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CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE, FOURTEENTH EDITION

BY JACQUELINE R. KANOVITZ

STUDENT SELF-ASSESSMENT & STUDY GUIDE

Note: Cases that appear in Part II of the textbook are noted in boldface.

Chapter 1History, Structure, and Content of the United States Constitution

Objectives

This chapter covers the events that led to the adoption of the U.S. Constitution, the structure and content of the Constitution, the limitations imposed by the Bill of Rights and the Fourteenth Amendment, an overview of our judicial system, how cases reach the Supreme Court, and the remedies our legal system provides for police violations of constitutional rights. It is designed as an introductory chapter. The objectives of this chapter are to provide a working knowledge of:

1. The events that led to the adoption of the Constitution and Bill of Rights.

2. Major structural features of the Constitution, including the separation of the powers between the three branches of the federal government, the powers granted to the federal government, the nature of our federal union, and the sovereign powers reserved by the states.

3. Rights guaranteed by the first 10 amendments to the Constitution, known as the Bill of Rights.

4. Protections afforded by the Fourteenth Amendment due process and equal protection clauses.

5. Our judicial system and how cases raising constitutional questions reach the United States Supreme Court.

6. Why it is important for police to understand the Constitution and conform to its dictates.

7. Basic concepts that provide a foundation for subjects covered in future chapters.

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Student Review Questions

1. Why was the central government established under the Articles of Confederation unworkable? (§1.3)

2. When the Constitution was submitted to the states for ratification, three objections were raised against its adoption. What were they? (§1.5)

3. How many articles does the Constitution contain? Which Article does the following? (§1.6)

____ a. Establishes procedure for amending the Constitution.

____ b. Contains the supremacy clause.

____ c. Establishes the Executive Branch.

____ d. Establishes the Judicial Branch.

____ e. Establishes the Legislative Branch.

____ f. Lists the powers delegated to the federal government.

____ g. Defines of the crime of treason.

____ h. Lists the duties states owe one another.

____ j. Lists the powers that the states are constitutionally forbidden to exercise.

4. Which articles provide for the separation of powers of the federal government? What is the main responsibility of the legislative branch? The executive branch? The judicial branch? What courts are directly established in the Article III? (§1.7)

5. What can Congress do if the Supreme Court hands down a decision interpreting the Constitution in a way that Congress deems wrong? (§1.7)

6. How does the Constitution spell out the division of powers between the federal government and the states? (§1.8)

7. List the powers delegated to Congress under Article I, Section 8. (§1.9)

8. Identify the three categories of activities Congress can regulate under the commerce clause. Provide examples of the kinds of regulations that are permissible under each category. What two limitations has the Supreme Court imposed on laws enacted under the third category? (§1.9)

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9. What is the constitutional basis for the “implied powers” of Congress? What do the implied powers permit Congress to do? (§1.9)

10. The Constitution not only enumerates the powers delegated to the federal government, it also specifically limits the powers of the states. What five powers are state governments specifically prohibited from exercising? (§1.10)

11. What is an ex post facto law? What is a bill of attainder? Which article prohibits ex post facto laws? Bills of attainder? (§1.10)

12. What is the constitutional basis for the doctrine of preemption? (§1.11)

13. When the first Congress met, legislation was introduced to add a bill of rights. Why was this action necessary so soon after the Constitution was adopted? (§1.12)

14. In which of the first 10 Amendments are the following rights guaranteed? (§1.12)

____ a. Right to assistance of counsel

____ b. Right to keep and bear arms

____ c. Protection against cruel and unusual punishment

____ d. Freedom of speech

____ e. Right to a jury trial

____ f. Protection against compulsory self-incrimination

____ g. Protection against unreasonable searches and seizures

____ h. Protection against the issuance of warrants without probable cause, supported by oath or affirmation, particularly describing the place to be searched or the persons or things to be seized

____ i. Protection against double jeopardy (i.e., being tried more than once for the same offense)

15. What test has the Supreme Court used to determine whether or not to incorporate a right? (§1.13)

16. What four things does the Fourteenth Amendment do? (§§1.13, l.14, 1.15, 1.16)

17. Explain the difference between substantive due process and procedural due process. (§1.15)

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18. What does the phrase “fundamental right” mean? Give several examples of rights that are regarded as “fundamental rights.” (§1.15)

19. What level of scrutiny do courts use to review laws that distinguish between classes of citizens based on: (a) their gender, (b) race, (c) age? (§1.16)

20. A person convicted of a state criminal offense who believes that his federal constitutional rights were violated may seek United States Supreme Court review through one of two routes. What are these routes? Trace the steps that must be taken to reach the United States Supreme Court through each of these routes. (§1.17).

21. What five consequences may ensue from a police officer’s violation of a citizen’s constitutional rights? (§1.17)

Multiple-choice Questions (The student multiple-choice questions test the same information that will be covered on the real exam, though questions will not be same. Consequently, it will benefit you to figure out why your answers do not match the answer key for answers that do not.)

1. Article I of the United States Constitution:a. contains the supremacy clauseb. protects freedom of speechc. makes the President commander and chief of the armed forcesd. grants Congress the power to levy taxes.

2. Article I of the U.S. Constitution does all following EXCEPT:a. establishes the Senate and House of Representativesb. outlines the powers of Congress in domestic and foreign affairsc. specifies the manner of Impeachmentd. establishes the method of amending the Constitution.

3. Article II of the United States Constitution:a. establishes the powers of the Presidentb. guarantees the right to bear armsc. guarantees that the federal government will not quarter troops in private homesd. lists the duties state owe one another.

4. Under the Constitution, states are prohibited from doing all of the following, except: a. laying duties on exports, without the consent of Congress b. entering into treaties c. passing ex-post facto laws d. conducting background checks before allowing citizens to purchase handguns

5. Under our federal system of governments, states have primary authority to:a. enact bankruptcy lawsb. enact zoning laws

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c. arrest undocumented workers who are illegally present in that state.d. punish counterfeiting

6. The Bill of Rights:a. was adopted by the colonists in 1776.b. declares that no state shall deny any person due process of law.c. was proposed by the First Congress to fulfill pledges made to secure ratification.d. guarantees states protection against internal resurrection.

7. Protection against compulsory self-incrimination is guaranteed by the:a. Third Amendmentb. Fourth Amendmentc. Fifth Amendmentd. Sixth Amendment

8. The right to assistance of counsel is guaranteed by the:a. Third Amendmentb. Fourth Amendmentc. Fifth Amendmentd. Sixth Amendment

9. The Fourteenth Amendment to the Constitution was passed in the aftermath of which war?a. Revolutionary warb. War of 1812c. Civil Ward. Spanish American War

10. The Fourteenth Amendment does all but which one of the following:a. makes most of the Bill of Rights applicable to the Statesb. abolishes slaveryc. protects fundamental rightsd. guarantees procedural due process

11. The Supreme Court has held all of the following to be a fundament right except.a. the right to marry a person of the same sexb. the right to forego life-sustaining treatmentc. the right to practice birth controld. the right to terminate an unwanted pregnancy.

True/False Questions

12. The Articles of Confederation created a strong federal government.a. Trueb. False

13. The Bill of Rights is a declaration of the rights that citizens have against each other.

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a. Trueb. False

14. The U.S. Constitution is divided into seven parts called Articles.a. Trueb. False

15. The powers reserved to the states are called police powers.a. Trueb. False

16. Congress cannot use the taxing power to shape decisions on matters that it could not directly regulate.a. Trueb. False

17. Incorporation of a right protected by the Bill of Rights into the due process clause of the 14th Amendment means that states must afford the same or greater protection than the Constitution requires for the federal government.a. Trueb. False

18. Habeas corpus is a remedy that allows prisoners whose constitutional rights were violated to appeal their conviction directly to the Supreme Court in order to secure release from an unconstitutional confinement.a. Trueb. False

19. The Commerce Clause empowers the federal government to enact any laws that are necessary and proper to protect the health, safety, and welfare of the American people.a. Trueb. False

20. The equal protection clause requires strict scrutiny for laws that distinguish between individuals based on their gender.a. Trueb. False

21. The ratification process was complete and the Constitution went into effect in 1791.a. Trueb. False

22. The Fourteenth Amendment due process clause prohibits the states from discriminating on the basis of race, religion, or national origin.a. Trueb. False

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23. Constitutional Amendments must be ratified by three-fourths of the states to become part of the Constitution.a. Trueb. False

ANSWERS:

1. d 10. b 19. b2. d 11. a 20. b3. a 12. b 21. b4. d 13. b 22. b5. b 14. a 23. a6. c 15. a7. c 16. b8. d 17. a9. c 18. b

Chapter 2Freedom of Speech

Objectives

The focus of this chapter is on 10 words found in the First Amendment: “Congress shall make no law abridging the freedom of speech.” These 10 words are extremely important to American citizens. The main goal of this chapter is to equip students to recognize when citizens are engaged in activity that falls within the purview of the First Amendment and, if so, to be thoroughly knowledgeable of when they can arrest citizens for what they say and when they can arrest citizens for what they do. To this end, students should emerge with a solid understanding of the following matters:

1. The broad range of activities regarded as “speech” under the First Amendment.

2. When restrictions on speech content are allowed. This requires a thorough understanding of the five topics that are not protected by the First Amendment: (1) obscenity, (2) child pornography, (3) fighting words, (4) speech integral to criminal conduct, and (4) incitement to violence or other unlawful activity.

3. When police officers may consider speech content in making enforcement decisions. This also requires a thorough understanding of the five speech topics that are not protected by the First Amendment.

4. Permissible regulation of conduct associated with speech (such as parades, pickets, demonstrations, marches, hand billing, leafleting, etc.)

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Student Review Questions (Answers are given at the end for questions that have asterisks beside them.)

1. What freedoms, in addition to freedom of speech, are mentioned in the First Amendment? (Study the full text of First Amendment in the Appendix)

2. “Speech” has an expansive definition for First Amendment purposes. List as many endeavors as you can that involve “speech.” (§2.3)

3. What is necessary for mute conduct to be considered symbolic speech? Provide examples of conduct that qualifies. (§§2.3-2.4)

4. State the O’Brien test for when laws regulating conduct can be applied to persons engaged in speech. (§2.4)

5. Why did the Supreme Court find the Texas flag desecration statute unconstitutional in Texas v. Johnson? (§2.3)

6. What does phrase “marketplace of ideas” mean? (§2.5)

7. What categories of speech have been excluded from First Amendment protection? What reason has the Supreme Court given for their exclusion? What showing would be necessary to persuade the Supreme Court to exclude another category? (§§2.5-2.9).

8. What speech topics carry limited First Amendment protection? (§§2.5. 2.11, 2.12)

9. When may police consider speech content in making enforcement decision? (§§2.5-2.9)

10. State the legal definition of obscenity. What case established this test? (§2.6)

11. What is child pornography? (§2.6)

12. What is necessary for a work to be considered “child pornography” that it not required for it to be considered “obscene”? What is necessary for a work to be considered “obscene” that is not required for it to be treated as “child pornography?” (§2.6)

13. Why are special procedures needed for obscenity searches and seizures? (§2.6)

14. State the constitutional test for “fighting words.” Give several examples of words which, if spoken in a personal confrontation, would be considered fighting words? (§2.7)

15. Why are insults and obscenities directed at police officers seldom treated as “fighting words”? (§2.7)

16. State the test for when speech is punishable as a “true threat?” (§2.8)

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17. State the test for when speech advocating violence or other unlawful activity is punishable? What case established this test? (§2.9)

18. What is the proper response for police when a hostile audience threatens a breach of the peace at a First Amendment gathering? (§2.9)

. 19. What is hate speech? What degree of protection--full, limited, or none—does hate speech

enjoy? Can legislatures make it a crime to kill a person because of the person’s race, religion or sexual orientation? Can legislatures provide enhanced punishments for persons who select their victims because of their race, religion, or sexual orientation? (§2.10)

20. When is burning a cross protected by the First Amendment? When it is not protected? (§§ 2.8, 2.10; Virginia v. Black (Part II)).

21. A police officer arrested a woman for shoplifting. As he was taking her into custody, she snarled at him: “You f——ing son of a bitch!” Can the officer charge her with disorderly conduct for using profanity? (§2.11)

22. What role does “forum analysis” play in First Amendment dispute resolution? (§2.13)

23. Give at least four examples of locations regarded as public forums? (§2.14)

24. Give at least four examples of locations are regarded as nonpublic forums? (§2.14)

25. What requirements must restrictions on speech in nonpublic forums satisfy to be valid? (§2.14)

26. What requirements must restrictions on the time, place, or manner using public forums for speech satisfy to be valid? (§2.14)

27. What requirements must permit ordinances satisfy to be valid? (§2.15)

*28.Classify following locations as a public forum or a nonpublic forum and determine whether the regulation is valid. (§§2.14-2.16).

a. An ordinance prohibiting begging in municipal bus stations?

b. An ordinance outlawing begging any place in the city?

c. An ordinance prohibiting attachment of signs and posters to municipal lampposts and fire hydrants.

d. An ordinance prohibiting excessively loud noises in front of churches and hospitals.

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e. An ordinance that prohibits display of signs within 500 feet of a foreign embassy that are critical of the foreign government.

f. An ordinance that prohibits distributing handbills in parks.

g. An ordinance that outlaws display of yard signs in residential neighborhoods.

h. An ordinance that requires that applications for a permit to hold a rally in a park be made 30 days in advance.

i. An ordinance that vests discretion in the administrator to refuse a permit to hold a rally “to prevent riots, disturbances or disorderly assemblage.”

29. There are three kinds of statutes that police should never use to make an arrest in a context involving speech, even when the speaker’s conduct is not protected by the First Amendment. Identify them. (§2.17)

ANSWERS:

28. a. Nonpublic forum/valid

b. Public forum/invalid. Laws that prohibit speech in a public forum are invalid

c. Nonpublic forum/valid

d. Public forum/valid time, place, and manner restriction on speech

e. Public forum/invalid. This ordinance cannot be sustained as a reasonable restriction on the location of speech because it restricts speech based on the content and, worse still, based on the viewpoint.

f. Public forum/ invalid because it prohibits a medium of expression that is important to people and groups with limited funds.

g. A person’s front yard is technically neither a public forum nor a nonpublic forum. It’s private property. In City of Ladue v. Gilleo (Part II), the Supreme Court determined that held that the ordinance was invalid because it foreclosed use of a unique medium of expression that is important to persons with limited funds.

h. Public forum. Ordinances that require a permit to use a public forum may not impose long waiting periods.

g. Public forum/invalid. Permit ordinances may not delegate discretion to consider the applicant’s identity, message, or any assumptions or predictions as to the

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amount of hostility that may be aroused in the public by the content or message conveyed.

Multiple-Choice Questions (The student multiple-choice questions test the same information that will be covered on the real exam, though questions will not be same. Consequently, it will benefit you to figure out why your answers do not match the answer key for answers that do not.)

