According to Harr, Hess and Orthmann (2012), “Many symbolic acts, although often
highly controversial, fall under First Amendment protection, including flag desecration, cross
burning, nude dancing, and the display of yard signs” (p. 150). The balance that the Supreme
Court has struck on symbolic acts of free speech is balancing the public good against the
personal interests in the symbolic act to set a limit that is seen as reasonable for what can and
cannot be done. For instance, Barnes v. Glen Theatre (1991) nude dancing was seen as
potentially a first amendment right, but they balanced that with the community’s need to protect
the morality of the area, so imposing there to be rules making it more appropriate that some
concessions be made in regards to pasties and G-strings be worn.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “Prisoners’ rights based on the First
Amendment involve censorship of mail, expression within the institution, association with the
institution, religion, appearance and visitation rights” (p. 161). Going to prison does not strip an
individual of their rights, but does allow for there to be curtailments of their rights if the
correctional institution has an actual reason for the curtailment. For instance, Thornburg v.
Abbott (1989) proved that not all publications would be acceptable to be received as anything
that would be bad for the institution could be refused.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “The free exercise of religion involves
both the freedom to believe and the freedom to act” (p. 134). The framers had a very good
reason to include the free exercise clause in the Constitution. Many of the people that came to
the United States when it was first being formed decided to leave what they knew because they
were facing religious persecution at home. They came to a new world to give their families a
chance to practice their own religion and beliefs without worry over dealing with intolerance.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
At first, just a reliable informant with information backed up by a police officer was
enough for probable cause. Next, there was a two-pronged test that evaluated the credibility of
the informant and their basis of knowledge along with the reliability of their information.
Following this test, a decision showed that belief in the informant must exist. “This two-pronged
approach was abandoned in 1983 in Illinois v. Gates, which refined the definition of what
constitutes probable cause and the ‘totality of the circumstances’ to be considered” (Harr, Hess
and Orthmann, 2012, p. 205). This “totality of the circumstances” is now currently the test being
used.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
“In Maslow’s hierarchy of needs …, the need for security comes right after the basic
physical needs of food, clothing and shelter” (as cited in Harr, Hess and Orthmann, 2012, p. 194195). The Fourth Amendment satisfies this level of need in that it gives individuals the right to
not have to put up with unreasonable searches or seizures. Law enforcement agencies are not
allowed to enter the security of a person’s home without probable cause.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “While rendering general checkpoints to
check people, even if to check for public safety concerns, for the most part unconstitutional, the
Court reiterated in Edmond (2000) that its decision did not change the lawfulness of sobriety or
border checkpoints...” (p. 244). In Brown v. Texas (1979) a test was created that would balance
the public concern of why the roadblock was needed, the potential of the roadblock serving the
purpose it was intended for successfully, and how much the roadblock would impede or
inconvenience the everyday driver being stopped.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
“An unlawful search or seizure can have two serious consequences: (1) the evidence may
be excluded from court and (2) internal sanctions as well as civil and criminal liability may be
incurred” (Harr, Hess and Orthmann, 2012, p. 214). This means that an officer involved with
police misconduct that violates the Fourth Amendment may be reprimanded in their permanent
record, and could face lawsuits in criminal and civil courts. Criminal charges could possibly end
their career, and a civil lawsuit could cost them a great deal of money.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “…items felt during a lawful stop and
frisk may be retrieved if the officer reasonably believes the items are contraband and can
instantly recognize them as such” (p. 482). The court felt that in Minnesota v. Dickerson (1993),
police officers are able to utilize the plain touch doctrine to protect themselves. This can be used
to determine if the person that has been stopped is in possession of a weapon like a gun or knife
that could be used against the officer or others.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
“Frisk” searches can be conducted under specific circumstances. According to United
States v. Tharpe (1976), “If, during such a stop, officers are reasonably suspicious that the
situation is dangerous, they may order the river out of the car and frisk him or her and can order
any passengers in the car out and frisk them…” (as cited in Harr, Hess and Orthmann, 2012, p.
242). The limitations are that the officer must be performing a legal stop, and must have
reasonable suspicion that there is potential danger to them while performing this stop.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
There are certain places and things that people have a reasonable expectation of privacy
in. These include:
A person’s home - Payton v. New York (1980)
Phone booth/phone line – Katz v. United States (1967)
Trash right beside the home – California v. Greenwood (1988) Note: if the trash is no longer on
the private property or curtilage of the home, then it becomes fair game to law enforcement
(Harr, Hess and Orthmann, 2012).
