Back in 2004, D.C. police decided that Antoine Jones was a bad dude and needed watching. Employing a spy store full of surveillance tools, the police obtained a court order allowing them to install a GPS device on the Jeep that Mr. Jones routinely drove (the car was registered to his wife). The court told the police they had ten days to install the device within the District.
On the 11th day, in a parking lot in Maryland, the police attached the GPS device to Mr. Jones' Jeep. Over the course of the next month the police obtained more than 2,000 pages of tracking data they used to put Mr. Jones with some really bad dudes who dealt cocaine.
Mr. Jones was subsequently indicted for his role in the conspiracy. His first trial ended in a hung jury. Los federales then obtained a second indictment. Mr. Jones wasn't so lucky at his second trial - he was convicted and sentenced to life in prison.
On appeal he argued that the installation of the GPS device constituted an unlawful search and seizure. The appellate court said "yes" and "no." The court held that installing a GPS device on a car was not the equivalent of a search - based upon the Katz test of whether the owner had a reasonable expectation in privacy as to his movements on a public roads. But the court did rule that the data obtained while the car was parked in the couple's garage or driveway did violated the Katz test.
In U.S. v. Jones, 565 US _____ (2012), the U.S. Supreme Court held that the attachment of the GPS device did constitute a search as law enforcement personnel, in effect, trespassed upon Mr. Jones' property in placing the device on the undercarriage of his car. Justice Scalia took a trip in his wayback machine and held that the Fourth Amendment was designed to protect the citizenry from trespass by the state. He wrote that Katz did not supplant the concept of physical trespass as the test to determine whether something was a search - but that it was an addition to the analysis.
Of course that doesn't explain why it's okay for the police to look through your trash can while it sits on your driveway waiting to be taken away by the sanitation engineers. It also doesn't jibe with allowing the police to wander up to a garage and look in the windows - or to look in the open windows of a house. In making those determinations, the Supremes looked at Katz and then looked away from the Bill of Rights.
In her concurrence, Justice Sotomayor castigated Justice Scalia for taking a narrow approach to the Fourth Amendment. Justice Sotomayor would rather use the Katz analysis for determining whether a search took place. In her view, today's technologies have taken us beyond the question of whether the police trespassed on someone's property. She also raised the question of whether we waive our reasonable expectation of privacy when we disclose private information to a third party (just think about your smartphone's GPS or the information you type in to register for certain websites).
Justice Alito was also concerned that the concept of trespass was passe and that it led to inconsistent outcomes depending on the surveillance methods used by the police. He also pointed out Justice Scalia's opinion failed to address the installation of tracking devices by car manufacturers such as GM's OnStar or Lo-Jack.
Justice Alito also questioned whether a motorist had a reasonable expectation of privacy regarding the movement of his car in public. He didn't seem to have too much problem with what the government did in Mr. Jones' case, but he said at some point such monitoring would raise questions. For Justice Alito, attaching the device to the Jeep wasn't the problem, the problem was the amount of time the device was allowed to transmit.
What we have here is the so-called conservative bloc of the Court ruling against the use of warrantless GPS tracking by the police to be unconstitutional based on 18th century common law trespass while the so-called liberal bloc arguing that the installation of the unit was unconstitutional because it violated Mr. Jones' reasonable expectation of privacy due to the length of time the device was transmitting. Would we have had a different decision had the device only been installed for a week, ten days, two weeks?
From my point of view, the concept of trespass should be the starting point for any Fourth Amendment analysis - with the Katz analysis used to determine if an intrusion into one's privacy not contemplated by the Founding Fathers constitutes a search. Relying on one without the other makes little sense. Left unsaid is how the Court plans to reconcile the holding in Jones with prior decisions ignoring the tort of trespass upon property.
For more analysis, please see:
"Supreme Court strikes down GPS tracking device, raises more questions in the process," Liberty and Justice for Y'all (Jan. 23, 2012)
"Reactions to Jones v. U.S.: the government fared much better than everyone realizes," SCOTUSblog (Jan. 23, 2012)
Showing posts with label 4th Amendment. Show all posts
Showing posts with label 4th Amendment. Show all posts
Tuesday, January 24, 2012
Wednesday, December 14, 2011
Eyes in the sky
Law enforcement officials in North Dakota are the first in the nation to admit to using unmanned Predator drones to conduct surveillance flights. The aircraft are able to fly two miles overhead for hours at a time, allowing police a better opportunity to spy on folks - even without a warrant - without being detected.
A helicopter flying overhead is easily detectable. The helicopter has to fly low enough for those on board to see the target of their curiosity. The sound of the engine is more than enough to alert folks that there are spying eyes in the sky. The same holds true for police airplanes - they are noisy and easy to spot.
The unmanned drones allow the police to monitor a location for hours at a time with no warning to those on the ground below.
What's the big deal, you might ask. If I'm not doing anything untoward in my backyard, why should I care if the cops are flying two miles overhead with cameras and sensors pointed toward me?
It has to do with the way in which "unreasonable" has been defined and redefined over the years. The Founding Fathers were pretty clear in what they meant in the Fourth Amendment - if the police didn't have a warrant, the search was unreasonable. But, over the years, the courts have rendered that term damn near meaningless. In the name of security and efficiency, what was once patently unreasonable has now become the norm.
There were no airplanes or helicopters, much less unmanned drones, back in the late eighteenth century. The authors of the Bill of Rights had no inkling of what the Wright Brothers would do at Kitty Hawk. They had no idea what exotic technology we would have at our fingertips in the early twenty-first century.
Any tool that allows the state to snoop on what you're doing behind closed doors (or a gate) is yet another way for the state to deprive you of your right to be left alone. It is another fundamental assault of the notion of limited government - of course you'll never hear Rick Perry, Newt Gingrich or any of the other wingnuts decry the use of the technology.
Less and less of what we do every day is private. The state has no business snooping on its citizens. If they think someone's up to something no good, convince and judge and get a warrant.
In the meantime... smile, you might just be on candid camera.
The unmanned drones allow the police to monitor a location for hours at a time with no warning to those on the ground below.
What's the big deal, you might ask. If I'm not doing anything untoward in my backyard, why should I care if the cops are flying two miles overhead with cameras and sensors pointed toward me?
It has to do with the way in which "unreasonable" has been defined and redefined over the years. The Founding Fathers were pretty clear in what they meant in the Fourth Amendment - if the police didn't have a warrant, the search was unreasonable. But, over the years, the courts have rendered that term damn near meaningless. In the name of security and efficiency, what was once patently unreasonable has now become the norm.
There were no airplanes or helicopters, much less unmanned drones, back in the late eighteenth century. The authors of the Bill of Rights had no inkling of what the Wright Brothers would do at Kitty Hawk. They had no idea what exotic technology we would have at our fingertips in the early twenty-first century.
Any tool that allows the state to snoop on what you're doing behind closed doors (or a gate) is yet another way for the state to deprive you of your right to be left alone. It is another fundamental assault of the notion of limited government - of course you'll never hear Rick Perry, Newt Gingrich or any of the other wingnuts decry the use of the technology.
