Search and Seizures and Interpreting Privacy in the Bill of Rights

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1 You do not need your computers today. Search and Seizures and Interpreting Privacy in the Bill of Rights How has the First Amendment's protection from unreasonable searches and seizures, as well as the interpreted right to privacy, been incorporated as a right of all American citizens?

2 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.

3 Police entered the home of Fremont Weeks and seized papers which were used to convict him of transporting lottery tickets through the mail. This was done without a search warrant. Weeks took action against the police and petitioned for the return of his private possessions. Did the search and seizure of Weeks' home violate the Fourth Amendment? (9-0 decision) Yes. The Court held that the seizure of items from Weeks' residence directly violated his constitutional rights. As did the government's refusal to return Weeks' possessions violated the Fourth Amendment. This was the first application of what eventually became known as the exclusionary rule, meaning illegallyobtained evidenced must be excluded from use in court. (Only applied to federal cases.)

4 WARREN COURT Dollree Mapp was convicted of possessing obscene materials after a warrantless police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression and illegal search and seizure. May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding? (6-3 decision) No. The Court declared that "all evidence obtained by searches and seizures in violation of the Constitution is, by the Fourth Amendment, inadmissible in a state court." Mapp had been convicted on the basis of illegally obtained evidence. This applied the exclusionary rule and incorporated the 4 th Amendment to the states.

5 How the First, Fourth, Fifth, Ninth, and Fourteenth Amendments add up to this incorporated right.

6 WARREN COURT Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counseling, and other medical treatment, to married persons for purposes of preventing conception. Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives? (7-2 decision) Though the Constitution does not mention a right to privacy, the guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.

7 BURGER COURT Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and Thurgood Marshall. Does the Constitution embrace a woman's right to terminate her pregnancy by abortion? (7-2 decision) The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling.

8 We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. Justice Brennan (majority opinion)

9 REHNQUIST COURT In 1986, the state of Missouri enacted legislation that placed a number of restrictions on abortions. The statute's preamble indicated that "[t]he life of each human being begins at conception," and the law codified the following restrictions: public employees and public facilities were not to be used in performing or assisting abortions unnecessary to save the mother's life; encouragement and counseling to have abortions was prohibited; and physicians were to perform viability tests upon women in their twentieth (or more) week of pregnancy. Lower courts struck down the restrictions. Did the Missouri restrictions unconstitutionally infringe upon the right to privacy or the Equal Protection Clause of the Fourteenth Amendment? (5-4 decision) The Court held that states have the right to regulate abortion, holding that the Due Process Clause did not require states to enter into the business of abortion and did not create an affirmative right to governmental aid in the pursuit of constitutional rights. The Court upheld the viability testing requirements, arguing that the State's interest in protecting potential life could come into existence before the point of viability. The Court emphasized that it was not revisiting the essential portions of the holding in Roe v. Wade.

10 REHNQUIST COURT The Pennsylvania legislature amended its abortion control law in 1988 and Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement. Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade? (5-4 decision) The Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement.

11 REHNQUIST COURT Responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. Do these criminal convictions under the Texas "Homosexual Conduct" law violate the Fourteenth Amendment guarantee of due process and the Constitutional right to privacy? (6-3 decision) In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. The Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

12 Exclusionary Rule prevents illegallyobtained evidence from being used in court. Justice Louis Brandeis defined privacy as the right to be left alone. Griswold v. Connecticut (1965) established the Constitutional right to privacy. Privacy has been interpreted as a fundamental Constitutional right by virtue of the 1 st, 3 rd, 4 th, 5 th, and 9 th Amendments.

13 -Read Linda Monk, pp on the Fourth Amendment and pp on the right to privacy. -EXAM PREP: Study your test preparation book, vocabulary, and our unit materials for UNIT 3: Political Parties, Interest Groups, and the Mass Media.