Ameer Benno Presents Lawline’s Second Annual SCOTUS Preview!

Last week, Erica Dubno and I presented Lawline’s Second Annual SCOTUS Preview.  We addressed the following critical cases that are to be decided by the Supreme Court of the United States in its 2018 Term:

  • Masterpiece Cakeshop v. Colorado Civil Rights Commission
  • Gill v. Whitford
  • Class v. U.S.
  • Jesner v. Arab Bank
  • McCoy v. Louisiana
  • Christie v. NCAA
  • Carpenter v. U.S.
  • Jennings v. Rodriguez

If you missed the live webcast, you can watch the two-hour presentation On Demand by clicking here!


In a recent court decision, the United States Court of Appeals for the Ninth Circuit ruled that a combination of non-suspicious driving characteristics can give rise to the suspicion of criminal activity sufficient to justify pulling over the motorist.

A border patrol agent in a marked border patrol vehicle observed motorist Rufino Ignacio Valdes-Vega driving a red Ford F-150 truck driving north on Interstate 15, about 70 miles north of the Mexican border.  Valdes-Vega was observed changing lanes without signalling and driving about ten miles per hour faster than other traffic that day.  When the border patrol agent pulled next to the red truck, which was clean and had Baja California license plates, Valdes-Vega, who was alone in the vehicle, kept his eyes on the road, something that the border patrol agent found suspicious.

The border patrol put on his lights and Valdes-Vega immediately pulled over.  The border patrol agent had not pulled Valdes-Vega over for any traffic violations (indeed, as Valdes-Vega’s attorney later pointed out to the court, border patrol agents do not enforce traffic laws), but because he wanted to search the truck.  And when he did (Valdes-Vega consented to the search), he found cocaine.  After being arrested and indicted, Valdes-Vega moved to suppress the drugs that were recovered from his vehicle on the basis that the vehicle stop violated his Fourth Amendment right to be free from unreasonable seizures, and therefore was illegal.  The trial court denied Valdes-Vega’s motion, and he entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress the cocaine.

After a three-judge panel of the Ninth Circuit reversed the trial court and suppressed the drugs, the Ninth Circuit decided to hear the case en banc.

A majority of the en banc court held that the vehicle stop was proper and affirmed the trial court’s decision denying suppression.  The majority explained that ”[t]he fact that Valdes-Vega’s truck had Mexican license plates made the possibility that it had recently crossed the border significantly more likely.”  The court majority further found the fact that Valdes-Vega was driving a truck to be “significant” because “trucks are suitable for carrying large amounts of contraband and make it difficult for agents to see into the vehicle.”  According to the majority, these otherwise innocuous factors taken together with the slightly fast driving gave the border patrol “an objective and particularized suspicion that Valdes-Vega was ‘engaged in wrongdoing’” as a smuggler.  The majority declared that

“Valdes-Vega urges us to resist this conclusion because he contends that innocuous factors remain so even when added together.  Zero plus zero equals zero, his argument runs. But … we decline to second-guess the agents’ decision to stop the truck for investigation. Even innocent, noncriminal acts can foster reasonable suspicion in the total context …. A series of innocent acts may be enough for reasonable suspicion justifying an investigatory stop, even though the circumstances amount to far less than probable cause.”

In a tersely worded three-judge dissent, Judge Harry Pregerson wrote that

“Border patrol agents stopped Valdes-Vega because of his Hispanic appearance

*    *    *

“Driving a clean Ford F-150 pickup is not suspicious. Driving with Baja plates is not suspicious. Driving 70 miles north of the U.S.-Mexico border is not suspicious. Driving with eyes kept on the road ahead is not suspicious. Driving faster than the flow of traffic and not signaling before lane changes on a major, busy California interstate highway is not suspicious. Driving while having Hispanic appearance is not suspicious.

“Driving without signaling lane changes and faster than the flow of traffic on a major, busy California interstate highway — not uncommon in California — is referred to by the majority as ‘perhaps one of the most important factors in the total circumstances here.’ Such driving, plus defendant’s Hispanic appearance, plus his eyes on the road, plus his driving a clean Ford F-150, plus the Baja plates, did not create a reasonable suspicion that criminal activity was afoot.”

So the upshot here seems to be that being too non-suspicious can, in itself, give the cops an “objective and particularized suspicion” of wrongdoing sufficient to justify stopping you.  But if you act at all suspicious, game’s over too.  Under this rubric, when, pray tell, will a government seizure ever be unreasonable?

Looks like the erosion of the Fourth Amendment is alive and well in the Ninth Circuit.



In another awful example of government intrusion upon First Amendment freedoms, the state of Michigan is defending its rejection of an anti-war license plate, saying children riding in cars and playing in their yards need to be protected from seeing the words “WAR SUX.”

