The American Constitution was founded as
a plan to bring about commercial and political stability.
Equality, to the extent that it was dealt with was not directed toward individuals, but as a means of balancing power among the various states.
Under the Federal Constitution, who are the operative elements?
States
The original plan, a confederacy, was a
system of national organization where the individual states were preeminent with little or no over-riding central authority.
Although the States banded together for self-preservation, they largely maintained their autonomy on all but issues of national in
What was the primary moving force behind uniform action within the confederacy?
Fear
Fear led the states to trust each other only when the agreement stood to increase collective security or to increase collective wealth.
National responsibilities, for which the individual states were responsible, were ignored.
There was a "full faith and credit" clause in the Articles of Confederation but no ________
interstate court system through which an aggrieved business person or banker could obtain recourse in the event of a default.
Shays rebellion
an armed uprising in
central and western Massachusetts from
1786 to 1787.
The rebels, led by Daniel Shays and
known as Shayites (Regulators), were mostly poor farmers angered by crushing debt and taxes.
Annapolis convention
Was called in 1786 to discuss the creation of a system for the uniform regulation of commerce.
was called under the auspices, or at least the acquiescence, of the Continental Congress.
No agreement was reached, but the delegates did recognize the need for
The Constitutional Convention
They met in 1787. All but one state (Rhode Island), attended the new convention
The Constitution
Under the Constitution, the Federal Government could directly enforce action upon a member state.
each citizen would be a citizen of both the national and state entity.
owe allegiance to both entities and be required to accept the mandates of each.
Structure of the Constitution
A Bicameral Legislature.� Provided protection for small states.
A National Chief Executive. � Provided national direction.
A National Judicial branch.
� The creation of a strong Federal government mandated the need a Judicial branch to enforce Federal Law
Protection of Individual Rights
The Constitution contained few provisions protecting individual rights.
Most notable in this regard is the tacit toleration of slavery.
Exceptions included:
1) Protection against suspending habeas corpus,
2) The protection of those charged with treason,
3
Why was there no Bill of Rights?
Many states had their own Bills of Rights.
Federalists initially argued that inclusion of
some rights would disparage those which were not included
Is there power beyond and above the Constitution itself?
Yes
Is the Constitution merely a device whereby pre-existing organic power was redirected?
Yes
The Source of National Power
The Constitution rechanneled the power that came into being upon the declaration of sovereignty undertaken by the Declaration of Independence.
it was founded upon natural law and came into being with the Declaration of Independence.
certain powers pre-exi
We the People
added by Gouverneur Morris
Morris changed "We the People of the states" to "we the People of the United States.
The role of the ratification process (Constitution)
The Constitution went directly to the original organic source of the "national" power, the People, by means of ratification conventions which for convenience were held in the individual states.
It did not truly recognize the states in the ratification pro
Proof: McCulloch v Maryland (Constitution)
. . . and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people.
Judicial Supremacy
the concept of Judicial Supremacy was drawn from English precedents predating the Constitution.
The Fourteenth Amendment
No State shall make or enforce any lawwhich 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 j
The Least Dangerous Branch?
The Judiciary, "will always be the least dangerous to the political rights of theConstitution" (Hamilton, Federalist 78).
[It has] "no influence over either the sword or the purse, ...It may truly be said to have neither force nor will, but merely judgmen
Judicial Supremacy
the power to invalidate the actions of the Legislature and the Executive.
Judicial Supremacy does not appear in the Constitution, but is emblematic of the power transferred by the Declaration of Independence.
Origin of Judicial Supremacy
Marbury v. Madison, 1 Cranch 137.
Born of a trivial concept and a petty
dispute.
Firmly established the principle of
judicial oversight.
Marbury v Madison
Robert Marbury was one of 42 "midnight judges" created by Congress and appointed by Adams.
The commissions were not delivered before Jefferson took office.
Jefferson found them laying on his desk.
Jefferson reissued many of them, but not
that of Marbury w
The Writ of Mandamus
A writ of mandamus is a court order issued by a judge at a petitioner's request compelling someone to execute a duty that they are legally obligated to complete.
A writ can also be issued when the authority of a higher court is required to order a lower c
Natural Law
Natural Law gave the Court
the inherent power to refuse to follow an
illegal law or a "disobedient act.
