awalkinthegrass

WHAT ARE THOSE IDIOTS AT THE SUPREME COURT DOING TO THIS COUNTRY??????????!!!!!!!!!!!!!!!!!

-Paul

Top Story: NORML Legal Director Explains How A Supreme Court Ruling That Had Nothing To Do With Marijuana Prohibition Can Make Police Abuse of Smokers’ Rights Much Worse -- Special to MarijuanaNews.
Posted by Richard Cowan on 2001-05-24 18:13:20
Source: www.marijuananews.com

Posted May 24, 2001
(MarijuanaNews note: I have not written about this very important ruling, because it does not directly involve marijuana prohibition, but its indirect impact may be enormous. I am grateful to Donna Shea for explaining it so well.)

The Fourth Amendment Is the Latest Victim in the U.S. War on Drugs
By Donna Shea, NORML Legal Director
Special to MarijuanaNews.

Suburban soccer mom Gail Atwater is hardly the sort of person that would pose a grave threat to a police officer’s safety. Nonetheless, police arrested, handcuffed, booked, detained in jail and prosecuted Ms. Atwater after a routine traffic stop for failing to buckle herself and her 3- and 5-year-old children into seatbelts. Ms. Atwater had the courage to complain, in civil court, that her constitutional right to be free from unreasonable search and seizure was violated during this encounter. The U.S. Supreme Court disagreed. More than that, the five-justice majority said the officer "was authorized (though not required) to make a custodial arrest without balancing costs and benefits or determining whether Atwater’s arrest was in some sense necessary."

By further abrogating the Fourth Amendment in its recent 5-4 decision (Atwater v. City of Lago Vista ) the Supreme Court added yet another weapon to law enforcement’s arsenal in the War against Americans. Contrary to common sense and all historical notions of protection against unreasonable search and seizure, it is now okay for police officers to arrest persons without probable cause for a non-jailable offense such as that committed by Gail Atwater.

Ms. Atwater was driving 15 mph in a residential zone and had failed to buckle herself and her children into their seats when she was stopped by an overzealous police officer with whom she’d had a previous, apparently unpleasant, interaction. The first time, the officer believed she hadn’t properly restrained her small child, when, in fact, she had. He was forced to let Ms. Atwater go free. In the second instance, she was indeed "guilty" of failing to belt everyone in, and was told in front of her children that she was "going to jail". Then she was handcuffed, put into the squad car (ironically, without a seatbelt) and taken to jail. All for not wearing a seatbelt, which otherwise carries a maximum $50 fine.

Based on existing Supreme Court precedent, if the officer believed he was in some danger, or if he had reasonable, articulable suspicion that a felony had been committed, or if he had even smelled the odor of marijuana smoke, then perhaps he would have been justified, under Texas law, to further investigate. But without the presence of any of these circumstances, arresting Ms. Atwater was simply unconstitutional.

In its opinion, the Court set a new standard for an officer to deprive someone of her liberty: whenever the officer feels so inclined. Taking this decision to its illogical conclusion, people can be arrested for jaywalking, taken into custody, photographed, strip-searched, have their personal items inventoried, be forced to post a bond, need to hire counsel, and ultimately appear for trial. Prior to Atwater, jaywalkers would have been issued a citation and given the free choice whether to pay or challenge the nominal-fee citation.

Similarly, anyone who drives a vehicle on the nation’s highways will be subject to arrest and a warrantless search for contraband for non-jailable offenses. For example, we can easily envision police officers in New Jersey, where unconstitutional racial profiling has been a problem, stopping African-American or Hispanic drivers for minor traffic offenses (real or fabricated), and taking those persons into custody with the singular goal of searching the vehicle for drugs.

Under Atwater, this would be permissible. Prior to this decision, an officer generally needed reasonable suspicion to search, and probable cause to arrest. Not anymore.

The Atwater decision is a stark departure from the established exception to warrantless searches under the Court’s 1968 Terry v. Ohio decision, but not too surprising given the additional decisions under the Rehnquist court which have continued to erode our Fourth Amendment protections. At the time, Terry was declared a rare exception to the requirement for probable cause. In Terry, the Court recognized that evaluating an officer’s actions required a two-prong analysis: "whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place". The Atwater decision eliminated this second element of the analysis of a police officer’s behavior in a custodial situation.

In 1977, in Pennsylvania v. Mimms, the Supreme Court, out of concern for the officer’s safety, broadened the scope of the Terry rule by allowing an officer to order the driver of a lawfully-stopped car to exit the vehicle. For many years, with occasional abuses, police seemed generally able to follow the basic Terry and Mimms exceptions to protect themselves and further the needs of law enforcement. Americans seemed quietly content with this gradual erosion of their liberties.

