SCOTUS Repeals Fourth Amendment

[LexusLover]

Originally Posted by CuteOldGuy

I still agree with Justice Sotomayor's, LexusLoser. Remember, Justice Thomas himself called the stop unconstitutional, which would take it out of the purview of the Terry case. Why do you defend unconstitutional police tactics? Is this part of the wonderful new changes which will make us an even greater country than before? Police able to make unconstitutional stops? I'll bet you like indefinite detention with no right to due process, too, don't you?

You don't do clients much good whining about the majority opinion of the SCOTUS and whimpering that the "dissent" had it right!

It appears to me that this dirt bag (Stierff) who was stupid enough to go shopping for recreational purposes at a known "store" for it while he had an outstanding warrant got PLENTY OF DUE PROCESS .... all the way to the SCOTUS with his spurious appeal.....that was summarily dispatched by Thomas, who has historically shown himself to be an intelligent person ... even when I didn't agree with him.

I have not seen the transcript from the trial (if there was one), which may be a part of the SCOTUS record, but other than Thomas's proclamation that it was an "unconstitutional stop" I would like to see the testimony of the "reasonable suspicion" facts that might support a contact by the police officer. Terry is relevant to the inquiry.

Your "assumption" of an illegal stop is not relevant given the attenuating circumstances as determined by Thomas. Thomas took his guidance from Brown v. Illinois, 422 U. S. 590, not some made up bullshit.

The "exclusionary rule" was for the purpose of depriving the government of the benefit of misconduct in the gathering of the evidence to be excluded, not so much to "punish" as to seek to modify their behavior. There have been various "exceptions' to the "exclusionary rule," which is not a "constitutional rule" as you seem to imply, but was crafted by the Courts so as not to award "bad behavior."

By the same token a criminal who is avoiding an arrest warrant should not be REWARDED while he is engaging in more illegal activity, because of some misjudgment by a police officer investigating serious crime.

You, erroneously, seem to believe that the "exclusionary rule" is etched in stone someplace without any "attenuating" circumstances that justice might require ignoring it.

For some good reason I have a reasonable suspicion that your "record" of championing the causes of criminals to assure they have all "due process" they can enjoy and to which they may be entitled could easily be surpassed by many, many others in your former profession on a daily basis.

Loyal representation involves truth of the reality at times as opposed to your brand of wishful thinking and hysteria. Unless, of course, you learned that tactic for the purpose of fleecing clients out of good money on the false believe that you were going to champion their rights in your next "test case"!

In all of your vast trial experience, civil and criminal, did you ever have a lawyer on the other side of the case tell you seriously and sincerely that you had a "good case"?

[LexusLover]

Originally Posted by dilbert firestorm

did Thomas explain why the stop was unconsitutional?

I didn't see it in the opinion. I will revisit the opinion and post the quote, if it is more than what I just copied and pasted.
Page 8:
The exclusionary rule exists to deter
police misconduct. Davis v. United States, 564 U. S. 229,
236–237 (2011). The third factor of the attenuation doctrine
reflects that rationale by favoring exclusion only
when the police misconduct is most in need of deterrence—
that is, when it is purposeful or flagrant.
Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made two good-faith mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. Second, because he lacked confirmation that Strieff was a short term
visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer Fackrell’s stated purpose was to “find out what was going on [in] the house.” App. 17. Nothing prevented him from approaching Strieff simply to ask. See Florida v. Bostick, 501 U. S. 429, 434 (1991) (“[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions”). But these errors in judgment hardly rise to a purposeful or flagrant violation of Strieff ’s Fourth Amendment rights. While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful. The officer’s decision to run the warrant check was a “negligibly burdensome precautio[n]” for officer safety. Rodriguez v. United States, 575 U. S. ___, ___ (2015) (slip op., at 7). And Officer Fackrell’s actual search of Strieff was a lawful search incident to arrest. See Gant, supra, at 339.
Moreover, there is no indication that this unlawful stop
was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected (Page 9) drug house. Officer Fackrell saw Strieff leave a suspected drug house. And his suspicion about the house was based on an anonymous tip and his personal observations."