1. The First Amendment mentions several rights in addition to freedom of speech. Among them is the right to: a. privacyb. bear armsc. not to have soldiers quartered in one’s homed. to petition Congress for a redress of grievances

2. To be excluded from protection under the “fighting words” exception, the words must be:a. personally abusive or insulting b. spoken in a face-to-face encounterc. uttered under circumstances inherently likely to provoke the listener to respond with violenced. all of the above

3. Which of the following is an example of constitutionally protected symbolic speech?a. forming a human barricade to block entrance to an abortion clinicb. wearing a hooded white robe at a Ku Klux Klan rallyc. burning a flag flying over a post officed. none of the above

4. Several categories of speech lack First Amendment protection. They include:a. statements that are knowingly falseb. profanityc. hate speechd. none of the above

5. The First Amendment does NOT protect:a. statements calculated to arouse anger, resentment, or hatred in others based on race,

religion, or sexual orientationb. pictures that depict children engaged in sexually explicit conductc. panhandlingd. any of the above

6. All of the following measures violate the First Amendment EXCEPT:a. an ordinance outlawing posting of yard signs in residential neighborhoods b. an ordinance requiring a permit to distribute leaflets c. an ordinance prohibiting use of sound amplification equipment in residential areas after

dark

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d. an ordinance requiring 30 days advance notice to hold a public meeting in a park

7. To constitute a true threat, for First Amendment purposes:a. the statement must contain a serious expression of intent to commit an unlawful act of

violenceb. the speaker must intend to take action on his or her statementc. the action must be imminentd. all of the above

8. All of the following are examples of nonpublic forums EXCEPT:a. libraryb. municipal auditoriumc. police stationd. office building

9. The City of Loserville recently enacted four ordinances, three of which violate the First Amendment. Which one is constitutional?a. an ordinance making it illegal to address abusive or insulting language to a police officer

engaged in the performance of his/her dutyb. an ordinance making it illegal to beg for money on a public streetc. an ordinance making it illegal to block the public passaged. an ordinance that makes it illegal to display a swastika within 100 feet of a synagogue

10. The controlling test for when laws that prohibit conduct can be enforced against people engaged in speech was established in:a. Texas v. Johnsonb. United States v. O’Brienc. Miller v. United Statesd. Chaplinsky v. New Hampshire

11. The controlling test for when speech advocating violence or other unlawful actions can be made a crime was established in:a. Virginia v. Blackb. Watts v. United Statesc. Grace v. United Statesd. Brandenburg v. Ohio

12. Which of the following statutes are constitutional under the First Amendment?a. a statute that prohibits false statement about having received military honorsb. a statute that prohibits the creation and sale of videos that depict the torture and killing of

live animalsc. a statute that makes it illegal to stand on a public street or sidewalk within 35 feet of the

entrance to a funeral home and engage in conduct likely to cause extreme emotional distress to the family of the deceased

d. none of the above

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True/ False Questions

13. The First Amendment has its roots in the Magna Carta.a. Trueb. False

14. A search warrant is always needed to seize literary materials. a. Trueb. False

15. Police officers can purchase literary material as a means of gathering evidence for an obscenity charge without first obtaining a warrant. a. Trueb. False

16. Materials can be outlawed as child pornography only if they lack serious scientific, social, literary, or other value. a. Trueb. False

17. Students in public schools do not have the same First Amendment rights as adults when it comes to using vulgar language.a. Trueb. False

18. Post offices are an example of a public forum by designation.a. Trueb. False

19. Legislatures can prohibit the sale to minors of materials that depict extreme acts of violence that would be protected by the First Amendment if sold to an adult.a. Trueb. False

20. Legislatures can, notwithstanding the First Amendment, make it a crime to kill a person out of hatred toward them based on their race, religion, ethnicity, or sexual orientation.a. Trueb. False

ANSWERS:

1. d 8. b 15. a2. d 9. c 16. b3. b 10. b 17. a4. d 11. d 18. b5. b 12. d 19. b

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6. c 13. b 20. a7. a 14. a

Case Studies

Visit the Routledge Constitutional Law for Criminal Justice, 14th ed., student website to read and respond to case studies that help illustrate the principles in this chapter.

Chapter 3Authority to Detain and Arrest; Use of Force

Objectives

Students should emerge from this chapter with a solid grasp of the following:

1. The difference between voluntary investigative encounters, Terry stops, and arrests.

2. When police conduct constitutes a seizure.

3. Degree of suspicion needed for voluntary investigative encounters, Terry stops, arrests, weapons frisks, etc.

4. Amounts and types of information needed to satisfy the reasonable suspicion and probable cause standards.

5. Actions that are permissible/ impermissible during Terry stops.

6. How to successfully execute a pretextual traffic stop.

7. When an arrest warrant is necessary.

8. What needs to go into a properly prepared affidavit in support of an arrest warrant?

9. How to properly execute an arrest warrant.

10. Common patterns in state arrest law.

11. Fourth Amendment limits on the use of force, including deadly force.

12. Consequences of violating the Fourth Amendment.


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1. What legal norms besides the Fourth Amendment must an arrest comply with to be valid? (§3.1)

2. An arrest may violate the Fourth Amendment for three different reasons. What are they? (§§3.3, 3.5)

3. What consequences can ensue from violating the Fourth Amendment? (§3.2)

4. Three categories of police/suspect encounters were discussed in this chapter. Identify them. (§§3.3, 3.4)

5. What is necessary for a police/suspect investigative encounter to be considered voluntary? (§§3.3, 3.4)

6. What level of suspicion is necessary for a voluntary investigative encounter? (§§3.3, 3.4)

7. What can police do if a suspect refuses to cooperate during a voluntary investigative encounter? (§3.4)

8. Define the term “seizure” and describe the two ways in which a seizure can be effectuated (§3.5)

9. Why is it often necessary for courts to pinpoint the exact moment when a seizure occurs? (§3.5)

*10.What test is used to determine whether a police officer’s conduct constituted a “show of legal authority?” Give several examples of police conduct that constitutes a show of authority. (§3.5)

11. What must police do to effectuate a seizure if the suspect does not submit to their show of legal authority? (§3.5)

12. What Fourth Amendment grounds are necessary for an investigative stop? For an arrest? (§3.6)

13. How are the reasonable suspicion and probable cause standards similar? How do they differ? (§3.6)

14. Describe the process courts use to determine whether police had reasonable suspicion for an investigative stop. Probable cause for arrest? (§3.6)

15. What was the first case to recognize investigative stops as a distinct category of seizure? (§3.7) What two rules did that case lay down? (§3.7)

16. What is the test for reasonable suspicion? (§3.8)

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17. What is the difference between a hunch and reasonable suspicion? (§3.8)

18. What are the various sources of information from which reasonable suspicion may be drawn? (§§3.6, 3.8)

19. Are tips received from members of the public who identify themselves and report matters about which they have firsthand knowledge sufficient to provide reasonable suspicion for a Terry stop? Are unverified anonymous tips sufficient? If not, what sorts of additional facts have been held sufficient to make them so? What did the Supreme Court hold in Navarette v. California? (§3.8).

20. Why are police more restricted in the actions they are permitted to take during Terry stops than after an arrest? (§§3.6, 3.9)

21. All activities undertaken during a Terry stop must be geared toward one of two general objectives. What are they? (§3.9)

22. What two things are required for a lawful frisk? Describe the scope and intensity of the search activity permitted for a frisk. (§3.9)

23. Under what circumstances, if ever, may police seize nondangerous contraband during a Terry stop? (§3.9)

24. What is the “plain feel” doctrine? (§3.9)

25. What investigative activities besides requests for identification and questioning are permitted during a Terry stop? What activities are off-limits? (§3.9)

26. What limitations exist on the duration of Terry stops? (§3.9)

27. What four requirements does the Fourth Amendment impose for a valid checkpoint stop? Give examples of what is meant by “special need”? (§3.10)

28. What is a pretextual traffic stop? Are such stops legal? (§3.11)

29. What precautions are police allowed to take for their safety during traffic stops? What justification—probable cause, reasonable suspicion, or none—must police have in order to take each of them? (§3.11)

*30. When, if ever, may police question a motorist stopped for a traffic violation about unrelated criminal activity? (§3.11)

*31.What authority do police have to search for evidence when they: (1) issue a traffic citation? (2) Make a traffic arrest? (3) Arrest a motorist for a nontraffic offense? (§ 3.11; Arizona v. Gant (Part II))

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*32.Under what circumstances may police bring a drug-detection dog to the scene of a traffic stop to perform a sniff? (§3.11)

33. What two things are necessary for a traffic stop to change into a voluntary investigative encounter? (§3.11)

34. What is the test for probable cause? (§§3.12, 3.13)

35. When does the Fourth Amendment require an arrest warrant? (§3.12)

36. What advantages accrue to officers from proceeding under an arrest warrant instead of making the probable cause determination on their own? (§3.12)

37. When is an arrestee entitled to a post-arrest judicial determination of probable cause? (§3.12)

38. Within what period after the arrest must it occur? (§3.12)

39. What three requirements does the text of the Fourth Amendment impose for a valid arrest warrant? (§3.14)

40. How can police satisfy the Fourth Amendment requirement that an arrest warrant “particularly describe” the person to be seized when police do not know the suspect’s name? (§3.14)

41. What two Fourth Amendment requirements are generally necessary to arrest someone inside their own home? (§3.15)

42. What three Fourth Amendment requirements are generally necessary to arrest someone inside another person’s home? (§3.15)

43. What locations are considered “homes” under the Fourth Amendment? Are front porches included within protection of the home for purposes of determining whether a warrant is necessary to make an arrest? (§3.15)

44. Under what circumstances are the police excused from complying with the requirements covered in Questions 41 and 42? (§3.15)

45. Who has the authority to give consent to enter a private home? (§3.15)

46. What constitutes “exigent circumstances”? (§3.15)

47. What test do courts use to determine whether the force used by an officer was excessive? What factors do courts consider in applying that test? (§3.16)

48. When is deadly force permitted? (§3.16)

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49. What additional requirements do state arrest laws normally impose for felony arrests? Misdemeanor arrests? (§3.17)

50. What is a felony? What is a misdemeanor? (§3.17)

51. When is a misdemeanor considered to have been committed in a police officer’s presence? (§3.17)

ANSWERS:

10. (1) The test for show of authority is whether a reasonable person would feel free to ignore the officer’s request, terminate the encounter, and leave. (2) Pulling behind a vehicle and activating a siren; chasing someone on foot; ordering someone to do something, such as “freeze,” “put your hands up,” “face the wall,” “open the door, this is the police;” drawing a weapon; surrounding a person on all sides; and taking a suspect’s car keys so he can’t leave are a few of the many examples of police conduct that constitutes a show of authority.

30. Questioning is permitted: (1) if it does not delay completion of the stop, such as when it occurs while waiting for the results of the computer run or while writing out the ticket; (2) when police acquire reasonable suspicion of unrelated criminal activity during the stop; and (3) if the motorist consents to remain after the stop is over.

31. (1) None, but a dog sniff may be performed if it does not delay completion of the stop. (2) The motorist’s person may be searched, but the not vehicle. (3) The motorist’s person may be searched; the passenger compartment may be searched if evidence of the offense might be present, but not otherwise.

32. (1) A sniff can be performed, without reasonable suspicion, when the procedure can be executed without delaying completion of the stop; (2) otherwise reasonable suspicion of drug activity is necessary.


1. In order to be lawful, an arrest must comply with:a. the Fourth Amendmentb. state constitutionsc. state arrest lawsd. all of the above

2. The consensual aspects of an encounter vanish once a police officer’s conduct conveys the message that the suspect is not free to terminate the encountered leave. This conduct is known as:a. reasonable suspicion

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b. show of legal authority c. arrest d. Terry stop

3. Which of the following interactions is NOT a seizure?a. An officer yells “stop in the name of the law!” and fires a shot, but the suspect

continues running.b. A police officer activates a siren and lights and pursues the suspect’s car. The

suspect pulls over.c. A police officer sees a woman shoplift a pack of cigarettes. He approaches her,

grabs her by the arm, and says: “Open your purse. I want to see what you put in it.” The woman complies.

d. A police officer pounds on the suspect’s door for several minutes, repeating in a loud voice, “This is the police. Open up or we’ll kick the door in.” The suspect opens the door.

4. Which of the following is NEVER allowed during Terry stops without the suspect’s consent:a. frisking the detaineeb. taking the detainee to a second location for a showup identificationc. searching the detainee for evidenced. detaining the suspect for more than 30 minutes

5. Police must have reasonable suspicion to:a. ask travelers in airport terminals for permission to search their luggage b. stop a vehicle to check the driver’s license and vehicle registration at a location

other than a fixed checkpoint c. walk drug-detection dogs around a vehicle stopped for a traffic violationd. none of the above

6. Which of the following are permitted during Terry stop when they are relevant to the resolving the underlying suspicion.a. ask the detainee for identificationb. take the detainee to the police station for fingerprintingc. put the detainee in a lineupd. all of the above

7. Which of the following correctly states the rule concerning the duration of a Terry stop?a. Terry stops may last no longer than 15 minutes.b. Terry stops may last as long as necessary to resolve the underlying suspicion.c. The Supreme Court has declined to establish a fixed duration.d. none of the above

8. Checkpoint programs violate under Fourth Amendment unless:a. They serve a special need beyond the ordinary needs of law enforcement.b. The decision to set up a checkpoint is approved by a supervisory level police

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official.c. They are operated under systematic procedures that leave no discretion in

deciding which vehicles to stop.d. all of the above

9. The Fourth Amendment requires an arrest warrant:a. whenever it is practicable for the officer to obtain oneb. before making a nonconsensual entry into a hotel room to arrest a suspect who is

staying therec. before a suspect may be taken to the police stationd. all of the above

10. An arrest warrant will not protect an officer against liability for making an unconstitutional arrest if the:

a. warrant is not executed within 10 days after it is issuedb. officer deliberately includes false information in the application for the warrantc. warrant is not in the officer’s possession and shown to the person arrested at the time of the arrestd. all of the above

11. In evaluating whether probable cause exists for the issuance of an arrest warrant, the judge will:a. identify all the facts and circumstances known to the officer, view them in

combination, and evaluate their evidentiary significance in the way a trained police officer would

b. disregard information received from an informant unless the informant is brought before the judge and testifies in person

c. require more or stronger evidence than would be required if the officer made the arrest without a warrant

d. require more or stronger evidence for a misdemeanor arrest warrant than for a felony arrest

12. Reasonable suspicion:a. requires more than a hunch but less than probable cause for arrestb. must derive from the officer’s personal observationsc. is necessary to ask a person if they would be willing to take a lie detector testd. all of the above

13. Concerning authority to frisk detainees for weapons during Terry stops, the Supreme Court has ruled that:a. Detainees may be frisked when nature of the crime or other circumstances create

reasonable suspicion that the detainee is armed.b. Officers performing a frisk are limited to patting down the suspect’s outer

clothing. c. Detainees may be required to empty their pockets if the officer feels an object that

might be a weapon and cannot make a conclusive determination through touch alone.