Twenty years later, in the heat of the "War on [Some] Drugs", and ignoring their own, other Fourth Amendment precedents that required individualized suspicion of wrongdoing, the Supreme Court in Maryland v. Wilson, extended the Mimms rule to passengers in vehicles. Police may now order a passenger out of a stopped car, may arbitrarily decide which passengers to order out of the car, which ones to arrest, and which ones to search, without the need to show that a threat existed, or that a crime had been committed.

A year before the Wilson decision, in Whren v. United States, the Court decided that an officer’s motivation for conducting a traffic stop is not relevant, if the officer had probable cause to stop the vehicle. Pretextual stops are now permissible. With last week’s Atwater decision permitting arrest for non-jailable offenses, no constitutional limitations exist to regulate placing a driver or passenger in a lawfully-stopped vehicle under full custodial arrest for a fine-only infraction. Of course, custodial arrest triggers the police power to search every person, purse, pocket, pill box and the entire vehicle without additional justification.

Sandra Day O’Connor’s blistering dissent criticized the Atwater majority opinion. She observed "... a full arrest... that justifies a traffic stop -- even though the offender cannot ultimately be imprisoned for her conduct -- defies any sense of proportionality and is in serious tension with the Fourth Amendment’s proscription of unreasonable seizures." Justice O’ Connor continued: "[b]ecause a full custodial arrest is such a severe intrusion on an individual’s liberty, its reasonableness hinges on ‘the degree to which it is needed for the promotion of legitimate governmental interests’. In light of the availability of citations... I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance." She added further: "[w]hile clarity is certainly a value worthy of consideration in our Fourth Amendment jurisprudence, it by no means trumps the values of liberty and privacy at the heart of the Amendment’s protections. What the Terry rule lacks in precision it makes up for in fidelity to the Fourth Amendment’s command of reasonableness and sensitivity to the competing values protected by that Amendment".

The cataclysmic rise in drug arrests, specifically marijuana-related arrests since the mid-1990s (from 287,000 arrests in 1991 to 704,000 in 1999) belies any common sense notion that, prior to the Court’s recent decision, police have a disincentive to progress from a traffic stop to a custodial arrest. With a citizen in the United States being arrested on a marijuana charge every 37 seconds, the likely increase in pretextual custodial arrests, along with the recently-revealed police practice of racial profiling, can only further degrade public support for the police and strain already thin local law enforcement budgets.

Justice O’Connor’s concluding remarks for the four-member dissent serves as a stark, sober warning: "[s]uch 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’." Although these statistics may not have been available to the Court in this instance, we believe in Justice O’Connor’s latent prediction of a firestorm of minor-offense arrests. "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 [this decision], the arsenal available to any officer extends to a full arrest, and the searches permissible concomitant to that arrest " [emphasis added].

At this juncture, states should enact legislation requiring further factual justification to expand the scope of a search or seizure beyond that of Terry v. Ohio, to limit the powerful incentive of a full custodial arrest as a tool for further police investigation.

Niteshift

This case wasn't really about giving cops permission to arrest people for traffic violations, only the states can do that, since the violations are a matter of state law.

The question in this case was whether or not the woman could sue the agency for arresting her over the violation. The SC said no.

What needs to be pointed out is that in some states, all traffic violations are considered criminal offense and you CAN be arrested for them, but usually aren't. In other states, like mine, most traffic offenses are considered civil infractions, so you can't be put in jail over them. The exception is is you refuse to sign the citation for a civil infraction. Not signing is a criminal offense and then you can (and will) be arrested.

Bottom line, nothing really changed. No new powers were granted nor were existing ones extended. This decision has been badly misrepresented by the mainstream media, who are ignoring the actual question, which was could she sue them.

__________________
A burning desire for social justice is never a substitute for knowing what you're talking about. -Thomas Sowell

Sometimes the light at the end of the tunnel is muzzle flash.

willy

so I hope this post is not too late to be relevant.

Niteshift should re-read(or read) Atwater v.City of Lago Vista. This case has nothing to do with her right to sue. She obviously has that right. She did it.

Her case was based on the reasonableness of the the siezure(arrest). She lost.

The Rhenquist court with it's unreasonable (pun intended) majority is saying the arrest was reasonable.

They are wrong.

Thanks

Niteshift

She did sue, and the lower court told her she had no grounds. It was appealed up to the SC, which also held she had no grounds to sue. That was her goal, to sue the department.

I stand by what I said: There has been no change, no new powers were granted.

willy

Justice Souter:

" The question is whether the Fourth Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable by a fine. We hold that it does not."

He's wrong. This arrest was unreasonable by the standards of society. This is another example of this court mis-interpreting the constitution. The 4th amendment is very clear. The key word is reasonable.

The situation was this; the two older children un-buckled as she backed and re-traced her route slowly so as to look out the window for a lost toy. The arrest was not only unreasonable it was unnecessary. This should never have gotten to the police station let alone the courts, and I don't blame her for bringing suit.

