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Posted on 01/26/2009 8:05:38 PM PST by jiggyboy
WASHINGTON—The Supreme Court ruled Monday that police officers have leeway to frisk a passenger in a car stopped for a traffic violation even if nothing indicates the passenger has committed a crime or is about to do so.
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The pat-down is allowed if the police "harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous to the safety of the police and public," Justice Ruth Bader Ginsburg said.
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The case is Arizona v. Johnson, 07-1122.
(Excerpt) Read more at boston.com ...
Travel all the time and I do fit the physical profile. In my twenties, 6 foot one, five clock shadow, traveling alone. I have never gotten searched, frisked, anything. If I set off the alarm in the walk through scanner I get a nice smile and told to empty my pockets when I’ve seen everyone else from old ladies to businessmen to those who look like they just don’t fly that often be told in sterner voices to step aside. I’m not sure about the TSA manual but if anything it tells them to treat fellas like me with extra finesse. Not that I mind.
Yes I have seen your type breezing through while I stand there trying to get out of my sweater and shoes. Not fair.
Security theater is all it is, but I don’t really see a solution. TSA should try to be more like Israel in how they screen passengers. Behavioral profiling rather than physical as almost everyone in an Israeli flight will look like “my type”.
It may well be reasonable suspicion, but to me, I fail to see how reasonable suspicion isn't a general warrant. I'm sure that there are some cases that find a policeman didn't have reasonable suspicion to search, but I don't recall ever seeing one, and for good reason: the policeman always says something really generic and either untestable or applicable to most everyone: "he looked nervous/it was a crime-ridden neighborhood/he was wearing blue/red / he looked like a criminal," etc.
It's pretty weak. Incidentally, I think a lot of this crappy fourth amendment law comes from the exclusionary rule. It makes judges uncomfortable to know that people who are guilty will go free because of the exclusion of evidence, so there are huge holes cut into the fourth amendment to justify the admittance of illegally obtained evidence. Get rid of the exclusionary rule and I suspect that you'll find the 4th amendment will have more teeth.
Spoken like a true white boy that has never been searched by the cops. Let’s see you get pulled over for a license plate light being out, have to interlace your fingers and get patted down and then see how you like it. You’d be squealing like a pig under a gate.
There would be no constitutional crisis if Arizona didn't want to let this evidence in; the Supreme Court has said many times that states can grant their citizens more protection than the U.S. Constitution grants if they want to. This case reached the Supreme Court because Arizona wanted to use the evidence and took an appeal to SCOTUS.
The exclusionary rule is the only reason there are any teeth left in the 4th Amendment at all. If illegally obtained evidence can be used against us, then for all practical purposes we have no 4th Amendment rights.
Just being named "Lemon Montrea Johnson" is cause for a good frisking, IMHO. ;-)
You could bring civil suits against the state for violation of civil rights. While there's obviously no way to test this, I think that if this approach had been taken, all the dozens of exceptions to the fourth amendment would not exist today.
In terms of policy, I think it is also a good result. Society ensures that the guilty are adequately punished and there is also a significant deterrent to the state not to violate the rights of its citizens.
Suing the government is a long and expensive process. Most criminal defendants couldn’t afford to pay a lawyer to fight such a case. Few attorneys would be willing to take that kind of case on contingency except for the most obvious and egregious violations, so any remedy would be available only to the wealthiest defendants and in the most severe cases. The net result is that most people suffer a drastic reduction in their 4th Amendment rights.
Plus, any remedy available through that system would be incorrect. The only two relevant remedies would be some form of cash payment to the claimant and an injunction barring the government from using the illegally-obtained evidence against the claimant. In the case of the latter, the end result is a lengthy civil court battle against a much better funded and equipped foe (the government), which if successful only provides the result we already get automatically now. Either the criminal case has to be put off until the conclusion of the civil case, greatly lengthening the time between indictment and trial, or the criminal case would proceed before the civil case had concluded, thus potentially rendering the civil case moot because the claimant would have started or even finished his sentence before the civil court could rule on his claim.
Monetary relief is also an inappropriate remedy because it is not the best way to restore the person to his status before his rights were violated by the government. If the government bans a book I write because it finds the contents objectionable, I can sue and maybe win monetary damages - but I will also be allowed to distribute my book as I did before. If the government bans me from worshiping a certain god, and I sue, I may win money from it but I will also be allowed to worship the god of my choice as I was before. Similarly, if the government violates my right not to be subject to unreasonable search and seizure, or not to incriminate myself, I may win money, but the foremost result must be that I be returned to the same position as before my rights were violated - not subject to criminal punishments. I am not restored to that position if I suffer from the violation of my rights when that violation is known at the time the government imposes a punishment.
Monetary damages are appropriate when they are the only possible remedy. For example, if a person is convicted because a police officer illegally beat a confession out of him, and that illegal interrogation is only discovered after the person has served many years in prison, he must be compensated with money because it is impossible to turn back time and keep him out of prison in the first place. But if that illegal interrogation is discovered before the trial, it is not appropriate to let the confession be used to convict the person because he may have the opportunity for a different (monetary) remedy later. The better remedy is to prevent the confession from being used to incarcerate the defendant in the first place, and since that remedy is available in the second situation, it must be used.
Rights belong to the individual. Punishing the government for violating them is important, but the primary remedy is to restore the individual to his position before his rights were violated. As in my above examples, if the government were to violate one of your rights - say they prevented you from going to your church, or they took away a firearm you legally owned - would you be satisfied with a monetary reward after several years in civil litigation? Or would you insist that you be allowed to go to your church or have your gun?
I was thinking along those lines. Where is the line when it is a needed pat down, as opposed to someone just feeling up the passenger? Is that mentioned?
Bravo. A VERY good post. Thanks!
When the frisker’s a guy and the friskees are the entire Swedish Bikini Team, it’s OBVIOUSLY a good frisk!
How do you figure? They get to pay the judgment with monies taken from the same citizens they violated. Only by removing the incentive for illegal collection of evidence can we be sure they won't weigh the cost against the benefit and decide to go for it.
Good to know.
And that is becoming more likely what will happen - more than it does already.
In a word.....yes.
Apparently very soon, all of us will fit that description, unless we are buzz-cut, wearing BDU's and driving a government vehicle - or maybe not.
Next week, I’m learning how to wrap a turban so I can walk through an airport unobstructed.
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