The 1791 law was a disobedient act since
it conflicted with the Constitution.
Remember, the Constitution gave NO such
power to the Court. It drew upon
Three methods of interpretation of the Constitution
The Framer's Intentions.
The Meaning of the Words.
The Experiential ?? Approach.
The Framer's Intentions.
Little is known about what they thought.
District of Columbia v. Heller
The Framer's intentions works when the object being debated is precisely the same as that contemplated ???? by the Framers, in that case, the right to keep and bear arms.
The Meaning of the Words
Attempting to determine the intent of the framers by looking strictly at the meaning of the words they wrote.
It fails for the same reasons as the Framers Intentions.
The Constitution was intentionally vague
The Experiential Approach
Attempts to resolve modern dilemmas using the spirit and character of the framers beliefs
Rights" can have three basic sources:
Direct rule or edict.
By interpretation of an organic instrument.
Religion or social custom.
The influence of Locke
John Locke published his Second Treatise on Civil Government.
written to delegitimize the existing monarchy in support of the creation of a constitutional monarchy.
Thomas Hobbes
The Leviathan
stated a case for strong central authority.
the natural state, the state of nature, was one of discord. Hobbes argued anarchy s would lead to a "war of all against all" where no man would be free.
Locke vs Hobbes
Locke did not subscribe to the view that the natural state among men was one of violence.
Locke believed that Nature's abundance produced a natural peace.
Locke also possessed a Biblical belief that in the natural state all were equally entitled to the wo
Natural Law (Locke)
For Locke, to be legitimate, each succeeding state of society should closely mirror the rights that man possessed in nature.
Property
In the natural state, there was NO concept of "property" or "ownership."
In crafting a theory of civil government, Locke had to deal with and legitimize the existing twin concepts of "ownership" and "property."
Locke postulated that although in nature eac
Money
Money thereafter followed as a means of preserving fungible goods, such as crops, or property incapable of ready movement or permanent storage.
This gave all men the same right to money that they possessed to property.
With rights to property (which inclu
Liberty
all men are entitled to three things: "Their lives, liberties and estates."
Locke set forth that it is for this reason that mankind banded together in a
commonwealth.
"[P]reservation of their lives, liberties and
estates, which I call by the general name
Liberty as Property
Life and liberty become equally vested as property rights.
William Blackstone
the first great commentator on the law.
Four volume Commentaries summed up what he believed to be the decisional law of England.
Jefferson believed it to be the last great work on the state of the law.
For most lawyers, until the 1880's,Blackstone was all
Property and the Supreme Court
In the 20th century, application of property law to an attempted expansion of Rights derailed health and safety regulations and much of the early New Deal Legislation.
Lochner v. New York (60 hour limit on bakery employees' work week citing a violation of
Fundamental Rights
Are those which are deemed so essential that the proponent of any diminution must surpass an examination known as "strict scrutiny."
"Fundamental Rights" are those rights which are specifically called for in the Constitution or the Bill of Rights with the
Freedom of Travel
The first "Fundamental Right" NOT specifically enumerated in the Constitution.
Crandall v. Nevada
(without enumeration that freedom of movement is a fundamental right)
United States v. Wheeler (the right to be created by the Privileges and Immunities Clau
Freedom to Marry
Marriage was likewise not specifically enumerated in the Constitution.
Maynard v. Hill (where it was first recognized by the Court as an unenumerated "Fundamental Right")
Meyer v. Nebraska (the right "to marry, establish a home and bring up children" is a
The Right to Privacy
The third "Fundamental Right" that was not specifically mandated by the Constitution or the Bill of Rights.
"The right to be left alone"
Olmstead v. U.S (the Court for the FIRST time, discussed the right to privacy, but finding NO violation of Olmstead's
Griswold v Connecticut
(Douglas' Penumbra)
Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives?
The Court ruled that the Constitution did in fact protect the right of marital privacy against state
Eisenstadt v. Baird
In declaring the law unconstitutional, the Court retreated from Douglas's penumbra and found in the Equal Protection Clause the existence of an individual right to be free from this type of governmental interference.