Less and less of what we do every day is private. The state has no business snooping on its citizens. If they think someone's up to something no good, convince and judge and get a warrant.
In the meantime... smile, you might just be on candid camera.
Friday, December 2, 2011
First they came for the (alleged) terrorists...
On Tuesday the U.S. Senate had the opportunity to put the rule of law ahead of fear-mongering and politics -- and failed spectacularly.
By a vote of 61-37 the Senate defeated an amendment to the defense appropriations bill that would remove three troubling provisions that have raised the spectre of a presidential veto. The bill, if passed, would allow the U.S. to hold those suspected of involvement with terrorism - including US citizens - indefinitely without charge. In other words, forget about that American concept of innocent unless proven guilty; if los federales suspect you're involved in terrorism, you are guilty unless you can prove otherwise.
The bill would also require civilian law enforcement to turn over anyone suspected of terrorist activities into military custody. The bill would also place further restrictions on the transfer of detainees at Guantanamo who were cleared of all charges.
Holding a suspect indefinitely without bringing charges makes a complete mockery out of our criminal (in)justice system. Without being informed of the specific charges against him, an inmate can't muster a legal defense and his right to a speedy trial is taken away. The very notion of indefinite detention should make us all shudder - but it won't. After all, who's going to raise a stink about someone accused of plotting to blow up a building? He's not a person, he's a terrorist. He has no rights.
But once you've demonized one group of defendants, it makes it easier to demonize the next group. And who will that be? And who will stand up to challenge the state then?
Liberty is a funny creature. We all have the right to be left alone by our government. But, at the same time, that means we can't be protected from every possible threat out there. It's a trade-off we make. The more freedom and liberty you have, the less security you get. And vice versa.
What's more important to you?
When we allow the government to take away our rights - no matter how tangentially - we are allowing the fox into the hen house. There will always be a rationale. C'mon, these are really, really bad people.
It's happened to the Fourth Amendment. Where once we were protected against unreasonable search and seizure, today it's little more than a piece of paper. In the name of security and efficiency we have allowed one of our most important freedoms to be whittled away to nothing.
Today it's suspected terrorists. Who will it be tomorrow?
By a vote of 61-37 the Senate defeated an amendment to the defense appropriations bill that would remove three troubling provisions that have raised the spectre of a presidential veto. The bill, if passed, would allow the U.S. to hold those suspected of involvement with terrorism - including US citizens - indefinitely without charge. In other words, forget about that American concept of innocent unless proven guilty; if los federales suspect you're involved in terrorism, you are guilty unless you can prove otherwise.
The bill would also require civilian law enforcement to turn over anyone suspected of terrorist activities into military custody. The bill would also place further restrictions on the transfer of detainees at Guantanamo who were cleared of all charges.
Holding a suspect indefinitely without bringing charges makes a complete mockery out of our criminal (in)justice system. Without being informed of the specific charges against him, an inmate can't muster a legal defense and his right to a speedy trial is taken away. The very notion of indefinite detention should make us all shudder - but it won't. After all, who's going to raise a stink about someone accused of plotting to blow up a building? He's not a person, he's a terrorist. He has no rights.
But once you've demonized one group of defendants, it makes it easier to demonize the next group. And who will that be? And who will stand up to challenge the state then?
Liberty is a funny creature. We all have the right to be left alone by our government. But, at the same time, that means we can't be protected from every possible threat out there. It's a trade-off we make. The more freedom and liberty you have, the less security you get. And vice versa.
What's more important to you?
When we allow the government to take away our rights - no matter how tangentially - we are allowing the fox into the hen house. There will always be a rationale. C'mon, these are really, really bad people.
It's happened to the Fourth Amendment. Where once we were protected against unreasonable search and seizure, today it's little more than a piece of paper. In the name of security and efficiency we have allowed one of our most important freedoms to be whittled away to nothing.
Today it's suspected terrorists. Who will it be tomorrow?
Tuesday, November 1, 2011
Eyes in the sky
Unmanned drones will soon be making their appearance in the skies over Montgomery County, Texas. Officials with the Montgomery County Sheriff's Office are excited about the latest addition to their arsenal of tools to violate the people's right to be left alone.
Supposedly the drones will be used to "hunt criminals" and find missing persons.
But the drones will be flying over private property while conducting these searches. Well, what's the problem with that, you ask. The problem is the irreparable harm these flights will do to the citizenry's reasonable expectation of privacy.
You see, our rights to be protected against unlawful search and seizure are based on this vague notion of whether a particular intrusion violates a person's reasonable expectation of privacy. Right now a homeowner would have a reasonable expectation that no one is snooping on him in his own backyard if he has a fence or trees of shrubs that shield the public's view of his yard. But, announce that you will be sending unmanned drones on missions throughout the county and one's expectation that he will be left alone in his backyard goes out the window.
Of course the authors of the Bill of Rights had no idea that one day man would be able to soar through the skies in motorized flying machines. That just made it easier for the government to declare that your personal space did not extend upward into the heavens.
It's much like the situation at the nation's airports these days. The government tells you that you will have little or no expectation of privacy in an airport terminal if you expect to board a plane - that means you have no reasonable expectation of privacy. That means the government doesn't need a warrant to conduct a search of you or your bags.
The apparent goal of the state is to place as much of the public under their eyes (and thumbs) as possible. Quite ironic in this era in which every politician on the right screams to the high heavens of his fervent belief in limited government. The feudal lords north of Houston can proclaim all they want that these drones will make the public safer, but I'm not buying it.
Quite the contrary, the forces of the state are consolidating their power over the people. We have someone forgotten the words Abraham Lincoln spoke on the hallowed battleground of Gettysburg. The government is here to serve us, not the other way around.
In the name of protecting ourselves from whatever the threat of the month may be, we have allowed our interests to be made subservient to those of the government, including our right to be left alone. Someone please explain to me how that embodies the ideal of limited government.
See also:
"Droning on in Montgomery County: unmanned aircraft could be mounted with weapons," Grits for Breakfast (Oct. 29, 2011)
"Texas civil libertarians have an eye on police drones," Houston Chronicle (Oct. 31, 2011)
Supposedly the drones will be used to "hunt criminals" and find missing persons.
But the drones will be flying over private property while conducting these searches. Well, what's the problem with that, you ask. The problem is the irreparable harm these flights will do to the citizenry's reasonable expectation of privacy.
You see, our rights to be protected against unlawful search and seizure are based on this vague notion of whether a particular intrusion violates a person's reasonable expectation of privacy. Right now a homeowner would have a reasonable expectation that no one is snooping on him in his own backyard if he has a fence or trees of shrubs that shield the public's view of his yard. But, announce that you will be sending unmanned drones on missions throughout the county and one's expectation that he will be left alone in his backyard goes out the window.
