Have you ever had a relative that you haven’t seen since they were a young child, later in life when they were adults. You wouldn’t recognize them. In a very profound way, that is what happened to the United States, beginning in 1968 with the advent of the case that placed us all on the slippery slope of no apparent return. A place that forefather’s would not recognize. The change is not noticed by all save the police, the lawyers and the Judges. Others simply do not grasp how step that slippery slope grade really is, and how far we has slid down the slope of tyranny. As a result, our liberty is under attack; yours and mine. This is not a plea to the radical fringe or the workers of the world to come together to dethrone the super-rich. This is not lefty propaganda. This is simply description of what has happened to the American Republic, right before everyone’s eyes with no one noticing. Below I explain why American’s civil rights are going, going, gone.
THOSE IN THE WORST POSITION TO KNOW REALITY, MAKE THE FINAL POLICY DECISIONS, FOR WHAT CONSTITUTES ORDERED LIBERTY
There is no “law.” There is no “Constitution.” There is nothing. There never has been, there isn’t, and there never will be “the law.” The only thing that there is, are a set of rules, that are selectively enforced by the executive branch of government, that mean whatever the Supreme Court says that they mean. That’s it. That’s all that there is. All of this “law” is made-up by the Courts. It really is. That’s what common law means; Judge made law.
Not so long ago Justice Scalia and Justice Breyer appeared before the Senate Judiciary Committee, Chaired by Senator Pat Leahy, in an informal discussion about the role of the Courts, why the Justices on the Supreme Court vote the way that they do, and other fascinating topics. During this discussion, Justice Scalia mentioned that he and the other Justices of the Supreme Court were the persons in the worst position to make policy decisions, because they were really totally isolated from society. However, that’s all that the Supreme Court does; it makes policy. Either by action or inaction. See, Justices Get Candid About The Constitution, National Publc Radio, October 9, 2011.
There are statutes that are enacted by the various legislatures (federal and state), and, if the Courts feel like keeping the statutes around (i.e. don’t strike them down as violative of some Constitutional provision), then they stay; at least in the form prescribed by the Courts. If you have a great ground for appeal, but the politics aren’t with you, chances are, you will not prevail. If a Court of Appeals feels like keeping you in prison, and, if they would have to release you if they follow their own set of rules, then chances are, you’re not getting released; logic and stare decisis be damned.
IGNORING TRADITIONAL FOURTH AMENDMENT CONSTRAINTS ON POLICE CONDUCT, IN THE NAME OF “OFFICER SAFETY”, HAS SUBSTANTIALLY CONTRIBUTED TO THE RISE OF THE POLICE STATE.
The Constitution of the United States is the standard for police conduct. Traditionally, although “Officer Safety” is a concern, it never was supposed to be determinate of whether a police officer can make a warrantless search of seizure of a place, thing or person. Warrantless searches and seizures have, until the last decade of the American Republic, only been justified by true emergencies. Now, the police can basically detain anyone the want to, in any manner that makes them feel safer, and the Court let them get away with it.
Now, under the guise of “Officer Safety”, the police can detain you, point guns at you, order you to lie down on the ground, order you to get out of your home, handcuff you, frisk you, confine you in a police car, and search your vehicle and your home; all without a warrant, and all without any real suspicion by the police that you have committed a crime.
Here are some examples:
In Michigan v. Summers, 452 U.S. 692 (1981), police officers were executed a search warrant for illegal narcotics a private residence. When they arrived there, they found a man walking out of the house and attempting to exit the property. The Supreme Court held that since a neutral and detached Magistrate made a finding that there was probable cause to have believed that illegal narcotics were in the house, that the police could reasonably rely on the warrant for contraband (something illegal to possess) in suspecting that anyone found at the residence could be initially detained; at least until their status was determined.
