Vehicular Searches and Random Checkpoints — Is Your Car Really an Extension of Your Home?

Just this week, as I was commenting on Section 1021 of the National Defense Authorization Act of 2012 or National Defense law that was signed by President Barack Obama, the question came up of whether the Supreme Court would rule this offending portion unconstitutional. My response follows:

As far as the Supreme Court declaring Section 1021 of the NDAA legislation unconstitutional,  I would not be so sure. Even the éminence grises of American jurisprudence confuse sensible “law and order" conservatism with "collectivist authoritarianism," as they have done frequently in the past and did more recently when they ruled to give the police excessive powers in vehicle searches in 1981 and again in random searches in 1991.

First, I was referring to the New York v. Belton decision of 1981. The New York Times noted, "Police officers have for a generation understood themselves to be free to search vehicles based on nothing more than the fact that they had just arrested an occupant. That principle, Justice John Paul Stevens acknowledged in his majority opinion, 'has been widely taught in police academies and law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years.' "(1)

Although the Supreme Court (Arizona v. Gant) in 2009 limited significantly the old power of the police to search the cars of people they arrest without a warrant, it is still too wide, in my opinion, and with other precedents such as stopping vehicles at road block, etc. – the new decision hangs by a thread!

Moreover, I was told be friends, whose car were illegally searched that all the law enforcement officer has to do is to impound the vehicle, claim the need to make an inventory before the car is taken to the lot, and then proceed to search the car. At that point they have searched your car without your permission circumventing the constitutional requirement against illegal searches. At other times, they just refuse to obey the law and search the vehicle anyway. Defense attorneys advise clients to refuse the searches anyway because if the police are corrupt and plant something in your car, one can always fight in court on facts as well as legal technicalities.

The New York Times also noted, "Justice Scalia said he would have overruled Belton outright and substituted a rule that allowed searches of vehicles in connection with arrests only where the search seeks evidence of the crime for which the arrest was made or another one for which there is probable cause. He added that he joined the majority opinion to avoid a 4-1-4 decision that leaves the governing rule uncertain. Justice Samuel A. Alito Jr., joined in full by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy and for the most part by Justice Stephen G. Breyer, said the broad Belton rule was sensible and easy to apply."(1)

Justice Clarence Thomas has always been correct in this type of ruling protecting freedom, balancing the requirements of sensible law and order with individual liberty. I am glad Justice Antonin Scalia supported Thomas on that ruling. Nevertheless, one must notice that the "conservative" and "liberal" justices became strange bedfellows, commingling with impunity, on that ruling.

Again The New York Times correctly asserted: "The justices divided in an unusual fashion. Justices Ruth Bader Ginsburg, Antonin Scalia, David Souter, and Clarence Thomas joined the majority opinion. Chief Justice John Roberts and Justices Stephen Breyer and Anthony Kennedy were in dissent along with Alito."

(1)

And this is what I mean when I write that many conservatives confuse "law and order" conservatism with "collectivist authoritarianism." And freedom gets lost in the confusion!

Second, let me just note for the record that random civilian checkpoints have been upheld by the Supreme Court for conducting sobriety checkpoints where there is no probable cause. Notwithstanding, we have been told that our automobiles have been deemed an extension of our homes in legal rulings and numerous statues.

The Fourth Amendment to the U.S. Constitution reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Huffington Post elucidated, "By a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. While acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued the state interest in reducing drunk driving outweighed this minor infringement."(2)

I am not opposed to the police stopping anyone upon the probable cause of drunk driving or suspected drug use, but road blocks for random searches or sobriety tests is another story. And calling this invasion of privacy a "minor infringement," in my humble opinion, is a very cavalier attitude toward freedom and evinces a short-sighted knowledge of historical reality.

Have we forgotten Thomas jefferson's admonition, "The natural progress of things is for liberty to yield and government to gain ground"?(3) So why not keep the "compelling interest" standard a bit more stringent, in the interest of preserving liberty, that precious jewel our forefathers fought and died for?