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d. all of the above

14. The Fourth Amendment imposes the following requirements for a valid arrest warrant.a. Warrant must contain a particularized description of the place where it will be

served.b. The magistrate must make an independent determination that probable cause

exists for the issuance of a warrant.c. A copy of the officer’s sworn affidavit must be attached to the warrant.d. all of the above


15. An anonymous tip that a young black man wearing a plaid shirt standing at a certain bus stop is carrying a concealed weapon provides reasonable suspicion for a Terry stop if police encounter a young man matching the description at the location where the caller said he would be found.a. Trueb. False

16. Where an anonymous tip contains predictive information about a suspected drug dealer’s future travel plans that is likely to be known only by someone who has special knowledge of his private affairs, corroboration of the predictive information provides reasonable suspicion for a Terry stop.a. Trueb. False

17. Police have authority to search Terry detainees for drugs, weapons, or contraband when they have reasonable suspicion that the search will turn up any of them.a. Falseb. True

18. Courts view the facts from the perspective of a trained police officer in deciding whether probable cause existed for the action taken.a. Trueb. False

19. Police have the same authority to make an arrest in a second state as local police officers have.a. Trueb. False

20. The Fourth Amendment requires a post-arrest determination of probable cause by a magistrate within 48 hours after the arrest for persons who are arrested without a warrant and are not released on bail.a. Trueb. False

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ANSWERS:

1. d 11. a2. b 12. a3. a 13. d4. c 14. b5. b 15. b6. a 16. a7. c 17. b8. d 18. a9. b 19. b 10. b 20. a

Case Studies


Chapter 4Search and Seizure Objectives

This chapter completes the analysis of the Fourth Amendment begun in Chapter 3, which explored the Fourth Amendment authority of police to seize persons. This chapter investigates their authority to search persons, places, and things, and to seize things. The student should leave this chapter with a thorough understanding of the following:

1. The historical reasons that led the Framers to limit the authority of the police to search for and seize evidence.

2. When police evidence-gathering involves neither a search nor a seizure and, accordingly, is “free zone” activity and, conversely, when it crosses the line and becomes a search (i.e., physical trespass into a constitutionally protected location or intrusion on a suspect’s reasonable expectation of privacy) or a seizure (i.e., meaningful interference with a suspect’s right to possession of property) and is regulated by the Fourth Amendment.

3. What the Fourth Amendment requires for a police officer to have authority to: (1) search for evidence, (2) perform a limited weapons search, and (3) perform an inventory search.

4. The grounds for search authority, and the scope and intensity of search activity authorized for each of the various searches discussed in this chapter; namely, searches under the authority of a warrant, consent searches, searches incident to a lawful custodial arrest, exigent circumstances searches, motor vehicle searches, limited weapons searches, and inventory searches.

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5. What the Fourth Amendment requires for police to have authority to seize property for each of the following purposes: (1) to use as criminal evidence, (2) to conduct a temporary investigation, (3) to preserve the status quo while applying for a search warrant, and (4) to impound the property.

6. How the requirements listed in items 3 through 5 apply to: (1) searches of persons, (2) searches of vehicles, and (3) searches of premises.

7. The Fourth Amendment exclusionary rule and its various recognized exceptions.

The material in this chapter is challenging and may require multiple reading.


1. What was the historical abuse that led to the adoption of the search and seizure clause of the Fourth Amendment? (§4.2)

2. How did the Supreme Court define the term “search” prior to Katz v. United States? (§4.2)

3. How did the Court define the term “search” in Katz v. United States? (§4.2)

4. A search today can occur in one of two ways. What are the two ways? (§4.2)

5. What four locations are mentioned in the Fourth Amendment as having constitutional protection? (§4.2)

*6. An irate employee breaks into his boss’s locked file cabinet, steals an incriminating letter that bears his employer’s signature, and takes it to the police. May the police use the stolen letter as evidence? (§4.2)

7. When is something considered in “open view?” Why are police observations of matters in open view not considered searches? (§4.2)

*8. Do any of the following police investigative activities involve searches within the meaning of the Fourth Amendment? Explain why or why not. (§4.2)

a. Looking inside the passenger compartment of a car, parked on a public street, without opening the door.

b. Shining a flashlight to illuminate the interior of the automobile so the officer can see better.

c. Getting on the ground, looking underneath the automobile, and inspecting the tires.

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d. Walking a narcotics detection dog around an automobile to sniff for illegal drugs.

e. Opening the automobile door and looking inside the glove compartment.

f. Squeezing soft luggage to determine the contents.

9. Searches for criminal evidence are called “full searches.” What does the Fourth Amendment require for a full search? (§4.3)

10. There are four exceptions to the warrant requirement that permit full searches. Identify them. (§4.3)

11. What is the purpose of a limited weapons search? What does the Fourth Amendment require for a limited weapons search? (§4.3)

12. What is the purpose of an inventory search? On what occasions are inventory searches likely to be conducted? What does the Fourth Amendment require for an inventory search? (§4.3)

13. Define the term seizure. (§4.4)

*14.Indicate whether the following police actions involve a seizure and explain why or why not. (§4.4)

a. Taking objects from a garbage can that has been placed on the curb for collection.

b. Removing checked luggage from an airport baggage cart, subjecting it to a canine examination, and putting it back in time to be placed on the intended flight.

15. What does the Fourth Amendment require to seize property for use as evidence? (§4.4)

16. Identify the four categories of articles that may be seized as evidence. (§4.4)

17. What three requirements are necessary to seize evidence without a search warrant under the plain view doctrine? (§4.4)

*18.Suppose that police, while executing a search warrant to search for drugs, find a spiral notebook, open it, and read the contents. The notebook contains records of recent sales. May the police seize it under the plain view doctrine? (§4.4)

*19.Suppose that police, while investigating a domestic violence complaint in the neighboring home, observe marijuana plants growing in Sam’s fenced backyard. May they enter through the gate and seize the plants under the plain view doctrine? (§4.4)

20. Under what circumstances may an officer temporarily detain a container pending the issuance of a search warrant? (§4.4)

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21. When may an officer subject a container to a canine examination? (§4.4)

22. What four things does the language of the Fourth Amendment require for the issuance of a search warrant? (§4.5)

23. What three things must an officer’s affidavit establish in order to support a finding of probable cause for the issuance of a search warrant? (§4.5)

24. Why does the Fourth Amendment require that search warrants contain a particularized description of the place to be searched and the things to be seized? (§4.5)

25. What two requirements are necessary for the execution of a search warrant that are not necessary for the execution of an arrest warrant? (§4.5)

26. What two things are necessary for a police officer to have authority to conduct a Terry weapons frisk? What is the permissible scope of this search? What is the permissible intensity? When, if ever, may police seize items other than weapons discovered during a limited weapons search? (§4.7)

27. What justifications support the exception to the warrant requirement for searches incident to arrest? What besides the suspect’s clothing is included in a search of the arrest individual’s person? Are handbags and wallets included? When & where must the search be performed? What does the phrase “under the arrestee’s control” mean? Time wise, when must police search objects under the arrestee’s control? (§4.8)

28. What reasons did the Supreme Court give in Riley v. California for requiring a search warrant to search a cell phone, even though the phone is in the suspect’s immediate possession at the time of arrest. (§4.8; Riley v. California (Part II))

29. When may police search a closed container like luggage as part of a search incident to an arrest? (§4.8)

30. What four exceptions to the search warrant requirement besides consent apply to motor vehicles? Which of these exceptions allow police the search the trunk? (§4.9)

31. When do police have the authority to conduct a vehicular limited weapons search? What parts of the vehicle may be searched? What is the permissible intensity of the search? (§4.10)

*32.Under what circumstances, if any, may a vehicle be searched incident to a motorist’s arrest for: a) Speeding? b) Drunk driving? c. What parts of the vehicle may be searched? (§4.10)

33. What is the justification for the motor vehicle exception to the warrant requirement? What parts of the vehicle may be searched under this exception? Within what time frame must the search be performed? (§4.11)

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34. What two requirements does the Fourth Amendment impose for an inventory search? What are the permissible scope and intensity of this search? (§4.12)

35. When, if ever, may the police physically enter a residence without a warrant of any kind? (§§4.13-4.16)

36. Define the terms curtilage and open fields. (§4.14)

37. When does an officer need Fourth Amendment search authority to enter business premises? (§4.14)

38. Describe the scope of search authority conferred by a search warrant that describes the location to be searched by address. (§4.15)

39. When may police detain persons on the premises covered by a search warrant? (§4.15)

40. When may police frisk persons on the premises covered by search warrant? (§4.15)

41. When may police search persons on the premises covered by a search warrant for objects listed in the warrant? (§4.15)

42. What is the purpose of a protective sweep? What are the normal boundaries of a protective sweep? When may police extend the normal boundaries of a protective sweep? What is the intensity of a protective sweep? (§4.15)

43. What three circumstances are considered sufficiently exigent to justify a warrantless entry onto private premises? What is necessary to have authority to enter under each circumstance? What search activity is permissible when a warrantless entry is made to prevent destruction of evidence? (§4.16)

44. Who has standing to challenge the introduction of illegally seized evidence? (§4.17)

45. What are the five exceptions to the exclusionary rule? (§4.17)

46. What is the most important application of the good faith exception to the exclusionary rule? (§4.17)

ANSWERS: 6. Private party searches are not covered by the Fourth Amendment. Police may use the fruits

of private party searches when they are performed out without government complicity. Even though it would normally be a search to read a person’s private letters, it is not a search if a third party has already read them because the suspect no longer has a reasonable expectation of privacy in the content.

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8. a No because no reasonable expectation of privacy exists in matters exposed to public view

b. No for the same reason

c. No for the same reason

d. Dog sniffs are not considered searches. Police may use a dog to perform a sniff in any location where the officer is lawfully present.

e. Police trespassed into a constitutionally protected location when they opened the car door and looked inside the glove compartment; they also intruded on the owner’s reasonable expectation of privacy.

f. Bond v. United States (Part II) finds this conduct to be a search. While people expect that third parties may move their luggage, they do not expect them to perform tactile examinations to determine the content. Tactile examination of soft luggage, accordingly, infringes on reasonable privacy expectations and, thus, constitutes a search.

14. a. Removing articles from a garbage can placed on the curb for collection is neither a search nor a seizure. It is not a search because the general understanding is that poor people are free to rummage through garbage cans and take whatever they find. Thus, the contents of garbage cans placed on the curb for collection are exposed to public view There is also no seizure because the articles inside a garbage can set out for collection have been abandoned and the owner no longer has any property rights.

b. Removing checked luggage from an airport baggage cart and subjecting it to a canine examination does not constitute a meaningful interference with the owner’s possessory rights if it does not prevent or delay him from retrieving his luggage at the appropriate time.

18. Police may not seize the notebook under the plain view doctrine because its incriminating nature was not immediately apparent. They had to read the notebook to determine that it contained records of criminal activity. Reading the notebook exceeded their authority under a search warrant that authorized them to search for drugs.

19. Even though police were lawfully present in the neighbor’s back yard when they discovered plants that they immediately recognized as marijuana growing in Sam’s back yard, they do not have a lawful right of access; a search warrant will be necessary to enter Sam’s cartilage to seize the plant.

32. Arizona v. Gant recognized two justifications for searching a vehicle incident to the arrest of an occupant: (1) the suspect is unsecured and within reaching distance of the vehicle (safety justification); and (2) it is reasonable to believe that evidence relevant to the crime of arrest might be found inside the vehicle (evidence-gathering justification). (a) Only the first justification is relevant when an arrest is made for traffic offense like

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speeding. Police may search the vehicle for weapons if motorist is unsecured and within reaching distance of the passenger compartment, but not otherwise.( b) Since people who drink and drive, often have cans or bottles in their car, police may search the passenger compartment for evidence of the offense of arrest. (c) Police may search passenger compartment and anything inside the passenger compartment that might contain evidence of the crime of arrest. They may not search the trunk. The requirement that the search be performed while the arrestee is unsecured and within reaching distance of the vehicle does not apply to evidence gathering searches.

Multiple-Choice Questions (The student multiple-choice questions test the same information that will covered on the real exam, though questions will not be same. Consequently, it will benefit you to figure out why your answers do not match the answer key for answers that do not.)

1. Authority to search an arrested individual’s person without a warrant incident to his arrest:a. does not arise when the arrest is for a traffic violationb. does not apply to cell phonesc. requires probable cause to believe that the search will turn up evidenced. must be performed at the scene of the arrest

2. The Fourth Amendment expressly mentions which of the following as being protected against “unreasonable searches and seizures”: a. effectsb. papersc. housesd. all of the above

3. Which one of the following constitutes “full search”?a. Terry frisksb. protective sweepsc. searches conducted under the automobile exceptiond. inventory searches

4. Which of the following constitutes a search under the Fourth Amendment?a. rummaging through the suspect’s half-full garbage can in his garageb. peering through the decorative window above the suspect’s front door while

standing on a foot stoolc. looking inside the glove compartment of an unattended vehicle parked on a public

streetd. all of the above

5. An officer may seize an object as evidence without a search warrant describing only if:a. the officer is lawfully present at the location where he or she observes the object

in plain viewb. the officer has probable cause to obtain a search warrant

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c. the officer discovers the object by accidentd. all of the above

6. A weapon frisk requires:a. a lawful detentionb. reasonable suspicion that the person is armedc. no more than light touching of the suspect’s outer clothingd. all of the above

7. Police are allowed to perform brief, limited searches for investigation when they have reasonable suspicion that a closed container houses contraband. This authority stems from which Supreme Court decision? a. Miller v. California b. Terry v. Ohio c. Mapp v. Ohio d. none of the above

8. When the purpose of the search is to obtain evidence, the Fourth Amendment always requires: a. probable cause to believe that evidence will be foundb. a search warrant whenever time permitsc. that police look only in places where the object of their search might be found d. comply with all of these requirements

9. Which of the following is necessary to justify a plain view seizure? a. The officer must be on the premises executing a search warrant when the

discovery is made. b. The officer must acquire probable cause to believe that the object viewed is

associated with criminal activity without exceeding the lawful boundaries of his or her search authority.

c. The discovery must occur by accident. d. All three conditions are necessary.

