Bill of Rights & Criminal Justice Quiz 1 Study Guide
Bill of Rights & Criminal Justice Quiz 1 Study Guide SOC 2146
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This 13 page Study Guide was uploaded by Freddi Marsillo on Friday September 16, 2016. The Study Guide belongs to SOC 2146 at George Washington University taught by Saltzburg, S in Fall 2016. Since its upload, it has received 65 views. For similar materials see The Bill of Rights and Criminal Justice in Sociology at George Washington University.
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Date Created: 09/16/16
Bill of Rights & Criminal Justice Quiz 1 Study Guide 9/16/16 12:26 PM Quiz: Monday, September 19 , 2016 th Syllabus and Rules for the Course – Overview • Book: American Criminal Procedure: Investigative (10 th edition) by Professor Saltzburg • Grading: 20% attendance/participation, 80% quizzes o No final exam What is a University Professor • Esteemed role • Academic rank at universities, typically with a doctoral degree and having done research Introduction: Federal Courts Federal Court Structure • Trials – U.S. District Court • Appeals – U.S. Court of Appeals • Final Review – U.S. Supreme Court Federal District Courts 94 districts • For example, east and west districts VA • For example, district NJ and district NV • District judges (Art. III) and magistrate judges (Art. I) • District judges preside alone • There are jury trials or judge trials • Appeals go to court of appeals U.S. Courts of Appeal • 3 circuits – (1 through 11, D.C. and Federal) • 4thcircuit – North Carolina, South Carolina, VA, West VA, MD) th • 9 circuit – AL, AR, CA, HAW, ID, MON, NEV, OR, WASH • District of Columbia circuit • Federal circuit hears no criminal cases • Panels of 3 judges to hear appeals • Also En Banc (Full Court) appeals U.S. Supreme Court • There are 9 justices • Most cases are discretionary review o Called certiorari • Can review all decisions of federal courts • Can review decisions of state courts on federal law • If 9 justices sit, five votes decide the case o The most common decision is 5 to 4 majority • If one justice is absent, five votes are required to have a decision • A 4-4 tie simply affirms the lower court • If two justices are absent, four votes are required for a decision • If 5 justices join an opinion, it is “an opinion of the court” • If there are dissents, the opinion for the court often is called the majority opinion • If 5 justices vote for a result but do not agree on an opinion, there is no opinion for the court • The result stands but there is little guidance for future cases • A plurality opinion is one in which 2 or more justices who support the winning result join but cannot give votes for the opinion • A dissenting opinion is one in which a justice votes against the majority and explains why • A justice may dissent without an opinion • A concurring opinion is an opinion by a justice who joins (is part of) the majority opinion, but wants to add something of his/her own • An opinion concurring “in the result” is one where a justice agrees with the result reached but does not join (does not agree) with a majority opinion • Sometimes there can be no majority opinion and several opinions concurring in the result • It takes 4 votes to grant review in a case • It takes a majority (usually 5 votes) to reach a result • Justices may disqualify (recuse) themselves in cases without explaining why • Justices may refuse to disqualify themselves even though asked to do so • Chief Justice assigns opinions if he is in majority • If Chief Justice is in Minority, Senior Associate Justice in Majority assigns the opinion • Seniority is measured by years on court State Courts States have similar structures but different names • New York, for example • Trial court – Supreme Court • Appeals Court – Appellate Division, Supreme Ct • High Court – Court of Appeals • Federal issues can go to USSC An Example: Virginia State Courts Court not of record – General District Ct • Also juvenile and domestic relations court • General Trial Court – Circuit Court • Appeals Court – Court of Appeals (Criminal only) • High Court – VA Supreme Court • Federal Issues can go to USSC Summary of the Typical State and Federal Systems • Trial Court • DC Superior • NY Supreme • VA Circuit • Intermediate Court of Appeals • State Supreme Court • US Supreme Court (USSC) • Federal District Court • Court of Appeals • US Supreme Court Processing a Case: Robbery Case in Virginia Trial – Circuit Court – Defendant convicted • Appeal – VA Court of Appeals – defendant loses • Discretionary review – VA Supreme Court – defendant loses or review is denied • Discretionary review – US Supreme Court – review is denied or defendant loses Habeas Corpus or Collateral Attack After a defendant has exhausted all appeals, including asking the US Supreme Court to review a case, the defendant may seek to challenge a conviction by a writ of habeas corpus • Habeas corpus = a writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person’s release unless lawful grounds are shown for their detention Introduction: Federal and State Law Enforcement There are more than 30,000 law enforcement agencies • Federal agencies o FBI, DEA, Secret Service, ATF, Park Police, and others • State and local agencies o State police, local police, sheriffs departments Attorney General of United States • 94 US attorneys