Due Process of Due Process of LawLaw

The Fifth & The Fifth & Fourteenth Fourteenth

AmendmentsAmendments

Due Process of LawDue Process of Law ““No person shall be deprived of life, liberty, No person shall be deprived of life, liberty,

or property without due process of law”or property without due process of law” Due process (“the right to have your Due process (“the right to have your

rights”) is guaranteed twice in the rights”) is guaranteed twice in the Constitution –Constitution –

The 5The 5thth Amendment prohibits the FEDERAL Amendment prohibits the FEDERAL government from violating due processgovernment from violating due process

The 14The 14thth Amendment prohibits the STATE Amendment prohibits the STATE governments from violating due processgovernments from violating due process

Interpreting Due ProcessInterpreting Due Process The Supreme Court has never clearly The Supreme Court has never clearly

defined the meanings & guarantees of defined the meanings & guarantees of due process; decides on a case-by-case due process; decides on a case-by-case basisbasis

Includes explicit (written) AND implied Includes explicit (written) AND implied rightsrights

Due process decisions balance the rights Due process decisions balance the rights of individuals against state police powersof individuals against state police powers

Police Powers: Each state may act to Police Powers: Each state may act to protect public health, safety, morals, and protect public health, safety, morals, and general welfaregeneral welfare

Properties of PropertyProperties of Property Property rights are closely connected with Property rights are closely connected with

liberty and freedomliberty and freedom Contracts clause of the Constitution Contracts clause of the Constitution

forbids states from passing any law forbids states from passing any law “impairing the obligation of contracts” – “impairing the obligation of contracts” – fear that states would cave to pressure fear that states would cave to pressure from debtors and declare debts to be null from debtors and declare debts to be null and voidand void

If a contract is violated, the other party is If a contract is violated, the other party is entitled to “the benefit of the bargain;” if entitled to “the benefit of the bargain;” if no remedy can be achieved, liability may no remedy can be achieved, liability may not existnot exist

Is Mi Casa Su Casa?Is Mi Casa Su Casa?States MAY impose limits on property rights:States MAY impose limits on property rights: May protect public welfare using police May protect public welfare using police

powerspowers

(meat inspection, worker safety, child (meat inspection, worker safety, child welfare)welfare)

May exercise right of eminent domain – May exercise right of eminent domain – power to take private land for public power to take private land for public purposes – normally used in cases of clear purposes – normally used in cases of clear public need i.e. roads, bridges, etc. (Fifth public need i.e. roads, bridges, etc. (Fifth Amendment: [No private property shall] be Amendment: [No private property shall] be taken for public use, without just taken for public use, without just compensation)compensation)

Is Mi Casa Su Casa?Is Mi Casa Su Casa? Eminent Domain (cont.)Eminent Domain (cont.)

Kelo v. New London 2005: City used eminent Kelo v. New London 2005: City used eminent domain to condemn privately owned real domain to condemn privately owned real property for use as a private redevelopment property for use as a private redevelopment plan. Ruling: city’s proposed disposition plan. Ruling: city’s proposed disposition qualified as “public use” within meaning of qualified as “public use” within meaning of 55thth Amendment Takings Clause Amendment Takings Clause

Controversy over “takings:” when states Controversy over “takings:” when states restrict property rights to the point of making restrict property rights to the point of making that property less valuable; what is “just” that property less valuable; what is “just” compensation for land?compensation for land?

Pre-1937, Supreme Court more protective of Pre-1937, Supreme Court more protective of property rights; since, leans more toward property rights; since, leans more toward public welfarepublic welfare

Types of Due ProcessTypes of Due Process There are two types of due process:There are two types of due process: PROCEDURAL DUE PROCESS deals PROCEDURAL DUE PROCESS deals

with HOW LAWS ARE APPLIED – the with HOW LAWS ARE APPLIED – the actions of police, the courts, etc. actions of police, the courts, etc. taken to carry out laws cannot taken to carry out laws cannot violate a person’s rights – must:violate a person’s rights – must:Observe Bill of RightsObserve Bill of RightsProvide reasonable noticeProvide reasonable noticeProvide chance to be heardProvide chance to be heard

Types of Due ProcessTypes of Due Process SUBSTANTIVE DUE PROCESS deals SUBSTANTIVE DUE PROCESS deals

with WHAT LAWS SAY -- the law as it is with WHAT LAWS SAY -- the law as it is written cannot violate a person’s rightswritten cannot violate a person’s rights

BOTH types of due process must be BOTH types of due process must be respectedrespected

BRANIAC QUIZ: Procedural or BRANIAC QUIZ: Procedural or substantive?substantive?