Page 7:
"In this case, the warrant was valid, it predated Officer
Fackrell’s investigation, and it was entirely unconnected
with the stop. And once Officer Fackrell discovered the
warrant, he had an obligation to arrest Strieff. “A warrant
is a judicial mandate to an officer to conduct a search
or make an arrest, and the officer has a sworn duty to
carry out its provisions.” United States v. Leon, 468 U. S.
897, 920, n. 21 (1984) (internal quotation marks omitted).
Officer Fackrell’s arrest of Strieff thus was a ministerial
act that was independently compelled by the pre-existing
warrant. And once Officer Fackrell was authorized to
arrest Strieff, it was undisputedly lawful to search Strieff
as an incident of his arrest to protect Officer Fackrell’s
safety. See Arizona v. Gant, 556 U. S. 332, 339 (2009)
(explaining the permissible scope of searches incident to
arrest)."

Now ... please review the hysteria of "The Experienced Trial Attorney" ... whining about the "unconstitutional" police conduct .... then see the language I quoted from Terry ... Judge Thomas said it himself .... citing a later case ..

Nothing prevented him from approaching Strieff simply to ask. See Florida v. Bostick, 501 U. S. 429, 434 (1991) (“[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions”).

What Terry/Sibron INSTRUCT LE ... and that's what Sibron explains ... the word "stop" in Terry DOES NOT MEAN the officer can physically STOP the person .... it means THE OFFICER CAN STOP and talk to the person. That distinction has been erroneously morphed over the years by the phrase "stop and frisk" from Terry (which is called the "stop and frisk" case) .... into people thinking that means THE OFFICER CAN STOP THE CITIZEN AND FRISK THEM. That is not true.

So Thomas tells you what the officer did wrong! Thomas said:

"Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so."



That's it!!!

[i'va biggen]

Originally Posted by Rey Lengua

Why not BOTH, ya lying liberal peter puffer and gloryhole guru !

Originally Posted by Rey Lengua

Go get on YOUR knees down at the 'holes and suck some cocks and pick some dingleberries EKIM !

Say something buttfucker?

[CuteOldGuy]

I still agree with Sotomayor and Kagan. And, LexusLoser, I never had any attorney before a trial tell me I had a good case. I have been complimented by both attorneys and judges afterward. And, just to be honest, which I know you have a problem with, if I did not have a good case I worked to get a good deal. I had a guy in federal case that was caught solid. I had no case, and he was facing 20 years. I got him 8 years, and he loved me. But you won't believe that, because I bring it up to boost my self esteem on a hooker board.

I never asked my clients if they were guilty. I reviewed the evidence, and made recommendations, like go to trial, or take the plea, or work for a better plea. What we did was always the client's decision. It wasn't my job to determine whether my client was guilty. That job (used to) belong to the government. The government used to have to prove guilt beyond a reasonable doubt. They don't anymore. Now, a defendant has to prove innocence. They still give lip service to reasonable doubt, but that's not how it works in real life anymore.


Most of the time, the arrests of my clients were clean, and we worked a deal. But when they weren't, I did pretty well. But I'm glad I'm not doing it anymore.


There. Now you have more things to call me a liar about. And here I am, all out of fucks to give.

[LexusLover]

Originally Posted by CuteOldGuy

...I never had any attorney before a trial tell me I had a good case.

... You should probably ponder on that before you post any more regarding others!

Did Soto proclaim the "4th amendment was repealed" ... or was that your analysis?

[CuteOldGuy]

What, exactly, are you trying to prove, LexusLoser?

[LexusLover]

Originally Posted by CuteOldGuy

What, exactly, are you trying to prove, LexusLoser?

Nothing. You're doing it for me! I find that much more effective.

[Luv2Munch]

Besides the usual noise from the cheerleaders on the sidelines, this thread actually brought some good dialogue and reference material on a topic that is very relevant and current. Between the lines I see LL and COG have respect for their profession and each other. Too bad the monikers others have for them are also used by them. Is that how you would argue your case in the public courts if a judge didn't have to keep you civil while in session? Whatever happened to rising above the fray? Isn't there an ethics class in law school anymore?

[LexusLover]

Originally Posted by Luv2Munch

Is that how you would argue your case in the public courts if a judge didn't have to keep you civil while in session?

