The Law Of Selective Incorporation

Search and seizure is a vital and controversial part of criminal justice, from the streets to the police station to court. It is guided by the Fourth Amendment, which states that people have the right to be free from unreasonable search and seizure of their bodies, homes, papers, and possessions and that warrants describing what and where will be searched and/or seized are required to be able to search the above things (“Fourth Amendment,” n.d.). Interpretations of the Fourth Amendment by the U.S. Supreme Court and the establishment of case law by many state and federal courts have expanded upon the circumstances under which search and seizure is legal. Several doctrines and exceptions have also emerged from the Supreme Court and other case law that guide law enforcement officers on the job and aid lawyers in court.

The Exclusionary rule, as defined in our Criminal Justice Book: 7e, is the principle that illegally obtained evidence must be excluded from trial. If any evidence, that falls within the field of the exclusionary rule, is found that would otherwise not have been found by law enforcements, the rule applies to linked evidence found and all the evidence after. This after evidence is often referred as “fruit of the poisonous tree.” The exclusionary rule is also looked at in a way to block law enforcement officers from handling searches and/or seizures, a violation of the fourth amendment, possibly aiding to defendants whose rights have been violated.

Selective Incorporation is basically a concept of taking specific parts of the Bill of Right and apply them to the States and local government, on a case by case basis. And That was after the Civil War (1868), when the 14th amendment was past and it has in it two famous clauses which are the ‘due process clause” in which the states can’t be working by a different standard then the National Congress, and the equal protection clause which people have to be protected equally from the Congress and the States government.

Her attorney argued that she should never have been brought to trial because the material evidence resulted from an illegal, warrant less search. Because the search was unlawful, he maintained that the evidence was illegally obtained and must also be excluded. In its ruling, the Supreme Court of Ohio recognized that ?a reasonable argument? could be made that the conviction should be reversed ?because the ?methods? employed to obtain the evidence?were such as to offend a sense of justice.? But the court also stated that the materials were admissible evidence. The Court explained its ruling by differentiating between evidence that was peacefully seized from an inanimate object, such as a trunk, rather than forcibly seized from an individual. Based on this decision, Mapp's appeal was denied and her conviction was upheld.

In the book, selective incorporation is defined as the, “Process of applying some of the rights in the Bill of Rights to the states to the states through the due process clause of the Fourteenth Amendment (Losco 65).” In other words, selective incorporation is a doctrine that protects the rights, privileges and immunities of the citizens in the United States from state laws. It was created because of the complex debate that comes in the heart of the Constitution itself. A major issue since the beginning of the government was the relationship between the individual states and the national government, and was a heated debate at the Philadelphia convention which produced the Constitution. Additionally, as we learned earlier in history classes

Mapp v. Ohio was a historical case in which the United States Supreme Court declared that all evidence obtained in violation of the Fourth Amendment, could not be held against you in court ("Landmark Cases of the U.S. Supreme Court," 2015). The exclusionary rule and selective incorporation were applied to this case. The ?exclusionary rule? which prevents the government from using most evidence gathered in violation of the United States Constitution along with selective incorporation which is how the rights out lined in the Constitution apply to the states and the courts must acknowledge these rights. (The Definition of Selective Incorporation, 2015). This case was also significant due to the fact that the decision would open up the court to a number of difficult cases concerning how to apply the exclusionary rule.

It was not until after the Civil War that the Thirteenth, Fourteenth, and Fifteenth amendments were enacted and began protecting individuals against the states. The Fourteenth Amendment has been the principal means by which this protection has been accomplished. It reads, in part, “No State shall...deprive any person of life, liberty, or property without due process of law.” The Supreme Court had interpreted this guarantee of liberty to embrace the fundamental liberties in the Bill of Rights, meaning that the state governments must observe and protect them to the same extent as the federal government this is also known called incorporation. The amendments in the Bill of Rights are said to be incorporated against the states through the due process clause of the Fourteenth Amendment. There has been an ongoing debate on the Supreme Court about the extent of incorporation, and whether the entire Bill of Rights, or only some of it’s guarantees, should be incorporated against the states.

