Difference Between Federal Government and State Government
Federal government is one of enumerated powers. Tennessee is a government of general powers. Unlike the federal government, states have general police powers.
Supremacy of Federal Law.
Federal law often trumps state law. If power delegated exclusively to the federal government (by U.S. Constitution) then states cannot act.
Federal constitution serves as a floor, not a ceiling. This means that the state of Tennessee can provide greater protection to individuals than the federal government.
The Tennessee Supreme Court must make clear that it is deciding case based on the state constitution.
The Tennessee court must declare that its ruling is based on an "adequate and independent state law ground".
Federal courts will not disturb a state court judgment which is based on an adequate and independent state ground so long as the result does not violate the federal constitution.
Plain Statement Rule
If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for purpose of guidance, and do not themselves compel the result that the court has reached
Article 1, Section 7 - Tracks the 4th Amendment
TN Declaration of Rights
without evidence of the fact committed" (doesn't mention "probable cause")
"persons, houses, papers and possessions" (instead of effects)
Reasonable Expectation of Privacy
Two-part test asks whether: (1) the individual had a subjective expectation of privacy; and (2) whether society would view that expectation of privacy as objectively reasonable.
Three Levels of Police-Citizen Encounters
1. Full scale arrest (probable cause) - Officer must have probable cause
2. Investigatory detention (needs reasonable suspicion) - Entitles the officer to conduct a stop and frisk i.e. (Terry stop)
3. Brief citizen-police encounters (needs no suspicion) - Limited to brief informal questioning
Community Caretaking Exception
To establish that the community caretaking exception applies, the State must show that (1) the officer possessed specific and articulable facts, which, viewed objectively and in the totality of the circumstances, reasonably warranted a conclusion that a community caretaking action was needed; and (2) the officer's behavior and the scope of the intrusion were reasonably restrained and tailored to the community caretaking need.
Driving Out of Lanes
The Tennessee Supreme Court has held that police officers have sufficient reasonable suspicion of wrongdoing when they see a driver cross over highway lanes to stop the vehicle.
Warrant Requirement
Searches without a warrant are presumptively invalid and evidence obtained to a warrantless search is subject to suppression unless supported by a narrowly defined exception.
Tennessee recognizes the automobile exception which permits an officer to search a vehicle if the officer has probable cause to believe the vehicle contains contraband.
Some other common exceptions to the warrant requirement include:
1. Plain view doctrine,
2. exigent circumstances
3. consent
4. stop and frisk
5. search incident to a lawful arrest
6. hot pursuit
7. school searches
In order to justify a search incident to a lawful arrest as exception to the warrant requirement, four things must be shown: (1) probable cause of illegal activity; (2) probable cause attaches to an offense permitting a full custodial arrest; (3) arrest is contemporaneous to a search; (4) search is incident to the arrest and not the cause of the arrest
A search incident to a lawful arrest is justified by the need to protect the arresting officer and others from harm and the need to prevent the destruction of evidence.
The Tennessee Supreme Court recently ruled that the requirement for searches is relaxed if the person has a prior related conviction and is on parole. State v. Turner, 291 S.W.3d 155 (Tenn. 2009).
What Constitutes a Seizure?
The Tennessee Supreme Court provides that a person is seized when they reasonably believe that they are not free to leave.
Tennessee court rejected the standard applied by the U.S. Supreme Court in California v. Hodari D (1991) - "a person is "seized" for purposes of the Fourth Amendment only where an officer uses physical force to detain a person or where a person submits or yields to a show of authority by the officer."
Instead the Tennessee Supreme Court determined that the proper test for a seizure was the older U.S. Supreme Court case, U.S. v. Mendenhall, 446 U.S. 544 (1980) - a seizure occurs when "in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.
When Is There Probable Cause for a Warrant from Informant?
The Tennessee Supreme Court in State v. Jacumin, 778 S.W.2d 430 (Tenn. 1987) ruled that Article I, Section 7 requires more protection than the flexible "totality of the circumstances" test employed in Illinois v. Gates (1983).
Instead, the Tennessee Supreme Court followed the older U.S. Supreme Court test derived from Aguilar v. Texas and Spinelli v. United States. The so-called Aguilar-Spinelli test requires the affidavit to set forth the: (1) informant's basis of knowledge of the information; and (2) the veracity or reliability of the informant.
Tennessee Courts recognize a difference between citizen informants and criminal informants.
The Tennessee Supreme Court ruled that an anonymous tip about reckless driving from justified an investigatory stop of a vehicle. State v. Hanning, 296 S.W.3d 44 (Tenn. 2009).
Roadblocks
(1) the gravity of the public concerns served by the roadblock; (2) the degree to which the roadblock advances the public interest; and (3) the severity of the roadblock's interference with an individual's liberty . With respect to the third prong, the Tennessee Supreme Court has explained that 2 fundamental findings must be in place: (a) the decision to set up the roadblock in the first instance cannot have been made by the officer or officers actually establishing the checkpoint, and (b) the officers on the scene cannot decide for themselves the procedures to be used in operating the roadblock.
