2nd Circuit upholds illegal stop
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Oh, for those that don't know about this rule, goto http://caselaw.lp.findlaw.com/data/constitution/amendment04/06.html . Pretty good summary of what Frank and others are talking about.
Wayne
Wayne
BreacherUp!
New member
USP, I'll take your human nature argument and raise you one.
Wouldn't you agree that it is human nature for someone to believe something that he sees. If I saw someone steal a car, it would probably be in my nature to presume he is guilty of GTA. Now, I know the court/jury legally determines guilt or innocence. But in your mind, is someone going to convince you otherwise?
Wouldn't you agree that it is human nature for someone to believe something that he sees. If I saw someone steal a car, it would probably be in my nature to presume he is guilty of GTA. Now, I know the court/jury legally determines guilt or innocence. But in your mind, is someone going to convince you otherwise?
FrankDrebin
Moderator
I disagree. I can ASSUME you're guilty if I want as long as I operate within the law.
I don't know if I agree with characterizing an unconstitutional search or seizure as "breaking the law". The constitution isn't a statute. It CAN be a crime under certain circumstances, but under those circumstances it's a violation of a particular statute, with specfic elements and penalties.
Sometimes it is based on IMPROPERLY obtained evidence. As I explained earlier, imroperly obtained evidence can STILL be used to impeach a defendant.
So let the finder of fact decide.
I'm not proposing what I'm proposing to get more criminals off the street. I'm proposing it because I think there's a better way that will result in more educated, better informed cops, fewer improper seaches AND more criminals going to trial in a court where more of the facts are known.
Absolutely. I predict the next things that cops will lose is the consent search, followed by the pretextual traffic stop, which I understand has already been shot down by Washington State.
Why is it that you are ducking my questions? I asked for the paragraph or wording in the Constitution and you give me case law.
Yet you duck this
All of your agruements have been based on case law. Not on the Constitution.
I do believe that the Constitution states that if a law is unconstitutional then that law is NULL and VOID.
We've all known that many of the rulings from the courts are unconstitutional but even after your oath (I'm assuming that your oath is close to the military oath) you will defend unlawful acts, unconstitutional acts and then try to rationalize those acts.
Laws are supposed to be based entirely on the Constitution and the Bill of Rights, not international law (as what is happening now) or "feel good" law or even "society rights".
Just to be silly, if an anti-LEO got into power and made a law that sayed that all LEO's were now "in season", would you, as an LEO, obey that law? Or a law that states that since more LEO's have been found to abuse their power (either true or not) that all LEO's would be stricken of their Rights and could be violated at anytime by an agency?
Anytime that the people's Rights are violated is wrong. Be that person a criminal or law abiding. There is NO excuse for the violation of any Rights.
That my friend is what the People are trying to get across. You may disagree with this but this is why this post is now 4 pages long.
Wayne
I followed USP's link, and found this particuarly relevant paragraph, the one that established legal precedence for the principle of exclusion:
"Nevertheless, ten years later the common-law view was itself rejected and an exclusionary rule propounded in Weeks v. United States. 170 Weeks had been convicted on the basis of evidence seized from his home in the course of two warrantless searches; some of the evidence consisted of private papers like those sought to be compelled in the Boyd case. Unanimously, the Court held that the evidence should have been excluded by the trial court. The Fourth Amendment, Justice Day said, placed on the courts as well as on law enforcement officers restraints on the exercise of power compatible with its guarantees. ''The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.'' 171 The ruling is ambiguously based but seems to have had as its foundation an assumption that admission of illegally-seized evidence would itself violate the Amendment. ''If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secured against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitu tion. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.'' 172"
Fascinating. It seems that the Supreme Court made the same sort of arguments and came to the same conclusion that I did, somewhat over 100 years ago. Illegally seized evidence is inadmissable. Period.
