CRJ325 - ASSIGNMENT ONE - PROCEDURAL LAW AND THE BILL OF RIGHTS

PROCEDURAL LAW AND THE BILL OF RIGHTS
ASSIGNMENT 1

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Procedural Law and the Bill of Rights
Strayer University
Felicia McCaw
Professor Christopher J. Abreau
CRJ325
Online Spring 2017
April 27, 2017

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As with the acts of right and wrong comes the necessary action of a culmination of regulation, rules and laws to govern the conduct of man in a civilized world. Establishment of law and regularity causes a structural and consistent dispensing of the right to order with all its peculiarities entailed. Because of this the right to order as well as laws was imaged in this country by adoption of the British Magna Carta of 1215 AD to assist in the structuring of governing policy for the United States.
This document signaled a turning point in history that lifted the common man from the wells and bellows of the street and made him and her a free person with the right to liberty, freedom and right. Striking a bell for freedom and true right they obtained independence from a totality society and became a society of equality, with freedom to protest. Evolving through the centuries it stood as a guiding point in the regulation of fairness in early Parliament and as a foundation for the powers which paralleled the dispensing of laws and the act of habeas corpus.

Active with richness of right and justice the Magna Carta helped the compilation of the American Constitution in 1787 and became the supreme law of the newly created republic of the United States due to its symbolism of liberty and freedom for the individual against a totalitarianism government. Acting as the mentor the British Magna Carta helped be a prolific exemplary model to the American Constitution and Bill of Rights that stand for the protection of every individual in the United States with retainership of authority of the federal government to be primary over all states but with provisional laws to actively govern individual states.

Therefore, the Bill of Rights as the ratified addition to the United States Constitution grants and guarantees personal freedom and rights, exact limitations on governmental power in

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judicial and other proceedings and explicit declarations that state all powers not specifically dedicated to Congress by the United States Constitution are reserves for the states or people.
Consequently, because the Bill of Rights is a structuralized itinerary to stand for each state to actively protect the rights of each citizen it parallels to procedural law and substantive law and its purpose to regulate fairness and rules in the court room and actual determinants in each civil, lawsuit, criminal or administrative proceedings with testing of validity of claims and defenses.

As such the procedural law and substantive law differs in the aspect that procedural is relative to the process that a case will go through whereas substantive is concerned with the factual nature of the case, crime and substance of the matter. Therefore, based upon this the two steps of the criminal justice process involve the step from arrest and imprisonment are protected by the Fourth Amendment which governs and protects individuals from undue harassment, security in person, house, papers and effects against unreasonable search and seizure which shall not be violated unless there is probable cause to issue warrant to describe place, person or thing to be seized.

In order for an arrest to be facilitated which is described as a seizure of a person the restrictions relating to the Fourth Amendment has to be adhered to in order to search, seize and arrest and therefore prosecute and successfully imprison. Therefore, probable cause has to be evident in order to arrest, with or without a warrant, and it is not allowable unless it is evident.
Further it also states that a prudent man is actively allowed to arrest if facts exist and are known to the officer that shows an act of criminality has ensued or is presently ensuing. Therefore, with evidential finds that have been legally garnered it becomes the totality in the

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process that causes an acceptance and supportive to the prosecution level and then consequently the sentencing and lastly the imprisonment.

In relation to probable cause is the concept of reasonable suspicion. Probable cause is explained as a fair probability that a search will reveal evidence that correspond to an active crime that has ensued or is progressively ongoing. Whereas reasonable suspicion pertains to the right of a police officer to detain a perk (suspicious party) to investigate and check by detain and frisk for possible weapons. It also must adhere to certain requirements, e.g., description of a suspect, suspicious activity after sighting the police, or by being a suspect in a high crime area who runs after seeing the police. Both are based on suspicious activity and accord the police the right to inquiry, investigate and proceed with legal requirements and restrictions. Therefore, with the knowledge of the Fourth Amendment as a prevailing right this allows the suspect certain protection under the law as well as the policeman.

