Constitutional Law Blog
Battle Creek - Constitutional Law Blog

The United States Supreme Court is the most watched and researched court in the country, if not the world. Its opinions are available in many formats, and many primary and secondary sources are available for research into the Court's decisions and the Court itself. In fact, the Court is so important that under Bluebook Rule 8, it is the only court where a capital "C" must be used any time the Court is mentioned.

Fourth Amendment:

Posted December 3, 2018

The Fourth Amendment states, "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."

In a recent United States Supreme Court decision, the Court stated, "The Fourth Amendment permits brief investigative stops—such as the traffic stop in this case—when a law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity. The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability. The standard takes into account “the totality of the circumstances—the whole picture. Although a mere “ ‘hunch’ ” does not create reasonable suspicion, citing Terry v Ohio, 392 U.S. 1, 21–22, 88 S Ct 1868, 20 L Ed 2d 889 (1968)., the level of suspicion the standard requires is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less” than is necessary for probable cause"

Navarette v California, 134 S Ct 1683; 188 L Ed 2d 680, (2014)


Is the Warrant Constitutional?

Posted November 6, 2018

People v. Keller, 479 Mich. 467, 477; 739 NW2d 505 (2007).

To determine whether a warrant is constitutional in its scope, a court must determine whether the search warrant is supported by valid portions of the affidavit on which the warrant is based. To properly evaluate the defendant’s claim that the warrant was unconstitutional because it was overbroad, the Keller Court relied on federal case law10 involving the severability of invalid portions from an affidavit to determine whether the remaining valid portions of the affidavit were sufficient to support the warrant’s issuance. Id. at 478 n 30.

According to the Keller Court: There is a ‘multiplestep analysis to determine whether severability is applicable.’ United States v Sells, 463 F3d 1148, 1151 (CA 10, 2006). First the Court must divide the warrant into categories.

Then, the Court must evaluate the constitutionality of each category. If only some categories are constitutional, the Court must determine if the valid categories are distinguishable from the invalid ones and whether the valid categories make up the great part of the warrant.’ Sells, 463 F3d at 1151. Here, the warrant authorizes the seizure of three categories of evidence:

  • marijuana;
  • distribution evidence, such as currency and packaging paraphernalia; and
  • possession evidence, such as proof of residency.

Of these three categories, the only one that is arguably invalid is the distribution evidence. If it were invalid, that category would be severable from the others. While all three categories are related to marijuana crimes, the distribution evidence relates to a distinct crime. Furthermore, when determining whether a valid portion constitutes the greater part of a warrant, ‘merely counting parts, without any evaluation of the practical effect of those parts, is an improperly “hypertechnical” interpretation of the search authorized by the warrant.

Instead, a court should ‘evaluate the relative scope and invasiveness of the valid and invalid parts of the warrant.’ Sells, 463 F3d at 1160. In this case, the authorized search for marijuana permitted police officers to search the entire house and to investigate containers in which marijuana might be found. Hence, the scope of the search authorized by the valid portion of the search warrant was extremely broad and allowed police officers to search in almost every place which the authorization to search for distribution evidence permitted. For this reason, the valid portion of the warrant, in our judgment, formed the greater part of the search warrant. Therefore, even if the warrant is overbroad, the distribution category is severable. Keller, 479 Mich at 478480.

Presumption of Prejudice:

Posted October 16, 2018

There is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt. United States v Cronic, 466 US 648, 659 n 26 (1984), citing Strickland, 466 US at 693696. However, in Cronic, 466 US at 658 660, the United States Supreme Court identified three rare situations involving circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified and in which prejudice is therefore presumed:

  • the complete denial of counsel, such as where the accused is denied counsel at a critical stage of the proceedings; where counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing; and
  • where counsel is called upon to render assistance under circumstances where even competent counsel very likely could where defense counsel was appointed to represent defendants in a capital case on the day the trial was scheduled to start.

A structural error does not automatically satisfy the second Strickland prong; rather, . . . Strickland, 466 US at 692, and . . .Cronic, 466 US at 659 n 25, articulated only a narrow class of situations in which prejudice is presumed for ineffective assistance purposes: when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding or when counsel is burdened by an actual conflict of interest. An ineffective assistance of counsel claim premised on either counsel’s waiver of or failure to object to the Sixth Amendment right to a public trial requires a showing of actual prejudice before the defendant is entitled to relief.

A presumption of prejudice exists when a defendant’s former defense counsel joins the prosecutor’s office that is pursuing the case against the defendant. Such a presumption may be overcome, however, if the prosecutor shows that the attorney who had a conflict of interest was properly ‘screened from any participation in the matter.

United States v Cronic, 466 U S 648; 104 S Ct 2039; 80 L Ed 2d 657, (1984)