Explain the 2nd amendment (chapter 20)
a.

Militia
i. The ability of the State to call upon its people to defend itself. Not a standing army but a called upon
army/militia
ii. NOT the National Guard
In 1982 the Senate Judiciary Committee Sub-committee on the Constitution stated in Senate Document 2807:
"That the National Guard is not the 'Militia' referred to in the Second Amendment is even clearer today. Congress had organized
the National Guard under its power to 'raise and support armies' and not its power to 'Provide for organizing, arming and
disciplining the militia.' The modern National Guard was specifically intended to avoid status as the constitutional militia, a
distinction recognized by 10 U.S.C. 311(a).
Title 32 U.S.C. in July 1918 completely altered the definition of the militia and its service, who controls it and what it is. The
difference between the National Guard and Regular Army was swept away, and became a personnel pay folder classification only,
thus nationalizing the entire National Guard into the Regular Standing Armies of the United States."
The "militia" was provided for in Section 10 of the United States Code (often abbreviated USC). The Code is the list of all
the laws that are written by the federal government. Section 10 USC 311 reads:
"All able-bodied males at least 17 years of age…and under 45 years of age who are or have made a declaration to become a
citizen of the United States." Additionally, another provision allows for a "reserve militia" (as opposed to the "ready
militia" described above), that includes women, children and the elderly.
b.
Bear Arms
i. United States v. Miller (1939)
1. Upheld National Firearms Act of 1934
a. Stated you could not transport sawed-off shotguns, machine guns, or silencers across
State lines, unless the transporter got a license with the Treasury Department and
paid the $200 license tax.
b. Courts didn’t see the need of those weapons in “the preservation . . . of a wellregulated militia.”
c. Miller never showed up to the Supreme Court hearing so he never presented his side
ii. Brady Law




The Brady law is a federal law (18 USC 922(t)) requiring instant background checks on
prospective gun buyers. When a firearms dealer sells a handgun, shotgun, or long rifle to a
prospective buyer, a background check must be performed on that person in order to ascertain
whether or not that person is prohibited from owning a firearm due to past criminal actions.
2,356,376 background checks were performed the first year the Brady law took effect, at a cost of
about $24 dollars per check. Of those checks, only four prosecutions were initiated. That's 14.1
million dollars per prosecution. Plus, local law enforcement agencies had to take officers off of the
streets, and put them behind desks to process applications and perform background checks. Do you
think this had any tangible effect on reducing crime?
Brady Law: http://www.bradycampaign.org/
NRA: http://home.nra.org/#/nraorg
iii. Nebraska Constitution Article I, Section 1
1. All persons are by nature free and independent, and have certain inherent and inalienable rights;
among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for
security or defense of self, family, home, and others, and for lawful common defense, hunting,
recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by
the state or any subdivision thereof. To secure these rights, and the protection of property,
governments are instituted among people, deriving their just powers from the consent of the
governed.
2. http://www.handgunlaw.us/states/nebraska.pdf
Code Section
28-1201, (Chapter 28 – 1200s)
Illegal Arms
Machine gun; short rifle or short shotgun; defaced firearm; stolen firearm
Waiting Period
None
1. Under 18: revolver, pistol, or any short-barreled hand firearm (without supervision); 2.
Who May Not Own
Convicted felon/fugitive from justice: barrel less than 18 inches
Law Prohibiting Firearms On or
Misdemeanor. 28-1204.04
Near School Grounds
VIDEOS:
http://www.youtube.com/watch?v=7RgLEGibyXs (22 minutes long – History Channel)
http://www.youtube.com/watch?v=mbq--pFYcLw (Ron Paul)
http://www.youtube.com/watch?v=joBMq6b4MmE&feature=related (Penn & Teller)
http://www.youtube.com/watch?v=P-6qLC7MkvA&feature=channel (GREAT AD!!!)
http://www.youtube.com/watch?v=-ExC7fE1LaY&NR=1 (911 Caller defends herself)
http://www.youtube.com/watch?v=z-MvfDW8MOk&feature=related (911 Caller again)
http://www.youtube.com/watch?v=QTuBsB_Q6oY&NR=1 (Man defends himself!!!!!)
http://www.youtube.com/watch?v=lN7lBBbn9l4&feature=related (Ex-boxer defends)
http://www.youtube.com/watch?v=DHZNMR3k8XQ (Criminals for gun control)
2.
