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Bill of Rights & Criminal Justice

by: Freddi Marsillo

Bill of Rights & Criminal Justice SOC 2146

Marketplace > George Washington University > Sociology > SOC 2146 > Bill of Rights Criminal Justice
Freddi Marsillo
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About this Document

These notes include what was covered during the first week of class, plus a little extra that we haven't talked about yet.
The Bill of Rights and Criminal Justice
Saltzburg, S
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This 13 page Class Notes was uploaded by Freddi Marsillo on Monday August 29, 2016. The Class Notes belongs to SOC 2146 at George Washington University taught by Saltzburg, S in Fall 2016. Since its upload, it has received 35 views. For similar materials see The Bill of Rights and Criminal Justice in Sociology at George Washington University.

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Date Created: 08/29/16
Bill of Rights & Criminal Justice – Week 1 8/31/16 8:38 PM 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 o Jury trials or judge trials o Appeals go to court of appeals U.S. Courts of Appeal • 3 circuits – (1 through 11, D.C. and Federal) th o 4 circuit – North Carolina, South Carolina, VA, West VA, MD) o 9 th circuit – AL, AR, CA, HAW, ID, MON, NEV, OR, WASH o District of Columbia circuit o Federal circuit hears no criminal cases • Panels of 3 judges to hear appeals o Also En Banc (Full Court) appeals U.S. Supreme Court • 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 • If one justice is absent, five votes are required to have a decision o 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” o 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 o 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 o 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 • US Supreme Court (USSC) has a conference on Fridays and votes on cases • 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 o Trial court – Supreme Court o Appeals Court – Appellate Division, Supreme Ct o High Court – Court of Appeals • Federal issues can go to USSC An Example: Virginia State Courts • Court not of record – General District Ct o 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 o DC Superior o NY Supreme o 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 is outside the scope of our consideration Introduction: Federal and State Law Enforcement • 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 o 94 US attorneys have prosecution power • Attorney General of most states have limited prosecutorial power o NJ is one exception • Most states – local prosecutors (DAs or Commonwealth Attorneys (VA) have power) o Unregulated by attorneys general • Intelligence agencies o 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 o Attorney General cannot force director to act o E.g., clash between Attorney General Barr and Director Sessions o E.g., clash between Attorney General Reno and Director Freeh 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 o 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 o Probable cause and/or warrant • If there is no search, there are no constitutional rules • 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 o For example, a police office asks someone to commit a search for 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 o So a warrantless search may be presumed to be unreasonable o Most searches and seizures are without warrants • 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 • 4 thamendment “protects people, not places” • Overrules Olmstead and Goldman • Justice Harlan’s concurrence states test o Subjective and objective component 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 Exposing Information to Third Parties • Bank records can be obtained by government; 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 • 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 • How is this different from Katz? • Could the police have put a pen register on the phone booth? Greenwood (1988) • Held: No expectation of privacy in trash o Why not? o Don’t most people think that their trash will not be examined by others? o What if you live in a neighborhood where you are not permitted to dump your own trash? o What is the probability that someone actually will look through your trash? Aerial Surveillance • Ciraolo (1986) – surveillance from 1000 feet of backyard where marijuana was found • Rationale: planes fly over houses and yards • 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 th protected by the 4 Amendment • What if the room is cleaned daily? Does that affect a privacy argument? • If a police officer poses as a cleaning person, does that offend a reasonable expectation of privacy? • If there is an expectation of privacy, how is this different from dealing with phone companies and banks? 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 • Good illustration of the fact that there is a reasonable expectation of privacy when 5 Justices say you do Dogs and Chemical Tests • Drug sniffing dogs generally do not involve searches when they sniff property • Dogs sniff 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 Divided court o Justice Scalia for majority o Sotomayor worries about earlier cases 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 o District court suppressed the GPS data obtained while the vehicle was parked at Jones’ residence, but held the remaining data admissible o Jones was convicted o DC circuit court reversed, concluding that use of the GPS violated 4th Amendment US v. Jones (Scalia, joined by Roberts, Kennedy, Thomas and Sotomayor) • “We hold that the govt’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’” th • “The text of the 4 Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures’; the phrase ‘in the persons, houses, papers, and effects’ would have been superfluous” th • “Consistent with this understanding, our 4 Amendment jurisprudence was tied to common law trespass, at least until the th latter half of the 20 century” • “Jones’ 4thAmendment rights do not rise or fall with the Katz formulation. At bottom, we must assure preservation of that degree th of privacy against government that existed when the 4 Amendment was adopted” 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 • Turns Katz on its head • Trespass before Katz = search • Person may not legitimately demand privacy for activities conducted out of doors in fields o Open fields do not provide setting for intimate activities o Open fields need not be open or a field o A field is not a person, paper, house, or effect Curtilage Factors • Distance between house and other area • Whether the area is within a fence or enclosure that includes the home • Uses to which the area is put • Steps taken by citizen to protect the area from view • Dunn: barn outside the curtilage What Would the Framers Have Said About Oliver • Rejects idea that a trespass is a search • Previously, this was well established • 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 o There will be no suppression of evidence • Whatever remedy is available is up to state law • Damages may be nonexistent, and guilty persons are not likely to sue Students and Gov’t Employees • Public school students have some expectation of privacy but not as much as adults o Reasonable suspicion rather than probable cause is the standard o Redding: strip search of 13-year old suspected to have over- the-counter drugs was unreasonable • Public employees sometimes have privacy protection o Quon (2010): no privacy in pager owned by city and issued to sergeant who knew that the city reserved the right to monitor activity 8/31/16 8:38 PM 8/31/16 8:38 PM


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