have prosecution power • Attorney General of most states have limited prosecutorial power • NJ is one exception Most states – local prosecutors (DAs or Commonwealth Attorneys (VA) have power) • Unregulated by attorneys general Intelligence agencies • CIA, NSA, DIA, DHS • Intelligence agencies do not have general law enforcement responsibility • Patriot Act enabled law enforcement and intelligence to share info Prosecutors generally cannot force law enforcement to act • In theory, US Attorney General is boss of FBI, but director of FBI is senate confirmed for 10 year term Attorney General cannot force director to act Incorporation In 1791 Framers intended Bill of Rights to apply to federal government, not states • 14 thAmendment applied to states and the Supreme Court has held that the due process clause makes most provisions of the Bill of Rights binding on states • States can provide more protections than the federal constitution, but not less *When the Supreme Court says no, NO is the final answer. There is no way around this. * Katz – landmark case in search & seizure Searches and Seizures Who gets the benefit of the Fourth Amendment? (the right to be secure against unreasonable search and seizure) • US v. Verdugo-Urquidez (1990) • Distinguish between searches and seizures; both covered by amendment • It is possible to have a search but no seizure • Distinguish between substance and remedies • Exclusionary rule is a remedy • Only applies if there has been a search or a seizure o Exclusionary rule: a law that prohibits the use of illegally obtained evidence in a criminal trial Katz If there is a search, fourth amendment applies • Probable cause and/or warrant • If there is no search, there are no constitutional rules • It is critical to decide if there is a search State Action th 4 Amendment only applies to state actors (people who work for the government) th • Thus, police are bound by the 4 amendment, but private citizens are not • Private citizens who trespass may violate state law • But, private citizens cannot violate the 4 thamendment unless they act as agents of the state • For example, a police office asks someone to commit a search for him or her 2 Clauses 1) Right of the people to be secure against unreasonable searches and seizures 2) 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 • Reasonable clause comes first • But Supreme Court has determined that the warrant clause defines reasonableness in many circumstances • So a warrantless search may be presumed to be unreasonable • Most searches and seizures are without warrants o But there are many exceptions Some Exceptions to Warrant • Exigent circumstances • Stop and frisk • Some administrative searches • Incident to arrest • Voluntary consent • Where evidence is in plain view • Certain automobile searches • Arrests outside the home Katz (1967) Wagering info transmitted by phone • Katz in LA, phones Miami and Boston FBI listen in via tap • Court rejects “constitutionally protected area” analysis th • 4 amendment “protects people, not places” Abandoned Property Abandonment – no expectation of privacy • If police ask a suspect whether a suitcase is hers and she says no, she gives up any right to complain about a search • If you leave property out on the corner by your dorm, anyone can look at it and that includes the police o Including trash Exposing Information to Third Parties • Bank records can be obtained by government; that is not a search • The question is, how do you maintain privacy when you have to deal with banks, credit card companies and other third parties? Subpoenas vs. Searches A subpoena is a command to appear before an official or tribunal (court, grand jury, IRS, coroner’s inquest) • Recipient can move to “quash” so there is an opportunity to contest • A search is a forcible government intrusion – no opportunity to contest o Can sue later Pen Registers – Smith v. MD (1979) Decided when phone companies did not generally record local calls • Police installed a device to record numbers called on defendant’s phone • Supreme Court said this was not a search because Smith gave his information to the phone company Greenwood (1988) Held: No expectation of privacy in trash Aerial Surveillance Ciraolo (1986) – surveillance from 1000 feet of backyard where marijuana was found • Rationale: planes normally fly over houses and yards already Riley (1989) – helicopter surveillance of backyard from 400 feet (actually a 4-1-4 decision) • The question was whether helicopter hovering was routine o If so, no search o If not, search • *A reminder that what is private at one time may lose its status over time Hotels and Motels A person who rents a room has an expectation of privacy that is protected by the 4 thAmendment Bags on a Bus, Train, or Plane Bond (2000): office committed a search when he “manipulated” a canvas bag placed by Bond in an overhead bin above his seat • 7-2 ruling said that the 4thAmendment was violated in this case Dogs and Chemical Tests Drug sniffing dogs generally do not involve searches when they sniff property Dogs sniffing during routine traffic stops were upheld by Supreme Court • Florida v. Harris (2013): dog’s satisfactory performance in certification or training program is sufficient • Florida v. Jardines (2013): officer committed a search when he took a drug-sniffing dog to front porch of a house Field tests of items