2nd Circuit upholds illegal stop

[FrankDrebin]

Society will never be "free from criminals".

I have the right to protect myself from people that are the subject of the article - and the state does not have the right to infringe my rights to "keep me safe" from them.

I never said society would ever be free from criminals. And as far as the government not having the "right" to infringe on your rights to "keep yourself safe", when your efforts to "keep yourself safe" infringe on my rights, the government has a DUTY to set limits on you and enforce them.

 

[Rich Lucibella]

Frank-
Looking at it from your position, I think one of the problems here relates to unequal application of the Law to various parties.

Let's take your example of an "improper" bust-in of someone's house, dragging him out of bed and presenting him to a Judge for auto theft. The law will apply full force of penalty for his crime. But you argue His only remedy is civil.

That's what sticks in my craw.....absent any Exclusionary Rule; absent common sense application of the 4th Amendment, you ("The Government") have no down side to speak of. You are not subject to equal punishment (as is John Q. Citizen) for B&E, Assault and Kidnapping, even in the event your "bust" was bogus.....so long as you were acting "in good faith". If you ("The Govenment") acts in bad faith, your only downside is to give me ("The Citizen") some of my own tax dollars back!

OTOH, were I to engage in the exact behavior, producing the exact same benefit to society, there would be TWO criminal trials....regardless whether I were acting "in good faith" or not. Now, this is not about "jealousy"....it's about balance. Absent REAL adverse ramifications of rights violations, the Cops are placed above the very laws they are charged to enforce. I'm not arguing that we should apply criminal statutes to cops simply because an honest error was made. But the very fact that we, as society, cannot do so mitigates for clear protections under the 4th.

Erosion of these protections creates a divide. Our common enemies exploit that divide. The divide grows. We all loose.
Rich

 

[jburtonpdx]

The same goes for LEO's wouldn't you think?

USP45
This is in regards to the inch mile thing - that is exactly what I was refering to.

 

[jburtonpdx]

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.

Frank
Read what you just said. Drop all legal technical arguments, stop trying to win, and just read it.

If I ever heard that come directly from somebodys mouth, face to face I think I would loose my temper.

The Constitution is the law of the land.

 

[jburtonpdx]

I never said society would ever be free from criminals. And as far as the government not having the "right" to infringe on your rights to "keep yourself safe", when your efforts to "keep yourself safe" infringe on my rights, the government has a DUTY to set limits on you and enforce them.

The government has a duty to serve the will of the people. The government has a duty to protect people from each-other. The duty is not to set limits and enforce them. The limits and enforcement are required in order to protect people from each other. When the limits go beyond that the government is no longer serving the people. Kind of a cart and horse thing.

 

[Long Path]

USP, it is a neatly-put little document, isn't it?

Okay, here's how we know that the Courts have the final say on what the Constitution is: The other government entities are given NO judicial powers, and the courts (first line of Art III) are given: "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."

Article I gives the Legislature explicit powers for law-making in Section 8 and takes some away in Section 9.
Article II gives the President explicit powers to govern.
Article III gives the judicial power (the power to judge) of the Nation to the the Supreme Court and its inferior courts.

I think that, as a strict constructionist, you will agree that if the Constitution does not specifically give an entity a power, that entitiy mustn't wield the power in question. We don't need the Legislature acting as the judiciary, deciding cases and determining whether the law that they passed was valid within the constraints of the Constitution. We sure as heck don't want the Executive branch makind judicial decisions as to whether actions it's taken are Constitutional.

The Separation of Powers Doctrine is a principle inherent within the very manner in which the document is written.

And Frank puts it pretty well-- you sure's shootin' would complain that your rights were violated if you were arrested (let's stipulate that you're innocent, and a witness lied to the cops) and you were not afforded your rights. Say you talked to the cops without realizing that you didn't have to? (Miranda.) Say you couldn't afford an attorney and weren't given one (Gabriel.) Say the local sheriff decided that "reasonable" bond was a million dollars, for the alleged theft of a car? (Assorted case law.) Say you got scared when you first were told that the cops had a warrant for your arrest for car theft, and ran away, and the cops shot you in the back? (TN v. Garner) Say the cops broke into your house without a warrant and fished around until they found something that they could convict you on, and then tried you on it? (Mapp v. OH) Suppose the cops listened to your phone conversations, bugged your car, looked through your doctor's records, and took pictures of you in the shower at the gym to see if you had a funny shaped mole like their alleged perpetrator? (Griswald v. Connecticut)

Case law tells you what Constitutional rights are explicitly yours.

