constitutional law correctional services. copyright and terms of service copyright © texas...
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Constitutional Law Correctional Services
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Copyright and Terms of Service
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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.”
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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)
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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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Searches (continued)
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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Searches (continued)
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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Searches (continued)
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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Searches (continued)
Search warrant exceptions Persons Vehicles Places Open Fields Anything with consent Abandoned property Inventory Plain View
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Searches (continued)
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 (continued)
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 (continued)
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 (continued)
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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Searches (continued)
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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Searches (continued)
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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Searches (continued)
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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Sixth Amendment (continued)
Trial By Jury Purpose
Protect against corrupt or overzealous prosecutor
Protect against the compliant, biased or eccentric judge
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Sixth Amendment (continued)
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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Sixth Amendment (continued)
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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Sixth Amendment (continued)
Trial in the state and the district where crime occurred
Notice of the nature of the accusation
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Sixth Amendment (continued)
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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Sixth Amendment (continued)
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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Sixth Amendment (continued)
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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Sixth Amendment (continued)
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.
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