Constitutional Law Correctional Services. Copyright and Terms of Service Copyright © Texas Education Agency, 2011. These materials are copyrighted © and

Constitutional Law Correctional Services

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Copyright and Terms of Service

Copyright © Texas Education Agency, 2011. These materials are copyrighted © and trademarked ™ as the property of the Texas Education Agency (TEA) and may not be reproduced without the express written permission of TEA, except under the following conditions:

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3Copyright © Texas Education Agency 2011. All rights reserved.


THE FOURTH AMENDMENTPart 1:

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Fourth Amendment

“The right of the people to be secure in their persons, houses, papers and effects and 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.”

Copyright © Texas Education Agency 2011. All rights reserved.Images and other multimedia content used with permission.

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+ + + +

0% 10%Gut

45%Reasonable Suspicion

51%Probable Cause

Clear and Convincin

g Evidence

98% Beyond a Reasonable Doubt

Levels of Knowledge Chart


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Probable Cause

Likelihood that a crime has occurred and that the suspect is linked to the crime by some means

Example: a burglar alarm went off at a Jones Department Store at 2 A.M. You are behind the building , wearing all black and carrying a T.V. The store carries T.V.s. There is broken glass on the ground and a window next to the back door of the store is broken.


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Probable Cause (continued)

Is made of building blocks. The building blocks in and of themselves may not be enough for probable cause. It may take more than one of the building blocks to equal probable cause.

Building Blocks Flight Furtive act or movement Hiding Attempt to destroy evidence Resistance of officers Admissions or confessions


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Probable Cause (continued)

Building Blocks (continued) Evasive answers/conflicting stories Unreasonable explanations Physical evidence (latent/voice prints, hair,

handwriting, DNA, guns) Identification of the suspect by a witness Contraband or weapons in plain view Criminal record Hearsay information (anonymous tip) Unusual or suspicious conduct Drug detecting dogs Police radio broadcast


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Arrest

Arrest – A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by a person having authority to arrest (Criminal Code of Procedure (CCP) 15.22)


http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.15.htm


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Arrest (continued)

Elements of arrest Intent Authority Custody (Seizure or detention) Understanding of the subject

When and how an arrest can occur An arrest may be made anytime of the day or

night (CCP 15.23) In making an arrest, all reasonable means are

permitted to be used to effect it. No greater force, however, shall be resorted to than is necessary to secure the arrest and detention of the suspect (CCP 15.24)




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Arrest (continued)

Custody Constructive Custody

Confined, imprisoned, in custody Actual, corporeal and forcible detention of

a person Detention within limits

Restraint Control exercised over another Certain limits Subject to “general authority”


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Arrest (continued)

Authority to arrest without a warrant CCP 14.01 – offense within view CCP 14.02– offense within view of a

magistrate CCP 14.04– Felony offense, no time to

procure a warrant because the offender is about to escape





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Arrest (continued)

Authority to arrest without a warrant (continued) CCP 14.03

Felony offense Breach of peace Disorderly conduct or other chapter 42 offense Public intoxication Inchoate offense Protection (assault) Family violence (assault bodily injury) Protective Orders Prevent theft




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Show of Force and Authority Temporary Detention

Reasonable suspicion Activity occurring/just occurred Person connected to activity Limited time Florida v. Royer, U.S. Supreme Court case

that ruled an investigative stop can last no longer then necessary to complete investigation. The scope of detention must match the justification.


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Show of Force and Authority (continued)

Stops No “fit” time/place Description of wanted person Emotional, frightened, intoxicated Running/furtive movements Loitering/hanging out/look out Crime scene area


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Show of Force and Authority (continued)

Stops (continued) Terry v. Ohio, U.S. Supreme Court case that

ruled that officers may complete a “frisk” of person’s outer clothing for safety. Unusual Conduct May be armed and dangerous Protection of self and others Suspicion of crime and weapon to be used Careful pat of outer clothing Alone and no backup Emotions or behavior of suspects


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Searches

Searches – A prying into hidden places for that which is concealed and it is not a search to observe that which is open to view


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Searches (continued)

4th amendment: Protection against unreasonable searches

and seizures Protects people, not places A search by definition involves an invasion

of an expectation of privacy (homes, cars, schools)

Warrant to search or arrest requires probable cause


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Search Warrant (CCP 18.01) Neutral, detached magistrate Probable cause Sworn affidavit Must include:

Specific offense committed Specific property to be seized Property is at the place to be searched



