SCOTUS: Police and changing law

[MP301]

I started getting the SCOTUS Blog around the Nordyke Orals. For anyone interested in how SCOTUS ticks, this is the best resource I have seen. I suggest you sign up ion the mailing list.

Anyway, I just got this email and it is quite interesting regarding the on again/off again views on 4th Amendment protections. All of you that think that relying on the 4th A to protect you should take another look at it.

I know this is not directly 2A, even though the two main cases discussed involve Firearms, so Im sure the MODS will move it if they deem it in the wrong Forum.

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SCOTUSblog


Argument preview: Police and changing law
Posted: 18 Mar 2011 01:42 PM PDT
At 10 a.m. Monday, the Supreme Court will hold one hour or oral argument on Davis v. U.S.
Background

Weeks v. U.S., as a limit only on federal prosecutors, since the Fourth Amendment at that time did not even apply to state and local government activity. The Court extended that Amendment, and with it, the exclusionary rule, to state and local governments in the 1961 case of Mapp v. Ohio
The Court, however, carved out a major exception to the rule in its 1984 decision in U.S. v. Leon


Davis v. U.S. (09-11328).

Davis, ordered out of the car by the officer, removed his jacket even though the policeman told him not to do so. He put it, withone pocket now zippered, on the front passenger seat of the car. Someone standing around at the scene knew Davis, and told officers his real name. Davis was then arrested for giving a false name, was handcuffed, and put in the back of a police car. An officer then returned to the car, searched the jacket, and found a revolver in the pocket that Davis had zippered.
Later, Davis was charged with being a felon who had a gun illegally. Before his conviction on that charge, Davis sought through his lawyer to have the gun barred as evidence, but that challenge was denied, and the gun was offered at the trial. Davis was convicted of the charge, and was sentenced to 220 month in prison.
New York v. Belton
BeltonArizona v. Gant. After Davis was convicted, and his appeal was at the Eleventh Circuit Court, the Supreme Court decided Gant, casting aside a string of lower court rulings that had given an expanded interpretation of police authority under the Belton precedent. The Gant
The Eleventh Circuit, however, ruled that, while the GantBelton precedent, the Circuit Court said, so they were not at fault constitutionally in making the search. Relying on a Circuit Court precedent, even though later overturned, was akin, the appeals court said, to relying on an invalid arrest warrant in the U.S. v. Leon

Petition for Certiorari




U.S. v. Gonzalez
Gonzalez, obviously holding it for the coming decision in Davis.

Cont....

[MP301]

