Recent Supreme Court ruling

[sactoking]

I never understood that either. Had a high school buddy that was busted for something like $15,000 of pot; he consented to have his car searched because he thought that if he declined, the cop would get suspicious. When I asked him if the cop wouldn't be at least as suspicious after he finds a big bag of weed, he had no answer.

That was my impression as well. Many offenders do not know their rights; they figure the vehicle will be towed and impounded and whatever they want hidden will be found anyway so by consenting they can cooperate and get a plea or something. Too many cop-drama TV shows I think.

 

[nonlnear]

I never understood that either. Had a high school buddy that was busted for something like $15,000 of pot; he consented to have his car searched because he thought that if he declined, the cop would get suspicious. When I asked him if the cop wouldn't be at least as suspicious after he finds a big bag of weed, he had no answer.

I've also never understood why anyone ever says they understand their Miranda rights. There is no upside to saying yes.

 

[brencat]

You're a felon driving down the road with a gun hidden in your car.

Using the good judgment that made you a felon, you break a traffic law and are pulled over.

Getting out of your car as instructed, you smile about the 4th amendment protecting you from 'unreasonable search and seizure', so you'll get a ticket and the gun stays hidden.

Not so fast. Using the current law, the officers find grounds for searching your car, find the gun, and you go to jail for the gun violation.


http://www.scotusblog.com/case-files/cases/davis-v-united-states?wpmp_switcher=desktop

There's a problem here and it's obvious. As a convicted felon with a record, you are never again legally allowed to own firearms. What the fvck is this guy doing with a gun? Right -- he obtained it illegally. If the gun was found on a reasonable suspicion search, the fact remains his right to own guns was forfeited for life with his first felony conviction.

 

[Craig234]

The dissent makes a pretty good argument as well.

As it says, the new finding is not really a new rule, but one based in the constitution.

So the idea isn't 'we made this new rule, and there's no need to apply it', it's 'we have decided that this is what the constitution has said all along and corrected our rules'.

If a cashier realizes he gave you change for a $10 instead of a $20, he doesn't announce it to you and say 'but at the time, I acted in good faith, so no remedy is needed'.

At this point I can no longer agree with the Court. A new “good faith” exception and this Court’s retroactivitydecisions are incompatible. For one thing, the Court’s distinction between (1) retroactive application of a new
rule and (2) availability of a remedy is highly artificial and runs counter to precedent. To determine that a new rule is retroactive is to determine that, at least in the normal case, there is a remedy. As we have previously said, the“source of a ‘new rule’ is the Constitution itself, not anyjudicial power to create new rules of law”; hence, “[w]hat we are actually determining when we assess the ‘retroac-tivity’ of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule willentitle a criminal defendant to the relief sought.” Dan-forth v. Minnesota, 552 U. S. 264, 271 (2008). The Court’s “good faith” exception (unlike, say, inevitable discovery, a remedial doctrine that applies only upon occasion) creates “a categorical bar to obtaining redress” in every case pend-ing when a precedent is overturned. Ante, at 13–14...

Another such problem concerns fairness. Today’s hold-ing, like that in Linkletter, “violates basic norms of con-stitutional adjudication.” Griffith, supra, at 322. It treats the defendant in a case announcing a new rule one way while treating similarly situated defendants whose casesare pending on appeal in a different way.

 

[woolfe9999]

I've also never understood why anyone ever says they understand their Miranda rights. There is no upside to saying yes.

Because the police ask for things under "color of authority," and there are people who will walk off a cliff if asked to do so by someone operating under color of authority. In California, you do not have to submit to a portable breath test after being given a field sobriety test. In most cases, the portable breath test result is necessary to establish probable cause to arrest you, where you then have no option to refuse the more scientifically reliable blood alcohol tests. There is never an upside to agreeing to take the portable breath test, but most people do.

 

[Craig234]

There's a problem here and it's obvious. As a convicted felon with a record, you are never again legally allowed to own firearms. What the fvck is this guy doing with a gun? Right -- he obtained it illegally. If the gun was found on a reasonable suspicion search, the fact remains his right to own guns was forfeited for life with his first felony conviction.

