You seem to be saying probable cause is needed to oreder a person out of a car? Am I right on that? If you are saying that, you are incorrect.
The de minimus part comes where a jury awards a plaintiff only $1.00 in damages because no subtstantial injury/harm took place. A non egregious 4th violation may be egregious to the plaintiff, but de minimus in damages.
A so called Mimms order is not just applicable to a stopped vehicle. An officer can approach a vehicle parked and request the driver out.
As long as a legal reason exists to seize a motor vehicle (stop it), it is permitted. If the officer only stopped the person because he was black and would not if he was white, as long as a legal reason to stop him existed, the 4th AM is not violated.
You seem to very purposefully try to get it wrong.
De Minimis is not a search and seizure doctrine. As I have explained ad nauseum, IT IS a doctrine of civil law, for instance, that a court will not entertain a lawsuit where there is minimal or no damages. It also has OTHER applications mostly in civil law.
A police officer CANNOT say, hey there’s a black guy, and for no other reason, stop his vehicle and search him, and if he does, claiming no actual harm done does not cure the constitutional defect. Yes it is true not all lawful reasons for stopping a vehicle constitute probable cause to believe a crime has been committed. Bricker has argued in the past that without probable cause, without a lawful reason, without a warrant, the fact that no actual damage occurs cures any such defects. This is NOT TRUE.
And a police officer can’t just walk up to a parked car WITHOUT A LAWFUL REASON and order people to get out and search them and then claim because he didn’t actually harm them, the search is legal.
From Pennsylvania v. Mimms, which on page 1, I noted that some seizures are de minimis;
I did not say that, read my post again. I said as long as there is a legal reason to stop a car, the fact the officer stops it because he is black where he may not if the driver were white is NOT a 4th AM violation, the remedy is under the EP Clause.
That still does not specifically answer my question of it you believed an officer needs probable cause to order a person out of a car?
hardly. This is a fourth amendment thread, specifically about Jones
You seem to try to build the strawman that I am arguing that “ALL SEARCHES CAUSE ACTUAL DAMAGE.” I am not. The Supreme Court did NOT SAY “because the otherwise unconstitutional search caused no actual damage, this defect is cured,” which would be necessary for Mimms to stand against what I AM saying. In Mimms, a valid reason for the stop existed, and I am talking about a situation where there IS NO VALID reason for the stop.
But we’re talking about the admissibility of evidence in a criminal case, not what appropriate redress a victim might have in some other suit against the police. The question is, is the evidence admissible or not?
The current state of the law allows for an officer to order someone out of a car on the grounds of officer safety, or the safety of the car’s occupants, if he has made a valid stop, if he hasn’t, in most factual circumstances since he had no business stopping the car he probably has no right to order anyone out of the vehicle. We have to remember, when asking if any such search turns up evidence and there is a question of admissibility, that 4th amendment issues turn on the facts of each case. Under the facts of Mimms, any evidence obtained was admissible. Change Mimms to the driver being stopped for an unlawful reason, and they may have ruled differently.
That would be without probable cause. But you should open up a separate thread if you wanna discuss that; here we are talking about 4th amendment search and seizure and whether or not probable cause, or warrrants are necessary for police to place a GPS on a vehicle.
In such cases, there is no cure for a constitutional defect in claiming the search did little or no actual damage.
Returning to the OP, can anyone remember another Supreme Court case in which two majorties, separately achieved, adopted alternate rationales for reaching a judgment? That, to me, is the remarkable thing about this case. And, as others have argued, Bricker’s counting one and ignoring the other is a bit like cheating. If stare decisis means anything, in a future case where mosaic privacy is implicated but not trespass, the alternate majority holding should prevail.
Since we have a great deal of our legal luminaries here in this thread, I have a related question. If one finds a GPS tracker or bug in one’s car (or house for that matter), what can one do with it? Who’s property is it? Could you legally sell it on Ebay? I read an article about someone being charged for tampering with government property for removing one but could not find how the case turned out. In the linked article about the guy finding one in a vehicle he bought from a family member the feds seem aware that he has removed the device but did not do anything about it. Of course that doesn’t mean that they couldn’t if they so chose. Does it vary whether the bug was place there by the feds, state cops, or a private investigator?
I am interested in how these laws vary around the country, but if you need a particular jurisdiction, lets say Virginia.
Probably not the best way to phrase it, but I’m pretty sure what pBear means is if there’s a case where the Concurrence has more co-signers then the actual majority opinion.
Of course, in this case, that isn’t exactly what happened, since Sotomayor wrote her own concurrence, even though on the mosaic issue she seems to agree with Alito. So Alito’s and Scalia both had an equal number of people on their opinions, and then there was another concurrence that had one person.
But in anycase, I’d be interested in knowing about historical examples of similar cases as well.
Well there’s a lot of interesting related legal-fu associated with this decision, but focusing on this case, SCOTUS made a good decision. Relying on trespass makes sense, it is the simplest way to deal with this specific case, and doesn’t require a decision to me made about mosaic. And reviewing the links I didn’t see anywhere a rejection of mosaic, but rather the more obvious trespass was sufficient to resolve this case. It’s hard to find an argument with this decision. It limits the governments ability to search without a warrant, it isn’t over-reaching, ambiguous, or ‘activist’. The most remarkable aspect of the decision is its clarity and lack of over-reach.
4 judges went for the trespass theory; 4 went for the mosaic; Sotomayer agreed with both, thus two rationales with 5 justices backing each.
I believe the “majority” opinion here was determined “majority” because the five who backed it agreed in both rationale and result. The Mosaic Justices were a plurality.
Pluralities tend to be viewed as less weighty than non-pluralities.
Maybe I’m missing something here, but wasn’t there a tie between mosaic and trespass by your math? I’m still assuming trespass was chosen because it was the simplest way to resolve this specific case. It really wasn’t an argument between mosaic and trespass anyway. It was an argument about the validity of a ‘search’, and it was a unamimous decision that this search was invalid.
I can’t think of any reason that “trespass” was the majority opinion other than non-pluralities make for better caselaw. With pluralities it is sometimes hard to argue WHY the ruling was handed down. So yeah it’s a tie, so to speak, on the rationale, unanimous however in result, with the plurality having to play second fiddle. It would be interesting to see how it would have played out if sotomayer had concurred in both rationales, I wonder how you decide who’s the majority in that instance.
I mentioned earlier that I thought I’d heard that someone got charged for destruction of government property for this, but I’ll be darned if I can find it in an internet search. Anyone got the straight dope?
Well I can’t find the reference I thought was in the parent thread.
I did find Bricker’s promise to pay $200 to my fave charity if he was wrong–which he was–but before I decide my fave charity I’m curious as to what Bricker’s MOST HATED charity is, ha ha ha.