Missouri Bar Citizenship Education
The Missouri Bar Constitution Day Program

A Joint Project of The Missouri Bar, the Missouri School Boards Association and Higher Education Channel

September 17, 2007

STUDY GUIDE FOR THE INTERNET CASTS

ATTENTION TO CONSTITUTION DAY PARTICIPANTS!  WE NEED TO SEND YOU A CD OF THE CLIPS THAT WILL BE USED DURING THE CONSTITUTION DAY PROGRAM AND ARE PART OF THIS STUDY GUIDE.  THEY WILL BE FUN AND USEFUL FOR PREPARING STUDENTS FOR THE SEPTEMBER 17 INTERNET PROGRAM.  E-mail Millie Aulbur at milliea@mobar.org or call Becky Libbert at 573 638-2252.

Introduction

The Missouri Bar, the Missouri School Boards Association and Higher Education Channel of St. Louis are proud to host The Missouri Bar Constitution Day Program 2007.  This year the interactive Internet programs will explore how the Constitution makes sure that government officials follow certain rules when they suspect someone of committing a crime.  The Framers of the Constitution created a limited government, which means the government has only the powers that the people give it.  The 4th and 5th Amendments to the Constitution limits what the government can do in investigating a crime.  The student participants will be discussing with a panel of lawyers the protections of the 4th and 5th Amendments to the Constitution. 

Purpose of the study guide

Last year, The Missouri Bar surveyed high school students in several school districts and found that among the top five programs that they watched were CSI and 24.  During the program, there will be short clips (a total of less than one minute for all of the clips) from these programs that have relevance to the 4th and 5th Amendments.   Prior to the program, teachers and students will have the opportunity to preview the clips and think about what they have to do with the Constitution.   This study guide will give some background on the 4th and 5th Amendments and will help students come up with questions for the panel.

If you have questions, please feel free to e-mail Millie Aulbur, Director of Law-Related Education, The Missouri Bar, at milliea@mobar.org. 





How Does the 4th and 5th Amendment Protect Us?
Constitution Day Considerations

Objectives:
• To introduce students to the basic protections included in the 4th and 5th Amendments to the Constitution as they pertain to law enforcement work.
• To help students relate to what they see on some of their favorite television programs to how evidence may really be collected and used at a trial.
• To stimulate discussion that will lead to questions for the panelists for The Missouri Bar Constitution Day Program.

Introduction: 

There are hundreds of court cases dealing with the 4th and 5th Amendments.  The Constitution Day program will focus on the most commonly discussed issues that arise with both amendments.  At the end of this study guide will be suggestions for further study and enrichment on these topics.  Throughout the lesson plan are topics for classroom discussion and issues to possibly raise with the Constitution Day panel.

Fourth Amendment

Background and instructional suggestions for the 4th Amendment:

1. Look at the words in the 4th Amendment. (See Handout #1.) 

Classroom discussion:
• Why did the Framers who wrote the Constitution want a right like this included?  (The colonists had experienced unannounced searches by the British and the right to be free from unreasonable searches was a right English citizens enjoyed and the colonists felt should have been accorded to them.)

• Over the last two hundred years, the Fourth Amendment to the U.S. Constitution has come to mean a protection of personal privacy as well as every citizen's right to be free from unreasonable government intrusion into their persons, homes, businesses, and property.  How important is this right to you?

2. Two Fourth Amendment issues that always come up are:   did a search really occur and was the search reasonable.

• What is a search?  (Put up overhead of kinds of searches or distribute copies.) 

• A reasonable search is one where:  a) there was probable cause to believe a crime had been committed and the thing, place or person to be searched has evidence of that crime;  b) that a warrant was obtained or that there is a really good reason a warrant could not be obtained.
• The right to be free of an unreasonable search also means that there is an expectation of privacy in the thing being searched. 

Classroom discussion:
• Brainstorm about where there is an expectation of privacy:  home, locker, car, purse, pockets and hotel room. 
• What is probable cause?  Someone’s word that a crime has been committed?  Actual evidence?


