexual child abuse. The Court of Appeals of Maryland reversed, holding that the mere

passage of time does not end the Edwards protections, and that, assuming a break- in-custody exception to Edwards existed, Shatzer’s release back into the general prison population did not constitute such a break. The Supreme Court, however,

disagreed:

Shatzer’s release back into the general prison population constitutes a break in

Miranda custody. Lawful imprisonment imposed upon conviction does not cre- ate the coercive pressures produced by investigative custody that justify

Edwards. When previously incarcerated suspects are released back into the gen- eral prison population, they return to their accustomed surroundings and daily

routine—they regain the degree of control they had over their lives before the

attempted interrogation. Their continued detention is relatively disconnected

from their prior unwillingness to cooperate in an investigation. The “inherently

compelling pressures” of custodial interrogation ended when Shatzer returned

to his normal life.

Thus, as long as 14 days have passed and the suspect has been out of Miranda, or police, custody for that time, having returned to his or her “normal” life, the sus-

pect can be re-approached without violating Edwards.

CASE IN BRIEF

Maryland v. Shatzer (2010)

ISSUE Does the Edwards rule extend the ban on questioning

indefinitely, or may officers

re-approach a suspect for

questioning despite a request

for counsel at a previous point

in time?

RULING It does not extend indefinitely. As long as there is

a break in custody of 14 days,

officers may re-approach the

suspect despite the initial request

for counsel.

Billy is arrested for burglary of his neighbor’s

house. He is brought to the police station and read

the Miranda warning. He is then asked by the detec- tive if he would answer some questions regarding

the burglary. Billy says that he wants to get a law-

yer first. All questioning stops, and Billy is later

released pending charges.

Two months pass, and the detective investigat-

ing the case has some new evidence. Billy’s DNA

has been recovered from a soda can that was taken

from the neighbor’s refrigerator and opened, with

some of its contents consumed.

The detective finds Billy at Billy’s house and

arrests him. Billy is brought to the station house

and is again read the Miranda warning. This time,

Billy answers the detective’s questions about the

burglary. Billy’s responses to the second interroga-

tion are later used to convict Billy of burglary.

■ Was Billy in custody?

■ How does Billy’s previous arrest affect the detective’s ability to question him?

■ Could the detective re-approach Billy and ask him questions? Why or why not?

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354 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

In Arizona v. Roberson (1988), Ronald Roberson was arrested for burglary and read his Miranda rights. He said he wanted a lawyer, so no questions were asked. Three days later a different officer, unaware of the prior invocation of counsel,

approached Roberson, who was still in custody, about a different burglary and read

Roberson his Miranda rights, but this time Roberson waived his rights and provided a statement on the case. The Supreme Court suppressed, saying before starting an

interrogation officers were obligated to learn about previous invocations. After a

defendant invokes the right to counsel, police may not interrogate him, even about

a different crime, unless the command of Shatzer has been followed. In Minnick v. Mississippi (1990), Robert Minnick escaped from a Mississippi jail

and was captured by the FBI in California. After being Mirandized, Minnick

asserted his right to counsel and an attorney was appointed. Minnick and the attor-

ney met several times over the next three days before Mississippi officers arrived to

question him. He waived his rights and made incriminating statements. The

Supreme Court suppressed, saying that merely having a court-appointed attorney

does not satisfy the Edwards requirement that the attorney be physically present during any subsequent custodial interrogation by any officers on any case.

In Davis v. United States (1994), after a fatal attack by one sailor on another with a pool cue over a pool game, the police arrested Robert Davis and questioned him

after advising him of his Miranda rights. After one and a half hours of talking to the police Davis said, “Maybe I should talk to a lawyer,” but then said, “No, I don’t

want a lawyer,” so the questioning continued. Finding that the statement was not

an unambiguous invocation of the right to counsel, the Supreme Court upheld

admission of Davis’s statements and unanimously affirmed his conviction and

sentence: “We decline to adopt a rule requiring officers to ask clarifying questions.

If the suspect’s statement is not an unambiguous or unequivocal request for coun-

sel, the officers have no obligation to stop questioning him.”

Interestingly, some states do require clarification questions under their state

constitutions. In Minnesota, for example, suspects are afforded one further level of

protection. Where a suspect’s request is “equivocal or ambiguous” but “subject to

a construction that the accused is requesting counsel, all further questioning must

stop except that narrow question designed to ‘clarify’ the accused’s true desires

respecting counsel may continue” (State v. Robinson, 1988). Specific language that does not require questioning to stop includes:

■ “I just don’t think that I should say anything.” (Burket v. Angelone, 2000) ■ “I don’t got nothing to say.” (United States v. Banks, 2003) ■ “Could I call my lawyer?” (Dormire v. Wilkinson, 2001)

Beachheading or “Question First”

Sometimes suspects will make self-incriminating statements before police can

advise them of their Miranda protections. In sharp contrast to these uncoerced, spontaneous confessions are those unconstitutionally elicited statements derived

from beachheading, or a deliberate “end runs” around Miranda. Purposely with- holding Miranda warnings until after a confession is obtained and then giving Miranda to re-ask the question has been found by the Supreme Court to be improper.

Oregon v. Elstad (1985) established that if police obtain a voluntary admission from a suspect without first advising the suspect of the right to remain silent, a

beachheading the unconstitutional approach of

purposely withholding the

Miranda warnings until after a

confession is obtained and then

giving Miranda to re-ask the

question

CASE IN BRIEF

Davis v. United States (1994)

ISSUE Does an ambiguous request for an attorney under

Miranda require police to

immediately stop questioning the

suspect?

RULING No. Any request for an attorney must be clear and

unequivocal.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 355

confession made after the Miranda warning is given will be admissible: “Absent deliberately coercive or improper tactics in obtaining the initial statement, the mere

fact that a suspect has made an unwarned admission does not warrant a presump-

tion of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to

remove the conditions that precluded admission of the earlier statement.”

In contrast, when police deliberately “beachhead” or withhold Miranda in an attempt to elicit a confession first, as was the case in Missouri v. Seibert (2004), it will be seen as a violation of a suspect’s rights. In this case, Patrice Seibert was arrested

as a suspect in a fatal arson and taken into custody but was not read her rights

under Miranda. At the police station, an officer questioned her for 30 to 40 minutes and obtained a verbal confession to the crime. The officer then gave Seibert a

20-minute break, returned to give her Miranda warnings and obtained a signed waiver. He resumed questioning, confronting Seibert with her prewarning state-

ments and getting her to repeat the information. Seibert moved to suppress both

her prewarning and postwarning statements. The officer testified that he made a

conscious decision to withhold Miranda warnings and question first, then give the warnings and then repeat the question until he got the answer previously given.

The district court suppressed the prewarning statement but admitted the postwarn-

ing one, and Seibert was convicted of second-degree murder. The Missouri Court

of Appeals affirmed, finding the case indistinguishable from Oregon v. Elstad, in which the Supreme Court held that a suspect’s unwarned inculpatory statement

made during a brief exchange at his house did not make a later, fully warned incul-

patory statement inadmissible.

In reversing, the state supreme court held that because the interrogation was

nearly continuous, the second statement, which was clearly the product of the

invalid first statement, should be suppressed and distinguished Elstad on the ground that the warnings had not intentionally been withheld there. The U.S.

Supreme Court affirmed, noting that the objective of a question-first approach is

to render Miranda warnings ineffective by waiting to give them until after the sus- pect has already confessed and emphasizing that a critical difference between the

two cases was that in Elstad, the failure to preliminarily provide the Miranda warn- ing was a “good faith” mistake, not a conscious decision. Thus in Seibert, the Court, in a 5–4 vote, rejected the two-step questioning tactic as a deliberate way to side-

step Miranda:

Elstad does not authorize admission of a confession repeated under the question- first strategy. The contrast between Elstad and this case reveals relevant facts bearing on whether midstream Miranda warnings could be effective to accom- plish their object. . . . In Elstad, the station house questioning could sensibly be seen as a distinct experience from a short conversation at home, and thus the

Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. Here, however, the unwarned

interrogation was conducted in the station house, and the questioning was

systematic, exhaustive and managed with psychological skill. The warned

phase proceeded after only a 15-to-20 minute pause, in the same place and with

the same officer, who did not advise Seibert that her prior statement could not

be used against her. These circumstances challenge the comprehensibility and

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356 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes could not have understood them to convey a message that she

retained a choice about continuing to talk. . . .

That the interrogating officer relied on respondent’s prewarning statement

to obtain the postwarning one used at trial shows the temptations for abuse

inherent in the two-step technique. Reference to the prewarning statement was

an implicit, and false, suggestion that the mere repetition of the earlier statement

was not independently incriminating. The Miranda rule would be frustrated were the police permitted to undermine its meaning and effect. (Missouri v. Seibert, 2004)

Miranda Survives a Challenge—Dickerson v. United States

If a feature movie were made about the Fifth Amendment right against self-incrim-

ination, it would undoubtedly be based on Dickerson v. United States (2000). The case has everything: history, Congress versus the Supreme Court, police versus crimi-

nals, good versus evil, the quest for truth and justice and heated exchanges between

Supreme Court Justices, and it provides a comprehensive review of how this area of criminal procedure developed and why. The entire legal community anxiously

awaited the opinion of the Court as to whether Miranda would remain the law. The drama unfolded the morning of June 27, 2000, when Chief Justice William

H. Rehnquist himself delivered the opinion of the Court, which he had written, as

had Chief Justice Warren with Miranda. Tension was thick, but Miranda was upheld by a 7–2 vote, with Rehnquist, an outspoken critic of Miranda for nearly 30 years, siding with the majority. In this case, Charles Dickerson was indicted for bank rob-

bery using a firearm. He moved to suppress his statement made to the FBI based on

their not advising him of his rights per Miranda before being interrogated. The government relied on a federal law, Section 3501 of the Omnibus Crime Control and

Safe Streets Act of 1968, which stated that the admissibility of statements should

turn only on whether they were voluntarily made, and not only on whether the

Miranda warning had been given. The case had two major issues: (1) whether Miranda would remain in effect when a federal statute did not require it and (2) whether Congress could enact a law contrary to that which the Supreme Court had

declared to be the constitutional requirement.

Proving again that the various laws are not isolated unto themselves but rely on

one another, the Supreme Court returned to a case discussed previously— Marbury v. Madison (1803)—to address whether Congress could supercede the Supreme Court. In using a precedent set nearly 200 years ago, Chief Justice Rehnquist repeated

what was determined by Marbury: “Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress. . . . The law is clear

as to whether Congress has constitutional authority to do so. This Court has

supervisory authority over the federal courts to prescribe binding rules of evidence

and procedure.”

The second issue, whether Miranda would remain good law, is discussed in great detail that reviews the history of Fifth Amendment self-incrimination law. The

federal statute in issue returned to a totality of the circumstances to determine

whether the statement was voluntary and not strictly requiring the Miranda

CASE IN BRIEF

Missouri v. Seibert (2004)

ISSUE When police intention- ally fail to give a Miranda warning

to a suspect, is a subsequent

statement that was Mirandized

and repeats the initial statement

admissible in court?

RULING No. Under the facts of this case, failing to warn was

part of a police strategy to under-

mine the protections of Miranda.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 357

warnings be given. This action, in effect, was a return to what cases before Miranda held. The Court found, “Stare decisis weighs heavily against overruling it now. Even in constitutional cases, stare decisis carries such persuasive force that the Court has always required a departure from precedent to be supported by some special justi-

fication. . . . There is no such justification here. Miranda has become embedded in routine police practice to the point where the warnings have become part of our

national culture.” The opinion went on to state, “Experience suggests that [this

federal statute’s] totality-of-the-circumstances test is more difficult than Miranda for officers to conform to, and for courts to apply consistently. The requirement that

Miranda warnings be given does not dispense with the voluntariness inquiry, but cases in which a defendant can make a colorable argument that a self-incriminating

statement was compelled despite officers’ adherence to Miranda are rare.” In sharp dissent, Justices Clarence Thomas and Antonin Scalia accused their colleagues of

dismissing previous rulings in which Miranda’s constitutional underpinnings were questioned. “Since there is in fact no other principle that can reconcile today’s judg-

ment with the post-Miranda cases that the court refuses to abandon,” wrote Scalia, “what today’s decision will stand for, whether the Justices can bring themselves to

say it or not, is the power of the Supreme Court to write a prophylactic, extra-

constitutional Constitution, binding on Congress and the states.” Another law that

could be deemed to have become “part of our national culture” in the sense Miranda has is difficult to imagine. Finding a better example of how U.S. law does what it

was intended to so well is also difficult, yet not without controversy.

Miranda, The Right against Self-Incrimination, and Impeached Testimony

Although the Constitution contains provisions to protect the accused from forced

self-incrimination, our justice system also entitles a criminal defendant to testify on

his or her own behalf. One noteworthy Fifth Amendment case—Harris v. New York (1971)—examined when, if ever, a suspect’s statements obtained in violation of

Miranda could be used at trial. In this case, Viven Harris was arrested after he made two separate heroin sales to an undercover police officer. Before being given the

Miranda warning, Harris stated that he had made both sales at the request of the officer, a statement that was not admitted into evidence at the trial. However, Harris later took the stand in his own defense and testified under oath that he did not

make the first sale and that the second sale was not of heroin but merely baking

powder in an attempt to defraud the buyer. Harris’s initial statement was then used

by the prosecution in an effort to impeach Harris’s credibility. The question

before the court was: Did the prosecution’s use of Harris’s postarrest statement

violate his Fifth Amendment rights guaranteed by the Miranda decision? The Supreme Court answered, “No,” noting that although Miranda barred the

prosecution from making its case with statements the accused made while in cus-

tody before having or effectively waiving counsel, it did not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is

barred for all purposes, provided of course that the trustworthiness of the evidence

satisfies legal standards. Chief Justice Warren Burger said, “Every criminal defen-

dant is privileged to testify in his own defense, or to refuse to do so. But that privi-

lege cannot be construed to include the right to commit perjury. . . . The shield

CASE IN BRIEF

Dickerson v. United States (2000)

ISSUE May Congress pass a law that effectively overturns the

Miranda decision?

RULING No. Congress cannot pass a law that supersedes a

Supreme Court decision that

interprets and applies the U.S.

Constitution.

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358 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We

hold, therefore, that petitioner’s credibility was appropriately impeached by use of

his previous conflicting statements.”

Miranda Issues Continue

Miranda issues are certainly not over. In Chavez v. Martinez (2003), the Supreme Court ruled that violating the Miranda decision does not subject law enforcement to civil liability if any statements so obtained are not used against the plaintiff in court.

The core Fifth Amendment privilege against self-incrimination does not come into

play until trial.

When Miranda Warnings Generally Are Not Required

Because the Fifth Amendment guarantees apply only to testimonial evidence, not

physical evidence, Miranda warnings are not required before collecting nontestimo- nial evidence such fingerprints, blood, urine, and handwriting samples, nor must

they precede the performance of field sobriety tests and the reciting of the alphabet.

The “routine booking question” exception allows obtaining biographical informa-

tion needed to complete an arrest report, and the emergency room exception allows

custodial questioning without warnings and waivers where information is needed

to neutralize an immediate threat to officer or public safety (Petrocelli, 2010).

Although the Miranda decision appears to provide a bright-line rule, case law has continued to guide when the warnings must be given and when they need not.

Several instances in which Miranda warnings are not normally required include (del Carmen, 2010, p. 372):

■ When the officer asks no questions ■ During general on-the-scene questioning ■ When the statement is volunteered ■ When asking a suspect routine identification questions ■ When questioning witnesses who are not suspects ■ In stop-and-frisk cases ■ When asking routine questions of drunken-driving suspects and videotaping

the proceedings ■ During lineups, showups, or photographic identifications ■ When the statement is made to a private person ■ When the suspect appears before a grand jury ■ When there is a threat to public safety ■ When an undercover officer poses as an inmate and asks questions

Brief questioning in stores, restaurants, parks, hospitals, and other public places is

generally considered noncustodial unless the subject is not free to leave. Here again,

as explained previously in the chapter, custody has different definitions when viewed in different contexts (i.e., under the Fourth Amendment versus Fifth Amendment-

Miranda). A person can be seized (i.e., detained) under the Fourth Amendment but not be in custody for Miranda. Under Miranda, the test is whether a person is not free to leave to the point that one would associate the situation with formal arrest. Thus

the question is, “If the person tried to leave, would the police stop that person?”

CASE IN BRIEF

Harris v. New York (1971)

ISSUE May a statement in violation of Miranda be used

to impeach the defendant’s

testimony?

RULING Yes. As long as the statement is voluntary, the state-

ment may be used to impeach

the credibility of the defendant.

The statement may not, however,

be considered evidence.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 359

Likewise, brief questioning, such as in stop-and-frisk cases and general ques-

tioning at a crime scene, is not a custodial situation. Law enforcement officers are

allowed to briefly detain witnesses at a crime scene for questioning without

Miranda warnings. Citizen witnesses directed by an officer not to leave a crime scene are unlikely to consider themselves in custody, and a court unlikely would so

consider them (Arnold v. United States, 1967). Another exception to interrogation in the absence of a Miranda warning is ques-

tioning done by a private security officer. Remember, the Constitution exists to

regulate the government’s authority. The regulations set forth by the Constitution apply to government agents, not to private individuals. In State v. Spencer (1987), the Minnesota Supreme Court relied on the Miranda Court that the Fifth Amend- ment applies only to government agents, and not private security personnel, no

matter how much they may look like public police.

This stipulation means private security personnel are not bound by constitu-

tional restraints; however, it does not mean they will not be held accountable for

wrongful acts, including crimes or civil wrongs. Case law continues to recognize

the clear differentiation between public police and private security.

The Public Safety Exception An important exception to the Miranda requirement involves public safety. The precedent case occurred in 1984 in New York v. Quarles, when the Supreme Court ruled on the public safety exception to the Miranda warning requirement.

In this case, a young woman stopped two police officers and told them she had

been raped. She described the rapist and said he had just entered a nearby super-

market, armed with a gun. The officers located the suspect, Benjamin Quarles, and

ordered him to stop. Quarles ran, and the officers momentarily lost sight of him.

When Quarles was apprehended and frisked, he was wear-

ing an empty shoulder holster. One officer asked Quarles

where the gun was, and Quarles nodded toward some car-

tons, saying, “The gun is over there.” The officer retrieved

the gun, arrested Quarles and read him his rights. Quarles

waived his rights to an attorney and answered questions.

At the trial, the court ruled, pursuant to Miranda, that the statement “the gun is over there” and the discovery of the

gun as a result were inadmissible. The U.S. Supreme Court,

in reviewing the case, ruled that if Miranda warnings had deterred the response to the officer’s question, the result would have been more than the loss of evidence.

As long as the gun was concealed in the store, it was a danger to the public safety:

“The need for answers to questions in a situation posing a threat to the public safety

outweighs the need for the prophylactic rule protecting the Fifth Amendment’s

privilege against self-incrimination.”

The Court ruled that in this case, the need to have the suspect talk took prece-

dence over the requirement to read the defendant his rights. As the Court noted, the

material factor in applying this public safety exception is whether a public threat

could be removed by the suspect’s statement. In this case, the officer asked the

question only to ensure his and the public safety. He then gave the Miranda warning before continuing questioning.

Private sec urity offi cers are not required to advise suspect s of their Miranda rights.

The public safet y exception allows police to ques tion suspect s without fi rst giving the Miranda warning if the information sought suffi ciently aff ect s the offi cers’ and the public’s safet y.

public safety exception allows officers to question

suspects without first giving the

Miranda warning if the

information sought sufficiently

affects the officers’ and the

public’s safety

CASE IN BRIEF

New York v. Quarles (1984)

ISSUE Are statements made in response to questioning by

police and while in custody

admissible in court if no Miranda

warning was given?

RULING Yes. If the situation involves an overriding concern

for public safety and the ques-

tions are reasonably prompted

because of a public safety con-

cern, Miranda need not be given

before asking questions.

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360 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

By Charlie Savage (The New York Times, April 20, 2013)

WASHINGTON—The Obama administration’s announce-

ment that it planned to question the Boston Marathon bombing suspect

for a period without first reading him the Miranda warning of his right

to remain silent and have a lawyer present has revived a constitutionally

charged debate over the handling of terrorism cases in the criminal justice

system.

The suspect, Dzhokhar A. Tsarnaev, 19, a naturalized American citizen,

remained hospitalized on Saturday for treatment of injuries sustained

when he was captured by the police on Friday night, and it was not clear

whether he had been questioned yet. But the administration’s effort to

stretch a gap in the Miranda rule for questioning about immediate threats

to public safety in this and other terrorism cases has alarmed advocates of

individual rights.

Anthony D. Romero, the executive director of the American Civil Liber-

ties Union, said it would be acceptable for the Federal Bureau of Investigation

to ask Mr. Tsarnaev about “imminent” threats, like whether other bombs are

hidden around Boston. But he said that for broader questioning, the F.B.I.

must not “cut corners.”

“The public safety exception to Miranda should be a narrow and limited

one, and it would be wholly inappropriate and unconstitutional to use it to

create the case against the suspect,” Mr. Romero said. “The public safety

exception would be meaningless if interrogations are given an open-ended

time horizon.”

“The public safety exception to Miranda should be a narrow and limited

one, and it would be wholly inappropriate and unconstitutional to use it to

create the case against the suspect,” Mr. Romero said. “The public safety

exception would be meaningless if interrogations are given an open-ended

time horizon.”

The Miranda warning comes from a 1966 case in which the Supreme

Court held that, to protect against involuntary self-incrimination, if prosecu-

tors want to use statements at a trial that a defendant made in custody, the

police must first have advised him of his rights. The court later created an

exception, allowing prosecutors to use statements made before any warning

in response to questions about immediate threats to public safety, like where

a gun is hidden.

The question applying those rules in terrorism cases arose after a Nigerian

named Umar Farouk Abdulmutallab tried to blow up a Detroit-bound

“Debate over Delaying of Miranda Warning”

IN THE NEWS

(Continued)

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 361

airliner on Dec. 25, 2009. After landing in Michigan, he was given painkillers

for burns and confessed to a nurse. He also spoke freely to F.B.I. agents for

50 minutes before going into surgery.

After he awoke, the F.B.I. read Mr. Abdulmutallab the Miranda warning,

and he stopped cooperating for several weeks.

Republicans portrayed the Obama administration’s handling of the case

in the criminal justice system as endangering national security, setting the

template for a recurring debate.

In late January 2010, Mr. Abdulmutallab’s family and lawyer persuaded

him to start talking again, and he provided a wealth of further information

about Al Qaeda’s branch in Yemen. Later, during pretrial hearings, his law-

yers asked a federal judge, Nancy G. Edmunds, to suppress the early

statements.

But Judge Edmunds ruled that the statement to the nurse had been volun-

tary and lucid despite the painkillers, and that the 50-minute questioning was

a “fully justified” use of the public safety exception. She declined to suppress

the statements, and Mr. Abdulmutallab pleaded guilty and was sentenced to

life in prison.

By then, the Justice Department had sent the F.B.I. a policy memo urging

agents, when questioning “operational terrorists,” to use a broad interpreta-

tion of the public safety exception. The memo asserted that giving the “mag-

nitude and complexity” of terrorism cases, a lengthier delay is permissible,

unlike ordinary criminal cases.

“Depending on the facts, such interrogation might include, for exam-

ple, questions about possible impending or coordinated terrorist attacks;

the location, nature and threat posed by weapons that might post an immi-

nent danger to the public; and the identities, locations and activities or

intentions of accomplices who may be plotting additional imminent

attacks,” it said.

Judge Edmunds’s ruling was seen by the administration as confirmation

that its new policy was constitutional—and that it was neither necessary nor

appropriate to put domestic cases in military hands.

Stephen Vladeck, an American University law professor, said the middle

ground sought by the administration has put both the civil libertarian and

national security conservative factions in a bind.

“This is the paradox of progressive national security law, which is how

do you at once advocate for the ability of the civilian courts without accept-

ing that some of that includes compromises that are problematic from a

civil liberties perspective?” he said. “The paradox is just as true for the

right, because they are ardent supporters of things like the public-safety

exception, but its existence actually undermines the case for military

commissions.”

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362 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Table 10.1 A Brief History of Cases Pertaining to the Law of Confessions

Brown v. Mississippi (1936): Confessions obtained by the government through physical coercion violate the Due

Process Clause of the Fourteenth Amendment and are inadmissible.

Rogers v. Richmond (1961): Coercion, either physical or psychological, violates the Due Process Clause, rendering any

resulting confessions inadmissible. “Ours is an accusatorial and not an inquisitorial system.”

Escobedo v. Illinois (1964): “When the process shifts from investigatory to accusatory—when its focus is on

the accused and its purpose is to elicit a confession . . . the accused must be permitted to consult with his

lawyer.” In determining whether a confession would be admissible, the Escobedo Court moved from a due

process analysis to a Sixth Amendment right to have a lawyer present and that the suspect must be advised

of this.

Miranda v. Arizona (1966): Unless the government has provided the warnings advising the suspect of his or her Fifth

Amendment rights, and that individual has provided a valid waiver, statements will not be admissible.

Harris v. New York (1971): The privilege to testify in one’s own defense cannot be construed to include the right

to commit perjury. The shield provided by Miranda cannot be perverted into a license to use perjury by way of

a defense.

Michigan v. Mosley (1975): A suspect who has invoked only his or her right to silence can be re-approached to seek a

waiver on the same or a different case as long as the right to remain silent is scrupulously honored.

North Carolina v. Butler (1979): An explicit statement of waiver is not invariably necessary to support a finding that the

defendant waived the right to counsel guaranteed by the Miranda case. The waiver can be inferred from the actions

and words of the person interrogated.

Rhode Island v. Innis (1980): An interrogation refers not only to express questioning but also to any words or actions by

the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely

to elicit an incriminating response from the suspect.

Edwards v. Arizona (1981): After a person has been given his or her Miranda warnings and then invokes his or her

right to remain silent and to have legal counsel, that person cannot be questioned further until a lawyer is made

available. (Modified by Shatzer [2010]; see later.)

Berkemer v. McCarty (1984): Roadside questioning of a motorist during a routine traffic stop is not a custodial

interrogation, so no Miranda warning is required; however, any custodial interrogations, including those resulting from

misdemeanor traffic offenses, do require Miranda.

New York v. Quarles (1984): This case created the “public safety exception” to the Miranda rule. When public

safety necessitates immediate action by police, failure to provide the warnings will not render a statement

inadmissible.

Oregon v. Elstad (1985): If police obtain a voluntary admission from a suspect without first advising the suspect of the

right to remain silent, a confession made after the Miranda warning is given will be admissible.

Arizona v. Roberson (1988): After a defendant invokes the right to counsel, police may not interrogate him or her, even

about a different crime.

Minnick v. Mississippi (1990): After a defendant requests a lawyer, the lawyer must be present at all subsequent

interrogations, even if the individual had consulted with counsel.

Dickerson v. United States (2000): Miranda stands rather than a return to the totality of the circumstances test.

Missouri v. Seibert (2004): The two-step questioning tactic of purposely withholding Miranda warnings until after a confession is obtained and then giving Miranda to re-ask the question is unconstitutional.

United States v. Patane (2004): A Miranda violation does not require the suppression of the “physical fruits” of the

statement, only the nonuse of the actual statement. Any evidence derived from the nonuseable statement can be used

in court.

Maryland v. Shatzer (2010): This case set a new “14-day break-in-custody” rule, granting police the authority to initiate

contact with a suspect who had previously asserted the right to counsel, without violating Edwards, if at least 14 days

had passed since the original invocation of that right.

Florida v. Powell (2010): No exact wording is required to satisfy Miranda.

Berghuis v. Thompkins (2010): A suspect who has received and understood his or her Miranda rights waives the right

to remain silent by making an uncoerced statement to police.

a d sw

o rt

h /C

e n g a g e L

e a rn

in g

Table 10.1 contains a brief history of key cases related to the law of confessions.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 363

Consequences of a Miranda Violation Unlike Fourth Amendment violations, in which fruit-

of-the-poisonous-tree applies, violations in the area of

Miranda do not restrict the use of evidence gleaned from a statement made in the absence of Miranda. For exam- ple, in United States v. Patane (2004), the Court ruled that a Miranda violation does not require the suppression of the “physical fruits” of the statement, only the nonuse

of the actual statement. Any evidence derived from the

nonuseable statement can be used in court.

Fifth Amendment Miranda Implications of Using Informants Many crimes are solved not because officers stumble on crimes in progress but because

they get information from a number of sources that help them learn who may have

been involved. An informant is any person who gives government agencies informa-

tion about criminal activity. Informants remain an important source of information.

The use of informants is interesting for several reasons. An issue is whether

incriminating statements made to a third party, who happens to be or becomes a

police informant, can be used against that person. In the case of Illinois v. Perkins (1990), the police put an undercover officer in jail with the suspect in hopes of elicit-

ing incriminating information from the suspect. The Supreme Court held that

undercover police agents do not have to administer Miranda warnings to incarcer- ated suspects before soliciting incriminating information from them. Miranda does not apply in this situation because there was no custodial interrogation (not a

police-dominated atmosphere) that would necessitate reading the warnings. The

Court further recognized a limitation to Miranda, noting that compulsion is “deter- mined from the perspective of the suspect.”

Entrapment Due process remains the underpinning of every component of a legal case. Uncon-

scionable or otherwise illegal behavior by the police brings about constitutional

issues. Entrapment falls into this category and may be used as a defense to a crimi-

nal charge.

Entrapment is discussed here because, although it can be included in any chap-

ter concerning people’s rights, the concept of government going too far is what the

study of entrapment is about. As with the issues raised in Miranda, government going “too far” is not good for either the government or those it serves.

Entrapment, like the Miranda rule, is a subject the public believes it is well versed on because of a heavy diet of television police shows. These dramas often

depict officers setting up radar in obviously inconspicuous locations and then being

assertively informed by the citizens tagged that the police method is a clear case of

entrapment. If only it were so easy.

Except in certain circumstances , such as wh en impeachment or public safet y is involved, a statement made under a Miranda violation cannot be used in court. However, the supp ress ion of that statement does not app ly to derivative evidence that fl ows fr om it, unlike the Fourth Amendment violations. In ot her words, the fr uit-of -the-poisonous-tree doct rine does not app ly to Miranda violations.

MYTH If an officer forgets to read you

Miranda, you cannot be charged

and are free.

REALITY This is false. If Miranda applies

and is not read to you, you can

still be arrested and charged and

the only thing affected by the non-

Miranda statement is that it can-

not be used as evidence against

you. It can, however, be used to

impeach (discredit) your testimony,

and the “fruits” of the statement

are generally admissible as evi-

dence. Any other evidence derived

from the non-Miranda statement

can also be used against you.

CASE IN BRIEF

Illinois v. Perkins (1990)

ISSUE Does an undercover officer need to give Miranda to

a suspect to whom he is asking

questions?

RULING No. If the suspect is unaware that he is talking to

an officer, neither the “police-

dominated atmosphere” nor the

compulsion to speak exists.

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364 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Entrapment is “an action by the police (or a government agent) persuading a

person to commit a crime that the person would not otherwise have committed.”

Another definition is provided in Sorrells v. United States (1932): “Entrapment is the conception and planning of an offense by an officer and his procurement of its com-

mission by one who would not have perpetrated it except for the trickery, persua-

sion or fraud of the officer.” At the same time, however, the Supreme Court noted,

“Society is at war with the criminal classes, and the courts have uniformly held that

in waging this warfare the forces of prevention and detection may use traps, decoys

and deception to obtain evidence of the commission of crime. Nonetheless, when

police officers encourage others to engage in criminal activity, this should not be

viewed lightly. Such encouragement might, in fact, cause normally law-abiding citi-

zens to commit crime.”

Even when the defendant admits to committing the crime, he or she may argue

that the law enforcement agents themselves brought the crime about. As noted by

Justice Frankfurter in Sherman v. United States (1958), “The power of government is abused and directed to an end for which it was not constituted when employed to

promote rather than detect crime and bring about the downfall of those who, left to

themselves, might well have obeyed the law. Human nature is weak enough and

sufficiently beset by temptations without government adding to them and generat-

ing crime.”

If a private person not connected with law enforcement induces someone to

commit a crime, no defense of entrapment can be used. The more involved a third

party is with the police, as an informant or otherwise, however, the greater the

argument that the individual is an agent of the police, which brings in constitutional consideration.

Whether entrapment exists may be determined by subject analysis—asking: “Was the suspect predisposed to commit the crime, or was he an unwary innocent party?”

(Hampton v. United States, 1976). This is the viewpoint taken by the Supreme Court. Entrapment may also be determined by objective analysis—asking: “Was an innocent person induced by the police to commit a crime they never would have otherwise?”

(Sherman v. United States, 1958). This type of analysis has been adopted by some states. Lopez v. United States (1963) involved an IRS agent investigating tax irregulari-

ties at German Lopez’s restaurant when Lopez made an unsolicited offer to pay a

cash bribe for the agent’s approval of phony records. The agent pretended to play

along, reported the attempted bribe to his superiors, and wore a wire to his next

meeting with Lopez, obtaining evidence regarding the bribe. Lopez claimed entrap-

ment, but the Supreme Court disagreed saying that the agent had merely afforded

an opportunity for a continuing course of criminal conduct by a willing criminal,

without overbearing inducements (Rutledge, 2008).

The leading case in entrapment is Jacobson v. United States (1992), in which the defendant ordered child pornography, which was not illegal at that time. However,

a law was subsequently passed making it illegal, and when a postal inspector found

Keith Jacobson’s name on a mailing list, he was sent a letter from a fictitious group

concocted by law enforcement. In his application for membership, Jacobson stated

he was opposed to pedophilia but enjoyed sexual material showing preteen sexual

photos. For more than two years, a group of government agencies contacted him

through different fictitious organizations, and one postal inspector pretended to be

entrapment the act of government officials or agents

(usually police) inducing a person

to commit a crime that the

person would not have otherwise

committed

MYTH If you ask, an officer needs to

tell you that he or she is a police

officer, otherwise it is entrapment.

REALITY This is false. An officer does not

need to disclose whether he or

she is an officer.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 365

a “pen pal” and began communicating with Jacobson. Eventually, Jacobson placed

an order through one of these groups, which was not filled. Still later he ordered a

magazine from yet another fake catalogue they sent him, and when it was delivered

he was arrested.

The Supreme Court held that Jacobson was entrapped because, they argued,

the government did so much as to “implant” in his mind the desire to commit the

crime: “Where the Government has induced an individual to break the law and

the defense of entrapment is an issue, the prosecution must prove beyond a reason-

able doubt that the defendant was predisposed to commit the criminal act prior to

first being approached by Government agents.”

As stated by the Court in Sorrells, “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a

criminal act, then induce commission of the crime so that the Government may

prosecute.” No entrapment was found when government agents supplied one of

the necessary ingredients for manufacturing a prohibited drug (United States v. Russell, 1973) or when they supplied heroin to a suspect predisposed to selling heroin (Hampton v. United States, 1976).

Other Rights Guaranteed by the Fifth Amendment The Fifth Amendment is unique in that it covers such an array of

legal areas that apply to both criminal and civil law. This broad

range reflects the framers of the Constitution’s awareness of the

power government has over all aspects of people’s lives and how

that power needs to be regulated. The Fifth Amendment contains

a number of seemingly unrelated elements. Some pertain more to

criminal law and others to civil law. Some apply only to the fed-

eral government, whereas others apply to the states as well.

Although this text addresses law as it pertains to criminal justice,

and to fully appreciate this amendment, it needs to be considered

in total. The right of a person to not be a witness against himself

or herself is the component this amendment is best known for, but

other important rights are also delineated.

The Right to a Grand Jury

The Fifth Amendment states, “No person shall be held to answer for a capital or

otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces, or in the Militia, when in actual

service in time of War or public danger.” A grand jury is a group of citizens who

determine whether sufficient evidence exists to send an accused to trial. Today, the

primary job of a grand jury is to determine whether sufficient evidence exists to

hand down an indictment (send an individual accused of a crime on to trial to be

prosecuted).

Like many other aspects of U.S. law, the concept of a grand jury has a rich his-

tory, deriving its name from the French meaning “large.” Over centuries of

grand jury a group of citizens who determine whether sufficient

evidence exists to send an

accused to trial

indictment a formal accusation of a defendant,

usually by a grand jury, that

sends the defendant on to trial

for prosecution

CASE IN BRIEF

Jacobson v. United States (1992)

ISSUE Is it entrapment for the government to contact the

defendant multiple times during

26 months, disguised as fictitious

organizations selling child por-

nography, to get the defendant to

purchase some?

RULING Yes. The acts of the government were such that they

designed and implanted the

criminal act in the defendant’s

mind to the point he was not

independently predisposed to

commit the crime.

In addition to the right to not incriminate ones elf, the Fift h Amendment also guarantees :

■ The right to a grand jury indict ment.

■ The prohibition against double jeopardy.

■ The right to rec eive just compensation wh en government takes private property.

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366 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

evolution, dating back to medieval England, grand juries served two purposes:

(1) to investigate a variety of crimes, including official misconduct, as an arm of the

king’s rule, and (2) to ensure that innocent citizens were not wrongfully prosecuted.

Both purposes were understandably important to those drafting the Constitution

because of their attitude toward the country they had left.

A trial jury (sometimes referred to as a petit jury) differs from a grand jury

in a number of ways. A trial jury most often comprises 12 jurors, whereas grand

juries have 16 to 23 jurors. A trial jury needs a unanimous vote to convict,

whereas a grand jury needs only 12 votes to indict. A jury composed of the

defendant’s “peers” is not required for a grand jury, and a grand jury may inves-

tigate misconduct, whereas a trial jury can address only what is brought before

it. The jurors in a trial court hear only one case, whereas those on a grand jury

hear numerous cases during their assignment. The outcome of a grand jury is to

indict or not, whereas a trial jury convicts or acquits. Another major difference

is a grand jury is not open to the public, and the prosecutor appears to maintain

control during the proceedings. In fact, the accused has no right to counsel or to

present evidence. Rather than determining guilt or innocence, a grand jury

determines only whether the government has enough evidence, whether it will

be admissible or not at trial, to justify the matter proceeding to trial. One reason

for the secrecy is that if the grand jury returns a “no bill of indictment,” the case

will not proceed and no one will know the person was involved, at least in

theory. In grand jury proceedings, although the rights of a suspect are minimal,

the government, in effect, is actually on trial, or at least must convince the jury

it has a case. Table 10.2 summarizes the differences between a grand jury and a

trial jury.

Although the Supreme Court has not held the Grand Jury Clause of the Fifth

Amendment to be sufficiently essential to the U.S. system of justice to incorporate

it under the Fourteenth Amendment Due Process Clause, most states have chosen

to use the grand jury process themselves. Depending on the state, prosecutors may

be required, or may elect, to have a grand jury evaluate their case. In the states that

Table 10.2 Grand Juries and Trial (Petit) Juries Compared

Grand Jury Trial Jury (also known as Petit Jury)

1. Usually composed of 16 to 23 members, with 12 votes

required for an indictment

1. Usually consists of 12 members, with a unanimous

vote required for conviction

2. Choice usually determined by state law, with “jury of

peers” not a consideration

2. Usually chosen from voter registration list and driver’s

license rolls, with “jury of peers” a consideration

3. Does not determine guilt or innocence; function is to

return indictment or conduct investigations of reported

criminality

3 Decides guilt or innocence and, in some states,

determines punishment

4. Retains the same membership for one month, six

months or one year; may return several indictments

during that period

4. A different jury for every case

5. Hands down indictments based on probable cause 5. Convicts on the basis of evidence of guilt beyond a

reasonable doubt

6. May initiate investigations of misconduct 6. Cannot initiate investigations of misconduct

www.cengage.com/permissions.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 367

do not require a grand jury, the prosecutor must convince a judge that sufficient

evidence exists to justify a trial. In the other states, a grand jury must indict the

defendant for a trial to proceed.

Grand juries have immense power. Nevertheless, debate on the grand jury sys-

tem’s viability continues for several reasons. Only the prosecutor is present during

the proceedings, no defendants are permitted to have their lawyers present, every-

thing occurring during the process is kept secret and evidence that may be inadmis-

sible at trial is permitted. Despite these factors, grand juries are beneficial to the

judicial process. The historical roots of the grand jury are noble and are still serving

to deflect arbitrary government prosecution. A grand jury provides a step by which,

at least in spirit, the innocent are protected. This process also attempts to avoid

political or popular pressure on the prosecution in particularly notorious or other-

wise sensitive cases.

Critics assert, however, that the system is too one-sided in favor of the pros-

ecution, and the entire process is contrary to the openness the rest of the crimi-

nal justice system demands. Either way, grand juries provide the citizenry with

an opportunity for involvement, even in cases that proceed no further, thus

removing complete authority over criminal cases from the government,

including the prosecution. Notably, England abandoned the grand jury process

in 1933.

Double Jeopardy

The Double Jeopardy Clause has been incorporated into the Fourteenth Amend-

ment’s Due Process Clause and, thus, applies to the states. Its purpose was

explained by Supreme Court Justice Hugo Black in Green v. United States (1957): “The underlying idea, one that is deeply ingrained in at least the Anglo-

American system of jurisprudence, is that the State with all its resources and

power should not be allowed to make repeated attempts to convict an individ-

ual for an alleged offense, thereby subjecting him to embarrassment, expense

and ordeal and compelling him to live in a continuing state of anxiety and

insecurity, as well as enhancing the possibility that even though innocent he

may be found guilty.”

The prohibition against double jeopardy prevents the government from try-

ing someone twice in the same jurisdiction for the same offense. Double jeopardy

is said to attach and, thus, prohibit the following: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after con-

viction and more than one punishment for the same offense (North Carolina v. Pearce, 1969). In addition, an illegal act may itself consist of several different criminal acts, each of which could be prosecuted; however, double jeopardy

would occur if greater or lesser included offenses were later tried after the

initial trial.

In a continuing examination of the prohibition against double jeopardy, the

Supreme Court in Sattazahn v. Pennsylvania (2003) held that there is no double jeop- ardy when one is sentenced to death at a retrial after receiving a life sentence at the

original trial when the jury deadlocked during the sentencing phase. United States v. Lara (2004) held that Billy Jo Lara, a American Indian who pleaded guilty to assault- ing a police officer in the Spirit Tribe Tribal Court, could be tried again in federal

double jeopardy a prohibition against the

government from trying someone

twice for the same offense

The right to a grand jury is the only unincorporated clause of the Fift h Amendment (Hurtado v. California, 1884).

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368 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

court because the courts represented two different jurisdictions. Seling v. Young (2001) held that an act considered civil that results in confinement, in this case the

civil confinement of a sex offender, does not create double jeopardy to prevent a

subsequent criminal trial.

A system of fairness cannot permit inexhaustible resources to be used to con-

tinue retrying a defendant. However, this amendment has important nuances.

What is not double jeopardy? A defendant may be tried again when a jury is unable to reach a verdict resulting in a mistrial or when a mistrial is declared for other

reasons. In 2012, the Court decided Blueford v. Arkansas, in which it ruled that the report of a foreperson is not a final decision regarding acquittal and, therefore, the

defendant can be retried in the situation in which a mistrial is declared as a result

of a hung jury.

A case may be appealed to a higher court by either side, including the prosecu-

tion. If an appeals court grants a defendant a new trial, it is not considered double

jeopardy. If an offense is both a state and a federal offense, the offenses are consid- ered separate and may be tried independently of each other.

Just Compensation

The Fifth Amendment also requires just compensation, or the payment of fair

market value, when government takes property. Sometimes the government needs

to take property for the public good. This circumstance would include acts of con-

demnation by which government acquires property to build roadways, bridges, or

other public improvements. A “taking” may also occur when government restricts

how property may be used, thus limiting its uses. Whether property is actually

taken by the government to be used for something altogether different or regulated

to the point that owners are no longer able to use it as they wish, fair compensation

is required from the government.

On an historical note, the Just Compensation Clause was the first component of

the Bill of Rights to be incorporated to apply to the states under the Fourteenth

Amendment Due Process Clause (Chicago, Burlington & Quincy Railroad Co. v. Chicago, 1897). Subsequent cases have continued to focus on what is considered a taking, what is considered public use, and what is just compensation.

Fifth Amendment and Corrections The Fifth Amendment does not arise often in prisoners’ rights cases, but it may

apply to inmates being questioned about offenses separate from those they are serv-

ing time for (recall Illinois v. Perkins, 1990, and Howes v. Fields, 2012) or to those inmates involved in internal disciplinary proceedings.

Another issue challenged under the Fifth Amendment is compensation for

prison labor. Inmates have claimed they are being deprived of property (just

wages) without due process. However, the courts have consistently rejected just

compensation arguments on grounds of the Fifth, Thirteenth, and Fourteenth

Amendments.

A third area involving the Fifth Amendment focuses on disciplinary actions. In

Baxter v. Palmigiano (1976), the Supreme Court ruled, “Prison disciplinary hearings are not criminal proceedings; but if inmates are compelled in those proceedings to

just compensation the requirement that property owners

be paid fair market value by the

government when government

takes their property

MYTH A person can never be tried twice

for the same offense because of

“double jeopardy.”

REALITY Not true. The Double Jeopardy

Clause only prohibits the govern-

ment from trying a defendant for

the same offense more than once

under particular facts. Examples

where double jeopardy does

not exist are if the jury acquits

the defendant and a mistrial is

declared because of prosecutor

misconduct, or if the charge is

dismissed after the jury is seated.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 369

furnish testimonial evidence that might incriminate them in later criminal pro-

ceedings, they must be offered ‘whatever immunity is required to supplement the

privilege’ and may not be required ‘to waive such immunity.’ ”

A fourth Fifth Amendment issue involves the Double Jeopardy Clause. Inmates

who commit disciplinary infractions may appear before a disciplinary board and be

punished and then find themselves facing criminal prosecution for the same

offense. The courts have consistently ruled that this circumstance does not consti- tute double jeopardy.

Before leaving the discussion of the Fifth Amendment, consider another contro-

versial area broadening the government’s powers to obtain information: the USA

PATRIOT Act.

USA PATRIOT Act An immediate result of the September 11, 2001 (9/11), terrorist attacks on the

United States was the unity that occurred among Americans, including politi-

cians, which resulted in swift approval of the Uniting and Strengthening America

by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism

Act, also known at the USA PATRIOT Act. On October 26, 2001, 45 days after

the horrific attacks, President George W. Bush signed the act into law. Because it

was hastily routed through the process, arguably out of necessity, Congress

determined that much of it would expire at the end of 2005, so it could be

re-evaluated.

This comprehensive law spans much of the specific topics

this text addresses. And although the USA PATRIOT Act could

have easily been discussed in the chapter on the First Amend-

ment for its connection to freedom of speech issues, or fit in the

section dealing with the Fourth Amendment because of the

numerous privacy and warrant concerns it presents, we have

opted to place it in this chapter based on the pervasive and

overarching implications this act has had on due process of law,

a constitutional guarantee delineated within the Fifth Amendment. Although

coming at a time when the country was stunned by the terrorist attacks and

joined together in responding, this law has generated controversy because of

what some say has eliminated the checks and balances that allowed courts to

ensure these powers were not abused.

The act gives federal officials greater authority to track and intercept communi-

cations for law enforcement and foreign intelligence gathering. It gives the Secre-

tary of the Treasury regulatory powers to combat corruption of U.S. financial

institutions for foreign money laundering. It further closes our borders to foreign

terrorists and allows us to detain and remove terrorists already in our country. It

creates new crimes, new penalties, and new procedural efficiencies for use against

domestic and international terrorists. The USA PATRIOT Act significantly improves

the nation’s counterterrorism efforts by:

■ Allowing investigators to use the tools already available to investigate orga-

nized crime and drug trafficking.

USA PATRIOT Act legislation that significantly improves the

nation’s counterterrorism efforts

The USA PATRIOT Act strengthened the ability of the Justice Department and the FBI to monitor suspect ed terrorist s or their ass ociates .

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370 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

■ Facilitating information sharing and cooperation among government agencies,

so they can better “connect the dots.” ■ Updating the law to reflect new technologies and new threats. ■ Increasing the penalties for those who commit or support terrorist crimes.

Elements of the USA PATRIOT Act

The U.S. Department of Justice summarizes on its website the elements of this law

as follows.

Allowing Use of Already Available Tools “Many of the tools the Act pro-

vides to law enforcement to fight terrorism have been used for decades to fight

organized crime and drug dealers, and have been reviewed and approved by the

courts.” As Sen. Joe Biden (D-DE) explained during the floor debate about the act,

“The FBI could get a wiretap to investigate the Mafia, but they could not get one to

investigate terrorists. To put it bluntly, that was crazy! What’s good for the mob

should be good for terrorists” (Congressional Record, 10/25/01) (U.S. Department

of Justice). Specifically, the act

■ Allows law enforcement to use surveillance against the full range of

terrorism-related crimes, including chemical-weapons offenses, the use of

weapons of mass destruction, killing Americans abroad and terrorism

financing. ■ Allows federal agents to follow sophisticated terrorists trained to evade

detection by using “roving wiretaps” that apply to a particular suspect rather

than to a particular phone or communications device. ■ Allows law enforcement to conduct investigations without tipping off

terrorists by use of delayed notification search warrants. Notice is always

provided, but a reasonable delay gives law enforcement time to identify the

criminal’s associates, eliminate immediate threats to communities and

coordinate the arrests of multiple individuals without tipping them off

beforehand. ■ Allows federal agents to ask a court for an order to obtain business records in

national security terrorism cases. The government can now ask the Foreign

Intelligence Surveillance Court to order production of the same type of records

available through grand jury subpoenas if the government demonstrates the

records concerned are sought for an authorized investigation to obtain foreign

intelligence information not concerning a U.S. citizen or to protect against

international terrorism or clandestine intelligence activities (U.S. Department

of Justice).

Facilitating Information Sharing and Cooperation among Government

Agencies “The Act removed the major legal barriers that prevented the law

enforcement, intelligence and national defense communities from talking and coor-

dinating their work to protect the American people and our nation’s security. . . .

Now police officers, FBI agents, federal prosecutors and intelligence officials now

can protect our communities by ‘connecting the dots’ to uncover terrorist plots

before they are completed.” As Sen. John Edwards (D-NC) said about the PATRIOT

Act, “We simply cannot prevail in the battle against terrorism if the right hand of

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 371

our government has no idea what the left hand is doing” (Press release, 10/26/01,

U.S. Department of Justice).

Prosecutors can now share evidence obtained through grand juries with intel-

ligence officials—and intelligence information can now be shared more easily with

federal prosecutors. Such sharing of information leads to concrete results. For

example, a federal grand jury recently indicted an individual in Florida, Sami

al-Arian, for allegedly being the U.S. leader of the Palestinian Islamic Jihad, one of

the world’s most violent terrorist outfits. Palestinian Islamic Jihad is responsible for

murdering more than 100 innocent people.

Updating the Law to Reflect New Technologies and New Threats The

United States no longer has to fight a digital-age battle with antique weapons—

legal authorities left over from the era of rotary telephones. “When investigating

the murder of Wall Street Journal reporter Daniel Pearl, for example, law enforce- ment used one of the act’s new authorities to use high-tech means to identify and

locate some of the killers” (U.S. Department of Justice).

The act “allows law enforcement officials to obtain a search warrant anywhere a terrorist-related activity occurred. . . . terrorism investigations often span a number

of districts, and officers therefore had to obtain multiple warrants in multiple juris-

dictions, creating unnecessary delays. The Act provides that warrants can be

obtained in any district in which terrorism-related activities occurred, regardless of

where they will be executed” (U.S. Department of Justice).

Increasing Penalties for Those Who Commit or Support Terrorist

Crimes “The Act created a new offense that prohibits knowingly harboring per-

sons who have committed or are about to commit a variety of terrorist offenses,

such as destruction of aircraft; use of nuclear, chemical or biological weapons; use

of weapons of mass destruction; bombing of government property; sabotage of

nuclear facilities; and aircraft piracy” (U.S. Department of Justice).

The act enhances the inadequate maximum penalties for various crimes likely

to be committed by terrorists including arson, destruction of energy facilities, mate-

rial support to terrorists and terrorist organizations, and destruction of national-

defense materials. It also enhances “a number of conspiracy penalties, including for

arson, killings in federal facilities, attacking communications systems, material

support to terrorists, sabotage of nuclear facilities and interference with flight crew

members” (U.S. Department of Justice). In addition, the act punishes terrorist

attacks on mass transit systems and punishes bioterrorists. Finally, it eliminates the

statute of limitations for certain terrorism crimes and lengthens them for other

such crimes.

The Renewal of the USA PATRIOT Act

Renewal of this legislation has not occurred easily, with debate focusing on national

security needs and whether increased government powers are still needed after an

immediate threat seems to have passed. Questions have also been raised as to

whether the PATRIOT Act needed to be renewed in its entirety.

After an extension from its expiration at the end of 2005, President Bush signed

into law the USA PATRIOT Improvement and Reauthorization Act on March 9,

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372 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

2006, stating, “The law allows our intelligence and law enforcement officials to

continue to share information. It allows them to continue to use tools against terror-

ists that they used against drug dealers and other criminals. It will improve our

nation’s security while we safeguard the civil liberties of our people. The legislation

strengthens the Justice Department so it can better detect and disrupt terrorist

threats. And the bill gives law enforcement new tools to combat threats to our citi-

zens from international terrorists to local drug dealers.” (The reauthorized

PATRIOT Act also includes new tools to combat the manufacture and distribution

of methamphetamine.)

Other than two provisions concerning roving wiretaps and “lone-wolf” situa-

tions, the revised version of the PATRIOT Act is permanent; it will not expire and

will change only if done so through legislation. On May 26, 2011, President Barack

Obama extended the act for four more years, to expire June 1, 2015, and amended

USA PATRIOT Improvement and Reauthorization Act of 2005 with provisions

concerning roving electronic surveillance orders and requests for the production

of business records and other tangible things. The extension also amends the

Intelligence Reform and Terrorism Prevention Act of 2004 with a provision revis-

ing the definition of an “agent of a foreign power” to include any non-U.S. person

who engages in international terrorism or preparatory activities (the lone-wolf

provision).

The USA PATRIOT Act and a Changing Society

As noted throughout this text, U.S. constitutional law represents the essence of a

living law. Although the reasons underlying passage of the USA PATRIOT Act are

most unfortunate, the act provides an ideal example of:

■ How U.S. law never remains static. ■ The legal system’s ability to alter its course in response to change. ■ An ability to enact change when many criticize how impossible change is to

legislate. ■ The ability of legislators to come together in a primarily nonpartisan manner

when the country requires. ■ How, rather than having legislation continue beyond the time it is needed, it

must be renewed, necessitating debate and review.

Polls show that most Americans are willing to sacrifice some privacy if it makes

them more secure from terrorism. Others contend the risk of an overly intrusive

government is no longer as justified as it may have been immediately after 9/11.

The debate continues.

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 373

Discussion Questions

Summary

1. Why should government be limited on how and when it asks questions?

2. What two criteria must be met for the Miranda warning to be necessary?

3. Does the Miranda decision impede police work? 4. Would a different result occur, given exactly the

same circumstances of an interrogation, for what a private security officer could do as opposed to what a city police officer must do?

5. Why shouldn’t a stop require the Miranda warning? 6. Referencing Justice Oliver Wendell Holmes’s

proposition that it is better that some criminals escape rather than have the government involved in playing an ignoble part, what logic can you see

in releasing a suspect who has confessed to a crime under circumstances that prohibit use of that admission, when the police know that person committed the crime? Where is the fairness here?

7. What do you think motivates informants, and should their information be considered reliable?

8. Why would it be wise for an officer to read the Miranda rights from a card?

9. Why might trickery, innuendo, or even falsehoods asserted by police during questioning not be Fifth Amendment violations?

10. Considering the USA PATRIOT Act, do you think Americans could ever sacrifice too many rights in exchange for national security?

