Supreme Court Weakens 4th Amendment Traffic Stop Requirements

The U.S. Supreme Court today upheld a defendant’s conviction for possession with intent to deliver a substantial quantity of marijuana. At the heart of the case is whether the police lacked the probable cause necessary to conduct a traffic stop. During the traffic stop, the California Highway Patrol officers noted a strong odor of marijuana emanating from the truck, searched it, and found approximately 30 pounds of marijuana in the truck’s bed.

According to the police, they received a 911 call from an individual traveling south on Highway 1. The caller stated that she had just been run off the road by a silver, Ford F-150, which was traveling in the same direction as her. The California Highway Patrol responded, locating the truck roughly 18 miles further south on the highway. From the time the tipster called 911 to the time the CHP pulled the defendant over, less than 20 minutes had elapsed.

First, the Court’s 5-4 opinion was a very odd alliance of justices. Justice Thomas wrote the decision in which the Chief Justice, Justices Alito, Breyer, and Kennedy joined. Justice Scalia drafted the dissent in which Kagan, Sotomayor, and Ginsburg joined.

The case tested whether an anonymous tip, reported through the state’s 911 system, was sufficient to form the foundation of probable cause necessary to commence a traffic stop. The majority answered the question in the affirmative, noting that the caller provided a great degree of detail about the truck, including the make, model, license plate number, the direction of travel, and the severity of the legal infraction alleged: running a car off the road. According to the Court, this combination of information provided a sufficient “indicia of reliability” upon which the police could rely.

The “indicia of reliability” having been established, the CHP had the requisite probable cause to initiate the traffic stop. Once the traffic stop was properly initiated, the police could engage in whatever sensory perception (sight, smell, experiential observation, etc.) to further an investigation.

The dissenting opinion disagreed, stating that the majority’s opinion will undermine existing 4th Amendment jurisprudence, but elevating the extent to which law-enforcement can rely on a single, anonymous tip. The majority’s opinion, according to Justice Scalia, will vitiate the requirement that law enforcement obtain corroborating evidence prior to initiating a traffic stop. The dissent also challenged the majority’s perception as to the “indicia of reliability” on the basis that any person driving south on Highway 1 could have observed the vehicle and further challenging the preposition that a call to 911 has an enhanced degree of credibility as an “excited utterance.”

Generally, the majority’s opinion is troubling, principally due to law enforcement’s tendency to push the envelope with respect to traffic related investigatory stops. I concur with the dissent, that this case provides a weakening of existing standards. It provides law enforcement with a broader justification for commencing traffic stops, elevates the role of the “anonymous tip,” and detracts from the requirement that law enforcement obtain evidence corroborating the anonymous tip prior to an investigative detention.

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Billing a 29 Hour Day

From the ABA Journal, there is an attorney in Ohio who billed the state for a 29-hour work day. According to the story, he also billed for a 23, 21, and 21.5 hour work-days. Even more incredulous is that he claimed to have worked the hours while representing the indigent poor. While he may be a zealous advocate, I sincerely doubt that he a) Looses too much sleep fulfilling this role; and b) Has the power to add 5 hours to a day…

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Google and the Wiretap Act

In a recently released opinion, the Ninth Circuit decided that Google was not entitled to the protection under the Wiretap Exemption of the Wiretap Act.

When collecting the pictures and other data necessary for Google Street View, Google collected data from open home and business wifi accounts. Google tried to hide behind the Wiretap Act, but the District Court and Ninth Circuit disagreed, finding that home and wireless networks were not “readily accessible to the public.”

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A PR Catch-22

Here is an interesting case: The Pittsburgh Zoo has been sued by a mother whose child died at one of the exhibits. The mother stood her child on the railing of the African Painted Dog exhibit and turned her back. The child fell into the display, bouncing off the safety net into the exhibit, and was mailed to death.

The mother sued the zoo. In its defense, the Zoo asserted all available defenses, including
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Thoreau and Emerson on Government

Emerson on Government

Emerson on Government

Thoreau on Government

Thoreau on Government

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William Blackstone and Soldiers

William Blackstone on Soldiers

William Blackstone on Soldiers

“In a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitution, which is that of governing by fear: but in free states the profession of a soldier, taking singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and its laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier.” ~ Sir William Blackstone, 1 Commentaries *395

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What is a Violation of the Third Amendment?