10. Which of the following exceptions to the warrant requirement confer authority to look inside a motorist’s trunk?a. Terry weapon search authorityb. search incident to arrestc. motor vehicle exceptiond. plain view exception

11. A reliable informant told the police that Sam was growing a half-acre of marijuana in the woods behind his garage. The police:a. must secure a search warrant before entering Sam’s woods to look for the

marijuana plantsb. may enter Sam’s woods to determine the location of the marijuana plants, but

must secure a search warrant in order to seize them

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c. may enter Sam’s woods to search for the marijuana plants and seize them, both without a search warrant

d. may enter Sam’s woods to search for the marijuana plants and seize them without a warrant, along with the gardening tools in Sam’s garage because that he used to commit the crime

12. Police do not need a search warrant to:a. examine the contents of a carry-on bag after airline personnel have looked

through the bagb. walk a trained drug detection dog down a motel corridorc. look for the body of a murder victim in the large wooded area located on the

suspect’s property behind his homed. any of the above

13. Sticky Fingered Sam was arrested at the airport for shoplifting candy from a kiosk. Police handcuffed him and took him to the police station. The search incident to arrest exception to the warrant requirement gives police authority to search:a. everything in Sam’s walletb. the data stored on Sam’s cell phonec. Sam’s duffle bagd. all of the above

141. The automobile exception to the warrant requirement:a. requires probable cause to believe that a vehicle contains evidence they may

lawfully seizeb. allows police to remove door panels if the objects for which they have search

authority could be hidden behind themc. is based on the ready mobility of automobiles and the reduced expectation of

privacy of people inside themd. all of the above


15. Search warrants can grow stale if the probable cause that supported their issuance no longer exists.a. Trueb. False

16. Execution of a search warrant is illegal under the Fourth Amendment unless the officer executing it prepares an inventory of the property seized, gives the owner a copy, and returns the warrant, together with a copy of the inventory, to the judge who issued it.a. Trueb. False

17. The legality of a Terry frisk depends on the legality of the stop.a. True

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b. False

18. A search incident to arrest may never precede the arrest even if the officer has probable cause independent of the results of the search.a. Trueb. False

19. When officers have probable cause to believe that a vehicle contains drugs, the motor vehicle exception to the warrant requirement gives them authority to search the vehicle from bumper to trunk and everything inside, including packages inside that belong to passengers.a. Trueb. False

20. Officers are required to follow routine procedures in performing inventory searches to satisfy the Fourth Amendment.a. Trueb. False

21. 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.a. Trueb. False

22. The search incident to arrest exception to the warrant requirement authorizes officers to search the person of the arrested individual only if they have probable cause to believe that the search will produce evidence.a. Trueb. False

23. Police may not search an arrested individual’s person after he or she has been handcuffed and secured.a. Trueb. False

24. Protecting the police department against false claims of loss is one of two reasons for conducting an inventory search. a. Trueb. False

25. Only the suspect or a person who has (or reasonably appears to have) joint use and authority over the premises can give a valid consent to search.a. Trueb. False

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ANSWERS:

1. b 13. a 25. a2. d 14. d3. c 15. a 4. d 16. b5. a 17. a6. d 18. b7. b 19. a8. c 20. a9. b 21. a10. c 22. b11. c 23. b12. d 24. a

Case Studies


Chapter 5Laws Governing Police Surveillance

Objectives

Chapter 5 covers Fourth Amendment and federal statutory regulation of police surveillance. The student should leave this chapter with an understanding of:

1. Fourth Amendment restrictions on non-assisted surveillance.

2. Fourth Amendment restrictions on use of police surveillance technologies, such as electronic tracking devices, video surveillance cameras, narcotics-detection dogs, metal detectors, thermal imagers, pen/trap devices, etc.

3. The federal Wiretap Act’s statutory scheme for regulating interception of protected communications with a device, namely: (1) the definition of an interception; (2) communications covered by the Act, (3) when an interception order must be obtained; (4) steps necessary to obtain court approval; (5) legal controls surrounding the execution of interception orders; and (6) restrictions on disclosure of intercepted communications.

4. Communications surveillance that is not regulated by the Wiretap Act, namely: (1) listening with the unaided ear, (2) interceptions of oral communication where the target lacks a

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reasonable expectation of freedom for interception, and (3) interceptions conducted by or with the consent of a party.

5. Statutory protection for e-mail, voice mail, and text messages under the federal Wiretap Act and the Stored Wire and Electronic Communications and Transactional Records Act and when each statute applies.

6. The Foreign Intelligence Surveillance Act’s scheme for regulating the use of electronic surveillance to collect foreign intelligence.

Student Review Questions (Answers are given for questions that have asterisks beside them.) 1. How was the term “search” defined prior to Katz v. Ohio? (§5.2)

2. How did the Supreme Court define this term in Katz v. United States? What impact did the Katz definition have on the pre-Katz approach?” (§5.2)

3. Congress responded to the Katz decision by enacting the Wiretap Act. What did the Supreme Court say in Katz that made enactment necessary? (§§5.2, 5.8)

4. Three principles central to police surveillance law were introduced in §5.3. What were they? (§5.3)

*5. A police officer crawls over Mary Wanna’s fence and listens under her window as she conducts a series of drug transactions. Mary speaks in a tone loud enough to be heard only by someone standing under her window. Does this violate the Fourth Amendment? Which of the three principles discussed in §5.3 applies?

*6. Police officers rent a motel room adjoining Mary Wanna’s room and conduct surveillance of her conversations by pressing their ears against the common wall. The walls are thin and they are able to hear everything Mary says. Does this violate the Fourth Amendment? Which of the three principles discussed in §5.3 applies? (§5.3)

*7. Police officers rent a motel room adjoining Mary Wanna’s room to conduct surveillance of her conversations but this time the walls are too thick for them to hear. They pay a motel cleaning lady to go into her room, listen as she cleans, and report back everything she hears. She reports back a highly incriminating conversation she overheard. Does this violate the Fourth Amendment? Which of the three principles discussed in §5.3 applies? (§5.3)

8. Technologically assisted surveillance builds on the three principles introduced in §5.3.

Make sure you understand the parallelism. (§5.4)

*9. A new police surveillance device has recently come on the market. Super-Spy X-Ray Binoculars are a surveillance device that enables police to look through walls from a distance of up to 100 yards. While standing on a public street police look through Mary

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Wanna’s walls and observe marijuana plants growing inside. Does this violate the Fourth Amendment? Which of the principles introduced in §5.3 and elaborated upon in §5.4 applies? (§5.4)

*10. Suppose police, while standing on a public street, use ordinary binoculars to looked through an open window in Mary Wanna’s house and see the very same thing. Does this violate the Fourth Amendment? Which of the principles introduced in §5.3 and elaborated upon in §5.4 applies? What if the officer was standing on Mary’s property in an open field outside the curtilage when he used binoculars to view the interior of her home? Would this change anything? (§5.4)

*11. Suppose Judy Judas agrees to wear a concealed radio transmitter when she makes her next drug purchase from Mary Wanna. Mary speaks freely, unaware that Judy is wired for sound and that the police are listening. Does this violate the Fourth Amendment? Which of the principles introduced in §5.3 and elaborated upon in §5.4 applies? (§5.4)

*12. Is a search warrant necessary to: (a) attach a tracking device to the suspect’s vehicle? (b) monitor the movements of the suspect’s vehicle on public roads during a single trip? (c) monitor the movement of a suspect’s vehicle on public roads for a period of 4-weeks? (d) monitor whether a beeper-infected can of chemicals remains in the suspect’s home? (e) track a suspect using the location information and signals given off by his cell phone? (§5.5)

*13. The Whosville Police Department received a report from a highly reliable informant that Mary Wanna is a drug dealer who traffics in narcotics out of her home located at 1420 Fifth Avenue. Police would like to conduct electronic video surveillance to identify the people who regularly come and go and would also like to install silent video surveillance cameras inside her home? (a) Would installing a concealed video surveillance camera on the telephone pole across the street from Mary’s home violate her rights under the Fourth Amendment? (b) Would sneaking into Mary’s home while she is away and installing a concealed video surveillance camera inside her home violate Mary’s rights under the Fourth Amendment? (c) Is there any way the Whosville Police Department may legitimately install a concealed video surveillance camera inside Mary’s home? (§5.7)

14. What is a detection device? Give at least three examples. (§5.7)

15. What reason has the Supreme Court given for holding that a sniff performed by a trained narcotics detection dog does not involve a search? (§5.7)

16. Does requiring airline passengers to undergo magnetometer screening and have their carry-on luggage x-rayed before boarding a plane involve a search? If so, why are they permitted without individualized suspicion or a search warrant? (§5.7)

17. What four things are necessary under the Wiretap Act for an interception to occur? (§5.9)

*18. What three kinds of communications are protected by the Wiretap Act? Which kind was

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involved in Olmstead v. United States? In Katz v. United States? (§§5.2, 5.4)

19. What is necessary for an oral communication to be protected under the Wiretap Act? (§5.9)

*20. Mary Wanna’s business has prospered and she now has an office with a waiting room and secretary. Officers Harris and West went to Mary’s office and asked to speak with her. Mary’s secretary announced their presence and returned, telling them they would have to wait a few minutes. She then departed for lunch. While sitting in Mary’s waiting room, the officers noticed that a light on the secretary’s extension phone was blinking. They picked up the extension phone and listened to Mary’s telephone conversation. Did they violate the Wiretap Act? (§5.9)

21. The Wiretap Act contains procedural safeguards that go beyond Fourth Amendment requirements for an ordinary search warrant in at least five different ways. Identify them. (§5.10)

22. What three areas of communications surveillance fall outside the scope of the Wiretap Act? (§§5.11-5.14)

*23. Police officers rent a motel room adjoining Mary Wanna’s room to conduct communication surveillance. Mary is cautious and speaks only in a whisper. Frustrated at not being able to hear, police place a stethoscope against the common wall and listen through the stethoscope. The stethoscope amplifies the sounds sufficiently that the police are able to hear everything Mary’s whispers. Does this violate the Wiretap Act? (§§5.9, 5.12, 5.13)

*24. The backseats of all Whosville Police Department squad cars are equipped with concealed microphones and tape recorders. Police arrested Mary Wanna and one of her associates during a drug bust, placed them in the backseat of a squad car, and took the long route to the police station. By the time the patrol car arrived at the police station, there was no need for a custodial interrogation. Mary had said it all. Did the Whosville Police Department violate Wiretap Act? (§5.13)

*25. In §5.14, you learned that a wiretap order is not required when the interception is conducted by or with the consent of a party to the conversation. Which of the three principles discussed in § 5.3 forms the basis for this exception. (§§5.3, 5.14).

*26. Which of the following examples fall within the consent exception to the Wiretap Act? (§5.14)

a. Judy Judas, a police informant, engages Mary Wanna in an incriminating conversation while wearing a concealed radio transmitter and tape recorder.

b. Judy Judas consents to allow the police to place a tap on her own telephone line so that they can monitor incoming calls.

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c. Judy Judas consents to allow the police to listen on her extension phone while she places a call to Mary Wanna.

d. Mary Wanna, while in prison, calls Judy Judas and threatens her life for sending her there. Her call was monitored and recorded. There was a sign over the phone stating calls made from prison phones are monitored.

27. When are email, voice mail, and text messages protected by the Wiretap Act? The Stored Wire and Electronic Communications and Transactional Records Act? What is necessary to obtain access to email during the first 180 days of storage? After 180 days? (§5.15)

28. What is a pen register device? A trap-and-trace device? What legal steps are required before installing and using them? (§5.16)

ANSWERS:

5. Yes, special protection exists for the home and the surrounding buffer zone known as the curtilage. Police cannot enter in search of evidence without a search warrant. ((Florida v. Jardines (Part II); Powell v. State (Part II))

6. No. Anything that can be detected through any of an officer’s natural senses from a place the officer has a right to be is fair game.

7. No, the Fourth Amendment does not protect information voluntarily disclosed to or in the presence of a third party.

9. Yes, special protection for the home. Police may not use high-tech gadgetry, not in general public use, to learn about activities inside a home that are not visible from the outside. (Kyllo v. United States (Part II))

10. No, police surveillance of matters in open view is not a search, even when they use sense enhancing devices that are generally available on the market to augment their senses. It would not matter if police used the device while standing in an open field on the suspect’s property because open fields carry no Fourth Amendment protection.

11. No, the Fourth Amendment does not protect information voluntarily disclosed to or in the presence of a third party.

12. (a) yes (Jones v. United States (Part II) (b) a warrant is not required to monitor’s vehicles travels for week, but the Fourth Amendment is violated if the tracking device is attached to the suspect’s property without a warrant (c) 5-justices took the position in Jones that a warrant is required for long term surveillance of a suspect’s public movements? (d) Yes. In Karo v. United States, discussed in § 5.5 (B) of the text, the Supreme Court ruled that police may not continue monitoring the location of a beeper after the object to which it is attached has been withdrawn from public view and taken

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inside a private residence without a search warrant. (e) tracking a suspect using the location information and signals given off by his cell phone does not violate the Fourth Amendment because this information has been voluntarily disclosed to the service provider (United States v. Skinner (Part II)).

13. (a) Installing a concealed video surveillance camera on the telephone pole across the street from Mary’s home would not violate her rights under the Fourth Amendment because police surveillance of matters in open view is not a search; however, long-term surveillance of a suspect’s back yard located inside the cartilage might violate the Fourth Amendment. (United States v. Anderson-Bagshaw (Part II)) (b) Sneaking into Mary’s home to install concealed video surveillance equipment while she is away would definitely violate her rights under the Fourth Amendment. (c) Police need to obtain a video surveillance search warrant. Most jurisdictions require heightened procedural safeguards analogous to the Wiretap Act for search warrants that authorize installation and use of video surveillance equipment in locations protected by the Fourth Amendment.

18. In Olmstead, the intercepted communication was a wire communication; in Katz, the intercepted communication was an oral communication. The recording device captured the words Katz spoke into the phone, not the communication that traveled over the wires.

20. Yes. This conduct constitutes an interception of a protected communication because police used a device (an extension phone) to obtain access to the contents of a wire communication while the communication was being transmitted.

23. Yes, police used a device (a stethoscope) to obtain access to an oral communication uttered by a person exhibiting a reasonable expectation that such communication is not subject to interception under circumstances justifying such expectation.”

24. No. Oral communications are protected only when the target has a justifiable expectation that the communication will not be intercepted. No such expectation exists in the back seat of police cars. (United States v. Turner (Part II))

25. Information disclosed to a third party or in a third party’s presence is not protected by the Fourth Amendment.

26. The consent exception applies to all four.

Multiple-Choice Questions(The student multiple-choice questions test the same information that will be covered on the real exam, though questions will not be same. Consequently, it will benefit you to figure out why your answers do not match the answer key for answers that do not.)

