5th amendment Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/5th-amendment/ Christian, Political, ‎‏‏‎Social & Legal Free Speech News | Ⓒ2024 Good News Media LLC | Shepherd for the Herd! God 1st Programming Fri, 11 Jul 2025 20:11:28 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.1 https://goodshepherdmedia.net/wp-content/uploads/2023/08/Good-Shepherd-News-Logo-150x150.png 5th amendment Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/5th-amendment/ 32 32 Prosecutor’s Obligation to Disclose Exculpatory Evidence https://goodshepherdmedia.net/prosecutors-obligation-to-disclose-exculpatory-evidence/ Fri, 26 Jan 2024 16:57:52 +0000 https://goodshepherdmedia.net/?p=12255 What is Exculpatory Evidence? – Definition, Examples & Importance
Exculpatory evidence is any evidence in a criminal trial that supports the idea that the defendant is not guilty. In this lesson, we’ll discuss what kind of evidence is considered exculpatory, plus examples; we’ll also examine how important it is in the legal system. Updated: 09/08/2021

Exculpatory: Definition

A convicted killer is out on parole and he kills again. Witnesses saw him thrust a knife in his victim and run out of an alley. They positively identified him in a lineup, and his DNA is found on the knife. After a guilty verdict, the defense moves to have the verdict set aside because the prosecutor discovered evidence that the killer was still logged in at work when the murder took place. Is that right?

Exculpatory evidence is evidence in a criminal trial that tends to show that the defendant is not guilty. ”Exculpatory” comes from the word ”exculpate,” which comes from two Latin words ex, ”from,” and culpa, ”blame.”

It typically works like this:

A defendant is charged with a crime, and both the prosecutor and defense attorney gather evidence to each make their case. If the prosecutor comes across any evidence that tends to show the defendant didn’t commit the crime, he or she has to turn it over to the defense. If the prosecutor neglects this step, then the case can be dismissed, retried, or even the defendant found not guilty.

Exculpatory Evidence

In Brady v. Maryland (1963), the Supreme Court held that exculpatory evidence withheld in a criminal trial can result in a re-hearing of the case. In this case, Brady claimed his friend, who had committed the murder with Brady, did the actual killing. Brady was convicted for murder and sentenced to death, but the prosecutor failed to tell a jury that the friend had already confessed to the killing.

The court stated that the jury needed to hear that evidence because it could assist them in their decision regarding Brady. From then on, any exculpatory evidence the prosecutor or law enforcement has is called Brady material, the requirement to turn Brady material over to the defense is called the Brady rule. Brady got a new hearing that resulted in a lifetime sentence instead.

But what other kind of evidence is exculpatory? The law says ”any evidence” that tends to show innocence of the defendant is included. This can include crime scene evidence, witness testimony, DNA results, and medical records.

Exculpatory Enough

If you’re a prosecutor or a police detective, how do you know which evidence is exculpatory enough? For example, if the defendant claims he was 300 miles away during the time of the murder, and he was driving a red 2003 Ford 150 pickup with a front decorative plate that says ”Hog Wild,” do you have to turn over all camera images that show a red Ford pickup getting gas or going through a toll booth?

No. In U.S. v. Bagely (1985), the court laid out the legal standard on whether evidence is Brady material. The defense has to show that the inclusion of the evidence might have reasonably resulted in a different outcome. So it wouldn’t be reasonable to show every red Ford pickup found hundreds of miles away at that time, but what about that picture of a red 2003 Ford 150 pickup with a front decorative plate that said ”Hog Wild”? Since it would be reasonable that this would change the outcome of the trial, it’s Brady material. source

The Prosecution’s Duty to Disclose Exculpatory Evidence

Criminal trials are serious business, and a defendant’s rights are enshrined in law. You have a right to due process. The prosecution is required to play fairly. Playing fairly means if the prosecution has evidence that you didn’t commit the offense charged or evidence that would reasonably be expected to help your defense, the prosecution must disclose that evidence to your criminal defense lawyer.

The Brady rule

The Brady rule refers to a Supreme Court case called Brady v. Maryland. The case dates back to 1963, and is a due process case under the 14th Amendment to the US Constitution. The Supreme Court ruled that when a prosecutor intentionally withholds exculpatory and material evidence from a defendant, that act violates the defendant’s due process rights. The withholding of the information is a “deliberate deception of court and jury.”

In Brady, two co-defendants were charged with murder while committing a robbery. Prior to the trial of the co-defendant Brady, the other co-defendant confessed to the murder. Even though the defense lawyers specifically asked for any statements by the co-defendant, the prosecutor intentionally did not disclose this crucial piece of evidence – the confession. Brady was found guilty and sentenced to death before his lawyer discovered the confession.

The US Supreme Court, based on this willful nondisclosure, vacated Brady’s sentence and ordered a new sentencing hearing. Today, the disclosure requirements imposed by Brady are well-known though prosecutors sometimes try to argue the evidence isn’t “material.”

Giglio vs. US.

In a more recent case, Giglio v. United States, the Supreme Court applied the Brady doctrine in a case involving the lack of credibility of a co-defendant. The prosecutor failed to disclose that a co-conspirator received immunity from prosecution in return for the co-conspirator’s testimony. The critical point is that the Supreme Court reasoned that the credibility of a witness is an exculpatory factor.

Experienced criminal defense lawyers routinely ask the prosecution for all exculpatory evidence. Exactly what evidence is exculpatory, what evidence affects credibility, and what evidence is material is decided on a case-by-case basis. source

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence.

Brady rule

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The Brady rule, named after Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense. A “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused–evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.

If the prosecution does not disclose material exculpatory evidence under this rule, and prejudice has ensued, the evidence will be suppressed. The evidence will be suppressed regardless of whether the prosecutor knew the evidence was in his or her possession, or whether or not the prosecutor intentionally or inadvertently withheld the evidence from the defense.

Further, in cases subsequent to Brady, the Supreme Court has eliminated the requirement for a defendant to have requested a favorable information, stating that the Prosecution has a constitutional duty to disclose, that is triggered by the potential impact of favorable but undisclosed evidence See Kyles v. Whitley 514 U.S. 419, 434 (1995) and United States. v. Bagley, 473 U.S. 667 (1985).

The defendant bears the burden to prove that the undisclosed evidence was both material and favorable.  In other words, the defendant must prove that there is a “reasonable probability” that the outcome of the trial would have been different, had the evidence been disclosed by the prosecutor. See Kyles, 514 U.S. at 433 (1995).  Bagley and Kyles Court further defined the “materiality” standard, outlining the four aspects of materiality.  First, the “reasonable probability” of a different result is not a question of whether the defendant would more likely than not have received a different verdict with the evidence, but whether the government’s evidentiary suppression undermines the confidence in the outcome of the trial.  The second aspect is that it is not a sufficiency of evidence test, and the defendant only has to show that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict.  Third aspect is that there is no need for a harmless error review, because a Brady violation, by definition, could not be treated as a harmless error.  Fourth and final aspect of materiality the Kyles Court stressed was that the suppressed evidence must be considered collective, not item by item, looking at the cumulative effect to determine whether a reasonable probability is reached.  See Kyles, 514 U.S. at 433-438. source

9-5.000 – ISSUES RELATED TO DISCOVERY, TRIALS, AND OTHER PROCEEDINGS

9-5.001 Policy Regarding Disclosure of Exculpatory and Impeachment Information
9-5.002 Criminal Discovery
9-5.003 Criminal Discovery Involving Forensic Evidence and Experts
9-5.004 Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases
9-5.100 Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”)
9-5.110 Testimony of FBI Laboratory Examiners
9-5.150 Authorization to Close Judicial Proceedings to Members of the Press and Public

9-5.001 – POLICY REGARDING DISCLOSURE OF EXCULPATORY AND IMPEACHMENT INFORMATION

  1. Purpose. Consistent with applicable federal statutes, rules, and case law, the policy set forth here is intended to promote regularity in disclosure practices, through the reasoned and guided exercise of prosecutorial judgment and discretion by attorneys for the government, with respect to the government’s obligation both to disclose exculpatory and impeachment information to criminal defendants and to seek a just result in every case. The policy is intended to ensure timely disclosure of an appropriate scope of exculpatory and impeachment information so as to ensure that trials are fair. The policy, however, recognizes that other interests, such as witness security and national security, are also critically important, see JM 9-21.000, and that if disclosure prior to trial might jeopardize these interests, disclosure may be delayed or restricted (e.g. pursuant to the Classified Information Procedures Act). This policy is not a substitute for researching the legal issues that may arise in an individual case. Additionally, this policy does not alter or supersede the policy that requires prosecutors to disclose “substantial evidence that directly negates the guilt of a subject of the investigation” to the grand jury before seeking an indictment, see JM 9-11.233.
  2. Constitutional obligation to ensure a fair trial and disclose material exculpatory and impeachment evidence. Government disclosure of material exculpatory and impeachment evidence is part of the constitutional guarantee to a fair trial. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Because they are Constitutional obligations, Brady and Giglio evidence must be disclosed regardless of whether the defendant makes a request for exculpatory or impeachment evidence. Kyles v. Whitley, 514 U.S. 419, 432-33 (1995). Neither the Constitution nor this policy, however, creates a general discovery right for trial preparation or plea negotiations. U.S. v. Ruiz, 536 U.S. 622, 629 (2002); Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
    1. Materiality and Admissibility. Exculpatory and impeachment evidence is material to a finding of guilt—and thus the Constitution requires disclosure—when there is a reasonable probability that effective use of the evidence will result in an acquittal. United States v. Bagley, 475 U.S. 667, 676 (1985). Recognizing that it is sometimes difficult to assess the materiality of evidence before trial, prosecutors generally must take a broad view of materiality and err on the side of disclosing exculpatory and impeaching evidence. Kyles, 514 U.S. at 439. While ordinarily, evidence that would not be admissible at trial need not be disclosed, this policy encourages prosecutors to err on the side of disclosure if admissibility is a close question.
    2. The prosecution team. It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all the members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.Kyles, 514 U.S. at 437.
  3. Disclosure of exculpatory and impeachment information beyond that which is constitutionally and legally required. Department policy recognizes that a fair trial will often include examination of relevant exculpatory or impeachment information that is significantly probative of the issues before the court but that may not, on its own, result in an acquittal or, as is often colloquially expressed, make the difference between guilt and innocence. As a result, this policy requires disclosure by prosecutors of information beyond that which is “material” to guilt as articulated in Kyles v. Whitley, 514 U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263, 280-81 (1999). The policy recognizes, however, that a trial should not involve the consideration of information which is irrelevant or not significantly probative of the issues before the court and should not involve spurious issues or arguments which serve to divert the trial process from examining the genuine issues. Information that goes only to such matters does not advance the purpose of a trial and thus is not subject to disclosure.
    1. Additional exculpatory information that must be disclosed. A prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime.
    2. Additional impeachment information that must be disclosed. A prosecutor must disclose information that either casts a substantial doubt upon the accuracy of any evidence—including but not limited to witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence. This information must be disclosed regardless of whether it is likely to make the difference between conviction and acquittal of the defendant for a charged crime.
    3. Information. Unlike the requirements of Brady and its progeny, which focus on evidence, the disclosure requirement of this section applies to information regardless of whether the information subject to disclosure would itself constitute admissible evidence.
    4. Cumulative impact of items of information. While items of information viewed in isolation may not reasonably be seen as meeting the standards outlined in paragraphs 1 and 2 above, several items together can have such an effect. If this is the case, all such items must be disclosed.
  4. Timing of disclosure. Due process requires that disclosure of exculpatory and impeachment evidence material to guilt or innocence be made in sufficient time to permit the defendant to make effective use of that information at trial. See, e.g. Weatherford v. Bursey, 429 U.S. 545, 559 (1997); United States v. Farley, 2 F.3d 645, 654 (6th Cir. 1993). In most cases, the disclosures required by the Constitution and this policy will be made in advance of trial.
    1. Exculpatory information. Exculpatory information must be disclosed reasonably promptly after it is discovered. This policy recognizes that exculpatory information that includes classified or otherwise sensitive national security material may require certain protective measures that may cause disclosure to be delayed or restricted (e.g. pursuant to the Classified Information Procedures Act).
    2. Impeachment information. Impeachment information, which depends on the prosecutor’s decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. In some cases, however, a prosecutor may have to balance the goals of early disclosure against other significant interests—such as witness security and national security—and may conclude that it is not appropriate to provide early disclosure. In such cases, required disclosures may be made at a time and in a manner consistent with the policy embodied in the Jencks Act, 18 U.S.C. § 3500.
    3. Exculpatory or impeachment information casting doubt upon sentencing factors. Exculpatory and impeachment information that casts doubt upon proof of an aggravating factor at sentencing, but that does not relate to proof of guilt, must be disclosed no later than the court’s initial presentence investigation.
    4. Supervisory approval and notice to the defendant. A prosecutor must obtain supervisory approval not to disclose impeachment information before trial or not to disclose exculpatory information reasonably promptly because of its classified nature. Upon such approval, notice must be provided to the defendant of the time and manner by which disclosure of the exculpatory or impeachment information will be made.
  5. Training. All new federal prosecutors assigned to criminal matters and cases shall complete, within 12 months of employment, designated training through the Office of Legal Education on Brady/Giglio, and general disclosure obligations and policies. All federal prosecutors assigned to criminal matters and cases shall annually complete two hours of training on the government’s disclosure obligations and policies. This annual training shall be provided by the Office of Legal Education or, alternatively, any United States Attorney’s Office or DOJ component.
  6. Comment. This policy establishes guidelines for the exercise of judgment and discretion by attorneys for the government in determining what information to disclose to a criminal defendant pursuant to the government’s disclosure obligation as set out in Brady v. Maryland and Giglio v. United States and its obligation to seek justice in every case. This policy also establishes training requirements for federal prosecutors in this area. As the Supreme Court has explained, disclosure is constitutionally required when evidence in the possession of the prosecutor or prosecution team is material to guilt, innocence or punishment. Under this policy, the government’s disclosure will exceed its constitutional obligations. Thus, this policy encourages prosecutors to err on the side of disclosure in close questions of materiality and identifies standards that favor greater disclosure in advance of trial through the production of exculpatory information that is inconsistent with any element of any charged crime and impeachment information that casts a substantial doubt upon either the accuracy of any evidence the government intends to rely on to prove an element of any charged crime or that might have a significant bearing on the admissibility of prosecution evidence. This expanded disclosure policy, however, does not create a general right of discovery in criminal cases. Nor does it provide defendants with any additional rights or remedies. Where it is unclear whether evidence or information should be disclosed, prosecutors are encouraged to reveal such information to defendants or to the court for inspection in camera and, where applicable, seek a protective order from the Court. By doing so, prosecutors will ensure confidence in fair trials and verdicts. The United States Attorneys’ Offices and Department components involved in criminal prosecutions are also encouraged to undertake periodic training for paralegals and to cooperate with and assist law enforcement agencies in providing education and training to agency personnel concerning the government’s disclosure obligations and developments in relevant case law.[updated January 2020] [cited in JM 9-5.100]

 

9-5.002- CRIMINAL DISCOVERY

The discovery obligations of federal prosecutors are generally established by Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).  Section 9-5.001 of the United States Attorney’s Manual describes the Department’s policy for disclosure of exculpatory and impeachment information. In order to meet discovery obligations in a given case, Federal prosecutors must be familiar with these authorities and with the judicial interpretations and local rules that discuss or address the application of these authorities to particular facts. In addition, it is important for prosecutors to consider thoroughly how to meet their discovery obligations in each case.  Toward that end, the Department has adopted the policies for prosecutors regarding criminal discovery set forth below. These policies are intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of justice.  The policies are subject to legal precedent, court orders, and local rules.

 

By following the steps described below and being familiar with laws and policies regarding discovery obligations, prosecutors are more likely to meet all legal requirements, to make considered decisions about disclosures in a particular case, and to achieve a just result in every case. Prosecutors are reminded to consult with the designated criminal discovery coordinator in their office when they have questions about the scope of their discovery obligations. Rules of Professional Conduct in most jurisdictions also impose ethical obligations on prosecutors regarding discovery in criminal cases. Prosecutors are also reminded to contact the Professional Responsibility Advisory Office when they have questions about those or any other ethical responsibilities.

 

Step I: Gathering and Reviewing Discoverable Information

“Discovery” or “discoverable information,” and the duty to search for it, includes information required to be disclosed by Fed.R.Crim.P. 16 and 26.2, the Jencks Act, Brady, and Giglio, and additional information disclosable pursuant to this policy.

 

A. Where to look: The Prosecution Team

JM 9-5.001 states:

It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecutionteam. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.

This search duty also extends to information prosecutors are required to disclose under Federal Rules of Criminal Procedure 16 and 26.2 and the Jencks Act.

In most cases, “the prosecution team” will include the agents and law enforcement officers within the relevant district working on the case. In multi-district investigations, investigations that include both Assistant United States Attorneys and prosecutors from a Department litigating component or other United States Attorney’s Office (USAO), and parallel criminal and civil proceedings, this definition will necessarily be adjusted to fit the circumstances. In addition, in complex cases that involve parallel proceedings with regulatory agencies (SEC, FDIC, EPA, etc.), or other non-criminal investigative or intelligence agencies, the prosecutor should consider whether the relationship with the other agency is close enough to make it part of the prosecution team for discovery purposes.

 

Some factors to be considered in determining whether to review potentially discoverable information from another federal agency include:

  • Whether the prosecutor and the agency conducted a joint investigation or shared resources related to investigating the case;
  • Whether the agency played an active role in the prosecution, including conducting arrests or searches, interviewing witnesses, developing prosecutorial strategy, participating in targeting discussions, or otherwise acting as part of the prosecution team;
  • Whether the prosecutor knows of and has access to discoverable information held by the agency;
  • Whether the prosecutor has obtained other information and/or evidence from the agency;
  • The degree to which information gathered by the prosecutor has been shared with the agency;
  • Whether a member of an agency has been made a Special Assistant United States Attorney;
  • The degree to which decisions have been made jointly regarding civil, criminal, or administrative charges; and
  • The degree to which the interest’s of the parties in parallel proceedings diverge such that information gathered by one party is not relevant to the other party.

Many cases arise out of investigations conducted by multi-agency task forces or otherwise involving state law enforcement agencies. In such cases, prosecutors should consider (1) whether state or local agents are working on behalf of the prosecutor or are under the prosecutor’s control; (2) the extent to which state and federal governments are part of a team, are participating in a joint investigation, or are sharing resources; and (3) whether the prosecutor has ready access to the evidence. Courts will generally evaluate the role of a state or local law enforcement agency on a case-by-case basis. Therefore, prosecutors should make sure they understand the law in their circuit and their office’s practice regarding discovery in cases in which a state or local agency participated in the investigation or on a task force that conducted the investigation.

 

Prosecutors are encouraged to err on the side of inclusiveness when identifying the members of the prosecution team for discovery purposes. Carefully considered efforts to locate discoverable information are more likely to avoid future litigation over Brady and Giglio issues and avoid surprises at trial.

 

Although the considerations set forth above generally apply in the context of national

security investigations and prosecutions, special complexities arise in that context.  Prosecutors should begin considering potential discovery obligations early in an investigation that has national security implications and should also carefully evaluate their discovery obligations prior to filing charges.  This evaluation should consider circuit and district precedent and include consultation with national security experts in their own offices and in the National Security Division.

 

B.  What to Review

To ensure that all discovery is disclosed on a timely basis, generally all potentially discoverable material within the custody or control of the prosecution team should be reviewed.  The review process should cover the following areas;

  1. The Investigative Agency’s Files: With respect to Department of Justice law enforcement agencies, with limited exceptions, the prosecutor should be granted access to the substantive case file and any other file or document the prosecutor has reason to believe may contain discoverable information related to the matter being prosecuted.[1]  Therefore, the prosecutor can personally review the file or documents or may choose to request production of potentially discoverable materials from the case agents. With respect to outside agencies, the prosecutor should request access to files and/or production of all potentially discoverable material.  The investigative agency’s entire investigative file, including documents such as FBI Electronic Communications (ECs), inserts, emails, etc. should be reviewed for discoverable information. If such information is contained in a document that the agency deems to be an “internal” document such as an email, an insert, an administrative document, or an EC, it may not be necessary to produce the internal document, but it will be necessary to produce all of the discoverable information contained in it. Prosecutors should also discuss with the investigative agency whether files from other investigations or non-investigative files such as confidential source files might contain discoverable information. Those additional files or relevant portions thereof should also be reviewed as necessary.
  2. Confidential informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS) Files: The credibility of cooperating witnesses or informants will always be at issue if they testify during a trial.  Therefore, prosecutors are entitled to access to the agency file for each testifying CI, CW, CHS, or CS.  Those files should be reviewed for discoverable information and copies made of relevant portions for discovery purposes. The entire informant/source file, not just the portion relating to the current case, including all proffer, immunity and other agreements, validation assessments, payment information, and other potential witness impeachment information should be included within this review.
    If a prosecutor believes that the circumstances of the case warrant review of a non-testifying source’s file, the prosecutor should follow the agency’s procedures for requesting the review of such a file.
    Prosecutors should take steps to protect the non-discoverable, sensitive information found within a CI, CW, CHS, or CS file.  Further, prosecutors should consider whether discovery obligations arising from the review of CI, CW, CHS, and CS files may be fully discharged while better protecting government or witness interests such as security or privacy via a summary letter to defense counsel rather than producing the record in its entirety.
    Prosecutors must always be mindful of security issues that may arise with respect to disclosures from confidential source files. Prior to disclosure, prosecutors should consult with the investigative agency to evaluate any such risks and to develop a strategy for addressing those risks or minimizing them as much as possible, consistent with discovery obligations
  3. Evidence and Information Gathered During the Investigation: Generally, all evidence and information gathered during the investigation should be reviewed, including anything obtained during searches or via subpoenas, etc.  As discussed more fully below in Step 2, in cases involving a large volume of potentially discoverable information, prosecutors may discharge their disclosure obligations by choosing to make the voluminous information available to the defense.
  4. Document or Evidence Gathered by Civil Attorneys and/or Regulatory Agency in Parallel Civil Investigations: If a prosecutor has determined that a regulatory agency such as the SEC is a member of the prosecution team for purposes of defining discovery obligations, that agency’s files should be reviewed. Of course, if a regulatory agency is not part of the prosecution team but is conducting an administrative investigation or proceeding involving the same subject matter as a criminal investigation, prosecutors may very well want to ensure that those files are reviewed not only to locate discoverable information but to locate inculpatory information that may advance the criminal case. Where there is an ongoing parallel civil proceeding in which Department civil attorneys arc participating, such as a qui tam case, the civil case files should also be reviewed.
  5. Substantive Case-Related Communications: “Substantive” case-related communications may contain discoverable information. Those communications that contain discoverable information should be maintained in the case file or otherwise preserved in a manner that associates them with the case or investigation. “Substantive” case-related communications are most likely to occur (1) among prosecutors and/or agents, (2) between prosecutors and/or agents and witnesses and/or victims, and (3) between victim-witness coordinators and witnesses and/or victims. Such communications may be memorialized in emails, memoranda, or notes. “Substantive” communications include factual reports about investigative activity, factual discussions of the relative merits of evidence, factual information obtained during interviews or interactions with witnesses/victims, and factual issues relating to credibility. Communications involving case impressions or investigative or prosecutive strategies without more would not ordinarily be considered discoverable, but substantive case-related communications should be reviewed carefully to determine whether all or part of a communication (or the information contained therein) should be disclosed. Prosecutors should also remember that with few exceptions (see, e.g., Fed.R.Crim.P. 16(a)(I)(B)(ii)), the format of the information does not determine whether it is  discoverable. For example, material exculpatory information that the prosecutor receives during a conversation with an agent or a witness is no less discoverable than if that same information were contained in an email. When the discoverable information contained in an email or other communication is fully memorialized elsewhere, such as in a report of interview or other document(s), then the disclosure of the report of interview or other document(s) will ordinarily satisfy the disclosure obligation.
  6. Potential Giglio Information Relating to Law Enforcement Witnesses: Prosecutors should have candid conversations with the federal agents with whom they work regarding any potential Giglio issues, and they should follow the procedure established in JM 9-5.100 whenever necessary before calling the law enforcement employee as a witness. Prosecutors should be familiar with circuit and district court precedent and local practice regarding obtaining Giglio information from state and local law enforcement officers.
  7. Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants: All potential Giglio information known by or in the possession of the prosecution team relating to non-law enforcement witnesses should be gathered and reviewed. That information includes, but is not limited to:
  • Prior inconsistent statements (possibly including inconsistent attorney proffers, see United States v. Triumph Capital Group, 544 F.3d 149 (2d Cir. 2008))
  • Statements or reports reflecting witness statement variations (see below)
  • Benefits provided to witnesses including:
    • Dropped or reduced charges
    • Immunity
    • Expectations of  downward departures or motions for reduction of sentence
    • Assistance in a state or local criminal proceeding
    • Considerations regarding forfeiture of assets
    • Stays of deportation or other immigration status considerations
    • S-Visas
    • Monetary benefits
    • Non-prosecution agreements
    • Letters to other law enforcement officials (e.g. stale prosecutors, parole boards) setting forth the extent of a witness’s assistance or making substantive recommendations on the witness’s behalf
    • Relocation assistance
    • Consideration or benefits to culpable or at risk third-parties
  • Other known conditions that could affect the witness’s bias such as:
    • Animosity toward defendant
    • Animosity toward a group of which the defendant is a member or with which the defendant is affiliated
    • Relationship with victim
    • Known but uncharged criminal conduct (that may provide an incentive to curry favor with a prosecutor)
  • Prior acts under Fed.R.Evid. 608
  • Prior convictions under Fed.R.Evid. 609
  • Known substance abuse or mental health issues or other issues that could affect the witness’s ability to perceive and recall events
  1. Information Obtained in Witness Interviews: Although not required by law, generally speaking, witness interviews[2] should be memorialized by the agent.[3]  Agent and prosecutor notes and original recordings should be preserved, and prosecutors should confirm with agents that substantive interviews should be memorialized. When a prosecutor participates in an interview with an investigative agent, the prosecutor and agent should discuss note-taking responsibilities and memorialization before the interview begins (unless the prosecutor and the agent have established an understanding through prior course of dealing). Whenever possible, prosecutors should not conduct an interview without an agent present to avoid the risk of making themselves a witness to a statement and being disqualified from handling the case if the statement becomes an issue. If exigent circumstances make it impossible to secure the presence of an agent during an interview, prosecutors should try to have another office employee present. Interview memoranda of witnesses expected to testify, and of individuals who provided relevant information but are not expected to testify, should be reviewed.
    1. Witness Statement Variations and the Duty to Disclose: Some witnesses’ statements will vary during the course of an interview or investigation. For example, they may initially deny involvement in criminal activity, and the information they provide may broaden or change considerably over the course of time, especially if there are a series of debriefings that occur over several days or weeks. Material variances in a witness’s statements should be memorialized, even if they are within the same interview, and they should be provided to the defense as Giglio information.
    2. Trial Preparation Meetings with Witnesses: Trial preparation meetings with witnesses generally need not be memorialized. However, prosecutors should be particularly attuned to new or inconsistent information disclosed by the witness during a pre-trial witness preparation session. New information that is exculpatory or impeachment information should be disclosed consistent with the provisions of JM 9-5.001 even if the information is first disclosed in a witness preparation session. Similarly, if the new information represents a variance from the witness’s prior statements, prosecutors should consider whether memorialization and disclosure is necessary consistent with the provisions of subparagraph (a) above.
    3. Agent Notes: Agent notes should be reviewed if there is a reason to believe that the notes are materially different from the memorandum, if a written memorandum was not prepared, if the precise words used by the witness are significant, or if the witness disputes the agent’s account of the interview. Prosecutors should pay particular attention to agent notes generated during an interview of the defendant or an individual whose statement may be attributed to a corporate defendant. Such notes may contain information that must be disclosed pursuant to Fed.R.Crim.P. 16(a)(I)(A)-(C) or may themselves be discoverable under Fed.R.Crim.P. 16(a)(I)(B). See, e.g., United States v. Clark, 385 F.3d 609, 619-20 (6th Cir. 2004) and United States v. Vaffee, 380 F.Supp.2d 11, 2-14 (D. Mass. 2005).

Step 2:  Conducting the Review

 

Having gathered the information described above, prosecutors must ensure that the material is reviewed to identify discoverable information. It would be preferable if prosecutors could review the information themselves in every case, but such review is not always feasible or necessary. The prosecutor is ultimately responsible for compliance with discovery obligations.  Accordingly, the prosecutor should develop a process for review of pertinent information to ensure that discoverable information is identified. Because the responsibility for compliance with discovery obligations rests with the prosecutor, the prosecutor’s decision about how to conduct this review is controlling. This process may involve agents, paralegals, agency counsel, and computerized searches. Although prosecutors may delegate the process and set forth criteria for identifying potentially discoverable information, prosecutors should not delegate the disclosure determination itself. In cases involving voluminous evidence obtained from third parties, prosecutors should consider providing defense access to the voluminous documents to avoid the possibility that a well-intentioned review process nonetheless fails to identify material discoverable evidence. Such broad disclosure may not be feasible in national security cases involving classified information.

 

Step 3: Making the Disclosures

 

The Department’s disclosure obligations are generally set forth in Fed.R.Crim.P. 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady, and Giglio (collectively referred to herein as “discovery obligations”). Prosecutors must familiarize themselves with each of these provisions and controlling case law that interprets these provisions. In addition, prosecutors should be aware that Section 9-5.001 details the Department’s policy regarding the disclosure of exculpatory and impeachment information and provides for broader disclosures than required by Brady and Giglio. Prosecutors are also encouraged to provide discovery broader and more comprehensive than the discovery obligations. If a prosecutor chooses this course, the defense should be advised that the prosecutor is electing to produce discovery beyond what is required under the circumstances of the case but is not committing to any discovery obligation beyond the discovery obligations set forth above.

 

  1. Considerations Regarding the Scope and Timing of the Disclosures: Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy resolution of many cases.  It also provides a margin of error in case the prosecutor’s good faith determination of the scope of appropriate discovery is in error. Prosecutors are encouraged to provide broad and early discovery consistent with any countervailing considerations. But when considering providing discovery beyond that required by the discovery obligations or providing discovery sooner than required, prosecutors should always consider any appropriate countervailing concerns in the particular case, including, but not limited to: protecting victims and witnesses from harassment or intimidation; protecting the privacy interests of witnesses; protecting privileged information; protecting the integrity of ongoing investigations; protecting the trial from efforts at obstruction: protecting national security interests; investigative agency concerns; enhancing the likelihood of receiving reciprocal discovery by defendants; any applicable legal or evidentiary privileges; and other strategic considerations that enhance the likelihood of achieving a just result in a particular case. In most jurisdictions, reports of interview (ROIs) of testifying witnesses are not considered Jencks material unless the report reflects the statement of the witness substantially verbatim or the witness has adopted it. The Working Group determined that practices differ among the USAOs and the components regarding disclosure of ROIs of testifying witnesses. Prosecutors should be familiar with and comply with the practice of their offices.
    Prosecutors should never describe the discovery being provided as “open file.” Even if the prosecutor intends to provide expansive discovery, it is always possible that something will be inadvertently omitted from production and the prosecutor will then have unintentionally misrepresented the scope of materials provided. Furthermore, because the concept of the “file” is imprecise, such a representation exposes the prosecutor to broader disclosure requirements than intended or to sanction for failure to disclose documents, e.g., agent notes or internal memos, that the court may deem to have been part of the “file.”
    When the disclosure obligations are not clear or when the considerations above conflict with the discovery obligations, prosecutors may seek a protective order from the court addressing the scope, timing, and form of disclosures.
  2. Timing: Exculpatory information, regardless of whether the information is memorialized, must be disclosed to the defendant reasonably promptly after discovery. Impeachment information, which depends on the prosecutor’s decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. See JM 9-5.001. Section 9-5.001 also notes, however, that witness security, national security, or other issues may require that disclosures of impeachment information be made at a time and in a manner consistent with the policy embodied in the Jencks Act. Prosecutors should be attentive to controlling law in their circuit and district governing disclosure obligations at various stages of litigation, such as pre-trial hearings, guilty pleas, and sentencing.
    Prosecutors should consult the local discovery rules for the district in which a case has been indicted. Many districts have broad, automatic discovery rules that require Rule 16 materials to be produced without a request by the defendant and within a specified time frame, unless a court order has been entered delaying discovery, as is common in complex cases. Prosecutors must comply with these local rules, applicable case law, and any final court order regarding discovery. In the absence of guidance from such local rules or court orders, prosecutors should consider making Rule 16 materials available as soon as is reasonably practical but must make disclosure no later than a reasonable time before trial. In deciding when and in what format to provide discovery, prosecutors should always consider security concerns and the other factors set forth in subparagraph A above. Prosecutors should also ensure that they disclose Fed.R.Crim.P. 16(a)(1)(E) materials in a manner that triggers the reciprocal discovery obligations in Fed.R.Crim.P. 16(b)(1).
    Discovery obligations are continuing, and prosecutors should always be alert to developments occurring up to and through trial of the case that may impact their discovery obligations and require disclosure of information that was previously not disclosed.
  3. Form of Disclosure: There may be instances when it is not advisable to turn over discoverable information in its original form, such as when the disclosure would create security concerns or when such information is contained in attorney notes, internal agency documents, confidential source documents, Suspicious Activity Reports, etc. If discoverable information is not provided in its original form and is instead provided in a letter to defense counsel, including particular language, where pertinent, prosecutors should take great care to ensure that the full scope of pertinent information is provided to the defendant.

