Yes. The article I mentioned made it clear that the opinions of Scalia and Thomas were “dicta” which I think means remarks in passing that aren’t part of the actual court ruling.
However it does indicate the mindset of some judges one of whom you could get when your case comes to trial. As to the OP’s question, I think it very foolish for the average legal schmuck to quibble with a cop who stops you. Just do what he says and get it over with.
As the old joke says, “Pay the man the two dollars.”
I recently argued an appeal (from the State’s side) about just such a detention. The below is all about Texas law, by the way.
I guess your question has been answered already (to recap: the officer may detain you until the original purpose of the stop has been satisfied, but may not detain you beyond that time. However, if the officer during that time develops a reasonable suspicion that some criminal activity is occurring or has just occurred, the officer may detain you further to satisfy his suspicion), but just to add to what’s already been said: a reasonable suspicion is enough for an officer to detain and investigate further, but not enough to justify a search. A search without consent requires probable cause. An open-air sniff by a canine is not a “search” that implicates the fourth amendment; you do not have a privacy interest in the air around your car.
Texas courts have said that detaining a person for just three minutes beyond the original purpose of the stop was unconstitutional where the officer had no reason to be suspicious apart from the nervousness of the driver (Wolf v. State, 137 S.W.3d 797 (Tex. App. 2004)). In short, nervousness alone is not enough to justify detention, but it may be considered with other factors to justify detention.
But, if the officer justifiably develops a reasonable suspicion before the original purpose for the stop is satisfied, there’s no “line in the sand”-type limit on how long the detention can last, so long as it’s reasonable. Detentions of up to an hour have been held reasonable.
You are correct: dicta (singular is dictum) are statements made in a court ruling that are not essential to the court’s decision. Sometimes judges write a hypothetical – “If the defendant had done X, we would have a different situation.” That’s dictum. It isn’t part of the court’s holding, so in later cases, you can’t rely on that statement. (But you can argue it’s persuasive. Or not, depending on who’s paying you.)
I’m not sure that I disagree with Scalia and Thomas’s point, though, which as I understand it is this: the constitution sets up specific safeguards to ensure a fair trial and due process and a jury of your peers and all that. If the state provides those things – if there has been a fair trial, due process, a constitutional jury, etc. – and the defendant is found guilty, then the state has fulfilled its commitment to us. It has provided everything the constitution requires the state to provide the defendant. If we determine (through appeals and habeas corpus proceedings) that the state did everything right, the defendant was found guilty, and then we later discover that the defendant was factually innocent, that truly is tragic. But I don’t know that it’s unconstitutional.
I have found, however, that having a law enforcement background yourself, or coming from a law enforcement family, are of inestimable assistance in navigating a traffic stop. YMMV.
Then I guess the intent of the framers in establishing the Constitution counts for less than a narrow reading of its words.
“We the people … in order to … to establish justice, … promote the general welfare, … and secure the blessing of liberty to ourselves and our posterity, … yadda, yadda, yadda.”
It’s always better to be able to roll the dice with two trials. Your propsoed rule simply said “hard evidence”. I can easily imagine a strategic decision to hold back some piece of “hard evidence” that isn’t heart-stoppingly obvious in order to guarantee a second trial.
No real cases where this has been done, because in real life the rules prevent the defense from getting a new trial if they held back solid evidence from the first trial.
But the CONCEPT at play here comes up all the time, and it has to do with preservation of error. Basically, the idea is that if an error occurs during the trial, you may complain about that error on appeal only if you objected to the error during trial. In other words, this prevents the defense from playing a variant of the same game we’re discussing here… letting an error that prejudices their side go by unchallenged. Then, if they win an acquittal anyway, no problem! And if they lose, they yell about the error on appeal and get a new trial - it’s a win either way.
So the rules prevent that sort of “gaming the system.” To complain about an error on appeal, you must identify it at trial, object, and give the trial court a chance to correct the mistake.
This was about ten years ago, and me an my buddy was at a train station, walking down the platform. My friend was carrying a bag, talking about something – one of them guys always talking about something.