Merits Briefs
Willie Davis’s brief on the merits provided a strong plea for the Supreme Court to protect its own institutional powers. Its argument summary opened this way: “This is a case about the role of the Supreme Court in the development of Fourth Amendment law. The Supreme Court occasionally must correct a mistaken precedent and set Fourth Amendment law on its proper course. When this happens, the Court has always retained the power to enforce its new decision through the exclusionary rule….This case tests whether the Court should adhere to its traditional rule or should instead embark on a new experiment.”
What the adoption of a new approach, a new “good faith” reliance on precedent later cast aside, would do, the brief contended, is to make all new Fourth Amendment decisions by the Supreme Court apply only to future cases, essentially failing to correct the error in the case in which a new rule was announced and thus emerging only in an “advisory opinion” — something federal courts are not authorized o issue.
The brief then listed three reasons why the Court should avoid that tack. First, it would run against long-standing precedent, which applies new rules to all cases still pending on direct review; second, it would mean that the government would always win, so there would be no case-or-controversy for the Court to decide when any settled precedent is challenged anew; and, third, it would take away the Court’s power to correct mistakes, since criminal defendants would have little incentive to seek new rules of law, turning the Fourth Amendment’s development into “a one-way street in favor of expanded government power.”
Davis’s lawyers also argued that the Court should hesitate to create another exception to the exclusionary rule because it has already poked many holes in it, so that “a defendant must successfully navigate a long trail of doctrines before courts actually grant relief” under the rule. Because of that situation, the brief added, a decision not to create the new exception would result in only “modest costs” to law enforcement.
Like the Ninth Circuit’s approach to this dispute, the Davis brief relied quite heavily upon the notion that the Supreme Courts’ precedents on applying new rules of law retroactively — at least to all cases in which convictions have not become final — will be compromised if new developments in Fourth Amendment law do not have a real-world impact.
The Justice Department’s brief on the merits is a singularly focused document: the exclusionary rule has one, and only one, function, and that is to deter police misconduct. The decision that created the “good faith” exception to the rule — U.S. v. Leon – “reasoned that, because the exclusionary rule is designed only to deter future misconduct, suppression cannot further the rule’s ends in any appreciable way if the officer’s conduct was objectively reasonable,” the brief argued.
Just as the Court has adopted extensions of the “good faith” exception, according to the government, it should use the same logic to permit the use of wrongly obtained evidence “when an officer relies on binding appellate precedent.” It is “objectively reasonable” for an officer to rely on a court ruling in effect at the time, even if that ruling should later be overturned, it asserted.
This argument, of course, is strongly dependent upon Fourth Amendment jurisprudence relying upon the flexibility of the word “unreasonable.” The Court, when it has pared back the protection of that Amendment, has done so by relying upon that flexibility.
Suggesting that Davis’s lawyers are trying to establish a new rationale for the exclusionary rule — that is, it gives defendants an incentive to challenge existing Fourth Amendment law, the Department argued that this runs counter to the single principle that the rule is justified only by a deterrence rationale. A deterrence of defendants’ lawsuits is not what the Court meant in adopting the rule, the brief suggested.
Moreover, the government contended that defendants clearly do not lack incentives to go on making new Fourth Amendment claims, and there is always the prospect that conflicts will develop, given that there are 12 federal appeals courts and 50 state court systems weighing such claims. Moreover, the Department added, the availability of civil damage lawsuits aimed at police for alleged misconduct will encourage police and local governments to foster proper police behavior.
Finally, the government sought to directly counter Davis’s argument that there will be little social cost if police are not allowed to rely on existing precedent to excuse conduct that later turns out to have been unlawful. In return for only “marginal” benefits to defendants, such a doctrine would result in heavy social cost, not only in impairing the “truth-finding function of trials,” but also in “releasing guilty defendants” and “damaging the public’s perception of justice and chilling valid police activity vital to public safety,” the U.S. brief said.
The case, for all of its potential importance, has drawn only modest amici involvement. Only one such brief supports Davis: by the National Association of Federal Defenders. The Justice Department has attracted the support of 29 states, the Criminal Justice Legal Foundation, and Wayne County, Mich.
The most aggressive of the amicus filings is the Criminal Justice Legal Foundation’s brief, arguing that “no other doctrine in modern American law has so seriously diminished the law and the judiciary in the public mind” as has the exclusionary rule.” While this brief does not advocate the complete overruling of the rule, it did assert that the rule “should be confined to its minimum possible scope,” contending that “when it is invoked, it is almost always used to suppress reliable evidence….The exclusionary rule is the greatest legal engine ever invented for suppression of truth.”


Cont....

[MP301]

Analysis
Anyone inclined to make an easy prediction about the outcome of Willie Davis’s appeal should pause and re-read the Court’s decision two years ago in Arizona v. Gant – the precedent that Davis very much wants applied to his case. The scrambled voting pattern in the Gant decision suggested that, for the Court, Fourth Amendment law is as challenging an area as any part of the criminal law, and does not yield clear patterns.
Two of the Court’s most conservative members — Justices Antonin Scalia and Clarence Thomas — were in the majority in Gant, along with liberal Justice Ruth Bader Ginsburg, and two liberal Justices now off the Court: David H. Souter and John Paul Stevens (the author of the majority opinion). In dissent were Chief Justice John G. Roberts and Justice Samuel A. Alito, Jr., usually counted among the conservatives in criminal law matters, Justice Anthony M. Kennedy (centrist in many areas, conservative most of the time on criminal law), and moderately liberal Justice Stephen G. Breyer.
Stevens has since been replaced by Justice Elena Kagan, and Souter by Justice Sonia Sotomayor. The chances are that, had they been on the Court for Gant, they might well have been in the majority for recasting police search authority following traffic stops.
Will the Court be as scrambled when it switches from substantive Fourth Amendment law to the exclusionary rule and its “good faith” exception? Again, caution is in order when predicting: Justice Scalia is one of the exclusionary rule’s most fervent critics, and very likely would — if he had four other votes — overturn it entirely. The Criminal Justice Legal Foundation’s amcus brief in this new case could provide all of the rhetorical complaints that Scalia would need to wipe out the rule (although he might well have a few more colorful comments of his own.)
The Justice Department, of course, has sought to make it very easy for the Court to reject Willie Davis’s plea: the exclusionary rule has only one single purpose, deterrence of police misconduct, and Davis simply cannot show that his preferred approach would have that effect, according to the Department. Its merits brief has done a creditable job with its suggestion that Davis’s brief is too adventuresome for a Court that is, at a minimum, ambivalent about the exclusionary rule.
Davis’s lawyers, it is clear, are gambling on the Court seeing the case as a threat to its capacity to make its own rulings binding law on lower courts, and on the Court’s willingness, therefore, to have some policy objectives to justify the rejection of this new “good faith” exception to the rule. That approach clearly has rhetorical merit, but it could run up against the simplicity and the hard logic of the government’s argument.
The Justices’ mood and questions during oral argument will bear close watching.