Explain the 3rd amendment
a.
b.
3.
Quartering of troops (illegal)
We have Security of Home and Person
Explain the 4th amendment (chapter 20)
a.
Define search warrant
i. Court order authorizing a search
b.
Illegal Search and Seizure
i. Define writs of assistance
1. Blanket search warrants used by the British /// ILLEGAL
ii. Define probable cause
 Reasonable suspicion of a crime
1. Florida v. J.L. (2000)
a. Miami Police got an anonymous tip about a teenager with a gun at a bus stop. They found,
searched, and arrested the teen but did not have a warrant.
b. Supreme Court found this unconstitutional (no warrant or probable cause)
2. Minnesota v. Carter (1999)
a. Minnesota cop saw drug dealers bagging cocaine through a window. He arrested the
dealers
b. Legal because it was “in plain view”
3. Lidster v. Illinois (2004)
a. Police set up a road block to gather information about a hit and run accident. Lidster was
questioned and alcohol was found on his breath. He failed sobriety tests and was charged
with drunk driving.
b. Constitutional. Lawyers argued the police had no reason (probable cause) to question
Lidster in the first place. He lost and then lost again. Sorry, just bad luck I guess.
4. Horton v. California (1990)
a. Cops entered Horton’s house with a warrant to look for stolen jewelry. Found illegal
weapons instead and arrested Horton.
b. Constitutional because weapons were “in plain view”
5. California v. Greenwood (1988)
a. Constitutional for cops to search your trash once it is set out. You give up your property
rights at that point. You have no “reasonable expectation of privacy”
b. DUMPSTER DIVING IS OK!!!!!!!!!
6.
Florida v. Riley (1989)
a.
b.
iii. Arrest
1.
The Supreme Court in a 5-4 vote reversed the decision arguing that the accused did not
have a reasonable expectation that the greenhouse was protected from observation from a
helicopter, and decided that therefore the helicopter surveillance did not constitute a search
under the Fourth Amendment. (Plain view)
Arrest is the seizure of a person
a. Minnesota v. Dickerson (1989)
i. Facts of the Case: On November 9, 1989, while exiting an apartment building
with a history of cocaine trafficking, Timothy Dickerson spotted police officers
and turned to walk in the opposite direction. In response, the officers commanded
Dickerson to stop and proceeded to frisk him. An officer discovered a lump in
Dickerson's jacket pocket, and, upon further tactile investigation, formed the
belief that it was cocaine. The officer reached into Dickerson's pocket and
confirmed that the lump was in fact a small bag of cocaine. Consequently,
Dickerson was charged with possession of a controlled substance. He requested
that the cocaine be excluded from evidence, but the trial court denied his request
and he was found guilty. Minnesota Court of Appeals reversed, and the State
Supreme Court affirmed the appellate court's decision.
ii. Question: When a police officer detects contraband through his or her sense of
touch during a protective patdown search, does the Fourth Amendment permit its
seizure and subsequent introduction into evidence?
1.
Was the police officer who frisked Dickerson adhering to the Fourth
Amendment when he formed the belief, through his sense of touch,
that the lump in Dickerson's jacket pocket was cocaine?
iii. Conclusion: Yes and No. In a unanimous opinion authored by Justice Byron R.
White, the Court recalled that a police officer may seize contraband when it is in
plain sight, and "its incriminating character is immediately apparent". It held that
instances in which an officer uses the sense of sight to discover illegal goods are
analogous (similar in nature) to those involving the sense of touch. The Court
also reasoned that the tactile detection of contraband during a lawful pat-down
search does not constitute any further invasion of privacy, therefore warrantless
seizure was permissible.
1. The Court also concluded that the police officer frisking Dickerson
stepped outside the boundaries outlined in Terry v. Ohio which requires
a protective pat-down search to involve only what is necessary for the
detection of weapons. In fact the officer was already aware that
Dickerson's jacket pocket did not contain a weapon, when he detected
the cocaine through further tactile investigation.
2. COCAINE WAS FOUND INADMISSABLE IN A COURT OF LAW
b.
Illinois v. Wardlow (2000)
i. Police were patrolling an area of Chicago when Wardlow bolted for no reason.