 

[FrankDrebin]

Let's take your example of an "improper" bust-in of someone's house, dragging him out of bed and presenting him to a Judge for auto theft. The law will apply full force of penalty for his crime. But you argue His only remedy is civil.

The point of my post was that even if the arrest was improper the exclusionary rule doesn't apply, and it never did. I don't ARGUE his only remedy is civil, it IS only civil. The court has jurisdiction over him even if the arrest was improper. The only thing that can be excluded is evidence, and there is no evidence in my example.

That's what sticks in my craw.....absent any Exclusionary Rule; absent common sense application of the 4th Amendment, you ("The Government") have no down side to speak of. You are not subject to equal punishment (as is John Q. Citizen) for B&E, Assault and Kidnapping, even in the event your "bust" was bogus.....so long as you were acting "in good faith". If you ("The Govenment") acts in bad faith, your only downside is to give me ("The Citizen") some of my own tax dollars back!

The cop is subject to the same laws you are. I know of several cops who were prosecuted for bad search warrants and bad searches. However, get the crime right. The cop kicking in a door with the intent to arrest someone with probable cause, but without exigent circumstances and without a warrant has not met the elements of burglary, nor has he met the elements of kidnapping or Trespassing. MAYBE a misdemeanor of "Entering Without Owner's Permission". Fine, charge him with that and admit the evidence he seized, if any. My example wasn't to get into that, but to show you that the exclusionary rule ONLY applies to evidence, NOT "people".

OTOH, were I to engage in the exact behavior, producing the exact same benefit to society, there would be TWO criminal trials....regardless whether I were acting "in good faith" or not. Now, this is not about "jealousy"....it's about balance. Absent REAL adverse ramifications of rights violations, the Cops are placed above the very laws they are charged to enforce. I'm not arguing that we should apply criminal statutes to cops simply because an honest error was made. But the very fact that we, as society, cannot do so mitigates for clear protections under the 4th.

As a "civilian" you are LESS restricted than the police in this state when it comes to making a felony arrest, not more. Do you really think you would be criminally charged if you ran into your neighbor's house and arrested him after you saw him shoot his wife?

 

[Rich Lucibella]

However, get the crime right. The cop kicking in a door with the intent to arrest someone with probable cause...

Yes, but that's not the example you gave. Your example went like this:

What I mean is, you can be wanted for stealing a car and I can kick your door in with no warrant and no probable cause to believe you're home, drag you out of bed in the middle of the night and put you in front of a judge for stealing a car, even if there is no warrant

You don't happen to find that to be an eggregious act, in context of the Bill of Rights or Universal Human Rights. I consider it a violation of both. If there is no warrant, just who was it that decided I was "wanted"?

This is similar to your example of a "known drug house" that wasn't really "known" to be a drug house at this point in time; but it had been "known" one time in the past.

So let's put these things in context:
It's legal to invade a person's home, auto or business on less than "probable cause", without a warrant and the suspect has zero recourse, as long as you were acting "in good faith", according to the Government's Ever Changing Definition. Anything produced from that invasion relating to the suspected crime or other crimes, including "Conspiracy" (Thought Crimes), is then admissable. That's called a Police State.

Rich

 

[Long Path]

It's also not actually the case.

Rich, the Fourth Amendment stands, bud. The only time cops can enter your home absent an invitation or a warrant is under exigent circumstances. Have I done it? Yep. I've answered burglar alarms (an invitation) and found houses with doors standing ajar (exigent circumstances), and made a thorough search for any people or evidence of recent burglary, without checking with the owner.

I've heard noises that sounded like ongoing fighting when sent to a Disturbance call, and walked into the house, to find a bunch of teenaged boys drinking.

I've seen a bunch of teenagers on the front steps of a house drinking and smoking joints, only to walk into the the house as I pulled in the drive. Upon ascertaining that the remaining kid was 19, I walked right on into the room full of (screeching) kids.

All of these actions were taken without obtaining a warrant, but they were the exception to the rule-- if I've wanted to see the meth lab in a certain notorious metal shed in a certain notorious back yard, I've had to do a little better than the hearsay of every other neighbor in the trailer park saying "Well, EVERYBODY knows what he's doing back there-- why don't y'all do sumpin' about it?" to go look inside. Absent probable cause to obtain a warrant, I had to grit my teeth and keep on keepin' on with my other activities.