Step 4: Making a Record

One of the most important steps in the discovery process is keeping good records regarding disclosures. Prosecutors should make a record of when and how information is disclosed or otherwise made available. While discovery matters are often the subject of litigation in criminal cases, keeping a record of the disclosures confines the litigation to substantive matters and avoids time-consuming disputes about what was disclosed. These records can also be critical when responding to petitions for post-conviction relief, which are often filed long after the trial of the case. Keeping accurate records of the evidence disclosed is no less important than the other steps discussed above, and poor records can negate all of the work that went into taking the first three steps.

Comment: Compliance with discovery obligations is important for a number of reasons. First and foremost, however, such compliance will facilitate a fair and just result in every case, which is the Department’s singular goal in pursuing a criminal prosecution. This section does not and could not answer every discovery question because those obligations are often fact specific. However, prosecutors have at their disposal an array of resources intended to assist them in evaluating their discovery obligations including supervisors, discovery coordinators in each office, the Professional Responsibility Advisory Office, and online resources available on the Department’s intranet website, not to mention the experienced career prosecutors throughout the Department. And, additional resources are being developed through efforts that will be overseen by a full-time discovery expert who will be detailed to Washington from the field. By evaluating discovery obligations pursuant to the methodical and thoughtful approach set forth in this guidance and taking advantage of available resources, prosecutors are more likely to meet their discovery obligations in every case and in so doing achieve a just and final result in every criminal prosecution.

[1] Nothing in this section alters the Department’s Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses contained in JM §9-5.100.

 

[2] Interview” as used herein refers to a formal question and answer session with a potential witness conducted for the purpose of obtaining information pertinent to a matter or case. It does not include conversations with a potential witness for the purpose of scheduling or attending to other ministerial matters. However, potential witnesses may provide substantive information outside of a formal interview. Substantive, case-related communications are addressed above.

 

[3] In those instances in which an interview was audio or video recorded, further memorialization will generally not be necessary.

 

[added December 2017]

 

9-5.003 – CRIMINAL DISCOVERY INVOLVING FORENSIC EVIDENCE AND EXPERTS

Forensic science covers a variety of fields, including such specialties as DNA testing, chemistry, and ballistics and impression analysis, among others. As a general guiding rule, and allowing for the facts and circumstances of individual cases, prosecutors should provide broad discovery relating to forensic science evidence as outlined here.  Disclosure of information relating to forensic science evidence in discovery does not mean that the Department concedes the admissibility of that information, which may be litigated simultaneously with or subsequent to disclosure.

 

The Duty to Disclose, Generally

 

The prosecution’s duty to disclose is generally governed by Federal Rules of Criminal Procedure 16 and 26.2, the Jencks Act (18 U.S.C. §3500), Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). In addition, JM 9-5.001 of the United States Attorney’s Manual describes the Department’s policy for disclosure of exculpatory and impeachment material.

 

Rule 16 of the Federal Rules of Criminal Procedure establishes three disclosure responsibilities for prosecutors that may be relevant to forensic evidence.  First, under Fed.R.Crim.P. 16(a)(1)(F), the government must, upon request of the defense, turn over the results or reports of any scientific test or experiment (i) in the government’s possession, custody or control, (ii) that an attorney for the government knows or through due diligence could know, and (iii) that would be material to preparing the defense or that the government intends to use at trial. Second, under Fed. R. Crim. P. 16(a)(1)(G), if requested by the defense, the government must provide a written summary of any expert testimony the government intends to use at trial. At a minimum, this summary must include the witness’s opinions, the bases and reasons for those opinions, and the expert’s qualifications. Third, under Fed. R. Crim. P. 16(a)(1)(E), if requested by the defense, the government must produce documents and items material to preparing the defense that are in the possession, custody, or control of the government. This may extend to records documenting the tests performed, the maintenance and reliability of tools used to perform those tests, and/or the methodologies employed in those tests.

 

Both the Jencks Act and Brady/Giglio may also come into play in relation to forensic evidence. For example, a written statement (report, email, memo) by a testifying forensic witness may be subject to disclosure under the Jencks Act if it relates to the subject matter of his or her testimony. Information providing the defense with an avenue for challenging test results may be Brady/Giglio information that must be disclosed. And, for forensic witnesses employed by the government, Giglio information must be gathered from the employing agency and reviewed for possible disclosure. These are the minimum requirements, and the Department’s discovery policies call for disclosure beyond these thresholds.

 

The Duty to Disclose in Cases with Forensic Evidence and Experts

 

The Department’s policy to provide discovery over and above the minimum legal thresholds applies to cases with forensic evidence. Rule 16’s disclosure requirements – disclosing the results of scientific tests (16(a)(l)(F)), the witness’ written summary (16(a)(l)(G)), and documents and items material to preparing the defense (16(a)( l)(E)) – are often jointly satisfied when presenting expert forensic testimony, since disclosure of the test results, the bases for those results, and the expert’s qualifications will often provide all the necessary information material to preparation of the defense. But, depending on the complexity of the forensic evidence, or where multiple forensic tests have been performed, the process can be complicated because it may require the prosecutor to work in tandem with various forensic scientists to identify and prepare additional relevant information for disclosure. Although prosecutors generally should consult with forensic experts to understand the tests or experiments conducted, responsibility for disclosure ultimately rests with the prosecutor assigned to the case. In meeting obligations under Rule 16(a)(l)(E), (F), and (G), the Jencks Act, and Brady/Giglio, and to comply with the Department’s policies of broad disclosure, the prosecutor should be attuned to the following four steps:

 

  1. First, the prosecutor should obtain the forensic expert’s laboratory report, which is a document that describes the scope of work assigned, the evidence tested, the method of examination or analysis used, and the conclusions drawn from the analyses conducted. Depending on the laboratory, the report may be in written or electronic format; the laboratory may routinely route the report to the prosecutor, or the prosecutor may need to affirmatively seek the report from the forensic expert or his or her laboratory. In most cases the best practice is to turn over the forensic expert’s report to the defense if requested. This is so regardless of whether the government intends to use it at trial or whether the report is perceived to be material to the preparation of the defense. If the report contains personal information about a victim or witness, or other sensitive information, redaction may be appropriate and necessary. This may require court authorization if the forensic expert will testify, as the report likely will be considered a Jencks Act statement. (See the Additional Considerations section below.)

 

  1. Second, the prosecutor should disclose to the defense, if requested, a written summary for any forensic expert the government intends to call as an expert at trial. This statement should summarize the analyses performed by the forensic expert and describe any conclusions reached. Although the written summary will vary in length depending on the number and complexity of the tests conducted, it should be sufficient to explain the basis and reasons for the expert’s expected testimony. Oftentimes, an expert will provide this information in an “executive summary” or “synopsis” section at the beginning of a report or a “conclusion” section at the end. Prosecutors should be mindful to ensure that any separate summary provided pursuant to Rule 16(a) should be consistent with these sections of the report. Further, any changes to an expert’s opinion that are made subsequent to the initial disclosure to the defense ordinarily should be made in writing and disclosed to the defense.

 

  1. Third, if requested by the defense, the prosecutor should provide the defense with a copy of, or access to, the laboratory or forensic expert’s “case file,” either in electronic or hard-copy form. This information, which may be kept in an actual file or may be compiled by the forensic expert, normally will describe the facts or data considered by the forensic expert, include the underlying documentation of the examination or analysis performed, and contain the material necessary for another examiner to understand the expert’s report. The exact material contained in a case file varies depending on the type of forensic analysis performed. It may include such items as a chain-of-custody log; photographs of physical evidence; analysts’ worksheets or bench notes; a scope of work; an examination plan; and data, charts and graphs that illustrate the results of the tests conducted.In some circumstances, the defense may seek laboratory policies and protocols. To the extent that a laboratory provides this information online, the prosecutor may simply share the web address with the defense. Otherwise, determinations regarding disclosure of this information should be made on a case-by-case basis in consultation with the forensic analysts involved, taking into account the particularity of the defense’s request and how relevant the request appears to be to the anticipated defenses.

 

  1. Fourth, the prosecutor should provide to the defense information on the expert’s qualifications. Typically, this material will include such items as the expert’s curriculum vitae, highlighting relevant education, training and publications, and a brief summary that describes the analyst’s synopsis of experience in testifying as an expert at trial or by deposition. The prosecutor should gather potential Giglio information from the government agency that employs the forensic expert. If using an independent retained forensic expert, the prosecutor should disclose the level of compensation as potential Giglio information; the format of this disclosure is left to the discretion of the individual prosecuting office. Disclosure should be made according to local rules but at least as soon as is reasonably practical and, of course, reasonably in advance of trial. It is important that the prosecutor leave sufficient time to obtain documents and prepare information ahead of disclosure. When requesting supporting documents from a laboratory’s file regarding a forensic examination, the prosecutor should consult the guidelines set by the laboratory for the manner in which discovery requests should be made, and for the time required for them to process and deliver the materials to the prosecutor. Further, if multiple forensic teams have worked on a case, the prosecutor should build in sufficient time to consult with, and obtain relevant materials from, each relevant office or forensic expert.

Additional Considerations

 

Certain situations call for special attention. These may include cases with classified information or when forensic reports reveal the identities of cooperating witnesses or undercover officers, or disclose pending covert investigations. In such cases, when redaction or a protective order may be necessary, prosecutors should ordinarily consult with supervisors.

 

Laboratory case files may include written communications, including electronic communication such as emails, between forensic experts or between forensic experts and prosecutors. Prosecutors should review this information themselves to determine which communications, if any, are protected and which in formation should be disclosed under Brady/Giglio, Jencks, or Rule 16. If the circumstances warrant (for example, where review of a case file indicates that tests in another case or communications outside the case file may be relevant), prosecutors should request to review additional materials outside the case file.

 

Finally, when faced with questions about disclosure, prosecutors should consult with a supervisor, as the precise documents to disclose tend to evolve, based especially upon the practice of particular laboratories, the type and manner of documentation at the laboratory, and current rulings from the courts.

 

[added December 2017]

9-5.004 – GUIDANCE ON THE USE, PRESERVATION, AND DISCLOSURE OF ELECTRONIC COMMUNICATIONS IN FEDERAL CRIMINAL CASES

All prosecution team members should be aware of the government’s obligations regarding the preservation and disclosure of electronic communications, or “e-communications,” which include emails, text messages, SMS (short message service), instant messages, voice mail, pin-to-pin communications, and similar means of electronic communication.  Although e‑communications offer benefits in the form of speed and efficiency, all team members should understand that case-related e‑communications may potentially be disclosed to the defense.  Thus, all team members should understand the risks of e‑communications; the need to comply with agency rules regarding documentation and record-keeping during an investigation; the importance of careful and professional communication; and the obligation to preserve and produce such communications when appropriate.  All members of the prosecution team, including federal, state, and local law enforcement officers, are responsible for making available to the prosecutor all potentially discoverable e‑communications.  It is the prosecutor’s responsibility to oversee the gathering, review, and production of discovery.  The prosecutor should discuss these matters with all members of the prosecution team at the outset and during the investigation.

The following guidance applies at all phases of a criminal case including investigation, trial preparation, trial, and post-trial:

  • Prosecution team members should exercise the same care in generating case-related e-communications that they exercise when drafting more formal reports, and only write and send e-communications that are appropriate for displaying to the court, the jury, and the public.

  • Prosecution team members should exercise caution when using e-communications with non-law enforcement witnesses.  Individuals not on the prosecution team, including victims, lay witnesses, and outside experts, should be informed that e-communications are a written record that may be disclosed to the defense and that appropriate care should be exercised.
  • Substantive e-communications among prosecution team members, including communications containing factual information relating to witnesses, evidence, or investigative activity, should be avoided except when, to meet operational needs, they are the most effective means of communication. Substantive case information should be recorded in formal reports.
  • E-communications, like formal reports, should state facts accurately and completely; be professional in tone; and avoid witticism, careless commentary, opinion, or over-familiarity in tone.
  • Prosecution team members should not use personally owned electronic communication devices, personal email accounts, social networking sites, or similar accounts to transmit case-related information to witnesses or other team members.
  • Prosecution team members should preserve for later review and possible disclosure all substantive e-communications created or received by team members during the course of an investigation and prosecution, and all e-communications sent to or received from lay witnesses, regardless of content.
  • E-communications should be preserved in their native electronic format; when that is not feasible, another method of preservation should be identified and used.
  • If the e-communication contains sensitive information, the prosecutor should consider whether to file a motion for a protective order, seek supervisory approval to delay disclosure, make appropriate redactions, summarize the substance of an e‑communication in a letter rather than disclosing the e-communication itself, or take other safeguarding measures.  Sensitive information includes information that would affect the privacy or safety of any person, reveal investigative techniques or national security information, or compromise the integrity of another investigation.  If discoverable information is not provided in its original form and is instead provided in a letter to defense counsel, prosecutors should take great care to ensure that the full scope of pertinent information is provided to the defendant.
  • Prosecutors handling an investigation or case involving national security related issues or intelligence community equities should consult with the National Security/Anti-Terrorism Advisory Council (ATAC) Coordinator in their office and/or the National Security Division for specific guidance on searching for, gathering, reviewing, and disclosing communications in these areas, as well as special procedures (such as the Classified Information Procedures Act, or “CIPA”) that may apply.

For background and additional guidance on these matters, see the March 30, 2011, Deputy Attorney General Cole memorandum, Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases.*

*Note that the discussion of personal use of social media in Deputy Attorney General Cole’s 2011 memorandum has been superseded by JM 1-9.000 (Personal Use of Social Media).

[added December 2019]

9-5.100 – POLICY REGARDING THE DISCLOSURE TO PROSECUTORS OF POTENTIAL IMPEACHMENT INFORMATION CONCERNING LAW ENFORCEMENT AGENCY WITNESSES (“GIGLIO POLICY”)

On December 9, 1996, the Attorney General issued a Policy regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”). It applies to all Department of Justice Investigative agencies that are named in the Preface below. On October 19, 2006, the Attorney General amended this policy to conform to the Department’s new policy regarding disclosure of exculpatory and impeachment information, see JM 9-5.001. On July 11, 2014, the policy was revised in several respects, including with regard to the candid conversation between a prosecutor and an agency employee; the definition of impeachment information; record-keeping; information that must be provided to agencies; the transfer of Giglio-related information between prosecuting offices; and the notification of a prosecuting office of Giglio issues when an agency employee is transferred to a new district.

In early 1997, the Secretary of the Treasury issued the 1996 version of the Giglio Policy for all Treasury investigative agencies, and that policy remains in effect for Treasury investigative agencies.

Policy Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency Witnesses (“Giglio Policy”)

Preface: The following policy is established for: the Federal Bureau of Investigation, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, the United States Marshals Service, the Department of Justice Office of the Inspector General, and the Department of Justice Office of Professional Responsibility (“the investigative agencies”). It addresses their disclosure of potential impeachment information to the United States Attorneys’ Offices and Department of Justice litigating sections with authority to prosecute criminal cases (“Department of Justice prosecuting offices”). The purposes of this policy are to ensure that prosecutors receive sufficient information to meet their obligations under Giglio v. United States, 405 U.S. 150 (1972), and to ensure that trials are fair, while protecting the legitimate privacy rights of Government employees. NOTE: This policy is not intended to create or confer any rights, privileges, or benefits to prospective or actual witnesses or defendants. It is also not intended to have the force of law. United States v. Caceres, 440 U.S. 741 (1979).

The exact parameters of potential impeachment information are not easily determined. Potential impeachment information, however, has been generally defined as impeaching information which is material to the defense. It also includes information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.[FN1] This information may include but is not strictly limited to: (a) specific instances of conduct of a witness for the purpose of attacking the witness’ credibility or character for truthfulness; (b) evidence in the form of opinion or reputation as to a witness’ character for truthfulness; (c) prior inconsistent statements; and (d) information that may be used to suggest that a witness is biased.

FN1. The italicized language was added in 2006 when JM 9-5.001 was issued. It broadens the definition of “potential impeachment information.”

This policy is not intended to replace the obligation of individual agency employees to inform prosecuting attorneys with whom they work of potential impeachment information prior to providing a sworn statement or testimony in any investigation or case. In the majority of investigations and cases in which agency employees may be affiants or witnesses, it is expected that the prosecuting attorney will be able to obtain all potential impeachment information directly from agency witnesses during the normal course of investigations and/or preparation for hearings or trials.

This policy is intended to provide guidance to prosecuting offices and investigative agencies regarding what potential impeachment information must be produced to the prosecuting office. It does not address the issue of what information the prosecution must produce to the defense, or to the court for ex parte, in camera review. That determination can only be made after considering the potential impeachment information in light of the role of the agency witness, the facts of the case, and known or anticipated defenses, and after considering JM 9-5.001, relevant Department guideance, the Federal Rules of Evidence, case law, local court rulings and judicial predisposition, and other relevant guidance, policy, regulations and laws.

Procedures for Disclosing Potential Impeachment Information Relating to Department of Justice Employees

  1. Obligation to Disclose Potential Impeachment Information. It is expected that a prosecutor generally will be able to obtain all potential impeachment information directly from potential agency witnesses and/or affiants. Prosecutors should have a candid conversation with each potential investigative agency witness and/or affiant with whom they work regarding any on-duty or off-duty potential impeachment information, including information that may be known to the public but that should not in fact be the basis for impeachment in a federal criminal court proceeding, so that prosecuting attorneys can take appropriate action, be it producing the material or taking steps to preclude its improper introduction into evidence. Likewise, each investigative agency employee is obligated to inform prosecutors with whom they work of potential impeachment information as early as possible prior to providing a sworn statement or testimony in any criminal investigation or case. Each investigative agency should ensure that its employees fulfill this obligation. Potential impeachment information that may relate directly to agency employee witnesses is defined more fully in paragraphs 5 and 6.Because there are times when an agency employee will be unaware that he or she is the subject of a pending investigation, prosecutors will receive the most comprehensive potential impeachment information by having both the candid conversation with the agency employee and by submitting a request for potential impeachment information to the investigative agency. Therefore, in all cases, a prosecutor should carefully consider and is encouraged to request potential impeachment information from the investigative agency. This policy sets forth procedures for those cases in which a prosecutor decides to make such a request.
  2. Agency Officials. Each of the investigative agencies shall designate an appropriate official(s) to serve as the point(s) of contact concerning Department of Justice employees’ potential impeachment information (“the Agency Official”). Each Agency Official shall consult periodically with the relevant Requesting Officials about Supreme Court case law, circuit case law, and district court rulings and practice governing the definition and disclosure of impeachment information.
  3. Requesting Officials. Each of the Department of Justice prosecuting offices shall designate one or more senior official(s) to serve as the point(s) of contact concerning potential impeachment information (“the Requesting Official”). Each Requesting Official shall inform the relevant Agency Officials about Supreme Court case law, circuit case law, and district court rulings and practice governing the definition and disclosure of impeachment information.
  4. Request to Agency Officials. Upon initiation of a case or matter within the prosecuting office, or anytime thereafter, a prosecutor may request potential impeachment information relating to an agency employee associated with that case or matter. The prosecutor shall notify the appropriate Requesting Official, who may request potential impeachment information relating to the employee from the employing Agency Official(s) and the designated Agency Official(s) in the Department of Justice Office of the Inspector General (“DOJ-OIG”) and the Department of Justice Office of Professional Responsibility (“DOJ-OPR”).
  5. Disclosure of Potential Impeachment Information by Agency Employee and Agency(a) Agency Review and Disclosure. Upon receiving the request described in Paragraph 4, the Agency Official(s) from the employing agency, the DOJ-OIG, and the DOJ-OPR shall each conduct a review, in accordance with its respective agency plan, for potential impeachment information regarding the identified employee.(b) Agency Employee. Before serving as an affiant or witness in any case or matter, the agency employee shall advise the prosecuting attorney(s) of the existence of any potential impeachment information. Potential impeachment information can include both on-duty and off-duty conduct. Prosecutors should be mindful that some potential impeachment information, including potential impeachment information stemming from off-duty conduct, may not be in agency files and may only be known to the agency employee.(c) Potential Impeachment Information. Agency witnesses and Agency Officials should make broad disclosures of potential impeachment information to the prosecutor so that the prosecutor can assess the information in light of the role of the agency witness, the facts of the case, and known or anticipated defenses, among other variables. Potential impeachment information is defined in the Federal Rules of Evidence, case law, unpublished court rulings, and Department of Justice policy and guidance. Unless advised by a Giglio Requesting Official or prosecutor that case law or court rulings in the district require broader disclosures, potential impeachment information relating to agency employees may include, but is not limited to, the categories listed below:

    i) any finding of misconduct that reflects upon the truthfulness or possible bias of the employee, including a finding of lack of candor during a criminal, civil, or administrative inquiry or proceeding;ii) any past or pending criminal charge brought against the employee;

    iii) any allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject of a pending investigation;

    iv) prior findings by a judge that an agency employee has testified untruthfully, made a knowing false statement in writing, engaged in an unlawful search or seizure, illegally obtained a confession, or engaged in other misconduct;

    v) any misconduct finding or pending misconduct allegation that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—that the prosecutor intends to rely on to prove an element of any crime charged, or that might have a significant bearing on the admissibility of prosecution evidence. Accordingly, agencies and employees should disclose findings or allegations that relate to substantive violations concerning:

    (1) failure to follow legal or agency requirements for the collection and handling of evidence, obtaining statements, recording communications, and obtaining consents to search or to record communications;(2) failure to comply with agency procedures for supervising the activities of a cooperating person (C.I., C.S., CHS, etc.);

    (3) failure to follow mandatory protocols with regard to the forensic analysis of evidence;

    vi) information that may be used to suggest that the agency employee is biased for or against a defendant (See United States v. Abel, 469 U.S. 45, 52 (1984). The Supreme Court has stated, “[b]ias is a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness’ self-interest.”); andvii) information that reflects that the agency employee’s ability to perceive and recall truth is impaired.

  6. Treatment of Allegations Which Are Unsubstantiated, Not Credible, or Have Resulted in Exoneration. Allegations that cannot be substantiated, are not credible, or have resulted in the exoneration of an employee generally are not considered to be potential impeachment information. Upon request, such information which reflects upon the truthfulness or bias of the employee, to the extent maintained by the agency, will be provided to the prosecuting office under the following circumstances: (a) when the Requesting Official advises the Agency Official that it is required by a Court decision in the district where the investigation or case is being pursued; (b) when, on or after the effective date of this policy: (i) the allegation was made by a federal prosecutor, magistrate judge, or judge; or (ii) the allegation received publicity; (c) when the Requesting Official and the Agency Official agree that such disclosure is appropriate, based upon exceptional circumstances involving the nature of the case or the role of the agency witness; or (d) when disclosure is otherwise deemed appropriate by the agency. The agency is responsible for advising the prosecuting office, to the extent determined, whether any aforementioned allegation is unsubstantiated, not credible, or resulted in the employee’s exoneration.Note. With regard to allegations disclosed to a prosecuting office under this paragraph, the GiglioRequesting Official shall ensure that special care is taken to protect the confidentiality of such information and the privacy interests and reputations of agency employee-witnesses, in accordance with paragraphs 7(b) and 12 below.
  7. Prosecuting Office Records(a) Information in System of Records. For the purpose of ensuring that potential impeachment information is handled consistently within a prosecuting office, whenever potential impeachment information has been disclosed to the court or defense, or when a decision has been made that an agency employee should not testify or serve as an affiant because of potential impeachment information, Department of Justice prosecuting offices may retain the following types of information in a Giglio system of records that can be accessed by the identity of the disclosing agency’s employee:

    i) the potential impeachment information;ii) any written analysis or substantive communications, including legal advice, relating to that disclosure or decision; and

    iii) any related pleadings or court orders.

    In all other circumstances, prosecuting offices may keep any written legal analysis and substantive communications integral to the analysis, including legal advice relating to the decision, and a summary of the potential impeachment information in the Giglio system of records. The complete description of the potential impeachment information received from the Agency Official may be maintained in the criminal case file, but it may not be maintained in the Giglio system of records.(b) Secure Records with Limited Access. Giglio Requesting Official(s) shall ensure that the information in their office’s Giglio system of records is securely maintained and is accessible only upon a request to a Giglio Requesting Official or other senior management entrusted with this responsibility. The information shall only be disclosed to requesting prosecutors within that office on a case-related, need-to-know basis. It should be noted that much of the information in the Gigliosystem of records is sensitive information which if released or reviewed without a case-related need could negatively impact the privacy and reputation of the agency-employee to whom it relates, and could violate the Privacy Act.

    (c) Duty to Update. Before any prosecutor or Giglio Requesting Official uses or relies upon information included in the prosecuting office’s Giglio system of records, the Requesting Official shall contact the relevant Agency Official(s) to determine the status of the potential impeachment information, the Agency Official(s) shall provide an update, and the Requesting Official shall update the prosecuting office’s Giglio system of records to ensure that the information in the system of records is accurate.

  8. Information That Must Be Provided to Agencies. When Agency Officials have provided potential impeachment information to a Requesting Official, the Requesting Official shall inform the employing Agency Official how the prosecuting office used the information. A circumstance may arise in which a prosecutor or Requesting Official learns of potential impeachment information relating to an agency employee from a source other than the agency—including but not limited to the agency employee. In such circumstance, the Requesting Official shall notify the Agency Official of such information and provide the Agency with a timely opportunity to meaningfully express its views regarding the information, as required by Paragraph12. Regardless of the source of the information, the Requesting Official will:

    (a) advise the employing Agency Official whether the employee provided an affidavit or testimony in a criminal proceeding or whether a decision was made not to use the employee as a witness or affiant because of potential impeachment issues;(b) advise the employing Agency Official whether the information was disclosed to a Court or to the defense and, if so, whether the Court ruled that the information was admissible for use as impeachment information; and

    (c) provide the employing Agency Official a copy of any related pleadings, and any judicial rulings, findings or comments relating to the use of the potential impeachment information.

    The agency shall maintain judicial rulings and related pleadings on information that was disclosed to the Court or the defense in a manner that allows expeditious access upon the request of any Requesting Official.

  9. Continuing Duty to Disclose. Each agency plan shall include provisions which will assure that, once a request for potential impeachment information has been made, the prosecuting office will be made aware of any additional potential impeachment information that arises after such request and during the pendency of the specific criminal case or investigation in which the employee is a potential witness or affiant. A prosecuting office which has made a request for potential impeachment information shall promptly notify the relevant agency when the specific criminal case or investigation for which the request was made ends in a judgment or declination, at which time the agency’s duty to disclose shall cease.
  10. Providing Records and Information to Another Federal Prosecuting Office and Disposition of Records(a) Distribution of Information to Another Federal Prosecuting Office with Notice to Agency Official(s). If an agency employee has been transferred to another judicial district, or will testify or serve as an affiant in another judicial district, the prosecuting office in the originating district may provide any relevant information from its Giglio system of records relating to that agency employee to a Giglio Requesting Official in the new district. Moreover, nothing shall prohibit the Requesting Official in the new district from consulting with the Requesting Official in the former district about the manner in which the former district handled certain potential impeachment information.The Giglio Requesting Official(s) providing the information shall notify the Agency Official(s) when distributing materials from its Giglio system of records to another prosecuting office, unless the information relates to pending investigations or other incomplete matters, the status of which may have changed or been resolved favorably to the agency employee. With regard to pending investigations or other incomplete matters, to avoid the unnecessary disclosure of potentially derogatory information regarding an agency employee, the Giglio Requesting Official transferring the information shall notify the relevant Agency Official(s) before providing any information to another prosecuting office, except as noted in paragraph 13. The Agency Official(s) shall provide a prompt update. Whether notice is provided before or contemporaneously with the transfer, the GiglioRequesting Official shall also advise the Agency Official(s) what materials will be or have been distributed.(b) Duty to Update. The Requesting Official in the new prosecuting office shall seek an update from Agency Official(s) as part of the Giglio analysis, and shall allow the agency the timely opportunity to fully express their views as required by Paragraph 12 and to provide an update. The Requesting Official in the new district is not bound by the former district’s decisions regarding disclosure of information to the Court or defense, or use of the agency employee as a witness or affiant, and should review the former district’s information along with other relevant information, when making an independent decision regarding disclosure to the Court or defense, use of the agency employee as a witness or affiant, and other related issues.(c) Removal of Records Upon Transfer, Reassignment, or Retirement of Employee. Upon being notified that an agency employee has retired, been transferred to an office in another judicial district, or been reassigned to a position in which the employee will neither be an affiant nor witness, and subsequent to the resolution of any litigation pending in the prosecuting office in which the agency employee was involved, the Requesting Official shall remove from the prosecuting office’s system of records any record that can be accessed by the identity of the employee. More specifically, the records must be removed at the conclusion of the direct and collateral appeals, if any, or within one year of the agency employee’s retirement, transfer, or reassignment, whichever is later.
  11. Notification. When an agency employee is transferred to a new district, the Agency shall ensure that a Requesting Official in the new district is advised of any potential impeachment material known to the Agency when the employee begins meaningful work on a case or matter within the prosecuting district or is reasonably anticipated to begin meaningful work on such a case or matter.
  12. Prosecuting Office Plans to Implement Policy. Each prosecuting office shall develop a plan to implement this policy. The plan shall include provisions that require: (a) communication by the prosecuting office with the Agency Official about the disclosure of potential impeachment information to the Court or defense counsel, including indicating what materials are being distributed, and allowing for the Agency to promptly update the information and express its views on whether certain information should be disclosed to the Court or defense counsel; (b) preserving the security and confidentiality of potential impeachment information through proper storage and restricted access within a prosecuting office; (c) when appropriate, seeking an ex parte, in camera review and decision by the Court regarding whether potential impeachment information must be disclosed to defense counsel; (d) when appropriate, seeking protective orders to limit the use and further dissemination of potential impeachment information by defense counsel; (e) allowing the relevant agencies the timely opportunity to fully express their views; and (f) information contained within the Giglio system of records may not be disclosed to persons outside of the Department of Justice except in a criminal case to which the United States is a party, and where otherwise authorized by law, regulation, or court order.
  13. Exception to Requirements Regarding Providing Notice to Agencies and Soliciting Agency Views. In rare circumstances, a Giglio issue may arise immediately before or during a court proceeding, and a prosecuting office may determine that it does not have time to solicit the agency’s views or provide notice before it must take action on the matter. In such a case, the prosecuting office shall provide notice or solicit agency views as promptly as the circumstances reasonably permit. Many situations of this type can be avoided by ensuring that prosecutors and agency employee witnesses have candid conversations and that prosecutors submit formal Giglio requests sufficiently in advance of any proceedings.
  14. Investigative Agency Plans to Implement Policy. Each investigative agency shall develop a plan to effectuate this policy.[updated January 2020]

9-5.110 – TESTIMONY OF FBI LABORATORY EXAMINERS

In situations where FBI laboratory examinations have resulted in findings having no apparent probative value, yet defense counsel intends to subpoena the examiner to testify, the United States Attorney (USA) should inform defense counsel of the FBI’s policy requiring payment of the examiner’s travel expenses by defense counsel. The USA should also attempt to secure a stipulation concerning this testimony. This will avoid needless expenditures of time and money attendant to the appearance of the examiner in court.