1.1. Police strip searchesPolice strip searches2.2. Compulsory vaccination lawsCompulsory vaccination laws3.3. Minimum wage lawMinimum wage law4.4. Firing city employee without a hearingFiring city employee without a hearing

The Right to Privacy The Right to Privacy Due process is also part of the basis of Due process is also part of the basis of

the right to privacy, a right implied from a the right to privacy, a right implied from a “penumbra of rights” found in the 3“penumbra of rights” found in the 3rdrd, 4, 4thth, , 55thth, and 14, and 14thth Ams Ams

It is defined as the “right to be free, It is defined as the “right to be free, except in very limited circumstances, except in very limited circumstances, from unwanted governmental intrusions from unwanted governmental intrusions into one’s privacy”into one’s privacy”

First established in First established in Griswold v. Griswold v. ConnecticutConnecticut (1965); used in (1965); used in Roe v. WadeRoe v. Wade (1972) to define limits of antiabortion (1972) to define limits of antiabortion lawslaws

Search and Search and SeizureSeizure

The Fourth The Fourth AmendmentAmendment

The Fourth Amendment The Fourth Amendment

““The right of the people to be secure The right of the people to be secure in their persons, houses, papers, in their persons, houses, papers, and effects, against unreasonable and effects, against unreasonable searches and seizures, shall not be searches and seizures, shall not be violated, and no warrants shall violated, and no warrants shall issue, but upon probable cause, issue, but upon probable cause, supported by oath or affirmation, supported by oath or affirmation, and particularly describing the and particularly describing the place to be searched and the place to be searched and the persons or things to be seized.”persons or things to be seized.”

Elements of the 4Elements of the 4thth Fourth Amendment concerns are Fourth Amendment concerns are

split into three issues:split into three issues:

1)1) Did a search actually occur?Did a search actually occur?

2)2) Was the search Was the search unreasonable?unreasonable?

3)3) If a person was arrested or If a person was arrested or property was confiscated property was confiscated (“seized”), was the seizure (“seized”), was the seizure unreasonable?unreasonable?

Seizure (Non-Epileptic) Seizure (Non-Epileptic) Arrests (seizures of people) may be Arrests (seizures of people) may be

conducted:conducted: With a warrant issued upon “probable With a warrant issued upon “probable

cause”cause” Without a warrant in emergencies: cases Without a warrant in emergencies: cases

of “hot pursuit” (high-speed chase) or of “hot pursuit” (high-speed chase) or when probable cause exists (domestic when probable cause exists (domestic violence)violence)

Citizen’s arrest: Warrantless arrest based Citizen’s arrest: Warrantless arrest based on a citizen’s report of a crime (citizen on a citizen’s report of a crime (citizen report constitutes probable cause)report constitutes probable cause)

Plain View Doctrine Plain View Doctrine To determine whether a search To determine whether a search

occurred, the courts consider occurred, the courts consider whether or not the individual whether or not the individual displayed a REASONABLE displayed a REASONABLE EXPECTATION OF PRIVACYEXPECTATION OF PRIVACY

Items in PLAIN VIEW are not Items in PLAIN VIEW are not subject to search & seizure subject to search & seizure challenges because no search challenges because no search is required to see them is required to see them

Searches Searches To conduct a search when a search is required, To conduct a search when a search is required,

police must have one of three things:police must have one of three things:

1. Permission from someone with “standing”1. Permission from someone with “standing”

(Standing: authority to give consent)(Standing: authority to give consent)

2. A court-issued search warrant based on 2. A court-issued search warrant based on probable cause (more evidence than not), probable cause (more evidence than not), specifically describing the place to be specifically describing the place to be searched and object(s) soughtsearched and object(s) sought

3. Exigent circumstances3. Exigent circumstances

(An emergency situation where evidence (An emergency situation where evidence might disappear before a warrant could be might disappear before a warrant could be obtained)obtained)

Searches, ultra technical: Searches, ultra technical: Searches may also generally be conducted:Searches may also generally be conducted: If probable cause exists & an automobile If probable cause exists & an automobile

is involved is involved Terry v. OhioTerry v. Ohio: if police have “reasonable : if police have “reasonable

articulable suspicion” that a crime is articulable suspicion” that a crime is afoot and officer safety is threatened afoot and officer safety is threatened (“officers may ensure that their questions (“officers may ensure that their questions about their own safety are not answered about their own safety are not answered with the barrel of a gun”) – called a with the barrel of a gun”) – called a “Terry Stop” search, officers may do a “Terry Stop” search, officers may do a limited pat-down search for weapons limited pat-down search for weapons only, unless come across something they only, unless come across something they immediately recognize as contrabandimmediately recognize as contraband