1. In which of the following situations is a search warrant necessary?a. to attach a tracking device to the undercarriage of the suspect’s vehicle while it is

parked on a public street

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b. to install a miniature motion-activated video camera on the suspect’s garage doorc. to take drug-detection dog onto the suspect’s front porch to perform a sniffd. all of the above

2. A wiretap order is not necessary to tape record a conversation:a. when the officer is a party to the conversationb. the conversation takes place in the back seat of a squad carc. the conversation is audible to the officerd. in any of the above

3. Police need a search warrant to:a. use advanced technologies to obtain information about activities inside a home

that are not visible from the outsideb. install a video surveillance camera in the hotel room the suspect is renting while

he is away c. engage in long-term electronic surveillanced. all of the above

4. The Wiretap Act does not protect:a. conversations between the target and an informantb. conversations overheard naturallyc. telephone calls where notice is given that they may be monitoredd. any of the above

5. A FISA surveillance order must be obtained to conduct electronic surveillance of the activities of:a. domestic terrorist organizationsb. foreign powers and agents of foreign powers operating inside the United Statesc. foreign powers and agents of foreign powers operating abroadd. all of the above.


6. Police do not need a search warrant to use to use publicly available surveillance devices like flashlights, telescopes, and surveillance cameras to enhance their ability to observe matters in the open view of the public.a. Trueb. False

7. The secret recording of the suspect’s side of a cell phone conversation by a government agent standing next to him in a grocery line violates the Wiretap Act.a. Trueb. False

8. Customer account records maintained by banks are not protected by the Fourth Amendment.a. True

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b. False

9. A search warrant is required to install a surveillance camera on a utility pole in the parking lot front of the suspect’s rented storage locker, even with the storage facility owner’s consent.a. Trueb. False

10. 1A search warrant is necessary to install a pen/trap device on the suspect’s telephone line.a. Trueb. False

11. E-mail messages are protected by the Wiretap Act during the first 24 hours after they are sent.a. Trueb. False

12. Past cell phone use and location records can be obtained from the suspect’s cell phone provider using the Stored Wire and Electronic Communications and Transactional Records Act.a. Trueb. False

13. Dog sniffs may be performed in any location where a police officer is lawfully present.a. Trueb. False

ANSWERS:

1. d 8. a2. d 9. b3. d 10. b4. d 11. b5. b 12. a6. a 13. a7. b

Case Studies


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Chapter 6Interrogations and Confessions

Objectives

Confessions provide powerful evidence of guilt. However, they are not usable for this purpose if they are the product of a police violation of the suspect’s constitutional rights. This chapter discusses the interrogation requirements that stem from the Fourth, Fifth, Sixth, and Fourteenth Amendments. The main objective of this chapter is to instill an appreciation of what police must do or refrain from doing in order to procure an admissible confession. The student should emerge from this chapter with a thorough understanding of:

1. The kinds of interrogation practices that can lead to suppression of a confession under the free and voluntary requirement.

2. Practices that can lead to suppression under the Fourth Amendment.

3. When the McNabb-Mallory rule applies and what police must do to comply with the rule.

4. When the Miranda rule applies and what police must do to comply with the rule.

5. When the Sixth Amendment right to counsel applies and what police officers must do (or refrain from doing) to comply with this requirement.

Student Review Questions (Answers are given at the end for questions that have asterisks beside them)

1. Confessions may be excluded from criminal trials if they are obtained in violation of any one of five different requirements. List and briefly summarize them. (§6.1)

2. Which of the five requirements discussed in this chapter are in effect during Phase 1 (investigative questioning of suspects who are not in custody)? (Figure 6.1)

3. Which of the five requirements discussed in this chapter are in effect during Phase 2 (interrogation of suspects who are in police custody but have not yet been formally charged)? (Figure 6.1)

4. Which of the five requirements discussed in this chapter are in effect during Phase 3 (interrogations conducted after formal charges have been filed)? (Figure 6.1)

5. Confessions that result from (1) improper government conduct that (2) overcomes the suspect’s free will are considered involuntary. (This is another way of stating the test in Figure 6.3.)

a. What is the constitutional basis for excluding involuntary confession?

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b. What three purposes does exclusion of involuntary confessions serve?

c. What kinds of interrogation tactics are regarded as improper? (Be as specific and complete as possible. Reading the footnotes will help you identify interrogation practices regarded by courts as improper.)

d. What two factors in addition to improper interrogation practices do courts consider in deciding whether a confession is involuntary? (§6.2)

6. Which party has the burden of proof on the question of voluntariness—the prosecution or the accused? What must that party prove? (§6.2)

7. The Fourth Amendment exclusionary rule requires suppression of confessions that are “causally connected” to a violation of a suspect’s Fourth Amendment rights (i.e., an illegal stop, arrest, or search). What three factors do courts consider in determining whether a confession was “causally connected” to an earlier violation? (§6.3)

8. Once a suspect has been placed under formal arrest or taken into custody, two new requirements go into effect. What are they? (§6.4)

9. State the McNabb-Mallory rule. (§6.5)

a. What is the legal basis for this rule--the Fifth Amendment or something else?

b. What effect did §3501 of the Omnibus Crime Control and Safe Streets Act have on the McNabb-Mallory rule?

c. Is McNabb-Mallory rule binding on state courts?

10. What is the constitutional basis for the Miranda rule? (§6.6)

11. What two things are necessary for the Miranda rule to apply? (§§6.6, 6.7)

12. When is a suspect who has not been placed under formal arrest regarded as being in “custody” for Miranda purposes? Is the test of custody subjective or objective? What factors do courts considered in deciding whether a suspect is in Miranda custody? (§6.7)

13. Are warnings required when a suspect is questioned by a police undercover agent? Explain why or why not. (§6.7)

14. Are warnings required during routine traffic stops? During Terry stops? Explain why or why not. (§6.7)

15. Are warnings required during interrogations conducted by private detectives and security officers? (§6.7)

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16. How is “interrogation” defined for Miranda purposes? What is the test for whether words or actions, not involving an express question, are the “functional equivalent?” Give several examples of police words or actions that constitute the functional equivalent of an express question? (§6.7)

17. What are booking questions? Why are Miranda warnings not required before asking routine booking questions? (§6.7)

18. What is the “public safety” exception? Give an example of a situation where this exception would apply. (§6.7)

19. Who besides police officers are required to give Miranda warnings? (§6.7)

20. Recite the four warnings required by the Miranda rule? (§6.8)

21. What must police do obtain to a valid waiver of Miranda rights? (§6.8)

a. Must the waiver be in writing?

b. Must the waiver be articulated in express language? (Berghuis v. Thompkins (Part II))

c. Must the waiver be obtained before questioning can begin? (Berghuis v. Thompkins (Part II))

d. What three things are necessary for an implied waiver? (Berguis v. Thompkins (Part II))

22. What does a suspect have to do to invoke his Miranda rights? (§6.8)

23. Under what three circumstances may police resume questioning after a suspect has invoked his right to counsel? (§6.8)

24. Under what two circumstances may police question a suspect about the same offense after the suspect has invoked the right to remain silent? Under what circumstances may police question a suspect who has invoked the right to remain silent about a different offense? (§6.8)

25. When does the Sixth Amendment right to counsel attach? What four procedural events generally signify the initiation of criminal proceedings? (§6.9)

26. What standard do courts use to determine when a defendant under formal charges is entitled to the presence of counsel? How does this standard differ from the Fifth Amendment custodial interrogation standard? (§6.9)

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27. What does the phrase “offense-specific” mean? Does the Sixth Amendment right to counsel apply when a defendant under formal charges is interrogated about a different but factually related offense? (§6.9)

28. What do police have to do to obtain a valid waiver of the Sixth Amendment right to counsel? (§6.9)

29. Contrast the Miranda and the Sixth Amendment rights to counsel, explaining how they differ. (§6.9)

30. What is the difference between using a confession as evidence of guilt and using it for impeachment? What three things are necessary to use an inadmissible confession for this impeachment? (§6.10)

31. What is derivative evidence? Give several examples (§6.11)

32. Is derivative evidence admissible when it derives from a confession obtained in violation of the: (1) due process free and voluntary requirement? (2) Fourth Amendment search and seizure clause? (3) Miranda rule? (4) Sixth Amendment right to counsel? (§6.11)

33. What constitutional provision prohibits introduction of one accomplice’s confession as evidence against another unless the accomplice who gave the confession is available for cross examination at the other’s trial? (§6.12)

34. What is the corpus delicti requirement? (§6.13)


1. The legal hurdles that confessions must pass in order to be considered constitutional stem from the following group of amendments: a. First, Fifth, Sixth, and Fourteenth b. Fourth, Fifth, Sixth, and Fourteenth c. Fifth, Sixth, Tenth, and Fifteenth d. Fourth, Fifth, Tenth, and Fourteenth

2. What begins when police officers place a suspect under formal arrest or take a suspect into custody? a. prosecutorial stage b. Terry stage c. McNabb-Mallory stage d. custodial interrogation stage

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3. The free and voluntary rule requires suppression of confessions:a. obtained by lying to the suspect that his confederate confessed and named him as the

trigger manb. obtained by interrogating a suspect nonstop for 36 hours without sleepc. that result from a delusional mental illness that robs the suspect of the ability to make a

rational choice d. all of the above

4. Miranda warnings are not required:a. during traffic stopsb. to elicit biographical information needed for bookingc. to question a suspect who comes to the police station on his own and is told he is free to

leave at any timed. any of the above

5. The following case established the “fruit of the poisonous tree” doctrine: a. McNabb v. United States b. Miranda v. Arizona c. Wong Sun v. United States d. Mallory v. United States

6. Whether a confession given after an illegal arrest is admissible depends on: a. length of time between the arrest and the confessionb. presence of intervening circumstancesc. the purpose and flagrancy of the police misconductd. all of the above

7. Police must observe Miranda procedural requirements only when:a. they interrogate a suspect in custodyb. the interrogation takes place at the police stationc. the suspect has been charged with the offense that is the subject of the interrogationd. all of the above

8. Police may interrogate a suspect who had invoked the right to remain silent:a. if the suspect signs a written waiver after being given a fresh set of warningsb. after a 14-day break in custodyc. if counsel is present when the interrogation resumesd. all of the above

9. Confessions given by an accomplice implicating the accused are not admissible as evidence against the accused unless:a. the corpus delicti requirement is satisfiedb. the accomplice passes a lie detector test c. the accomplice is available for cross-examination at the trial of the accusedd. the accomplice was free of custody when he confessed

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10. In which of the following situation(s) would a suspect be considered in custody for Miranda purposes?a. while being questioned during an investigatory stopb. while being transported in a patrol car to the police station following his arrestc. while being questioned in a jail cell by a police undercover agent posing as an inmated. all of the above

11. Waivers of Miranda rights are not effective unless:a. warnings were administered no more than six hours before the confessionb. the suspect signs a written “advice of rights and waiver” formc. the waiver is knowingly, intelligently, and voluntarily givend. all of the above

12. There are several differences between the Miranda (Fifth Amendment) and the Sixth Amendment right to counsel. These differences include:a. The Miranda right to counsel is offense-specific; the Sixth Amendment right to counsel

is not.b. The Miranda right to counsel requires custody; the Sixth Amendment right to counsel

does not.c. The Miranda right to counsel may be waived, while the Sixth Amendment right to

counsel may not.d. The Miranda right to counsel is violated when incriminating statements are elicited by

police undercover agents and informants; the Sixth Amendment right to counsel is not.

13. The Sixth Amendment right to counsel:a. applies only during custodial interrogationsb. requires police to notify the attorney of a person under indictment before questioning the

personc. requires police to obtain a waiver of the Sixth Amendment to counsel before questioning

a person under indictment about any offensed. none of the above

14. A defendant under formal charges may give a valid waiver of the Sixth Amendment right to counsel:a. only during contacts with the police that he or she initiatesb. only after consulting with an attorneyc only if the waiver is in writingd. none of the above

15. An inadmissible confession may be used for purposes of impeachment only if:a. the confession was freely and voluntarily givenb. the defendant takes the witness stand at his or her trialc. the defendant gives testimony at the trial that is contrary to his or her pretrial confessiond. all of the above are present

16. The fruit of the poisonous tree doctrine requires suppression of evidence derived from

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confessions obtained in violation of the:a. the Fourth Amendmentb. McNabb-Mallory rulec. Miranda ruled. any of the above


17. A confession must derive from improper government activity to be considered involuntary in the constitutional sense. a. True b. False

18. Police may not interrogate a suspect who refuses to sign an advice of rights and waiver form. a. True b. False

19. Congress modified the McNabb-Mallory rule by creating a six-hour safe harbor period. Confessions cannot be suppressed because of unnecessary delay in arraignment unless they are obtained more than six hours after an arrest on federal charges.a. True b. False

20. The McNabb-Mallory rule is based on the Fifth Amendment.a. Trueb. False

Matching Questions (Match the phrase or term in the first column with the associated phrase or term in the second column. No phrase or term in the second column can be used more than once.

21. Miranda rule a. Impeachment

22. Fruit of poisonous tree b. Missouri v. Seibert

23. Confession of an accomplice c. Purpose and flagrancy of the violation

24. Questioning a suspect who has d. Rule 5(a) of the Federal Rules of Criminal invoked the right to counsel Procedure

25. Question-first interrogation strategy e. Sixth Amendment right to confront adverse witnesses

26. Inadmissible confession f. Body of the crime

27. McNabb-Mallory rule g. 14-day break in custody

28. Corpus delicti h. Fifth Amendment

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29. Fourth Amendment i. Derivative evidenceexclusionary rule

30 False promise of leniency j Involuntary

ANSWERS:

1. b 11. c 21. h2. d 12. b 22. i3. b 13. d 23. e4. d 14. d 24. g5. c 15. d 25. b6. d 16. a 26. a7. a 17. a 27. d8. b 18. b 28. f 9. c 19. a 29. c10. b 20. b 30. j

Case Studies


Chapter 7Compulsory Self-Incrimination

Objectives

This chapter discusses two constitutional limitations on the government’s power to compel citizens to furnish self-incriminating evidence. The Fifth Amendment is concerned with testimonial self-incrimination (i.e., compulsion to disclose one’s private thoughts). Its application during custodial interrogations was discussed in Chapter 6. This chapter provides a more complete analysis of the Fifth Amendment. The second limitation stems from the Fourth Amendment prohibition on unreasonable searches and seizures. Evidence taken from a suspect’s body is called physical evidence. Compulsory production of self-incriminating physical evidence requires a restriction of the suspect’s freedom of movement (i.e., a seizure of his person) and sometimes also an invasion of his privacy or bodily integrity. Concern for these interests is addressed by the Fourth Amendment. This chapter builds on the Fourth Amendment principles introduced in Chapters 3 and 4. The student should leave this chapter with an understanding of:

1. The constitutional principles that regulate compulsory production of self-incriminating testimony and physical evidence;

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2. The range of proceedings in which protection of the Fifth Amendment privilege against self-incrimination may be invoked, and how it is invoked and waived;

3. The requirements needed to trigger protection of the Fifth Amendment privilege against self-incrimination: compulsion, testimony, and self-incrimination;

4. The distinction between appearance evidence and bodily evidence and the range of police procedures that involve each;

5. Fourth Amendment requirements for compulsory production of appearance evidence;

6. Fourth Amendment requirements for highly intrusive bodily searches (i.e., searches that extend below the surface of the body, result in extraction of bodily tissues or fluids, or involve significant pain, physical discomfort, or humiliation), including when search warrants are required and when they are excused by exigent circumstances; and

7. Fourth Amendment requirements for strip searches and body cavity searches.

Student Review Questions (Answers are provided at the end for questions that have asterisks beside them.)

