Maybe the 2nd isn't as fixed as all that...

[arthwollipot]

The Supreme Court has just ruled that evidence obtained in an illegal search can be used against you.

The case involves a person who was stopped by police on suspicion of illegal drug activity - a stop that was later deemed unlawful by state authorities. The police then found an outstanding warrant for the man on a minor traffic violation, arrested and searched him, and found drugs on his person.

Many A2AAs here and elsewhere are convinced that the 2nd Amendment is more-or-less inviolable, and that there is no chance in the foreseeable future that it will ever be changed or repealed. But if the Supreme Court can treat the 4th Amendment so casually, what's to stop them from treating the 2nd in the same way?

This ruling drew a strongly-worded dissent from Justice Sotomayor, which you can read in its entirety here.

Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.

Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

There are a lot of ways in which this was an awful decision by the Supreme Court. But it illustrates that just because it is in the Bill of Rights, it doesn't mean that it can never be altered, as A2AAs here and elsewhere are fond of suggesting.

 

[Aepervius]

that will certainly make the scream of "activist judge" loud again.

 

[theprestige]

A2AAs?

But sure, anything can happen. Obviously the Constitution can be amended any time. The process is well-defined and no mystery.

As for the Supreme Court... all you have to do is find a case that raises the relevant Constitutional question, that wasn't adequately resolved by the lower courts, and then get a majority of the justices to vote for a novel interpretation of the amendment. It could happen, sure. I would never suggest that it couldn't be altered (though you're actually talking about re-interpreting it, not altering it). But I would suggest that at this point it doesn't seem likely.

I tend to agree with Sotomayor's dissent, but I haven't read the majority opinion yet. You wouldn't happen to have it handy, would you?

Some of the points she raises are interesting. She likens the plaintiff to "random joggers, dog walkers, and lemonade vendors"; but the analogy doesn't satisfy me. We know the plaintiff was not stopped at random. So perhaps this isn't really such a ground-breaking reinterpretation of the Fourth Amendment after all. The way Sotomayor talks about it, it looks to me like this case falls along the edge of a rather substantial gray area established by precedent. I wonder if there are similarly ambiguous regions of Second Amendment precedent, where any kind of significant reinterpretation might be made.

Anyway, I tend to side with Sotomayor, but I'm not entirely convinced by her arguments. And I don't see anything in them that suggests the Second Amendment might be on shaky ground.

 

[Cylinder]

I tend to agree with Sotomayor's dissent, but I haven't read the majority opinion yet. You wouldn't happen to have it handy, would you?

Utah v. Srtieff [PDF]

Since the OP seems to argue some connection to Second Amendment protections, I'll skip my opinions on these particulars.

The idea that this is new law is silly -- it's the attenuation doctrine. In the veiw of the majority the warrant kind of reset the clock -- absent flagrant misconduct -- for evidence not uncovered by the state's unlawful conduct. In this case it was a valid, pre-existing warrant not connected to the stop that justified a search incident to arrest.

 

[Varanid]

Isn't this case worth discussing on its own merits? Fourth amendment issues have even wider-ranging implications than those arising from the second amendment do.

Granted I am not a lawyer (but I've watched a hella lot of Law and Order episodes, so...), but I wanted to stand up and clap when I read her dissent. I believe I have a new favorite justice.

 

[BrooklynBaby]

So, would this stop have been illegal if the person stopped had no outstanding warrants?

 

[Cylinder]

So, would this stop have been illegal if the person stopped had no outstanding warrants?

It's a bit off-topic, but the court did not reach that question. The lower courts found Strieff's detention to be unlawful but carried out in good faith and found that the discovery of the warrant intervened in the otherwise unlawful detention. The Utah Supreme Court disagreed, weighting the seemingly compulsory nature of the discovery via the unlawful act against the attenuation.

I think it would be a decent topic for mature discussion outside the confines of this particular OP. Someone should make a thread.

ETA: Re-reading your question, yes -- if I follow your meaning. If the search was solely incident to the stop and the stop was considered unlawful -- which it almost certainly was -- then there would have been no real exception to the exclusionary rule.

RETA: I suggest for those interested in a discussion or consideration outside the (errr...) confines of this OP, read State v. Strieff, which has a more complete narrative of the mechanism of the detention and its justification.

 

[stevea]

So, would this stop have been illegal if the person stopped had no outstanding warrants?

The stop was unconstitutional. The police didn't have reasonable suspicion. That hasn't changed.

The main issue is that the drug evidence from the unconstitutional stop was admissible since they discovered a valid unrelated warrant and arrested the guy.

As I understand the attenuation issue in this case - there was an unconstitutional investigatory stop, but was "no flagrant misconduct" by the police. So when they incidentally found he had a warrant for a traffic violation, the subsequent arrest was valid. They then discovered the guy has meth on him after arrest for the traffic warrant. The were plenty of precedent citations w/ detailed conditions in the opinion.

