Posted on 06/20/2022 12:42:25 PM PDT by DFG
Texas Republicans want to hold a referendum next year to decide whether or not the state should secede from the U.S.
The party charges the state has taken its right to self-govern and calls for secession.
The demand was part of the party platform Republicans voted on at their state convention this weekend, where they also formally rejected President Joe Biden's election in 2020 as legitimate.
Under a section titled 'State Sovereignty,' the platform states: 'Pursuant to Article 1, Section 1, of the Texas Constitution, the federal government has impaired our right of local self-government. Therefore, federally mandated legislation that infringes upon the 10th Amendment rights of Texas should be ignored, opposed, refused, and nullified.
'Texas retains the right to secede from the United States, and the Texas Legislature should be called upon to pass a referendum consistent thereto.'
Texas has long pushed an independent movement, called 'Texit.'
After the area declared independence from Mexico in 1836, it was a sovereign state for nine years before it was annexed by the United States in 1845. There have been multiple secession movement since then.
Legally Texas cannot secede from the union. There has been a myth that it can because of the way it was annexed but the Congressional order of annexation merely stated Texas could - at a future date - divide itself into five states. It says nothing about leaving the union.
(Excerpt) Read more at dailymail.co.uk ...
“Justice Grier’s dissent did not change or nullify the majority opinion. Your dissent does not change it either. It’s still there.”
So, I can’t disagree with the Court’s decision? As Marbury v. Madison showed us, the law is what the Court says it is; that is, until a subsequent Court decides otherwise or Congress nullifies it. A couple cases in point: Dred Scott v. Sandford (overturned by the 14th Amendment); Plessy v. Ferguson (Brown v. Board of Education rendered it moot); United States v. Cruikshank (D.C. v. Heller and MacDonald v. City of Chicago eviscerated that).
So, I can’t disagree with the Court’s decision?
Your disagreement plus the dissenting opinion make no difference to what the law is. The effective law is what the majority opinion held it to be. I disagree with the Court, but when I state what the law is, I do not state what I think it ought to be. The interpretation given by the Court is what is enforceable.
As Marbury v. Madison showed us, the law is what the Court says it is; that is, until a subsequent Court decides otherwise or Congress nullifies it. A couple cases in point: Dred Scott v. Sandford (overturned by the 14th Amendment); Plessy v. Ferguson (Brown v. Board of Education rendered it moot); United States v. Cruikshank (D.C. v. Heller and MacDonald v. City of Chicago eviscerated that).
Dred Scott was not overturned by Congress. An Amendment is not ratified by Congress. Congress lacks the power to overturn a Supreme Court interpretation of the Constitution. It can issue legislation which overturns a Supreme Court interpretation of a Federal statute. A constitutional amendment is not a legislative act. It is a sovereign act of the people.
Brown directly overturned Plessy, stating that separate but equal was not equal.
Heller and McDonald did not eviscerate Cruikshank. As the Court stated at 570 U.S. 620-21,
We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment.United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment … means no more than that it shall not be infringed by Congress.” 92 U. S., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack, see C. Lane, The Day Freedom Died 62 (2008). We described the right protected by the Second Amendment as “'bearing arms for a lawful purpose’”22 and said that “the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes” to the States’ police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia.23
22 Justice Stevens’ accusation that this is “not accurate,” post, at 39, is wrong. It is true it was the indictment that described the right as “bearing arms for a lawful purpose.” But, in explicit reference to the right described in the indictment, the Court stated that “The second amendment declares that it [i.e., the right of bearing arms for a lawful purpose] shall not be infringed.” 92 U. S., at 553.
23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
And at 554 U.S. 625, Opinion of the Court,
We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.
Cruikshank considered whether the 2nd Amendment applied to the States under the Privileges and Immunities clause. It did not consider whether it applied under the Due Proccess clause. That argument was not made to the Cruikshank court. Heller was a case brought by the District of Columbia and did not apply to the States. McDonald found that the Second Amendment applied to the States under the Due Process clause.
Only such provisions of the Bill of Rights that have been selectively incorporated by the Supreme Court against the States are applicable to the States. I promise I am not the one who created the process of selective incorporation.