Time and again this court has ruled in such a way as to diminish the standing of citizens in favor of the standing of law enforcrement and the justice system.

Once again, this decision is wrong. The ramifications are huge. The shortsightedness of this court will go down as one of the darkest periods in our history. Decisions like this one and others, like Gates v. Illinois which allows for anonymous information to be used as probable cause for a warrant, only serve to perpetuate mistrust and fear of law enforcement in the eyes of the public. This doesn't help LE and it doesn't help the public. This is abuse of power, plain and simple.

From your posts here and on another forum I get the impression that you and I share a distaste for abuse of authority. This nonsensicsal decision only makes things worse by allowing a level of discretion by LE that would shock the framers.

http://www.findlaw.com Atwater v. City of Lago Vista

Thanks

Niteshift

Nothing new happened. They affirmed the already existing law. She tried to sue and was rejected.

"such as a misdemeanor seatbelt violation punishable by a fine."

In TX, that is a criminal violation. It always has been. In most states, like mine, traffic offenses are mostly civil infractions and you can't be arrested for them.

"He's wrong. This arrest was unreasonable by the standards of society."

He's absolutely right. It's a criminal violation. It is never unreasonable, in legal terms, to arrest someone for a criminal offense. Again, in most states that is not a criminal offense, but it is in Texas and some others.

"The arrest was not only unreasonable it was unnecessary."

It may be unreasonable, but in legal terms, it was not unreasonable. You're confusing your definition of reasonable with the legal definition. They are not the same.

"The ramifications are huge."

No new law was written here. The court merely affirmed the right of the police to make an arrest for a criminal violation. Nothing changed.

"This is abuse of power, plain and simple."

This is hyperbole, plain and simple.


There is nothing new here, I don't know how to explain it to you anymore clearly. That traffic offense is classified as a criminal offense, a misdemeanor. It is in no way, shape or form, unreasonable to arrest someone for committing a misdemeanor in my presence.

Where the problem is.........you are looking at the offense in terms of the actual violation (seatbelt), not in terms of the legal classification (misdemeanor). Personally, I think it's stupid to make not wearing a seatbelt a crime, but the legislature in TX decided otherwise. The minute it was signed into law as a criminal violation, it became arrestable. There are a lot of laws in my own state that I feel are mis-classified, but this is not a case of an unreasonable arrest. Stupid? Maybe. But not unreasonable.

And no new powers were granted. Not wearing a seatbelt in my state is still a non-moving violation. I still can't arrest someone for it. The only thing decided in this case was that police could arrest for a misdemeanor.

And this was about her suing, or trying to. If she could have gotten the SC to say the arrest was unreasonable, then the lower court would have to hear her lawsuit. There are often more fact to a case than what is simply in the decision.

willy

Her suit was heard and the ruling was in her favor. Lago Vista appealed. The appellate overturned. She appealed. The supreme court affirmed.

This has nothing to do with a lawsuit. It goes directly to whether the arrest(siezure) was reasonable. It's an interpretation of the 4th amendment only.

You admit it was stupid. The more serious stupidity was in the SC saying the arrest was reasonable.

What's new is that in states that classify traffic violations as criminal the climate has changed. Anyone is now vulnerable to intimidation and harassment, and arrest because the court says it is not unreasonable.

In Tx, as in Fla, many people carry a pistol. Do you see where this could go?

This court is made up of a group of out of touch, shortsighted dumbasses. You can justify this arrest and others like it all you want but the fact is it was unreasonable. It was stupid. It was vindictive. It was unneccessary and, thank God, she didn't kill that stupid son of a *****.

The point of the original post was the fear that this affirmation by the court will allow LE more latitude in MJ investigations is probably not as likely as the writer thinks.

What alarms me is that there will be a baring of teeth on the part of some citizens and a rush of adrenelin on the part of some members of LE. I don't want that, you don't want that and the majority on this court are too stupidly shortsighted to anticipate that it could happen.

You don't have to explain anything about this to me. I understand what you are saying and I understand perfectly what Souter is saying but you are missing the point. Given the circumstances of the case the decision is WRONG. The arrest was an UNREASONABLE siezure in violation of the 4th amendment of the constitution. It is clear. The majority is wrong. The Apellate was wrong. The District was correct.

BTW I don't engage in hyperbole. This arrest was an abuse of power. I stand by what I said.

Thanks

Niteshift

And I stand by mine. Nothing NEW was granted, nothing NEW was added.

We just have to agree to disagree.

willy

But I hope you take the time to read the majority opinion and Justice O'connor's dissent.

Those two documents taken together will, hopefully illustrate the concept of reasonableness as it pertains to the Fourth Amendment.

Thanks