Constitutional rights and policing: the Constitution and the rule of law

Professor Ray Desjardins begins the winter term by holding up two things: a pocket copy of the United States Constitution and his old duty notebook. One of them, he tells the class, is the most important tool an officer carries, and it is not the notebook. Every power the class studied in the fall, from detaining a suspect to searching a car to taking a statement, exists inside the limits set by that small booklet. An officer who knows the criminal law but not the Constitution can build a perfect case and watch it collapse in court, because the evidence was gathered in a way the Constitution forbids. Worse, the officer can harm a person whose rights the officer swore to protect.

Amara Okafor asks whether the Constitution is mostly a problem for prosecutors. Desjardins shakes his head. Judges apply it after the fact, he says, but officers apply it first, in the street, in seconds, without a lawyer at their elbow. That is why this course treats constitutional law as a practical skill: knowing the rule, knowing the reason behind it, and being able to explain on the witness stand exactly why each step was lawful.

The rule of law

The idea that sits beneath every lesson in this course is the rule of law: the principle that everyone, including the government and the police, is subject to the law, and that state power may be used only when the law authorizes it. A police officer cannot act simply because an action seems sensible or because a supervisor approves. The officer needs legal authority, found in a statute, the common law or a court decision, or the consent of the person affected. When an officer acts without that authority, the officer is, in law, just another person interfering with someone's liberty or property.

Desjardins illustrates with a case from his early years. A sergeant ordered officers to photograph everyone leaving a bar after a fight, on the theory that one of them might be the attacker. Nothing in the law authorized compelling those photographs, and a court later criticized the practice. The sergeant's motive was good. The problem was that good motives are not legal authority. The rule of law protects the public precisely because it does not depend on the good intentions of whoever holds power at the moment.

In the United States, the rule of law is built into the structure of the Constitution itself: government has only the powers the people have granted, and the Bill of Rights lists liberties that government may not take away. The Supreme Court has repeatedly said that no officer of the law may set that law at defiance with impunity.

Where the Constitution fits in American law

The United States Constitution is the supreme law of the country under the Supremacy Clause in Article VI. It was ratified in 1788, and the first ten amendments, the Bill of Rights, were ratified in 1791. Originally the Bill of Rights limited only the federal government. After the Civil War, the Fourteenth Amendment of 1868 forbade any state to deprive a person of life, liberty or property without due process of law or to deny anyone the equal protection of the laws. Over the twentieth century the Supreme Court held that most of the Bill of Rights applies to the states through that amendment, so today the same core protections bind federal agents, state troopers, county sheriffs and city police.

Below the federal Constitution sit federal statutes, each state's own constitution, state statutes such as the Ohio Revised Code, local ordinances and court decisions. A state constitution can give people more protection than the federal Constitution, never less. The Ohio Constitution, for example, has its own search and seizure clause in Article I, Section 14, and Ohio courts sometimes read it independently. Each source of police authority must be consistent with the federal Constitution, which sets the floor everywhere in the country.

The rights that matter most to police

The amendments police meet most often are the Fourth, Fifth, Sixth, Eighth and Fourteenth. The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and says warrants must rest on probable cause, supported by oath, and particularly describe the place and things to be searched. The Fifth Amendment protects against compelled self-incrimination and double jeopardy and requires due process. The Sixth Amendment gives an accused person a speedy and public trial, an impartial jury, notice of the charge, confrontation of witnesses and the assistance of counsel. The Eighth Amendment forbids excessive bail and cruel and unusual punishment. The Fourteenth applies these protections to the states and adds equal protection.

The First Amendment, protecting speech, the press, assembly and petition, governs how police handle protests and people who record officers. The Equal Protection Clause of the Fourteenth Amendment forbids discrimination by the state, which matters for racial profiling. Lesson 10 covers both. The main remedies for violations, including the exclusionary rule and civil lawsuits under federal law, are the subject of Lesson 11.

Rights protect everyone, including the guilty

Marco DiSanto raises a common objection. If police find stolen tools in a suspect's backpack, why should it matter how they found them? Desjardins answers with a question of his own: how would the police know, before the search, that this person was guilty and not the next one? Constitutional rules have to be written for the moment before the search, when the officer cannot know what will be found. A rule that protected only innocent people would protect no one, because the officer could always claim to have believed the person guilty. The protections attach to everyone so that they reliably protect the innocent.