McDonald v. Chicago, 561 U.S. 742, 757-759 (2010)
The Court reversed all of the convictions, including those relating to the deprivation of the victims’ right to bear arms. Cruikshank, 92 U. S., at 553, 559. The Court wrote that the right of bearing arms for a lawful purpose “is not a right granted by the Constitution” and is not “in any manner dependent upon that instrument for its existence.” Id., at 553. “The second amendment,” the Court continued, “declares that it shall not be infringed; but this … means no more than that it shall not be infringed by Congress.” Ibid. “Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.” Heller, 554 U. S., at 620, n. 23.[...]
As explained more fully below, Cruikshank, Presser, and Miller all preceded the era in which the Court began the process of “selective incorporation” under the Due Process Clause, and we have never previously addressed the question whether the right to keep and bear arms applies to the States under that theory.
Indeed, Cruikshank has not prevented us from holding that other rights that were at issue in that case are binding on the States through the Due Process Clause. In Cruikshank, the Court held that the general “right of the people peaceably to assemble for lawful purposes,” which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U. S., at 551–552. Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a “fundamental righ[t] … safeguarded by the due process clause of the Fourteenth Amendment.” De Jonge v. Oregon, 299 U. S. 353, 364 (1937). We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause.
The claim was that Texas was not a state under the Constitution but was an occupied territory. And as such the Supreme Court did not have original jurisdiction. So the question of whether Texas was a state was a matter before the court, and the legality of the Texas secession was central to answering that question. So ruling on secession was also a matter for the court to decide. If the manner in which Texas seceded was illegal then Texas never left the Union. If it never left the Union then it remained a state even while engaged in rebellion. If it was always a state then the Supreme Court had original jurisdiction in this case. All is central to the matter before the court so none of the Chief Justice's comments were made in dicta.
Since Texas had been required to apply for readmission to the Union in order for its representatives to take office in Congress, Chase's argument is counterfactual. Only an idiot would argue to the contrary:
An Act to admit the State of Texas to Representation in the Congress of the United States. March 30, 1870
Since you have decided to resort to insults then I'll merely point out than only an idiot would confuse an enabling act that admits a state to the union with legislation restoring the rebellious state's Congressional delegation to Congress which was required by the Reconstruction Acts.
A better course is to purge California, Oregon, Washington, New York, Connetticut, and Massachuttes from the Union.
They have demonstrated that they do not support our laws or Constitution
Easily answered. Article I, Section 5: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members..." If Congress sets qualifications for seating members of states that participated in the rebellion then they are within their power to do so.
Based on your interpretation of it? I feel pretty comfortable with my positions.
but Congress cannot add its own qualifications and then judge them. Powell v. McCormack, 395 U.S. 486 at 550 (1969)
A decision 100 years later? So the actions in 1869 were correct based on established precedent at the time.
Oh, and the Fourteenth Amendment was not "ratified" until 1868, so the prohibition in that against Confederates holding office in the Congress did not legally apply at the end of the Civil War when Lee surrendered at Appomattox Court House on April 9, 1865.
Based on what law? The Fourteenth Amendment added the prohibition to the Constitution and ensured it could not be overturned by Congress. It didn't make it illegal before ratification.
f the Confederate States could not legally secede, then all of the Reconstruction laws were plainly illegal, including forcing them to pass constitutional amendments to regain their representation in Congress which constitutionally, could not be lost.
If the Southern acts of secession were illegal, and they were, then their actions were insurrection and Congress had the power to combat the rebellion and enact sanctions on the losing side.
The unmistakable conclusion is that the South had seceded from the Union, and was only brought back at the point of a gun.
As you Lost Causer all like to say The fact of the matter is the majority of the people in the U.S. at the time recognized the Southern acts for what they were, rebellion. The rest of the world recognized them as rebellion. And history has shown them to be correct.
“The interpretation given by the Court is what is enforceable.”
No @#$%, Sherlock. Just as I have been arguing against the validity of Roe v. Wade since the 1970s, and why, my opinion is mine, and is not legally dispositive. On that note, we’ll see what SCOTUS does with that case shortly.
“Dred Scott was not overturned by Congress.”
Did you not read my exact comment? I said, “Dred Scott v. Sandford (overturned by the 14th Amendment).” I didn’t say Dred Scott was overturned by Congress.
