Kellen Wright Model Lesson Plan: Search & Seizure Opinion Poll Time: 50 minutes I. II. III. Goals a. Students will get an overview of Federal and Washington State constitutional law relating to search and seizure b. Students will understand the balancing of privacy and security under Federal and Washington State constitutional law c. Students will understand how Federal constitutional protections differ from Washington State’s constitutional protections d. Students will articulate their thoughts about the proper balance between the need for privacy protections and the need for security Objectives a. Knowledge objectives - as a result of this lesson, students will be able to understand: i. The different “layers” of Federal and Washington State constitutional protection ii. How Federal and Washington State constitutional protections differ, and how these differences manifest themselves in concrete cases iii. That these are cases that require a balancing of important rights, and that there is no easy way to determine the proper balance b. Skill Objectives – as a result of this lesson, students will be better able to: i. Article their opinions, and make cogent and convincing arguments in support of their position ii. Critically evaluate their arguments, and the arguments of their classmates c. Attitudinal Objectives – as a result of this lesson, students will feel: i. Confident that they can publically state and support their opinion ii. That they better understand the reasoning behind why the law is the way it is, and that law is not merely arbitrary enactments by those in authority iii. That they have important rights protected by the Federal and Washington State constitutions Classroom Methods a. Play brief video about the origins and importance of the 4th Amendment located here: http://www.time.com/time/video/player/0,32068,1027506447001_2080296,00.ht ml (note: the relevant portion of the video runs from 0:00 - 3:45). b. Present brief PowerPoint presentation (see below) to orient students on the concepts of Federal and State constitutions, and how they interact. Show the 4th Amendment to the US Constitution, and Article 1 Section 7 of the Washington State Constitution. Allow 5 minutes for presentation. c. Pass out materials for opinion poll (see below). Explain that students should complete the opinion poll hand out, and will then be asked to move around the room based on their answers to the questions. Explain that they should not answer the questions on the basis of what they think the law is, but instead should base IV. their answers on what they feel is the proper answer. There are no right or wrong answers. Allow 5 minutes for students to fill out their opinion polls. d. After students have finished filling out their handouts, have them move around the room to stand under the sign that indicates how they answered (i.e. if they answered ‘Strongly Agree’ then have them stand under that sign). Next, ask one or two students in each category to explain why they selected the answer that they did. Save the ‘Undecided’ category for last, and then ask students who were undecided if hearing their fellow students persuaded them one way or the other. Record the results on the whiteboard, or on poster-board. Allow 5 minutes for discussion of each question – though do not hesitate to allow more time if the students are having a productive discussion. e. After students have finished discussing each question, reveal the PowerPoint slide that discloses the current state of the law under both the Federal and the Washington State constitutions. If there are differences, explain the reasons why there are differences between the two constitutions. Ask student if they think the law should be changed, and, if so, how it should be changed. Allow about 5 minutes for explanation and discussion. f. Briefly debrief the activity, focusing student's attention on key takeaways from the exercise. Ask students which "level" of constitutional protection they believe is more appropriate. Allow 5 minutes for debriefing. g. Explain the homework assignment that students will be asked to complete (see below). Evaluation a. Evaluate students’ participation in class discussions, including willingness to defend their position. b. Evaluate students’ completion of assigned homework (see below). Name: Date: Student Opinion Poll Circle the answer that most closely corresponds with your opinion. 1. Walter White is driving a RV when he is pulled over by police officer Hank Schrader. Officer Schrader recognizes White as a suspected meth cooker who has an outstanding arrest warrant for selling meth, and he knows that RVs are often used to cook meth. When Officer Schrader asks White if he can search the RV, White says that he cannot. Officer Schrader places White under arrest, and places White in the back of his police car. Based on these facts, Officer Schrader should be able to search White's RV without having to first obtain a warrant. ____________ ____________ ____________ ____________ ____________ Strongly Agree Agree Undecided Disagree Strongly Disagree 2. Dexter Morgan is being investigated by the police for murder. Detective Debra Morgan believes that there is evidence of Dexter's crimes in his trash. Dexter has placed his trash on the curb in front of his house for pick-up. Based on these facts, Debra Morgan should be able to look in Dexter's trash without first obtaining a warrant. ____________ ____________ ____________ ____________ ____________ Strongly Agree Agree Undecided Disagree Strongly Disagree 3. Sheriff Rick Grimes believes that a man shambling along the road and moaning is acting suspiciously. Sheriff Grimes approaches the man to speak