Petition of the day
Posted: 18 Mar 2011 12:38 PM PDT

The petition of the day is: Title: Eli Lilly and Company v. Sun Pharmaceutical Industries
Docket: 10-972
Issue(s): Whether the Federal Circuit Court Circuit erred in holding that when a chemical composition has been patented, a second patent may not be issued for any use of the composition that was disclosed in the text of the composition patent.
Certiorari stage documents:

• Petition for certiorari
• Amicus brief of the Biotechnology Industry Organization
• Amicus brief of Patent Docs
• Amicus brief of the Pharmaceutical Research and Manufacturers of America
• Amicus brief of the Washington Legal Foundation

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[voiceofreason]

Thank you for sharing about the blog. Will follow.

[MP301]

Here is the link for anyone else who wants to subscribe..

http://www.scotusblog.com/

[anthonyca]

Gene has a great quote in his sig. ( I'm on my phone but this is the jist of t)
The left hates guns and the right hates rights.

It is very important that we teach about the whole constitution. So many second gun lovers I know think that the fourth amendment is just for criminals.

[press1280]

http://www.ctgunrights.com/0.2nd.Cir...led_031811.pdf (hat tip to Ed Peruta)

This is a 2nd/4th Amendment case in the 2nd Circuit. The police think that simply because someone's nervous near someone open carrying, it gives them probable cause to go handcuff, disarm, and check someone for a permit. They also argue they can do it because even though it's lawful, it's something very few people do(open carry).

It'll be interesting to see if one of these cases (2A/4A) ends up at SCOTUS, especially if they find LOC is protected and CCW isn't.

[Gray Peterson]

Wow:

"Finally, the government sought to directly counter Davis’s argument that there will be little social cost if police are not allowed to rely on existing precedent to excuse conduct that later turns out to have been unlawful. In return for only “marginal” benefits to defendants, such a doctrine would result in heavy social cost, not only in impairing the “truth-finding function of trials,” but also in “releasing guilty defendants” and “damaging the public’s perception of justice and chilling valid police activity vital to public safety,” the U.S. brief said.

Boo-friggin-hoo.

[Crom]

Very interesting. Davis's lawyers are exploiting a circuit split in the lower courts. Good for him. The fourth amendment right is very important. I do not like how the SCOTUS has weakened it over the last few decades. I recently heard it said that the 4th is dying a death from 1000 cuts. If a right is chipped away at long enough then one day there will be nothing left.

[Wherryj]

Very interesting. Davis's lawyers are exploiting a circuit split in the lower courts. Good for him. The fourth amendment right is very important. I do not like how the SCOTUS has weakened it over the last few decades. I recently heard it said that the 4th is dying a death from 1000 cuts. If a right is chipped away at long enough then one day there will be nothing left.

I disagree with the statement that the fourth amendment is dying-it died about half a century ago. No one attended the funeral because the media didn't cover the event. No one noticed.

[Apocalypsenerd]

For our society, the restoration of property rights will need to be fought for and driven. Hopefully, some of the 2A wins the people involved with this board get will help bolster the 4A. You never know, it might win some of the lefties over to a pro-2A stance.

[yellowfin]

Perhaps the most blatantly ignored amendment in the Bill of Rights is the 9th Amendment, which when properly applied would get rid of probably half or more of all of the federal and state laws of any kind on the books. We are NOT meant to be as overregulated as we are now--everything we do, own, say, buy, sell, read, use, eat, and say should NOT have to have lawyers and bureaucracy attached to it. There does NOT need to be laws for even 1/3 of it yet there is a law and an agency for almost everything these days.

[MP301]

Perhaps the most blatantly ignored amendment in the Bill of Rights is the 9th Amendment, which when properly applied would get rid of probably half or more of all of the federal and state laws of any kind on the books. We are NOT meant to be as overregulated as we are now--everything we do, own, say, buy, sell, read, use, eat, and say should NOT have to have lawyers and bureaucracy attached to it. There does NOT need to be laws for even 1/3 of it yet there is a law and an agency for almost everything these days.

No one ever brings up the 9th. How about some highlights cause we know your more up on it then most?