In a doctrinally bankrupt decision, the Supreme Court in Michigan Dep’t of State Police v. Sitz, majority opinion by Chief Justice William Rhenquist, held that there is a caveat in the Fourth Amendment written in ink only visible to six member of the court that allowed an exception to seize people who have given the police no reason in the world to be seized if the state can come up with a really good story about why it wants to. Sobriety field testing was just such a story.
The court only had a few conditions in letting the cops have their way: that it be truly random, and not used as a pretense to profile drivers of a color the cops didn’t like, and that its randomness be reflected by an advance plan of what they would do, when and where they would do it. Because it would be pretty easy to claim an ad hoc roving checkpoint whenever the police decided they needed to make some collars for their quotas otherwise.
The idea was that an operational plan would be filed in advance of a checkpoint, and it would reflect the random manner of stopping otherwise innocent people. Whether every third car, maybe sixth, whatever, but that was as far as the court would let them go.
Still, this proved too hard for cops in Florida. From WTSP :
Darn those dashcams. So Jason Sammis, a lawyer representing someone caught in the net, took this to the state attorney to show that the cops ignored the operational plan, and rendered the checkpoint flagrantly unlawful. The state attorney reacted, well, in a curious fashion.So let’s go back to that DUI checkpoint last December. Pasco Sheriff’s deputies, Florida Highway Patrol troopers, and Tarpon Springs Police officers were in charge. The operational plan they filed stated they were going to pull over every third vehicle. Daniels noticed on the police’s own squad car video recordings that the three agencies were breaking the rules. The video clearly shows the flagman at the front of the checkpoint wasn’t following the plan and flagging in three and four cars at the time.
[I]nstead of dropping the cases, the state attorney’s office took a new tactic and it got ten law enforcement officers who worked that night to sign affidavits saying the operational plan was followed, which was a bald-faced lie.
After all, if ten officers swear to a lie, then it must be true. But the state’s attorney claimed it was an honest mistake:
A spokesman says Assistant State Attorney Vin [irony alert] Petty missed that fact while he was at the checkpoint, and when he first watched the video, and that’s why he had officers sign the affidavits. The police agencies also claim they had no idea they were violating the law.
Clearly, there is no reason to expect that either the Assistant State Attorney or the multitude of officers from various departments would have any clue as to what the lawful requirements of a checkpoint might be. That would require training, perhaps even reading a Supreme Court decision (if not the Classic Comics version), and would take time away from keeping our roads safe. Or perhaps the people involved were intellectually challenged, making counting by threes beyond their ken, and thus better suited for work at the Department of Justice.
The very notion of checkpoints, where people for whom no suspicion exists are seized, is a facial affront to the core of the Fourth Amendment, that no person be subject to unreasonable search or seizure. Checkpoints, by definition, provide no reason. Even random, they elevate the state’s concern that people are having too much fun over the citizens right to not be seized unless there is reason to believe he is breaking the law.
But even if the Supreme Court majority is willing to shut its eyes as tight as possible, and picture an exception in the law to appease the MADD gods, would it kill the police to formulate a lawful plan and execute it properly? Perhaps a remedial course in counting by threes would help? Or maybe just stop lying in affidavits to cover your flagrantly unlawful conduct?
Or maybe its time to revisit the concept of random checkpoints because it’s nearly impossible for the defendant to know whether they’ve been conducted lawfully? This time, there was a dashcam video that enabled eagle-eyed Sammis to see that the plan was totally ignored, but eventually the cops will figure out that if they point their cruiser the other way, no one will be the wiser.
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From the linked article: “The police agencies also claim they had no idea they were violating the law.”
Ignorance of the law, the claim that works only when you are the law.
This is one of those arguments that’s far more appealing to non-lawyers, as it compares apples to Fords and makes for a cute platitude. Ignorance of the law does not, in most instances, serve as a defense to committing a crime, and that’s (theoretically) true if the crime is committed by prosecutor, cop or anyone else. But ignorance of the law, when it isn’t being used to defend against a criminal accusation, is used by everyone, from judges to criminal defense lawyers to regular citizens.
Ignorance of the law is pervasive, which is one of the reason we study, research, think and argue about the law all the time. It’s an excellent reason to have appellate courts, by the way.
It’s hardly apples to Fords.
Ignorance of the law is pervasive. It’s impossible not to be ignorant of the law. There are too many of them for anyone to know, and that’s leaving out the regulations and court rulings that impact how those laws are understood.