“If the evidence that a citizen’s residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen’s privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home.19 Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband20 founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.“ 21
In Summers, the Supreme Court explicitly stated that they were not holding that in non-contraband search warrant executions that persons who were not the target of the search warrant, or who were not suspected of criminal activity, could be detained:
Summers, Footnote 20:
“We do not decide whether the same result would be justified if the search warrant merely authorized a search for evidence. Cf. Zurcher v. Stanford Daily, 436 U.S. 547, 560, 98 S.Ct. 1970, 1978, 56 L.Ed.2d 525. See also id., at 581, 98 S.Ct., at 1989 (STEVENS, J., dissenting).
Twenty four years later in Muehler v. Mena, 544 U.S. 93 (2005), the Supreme Court abandoned its reasonable suspicion of criminality to detain another during a search warrant execution altogether, in the name of officer’s safety, with no connection to crime:
“Mena’s detention in handcuffs for the length of the search did not violate the Fourth Amendment. Thatdetention is consistent with Michigan v. Summers, 452 U.S. 692, 705, in which the Court held that officers executing a search warrant for contraband have the authority “to detain the occupants of the premises while a proper search is conducted.” The Court there noted that minimizing the risk of harm to officers is a substantial justification for detaining an occupant during a search, id., at 702—703, and ruled that an officer’s authority to detain incident to a search is categorical and does not depend on the “quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure,” id., at 705, n. 19. Because a warrant existed to search the premises and Mena was an occupant of the premises at the time of the search, her detention for the duration of the search was reasonable under Summers. Inherent in Summers’ authorization to detain is the authority to use reasonable force to effectuate the detention. See Graham v. Connor, 490 U.S. 386, 396. The use of force in the form of handcuffs to detain Mena was reasonable because the governmental interest in minimizing the risk of harm to both officers and occupants, at its maximum when a warrant authorizes a search for weapons and a wanted gang member resides on the premises, outweighs the marginal intrusion. See id., at 396—397. Moreover, the need to detain multiple occupants made the use of handcuffs all the more reasonable. Cf. Maryland v. Wilson, 519 U.S. 408, 414. Although the duration of a detention can affect the balance of interests, the 2- to 3-hour detention in handcuffs in this case does not outweigh the government’s continuing safety interests. Pp. 4—7.” (Rehnquist, C.J.)
This language in Muehler v. Mena is a deliberate mischaracterization (they’re not stupid; they know what they’re doing), of the Summers Court’s basis for the seizure of the occupants of the residence during a search warrant execution for narcotics. As shown above, in Summers, the Supreme Court specifically stated, that since a judge had made a determination that there is probable cause to believe that there is “contraband” at a particular home, so they implicitly had enough reasonable suspicion of criminality afoot (connection to ongoing crime) to justify detaining persons found at the home. That is, Summers only approved the basis for detaining the occupants of the home, based on suspicion that any occupants of the home were in possession of narcotics. The Majority in Muehler v. Mena has has the “chutzpah“, to predicate their deviation from the Fourth Amendment’s clear command, that their be some connection between the seizure of a person by the government, and their connection to crime; that is, other than for “civil protective custody” (i.e. taking someone medically or mentally impaired, for their own protection.
Muehler v. Mena was the first time that the United States Supreme Court permitted the seizure of a person (i.e. detention or arrest), without any suspicion that the person had been, or was engaged, or about to be engaged in criminal activity. Thus, “Officer Safety”, and not the Fourth Amendment, wins the balancing of interest contest, over suspicion of criminal activity to justify a seizure of a person. They win, you lose. Rather than simply obey the language of the Fourth Amendment (i.e. Probable Cause needed for a seizure of a person by police), slowly but surely, case by case, the Supremes are chopping-down the beams holding-up the altar of freedom.