[updated December 2006]

9-5.150 – AUTHORIZATION TO CLOSE JUDICIAL PROCEEDINGS TO MEMBERS OF THE PRESS AND PUBLIC

Procedures and standards regarding the closure of judicial proceedings to members of the press and public are set forth in 28 C.F.R. § 50.9. Government attorneys may not move for or consent to the closure of any criminal proceeding without the express prior authorization of the Deputy Attorney General.

There is a strong presumption against closing proceedings, and the Department foresees very few cases in which closure would be warranted. Only when a closed proceeding is plainly essential to the interests of justice should a Government attorney seek authorization from the Deputy Attorney General to move for or consent to closure of a judicial proceeding. Government attorneys should be mindful of the right of the public to attend judicial proceedings and the of the Department’s obligation to the fair administration of justice.

Any request for authorization to move for or consent to closure, in addition to setting forth the relevant and procedural background, should include a detailed explanation of the need for closure, addressing each of the factors set forth in 28 C.F.R. § 50.9(c)(1)-(6). In particular, the request should address in detail how an open proceeding will create a substantial likelihood of danger to specified individuals; how ongoing investigations will be jeopardized; or how a person’s right to a fair trial will be impaired. The request must also consider reasonable alternatives to closure, such as delaying the proceeding, if possible, until the reasons justifying closure cease to exist. An applicable form is available to Department attorneys.

Whenever authorization to close a judicial proceeding is being sought pursuant to 28 C.F.R. § 50.9 in a case or matter under the supervision of the Criminal Division, the request should be directed to the Policy and Statutory Enforcement Unit, Office of Enforcement Operations. In cases or matters under the supervision of other divisions of the Department of Justice, the appropriate division should be contacted.

Because of the vital public interest in open judicial proceedings, every 60 days after termination of any proceeding closed pursuant to 28 C.F.R. § 50.9, Government attorneys must review the records of the proceedings to determine whether the reasons for closure still apply. As soon as the justification for closure ceases to exist, the Government must file an appropriate motion to have the records unsealed. See 28 C.F.R. § 50.9(f). While the Criminal Division monitors compliance with this requirement, it is the affirmative obligation of the U.S. Attorney’s Offices to ensure that sealed records are reviewed in accordance with the regulation’s requirements. U.S. Attorney’s Offices should acknowledge this obligation in any request for authorization to move for or consent to closure. source

[updated January 2020]

The Prosecutor’s Disclosure Obligation

Prosecutors and police have a duty to seek out and voluntarily disclose every bit of evidence that helps a person accused of a crime defend themselves from prosecution. This kind of “exculpatory” evidence can come in the form of improper evidence handling, insufficient officer training, negative officer performance reviews, and even dishonesty or wrongdoing by a police officer.

Unfortunately, not all police officers or prosecutors understand the full extent of this obligation. In fact, some police officers in Washington have even actively attempted to keep information about their past misconduct secret from those they have accused of a crime.

The duty to disclose derives from (1) the Constitutional Due Process requirement for disclosure set out in Brady v. Maryland, (2) the Criminal Rules on discovery, and (3) the Rules of Professional Conduct.

Here we provide an overview designed to give a basic understanding of the duties and obligations of the government as they relate to disclosure obligations. We end with a brief discussion of the new model policy on Potential Impeachment Disclosure (PID), and new areas of future disclosure obligations.

CONSTITUTIONAL DUE PROCESS

There are over 30,000 cases in the United States that discuss the government’s obligation to provide exculpatory information to the defense. Every prosecutor and defense attorney should be familiar with the following cases.

  • Brady v. Maryland, 373 U.S. 83 (1963) (Prosecution violates a defendant’s due process rights by failing to turn over potentially exculpatory evidence).
  • United States v. Bagley, 473 U.S. 667 (1985) (Brady rule applies to impeachment evidence).
  • Silva v. Brown, 416 F.3d 980 (9th Cir. 2005) (Impeachment evidence is especially likely to be “material” under Brady; thus, the government must reveal promises of leniency or immunity for its witnesses).
  • Kyles v. Whitley, 514 U.S. 419 (1995) (The prosecutor bears the primary responsibility of identifying and turning over Brady evidence. The prosecutor’s obligation to turn over all exculpatory evidence extends to evidence that is in the possession of the police, including information that the police have not disclosed to the prosecutor. “This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence”).
  • United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) (“The prudent prosecutor will resolve doubtful questions in favor of disclosure.”).
  • In re Personal Restraint Petition of Gentry, 137 Wn.2d 378, 397 n. 9 (1999) (Even after conviction, the prosecutor is required by the ethics of the office “to inform the appropriate authority of . . . information that casts doubt upon the correctness of the conviction.”).
  • State v. Copeland, 89 Wn. App. 492, 497-98, 949 P.2d 458 (1998) (A prosecutor must disclose prior criminal convictions of witnesses intended to be called for trial if that information is in the knowledge, control or possession of any member of the prosecution office, even where the deputy prosecutor on the case is not actually aware of the prior conviction of the witness).
  • State v. Garcia, 45 Wn. App. 132, 724 P.2d 412 (1986) (A prosecutor must disclose the substance of an eyewitness’ oral recantation and any prosecutor notes for an in camera review of the conversation even though the prosecutor did not believe the recantation). This rule also applies to non-lawyer support staff at a prosecutor’s office, such as victim/witness advocates and secretaries.
  • State v. Blackwell, 120 Wn.2d 822, 828 (1993) (If the defense can first show materiality, the burden shifts to the prosecution to attempt to obtain evidence held in an officer’s file). If the prosecution will not comply with a request for any information in a police officer’s file, a motion can be brought under Blackwell. However, filling public records request is often a quicker solution.

CRIMINAL DISCOVERY RULES

Discovery in Criminal cases is controlled by CrR 4.7 in Superior Court, and CrRLJ 4.7 in District Court. Although these rules differ somewhat, there is not meaningful difference as it relates to Brady obligations.

  • CrR 4.7(a)(1): Except as otherwise provided by protective orders or as to matters not subject to disclosure, the prosecuting attorney shall disclose to the defendant the following material and information within the prosecuting attorney’s possession or control no later than the omnibus hearing.
  • CrR 4.7(a)(1)(vi): Any record of prior criminal convictions known to the prosecuting attorney of the defendant and of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.
  • CrR 4.7(3): Except as is otherwise provided as to protective orders, the prosecuting attorney shall disclose to defendant’s counsel any material or information within the prosecuting attorney’s knowledge which tends to negate defendant’s guilt as to the offense charged.
  • CrR 4.7(4): The prosecuting attorney’s obligation under this section is limited to material and information within the knowledge, possession, or control of members of the prosecuting attorney’s staff.
  • CrR 4.7(d): Upon defendant’s request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting attorney, the prosecuting attorney shall attempt to cause such material or information to be made available to the defendant. If the prosecuting attorney’s efforts are unsuccessful and if such material or persons are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to the defendant.

RULES OF PROFESSIONAL CONDUCT

The Rules of Professional Conduct contain two rules exclusively for prosecutors that relate to the prosecutor’s obligations under Brady.

RPC 3.8(d) compels prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense and, in connection with sentencing, disclose to the defense and to the tribunal all mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.

A prosecutor’s obligations under RPC 3.8(d) are very similar to the disclosure obligations imposed by Constitutional Due Process. As such, failure to comply with the Brady obligations can result in negative licensing ramifications for a criminal prosecutor. The more knowing and willful a violation of this rule, the more negative the ramifications have been.

RPC 3.8(g) is a newer rule, coming into effect in December 2011. Under RPC 3.8(g), when a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted, defendant is innocent of the offense of which the defendant was convicted the prosecutor shall promptly disclose that evidence to an appropriate court or authority, and if the conviction was obtained in the prosecutor’s jurisdiction, promptly disclose that evidence to the defendant unless a court authorizes delay, and make reasonable efforts to inquire into the matter, or make reasonable efforts to cause the appropriate law enforcement agency to undertake an investigation into the matter.

CASE STUDIES

Two recent Washington cases show how prosecutors have dealt with their Brady obligations, and how some police officers have greatly resisted prosecutorial efforts to disclose findings of their misconduct.

Lackey V. Lewis County:

The Lewis County Sheriff’s Office conducted an internal investigation on Deputy Lackey. The investigation made findings that Lackey had committed job related acts of dishonesty and other violations.

The Sheriff sent Lackey a letter sustaining the findings and indicating that Lackey was to be separated from employment for the other violations. The letter also stated that the investigative report was being forwarded to the Lewis County Prosecutor for an analysis under Brady and that a determination of lack of veracity would constitute an additional and independent basis for termination.

The Prosecutor responded by letter, writing “the disciplinary file you provided contains findings that Deputy Lackey committed job-related acts of dishonesty or untruthfulness … I am obligated to provide this information to defendants and defense attorneys in every case in which Deputy Lackey is likely to testify as a witness for the State.”

Lackey was separated from employment but appealed through Civil Service. A settlement was reached between Lackey and the Sheriff’s Office. The parties to the agreement were the Lewis County Sheriff’s Office, the Deputies Guild, and Lackey. The Prosecutor was not a party to the agreement.

The Sheriff’s Office “agreed to remove any reference to findings of dishonesty in the plaintiff’s termination letter; however, the findings were to remain in the plaintiff’s permanent investigation file.” The agreement also stated that the letter from the Prosecutor would be sealed by the Sheriff.

The settlement agreement further stated that the Brady memo from Mr. Golden to Mr. Walton would remain sealed by the Sheriff unless directed to be disclosed by a court order, public records request, or other applicable and controlling laws.

  • NOTE: Police union contracts and settlement agreements cannot prevent the disclosure of Brady material as a defendant’s constitutional right is paramount. An officer’s privacy interest cannot prevent disclosure of disciplinary records as such records are considered to be of legitimate concern to the public. See, e.g. Dawson v. Daly, 120 Wn.2d 782, 795-96, 845 P.2d 995 (1993); Cowles Pub’g Co. v. State Patrol, 44 Wn. App. 882, 724 P.2d 379 (1986), rev’d on other grounds, 109 Wn.2d 712, 748 P.2d 597 (1988).

Lackey then obtained provisional employment in Mason County, pending a background investigation. The Lewis County Prosecutor became aware of this and sent Lackey a letter stating he would be sending his analysis letter to the Mason County Prosecutor, but gave Lackey 10 days to object. The letter was subsequently sent.

Lackey was separated from his new job. He then filed claims against Lewis County and the Lewis County Prosecutor for sharing Brady information, Due Process violation and deprivation of property interest, defamation, invasion of privacy, and an injunction.

All federal claims were dismissed by the federal court.

“The court can find no law prohibiting a prosecutor from sharing potentially exculpatory or impeaching evidence with prosecutors of another jurisdiction. Such a law would be antithetical to a prosecutor’s duty of disclosure mandated by Brady v. Maryland. A reasonable prosecutor in Mr. Golden’s position could feel obliged to offer such information to a fellow prosecutor to remain in compliance with Brady and its progeny; and a reasonable prosecutor in Mr. Golden’s position would not have known that his conduct in releasing the Brady letter would violate any clearly established constitutional right.”

The court also wrote “The plaintiff has failed to identify any law that recognizes a police officer’s right to a name-clearing hearing after a Brady determination has been made, or any law prohibiting a prosecutor from transmitting a Brady determination to another jurisdiction.”

Doyle V. Lee, 166 Wn. App. 397 (2012):

Doyle left his employment with the Sierra County Sheriff’s Office after a settlement agreement dismissing a disciplinary action in exchange for his resignation. The agreement precluded Doyle from applying for or accepting employment with Sierra County for five years. Before this agreement was reached, Doyle had first been subject to termination, and later was placed on unpaid, one-year probation.

Later in 2007, Doyle became employed by the Quincy Police Department (who presumably did not know about the Sierra County issue when they hired him).

In 2009, Doyle called the police Moses Lake Police Department (MLPD) reporting documents related to his Sierra County employment had been stolen. MLPD recovered and reviewed the documents. Believing the documents showed that an investigation resulted in a finding that Doyle was dishonest, MLPD passed this information to then Grant County Prosecutor Angus Lee. Lee preliminarily determined the dishonesty finding and the supporting information were potential impeachment materials that his office was required to disclose to criminal defendants in compliance with Brady.

Mr. Lee notified Doyle of his determination and invited him to provide any information he wished to assist in making the final determination.

Doyle responded by suing for declaratory relief, and seeking an Ex Parte order to prohibit Mr. Lee from using, or disseminating any of the documents.

The trial court entered a preliminary injunction, but allowed the prosecution to comply with Brady mandate by submitting the materials to the criminal trial courts for in camera review on cases where Doyle was a potential witness. Each criminal trial judge that ruled on the in camera review ordered disclosure of the materials under Brady and Bagley.

Mr. Lee moved for summary judgment to dissolve the preliminary injunction and to dismiss the case. Finding that the Sierra County outcome was adverse to Doyle and that such information would be of public concern, the trial court ordered the immediate termination of the preliminary injunction and granted Mr. Lee’s motion for summary dismissal.

In affirming the trial court’s summary judgment, the appellate court wrote “a sustained finding of dishonesty existed resulting in adverse consequences to Officer Doyle. Under Brady, a prosecutor is required to disclose exculpatory evidence, including an officer’s dishonesty…. Mr. Lee complied with the Brady mandates by giving the documents to numerous affected defense attorneys.”

The court also awarded Mr. Lee tens of thousands in attorneys fees for having to defend against the action.

MODEL POTENTIAL IMPEACHMENT DISCLOSURE POLICY

In 2013, after the Lackey and Doyle cases, prosecutors in Washington State, through the Washington Association of Prosecuting Attorney’s, published a model policy for the handling of Brady/Doyle material for officers. Although some prosecutor’s offices still use the term “Brady Cop”, many have adopted the model policy and the term “Potential Impeachment Disclosure” (PID) when referring to disclosure obligations involving a police officer.

The model policy was designed to achieve compliance with the above requirements, and create state-wide uniformity in the way potential impeachment of recurring government witness issues are handled. According to the model policy, “All County deputy prosecuting attorneys are required to know and follow this protocol and all relevant law concerning potential impeachment of recurring government witness disclosure obligations.”

Under the model policy, the PID standard is likely to be satisfied by reliable information that an officer was dishonest in connection with the performance of official duties. It is less likely to be satisfied by dishonesty in connection with an officer’s private affairs. Under unusual circumstances, information about private acts might be subject to the PID policy if the acts could be admissible under Evidence Rule 608(b) as evidence of untruthfulness.

Clark County PID:

Below you can download the “Brady Policy” and list maintained by the Clark County Prosecutor’s Office and the Vancouver City Attorney’s Office.

PID GUIDELINES

  • The PID Standard depends on what a reasonable person could believe, not on what the prosecutor’s office or a law enforcement agency does believe.
  • Consequently, disclosure may be required in cases where the prosecutor’s office and/or the law enforcement agency believe that no misconduct occurred, if a reasonable person could draw a different conclusion.
  • If the prosecutor’s office concludes that an officer is subject to PID, that conclusion does not necessarily reflect a conclusion that the officer committed misconduct, or that the officer is not credible as a witness.
  • PID is about meeting the government’s obligation to disclose. It is NOT about making a determination on admissibility, or on an officer’s credibility, or employability.
  • A determination that disclosure is required is not a stipulation by the prosecution as to admissibility. In fact, it is not uncommon for the prosecution to make a disclosure of material to the defense, but then later argue for suppression or exclusion of that material at trial.
  • When the determination is questionable, the prosecution should submit the material to the court in camera for a determination on the disclosure obligation . If the defense believes there is material that is not being disclosed pursuant to Brady and its progeny, the defense should move the court for an in camera review of the material it believes exists and is not being disclosed.
  • If material is submitted for in camera review, it may or may not be disclosed by the court. As a result, the defense either obtains the requested material, or builds a record for any future appeal regarding what was not disclosed.

THE FUTURE OF BRADY

A review of the case law regarding Brady material reveals that the law is expanding and will continue to expand the scope of discovery beyond simple acts of dishonesty by an officer. Brady disclosure obligations at their heart deal with ANY information that may tend to negate or call into question the testimony of a witness, thereby making the information material for impeachment purposes.

Mental and Physical Health: depression and other mental health disorders are increasingly common across America. Police officers and jail guards are no exception. In fact, it has been reported that jail guards suffer from PTSD at higher rates than combat veterans. The drugs some take to treat these issues may be very relevant to a particular officer’s ability to observe and recall a particular incident. Likewise, if an officer has been diagnosed and in need of medication, the absence of appropriate medication may also be relevant.

Evidence of prejudice towards a protected class: Prejudice and bias against a group of people can be very relevant to impeachment of an officer’s testimony. This kind of information can often be found in comments that officers make publicly on social media.

Performance Reports: Most government witnesses (especially at the State Crime Laboratory) are subject to regular performance testing and evaluations. Adverse or substandard performance reviews or evaluations are potentially very relevant to impeaching the testimony of a government witness.

Substance Abuse: If an officer was on drugs or alcohol, or dealing with a bad hangover, at the time of arrest, this information is very relevant to the officer’s ability to observe and recall an incident many months later at trial. As such, use/abuse of drugs or can be relevant information. source

7 Types of Exculpatory Evidence that Can Trigger a Brady Violation

The Brady rule applies to all types of evidence a defendant may be able to use to protect himself or herself from a conviction. Some examples include:

1. Evidence of Police Misconduct

If the police racially profiled you, violated your constitutional rights, or engaged in any other form of misconduct before, during, or after your arrest, this could have a substantial impact on your criminal case. As a result, you are entitled to know if prosecutors have any evidence of police misconduct in their possession.

2. Evidence that Someone Else Committed the Crime

Evidence that someone else committed the crime in question has strong exculpatory value, and it is almost certainly material to the prosecution’s case against you. This could include a confession, witness statements, surveillance footage, or any of a variety of other forms of evidence.

3. Records that Suggest You Didn’t Commit the Crime

If the police report or any other records suggest that you didn’t commit the crime (or may not have committed the crime), this is also something you are entitled to know. Prosecutors should disclose these records; and, if they don’t, this could entitle you to legal remedies as discussed in detail below.

4. Physical Evidence that Casts Doubt on Your Guilt

Along with documentary evidence, any physical evidence that casts doubt on your guilt is also highly likely to be material and exculpatory. This could include anything from the weapon used to commit the crime in question to a piece of property that you allegedly stole.

5. Information about a Deal with an Informant or Witness

If any of the government’s witnesses received a deal in connection with their decision to testify, this is key information that could have a major impact on the judge’s or jury’s decision. This means that defendants are generally entitled to disclosure of this information as well.

6. Information that Discredits a State’s Witness

Along with information about a deal, any other information that discredits a state’s witness could also trigger the prosecution’s obligation to voluntarily disclose. For example, if a witness changes his or her story on the witness stand after giving prosecutors a pre-trial statement, failure to disclose the prior statement may constitute a Brady violation.

7. Information that Casts Doubt on an Alleged Victim’s Testimony

Information that casts doubt on an alleged victim’s testimony can also trigger the Brady rule. This includes (but is not limited to) prior inconsistent statements, evidence that the victim is lying, and evidence that the victim has made similar false allegations in the past.

But, it is important to keep in mind that judges examine possible Brady violations on a case-by-case basis. To establish a Brady violation, you must be able to show that the evidence is material and exculpatory based on the circumstances of your case. Other types of evidence may constitute “Brady material” as well, and the types of evidence listed above may or may not qualify depending on the facts at hand.

Potential Consequences of the Prosecution’s Failure to Disclose Exculpatory Evidence

Let’s say prosecutors withhold exculpatory evidence before or during your trial. What does this mean for the outcome of your case? The potential consequences of the prosecution’s failure to disclose exculpatory evidence include:

  • Production of the Exculpatory Evidence – If it is still possible to “correct” a Brady violation, then the judge may simply order the prosecution to disclose the evidence to the defense.
  • Mistrial – If a Brady violation cannot be corrected, the judge may order a mistrial.
  • Dismissal – If a Brady violation is particularly egregious, the judge may order the case dismissed rather than declaring a mistrial.
  • Reversal – If a Brady violation only comes to light after a defendant’s conviction, then the defendant may be entitled to a reversal—either with or without the possibility of a retrial.
  • No Consequences – If the judge determines that the withheld evidence is not material and exculpatory, then the prosecution’s failure to disclose it may not have any consequences. source

National District Attorneys Association puts out its standards
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The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

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At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

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The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

 

 

 

 

 

 

 

 

 

 

 

 

]]> What is Probable Cause? and.. How is Probable Cause Established? https://goodshepherdmedia.net/what-is-probable-cause-and-how-is-probable-cause-established/ Tue, 26 Dec 2023 19:11:48 +0000 https://goodshepherdmedia.net/?p=16569 What is Probable Cause? and.. How is Probable Cause Established?

Probable Cause

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Probable Cause.—The concept of “probable cause” is central to the meaning of the warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define “probable cause”; the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. “In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.”116 Probable cause is to be determined according to “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”117 Warrants are favored in the law and their use will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.118 For the same reason, reviewing courts will accept evidence of a less “judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.”119 Courts will sustain the determination of probable cause so long as “there was substantial basis for [the magistrate] to conclude that” there was probable cause.120

Much litigation has concerned the sufficiency of the complaint to establish probable cause. Mere conclusory assertions are not enough.121 In United States v. Ventresca,122 however, an affidavit by a law enforcement officer asserting his belief that an illegal distillery was being operated in a certain place, explaining that the belief was based upon his own observations and upon those of fellow investigators, and detailing a substantial amount of these personal observations clearly supporting the stated belief, was held to be sufficient to constitute probable cause. “Recital of some of the underlying circumstances in the affidavit is essential,” the Court said, observing that “where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause,” the reliance on the warrant process should not be deterred by insistence on too stringent a showing.123

Requirements for establishing probable cause through reliance on information received from an informant has divided the Court in several cases. Although involving a warrantless arrest, Draper v. United States124 may be said to have begun the line of cases. A previously reliable, named informant reported to an officer that the defendant would arrive with narcotics on a particular train, and described the clothes he would be wearing and the bag he would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant fully fit the description, and arrested him. The Court held that the corroboration of part of the informer’s tip established probable cause to support the arrest. A case involving a search warrant, Jones v. United States,125 apparently considered the affidavit as a whole to see whether the tip plus the corroborating information provided a substantial basis for finding probable cause, but the affidavit also set forth the reliability of the informer and sufficient detail to indicate that the tip was based on the informant’s personal observation. Aguilar v. Texas126 held insufficient an affidavit that merely asserted that the police had “reliable information from a credible person” that narcotics were in a certain place, and held that when the affiant relies on an informant’s tip he must present two types of evidence to the magistrate. First, the affidavit must indicate the informant’s basis of knowledge—the circumstances from which the informant concluded that evidence was present or that crimes had been committed—and, second, the affiant must present information that would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,127 the Court applied Aguilar in a situation in which the affidavit contained both an informant’s tip and police information of a corroborating nature.

The Court rejected the “totality” test derived from Jones and held that the informant’s tip and the corroborating evidence must be separately considered. The tip was rejected because the affidavit contained neither any information which showed the basis of the tip nor any information which showed the informant’s credibility. The corroborating evidence was rejected as insufficient because it did not establish any element of criminality but merely related to details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United States v. Harris128 approved a warrant issued largely on an informer’s tip that over a two-year period he had purchased illegal whiskey from the defendant at the defendant’s residence, most recently within two weeks of the tip. The affidavit contained rather detailed information about the concealment of the whiskey, and asserted that the informer was a “prudent person,” that defendant had a reputation as a bootlegger, that other persons had supplied similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting evidence, including defendant’s reputation, could supplement this determination.

subject and returned to the “totality of the circumstances” approach to evaluate probable cause based on an informant’s tip in Illinois v. Gates.129 The main defect of the two-part test, Justice Rehnquist concluded for the Court, was in treating an informant’s reliability and his basis for knowledge as independent requirements. Instead, “a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.”130 In evaluating probable cause, “[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”131

116 Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). “[T]he term ‘probable cause’ . . . means less than evidence which would justify condemnation.” Lock v. United States, 11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States, 267 U.S. 498, 504–05 (1925). It may rest upon evidence that is not legally competent in a criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need not be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 U.S. 160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107–08 (1965). An “anticipatory” warrant does not violate the Fourth Amendment as long as there is probable cause to believe that the condition precedent to execution of the search warrant will occur and that, once it has occurred, “there is a fair probability that contraband or evidence of a crime will be found in a specified place.” United States v. Grubbs, 547 U.S. 90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). “An anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place.’” 547 U.S. at 94.

117 Brinegar v. United States, 338 U.S. 160, 175 (1949).

118 United States v. Ventresca, 380 U.S. 102, 108–09 (1965).

119 Jones v. United States, 362 U.S. 257, 270–71 (1960). Similarly, the preference for proceeding by warrant leads to a stricter rule for appellate review of trial court decisions on warrantless stops and searches than is employed to review probable cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause to search without a warrant should be subjected to de novo appellate review).

120 Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the issuing party “must judge for himself the persuasiveness of the facts relied on by a [complainant] to show probable cause.” Giordenello v. United States, 357 U.S. 480, 486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning information possessed by the affiant but not disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971).

121 Byars v. United States, 273 U.S. 28 (1927) (affiant stated he “has good reason to believe and does believe” that defendant has contraband materials in his possession); Giordenello v. United States, 357 U.S. 480 (1958) (complainant merely stated his conclusion that defendant had committed a crime). See also Nathanson v. United States, 290 U.S. 41 (1933).

122 380 U.S. 102 (1965).

123 380 U.S. at 109.

124 358 U.S. 307 (1959). For another case applying essentially the same probable cause standard to warrantless arrests as govern arrests by warrant, see McCray v. Illinois, 386 U.S. 300 (1967) (informant’s statement to arresting officers met Aguilar probable cause standard). See also Whitely v. Warden, 401 U.S. 560, 566 (1971) (standards must be “at least as stringent” for warrantless arrest as for obtaining warrant).

125 362 U.S. 257 (1960).

126 378 U.S. 108 (1964).

127 393 U.S. 410 (1969). Both concurring and dissenting Justices recognized tension between Draper and Aguilar.See id. at 423 (Justice White concurring), id. at 429 (Justice Black dissenting and advocating the overruling of Aguilar).

128 403 U.S. 573 (1971). See also Adams v. Williams, 407 U.S. 143, 147 (1972) (approving warrantless stop of motorist based on informant’s tip that “may have been insufficient” under Aguilar and Spinelli as basis for warrant).

129 462 U.S. 213 (1983). Justice Rehnquist’s opinion of the Court was joined by Chief Justice Burger and by Justices Blackmun, Powell, and O’Connor. Justices Brennan, Marshall, and Stevens dissented.

130 462 U.S. at 213.

131 462 U.S. at 238. For an application of the Gates “totality of the circumstances” test to the warrantless search of a vehicle by a police officer, see, e.g. Florida v. Harris, 568 U.S. ___, No. 11–817, slip op. (2013). source

 

Probable Cause: Definition, Legal Requirements

What Is Probable Cause?

Probable cause is a requirement in criminal law that must be met before a police officer can make an arrest, conduct a search, seize property, or get a warrant.

KEY TAKEAWAYS

  • Probable cause is a requirement in criminal law that must be met before a police officer can make an arrest, conduct a search, seize property, or get a warrant.
  • The probable cause requirement stems from the Fourth Amendment of the U.S. Constitution, which states that citizens have the right to be free from unreasonable government intrusion into their persons, homes, and businesses.
  • Illinois v. Gates is a landmark case in the evolution of probable cause and search warrants.1

Understanding Probable Cause

Probable cause requires that the police have more than just suspicion—but not to the extent of absolute certainty—that a suspect committed a crime. The police must have a reasonable basis in the context of the totality of the circumstances for believing that a crime was committed. The probable cause requirement stems from the Fourth Amendment of the U.S. Constitution, which provides for the right of citizens to be free from unreasonable government intrusion into their persons, homes, and businesses.

Probable cause is important in two aspects of criminal law:

  1. Police must have probable cause before they search a person or property, and before they arrest a person.
  2. The court must find that there is probable cause to believe the defendant committed the crime before they are prosecuted.

When a search warrant is in effect, police must generally search only for the items described in the warrant, although they can seize any contraband or evidence of other crimes that they find. However, if the search is deemed to be illegal, any evidence found becomes subject to the “exclusionary rule” and cannot be used against the defendant in court.

What is malicious prosecution California?

CACI No. 1501. Wrongful Use of Civil Proceedings

“The tort of malicious prosecution lies to compensate an individual who is maliciously hailed into court and forced to defend against a fabricated cause of action.” Pace v Hillcrest Motor Co. (1980) 101 CA3d 476, 478. To establish the cause of action, a plaintiff must plead and prove that (CACI 1500, 1501):

Malicious prosecution is when someone sues or files criminal charges against someone else without probable cause and with harmful intent. It can be a civil or criminal lawsuit.

Some examples of malicious prosecution include: 
  • Providing false evidence to the police that someone committed a crime
  • Suing someone for hurting them even if they never caused harm
  • A police officer or government official filing criminal charges against someone because of personal animosity, bias, or another reason outside the interests of justice

“The tort of malicious prosecution lies to compensate an individual who is maliciously hailed into court and forced to defend against a fabricated cause of action.” Pace v Hillcrest Motor Co. (1980) 101 CA3d 476, 478.

CA Penal Code § 170 (2022) – Misuse of the Warrant System – Crimes Against Public Justice

CA Penal Code § 170 (2022) click here

Penal Code § 170 . Every person who maliciously and without probable cause procures a search warrant or warrant of arrest to be issued and executed, is guilty of a misdemeanor.

In United States criminal law, probable cause is the standard[1] by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition or formulation for probable cause. One traditional definition, which comes from the U.S. Supreme Court’s 1964 decision Beck v. Ohio, is when “whether at [the moment of arrest] the facts and circumstances within [an officer’s] knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense.”[2]

It is also the standard by which grand juries issue criminal indictments. The principle behind the standard is to limit the power of authorities to perform random or abusive searches (unlawful search and seizure), and to promote lawful evidence gathering and procedural form during criminal arrest and prosecution. The standard also applies to personal or property searches.[3]

The Supreme Court in Berger v. New York 1967 explained that the purpose of the probable cause requirement of the Fourth Amendment is to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed.[4] The term probable cause itself comes from the Fourth Amendment of the United States Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Probable in this case may relate to statistical probability or to a general standard of common behavior and customs. The context of the word probable here is not exclusive to community standards, and could partially derive from its use in formal mathematical statistics as some have suggested;[5] but cf. probō, Latin etymology.

In U.S. immigration proceedings, the “reason to believe” standard has been interpreted as equivalent to probable cause.[6]

Probable cause should not be confused with reasonable suspicion, which is the required criteria to perform a Terry stop in the United States of America. The criteria for reasonable suspicion are less strict than those for probable cause. source

The Constitution protects you from having your person or property searched without probable cause. But what is probable cause?

This guide explains how probable cause is defined and what probable cause requirements means for you. You’ll also see some examples of probable cause so you can better understand how this legal rule applies in the real world.

The Probable Cause Requirement

The Fourth Amendment of the U.S. Constitution protects people against being unlawfully searched or unfairly arrested by police. The text of the amendment reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Because of this amendment, police cannot conduct a search without probable cause of wrongdoing. And they cannot arrest you unless there is probable cause of a crime being committed.

If you are searched without probable cause, any evidence collected must be suppressed. This means it cannot be used against you in court. If you are arrested without probable cause, the arrest is considered invalid and any evidence collected as a result of it will be suppressed.

Amdt4.5.3 Probable Cause Requirement

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The concept of probable cause is central to the meaning of the Warrant Clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define probable cause; the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.1 Probable cause is to be determined according to the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.2 Warrants are favored in the law and their use will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.3 For the same reason, reviewing courts will accept evidence of a less judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.4 Courts will sustain the determination of probable cause so long as there was substantial basis for [the magistrate] to conclude that there was probable cause.5

Footnotes

  1.  Jump to essay-1Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). [T]he term ‘probable cause’. . . means less than evidence which would justify condemnation. Lock v. United States, 11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States, 267 U.S. 498, 504–05 (1925). It may rest upon evidence that is not legally competent in a criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need not be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 U.S. 160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107–08 (1965). An anticipatory warrant does not violate the Fourth Amendment as long as there is probable cause to believe that the condition precedent to execution of the search warrant will occur and that, once it has occurred, there is a fair probability that contraband or evidence of a crime will be found in a specified place. United States v. Grubbs, 547 U.S. 90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). An anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place.’ 547 U.S. at 94.
  2.  Jump to essay-2Brinegar v. United States, 338 U.S. 160, 175 (1949).
  3.  Jump to essay-3United States v. Ventresca, 380 U.S. 102, 108–09 (1965).
  4.  Jump to essay-4Jones v. United States, 362 U.S. 257, 270–71 (1960). Similarly, the preference for proceeding by warrant leads to a stricter rule for appellate review of trial court decisions on warrantless stops and searches than is employed to review probable cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause to search without a warrant should be subjected to de novo appellate review).
  5.  Jump to essay-5Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the issuing party must judge for himself the persuasiveness of the facts relied on by a [complainant] to show probable cause. Giordenello v. United States, 357 U.S. 480, 486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning information possessed by the affiant but not disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971).
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Fourth Amendment  – Search and Seizure

What Is the Definition of Probable Cause?

