• Amendment IV
– Colonial background
• Writs of Assistance - generally open-ended, and
required all parties to support the officer to whom it
was issued. Its normal use was is in support of
customs inspections. The writ authorized an officer
to search any person or place and did not expire.
• General warrants – “dragnet” searches
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• Amendment IV
• Warrant issuing power – Coolidge v N.H., 1971
– Limited to judicial branch officials
• Probable cause – Brinegar v U.S., 1949
– Issue of anonymous or confidential sources
– Totality of circumstance test – Illinois v Gates, 1983;
Alabama v White, 1990 (tip + independent
verification = justification for a “Terry stop”)
• “Particularity” requirement
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Exceptions to the Warrant Requirement
•
•
Sovereign borders
Place Exceptions:
– public transport – airports, train stations, subway entrances
– Schools
– Prisons
– Open fields
– Cars – including closed containers on basis of probable cause
– Fixed checkpoints – brief detention for I.D. or sobriety test
– Crime scene investigations
• Consent – joint occupancy rule for houses/apartments
• Fleeing felon/hot pursuit
• Incident to a lawful arrest
• Plain sight
• Evanescent evidence
• Public safety “Terry searches”/ stop and frisk – reasonable
suspicion, rather than probable cause standard
• Mandatory drug testing [limited for criminal prosecutions in
Ferguson v City of Charleston, 2001]
• Amendment IV
– Exclusionary Rule – judicially-created remedy for 4th Am.
violations
• Weeks v U.S., 1914
• Deterrence to police misconduct
– Incorporation of 4th Am. into “due process” clause of 14th
• Wolf v Colorado, 1949 –
– 4th Am, YES; exclusionary rule, NO
– Silver platter doctrine/practice
• Mapp v Ohio, 1961
– Good faith exception to exclusionary rule
• U.S. v Leon, Mass. v Sheppard, 1984
• Arizona v Evans, 1995
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• Amendment IV
– Challenges of technology
• Wiretaps, etc. (Katz v U.S., 1967)
• Thermal imaging (Kyllo v U.S., 2000), etc.
– Reasonable expectation of privacy/zone of privacy
– But note – the issue is the absence of a warrant!
• Title III of the Federal Omnibus Crime Control and
Safe Streets Act of 1968
– Prohibits electronic surveillance w/o judicial
authorization based on probable cause
– Permits warrantless surveillance for 48 hours in
emergency situations posing immediate danger of
death, conspiracies threatening national security
or characteristic of organized crime OR when one
party consents
– Left intact President’s authority to obtain foreign
intelligence, but does not extend to domestic
security cases
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• Amendment IV
– Foreign Intelligence Surveillance Act of 1978 (FISA)
– Special courts (FISA Court and FISA Court of
Review) to issue warrants
» meet in secret
» don’t publish decisions
» allow only gov’t to appear before them
– Warrants require evidence of criminal activity
when involving citizens, resident aliens, domestic
organizations believed to be operating on behalf
of foreign governments
– Requires on showing of probable cause for foreign
power or individual believed to be agent of foreign
power
– Authorizes President to approve surveillance w/o
a court order to acquire transmissions between
foreign powers
• USA Patriot Act of 2001
– Roving wiretaps
– Expanded authority to order phone companies and
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Internet providers to provide information
– Authorized “sneak and peek” warrants
Administrative Search Warrants
• Administrative Searches Still Presuppose Warrants
– BUT no need to establish probable cause
– Merely a rational program of inspections for enforcement
arising from authorizing statute
• Additional Exceptions to Warrant Requirement
– Pervasively regulated industries
– Caseworker home visits
• §1983 civil suits for 4th, 5th, and 8th Am. violations by governmen
agents
– qualified immunity doctrine
– plaintiff must show that government agent knowingly violated
law or acted with reckless disregard for constitutional rights
Rights of the Accused in Criminal Justice System
• 5th Amendment
– Defendant’s Pre-Trial Rights:
• grand jury indictment [never incorporated]
• no self-incrimination (Miranda Rights) --exclusionary
rule applies here too
– impeach defendant’s credibility – Harris v N.Y.,
1971
– public safety exception – N.Y. v Quarles, 1984
– inevitable discovery exception – Nix v Williams,
1984
– harmless error analysis – Arizona v Fulminante,
1991
Rights of the Accused in Criminal Justice System
• 5th Amendment
– Defendant’s Pre-Trial Rights:
• no self-incrimination (Miranda Rights)
• fending off Congressional attempt to further limit
Miranda warnings by eliminating “warning” provision
[Dickerson v U.S., 2000]
– 18 USC § 3501 – admissibility of confessions
hinges solely on demonstrated voluntariness w/o
regard to a warning of 5th Am. right having been
given
– Congress may not overturn a S. Ct. standard of
constitutional interpretation by legislation
Rights of the Accused in Criminal Justice System
• 5th Amendment
– Post-Trial Right: no double jeopardy
• A 2nd prosecution for the same act by the same level of government
after final judgment in an earlier trial.