TO FURTHER SOME SORT OF EXECUTIVE EFFICIENCY
The Supreme Court doesn’t want cops to have to learn their state laws; too difficult; notwithstanding the fact that the cops are not only responsible in their own states to know what state public offenses are, and are not, jailable under state law, but they actually do know. See, Atwater v. Lago Vista, 532 U.S. 318 (2001) (“The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seat belt violation punishable only by a fine”); Atwater v. Lago Vista, 532 U.S. 318 (2001). Atwater is a repudiation of over 200 years of Supreme Court jurisprudence, holding that searches and seizures of persons must be “reasonable.” Atwater allows the police to arrest civilians for anything that the law prohibits; parking ticket, bald tires, taillight out, and the like. Justice Souter’s rationale for permitting admittedly “unreasonable seizures” of persons like Atwater (a soccer mom, arrested for violation of the Texas seat belt statute; the maximum punishment for violation of which was a $50.00 fine) is not grounded in reality, and really set the stage of the Rise of the Police State, following the World Trade Center Terrorist Attacks of September 11. 2001.) Atwater v. Lago Vista, 532 U.S. 318 (2001) The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seat belt violation punishable only by a fine”; Atwater v. Lago Vista, 532 U.S. 318 (2001); In her stinging dissent in, Justice Sandra Day O’Connor, the Republican Conservative first female Justice of the Supreme Court, appointed by Ronald Reagan, on recommendation from Mr. Reagan’s mentor; Barry Goldwater (former Sen. R-AZ), warned about the import of Atwater:
“Such unbounded discretion carries with it grave potential for abuse. The majority takes comfort in the lack of evidence of “an epidemic of unnecessary minor-offense arrests.” Ante, at 33, and n. 25. But the relatively small number of published cases dealing with such arrests proves little and should provide little solace. Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest. An officer’s subjective motivations for making a traffic stop are not relevant considerations in determining the reasonableness of the stop. See Whren v. United States, supra, at 813. But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers’ post stop actions–which are properly within our reach–comport with the Fourth Amendment’s guarantee of reasonableness.
The Court neglects the Fourth Amendment’s express command in the name of administrative ease. In so doing, it cloaks the pointless indignity that Gail Atwater suffered with the mantle of reasonableness. I respectfully dissent.” O’Connor, J.
TO REFUSE TO SUPPRESS EVIDENCE IN CRIMINAL CASES
There is a natural reluctance by any judge to exclude evidence of criminal activity at a criminal trial because the evidence was obtained in violation of the Constitution.
There has been a complete change in judicial philosophy since the Golden Age of the Supreme Court; the fifties and sixties, when the states were commanded by the judiciary (the Warren Court), for example, to allow black persons to attend public schools with whites (Brown v. Board of Education, 347 U.S. 483 (1954), 347 U.S. 483 (1954), or to provide a lawyer to an indigent defendant in a criminal case, who might be exposed to jail time (Gideon v. Wainwright, 372 U.S. 335 (1963.))
For example, in 1950, in United States v. Rabinowitz, 339 U.S. 56 (1950), a case involving the propriety of a warrantless search of a business accused of illegally manufacturing postal stamps with government plates, United States Supreme Court Justice Minton stated:
“By the Bill of Rights the founders of this country subordinated police action to legal restraints, not in order to convenience the guilty but to protect the innocent. Nor did they provide that only the innocent may appeal to these safeguards. They knew too well that the successful prosecution of the guilty does not require jeopardy to the innocent. The knock at the door under the guise of a warrant of arrest for a venial or spurious offense was not unknown to them. Compare the statement in Weeks v. United States, 232 U.S. 383, 390, 34 S.Ct. 341, 343, that searches and seizures had been made under general warrants in England ‘in support of charges, real or imaginary.’ We have had grim reminders in our day of their experience. Arrest under a warrant for a minor or a trumped-up charge has been familiar practice in the past, is a commonplace in the police state of today, and too well-known in this country. See, Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. The progress is too easy from police action unscrutinized by judicial authorization to the police state. The founders wrote into the Constitution their conviction that law enforcement does not require the easy but dangerous way of letting the police determine when search is called for without prior authorization by a magistrate. They have been vindicated in that conviction. It may safely be asserted that crime is most effectively brought to book when the principles underlying the constitutional restraints upon police action are most scrupulously observed”. Frankfurter, J.