“Heller and McDonald did not eviscerate Cruikshank. As the Court stated at 570 U.S. 620-21...”
Yeah, I think they did. Cruikshank sidelined the Fourteenth Amendment by establishing the State Action Doctrine, which meant the Fourteenth Amendment only applied to state and local government, but not to private individuals (which, in my opinion, was a very twisted interpretation of the Fourteenth Amendment). Cruikshank established that the Second Amendment only protects an individual’s rights to bear arms but only the states can create that right. In other words, Cruikshank held that there was no Constitutional right to “keep and bear arms,” but that right can only be created by the state or local government, and the Second Amendment would “protect” that right if created by state or local government. Not surprisingly, Cruikshank was applied to deny blacks their Second Amendment rights.
From the Cruikshank ruling: “This (the Second Amendment) is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constitution of the United States.”
Heller endorsed the right of the individual to keep and bear arms in his or her own self defense, independent of any state power to restrict that right to service in a state militia.
In McDonald v. Chicago (2010), SCOTUS held that the Fourteenth Amendment made the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states (i.e., that the right is pre-existing, and is not dependent on a state creating one, and the states must abide by that).
Anyway, that’s how I read them.
“Dred Scott was not overturned by Congress.”Did you not read my exact comment? I said, “Dred Scott v. Sandford (overturned by the 14th Amendment).” I didn’t say Dred Scott was overturned by Congress.
Yes, I read your precise statement.
As Marbury v. Madison showed us, the law is what the Court says it is; that is, until a subsequent Court decides otherwise or Congress nullifies it. A couple cases in point: Dred Scott v. Sandford (overturned by the 14th Amendment)....
Would Dred Scott be a case in point of a subsequent case deciding otherwise or Congress nullifying it?
“Heller and McDonald did not eviscerate Cruikshank. As the Court stated at 570 U.S. 620-21...”Yeah, I think they did.
When all else fails, you could consider reading all the opinions in Heller and McDonald.
Before the Cruikshank court was a claim that litigant's rights were protected under the Privileges or Immunities Clause. The Cruikshank court held that said rights were not protected under the Privileges or Immunities Clause.
Before the Heller court was a claim that litigant's rights were protected under the Due Process Clause. The Heller court found that said rights were protected under the Due Process Clause.
Heller, Opinion of the Court 554 U.S. 570, 620, footnote 23.
23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
Heller reaffirmed the reasoning and holding of the Cruikshank court finding the Second Amendment did not apply to the States. AT the time of the Heller opinion, the 2nd Amendment RKBA did not legally apply to the states.
McDonald, 561 U.S. 742, 808 (2010). Thomas, J., concurring.
The meaning of § 1’s next sentence has divided this Court for many years. That sentence begins with the command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” On its face, this appears to grant the persons just made United States citizens a certain collection of rights—i.e., privileges or immunities—attributable to that status.This Court’s precedents accept that point, but define the relevant collection of rights quite narrowly. In the Slaughter-House Cases, 16 Wall. 36 (1873), decided just five years after the Fourteenth Amendment’s adoption, the Court interpreted this text, now known as the Privileges or Immunities Clause, for the first time. In a closely divided decision, the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship, and held that the Privileges or Immunities Clause protected only the latter category of rights from state abridgment. Id., at 78. The Court defined that category to include only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id., at 79. This arguably left open the possibility that certain individual rights enumerated in the Constitution could be considered privileges or immunities of federal citizenship. See ibid. (listing “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus” as rights potentially protected by the Privileges or Immunities Clause). But the Court soon rejected that proposition, interpreting the Privileges or Immunities Clause even more narrowly in its later cases.
Chief among those cases is United States v. Cruikshank, 92 U. S. 542 (1876). There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id., at 553. In other words, the reason the Framers codified the right to bear arms in the Second Amendment—its nature as an inalienable right that pre-existed the Constitution’s adoption—was the very reason citizens could not enforce it against States through the Fourteenth.
That circular reasoning effectively has been the Court’s last word on the Privileges or Immunities Clause. In the intervening years, the Court has held that the Clause prevents state abridgment of only a handful of rights, such as the right to travel, see Saenz v. Roe, 526 U. S. 489, 503 (1999), that are not readily described as essential to liberty.