Of course the authors of the Bill of Rights had no idea that one day man would be able to soar through the skies in motorized flying machines. That just made it easier for the government to declare that your personal space did not extend upward into the heavens.
It's much like the situation at the nation's airports these days. The government tells you that you will have little or no expectation of privacy in an airport terminal if you expect to board a plane - that means you have no reasonable expectation of privacy. That means the government doesn't need a warrant to conduct a search of you or your bags.
The apparent goal of the state is to place as much of the public under their eyes (and thumbs) as possible. Quite ironic in this era in which every politician on the right screams to the high heavens of his fervent belief in limited government. The feudal lords north of Houston can proclaim all they want that these drones will make the public safer, but I'm not buying it.
Quite the contrary, the forces of the state are consolidating their power over the people. We have someone forgotten the words Abraham Lincoln spoke on the hallowed battleground of Gettysburg. The government is here to serve us, not the other way around.
In the name of protecting ourselves from whatever the threat of the month may be, we have allowed our interests to be made subservient to those of the government, including our right to be left alone. Someone please explain to me how that embodies the ideal of limited government.
See also:
"Droning on in Montgomery County: unmanned aircraft could be mounted with weapons," Grits for Breakfast (Oct. 29, 2011)
"Texas civil libertarians have an eye on police drones," Houston Chronicle (Oct. 31, 2011)
Tuesday, October 11, 2011
Search warrants for dummies
Maybe it's because they're lazy. Maybe it's because they can't be trusted to do it right by themselves. Whatever the reason for it, this is blood search warrants for dummies:
MoCo Search Warrant
There's no such thing as a fill-in-the-blank and check-the-boxes search warrant affidavit for any other criminal offense. Judges reviewing warrants to search a house in a felony case take more time to review the affidavit for probable cause than do judges deciding whether or not to allow the state to jab a needle in a motorist's arm.
This is your government at work - against you and your rights.
MoCo Search Warrant
There's no such thing as a fill-in-the-blank and check-the-boxes search warrant affidavit for any other criminal offense. Judges reviewing warrants to search a house in a felony case take more time to review the affidavit for probable cause than do judges deciding whether or not to allow the state to jab a needle in a motorist's arm.
This is your government at work - against you and your rights.
Friday, October 7, 2011
The volunteer army
From: Bill Reed
Sent: Thursday, June 23, 2011 11:31 AM
To: Criss, Susan
Subject: FW: Needing volunteers for Galveston County "No-Refusal" weekend for July 1,2,3 @ Dickinson Police Department: 8pm-4am
Judge: are you available? So far Lonnie and Ellisor are in. Grady is out of town. thanks, BR
*****
From: Bill Reed
Sent: Wednesday, August 24, 2011 9:59 AM
To: Ellisor, John; Cox, Lonnie; Mallia, Wayne; Criss, Susan; Dupuy, Christopher; Grady, John
Subject: looking for volunteers for No Refusal Weekend for Labor Day: 9/2/11-9/4/11
Any takers? Thanks, BRLooking for volunteers?
Or, are you looking for judges who will blindly sign a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit? Are you looking for judges who buy into your notion that a person accused of driving while intoxicated has fewer rights (or at least less-important rights) than a person charged with any other offense? Are you looking for judges who agree that we should do whatever it takes to coerce people into pleading guilty to DWI?
You see the DA's Office is hand-picking its judges. They're going back to the judges who have signed, without question, warrants in the past and who are more than willing to continue to do so. The last thing the state wants is a judge who might just question this practice.
No. The deck must be stacked against the citizen accused. Even if we have to make an absolute mockery out of a document we all took an oath to uphold.
What, you think these judges are actually reading these affidavits and asking themselves if the officer has but forward enough facts to support his arrest decision?
From: Chris Paschenko
Date: Friday, Dec 31, 2010 12:01 pm
Subject: DWI arrests
To: Judge Susan Criss
We[re] you working and in what capacity when [L.B.] and [T.R.] were arrested? I'm told it was DWI. Also seeking on the record comment.
Thanks.
Chris
*****
From: judgecrissWhat else needs to be said about the mechanics of a No Refusal Weekend. There you have a judge telling a reporter that she was at the station "to sign warrants."
To: Chris Paschenko
Sent: Fri, Dec 31, 2010 12:39 pm
Subject: Re: DWI arrests
I was the judge at the station last night there to sign warrants worked 8pm to 4 am. Rules do not allow me to comment on the cases. Signed LB blood search warrant. Other waived need for warrant.
Not to review them. But to sign them.
Sadly, most folks don't care. They see nothing wrong with jabbing needles in someone's arm because you think they might have been intoxicated. Hey, we're out there keeping you safe. And these are the same folks who are more than willing to suffer any indignity at the hand of TSA employees just so they can board a plane. Hey, gotta keep us safe from terrorists.
Maybe we're just so self-absorbed that we simply don't care if the government is intruding on someone's rights - so long as we're not the one being trampled upon. As long as it's then that the government is after it's okay. The only problem is that at some point there will be no more them to protect you from the coercive power of the state. And, by then, it will be too late.
Thursday, October 6, 2011
Filling in the blanks
June 25, 2008
"The Galveston County Criminal District Attorney's Office is coordinating another no-refusal weekend for Friday July 3 and Saturday July 4, 2009. Dickinson Police Department has graciously agreed to host the event again this year. Judge Lonnie Cox will be our judge for Friday night and Judge John Ellisor will perform those duties on Saturday night. The hours of operation will be from 8:30 PM on July 3, 2009 until 4:30 AM on July 4, 2009 and against at 8:30 PM on July 4, 2009 until 4:30 AM on July 5, 2009...
I have attached the search warrants and affidavits for search warrants. The search warrant returns can be done immediately after the blood draw is performed."
-- Galveston County Assistant District Attorney Joel H. BennettThat's right. We've got your search warrant and affidavits right here. They're ready for you to fill in the blanks and type 'em up. No need to make an officer actually recite the facts in a case that gave rise to his belief that the driver was intoxicated at the time of driving. Nope. Just plug in your name and the motorist's name and we're in business.
I understand prosecutors and police wanting fill-in-the-blank affidavits, it allows officers to spend more time on the streets
I mean, all we're asking to do is to perform an invasive procedure on a motorist based on our hunch that she might be intoxicated and the fact that she exercised her right to refuse a breath test. Well, that and we can strap her down if she resists. But, c'mon, why all the hoops?
January 2, 2011
"The morning of December 30, 2010, Fox 26 News began to air footage preparing the public for our initiative, as I addressed the public and presented a "warning and awareness" that our intentions were to increase public safety by removing DWI offenders from our roadways on Galveston Island and a Zero Tolerance No Refusal approach method would be in effect to combat this problem...
"With the assistance of the following agencies the effort was a success:
- UTMB
- Galveston County District Attorney's Office
- District Judge Lonnie Cox
- District Judge Susan Criss
- County Judge John Grady
- The Galveston Police Department Command Staff
- The Galveston Daily News
- Fox 26 News
"Over the last month I have been in correspondence with the listed agencies and the initiative was proven a success.
