Oh, good! A New Constitutional Theory of Privacy!

Great Debates
221

Can the police operate a DUI checkpoint, wave you over to the side of the road and keep you waiting for five minutes before checking you through?

They have no suspicion whatsoever tying you to any criminal activity.

Yes, they can. In Sitz, the Supreme Court held that yes, stopping the cars was a seizure, but since it was a tiny, small, insignificant seizure, it was permissible under the US Constitution.

Michigan State Police v. Sitz, 496 U.S. 444 (1990).

The majority opinion does not attempt to quantify the gas wasted by idling for five minutes, but they did not find that amount of gas significant enough to change their minds. The opinion is also silent on the weight of any molecules of rubber lost from the tires during the stop, the molecules of air that diffuse through the tire walls during that time, the microergs of energy required for you to roll down your window to speak to the officer, and the energy consumed by your body when you generate speech.

Just to anticipate your next set of arguments.

222

Ok I will concede that not all justifications for stopping a person (or otherwise interfering with a constitutional right) must rise to probable cause. But the general idea that the police officer/government must have a valid reason still stands. In my example, a Led Zeppelin shirt does not cut it and this infirmity IS NOT CURED by the fact that it is a minimal intrusion.

Officer safety does justify a patdown, but that does not mean that because somebody somewhere may seek to harm a policeman the policeman can now just patdown everyone he sees. He first must have a cause to stop someone, and I grant that some kinds of suspicion justify this. But with Terry as an example, with nothing more than the police officer’s suspicion that the individuals were casing a job (burglary/robbery) if the police officer hadn’t found the guns, he would have had to let them go, as his suspicion does not warrant anything more than a brief questioning. (I am assuming the defendants would not have confessed to a conspiracy, if they did, he could arrest them.)

Nothing I have yet read involving Jones offers any more of a reason for police interest other than he is/was the owner of a nightclub. The fact that attaching a GPS is only a minimal intrusion does not cure such a constitutional infirmity.

This is in contrast to the GPS cases you cite where probable cause is always demonstrated before the government activity. Or Mimms, where the officer has a valid trafffic stop to begin with, even though that is not ordinary “probable cause.” After the government activity is justified, then we do not concern ourselves with de minimis problems. If the government activity impinging on a right is not otherwise justified, de minimis does not cure it.

It is not OK to run around patting down everyone you see because it is minimal. It is ok to pat down someone when you suspect them of a crime. Once you have a good reason to stop them, then further minimal intrusions are OK.

223

Let’s use a DWB (drive while black racial profiling) example.

The police officer can offer no justification for a traffic stop other than his racial profiling.

No-one is claiming this is ok because the stop is minimal, (possibly other than racists.)

A valid reason for stopping the motorist is first needed to justify detaining him. The fact that the stop is only of a short duration does not cure the infirmity.

(But if this is a civil case suing the officer for the stop, and plaintiff cannot show anything other than de minimis damages, it may be proper to dismiss, but thats a whole different ballgame.)

224

How about Sitz and the DUI checkpoint?

225

In my opinion, NO, the DUI checkpoint is constitutionally infirm unless the motorists are free to turn around and avoid the checkpoint, and unless the police are searching for a specific drunk driver they have good suspicion or probable cause to believe is out there. But I agree that is not how the courts have ruled on the issue.

Nevertheless, this is not exactly on all fours with our current problem, which always involves the police focusing on an individual.

However, my opinion is different if say, a murder occurs in a building, and the police want to pat down all the occupants in the building for the murder weapon or some other evidence of the crime. In that case, they know a specific crime has been committed, and the detention is justified. But there they have probable cause, and it is reasonable enough to say that any one of these people could have done it.
Just to anticipate your next set of arguments, airport checkpoints are voluntary, if you don’t wanna do it, then don’t.

226

Ok reading Sitz, my opinion is a bit different than that stated above, because the checkpoint was publicized in advance.

This is a very large distinguishing factor since in Sitz people have an opportunity to avoid the checkpoint. There was no such publication of the police activity in Jones allowing him a choice as to whether he could waste his gas or not.

I wouldn’t advise any lawyer to cite Sitz as a precedent for Jones, at all, for that reason alone, but I will finish Sitz and tell you of any other reason the facts do not closely match enough to apply it.