The Fifth Amendment protects against self-incrimi-

nation and guarantees citizens due process of law by

limiting the federal government’s actions: “No per-

son shall . . . be compelled in any criminal case to be

a witness against himself” and “No person shall . . .

be deprived of life, liberty or property, without due

process of law.” The Supreme Court has extended the

elements of due process through case law beyond the

words of the Constitution but in keeping with its

spirit. Voluntariness of a confession is determined by

(1) the police conduct involved and (2) conduct suf-

ficient to overcome the will of the suspect given the

characteristics of the accused.

Miranda remains the precedent case referred to by courts analyzing confession issues. The four warn-

ings included in Miranda are (1) you have the consti- tutional right to remain silent, (2) anything you say

can and will be used against you in court, (3) you

have the right to talk to a lawyer now and have him

present now or at any time during questioning, and

(4) if you cannot afford a lawyer, one will be appointed

for you without cost. The Miranda warning must be given to a suspect interrogated in police custody, that

is, when the suspect is not free to leave. If after hear-

ing a police officer read the Miranda warning, sus- pects remain silent, this silence alone is not a waiver.

To waive their rights, suspects must show (1) that

they understand their rights and (2) conduct

indicative of a waiver, such as agreeing to voluntarily

answer questions without a lawyer present.

Private security officers are not required to advise

suspects of their Miranda rights. The public safety exception allows police officers to question suspects

without first giving the Miranda warning if the infor- mation sought sufficiently affects the officers’ and

the public’s safety. Except in certain circumstances,

such as when impeachment or public safety is

involved, a statement made under a Miranda viola- tion cannot be used in court. However, the suppres-

sion of that statement does not apply to derivative evidence that flows from it, unlike the Fourth

Amendment violations. In other words, the fruit-of-

the-poisonous-tree doctrine does not apply to

Miranda violations. In addition to the right not to incriminate oneself,

the Fifth Amendment also guarantees the right to a

grand jury indictment, the prohibition against dou-

ble jeopardy, and the right to receive just compensa-

tion when government takes private property. The

right to a grand jury is the only unincorporated

clause of the Fifth Amendment (Hurtado v. California, 1884).

The USA PATRIOT Act strengthened the ability

of the Justice Department and the FBI to monitor

suspected terrorists or their associates and signifi-

cantly improves the nation’s counterterrorism efforts.

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374 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

References del Carmen, Rolando V. Criminal Procedure: Law and

Practice, 8th ed. Belmont, CA: Wadsworth/ Thomson Learning, 2010.

Ferdico, John N.; Fradella, Henry F.; and Totten, Christopher D. Criminal Procedure for the Criminal Justice Professional, 10th ed. Belmont, CA: Wadsworth/Cengage Learning, 2009.

Kruger, Karen J. “When Public Duty and Individual Rights Collide in Use-of-Force Cases.” The Police Chief, February 2009, pp. 12–13.

Means, Randy, and McDonald, Pam. “Custody and Interrogation Myths,” Law and Order, April 2010a, pp.16–18.

Means, Randy, and McDonald, Pam. “Miranda Revisited.” Law and Order, August 2010b, pp. 18–19.

Means, Randy, and McDonald, Pam. “Myths: Attachment and Assertion of Interrogation Rights.” Law and Order, March 2010c, pp. 16–18.

O’Connor, Thomas P., and Maher, Timothy M. “False Confessions.” The Police Chief, October 2009, pp. 68–76.

Overholt, Roger D.; Tucker, Melvin L.; and Wisecarver, Chris. “Procedural Due Process and the Determination of Just Cause.” The Police Chief, January 2008, pp. 60–62.

Petrocelli, Joseph. “Miranda Warning Issues.” Police, May 2010, pp. 18–21.

Rutledge, Devallis. “Entrapment.” Police, October 2008, pp. 80–83.

Rutledge, Devallis. “Non-Custodial Stationhouse Interrogations.” Police, January 2009a, pp. 62–65.

Rutledge, Devallis. “Premature Miranda Warnings.” Police, December 2009b, pp. 60–63.

Rutledge, Devallis. “Miranda Invocation and Waiver.” Police, 2010a, pp. 72–75.

Rutledge, Devallis. “Miranda Wording.” Police, April 2010b, pp. 60–61.

Rutledge, Devallis. “Rewriting the Edwards Rule.” Police, May 2010c, pp. 66–68.

Sturman, Shane G. “Interrogations: Times Are Changing—Corley v. United States.” LawOfficer.com, April 15, 2009. Retrieved June 17, 2013, from www .lawofficer.com/article/needs-tags-columns/ interrogations-times-are-chang.

U.S. Department of Justice. “The USA PATRIOT Act: Preserving Life and Liberty.” Retrieved June 17, 2013, from www.justice.gov/archive/ll/highlights .htm.

Cases Cited Anderson v. State, 253 A.2d 387 (Md. App. 1969) Arizona v. Fulminante, 499 U.S. 279 (1991) Arizona v. Roberson, 486 U.S. 675 (1988) Arnold v. United States, 382 F.2d 4 (9th Cir. 1967) Baxter v. Palmigiano, 425 U.S. 308 (1976) Beckwith v. United States, 425 U.S. 341 (1976) Beecher v. Alabama, 389 U.S. 35 (1967) Berghuis v. Thompkins, 560 U.S. ___ (2010) Berkemer v. McCarty, 468 U.S. 420 (1984) Blueford v. Arkansas, 566 U.S. ____ (2012) Brown v. Mississippi, 297 U.S. 278 (1936) Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000) California v. Beheler, 463 U.S. 1121 (1983) California v. Prysock, 451 U.S. 1301 (1981) Chavez v. Martinez, 538 U.S. 760 (2003) Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166

U.S. 226 (1897) Colorado v. Connelly, 479 U.S. 157 (1986) Colorado v. Spring, 479 U.S. 564 (1987) Connecticut v. Barrett, 479 U.S. 523 (1987) Corley v. United States, 556 U.S. 303 (2009) Culombe v. Connecticut, 367 U.S. 568 (1961) Davis v. United States, 512 U.S. 452 (1994) Dickerson v. United States, 530 U.S. 428 (2000)

Dormire v. Wilkinson, 249 F.3d. 801, 805 (8th. Cir. 2001) Duckworth v. Eagan, 492 U.S. 195 (1989) Edwards v. Arizona, 451 U.S. 477 (1981) Escobedo v. Illinois, 378 U.S. 478 (1964) Fikes v. Alabama, 352 U.S. 191 (1957) Florida v. Powell, 559 U.S. 50 (2010) Frazier v. Cupp, 394 U.S. 731 (1969) Gardner v. Broderick, 392 U.S. 273 (1968) Garrity v. New Jersey, 385 U.S. 493 (1967) Green v. United States, 355 U.S. 184 (1957) Greenwold v. Wisconsin, 390 U.S. 519 (1968) Hampton v. United States, 425 U.S. 484 (1976) Harris v. New York, 401 U.S. 222 (1971) Haynes v. Washington, 373 U.S. 503 (1963) Hiibel v. Nevada, 542 U.S. 177 (2004) Howes v. Fields, 132 S.Ct. 1181 (2012) Hurtado v. California, 110 U.S. 516 (1884) Illinois v. Perkins, 496 U.S. 292 (1990) In re Gault, 387 U.S. 1 (1967) Jacobson v. United States, 503 U.S. 540 (1992) Lopez v. United States, 373 U.S. 427 (1963) Mallory v. United States, 354 U.S. 449 (1957) Malloy v. Hogan, 378 U.S. 1 (1964) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

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Chapter 10 The Fifth Amendment: Obtaining Information Legally 375

Maryland v. Shatzer, 559 U.S. 98 (2010) Massiah v. United States, 377 U.S. 201 (1964) McNabb v. United States, 318 U.S. 332 (1943) Michigan v. Mosley, 423 U.S. 96 (1975) Mincey v. Arizona, 437 U.S. 385 (1978) Minnick v. Mississippi, 498 U.S. 146 (1990) Miranda v. Arizona, 384 U.S. 436 (1966) Missouri v. Seibert, 542 U.S. 600 (2004) New York v. Quarles, 467 U.S. 649 (1984) North Carolina v. Butler, 441 U.S. 369 (1979) North Carolina v. Pearce, 395 U.S. 711 (1969) Oregon v. Elstad, 470 U.S. 298 (1985) Oregon v. Mathiason, 429 U.S. 492 (1977) Patterson v. Illinois, 487 U.S. 285 (1988) Pennsylvania v. Muniz, 496 U.S. 582 (1990) People v. McNeil, 711 N.Y.S. 2d 518 (N.Y. App. Div. 2000) People v. Shivers, 21 N.Y.2d 188 (N.Y. Court of Appeals

1967) Rhode Island v. Innis, 446 U.S. 291 (1980) Rochin v. California, 342 U.S. 165 (1952) Rogers v. Richmond, 365 U.S. 534 (1961) Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) Seling v. Young, 531 U.S. 250 (2001)

Sherman v. United States, 356 U.S. 369 (1958) Sorrells v. United States, 287 U.S. 435 (1932) State v. Robinson, 427 N.W.2d 217 (Minn.1988) State v. Schumacher, 37 P.3d 6, 13 (Idaho Ct. App. 2001) State v. Spencer, 414 N.W.2d 528 (1987) Tague v. Louisiana, 444 U.S. 469 (1980) United States v. Ballard, 586 F.2d 1060 (5th Cir. 1978) United States v. Banks, 540 U.S. 31 (2003) United States v. Bell, 367 F.3d 452, 461 (5th Cir. 2004) United States v. Guarno, 819 F.2d 28 (2d Cir. 1987) United States v. Jonas, 786 F.2d 1019 (11th Cir. 1986) United States v. Koch, 552 F.2d 1216 (7th Cir. 1977) United States v. Lara, 541 U.S. 193 (2004) United States v. McClinton, 982 F.2d 278, 283

(8th Cir. 1992) United States v. Muhlenbruch, 634 F. 3d 987

(Court of Appeals, 8th Circuit 2011) United States v. Patane, 542 U.S. 630 (2004) United States v. Russell, 411 U.S. 423 (1973) United States v. Wright, 991 F.2d 1182 (4th Cir. 1993) Watts v. Indiana, 338 U.S. 49 (1949) Welch v. Butler, 835 F.2d 92 (5th Cir. 1988) Yates v. United States, 384 F.2d 586 (5th Cir. 1967)

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376

CHAPTER 11

In all criminal prosec utions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and dist rict wh erein the crime shall have been committ ed . . . and to be informed of the nature and cause of the accusation; to be confr onted with the witness es against him; to have compulsory process for obtaining witness es in his favor, and to have the Ass ist ance of Counsel for his defence.

—Sixth Amendment to the U.S. Constitution

The Sixth Amendment Right to Counsel and a Fair Trial

A defendant meets with his attorney to discuss a defense strategy. The right to counsel is the only Sixth

Amendment guarantee that extends beyond the trial.

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 377

■ What two requirements are set forth in the Sixth Amendment for

a trial?

■ What four factors are considered in determining whether a trial is

sufficiently “speedy”?

■ Where the trial is to be held?

■ What two requirements for juries are established by the Sixth

Amendment?

■ Which guarantee of the Sixth Amendment extends beyond the trial?

■ What precedent case supports the right to have an attorney present

during trial?

■ What happens if a defendant facing “deprivation of liberty” cannot

afford to hire an attorney? the precedent case?

■ When or whether a defendant accused of a misdemeanor offense

has the right to an attorney?

■ When the Sixth Amendment right to counsel exists?

■ What is required at a lineup?

■ Whether there is a Sixth Amendment right to a lawyer during

preindictment identification procedures?

■ How the court will view pretrial identification procedures to

determine whether they are unconstitutional?

■ Through how many appeals the right to counsel may be invoked?

■ What the Sixth Amendment right to counsel presumes about the

attorneys?

■ If the right to counsel is waived, what is required?

■ If people can defend themselves in a criminal trial?

■ Whether juveniles have Sixth Amendment rights?

■ How the Sixth Amendment affects corrections?

Do You Know . . .

Can You Define? adversarial judicial

system

arraignment

array

blind lineup

Brady Rule

compulsory process

court trial

critical stage

cross-racial

identification

deliberate elicitation

detainer

hearsay

indigent

jury nullification

lineup

offense specific

peremptory

challenges

preliminary hearing

pro se

showup

subpoena

venire

venue

voir dire

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378 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Introduction Although the Sixth Amendment is not the most familiar to the public, it deals with

the important matter of fairness at trial and the right to a lawyer during the time

leading up to and during prosecution.

The Sixth Amendment works well with the Fifth Amendment in that it ensures

the defendant has access to legal counsel at certain stages before being tried, as well

as a fair trial. In its own right, the Sixth Amendment stands for protecting the indi-

vidual against the government’s unlimited resources. Article III of the Constitution

requires that “a trial of all crimes . . . shall be by jury.” However, the results of a

prolonged trial prepared for and carried out by government lawyers, preceded by

the police investigating the crime, are obvious. Without limitations, government

could easily defeat the defendant merely by having the personnel, time, and

finances. Few criminal defendants have anything remotely close to what the gov-

ernment can muster in terms of legal resources, so the Sixth Amendment strives to

balance the contest.

Only a brief review of history is needed to understand why ensuring the right

to a fair trial was believed necessary. Take, for instance, the Star Chamber (2000), cre- ated in 1487 by King Henry VII and abolished in 1641, named for the room with

stars painted on the ceiling in the royal palace of Westminster, where this court was

originally held. The Crown completely controlled this court, which had wide civil

and criminal jurisdiction over everyone, including those too powerful to be tried by

lesser courts. Under a veil of secrecy, the almost unlimited authority this court

enjoyed permitted the government to subject individuals to trials without juries

and to impose unreasonable fines and prison sentences, as well as terribly cruel

torture to compel self-incrimination or as punishment.

Under the system the founders of the U.S. Constitution fled, there were few, if

any, rights pertaining to trials for the accused, if trials were even available. This

situation remains a reason many people from other countries continue to seek free-

dom under the law in the United States. The Sixth Amendment embodies the con-

cept of due process. Basic fairness is what it is about, including the rights to know what one is accused of and to hear from those accusing.

This chapter begins with a discussion of the Sixth Amendment right to a speedy,

public trial, in the area where the crime was committed, and before an impartial,

representative jury. This discussion is followed by the rights of being informed of

the accusation and confronting witnesses, sometimes through compulsory process.

The discussion next turns to the all-important right to counsel, including the right

to counsel at critical stages of criminal proceedings and the need for effective assis-

tance of counsel. Next, waiving the right to legal counsel and the right to represent

oneself at trial are described. The chapter concludes with brief discussions of juve-

niles and the Sixth Amendment, and how Sixth Amendment rights relate to

corrections.

Speedy and Public Trial Although few recent cases address speedy or public trials, a speedy, public trial is

necessary in a system that places fairness above all else, and an expeditious trial

does, indeed, promote fairness. A delayed or prolonged trial is inherently unfair.

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 379

Beginning with the assumption that a person is innocent until proven guilty,

each individual charged with a crime has the right to have this determination made

as quickly as possible. Also, the more quickly a trial occurs, the more likely wit-

nesses can be located and their memories will be accurate.

Not knowing for certain a trial’s outcome causes undue stress on those

involved, and some defendants must remain in jail because they are financially

unable to secure bail. The system, too, suffers because of the additional backup

expenses incurred by the government, and cases do not necessarily improve

with time.

Delay that harms the accused’s defense may cause the charges to be dismissed.

In Barker v. Wingo (1972), the Supreme Court held that this right is not established by delay alone and that the conduct of both the defendant and the

prosecution must be weighed. It set forth four factors to be used

in deciding whether defendants have not been afforded their right

to a speedy trial.

In Barker, the defendant was charged with murder and tried five years later after numerous continuances by the prosecution.

The Court admitted that ascertaining whether a trial failed to be

“speedy enough” to meet the requirement of the Sixth Amend-

ment is a “balancing act.” Perhaps the most important issue is

whether the defendant was unduly harmed because of the delay.

The Sixth Amendment also requires a public trial. The United States prides itself

on having a justice system open to public scrutiny. In Press-Enterprise Co. v. Superior Court (1984) the Court held, “Open trials enhance both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in

the system.”

The right to a public trial is a “double-edged sword,” however, in that it

involves the defendant’s right to a public trial to avoid the obvious wrongdoings

possible if conducted in private and pertains to the media’s right to make trials

public. This area of law requires a balance between the accused’s Sixth Amendment

rights and the public’s First Amendment rights.

Efforts have been made to achieve this balance by the Court through cases that

include Gannett Co. v. DePasquale (1979), in which the Court held that the Sixth Amendment does not permit the public (including the press) to attend every trial,

but it held in Richmond Newspapers, Inc. v. Virginia (1980) that the public does have the right to attend trials unless there is a compelling government interest in doing

otherwise, for example, in cases of national security. At play is balancing the inter-

ests of the government, the public, and the accused.

Although media coverage ensures that trials are public, at times certain tri-

als become so newsworthy as to cause concern that the accused is harmed

because of disruption in court or the case being “tried by the media.” Closing a

trial to the public is often challenged as violating the public’s First Amendment

rights. However, as ruled in Estes v. Texas (1965), if a trial turns into a three-ring circus, losing the dignified atmosphere expected in court proceedings, the

defendant can claim a deprivation of due process rights. This area of law con-

tinues to be forged, with the rights of the individual and the media, and the

limitations placed on access to trials for the benefits of each, being considered

in each case.

The Sixth Amendment requires a speedy and public trial.

Whet her a trial is suffi ciently “speedy” is det ermined by (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s ass ertion of this right and (4) the harm caused (Barker v. Wingo).

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380 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Where the Trial Is Held The trial is required to at least originate where the crime was committed, and the

jury is required to be from “the state and district wherein the crime shall have been

committed; which district shall have been previously ascertained by law.” This

district is referred to as the venue of the trial—its geographic location. Historically,

this requirement was included to prevent colonists from being returned to England

for trial. However, it has remained to permit the defendant from being removed far

from home, or at least from where the offense was committed, which could put that

much more burden on the accused.

A defendant may seek a change of venue for several reasons, most often because

of publicity or emotion in the community that may affect the trial. According to

Ferdico et al. (2009, p. 57), “Typical grounds for granting a motion for change of

venue are:

■ Such prejudice prevails in the county where the case is to be tried that the

defendant cannot obtain a fair and impartial trial there. ■ Another location is much more convenient for the parties and witnesses than

the intended place of trial, and the interests of justice require a transfer of

location.”

An Impartial Jury The importance of a jury trial is evidenced by the fact that this is the only right that

appears in both the Constitution and the Bill of Rights.

The right to a jury trial was incorporated (applied to the states through the

Fourteenth Amendment) in Duncan v. Louisiana (1968), as discussed in Chapter 4. Recall Gary Duncan was a 19-year-old Black man who slapped a White youth on

the elbow and was charged with simple battery, a Louisiana misdemeanor that held

a maximum punishment of two years in jail and a $300 fine. He was given a 60-day

jail term and fined $150 and, although requested, he was not permitted a jury trial.

On review, Justice Byron White, writing for the Supreme Court, stated, “Because

we believe that trial by jury in criminal cases is fundamental to the American

scheme of justice, we hold that the Fourteenth Amendment guarantees a right of

jury trial in all criminal cases which—were they to be tried in a federal court—

would come within the Sixth Amendment’s guarantee.” Reflecting on history,

Justice White continued, “The Declaration of Independence stated solemn objec-

tions to the King’s making ‘Judges dependent on his Will alone, for the tenure of

their offices, and the amount and payment of their salaries,’ to his ‘depriving us in

many cases, of the benefits of Trial by Jury. . . . ‘“

All crimes involving the potential of jail time do not require a jury trial, how-

ever. In Duncan, the Court stated that “petty crimes” do not require a jury trial, but the Court did not define what a petty crime was, other than to hold that 60 days in

jail was not petty. The Court said, “The penalty authorized for a particular crime is

of major relevance in determining whether it is a serious one subject to the man-

dates of the Sixth Amendment.”

An interesting exception to the general rule is that once a right has been held to

apply to the states and federal government it must be done so equally. Although a

12-person jury is required in federal court, state trials are not required to have

venue the geographic area in which a specific case may come

to trial, and the area from which

the jury is selected

The Sixth Amendment requires that the trial occur in the dist rict in wh ich the crime was committ ed.

The Sixth Amendment requires an impartial and repres entative jury.

CASE IN BRIEF

Duncan v. Louisiana (1968)

ISSUE Is the denial of a jury trial in a state criminal prosecu-

tion, where a sentence of up

to two years imprisonment is

possible, a violation of the Sixth

and Fourteenth Amendments of

the U.S. Constitution?

RULING Yes, because the right to a jury trial is “fundamen-

tal to the American scheme of

justice.”

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 381

12 jurors. Also, although federal juries must reach a unanimous vote for a convic-

tion, states require a unanimous vote only in death penalty cases. The U.S. Supreme

Court has, however, declared that state courts must have a minimum of six jurors

(Ballew v. Georgia, 1978). With six jurors, a unanimous verdict must be reached to find the defendant guilty. The Court has also held that only more serious offenses

warrant a jury trial (generally, those whose punishments could exceed jail time of

six months).

Codispoti v. Pennsylvania (1974) supports the Sixth Amendment guarantee that a criminal defendant has a right to a jury trial whenever a penalty of incarceration of

more than six months is a possibility. The Supreme Court has held that a jury trial

is not guaranteed when jail time of less than six months is the maximum possibility

(Baldwin v. New York, 1970). States may ensure a jury trial for offenses that may result in jail time less than six months, but they would not be constitutionally man-

dated to do so.

Federal and state courts have a system in place to enable them to randomly

compile lists of potential jurors. The potential jury is called an array. Taylor v. Louisiana (1975) established that the jury panel (those considered eligible to serve on a jury) may not be determined to systematically exclude any class of persons

because selection of a jury from a cross section of the community is an important

component of the Sixth Amendment.

Once the jury panel, called a venire, is established, individual jurors must be

selected, adhering to the “impartial” and “representative” parameters set forth in

the Sixth Amendment. An impartial jury is one not predisposed to prejudice for or

against the defendant. Both the prosecution and the defense seek out the most neu-

tral jury during the process of voir dire, which is when potential jurors are ques-

tioned by both sides to determine their impartiality. A potential juror who is

deemed to be biased one way or the other may be removed, or excused, for cause,

and there is no limit under the Sixth Amendment to the number of potential jurors

who may be removed by this method.

In addition to being impartial, the jury must also be representative, that is, a

“fair cross section of the community.” In Glasser v. United States (1942), the Court stated, “The proper functioning of the jury system and, indeed, our democracy

itself, requires that the jury be a ‘body truly representative of the community,’ and

not the organ of any special group or class.”

Jury selection has evolved beyond merely seeking impartial, unbiased jurors.

During the voir dire process, both sides also attempt to exclude jurors who may be

detrimental to their case and to retain those who may be beneficial. Jury selection

experts have created a science of what to ask and look for during this process, lead-

ing to justifiable inquiries about whether it truly is about only impartiality.

Although each side has a certain number of peremptory challenges they may

assert to remove a potential juror for any reason whatsoever, the use (or abuse) of

such peremptory dismissals to create a jury unfairly composed of a group likely to

find against the defendant has been held a denial of equal protection. For example,

in Strauder v. West Virginia (1879) the Court held that a Black defendant could not be tried before a jury from which all members of his race were purposely excluded.

This finding was also established in Swain v. Alabama (1965). Batson v. Kentucky (1986) held that prosecutors’ peremptory challenges to

exclude from a jury members of the defendant’s race based only on racial grounds

array list of potential jury members

venire the selected jury panel

voir dire the process of questioning potential jurors to

determine their impartiality

peremptory challenges a specific number of allowances

given to each side in a case that

they may assert to remove a

potential juror for any reason

whatsoever

MYTH A defendant always has a right to

a trial by jury.

REALITY A jury trial is required only in a

criminal trial where the judge will

impose a sentence of six months

or more.

MYTH An attorney can strike a person

from a jury for any reason.

REALITY Although an attorney generally

need not give a reason for striking

someone from a jury under a

peremptory challenge, that person

cannot be removed based on race

or gender.

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382 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

violates the equal protection rights of both the defendant and the excluded juror. In

this case, voir dire eliminated all five Black potential jurors from the jury hearing

James Kirkland Batson’s (a Black man) case. The Court held that a state denies a

Black defendant equal protection when it puts him on trial before a jury from which

members of his race have been purposefully excluded. Because it has become such

an oft-used tactic, the term Batson challenge has come to mean the act of claiming, based on this decision, that a trial should be invalidated on the basis of peremptory

challenges having excluded a cognizable group from the jury, such as excluding on

the basis of race or gender alone.

A similar situation existed in Snyder v. Louisiana (2008). In the capital murder trial of Allen Snyder, a Black man, all five prospective Black jurors were dismissed,

resulting in an all-White jury. The Court concluded that the judge acted improperly

allowing the peremptory strikes of the Black jurors.

Excluding people as jurors based on their profession is also unconstitutional

(Rawlins v. Georgia, 1906). This determination is the case throughout the legal pro- cess—treating people differently or unfairly can be considered a due process

violation.

Although the Sixth Amendment guarantees the right to a jury trial for serious

crimes, there is no requirement that a person must have a trial by jury. Competent individuals may voluntarily elect to waive any of their rights. For example, waiving

the right to a speedy trial or foregoing a jury trial altogether is not uncommon for

defendants.

For tactical reasons, a person might waive the right to a jury trial and select a

court trial, having the case heard before only the bench (or judge), without a jury.

For example, a defendant asserting only technical legal claims may have more faith

in a judge’s comprehension of the law. A defendant previously convicted on other

charges may not want to risk that information coming before a jury, which he thinks

might give it more weight than a judge would. Some crimes are sufficiently heinous

that public opinion in general could make a jury trial less desirable.

Jury Nullification In addition to the better-known options of a jury to convict, acquit, or be unable

to reach agreement, there is the de facto option called jury nullification. Jury nullification is the hotly debated ability of a jury that believes a defendant to be

guilty but acquits that person because they do not feel the circumstances would

make a conviction fair or they disagree with the law. Such an action taken by a jury

nullifies, or invalidates, the law. Although no relevant case has reached the Supreme Court, lower courts have

approved jury nullification as within the scope of options available to a jury. In

United States v. Moylan (1969) the Fourth Circuit Court stated, “If the jury feels that the law under which the defendant is accused is unjust, or that exigent circum-

stances justified the actions of the accused, or for any reason which appeals to their

logic of passion, the jury has the power to acquit, and the courts must abide by that

decision.” Sporadic cases have had to endorse jury nullification, by whatever term

used, as an option for juries because otherwise the court would be directing juries

how to decide. However, the courts have also endorsed not telling juries they have

that option because it is neither an official nor a sanctioned course of action.

court trial when a case is heard before only the bench (or

judge) without a jury

jury nullification ability of a jury to acquit a defendant even

though jurors believe that person

is guilty

CASE IN BRIEF

Batson v. Kentucky (1986)

ISSUE Does it violate the Equal Protection Clause to strike

jurors through a peremptory chal-

lenge because of their race?

RULING Yes. If the facts as determined by the trial court

show a prima facie case of

purposeful discrimination, and

the prosecutor does not provide

a neutral explanation, the Equal

Protection Clause is violated.

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 383

Why would a jury in effect nullify a law by returning a “not guilty” verdict?

Mostly because jurors do not agree with it or think it unjust. Historically, nullifica-

tion has probably occurred in such cases as when juries did not want to convict

people accused of harboring runaway slaves; juries not agreeing with prohibition

or drug laws; and, unfortunately, even juries prompted by racism refusing to con-

vict White defendants accused of murdering Blacks. A jury may also feel the pen-

alty is too harsh for the circumstances.

Opponents of nullification assert that if a jury believes a person guilty, the law

should be enforced, whereas proponents say that if a jury does not feel a law is just,

jurors need to seek justice.

Being Informed of the Accusation Fairness dictates that those accused know the charges being made against them and

in sufficient detail to respond adequately. The Supreme Court has never formally

incorporated this segment of the Sixth Amendment to apply to the states; however,

knowing what one is charged with is so fundamentally fair that it has always been

considered to fall within the Due Process Clause of the Fourteenth Amendment.

The Right to Confront Witnesses Experience shows that casting blame is always easier when one is not facing the

accused. The Confrontation Clause of the Sixth Amendment requires that witnesses

be present in court so the defendant can confront them. In Crawford v. Washington (2004), the Supreme Court limited the Confrontation Clause to testimonial state-

ments. In Davis v. Washington (2006), the Court further narrowed what the clause applied to and stated that not all those questioned by police are witnesses, and not

all questionings by police are subject to the Confrontation Clause. Davis further clarified that when police are gathering information for the purpose of handling an

ongoing emergency and not for the purpose of using it at trial, that information is

considered non-testimony and is not subject to the Confrontation Clause.

Sometimes exigent circumstances are involved in which testimonial evidence is

presented in court and the defendant has no opportunity to confront the witness.

Such was the case in Michigan v. Bryant (2011), in which the victim/witness told police, before he died, who had shot him. The victim’s statements were used at trial

to convict Bryant.

Coy v. Iowa (1988) held that a state law allowing closed-circuit television testi- mony or testimony from behind a screen violated the Sixth Amendment. Although

the Supreme Court has voiced strong preference for face-to-face confrontation,

issues in this area arise primarily regarding children’s testimony and when hearsay

evidence may be introduced.

The Supreme Court has supported state laws that seek to protect juvenile vic-

tims by permitting child abuse victims, who may be seriously intimidated by an

alleged abuser, to testify via one-way closed circuit television (Maryland v. Craig, 1990). Here, the system seeks to balance the accused’s rights with the children’s best

interests.

In Melendez-Diaz v. Massachusetts (2009), the Supreme Court looked at whether it was a violation of the Sixth Amendment right of confrontation for a prosecutor to

CASE IN BRIEF

Michigan v. Bryant (2011)

ISSUE Does it violate the Confrontation Clause to admit a

statement from a dying person

as evidence, when there is no

chance for the defendant to

confront the witness?

RULING No. When there is an ongoing emergency, and it is

clear from the circumstances that

the police questioning is meant to

meet the emergency, the state-

ment can be admitted.

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384 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

submit a drug test report without the testimony of the scientist who performed the

test. In this case Boston police seized several clear plastic bags containing a sub-

stance that resembled cocaine during their investigation. They submitted the

substance to the laboratory for analysis. The analysts generated “certificates of

analysis” and swore to their validity before a notary public as required by

Massachusetts law. The Court ruled that the certificates were improperly admitted

as evidence against the defendant’s right to confront witnesses who testify against

him. This case could affect trial strategy and significantly increase the cost of pre-

senting forensic evidence.

Although the Court ruled that the common practice of submitting laboratory

reports without testimony was unconstitutional, it also held that a “notice-and-

demand” statute, which both put the defendant on notice that the prosecution

would submit a chemical drug test report without the testimony of the scientist and gave the defendant sufficient time to raise an objection, was constitutional.

Just six months later the Court granted certiorari in Briscoe v. Virginia (2010), another case involving the right to confront witnesses. Under Virginia law prosecu-

tors are allowed to present paper reports during their case as long as they produced

the analysts responsible for the reports during the defendant’s case, if requested, shifting the burden to the defendant and creating a waiver of a constitutional right

through inaction. Virginia claims that the scheme is constitutional because the

defendants are on notice of the charges against them and may still call the forensic

analyst as a witness themselves. The Supreme Court vacated and remanded the

case to Virginia for further proceedings. However, in Bullcoming v. New Mexico (2011), the Supreme Court took a definitive stand and held that the analyst who

made a DWI report must be the one to testify, not simply a representative from the

lab or someone else who can testify about how the test was performed. The Sixth

Amendment also excludes hearsay evidence. Hearsay is an out-of-court statement

used to prove the truth of the matter asserted. Although many people assume hear-

say must originate with a third party, hearsay can actually include statements made

by the person testifying, before taking the stand. The problem with hearsay is that

the person who supposedly made the statement is not present to be cross-exam-

ined. Far too easily, someone can say, “I heard . . . ” This situation is why the general

rule is that hearsay evidence is not admissible; however, an entire body of law

addresses the exceptions, including when the person who made the original state-

ment is now dead. Similarly, even if the person who allegedly made the statement

is present for cross-examination, the defendant may not be able to get that witness

to answer if, for example, the witness claims memory loss or invokes a privilege

that will not permit them to answer (such as with a doctor/patient, attorney/client,

or spousal privilege to not testify against the other). Evidentiary law pertaining to

hearsay and exceptions is complex and voluminous.

Compulsory Process Compulsory process permits a defendant to require favorable witnesses to

appear in court, usually by a court-ordered subpoena. A subpoena requires an

individual to appear in court to testify or to bring documents or other physical

evidence to the court. To obtain compulsory process, the defendant must show

that the witness’s testimony would be relevant, material, favorable to the

hearsay an out-of-court statement used to prove the truth

of the matter asserted; can

include statements made by the

person actually testifying, before

taking the stand

compulsory process permits a defendant to require witnesses to appear in

court, usually under the issuance

by the court of a subpoena

subpoena requires an individual to appear in court to

testify or to bring documents or

other physical evidence to

the court

CASE IN BRIEF

Melendez-Diaz v. Massachusetts

(2009)

ISSUE Is a lab report con- sidered testimonial evidence for

purposes of the Confrontation

Clause?

RULING Yes. The report was created specifically for the

purpose of being used in court

as evidence, and a live witness

needs to be able to testify in

court as to the veracity of the

report.

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 385

defendant, and not cumulative (United States v. Valenzuela-Bernal, 1982). Subpoenas can be served by an officer of the court, including a sheriff or police officer, or by

any other adult who is not a party to the action. Individuals have given many

reasons for not wanting to appear in court, but their acceptance by the court is

virtually nonexistent.

Right to Counsel Recall, the Fifth Amendment deals with obtaining information, and the Fifth

Amendment right to counsel, as derived from the constitutional protection against

self-incrimination, applies only during custodial interrogation. The Sixth Amend-

ment, however, is concerned with achieving fair criminal prosecutions, and the

Sixth Amendment right to counsel is far broader, attaching at numerous stages to

assist the accused in preparing his or her defense.

The right to legal counsel has been held applicable at federal and state levels

and is an important right because individuals’ rights are monitored through attor-

neys. Legal systems in other countries, including England in the past, did not have

such a right, because, at best, a neutral judge would watch out for the defendant’s

rights. Can one remain neutral when a lawyer’s job is to aggressively represent his

client? Probably not, and the Sixth Amendment provides an accused with an attor-

ney during trial and at every critical stage of the criminal process.

The Role of Counsel

Attorneys seem to be among the most loathed professionals in society—until a

person needs one. The general public often misunderstands what attorneys do,

should do, and should not do, as well as what they can and cannot do. Among

anticipated questions for a defense attorney speaking to any group is, “How can

you defend someone you know is guilty?” The answer is quite simple: Everyone

has the right to legal representation, and every lawyer has an obligation to do

everything legally permissible to see that the client’s rights are upheld. Their job is

not to befriend, support, or get the client off. It is to ensure that those accused are afforded their legal rights and that they understand the process in which they

are involved.

This obligation does not mean lawyers can instruct their clients to lie on the

witness stand or that attorneys can provide misleading or untruthful information

to the opposing counsel. To understand the role of a criminal defense lawyer, keep

in mind that the defendant is presumed innocent until proved guilty, and the bur-

den of proving guilt beyond a reasonable doubt lies solely on the prosecutor. To

prove a case to this level is difficult.

A basic premise of the adversarial judicial system in U.S. law is that justice is

best served when both sides to the conflict give their all. If each side is expected to

aggressively assert its position, each side must be able to assert its position from

similar legal footing. Many societal ills are blamed on the lawyers representing

their clients’ interests. Because the client remains in charge of making the majority

of decisions throughout any legal process, the attorney may not even be in total

agreement with the direction the client wants the case to go.

Although representing some accused parties is distasteful to some attorneys,

particularly those clients who are “obviously” guilty or are charged with

adversarial judicial system a legal system such as that used in the United States,

which places one party against

another to resolve a legal issue,

stipulating that only in an actual

conflict will a judicial body hear

the case

The right to counsel is the only Sixth Amendment guarantee that extends beyond the trial.

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386 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

particularly offensive crimes, the defense counsel’s role is crucial. Many people do

not know what their rights are and, under the pressure of being accused and tried

for a crime, cannot be expected to make the best legal decisions for themselves. The

lawyer’s role is to know his or her client’s rights and to ensure that any infractions

are dealt with according to the law.

Development of the Right to Counsel

England’s early legal system did not include the assistance of legal counsel to fel-

ons because the government was thought likely to prevail. Undoubtedly this cir-

cumstance contributed to the colonists’ support of the right to counsel, even before

the Sixth Amendment guaranteed it. However, even then, the right to an attorney

was for only those who could afford it; those who could not went without. This

situation changed as the result of the holding in the infamous “Scottsboro Boys”

case (Powell v. Alabama, 1932), which established the constitutional necessity of having a lawyer. Powell v. Alabama involved a group of Black youths who fought with a group of Whites and threw them off the train they were on. The Black

youths were also alleged to have raped two White girls. A sheriff’s posse arrested

the defendants in Scottsboro, Alabama, and the community hostility resulted in

their having to be housed in a different city, guarded by a militia that escorted

them to the courthouse and back each day for their own protection. Rather than

any of these young, illiterate defendants having their own lawyers, the judge

appointed “all members of the bar” to render assistance. All the defendants were

indicted within a week. Each trial lasted one day and resulted in each defendant

being given the death penalty.

The U.S. Supreme Court overturned the ruling, holding that the right to assis-

tance by a lawyer is a basic, fundamental right under the Constitution: “In a capital

case, where the defendant is unable to employ counsel, and is incapable of making

his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is

the duty of the court, whether requested or not, to assign counsel for him as a neces-

sary requisite of due process of law; and that duty is not discharged by an assign-

ment at such a time or under such circumstances as to preclude the giving of

effective aid in the preparation and trial of the case.”

The Court went on to explain that even intelligent, educated laypeople have

little knowledge of “the science of law” and “Without counsel, though he may not

be guilty . . . [the defendant] faces the danger of conviction because he does not

know how to establish his innocence.” At the time this case was decided, the Sixth

Amendment had not been incorporated; therefore, it was decided under the Due

Process Clause of the Fourteenth Amendment. Today it would likely be a Sixth

Amendment case.

A series of cases have continued to shape the right to counsel. In

Harris v. South Carolina (1949), the Supreme Court began to recog- nize that if a defendant was denied access to an attorney, his or her

confession may not have been voluntary. Remember that in deter-

mining whether a confession was, indeed, given voluntarily, the

court considers the totality of the circumstances to make sure there

was due process. Spano v. New York (1959) held that there was an

CASE IN BRIEF

Powell v. Alabama (1932)

ISSUE Is due process met when a state does not provide

a specific attorney to assist a

defendant in a capital case until

the day of the trial?

RULING No. A defendant in a capital case must be provided

an attorney to assist with his

defense before the day of the trial

to meet the requirements of due

process. (This case was decided

under due process because the

Sixth Amendment right to counsel

had not yet been incorporated.)

Denying legal counsel for a defendant at trial is a denial of due process (Powell v. Alabama).

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 387

absolute right for a defendant to be represented and that a confession was not volun-

tary if the police ignored a defendant’s “reasonable request to contact the attorney he

had already retained.”

As cases continued to reinforce the right to counsel, Gideon v. Wainwright (1963) firmly held that not only was the right to counsel absolute, but also, in

all serious cases, indigent (poor, unable to afford a lawyer) defendants

accused of a felony were to be provided with legal counsel.

Gideon is considered a monumental case because it truly placed a poor, uneducated defendant against the entire gov-

ernmental system and its almost unlimited resources. Gideon

actually submitted his request to the Supreme Court in his

own handwritten appeal. To the surprise of many people, the

Court granted certiorari and, an even greater surprise, found

in his favor.

Justice Hugo Black, in writing the Gideon opinion, reflected on the Powell opin- ion, which stated, “The right of one charged with crime to counsel may not be

deemed fundamental and essential to fair trials in some countries, but it is in

ours. . . . The right to be heard would be, in many cases, of little avail if it did not

comprehend the right to be heard by counsel.”

The Gideon Court clarified the existing confusion over which offenses neces- sitated counsel be provided. In some states, only death penalty cases invoked

the right to an attorney; in other states, only felonies and not misdemeanors

invoked that right. In a previous case (Betts v. Brady, 1942), the Supreme Court had held that the requirement of providing poor defendants with legal counsel

in felony trials did not extend to the states. This decision was overruled in

Gideon, which held that any indigent defendant accused of a felony, in federal and state court, be provided a lawyer. See

Figure 11.1 for a sample statement of indigency.

In 1972 in Argersinger v. Hamlin, the Court extended the right to an attorney to defendants accused of misdemeanor offenses.

This ruling turned the process somewhat on end, requiring a

backward-looking logic in that the judge would need a degree of

prescience to know ahead of time, before the actual trial, if he or

she would be sentencing the defendant to jail or prison.

Many thought Argersinger, if implemented, would bankrupt the state. The Supreme Court countered this fear in Scott v. Illinois (1979), which made actual, not potential, punishment the trigger for the right to

counsel. In Halbert v. Michigan (2005), the Court held that indigent defendants, even after pleading guilty, are entitled to have a lawyer appointed when seeking

a direct appeal.

As law pertaining to the constitutional right to counsel was changing, questions

were necessarily being raised. One key question was whether there were times

before trial that could require counsel. The case of young Danny Escobedo answered that question, while setting the stage for others, all of which continued to forge

Sixth Amendment law.

In Escobedo v. Illinois (1964), the police repeatedly refused to permit Escobedo access to the lawyer he had hired. The lawyer was told he could not see his client,

indigent poor, unable to afford a lawyer

Gideon v. Wainwright es tablished that indigent defendants are to be provided lawyers wh en faced with a “deprivation of liberty.”

CASE IN BRIEF

Gideon v. Wainwright (1963)

ISSUE Must a state court appoint counsel for an indigent

defendant in a felony level case?

RULING Yes. Under the Constitution’s Sixth Amendment,

counsel must be provided when

a defendant is charged with a

felony.

In Argersinger v. Hamlin the Court extended the right to an att orney to defendants accused of misdemeanor off enses . Any time the penalty could include prison, the defendant must have access to a lawyer.

MYTH As a criminal defendant, you will

be provided an attorney by the

state if you want one.

REALITY Not necessarily. You must face

the potential of incarceration

and meet certain financial

requirements for the state to

provide an attorney.

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388 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

FINANCIAL STATEMENT ELIGIBILITY DETERMINATION FOR INDIGENT DEFENSE SERVICES Presumptive Eligibility: I currently receive the following type(s) of public assistance in City/County

AFDC $ Food Stamps $ Medicaid

Supplemental Security Income $ Other (specify type and amount)

I currently do not receive public assistance.

Names and addresses of employer(s) for defendant and spouse: Self

Spouse

NET INCOME: Self Spouse Pay period (weekly, every second week, twice monthly, monthly)............. Net take-home pay (salary/wages, minus deductions required by law).... $ Other income sources (please specify)—see reverse

............ $ TOTAL INCOME $ + ASSETS: Cash on hand............................................................................................. $

Bank accounts at:....................................................................................... $ Any other assets: (please specify) with a value of ............ $

Real estate $ $ Net Value

with net value of ............ $

Other Personal Property: (describe)

........................... $ TOTAL ASSETS $ +

EXCEPTIONAL EXPENSES (Total Exceptional Expenses of Family)

Medical Expenses (list only unusual and continuing expenses) ........................$ Court-ordered support payments/alimony .......................................................... $ Child-care payments (e.g., day care) .................................................................$ Other (describe): $

TOTAL EXPENSES $

COLUMN “A” plus COLUMN “B” minus COLUMN “C” equals available funds

THIS STATEMENT IS MADE UNDER OATH: ANY FALSE STATEMENT OF A MATERIAL FACT TO ANY QUESTION CONTAINED HEREIN SHALL CONSTITUTE PERJURY UNDER THE PROVISIONS OF §19.2-161 OF THE CODE OF VIRGINIA. THE MAXIMUM PENALTY FOR PERJURY IS CONFINEMENT IN THE PENITENTIARY FOR A PERIOD OF TEN YEARS.

I hereby state that the above information is correct to the best of my knowledge.

Name of defendant (type or print)

Date Signature

Sworn/affirmed and signed before me this day.

Date Signature Title

FORM DC-333 4/93 (1143-021 5/94)

Case No..........................................

COURT USE ONLY

Year and Make

Motor Vehicles

Number in household:

Number of dependents (spouse/children)

whom you support:

}

Figure 11.1 Statement of Indigency

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 389

and the police told Escobedo his lawyer did not want to see him. Escobedo was

22 years old, had no prior contact with police, and was kept handcuffed and

standing throughout the interrogation, with testimony affirming that Escobedo

was exhausted from lack of sleep. Eventually, he admitted to the murder of his

brother-in-law. Justice Arthur Goldberg stated, “We hold [that when] the investi-

gation is no longer a general inquiry into an unsolved crime but has begun to

focus on a particular suspect, the suspect has been taken into police custody, the

police [interrogate], the suspect has requested and been denied an opportunity to

consult with his lawyer and the police have not effectively warned him of this

absolute constitutional right to remain silent, the accused has been denied the

assistance of counsel in violation of the Sixth Amendment to the

Constitution as made obligatory upon the states by the Four-

teenth Amendment.”

These cases present an excellent example of how common law

develops. Powell established criminal defendants’ right to a law- yer at trial, Gideon established that indigent defendants must be provided an attorney at trial, and Escobedo established that the right to counsel attaches during a criminal investigation when

that investigation begins to focus on an individual.

Current Developments

Although the Sixth Amendment guarantees every criminal defendant the right

to a competent lawyer, many states do not keep that promise. Because more than

80 percent of defendants are unable to pay for their own lawyers, problems with

indigent defense reach to the core of the criminal justice system. Now, however,

defense lawyers are about to receive assistance from a new program called

Access to Justice Initiative, aimed at helping low-income individuals receive

legal help. According to Attorney General Eric Holder, “Although they may

stand on different sides of an argument and on different sides of a courtroom,

the prosecution and defense can and must share the same objective: not victory,

but justice” (Shapiro, 2010).

Right to Counsel at Critical Stages of Criminal Proceedings Through a series of cases, including those discussed, the Supreme

Court has held that no one may be imprisoned for any level of

crime without legal representation, unless the accused have

knowingly and intelligently waived this right (Faretta v. California, 1975). Through the additional development of Sixth Amendment

law, the Court deemed the right to an attorney applies to trial

proceedings and to every critical stage of a criminal proceeding,

considered to occur “where substantial rights of a criminal . . .

may be affected” (Mempa v. Rhay, 1967). In other words, any step during a criminal prosecution in which the accused’s rights may

be affected by the absence of legal representation is considered a

critical stage.

critical stage any step during a criminal prosecution in

which the accused’s rights may

be affected by the absence of

legal representation

When police inquiry has begun to focus on a particular suspect , custodial interrogation at the police station entitles a suspect to legal repres entation (Escobedo v. Illinois).

The Sixth Amendment right to legal counsel occurs at every critical stage of a criminal proceeding, including during the inves tigation, during custodial interrogation, and postindict ment interrogation, during postindict ment identifi cation, at arraignment, at hearings, during the trial, and at sentencing.

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390 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

The Sixth Amendment is triggered not by prosecutorial action but by judicial

proceeding (Rutledge, 2008). Consider the following Sixth Amendment rules:

■ The Sixth Amendment right to counsel attaches with the grand jury indict-

ment or arraignment (or other first judicial appearance) on a complaint or

official charge. ■ After attachment the defendant can assert the right by hiring a lawyer, request-

ing one, or accepting appointment by the court. ■ If there is any opportunity between attachment and assertion, police can seek

a waiver and obtain an admissible statement. ■ Following attachment and assertion, no valid waiver can be obtained for

police-initiated questioning on that particular case. ■ Attachment and assertion as to one offense does not affect questioning on

another (except for lesser-included offense). (Rutledge, 2008)

Critical Stages during the Criminal Investigation

In criminal investigations that continue after a defendant is charged, the Supreme

Court has identified several events as critical stages that require a lawyer, pursuant

to Sixth Amendment protection. Massiah v. United States (1964), heard the same year as Escobedo, held that statements a defendant makes after being charged with a crime, being a critical stage and having retained an attorney, would not be admis-

sible if the attorney is not present. In Massiah, after Massiah was indicted, federal agents paid his codefendant to converse with him in the presence of a hidden radio

transmitter. Justice Potter Stewart, writing for the Court, stated, “We hold that the

petitioner was denied the basic protections of that guarantee when there was used

against him at his trial evidence of his own incriminating words, which federal

agents had deliberately elicited from him after he had been indicted and in the

absence of his counsel.”

United States v. Henry (1980) established that a defendant’s Sixth Amendment right to counsel is violated if police intentionally create a situation likely to result in

incriminating statements.

The well-known Miranda v. Arizona case (1966), discussed in the preceding chapter, further clarifies when a person has the right to counsel. In this case, the

Supreme Court stipulated four warnings to be given to suspects in custody. Two of

these warnings deal with the right to counsel. The Miranda warning is meant to safeguard the Fifth Amendment right against self-incrimination and to declare that

a person who is questioned while in police custody has a right to an attorney. The

right to counsel is extended by the Sixth Amendment to apply to any critical stage

during a criminal prosecution.

Miranda invokes both the Fifth Amendment right against self-incrimination and grants the right to counsel as a way to protect an accused’s Fifth Amendment rights.

The exclusionary rule will prohibit confessions obtained in violation of these rights

from being used in court. In comparing the right to counsel under Miranda versus Massiah, consider the following points:

■ Miranda applies only if the suspect is in custody; Massiah applies either in or out of custody.

CASE IN BRIEF

Massiah v. United States (1964)

ISSUE Does it violate the Sixth Amendment to use a statement

by a defendant made to a

government informant after being

charged and retaining counsel?

RULING Yes. Once the defendant is charged and obtains

an attorney, he cannot be inter-

rogated by government agents

without an attorney present.

Aft er a defendant has been charged with a crime and ret ained an att orney, that att orney must be pres ent during any subsequent ques tioning.

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 391

■ Miranda custody arises at arrest or equivalent physical restraint; Massiah attaches at the initiation of adversarial proceedings, for example, indict-

ment, arraignment, or preliminary hearing by indictment or first court

appearance. ■ Miranda does not prohibit undercover questioning; Massiah allows

passive listening, but not active undercover questioning. (Rutledge, 2006,

p. 72)

Questioning after the arraignment may not occur either, unless an attorney repre-

senting the defendant is present. In Brewer v. Williams (1977), the Supreme Court affirmed what they held in Massiah, requiring legal counsel after indictment by requiring it after the arraignment. Brewer deserves more careful analysis because it illustrates how law enforcement officials can stray from the confines of the Con-

stitution in a way that may not be physically abusive but psychologically manipu-

lative in an effort to solve a particularly heinous crime. In this case, although the

defendant was not interrogated through the usual question-and-answer method,

there was a deliberate elicitation of incriminating statements, meaning the

method used purposefully, yet covertly, produced similar or identical effects.

What occurred was almost the same as interrogation because the desired result

was the same, as discussed in Chapter 7 and the Christian Burial Speech. Some

may treat the concept of deliberate elicitation as synonymous with functional equiva- lent; they are not, however, the same. Deliberate elicitation is the standard used by the Court when referring to Massiah violations; functional equivalent is used for Miranda violations.

Brewer v. Williams also shows how multiple legal issues may evolve from one case, including Fifth and Sixth Amendment issues, the use of the exclusionary rule

and the creation of the inevitable discovery doctrine, all of which paint a fascinating

legal picture of how the Supreme Court finds itself addressing complex issues in

particularly troubling factual circumstances.

In holding that the Christian Burial Speech was a de facto interrogation carried

out in a way that might have been even more successful than a traditional question-

ing might have been, the Court found it to deliberately elicit incriminating state-

ments to the same degree as a custodial interrogation, rendering any evidentiary

statements to be inadmissible. Thus, the defendant’s statements that led to the

discovery of the victim’s body could not be used in the subsequent trial. Although

Fifth Amendment Miranda issues existed in Brewer v. Williams, the Court did not address those and decided the case based, instead, on the Sixth Amendment and

Massiah violations. Chief Justice Warren Burger authored a blistering dissent, arguing against the

use of the exclusionary rule here, stating, “The result in this case ought to be

intolerable in any society which purports to call itself an organized society. It

continues the Court—by the narrowest margin—on the much-criticized course

of punishing the public for the mistakes and misdeeds of law enforcement offi-

cers, instead of punishing the officer directly, if in fact he is guilty of wrongdo-

ing. It mechanically and blindly keeps reliable evidence from juries whether the

claimed constitutional violation involves gross police misconduct or honest

human error.”

deliberate elicitation the Massiah standard that violates

the Sixth Amendment by

purposefully, yet covertly, drawing

out incriminating statements from

a suspect whose Sixth

Amendment right to counsel has

attached but who has not waived

the right

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392 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Justice was to prevail, however, as described in Chapter 7. When Williams was

retried on appeal, with this case captioned as Nix v. Williams (1984), the inevitable discovery doctrine was adopted by the Court to allow the evidence of the victim’s

body to be admitted. Why? Because at the same time the detective was using an

illegally obtained statement to locate the body, volunteer searchers were actually

approaching the body and, regardless of the admission by Williams, would have

inevitably discovered her body.

Herein lies the importance of thoughtful and well-executed work by criminal

justice professionals. Can one blame the detective for his motive, when in fact, he

testified at the trial, “I was hoping to find out where that little girl was”? A child

was abducted on Christmas Eve by an escaped mental patient. Probably the last

thing on his mind was what the case was evolving toward, eventually being dis-

sected by the U.S. Supreme Court. This case illustrates the importance of thorough

investigations, a working understanding of the Constitution, and effective report-

writing skills.

Rights during Identification

In addition to questioning people, police work involves identifying perpetrators in

the course and scope of case preparation, with the ultimate hope of a successful

prosecution. If a suspect is identified during this phase and how it occurs are signifi- cant pretrial events, which the Supreme Court has considered in assessing when

Sixth Amendment right-to-counsel protection occurs.

Although eyewitness testimony is a valuable investigative tool that provides

compelling evidence in court, “Unfortunately, mistaken eyewitness identification is

Antonio had been arrested because of a parole vio-

lation warrant, the result of being charged with a

felony domestic assault in which he broke his girl-

friend’s nose. Antonio hired a private attorney

who represented him when he was charged with

the felony. The warrant came out after this, and the

local police picked him up.

While transporting Antonio to jail on the war-

rant, the officer driving Antonio strikes up a con-

versation with him. The officer, not intending to

elicit any information from Antonio (he didn’t

even know about the assault charge), begins to talk

about his girlfriend and how frustrating she is to

him. She is emotional and is always complaining

when the deputy goes out with his friends.

Antonio is quiet at first, but then begins to nod

in agreement with the officer. Antonio then adds

that he has had the same problem with his girl-

friend and says, “The last time she complained I

just lost it. I knew what I was doing but I couldn’t

take it anymore. I just popped her in the nose to

shut her up.”

This statement is used to convict Antonio.

■ Should this statement be allowed in court as evidence?

■ What situation applies here: the deliberately elicit standard or the functional equivalent standard? Why?

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 393

the single greatest cause of wrongful convictions nationwide. Mistaken eyewitness

identification has been reported to play a role in more than 75 percent of the convic-

tions that have been overturned by DNA testing” (Modafferi et al., 2009, p. 78). Two

key factors leading to mistaken identification are improper suggestion by the offi-

cers and others, and inaccurate perceptions by the witness, the latter factor being

difficult to address because it is derived from the average person’s lack of training

in observation compounded by a stressful situation (Modafferi et al., 2009). Inac-

curate witness perception may also involve impaired cross-racial identification,

a situation in which people of one race have difficulty recognizing facial attributes

of other races.

Terms applicable to this area of criminal procedure define ways police identify

suspects to victims or other witnesses. A showup is when only one individual is

shown to the victim or witness. A lineup occurs when the victim or witness is

shown several people, including the suspect. In addition to viewing actual people,

either can occur with photos, video or even audio recordings when the suspect’s

voice was a factor.