References

1. Liptak, Adam. Supreme Court Cuts Back Officers’ Searches of Vehicles. The New York Times, April 21, 2009.

2. Sherman, Mark. Supreme Court Limits Warrantless Vehicle Searches. The Huffington Post, January 6, 2012.

3. Thomas Jefferson letter to E. Carrington, 1788.

Written by Dr. Miguel Faria

This article was published exclusively for HaciendaPublishing.com on January 6, 2012. The article can be cited as: Faria MA. Vehicular serches and random checkpoints — Is your car an extension of your home? HaciendaPublishing.com, January 6, 2012. Available from: http://www.haciendapub.com/randomnotes/vehicular-searches-and-random-che...

Copyright ©2012 Miguel A. Faria, Jr., M.D.

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Antonin Scalia, American hero, RIP!

WASHINGTON (AP) — Antonin Scalia, the influential conservative and most provocative member of the Supreme Court, has died. He was 79.

The U.S. Marshals Service in Washington confirmed Scalia's death at a private residence in the Big Bend area of West Texas. Spokeswoman Donna Sellers said Scalia had retired the previous evening and was found dead Saturday morning after he did not appear for breakfast.

His death sets up a likely ideological showdown during a presidential election year as President Barack Obama weighs nominating a successor to the justice in the remainder of his White House term. Scalia was part of a 5-4 conservative majority — with one of the five, Anthony Kennedy, sometimes voting with liberals on the court.

Scalia used his keen intellect and missionary zeal in an unyielding attempt to move the court farther to the right after his 1986 selection by President Ronald Reagan. He also advocated tirelessly in favor of originalism, the method of constitutional interpretation that looks to the meaning of words and concepts as they were understood by the Founding Fathers.

Scalia's impact on the court was muted by his seeming disregard for moderating his views to help build consensus, although he was held in deep affection by his ideological opposites Ruth Bader Ginsburg and Elena Kagan. Scalia and Ginsburg shared a love of opera. He persuaded Kagan to join him on hunting trips.

His 2008 opinion for the court in favor of gun rights drew heavily on the history of the Second Amendment and was his crowning moment on the bench.

He could be a strong supporter of privacy in cases involving police searches and defendants' rights. Indeed, Scalia often said he should be the "poster child" for the criminal defense bar.

But he also voted consistently to let states outlaw abortions, to allow a closer relationship between government and religion, to permit executions and to limit lawsuits.

He was in the court's majority in the 2000 Bush v. Gore decision, which effectively decided the presidential election for Republican George W. Bush. "Get over it," Scalia would famously say at speaking engagements in the ensuing years whenever the topic arose...

The death of Antonin Scalia leaves a void that can not be filled not only in the Supreme Court, but in American jurisprudence — and in American statesmanship. I cannot think of a death more catastrophic for America — not for the world — than that of Antonin Scalia. --- MAF

Antonin Scalia Requiem

Justice Antonin Scalia (1936-2016) In Memoriam

Antonin Scalia’s funeral mass. His son is the celebrant — the priest leading the mass — and delivers the homily, the sermon that explores the themes of the Bible readings at Mass for the funeral service at the Basilica of the National Shrine of the Immaculate Conception, in Washington, DC, February 20, 2016:

http://www.c-span.org/video/?404962-1/justice-antonin-scalia-funeral-mass

My thanks to Fr. Allan J. McDonald, Pastor of St. Joseph Catholic Church for information on the Funeral arrangement, homilies, singing, etc., posted on his blog and the URL for the video.

Bravo for Bosque Flores!

From the Macon Telegraph February, 18, 2016
Letter to the Editor: Follow the Constitution

As soon as the Senate Majority Leader heard about Justice Antonin Scalia's death, he put out a statement that "... this vacancy should not be filled until we have a new president."

Excuse me? I thought the GOP were strict constitutionalist. Article 2, section 2 is explicit on how a vacancy is filled and nothing is mentioned about waiting for a different president. Perhaps he should consider past practice. In 1988 President Reagan nominated Justice Anthony Kennedy and he was confirmed in February of an election year by a Democratic Senate 97-0.

Meanwhile, in honor of Justice Scalia's death, I have heard that Justice Clarence Thomas will continue to observe the moment of silence that he's been observing for the last 20 years. --- “Comrade” Carl Pirkle, Byron

Bosque Flores: In 2006 Obama was part of a group of Senators that pledged to NOT consider any Supreme Court nominee put forth by President Bush. But, of course, we are supposed to believe that was somehow different than McConnell's statement. Samuel Alito was finally confirmed that year, but not after a filibuster by then Senator Obama.