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Beyond a search warrant Protective sweep – look in everyone to make sure

there is no one hiding in the building. Any contraband viewed in plain view during the sweep can be charged to the person

Destruction of evidence – if the officer believes that someone is or is about to destroy evidence, they may go into areas not included on the search warrant

Additional Evidence – Discover more or possible evidence in plain view elsewhere on property

Hunt for evidence or contraband that, as a result of the initial search, they believe exists in another location on the property


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Categories of Evidence Fruits of a crime – items/materials

removed from a crime scene, i.e: tv taken from an electronics store

Tools of a crime – item used in the commission of a crime, i.e: crowbar, screwdriver

Contraband – anything that is illegal to possess or is used in a manner other than intended

Mere Evidence – items possessed that are illegal but not known by person possessing them to be illegal


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Search warrant exceptions Persons Vehicles Places Open Fields Anything with consent Abandoned property Inventory Plain View


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Searches with consent Can be withdrawn at any time Must be given by one with the

authority to give consent Can limit the scope of the search


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Searches at school Back-pack searches Locker searches Vehicles searches Strip searches Use of metal detectors Use of drug dogs Consent to search


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Searches at school (continued) To be reasonable a search must

be Justified Reasonable suspicion of law or

school violation Reasonably related to circumstances Conducted in reasonable mannerCopyright © Texas Education Agency 2011. All rights reserved.


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Searches at school (continued) Those with authority to do searches

Administrators must have reasonable suspicion including tips, past behavior, student’s reaction to questions

Police must have probable cause and a law violation


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Search incident to an arrest Arrest must be lawful Search area within the subject’s

immediate control Immediately following arrest To prohibit destruction of

evidenceCopyright © Texas Education Agency 2011. All rights reserved.


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Plain-view Doctrine – Coolidge v. New Hampshire, items in plain-view are seize able and property can be searched if intrusion is lawful, discovery is inadvertent, and it is immediately apparent that the property is contraband Initial intrusion must be lawful or in proper

position to view property Discovery must be inadvertent Must be immediately apparent that items are

evidence of a crime, contraband, or subject to seizure


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Exclusionary Rule (CCP 38.23) No evidence shall be admitted into a

criminal trial that was obtained in violation of constitutional rights

Mapp v. Ohio, any evidence seized illegally can be excluded from both state and federal trials



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FIFTH AMENDMENTPart 2


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Grand Jury

Grand Jury – an indictment must be returned by a Grand Jury


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Double Jeopardy

Double Jeopardy – suspect cannot be tried for the same offense twice Protections

Against a second prosecution for the same offense after an acquittal

Against a second prosecution Against multiple punishments for

the same offense Copyright © Texas Education Agency 2011. All rights reserved.


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Double Jeopardy (continued)

Double Jeopardy is lawful when: A person is convicted then appeals to

a higher court and the conviction is overturned

A person is convicted and requests new trial

There is a hung jury Can be tried at the federal and the

state level for the same crime


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Self-Incrimination

Brown v. Mississippi, the U.S. Supreme Court ruled that evidence from compulsory self-incrimination can not be used at trial

Facts: There was no evidence other than the confessions which were brutally obtained

Procedural Problem: the confessions were extorted by violence

Court holding: a violation of due process; cannot use evidence obtained from compulsory self-incrimination


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Self-Incrimination (continued)

Examples Producing an instrument of the crime Admission of defendant while

asserting 4th amendment rights Use at trial of defendant’s silence

after Miranda Requiring the defendant to appear

before Grand Jury that indicted him


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Self-Incrimination (continued)

Miranda v. Arizona, the U.S. Supreme Court established rights that must be presented to persons prior to interrogation Miranda Warning–Right against self-incrimination

and right to attorney representation “You have the right to remain silent. Anything

you say can and will be used against you in a court of law.”

“You have the right to an attorney. If you cannot afford one, one will be appointed to represent you.”

“You have the right to terminate this interview at anytime.”


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THE SIXTH AND THE FOURTEENTH AMENDMENTS

Part 3


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Sixth Amendment

Speedy trial – Barker v. Wingo, U.S. Supreme Court refused to adopt a strict time line test, i.e., there is no constitutional requirement to give a defendant a trial within a specified time limit.


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Sixth Amendment (continued)

Public Trial Purpose – to guarantee that the

defendant will be fairly and not unjustly condemned

Rights Distrust of secret trials General public may not be indiscriminately

excluded from the courtroom May be excluded because of misconduct

or overcrowdingCopyright © Texas Education Agency 2011. All rights reserved.