Probable cause is usually based on reasonable suspicion, facts and circumstances which are supportive to an act of arrest, prosecution and imprisonment. Whereas reasonable suspicion is not based on facts but may be due to visionary sighting, tips or relayal of an APB and it does not necessarily lead to an arrest but allows inquiry, investigation, detain and frisk which may turn up an evidential find or not.

Consequently, the exclusionary rule comes into play to either exclude evidence that has been obtained in violation of a perk’s Fourth Amendment rights. Therefore a search that is deemed unreasonable will cause the evidence obtained from the search to be excluded from the trial. As such with the law as it deals with evidence, the court has at its disposal and active right of discretion to exclude evidence that is technically admissible but creates a prejudicial effect out

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of proportion to its evidential value. Thus the rule as it pertains to question of admissibility of certain statements, particularly admissions and confessions. Therefore, the “fruit of the poisonous tree” doctrine exists to exclude evidence that is obtained through a constitutional violation.

Two examples in which the exclusionary rule may not apply are the independent-source doctrine and the inevitable-discovery doctrine and possibly the attenuation doctrine. The independent-source doctrine provides an exclusion from the exclusionary rule because it allows evidence to be admissible if the police can prove it was obtained from an independent source that was not connected with a illegal search or seizure. Next, the inevitable-discovery doctrine provides that evidence is admissible if the police can prove that they would have inevitably discovered the evidence anyway by lawful means. Lastly, the attenuation doctrine allows the admission of some evidence even though it was obtained as a result of illegal detention.

The case of Tennessee v. Garner (Edward), et al, 471 U.S. 1 (1985), is a case that identifies a use of deadly force against a fleeing individual (Garner) who was caught leaving the scene of a burglary wherein he stopped at a 6 foot fence which allowed Policeman Hymon (Elton) to see Garner’s face and hands which reflected no weapon. After ordering Garner to halt, Garner proceeded to climb the fence at which time Hymon shot him with the bullet striking him in the head. Garner died shortly thereafter at the age of 15 years at the hospital.

The actions of Hymon were based upon Tennessee State Statute and official Memphis Police Department policy which authorizes deadly force against a fleeing suspect. The statute

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(40-7-108) provides “if, after notice of the intention to arrest the defendant, he either flees or forcibly resist, the officer may use all the necessary means to effect the arrest.”

As with all types of gauging relating to police duty and actions the need for determination of the level of force has to be evaluated quickly. In relation to this scenario a warning shot in the air may have resulted in the desired act of ceasing to flee. If Hymon had time to ascertain that the suspect was unarmed and young, the first thought is to effect an arrest not kill, slow the suspect by pinpointing a neutral location to effect a non-serious injury.

Because of the level of seriousness of this case and the deadly outcome from the interpretation of the Tennessee State Statute (40-7-108) Garner’s father (Cleamtee) brought suit in the United States District Court for the Western District of Tennessee under the Civil Right Act of 1871, 42 U.S.C. § 1983, naming the City of Memphis, its mayor, the Memphis Police Department, its director and Officer Hymon as defendants. The District Court upheld the statute and judged Hymon’s actions to be constitutional.

Because of Garner’s father continued disagreement with the outcome in the District Court the cases was appealed to the United States Court of Appeals for the Sixth Circuit by certiorari whereby the decision was reversed. The Court of Appeals stance on the manner held that the killing of a fleeing suspect falls under the category of “seizure” and for the purposes of the Fourth Amendment and the statute is only constitutional when the act of seizure is reasonable. Therefore, the court found that based on facts presented in this case, the Tennessee Statute failed to properly limit the use of deadly force by reference to the seriousness of the felony.

As to my opinion, a felony cannot be claimed unless processed through the legal system. Even though the commencement of the act reflects in conclusive sight a felonious crime is

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ensuing an arrest must follow. Therefore, the act of an officer using deadly force must effectively prove that his life was in danger and that his act needed the gauging and utilizing of deadly force. Further that the common law deals with an active state of being a felon and not a felonious act.