At any rate, as long as you consider the public safety a valid justification, some other jsutification has come first, then the de minimis intrusion, as in all other cases you cite and unlike Jones, as I understand it.

227

Kind of a useless discussion, then, isn’t it? I provide cites for analogous caselaw. If you can gin up a way to distinguish the cases, you do – perffectly proper, of course. But when you can’t, you simply announce that you disagree with the Court’s decision.

That reduces the discussion to tautological absurdity. You simply have a different opinion on some major points of Fourth Amendment law than the Supreme Court does. You wanted a case that showed acceptance of a constitutional violation because the intrusion was minimal and premised on no particular suspicion. I gave you that, and your response is, if effect, “Yeah, well, the Court got it wrong there, too!”

If those are the possible outcomes, there seems little point in continuing this discussion. If I find a case that shows what you claim doesn’t exist, your answer is that the Court erred. Which is what you’ve claimed about this line of cases, too.

228

Furtherly distinguishing Sitz:

“It is important to recognize what our inquiry is not about. No allegations are before us of unreasonable treatment of any person after an actual detention at a particular checkpoint.”

Emphasis is the S. Ct.'s.

Sitz is not a valid precedent for your proposition. We have always discussed individuals who have such allegations previously in the thread.

229

Not quite an accurate way to describe the discussion. You first took issue with my opinion, which is a foolish thing in my opinion, leading to the ridiculousness you complain of, but it is you who set out to prove my opinion wrong.

To furtherly clarify, I will not claim a disagreement of opinion when I state the law.

I am actually stating what is not the law, that is, a de minimis doctrine being used to cure a constitutional infirmity where there is no legitimate reason for the violation in the first place.

As I have pointed out Sitz is distinguished.

I have tried many different angles to make sure of what your position is, and even where in the example where the police officer admits he has no reason for the stop other than the heck of it since the target of his activities didn’t have anything better to do, YOU STILL claimed that de minimis justifies the taking, and rahter than claiming it is your opinion, you are stating it is the current state of the law. This justifies asking for a citation. since you are claiming it as a fact. If you wanna say that the de minimis doctrine per se cures constitution violations as your opinion, I have no argument.

OTOH if you accept the facts as premised in the Led Zeppelin shirt example (rather than hinting around that there was a better reason than stipulated if only the prosecutor had asked more questions) I think we might be agreeing.

Accept the facts as stipulated, and then answer how you would rule. If you can accept the facts as premised, I think you will end up saying you agree, the policeman is not justified for stopping people who wear Led Zeppelin shirts and the fact it is de minimis does not give him permission to do so, or otherwise cure the constitutional infirmity.

Otherwise, I agree it is about time to stop going round and round.

I think it is actually your opinion that de minimis is a justification in and of itself will cure constitutional infirmities, but you won’t admit it.

230

Yes, I guess I did.

Well, then, I withdraw from that effort. Your opinion is impervious to any attempts to prove it wrong.

231

And the Supreme Court itself recognizes the distinguishing factors here between the kinds of cases we are talking about.

"we view checkpoint stops in a different light because the subjective intrusion – the generating of concern or even fright on the part of lawful travelers – is appreciably less in the case of a checkpoint stop. In [United States v.] Ortiz, [422 U.S. 891 (1975),] we noted:

“[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.”

There is much here besides any de minimis test that the supreme court considered.

Let’s stick to cases where individuals are concerned, because of this “different light” the S. Ct. sees it under. It’s just getting too far afield.

232

That entire passge is an effort to show how MINIMAL the intrusion is at a checkpoint. Far from being something additional, that shows precisely how much the Court was using a de minimis approach.

Look. You’ve made your point here quite clearly. If I can find a contrary citation, you’ll simply dismiss it as another instance of the Court getting it wrong. So no matter what counter examples I offer, they are doomed to your unilateral and omnipotent approval process.

Under those circumstances, you’re more than welcome to continue believing that the fact that a six-ounce device is hidden on a car creates some kind of seizure or taking. Any previous cite that shows reasoning that contradicts that position will either be misundertood to create some distinguishing difference or simply dismissed as the Court getting it wrong. You’ve acknowledged that this is your opinion, nothing more. It was my own foolishness that sought to inform your opinion by a look at the relevant case law, but it’s clear that your opinion is no shrinking violet, and will not yield easily to such attacks. It stands firm in its constancy.

