It's pretty demoralizing to me that there are 3 SCOTUS justices who think it's Constitutional to detain people without probable cause as long as it's not for very long.
As I think Justice Roberts once quipped, if you "briefly" hold someone without cause, you've "briefly" violated their Constitutional rights.
Demoralizing that 3 judges ignore obvious Constitutional rights, yes, but at least hopeful that twice that many disagree with them, and may apply the same reasoning to other equally obvious Constitutional rights.
The right to own & carry weapons, explicitly enumerated in the Constitution and held as a clear right by the Supreme Court, may benefit from this ruling (to the surprise & dismay of some). Laws delaying (often for days or months) purchase of weapons, or of obtaining licenses to own or carry (themselves subject to debate for other reasons), may be challenged in court with the same reasoning as "briefly" holding someone without cause, regarding anything more than a 5-minute background check for adjudicated felonies or mental illness. From this ruling, we might actually get to one that acknowledges "shall not be infringed" means what it says.
"The gestation period of some species of opossum being seven months, the right of the people to speak freely shall not be infringed."
(A silly example, but hopefully effective in showing the trick of language.)
It's pretty clear that the founding fathers thought civilians should be able to own deadly weapons. The purpose for this was defense not only of the state, but of the individual.
But even though I am a gun owner, I think the second amendment is extremely dated and should be ignored. So what if the founding fathers thought civilians should own guns? However intelligent and knowledgable they were, they have been superseded in all dimensions by two centuries of scientific and technological progress. If gun ownership decreases crime, OK. Tweak the laws to increase gun ownership. If it increases crime, OK. Do the opposite. If some middle-ground licensing thing works, do that. I find firearms fun to shoot, and I could see how they could be useful in self-defense, but what I really care about is the well-being of people. It's best to do whatever helps people, not what some centuries-old text says.
Fortunately, if the Talmud and D&D have taught us anything, it's that people can interpret any rule to match their existing view. In the long run, judges will rule in favor of public safety no matter the text of the constitution.
For what it's worth, the largest firearms lobbying group in the country, and generally its members, agreed with you up until a coup and marketing campaign in the late 1970s [1][2][3], if the "liberal media" is to be believed.
Oh, yes, the NRA has pulled a huge con job on a vast swath of the American public; in effect turning many of us into little lobbyists for the gun manufacturers.
Not to mention NRA not only didn't support DC v. Heller, but actively opposed it by filing a motion brief in support of the government. After all, without gun control to fear, who would buy NRA memberships?
Sometimes, an organization's need to survive outweighs or compromises their stated goals.
It's also worth noting in the debate that armed civilians aren't doing anything against actual government oppression. Police are militarised in the US now, and are sending SWAT teams against civilians with alarming regularity. That 'armed population guarding against government oppression' hasn't done a thing. I do heartily agree with the idea that we need to make our laws in the modern context, not in the Founding Fathers context - after all, it took 80 years to rid their republic of condoned industrialised slavery, and even then that was a byproduct of other issues.
As for your example sentence, you're saying that the two halves of the sentence are entirely unrelated, when it's clear given the subject matters in the constitutional phrases that they are related. Are there any other such examples from the same lawmakers where two halves of a sentence are supposedly utterly unrelated to each other?
Au contraire, civilians DO push back against oppression, and when they do the government gets the message and stays back for a long time. A couple decades ago, the government attempted to stage some high-profile violent raids (Waco; Ruby Ridge) over some very petty issues (alleged failure to pay a $200 tax; cut a gun barrel 1cm too short), and were immediately resisted with significant firepower; the attempts were spectacular failures, and while the intended targets mostly died in the conflict, the government refrained from such behavior again for nearly 15 years.
Time having passed, police/DHS are ramping up their domestic firepower and increasing their militarized responses to mundane crime. Criminals being (on the whole) the targets, little has been done in response. However, a similar violent act was nearly perpetrated on regular citizens at Brady Ranch last year, and there was a very tense armed standoff whereby the federal agents backed down, having been given the message again.
Alas, many confuse the lack of frequent armed resistance with no resistance. Resistance is rarely necessary, when the other side gets the reminder and acts according to it. There is, unfortunately, a growing tendency to dismiss that reminder again, and there is, unfortunately, a growing number of citizens AND government agents who are waiting for, if not looking for, another heavily armed violent encounter.
What you have just described is not "pushing back against oppression", it's "fighting like a dog when your back is to the wall". Laws aren't changing, SWAT teams and tanks are still proliferating amongst the police, and
It's a pity that your national dialogue around defence from oppression sits around "firearms" rather than "behaving ethically". So what if Waco and Ruby Ridge and Brady Ranch all happened - the US still has the highest number of prisoners per capita (by a factor of five over other western democracies - a rate that really took off around the time of Waco);police are still militarising and buying tanks, throwing in SWAT teams; making bigger and more encompassing three-letter-agencies. The edifice barely even stumbled; business as usual. If anything, the love of firearms and solving problems by force is encouraging the militarisation of police and heavy-handedness with the outcasts of society.
In the USA, it's axiomatic to not consider armed active resistance until your back is to the wall. Thing is, when that point comes one does not fight like a dog (unarmed), but with such firepower that the oppressor feels compelled to use SWAT teams and tanks ... and even then hesitates to do so.
Laws are changing, slowly. The next Presidential election should prove interesting in this regard.
