Due Process of Law

1. Due Process of Law The Fifth & Fourteenth Amendments

2. Due Process of Law • “No person shall be deprived of life, liberty, or property without due process of law” • Due process (“the right to have your rights”) is guaranteed twice in the Constitution – • The 5th Amendment prohibits the FEDERAL government from violating due process • The 14th Amendment prohibits the STATE governments from violating due process

3. Interpreting Due Process • The Supreme Court has never clearly defined the meanings & guarantees of due process; decides on a case-by-case basis • Includes explicit (written) AND implied rights • Due process decisions balance the rights of individuals against state police powers • Police Powers: Each state may act to protect public health, safety, morals, and general welfare

4. Properties of Property • Property rights are closely connected with liberty and freedom • Contracts clause of the Constitution forbids states from passing any law “impairing the obligation of contracts” – fear that states would cave to pressure from debtors and declare debts to be null and void • If a contract is violated, the other party is entitled to “the benefit of the bargain;” if no remedy can be achieved, liability may not exist

5. Is Mi Casa Su Casa? States MAY impose limits on property rights: • May protect public welfare using police powers (meat inspection, worker safety, child welfare) • May exercise right of eminent domain – power to take private land for public purposes – normally used in cases of clear public need i.e. roads, bridges, etc. (Fifth Amendment: [No private property shall] be taken for public use, without just compensation)

6. Is Mi Casa Su Casa? • Eminent Domain (cont.) • Kelo v. New London 2005: City used eminent domain to condemn privately owned real property for use as a private redevelopment plan. Ruling: city’s proposed disposition qualified as “public use” within meaning of 5th Amendment Takings Clause • Controversy over “takings:” when states restrict property rights to the point of making that property less valuable; what is “just” compensation for land? • Pre-1937, Supreme Court more protective of property rights; since, leans more toward public welfare

7. Types of Due Process • There are two types of due process: • PROCEDURAL DUE PROCESS deals with HOW LAWS ARE APPLIED – the actions of police, the courts, etc. taken to carry out laws cannot violate a person’s rights – must: • Observe Bill of Rights • Provide reasonable notice • Provide chance to be heard

8. Types of Due Process • SUBSTANTIVE DUE PROCESS deals with WHAT LAWS SAY -- the law as it is written cannot violate a person’s rights • BOTH types of due process must be respected • BRANIAC QUIZ: Procedural or substantive? • Police strip searches • Compulsory vaccination laws • Minimum wage law • Firing city employee without a hearing

9. The Right to Privacy • Due process is also part of the basis of the right to privacy, a right implied from a “penumbra of rights” found in the 3rd, 4th, 5th, and 14th Ams • It is defined as the “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy” • First established in Griswold v. Connecticut (1965); used in Roe v. Wade (1972) to define limits of antiabortion laws

10. Search and Seizure The Fourth Amendment

11. The 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.”

12. Elements of the 4th • Fourth Amendment concerns are split into three issues: • Did a search actually occur? • Was the search unreasonable? • If a person was arrested or property was confiscated (“seized”), was the seizure unreasonable?

13. Seizure (Non-Epileptic) Arrests (seizures of people) may be conducted: • With a warrant issued upon “probable cause” • Without a warrant in emergencies: cases of “hot pursuit” (high-speed chase) or when probable cause exists (domestic violence) • Citizen’s arrest: Warrantless arrest based on a citizen’s report of a crime (citizen report constitutes probable cause)

14. Plain View Doctrine • To determine whether a search occurred, the courts consider whether or not the individual displayed a REASONABLE EXPECTATION OF PRIVACY • Items in PLAIN VIEW are not subject to search & seizure challenges because no search is required to see them

15. Searches To conduct a search when a search is required, police must have one of three things: 1. Permission from someone with “standing” (Standing: authority to give consent) 2. A court-issued search warrant based on probable cause (more evidence than not), specifically describing the place to be searched and object(s) sought 3. Exigent circumstances (An emergency situation where evidence might disappear before a warrant could be obtained)

17. Searches, ultra technical: Searches may also generally be conducted: • If probable cause exists & an automobile is involved • Terry v. Ohio: if police have “reasonable articulable suspicion” that a crime is afoot and officer safety is threatened (“officers may ensure that their questions about their own safety are not answered with the barrel of a gun”) – called a “Terry Stop” search, officers may do a limited pat-down search for weapons only, unless come across something they immediately recognize as contraband

18. Searches, ultra technical: Searches may also generally be conducted: • When police make a lawful arrest (limited to area within control of individual being arrested) • At border crossings • At schools (random drug tests on students involved in extracurricular activities – Board of Pottawatomie v. Earls 2002)

19. The Exclusionary Rule • Established for state cases in Mapp v. Ohio (1961); for federal cases in Weeks v. U.S.: Evidence gained as the result of an illegal search or seizure cannot be used against the accused • “Fruit of the poison tree” • Restrictions: 1. If evidence would ultimately have been discovered by lawful means 2. Good faith or honest mistakes by police officers or courts

20. The Exclusionary Rule • Supporters of Exclusionary Rule claim discourages police misconduct • Critics claim lets crooks “off the hook” on technicalities – why should society pay for misconduct of a few overzealous police officers? • BRANIAC QUERY: Why should it? What would be the Constitutional rationale? Or shouldn’t it? • Truly a fundamental question: Does protecting the innocent necessarily entail sometimes protecting the guilty? Who rules?

21. Exceptions/Controversy • Cars – no warrant is needed because they are “moveable scenes of crime” IF probable cause exists to believe the vehicle is involved in illegal activities • Schools – school officials can search with probable cause (or really no reason at all) – in loco parentis authority; private citizens cannot violate the Fourth Amendment rights of others (binding on police only)

22. Exceptions/Controversy • Wiretapping – constitutional protection against, except in situations preapproved & closely monitored by courts (okay, sort of…NSA leaks in 2006 revealed it was engaged in domestic phone record analysis) • Foreign Intelligence Surveillance Act (1978): established a FISA court to authorize electronic surveillance of telephones, etc. for foreign intelligence purposes, Requires federal government to go through this court if wants to conduct such surveillance (in theory)

23. The Patriot Act (2002) Designed to combat terrorism by: • Giving FBI and CIA greater authority to • Wiretap phones • Monitor email • Survey financial and student records • Conduct searches without prior notification • Giving federal gov power to deport/detain noncitizens without judicial appeal • In essence, has strengthened power of federal government and weakened protections of 4th Amend