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Trial By Jury Purpose

Protect against corrupt or overzealous prosecutor

Protect against the compliant, biased or eccentric judge


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Trial By Jury (continued) Number of Jurors and Verdict

12 person jury is a historical accident States may have a jury of less than 12

members Federal juries have 6 members Unanimous verdict in state court is not required

by 6th amendment Unanimous verdict only required in federal trials

and Texas Felony jury must have at least 6 jurors and the

verdict must be unanimousCopyright © Texas Education Agency 2011. All rights reserved.


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Trial By Jury (continued) Impartial jury:

No discrimination because of race, sex, creed, color, religion, or otherwise

Systematic exclusion of a certain race not impartial

Requiring women to register a declaration expressing a desire to serve on a jury is constitutional


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Trial in the state and the district where crime occurred

Notice of the nature of the accusation


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Confrontation of opposing witnesses Washington v. Texas:

Defendant wanted co-defendant already convicted of same crime to testify at trial under Texas statute

U.S. Supreme Court held that the accused has a fundamental right to present his own witnesses to establish a defense


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Compulsory process for obtaining favorable witnesses Pointer v. Texas: U.S. Supreme Court ruled that

confrontation is a fundamental right and denial violates the 14th amendment’s guarantee of due process of law

Dying declaration is admissible in court as true and just testimony

Stenographic testimony of witness is acceptable if witness is dead or out of court’s jurisdiction.

Must show due diligence through bona fide actual search for a witness before evidence previously taken can be read at trial


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Assistance of counselGideon v. Wainwright

The U.S. Supreme Court ruled there is a right to counsel in all federal cases.

The 14th amendment requires states to provide counsel to indigent defendants in all felony cases.


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Fourteenth Amendment

Procedural Due Process Notice of proceedings Opportunity to prepare for a hearing Opportunity to be heard both in

presenting one’s claim and in combating the claim of the opponent

A fair hearing The hearing to be before an impartial

tribunal


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Fourteenth Amendment (continued)

Substantive Due Process There must be a proper purpose of the

statute There must be no substantial impairment

of constitutional rights The means used must be released to the

object sought There must be no conflict with valid

federal legislation A criminal statute must be clear so that a

person will know what is required of him Copyright © Texas Education Agency 2011. All rights reserved.


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RIGHTS IN THE CORRECTIONAL SYSTEM

Part 4


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Fourth Amendment

Fourth amendment – offenders and their property are subject to search at anytime. Rules regarding search and seizure do not apply to offenders in a correctional setting


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Fourth Amendment (continued)

Offenders are already in custody and therefore cannot be arrested

No warrant necessary to search offenders and their property

Seizure of anything that is contraband May be charged criminally No right to privacy


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Fifth Amendment

Offenders are afforded the same rights regarding self-incrimination and double jeopardy as defendants not incarcerated

Offenders do not have access to Grand Juries unless they are charged with a new crime

Officers are not required to give the Miranda warning prior to interrogation. It is only necessary for new charges.

Offenders are given due process in all forms of discipline and criminal proceedings


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Sixth Amendment

Offenders are given the same opportunity for a speedy and public trial as someone awaiting trial

Offenders are afforded a jury in any criminal proceedings

Offenders are notified of charges against themselves in both criminal and discipline proceedings


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Offenders have the right to confront witnesses and present witnesses on their behalf

Right to counsel Offenders are given the opportunity for

counsel if they cannot afford it during felony, criminal proceedings

Offenders do not have the right to counsel during institutional proceedings such as discipline hearings or parole hearings


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Fourteenth Amendment

Offenders are afforded due process whether it is an institutional proceeding such as a discipline hearing or a criminal proceeding


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Resources

082052669X, Constitutional Law, Bernard Schwartz, John Attanasio, and Norman Redlich, 1996.

Arlington Police Department training Texas Commission on Law Enforcement

Officer Standards and Education (TCLEOSE) http://www.tcleose.state.tx.us/

Texas Penal Code http://www.statutes.legis.state.tx.us/

The U.S. Constitution and the Bill of RightsCopyright © Texas Education Agency 2011. All rights reserved.


http://www.tcleose.state.tx.us/

http://www.statutes.legis.state.tx.us/

Documents

Constitutional Law Correctional Services. Copyright and Terms of Service Copyright © Texas Education Agency, 2011. These materials are copyrighted © and