Interestingly, those promoting defense from oppression via "firearms" are "behaving ethically" - licensed gun owners are among the most law-abiding & ethical citizens (popular quote: "an armed society is a polite society"). That Waco & Ruby Ridge & Brady Ranch all happened IS significant, because they were followed by a significant drop in violent raids, militarization notwithstanding.
Don't conflate resistance to oppression with incarceration rates, as the two categories practically do not overlap. The militarization likely has more to do with police desperately wanting to minimize their risk (statistics don't matter to a cop when he's the one at grave risk of being killed), and a criminal subculture which is he11-bent on violating clear laws (if criminals won't "go quietly", and won't stop engaging in unlawful behavior, that leaves the state little choice but resort to the natural foundation of law: force and incarceration).
This is such a throwaway slogan. Go check out the worst spots of Africa. Plenty of arms, not much politeness. Also, apart from not being true, it also encourages politeness for the wrong reason: fear of arms. Politeness should be due to respect of people, not fear of what they might do.
It's just as easy to say "an unarmed society is a polite society". There's not much difference between the US and Australia when it comes to politeness, and our society is unarmed. Japan is unarmed, and politeness is a keystone of their society. The British are unarmed, and their stereotype is one of unsufferable politeness.
Don't conflate resistance to oppression with incarceration rates, as the two categories practically do not overlap.
I wasn't conflating them, I was using it as yet another metric of US government oppression, which the armed population isn't stopping. Your last paragraph is also stating that the police are militarising due to the armed population, which is kind of my point - rather than prevent oppression, the armed population is actually doing more to increase it.
Also, I'm not sue what you mean by 'significant drop in violent raids', given that SWAT raids are skyrocketing, an order of magnitude more than they used to be. It's not really a victory if there's only a brief pause before business-as-usual continues.
"licensed gun owners are among the most law-abiding & ethical citizens"
Law-abiding? Ethical? I don't think there is any actual basis for your claim (except that you would like it to be so, maybe).
After all, Cliven Bundy--who I think you mentioned earlier--broke the law for decades. When the democratically-elected government came to enact its penalty for that law-breaking, a lot of white guys with guns came from all around the country to stop the justice system from doing its job.
Wow, thank you for the clearest response I've ever seen on the 2A puzzle!
Yes, exactly, you got it exactly right: whether the founding documents were ever useful, what governing principles do we want to live with now?
We obviously constrain people's agency in lots of ways that are non-controversial, like requiring that people drive on one side of the street or the other, or requiring that people not dump toxic waste in public parks. How do guns fit into that picture? How does speech, for that matter?
These are good and important questions to think deeply about, and I'm so glad you raised the issue so articulately.
My background, by the way: not a gun owner now, but I've used them enough to have a pretty good familiarity with them (and was once licensed to do armed security work, even). I'd fully endorse gun ownership restrictions, background checks, etc. I have never seen any rational argument against such laws; to me, it just goes to show how the NRA has done an amazing job conning a lot of people into becoming their own private gun lobby army, heh heh.
> whether the founding documents were ever useful, what
> governing principles do we want to live with now?
My understanding is that if you can get 2/3 of Congress to agree with whatever governing principles you want to live with now, you can amend the constitution. It's far from clear to me (a bleeding heart liberal) that 2/3 of the people, let alone 2/3 of Congress, want to see the 2nd Amendment rights re-amended.
Well, it needs 2/3 of Congress to propose it, and then 3/4 of the states to ratify it, so it's a bit harder than that, but your point stands. The constitution does indeed have provisions to change with the times, provided the nation agrees.
Stability is also important of course, but a reasonable balance seems to have been struck. The constitution does indeed evolve with the times, while still remaining more or less the same document, upholding the same basic ideals.
I think you'd find very little informed support for that claim about a reasonable balance. The US is on the very far end of rigidity in its political system among the western nations. Heh, no less a progressive extremist than Antonin Scalia himself said that, if he could amend the constitution, it would be to make it easier to amend.
chroma's insight was that the question we should be asking is not "what do these centuries-old documents tell us to do?" but "how do we want to live, in the world we have now?"
> In the long run, judges will rule in favor of public safety no matter the text of the constitution.
What about this ruling? Is this in favor "of public safety no matter the text of the constitution"? It sounds like the cop was trying to get meth off the streets, isn't that a matter "of public safety"?
> ..., but what I really care about is the well-being of people. It's best to do whatever helps people, not what some centuries-old text says.
The problem, as you point out, is that not everyone interprets "well-being of people" the same way. For some, it means largely sticking to this centuries-old text.
You might enjoy reading the pre-amble to the Bill of Rights. I could tell you, but you'll appreciate it more when you see it yourself. It gives context to the Bill of Rights that I think most people have forgotten.
It also makes it clear that no interpretation of that phrase could undermine the right.
TL;DR - a proper & updated rephrasing of the right & clause would be "The existence of a standing army notwithstanding, the right of the people to own and carry weapons shall not be infringed."
The typical response equates "the people" with "well regulated militia" by observing that "well regulated" meant equipped & trained, which all able-bodied males were expected to be (per the Militia Act of 1792, each was to buy standardized weapons & gear and participate in local training).
The typical dissenting response equates "well regulated militia" to "standing army", explaining the right as "of course active soldiers have a natural right to carry exactly and only what weapons their commanding officers order them to", which hardly constitutes a "right" requiring enumeration.