Police chased him down and found an illegal weapon on him. They arrested
Wardlow.
ii. Court found the arrest constitutional because Wardlow bolting was “common
sense” grounds on which to believe he was involved in some criminal activity.
iv. Define exclusionary rule
 Evidence obtained illegally cannot be used in court
 Police: To enforce the law you must obey the law.
1. Weeks v. United States (1914)
Facts of the Case: 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 private possessions.
Question: Did the search and seizure of Weeks' home violate the Fourth Amendment?
Conclusion: In a unanimous decision, the Court held that the seizure of items from Weeks' residence
directly violated his constitutional rights. The Court also held that the government's refusal to return
Weeks' possessions violated the Fourth Amendment. To allow private documents to be seized and then
held as evidence against citizens would have meant that the protection of the Fourth Amendment
declaring the right to be secure against such searches and seizures would be of no value whatsoever.
This was the first application of what eventually became known as the "exclusionary rule." – Federal
Gov’t Only
2. Mapp v. Ohio (1961)
a. Cleveland police entered Mapp’s home without a warrant looking for gambling evidence.
They found nothing but did find obscene materials. He was arrested.
b. Courts found this unconstitutional
i. States cannot infringe on your rights either (14th)
3. Nix v. Williams (1984)
a. CASE: 10-year old girl disappeared from a Des Moines YMCA. A witness reported
having seen Robert Anthony Williams leaving the building carrying a “big bundle.”
Police arrested him 2 days later. They were told not to “conduct any interrogation.”
During interrogation, police convinced Williams to admit to the location of the body.
b. “inevitable discovery” exception
i. If the evidence would have turned up eventually then it is OK.
c. Courts found this constitutional
4. United States v. Leon (1984)
a. Federal agents entered home with a faulty search warrant for illicit drugs.
b. Court upheld conviction because it said, “When an officer acting with objective good faith
has obtained a search warrant . . . and acted within its scope . . . there is nothing to deter.”
5. Arizona v. Evans (1995)
a. Police used an erroneous computer printout which showed Evans had outstanding warrants
for his arrest. A search yielded illegal material.
b. Constitutional because cops acted in “good faith” it was a faulty report from the clerk
6. Maryland v. Garrison (1987)
Arrest after the seizure of drugs in a 3rd story apartment. The problem, the wrong
apartment.
b. Constitutional because there is a little leeway for “honest mistakes”
7. United States v. Johnson (1999) – “Knock and Talk”
a. Police knock on the door in an attempt to persuade the occupants to give them permission
to enter. If the consent is forthcoming, they enter and interview the occupants; if not, they
try to see from their vantage point at the door whether drugs or drug paraphernalia are in
plain view.
b. CASE: 4 Policemen, dressed in plain clothing, entered an apartment building and “heard”
one of the apartments was “busy.” They went to the door and before they had time to
knock the door flew open. They quickly looked in and yelled police. People in the room
scrambled and one of the policemen “claimed” to see somebody throw a crack pipe on the
floor. A search of Johnson, which he protested, produced weapons and drugs.
c. COURT: Police acted unconstitutionally because the court did not believe the crack pipe
observation. And even so, it did not warrant probable cause to search Johnson. Anything
obtained after that was excluded.
v. Automobiles
http://www.youtube.com/watch?v=nRcDsFZLIFc
http://www.youtube.com/watch?v=nyokKFIecIo
1. Carroll v. United States (1925)
a. Federal prohibition officers arranged an undercover buy of liquor from George Carroll, an
illicit dealer under investigation, but the transaction was not completed. They later saw
Carroll and one Kiro driving on the highway from Detroit to Grand Rapids, which they
regularly patrolled. They gave chase, pulled them over, and searched the car, finding
illegal liquor behind the rear seat. The National Prohibition Act provided that officers
could make warrantless searches of vehicles, boats, or airplanes when they had reason to
believe illegal liquor was being transported.
b. Upheld the warrantless search of a car, noting that probable cause existed and the mobility
of the automobile made it impracticable to get a search warrant. The decision rested on the
distinction between stationary structures and movable objects/vehicles. Not only is an
automobile movable while stationary structures are not, there is also less of an expectation
of privacy in automobiles.