I've had the objects of misdemeanor warrants drive past me and run into their house before I could get parked and catch them, and I've gotten back into my car and driven off when they didn't answer the door.

The Fourth Amendment stands, even yet. There's a lot of us that want it to, and a lot of departments that will by-Gawd see their officers are disciplined or fired or even prosecuted if they don't uphold it. It's too expensive not to.

 

[USP45usp]

Case law tells you what Constitutional rights are explicitly yours.

So you're saying that if tomorrow that the SCOTUS says that all amendments except the 16th is null and void, that our only Right would be to pay taxes?

I must be missing something because it sounds as if the SCOTUS is the ruler of the United States and us People don't even come into the picture.

Wayne

 

[FrankDrebin]

You don't happen to find that to be an eggregious act, in context of the Bill of Rights or Universal Human Rights. I consider it a violation of both. If there is no warrant, just who was it that decided I was "wanted"?

I never said it wasn't an unconstitutional seizure. I purposefully used it as an example to show you that the exclusionary rule doesn't always apply to an improper search/seizure. I "decided you were wanted" because I saw you bail out of the car yesterday. I know where you live but I have no reason to believe you're home. So I kick the door in anyway, and although it's an improper arrest/entry you are STILL legally brought before the judge if I get the warrant 12 hours after I arrest you and have you in court the next morning. The exclusionary rule does NOT deprive the court from having jurisdiction over you even if the arrest was unlawful. Same idea sort of applies when the cops go into Mexico to "kidnap" someone wanted in the US.

This is similar to your example of a "known drug house" that wasn't really "known" to be a drug house at this point in time; but it had been "known" one time in the past.

No, the "known drug house" example is a lot easier to develop reasonable suspicion from for the purposes of making a Terry stop.

So let's put these things in context:
It's legal to invade a person's home, auto or business on less than "probable cause", without a warrant and the suspect has zero recourse, as long as you were acting "in good faith", according to the Government's Ever Changing Definition.

No, that's not correct, and the "Good Faith" exception to the exclusionary rule has a lot more to it than just a belief by the officer that what he is doing is constitutional. There's plenty of case law on that one.

How about this one, on another tangent. Your son is arrested for killing a woman, but the police don't know where the body is. You get your kid a lawyer who tells him not to answer any questions. The police know he's got a lawyer and the lawyer has said that he won't be answering any questions. The cops take him in a police car, handcuffed, to transport him back to the other police station in the jurisdiction where the crime took place. On the way, the officer tells him that it's a shame that the girl is going to rot without having a Christian burial. Your son then leads the cops to where the body is. Is that OK by your reading of the constitution and amendments? Actually, that one is for Wayne....

 

[Long Path]

So you're saying that if tomorrow that the SCOTUS says that all amendments except the 16th is null and void, that our only Right would be to pay taxes?

Question: HOW could the Supreme Court rule an Amendment to the Constitution to be "Null and void"? The S Ct only rules on whether an activity is legal or not under the Constitution. It can't render an opinion that an Amendment to that Constitution is Unconstitutional-- that would be to say that the Constitution was Unconstitutional.

The Court can't do it. They don't have the power.

 

[gb_in_ga]

"The Court can't do it. They don't have the power."

Actually, they can, but not all at once. They do have to take it on a case by case, issue by issue basis. But after a couple of dozen or so strategically chosen cases, they could pretty much invalidate the entire constitution as we know it, leaving us as taxpaying slaves to the state. Loopholes and generous application of the "Commerce" clause is sufficient.

 

[Rich Lucibella]

Matt-
I've little disagreement with you. However, the Fourth Amendment is obviously interpreted differently in suburban Dallas than in suburban Detroit.

I never said it wasn't an unconstitutional seizure. I purposefully used it as an example to show you that the exclusionary rule doesn't always apply to an improper search/seizure. I "decided you were wanted" because I saw you bail out of the car yesterday. I know where you live but I have no reason to believe you're home. So I kick the door in anyway, and although it's an improper arrest/entry you are STILL legally brought before the judge if I get the warrant 12 hours after I arrest you and have you in court the next morning.