An alternate response I'm growing fond of enhances the "the preamble was explanatory but ultimately meaningless" argument others gave here. The Founding Fathers had a strong dislike for standing armies, but grudgingly realized that one would be required because an armed populace was inadequate to the task of advanced national security. Citizens being an uncooperative & cranky & poor bunch, there would be a need for a well-equipped, highly-trained, severely-disciplined military body ... a standing army, necessary to protect the states individually and the country as a whole; the citizenry should be able to do the job themselves, but we can't be sure without formal troops. Should a standing army be created, they'd be faced with arguments (like we're seeing right now) that there would be no need for an armed population because a standing army was ready to protect the country...and then the government could proceed to disarm the people at large, leaving a situation that the Founding Fathers had just fought a prolonged war to eliminate. Ergo, the right as enumerated is best understood as "The existence of a standing army notwithstanding, the right of the people to own and carry weapons shall not be infringed."
What do you want clarified? The meaning is very clear, and well-established by the courts. The prefatory clause it's a part of is a matter of some dispute and interpretation, but the meaning of "well-regulated militia" itself, is clear. (Which is to say, "well-regulated" here is not used in the same sense as it would be in the phrase "a well-regulated broadband industry", on the off chance that's what you're getting at.)
Alas, the Supreme Court and legislature at large have concluded that there should be "reasonable restrictions" whereby individuals can & should, for clear reasons ruled by a court, be prohibited from possessing weapons. While I generally agree with you, this is a reality we'll be hard-pressed to correct. Ergo, and in the interests of restoring the right to most people, we may have to settle for the disarming of people who, individually, due to particular conditions, as reviewed and declared by a court, and listed in public records (which may these days be checked "instantly"), declared individually unfit to be armed as they are a demonstrable threat to themselves and/or the community at large.
Pushing for "they are people [too]" will require a very different approach than where this subthread is going.
If a felon is too dangerous to allow to legally own a gun which can easily be illegally obtained, then they are too dangerous to be released among the general public.
As for the mentally ill, punishing the mentally ill by removing rights will only lead to them not seeking help. Since we assume people mentally competent til proven otherwise and since they will avoid seeking help, this results in an overall increase in danger.
Also, if a poll fee is wrong because it limits a right, why isn't the same true for other fees such as that needed to register a gun?
I'd like to see some sort of "Prove that you can shoot what you're aiming at, store a firearm safely, and do basic maintenance" vetting process for guns. Right now it's about where you live, what country were you born in, have you ever been arrested... all things that have nothing to do with the physics and safety of firearms.
I mean, we already do this with cars.
(Incidentally, this would disqualify me - I can't hit the skybox in Team Fortress 2, never mind real weapons)
Alas, such "prove basic competence" requirements have been repeatedly abused - much akin to the unwarranted delay which this thread is about - to inflict unwarranted delays and other hurdles to gun ownership.
Guns are not complex. Basic operations & maintenance can be taught in a few minutes by the seller. There are just 4 basic safety rules. Pull the trigger, and whatever it's pointing at is destroyed - that's kinda the whole point of a gun. Having hundreds of hours of training, I assure you basic vetting should take no more than 30 minutes. Alas, vetting is often twisted into weeks of delays, hours of obligatory boredom, tens or hundreds of dollars in direct (and more indirect) costs, and rarely actual shooting - all designed to delay exercise of that right. This is quite a rights problem when someone NEEDS one immediately, say to prepare for a "I'm gonna kill you tonight bitch" stalker.
BTW: methinks "driving" would be an enumerated right had the Founding Fathers ever conceived of the notion of making vehicular travel a "licensed privilege". The loudest argument against the Bill Of Rights was precisely that rights not enumerated would be construed as not being rights; prime example: driving.
I guess, but "hit this target", "demonstrate operating a safety, and bring a picture of your gun safe", or "show us how you clean your gun" are things that can be done quickly and can be measured objectively - it wouldn't be like those racist literacy tests for voting.
You'd still get the occasional crazy or evil person jumping through it, but at least you'd avoid idiots who shoot themselves in the nuts because they walk around with a loaded pistol carried in the seam of their trousers.
>it wouldn't be like those racist literacy tests for voting.
A modern day test for voting would also be different, but they are still used as justification to ban any such test. As long as the potential to abuse a test/restriction is reason to ban it, all restrictions should be banned equally.
Last I checked driving is a right. The whole licenses bit is just for driving on public roads (granted, that is the reason 99% driving occurs). It is the difference between owning a gun and taking that gun wherever I want.
I've always wondered: does the NRA (or a majority of its supporters) believe that Americans have the right to buy a surface to air heat seeking missile and then hang around with it under the departure path of a major airport? If so, then they are nuts. If not, then they support an infringement of the right to keep and bear arms.
I feel similarly about potential AG Loretta Lynch: she has no problem with civil asset forfeiture. To me that's even more unconstitutional to being held temporarily because it deprives a person of property potentially permenantly desire that person never having been convicted (or sometimes even having never been charged) with a crime.
I disagree. That's not the problem. The issue here is not the detention, it's the dog sniff. Why didn't the cop just ask in the beginning if he minded if he did the dog sniff? Why can't a cop just call in the dog squad while he lingers going through the paperwork of a regular traffic stop? That's what is going to happen here. He's not detaining, he's just finishing up the traffic stop.
what's demoralizing here is the war on drugs is getting us nowhere except rampant crime, huge homicide rates, and over crowded prisons full of minorities.