Gaertner and Harrington (2009, p. 130) note, “Highly publicized DNA exon-

eration cases, most of which involved mistaken eyewitness identifications, have

focused public scrutiny on law enforcement procedures and challenged law

enforcement practitioners both to reexamine long-standing practices and to

implement change that will reduce the likelihood of such misidentification in the

future.” Two suggested lineup reforms are supported by more than a quarter

century of scientific study—blind lineups and sequential lineups. A blind lineup

is one conducted by someone who does not know who the suspect is and thus,

presumably, cannot offer any cues or prompts (whether conscious or subcon-

scious) to the witness as to who the suspect might be. A sequential lineup requires

that photos or individuals be viewed one at a time rather than side by side, with

the witness required to make a decision about each before viewing the next. This

reduces the opportunity to compare those in the lineup and keeps witnesses from

picking the person “most similar.” Considerable research has been done, but the

results are inconclusive (Mecklenburg et al., 2008). Those who are not persuaded

by the superiority of the sequential, blind lineup question the applicability of

laboratory research to the real world and the legal and practical implementation

issues present in the real world. The debate about these proposed changes will

continue.

The Supreme Court has primarily held that right to counsel and due process

apply to the area of witness identification of a suspect. Because Sixth Amendment

protection occurs during critical stages of the criminal proceedings, it makes sense

that when someone has been charged with a crime, an identification procedure

such as a lineup would necessitate involving the accused’s attorney. However,

before a suspect has been charged, there is no Sixth Amendment protection of right

to counsel. Nonetheless, due process will dictate that any identification process

must not be unnecessarily suggestive.

The Supreme Court has decided several important cases that pertain to pretrial,

yet postindictment, identification rights, the two most significant cases being Wade and Gilbert. Because this stage is critical in the legal proceedings, a lawyer will be appointed if the defendant cannot afford one, with failure of the government to so

act causing any resulting evidence to be inadmissible (United States v. Wade, 1967).

cross-racial identification suggests that people of one race

have difficulty recognizing facial

attributes of other races

showup identification technique in which only one

individual is shown to the victim

or witness

lineup identification technique in which the victim or witness is

shown several people, including

the suspect

blind lineup one conducted by someone who does not know

who the suspect is

MYTH Eyewitness identification is the

best form of evidence possible.

REALITY Maybe, or maybe not. Numerous

studies have shown eyewitness

identification may not be as

reliable as thought. Stress,

emotions, and tunnel vision,

among other things, impact

eyewitness identification.

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394 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

In addition, the Court addressed the inherent unreliability of eye-

witness identifications and the potential for prompting in one

form or another during the process, surmising that once an iden-

tification is made the witness “is not likely to go back on his word

later on, so that in practice the issue of identity may . . . for all

practical purposes be determined there and then, before the trial”

(Gilbert v. California, 1967). An attorney’s presence will oversee the fairness of the proce-

dure, including making sure the process is not “so unnecessarily

suggestive and conducive to irreparable mistaken identification

that he was denied due process of law” (Stovall v. Denno, 1967). Thus, constitutional challenges could include a Sixth Amendment

right-to-counsel defense or a due process claim.

In Foster v. California (1969), a robbery suspect was put in a lineup with two other men, but only Foster was wearing a jacket

like the one worn during the robbery, and he was noticeably taller

than the others participating in the lineup. Even after speaking in

a separate office with only Foster (not the other men in the lineup),

the witness still could not identify Foster, but did a week and a

half later when viewing a different lineup with four different men. In noting how

suggestive these elements were, the Court held that such conditions violate a per-

son’s due process rights.

There is no right to counsel before someone is charged with a crime. In Kirby v. Illinois (1972), the Supreme Court held that the right to legal counsel attaches “at or after the initiation of adversary judicial criminal proceedings—whether by way of

formal charge, preliminary hearing, indictment, information or arraignment.”

Because the initiation of criminal proceedings is the beginning of the adversarial

judicial system, anything thereafter is a critical stage. However, events that occur

beforehand are not considered to be critical stages, so there is not a Sixth Amend- ment right attached.

This circumstance means that when police conduct a showup

by having a victim or witness look at an individual, or conduct a

photo lineup during their preliminary investigation before the

suspect is charged, that suspect has no right to legal representa-

tion. Again, however, police may not make such events unneces-

sarily suggestive, so documentation needs to occur to address

such a concern. For example, if a photographic lineup is used, the

police should photocopy the entire set of pictures from which the

witness could select. Courts have found that one-person showups

are not necessarily unconstitutional because police are expected

to occasionally make immediate identifications. The Court has viewed showups as

beneficial, allowing for a spontaneous response by a victim while memory is fresh,

as long as the police are not unnecessarily suggestive or “aggravate the suggestive-

ness of the confrontation” (Johnson v. Dugger, 1987). Even when an identification procedure is found by a court to be unnecessarily suggestive, the resulting identi-

fication may be admissible if the reliability of the witness can be established

(Schuck, 2009).

Preindict ment, or before being formally charged, identifi cation procedures are not critical stages of criminal proceedings, so there is no Sixth Amendment right to a lawyer.

In the Wade-Gilbert rule, the Supreme Court held that pret rial lineups conducted aft er charging (postindict ment) invoke Sixth Amendment prot ect ion and require that the suspect have a lawyer pres ent.

Lineups may not be arranged in such a manner as to make the defendant stand out fr om the ot hers in any unnec ess arily sugg es tive ways.

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 395

Under Supreme Court guidance, lower courts continue to view identifica-

tion issues in light of the totality of the circumstances to determine reliability

and whether due process rights were infringed on. For example, even when

there has been a delay of seven months after the crime in conducting a showup,

as was the case in Neil v. Biggers (1972), it was not prohibited. In Biggers, the Supreme Court set forth five factors courts should consider in determining a

witness’s reliability:

■ The opportunity of the witness to view the defendant during the crime (How close was the suspect to the victim? Was there sufficient light to see?)

■ The level of attention the witness was paying to the defendant ■ The accuracy of any descriptions of the defendant made by the witness before

the identification procedure ■ The witness’s level of certainty in his or her identification (Is the suspect

100 percent certain the suspect committed the crime?) ■ The time between the crime and confrontation

Even when the suspect has been arrested, the Court has been willing to permit a

deviation from the Wade-Gilbert rule if there is a danger of a witness dying or becoming otherwise unable to view the suspect, or if the suspect might die. Such

was the case in Stovall v. Denno (1967), when, after the suspect was alleged to have stabbed a doctor to death and seriously injured the doctor’s wife,

the suspect was taken to the victim’s hospital room, where she

identified him before he was permitted to speak with a lawyer.

Here, the court held that whether a due process violation occurred

depended on the totality of the circumstances, with timing being crucial in such a case.

However, in Perry v. New Hampshire (2012) the Supreme Court refused to extend the due process analysis to a showup situation

that was not created by the police:

We have not extended pretrial screening for reliability to cases in which the

suggestive circumstances were not arranged by law enforcement officers.

Petitioner requests that we do so because of the grave risk that mistaken identi-

fication will yield a miscarriage of justice. Our decisions, however, turn on the

presence of state action and aim to deter police from rigging identification

procedures, for example, at a lineup, showup, or photograph array. When no

improper law enforcement activity is involved, we hold, it suffices to test reli-

ability through the rights and opportunities generally designed for that purpose,

notably, the presence of counsel at postindictment lineups, vigorous cross-

examination, protective rules of evidence, and jury instructions on both the

fallibility of eyewitness identification and the requirement that guilt be proved

beyond a reasonable doubt.

Critical Stages at Hearings, Trials, and Appeals

Legal counsel is required in court at any jurisdictional level for criminal offenses

that would result in imprisonment. What about events that occur in court other

than an actual trial?

The court will view pret rial identifi cation procedures in the tot ality of circumstances wh en det ermining wh ether they were unconstitutional.

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396 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

In 1970 in Coleman v. Alabama, the Supreme Court held that a preliminary hearing is a critical stage of the criminal prosecution and, thus, invokes the right to

counsel because it is a formal adversarial proceeding. The preliminary hearing

determines whether probable cause exists to believe a crime has been committed

and that the defendant committed it. Moore v. Michigan (1957) established that a defendant has the right to counsel while submitting a guilty plea to the court. Later,

in Hamilton v. Alabama (1961) the Court held that an arraignment, the hearing at which the defendant is required to enter a plea, is a critical stage under the Sixth

Amendment.

In the 1986 case of Michigan v. Jackson, Robert Bernard Jackson requested appointment of counsel at his arraignment on a murder charge. But before he had

a chance to consult with counsel, police officers, after advising him of his Miranda rights, questioned Jackson and obtained a confession. Jackson was convicted over

his defense attorney’s objection to the admission of the confessions in evidence. The

Michigan Supreme Court held that the confession was improperly obtained in vio-

lation of the Sixth Amendment. The Supreme Court agreed that the confession

should have been suppressed, citing the Edwards decision (discussed in Chapter 10) and noting that the reasoning behind Edwards—that once a suspect has invoked his right to counsel, police may not initiate interrogation until counsel has been made

available to the suspect—applied with even greater force to this case: “The assertion

of the right to counsel is no less significant, and the need for additional safeguards

preliminary hearing a critical stage of criminal

proceedings when it is

determined if probable cause

exists to believe a crime has

been committed and that the

defendant committed it

arraignment usually the first court appearance by a defendant

during which the accused is

advised of his or her rights,

advised of the charges, and given

the opportunity to enter a plea

Mr. Smith had parked his car in his driveway and

was walking to the front door of his house. As he

neared the door he saw that it was damaged and

standing open. Just then, a man came running out

of the house and collided with Smith, who was

already calling police on his cell phone.

The man and Smith both fell to the ground.

Smith had a few seconds to stare into the man’s

face before the man got up and ran. Smith told

police what he had observed: a 20- to 25-year-old

man, wearing a white t-shirt and blue jeans, with a

goatee and brown eyes. The man also had a tattoo

on his left cheek.

Officers were already in the area and heard

the burglary call. The dispatcher told officers the

description of the suspect. Within a minute

the officers spotted a person matching the descrip-

tion two blocks from Mr. Smith’s house. The man

was not hard to spot because it was 10:00 p.m. and

there was no one else out in this residential

neighborhood.

Mr. Smith walked over to where the police had

stopped the man. The police had the man step

from the back of the police car and stand 15 feet

from Mr. Smith. The man was in handcuffs and one

officer stood next to him.

The other officer stood next to Mr. Smith and

said, “This is the only guy around, and we were in

the area within seconds of you calling.” Mr. Smith

identified the man police stopped as the burglar.

■ Was this show-up unnecessarily suggestive? Why or why not?

■ Do you think Mr. Smith was able to accurately identify the burglar?

■ Do you think stress or emotions play a role in accurate memory recall?

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 397

no less clear, when that assertion is made at an arraignment and when the basis for

it is the Sixth Amendment.”

Thus, the Jackson rule established that once the accused has invoked his or her right to counsel, police may not question the accused without that attorney being

present, even if the accused agrees to waive the right to have their attorney present

during that particular session of questioning. Under Jackson it follows that any waiver of that right is presumed to be invalid because it was not made with the

advice of counsel, and any evidence obtained through interrogation after the invo-

cation of the right to counsel is inadmissible.

The Jackson rule, which the Court later described as a “wholesale importation of the Edwards rule into the Sixth Amendment,” is a prophylactic rule established to prevent police from badgering an accused for inculpatory information once the

right to counsel has been invoked. The Jackson Court decided that a request for counsel at an arraignment should be treated as an invocation of the Sixth Amend-

ment right to counsel “at every critical stage of the prosecution.”

Nearly a quarter of a century later, however, the Supreme Court issued a deci-

sion in Montejo v. Louisiana (2009) that overruled Jackson. In this case Jesse Jay Montejo was sentenced to death for murder and robbery. He was read his rights and

admitted to shooting the victim during a robbery. At the preliminary hearing, the

judge ordered a public defender be appointed to Montejo, but before he met with

his court-appointed attorney, Montejo accompanied officers to where he indicated

he had thrown the weapon into the lake. During the drive, Montejo also wrote a

letter of apology to the victim’s widow. On his return he met with his attorney, who

was incensed that his client had been interrogated in his absence and that the letter

was admitted into evidence. Montejo was convicted and sentenced to death.

The Louisiana Supreme Court upheld the conviction noting that in Louisiana,

as in many other states, lawyers are automatically assigned to indigent defendants,

removing any question of whether Montejo specifically “requested” counsel at his

arraignment. The court explained that Montejo waived his Sixth Amendment right

to counsel by remaining mute and not acknowledging the appointed counsel.

According to the court, something beyond “mute acquiescence” is required to trig-

ger Sixth Amendment protection. The Supreme Court, however, followed a differ-

ent line of reasoning to reach a similar conclusion, arguing that the Jackson framework was unworkable in jurisdictions that appoint counsel regardless of a

defendant’s request. The Court stated that the protections afforded under Miranda, Edwards, and Minnick v. Mississippi (1990), a case introduced in Chapter 10, were sufficient to protect a defendant’s Sixth Amendment rights from police badgering

that might elicit culpable evidence.

In its 5–4 ruling the Court affirmed Montejo’s conviction stating, “Jackson deters law enforcement officers from even trying to obtain voluntary confessions.

When the marginal benefits of the Jackson rule are weighed against its substantial costs to the truth-seeking process and the criminal justice system, we readily con-

clude that the rule does not pay its way. Michigan v. Jackson should be and is now overruled.” According to Rutledge (2009, p. 64), “Under the Montejo ruling, it will now be possible for law enforcement officers to attempt to obtain a waiver and an

admissible statement from a defendant without running afoul of the Sixth Amend-

ment, even after he has been indicted or has made his first court appearance on the

case and has an attorney or has asked for one.”

CASE IN BRIEF

Montejo v. Louisiana (2009)

ISSUE Is a waiver to the Sixth Amendment right to counsel

invalid simply because the right

has attached?

RULING No. Overruling the holding in Jackson, the Supreme

Court stated that Miranda,

Edwards, and Minnick provide the

necessary protections to a defen-

dant, whether waiving or invoking

the right to counsel under the

Sixth Amendment.

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398 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Douglas v. California (1963) held that the first appeal, a right itself, necessitated counsel. This right extends to only the first

appeal and no further.

During the trial itself, both sides must abide by the rules of fair-

ness. The first due process case regarding a trial was Mooney v. Holohan (1935), which held that deliberate use of perjured testimony by the prosecutor and deliberate nondisclosure of evidence that

would have impeached the perjury violated due process. This hold-

ing was reiterated almost 30 years later in Brady v. Maryland (1963), which established the rules for “discovery,” making unconstitutional “trial by ambush,” where the

defense learns the identity of prosecution witnesses when they walk down the court-

room aisle.

Brady involved a defendant who admitted participating in a murder but claimed his companion did the killing. Before trial, John Brady’s lawyer asked the

prosecutor to allow him to examine the companion’s statements. The prosecutor

complied but withheld the statement in which the companion admitted doing the

killing. The defense did not learn of this withheld exculpatory evidence until after

Brady was convicted and sentenced. On appeal the Supreme Court reversed

Brady’s conviction saying, “The suppression by the prosecution of evidence favor-

able to an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” This holding is called the Brady rule.

In Texas v. Cobb (2001), the Court asserted that the right of counsel applies only to charged offenses. In this case, Raymond Levi Cobb was charged with burglary, at which time his Sixth Amendment rights attached. Later, however, while Cobb was

awaiting trial, the police questioned Cobb about the murder of a mother and her

child that occurred during the burglary. Cobb waived his Miranda rights and con- fessed to the murders. Cobb’s defense was that his Sixth Amendment rights were

violated because he was awaiting trial and should not even have been talked to

without his lawyer present, whether he waived his rights or not.

The Supreme Court disagreed, relying on McNeil v. Wisconsin (1991), holding that the Sixth Amendment is “offense specific,” applying only to the offense

charged. Even if another crime arises out of that course of conduct, if the additional

crime has even one separate element, it is considered an entirely new set of circum-

stances for Sixth Amendment purposes. The Court also referred to Blockburger v. United States (1932), which held that when the “same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one . . . is whether each provision requires

proof of a fact which the other does not.”

An example would be a suspect indicted for unlawful possession of a firearm

used for a robbery but not yet charged with the offense. The “closely related” doc-

trine would have prevented officers from getting a statement or conducting a

lineup without the suspect’s lawyer present. In Texas v. Cobb, however, the Supreme Court rejected the closely related doctrine and ruled that the Sixth Amendment

right to counsel is “offense specific,” that is, it applies only to the specific charges

for which the defendant has been indicted or arraigned. This is in contrast to the

Fifth Amendment right to counsel, which is not offense specific and, once invoked,

means that all questioning must stop.

Brady rule the suppression by the prosecution of evidence

favorable to an accused on

request violates due process

when the evidence is material

either to guilt or to punishment,

irrespective of the good faith or

bad faith of the prosecution

offense specific the Sixth Amendment right to counsel

applies only to the specific

charges for which the defendant

has been indicted or arraigned

CASE IN BRIEF

Texas v. Cobb (2001)

ISSUE Does the Sixth Amend- ment right to counsel attach only

to the crime charged and not to

related but uncharged crimes?

RULING Yes. The right to counsel under the Sixth Amend-

ment is offense specific.

CASE IN BRIEF

Brady v. Maryland (1963)

ISSUE Does it violate the Constitution to withhold evidence

from the defense?

RULING Yes. When the evidence is favorable to the defen-

dant and is material to the deter-

mination of guilt or innocence, it

violates due process to withhold

that evidence, regardless that it is

done with good or bad faith.

Any hearing or trial through the fi rst app eal of right invokes the Sixth Amendment right to counsel, but the right does not extend to any additional app eals.

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 399

Billy was in jail awaiting trial after being charged

with distributing marijuana. During his time in

jail, he asked several inmates if they knew anyone

who would “take care” of the witnesses who were

to testify against him. These inmates went to

prison officials, who in turn notified the police.

After hearing this, the police put a paid informant

in the cell with Billy. The informant was told not to

ask Billy anything about his marijuana dealing, but

he was free to inquire all he wanted about Billy want-

ing someone to “take care” of the witnesses.

The informant stayed with Billy for five days in

the cell. Billy asked several times if the informant

knew anyone he could hire. The informant finally

said he did, and Billy went so far as to give the infor-

mant names and addresses and have his girlfriend

deposit money into the informant’s bank account.

Billy was later charged with conspiracy to com-

mit murder and witness tampering based on the

informant’s information. Billy moved to have the

evidence suppressed claiming violation of his Sixth

Amendment right to counsel. The court denied this

because the informant asked Billy about these related

crimes before he was charged with them (he had been charged only with distributing marijuana at that

point), and the right to counsel had not yet attached.

■ When did the right to counsel attach in each crime?

■ What effect does the timing of each charge have on whether or not police can question Billy?

■ Think back to Miranda. Does it come into play in this scenario?

Constitutional Law in ACTION

The courts have determined that sentencing is also a critical stage in the crimi-

nal justice process. Townsend v. Burke (1948) held that a convicted offender has a right to counsel at the time of sentencing.

Table 11.1 summarizes the major Supreme Court cases granting the right to

counsel throughout the critical stages of the criminal justice process.

Even when statements are not admissible regarding the charged offense because

the person’s Sixth Amendment rights were violated, they are still admissible to

impeach the witness, meaning to prove that person committed perjury. In Michigan v. Harvey (1990), Chief Justice William H. Rehnquist stated, “If a defendant exercises his right to testify on his own behalf, he assumes a reciprocal ‘obligation to speak

truthfully and accurately’ and we have consistently rejected arguments that would

allow a defendant to turn the illegal method by which evidence in the Govern-

ment’s possession was obtained to his own advantage, and provide himself with a

shield against contradiction of his untruths.”

More recently, in Kansas v. Ventris (2009), the Court held that self-incriminating statements obtained in the absence of a knowing and voluntary waiver of the Sixth

Amendment right to counsel were admissible at trial for the purpose of impeach-

ing a defendant’s testimony. In this case, while Donnie Ventris was in jail awaiting

trial on charges of aggravated robbery and aggravated battery, he made incrimi-

nating statements to his cellmate, who had been approached by the prosecution to

keep his “ear open” for such evidence. The cellmate later testified as to Ventris’s

incriminating statements, and Ventris was convicted. Ventris then appealed,

claiming this testimony violated his Sixth Amendment right to counsel. Although

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400 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

the district court’s decision was affirmed by the court of appeals, it was reversed

by the supreme court of Kansas, which held that “[w]ithout a knowing and volun-

tary waiver of the right to counsel, the admission of the defendant’s uncounseled

statements to an undercover informant who is secretly acting as a State agent

violates the defendant’s Sixth Amendment rights.” It must be noted that the cell-

mate had prompted Ventris to talk by stating to Ventris that he appeared to have

“something more serious weighing on his mind.” Hence, the incriminating state-

ment was deliberately elicited. Had the cellmate just kept an “ear open” as he was

told, passive listening would have not been a violation.

The U.S. Supreme Court, however, reversed and remanded that decision,

holding that the informant’s testimony, although concededly elicited in violation

of the Sixth Amendment, was admissible to challenge and impeach Ventris’s

inconsistent testimony at trial. The Court reasoned that the interests protected by

excluding “tainted evidence” are outweighed by the need to ensure “integrity of

the trial process.”

The Presumption of Effective Counsel The right to legal counsel means little if the counsel provided is ineffective. Powell v. Alabama (1932), discussed previously, was the first ineffective counsel case.

Understandably, what constitutes effective counsel can be debated, but

the Supreme Court has offered this guidance: “The proper measure of attorney

performance remains simply reasonableness under prevailing professional

CASE IN BRIEF

Kansas v. Ventris (2009)

ISSUE May a statement made without a valid waiver to the Sixth

Amendment right to counsel be

used to impeach a defendant?

RULING Yes. Such a state- ment made without a valid waiver

may be used in court, not as

evidence but to impeach the

credibility of the defendant.

The Sixth Amendment right to counsel pres umes counsel is eff ect ive.

Table 11.1 Key Cases Regarding Right to Counsel

Stage in criminal

justice process Case When suspect or defendant has a constitutional right to counsel

Investigation

Escobedo v. Illinois (1964) During any police interrogation and when the suspect requests counsel. The case can be

read broadly, as applied to any custodial interrogation, or narrowly, as limited to when the

suspect is the focus of investigation and when the suspect requests counsel before interrogation. Both interpretations are supported by the language in the opinion.

Miranda v. Arizona (1966) During any custodial interrogation to secure privilege against self-incrimination

Pretrial

Massiah v. United States (1964) Once adversary proceedings have begun against defendant

Brewer v. Williams (1977) Reaffirmed, once adversary proceedings have begun against defendant

United States v. Wade (1967) During pretrial postindictment lineup for identification

Moore v. Illinois (1977) During in-court identification at preliminary hearing following criminal complaint

Coleman v. Alabama (1970) During the preliminary hearing

Missouri v. Frye (2012) During the plea bargaining process

Moore v. Michigan (1957) When submitting a guilty plea to the court

Hamilton v. Alabama (1961) During the arraignment

Trial

Powell v. Alabama (1932) During a trial in a state capital case

Gideon v. Wainwright (1963) During a trial of an indigent defendant charged with a noncapital felony

Argersinger v. Hamlin (1972) During a trial when the defendant might be imprisoned, whether for a felony or a

misdemeanor

In re Gault (1967) During juvenile delinquency adjudication that may lead to commitment to a state institution

Sentencing Townsend v. Burke (1948) At the time of sentencing

Posttrial Douglas v. California (1963) During first appeal after conviction

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 401

norms. . . . The benchmark for judging any claim of ineffectiveness must be

whether counsel’s conduct so undermined the proper functioning of the adver-

sarial process that the trial cannot be relied on as having produced a just result”

(Strickland v. Washington, 1984). Strickland established a two-prong test to establish a claim of ineffective

counsel. Defendants must show (1) the counsel’s representation fell below an

objective standard of reasonableness, and (2) there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. Herring v. New York (1975) asserted, “The very premise of our adversary system of criminal justice is that partisan advocacy on both sides

of a case will promote the ultimate objective that the guilty be convicted and the

innocent go free.”

United States v. Cronic (1984) held that claims of ineffective counsel must point out specific errors of trial counsel and cannot be based on inferences drawn from

the defense counsel’s inexperience or lack of time to prepare, the gravity of the

charges, accessibility of witnesses to counsel, or the case’s complexity. Although

inexperience may not suffice as ineffective representation, failure to take normal

and routine steps before and during trial could.

Strickland was relied on in Wiggins v. Smith (2003), when the Court also held that the trial attorney must thoroughly investigate the life history of a defendant if there

is reason to believe it may affect the determination of the death penalty. Sixth

Amendment law regarding effective counsel continued to evolve in Missouri v. Frye (2012), when the Court held that part of effective assistance of counsel is for the

defense attorney to inform the defendant about formal and favorable plea offers.

This refinement emphasized the second part of the Strickland test, that the defen- dant must show a reasonable probability they would have accepted the plea offer

had they not received the deficient performance of counsel (i.e., the non-informing

of the plea offer).

If a lawyer has a conflict of interest by representing another client who would

prejudice the other, ineffective assistance of counsel would exist, but merely being

dissatisfied with the outcome of a trial is not itself sufficient grounds to make such

a claim. (Remember, 50 percent of the parties to a trial are unhappy with the

results!) Because the Strickland decision places the burden to prove ineffective rep- resentation on the claimant, few appeals on such grounds are successful.

Some falsely believe that public defenders assigned to defendants who cannot

afford their own lawyers are somehow less effective than private attorneys defen-

dants with money are capable of paying for, or that the more a lawyer costs, the

better the representation. Trial lawyers more often respect the skills of those who

choose to work as public defenders as well as their commitment to watch out for

their clients’ rights, regardless of their financial status. As with any other profes-

sionals, attorneys are motivated to specialize for a variety of reasons, and remu-

neration is second to their commitment to defending those in need.

Public defenders are employed by the government to ensure everyone’s Fifth

Amendment right to counsel is made available, particularly those who cannot

afford their own lawyer. Although many jurisdictions employ their own public

defenders, others appoint private practice lawyers who agree to take cases, thus

providing these clients with a private practice attorney. This situation occurred in

Gideon v. Wainwright, in which Abe Fortas, who later became a Justice on the Court,

MYTH If I lose my case, my attorney has

provided “ineffective assistance.”

REALITY Not necessarily. Mistakes or tacti-

cal errors are virtually “unchal-

lengeable.” It must be shown

that the conduct fell outside of

reasonably performance given all

of the circumstances.

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402 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

was appointed to represent indigent Clarence Gideon in what became a landmark

Sixth Amendment case.

Waiver of Sixth Amendment Right to Legal Counsel A suspect cannot be forced to deal with an attorney and so may waive this right. In

Johnson v. Zerbst (1938), the Supreme Court stated, “A waiver is ordinarily an inten- tional relinquishment or abandonment of a known right or privilege. The determi-

nation of whether there has been an intelligent waiver of right to counsel must

depend, in each case, upon the particular facts and circumstance surrounding that

case, including the background, experience and conduct of the accused” (Johnson v. Zerbst). See Figure 11.2 for a sample waiver.

Patterson v. Illinois (1988) held that a valid waiver of Miranda rights waives the Fifth Amendment right against self-incrimination and waives the Sixth Amend-

ment right to counsel. The requirements that a waiver be knowing and voluntary

remain the same. A court will consider the totality of circumstances regarding how

the waiver was obtained and the competency and age of the person, as well as

issues of intelligence, health, and ability to understand the language.

For a waiver to be effective, it need not be in writing, but whatever statement is

made by the suspect must show there was, in fact, an intentional relinquishment of

the known right.

To have the individual sign a waiver of the right to counsel is

tactically preferable. Additionally, a court will assess whether the

suspect was competent enough to waive any rights, for which the

totality of the circumstances surrounding the waiver will be exam-

ined, including education, intelligence, physical and mental con-

dition, language issues, and age.

The Right to Act as One’s Own Counsel Pro se is Latin meaning “for himself.”

With the complexity of the entire legal process, it is difficult

to understand how some people think themselves competent to

provide their own defense. However, some defendants distrust attorneys in gen-

eral or otherwise believe they can handle their defense adequately, or perhaps the

expense of hiring a lawyer compels some to defend themselves if they do not

qualify for legal aid.

Faretta v. California (1975) set forth three conditions to be met before a person could represent him or herself: (1) awareness of the right to counsel, (2) a valid

waiver of Sixth Amendment rights, and (3) competency. In Faretta, the Court held, “To force a lawyer on a defendant can only lead him to believe that the law con-

trives against him. Moreover, it is not inconceivable that in some rare instances,

the defendant might in fact present his case more effectively by conducting his

own defense.” An accused who represents him or herself cannot later claim inef-

fective counsel.

A waiver of one’s Sixth Amendment right to counsel must be voluntary, knowing, and intelligent.

pro se appearing in court without an attorney, representing

oneself

Individuals may app ear in court without att orneys, repres enting themselves , that is, pro se.

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 403

TRIAL WITHOUT A LAWYER Va. Code § 19.2-160 CASE NO ...............................................................

................................................................................................. General District Court

Juvenile and Domestic Relations District Court

Circuit Court

....................................................................................... v. ........................................................................................

WAIVER OF RIGHT TO BE REPRESENTED BY A LAWYER (CRIMINAL CASE)

I have been advised by a judge of this court of the nature of the charges in the cases pending against me and

the potential punishment for the offenses, which includes imprisonment in the penitentiary or confinement in jail. I

understand the nature of these charges and the potential punishment for them if I am found to be guilty.

I have been further advised by a judge of this court that I have the following rights to be represented by a

lawyer in these cases:

a. I have a right to be represented by a lawyer.

b. If I choose to hire my own lawyer, I will be given a reasonable opportunity to hire, at my expense, a lawyer

selected by me. The judge will decide what is a reasonable opportunity to hire a lawyer. If I have not hired a

lawyer after such reasonable opportunity, the judge may try the case even though I do not have a lawyer to

represent me.

c. If I ask the judge for a lawyer to represent me and the judge decides, after reviewing my sworn financial

statement that I am indigent, the judge will select and appoint a lawyer to represent me. However, if I am

found to be guilty of an offense, the lawyer's fee as set by the judge within statutory limits will be assessed

against me as court costs and I will be required to pay it.

I understand these rights to be represented by a lawyer. I understand the manner in which a lawyer can be of

assistance and I understand that, in proceeding without a lawyer, I may be confronted with complicated legal

issues. I also understand that I may waive (give up) my rights to be represented by a lawyer.

Understanding my rights to be represented by a lawyer as described above and further understanding the

nature of the case and the potential punishment if I am found to be guilty, I waive all of my rights to be represented

by a lawyer in these cases, with the further understanding that the cases will be tried without a lawyer either being

hired by me or being appointed by the judge for me. I waive these rights of my own choice, voluntarily, of my own

free will, without any threats, promises, force or coercion.

ADULT

Upon oral examination, the undersigned judge of this Court finds that the Adult, having been advised of the

rights and matters stated above and having understood these rights and matters, thereafter has knowingly,

voluntarily and intelligently waived his rights to be represented by a lawyer.

.............................................................................. DATE JUDGE

CASE NO. ..............................................................

Figure 11.2 Waiver of Right to Counsel

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404 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Juveniles and the Sixth Amendment The juvenile justice system was briefly introduced in Chapter 2. In re Gault (1967) established that the Constitution applied to juveniles as well as to adults. Del

Carmen and Trulson (2006, p. 253) state, “In re Gault is the most important case ever decided by the U.S. Supreme Court in juvenile justice because it signaled a shift

from the pure parens patriae model in juvenile justice (where juveniles did not have any constitutional right during adjudication) to a due process model (where

juveniles are given certain constitutional rights) . . . including the rights against self-

incrimination, reasonable notice of the charges, to confront and cross-examine

witnesses and the right to counsel.”

Research shows juveniles are not appointed legal counsel in all cases, despite

the Supreme Court in Gault stating, “We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine

delinquency which may result in commitment to an institution in which the juve-

nile’s freedom is curtailed, the child and his parents must be notified of the child’s

right to be represented by counsel retained by them, or if they are unable to afford

counsel, that counsel will be appointed to represent the child.” Admittedly, juvenile

courts have broad discretion, and such terms as institutionalization are not as easily interpreted as are terms in the adult system. In re Gault applied Sixth Amendment rights to juveniles, with some areas of application remaining to be addressed by the

Court. One may anticipate further direction occurring as the Supreme Court

addresses them.

The Sixth Amendment and Corrections Like the Fifth Amendment, the Sixth Amendment is not frequently cited in prison-

ers’ rights lawsuits.

Often detainers are filed against inmates who have other criminal

charges pending against them, ensuring their appearance before the

prosecuting jurisdiction for the next trial once their current sentence is

complete. For example, in Smith v. Hooey (1969) an inmate in a federal institution had state criminal charges pending against him in Texas. He

spent six years trying to get his trial, but the detainer process caused

the delay.

Other cases regarding right to counsel involve those on probation. Mempa v. Rhay (1967) held that a convicted offender has the right to assistance of counsel at probation revocation hearings in which the sentence has been deferred. Gagnon v. Scarpelli (1973) held that probationers and parolees have a constitutionally limited right to counsel on a case-by-case basis at revocation proceedings.

In re Gault app lied Sixth Amendment rights to juveniles , including the right against self- incrimination, to rec eive not ice of the charges , to confr ont and cross- examine witness es , and the right to counsel.

For prisoners, cases based on the Sixth Amendment involve the right to a speedy trial and the det ainer problem.

detainer document filed against inmates who have other

criminal charges pending against

them

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 405

Summary The Sixth Amendment requires a speedy and public

trial. Whether a trial is sufficiently “speedy” is deter-

mined by (1) the length of the delay, (2) the reason for

the delay, (3) the defendant’s assertion of this right,

and (4) the harm caused (Barker v. Wingo). The Sixth Amendment also requires that the trial occur in the

district in which the crime was committed and that

defendants have the right to an impartial and repre-

sentative jury.

The right to counsel is the only Sixth Amendment

guarantee that extends beyond the trial. Denying

legal counsel for a defendant at trial is a denial of due

process (Powell v. Alabama). Gideon v. Wainwright established that indigent defendants are to be pro-

vided lawyers when faced with a “deprivation of

liberty.” In 1972 in Argersinger v. Hamlin, the Court extended the right to an attorney to defendants

accused of misdemeanor offenses. Any time the pen-

alty could include prison, the defendant must have

access to a lawyer. When police inquiry has begun to

focus on a particular suspect, custodial interrogation

at the police station entitles a suspect to legal repre-

sentation when requested (Escobedo v. Illinois). The Sixth Amendment right to legal counsel

occurs at every critical stage of a criminal proceed-

ing, including during the investigation, during

custodial interrogation, and postindictment interro-

gation, during postindictment identification, at

arraignment, at hearings, during the trial, and at

sentencing. After a defendant has been charged with

a crime and retained an attorney, that attorney must

be present during any subsequent questioning. In

the Wade-Gilbert rule, the Supreme Court held that pretrial lineups conducted after charging (post-

indictment) invoke Sixth Amendment protection

and require that the suspect have a lawyer. Lineups

may not be arranged in such a manner as to make

the defendant stand out from the others in any

unnecessarily suggestive ways. Preindictment

(before being formally charged) identification proce-

dures are not critical stages of criminal proceedings, so there is no Sixth Amendment right to a lawyer.

The court will view pretrial identification proce-

dures in the totality of circumstances when deter-

mining whether they were constitutional. Any

hearing or trial through the first appeal invokes the

Sixth Amendment right to counsel, but the right

does not extend to any additional appeals.

The Sixth Amendment right to counsel presumes

counsel is effective. A waiver of one’s Sixth Amend-

ment right to counsel must be voluntary, knowing,

and intelligent. Individuals may appear in court

without attorneys, representing themselves, that is,

pro se. In re Gault applied Sixth Amendment rights to juveniles, including the right against self-incrimina-

tion, to receive notice of the charges, to confront and

cross-examine witnesses, and the right to counsel.

Finally, for prisoners, cases based on the Sixth

Amendment involve the right to a speedy trial and

the detainer problem.

Discussion Questions 1. Does having a lawyer present during a trial ensure

fairness?

2. Why would people want to represent themselves in court pro se? Would you think more or less of those representing themselves? Why?

3. Define deliberately elicit. When does that standard come into play?

4. When has the line been crossed between a public trial at which the media are present and a “trial by the media”? Could this problem ever justify barring the media from attending trials? Does the media ever have that much influence on the public or jurors?

5. Why would someone choose to be a defense attorney? A prosecutor?

6. Do public defenders provide less effective defense than would a private attorney? What might a private attorney with a wealthy client be capable of that a public defender with an indigent client would not?

7. Why is the adversary system of law a necessity to produce just results?

8. Why could one attorney not represent both sides in a trial by providing objective facts?

9. Does the adversary system today encourage, or even demand, that attorneys represent their clients “too vigorously”?

10. What is a critical stage? What importance does that point in time have on a defendant’s rights?

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406 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

References Bacigal, Ronald J. Criminal Law and Procedure: An

Introduction. St. Paul, MN: West Publishing Company, 1996.

del Carmen, Rolando V., and Trulson, Chad R. Juvenile Justice, The System, Process, and Law. Belmont, CA: Thomson Wadsworth Publishing, 2006.

Ferdico, John N.; Fradella, Henry F.; and Totten, Christopher D. Criminal Procedure for the Criminal Justice Professional, 10th ed. Belmont, CA: Wadsworth/Cengage Learning, 2009.

Gaertner, Susan, and Harrington, John. “Successful Eyewitness Identification Reform: Ramsey County’s Blind Sequential Lineup Protocol.” The Police Chief, April 2009, pp. 130–141.

Mecklenburg, Sheri H.; Larson, Mark R.; and Bailey, Patricia J. “Eye Witness Identification: What Chiefs Need to Know Now.” The Police Chief, October 2008, pp. 68–81.

Modafferi, Peter A.; Corley, Mike; and Perkins, Chris. “Eyewitness Identification: Views from the Trenches.” The Police Chief, October 2009, pp. 78–87.

Rutledge, Devallis. “Right to Counsel.” Police, February 2006, pp. 70–72.

Rutledge, Devallis. “Pointing the Right to Counsel.” Police, August 2008, pp. 74–75.

Rutledge, Devallis. “Sixth Amendment Waivers.” Police, August 2009, pp. 62–64.

Schuck, Jason. “Eyewitness Identifications: Determining the Admissibility.” LawOfficer.com. April 24, 2009. Retrieved June 18, 2013, from www.lawofficer.com/article/needs-tags-columns/ eyewitness-identifications.

Shapiro, Ari. “Justice Department to Launch Indigent Defense Program.” NPR, February 26, 2010. Retrieved June 18, 2013, from www.npr.org/ templates/story/story.php?storyId=124094017.

“Star Chamber, Court of.” Microsoft Encarta Online Encyclopedia, 2000.

NOTE: The Runaway Jury by John Grisham presents a fictionalized look at jury selection and manipulation that may be of interest to you.

Cases Cited Argersinger v. Hamlin, 407 U.S. 25 (1972) Baldwin v. New York, 399 U.S. 66 (1970) Ballew v. Georgia, 435 U.S. 223 (1978) Barker v. Wingo, 407 U.S. 514 (1972) Batson v. Kentucky, 476 U.S. 79 (1986) Betts v. Brady, 316 U.S. 455 (1942) Blockburger v. United States, 284 U.S. 299 (1932) Brady v. Maryland, 373 U.S. 83 (1963) Brewer v. Williams, 430 U.S. 387 (1977) Briscoe v. Virginia, 559 U.S. ___ (2010) Bullcoming v. New Mexico, 564 U.S. ____ (2011) Codispoti v. Pennsylvania, 418 U.S. 506 (1974) Coleman v. Alabama, 399 U.S. 1 (1970) Coy v. Iowa, 487 U.S. 1012 (1988) Crawford v. Washington, 541 U.S. 36 (2004) Davis v. Washington, 547 U.S. 813 (2006) Douglas v. California, 372 U.S. 353 (1963) Duncan v. Louisiana, 391 U.S. 145 (1968) Escobedo v. Illinois, 378 U.S. 478 (1964) Estes v. Texas, 381 U.S. 532 (1965) Faretta v. California, 422 U.S. 806 (1975) Foster v. California, 394 U.S. 440 (1969) Gagnon v. Scarpelli, 411 U.S. 778 (1973) Gannett Co. v. DePasquale, 442 U.S. 368 (1979) Gideon v. Wainwright, 372 U.S. 335 (1963) Gilbert v. California, 388 U.S. 263 (1967) Glasser v. United States, 315 U.S. 60 (1942) Halbert v. Michigan, 545 U.S. 605 (2005)

Hamilton v. Alabama, 368 U.S. 52 (1961) Harris v. South Carolina, 338 U.S. 68 (1949) Herring v. New York, 422 U.S. 853 (1975) In re Gault, 387 U.S. 1 (1967) Johnson v. Dugger, 817 F.2d 726 (11th Cir. 1987) Johnson v. Zerbst, 304 U.S. 458 (1938) Kansas v. Ventris, 556 U.S. 586 (2009) Kirby v. Illinois, 406 U.S. 682 (1972) Maryland v. Craig, 497 U.S. 836 (1990) Massiah v. United States, 377 U.S. 201 (1964) McNeil v. Wisconsin, 501 U.S. 171 (1991) Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) Mempa v. Rhay, 389 U.S. 128 (1967) Michigan v. Bryant, 562 U.S. 131 (2011) Michigan v. Harvey, 494 U.S. 344 (1990) Michigan v. Jackson, 475 U.S. 625 (1986) Minnick v. Mississippi, 498 U.S. 146 (1990) Miranda v. Arizona, 384 U.S. 436 (1966) Missouri v. Frye, 566 U.S. ____ (2012) Montejo v. Louisiana, 556 U.S. ___ (2009) Mooney v. Holohan, 294 U.S. 103 (1935) Moore v. Illinois, 434 U.S. 220 (1977) Moore v. Michigan, 355 U.S. 155 (1957) Neil v. Biggers, 409 U.S. 188 (1972) Nix v. Williams, 467 U.S. 431 (1984) Patterson v. Illinois, 487 U.S. 285 (1988) Perry v. New Hampshire, 565 U.S. ____ (2012) Powell v. Alabama, 287 U.S. 45 (1932)

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Chapter 11 The Sixth Amendment: Right to Counsel and a Fair Trial 407

Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) Rawlins v. Georgia, 201 U.S. 638 (1906) Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) Scott v. Illinois, 440 U.S. 367 (1979) Smith v. Hooey, 393 U.S. 374 (1969) Snyder v. Louisiana, 552 U.S. 472 (2008) Spano v. New York, 360 U.S. 315 (1959) Stovall v. Denno, 388 U.S. 263 (1967) Strauder v. West Virginia, 100 U.S. 303 (1879) Strickland v. Washington, 466 U.S. 668 (1984)

Swain v. Alabama, 380 U.S. 202 (1965) Taylor v. Louisiana, 419 U.S. 522 (1975) Texas v. Cobb, 532 U.S. 162 (2001) Townsend v. Burke, 334 U.S. 736 (1948) United States v. Cronic, 466 U.S. 648 (1984) United States v. Henry, 447 U.S. 264 (1980) United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969) United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) United States v. Wade, 388 U.S. 218 (1967) Wiggins v. Smith, 539 U.S. 510 (2003)

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408

CHAPTER 12

Excess ive bail shall not be required, nor excess ive fi n es imposed, nor cruel and unusual punishment infl ict ed.

—Eighth Amendment to the U.S. Constitution

The Eighth Amendment Bail, Fines, and Punishment

The death penalty is a topic of much controversy, with opponents arguing it is a blatant violation of

the Eighth Amendment protection from cruel and unusual punishment. The Supreme Court,

however, has held that government-sanctioned execution for specific capital crimes is not, in itself,

unconstitutional, although the manner in which it is applied has been extensively examined. Lethal

injection, the most common form of execution in the United States, is considered by some to be the

only politically correct method of capital punishment.

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 409

Introduction The Eighth Amendment protects three rights, one that applies

before trial, and the other two after a person has been convicted of

a crime.

Not unlike other brief amendments, this particular one has

found itself embroiled in controversy because of interpretations

about other punishments the government can carry such as fines

and, most particularly, about whether the death penalty is cruel

and unusual. This chapter challenges you to contemplate your

Do You Know . . .

Can You Define? asset forfeiture

bail

bifurcated trial

commercial bail

compensatory

damages

corporal punishment

preventive detention

proportionality

analysis

punitive damages

ROR

■ What three rights are protected by the Eighth Amendment?

■ What purposes bail serves?

■ If the Eighth Amendment guarantees the right to bail? If it applies to

the states?

■ What the Bail Reform Act of 1984 established?

■ What case attempted to define excessive bail and what it

established as excessive?

■ If the prohibition against excessive bail applies to the states?

excessive fines?

■ What may be seized under asset forfeiture laws?

■ What restriction is placed on the amount that can be seized through

forfeiture?

■ Where the meaning of “cruel and unusual punishment” comes from?

■ What the general rule under the Eighth Amendment regarding

punishments is?

■ Whether a juvenile convicted of a nonhomicide crime may be

sentenced to life in prison?

■ Whether capital punishment has been found to be constitutional?

the precedent cases?

■ What is required of proceedings that may involve the death penalty?

■ Under what age most states do not consider capital punishment for

a juvenile?

■ Whether the mentally retarded can be executed?

■ What Eighth Amendment rights prisoners often claim?

The three rights prot ect ed by the Eighth Amendment are

■ That excess ive bail shall not be required.

■ That excess ive fi n es shall not be imposed.

■ That cruel and unusual pun- ishment shall not be infl ict ed.

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410 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

perspective about the death penalty. Who does society deem appropriate to put to

death? Should this include the mentally ill, mentally retarded, and juveniles? How

is this ultimate punishment to be carried out? By electrocution, hanging, or firing

squad? In an amendment such as this one, every American is challenged to con-

sider whether the ends do justify the means because why the law exists is as impor-

tant as how it is enforced.

This area of the law is not the only area the high court has been called on to

address regarding the Eighth Amendment. For example, what do the terms cruel and unusual mean as they relate to bail and fines? How is excessive defined? With the U.S. Constitution more than two centuries old, can modern standards even

begin to match the framers’ original constitutional intent?

This chapter begins with a brief history of punishment, followed by a discus-

sion of bail and fines. Next the issue of what constitutes cruel and unusual

punishment is explored, including an in-depth examination of capital punish-

ment. The chapter concludes with a look at how the Eighth Amendment affects

corrections.

A Brief History of Punishment If you found the processes of institutions such as the Star Chamber and the Inquisi-

tion revolting, the means by which punishment has been inflicted over the history

of the world is, at the least, as horrific. This description applies to medieval tortures

we like to think the modern world is incapable of committing as well as to public

humiliation, branding, amputation, and a host of other almost unthinkable means

of enforcing the law.

Recognizing a need to somehow ensure human rights, the Massachusetts Body

of Liberties, enacted in 1641, provided a right to bail and prohibited cruel and inhu-

mane punishment. The idea of being held in prison for an indefinite time without

any opportunity for even temporary release was an abhorrent thought to those who

knew how restrictive government could be.

The Massachusetts Bay Colony, founded by the Puritans, sought to eliminate

such English punishments as cutting off hands and burning at the stake. The Body

of Liberties allowed the death penalty for religious offenses such as blasphemy but

not for burglary and robbery, which were capital crimes in England. Society itself

determined and continues to decide the boundaries of reasonable and unreasonable

punishment.

As the colonies considered versions of what was to become the Eighth

Amendment, the prohibition on the way things had been done stirred debate, with

one representative declaring, “It is sometimes necessary to hang a man, villains

often deserve whipping, and perhaps having their ears cut off, but are we in the

future to be prevented from inflicting these punishments because they are cruel?”

(Monk, n.d., p. 173).

In a sense, the correctional system itself speaks to Eighth Amendment and

other constitutional issues overall. Our legal system reflects norms but cannot by

design change overnight. We would not want it changed on a whim or as a result

of politics. Instead, our criminal justice system is responsive, not reactive, to social

changes. In Trop v. Dulles (1958), Chief Justice Earl Warren observed, “The basic

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 411

concept underlying the Eighth Amendment is nothing less than the dignity of

man. . . . The amendment must draw its meaning from the evolving standards of

decency that mark the progress of a maturing society.”

As has been the case with correctional changes brought on by research, the civil

rights movement, and different beliefs in how people should be treated and held

accountable, Eighth Amendment law has continued to develop to reflect U.S.

beliefs, including the tenets of punishment itself.

Bail The first part of the Eighth Amendment deals with granting bail to individuals

accused of crimes. Bail is actually a verb and a noun, dealing with pretrial release. Bail is the act of pretrial release of a defendant whose promise to return to trial

is secured by some form of collateral, most often money, which is also referred to

as bail. Bail also allows individuals time to prepare a defense and to continue earning

income if employed. Only excessive bail is prohibited by the Constitution. Bail itself is not guaranteed, and the Eighth Amendment has never been

fully incorporated under the Fourteenth Amendment to apply to

the states. Although portions of the Eight Amendment have been

incorporated, such as the right to be free from cruel and unusual

punishment (Louisiana ex rel. Francis v. Resweber, 1947), the Court has not, to date, decided whether the Eighth Amendment’s prohi-

bition of excessive fines or bail applies to the states through the

Due Process Clause (Browning-Ferris Industries v. Kelco Disposal, 1989). The right to bail has historically been assumed through case

law and statutory law rather than a constitutional guarantee.

Bail may be denied in capital cases (those involving the death

penalty) and when the accused has threatened possible trial wit-

nesses. Also, the amount of bail does not have to be something the

accused can pay. Some poor people cannot afford any bail and

must stay in jail, thus generating debate over whether the system

caters to those with money while discriminating against those

without resources. State law varies on whether juveniles may be

eligible for release on bail.

The Evolution of Legislation and Case Law on Bail

Although bail as an option has been determined legislatively and through common

law, a progression of federal laws has forged codified bail law. (Note the change in

emphasis of this law and who the law is primarily seeking to protect.) The Judiciary

Act of 1789 provided for bail in noncapital crimes.

The Bail Reform Act of 1966

The Bail Reform Act of 1966 helped indigent defendants who were unable to post

bail in the usual monetary manner. This law was enacted to ensure that poor

bail money or property pledged by a defendant for pretrial

release from custody that would

be forfeited should the defendant

fail to appear at subsequent court

proceedings

MYTH Anyone arrested is guaranteed bail.

REALITY Not true. The Eighth Amendment

only proscribes excessive bail. It

does not guarantee bail is avail-

able everyone.

Bail serves two purposes . First, it helps ensure the app earance of the accused at court proceedings. Sec ond, it maintains the pres umption of innocence by allowing individuals not yet convict ed of a crime to avoid continued incarceration.

The Constitution does not guarantee a right to bail; it only prohibits excess ive bail, wh ich it does not defi ne. The Eighth Amendment does not app ly to the states .

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412 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

defendants would not remain in jail only because they could not afford bail, as well

as to require judges to consider other ways for defendants to guarantee their return

for trial. The Bail Reform Act of 1966 allowed judges to consider the defendant’s

background, family ties, and prior record in setting bail. Under this comprehensive

statute, the primary bail condition was for defendants to be released on their own

recognizance, or ROR, which means the court trusts them to appear in court when

required. Some jurisdictions refer to this bail condition as RPR, released on personal

recognizance. No bail money is required. Criteria for ROR vary from state to state

but usually include the person’s residential stability, a good employment record,

and no previous convictions.

The Bail Reform Act of 1984

The Bail Reform Act of 1984 (18 U.S.C. §3141) granted judicial authority to include

specific conditions of release for the community’s safety. It also eliminated a pre-

sumption in favor of pretrial release through the bail process, allowing a court to

deny bail for defendants when the prosecution is able to demonstrate, during a

hearing, clear and convincing evidence that no conditions will reasonably ensure

the community’s safety.

The Bail Reform Act requires federal government to assume the accused would

be released and to seek the least restrictive means of detention plausible. These

could include outright release or several other options including bail, electronic

monitoring, halfway-house placement, collateral property, third-party custody, sur-

rendering one’s passport, and imposing travel restrictions.

This act also allowed federal courts to deny bail on the basis of danger to the

community or of risk to not appear at trial. Known as preventive detention, this

practice authorized judges to predict the probability of future

criminal conduct by those accused of serious offenses and deny

bail on those grounds.

In Jackson v. Indiana (1972), the Supreme Court ruled that the government may detain dangerous defendants who may be

incompetent to stand trial, and in Addington v. Texas (1979), the Court ruled that the government may detain mentally

unstable individuals who present a public danger. However, the

Jackson Court made clear that these individuals are no less

deserving of due process hearings.

Opponents of preventive detention argue that the accused is being punished

without trial and that protecting the community is the job of the police, not the pur-

pose of bail. A few months after passage of the Bail Reform Act, in United States v. Hazzard (1984), the Supreme Court held that Congress was justified in denying bail to offenders who represent a danger to the community. The Court also upheld

preventive detention in United States v. Salerno (1987), stating that pretrial deten- tion under this act did not violate due process or the Eighth Amendment. In this

case, the government charged Anthony Salerno with 29 counts of racketeering and

conspiracy to commit murder. The Court ruled that because the Bail Reform Act

contained many procedural safeguards, the government’s interest in protecting

the community outweighed the individual’s liberty. Strongly dissenting to the

Salerno majority opinion was Justice Thurgood Marshall, who said, “It is a fair

ROR released on their own recognizance; no bail money is

required

preventive detention the right of judges to consider the

potential criminal conduct of

those accused of serious

offenses and deny bail on

those grounds

The Bail Reform Act of 1984 es tablished the practice of preventive det ention for individuals deemed a threat to societ y or likely to fl ee, as well as ot her options to incarceration.

MYTH Bail is only in place to assure

someone shows up to court.

REALITY Although initially this was the

purpose of bail, it has been

extended to protecting the com-

munity at large from the acts of

the defendant.

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 413

summary of history to say that the safeguards of liberty have frequently been

forged in controversies involving not very nice people. Honoring the presumption

of innocence is often difficult; sometimes we must pay substantial social costs as a

result of our commitment to the values we espouse. But at the end of the day the

presumption of innocence protects the innocent; the shortcuts we take with those

whom we believe to be guilty injure only those wrongfully accused and, ulti-

mately, ourselves.”

Throughout the world today there are men, women, and children interned

indefinitely, awaiting trials that may never come or that may be a mockery of the

word, because their governments believe them to be “dangerous.” Our Constitu-

tion, whose construction began two centuries ago, can shelter us forever from the

evils of such unchecked power. Over two hundred years it has slowly, through our

efforts, grown more durable, more expansive, and more just. But it cannot protect

us if we lack the courage and the self-restraint to protect ourselves.

Nonetheless, several states have incorporated elements of preventive detention

into their bail systems, for example, excluding certain crimes from eligibility,

including crime control factors in release decisions and limiting the right to bail for

defendants previously convicted or for those alleged to have committed crimes

while on release.

The leading case for bail law is Stack v. Boyle (1951), which is interesting for reasons that include the time the case was heard. In Stack, the defendants were charged with advocating the violent overthrow of the government during the Cold

War, when there was great concern over the threat of communism. In this case, the

Supreme Court held that any amount exceeding that necessary to ensure a return

to trial violated the Eighth Amendment. Judicial calculation of the appropriate

amount would consider such matters as the seriousness of the offense and the cor-

responding threat to community safety, the government’s evidence, the defendant’s

connection with the community and family, finances, mental condition, criminal

record, and any history of failing to appear when released on bail. Justice Fred Vin-

son stated in the Court’s opinion,

From the passage of the Judiciary Act of 1789, to the present . . . federal law has

unequivocally provided that a person arrested for a non-capital offense shall be

admitted to bail. This traditional right to freedom before conviction permits the

unhampered preparation of a defense, and serves to prevent the infliction of

punishment prior to conviction. . . . Unless this right to bail before trial is pre-

served, the presumption of innocence, secured only after centuries of struggle,

would lose its meaning.

