Tuesday, December 30, 2008

The FLDS had the right NOT TO BE SEARCHED IN THE FIRST PLACE

A while back, I found the blog "A Stitch in Haste" (not time, I stand corrected). I've no idea what the reason was, I ended up there as a result of my search for something. I have even less of an idea why it is that I clicked the link. I did, I liked something about the blog, and I bookmarked it as one of the 100 some odd blogs I review several times a week. It was a good idea. If You Need "Rights," Then You Don't Deserve Them?

"In response to [Officer] Hurliman’s request to see what was in his pocket, defendant 'reached in his pocket and removed a silver circular rustic metallic tin.' When Hurliman asked if he could look in, defendant became 'very agitated and said "no," ' said the tin belonged to his brother, and then put it back in his pocket. Hurliman told defendant that he believed the tin contained drugs. Defendant told him to 'prove it.'

Defendant’s demeanor raised no reasonable suspicion of criminal activity except in one respect — defendant’s objection to and apprehension of Hurliman’s requested patdown and search of the tin."


Those are the basic facts of the case. Drugs were found. This is the court's decision.

"A person’s reaction to a request for consent to search is not sufficient as a matter of law to support an objectively reasonable belief of criminal activity. As here, where a person has the right to refuse consent, the refusal to give consent to a search undoubtedly caused the officer to have a healthy suspicion that defendant was probably in illegal possession of something; but such a suspicion, however well founded, having been aroused merely on the basis of an assertion of ones constitutional rights, can play no part in creating probable cause for a search. We view defendants reaction to the inquiries concerning the patdown and the contents of the tin as merely an unsophisticated attempt to assert his right of privacy. Defendant’s reaction to a request for consent that he is constitutionally entitled to refuse cannot form the basis of reasonable suspicion."


KipEsquire, the Blogger observes;

"There is another negative outcome besides 'being caught' — and that’s 'being searched in the first place.'

Like I said, this case is neither high-profile nor particularly precedential. But it helps remind us that there is in fact a slippery slope regarding searches, subsequent to traffic stops, with less than probable cause."

Kip, found it at Fourth Amendment. This is at the center of the FLDS controversy. Yes, it was a good bet that if Law Enforcement kept looking they would find something, as evidenced by the eventual indictments, but the FLDS had the right NOT TO BE SEARCHED IN THE FIRST PLACE. The only remedy for such violations on the part of Law Enforcement, is to not reward them for overstepping their proper constitutional limits.



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3 comments:

ztgstmv said...

I believe this would set off flags in an appeals court's mind. As well as the fact that the FLDS men ACTUALLY STOOD in the way of LE to prevent them from searching their temple. That's asserting their constitutional rights right there.

Also, your post is pertinent to the CPS whole justification all along, i.e. that the children and women supposedly refused to cooperate, answer questions etc. That is asserting Constitutional rights! And CPS took THAT as probable cause something was up?? And how about the penalizing of Barbara Jessop because she asserted her Constitutional fifth amendment right! Sure it's civil court, but in practice it's the same concept: you can't penalize someone, draw conclusions about guilt, etc., solely because they asserted their Constitutional rights!

KipEsquire said...

That's a lot of huff-and-puff from someone who can't even get the name of the blog he's quoting from correctly.

The Pharisee said...

I guess I was too hasty. As the fictional Annie Savoy said, "Would you rather I was with him, calling out your name, or with you calling out his name?"

I probably got that wrong too, but I'll fix it.