Constitutional Law

1
Constitutional Law

• Midterm Review

2
Remember these things

• After a proposed Constitution was written, it was
  submitted to the states for ratification. This
  ratification was opposed by some states because
  the Constitution contained no bill of rights.
• Under the terms of the proposed Constitution, the
  new government was to become operative if 9
  states was ratified.
• The United States Constitution, as originally
  adopted was divided into seven major portions or
  articles.
• Article I of the United States Constitution
  grants Congress the power to regulate interstate
  and foreign commerce.
• Article II of the United States Constitution
  establishes the powers of the President

3

• The first three articles of the Constitution are
  commonly referred to as the separation of powers
  articles.
• Suppose the Supreme Court recently handed down a
  decision declaring that the death penalty
  violates the Eighth Amendment, which prohibits
  cruel and unusual punishment and, therefore, may
  no longer be imposed. The members of Congress are
  outraged by this decision and want to change it.
  Under our Constitution, a Supreme Court decision
  interpreting the Constitution can be nullified by
  a constitutional amendment proposed by a
  two-thirds vote in both houses of Congress and
  ratified by three-fourths of the state
  legislatures.
• 8. The Constitution directly established the
  Supreme Court and granted Congress the power to
  establish judicial tribunals inferior to the
  Supreme Court. Under the federal judiciary system
  established by Congress federal criminal trials
  are held in federal district courts.

4

• 9. The commerce clause, as interpreted by
  the Supreme Court allows Congress to regulate any
  activity that has a substantial effect on
  interstate commerce, even though the activity
  takes place entirely within the confines of a
  single state.
• 10. Congress has enacted crime legislation
  such as the Motor Vehicle Theft Act under one of
  the powers delegated under Article I, 8. That
  provision is the power to regulate interstate and
  foreign commerce.
• In 1994, Jones committed an armed robbery, In
  1996,. the Kentucky legislature enacted a law
  increasing the punishment for armed robbery from
  15 to 20 years in prison. Six months later, Jones
  was captured, tried, convicted, and sentenced to
  20 years in prison. Sentencing Jones to 20 years
  violates the Article I, 10 ex post facto
  clause.
• Article I, 10 prohibition against bills of
  attainder prevents state legislatures from
  enacting laws that declare individual citizens
  guilty of crimes and confiscating their property.
• Possessing a firearm in a school zone exceeds the
  powers of Congress under the commerce clause.
• In a recent decision, the Supreme Court found the
  Virginia Military Institute's (VMI) all-male
  admissions policy unconstitutional as a violation
  of equal protection of the laws.
• 15. Under our federal system of government,
  states have primary authority to
• provide for education of children.
• The right to trial by jury in criminal cases
  is/has been made binding on the states through
  incorporation into the Fourteenth Amendment.

5

• 17. The due process clause, which limits the
  actions of state governments and state part of
  the Fourteenth Amendment.
• 18. The Bill of Rights was proposed by the
  First Congress to fulfill pledges made to the
  states to secure ratification of the
  Constitution.
• 19. Article I, Section 10 of the Constitution
  prohibits the states from exercising certain
  powers. Under this section, states are prohibited
  from entering into treaties, alliances, or
  confederations.
• 20. The constitutional division of power
  between the federal government and the states is
  accomplished through the combined effects of
  Article I 8 Article I, 10 and the Tenth
  Amendment.
• The first Congress assembled under the new
  Constitution did so in the year 1789.
• Chapter Two
• 22. The First Amendment mentions several
  rights in addition to freedom of speech. Among
  the rights mentioned is the right to peaceably
  assemble.
• 23. The rights guaranteed by the First
  Amendment are binding on Federal, state, and
  local governments.
• 24. Organizing a parade, soliciting funds and
  refusing to pledge allegiance to the flag are
  activities regarded as speech for purposes of
  the First Amendment.
• 25. During the Persian Gulf War, six-
  anti-war demonstrators climbed up the fire escape
  and onto the roof of Armed Services Recruiting
  Station building where they lowered the flag
  flying over the building and burned it. Their
  reason for doing this was to protest the
  governments involvement in the Persian Gulf War.
  They were indicted and convicted for criminal
  trespass and malicious destruction of government
  property. On appeal, they contended that their
  conviction violated their rights under the First
  Amendment. The appeals court should affirm the
  conviction under the OBrien test because the
  government has a substantial non-speech interest
  in regulating trespassing on the roof of
  government buildings and destroying government
  property.