There's no argument that he was guilty of a crime for possessing the firearm (there's never an NRA lawyer when you need one).

But your assumption is wrong, as both sides agreed - that this turned out NOT to be found from a legal search - just one that was legal at the time and later found to be illegal.

 

[Craig234]

Because the police ask for things under "color of authority," and there are people who will walk off a cliff if asked to do so by someone operating under color of authority. In California, you do not have to submit to a portable breath test after being given a field sobriety test. In most cases, the portable breath test result is necessary to establish probable cause to arrest you, where you then have no option to refuse the more scientifically reliable blood alcohol tests. There is never an upside to agreeing to take the portable breath test, but most people do.

Isn't the field sobriety test probable cause for arrest already?

I'd think the reason to take the portable breath test is if you fail the field test, but think you are not over the limit and the portable test will get you released.

It could save you a lot of hassle - and a mandatory suspension if you refuse all tests.

I wonder if a mandatory portable blood test couldn't be constitutional once you fail the field test.

 

[Craig234]

I've also never understood why anyone ever says they understand their Miranda rights. There is no upside to saying yes.

I've wondered that too, but think there's no upside to saying no - the police ask if you understand and offer to briefly restate or explain then, but I think if you just keep saying you don't understand that they have still met the constitutional requirement for you to be informed of them.

 

[Craig234]

That was my impression as well. Many offenders do not know their rights; they figure the vehicle will be towed and impounded and whatever they want hidden will be found anyway so by consenting they can cooperate and get a plea or something. Too many cop-drama TV shows I think.

There's also the psychology the police use.

I don't think a police officer ever just asks if they can search - people react to that realizing it's a yes or no question and they can say no.

The police always start off asking a question where the person denies having anything illegal. "Do you have any illegal drugs in there?" The person quickly says 'no'.

Then the officer quickly asks, 'you don't mind if I check' - because then the person isn't just answering that question, they're defending what they said.

If they refuse the request, they're 'looking like a liar'. After all, if they're telling the truth, why would they mind? That's a natural reaction.

There's a lot more pressure for them to allow the search when done that way than if the officer just said 'mind if I search?'

One other thing - I don't know how often it's done, but the police on a refusal will sometimes bring a police dog to sniff outside the car - and can create probable cause.

But people who have something seem better off refusing the search - once the police find it, that's that.

One possible exception is a small amount of marijuana, if the police say that they'll overlook that. Though defense lawyers seem to say 'say nothing, consent to nothing'.

 

[soccerballtux]

tldr man

 

[sactoking]

The dissent makes a pretty good argument as well.

I don't buy Breyer's dissent. He dissents on the grounds that he believes the majority is cresting a new "reasonable reliance" exception to Bolton. He views this as inappropriate or two reasons:
1) In his opinion exclusionary redress is the default remedy to Fourth Amendment violations. Absence of exclusionary redress is granted only in very rare, extreme circumstances.
2) He believes the majority opinion will create an erosion to Bolton whereby any search in violation of the Fourth Amendment may lend itself to a defense of "reasonable reliance".

Concern #2 I think is reading too much into Davis. The majority in Davis were pretty clear that this "reasonable reliance" came from an extraordinary circumstance and was not a broad interpretation.

I find concern #1 to be uncompelling due to Breyer's own words. He claimed that exclusionary redress was the de facto remedy in all but the most extreme circumstances. In listing cases where it was not the remedy he cites Illinois v Krull where "an unconstitutional statute purported to authorize the search". In other words, in building a case that not applying the exclusionary remedy is atypical, he cites a case as "atypical" with surprisingly similar circumstances.

His dissent condenses down to this:
"The majority says exclusionary redress is not automatic. I disagree in that exclusionary redress should be automatic in all but the most extreme cases. To support that view I will list some instances in which exclusionary redress should NOT be applied, including one with circumstances remarkably similar to this. But don't pay any attention to that one, that one's different."

 

[Fern]

-snip-
One other thing - I don't know how often it's done, but the police on a refusal will sometimes bring a police dog to sniff outside the car - and can create probable cause.