Their person (such as blood) – Missouri v. McNeely (2013)
Vehicle – Arizona v. Gant (2009)
Restroom - United States v. White (1989)
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
It can be understandable that minor students at a public school might not have full control
of their privacy in a public school setting. The standard that is used to determine the expectation
of privacy of students in public schools is reasonableness. “A surprise to some people is that
prisoners have constitutional rights. However, the rights prisoners have are limited” (Harr, Hess
and Orthmann, 2012, p. 307). The same standard of reasonableness is used to determine the
expectation of privacy by prisoners at correctional facilities.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “... Carroll v. United States (1925)
established that vehicles can be searched without a warrant provided ... there is probable cause to
believe the vehicle’s contents violate the law and ... the vehicle would be gone before a search
warrant could be obtained” (p. 317). A moving vehicle would be the perfect way to get away
with evidence that may incriminate the driver or passenger because, by its very nature, it is able
to travel at fast speeds outside of the jurisdiction of the agency that pulled the automobile over.
This exception protects this from being a loophole that can be exploited by criminals.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
Kyllo v. United States is a case where law enforcement used heat scans to determine if the
suspect was growing marijuana in their home. According to Harr, Hess and Orthmann (2012),
“… in Kyllo v. United States (2001) the Supreme Court again addressed the issue of whether a
search warrant was required for police to scan a home from the street and compare that infrared
image to other neighboring buildings…” (p. 286). The Supreme Court reversed Kyllo’s
conviction because they found this to be a violation of his privacy. Technology is always finding
new ways to get into a person’s home, and it is important to identify how it impacts a person’s
privacy.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “Interestingly, in Hudson v. Michigan
(2006) the Court specifically rules that violation of the knock-and-announce rule does not require
suppression of the evidence obtained during the ensuing search” (p. 217). The reasoning behind
this was that there is a warrant to search the premise. The knock-and-announce rule is meant to
protect the officers, protect the property, and protect the residents from being interrupted in an
embarrassing situation. It is not meant to give the resident a chance to hide the evidence that had
been described in the warrant.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “Although employees, no matter where
they work, have a degree of interest in retaining some privacy, it is lessened in the public
workplace context” (p. 309). One case involving this is O’Connor v. Ortega (1987) where an
employee who was suspected of misconduct, including sexual harassment and theft, had their
office searched by the officials at the hospital. Another case involving this issue was Ontario v.
Quon (2010). This case involved a government employee’s privacy when using electronic
communication. In both cases, as it pertained to work, and the safety of the workplace, it was
determined that employees do not have complete privacy in the workplace.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), the definition of a grand jury is “a group
of citizens who determine whether sufficient evidence exists to send an accused to trial” (p. 481).
A grand jury is created to determine if a case should go to trial rather than determine the outcome
of the trial. Grand juries have a larger number of people participating on them. Grand jury duty
takes place for only a few days a month, but they are on the jury for several months unlike jury
duty at a trial where it is all day until the trial is over. There are no attorneys representing the
witnesses called before the grand jury. Any evidence available is fair game to the grand jury
while the jury at a trial can only view the evidence allowed by the judge.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “The precedent landmark case, Katz v.
United States (1967), recall, involved such an issue. Recordings of phone calls placed from a
public telephone booth were used in obtaining the defendant’s conviction” (p. 349). The
standard used was that the Katz had a reasonable expectation of privacy while in the phone booth
and that a warrant should have been obtained for the phone recordings. This found that Katz was
protected under the Fourth Amendment.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “Miranda v. Arizona (1966) is perhaps
the best-known law enforcement case ever decided” (p. 330). Ernesto Miranda had been arrested
because of circumstantial evidence, and interrogated for two hours after which he signed a
confession to the rape. He had not been told he could have counsel, could remain silent or that
anything he said would be used against him. The Supreme Court ruled that the confession could
not be admissible because of the lack of the police officer’s informing him of his rights, and
overturned his conviction.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “Beachheading, or a deliberate ‘end run’
around Miranda by purposely withholding Miranda warnings until after a confession is obtained
and then giving Miranda to re-ask the question, has been found by the Supreme Court to be
improper” (p. 342). This was a way for police to try to get around giving the Miranda warning to
suspects in hope that they could gain a confession before the suspect invoked their rights. It was
found to be a violation of Miranda.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “The government relied on a federal law,
Section 3501 of the Omnibus Crime Control and Safe Streets Act of 1968” (p. 344). This law
passed by Congress would allow any confession given voluntarily to be admissible to federal
court which would mean that it would federally overturn Miranda. The Supreme Court’s
response was that they saw no reason to overturn Miranda in that it had become firmly
ensconced in law enforcement behaviors and the culture of the country.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
A benefit of the grand jury system is that it protects against a person to be charged with a
capital crime without a grand jury indictment to prevent them from being persecuted by the
government. According to Harr, Hess and Orthmann (2012), “The Fifth Amendment states, ‘No
person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury…” (p. 352). A critique of the grand jury system is that individuals
are making big decisions on the future of a person’s life with only a few days a month being
involved.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “The Sixth Amendment right to counsel
applies only to the specific charges for which the defendant has been indicted or arraigned right
to counsel is ‘offense specific,’ that is, it applies only to the specific charges…” (p. 386). That
means that a person is eligible for counsel for any charge that they have, and for every case they
have they are entitled to representation. Texas v. Cobb (2001) is an example in that he was
charged with breaking into a home, and separately charged with murdering the woman and child
taken from the home he broke into. He had a lawyer for the burglary, but not for the murder
charges.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “The right to legal counsel means little if
the counsel provided is ineffective. Powell v. Alabama (1932) … was the first ineffective
counsel case. Understandably, what constitutes effective counsel can be debated…” (p. 387).