In an interesting case discussed by the Daily Caller, a family from Henderson, Nevada is suing the local police for violating their Third Amendment protections and right to privacy. By way of review, since the subject is so ubiquitous in today’s plethora of Constitutional litigation, the Third Amendment provides that “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

I can find only one case that substantively addresses the Third Amendment in any detail. This case, Engblom v. Carey, 677 F.2d 957 (2nd Cir. 1982) involved the actual housing of New York National Guard troops during a strike by Corrections Department Officials. In that case, the State of New York called up the National Guard to “cover” for the striking prison guards. The Second Circuit held that Guardsmen could be considered soldier and that the forced housing of those Guardsmen could state a viable Third Amendment claim. Now, the Second Circuit simply reversed the trial court’s dismissal of the claims, and did not discuss the substance of them.

I think the greater issue(s) here involve the Fourteenth Amendment, the Fourth Amendment, and possibly the Fifth Amendment. According to the story, the policy wanted the use the residence for a “tactical advantage” during a domestic dispute between the Owner’s neighbors. This, to me, admits a couple key factors: (1) The use of the house was preferred, but not essential; (2) The police did not obtain a warrant of any form; (3) The police probably did not have sufficient probable cause to obtain a warrant; and (4) The use of force against the family, who simply exercised their right to decline assisting the police. From all accounts, the residents were perfectly law abiding, they just happened to be in the wrong place at the wrong time.

Finally, I am not sure the “police” fall under the definition of “soldier,” and given the historical context of the Third Amendment (prior to, and during the Revolution, colonists were forced to house British soldiers, known as “regulars”), I highly doubt the aggrieved family will have much success on this claim. While the aggrieved family certainly has a a “reasonably expectation of privacy,” “Police” are probably not “soldiers,” and the duration of the “occupation” is probably insufficient to be considered “quartering.”

So, while I think the aggrieved family endured multiple violations of their Constitutional rights, privileges, and protections for which the local police should answer, I do not believe that the claimed Third Amendment violation will stand.

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Purpose of Law

John Locke Meme

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Federal or State Jurisdiction in Tax Exempt Challenge?

Should federal regulations and engaging in “foreign” company management defeat a plaintiff’s attempt to keep a challenge to tax exempt status in state court? That is the question Judge Joy Flowers Conti of the U.S. District Court for the Western District of Pennsylvania must answer. The City of Pittsburgh has challenged the tax exempt status of the largest employer and health care service provider in Western PA — the University of Pittsburgh Medical Center (UPMC).

The questions central to the case are quite interesting, for purposes of federal jurisdiction. On the one hand, the City of Pittsburgh has only challenged whether UPMC is truly a “charitable organization” as that term is defined by Pennsylvania law. On the other hand, the Commonwealth does rely on IRS regulations and on whether the business has qualified as a 501(c)(3) organization. Furthermore, the City of Pittsburgh wants to point out (though in a similarly confusing manner, not rely on) the fact that UPMC manages health care organizations outside the borders of Pennsylvania and does so “for profit.”

In this case, I do not envy Judge Flowers Conti, as her decision will be appealed, regardless of how well it is reasoned.

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Supreme Court Narrows Employment Discrimination Claims

In tandem decisions, the Supreme Court constricted Title VII lawsuits against employers. In the first decision (University of Texas Southwestern Medical Center v. Nassar), the Supreme Court ruled that an employee alleging a retaliatory firing must prove that the employer’s discriminatory conduct caused the termination; in the second decision (Vance v. Ball State University), the Court narrowed the definition of “supervisor” for purposes of an employer’s vicarious liability in discrimination suits.

Before University of Texas Southwestern Medical Center, a terminated employee needed only to establish that the prohibited discrimination was a “motivating factor for the adverse employment decision” for liability to attach to the employer. The ruling yesterday changed that standard to the “but-for” test of causation. This means that the terminated employee must now prove that “but for” the unlawful employment practice (discrimination), he would not have been fired.

In the second decision, the Supreme Court narrowed the definition of “supervisor” for purposes of an employer’s enhanced liability in Title VII harassment suits. The 5-4 decision, authored by Justice Samuel Alito stated that an employee must have the authority to hire or fire employees to qualify as a “supervisor” in order for an employer to be vicariously liable for the employee’s discriminatory actions.

The practical effect of these decisions will be to make Title VII harassment/discrimination claims much more difficult to prove. With respect to adverse employment actions, a disaffected employee must prove that “but for” the discrimination, he or she would not have been fired. Secondly, plaintiffs will have to establish either that the harassing employee had the authority to “hire, fire, demote, or discipline” the plaintiff or that the employer was negligent with respect to the harassing/discriminatory claims about which it was aware.

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