Chapter 1 & 3 Study Guide
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College of Southern Nevada *
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107
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Law
Date
Jan 9, 2024
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5
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Jonathan Torres Munoz
1
CHAPTER 1 - REVIEW QUESTIONS
1.
Identify several sources of rights.
The rights are legal, social, or ethical principles of freedom or entitlement.
2.
What is the incorporation controversy? What are the leading perspectives describing it?
The incorporation controversy is the Bill of Rights initially intended to check the exercise of federal power. The Fourteenth Amendment stating, “no shall any state deprive a person of life, liberty or property, without due process of law,” has made certain protections specified in the Bill of Rights applicable to the states.
3.
What rights have been incorporated? What rights have not?
The First, Fourth, Sixth, and Eighth Amendments have been fully incorporated. The Fifth Amendment has been partially incorporated, the second and seventh amendments have not been incorporated.
4.
In what ways can theory differ from reality?
You can always test a theory. Reality is stated as a fact.
5.
Compare and contrast the due process and crime control perspectives.
The due process is the principle that an individual cannot be deprived of life, liberty, or property without appropriate legal procedures and safeguards. Crime control model for law enforcement assumes absolute reliability of police fact-finding and treats arrestees as if they are already found guilty. The due process is also a cheaper way than the crime control process.
6.
Explain the federal court structure.
The federal court structure has three main levels: district courts (trial court), circuit courts (first level of appeal), and supreme courts of the United States (the final level of appeal in the federal system).
7.
How does a case arrive at the U.S. Supreme Court?
There are three ways a case can reach the supreme court. Appeals to Courts of Appeals Decisions, Appeals from State Supreme Courts, and under the Court's Original Jurisdiction.
8.
Distinguish between a bright-line decision and case-by-case adjudication.
Bright line decisions are preferable over case-by-case adjudications because with the bright line decisions the risk of subjectivity is taken out of the hands of the judges. 9.
How are the terms subjective and objective used in criminal procedure?
The terms subjective and objective are sometimes used to describe the thought process used in the Supreme Court decisions. Police conduct that is deemed objectively reasonable, or characterized by subjective reasonableness is conduct that would be considered reasonable by the police
officer engaged in the conduct.
Jonathan Torres Munoz
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10.In what ways have recent Supreme Court decisions shown increased faith in the police?
Many of the Court’s decisions of late have increased the power of law
11.What is judicial restraint? How does it compare to judicial activism?
Judicial restraint limits the power of judges to strike down a law. As opposed to the progressiveness of judicial activism, judicial restraint opines that the courts should uphold all acts and laws of Congress and legislatures unless they oppose the United States Constitution. 12.Is privacy a right? If not, why is it so important in many Supreme Court opinions?
Yes, privacy is a right. The First Amendment protects the privacy of beliefs. The Third Amendment protects the privacy of the home against the use of it for housing soldiers. The Fourth Amendment protects privacy against unreasonable searches. The Fifth Amendment protects against self-
incrimination, which also protects the privacy of personal information. 13.What happens, briefly, during the pretrial phase?
During the pretrial process, 90% of criminal cases are thrown out by guilty pleas rather than having a trial. Some cases that go to trial are sometimes decided before the trial begins. 14.What happens, briefly, during the adjudication phase?
In the legal process the judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties to come to a decision which determines rights and obligations between the parties involved.
15.What happens, briefly, beyond conviction?
Beyond conviction you are sentenced for your crime.
CHAPTER 3 - REVIEW QUESTIONS
Jonathan Torres Munoz
3
1.
Summarize the conflicting perspectives on the relationship between the warrant and reasonableness clauses of the Fourth Amendment.
The Fourth Amendment contains two basic clauses: The reasonableness clause, which proscribes unreasonable searches and seizures, followed by the warrant clause, which says that “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.” Some have
argued that the warrant clause gives meaning to the reasonableness clause, so that any search conducted without a warrant is deemed unreasonable, and
therefore unconstitutional.
2.
