Monthly Archives: January 2015

PS4 GTA5 Team Deathmatch Fourth Amendment
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By: Jean Sage

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PS4 GTA5 Team Deathmatch Fourth Amendment - Video

The Making Of The Twenty Fourth Amendment Part 6
Think. Create. Inspire. Relax. Become.

By: LPTrax

Originally posted here:
The Making Of The Twenty Fourth Amendment Part 6 - Video

Prior decisions of the Supreme Court addressing the constitutionality of the use of narcotics-sniffing dogs versus other law enforcement techniques have been on a theoretical collision course for years. On Wednesday, the Court will hear argument in Rodriguez v. United States and consider aspects of the issue once again: does the Fourth Amendment restrict the use of drug-sniffing dogs by the police at a roadside traffic stop, when the officer has finished issuing any citation and the stop is prolonged for a few minutes solely to conduct the dog sniff?

The nuances of simple facts

As in many Fourth Amendment cases, although the facts in Rodriguez are relatively simple they raise difficult theoretical questions which often turn on nuances about the details. One evening shortly after midnight, a car being driven by Dennys Rodriguez and carrying passenger Scott Pollman was stopped by Officer Morgan Struble. Struble had observed the car drift slowly onto the shoulder of a highway and then jerk suddenly back onto the road this was concededly probable cause to believe that Nebraska traffic statutes had been violated. Coincidentally, Officer Struble was a canine officer, and he had his drug-sniffing dog with him in his patrol car.

Upon questioning, Rodriguez told Officer Struble that he had swerved to avoid a pothole; the officer found that implausible. The officer was also suspicious of the overwhelming odor of air freshener; and he thought Pollman was unusually nervous for a passenger. When the officer asked Rodriguez to come sit in the patrol car during a records check, Rodriguez asked if he was required to do so. Upon being told that he was not, Rodriguez stayed in his own car.

When the records check came back negative, the officer went back to Rodriguezs car and spoke with Pollman, a conversation that the officer later said he also found suspicious. When the officer returned to his car, this time to run a records check on Pollman, he called for a second officer to come to the scene: Officer Straube had apparently decided to conduct a dog sniff and wanted another officer as back up for safety reasons.

Officer Struble then went back to Rodriguezs car, returned all documents to both men, and issued Rodriguez a written warning. At this point the stop of the car for traffic reasons appears to have been over. Officer Struble then asked for permission to walk his dog around the car. When Rodriguez refused, Officer Struble ordered him out of the car. This also concededly appears to be a moment of Fourth Amendment detention. They waited for the second officer, and when that officer arrived the dog sniff was conducted. The dog alerted within a few seconds. A search of the car yielded a bag of methamphetamine and the case went federal. Undisputedly, about seven or eight minutes elapsed from when Officer Struble gave Rodriguez the written warning until the dog alerted.

The federal magistrate found that the facts did not add up to reasonable suspicion once the traffic stop was over. Nevertheless, he recommended against suppression because the delay to conduct the dog sniff was a de minimis intrusion under Eighth Circuit precedent. The federal district court agreed, Rodriguez then pled guilty conditionally, and on appeal the Eighth Circuit affirmed.

Thus the question whether the Fourth Amendment permits an eight-minute detention, after a valid traffic stop has been completed, to conduct a dog sniff, seems clearly presented. More generally, the question whether (and for how long) a traffic stop may be prolonged, for reasons unrelated to the traffic violation itself, has divided lower courts. Note however, that the question in Rodriguez is premised on the assumption that the officer on the facts of this case did not have reasonable suspicion regarding narcotics. In addition to arguing that the dog-sniff detention was reasonable under the Fourth Amendment, the United States also argues that the Court could alternatively find that there was, as a matter of law, reasonable suspicion here. If the Court were to accept that view, then the detention for dog sniff without suspicion question would presumably be moot. But given the views of the trial judges, this alternative seems unlikely (although it could be open if there were a reversal for Rodriguez and remand).