Most of these threads have the appearance of an NFL game on Sunday afternoon without any referees or line judges .... or clock!!!

And the others look like a Little League football game on Saturday morning ...

....without any referees or line judges .... or clock!!!

You pick.

Irrespective if the "opening salvo" were ..

"SCOTUS Repeals Fourth Amendment" ....

it probably would be downhill from there on for the lawyer announcing it!

[DSK]

Originally Posted by LexusLover

They don't need "probable cause" ... to talk to a person behaving "suspiciously"!

Terry vs. Ohio ... and if one reads the case immediately following it in the Supreme Court Reporter, which is New York vs. Sibron, the SCOTUS explains the ruling in Terry vs. Ohio (Sibron is actually two cases combined into one opinion, which the SCOTUS does from time to time. The standard in Terry/Sibron is "reasonable suspicion," but Terry is a "pat down" case in which the officer has a right to "pat down" for weapons or contraband (BTW that's a "pat down" not digging in pockets and laying shit out all over the trunk lid or hood of the car)... and ask for identification or identifying information. As in this case the driver had better have a driver's license. The officer then has a right to ask "dispatch" to verify the name and DOB ... or verify the validity of the license and information on it .....provided by the citizen.

Based on the superficial facts of the case just decided, the detective who made the stop should not have been making the stop .. period .. on several levels ... but he should have requested a marked patrol to "shadow" the guy and wait for a traffic violation (there will be one!) .. then stop the guy over on the legitimate traffic stop. If that had been done, it probably would have never gone to the SCOTUS.

The SCOTUS allows a reasonable amount of time to detain the person at the scene to verify the information provided, and if during that period of time something occurs or is observed that gives the officer a factual basis to extend the stop and/or "inquire further" or "look further" then he can.

Once a warrant is confirmed (as in the case just decided) that's like a new event that creates a level of response available to the officer that had not been available in the initial stop. (There are instances in which an officer is behind someone driving in traffic, runs the plate, is informed of the name and address on the registration, and then is informed by the dispatcher that the name on the registration has an outstanding warrant. Then the officer can stop the vehicle to identify the driver to see if he or she is the same person as on the registration records ... and inquire about any knowledge they have .... like why is that person driving someone else's car!

Sometimes it goes downhill from there for the driver ...... and anyone else in the vehicle, who can be removed from the vehicle and identified. (Like they are "joy riding" without permission in the neighbor's car, who is out of town for the week!)

Everything above is within the 4th amendment as interpreted by the SCOTUS. The hysteria of the OP is confirmed by a judicial history of the SCOTUS "expanding" the authority of LE based on changing technology, officer safety, and the increased mobility (a function of technology) of our society .... you will see language in the cases that discuss "less intrusive" measures .... as far as the citizens are concerned ... which means that it is less inconvenient and intrusive to allow a warrantless search of a motor vehicle on the side of the road than it would be to detain the people in the vehicle until a warrant signed by a judge can be brought to the location of a traffic stop! Thomas based his opinion on OLD LAW applied to a new set of facts .... 4th amendment cases are almost all different .. based on different fact situations ... (that's why there is no such thing as a "routine traffic stop"! ... that's bullshit from TV.)... and the only difference I see in the Utah case and the Ohio case is the observations made of the individuals involved .... but the detective had been observing the house for an extended period of time ...

... the same principles apply whether the person is foot traffic or vehicle traffic.

Utah is a stop and identify state, Texas is not.

In Texas, therefore, I believe a citizen can refuse to identify themselves to the police, unless they are under arrest. However, the Terry stop essentially in Utah v Strief took away the defendants right to refuse to identify themselves.

Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)

Had this case occurred in Texas, the defendant, having lost his legal right to refuse, could have walked in this case, secondary to his assertion, if applicable, that he would have legally refused identification, hence the warrant would have never come up, and the custodial inventory would not have occurred.

This is not the case in Utah, which requires you to identify yourself to the police, as is permissible under Hibel, and therefore unabridged by the illegal Terry stop.

Was this anomaly addressed in Justice Thomas' decision or Sotomayor's dissent?

[LexusLover]

Originally Posted by DSK

Utah is a stop and identify state, Texas is not.