c. Arresting officer better show probable cause
2. Schneckloth v. Bustamonte (1973)
a. Arresting Officer James Rand made a traffic stop of a car with one burned out head light
and a non-working license plate light. The car had six occupants. Only one, Joe Alcala
who was not the driver, produced a drivers license and told Rand the car belonged to his
brother. When asked by Rand if he could search the car, Alcala consented. The consent
was described as congenial. In the back seat of the car, Officer Rand found three crumpled
checks which had been stolen from a car wash. The driver, Robert Bustamonte was
arrested and convicted of possessing a stolen check. Bustamonte challenged his arrest,
arguing that while he had consented voluntarily, he had not been informed of his right not
to consent to the search.
b. In an opinion written by Justice Stewart, the Supreme Court ruled that consent to search is
valid as long as it is voluntarily given. Stewart held that police may not use threats or
coercion to obtain consent, but that they need not inform suspects of their right not to
consent to a search.
c. Justice Thurgood Marshall, in a dissenting opinion, wrote "In the final analysis, the Court
now sanctions a game of blindman's buff, in which the police always have the upper hand,
for the sake of nothing more than the convenience of the police."
3. Michigan v. Sitz (1990)
a. Court held that police can stop automobiles at roadside checkpoints to examine drivers
and passengers for signs of intoxication – even when they have no evidence to indicate
that the occupants of a particular car have been drinking.
4. California v. Acevedo (1991)
a. Overturned rulings that said police needed a warrant to search a glove compartment, a
paper bag, a piece of luggage, or other “closed container” in an automobile.
b. One clear cut rule now:
i. Whenever police lawfully stop a car, they do not need a warrant to search
anything in that vehicle that they have reason to believe holds evidence of a
crime.
ii. BUT, they must prove the “reason to believe holds evidence of a crime”
5. Florida v. Jimeno (1991)
a.
a.
b.
Question: Does a suspect's consent to a search of his vehicle extend to closed containers
found inside?
Conclusion: Yes. In a 7-to-2 decision, the Supreme Court held that the search did not
violate the Fourth Amendment's prohibition of unreasonable searches. "The touchstone of
the Fourth Amendment is reasonableness," wrote Chief Justice William H. Rehnquist in
the majority opinion. "We think it was objectively reasonable for the police to conclude
that the general consent to search respondent's car included consent to search containers
within that car which might bear drugs. A reasonable person may be expected to know that
narcotics are generally carried in some form of a container."
6.
Wyoming v. Houghton (1999)
a. Extended California v. Acevedo (1991) to include a passenger’s belongings
7.
Illinois v. Caballes (2005)
a. Police can use a drug dog to search (sniff) around the vehicle for narcotics
8.
Maryland v. Pringle (2003) “Guilt by Association”
a. PROBLEM: If police lawfully stop a car that has multiple occupants in it, and upon a
search contraband is discovered in the back, can all occupants of the car be arrested, even
though police have no reason to believe more than one person knew about the contraband
and they have no idea which person it was?
b. CASE: Police pulled over car in the middle of the night. A routine checked showed
nothing so the officer asked to search the vehicle. Driver agreed, Pringle was the front
seat passenger. The result? As the Court explained in its opinion: “The search yielded
c.
9.
$763 from the glove compartment and five plastic glassine baggies containing cocaine
from behind the back-set armrest. When the officer began the search the armrest was in the
upright position flat against the rear seat.” All 3 passengers denied knowing about the
drugs. Pringle eventually confessed, saying the drugs were his and he was going to party
to sell the drugs for money or sex.
COURT: Police acted constitutionally because the drugs were accessible to all in the car
and since nobody admitted to it, all 3 could have been arrested.
Pennsylvania v. Mimms (1997)
a. The Supreme Court held that police officers may order a driver out of a car after a lawful
stop, even in the absence of reasonable suspicion that the driver may be armed. The
distinguishing fact here is that the removal of the driver from the car permitted in Mimms
was pursuant to a lawful stop. The minimal intrusion on the individual is justified by the
special risks that accompany an officer approaching the vehicle of a potential traffic
offender.
10. Arizona v. Gant (2008-09)
a. Facts of the Case: Rodney Gant was apprehended by Arizona state police on an
outstanding warrant for driving with a suspended license. After the officers handcuffed
Gant and placed him in their squad car, they went on to search his vehicle, discovering a
handgun and a plastic bag of cocaine. At trial, Gant asked the judge to suppress the
evidence found in his vehicle because the search had been conducted without a warrant in
violation of the Fourth Amendment's prohibition of unreasonable searches and seizures.