There’s nothing more I can do.

233

Indeed, as is anyone’s opinion.

With that recognized we could stick to facts and debate the question as to whether or not the de minimis doctrine is indeed a part of American Constitutional Law, but we’d have to set some parameters.

The subject is very interesting to me, and I’m not appealing to my own authority at all as a legal expert.

I am willing to continue if we can find a way to avoid the aforementioned problems. I think we will wind up agreeing.

For instance, for the life of me I cannot come up with the text of the D.C. court’s opinion in Jones. But as far as I know, the only justification offered is that the man owned a nightclub, which doesn’t cut it. You offered Marquez, (without checking back throughout the thread) but that is different because there was a host of reasons offered for suspecting him in comparison to Jones.

Now, there may be a valid justification for messing with Jones and his property–if I have the facts straight (or maybe it is the companion case the S.Ct. granted certiorari with Jones instead) as I understand a warrant was issued for ten days, although they waited for the 11th day to attach the GPS. Assuming the warrant was up to snuff, then there must have been some probable cause. I can’t understand why, particularly when the government’s strategy is to delay any arrest, why they had so little regard for getting a warrant. An expired warrant is no warrant at all. Maybe they just wanted to avoid getting a tongue lashing from the judge for not acting on the previous warrant. Nevertheless, I still do not have any facts available as to what the probable cause might be. If nightclub owner is the only probable cause then this case is bad for that reason.

If you want to continue, let me narrow my premise to this:

In all cases where the rights of an individual or group of specific individuals are at stake, and probable cause is the standard requirement, de minimis does not cure any defect in a constitutional question of violation of rights absent that probable cause. In other words, de minimis does not replace probable cause as a justification.

I am not arguing that the words de minimis are ever used by courts in balancing tests, but am claiming that these balancing tests are all performed in questions where the alleged violation occurs after a legitimate action has been taken, and never as a replacement for the legitimate action. De minimis alone does not replace probable cause.

Now, I’m essentially claiming a negative. I cannot prove my claim by presenting every case and saying “Not Here!” and it would get ridiculous.

So rather than a demand for a cite, I will simply say that I’d sure like to see any case that shows I am wrong about the aforementioned claim, which I calim to be a fact of the state of the law.

If you know of such a case, I’d sure like to see it.

For purposes of continuing, I retract any and all previous claims for the sake of simplicity, and advance only the claim in this post. It was just too messy.

I apologize if it appears I was just trying to play games. I wasn’t. Other threads can demonstrate my willingness to concede I am wrong when shown, and I will here as well, I just wanna see the case where the cop intrudes, ordinarily needs probable cause (or whatever standard justification for his activity) and the court then says he didn’t need that justification because the harm done was too minimal to matter. I contend there is no such case.

234

The whole essence of it is that the court justified the original stops at the checkpoint not on a basis that it was minimal, but on the basis of the public safety. The de minimis reasoning came afterwards as a balancing test, after it was established that the police had a valid reason for doing what they did. The public safety is the reason for the checkpoint, not “for the heck of it since it doesn’t hurt anybody.” But let’s retract all foregoing arguments and start over, to solve the problems you complain of, with the last post I made.

(To tell the truth I think they really do do it for the heck of it, but that’s beside the point, because they do advance a justifiable reason for their activity.)

235

OK (he said cautiously) how about the beeper decision in US v. Knotts?

The police concealed a radio tracking beeper (this in the days before GPS technology was available) in a package that the accused purchased and placed in his car. They used the signals to track the path the car took.

They had no warrant.

The Court said:

The Court does not appear to have felt that the extra gas used to transport the beeper changed anything.

236

In haven’t reread Knotts recently, I will if necessary, but I believe there was ample probable cause before the conversion of the gasoline which would justify the activity. Assuming there is probable cause, I agree with Knotts.

I am sure they DID NOT rule, “since the taking of gasoline was minimal, the fact that the government had no business messing with the defendant doesn’t matter.”

237

There was no warrant. Yes, they did have probable cause, but they did not obtain a warrant.