- Texas Highway Patrol
-- Chad Powers, Galveston Police DepartmentWhat could possibly be more clear as to the role of the judges in these assaults on the Fourth Amendment? It's not the job of a judge to assist in the arrest and/or prosecution of anyone. It is the role of the judge to sit as a neutral arbiter in a legal proceeding. When the police begin thanking judges for assisting in their initiatives, it's time to start questioning the role of those judges in our criminal (in)justice system.
Since most of these DWI cases will be filed in county court as misdemeanors, two of the judges (Grady and Dupuy) reviewing warrants on suppression hearings are two of the judges who volunteered to approve these fill-in-the-blank form affidavits. And just how do you think those rulings are going to go?
Slowly but surely the judiciary is being subsumed into the trial division of the district attorney's office. Maybe it makes for great copy during campaign season. Maybe the voters like it. You know, the voters who either blindly mark R or D on their ballot or think that judicial candidates should sound like they're running for sheriff or DA.
Wednesday, October 5, 2011
Should I bring a pen along?
Last August I wrote about documents I received through an open records request for documents related to No Refusal Weekends in Harris County. See here, here, here and here.
Today it's time to take a trip down the Gulf Freeway to the island to what Galveston County officials have been up to when it comes to making a mockery out of the Fourth Amendment.
Hmmm... how might that conversation go?
Prosecutor: "Judge, I was wondering if you'd like to volunteer to approve and sign search warrants for blood draws during our No Refusal Weekend?"
Judge: "Ordering a blood draw on a misdemeanor case? That's insane."
Prosecutor: "I'll take that as a no. Next!"
An application for a search warrant should be reviewed by a neutral and detached magistrate. Once a judge accepts the pitch from the DA to be a part of the team for a No Refusal Weekend, that judge loses any claim to being detached. Either he was asked to participate or he volunteered - either way, the judge is far from neutral.
And despite "fill in the blank" warrant applications that are long on conclusions and woefully short on facts, these "neutral and detached" judges are more than happy to take pen to paper to authorize the shredding of the last remnants of the constitution.
Today it's time to take a trip down the Gulf Freeway to the island to what Galveston County officials have been up to when it comes to making a mockery out of the Fourth Amendment.
June 27, 2011 -
"Special Crimes Prosecutor Bill Reed has coordinated preparations for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 8 pm through 4 am at the Dickinson Police Department. (Special thanks go to Chief Morales for his hospitality.) Bill has enlisted the cooperation of Judges Lonnie Cox, John Ellisor and Christopher Dupuy to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws."
-- Galveston County District Attorney Jack Roady (group e-mail)The DA's Office has "enlisted the cooperation" of judges to "approve and sign" search warrants authorizing blood draws. As I have stated many times before, if the state is "enlisting" judges to participate in this spectacle, the deck is already stacked against anyone accused of driving while intoxicated. And, yes, that Christopher Dupuy.
Hmmm... how might that conversation go?
Prosecutor: "Judge, I was wondering if you'd like to volunteer to approve and sign search warrants for blood draws during our No Refusal Weekend?"
Judge: "Ordering a blood draw on a misdemeanor case? That's insane."
Prosecutor: "I'll take that as a no. Next!"
August 31, 2011 -
"Special Crimes Prosecutor Bill Reed has coordinated for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 11 pm through 4 am at the Dickinson Police Department. Bill has enlisted the cooperation of Judges John Ellisor, Christopher Dupuy and John Grady to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws."
-- Galveston County District Attorney Jack Roady (group e-mail)Please note, no one is talking about reviewing warrant applications. The judges are there to approve the warrants and subject motorists to an intrusive procedure. This is limited government? Oh, now I understand, they were talking about limiting the authority the judiciary has over the police, not the authority of the state over the individual. That makes so much more sense now.
An application for a search warrant should be reviewed by a neutral and detached magistrate. Once a judge accepts the pitch from the DA to be a part of the team for a No Refusal Weekend, that judge loses any claim to being detached. Either he was asked to participate or he volunteered - either way, the judge is far from neutral.
And despite "fill in the blank" warrant applications that are long on conclusions and woefully short on facts, these "neutral and detached" judges are more than happy to take pen to paper to authorize the shredding of the last remnants of the constitution.
Tuesday, September 13, 2011
I'll take a little cheese with my whine, please
Now, if I might be permitted the indulgence of a little whine...
I coach youth soccer. This is the fifth year I've coached a team of kids six years old or under. I am also the soccer commissioner at the church my daughters attend. I volunteer my time to get the fields ready to play, to run registration and to organize teams (14 this season).
The past few weeks I have been attempting to run a law practice, be a good husband to a wife who watched her father die and get things ready for the upcoming soccer season.
Along the way I have to deal with parents who want their little angels on the same team with their BFF's. I have to deal with coaches who aren't willing to split teams up in order to field enough teams to ensure kids have adequate playing time. I have to recruit parents to volunteer a couple of hours a week so we have enough coaches for the teams. And I have to arrange practice times so that we don't end up with two teams on the same field at the same time.
When I was a kid playing soccer we didn't request whose team we wanted to be on. We signed up and were assigned to a team. You might know some of the kids on the team and you might not know others. In the end you made some new friends.
The first year my oldest daughter played she knew one other kid on her team. She made friends with the other kids and has been playing soccer with some of them for the past three years. She did fine. She never complained that so-and-so wasn't on her team. She just went out and played.
But apparently the notion that kids can play with other kids they don't know and, not only survive, but make new friends, is a bit out there for some parents today. They get upset if their child isn't on the same team as their best friend or their classmates. They get upset if the guy down the street isn't the coach. It would be one thing if it were just a couple of parents - that I could handle with ease. But no. It seems that everyone walks around thinking the entire program needs to revolve around them and their kid's need to play only with their friends or classmates.
How does such behavior do any of the kids any good? When they go to school they will be placed in classes at random. They won't get to sit next to their best friend. Heaven forbid they have to sit next to someone who's different than they are.
Athletics, like school, is as much about socialization as it is anything else. Sure, by the end of the year the kids will have developed just a little bit more as soccer players. But they will also have developed a better sense of sportsmanship and what it means to be on a team. And, at this early age, that's far more important that whether their team wins or not.
Everyone wants their kids to live in an antiseptic bubble. Well, guess what. The world ain't like that. Kids scrape their knees, they fall off their bike, they get dirty, they get scared. And, through it all, they mature and learn how to cope with adversity and disappointment. They learn to rely on their own intuition and skill.
I guess we could baby them all and let them grow up to become little lemmings that just accept it when the government decides it's time to take away another freedom in the name of greater security. And you wondered what ever happened to the Fourth Amendment.
I coach youth soccer. This is the fifth year I've coached a team of kids six years old or under. I am also the soccer commissioner at the church my daughters attend. I volunteer my time to get the fields ready to play, to run registration and to organize teams (14 this season).