Because the standard is that the detention can last as long as reasonably required by the mission of completing a traffic stop. An officer who "dilly dallies" fails to meet that reasonableness standard, and will have their evidence suppressed.
Only for the noobs that pay others to play for them.
Could you imagine saying "I could never play WoW. I'll just pay someone $250/hour to play for me and hope for the best."? That's what happens every day in the legal system.
If you become a good enough player, you can win by yourself.
Not really. You might be good enough to go 1v1, but going up against an entire legal department will still crush you. Also, becoming 'good enough' isn't an option for everyone for all the same reasons that pulling yourself up by your bootstraps doesn't always work.
Legal departments still have to compress everything down to one process. Only one will speak as the representative of their client. But they'll all take turns reassuring their client that it was the judge's fault that you won.
they may have a larger legal library, but if it's any harder to take on a full department, I haven't noticed.
If everyone who opposed the War on Drugs had instead of voting for it's Architect in the last two elections, or the other guy, had actually voted for either the Green Party or Libertarian Party candidates, things would be very different in this country.
Even if both the Greens and Libertarians still lost, the Democrats and Republicans would have been shocked out of complacency and rushing to end the war on drugs.
The problem is, everyone's voting for evil because they fear the other evil is greater.... yet there were two "Good" candidates running!
Vote for Rand Paul in the Republicican primary next year. Even though he's currently base-pandering to some extent (which is necessary to win the Republican nomination,) he's the only candidate with a chance of winning (i.e. Rep or Dem) that has called for an end to NSA domestic surveillance, drug decriminalization as well as the end of criminal sentencing that disproportionately affects the poor. Paul is the closest thing to a libertarian candidate that actually could win a U.S. Presidential election. A vote for Greens or Libertarians is a wasted vote. Nobody cares about 5% of the vote that's done in protest. Ross Perot was the closest thing to a third party win in modern history and he barely got 20% of the vote.
Look at Rand Paul's positions carefully; don't let the right (or left) media distort his fundamental positions and I would bet that many of you guys would be pleasantly surprised; especially when compared to Hilary Clinton's positions, both stated as well as demonstrated during her time in the U.S. senate and as Secstate.
Absolutely. It's voters' own faults. Also non-voters. So nearly 100% of eligible voters in America are to blame for whatever they don't like about the government.
Did you read the opinion? It doesn't allow what you've suggested. Extending the stop is not allowable whether he calls at the beginning of the stop or at the end.
>After Struble attended to everything relating to the stop, including, inter alia, checking the driver’s licenses of Rodriguez and his passenger and issuing a warning for the traffic offense, he asked Rodriguez for permission to walk his dog around the vehicle. When Rodriguez refused, Struble detained him until a second officer arrived. Struble then retrieved his dog, who alerted to the presence of drugs in the vehicle. The ensuing search revealed methamphetamine. Seven or eight minutes elapsed from the time Struble issued the written warning until the dog alerted.
So, the cop did ask in the beginning. When consent was denied the officer delayed.
Before you tell your friends that Jay-Z has only 98 problems now: Rodriguez v. US doesn't say a dog sniff can't be part of a traffic stop.
Alito mentioned in a separate dissent that - as a result of this ruling - he expects officers to change the sequence the activities involved in a traffic stop so that the license check and citation are not completed until a dog sniff is done. This ruling may be a bit of a moot point, except in cases where officers don't follow the proscribed sequence of events.
Read the opinion carefully, it explicitly says that the order of events is not justification enough. You are right in saying that this doesn't prohibit dog sniffs in all traffic stops. Period. However, you are wrong that stating that a dog sniff can be justified by simple ordering, see page 8:
>>The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, as JUSTICE ALITO supposes, post, at 2–4, but whether conducting the sniff “prolongs”—i.e., adds time to—“the stop,” supra, at 6.
and page 7:
>>a dog sniff, unlike the routine measures just mentioned, is not an ordinary incident of a traffic stop
SCOTUS is in fact saying that a dog sniff must be supported by what they call "individualized suspicion".
>>a dog sniff, unlike the routine measures just mentioned, is not an ordinary incident of a traffic stop
Alito's dissent states that a preliminary dog sniff will become an ordinary incident as a result of this ruling. It will be the new standard procedure for K-9 officers who initiate traffic stops. A future Officer Struble will simply get the dog out first for everyone he stops, post Rodriguez and a bit of officer training.
Officers that don't have a dog in the back will still have to establish reasonable suspicion to call in a K-9 sniff, just as they did before the ruling. So I can't see this ruling having an impact for longer than it takes to re-train officers.
> If it's an ordinary incident of a K-9 traffic stop, it's not prolonging the stop.
Its still a search not reasonably related to the justification of the stop, which would seem to make it unreasonable as an ordinary procedure. Sure, Scalia might vote to uphold it, but if Scalia's view was controlling he wouldn't need to.
The Court has held that dog sniffs are not searches; they only reveal whether contraband is present. Unlike wiretaps, physical searches of houses, etc. there's no privacy concern.
The issue here was that everything necessary to complete the traffic stop was finished, and by conducting an additional dog sniff (or doing anything else, really), the officer did something out of the ordinary to prolong the stop.
The Court has held that dog sniffs are not searches; they only reveal whether contraband is present. Unlike wiretaps, physical searches of houses, etc. there's no privacy concern.
