DUE PROCESS

DUE PROCESS

The government cannot deny you life, liberty, or property without due process… what is due process?

No solid definition Due Process- the government must

follow its own rules and act fairly Substantive Due Process- the substance of

government policies Example- is it legal for the government to strip search

you? (yes) Procedural Due Process- the procedures and

methods of government action Example- Can the government strip search you on the

side of the highway (no)

DUE PROCESS EXAMPLE

Rochin v California Man’s house was searched because they suspected

him of dealing drugs and when police entered his room they saw two capsules on his nightstand. The man swallowed them…

Police jumped on the man and took him to the hospital where his stomach was forcibly pumped. The capsules were found to contain morphine. He was tried and convicted for drug possession /use.

The Supreme Court overturned the case and set the man free because they decided that the police officers violated due process by jumping on the man and forcing him to get his stomach pumped.

How could the police officers have made their case instead?

DUE PROCESS

Due Process creates a “right to privacy” or right to be free from governmental intrusion

Most Pro-Choice Legislation has used the right to privacy to back up cases and ideas

Many people, while they don’t agree with abortions, are pro-choice because they feel that the decision to abort is a private one and should be made by the woman involved not the government

Many also feel that if you let the government censor abortion that the censoring of birth control might be the next step.

POLICE POWER

Police Power- power to promote the well being of the people

Can be used to: Promote Health

Ex- vaccines, alcohol, tobacco, pollution Promote Safety

Ex- weapons, seat belts, drunk drivers Promote Morals

Ex- gambling, prostitution, obscene materials Promote General Welfare

Ex- education, public utilities

FREEDOM AND SECURITY OF THE PERSON

Fourth Amendment:

“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, supported by oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.”

Balance between two competing interests: protecting privacy and catching criminals.

4th Amendment applies whenever a person has a “reasonable expectation of privacy.”

Key issue is often what govt. actions are “reasonable” and “unreasonable.” case-by-case basis.

ISSUES INVOLVED WITH THE 4TH

A police officer “is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” “Pat-downs” for hard objects are okay,

BUT nothing else.

WHAT’S REASONABLE? TERRY V. OHIO (1968)

SEARCHES AND SEIZURES

4th Amendment Created to protect against writs of assistance or

blanket search warrants Search Warrant- court order authorizing a search Police must also have probable cause

In schools they only need reasonable suspicison What is “probable cause”?

Evidence that a particular person was reasonably likely to have committed a particular offense.

Somewhere between an officer’s “hunch” and absolute fact.

Must be proved to an impartial judge. MANY exceptions to the 4th.

http://www.flexyourrights.org/busted/movie_clips

FLEX YOUR RIGHTS!

Whenever a person consents to a search Borders checkpoints and

airports Sobriety checkpoints

BUT NOT drug checkpoints School athlete drug tests Evidence “in plain view” Hot Pursuit Movable Crime Scene Scene of Lawful Arrest School searches Emergency Situations

POLICE DON’T NEED A WARRANT FOR…

WHAT IF POLICE FIND EVIDENCE WITHOUT HAVING A LEGAL SEARCH WARRANT?

The Exclusionary Rule- evidence obtained by an illegal act of police cannot be used at trial

Exceptions Nix v Williams- inevitable discovery United States v Leon- “good faith” searches Maryland v Garrison- honest mistakes

http://abcnews.go.com/GMA/SCOTUS/story?id=7380771&page=1

WHERE DO YOU STAND?