Const law midterm

dogs

two greyhounds, retired racers, bullseye and melo

melo named after..

carmelo anthony on the knicks

9 justices

• Roberts JR

• Thomas

• Alito JR

• Sotomayor

• Kagan

• Gorsuch

• Kavanaugh

• Barrett

• Jackson

federalism

• system of government that splits power between a central (national) government and smaller regional units like states, provinces, or territories

• effects procedural law by operating under two separate legal and judicial systems (state or federal)

sources of procedural law

constitutions and high courts

• US → Us constitution and SCOTUS

• state → state constitution and state highcourt

states can give…

more protections than the federal government but not less

SCOTUS process

1. someone files writ of certiorari (asks SCOTUS to review)

   1. choose not to hear or agree to review (grant cert)

2. agree to review

   1. issue per curiam decision (no specific author) without full hearing/review

   2. “full” review → briefs, arguments, authored opinions

different parts of a SCOTUS opinion

• case citation and basic info

  • case name, vol, court abbreviation, first page (year decided)

• syllabus

• majority opinion (opinion of the court)

• concurring opinion (agreeing opinions but different reasons)

• dissenting opinion (opposing opinions)

SCOTUS full review

• filing of briefs

• oral arguments

• justices’ conference

filing of briefs

• both parties file their full brief

• both parties can file shorter briefs responding to the other

• Solicitor General may file brief (if case does not directly involve the US gov)

• may allow amicus curiae briefs from other parties

oral arguments

• term begins first monday in Oct.

• heard through october through april

• each side. typically has 30 mins

• petitioner first, then respondent

• petitioner may reserve time for a rebuttal

justice’s conference

• before conference, often speak to their law clerks

• first discuss any new petitions for writs of certiorari

• discuss cases that they’ve heard

  • chief justice speaks first then in order of seniority

  • vote

  • decide author of opinion

incorporation of the bill of rights

• part of constitution that lists first 10 amendments

• 14th amendment, scotus began applying BOR to state/local entities (process called incorporation)

crime control

• controlling crime

• efficiency

• as quickly as possible with finality and fewest resources

• assembly line

• built on confidence

due process

• fairness and protection of individual rights and liberties

• obstacle course

• skeptical

substantive law

• the “what” of law

• defines crimes and punishment

• generally, comes from elected lawmakers

procedural law

• the “how” of law

• governs the process through which the government investigates, adjudicates, and punishes alleged criminal offenses

4th amendment

protection from unreasonable search and seizure

general warrants

authorized searches for unspecified persons/places

• made illegal in 1765

writes of assistance

gave cystoms officials unlimited power to search for smuggled goods

what is a warrant?

authorization from judicial authority to conduct a search or make a seizure

warrant process/requirements

1. officer files affidavit

   1. signed, under oath

2. explains specificity of warrant request

   1. describes person/place/items to be searched/seized

3. provides evidence of probable cause

what is probable cause and how do we assess?

• more than suspicion, less than other legal standards of proof

• “the totality of the circumstances”

• officers must establish PC using “objective circumstances”

• a matter of “probabilities” rather than “certainties”

• courts should approach as a “commonsense, practical question”

exclusionary rule (Mapp)

o   All evidence obtained by searches and seizure in violation of constitution is, by the same authority, inadmissible (mapp)

o   Prohibits use of illegally obtained evidence (state and federal systems)

o   Judicially created

o   “Fruit of the poisonous tree”

situations where 4th does not apply

• private searches (feffers two part test)

  • did the government know and acquiesce in activity?

  • was the private party motivated on the basis of assisting the government?

• border searches (generally mail and other)

  • crossing national border

  • includes customs inspections and nearby stations

  • but… not limited

consent to search

• implied consent

• third-party consent

third party consent

• basic scope (matlock)

  • valid when there is joint access or control, “Common authority”

• what we evaluate (rodriguez)

  • law enforcement subjective belief

  • warrantless search doesn’t violate 4th if police reasonably believe that person had authority to consent

• if both parties are present (randolph; fernandez)

  • both home, both consent

  • one part consents but opposing party leaves (even via arrest) then only consent from party who is home

what does the 4th amendment protect

Reasonable expectations of privacy (Katz two part test)

• did the person exhibit an actual subjective expectation of privacy?

