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Wednesday, December 28, 2016

Kansas celebrates 225th anniversary of Bill of Rights by applying them

Everything is up to date in Kansas, provided that date is December 15, 1791, the day the United States ratified the Bill of Rights.

The case before the Kansas Supreme Court was whether police could use evidence against Gerald E. Cleverly Jr. obtained at a traffic stop at 1:15 a.m. on January 30, 2012. Cleverly was a passenger in the pickup police stopped. Police cited driver Chris Jones for no proof of insurance.

At this point, one wonders why two officers from the El Dorado, Kansas, police department have nothing better to do in the wee hours of a winter's morn than check cars for proof of insurance.

Of course, they were after more. They asked questions. Sought permission to search Jones and Cleverly.

From the court decision:
Prior to Officer Buckley's search of the vehicle, Officer Humig directed Cleverly to exit the vehicle and subjected him to a nonconsensual, involuntary pat-down search. That search produced no evidence. The officer then directed Cleverly to stand in front of Officer Buckley's vehicle during the search of Jones' vehicle. Cleverly placed the items he had carried out of the vehicle, including two packs of cigarettes and his cell phone, on the hood of the patrol car. Officer Humig and Cleverly engaged in conversation during Officer Buckley's vehicle search, and, at some point, Cleverly asked for, and was granted, permission to smoke. But Officer Humig denied Cleverly's request to make a call on his cell phone.
At this point, Jones and Cleverly should have asked for a lawyer.

But they did not.

The court continued:
Despite later testifying that he had no articulable facts suggesting that Cleverly had committed any crime, Officer Humig interrogated Cleverly, specifically seeking incriminating evidence as to whether Cleverly possessed marijuana, cocaine, or methamphetamine. Then, the officer requested consent to search Cleverly's person again. This second, more thorough, search did not produce any drugs or other incriminating evidence. Officer Humig then asked Cleverly if the officer could search the items on the patrol car hood, particularly the cigarette boxes because "this is where kids like to hide their weed these days." Cleverly handed the cigarette packages to the officer. One cigarette package was unopened, but the other had three small baggies behind the foil lining, two of which contained a white crystalline substance later confirmed to be methamphetamine.
Cleverly got arrested and got a lawyer, who argued that a traffic stop for proof of insurance should not lead to a drug bust, especially as the search violated his Fourth Amendment rights.

Nearly five years after the arrest, the Kansas Supreme Court agreed -- after a judicial panel ruled against Cleverly.

Now of course courts in the United States uphold the Bill of Rights several times a year, but it was this passage that drove me to write this missive:
Because the panel found a transition to a voluntary encounter, it did not discuss the purpose and flagrancy of official conduct in extending the detention beyond that permitted by the traffic stop. The panel only addressed the unconstitutional pat-down, describing it as "technically illegal" and declaring that it was not flagrant and its purpose was valid, even though it did not fit into a recognized exception to the warrant requirement.
To the contrary, the individual rights assured to all citizens through the Bill of Rights of the United States Constitution are not inconvenient technicalities designed to irritate governmental agents.
Moreover, if a search is unconstitutional, it is illegal, and its purpose cannot be labeled "valid." Just shy of a half-century ago, the United States Supreme Court declared that "there can be no question, then, that [the law enforcement officer] 'seized' petitioner and subjected him to a 'search' when he took hold of him and patted down the outer surfaces of his clothing." Terry, 392 U.S. at 19. Given that Officer Humig testified that, from his point of view, Cleverly was not being detained and that "[i]t was a consensual encounter," his seizure and search of Cleverly was a flagrant violation of long-standing constitutional law.
Got that? Just in case you don't, let me repeat the heart of the decision:
To the contrary, the individual rights assured to all citizens through the Bill of Rights of the United States Constitution are not inconvenient technicalities designed to irritate governmental agents. Moreover, if a search is unconstitutional, it is illegal, and its purpose cannot be labeled "valid."
The Constitution protects citizens from the government trampling on their God-Given Rights.

Period.

Make no mistake, I support the police, believe drug laws need enforcement, and believe in strong sentences.

But in this case, the police overstepped their authority.

The decision is here.

UPDATE. From comments: "If the officer had not patted the perp down and missed a concealed gun with the which he then shot the officer, would the court have backed him up? No because he committed a crime but the cop would be dead. C'est la vie, right?"

Wrong. A suspicion of a concealed weapon warrants a patdown and you had better cooperate. But if instead of a gun they find weed, I do not see that as admissible in court.

Traffic stops and domestic violence cases are the deadliest threats an officer faces.