The judge declined Gant's request, stating that the search was a direct result of Gant's
lawful arrest and therefore an exception to the general Fourth Amendment warrant
requirement. The court convicted Gant on two counts of cocaine possession.
i. The Arizona Court of Appeals reversed, holding the search unconstitutional, and
the Arizona Supreme Court agreed. The Supreme Court stated that exceptions to
the Fourth Amendment warrant requirement must be justified by concerns for
officer safety or evidence preservation. Because Gant left his vehicle voluntarily,
the court explained, the search was not directly linked to the arrest and therefore
violated the Fourth Amendment. In seeking certiorari, Arizona Attorney General
Terry Goddard argued that the Arizona Supreme Court's ruling conflicted with
the Court's precedent, as well as precedents set forth in various federal and state
courts.
b. Question: Is a search conducted by police officers after handcuffing the defendant and
securing the scene a violation of the Fourth Amendment's protection against unreasonable
searches and seizures?
c. Conclusion: Yes, under the circumstances of this case. The Supreme Court held that police
may search the vehicle of its recent occupant after his arrest only if it is reasonable to
believe that the arrestee might access the vehicle at the time of the search or that the
vehicle contains evidence of the offense of the arrest. With Justice John Paul Stevens
writing for the majority and joined by Justices Antonin G. Scalia, David H. Souter,
Clarence Thomas, and Ruth Bader Ginsburg, the Court reasoned that "warrantless searches
are per se unreasonable" and subject only to a few, very narrow exceptions. Here, Mr.
Gant was arrested for a suspended license and the narrow exceptions did not apply to his
case.
i. Justice Scalia wrote separately, concurring. Justice Samuel A. Alito dissented and
was joined by Chief Justice John G. Roberts, and Justices Anthony M. Kennedy
and Stephen G. Breyer. He argued that the majority improperly overruled its
precedent in New York v. Belton which held that "when a policeman has made a
lawful arrest… he may, as a contemporaneous incident of that arrest, search the
passenger compartment of that automobile." Justice Stephen G. Breyer also wrote
a separate dissenting opinion, where he lamented that the court could not create a
new governing rule.
d. WEBSTER: Tow and take an inventory search of the car to get around it. BUT you have
to be consistent on impounding vehicles.
vi. Drug Testing
 Federal mandatory drug tests don’t need a warrant or even probable cause
1. National Treasury Employees Union v. Von Raab (1989)
a. Drug enforcement officers of the U.S. Customs Service
2. Skinner v. Federal Railway Labor Executives Associaion (1989)
a. Railroad workers
3.
4.
Vernonia School District v. Acton (1995)
a. Oregon school forced athletes to take drug tests
b. Constitutional
i. BUT IN WASHINGTON: The decision involved athletes who sued the
Wahkiakum School District in 1999 after the district began requiring students to
undergo urine tests if they wanted to participate in sports. If the tests indicated
drug or alcohol use, the student was suspended from sports but wasn't reported to
police.
Board of Education of Pottowatomie Countie v. Earls (2002)
a. Random drug tests for anybody in competitive extracurricular activities is constitutional
Parents take issue with school drug test policy CHESTERFIELD, VA (WWBT) – In November 2010, after
caught skipping school, a Monacan High School sophomore boy was told to take a drug test. His parents were called
to campus and that day decided not to have their son drug tested. The sophomore was automatically suspended for
two weeks.
Chris and Rhea George say their son was punished for their decision and are now fighting Chesterfield County Public Schools drug
testing policy.
Chesterfield County Public School spokesman Shawn Smith says for 20 years, the school system has required students be drug
tested if there's reasonable suspicion. It's student policy and at the start of each school year parents sign the policy, agreeing to the
terms.
In the paper trail that covered their kitchen table, the George's said there was no physical proof the sophomore boy was on drugs or
took drugs the day before Thanksgiving break. That Tuesday, the George's said their son and six others skipped school and spent
the day at a nearby playground. The couple said it's where a school police officer discovered the teens.
"The officer, when they approached the kids, smelled marijuana smoke," said Rhea George.
"And the officer that did pick them up said there was no evidence that he saw of any drug use," said husband Chris George.
But the decades old Chesterfield school policy doesn't require physical evidence for a drug test. According to the Standards for
Student Conduct, a drug test is required after "reasonable suspicion" like: "bloodshot eyes, staggering, odor, agitation, or excessive
tardiness." Because of privacy issues, spokesman Shawn Smith said the school can't comment on the incident "even if the
information provided to NBC12 is incomplete or inaccurate."