NOWADAYS, AS SHOWN ABOVE, “OFFICER SAFETY TRUMPS YOUR CONSTITUTIONAL RIGHTS:
“The Fourth Amendment has never been, and should not be, interpreted to require that police officers take unreasonable risks in the performance of their duties. We again borrow from the words of Presiding Justice Pierce, i.e., the law requires police officers, “live ones,” to enforce constitutional statutory, and decisional law. Here, we have balanced competing rights and conclude that “officer safety” must carry the day.” People v. Ikeda, Cal.App.4th B238600 (2012.)
What competing rights are the Court talking about in People v. Ikeda? What does the term “competing mean”? Doesn’t The Constitutions Restrictions On Government conduct obviate the need for a balancing test; the balancing of your Constitutional right to be free from being intruded upon, searched, seized and beaten by the government?
“We hold that where a person is detained outside but near his residence, the police may conduct a “protective sweep” inside the residence when there is a reasonable suspicion that a person therein poses a danger to officer safety.” People v. Ikeda, Cal.App.4th B238600 (2012.)
Apparently, the competing rights are: 1) the right of a free citizen to be free from government intrusion into their private residence, in the absence of a warrant, that was issued upon probable cause, versus 2) the police officer’s right to trample yours, because it’s always safer to search an entire home in the event that some other person is present, who could somehow, in some possible way, pose a possible danger to the police. Thus the standard set by Maryland v. Buie, 494 U.S. 325 (1990) for search of a private residence when officers effected an arrest in a private home (“The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene”), is expressly ignored by the California Court of Appeal in People v. Ikeda.
The California Court of Appeal then goes on to tell us that there are no standards for what constitutes “reasonable suspicion”, and that the officers are by their experience, in the best position to evaluate whether an officer can enter my house if you’re arrested in front of it:
“Reasonable suspicion” is an abstract concept, not a finely-tuned standard. (People v. Ledesma, supra, 106 Cal.App.4th at p. 863.) The United States Supreme Court has repeatedly warned that reasonable-suspicion determinations must be based on “the totality of the circumstances’. . . . [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person.’ [Citations].” (United States v. Arvizu (2002) 534 U.S. 266, 273 [151 L.Ed.2d 740, 749-750].). People v. Ikeda, Cal.App.4th B238600 (2012.)
All that the term “totality of the circumstances means”, in Judge / Cop / Lawyer lingo, is that the government (usually the police, the public prosecutors and private lawyers who litigate police misconduct / civil rights cases) cannot point to any specific piece of evidence, or to any specific events that show that probable cause existed for a search warrant to have issued, for an arrest warrant to have issued, or to have made a warrantless search or seizure of a person, place or thing. In other words, don’t bring facts in this argument. We don’t want to suppress the incriminating evidence against you, so we’re not going to do so. This “totality of the circumstances” approach, obviates the need to state any articulable facts in a warrant application, that justified the issuance of the warrant (search warrant or arrest warrant), or the arrest.
The Constitution protects us from governmental intrusion in our lives without judicial approval; save an emergency. For example, police officers have been prohibited since 1980 from entering private residences to make routine a routine felony arrest, Payton v. New York, 445 U.S. 573 (1980.), save some recognized exigency (i.e. no time to get a warrant excuse from the warrant requirement; See, Ninth Circuit Court of Appeals Model Civil Jury Instruction [9.14] on the basic protection of the Fourth Amendment’s warrant requirement, and the exigency exception thereto.) There’s nothing in the language of the Constitution that says the cops can’t do so. But that’s what the Supreme Court held, and they are the law. However, the Court created this protection good reason. See, Payton v. New York, 445 U.S. 573 (1980.)
Your rights are under attack. Be aware, before they’re all gone.
Jerry L. Steering
Law Office of Jerry L. Steering, 4063 Birch Street, Suite 100, Newport Beach, CA 92660; (949) 474-1849; (949) 474-1883 Fax email@example.com