If dogs alert based on officer cues as often as they do for illicit substances, then once the science makes its way into the legal consciousness this ruling will have to change. Note: I couldn't find the right search terms to get a good reference, only a prior mention: https://news.ycombinator.com/item?id=7180985
Downvoter: you probably disagree with the Court's interpretation, and personally, I'm with you. Dog sniffs should in theory have nothing to do with traffic stops, because the point is something completely different - to find drugs and weapons.
The way the Court historically treats the dog sniff is unique - it's not a classic search of possessions or property, because the only thing it reveals about them is whether or not they're contraband. Officers can freely perform a dog sniff during a Terry/motor stop with no additional requirement. The dog sniff does not require probable cause or even reasonable suspicion - in fact, it is frequently used to help establish them.
Sure, we might not like it, but that's the way the law is currently read.
Now they will simply add an extra officer. As long as he conducts the search while the other officer does traffic related things, I don't see how this would prevent a dog sniff search.
That's my reading too. But before we get too mechanistic about what's going to happen: no police department can afford to put two officers and a drug dog in every traffic patrol car. Police departments will be able to adapt so that the patrols that already had drug dogs will often (but not always) be able to use them. What they won't be able to do is ensure that any stop can be converted on a whim to a drug search.
To do that, you'd have to know in advance which officers were going to be making traffic stops in which they would want an excuse to make an otherwise unconstitutional excuse so you could preposition K9 units to assist them, or you'd have to have every patrol car have two officers and a dog. Either of these is impractical.
Arguably, Jay-Z's point was that when he had 99 problems, the K-9 was not one! There's a good discussion of this in Mason's wonderful dissection of 99 Problems [1]. It's on PDF page 16, or section M. (I was actually kind of surprised at this ruling, because I thought this was pretty well settled law.)
Nice. Mason gives a pretty good explanation of the legal differences between a K-9 officer already on the scene and the "excessive prelongation of the search" involved in calling for one.
> Dog sniffs are “sui generis,” the Court has held—they’re unique in that they don’t reveal any information about the contents of the object sniffed except the presence of contraband, as to which you have no privacy right. Thus, if the police have a dog ready to sniff your car when they pull you over for a traffic violation, you have no basis for objecting to the sniff. And, of course, if the dog does alert to the car, that is probable cause, so the police can then search the whole car. That’s what the officer wanted to do with Jay-Z, but the K-9 unit wasn’t there when he was pulled over, and was late arriving.
That's a vary dangerous line of thinking as dog's are far from 100% accurate.* How about I setup chemical sniffers in the middle of NY subway station and detain anyone that set's them off?
* Actual statistics are rather hard to come by in large part because from a cops standpoint a false positive is not that big a deal.
I was in an Amtrak station once and observed a DHS officer with a dog. While the officer was occupied talking to someone a person stood by them for a while, walked past and came back again, then walked away; all behind the officer where they wouldn't have been seen.
The officer finished with what they were doing and started to walk away and the person returned. Shortly after the person entered the line of sight of the officer the dog, who was constantly looking at the officer's face, 'triggered'-- wagging its tail and moving excitedly towards the person; whom the officer immediately detained.
When the crazy door to door dog searches case was before the supreme court, I took some time to read a bit about the subject; there is virtually no structural protection or really any review that prevents the dogs from just being a laundering mechanism for their handlers (perhaps unconscious) suggestions. Though they do have true positives to the extent their accuracy is characterized at all, they're not very reliable, and very little is done to analyze or control for false positives (and many officers that handle them seem to believe there are basically no real false positives-- that instead false triggers must be on 'residue'), though there seems to be no scientific basis for that belief. (Though there easily could be; a reasonable practice would be to log and track all triggers by each dog and the results in order to monitor their performance and establish their their level of both type-1 and type-2 errors).
Unfortunately, the courts are continuing to allow wide leeway for something that appears to be almost pseudo-science-- ascribing near magical properties to the dogs-- presumably because we like the result and it sounds reasonable; evidence be damned.
"The Clever Hans Effect has also been observed in drug sniffing dogs. A study at University of California Davis revealed that cues can be telegraphed by the handler to the dogs, resulting in false positives."
Hello, friend. In English, we don't use apostrophes before the final S in plural nouns, or before the final S in verbs. "Dogs" and "sets" are correct. The apostrophe represents either ownership or omitted letters, neither of which are the case here.
The thing is, most cops aren't driving around with dogs. The way I read this ruling, in the absence of probable cause, the only way for a dog sniff to legally occur is if you are pulled over by a car that happens to have 2 officers and a dog in the car. One begins the ticket writing process, while the other simultaneously runs the dog around the car. This would cause no delay in the stop, and thus wouldn't violate this ruling.
So Jay-Z only has 99 problems when he is pulled over by a K-9 patrol car with 2 cops in it. K-9 patrols are almost always clearly marked, so the moral is...drive carefully when you encounter one.
And that's a problem. Because trained drug dogs are trivially (even unconsciously) manipulated into falsifying probable cause using cues, where they are even trained in genuine detection in the first place. A complete lack of negative controls in "training" is apparently not uncommon - in which case they're not even really trying to hold up the pretense that accurate detection is the goal.
Which implies the dog is not currently with the officer and he is going to detain Jay-Z until the dog gets there. So this would actually cut the number of problems Jay-Z has down to 98.
