Constitutional Law, Twelfth Edition (John C. Klotter Justince Administration Legal Series)

843 Pages·2010·3.78 MB·English

by  Jacqueline R. Kanovitz

Constitutional

LAW

twelfth
edition
Kanovitz
Jacqueline R.
John C. Klotter Justice Administration Legal Series
Constitutional Law, Twelfth Edition
Copyright © 1968, 1971, 1977, 1981, 1985, 1991, 1995, 1999, 2002, 2005, 2008, 2010
Matthew Bender & Company, Inc., a member of the LexisNexis Group
New Providence, NJ
ISBN-13: 978-1-4224-6326-0
Phone [phone]
Web Site www.lexisnexis.com/Anderson/criminaljustice
All rights reserved. No part of this book may be reproduced I any form or by any electronic or mechanical
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LexisNexis and the Knowledge Burst logo are trademarks of Reed Elsevier Properties, Inc.
Anderson Publishing is a registered trademark of Anderson Publishing, a member of the LexisNexis Group
Library of Congress Cataloging-in-Publication Data
Kanovitz, Jacqueline R.
Constitutional law / Jacqueline R. Kanovitz. – 12th ed.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-4224-6326-0 (softbound : alk. paper) 1. Criminal investigation–United States.
2. Constitutional law--United States. I. Title.
KF9625.K36 2010
342.73–dc22
2009052345
Cover design by Tin Box Studio, Inc. EDITOR Elisabeth Roszmann Ebben
ACQUISITIONS EDITOR Michael C. Braswell
Preface
Four decades have passed since the fi rst edition of this textbook. During
the 1960s and 1970s, the Supreme Court waged a campaign to reform the
criminal justice system through the selective incorporation of Bill of Rights
safeguards into the Fourteenth Amendment. Having constitutionalized crim-
inal procedure, the Supreme Court then elaborated a set of constitutionally
mandated restraints on police behavior. The “goodness” or “badness” of a
legal precept, nevertheless, depends on how well it works in practice. This can
only be known through empirical validation. So it is with constitutional inter-
pretations. Just as the 1960s and 1970s were periods of reform and tremendous
constitutional expansion, the current period is marked by solidifi cation and
correction.
Criminal justice became ensconced as a learned profession in the 1960s
when Congress recognized that compliance with the Supreme Court’s con-
stitutional mandates required better-educated police offi cers and appropriated
funds to establish programs for their higher education. Discerning the need for
high-quality learning materials, John Klotter embarked on a career of police
scholarship that has spanned more than four decades. I was fortunate enough
to be John’s co-author since the fi rst edition of this book. After seven editions,
John decided to make a transition from working on this textbook to concentrat-
ing on keeping his other titles up-to-date. Michael Kanovitz came on board as
co-author at that time.
During the years since the Eleventh Edition, the Supreme Court has
announced a host of new decisions involving traffi c stops, pat-down searches,
searches incident to arrest, the exclusionary rule, interrogations, and affi rma-
tive action, among other topics. The Twelfth Edition contains six new cases.
Many are high-profi le; you will recognize them from having read about them
in the news.
We wish to thank the professors, instructors, and police departments who
have used our book over the years, especially for their suggestions, comments,
and support, and most of all for the opportunity they have given us to engage in
the intensive study of the Constitution as it applies to criminal justice personnel.
We hope you will be pleased with the Twelfth Edition and we welcome your
comments and questions. We can be reached at [email protected].
iii
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John C. Klotter
Justice Administration Legal Series
John C. Klotter, J.D. was a Professor Emeritus and Former Dean of the
School of Justice Administration, University of Louisville. Professor Klotter
began his association with Anderson Publishing in 1967, serving as Editorial
Director of its newly formed Police Publications Advisory Board. In 1968, he
co-authored, with Jacqueline Kanovitz, the fi rst edition of Constitutional Law
for Police, whose title was later changed to Constitutional Law. This book
was made part of a Justice Administration Legal Series for which Klotter also
authored Criminal Evidence in 1971 (now in its tenth edition) and later added
Criminal Law (now in its ninth edition). Legal Guide for Police: Constitutional
Issues, now in its eighth edition, was fi rst published in 1977.
In honor of Professor Klotter’s contribution to the fi eld of criminal justice
and his role with Anderson Publishing in serving this discipline, LexisNexis
is proud to rename the series the John C. Klotter Justice Administration Legal
Series.
About the Author
Jacqueline Kanovitz is an Emeritus Professor of the Brandeis School of
Law where she taught for thirty years and served as Associate Dean for Student
Affairs. She also taught at other law schools. She holds a J.D. (summa cum