Searches, ultra technical: Searches, ultra technical: Searches may also generally be Searches may also generally be

conducted:conducted: When police make a lawful arrest When police make a lawful arrest

(limited to area within control of (limited to area within control of individual being arrested)individual being arrested)

At border crossingsAt border crossings At schools (random drug tests on At schools (random drug tests on

students involved in students involved in extracurricular activities – extracurricular activities – Board Board of Pottawatomie v. Earlsof Pottawatomie v. Earls 2002) 2002)

The Exclusionary Rule The Exclusionary Rule Established for state cases in Established for state cases in Mapp v. Mapp v.

OhioOhio (1961); for federal cases in (1961); for federal cases in Weeks Weeks v. U.Sv. U.S.: Evidence gained as the result .: Evidence gained as the result of an illegal search or seizure cannot of an illegal search or seizure cannot be used against the accusedbe used against the accused

““Fruit of the poison tree”Fruit of the poison tree” Restrictions:Restrictions:

1. If evidence would ultimately have 1. If evidence would ultimately have been been discovered by lawful meansdiscovered by lawful means

2. Good faith or honest mistakes by 2. Good faith or honest mistakes by police police officers or courts officers or courts

The Exclusionary Rule The Exclusionary Rule Supporters of Exclusionary Rule claim Supporters of Exclusionary Rule claim

discourages police misconductdiscourages police misconduct Critics claim lets crooks “off the hook” on Critics claim lets crooks “off the hook” on

technicalities – why should society pay for technicalities – why should society pay for misconduct of a few overzealous police misconduct of a few overzealous police officers?officers?

BRANIAC QUERY: Why should it? What would BRANIAC QUERY: Why should it? What would be the Constitutional rationale? Or shouldn’t be the Constitutional rationale? Or shouldn’t it?it?

Truly a fundamental question: Does Truly a fundamental question: Does protecting the innocent necessarily entail protecting the innocent necessarily entail sometimes protecting the guilty? Who sometimes protecting the guilty? Who rules?rules?

Exceptions/ControversyExceptions/Controversy Cars – no warrant is needed because Cars – no warrant is needed because

they are “moveable scenes of they are “moveable scenes of crime” IF probable cause exists to crime” IF probable cause exists to believe the vehicle is involved in believe the vehicle is involved in illegal activitiesillegal activities

Schools – school officials can search Schools – school officials can search with probable cause (or really no with probable cause (or really no reason at all) – in loco parentis reason at all) – in loco parentis authority; private citizens cannot authority; private citizens cannot violate the Fourth Amendment rights violate the Fourth Amendment rights of others (binding on police only)of others (binding on police only)

Exceptions/ControversyExceptions/Controversy Wiretapping – constitutional protection Wiretapping – constitutional protection

against, except in situations preapproved & against, except in situations preapproved & closely monitored by courts (okay, sort of…closely monitored by courts (okay, sort of…NSA leaks in 2006 revealed it was engaged NSA leaks in 2006 revealed it was engaged in domestic phone record analysis)in domestic phone record analysis)

Foreign Intelligence Surveillance Act (1978): Foreign Intelligence Surveillance Act (1978): established a FISA court to authorize established a FISA court to authorize electronic surveillance of telephones, etc. electronic surveillance of telephones, etc. for foreign intelligence purposes, Requires for foreign intelligence purposes, Requires federal government to go through this court federal government to go through this court if wants to conduct such surveillance (in if wants to conduct such surveillance (in theory)theory)

The Patriot Act (2002)The Patriot Act (2002)Designed to combat terrorism by:Designed to combat terrorism by: Giving FBI and CIA greater authority toGiving FBI and CIA greater authority to

Wiretap phonesWiretap phones Monitor emailMonitor email Survey financial and student recordsSurvey financial and student records Conduct searches without prior Conduct searches without prior

notificationnotification Giving federal gov power to deport/detain Giving federal gov power to deport/detain

noncitizens without judicial appealnoncitizens without judicial appeal In essence, has strengthened power of In essence, has strengthened power of

federal government and weakened federal government and weakened protections of 4protections of 4thth Amend Amend