Jay-Z says he has 99 problems but a bitch "ain't" one. So regardless he'll still have 99 problems. Additionally he says this in regards to the K9 coming, so this ruling wouldn't affect him either way.
"This ruling may be a bit of a moot point, except in cases where officers don't follow the proscribed sequence of events."
The ruling explicitly disallows even a de minimus stop, for however brief the period, and not as a matter of timeliness, but as a matter of lacking cause.
Now, if a cop wants to sniff your car with a dog, they're going to have to fabricate a reason of their very own, y'know, like "I thought I smelled marijuana" or "the subject's eyes suggested intoxication".
Sometimes police will threaten to summon the K9 if you don't consent to a search. [1]
If extending a stop for dog sniffs is now unconstitutional, does that mean any officer using this tactic was making an illegal threat, and thus any search thereafter must be thrown out as coercive?
[1] At least, that's how the ACLU videos portray it; don't know how common this really is.
Realistically a police officer in the US does not have to worry about such "illegal threats". Manipulating people into letting them fish for evidence is a pretty standard part of the job. Most likely a judge isn't going to throw out a search except when there is an egregious error on LE's part.
E.g. if the suspect clearly stated "I do not consent to any searches. Am I being detained? If I am not being detained then I want to leave" and an officer proceeded to search anyway or detained the person, it would probably get thrown out, assuming there was video/audio evidence. If not, it's the cop's word against the defendant's (I'll let you guess whose the judge will believe).
But if the cop lies and says you have to wait for a K9 unit, and you believe him without asking if you're being detained, anything that dog finds is likely going to be fair game just as if you were bullied into consenting to a search (a friend of mine once refused consent to a vehicle search and was then told by the officer that such a refusal constituted probable cause, so he relented out of fear).
Keep in mind that this is all without probable cause. If they have probable cause, they can detain you and make you wait for a dog. With the Rodriguez case specifically, there was "erratic driving" which is likely enough cause for most judges.
What are you basing all of this off of? Are you an attorney? Or just articles you've read?
Cases absolutely do get thrown out all the time because of searches which occur subsequent to a detention without probable cause. I just saw it happen last week.
Around here when you ask your attorney about the police they say something like "I know those guys, they're good guys." My lawyer didn't bat an eye when I described an illegal search.
That would work also, but the thing is, even if they never summoned the K9, they are threatening to, and the law distinguishes between the police making legal vs. illegal threats.
That is, if the threaten to run your license plate, that's fine because it's legal (even if it would find something bad). But if they threaten to ram your car or take your kids, then any consent you gave would be (IIRC) inadmissible as being under duress.
This ruling would suggest that the K9 threat falls under the latter.
Call their bluff with "am I free to go?" Otherwise they'll use all kinds of squishy terms to persuade you to stay for the search when you don't have to. Recording it, of course, would be vital. IANAL, YMMV.
No, however if this happens to you, you should immediately ask if you are being detained and if you are free to go. You should be permitted to leave before any K9 arrives.
This articulation that the tolerable extent of a stop (or any other investigation) 'is limited to the [personal] seizure's mission' is an excellent articulation of principle that might have a bearing on many other cases.
See for example this one - I have no idea whether this is appeallable procedurally (given the time that has elapsed since the conviction and so on) but the principle has troubled me ever since I read about it 5 years ago: http://www.alternet.org/story/146064/loud_sex_enough_for_cop...
Here a police officer who reasonably suspected a rape or some similarly violent crime based on reports of loud screaming visited a home. Defendant explained that the screaming took place in the course of enthusiastic sexual activity and Defendant's girlfriend corroborated this explanation. The police officer nevertheless requested permission to search, which was granted. During the search, marijuana was discovered and defendant was arrested for that.
To my mind the admissibility of evidence found during a search should have been limited to the original purpose; while it would not be entirely unreasonable to confiscate contraband found during a search, but it's not reasonable to prosecute the guy on that basis.
Where it gets tricky is prioritizing the things you prosecute. To see why, turn it around - suppose the police officer knocked on the door to investigate an allegation of drug possession or trafficking, but in the course of the investigation discovered the perpetration of a rape or murder. We would not want the perpetrator of such a crime to get away with it just because the police officer was unaware of it during an initial legitimate investigation and stumbled across the evidence by accident.
"To my mind the admissibility of evidence found during a search should have been limited to the original purpose; while it would not be entirely unreasonable to confiscate contraband found during a search, but it's not reasonable to prosecute the guy on that basis.
"
Sorry, but if a person who owned the place consented, the end result is always admissible.
Period.
If they didn't consent, it would be different.
I can't see why you think this reasoning would ever apply here.
I didn't make it clear in my original comment (but see the other one in this thread) that I'm making a normative rather than a positive argument.
I think the basis of consent ought to involve limitations of scope, such that discovery of a minor crime during the fruitless investigation of a major one should be treated differently. We want people to be cooperative with the police so as to minimize the incidence of violent crimes like the one the state troopers originally arrived to investigate. It's understandable that a neighbor got worried and called 911 (although we'll never know if the neighbor was genuinely worried or just irritated by the sexy sex noise). It's absolutely understandable that police would want to verify that no violence was going on after receiving such a report, even with the reasonable alternative explanation of sexual activity.