laude) from the University of Louisville School of Law. She is the recipient of
numerous awards for teaching and writing excellence and has been a co-author
of this textbook since the fi rst edition in 1968.
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Table of Contents
PART I:
Chapter 1
History, Structure, and Content of the United States Constitution 1
Section
1.1 History of the United States Constitution 3
1.2 —Early Steps Toward National Unity 3
1.3 —Articles of Confederation 4
1.4 —Drafting the United States Constitution 4
1.5 —Ratifi cation by the States 5
1.6 Structure and Content of the Constitution 6
1.7 —Separation of the Powers of the National Government 7
1.8 —Division of Power between the National Government and the States 9
1.9 —Powers Granted to the Federal Government 10
1.10 —Powers the States Are Forbidden to Exercise 16
1.11 —Sovereign Powers Retained by the States 17
1.12 The Bill of Rights 19
1.13 —Applying the Bill of Rights to the States through the Fourteenth
Amendment 23
1.14 The Fourteenth Amendment as a Limitation on State Power 24
1.15 —Due Process of Law 25
1.16 —Equal Protection of the Laws 30
1.17 Adjudication of Constitutional Questions 35
1.18 Federal Remedies for Constitutional Abuses 37
1.19 Summary 38
Chapter 2
Freedom of Speech 41
Section
2.1 Historical Background 43
2.2 Overview of Constitutional Protection for Speech and Expressive
Conduct 44
2.3 Is Speech Involved? 47
2.4 First Amendment Distinction between a Speaker’s Message and the
Conduct Associated with Communicating It 48
2.5 Punishing Speech Because of the Message 50
2.6 —Obscenity and Child Pornography 52
vii
viii CONSTITUTIONAL LAW
2.7 —Fighting Words 56
2.8 —Threats 58
2.9 —Incitement to Immediate Illegal Action 59
2.10 —Hate Speech 64
2.11 —Crude and Vulgar Speech 66
2.12 —Commercial Speech 67
2.13 Restraints on Speech Based on Considerations Other Than the
Message 68
2.14 Free Speech Access to Government Property: Public Forums and
Nonpublic Forums 70
2.15 —Protecting the Community from Nuisances Linked to Speech 74
2.16 —Free Speech Access to Private Property 82
2.17 —Need for Precision in Regulating Speech 82
2.18 Summary 86
Chapter 3
Authority to Detain and Arrest; Use of Force 89
Section
3.1 Introduction 91
3.2 Overview of the Fourth Amendment 92
3.3 Crossing the Boundary of the Fourth Amendment 95
3.4 —“Free Zone” for Investigative Work 97
3.5 —“Seizure” Defi ned 97
3.6 —Fourth Amendment Grounds for a Lawful Seizure 102
3.7 Investigatory Stops 106
3.8 —Reasonable Suspicion 110
3.9 —Scope and Duration of Investigatory Stops 119
3.10 Traffi c and Vehicle Stops 127
3.11 —Pretextual Traffi c Stops 129
3.12 Requirements for a Constitutional Arrest 139
3.13 —Probable Cause 144
3.14 —Requirements for a Valid Arrest Warrant 146
3.15 —Arrests Inside a Private Residence 152
3.16 Use of Force in Making an Arrest or Other Seizure 157
3.17 State Arrest Laws 161
3.18 —Territorial Limits on a Police Offi cer’s Arrest Authority 164
3.19 Summary and Practical Suggestions 166
Chapter 4
Search and Seizure 169
Section
4.1 Overview of the Law of Search and Seizure 171
4.2 —Defi nition of a Search 176
4.3 —Sources of Search Authority 184
4.4 Seizures Under the Fourth Amendment 193
4.5 —The Fourth Amendment Search Warrant 205
TABLE OF CONTENTS ix
4.6 Searches Involving People and Personal Items 210
4.7 —The Terry Search Revisited 212
4.8 —Search Following a Custodial Arrest 215
4.9 Vehicle Searches 221
4.10 —Search of Vehicles Pursuant to a Detention or Arrest 224
4.11 —Search of Vehicles Based on Probable Cause (“Automobile
Exception”) 230
4.12 —Inventory Searches of Impounded Vehicles 234
4.13 Search of Protected Premises 236
4.14 —Premises Protected by the Fourth Amendment 238
4.15 —Entry and Search of Premises Under a Warrant 242
4.16 —Entry and Search of Premises without a Warrant 248
4.17 The Exclusionary Rule 254
4.18 Summary and Practical Suggestions 261
Chapter 5
Laws Governing Police Surveillance 263
Section
5.1 Introduction to the Laws Governing Police Surveillance 265
5.2 Fourth Amendment Foundation of Police Surveillance Law:
The Katz Standard 266
5.3 Application of the Katz Standard to Conventional Surveillance 269
5.4 Application of the Katz Standard to Technologically Assisted
Surveillance: An Overview 273
5.5 —Electronic Tracking 278
5.6 —Video Surveillance 284
5.7 —Detection Devices 288
5.8 The Wiretap Act 293
5.9 —Scope of the Wiretap Act 295
5.10 —Procedural Requirements for Intercepting Protected
Communications 298
5.11 Communication Surveillance Not Regulated by the Wiretap Act 304
5.12 —Listening with the Unaided Ear 305
5.13 —Interception of an Oral Communication Where the Target Lacks a
Reasonable Expectation of Freedom from Interception 306
5.14 —Interception Conducted with the Consent of a Party 308
5.15 —E-mail, Voice Mail, and Text Messages 310
5.16 —Pen Registers and Trap-and-Trace Devices 313
5.17 Foreign Intelligence Surveillance Act 314
5.18 Summary and Practical Suggestions 317
Chapter 6
Interrogations and Confessions 321
Section
6.1 Introduction 323
6.2 The Free and Voluntary Rule 327