When it comes to North vs South; East vs West; Urban vs Suburban.....just which areas seem to make the most "activist" precedents? I doubt Frank's rookies are likely to move in your direction. Far more likely your rookies and chiefs will gravitate to Detroit methods in elections to come.

And that, sir, is a damn shame.
Rich

 

[Al Norris]

First a nit to pick with Frank, then a general observation to correct some myths about the Law and the Courts.

Frank wrote:
I bet there are a lot of red-blooded, chest-thumping self-righteous Americans right here on this forum who loudly supported the officer in Iraq (I believe it was Iraq) who unlawfully obtained evidence from a prisoner believing that the potential evidence would help prevent an ambush of his troops.

Yes, it was Iraq. But...

And the big "but" is that he was a soldier, in a declared hostile country, in armed conflict. That is sooo different than what the police are called to do. Or are you now implying that the Military and Law Enforcement are one and the same. I don't think you are. I think you didn't give your statement much thought, when you wrote it. Enough of the nit...

Long Path has it correct, but I would put it in its historical perspective.

Article III, section 2 of the Constitution reads in part: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution..."

The part that is interesting/telling here is, "The Judicial Power." What is that Judicial Power? That power includes what is known as Judicial Review. It is in judicial review, that the Court decides what is and is not constitutional. In the case of the SCOTUS, they are the final arbiters for determining what the Constitution actually says. This was decided early in our history by the case, Marbury v Madison.

In Marbury v. Madison the Court ruled that a section of the Judiciary Act of 1789 granted the Court the power to issue writs of mandamus. The Court ruled that this exceeded the authority allotted the Court under Article III of the Constitution and was therefore null and void. Chief Justice, John Marshall, understood that if the Supreme Court issued a writ of mandamus (i.e., an order to force Madison to deliver the commission), the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear, again weakening their position. This ruling established the precedence of Judicial Review and has never been struck down by any succeeding ruling by SCOTUS.

So while the Constitution does not specifically grant Judicial Review, it is implied in the Judicial Power and upheld and first utilized by Marbury v Madison.

Incidently, the term that a law that is unconstitutional is null and void, while first used by Justice Marshall, was later expanded and exemplified by Justice Story in his Commentaries on the Constitution. It was Justice Story that said that such a law was not only null and void, but that it was null and void from its very inception. The term is not within the Constitution itself.

 

[FrankDrebin]

Far more likely your rookies and chiefs will gravitate to Detroit methods in elections to come.

I doubt it...Detroit is currently operating under several consent decrees because of their tactics which included arresting witnesses to homicides with no probable cause of anything....I don't know if it's because they hire such morons or what, but there it is.....

Yes, it was Iraq. But...

And the big "but" is that he was a soldier, in a declared hostile country, in armed conflict. That is sooo different than what the police are called to do. Or are you now implying that the Military and Law Enforcement are one and the same. I don't think you are. I think you didn't give your statement much thought, when you wrote it. Enough of the nit...

So that was legal???

 

[USP45usp]

I think that I'm beginning to catch on (I'm slow you know) with Frank and some others.

Majority rules in their minds. The will uphold the law of the mob, unless it pertains to them of course, as has already been shown by Frank.

We are not a democracy, we are a Republic. Just because a man or a group of men/women make a law, be them the senate, the house, or the courts, doesn't make that law right. All laws are null and void if they go against the Constitution and the Bill of Rights, first 10 as far as I'm concerned.

For a Peace Officer or any in the government, state or federal, to uphold a unconstituitonal law is treason as far as I'm concerned.

You can stuff your case law, law that is contrary or against the Constitution or the Bill of Rights, first ten, are not valid and thus are null and void.

I like you Frank and I will never put you on the ignore list. Yet I will never agree with you about any violation when it comes to the Constitution and the Bill of Rights.

You may kick off your boots at night, unhinge your duty belt, and settle down to relex, as we all do, but I couldn't sleep knowing that I've violated someones rights just because I thought that I had to do what I thought I had to do, anything goes.

You presented a statement that said that you'd bet that I would hide behind case law if it was going to help me and I assumed you ment a law that I knew was unconstitutional but used it anyway. Well, you are wrong on that account. I never had and I never will.

In my reading of the Constitution and the Bill of Rights and my growing understanding of what it means, thanks to the help of many here, if I commit a crime that is outlined in these documents then I should, and hopefully shall, get the punishment that I deserve. I am not above the law of the land, as outlined.