No Good Faith Exception to the Exclusionary Rule in Tennessee
The Tennessee Supreme Court has NOT accepted or applied the good faith exception to the exclusionary rule articulated by the U.S. Supreme Court in U.S. v. Leon, 468 U.S. 697 (1984).
"This Court has held, adopting a good faith exception under the Tennessee Constitution would unduly reduce the protections contemplated for our citizens by the Tennessee Constitution, the legislature, and the Tennessee Supreme Court." State v. Howell (TN.Cr.App.)(3/18/08)
However, the Tennessee legislature has enacted the Exclusionary Rule Reform Act.
Four Corners of the Affidavit
Tennessee law provides that in determining whether or not probable cause supported the issuance of a search warrant only the information contained within the four corners of the affidavit may be considered. State v. Keith, 978 S.W.2d 861 (Tenn. 1998).
Open Fields
Tennessee courts indicate that privacy interests under Article I, Section 7 are more protective than under the federal courts with respect to the application of the open fields doctrine. State v. Lakin, 588 S.W.2d 544 (Tenn. 1979).
Article I, Section 8 -
"Law of the Land" Clause
The Tennessee Constitution's law of the land clause provides the same protection as the due process clause in the United States Constitution.
The loss or destruction of potentially exculpatory evidence may constitute a violation of Article I, Section 8.
There is no violation of Article I, Section 8 unless there is state action. Remember the state action doctrine!
State Action Doctrine
There is no violation of Article I, Section 8 unless there is state action
Article I, Section 10
Double Jeopardy
Double Jeopardy prohibits (1) second prosecution after acquittal; (2) second prosecutionafter conviction; and (3) protection against multiple prosecutions for the same offense.
Reversal of convictions is sometimes necessary to prevent a double jeopardy violation of multiple punishments.
Tennessee courts apply the Blockburger test to determine if there is a double jeopardy violation: (1) Whether the alleged statutory violations arise out of the same act or transaction. (2) Whether each statutory offense contains an element distinct from the other statutory offense.
Privacy Protection - Article I, Section 8
1. Abortion
2. Parents' constitutional right to privacy
3. Private gay sex
4. Right of rebellion against arbitrary government
Article I, Section 11 - No Ex Post Facto Laws
1. A law which provides for the infliction of punishment upon a person for an act done which, when it was committed, was innocent.
2. A law which aggravates a crime or makes it greater than when it was committed.
3. A law that changes punishment or inflicts a greater punishment than the law annexed to the crime when it was committed.
4. A law that changes the rules of evidence and receives (sic) less or different testimony than was required at the time of the commission of the offense in order to convict the offender.
Article I, Section 9 - Voluntariness of Confessions
Protection is greater and broader than federal
Extraction of an illegal, unwarned confession from a defendant raises a rebuttable presumption that a subsequent confession, even if preceded by proper Miranda warnings, is tainted by the initial illegality.
Nine Factor test to determine whether the subsequent confession is voluntary:
1. coercive tactics in first confession and a causal connection between illegal conduct and subsequent confession;
2. temporal proximity (closeness in time) between the first and second confessions;
3. Miranda before the second confession;
4. Circumstances occurring after arrest and up to the subsequent confession;
5. Coerciveness of the atmosphere of the questioning;
6. Presence of intervening factors between two confessions;
7. Whether the defendant initiated the effect of having already confession;
8. Whether defendant initiated conversation that lead to the subsequent confession;
9. Defendant's sobriety, education, intelligence level
Article I, Section 9 also provides a right of confrontation.
Article I, Section 9 - Right to a Jury Trial
Provides for a right to a jury trial in all criminal prosecutions
Article 1, Section 9 - Right to a Speedy Trial
The courts look at four factors: (a) duration of delay, (b) reason for delay, (c) whether defendant asserted his right to a speedy trial, and (d) prejudice to defendant.
Article I, Section 9 - Effectiveness of Attorney
Article I, Section 9 also protects an individual's right to representation by an attorney. To show ineffective assistance of counsel a defendant must show both deficiency and prejudice.
Article I, Section 15 - Right to Bail
Guarantees a criminal defendant the right to pretrial release on bail, but that right is not absolute.
A defendant's bail can be revoked because of subsequent criminal conduct. Before trial, a defendant is entitled to an evidentiary hearing. Any pretrial bail revocation hearing must comport with due process.
Article I, Section 21 - Regulatory Takings
Requires the government to compensate the property owner for a regulatory taking of property.
Article I, Section 19 - Freedom of Speech and Press
Exceptions to free speech: False Advertising, Obscenity, Incitement to imminent lawless action, Fighting Words, Pornography.
TN Supreme Court has noted the broader wording of Article I, Section 19 than the First Amendment and has reserved right to grant greater protection - but has not explicitly done so.
If a law discriminates against speech based on content or viewpoint, it is subject to strict scrutiny.