It's much harder to argue that McGacken's 10 year prison sentence has made society any better off. The cost of trying and imprisoning him may well exceed the social cost of his production (and presumable sale) of marijuana, but they have definitely reduced the incentive of people to cooperate with police investigating other crimes. To me this is a prime example of how 'the life of the law has not been logic, [but] experience' - the law has been consistently applied, but the result seems extremely unfair and may even have had negative economic utility.
There are some important differences between the case that you cite and this case.
Specifically, in this case the officer said that he had no reasonable suspicion that another crime occurred, and the dog sniffing was not part of the exception for "officer safety".
In the case you cited, the officers had an objective "reasonable suspicion" that a crime occurred (though obviously the accused in the case suggested it was not objectively reasonable, the court disagreed). Then during an investigation of the house, both for evidence of the crime in question, and to check the area for officer safety, the marijuana was found.
If evidence of a crime if found while investigating a different crime (where the reasonable suspicion is met) or where it falls under the exception for "officer safety", then it's fair game.
This decision doesn't change that standard, or even touch it since reasonable suspicion, and officer safety were not relevant to this case, and were relevant to the cited case.
So on the surface, they may appear similar, but hit different points of the law. On the flip side, had evidence of the meth been visible in this case, or the officer had any other reasonable suspicion of a crime, then this case would have likely been decided differently.
Absolutely, but I think this ruling narrows the distance between these different areas of the law.
I agree that currently it is fair game for an unsuspected crime to be prosecutable in the course of a legitimate search for another (and gave an example of why that could be a good thing), but I still think the original case represents a glaring failure of law. The defendant in this case allowed the officer to enter in good faith, so that the officer could reassure himself that no crime of violence had taken place and that the defendant's explanation of loud sexual activity was indeed truthful. Notwithstanding the contraband nature of marijuana, this good faith invitation should IMHO have been a massive mitigatory factor. The qualitative difference between the suspected and the actual crime are so great as to shock my conscience - not only are murder or rape considered more severe as evidenced by the heavier sentences they would attract, but they're also crimes of violence, and crimes involving a victim, whereas the harm that results from marijuana cultivation is proximate (at best) and to the extent that it even exists, is diffuse because the impact is societal. The fact that McGacken was sent to prison for 10 years Makes me want to throw up every time I think about it, especially because he was so cooperative with the investigation.
I'm speaking here of moral rather than legal principle, ie I'm making a purely normative argument. On a technical level I agree with you completely, and I have yet to bridge the gap between moral and legal principle to my own satisfaction.
The question of whether the officer had reasonable suspicion here seems to be in dispute. The lower courts found there was no reasonable suspicion, and the majority assumed that in their response.
Alito and Thomas' dissents cite some fairly compelling evidence that the officer did have reasonable suspicion: the vehicle occupants looked nervous, the officer smelled the overwhelming scent of air freshener (often used to mask drugs), and their story didn't make much sense.
The dissents are a really good read: I'm against the drug war full stop but had to admit that within our current legal framework, this decision doesn't make much sense.
>Alito and Thomas' dissents cite some fairly compelling evidence that the officer did have reasonable suspicion: the vehicle occupants looked nervous, the officer smelled the overwhelming scent of air freshener (often used to mask drugs), and their story didn't make much sense.
when i was stopped by police (2 times during 15 years in US - for non-attached sticker and for allegedly "not obeying traffic control device") i was so nervous that my speech was pretty slurred and hands were shaking even like 10 minutes after the encounter, my story at least in the second case hardly made any sense - was driving home after hiking for several hours in the hills during July heatwave weekend and wasn't sure what sign the police was talking about... I guess i was saved by not-using air-freshener in my car - i guess nobody uses the smell of extremely sweaty dusty 40 year old male for masking the drugs. Thanks, God!
Yeah, this happened to me around a decade ago - same reason for stop, actually, tag holder was busted, and ended up pulled over at 2AM. Nervous voice, endorphin shakes, couldn't even figure out which bit of paper was the registration at first. Nothing to actually hide, just fear.
Maybe having a crippling phobia of police stops is counterproductive, but it seems entirely warranted on the basis of what they're allowed and instructed to do. Spiders, snakes, public speaking, and flying are a hell of a lot safer than interacting with a police officer (one you're not related to) in any capacity at this stage of their militarization. And that's if your skin is the right color.
"As Struble later testified, at that
point, Rodriguez and Pollman “had all their documents
back and a copy of the written warning. I got all the
reason[s] for the stop out of the way[,] . . . took care of all the business".
Struble asked
for permission to walk his dog around Rodriguez’s vehicle.
Rodriguez said no. Struble then instructed Rodriguez to
turn off the ignition, exit the vehicle, and stand in front of
the patrol car to wait for the second officer.
If the officer had reasonable suspicion to do a dog sniff, then he would not have needed to ask for permission. And the courts have generally concluded that refusing a voluntary search isn't evidence that a crime has been committed.
So the conclusion that the dog search was based on a reasonable suspicion is not backed up by the officer's testimony, or by the officers actions.
> If the officer had reasonable suspicion to do a dog sniff, then he would not have needed to ask for permission.
An officer may seek permission for a search that he doesn't require permission; if nothing else, consent secures the evidence produced by a search from exclusion by a court that disagrees with the officer's own view of whether he had the requisite basis for making the search.
That's certainly true. However, that's only part of the equation, as the courts generally look at the totality of the circumstances, which include the officer's testimony (as I mentioned above)
See page 9 of the ruling: the Court did not rule on reasonable suspicion in this case, and Ginsberg tells it like it is regarding the dissenters' focus.
