Archive for the ‘search and seizure’ Category


Some of these ballots are lighter, some are heavier, and while this is more in the latter category, I feel that there is at least one, if not more, clear winners. Sometimes we play with the spread on these things by adjusting who wins by requiring a margin, but with this number of choices, it felt like leaving some easy ones was fair. Without further doodoo, the ballot is here.

If this is news to you, please feel free to look over prior ballots and join the fun, but your entries referring to cases that have already been decided will be set aside. More details on the appropriate tab of this website.

For every case on the podcast and in the Fantasy League, we will provide a brief summary of what to know and what to worry about.
WHAT HAPPENED: When you are a criminal defendant facing drug charges, your defenses to those charges often rank:
(1) contesting a search under the 4th Amendment
(2) disproving possession with factual evidence
(3) hoping for a mistake in the crime lab.
(Whatever last place is) alleging the police framed you and planted drugs on you.

This is not to say this never happens, but the defense itself is a Hail Mary before the Court and the Jury, as it is hard to prove and harder to believe. Within that context, consider the plight of Mr. Manuel, the plaintiff in this action. Manuel successfully alleged and proved that police officers arrested him for drugs, even though they knew he was only in possession of health supplements. Accordingly, Manuel is suing the City of Joliet for damages stemming from that arrest.

WHY IS THIS BEFORE THE SUPREME COURT:  This gets a little technical, but the basis of Manuel’s civil claim is a tort known as Malicious Prosecution.  Because of the nuances of Manuel’s criminal case, Manuel was barred from bringing the most common form of a Malicious Prosecution claim due to the Statute of Limitations. Instead, Manuel wants to bring a rarer Malicious Prosecution action which is pursuant to the 4th Amendment, because that claim has a longer Statute of Limitations.  Although many jurisdictions allow this type of claim, Manuel’s does not.

WHAT ARE THE RAMIFICATIONS: Let’s cover the more specific one first. While Manuel’s jurisdiction does not recognize this claim, all other jurisdictions do; so this is not out in left field. Plus, allowing this claim would presumably only extend then Statute of Limitations in a reasonable way, so it’s hard to see harm if SCOTUS wants to make a uniform rule for all federal jurisdictions. That being said, there’s also no harm in allowing different jurisdictions to set their own rules, and it’s hard to see a legal basis for the Court to decide that this issue warrants uniformity.  On a broader end, the entire judicial branch’s inability to ensure that police are held civilly and/or criminally liable for both willful and negligent actions has been a running subplot of 2016. This case won’t change any of those previous cases and nor will it open the door for immediate police accountability, but it’s a small step in the right direction.

ROOT FOR Manuel if you believe the facts of this case warrant the Court taking action away from individual jurisdictions.

ROOT FOR City of Joliet if you believe that jurisdictional sovereignty is worth letting cases like this pass without remedy.

PREDICTION – 6-2 in favor of the City.


It’s noteworthy that not one but two women have been billed for their cavity searches courtesy of the white-gloved Customs and Border Protection. Do you think it’s noteworthy that said cavity searches didn’t yield any of the illegal drugs they were supposed to yield? Can it be said that the bill was for wasting the CBP’s time? I mean, if you’re going to subject yourself to a cavity search, the least you could do is put some illegal drugs in there beforehand. No?

Filed under “Government Action.” A fuller story at Above the Law Lowering the Bar.

WHAT HAPPENED:  In North Dakota, Minnesota and countless other States in the Union, the State may penalize a suspected drunk driver if that driver refuses to submit a blood or breath test.  The test is requested after reasonable suspicion is established and refusal often results in penalties similar to that of a DUI.

WHY IS THIS BEFORE THE SUPREME COURT:  Despite what you may observe from watching the TV show COPS, you do not have an obligation to cooperate with police investigations.  Consent is seen as a waiver of your rights and not a required action.  In this context, the State is penalizing you for exercising your 4th amendment right against search and seizure by giving you a penalty for refusal.  Taken broadly, that’s a problem.  This case asks whether penalties for refusing blood, breath or both, are constitutional.

WHAT IS THE RULING:  This case is not yet decided.

WHAT IS THE RAMIFICATIONS OF THIS DECISION:  If the Court deems these statutes unconstitutional, that will be a significant problem in proving DUI convictions in most cases.  While many people admit to driving drunk when pulled over, many others receive less penalties by refusing the tests and depriving the State the best evidence to secure a conviction.  In this author’s humble opinion, this case probably will have the most effect on the average citizen than any other decision this term.

ROOT FOR BIRCHFIELD, BEYLUND & BERNARD IF:  As far as I’m aware, this is the exclusive list (1) Public Defenders, (2)  Hyper-strict AND liberal Constitution fanatics, and (3) drunks.  It should be noted that one person could qualify for all three of these things

ROOT FOR NORTH DAKOTA AND MINNESOTA IF: You don’t think drunk drivers are a class of persons worth giving strong protections to.

Utah police stopped the defendant after seeing him congregate around a house that was being investigated for drug dealing.  The police officer in question did not have reasonable suspicion to stop the defendant, but found out soon after the stop that Defendant had an arrest warrant.  Defendant was arrested and a subsequent search turned up drugs, which were added to Defendant’s existing charge.
Even the most nominal of stops requires the police to show some level of cause to be valid under the 4th Amendment.  Police are permitted to stop citizens for a minor search pursuant to Terry v. Ohio, provided the officer can prove a standard known as reasonable suspicion.  Here, the officer did not have any basis for the stop, so on the face of it, this case should be an easy win for the Defendant.  The issue arises because the officer could have stopped Defendant had he known of the arrest warrant, which he did not.  So the issue arises on whether or not a search lacks Constitutionality because of the officer’s subjective belief or because of the objective criteria surrounding the search.
This case is not yet decided.
Presumably if the police win, all hell could break loose.  Police are permitted a “good faith exception”, where an officer who acts reasonably on bad information gets a pass under the 4th Amendment.  This would create a bizzaro “bad faith exception” where an officer acting poorly gets a free pass if there was any basis for the search independent of the officer’s knowledge.
You enjoy the delicate balance that exists between citizens and the police, and would prefer the police avoid taking risks with our privacy.
Love dramatic irony.