If you’re Gibson Guitar and *think* you’re obeying the law, not knowing how the DOJ is going to interpret the Lacey Act isn’t an excuse. If you’re a prosecutor who conceals a DNA test conducted on evidence in a capital murder case and claim you didn’t know (?!) you needed to let the defense know about it, well, you’re a good boy and we’ll chalk that up to “lessons learned.” Wink. Wink.
There are plenty of places on the internet where angry people can find other angry people and spew simplistic nonsense to each other. Just not here.
The best part of the story is that the prosecutor, Vincent Petty, was at the scene during the entire roadblock. He is so trusted at the State Attorney’s Office that he was also assigned to litigate the motion to suppress. The video showed that the officers stopped 60% of the vehicles instead of “every third vehicle.” No one at the scene noticed that? After filing the motion to suppress imagine our surprise when we got the affidavits that Vincent Petty prepared and the officers signed denying the misconduct. Right before the motion to suppress hearing we called the State Attorney’s Office back and asked them to watch the video again – this time paying particular attention to the fact that the video clearly shows that 60% of the vehicles were being pulled over. His supervisor signed the paperwork to drop the charges right after that. These officers have another checkpoint scheduled for this Saturday night. No word yet on which prosecutor is assigned to be at the scene.
I caught that detail as well. That prosecutors can make mistakes doesnt’ concern me. That he was incapable of distinguishing every third car from 60 % is another matter. So either he’s a liar or too stupid to figure out how to breath. Neither makes him or the state’s attorney’s office look good.
It’s unfortunate that you simply stoop to ad hominem instead of civilly addressing the point. It’s not an error that the courts have found an official’s ignorance of the law (whether because the law was unclear or they simply didn’t know) was sufficient to uphold a “good faith” belief they were acting lawfully, and thus were protected by qualified immunity from civil liability for their actions.
It’s your blawg, as you make pains to note in the post that seems to be a response to my comment. What doesn’t appear in that post is anything approaching support for your assertions.
My examples weren’t pulled out of my ass. Both are based on specific cases. Gibson Guitar and their Lacey Act travails were obviously one. The other was Connick v. Thompson.
I still enjoy your blawg and your insights and don’t intend to stop reading it (to your dismay, perhaps). But this being your blawg doesn’t mean you’re incapable of error.
First, that was not an “ad hominem.” Don’t use words you don’t understand. Second, what possibly makes you think you are owed my “civilly addressing” your point? I owe you nothing. Absolutely, positively nothing. You are free to read here if you want, but that doesn’t entitle you to my time, interest, or bandwidth.
You think you raise important points? Hooray. I don’t. But that’s not the real problem I have with you. Having already made my position clear, who are you to demand my attention to address your points? You can think I’m wrong all you want. Frankly, I couldn’t care less. But you do not get to make my blawg stupider because you think you’re brilliant. Are you right? Then go start your own blog and pontificate all you want. But this is not your soapbox.
Yes, it was ad hominem- an argument directed at the man. You didn’t actually address anything that was said, just dismissed them as “angry.”
I don’t believe any part of my post claims I was “owed” anything from you.
I haven’t demanded your attention, either, and I didn’t claim to be brilliant. You’re right: it’s not my soapbox, but having invited commentary it’s rather crass of you to pretend you’re being put upon when someone takes you up on the invitation.
I am curious as to why someone disagreeing with you makes you so unhinged, but I don’t really expect an answer.
It’s your ball. Take it and go home if you wish.
Would it kill you to be angry in shorter comments? Sigh. Okay, one last try, but you’re wearing on me.
1. No, it was not an ad hominem. I had already explained to Fritz why I find the argument to be misguided. This is an ad hominem (do I have to explain everything?): Your argument sucks because you are stupid. This is not an ad hominem. Your argument sucks, therefore you are stupid.
2. This is where you evince your belief that you are “owed”: “instead of civilly addressing the point…” This means that I owe you civility and to address your points. That’s just how language works, whether you meant it or not.
3. As for ” it’s rather crass of you to pretend you’re being put upon when someone takes you up on the invitation,” I invite thoughtful comments. Yours was not thoughtful, particularly as I had already addressed the point in my response to Fritz, yet you felt compelled to persist after I had addressed the point. I was put upon. And I am put upon more by each of your successive comments.
4. Disagreement doesn’t make me “so unhinged,” ignorance does.
5. Take my ball and go home? Bacchys, I am home. You have come to my house. I have not, nor will I ever, go to yours.
Simple Justice exists for my pleasure, interest and amusement, not yours. You are not that interesting. And if I didn’t find you somewhat amusing, I would have just deleted your comments and spent my time on more fruitful endeavors instead of responding to you. But now, your amusement quotient is used up. I hope I’ve made this plain.