POSSIBLE QUESTION FOR THE CONSTITUITON DAY PANELISTS about privacy and probable cause: 
• Do I have a right of privacy at a friend’s house or in a friend’s car?
• What would you say about trash bags in front of my house? 
• What about thermal imaging? 
• Or what about e-mail communications and the contents of my cell phone?
• What is probable cause?
• Can you use confidential informants to assert that there is probable cause?

Background (cont.)

3. Is it ever permissible to do a search without a warrant?  This is an ever-evolving area of the 4th Amendment.  See Handout #3 on when a search can be done without having a warrant.

4. What happens when government officials obtain evidence and they do not get a search warrant?  Prior to 1961, the court would basically say that it was illegal but still allow the evidence.  In 1961, in a landmark case called Mapp. V. Ohio 367 U.S. 643 (1961), the Supreme Court created the exclusionary rule, which said that if evidence is gotten without a search warrant or without an exception to the warrant, it cannot be used as evidence at trial.  For example if the police go into a house and find 20 million dollars worth of cocaine but did not have a warrant, the cocaine most likely will not be able to be used as evidence at trial.


CLASSROOM DISCUSSION AND POSSIBLE QUESTIONS FOR THE CONSTITUTION DAY PANEL on warrantless searches and the exclusionary rule.:

• How do you feel about somebody who most likely committed a crime getting to go free because the police did not follow the 4th Amendment?
• How important is it to you that the police follow the Constitution when collecting evidence? 
• Is there a better way to make sure the 4th Amendment is followed than excluding the evidence at trial?
• What do they think the Framers of the Constitution would have thought about the rule excluding evidence?


Discussion and activities after seeing the clips on the 4th Amendment:

1. The following are questions that may arise after watching the clips:
• What exactly is a warrant?
• Who can get a warrant? 
• Who does an officer get a warrant from?
• What is needed to get a warrant? 
• In the clips, there was reference to “scope of a warrant.”  What does that mean and why is it important?
• In another clip, a CSI officer asks if they need to get a warrant or will the suspect “play nice.”  Do you think it is a sign that someone is guilty if they will not consent to a search or “play nice”?

2. Divide the class into prosecutors and defense attorneys for both the CSI clips and the 24 clips.
• Who makes it easier for the prosecution—the CSI team or the 24 team?
• Does Jack Bauer have a different kind of situation to deal with than CSI—he only has 24 hours to find the killer—does this mean he has “exigent circumstances”?

GENERAL POSSIBLE QUESTIONS FOR THE CONSTITUTION DAY PANEL:
• Clear up areas of confusion from the questions above i.e. who gives out warrants.
• Ask the panel to react to Jack Bauer’s actions in 24.
• Ask the panel to describe actual exigent circumstances they have had to defend at trial or 4th Amendment violations they have encountered.
• Ask the panel how they feel about letting a potentially guilty person go free if the police fail to follow the rules.

FIFTH AMENDMENT

Background and instructional suggestions for the 5th Amendment:
1. In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that whenever a person is taken into police custody, before being questioned he or she must be told of the Fifth Amendment right not to make any self-incriminating statements and that the person is entitled to due process.
Classroom discussion: 
• As a result of Miranda, anyone in police custody or being interrogated as a suspect must be told four things before being questioned.  What are they?
a. You have the right to remain silent.
b. Anything you say can and will be used against you in a court of law.
c. You have the right to an attorney.
d. If you cannot afford an attorney, one will be appointed for you.
• Have students look at the actual language of the Fifth Amendment and discuss how the Court decided the Miranda Rights, as outlined above, were required by the Fifth Amendment.