In Texas, therefore, I believe a citizen can refuse to identify themselves to the police, unless they are under arrest. However, the Terry stop essentially in Utah v Strief took away the defendants right to refuse to identify themselves.

Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)

Had this case occurred in Texas, the defendant, having lost his legal right to refuse, could have walked in this case, secondary to his assertion, if applicable, that he would have legally refused identification, hence the warrant would have never come up, and the custodial inventory would not have occurred.

This is not the case in Utah, which requires you to identify yourself to the police, as is permissible under Hibel, and therefore unabridged by the illegal Terry stop.

Was this anomaly addressed in Justice Thomas' decision or Sotomayor's dissent?

The analysis of Thomas on the initial contact would be the same whether in Texas or Utah from the point of view of the SCOTUS. The Texas case law (Texas Court of Criminal Appeals) has erroneously (IMO) construed the "stop" in Terry to mean that the peace officer can stop the citizen, as opposed to Thomas's construction, which is the correct one.

As a consequence Texas courts (and Texas Peace Officers are taught) that based upon a "reasonable suspicion" they can "stop" a citizen and pat them down for weapons and/or contraband.

The Texas Code of Criminal Procedure and the Texas Penal Code authorize the Texas Peace Officer to arrest a person in a "suspicious" place .... and request identifying information ...

Texas Code of Criminal Procedure
" Art. 14.03. AUTHORITY OF PEACE OFFICERS. (a) Any peace officer may arrest, without warrant:
(1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws;..."

At the point of contact with the citizen the peace officer is "investigating"...

Texas Penal Code

Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.

These issues have been aired before in another forum .... people should not be given the impression that they can refuse to provide information name, residence, and date of birth to peace officers in Texas.

"Name, rank, and serial number" is all, but playing those games will get one a ride down to the jail .... and then they will discover that they may be DETAINED at the jail and unable to bond out until their true identity with accurate information sufficient to satisfy the appropriateness of a bond are provided.

With respect to a vehicle it opens up a whole new can of worms. Texas Transportation Code ... if you are operating a motor vehicle you had better have a driver's license in your possession to show the officer when he asks. The information will be verified. It goes downhill from there ... anyone of those offenses related to licensing and updating information are arrestable offenses......

Principle can also be spelled "principal"!

The former can cost a lot of the latter!

I'm not that familiar with Utah law, but it, like Texas, is a "model penal code" and Western state and I would be surprised if the Utah codes are that different, although perhaps worded somewhat differently in places.

Actually, in Texas the detective would be more likely to have "cover" from the statutes regarding his initial contact, except he would have "inquired" as opposed to "demanding" during the initial contact, as suggested by Thomas. (Notice in the opinion Thomas mentions the detective failure to testify as to a time interval Strieff was inside the structure .... and compare that to the extensive testimony in the Terry case by the detective.

[DSK]

Originally Posted by LexusLover

The analysis of Thomas on the initial contact would be the same whether in Texas or Utah from the point of view of the SCOTUS. The Texas case law (Texas Court of Criminal Appeals) has erroneously (IMO) construed the "stop" in Terry to mean that the peace officer can stop the citizen, as opposed to Thomas's construction, which is the correct one.

As a consequence Texas courts (and Texas Peace Officers are taught) that based upon a "reasonable suspicion" they can "stop" a citizen and pat them down for weapons and/or contraband.

The Texas Code of Criminal Procedure and the Texas Penal Code authorize the Texas Peace Officer to arrest a person in a "suspicious" place .... and request identifying information ...

Texas Code of Criminal Procedure
" Art. 14.03. AUTHORITY OF PEACE OFFICERS. (a) Any peace officer may arrest, without warrant:
(1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws;..."

At the point of contact with the citizen the peace officer is "investigating"...

Texas Penal Code

Sec. 38.02. FAILURE TO IDENTIFY. (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.

These issues have been aired before in another forum .... people should not be given the impression that they can refuse to provide information name, residence, and date of birth to peace officers in Texas.

"Name, rank, and serial number" is all, but playing those games will get one a ride down to the jail .... and then they will discover that they may be DETAINED at the jail and unable to bond out until their true identity with accurate information sufficient to satisfy the appropriateness of a bond are provided.