As a consequence of this Court’s marginalization of the Clause, litigants seeking federal protection of fundamental rights turned to the remainder of § 1 in search of an alternative fount of such rights. They found one in a most curious place—that section’s command that every State guarantee “due process” to any person before depriving him of “life, liberty, or property.”
The 14th Amendment applied to the States. The Court invented the process of selective incorporation of the Bill of Rights against the States. No part of the Bill of Rights applies against the States until the Court selectively incorporates it against the States via the 14th Amendment. Some parts have never been so incorporated, e.g., the 5th Amendment right that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time or War or public danger." The majority of State indictments for such crimes do not involve a Grand Jury. They are brought by the filing of an information by the prosecutor. Still doing it today.
As Justice Thomas observed, Cruikshank remains the Court's last word on the Privileges or Immunities Clause. An alternative reasoning was needed, and it was found (or invented) as selective incorporation under the 14th Amendment Due Process Clause.
McDonald at 752.
As a secondary argument, petitioners contend that the Fourteenth Amendment’s Due Process Clause “incorporates” the Second Amendment right.
McDonald at 762.
While Justice Black’s theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of “selective incorporation,” i e., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments.
McDonald at 765, footnote 12
... the only rights not fully incorporated are (1) the Third Amendment’s protection against quartering of soldiers; (2) the Fifth Amendment’s grand jury indictment requirement; (3) the Seventh Amendment right to a jury trial in civil cases; and (4) the Eighth Amendment’s prohibition on excessive fines.
McDonald at 767.
With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).
McDonald at 791.
We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.
The Heller court could not, and did not, perform any incorporation of the 2nd Amendment against the states. Heller was a District of Columbia case and no State was involved. The issue of incorporation did not arise until the McDonald case. McDonald incorporated the 2nd Amendment RKBA in 2010.
Prior to its incorporation in 2010, the 2nd Amendment did not legaly apply to the States.
Black's Law Dictionary, 11th Ed.
incorporation, n.2. Constitutional law. The process of applying the provisions of the Bill of Rights to the states by interpreting the 14th Amendment's Due Process Clause as encompassing those provisions.
• In a variety of opinions since 1897, the Supreme Court has incorporated the First, Fourth, Sixth, and Ninth Amendments into the Fourteenth Amendment's Due Process Clause.
Constitutional Law, Sixth Ed., West Publishing 2003, pp. 17-18.
E. Due Process: The Incorporation Process1. Selective Incorporation
Only those provisions of the Bill of Rights which are "essential to the concept of ordered liberty" or "fundamental in the American scheme of justice" are made applicable to the states through the Due Process Clause. Rights, thus far not incorporated "fundamental rights" include the Second and Third Amendments, Seventh Amendment right to jury trial in some civil cases, grand jury indictment, excessive bail, 12-person juries and a unanimus verdict for conviction.
2. Full Incorporation.
The incorporated fundamental right applies against the states in the same manner as the Bill of Rights provision applies against the federal government.
The 2nd Amendment RKBA is now "incorporated."
You can cut and paste to your heart’s content if it makes you feel better.
But my conclusion is that Heller and MacDonald gave Cruikshank a smack upside the head; and I am not alone in that. As a result, the Second Amendment is what it says it is in the Constitution, that the right of the People to keep and bear arms shall not be infringed. The pertinent clause of the Fourteenth Amendment in this regard is “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Cruikshank held that only the states or local government could create the right to keep and bear arms; and if it did, the US Constitution protected that. Heller held that the right of the People to keep and bear arms was not dependent on service in a state militia (which is created by the state), but was an individual right (again, not restricted to service in a state militia). MacDonald held that the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and is thereby enforceable against the states.
That’s how I read them. You can read them differently, and you likely do, and draw your own conclusions.
I have not yet seen the decision in New York’s Koch and Nash case, so I have no idea of the specifics, and thus cannot draw a conclusion.
[Dr. Franklin #122] Chief Justice Taney had died in 1864, and Justice John Archibald Campbell, a Southerner born in GA, quit after secession. Neither is likely to have agreed with Lincoln appointed CJ Chase on that point,[woodpusher #149 ] Utterly irrelevant.
[Dr. Franklin #167] Only to you. As usual, you refuse to consider the argument.
I have carefully considered that at the time of Texas v. White Chief Justice Taney had died. Carefully considered, this is still irrelevant to Texas v. White.