• Discuss with the students what happens if police fail to advise someone of his/her Miranda rights.  The exclusionary rule applies like it did with the 4th Amendment.  For example, when police officers question a suspect in custody without first giving the Miranda warning, any statement or confession made is presumed to be involuntary, and cannot be used against the suspect in any criminal case. Any evidence discovered as a result of that statement or confession will likely also be thrown out of the case.   An example:  Jack confesses to stealing a car and then takes the police to where he hid it.  The police questioned Jack without reading him his Miranda Rights.  Can the confession and stolen car be used as evidence against him? (No)

2. Important discussion point:  Have students look at the language of the 14th Amendment,  particularly the words “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  The 14th Amendment made all the protections in the Bill of Rights, which includes the 4th and 5th Amendments, apply to all local, state and federal government entities.  This is important in the current discussions about immigrants because these words in the 14th Amendment make it clear that anyone who is subject to our laws is also entitled to protections of our laws.  They are not just for citizens.

Discussion and activities after seeing the clips on the 5th Amendment:

1. Discussion questions:
• What does it mean to “invoke” your 5th Amendment rights?
• What are your rights if you are stopped by the police?  What information is okay to give them?
• Do you think invoking your rights means you are guilty of something?  Are there times when you hold back information from a teacher, principal or parent?
• Why does questioning of a suspect have to stop after someone asks for a lawyer?
• How do you feel about letting someone go free after she confesses to a crime but the prosecutor cannot use it because she was not read her Miranda Rights?
• Part of the 5th Amendment protection is that you do not have to testify against yourself at trial.  If you were on a jury and the defendant did not testify, what would you think?

2. Divide the class into prosecutors and defense attorneys.  For each of the scenarios below, have each side argue about whether the defendant’s Miranda Rights have been violated:

• A man was suspected of abducting and killing a little girl who was attending her brother’s high school wrestling match.  After he was arrested, he said he did not want to say anything without an attorney present.  He had to be transported across the state of Iowa.  The police did not question the suspect while transporting him across Iowa but the police officers talked to each other about how much it would mean for the girls’ family if her body could be found so they could give her a Christian burial.  The suspect told the officers where to find the body.  (The U.S. Supreme Court held that the officers’ conversation about a Christian burial constituted an interrogation in Brewer v. Williams, 430 U.S. 387 (1977))

• While he was being transported to police headquarters in a squad car, the murder suspect, who had been given the Miranda warnings and had asserted he wished to consult a lawyer before submitting to questioning, was not asked questions by the officers. However, the officers engaged in conversation among themselves, in which they indicated that a school for handicapped children was near the crime scene and that they hoped the weapon was found before a child discovered it and was injured. The defendant then took them to the weapon's hiding place. (Again, in Rhode Island v. Innis, 446 U.S. 291 (1980), the Court held that officers’ conversation constituted an interrogation.)
POSSIBLE QUESTIONS FOR THE CONSTITUTION DAY PANEL:

1. For the prosecutors on the panel, ask how they interact with police officers to make sure they follow Miranda.

2. For the defense attorney, ask what he advises clients to do during questioning or interrogation.

3. Ask the entire panel, what kind of real life experiences they have had with Miranda violations.

4. Are the 4th and 5th Amendment rights reserved to citizens or do they apply to anyone who the police are investigating or arresting?















Handout #1—Constitution Day 2007

THE FOURTH AMENDMENT
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 person or things to be seized.



Handout #2 Constitution Day 2007

KINDS OF SEARCHES AND SEIZURES

 AN INDIVIDUAL IS STOPPED FOR POLICE QUESTIONING WHILE WALKING DOWN THE STREET.

 AN INDIVIDUAL IS PULLED OVER FOR A MINOR TRAFFIC INFRACTION, AND THE POLICE OFFICER SEARCHES THE VEHICLE'S TRUNK.

 AN INDIVIDUAL IS ARRESTED.

 POLICE OFFICERS ENTER AN INDIVIDUAL'S HOUSE TO PLACE HIM OR HER UNDER ARREST.

 POLICE OFFICERS ENTER AN INDIVIDUAL'S APARTMENT TO SEARCH FOR EVIDENCE OF CRIME.

 POLICE OFFICERS TAKE AN INDIVIDUAL'S VEHICLE OR PERSONAL PROPERTY AND PLACE IT UNDER POLICE CONTROL.