The right to release before trial is conditioned upon the accused’s giving

adequate assurance that he will stand trial and submit to sentence if found

guilty. . . . Like the ancient practice of securing the oaths of responsible persons

to stand as sureties for the accused, the modern practice of requiring a bail bond

or the deposit of a sum of money subject to forfeiture serves as additional assur-

ance of the presence of an accused.

In the private bail bonding business, a bail bond provider posts a bond for

upward of 10 percent of the bail amount with the court, to be paid if the defendant

fails to appear. This process is called commercial bail. The bail bond provider will

post a person’s bond for a fee, in effect making a loan but in a situation that

commercial bail using the services of a bail bond person to

post a defendant’s bail for a fee

CASE IN BRIEF

United States v. Salerno (1987)

ISSUE Is pretrial deten- tion under the Bail Reform Act

unconstitutional when based

on a potential threat to the

community?

RULING No. If government meets the heavy burden to

demonstrate that someone is

potentially dangerous, and if the

denial of bail is not punitive, then

pretrial detention is constitutional.

CASE IN BRIEF

Stack v. Boyle (1951)

ISSUE Is bail set at a higher level than is necessary to secure

the defendant’s appearance in

court constitutional?

RULING No. The amount set for bail to assure appearance

must be based on each individual

and the facts of the case.

Bail set at a fi gure higher than an amount reasonably calculated to fulfi ll its purpose is excess ive under the Eighth Amendment (Stack v. Boyle, 1951).

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414 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

traditional financial institutions may well avoid. If the accused fails to appear in

court as ordered, the bail bond provider will often help the police catch the person

because the bond company would lose its money. In some states, in fact, bail bond

providers and others in the private sector have significant authority to locate “bail

jumpers” and bring them before the court.

One issue is who can afford to have bail posted for them or, more importantly,

who cannot. This issue is why alternatives have been advocated and accepted,

including in appropriate circumstances, release of defendants on their own recog-

nizance if there is sufficient cause to believe their return to

court need not be in issue.

The Court specifically held in Salerno (1987) that pretrial detention without bail does not violate either due process or

the Eighth Amendment rights of a defendant. Therefore, even

after Salerno, state courts are free to forbid preventive detention of state and local prisoners based on excessive bail provisions

in the state constitution or through legislation or case law in

that jurisdiction.

Fines After the accused is convicted of a crime, the Eighth Amendment also prohibits

punishment by excessive fines. The question then becomes, what is excessive? For

example, should the wealthy be fined at a rate concurrent with their financial sta-

tus? Should the government not be permitted to punish through high fines, perhaps

as an alternative to imprisonment? Until recently, there have been comparatively

few cases in this area of constitutional law. Some of these cases have addressed

whether there can be excessive fines in civil cases.

The Court has continued to uphold the rule that the Constitution regulates gov-

ernment, and because civil cases are, for the most part, between private parties, the

excessive fine prohibition does not apply in the civil area. Browning-Ferris Industries v. Kelco Disposal (1989) questioned whether the Eighth Amendment applied to civil punishments as well as criminal punishments. In criminal law, the government is

always involved as a party to the case.

In civil lawsuits, the plaintiff usually seeks monetary damages from the defen-

dant to right an alleged wrong. Compensatory damages reimburse, or compensate,

the plaintiff for actual harm done, such as medical expenses or lost business. Cases

that have questioned the amounts awarded have primarily dealt with punitive dam-

ages, an amount the defendant in a civil case must pay the plaintiff beyond compen-

satory damages. Punitive damages are meant to be just that, additional punishment

to the wrongdoer and a warning to others not to engage in similar conduct.

In Browning-Ferris Industries, the Supreme Court ruled that the Eighth Amend- ment applied to criminal cases and to “direct actions initiated by the government to

inflict punishment.” Punitive damages in civil cases did not involve government

actions, the Court said, so the Eighth Amendment did not apply. The Court noted

that although it agreed that punitive damages advance the interest of punishment

and deterrence, which are also among the interests advanced by criminal law, it

failed to see how this overlap required that the excessive fines clause be applied in

cases between private parties.

compensatory damages reimbursement to the plaintiff

for actual harm done, such as

medical expenses or lost

business

punitive damages fines above and beyond the actual

economic loss to punish the

defendant in a civil trial

The excess ive bail prohibition has never been formally incorporated to app ly to the states under the Fourteenth Amendment, allowing states to deal with it through their constitutions, legislation, and case law.

The prohibition against excess ive fi nes has not been incorporated, so it does not app ly to the states .

CASE IN BRIEF

Browning-Ferris Industries v.

Kelco Disposal (1989)

ISSUE Does the Excessive Fines Clause of the Eighth

Amendment apply to a civil-jury

award of punitive damages?

RULING No. The Eighth Amendment does not apply to

awards in cases between private

parties. It restricts only those

fines directly imposed by and

paid to the government.

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 415

Asset Forfeiture and the Prohibition against Excessive Fines

An area receiving increasingly significant attention is asset forfeiture, the uncom-

pensated government seizure of money and property connected with illegal activ-

ity. The use of asset forfeiture by law enforcement has become a means by which a

great deal of funding is acquired for prevention programs and equipment. State

and federal laws have granted police departments and federal law enforcement the

authority to seize and forfeit assets and to receive the proceeds from such activities:

“The frustration of being asked to do more with less is multiplied when police see

the resources available to criminals. Illegal activities generate huge amounts of

untaxed incomes, and criminals may flaunt gains with an extravagant lifestyle

while reinvesting in their criminal enterprises. Although primarily designed to

weaken criminal organizations by striking at their economic foundation, as an

ancillary effect these laws have allowed police departments to generate revenue

from the seized assets” (Petrocelli, 2010, p. 22).

The U.S. Marshals Service administers the Department of Justice’s Asset

Forfeiture Program by managing and disposing of properties seized and for-

feited by federal law enforcement agencies and U.S. attorneys nationwide. The

three goals of the program are (1) enforcing the law, (2) improving law enforce-

ment cooperation, and (3) enhancing law enforcement through equitable

revenue sharing. Currently, the U.S. Marshals manage almost $2.4 billion worth

of property (“Asset Forfeiture,” 2012). In fiscal year 2011, the Treasury Forfei-

ture fund had earned revenue of more than $988 million (Treasury Forfeiture Fund, 2013).

Forfeited assets must be used to further a department’s crime-

fighting mission. This includes purchasing equipment, paying

overtime, improving police facilities, conducting training, build-

ing detention facilities, and conducting Drug Abuse Resistance

Education (D.A.R.E.) programs. Problems for which forfeiture

might be a remedy include illegal drug markets, nuisance proper-

ties, street racing, drunk driving, drivers with revoked licenses,

and prostitution (Worrall, 2009).

Although forfeiture is considered a civil action initiated by the

government and not a criminal action per se, the high court has

recognized it as an area subject to the Eighth Amendment because

forfeiture “constitutes payment to a sovereign as punishment for

some offense . . . and, as such, is subject to the limitations of the

Eighth Amendment’s Excessive Fines Clause” (Austin v. United States, 1993). Other constitutional questions forfeiture law raises are whether it constitutes cruel and unusual punishment, double

jeopardy, and a denial of due process.

In Austin, the defendant pled guilty to selling two grams of cocaine, valued at $200, and the government seized property belonging to him (including his busi-

ness) that netted a profit to the government of $32,000. The Supreme Court unani-

mously ruled that the Eighth Amendment prohibition against excessive fines

applies to civil forfeiture proceedings against property connected to drug traffick-

ing. They held that the amount seized by the forfeiture must bear some relation to

asset forfeiture the seizure by the government, without

compensation, of money and

property connected with illegal

activity

Property connect ed with illegal activity may be forfeited wh en used as a “conveyance” (including aircraft, ships, and mot or vehicles ) to transport illicit drugs. Real es tate used in ass ociation with a crime and money or ot her negot iable instruments obtained through criminal activity also can be seized, and such seizure is considered a civil sanction by the government.

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416 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

the value of the illegal enterprise under the Eighth Amendment prohibition on

excessive fines. This decision is the first constitutional limitation on the govern-

ment’s power to seize property connected with illegal activity and could result in

challenges to seizures related to criminal activity.

In United States v. Bajakajian (1998), the Court ruled that a $357,144 forfeiture for failing to report to U.S. Customs that more than $10,000 was being taken out of the

country was “grossly disproportionate” to the offense.

The Supreme Court held in United States v. Ursery (1996) that forfeiture is not double jeopardy because it is considered a civil sanction rather than an additional

criminal action. Due process requires that property not be forfeited without a hear-

ing (United States v. Good, 1993), but the Court has also held that forfeiture is consti- tutional even when the owner is not aware of its criminal use. In Bennis v. Michigan (1996), Mrs. Bennis argued it was unconstitutional for the government to seize a car

of which she was part owner. Her husband was using it when he was arrested for

engaging in prostitution, even though she had no knowledge of the crime. In disal-

lowing her claim, the Court referred to “a long and unbroken line of cases in which

this Court has held that an owner’s interest in property may be forfeited by reason

of the use to which the property is put even though the owner did not know that it

was to be put to such use.”

In 2000 Congress approved the Civil Asset Forfeiture Reform Act, curbing

federal law enforcement agencies’ asset forfeiture authority and adding due pro-

cess protections to ensure that property is not unjustly taken from innocent own-

ers. Shortly before the approval, Rep. Henry J. Hyde (R-IL) commented, “Civil

asset forfeiture as allowed in our country today is a throwback to the old Soviet

Union, where justice is the justice of the government and the citizen did not have

a chance.” In forfeiture cases, the government must establish that the property

was subject to forfeiture by a “preponderance of the evidence” rather than the

original higher standard of “clear and convincing.” The statute of limitations is

five years.

Cruel and Unusual Punishment The final clause of the Eighth Amendment forbids punishments that are “cruel and

unusual,” but it does not say what those punishments are. What is cruel and

unusual?

The easy answer, which is also the correct one, is that cruel and unusual pun-

ishment depends on what a society believes it to be. Just as our previous definition

of law includes the idea that law supports the society’s current norms, how a

society punishes offenders is also directly related to current

acceptable norms.

In Trop, the Supreme Court restored a soldier ’s citizenship he had lost as a result of being found guilty of desertion from the

army, finding the punishment too extreme. As Justice Marshall

noted in a later case, “A penalty that was permissible at one time

in our nation’s history is not necessarily permissible today.”

Thus, common punishments during the 1790s, such as whip-

pings and pillories, are no longer constitutional in the twenty-

first century.

CASE IN BRIEF

Austin v. United States, 1993

ISSUE Does the Excessive Fines Clause apply to asset

forfeitures?

RULING Yes. Because the Eighth Amendment protects

against punishment, and forfei-

ture is a type of punishment, the

Excessive Fines Clause applies.

The amount seized through ass et forfeiture must bear some relation to the value of the illegal enterprise.

In Trop v. Dulles (1958), Chief Justice Warren stated that the Cruel and Unusual Punishment Clause “must draw its meaning fr om the evolving standards of dec ency that mark the progress of a maturing societ y.”

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 417

Although this text emphasizes U.S. law and the events leading to the formation

of current law, it is interesting to observe how other countries and cultures, both

past and present, determine punishment. Because law in any society seeks to

respond to its present needs, always in flux, the punishments considered appropri-

ate also change. Perhaps the “extremity” of the available punishment forms tends

to change, as do the society’s overall social feelings.

For example, although Americans are steadfast in their belief that crime must be

curtailed “at any price,” the caning (whipping) of young American Michael Fay in

Singapore in 1994, who was found guilty of damage to property, outraged many.

Yet, the crime rate in Singapore is considerably lower than that in the United States.

So what is appropriate punishment? It is what a society defines it as.

In Coker v. Georgia (1977), the Court held that a “punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of

punishment and hence is nothing more than the purposeless and needless imposi-

tion of pain and suffering or (2) is grossly out of proportion to the severity of the

crime.” In seeking a more specific answer to what constitutes cruel and unusual

punishment, courts have used three inquiries in assessing constitutionality (Clear

et al., 2006, p. 109):

■ Whether the punishment shocks the general conscience of a civilized society ■ Whether the punishment is unnecessarily cruel ■ Whether the punishment goes beyond legitimate penal aims

The Supreme Court established three criteria for proportionality analysis of

sentences in Solem v. Helm (1983):

A court’s proportionality analysis under the Eighth Amendment should

be guided by objective criteria, including (1) the gravity of the offense and the

harshness of the penalty; (2) the sentences imposed on other criminals in

the same jurisdiction; and (3) the sentences imposed for the commission of the

same crime in other jurisdictions.

For example, in Robinson v. California (1962), the Supreme Court found “exces- sive” a 90-day jail term for the crime of being “addicted to the use of narcotics.”

Robinson was not under the influence of drugs when arrested, and the only evi-

dence against him was the scars and needle marks on his arms. The Court believed

the defendant was being punished for the mere status of being an addict, not for

actual criminal behavior. Conversely, in Harmelin v. Michigan (1991), the Supreme Court upheld a mandatory life sentence without parole for a first-time cocaine

conviction.

In Pulley v. Harris (1984), the Court held that although many states require pro- portionality review, nothing in the Court’s decisions interpreting the Eighth

Amendment requires a state appellate court, before affirming a death penalty, to

compare the sentence in that case to penalties imposed in similar cases if the defen-

dant requests such a comparison.

In Ewing v. California (2003), the high court considered whether a sentence of 25 years to life imprisonment for felony theft under a “three strikes” sentencing sched-

ule was cruel and unusual. They held 5–4 that California’s “three strikes” law did

not violate the Eighth Amendment. The Court reached the same result in Lockyer v. Andrade (2003).

proportionality analysis in essence, making the

punishment fit the crime

The general rule under the Eighth Amendment is that punishments must be proportional or direct ly related to the crime committ ed.

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418 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

However, in Graham v. Florida (2010), the Supreme Court held that a life sen- tence, without the chance of parole, for a juvenile convicted of a nonhomicide crime

violates the Eighth Amendment clause against cruel and unusual punishment. Ter-

rance Graham was 16 years old when he committed armed burglary and another

crime. Under a plea agreement, the Florida trial court sentenced Graham to proba-

tion and withheld adjudication of guilt. Subsequently, the trial court found that

Graham had violated the terms of his probation by committing additional crimes.

The trial court then adjudicated Graham guilty of the previous charges, revoked his

probation, and sentenced him to life in prison for the burglary. Because Florida has

abolished its parole system, the life sentence left Graham no possibility of release

except executive clemency. Graham challenged his sentence under the Eighth

Amendment’s cruel and unusual punishments clause, but the Florida First District

Court of Appeal affirmed. Graham’s case was granted certiorari by the Supreme

Court, which held,

The concept of proportionality is central to the Eighth Amendment. Embodied

in the Constitution’s ban on cruel and unusual punishments is the “precept of

justice that punishment for crime should be graduated and proportioned to [the]

offense.” . . .

In sum, penological theory is not adequate to justify life without parole for

juvenile nonhomicide offenders. This determination; the limited culpability of

juvenile nonhomicide offenders; and the severity of life without parole sen-

tences all lead to the conclusion that the sentencing practice under considera-

tion is cruel and unusual. This Court now holds that for a juvenile offender

who did not commit homicide the Eighth Amendment forbids the sentence of

life without parole. This clear line is necessary to prevent the possibility that

life without parole sentences will be imposed on juvenile nonhomicide

offenders who are not sufficiently culpable to merit that punishment. Because

“[t]he age of 18 is the point where society draws the line for many purposes

between childhood and adulthood,” those who were below that age when the

offense was committed may not be sentenced to life without parole for a non-

homicide crime. . . .

A state need not guarantee the offender eventual release, but if it imposes a

sentence of life it must provide him or her with some realistic opportunity to obtain

release before the end of that term. The judgment of the First District Court of

Appeal of Florida was reversed, and the case was remanded for further proceed-

ings not inconsistent with this opinion.

The Graham decision was added to in Miller v. Alabama (2012) when the Court stated that “mandatory life without parole for those under the age of 18 at the

time of their crimes violates the Eighth Amendment’s prohibi-

tion on ‘cruel and unusual punishments.’” Although the Court

did not say such a sentence could never be handed down, a state

law mandating such a sentence in every case was unconstitu- tional. As a side note, the Graham decision is interesting not only because it involved a categorical ban on life sentence for juve-

niles convicted of nonhomicides but because the Court also

looked at other countries to aid its decision in determining what

is constitutional.

CASE IN BRIEF

Graham v. Florida (2010)

ISSUE Does sentencing a juvenile to life without parole

violate the Eighth Amendment?

RULING Yes. The Eighth Amendment prohibits life without

parole for juvenile offenders con-

victed of a nonhomicide offense.

A juvenile convict ed of a nonhomicide crime may not be sentenced to life without parole in prison. Such a sentence violates the Eighth Amendment’s cruel and unusual punishment clause.

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 419

By Jeannie Nuss (Associated Press, April 25, 2013)

LITTLE ROCK, Ark. (AP)—A man sentenced to life in

prison without parole when he was 14 years old could end up serving a much

shorter prison term after Arkansas’ highest court ruled Thursday that he

deserves a new sentencing hearing.

The state Supreme Court ordered a new sentencing hearing for Kuntrell

Jackson, whose case was one of two that led to a U.S. Supreme Court decision

last year throwing out mandatory life sentences without parole for juveniles.

“We agree with the State’s concession that Jackson is entitled to the benefit

of the (U.S.) Supreme Court’s opinion in his own case,” Justice Josephine

Linker Hart wrote in the Arkansas Supreme Court’s unanimous decision.

It’s not clear when Jackson’s new hearing will be held, but when it is, the

justices said he may present evidence about his age and the nature of the

crime.

Arkansas’ high court also said Jackson’s sentence has to fall within a

range of 10 to 40 years or life.

Jackson has been in the state prison since 2003 and has more than two

years of jail-time credit, prisons spokeswoman Shea Wilson said. But that

doesn’t necessarily mean he will be released from prison soon.

“My hunch is that there won’t be an immediate release,” said Bryan Ste-

venson, one of Jackson’s attorneys. “Obviously we think there are some very

compelling and mitigating circumstances that warrant a reduced sentence,

but . . . at this point, we don’t know what the court’s going to sentence, so I

don’t want to suggest that he’s coming home tomorrow.”

Jackson was sentenced to life in prison without parole after the shooting

death of a store clerk during an attempted robbery in 1999. Another boy shot

the clerk, but Jackson was present, and so he was convicted of capital murder

and aggravated robbery.

Jackson is now 27 years old and is serving his sentence at a maximum-

security prison in Arkansas. He will stay there until the Department of Cor-

rection receives instructions from the court saying otherwise, Wilson said.

The state Supreme Court also chipped away at the capital murder law

when applied to juveniles in Jackson’s case. In another opinion handed down

Thursday, Justice Cliff Hoofman wrote that “there is currently no authorized

sentence for a juvenile convicted of capital murder under Arkansas law. . . .”

In that case, the state Supreme Court said Lemuel Whiteside, another

young man sentenced to life in prison without parole, deserves a new sen-

tencing hearing. Whiteside was convicted of capital murder and aggravated

robbery in connection with a 2009 robbery and death. He was 17 at the time

of the crime.

“New Hearing for Arkansas Inmate Sentenced as Teen”

IN THE NEWS

(Continued)

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420 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

“I think there may be remaining questions that are yet to be resolved, but

generally we think that what the court has ordered is consistent with the (U.S.)

Supreme Court’s decision,” said Stevenson, a Montgomery-Ala.-based lawyer.

Prior to the U.S. Supreme Court’s June decision, the court had already

ruled that juveniles cannot be sentenced to death.

Arkansas Attorney General Dustin McDaniel respects the state Supreme

Court’s decisions and wasn’t surprised by them, spokesman Aaron Sadler said.

The U.S. Supreme Court’s June decision came in the robbery and murder

cases of Jackson and Evan Miller, who also was 14 when he was convicted

and sentenced to life without parole.

Miller was convicted in Alabama of capital murder during the course

of arson. A neighbor, while doing drugs and drinking with Miller and a

16-year-old boy, attacked Miller. Intoxicated, Miller and his friend beat the

52-year-old man and set fire to his home, killing him.

Using Jackson’s case, Justices Stephen Breyer and Sonia Sotomayor said

in a separate opinion that they would have gone even further than just get-

ting rid of laws requiring mandatory life in prison without parole for juve-

niles like Jackson.

“There is no basis for imposing a sentence of life without parole upon a

juvenile who did not himself kill or intend to kill,” Breyer said in a separate

opinion last year.

Stevenson said Jackson’s lawyers are pleased that the state Supreme

Court decided to send his case back to a lower court for resentencing.

“That’s been our hope all along that a more appropriate and just sentence

could be imposed than the mandatory life sentence that he received initially,”

Stevenson said.

The Supreme Court tackled the issue of corporal punishment (causing bodily

harm) in Ingraham v. Wright (1977). James Ingraham, a junior high school student, had been hit more than 20 times with a paddle for disobeying a teacher’s order. He

required medical attention and missed 11 days of school. The Court held, “The state

itself may impose such corporal punishment as is necessary for the proper educa-

tion of the child for the maintenance of group discipline.” Furthermore, the Court

stated, “The school child has little need for protection of the Eighth Amendment

because the openness of the public school and its Supervision by the community

affords significant safeguards against the kinds of abuses from which the Eighth

Amendment protects the prisoner.” This case is included as an example of the con-

troversy that continues, both in the courtroom and elsewhere, as to what conse-

quences are appropriate in the home, school, and court. This does not, however,

preclude various civil causes of action a child or parent could bring in court.

Punishment Options

Few dispute the necessity of punishment as a means of social control in an ordered

society. As Cicero noted in Pro Milone (50 b.c.e.), “The greatest incitement to crime

corporal punishment causing bodily harm through

physical force, for example,

whipping, flogging, or beating

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 421

is the hope of escaping punishment.” The challenge is in determining what the

most appropriate and effective punishment might be.

The U.S. criminal justice system continues to work with different ways to meet

the goals of punishment, incorporating rehabilitation when possible. Many

options are available on the continuum of possibilities, as illustrated in Figure 12.1,

including probation, parole, length and types of incarceration, restitution, and

new ideas that continue to evolve from the corrections component of the criminal

justice system.

Table 12.1 expands on these sentencing options, showing how they relate to the

law on the books and the law in action. Of course, particularly heinous crime does

not lend itself to the lesser sanctions, but new possibilities continue to present

themselves. Not all of these options meet the expectations of the public or the politi-

cians. Because new paradigms are not necessarily readily embraced, new correc-

tional concepts are understandably challenged. The real challenge, however, is to

honestly inquire whether existing means work and, when they do not, what might.

When the prison sanction is selected, the result is often much litigation in this area

of Eighth Amendment law that pertains to prisoner treatment.

Physical Forms of Punishment

Modern technology presents several possible treatments for criminals, including

Antabuse, a drug used in treating alcoholics by causing nausea and vomiting when

alcohol is ingested. Sex offenders have been treated with Depo-Provera, a drug that

reduces the sex drive. Use of such drugs and surgical procedures, such as castration

and lobotomy, may run counter to the Eighth Amendment’s ban on cruel and

unusual punishment.

More restrictive

Probation

Prison

Death

Less restrictive

Intermediate sanctions

Boot camps • Residential community corrections Day reporting centers • Electronic monitoring House arrest • Intensive supervision programs

Community service • Restitution Forfeitures • Day fines • Probation

Figure 12.1 The Sentencing Continuum

Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions.

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422 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Table 12.1 Sentencing Options

Law on the Booksa Law in Action

Prison A correctional facility for housing adults convicted of felony offenses, usually under the control of state government.

Nearly 1.6 million adults (1,598,780) were incarcerated in either a

state or federal prison at year-end 2011.b

Males were imprisoned at 14 times the rate of females, and

females comprised 6.7 percent of the 2011 prison population.b

In 2011, Blacks and Hispanics were imprisoned at higher rates

than Whites in all age groups for both male and female inmates.b

Parole Adults conditionally released to community supervision after serving part of a prison term. The parolee is subject to being

returned to prison for rule violations or other offenses.

Nearly 853,900 adults were on parole at year end 2011.c

Eleven percent of parolees in 2011 were women.c

Forty-one percent of parolees in 2011 were White non-Hispanic.c

More than a quarter (28 percent) of parolees in 2011 were being

supervised for a violent offense.c

Probation Punishment for a crime that allows the offender to remain in the community without incarceration but subject to certain

conditions.

An estimated 3,971,300 adults were on probation under federal,

state, or local jurisdiction at year end 2011.c

More than half (53 percent) of all offenders on probation in 2011

committed a felony, and nearly 1 in 5 (18 percent) were being

supervised for a violent offense.c

Intermediate Sanctions

A variety of punishments that are more restrictive than

traditional probation but less stringent than incarceration.

Much less costly than imprisonment.

Community service requires offender to perform public service

such as street cleaning or hospital volunteer work.

Electronic monitoring ensures that a probationer does not leave

home except to go to work.

Fines A sum of money to be paid to the government by a convicted person as punishment for an offense.

Often used for misdemeanor offenses.

Recent research shows that it can be effectively used to punish

selected felonies.

Restitution Requirement that the offender pay to the victim a sum of money to make good the loss.

Most defendants are so poor that they cannot reasonably be

expected to make restitution.

Capital Punishment

The use of the death penalty (execution) as the punishment

for the commission of a particular crime.

At year end 2010, 3,158 prisoners were on death row.d

Fifty-five percent of death row inmates in 2010 were White.d

Ninety-eight percent of death row inmates in 2010 were male.d

At year end 2010, all 36 states with death penalty statutes

authorized lethal injection as a method of execution.d

com/permissions.

b Carson, E. Ann, and Sabol, William J. Prisoners in 2011. (NCJ 239808.) Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics, December 2012.

c Maruschak, Laura M., and Parks, Erika. Probation and Parole in the United States, 2011. (NCJ 239686.) Washington, DC: Bureau of Justice Statistics, November 2012. d Snell, Tracy L. Capital Punishment, 2010—Statistical Tables. (NCJ 236510.) Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics, December 2011.

Although other forms of bodily punishment for criminals have disappeared, the

death penalty remains in use and is controversial. The Supreme Court has decided

many cases on the constitutionality of capital punishment. It has also defined the

nature of cruel and unusual punishment in noncapital cases. However, the death

penalty remains the most debated issue under the Eighth Amendment because it

concerns the ultimate issue: life or death.

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 423

Capital Punishment The death penalty dates back centuries. History records many brutal methods of

execution, including being buried alive, thrown to wild animals, drawn and quar-

tered, boiled in oil, burned, stoned, drowned, impaled, crucified, pressed to death,

smothered, stretched on a rack, disemboweled, beheaded, hanged, or shot. In

biblical times, criminals were stoned to death or crucified. The ancient Greeks, in a

much more humane fashion, administered poison from the hemlock tree to execute

criminals. The Romans, in contrast, used beheading, clubbing, strangling, drawing

and quartering, or feeding to the lions. During the Dark Ages, ordeals were devised

to serve as both judgment and punishment. These ordeals included being sub-

merged in water or in boiling oil, crushed under huge boulders, or forced to do

battle with skilled swordsmen. It was presumed the innocent would survive the

ordeal; the guilty would be killed by it. Later, in France, the guillotine became the

preferred means of execution.

The death penalty has been an established feature of the U.S. criminal justice

system since colonial times, with hanging the preferred method of execution in

early years, especially on the frontier. Means of execution evolved as states

sought more humane ways of killing their condemned—from hangings to the

first electrocution in 1890, the invention of the gas chamber in 1923, the use of

the firing squad, and finally, the addition of lethal injection, now the predomi-

nant method of execution in the United States. At mid-year 2013, 30 states plus

the U.S. military and the federal government authorized the death penalty. The

five means of execution currently used in the United States are death by firing

squad (used by 1 state), hanging (used by 2 states), gas chamber (4 states), elec-

tric chair (9 states), and lethal injection (35 states, the U.S. military, and the

federal government).

Until the middle of the nineteenth century, the death penalty was the automatic

sentence for a convicted murderer. State laws began to draw distinctions between

degrees of murder, but the death penalty was still automatic for first-degree mur-

derers. By the early twentieth century, however, state legislatures had given jurors

more discretion in sentencing. The jurors were given no guidance by state law in

choosing between life and death sentences. Jurors had total discretion in this deci-

sion, which could not be reviewed on appeal.

Historically, most criminals facing capital punishment were sentenced under

state, not federal, law. Thus, the Eighth Amendment’s prohibition against cruel and

unusual punishment was not relevant to the overwhelming majority of death

penalty cases until the Supreme Court incorporated it to apply to the states in

Robinson v. California (1962).

Is Capital Punishment Cruel and Unusual?

Of the five means by which the death penalty is carried out in the United States, the

Supreme Court has found none of them inherently cruel and unusual, but not with-

out judicial controversy and public dissension. Only hanging has been challenged

in federal court and held not to be cruel and unusual (Campbell v. Blodgett, 1994), except in the case of a 400-plus pound man because the result of hanging was likely

to be decapitation (Rupe v. Wood, 1994).

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424 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Although today’s methods are said to be more civilized, accounts of witnesses

to executions raise doubts whether progress has been made. Executions by means

of poisonous gas and electrocution have occasionally resulted in horrific stories of

lingering, painful deaths. For example, during the much publicized 1997 Florida

execution of Pedro Medina, who was convicted of killing a police officer, flames

shot some 12 inches high from Medina’s head while he sat strapped to the state’s

74-year-old electric chair, referred to as “Old Sparky.” Yet death by such means has

not been held to be unconstitutional. Lethal injection is considered by some to be

the only politically correct method of capital punishment.

The issue of cruel and unusual punishment has a long history and has given the

courts great difficulty in defining it. In Furman v. Georgia (1972), the Court’s opinion was more than 230 pages. All nine justices wrote separate opinions trying to define

the meaning of four words: cruel and unusual punishment. In this case, William Furman had broken into a private home in the middle of

the night, intending only to burglarize it, although he was carrying a gun. Furman

attempted to escape when the home owner awoke. Furman tripped and his gun

discharged, hitting and killing the owner through a closed door. Furman was Black;

the home owner was White. Furman was sentenced to death.

In consolidating three other cases with Furman’s (all involving White victims

and Black defendants but having little else in common), the Supreme Court consid-

ered the varied public opinions regarding the death penalty. The court ruled that

the death penalty as then administered in Georgia was cruel and unusual punishment because it was “wantonly and freakishly” imposed. Judges and juries had far too

much unguided discretion under current state laws, and the Supreme Court held

this led to arbitrary and capricious, or random and unreasonable,

death sentences and, thus, violated due process.

In Furman, the Supreme Court did not rule the death penalty was unconstitutional in all circumstances. Rather, the Court held

that the states had to give judges and juries more guidance in capi-

tal sentencing to prevent discretionary use of the death penalty. It

held that Georgia’s death penalty law, as administered, was invalid.

In effect, the Furman case put on hold capital punishment statutes in 37 states, and executions across the country were suspended as a

result. In response, about three-fourths of the states and the federal

government passed new death penalty laws, in many instances instituting a two-step

trial procedure: the first step to determine innocence or guilt and the second step to

determine whether to seek the death penalty. Such a two-stage trial is often referred to

as a bifurcated trial. While reviewing these laws, the Supreme Court finally decided

whether the death penalty was inherently cruel and unusual punishment.

Four years after Furman, in Gregg v. Georgia (1976), the Court sustained a revised Georgia death penalty law by a 7–2 margin, stating, “A punishment is unconstitu-

tionally cruel and unusual only if it violates the evolving levels of decency that

define a civilized society. The death penalty today in the United

States does not do that—as is proved by public opinion substan-

tially favoring executions, by legislatures enacting death penalty

statutes or refusing to repeal them and by courts willing to sen-

tence hundreds of murderers to death every year.”

The Court also affirmed the importance of a bifurcated trial.

bifurcated trial a two-step trial for capital cases: the first

step is determination of

innocence or guilt; the second

step, if the defendant is found

guilty, is determination of whether

to seek the death penalty

Although capital punishment may app ear cruel and unusual to some, the Supreme Court has not held this to be the case.

Furman v. Georgia (1972) was the landmark case in wh ich the Supreme Court called for a ban on the death penalty in Georgia, ruling its law as it stood was capricious and, hence, cruel and unusual punishment.

In Gregg v. Georgia (1976), the Supreme Court reinstated the Georgia death penalty by sustaining its revised death penalty law.

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 425

In rendering its opinion the Court recognized the significance of public opinion,

citing strong public support for the death penalty. The Court noted that three-

fourths of state legislatures reenacted the death penalty after

Furman; therefore, the death penalty was not “unusual” pun- ishment. In a strong dissent, Justice William Brennan repeated

the arguments he had made against the death penalty in Fur- man. Brennan questioned “whether a society for which the dignity of the individual is the supreme value can, without a

fundamental inconsistency, follow the practice of deliberately

putting some of its members to death. . . . Even the most vile

criminal remains a human being possessed of common human

dignity.” Brennan concluded,

This Court inescapably has the duty, as the ultimate arbiter of the meaning of our

Constitution, to say whether, when individuals condemned to death stand

before our Bar, “moral concepts” require us to hold that the law has progressed

to the point where we should declare that the punishment of death, like

punishments on the rack, the screw and the wheel, is no longer morally tolerable

in our society.

In Baze v. Rees (2008), the Court considered the appeal of Ralph Baze and Thomas Bowling, who were sentenced to death in Kentucky. The men argued that

executing them by lethal injection would violate the Eighth Amendment prohibi-

tion of cruel and unusual punishment. Under court precedent, lethal injection must

not inflict “unnecessary pain,” and the men’s attorneys argued that the chemicals

used to kill them carried an unnecessary risk of inflicting pain during the process.

The case had nationwide implications because the specific three-drug protocol used

for lethal injection in Kentucky was the same as that used by virtually all states

authorizing lethal injection. An effective moratorium on executions in the United

States took place because certiorari was granted in this case.

In 2008 in a “fragmented” 7–2 decision, with seven justices writing separate

decisions, the Supreme Court upheld Kentucky’s three-drug protocol for execution

by lethal injection. According to Chief Justice John Roberts, to constitute cruel and

unusual punishment, a method of execution must present a “substantial” or “objec-

tively intolerable” risk of serious harm. A state’s refusal to adopt alternative proce-

dures may violate the Eighth Amendment only where the alternative is feasible, can

be readily implemented, and significantly reduces the risk of pain (“Common

Lethal Injection Method Upheld,” 2008, p. 1).

Are Lengthy Delays in Execution Cruel and Unusual?

Justices Stephen Breyer and Clarence Thomas have engaged in an unusual public

debate over whether long delays in carrying out executions constitute cruel and

unusual punishment. Justice Breyer believes the Court should consider this ques-

tion and dissented when the Court declined to hear arguments in two cases that

raised it: State v. Moore (2006) and Knight v. Florida (1999). Justice Thomas, on the other hand, is indignant that death row inmates could seek to take advantage of

what he called “this court’s Byzantine death penalty jurisprudence” and then com-

plain when their appeals cause lengthy delays in their executions. Justice Thomas

The death penalty itself is not cruel and unusual punishment, but a capital case requires two proceedings: one to det ermine guilt or innocence and the ot her to det ermine the sentence (Gregg v. Georgia, 1976).

CASE IN BRIEF

Baze v. Rees (2008)

ISSUE Is the use of the three- drug lethal injection scheme

constitutional?

RULING Yes. The lethal injection scheme the state has

in place does not violate the

Constitutional ban on cruel and

unusual punishment because,

if performed correctly, it was

“humane.”

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426 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

said that, in his view, the question of whether long delays in carrying out death

sentences are unconstitutional has been decided, and the answer is no: “I write only

to point out that I am unaware of any support in the American Constitutional tradi-

tion or in this court’s precedent for the proposition that a defendant can avail him-

self of the panoply of the appellate and collateral procedures and then complain

when his execution is delayed.” In Thompson v. McNeil (2009), the Supreme Court rejected an appeal by convicted murderer William Lee Thompson, who claimed

that his 32-year imprisonment caused by his appeals constituted “cruel and

unusual punishment.”

Who Can Be Executed?

As a general rule, the Supreme Court has upheld the death penalty for murder but

not for other crimes. Under the Eighth Amendment, the punishment must be

related to the crime, so execution is appropriate only in cases of murder—a life for

a life. In many states, new death penalty sentencing systems require judges and

juries to consider aggravating factors and mitigating factors in each capital case and

to apply the death penalty in only the most heinous cases.

Some such sentencing systems were challenged. For example, in Maynard v. Cartwright (1988), the Court held that an Oklahoma statute allowing a jury to impose the death penalty if the murder was “especially heinous, atrocious or cruel” was

unconstitutional because it did not sufficiently guide the jury’s decision. However,

in Arave v. Creech (1993), the Court upheld an Idaho law identifying as an aggravat- ing circumstance a murderer who showed “utter disregard for human life.”

In 2002 in Bell v. Cone, the Supreme Court ruled against Tennessee death row inmate Gary Cone, who claimed his lawyer was incompetent. The Court signaled it

will take a narrow view of death row inmates’ claims that their lawyers were incom-

petent. However, because the death penalty is involved, claims will be scrutinized.

A series of cases have addressed the eligibility of individuals found guilty of

murder or other “heinous crimes” who might be sentenced to death. This arena is

where much of the action on the Eighth Amendment has taken place in the past few

years. Issues involve age, race, mental retardation, and mental illness.

Age In Eddings v. Oklahoma (1982), the Supreme Court vacated the death sentence of a 16-year-old boy by a 5–4 vote. In Thompson v. Oklahoma (1988) the Court held,

Less blameworthiness should attach to a crime committed by a juvenile than one

committed by an adult because inexperience, less education and less intelligence

make the juvenile less able to appreciate the consequences of his or her conduct

while, at the same time, such conduct is more apt to be influenced by peer pres-

sure. Given this lesser culpability, the retributive purpose of the death penalty is

not applicable to a 15-year-old offender. Moreover, since 18 states now prohibit

imposing the death sentence on an offender less than 16 years old and another

14 states have abolished the death penalty entirely, it is likely there is a national

consensus that imposing the death penalty on a 15-year-old today would offend

the conscience of the community.

Unlike Eddings, Stanford v. Kentucky (1989) held, “In the absence of any historical or modern society consensus against imposing capital punishment on 16- and 17-year-

old murderers, such death sentences do not violate the Eighth Amendment.”

Most states will not consider the death sentence for anyone younger than 15 years of age.

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 427

These cases lead to Roper v. Simmons (2005), which held that the Eighth and Fourteenth Amendments will not permit executing anyone under 18 years of age

for committing a crime. In this case, Christopher Simmons was 17 years old

when he received the death sentence for murdering Shirley Crook while burglar-

izing her home, and then, with the help of an even younger accomplice, throw-

ing her bound body off a cliff in a park. He appealed on the grounds the death

penalty was cruel and unusual punishment because of his age when he commit-

ted the crime. Simmons gave a full confession, even providing a videotaped

reenactment of his crime. In a 5–4 vote, Justice Anthony Kennedy wrote, “When

a juvenile offender commits a heinous crime, the State can exact forfeiture of

some of the most basic liberties, but the State cannot extinguish his life and his

potential to attain a mature understanding of his own humanity,” referring to

Justice John Paul Stevens’s quote regarding evolving standards of decency mark-

ing a maturing society.

Justice Kennedy also wrote, “The objective of national consensus here—the

rejection of the juvenile death penalty in the majority of states; the infrequency of

its use even where it remains on the books; and the consistency in the trend toward

abolition of the practice—provides sufficient evidence that today our society views

juveniles, in the words . . . used respecting the mentally retarded, as ‘categorically

less culpable than the average criminal.’”

Race In McCleskey v. Kemp (1987), Warren McCleskey presented a thorough sta- tistical study contending that capital punishment in Georgia was filled with racial

discrimination. The Court ruled that even if the study was valid, McCleskey had

not proved the sentence was the result of racial discrimination.

Just as controversy surrounds whether the criminal justice system in general is

biased, cases involving the death penalty raise the issue of bias as well: “The per-

centage of Blacks who have been executed far exceeds their proportion of the gen-

eral population. Particularly interesting is that more than 80 percent of the victims

of those executed have been White. What makes this finding interesting is that

murders, including capital murders, tend to be intraracial. However the death pen-

alty is imposed primarily on the killers of White people, regardless of the race or

ethnicity of the offender” (Bohm and Haley, 2007, pp. 329–330). Whether these

figures are considered simply factual or disconcerting, the Supreme Court has yet

to conclude any constitutional issues are involved.

Mental Retardation In Penry v. Lynaugh (1989), a case involving a mentally retarded defendant possessing an IQ between 50 and 63 and a mental age of a

6-and-a-half-year-old, the Court held, “Since mentally retarded individuals vary

greatly in their mental attributes and thus their limitations, it is not cruel and

unusual punishment to impose the death penalty on a retarded defendant who was

found competent to stand trial and whose insanity defense was rejected at trial.”

The defendant’s mental state could be considered, but there was no prohibition

against executing the mentally ill convicted of a capital offense. (In an interesting

side note, just hours before he was to be executed in 1999, Johnny Paul Penry was

granted a stay of execution by the U.S. Supreme Court. When told of the stay, his

first concern was whether he could still have his last meal of a cheeseburger and

French fries. This raises the question, “What is accomplished by executing the men-

tally retarded?”)

CASE IN BRIEF

Roper v. Simmons (2005)

ISSUE Does the execution of a person under the age of 18

violate the Constitution?

RULING Yes. Executing a person under 18 is considered

“cruel and unusual” punishment.

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428 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

In 2002 the Supreme Court amended its position on capital punishment of the

mentally retarded in Atkins v. Virginia, holding that executing the mentally retarded is cruel and unusual punishment in violation of the Eighth Amendment.

The Mentally Ill Closely related to the question of executing those who are

mentally retarded is the question of forcing a convicted murderer to take drugs to

make him sane enough to be executed. The Supreme Court banned execution of the

insane in 1986. In Singleton v. Norris (2003), the Supreme Court let stand a ruling by a federal appeals court that allowed Arkansas officials to force a convicted mur-

derer to take drugs to make him sane enough to be executed. The Supreme Court

held in Ford v. Wainwright (1986) that an inmate who became mentally ill while in prison could not be executed.

Appeals

All but one state that has the death penalty require automatic appellate review of

death sentences. South Carolina will allow a competent defendant to waive this

review. However, there is no such automatic right to have the Supreme Court

review every death sentence case, although justices are willing to address many

issues having merit.

Because capital punishment is the ultimate sanction a government can inflict,

appeals are certain and lengthy. Appeals will be heard by the state courts, and a

writ of certiorari may be filed with the Supreme Court. Most capital cases originate

in the states, and appeals can be filed directly through the state court system. In

addition, the defendants may make indirect or collateral appeals of their sentences

through the federal court system by arguing that their constitutional rights have

been violated.

Costs of the Death Penalty

Death penalty cases require enormous expenditures on a single defendant. The

estimated cost of convicting and executing each offender ranges from $2.5 million

to $5 million, a significantly steep price when compared to the less than $1 million

spent to house a killer for life without parole (Fagan, 2010). In an era of budget

restrictions and tough decisions on how best to allocate limited resources, legisla-

tors and taxpayers are directing increased scrutiny toward such costly policies. For

example, it is estimated that Florida’s death penalty policy costs the state $25 mil-

lion to $50 million more each year than if it sentenced all murderers to life without

parole (Fagan, 2010). Similarly, Indiana taxpayers have spent approximately $37

million more than they would have if the state had sentenced all of the offenders

on death row to life without parole instead (Fagan, 2010).

Juries and Capital Punishment Cases

The Supreme Court continues to hear matters pertaining to the death penalty.

Whether potential jurors can be excluded because of their objections to the death

penalty has been reviewed in several cases, with the Lockhart v. McCree (1986) Court determining that jurors whose opposition to the death penalty is so strong that it

would prevent or substantially impair the performance of their duties could be

removed. In Morgan v. Illinois (1992), the Supreme Court held that a prospective

The Supreme Court has prohibited exec uting mentally ret arded individuals.

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 429

juror in a capital case who indicates that if the defendant is found guilty the death

penalty should be imposed can be challenged for cause and removed.

In Simmons v. South Carolina (1994), the Court held that if the prosecution con- tends a defendant should be put to death because he is too dangerous to ever return

to society, without informing the jury of the option of a sentence of life without

parole, this action could be considered a denial of due process.

In June 1999, in Jones v. United States, the Supreme Court ruled that juries need not be told the consequences of a deadlock. This case involved the first set of issues

to reach the Supreme Court regarding the Federal Death Penalty Act of 1994, which

reestablished capital punishment at the federal level for a number of crimes. In this

case, Louis Jones, Jr., was convicted of kidnapping a woman from an Air Force

base, sexually assaulting her, and beating her to death with a tire iron. Jones

appealed on the grounds that the jury was not instructed about what would hap-

pen if they deadlocked. If they had deadlocked, the judge would have sentenced

him to life without parole. Justice Thomas, writing for the majority, believed that

telling the jury the consequences of deadlock constitutes “an open invitation for the

jury to avoid its responsibility and to disagree.” Judge Thomas continued, “In a

capital sentencing proceeding, the government has a strong interest in having the

jury express the conscience of the community on the ultimate question of life and

death. . . . We are of the view that a charge to the jury of the sort proposed by [Jones]

might well have the effect of undermining this strong governmental interest.”

In Ring v. Arizona (2002), the Court ruled that capital punishment can be imposed only by a jury or by a judge following a jury’s recommendation. However,

in 2004, in Schriro v. Summerlin, the Court held that the decision requiring juries, not judges, to impose sentences in capital case need not be applied retroactively to

death row inmates whose sentences already had been affirmed on direct appeal.

Continuing Controversy

The death penalty has been and remains extremely controversial, and the debate

about the cruel and unusual punishment clause is far from over. It has enjoyed a

brief period of prominence, although this prominence may have been achieved at

some cost in public perception of the legitimacy of the court’s decision-making

process. In any event, the court’s recent concern with the clause is now seriously

threatened by attempts to adopt a more traditional authoritarian approach toward

interpreting the clause’s language.

Gallup Poll results indicate that the public still supports the death penalty. In

early 2013, 63 percent of Americans were in favor of the death penalty as the punish-

ment for murder, similar to 61 percent in 2011 and 64 percent in 2010 (Saad, 2013).

The high point for endorsement for the death penalty was in 1994, when 80 percent

of the U.S. public supported it (Saad, 2013). A Police magazine survey, to which 2,662 (28 percent) responded, showed that 94 percent of officers supported the death

penalty. The primary reason given for favoring the death penalty (96 percent) was

that it removed a dangerous person from the population. Another reason given is

that capital punishment serves as a powerful deterrent to murder. However, a sur-

vey of former and current presidents of the country’s top academic criminological

societies shows that 88 percent of these experts rejected the notion that the death

penalty acts as a deterrent to murder (“Facts about the Death Penalty,” 2010).

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430 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

Other justifications given for supporting capital punishment are retribution or

an eye-for-an-eye morality and fear that violent criminals sentenced to life in prison

without parole can actually be paroled (“Officers Support Death Penalty,” 2008). To

this last reason, Moore (2010, p. 82) recalls the murder of four Lakewood (Washing-

ton) police officers gunned down by a convicted killer, Maurice Clemmons, who

was serving 108 years in an Arkansas state prison and was granted clemency by

then-governor Mike Huckabee: “Twice the government had a chance to keep this

man from becoming the mass killer he did; twice it failed to do its job.”

How an individual personally responds to such circumstances indicates the emo-

tion that goes into determining what sentences are within our legal confines, with the

logical question being whether any particular method serves its purpose. To be sure,

debate will continue. The death penalty will be an issue for years to come, with strong

advocates and opponents, because at the core of the issue is the question of values.

A modern development affecting the law of criminal procedure is DNA testing,

with both prosecutors and defense attorneys putting this compelling evidence to

good use. The impact on past cases has proved particularly troubling because of the

number of convicted individuals, some awaiting execution, who have since been

exonerated through the use of DNA evidence. More than 200 prisoners have been

freed since 1989 because of DNA evidence: “Perhaps the worst example . . . occurred

in Illinois, where, of 25 prisoners awaiting their fate on death row since 1977, DNA

analysis showed a majority could not have committed the murders for which they

had been convicted. After the thirteenth prisoner was exonerated, Governor George

Ryan in January 2000 announced a moratorium on the death penalty in the state”

(Ducat, 2010, p. 583).

The Eighth Amendment and Corrections Because corrections is an integral component of the criminal justice system, it must

be considered along with law enforcement and courts when one learns about the

Constitution, as all components are affected by constitutional law. In addition to the

rights of those in prison, the study of criminal justice includes consideration of why

people are in prison, who makes up prison populations, and whether minorities are

disproportionately confined.

The system struggles to understand those who find themselves in prison to

better address such issues as prevention, treatment, rehabilitation, and the ever-

present question whether the system is biased. That the statistics reflect a dispro-

portionate number of inmates who are Black begs the question of whether the

criminal justice system is racist: “The overrepresentation of Blacks in prison is a

very heated issue in criminal justice today, and research has not established a con-

sensus on the reasons for that overrepresentation. Currently, however, the weight

of the evidence suggests that offense seriousness and prior criminal record gener-

ally exert a stronger impact on decisions to imprison than do extralegal factors such

as race” (Bohm and Haley, 2007, p. 365). The numbers are a concern, as are the

questions of why and how society and the system can best respond.

Due process and equal protection issues are significant concerns in correc-

tions because violations of these rights are unconstitutional. Numbers alone do

not provide the answer. Young Black and Hispanic males are disproportionately

overrepresented in the criminal justice system, and the reasons for this are

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 431

disputed: “There is no obvious answer. That is one of the reasons recent studies of

race and criminal justice find that ‘the criminal justice system is neither completely

free of racial bias nor systematically racially biased’” (Clear et al., 2006, p. 490).

Research, the law, and society as a whole continue to seek enlightenment and pro-

vide guidance on such issues of importance to criminal justice.

As with the previous amendments, prisoners have limited con-

stitutional rights, but these rights are not entirely suspended and

have been the basis for numerous lawsuits. Eighth Amendment

violations are typically divided into two categories: (1) actions

against individual prisoners, such as solitary confinement, and

(2) institutional conditions to which all inmates are subject. For

example, in Brown v. Plata (2011) the Supreme Court ruled that ade- quate medical and mental health care in the California prison system

fell below the norms of decency that “inheres in the Eighth Amend-

ment.” To remedy this constitutional violation, a three-judge panel,

under authority of the Prison Litigation Reform Act (PLRA), ordered

that state’s prison system to eliminate the overcrowding situation.

Prisoner Treatment and the Eighth Amendment

The Supreme Court has been called on to determine whether conditions and actions

within correctional institutions constitute cruel and unusual punishment. Follow-

ing are five cases with selected interpretations of the Eighth Amendment as applied

to prisoners (Clear and Cole, 2000):

■ Ruiz v. Estelle (1975) ruled that conditions of confinement in the Texas prison system were unconstitutional.

■ Estelle v. Gamble (1976) held that deliberate indifference to prisoners’ serious medical needs constitutes unnecessary, wanton infliction of pain.

■ Rhodes v. Chapman (1981) ruled that double-celling and crowding do not necessarily constitute cruel and unusual punishment. The conditions must

be shown to involve “wanton and unnecessary infliction of pain” and to be

“grossly disproportionate” to the severity of the crime warranting

imprisonment. ■ Whitley v. Albers (1986) held that a prisoner shot in the leg during a riot did not

suffer cruel and unusual punishment if the action was taken in good faith to

maintain discipline rather than for the mere purpose of causing harm. This case

illustrates an important distinction between use of force by prison guards and

other correctional staff, in which the actions are judged under the Eighth

Amendment, and the force used by police officers, which is a Fourth

Amendment issue. The key difference is that, under the Fourth Amendment, the

force is used against “free” persons (i.e., those not convicted). The Court held:

“We think the Eighth Amendment, which is specifically concerned with the

unnecessary and wanton infliction of pain in penal institutions, serves as the pri-

mary source of substantive protection to convicted prisoners in cases such as this

one, where the deliberate use of force is challenged as excessive and unjustified.” ■ Wilson v. Seiter (1991) ruled that prisoners must prove prison conditions are

objectively cruel and unusual and show they exist because of officials’

deliberate indifference.

For prisoners, cases based on Eighth Amendment rights involve cruel and unusual punishment, such as overcrowding, solitary confi nement, corporal punishment, physical abuse, and the use of force; treatment and rehabilitation; the right not to be treated; and the death penalty.

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432 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

The issue of second-hand cigarette smoke was addressed in Helling v. McKinney (1993). In this case the Court held that the Nevada Department of Prisons “with

deliberate indifference, exposed him [McKinney] to levels of ETS [second-hand

smoke] that pose an unreasonable risk of serious damage to his future health.” As

a result of this case, many correctional facilities have established smoke-free envi-

ronments or permit smoking only in designated areas or outside. However, many

correctional administrators contend that smoking privileges are important in con-

trolling inmate behavior. Not being allowed to smoke may make inmates irritable

and aggressive. Ironically, both smokers and nonsmokers claim violation of their

Eighth Amendment rights.

Another prisoner management tool, visiting privileges, has also been an Eighth

Amendment issue. Overton v. Bazetta (2003) held it is not cruel and unusual punish- ment for a prison to suspend visiting privileges for inmates who have failed more

than one drug test. Weight lifting in correctional facilities has also been a manage-

ment tool to help relieve stress for inmates. However, Arizona, Georgia, and North

Carolina have banned weight lifting in state prisons and jails, primarily prohibiting

use of free weights because they can be used as weapons.

A controversial correctional management tool is the use of chain gangs. Advo-

cates contend that work on a chain gang is appropriate punishment and that it

puts criminals to work, giving them the opportunity to make restitution. In addi-

tion, the hard work ensures that prison is not pleasant, something society

demands. Opponents, however, claim such gangs are a form of cruel and unusual

punishment, but courts have not upheld this practice as a violation of the Eighth

Amendment.

Some forms of physical punishment have also been challenged. For example,

handcuffing a prison inmate to a post as punishment for bad behavior was found

to be cruel and unusual punishment. In Hope v. Pelzer (2002), the Court held that Alabama prisoner Larry Hope did have his Eighth Amendment rights violated

when he was handcuffed on two occasions to a hitching post because his behavior

was considered disruptive. His arms were held above shoulder level, causing pain

and injuries to his arms. Further conduct resulted in Hope spending seven more

hours affixed to the post, this time being forced to remain shirtless in the sun. He

was provided nothing to drink while at least one guard taunted him about being

thirsty. Having previously described cruel and unusual punishment as “unneces-

sary and wanton pain that is totally without penological justification,” the Court

held that Hope’s Eighth Amendment rights were violated and allowed his civil suit

against the guards to move forward.

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Chapter 12 The Eighth Amendment: Bail, Fines, and Punishment 433

Summary The Eighth Amendment protects three rights: a prohi-

bition against excessive bail, excessive fines, and cruel

and unusual punishment. Bail serves two purposes.

First, it helps ensure the appearance of the accused at

court proceedings. Second, it maintains the presump-

tion of innocence by allowing individuals not yet

convicted of a crime to avoid continued incarceration.

The Constitution does not guarantee a right to bail; it

only prohibits excessive bail, which it does not define.

The Eighth Amendment does not apply to the states.

The Bail Reform Act of 1984 established the practice

of preventive detention for individuals deemed a

threat to society or likely to flee, as well as other

options to incarceration. Bail set at a figure higher than

an amount reasonably calculated to fulfill its purpose is

excessive under the Eighth Amendment (Stack v. Boyle, 1951). The excessive bail prohibition has never been

formally incorporated to apply to the states under the

Fourteenth Amendment, allowing states to deal with it

through their constitutions, legislation, and case law.

Likewise, the prohibition against excessive fines has

not been incorporated, so it does not apply to the states.

One type of fine is asset forfeiture. Property con-

nected with illegal activity may be forfeited when

used as a “conveyance” (including aircraft, ships, and

motor vehicles) to transport illicit drugs. Real estate

used in association with a crime and money or other

negotiable instruments obtained through the crimi-

nal activity also can be seized, and such seizure is

considered a civil sanction by the government. The

amount seized through asset forfeiture must bear

some relation to the value of the illegal enterprise.