At up to $45 a pop, over the last two years Chesterfield schools has tested 429 students, totaling up to $19,300 of your money. The
school system couldn't tell us the results because it requires going into student records.
"The school system wasn't interested in working with us. They just kept citing policy," said Rhea George.
"The entire attitude was if we ask your child to take a drug test for any reason you have no right to ask us why," said Chris
George.
They signed off on the test, but didn't follow through when they found out they would not get the results. Their son was
automatically suspended: two days for skipping school, 10 days for refusing the test.
The family immediately researched their options and set up a meeting the following school day to appeal the decision.
"At that time we were basically told that it would not be overturned and it could not be overturned because if he overturned it then
no kid would ever agree to take a drug test," explained Chris George.
The George's eventually paid for their son to be tested. The results were negative. His suspension was cut in half. But Rhea and
Chris George want the punishment taken off his record and the policy re-evaluated.
Henrico County Public Schools and Richmond Public Schools do not pay or require students to take a drug test.
Each school system handles drug issues on a case-by-case basis and includes parents in determining the consequences.
The Chesterfield school system says it continually evaluates all policies, but a spokesman could not tell NBC12 when or if the drug
testing policy would be reviewed by the school board.
vii. Schools
1. New Jersey v. T.L.O (1985)
a.
2 14 yr. old girls got caught smoking in the bathroom. Teacher took them to the Assistant
Principle’s office where one girl admitted to the crime and the other (T.L.O) denied
smoking at all. Assistant Principle opened T.L.O.’s purse and found a pack of cigarettes
and rolling papers. A further search yielded marijuana and other drug paraphernalia, a
large quantity of money, a list of students that appeared to owe her money, and 2 letters
that implicated her in dealing. Police and mother were called. T.L.O. admitted to selling
drugs.
b. the court agreed with the School that “a warrantless search by a school official does not
violate the Fourth Amendment so long as the official "has reasonable grounds to believe
that a student possesses evidence of illegal activity or activity that would interfere with
school discipline and order."
2. Safford Unified School District v. Redding (2009)
Facts of the Case: Savana Redding, an eighth grader at Safford Middle School, was strip-searched by
school officials on the basis of a tip by another student that Ms. Redding might have ibuprofen on her
person in violation of school policy. Ms. Redding subsequently filed suit against the school district and
the school officials responsible for the search in the District Court for the District of Arizona. She
alleged her Fourth Amendment right to be free of unreasonable search and seizure was violated. The
district court granted the defendants' motion for summary judgment and dismissed the case. On the
initial appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed. However, on rehearing before
the entire court, the court of appeals held that Ms. Redding's Fourth Amendment right to be free of
unreasonable search and seizure was violated. It reasoned that the strip search was not justified nor was
the scope of intrusion reasonably related to the circumstances.
Question:
1) Does the Fourth Amendment prohibit school officials from strip searching students suspected of
possessing drugs in violation of school policy?
2) Are school officials individually liable for damages in a lawsuit filed under 42 U.S.C Section 1983?
Conclusion: 1)Sometimes, fact dependent. 2) No. The Supreme Court held that Savanna's Fourth
Amendment rights were violated when school officials searched her underwear for non-prescription
painkillers. With David H. Souter writing for the majority and joined by Chief Justice John G. Roberts,
and Justices Antonin G. Scalia, Anthony M. Kennedy, Stephen G. Breyer, and Samuel A. Alito, and in
part by Justices John Paul Stevens and Ruth Bader Ginsburg, the Court reiterated that, based on a
reasonable suspicion, search measures used by school officials to root out contraband must be
"reasonably related to the objectives of the search and not excessively intrusive in light of the age and
sex of the student and the nature of the infraction." Here, school officials did not have sufficient
suspicion to warrant extending the search of Savanna to her underwear. The Court also held that the
implicated school administrators were not personally liable because "clearly established law [did] not
show that the search violated the Fourth Amendment." It reasoned that lower court decisions were
disparate enough to have warranted doubt about the scope of a student's Fourth Amendment right.
