Three legal questions rolled into one post to save bits:
Are there any other situations besides commercial air travel and international border crossings wher the fourth amendment is suspended by consent tout court, if tout court is the word I’m looking for? (Stole that bit from Wodehouse.)
If two 16-year olds have consensual sex, and some cop feeling particularly assholish sees them, can they be arrested?
I just thought perhaps the situation would differ with the Mann Act if they were in a vehicle crossing state lines in coitus transitus.
Today I passed a fancy Dunhill store where people were enjoying their cigars, watching big screen TV, etc. Any idea how the store obtained its license, here in NYC where smoking indoors is a crime of the greatest public horror?
1: Sure. Any time a cop says “Mind if I have a look around?”, and you say “yes”, you’re suspending your Fourth Amendment rights by consent.
2: Depends on the state-- In some states it isn’t even a crime for a 50-year-old to have sex with a 16-year-old. In other states, 16 is below the age of consent, but the law includes an exception for participants close in age. Though I’ll note that the title of your OP says “pre-teen”, not “teen”.
3: Apparently it isn’t as great a public horror as you thought.
As to question 1, search and seizure law is quite a bit more complex than the simple dichotomy you’ve laid out would imply. There are a host of exceptions to 4th amendment protections
plain sight - cop sees something in plain sight that gives probably cause
exigent circumstances - ‘did you just hear a scream coming from inside that apparent crackhouse/squat/bordello?’
search incident to an arrest - long story behind this one.
And those are just a few. Then we get into the really fuzzy areas like implied/constructive consent. Unfortunately I can’t think of an example of this off of the top of my head. Consent isn’t the sort of thing courts like to read into a person’s actions after the fact so I don’t think it’s very common, but that doesn’t mean they aren’t perfectly willing to do it when necessary.
You also can see that this is going to run into certain penumbral issues like privacy.
It’s my understanding that here in Massachusetts, for a cigar bar or similar establishment to be exempted from the no-smoking laws, they must receive over 80% of their income from tobacco sales. I seem to recall hearing around the time that these rules went into effect that this was stricter than New York’s similar provision. But in any event, there’s usually an exemption for cigar bars in these laws, and they’re usually pretty narrowly tailored.
Making an arrest and getting a conviction are two veeeeeerrry different things. You can get arrested for damn near anything… even if the cop knows or suspects they probably won’t get a conviction. Police have broad legal protections against “false arrest” suits.
As the saying goes, “You can beat the rap but you can’t beat the ride.”
The NYC smoking ban does have some exemptions, such as for cigar bars. There are also plenty of places that just ignore the law. The NY Times writes about this from time to time, and there are sites online that offer current lists.
Police are protected from being sued in the process of carrying out their duties. To be allowed to be sued, they have to KNOW the action they were doing was illegal and the false arrest would not be considered a violation of the law.
There was a recent case against some Boston police who arrested someone for nothing more than recording them arrresting someone else. Recording in a public place is a constutional right. (To speak freely you must also be able to gather facts freely) http://www.nytimes.com/2011/09/02/opinion/a-vital-liberty.html
As for Question #2 - at a certain point you run up against the details of juvenile law. If the actors are the same age, odds are a 15yo (or especially a 13yo) may not be tried in court for the crime. (Doesn’t mean they can’t be hauled away for something). Of course, if officer Dick tries to charge one and not the other, and both are the same age, I see a sex-discrimination suit coming down the pipe. But in the situation suggested, the slight differences in age count for something. With Britney SPear’s sister and her bf, there was some question whether the difference between 18 and 16 was less than 2 years, or more depending orn relative birthdays, plus which state the act occurred in.
In RI, the laws are similar to this. Customers in cigar stores are welcome to relax on the big cushy couches and watch the big screen TV while smoking the cigar of their choice. Customers could also bring alcoholic drinks to enjoy while smoking their cigar and watching the big game. There is serious talk of creating a smoking license which bars could purchase separately from a liquor license if they would like to offer smoking as an option in their establishment.
I think that entering a government building might be another. Many government buildings, including courthouses, require one to pass through a security screening.
Another questionable case that comes up a lot has to do with when, and under what circumstances, a cop can demand that a driver submit to any kind of blood alcohol test. What constitutes sufficient “probable cause” to allow that?
In California, it’s explicitly clear in the motor vehicle code: By the very act of agreeing to have a drivers license, a driver consents to submitting to a DUI test by any cop, any time, any where, period, end of discussion, full stop. (I’m not sure what right the driver may have to contest this after the fact.)
If I learn that this is not the law in most or all other states, I will be highly surprised.
The 4th is NEVER suspended. It still exists, it is just bypassable.
Airport luggage searches some by TSA/government agents are what are known as “Administrative Searches”, they do not require a warrant, as your examples indicate.
“Dicta” in Indianapolis v. Edmond, suggests that for national or important security purposes, a road block can be set up to catch a criminal. This would be unlike a DUI/Driver’s license checkpoint.
Part of any public indecency law is that. probably, as in Ohio’s, if the conduct is “likely to be viewed” by another, it is PI, as your question is posed as to suggest they are permitted by law to do it absent such PI restictions etc.
…Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. See 183 F.3d, at 662—663. The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control…
Didn’t catch that. I wasn’t thinking of publicly doing anything. Just if two young kids having sex indoors, in private, are doing anything illegal.
Ah, Re-read it. I was imprecisely posing the question if it is permitted by law, period. Positing an assholish cop witnessing the scene was my unthinking way of requiring an agent to invoke such a putative law.