I have carefully considered that Justice Campbell resigned from the Court after secession and that Taney and Archibald may not have agreed with CJ Chase. Carefully considered, it is still irrelevant. Former justices and dead justices are not on the Court. Whatever you imagine they would have done is irrelevant. If you can find their dissenting opinions, provide a link and quote.
Had Taney's dead body have been there, it would not have voted. Had Campbell remained on the court and cast a dissenting vote, it would have changed nothing. During the war, the Court was expanded to 10 justices so Lincoln could appoint 5. Had they needed more insurance, Congress could have made it 11 or 12 justices.
When they desired to prevent an adverse decision, Congress just took away the appellate jurisdiction of the Court. See Ex parte McCardle.
Rewriting or reimagining history is not a legal argument.
The precedential holding in the Supreme Court case of Texas v. White, 74 U.S. 700 (1869) is the law of the land until the Constitution is amended, or the Court issues a superseding opinion. That is not weak; that is the law of the land. Rightly or wrongly, it holds that secession is unconstitutional.It's more accurate to state that precedent from SCOTUS is only binding to the extent that SCOTUS says it is, AND enforces compliance with that precedent in the lower courts.
All other courts are lower courts. All SCOTUS precedents are binding on all lower courts.
And it is enforceable to strike down any repugnant legislation. For example, for the last fifty years, Roe has been invoked to strike down legislation infringing upon the constitutional right to abortion which emanates from a penumbra. Obergefell would strike down any law interfeing with your right to marry Don Lemon.
Texas v. White would render any attempt at secession legally null and void.
I am also aware the the "constitutional standard" for warrantless arrests set in Henry v. United States, which were limited to cases where a police officer witnessed a minor offense committed in his presence, or had "reasonable grounds to believe that the person to be arrested has committed or is committing" a felony, is routinely violated on a daily basis in the courts of the U.S., and the last time I checked, SCOTUS has never overruled that precedent.
Henry v. United States 361 U.S. 98, 100 (1959)
The statutory authority of FBI officers and agents to make felony arrests without a warrant is restricted to offenses committed "in their presence" or to instances where they have "reasonable grounds to believe that the person to be arrested has committed or is committing" a felony. 18 U. S. C. § 3052. The statute states the constitutional standard, for it is the command of the Fourth Amendment that no warrants for either searches or arrests shall issue except "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
FBI agents are Federal special agents. The statutory authority under which they may make an arrest without a warrant is set forth in the Federal statutes. Henry only applies to arrests by Federal authorities.
The statutory authority governing state or local authorities would be State statutes.
https://www.loc.gov/item/usrep374023/
Ker v. California, 374 U.S. 23, 33-35 (1963).
The States are not thereby precluded from developing workable rules governing arrests, searches and seizures to meet "the practical demands of effective criminal investigation and law enforcement" in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain. See Jones v. United States, 362 U. S. 257 (1960). Such a standard implies no derogation of uniformity in applying federal constitutional guarantees but is only a recognition that conditions and circumstances vary just as do investigative and enforcement techniques.[...]
Applying this federal constitutional standard we proceed to examine the entire record including the findings of California's courts to determine whether the evidence seized from petitioners was constitutionally admissible under the circumstances of this case.
II.
The evidence at issue, in order to be admissible, must be the product of a search incident to a lawful arrest, since the officers had no search warrant. The lawfulness of the arrest without warrant, in turn, must be based upon probable cause, which exists "where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Brinegar v. United States, 338 U. S. 160, 175-176 (1949), quoting from Carroll v. United States, 267 U. S. 132, 162 (1925); accord, People v. Fischer, 49 Cal. 2d 442, 317 P. 2d 967 (1957); Bompensiero v. Superior Court, 44 Cal. 2d 178, 231 P. 2d 250 (1955). The information within the knowledge of the officers at the time they arrived at the Kers' apartment, as California's courts specifically found, clearly furnished grounds for a reasonable belief that petitioner George Ker had committed and was committing the offense of possession of marijuana.
And it is readily apparent that not all state and local police are required to have knowledge of a felony; just a reasonable belief that an offense has been or is being committed is sufficient.
Are you aware of any other court opinions that you have not read carefully, if at all?
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