In Trop v. Dulles (1958), Chief Justice Warren stated that the Cruel and Unusual Punishment

Clause “must draw its meaning from the evolving

standards of decency that mark the progress of a

maturing society.” The general rule under the Eighth

Amendment is that punishment must be propor-

tional or directly related to the crime committed.

Although capital punishment may appear to be

cruel and unusual, the Supreme Court has not held

this to be the case. However, in certain instances, the

Court has found states to be in violation of its citi-

zens’ due process protection. Furman v. Georgia (1972) was the landmark case in which the Supreme Court

called for a ban on the death penalty in Georgia, rul-

ing its law was capricious and, hence, cruel and

unusual punishment. In Gregg v. Georgia (1976), the Supreme Court reinstated the Georgia death penalty

by sustaining its revised death penalty law. The

death penalty itself is not cruel and unusual punish-

ment, but a capital case requires two proceedings:

one to determine guilt or innocence and the other to

determine the sentence (Gregg v. Georgia, 1976). Most states will not consider the death sentence for anyone

younger than 15 years of age. In addition, the

Supreme Court has prohibited executing mentally

retarded individuals.

For prisoners, cases based on Eighth Amendment

rights involve cruel and unusual punishment, such

as overcrowding, solitary confinement, corporal

punishment, physical abuse, and use of force; treat-

ment and rehabilitation; the right not to be treated;

and the death penalty.

Discussion Questions 1. What historical background do you suspect led to

the Eighth Amendment being included in the Bill of Rights?

2. If the Bill of Rights does not guarantee the right to bail, how can bail be ensured for those accused of crimes?

3. Explain the basic need for bail.

4. Does the bail system discriminate against the poor?

5. How would you define cruel and unusual punishment? Can you think of any currently lawful punishments you believe are cruel and unusual?

6. Do you support the death penalty? Why or why not? Could you be an executioner or witness to an execution?

7. Should juveniles or mentally retarded individuals receive life in prison for committing a heinous crime?

8. Should juveniles or mentally retarded individuals who have committed capital crimes be executed?

9. Does the death penalty deter murder or rape? Why or why not?

10. Should fines be the same for the poor and the wealthy?

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434 Section IV Due Process: The Fifth, Sixth, and Eighth Amendments

References “Asset Forfeiture.” Washington, DC: U.S. Marshals Fact

Sheet, November 19, 2012. Bohm, Robert M., and Haley, Keith N. Introduction to

Criminal Justice, 4th ed. New York: McGraw-Hill, 2007. Clear, Todd R., and Cole, George F. American

Corrections, 5th ed. Belmont, CA: Wadsworth Publishing Company, 2000.

Clear, Todd R.; Cole, George F.; and Reisig, Michael D. American Corrections, 7th ed. Belmont, CA: Thomson Wadsworth Publishing, 2006.

“Common Lethal Injection Method Upheld in a Supreme Court Ruling.” Criminal Justice Newsletter, May 1, 2008, pp. 1–3.

Ducat, Craig R. Constitutional Interpretation, 9th ed. Belmont, CA: Wadsworth/Cengage Learning, 2010.

“Facts about the Death Penalty.” Washington, DC: Death Penalty Information Center, April 12, 2011.

Fagan, Jeffrey A. Capital Punishment: Deterrent Effects and Capital Costs. New York: Columbia Law School, Center for Crime, Community, and Law, 2010.

Monk, Linda R. The Bill of Rights: A User’s Guide. Alexandria, VA: Close Up Publishing, no date.

Moore, Carole. “Lives Cut Short.” Law Enforcement Technology, February 2010, p. 82.

“Officers Support Death Penalty for Many Murder Cases.” Police, May 2008, p. 14.

Petrocelli, Joseph. “Asset Forfeiture.” Police, February 2010, pp. 22–25.

Saad, Lydia. “U.S. Death Penalty Support Stable at 63%.” Gallup, Inc., January 9, 2013. Retrieved June 29, 2013, from www.gallup.com/poll/159770/death-penalty- support-stable.aspx?version=print.

Treasury Forfeiture Fund, Fiscal Year 2013, President’s Budget Submission. Washington, DC: Department of the Treasury, 2013. Retrieved June 29, 2013, from www.treasury.gov/about/budget- performance/Documents/17%20-%20FY%20 2013%20TEOAF%20CJ.pdf.

Worrall, John L. Asset Forfeiture. Washington, DC: Center for Problem Oriented Policing, March 6, 2009.

Cases Cited Addington v. Texas, 441 U.S. 418 (1979) Arave v. Creech, 507 U.S. 463 (1993) Atkins v. Virginia, 536 U.S. 304 (2002) Austin v. United States, 509 U.S. 602 (1993) Baze v. Rees, 553 U.S. 35 (2008) Bell v. Cone, 535 U.S. 685 (2002) Bennis v. Michigan, 516 U.S. 442 (1996) Brown v. Plata, 563 U.S. ____ (2011) Browning-Ferris Industries v. Kelco Disposal, 472 U.S. 257

(1989) Campbell v. Blodgett, 978 F.2d 1502 (9th Cir. 1994) Coker v. Georgia, 433 U.S. 584 (1977) Eddings v. Oklahoma, 455 U.S. 104 (1982) Estelle v. Gamble, 429 U.S. 97 (1976) Ewing v. California, 538 U.S. 11 (2003) Ford v. Wainwright, 477 U.S. 399 (1986) Furman v. Georgia, 408 U.S. 238 (1972) Graham v. Florida, 560 U.S. ___ (2010) Gregg v. Georgia, 428 U.S. 153 (1976) Harmelin v. Michigan, 501 U.S. 957 (1991) Helling v. McKinney, 509 U.S. 25 (1993) Hope v. Pelzer, 536 U.S. 730 (2002) Ingraham v. Wright, 430 U.S. 651 (1977) Jackson v. Indiana, 406 U.S. 715 (1972) Jones v. United States, 527 U.S. 373 (1999) Knight v. Florida, 528 U.S. 990 (1999) Lockhart v. McCree, 476 U.S. 162 (1986) Lockyer v. Andrade, 538 U.S. 63 (2003) Louisiana ex rel. Francis v. Resweber, 329 U.S. 459

(1947)

Maynard v. Cartwright, 486 U.S. 356 (1988) McCleskey v. Kemp, 481 U.S. 279 (1987) Miller v. Alabama, 567 U.S. ____ (2012) Morgan v. Illinois, 504 U.S. 719 (1992) Overton v. Bazetta, 539 U.S. 126 (2003) Penry v. Lynaugh, 492 U.S. 302 (1989) Pulley v. Harris, 465 U.S. 37 (1984) Rhodes v. Chapman, 452 U.S. 337 (1981) Ring v. Arizona, 536 U.S. 584 (2002) Robinson v. California, 370 U.S. 660 (1962) Roper v. Simmons, 543 U.S. 551 (2005) Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Texas, 1975) Rupe v. Wood, 863 F. Supp. 1307 (W.D. Wash., 1994) Schriro v. Summerlin, 542 U.S. 348 (2004) Simmons v. South Carolina, 512 U.S. 154 (1994) Singleton v. Norris, 124 S.Ct. 74 (2003) Solem v. Helm, 463 U.S. 277 (1983) Stack v. Boyle, 342 U.S. 1 (1951) Stanford v. Kentucky, 492 U.S. 361 (1989) State v. Moore, 520 U.S. 1176 (2006) Thompson v. McNeil, 556 U.S. ___ (2009) Thompson v. Oklahoma, 487 U.S. 815 (1988) Trop v. Dulles, 356 U.S. 86 (1958) United States v. Bajakajian, 524 U.S. 321 (1998) United States v. Good, 510 U.S. 43 (1993) United States v. Hazzard, 598 F. Supp. 1442 (N.D.Ill. 1984) United States v. Salerno, 481 U.S. 739 (1987) United States v. Ursery, 518 U.S. 267 (1996) Whitley v. Albers, 475 U.S. 312 (1986) Wilson v. Seiter, 501 U.S. 294 (1991)

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435

CHAPTER 13

Several states are presently considering whether to pass constitutional amendments legalizing the

use of marijuana, many others already permit use of marijuana for medical purposes, and two

states—Colorado and Washington—have completely legalized recreational use of marijuana, despite

a federal law that makes growing, selling, or possessing any amount of the drug a criminal offense.

The federal government, however, has no power under the U.S. Constitution to override state laws

that legalize marijuana use. Regardless, many federal government officials contend that the

commerce clause of the Constitution does authorize them to regulate this activity. This disconnect

between state and federal law presents considerable challenges for drug enforcement efforts.

The Remaining Amendments and a Return to the Constitution We Justices read the Constitution the only way we can: as twentiet h- century Americans. The genius of the Constitution res ts not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems.

—William Brennan, former Supreme Court Justice

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436 Section V Coming Full Circle

Introduction The amount of material generated by constitutional cases, analysis, and

research is astounding. Of course, because the Constitution affects every

American’s daily life, the fact that so many are intrigued by it should come as

no surprise. The USA PATRIOT Act proposed legislation to make flag desecra-

tion illegal and what seems like continuing sagas of high-powered business

people and celebrities running afoul of the law maintain people’s interest in the

Constitution and the U.S. legal processes. Although the amendments addressed

thus far have generated the most attention, in an examination of the Constitu-

tion we must look at the other amendments as well to understand the document

as a whole.

The amendments discussed so far are probably the best-known amendments in

the Bill of Rights and those best suited for students beginning their study of this

area of law. To complete your understanding of the Constitution and its amend-

ments, this chapter presents the four remaining amendments of the Bill of Rights,

followed by a brief look at the other amendments that have been made to the Con-

stitution. The chapter concludes with a discussion of the various other attempts

made to pass constitutional amendments.

As you read, keep in mind the analogy of the U.S. Constitution as a frame-

work that provides the basis on which all U.S. law is built. Many subareas of the

Constitution can be examined. Those selected for inclusion in this text should

help tie together your studies at the basic level, as they themselves help tie

together this workable, complex document. Remember, however, that there is

much more to this fascinating document than time and space allow in this intro-

ductory text.

Do You Know . . .

Can You Define? delegated powers

federalism

reserve powers

selective incorporation

suits at common

law

■ What the Third Amendment established?

■ What the Seventh Amendment established?

■ What determines whether a person is entitled to a federal jury trial in

a civil case?

■ What the Ninth Amendment established?

■ Whether the Ninth Amendment guarantees the right of privacy?

■ What the Tenth Amendment established?

■ What amendment allows the Supreme Court to make other

amendments applicable to the states?

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Chapter 13 The Remaining Amendments and a Return to the Constitution 437

The Remaining Amendments to the Bill of Rights Four amendments in the Bill of Rights remain to be discussed: the Third, Seventh,

Ninth, and Tenth.

The Third Amendment

No Soldier shall, in time of peace, be quartered in any house, without the

consent of the Owner, nor in time of war, but in a manner to be prescribed

by law.

Although the Third Amendment has never been subjected to

Supreme Court review, it holds historical relevance and stands for

the general principle that government is to leave people alone

without compelling cause. This amendment dates back to colonial

times, when England expected the citizenry to feed and shelter

British soldiers. Although history, it is history that remains impor-

tant to the U.S. Constitution as an example of the framers’ insis-

tence on curtailing excessive government authority.

The Seventh Amendment

In Suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be preserved,

and no fact tried by a jury, shall be otherwise re-examined in any

Court of the United States, than according to the rules of the com-

mon law.

Recall that the Sixth Amendment guaranteed a jury trial for all

criminal proceedings. The Seventh Amendment extends this right

to civil proceedings involving more than $20, a large sum in 1791, when the Bill of

Rights was passed. Incidentally, that amount would convert to roughly $450 in

today’s economy.

Suits at common law means a legal controversy arising out of civil law rather

than criminal law. The difference is easiest to observe in the caption (or title) of the

case, which, at the trial court level, would always be the government (e.g., the city, county, or state v., or the United States v., the specific defendant in a criminal case). In a civil case, the caption would have the name of one party v. the name of the other party. The caption of a case indicates the parties involved. The citation of the

case indicates where the judicial opinion could be located. The criminal system

ensures the protection of rights everyone enjoys, whereas the civil system ensures

rights that one person has against another.

The issues involved in civil cases become as complex as those for criminal mat-

ters, and because of the complexity of our emerging society, civil cases may be more

complex. Although the importance of the outcome in criminal cases is obvious, civil

disputes often involve large sums of money, contracts, and other business matters,

the ownership of land or other property, the rights to patents, the custody of chil-

dren, divorces, wills, and an almost endless list of other issues that greatly affect

those involved.

suits at common law legal controversies arising out of

civil law rather than criminal law

The Third Amendment prohibits housing soldiers in private homes during peacet ime without the owner’s consent and during wartime without legal process .

The Seventh Amendment es tablishes the right to a federal jury trial for all “suits at common law” if the value is more than $20.

MYTH Criminal cases are, by nature,

always more complex than civil

cases.

REALITY Civil cases are often as complex,

and in some cases more complex,

than criminal cases.

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438 Section V Coming Full Circle

The Seventh Amendment addresses when an individual (not the government or

a criminal defendant) is entitled to a federal jury trial (not a local or state court). The reasons people would prefer having their cases heard before one court or another

or before a jury or only a judge are tactical. Some think a federal court is more

impartial and, thus, more fair than courts at a local or state level. Some think that a

jury would help their cause; others think it would hinder their cause. However,

both the Constitution and federal law have established what cases federal courts

can hear, and different procedures can apply at the different levels of courts. Where

and how a case is handled is just one example of the many decisions attorneys face

in best representing their clients.

This amendment was included in the Bill of Rights out of fairness. At issue was

the distinction between types of cases in England, which found their way into U.S.

law. It was important to differentiate among the types of cases that might be pursued

in actions at law or in equity, affecting which court would have jurisdiction over what

type of case. A court of law was a court that handled cases in which damages were

sought. A court of equity, in contrast, handled suits in which something else was

sought, such as specific performance, an injunction, or other special remedies. These

terms may sound awkward because they have seldom been used since 1791. How-

ever, the Constitution is based on the legal history of those who brought their ideas to

the United States, and subsequent courts tend not to change the basic legal concepts

too drastically. The challenge has been for the courts to interpret this amendment in a

way that serves a practical purpose, while maintaining its historical significance.

The Supreme Court and others have acknowledged that Seventh Amendment

analysis is mostly historical, although cases occasionally arise, mostly dealing with

whether certain facts warrant a jury trial at all. Today the practical approach to deter-

mining whether there is a Seventh Amendment right to a federal jury trial is based

on whether a suit involves legal issues similar to issues raised in cases for which

federal jury trials were granted by common law. Whether there is a Seventh Amend-

ment right to a federal jury trial is based mainly on historical analysis of common law.

In Thomas v. Union Carbide (1985), the Court held there was no right to a jury trial when Congress had created other administrative remedies. Conversely, in Curtis v. Loether (1974), the Court overturned a lower court’s ruling that a Black woman was not permitted a jury trial when a White landlord refused to rent to her contrary to

the Fair Housing Act. In Colgrove v. Battin (1973), the Court said that six-person juries were permissible in federal civil trials. These cases illustrate how common

law marches on to carve out further nuances of the system, even

in areas presumed to be historically dormant.

The Seventh Amendment is an excellent example of how the

framers of the Constitution included both what they considered

important to them at the time and what they thought would be

important in the future, and how even an amendment may be

resurrected when the facts of a modern case demand.

The common law provides answers by examining previous

cases to analyze current-day facts.

The Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to

deny or disparage others retained by the people.

Cases that involve iss ues that justify a Seventh Amendment right to a federal jury trial are det ermined by examining the types of cases heard previously or by a common law analysis.

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Chapter 13 The Remaining Amendments and a Return to the Constitution 439

The Ninth Amendment highlights the founders’ beliefs that government’s pow-

ers are limited by the rights of the people, not the other way around. The Ninth

Amendment’s significance is also largely historical. Through the Ninth Amend-

ment, the framers addressed concerns that Americans would retain only those

rights enumerated in the Constitution. Among those who did not want a Bill of

Rights was James Madison. Madison was against an enumerated Bill of Rights, but

he argued for the Ninth Amendment to ensure that the Bill of Rights would not, in

fact, exclude those rights not listed.

The framers made an important statement with the Ninth Amendment, as

explained by Supreme Court Justice Potter Stewart in his dissenting opinion in

Griswold v. Connecticut (1965): “The Ninth Amendment, like its companion the Tenth, which this Court held [in United States v. Darby, 1941] ‘states but a truism that all is retained which has not been surrendered,’ . . . was framed by James Madison

and adopted by the States simply to make clear that the adoption of the Bill of

Rights did not alter the plan that . . . the Federal Government was to be a govern-

ment of express and limited powers, and that all rights and powers not delegated

to it were retained by the people and the individual States.”

The Ninth Amendment has been referred to on occasion as the forgotten

amendment in the Bill of Rights because it is seldom used as a basis for Supreme

Court decisions. Some believe that judges have been reluctant to rely on the Ninth

Amendment because its language is vague, never defining what specific rights are

protected. The Court has referred to the Ninth Amendment in a handful of cases,

but the Ninth Amendment has never been the basis of a decision by a majority of

the justices. Although the Supreme Court has protected rights not listed in the Bill

of Rights, it has not used the Ninth Amendment to do so. This amendment, again,

serves as an example of the discussion and interpretations the Constitution contin-

ues to generate, particularly by those who assert that the interpretation be made in

their own favor.

The Ninth Amendment has also generated significant controversy and much

scholarly debate as to what the framers meant and intended with this amendment,

serving as an example of how the Constitution does not always provide specific or

easy answers.

Although seldom relied on, the Ninth Amendment will remain grounds for the

belief that rights not specifically referred to within the Constitution are no less pro-

tected. Take a moment to consider all the choices people make during their life-

times: marriage; raising children; how families are created; what the definition of a

family is; where to live, travel, and recreate; the business entered or begun; and,

quite literally, every step throughout life. There is no way anyone could list them or

the framers of the Constitution could have predicted what the future would hold.

However, through the Ninth Amendment’s existence, Americans are assured they

will continue to be free to pursue those interests that government does not demon-

strate a compelling reason to restrict.

The makers of our Constitution undertook to secure conditions favorable to the

pursuit of happiness. They recognized the significance of man’s spiritual nature,

of his feelings and his intellect. They knew that only a part of his pain, pleasure

and satisfactions of life are to be found in material things. They sought to protect

Americans in their beliefs, their thoughts, their emotions and their sensations.

They conferred, as against the Government, the right to be let alone—the most

The Ninth Amendment es tablished that the rights of U.S. citizens extend beyond those list ed in the Constitution.

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440 Section V Coming Full Circle

comprehensive of rights and the right most valued by civilized men. (Olmstead v. United States, 1928)

The Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohib-

ited by it to the States, are reserved to the States respectively, or to the people.

Under federalism, power is shared by the national govern-

ment and the states. The U.S. Constitution established a federal

system to preserve the existing state governments, while creating

a new national government strong enough to deal with the coun-

try’s problems. A controversial question at the Constitutional

Convention was just how much power the national government

should have. A primary limit was that the government was one of

the enumerated powers, powers specifically listed in the Constitu-

tion. However, the Constitution also included an Elastic Clause

stating that Congress had the power to make all laws “necessary and proper” to

carry out its enumerated powers. The Necessary and Proper Clause became the

basis for the implied powers, those powers not specifically listed in the Constitu-

tion that are implied by the enumerated powers.

The Necessary and Proper Clause is the final provision (Clause 18) of Article 1,

Section 8, the part of the Constitution dealing with the powers of Congress. Recall

from Chapter 6 the brief discussion of the Commerce Clause (Article 1, Section 8,

Clause 3), another enumerated power provided by the Constitution. The Com-

merce Clause is often paired with the Necessary and Proper Clause to form the

basis of much federal law.

The powers of the national government, both enumerated and implied, are

known as the delegated powers because they were delegated or entrusted to

the national government by the states and the people. The powers kept by the

states are known as the reserve powers. The Tenth Amendment refers to both

types of powers. A primary reserve power is police power, which enables the

state to pass laws and regulations that involve the public health, safety, morals,

and welfare.

Although the Constitution recognizes both the powers of the states and the

federal government, it contains the Supremacy Clause in Article 6, which states that

the Constitution of the United States is “the supreme law of the land.” The Tenth

Amendment attempted to strike a balance between the federal government’s power

and that of the states, while maintaining individual freedom. That balance has not

always been easy to maintain throughout U.S. history. During one such difficult

period, only a bloody civil war finally resolved the question of federal versus state

power. Since the Civil War, the Supreme Court has worked hard to find the proper

balance of the Tenth Amendment.

Madison’s version of the Tenth Amendment made clear that any powers not

delegated to the federal government belonged to the states or to the people. How-

ever, some members of Congress wanted the Tenth Amendment to limit the federal

government to those powers specifically listed in the Constitution, just as the Arti-

cles of Confederation had done. They wanted the Tenth Amendment to say that

powers not expressly delegated to the U.S. government were reserved to the states.

delegated powers powers of the national government, both

enumerated and implied by legal

authority, delegated or entrusted

to the national government by the

states and the people

reserve powers powers retained by the states

The Tenth Amendment embodies the principle of federalism, res erving for the states those powers not granted to the federal government or withheld fr om the states .

federalism a principle whereby power is shared by the

national government and the

states; the Tenth Amendment

provision reserving for the states

those powers not granted to the

federal government or withheld

from the states

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Chapter 13 The Remaining Amendments and a Return to the Constitution 441

Madison believed it was impossible to confine a government to the exercise of

expressed powers and that there must necessarily be powers by implication.

Unlike the other amendments, the Tenth Amendment does not ensure specific

individual rights. Rather, it seeks to ensure to all people that the federal govern-

ment will not get too powerful. In Federalist Papers No. 51, Madison (1788) stated: “In the compound republic of America, the power surrendered by the people is first

divided between two distinct governments, and then the portion allotted to each

subdivided among distinct and separate departments. Hence a double security

arises to the rights of the people. The different governments will control each other,

at the same time that each will be controlled by itself.”

Historically, the Constitution came to be as a result of fear that federal

government might become too powerful. Recognizing the need for a balanced

government, a government that could run the nation but leave individualism to the

states and their people, the Tenth Amendment sought to strike this balance.

The Framers also wanted to ensure government accountability to the citizenry. The

necessity for those who legislate to be held accountable to the citizens is removed

if state or local officials are forced into implementing federal law because it relieves

the federal government from responsibility, both financially and materially from

the burdens or inadequacies of the law. The system, thus, was designed such that a

state government is responsible to its citizens. In addition, the federal government

regulates people, not states. An example of this concept is Printz, discussed shortly. The concept behind the Tenth Amendment was important enough that it was

the only amendment agreed on by all the states recommending a Bill of Rights. Like

the Ninth Amendment, the Tenth Amendment shows the colonists’ concern that

specific limitations on the federal government could mean such a government had control over all other areas.

The Tenth Amendment’s road has been rocky compared with that of other

amendments. The question of what power federal government has and what goes to the states has challenged the government. Before the Constitution was ratified,

the states were sovereign governmental bodies that acted much like separate coun-

tries. They issued their own money, set their own tax plans, and interacted with the

other states as they saw fit. Although unity had benefits, the concern of “too much”

national power had to be addressed before the country could agree on a central

constitution. The framers addressed this issue through the Tenth Amendment,

together with equal representation in the Senate, which was of particular impor-

tance to the smaller states.

Over the years, the federal government became stronger, and although con-

cerns of there being excessive power continue today, a series of Supreme Court

cases carved out the role of national government. In 1819 in McCulloch v. Maryland, the Court made its strongest assertion of the government’s broad national power when it held that Congress had the authority to establish a

national bank pursuant to the Necessary and Proper Clause of Article I, Section 8

of the Constitution. Before this decision, the Supremacy Clause of Article VI

authorized only specific authority.

The national government’s authority and power continued to grow, much to the

concern of some. United States v. Darby (1941) upheld the Fair Labor Standards Act of 1938, and the limits that the Tenth Amendment was intended to set on expansion

of federal authority seemed to have been forgotten.

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442 Section V Coming Full Circle

Like a pendulum, more recent cases have indicated the high court’s willingness

to reconsider, or at least limit, a never-ending expansion of federal power. A signifi-

cant case in 1992 involving federal regulations of radioactive waste, New York v. United States, resulted in the Court stating, “No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to

require the states to regulate.” The Court, citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. (1981), emphasized in this case that Congress may not simply “commandee[r] the legislative processes of the States by directly compelling them

to enact and enforce a federal regulatory program.” The Court added that although

Congress has substantial powers to govern, even in areas that affect the state level,

“the Constitution has never been understood to confer upon Congress the ability to

require the States to govern according to Congress’ instructions.” This ruling high-

lights a constitutional boundary for federal legislation: when the federal govern-

ment goes too far and their legislative intentions transform from ones of

encouragement to ones of coercion, the legislation is unconstitutional.

The crucial issue of federalism was addressed in United States v. Lopez (1995), a Com- merce Clause case in which the Court invalidated an act of Congress for the first time

in 50 years, raising important issues of federal versus states’ rights. When Congress

enacted the Gun-Free School Zones Act of 1990, it made a federal offense of anyone

knowingly possessing a firearm in an area the person knows to be a school zone. A

12th-grade student was convicted under this law for carrying a concealed .38-caliber

handgun and bullets at school. The Fifth Circuit Court of Appeals reversed the convic-

tion, holding the act was invalid because Congress had exceeded its authority. Chief

Justice William H. Rehnquist delivered the Court’s opinion, which said, in part,

To uphold the Government’s contentions here, we would have to pile inference

upon inference in a matter that would bid fair to convert congressional authority

under the Commerce Clause to a general police power of the sort retained by the

States. . . . The broad language in these opinions has suggested the possibility of

additional expansion, but we decline here to proceed any further. To do so

would require us to conclude that the Constitution’s enumeration of powers

does not presuppose something not enumerated . . . and that there never will be

a distinction between what is truly national and what is truly local.

In Printz v. United States (1997), the Supreme Court struck down that portion of the Brady Bill compelling local law enforcement to perform background checks on

applicants for handgun ownership. The Court held the requirement violated “the

very principle of separate state sovereignty.”

Those studying the Constitution will find it of interest in which direction future

cases will call the Tenth Amendment into consideration and how these cases will

be decided. Before moving on to amendments that follow the first 10, consider the

statement in West Virginia State Board of Education v. Barnette (1943), in answer to what makes up the Bill of Rights: “We set up government by consent of the gov-

erned, and the Bill of Rights denies those in power any legal opportunity to coerce

that consent. Authority here is to be controlled by public opinion, not public opin-

ion by authority.”

Although the Ninth and Tenth Amendments are not considered guarantees of

specific individual freedoms, some refer to the first eight amendments as the Bill of

Rights. However, the Bill of Rights presents a “package” of rights that remain viable

CASE IN BRIEF

United States v. Lopez (1995)

ISSUE Is the 1990 Gun-Free School Zones Act unconstitutional

because it exceeds the power of

Congress?

RULING Yes. The connection to commerce is too slim for

Congress to pass legislation

based on the power given to it by

the Commerce Clause.

CASE IN BRIEF

Printz v. United States (1997)

ISSUE Can Congress mandate that state and local law

enforcement agencies conduct

background checks on prospec-

tive handgun purchasers?

RULING No. Compelling state and local officials to perform the

background checks violates state

sovereignty.

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Chapter 13 The Remaining Amendments and a Return to the Constitution 443

because of the balance of the system at the federal and local levels. As eloquently

described by Cardozo (1928), “Bills of Rights give assurance to the individual of the

preservation of his liberty. They do not define the liberty they promise.”

Amendments beyond the Bill of Rights The Bill of Rights lays a foundation for individual freedoms, but these freedoms do

not stop with the Tenth Amendment. Since 1791, when the first 10 amendments

were ratified, until the present, our Constitution has continued to evolve. As proof

of the Constitution’s ability to respond to the nation’s needs, additional amend-

ments have come, and some have gone. Following is a brief overview of the remain-

ing amendments, including those that have been repealed.

The Eleventh Amendment (1795)

The Eleventh Amendment deals with the extent of the judicial power of the United

States:

The Judicial power of the United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of any Foreign State.

This amendment is the only one that deals with the judicial power of the federal

government and is actually more an administrative directive. The history of the

Eleventh Amendment is noteworthy in that it was introduced the day after the high

court ruled in Chisholm v. Georgia (1793) that a citizen of one state had the right to sue another state. The ruling does not mean, however, that a citizen cannot sue a

local or municipal government or a state official in federal court. In ex parte Young (1908), the Court held that a state cannot act unconstitutionally, but a state official

(as an individual) can act unconstitutionally.

The Thirteenth Amendment (1865)

A key amendment to the Constitution is the Thirteenth Amendment, which abol-

ished slavery, as previously discussed:

Neither slavery nor involuntary servitude, except as a punishment for crime

whereof the party shall have been duly convicted, shall exist within the United

States, or any place subject to their jurisdiction.

Congress shall have power to enforce this article by appropriate legislation.

The Thirteenth Amendment overturned the Supreme Court’s Dred Scott deci- sion (1857). Using an amendment to overturn a specific Supreme Court decision is

rare, dramatic, and a good illustration of the checks and balances in the U.S. gov-

ernment. Closely related to this amendment is the Fourteenth Amendment.

The Fourteenth Amendment (1868)

To review from Chapter 4, the Fourteenth Amendment asserts

All persons born or naturalized in the United States, and subject to the jurisdic-

tion thereof, are citizens of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge the privileges or

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444 Section V Coming Full Circle

immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty or property, without due

process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

As has been addressed throughout this text, a significant

portion of the Bill of Rights amendments has been made to

apply to the states as well. Table 13.1 summarizes the cases

incorporating provisions of the Bill of Rights into the Due Pro-

cess Clause of the Fourteenth Amendment, as well as those that

remain unincorporated. The Fourteenth Amendment’s Due

Process Clause and the concept of selective incorporation are especially important

in considering individual civil liability issues.

Amendments Related to Elections and Structure of Congress

Not all amendments and other portions of the Constitution deal directly with

specific rights and liberties. Any successful entity needs basic administrative

guidelines to function properly, and these are found in the Constitution as well.

Seven amendments deal in detail with numerous matters related to how the

federal government is to be structured and its officials elected. Following is a

brief summary of these amendments. The full text of each is presented in

Appendix A.

The Supreme Court has chosen, through case law and common law, to select ively app ly certain amendments to bot h federal and state governments through select ive incorporation, as stipulated in the Fourteenth Amendment.

selective incorporation holds that only the provisions of

the Bill of Rights that are

fundamental to the U.S. legal

system are applied to the states

through the Due Process Clause

of the Fourteenth Amendment

Table 13.1 Cases Incorporating Provisions of the Bill of Rights into the Due Process Clause

of the Fourteenth Amendment

First Amendment

Establishment of religion Everson v. Board of Education 1947

Free exercise of religion Cantwell v. Connecticut 1940

Freedom of speech Gitlow v. New York 1925

Freedom of the press Near v. Minnesota 1931

Freedom to peaceably assemble DeJonge v. Oregon 1937

Freedom to petition government Hague v. CIO 1939

Second Amendment

Right to keep and bear arms McDonald v. Chicago 2010

Fourth Amendment

Unreasonable search and seizure Wolf v. Colorado 1949

Exclusionary rule Mapp v. Ohio 1961

Fifth Amendment

Grand jury Not Incorporated

No double jeopardy Benton v. Maryland 1969

No self-incrimination Malloy v. Hogan 1964

Compensation for taking private property Chicago, Burlington & Quincy Railroad v. Chicago 1897

Sixth Amendment

Speedy trial Klopfer v. North Carolina 1967

Public trial In re Oliver 1948

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Chapter 13 The Remaining Amendments and a Return to the Constitution 445

Impartial jury Parker v. Gladden 1966

Jury trial Duncan v. Louisiana 1968

Venue Not Incorporated

Notice Cole v. Arkansas 1948

Confrontation of witnesses Pointer v. Texas 1965

Compulsory process Washington v. Texas 1967

Assistance of counsel Powell v. Alabama (capital cases) 1932

Gideon v. Wainwright (noncapital felony cases) 1963

Argersinger v. Hamlin (most misdemeanor cases) 1972

Seventh Amendment

Jury trial in civil cases Not Incorporated

Eighth Amendment

No excessive bail Not Incorporated

No excessive fines Not Incorporated

No cruel and unusual punishment Robinson v. California 1962

Ninth Amendment

“Privacy” Griswold v. Connecticut 1965

*The word privacy does not appear in the Ninth Amendment (nor anywhere in the Constitution), but in Griswold several justices viewed the

Ninth Amendment as guaranteeing that right.

Source: Adapted from Ferdico, John; Fradella, Henry F.; and Totten, Christopher. Criminal Procedure for the Criminal Justice Professional, 11E, 2012. Wadsworth, a part of Cengage Learning, Inc. Reproduced by permission, www.cengage.com/permissions.

Table 13.1 (Continued)

The Twelfth Amendment (1804) established the electoral system by which the

President and Vice-President are chosen. Given the extreme controversy generated

by the 2000 presidential election—with Al Gore winning the popular vote and

George W. Bush the electoral college vote and, therefore, the presidency—this sys-

tem might come under close scrutiny in the future. Bush v. Gore (2000) is an apt illustration of the struggle to maintain the balance of power and to determine which

branch of government at what level has the power to do what during elections.

The Fourteenth Amendment (1868) established how representatives are appor-

tioned and what their qualifications are.

The Seventeenth Amendment (1913) describes how the U.S. Senate is to be com-

posed, the qualifications required, and how vacancies are to be filled.

The Twentieth Amendment (1933) established that the terms of the President

and Vice-President end at noon on the 20th day of January and that the terms of

senators and representatives end at noon on the 3rd day of January. It also estab-

lished how often Congress meets and the chain of succession if the President is no

longer able to carry out the responsibilities of the office.

The Twenty-Second Amendment (1951) restricted the term of presidency to two

terms.

The Twenty-Third Amendment (1961) gave representation to the district that

constitutes the seat of government of the United States—that is, to the District of

Columbia.

The Twenty-Fifth Amendment (1967) established procedures for filling vacan-

cies and for actions to take should the President be unable to “discharge the powers

MYTH The Constitution limits the num-

ber of times a person may serve

as President of the United States

to two four-year terms.

REALITY The two-term limit was not

defined until passage of the

Twenty-Second Amendment

in 1951. Prior to that, Franklin

Delano Roosevelt had been the

first and only president to serve

more than two terms, dying in

office several months into his

fourth term.

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446 Section V Coming Full Circle

and duties” of the office. Considering U.S. Presidents are larger-than-life figures,

the unthinkable first occurred when William Harrison died after just one month as

President in 1841 and Vice-President John Tyler simply took it on himself to assume

the presidency. The Twenty-Fifth Amendment was first proposed after President

John F. Kennedy’s assassination and provides an official process by which the Vice-

President may assume power if the President is unable.

The Twenty-Seventh Amendment (1992) states, “No law, varying the compensa-

tion for the services of the Senators and Representatives, shall take effect, until an

election of Representatives shall have intervened.” This amendment’s purpose is to

prevent Congress from setting its own salary because of the apparent conflict of

interest. Nonetheless, Congress has continued to give itself cost-of-living raises,

which has not been considered the same as an actual raise.

The preceding amendments, along with portions of the Constitution, are impor-

tant in that they provide the basic administrative and operational bases through

which an orderly government will operate. Above all, it remains important to

understand that, like a set of directions for any piece of complex machinery, these

guidelines provide people with the ability to make something work that would not

be possible without such a reference.

Voting Rights

The ability of the Constitution to reflect society’s changing needs is well illustrated

in the amendments broadening the right to vote, which, initially, was reserved for

White males older than 21 years.

The Fifteenth Amendment (1870) required that the right to vote shall not be

denied or abridged because of race, color, or previous condition of servitude. In

other words, Black males were given the vote. Section 2 of this amendment gives

Congress the power to enforce the right by “appropriate legislation.”

The Voting Rights Act (VRA) of 1965, which has been renewed several times,

most recently in 2006 for another 25 years, is an example of such legislation and was

at the heart of recently decided Shelby County v. Holder (2013). The VRA was intended to prevent racially motivated voting laws from being enacted in states that histori-

cally passed such legislation. Section 5 of the Act directs certain jurisdictions to

obtain “preclearance” from either the U.S. Department of Justice or the federal dis-

trict court before modifying their voting laws, and Section 4 of the Act contains a

formula used to determine which state and local jurisdictions come under Section 5.

In Shelby County, a 5–4 Court held that the coverage formula used in Section 4, and most recently updated in 1975, was unconstitutional, with Chief Justice John Roberts

writing that the current system is “based on 40-year-old facts having no logical rela-

tionship to the present day.” With Section 4 invalidated, Section 5 is effectively

without consequence. What the majority opinion emphasized was the fact that the

law is no longer tied to current voting discrimination. The conditions that existed

when the act was first passed do not exist today and, therefore, do not justify the

extreme interference of the federal government into matters concerning local elec-

tions processes.

The Nineteenth Amendment (1920) required that the right to vote should not be

denied on account of sex. Women finally got the vote, 50 years after Black males.

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Chapter 13 The Remaining Amendments and a Return to the Constitution 447

The Twenty-Fourth Amendment (1964) requires that the right to vote should not

be denied or abridged by reason of failure to pay any poll tax or other tax.

The Twenty-Sixth Amendment (1971) lowered the voting age, giving the vote to

U.S. citizens 18 years of age and older.

Taxes

The Sixteenth Amendment (1913) established the federal income tax: “The Con-

gress shall have power to lay and collect taxes on incomes, from whatever source

derived, without apportionment among the several States, and without regard to

any census or enumeration.”

Prohibition

An excellent example of how the Constitution, through the amendment process,

can adjust and change to reflect society’s wishes is the Eighteenth Amendment

(1919), which prohibited the sale and purchase of “intoxicating liquors.” This pro-

hibition was ignored by many, with speakeasies opening and gangsters profiting

from the illegal sale of liquor. Hundreds of thousands of law enforcement hours

and dollars were spent trying to enforce this amendment, but in the end, enforce-

ment was seen as hopeless because it was not what the people wanted. Therefore,

the Twenty-First Amendment (1933) was ratified, repealing the “eighteenth article

of amendment to the Constitution.”

Attempts at Other Amendments Over the years, various amendments have been proposed espousing different

views considered important. For example, Congress has considered amendments

prohibiting the burning of the U.S. flag and amendments establishing victims’

rights. Although both proposals have been repeatedly defeated, they are likely to

be brought up again and serve as yet another example of how change in constitu-

tional law comes about.

California was the first state to pass a victims’ rights constitutional amendment

in 1982, followed by Florida in 1988. Since then, 30 other states have passed victims’

rights constitutional amendments, as shown in Table 13.2.

In 2000, a constitutional amendment failed to win Senate approval, but it was

reintroduced in 2003. On June 12, 2003, a Senate subcommittee approved a proposal

to amend the Constitution to guarantee rights to crime victims: “Supporters argue

that only a constitutional amendment will elevate the rights of crime victims and

ensure that judges and prosecutors heed them. Some critics, including the ranking

Democrat on the subcommittee, Russell Feingold of Wisconsin, would rather see

Congress first try to enact victims’ right protections statutorily instead of through a

constitutional amendment, which would be more difficult to change later on”

(Boyter, 2003, p. 8). Any proposed constitutional amendment requires a two-thirds

vote of approval by both the House and Senate. Once the proposed amendment

clears Congress, it must then be ratified by at least 38 states to become a constitu-

tional amendment.

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448 Section V Coming Full Circle

In 2003, a proposal to amend the Constitution to prohibit gay marriages was

being talked about. Until now, individual states, not the federal government, have

been responsible for deciding their own family law and policy. And in light of the

Court’s recent rulings in same-sex marriage cases, judicial opinion seems to sway

in favor of allowing states to continue such legislative independence. Although

some argue that this tradition has resulted in a confusing patchwork of laws, a

persuasive argument against such an amendment is that for the first time in our

history, an amendment would deny rights to a group of people rather than expand

them.

However, because of the extraordinary importance a basic document such as

our Constitution holds, Congress has been, and continues to be, reluctant to make

significant changes by adding amendments.

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories . . . even the prejudices which judges share with their fellow men . . . have a good deal in determining the rules by which men should be governed.

—Chief Justice Oliver Wendell Holmes, Jr., U.S. Supreme Court

Table 13.2 History of State Victims’ Rights Constitutional Amendments

State Year Passed

Electoral

Support (%) State Year Passed

Electoral

Support (%)

Alabama 1994 80 Nebraska 1997 78

Alaska 1994 87 Nevada 1996 74

Arizona 1990 58 New Jersey 1991 85

California 1982; renewed

in 2008

56 New Mexico 1992 68

Colorado 1992 86 North Carolina 1996 78

Connecticut 1996 78 Ohio 1994 77

Florida 1988 90 Oklahoma 1996 91

Idaho 1994 79 Oregon 1999 58

Illinois 1992 77 Rhode Island 1986 *

Indiana 1996 89 South Carolina 1996 89

Kansas 1992 84 Tennessee 1998 89

Louisiana 1998 68 Texas 1989 73

Maryland 1994 92 Utah 1994 68

Michigan 1988 80 Virginia 1996 84

Mississippi 1998 93 Washington 1989 78

Missouri 1992 84 Wisconsin 1993 84

*Passed by Constitutional Convention.

Source: Adapted from 2011 National Center for Victims of Crime, www.ncvc.org.

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Chapter 13 The Remaining Amendments and a Return to the Constitution 449

Summary Four additional important amendments of the Bill

of Rights are the Third, Seventh, Ninth, and Tenth

Amendments. The Third Amendment prohibits

housing soldiers in private homes during peace-

time without the owner ’s consent and during

wartime without legal process. The Seventh

Amendment establishes the right to a federal jury

trial for all “suits at common law” if the value is

more than $20. Cases that involve issues that justify

a Seventh Amendment right to a federal jury trial

are determined by examining the types of cases

heard previously or by a common law analysis. The

Ninth Amendment established that the rights of

U.S. citizens extend beyond those listed in the Con-

stitution. The right of privacy has been referred to

by the Supreme Court and has been used to infer

such a right, but the Ninth Amendment does not

guarantee this right. The Tenth Amendment

embodies the principle of federalism, reserving for

the states those powers not granted to the federal

government or withheld from the states.

The Supreme Court has chosen, through case law

and common law, to selectively apply certain amend-

ments to both federal and state governments through

selective incorporation, as stipulated in the Four-

teenth Amendment.

Discussion Questions 1. Discuss why the framers of the Constitution

probably thought it necessary to include the Ninth and Tenth Amendments.

2. With reference to Question 1, would only one or the other have been sufficient? If you were to eliminate the Ninth or Tenth Amendment, which would it be and why?

3. Could the United States not have a federal government? What about a much less powerful federal government, and if so, what would this government do?

4. Having come this far in your study of constitutional law, do you think the United States could ever get along without a written constitution?

5. Does the Constitution work as well as it was meant to? Why or why not?

6. Is there any way an internal military dictatorship could take over the present government in the United States and be successful?

7. Is there a present-day concern that the national government is too powerful?

8. If you were to eliminate any portions of the Constitution, which would they be? Why?

9. If you were to propose any new amendments, what would they be?

10. Imagine that a time machine would permit those who conceived the Constitution to be present today. What would they think about how their prescription for freedom has endured the challenges of time? What might they not be pleased with, constitutionally?

References Boyter, Jennifer. “Subcommittee Approves

Victims’ Rights Amendment.” The Police Chief, July 2003, p. 8.

Cardozo, Benjamin N. The Paradoxes of Legal Science. New York: Columbia University Press, 1928.

Madison, James. “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” Federalist Papers No.51, February 8, 1788. Retrieved June 30, 2013, from http://thomas.loc.gov/home/histdox/ fed_51.html.

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450 Section V Coming Full Circle

Cases Cited Argersinger v. Hamlin, 407 U.S. 25 (1972) Benton v. Maryland, 395 U.S. 784 (1969) Bush v. Gore, 531 U.S. 98 (2000) Cantwell v. Connecticut, 310 U.S. 296 (1940) Chicago Burlington & Quincy Railroad v. Chicago, 166

U.S. 226 (1897) Chisholm v. Georgia, 2 U.S. 419 (1793) Cole v. Arkansas, 333 U.S. 196 (1948) Colgrove v. Battin, 413 U.S. 149 (1973) Curtis v. Loether, 415 U.S. 189 (1974) DeJonge v. Oregon, 299 U.S. 353 (1937) Dred Scott v. Sandford, 60 U.S. 393 (1857) Duncan v. Louisiana, 391 U.S. 145 (1968) Everson v. Board of Education, 330 U.S. 1 (1947) ex parte Young, 209 U.S. 123 (1908) Gideon v. Wainwright, 372 U.S. 335 (1963) Gitlow v. New York, 268 U.S. 652 (1925) Griswold v. Connecticut, 381 U.S. 479 (1965) In re Oliver, 333 U.S. 257 (1948) Hague v. CIO, 307 U.S. 496 (1939) Hodel v. Virginia Surface Mining & Reclamation Assn.,

Inc., 452 U.S. 264 (1981)

Klopfer v. North Carolina, 386 U.S. 213 (1967) Malloy v. Hogan, 378 U.S. 1 (1964) Mapp v. Ohio, 367 U.S. 643 (1961) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) McDonald v. Chicago, 561 U.S. ___ (2010) Near v. Minnesota, 283 U.S. 697 (1931) New York v. United States, 505 U.S. 144 (1992) Olmstead v. United States, 277 U.S. 438 (1928) Parker v. Gladden, 385 U.S. 363 (1966) Pointer v. Texas, 380 U.S. 400 (1965) Powell v. Alabama, 287 U.S. 45 (1932) Printz v. United States, 521 U.S. 898 (1997) Robinson v. California, 370 U.S. 660 (1962) Shelby County v. Holder, 570 U.S. ____ (2013) Thomas v. Union Carbide, 473 U.S. 568 (1985) United States v. Darby, 312 U.S. 100 (1941) United States v. Lopez, 514 U.S. 549 (1995) Washington v. Texas, 388 U.S. 14 (1967) West Virginia State Board of Education v. Barnette, 319

U.S. 624 (1943) Wolf v. Colorado, 338 U.S. 25 (1949)

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451

An inescapable conclusion to be drawn from studying the history of the U.S. Con-

stitution is that it will not remain static. The people of the United States would not

allow that. Americans are demanding of their law, and the fact that the Constitution

has the built-in ability to change as demanded by its citizens reflects this important

component of the nation’s law.

The basic freedoms set forth in the Constitution shall remain because they are

the cornerstones on which the United States was built. Freedom of speech and reli-

gion, the right to assemble and speak up, and freedom from unreasonable govern-

ment intrusions will stand the tests of time. But change itself will continue. It has

to. As the country and the needs of its people have changed with time, so will the

laws that support this society.

However, the basic mechanisms by which law can change will be maintained.

That’s what the Constitution is about—providing the predictability that ensures a

continuation of the United States’s ideals but including the ability to permit law to

flow with natural changes brought on by society. But as those who have tried have

learned, changing the Constitution is not easy. Nor should it be. Anything as pow-

erful as this document should be altered only when intense scrutiny, evaluation,

and input from every stakeholder have been used to weigh the need for change.

Although politicians speak of constitutional change as part of their platforms, true

scholars understand the importance of maintaining it apolitically. Should the Con-

stitution cater to one side, its effectiveness is lost. Its goal is to serve everyone.

Consider societal desires as a pendulum. On one end of the arc is a conservative

perspective; on the other end, a liberal one. These perspectives influence how soci-

ety perceives its country. It answers such questions as “Why do people act the way

they do?” and “How should society respond?” The perspective a society responds

from says a lot about how that society views life at any point in time.

This is illustrated by the two primary schools of thought on the causes of delin-

quency. The classical theory, developed by Cesare Beccaria, sets forth the concept

that people are responsible for their own behavior because they act on their own free

will. The positivist theory, developed by Cesare Lombroso, operates on the premise

that people’s personal and background characteristics are to answer for their behav-

ior, which suggests that these individuals are, in effect, “victims of their society.”

How you perceive the issues will influence how you will respond. Classicalists

Epilogue iStockphoto/Thinkstock

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452 Epilogue

would argue for accountability and punishment for delinquent behavior, whereas

positivists would argue for treatment. Delinquency trends reflect whether society is

leaning more toward a conservative or liberal view at that time.

Similarly, the various laws of governments in the United States (be they

municipal, county, state, or federal) will reflect whether society sees itself as being

on the more liberal or more conservative side of the pendulum’s arc. Prohibition.

Marijuana. Flag desecration. Women voting. Slavery. Abortion. Guns. Religion. The

laws addressing important social issues reflect how U.S. citizens see themselves

and what they think is important at the time. Although change is inevitable, the

changes reflect the pendulum’s position between conservative and liberal ideals for

society at any given moment in history. The pendulum tends to go back and forth,

back and forth—which is all the more reason that changes to the Constitution come

about only after sincere debate.

What conclusions can be drawn from the pendulum analogy? Simply that

change will continue. The ability to adapt to change is what has kept U.S. law so

viable, and this viability is what the study of the U.S. Constitution is all about.

Begin by considering the complex simplicity on which the Constitution was con-

ceived; it continues to provide stability for one of the most complicated societies to

ever develop.

Could we, as a society, operate without a written constitution, as some other

societies have? Doubtful. Why can the United Kingdom, for example, operate so

efficiently simply on tradition, whereas Americans demand a written document? It

is the nature of Americans. It was the questioning and demanding nature of those

who left England that led to the U.S. Constitution. Citizens want to know why

things are the way they are and to know exactly what is expected of them and what

can be expected of others. “Because your government knows best” would never be

an acceptable answer here. The only answer that appeases U.S. people’s critical

nature is that an approach, an issue, or a law is constitutionally permissible. The

Constitution is our tradition.

Not everyone agrees with the Constitution in full or in part, and people will

continue to challenge it and consider changing it. The document can be changed,

but because of the importance of maintaining the premises on which subsequent

law will be built, changes to the Constitution itself will continue to come with great

debate and consideration. This is the way it should be. As history has proved, even

this great document can change when the people it serves so demand. Fairness.

Justice. Due process. Freedom. These ideals are what our Constitution is about.

The liberties of our country, the freedoms of our civil Constitution are worth defending at all hazards; it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors. They purchased them for us with toil and danger and expense of treasure and blood. It will bring a mark of everlasting infamy on the present generation—enlightened as it is—if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of designing men.

Samuel Adams

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Epilogue 453

It is the genius of our Constitution that under its shelter of enduring institutions and rooted principles, there is ample room for the rich fertility of American political invention.

Lyndon Johnson

To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.

Calvin Coolidge

By design, the text comes full circle, asking you to “study the past” because “what

is past is prologue.” Maybe it was better said by a student in response to the ques-

tion of whether the United States could rely solely on tradition as some govern-

ments do rather than on a written constitution. He stated that the Constitution is our tradition. And what law is being promulgated now will become woven into the

rich history of the U.S. Constitution and our way of life.

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454

The U.S. Constitution and Amendments

(F.N. Thorpe, ed. Federal and State Constitutions, Vol. I, p.3 ff [1909. Retrieved from http://www.archive

.org/details/federalstatecons01thoriala]. The text is

taken from the version in the Revised Statutes of the

United States, 1878 ed., and has been collated with

the facsimile of the original as printed in the original

Journal of the old Congress.)

Constitution of the United States We the People of the United States, in Order to form

a more perfect Union, establish Justice, insure domes-

tic Tranquility, provide for the common defence,

promote the general Welfare, and secure the Bless-

ings of Liberty to ourselves and our Posterity, do

ordain and establish this Constitution for the United

States of America.

Article I

Section 1. All legislative Powers herein granted

shall be vested in a Congress of the United States,

which shall consist of a Senate and House of

Representatives.

Section 2. The House of Representatives shall be

composed of Members chosen every second Year by

the People of the several States, and the Electors in

each State shall have the Qualifications requisite for

Electors of the most numerous Branch of the State

Legislature.

No Person shall be a Representative who shall

not have attained to the Age of twenty five Years, and

been seven Years a Citizen of the United States, and

who shall not, when elected, be an Inhabitant of that

State in which he shall be chosen.

[Representatives and direct Taxes shall be appor-

tioned among the several States which may be

included within this Union, according to their respec-

tive Numbers, which shall be determined by adding

to the whole Number of free Persons, including those

bound to Service for a Term of Years, and excluding

Indians not taxed, three fifths of all other Persons.]1

The actual Enumeration shall be made within three

Years after the first Meeting of the Congress of the

United States, and within every subsequent Term of

ten Years, in such Manner as they shall by Law direct.

The number of Representatives shall not exceed one

for every thirty Thousand, but each State shall have

at Least one Representative; and until such enumera-

tion shall be made, the State of New Hampshire shall

be entitled to chuse three, Massachusetts eight,

Rhode-Island and Providence Plantations one, Con-

necticut five, New-York six, New Jersey four, Penn-

sylvania eight, Delaware one, Maryland six, Virginia

1 Changed by Section 2 of the Fourteenth Amendment.

Appendix A iStockphoto/Thinkstock

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Appendix A The U.S. Constitution and Amendments 455

ten, North Carolina five, South Carolina five, and

Georgia three.

When vacancies happen in the Representation

from any State, the Executive Authority thereof shall

issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their

Speaker and other Officers; and shall have the sole

Power of Impeachment.

Section 3. The Senate of the United States shall be

composed of two Senators from each State, [chosen

by the Legislature thereof,]2 for six Years; and each

Senator shall have one Vote.

Immediately after they shall be assembled in

Consequence of the first Election, they shall be

divided as equally as may be into three Classes. The

Seats of the Senators of the first Class shall be vacated

at the Expiration of the second Year, of the second

Class at the Expiration of the fourth Year, and of the

third Class at the Expiration of the sixth Year, so that

one third may be chosen every second Year; [and if

Vacancies happen by Resignation, or otherwise, dur-

ing the Recess of the Legislature of any State, the

Executive thereof may make temporary Appoint-

ments until the next Meeting of the Legislature,

which shall then fill such Vacancies.]3

No Person shall be a Senator who shall not have

attained to the Age of thirty Years, and been nine

Years a Citizen of the United States, and who shall

not, when elected, be an Inhabitant of that State for

which he shall be chosen.

The Vice President of the United States shall be

President of the Senate, but shall have no Vote, unless

they be equally divided.

The Senate shall chuse their other Officers, and

also a President pro tempore, in the Absence of the

Vice President, or when he shall exercise the Office of

President of the United States.

The Senate shall have the sole Power to try all

Impeachments. When sitting for that Purpose, they

shall be on Oath or Affirmation. When the President

of the United States is tried, the Chief Justice shall

preside: And no Person shall be convicted without

the Concurrence of two thirds of the Members

present.

2 Changed by the Seventeenth Amendment. 3 Changed by the Seventeenth Amendment.

Judgment in Cases of Impeachment shall not extend

further than to removal from Office, and disqualifica-

tion to hold and enjoy any Office of honor, Trust or

Profit under the United States: but the Party convicted

shall nevertheless be liable and subject to Indictment,

Trial, Judgment and Punishment, according to Law.

Section 4. The Times, Places and Manner of hold-

ing Elections for Senators and Representatives, shall

be prescribed in each State by the Legislature thereof;

but the Congress may at any time by Law make or

alter such Regulations, except as to the Places of

chusing Senators.

The Congress shall assemble at least once in

every Year, and such Meeting shall be [on the first

Monday in December,]4 unless they shall by Law

appoint a different Day.

Section 5. Each House shall be the Judge of the

Elections, Returns and Qualifications of its own Mem-

bers, and a Majority of each shall constitute a Quorum

to do Business; but a smaller Number may adjourn

from day to day, and may be authorized to compel the

Attendance of absent Members, in such Manner, and

under such Penalties as each House may provide.

Each House may determine the Rules of its Pro-

ceedings, punish its Members for disorderly Behav-

ior, and, with the Concurrence of two thirds, expel a

Member.