According to the U.S. Supreme Court, probable cause exists when the “facts and circumstances” that police officers know about, based on “reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.”

In other words, if a reasonably cautious person was provided with the information the police officers had at the time, that person would have a valid reason to believe that a crime was taking place. This reasonable belief of criminal activity is sufficient to justify either a search or an arrest.

Probable cause is determined based on the totality of the circumstances, so all available information can be considered in deciding if there is valid justification to either conduct a search or to arrest a suspect.

Satisfying the Probable Cause Requirement

Law enforcement officials must obtain a search warrant before conducting a search when it is possible to do so. A judge should only issue a search warrant if there is probable cause, which means there is enough credible information to suggest evidence of a crime will be discovered during the search.

Law enforcement officials must also obtain an arrest warrant before arresting someone when it is possible and practical to do so. Again, there must be probable cause or credible information suggesting someone most likely committed a criminal offense before an arrest warrant is issued.

Warrantless searches and warrantless arrests can occur in certain circumstances such as when police see evidence of a crime in plain view or when there are exigent circumstances because failure to act could result in the destruction of evidence or harm to others.

When a warrantless search or arrest occurs, law enforcement officials need to provide proof of probable cause after the fact. If law enforcement cannot satisfy the probable cause requirement, the evidence collected will be suppressed or the arrest will be deemed invalid.

Exceptions to the Probable Cause Requirement

There are very limited exceptions when evidence is still admissible even if it was obtained without probable cause.

Exceptions include circumstances where police were acting in good faith, but there was a problem they were unaware of. For example, if police arrest someone because they believe there is a valid warrant, but it turns out a mistake was made and there wasn’t, then evidence collected after the arrest would still be admissible.

Examples of Probable Cause

There are many different examples of probable cause that could justify a search or justify an arrest. Here are some common examples:

  • A law enforcement officer pulls someone over for a traffic violation. The officer notices drug paraphernalia on the front seat or notices the driver is slurring their words and is visibly intoxicated and likely committing a DUI. The drug paraphernalia or the obvious intoxication provides probable cause for a search of the vehicle and/or for an arrest.
  • A law enforcement officer observes someone pointing a gun at a convenience store employee in an apparent robbery. This unlawful act the officer observed provides probable cause for arrest.
  • A law enforcement officer visits a person’s home after a report of domestic violence and observes weapons in the home and bruises on the alleged victim. This provides probable cause for a search of the home and, if the available evidence creates a reasonable suspicion of a crime, also probable cause for an arrest.

Probable cause may come from officers directly observing evidence suggestive of criminal activity or from credible reports of criminal misconduct from trustworthy sources.

What If an Arrest or Search Occurs Without Probable Cause?

If you believe you were searched or arrested without probable cause, you can argue your constitutional rights were violated.

If a judge determines there was no probable cause and no exceptions such as the good faith exception apply, evidence collected as a result of the unlawful search or unlawful arrest will not be admissible in court against you.

In some cases, you may also have grounds for a lawsuit if you were searched or arrested without probable cause. However, suing the government can be a challenge even in situations where you believe your rights were violated as a result of sovereign immunity rules.

When you suspect a violation of your rights, it is very important to talk with an experienced attorney. If you have been charged with a crime, a lawyer can also help you to determine if you may be able to get evidence suppressed based on a constitutional violation. You should reach out to an attorney ASAP to protect yourself as you navigate the criminal justice system. source

California Penal Code § 170 – Misuse of the Warrant System – Crimes Against Public Justice

Probable Cause – Definition

Probable cause is a requirement found in the Fourth Amendment that must usually be met before police make an arrest, conduct a search, or receive a warrant. Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search). Under exigent circumstances, probable cause can also justify a warrantless search or seizure. Persons arrested without a warrant are required to be brought before a competent authority shortly after the arrest for a prompt judicial determination of probable cause.

Overview

Constitutional Basis

Although the Fourth Amendment states that “no warrants shall issue, but upon probable cause”, it does not specify what “probable cause” actually means. The Supreme Court has attempted to clarify the meaning of the term on several occasions, while recognizing that probable cause is a concept that is imprecise, fluid and very dependent on context. In Illinois v. Gates, the Court favored a flexible approach, viewing probable cause as a “practical, non-technical” standard that calls upon the “factual and practical considerations of everyday life on which reasonable and prudent men […] act”.1 Courts often adopt a broader, more flexible view of probable cause when the alleged offenses are serious.

Application to Arrests

The Fourth Amendment requires that any arrest be based on probable cause, even when the arrest is made pursuant to an arrest warrant. Whether or not there is probable cause typically depends on the totality of the circumstances, meaning everything that the arresting officers know or reasonably believe at the time the arrest is made.2 However, probable cause remains a flexible concept, and what constitutes the “totality of the circumstances” often depends on how the court interprets the reasonableness standard.3

A lack of probable cause will render a warrantless arrest invalid, and any evidence resulting from that arrest (physical evidence, confessions, etc.) will have to be suppressed.4 A narrow exception applies when an arresting officer, as a result of a mistake by court employees, mistakenly and in good faith believes that a warrant has been issued. In this case, notwithstanding the lack of probable cause, the exclusionary rule does not apply and the evidence obtained may be admissible.5 Unlike court clerks, prosecutors are part of a law enforcement team and are not “court employees” for purposes of the good-faith exception to the exclusionary rule.6

Application to Search Warrants

Probable cause exists when there is a fair probability that a search will result in evidence of a crime being discovered.7 For a warrantless search, probable cause can be established by in-court testimony after the search. In the case of a warrant search, however, an affidavit or recorded testimony must support the warrant by indicating on what basis probable cause exists.8

A judge may issue a search warrant if the affidavit in support of the warrant offers sufficient credible information to establish probable cause.9 There is a presumption that police officers are reliable sources of information, and affidavits in support of a warrant will often include their observations.10 When this is the case, the officers’ experience and training become relevant factors in assessing the existence of probable cause.11 Information from victims or witnesses, if included in an affidavit, may be important factors as well.12

The good faith exception that applies to arrests also applies to search warrants: when a defect renders a warrant constitutionally invalid, the evidence does not have to be suppressed if the officers acted in good faith.13 Courts evaluate an officer’s good faith by looking at the nature of the error and how the warrant was executed.14

Probable Cause in the Digital Age

While the Fourth Amendment’s probable cause requirement has historically been applied to physical seizures of tangible property, the issue of searches and seizures as applied to data has come to the Supreme Court’s attention in recent years.

In Riley v California (2014), the Supreme Court held: “The police generally may not, without a warrant, search digital information on a cellphone seized from an individual who has been arrested.” This would seem to group cell phones in with traditional items subject to traditional court tests and rules for searches and seizures.

Riley, however, did not end the inquiry into digital data’s interaction with the Fourth Amendment. For the 2018 term, the Supreme Court has agreed to hear Carpenter v. United States. Carpenter, accused of several robberies, was arrested after “his phone company shared data on his whereabouts with law-enforcement agents.”

Mr. Carpenter is challenging the “constitutionality of the Stored Communications Act, a law permitting phone companies to divulge information when there are ‘specific and articulable facts’ that are ‘relevant and material’ to a criminal investigation.” His complaint states that “his privacy rights under the Fourth Amendment were violated when his phone company shared data on his whereabouts with law-enforcement agents.” This case will likely have a significant impact on the role that probable cause plays in the ability of data companies to share user information with law enforcement.

  • 1. See Illinois v. Gates, 462 U.S. 213, 232 (1983).
  • 2. United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004).
  • 3. Prosecutor’s Manual for Arrest, Search and Seizure, § 6-6(b) (2004).
  • 4. See Mapp v. Ohio, 367 U.S. 643 (1961), at 648, 655.
  • 5. See Ariz. v. Evans, 514 U.S. 1 (1995).
  • 6. People v. Boyer, 305 Ill. App. 3d 374 (1999), at 379-80.
  • 7. See Gates, 462 U.S. at 238.
  • 8. Whiteley v. Warden, 401 U.S. 560, 564 (1971).
  • 9. Prosecutor’s Manual for Arrest, Search and Seizure, § 3-2(c) (2004).
  • 10. See Franks v. Delaware, 438 U.S. 154, 171 (1978).
  • 11. See United States v. Mick, 263 F.3d 553, 566 (6th Cir. 2001).
  • 12. See United States v. Schaefer, 87 F.3d 562, 566 (1st Cir. 1996).
  • 13. See United States v. White, 356 F.3d 865 (8th Cir. 2004).
  • 14. See, e.g., United States v. Clark, 638 F.3d 89, 100–05 (2d Cir. 2011)
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Supreme Court Interpretation of Probable Cause

The Fourth Amendment’s protection against unreasonable searches and seizures generally means law enforcement must have a warrant or “probable cause” to search someone’s property or make an arrest. But probable cause can come in many forms, and what qualifies as probable cause is something the Supreme Court has grappled with for many years.

What the Fourth Amendment Says

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

What is probable cause?

Law enforcement officers need an adequate reason, or “probable cause” to make an arrest, conduct a search, or seize someone’s property. This requirement stems from the Fourth Amendment’s protection against “unreasonable searches and seizures.”

How is probable cause established?

Probable cause exists when a police officer knows of facts or circumstances that would lead a reasonable person to believe a crime has been, or is going to be, committed.

No. reasonable suspicion is a lower threshold required for temporary detentions, such as a traffic stop or the detention of a building’s occupants while officers execute a search warrant. In these situations, “reasonable suspicion” means officers are aware of specific facts that would lead a reasonable person to believe criminal activity is taking place.

How Does Law Enforcement Establish Probable Cause?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

Much litigation has concerned the sufficiency of the complaint to establish probable cause. Mere conclusory assertions are not enough.1 In United States v. Ventresca,2 however, an affidavit by a law enforcement officer asserting his belief that an illegal distillery was being operated in a certain place, explaining that the belief was based upon his own observations and upon those of fellow investigators, and detailing a substantial amount of these personal observations clearly supporting the stated belief, was held to be sufficient to constitute probable cause. Recital of some of the underlying circumstances in the affidavit is essential, the Court said, observing that where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the reliance on the warrant process should not be deterred by insistence on too stringent a showing.3

Probable Cause Based on Tips from Informants

Requirements for establishing probable cause through reliance on information received from an informant has divided the Court in several cases. Although involving a warrantless arrest, Draper v. United States4 may be said to have begun the line of cases. A previously reliable, named informant reported to an officer that the defendant would arrive with narcotics on a particular train, and described the clothes he would be wearing and the bag he would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant fully fit the description, and arrested him. The Court held that the corroboration of part of the informer’s tip established probable cause to support the arrest. A case involving a search warrant, Jones v. United States,5 apparently considered the affidavit as a whole to see whether the tip plus the corroborating information provided a substantial basis for finding probable cause, but the affidavit also set forth the reliability of the informer and sufficient detail to indicate that the tip was based on the informant’s personal observation. Aguilar v. Texas6 held insufficient an affidavit that merely asserted that the police had reliable information from a credible person that narcotics were in a certain place, and held that when the affiant relies on an informant’s tip he must present two types of evidence to the magistrate. First, the affidavit must indicate the informant’s basis of knowledge—the circumstances from which the informant concluded that evidence was present or that crimes had been committed—and, second, the affiant must present information that would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,7 the Court applied Aguilar in a situation in which the affidavit contained both an informant’s tip and police information of a corroborating nature.

The Court rejected the totality test derived from Jones and held that the informant’s tip and the corroborating evidence must be separately considered. The tip was rejected because the affidavit contained neither any information which showed the basis of the tip nor any information which showed the informant’s credibility. The corroborating evidence was rejected as insufficient because it did not establish any element of criminality but merely related to details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United States v. Harris8 approved a warrant issued largely on an informer’s tip that over a two-year period he had purchased illegal whiskey from the defendant at the defendant’s residence, most recently within two weeks of the tip. The affidavit contained rather detailed information about the concealment of the whiskey, and asserted that the informer was a prudent person, that defendant had a reputation as a bootlegger, that other persons had supplied similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting evidence, including defendant’s reputation, could supplement this determination.

The Court expressly abandoned the two-part Aguilar–Spinelli test and returned to the totality of the circumstances approach to evaluate probable cause based on an informant’s tip in Illinois v. Gates.9 The main defect of the two-part test, Justice Rehnquist concluded for the Court, was in treating an informant’s reliability and his basis for knowledge as independent requirements. Instead, a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.10 In evaluating probable cause, the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.11

Probable Cause vs. First Amendment Rights

Where the warrant process is used to authorize the seizure of books and other items that may be protected by the First Amendment, the Court has required the government to observe more exacting standards than in other cases.12 Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large-scale seizures. Thus, in Marcus v. Search Warrant,13 the seizure of 11,000 copies of 280 publications pursuant to warrant issued ex parte by a magistrate who had not examined any of the publications but who had relied on the conclusory affidavit of a policeman was voided. Failure to scrutinize the materials and to particularize the items to be seized was deemed inadequate, and it was further noted that police were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.14 A state procedure that was designed to comply with Marcus by the presentation of copies of books to be seized to the magistrate for his scrutiny prior to issuance of a warrant was nonetheless found inadequate by a plurality of the Court, which concluded that since the warrant here authorized the sheriff to seize all copies of the specified titles, and since [appellant] was not afforded a hearing on the question of the obscenity even of the seven novels [seven of 59 listed titles were reviewed by the magistrate] before the warrant issued, the procedure was constitutionally deficient.15

Confusion remains, however, about the necessity for and the character of prior adversary hearings on the issue of obscenity. In a later decision the Court held that, with adequate safeguards, no pre-seizure adversary hearing on the issue of obscenity is required if the film is seized not for the purpose of destruction as contraband (the purpose in Marcus and A Quantity of Books), but instead to preserve a copy for evidence.16 It is constitutionally permissible to seize a copy of a film pursuant to a warrant as long as there is a prompt post-seizure adversary hearing on the obscenity issue. Until there is a judicial determination of obscenity, the Court advised, the film may continue to be exhibited; if no other copy is available either a copy of it must be made from the seized film or the film itself must be returned.17

The seizure of a film without the authority of a constitutionally sufficient warrant is invalid; seizure cannot be justified as incidental to arrest, as the determination of obscenity may not be made by the officer himself.18 Nor may a warrant issue based solely on the conclusory assertions of the police officer without any inquiry by the magistrate into the factual basis for the officer’s conclusions.19 Instead, a warrant must be supported by affidavits setting forth specific facts in order that the issuing magistrate may ‘focus searchingly on the question of obscenity.’20 This does not mean, however, that a higher standard of probable cause is required in order to obtain a warrant to seize materials protected by the First Amendment. Our reference in Roaden to a ‘higher hurdle of reasonableness’ was not intended to establish a ‘higher’ standard of probable cause for the issuance of a warrant to seize books or films, but instead related to the more basic requirement, imposed by that decision, that the police not rely on the ‘exigency’ exception to the Fourth Amendment warrant requirement, but instead obtain a warrant from a magistrate.’21

In Stanford v. Texas,22 the Court voided a seizure of more than 2,000 books, pamphlets, and other documents pursuant to a warrant that merely authorized the seizure of books, pamphlets, and other written instruments concerning the Communist Party of Texas. The constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain. . . . No less a standard could be faithful to First Amendment freedoms.23

However, the First Amendment does not bar the issuance or execution of a warrant to search a newsroom to obtain photographs of demonstrators who had injured several policemen, although the Court appeared to suggest that a magistrate asked to issue such a warrant should guard against interference with press freedoms through limits on the type, scope, and intrusiveness of the search.24

More on the Fourth Amendment

Footnotes

1.    Byars v. United States, 273 U.S. 28 (1927) (affiant stated he has good reason to believe and does believe that defendant has contraband materials in his possession); Giordenello v. United States, 357 U.S. 480 (1958) (complainant merely stated his conclusion that defendant had committed a crime). See also Nathanson v. United States, 290 U.S. 41 (1933).

2.    380 U.S. 102 (1965).

3.    380 U.S. at 109.

4.    8 U.S. 307 (1959). For another case applying essentially the same probable cause standard to warrantless arrests as govern arrests by warrant, see McCray v. Illinois, 386 U.S. 300 (1967) (informant’s statement to arresting officers met Aguilar probable cause standard). See also Whiteley v. Warden, 401 U.S. 560, 566 (1971) (standards must be at least as stringent for warrantless arrest as for obtaining warrant).

5.    362 U.S. 257 (1960).

6.    378 U.S. 108 (1964).

7.    393 U.S. 410 (1969). Both concurring and dissenting Justices recognized the tension between Draper and Aguilar. See id. at 423 (Justice White concurring), id. at 429 (Justice Black dissenting and advocating the overruling of Aguilar).

8.    403 U.S. 573 (1971). See also Adams v. Williams, 407 U.S. 143, 147 (1972) (approving warrantless stop of motorist based on informant’s tip that may have been insufficient under Aguilar and Spinelli as basis for warrant).

9.    462 U.S. 213 (1983). Justice Rehnquist’s opinion of the Court was joined by Chief Justice Burger and by Justices Blackmun, Powell, and O’Connor. Justices Brennan, Marshall, and Stevens dissented.

10. 462 U.S. at 213.

11. 462 U.S. at 238. For an application of the Gates totality of the circumstances test to the warrantless search of a vehicle by a police officer, see, e.g. Florida v. Harris, 568 U.S. 237 (2013).

12.  Marcus v. Search Warrant, 367 U.S. 717, 730–31 (1961); Stanford v. Texas, 379 U.S. 476, 485 (1965). For First Amendment implications of seizures under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO), see First Amendment: Obscenity and Prior Restraint.

13. 367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S. 436 (1957).

14. Marcus v. Search Warrant, 367 U.S. 717, 732 (1961).

15. A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964).

16. Heller v. New York, 413 U.S. 483 (1973).

17. Id. at 492–93. But cf. New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986), rejecting the defendant’s assertion, based on Heller, that only a single copy rather than all copies of allegedly obscene movies should have been seized pursuant to warrant.

18. Roaden v. Kentucky, 413 U.S. 496 (1973). See also Lo-Ji Sales v. New York, 442 U.S. 319 (1979); Walter v. United States, 447 U.S. 649 (1980). These special constraints are inapplicable when obscene materials are purchased, and there is consequently no Fourth Amendment search or seizure. Maryland v. Macon, 472 U.S. 463 (1985).

19. Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) (per curiam).

20. New York v. P.J. Video, Inc., 475 U.S. 868, 873–74 (1986) (quoting Marcus v. Search Warrant, 367 U.S. 717, 732 (1961)).

21. New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986).

22. 379 U.S. 476 (1965).

23. 379 U.S. at 485–86. See also Marcus v. Search Warrant, 367 U.S. 717, 723 (1961).

24. Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See id. at 566 (containing suggestion mentioned in text), and id. at 566 (Justice Powell concurring) (more expressly adopting that position). In the Privacy Protection Act, Pub. L. No. 96-440, 94 Stat. 1879 (1980), 42 U.S.C. § 2000aa, Congress provided extensive protection against searches and seizures not only of the news media and news people but also of others engaged in disseminating communications to the public, unless there is probable cause to believe the person protecting the materials has committed or is committing the crime to which the materials relate.

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What Is Reasonable Doubt?

Reasonable doubt is legal terminology referring to insufficient evidence that prevents a judge or jury from convicting a defendant of a crime. It is the traditional standard of proof that must be exceeded to secure a guilty verdict in a criminal case in a court of law.

In a criminal case, it is the job of the prosecution to convince the jury that the defendant is guilty of the crime with which he has been charged and, therefore, should be convicted.  The phrase “beyond a reasonable doubt” means that the evidence presented and the arguments put forward by the prosecution establish the defendant’s guilt so clearly that they must be accepted as fact by any rational person.

If the jury cannot say with certainty based on the evidence presented that the defendant is guilty, then there is reasonable doubt and they are obligated to return a non-guilty verdict.

The Reasonable Doubt Standard

Penal Code Title 7, Chapter 2, Section 1096 of the California Penal Code states that a defendant in a criminal trial must be proven guilty to a moral certainty and beyond a reasonable doubt. 

Section 1096 also states that a defendant is presumed innocent until the contrary is proven. If there is a reasonable doubt about the defendant’s guilt, they are entitled to an acquittal.

1096. A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: “It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” source

“Beyond a reasonable doubt” means that the prosecution must convince the jury that there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant’s guilt in order to render a guilty verdict.

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty .

California law establishes standards which must be met when making an arrest. Section 836 of Title 3, Chapter 5 (“Making of Arrest”) of the California Penal Code (PC) states that a peace officer may make an arrest in obedience to a warrant, or may, without a warrant, arrest a person:

• Whenever he/she has reasonable cause to believe that the person to be arrested has committed a public offense in his or her presence; or

• When a person arrested has committed a felony, although not in his or her presence; or

• Whenever he/she has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.

As defined by Black”s Law Dictionary, reasonable or probable cause is the state of facts which would lead a reasonable person to believe and suspect that the person sought is guilty of a crime. In other words, there must be more evidence for than against the prospect that the suspect has committed a crime, yet reserving some possibility for doubt. Case law pursuant to PC Section 836 further states that probable cause does not require evidence to convict but only to show that the person should stand trial.

Pursuant to California Penal Code Section 836, peace officers are authorized to make an arrest based on probable cause. As such, the Police must believe that there is more evidence for than against the prospect that the person sought is guilty of a crime, yet reserving some possibility for doubt. source

KEY TAKEAWAYS

  • Reasonable doubt is insufficient evidence that prevents a judge or jury from convicting a defendant of a crime.
  • If it cannot be proved without a doubt that a defendant in a criminal case is guilty, then that person should not be convicted.
  • Each juror must walk into the courtroom presuming the accused is innocent and it is the job of the prosecutor to convince them otherwise.
  • Reasonable doubt is used exclusively in criminal cases because the consequences of a conviction are severe.
  • Other commonly used standards of proof in criminal cases are probable cause, reasonable belief and reasonable suspicion, and credible evidence.

Understanding Reasonable Doubt

Under U.S. law, a defendant is considered innocent until proven guilty. Reasonable doubt stems from insufficient evidence. If it cannot be proved without a doubt that the defendant is guilty, that person should not be convicted. Verdicts do not necessarily reflect the truth, they reflect the evidence presented. A defendant’s actual innocence or guilt may be an abstraction.

Beyond a reasonable doubt is the highest standard of proof used in any court of law and is widely accepted around the world. It is used exclusively in criminal cases because the consequences of a conviction are severe—a criminal conviction could deprive the defendant of liberty or even life.

Difference Between Belief And Certainty

It isn’t unusual for a juror to believe that the defendant is a criminal but not be convinced with certainty that they committed the particular crime they are charged with. That isn’t good enough to find the defendant guilty.

Reasonable doubt comes from certainty rather than belief. Belief and instinct are important in many instances in life but cannot be used to convict a defendant if not based on fact.2

Unreasonable Doubt

The reasonable doubt standard forces jurors to ignore doubts considered unreasonable when determining if a defendant is guilty. Unreasonable doubt, which often stems from the possibility that nonexistent or unpresented evidence might explain a defendant’s actions and lead to exoneration, is not enough to acquit the defendant.3

Exculpatory Evidence

Evidence favorable to the defendant in a criminal trial can also create reasonable doubt as to whether the accused committed the crime. The defendant’s team should not be viewed with more skepticism than the prosecutor’s team. Each shred of evidence should be given the same consideration. This is important as any reasonable doubt, however small, that the defendant did not do it is grounds for an acquittal.4

Other Standards of Proof

Other commonly used standards of proof in criminal cases are:

  • Probable Cause: A requirement found in the Fourth Amendment that the police have more than just suspicion that a suspect committed a crime before making an arrest, conducting a search, or serving a warrant.5
  • Reasonable Belief and reasonable suspicion: A reasonable presumption by a police officer that a crime was, is, or will be committed. This is more than a hunch and less than probable cause and is used to determine the legality of a police officer’s decision to take action.
  • Credible Evidence: Evidence that is deemed worthy of being presented in a court and to the jury.

Meanwhile, evidentiary standards in civil cases include:

  • Clear and convincing evidence: The judge or jurors have concluded that there is a high probability that the facts of the case as presented by one party represent the truth. The standard of clear and convincing evidence is used in some civil cases, and it may appear in some aspects of a criminal case, such as a decision on whether a defendant is fit to stand trial.6 The language appears in several U.S. state laws.
  • Preponderance of the evidence: Both sides have presented their cases, and one side seems more likely to be true. Most civil cases require a “preponderance of the evidence,” as this is a lower standard of proof.

Presumption of Innocence

The criminal justice system seeks to unearth the truth, convict the guilty, and let the innocent walk free. In order for this to work, each juror must walk into the courtroom presuming the accused is innocent.7

“It is better that 100 guilty persons should escape than one innocent person should suffer.”—Benjamin Franklin 8

This presumption requires that jurors have a skeptical mindset that must be overcome before they can reach a guilty verdict. The jurors must not just want to believe something or be swayed by prejudices. They must view each shred of evidence presented by the prosecution with skepticism.

Why Is Reasonable Doubt Important?

The reasonable doubt standard aims to reduce the chances of an innocent person being convicted. Criminal cases can result in hefty convictions, including death or life sentences, so a person should only be charged if the jurors are 100% confident, based on the evidence presented, of their guilt.

How Do You Prove Reasonable Doubt?

The jurors must walk into the courtroom presuming the accused is innocent. Reasonable doubt exists unless the prosecution can prove that the accused is guilty. This can be achieved by supplying evidence and inviting people to testify on the stand.

 

What Are the Three Burdens of Proof?

The three burdens of proof for criminal cases are “beyond a reasonable doubt,” “probable cause,” and “reasonable suspicion.”

 

What Is the Difference Between Doubt and Reasonable Doubt?

A doubt can be considered reasonable when it’s connected to evidence or an absence of evidence. Sympathies or prejudices are not reasonable grounds for doubt.

The Bottom Line

Reasonable doubt is an important legal standard that strives to prevent innocent people from getting convicted for a crime they didn’t commit. If it cannot be proved without a reasonable doubt that the defendant is guilty, then they should not be convicted of the crime as charged. source

Reasonable suspicion

Overview

Reasonable suspicion is a standard used in criminal procedure. Reasonable suspicion is used in determining the legality of a police officer’s decision to perform a search.

When an officer stops someone to search the person, courts require that the officer has either a search warrant, probable cause to search, or a reasonable suspicion to search. In descending order of what gives an officer the broadest authority to perform a search, courts have found that the order is search warrant, probable cause, and then reasonable suspicion.

Reasonable Suspicion As Applied to a Stop & Frisk

In Terry v. Ohio 392 U.S. 1 (1968), the Supreme Court held that if a police officer believes that an individual has a weapon which poses a danger to the officer, the officer may stop that individual to search the individual for a weapon. The Court held that to determine whether the police officer acted reasonably in the stop, a court should not look at whether he has a hunch, but rather “to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), a Nevada state statute “requires a person detained by an officer [during a Terry stop] to identify himself” by providing his name. In Hiibel, the Supreme Court held that because the statute only asked for a name, not identification, and because it did “not alter the nature of the stop itself, changing neither its duration nor its location,” the statute “properly balances the intrusion on the individual’s interests against the promotion of legitimate government interests.” Thus the Court held that the statute is constitutional. source

Probable Cause vs Reasonable suspicion

Definition of Probable Cause – Probable cause means that a reasonable person would believe that a crime was in the process of being committed, had been committed, or was going to be committed.

Legal Repercussions of Probable Cause – Probable cause is enough for a search or arrest warrant. It is also enough for a police officer to make an arrest if he sees a crime being committed.

Definition of Reasonable Suspicion – Reasonable suspicion has been defined by the United States Supreme Court as “the sort of common-sense conclusion about human behavior upon which practical people . . . are entitled to rely.” Further, it has defined reasonable suspicion as requiring only something more than an “unarticulated hunch.” It requires facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion.

Reasonable suspicion means that any reasonable person would suspect that a crime was in the process of being committed, had been committed or was going to be committed very soon.

Legal Repercussions of Reasonable Suspicion – If an officer has reasonable suspicion in a situation, he may frisk or detain the suspect briefly. Reasonable suspicion does not allow for the searching of a person or a vehicle unless the person happens to be on school property. Reasonable suspicion is not enough for an arrest or a search warrant.

Stop and Frisk – In Terry v. Ohio, 392 U.S. 1 (1968), the court recognized that a limited stop and frisk of an individual could be conducted without a warrant based on less than probable cause. The stop must be based on a reasonable, individualized suspicion based on articulable facts, and the frisk is limited to a pat-down for weapons. An anonymous tip that a person is carrying a gun is not, by itself, sufficient to justify a stop and frisk. Florida v. J.L., 529 U.S. 266 (2000).

Florida v. Bostick 501 U.S. 429, 437 (1991) – A person’s refusal to cooperate is not sufficient for reasonable suspicion.

Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). – A person’s flight in a high crime area after seeing police was sufficient for reasonable suspicion to stop and frisk.

The same requirement of founded suspicion for a “person” stop applies to stops of individual vehicles. United States v. Arvizu, 534 U.S. 266 (2002). The scope of the “frisk” for weapons during a vehicle stop may include areas of the vehicle in which a weapon may be placed or hidden. Michigan v. Long, 463 U.S. 1032 (1983). The police may order passengers and the driver out of or into the vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408 (1997). The passengers may not be detained longer than it takes the driver to receive his citation. Once the driver is ready to leave, the passengers must be permitted to go as well. During a stop for traffic violations, the officers need not independently have reasonable suspicion that criminal activity is afoot to justify frisking passengers, but they must have reason to believe the passengers are armed and dangerous. Arizona v. Johnson, 129 S Court. 781, 784 (2009).

The Difference Between the Two – The terms probable cause and reasonable suspicion are often confused and misused. While both have to do with a police officer’s overall impression of a situation, the two terms have different repercussions on a person’s rights, the proper protocol and the outcome of the situation.

Reasonable suspicion is a step before probable cause. At the point of reasonable suspicion, it appears that a crime may have been committed. The situation escalates to probable cause when it becomes obvious that a crime has most likely been committed.

Probable Cause to Search
In order to obtain a search warrant, the court must consider whether based on the totality of the information there is a fair probability that contraband, evidence or a person will be found in a particular place. Illinois v. Gates, 462 U.S. 213 (1983).

Probable Cause to Arrest
In order to arrest a suspect the officer must have a good faith belief that a crime has been committed and the individual he is arresting committed the crime. In Maryland v. Pringle, 540 U.S. 366 (2003). In Pringle, an officer was permitted to arrest three individuals in a vehicle where marijuana was discovered. The court reasoned that, even though the officers did not have evidence that any one of the three occupants was responsible for the drugs, probable cause existed as to all of them because co-occupants of a vehicle are often engaged in a common enterprise and all three denied knowing anything about the drugs.

Texas – Goldberg v. State, 95 SW.3d 345 (Tex. App. 2002).

An arrest is proper when it is based upon article 14.03 (a)(1) of the Texas Code of Criminal Procedure, which permits a peace officer to arrest a person without a warrant if the person is found in a suspicious place and under circumstances that reasonably show that such person has been guilty of some felony or breach of the peace.

Facts: Mr. Goldberg was accused of entering a wig store, punching one attendant in the throat, and cutting the other attendant’s wrist and stabbing her when she attempted to call for help. The assailant quickly left the store. A witness in the parking lot followed the assailant to his vehicle. The witness provided police with a license plate number for the vehicle. The police traced the vehicle and located the defendant, the son of the owner of the vehicle. The police handcuffed Mr. Goldberg, performed a pat down and informed him of his rights. Mr. Goldberg stated he was willing to talk to the officers. He was later uncuffed.