The past few weeks I have been attempting to run a law practice, be a good husband to a wife who watched her father die and get things ready for the upcoming soccer season.
Along the way I have to deal with parents who want their little angels on the same team with their BFF's. I have to deal with coaches who aren't willing to split teams up in order to field enough teams to ensure kids have adequate playing time. I have to recruit parents to volunteer a couple of hours a week so we have enough coaches for the teams. And I have to arrange practice times so that we don't end up with two teams on the same field at the same time.
When I was a kid playing soccer we didn't request whose team we wanted to be on. We signed up and were assigned to a team. You might know some of the kids on the team and you might not know others. In the end you made some new friends.
The first year my oldest daughter played she knew one other kid on her team. She made friends with the other kids and has been playing soccer with some of them for the past three years. She did fine. She never complained that so-and-so wasn't on her team. She just went out and played.
But apparently the notion that kids can play with other kids they don't know and, not only survive, but make new friends, is a bit out there for some parents today. They get upset if their child isn't on the same team as their best friend or their classmates. They get upset if the guy down the street isn't the coach. It would be one thing if it were just a couple of parents - that I could handle with ease. But no. It seems that everyone walks around thinking the entire program needs to revolve around them and their kid's need to play only with their friends or classmates.
How does such behavior do any of the kids any good? When they go to school they will be placed in classes at random. They won't get to sit next to their best friend. Heaven forbid they have to sit next to someone who's different than they are.
Athletics, like school, is as much about socialization as it is anything else. Sure, by the end of the year the kids will have developed just a little bit more as soccer players. But they will also have developed a better sense of sportsmanship and what it means to be on a team. And, at this early age, that's far more important that whether their team wins or not.
Everyone wants their kids to live in an antiseptic bubble. Well, guess what. The world ain't like that. Kids scrape their knees, they fall off their bike, they get dirty, they get scared. And, through it all, they mature and learn how to cope with adversity and disappointment. They learn to rely on their own intuition and skill.
I guess we could baby them all and let them grow up to become little lemmings that just accept it when the government decides it's time to take away another freedom in the name of greater security. And you wondered what ever happened to the Fourth Amendment.
Tuesday, August 30, 2011
Twisting and contorting by the pool
Just when you thought the courts had injected some sanity into the DWI "crisis," an appellate court finds a way make it go away. Take State v. Geiss for instance.
This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.
Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:
This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."
The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:
It would appear that Mr. Geiss had won after all.
But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.
Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).
This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.
Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:
"for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples . . .." It further alleged that "[s]aid property was used to commit the offense [of DUI] . . . a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense."In response to Mr. Geiss' motion to suppress, the trial court threw out the blood test results on the grounds the warrant violated Mr. Geiss' right to privacy under the Florida Constitution, violated the state's implied consent law and violated the state's warrant statute.
This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."
The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:
However, Florida's implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so.The appellate court did, however, find that the language of the state's warrant statute prohibited the state from obtaining a search warrant to draw blood in a misdemeanor case since a warrant can only be used to obtain "property...used as a means to commit a crime." Had Mr. Geiss been charged with a felony at the time the warrant was issued, though, the statute would have permitted a warrant to draw the blood.
It would appear that Mr. Geiss had won after all.
But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.
Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).
Thursday, August 18, 2011
Excuses, excuses
When an officer has a hunch someone might be just a bit tipsy behind the wheel and he can't find a legal basis for the stop he tends to fall back on his "community caretaking" function.
Oh, but not so fast.
Back in 2009, two Wiley (Texas) police officers on bike patrol observed a car park on a dead end street behind a fast food restaurant. They watched as the passenger side door opened up. The officers claimed they could hear the passenger and driver talking - but they couldn't make out what they were saying.
The officers decided they had seen enough. It was time to go in for the kill. As they approached, the passenger, Ms. Alford, and the driver switched places. When the officers arrived they saw that the engine was running and the car was in gear. Ms. Alford began to pull away when one of the officers asked her if she would mind answering a couple of questions.
You can guess the rest. The officer smelled a strong odor of an alcoholic beverage and Ms. Alford admitted to drinking "four big beers." Needless to say, the officers testified that Ms. Alford failed their coordination exercises. When asked the basis of the stop, the officers said they believed Ms. Alford was in need of help.
The trial court denied Ms. Alford's motion to suppress on the grounds there was no legal basis for the stop. Oh, that nebulous community caretaking function.
On appeal, in Alford v. State, No. 05-10-00922-CR (Tex.App.--Dallas 2011), the Dallas appeals court found that there was, indeed, no legal basis for the stop. The court pointed out that in order to determine whether the officer's belief that a person needed help, it would weigh four factors:
In Alford, the court found that none of the factors indicated Ms. Alford needed any help from the officers. Ms. Alford did not appear to be in any distress. The car was parked behind a restaurant that was open. Ms. Alford was in the car with her sister. There was no indication that Ms. Alford was a danger to anyone at the time the officers decided to approach the car.
As a result, the court reversed Ms. Alford's conviction and sent the case back to Collin County to be disposed in a manner consistent with the court's rulings.
What happened to Ms. Alford was not an isolated incident. More and more motorists find themselves being detained without probable cause - and whenever the emperor finds himself naked before the mirror his fallback position is that he thought the motorist was in some sort of danger.
This time, it didn't work.
Oh, but not so fast.
Back in 2009, two Wiley (Texas) police officers on bike patrol observed a car park on a dead end street behind a fast food restaurant. They watched as the passenger side door opened up. The officers claimed they could hear the passenger and driver talking - but they couldn't make out what they were saying.
The officers decided they had seen enough. It was time to go in for the kill. As they approached, the passenger, Ms. Alford, and the driver switched places. When the officers arrived they saw that the engine was running and the car was in gear. Ms. Alford began to pull away when one of the officers asked her if she would mind answering a couple of questions.
You can guess the rest. The officer smelled a strong odor of an alcoholic beverage and Ms. Alford admitted to drinking "four big beers." Needless to say, the officers testified that Ms. Alford failed their coordination exercises. When asked the basis of the stop, the officers said they believed Ms. Alford was in need of help.
The trial court denied Ms. Alford's motion to suppress on the grounds there was no legal basis for the stop. Oh, that nebulous community caretaking function.
On appeal, in Alford v. State, No. 05-10-00922-CR (Tex.App.--Dallas 2011), the Dallas appeals court found that there was, indeed, no legal basis for the stop. The court pointed out that in order to determine whether the officer's belief that a person needed help, it would weigh four factors:
- the nature and level of the person's distress;
- the location of the person;
- whether the person was alone or had access to help; and
- to what extent the person was a danger to himself or herself.
In Alford, the court found that none of the factors indicated Ms. Alford needed any help from the officers. Ms. Alford did not appear to be in any distress. The car was parked behind a restaurant that was open. Ms. Alford was in the car with her sister. There was no indication that Ms. Alford was a danger to anyone at the time the officers decided to approach the car.