• Double jeopardy is NOT:
– A retrial after a mistrial or after successful appeal by the state
from error in the original trial
– Prosecutions of separate crimes which may arise from the same
act, i.e., possession & intent to deliver or murder and conspiracy
to commit murder
– Separate trials under separate indictments for separate crimes
arising from the same act by DIFFERENT levels of
government, i.e., both state and federal
– Criminal prosecution and civil litigation arising from the act
Rights of the Accused in Criminal Justice System
• 5th Amendment
– Post-Trial Right: no double jeopardy
– special case of sexual predators confinement and
registration [Kansas v Hendricks, 1997]
• 6th Amendment: Criminal Court Procedures
– Speedy/public trial v plea bargaining
– Myth v reality: scarce judicial resources v minimizing
uncertainty of trial outcome
– As a prosecutorial bargaining chip – Bordenkircher v
Hayes, 1978
• 6th Amendment: Criminal Court Procedures
– Impartial jury in district where crime occurred
• issues related to impartiality include
– pre-trial publicity
– jury selection process, e.g., use of peremptory challenges
based on race [Batson v KY, 1986 ] or gender [Georgia v
McCullom, 1992]; J.E.B. v Alabama ex rel. T.B., 1994
extended ban to defense
– size of jury [Ballew v Georgia, 1978, set the minimum at 6
for non-capital cases]
– unanimity rule [Johnson v LA, 1972, upheld nonunanimous verdicts in non-capital cases, but Burch v LA,
1979, required unanimity in 6 member juries]
• acceptable responses to combating bias include sequestering
of jury, change of venue, BUT NOT gag orders on the press
[Nebraska Press Assoc. v Stuart, 1976] nor closing of trials
[Richmond News-papers v VA, 1980] unless there are no other
options for insuring fairness
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• 6th Amendment: Criminal Court Procedures
– Impartial jury in district where crime occurred
• Special case of juvenile proceedings
– most procedural due process rights are present in
juvenile context [right to counsel, freedom from selfincrimination, cross-examination]
– Trial by jury is NOT required
– Pre-trial detention programs OK but
– Capital punishment is NOT for those under 16 at time
crime committed
– Confronted by hostile witnesses
• The special case of minor victims of abuse
– Compulsory process for securing favorable witnesses
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• 6th Amendment: Criminal Court Procedures
– Assistance of legal counsel
• Powell v Alabama, 1932 [essential to due process in
capital cases]: comity, incorporation
• Gideon v Wainwright, 1963 [extended to non-capital
felonies]
• Argersinger v Hamilton, 1972 – Scott v Illinois, 1979
[extended to misdemeanors involving jail sentences]
• Douglas v CA, 1963 – PA v Finley, 1987 [extended to
appeals process, but limited to one appeal]
• Strickland v WA, 1984 – competence of appointed
counsel – burden of proof on appellant to show
– counsel was incompetent
– it would have made a difference
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• 8th Amendment: Punishment Phase
– No “excessive” bail [never incorporated]
– No “excessive” fines
– No “cruel/unusual” punishment
• Proportionality of punishment
– Mandatory life sentences for certain crimes and habitual
offenders
» Rummel v Estelle, 1980 – upheld “a persistent
offender” law which resulted in long jail sentence for a
relatively minor felony
» Harmelin v MI, 1991 – upheld life for possession of
650 grams of cocaine
– Long sentences for “minor” crimes under 3-strikes law
» Ewing v CA and Lockyer v Andrade, 2003
» 25 years and 50 years w/o parole for 3 golf clubs and
$150 worth of videos respectively
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• Death penalty jurisprudence
• Furman v GA, 1972
– Overturned a 1 year old precedent [McGautha v CA]
– Per curiam decision; 9 separate opinions
– Did NOT declare death penalty unconstitutional per se
– Erratic, unpredictable, application of death v life
sentences by unfettered juries made it unconstitutional
• States’ response
– Mandatory death sentences for certain crimes
– Bifurcated trials with separate guilt and penalty
phases [Gregg v GA, 1976]
» mitigating circumstances
» aggravating circumstances
• Court’s response: death penalty jurisprudence
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