1. What Amendment protects against testimonial self-incrimination? (§7.1)

2. Which Amendment is concerned with bodily self-incrimination? (§7.1)

3. In what legal settings besides criminal trials can the Fifth Amendment be invoked? (§7.2)

4. What is the principal difference between the right to remain silent and the privilege not to answer incriminating questions? (§7.2)

5. In what legal settings do citizens enjoy the right to remain silent? The privilege not to answer incriminating questions? (§7.2)

6. What three requirements are necessary to trigger protection of the Fifth Amendment privilege against self-incrimination? (§7.3)

7. How is the term “testimony” defined? (§7.3(A))

8. How is the term “compelled” defined? (§7.3(B))

9. When is testimony considered to be “self-incriminating”? (§7.3(C))

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*10.Indicate whether the Fifth Amendment privilege against self-incrimination applies and, if not, which of the three requirements are missing.

______ a. Seizing a drug dealer’s business records under a search warrant and using them against him at his trial. (§7.3(B)

______ b. Requiring a person under arrest to answer booking questions. (§7.3(C))

______ c. Requiring a person under arrest to appear in a lineup. (§§7.3(A), 7.7, 7.8)

______ d. Requiring a person under arrest to appear in a lineup and repeat two phrases that the robber is reputed to have said: “This is a holdup,” and “Put all the money in a bag.” (§§7.3(A), 7.7, 7.8)

*11.Indicate whether Sam enjoys the right to remain silent, the privilege not to answer the specific question asked, or neither privilege in each of the following situations. (§§7.2, 7.3)

a. Sam is arrested for driving under the influence of alcohol, taken to the police station, and asked questions about his name, address, Social Security number, date of birth, height, and weight for purposes of booking.

b. Sam is arrested for driving under the influence of alcohol and taken to the police station where he is questioned about whether he has been drinking.

c. Sam is subpoenaed to appear before a federal grand jury investigating whether he is guilty of tax evasion.

d. Sam is subpoenaed to appear before a federal grand jury and provide testimony about his sister Mary’s criminal activity.

*12.There are several situations in the which a person may be compelled to answer questions concerning his own criminal activity. Identify them and explain why the Fifth Amendment privilege against self-incrimination is inapplicable? (§7.3(C))

13. What is the difference between absolute immunity and use (including derivative use) immunity? (§7.3(C))

14. How is the privilege against self-incrimination invoked by a defendant at his/her criminal trial? How is the privilege against self-incrimination invoked by a witness who is not the defendant? (§7.4)

15. Identify the only situation in which the prosecutor can examine a criminal defendant on the witness stand during his trial? (§7.4(C))

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16. In what proceedings are judges, jurors, and hearing officer not allowed to infer guilt from the fact that a person invokes the Fifth Amendment? In what proceedings are they permitted to do so? (§7.5)

17. When does the Fifth Amendment excuse people from filing mandatory government reports that could call attention to their criminal activity? (§7.6)

18. What protection does the Fifth Amendment provide against the government’s use of a suspect’s body as a source of evidence? (§§7.1, 7.7, 7.8(A); Schmerber v. California (Part II))

*19.George was arrested and taken to the police station where he was given a field sobriety test during which he was required to raise one foot approximately six inches off the ground and, while in that position and looking at that foot, to count backwards from 40 to 1. George made numerous mistakes, supporting the inference that he was too intoxicated to perform the task. At his trial, George moved to suppress evidence of his performance on the field sobriety test on the grounds that the evidence was obtained in violation of his Fifth Amendment privilege against self-incrimination. The trial judge denied George’s motion. Why? (§§7.3(A), 7.7, 7.8(A); Schmerber v. California (Part II)).

*20.Are Miranda warnings required before compelling suspects to submit to the following procedures? Explain why or why not.

a. Fingerprinting

b. Photographing

c. Providing a handwriting specimen

d. Participating in a lineup(§§ 7.7, 7.8(A); Schmerber v. California (Part II))

21. What three interests that people have in their bodies does the Fourth Amendment protect (§7.7)

22. What is appearance evidence? What interest or interests, identified in Question 21, are implicated by compelled participation in procedures that yield appearance evidence? What is bodily evidence? What interest or interests are implicated by compelled participation in procedures that yield bodily? (§§7.7, 7.8)

*23.Indicate whether the following procedures yield appearance or bodily evidence:

a. Photographing

b. Participation in a lineup

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c. Strip searches

d. Compulsory submission of a handwriting sample

e. Compulsory submission of a semen sample

f. Drawing blood

g. Fingerprinting

h. Performing a field sobriety test

i. Swabbing incriminating residue from under a suspect’s fingernails

j. Reaching into a suspect’s mouth to prevent him or her from swallowing evidence

(§§7.7, 7.8, 7.9)

*24.What does the Fourth Amendment require before police can compel suspects to participate in a procedure that yields appearance evidence? (§7.8; Figure 7.4)

25. State the four-factor test established in Schmerber v. California for when highly intrusive bodily searches may be performed to retrieve evidence? (§7.9)

26. When are police excused from obtaining a search warrant before having blood drawn to test for alcohol intoxication? (§7.10; Missouri v. McNeely (Part II))

27. What does the Fourth Amendment require for investigatory strip searches? Jail intake strip searches? Manual body cavity searches? (§7.11)

ANSWERS:

10. a. The Fifth Amendment does not apply because the defendant was not compelled to prepare the incriminating business records the government seized. Although he was compelled to turn them over to the government, the relevant time for determining whether a person has been compelled to incriminate himself in violation of the Fifth Amendment is when the writing was originally created. The Fifth Amendment affords no protection for writings that are created voluntarily.

b. The Fifth Amendment does not apply because the answers are not incriminating.

c. The Fifth Amendment does not apply because the evidence compelled is physical and does not involve testimony.

d. The answer is the same as (c). The suspect was compelled to exhibit his voice characteristics for purpose of identification and not to reveal anything he knew.

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Compulsion to exhibit voice characteristics involves physical evidence, not testimony. Consequently, the Fifth Amendment privilege against self-incrimination does not apply.

11. a. Neither protection applies. The questions asked were booking questions. The Fifth Amendment does not apply to booking questions because they do not require an incriminating response.

b. The interview constituted a custodial interrogation. Sam has the right to remain silent during custodial interrogations and at his criminal trial and sentencing hearing.

c. Sam is privileged not answer questions that call for an incriminating response.

d. The Fifth Amendment cannot be invoked unless the questions relate to the person’s own criminal activity, not to the criminal activity of someone else.

12. A person cannot invoke the Fifth Amendment if he has already been tried for the crime to which the questions, is granted immunity from prosecution, or the statute of limitation has run on the offense because in none of these situations is his testimony incriminating.

19. Field sobriety tests do not require a person to reveal anything he knows and, consequently, do not involve testimony. They test physical characteristics (reflexes, dexterity, balance, etc.) The Fifth Amendment affords no protection from compulsion to exhibit physical characteristic. Miranda warnings are, accordingly, not required before administering field sobriety tests.

20. No. All four procedures involve appearance evidence. Since the Miranda rule is based on the Fifth Amendment, warnings are not required before compelling suspects to participate in procedures that yield appearance evidence.

23. The procedures in a, b, d, g, and h yield physical evidence. The procedures in c, e, f, i, and j yield bodily evidence.

24. To obtain appearance evidence, police need grounds to seize the suspect and detain him long enough to perform the procedure. Appearance evidence procedures require no justification beyond grounds for arrest.


1. To be protected by the Fifth Amendment, statements must be:a. compelledb. testimonialc. capable of being used against the maker in a criminal proceedingd. all of the above

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2. The Fifth Amendment affords no protection against compulsion:a. to testify under a grant of immunityb. to testify about crime the witness has already been convicted ofc. to furnish a handwriting specimend. any of the above

3. The Fifth Amendment prevents the prosecutor from:a. calling the defendant as a witnessb. cross-examining a defendant who chooses to testify at his trialc. requiring the defendant to read from a newspaper at the trial so that the victim can make a

voice comparisond. any of the above

4. The Fourth Amendment does not require anything beyond a lawful arrest to compel a suspect to:a. participate in a lineupb. furnish a handwriting samplec. take a field sobriety testd. any of the above

5. The granting of use (including derivative use) immunity:a. bars the government from prosecuting for crimes revealed during compelled testimonyb. is sufficient to compel testimony over a claim of privilegec. must be approved by a high-ranking official within the police department d. all of the above

6. Miranda warnings must be administered to suspects who have been taken into custody before:a. photographing and fingerprinting themb. requiring them to participate in a lineupc. interrogating themd. doing any of the above

7. The following are types of bodily evidence except for: a. field sobriety testb. blood testc. manual body cavity search d. X-rays

8. A search warrant is not required before: a. requiring a suspect to undergo a manual body cavity searchb. requiring a suspect to furnish a semen samplec. rubbing a cotton swab over the suspect’s skin to remove incriminating residues d. performing any of the above

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9. Jail intake strip searches:a. require a search warrantb. require reasonable suspicion that the person searched has drugs or weapons hidden under

his clothingc. may not be performed on people arrested for a traffic violationd. none of the above

10. The Fifth Amendment privilege against self-incrimination is violated by:a requiring the suspect to appear in a lineupb. instructing jurors that they may infer guilt from the defendant’s failure to take the

witness stand and deny the chargec. seizing a drug dealer’s business records under a search warrant d. all of the above

11. The Fifth Amendment privilege against self-incrimination applies during:a. parole revocation hearingsb. police disciplinary actionsc. grand jury proceedingsd. all of the above

12. Criminal defendants have the “right to remain silent” during:a. custodial interrogationsb. grand jury proceedingsc. parole revocation hearingsd. all of the above


13. A witness who invokes the Fifth Amendment is automatically immune from answering.a. Trueb. False

14. The Fifth Amendment privilege against self-incrimination may only be invoked in criminal cases.a. Trueb. False

15. The natural metabolism of alcohol in the bloodstream creates exigent circumstances that automatically excuse the need for a search warrant before having blood drawn to test for intoxication.a. Trueb. False

ANSWERS:

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1. d 9. d2. d 10. b3. a 11. d4. d 12. a5. b 13. b6. c 14. b7. a 15. b8. c

Case Studies


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Chapter 8Right to Counsel

Objectives

This chapter covers the Sixth Amendment right to counsel and constitutional restrictions on pretrial witness identification. There are three segments. The first segment covers the main features of the Sixth Amendment right to counsel. The second discusses the restrictions that the Sixth Amendment right to counsel imposes on the police. The last segment deals with Fourth, Fifth, Sixth, and Fourteenth Amendment restrictions on pretrial witness identification.

After completing this chapter, the student should emerge with a working knowledge of:

1. The four main features of the Sixth Amendment right to counsel, namely: (1) the right of indigent defendants to appointment of counsel, (2) the right to counsel in pretrial and post-trial proceedings, (3) the defendant’s right of self-representation, and (4) the right to effective assistance of counsel.

2. Sixth Amendment restrictions on the conduct of the police, including:

a. Pretrial encounters during which the accused is entitled to have a lawyer present;

b. Precautions police must take to secure a valid waiver of the Sixth Amendment right to counsel;

c. The degree to which police must permit defense attorneys to play an active role during police procedures in which the defendant has a right to have a lawyer present;

d. Conduct considered to be an improper intrusion into the attorney-client relationship.

3. Constitutional restrictions on pretrial witness identification imposed by:

a. the Sixth Amendment right to counsel,

b. the Fourth Amendment search and seizure clause, and

c. the Fifth and Fourteenth Amendment due process clauses

Student Review Questions (Answers are given at the end for questions that have asterisks beside them)

1. What two functions does the Sixth Amendment right to counsel serve in our adversary system of criminal justice? (§8.1)

2. What is name of the first case that recognized a limited right to court-appointed counsel? What is the name of the case that guaranteed this right to all criminal defendants facing

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felony charges in state criminal proceedings? When are indigent criminal defendants entitled to court-appointed counsel when they are tried for a misdemeanor? The answer to the last question is tricky so make sure you understand it. (§8.2)

3. What three characteristics must pre- or post-trial events have to be considered “critical stages” in a criminal prosecution? (§8.3(A))

4. What four events signal the initiation of a criminal prosecution? (§8.10(A))

5. List all pre and post-trial judicial proceedings and investigative encounters regarded as critical stages in a criminal prosecution. (§8.3)

6. When do criminal defendants have a Sixth Amendment right to have counsel present during police investigative proceedings like interrogations? Lineups? Photographic identifications? (§§8.3, 8.10)

7. What inquiries must a trial judge make before allowing a criminal defendant to waive the right to counsel and represent him- or herself at trial? (§8.4)

8. What two prerequisites must a defendant establish to have his or her conviction overturned on the basis of ineffective assistance of counsel? (§8.5)

9. What two additional restrictions does the Sixth amendment place on the conduct of police after criminal proceedings are initiated? What do police have to do to secure a valid waiver of the Sixth Amendment right to counsel? (§8.6)

10. List the three procedures police use to for witness identification and describe the purpose for which each is used. (§8.7)

11. State the four constitutional provisions that apply to pretrial witness identifications and explain how each one applies. (§8.7)

*12.Which of the following witness identifications is subject to suppression under the Fourth Amendment exclusionary rule? (§8.7)

a. Police arrest Sam without probable cause and compel him to participate in a lineup. An eyewitness identifies him.

b. Police detain Sam for investigation without reasonable suspicion and take him to the crime scene for a showup identification where an eyewitness identifies him.

c. Police detain Sam for investigation without reasonable suspicion and photograph him. An eyewitness identifies him from the photograph.

d. Police detain Sam for investigation based on reasonable suspicion and compel him to accompany them to the police station for a lineup. A witness identifies him.

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*13.What two-part test does the process clause impose for deciding when testimony about a positive pretrial identification is too unreliable to be used as evidence? (§8.9)

*14.Which identification procedures can be challenged under this test? (§8.9)

15. Which identification procedure is the most inherently suggestive? When is it appropriate for police to use this procedure? (§8.9(A))

16. Give examples of impermissibly suggestive conduct that police should avoid during lineups? Showups? Photographic identifications?

*17.The fact that a witness has been exposed to an impermissibly suggestive identification procedure does not automatically contaminate the witness’ testimony. Courts approach the problem in two stages. They first inquire whether the witness was exposed to an impermissibly suggestive procedure. If the answer is “yes,” they next inquire whether the exposure created a substantial risk of misidentification. What five factors do courts consider in deciding whether the witness’ exposure to suggestive influences caused by the police created a substantial risk of misidentification? (§8.9)

18. When does a suspect have a Sixth Amendment right to have counsel present during witness identification proceedings? Be precise both as to the procedures covered and the stage in the prosecution for this protection to apply.