lawfully seized generally are not considered searches (Jacobsen 1984) Re-Opening Packages If a private person opens a package and finds contraband, calls the police and shows the police the contents, there is not governmental search (Jacobsen 1984) • If the government properly opens a package (with a warrant, for example) and finds contraband, seals the package up and delivers it to an addressee, and then arrests the addressee as soon as the package is delivered, there is no need for another warrant (no reasonable expectation of privacy) – called a controlled delivery (Andreas 1983) If the government waits a week to arrest, it may well need a warrant to open the package Sensory Enhancement Devices If police place a beeper in items before they are sold, they violate no right of the buyer and generally they can track the beeper without a warrant • If, however, they trespass to place a beeper inside a car they will be doing a search Use of flashlights and binoculars generally will not involve searches, but there are exceptional cases • Kyllo (2001): thermal imaging devices aimed at houses are searches • US v. Jones (2012): warrantless placement of GPS device on car was a search o 4 concurring justices are concerned with long-term surveillance US v Jones (2012) Government obtained warrant to install GPS tracking device on car registered to Jones’ wife • Warrant authorized installation in DC within 10 days but executed in th MD on 11 day o Government tracked the vehicle for 28 days o Indicted Jones and others for drug trafficking District court suppressed the GPS data obtained while the vehicle was parked at Jones’ residence, but held the remaining data admissible • Jones was convicted • DC circuit court reversed, concluding that use of the GPS violated th 4 Amendment Prisons and Jails Prisoners have no expectation of privacy (Hudson v. Palmer 1984) • Florence (2012): routine strip search of pretrial detainees, even those arrested for minor offenses, are okay Open Fields – Oliver (1984) No expectation of privacy in land outside the “curtilage” of a house • Person may not legitimately demand privacy for activities conducted out of doors in fields • Open fields do not provide setting for intimate activities • “Open fields need not be open or a field” A field is not a person, paper, house, or effect Curtilage Factors Curtilage = Distance between house and other area • Whether the area is within a fence or enclosure that includes the home What Would the Framers Have Said About Oliver Rejects idea that a trespass is a search • Difference between a truly open field and one to which public is denied access • Officers who trespass may violate state law o But they do not violate the Constitution There will be no suppression of evidence Students and Gov’t Employees Public school students have some expectation of privacy but not as much as adults • Reasonable suspicion rather than probable cause is the standard Redding: strip search of 13-year old suspected to have over-the-counter drugs was unreasonable Public employees sometimes have privacy protection • Quon (2010): no privacy in pager owned by city and issued to sergeant who knew that the city reserved the right to monitor activity Riley v. California (2014) (Roberts) • Riley’s car stopped with expired registration tags; officer discovers his license was suspended • Officer examined cell phone and a detective further examined it at station • Riley convicted of weapons and gang-related crimes Wurie arrested after drug sale • At station, officers seize 2 cell phones • See calls coming in from “my house” • Call log indicates number; officers trace it to an apartment and obtain search warrant Wurie convicted of drug and being a felon in possession • Held: Robinson strikes appropriate balance for physical objects but “a search of information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson” • Rejects hypo that officers could be alerted that friends are headed to the scene No reason to believe that remote wiping and data encryption are reasons for search Exigent circumstances may permit search • Exigent circumstances: exceptions to the general requirement of a warrant under the Fourth Amendment searches and seizures • Exigent circumstances occur when the a law enforcement officer has a probable cause and no sufficient time to secure a warrant Emphasizes storage capacity and privacy • Data may not even be stored on the device itself – it might be on the cloud • The court rejected Gant approach (search for evidence of crime of arrest) • Also rejected US argument that officer should be able to at least search the call log; not analogous to Smith (the pen register case) • Rejected California argument that officers could search if they could have obtained the same information from a pre-digital source Riley v. California (2014) (Alito, Concurring in Part) Not convinced that ancient rule of search incident of the person is based on Chimel rationales (Chimel = search incident to arrest) • Really based on the need to obtain probative evidence o Probative = intending to prove • But does not see a workable alternative to the court’s approach • Concurred in part because he didn’t agree with this rationale to this search incident to arrest • But agreed with the end result: we should protect cell phones 9/16/16 12:26 PM 9/16/16 12:26 PM
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