Supreme Court nominees are only put forth when there is a vacancy, regardless of how the vacancy occurs. Unexpected death, retirement, whatever. I don't agree with McConnell's grandstanding, but your rationalization doesn't work. President Obama should put forth his nominee and the Senate should vote to confirm or not to confirm. It might take three like it took Reagan 87/88 when he put forth Bork, Ginsburg, then Anthony Kennedy who finally was approved.

Now, I will admit that Democrats have, in the past, determined extraordinary circumstances. Take Franklin Roosevelt for instance. He and other Democrats had the extraordinary circumstance of needing to stack the court by adding six additional Justices. Thankfully, that failed.

Emory Lane: Article II, Section 2, Paragraph 2 states: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

The only mention in the Constitution of "extraordinary" is found in Article II, Section 3: "... he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper..."

The Executive may nominate a new Justice. However, the Senate may choose to take up the nomination after the election. Nothing can be done to change that other than political pressure.

Well said Emory Lane and Bosque Flores! As to "It might take three like it took Reagan 87/88 when he put forth Bork, Ginsburg, then Anthony Kennedy who finally was approved" — I do hope the Republican Senate upholds its constitutional function ("advice and consent") and insists on a qualified candidate even if it takes that many, just as the Democrats do not hesitate to do! --- MAF

Thanksgiving: GOA court victories!

Thanksgiving — GOA court victories!

Rodriguez v. United States, April 15, 2015

The Supreme Court ruled favorably in a case where Gun Owners Foundation and GOA were involved -- a case that further protects gun owners’ property (like firearms) from unreasonable searches and seizures.

The case is Rodriguez v. United States -- and Gun Owners of America, and its foundation, were the only ones to submit an amicus brief in support of Mr. Rodriguez. The Court’s 6-3 decision sends a clear message to law enforcement, that a traffic stop cannot be extended beyond its original purpose without reasonable suspicion that would justify detaining an individual in the first place.

Heller v. District of Columbia, September 9, 2014

Gun Owners Foundation submitted a brief before the U.S. Supreme Court in Heller v. District of Columbia. GOF’s amicus brief in this case rebukes DC judges for consistently abandoning the first principles articulated in the 2008 Heller decision handed down by the U.S. Supreme Court, and we take the District Court’s opinion to task for permitting sociology and statistics to trump constitutional rights.

Not Guilty on All Counts!
-- How Gun Owners Foundation trounced the ATF in court,
October 21, 2015

Bob Arwady sure knows what it’s like to be put through the wringer.Over the past 15 years, the ATF has twice accused Bob of having committed numerous gun-related crimes. Twice Bob has refused to “take the easy way out” by pleading guilty to something he did not do. Twice he has chosen instead to put his fate in the hands of a jury of his peers. And twice he has come out unscathed, being found not guilty on all counts.

Heien v. North Carolina, June 16, 2014

Gun Owners Foundation (and GOA) submitted a brief before the U.S. Supreme Court in Heien v. North Carolina. In this case, a driver was pulled over by police — even though he had not violated the law in any way. The North Carolina Supreme Court upheld the stop and search, claiming it to be “reasonable” — even though it was illegal. GOF’s brief defends the Fourth Amendment property right to the security of one’s person. If no law has been violated, then the government has no superior interest in detaining a person or seizing property, and thus the search and seizure was unconstitutional no matter how “reasonable” the police may have acted. This case is important because it will ultimately protect gun owners from having their firearms seized. The Supreme Court will hear oral arguments in the case this fall and issue its opinion thereafter.

Courtesy GOA (Gun Owners of America)
Read more at Gun Owners Foundation: https://www.gunowners.com/

Exemplary essays

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Technology and checkpoints

With today's technology — such as radar detectors, GPS, and radio communications — some drivers can evade checkpoints. One of the reasons for these checkpoints is to arrest DUI drivers and other suspects. Knowing how to use today's technology decreases your chances of being stopped inconveniently by police and preserves your civil liberties.



Published on July 11, 2016, the lyrics to The Doves song "Pulse" remind us: “…the steady drumbeat of your “Pulse” — thump, thump, thump — is all that stands between you and eternity.”