 WIRE TAPS

 TAKING BLOOD

 TAKING URINE

 LOOKING THROUGH BINOCULARS AND TELESCOPES

 X-RAYS

 LOOKING THROUGH LOCKERS, POCKETS  AND PURSES

 DOG-SNIFFING

 COLLECTING HAIR SAMPLES



Handout #3—Constitution Day 2007

LEGAL WARRANTLESS SEARCHES
  SEARCHES AFTER AN ARREST

 CONSENT SEARCHES

 PLAIN VIEW

 STOP and FRISK

 HOT PURSUIT

 AUTOMOBILE

 INVENTORY

 BORDER and AIRPORT SEARCHES

 EXIGENT CIRCUMSTANCES




Handout #4 Constitution Day 2007

Fifth Amendment
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 offence 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.







EXTENSION AND ENRICHMENT ACTIVITIES

1. Discuss with the students how the protections in the 4th and 5th amendments are consistent with the Framers idea that government should be limited in its powers.

2. Study in depth some of the landmark 4th and 5th Amendment cases:

a. Mapp v. Ohio—go to www.landmarkcases.org.
b. Miranda v. Arizona—to www.landmarkcases.org .

3. Explore how students’ 4th Amendment rights in school settings appear to be somewhat different.   See attached handout on privacy issues for high school students. The holdings in the courts cases were as follows:
• Significance of  New Jersey v. T.L.O—Under the 4th Amendment, for a search to be reasonable, the government official doing the search must have probable cause to believe that a law has been broken. In this case, the Court held that, in a school, the probable cause need only be a belief that a school rule may have been violated. 
• Significance of  Vernonia v.Acton—The school district’s concerns about drug usage among its student athletes was sufficient probable cause for mandatory random drug testing to be considered a reasonable search.  The Court was careful to point out that the school district had identified a significant drug problem among the athletes and that the results of the mandatory drug testing would not be turned over to law enforcement officials. 

• The Court expanded its holding in Vernonia seven years later in the case of Board of Education of Independent School District No. 92 of Pottawatomie City v. Earls, 536 U.S. 822 (2002).  In that case, the school district policy for mandatory drug testing included everyone in extracurricular activities.  (The students who challenged the policy were in band and on the academic team.)  Unlike the Vernonia school district, the Pottawatomie School District had not articulated that there was a drug problem in the school.  Nevertheless, the Court held that the school’s drug testing policy did not violate the 4th Amendment, once again citing the school’s need to address its general concerns about teen drug usage and once again pointing out that the drug test results would not be shared with law enforcement officials.

4. There are lots of news stories about possible constitutional violations and steps being taken for national security.  The Bill of Rights Institute provides several hypotheticals for students to consider.  See Handout on National Security Issues and Privacy.










Handout #1—Privacy Issues for High School Students
Constitutional Privacy Issues and High School Students
Key Cases and Current Events
The theme in all cases dealing with high school students and various constitutional issues is the tension between protecting the students’ constitutional rights and the school being allowed to do what it needs to protect its students and to maintain an effective educational climate.  So for each case below, ask the question—does the school have a legitimate need to take the action it is taking?  Does it are should it outweigh a student’s right to privacy?


Case #1-- New Jersey v. T.L.O., 469 U.S. 325 (1985). 
Facts of the Case

On March 7, 1980, a teacher at Piscataway High School in New Jersey found two girls smoking in a restroom.  Since this was a violation of school rules, the teacher took the two students to the principal's office.  The assistant vice-principal questioned the two girls separately.  One student admitted that she had been smoking.  However, T.L.O. denied that she had been smoking in the restroom and claimed she did not smoke at all.  The assistant vice principal then asked to see T.L.O.'s purse.  When he opened the purse he found a pack of cigarettes and also noticed a package of rolling papers which the vice-principal knew were associated with marijuana use.  He then searched the purse more thoroughly and found a small quantity of marijuana, a pipe, several empty plastic bags, a substantial amount of money, a card that appeared to be a list of students who owed T.L.O. money, and two letters that implicated T.L.O. in the distribution and sale of marijuana, a crime under New Jersey law.  T.L.O. (initials used because defendant was a juvenile) won her case in the New Jersey courts and the school appealed to the Supreme Court of the United States.