IANAL, but I think the gov't might be able to appeal right back up to SCOTUS on that issue if they think they can win, and it sounds like they could.
"Officer safety" is one of those things that can balloon out though.
What if the officer doesn't feel safe until everyone is handcuffed in a corner and all the dogs are dead? (I'm exaggerating about the people, but sadly, not about the dogs).
Good; now we need to extend this to TSA overreach. They are (ostensibly) there to prevent weapons from making it onto airplanes, not to investigate large sums of cash or bust people for narcotics possession: http://www.washingtontimes.com/news/2009/nov/11/rules-change...
This is great news, because other than DUI check points or being stopped by an officer with a dog in their patrol-car (which is just bad luck), I don't see that the police have a way around this one. I don't have any data, but I read in The New Jim Crow (good book, fyi) that this procedure accounts for an incredible amount of drug arrests. Good on ya, SCOTUS.
> How is it good that it is now harder to arrest for possession?
It would be easier to arrest for possession if searches, seizures, and arrests didn't require probable cause, and police could just arrest anyone, anywhere for any reason or none at all -- and search anything anywhere without consent for any reason or none at all, and use any evidence so obtained in prosecution.
Much of the Bill of Rights -- and much of the concept of individual rights against government underlying and preceding it -- is based on the belief that making it easier for the government to arrest and prosecute people even for things that everyone agrees are bad is often less of a benefit than the powers granted to government in order to achieve that are a harm.
So that's at least one school of thought on how this could be good even though it makes it harder to arrest for possession, even if one things that arrests for possession (where actual possession occurs) are a good thing.
Phrased this way makes sense. The parent comment sounded more like "drugs should be legal" than it did about individual rights.
And maybe they should be legal, I'm not sure what would help society more so I don't particularly have a stance either way.
Unfortunately those who think they should be downvoted this question. I guess they'd rather not argue their opinion and just hide any comment that questions their opinion.
Eugenics would help society a ton but it's obviously horrible from a moral standpoint. We don't live in a utilitarian society, drugs being legal should have nothing to do with how much they help society.
It has been proven in multiple studies that police dogs can be manipulated by their handlers, either by triggering them consciously or just by the fact that the dog picks up on the cop's body language.
I'll say it. I do not think that people should be arrested for possession of drugs, and I think that anything which makes it harder to arrest for possession of drugs is a good thing.
Why is this down voted? I don't agree with the opinion he seemingly expresses with his questions but they are legitimate questions from the other side that we can address without suppressing debate.
It wasn't really a legitimate question though. Even if it was murder we were discussing we'd want it to be harder for the police to falsify evidence and force unreasonable searches.
Downvoted for a legitimate question on why this is a good thing... Awesome unbiased community we have here. Seems to me it would of been more helpful to upvote and state why this is a good thing rather than try to brush any common objections under the rug.
Turning down an optional search of your persons or belongings does not constitute reasonable suspicion. I wish the courts would have sent a stronger message to this point. Clearly Officer Struble interpreted mr. Rodriguez decline as a reason to be suspicious of him.
Always say no. Always decline. This needs to be come the default/norm. Read about how inaccurate field substance tests are here[0]. People go to jail for this stuff even though they are law-abiding citizens who actually _didn't_ have anything to hide.
I fail to see how this matters. As it stands it's perfectly legal to lie to you about the consequences of not consenting to a search, and even outright cold blooded murder on a police officer's part is extremely difficult to seek justice for.
It is a tiny step in the right direction though, hopefully followed by more.
> The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop. [p. 3]
While the K-9 may not be possible for most departments, I know a few departments in Virginia started requiring all units to have a minimum of two officers because gas prices were too high to send a second car every time they needed a second officer on the scene. Of course, the San Diego County Sheriff's Department can't seem to shut off the engine, park legally, or fit more than one officer in an SUV.
The issue at hand isn't drug legality, it's delayed exercise of rights. There are other enumerated & implied rights which are equally trampled on by undue delays: right to assembly & free speech, delayed by requiring slowly-approved public assembly permits; right to keep & bear arms, delayed by long background checks & permit/license approvals (days or months when such information could be processed in seconds); right to speedy trial, often delayed for years; etc.
The opposition did a terrible job of defending dog sniffs during the oral arguments. They could not articulate a reasonable rule for when they should be allowed (except that they were ok until the ticket was written).
The justices repeatedly presented hypotheticals, but the guy just didn't get it.
Isn't it strange that its normal and "constitutional" for a unrelated dog sniffing to occur "during" (before the ticket is given) a traffic stop but not after. What allows to to be legal during but not after? They cited safety reasons, but I don't understand how searching for unrelated contraband increases the safety of the officer in any way.
Allowing a dog sniff to be reasonable suspicion is what is strange. But unfortunately it is. If you are stopped, such that the police dog can sniff your car, then they can sniff your car. But the cops can't stop you just to let the dog sniff, without more suspicion. Since the car is stopped for a traffic stop, it gives a chance for the dog to go work. Put it another way, the cop is standing on the side of a road near a traffic light. If the car is stopped at the light, the dog can sniff away. But the cop can't stop you, or hold you longer than the light.
This ruling just created a great business opportunity for those companies creating technology that can effectively emulate a dog's smell-sensing capability.
As I think Justice Roberts once quipped, if you "briefly" hold someone without cause, you've "briefly" violated their Constitutional rights.