6

• Laws outlawing speech based on the message are
  constitutional if the speech falls within one of
  the unprotected categories.
• Profanity continues to enjoy some degree of
  First Amendment protection.
• The test currently used to determine whether
  literary works are obscene was established by the
  Supreme Court in Miller v. California.
• A literary work can be banned as obscene only if
  the work lacks serious literary, artistic,
  political, or scientific value.
• The following situation The defendant, seeing a
  black man holding hands with a white woman,
  stopped the man and said Nigger, if you dont
  take your hands off that lady, Ill break your
  neck. is most likely to be regarded as
  constitutionally unprotected fighting words.
• Cityville recently adopted an ordinance
  prohibiting citizens from appearing in a public
  place wearing a white robe with a hood or other
  clothing identifying the wearer as a Ku Klux Klan
  member. Ten citizens attending a Ku Klux Klan
  rally in a city park were arrested and convicted
  under this statute. They appealed their
  conviction, claiming that the statute is
  unconstitutional. The court should find the
  statute unconstitutional because Cityvilles only
  interest in regulating this conduct is its
  disapproval of the message this conduct
  communicates.

7

• In Brandenburg v. Ohio, the Supreme Court
  established the test that controls when speech
  can be punished as incitement to violence or
  other unlawful acts.
• The determination that a government-owned
  location constitutes a public forum means that
  the government must satisfy stringent criteria to
  justify restricting free speech activity at that
  location.
• A shopping center parking lot is a least likely
  place to be regarded as a public forum.
• Public streets, sidewalks, and parks are examples
  of traditional public forums.
• The determination that a government-owned
  location is a nonpublic forum means that
  restrictions on First Amendment uses must be
  viewpoint neutral and reasonable in light of the
  purposes the facility serves.
• An ordinance prohibiting the display of signs
  critical of an embassys government in front of a
  foreign embassy is most likely to be held
  unconstitutional.
• In order for an ordinance requiring a parade
  permit to be constitutional the ordinance may not
  impose an unreasonably long advance notice
  requirement.
• On April 3, bob, a candidate for district court
  judge, set up a table in the north wing of the
  Sharpesville Plaze to solicit campaign
  contributions and distribute literature.
  Sharpesville Plaza is a privately owned shopping
  center. Upon learning of Bobs presence, the
  manager told him that Sharpesville plaza did not
  permit solicitation on the premises and asked him
  to leave. On his refusal, the manager called the
  police. When officer Smith arrived, he observed
  that Bob was polite and mannerly and that he was
  not disturbing anyone. Officer Smith should
  arrest Bob for trespassing if he refuses to leave.

8

• 40. At noon on August 10, 1990, 50 members of
  the Revolutionary Communist Party assembled at
  the courthouse in downtown Cleveland to hold a
  public demonstration to protest President bushs
  decision to send troops to the Persian Gulf.
  They gathered near the main entrance to the
  building. Mary, the organizer, used a portable
  sound system to read a prepared statement in
  which she denounced United States foreign policy
  in the Middle East. The crowd rapidly swelled to
  more than 100 people, making is impossible to for
  members of the public to enter and leave the
  building. At the conclusion of her speech, Mary
  produced a United States flag and announced that
  she intended to burn it to symbolize Americas
  violence abroad. A spectator, offended by Marys
  proposed course of action, tried to grab the flag
  out of her hands. In the process, the flag was
  torn. At this point, two police officers arrived
  on the scene and observed the tug of war that was
  taking place. They told Mary that she and her
  group would have to leave. Mary refused.
  Cleveland has three relevant ordinances one
  making it an offense to destroy an American flag,
  a second making it an offense to refuse to obey a
  police officers lawful order to move on, and a
  third making it an offense to cause an
  obstruction to ingress to or egress from a public
  building. Under settled interpretation of the
  First Amendment Mary can be arrested for causing
  an obstruction of ingress and egress to a public
  building.