As a result, the court reversed Ms. Alford's conviction and sent the case back to Collin County to be disposed in a manner consistent with the court's rulings.
What happened to Ms. Alford was not an isolated incident. More and more motorists find themselves being detained without probable cause - and whenever the emperor finds himself naked before the mirror his fallback position is that he thought the motorist was in some sort of danger.
This time, it didn't work.
Tuesday, July 26, 2011
In Utah, no reasonable suspicion? No problem
In order to make a valid traffic stop in Texas, a law enforcement officer must either have probable cause to arrest or reasonable suspicion to believe criminal activity is afoot. As nebulous and logically bankrupt as reasonable suspicion is, the bottom line is an officer must point to a traffic violation, other illegal act or objective reasons to believe the motorist is breaking the law in order for the stop to be legal.
It is not enough that an officer had a good faith belief (whatever that is) that a motorist committed a traffic offense - if it wasn't a traffic offense, the stop - and all evidence gathered as a result of the stop - is no good.
In Utah, on the other hand, the state Supreme Court has thrown a lifeline to police officers who can't figure out whether a motorist has committed a traffic violation or not. In State v. Morris, 2011 UT 40 (No. 20090835) (Utah 2011), the court held that if an officer makes a stop and finds out he was in error he can approach the driver to let him know about the mistake -- and, if he develops new reasonable suspicion that criminal activity may be afoot, he may "respond accordingly."
A state trooper observed Mr. Vance Morris driving on a two-lane highway one night. Mr. Morris appeared to be "bumping" the fog line. The trooper, Travis Williams, turned on his video camera and began to follow Mr. Morris. When it appeared there was no license plate on the car, Trooper Williams initiated a traffic stop. As he approached the car he saw a temporary tag on the car.
Trooper Williams informed Mr. Morris that he was mistaken in pulling him over -- but then he smelled the (evil) odor of an alcoholic beverage on Mr. Morris' breath. And, as you can probably guess, Mr. Morris found himself in the backseat of Trooper Williams' patrol car charged with DWI and, here's the kicker, possession of a controlled substance (a search of the car turned up drugs and drug paraphernalia).
The trial court (and this should not be a surprise to anyone) denied Mr. Morris' motion to suppress on the grounds that even though the basis of the stop was questionable, it was perfectly reasonable for the officer to approach Mr. Morris and inform him of the mistake. The appeals court disagreed and ruled in Mr. Morris' favor on the grounds that there was no legal basis for the stop and that Trooper Williams no longer had reasonable suspicion once he spotted the valid temporary tag.
In its opinion, the court said:
That's right. The appeals court apparently was confused about the Fourth Amendment's prohibition of unreasonable search and seizures.
So, there you go. If you should find yourself driving along the highways and byways of Utah, be careful because the police don't even have to have a valid reason to stop you. And don't count on that pesky little Fourth Amendment to save your ass because, at least in the Beehive State, it doesn't mean what it says.
(H/T FourthAmendment.com)
It is not enough that an officer had a good faith belief (whatever that is) that a motorist committed a traffic offense - if it wasn't a traffic offense, the stop - and all evidence gathered as a result of the stop - is no good.
In Utah, on the other hand, the state Supreme Court has thrown a lifeline to police officers who can't figure out whether a motorist has committed a traffic violation or not. In State v. Morris, 2011 UT 40 (No. 20090835) (Utah 2011), the court held that if an officer makes a stop and finds out he was in error he can approach the driver to let him know about the mistake -- and, if he develops new reasonable suspicion that criminal activity may be afoot, he may "respond accordingly."
A state trooper observed Mr. Vance Morris driving on a two-lane highway one night. Mr. Morris appeared to be "bumping" the fog line. The trooper, Travis Williams, turned on his video camera and began to follow Mr. Morris. When it appeared there was no license plate on the car, Trooper Williams initiated a traffic stop. As he approached the car he saw a temporary tag on the car.
Trooper Williams informed Mr. Morris that he was mistaken in pulling him over -- but then he smelled the (evil) odor of an alcoholic beverage on Mr. Morris' breath. And, as you can probably guess, Mr. Morris found himself in the backseat of Trooper Williams' patrol car charged with DWI and, here's the kicker, possession of a controlled substance (a search of the car turned up drugs and drug paraphernalia).
The trial court (and this should not be a surprise to anyone) denied Mr. Morris' motion to suppress on the grounds that even though the basis of the stop was questionable, it was perfectly reasonable for the officer to approach Mr. Morris and inform him of the mistake. The appeals court disagreed and ruled in Mr. Morris' favor on the grounds that there was no legal basis for the stop and that Trooper Williams no longer had reasonable suspicion once he spotted the valid temporary tag.
In its opinion, the court said:
Although we appreciate the court of appeals’ effort to vigilantly protect the constitutional rights of our citizens, we also conclude that the court of appeals misapplied the Fourth Amendment’s command that searches and seizures be reasonable. As we discuss in more detail below, we first conclude that Trooper Williams’s stop was justified at its inception. Next, we conclude that, in light of the factual circumstances that followed,Trooper Williams’s further detention of Mr. Morris was also a reasonable seizure under the Fourth Amendment.
That's right. The appeals court apparently was confused about the Fourth Amendment's prohibition of unreasonable search and seizures.
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 court then twisted logic even further with this:
Under the Fourth Amendment, a police officer may stop a vehicle only if the officer has a particularized and objective basis for suspecting the driver or a passenger is engaged in criminal activity. Although to be lawful, reasonable suspicion must be based on “‘specific and articulable facts and rational inferences,’” “[a] police officer need not actually observe a violation” to make a stop. “Instead, ‘as long as an officer suspects that the driver is violating any one of the multitude of applicable traffic . . . regulations, the police officer may legally stop the vehicle.’” The fact that an officer mistakenly relies on objective facts that upon closer review suggest that the stop would not be justified will not automatically render the subsequent search unconstitutional. Indeed, “[a] factual belief that is mistaken, but held reasonably and in good faith, can provide reasonable suspicion for a traffic stop.”
So, there you go. If you should find yourself driving along the highways and byways of Utah, be careful because the police don't even have to have a valid reason to stop you. And don't count on that pesky little Fourth Amendment to save your ass because, at least in the Beehive State, it doesn't mean what it says.
(H/T FourthAmendment.com)
Thursday, July 21, 2011
Court holds that reasonable suspicion cannot be developed retroactively
Can the police develop reasonable suspicion to make a traffic stop after the fact? When put that way, the obvious answer is no. If reasonable suspicion is required to make a traffic stop, one either has it at the time of the stop or doesn't.
But, to the courts, it wasn't such an obvious answer. At least before the Texas Court of Criminal Appeals issued its ruling in Martinez v. State, Nos. PD-1238-10 and PD-1239-10 (2011).
Police in Del Rio, Texas were notified by an anonymous caller that someone was acting suspicious and had put two bikes in the back of a blue pickup. Officer Hurley spotted a pickup that looked blue and began following it. After following the truck for four blocks, and not seeing any traffic violation, Officer Hurley stopped the truck.
