This week:
Lowi, Chpt 4 (Civil Liberties)
Griswold v. CT: Is there a constitutional right to
privacy?
5th Amendment protection of property.....1897
Gitlow v. New York, 1925, 1st Amend, Speech:
1. Background:
NY Criminal Anarchy Act of 1902
punish certain types of speech, regardless of INTENT
or OUTCOME
Gitlow distributing Left Wing Manifesto
WW1
2. Incorporation: a (delayed) constitutional revolution
very first part of one of the 1st 10 amendments considered to
limit a state action affecting personal liberties
Court recognizes that 14th Amend. Due Process Clause
is a basis for their jurisdiction over STATE acts
assume that speech is one of the fundamental privileges and
immunities that ALL CITIZENS (US citizens) share
1st amend "among the fundamental liberties protected by
the due process clause of the 14th amend"
3. Decision:
Some speech protected from state acts via Bill of Rights
reversing Barron v Baltimore (1833)
BUT, previous Supreme Court decisions
defined what speech is not protected, this was not
Gitlow back to jail, since this type of speech not protected
1925: NY has legitimate interest in regulating speech if
words used in such circumstances and are of such a
nature to create a clear and present danger they will
bring about a substantive evil (i.e., socialism)
(Holmes, in Schenk v US, 1919)
(Debs v. US 1919)
Sedition Act of 1918
Fed. crime of "uttering words that incite resistance...
or bring contempt to US govt, constitution, flag,
uniforms..."
Near v. MN (1931), 1st Amend, press
1. Free Press
Jay Near, publisher of paper in MN
attacks MN govt.
jailed under MN law
2. Court:
14th Amend due process clause...
prior censorship not accepted by ANY level of govt.
Near gets out
Rights of Accused Criminals (SLOW...)
most criminal case done in state courts
crim. procedure thus domain of state laws
Quest: what are fundamental (national) rights that
accused criminals have?
4th Amend - Search & seizure
1. Wolf v. Colorado, 1949
Court rules 4th amend prohibits states from unreasonable
search....
"security of one's privacy against the arbitrary intrusion
by the police, which is the core of the 4th amendment, is basic
to a free society."
"It is therefore implicit in the concept of ordered liberty....and
enforceable against the states through the due process clause of
the 14th Amend."
BUT...what evidence can/cannot be used unanswered
no application of federal standards of evidence...
4th Amend - Search & seizure
2. Mapp v. Ohio, 1961
Dollree Mapp, though to have drugs
police have warrant to search home for drugs
find pornography, convict her of possession
Court: goes beyond Wolf v. Colorado
no evidence can be used in STATE case that was
obtained illegally
STATE laws of admissible evidence overturned
FEDERAL law already forbid such evidence in
federal trials (Weeks vs. US, 1914)
Don King???
2014: What about your phone?
6th Amend., Right to Counsel
1. Betts v Brady, 1942
Betts indicted for robbery in MD
asked for attorney (a non capital case)
convicted
argued 6th Amend = right to fair trial
= right to assistance of counsel
for his defense
Brady MD AG (?)
Court: no, not in non-capital state cases
decision on process up to individual states
6th Amend., Right to Counsel
2. Gideon v. Wainwright (1963)
6th Amend right to counsel incorporated
Similar to Betts case, different justices
reversed Betts
Incorporation of Bill of Rights
14th Amendment -> liberties, due process -> protections
from State acts
• How far do protections extend?
• Found in what language in Constitution?
E. 1964-1969, The Warren Court...
7 major decisions on 4th, 5th, 6th amendments
overturning state criminal procedure rules
5th Amend, self incrimination (Malloy, 1964) and:
1. Miranda v. Arizona 1966, 5th Amend...
consider context:
until 1936 police could use beatings to get
confessions....did this end w/ 1936 court decisions
post 1936, "mental beatings" of accused...