The officer felt the hood of the vehicle and it was still warm. Mr. Goldberg denied driving the vehicle or knowledge of the crime. The officers also noticed a blood stain on Mr. Goldberg’s shirt and a red mark on his chest. Goldberg consented to a search of the house, his apartment and the vehicle. The officers found fibers matching the wigs at the wig shop. Mr. Goldberg claimed that the vehicle had been stolen several times but the person always returned the vehicle to the residence. Mr. Goldberg was taken to the police station and consented to a police interrogation. He later was released to his mother. Mr. Goldberg challenged the arrest as unlawful.

The court found that even if the detention rose to the level of an arrest when the defendant was transported to the police station it was proper. Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. Guzman v. State, 955 SW.2d at 87; Amores v. State, 816 SW.2d 407, 413 (Tex. Crim. App.1991). Probable cause deals with probabilities; it requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. Guzman, 955 SW.2d at 87. source

 

 

 

 

 

 

 

 

 

 

 

 

 

 Principles of Probable Cause and Reasonable Suspicion

Although there is certainly more to probable cause and reasonable suspicion than just principles, it’s a good place to start, so that is where we will begin this four-part series. In part two, which begins on page 9, we will explain how officers can prove that the information they are relying upon to establish probable cause or reasonable suspicion was sufficiently reliable that is has significance. Then, in the Fall 2014 edition we will cover probable cause to arrest, including the various circumstances that officers and judges frequently consider in determining whether it exists. The series will conclude in the Winter 2015 edition with an discussion of how officers can determine whether they have probable cause to search.

It is ordinarily a bad idea to begin an article by admitting that the subjects to be discussed cannot be usefully defined. But when the subjects are probable cause and reasonable suspicion1, and when the readership is composed of people who have had some experience with them, it would be pointless to deny it. Consider that the Seventh Circuit once tried to provide a good legal definition but concluded that, when all is said and done, it just means having “a good reason to act.”2 Even the Supreme Court— whose many powers include defining legal terms— decided to pass on probable cause because, said the Court, it is “not a finely-tuned standard”3 and is actually an “elusive” and “somewhat abstract” concept.4 As for reasonable suspicion, the uncertainty is even worse. For instance, in United States v. Jones the First Circuit would only say that it “requires more than a naked hunch.”5

But this imprecision is actually a good thing because probable cause and reasonable suspicion are ultimately judgments based on common sense, not technical analysis. Granted, they are important judgments because they have serious repercussions. But they are fundamentally just rational assessments of the convincing force of information, which is something the human brain does all the time without consulting a rule book. So instead of being governed by a “neat set of rules,”6 these concepts mainly require that officers understand certain principles— principles that usually enable them to make these determinations with a fair degree of consistency and accuracy.

First, however, it is necessary to explain the basic difference between probable cause and reasonable suspicion, as these terms will be used throughout this series. Both are essentially judgments as to the existence and importance of evidence. But they differ as to the level of proof that is required. In particular, probable cause requires evidence of higher quality and quantity than reasonable suspicion because it permits officers to take actions that are more intrusive, such as arresting people and searching things. In contrast, reasonable suspicion is the standard for lesser intrusions, such as detentions and pat searches. As the Supreme Court explained:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quality or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.7

What Probability is Required?

When people start to learn about probable cause or reasonable suspicion, they usually want a number: What probability percentage is required?8 Is it 80%? 60%? 50%? Lower than 50? No one really knows, which might seem strange because, even in a relatively trivial venture such as sports betting, people would not participate unless they had some idea of the odds.

Nevertheless, the Supreme Court has refused to assign a probability percentage to these concepts because it views them as nontechnical standards based on common sense, not mathematical precision.9 “The probable cause standard,” said the Court, “is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of circumstances.”10 Similarly, the Tenth Circuit observed, “Besides the difficulty of agreeing on a single number, such an enterprise would, among other things, risk diminishing the role of judgment based on situation-sense.”11 Still, based on inklings from the United States Supreme Court, it is possible to provide at least a ballpark probability percentage for probable cause.

Reasonable suspicion, on the other hand, remains an enigma.

Probable cause

Many people assume that probable cause requires at least a 51% probability because anything less would not be “probable.” While this is technically true, the Supreme Court has ruled that, in the context of probable cause, the word “probable” has a somewhat different meaning. Specifically, it has said that probable cause requires neither a preponderance of the evidence nor “any showing that such belief be correct or more likely true than false,”12 and that it requires only a “fair” probability, not a statistical probability.13 Thus, it is apparent that probable cause requires something less than a 50% chance.14 How much less? Although no court has tried to figure it out, we suspect it is not much lower than 50%.

Reasonable suspicion

As noted, the required probability percentage for reasonable suspicion is a mystery. Although the Supreme Court has said that it requires “considerably less [proof] than preponderance of the evidence”15 (which means “considerably less” than a 50.1% chance), this is unhelpful because a meager 1% chance is “considerably less” than 51.1% but no one seriously thinks that would be enough. Equally unhelpful is the Supreme Court’s observation that, while probable cause requires a “fair probability,” reasonable suspicion requires only a “moderate” probability.16 What is the difference between a “moderate” and “fair” probability? Again, nobody knows. What we do know is that the facts need not rise to the level that they “rule out the possibility of innocent conduct.”17 As the Court of Appeal explained, “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity.”18 We also know that reasonable suspicion may exist if the circumstances were merely indicative of criminal activity. In fact, the California Supreme Court has said that if the circumstances are consistent with criminal activity, they “demand“ an investigation.”19

Basic Principles

Having given up on a mathematical solution to the problem, we must rely on certain basic principles. And the most basic principle is this: Neither probable cause nor reasonable suspicion can exist unless officers can cite “specific and articulable facts” that support their judgment.20 This demand for specificity is so important that the Supreme Court called it the “central teaching of this Court’s Fourth Amendment jurisprudence.” 21 The question, then, is this: How can officers determine whether their “specific and articulable” facts are sufficient to establish probable cause or reasonable suspicion? That is the question we will address in the remainder of this article.

Totality of the circumstances

Almost as central as the need for facts is the requirement that, in determining whether officers have probable cause and reasonable suspicion, the courts will consider the totality of circumstances. This is significant because it is exactly the opposite of how some courts did things many years ago. That is, they would utilize a “divide-and-conquer”22 approach which meant subjecting each fact to a meticulous evaluation, then frequently ruling that the officers lacked probable cause or reasonable suspicion because none of the individual facts were compelling. This practice officially ended in 1983 when, in the landmark decision in Illinois v. Gates, the Supreme Court announced that probable cause and reasonable suspicion must be based on an assessment of the convincing force of the officers’ information as a whole. “We must be mindful,” said the Fifth Circuit, “that probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers. We weigh not individual layers but the laminated total.23 Thus, in People v. McFadin the court responded to the defendant’s “divide-and-conquer” strategy by utilizing the following analogy:

Defendant would apply the axiom that a chain is no stronger than its weakest link. Here, however, there are strands which have been spun into a rope. Although each alone may have insufficient strength, and some strands may be slightly frayed, the test is whether when spun together they will serve to carry the load of upholding [the probable cause determination].24

Here is an example of how the “totality of the circumstances” test works and why it is so important. In Maryland v. Pringle 25 an officer made a traffic stop on a car occupied by three men and, in the course of the stop, saw some things that caused him to suspect that the men were drug dealers. One of those things was a wad of cash ($763) that the officer had seen in the glove box. He then conducted a search of the vehicle and found cocaine. But a Maryland appellate court ruled the search was unlawful because the presence of money is “innocuous.” The Supreme Court reversed, saying the Maryland court’s “consideration of the money in isolation, rather than as a factor in the totality of the circumstances, is mistaken.”

Common sense

Not only did the Court in Gates rule that probable cause must be based on a consideration of the totality of circumstances, it ruled that the significance of the circumstances must be evaluated by applying common sense, not hypertechnical analysis. In other words, the circumstances must be “viewed from the standpoint of an objectively reasonable police officer.”26 As the Court explained:

Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a practical, nontechnical conception. In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.27

Legal, but suspicious, activities

It follows from the principles discussed so far that it is significant that officers saw the suspect do something that, while not illegal, was suspicious in light of other circumstances.28 As the Supreme Court explained, the distinction between criminal and noncriminal conduct “cannot rigidly control” because probable cause and reasonable suspicion “are fluid concepts that take their substantive content from the particular contexts in which they are being assessed.”29 For example, in Massachusetts v. Upton the state court ruled that probable cause could not have existed because the evidence “related to innocent, nonsuspicious conduct or related to an event that took place in public.” Acknowledging that no single piece of evidence was conclusive, the Supreme Court reversed, saying the “pieces fit neatly together.”30 Similarly, the Court of Appeal noted that seeing a man running down a street “is indistinguishable from the action of a citizen engaged in a program of physical fitness.” But it becomes “highly suspicious” when it is “viewed in context of immediately preceding gunshots.”31

Another example of how noncriminal activities can become highly suspicious is found in Illinois v. Gates.32 It started with an anonymous letter to a police department saying that a local resident, Lance Gates, was a drug trafficker; and it explained in some detail the procedure that Gates and his wife, Sue, would follow in obtaining drugs in Florida. DEA agents followed both of them (Gates flew, Sue drove) and both generally followed the procedure described by the letter writer. This information led to a search warrant and Gates’ arrest. On appeal, he argued that the warrant was not supported by probable cause because the agents did not see him or his wife do anything illegal. It didn’t matter, said the Supreme Court, because the “seemingly innocent activity became suspicious in light of the initial tip.”

Multiple incriminating circumstances

Here is a principle that, while critically important, is often overlooked or underappreciated: The chances of having probable cause or reasonable suspicion increase exponentially with each additional piece of independent incriminating evidence that comes to light. This is because of the unlikelihood that each “coincidence of information”33 could exist in the absence of a fair or moderate possibility of guilt.

For example, in a Kings County murder case probable cause to arrest the defendant was based on the following: When the crime occurred, a car similar to defendant’s “uniquely painted” vehicle had been seen in a rural area, two-tenths of a mile from where a 15-year old girl had been abducted. In addition, an officer saw “bootprints and tire prints” nearby and “he compared them visually with boots seen in, and the treads of the tires of, defendant’s car, which he knew was parked in front of defendant’s hotel and registered to defendant. He saw the condition of the victim’s body; he knew that defendant had a prior record of conviction for forcible rape. He also knew of the victim’s occasional employment as a babysitter at the farm where defendant worked.” In ruling that these pieces of independent incriminating evidence constituted probable cause, the California Supreme Court said:

The probability of the independent concurrence of these factors in the absence of the guilt of defendant was slim enough to render suspicion of defendant reasonable and probable.34

Similarly, in a case from Santa Clara County,35 a man named Anthony Spears, who worked at a Chili’s in Cupertino, arrived at the restaurant one morning and “discovered” that the manager had been shot and killed before the restaurant had opened for the day. In the course of their investigation, sheriff ’s deputies learned that Spears had left home shortly before the murder even though it was his day off, there were no signs of forced entry, and that Marlboro cigarette butts (the same brand that Spears smoked) had been found in an alcove near the manager’s office. Moreover, Spears had given conflicting statements about his whereabouts when the murder occurred; and, after “discovering” the manager’s body, he told other employees that the manager had been “shot” but the cause of death was not apparent from the condition of the body.

Based on this evidence, detectives obtained a warrant to search Spears’ apartment and the search netted, among other things, “large amounts of bloodstained cash.” On appeal, Spears argued that the detectives lacked probable cause for the warrant but the court disagreed, saying, “[W]e believe that all of the factors, considered in their totality, supplied a degree of suspicion sufficient to support the magistrate’s finding of probable cause.”

While this principle also applies to reasonable suspicion to detain, a lesser amount of independent incriminating evidence will be required. The following are examples from various cases:

  • The suspect’s physical description and his clothing were similar to that of the perpetrator.36
  • In addition to a description similarity, the suspect was in a car similar in appearance to that of the perpetrator.37
  • The suspect resembled the perpetrator and he was in the company of a person who was positively identified as one of two men who had just committed the crime.38
  • The suspect resembled the perpetrator plus he was detained shortly after the crime occurred at the location where the perpetrator was last seen or on a logical escape route.39
  • In addition to resembling the perpetrator, the suspect did something that tended to demonstrate consciousness of guilt; e.g., he lied to officers or made inconsistent statements, he made a furtive gesture, he reacted unusually to the officer’s presence, he attempting to elude officers.40
  • The suspect resembled the perpetrator and possessed fruits of the crime.41
  • The number of suspects in the vehicle corresponded with the number of people who had just committed the crime, plus they were similar in age, sex, and nationality.42

Unique circumstances

The odds of having reasonable suspicion or probable cause also increase dramatically if the matching or similar characteristics were unusual or distinctive. As the Court of Appeal observed, “Uniqueness of the points of comparison must also be considered in testing whether the description would be inapplicable to a great many others.”43

For example, the courts have taken note of the following unique circumstances:

  • The suspect and perpetrator both had bandages on their left hands;44
  • The suspect and perpetrator were in vehicles of the same make and model with tinted windows and a dark-colored top with light-colored side.45 Conversely, the Second Circuit noted that “when the points of similarity are less unique or distinctive, more similarities are required before the probability of identity between the two becomes convincing.”46

Inferences based on circumstantial evidence As noted earlier, probable cause and reasonable suspicion must be based on “specific and articulable facts.” However, the courts will also consider an officer’s inferences as to the meaning or significance of the facts so long as the inference appeared to be reasonable. It is especially relevant that the inference was based on the officer’s training and experience.47 In the words of the Supreme Court, “The evidence must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”48 Or, as the Court explained in United States v. Arvizu:

The process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.49

For example, in People v. Soun 50 the defendant and three other men killed the owner of a video store in San Jose during a botched robbery. The men were all described as Asian, but witnesses provided conflicting descriptions of the getaway car. Some said it was a two-door Japanese car, but one said it was a Volvo “or that type of car.” Two of the witnesses provided a partial license plate number. One said he thought it began with 1RCS, possibly 1RCS525 or 1RCS583. The other said he thought it was 1RC(?)538.

A San Jose PD officer who was monitoring these developments at the station made two inferences:

(1) the actual license plate probably began with 1RCS, and (2) the last three numbers included a 5 and an 8. So he started running these combinations through DMV until he got a hit on 1RCS558, a 1981 Toyota registered in Oakland. Because the car was last seen heading toward Oakland, officers notified OPD and, the next day, OPD officers stopped the car and eventually arrested the occupants for the murder. This, in turn, resulted in the seizure of the murder weapon. On appeal, one of the occupants, Soun, argued that the weapon should have been suppressed because the detention was based on nothing more than “hunch and supposition.” On the contrary, said the court, what Soun labeled “hunch and supposition” was actually “intelligent and resourceful police work.”

Similarly, in People v. Carrington 51 the California Supreme Court ruled that police in Los Altos reasonably inferred that two commercial burglaries were committed by the same person based on the following: “the two businesses were located in close proximity to each other, both businesses were burglarized on or about the same date, and in both burglaries blank checks were stolen.”

Hunches and unsupported conclusions

It is well known that hunches play an important role in solving crimes. “A hunch,” said the Ninth Circuit, “may provide the basis for solid police work; it may trigger an investigation that uncovers facts that establish reasonable suspicion, probable cause, or even grounds for a conviction.”52 Still, hunches are absolutely irrelevant in determining the existence of probable cause or reasonable suspicion. In other words, a hunch “is not a substitute for the necessary specific, articulable facts required to justify a Fourth Amendment intrusion.”53

The same is true of unsupported conclusions.54 For example, in ruling that a search warrant affidavit failed to establish probable cause, the court in U.S. v. Underwood 55 noted that much of the affidavit was “made up of conclusory allegations” that were “entirely unsupported by facts.” Two of these allegation were that officers had made “other seizures” and had “intercepted conversations” that tended to prove the defendant was a drug trafficker. “[T]hese vague explanations,” said the court, “add little if any support because they do not include underlying facts.”

Information known to other officers

Information is ordinarily irrelevant unless it had been communicated to the officer who acted on it; i.e., the officer who made the detention, arrest, or search, or the officer who applied for the search or arrest warrant.56 To put it another way, a search or seizure made without sufficient justification cannot be rehabilitated in court by showing that it would have been justified if the officer had been aware of information possessed by a colleague. As the California Supreme Court explained, “The question of the reasonableness of the officers’ conduct is determined on the basis of the information possessed by the officer at the time a decision to act is made.”57

There is, however, an exception to this rule known as the “official channels rule” by which officers may detain, arrest, or sometimes search a suspect based solely on an official request to do so from another officer or agency. Under this rule, officers may also act based on information transmitted via a law enforcement database, such as NCIC and CLETS.58

Although the officers who act upon such transmissions are seldom aware of many, if any, of the facts known to the originating officer, this does not matter because, as the U.S. Supreme Court pointed out, “[E]ffective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.”59

For example, in U.S. v. Lyons 60 state troopers in Michigan stopped and searched the defendant’s car based on a tip from DEA agents that the driver might be transporting drugs. On appeal, Lyons argued that the search was unlawful because the troopers had no information as to why she was a suspected of carrying drugs. But the court responded “it is immaterial that the troopers were unaware of all the specific facts that supported the DEA’s reasonable suspicion analysis. The troopers possessed all the information they needed to act—a request by the DEA (subsequently found to be well-supported).”

Note that, although officers “are entitled to presume the accuracy of information furnished to them by other law enforcement personnel,”61 the officers who disseminated the information may later be required to prove in court that they had received such information and that they reasonably believed it was reliable.62

Information inadmissible in court

In determining whether probable cause or reasonable suspicion exist, officers may consider both hearsay and privileged communications.63 For example, although a victim’s identification of the perpetrator might constitute inadmissible hearsay or fall within the marital privilege, officers may rely on it unless they had reason to believe it was false. As the Court of Appeal observed, “The United States Supreme Court has consistently held that hearsay information will support issuance of a search warrant…. Indeed, the usual search warrant, based on a reliable police informer’s or citizen-informant’s information, is necessarily founded upon hearsay.”64 On the other hand, information may not be considered if it was inadmissible because it was obtained in violation of the suspect’s constitutional rights; e.g., an illegal search or seizure.65

Mistakes of fact and law

If probable cause was based on information that was subsequently determined to be inaccurate or false, the information may nevertheless be considered if the officers reasonably believed it was true. As the Court of Appeal put it, “If the officer’s belief is reasonable, it matters not that it turns out to be mistaken.”66 Or, in the words of the Supreme Court, “[W]hat is generally demanded of the many factual determinations that must regularly be made by agents of the government is not that they always be correct, but that they always be reasonable.”67

The courts are not, however, so forgiving with mistakes of law. This is because officers are expected to know the laws they enforce and the laws that govern criminal investigations. Consequently, information will not be considered if it resulted from such a mistake, even if the mistake was made in good faith.68 As the California Supreme Court explained, “Courts on strong policy grounds have generally refused to excuse a police officer’s mistake of law.”69 Or, as the Ninth Circuit put it, “If an officer simply does not know the law and makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable.”70

 

References

  1. Ornelas v. United States (1996) 517 U.S. 690, 695.
  2. Hanson v. Dane County (7th Cir. 2010) 608 F.3d 335. 338.
  3. Ornelas v. United States (1996) 517 U.S. 690, 695.
  4. United States v. Arvizu (2002) 534 U.S. 266, 274 [“abstract”]; United States v. Cortez (1981) 449 U.S. 411, 417 [“elusive”].
  5. U.S. v. Jones (1st Cir. 2012) 700 F.3d 615, 621.
  6. See United States v. Sokolow (1989) 490 U.S. 1, 7; United States v. Arvizu (2002) 534 U.S. 266, 274; Ker v. California (1963) 374 U.S. 23, 33; In re Rafael V. (1982) 132 Cal.App.3d 977, 982; In re Louis F. (1978) 85 Cal.App.3d 611, 616.
  7. Alabama v. White (1990) 496 U.S. 325, 330.
  8. See Illinois v. Gates (1983) 462 U.S. 213, 231 “In dealing with probable cause, as the very name implies, we deal with probabilities.”].
  9. See Texas v. Brown (1983) 460 U.S. 730, 742; Illinois v. Gates (1983) 462 U.S. 213, 232.
  10. See Maryland v. Pringle (2003) 540 U.S. 366, 371.
  11. U.S. v. Ludwig (10th Cir. 2011) 641 F.3d 1243, 1251.
  12. Texas v. Brown (1983) 460 U.S. 730, 742. Also see People v. Carrington (2009) 47 Cal.4th 145, 163.
  13. See Illinois v. Gates (1983) 462 U.S. 213, 238; Safford Unified School District v. Redding (2009) 557 U.S. 364, 371.
  14. See U.S. v. Melvin (1st Cir. 1979) 596 F.2d 492, 495 [“appellant reads the phrase ‘probable cause’ with emphasis on the word ‘probable’ and would define it mathematically to mean more likely than not or by a preponderance of the evidence. This reading is incorrect.”]; People v. Alcorn (1993) 15 Cal.App.4th 652, 655; U.S. v. Garcia (5th Cir. 1999) 179 F.3d 265, 269.
  15. Illinois v. Wardlow (2000) 528 U.S. 119, 123. Also see United States v. Arvizu (2002) 534 U.S. 266, 274.
  16. Safford Unified School District v. Redding (2009) 557 U.S. 364, 371.
  17. United States v. Arvizu (2002) 534 U.S. 266, 277.
  18. People v. Brown (1990) 216 Cal.App.3d 1442, 1449 [edited].
  19. In re Tony C. (1978) 21 Cal.3d 888, 894. Also see United States v. Arvizu (2002) 534 U.S. 266, 277.
  20. U.S. v. Pontoo (1st Cir. 2011) 666 F.3d 20, 27. Also see Illinois v. Gates (1983) 462 U.S. 213, 239.
  21. Terry v. Ohio (1968) 392 U.S. 1, 21, fn.18.
  22. United States v. Arvizu (2002) 534 U.S. 266, 274.
  23. U.S. v. Edwards (5th Cir. 1978) 577 F.2d 883, 895. Also see U.S. v. Valdes-Vega (9th Cir. 2013) 739 F.3d 1074.
  24. (1982) 127 Cal.App.3d 751, 767.
  25. (2003) 540 U.S. 366. Also see Massachusetts v. Upton (1984) 466 U.S. 727, 734 [“The informant’s story and the surrounding facts possessed an internal coherence that gave weight to the whole.”].
  26. Ornelas v. United States (1996) 517 U.S. 690, 696.
  27. Illinois v. Gates (1983) 462 U.S. 213, 231. Also see United States v. Cortez (1981) 449 U.S. 411, 418.
  28. See United States v. Sokolow (1989) 490 U.S. 1, 9 [“Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion.”]; People v. Glenos (1992) 7 Cal.App.4th 1201, 1207; U.S. v. Ruidiaz (1st Cir. 2008) 529 F.3d 25, 30 [“a fact that is innocuous in itself may in combination with other innocuous facts take on added significance”].
  29. Safford Unified School District v. Redding (2009) 557 U.S. 364, 371.
  30. (1984) 466 U.S. 727, 731-32.
  31. People v. Juarez (1973) 35 Cal.App.3d 631, 636.
  32. (1983) 462 U.S. 213.
  33. Ker v. California (1963) 374 U.S. 23, 26. Also see People v. Pranke (1970) 12 Cal.App.3d 935, 940 [“when such remarkable coincidences coalesce, they are sufficient to warrant a prudent man in believing that the defendant has committed an offense”]; U.S.v. Abdus-Price (D.C. Cir. 2008) 518 F.3d 926, 930 [a “confluence” of factors]; U.S. v. Carney (6th Cir. 2012) 675 F.3d 1007 [“interweaving connections”].
  34. People v. Hillery (1967) 65 Cal.2d 795, 804.
  35. People v. Spears (1991) 228 Cal.App.3d 1.
  36. See Chambers v. Maroney (1970) 399 U.S. 42, 46-47; People v. Adams (1985) 175 Cal.App.3d 855, 861; People v. Anthony (1970)7 Cal.App.3d 751, 763.
  37. See People v. Hill (2001) 89 Cal.App.4th 48, 55; People v. Soun (1995) 34 Cal.App.4th 1499, 1524-25; People v. Watson (1970)12 Cal.App.3d 130, 134-35; People v. Davis (1969) 2 Cal.App.3d 230, 237; People v. Huff (1978) 83 Cal.App.3d 549, 557; In re Dung T. (1984) 160 Cal.App.3d 697, 712-13; People v. Flores (1974) 12 Cal.3d 85, 91; People v. Jones (1981) 126 Cal.App.3d 308, 313-14; People v. Moore (1975) 51 Cal.App.3d 610, 617; People v. Adams (1985) 175 Cal.App.3d 855, 861; People v. Orozco (1981) 114 Cal.App.3d 435, 445.
  38. See People v. Bowen (1987) 195 Cal.App.3d 269, 274; In re Lynette G. (1976) 54 CA3 1087, 1092; In re Carlos M. (1990) 220 CA3 372, 382 [“[W]here, as here, a crime is known to have involved multiple suspects, some of whom are specifically described and others whose descriptions are generalized, a defendant’s proximity to a specifically described suspect, shortly after and near the site of the crime, provides reasonable grounds to detain for investigation a defendant who otherwise fits certain general descriptions.”].
  39. People v. Atmore (1970) 13 Cal.App.3d 244, 246.
  40. People v. Fields (1984) 159 Cal.App.3d 555, 564; People v. Turner (1994) 8 Cal.4th 137, 186; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1005.
  41. People v. Hagen (1970) 6 Cal.App.3d 35, 43; People v. Morgan (1989) 207 Cal.App.3d 1384, 1389; People v. Anthony (1970) 7Cal.App.3d 751, 763; People v. Rico (1979) 97 Cal.App.3d 124, 129.
  42. People v. Soun (1995) 34 Cal.App.4th 1499, 1524. Also see People v. Brian A. (1985) 173 Cal.App.3d 1168, 1174 [“Where there were two perpetrators and an officer stops two suspects who match the descriptions he has been given, there is much greater basis to find sufficient probable cause for arrest. The probability of there being other groups of persons with the same combination of physical characteristics, clothing, and trappings is very slight.”]; People v. Britton (2001) 91 Cal.App.4th 1112, 1118-19 [“This evasive conduct by two people instead of just one person, we believe, bolsters the reasonableness of the suspicion”]. Compare In re Dung T. (1984) 160 Cal.App.3d 697, 713.
  43. In re Brian A. (1985) 173 Cal.App.3d 1168, 1174
  44. People v. Joines (1970) 11 Cal.App.3d 259, 264. Also see P v. Hill (2001) 89 CA4 48, 55 [medallion and scar].
  45. U.S. v. Abdus-Price (D.C. Cir. 2008) 518 F.3d 926, 930-31. Also see P v. Orozco (1981) 114 CA3 435, 440 [a “cream, vinyl top over a cream colored vehicle”]; P v. Flores (1974) 12 C3 85, 92 [a “unique” paint job].
  46. U.S. v. Jackson (2nd Cir. 2004) 368 F.3d 59, 64.
  47. See United States v. Cortez (1981) 449 U.S. 411, 418; People v. Ledesma (2003) 106 Cal.App.4th 857, 866; In re Frank V. (1991) 233 Cal.App.3d 1232, 1240-41; U.S. v. Lopez-Soto (9th Cir. 2000) 205 F.3d 1101, 1105 [“An officer is entitled to rely on his training and experience in drawing inferences from the facts he observes, but those inferences must also be grounded in objective facts and be capable of rational explanation.”].
  48. Illinois v. Gates (1983) 462 U.S. 213, 232.
  49. (2002) 534 U.S. 266, 273.
  50. (1995) 34 Cal.App.4th 1499. Also see Maryland v. Pringle (2003) 540 U.S. 366, 371-72 [it was reasonable to believe that all three occupants of a vehicle possessed five baggies of cocaine that were behind the back-seat armrest because they were stopped at 3:16 A.M., there was $763 in rolled-up cash in the glove box, and none of the men offered “any information with respect to the ownership of the cocaine or the money”]; People v. Loudermilk (1987) 195 Cal.App.3d 996, 1005; People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 712-13.
  51. (2010) 47 Cal.4th 145.
  52. U.S. v. Thomas (9th Cir. 2000) 211 F.3d 1186, 1192.
  53. Ibid. Also see U.S. v. Cash (10th Cir. 2013) 733 F.3d 1264, 1274 [reasonable suspicion “must be based on something more than an inchoate and unparticularized suspicion or hunch”].
  54. See Illinois v. Gates (1983) 462 U.S. 213, 239 [a “wholly conclusory statement” is irrelevant]; People v. Leonard (1996) 50 Cal.App.4th 878, 883 [“Warrants must be issued on the basis of facts, not beliefs or legal conclusions.”]; U.S. v. Garcia-Villalba (9th Cir. 2009) 585 F.3d 1223, 1234; Gentry v. Sevier (7th Cir. 2010) 597 F.3d 838, 845 [“The officer was acting solely upon a general report of a ‘suspicious person,’ which did not provide any articulable facts that would suggest the person was committing a crime or was armed.”].
  55. (9th Cir. 2013) 725 F.3d 1076.
  56. See Ker v. California (1963) 374 U.S. 23, 40, fn.12 [“It goes without saying that in determining the existence of probable cause we may concern ourselves only with what the officers had reason to believe at the time of their entry.” Edited.]; Maryland v. Garrison (1987) 480 U.S. 79, 85 [“But we must judge the constitutionality of [the officers’] conduct in light of the information available to them at the time they acted.”]; Dyke v. Taylor Implement Mfg. Co. (1968) 391 U.S. 216, 222 [officer “had not been told that Harris and Ellis had identified the car from which shots were fired as a 1960 or 1961 Dodge.”]; People v. Adams (1985) 175 Cal.App.3d 855, 862 [“warrantless arrest or search cannot be justified by facts of which the officer was wholly unaware at the time”]; People v. Superior Court (Haflich) (1986) 180 Cal.App.3d 759. 766 [“The issue of probable cause depends on the facts known to the officer prior to the search.”]; John v. City of El Monte (9th Cir. 2008) 515 F.3d 936, 940 [“The determination whether there was probable cause is based upon the information the officer had at the time of making the arrest.”]; U.S. v. Ellis (7th Cir. 2007) 499 F.3d 686, 690 [“As there was no communication from Officers Chu and McNeil at the front door to [Officer] Lopez at the side door, it was improper to imputer their knowledge to Lopez.”].
  57. People v. Gale (1973) 9 Cal.3d 788, 795.
  58. See Whiteley v. Warden (1971) 401 U.S. 560, 568; People v. Soun (1995) 34 Cal.App.4th 1499, 1521; U.S. v. Ramirez (9th Cir. 2007) 473 F.3d 1026, 1037
  59. United States v. Hensley (1985) 469 U.S. 221, 232.
  60. (6th Cir. 2012) 687 F.3d 754, 768.
  61. U.S. v. Lyons (6th Cir. 2012) 687 F.3d 754, 768.
  62. See United States v. Hensley (1985) 469 U.S. 221, 232. Also see People v. Madden (1970) 2 Cal.3d 1017.
  63. See United States v. Ventresca (1965) 380 U.S. 102, 108; People v. Navarro (2006) 138 Cal.App.4th 146, 147.
  64. People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463, 472.
  65. See Lozoya v. Superior Court (1987) 189 Cal.App.3d 1332, 1340; U.S. v. Barajas-Avalos (9th Cir. 2004) 377 F.3d 1040, 1054.
  66. Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 134. Also see Hill v. California (1971) 401 U.S. 797, 802.
  67. Illinois v. Rodriguez (1990) 497 U.S. 177, 185. Edited.
  68. See People v. Reyes (2011) 196 Cal.App.4th 856, 863; People v. Cox (2008) 168 Cal.App.4th 702, 710.
  69. People v. Teresinski (1982) 30 Cal.3d 822, 831.
  70. U.S. v. Mariscal (9th Cir. 2002) 285 F.3d 1127, 113
  71. source

 

 

 

 

 

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S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

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Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

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At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

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Please take time to learn new UPCOMING 

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

 

 

]]> Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment https://goodshepherdmedia.net/dwayne-furlow-v-jon-belmar-police-warrant-immunity-fail-4th-amendment/ Thu, 02 Mar 2023 08:58:45 +0000 https://goodshepherdmedia.net/?p=12247 Dwayne Furlow v. Jon Belmar, No. 21-2640 (8th Cir. 2022)

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment

Officer NOT entitled to qualified immunity Warrant issued by biased police without probable cause, the need for a neutral magistrate to issue a warrant based on actual probable cause.