Appellant’s (State of New Jersey) argument: The vice-principal's search of the purse was reasonable because a teacher had told the vice-principal that T.L.O. had been smoking.  Thus, the vice-principal had reasonable cause to suspect a school rule had been broken.  When the vice-principal was searching for the cigarettes, the drug-related evidence was in plain view.  Plain view is an exception to the warrant requirement of the 4th Amendment.
Respondent’s (T.L.O.) argument: The vice-principal had no probable cause to believe that T.L.O. had committed a crime when he searched her purse.  Possession of and use of cigarettes (at that time) were not crimes.   Belief that a school rule has been broken is not grounds for a warrantless search.   Furthermore, even if the vice-principal had the right to search T.L.O.'s purse for cigarettes, that the search should have ended when the cigarettes were found.

Which argument do you agree with?  If searching a purse is okay, what about lockers and desks?  Is using a drug-sniffing dog okay?


Case #2 VERNONIA SCHOOL DISTRICT v. ACTON, 515 U.S. 646 (1995).
Facts of the Case

Vernonia, Oregon, is a small community of about 3,000 people with a student population of 690 students.   In this small logging community, most of the students participate in school athletics and school athletic programs are a major focus of the community.  Between 1985 and 1989, the teachers and administrators of Vernonia School District became concerned about what they observed to be a dramatic increase in the use of illegal drugs among the students, many of them student athletes. The increase in drug use corresponded with an increase in student disciplinary problems.  Many student athletes openly bragged about using drugs.  

Prior to 1989, administrators instituted drug education programs and used drug-sniffing dogs to combat the escalating drug problem.  These measures did not work.  Thus, in 1989, the administration adopted a policy that required all students who participated in interscholastic athletics to take a drug test at the beginning of the athletic season and at random times throughout the season.  The urine of athletes was tested strictly for the presence of drugs.  The type of test used is considered 99.94% accurate.  The results were kept confidential and were strictly used by the school.  Those athletes who tested positive for drugs had to participate in a drug-counseling program for six weeks.  They also had to agree to weekly drug testing or face being suspended from the team for the current season and all following seasons.  If a student refused to be tested, the student was suspended from interscholastic athletics for the season.

After the policy went into effect, disciplinary complaints dropped by 50%.  Teachers saw a drop in the use of drugs among their students and saw approval for drug use also drop.

James Acton was in seventh grade during the 1991-1992 school year and wanted to play football.  However, he and his parents refused to sign the consent form for the drug testing.  In accordance with the school policy, he was suspended from interscholastic athletics.  The Actons brought a suit against the school in the federal district court, claiming that the school's policy violated James' Fourth Amendment right to be free from unreasonable searches and seizures.  They won the case in the federal district court and the school appealed to the Supreme Court of the United States.

Appellant’s (Vernonia School District) argument:
• Collecting a student athlete's urine is a "search" and, therefore, there is a Fourth Amendment issue as to whether the search is reasonable.  Reasonableness is judged in this case by balancing the intrusion of requiring a student athlete to provide a urine sample against the school's interest in curbing illegal drug use.

• School children require a greater degree of supervision than do adults.  The requirements that school children receive physical examinations and have vaccinations indicate that they have a lesser expectation of privacy than the general population.  Student athletes have an even lesser expectation of privacy because they undress in open locker rooms, are subject to preseason physical exams and rules regulating their conduct.

• The urine is tested only for drugs and only a very limited group know the results.  The results are not released to medical personnel or the law enforcement community.

• The importance of deterring illegal drug use by school children cannot be doubted.  Moreover, the policy of drug testing athletes is directed strictly to student athletes who are more susceptible to injuring themselves or others while using illegal drugs.
 
Respondent’s (James Acton) argument:
• The Fourth Amendment generally forbids searches of whole groups. There must be suspicion of the individual to justify the search.

• Students who are disruptive or act suspicious should be tested--this would not violate anyone's constitutional rights.

