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Good news on the Constitutional front

by NearlyNormal Tue Apr 21st, 2009 at 01:52:03 PM EST

In the US system, the 4th amendment is the core protection against unreasonable search and seizure, like all constitutional law it is very dependent upon interpretations.  Over the course of the last 40 years, the law has swung away from protecting individual freedoms from unreasonable searches toward giving the officials license to introduce evidence that has been gained from those unreasonable searches.

 



The 4th amendment received a shot of life from the Supreme Court today.  In Belton (453 US 454), the rule was taken that once the police arrest someone in a car they have the right to search the vehicle under the theory that the suspect might grab a weapon from the vehicle, even though he was removed from the vehicle and handcuffed.  The Supremes now say that is not what they meant, that the law

authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.

There are exceptions, including the right to search for evidence of the crime the suspect is arrested for that might still be in the car, and inventory searches were undiscussed (on a quick reading), but this is a major change from the current state of the case law, and will require in California that many of the awful cases that our supreme's have decided are overturned.

Interestingly, Scalia, Souter, Thomas and Ginsburg signed on to Stevens written opinion and Alito, Roberts, Kennedy and Bryer (in part) dissented.  After a few decades in Criminal Law watching it steadily get worse with the war on drugs being the main enemy of the 4th amendment, there have been a couple of cases which Scalia has been involved with which have begun to swing back the idea that the 4th amendment still has some validity.

I've got to run into court-smiling, real quick, but here is a place to look: http://www.law.cornell.edu/...

This may be a bit obscure for many readers, I'll be back when I can to answer any questions.  This is probably the most dramatic improvement in 4th amendment jurisprudence in 20 years.

Steve

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More positive than my last essay on Capital Punishment, eh?

"I said, 'Wait a minute, Chester, You know I'm a peaceful man...'" Robbie Robertson
by NearlyNormal on Tue Apr 21st, 2009 at 01:56:42 PM EST
Good news, but ihe search pursuant to inventory is still a big issue.  I had this explained to me by one of L.A.s finest when I was still a young, naive school teacher.  I had been to a show featuring an acquaintance at the old Ashgrove on Melrose in L.A.  I had just bought a beat up old Olds from a recent arrival from New York and it still had New York plated.  I was giving three long-haired hippie friends a ride back to Santa Monica and was southbound on La Cienega when pulled over.

The officer's first question was: "You're pretty drunk, aren't you?"  Like a fool, I responded truthfully: "I've had two beers all evening, officer.  What makes you think I am drunk?" (I was poor and two beers was the minimum I was expected to buy, one for each set.  I had nursed them along.)  He then responded: "You were weaving down the street."  To which I responded truthfully, "I was following the lane markers exactly.  I saw you behind me." (The street was curvy as it approached the freeway.)

He then ordered us all out of the vehicle.  During our exit the glove box fell open due to a bad ketch and a 12" knife in a leather scabbard that I had found beside the road in Jalisco, Mexico the previous summer was visable.  The officer's partner reached in and grabbed the knife and scabbard and placed them on the top of the passenger compartment.  I protested: "That is not a dangerous weapon!  It is an anthropological curio I picked up beside the road in Mexico last summer.  It is in the car because I took my 8th grade students camping last weekend and I brought it along because it is functional."  (I had previously given him the name of my up-scale private school employer and my occupation.)

At this point one of my passengers decided to be helpful.  Pointing at the officer at the vehicle he  said "He can't do that!  Tell him he can't do that!"  So I said to the officer:  "I'm new to California, but I wouldn't think you could just pull someone over and search their vehicle without cause."  The officer responded: "Step over to the curb here and I will explain the situation."  I did and he said:  "I am within a hair's breath of arresting you on the charge of drunken driving.  If you want me to make that decision real fast, just object to the search."  

I didn't have any reason for him not to search the vehicle, other than principle, and I didn't want the hassle of a night in jail and a day's missed work, etc. so I let him search.  Fortunately, none of my passengers had left anything or had anything on them.  Later, someone explained that, had he arrested me, even if the charges were dropped, they would have impounded the car and searched it as a part of their inventory process and that the officer knew this.

My first real encounter with LAPD.