Opinion Summary

The St. Louis County Police Department (“SLCPD”) in Missouri utilizes what it calls a “Wanteds System.” This system allows officers to issue electronic notices (“Wanteds”) authorizing any other officer to seize a person and take him into custody for questioning without any review by a neutral magistrate before issuance. The Wanteds may pend for days, months, or, in some cases, indefinitely.

The Eighth Circuit affirmed the district court’s grant of qualified immunity to Officers and its dismissal of the municipal liability claim and Count Three. The court reversed the district court’s grant of qualified immunity to the Detective. The court explained that the Wanteds System is broad enough to encompass situations that do not violate the Constitution, including those involving an arrest immediately after an officer has entered a wanted. The court wrote that Plaintiffs’ facial challenge to the Wanteds System fails. Further, the court explained that the SLCPD Wanteds System, although fraught with the risk of violating the Constitution in certain circumstances and/or the danger of evidence being suppressed due to an invalid arrest, is not facially unconstitutional. The burden is then on Plaintiffs to show a persistent pattern of unconstitutional misconduct. The court concluded that the evidence in the record does not show a persistent pattern of unconstitutional arrests so pervasive that it can be said to constitute custom or usage with the force of law. Nor do the proposed classes describe a group of individuals who demonstrate that such a custom or practice exists. The district court did not err in dismissing the Plaintiffs’ municipal liability claim.

Court Description: [Erickson, Author, with Shepherd and Stras, Circuit Judges] Civil case – Civil rights. In this challenge to St. Louis County Missouri’s system allowing police officers to issue electronic “wanted” notices authorizing any other officer to seize a person and take him into custody for questioning without any review by a neutral magistrate before issuance, the district court granted the defendants’ motion for summary judgment and denied the plaintiffs’ motion for class certification. Plaintiffs, who were arrested on wanteds, appeal. Held: Because circumstances may exist under which the Wanteds System is constitutional, plaintiff’s facial challenge to the system fails; defendant officers Partin and Walsh were entitled to qualified immunity for plaintiff’s arrest because there was doubt that the officers’ actions violated clearly established law; however, with respect to the actions of defendant Clements, even a minimal investigation on her part would have shown that any probable cause for the arrest had vanished, and she was not entitled to qualified immunity; defendant Walsh was entitled to qualified immunity for the arrest of plaintiff Furlow because there was arguable probable cause he had committed a domestic assault; the evidence does not show a persistent pattern of unconstitutional arrests so pervasive that it can be said to constitute a custom or usage with the force of law, and the district court did not err in dismissing the plaintiffs’ municipal liability claim; the district court did not err in dismissing plaintiffs’ substantive due process claim where plaintiffs stated a Fourth Amendment claim; on remand, the district court can reconsider whether class certification is appropriate in light of this decision. Judge Shepherd, concurring in part and dissenting in part. Judge Stras, concurring in part and concurring in the judgment.

]]> What is a Due Process Violation? https://goodshepherdmedia.net/what-is-abuse-of-due-process/ Mon, 10 Oct 2022 19:13:06 +0000 https://goodshepherdmedia.net/?p=1829

What is a Due Process Violation?

it violates your Constitutional Rights afforded to you in the following amendments

Due Process Introduction

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures. Most of this essay concerns that promise. We should briefly note, however, three other uses that these words have had in American constitutional law.

Incorporation The Fifth Amendment’s reference to “due process” is only one of many promises of protection the Bill of Rights gives citizens against the federal government. Originally these promises had no application at all against the states (see Barron v City of Baltimore (1833)). However, this attitude faded in Chicago, Burlington & Quincy Railroad Company v. City of Chicago (1897), when the court incorporated the Fifth Amendment’s Takings Clause. In the the middle of the Twentieth Century, a series of Supreme Court decisions found that the Due Process Clause incorporated” most of the important elements of the Bill of Rights and made them applicable to the states. If a Bill of Rights guarantee is “incorporated” in the “due process” requirement of the Fourteenth Amendment, state and federal obligations are exactly the same.

Substantive due process The words “due process” suggest a concern with procedure rather than substance, and that is how many–such as Justice Clarence Thomas, who wrote “the Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness”–understand the Due Process Clause. However, others believe that the Due Process Clause does include protections of substantive due process–such as Justice Stephen J. Field, who, in a dissenting opinion to the Slaughterhouse Cases wrote that “the Due Process Clause protected individuals from state legislation that infringed upon their “privileges and immunities” under the federal Constitution. Field’s dissenting opinion is often seen as an important step toward the modern doctrine of substantive due process, a theory that the Court has developed to defend rights that are not mentioned in the Constitution.” Substantive due process has been interpreted to include things such as the right to work in an ordinary kind of job, marry, and to raise one’s children as a parent. In Lochner v New York (1905), the Supreme Court found unconstitutional a New York law regulating the working hours of bakers, ruling that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. Substantive due process is still invoked in cases today, but not without criticism (See this Stanford Law Review article to see substantive due process as applied to contemporary issues). The promise of legality and fair procedure Historically, the clause reflects the Magna Carta of Great Britain, King John’s thirteenth century promise to his noblemen that he would act only in accordance with law (“legality”) and that all would receive the ordinary processes (procedures) of law. It also echoes Great Britain’s Seventeenth Century struggles for political and legal regularity, and the American colonies’ strong insistence during the pre-Revolutionary period on observance of regular legal order. The requirement that government function in accordance with law is, in itself, ample basis for understanding the stress given these words. A commitment to legality is at the heart of all advanced legal systems, and the Due Process Clause often thought to embody that commitment.

The clause also promises that before depriving a citizen of life, liberty or property, government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. Suppose, for example, state law gives students a right to a public education, but doesn’t say anything about discipline.

Before the state could take that right away from a student, by expelling her for misbehavior, it would have to provide fair procedures, i.e. “due process.” How can we know whether process is due  what counts as a “deprivation” of “life, liberty or property”), when it is due, and what procedures have to be followed (what process is “due” in those cases)? If “due process” refers chiefly to procedural subjects, it says very little about these questions. Courts unwilling to accept legislative judgments have to find answers somewhere else. The Supreme Court’s struggles over how to find these answers echo its interpretational controversies over the years, and reflect the changes in the general nature of the relationship between citizens and government.

In the Nineteenth Century government was relatively simple, and its actions relatively limited. Most of the time it sought to deprive its citizens of life, liberty or property it did so through criminal law, for which the Bill of Rights explicitly stated quite a few procedures that had to be followed (like the right to a jury trial) — rights that were well understood by lawyers and courts operating in the long traditions of English common law. Occasionally it might act in other ways, for example in assessing taxes. In Bi-Metallic Investment Co. v. State Board of Equalization (1915), the Supreme Court held that only politics (the citizen’s “power, immediate or remote, over those who make the rule”) controlled the state’s action setting the level of taxes; but if the dispute was about a taxpayer’s individual liability, not a general question, the taxpayer had a right to some kind of a hearing (“the right to support his allegations by arguments however brief and, if need be, by proof however informal”). This left the state a lot of room to say what procedures it would provide, but did not permit it to deny them altogether.

Distinguishing Due Process

Bi-Metallic established one important distinction: the Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds.” Thus, the due process clause doesn’t govern how a state sets the rules for student discipline in its high schools; but it does govern how that state applies those rules to individual students who are thought to have violated them — even if in some cases (say, cheating on a state-wide examination) a large number of students were allegedly involved.

Even when an individual is unmistakably acted against on individual grounds, there can be a question whether the state has “deprive[d]” her of “life, liberty or property.” The first thing to notice here is that there must be state action. Accordingly, the Due Process Clause would not apply to a private school taking discipline against one of its students (although that school will probably want to follow similar principles for other reasons).

Whether state action against an individual was a deprivation of life, liberty or property was initially resolved by a distinction between “rights” and “privileges.” Process was due if rights were involved, but the state could act as it pleased in relation to privileges. But as modern society developed, it became harder to tell the two apart (ex: whether driver’s licenses, government jobs, and welfare enrollment are “rights” or a “privilege.” An initial reaction to the increasing dependence of citizens on their government was to look at the seriousness of the impact of government action on an individual, without asking about the nature of the relationship affected.

Process was due before the government could take an action that affected a citizen in a grave way.

In the early 1970s, however, many scholars accepted that “life, liberty or property” was directly affected by state action, and wanted these concepts to be broadly interpreted. Two Supreme Court cases involved teachers at state colleges whose contracts of employment had not been renewed as they expected, because of some political positions they had taken. Were they entitled to a hearing before they could be treated in this way? Previously, astate job was a “privilege” and the answer to this question was an emphatic “No!” Now, the Court decided that whether either of the two teachers had “property” would depend in each instance on whether persons in their position, under state law, held some form of tenure. One teacher had just been on a short term contract; because he served “at will” — without any state law claim or expectation to continuation — he had no “entitlement” once his contract expired. The other teacher worked under a longer-term arrangement that school officials seemed to have encouraged him to regard as a continuing one. This could create an “entitlement,” the Court said; the expectation need not be based on a statute, and an established custom of treating instructors who had taught for X years as having tenure could be shown. While, thus, some law-based relationship or expectation of continuation had to be shown before a federal court would say that process was “due,” constitutional “property” was no longer just what the common aw called “property”; it now included any legal relationship with the state that state law regarded as in some sense an “entitlement” of the citizen.

Licenses, government jobs protected by civil service, or places on the welfare rolls were all defined by state laws as relations the citizen was entitled to keep until there was some reason to take them away, and therefore process was due before they could be taken away. This restated the formal “right/privilege” idea, but did so in a way that recognized the new dependency of citizens on relations with government, the “new property” as one scholar influentially called it.

When process is due

In its early decisions, the Supreme Court seemed to indicate that when only property rights were at stake (and particularly if there was some demonstrable urgency for public action) necessary hearings could be postponed to follow provisional, even irreversible, government action. This presumption changed in 1970 with the decision in Goldberg v. Kelly, a case arising out of a state-administered welfare program. The Court found that before a state terminates a welfare recipient’s benefits, the state must provide a full hearing before a hearing officer, finding that the Due Process Clause required such a hearing.

What procedures are due

Just as cases have interpreted when to apply due process, others have determined the sorts of procedures which are constitutionally due. This is a question that has to be answered for criminal trials (where the Bill of Rights provides many explicit answers), for civil trials (where the long history of English practice provides some landmarks), and for administrative proceedings, which did not appear on the legal landscape until a century or so after the Due Process Clause was first adopted. Because there are the fewest landmarks, the administrative cases present the hardest issues, and these are the ones we will discuss.

The Goldberg Court answered this question by holding that the state must provide a hearing before an impartial judicial officer, the right to an attorney’s help, the right to present evidence and argument orally, the chance to examine all materials that would be relied on or to confront and cross-examine adverse witnesses, or a decision limited to the record thus made and explained in an opinion. The Court’s basis for this elaborate holding seems to have some roots in the incorporation doctrine.

Many argued that the Goldberg standards were too broad, and in subsequent years, the Supreme Court adopted a more discriminating approach. Process was “due” to the student suspended for ten days, as to the doctor deprived of his license to practice medicine or the person accused of being a security risk; yet the difference in seriousness of the outcomes, of the charges, and of the institutions involved made it clear there could be no list of procedures that were always “due.” What the Constitution required would inevitably be dependent on the situation. What process is “due” is a question to which there cannot be a single answer.

A successor case to Goldberg, Mathews v. Eldridge, tried instead to define a method by which due process questions could be successfully presented by lawyers and answered by courts. The  approach it defined has remained the Court’s preferred method for resolving questions over what process is due. Mathews attempted to define how judges should ask about constitutionally required procedures. The Court said three factors had to be analyzed:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Using these factors, the Court first found the private interest here less significant than in Goldberg. A person who is arguably disabled but provisionally denied disability benefits, it said, is more  likely to be able to find other “potential sources of temporary income” than a person who is arguably impoverished but provisionally denied welfare assistance.

Respecting the second, it found the risk of error in using written procedures for the initial judgment to be low, and unlikely to be significantly reduced by adding oral or confrontational procedures of the Goldberg variety. It reasoned that disputes over eligibility for disability insurance typically concern one’s medical condition, which could be decided, at least provisionally, on the basis of documentary submissions; it was impressed that Eldridge had full access to the agency’s files, and the opportunity to submit in writing any further material he wished. Finally, the Court now attached more importance than the Goldberg Court had to the government’s claims for efficiency. In particular, the Court assumed (as the Goldberg Court had not) that “resources available for any particular program of social welfare are not unlimited.” Thus additional administrative costs for suspension hearings and payments while those hearings were awaiting resolution to persons ultimately found undeserving of benefits would subtract from the amounts available to pay benefits for those undoubtedly eligible to participate in the program. The Court also gave some weight to the “good-faith judgments” of the plan administrators what appropriate consideration of the claims of applicants would entail.

Matthews thus reorients the inquiry in a number of important respects. First, it emphasizes the variability of procedural requirements. Rather than create a standard list of procedures that constitute the procedure that is “due,” the opinion emphasizes that each setting or program invites its own assessment. About the only general statement that can be made is that persons holding interests protected by the due process clause are entitled to “some kind of hearing.” Just what the elements of that hearing might be, however, depends on the concrete circumstances of the particular program at issue. Second, that assessment is to be made concretely and holistically. It is not a matter of approving this or that particular element of a procedural matrix in isolation, but of assessing the suitability of the ensemble in context. Third, and particularly important in its implications for litigation seeking procedural change, the assessment is to be made at the level of program operation, rather than in terms of the particular needs of the particular litigants involved in the matter before the Court. Cases that are pressed to appellate courts often are characterized by individual facts that make an unusually strong appeal for proceduralization.

Indeed, one can often say that they are chosen for that appeal by the lawyers, when the lawsuit is supported by one of the many American organizations that seeks to use the courts to help establish their view of sound social policy.

Finally, and to similar effect, the second of the stated tests places on the party challenging the existing procedures the burden not only of demonstrating their insufficiency, but also of showing that some specific substitute or additional procedure will work a concrete improvement justifying its additional cost.

Thus, it is inadequate merely to criticize. The litigant claiming procedural insufficiency must be prepared with a substitute program that can itself be justified.

The Mathews approach is most successful when it is viewed as a set of instructions to attorneys involved in litigation concerning procedural issues. Attorneys now know how to make a persuasive showing on a procedural “due process” claim, and the probable effect of the approach is to discourage litigation drawing its motive force from the narrow (even if compelling) circumstances of a particular individual’s position.

The hard problem for the courts in the Mathews approach, which may be unavoidable, is suggested by the absence of fixed doctrine about the content of “due process” and by the very breadth of the inquiry required to establish its demands in a particular context. A judge has few reference points to begin with, and must decide on the basis of considerations (such as the nature of a government program or the probable impact of a procedural requirement) that are very hard to develop in a trial.

While there is no definitive list of the “required procedures” that due process requires, Judge Henry Friendly generated a list that remains highly influential, as to both content and relative priority:

  1. An unbiased tribunal.
  2. Notice of the proposed action and the grounds asserted for it.
  3. Opportunity to present reasons why the proposed action should not be taken.
  4. The right to present evidence, including the right to call witnesses.
  5. The right to know opposing evidence.
  6. The right to cross-examine adverse witnesses.
  7. A decision based exclusively on the evidence presented.
  8. Opportunity to be represented by counsel.
  9. Requirement that the tribunal prepare a record of the evidence presented.
  10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

This is not a list of procedures which are required to prove due process, but rather a list of the kinds of procedures that might be claimed in a “due process” argument, roughly in order of their  perceived importance.

What Does the 4th Amendment Mean?

The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government.  The Fourth Amendment, however, is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.

The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government.
Home

Searches and seizures inside a home without a warrant are presumptively unreasonable.
Payton v. New York, 445 U.S. 573 (1980).

However, there are some exceptions. A warrantless search may be lawful:

If an officer is given consent to search; Davis v. United States, 328 U.S. 582 (1946)
If the search is incident to a lawful arrest; United States v. Robinson, 414 U.S. 218 (1973)
If there is probable cause to search and exigent circumstances; Payton v. New York, 445 U.S. 573 (1980)
If the items are in plain view; Maryland v. Macon, 472 U.S. 463 (1985).

A Person

When an officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer’s suspicions.
Terry v. Ohio, 392 U.S. 1 (1968)
Minnesota v. Dickerson, 508 U.S. 366 (1993)

Schools

School officials need not obtain a warrant before searching a student who is under their authority; rather, a search of a student need only be reasonable under all the circumstances.
New Jersey v. TLO, 469 U.S. 325 (1985)

Cars

Where there is probable cause to believe that a vehicle contains evidence of a criminal activity, an officer may lawfully search any area of the vehicle in which the evidence might be found.
Arizona v. Gant, 129 S. Ct. 1710 (2009),

An officer may conduct a traffic stop if he has reasonable suspicion that a traffic violation has occurred or that criminal activity is afoot.
Berekmer v. McCarty, 468 U.S. 420 (1984),
United States v. Arvizu, 534 U.S. 266 (2002).

An officer may conduct a pat-down of the driver and passengers during a lawful traffic stop; the police need not believe that any occupant of the vehicle is involved in a criminal activity.
Arizona v. Johnson, 555 U.S. 323 (2009).

The use of a narcotics detection dog to walk around the exterior of a car subject to a valid traffic stop does not require reasonable, explainable suspicion.
Illinois v. Cabales, 543 U.S. 405 (2005).

Special law enforcement concerns will sometimes justify highway stops without any individualized suspicion.
Illinois v. Lidster, 540 U.S. 419 (2004).

An officer at an international border may conduct routine stops and searches.
United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

A state may use highway sobriety checkpoints for the purpose of combating drunk driving.
Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

A state may set up highway checkpoints where the stops are brief and seek voluntary cooperation in the investigation of a recent crime that has occurred on that highway.
Illinois v. Lidster, 540 U.S. 419 (2004).

However, a state may not use a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics.
City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

Due process in criminal cases: The 4th Amendment

In an earlier post we introduced the subject of how the concept of due process interacts with the criminal justice system. Although not all of the amendments that comprise the Bill of Rights to the U.S. Constitution are related to procedural due process, the 4th, 5th, 6th and 8th Amendments are directly connected to it. We will briefly cover each of these amendments going forward, starting with the 4th Amendment.

 

The 4th Amendment safeguards against unreasonable searches and seizures of persons and property, and except for situations that courts have carved out as exceptions (see below) requires the use of search and arrest warrants based on probable cause. Evidence gathered by the police in violation of the 4th Amendment cannot be used against you; courts have referred to this exclusion as the “fruit of the poisonous tree” rule.

Characteristics of the 4th Amendment include:

  • As with due process rights overall, it protects against government action and not actions of private individuals.
  • It is not a prohibition on all searches and seizures. To qualify for its protection, you must have a reasonable expectation of privacy in the place or the item that the police seek to seize.
  • What constitutes a “search or seizure” depends on the immediate circumstances. For example, if a police officer stops you on the street and starts asking you questions, that is not a search or a seizure (and conversely you are not obligated to answer any of those questions). But if the officer seeks to search your clothing or personal effects without a warrant, then he must have at least a reasonable suspicion in advance that you have been engaged in some criminal activity.
  • If a police officer has probable cause to believe that you have committed a crime, then he can arrest you without having to obtain an arrest warrant first. Or, if you have committed a misdemeanor crime in the officer’s presence no arrest warrant is needed. But unless the officer is in “hot pursuit” of someone who has committed a felony and is trying to flee, any arrest in a private place will ordinarily require the issuance of an arrest warrant.

 

Torres v. Madrid (2021)

Author: John Roberts

The application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.

Kansas v. Glover (2020)

Author: Clarence Thomas

When an officer lacks information negating an inference that a vehicle is driven by its owner, an investigative traffic stop made after running a vehicle’s license plate and learning that the registered owner’s driver’s license has been revoked is reasonable.

Collins v. Virginia (2018)

Author: Sonia Sotomayor

The automobile exception does not permit the warrantless entry of a home or its curtilage to search a vehicle therein.

Carpenter v. U.S. (2018)

Author: John Roberts

The government’s acquisition of an individual’s cell-site records was a Fourth Amendment search.

Utah v. Strieff (2016)

Author: Clarence Thomas

The discovery of a valid, pre-existing, and untainted arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest.

Rodriguez v. U.S. (2015)

Author: Ruth Bader Ginsburg

Without reasonable suspicion, police extension of a traffic stop to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.

Fernandez v. California (2014)

Author: Samuel A. Alito, Jr.

The holding in Randolph is limited to situations in which the objecting occupant is physically present.

Heien v. North Carolina (2014)

Author: John Roberts

When an officer’s mistake of law was reasonable, there was a reasonable suspicion justifying a stop under the Fourth Amendment.

Riley v. California (2014)

Author: John Roberts

Without a warrant, the police generally may not search digital information on a cell phone seized from an individual who has been arrested.

Florida v. Jardines (2013)

Author: Antonin Scalia

Using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a search within the meaning of the Fourth Amendment.

Maryland v. King (2013)

Author: Anthony Kennedy

When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

U.S. v. Jones (2012)

Author: Antonin Scalia

The government’s attachment of a GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

Davis v. U.S. (2011)

Author: Samuel A. Alito, Jr.

Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.

Kentucky v. King (2011)

Author: Samuel A. Alito, Jr.

The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.

Arizona v. Johnson (2009)

Author: Ruth Bader Ginsburg

In a traffic stop setting, the first Terry condition (a lawful investigatory stop) is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have cause to believe that any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

Arizona v. Gant (2009)

Author: John Paul Stevens

Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

Safford Unified School District #1 v. Redding (2009)

Author: David Souter

The required knowledge component of reasonable suspicion for a school administrator’s evidence search is that it raise a moderate chance of finding evidence of wrongdoing.

Herring v. U.S. (2009)

Author: John Roberts

When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.

Brendlin v. California (2007)

Author: David Souter

When police make a traffic stop, a passenger in the car (not only the driver) is seized for Fourth Amendment purposes and thus may challenge the stop’s constitutionality.

Scott v. Harris (2007)

Author: Antonin Scalia

When opposing parties tell two different stories, one of which is blatantly contradicted by the record so that no reasonable jury could believe it, a court should not adopt that version of the facts for the purposes of ruling on a motion for summary judgment. Also, a police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.

Georgia v. Randolph (2006)

Author: David Souter

A physically present co-occupant’s stated refusal to permit entry to a residence rendered a warrantless entry and search unreasonable and invalid as to them.

Brigham City v. Stuart (2006)

Author: John Roberts

Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.

Illinois v. Caballes (2005)

Author: John Paul Stevens

A dog sniff conducted during a lawful traffic stop that reveals no information other than the location of a substance that no individual has a right to possess does not violate the Fourth Amendment.

Illinois v. Lidster (2004)

Author: Stephen Breyer

A highway checkpoint where police stopped motorists to ask for information about a recent accident was reasonable under the Fourth Amendment.

Groh v. Ramirez (2004)

Author: John Paul Stevens

When a warrant did not describe the items to be seized, the fact that the application for the warrant adequately described the items did not save the warrant.

Hiibel v. Sixth Judicial District Court of Nevada (2004)

Author: Anthony Kennedy

Terry principles permit a state to require a suspect to disclose their name in the course of a Terry stop.

Thornton v. U.S. (2004)

Author: William Rehnquist

Belton governs even when an officer does not make contact until the person arrested has left the vehicle.

U.S. v. Banks (2003)

Author: David Souter

A 15-to-20-second wait before forcible entry satisfied the Fourth Amendment.

Maryland v. Pringle (2003)

Author: William Rehnquist

To determine whether an officer had probable cause to make an arrest, a court must examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.

U.S. v. Drayton (2002)

Author: Anthony Kennedy

The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches.

Illinois v. McArthur (2001)

Author: Stephen Breyer

Police officers acted reasonably when, with probable cause to believe that a man had hidden marijuana in his home, they prevented that man from entering the home for about two hours while they obtained a search warrant.

Ferguson v. Charleston (2001)

Author: John Paul Stevens

A state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure.

Atwater v. Lago Vista (2001)

Author: David Souter

The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine.

Kyllo v. U.S. (2001)

Author: Antonin Scalia

When the government uses a device that is not in general public use to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment search, and it is presumptively unreasonable without a warrant.

Indianapolis v. Edmond (2000)

Author: Sandra Day O’Connor

A vehicle checkpoint violates the Fourth Amendment when its primary purpose is indistinguishable from the general interest in crime control.

Florida v. J.L. (2000)

Author: Ruth Bader Ginsburg

An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer’s stop and frisk of that person.

Bond v. U.S. (2000)

Author: William Rehnquist

A border patrol agent’s physical manipulation of a bus passenger’s carry-on bag violated the Fourth Amendment proscription against unreasonable searches.

Illinois v. Wardlow (2000)

Author: William Rehnquist

An individual’s presence in a “high crime area”, standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity. However, a location’s characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation.

Wyoming v. Houghton (1999)

Author: Antonin Scalia

Police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.

Knowles v. Iowa (1998)

Author: William Rehnquist

While the authority to conduct a full field search as incident to an arrest was established as a bright line rule under Robinson, that rule should not be extended to a situation in which the concern for officer safety is not present to the same extent, and the concern for destruction or loss of evidence is not present at all.

Richards v. Wisconsin (1997)

Author: John Paul Stevens

A no-knock entry is justified when the police have a reasonable suspicion that knocking and announcing their presence would be dangerous or futile under the circumstances, or that it would inhibit the effective investigation of the crime.

Maryland v. Wilson (1997)

Author: William Rehnquist

An officer making a traffic stop may order passengers to get out of the car pending completion of the stop.

Whren v. U.S. (1996)

Author: Antonin Scalia

The temporary detention of a motorist on probable cause to believe that they have violated the traffic laws does not violate the Fourth Amendment prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist without an additional law enforcement objective.

Ohio v. Robinette (1996)

Author: William Rehnquist

The Fourth Amendment does not require that a lawfully seized defendant be advised that they are free to go before their consent to search will be recognized as voluntary.

Arizona v. Evans (1995)

Author: William Rehnquist

The exclusionary rule does not require the suppression of evidence seized in violation of the Fourth Amendment when the erroneous information resulted from clerical errors of court employees.

Wilson v. Arkansas (1995)

Author: Clarence Thomas

The common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry.

Minnesota v. Dickerson (1993)

Author: Byron White

The police may seize non-threatening contraband detected through the sense of touch during a protective patdown search of the sort permitted by Terry, so long as the search stays within the bounds marked by Terry.

Florida v. Bostick (1991)

Author: Sandra Day O’Connor

There is no per se rule that every encounter on a bus is a seizure. The appropriate test is whether, taking into account all the circumstances surrounding the encounter, a reasonable passenger would feel free to decline the officers’ requests or otherwise terminate the encounter.

California v. Acevedo (1991)

Author: Harry Blackmun

In a search extending only to a container within a vehicle, the police may search the container without a warrant when they have probable cause to believe that it holds contraband or evidence.

California v. Hodari D. (1991)

Author: Antonin Scalia

To constitute a seizure of the person, just as to constitute an arrest, there must be either the application of physical force, however slight, or submission to an officer’s show of authority to restrain the subject’s liberty.

Florida v. Jimeno (1991)

Author: William Rehnquist

A criminal suspect’s Fourth Amendment right to be free from unreasonable searches is not violated when they give police permission to search their car, and the police open a closed container in the car that might reasonably hold the object of the search.

New York v. Harris (1990)

Author: Byron White

When the police have probable cause to arrest a suspect, the exclusionary rule does not bar the use of a statement made by the defendant outside their home, even if the statement is taken after an arrest made in the home in violation of Payton.

Alabama v. White (1990)

Author: Byron White

Factors for determining whether an informant’s tip establishes probable cause are also relevant in the Terry reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard.

Maryland v. Buie (1990)

Author: Byron White

The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer has a reasonable belief based on specific and articulable facts that the area to be swept harbors a person posing a danger to those on the arrest scene.

Michigan Dept. of State Police v. Sitz (1990)

Author: William Rehnquist

The use of highway sobriety checkpoints does not violate the Fourth Amendment.

Florida v. Riley (1989)

Author: Byron White

The Fourth Amendment does not require the police traveling in the public airways at an altitude of 400 feet to obtain a warrant to observe what is visible to the naked eye.

California v. Greenwood (1988)

Author: Byron White

The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home.

Murray v. U.S. (1988)

Author: Antonin Scalia

The Fourth Amendment does not require the suppression of evidence initially discovered during police officers’ illegal entry of private premises if the evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry.

Illinois v. Krull (1987)

Author: Harry Blackmun

The Fourth Amendment exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance on a statute authorizing warrantless administrative searches, which is subsequently found to violate the Fourth Amendment.

Arizona v. Hicks (1987)

Author: Antonin Scalia

A truly cursory inspection, which involves merely looking at what is already exposed to view without disturbing it, is not a search for Fourth Amendment purposes and therefore does not even require reasonable suspicion.

Colorado v. Bertine (1987)

Author: William Rehnquist

Reasonable police regulations related to inventory procedures, administered in good faith, satisfy the Fourth Amendment.

Dow Chemical Co. v. U.S. (1986)

Author: Warren Burger

The Fourth Amendment did not prohibit the Environmental Protection Agency from taking, without a warrant, aerial photographs of the defendant’s plant complex from an aircraft lawfully in public navigable airspace.

Tennessee v. Garner (1985)

Author: Byron White

A police officer may not seize an unarmed, non-dangerous suspect by shooting them dead. However, when an officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

New Jersey v. T.L.O. (1985)

Author: Byron White

The Fourth Amendment prohibition on unreasonable searches and seizures applies to searches conducted by public school officials, but the more lenient standard of reasonable suspicion applies.

California v. Carney (1985)

Author: Warren Burger

The two justifications for the vehicle exception to the warrant requirement of the Fourth Amendment come into play when a vehicle is being used on the highways or is capable of such use and is found stationary in a place not regularly used for residential purposes. The vehicle is readily mobile, and there is a reduced expectation of privacy stemming from the pervasive regulation of vehicles capable of traveling on highways.

Winston v. Lee (1984)

Author: William Brennan

The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure to obtain evidence for fairly determining guilt or innocence.

Massachusetts v. Upton (1984)

Author: Per Curiam

Even when no single piece of evidence in an affidavit was conclusive, the pieces fit neatly together and thus supported the magistrate’s determination of probable cause.

Oliver v. U.S. (1984)

Author: Lewis Powell

The government’s intrusion upon open fields is not one of the unreasonable searches proscribed by the Fourth Amendment. No expectation of privacy legitimately attaches to open fields.

U.S. v. Leon (1984)

Author: Byron White

The Fourth Amendment exclusionary rule should not be applied to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.

Segura v. U.S. (1984)

Author: Warren Burger

Securing a dwelling on the basis of probable cause to prevent the destruction or removal of evidence while a search warrant is being sought is not an unreasonable seizure of the dwelling or its contents.

U.S. v. Place (1983)

Author: Sandra Day O’Connor

The investigative procedure of subjecting luggage to a sniff test by a well-trained narcotics detection dog does not constitute a search within the meaning of the Fourth Amendment.

Michigan v. Long (1983)

Author: Sandra Day O’Connor

If a state court decision indicates clearly and expressly that it is based on bona fide separate, adequate, and independent state grounds, the Supreme Court will not review the decision. Also, a search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts that, taken together with the rational inferences from those facts, reasonably warrant the officer to believe that the suspect is dangerous and that the suspect may gain immediate control of weapons.

Illinois v. Gates (1983)

Author: William Rehnquist

The rigid two-pronged test under Aguilar and Spinelli for determining whether an informant’s tip establishes probable cause for issuance of a warrant is abandoned, and the totality of the circumstances approach that traditionally has informed probable cause determinations is substituted in its place.

Illinois v. Lafayette (1983)

Author: Warren Burger

Consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect.

U.S. v. Ross (1982)

Author: John Paul Stevens

Police officers who have legitimately stopped a vehicle and who have probable cause to believe that contraband is concealed somewhere in it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant.

Steagald v. U.S. (1981)

Author: Thurgood Marshall

An arrest warrant, as opposed to a search warrant, is inadequate to protect the Fourth Amendment interests of persons not named in the warrant when their home is searched without their consent and in the absence of exigent circumstances.