ANSWERS:

12. Suppression is required under the Fourth Amendment exclusionary rule in all four examples. Sam was illegally seized in (a), (b) and (c). Though Sam was properly detained for investigation in (d), putting him in a police station lineup exceeded the level of intrusiveness allowed during Terry stops and converted the investigative encounter into an unconstitutional arrest.

13. The due process clause prohibits admission of testimony about pretrial identifications obtained under (1) impermissibly suggestive circumstances that (2) create a substantial risk of misidentification. Determination that the identification procedure was conducted in an impermissibly suggestive manner does not end the inquiry. Courts consider five factors in deciding whether the impermissibly suggestive procedures tainted the identification by creating a substantial risk of misidentification: 1. The opportunity the witness had to view the perpetrator at the time of the crime; 2. the witness’s degree of attention, 3. the accuracy of the prior description, 4. the level of certainty demonstrated at the confrontation, and 5. the time between the crime and the confrontation.

14. The due process clause prohibition on unreliable testimony applies to all three identification procedures; no distinction is made based on whether they occurred before or after initiation of prosecution.

17. The answer is contained in 13 (above).

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1. Gideon v. Wainwright was a milestone in American constitutional jurisprudence because it was the first case to: a. recognize an obligation on the part of the government to provide counsel for

indigent criminal defendants b. articulate the “critical stage” conceptc. hold that the Sixth Amendment requires states to appoint counsel for indigent

defendants facing felony charges d. hold that indigent defendants have a right to counsel during lineups

2. Sam was placed on trial for shoplifting, a misdemeanor with a penalty of up to one year in jail and/or a $500 fine. Before the trial began, he told the judge, “I want a lawyer but I can’t afford one. The judge replied, “Things are bad everywhere, Sam. The city can’t afford to provide you with one either.” Sam was tried without a lawyer, convicted, and fined $300. Which of the following accurately states the right of indigent defendants to appointed counsel in misdemeanor trials? a. counsel must be made available in all misdemeanor trialsb. counsel must be made available only for misdemeanors that carry jail timec. indigent criminal defendants may be tried for a misdemeanor without counsel so

long as they are not sentenced to incarcerationd. indigent criminal defendants facing misdemeanor charges may not be sentenced

to serve more than 30 days in jail unless counsel is appointed to represent them

3. George was indicted for child molestation and retained an attorney to represent him. A week before the trial, George decided that he wanted to represent himself, fired his attorney, and made his desires known to the trial judge. The trial judge should:a. permit George to represent himself if he is mentally competent and made the

decision after being advised of his Sixth Amendment rights and warned of the dangers of proceeding without counsel

b. advise George that the only right the Sixth Amendment grants him is the right to counsel; he has no right to represent himself

c. allow George to start the trial, but replace him with appointed counsel if he demonstrates that he is not capable of effectively representing himself

d. allow George to make opening and closing arguments, but appoint an attorney to conduct the rest of the trial

4. Which of the following events is not one of the events that signal the initiation of a criminal prosecution?a. issuance of an arrest warrant by a magistrateb. return of an indictment by a grand juryc. filing of information by the prosecutor

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d. an arraignment during which the defendant is read the charges and asked to enter a plea

5. To be considered a critical stage in which the accused has a Sixth Amendment right to counsel, the proceedings must:a. involve a courtroom confrontation between the government and the accusedb. occur before the trial c. be one for which the right to counsel was recognized at common lawd. none of the above

6. Which of the following is not considered a “critical stage” during which the defendant has a Sixth Amendment right to counsel?a. a bail hearingb. a photographic identificationc. a post-indictment lineupd. a preliminary hearing

7. Pretrial identification testimony may be challenged as violating the:a. Fourth Amendmentb. Sixth Amendment right to counselc. Due Process clause of the Fourth Amendmentd. all of the above

8. Which of the following correctly describes Sixth Amendment protection during photographic identification proceedings?a. The Sixth Amendment does not apply to photographic identification.b. The Sixth Amendment applies to photographic identification proceedings

conducted after initiation of prosecution.c. The Sixth Amendment requires police to avoid saying or doing anything that

might influence the witness’ decision whom to pick.d. The Sixth Amendment is violated if the identification is made from a mug shot

that derived from an illegal arrest.

9. Lineups are:a. the most suggestive of the three witness identification proceduresb. used to narrow the focus of an investigation in cases where the witness and the

police are uncertain of the offender’s identity c. not permitted after the accused has been indictedd. none of the above

10. Use of a showup identification is appropriate when:a. the suspected is apprehended near the scene of the crime shortly after its

commission and police have a strong need for a quick confirmation that they have apprehended the right person

b. police do not have a recent photographc. police are unable to find enough volunteers who bear a close resemblance to

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suspect to assemble a lineupd. all of the above

11. The due process clause requires exclusion of testimony that an eyewitness identified the accused if the identification:a. occurred after an illegal arrestb. resulted from unnecessarily suggestive procedures that created a substantial risk

of a mistaken identificationc. is made without counsel or a valid waiverd. all of the above


12. The Sixth Amendment guarantees indigent criminal defendants the right to be represented by appointed counsel in any situation in which persons who are not indigent have the right to representation by retained counsel. a. Trueb. False

13. A witness who makes a pretrial identification that is inadmissible on Sixth Amendment grounds will not be permitted to make an identification in the courtroom during the trial unless the judge determines that the witness has an independent basis that derived from recollection of the perpetrator acquired at the time of the crimea. Trueb. False

14. The Sixth Amendment right to appointed counsel extends to the appeals process and habeas corpus hearings. a. True b. False

15. Sixth Amendment protection attaches only after criminal prosecution has been initiated. a. Trueb. False

16. Non-suspects selected for use in lineups should resemble the person the witness described as the perpetrator, not the person the police suspect.a. Trueb. False

ANSWERS:

1. c 10. a2. c 11. b3. a 12. a4. a 13. a

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5. d 14. a6. b 15. a 7. d 16. a8. a9. d

Case Studies


Chapter 9Trial and Punishment

Objectives

This chapter examines the constitutional safeguards that are in effect during the trial and punishment phases of a criminal case. These safeguards include:

1. Protection against double jeopardy.

2. The right to a speedy trial.

3. The right to a public trial.

4. The right to confront adverse witnesses.

5. The right to a fair trial before an impartial tribunal.

6. The right to trial by jury.

7. The government’s constitutional duty to disclose favorable evidence to the defense.

8. Protection against cruel and unusual punishment.

Student Review Questions

1. Most rights discussed in this chapter derive from the Fifth, Sixth, and Eighth Amendments. Read all three Amendments very carefully and make a list of the rights that derive from each of them. Which one provides protection against double jeopardy? (Appendix)

2. What three conditions must exist for a defendant to have double jeopardy protection against a second prosecution? (§9.3)

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3. When does jeopardy attach in a jury trial? In a bench trial? (§9.3)

4. There are the three situations where a defendant may be retried for the same offense, even though an earlier prosecution progressed beyond the jeopardy attachment point. Identify them. (§9.3)

5. Where the judge aborts the prior trial for reasons of “manifest necessity” is one of the situations where retrial is permitted. What is the most common application of this exception? What are some other examples where this exception applies. (§9.3)

6. The double jeopardy clause prohibits multiple punishments for the same offense, but is not offended if the second penalty is civil. How do courts decide whether a penalty is criminal or civil? (§9.4)

7. Are the following penalties civil or criminal? Explain why.

a. Laws authorizing the government to seize money or property gained from or used in connection with criminal activity.

b. Megan’s laws requiring convicted sexual offenders to register with local law enforcement authorities upon taking up residence in the county.

c. Sexual predator laws requiring the involuntary civil commitment of habitual sexual offenders after completion of their prison sentence. (§9.4)

8. Which amendment guarantees the right to a speedy trial? (§9.6)

9. What policies does the right to a speedy trial promote? (§9.6)

10. At what point in the criminal process does the right to a speedy trial attach? (§9.6)

11. What legal protection, if at all, do defendants have against long delays in arresting or charging them? (§9.6)

12. What factors do courts consider in determining whether the right to a speedy trial has been denied? (§9.6)

13. Which amendment guarantees the right to a public trial? (§9.7)

14. Why are public trials considered important? (§9.7)

15. Does the guarantee of a public trial apply to pretrial proceedings? Grand jury proceedings? (§9.7)

16. What findings must a judge make to exclude media representatives and the public from the courtroom without violating the defendant’s to a public trial? (§9.7)

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17. Define grand jury, petit jury, and voir dire. (§9.7; Glossary)

18. Which amendment guarantees the accused the right to confront adverse witnesses? (§9.8)

19. Why is this right important? (§9.8)

20. When, if ever, may a defendant be denied the right to face his accuser in open court? (§9.8)

21. What four qualities must the decision maker possess in order to be considered impartial? (§9.9)

22. What standard is used to determine whether jurors who have been exposed to prejudicial media coverage can render an impartial verdict? (§9.10)

23. What factors do courts consider in applying this standard? (§9.10)

24. What precautions have trial judges traditionally taken to counteract the effects of prejudicial media coverage? (§9.10)

25. Define sequester. (§9.10; Glossary)

26. Which of the following actions may a criminal trial judge take to protect an accused’s right to a fair trial? (§9.10)

a. order media representatives to withhold publication of information they have already gathered.

b. bar media representatives from attending criminal trials.

c. bar media representatives and members of the public from attending pretrial suppression hearings.

d. order attorneys, witnesses, and law enforcement officers to abstain from making extrajudicial comments about specific aspects of the case.

27. The ABA Standards on Fair Trial and Free Press establish guidelines on the pretrial release of information concerning pending criminal cases. What subjects are generally appropriate matters for public comment? What subjects are not? (§9.10; Part II)

28. Which constitutional amendment guarantees the right to trial by jury? (§9.11)

29. There are five criminal proceedings, or portions thereof, in which the defendant does not have the right to trial by jury. What are they? (§9.11)

30. The common law petit jury consisted of a panel of 12 individuals whose verdict had to be

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unanimous. Does the Sixth Amendment permit the federal government to use smaller petit juries? To eliminate the requirement that the verdict be unanimous? Does the Sixth Amendment allow state governments to use smaller petit juries? How small? To eliminate the requirement that verdicts be unanimous? (§9.11)

31. Which constitutional amendment is the source of the prosecutor’s Brady duty to disclose evidence to the defense? (§9.12)

32. State the Brady test for when is the prosecution required to disclose evidence to the defense? (§9.12)

33. For what information besides the information in its own files is the prosecution responsible for disclosing? (§9.12)

34. There are three broad categories of evidence that are considered “favorable” for Brady purposes. What are they? Provide examples for each category. (§9.12)

35. What must the defense establish to hold police accountable for destroying or failing to preserve evidence? (§9.12; Arizona v. Youngblood (Part II))

36. Which amendment prohibits cruel and unusual punishments? (§9.13)

37. What three kinds of punishments, commonplace in modern society, are considered neither cruel nor unusual? (§9.13)

38. For what crimes is the death penalty regarded as an unconstitutionally cruel punishment? (§9.14)

39. What case marked the beginning of the Supreme Court’s capital punishment sentencing reforms? What did this case hold? (§9.14)

40. The Eighth Amendment has been interpreted to require death penalty sentencing procedures to incorporate certain safeguards. What safeguards are necessary? (§9.14)

41. For what crimes may the death penalty be made mandatory? (§9.14)

42. What three classes of offenders are not death-penalty eligible? (§9.14)

43. The Eighth Amendment prohibition on cruel and unusual punishment imposes two categories of duties on prison officials. What are they? (§9.15)

44. What must a prison inmate establish in order to assert a claim against a prison guard for use of excessive force? (§9.16)

45. What must a prison inmate establish in order to assert a claim against prison officials for failing to provide for his or her medical needs? (§9.16)

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Multiple-Choice Questions ((The student multiple-choice questions test the same information that will be covered on the real exam, though questions will not be same. Consequently, it will benefit you to figure out why your answers do not match the answer key for answers that do not.)

1. Jeopardy attaches in a jury trial when: a. as soon as a jury has been empanelled and sworn in b. after criminal prosecution has been initiated c. when the defense rests d. when the jury reaches a verdict

2. Double jeopardy does not apply if the following takes place: a. a mistrial is declared at the request of the defenseb. the defendant’s conviction is overturned on appeal c. the first trial ends in a hung jury d. all of the above

3. Laws like those requiring sex offenders to register with local police are constitutional under the Eighth Amendment because: a. the Eighth Amendment distinguishes between criminal and civil punishments b. double jeopardy has not attached c. of “manifest necessity” d. both a & c

4. The right to a speedy trial is protected under: a. due process b. the Sixth Amendment c. the Eighth Amendment d. the Fifth Amendment

5. Voir dire refers to: a. examination of potential jurors b. cruel and unusual punishment c. grand jury proceedings d. double jeopardy

6. Courts consider the following factors when deciding whether prejudicial news coverage compromised the impartiality of the jury, except for: a. extent of the publicity b. the defendant’s inability to make bailc. proximity of time to trial d. the nature of the publicity

7. The prosecutor’s duty to disclose exculpatory information to the defense was established in:

a. Baldwin v. New York

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b. Barker v. Wingo c. Brady v. Maryland d. United States v. Marion

8. The following crimes are eligible for the death penalty: a. third conviction for a violent felony b. rape of a young childc. murder d. all of the above

9. One or more of these must be present to impose the death penalty: a. mitigating factors b. aggravating factors c. prior convictions for violent crimesd. all of the above

10. The following Supreme Court case highlights the unfairness in application of the death penalty: a. McClesky v. Kemp b. Arizona v. Youngblood c. California v. Trombetta d. United States v. Perez

11. Protection against double jeopardy is provided in the: a. Fourth Amendment. b. Fifth Amendment. c. Sixth Amendment. d. Eighth Amendment.