Each House shall keep a Journal of its Proceed-

ings, and from time to time publish the same, except-

ing such Parts as may in their Judgment require

Secrecy; and the Yeas and Nays of the Members of

either House on any question shall, at the Desire of

one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress,

shall, without the Consent of the other, adjourn for

more than three days, nor to any other Place than

that in which the two Houses shall be sitting.

Section 6. The Senators and Representatives shall

receive a Compensation for their Services, to be ascer-

tained by Law, and paid out of the Treasury of the

United States. They shall in all Cases, except Treason,

Felony and Breach of the Peace, be privileged from

Arrest during their Attendance at the Session of their

4 Changed by Section 2 of the Twentieth Amendment.

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456 Appendix A The U.S. Constitution and Amendments

respective Houses, and in going to and returning from

the same; and for any Speech or Debate in either

House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the

Time for which he was elected, be appointed to any

civil Office under the Authority of the United States,

which shall have been created, or the Emoluments

whereof shall have been encreased during such time;

and no Person Holding any Office under the United

States, shall be a Member of either House during his

Continuance in Office.

Section 7. All Bills for raising Revenue shall

originate in the House of Representatives; but the

Senate may propose or concur with Amendments as

on other Bills.

Every Bill which shall have passed the House of

Representatives and the Senate, shall, before it

becomes a Law, be presented to the President of the

United States; If he approves he shall sign it, but if

not he shall return it, with his Objections to that

House in which it shall have originated, who shall

enter the Objections at large on their Journal, and

proceed to reconsider it. If after such Reconsideration

two thirds of that House shall agree to pass the Bill,

it shall be sent, together with the Objections, to the

other House, by which it shall likewise be reconsid-

ered, and if approved by two thirds of that House, it

shall become a Law. But in all Cases the Votes of both

Houses shall be determined by yeas and Nays, and

the Names of the Persons voting for against the Bill

shall be entered on the Journal of each House respec-

tively. If any Bill shall not be returned by the Presi-

dent within ten Days (Sundays excepted) after it

shall have been presented to him, the Same shall be a

Law, in like Manner as if he had signed it, unless the

Congress by their Adjournment prevent its Return,

in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the

Concurrence of the Senate and House of Representa-

tives may be necessary (except on a question of

Adjournment) shall be presented to the President of

the United States; and before the Same shall take

Effect, shall be approved by him, or being disap-

proved by him, shall be repassed by two thirds of

the Senate and House of Representatives, according

to the Rules and Limitations prescribed in the Case

of a Bill.

Section 8. The Congress shall have Power To lay

and collect Taxes, Duties, Imposts and Excises, to pay

the Debts and provide for the common Defence and

general Welfare of the United States; but all Duties,

Imposts and Excises shall be uniform throughout the

United States;

To borrow Money on the credit of the United

States;

To regulate Commerce with foreign Nations, and

among the several States, and with Indian Tribes;

To establish an uniform Rule of Naturalization,

and uniform Laws on the subject of Bankruptcies

throughout the United States;

To coin Money, regulate the Value thereof, and of

foreign Coin, and fix the Standard of Weights and

Measures;

To provide for the Punishment of counterfeiting

the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful

Arts, by securing for limited Times to Authors and

Inventors the exclusive Right to their respective Writ-

ings and Discoveries;

To constitute Tribunals inferior to the supreme

Court;

To define and punish Piracies and Felonies com-

mitted on the high Seas, and Offenses against the

Law of Nations;

To declare War, grant Letters of Marque and

Reprisal, and make Rules concerning Captures on

Land and Water;

To raise and support Armies, but no Appropria-

tion of Money to that Use shall be for a longer Term

than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regula-

tion of the land and naval Forces;

To provide for calling forth the Militia to execute

the Laws of the Union, suppress Insurrections and

repel Invasions;

To provide for organizing, arming, and disciplin-

ing, the Militia, and for governing such Part of them

as may be employed in the Service of the United

States, reserving to the States respectively, the

Appointment of the Officers, and the Authority of

training the Militia according to the discipline pre-

scribed by Congress;

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Appendix A The U.S. Constitution and Amendments 457

To exercise exclusive Legislation in all Cases

whatsoever, over such District (not exceeding ten

Miles square) as may, by Cession of particular

States, and the Acceptance of Congress, become the

Seat of the Government of the United States, and to

exercise like Authority over all Places purchased by

the Consent of the Legislature of the State in which

the Same shall be, for the Erection of Forts, Maga-

zines, Arsenals, dock-Yards and other needful

Buildings;—And

To make all Laws which shall be necessary and

proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this Consti-

tution in the Government of the United States, or in

any Department or Officer thereof.

Section 9. The Migration or Importation of such

Persons as any of the States now existing shall think

proper to admit, shall not be prohibited by the Con-

gress prior to the Year one thousand eight hundred

and eight, but a Tax or duty may be imposed on such

Importation, not exceeding ten dollars for each Per-

son.

The Privilege of the Writ of Habeas Corpus shall

not be suspended, unless when in Cases of Rebellion

or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be

passed.

[No Capitation, or other direct, Tax shall be laid,

unless in Proportion to the Census or Enumeration

herein before directed to be taken.]5

No Tax or Duty shall be laid on Articles exported

from any State.

No Preference shall be given by any Regulation of

Commerce or Revenue to the Ports of one State over

those of another: nor shall Vessels bound to, or from,

one State, be obliged to enter, clear, or pay Duties in

another.

No Money shall be drawn from the Treasury, but

in Consequence of Appropriations made by Law;

and a regular Statement and Account of the Receipts

and Expenditures of all public Money shall be pub-

lished from time to time.

No Title of Nobility shall be granted by the

United States: And no Person holding any Office of

Profit or Trust under them, shall, without the

5 Changed by the Sixteenth Amendment.

Consent of the Congress, accept of any present,

Emolument, Office, or Title, of any kind whatever,

from any King, Prince, or foreign State.

Section 10. No State shall enter into any Treaty,

Alliance, or Confederation; grant Letters of Marque

and Reprisal; coin Money; emit Bills of Credit; make

any Thing but gold and silver Coin a Tender in Pay-

ment of Debts; pass any Bill of Attainder, ex post

facto Law, or Law impairing the Obligation of Con-

tracts, or grant any Title of Nobility.

No State shall, without the Consent of the Con-

gress, lay any Imposts or Duties on Imports or

Exports, except what may be absolutely necessary for

executing its inspection Laws: and the net Produce of

the Duties and Imposts, laid by any State on Imports

or Exports, shall be for the Use of the Treasury of the

United States; and all such Laws shall be subject to

the Revision and Control of the Congress.

No State shall, without the Consent of Congress,

lay any Duty of Tonnage, keep Troops, or Ships of

War in time of Peace, enter into any Agreement or

Compact with another State, or with a foreign Power,

or engage in War, unless actually invaded, or in such

imminent Danger as will not admit of delay.

Article II

Section 1. The executive Power shall be vested in

a President of the United States of America. He shall

hold his Office during their Term of four Years, and,

together with the Vice President, chosen for the same

Term, be elected, as follows:

Each State shall appoint, in such Manner as the

Legislature thereof may direct, a Number of Electors,

equal to the whole Number of Senators and Repre-

sentatives to which the State may be entitled in the

Congress: but no Senator or Representative, or Per-

son holding an Office of Trust or Profit under the

United States shall be appointed an Elector.

[The Electors shall meet in their respective States,

and vote by Ballot for two Persons, of whom one at

least shall not be an Inhabitant of the same State with

themselves. And they shall make a List of all the Per-

sons voted for, and of the Number of Votes for each;

which List they shall sign and certify, and transmit

sealed to the Seat of the Government of the United

States, directed to the President of the Senate. The

President of the Senate shall, in the Presence of

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458 Appendix A The U.S. Constitution and Amendments

the Senate and House of Representatives, open all the

Certificates, and the Votes shall then be counted.

The Person having the greatest Number of Votes

shall be the President, if such Number be a Majority

of the whole Number of Electors appointed; and if

there be more than one who have such Majority, and

have an equal Number of Votes, then the House of

Representatives shall immediately chuse by Ballot

one of them for President, and if no Person have a

Majority, then from the five highest on the List the

said House shall in like Manner chuse the President.

But in chusing the President, the Votes shall be taken

by States, the Representation from each State having

one Vote; A quorum for this Purpose shall consist of

a Member or Members from two thirds of the States,

and a Majority of all the States shall be necessary to a

Choice. In every Case, after the Choice of the Presi-

dent, the Person having the greatest Number of Votes

of the Electors shall be the Vice President. But if there

should remain two or more who have equal Votes,

the Senate shall chuse from them by Ballot the Vice

President.]6

The Congress may determine the Time of chusing

the Electors, and the Day on which they shall give

their Votes; which Day shall be the same throughout

the United States.

No Person except a natural born Citizen, or a Citi-

zen of the United States, at the time of the Adoption

of this Constitution, shall be eligible to the Office of

the President; neither shall any person be eligible to

that Office who shall not have attained to the Age of

thirty five Years, and been fourteen Years a Resident

within the United States.

[In Case of the Removal of the President from

Office, or of his Death, Resignation, or Inability to

discharge the Powers and Duties of the said Office,

the Same shall devolve on the Vice President, and the

Congress may by Law provide for the Case of

Removal, Death, Resignation or Inability, both of the

President and Vice President, declaring what Officer

shall then act as President, and such Officer shall act

accordingly, until the Disability be removed, or a

President shall be elected.]7

6 Changed by the Twelfth Amendment 7 Changed by the Twenty-Fifth Amendment.

The President shall, at stated Times, receive for

his Services, a Compensation which shall neither be

increased nor diminished during the Period for

which he shall have been elected, and he shall not

receive within that Period any other Emolument

from the United States, or any of them.

Before he enter on the Execution of his Office,

he shall take the following Oath or Affirmation:—

”I do solemnly swear (or affirm) that I will faith-

fully execute the Office of President of the United

States, and will to the best of my Ability, preserve,

protect and defend the Constitution of the United

States.”

Section 2. The President shall be Commander in

Chief of the Army and Navy of the United States, and

of the Militia of the several States, when called into

the actual Service of the United States; he may

require the Opinion, in writing, of the principal Offi-

cer in each of the executive Departments, upon any

Subject relating to the Duties of their respective

Offices, and he shall have Power to grant Reprieves

and Pardons for Offenses against the United States,

except in Cases of Impeachment.

He shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided

two thirds of the Senators present concur; and he

shall nominate, and by and with the Advice and Con-

sent of the Senate, shall appoint Ambassadors, other

public Ministers and Consuls, Judges of the Supreme

Court, and all other Officers of the United States,

whose Appointments are not herein otherwise pro-

vided for, and which shall be established by Law: but

the Congress may by Law vest the Appointment of

such inferior Officers, as they think proper, in the

President alone, in the Courts of Law, or in the Heads

of Departments.

The President shall have Power to fill up all

Vacancies that may happen during the Recess of the

Senate, by granting Commissions which shall expire

at the End of their next Session.

Section 3. He shall from time to time give to the

Congress Information of the State of the Union, and

recommend to their Consideration such Measures as

he shall judge necessary and expedient; he may, on

extraordinary Occasions, convene both Houses, or

either of them, and in Case of Disagreement between

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Appendix A The U.S. Constitution and Amendments 459

them, with Respect to the Time of Adjournment, he

may adjourn them to such Time as he shall think

proper; he shall receive Ambassadors and other

public Ministers; he shall take Care that the Laws be

faithfully executed, and shall Commission all the

Officers of the United States.

Section 4. The President, Vice President and all

civil Officers of the United States, shall be removed

from Office on Impeachment for, and Conviction

of, Treason, Bribery, or other high Crimes and

Misdemeanors.

Article III

Section 1. The judicial Power of the United States,

shall be vested in one supreme Court, and in such

inferior Courts as the Congress may from time to

time ordain and establish. The Judges, both of the

supreme and inferior Courts, shall hold their Offices

during good Behaviour, and shall, at stated Times,

receive for their Services, a Compensation, which

shall not be diminished during their Continuance in

Office.

Section 2. The judicial Power shall extend to all

Cases, in Law and Equity, arising under this Con-

stitution, the Laws of the United States, and Trea-

ties made, or which shall be made, under their

Authority;—to all Cases affecting Ambassadors,

other public Ministers and Consuls:—to all Cases

of admiralty and maritime Jurisdiction;—to Con-

troversies to which the United States shall be a

Party;—to Controversies between two or more

States; [between a State and Citizens of another

State;—]8 between Citizens of different States—

between Citizens of the same State claiming Lands

under Grants of different States, [and between a

State, or the Citizens thereof, and foreign States,

Citizens or Subjects.]9

In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State

shall be Party, the supreme Court shall have origi-

nal Jurisdiction. In all the other Cases before men-

tioned, the supreme Court shall have appellate

8 Changed by the Eleventh Amendment. 9 Changed by the Eleventh Amendment.

Jurisdiction, both as to Law and Fact, with such

Exceptions, and under such Regulations as the Con-

gress shall make.

The Trial of the Crimes, except in Cases of

Impeachment; shall be by Jury; and such Trial shall

be held in the State where the said Crimes shall have

been committed; but when not committed within any

State, the Trial shall be at such Place or Places as the

Congress may by Law have directed.

Section 3. Treason against the United States, shall

consist only in levying War against them, or in adher-

ing to their Enemies, giving them Aid and Comfort.

No Person shall be convicted of Treason unless on the

Testimony of two Witnesses to the same overt Act, or

on Confession in open Court.

The Congress shall have Power to declare the

Punishment of Treason, but no Attainder of Treason

shall work Corruption of Blood, or Forfeiture except

during the Life of the Person attained.

Article IV

Section 1. Full Faith and Credit shall be given in

each State to the public Acts, Records, and judicial

Proceedings of every other State, And the Congress

may by general Laws prescribe the Manner in which

such Acts, Records and Proceedings shall be proved,

and the Effect thereof.

Section 2. The Citizens of each State shall be

entitled to all Privileges and Immunities of Citizens

in the several States.

A Person charged in any State with Treason, Fel-

ony, or other Crime, who shall flee from Justice, and

be found in another State, shall on Demand of the

executive Authority of the State from which he fled,

be delivered up, to be removed to the State having

Jurisdiction of the Crime.

[No Person held to Service or Labour in one State,

under the Laws thereof, escaping into another, shall,

in Consequence of any Law or Regulation therein, be

discharged from such Service or Labour, but shall be

delivered up on Claim of the Party to whom such

Service or Labour may be due.]10

10 Changed by the Thirteenth Amendment.

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460 Appendix A The U.S. Constitution and Amendments

Section 3. New States may be admitted by the

Congress into this Union; but no new State shall be

formed or erected within the Jurisdiction of any other

State; nor any State be formed by the Junction of two

or more States, or Parts of States, without the Con-

sent of the Legislatures of the States concerned as

well as of the Congress.

The Congress shall have Power to dispose of and

make all needful Rules and Republican respecting

the Territory or other Property belonging to the

United States; and nothing in this Constitution shall

be so construed as to Prejudice any Claims of the

United States, or of any particular State.

Section 4. The United States shall guarantee to

every State in this Union a Republican Form of Gov-

ernment, and shall protect each of them against Inva-

sion; and on Application of the Legislature, or of the

Executive (when the Legislature cannot be convened)

against domestic Violence.

Article V

The Congress, whenever two thirds of both Houses

shall deem it necessary, shall propose Amendments

to this Constitution, or, on the Application of the

Legislatures of two thirds of the several States, shall

call a Convention for proposing Amendments,

which, in either Case, shall be valid to all Intents and

Purposes, as Part of this Constitution, when ratified

by the Legislatures of three fourths of the several

States, or by Conventions in three fourths thereof, as

the one or the other Mode of Ratification may be

proposed by the Congress; Provided that no Amend-

ment which may be made prior to the Year one thou-

sand eight hundred and eight shall in any Manner

affect the first and fourth Clauses in the Ninth Sec-

tion of the first Article; and the no State, without its

Consent, shall be deprived of it’s [sic] equal Suffrage in the Senate.

Article VI

All Debts contracted and Engagements entered into,

before the Adoption of this Constitution, shall be as

valid against the United States under this Constitu-

tion, as under the Confederation.

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary nowithstanding.

The Senators and Representatives before men-

tioned, and the Members of the several State Legisla-

tures, and all executive and judicial Officers, both of

the United States and of the several States, shall be

bound by Oath or Affirmation, to support this Con-

stitution; but no religious Test shall ever be required

as a Qualification to any Office or public Trust under

the United States.

Article VII

The Ratification of the Conventions of nine States,

shall be sufficient for the Establishment of this Con-

stitution between the States so ratifying the Same.

Done in Convention by the Unanimous Consent

of the States present the Seventeenth Day of Septem-

ber in the Year of our Lord one thousand seven hun-

dred and Eighty seven and of the Independence of

the United States of America the Twelfth In Witness

whereof We have hereunto subscribed our Names,

Go. Washington—Presidt. and deputy from

Virginia

New Hampshire

John Langdon

Nicholas Gilman

Massachusetts

Nathaniel Gorham

Rufus King

Connecticut

Wm. Saml. Johnson

Roger Sherman

New York

Alexander Hamilton

New Jersey

Wil. Livingston

David Brearley

Wm. Paterson

Jona. Dayton

Pennsylvania

B. Franklin

Thomas Mifflin

Robt. Morris

Geo. Clymer

Thos. FitzSimons

Jared Ingersoll

James Wilson

Gouv. Morris

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Appendix A The U.S. Constitution and Amendments 461

Delaware

Geo. Read

Gunning Bedford jun

John Dickinson

Richard Bassett

Jaco. Broom

Maryland

James McHenry

Dan of St. Thos. Jenifer

Danl. Carroll

Virginia

John Blair

James Madison, Jr.

North Carolina

Wm. Blount

Richd. Dobbs Spaight

Hu Williamson

South Carolina

J. Rutledge

Charles Cotesworth Pinckney

Charles Pinckney

Pierce Butler

Georgia

William Few

Abr. Baldwin

Attest William Jackson Secretary

In Convention Monday September 17th 1787

Present the States of

New Hampshire, Massachusetts, Connecticut,

Mr. Hamilton from New York, New Jersey, Pennsyl-

vania, Delaware, Maryland, Virginia, North Carolina,

South Carolina and Georgia.

Resolved,

That the preceeding Constitution be laid before the

United States in Congress assembled, and that it is

the Opinion of this Convention, that it should after-

wards be submitted to a Convention of Delegates,

chosen in each State by the People thereof, under the

Recommendation of its Legislature, for their Assent

and Ratification; and that each Convention assenting

to, and ratifying the Same, should give Notice thereof

to the United States in Congress assembled. Resolved,

That it is the Opinion of this Convention, that as soon

as the Conventions of nine States shall have ratified

this Constitution, the United States in Congress

assembled should fix a Day on which Electors should

be appointed by the States which shall have ratified

the same, and a Day on which the Electors should

assemble to vote for the President, and the Time and

Place for commencing Proceedings under this

Constitution.

That after such Publication the Electors should be

appointed, and the Senators and Representatives

elected: That the Electors should meet on the Day

fixed for the Election of the President, and should

transmit their Votes certified, signed, sealed and

directed, as the Constitution requires, to the

Secretary of the United States in Congress assembled,

that the Senators and Representatives should con-

vene at the Time and Place assigned; that the Sena-

tors should appoint a President of the Senate, for the

sole Purpose of receiving, opening and counting the

Votes for President; and, that after he shall be chosen,

the Congress, together with the President, should,

without Delay, proceed to execute this Constitution.

By the unanimous Order of the Convention

Go. Washington—Presidt. W. Jackson Secretary.

Amendments to the Constitution of the United States Amendment I [1791]

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assem-

bly, and to petition the Government for a redress of

grievances.

Amendment II [1791]

A well regulated Militia, being necessary to the secu-

rity of a free State, the right of the people to keep and

bear Arms, shall not be infringed.

Amendment III [1791]

No Soldier shall, in time of peace be quartered in any

house, without the consent of the Owner, nor in time

of war, but in a manner to be prescribed by law.

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462 Appendix A The U.S. Constitution and Amendments

Amendment IV [1791]

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, sup-

ported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

Amendment V [1791]

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall pri-

vate property be taken for public use, without just

compensation.

Amendment VI [1791]

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence.

Amendment VII [1791]

In Suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right of trial by

jury shall be preserved, and no fact tried by jury,

shall be otherwise re-examined in any Court of the

United States, than according to the rules of the com-

mon law.

Amendment VIII [1791]

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

Amendment IX [1791]

The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage

others retained by the people.

Amendment X [1791]

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.

Amendment XI [1798]

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, com-

menced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.

Amendment XII [1804]

The Electors shall meet in their respective states, and

vote by ballot for President and Vice-President, one

of whom, at least, shall not be an inhabitant of the

same state with themselves; they shall name in their

ballots the person voted for as President, and in dis-

tinct ballots the person voted for as Vice-President,

and they shall make distinct lists of all persons voted

for as President, and of all persons voted for as Vice-

President, and of the number of votes for each, which

lists they shall sign and certify, and transmit sealed to

the seat of the government of the United States,

directed to the President of the Senate;—The Presi-

dent of the Senate shall, in the presence of the Senate

and House of Representatives, open all the certifi-

cates and the votes shall then be counted;—The per-

son having the greatest number of votes for President,

shall be the President, if such number be a majority

of the whole number of Electors appointed; and if no

person have such majority, then from the persons

having the highest numbers not exceeding three on

the list of those voted for as President, the House of

Representatives shall choose immediately, by ballot,

the President. But in choosing the President, the

votes shall be taken by states, the representation from

each state having one vote; a quorum for this pur-

pose shall consist of a member or members from

two-thirds of the states, and a majority of all states

shall be necessary to a choice. And if the House of

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Appendix A The U.S. Constitution and Amendments 463

Representatives shall not choose a President when-

ever the right of choice shall devolve upon them,

before the fourth day of March next following, then

the Vice-President shall act as President, as in the

case of the death or other constitutional disability of

the President.—The person having the greatest num-

ber of votes as Vice-President, shall be the Vice-Pres-

ident, if such number be a majority of the whole

number of Electors appointed, and if no person have

a majority, then from the two highest numbers on the

list, the Senate shall choose the Vice-President; a quo-

rum for the purpose shall consist of two-thirds of the

whole number of Senators, and a majority of the

whole number shall be necessary to a choice. But no

person constitutionally ineligible to the office of

President shall be eligible to that of Vice-President of

the United States.

Amendment XIII [1865]

Section 1. Neither slavery nor involuntary servi-

tude, except as a punishment for crime whereof the

party shall have been duly convicted, shall exist

within the United States, or any place subject to their

jurisdiction.

Section 2. Congress shall have power to enforce

this article by appropriate legislation.

Amendment XIV [1868]

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.

Section 2. Representatives shall be apportioned

among the several States according to their respec-

tive numbers, counting the whole number of persons

in each State, excluding Indians not taxed. But when

the right to vote at any election for the choice of elec-

tors for President and Vice President of the United

States, Representatives in Congress, the Executive

and Judicial officers of a State, or the members of the

Legislature thereof, is denied to any of the male

inhabitants of such State, being twenty-one years of

age, and citizens of the United States, or in any way

abridged, except for participation in rebellion, or

other crime, the basis of representation therein shall

be reduced in the proportion which the number of

such male citizens shall bear to the whole number of

male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Repre-

sentative in Congress, or elector of President and Vice

President, or hold any office, civil or military, under

the United States, or under any State, who having

previously taken an oath, as a member of Congress,

or as an officer of the United States, or as a member

of any State legislature, or as an executive or judicial

officer of any State, to support the Constitution of the

United States, shall have engaged in insurrection or

rebellion against the same, or given aid or comfort to

the enemies thereof. But Congress may by a vote of

two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the

United States, authorized by law, including debts

incurred for payment of pensions and bounties for

services in suppressing insurrection or rebellion,

shall not be questioned. But neither the United States

nor any State shall assume or pay any debt or obliga-

tion incurred in aid of insurrection or rebellion

against the United States, or any claim for the loss or

emancipation of any slave; but all such debts, obliga-

tion and claims shall be held illegal and void.

Section 5. The Congress shall have power to

enforce, by appropriate legislation, the provisions of

this article.

Amendment XV [1870]

Section 1. The right of citizens of the United

States to vote shall not be denied or abridged by the

United States or by any State on account of race,

color, or previous condition of servitude.

Section 2. The Congress shall have power to

enforce this article by appropriate legislation.

Amendment XVI [1913]

The Congress shall have power to lay and collect

taxes on incomes, from whatever source derived,

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464 Appendix A The U.S. Constitution and Amendments

without apportionment among the several States,

and without regard to any census or enumeration.

Amendment XVII [1913]

Section 1. The Senate of the United States shall be

composed of two Senators from each State, elected by

the people thereof, for six years; and each Senator

shall have one vote. The electors in each State shall

have the qualifications requisite for electors of the

most numerous branch of the State legislatures.

Section 2. When vacancies happen in the repre-

sentation of any State in the Senate, the executive

authority of such State shall issue writs of election to

fill such vacancies: provided, that the legislature of

any State may empower the executive thereof to

make temporary appointments until the people fill

the vacancies by election as the legislature may

direct.

Section 3. This amendment shall not be so con-

strued as to affect the election or term of any Senator

chosen before it becomes valid as part of the

Constitution.

Amendment XVIII [1919]

Section 1. After one year from the ratification

of this article the manufacture, sale, or transportation

of intoxicating liquors within, the importation thereof

into, or the exportation thereof from the United

States and all territory subject to the jurisdiction

thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States

shall have concurrent power to enforce this article by

appropriate legislation.

Section 3. This article shall be inoperative unless

it shall have been ratified as an amendment to the

Constitution by the legislatures of the several States,

as provided in the Constitution, within seven years

from the date of the submission hereof to the States

by the Congress.

Amendment XIX [1920]

Section 1. The right of citizens of the United

States to vote shall not be denied or abridged by the

United States or by any State on account of sex.

Section 2. Congress shall have power to enforce

this article by appropriate legislation.

Amendment XX [1933]

Section 1. The terms of the President and Vice

President shall end at noon on the 20th day of Janu-

ary, and the terms of Senators and Representatives at

noon on the 3d day of January, of the years in which

such terms would have ended if this article had not

been ratified; and the terms of their successors shall

then begin.

Section 2. The Congress shall assemble at least

once in every year, and such meeting shall begin at

noon on the 3d day of January, unless they shall by

law appoint a different day.

Section 3. If, at the time fixed for the beginning of

the term of the President, the President elect shall

have died, the Vice President elect shall become

President. If the President shall not have been cho-

sen before the time fixed for the beginning of his

term, or if the President elect shall have failed to

qualify, then the Vice President elect shall act as

President until a President shall have qualified; and

the Congress may by law provide for the case

wherein neither a President elect nor a Vice Presi-

dent elect shall have qualified, declaring who shall

then act as President, or the manner in which one

who is to act shall be selected, and such person shall

act accordingly until a President or Vice President

shall have qualified.

Section 4. The Congress may by law provide for

the case of the death of any of the persons from

whom the House of Representatives may choose a

President whenever the right of choice shall have

devolved upon them, and for the case of the death of

any of the persons from whom the Senate may

choose a Vice President whenever the right of choice

shall have devolved upon them.

Section 5. Sections 1 and 2 shall take effect on the

15th day of October following the ratification of this

article.

Section 6. This article shall be inoperative unless

it shall have been ratified as an amendment to the

Constitution by the legislatures of three-fourths of

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Appendix A The U.S. Constitution and Amendments 465

the several States within seven years from the date of

its submission.

Amendment XXI [1933]

Section 1. The eighteenth article of amendment to

the Constitution of the United States is hereby

repealed.

Section 2. The transportation or importation into

any State, Territory, or possession of the United States

for delivery or use therein of intoxicating liquors, in

violation of the laws thereof, is hereby prohibited.

Section 3. This article shall be inoperative unless

it shall have been ratified as an amendment to the

Constitution by conventions in the several States, as

provided in the Constitution, within seven years

from the date of the submission hereof to the States

by the Congress.

Amendment XXII [1951]

Section 1. No person shall be elected to the office

of the President more than twice, and no person who

has held the office of President, or acted as President,

for more than two years of a term to which some

other person was elected President shall be elected to

the office of President more than once. But this Arti-

cle shall not apply to any person holding the office of

President when this Article was proposed by the

Congress, and shall not prevent any person who may

be holding the office of President, or acting as Presi-

dent, during the term within which this Article

becomes operative from holding the office of Presi-

dent or acting as President during the remainder of

such term.

Section 2. This article shall be inoperative unless

it shall have been ratified as an amendment to the

Constitution by the legislatures of three-fourths of

the several States within seven years from the date of

its submission to the States by the Congress.

Amendment XXIII [1961]

Section 1. The District constituting the seat of

Government of the United States shall appoint in

such manner as the Congress may direct:

A number of electors of President and Vice Presi-

dent equal to the whole number of Senators and

Representatives in Congress to which the District

would be entitled if it were a State, but in no event

more than the least populous state; they shall be in

addition to those appointed by the states, but they

shall be considered, for the purposes of the election

of President and Vice President, to be electors

appointed by a state; and they shall meet in the Dis-

trict and perform such duties as provided by the

twelfth article of amendment.

Section 2. The Congress shall have power to

enforce this article by appropriate legislation.

Amendment XXIV [1964]

Section 1. The right of citizens of the United

States to vote in any primary or other election for

President or Vice President, for electors for President

or Vice President, or for Senator or Representative in

Congress, shall not be denied or abridged by the

United States, or any State by reason of failure to pay

any poll tax or other tax.

Section 2. The Congress shall have power to

enforce this article by appropriate legislation.

Amendment XXV [1967]

Section 1. In case of the removal of the President

from office or of his death or resignation, the Vice

President shall become President.

Section 2. Whenever there is a vacancy in the office

of the Vice President, the President shall nominate a

Vice President who shall take office upon confirmation

by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to

the President pro tempore of the Senate and the

Speaker of the House of Representatives his written

declaration that he is unable to discharge the powers

and duties of his office, and until he transmits to

them a written declaration to the contrary, such pow-

ers and duties shall be discharged by the Vice Presi-

dent as Acting President.

Section 4. Whenever the Vice President and a

majority of either the principal officers of the

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466 Appendix A The U.S. Constitution and Amendments

executive departments or of such other body as Con-

gress may by law provide, transmit to the President

pro tempore of the Senate and the Speaker of the

House of Representatives their written declaration

that the President is unable to discharge the powers

and duties of his office, the Vice President shall

immediately assume the powers and duties of the

office as Acting President.

Thereafter, when the President transmits to the

President pro tempore of the Senate and the Speaker

of the House of Representatives his written declara-

tion that no inability exists, he shall resume the pow-

ers and duties of his office unless the Vice President

and a majority of either the principal officers of the

executive department or of such other body as Con-

gress may by law provide, transmit within four days

to the President pro tempore of the Senate and the

Speaker of the House of Representatives their written

declaration and the President is unable to discharge

the powers and duties of his office. Thereupon Con-

gress shall decide the issue, assembling within forty-

eight hours for that purpose if not in session. If the

Congress, within twenty-one days after receipt of the

latter written declaration, or, if Congress is not in ses-

sion, within twenty-one days after Congress is

required to assemble, determines by two-thirds vote

of both Houses that the President is unable to dis-

charge the powers and duties of his office, the Vice

President shall continue to discharge the same as

Acting President; otherwise, the President shall

resume the powers and duties of his office.

Amendment XXVI [1971]

Section 1. The right of citizens of the United

States, who are eighteen years of age or older, to vote

shall not be denied or abridged by the United States

or by any State on account of age.

Section 2. The Congress shall have power to

enforce this article by appropriate legislation.

Amendment XXVII [1992]

No law varying the compensation for the services of

the Senators and Representatives, shall take effect,

until an election of Representatives shall have

intervened.

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467

Reading Legal Citations

A legal citation is a standardized way of referring to

a specific element in the law. It has three basic parts:

a volume number, an abbreviation for the title, and a

page or section number. Legal citations are usually

followed by the date. Following are examples of legal

citations:

■ U.S. Supreme Court case: Horton v. California, 496 U.S. 128 (1990). This means volume 496 of the

United States Reports (the official reporter for the U.S. Supreme Court opinions), page 128,

decided in 1990. ■ Federal law: 42 U.S.C. § 1983. This means title or

chapter 42 of the United States Code, section 1983. ■ Journal: Janice Toran, “Information Disclosure in

Civil Actions: The Freedom of Information Act

and the Federal Discovery Rules.” 49 Geo. Wash.

L. Rev. 843, 854–55 (1981). This refers to an arti-

cle written by Janice Toran that appears in vol-

ume 49 of the George Washington Law Review, beginning on page 843, and specifically referenc-

ing pages 854–855 of the article, which was pub-

lished in 1981.

If one is researching a state issue, there is usually

no need to spend time on another state’s law, unless

the effort is to persuade a law change by showing

how the law has worked in other states. Also, the

citation will immediately point out if this is an appel-

late court case and, thus, what authority it has. This

way, the reader will know exactly the position of the

case and the level of authority he or she is dealing

with. Finally, citing an authority helps avoid the

issue of plagiarism and it lends itself to supporting

what the author is writing.

When string cites or parallel citations are pro-

vided, they show where the case can be found in

other commercial reporting services. Consider the

Miranda case citation:

■ The simple citation is Miranda v. Arizona, 384 U.S. 436 (1966). This shows that the case is found

in the official United States Reports. ■ A string cite for this case would be Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This shows that in addition to the

official United States Reports, the case is also in West Publishing Company’s Supreme Court Reporter (S.Ct.) and the Lawyers Cooperative Publishing Company’s U.S. Supreme Court Reports, Lawyers’ Edition (L.Ed.2d).

A valuable resource to enhance understanding of

basic legal citations is www.law.cornell.edu/citation/.

Appendix B iStockphoto/Thinkstock

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468

Briefs of Marbury and Miranda

Brief of Marbury v. Madison

Type of Case. This case deals with a petition to

the U.S. Supreme Court for a writ of mandamus to

compel a government official to deliver a commis-

sion, subsequently requiring a determination of

whether the Supreme Court may review an act of

Congress to determine its constitutionality.

Facts of the Case. Just before President John

Adams left office after his defeat by Thomas Jefferson

in 1800, Adams made several judicial appointments.

Although Adams signed these appointments under

the authority granted by Congress, some appoint-

ments were not officially made before Adams left

office, for no reason other than time pressures. Presi-

dent Jefferson ordered his new Secretary of State,

James Madison, to withhold delivery of several com-

missions made by the previous president, including

that of justice of the peace to William Marbury. Mar-

bury, along with several others, petitioned the

Supreme Court to require Secretary of State Madison

to deliver their commissions.

Legal Issue. Does the Supreme Court have the

authority to declare congressional acts unconstitu-

tional?

Holding and Decision. Yes. Because the govern-

ment of the United States is one of laws, not men, the

law needs to be able to remedy wrongs that result

from acts of Congress. In this case, the Judiciary Act

of 1789 as passed by Congress is unconstitutional.

Because the Constitution limits the Supreme

Court’s original jurisdiction to only certain areas,

giving the Court only appellate jurisdiction in all

other areas, the Judiciary Act may not grant the

Supreme Court original jurisdiction to issue writs of

mandamus. The Constitution limits the rights and

powers of the legislature, and the legislature cannot

change the Constitution, which itself provides that it

is the “supreme law of the land.”

If an act of the legislature is repugnant to the

Constitution, are courts bound by that law? No. If a

law is not in accordance with the U.S. Constitution,

the Supreme Court may determine which of the con-

flicting rules will govern the particular case. If the

Constitution is to have the power it was meant to

have, it must prevail pursuant to Article 3, Section 2.

The framers meant the Constitution to govern

courts as well as Congress. Why else are judges

required to take an oath to uphold the U.S. Constitu-

tion? The Supreme Court has the authority to review

acts of Congress, and in this case, Section 13 of the

Judiciary Act of 1789 is unconstitutional.

Rule. Under the Supremacy Clause and Article 3,

Section 2 of the U.S. Constitution, the Supreme Court

has the authority to review acts of Congress to deter-

mine whether they are unconstitutional.

Brief of Miranda v. Arizona

Type of Case. This case deals with the issue of

whether the police must advise certain criminal

Appendix C iStockphoto/Thinkstock

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Appendix C Briefs of Marbury and Miranda 469

suspects who are being questioned of their constitu-

tional right to not speak.

Facts of the Case. After being arrested, the defen-

dant was taken to an interrogation room where he

gave a confession to the police. He had not been told

of his constitutional right to remain silent or to have a

lawyer present because the police assumed he knew

about these rights because he had been arrested

before.

Legal Issue. Must government agents advise cer-

tain suspects of their constitutional Fifth Amend-

ment rights?

Holding and Decision. Yes. Suspects held for

interrogation must be clearly informed that they

have the right to consult with a lawyer and to have

the lawyer with them during interrogation. They

must also be advised of their right to remain silent

and that anything they state can be used as evidence

against them.

If individuals indicate they wish the assistance of

counsel before any interrogation occurs, the authori-

ties cannot deny this request. If a person cannot

afford legal counsel, it must be provided without

cost. Suspects must be advised that they have a right

to have legal counsel present during any

questioning.

Once the warnings have been given, interroga-

tion must cease at any time before or during

questioning if suspects indicate in any way that they

wish to remain silent. If the questioning continues,

the burden is on the government to demonstrate that

the suspect knowingly and intelligently waived the

privilege against self-incrimination and the right to

retained or appointed counsel.

Rule. When government agents question people

in custody, those being questioned must be advised

of their specific Fifth Amendment rights dealing with

self-incrimination and must knowingly and intelli-

gently waive such privileges.

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470

Shepardizing a Case

Appendix D

Example: Shepard's Citing List: 406 U.S. 340 from Shepard’s United States Reports Citations

---340--- Atlantic Coast Line Railroad Co. v Erie Lackawanna Railroad Co. 1972

(32LEI10) (92SC1550) s 404US909 s 442F2d694 s 31SFS357 d 417US109

460US197 j 460US200 Cir. 1 f 772F2dlO21 d 373FS845 Cir. 2 497F2dl038 514F2d955 358FS152 d 359FS1225 434FS569 451FS410 Cir. 3 521F2d44 567F2d563 f 571F2d7841

356FS613 Cir. 5 e 479F2dl042 546F2dl22 798F2dl63 Cir. 9 474F2d852 528F2d670 451FS93 N Y 61NY644 89NYAD959 101YLJ492 12 AL2117s 13 AL344n

Page number and name of cited case

Treatment symbol: f = followed See inside cover for the definition of other symbols

A superscripted numeral means that the point of law, or West headnote number, is addressed in that case.

ALR citations: s = case cited in the supplementation n = case cited in the annotation

Parallel citations are in parentheses (same opinion published in other reporters)

Citations in chronological order, oldest to most current

Arranged by jurisdiction (federal by circuit then state) and from highest to lowest court

Legal periodical citation to Yale Law Journal

Example of Shepard’s Citing List

Source: “Tips for Shepardizing Cases.” H. Douglas Law Library, Syracuse University College of Law

iStockphoto/Thinkstock

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471

Legal Research

Computerized Legal Research Computerized legal research is now the norm. Noth-

ing has made the law more accessible to everyone than the Internet. Although computerized legal research

has been in law offices for years, the Internet, along

with law-related software, brings more legal sources

to homes and offices than ever to allow anyone to

locate answers to many legal queries.

Most students and criminal justice professionals

use computers for their research. Anyone with basic

computer skills has immediate access to a vast array

of legal information when studying and working

with the law. In a sense, the Internet has truly made

the people’s law available to them.

The Law on the Web

You might be wondering where and how to start

your online legal research. A reasonable starting

point, especially for those with only rudimentary

legal knowledge, is whatever search engine a person

is comfortable with, such as Google, Yahoo, or Bing,

although there are many others. The limitation with

these is not accessing enough sources but often too

many.

In addition to developing a personal/profes-

sional reference library, students of the law and those

working in the field should become familiar with

some of the many Internet sources and databases.

Experiment with different ones to find several that

work for you, and bookmark them. As you become

more interested or reliant on information, it may be

worthwhile to subscribe to a source that charges a

subscription fee such as LexisNexis and Westlaw.

You might also use a legal search engine such as

LawCrawler, which is part of FindLaw. Following are

some uniform resource locators (URLs) or addresses

to access criminal justice sources on the Web:

American Bar Association http://www.abanet.org/crimjust/

U.S. Department of Justice,

Bureau of Justice Statistics

http://www.ojp.usdoj.gov/bjs

Legal Information Institute at

Cornell University

http://www.law.cornell.edu/

National Criminal Justice

Association

http://www.ncja.org/

U.S. Supreme Court http://www.supremecourt.gov/

U.S. Federal Judiciary http://www.uscourts.gov/

FindLaw http://www.findlaw.com/

LexisNexis http://www.lexisnexis.com/default.asp

Information Literacy

Information literacy is the ability to effectively iden-

tify an issue, narrow that issue, access appropriate

online sites, separate fact from fiction and present the

findings professionally. Once upon a time people

learned to navigate a library using the card catalog

and the Dewey Decimal System (no doubt ancient or

unknown terms to many readers). Times change, as

do research methods, but the Internet can bring the

law to anyone who knows where to look.

Appendix E iStockphoto/Thinkstock

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472 Appendix E Legal Research

Locating information is only one part of informa-

tion literacy. Evaluating the validity of the informa-

tion is also required. How do you tell reliable

information from that which is questionable? Most

government websites are credible, as are the sites of

nationally recognized organizations and associa-

tions. Most sites have a page devoted to “About Us.”

Some sites, such as that of the FBI or the Supreme

Court, are obviously credible. If in doubt about a site,

go to the “About Us” page to see if you find them

credible. Most sites also indicate when specific infor-

mation was last updated. Determine if that date is

acceptable to you.

What’s Next?

One exciting development is the online discussion

group. Electronic bulletin boards and virtual discus-

sion groups exist for every interest, including law,

and profession, including all aspects of criminal jus-

tice. Questions answered and information shared is

available, literally, at a keystroke.

Another option for discussions is the “blog” (Web

log) that anyone can start to encourage rolling con-

versations about a variety of topics. Blogs are a way

to get a variety of perspectives on an even greater

variety of topics. Continue developing your

information literacy strategy to include these

resources, as well as becoming familiar with the tra-

ditional resources.

Regardless of what level of legal information you

want to locate, it is important to develop an effective

strategy to help you optimize your effort. Increas-

ingly laypeople, students and professionals find that

the Internet is an effective means of accessing legal

information and remaining current with the ever-

changing law.

Steps in Researching a Law of Interest Most holdings of the Supreme Court are also binding

on the states, that is, they have been incorporated by

the Fourteenth Amendment as the Second Amend-

ment was recently. The Fourth Amendment has been

incorporated and is binding on the states, so when

the Supreme Court makes new law, those in the

criminal justice system need to familiarize them-

selves with it. But they also need to know their own

jurisdiction’s law, which may be more restrictive

than the federal law. The following exercise summa-

rizes the steps that might be taken in researching a

new law of interest.

Step 1. Identify the issue (topic) you want to

research. This could be a statute (MSS 609.50), a

case (Arizona v. Gant, 566 U. S. ___ (2009), or a legal concept (frisk). It depends on what you are trying to

do: read about a specific case, or learn how a court

interprets a statute. You need to know your goal.

For example, you might select the topic “search incident

to arrest in a motor vehicle” to see how Minnesota courts

are interpreting it.

Step 2. Identify some research terms or

phrases that might be used to reference or

discuss your topic. Under “frisk,” you might use

“Terry stop,” “protective weapons search,” “frisk” or “reasonable suspicion.”

For example, you might choose “search incident to arrest,”

“automobile.” and “occupant.”

Step 3. Choose the resources to conduct the

research. This will depend on why you are

researching a topic. Is it for personal education,

such as learning about a topic? Then, legal peri- odicals or journals would be helpful, as some- times these are written more persuasively, that

is, the author may be trying to convince the

reader of something rather than just explaining

the law.

Another resource to use is actual case decisions. You could use these for personal education and if

you want the law explained to you objectively

without bias.

Two quick things about journal articles. First,

know the credentials of the author if possible.

This is a question of credibility. Second, journal

articles can also lead you to other sources. Cases

(Continued)

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Appendix E Legal Research 473

and other journal articles were likely researched

to come up with the information in the article.

For example, you might use both sources to get an under-

standing of how the scholar and the courts are interpreting

the case.

Step 4. Decide how to access the resources.

Online? A law library with access to Westlaw or

LexisNexis? A library with print materials?

You might decide to use scholar.google.com, an excellent

free source of court opinions of all levels, federal or state.

Type your search topic (“search incident to arrest”) into

the box and select the “legal opinions and journals” option

below the search box. This site also shows with each case

how and where it was cited (important to see if a case has

been overruled or limited). This “how cited” feature

includes law journals, too. Often, even if courts publish

their opinions online, searching for them is hard. You

either need to know the names of the parties or the date

it was decided, making searching difficult and tedious.

Step 5. Access your source(s) and search

using the terms (or even the case) you have

identified.

For example, you might enter “search incident to arrest”

and “Arizona v. Gant” into scholar.google.com. In the far

left drop-down box, you would select “Minnesota courts.”

Based on the results you get, you might want to add terms

or take them away. Having too many terms can limit the

results as much as having too few terms can, especially

using the “and” search function.

Step 6. Interpret the results. Pay attention to

the cases and what jurisdiction they are from.

Make sure they are binding on your jurisdiction,

that is, Minnesota State Supreme Court ruling for

Minnesota research, not a Wisconsin state court.

Also, pay attention to the federal appellate dis-

trict, which affects the binding nature of the

opinion.

Additionally, notice if the opinion is from an

appellate level court where opinions become law.

Trial level courts don’t make the law, they apply it.

Read the opinions using the suggestions given

in this text. Pay special attention to the areas

where the court gives the rule of law. It is usually

a paragraph or two citing cases and language

from those cases that tell you what the applicable

law is to the case at hand. This is the law the court

then uses to make its determination. Look at the

other cases mentioned in the opinion. These will

give you other resources to use if you want to

proceed further.

The results for Minnesota were limited, most likely

because the Supreme Court ruling in Gant is fairly recent.

Four pertinent cases did come up; however, only one of

the four was a published opinion:

■ State v. Lussier, 770 NW 2d (Minnesota Court of

Appeals, 2009)—published ■ State v. Iman—Minnesota Court of Appeals, 2010

(unpublished) ■ State v. Weyaus—Minnesota Court of Appeals, 2011

(unpublished) ■ State v. Norring—Minnesota Court of Appeals, 2009

(unpublished)

It appears from these rulings that the Minnesota Court

of Appeals is taking a broad view of Gant, that is, the court

is seeing that “reasonable to believe evidence of the crime

of arrest might be found in the vehicle” as a concept holds

validity so that as long as facts can be pointed to that in

some way, even minimally, evidence might be in the car, it is

reasonable to search the car for that evidence under Gant.

For example, in Iman, the court noted that he was

arrested for assault with a deadly weapon (a baseball bat).

He had jumped in his vehicle and fled the scene with the

bat in the car and was stopped a short time later. These

facts point to it being reasonable to believe that evidence

of the assault (the bat) was still in the car.

Step 7. Because there are few (and unpub-

lished at that) opinions, it would be a good

idea to see how other courts are interpreting

the law. You might go to the federal court of

appeals that covers the area you researched

because this is the law that applies in Minnesota

to cases under the U.S. Constitution.

Doing an “advanced scholar search,” you may select the

opinions of specific circuit courts. Minnesota is in the Eighth

Circuit, and most of the Eighth Circuit cases were finding

probable cause (PC) in situations where it was “reasonable

(Continued)

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474 Appendix E Legal Research

to believe evidence of the crime was in the car.” This makes

it harder to interpret because it is unclear if they were equat-

ing the “reasonable to believe” standard with PC (in which

case the search incident to arrest would be irrelevant

because the PC would allow the search of the car on its

own). Or, did they just find that the evidence rose to that level

of suspicion, and thus it was reasonable? Several other

cases also found the second reason the Court mentioned in

Gant to apply; that is, if the arrestee is within reaching dis-

tance of the passenger compartment at the time of arrest.

Then try the other federal courts of appeals because

they are also interpreting the U.S. Constitution and its rela-

tion to the Supreme Court decision (as opposed to state

constitutions).

If little or nothing is found, try searching other states

within your circuit, and if that doesn’t provide enough

relevant (but not binding) information, try states around

the country. Remember these cases are not binding, they

just will give you an idea of how courts are interpreting the

new case law.