"it is the right of the individual, ma
Obergefell v. Hodges 2015
Obergefell gave the court's stamp of approval to same sex marriage.
have been decided under Douglas' penumbra embodying the First, Second, Third, Fourth and Fifth Amendments.
could also have easily been decided as straight up Equal Protection issue based
The Future of Obergefell
Creation of new "Fundamental Rights"could render the Supreme Court a super legislature, actively resolving difficult societal issues by declaring them to fall under the extended ambit of a"Fundamental Right" under the DueProcess or Equal Protection clause
The beginning of the Fourth Amendment right.
It is an enumerated right which grew directly out of the events which immediately preceded the revolutionary struggle with England.
In England, the power to search was long used as a means of restricting freedom of the press.
A licensing system was introd
General Warrants
A General Warrant is the "Right" to search and seize anything.
Personal privacy was NOT given.
Entick v. Carrington (1765)
The issue in this circumstance was whether the defendants were trespassing when on the claimant's land, but ultimately the issue related to whether a private individual's right to protect their land was greater than the executive's right to enter it.
It w
Role of Bearing Armes
Throughout the Revolutionary debates, arms in the hands of the people were seen as a means of preventing tyranny.
Indeed, in Federalist 84, Hamilton intimated that no Bill of Rights was needed because of a well armed citizenry.
Writs of Assistance.
Enabled customs officers to enter and search
buildings for smuggled goods
Origins of the 4th amendment
The Fourth Amendment is the capstone of the first three Amendments, all of which concern major privacy interests that were seen as infringed upon by the actions of the British and deemed vital to the continued existence of liberty
Words of Limitation (Limit the scope of 4th amendment)
The words:
1) "unreasonable searches and seizures"
2) "papers, houses, persons and effects,"
Are words of limitation that limit the scope of the Fourth Amendment and concurrently describe the freedom which is thereby afforded.
Words of Limitation (Limit government action of 4th amendment)
The words:
1) "probable cause"
2) "particularly describing the place to be searched, and the persons or things to be seized"
Are words of limitation that limit the power of the Federal Government to withdraw the freedom created by the Amendment.
The All Important "and" in the 4th amendment
...shall not be violated, AND no Warrants shall issue..."
This created two distinctly different protections.
1) The first prevented "unreasonable searches and seizures."
2) The second prevented searches and seizures authorized by warrants issued upon les
Warrantless Search
Must not be "unreasonable," interpreted to mean probable cause.
Search by Warrant
MUST have probable cause
Boyd vs. United States
(This is the ORIGIN of the "exclusionary rule")
A judge ordered George and Edward Boyd, New York merchants, to produce an invoice to prove suspected smuggling. This was a seizure of the invoice.
Is the forced production of papers "a search" within the meaning of the Fourth Amendment? Must competent but
Weeks v United States
(the first APPLICATION of the "exclusionary rule.")
Police entered the home of Fremont Weeks and seized papers which were used to convict him of transporting lottery tickets through the mail. This was done without a search warrant. Weeks took action against the police and petitioned for the return of his p
Although Week's home was also searched by state agents, Weeks controverted only the Federal Search. Why?
Pre-Mapp v. Ohio, the Fourth Amendment had NO effect upon State searches.
Barron v The City of Baltimore
Is the Fifth Amendment's 'Just Compensation' clause binding upon the States?
The Court said NO: The Fifth Amendment was NOT binding upon the states.
The Silver Platter Doctrine
Because the Fourth Amendment was not binding upon the states, the states were free to conduct "illegal" searches.
The Feds could use evidence "illegally"
seized by state authorities.
A policy no longer in effect that allowed a state law enforcement office
United States v. Cruikshank
interpreted the Privileges and Immunities Clause as applying only to the privileges or immunities pertaining to the Federal Government.
14th Amendment
Enacted in 1867 to ensure that returning rebellious states granted the full benefit of citizenship to African - Americans.
Selective Incorporation
The process by which provisions of the Bill of Rights are brought within the scope of the Fourteenth Amendment and so applied to state and local governments.
Relies upon the Due Process Clause [nor shall any state deprive any person of life, liberty, or p
Full incorporation
Relies upon the Privileges and Immunities
Clause ["No State shall make or enforce
any law which shall abridge the privileges
or immunities of citizens of the United
States . . ."].
