Constitutional Law Blog
Paw Paw - 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.

Minimum Due Process Requirements for Revocation of Probation:

Posted December 2, 2018

In Gagnon, 411 US at 782, 782 n 3, 786787, the United States Supreme Court adopted, for purposes of the revocation of probation, the minimum requirements of due process that were set out in Morrissey, 408 US at 484489, for the constitutionally indistinguishable revocation of parole. Under this constitutional framework, there are two important stages:

  • the arrest and detention of the probationer for a violation of probation, and
  • the formal revocation of probation.

Preliminary Hearing: After a probationer is arrested for an alleged probation violation, he or she is entitled to an inquiry. . . in the nature of a preliminary hearing to determine whether there is probable cause or reasonable ground to believe that the arrested probationer has committed acts that would constitute a violation of probation conditions.

Final Revocation Hearing: If it is desired by the [probationer], prior to the final decision on revocation and within a reasonable time after he or she is taken into custody, the probationer is entitled to a hearing leading to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation.” Morrissey, 408 US at 487488; see Gagnon, 411 US at 786.

Gagnon v. Scarpelli, 411 U S 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973)

Morrissey v. Brewer, 408 U S 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972)


Fourth Amendment:

Posted November 21, 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)



Posted October 3, 2018

To determine if the ‘alert’ of a drugdetection dog during a traffic stop provides probable cause to search a vehicle, the court should allow the parties to make their best case, consistent with the usual rules of criminal procedure, . . . and . . . should then evaluate the proffered evidence to decide what all the circumstances demonstrate. Florida v. Harris, 568 U.S. ––––, 133 S.Ct. 1050, 1053–1054, 1056–1057, 185 L.Ed.2d 61 (2013).

If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.” Id. at ___.4 “If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence.” Id. at ___. “The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” Id. at ___. “A sniff is up to snuff when it meets that test.” Id. at ___. An initial traffic stop occasioned by a defendant’s traffic violation is based on probable cause, and is therefore reasonable. People v Williams (John Lavell), 472 Mich 308, 314 (2005). “A traffic stop is reasonable as long as the driver is detained only for the purpose of allowing an officer to ask reasonable questions concerning the violation of law and its context for a reasonable period.” Id. at 315. When a traffic stop reveals a new set of circumstances, an officer is justified in extending the detention long enough to resolve the suspicion raised.

There is no Fourth Amendment violation where an officer asks reasonable questions to ascertain additional information about the underlying offense and the circumstances leading to its commission. Id. at 316. “Implicit in the authority to ask these questions is the authority to ask followup questions when the initial answers given are suspicious.” Id. When a defendant then voluntarily consents to a search of his or her vehicle, no Fourth Amendment violation occurs and no inquiry is needed as to whether the officer effecting the stop “had an independent, reasonable, and articulable suspicion that defendant was involved with narcotics.” Id. at 318. The following rules are applicable with respect to stopping,searching, and seizing motor vehicles and their contents:

  • Reasonableness is the test that is to be applied for both stopping and searching moving motor vehicles;
  • Reasonableness is to be determined from the facts and circumstances of each case;
  • Fewer foundation facts are necessary to support a finding of reasonableness when a moving vehicle,rather than a house, is involved;
  • A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search are conducted by the police. People v Whalen, 390 Mich 672, 682 (1973). United States v Arvizu, 534 US 266, 273 (2002) (Fourth Amendment protections are satisfied if the police action is supported by reasonable suspicion to believe that criminal activity may be afoot).