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475

(Number in parentheses indicates the chapter in

which the term is introduced.)

administrative warrant—allows civil inspections of

private property to determine compliance with gov-

ernment rules, regulations, and city ordinances such

as fire or building codes; may also be obtained so

government agents can conduct routine inspections

when occupants refuse their entry. (9)

adversarial judicial system—a legal system such as

that used in the United States, that places one party

against another to resolve a legal issue, stipulating

that only in an actual conflict will a judicial body

hear the case. (2, 11)

affirm—agree with a lower court’s decision. (2)

affirmative action—programs created to spread

equal opportunity throughout the diverse American

population. (4)

amendments—changes to a constitution or

bylaws. (1)

American dream—the belief that through hard work

anyone can have success and ample material posses-

sions. (4)

amicus brief—a “friend of the court” brief submitted

by a person not a party to the action but interested in

the outcome. (2)

anti-Federalists—colonists who opposed a strong

federal government. (1)

appellate jurisdiction—describes a court authorized

to review cases and to either affirm or reverse the

actions of a lower court. (2)

arraignment—usually the first court appearance by a

defendant during which the accused is advised of his

or her rights, advised of the charges, and given the

opportunity to enter a plea. (11)

array—list of potential jury members. (11)

arrest—taking a person into custody, in the manner

authorized by law, to present that person before a

magistrate to answer for committing a crime. (8)

articulable facts—actions described in clear, distinct

statements. (7)

asset forfeiture—the seizure by the government,

without compensation, of money and property con-

nected with illegal activity. (12)

attenuation doctrine—evidence obtained as a result

of a previous illegality may be admissible at trial if it

is so far removed, through time and space, from the

original violation that any “taint” has dissipated. (7)

bail—money or property pledged by a defendant for

pretrial release from custody that would be forfeited

should the defendant fail to appear at subsequent

court proceedings. (12)

balancing test—a position taken by the appellate

courts to balance the needs of society for law and

order and for effective law enforcement against the

privacy rights of individuals. (5)

beachheading—the unconstitutional approach of

purposely withholding the Miranda warnings until after a confession is obtained and then giving Miranda to re-ask the question. (10)

bifurcated trial—a two-step trial for capital cases:

the first step is determination of innocence or guilt;

the second step, if the defendant is found guilty,

is determination of whether to seek the death

penalty. (12)

Glossary iStockphoto/Thinkstock

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476 Glossary

blind lineup—one conducted by someone who does

not know who the suspect is. (11)

Brady rule—the suppression by the prosecution of

evidence favorable to an accused on request violates

due process when the evidence is material either to

guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution. (11)

brief—an outline of a legal case that contains the case

name and citation, a summary of key facts, the legal

issues involved, the court’s decision, the reasons for

that decision, and any separate opinions or dissents. (2)

bright-line approach—determining the reasonable-

ness of an action according to a specific rule that

applies to all cases, in contrast to the case-by-case method. (7)

caption—the title of a case setting forth the parties

involved. (2)

case law—common law approach, so named because

it is based on previous cases; as a term in U.S. law, it

is synonymous with common law. (2)

case-by-case method—determining the reasonable-

ness of an action by considering the totality of cir-

cumstances in each case, in contrast to the bright-line approach. (7)

castle law—a legal claim based on English common

law that designates one’s place of residence (or, in

some states, any place legally occupied, such as

one’s car or place of work) as a place in which one

enjoys protection from illegal trespassing and violent

attack. (6)

certiorari—Latin for “to be informed”; the Court

uses this term to state which cases it will hear. (3)

citizen’s arrest—the detention by a nongovernment

agent of one accused of an illegal act. (8)

“clear and present danger” test—the test of whether

words are so potentially dangerous as to not be pro-

tected by the First Amendment; replaced by the

“imminent lawless action” test. (5)

“clear and probable danger” test—the test of

whether the gravity of the evil discounted by its

improbability justifies an invasion of free speech nec-

essary to avoid any danger. (5)

codified law—law specifically set forth in organized,

structured codes such as the U.S. criminal code, state

statutes, or local ordinances. (2)

Commerce Clause—section of the U.S. Constitution

(Article 1, Section 8, Clause 3) that provides the legal

foundation for much of the federal government’s

regulatory authority, including firearms. (6)

commercial bail—using the services of a bail bond

person to post a defendant’s bail for a fee. (12)

common law—early English judge-made law based

on custom and tradition; a legal system that, as in

the United States, decides present cases on past

decisions. (2)

comparative law—comparing and contrasting laws

to expand understanding of law and legal theory. (2)

compensatory damages—reimbursement to the

plaintiff for actual harm done, such as medical

expenses or lost business. (12)

compulsory process—permits a defendant to require

witnesses to appear in court, usually under the issu-

ance by the court of a subpoena. (11)

concurrent jurisdiction—two or more courts autho-

rized to hear a specific type of case. (2)

concurring opinion—one written by a justice who

agrees with the holding, but who gives additional or

different reasons for voting with the majority. (2)

conflict theory—holds that laws are established to

keep the dominant class in power, in contrast to the

consensus theory. (2)

consensus theory—holds that individuals in a soci-

ety agree on basic values, on what is inherently right

and wrong, and that laws express these values. (2)

conservative—decisions that favor the government’s

interest in prosecuting and punishing offenders over

recognition or expansion of rights for individuals. (3)

constitution—a system of basic laws and principles

that establish the nature, functions and limits of a

government or other institution. (1)

constitutionalism—a belief in a government in

which power is distributed and limited by a system

of laws that must be obeyed by those who rule. (1)

contemporaneous—a concept that holds a search can

be incident to an arrest only if it occurs at the same

time as the arrest and is confined to the immediate

vicinity of the arrest. (9)

contextual discrimination—describes a situation in

which racial minorities are treated more harshly at

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Glossary 477

some points and in some places in the criminal jus-

tice system but no differently than whites at other

points and in other places. (4)

continuum of contacts—the almost limitless varia-

tions of contacts between the public and the police

illustrating how justification for police action

increases as their reasons for thinking criminal activ-

ity is afoot build. (7)

contraband—anything that is illegal for people to

own or have in their possession; for example, child

pornography, illegal drugs, or illegal weapons. (9)

conventional Fourth Amendment approach—

viewing the Reasonableness Clause and the Warrant

Clause as intertwined and firmly connected. (7)

corporal punishment—causing bodily harm through

physical force, for example, whipping, flogging, or

beating. (12)

court trial—when a case is heard before only the

bench (or judge) without a jury. (11)

Crime Control Model—emphasizes the “repression

of criminal conduct” and holds that the most impor-

tant function of the criminal justice system is to bring

criminal behavior under tight control as efficiently as

possible. (2)

crimes—acts defined by federal or state statute or

local ordinance that are punishable; wrongs against

the government and the people it serves. (2)

critical stage—any step during a criminal prosecu-

tion in which the accused’s rights may be affected by

the absence of legal representation. (11)

cross-racial identification—suggests that people of

one race have difficulty recognizing facial attributes

of other races. (11)

curtilage—the portion of property generally associ-

ated with the common use of land. (9)

custodial interrogation—questioning by law enforce-

ment officers after a person has been taken into cus-

tody or otherwise deprived of freedom of action in

any significant way. (10)

de facto arrest—a situation in which the police take

someone in for questioning in a manner that is, in

reality, an arrest, but without the requisite probable

cause. (8)

delegated powers—powers of the national govern-

ment, both enumerated and implied by legal

authority, delegated or entrusted to the national gov-

ernment by the states and the people. (13)

deliberate elicitation—the Massiah standard that violates the Sixth Amendment by purposefully, yet

covertly, drawing out incriminating statements from

a suspect whose Sixth Amendment right to counsel

has attached but who has not waived the right. (11)

demurrer—a request that a suit be dismissed because

the facts do not sustain the claim against the

defendant. (6)

detainer—document filed against inmates who have

other criminal charges pending against them. (11)

dictum (plural dicta)—statements by a court that do not deal with the main issue in the case or an addi-

tional discussion by the court. (2, 6)

discrimination—an action or behavior based on

prejudice. (4)

disparate impact—policies or practices that are not

intended to discriminate but, in fact, have a dispro-

portionately negative effect on minorities. (4)

disparate treatment—intentional acts of employment discrimination based on race, color, religion, sex, or

national origin. (4)

disparity—a difference, but one that does not neces-

sarily involve discrimination. (4)

dissenting opinion—written by a justice who

disagrees with the holding and voted against the

majority. (2)

double jeopardy—a prohibition against the govern-

ment from trying someone twice for the same

offense. (10)

due process—provides rules and procedures to ensure

fairness to an individual and to prevent arbitrary gov-

ernment actions; the Fifth and Fourteenth Amend-

ments’ constitutionally guaranteed right of an accused

to hear the charges against him or her and to be heard

by the court having jurisdiction over the matter. (4)

due process of law—prohibits the government from

unfairly or arbitrarily denying a citizen their funda-

mental and constitutionally protected rights to life,

liberty, and property. (4)

Due Process Model—emphasizes the rights of the

individual, rests on the presumption of innocence

and holds that individual rights are not to be sacri-

ficed for the sake of efficiency. (2)

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478 Glossary

entrapment—the act of government officials or

agents (usually police) inducing a person to commit

a crime that the person would not have otherwise

committed. (10)

equal protection of the law—requires that similarly

situated people or classes of people be treated in

similar ways under the law. (4)

Establishment Clause—clause in the First Amendment

that states, “Congress shall make no law respecting an

establishment of religion.” (5)

exclusionary rule—judge-made case law promul-

gated by the Supreme Court to prevent police or

government misconduct; it prohibits evidence

obtained in violation of a person’s constitutional

rights from being admissible in court. (7)

exclusive jurisdiction—courts that can hear only

specific cases. (2)

exigent circumstances—emergency situations. (9)

federalism—a principle whereby power is shared by

the national government and the states; the Tenth

Amendment provision reserving for the states those

powers not granted to the federal government or

withheld from the states. (13)

Federalists—colonists who favored a strong federal

government. (1)

Free Exercise Clause—clause in the First Amendment

that declares, “Congress shall make no law . . . prohib-

iting the free exercise [of religion].” (5)

fresh pursuit—a situation in which police are imme-

diately in pursuit of a suspect and may cross state

jurisdictional lines to make an arrest of a felon who

committed the felony in the officers’ state. (8)

frisk—a reasonable, limited pat-down search for

weapons for the protection of a government agent

and others. (7)

fruit of the poisonous tree doctrine—evidence

obtained as a result of a previous illegality (a consti-

tutionally invalid search or activity) must be excluded

from trial. (7)

functional equivalent—essentially the same or serv-

ing the same purpose. (8)

furtive conduct—questionable, suspicious, or secre-

tive behavior. (7)

general jurisdiction—courts having the ability to

hear a wide range of cases. (2)

good faith—officers are unaware that they are acting

in violation of a suspect’s constitutional rights. (7)

grand jury—a group of citizens who determine

whether sufficient evidence exists to send an accused

to trial. (10)

Great Compromise—the agreement reached in draft-

ing the U.S. Constitution that gave each state an

equal vote in the Senate and a proportionate vote in

the House. (1)

harmless error—an exception to the exclusionary

rule involving the admissibility of involuntary

confessions and referring to instances in which the

preponderance of evidence suggests the defendant’s

guilt and the “tainted” or illegal evidence is not criti-

cal to proving the case against the defendant. (7, 10)

hearsay—an out-of-court statement used to prove

the truth of the matter asserted; can include state-

ments made by the person actually testifying, before

taking the stand. (11)

holding—the rule of law applied to the particular

facts of the case and the actual decision. (2)

hot pursuit—the period during which an individ-

ual is being immediately chased by law enforce-

ment, and because of the exigencies of the situation,

officers are allowed to forcibly enter constitution-

ally protected areas, such as a home, without a

warrant. (8)

“imminent lawless action” test—a three-part test

that the government must meet if certain communi-

cation is not to be protected by the First Amendment:

(1) the speaker subjectively intended incitement,

(2) in context, the words used were likely to produce

imminent, lawless action, and (3) the words used by

the speaker objectively encouraged and urged

incitement; replaced the “clear and present danger”

test. (5)

incorporation doctrine—holds that those provisions

of the Bill of Rights that are fundamental to the

American legal system are applied to the states

through the Due Process Clause of the Fourteenth

Amendment, thereby preventing state or local gov-

ernments from infringing on people’s rights when

federal government would not be allowed to. (4)

incrimination—the act of accusing, implicating, or

identifying someone as having been involved in a

crime or other wrongdoing. (10)

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Glossary 479

indictment—a formal accusation of a defendant,

usually by a grand jury, that sends the defendant on

to trial for prosecution. (10)

indigent—poor, unable to afford a lawyer. (11)

inevitable discovery doctrine—exception to exclu-

sionary rule deeming evidence admissible even if

seized in violation of the Fourth Amendment when it

can be shown that the evidence would have inevita-

bly been discovered through lawful means. (7)

interrogation—the formal, systematic, express ques-

tioning by law enforcement of a person suspected of

criminal activity, as well as the functional equivalent

of express questioning (any words or actions by the

police, other than those normally attendant to arrest

and custody, that the police should know are reason-

ably likely to elicit an incriminating response from

the suspect). (10)

invoke—to unambiguously exercise a right. (10)

Jim Crow laws—laws that strictly segregated Blacks

from Whites in schools, restaurants, streetcars, hospi-

tals, and cemeteries. (4)

judicial activism—allowing judges to interpret the

Constitution and its amendments. (5)

judicial review—the power of a court to analyze

decisions of other government entities and lower

courts. (3)

jurisdiction—the authority of a legislative body to

establish a law, the authority of a particular court to

hear certain types of cases, or the authority a law has

over a specific group of people. (2)

jury nullification—ability of a jury to acquit a

defendant even though jurors believe that person is

guilty. (11)

just compensation—the requirement that property

owners be paid fair market value by the government

when government takes their property. (10)

law—a body of rules promulgated (established) to

support the norms of a society, enforced through

legal means (i.e., punishment). (1)

legal citation—a standardized way of referring to a

specific element in the law. (2)

liberal—decisions that are pro–person accused or

convicted of a crime, pro–civil liberties or civil rights

claimants, pro–indigents, pro–American Indians and

anti–government. (3)

limited jurisdiction—restriction of the types of cases

a particular court might hear. (2)

lineup—identification technique in which the victim

or witness is shown several people, including the

suspect. (11)

litigious—a tendency toward suing; a belief that

most controversies or injurious acts, no matter how

minor, should be settled in court. (7)

Loyalist—a colonist who did not support the boycott

of British goods in the colonies and who still paid

allegiance to the British monarchy. (1)

magistrate—a judge. (7)

militia—an armed group of citizens who defend

their community as emergencies arise. (6)

minutemen—colonial soldiers. (1)

mootness—exists when the issues that gave rise to a

case have either been resolved or have otherwise

disappeared. (2)

movant—a party making a motion to the court. (4)

nightcap(ped) warrant—issued when officers wish

to execute a warrant at night because that is when the

suspected illicit activity is primarily occurring. (7)

no-knock warrant—issued when officers want to

make an unannounced entrance because they are

afraid evidence might be destroyed or officer safety

requires it. (7)

offense specific—the Sixth Amendment right to

counsel applies only to the specific charges for which

the defendant has been indicted or arraigned. (11)

Operative Clause—identifies the action to be taken

or prohibited. (6)

opinion—a written statement by the court explaining

its decision in a given case, usually including the legal

issues or points of law involved, a statement of facts

and any precedents on which the decision is based. (3)

ordinances—laws or codes established at the local

level, that is, the municipal or county level. (2)

original jurisdiction—courts authorized to hear

cases first, try them and render decisions. (2)

Patriot—a colonist who supported the boycott of

British goods in the colonies and who owed allegiance

to colonial America rather than to the British

monarchy. (1)

penal codes—criminal codes or laws. (2)

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480 Glossary

penumbra—a type of shadow in astronomy with the

principle extending to the idea that certain constitu-

tional rights are implied within other constitutional

rights. (4, 9)

peremptory challenges—a specific number of

allowances given to each side in a case that they may

assert to remove a potential juror for any reason

whatsoever. (11)

petition for certiorari—request that the Supreme

Court or a state supreme court review the decision of

a lower court. (2)

plain feel—items felt during a lawful stop and frisk

may be retrieved if the officer reasonably believes the

items are contraband and can instantly recognize

them as such. (9)

plain touch—same as plain feel. (9)

plain view—unconcealed evidence that officers see

while engaged in a lawful activity may be seized and

is admissible in court. (9)

pluralism—a society in which numerous distinct

ethnic, religious, or cultural groups coexist within

one nation, each contributing to the society as a

whole. (1)

preemption—federal law supercedes state law; if a

state law stands as an obstacle to the purposes,

objectives, and execution of the federal law, the

Supremacy Clause preempts the state law. (4)

Prefactory Clause—announces a purpose but does

not necessarily restrict the Operative Clause. (6)

preferred freedoms approach—a position that

stresses that civil liberties are to take precedence over

other constitutional values because they are requisite

to a democracy. (5)

prejudice—a negative attitude regarding a person or

thing. (4)

preliminary hearing—a critical stage of criminal

proceedings when it is determined if probable cause

exists to believe a crime has been committed and that

the defendant committed it. (11)

pretext stop—stopping a vehicle to search for evi-

dence of a crime under the guise of a traffic stop. (8)

preventive detention—the right of judges to con-

sider the potential criminal conduct of those

accused of serious offenses and deny bail on those

grounds. (12)

prior restraint—a restriction on publishing certain

materials. (5)

privilege—a claim that is not legally protected, in

contrast to a right. (4)

probable cause—exists when facts and circum-

stances are sufficient in themselves to warrant a per-

son of reasonable caution to believe that an offense

has been or is being committed; stronger than

reasonable suspicion but less than the quantum of

evidence required for conviction. (7)

procedural due process—constitutionally guaran-

teed rights of fairness in how the law is carried out or

applied. (4)

procedural law—how the law is to be enforced, for

example, how and when police can stop people. (2)

prohibited persons—individuals to whom, under the

Gun Control Act, selling a firearm is forbidden. (6)

promulgate—to make law through a legal process. (2)

proportionality analysis—in essence, making the

punishment fit the crime. (12)

pro se—appearing in court without an attorney, rep- resenting oneself. (11)

protective sweep—a limited search made in conjunc-

tion with an in-home arrest when the searching offi-

cer possesses a reasonable belief based on specific

and articulable facts that the area to be swept harbors

an individual posing a danger to those on the arrest

scene. (9)

public safety exception—allows officers to question

suspects without first giving the Miranda warning if the information sought sufficiently affects the offi-

cers’ and the public’s safety. (10)

punitive damages—fines above and beyond the

actual economic loss to punish the defendant in a

civil trial. (12)

qualified immunity—exemption of a public official

from civil liability for actions performed during the

course of his or her job unless they violated a

“clearly established” constitutional or statutory

right of which a reasonable person would have

known. (9)

racial profiling—the process of using certain racial

characteristics, such as skin color, as indicators of

criminal activity. (4)

ratify—approve a constitutional amendment. (1)

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Glossary 481

“rational basis” test—the standard for analyzing

First Amendment claims by prisoners and other con-

stitutional claims as well. (5)

reasonable—sensible, rational, and justifiable. (7)

reasonable expectation of privacy—a situation in

which (1) a person has exhibited an actual (subjec-

tive) expectation of privacy and (2) that expectation

is one that society is prepared to recognize as

reasonable. (9)

reasonableness Fourth Amendment approach—the

Reasonableness Clause and the Warrant Clause are

interpreted as separate issues. (7)

reasonable suspicion—an experienced police offi-

cer’s hunch or intuition. (7)

recesses—periods when the Supreme Court does not

hear cases but considers administrative matters and

writes opinions. (3)

remand—return a case to the lower court for further

action. (2)

remoteness—regarding the unreasonableness and

unlawfulness of searches of seized luggage or other

personal belongings not immediately associated with

the arrestee’s body or under his or her immediate

control. (9)

reserve powers—powers retained by the states. (13)

reverse—overturn the decision of a lower court. (2)

reverse discrimination—giving preferential treat-

ment in hiring and promoting to women and

minorities to the detriment of White males. (4)

right—a legally protected claim, in contrast to a

privilege. (4)

ripeness doctrine—invoked when a case comes to

court too soon, preventing the court from getting

prematurely involved in a case that may eventually

resolve through other means. (2)

ROR—released on their own recognizance; no bail

money is required. (12)

SAR—a suspicious activity report; an official

documentation of observed behavior that may be

indicative of intelligence gathering or preoperational

planning related to terrorism, criminal, or other illicit

intention. (4)

search—an examination of a person, place, or vehicle

for contraband or evidence of a crime. (7)

seizure—a taking by law enforcement or other gov-

ernment agent of contraband, evidence of a crime, or

even a person into custody. (7)

selective incorporation—holds that only the provi-

sions of the Bill of Rights that are fundamental to

the U.S. legal system are applied to the states

through the Due Process Clause of the Fourteenth

Amendment. (13)

Shepardizing—using the resource Shepard’s Citations, a reference that tracks cases so legal researchers can

easily determine whether the original holding has

been changed through any appeals. (2)

showup—identification technique in which only one

individual is shown to the victim or witness. (11)

sittings—periods during which the Supreme Court

hears cases. (3)

social contract—a philosophy proposed by French

historian-philosopher Montesquieu, whereby free,

independent individuals agree to form a society and

to give up a portion of their individual freedom to

benefit the security of the group. (2)

standing—having an actual interest in the matter of

dispute. (2)

stare decisis—a common law doctrine requiring that precedent set in one case shall be followed in all cases

having the same or similar circumstances, thus

ensuring consistency in the law; Latin for “let the

decision stand.” (2)

status offenses—offenses deemed to be illegal when

committed by juveniles because of their age, but

which are not unlawful for adults, such as smoking,

drinking, and curfew violations. (2)

statutory law—law set forth by legislatures or govern-

ing bodies having jurisdiction to make such law. (2)

stop—a brief detention of a person, short of an arrest,

based on specific and articulable facts for the pur-

pose of investigating suspicious activity. (7)

straw purchase—an illegal transaction when a buyer

uses an intermediary (the “straw man”) to purchase

a firearm(s) from a licensed firearms dealer and then

sells the weapon(s) to individuals who cannot legally

buy guns themselves, such as felons and the severely

mentally retarded. (6)

strict construction—a rigid interpretation of a law

not likely to expand the specifically set forth law of

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482 Glossary

the particular statute, particularly in expanding the

intent of that law. (3)

strict scrutiny—the legal standard applied to

due-process analysis of fundamental rights, such as

freedom of speech, in which the state must establish

it has a compelling government interest that justifies

and necessitates the law in question and that the law

is narrowly tailored to fit that interest; a high stan-

dard and difficult to defend. (5)

string cites—additional legal citations showing

where a case may be found in commercial reporting

services. (2)

subpoena—requires an individual to appear in court

to testify or to bring documents or other physical

evidence to the court. (11)

substantive due process—constitutional require-

ment that laws themselves be fair. (4)

substantive law—establishes rules and regulations,

as in traffic law. (2)

suits at common law—legal controversies arising

out of civil law rather than criminal law. (13)

summary judgment—a request to the court to review

the evidence and, without a trial, reach a decision to

dismiss a case against the movant because there is no

dispute of material fact that a jury need resolve. (4)

Sunset Clause—a set ending time for legislation that

is not renewed to prevent old law from remaining on

the books. (6)

Supremacy Clause—Constitutional doctrine that

federal law will reign when there is conflicting state

law (U.S. Const. Art. VI, Paragraph 2). (1)

symbolic speech—a form of speech that expresses an

idea or emotion without use of words, such as burn-

ing one’s draft card, bra or flag, or picketing. (5)

Terry stop—an officer with articulable reasonable suspicion may conduct a brief investigatory stop,

including a pat down for weapons if the officer

has reason to suspect the person is armed and

dangerous. (7)

tort—civil wrong by one individual against

another, with the remedy most often being either

an order by the court for particular action or com-

pensation. (2)

totality of circumstances—the principle on which a

number of legal assessments are made; is not a

mathematical formula for achieving a certain num-

ber of factors but rather a sum total of layers of

information and the synthesis of what the police

have heard, what they know, and what they observe

as trained officers, including probable cause, used

to assess whether the sum total would lead a

reasonable person to believe what the officers

concluded. (7)

unenumerated rights—rights not specifically listed

in the Bill of Rights. (4)

USA PATRIOT Act—legislation that significantly

improves the nation’s counterterrorism efforts. (10)

vacate—set aside or annul a case. (2)

venire—the selected jury panel. (11)

venue—the geographic area in which a specific case

may come to trial, and the area from which the jury

is selected. (2, 11)

voir dire—the process of questioning potential jurors to determine their impartiality. (11)

voluntariness test—a determination as to whether

one willingly and knowingly relinquished his or her

constitutional rights; considers the totality of circum-

stances to determine whether consent was given

freely and truly voluntarily. (9)

waiver—a purposeful and voluntary giving up of a

known right. (10)

waiver test—citizens may waive their rights, but

only if they do so voluntarily, knowingly, and

intentionally. (9)

wingspan—the area within a person’s reach or

immediate control. (9)

zones of privacy—areas into which the government

may not intrude. (4)

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483

Abington School District v. Schempp, 126 Adams v. Williams, 173, 237, 288 Adamson v. California, 82, 119 Adarand Constructors v. Pena, 98, 119 Addington v. Texas, 411 Agostini v. Felton, 127 Aguilar v. Felton, 126 Aguilar v. Texas, 208 Almeida-Sanchez v. United States, 316 American Civil Liberties Union v. Mukasey,

150–151 Anderson v. State, 344 Ansonia Board of Education v. Philbrook, 98, 119 Arave v. Creech, 426 Arizona v. Evans, 226–227 Arizona v. Fulminante, 225–226, 340 Arizona v. Gant, 228, 273, 297–298 Arizona v. Johnson, 246, 288 Arizona v. Roberson, 354, 362 Arizona v. United States, 105, 119 Arnold v. United States, 359 Argersinger v. Hamlin, 387, 400, 444 Atkins v. Virginia, 428 Atwater v. City of Lago Vista, 229, 251 Austin v. United States, 415–416

Bailey v. United States, 282 Baker v. McCollan, 233 Baldwin v. New York, 381 Ballew v. Georgia, 381 Barker v. Wingo, 379 Barnes v. Glen Theatre, 138 Barnes v. State, 177 Barron v. Mayor and City Council of Baltimore,

80, 119 Batson v. Kentucky, 109, 119, 381 Baxter v. Palmigiano, 368 Baze v. Rees, 425 Beard v. Banks, 161 Beck v. Ohio, 207 Beckwith v. United States, 346 Beecher v. Alabama, 340 Bell v. Cone, 426 Bell v. Wolfish, 319 Bennis v. Michigan, 416 Benton v. Maryland, 444 Berger v. New York, 325 Berghuis v. Thompkins, 350–351, 362 Berkemer v. McCarty, 245, 346, 362 Betts v. Brady, 387 Blockburger v. United States, 398 Blueford v. Arkansas, 368 Board of Regents of State Colleges v. Roth,

84, 119 Boddie v. Connecticut, 84, 119 Bond v. United States, 289, 315 Bounds v. Smith, 113, 118–119 Boyd v. United States, 218, 314 Brady v. Maryland, 398 Brandenburg v. Ohio, 141 Brendlin v. California, 245–246 Brewer v. Williams, 222–223, 391, 400 Brigham City, Utah v. Stuart, 306 Brinegar v. United States, 205, 208

Briscoe v. Virginia, 384 Brower v. County of Inyo, 234–235 Brown v. Board of Education of Topeka,

92–93, 119 Brown v. Entertainment Merchant’s

Association, 145 Brown v. Illinois, 222 Brown v. Mississippi, 338, 362 Brown v. Plata, 431 Brown v. Texas, 248 Browning-Ferris Industries v. Kelco Disposal,

411, 413 Bryan v. McPherson, 264, 266 Bullcoming v. New Mexico, 384 Burket v. Angelone, 354 Bush v. Gore, 74–75, 445

California v. Acevedo, 301 California v. Beheler, 346 California v. Ciraolo, 309 California v. Greenwood, 309–310 California v. Hodari D., 234–235 California v. Prysock, 343 Camara v. Municipal Court of the City and

County of San Francisco, 317 Campbell v. Blodgett, 423 Cantwell v. Connecticut, 128–129, 444 Carroll v. United States, 300, 314 Cass v. State, 204 Chambers v. Maroney, 300 Chapman v. California, 224 Chavez v. Martinez, 358 Chicago, Burlington & Quincy Railroad Co. v.

Chicago, 368, 444 Chicago v. Morales, 157 Chimel v. California, 292 Chisholm v. Georgia, 443 Christian Legal Society v. Martinez, 159 Church of Lukumi Babalu Aye v. Hialeah,

130, 145 City of Boerne v. Flores, 162 City of Indianapolis v. Edmond, 248 City of Ladue v. Gilleo, 138–139 City of Los Angeles v. Lyons, 262 City of Ontario v. Quon, 323 City of San Diego v. Roe, 150 Clark v. Community for Creative Non-Violence,

139 Clinton v. Jones, 18 Codispoti v. Pennsylvania, 381 Cohen v. California, 146 Cohen v. Cowles Media Company, 153 Coker v. Georgia, 417 Cole v. Arkansas, 444 Coleman v. Alabama, 395, 400 Colgrove v. Battin, 438 Colorado v. Bertine, 302–303 Colorado v. Connelly, 340, 350 Colorado v. Spring, 351 Commonwealth v. Bly, 311 Commonwealth v. Tarver, 295 Connecticut v. Barrett, 341 Connick v. Myers, 149 Coolidge v. New Hampshire, 290

Cooper v. Pate, 112–113, 119 Corley v. United States, 340 Coy v. Iowa, 383 Crawford v. Washington, 383 Cruz v. Beto, 162 Cruz v. Hauck, 113, 119 Culombe v. Connecticut, 338 Cupp v. Murphy, 254 Curtis v. Loether, 438

Davis v. Beason, 128 Davis v. United States, 219, 228, 354 Davis v. Washington, 383 De Canas v. Bica, 105, 119 DeJonge v. Oregon, 157 Delaware v. Prouse, 242 Dennis v. United States, 140 Dickerson v. United States, 356–357, 362 District of Columbia v. Heller, 172–174 Dormire v. Wilkinson, 354 Douglas v. California, 398, 400 Draper v. United States, 207 Dred Scott v. Sandford, 77–80, 92, 119, 443 Duckworth v. Eagan, 344 Dunaway v. New York, 254 Duncan v. Louisiana, 82–83, 119, 380, 444 Duryea v. Guarnieri, 157

Eddings v. Oklahoma, 426 Edwards v. Arizona, 352–353, 362 Edwards v. City of Goldsboro, N.C., 176 Elkins v. United States, 220 Employment Division v. Smith, 129 Engle v. Vitale, 126 Escobedo v. Illinois, 341, 362, 387–389, 400 Estelle v. Gamble, 431 Estes v. Texas, 379 Everson v. Board of Education, 126, 444 Ewing v. California, 417 Ex parte Hull, 112 Ex parte McCardle, 60, 75

Faretta v. California, 389, 402 Fikes v. Alabama, 339 Firefighters Local Union No. 1784 v. Stotts,

95, 119 Fisher v. University of Texas at Austin,

96, 119 Fletcher v. Peck, 63 Florence v. Board of Chosen Freeholders of the

County of Burlington, 319 Florida v. J.L., 189, 238 Florida v. Jardines, 309 Florida v. Jimeno, 286 Florida v. Powell, 344, 362 Florida v. Royer, 240 Florida v. Wells, 303 Fogel v. Collins, 133 Ford v. Wainwright, 428 Foster v. California, 394 Frazier v. Cupp, 340 Fullilove v. Klutznick, 95, 119 Fulwood v. Clemmer, 162 Furman v. Georgia, 424

Case Index iStockphoto/Thinkstock

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484 Case Index

Gagnon v. Scarpelli, 404 Gannett Co. v. DePasquale, 154, 379 Garcetti v. Ceballos, 150 Gardner v. Broderick, 336 Garrity v. New Jersey, 336 Georgia v. Randolph, 285 Gertz v. Robert Welch, Inc., 141 Gibbons v. Ogden, 105, 119 Gideon v. Wainwright, 387, 400–401, 444 Gilbert v. California, 394 Gitlow v. New York, 133, 444 Glasser v. United States, 381 Goldman v. Weinberger, 131 Goldwater v. Carter, 51 Gowder v. City of Chicago, 175 Graham v. Connor, 260–261, 265, 267 Graham v. Florida, 418 Green v. United States, 367 Greenwold v. Wisconsin, 340 Gregg v. Georgia, 424–425 Griffin v. Coughlin, 131 Griffin v. Wisconsin, 320–321 Griswold v. Connecticut, 85–87, 119,

439, 445 Groh v. Ramirez, 282–283 Grutter v. Bollinger, 95–96, 119 Guest v. Leis, 327

Hague v. CIO, 444 Halbert v. Michigan, 387 Hamilton v. Alabama, 396, 400 Hamilton v. Regents of University of

California, 125 Hampton v. Mow Sun Wong,

101, 119 Hampton v. United States, 364–365 Harmelin v. Michigan, 417 Harrington v. California, 224 Harris v. Commonwealth, 238 Harris v. New York, 357, 362 Harris v. South Carolina, 386 Hastings v. Barnes, 256 Haynes v. Washington, 341 Heffron v. International Society for Krishna

Consciousness, 131 Helling v. McKinney, 432 Herring v. New York, 401 Herring v. United States, 227 Hester v. United States, 307 Hiibel v. Nevada, 336 Hodel v. Virginia Surface Mining & Reclamation

Assn., Inc., 442 Holder v. Humanitarian Law Project, 134 Hollingsworth v. Perry, 99, 119 Hope v. Pelzer, 432 Horton v. California, 290 Howes v. Fields, 347, 368 Hudson v. Michigan, 219, 280 Hudson v. Palmer, 319 Hurtado v. California, 367 Hutchinson v. Proxmire, 154

Illinois v. Caballes, 302 Illinois v. Gates, 206, 208 Illinois v. Lafayette, 296, 300 Illinois v. Lidster, 249 Illinois v. McArthur, 211, 278, 280 Illinois v. Perkins, 345, 347, 363, 368 Illinois v. Rodriguez, 226, 285–286 Illinois v. Wardlow, 215, 239 In re Gault 1967, 337, 400 In re Oliver, 444 Ingraham v. Wright, 420

J.E.B. v. Alabama, 109, 119 Jackson v. Indiana, 411 Jacobson v. United States, 364 James v. Louisiana, 292 Johnson v. Avery, 113, 119 Johnson v. Dugger, 394 Johnson v. Zerbst, 402 Jones v. United States, 114, 119, 429 Jordan v. Gardner, 319

Kansas v. Ventris, 399–400 Katz v. United States, 275–276, 324 Kaupp v. Texas, 254 Kelley v. Johnson, 136 Kentucky v. King, 304, 309 Kinsella v. Singleton, 16 Kirby v. Illinois, 394 Klopfer v. North Carolina, 444 Knight v. Florida, 425 Knowles v. Iowa, 299 Konigsberg v. State Bar of California, 141 Konop v. Hawaiian Airlines, Inc., 327 Kyllo v. United States, 291–292

Lemon v. Kurtzman, 126 Lewis v. City of New Orleans, 146 Local 28, Sheet Metal Workers International

Association v. EEOC, 95, 119 Lochner v. New York, 85, 87, 119 Locke v. United States, 205 Lockhart v. McCree, 428 Lockyer v. Andrade, 417 Lopez v. United States, 364 Louisiana ex rel. Francis v. Resweber, 411 Lynch v. Donnelly, 129

Madsen v. Women’s Health Center, Inc., 143 Mallory v. Hogan, 444 Mallory v. United States, 340 Malloy v. Hogan, 336 Mapp v. Ohio, 220, 226, 444 Marbury v. Madison, 43, 62–63, 73–75, 112,

119, 356 Marron v. United States, 277 Marshall v. Barlow’s Inc., 283, 317 Martin v. Hunter’s Lessee, 63,

73–74 Maryland v. Buie, 296 Maryland v. Craig, 383 Maryland v. Dyson, 301 Maryland v. Garrison, 226 Maryland v. King, 312, 319 Maryland v. Macon, 276 Maryland v. Shatzer, 352–353, 362 Maryland v. Wilson, 245 Massachusetts Board of Retirement v. Murgia,

108, 119 Massachusetts v. Sheppard, 225–226 Massiah v. United States, 341, 390, 400 Mathews v. Eldridge, 84, 119 Maynard v. Cartwright, 426 McClesky v. Kemp, 110, 119, 427 McCreary County v. ACLU, 127–128 McCulloch v. Maryland, 16, 441 McDonald v. Chicago, 83, 119, 173–174, 444 McIntyre v. Ohio Elections Commission, 154 McNabb v. United States, 340 McNeil v. Wisconsin, 398 Melendez-Diaz v. Massachusetts, 383 Mempa v. Rhay, 389, 404 Mendenhall v. United States, 233, 235 Messerschmidt v. Millender, 283 Meyer v. Nebraska, 83, 85, 119

Michigan Department of State Police v. Sitz, 248 Michigan v. Bryant, 383 Michigan v. Chesternut, 254 Michigan v. Harvey, 399 Michigan v. Jackson, 396 Michigan v. Long, 247, 288 Michigan v. Mosley, 350, 362 Michigan v. Summers, 211, 281 Michigan v. Tucker, 284 Miller v. Alabama, 418 Miller v. California, 146, 153 Miller v. United States, 209 Mincey v. Arizona, 340 Minnesota v. Carter, 49–50, 258 Minnesota v. Dickerson, 289 Minnesota v. Hershberger, 131 Minnesota v. Olson, 258, 303 Minnick v. Mississippi, 354, 362, 397 Miranda v. Arizona, 41, 245, 335, 338–359, 362,

390, 400 Missouri v. Frye, 400–401 Missouri v. McNeely, 304 Missouri v. Seibert, 355–356, 362 Monroe v. Pape, 286 Montejo v. Louisiana, 397 Mooney v. Holohan, 398 Moore v. City of Albany, 36 Moore v. Illinois, 400 Moore v. Michigan, 395, 400 Moore v. People, 319 Morgan v. Illinois, 428–429 Morrissey v. Brewer, 320 Muehler v. Mena, 282 Murray v. Curlett, 126 Murray v. United States, 224

NAACP v. Alabama, 159 National Park Hospitality Association v.

Department of the Interior, 50 National Socialist Party v. Skokie, 142 Near v. Minnesota, 153, 444 Nebbia v. New York, 86–87, 119 Neil v. Biggers, 395 New Jersey v. T.L.O., 318, 323 New York v. Belton, 297–298 New York v. Quarles, 359, 362 New York v. United States, 442 New York v. Zenger, 152–153 New York Times v. Sullivan, 153 Nix v. Williams, 222–223, 392 Norris v. Alabama, 109, 119 North Carolina v. Butler, 352, 362 North Carolina v. Pearce, 367

O’Conner v. Ortega, 322 O’Lone v. Estate of Shabazz, 162 Ohio v. Robinette, 284 Oliver v. United States, 308 Olmstead v. United States, 275, 440 Oregon v. Elstad, 345, 354–355, 362 Oregon v. Mathiason, 345–347 Osborn v. United States, 324 Overton v. Bazetta, 432

Palko v. Connecticut, 82, 119 Parker v. Gladden, 444 Patterson v. Illinois, 351, 402 Payton v. New York, 253, 305 Pennsylvania v. D.M., 189 Pennsylvania v. Mimms, 245–246 Pennsylvania v. Muniz, 346 People v. Loria, 286 People v. McNeil, 340

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Case Index 485

People v. Shivers, 347 Perry v. New Hampshire, 395 Pickering v. Board of Education, 147 Plessy v. Ferguson, 82, 92, 119 Plyler v. Doe, 101, 444 Pointer v. Texas, 444 Powell v. Alabama, 386, 400, 444 Press-Enterprise Co. v. Superior Court, 379 Presser v. Illinois, 173 Prewitt v. State of Arizona ex rel. Eyman, 161 Prince v. Massachusetts, 131 Printz v. United States, 183, 442 Procunier v. Martinez, 161 Public Service Comm’n v. Havemeyer, 204 Pulley v. Harris, 417

Quinones-Ruiz v. United States, 315

Rakas v. Illinois, 50 R.A.V. v. City of St. Paul, 138 Rawlings v. Kentucky, 207 Rawlins v. Georgia, 382 Regents of the University of California v. Bakke,

94–95, 119 Reno v. American Civil Liberties Union,

144–145, 150 Reynolds v. United States, 131 Rhode Island v. Innis, 348–349, 362 Rhodes v. Chapman, 431 Ricci v. Destefano, 97, 119 Richards v. Wisconsin, 211 Richmond Newspapers, Inc. v. Virginia, 84,

119, 379 Ring v. Arizona, 429 Roberts v. United States Jaycees, 159 Robinson v. California, 417, 423, 445 Rochin v. California, 221, 337 Roe v. Wade, 49, 71, 86, 119 Rogers v. Richmond, 340, 362 Roper v. Simmons, 52, 427 Rosenberger v. Rector and Visitors of the

University of Virginia, 144 Roth v. United States, 153 Ruffin v. Commonwealth, 112, 119 Ruiz v. Estelle, 431 Rupe v. Wood, 423 Ryburn v. Huff, 307

Safford Unified School District v. Redding, 318 Salas v. State, 297 Samson v. California, 321, 322 Sattazahn v. Pennsylvania, 367 Saucier v. Katz, 269 Schenck v. United States, 140 Schmerber v. California, 303 Schriro v. Summerlin, 429 Schuette v. Coalition to Defend Affirmative

Action, 96, 119 Scott v. Harris, 258–259, 267 Scott v. Illinois, 387 Segura v. United States, 223 Seling v. Young, 368 Shadwick v. City of Tampa, 209 Shapiro v. Thompson, 101, 119 Shaw v. Murphy, 161–162 Shelby County v. Holder, 446 Sheppard v. Maxwell, 154 Sherman v. United States, 364 Silverthorne Lumber Co. v. United States, 221 Simmons v. South Carolina, 429 Singleton v. Norris, 428 Skinner v. Railway Labor Executives’

Association, 276

Small v. United States, 183 Smallwood v. Florida, 294 Smith v. Hooey, 404 Smith v. Maryland, 325 Smith v. United States, 205 Snyder v. Louisiana, 382 Snyder v. Phelps, 143 Solem v. Helm, 417 Sorrells v. United States, 364 South Dakota v. Opperman, 302 Spano v. New York, 386 Spence v. State of Washington, 135 Spinelli v. United States, 208 Stack v. Boyle, 413 Stanford v. Kentucky, 426 State v. Athan, 311 State v. Heald, 207 State v. Jackson, 325 State v. Kaluna, 295 State v. Lewis, 287 State v. Massey, 131 State v. Mimmovich, 207 State v. Moore, 425 State v. Pluth, 251 State v. Robinson, 354 State v. Schumacher, 340 State v. Spencer, 359 State v. Wickline, 311 States v. Matlock, 284 Stevens v. United States, 172 Stone v. Graham, 126 Stone v. Powell, 225 Stoner v. California, 276 Stovall v. Denno, 394, 395 Strauder v. West Virginia, 109, 119, 381 Street v. New York, 137 Strickland v. Washington, 401 Sugarman v. McDougall, 101, 119 Sussex Land & Live Stock Co. v. Midwest

Refining Co., 204 Swain v. Alabama, 109, 119, 381

Tague v. Louisiana, 350 Taylor v. Alabama, 222 Taylor v. Louisiana, 381 Teague v. Lane, 65, 75 Tennessee v. Garner, 260, 266–267 Terry v. Ohio, 215–217, 237–238, 254, 287, 289,

322 Texas v. Cobb, 398 Texas v. Johnson, 137 Thomas v. Union Carbide, 438 Thompson v. McNeil, 426 Thompson v. Oklahoma, 426 Thornburg v. Abbott, 161 Thornton v. United States, 298–299 Townsend v. Burke, 399, 400 Trop v. Dulles, 411, 416 Turner v. Safley, 160–161, 319

United States v. Alvarez, 147 United States v. American Library

Association, 151 United States v. Anderson, 207 United States v. Andrus, 327 United States v. Arvizu, 215 United States v. Bajakajian, 416 United States v. Ballard, 340 United States v. Banks, 210, 280, 354, 400 United States v. Bell, 340 United States v. Biswell, 317 United States v. Brignoni-Ponce, 105, 119, 250 United States v. Calandra, 219, 221

United States v. Carolene Products Co., 87, 119 United States v. Chadwick, 295 United States v. Cleaveland, 201 United States v. Conner, 326 United States v. Cortez, 237 United States v. Councilman, 328 United States v. Cronic, 401 United States v. Cruikshank, 171 United States v. Darby, 439, 441 United States v. Davis, 310 United States v. Decastro, 175 United States v. Di Re, 207 United States v. Dunn, 309 United States v. Edwards, 299 United States v. Emerson, 172 United States v. Finley, 295, 327 United States v. Flores-Montano, 250 United States v. Good, 416 United States v. Graham, 326 United States v. Grigg, 247–248 United States v. Guarno, 340 United States v. Haley, 290 United States v. Hazzard, 411 United States v. Henry, 390 United States v. Hensley, 237 United States v. Ingrao, 206 United States v. Jacobsen, 202–203, 315 United States v. Johnson, 303 United States v. Jonas, 347 United States v. Jones, 276, 277 United States v. Karo, 324 United States v. Klein, 60, 75 United States v. Knights, 204, 321 United States v. Knotts, 324 United States v. Koch, 340 United States v. Lara, 367 United States v. Leon, 217, 225–226 United States v. Leonard, 321 United States v. Lopez, 113, 119, 442 United States v. Lucas, 297 United States v. Martinez-Fuerte, 250 United States v. McCarty, 206 United States v. McClinton, 340 United States v. Miller, 171, 171–172 United States v. Molinaro, 295 United States v. Montoya de Hernandez,

250, 314 United States v. Moylan, 382 United States v. Muhlenbruch, 347 United States v. O’Brien, 136 United States v. Ortiz, 316 United States v. Paradise, 95, 119 United States v. Parker, 201 United States v. Patane, 362–363 United States v. Pavelski, 237 United States v. Perrine, 327 United States v. Pinson, 291 United States v. Pritchard, 248 United States v. Ramsey, 314 United States v. Robinson, 294–295 United States v. Ross, 201, 301 United States v. Russell, 365 United States v. Salerno, 412–413 United States v. Santana, 253, 258 United States v. Sharpe, 240 United States v. Simmons, 297 United States v. Skoien, 175 United States v. Smith, 325, 327 United States v. Sokolow, 208, 236, 315 United States v. Stevens, 134 United States v. Thomas, 321 United States v. Ursery, 416 United States v. Valenzuela-Bernal, 385

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486 Case Index

United States v. Virginia, 94, 119 United States v. Wade, 393, 400 United States v. Walther, 202 United States v. Warshak, 326 United States v. Watson, 252–253 United States v. White, 325 United States v. Windsor, 100, 119 United States v. Wright, 347 United States v. Wurie, 295 United Steelworkers of America v. Weber,

95, 119

Van Orden v. Perry, 128 Vause v. United States, 307 Virginia v. Black, 138 Virginia v. Harris, 65, 75 Virginia v. Moore, 229–230

Wallace v. Jaffree, 126 Warden v. Hayden, 258, 304 Warner v. Orange County Dept. of

Probation, 131 Washington v. Glucksberg, 86, 119 Washington v. Texas, 444 Watts v. Indiana, 342 Weeds v. United States, 286 Weeks v. United States, 217, 220 Welch v. Butler, 340 Welsh v. Wisconsin, 304–305 West Virginia State Board of Education v.

Barnette, 129, 442 Whitley v. Albers, 431 Whren v. United States, 247 Wiggins v. Smith, 401 Wilson v. Arkansas, 210

Wilson v. Seiter, 431 Wilson v. Swing, 159 Winston v. Lee, 276 Wolf v. Colorado, 201, 220, 444 Wong Sun v. United States, 222 Wolff v. McDonnell, 112, 119 Wooley v. Maynard, 129 Wright v. United States, 285 Wygant v. Jackson Board of Education,

95, 119 Wyoming v. Houghton, 301

Yates v. United States, 347 Youngstown Sheet & Tube Co. v. Sawyer, 57, 75

Zobrest v. Catalina Foothills School District, 127 Zurcher v. Stanford Daily, 154

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487

Adams, Benjamin, 51–52, 56 Agresti, James D., 186, 193 Anderson, Terry M., 131, 146, 158 Arkin, William M., 114–115, 118 Armento, Beverly J., 6, 16, 20–21, 28

Bacigal, Ronald J., 388, 403, 406 Bailey, Patricia J., 393, 406 Baker, Al, 242, 271 Baker, Peter, 67, 74 Baldus, David C., 110, 118 Basich, Melanie, 264, 271 Bass, Herbert J., 9, 28 Basu, Kaustuv, 177, 193 Beard, Charles A., 12, 28 Beard, Mary R., 12, 28 Belz, Emily, 160, 163 Bevbjerg, Victor, 262, 271 Bilukham, O. O., 187, 193 Bohm, Robert M., 427, 430, 434 Boyter, Jennifer, 434 Brave, Michael, 265, 271 Breen, T. H., 7, 22, 28 Brown, Richard C., 9, 28 Brunner, Borgna, 94, 118 Burger, Warren E., 66, 84, 126, 136, 219,

357, 391

Callanan, Joe, 259, 271 Castellano, Anthony, 186, 193 Cho, Henry, 96, 118 Christie, Bob, 100, 104 Clear, Todd R., 417, 431, 434 Cohen, Adam, 151, 163 Cohen, Henry, 146–147, 164 Cole, George F., 53, 56, 260, 271, 417,

431, 434 Collins, John M., 255, 271 Cooper, Jonathan J., 104, 118 Cope, Curtis J., 259, 271 Corley, Mike, 393, 406 Crosby, A., 187, 193

Davis, Burke, 118 Davis, Kenneth C., 124, 164 del Carmen, Rolando V., 219, 225–226,

228–229, 232, 266, 271, 314, 330, 358, 366, 374, 404, 406

DeLone, Miriam, 32, 56, 106, 118 Divine, Robert A., 7, 22, 28 Donohue, John J. III, 187, 193 Ducat, Craig R., 62, 74, 94–95, 118, 124, 141,

144, 164, 430, 434 Dwyer, Terrence P., 68–69, 74, 105, 118,

149–150, 164

Eldridge, Joanne, 177, 193 Engels, Frederick, 32, 56

Fagan, Jeffrey A., 428, 434 Farber, Daniel A., 63, 74 Ferdico, John N., 249, 261, 271, 290, 330, 340,

374, 380, 406

Fradella, Henry F., 249, 261, 271, 340, 374, 380, 406

Franklin, Benjamin, 328 Fredrickson, George M., 7, 22, 28

Gaertner, Susan, 393, 406 Gardner, Thomas J., 131, 146, 158 Garner, Gerald W., 157, 164 Garry, Lisa M., 106 Glennon, Jim, 206, 232 Goebel, Julius Jr., 60, 74 Griffith, David, 104, 118 Grimm, Fred, 177, 193

Haley, Keith, 427, 430, 434 Hall, Jerome, 201, 232 Hamilton, Alexander, 73 Hann, R. A., 187, 193 Hanson, Roger A., 110, 118 Harrington, John, 393, 406 Hawkes, Andrew, 262, 271 Heal, Sid, 262, 271 Herbert, Bob, 241, 271 Hess, Kären Matison, 97, 107, 118 Hockenberry, Sarah, 51–52, 56 Holt, Kathryn A., 45, 56 Howatt, Glenn, 178

Ingram, David, 111, 118

Jacoby, Jeff, 11, 28 Judge, Lisa, 298, 330

Kenny, John, 262, 271 Klieman, Matthew, 110, 118 Kornblut, Anne E., 118 Kovandzic, Tomislav V., 187, 193 Kowalski, Brian R., 107–108, 118 Kruger, Karen, 108–109 Kruger, Karen J., 336, 374

LaFountain, Robert C., 45, 56 Larson, Mark R., 393, 406 Levy, Leonard W., 7, 21, 28 Lieberman, Jethro K., 16, 19, 23, 26, 28 Liptak, Adam, 68, 74 Long, Colleen, 188, 193, 241, 271 Lott, John R., Jr., 187, 193 Lundman, Richard J., 107–108, 118 Lysakowski, Matthew, 102, 118

Madison, James, 168, 170 Maher, Timothy M., 338, 341, 374 Mahoney, Dennis, 28 Markon, Jerry, 104, 118 Maruschak, Laura M., 320, 330 Marvell, Thomas B., 193 Marx, Karl, 32, 56 Maslow, Abraham H., 197, 232 Mayes, Steve, 133, 135, 164 McDonald, Pam, 97–98, 118, 232, 241,

265, 271, 290, 318, 330, 336, 345, 351, 374

McEnroe, Paul, 178 Means, Randy, 97–98, 118, 227, 232, 241, 259,

261–262, 265, 271, 290, 318, 330, 336, 345, 351, 374

Mears, Bill, 229, 232 Mecklenburg, Sheri H., 393, 406 Milazzo, Carl, 266, 271 Mitchell, Ralph, 16, 28 Modafferi, Peter A., 393, 406 Monk, Linda R., 410, 434 Moore, Carole, 430, 434 Moule, Jean, 92, 118

Nash, Gary B., 6, 16, 20–21, 28 Nowicki, Ed, 188, 193 Nuss, Jeannie, 419–420

O’Brien, Tim, 160, 164 O’Connor, Thomas P., 338, 341, 374 O’Linn, Mildred K., 265, 271 Orthmann, Christine Hess, 97 Ostrom, Brian J., 110, 118 Ostrom, Charles W., 110, 118 Overholt, Roger D., 334–335, 374

Packer, Herbert L, 32–34, 56 Parks, Erika, 320, 330 Pearsall, Albert Antony III, 102, 118 Perkins, Chris, 393, 406 Petrocelli, Joseph, 345, 358, 374, 415, 434 Planty, Michael, 186, 193 Pope, Jill, 102, 118 Potok, Mark, 169, 193 Pound, Roscoe, 29 Priest, Dana, 114–115, 118 Pulaski, Charles A., 110 Puzzanchera, Charles, 51–52, 56

Reisig, Michael D., 417, 431, 434 Revere, Paul, 10 Rivera, Ray, 242, 271 Roberts, Rich, 152, 164 Robinson, Matthew, 107, 118 Robinson, Robert R., 69, 75 Roh, Sunghoon, 107, 118 Rubin, James K., 310, 330 Rutledge, Devallis, 65, 75, 224, 229, 232, 238,

241, 271, 296–297, 317, 323, 330, 343, 345, 350, 352, 364, 374, 390–391, 397, 406

Saad, Lydia, 429, 434 Salter, Christopher L., 6, 16, 20–21, 28 Sanchez, Antonio J., 310, 330 Savage, Charlie, 155–156, 328, 330 Scarry, Laura L., 97, 118, 133, 150, 164, 241,

256, 271 Schauffler, Richard Y., 45, 56 Schuck, Jason, 394, 406 Scoville, Dean, 262, 271 Seidel, Greg, 259, 261–262 Shapiro, Ari, 389, 406 Shin, Annys, 151, 154 Siegel, Larry, 61

Authors Index iStockphoto/Thinkstock

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488 Authors Index

Simpson, O.J., 154 Sledge, Matt, 243 Slocumb, Dennis, 152, 164 Smith, Christopher E., 53, 56, 66–67, 75,

260, 271 Smith, Reid K., 186, 193 Smithson, S., 89 Solar, Mark, 106 Spector, Elliot B., 59, 75 Spohn, Cassia, 56, 106, 118 Stockton, Dale, 257, 271 Strickland, Shauna M., 45, 56 Sturman, Shane G., 341, 374 Sykes, Marquita, 94, 97, 118

Totten, Christopher D., 249, 261, 271, 340, 374, 380, 406

Trulson, Chad R., 404, 406 Truman, Jennifer L., 186, 193 Tucker, Melvin L., 334–335, 374

Vennochi, Joan, 257, 271 Vernon, Rebecca, 134, 164

Walker, Samuel, 32, 56, 106, 106, 118

Wallentine, Ken, 298, 330 Ward, Meredith Mays, 186, 193 Wethal, Tabatha, 185, 193

Wexler, Chuck, 101, 118, 187, 190–191

Williams, R. Hal, 7, 22, 28 Wilson, Bradford P., 217, 232 Wilson, James, 21 Wilson, Kim, 322, 330 Wisecarver, Chris, 334–335, 374 Wixson, Karen K., 6, 16, 20–21, 28 Wolfe, Billy, 116 Woodward, David, 12 Woodworth, George, 110, 118 Worrall, John L., 415, 434 Wu, Frederick, 134, 164 Wyllie, Doug, 104, 118

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489

ABC, This Week, 104 Abdulmutallab, Umar Farouk, 360 abortion, 143 Abu Ghraib Prison, 216 Access to Justice Initiative, 389 accusation, being informed of, 383 Adams, John, 62 Adams, Samuel, 9, 452 adjudication hearing, 52 administrative warrant, 317 administrative liability, 228 adversarial judicial system, 49, 385 affirm, defined, 42 affirmative action, 98 affirmative action programs, 94–98 African Americans, in early America, 6, 10 aftercare, 52 Aftergood, Steven, 89, 90 age

and capital punishment, 426–427 discrimination based on, 108 and voting rights, 446–447

Air Line Pilots Association (ALPA), 327 al-Arian, Sami, 371 Al Qaeda, 155

terrorist leaders, 89 Alcoholics Anonymous (AA), and religious

freedom, 131 Alien and Sedition Acts of 1798, 139 Alito, Samuel, Jr., 57, 66–68 Almonor, Devin, 243 Alvarez, Xavier, 147–149 amendments, 20 American Bar Association

Public Education Division, 72 website of, 471

American Civil Liberties Union, 91, 127, 142, 244, 360

American Colonies dissension in, 7–9 ethnic population of, 6 timeline of events in, 22–23

American dream, 96 American Indians. see Native Americans American Newspaper Publishers

Association, 72 American Revolution, 5, 10–11, 13 Americans with Disabilities Act of 1990,

99, 108 amicus brief, 50 Amish, religious freedom of, 131 animal cruelty, 134 animal sacrifice, 130 anonymous tips, 237–238 Antabuse, 421 Anthony, Casey, 154 anti-federalists, 20 anti-Semitism, 124 appeals

and capital punishment, 428 critical stages at, 395–400

appellate jurisdiction, 44 Areopagitica (John Milton), 152

Arizona immigration law of 2010, 103–105

arraignment, 396 array, 381 arrest, 250

citizen’s, 269 compared with stop, 235–236 de facto, 254–255 defined, 250 escalating events and, 255–257 immunity from, 269 knock-and-announce rule and, 209–211, 255 lawful, 251–253 search of vehicle following, 297–298 with warrant, 253 warrantless

based on probable cause, 252 for crimes committed in the presence of

an officer, 251–252 Articles of Confederation, 11–15, 18 articulable facts, 214 assault rifle, 178 assault weapons, 183–185 Assault Weapons Ban of 2013, 186 asset forfeiture, 415, 415–416 Asset Forfeiture Program, 413 assistance of counsel, 444 Associated Press, 155

calling records, 155–156 Association for Unmanned Vehicle Systems

International, 90 association, freedom of, 159 Association of American Law Schools, 72 Athan, John Nicholas, 312 atheists, and religious freedom, 131 attenuation doctrine, 222 Attica Prison Riot, 111 Atwater, Gail, 229 automobile exception, 300–303

bail, 411–414 case law on, 411 commercial, 413 legislation, 411

Bail Reform Act of 1966, 411–412 Bail Reform Act of 1984, 412–414 Bakke, Alan, 94 balancing test, 141 Baldwin, Abr., 461 Banks, Lashawn, 210 Bassett, Richard, 461 Batson, James Kirkland, 382 Baylor, Greg, 159 Baze, Ralph, 425 beachheading, 354–356 Beccaria, Cesare, 451 Bedford, Gunning Jr., 461 Belton rule, 273 beyond a reasonable doubt, 39 The Bias against Guns (John Lott), 187 Bible Riots of 1844, 124 Biden, Joe, 370 bifurcated trial, 424

Bill of Rights. see U.S. Constitution Black Codes, 79 Black, Hugo, 82, 131, 141, 367, 387 Blackmun, Harry, 66 Blair, John, 461 blind lineup, 393 Bloomberg, Michael, 243 Blount, Wm., 461 blue wall of silence, 150 Bomberg, Neil, 116 border

functional equivalent of, 249 search at, 314–315

Boston Marathon bombing, 360 Bowling, Thomas, 425 Brady Bill. see Brady Handgun Violence

Prevention Act Brady Campaign to Prevent Gun Violence,

174, 177, 190–191 Brady Center, 174, 177, 186 Brady Handgun Violence Prevention Act, 113,

183–184, 442 Brady, James, 113 Brady, John, 398 Brady rule, 398 Branch Davidians, 169 Braxton, Carter, 11 Brearly, David, 460 Breci, Kara, 288 Brendlin, Bruce, 245–246 Brendlin, Scott, 245–246 Brennan, William Jr., 66, 137, 305, 425, 435

freedom of association, 159 Brewer, Jan, 104 Breyer, Stephen, 57, 68, 135, 161, 183,

420, 425 brief, 42

amicus, 50 Broom, Jaco., 461 Brown, Edmund, 145 Brown, James Lynn, 91 Bryan, Carl, 264–265 Bulwer-Lytton, Edward, 152 Bureau of Alcohol, Tobacco, Firearms, and

Explosives, 179 modern day militias and, 169–170

Burger, Warren E., 21 Bush, George H. W., 66 Bush, George W., 51, 66, 369, 371, 445 Butler, Pierce, 461 Butler, Willie, 352

California Civil Rights Initiative (CCRI), 98 California Department of Justice, 91 Canady, Charles T., 293 capital punishment, 423–430

age and, 426–427 appeals and, 428 controversy over, 429–430 costs of, 428 cruel and unusual punishment and,

423–426 demographics of, 426–428

Subject Index iStockphoto/Thinkstock

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490 Subject Index

capital punishment (Continued) DNA evidence and, 430 mental illness and, 428 mental retardation and, 427–428 racial discrimination and, 427 who is executed, 426–428

caption, 41 Cardozo, Benjamin, 82 Caroll, George, 300 Carroll, Danl., 461 carrying a concealed weapon (CCW), 175 Carter, President Jimmy, 51, 183 case

briefing of, 42–43 hearing of, decisions on, 49–51 mootness of, 50 path of, to Supreme Court, 61 ripeness, 50–51 standing of, 49–50

case law, 35 reading, 41–42

castle laws, 176–177 castration, 421 Catholicism, in early America, 124 cell phone searches, 223 Centers for Disease Control and Prevention

(CDC), 187, 191 Central Intelligence Agency, 153 certiorari, 64–65, 114, 127, 130, 144, 210 Chase, Samuel, 66 checkpoints, 248–249 checks and balances, 14, 18 child abuse victim, and right to confront

witness, 383–384 Child Online Protection Act (COPA), 150 child pornography, 150, 151 Christian Burial Speech, 223, 391 Christian Legal Society (CLS), 159 Christmas Day bomb attempt, 114 church, separation from state, 126 CIA, predator-drone program, 89 Cicero, Pro Milone, 420 circumstances

exigent, 303–307 totality of, 205

citations, reading, 41 citizen’s arrest, 268–269 citizenship, 79 Citizenship Clause, 80 Civil Asset Forfeiture Reform Act, 416 civil liability, 228 civil liability, of police officers,