• By focusing on individual suspicion, the whole process is kept confidential and then "any distress arising from what turns out to be a false accusation can be minimized."

• "It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search."


























Handout on National Security Issues and Privacy.

Constitutional Privacy Issues and Current Events

Current Event #1—Phone Records and Privacy

Partially excerpted from the Bill of Rights Institute e-lessons:
The National Security Administration (part of the Executive Branch of the federal government) has collected the phone records for calls originating in the United States. The goal is to create a database of every call ever made within the borders of the United States. The NSA is sifting through the information to find patterns that may reveal potential terrorist activity. According to the White House, all activities conducted are lawful and no domestic conversations are being tapped into without a warrant.  The President states that Congress gave this authority to the administration when they authorized the use of military force by the White House after the September 11, 2001 terrorist attacks. His spokesperson has stated on numerous occasions that all surveillance activities are taking place lawfully.
For your consideration:
1. Is it a violation of the Fourth Amendment's protections for the government to collect and store phone records in a time of war even without any suspicion of specific wrongdoing? 
Proposed arguments by various groups—which do agree with and why?
No, it does not violate Fourth Amendment protections because...
• Surveillance that might be considered unreasonable during a time of peace, may be necessary and justified during wartime.
• The police often gather phone records for use in investigations.
Yes, it does violate Fourth Amendment protections because ...
• collecting and storing private phone records without a warrant based on probable cause violates a person's Fourth Amendment rights.
• the police gather phone records in investigations, but suspicion of guilt is involved. In this instance, information is collected and stored without any grounds for suspicion.
• this is not a power explicitly granted to the Executive Branch in a time of war.
2. Would the government have probable cause to place a wiretap on your phone based solely on your phone records?
Proposed arguments by various groups—which do you agree with and why?
Yes. The government must still ask for court approval when placing a wiretap so law enforcement agencies would have to demonstrate to the courts that your phone records indicated probable cause of criminal activity.
No. Many amendments, taken as a whole and incorporated into the states by the Fourteenth Amendment, allow for a right to privacy that precludes the government from placing a wiretap on your phone simply based on the phone numbers you call. The First Amendment's protections of speech, religion and assembly allows for freedom of association and conscience - even with suspected terrorists. The Third Amendment protects the people from government intrusion in their home. The Fourth Amendment protects "[t]he right of the people to be secure in their persons..." The Fifth Amendment protects citizens from unwilling self-incrimination, and the Ninth Amendment protects the natural rights of the people which are not listed in the Constitution.
3. Would you be willing to allow the government to read your emails or listen to your phone conversations if the government said such activities might prevent a future terrorist attack? Why or why not?

4. During the Virginia Convention on the ratification of the Constitution, James Madison made the following statement:  “Since the general civilization of mankind, I believe there are more instances of the abridgment of freedoms of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.”
Do you agree or disagree with this statement. Explain your answer.
Current Event  #2—Stadium and Subway Searches

Partially excerpted from the Bill of Rights Institute e-lessons:
Recent court cases in New York and Florida have brought the Fourth Amendment to the forefront. New York City subway riders are subject to a random search upon entering the subway system. Fans attending Tampa Bay Buccaneer football games (and any other National Football League game) are patted down. In both cases, lawsuits have been filed claiming that these searches are unconstitutional. Do these actions violate a person's right to be secure against unreasonable searches and seizures?   The reasons given for these searches are due to the terrorist attacks on September 11, 2001 and in London, England in the summer of 2005, these public places may be potential targets. The searches are an attempt to prevent a future attack and to make the public using these services feel safer.  The people suing in these cases claim that the searches are a violation of the Fourth Amendment "right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures." They believe that the conducted searches are not reasonable.
For your consideration:
1. Do you think the searches in New York and Florida are an effective deterrent to terrorists? Why or why not?
2. Do you believe the pat downs and subway searches are “unreasonable?” Why or why not?
3. Should recent terrorist attacks effect the interpretation of “unreasonable?” If so, why? If not, why?
4. Are the following situations constitutional?
 Concert-goers must walk past drug-sniffing dogs.
 Visitors to an amusement park must allow police to inspect their bags.
 Students walk through metal detectors to enter their school building.
 Airline passengers must remove their shoes and submit to a random search.