When he walked up to the truck, the officer noticed two bikes in the bed. Upon contacting the Mr. Martinez, Officer Hurley noted a strong odor of alcohol and glassy eyes. To no one's surprise, Mr. Martinez was arrested for driving while intoxicated. To make matters worse, Officer Hurley also found a usable amount of marijuana after the DWI arrest.
Mr. Martinez filed a motion to suppress the stop, arguing that there was insufficient basis to stop his truck since the caller was never identified. He also argued that Officer Hurley lacked reasonable suspicion to make the stop. The trial court denied his motion and Mr. Martinez pled guilty to both charges. The Court of Appeals upheld the trial court's ruling.
The Court of Criminal Appeals then ruled that the officer lacked reasonable suspicion to make the stop. While the caller was never identified, she did appear at the scene following the traffic stop. However, the basis of the stop must be determined by the facts at the time of the stop, not by what the officer learns after making the stop. In this case, the officer had a tip from an anonymous caller. He never observed a traffic violation. He didn't find the bikes in the truck until after he made the stop. But for the illegal stop, he never would have noted any signs of intoxication; and, he never would have discovered marijuana in the truck but for the DWI arrest. In other words, in order to effect a traffic stop, the police must have specific articulable facts indicating that criminal activity is afoot before making the traffic stop. Any reasonable suspicion developed after the stop cannot be used to justify the stop in the first place.
The Court of Criminal Appeals reversed the conviction and remanded the case for further proceedings.
But, to the courts, it wasn't such an obvious answer. At least before the Texas Court of Criminal Appeals issued its ruling in Martinez v. State, Nos. PD-1238-10 and PD-1239-10 (2011).
Police in Del Rio, Texas were notified by an anonymous caller that someone was acting suspicious and had put two bikes in the back of a blue pickup. Officer Hurley spotted a pickup that looked blue and began following it. After following the truck for four blocks, and not seeing any traffic violation, Officer Hurley stopped the truck.
When he walked up to the truck, the officer noticed two bikes in the bed. Upon contacting the Mr. Martinez, Officer Hurley noted a strong odor of alcohol and glassy eyes. To no one's surprise, Mr. Martinez was arrested for driving while intoxicated. To make matters worse, Officer Hurley also found a usable amount of marijuana after the DWI arrest.
Mr. Martinez filed a motion to suppress the stop, arguing that there was insufficient basis to stop his truck since the caller was never identified. He also argued that Officer Hurley lacked reasonable suspicion to make the stop. The trial court denied his motion and Mr. Martinez pled guilty to both charges. The Court of Appeals upheld the trial court's ruling.
The Court of Criminal Appeals then ruled that the officer lacked reasonable suspicion to make the stop. While the caller was never identified, she did appear at the scene following the traffic stop. However, the basis of the stop must be determined by the facts at the time of the stop, not by what the officer learns after making the stop. In this case, the officer had a tip from an anonymous caller. He never observed a traffic violation. He didn't find the bikes in the truck until after he made the stop. But for the illegal stop, he never would have noted any signs of intoxication; and, he never would have discovered marijuana in the truck but for the DWI arrest. In other words, in order to effect a traffic stop, the police must have specific articulable facts indicating that criminal activity is afoot before making the traffic stop. Any reasonable suspicion developed after the stop cannot be used to justify the stop in the first place.
The Court of Criminal Appeals reversed the conviction and remanded the case for further proceedings.
Wednesday, July 13, 2011
It's only coercive if I say it's coercive
co·erce
[koh-urs]–verb (used with object), -erced, -erc·ing.
1.
to compel by force, intimidation, or authority, especially without regard for individual desire or volition: They coercedhim into signing the document.
2.
to bring about through the use of force or other forms of compulsion; exact: to coerce obedience.
3.
to dominate or control, especially by exploiting fear, anxiety, etc.: The state is based on successfully coercing the individual.
Supposedly the idea behind implied consent is that when someone applies for a driver's license, he is giving his consent to provide a breath or blood sample upon demand should a law enforcement officer request one following an arrest for driving while intoxicated. But that same motorist has a choice when, and if, that moment actually arrives. A motorist is "rewarded" for blowing over a .08 by having his license suspended for a shorter time period than someone who decides he'd rather not blow into the little black box.
Consent must be given voluntarily by the motorist. The police are not allowed to coerce him into blowing. To prevent the appearance of coercion, officers are required to read a piece of paper with a warning from Section 724.015 of the Texas Transportation Code -- the so-called statutory warning. Should the officer fail to keep to the script he runs the risk of a judge throwing out a breath test result.
Of course what one person perceives as coercive may very well differ from what someone in law enforcement, for instance, might find coercive. The statutory warning informs the motorist that should he choose not to blow into the breath machine, that refusal might be used in a subsequent criminal prosecution. So much for innocent unless proven guilty, huh? And anyone who's ever tried a DWI has heard the prosecutor tell the jury that their client had the opportunity to prove his innocence but chose not to - because he knew he was guilty.
So much for lack of coercion.
Then we had the evolution of
But I digress...
The publicized threat of being strapped down and having a needle jabbed in one's arm just because Officer Bob smelled alcohol on your breath might be seen as having a coercive effect on motorists' decisions whether or not to blow in the black box. In fact, the Texas Municipal Courts Education Center told judges who attended a seminar that
"If a suspect consents to a blood test in the face of a threatened warrant, the voluntariness of the consent may be an issue."
And that's from an organization whose mission is to assist municipal court judges, court staff and prosecutors in
The Texas Legislature, however, doesn't view it the same way. In its neverending quest to put everyone in the state under court supervision, our brilliant lawmakers in Austin decided to amend the statutory warning provided to anyone arrested on suspicion of driving while intoxicated to include the threat of a forced blood draw as a means of coercing motorists to blow.
SB 1787, which goes into effect on September 1, 2011, adds the following language to the statutory warning:
If the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person.State Sen. Dan Patrick (R-Houston) authored a bill because he was worried that some judge might find the threat of a forced blood draw to be coercive. Apparently in Mr. Patrick's world, a coercive statement's not coercive if the government says it isn't. This comes from a man who claims to be a champion of limited government. Mr. Patrick's idea of limited government seems to be limited to how much the state can tax or spend but not how much the government can intrude when it comes to law enforcement.
Friday, July 1, 2011
Celebrating the Fourth (of July) by gutting the Fourth (Amendment)
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. -- Declaration of IndependenceWhat better way to celebrate the anniversary of one of the most important documents in American history than to institute a statewide No Refusal Weekend for the Fourth of July?
Anyone who is pulled over for suspected drunk driving will have to either submit to a breath test or have their blood drawn. Officials say it takes as little as 15 minutes to secure a warrant for a blood draw and five minutes after that to get the blood drawn.Fifteen minutes to eviscerate the rights of the accused. Just fifteen minutes to determine whether or not probable cause exists to open a vein. Just fifteen minutes to order an invasive procedure for an offense that is but one step removed from a traffic ticket.