"Nevertheless, ten years later the common-law view was itself rejected and an exclusionary rule propounded in Weeks v. United States. 170 Weeks had been convicted on the basis of evidence seized from his home in the course of two warrantless searches; some of the evidence consisted of private papers like those sought to be compelled in the Boyd case. Unanimously, the Court held that the evidence should have been excluded by the trial court. The Fourth Amendment, Justice Day said, placed on the courts as well as on law enforcement officers restraints on the exercise of power compatible with its guarantees. ''The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.'' 171 The ruling is ambiguously based but seems to have had as its foundation an assumption that admission of illegally-seized evidence would itself violate the Amendment. ''If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secured against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitu tion. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.'' 172"
Fascinating. It seems that the Supreme Court made the same sort of arguments and came to the same conclusion that I did, somewhat over 100 years ago. Illegally seized evidence is inadmissable. Period.
FrankDrebin
Moderator
Case law IS constitutional law. If it weren't for case law, we wouldn't be having this discussion because there would be no exclusionary rule.
What was the question?
Who determines what law or what action of government agents is constitutional? Me? You? Col. Olsen and the Michigan Militia? Or The Supreme Court?
Of course not. There are certain laws which I choose not to obey or enforce. And even more hypothetical laws that I wouldn't obey or enforce. That doesn't make it any more or less constitutional if I DO decide to be a hypocrite and enforce them.
Who's making excuses? I want a system that will deter more cops from more improper searches while still bringing the evidence before the court.
FrankDrebin
Moderator
Well, keep reading Clarence Darrow! You haven't even gotten to Mapp. V. Ohio and all the case law supporting the exceptions to the Exclusionary Rule!! When dealing with the law there is very seldom a "Period" followed by exclamation points...It's more of a "to be continued" with a bunch of periods.........For your reading pleasure, try: Rakas V. Illinois, US V. Padilla, Nix V. Williams, US V. Leon, Massachusetts V. Sheppard, US V. Havens, Pensylvania Board of Probation and Parol V. Scott, US V. Calandra, US V. Janis, INS v. Lopez-Mendoza, AZ V. Evans, People V. Defore, Wolf V. Colorado.....and the list goes on......
That's kind of circular logic. First, the States made the 13th Amendment (check out Article V). Second, the SCOTUS has the final say on what is and isn't Constitutional, by virtue of Article III of the big C. So, when ol' Taney said in Dredd Scott that Scott had no standing to sue because he was property, the Chief Justice [et al] was probably right-- at the time, his ruling was in line with the Constitution. We had no 13th, 14th, and 15th Amendments. We had Article I saying that "other persons" represented 3/5 of a person for the purposes of population, and the Constitution actually referenced the taxation of their sale, and no Amendments could be made to change that for 20 years! Was it right? Hell no! Was it Constitutional? Well, that's what it said in the Document.
Without an Equal Protection Clause (Amendment 14), what was to make it UnC?"I'm not proposing what I'm proposing to get more criminals off the street. I'm proposing it because I think there's a better way that will result in more educated, better informed cops, fewer improper seaches AND more criminals going to trial in a court where more of the facts are known."
All of which is very well intentioned, I'm sure. And all of which is so very expedient as well.
But it is illegal and with good reason, for it is a slippery slope to an authoritarian police state. It makes mockery of the Constitution and the rule of law. Ah, yes, that pesky Constitution document, you know, the Law of the Land and all that. It is, quite frankly, something I would expect to see in some Third World backwater, the ones with courts of the Kangaroo variety. Places where the rights of the people and the rule of law are both laughable.
Of course you would have fewer improper searches: you just downgrade what constitutes improper searches. You don't like the definition, so you seek to change it? That's what it sounds like to me, because that is what it all boils down to.
Of course there would be more facts known if you allow that which is illegally obtained. But the rule of law becomes a mockery. The acknowledged presence of tainted evidence degrades the integrity of the entire criminal justice system, for if any illegal evidence is to be allowed, where is the line to be drawn about which illegal evidence is allowable and which is not? Will we slide down the slope, allowing that which is fabricated to be accepted as fact, as even now the MSM seems to want to do? NO. NO. NO.
All of which is very well intentioned, I'm sure. And all of which is so very expedient as well.