Suddenly, there were two uniformed cops in front of us, and one of them said to my friend: “May I take a look in your bag?”
Without as much as slowing down, he said: “No”, kept walking and continued talking to me.
That was pretty cool, I thought.
Because it increases the chances of an acquittal, overall.
Let’s say a defendant has 10 potential submissions to offer, which may be in the form of witness testimony, or scientific expert testimony, or involve a document or other tangible exhibit. For the sake of argument, assume that he’s got a 25% chance of acquittal if he offers all 10, but that each one he withholds reduces his chance of acquittal 2%.
If he offers none of the 10, he’s still got a 5% chance of winning, derived from the nonzero chance that the jury will do something bizarre, or that a key prosecution witness will die, or otherwise be unavailable. (Yes, I know that these things can’t be evaluated with mathematical precision - this is for illustration purposes only.)
Assume further that the jurisdiction allows a new trial after conviction if the defendant claims actual innocence, if he can point to some piece of additional evidence that wasn’t offered at the first trial.
With these assumptions, the defendant should hold back some of his evidence. Let’s say he offers 7 of the 10. He’s got a 19% chance of acquittal. If he loses, he applies for a new trial. Now he offers 8 of the 10. Another shot at acquittal – 21% this time. Repeat as necessary.
I’m not aware of any, but I expect that’s because getting retrials is (currently) not this easy in the jurisdictions that I’m familiar with.
well… You missed the part where I said “New Hard Evidence”… not jsut "not previously presented evidence:
So, if the evidence is available at the time of the first trial, and not presented… tough luck, you rolled your dice by withholding. Now, on appeal, if it can be proven that this tactic was “suggested/approved/known” by the attorney, perhaps a new trial for bad counsel.
Which then incentivizes counsel to make that “strategic” decision in a difficult case. As an attorney, I am required to zealously advocate for my client; if I know that I can get him a new trial simply by withholding a bit of evidence, where’s the loss in that? If he wins the initial trial, all to the good. If he doesn’t, I pull out my ace, fall on my sword, and get my client a new trial. Note that this is all hypothetical for me – as I’ve said before, my criminal practice has pretty much dried up now that my siblings are out of college.
And that’s where my Justice Scalia bobblehead doll gets in arguments with my Justice Stevens bobblehead doll. What would stop Congress from passing a law that permits a convict to file a suit to determine his “factual innocence,” with the “reward” being a reversal of the prior conviction? Absolutely nothing. But they haven’t done it, likely because the odds of that law being needed (versus being abused) are low.
In addition to the constitutional safeguards, there are a couple more: judges are, for the most part, human. When confronted with an injustice, many judges will excercise their “equitable” powers to do equity (another word for justice). So that’s one protection. A second is the prosecutor: a prosecutor may only prosecute a case she believes in. To do otherwise is a violation of her ethical duties.
So truthfully, in a real-world sense, I think we’re not talking about cases where there is ironclad proof of factual innocence. We’re talking about cases where there’s some doubt about guilt. In those cases, if the defendant got a fair trial, with all the constitutional protections, shouldn’t we say, “enough”?
I think Bricker answered the rest of your question. “Reasonable suspicion” is a lower threshold than “probable cause.” A magistrate can issue a warrant (a search warrant, for example) only upon a showing of probable cause, which is less than “beyond a reasonable doubt.” It helps to think of probable cause as 51% – there’s more evidence in favor than against.
Reasonable suspicion, on the other hand, is much more loosey-goosey. It means a level of suspicion that is reasonable that criminal activity is taking place. Your example was a similar car. That’s not enough. Similar car and you match the description of the guy driving – maybe, but probably not. Similar car, you match the description of the guy driving, you are sweating and you keep looking at the trunk of the car – reasonable suspicion, in my opinion. Like I said, it’s very loosey-goosey – it comes from a case where a veteran police officer saw some guys acting “suspiciously” – walking back and forth in front of a store. In his experience, that meant they were “casing the joint.”
The next time you see a police officer (in a non-adversarial situation) ask. I’ve found most police officers have a very common sense approach to these legal rules. At least in the LAPD (and I suspect most other big-city departments) when the Supreme Court hands down a new decision relating to police conduct, it’s summarized for the officers at roll call. (By the way, nothing more fun than a roomful of cops and lawyers debating hypotheticals.)