There are two tests that need to be passed to establish that there was ineffective assistance of
counsel. This includes if the performance of the counsel was below the standard of
reasonableness and whether or not the result of the case would have been different if the
counsel’s poor performance had been more adequate.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
The Eighth Amendment states that the government will not impose excessive fines, and
asset forfeiture can be considered a fine. According to Harr, Hess and Orthmann (2012), “The
Supreme Court unanimously ruled that the Eighth Amendment prohibition against excessive
fines applies to civil forfeiture proceedings against property connected to drug trafficking” (p.
403). United States v. Bajakajian (1998) was the first Supreme Court case that limited the asset
forfeitures under the Eighth Amendment in that the forfeiture was much larger than the amount
of money that was involved with his crime.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “The Gideon Court clarified the existing
confusing over which offenses necessitate counsel be provided. In some states, only death
penalty cases invoke the right to an attorney; in other states, only felonies and not misdemeanors
invoked the right…” (p. 374). Gideon v. Wainwright (1963) determined that suspects charged
with serious crimes should be provided legal counsel if they cannot afford a lawyer. Before this
case, this was treated as legal counsel could not be denied, but after the case, it was interpreted
that they should be given legal counsel. It was believed that this was essential to ensure a fair
trial.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “The trial must be convened speedily and
must be public” (p. 25). A trial must be public to ensure that there is nothing untoward occurring
that would make it an unfair trial biased toward one side or the other. It promotes faith in the
system for all parties involved, including the community where the crime was committed.
Judges are able to bar the press or public from witnessing a trial in some cases where victims are
minors that need to be protected or other issues make it necessary to do so.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “A more precise term to describe the
geographic area in which a case may be heard is venue, the place a specific case may come to
trial … (p. 40). Venue relates to the Sixth Amendment because of the Vicinage Clause. The
Vicinage Clause required that defendants are tried in the area where the crime was committed by
a jury of their peers that represent the community. Any of the venues can be used when an
offense happens in multiple places.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “In 1896, the case of Plessy v. Ferguson
was brought before the Supreme Court and heightened awareness of racial issues. Homer Plessy
had refused to abide by a law that required black people to sit in a separate train car” (p. 99).
The findings of the Supreme Court are that they upheld the ruling under the Separate but Equal
Doctrine where as long as equal facilities were available to minorities it was okay to segregate
the races.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
The three reconstruction amendments are the Thirteenth, Fourteenth, and Fifteenth
Amendments. According to Harr, Hess and Orthmann (2012), “The Thirteenth Amendment,
ratified in 1865, abolished slavery. The Fourteenth Amendment, ratified in 1868, granted
citizenship to all persons born or naturalized in the United States…” (p. 117). The Fifteenth
Amendment came in 1870, and provided the right to vote to citizens no matter their race, color or
if they had been slaves previously although this did not include women of any race. These were
designed to protect the rights of former slaves.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
The Fourteenth Amendment requires due process when it comes to disciplinary
procedures inside the prison. According to Harr, Hess and Orthmann (2012), “Wolff v.
McDonnell (1974) involved the claim that Nebraska’s disciplinary procedures, particularly those
relating to loss of good time … were unconstitutional” (p. 117). Bounds v. Smith (1977) was
another case that increased inmate’s rights in prison by the Fourteenth Amendment in that it
required them to have access to a decent library of legal books.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.
According to Harr, Hess and Orthmann (2012), “The Dred Scott decision (1856) ruled
that a freed slave still did not enjoy the right to remain free in a territory where slavery was still
legal” (p. 123). The Supreme Court determined that even free Black people were not citizens of
the United States, so were not afforded the protections of being a citizen. Due to this, the
Supreme Court rules that Dred Scott could not bring a suit against his owner because he was not
a citizen.
References
Harr, J. S., Hess, M. H., & Orthmann, C. H. (2012). Constitutional law and the criminal justice
system. (5th ed.).Belmont, CA: Wadsworth.