midterm 1 - general terms

Free Exercise Clause

- Prohibits Government from policies that burden religion

- Government can’t regulate BELIEF but can regulate ACTION

Supreme Court test:

- Belief has to be Sincerely Held, beliefs that are sincere not necessarily true

- Government must have a Compelling Interest when balancing the individuals’ interest to freedom of religion and law must be narrowly tailored = Strict Scrutiny Test

Militia

- Defend their community - free male citizens armed with muskets and bayonets

- Today - national guard - advanced weapons and technology

2a: two components

1. Right to a Regulated Militia – Necessary to the security of a free state

Group Right

2. Right of People to Keep and Bear Arms

Individual Right

- Read together or separate provides different meaning

- Refers back to different interpretations of our Constitution – Literal/Historical approach vs. living/breathing document

Historical Background – England

Englishmen kept arms as part of the militia

- Trained in the community

- They were butchers, blacksmiths – not professional soldiers

Some Limits:

- Guns could not be carried in public

- Limited to the wealthy – needed property to own a firearm

- King created a “Standing army” King controlled/ paid for by the Monarch

- This Standing Army used by King to suppress the colonies

Colonies: What did farmers want and why?

Wanted a professional army

- Feared an army controlled by one person – King/President

- Whoever pays them controls them!

-- Prefer members of the community that would not turn on the community

-- Bearing arms to defend your own property was a duty to the community

-- Some colonial laws mandated property owners to possess arms/ammunitions

Colonists’ Concerns

- Needed a Professional army to battle England (Necessity)

-- Unorganized militias would not be able to endure long fighting with England

- After war, colonists were concerned about keeping a professional army

- When drafted their State Constitutions they related right to bear arms with a well-regulated militia (Safeguard)

- Colonies concerned that they needed a militia to stand against the Federal Government’s Professional standing army

Amendment to Constitution: George Mason (Virginia)

- Worried a State Militia would be useless against Federal Govt if disarmed

- Included a “right to bear arms” in his proposed amendments:

-- A well-regulated militia. Composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed…”

- Senate changed the wording in the final draft

Collective v. Individual right

Collective Right Argument

- Explained text

- intent/concerns when amendment proposed

-- Needed a civilian militia to counter the professional army of the Federal Gov.

-- “Well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms”

Individual right argument

- Historical definition of militia

- “Body of the people”

- Constitution and bill of rights had referenced to the “right of the people” when discussing individual rights and protections

- Therefore, when used in his amendment, must also mean to protect an individual rights

Textual Analysis

Plain meaning of the amendment - no distinction between private use v. public use

Historical Tradition Analysis

Regulation in 1791 or 1868

3a

- No soldiers shall, in time of peace be quartered in any house, without consent of the owner

- Followed English bill of rights from 1689

4a

- Our right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated

2 clauses

1. Free from unreasonable searches and seizures

- Persons

- Houses

- Papers

- Effects

- Reasonable searches

2. Warrant requirements

- Probable cause

- Oath plus specificity (place & items)

Courts will have to interpret above

4a = reasonable expectation of privacy

Secure “in their persons, houses, papers, and effects”

What does this mean?

- Literal Meaning

- Limited to those 4 words

- Strict interpretivist

- Living doc

Warrantless searches: Exceptions

“Search incident to an arrest doctrine”

Search person

Concerned about weapons and safety of an officer

Area around the person

- Can reach area to hid /destroy evidence or a weapons

- Within their immediate control

- Limits by Chimel case - coin cas'e

Plain view doctrine - police allowed to search evidence in plain view if in lawful position

Plain feel

Exigent circumstances

public/officer safety - Terry v. ohio

No reasonable expectation of privacy

Consent

Automobiles - it depends

Reasonable Suspicion

Reasonable suspicion to detain must rely on totality of the circumstances, known to the officers at that time