Tough question. But that’s why Supreme Court Justices make the big bucks. I get the point that at some time there has to be a finality. In fact some legal experts say right out in front of God and everybody that the object of courts isn’t to do justice but rather to reach a decision so that we can get on with life.
Just the same it does seem entirely alien to the spirit of the Constitution to say that executing the death penalty on someone who is truly innocent of the crime is not unconstitutional.
And the police department has private counsel who quickly dispose of such case with a summary judgment motion based on immunity. 
Agreed. That’s what my Justice Stevens bobblehead spends so much time explaining to my Justice Scalia bobblehead.
And I do think that finality is important. But so is equity. I’m glad I don’t have to decide.
I thought they had only qualified immunity.
Yes. I should have been more specific. But the QI threshold is easy to meet (from the cop’s perspective). My cites are at work, and I’m at home, but I’m 2-0 getting these cases tossed out on summary judgment (limited experience admittedly, but some familiarity with it). If you can get another officer to give an affidavit (for his colleague) that he might have done the same thing in the situation, then you’re most of the way there. Plus the officer only has to show “arguable probable cause,” and the arguable probable cause doesn’t even have to relate to the crime charged.
Officers get a lot of leeway when performing “discretionary” actions as part of their job. And State qualified immunity is even stronger than Fed.–at least in my state.
Some of the cases show some pretty outrageous behavior on the cop’s part that still gets the QI protection.
Doesn’t he at least have to answer the question, “Am I under arrest, or am I free to go now?” If you repeatedly ask if you’re free to go and the officer says nothing, are you supposed to infer that you are being detained or that you are free to go? If you do leave, or attempt to leave, could you reasonably be charged and convicted for resisting arrest or some related crime?
Officers are only entitled to qualified immunity, not absolute immunity. Certainly that would be the first thing a respondent should try, but if the officers acted illegaly, in a way that they knew was illegal, they generally won’t be entitled to immunity. Immunity protects them against good-faith error, and even simple negligence, but not gross illegality.
If you ask if you’re free to go, get no response, and begin to leave – calmly, not violently – then I can’t see a charge of resisting arrest sticking. If your attempt to leave causes the officer to physically detain you, then there’s no need for him to answer your question in words… you’re NOT free to go.
I agree. It’s just that you can squeeze a lot of behavior into “negligence.”
Once there’s an allegation of constitutional misconduct, the court asks:"whether, at the time of the incident, EVERY objectively reasonable police officer would have realized the acts violated already clearly established federal law."Saucier v. Katz, 533 U.S. 194, 201, (2001). Absent an egregious violation, this is easily beaten with a few officer affidavits.
And with the “arguable” probable cause (i.e. actual probable cause doesn’t have to exist) standard, it gets easier.
If your state uses an “actual malice” standard, the cops can even act with “ill will” (cursing, bullying berating, etc) and be protected from state charges.
So, yes an officer isn’t protected from gross illegality, but I was suprised to find out how much he/she can get away with under the QI protection.
YMMV
PS
Here’s an arguable probable cause cite for those interested:
Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997)
I was going to mention Hunter v. Bryant, 502 U.S. 224 (1991).
That’s the gravamen, I think, of “arguable” probable cause: it’s not “any officer,” but any reasonably objective officer. As long as the mistake is reasonable, qualified immunity exists.
So there’s a subjective and an objective component to the test. “I did it, and I thought it was reasonable,” isn’t enough.
Montoute has a good discussion of the issue, and the facts are fun: cop shoots fleeing, shotgun-wielding guy in the ass after shotgun guy refuses to drop weapon. I don’t have much trouble agreeing with that decision.
I’m assuming you’re a judge Bricker so in your experience, even if the police completely violate someones rights (search after consent isn’t given, threaten someone, etc) is it going to matter since over 90% of cases are plea bargained anyway? It seems like even if the police do break the rules it won’t come to light in a plea bargain, which is where the vast majority of criminal cases end up anyway.