The constitutional collision course

Heres a brief sketch of the constitutional debate regarding dog sniffs. The Fourth Amendment concept of a search is a constitutional trigger for inquiring into further requirements (probable cause, reasonable suspicion, possibly a search warrant, or some recognized exception). Absent a search (or seizure), officers are not restricted by the Fourth Amendment at all. Thus if a dog sniff is not a search, then there are no Fourth Amendment constraints on officers employing them (although this still leaves the question of the length of the detention here).

Read more here:
Argument preview: Dog sniffs and traffic stops once more to the Fourth Amendment well

A few weeks ago, Virginia Delegate Rich Anderson (R) and Senator Richard Stuart (R) introduced an amendment in the Virginia General Assembly, HJR 578, which would amend the Virginia constitution by replacing the state equivalent of the Fourth Amendment with an all new version designed to be an update for the 21st century. A reader asked me for my opinion of the proposal. This post provides it.

My overall assessment is that this proposal isnt ready for prime time. First, its a truly radical set of ideas. It would restrict police power to enforce the law in dramatic ways far beyond anything seen before. Second, its a grab-bag of different police restrictions, many poorly drafted and murky as to their scope. And ironically, several of the proposed changes actually arent likely to be changes at all. Theyre drafted in odd ways that probably miss their intended targets.

Heres some context to understand my reaction. The Virginia state constitution has a search and seizure provision that dates back to 1776 and was part of George Masons original Virginia Declaration of Rights. Heres the text:

That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

For most of Virginias history, this provision was the primary protection of search and seizure law that regulated Virginia law state and local law enforcement. In 1949 and 1961, however, the U.S. Supreme Court held that the federal Fourth Amendment also applies to state and local governments under the Due Process clause of the Fourteenth Amendment. As a result of those U.S. Supreme Court developments, state constitutional protections play little or no role in most states. Most state Supreme Courts interpret their state constitutions to match or mostly match the federal Fourth Amendment, and the federal Fourth Amendment already provides a floor below which state and local officials cant go.

Virginia is one of those states. The Supreme Court of Virginia has concluded that the requirements of Virginias 1776 search and seizure provision are substantially the same as those contained in the Fourth Amendment. Lowe v. Commmonwealth, 230 Va. 346 (1985) (quoting A. Howard, I Commentaries on the Constitution of Virginia 182 (1974)). States are certainly free to do more. Either by judicial construction, or by express textual amendment, states are free to enact greater protections that will regulate state and local governments more than the federal government. But its an option, not a requirement, and so far Virginias constitution hasnt gone beyond the federal Fourth Amendment.

The new proposal would change that. The proposal would replace George Masons 1776 language in its entirety with the following new language:

That the government shall not violate the right of the people to be secure against unreasonable searches and seizures of their persons, houses, businesses, lands, papers, and effects, including communications and stored personal information and data. A reasonable search or seizure is one based on probable cause that a law has been or will be broken. An unreasonable search or seizure is one that is not based on a valid law. Warrants and other demands shall be issued only based upon probable cause, signed by a neutral judge or magistrate, supported by oath or affirmation, and particularly describing the place to be searched, the persons, property, or things to be seized, or the communications, personal information, or data to be accessed or obtained. A persons disclosure of papers, effects, communications, personal information, or data to another person shall not alone constitute a waiver of this right. The people shall have remedies of exclusion and actions for damages and other remedies wherein defendants shall not enjoy greater immunity than other citizens of the Commonwealth.

What is this language supposed to do? Good question. Just reading it, its somewhat hard to tell what the drafters were thinking. In the Washington Examiner, however, Ken Cuccinelli and Mark Fitzgibbons (C&F) offer an endorsement of the proposal that gives a relatively detailed explanation of it. Its the most thorough discussion I have found, and it gives us enough context to evaluate the proposed amendment sentence-by-sentence.

Lets start at the beginning with the first sentence:

See the original post here:
Volokh Conspiracy: An update to the Virginia constitution that the General Assembly should pass over