Viewpoint discrimination is an egregious form of content discrimination.
Article I, Section 3 - Freedom-to-Worship
More protective of religious freedom than the First Amendment, but it has interpreted it as virtually identical to the First Amendment.
This provision mirrors the two religious liberty clauses of the First Amendment - the Establishment Clause and the Free Exercise Clause.
Article I, Section 16 - Basically the Eighth Amendment
Is the punishment cruel and unusual?(1) Does the punishment for the crime conform with evolving standards of decency? (2) Is the punishment disproportionate to the offense? (3) Does the punishment go beyond what is necessary to accomplish any legitimate penalogical objective."
It violates Article I, Section 16 to execute an inmate who is mentally disabled. By Tennessee statute, a defendant must show three things to show that he or she is intellectually disabled: (1) IQ under 70 (2) Deficits in adaptive behavior (3) That intellectual disability manifested before age 18.
The Tennessee Supreme Court upheld the state's system of lethal injection , the method of execution in the state. State v. Kiser, 284 S.W.2d 277 (Tenn. 2009).
Equal Protection - Article XI, Section 8 and Article I, Section 8
Same as federal.
Article 1, Section 20 - No Retrospective Laws
Prohibits Retroactive laws.
Article II, Section 17 - Single Subject and Caption Clause Challenge
No bill shall become law which embraces more than one subject, that subject to be expressed in the title."
The purpose of this section is to prohibit omnibus bills and bills with hidden purposes. However, codification of the bill cures all defects. If a crime is committed before the act was codified, the defendant may bring a caption clause challenge.
If the text and title do not match, it is considered a violation.
Article II, Section 18 - How does a Bill Become a Law?
Bills can originate in either house. The bills must be considered and passed on 3 different days in each House. They must be passed by a majority vote and signed by the governor.
How Can the State Constitution Be Amended? - Article XI, Section 3
1. By legislature
2. By constitutional convention
Article VI, Section 14 - Fifty-Dollar Fine Clause
No fine shall be laid on any citizen of this State that shall exceed 50 dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars
This provision applies when the fine is considered punitive in nature.
Penalties assessed by an administrative agency are NOT subject to the fifty-dollar limitation
There are two exceptions when a trial judge may impose a fine of greater than $50: (1) when the defendant waives his right for a jury to determine the amount; and (2) when the fine is set by statute and allows for no judicial discretion.
Article VI, Section 9 - No "Summing Up" by Judges
It may violate Article VI, Section 9 if a trial judge allows a prosecutor to charge a jury with respect to applicable enhancement factors.
Article VI, Section 11 - When Judges Can't Hear a Case
No judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by affinity or consanguinity, within such degrees as may be prescribed by law, or in which he may have been of counsel, or in which he may have presided in any inferior Court, except by consent of all the parties.
Article VI, Section 12 - Mandatory Statement on Indictments
All writs and other process shall run in the name of the state of Tennessee and bear test and be signed by the respective clerks. Indictments shall conclude, 'against the peace and dignity of the state.
Separation of Powers
With respect to claims that law infringes on powers of the judicial branch, the Tennessee Supreme Court employs the "adjudicative function" test.
Courts recognized there cannot be a hermetic sealing of branches and there is some necessary overlapping.
Verifying a Writ
A petition for a common law writ of certiorari must not only be verified, but must also be sworn to under oath, typically through the use of a notary public.
Impeachment of Officials
Article V
House impeaches and tried in Senate. 2/3 vote in Senate for conviction with the Chief Justice of TN S.C. presides
Who can be impeached? "The governor, judges of the Supreme Court, judges of the inferior courts, chancellors, attorneys for the state, treasurer, comptroller, and secretary of state, shall be liable to impeachment.
Judges - Article VI
Constitution provides for one Supreme Court of 5. No more than 2 can come from any one grand division.
Removal of judges (distinct from impeachment) - Article VI, Section 6
Concurrent vote in both Houses - 2/3 vote in each
Selection/Election of Judges
Currently matter of great controversy in the state. Right now appellate judges are under the retention system. They are appointed by the governor after members are selected by a 17-member Judicial Selection Committee.
Some argue that this retention system violates Article VI, Section 3: "Section 3. The judges of the Supreme Court shall be elected by the qualified voters of the state.
Unenforceable Provisions of the Tennessee Constitution -
Article IX, Section 1
Prohibits minister from holding legislative offices. This was invalidated by the U.S. Supreme Court in McDaniel v. Paty, 435 U.S. 618 (1978)
Unenforceable Provisions of the Tennessee Constitution -
Article IX, Section 2
Prohibits atheists from holding state offices. This is unenforceable given the U.S. Supreme Court's decision in Torcaso v. Watkins, 367 U.S. 488 (1961).
Right to an Education
Article XI, Sec. 12 provides that the state recognizes the inherent value of education and encourages its support. The General Assembly shall provide for the maintenance, support, and eligibility standards of a free public education.