Miranda's case, "mentally disturbed" w/ 9th grade educ.
 accused of kidnap and rape
 victim ID Miranda in line up
 questioned for 2 hours, then admits guilt
• never told he could refuse to answer questions
• never told he could have an attorney present
Court:
no STATE or fed. conviction if evidence obtained by
officers who failed to inform accused has a right to
NOT incriminate himself
must protect ALL accused because police have huge advantages
Miranda stabbed to death in 1976....
The Warren Court
Escobedo v. Illinois (1964)
Expanded 5th & 6th amendment rights
o arrested, asked to speak w/ atty, denied
o atty tried to contact him, was denied
o confessed w/o access to atty
"the investigation is no longer a general inquiry..when suspect
taken into police custody...[since police illicit incriminating
statements]"
must have attny present in questioning/interrogation
also, other 6th & 7th amend rights "incorporated":
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confronting witness (Pointer, 1965)
impartial trial (1966)
speedy trial (1967)
trial by jury (1968)
Burger Court (1969-86), Rehnquist Court (1986-2005)...
limiting rights of accused
questioning Warren Court decisions
Recent Decisions: Rights of Accused
Where can you expect your 4th Amend right to privacy?
"the right of people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures shall not be violated..."
1. Burger Court (1969-86), Rehnquist Court (1986 - 2005)
 limiting "incorporated" rights of accused
 questioning Warren Court decisions
 "good faith clause"
"overriding considerations of public safety" may
justify interference w/ 4th Amend protections
"War on Drugs"
Terrorism
2. Rehnquist Court
Minnesota v. Carter, 1998
Carter arrested after seen through window bagging
cocaine
o In another person's apartment
o visiting
o not over-night guests
Argued use of evidence violated 4th Amend.
Convicted in MN state court
State court held that window observation NOT a
search
MN appeals court ruled drug business waived 4th
amend protections
MN Supreme Court reversed:
"the defendants had a legitimate expectation of privacy in the
invaded place and that the officer's observation constituted an
unreasonable search"
Question to US SC:
Do household visitors have the same protection against
unreasonable searches and seizures as do residents or
overnight social guests?
NO:
defendant must demonstrate that he personally has an
expectation of privacy in the place searched, and that
his expectation is reasonable
Where can you expect your 4th Amend right to privacy?
"the right of people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures shall not be violated..."
Prior to arrest:
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Does it extend to your car? (sort of, but less than before)
Does it protect passengers in your car? (not much)
Does it extend to your luggage in transit (no, not much)
Does it extend to "guests" in your house? (yes, sort of)
Does it extend to visitors to your house? (no)
Does it prevent police from looking through your window?
Does it prevent surgery to remove evidence (yes)
• Does it prevent breath tests (no)
• Does it prevent photos of your yard from sky (no)
If no warrant:
stop and frisk if “reasonable suspicion”
(not probable cause)
if consent given. by whom, your roommate? (yes)
what can be "searched" after arrest
o you, under your clothing
o things in plain view
o things and places under your immediate control
(room, not house, parked car?)
3. Roberts Court (2005- today)
Selective Incorporation, Conclusion
Palko v. CT (1937), an example of slow process....
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Palko killed two police officers
charged w/ 1st degree murder
Palko convicted of murder, 2nd degree
CT law allowed state to appeal for 2nd trial
CT appealed
Palko re-tried.
Convicted of 1st degree murder
Palko appeals to USSC, saying 14th Amd -> 5th Amd
5th Amendment, Double Jeopardy
Court:
NO.
Some protections found in Bill of Rights are absorbed into
the concept of Due Process (via 14th Amend) only because
they are so fundamental to our notions of liberty and
justice that they can't be denied by the states w/o
compelling state interest (to ltd liberty).
"Selective incorporation" =
Court slowly answering questions about which rights are
so fundamental that NO STATE shall deny
Palko decision (1939) not over ruled until 1969.
What Rights Not Incorporated?:
2nd Amendment Right to Bear Arms (2010)
3rd Amendment Protection Against Quartering
5th Amendment Right to Grand Jury Indictment
7th Amendment Right to Civil Jury Trial
8th Amendment Protection Against Excess fines/bail
Privacy? (Friday discussion)