with him, but is worried that the man might have a weapon, and, given the man's strange behavior, that the man might use the weapon against him. Sheriff Grimes should be able to frisk the man's clothing before speaking with him, to ensure the man does not have any weapons. ____________ ____________ ____________ ____________ ____________ Strongly Agree Agree Undecided Disagree Strongly Disagree 4. School Resource Officer (SRO) Ned Stark is told that Joffrey Baratheon has been seen with a small dagger on school grounds. Joffrey was seen putting the dagger into his backpack before heading to class. RSO Stark removed Joffrey from class and brought him to the principal's office. There RSO Stark asked Joffrey about the dagger, and Joffrey denied possessing the dagger. RSO Stark asked to search Joffrey's locked backpack, but Joffrey refused to consent to the search. RSO Stark should be able to search Joffrey's locked backpack without first obtaining a warrant. ____________ ____________ ____________ ____________ ____________ Strongly Agree Agree Undecided Disagree Strongly Disagree Strongly Agree Agree Undecided Disagree Strongly Disagree Opinion Poll Teacher's Guide 1. What rights are protected in the US Constitution? What rights are protected in the Washington State Constitution? 4th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Note: only "unreasonable" searches and seizures are prohibited. Article 1 Section 7: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Note: there is no "reasonableness" standard. 2. What is a search? What is a seizure? To included under the 4th amendment (or under the Washington Constitution), the "search" or "seizure" must have been done by an agent of the government (i.e. a police officer, an FBI agent, etc.). A search: "for there to be a Fourth Amendment search the police must have… intruded into “a constitutionally protected area."1 Search & Seizure § 2.1(a) (5th ed.). An area is constitutionally protected if it meets "a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’" Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576 (1967). Examples: : a home, a car, a business. Seizure of property: "a seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property." 1 Search & Seizure § 2.1(a) (5th ed.). Examples: police impounding a car, confiscating alcohol, or taking a cell phone. Seizure of an individual: "a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."1 Search & Seizure § 2.1(a) (5th ed.). Examples: police arresting an individual, searching an individual, pulling an individual over. 3. What happens if the government violates the constitutional rights? The exclusion of any evidence gained through the unconstitutional action is the normal remedy. This means that any evidence uncovered during the illegal search/seizure or any evidence that results from the illegal search/seizure will not be allowed to be introduced in court. This means that someone who is known to be guilty might escape punishment through the improper actions of the government. The rule is designed to give police no incentive to violate constitutional rights when attempting to build a criminal case. If the violation is serious enough, an individual can try to sue the government. Case Studies: 1. Walter White and Hank Schrader: The US Constitution would likely allow the search. According to Arizona v. Gant, "Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." 556 U.S. 332, 351, 129 S. Ct. 1710, 1723, 173 L. Ed. 2d 485 (2009). Because White is being arrested for cooking meth, and Schrader knows that RVs are often used to cook meth, Schrader can probably search the RV without a warrant. The Washington State Constitution would not allow the search. As the Washington Supreme court said, "We hold that the second version of the vehicle-search-incident-toarrest exception recognized by the United States Supreme Court in Gant…does not apply under article I, section 7. We also conclude that a variation of this exception, requiring probable cause to believe that evidence of the crime of arrest might be found in the vehicle rather than a reasonable belief that such evidence might be found, is also not a valid form of the vehicle search incident to the arrest of a recent occupant because neither of the justifications for this exception to the warrant requirement justify such an exception. State v. Snapp, 174 Wash. 2d 177, 201-02, 275 P.3d 289, 301 (2012). The Washington Supreme Court ruled this way because of the language of Article 1 Section 7 - there is no language allowing "reasonable" searches, so the general assumption in most cases is that police need to get a warrant before conducting a search. 2. Dexter and Debra Morgan: The US Constitution does allow the search of an individual's garbage without a warrant. As the Supreme Court said, "we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage “in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it, respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded." California v. Greenwood, 486 U.S. 35, 40-41, 108 S. Ct. 1625, 1628-29, 100 L. Ed. 2d 30 (1988). The Washington State constitution does prohibit warrantless searches of an individual's garbage. The court rejected the Supreme Court's position, saying, "While a person must reasonably expect a licensed trash collector will remove the contents of his trash can, this expectation does not also infer an expectation of governmental intrusion." State v. Boland, 115 Wash. 2d 571, 581, 800 P.2d 1112, 1117 (1990). Therefore the trash was a protected area. 3. Rick Grimes and the zombie: Both constitutions might allow the weapons-frisk. The US Supreme Court has recognized that the stop and the frisk is both a search and a seizure, but has said that " When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 1881, 20 L. Ed. 2d 889 (1968). Similarly, the Washington Supreme Court has said that " addition to questioning, Terry permits the officer to frisk the person for weapons if the officer has reasonable grounds to believe the person to be armed and presently dangerous." State v. Hudson, 124 Wash. 2d 107, 112, 874 P.2d 160, 163 (1994). The key question in this case will therefore be whether or not Sheriff Grimes had reasonable grounds to believe the zombie was armed. Based on the facts of the case given, there probably is not sufficient evidence to justify the frisk, but it is not a sure thing; a court could find that there was sufficient evidence. 