Simply A Night Owl

I originally wrote this as a research assignment while I was attending the Idaho Post Academy in 2001.   I was looking back at this the other day and figured that this would be a good entry considering that one of the questions that I raised in the end was made out to be right.

The Bill of Rights of the United States Constitution was the direct result of a dispute over the ratification of the document in which opponents of the Constitution were of the opinion that the document as written did not sufficiently protect protect basic principles of human liberty.   In a word, their purpose was to protect the people from the government by limiting governmental power.   No longer would a citizen of the United States, or for that matter non-citizen residents or visitors, have to live with the fear of government infringement into their lives without due process.  At the time of its conception, the Bill of Rights struck a required balance between operation of the government and living under that government.

The Bill of Rights plays a vital role in American law so it was only a matter of time before loopholes were discovered and amplified.  This manipulation of the original intent was not only perpetrated by citizen’s (read as slick lawyer types), but by our own government as well.  For every questionable manipulation of the Bill of Rights, there has been case law established to either support or condemn its use.   One does not have to look hard to find such case law. It is found in the United States Supreme Court, the Circuit Courts and in the Supreme Courts of each individual state.  Violations of civil liberties are constantly being decided in the courts; the result of which becomes pertinent case law.  It is these decisions which determine how the government operates.

I want to show you some of the more commonly known cases that have become case law and determine how the government operates with respect to the rights of the citizens. Of course these are going to emphasize police practice.

1. Terry v. Ohio ~ In this decision, the police are allowed to perform a search of the outer clothing of a person if there is reasonable suspicion that the person is armed.  The suspicion must be based on reasonable and articulable facts and not just a hunch.
2. Katz v. United States ~ In this decision, the U.S. Supreme Court held that a recording made by the FBI of a person using a phone booth was not a legal search under the 4th Amendment.   The person using the phone had a “reasonable expectation of privacy.”
3. Illinois v. Gates ~ In this decision, the U.S. Supreme Court overturned a lower court decision with respect to probable cause and held that information provided by an anonymous informant is valid if corroborated by suspect action as witnessed by the police.   This decision made the standard for probable cause “Totality of Circumstances.”
4. Mapp v. Ohio ~ This decision in which evidence of a crime was obtained as a result of an illegal search was the gateway to application of the exclusionary rule at the State level.
5. Miranda v. Arizona ~ Suspects must be advised of their right to counsel and the right against self-incrimination prior to questioning.

I can’t even count the number of cases which have established new case law by piggybacking off of the few that I have listed.  I can only reflect the comments of former Supreme Court Justice Robert H. Jackson who said, “This court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.”

In today’s society, the government has many new challenges to face; one of the more larger being terrorism. In this new challenge lies a new dilemma.  The Bill of Rights applies equally to all persons subject to United States jurisdiction.  Armed with that knowledge ask yourself this; is the capture and prosecution of terrorists and the prevention of terrorism worth the minimization of or the all out sacrifice of the civil liberties granted and guaranteed by the United States Constitution?

Part 2 coming soon…