Justice Matters with Bryan Porter: Knowing your rights

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Bryan Porter in 2016 (Courtesy photo)
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Last Saturday, Alfred Street Baptist Church hosted a public forum entitled, “Know Your Rights.” The forum featured a three-person panel of lawyers discussing the civil protections enshrined in our Constitution’s Bill of Rights, followed by a question-and-answer session in which attendees were given a chance to inquire about this somewhat esoteric area of constitutional law. Alfred Street Baptist Church boasts a historic link to Alexandria’s past, but it maintains a thriving and youthful congregation, and during the event the fellowship hall was filled with church members.

I was honored to be asked to participate in a forum that was so well-attended and that elicited so many thought-provoking questions. I thought it especially important that the panel also contained a prominent local defense attorney, Damon Colbert, and a law professor, so that a number of different viewpoints were represented.

The Bill of Rights was essentially a compromise devised by our founding fathers, some of whom wanted a powerful central government and others who favored one of limited authority. The compromise was subtle: the actual Constitution specifically listed the powers entrusted to the new federal government, while the first ten amendments created tangible limits on the exercise of that plenary authority.

Some of the amendments were very important to colonial Americans but have little impact in the modern world. For instance, the third Amendment holds, in pertinent part, that “no soldier shall, in time of peace be quartered in any house, without the consent of the Owner.” British troops had frequently ‘commandeered’ private homes without compensation prior to the Revolution, an abuse of power that is rarely encountered today.

Two amendments, the Fourth and Fifth, are most frequently associated with the enforcement of criminal law, and were the focus of many of the questions the panel received. The Fourth Amendment protects citizens against unlawful searches and seizures and generally requires law enforcement officers to obtain a warrant before conducting a search for evidence.

The Fifth Amendment prohibits the government from requiring a citizen to incriminate him- or herself and has been interpreted by the Supreme Court as affording the citizens an absolute right to have an attorney present during police questioning. I have examined provisions of both of these amendments in previous articles.

The Fourth and Fifth Amendments have been interpreted over the past 200 years by a variety of courts and important legal doctrines have been extracted from them. Legal concepts such as investigative detentions, the “Miranda” warnings, and emergency exceptions to the search warrant requirement all flow, directly or indirectly, from the Bill of Rights. As such, it serves as a kind of playbook governing citizen and police encounters.

I firmly believe that citizens should understand their rights, and I enjoy teaching people about the Constitution. I provide a block of instruction on constitutional law at my annual Commonwealth’s Attorney’s Citizens Academy, which will be held next spring. If you’re interested in this topic, or in simply learning about my office, please consider applying for the academy.

Of course, law enforcement officers must understand the legal limits and obligations that affect their investigative powers. To that end, I have taught literally thousands of law enforcement officers – in states as varied as Virginia, Maryland, Maine and Nevada – that these constitutional constraints are not improvident ‘technicalities,’ but rather positive aspects of living in a democratic republic.

I fully believe that officers can conduct thorough investigations while also respecting constitutional mandates. Indeed, those very constitutional mandates strike an appropriate balance between maintaining public safety and maintaining a citizen’s right to go about her or his business free from unwarranted intrusion.

More pragmatically, a police investigation that fails to follow controlling legal authority may find itself fatally wounded by the exclusion of relevant evidence from trial. I will explore the contours of what is known as the “Exclusionary Rule” in a future article, but for now, suffice it to say a trial judge may prohibit the prosecution from using incriminating evidence at trial if that evidence was unconstitutionally obtained.

The writer is Commonwealth’s Attorney for Alexandria.

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