4. Joffrey and Ned Under the US Constitution, the search of the backpack would probably be allowed. The US Supreme Court has said that "Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are 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." New Jersey v. T.L.O., 469 U.S. 325, 341-42, 105 S. Ct. 733, 743, 83 L. Ed. 2d 720 (1985). The question is therefore whether or not an RSO is a "school official." The Supreme Court has not yet answered this question squarely, but given the court's deference to officials to keep order in school, they probably would allow such a search - especially when looking for a potentially deadly weapon. An examples of how far the court is willing to let school officials go in, random drug tests for student athletes have been upheld by the Court. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995). Under Washington State's Constitution, the search would not be allowed. As the state supreme court has said "In sum, we hold that in light of the overwhelming indicia of police action[i.e. a uniformed school resource officer], the school search exception [of T.L.O.] does not apply to [a search of a] locked backpack. [The RSO] is a fully commissioned law enforcement officer employed by the Bellevue Police Department who has no ability to discipline students. At the time of the search, [the RSO] was seeking to obtain evidence for criminal prosecution, not evidence for informal school discipline. Further, the search was not to maintain order because [the student] was being removed from school regardless of the search. Therefore, the underlying purpose of the school search exception is not served. Without the application of the exception, [the RSO] required a warrant supported by probable cause to search [the student's] locked backpack. State v. Meneese, 174 Wash. 2d 937, 947-48, 282 P.3d 83, 88 (2012). Note, however, that a principal could likely conduct the search (thought not at the behest of police). Debrief: Note how the different language of the 4th Amendment and Article 1 Section 7 drives the divergent outcomes in these cases. Generally, Washington imposes a higher standard on police before they can conduct searches (usually a warrant). This is possible because the US Constitution only provides a "floor" for rights - i.e. no state can offer fewer rights than those guaranteed in the US Constitution. Because it does not provide a "ceiling" for rights, states like Washington are free to offer greater protections in their state constitutions. Name: Date: Search and Seizure Homework Assignment 1) List 2 things that you found interesting in today's class. 2) List 2 things that you learned in today's class. 3) List 2 questions that you would like us to answer about the material covered in today's class. Search & Seizure KELLEN WRIGHT What does the US Constitution say about searches and seizures? What about the Washington State Constitution? The 4th Amendment to the United States’ Constitution says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Article 1, Section 7 of the Washington State Constitution says: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law." What are searches and seizures? A search is an intrusion into a an area that in which: 1) a person has exhibited an actual (subjective) expectation of privacy and, 2) that the expectation is one that society is prepared to recognize as ‘reasonable A seizure is an interference with property, or, for an individual, when that individual reasonably does not feel free to leave Walter White Officer Schrader should be able to search White's RV without having to first obtain a warrant. Is this Constitutional? US Constitution: Washington State Yes! Warrantless Constitution: No! The Washington Constitution requires that police obtain a warrant before searching the car. searches are allowed to look for evidence of the crime that the suspect has been arrested for. Dexter Can Debra search Dexter’s trash without a warrant? Is this Constitutional? US Constitution: Washington Yes! You don’t have a Constitution: No! You don’t expect people to be pawing through your garbage once you put it out, so you do have a protected privacy interest. protected privacy interest in garbage you put out on the curb. Rick Grimes Can Sheriff Grimes stop and frisk the (zombie) man? Is this Constitutional? Both: Maybe. Both allow searches for weapons is the cop’s suspicions are “reasonable.” The question would therefore be if Rick Grimes’ suspicions in this case were actually reasonable. Joffrey Baratheon Can Ned Stark search Joffrey’s locked backpack? Is this Constitutional? US Constitution: Washington Probably yes. The Constitution: No! Uniformed police officers (including RSOs) must get a warrant before searching a student’s locked backpack (at least when the purpose of the search is to uncover evidence of a crime). Supreme Court has been very willing to let officials have the authority to search students at school.