As for your the documents were meant to change with time as we grew, BS. If it was supposed to "grow" then it would have been outlined that it was supposed to grow. It doesn't.

As for police are here to stay, get over it... I think that maybe you are abit arrogent in that statement, money can be removed from the tax bases and police come and many go, as in effect in my great city of Eugene. Why you ask, because the police have proven themselves criminals in too many cases that the people won't vote for funding. Think about that.

There has been a period that the gap between the old agruement of "us vs them" has gotten to the point that many of Us will defund many of Them. We've done it here in Oregon with the liberals screaming for protection, us stupid red neck types just ensuring that we have what we need to protect ourselves.

There has been screaming from the laid off LEO's about how much we need them, yet we just continue to do what we have to do to protect ourselves and our courts have been content with allowing us to do so.

The main reason that we in the rural and smaller cities have chosen to decline the services of the LEO's is mostly due to the LEO's having such attitudes as respect on demand, enforcing unconstitutional laws, and having well, just an attitude.

Something that they aren't taking to the bank, as you pointed out, on a bi-weekly basis.

Wayne

 

[Al Norris]

Frank responded:
So that was legal???

I'm sorry that I have to point this out. Soldiers are not LEO's. LEO's are not soldiers. The fact that what the Col. did was not legal (per the UCMJ, not civil law), does not negate the apple to oranges comparison you made.

So did I make a mistake? Do you equate the Police as being the Military?

 

[FrankDrebin]

So did I make a mistake? Do you equate the Police as being the Military?

Not sure if you made a mistake or not. I wasn't trying to equate the police and the military. I was pointing out that I believe there is a group of people here who have no problem, or at least very little problem with that Army officer breaking the law, while having a big problem with the police even BENDING the law. If the law is so very dear, you can't have it both ways. You can't cheer for the American soldier who is breaking the law to interrogate an Iraqi and condemn the American policeman who is breaking the law while interrogating an American.

Majority rules in their minds. The will uphold the law of the mob, unless it pertains to them of course, as has already been shown by Frank.

Actually, where I'm from, the law of the mob is a lot more "aggressive" than the law I enforce.

For a Peace Officer or any in the government, state or federal, to uphold a unconstituitonal law is treason as far as I'm concerned.

Are you ready to answer some "constitutional or unconstitutional" questions? You'll have 5 seconds to answer each. If you get one wrong, you're shot for treason.

You may kick off your boots at night, unhinge your duty belt, and settle down to relex, as we all do, but I couldn't sleep knowing that I've violated someones rights just because I thought that I had to do what I thought I had to do, anything goes.

In many cases you wouldn't KNOW you violated someone's rights until a judge told you so...then, another judge might tell you "no, you didn't violate that guy's rights" and yet another "Oh yes you did! Summon the guards and shoot him at sunrise for treason!"

As for police are here to stay, get over it...

Nothing for me to get over. 5 more years and I don't care if there are no more police on the planet earth. Just as long as I have my perimeter defenses in place and my pension check gets deposited once a month.

 

[USP45usp]

Nothing for me to get over. 5 more years and I don't care if there are no more police on the planet earth. Just as long as I have my perimeter defenses in place and my pension check gets deposited once a month.

I hope that you have five more years. In some places of the country, your butt would have been sent looking for work, not because of your attitude but because the people are getting smarter about defunding positions that they are finding are taking money out of their pockets with unconstitutional laws.

You could always get a job in a liberal stronghold through, but they will fire you because you weren't there in their time of need.

Are you ready to answer some "constitutional or unconstitutional" questions? You'll have 5 seconds to answer each. If you get one wrong, you're shot for treason.

That's fine, you've already stated that you don't understand the Constitution so therefore, you cannot judge my answers.

In many cases you wouldn't KNOW you violated someone's rights until a judge told you so...then, another judge might tell you "no, you didn't violate that guy's rights" and yet another "Oh yes you did! Summon the guards and shoot him at sunrise for treason!"

I still don't grasp why people won't or can't read and then understand the Constitution and the Bill of Rights. To put it into prospective for a gun forum, do you bust people, any people, on a gun charge? If you had, you have violated the Bill of Rights and the basis of the Constitution. Being someone in the RKBA, what can you use to justify your actions? You have just commented treason by enforcing laws against basic Rights.

Wayne

*I'm tired, have to work tomorrow.