Constitutional Law Articles Basic Constitutional Rights
Basic Constitutional Rights

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)

The Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

In a recent United States Supreme Court decision, the Court stated, "The Sixth Amendment, applied to the States through the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defense.  The core of this right has historically been, and remains today,  the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial. citing Michigan v Harvey, 494 U S  344, 348; 110 S Ct  1176; 108 L Ed 2d 293 (1990). We have held, however, that the right extends to having counsel present at various pretrial “critical” interactions between the defendant and the State,  including the deliberate elicitation by law enforcement officers (and their agents) of statements pertaining to the charge". citing Massiah v United States, 377 U S 201, 206; 84 S Ct 1199; 12 L Ed 2d 246 (1964). Kansas v Ventris, 556 U S 586; 129 S Ct 1841; 173 L Ed 2d 801, (2009)

The Fifth Amendment states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

In a recent United States Supreme Court decision, the Court stated, "In the Fifth Amendment context, we have created prophylactic rules designed to safeguard the core constitutional right protected by the Self–Incrimination Clause.  Among these rules is an evidentiary privilege that protects witnesses from being forced to give incriminating testimony, even in noncriminal cases, unless that testimony has been immunized from use and derivative use in a future criminal proceeding before it is compelled.  By allowing a witness to insist on an immunity agreement before being compelled to give incriminating testimony in a noncriminal case, the privilege preserves the core Fifth Amendment right from invasion by the use of that compelled testimony in a subsequent criminal case.  Because the failure to assert the privilege will often forfeit the right to exclude the evidence in a subsequent “criminal case", it is necessary to allow assertion of the privilege prior to the commencement of a “criminal case” to safeguard the core Fifth Amendment trial right.  If the privilege could not be asserted in such situations, testimony given in those judicial proceedings would be deemed voluntary, hence, insistence on a prior grant of immunity is essential to memorialize the fact that the testimony had indeed been compelled and therefore protected from use against the speaker in any “criminal case.” Chavez v Martinez, 538 U S 760; 123 S Ct 1994; 155 L Ed 2d 984, (2003)

Basic Constitutional Rights in Court

Before the court accepts a defendant’s guilty plea, the court must advise the defendant of the rights the defendant will waive as a result of pleading guilty. According to MCR 6.610(E)(3)(b), the court must inform the defendant that if the plea is accepted the defendant will not have a trial of any kind and that the defendant gives up the following rights that the defendant would have at trial:

  • the right to have witnesses called for the defendant’s defense at trial,
  • the right to cross‐examine all witnesses called against the defendant,
  • the right to testify or to remain silent without an inference being drawn from said silence,
  • the presumption of innocence and the requirement that the defendant’s guilt be proven beyond a reasonable doubt.
  • Right to a trial by jury. A defendant has a constitutional right to be tried by a jury in misdemeanor cases even when conviction would not result in imprisonment. Const 1963, art 1, § 20; People v Antkoviak, 242 Mich App 424, 463 (2000).

In Antkoviak, the defendant was charged with violating MCL 436.1703 (minor in possession) and was denied a jury trial because conviction would not result in incarceration. The Court of Appeals concluded that Michigan’s constitution guaranteed a trial by jury to any defendant accused of a criminal offense. The Court explained that although MCL 436.1703 proscribes conduct classified as a “petty offense,” the conduct prohibited is clearly classified by statute as a “crime” for which a defendant has the right to a trial by jury. MCL 750.5; Antkoviak, 242 Mich App at 471, 481.

if the ‘alert’ of a drug‐detection 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.

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 follow‐up 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). 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 ‘multiple‐step 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 478‐480.

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 693‐696. 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)

In Gagnon, 411 US at 782, 782 n 3, 786‐787, 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 484‐489, 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 487‐488; 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)