But it is illegal and with good reason, for it is a slippery slope to an authoritarian police state. It makes mockery of the Constitution and the rule of law. Ah, yes, that pesky Constitution document, you know, the Law of the Land and all that. It is, quite frankly, something I would expect to see in some Third World backwater, the ones with courts of the Kangaroo variety. Places where the rights of the people and the rule of law are both laughable.
Of course you would have fewer improper searches: you just downgrade what constitutes improper searches. You don't like the definition, so you seek to change it? That's what it sounds like to me, because that is what it all boils down to.
Of course there would be more facts known if you allow that which is illegally obtained. But the rule of law becomes a mockery. The acknowledged presence of tainted evidence degrades the integrity of the entire criminal justice system, for if any illegal evidence is to be allowed, where is the line to be drawn about which illegal evidence is allowable and which is not? Will we slide down the slope, allowing that which is fabricated to be accepted as fact, as even now the MSM seems to want to do? NO. NO. NO.
FrankDrebin
Moderator
The admission of improperly obtained evidence is NOT always "illegal" as you will see when you start reading those other cases.
Not at all. The exclusionary rule never changed what was considered an unconstitutional search. Neither would changing or replacing the rule with some other deterrant. The rule or lack of same has absolutely nothing to do with what is and isn't an unconstitutional search.
There would be fewer unlawful searches because cops would be more leery of the sanctions than they are now. The sanctions would actually have teeth. Who really cares if the dopeman goes free? The cop who arrested him doesn't live in his neighborhood. I had a juror apologize to me one time for finding a guy guilty of a much lesser offense than what he was originally charged with. I knew the guy lived in the juror's neighborhood because that came out during voir dire.
I didn't care WHAT they convicted him of, because I knew I did my job. I told her "You don't have to apologize to me, I live way over on the west side!"
FrankDrebin
Moderator
I believe Breecher-Up summed that one up (as well as a Supreme Court justice in a case about Terry searches) when he said that the cop should not be expected to know every nuance of constitutional law at the drop of a hat on the street when a room full of lawyers can't even get it straight in the comfort of their law libraries. Why would I need a search warrant? The constitution doesn't require it.
I'll pass. I need to be up on current constitutional case law.
Uh, USP? He's right. At least, in Federal court (especially at the higher levels) he's right. Stare decisis is how we keep score of the rulings on Constitutional law.
The US Constitution is a pretty brief document. A lot of phrases leave some room for interpretation. The Courts interpret, and to keep it consistent, they follow case law so that they won't have to rehash every single blessed tenant of the law to get to the point. If so, decisions would take hundreds of pages, most of which would be boiler plate. Isn't it nice that we don't each time have to establish the right of judicial review of the Executive branch before the Court says something like "Um, no, Mr. President, you can't actually intern all folks who have eaten Arabic food in camps under executive order"? All the SCOTUS has to say when challenged is "Per Marbury v Madison (1803), we here excercise the right to judicial review, and render the following judgment:"
Again, like it or not, but Article III says that the Judiciary has the right to interpret the Constitution. Case law determines what is constitutional and what is not. Latest federal case law IS Constitutional law. That's not opinion-- that's fact. Don't like it? See Article V to change the Big C.
But Frank, the document really isn't that big or hard to read. The Constitution is the Constitutional law. What is now considered "constitutional law" is nothing but Null and Void if it goes against the Constitution and the Bill of Rights.
I take my oath seriously, I didn't just mouth the words.
Long Path
Actually, if 2/3's of the states ratify an amendment, then that is what is Constitutional. Not the final say of the SCOTUS. The people are still in charge
(somewhat ).The only job of the SCOTUS is to read and uphold the Constitution. They have been and I fear will, allow more and more "interpretations" that are based more and more on international law. Anyone, LEO or fed that follows such rulings, are going against their oaths.
I don't think that anyone will change their position on this one. I will follow the laws as outlined in the Constitution while others will continue to disreguard this document, go with "current" law, and just step all over others Rights.... unless it affects them that is.
