The Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effect shall not be
violated, and no warrants shall be issued but upon probable cause, supported by oath or affirmation, particularly describing
the place to be searched and the persons and things to be seized."
Originally, it meant no "writs of assistance", in which judges waived the right in an entire area to allow the king's
men to search everywhere. In Britain today, it meant that victims of illegal searches could sue for confiscated items and
for the search itself.
However, in the United States, the remedy for illegal searches went through a different phase. Although the Fourteenth
Amendment applied to the states, the Fourth itself only referred to the federal government in 1886. When it subpoenaed to
produce incriminating evidence, the Supreme Court would not allow it because it violated the Fifth right against self incrimination.
When federal agents illegally seized evidence in the case of Weeks in 1914, the Supreme Court found its remedy in the
exclusionary rule. All evidence became inadmissible in all parts of the criminal justice system. The burden fell upon the
prosecution to prove that it would have seized the evidence another way legally.
There were three reasons for the exclusion: it is a fundamental right "The right ...shall NOT be violated...", the judge did
not authorize it with a warrant, nor was there exigence (no time for a warrant), and finally, to deter police misconduct.
Keep in mind, at the time, most of the federal agencies, particularly the Federal Bureau of Investigation, did not exist.
At no time did this rule interfere with the administration of justice.
In 1961, the Warren Court extended the rule to the states in state courts. Previous decisions showed that the states could
abuse the fundamental right with impunity, and the federal government refused to punish state officials who abused federal
rights. Therefore, Mapp vs OH applied the Fourth Amendment and the exclusionary rule to the states. That should have been
the end of the story.
Then Nixon placed his Gang of Four on the Supreme Court, and the excuses to crooked cops began.; First, (Calandra
vs US, 1971) began to whittle the exclusionary rule as a remedy SOLELY to deter police misconduct. Once this nonsense was
in place, the rest followed.
There are a few problems with this approach. First, the precedents do NOT support it. Which part of "shall NOT be violated"
did the Nixonites NOT understand? This nonsense led to the "good faith" excuse to the exclusionary rule, and it reaches ludicrous
portions in IL vs Krull (1987). In 'ill and cruel", the Gang of Four and White refused to use the exclusionary rule when the
search law later showed to be unconstitutional. The excuse was that exclusion would not deter legislatures from passing illegal
search laws. They lost O Connor on that one.
How do the cops know that the search laws are unconstitutional until a court so declares it? What it comes down to is
that the entire theory is wrong!
The exclusionary rule has THREE reasons: as a personal right of privacy, to disallow a
search which no judge allowed in the first place, and to deter the police. As Mapp and Weeks before it show, it is absolute
because the Fourth says so. A strict constructionist does not see anything in the amendment about "shall not be violated,
unless it does not deter police".
My take on this is that the Nixon-Burger Court tried to limit the exclusionary rule to replace suing the police. Now,
Hudson seems to limit it even further.
UT vs Strieff: More Coddling Crooked Cops
Clarence Thomas somehow managed to get Stephen Breyer join the Reagan-Bush Court to allow the police to conduct illegal
stops to check for arrest warrants, or to harass pedestrians whenever they want. At issue is the exclusionary rule, which
the Nixon-Burger Court perverted its original intent in Weeks in 1914, Silverthorne Lumber in 1920, and Mapp vs OH in 1961
as the absolute remedy of illegal searches. At that time, the exclusionary rule had three purposes:
1. Part and parcel of the Fourth Amendment
2. Judicial integrity
3. Deterring illegal searches "The rights of the people to be secure in their persons, houses , papers, and effects
against unreasonable searches and seizures shall NOT be violated" Not only does this rule be absolute, but the Fourth also
provides the right of privacy. What part of "shall not" does the Court not understand? Then the Nixon-Burger Court limited
the remedy in 1971 (Calandra) to deterring police misconduct. Thus, the Nixon Gang of Four (Warren Burger, Harry Blackmun,
Lewis Powell, and William Rehnquist) decided to insult the police and make them the target of the exclusionary rule. Eventually,
the Court decided to get into the heads of the police and figure out what deters them. Back to Stieff, Thomas then brings
up the three-pronged test for allowing illegally-seized evidence:
1. The Independent Source Doctrine
2. The Inevitable Discovery
3. The Attenuation Doctrine
The Independent Source Doctrine would pass in the Warren Court. The exclusionary
rule does not extend to any legally seized evidence, even though it might have been seized illegally earlier. The prosecution
may use it if it would have been obtained legally otherwise. The Inevitable Discovery is more nebulous, but it also follows
that the prosecution may prove that the fruits of an illegal search may have been obtained otherwise legally. The Attenuation
Doctrine resulted from the perversion of the exclusionary rule as solely to deter the police. The exclusionary rule did not
substitute for lawsuits to return illegally-seized evidence. The most comical application of the deterrence doctrine came
in 1987 under IL vs Krull (ill and cruel) in which the Nixon-Rehnquist Court allowed illegally-seized evidence under search
laws later proved unconstitutional because the exclusionary rule did not deter legislators! They lost Sandra Day O Connor,
a former legislator, but they still had five for the vote. So how are the police going to know a search law is unconstitutional?