9

• 41. A group of anti-war protestors deliberately
  obstructed the entrance to an army induction
  center to prevent inductees from entering. When
  an officer attempted to remove the protestors,
  Joe, who was the leader of the group the
  entrance to an army induction center to prevent
  inductees from entering. When an officer
  attempted to remove the protestors, Joe, who was
  the leader of the group You white son of a
  bitch, if you come one inch closer, Ill choke
  you to death and cut you up into pieces. The
  officer arrested him under a statute which
  prohibited use opprobrious words or abusive
  language. Joe was convicted and appealed,
  claiming that his conviction violated the First
  Amendment. The court should reverse Joes
  conviction because the statute under which he was
  convicted is unconstitutionally vague and
  imprecise.
• 42. Know that an ordinance making it a crime to
  place graffiti on public buildings is
  constitutional.
• Chapter 3
• The language of the Fourth Amendment does not
  mention the term arrest.
• Reasonable suspicion is necessary to frisk a
  person for a weapon.
• No level of suspicion is required to approach a
  person on a public street and ask for
  identification.
• The test for whether a police officer has made a
  show of legal authority is whether a reasonable
  person in the suspects position would feel free
  to disregard the officers request and leave.
• The situation of an officer yelling stop in the
  name of the law and firing a gunshot, but the
  suspect continuing to run constitutes a seizure.
• Reasonable suspicion cannot be based on
  information learned after a seizure occurs.
• During an investigative stop, police may not,
  under any circumstances search the detainee for
  anything other than weapons without the
  detainees consent.
• The plain feel doctrine is an exception to the
  rule that the only objects police may seize
  during investigative stops is a weapon.

10

• 51. After a lawful traffic stop, police may
  routinely order the driver and all passengers to
  exit the vehicle for the duration of the stop.
• 52. An arrest occurs as a matter of law whenever
  the police take a suspect to the police station
  without his or her consent.
• 53. Police must always execute seizing the
  suspect in order to effect an arrest.
• 54. The Fourth Amendment requires an arrest
  warrant before making a nonconsensual entry into
  a hotel room to arrest someone inside.
• 55. An arrest warrant will not protect an officer
  against liability for making an unconstitutional
  arrest if the officer deliberately or recklessly
  includes false information in his or her
  affidavit for a warrant.
• 56. In evaluating whether probably cause exists
  for the issuance of an arrest warrant, the judge
  will 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.
• 57. The Fourth Amendment expressively requires
  that arrest warrants contain a particularized
  description of the person to be arrested.
• 58. Assume that police have probable cause to
  arrest a man who is named Sticky-Fingered Sam,
  but whose real name is Sam M. Wanna. Police know
  that Sams nickname and that he lives in a
  five-unit apartment building on 112 North Street,
  but mistakenly believe that his real name is Sam
  Cook. The description Sticky-Fingered Sam who
  lives at 112 North St. is most likely to be
  regarded as adequate to satisfy the Fourth
  Amendment.

11

• 59. The Fourth Amendment imposes restrictions on
  the use of deadly force (i.e. force to cause
  death or serious bodily injury). Police may not
  use deadly force unless the suspect poses a
  threat to the officer or others, or is likely to
  be dangerous to the community if he or she
  escapes.
• Chapter 4
• 60. For incriminating evidence to be considered
  in open view the officer must be lawfully
  present at the location where the observation is
  made.
• 61. When the purpose for conducting a search is
  to obtain evidence of a crime, the Fourth
  Amendment always requires the officer to confine
  search activity to looking for the objects for
  which the officer has search authority.
• 62. Looking inside the glove compartment of an
  unattended vehicle or car parked on a public
  street constitutes a search within the meaning of
  the Fourth Amendment.
• 63. Sally York, who was a passenger on the same
  flight as Mary Wanna, accidentally picked up Mary
  Wannas suitcase, thinking it was her own. She
  opened it up when she got home, saw a firearm
  resting on top of bundles of 100 bills,
  immediately closed the suitcase, took it to
  police headquarters, and told Detective Jacobs
  what she had seen. The detective reopened the
  suitcase, took out and examined the firearm and
  the money, and then removed the lining, under
  which he found a bag containing 20 grams of
  cocaine. Mary has been prosecuted for
  possession of an unregistered firearm, possession
  of cocaine, and trafficking in drugs. She has
  moved to suppress the evidence, claiming that her
  Fourth Amendment rights were violated. Detective
  Jacobs removal of the suitcase lining
  constituted a search within the meaning of the
  Fourth Amendment.