I got stopped once and the oficer asked if he could search my car. I told him yes. But then he looked at me said he wasn't gonna search, but said if I had said 'no' he would've held me there until the police dogs showed up. he told it would've been a PITA and taken up an hour of my time.

I don't know if he was being a jerk or what (I didn't even get a ticket, he let me go).

But it fits with what you're saying.

Fern

 

[nonlnear]

I've wondered that too, but think there's no upside to saying no - the police ask if you understand and offer to briefly restate or explain then, but I think if you just keep saying you don't understand that they have still met the constitutional requirement for you to be informed of them.

There probably isn't a huge upside to saying no, but it does open one more (albeit narrow) path for your defense. As long as there are outstanding questions in the Miranda case law, everybody has a legitimate cause to demand a complete explanation of the arresting authority's understanding of Miranda from soemone in the DA's office. i.e. Because it is incumbent on the state to inform you of your rights, not only do you have the right to demand your own lawyer, but prior to that you should (AFAIK nobody has tried this yet) be able to demand some face time with someone from the DA's office too - prior to any questioning.

How would police respond to questions like: "What exactly does it mean to "remain silent?" or "I'm not asking for a lawyer at this juncture. I think I might decide I don't want one but I need to get a clearer picture of what the limits are on your authority if I do decline a lawyer. Can you help me understand?" I'm sure you see where this is headed. Sadly as a generally law abiding citizen, I may never have a chance to try it out. Oh well, it's fun to dream... In reality I suspect if anyone were to go down that path I think most police would just say screw it and bring in a public defender. Either that or kick the suspect in the teeth.

FYI Craig, I suspect that the rights of suspects and criminals is one area where we might agree on a lot of things. I think the Republicans (at least those who are "tough on crime", not the tiny handful of Republicans who truly care about the preservation of rights) are an embarrassment to humanity.

 

[nonlnear]

I got stopped once and the oficer asked if he could search my car. I told him yes. But then he looked at me said he wasn't gonna search, but said if I had said 'no' he would've held me there until the police dogs showed up. he told it would've been a PITA and taken up an hour of my time.

I don't know if he was being a jerk or what (I didn't even get a ticket, he let me go).

But it fits with what you're saying.

Fern

If a police officer tries to detain you without PC there are two questions to remember to ask: "Am I under arrest?" and "Am I free to go?" The instant the cop starts stalling it's time to jump to that script.

 

[werepossum]

Because the police ask for things under "color of authority," and there are people who will walk off a cliff if asked to do so by someone operating under color of authority. In California, you do not have to submit to a portable breath test after being given a field sobriety test. In most cases, the portable breath test result is necessary to establish probable cause to arrest you, where you then have no option to refuse the more scientifically reliable blood alcohol tests. There is never an upside to agreeing to take the portable breath test, but most people do.

I took one of those portable breathalyzer tests on a roadblock stop near home, manned by cops but administered by MADD ladies (who actually seemed very hostile to me for no better reason than I had worked late.) The cop asks if I'm willing to take a breathalyzer, and since I haven't been drinking (and figure if I refuse I'll look suspicious and have to take a field sobriety test) I agree. The very angry MADD lady walks over and pokes it into my mouth, I test negative, the MADD lady stomps off, the cop thanks me, and I drive off. It's only later that it hits me - how many people have had their lips wrapped around that thing? Ugg!

 

[sactoking]

-snip-

I think that would have a much better chance at flying now that the USSC has ruled that remaining silent is not an invocation of your right to remain silent and that you must speak and affirm your choice to henceforth remain silent in order to legally be considered "remaining silent".

 

[Craig234]

I took one of those portable breathalyzer tests on a roadblock stop near home, manned by cops but administered by MADD ladies (who actually seemed very hostile to me for no better reason than I had worked late.) The cop asks if I'm willing to take a breathalyzer, and since I haven't been drinking (and figure if I refuse I'll look suspicious and have to take a field sobriety test) I agree. The very angry MADD lady walks over and pokes it into my mouth, I test negative, the MADD lady stomps off, the cop thanks me, and I drive off. It's only later that it hits me - how many people have had their lips wrapped around that thing? Ugg!

