NINTH CIRCUIT RULES THAT INNOCENT BEHAVIOR IS SUSPICIOUS

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

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“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.

 

FEDERAL JUDGE RULES THAT FIRST AMENDMENT DOES NOT PROTECT MAN ACCUSED OF PLOTTING TO KIDNAP, RAPE AND KILL WOMEN

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.

 

TWO FT. LAUDERDALE POLICE OFFICERS ARRESTED FOR SERIOUS MISCONDUCT

Two Ft. Lauderdale police department detectives have been arrested and charged with nearly twenty counts of racketeering, kidnapping, grand theft, extortion and official misconduct.

A spokesman for the Broward County State Attorney said that Detectives Brian Dodge and Billy Koepke “were involved in an ongoing pattern of criminal conduct that focused on stealing money and pills from patrons of pain clinics.”  Their arrests were the culmination of a long-term investigation by the FBI and the Fort Lauderdale Police Department.

According to the South Florida Sun Sentinel, the detectives “came under scrutiny after a hotel security video was found that contradicted their versions of two arrests they made at a Red Roof Inn.”  The investigation reportedly “turned up evidence that Koepke and Dodge claimed they found crack cocaine on a man who had none and stole several thousand dollars that should have been turned over as evidence.”

The Sun Sentinel also reported that Dodge had been suspended from the police force without pay in 2006 after an allegation was sustained that he used his position on several occasions between October 2004 and March 2006 to “fix” parking citations that had been issued to a friend.

 

NY POLICE OFFICER PLEADS GUILTY TO OFFICIAL MISCONDUCT AFTER HAVING INAPPROPRIATE SEXUAL CONTACT WITH WOMAN DURING TRAFFIC STOP

According to the Wall Street Journal, prosecutors claimed that Police Officer Garrett Mannerz pulled over a car in East Meadow, summoned one of the car’s female passengers to his police car, and “coerced her into touching him sexually.”

As reported by the WSJ, Mannerz let the car’s occupants go, but allegedly called one of them later for a date.  The woman apparently recorded the call and told police.

Mannerz has reportedly resigned from the Nassau County police force.

 

NYPD DETECTIVE IS FOUND GUILTY OF PLANTING DRUGS

Check out the New York Times article HERE.

According to the NYT, New York State Supreme Court Justice Gustin Reichbach, who presided over the criminal trial, “scolded the [NYPD] for what he described as a widespread culture of corruption endemic in its drug units,” and declared that “this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”

 

NJ GOVERNOR SIGNS “SEXTING” LEGISLATION

New Jersey teenagers caught “sexting” – using cell phones to text sexually explicit photos or post them online – can now avoid prosecution on child pornography charges under a new law signed by Gov. Chris Christie this week.

Check out the story here.

 

FLORIDA COURT RULES THAT DRIVERS HAVE FIRST AMENDMENT RIGHT TO BLAST MUSIC

A Florida court has struck down a Florida law that makes it illegal for a vehicle’s sound system to be “plainly audible at a distance of 25 feet or more from the motor vehicle” on the basis that playing loud music on the radio is constitutionally protected speech.

This comes on the heels of a lawsuit arguing that flashing headlights to warn oncoming traffic of the present of police vehicles is constitutionally protected speech.

Read more about it here.

PROTESTORS KETTLED AND MACED BY NYPD COPS

Despite the fact that the First Amendment guarantees ”the right of the people peaceably to assemble, and to petition the Government for a redress of grievances,”a group of female protesters affiliated with the Occupy Wall Street organization were “kettled” (corralled with plastic netting held by officers), a tactic used to contain and control protesters, then pepper-sprayed for good measure by New York’s Finest.  Check out this video of the incident:

NYPD COPS’ RACIST REMARKS CAUGHT ON WIRETAP

According to the Daily News, the wiretap recordings at the heart of the ticket-fixing probe captured conversations between police officers that were filled with racist and inflammatory remarks.

According to the article, ”prosecutors have worked feverishly to keep transcripts of the wiretapped calls from being made public.”  Apparently, Bronx juries have already acquitted two accused criminals arrested by cops embroiled in the scandal – including one man charged with attempted murder – in part because they did not believe the officers’ testimony.

17 NYPD POLICE OFFICERS INDICTED IN TICKET-FIX SCANDAL

A grand jury in the Bronx has indicted 17 police officers with bribery, perjury, official misconduct, and other crimes for allegedly having made traffic summonses “disappear” for fellow officers, their friends and relatives.  These officers — many of whom are officials working for the city’s largest police union, the Patrolmen’s Benevolent Association – are expected to be suspended, have their weapons seized and then appear in court for arraignment early next week.

Hundreds of police officers are reportedly linked to the scandal.

Read more here.

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