Define person, house, paper, and effect, as used under the Fourth Amendment.
The term person encompasses the individual, both internally and externally. House is a term that is broadly constructed to mean any structure that a person uses as a residence (and frequently a business) on either a temporary
or long-term basis. Papers and effects include nearly all personal items such as letters, diaries, memos, and countless other forms of tangible evidence. Effects is the catch-all category. It includes almost any other personal items that are not “papers”.
3.
Under what specific circumstances does the Fourth Amendment apply?
The Fourth Amendment protects against unreasonable searches and seizures and has been held to apply only when a person has a “legitament expectation to privacy”. 4.
When does a search take place under the Fourth Amendment? Explain both elements of a search, and discuss pertinent cases.
In most instances a police officer may not search and seize an individual's property unless the officer has probable cause that an individual has committed a crime or an arrest warrant. 5.
When can private parties be considered “government actors” for the purposes of the Fourth Amendment?
A private person can be treated like a government official if they act at the behest of a government official. When government officials join in on a private
search or instruct a private individual to conduct a search, the private individual can be viewed as a government actor within the meaning of the Fourth Amendment.
6.
What can authorities not do following a private-party search?
Authorities can not conspire with the private parties.
7.
Explain the notion of “reasonable expectation of privacy.” When does a person not enjoy an expectation of privacy? Cite relevant cases.
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Jonathan Torres Munoz
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Expectation of privacy is a legal test which is crucial in defining the scope of applicability of the privacy protections of the Fourth Amendment to the United States Constitution.
8.
What is a seizure? Distinguish between seizures of persons and seizures of
property.
Seizure of property occurs “when there is some meaningful interference with an individual’s possessory interest in that property”. A seizure of a person occurs when a police officer, by means of physical force or show of authority, intentionally restrains an individual’s liberty in such a manner that a reasonable person would believe that they are not free to leave.
9.
What is the doctrine of justification? Why is it important?
The more intrusive the police action, the higher the level of justification required. Conversely, the lower the level of intrusion, the lower the justification needed. Three primary levels of justification recognized by the courts are: probable cause, reasonable suspicion, and administrative justification.
10.Explain probable cause as well as acceptable sources of information for the establishment of probable cause.
Probable cause is a requirement found in the Fourth Amendment that must usually be met before the police can make an arrest, conduct a search, or receive a warrant. Courts usually find probable cause when there is a reasonable suspicion that a crime may have been committed or when evidence of the crime is present in the place to be searched. Under urgent circumstances, probable cause can also justify a warrantless search or seizure. Persons arrested without a warrant are required to be brought before
a competent authority shortly after the arrest for a prompt judicial determination of probable cause.
11.How can a mistake serve as a legitimate source of information in determining probable cause?
If information supplied by an informant or officer’s firsthand observations later
proves to be false, the courts will uphold the arrest or search, so long as the mistake was a reasonable one. When such a mistake is deemed unreasonable the courts will almost always reach a different conclusion. 12.What is the procedure for challenging a probable cause determination?
The Fourth Amendment requires police to have probable cause before they can obtain a search warrant or an arrest warrant. If the information contained in the warrant is insufficient to show probable cause, the search or arrest is deemed invalid. Therefore, the charges will be dismissed. To challenge probable cause, you must request a probable cause hearing at arraignment and hire an attorney to file a motion to dismiss.
Jonathan Torres Munoz
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13.What is “reasonable suspicion”? How does it differ from probable cause and other standards of justification?
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, but more than a “hunch”. Probable cause is the notion that there is enough evidence or circumstantial evidence to warrant a search.
14.What is “administrative justification”? How does it differ from reasonable suspicion and probable cause?
Instead of being based on probable cause or reasonable suspicion, administrative searches invoke a balancing test, weighing citizens’ privacy interest to ensure public safety.
15.Explain the balancing of interests associated with administrative justification.
Administrative justification is determined by balancing the interests of society with the privacy interests of the individual. Both reasonable suspicion and administrative justification are lower standards than probable cause.