"It is not necessary to have hope in order to persevere."

by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Tue Apr 21st, 2009 at 05:34:54 PM EST
[ Parent ]
Actually, inventory searches are kind of fun in a suppression motion.  Generally they only note the contraband, so you start asking for the contents of the car that they were so concerned with safekeeping and they are often not listed, which makes it not an inventory search but rather a search for evidence with no exigency and thus requires a warrant.  Motion to suppress granted; motion to dismiss granted.  Course the defendent has already been to jail, hired a lawyer or gotten us appointed and its bee a pita at a minimum, but its good fun for the lawyer.

"I said, 'Wait a minute, Chester, You know I'm a peaceful man...'" Robbie Robertson
by NearlyNormal on Tue Apr 21st, 2009 at 05:47:46 PM EST
[ Parent ]
Good to know if I ever have occasion, time and reason to refuse a search.  What could a night in jail hurt?  Uh...

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Tue Apr 21st, 2009 at 07:13:20 PM EST
[ Parent ]
I may be wrong (no recent experience) but if possession of the knife were illegal, and it was in plain view of the officer, I think he had every legal right/duty to confiscate it and take whatever enforcement action/arrest necessary. If possession of the knife wasn't illegal, he probably shouldn't have taken it (I guess he could have claimed he was threatened - maybe a reasonable assumption, maybe not), but who cares whether he took it or not as long as it was returned to you following the stop. If you weren't arrested but he neglected to return it, I would have politely asked for it back.

Re: the search of your car. I would guess he may have just wanted to get the incident over with, but granting permission for him to search made it a legal one and opened you up to charges had he found anything incriminating. I doubt you could absolutely vouch for the innocence of anyone in the car other than yourself.  My strategy would been the same as yours, trying to avoid the search and arrest by being nice and respectful from the beginning. Sounds like it worked. Unfortunately, youthful drivers probably gather more than what may seem to be their fair share of police attention.  I can sympathize because I've been on both sides of the equation.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Wed Apr 22nd, 2009 at 05:29:37 PM EST
[ Parent ]
Actually, in the anxiety of the moment, I did't realize that they kept the knife.  It was a classic.  The scabbard just had a 1" leather tab on the front.  The old Mexico hand I had accompanied to Jalisco told me that the custom was to stick the scabbard inside the pants or inside a boot with the tab holding it in place.  He had told me that the design was common in Guerrero and over towards the Pacific and that it was often thrown short distances with an underhand shoveling motion.  It was indeed a lethal weapon.  

On reflection I decided that the cop wanted it for his own collection.  I may well have been unaware of trading it for being let go.  I did not know what the law was on knives in cars in those days in L.A.  Still don't.  The knife seemed somehow familiar to me in that I had (and have) one of similar size my father had got from a Hindu, reportedly in exchange for a haircut, (of what sort I don't know, as he was both a barber and a gambler on the side while in the army,) while his unit was in India prior to going in the first convoy over the Ledo Road through Burma into China during WW II.  That knife was undoubtedly of the sort that was used with such lethal effect in the communal violence that followed partition.

"It is not necessary to have hope in order to persevere."

by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Wed Apr 22nd, 2009 at 05:56:44 PM EST
[ Parent ]
This is a good and reasonable decision that shouldn't really negatively affect proper enforcement.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears
by Gringo (stargazing camel at aoldotcom) on Wed Apr 22nd, 2009 at 05:34:10 PM EST
[ Parent ]
Wow, I think I just fell down a rabbit hole.
by rifek on Tue Apr 21st, 2009 at 05:02:13 PM EST
And I don't remember any mushrooms, course yesterday was 4/20, so.....
But seriously, they even added in some language warning the cops not to play games with the timelines.

"I said, 'Wait a minute, Chester, You know I'm a peaceful man...'" Robbie Robertson
by NearlyNormal on Tue Apr 21st, 2009 at 05:22:03 PM EST
[ Parent ]
BTY, belated great diary!

"It is not necessary to have hope in order to persevere."
by ARGeezer (ARGeezer a in a circle eurotrib daught com) on Tue Apr 21st, 2009 at 07:14:45 PM EST


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