In honor of the 230th anniversary of the ratification of the Bill of Rights, we are starting to get to the stuff where we make our living: 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 persons or things to be seized."

The Fourth Amendment is always rife with litigation in criminal cases. Essentially, this amendment is intended to prohibit the indiscriminate rummaging through of a person’s property by the government. The amendment requires that a search or arrest warrant must be supported by probable cause that a crime was committed and that evidence of that crime will be located at the location to be searched (or that the individual to be arrested committed the crime). The warrant must further particularly describe the place to be searched and the persons or things to be seized, meaning officers cannot come into your home and seize everything you own with a warrant that simply gives them authority to search anyplace you may be found.

Further reading:

• Lange v. California, which addressed the question: “Does the exigent circumstances exception to the Fourth Amendment’s warrant requirement apply when police are pursuing a suspect whom they believe committed a misdemeanor?” Answer: “Pursuit of a fleeing misdemeanor suspect does not categorically qualify as an exigent circumstance justifying a warrantless entry into a home.”

• Kansas v. Glover, which addressed the question: “For purposes of an investigative stop under the Fourth Amendment, is it reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary?” Answer: It is reasonable when the officer does not have any contradictory information.

• Mitchell v. Wisconsin, which addressed the question: “Does a statute that authorizes a blood draw from an unconscious motorist provide an exception to the Fourth Amendment warrant requirement?” Answer: “When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant.”

• Carpenter v. United States, which addressed the question: “Does the warrantless search and seizure of cell phone records, which include the location and movements of cell phone users, violate the Fourth Amendment?” Answer: Yes.

In honor of the 230th anniversary of the ratification of the Bill of Rights, in our third week, we are talking about Amendment III:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

I’m going to be hones with you: I read this one in law school, but if you had dared me to remember it until I looked the exact language up a few minutes ago, there’s a solid 75% chance I could not have done it. This language doesn’t come up all that often in our modern world, but it does go to show that the concerns of the founders are sometimes difficult to wrap our heads around and should make us think that the drafters of our Constitution’s ability to imagine the modern world must have been nearly impossible, as well.

Photo by Jakob Owens on Unsplash

In honor of the 230th anniversary of the ratification of the Bill of Rights, we move on to our second week: Amendment II:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

As we discussed last week, despite the plain language of this amendment, both the States and Federal government have placed a multitude of restrictions on the possession of firearms, which have been upheld b the Supreme Court. Individuals with certain convictions (even some misdemeanors) are prohibited (under Federal law) from possessing a firearm (specifically: most offenses involving domestic violence).

Further reading:

• Caetano v. Massachusetts, in which the Court addressed the question: “Does the Second Amendment protect the right to possess a stun gun for self-defense?” Answer: “Although stun guns are unusual in nature and were not common during the enactment of the Second Amendment, they are included in the Second Amendment’s protections.

• Voisine v. United States, in which the Court addressed the question: “Does a misdemeanor crime that requires only a showing of recklessness qualify as a misdemeanor crime of domestic violence under federal statutes 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?” Answer: Yes.

See you next week for the Third Amendment!

After the Constitution of the United States was drafted, it became clear to many of the “founders” that additional rights and restrictions should be explicitly provided to and placed upon the government. The Bill of Rights was drafted in 1789 and finally ratified on December 15, 1791. In honor of the 230th anniversary of the Bill of Rights, we will be spending the following 10(ish) weeks talking about each of the first 10 amendments. This week: Amendment 1:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The First Amendment to the United States Constitution establishes the right to free speech, a free press, peaceable assembly and the right to petition the Government. The First Amendment protects people in the United States from the government passing laws restricting their rights to exercise their own religion freely, from speaking freely, from assembling (peacefully) and freely. The Supreme Court has regularly found, despite this language, that reasonable time and place restrictions can be placed on speech. The most common example: laws can prohibit a person from shouting “fire!” in a crowded movie theater. Another example: the local government can require permits for protests or other public gatherings.

The rights contained in the Bill of Rights are foundational. They are the seeds from which so much of our law has sprouted. But they are also subject to interpretation. And restriction. And the plain language is fairly often not the end-all-be-all of what they mean.

Further Reading:

• Carson v. Makin, in which the Court addressed the question: “Does a state law prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction violate the Religion Clauses or Equal Protection Clause of the U.S. Constitution?” The Court has not ruled on this case at the time of this writing.

• Snyder v. Phelps, in which the Court addressed the question: “Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?” Answer: Yes.

• Morse v. Frederick, in which the Court addressed the question: “Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events? Answer: Yes. (Note: the student’s sign had the nonsensical phrase, “Bong Hits 4 Jesus” written on it.)

The blog linked to above is oyez.org and it contains a great searchable database of Supreme Court cases that is easy to read.

See you next week for the Second Amendment!

Both Sarah and I love to read, so when I saw there was a Read Across America day, I got very excited and knew I needed to share it. First, some history: Read Across America day began in 1997 as an initiative to encourage children to read. It is held on the nearest school day to March 2 every year because Thedor Geisel, or Dr. Suess, was born on March 2, 1904. Dr. Suess was a prolific author of children’s books that are beloved to this day.

In honor of Read Across America Day, we’ve got some recommendations for books for you:

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I know, I know, I didn’t have to tell you to read this one. But it is THE quintessential book about the law and justice in America. I don’t know very many lawyers who haven’t read this book. And an aside, when students sign up to take the bar exam in Louisiana, they have to pick a pseudonym so the graders can’t identify whose exam they are reading and, well, cheat. The examiners advise students not to choose the name “Atticus Finch” because SO MANY people have done it in the past that they run the risk of not being able to identify their own results.

Continuing our theme of books made into movies, you could pick any of a very long list of Grisham novels, but this was his first, and was inspired by To Kill a Mockingbird. Another book that attempts to grapple with the issues of race and justice in America that we have yet to solve.

As someone who uses the phrase “Kafkaesque” much more often than is really justifiable, I couldn’t resist the opportunity to include this book. This is the story of a man struggling with the bureaucracies of a court system that will not tell him what crime he has been accused of nor will it allow him to defend himself. It is absurd and frustrating but worth a read.

This is a non-fiction book that gives a good background in the development of DNA forensics and then delves deeply into the issues with said forensic evidence. For anyone with an interest in DNA, science-based evidence, or how exactly courts began to accept DNA evidence, this book is fantastic!

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We hope you found something here worth picking up on this National Read Across America day! Happy reading!

As always, if you or someone you know is accused of a crime, call us at (318) 459-9111 to schedule a consultation.

My favorite of the new laws passed by the Louisiana legislature in 2020 is the law regarding Daylight Savings Time.

Effective August 1, 2020, if the United States Congress amends 15 U.S.C. 260(a) to authorize states to observe daylight saving time year-round, Louisiana will, by the enactment of La. R.S. 1:50, adopt daylight saving time as the year-round standard of time for the entire state.

So far, we’re still subject to springing forward and falling back, but if the US Congress acts to change that, Louisiana will spring forward and stay there!