This clause is deemed to incorporate the
entire body of the Bill of Rights
Wolf v Colorado
Were the states required to exclude illegally seized evidence from trial under the Fourth and Fourteenth Amendments?
In a 6-to-3 decision, the Court held that the Fourteenth Amendment did not subject criminal justice in the states to specific limitations
Rochin v. California
Did the police procedure forcing Rochin to vomit violate the Fifth Amendment privilege against self-incrimination and the Due Process Clause of the 14th Amendment?
The Court reversed the conviction. The police violated Rochin's right to due process of law
Mapp v. Ohio
Dollree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression.
Is the Weeks exclusionary rule binding upon the states thro
Purposes of the Exclusionary Rule
To deter illegal conduct by the state.
To preserve judicial integrity.
To remove the incentive for unlawful behavior.
Albright v Oliver
Albright claimed that Oliver violated his Fourteenth Amendment substantive due process right by prosecuting him without probable cause.
Can a citizen prosecuted without probable cause obtain relief under 42 U.S.C. 1983 for the deprivation of substantive d
Application of the Exclusionary Rule
Searches of persons include everything from frisking or touching, fingernail scrapings, extraction of blood.
It generally does not include that which is opento others. Such as one's appearance, ones voice characteristics (as opposed to the content of the
Fourth Amendment Exceptions
Plain View Exception"
"Open Fields"
"Discarded and abandoned property."
"Garbage."
"Overheard"
"conversations."
"Misplaced trust."
"Odor."
"Plain feel.
The Fourth Amendment has no effect whatsoever upon
action independently performed by a private entity.
What is the first formal charge in the case of murder?
Felony Complaint
Preliminary Hearing
An initial hearing in which a judge decides if there is probable cause to believe that the defendant committed the crime with which he or she is charged
to determine if there is "reasonable cause" to hold the defendant for the action of the Grand Jury.
The purpose of the Grand Jury is to
investigate felonies..
Its proceedings are secret.
The Grand Jury consists of 16 to 23 people
The Grand Jury can:
Indict (a true bill).
Send the case back to the local criminal court as a misdemeanor or a violation (direct the filing of a prosecutor's information).
Find no charges are warranted (a no bill).
Arriagnment
The first act in a crimnial proceeding, where the defendent is brought before the court to hear charges and enter a plea.
At the arraignment, the Judge (now a County Court Judge) reads the indictment to Killer, advises him of his right to counsel and asks
Motions
written requests asking the Court to do something in the case.
Most common requests are:
Suppression of statements;
Suppression of evidence
Dismissal of the charge
Motions must be made in writing and must be filed with the Court no more than 45 days after
Pre-trial Hearings
The Hearings ordered as a result of the motions are known as Pre-Trial Hearings.
The pre-trial hearings are run like the preliminary hearings.
Some popular hearings, known by the cases that established them, are:
Huntley (People v. Huntley) - voluntarines
The issue of Probable Cause will be decided in a
pre-trial hearing.
The Reasonable Person Test
The Reasonable Person Test" is a test of "objectivity."
attempts to balance facts and circumstances against the decision making process of an objectivestandard, what a "Reasonable Person" would believe.
When Magistrate (Judge) applies the "reasonable person" standard?
At the time of the warrant application [when a warrant is issued].
At the time of the pre-trial hearing [when it is a warrantless search or arrest].
Two types of Probable Cause
Probable cause to search.
Probable cause to arrest
Probable cause to arrest DOES NOT mean that a search warrant could lawfully issue.
Nor can it be said that probable cause for a search warrant would necessarily justify an arrest.
Each requires a showing
Probable cause to arrest.
speaks to the individual.
A reasonable belief that a person has committed a crime.
Probable cause to search
speaks to an item sought.
A reasonable belief that the items sought will be located at a stated location.
In the case of arrest, the conclusion concerns the ______ of the arrestee.
guilt
In the case of a search warrant, the
conclusions go to ________ and _______
evidence (and its present location.)
At which point in the proceedings is probable cause measured?
The point of analysis is the moment immediately prior to the arrest or seizure.
When a Warrant is issued, at what point does the Probable Cause is determined?
at the time the information is presented to the Magistrate to obtain the warrant.
After the search, unless the defense can establish that the warrant was issued upon perjured information, there will be no hearing.