I'm far more concerned about whoever followed you.

I assume they put some new cover on it each time.

 

[Fern]

If a police officer tries to detain you without PC there are two questions to remember to ask: "Am I under arrest?" and "Am I free to go?" The instant the cop starts stalling it's time to jump to that script.

Well, I'm sure my reply here isn't the politically correct one, or the proper legal one (hypothetically at least).

But in my experience it's always worked very well for me to just be polite/respectful and not challange the cops, whether or not I've broken the law (and I have, and been arrested several times in various countries too).

I've seen clean-cut, well-dressed, upper-middle class white people get their ass kicked (broken arm etc) for challenging cops.

I may do it one day, but it'll have to be something worthwhile or a bit extreme, like them busting down my front door and shooting my dogs, before I challenge them.

So far I consider my formula of being polite, well spoken and forthright to have been wildly successful.

Fern

 

[Fern]

-snip-
It's only later that it hits me - how many people have had their lips wrapped around that thing? Ugg!

I'm pretty sure they have disposable tips on them. At least the one's I've seen did.

Fern

 

[Craig234]

I'm pretty sure they have disposable tips on them. At least the one's I've seen did.

Fern

In hindsight, I wish I'd responded to him that I've known for years they do use bad hygiene on it, and have felt it's an issue, and seen reports of people who caught things. Too late.

 

[nonlnear]

Well, I'm sure my reply here isn't the politically correct one, or the proper legal one (hypothetically at least).

But in my experience it's always wroked very well for me to just be polite/respectful and not challange the cops, whether or not I've broken the law (and I have, and been arrested several times in various countries too).

I've seen clean-cut, well-dressed, upper-middle class white people get their ass kicked (broken arm etc) for challenging cops.

I may do it one day, but it'll have to be something worthwhile or a bit extreme, like them busting down my front door and shooting my dogs, before I challenge them.

So far I consider my formula of being polite, well spoken and forthright to have been wildly successful.

Fern

Denying a search isn't challenging the cops though. It doesn't require disrespect or being impolite. (And I think denying a search impolitely is generally a bad idea, especially that in some places such an act could be twisted into probable cause, depending on the local police practices.) I definitely agree that toying with police for amusement and pushing the limits of legal protections while being obnoxious and rude is a foolish course of action. I too am generally polite, well spoken, and forthright with the po-po. I appreciate that they do some good things too.

 

[werepossum]

In hindsight, I wish I'd responded to him that I've known for years they do use bad hygiene on it, and have felt it's an issue, and seen reports of people who caught things. Too late.

Missed your chance.

 

[wuliheron]

Possession is nine tenths the law, intent is the last tenth and the hardest to prove. Anytime a convicted felon goes on the stand and its his word against a cop's who says he was acting in good faith its no contest. People can argue about lines drawn in the sand, but when the lines shift there is always a grace period.

 

[cubby1223]

I took one of those portable breathalyzer tests on a roadblock stop near home, manned by cops but administered by MADD ladies (who actually seemed very hostile to me for no better reason than I had worked late.) The cop asks if I'm willing to take a breathalyzer, and since I haven't been drinking (and figure if I refuse I'll look suspicious and have to take a field sobriety test) I agree. The very angry MADD lady walks over and pokes it into my mouth, I test negative, the MADD lady stomps off, the cop thanks me, and I drive off. It's only later that it hits me - how many people have had their lips wrapped around that thing? Ugg!

When I was given a breathalyzer (speeding ticket, Wisconsin cops didn't know how to properly look up Illinois license plate numbers, made for a long night) the cop gave me the plastic tube afterwards. So, at least there they all are one-time use.

 

[Craig234]

When I was given a breathalyzer (speeding ticket, Wisconsin cops didn't know how to properly look up Illinois license plate numbers, made for a long night) the cop gave me the plastic tube afterwards. So, at least there they all are one-time use.

Actually, the urine tubes are also re-used for the blow tests in Werepossum's state.

Darn, still missed the chance.