Justice Stevens wrote separately, concurring in part and dissenting in part, and was joined by Justice
Ginsburg. He agreed that the strip search was unconstitutional, but disagreed that the school
administrators retained immunity. He stated that "[i]t does not require a constitutional scholar to
conclude that a nude search of a 13-year old child is an invasion of constitutional rights of some
magnitude." Justice Ginsburg also wrote a separate concurring opinion, largely agreeing with Justice
Stevens point of dissent. Justice Clarence Thomas concurred in the judgment in part and dissented in
part. He agreed with the majority that the school administrators were qualifiedly immune to prosecution.
However, he argued that the judiciary should not meddle with decisions school administrators make that
are in the interest of keeping their schools safe.
viii. Explain wiretapping & other technology things
 Wiretapping, electronic eavesdropping, videotaping, and other more sophisticated means of “bugging”
are now used
1. Olmstead v. United States (1928)
a. Federal agents tapped a Seattle bootlegger’s phone without a warrant
b. Gathered information (evidence) for months
c. Constitutional because cops tapped the phone lines outside of his residence and office
2. Katz v. United States (1967)
a. A gambler was using a public phone booth to place illegal bets. Police tapped the phone
booth without a warrant.
b. Unconstitutional (overturned Olmstead v. United States)
3. United States v. Knotts (1983)
a. Police attached a “beeper” or a tracking device in a container of chloroform and put it in
the seller’s car. The buyer took the container of chloroform and brought it home. Police
followed him and made the arrest based on evidence found at the residence.
b. CONSTITUTIONAL: The defendant “had no reasonable expectation of privacy in his
movements from one place to another” using the public roads. Since the device had been
inserted before the drum came in the possession of the conspirators, no trespass to their
effects had occurred when the device was installed. Police must enter immediately. If
delay, they must get a warrant.
4. Kyllo v. United States (2001)
a. Police used the Agema Thermovision 210 thermal imager to peak into a suspected drug
dealer’s home. They searched for heat generated by lamps used for growing marijuana.
b. As the Court observed: “The scan showed that the roof over the garage and side wall of
[Kyllo's] house were relatively hot compared to the rest of the home and substantially
warmer than neighboring homes in the triplex.” After obtaining a search warrant based, in
part, on these heat measurements, supplemented by utility bills and some informant
information, the agents found an indoor growing operation involving more than 100
plants.
c.
In rejecting the “mechanical interpretation” of the Fourth Amendment by permitting law
enforcement to use advanced technology without a warrant unless there had been a
physical invasion of one's home, the Court observed that such a diminishing of our
expectations of privacy “would leave the homeowner at the mercy of advancing
technology-including imaging technology that would discern all human activity in the
home” without entering it. The Court observed that while the technique used in the Kyllo
case was “relatively crude,” it also stressed that “the rule we adopt must take account of
more sophisticated systems that are already in use or in development.”
ix. Other Cases:
1. Skurtenis v. Jones (2000) – Strip Searches
a. Sandy Skurstenis was arrested for driving under the influence of alcohol. At the time of
the arrest, the officers found a handgun in the floorboard of her car, for which she had an
expired permit. Before placing her in a holding cell at the stationhouse, a female officer,
pursuant to a policy mandating such searches of all inmates, took her aside and asked her
to strip down and to squat and cough. After an overnight stay, the detainee was taken to
the infirmary where a male nurse examined her cranial and pubic hair for lice.
b. Constitutional
2. Ybarra v. Illinois (1979) – Guilt by Association
a. Police had a warrant for a tavern and its owner. When police arrived they searched
everybody in the tavern. Ybarra was a customer and had bags of heroin on him and was
arrested.
b. sUnconstitutional = Police did not have a warrant for Ybarra, just the tavern
3. Hester v. United States – Open Fields
a. In a prosecution for concealing spirits, admission of testimony of revenue officers as to
finding moonshine whiskey in a broken jug and other vessels near the house where the
defendant resided and as to suspicious occurrences in that vicinity at the time of their visit,
held not violative of the Fourth or Fifth Amendments, even though the witnesses held no
warrant and were trespassers on the land, the matters attested being merely acts and
disclosures of defendant and his associates outside the house. P. 265 U. S. 58.
b. The protection accorded by the Fourth Amendment to the people in their "persons, houses,
papers, and effects," does not extend to open fields
4. Griffin v. Wisconsin – Probation Individuals
a. The warrantless search of petitioner's residence was "reasonable" within the meaning of
the Fourth Amendment because it was conducted pursuant to a regulation that is itself a
reasonable response to the "special needs" of a probation system.