12. In order to have double jeopardy protection against a second prosecution: a. the first trial must end in acquittalb. both prosecutions must involve a felonyc. both prosecutions must be brought under the same section of the penal coded. both prosecutions must be brought by the same sovereign entity for the same offense

13. The accused is placed in jeopardy (i.e., jeopardy attaches) when: a. he or she is indictedb. he or she is arraigned and enters a plea to the indictmentc. the jury is sworn or, in cases tried without a jury, when the judge begins hearing testimonyd. the jury returns a verdict

14. The Sixth Amendment guarantees the right to:a. cross-examine prosecution witnessesb. a jury trial c. a speedy triald. all of the above

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15. The “same element” test is used to determine when:a. prosecutions brought under different portions of the penal code represent the same

offenseb. multiple punishments violate double jeopardyc. the federal government can prosecute a defendant who has previously been tried in a state

courtd. all of the above


16. Trial by a jury of one’s peers was a unique invention of the U.S. justice system. a. True b. False

17. The right to a public trial does not apply to grand jury proceedings. a. True b. False

18. For most crimes, criminal charges must be made within a fixed number of years. a. True b. False

19. The right to a jury trial does not apply to juvenile court proceedings. a. True b. False

20. For jury trials brought both in federal and state courts, the number of jurors must be 12. a. True b. False

ANSWERS:

1. a 11. b2. d 12. d3. a 13. c4. b 14. d5. a 15. a6. b 16. b7. c 17. a8. c 18. a9. b 19. a10. a 20. b

Case Studies

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Chapter 10Constitutional and Civil Rights in the Government Workplace

Objectives

Many students who read this book will someday be police officers. This chapter examines the constitutional rights of officers in personnel disputes, federal protection against employment discrimination, and civil liability for violating the constitutional rights of others. The student should emerge from this chapter with a clear understanding of:

1. First Amendment protection for on and off-duty speech;

2. Fourth Amendment protection against workplace searches for evidence of work-related misconduct;

3. Fifth Amendment protection against compulsory self-incrimination during police internal investigations;

4. Fourteenth Amendment procedural rights in police disciplinary actions;

5. Fourteenth Amendment protection against department regulations that arbitrarily infringe on a police officer’s personal liberty; and

6. Title VII protection against employment discrimination based on race, creed, color, religion, gender, and nation origin.

7. Equal protection requirements for affirmative action.

8. Civil liability under 42 U.S.C. § 1983 for violating the constitutional rights of others.

Student Review Questions (Answers are provided at the end for questions that have asterisks beside them)

1. The observation has been made that police officers have less constitutional protection in the workplace than the criminals they investigate? Is this observation correct? If so, why? (§10.1)

*2. Officer Dobosz was the first officer to arrive on the scene after a deadly shooting involving a teenager who had been shot in the back of the head by Officer Fitzgerald. He had to leave almost immediately after his arrival. When he returned, he noticed a knife near the dead boy’s body that had not there when he left. Someone had planted the weapon there after the

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shooting so that Officer Fitzgerald could claim the shooting was justified in self-defense justification. Dobosz was deeply troubled by the incident, but keep the incident to himself for about a year. He contacted the FBI after learning that they were investigated the shooting. Officer Fitzgerald was placed on trial by the federal government. Dobosz testified at the trial that he believed that the killing of the youth was unnecessary and that the knife discovered near his body had been planted there. Officer Fitzgerald was acquitted. Officer Dobosz was terminated shortly thereafter. He sued, claiming a violation of his First Amendment rights.

a. Describe the three-step process the court will use to determine whether Officer Dobosz’s First Amendment rights were violated by the action taken against him in response to his testimony against a fellow officer.

b. How should the first inquiry be resolved?

c. How should the second inquiry be resolved?

d. What is the third inquiry? What kind of workplace disruption is the testimony of one police officer against a fellow officer during a criminal trial likely to cause? Should that court find the department’s interest in avoiding these disruptions outweighed Officer Dobosz’s First Amendment interest in testifying? (§10.2)

3. When, if ever, may a public employee’s party affiliation be taken into consideration in hiring, transfer, promotion, or dismissal decisions? (§10.2)

4. Describe the approach courts use to decide whether a workplace search violated a police officer’s Fourth Amendment rights? What factors do courts consider in deciding whether an officer has a reasonable expectation of privacy in her work space/equipment? (§10.3)

*5. The Whosville Police Department maintains lockers for the use of its employees. Department regulations provide that: “Officers shall: (1) keep their lockers clean and orderly, (2) not store articles of evidence, confiscated materials, contraband, intoxicants or food in their lockers at any time, and (3) provide their commanding officer with a duplicate key. The regulations further provide that “Commanding Officers shall periodically inspect all lockers assigned to personnel under their command.” At 8:00 A.M. on January 13, 1998, Captain McDougall discovered illegal drugs on top of a heating duct in the police locker room. When he made a similar discovery two hours later, Captain McDougall notified Internal Affairs and directed his subordinates to open and search all 350 lockers in the police locker room. Drugs were found in Officer Johnson’s locker and he was dismissed. Does Officer Johnson have a claim against the Department for violating his Fourth Amendment rights? (§10.3)

*6. What justification does the police department need to perform a workplace search when the officer has a reasonable expectation of privacy in the location searched? (§10.3; Gwynn v. City of Philadelphia (Part II))

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7. Under what circumstances may a police officer be compelled to undergo work-related drug testing? (§10.3)

*8. Officer Johnson was ordered to appear before the Whosville Police Department internal affairs unit, investigating an allegation that he had taken a bribe. When he appears, he is ordered to cooperate and informed that if he fails to cooperate, he will be fired.

a. Suppose Officer Johnson refuses to give a statement and is fired. Has the Whosville Police Department violated Officer Johnson's Fifth Amendment privilege against self-incrimination?

b. Suppose Officer Johnson, fearful of losing his job, admits to taking bribe. May his admission be used as evidence against him in a subsequent criminal proceeding? (§10.4)

9. What must a police officer establish in order to successfully challenge a police department regulation as a violation of substantive due process? (§10.5)

10. How successful have police officers been in challenging police department regulations affecting: (§10.5)

a. Grooming, personal appearance, and obesity?

b. Minimum height and weight requirements?

c. Citizenship requirements?

d. Residency requirements?

e. Bans on smoking?

f. Off-duty sexual behavior?

11. The Fourteenth Amendment due process clause entitles police officers facing adverse employment action to a hearing in certain instances. (§10.6)

a. When is a police officer entitled to a hearing to contest whether grounds existed for his or her dismissal?

b. What procedural safeguards must be provided at the hearing? c. What is a “name-clearing” hearing?

d. When is a police officer entitled to a name-clearing hearing?

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12. Title VII prohibits police departments from refusing to hire, discharging, or otherwise discriminating against people on any one of five different grounds. What are the five grounds? (§10.7)

13. Identify and describe the three kinds of discrimination claims that can be brought under Title VII? Which kind of discrimination did the white firefighters in Ricci v. DeStefano allege? (§10.7; Ricci v. DeStefano (Part II))

14. What must a claimant prove in order to establish quid pro quo sexual harassment? Hostile workplace sexual harassment? (§10.7)

15. When is a police department liable for a supervisor’s sexual harassment of a subordinate? A co-worker? (§10.7)

16. What are affirmative action programs? (§10.8)

*17.Officer Johnson, a white male officer, had the highest score on the sergeant’s promotional exam. The Whosville Police Department, nevertheless, passed over him and appointed Officer Ricardo, a Hispanic officer, who scored five points lower, based to the Department’s affirmative action plan. Officer Johnson sued the Department, claiming he was denied equal protection of the laws. What two inquiries will the court make to decide whether the preferential treatment given to Officer Ricardo violated Officer Johnson’s right to equal protection? (§10.8)

18. What two things must a plaintiff prove to make a recovery against a police officer under §1983? (§10.9)

*19.Officer Green is violence-prone. Last week alone, he shot two people with his service revolver. Indicate whether he was acting “under color of state law” so as to be amendable to suit under §1983 during the shooting incidents. (§10.9)

a. Officer Green, who had been dispatched to the scene of a burglary, shot the burglar in the back of the head as he attempted to flee.

b. Officer Green shot his wife with his service revolver during a domestic dispute. He was still on duty and in uniform and had stopped home to pick up his lunch.

20. When can a municipality be sued under §1983 for the unconstitutional acts of a rank-and-file police officer? (§10.9)

21. When is the defense of qualified immunity available in a §1983 action? (§10.9)

22. What test do courts use to determine whether a constitutional right has been established with sufficient clarity that an officer can be held liable for violating it? What degree of case law specificity is generally necessary to satisfy this test? (§10.9)

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ANSWERS:

2. To be protected, the officer’s speech must be (1) made as citizen, not employee, (2) relate to a matter of public concern, and (3) the officer’s interest in bringing this matter into the open must outweigh the police department's interest in avoiding disruptions in the workplace. Officer Dobosz should prevail on all three inquiries. (1) Contacting an outside agency (the F.B.I.) about a fellow’s officer’s criminal misconduct, and testifying against a fellow officer in a criminal trial, both fall outside a police officer’s official duties. When a public employee goes outside of established institutional channels to express his concern, the employee’s speech is generally treated as speech of a citizen. (2) Misconduct, corruption, and wrongdoing in the police department are inherently matters of public concern. (3) Officer Dobosz’s testimony is likely to cause morale problems and tarnish the police department’s public image. However, the public's interest in learning about serious misconduct within the police department outweighs the department's interest in avoiding the inevitable disruptions that result from such disclosures.

5. Officer Johnson’s Fourth Amendment rights were not violated by the search of his locker because he lacked a reasonable expectation of privacy. Notification that his commanding officer had a duplicate key and could to inspect his locker without notice at any time demolished any expectation of privacy.

6. The answer depends on whether the search is investigatory. No justification is required to perform a noninvestigatory search, such as to repair a computer or to look for a report or file. Reasonable suspicion is required when the purpose of the search is to uncover evidence of work-related misconduct.

8. (a) A police officer’s Fifth Amendment rights are not violated if he fired for refusing to disclose his criminal activity in a police disciplinary proceeding. The Fifth Amendment is not concerned with compulsion to make a self-incriminating statement. It is concerned with the courtroom use of compelled statements in the criminal prosecution of the maker; it is not violated if the compelled statement is never used. The WPD, as Officer Johnson’s employer, had a right to demand that he account for his official behavior and to fire him if he refused.

(b) Officer Johnson’s admission of criminal wrongdoer cannot be used against him in a criminal prosecution because it was obtained from him on threat of job termination and, thus, was compelled.

17. If the police department (1) had a compelling need to remedy a workforce imbalances caused by its own prior discriminatory employment practices or to increase diversity in order to operate more efficiently, and (2) the promotion was made under a systematic plan that was narrowly tailored to minimize the disadvantages to Caucasians and males, Officer Johnson cannot complain that Officer Ricardo received preferential treatment. Officer Johnson will have a reverse discrimination claim under the equal protection clause if either requirement for affirmative action is lacking.

19. The first shooting was under color of law, but the second on was not.

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1. Under Garcetti v. Ceballos, a police officer has no First Amendment protection for speech that:a. occurs on the jobb. relates to the officer’s employmentc. is part of his or her official dutiesd. is expressed outside the chain of command

2. To be speaking as a citizen, for First Amendment purposes, a police officer’s speech must: a. be unrelated to the police departmentb. occur outside the workplacec. occur while off-dutyd. none of the above

3. After a series of drug thefts from the evidence room of the Whosville Police Department (WPD), Police Chief Sullivan devised a plan to catch the thief. He left several baggies with tea leaves that looked like marijuana in the evidence room. After the baggies disappeared, Police Chief Sullivan conducted a locker search pursuant to a departmental regulation that allowed lockers to be inspected without notice. The baggies were discovered in Officer Brown’s locker. After his dismissal, Officer Brown sued Police Chief Sullivan for violating his Fourth Amendment rights. The Court should find for:a. the WPD because Brown lacked a reasonable expectation of privacy in his lockerb. the WPD because the Fourth Amendment does not apply to searches conducted to

discover evidence for a use in a disciplinary proceedingsc. Officer Brown because the WPD lacked probable cause to believe that the stolen drugs

would be found in his lockerd. Officer Brown because he was entrapped

4. The Fifth Amendment privilege against self-incrimination protects a police officer undergoing an internal affairs investigation from:a. being compelled to take a lie detector testb. being fired for refusing to answer questions that call for an incriminating responsec. having statements obtained under threat of removal from office used against him in a

criminal prosecutiond. all of the above

5. Which of the following police department regulations can be successfully challenged?a. a ban on beards and goateesb. a ban on smoking on or off-dutyc. a ban on outside employment

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d. a 5′ 3″ minimum height and 130-pound minimum weight requirement

6. Jones, a probationary officer with the Whosville police department, was fired for recurrent tardiness. Which of the following best describes his right to a hearing under the Fourth Amendment?a. He has no right to a hearing. b. He is entitled to a hearing to clear his name, but not to get his job back.c. He is entitled to a hearing to contest the charges and get his job back if he wins.d. He does not need a hearing because tardiness is not serious enough to warrant dismissal.

7. The Fourteenth Amendment entitles officers facing dismissal who have a property right in their job to all but which of the following procedural rights?a. the right to a hearing before an impartial decision makerb. the right to testify and put on witnessesc. the right to be represented by counsel and to have counsel appointed if the officer cannot

afford an attorneyd. the right to cross-examine the department’s witnesses

8. Title VII does NOT prohibit employment discrimination based on:a. raceb. religionc. national origind. age

9. Disparate treatment discrimination occurs when:a. a superior threatens to take negative action or to withhold positive action unless the

subordinate acquiesces to sexual demandsb. an employer uses criteria that disproportionately eliminate women or minority

candidates without being valid predictors of the knowledge, skills, or traits required for successful job performance

c. an employer deliberately treats one person less favorably than others who are similarly situated because of race, color, religion, gender, or national origin

d. an employer fails to provide adequate grievance procedures for employees who have been treated unfairly

10. Quid pro quo sexual harassment occurs when:a. a superior threatens to take negative action or to withhold positive action unless the

subordinate acquiesces to sexual demandsb. an employer uses criteria that disproportionately eliminate female applicants from

employment without being valid predictors of the knowledge, skills, or traits required for performance of the job in question

c. a female worker receives lower pay than males occupying the same rank and graded. sexual advances are so flagrant as to alter the conditions of the victim’s employment

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11. Giving preferential treatment to female and minority candidates in police department promotional decisions denies white male candidates equal protection of the law unless:a. the police department has a compelling need to remedy past discrimination or increase

diversity in the higher ranksb. women and minorities hold less than 30% of the leadership positions in the departmentc. white male officers who would otherwise have received the promotion are compensated

for their disappointmentd. all of the above.

12. The §1983 requirement that a police officer’s conduct be committed under “under color of state law” requires proof that:a. the officer’s conduct was authorized by state lawb. the conduct occurred while the officer was on duty and in uniformc. the officer’s misuse of power was made possible because of the authority vested in him

by state lawd. none of the above

13. Qualified immunity protects a police officer from liability under §1983 when:a. this is the first claim made against the officerb. the officer’s conduct did not violate a clearly established constitutional rightc. the violation was accidentald. all of the above


14. First Amendment protection means protection against adverse employment action for speech that annoys superiors.a. True b. False

15. According to the text, context is the most important consideration in applying the public concern test.a. True b. False

ANSWERS:

1. c 9. c2. d 10. a3. a 11. a4. c 12. c5. d 13. b6. a 14. a 7. c 15. b8. d

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Case Studies


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Download Study Guides3-euw1-ap-pe-ws4-cws-documents.ri-prod.s3.amazonaws.com/... · Web viewThis chapter completes the analysis of the Fourth Amendment begun in Chapter 3, which explored

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