12

• 64. Consent is a recognized exception to the
  warrant requirement.
• 65. Several the exceptions to the warrant
  requirement confer authority to open closed
  containers without a search warrant. For
  example, police have the authority to open and
  look inside a womans handbag whenever they make
  a lawful arrest.
• 66. An object must constitute the fruits,
  instrumentalities, or other evidence of crime or
  contraband for the Fourth Amendment to require
  the police to have authority to seize an object
  for use as evidence.
• 67. An officer must require probable cause to
  believe that the object is associated with a
  crime without exceeding the lawful boundaries of
  his or her search authority this is necessary to
  justify a plain view seizure.
• 68. While conducting a warrant less search of the
  trunk of a motor vehicle, Officer Johnson came
  across a briefcase, opened it, and discovered
  narcotics inside. The following situation would
  be justified under the plain view doctrine The
  motorist consented to allow Officer Johnson to
  search her trunk for narcotics, but said
  nothing about the briefcase.
• 69.The purpose of conducting a search following a
  custodial arrest is to protect the arresting
  officer from weapon assaults and prevent the
  arrestee from destroying evidence.
• 70. Police have the authority to conduct a Terry
  pat-down whenever they have a reasonable
  suspicion that a person lawfully detained may be
  armed.
• 71. To establish probable cause for the issuance
  of a search warrant, the officers affidavit must
  contain facts that establish probable cause to
  believe that a crime has been committed,
  specific items exist that are linked to that
  crime and these items are located on the premises
  to be searched.

13

• 72. When the police have reasonable suspicion,
  but not probable cause, to believe that a
  passenger who is about to board an airplane has
  drugs in his or her travel bag, they may detain
  the passengers travel bag and subject it to a
  canine examination.
• 73. The automobile exception to the search
  warrant requirement permits an officer who has
  probable cause to believe that a motor vehicle
  contains specific objects that furnish evidence
  of a crime to search any part of the vehicle,
  including locked and unlocked containers in it,
  that are large enough to house the object of the
  search.
• 74. The exigent circumstances exception to the
  warrant requirement permits the police to make a
  warrant less entry on private premises when they
  have probable cause to believe that specific
  objects constituting evidence of a crime will be
  found on the premises and have reason to believe
  that this evidence will be destroyed or removed
  unless they act immediately, police are in
  immediate, hot pursuit of a felon whom they have
  probable cause to arrest, and police have reason
  to believe that the safety of the public or of
  persons inside is in imminent danger.
• 75. A lawful custodial arrest made inside a
  private residence automatically carries the
  authority to engage in performing a cursory
  visual inspection of the spaces immediately
  adjacent to the place of arrest that are large
  enough to hide a person who might be waiting to
  launch an attack, with no additional grounds
  beyond grounds for the arrest.
• 76.The exclusionary rule does not bar
  introduction of evidence seized in violation of
  the Fourth Amendment when the evidence is offered
  for impeachment, in a parole hearing, or against
  a person whose Fourth Amendment rights were not
  violated.