• is that expectation one that society recognizes as reasonable?

assessing/evaluating REP, home, curtilage, and open fields (oliver)

1.   Home: physical structure of the dwelling (full protection under 4^th)

2. Curtilage: area immediately surrounding the home, essentially considered part of the dwelling (close to full protection)

3. Open fields: land distant from the home, no REP (generally, no protection)

·      Clear rule avoids putting LE in a position to decide case-by-case if a field has REP

·      How to distinguish curtilage and open field?

o   Distance

o   Enclosure

o   Function

o   protection

Assessing/evaluating REP, aerial surveillance (Dow;Ciraolo)

§  Dow

·      Aerial photographs

·      SCOTUS ruled not a violation of 4^th

·      “public airspace, standard photographic equipment”

§  Ciraolo

·      Private plane, low altitude flight over property, photographed area, then got a warrant, searched, and seized

·      SCOTUS ruled this was okay

·      “public navigable airspace”

·      Not physically intrusive

·      Garden was protected from observation is unreasonable and is not an expectation society is prepared to honor

Assess/evaluating REP, electronic surveillance (Smith; kyllo)

§  Smith

·      Robbery, threatening phone calls and ID’s certain car, police ran plates, pen register

·      SCOTUS ruled pen register without warrant was constitutional

·      No REP

·      Phone user voluntarily provides this info to company

§  Kyllo

·      Thermal device on house

·      SCOTUS ruled unconstitutional search under 4^th

·      Device “not in general public use”

·      Enhances the senses

·      Info “would previously have been unknowable without physical intrusion”

Abandoned property (What’s the key question we ask?)

Did the person take an active step to abandon it?

Balancing government interests, level of intrusion, and privacy, Forensic/bodily searches (Rochin’s limit; Lee’s analysis)

1. Rochin

   1. o   Swallowed pills, officers jumped him and used force

      o   Police took Rochin to hospital and made doctors induce vomiting

      o   SCOTUS ruled methods in this case was modern-day extension of torture

      o   “this is conduct that shocks the conscience”

        - Cannot shock the conscience

      o   Bodily intrusion = heavy scrutiny

2. Lee

   1. o   Possible robbery, two men shot at (and hit) each other

      o   Suspect taken to hospital, identified at a ‘show up’

      o   State motioned to order Lee to have surgery to recover the bullet

      o   SCOTUS state can not force suspect to undergo surgery under the 4^th

      o   Balancing act: nature of intrusion vs state interests, intrusion cannot outweight interests

School searches (reasonableness; look at TLO and Safford v. Redding)

1. TLO

   1. o   Students have limited 4^th amendment protection

      o   Search of bag requires reasonableness (not PC)

      o   Balance: Students expectation of privacy vs schools “equally legitimate” interest in learning environment

2. Redding

   1. o   Strip searches of students = sometimes okay but “the measures adopted must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction”

stop-and-frisk

allowed because…

1. limited intrusiveness

2. compelling need to protect officers and others in the field

stop-and-frisk (terry)

1. §  4^th applies to person in the street

   ·      Stop = seizure

   ·      Careful exploration of outer surfaces = search

   §  “terry stop” was implemented

   ·      When officer reasonably believes person is committing criminal activity/poses danger and investigates, they may conduct limited search (limited pat-down of outer garments to check for weapons) in order to ensure safety

stop and frisk (plain feel) (Dickerson)

1. §  Apartment building with history of cocaine trafficking

   §  Frisked, found no weapons but felt a lump

   §  LE moved lump around and thought it felt like cocaine

   §  SCOTUS

   ·      During legal pat-down, if officer immediately recognizes something as illegal, they may seize it

   o   Extension of plain view → plain feel

   ·      Actions were outside the bounds of terry

   o   Already knew it wasn’t a weapon, continued manipulating object

   §  If officer reasonably believes person may be armed and investigates they may conduct a limited pat-down for outer garments for weapons in order to ensure safety

   §  If object clearly feels like a weapon or object is clearly contraband, may be seized under plain feel  

Franks hearing

court proceeding used to challenge whether a police officer lied or left out important facts to get a serach warrant