With respect to a vehicle it opens up a whole new can of worms. Texas Transportation Code ... if you are operating a motor vehicle you had better have a driver's license in your possession to show the officer when he asks. The information will be verified. It goes downhill from there ... anyone of those offenses related to licensing and updating information are arrestable offenses......

Principle can also be spelled "principal"!

The former can cost a lot of the latter!

I'm not that familiar with Utah law, but it, like Texas, is a "model penal code" and Western state and I would be surprised if the Utah codes are that different, although perhaps worded somewhat differently in places.

Actually, in Texas the detective would be more likely to have "cover" from the statutes regarding his initial contact, except he would have "inquired" as opposed to "demanding" during the initial contact, as suggested by Thomas. (Notice in the opinion Thomas mentions the detective failure to testify as to a time interval Strieff was inside the structure .... and compare that to the extensive testimony in the Terry case by the detective.

Excellent answer, thanks for taking the time and effort required to provide it.

[CuteOldGuy]

Let's not forget that Justice Thomas called the stop "unconstitutional". The rest of his "reasoning" flies out the window after making that assertion. Thomas is wrong. Sotomayor is right. If the initial stop is unconstitutional, the rest of the stop is unconstitutional. A first year law student could figure that out. But the conservatives on the Court are pandering to their base, trying to be "tough" on law enforcement. They are playing into the hands of those on the right who can't wait for greater police state tactics to be enforced. The Court is as much a political body as the Congress and the Executive branches. This decision is a blow to freedom. It will be used as precedent to erode freedom for many years to come. I hope you feel safer, because now we are all at risk.

[LexusLover]

Originally Posted by CuteOldGuy

Let's not forget that Justice Thomas called the stop "unconstitutional". The rest of his "reasoning" flies out the window after making that assertion. Thomas is wrong. Sotomayor is right. If the initial stop is unconstitutional, the rest of the stop is unconstitutional. A first year law student could figure that out.

But a graduating law student knows better!

And more importantly to the hysteria in the headline of the OP ...

... an attorney with extensive criminal trial practice is certain Thomas:

1. didn't "repeal the 4th amendment" with his decision; and
2. applied the correct analysis of attenuating circumstances .....

which is based upon the same principles as "inevitable discovery"!

You should probably stick with teaching economics, even though you have problems with that topic as well, old man.

[LexusLover]

Originally Posted by LexusLover

#1: The analysis of Thomas on the initial contact would be the same whether in Texas or Utah from the point of view of the SCOTUS. #2: The Texas case law (Texas Court of Criminal Appeals) has erroneously (IMO) construed the "stop" in Terry to mean that the peace officer can stop the citizen, as opposed to Thomas's construction, which is the correct one.

#1:

State v. Ellis, 2013 Tex. App. LEXIS 2467 (San Antonio 2013) involving a "detention stop" relies heavily on SCOTUS standards, not only from majority opinions, but concurring opinions (didn't see any dissenting opinions used to evaluate the cases .... a practice that is not recommended in appellate work!)


#2:

Overshown v. State, 329 S.W.3d 201 (14th COA, 2010)
“The word stop has a particular meaning in Fourth Amendment jurisprudence--it means a brief detention resulting from an officer's reasonable suspicion. See Terry v. Ohio, 392 U.S. 1, 10, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (articulating the party's argument, which the Court adopted, that "the police should be allowed to 'stop' a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity").” (See footnotes)

As I said the Texas courts misconstrue Terry vs. Ohio!

Compare that to Thomas's analysis of the "Terry stop" based on subsequent case law, which confirms that Thomas is "protecting" the standards of the 4th amendment regarding police and citizen interactions....NOT REPEALING IT!

What "first year law students" haven't figured out yet, unless they have a qualified Constitutional Law professor, is that 4th amendment (search and seizure) cases are based heavily on the specific facts of the particular case being evaluated in the trial court and above. And what bullshitting ECONOMIC PROFESSORS don't comprehend is cherry-picking excerpts from a dissenting opinion is not only a waste of time, but a waste of bandwidth.

"SCOTUS Repeals Fourth Amendment" = First Year Law Student Hysteria!