Unit 5: Written Examination Preparation
Constitutional Law
It has been said that the government ofthe United States is a “government oflaws, and not of men.” Our government is based on a written constitution which was adopted by the Founding Fathers. It has proven to be a remarkably elastic document because the Supreme Court has assumed the authority to interpret it in conformity with the times.
The U. S. Constitution sets forth the powers and duties of Congress, guarantees writs of habeas corpus to people who are illegally imprisoned, and prohibits ex-post facto laws. In other words, a person cannot be punished for an act which was not made illegal until after he committed it.
The Constitution also sets forth the three branches of government: executive, legislative, and judicial.
A series of amendments have been made to the Constitution over the years. The Constitution can be amended by Congress only after ratification by a majority of the states. It takes a two-thirds vote of each house of Congress to propose amendments to the Constitution, and a ratification of three - fourths of the states to enact them.
The first ten amendments to the Constitution are known as “The Bill of Rights.”
The amendments which have the greatest effect on law enforcement are the First, Fourth, Fifth, Sixth, and Eighth, and also the Fourteenth Amendment.
The First Amendment states that, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The meaning of this amendment is quite clear. It means that we can worship as we see fit; or not worship at all, if we are so inclined; and that all others have the same rights. The First Amendment has many implications for law enforcement. It means that newspapers can print stories and editorials which are critical of law enforcement. It means that in enforcing the laws pertaining to disorderly conduct and disturbing the peace, the police must tread a fine line
between a person’s right to be heard and right to dissent. And, it means that others have the right to go about their business without being unreasonably impeded by the dissenters.
Under the First Amendment, there are some limits. The right to free speech must be exercised reasonably. As U. S. Supreme Court Justice Oliver Wendell Holmes said, “The right to free speech does not include the right to yellfire!’ in a crowded theater, nor to disrupt an orderly assembly, church service, or session of the court by heckling, speaking out of order, or shouting to the point where the assembly cannot conduct its business. Likewise, one cannot incite to riot, nor accost others in a public place with vile or obscene language.” However, even in enforcing the latter provision, state supreme courts have said that the test of vile or obscene language is that it must be of such a character that it would provoke the average person to violence before it becomes against the law.
The Second Amendment states that “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.” What the Founding Fathers meant when they passed this amendment has been the source of considerable debate by the proponents and opponents of gun control legislation in recent years. Groups such as the National Rifle Association would argue that it is unconstitutional to impose even some of the current requirements requiring persons to be licensed to carry concealed and loaded handguns, and the federal record keeping requirements that are imposed on gun dealers.
On the other hand, the proponents of gun control, who feel the crime rate would be reduced in this country if firearms were less readily available, argue that the right to keep and bear arms was intended only to sanction the establishment of a militia such as the state National Guard, and did not mean an unfettered right of anyone to purchase or own firearms.
The Fourth Amendment states that “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, reported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.” Under this amendment, a man’s home is his or her castle, but it may not be used as a place of refuge for criminals. On fresh and immediate pursuit, an officer may follow a criminal who has taken refuge in a house or building to make the arrest. The courts have held that when a person is legally arrested, his or her person and effects may be thoroughly searched by an officer, and any weapon or contraband may be seized with a warrant and properly used as evidence. Nevertheless, the limitations of the Fourth Amendment are clearly visible to law enforcement officers as they go about their duties. It is important to note that the Fourth Amendment does not ban all searches and seizures - only those which are “unreasonable.” The courts have stated that arrest is a “seizure” and covered under the Fourth Amendment (Dunaway vs. New York), and the requirement that probable cause and a sworn affidavit exist before the issuance of an arrest or search warrant, and that a search warrant be very specific in describing the place to be searched and the items the officer will search for, all result from the Fourth amendment.
The Fifth Amendment states that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising on the land and naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy oflife or limbs; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process oflaw; nor shall private property be taken for public use without just compensation.”
We can see in this amendment the authorization for the uniform code of military justice and the separate system of trials which exist for persons in the military; the requirement for grand jury indictments in felony cases; the double jeopardy prohibitions that prevent a person from being tried twice for the same crime; and the rules regarding interrogation of criminal suspects which have led to such landmark U.S. Supreme Court decisions as Miranda v. Arizona.
The Sixth Amendment states that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
The statute of limitations, which prevents the prosecution of persons for “stale” crimes, the existence of judicial districts and territorial jurisdiction of courts, the hearsay evidence rule which prevents utilizing third-party testimony in a trial when the witness is available, and the right to a public trial and cross examination of witnesses all are derived from this Amendment. Even more important, the U.S. Supreme Court has interpreted this Amendment to mean that everyone has the right to a lawyer. Legal aid for indigent persons and the various Supreme Court cases which prevent the police from questioning persons who are already under indictment or represented by a lawyer, or those who wish to consult with a lawyer before questioning, find their basis in the Sixth Amendment.