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14 comments:

  1. Totally get this post, Big D. Even up here in Eastern Panhandle, the Berkeley County Sheriff cops have become really intrusive. Heck, I jumped party line and voted for the Dem for Sheriff in November only because he sounded like the guy who would just leave us alone. Last time I voted for a Dem was, like, 1984. Perhaps a lesson for today's Progs...

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  2. I guess that now, everything IS up to date in El Dorado, Kansas.

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  3. If the officer had not patted the perp down and missed a concealed gun with the which he then shot the officer, would the court have backed him up? No because he committed a crime but the cop would be dead. C'est la vie, right?

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    1. I agree. I can't wait to be patted down by some eager beaver cop with a brand new Glock during a routine stop and my insurance is a week overdue.
      Back in the day they used to say that the most dangerous things in the world were an intern with a new pen and a resident with a journal article in his pocket.

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    2. I infer that the search whose legality was in question was the second one, not the initial one. The first pat-down produced no evidence of a weapon. The second search was a complete fishing expedition; the police had no basis for extending the detention during which the search that led to discovery of the drugs was conducted. Once it was determined that the driver lacked insurance and once he had been cited, the police should have sent them on their way.

      In a situation like this, the best course of action is for the detainee to ask again and again, "Am I being detained? Can I go on my way now?" This helps to establish a record for the court as to whether the detention is voluntary or actually involuntary and thus subject to protections under the 4th A.

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    3. I agree Anonymous that a suspicion of a concealed weapon warrants a patdown and you had better cooperate. But if instead of a gun they find weed, I do not see that as permissible in court.

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  4. My opinion: No medical licensing, no monopoly prescriptive power, no drug war. If people want to kill themselves with drugs let them. If they are a danger to themselves or others in public, let 'em have it.
    Also: no public benefits for drug users and being on public assistance means drug testing. When you are a parasite living off the taxpayer you give up all rights, including the vote and the right to bear arms.

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    1. Unfortunately being a "parasite" doesn't allow rights to be taken. The SCOTUS has declared that even landed illegal aliens have constitutional rights. We may not like being taken advantage of, and I hate it too, but Constitutional rights are for all; even convicted criminals are getting their rights reinstated in many states. But drug testing of people on welfare and food stamps, which I agree with, has been stopped by courts and federal law. I don't believe the SCOTUS has ruled on this yet. But in a decision involving Oklahoma high school’s drug testing policy, the U.S. Supreme Court held in Vernonia School District v. Acton, 515 U.S. 646 (1995) that high school athletes have a lower expectation of privacy than the public in general, and that mandating testing policies nationwide are valid as a condition for participating in high school sports.
      Interesting difference in what is constitutional.

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    2. Unfortunately being a "parasite" doesn't allow rights to be taken. The SCOTUS has declared that even landed illegal aliens have constitutional rights. We may not like being taken advantage of, and I hate it too, but Constitutional rights are for all; even convicted criminals are getting their rights reinstated in many states. But drug testing of people on welfare and food stamps, which I agree with, has been stopped by courts and federal law. I don't believe the SCOTUS has ruled on this yet. But in a decision involving Oklahoma high school’s drug testing policy, the U.S. Supreme Court held in Vernonia School District v. Acton, 515 U.S. 646 (1995) that high school athletes have a lower expectation of privacy than the public in general, and that mandating testing policies nationwide are valid as a condition for participating in high school sports.
      Interesting difference in what is constitutional.

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  5. When the vehicle you are in is stopped by the police and you are told to exit the vehicle and get patted down it is NOT a consensual encounter, no matter what follows or how chummy a policeman is. - Elric

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  6. The difference between a legitimate government and an organized crime ring is constitutional constraints.

    Do you really want to live in a State where 'it's not illegal if the government does it'?

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  7. Just to throw a little monkey wrench in here about assumptions... Why would a weapon be deserving of a search? Every American of any age has a greater legal right to be armed than to be driving a car.

    Only 42 LEOs were killed by gun in 2015 - and three of those were accidents. According to NLEOMF:
    " Firearms-related fatalities peaked in 1973, when 156 officers were shot and killed. Since then, the average number of officers killed has decreased from 127 per year in the 1970s to 57 per year in the 2000s.
    "The 42 firearms-related fatalities in 2015 are 26 percent lower than the average of 57 per year for the decade spanning 2000-2009."
    Today. it is twice as dangerous to be a roofer or to collect garbage for a living as it is to be a police officer. So frankly, in the US of A, all Americans should be assumed to be armed, legally rightfully and gladly, in every encounter with the police - and the police should respect & value & be glad of that, because it protects them as well.

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