i. Supervision of probationers is a "special need" of the State that may justify
departures from the usual warrant and probable cause requirements. Supervision
is necessary to ensure that probation restrictions are in fact observed, that the
probation serves as a genuine rehabilitation period, and that the community is not
harmed by the probationer's being at large.
ii. The search regulation is valid because the "special needs" of Wisconsin's
probation system make the warrant requirement impracticable and justify
replacement of the probable cause standard with the regulation's "reasonable
grounds" standard. It is reasonable to dispense with the warrant requirement here,
since such a requirement
x. DNA- http://www.denverda.org/DNA/Surreptitious_Collection_and_Abandoned_DNA_Cases.htm
1. Commonwealth v. Rice (2004)
2. People v. Ayler (2003)
3. State v. Christian (2006)
4. State v. Athan (2007)
5. Commonwealth v. Cabral (2007)
6. People v. Laudenberg (2008)
7. Pharr v. Commonwealth (2007)
8. State v. Galloway and Hoesly (2005)
xi. Other Cases:
1. http://www.flexyourrights.org/busted
2. Florida v. Bostick (1991) – Investigatory Stops and Detentions
Facts of the Case: In Broward County, Florida, Sheriff's Department officers regularly boarded buses
during stops to ask passenger for permission to search their luggage. Terrance Bostick, a passenger, was
questioned by two officers who sought permission to search his belongings and advised him of his right
to refuse. After obtaining Bostick's permission, the officers searched his bags, found cocaine, and
arrested him on drug trafficking charges. Bostick filed a motion to suppress the evidence on the ground
that it was illegally obtained, but the trial court denied the motion. Following an affirmance and
certification from the Florida Court of Appeals, the State Supreme Court held that the bus searches were
per se unconstitutional because police did not afford passengers the opportunity to "leave the bus" in
order to avoid questioning. Florida appealed and the Supreme Court granted certiorari.
Question: Is the acquisition of evidence during random bus searches, conducted pursuant to passengers'
consent, a per se violation of the Fourth Amendment's protection against unconstitutional search and
seizure?
Conclusion: No. The Court, in a 6-to-3 decision, noted that when deciding if a search request is overly
coercive, within a confined space such as a bus, one must not look at whether a party felt "free to leave,"
but whether a party felt free to decline or terminate the search encounter. The Court held that in the
absence of intimidation or harassment, Bostick could have refused the search request. Moreover, the
fact that he knew the search would produce contraband had no bearing on whether his consent was
voluntarily obtained. The test of whether a "reasonable person" felt free to decline or terminate a search
presupposes his or her innocence.
3. Terry v. Ohio (1968)- Stop and Frisk Rule
Facts of the Case: Terry and two other men were observed by a plain clothes policeman in what the
officer believed to be "casing a job, a stick-up." The officer stopped and frisked the three men, and
found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to
three years in jail.
Question: Was the search and seizure of Terry and the other men in violation of the Fourth
Amendment?
Conclusion: In an 8-to-1 decision, the Court held that the search undertaken by the officer was
reasonable under the Fourth Amendment and that the weapons seized could be introduced into evidence
against Terry. Attempting to focus narrowly on the facts of this particular case, the Court found that the
officer acted on more than a "hunch" and that "a reasonably prudent man would have been warranted in
believing [Terry] was armed and thus presented a threat to the officer's safety while he was investigating
his suspicious behavior." The Court found that the searches undertaken were limited in scope and
designed to protect the officer's safety incident to the investigation.
xii. Facebook
1. http://www.kjrh.com/dpp/news/local_news/facebook-helps-local-police-make-arrests
2. http://www.huffingtonpost.com/2010/08/16/arrested-over-facebookpo_n_683160.html#s127052&title=undefined
3. http://www.naplesnews.com/news/2011/feb/03/facebook-bully-cyberstalking-arrest-student-death/
4. http://abclocal.go.com/wls/story?section=news/local&id=5890815
5. http://www.opposingviews.com/i/facebook-chat-leads-to-arrests-in-new-jersey-school-threat
6. http://www.cbsnews.com/stories/2011/01/07/national/main7224468.shtml
45 minute video / BUSTED: The Citizen's Guide to Surviving Police Encounters
http://www.youtube.com/watch?v=yqMjMPlXzdA