In conclusion, the protective rights of the Fourth Amendment allows a standing for the individual and populace to be protected from a statute deemed unreasonable, intimidating and frightening in the extreme. The causal effect of judging a call as to its level of low severity and ranging to a level of high severity allows the balance and effective judgment to adhere to the Bill of Rights, protective stance of the people and lastly the correct detail and adhering to procedural law, courts, regulations and rules.



References

Tennessee v. Garner. (2017, April 12). Retrieved April 27, 2017, from https://en.wikipedia.org/wiki/Tennessee_v._Garner

Searches and Seizures: The Limitations of the Police. (n.d.). Retrieved April 27, 2017, from http://criminal.findlaw.com/criminal-rights/searches-and-seizures-the-limitations-of-the-police.html

Warrantless Searches. (n.d.). Retrieved April 27, 2017, from http://legal-dictionary.thefreedictionary.com/Warrantless Searches

Police Stops: What to Do If You Are Pulled Over. (n.d.). Retrieved April 27, 2017, from http://www.nolo.com/legal-encyclopedia/police-stops-when-pulled-over-30186.html

Raphael, A., & Yoshimura, D. (2016). Should Evidence Found During a Search Incident to Arrest Be Suppressed if the Arrest Was Based on a Valid Warrant Discovered During an Illegal Detention? Preview of United States Supreme Court Cases, 43(5), 156-160.

Exclusionary rule. (2017, March 23). Retrieved April 27, 2017, from https://en.wikipedia.org/wiki/Exclusionary_rule

Arrest. (n.d.). Retrieved April 27, 2017, from http://criminal.findlaw.com/criminal-procedure/arrest.html

Chronology: The Arrest Process. (n.d.). Retrieved April 27, 2017, from http://criminal.findlaw.com/criminal-procedure/chronology-the-arrest-process.html

Arrest, Jail, and Court Process. (2012, April 13). Retrieved April 27, 2017, from https://supportcece.wordpress.com/legal-info/arrest-jail-court-process/

Busby, J. C. (2009, September 17). Probable Cause. Retrieved April 27, 2017, from https://www.law.cornell.edu/wex/probable_cause

What is reasonable suspicion? (n.d.). Retrieved April 27, 2017, from https://www.flexyourrights.org/faqs/what-is-reasonable-suspicion/

Exclusionary rule. (n.d.). Retrieved April 27, 2017, from http://legal-dictionary.thefreedictionary.com/Exclusionary Rule

Definitions Of Probable Cause Vs. Reasonable Suspicion. (n.d.). Retrieved April 27, 2017, from http://thelawdictionary.org/article/definitions-of-probable-cause-vs-reasonable-suspicion/

A. (2015, March 03). Home. Retrieved April 27, 2017, from http://www.differencebetween.com/difference-between-substantive-and-vs-procedural-law/

United States Bill of Rights. (2017, April 24). Retrieved April 27, 2017, from https://en.wikipedia.org/wiki/United_States_Bill_of_Rights

Magna Carta. (2017, April 25). Retrieved April 27, 2017, from https://en.wikipedia.org/wiki/Magna_Carta

Procedural law. (2017, March 21). Retrieved April 27, 2017, from https://en.wikipedia.org/wiki/Procedural_law

Tennessee v. Garner: Ruling of the U.S. Supreme Court on the Use of Deadly Force by Police (1986). Historic Documents of 1985.

Walter, A. (2017). Police Brutality: An Overview. Points Of View,

Blume, John H., "Deadly Force in Memphis: Tennessee v. Garner" (1984).Cornell Law Faculty Publications.Paper 273. http://scholarship.law.cornell.edu/facpub/273

References
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WHEN IS POLICE VIOLENCE JUSTIFIED? (n.d.). Retrieved April 27, 2017, from http://docplayer.net/4904373-When-is-police-violence-justified.html
Canales, J. L. (n.d.). Use of Force Truro Police. Retrieved April 27, 2017, from https://www.scribd.com/document/214685823/Use-of-Force-Truro-Police




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