Crash Course 3: 2nd and 4th Amendments

This post submitted by an IBRL:SD member.

Last Wednesday we heard from Josh Steward about the Supreme Court’s recent interpretation of the Second Amendment and where gun rights stand today. Josh first explained the text of the Second Amendment:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Then Josh explained that in Heller the majority essentially severed the prefatory phrase regarding the militia, leaving question about what it meant to keep arms, bear arms, and the degree of infringement. Instead of situating the limit on the kinds of weapons people may keep and bear (and presumably shoot) in the text, or in the history of the Amendment, the Court said that firearms in common lawful use were protected.

We then discussed the Fourth Amendment’s protection against unreasonable searches and seizures:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The result, if these rules are violated, is that the evidence obtained is not available in court. First, however, some definitions. A “search” is the invasion of a subjective expectation of privacy that society is willing to recognize as reasonable. For instance, you have a reasonable expectation of privacy in your house, but an unreasonable (if genuine) expectation of privacy in the smell of drugs emanating from the trunk of your car. A seizure, with regard to a person (which is usually the most important) is the creation of the reasonable belief in an average person that they are not free to leave. For example, tackling a suspect, and turning on the police siren-lights are both seizures of the suspect. Finally, an “unreasonable search[ or] seizure[]” is a search without a warrant. The case I meant to read from to support this proposition is Katz:

Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," (Agnello v. United States) for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . ." (Wong Sun v. United States). "Over and again this Court has emphasized that HN9the mandate of the [Fourth] Amendment requires adherence to judicial processes," (United States v. Jeffers) and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions. - Katz v. United States, 389 U.S. 347, 357 (U.S. 1967)

Naturally, we next discussed the “specifically established and well-delineated exceptions” to the warrant requirement. Before talking about the seven exceptions under discussion we talked about how Terry v. Ohio permitted certain citizen-police interaction based on reasonable, objectively articulable, suspicion, and how that case demonstrated the Court’s real concern for limiting the absolute discretion of the police to pursue wild hunches or target people for investigation without justification. There is very little to say about the difference between unreasonable suspicion, reasonable suspicion, and probable cause, except that the facts of cases are frequently very similar to others so rules can be applied, but we talked about two examples very close to the line.

Neither mere flight from the police (without more) nor apparently lawful conduct in a high crime area, at night, justify a stop by the police. But all three combined, do. That is one example of the line between a mere hunch, and reasonable suspicion. As for probable cause, the question is always whether the information the officer has would arguably be enough to justify skipping straight to the part where the suspect is put in handcuffs. For example -- would a spark plug feel enough like a crack pipe through the cloth of a pocket to justify an arrest?
The seven exceptions to the warrant requirement that we talked about were:
Search Incident to Lawful Arrest: Police may arrest a suspect on probable cause, and before putting the suspect in the back of their cruiser, may search them both to disarm and to find evidence. The way I have always understood this is that once a person has been arrested, the government has put its cards on the table and there is no problem of intangible escalalation of the imposition on the liberty of the arrestee. If the arrest was unlawful, the search will be too, so let him challenge the arrest.

The Automobile Exception: Unlike your house, you drive your car through public places, and (most) don’t have blinds on the windows (incidentally, there are laws against that sort of thing). Also, the drivers side window is the place of the most frequent interaction with the police. For these reasons, under federal law, the police can search a car once there is probable cause. Notice – there is no such exception for the person.

Inventory Searches: When cars are impounded they may be searched without a warrant so long as there are guidelines limiting the discretion of the police, and the search is conducted in a manner that indicates it was part of normal procedure. Again, it’s a matter of limiting police discretion, and state law has a lot to say about this.

Plain View: Not really an exception, but so long as the police were lawfully allowed to be in the vantage point that they were, we can’t expect them to turn a blind eye to obvious evidence of wrongdoing. Maybe it’s a carry-over from the abandoned trespass concept of a search (Olmstead), but that’s where it stands, and the rule is not going anywhere.

Consent: If you consent to a search, you waive your rights. The only remarkable thing about this exception is the frequency with which _very_ guilty people consent. Crime School 101: If you have drugs, and you tell the officer he can search, he IS going to search AND he is going to find them (they kind of know what they are doing).

(K-12) School: We expect certain things from our teachers, and holding them to the same standards as the police would (a) make their jobs impossible, and (b) sorely mistake what their job is.

Exigent Circumstances: In the ticking time bomb scenario we allow the police to act like normal human beings, and worry about the justifications later. Police don’t have to abandon a hot pursuit when the suspect enters private property and go get a warrant. Recently, this has become a hot topic in investigation of methamphetamine labs, which police and many courts have deemed equally dangerous as the ticking time bomb – they do in fact explode without warning and with some frequency.

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