This judgment settled the question until the Fourteenth Amendment was ratified in 1868. It guaranteed the citizens of every state the right to EQUAL PROTECTION of the laws and the right to due process of law. Following RATIFICATION of the Fourteenth Amendment, the Supreme Court began making individual freedoms enumerated in the Bill of Rights applicable to the states via the doctrine of incorporation. Under this doctrine the Court explained through a series of cases that no state may deny any citizen a fundamental liberty without violating the Fourteenth Amendment's Equal Protection and Due Process Clauses. The Court has ruled that these fundamental liberties include every liberty set forth in the Bill of Rights, except the Second Amendment's right to bear arms, the Third Amendment's right against quartering soldiers, the Seventh Amendment's

The concept of selective incorporation has played a huge role over the debate of the powers of a state or local government against the federal government. According to Tom Streissguth, "... it refers to how the rights outlined in the Constitution apply to the states -- and the requirement that state laws and constitutions must observe these rights" in his article "The Definition of Selective Incorporation" (Streissguth). After the Civil War, the idea of selective incorporation came with the passing of the Fourteenth Amendment. The legislature laid down significant new rights for the citizens of the United States; these rights included due process and equal protection. This amendment also touched upon and strengthened the first ten amendments to the Constitution known as the Bill of Rights.

Ever since the Bill of Rights was first written and published it had been established as the supreme law of the land. Certain amendments in the Bill of Rights have been incorporated and these include the First Amendment, parts of the Fifth Amendment, and also the Fourth Amendment. Selective incorporation helps to strengthen this idea by not allowing states to pass a law which takes away the rights that are published within the Bill of Rights. Although this has not been made an actual law, it is a belief that has been fortified over the years by rulings in the United States Supreme Court. Selective incorporation helps to protect citizens’ rights that are included in the Bill of Rights. It protects them from states imposing laws that would take

According to the United States Constitution, Amendment IV of the Bill of Rights “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” is a right of every citizen (1789). Further strengthening this civil liberty is the Exclusionary Rule, which says any evidence obtained through an illegal search shall be excluded from criminal proceedings according to Hargrave in lesson 7 (2017). However, there is the Good Faith Exception to the Exclusionary Rule, allowing that when law enforcement had a good faith and reasonable belief that they were acting within their legal authority, the evidence although illegally obtained would be admissible.

Issue: Was the evidence discovered during the search and seizure conducted in violation of the fourth amendment of the constitution? Also can you obtain items that are not to be seized for the search and seizure?

The exclusionary rule is one of the longest-standing doctrines in American criminal and constitutional law. It is a rule designed to limit police and the state’s prosecution in how they can collect and use evidence. In the simplest sense, the exclusionary rule states that evidence collected or analyzed by the state in violation of the constitution cannot then be used in a criminal court proceeding. It is, in essence, excluded from use in an attempt to secure a conviction. While this simple look at the exclusionary rule provides some basis for understanding its concepts, one must look further. As with any aspect of constitutional interpretation, the exclusionary rule has a number of exceptions, and its force has been blunted in many ways by the Supreme Court’s efforts. The exclusionary rule is ultimately an excellent way of providing disincentives to police and investigators, providing them with little reward for choosing to violate the fourth amendment in trying to secure helpful evidence. While it is not a perfect measure, it is the sort of measure that provides a practical disincentive to police and state overreach.

In chapter ten, the authors discuss the instance where the exclusionary rule may be ineffective. The exclusionary rule was created to deter illegal police misconduct; however, the exclusionary rule does not apply to private searches made out by private investigators. The violation of the fourth amendment applies to police or other officials in the executive branch of government. The violation of a defendant’s standing may in fact suppress evidence. Thus, Evidence gathered by private investigators is not subjected to the exclusionary rule. In addition, the exclusionary rule is only applicable in criminal cases to suppress evidence. In civil lawsuits, the evidence suppressed can be used against the defendant. In the O.J. Simpson case, a lawsuit

Chain of Custody Justice is the only achieved if an accurate record of all events is kept from the time of an alleged crime to the completion of trial. One way the investigators maintain the accuracy of that record is ensuring that evidence is collected and stored properly. The attention to accuracy is known as chain of custody. Chain of custody is a set of procedures that accounts for integrity of evidence by tracking its handling and storage from the time it was obtained to the time it was offered at trial (Gardner & Anderson, 2013, p.439).This procedure is very important in any criminal case. The goal for a proper criminal investigation is to keep a tight chain of custody in order for justice to be served.