Wayne
FrankDrebin
Moderator
I can recite the 4th amendment verbatim. That does me next to no good at all on the street. I need to know what I can do if I arrest someone based on a known informant's tip, and that person tells me that another person has the rest of the dope, and they give me a description of that person and tell me where she'll be, and I go there and see her standing in a doorway with a bag, and then go to grab her but she runs into the doorway of the apartment she's standing in.....I need to know if I can grab her, arrest her, look in the bag for dope and in what order can I do these things. The 4th amendment, as written, does not help me at all in the several seconds I have to make my decisions. I need to know the case law.
Wayne, I'm guessing that you would be ready and willing to slap "the current law" on me even if it conflicted with what you understand to be "The Constitution" if it meant keeping you out of jail!! As a matter of fact Wayne, I'm sure you know what the Miranda Warning says and how it relates to the 5th amendment. Since you go by the laws outlined in the constitution, would it be OK with you if I had your kid in custody on a felony arrest and began questioning him and when he said "I'd like to talk to a lawyer" said "Oh, this is no big deal, you don't need a lawyer" and talked him right into a confession? Would you say that confession was OK? Or would you say we violated his rights by continuing to question him after he requested a lawyer? Can you tell me which amendment says I have to stop questioning him when he says he wants a lawyer? "Current law" says I have to. Would you let me take that confession into court without challenging it on the grounds that I didn't stop questioning him when he said he wanted a lawyer?
Nope. If it's against the law as outlined in the original documents then I should be jailed, hanged, or serve my time.
I will be willing to take you up on the issue if it wasn't allowed, given, or according to the Constitution and the Bill of Rights as written.
If you catch me fair and square, then I'm willing to do whatever I have to do to make admends. Fine, jail, whatever, as long as the law was Constitutional and within the realm of actual Constitutional law.
Other then that, if it's a null and void law, then yes, I would use every "law" or whatever to get out of it.
Wayne
Okay, Article III.
Article III.
Section 1
The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behavior, and shall, at stated Times, receive for
their Services a Compensation which shall not be diminished during their
Continuance in Office.
Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority; to all Cases affecting Ambassadors, other
public Ministers and Consuls; to all Cases of admiralty and maritime
Jurisdiction; to Controversies to which the United States shall be a Party; to
Controversies between two or more States; between a State and Citizens of
another State; between Citizens of different States; between Citizens of the
same State claiming Lands under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme Court shall
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and
such Trial shall be held in the State where the said Crimes shall have been
committed; but when not committed within any State, the Trial shall be at such
Place or Places as the Congress may by Law have directed.
Section 3
Treason against the United States, shall consist only in levying War against
them, or in adhering to their Enemies, giving them Aid and Comfort. No Person
shall be convicted of Treason unless on the Testimony of two Witnesses to the
same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no
Attainder of Treason shall work Corruption of Blood, or Forfeiture except
during the Life of the Person attainted.
Long Path. I didn't read or see that the one supreme court is the final say. Article III right?
Wayne
Article III.
Section 1
The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behavior, and shall, at stated Times, receive for
their Services a Compensation which shall not be diminished during their
Continuance in Office.
Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority; to all Cases affecting Ambassadors, other
public Ministers and Consuls; to all Cases of admiralty and maritime
Jurisdiction; to Controversies to which the United States shall be a Party; to
Controversies between two or more States; between a State and Citizens of
another State; between Citizens of different States; between Citizens of the
same State claiming Lands under Grants of different States, and between a
State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme Court shall
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and
such Trial shall be held in the State where the said Crimes shall have been
committed; but when not committed within any State, the Trial shall be at such
Place or Places as the Congress may by Law have directed.
Section 3
Treason against the United States, shall consist only in levying War against
them, or in adhering to their Enemies, giving them Aid and Comfort. No Person
shall be convicted of Treason unless on the Testimony of two Witnesses to the
same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no
Attainder of Treason shall work Corruption of Blood, or Forfeiture except
during the Life of the Person attainted.
Long Path. I didn't read or see that the one supreme court is the final say. Article III right?
Wayne