There is a second answer. Courts have found again and again that unchecked police power produces errors as well as abuses. Coerced confessions are unreliable. Searches without grounds catch far more innocent people than guilty ones. Detentions based on hunches fall disproportionately on certain neighborhoods and communities. Constitutional limits push investigations toward methods that work: articulable grounds, corroborated information, judicial authorization and careful questioning. Desjardins tells the class that in his experience the officers who knew the Constitution best were also the ones whose cases held up best.

A practical method for every encounter

Throughout this course the class will use the same four questions whenever an officer interacts with a member of the public. First, what is the officer doing: talking, detaining, arresting, searching, seizing or questioning? Second, what right is engaged by that action? Third, where does the officer's authority come from, and what conditions does it carry? Fourth, what duties does the action trigger, such as telling the person the reason or advising them of the right to counsel? Priya Sandhu, a former fraud analyst, points out that the method resembles a compliance checklist. Desjardins agrees and says that is the point: under stress, officers fall back on habits, and a good habit is asking, before each step, what gives me the authority to do this.

Counting constitutional issues in Port Ardent case files

To see how often these questions arise in ordinary work, the class reviews a sample of 60 Port Ardent case files that the county prosecutor's office returned to the police service last year with written concerns. Prosecutor Margaret Liu, who reviews charges for Port Ardent each week, sorted each concern by the right involved. The program below tallies them and shows which issues come up most. The categories use plain labels so that the same code works for both countries.

# Concerns raised by the prosecutor's office in 60 returned Port Ardent case files
concerns = [
    ("search", 19), ("detention", 11), ("counsel", 13),
    ("statement", 7), ("delay", 6), ("other", 4),
]
total = sum(n for _, n in concerns)
print("total concerns:", total)
for issue, n in sorted(concerns, key=lambda c: -c[1]):
    bar = "#" * n
    print(f"{issue:10s} {n:3d}  {n / total:.2f}  {bar}")

top_two = sorted(concerns, key=lambda c: -c[1])[:2]
share = sum(n for _, n in top_two) / total
print("share from the top two issues:", round(share, 2))

total concerns: 60
search      19  0.32  ###################
counsel     13  0.22  #############
detention   11  0.18  ###########
statement    7  0.12  #######
delay        6  0.10  ######
other        4  0.07  ####
share from the top two issues: 0.53

Searches and the right to counsel together account for more than half of the concerns. Liu tells the class that this pattern is typical: most constitutional problems in real files are not dramatic misconduct but routine steps done in the wrong order, such as asking questions before a person has had a chance to call a lawyer, or searching a phone because it was in a pocket at the time of arrest. Those are exactly the habits this course aims to build.

Who decides, and when

Constitutional questions reach the courts in several ways. Most often, a defense attorney files a motion to suppress evidence before trial, arguing that it was obtained in violation of the Fourth or Fifth Amendment. A person can also sue officers or agencies for violating their rights under federal civil rights law, 42 U.S.C. 1983. Sometimes a person challenges a statute itself as unconstitutional. The United States Supreme Court has the final word on the federal Constitution; state supreme courts have the final word on their own state constitutions.

Officers sometimes feel that judges second-guess decisions made in seconds. Desjardins acknowledges the feeling but tells the class that courts generally judge officers by what they knew and could reasonably believe at the time, not by hindsight. What courts will not accept is an officer who cannot explain the grounds for an action, or who explains them differently in court than in the notes. That is why LES-104's lessons on notes and reports connect directly to this course: the constitutional analysis a judge performs months later depends almost entirely on what the officer wrote down at the time.

Rights and responsibilities in Indigenous communities

Jesse Morningstar asks how the Constitution applies to policing in his community. Desjardins explains that the core rights apply to everyone, everywhere, including on reservation lands. The legal picture also includes tribal sovereignty. Federally recognized tribes have their own governments and courts, and the Indian Civil Rights Act of 1968 applies most Bill of Rights protections to tribal governments. Jurisdiction over a crime can depend on where it happened, whether the people involved are tribal members and which federal laws apply, and the Supreme Court's 2020 decision in McGirt v. Oklahoma showed how much that can matter. Later courses in the program return to this topic in detail.