Of course, in Jones, probable cause also existed. In fact, in Jones, the government obtained a warrant, but it went stale before being executed.

So it’s not clear to me why you would disagree with the result in Jones, where the government clearly had probable cause as evidenced by their warrant, even though stale at the time the GPS was placed, and yet agree with Knotts, where the government didn’t even have a warrant.

No, they did not. For some strange reason, Jones’ counsel did not raise the microliter of gas argument.

238

Well, part of the problem is lack of the text of Jones. I am assuming that all relevant facts are stated in your OP. And while it is coming in at another angle, I am very dubious anytime police have probable cause and fail to get a warrant when their own strategy is delay. Usually probable cause will only suffice in the stead of a warrant when there are exigent circumstances. The fact that the government desired a strategy of delay speaks strongly of the need for a warrant…why not get one? And since they DID in fact get one that speaks volumes that they themselves thought a warrant was needed. Why they went on and acted without a warrant seems ludicrous to me in light of A) there was no real reason not to get one and B) they have demonstrated their own belief that a warrant is necessary.

Are you aware of the probable cause? I haven’t heard a hint of it except “nightclub owner.”

If we lived in a world where no bad warrants were ever issued, I’d say the probable cause was “clearly” evidenced by the fact that they once had a warrant.

Cop 1: Shit, the warrant expired.
Cop 2: Damnnit, Judge Smith had a stroke and is in the hospital in a coma.
Cop 3: Crap, we have a real problem, no other judge around here is gonna go for that cockamamie in your affidavit, you remember how that last case got thrown out…
Cop1: Yeah that’s right, whadda we do now?
Cop 2: Let’s just act like we have a good warrant and maybe we’ll get away with it. Maybe we can say we placed the GPS yesterday…
Cop 1: Well there won’t be any evidence of movement yesterday.
Cop 2: Can anyone prove he didn’t move the car?

I could go on, but I am very suspicious of these cops who seemingly felt no urgency to act on a “good warrant” and then acted as though they didn’t need one. I’d really really like to know all the facts in Jones.

If I were the cop in Jones and I planned on delay as an investigative strategy, I’d get a warrant just to be on the safe side for practically everything I did.

But then again I’d see the court as my ally in fighting crime rather than the enemy…

I was referring to Knotts, not Jones. And he wouldn’t have needed to. The microliter of gas argument is raised after the claims of a taking to say the taking is ok. Its a prosecutor’s argument, not a defense attorney’s argument.

And if the prosecutor has no probable cause he can show to justify the original taking, it’s a lousy argument at that.

239

Well, in fairness, I think it was “seedy nightclub owner.”

Kidding!

Here were the facts that supported probable cause:

[ul]
[li]Text messages sent between Jones and his co-defendant Maynard, examined pursuant to a valid warrant issued in 2005 by US Magistrate Judge Alan Kay, which revealed plans between the two to sell cocaine[/li][li]Reports of three different confidential informants: “… For example, the affidavit states that Confidential Source Number One (“CS-1”) reported having made multi-kilogram purchases of cocaine directly from Jones in the recent past, including at Jones’ Levels nightclub. (citation omitted) CS-1 also provided specific pricing, packaging, distribution, and operating information, and detailed vehicles, individuals, and locations that Jones used for transporting and distributing the narcotics.(citation omitted) CS-2 also described having purchased kilogram quantities of cocaine from Jones (citation omitted), and independently confirmed details provided to investigators by CS-1 concerning pricing, packaging, vehicles used to transport the drugs, and procedures used to distribute drugs. (citation omitted) The August 10th Affidavit further indicates that CS-3 was in communication with, and made privy to the activities of, a suspected cocaine customer of Jones.”[/li][li]Maynard, the manager of the Levels nightclub, was stopped for speeding in North Carolina, while driving a minivan registered to Jones. After an interdiction canine alerted on the right rear area of the minivan, officers searched the vehicle and recovered from a hidden compartment $67,115.00 in U.S. currency, bundled together and contained in plastic bags.[/li][/ul]

240

By the way:

Meaningful interference with an individual’s possessory interest in property. Actual trespass neither necessary or sufficient for a constitutional violation.

Hmmm…