New York v. Belton (1981)

Author: Potter Stewart

When a policeman has made a lawful custodial arrest of the occupant of an automobile, they may search the passenger compartment of that automobile as a contemporaneous incident of that arrest. The police may also examine the contents of any containers found within the passenger compartment.

U.S. v. Cortez (1981)

Author: Warren Burger

In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances (the whole picture) must be taken into account. Based upon that whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

Payton v. New York (1980)

Author: John Paul Stevens

The Fourth Amendment prohibits the police from making a warrantless and non-consensual entry into the home of a suspect to make a routine felony arrest.

Rawlings v. Kentucky (1980)

Author: William Rehnquist

When the arrest followed quickly after the search of the defendant’s person, it is not important that the search preceded the arrest, rather than vice versa.

Arkansas v. Sanders (1979)

Author: Lewis Powell

In the absence of exigent circumstances, police are required to obtain a warrant before searching luggage taken from an automobile properly stopped and searched for contraband.

U.S. v. Caceres (1979)

Author: John Paul Stevens

The exclusionary rule does not require that all evidence obtained in violation of regulations concerning electronic eavesdropping be excluded.

Franks v. Delaware (1978)

Author: Harry Blackmun

When a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.

Zurcher v. Stanford Daily (1978)

Author: Byron White

When the state does not seek to seize persons but instead seeks to seize things, there is no apparent basis in the language of the Fourth Amendment for also imposing the requirements for a valid arrest: probable cause to believe that a third party occupying the place to be searched is implicated in the crime. In other words, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found.

U.S. v. Ceccolini (1978)

Author: William Rehnquist

The exclusionary rule should be invoked with much greater reluctance when the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object.

Rakas v. Illinois (1978)

Author: William Rehnquist

A person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of their Fourth Amendment rights infringed.

Andresen v. Maryland (1976)

Author: Harry Blackmun

Although the Fifth Amendment may protect an individual from complying with a subpoena for the production of their personal records in their possession, a seizure of the same materials by law enforcement officers is different because the individual against whom the search is directed is not required to aid in the discovery, production, or authentication of incriminating evidence.

U.S. v. Watson (1976)

Author: Byron White

The cases construing the Fourth Amendment reflect the common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in their presence, as well as for a felony not committed in their presence if there was reasonable ground for making the arrest.

Gerstein v. Pugh (1975)

Author: Lewis Powell

The Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following an arrest.

U.S. v. Edwards (1974)

Author: Byron White

Once an accused has been lawfully arrested and is in custody, the effects in their possession at the place of detention that were subject to search at the time and place of the arrest may lawfully be searched and seized without a warrant even after a substantial time lapse between the arrest and later administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.

Schneckloth v. Bustamonte (1973)

Author: Potter Stewart

When the subject of a search is not in custody, and the state would justify a search on the basis of their consent, the state must demonstrate that the consent was voluntary. Voluntariness is determined from the totality of the surrounding circumstances. While knowledge of a right to refuse consent is a factor to be taken into account, the state need not prove that the person knew that they had a right to withhold consent.

U.S. v. Robinson (1973)

Author: William Rehnquist

In the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment but also a reasonable search under the Fourth Amendment.

Vale v. Louisiana (1970)

Author: Potter Stewart

Only in a few specifically established and well delineated situations may a warrantless search of a dwelling withstand constitutional scrutiny. These include when there was consent to the search, the officers were responding to an emergency, the officers were in hot pursuit of a fleeing felon, or the goods ultimately seized were in the process of destruction or were about to be removed from the jurisdiction.

Chimel v. California (1969)

Author: Potter Stewart

An arresting officer may search the arrestee’s person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and they may search the area within the immediate control of the person arrested, meaning the area from which the person might gain possession of a weapon or destructible evidence.

Spinelli v. U.S. (1969)

Author: John Marshall Harlan II

A tip was inadequate to provide the basis for a finding of probable cause that a crime was being committed when it did not set forth any reason to support the conclusion that the informant was reliable and did not sufficiently state the underlying circumstances from which the informant drew their conclusions or sufficiently detail the defendant’s activities.

Terry v. Ohio (1968)

Author: Earl Warren

When a police officer observes unusual conduct that leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, when he identifies himself as a policeman and makes reasonable inquiries in the course of investigating this behavior, and when nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, the officer is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons that might be used to assault him.

Warden v. Hayden (1967)

Author: William Brennan

The exigencies of a situation in which officers were in pursuit of a suspected armed felon in the house that he had entered only minutes before they arrived permitted their warrantless entry and search. Moreover, the distinction prohibiting seizure of items of only evidential value and allowing seizure of instrumentalities, fruits, or contraband is not required by the Fourth Amendment.

McCray v. Illinois (1967)

Author: Potter Stewart

A state court does not have a duty to require the disclosure of an informer’s identity at a pretrial hearing held for the purpose of determining only the question of probable cause when there was ample evidence in an open and adversary proceeding that the informer was known to the officers to be reliable and that they made the arrest in good faith upon the information that the informer supplied.

Katz v. U.S. (1967)

Author: Potter Stewart

The government’s activities in electronically listening to and recording the defendant’s words violated the privacy on which he justifiably relied while using a telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment.

Schmerber v. California (1966)

Author: William Brennan

The interests in human dignity and privacy that the Fourth Amendment protects forbid any intrusions beyond the body’s surface on the mere chance that desired evidence might be obtained. There must be a clear indication that such evidence will be found.

Aguilar v. Texas (1964)

Author: Arthur Goldberg

Although an affidavit supporting a search warrant may be based on hearsay information, the magistrate must be informed of some of the underlying circumstances on which the person providing the information relied and some of the underlying circumstances from which the affiant concluded that the undisclosed informant was creditable or their information reliable.

Wong Sun v. U.S. (1963)

Author: William Brennan

Statements made by a suspect in his bedroom at the time of his unlawful arrest were the fruit of the agents’ unlawful action and should have been excluded. The narcotics taken from a third party as a result of statements made by the suspect at the time of his arrest were likewise fruits of the unlawful arrest and should not have been admitted. However, when another suspect had been lawfully arraigned and released on his own recognizance after his unlawful arrest and had returned voluntarily several days later when he made an unsigned statement, the connection between his unlawful arrest and the making of that statement was so attenuated that the unsigned statement was not the fruit of the unlawful arrest and was properly admitted.

Mapp v. Ohio (1961)

Author: Tom C. Clark

All evidence obtained by searches and seizures in violation of the federal Constitution is inadmissible in a criminal trial in a state court.

Draper v. U.S. (1959)

Author: Charles Evans Whittaker

Even if the information received by an agent from an informer was hearsay, the agent was legally entitled to consider it in determining whether he had probable cause under the Fourth Amendment and reasonable grounds to believe that the defendant had committed or was committing a violation of the narcotics laws.

Wolf v. Colorado (1949)

Author: Felix Frankfurter

In a prosecution in a state court for a state crime, the Fourteenth Amendment does not forbid the admission of relevant evidence, even though obtained by an unreasonable search and seizure.

Olmstead v. U.S. (1928)

Author: William Howard Taft

Wiretapping was not a search or seizure within the meaning of the Fourth Amendment. (This case was overruled by Katz v. U.S. in 1967.)

Carroll v. U.S. (1925)

Author: William Howard Taft

The Fourth Amendment recognizes a necessary difference between a search for contraband in a store, dwelling, or other structure for the search of which a warrant may readily be obtained, and a search of a ship, wagon, automobile, or other vehicle that may be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

Burdeau v. McDowell (1921)

Author: William Rufus Day

The government may retain for use as evidence in the criminal prosecution of their owner incriminating documents that are turned over to it by private individuals who procured them through a wrongful search without the participation or knowledge of any government official.

Gouled v. U.S. (1921)

Author: John Hessin Clarke

Search warrants may not be used as a means of gaining access to a person’s house or office and papers solely for the purpose of making search to secure evidence to be used against them in a criminal or penal proceeding.

Weeks v. U.S. (1914)

Author: William Rufus Day

The tendency of those executing federal criminal laws to obtain convictions by means of unlawful seizures and enforced confessions in violation of federal rights is not to be sanctioned by the courts that are charged with the support of constitutional rights.

What is the 14th Amendment Due Process Clause?

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fifth Amendment

The Fifth Amendment says to the federal government that no one shall be“deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states.

Amdt5.5.1 Overview of Due Process

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment provides that no person shall be deprived of life, liberty, or property, without due process of law.1 Generally, due process guarantees protect individual rights by limiting the exercise of government power.2 The Supreme Court has held that the Fifth Amendment, which applies to federal government action, provides persons with both procedural and substantive due process guarantees. If the federal government seeks to deprive a person of a protected life, liberty, or property interest, the Fifth Amendment’s Due Process Clause requires that the government first provide certain procedural protections.3 Procedural due process often requires the government to provide a person with notice and an opportunity for a hearing before such a deprivation.4 In addition, the Supreme Court has interpreted the Fifth Amendment’s Due Process Clause to include substantive due process guarantees that protect certain fundamental constitutional rights from federal government interference, regardless of the procedures that the government follows when enforcing the law.5 Substantive due process has generally dealt with specific subject areas, such as liberty of contract, marriage, or privacy.

The Fifth Amendment’s Due Process Clause protects all persons within U.S. territory, including corporations,6 aliens,7 and, presumptively, citizens seeking readmission to the United States.8 However, the states are not entitled to due process protections against the federal government.9 The clause is effective in the District of Columbia10 and in territories that are part of the United States,11 but it does not apply of its own force to unincorporated territories.12 Nor does it reach enemy alien belligerents tried by military tribunals outside the territorial jurisdiction of the United States.13 The Clause restrains Congress in addition to the Executive and Judicial Branches and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by enacting legislation to that effect.14

Due process cases may arise under both the Fifth and Fourteenth Amendments. Both amendments use the same language but have a different history.15 The Supreme Court has construed the Fourteenth Amendment’s Due Process Clause to impose the same due process limitations on the states as the Fifth Amendment does on the federal government.16 Fourteenth Amendment due process case law is therefore relevant to the interpretation of the Fifth Amendment. Except for areas in which the federal government is the actor, much of the Constitution Annotated‘s discussion of due process appears in the Fourteenth Amendment essays.17

Footnotes

  1.  Jump to essay-1U.S. Const. amend. V.
  2.  Jump to essay-2Due Process, Black’s Law Dictionary 610 (10th ed. 2014).
  3.  Jump to essay-3See Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (citing Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961)).
  4.  Jump to essay-4Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 261, 265 (1912).
  5.  Jump to essay-5E.g., Zablocki v. Redhail, 434 U.S. 374, 386–87 (1978) (citing Loving v. Virginia, 388 U. S. 1 (1967)).
  6.  Jump to essay-6Sinking Fund Cases, 99 U.S. 700, 719 (1879).
  7.  Jump to essay-7Wong Wing v. United States, 163 U.S. 228, 238 (1896).
  8.  Jump to essay-8United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927).
  9.  Jump to essay-9South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966).
  10.  Jump to essay-10Wight v. Davidson, 181 U.S. 371, 384 (1901).
  11.  Jump to essay-11Lovato v. New Mexico, 242 U.S. 199, 201 (1916).
  12.  Jump to essay-12Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920).
  13.  Jump to essay-13Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946).
  14.  Jump to essay-14Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856). See also Massachusetts Supreme Judicial Court Chief Justice Lemuel Shaw’s opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857).
  15.  Jump to essay-15French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).
  16.  Jump to essay-16Cf. Arnett v. Kennedy, 416 U.S. 134 (1974); Heiner v. Donnan, 285 U.S. 312, 326 (1932) (The restraint imposed upon legislation by the due process clauses of the two amendments is the same.); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 610 (1936).
  17.  Jump to essay-17See Amdt14.S1.3 Due Process Generally.

Amdt14.S1.3 Due Process Generally

The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states.

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment’s Due Process Clause provides that no state may deprive any person of life, liberty, or property, without due process of law.1 The Supreme Court has applied the Clause in two main contexts. First, the Court has construed the Clause to provide protections that are similar to those of the Fifth Amendment’s Due Process Clause except that, while the Fifth Amendment applies to federal government actions, the Fourteenth Amendment binds the states.2 The Fourteenth Amendment’s Due Process Clause guarantees procedural due process, meaning that government actors must follow certain procedures before they may deprive a person of a protected life, liberty, or property interest.3 The Court has also construed the Clause to protect substantive due process, holding that there are certain fundamental rights that the government may not infringe even if it provides procedural protections.4

Second, the Court has construed the Fourteenth Amendment’s Due Process Clause to render many provisions of the Bill of Rights applicable to the states.5 As originally ratified, the Bill of Rights restricted the actions of the federal government but did not limit the actions of state governments. However, following ratification of the Reconstruction Amendment, the Court has interpreted the Fourteenth Amendment’s Due Process Clause to impose on the states many of the Bill of Rights’ limitations, a doctrine sometimes called incorporation against the states through the Due Process Clause. Litigants bringing constitutional challenges to state government action often invoke the doctrines of procedural or substantive due process or argue that state action violates the Bill of Rights, as incorporated against the states. The Due Process Clause of the Fourteenth Amendment has thus formed the basis for many high-profile Supreme Court cases.6

The Fourteenth Amendment prohibits states from depriving any person of life, liberty, or property without due process of law. The Supreme Court has held that this protection extends to all natural persons (i.e., human beings), regardless of race, color, or citizenship.7 The Court has also considered multiple cases about whether the word person includes artificial persons, meaning entities such as corporations. As early as the 1870s, the Court appeared to accept that the Clause protects corporations, at least in some circumstances. In the 1877 Granger Cases, the Court upheld various state laws without questioning whether a corporation could raise due process claims.8 In a roughly contemporaneous case arising under the Fifth Amendment, the Court explicitly declared that the United States equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law.9 Subsequent decisions of the Court have held that a corporation may not be deprived of its property without due process of law.10 By contrast, in multiple cases involving the liberty interest, the Court has held that the Fourteenth Amendment protects the liberty of natural, not artificial, persons.11 Nevertheless, the Court has at times allowed corporations to raise claims not based on the property interest. For instance, in a 1936 case, a newspaper corporation successfully argued that a state law deprived it of liberty of the press.12

A separate question concerns the ability of government officials to invoke the Due Process Clause to protect the interests of their office. Ordinarily, the mere official interest of a public officer, such as the interest in enforcing a law, does not enable him to challenge the constitutionality of a law under the Fourteenth Amendment.13 Moreover, municipal corporations lack standing to invoke the provisions of the Fourteenth Amendment in opposition to the will of their creator, the state.14 However, the Court has acknowledged that state officers have an interest in resisting an endeavor to prevent the enforcement of statutes in relation to which they have official duties, even if the officials have not sustained any private damage.15 State officials may therefore ask federal courts to review decisions of state courts declaring state statutes, which [they] seek to enforce, to be repugnant to the Fourteenth Amendment.16

Footnotes

  1.  Jump to essay-1U.S. Const. amend. XIV.
  2.  Jump to essay-2For discussion of the Fifth Amendment’s Due Process Clause, see Amdt5.5.1 Overview of Due Process.
  3.  Jump to essay-3See Amdt14.S1.5.1 Overview of Procedural Due Process to Amdt14.S1.5.8.2 Protective Commitment and Due Process.
  4.  Jump to essay-4See Amdt14.S1.6.1 Overview of Substantive Due Process to Amdt14.S1.6.5.3 Civil Commitment and Substantive Due Process.
  5.  Jump to essay-5See Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights.
  6.  Jump to essay-6Among numerous other examples, see, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Gideon v. Wainwright, 372 U.S. 335 (1963); Griswold v. Connecticut, 381 U.S. 479 (1965); McDonald v. Chicago, 561 U.S. 742 (2010).
  7.  Jump to essay-7Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v. Thompson, 263 U.S. 197, 216 (1923). See Hellenic Lines v. Rhodetis, 398 U.S. 306, 309 (1970).
  8.  Jump to essay-8Munn v. Illinois, 94 U.S. 113 (1877).
  9.  Jump to essay-9Sinking Fund Cases, 99 U.S. 700, 718–19 (1879).
  10.  Jump to essay-10Smyth v. Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Co. v. Paramount Exch., 262 U.S. 544, 550 (1923); Liggett Co. v. Baldridge, 278 U.S. 105 (1928).
  11.  Jump to essay-11Nw. Life Ins. Co. v. Riggs, 203 U.S. 243, 255 (1906); W. Turf Ass’n v. Greenberg, 204 U.S. 359, 363 (1907); Pierce v. Soc’y of Sisters, 268 U.S. 510, 535 (1925).
  12.  Jump to essay-12Grosjean v. Am. Press Co., 297 U.S. 233, 244 (1936) (a corporation is a ‘person’ within the meaning of the equal protection and due process of law clauses). In First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), faced with the validity of state restraints upon expression by corporations, the Court did not determine that corporations have First Amendment liberty rights—and other constitutional rights—but decided instead that expression was protected, irrespective of the speaker, because of the interests of the listeners. See id. at 778 n.14. In Citizens United v. FEC, 558 U.S. 310 (2010), the Court held that the First Amendment prohibits banning political speech based on the speaker’s corporate identity. While Citizens United involved federal regulation, it overruled a prior case that had upheld a related state regulation, Austin v. Michigan Chamber of Com., 494 U.S. 652 (1990).
  13.  Jump to essay-13Pennie v. Reis, 132 U.S. 464 (1889); Taylor & Marshall v. Beckham (No. 1), 178 U.S. 548 (1900); Tyler v. Judges of Ct. of Registration, 179 U.S. 405, 410 (1900); Straus v. Foxworth, 231 U.S. 162 (1913); Columbus & Greenville Ry. v. Miller, 283 U.S. 96 (1931).
  14.  Jump to essay-14City of Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 (1919); City of Trenton v. New Jersey, 262 U.S. 182 (1923); Williams v. Mayor of Baltimore, 289 U.S. 36 (1933). But see Madison Sch. Dist. v. WERC, 429 U.S. 167, 175 n.7 (1976) (reserving question whether municipal corporation as an employer has a First Amendment right assertable against a state).
  15.  Jump to essay-15Coleman v. Miller, 307 U.S. 433, 442, 445 (1939); Boynton v. Hutchinson Gas Co., 291 U.S. 656 (1934); S.C. Highway Dep’t v. Barnwell Bros., 303 U.S. 177 (1938).
  16.  Jump to essay-16Coleman, 307 U.S. at 442–43. The converse is not true, however, and the interest of a state official in vindicating the Constitution provides no legal standing to attack the constitutionality of a state statute in order to avoid compliance with it. Smith v. Indiana, 191 U.S. 138 (1903); Braxton Cnty. Ct. v. West Virginia, 208 U.S. 192 (1908); Marshall v. Dye, 231 U.S. 250 (1913); Stewart v. Kansas City, 239 U.S. 14 (1915). See also Coleman v. Miller, 307 U.S. 433, 437–46 (1939).
  17. source
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Due Process vs Substantive Due Process learn more HERE

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At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

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]]> Galbraith v. County of Santa Clara – Falsifying Evidence – 4th & 5th Amendment https://goodshepherdmedia.net/galbraith-v-county-of-santa-clara-falsifying-evidence-4th-5th-amendment/ Sun, 19 Jun 2022 02:17:54 +0000 https://goodshepherdmedia.net/?p=5698 Galbraith v. County of Santa Clara –

Falsifying Evidence – 4th & 5th Amendment

GALBRAITH V. COUNTY OF SANTA CLARA
*1121
OPINION
SCHROEDER, Chief Judge.
This appeal involves a claim that a county coroner falsified an autopsy report, leading to the false arrest and prosecution of plaintiff Nelson Galbraith (“Galbraith”) for murder in violation of his constitutional rights. The central question is whether a heightened pleading standard should continue to apply to constitutional tort claims in which improper motive is an element. See Branch v. Tunnell, 937 F.2d 1382, 1385-88 (9th Cir. 1991). In light of intervening Supreme Court cases, we hold that the Branch heightened pleading standard no longer applies. See Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Because Galbraith’s amended complaint adequately states claims for relief under the Fourth Amendment absent the heightened pleading standard, see Fed.R.Civ.P. 8(a)(2), we reverse the district court’s order dismissing the complaint with prejudice and remand for further proceedings. We affirm the district court’s dismissal of the due process claims, however, because the more specific provisions of the Fourth Amendment govern our analysis. See County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (citing Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).
ALLEGATIONS OF THE AMENDED COMPLAINT
When reviewing a district court’s order granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we take the factual allegations of the complaint as true and construe them in the light most favorable to the nonmoving party. Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996). The facts as alleged in the amended complaint at issue here are as follows.
Galbraith maintains that his wife, Josephine Galbraith (“Josephine”), committed suicide on September 18, 1995. She first tried to slit her wrists, then strangled herself by double-knotting a sash around her neck. During this time, Galbraith was in a separate room watching television. Josephine had been under the care of physicians for severe depression with suicidal ideation. In the days before her death, Josephine asked her physicians for a lethal dose of medication; she repeatedly told family members that she wanted to die, and said she just wanted to “sprout wings and fly away.”
The officers who investigated Josephine’s death originally concluded that the cause of death was suicide. They based their determination on Josephine’s statements before her death and the absence of scattered blood, defensive wounding, and indication of a struggle at the scene. Dr. Angelo Ozoa, the County’s Chief Medical *1122 Examiner-Coroner, performed an autopsy on Josephine’s body, and concluded that Josephine did not commit suicide but was instead strangled. This finding shifted the focus of the investigation.
Dr. Ozoa’s autopsy report, attached to the amended complaint, describes Josephine’s body as “that of a moderately well developed, moderately well nourished white female.” It further states that external examination of the neck revealed “somewhat transverse wrinkle marks but . . . no evidence of injury” and internal examination revealed that “[t]he hyoid, larynx, trachea, soft tissues and cervical spine are unremarkable and show no evidence of injury.” Despite this apparent lack of injury to the neck, both internally and externally, Dr. Ozoa concluded that the cause of death was asphyxia due to ligature strangulation by an assailant. Galbraith alleges that this conclusion was a result of Dr. Ozoa’s “incompetence” and that Dr. Ozoa deliberately attempted to cover up his incompetence from this point forward.
Dr. Ozoa communicated his autopsy findings to Detective Michael Yore of the Palo Alto Police Department. Detective Yore’s investigative report, which is also attached to the amended complaint, states: “This homicide was originally thought to be a suicide until the Corners [sic] Office advised me that he [sic] cause of death had changed.” Detective Yore spoke with Dick Miller, an employee in the County Coroner’s office, who informed him that the cuts on Josephine’s wrists were too superficial to have caused her death. Miller further indicated that the sash tied around Josephine’s neck had asphyxiated her and Dr. Ozoa concluded “the victim was not strong enough to have tied it herself.” The report states that “[t]he only other person in the house [at] the time of the homicide was the victim’s husband Nelson Galbraith.”
According to the amended complaint, Galbraith was arrested and charged with murdering Josephine as a direct result of Dr. Ozoa’s determinations. Dr. Ozoa testified at Galbraith’s preliminary hearing and trial that Josephine was strangled, that the death was not a result of suicide, and that Galbraith was the likely perpetrator. The jury acquitted Galbraith.
After Galbraith’s acquittal, Josephine’s body was exhumed. An expert retained by Galbraith found that Josephine’s neck organs were not properly dissected. More specifically, the expert concluded that Dr. Ozoa could not have examined key internal neck structures that Dr. Ozoa claimed to have examined in the autopsy report, such as the hyoid bone, which remained fully encased in muscle, and the cartilage of the trachea, which was obscured by the still-attached thyroid gland. The expert opined that close examination of these structures would have been central to any forensic determination that the cause of death was ligature strangulation by an assailant. Galbraith’s amended complaint alleges that Dr. Ozoa intentionally lied about the nature and extent of the autopsy to the police, prosecutors, and later on the stand in order to cover up his shoddy work.
PROCEDURAL HISTORY
The complaint Galbraith originally filed in federal court stated four claims for relief: (1) against Dr. Ozoa and twenty “Doe” defendant coroners and police officers for violating the Fourth and Fourteenth Amendments and 42 U.S.C. § 1983; (2) against Dr. Ozoa and Santa Clara County (the “County”) for policies and practices that proximately caused the false arrest and malicious prosecution of Galbraith in derogation of his constitutional rights under 42 U.S.C. § 1983 and Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); *1123 (3) malicious prosecution under state law; and (4) fraud under state law.
On defendants’ Rule 12(b)(6) motion, the district court dismissed the state law claims with prejudice because it concluded that Dr. Ozoa and the County were immune from claims of malicious prosecution and fraud under state law. Galbraith does not challenge these rulings on appeal. The district court also dismissed the federal claims without prejudice. It held that the complaint pled only negligence, whereas constitutional tort actions that involve improper motive “must contain nonconclusory allegations of unlawful intent.” In so holding, the district court relied on Branch v. Tunnell, 937 F.2d 1382, 1386-87 (9th Cir. 1991) (” Branch I”). The district court also held that any amended pleading would have to allege specific evidence that Dr. Ozoa’s falsifications, and not other evidence available to the prosecution, caused Galbraith to be arrested and prosecuted. See Smiddy v. Varney, 803 F.2d 1469, 1472-73 (9th Cir. 1986) (” Smiddy II”) (requiring evidence on summary judgment “sufficient to overcome the presumption that the prosecutor independently exercised her official duty in instituting the prosecution”).
Galbraith then filed an amended complaint stating two claims for relief: (1) against Dr. Ozoa and twenty “Doe” defendant coroners and police officers for depriving Galbraith of his rights under the Fourth, Fifth and Fourteenth Amendments and 42 U.S.C. § 1983; and (2) against Dr. Ozoa and the County under § 1983 and Monell for policies and practices proximately causing the false arrest and malicious prosecution of Galbraith in derogation of his constitutional rights. Galbraith attached the autopsy report, Dr. Ozoa’s handwritten notes from the autopsy, and the investigative report of Detective Yore to the amended complaint.
Once again, the district court granted defendants’ motion to dismiss the complaint, this time with prejudice. Citing Branch I, the court concluded that the amended complaint’s allegations of incompetent autopsy and omissions in the autopsy report “could very well amount to negligence — but as a matter of law this failure does not support a claim for intentional falsification.” The court further held that, under Smiddy II, the amended pleading failed to allege that Dr. Ozoa’s supposed falsifications, and not independent prosecutorial judgment, caused the County to arrest and charge Galbraith for murder. The district court entered judgment, and Galbraith filed a timely notice of appeal.
DISCUSSION
Relying on Branch I, the district court evaluated Galbraith’s amended complaint under a heightened pleading standard. The court held the amended complaint deficient because it failed to identify with particularity which of Dr. Ozoa’s alleged falsifications led the prosecutor to charge Galbraith with murder; what evidence established that Dr. Ozoa knew that his statements were false; and how the falsifications caused the charging decision. See Branch I, 937 F.2d at 1387-88.
Subsequent cases from the Supreme Court, however, have undermined the authority of Branch I. Although a three judge panel normally cannot overrule a decision of a prior panel on a controlling question of law, see Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001), we may overrule prior circuit authority without taking the case en banc when “an intervening Supreme Court decision undermines an existing precedent of the Ninth Circuit, and both cases are closely on point.” United States v. Lancellotti, 761 F.2d 1363, 1366 (9th Cir. 1985). We *1124 now hold that Branch I and its progeny have been overruled.
In Branch I, this circuit adopted a modified version of the D.C. Circuit’s rule then in effect requiring heightened pleading of improper motive in constitutional tort cases where subjective intent was an element. See Branch I, 937 F.2d at 1385-86 (discussing Siegert v. Gilley, 895 F.2d 797, 801-02 (D.C. Cir. 1990)). We held that “in order to survive a motion to dismiss, plaintiffs must state in their complaint nonconclusory allegations setting forth evidence of unlawful intent.” Id. at 1386. We explained that “bare allegations of improper purpose are insufficient to subject government officials to discovery and the related burdens of defending a lawsuit.” Id. Although we adopted this heightened pleading standard, we declined to adopt the D.C. Circuit’s further requirement that the standard be satisfied with direct rather than circumstantial evidence, recognizing that “evidence of intent is largely within the control of the defendant and often can be obtained only through discovery.” Id. at 1386-87.
In 1993, two years after Branch I, however, the Supreme Court decided Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). There, the Court held that the courts could not impose a heightened pleading standard on plaintiffs alleging § 1983 claims against municipalities. Id. at 164, 113 S.Ct. 1160. Rather, the Court explained that Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires a complaint to include only “a short and plain statement of the claim,” controlled, absent an express exception as articulated in Rule 9(b). Id. at 168, 113 S.Ct. 1160. The Court said any additional pleading requirements may be added by changing the Rules but not by judicial intervention:
Perhaps if Rules 8 and 9 were rewritten today, claims against municipalities under § 1983 might be subjected to the added specificity requirement of Rule 9(b). But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation. In the absence of such an amendment, federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.
Id. at 168-69, 113 S.Ct. 1160.
When Branch came back to us on appeal after remand, we were aware of the tension between Leatherman and Branch I. See Branch v. Tunnell, 14 F.3d 449, 455 (9th Cir. 1994) (” Branch II”). However, we concluded that Leatherman was limited to claims against municipalities and that it therefore had no effect on claims against individual officers: “Although Leatherman is closely on point, the Court expressly declined to make the extension necessary to undermine Branch I: The Court cordoned off the question whether a heightened pleading standard might be justified in an action against an individual officer.” Id. at 456. We therefore held that we were “bound to follow Branch I.” Id. at 457; see also Housley v. United States, 35 F.3d 400, 401 n. 3 (9th Cir. 1994).
After Branch I and Branch II, however, the Supreme Court went on to decide in Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), that appellate courts should not establish heightened pleading or proof requirements regarding improper motive in constitutional tort cases brought against individual defendants. Any such new heightened standard must be imposed by amending the Federal Rules or the applicable statutes. The Court reiterated its earlier refusal “to change the Federal Rules . . . [by] requiring pleading of heightened specificity,” *1125 and the Court emphasized that “questions regarding pleading, discovery, and summary judgment are most frequently and most effectively resolved either by the rulemaking process or the legislative process.” Id. at 595 (citing Leatherman, 507 U.S. at 163-69, 113 S.Ct. 1160).
In light of Crawford-El, nearly all of the circuits have now disapproved any heightened pleading standard in cases other than those governed by Rule 9(b). The D.C. Circuit, which supplied the authority for Branch, has disavowed its heightened standard. See Harbury v. Deutch, 233 F.3d 596, 611 (D.C. Cir. 2000), rev’d on other grounds sub nom. Christopher v. Harbury, ___ U.S. ___, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (“The Supreme Court . . . held that plaintiffs making constitutional claims based on improper motive need not meet any special heightened pleading standard.”) (citing Crawford-El.”) The Tenth and Seventh Circuits have arrived at the same conclusion. See Currier v. Doran, 242 F.3d 905, 916 (10th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 543, 151 L.Ed.2d 421 (2001) (“We conclude that this court’s heightened pleading requirement cannot survive Crawford-El.”); Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998) (“Civil rights complaints are not held to a higher standard than complaints in other civil litigation.”) (citing Crawford-El); see also Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 427 (6th Cir. 2001) (Gilman, J., concurring).
The one contrary decision is Judge v. City of Lowell, 160 F.3d 67, 72-75 (1st Cir. 1998), but we agree with the Tenth Circuit in refusing to follow Judge because it is not consistent with Crawford-El. See Currier, 242 F.3d at 914-17; see also Greenier v. Pace, Local No. 1188, 201 F.Supp.2d 172, 177 (D.Me. 2002) (suggesting that Judge has been overruled by subsequent Supreme Court authority); Gallardo v. DiCarlo, 203 F.Supp.2d 1160, 1163-64 (C.D.Cal. 2002) (refusing to follow Judge in light of Crawford-El).
Any remaining doubt on the issue was dispelled when the Supreme Court revisited heightened pleading requirements earlier this year, after the district court’s decision in this case, and rejected their use as a device to weed out unmeritorious claims. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). This decision was issued subsequent to the district court decision in this case. Although Swierkiewicz dealt specifically with heightened pleading requirements in Title VII discrimination cases, it also stated that “complaints in these cases, as in most others, must satisfy only the simple requirements of Rule 8(a).” Id. at 998 (emphasis added). As it did in Leatherman, the Court pointed to Rule 9(b), which requires heightened pleading only in claims of fraud or mistake, id., and which defendants here have never claimed applies to this case. The Court in Swierkiewicz also stressed the availability of other procedural devices under the Federal Rules — including a motion for more definite statement under Rule 12(e) or a motion for summary judgment under Rule 56 — as tools to weed out meritless claims. Id. at 998-99. “The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim.” Id. at 999.
In light of Crawford-El and Swierkiewicz, we must conclude that Branch I and II are no longer good law to the extent that they require heightened pleading of improper motive in constitutional tort cases. While it is true that cases in our circuit have cited Branch after Crawford-El, see, e.g., Papa v. United States, 281 F.3d 1004, 1010-11 nn. 23-24 (9th Cir. 2002); Lee v. City of Los Angeles, 250 F.3d 668, 679 n. 6 (9th Cir. *1126 2001), none has expressly addressed the continuing viability of Branch’s heightened pleading standard in light of Crawford-El and Swierkiewicz. The rule of Branch is inconsistent with our federal system of notice pleading, as the Supreme Court explained in Swierkiewicz. Accordingly, we must hold that Branch has been overruled by subsequent Supreme Court authority. See Lancellotti, 761 F.2d at 1366.
The district court’s further requirement that the amended complaint allege specific facts to overcome the presumption that independent prosecutorial judgment, and not Dr. Ozoa’s falsifications, led to the arrest and prosecution of Galbraith, also cannot stand. In so requiring, the district court relied on Branch I, 937 F.2d at 1387-88, and Smiddy I. v. Varney, 665 F.2d 261 (9th Cir. 1981) (” Smiddy I”). In Smiddy II, however, we clarified our earlier decision. We explained that the presumption of independent prosecutorial judgment in the charging decision is an evidentiary presumption applicable at the summary judgment stage to direct the order of proof; it is not a pleading requirement to be applied to a motion to dismiss, before discovery has taken place:
The burden was upon Smiddy to prove facts that would overcome the presumption mentioned in Smiddy I that the district attorney acted according to law. The presumption is a common device to direct the order of proof. See Cal.Evid. Code § 664 (West 1982). If Smiddy had contrary evidence, e.g., that the district attorney was subjected to unreasonable pressure by the police officers, or that the officers knowingly withheld relevant information with the intent to harm Smiddy, or that the officers knowingly supplied false information, Smiddy had the burden to produce it. In the absence of evidence to rebut the presumption, the presumption was sufficient to require summary judgment for the defendants upon the specific point covered by the remand.
Smiddy II, 803 F.2d at 1471 (emphases added). Thus, as the Supreme Court subsequently held in Swierkiewicz, the district court should not have converted an evidentiary presumption applicable to the order of proof into a heightened standard for pleading. See Swierkiewicz, 122 S.Ct. at 996-98.
We therefore turn to the amended complaint to determine whether its allegations are adequate to state a claim in the absence of any heightened pleading standard. In dismissing the amended complaint, the district court relied on our authority holding that government investigators may be liable for violating the Fourth Amendment when they submit false and material information in a warrant affidavit. See Branch I, 937 F.2d at 1387-88; see also Butler v. Elle, 281 F.3d 1014, 1024-25 (9th Cir. 2002); Liston v. County of Riverside, 120 F.3d 965, 972-975 (9th Cir. 1997); Hervey v. Estes, 65 F.3d 784, 790 (9th Cir. 1995). Under this authority, a § 1983 plaintiff must show that the investigator “made deliberately false statements or recklessly disregarded the truth in the affidavit” and that the falsifications were “material” to the finding of probable cause. Hervey, 65 F.3d at 790 (9th Cir. 1995).
Neither side has challenged the district court’s application of these warrant affidavit cases to the present facts, and we agree, without deciding any issue of immunity, that a coroner’s reckless or intentional falsification of an autopsy report that plays a material role in the false arrest and prosecution of an individual can support a claim under 42 U.S.C. § 1983 and the Fourth Amendment. See Cabrera v. City of Huntington Park, 159 F.3d 374 (9th Cir. 1998) (analyzing claims of false arrest and malicious prosecution under 42 U.S.C. § 1983 and the Fourth Amendment). *1127 Galbraith claims that Dr. Ozoa recklessly disregarded the truth by asserting in his autopsy report that Josephine was strangled by an assailant while ignoring abundant evidence that pointed to suicide. The amended complaint also describes deficiencies in the autopsy itself tending to indicate that Dr. Ozoa never did the work he claimed he had done to support his conclusion that Josephine’s death was caused by an assailant. Finally, the amended complaint alleges that Dr. Ozoa deliberately lied about the autopsy in the autopsy report, in his communications with other investigators, and on the witness stand at the preliminary hearing in order to cover up his incompetence, and that these lies proximately caused Galbraith’s arrest and prosecution for murder. The amended complaint therefore adequately alleges a Fourth Amendment violation.
Galbraith’s allegation that Dr. Ozoa’s misconduct conformed to County policy also suffices to state a Monell claim against the County. “In this circuit, a claim of municipal liability under section 1983 is sufficient to withstand a motion to dismiss `even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice.'” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir. 1988) (quoting Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986)).
We agree with the district court, however, that Fourth Amendment principles, and not those of due process, govern this case. See County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (discussing Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The Fourth Amendment addresses “pretrial deprivations of liberty,” Albright v. Oliver, 510 U.S. 266, 274, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion), also at issue here, so “[the Fourth] Amendment, not the more generalized notion of `substantive due process,’ must be the guide for analyzing these claims.” Id. at 273, 114 S.Ct. 807 (quoting Graham, 490 U.S. at 395, 109 S.Ct. 1865); see also id. at 276-77, 114 S.Ct. 807 (Ginsburg, J., concurring). The dismissal of the due process claims was therefore correct.
CONCLUSION
Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991), and Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994), have been overruled by subsequent controlling Supreme Court authority to the extent that they require heightened pleading of improper motive in constitutional tort cases against individual officers. We AFFIRM the dismissal of the due process claims but REVERSE and REMAND the Fourth Amendment claims for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED. No costs.
]]> Statutes (Attempting To Sell The Statute) part 2 https://goodshepherdmedia.net/statutes-attempting-to-sell-the-statute-part-2/ Sat, 04 Jun 2022 05:45:11 +0000 https://goodshepherdmedia.net/?p=3557 Statutes (Attempting To Sell The Statute) part 2