Blackmun dodged the answer, so legislators may pass illegal search laws and get away with them until the laws are declared
unconstitutional. This time police may make illegal stops, and should there be an arrest warrant, they can get away with the
illegal stop? So Thomas plods alone to allow the seized evidence (Search incident to arrest is not in question.) because
there had been a legitimate arrest warrant on the defendant, even though the stop had lacked an articulable suspicion under
Earl Warren's opinion in Terry vs OH (1968). Not only does it violate the Terry rule of stop and frisk, but also the longstanding
rule of not allowing the fruit of the poisonous tree. The stop was illegal; therefore, no admissible evidence. Sonia
Sotomayor wrote the major dissent and hints of going back to the original meaning of the exclusionary rule, which predates
the FBI. Elena Kagan simply argues along the test of attenuation. The Court finds some excuse to allow evidence obtained from
an illegal stop and frisk when there is no articulable suspicion. To paraphrase the jargon of Nixon and Reagan, the Court
has decided to coddle crooked cops. There's yet another reason we push the Court from its lean to the right since 1970. Overriding
this case, going back to Silverthorne and Mapp and an absolute rule would help, and while we're at it, reversing Citizens
United would be a fine start toward reversing the trend economically since 1970 as well.
Collins vs VA Tue 29 May 2018
The automobile exception does not permit the warrantless entry of a home or its curtilage to search a vehicle therein.
Sotomayor + Kennedy, Ginsburg, Breyer, Roberts, Kagan, Gorsich
Two incidents of traffic violations with an orange and black motorcycle led to further investigation that the vehicle
was stolen. Checking further shows thatn Ran Collins had possession, so the officer traced the location through Facebook the
location of the picture.
From the street, the possible motorcycle was covered but had an extended frame and the the same angle parked. Officer
photographed from the street, then walked up the driveway and investigated further by removing the trap and checking the license
and number, confirming the theft. Officer photographed it, returned the tarp, left the property, and waited for Collins.
The Court of Appeals confirmed on exigence.
The Supreme Court of VA used the automobile exception.
Carroll vs US 1925 justified the warrantless search due to readily mobile vehicle
CA vs Carney 1985 addtional rationale: the pervasive regulations of vehicles traveling on the public highways , but warrantless
searches need probable cause
CA vs Ciralola 1986 The protection afforded the curtilage is essentially a protection of families and personal privacy
in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened
The scope of the automobile exception is limited to the vehicle.
Thomas, concur, but without the exclusionary rule! Wrote both the exclusionary rule is not part of the Fourth nor applicable
to the states.
Alito, dissent, used the probable cause and expanded the automobile exception that it can be moved, not moving, as exigence.
This Supreme Court actually upheld the privacy of the curtilage against warrantless searches in Collins vs VA this week.
Sonia Sotomayer wrote the opinion which drew seven votes. At question was the area near the house as a zone of privacy, called
the curtilage and the automobile exception as to exigence. They agreed that the police may not enter private property, even
with probably cause, without a warrant, without exigence. The automobile exception fits the broad meaning of exigence but
only when it's moving, not because it's movable.
The lone dissenter of the case, Sam Alito, doesn't seem to understand that the motorcycle was movable, not moving. Furthermore,
tarp covered it, so an officer would not see a license plate from the street. Even Scalia used to make such distinction between
moving and movable. Scalito thinks officers can come on property, even though there is time for a warrant.
Uncle Thomas wrote a peculiar concurrence, agreeing with the result while disputing the exclusionary rule. Like Scalia
and his radical attack on Miranda rights, in Dickerson (2000) and allowing the fruits of an illegal stop in Strieff (2017),
Thomas continues to complain about what the founders knew while upholding the right to own assault weapons. Using his own
methods, anything Thomas says should be used against him in the court of public opinion.
Even with the exclusionary rule, Collins will still pay the traffic violations and surrender the motorcycle to its owner.
Next time Collins should buy items and get the title! He spent enough time in jail to think about it.
Byrd vs US Mon 14 May 2018
Does a defendant have a reasonable expectation of privacy in a rental car in someone else's name?
Yes, the driver was in lawful possession.
Rakas vs IL referenced is instructive in determining the privacy interests protected by the Fourth Amendment and legitimation
of expectations of privacy must have a source outside of the Fourth Amendment, either by reference to concepts of real of
personal property law or understandings that are recognized and permitted by society.
Right to excluded others
A breach of contract is insufficient, and it states liability in lawful possession
Kennedy + unanimous
Remanded whether Byrd had a right to object to the search
An observance with Byrd in which the Supreme Court finally clarified the privacy interests from Rakas in 1978 when the
Rehnquisition muddled the difference between privacy and property interests. In Rakas, the majority opinion found no standing
for the defendants to challenge the search. The court never simply decided that the case turns on the police had probable
cause to stop the car and exigence to search the car for evidence of armed robbery. Because the lower courts brought up standing
to exclude the evidence, the Court implied that to have standing, one must have a property interest. Nixon's Gang of Four
and Stewart voted the majority.
I also reviewed WY vs Houghton (1999) in which police legitimately stopped a car, which led to evidence of drugs. They
found evidence in the purse of the defendant, one of the passengers. It was another close decision, ironically involving methamphetamines
a few months after the murder of Matthew (Wayne) Shepard in Laramie and before the trial of the murderer. Stevens went along
with Reagan's Gang of Four and Uncle Thomas because he believed the defendant's right of privacy during the search was solely
on her person, not her purse in the back seat.
So Byrd still had a right of privacy in a rented car not assigned in his name because he was in lawful possession and
could exclude others. The Fourth protects privacy, not property. Without the drugs found in the trunk, he's free, although
he still lost possession of the contraband. Such is the justice of the exclusionary rule. Byrd won't get back his time in