"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, April 22, 2009

A Reading from the book of Stevens...

Today the SCOTUS issued from Mt. Olympus a new doctrine for the masses. Before today, if an officer arrested someone in a vehicle, the vehicle could then be searched, even if the person had been cuffed and taken down to the station.

After today's ruling, when a police officer arrests someone in a vehicle, he may only search incident to that arrest if the person is unsecured and might therefore constitute a threat; or if he has reasonable grounds to search for evidence of the crime for which the person is being arrested.

Our man Nino Scalia, again bucking the trend and defying the facile labeling imposed upon him by the Left, would go even further and eliminate the “officer safety” search on the grounds that the police can secure someone first without having to search the vehicle, and he worries that our naughty and conniving police will “abuse the privilege” and delay securing suspects so they can pretextually search the vehicle. Hmmm, thanks for the suggestion, Nino.

Yet again, the justices generally defied “conservative” vs. “liberal” labels, with “liberal” Stevens writing the majority opinion, joined by fellow “liberals” Ginsburg and Souter, and “conservative” Thomas and Scalia. Dissenting, and arguing that the “heavy burden” required to overcome the doctrine of stare decisis had not been met in this case, were “liberal” Breyer and Kennedy and “conservative” Alito and Roberts.

While I generally agree with the Court’s new doctrine:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
I find the silly veneer of Constitutional dogma-in-the-sky rationale annoying: “Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result.”

Please.

Up until today’s decision, no one could say with a straight face that these vehicle searches were authoritatively unconstitutional; i.e., no one could soothsay that a practice long sanctioned by the courts, including the US Supreme Court itself, would now with a wave of the judicial wand, become ex post facto unconstitutional.

It’s downright silly and disingenuous to claim, as Stevens does, that all along there has been a constitutional right not to have your car searched if you’re arrested for a traffic offense. He himself catalogues the “checkered history” of this area of law, pointing out that prior to Chimel and Belton, the rule wobbled back and forth between a more expansive search incident to arrest doctrine and a more restrictive one. That pendulum has simply swung more restrictive today, not because of Stevens obeying some Constitutional-dogma-in-the-sky that only he, the high priest, has been mady privy to, but because 5 justices decided they disagree with Belton, a 28-year precedent of their own Court.

At any rate, wherever you land on the question in this case, it’s a truism that as Alito argues, this new doctrine
reintroduces the same sort of case-by-case, fact-specific decision making that the Belton rule was adopted to avoid. As the situation in Belton illustrated, there are cases in which it is unclear whether an arrestee could retrieve a weapon or evidence in the passenger compartment of a car.

And while we're getting all dogmatic and tender for the supposed true and historical meaning of the Fourth Amendment, as Scalia pontificates, and since we're just casually throwing precedent overboard, how 'bout throwing out that not-found-anywhere-in-the-Constitution-or-in-the-"Original Understanding" exclusionary rule?

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