- Fact specific

- Can reply on officer's training and experience

- Can make logical inference

- One fact may be innocent but can add them up to draw inference

- Reasonable suspicion on car stops - brief intrusion to investigate

- Reasonable suspicion allows office to stop and investigate

Probable Cause

- To arrest a person or to obtain a warrant

- Reasonable belief that crime was committed, and that person is responsible (beck v. ohio 1964)

- Probable cause allowed officer to arrest

Reasonable searches without a warrant

Border crossings:

- Probable cause is not necessary to search vessels and people - enforce immigration law

- Reduced expectation of privacy and strong government interest

Airport screenings:

- Probable cause is not necessary to search bags and luggage - safety

reduced expectation of privacy and strong government interest

Drug testing:

- RR operates can be drug tested after accident - state interest in saving lives

Exception to warrant - consent

Consent search is valid

- Parents give police consent to search child’s room

- Landlord can’t give permission to police to search tenant’s home

0 Roommate can give permission to search premises

Consent must be voluntary not coerced

Automobiles - exceptions to warrant rule

Police can search automobiles without a warrant:

1. Less expectation of privacy in s car compared to your home

2. Mobility of the vehicle would make it difficult to get a warrant before it is moved.

5a

- Rights to a grand jury

- Rights to be free from double jeopardy

- Right to self-incrimination

(Miranda Warnings)

- Right to Due process

(Fairness)

- Right of Eminent Domain

5a - rights to a grand jury

- Colonists concerned about gov. officials indicting civilians

History:

- Grand jury was a push back or protection against the arbitrary whims of the King.

- Rely on a neutral body of citizens before charging someone of a crime

- Colonies used Grand Jury Right in theory own State charters to protect their citz against local prosecutors appointed by the king

Grand Jury

Usually comprised of 23 citz/peers from community

- Investigated evidence of a crime and decide if accused should be prosecuted

- Sit for an extended period of time (i.e., 18m)

- Grand Jury (large) will issue an indictment

-- Formal charge

-- True bill - enough evidence

-- Not true bill - lacks evidence

- Grand Jury Indict, then Petit jury decides guilt or innocence

5a - Double Jeopardy Clause

- “Nor shall any person be subject to the same offense to be twice put in jeopardy of life or limb…”

- This attaches when the Jury is empaneled

-- All 12 sworn in

- What is “same offense”

-- Same evidence used in both trials triggers double jeopardy

- “Same evidence: likely will equate to “same offense”

Double Jeopardy - Exceptions

1. Mistrial - need 12 jurors to convict

- Jury Deadlock - Governmental can retry case if jury can’t reach a decision

2. Can be charged with multiple crimes for same act of conduct – may not be punished for same conduct

- Bank robbery

- 245 w gun on teller

- 422 threanting teller

3. Can also be charged by the State & Fed gov. For the same crime.

- Police Misconduct

- Rodney King trials

5a - Right Against Self Incrimination

Nor shall be compelled in any criminal case, to be a witness against himself

- Applied to Fed gov

- Protects citizens from powerful/coercive gov - use own resources

- Prevent inhumane treatment - coercive

- Idea of Fairness in the courts system

5a - Right Against Self Incrimination: Historical Background

England used secret courts

- Star chamber - decide innocence of guilt of someone in secret

- English prosecutors could question the accused - under oath

-- Admit guilt v. commit perjury

Colonies - Court system

-- King places own prosecutors in courts in colonies - used England method

-- States then added the right against self-incrimination in to the state chamber

Why do we have the right against self-incrimination?

- Accused are presumed innocent

- Gov. has burden to prove guilt

- Gov. has burden and resources

- Gov. must produce the evidence without coercing confessions

Totality of Circumstances

- Prior to being read Miranda Rights

- Used to see if confession was coerced

1. Provided little guidance to popo

2. Provided little guidance to lower courts

3. Court's decision lacked consistency

4. No clear bright like rule for courts or officers to follow

Why are Miranda Warnings necessary?

1. Custody

2. Interrogation

Interrogation

statements intended to elicit incriminating statement