It may not be among the most common reasons for a car stop, but it happens often enough to raise again.  Officers driving with the windows of their cruiser down, smell marijuana and, upon that basis, stop a car.  It’s been raised innumerable times around the country, often being the subject of ridicule at the ridiculousness of the claim.

But other times, the judge does what Norfolk Circuit Judge Everett Martin did:

Officer Robert Frenier testified he was driving in the 3700 block of E. Princess Anne Road on Dec. 7 when he smelled marijuana through his patrol car’s vents. He said he and two other officers in his vehicle believed the smell was coming from the Dodge Neon in front of them.

“I don’t find it inherently incredible,” Martin said before finding the stop was legal. “I find it quite believable.” Continue reading →

Much as I thought I was done with discussion stemming from the “dirty old man” post, I was sent a comment posted at Nita Farahanny’s flavor which made me very sad, and compels me to discuss it one more (and hopefully last) time.

By a commenter who calls himself Nathan_M (and unfortunately, the WaPo lacks a means to link directly to a comment):

Wow, Scott Greenfield’s comment to the woman who was sexually assaulted at professional events is appalling.

If a client wanted advice on how to deal with a situation like that any competent lawyer  would provide something very similar to Kateality’s [sic] analysis. She has essentially nothing to gain and potentially a lot to lose form making a public allegation, which is admittedly unfair but we deal with the world as it is and not as it ought to be. Continue reading →

Radley Balko at WaPo provides us with yet another tale of monumental and pointless harm at the hands of a cop whose need for mindless control exceeded anything resembling human thought.

Police critic Will Grigg stitches together a series of news stories to construct an infuriating narrative from Utah.

When Mark Byrge had a minor traffic accident on a street in American Fork, Utah, he did the “responsible” thing by reporting the incident to the police. He has never stopped paying for that mistake.

Within a few minutes of receiving Mark’s call, a pair of American Fork cops arrived to document the damage to Byrge’s delivery truck from a collision with a tree branch that protruded into the street. Mark was cooperative – and he put up no resistance when the lead officer, Andres Gianfelice, placed him under arrest for an outstanding traffic ticket (as well as citing him for not providing proof of insurance).

That Gianfelice felt it necessary to arrest the guy who was doing right was bad enough. What follows, however, is where it turns into mindless insanity: Continue reading →

In a New York Times op-ed. Yale lawprof Bruce Ackerman argues that “dignity is a constitutional principle.”  It’s a provocative stand-alone notion, as it’s hard to argue against the notion of “dignity.”  Which is also why arguments so artfully phrased are so dangerous.

What is dignity? The dictionary definition says it’s “the state or quality of being worthy of honor or respect,” two more words to which we cling dear, and damn fine words at that.  Would it be controversial to say that all human beings are worthy of dignity?  Of course not.

And yet, what about pedophiles?  Well, not them. Or revenge porn purveyors?  Not them either. Murderers?  Certainly not them. But then, they’re all human beings.  But they’re human and worthy of dignity, right?  Well, some pigs are more worthy than others.

Ackerman’s op-ed begins with gay marriage, and goes through the rhetoric of racial equality, and then circles back: Continue reading →

This post has absolutely nothing to do with law, police, courts or décolletage. If that’s your only interest here, run away. Fly like the wind. There’s nothing here for you.

The wedding of the son of a dear friend of Dr. SJ and I is coming, and so I set out to find our wedding gift for him. We’ve known him since birth, and he’s a wonderful young man. His parents are great people, with whom we’ve shared good times and bad. When it came time to pick out a gift, there was no question what to get.  Antique sterling silver candlesticks.

Huh?  Is the groom into sterling candlesticks? Continue reading →

After the internet came down like a load of bricks on my senior Judge buddy, Rich Kopf, an amazing duality emerged.  He used the phrase “dirty old man” to describe himself, and it became a litmus test of generational understanding.  This became clear when two of the WaPo Conspirators, Nita Farahanny and the Chief Conspirator himself, Eugene Volokh, address the issue.

Aside:  This is still not a post about what to wear, whether male or female, or whether Judge Kopf is a sexist pig deserving of vitriol.  This is a post about the language used to convey a message to an audience on the interwebz, and how it’s perceived based on generational differences.

Duke lawprof Farahanny began by recalling her own experiences:

They remind me of the many times that students have commented on dresses I have worn to teach in (but not their male professors), and the time I appeared before a panel of federal judges for a moot court argument and was chastised for wearing a pantsuit. Continue reading →

If you squint a bit, the notion of citizen legislators seems so populist chic. After all, that makes them regular folk like us, and since we’re just the ginchiest, shouldn’t they be too? Except the down side of the concept is that part-time legislators get paid part-time salaries, and need to work for a living if they’re going to get their kids that shiny new iPad that all the other kids have. Would you really want their children to be denied?

So Mark J. Grisanti, R-Buffalo, got himself a pretty good gig for a lawyer, that likely went a long way toward supplementing his meager state salary.  From the Buffalo News:

So when police raided the house Feb. 27 and confiscated $50,000 worth of heroin and another $70,000 in cash, neighbors celebrated what they hoped was removal of an entire gang of bad guys. Continue reading →

Before the Supreme Court’s decision in Whren, police were constrained to lie about the reason for stopping a car they wanted to search for drugs.  But the Court broke through the floor, allowing police to be honest about their dishonesty.  When it comes to interrogation, the law has long been clear that lying is a very effective tool of law enforcement. The law protects lies.

This shocks many people. Aren’t the police supposed to be paragons of virtue, the embodiment of truth, justice and the American way?  Well, one out of three ain’t bad.  The reality is that it’s a lot easier to get people, in all senses of the word “get,” with a well-formed lie than it is with hard work and conformance to the rule of law.  If we just tweak the rule of law to meet the efficacy of lying, combined with trusting that our police would never take advantage of it, problem solved. Continue reading →

Even though we’ve never shared a beer, I kinda feel as if District of Nebraska Senior Judge Richard Kopf and I have become friends.  Sure, it’s just on the internet, but that’s how long distance friendships happen these days. And so when I read his post the other day, On being a dirty old man and how young women lawyers dress, I sucked in some wind and pondered what, if anything, I should do.

I thought about emailing Judge Kopf and telling him, “Dear Judge, are you fucking nuts? Take that down now. NOW!!!.” because I knew what would come.  But then, who am I to tell a judge what to do?  I twitted about it, which reflected my confusion:

RT @JudgeKopf: On being a dirty old man and how young women lawyers dress <I can’t even… Continue reading →

At the WaPo Conspiracy, Orin Kerr has been deconstructing an order by D.C. Magistrate Judge John Facciola for the search and seizure of email and social media accounts that, after concluding there was no probable cause, refused a warrant because he held none was needed.  Jeff Gamso explained why that was disturbing.

Orin has continued dissecting Mag. Facciola’s order, and come down to a very curious “strong suggestion” about how a warrant for emails should be executed:

[T]his Court can see no reasonable alternative other than to require the provider of an electronic communications service to perform the searches. Under the government’s demand that it be given everything, the government leaves the Court with only two options: deny the warrants — thus depriving the government of needed information — or issue warrants that are repugnant to the Fourth Amendment. Neither is viable.

In other words, rather than let the government rummage through a customer’s account at Google, where his gmail emails are held on a server down the hall from the juice bar, make Google do it.  Continue reading →