Gives me a little heartburn wrt the potential for abuse (who defines flagrant?), but it seems reasonable on the surface.

 

[stevea]

Isn't this case worth discussing on its own merits? Fourth amendment issues have even wider-ranging implications than those arising from the second amendment do.

Granted I am not a lawyer (but I've watched a hella lot of Law and Order episodes, so...), but I wanted to stand up and clap when I read her dissent. I believe I have a new favorite justice.

Government agents of the TSA violate the 4th amendment for almost 2 million ppl per day. No suspicion, no probable cause, no warrant, no specificity and they can and do search your person, effects and papers for evidence of any crime on this basis.

No one can make that jibe with ....

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.

This case is nothing by comparison.

 

[blutoski]

Government agents of the TSA violate the 4th amendment for almost 2 million ppl per day. No suspicion, no probable cause, no warrant, no specificity and they can and do search your person, effects and papers for evidence of any crime on this basis.

No one can make that jibe with ....


This case is nothing by comparison.

This is why the StingRay devices are controversial. A blanket interception ("in good faith") of local calls, police are I guess within their rights to scan participants against a database for outstanding warrants, and based on that, legally search hundreds of otherwise random people within the broadcasting area for contraband.

 

[Skeptical Greg]

With regards to the TSA:

No one forces anyone to go through airport security.
One agrees to he procedures when they step in line...

 

[blutoski]

With regards to the TSA:

No one forces anyone to go through airport security.
One agrees to he procedures when they step in line...

I think there's also an expectation of reasonableness. Nobody forces me to step out of my house, but if my only choices are a cavity search vs staying housebound, it's a sign of oppression.

Extreme example, but the point is that we get to debate where we draw the boundary. For some people, TSA's Security Theatre is a pointless invasion of privacy.

 

[Bob001]

Numerous observers have made the point that the current "guns for everyone everywhere all the time" is a relatively recent interpretation of the Constitution, spurred by the NRA and the gun industry. For most of U.S. history, privately owned firearms were subject to limits. In small towns in the old West, visitors were routinely required to check their guns with the sheriff. And of course, they didn't have AR15s and high-capacity magazines. A new Supreme Court could certainly determine that "well-regulated" means licensed and registered, a "militia" is an organized unit of state government like the National Guard or state police, "arms" refers to such weapons as would be suitable for civilian personal use, and "the people" refers to citizens collectively, not any specific individual.
http://www.politico.com/magazine/story/2014/05/nra-guns-second-amendment-106856
http://www.guncite.com/burger.html
http://www.washingtonexaminer.com/j...-to-banning-automatic-weapons/article/2510773
http://www.salon.com/2013/01/14/the_nra_once_supported_gun_control/

 

[Skeptical Greg]

When the 2nd was penned, " well regulated " meant "well equipped"...

 

[Noztradamus]

When the 2nd was penned, " well regulated " meant "well equipped"...

What the language of the 2d Amendment means now is what the Nazgûl says it means

 

[Bob001]

When the 2nd was penned, " well regulated " meant "well equipped"...

Another interpretation is that it meant "well-equipped" AND "well-trained." After all, if they were supposed to serve as a military force, they would have had to have suitable, approved weapons and military training. Both "well-equipped" and "well-trained" would certainly be subject to interpretation by authority, not something a citizen could decide for himself.

Maybe that's the solution: Every firearms owner should be required to complete three months of Army basic training, followed by group drills every second weekend for life. After all, you never know when those crazy Canadians might come rushing across the border.

 

[Skeptical Greg]

Every firearms owner should be required to complete three months of Army basic training,

I don't have a problem with that, if Marine basic counts...

 

[arthwollipot]

A2AAs?

American 2nd Amendment Advocates. It's an abbreviation that I've started using recently.

Isn't this case worth discussing on its own merits? Fourth amendment issues have even wider-ranging implications than those arising from the second amendment do.

I particularly intended to draw a comparison between the 4th Amendment and the 2nd, but you're free to discuss the case however you like. It certainly is worth discussing on its own merits.

 

[Bikewer]

As someone who's been in the business for a long time, I can say that these case-law decisions are constant and ongoing and fluid.
We get monthly online training put up by the law school at the university of Missouri. About half of these sessions deal with search-seizure law and related decisions by various courts.
It's almost impossible to keep up with all these. Even crusty old law professors have complained bitterly about the police simply not being able to keep up with the constantly changing law in these cases.

I know from previous cases that evidence obtained in cases where the stop or search was technically improper, but the officer was acting in "good faith", was found admissible...

 

[TubbaBlubba]

I know from previous cases that evidence obtained in cases where the stop or search was technically improper, but the officer was acting in "good faith", was found admissible...

I seem to recall that there is some landmark case law for this, in order to reduce the amount of "acquittals by technicality".