VI.                    Crime and Due Process

1.         With crime, the trick is not only to decide what the Constitution says & means, but also how to enforce it.

2.         There are two ways to protect people against unreasonable searches: let the evidence be introduced and used and punish the cop if it’s found that the search was unreasonable or just not introduce the controversial evidence at all (most democratic nations use the first method, the U.S. uses the second).

                                                                i.      The American method relies on the exclusionary rule, which says that evidence gathered in violation of the Constitution cannot be presented in court (this has been used to apply to unreasonable searches and to the right not to be compelled to incriminate oneself).

                                                               ii.      In 1949, the Court said that the exclusionary rule did not apply to states, but in 1961, it reversed that decision in Mapp v. Ohio.

3.         To search a home, now, a search warrant must be issued by a judge who is persuaded that there is probable cause (a good reason) that a crime has been committed and evidence that would prove that crime would be found at the location that the search warrant says.

                                                                i.      The police can search a building if the person consents to a search; a person and things in plain view and things or places under his immediate control can be searched if he’s arrested.

                                                               ii.      A person’s body has the ultimate protection from unreasonable searches, followed by his home (motor homes excluded) and then his car.

                                                              iii.      These rights only protect a person from being searched by the gov’t, not by private citizens.

4.         While private companies can order drug tests at will, the federal gov’t must have a concern for public safety or national security if it wishes to order people to undergo drug/AIDs tests, etc…

5.         Originally, the ban on being forced to give evidence against oneself was intended to prevent the use of torture or “third degree” police tactics to extract confessions, but after the Miranda case, the Court ruled that a person also had be given his “Miranda rights,” the right to remain silent, the right to a lawyer, the right to have a lawyer present during the issuing of statements, etc…

                                                                i.      Btw, this doesn’t apply to confessions given in prison what turns out to be undercover officers.

6.         The courts have since begun to decide many cases in ways that retained the exclusionary rule but gave officers greater freedom and by incorporating the “good-faith exception” would include evidence gather even if the search warrant was defective for a minor reason (typo, wrong forum, etc…).

7.         “Overriding considerations of public safety” could justify questioning a person w/o reading his rights.

8.         Evidence cannot be excluded if it would “inevitably” been found.