U.S. Constitution & Civil Liberties: First, Second, and Fourth Amendments

No right is absolute

Constitution lists certain rights are protected, they also have limitations and certain parameters

1st amendment

Prohibits congress from limiting speech, religion, press, right to petition government. right to freedom originally belonged to the church as well

When talking about religion in the constitution

wanted to make sure there was a distinction between church and state

establishment clause

congress shall make no law establishing a religion, or favoring one

exercise clause

congress shall make no law prohibiting the free exercise of religion

freedom of spoken word does NOT mean...

slander, liable, and clear and present danger

reasonable limits (1st)

espionage act, sedition, and the production and sale of obscene material

R.A.V v. St. Fall

government said its illegal to burn the cross, but not to destroy it

Brandenburg v. Ohio

established a 3 part test, speaker subjectively intended incitement, words used were likely used to produce lawless action, words objectively encouraged incitement.

Constitutional rights can be applied differently...

based on profession

One challenge nowadays...

recording police officers when they are being detained, it is protected in a public place.

Freedom of press...

Can be restricted in 2 ways... prohibits the publishing of certain materials. and publish matters that are seditious, liable or obscene.

Right to peaceful assembly

gather together and speak their minds, and they used to not be able to.

freedom of association

unenumerated right that falls under the 1st, you don't have to either.

if convicted...

rights to freedom of speech are reduced

Rational basis test

reasonably related to prison interest, censorship of mail, limit association within the institution, limit right to assemble.

gun control controversy

gun control controversy, is it a well regulated militia, and what does that mean?

Court's look at what a militia is

each town was expected to have a gun like a rifle. and when called, all able-bodied men were required to grab the guns and fight the red coats or indians

D.C originally wrote a law...

that prohibits a firearm in your home

D.C v. Heller

is it an individual right or for the militia? 5-4 vote said it was an individual right.

Most militias are now considered...

ant-government, and mostly negative

most oppose 2nd as an individual right because...

mass shootings

prefatory clause

talked about the operative clause

operative clause

the right to not be infringed on 2nd amendment

mcdonald v. chicago

used 14th amendment to give the right to keep and bear arms through the states with selective incorporation

states can impose stricter 2nd amendment rights how?

states differ, permits, prohibits where you can carry, felons and mentally insane can't carry, can't have machine guns

ghost guns

buying parts of a gun that can be put together to make a gun that hides that you have one

brady violence protection act

handgun checks, five day waiting period on handgun purchases

retired law officers...

can be allowed to carry in certain states after retirement

1993-2018

71% of all homicides are related to guns

gun control by states...

is not constitutionally prohibited, but there are parameters around it, and differ to the discretion of states

4th amendment does NOT prohibit...

searches and seizures, only unreasonable ones. searches and seizures are absolutely necessary

We need to use the 4th to...

balance individual rights with need for security

Search

an examination of a person place or vehicle for contraband or evidence of a crime

seizure

taking contraband or evidence by law enforcement

rule of agency

if acting as an agent of the federal government, evidence can be arrested if coerced into gathering evidence for them

private individuals are...

controlled by the 4th, unless they become an agent of the federal government

subjective expectation

did they believe they had an expectation of privacy

objective expectation

will the reasonable person say that the person had an expectation of privacy

Warrant clause

no warrant shall be issued without probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

All warrants have one major limitation

scope, and its determined by how you wrote the warrant (can't find an elephant in a matchbox), evidence will be inadmissible

Reasonableness contains...

totality of circumstances, were they cooperative? did they resist? was there a crowd? how big were they?

Probable cause is not...

beyond a reasonable doubt, but more than reasonable suspicion. Would a reasonable person believe that the crime was committed or the person committed that crime

Probable cause is needed…

is needed for a reasonable search and seizure, can't search without

some people you can get probable cause...

confidential informants, or informance knowledge based on good information

You get a warrant by...

neutral magistrates, a judge who is not directly involved, and it can be over the telephone if you worked with them prior

Warrants have...

expiration dates, have to be executed in the day time, and must return the warrant if time has expired

Knock and announce rule

15-20 seconds before you kick the door down, established by the banks case. announce yourself

Can apply for special warrants like...

no knock or nighttime warrants. can only happen if evidence will be destroyed, they will flee, or they are only there at night.

Terry v. Ohio

established stop and frisk, it does not require a warrant because it is a minor inconvenience, no arrest or asportation, reasonable articulable suspicion, a stop doesn't automatically allow a frisk, and a frisk is not tantamount to a search

If you conduct an unreasonable search and seizure...

evidence can be excluded, and officer can suffer criminal and civil sanctions/penalties

Exclusionary rule...

established by weeks v. U.S, originally only pertained to the federal government. was selectively incorporated later.

Mapp v. Ohio

provided the 4th amendment to the states

Silver thorne lumber company v. U.S

established fruit of the poisonous tree doctrine, the primary evidence is illegally obtained, then any secondary evidence is likewise tainted and may also not be used

Can exclude evidence also if...

Rocian case established that if the way the evidence was obtained shocks the conscious of the court, it will be inadmissible

Inevitable discovery doctrine

would've been discovered anyway

Harmless error

a slight mistake on the warrant but it was done correctly

Good faith

the officer acted appropriately, only applicable if it was acted in bad faith

consequences if you break the 4th

punished by department, sued by defendant, criminally charged

Searches and seizures must be conducted in a...

reasonable manner, don't do more than you should've

Rocian case

established that if the way the evidence was obtained shocks the conscious of the court, it will be inadmissible

Weeks v. U.S

established the exclusionary rule