Current Event Scenario #3—Warrantless Wiretapping

Partially excerpted from the Bill of Rights Institute:
Newspaper reports revealed that the Bush Administration has been conducting secret, warrantless surveillance on individuals residing in the United States. The President says the wiretaps are legal, while members of Congress claim that they are unconstitutional. According to Attorney General Alberto Gonzales, that after the September 11, 2001 terrorist attacks, wiretaps on U. S. residents with links to al Qaeda became necessary to protect the nation from further harm.  Furthermore, the President states that Congress gave this authority to the administration when they authorized the use of military power to the White House after the September 11, 2001 terrorist attacks.   Some members of Congress argue that the warrantless wiretaps violate the people's constitutional right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." They also state that they never gave the President the authority to conduct warrantless surveillance.
For your consideration:
1. Are there any times when warrantless wiretaps might be necessary? Explain your answer.
2. Is warrantless surveillance reasonable in a time of war?
3. Would you be willing to allow the government to read your emails or listen to your phone conversations if it prevented a future terrorist attack? Why or why not?














Handout #4-- Privacy Issues for High School Students

Supreme Court of the United States’ Rulings in Key Cases

Case #1-- New Jersey v. T.L.O., 469 U.S. 325 (1985). 

The Supreme Court of the United States held that the Fourth Amendment's prohibition on unreasonable searches and seizures applies to searches conducted by public school officials, and is not limited to searches carried out by law enforcement officers. Nor are school officials exempt from the Amendment's dictates by virtue of the special nature of their authority over schoolchildren. In carrying out searches and other functions pursuant to disciplinary policies mandated by state statutes, school officials act as representatives of the State.

Schoolchildren have legitimate expectations of privacy. They may find it necessary to carry with them a variety of items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items by bringing them onto school grounds. But striking the balance between schoolchildren's legitimate expectations of privacy and the school's equally legitimate need to maintain an environment in which learning can take place requires some easing of the restrictions to which searches by public authorities are ordinarily subject. Thus, school officials need not obtain a warrant before searching a student who is under their authority. Moreover, school officials need not be held subject to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Under ordinary circumstances, the search of a student by a school official will be justified at its inception where there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.

Under the above standard, the search in this case was not unreasonable for Fourth Amendment purposes. First, the initial search for cigarettes was reasonable. The report to the Assistant Vice Principal that respondent had been smoking warranted a reasonable suspicion that she had cigarettes in her purse, and thus the search was justified despite the fact that the cigarettes, if found, would constitute "mere evidence" of a violation of the no-smoking rule. Second, the discovery of the rolling papers then gave rise to a reasonable suspicion that respondent was carrying marihuana as well as cigarettes in her purse, and this suspicion justified the further exploration that turned up more evidence of drug-related activities.


Case #2 VERNONIA SCHOOL DISTRICT v. ACTON, 515 U.S. 646 (1995).

The Court held as follows:

• Requiring a student to submit to a urine test is a search within the meaning of the Fourth Amendment.

• An individual's right to privacy must be balanced against the school's interest in curbing illegal during use among the student body.

• The state, as the schoolmaster of school-age children, may exercise greater supervision over school children than it can over adults.

• Students do not leave their constitutional rights at the school door; therefore, any search or seizure must be considered reasonable.

• School children have a lesser expectation of privacy than free adults in that they are required to have physical examination and vaccinations in order to attend school.

• Student athletes have an even lesser expectation of privacy in light of the fact that they often undress in open locker rooms.

• As to the balancing test, the privacy interests involved with urine testing are minimal compared to the school's interest in curbing the use of illegal drugs among the students.

• Student athletes have a greater potential to harm themselves and otherwise while using illegal drugs.

• In the Vernonia School District, the results of the drug test would be kept confidential and not turned over to the authorities.