Attorneys for the Michigan secretary of state’s office asked a judge this month to dismiss a lawsuit filed by the applicant for the “WAR SUX” vanity plate that accuses officials of violating his First Amendment rights.  Here’s the State of Michigan’s official position on this, as reported by the Houston Chronicle:

“[B]ecause vehicles often travel in residential neighborhoods, youth may be exposed to license plates from their yards or driveways,” said Ann Sherman, an assistant attorney general. “Courts have often upheld legislation aimed at protecting the physical and emotional well-being of youth, even where First Amendment rights are concerned.”

You’ve gotta be kidding me.  First, do license plates even rank on the list of threats to kids who play in their front yards?  Isn’t the real concern that our kids will be abducted by child predators or shot by an errant bullet?  But license plates (and an anti-war license plate at that)?  Come on.  Really?

Even putting that aside, let’s get this straight – the State of Michigan’s position is that so long as some idiot bureaucrat finds a particular expressive communication to be offensive and potentially visible to “youth”, the State can squash it on the pretense that doing so is necessary to protect the “physical and emotional well-being of youth”?  What’ll they crack down on next? Bumper stickers?  And after that? Jehovah’s Witnesses?  People who go door to door gathering signatures on a political candidate’s ballot petition?  Where does it end?

The Wolverine State might as well break out the gulags, because under for which it advocates, no kind of expression would be safe and the State’s power would be virtually limitless.   But that, of course, might be precisely what the  State wants.



New Jersey resident Michael Van Hise, Stuyvesant High School librarian Robert Asch, Massachusetts Veterans Affairs police chief Robert Meltz allegedly chatted over the internet about about kidnapping, raping and killing women – including Vanhise’s wife, his stepdaughter, his sister-in-law, and the sister-in-law’s minor children.

According to this article:

Vanhise was [already] tucked away in jail when undercover FBI agents met with Meltz and Asch starting in March, culminating in meetings that led to their arrest. Meltz allegedly instructed the first undercover agent on April 14 how to dispose of the body of his female colleague at “a desolate location in the woods in upstate New York.” Meltz said that wild animals would likely find and destroy her body before law enforcement could find it, prosecutors claim.

The next day, the same agent who spoke to Meltz met with Asch, who brought “two bags of tools intended to be used in the kidnapping, rape, torture, and murder of UC-3, including, but not limited to, a Taser gun, rope, a meat hammer, duct tape, gloves, cleaning supplies, zip ties, a dental retractor, two speculums, 12-inch skewers, pliers, a wireless modem, and a leg spreader,” the indictment states.

The men claimed that they lacked the intent to commit the crimes with which they were charged, and that they were merely taking part in online fantasy role-play.   On this basis, Van Hise argued that the kidnapping charge against him was barred by the First Amendment.  According to Van Hise, the kidnapping statute “is unconstitutional as applied to [him], because it prohibits his conduct[,] which consists of pure speech.”  Van Hise argued that:

“there is no evidence that [he] did anything other than talk about kidnapping. He did not have the ability, the intention, or even the actual desire to commit a kidnapping. He did not agree with anyone else to take these actions. Nor did he attempt to persuade or induce, his co-defendants or any other person to actually commit a kidnapping.”

In a December 31, 2013 decision, Judge Gardephe, who sits in the Southern District of New York, rejected this argument.

Citing U.S. v. Rahman, a Second Circuit case from 1999, Judge Gardephe pointed out that although the Second Circuit has stated that “courts must be vigilant to insure that prosecutions are not improperly based on the mere expression of unpopular ideas,” it has also made clear that where “the evidence shows that . . . speech[ ] crossed the line into criminal solicitation, procurement of criminal activity, or conspiracy to violate the laws, [a] prosecution is permissible.”  Judge Gardephe noted that ”[t]he First Amendment lends no protection to participation in a conspiracy, even if such participation is through speech.”

The court’s decision in this regard is grounded in a 1982 decision by the United States Supreme Court, New York v. Ferber, 458 U.S. 747 (1982).  In that case, the Supreme Court held that ”[i]t rarely has been suggested that the constitutional freedom for speech … extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.”  Id. at 761-62.

Because there was evidence that Van Hise’s “speech” crossed the line into a conspiracy to violate the law, the court determined that Van Hise’s prosecution was permissible.



Apparently, it’s not just institutions of “higher” learning that, although publicly claiming to exalt the robust exchange of ideas, actually seek to quash free expression if it embraces religion or, for that matter, endorses anything that might be considered not ”politically correct.”

According to this article, when the fifth grader’s parents protested, the school postponed the competition “until parents signed permission slips allowing their children to hear the speeches,” because a speech about religion “is not appropriate for fourth- and fifth-graders.”

Yeah, right.  I wonder what part was “inappropriate” in their minds.  Maybe it was the part where the fifth-grader talked about how “religion provides moral guidance for most of the 7 billion people on the Earth”?  Perhaps it was when he said, “Do not do to others what you do not want them to do to you,” and that “[t]his world would be a better place if everybody followed that rule.”

This school’s actions have abased, not venerated, our Constitution.  What message do they think this sends to the children they are supposed to be teaching?   What a disgrace.


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