The Eighth Amendment states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The right of a subject to bail, the size of fines and length of
sentences are all affected by this Amendment. People working in corrections will find that many of the rights of prisoners flow from the Eighth Amendment.
The Fourteenth Amendment, besides dealing with the apportionment of senators and representatives in
Congress and the public debt, provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state whereby they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Because of this Amendment, the U.S. Supreme Court in 1961, in the case of Mapp v. Ohio, started a revolution in the criminal law when they propounded a doctrine of dual sovereignty and dual citizenship. In other words, a person who is a citizen of the State of Ohio is also a citizen of the United States, and subject to the sovereignty and laws both of the State of Ohio and of the United States. A state cannot take away from one of its citizens a right which he or she would otherwise enjoy as a U.S. citizen. The Supreme Court used this theory to declare that federal court decisions were binding on local and state law enforcement officers, and not just on FBI agents and other federal officers. In theMapp case, more restrictive search and seizure requirements were imposed than existed at that time in most states. There followed in rapid succession other decisions such as Escobedo vs. Illinois and Miranda vs. Arizona dealing with interrogation of suspects, and a host of other decisions which encompassed nearly the entire Bill of Rights . State courts, from henceforth, could not interpret laws so as to take away any rights their citizens would otherwise have under the U.S. Constitution.
Although not specifically provided for in the Constitution, the Supreme Court in the Mapp case also adopted the so-called “exclusionary rule” which stated that any evidence in a criminal case which was gathered by illegal or unconstitutional means would not be admissible in court. The exclusionary rule has come under considerable attack recently. There is one school of thought that since the police can be sued civilly for violating a person’s constitutional rights, this should be an adequate remedy, and as the English courts say, “the criminal should not go free merely because the Constable blundered.” In Us. vs. Leon, the US. Supreme Court recently declared a “good faith” exception to the exclusionary rule in warrant cases. If the police make a search in good faith reliance on a search warrant which later turns out not to be valid, the evidence is still admissible.
Because the US. Constitution is seen as a flexible and elastic document, the stringency with which it is interpreted varies from decade to decade, depending on whether the majority on the court is composed of liberals, moderates, or conservatives.
In a succession of cases, the Supreme Court has modified a number of the earlier decisions in a way which has lifted some of the former restrictions on law enforcement. For example, in N Y. vs. Quarles, the court declared an exigent circumstances exception to the Miranda rule. In this case, police investigating an assault with a weapon and fearful of further violence asked a suspect what he had done with the weapon, without first warning him of his.Miranda rights and securing a waiver. The suspect told them, the police retrieved the weapon and the court permitted it to be introduced in evidence. Rules regarding the searches of automobiles have been relaxed, and the “good faith” exception to the exclusionary rule adopted.
Each state has its own constitution, patterned after, but not identical to the federal one. Although, under the Fourteenth Amendment, the state court cannot take away any rights guaranteed to a US. citizen under the federal constitution, it can read additional rights beyond those offered at the federal level into the state constitution. Such individual state departures from the federal rules make the task of law enforcement more difficult, particularly in the area of training. No longer can an FBI agent serve as guest lecturer in search and seizure at a local police academy, unless someone familiar with the state law follows up with an explanation of areas where the state Supreme Court has departed from the federal rule.
Any discussion of constitutional law, and particularly the Fourteenth Amendment, would be incomplete without a discussion of the impact which this Amendment and subsequent laws passed by Congress have had on the area of civil rights. References to due process and equal protection mean that a police officer can be subject to civil suit or even federal criminal penalties for violating a person’s civil rights. Police officers must be careful not to treat one person differently from another, regardless of their age, sex, sexual orientation, national origin, wealth, or position. Officers must also bear in mind that due process of law begins in the initial investigative stage of a case.
The United States Code is a consolidation of all the federal laws, classified by subject matter under 50 titles, enacted by Congress. Title XVIII deals with civil rights and Title XVIII, Chapter 13, Section 241, of the United States Code deals with civil rights violations, particularly conspiracy against the rights of citizens. It provides that if two or more persons conspire to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution, or laws of the United States, or because of his having so exercised the same, or if two, or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his or her free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 or imprisoned not more than 10 years or both. As used in this law, the term “citizens” includes persons within the boundaries of the United States, even illegal aliens.
Title XVIII, Chapter 13, section 242 of the United States Code deals with deprivation of rights under color of law. It states that whoever under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any state, territory or district to the deprivation of any rights, privileges, or immunities secured or protection by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, race, or creed than are prescribed for the punishment of citizens, shall be fined not more $1,000 or imprisoned not more than one year or both. This, and Title 42, Section 1983 of the United States Code comprise the criminal and civil penalties which can apply to the actions of police officers. Because of these laws, officers should zealously watch for any and all violations of the civil rights of citizens.