Brinegar v. United States
The rule of probable cause is a practical, non- technical conception affording the best compromise that has been found for accommodating these often opposing interests
Federal "Special Needs" Exception (on Warrant and Probable Cause)
The government must show (1) a purpose outside of general law enforcement, (2) that this purpose makes obtaining a warrant or probable cause impracticable, and (3) that this purpose outweighs the privacy interest infringed.
Objective probable cause relies upon
the facts and circumstances presented and any reasonable inference that can be drawn from them.
Subjective probable cause looks to
the intentions of the officer and his/her reason(s) in making the arrest or the search.
Good Faith Exception (on Warrant and Probable Cause)
If the officer believes he/she has a validly
issued search warrant that subjective belief is sufficient.
United States v. Leon
United States v. Leon
Is there a "good faith" exception to the exclusionary rule?
Yes, there is such an exception. The justices held that evidence seized on the basis of a mistakenly issued search warrant could be introduced at trial.
The exclusionary rule, IS NOT A RIGHT but
Pretext
A legitimate reason to cover an illegal purpose.
Whren v. United States
the Defendant argued that the traffic stop was just a pretext for a drug search and that no Probable Cause existed for the drug search.
The United States Supreme Court held that a stop of a motor vehicle WAS NOT pretextual when the officer carrying out th
The New Jim Crow
The premise here is that police will utilize a minor traffic offense when the driver is black and will ignore the minor offense (such as failing to signal a lane change or obstructed windshield) when the motorist is white.
Aguilar vs. Texas (On hearsay information)
The Court determined that the allegations were not enough.
The affidavit did not set forth sufficient facts to demonstrate that the anonymous information was reliable.
Spinelli v. United States (On hearsay information)
hearsay information is presumptively unreliable unless a sufficient basis for the information can be shown.
The Auguilar/Spinelli Test (on hearsay information)
Aguilar = Reliability for the
hearsay information.
Spinelli = Basis for the hearsay information.
Illinois v. Gates
Abandoned Aguilar/Spinelli test.
Adopted the "totality-of-the-circumstances"
approach for hearsay
Approved an anonymous letter of drug
activity that was corroborated by information provided by federal agents.
Alabama v. White
Does an anonymous tip alone provide a reasonable suspicion sufficient to stop and search an individual's car?
Yes. The Court held that "the totality of the circumstances" provided a sufficiently reasonable suspicion that White possessed illegal drugs. Eve
People v. Johnson
Held that Aguilar-Spinelli and not Gates is
to be applied under the Constitution of the State of New York.
The Descriptive Clause: "Person or Place
The Fourth Amendment requires that the warrant particularly describe the person or place to be searched.
A search warrant for premises
does not authorize the search of
unnamed persons on the premises.
"No one else should be searched besides the ones on the list
Ybarra v. Illinois
Does the Illinois state statute that allows authorities to search persons on the premises during the execution of a valid search warrant violate the Fourth and Fourteenth Amendments?
The Supreme Court held that there was no probable cause to suspect any o
Prior restraint
An unconstitutional attempt to prevent publication or broadcast of any statement, which is restraint on free speech and free press prohibited by the First Amendment to the Constitution
Stanford v. Texas
Does that description adequately meet the
Constitutional requirement that a warrant "describe the place to be searched, and the person or things to be seized."?
NO
Books and papers CANNOT be seized unless
and until they have been reviewed by a neutral and
What is Probable Cause?
Reasonable Person standard.
What does Probable Cause or Reasonable Person Standard attempt to do?
It attempts to balance facts and circumstances against the decision making process of an objective standard, "The Reasonable Person.
Probable cause to arrest and probable cause to search are
different
Probable Cause is determined by
what is known at the moment the warrant is issued or the search takes place.
Probable Cause cannot be determined by
what is subsequently found or learned.
Probable Cause is strictly based on an _______ standard
Objective
The intention of the officer generally plays ________ part in the determination
no
Hearsay must have a _________ and be ________ (New York rule).
sufficient (known) basis
reliable
The description of person and place must be __________
reasonably specific.
Books and pamphlets can be seized only when __________________
content is first reviewed by a magistrate.
After the content is first reviewed by a magistrate, the warrant must specify the books in a ______________ fashion prior to seizure.
non-conclusory