We can celebrate the Fourth by pretending that our Fourth Amendment right to be left alone doesn't exist. We all know there's no such thing as an unreasonable seizure when a man wearing a badge smells alcohol on the breath of someone driving a car.
We can celebrate the Fourth by pretending that our Fifth Amendment rights to remain silent and not to incriminate ourselves doesn't exist. DWI is the only offense in which a person choosing to remain silent and not incriminate themselves is legally used against them.
We can celebrate the Fourth by pretending that the right to counsel under both the Fifth and Sixth Amendments doesn't exist. Heaven forbid a person accused of drunk driving be allowed to consult with an attorney before answering any questions or performing roadside coordination exercises.
However you choose to celebrate the Fourth, be careful, be safe and don't become a victim of the police state.
Tuesday, June 28, 2011
Anatomy of a traffic stop
What follows is the Twitter feed from Arizona Cardinals defensive lineman Darnell Dockett after he was stopped by police.
I don't know why the police always messing w/me I'm never gonna let them search my car with out a search warrant! No matter what!
Police sitting here waiting on back up cuz I told them YOU NOT SEARCHING MY CAR! PERIOD! & now I'm sitting here! Owell I aint got shit 2 do!
There R 3police cars and they are talking! I don't see A search warrant they won't see inside this escalade! I got all day hope they don't!
Police said "do you mind if we look around in your Vehicle?" I said I sure DO! He said "I'm gonna call back up" I said u wanna use my phone?
I think they (POLICE) going to get a search warrant cuz they sitting here looking like fools waiting on something!
These COPS really think I'm stupid they playing good cop bad cop! BOY STOOOOP! I'm not falling for that! NO SIR YOU WILL NOT LOOK IN MY CAR!
This cop just ask me how tall R u & where R U from! I'm bout to ask him can I go across the street to POPEYS while we sitting here waiting!
I been sitting here for a HOUR 1cop by the driver window, 2talking at the car! And the 1by the window being friendly! Like wtf?
I asked the cop why he pulled me over he said I was speeding I said BULLSHIT! But give me the ticket that's when he asked to search my car!
So you gonna lie and say I'm speeding then you wanna search my car! Get the F*ck ouutta here! Better go get a warrant *turns up radio*
OK so now I think they letting me Go cop just brought my DL's and registration! Yeah I'm bout to be out this MOFO!
No ticket and I didn't get punk by PO-PO today now I'm off to my 2nd work out! Police aint searchig my sh*t with no warrant "holla at me"!
I don't know the circumstances surrounding the stop and I don't care about the circumstances surrounding the stop. The police had a hunch. Maybe there was some justification behind and maybe it was because Mr. Dockett is a black man driving a nice car late at night.
Whatever it was it goes to show that when the police ask for consent to search a car it's because they know they don't have probable cause to search it. The police count on motorists being intimidated into consenting to the search - and that's what usually happens.
Mr. Dockett knew better. He knew he was under no obligation to allow the police to search the car absent a warrant (or his arrest). He stood his ground and nothing came of it. And since the police didn't even bother to issue him a citation for speeding - you have to wonder about the basis for the stop in the first place.
You know if the police hate it when someone videotapes them going about their business that it must be driving them crazy that Mr. Dockett live-tweeted the stop. Now the Twitter world knows that it's okay to say no to the police.
The more of a light we cast on this behavior the less likely we are to encounter it. But it takes someone willing to stand up and say no. Thank you, Mr. Dockett, for having the courage to do just that.
Enough is enough? Apparently not yet.
By now nothing should shock us when it comes to TSA and the willingness of the American public to allow their rights and dignity to be thrown in the trash like a used paper towel.
In Florida over the weekend, TSAthugs security personnel requested that a 95 year-old woman, confined to a wheelchair, remove her adult diaper. The woman, suffering from leukemia and weighing just a tad over 100 pounds was taken to a glassed-in area and subjected to a pat down by TSA thugs security personnel. Feeling something "suspicious" on the elderly woman's leg, TSA thugs security personnel took her to a private room and notified the woman's daughter that she would have to remove her diaper because it was soiled.
After taking off her mother's diaper, both the daughter and her mother were both asked to submit to pat downs -- which, of course, they did. But why?
Why was it so important to get on that plane that a grown woman would subject her mother to that level of humiliation? Why do people continue to play this game with the TSA? At what point will the American public take a stand and say that enough is enough?
It continues to amaze me that people just accept that this is the way that it is and don't question the reason behind the police state tactics at our nation's airports. It riles folks up to read about the child who wasgroped patted down by TSA thugs security personnel. It makes people mad when TSA thugs security personnel take away an object from a mentally retarded man. It makes our skin crawl when a 95 year-old woman is humiliated in the name of air travel.
But no one questions the reason for the complete lack of sense and respect our government shows for its citizens at airports.
Does it make you feel safer that you've kissed away your right to be left alone by the state? Does it make you feel safer that you've gladly handed over your dignity to a person wearing a TSA badge that isn't qualified to work for the police department?
We have become a nation of complainers. We like to sit on our couches or behind our desks and complain about the latest humiliation we were "forced" to endure because we didn't have the courage to take a stand and say enough is enough.
In Florida over the weekend, TSA
The TSA released a statement Sunday defending its agents' actions at the Northwest Florida Regional Airport.
"While every person and item must be screened before entering the secure boarding area, TSA works with passengers to resolve security alarms in a respectful and sensitive manner," the federal agency said. "We have reviewed the circumstances involving this screening and determined that our officers acted professionally and according to proper procedure."
After taking off her mother's diaper, both the daughter and her mother were both asked to submit to pat downs -- which, of course, they did. But why?
Jean Weber told CNN's Fredricka Whitfield on Sunday that the security officers may have been procedurally correct, but she still does not believe they were justified, especially given her mother's frail condition.
"If this is your procedure -- which I do understand -- I also feel that your procedure needs to be changed," she said.
Weber said the two were traveling June 18 from northwest Florida to Michigan, so her mother could move in with relatives before eventually going to an assisted living facility.
Why was it so important to get on that plane that a grown woman would subject her mother to that level of humiliation? Why do people continue to play this game with the TSA? At what point will the American public take a stand and say that enough is enough?
It continues to amaze me that people just accept that this is the way that it is and don't question the reason behind the police state tactics at our nation's airports. It riles folks up to read about the child who was
But no one questions the reason for the complete lack of sense and respect our government shows for its citizens at airports.
Does it make you feel safer that you've kissed away your right to be left alone by the state? Does it make you feel safer that you've gladly handed over your dignity to a person wearing a TSA badge that isn't qualified to work for the police department?
We have become a nation of complainers. We like to sit on our couches or behind our desks and complain about the latest humiliation we were "forced" to endure because we didn't have the courage to take a stand and say enough is enough.
Subscribe to:
Posts (Atom)