14

• 77. The good faith exception to the exclusionary
  rule allows evidence seized in violation of the
  Fourth Amendment to be admitted whenever the
  court finds that the officer acted in good faith
  reliance on a search warrant that the officer
  reasonably believed was valid.
• 78. The inevitable discovery rule is an
  exception to the exclusionary rule that allows
  evidence seized in violation of the Fourth
  Amendment to be admitted when the government
  proves that the evidence would inevitably have
  been discovered by lawful means even if the
  Fourth Amendment violation had not occurred.
• 79. A protective sweep may be performed whenever
  the police make an arrest inside a dwelling.
• 80. When the police arrest a motorist for a minor
  traffic violation they are entitle to a bumber to
  bumber search of the vehicle
• 81.When the police execute a search warrant to
  search a residence, they are required to conduct
  the search within a reasonably short time after
  the warrant.
• 82.Police do not need a search warrant or
  probable cause to believe that a search will turn
  up evidence of a crime in order to search
  abandoned property, an open field, and an
  arrestees person after making a lawful arrest.
• 83.To established probable cause for the issuance
  of a search warrant, the affidavit must contain
  facts that establish probable cause to believe
  that a crime has been committed, specific items
  exist that are linked to that crime and these
  items are located on the premises to be searched.
• 84. A magistrates determination, based on
  information provided under oath, that there is
  probable cause to believe that specific objects
  that furnish evidence of a crime will be found at
  the location to be searched is necessary for a
  search warrant to be issued in conformity with
  the Fourth Amendment.

15

• 85. A reliable informant told the police that Sam
  was growing a half-acre of marijuana in the woods
  behind his garage. The police may enter Sams
  woods to determine the location of the marijuana
  plants and may seize them- both without a search
  warrant.
• 86.Understand that postponing a search of the
  suspects suitcase, taken from him or her at
  the time of arrest, until reaching the police
  station is never permitted as part of a search
  incident to an arrest.
• 87. Remember that the 4th amendment always
  requires probable cause, a warrant, or absence of
  a reasonable expectation of privacy.
• 88. Entering the cartilage of a residence
  constitutes a search within the meaning of the
  Forth Amendment.
• 89. Remember that a search is in fact constituted
  when officers 1) Squeeze soft luggage to
  determine contents, 2) Open luggage and check
  contents while the owner is not present, 3)
  Rummage through a garbage can while inside a
  suspects garage.

16

• Chapter 5
• 90. Officer West rents a motel room adjoining
  Mary Wannas room and drills a two inch hole in
  the base of the connecting wall so that he can
  overhear her conversations This is a violation
  of Mary Wannas Forth Amendment rights.
• 91.An officer is not required to obtained an
  interpretation in order to secretly tape-record a
  conversation when the officer is a party to the
  conversation, the conversation takes place in the
  back of a squad car and the conversation is
  audible to the officer.
• 92.Title III of the Omnibus Crime Control and
  Safe Streets does not require a judicial
  interpretation order to intercept communications
  with a device when one of the parties to the
  intercepted communication consents.
• 93. Under Federal law, before engaging a suspect
  in a conversation while secretly recording it, an
  officer should make sure that the recording
  equipment is in good working order and get on
  with the conversation.
• 94. Title III of the Omnibus Crime Control and
  Safe Streets Act allows telephone conversations
  to be intercepted without a judicial interception
  order when notice is posted on the telephone that
  calls may be monitored.
• 95. Under the procedures established by Title
  III, an officer who wishes to install a wiretap
  device must obtain written permission from the
  chief of police, request the prosecutor to issue
  an interception order, and prepare a sworn
  affidavit and apply to the court for an
  interception order.

17

• 96. If an officer, while participating in the
  execution of an interception order, hears a
  conversation about a crime not specified in the
  interception order, he or she should continue to
  intercept it, but inform his or her superiors and
  the prosecutors about new evidence about the new
  evidence as soon as possible thereafter.
• 97. A federal agent who overhears an
  incriminating conversation while executing a
  judicial interception order may disclose the
  content of the communication.
• 98. Be able to recognize examples of violations
  of the Title III Omnibus Crime Control and Safe
  Streets Act
• 99. Remember that Title III of the Omnibus Crime
  Control and Safe Streets Acts does not cover
  silent video surveillance, the use of pen
  register devices, and listening only with the
  ordinary sense of hearing.
• 100. Know what constitutes an illegal
  interception of a wire or oral communication.