228–229 Civil Rights Act of 1964, 94, 98 civil rights movement, 132 Civil War, 78–80, 109, 440 “clear and present danger” test, 140 “clear and probable danger” test, 140 Clemmons, Maurice, 430 Cleveland Police Department, 216 Clinton, Bill, 18, 66, 183–184 Clymer, Geo., 460 Cobb, Raymond Levi, 398 codified law, 38 Cole, James M., 155 Columbine High School (Colorado), shooting

at, 186, 190 Combined DNA Index System (CODIS), 310 commerce clause, 105, 170 commercial bail, 413 common law, 35

suits at, 437

community caretaking doctrine, 255 comparative law, 53 compensation for taking private

property, 444 compensatory damages, 414 compulsory process, 384–385, 444 concealed carry gun laws, 175–176 concurring opinion, 42, 44, 71–72 conduct, furtive, 206 conducted energy devices (CEDs), 262, 264 conducted energy weapons (CEWs), 264 Cone, Gary, 426 conference, 52 confessions

cases pertaining to, 362 characteristics of the accused, 340–341 false, 341 police conduct and, 339–340 voluntariness and, 338–339 voluntariness of, 341

conflict theory, 32 confrontation clause (confrontation of

witnesses), 444 Congress, 2, 16, 18, 105, 131, 446

creation of, 14 restrictions on, 12 structure of, 445–447

Congress of the Confederation, 13 Congressional Medal of Honor, 147 conscientious objection, 125 consensus theory, 31 consent

third-party, 285 voluntariness test of, 286 waiver test of, 287

consequences of Fourth Amendment violations, 217

conservative, defined, 66 constitution

United States. see U.S. Constitution Constitutional Convention of 1787, 14, 20

delegates to, 13 constitutional law

beginnings of, 5–7 changing face of, 53 historical overview of, 3–28

constitutionalism, 14 constitutionally proscribable, 138 contact, voluntary, 261 contemporaneous, 292 contextual discrimination, 106 continuum of contacts, 212 contraband, 283 Conyers, John, 156 Coolidge, Calvin, 453 corporal punishment, 420 corrections

discrimination in, 111–112 and Eighth Amendment rights,

430–432 Religious Freedom Restoration Act (RFRA)

1993, 162 and Sixth Amendment rights, 404

counsel during criminal investigation, 390–392 at critical stages, 389–400 development of the right to, 389 effective, presumption of, 400–402 right to, 352–354, 385–400

act as one’s own, 402 at critical stages, 389–400 current developments in, 389

key cases regarding, 400 waiver of, 402, 403

role of, 385–386 Court of Appeals, 135 Court Statistics Project, 45 court trial, 382 courts, 43–48

access to, 113 discrimination in, 109–111 federal, 47 officers of, 48 state, 45 system of, 43–48

Crime Control Model, 33 Crime in the United States 2011, 186 crimes, 38, 51 criminal investigation, critical stages during,

390–392 criminal justice, beyond US borders, 53–54 criminal justice system

crime control versus due process, 32–34

equal protection in, 106 criminal liability, 228 criminal liability, of police officers, 228–229 Criminal Police Organization

(INTERPOL), 53 criminal procedure, 200 criminal proceedings, critical stages at,

389–400 criminals, 52 critical stage, 389

at appeals, 395–400 during criminal investigation,

390–392 at hearings, 395–400 at trials, 395–400

“Criticized on Seizure of Records, White House Pushes News Media Shield Law” (Charlie Savage), 155–156

Crook, Shirley, 427 cross burning, 137–138 cross-racial identification, 393 Crowley, James, 257 cruel and unusual punishment, 416–425

capital punishment and, 423–425 Cummings, Sam R., 172 curtilage, 308 custodial interrogation, 345 custody, 345–347

factors indicating custodial situation, 347 Miranda warning and, 345–347 suspect at the police station, 346–347 suspect in custody for another

offence, 347 suspect under arrest, 346

damages compensatory, 414 punitive, 414

Dan of St. Thos. Jenifer, 461 Davis, Edward, 191 Davis, Robert, 354 Dawes, William, 10 Dayton, Jona., 460 de facto arrests, 254–255 Dean, Charlie, 190 Dearman, Adam, 169 Dearman, Randall Blake, 169 death penalty. see capital punishment “Debate over Delaying of Miranda Warning”

(Charlie Savage), 360–361

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Subject Index 491

Declaration of Independence, 10–14 signers of, 5, 11 today, 26

Defense of Marriage Act (DOMA), 100 delegated powers, 440 deliberate elicitation, 391 delinquent, 52 delinquent acts, 51 demurrer, 171 Department of Homeland Security (DHS), 54,

89, 113 Immigration and Customs Enforcement

(ICE), 103 Department of Justice, asset forfeiture

program and, 413 Department of Transportation, 90 Depo-Provera, 421 detainer, 404 detention, 52

preventive, 412 Dickerson, Charles, 356 Dickinson, John, 461 dicta, 42 dictum (dicta), 173 disabilities, discrimination and, 99–100 disciplinary hearings, due process

during, 112 discrimination, 94, 106

access to court and, 113 age, 108 based on religion, 161 because of sexual orientation, 99 color and, 94 contextual, 106 in corrections, 111–113 in courts, 109–111 disabilities and, 108 disciplinary hearings and, 112–113 disparity continuum of, 106 forms of, 98–100 gender, 93 immigration and, 100–102 against Jews, 124 in jury selection, 109 in law enforcement, 107–109 national origin and, 94 other forms of, 98 against people with disabilities,

99–100 pregnancy policies, 108–109 versus prejudice, 92 race and, 94 racial, 93 religion and, 94, 98, 124 residency discrimination, 100 reverse, 96–98 in sentencing, 109–110 sex and, 94 sexual orientation and, 99

disparate treatment, 98 disparity, 106

continuum of, 106 disproportionate minority contact

(DMC), 106 DNA

abandoned, 310–315 collection of from arrested persons, 319 exoneration and, 393 familial databases of, 91

DNA evidence, 430 abandoned DNA, 310–311, 310–313 in the United Kingdom, 90

“The DNA in Your Garbage: Up for Grabs” (Kevin Hartnett), 311–314

DNA theft, 314 “don’t ask don’t tell”, 99 double jeopardy, 367, 367–368, 444 Douglas, William, 85–86, 141, 173 draft-card burning, 136 driving while Asian (“DWA”), 107 driving while Black (“DWB”), 107, 108 driving while Mexican (“DWM”), 107 drones, 89

electronic surveillance and, 89 “Drones Over U.S. Get OK By Congress”

(S. Smithson), 89 Drug Abuse Resistance Education

(D.A.R.E.), 415 Drug Enforcement Administration (DEA),

202, 315 drunk driving

anonymous tips on, 238–239 checkpoints for, 248 destruction of evidence and, 304

due process, 33, 81, 83, 378 and entrapment, 363–365 enumerated rights and, 81–83 incorporation and, 81–83 of law, 80 privacy rights and, 87–88 procedural, 81, 83–84 revolution, 111 substantive, 84–85

due process clause, 80–82, 86 cases incorporating provisions of Bill of

Rights into, 444–445 Duncan, Gary, 82, 380 Durden, Tom, 169 Dyson, Kevin, 301

Eastwood, Clint, 177 Edmunds, Nancy G., 360 Edwards, John, 370 Edwards, Kenneth, 176 Ekas, Robert, 135 elections, 445–447 electoral college, 17 electoral system, 445 electors, 17 Electronic Communications Privacy Act

(ECPA), 326–327 Title I statute of, 326 Title II statute of, 326

electronic control devices (ECDs), 262, 265–266

Electronic Frontier Foundation, 89–90 Electronic Privacy Information Center, 90 electronic surveillance, 275, 323–326, 328

drones and, 89 privacy and, 323–326, 328

Emancipation Proclamation, 79 emergency aid doctrine, 306–307 End Racial Profiling Act (ERPA) of 2007, 101 entrapment, 363–365 enumerated rights, 81–83 Equal Employment Opportunity Act

of 1972, 94 Equal Pay Act of 1963, 94 equal pay for equal work, 93–94 equal protection clause, 80, 99, 109 equal protection under the law,

76–120 in criminal justice system, 80, 99–120 and jury selection, 109

equality, struggle for, 93–98 Escobedo, Danny, 387 Espionage Act (1917), 140 establishment clause, 50, 131–132, 144 establishment clause (establishment of

religion), 444 Establishment Clause of the First

Amendment, 126 Euripides, 152 evidence

admissible, 198 exclusionary rule and, 217–222 as fruit of the poisonous tree, 221–222 and good faith exception, 225–228 and harmless error exception,

224–225 hearsay, 384 inadmissible, 199 and inevitable discovery doctrine,

222–223 obtained in a manner that shocks the

conscience, 221 plain view, 290–292 valid independent source exception and,

223–224 excessive bail, 445 excessive fines, 445 exclusionary rule, 217, 444

exceptions to, 222–228 good faith exception, 225–228 harmless error exception to,

224–225 valid independent source exception and,

223–224 exclusive jurisdiction, 44 execution

and age of prisoner, 426–427 lengthy delays in, 425–426 lethal injection, 424–425

exigent circumstances, 303–307 expectation of privacy, 204 expression

by public employees, 147, 149–150 symbolic, 135–139

extralegal factors, 106

FAA. see Federal Aviation Administration (FAA)

Facebook, 178 Fair Housing Act, 98, 438 Fair Labor Standards Act of 1938, 441 false confessions, 341

compliant confessions, 341 internalized, 341 voluntary confessions, 341

familial DNA databases, 87, 91 Due Process and Privacy Rights, 88

“Familial DNA Hunt Brings Legal Questions” (United Press International), 91

Fay, Michael, 417 FBI. see Federal Bureau of Investigation (FBI) FEAR (Forever Enduring Always

Ready), 169 Federal Assault Weapons Ban, 178 Federal Aviation Administration (FAA),

89–90 Reauthorization Act, 89

Federal Bureau of Investigation (FBI), 103, 113, 155, 184, 187, 278, 360

and modern-day militias, 169–170 Federal Communications Decency Act

(CDA), 145

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492 Subject Index

federal courts, 47–48 of appeal, 48 levels in, 44 special, 47

Federal Death Penalty Act of 1994, 429 Federal Express, 202 Federal Firearms Act (1938), 182 federal firearms license (FFL), 186 Federal Gun Control Act of 1968, 186 federal income tax, 447 Federal Judiciary Act of 1789, 59 Federal Labor Relations Authority

(FLRA), 116 federal power

check on, 113–114 and individual rights, 80

Federal Rules of Civil Procedure, 40 federalism, 440

revisited, 114 The Federalist Papers (Madison), 20, 73,

154, 441 Number 46, 168

Federalists, 20 Federation of American Scientists, 89 Few, William, 461 fighting words, 146 fines, 414–416 Firearm Risk Protection Act of 2013, 186 firearms, 178

domestic abuse and, 172 restrictions on, 174 restrictions on types of, 178

First Continental Congress, 9 Fischer, Gail, 285 Fisher, Abigail, 96 FitzSimons, Thos., 460 flag burning, 137 fleeing felon rule, 260, 266 flight from police, seizure and,

239–240 “Florida Court Rules Cellphone Search

Without a Warrant Is Unconstitutional” (Associated Press), 293–294

Fogel, Matthew, 133 Food and Drug Administration, 201 force

continuum of, 263 deadly, 266–267 less-lethal force, 262–264 reasonable, 260–262 in searching arrested person, 296–297 tasers and, 264–266 use of, 259–260

Ford, Gerald R., 66 Fort Hood shooting, 114 Fortas, Abe, 337, 401 Fourth Circuit, 143 Frankfurter, Felix, 337–338, 340, 364 Franklin, Benjamin, 8, 12, 19, 460 free exercise clause, 128 free exercise clause (free exercise of

religion), 444 free exercise clause of, 128–131 Free Flow of Information Act, 155 free speech, 132 Free Speech Movement, 142–143 freedom, 121–165

of assembly, 144, 157–158, 444 of association, 158–160 to petition government, 444 preferred freedoms approach to, 142 of the press, 152–157, 444

of religion, 124–132 corrections and, 161

of speech, 132–153, 444 from unreasonable interference by

government, 205 French and Indian War, 7 fresh pursuit, 257 frisk, 195, 215. see also stop and frisk

warrantless search and, 287–288 functional equivalent, 249 furtive conduct, 206

Gallup Poll (June 16, 2010), immigration and, 101–102

Garner, Anthony, 169 Gates-Crowley Event, 257 Gates, Henry, 257 gender

discrimination and, 93, 159 equality and, 98 in jury selection, 109 and voting rights, 446–447

Genetic Bill of Rights, 313 genetic material, 313. see also DNA Geneva Convention, 54 “Georgia: More Charges in Militia Plot”

(Robbie Brown), 169–170 Gettysburg Address, 79 Gilman, Nicholas, 460 Ginsburg, Ruth Bader, 57, 66, 68, 135, 160,

189, 246 global positioning systems (GPS),

surveillance and, 328 Goddard, Colin, 186 Goldberg, Arthur, 389 good faith exception, 225 Goodlatte, Robert W., 155 Gore, Al, 445 Gorham, Nathaniel, 460 government

agencies of, and USA PATRIOT Act, 369–370

balanced, 441 continuum of contacts of, 212–214 delegated powers of, 440 executive branch of, 14, 16–18 internal sanctions and, 228–229 judicial branch of, 14, 18 judicial power of federal, 442 legislative branch of, 16–17 limited, 7 misconduct of, and exclusionary rule,

228–229 need to know of, 336 powers of, 113–114 reserve powers of, 440

Government Accountability Office (GAO), 183

government employees, regulated by Fourth Amendment, 201

GPS device, tracking with, 276 Graber, Anthony, 151 Graham, Dethorne, 260–261 grand jury, 365, 444

compared with trial jury, 366 right to, 365, 367

Great Compromise, 15 Great Debate (1830), 78 Great Depression, 86 Gregory, Michelle, 91 Griffin, Joseph, 320 Grigg, Justin, 247

Grisham, John, 406 Groh, Jeff, 284 Grossman, Heidi, 243 Guarnieri, CHarles, 157–158 Guide to Law Online, 40 gun control, 452

balancing individual and states’ rights, 170–171

current debate over, 189–190 as political issue, 190 possible compromise in, 190–191 proposed legislation on, 185–186 Second Amendment and, 166–194

balancing individual and states’ rights, 170–171

Gun Control Act, 182, 183 Gun Control Act of 1968, 178 Gun-Free School Zones Act, 176, 442 gun laws

castle laws, 176–177 concealed carry laws, 175–176 restrictions on types of firearms, 178 state and local, 174–178 variations in, 174–178

gun show, 186 Gun Show Background Check Act, 186 “Gun Turned Up after Hands Went Up

and Pants Fell Down” (Chao Xiong), 288

guns crime and, 186–188 possession of, cases regarding, 188–189 registration of, 175 restricted types of, 178 restrictions on, 174 violence and, 186–188

Guns and Crime (Charlie Dean), 190, 191 Gusella, David, 313

Hamilton, Alexander, 20, 92, 460 Hancock, John, 20 Hand, Learned, 140 handguns, 172–175, 187 Harlan, John Marshall II, 82, 142, 276 harmless error, 224 harmless error doctrine, 340 Harris, Victor, 258–259 Harris, Vivien, 357 Harrison, William, 446 Hart, John, 11 Hart, Josephine Linker, 419 Hastings, Clint, 256 Hastings College of Law, San Francisco,

159 Hastings, Todd, 256 hate crimes, 137–138 Hayne, Robert, 78 hearings

critical stages at, 395–400 disciplinary, 112–113 preliminary, 52, 396

hearsay, 384 Heck, Joe, 148–149 Helmke, Paul, 174, 191 Henry, Patrick, 3, 9 Herring, Bennie, 227 Hoff Varner, Gretchen, 243–244 Hoffa, Jimmy, 325 Holder, Eric H. Jr., 104, 134, 155, 389 holding, 42 Holliday, George, 259 Holmes, Oliver Wendell Jr., 448

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Subject Index 493

Holmes, Wendell, 63 Hong, Mary, 91 Hoofman, Cliff, 419 Hope, Larry, 432 hot pursuit, 258 House of Representatives, 15, 16 Huckabee, Mike, 430 Hudson, Booker, 280 Hughes, Charles Evans, 62 Humanitarian Law Project, 135 Hyde, Henry H., 416

identification cross-racial, 393 rights during, 392–395

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 102

immigration, 100–102 Arizona law of 2010, 103–105 discrimination and, 100–102 illegal, public concern about, 102 policies of, public opinion on, 103 secure communities, 103

Immigration and Customs Enforcement (ICE), 113

racial profiling and, 103 Immigration and Nationality Act, 102 “imminent lawless action” test, 141 immunity

from arrest, 269 qualified, 282

impartial jury, 444 impeached testimony, and Miranda warning,

357–358 impeachment, 18 “In God We Trust”, 129 incorporation, 81–83 incorporation, doctrine of, 81 incrimination, 336 independent judge, 209 indictment, 365 indigency, statement of, 388 indigent, 387 inevitable discovery doctrine, 222 informants, 237–238

Fifth Amendment and Miranda implications regarding, 363

information, legal obtaining of, 333–375 Ingersoll, Jared, 460 Ingraham, James, 420 Innis, Thomas, 348 Inquisition, 410 interception, 324 Internal Revenue Service, 201, 278 International Association of Chiefs of Police

(IACP), 185 Internet, freedom of speech and, 150–151 interrogation, 349

and Miranda warning, 347–349 inventory search, 299–300 investigatory stop, 237–250 invoke, 350 Iraq War, 216

Jackson, Andrew, 128 Jackson, Kuntrell, 419–420 Jackson, Robert Bernard, 396 Jackson, Robert H., 57, 342 Jackson rule, 397 Jay, John, 20, 336 Jefferson, Thomas, 8, 10, 15, 21, 62, 92,

152, 328

Jehovah’s Witnesses, 128 Jenderseck, Christopher, 169 Jim Crow Laws, 92 Joh, Elizabeth E., 310–315, 330 Johns Hopkins University Center for Gun

Policy and Research, 175 Johnson, Andrew, 18 Johnson, Lemon, 246 Johnson, Lyndon, 94, 453 Johnson, Wm. Saml., 460 Joiner, Timothy, 169 Jones, Louis Jr., 429 Jones, Paula, 18 judgment, summary, 97 judicial activism, 132 judicial review, 62

alternatives to, 63 controversy over, 63

judicial system, adversarial, 49, 385 Judiciary Act of 1789, 411, 413 jurisdiction, 37, 37–38

appellate, 44 excluse, 44 general, 44 limited, 44 original, 44 of U.S. Supreme Court, 59–60

jurors, peremptory challenges to, 381 jury

capital punishment and, 428–429 gender discrimination in, 109 impartial, 380–382 race and, 382 racial exclusion from, 109 voir dire and, 381

jury nullification, 382–383 jury trial, 444

in civil cases, 445 right to, 438

just compensation, 368–369 justices, U.S. Supreme Court, 65–66

conservative, 66 liberal, 66

Justinian Code, 35 Juvenile Justice and Delinquency Prevention

Act of 2002, 106 juvenile justice system, 51–52 juveniles, 51–52

corrections and, 52 courts, 52 and death penalty, 426 law enforcement and, 52 and Sixth Amendment rights, 404

Kagan, Elena, 57, 67 Kamerud, Jason, 180 Kaupp, Robert, 254 Kennedy, Anthony M., 57, 66, 68, 98,

130, 137, 144, 147, 149, 157–158, 323, 427

Kennedy, John F., 94, 124, 182, 446 Kennedy, Robert, 182–183 Kerkorian Kirk, 313 King George III, 8–10, 190 King Henry VIII, 152 King, Martin Luther, 182 King, Rodney, 151, 170, 259 King, Rufus, 460 King’s Bench of Great Britain in 1792, 72 Kiro, John, 300 knock-and-announce rule, 209–211 Knowles, Patrick, 299

Konop, Robert, 327 Ku Klux Klan, 79, 93 Kyllo, Danny Lee, 290

Langdon, John, 460 Lara, Billy Jo, 367 law, 5

categorizing, 37–40 civil, 38–40 conflicts in, 229–230 constitutional, 3–28 continuing need for, 36 criminal, 38–40 defined, 35 development of, 35–36 living, 36–37 procedural, 38 researching, 40–43

law enforcement discrimination in, 107–109 Fourth Amendment and, 200–201 racial profiling, 108 racially biased policing, 108

Law Enforcement Officers Killed and Assaulted 2011, 187

Law Enforcement Officers Safety Act (LEOSA), 185

law research, sources for, 40–41 LawCrawler, 471 Lazarus, Emma, 100 Leahy, Patrick, 111 Lee, Richard Henry, 11 legal citations, 41

reading, 467 legal factors, 106 Legal Information Institute, Cornell

University website of, 471

legal research, 471–474 computerized, 471–474 information literacy, 471–472 law on the web, 471 steps in researching a law of interest,

472–474 what’s next, 472

legal system, 31–34 balancing individual and societal

rights, 34 components of, 51–53 conflict theory of, 31–32 consensus theory of, 31–32 doctrines governing which cases can be

heard, 49–51 juvenile justice system, 51–52 overview of, 29–56 purpose of, 31–34 theories about, 31–34

Lewis, R. Fred, 293 LexisNexis, 471 liberal, defined, 66 Liberation Tigers of Tamil Eelam

(LTTE), 134 liberty, 7, 81 Library of Congress Public Services

division, 40 “Lie about a Military Medal? A New Stolen

Valor Act Targets Fraud” (Richard Simon), 148–149

Lincoln, Abraham, 78 lineup, 393

blind, 393 litigious, 228

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494 Subject Index

Livingston, Wil., 460 lobotomy, 421 Lombroso, Cesare, 451 Lopez, German, 364 Los Angeles Police Department (LAPD),

151, 233 Rodney King and, 170, 260

Louima, Abner, 260 loyalist, 9 Lynch, Jennifer, 89

Madison, James, 20, 439–441, 461 magistrate, 208 Magna Carta, 16

and Bill of Rights, 21 and U.S. Constitution, 13

Make My Day laws, 177 Manifesto of the Communist Party (Marx and

Engels), 32 Marbury v. Madison (1803), 2, 468 Marbury, WIlliam, 62 marijuana, legalization of, 435 Marshall, John, 62, 80, 205 Marshall, Thurgood, 66, 412, 416 Martens, Heather, 179 Martin, Trayvon, 177 Martinez, Leo, 159 Maslow, Abraham H., 197 Maslow’s Hierarchy of Needs, 197 Mason, George, 19 Massachusetts Bay Colony, 6, 410 Massachusetts Body of Liberties, 410 Massachusetts Federalists, 20 Mauser, Tom, 186 Mayors against Illegal Guns, 187 McArthur, Charles, 278, 280 McClesky, Warren, 110, 427 McDaniel, Dustin, 420 McFadden, Martin, 216 McHenry, James, 461 media coverage, and criminal

investigations, 157 Medina, Pedro, 424 Memorandums of Agreement (MOAs), 103 mental illness, and capital punishment, 428 mental retardation, and capital punishment,

427–428 Mifflin, Thomas, 460 militias, 168, 173

modern-day, 170 Miller, Jack, 171 Milton, John, 152 Mimms, Harry, 245 Minnesota Bureau of Crime Apprehension

(BCA), 179–180 Minnesota Supreme Court, 137 Minnick, Robert, 354 Minutement, 9 Miranda, Ernesto, 343 Miranda rights, 222 Miranda v. Arizona, 335, 342–359

brief of the case, 342–343 challenge to, by Dickerson v. United States,

356–357 confessions and, 338–341 Miranda violation and, 338–341 right to counsel, 350 right to remain silent, 350 (text of), 468–469

Miranda warning, 215, 245, 343, 390 beachheading and, 354–356 continuing issues around, 358

custody and, 345–347 entrapment and, 363–365 exceptions to, 335 informant and, 363 interrogation and, 347–349 invoking, 349–350 premature, 345 public safety exception to, 359 right against self-incrimination and,

357–358 right to counsel and, 352–354 right to remain silent, 350 waiving, 349–350 when generally not required, 358–359 when it must be given, 345 wording of, 343–345

Misses Opportunities, Shared Responsibilities (Cambridge Review Committee), 257

Montana Freemen, 169 Montejo, Jesse Jay, 397 Moore, David Lee, 229 Moore, Roy, 127 mootness, 50 More Guns, Less Crime (John Lott),

187, 193 Mormonism, in early America, 124 Morris, Robert, 460 Mosley analysis, 350 Mosley, Richard, 350 movant, 97 “Murderous ‘Monster’ Acquires an Arsenal”

(Paul McEnroe and Glen Howatt), 178–181

Muslims, clothing of, 131

Narcotics Anonymous (NA), and religious freedom, 131

National Archives, 2 website of, 10

National Association of Police Organizations (NAPO), 114

National Center for State Courts, 110 National Criminal Justice Association, 471 National Firearms Act of 1934, 171 National Fraternal Order of Police (FOP),

114–115 National Instant Check System

(NICS), 113 National Instant Criminal Background Check

System (NICS), 183 National League of Cities, 116 National Park Service, 50 National Rifle Association (NRA), 170,

189, 191 national security

free speech and, 134 and right to photograph, 151–152

National Shooting Sports Foundation, 191 Nationwide Suspicious Activity Reporting

(SAR) Initiative (NSI), 87–88 technology overview, 88

Native Americans, 3, 6–8 religious freedom of, 129

Nazi Party, and freedom of speech, 142 needs, Maslow’s hierarchy of, 197 Negron, Joe, 293 “New Hearing for Arkansas Inmate

Sentenced as Teen” (Jeannie Nuss), 419–420

New Jersey Plan, 15 New Jersey Turnpike Speeding Survey, 107 New Mexico Penitentiary Riot, 111

New York Police Department (NYPD), 151 stop and frisk, 241, 243

Newtown, CT shooting, 178, 190 nightcap(ped) warrant, 211 Nixon, Richard M., 66, 94, 183 no-knock warrant, 211 nonmovant, 97 notice, 444 nude dancing, 138 “NYPD Stop-and-Frisk Trial Ends as Judge

Peppers City with Questions” (Matt Sledge), 243–244

Obama administration, 68 Obama, Barack, 89, 104, 155, 169, 372 Oberender, Christian Philip, 178–181 obscenity, and freedom of speech,

146, 151 Occupational Safety and Health

Administration (OSHA), 317 O’Connor, Sandra Day, 66, 96, 98, 160 offense specific, 398 Office of Juvenile Justice and Delinquency

Prevention (OJJDP), 106 Official Secrets Act (Britain), 152 Olson, Jim, 178, 181 Omnibus Crime Control and Safe Streets Act

(1967), 182, 356 open field, search of, 307–310 operative clause, 170 opinion, 71

concurring, 71–72 dissenting, 42, 71–72

Opperman, Donald, 302 oral communication, 326 Orange County Crime Lab, 91 Orange County Register, 91 ordinances, 38 original jurisdiction, 44 Ortega, Magno, 322

Packer, Herbert, 32, 34 Pagano, Ed, 155 Parks, Rosa, 1 parole, 52 Partiya Karkeran Kurdistan (PKK), 134 Paterson, Wm., 460 patriot, 9 peaceful assembly, right to,

157–158 Pearl, Daniel, 371 penal codes, 38 The Pentagon Papers, 153 penumbra, 85, 276 peremptory challenges, 381 petition for certiorari, 45 Pew Research Center, 104 photograph, right to, 151–152 physical restraints, 262 Picard, Claude, 238 Pinckney, Charles, 461 plain feel, 289 plain touch, 289 plain view, 290 plain view evidence, 290–292 pledge of allegiance, 105, 129 Plessy, Homer, 92 pluralism, defined, 5 police

continuum of contacts with individuals, 212–214

flight from, 239–240

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Subject Index 495

on less-lethal force, 262–264 Summary of Allowed Police Actions

regarding Searches of Stopped Vehicles and their Occupants, 299

Police Chiefs and Sheriffs Speak Out on Local Immigration Enforcement (PERF), 101

Police Executive Research Forum (PERF), 101, 187, 190, 262

police officers civil liability and, 228–229 cluster killings of, 188 criminal liability and, 228–229 internal sanctions against, 228–229 misconduct of, and exclusionary rule,

228–229 PoliceOne, 104, 262 poll tax, 447 Polston, Ricky, 293 Pontiac’s Rebellion, 8 Powell, Lewis, 51 powers

balance of, 18 federal versus state, 18

Powers, Pamela, 222 prayer, in schools, 126 preemption, 105 prefactory clause, 170 preferred freedoms approach, 141–142 prejudice, versus discrimination, 92 preliminary hearing, 52, 396 preponderance of the evidence, 39 President of the United States

justices, U.S. Supreme Court, 1 nomination of justices by, 65 unable to serve, 445–446

press freedom of, 152–157

balancing with right to fair trial, 152–157

prior restraint on, 152 Presser, Herman, 173 pretext stop, 247 preventive detention, 412 The Preview of United States Supreme Court

Cases, 72 prior restraint, 152, 153 Prison Litigation Reform Act (PLRA), 431 prisoners

and Eighth Amendment, 431–432 rights of, 111, 160–162, 431–432

privacy, 445 balancing with security, 328 due process and, 87–88 electronic surveillance and, 323–326, 328 marital, 86 reasonable expectation of, 276

privacy law, 313 pro se, 402 probable cause, 24, 204–208, 236

to arrest, 206 as contextual, 205 in deadly force, 266 informational, 207–208 observational, 206–207 to search, 206 sources of, 206–208

probation, as sentencing option, 52 procedural due process, 81, 83–84 procedural law, 38, 200 Proclamation of 1763, 8 prohibited persons, and gun control, 174,

179–180, 182

Prohibition, 447, 452 Project on Government Secrecy, 89 promulgate, 35 property

abandoned, search of, 307–310 public and quasi-public, 158

proportionality analysis, 417 Proposition 8, 99 Protect Minnesota, 179 Protecting the Homeland, 103 protective sweep, 296 Prysock, Randall, 343 public employees, expression by, 147,

149–150 public places, search of, 307–310 public property, types of, 158 Public Safety Employer-Employee

Cooperation Act of 2009, 114–116 public safety exception, to Miranda

warning, 359 public trial, 444 punishment

brief history of, 410–411 capital. see capital punishment corporal, 420 cruel and unusual, 416–418, 420–422, 445 options for, 420–421 physical, 421

punitive damages, 414 pursuit, 257–259

fresh, 257 hot, 258

qualified immunity, 282 Quarles, Benjamin, 359 Quartering Act, 8 quasi-public property, types of, 158 Quon, Jeff, 323

racial discrimination capital punishment and, 427–428 roots of, 92–93 in sentencing, 110

racial issues equality in twenty-first century, 98 and voting rights, 446–447

racial profiling, 103, 107–109, 108 in law enforcement, 107

Ramirez, Joseph, 284 ratify, defined, 20 rational basis, 160 rational basis test, 160 Read, Geo., 461 Reagan, Ronald, 66, 113, 183 reasonable expectation of privacy, 275,

276, 277 reasonable expectation of privacy

doctrine, 276 reasonable suspicion, establishing,

237–238 reasonable suspicion (RS), 216, 236, 244

establishing, 237–238 reasonableness, 204, 204–205

bright-line approach, 204 case-by-case method, 204 clause of fourth amendment, 204–205 in deadly force, 267 and Fourth Amendment, 203

reasonableness clause, of Fourth Amendment, 203

recesses, 70 Redding, Savana, 318

Rehnquist, William H., 66, 68, 127, 138, 208, 239, 250, 356, 399, 442

released on own recognizance (ROR), 412 religion, 452

discrimination on basis of, 98 free exercise of, 128–131 freedom of

conduct not protected by, 130, 131 and equal access law, 126 interpretation of, 131–132

religious discrimination, 98 Religious Freedom Restoration Act (RFRA)

1993, 129, 161–162 remand, 42 remoteness, 295 representatives, 445 reserve powers, 440 residency discrimination, 100 Revere, Paul, 8 reverse, defined, 42 reverse discrimination, 96–97 right

to bear arms, 83, 444 to counsel, 352–354, 385–389 to grand jury, 365, 367 to peaceful assembly, 157–158 to privacy, 24, 85, 205 to remain silent, 350–352 to security, 24 against self-incrimination, 336

and Miranda warning, 357–358 to vote, 37

right-to-carry (RTC) gun laws, 175 rights, 112

balancing individual and societal rights, 123

Eighth Amendment and, 409 enumerated, 86–87 extension of, beyond constitutional

rights, 443 guaranteed by Fifth Amendment, 365 during identification, 392–395 penumbra of, 276 posttrial, key cases regarding, 400 pretrial, key cases regarding, 400 unenumerated, 85–86, 87

ripeness doctrine, 50 Risher, Michael, 91 roadblocks, 248–249 Roberson, Ronald, 354 Roberts, John G., 57, 67–68, 99, 135, 227, 306,

425, 446 Robinson, WIllie, 294 Rodhin, Antonio, 337 Romero, Anthony D., 360 Romney, Mitt, 124 Ross, Kevin G., 288 Ruby Ridge, Idaho, militia, 169 rules of engagement, 259 The Runaway Jury (Grisham), 406 Rutledge, J., 461 Ryan, George, 430

same-sex marriage, 447–448 Samson, Donald Curtis, 321 San Diego Police Department (SDPD), 150 Santeria, 130 SAR. see suspicious activity reporting (SAR) Saturday-night special, 183 Saunders, Lynda Susan, 91 Scalia, Antonin, 57, 66, 68, 98, 138, 145, 174,

230, 267, 276, 309, 319, 357

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496 Subject Index

Scheindlin, Shira, 243, 244 schools

firearms in, 176 parochial, 127 prayer in, 126, 127

Schumer, Charles E., 155–156 Scott, Rick, 293 Scott, Timothy, 258–259 search, 198

of abandoned property, 307–310 administrative, 317 of arrested person, use of force in,

296–297 of arrestee’s vehicle, 297–298 border, 314–315 conducting, 282–283 with consent, 284–287 constitutional, 273–332 contemporaneousness and, 292 executing, 211 incident to lawful arrest, 292, 294–295 inventory, 299–300

of impounded vehicles, 302–303 of open field, 307–310 of parolee, 319–322 of person other than arrestee, 297 plain feel and, 289–290 plain touch and, 289–290 plain view evidence in, 290–292 of prisoner, 299, 319–322 of probationer, 322–323 of public employee work areas, 322–323 of public places, 307–310 public school, 318 remoteness in, 295 scope of, 277–278 special conditions for, 211 special needs, 317 with suspicion, 296 tenets of, 275–277 of vehicle, 297 of vehicle occupants, 297 with warrant, 278, 280–283 wingspan and, 292 without suspicion, 296 without warrant, 283–287, 289–292,

294–295, 300–307 search and seizure, 195–232

constitutional analysis of, 316 illegal, 173 unreasonable, 177, 204, 256, 444

search warrant automobile exception to, 300–303 executing, 211, 280–282

Second Continental Congress, 10–11 Secret Service, 201 security, 197

balancing with privacy, 328 seizure, 198–199, 300. see also search and

seizure and community caretaking doctrine, 255 conducting, 233–272 constitutional, 234–235 Fourth Amendment and, 213 intensity and scope of, 235–236 invalid, 199 where arrests may be made, 253–254

selective incorporation, 444 self-incrimination, 444 self-incrimination, right against, 336 Senate, 15, 16, 17, 445 sentence, proportionality analysis of, 417

sentencing continuum of, 421 key cases regarding, 400 options of, 422 racial discrimination in, 110

sentencing hearing, 52 Sentencing Reform Act (SRA), 110 September 11 attacks. see terror attacks of

September 11, 2001 Seven Years’ War, 7 sexual orientation, discrimination and, 99 Shatzer, Michael Blaine, 352–353 shepardizing, 43, 470 Shepard’s Citations, 43 Sherman, Roger, 460 showup, 393 Siebert, Patrice, 355 Silverthorne Lumber Company, 221 Simmons, Christopher, 427 Simmons, R.C., 6, 28 Simpson, O.J., 39 sittings, 70 slavery, 6, 15, 78, 92, 452

abolition of, 37 Thirteenth Amendment and, 77–79, 442 U.S. Constitution and, 15

Smallwood, Cedric, 293–294 Smith, Joseph, 124 Smith, Lamar, 111 Smith, William Kennedy, 154 Snyder, Allen, 382 Snyder, Matthew, 143 social contract, 31 Socialist Labor Party, 173 Sokolow, Andrew, 315 Sotomayor, Sonia, 57, 68, 98, 135, 420 Sourcebook of Criminal Justice Statistics Online

(2013), 101–102 Souter, David, 66, 98, 210 Spaight, Richard Dobbs, 461 speech

balancing test for, 141 freedom of, 132–152

and flag burning, 137 and Internet, 150–151 restrictions on, 139–147

imminent lawless action test for, 141 symbolic, 135–139

speedy trial, 444 Stamp Act, 8 “Stand Your Ground” laws, 177 standing, 49, 99–100, 198 Star Chamber, 410 stare decisis, 36 state action, 198 state courts, 45, 47

intermediate appellate, 45 levels in, 44 lower, 45 State Supreme Courts, 45

state judicial system, 46 state, separation from church, 126 statement, deliberate elicitation of, 391 states, reserve powers of, 440 status offenses, 51 statutory law, 38 Stepanovich, Amie, 90 Stevens, John Paul, 66, 139, 427 Stevens, Robert, 134 Stewart, Potter, 390, 439 Stockton, Richard, 11 Stolen Valor Act of 2005, 147, 148–149

Stone, Harlan F., 141 stop, 195

compared with arrest, 235–236 defined, 214 at international border, 249–250 investigatory, 237 length of, 240–241 pedestrian, controversy over,

241–242 protective actions during, 241 traffic, 242, 244–248 vehicle search following, 245

stop and frisk, 215, 239, 241 basic definitions, 214–215 law of, 214–215 racism and, 241–242, 244

Stop Illegal Trafficking in Firearms Act of 2013, 186

Stored Communications Act, 327 straw purchase, 191 Street, Sidney, 137 strict construction, 72 strict scrutiny, 134–135, 160–161 string cites, 41 subpoena, 384 substantive due process, 81, 84–87 substantive law, 38 Sudden Impact, 177 suits at common law, 437 summary judgment, 97 sunset clause, 185 supremacy clause, 19, 105 surveillance, electronic. see electronic

surveillance suspect

under arrest, 346 being informed of accusation, 383 in custody for another offence, 347 at the police station, 346 pretrial release of, 412

suspicious activity reporting (SAR), 87–88

sharing, 88, 470 sweep, protective, 296 Sykes, Diane S., 175 symbolic speech, 135–139

TASER®, 262, 264–266 TASER® X26, 264 taxes, 447 technology, Fourth Amendment and, 224 telephonic warrants, 209 Ten Commandments, 127

in schools, 126 terror attacks of September 11, 2001, 100, 124,

151, 328 terrorism

counterterrorism command centers in Washington, D.C., area, 115

profiling and, 316 and USA PATRIOT Act, 369–370

Terry, John, 216 Terry stop, 188, 215–217, 237, 241, 248, 336 Third Circuit, 134 Thomas, Clarence, 57, 66, 68, 96, 98, 128,

321–322, 357, 425–426, 429 affirmative action and, 96–97

Thompkins, Van Chester, 351 Thompson, William Lee, 426 Three Mile Island nuclear accident, 152 “three strikes law” (California), 417 Time, 72

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Time Magazine, 259 Title I of the Elementary and Secondary

Education Act of 1965, 127 Title III (the Wiretap Act) of the Omnibus

Crime Control and Safe Streets Act of 1968, 324–325, 326

Title V of the Rehabilitation Act of 1973, 99 Title VII of the Civil Rights Act, 97

prohibits intentional acts of employee discrimination, 98

Title IX of the Education Amendments of 1972, 94

tort, 39 totality of circumstances, 205, 280 traffic stops, 108. see also Terry stop

disparity of, 107 justification for, 245–246 Miranda warning and, 245

Treaty of Paris, 7 trial

bifurcated, 424 compulsory process and, 384–385 critical stages at, 389–400 fair, right to, 376–407 public, 378–379 rights of, key cases regarding, 400 speedy, 378–379 venue of, 380

trial jury, compared with grand jury, 366 “The Trial of John Peter Zenger”, 152 Tsarnaev, Dzhokhar A., 360 twenty-first century, racial and gender

equality in, 98 Tyler, John, 446 Tyson, Mike, 154

unenumerated rights, 85–86 Uniform Act of Fresh Pursuit, 257 Uniform Code of Military Justice, 54 United States, development of, 7–10 unreasonable interference, 205 U.S. Congress, 40 U.S. Constitution, 1, 5, 12, 40, 84, 105,

121–165, 435, 452 amendment process for, 18–19 amendments to, 437–443

attempts at, 447–448 analysis of search and seizure, 316 Article 1 of, 16–17, 454–457 Article 2 of, 16–18, 457–459 Article 3 of, 18, 43, 59–60, 459 Article 4 of, 18, 459–460 Article 5 of, 18–19, 460 Article 6 of, 19, 460 balancing meaning of, 138 beginnings of, 5–7 Bill of Rights, 5, 16, 19–21, 77–78, 80, 83,

111, 123, 171, 441–442 and balance of powers, 21–25 Magna Carta and, 21 overview of, 22–25 today, 26

certiorari, 96 commerce clause of, 114, 170, 440 and Constitutional Convention of 1787,

13–14 development of, 14–16 drafting, 15–16 Eighteenth Amendment to, 447, 464 Eighth Amendment to, 25, 83, 408–434,

445, 462 corrections and, 430–432

excessive fines clause of, 415–416 prisoners’ rights and, 431–432 rights protected by, 409

elastic clause of, 16, 440 Eleventh Amendment to, 443, 462–463 Fifteenth Amendment to, 37

racial discrimination and, 93 Fifth Amendment to, 24, 82–83, 85, 100,

133–134, 334, 444, 462 confessions and, 338–341 consequences of a Miranda violation, 363 corrections and, 368–369 due process and, 334, 337 due process clause, 83–84 grand jury clause, 366 just compensation, 368–369 Miranda implications of using informant

and, 363 Miranda v. Arizona and, 342–359 obtaining information legally, 333–375 protection from double jeopardy,

367–368 right against self-incrimination

and, 336 right to counsel and, 352–354 rights guaranteed by, 365 rights of prisoners and, 368–369 USA PATRIOT Act, 369–370

First Amendment to, 22, 71, 85, 122, 133–134, 142, 444, 461

aid to terrorist groups and, 135 balancing individual and societal

rights, 123 establishment clause in, 50, 131–132 First Amendment to, 147 flag burning and, 137 free exercise clause, 130 free exercise of, 128–131 freedom of association and, 158–160 freedom of press and, 152–157 freedom of religion and, 124–132 freedom of speech and, 132–152 freedom of the press and, 152–157 pledge of allegiance and, 129 preferred freedoms approach, 141 right of freedom of association, 159 right to peaceful assembly and,

157–158 right to photograph and, 151–152 rights of prisoners and, 160–162

Fourteenth Amendment to, 37, 76–80, 86, 92, 100, 113, 133, 142, 173–174, 243, 256, 380, 443–445, 463

double jeopardy clause, 367 due process clause, 80, 82–84, 173, 383 equal protection clause, 80, 94, 109 equal protection under the law and,

79–113 inquiry of, overview, 198–199 racial profiling and, 107–109 right to privacy and, 85 selective incorporation and, 440

Fourth Amendment to, 23, 51, 85, 177, 201, 239, 243, 276, 444, 462

clauses of, 203 continuum of contacts and, 212 conventional approach to clauses

of, 203 crime investigation and, 154 due process and, 334 electronic surveillance and, 323–326 exclusionary rule and, 217–222

importance of, in law enforcement, 200–201

interpretations of, 203–204 persons regulated by, 201–203 on probable cause, 205–208 protective sweep, 296 reasonableness approach to clauses

of, 203 reasonableness clause of, 203–205 search and arrest warrants, 208–209 search and seizure and, 195–271 stop and frisk, 214–215 technology and, 224 tenets of search analysis, 275–277 unreasonable searches and, 157 violations according to, consequences of,

217–228 warrant clause of, 203

framers of, 441 incorporation doctrine of, 81 influence of Magna Carta on, 13 as living law, 25 necessary and proper clause, 440–441 Nineteenth Amendment to, 37, 446, 464 Ninth Amendment to, 25, 85, 445, 462 other provisions, 18 overview of, 16–21 ratification of, 20–21 search and, 273–332 Second Amendment to, 22, 24–25, 83,

168–169, 173–174, 444, 461 balancing individual and states’ rights,

170 early case law regarding, 171–172 federal regulation and, 182–183 gun control controversy and,

166–194 historical background of, 168 incorporation of, 173–174 interpretation of, 168–169, 172–173 modern-day militias and, 168–170 operative clause of, 170, 173 prefatory clause of, 170, 173

seizures according to, 233–271 Seventeenth Amendment to, 445, 464 Seventh Amendment to, 437–438,

445, 462 signers of, 460–461 signing of, 19–20 Sixteenth Amendment to, 447, 463–464 Sixth Amendment to, 24, 82, 376–407,

444, 462 confrontation clause, 383 public trial and, 154 and right to counsel, 352–354,

385–389 slavery and, 15 supremacy clause, 441 Supreme Court and, 59 as supreme law, 19 Tenth Amendment to, 15, 25, 170,

440–443, 462 text of, 454–466 Third Amendment to, 8, 23, 83, 85,

437, 461 Thirteenth Amendment to, 37, 77–79, 80,

92, 443–444, 463 abolition of slavery and, 78–79 ratification of, 77–79 slavery and, 79, 92, 442

timelessness of, 25–26 today, 26

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498 Subject Index

U.S. Constitution (Continued) Twelfth Amendment to, 462–463 Twentieth Amendment to, 445, 464–465 Twenty-Fifth Amendment to, 445–446, 465–

466 Twenty-First Amendment to, 37, 447, 465 Twenty-Fourth Amendment to, 447, 465 Twenty-Second Amendment to, 445, 465 Twenty-Seventh Amendment to, 446, 466 Twenty-Sixth Amendment to, 447, 466 Twenty-Third Amendment to, 445, 465

U.S. Court of Appeals, 48, 114, 130 U.S. Customs and Border Protection, 89 U.S. Department of Justice, 155, 446

Bureau of Justice Statistics, 186, 471 U.S. District Courts, 47–48 U.S. Federal Judiciairy, 471 U.S. Justice Department, 104 U.S. Marshalls Service, asset forfeiture

program and, 413 U.S. National Bureau of Interpol, 54 U.S. National Central Bureau, 54 U.S. News and World Report, 72 U.S. Postal Regulations, 326 U.S. Supreme Court, 1, 18, 47–48, 50, 57–75,

79–80, 83–86, 91–95, 99, 101, 109, 112, 123, 134–135, 147, 183, 213, 439

affirmative action and, 98 authority for, 59 Burger Court, 67 certiorari, 64–65 as check on federal power, 113 conservative, 66, 68 current, 67–68 deciding which cases to hear, 64–65 decisions of, publishing of, 72–73 flag burning, 137 free exercise clause (freedom of religion)

and, 129 freedom of speech and, 143 interpretation of the establishment

clause, 127 interpretations of, 72 judicial review by, 62 jurisdiction of, 59–60 justices of, 65–66

impeachment of, 65–66 nomination of, 65–66

liberal, 66, 68 opinions of, 71–72 path of case to, 61 politics and, 68–69 power of, 73 probable cause and, 105

procedures of, 70–71 public opinion of, 70 recesses of, 70 Rehnquist Court, 67 sittings of, 70 traditions of, 70–71 Warren Court, 67 website of, 40, 471

USA PATRIOT Act, 134, 335, 369–370, 436 changing society and, 372 information sharing and cooperation

among government agencies, 370–371 new technologies and threats, 371 penalties and, 371 renewal of, 371–372 use of already available tools, 370

vacate, 42 vehicle, impounded, search of, 302–303 venire, 381 Ventris, Donnie, 399–400 venue, 44, 380, 444 victims’ rights amendments, 448 videogames, violent, 145 Vietnam War, 132 Vinson, Fred, 412 Violent Crime Control and Law Enforcement

Act of 1994, 178, 184–185 Virginia Military Institute (VMI), 94 Virginia Tech shooting, 186 voir dire, 381 voluntariness

of confession, 338–339 standard for, 341

voluntariness test, 286 voluntary contact, 261 voting age, 447 voting rights, 446–447

extended to Black males, 446 extended to women, 446, 452 poll taxes, 447 voting age, 447

Voting Rights Act, 98, 446

Wade-Gilbert rule, 394, 395 waiver, 349

of right to counsel, 402, 403 waiver and consent to search form, 284 waiver test, 287 Wall Street Journal, 371 Wardlow, William “Sam”, 239 warrant, 198

administrative, 317 automobile exception to, 300–303

executing, 211, 280–282 and knock-and-announce rule, 209–211 nightcap(ped), 211 sample of, 279 search, executing, 280–282 search with, 278, 280–283 search without, 283–284

warrant clause, of Fourth Amendment, 203 warrantless search

emergency aid doctrine and, 306–307 exigent circumstances and, 303–307 frisks and, 287–288 hot pursuit, 304–305 immanent destruction of evidence,

303–304 Warren Court, 137 Warren, Earl, 66, 342, 356, 411, 416 Washington, D.C., counterterrorism

command centers in, 115 Washington, George, 7–8, 12–13, 15, 92 Washington Legal Foundation (WLF), 135 Washington Post, 114, 153 weapons, 178

less-lethal, 262–264 Webster, Daniel, 78 Weeks, Fremont, 220 Wells, Martin, 303 Welsh, Edward, 304–305 West, Gretchen, 90 Westboro Baptist Church, 143 Westlaw, 471 White, Byron, 225, 266, 380 Whiteside, Lemuel, 419 Whitney, Eli, 15 Wiggins, Frank Irving, 288 Wikileaks, 156 Wikipedia, 41 Williams, Robert, 222–223 Williamson, Hu, 461 Wilson, James, 460 wingspan, 292 Wiretap Act, 327 Wisconsin Department of Health and Social

Services, 320 witness, right to confront, 383–384 women’s right to vote, 37, 452 World War I, censorship and, 153

yard signs, 138–139 YouTube, 151

Zenger, John Peter, 152–153 Zimmerman, George, 177 zones of privacy, 85

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Brief Contents
Contents
About the Authors
Preface
Acknowledgments
Prologue
Ch 1: A Historical Overview��

Introduction��
Where It All Began
Development of the United States of America��
The Declaration of Independence��
The Constitution Takes Shape��
The Constitution of the United States: An Overview��
A Balance is Struck with the Bill of Rights
A Nearly Timeless Document��
Where the Declaration of Independence, U.S. Constitution, and Bill of Rights are Today
Summary��

Ch 2: An Overview of the U.S. Legal System��

Introduction��
Theories about and the Purpose of the Legal System��
The Law Defined��
Development of the Law��
The Continuing Need for Law��
U.S. Law Lives��
Categorizing Law��
Researching the Law��
The Court System��
Officers of the Court��
An Adversarial Judicial System��
Doctrines Governing What Cases will Be Heard
The Components of the U.S. Legal System: The Big Picture��
U.S. Criminal Justice beyond Our Borders��
Summary��

Ch 3: The U.S. Supreme Court: The Final Word��

Introduction��
Authority for the Supreme Court��
Jurisdiction of the Supreme Court��
Judicial Review��
Certiorari: Deciding Which Cases to Hear��
The Supreme Court Justices��
The Current Supreme Court��
Politics and the Supreme Court��
Public Attitudes toward the Supreme Court��
Traditions and Procedures��
Where Supreme Court Decisions May Be Found��
The Power of the Supreme Court��
Summary��

Ch 4: Equal Protection under the Law: Balancing Individual, State, and Federal Rights��

Introduction��
The Thirteenth Amendment��
The Fourteenth Amendment��
Due Process��
Discrimination versus Prejudice��
The Roots of Racial Discrimination��
The Struggle for Equality��
Equal Protection in the Criminal Justice System��
A Check on Federal Power��
Summary��

Ch 5: The First Amendment: Basic Freedoms��

Introduction��
Freedom of Religion��
Freedom of Speech��
Freedom of the Press��
The Right to Peaceful Assembly��
Freedom of Association��
First Amendment Rights of Prisoners��
Summary��

Ch 6: The Second Amendment: The Gun Control Controversy��

Introduction��
Historical Background��
The Debate: Interpreting the Second Amendment��
Early Case Law Regarding the Second Amendment: A Slow Start��
A Shift in Interpretation: The Heller Decision��
Incorporation of the Second Amendment��
Variation in State and Local Gun Laws��
Federal Regulation and the Second Amendment��
Guns, Crime, and Violence��
Cases Governing Police Response to Gun Possession Reports��
The Current Gun Control Debate��
Gun Control as a Political Issue��
Finding Common Ground-Is a Compromise Possible?
Summary��

Ch 7: The Fourth Amendment: An Overview of Constitutional Searches and Seizures��

Introduction��
The Importance of the Fourth Amendment to Law Enforcement��
Who is Regulated by the Fourth Amendment?��
The Clauses of the Fourth Amendment��
Search and Arrest Warrants��
The Continuum of Contacts��
The Law of Stop and Frisk��
Consequences of Fourth Amendment Violations��
A Final Consideration: When State Law Conflicts with Constitutional Law��
Summary��

Ch 8: Conducting Constitutional Seizures��

Introduction��
Intensity and Scope of a Seizure: Stop and Arrest Compared��
Investigatory Stops��
Arrests: An Overview��
When Arrests May Be Lawfully Made��
Where Arrests May Be Made��
An Arrest or Not? De Facto Arrests��
The Knock-and-Announce Rule Revisited��
Community Caretaking Doctrine��
Escalating Events��
Pursuit��
Use of Force��
Citizen's Arrest
Immunity from Arrest��
Summary��

Ch 9: Conducting Constitutional Searches��

Introduction��
Tenets of Fourth Amendment Search Analysis��
The Scope of Searches��
Searches with a Warrant��
Searches without a Warrant��
Border Searches��
Special Needs Searches��
Electronic Surveillance, Privacy Interests, and the Fourth Amendment
Summary��

Ch 10: The Fifth Amendment: Obtaining Information Legally��

Introduction��
Government's Need to Know
The Right against Self-Incrimination��
Due Process of Law��
The Fifth Amendment and Confessions��
Miranda v. Arizona��
The Public Safety Exception��
Consequences of a Miranda Violation��
Fifth Amendment Miranda Implications of Using Informants��
Entrapment��
Other Rights Guaranteed by the Fifth Amendment��
Fifth Amendment and Corrections��
USA PATRIOT Act��
Summary��

Ch 11: The Sixth Amendment: Right to Counsel and a Fair Trial��

Introduction��
Speedy and Public Trial��
Where the Trial is Held
An Impartial Jury��
Jury Nullification��
Being Informed of the Accusation��
The Right to Confront Witnesses��
Compulsory Process��
Right to Counsel��
Right to Counsel at Critical Stages of Criminal Proceedings��
The Presumption of Effective Counsel��
Waiver of Sixth Amendment Right to Legal Counsel��
The Right to Act as One's Own Counsel
Juveniles and the Sixth Amendment��
The Sixth Amendment and Corrections��
Summary��

Ch 12: The Eighth Amendment: Bail, Fines, and Punishment��

Introduction��
A Brief History of Punishment��
Bail��
Fines��
Cruel and Unusual Punishment��
Capital Punishment��
The Eighth Amendment and Corrections��
Summary��

Ch 13: The Remaining Amendments and a Return to the Constitution��

Introduction��
The Remaining Amendments to the Bill of Rights��
Amendments beyond the Bill of Rights��
Attempts at Other Amendments��
Summary��

Epilogue��
Appendix A: The U.S. Constitution and Amendments
Appendix B: Reading Legal Citations
Appendix C: Briefs of Marbury and Miranda
Appendix D: Shepardizing a Case
Appendix E: Legal Research
Glossary
Case Index
Authors Index
Subject Index