GOVERNMENT AGENT ACTING AS THE STATUTE MERCHANT

Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.See, e.g.,Utah Power & Light Co. V. United States, 243 U.S. 389 (1917) 409, 391; United States V. Stewart, 311 U.S. 60 (1940) 70, 108, and see, generally, In re: The Floyd Acceptances, 7 Wall 666 (1868)

NEITHER THE FOR PROFIT GOVERNMENT NOR THE STATUTE MERCHANT/AGENT HAS ACCESS TO SOVEREIGN IMMUNITY

As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation, than are expressly given by the incorporating act. Suits brought by or against it are not understood to be brought by or against the United States. The government, by becoming a corporator, lays down its sovereignty, so far as respects the transaction of the corporation, and exercises no power or privilege which is not derived from the charter.);United States of America v. Georgia-pacific Company, 421 F.2d 92

Government may also be bound by the doctrine of equitable estoppel if acting in proprietary [for profit nature ] rather than sovereign capacity); the “Savings to Suitor Clause” is also available for addressing mercantile and admiralty matters aka “civil process” at the common law.

THE SECURED NATURAL RIGHT IS ASSURED

Hale V. Henkel, 201 U.S. 43 (1906) 74, 26 S.Ct. 370, 50 L.Ed. 652  The individual may stand upon his constitutionally [secured] rights as a Citizen. He is entitled to carry on his own business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no such duty to the state, since he receives nothing there from, beyond the protection of his life and property.

His rights are such as existed by the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of law. He owes nothing to the public so long as he does not trespass upon their rights. On the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its power.);

THE PRIVATE INSOLVENT STATUTE CANNOT UNILATERALLY APPLY TO THE BIOLOGICAL MAN OR WOMAN ABSENT VOLUNTARY ACCEPTANCE

“Courts enforcing your [municipal] statutes do not act judicially but merely ministerally, having thus no judicial immunity and unlike courts of lawdo not obtain jurisdiction by service of process nor even arrest and compelled appearance.”Boswell’s Lessee v. Otis, 50 U.S. 336 (1850)

THE CLEARFIELD DOCTRINE IS CONTROLLING AS REGARDS GOVERNMENT AS A PRIVATE PARTY

When Government is reduced to the Standing of a Private Party by their own election to proceed privately in commerce . . . and any presentment or offer of process and thereby commercial transaction becomes a taxable event and the presenter/transferor is required to execute an IRS Form W-9 surrendering his or her Social Security number so that the transaction may be reported to the IRS on Form 1099-OID as a tax liability assignable to the presenter of the instrument.

Whereas, once the bill is assessed on the 1040-V, the agency is forced into a tax loss write-off and all of the agencies forward sales contracts / agreements (which includes all bonds & securities) are accelerated into time to maturity where the agency on down becomes null & void.　 Does this not include the court itself?　 Case in point:　 HUD contracts (forward sales) with the property management company MC&B, which then contracts with the law firm (forward sales), which contracts with the Court (forward sales) and both appear to employ coercive policies to achieve their commercial scheme to intentionally extort the available credit.　 The court and the agencies are themselves a private business and thereby, the forward sales includes said court and becomes just as much a moot point as all other forward sales since this process comes within the Clearfield doctrine to wit:

“As the use of private corporate commercial negotiable paper, debt currency or [Federal Reserve notes] securities [checks] Bonds Vouchers and the like is concerned, said use, removes the sovereignty status of the government and reduces said government to doing business as a private entity, rather than a government in the area of finance and commerce. This circumstance causes the government to move in commerce the same as a corporation or person.　 “Whereas, Governments descend to the level of a mere private corporation and take on the characteristics of a mere private citizen . . . And thereby; the “entity” known as the [OREGON STATE POLICE/TROOPERS or other TRAFFIC CONTROL OFFICERS in “this state” cannot compel [unilateral] performance upon nor contract its insolvent statute or rules unless it, like any other corporation or person is the holder-in-due course of some (certifiable) contract or [known] commercial agreement between it and the party upon whom the payment and performance are made and thereby, willing to produce said documents and place the same in evidence before trying to enforce its demands called statutes”.　 For purposes of suit, such corporations and individuals are regarded as entities entirely separate from government.”Clearfield Trust Co. v United States, 318 U.S. 363, (1943) Bank of United States V. Planters’ Bank of Georgia, 22 U.S. (9 Wheat.) 904 (1824)

NOTE: Any form of license is not a contract, but a mere unilateral waiver of a “natural right” to accept to be regulated in commerce and is usually achieved by fraud in the inducement on the part of the state of the forum aka “this state” through its law merchant commissioners masquerading as a judiciary.

LEGISLATURES CANNOT INFRINGE NATURAL RIGHT

Robin v. Hardaway,

1 Jefferson 109, 114, 1 Va. Reports Ann. 58, 61 (1772) aff’d. Gregory v. Baugh, 29 Va. 681, 29 Va. Rep. Ann. 466, 2 Leigh 665 (1831) (Now all acts of the legislature apparently contrary to natural right and justice, are, in our laws, and must be in the nature of things, considered as void.The laws of nature are the laws of God; whose authority can be superseded by no power on earth. A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict his laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice. And cited 8 Co. 118. a. Bonham’s case. Hob. 87; 7. Co. 14. a. Calvin’s case.);

Dr. Bonham’s Case,

8 Coke’s Reports 107, at 118 (1610) ([I]n many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such to be void.); aff’d. Robin v. Hardaway,1 Jefferson 109, 114, 1 Va. Reports Ann. 58, 61 (1772);Tumey v. Ohio, 273 U.S. 510 (1927) 524

The thing speaks for itself {Res ipsa loquitur};

1.Natural Right. . . (Recognized by “this state” as Paramount to the statute and the natural law is controlling) BACKGROUND GOING TO THE PRESUMPTIVE AND FRAUDULENT “UNILATERAL” ENFORCEMENT OF THE WHOLLY ELECTIVE CITATION AFTER THE SOVEREIGNS REFUSAL TO CONTRACT WITH THE AGENT/LAW MERCHANT.

SIMULATING LEGAL PROCESS

ORS 162.355[1971 c.743 s.210; 1997 c.395 s.1] (Simulating legal process) (1) A person commits the crime of simulating legal process if the person knowingly issues or delivers to another person any document that in form and substance falsely simulates civil or criminal process. (2) As used in this section: (a) “Civil or criminal process” means a document or order, including, but not limited to, a summons, lien, complaint, warrant, injunction, writ, notice, pleading or subpoena, that is issued by a court or that is filed or recorded for the purpose of: (A) Exercising jurisdiction; (B) Representing a claim against a person or property; (C) Directing a person to appear before a court or tribunal; or (D) Directing a person to perform or refrain from performing a specified act. (b) “Person” has the meaning given that term in ORS 161.015, except that in relation to a defendant, “person” means a human being, a public or private corporation, an unincorporated association or a partnership. (3) Simulating legal process is a Class C felony.

NATURAL RIGHT IS TO PREVAIL OVER THE STATUTE

1. Where a statute is equally susceptible of two interpretations,one in favor of natural right and the other against it, the former [natural right] is to prevail.

2.Standing. . . (On God’s Land) (Not to be treated as occupying the “airs space above” the land. See: ORS 131.205 to 131.235 below.

3.Omission. . . (Of the implementing regulation dates of the regulatory statute [displayed within brackets], recognizing the statute as a for profit private copy right law and unenforceable absent knowing acceptance and related quid pro quo consideration.)

4.Contract. . . (A Secured Right that Cannot be Infringed). “Contract” is acknowledged as applicable under the Uniform Commercial Code and contract goes first and foremost to full disclosure and the right of choice upon full disclosure at Chapter 71- UCC Section 71.1030.

Oregon Statutes – Chapter 71 – General Provisions for Uniform Commercial Code – Section 71.1030 – Supplementary general principles of law applicable.

Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent,estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions. [1961 c.726 §71.1030]

Fraud will not be entertained under the law merchant and thereby, the agent cannot contract the statute by use of Fraud in the Inducement:“… as such fraud is intended to and which does cause one to execute an instrument, or make an agreement… The misrepresentation involved does not mislead one as the paper he signs but rather misleads as to the true facts of a situation, and the false impression it causes is a basis of a decision to sign or render a judgment”. Source: Steven H. Gifis, ‘Law Dictionary’, 5th Edition, Happauge: Barron’s Educational Series, Inc., 2003, s.v.: ‘Fraud’.

This is the point where “this state[s]” statute merchant “agent” “personally” and in his or her “Individual capacity” pervert the process for and to their own advantage . . . but the law is in place to call said “agent” on their fraud and related extortion, as the natural law will prevail.

1. “This state” recognizes the Natural Right to prevail over the statutes of “this state”, as recognized at ORS Chapter 174: Section 174.030 below.

Oregon Statutes – Chapter 174 – Construction of Statutes; General Definitions – Section 174.030 – Construction favoring natural right to prevail.Where a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former [natural right] is to prevail.

THE CORPORATE STATE EXISTS ONLY IN METAPHYSICAL TERMS

2.”The [de jure] state” acknowledges the Land that you “Stand” on, by addressing that (This [de facto] state, rather than “The state”) exists (APPEARS) in the “airspace” above that land and is not grounded. See: Chapter 131:

ORS 131.205 to 131.235,“this” state” meansthe [fictitious] land and water and the air space abovethe [substantive] Land and Waterwith respect to which “the”State of Oregon[being the land below and on which you are STANDING]has legislative jurisdiction.

Where and How does the Statute Court Acquire Jurisdiction over the Natural Man or Woman?

“This state” through “its” statute courts i.e. civil/admiralty Prize Courts . . . issues “Charges” . . . the charges cannot reach and therefore empower the court until the charges are grounded to complete the (Circuit of that Court). You are on the Ground or the “Grounded” party and if you don’t voluntarily join (go into controversy and respond to the charges), the court is not grounded and has no “power” to move forward . . . As long as you don’t “appear” or stand outside of the BAR, the court is “dis-empowered” to move or issue motion(s) or process . . . the court must be “plugged” into you to LIGHT ITS FICTIONAL FIRE . . . and this is the behind the scenes slight of hand employed to coerce jurisdiction over the natural Man or party . . . such process is held as “Fraud in the Inducement” whereas;

3. “Omission” as noted within the “Government Printing Office Style Manual” (Rules of Style) provides the recognition and distinction between substantive “natural right” and the right of “standing” of the Sovereign Man or Woman and the private copyright law as simply defined in “this state” and as “elective” and thereby coming within the consideration going to the right of “election” to “Contract” or not to “Contract.” (The Government Shall not Infringe the Right of Contract.)

4. “Contract” is acknowledged as applicable under the Uniform Commercial Code and contract goes first and foremost to full disclosure and the right of choice upon full disclosure at Chapter 71:

Oregon Statutes – Chapter 71 – General Provisions for Uniform Commercial Code – Section 71.1030 – Supplementary general principles of law applicable.

Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel,fraud,misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions. [1961 c.726 §71.1030]

Fraud will not be entertained under the law merchant and thereby, the agent cannot contract the statute by use of Fraud in the Inducement: “… as such fraud is intended to and which does cause one to execute an instrument, or make an agreement… The misrepresentation involved does not mislead one as the paper he signs but rather misleads as to the true facts of a situation, and the false impression it causes is a basis of a decision to sign or render a judgment”.Source: Steven H. Gifis, ‘Law Dictionary’, 5th Edition, Happauge: Barron’s Educational Series, Inc., 2003, s.v.: ‘Fraud’.

This is the point where “this state[s]” statute merchant “agent” “personally” and in his or her “Individual capacity” pervert the process for and to their own advantage . . . but the law is in place to call said “agent” on their fraud and related extortion, as well as the natural law to wit: “The people, or sovereign are not bound by general words in statutes, restrictive of prerogative right, title or interest, unless expressly named.

Acts of limitation do not bind the King or the people. The people have been ceded all the rights of the King, the former sovereign … It is a maxim of the common law, that when an act is made for the common good and to prevent injury, the King shall be bound, though not named, but when a statute is general and prerogative right would be divested or taken from the King [or the people] he shall not be bound.” — The People v. Herkimer, 4 Cowen (NY) 345, 348 (1825):

PRIVATE FOR PROFIT STATUTES ARE INSOLVENT ABSENT JOINDER

United States v. Herron, 87 U.S. 251 (1873 It is a maxim of the common law, said Savage, C.J., that when an act of Parliament is passed for the public good, as for the advancement of religion and justice or to prevent injury and wrong, the King shall be bound by such act though not named, but when a statute is general and any prerogative, right, title, or interest would be divested or taken from the King, in such a case he shall not be bound unless the statute is made by express words to extend to him, for which he cites both English and American authorities, and adds that the people of the state, being sovereign, have succeeded to the rights of the former sovereign, and that the people of the state are not bound by the general words in the insolvent law.
  1. Sed vide: The cause of the church is equal to public cause; and paramount is the reason which makes for religion{Causa ecclesiæ publicis æquiparatur; et summa est ratio quæ pro religione facit; Coke, Litt. 341}; The law of God and the law of the land are all one; and both preserve and favor the common and public good of the land {Le ley de dieu et ley de terre sont tout un; et l’un et l’autre preferre et favour le common et publique bien del terre; Keilw. 191}; No man warring for God should be troubled by secular business {Nemo militans Deo implicetur sccularibus negotiis; Coke, Litt. 70}; The thing speaks for itself {Res ipsa loquitur}; A sacrilegious person transcends the cupidity and wickedness of all other robbers {Sacrilegus omnium prædorum cupiditatem et scelerem superat; 4 Coke, 106}; That is the highest law which favors religion {Summa est lex quæ pro religione facit; 10 Mod. 117, 119; 2 Chanc. Cas. 18}; accord,　Fiction yields to truth {Fictio cedit veritati}; We can do nothing against truth {Nihil possumus contra veritatem; St. Albans, Doct. & Stu. Dial. 2, c. 6}; He who does not freely speak the truth is a betrayer of the truth {Qui non libere veritatem pronunciat proditor est veritatis}; Suppression of the truth is (equivalent to) the suggestion of what is false {Suppressio veri, suggestio falsi; 23 Barb. N.Y. 521, 525}; Truth, by whomsoever pronounced, is from God {Veritas, a quocunque dicitur, a Deo est}; A greater or superior force; an irresistible force {Vis major};　and that class of authority, reason, custom and usage ad infinitum:

REMEMBER . . . . ALL AGENTS OF “THIS [corporate] STATE” PROCEED IN THE NATURE OF A “LAW MERCHANT” TO OFFER AND THEREBY “SELL” THE “INSOLVENT” STATUTE . . . THE PRIMARY QUESTION IS: “WHAT IS MY CONSIDERATION SHOULD I ACCEPT YOUR OFFER?” DOESEN’T MY CONSIDERATION HAVE TO BE QUID PRO QUO i.e. VALUE FOR VALUE?

Consider the following:

THE USE OF THE HIGHWAYS IS A MATTER OF RIGHT

Oregon Statutes – Chapter 801 – General Provisions and Definitions for Oregon Vehicle Code

– Section 801.305 – “Highway.”

(1) “Highway” means every public way, road, street, thoroughfare and place, including bridges, viaducts and other structures within the boundaries of this state, open, used or intended for use of the general public for vehicles or vehicular traffic as a matter of right.

(2) For the purpose of enforcing traffic offenses contained in the Oregon Vehicle Code, except for ORS 810.230, “highway” includes premises open to the public that are owned by a homeowners association and whose boundaries are contained within a service district established on or before July 1, 2002, under ORS 451.410 to 451.610. [1983 c.338 §51; 2007 c.561 §1]

WHEREAS; ORS 801.305 “Highway”. “Highway” means every public way, road, street, thoroughfare and place, including bridges, viaducts and other structures within the boundaries of “this state”, open, used or intended for use of the general public for vehicles and vehicular traffic as a matter of [natural] right.” Reference: HB 3445 (2007) “Officers duty at a traffic stop, is to issue a citation and leave.

Assuming that officer had reasonable suspicion that defendant was driving under the influence and that investigatory stop of defendant’s vehicle was valid, subsequent seizure of weapons found in vehicle was illegal, where defendant was detained longer than was reasonable and scope of investigation exceeded reason for stop:….” State of Oregon v. Carl Wayne Johnson, CR 89-0008; CA A62045; 106 Or.App. at 371.

The Fourth Amendment “prohibits” unreasonable detention of private citizens without probable cause that the individual detained has or is about to commit a “crime”. You cannot be compelled to produce identification in a “non criminal” setting. Kolender v. Lawson, 461 U.S. 352 (1983)

A “traffic stop” is an administrative stop if not based upon a “crime”. If your automobile does not display a “DOT Number” indicating that it is “for hire” you cannot be stopped for any “non-criminal” infraction. See generally: United States v. Herrera, No. 05-3057 (10th Cir. April 19, 2006) D C No 04-CR-20023-02-JWL).

And if you don’t hold or possess the OREGON “DRIVER” LICENSE, you have not elected to become a “Customer” of the OREGON DMV and thereby, there is no existing nexus to presume you have waived your “Right to Travel” and thereby converted said right into a commercial regulatory privilege which by its nature fails on its face as a matter of law.

UNITED STATES V. HERRON, 87 U. S. 251 (1873) a maxim of the common law, said Savage, C.J., that when an act of Parliament is passed for the public good, as for the advancement of religion and justice or to prevent injury and wrong, the King shall be bound by such act though not named, but when a statute is general and any prerogative, right, title, or interest would be divested or taken from the King, in such a case he shall not be bound unless the statute is made by express words to extend to him, for which he cites both English and American authorities, and adds that the people of the state, being sovereign, have succeeded to the rights of the former sovereign, and that the people of the state are not bound by the general words in the insolvent law.” i.e. the private for profit copyright statute.

Lastly, the Natural Right to Travel:　

“U.S. Courts affirm that Citizens have the right to
travel freely on the public right of way”.

For many years Professionals within the criminal justice System have acted upon the belief that traveling by motor vehicle upon the roadway was a privilege that was gained by a citizen only after approval by their respective state government in the form of the issuance of a permit or license to that Particular individual. Legislators, police officers and court officials are becoming aware that there are now court decisions that prove the fallacy of the legal opinion that” driving is a privilege and therefore requires government approval, i.e. a license”. Some of these cases are:

Case # 1 – “Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience. – Chicago Motor Coach v Chicago 169 NE 22
(“Regulated” here means traffic safety enforcement, stop lights, signs, etc. NOT a privilege that requires permission i.e.- licensing, mandatory insurance, vehicle registration, etc.)

Case # 2 – “The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common right which he has under the right to life, liberty, and the pursuit of happiness.”- Thompson v Smith 154 SE 579.

It could not be stated more conclusively that Citizens of the states have a right to travel, without approval or restriction, (license,) and that this right is protected under the U.S. Constitution. Here are other court
decisions that expound the same facts:

Case # 3 – “The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the 5th Amendment.” Kent v. Dulles, 357 U.S. 116, 125, (1958)

Case # 4 – “Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal Liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the l4th Amendment and by other provisions of the Constitution.” – Schactman v Dulles, 225 F.2d 938 (1955)

FUNDAMENTAL RIGHT

As hard as it is for those of us in Law enforcement to believe, there is no room for speculation in these court decisions. The American citizen does indeed have the inalienable right to use the roadways unrestricted in any manner as long as they are not damaging or violating property or rights of another.

Government, in requiring the people to file for “drivers Licenses, vehicle registrations, mandatory insurance, and demanding they stop for vehicle inspections, DUI/DWI roadblocks etc. without question, are “restricting”, and therefore violating, the Peoples common law right to travel.

Is this a new legal interpretation on this subject of the right to travel? Apparently not. The American Citizens and Lawmen Association in conjunction with The U.S. Federal Law Research Center are presently involved in studies in several areas involving questions on constitutional law. One of the many areas under review is the area of “Citizens right to travel.” In an interview a spokesmen stated: “Upon researching this subject over many months, substantial case law has presented itself that completely substantiates the position that the “right to travel unrestricted upon the nations highways” is and has always been a fundamental right of every Citizen.”

This means that the “beliefs and opinions” our state legislators, the courts, and those of as involved in the law enforcement profession have acted upon for years have been in error. Researchers armed with actual facts state that U.S. case law is overwhelming in determining that – to restrict, in any fashion, the movement of the individual American in the free exercise of their right to travel upon the roadways, (excluding “commerce” which the state Legislatures are correct in regulating), is a serious breach of those freedoms secured by the U.S. Constitution, and most state Constitutions, i.e – it is Unlawful.

THE REVELATION THAT THE AMERICAN CITIZEN HAS ALWAYS HAD THE INALIENABLE RIGHT TO TRAVEL RAISES PROFOUND QUESTIONS TO THOSE WHO ARE INVOLVED IN MAKING AND ENFORCING UNDER FRAUD IN THE INDUCEMENT, “INSOLVENT” STATE LAWS FOR PROFIT.

The first of such questions may very well be – If the States have been enforcing laws that are unconstitutional on their face, it would seem that there must be some way that a state can legally put restrictions, such as – licensing requirements, mandatory insurance, vehicle registration, vehicle inspections, D.W.I. roadblocks, to name just a few, on a Citizens constitutionally protected right. Is that not so?

For the answer to this question let us look, once again, to the U.S. courts for a determination on this very issue.

The case of Hurtado v. California, 110 U.S. 516 (1884) states very plainly: “The State cannot diminish rights of the people.”

“the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.”-Davis v. Wechsler, 263 U.S. 22,24 (1923)

Would we not say that these judicial decisions are straight to the point – that there is no lawful method for government to put restrictions or Limitations on rights belonging to the people?

Other cases are even more straight forward:

“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” –Miranda v. Arizona, 384 U.S. 436, 439 (1966 )

“The claim and exercise of a constitutional right cannot be converted into a crime.· –Miller v. U.S., 230 F.2d 486, 489

“There can be no sanction or penalty imposed upon one because of this exercise of Constitutional rights.”-Sherar v. Cullen, 481 F.2d 945 ( There is no question that a citation/ticket issued by a police officer, for no drivers license, no current vehicle registration, no vehicle insurance etc. which carries a fine or jail time, is a penalty or sanction, and is indeed “converting a Right into a crime”.)

We could go on, quoting court decision after court decision, however, In addition, the Constitution itself answers our question- “Can a government legally put restrictions on the rights of the American people at anytime, for any reason”? (Such as in this particular case – when the government believes it to be for the safety and welfare of the people).

The answer is found in ARTICLE SIX of the U.S. Constitution:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not withstanding”. (This tells us that the U.S. Constitution is to be upheld over any state, county, or city Laws that are in opposition to it.)

In the same Article it goes on to say just who it is within our governments that is bound by this Supreme Law:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;”. – ART. 6 U.S. CONST.

We know that Police officers, are a part of the Executive branch. We are “Executive Officers”.

Article 6 above, is called the SUPREMACY CLAUSE, and it clearly states that, under every circumstance, the above listed officials in these United States must hold this documents tenets supreme over any other laws, regulations, or orders. Every U.S. Police officer knows that they have sworn a oath to the people of our nation that we will not only protect their lives and property, but, that we will uphold, and protect their freedoms and rights under the Supreme laws of this nation, – the U. S. Constitution.

In this regard then, we must agree that those within government that restrict a Citizens rights, (such as restricting the people’s right to travel,) are acting in violation of his or her oath of office and are actually committing a crime against such Citizens. Here’s an interesting question. Is ignorance of these laws an excuse for such acts by officials? If we are to follow the “letter of the law (as we are sworn to do), this places officials that involve themselves in such unlawful acts in an unfavorable legal situation. For it is a felony and federal crime to violate, or deprive citizens of their constitutionally protected rights.

Our system of law dictates the fact that there are only two ways to legally remove a right belonging to the people. These are – #1 – by lawfully amending the constitution, or #2 – by a person knowingly waiving a particular right.

Some of the confusion in our present system has arisen because many millions of people have waived their right to travel “unrestricted” upon the roadways of the states and opted into the jurisdiction of the state for various reasons. Those who have knowingly given up these rights are now legally regulated by state law, the proper courts, and “sworn, constitutionally empowered officers-of-the-law,” and must acquire proper permits, registrations, insurance, etc.

There are basically two groups of people in this category:

#1 – Any citizen that involves themselves in “commerce,” (business for private gain), upon the highways of the state.

Here is what the courts have said about this:

“…For while a citizen has the right to travel upon the public highways and to transport his property thereon, that right does not extend to the use of the highways, either in whole or in part, as a place for private gain. For the latter purpose no person has a vested right to use the highways of the state, but is a privilege or license which the legislature may grant or withhold at its discretion…” – State v Johnson, 243 P. 1073, 1078.

Other U.S. court cases that confirm and point out the difference between the “right” of the citizen to travel and a government “privilege” are – Barney v Board of Railroad Commissioners; State v City of Spokane, 186 P. 864.; Ex Parte Dickey (Dickey v Davis), 85 S.E. 781.; Teche Lines v Danforth, 12
So.2d 784.

There are numerous other court decisions that spell out the JURISDICTION issue in these two distinctly different activities. However, because of space restrictions we will leave it up to officers to research it further for themselves. (See last page for additional references).

#2 – The second group of citizens that are legally under the jurisdiction of the state is the individual citizen who has voluntarily and knowingly waived their right to travel “unregulated and unrestricted” by requesting placement under such jurisdiction through the acquisition of a state – drivers license, vehicle registration, mandatory insurance, etc. (In other words “by contract only”.)

We should remember what makes this “legal,” and not a violation of the individual’s common law right to travel “unrestricted” is that they knowingly volunteer, freely, by contract, to waive their right. If they were forced, coerced or unknowingly placed under the States powers, the courts have said it is a clear violation of their rights.

This in itself raises a very interesting question. What percentage of the people in each state have filed, and received, licenses, registrations, insurance etc. after erroneously being advised by their government that it was mandatory?

Many of our courts, attorneys and police officials are just becoming informed about this important issue and the difference between “Privileges vs. Rights”. We can assume that the majority of those Americans carrying state licenses, vehicle registrations etc., have no knowledge of the rights they waived in obeying laws such as these that the U.S. Constitution clearly states are unlawful, i.e. “laws [that are insolvent], are of no effect”. In other words – “LAWS THAT ARE NOT LAWS AT ALL.”

OUR SWORN DUTY

An area of serious consideration for every police officer, is to understand that the most important law in our land he has taken an oath to protect, defend, AND ENFORCE, is not state laws, nor city or county ordinances, but, that law that supercede all other laws in our nation, – the U.S. Constitution. If laws in a particular police officer’s state, or local community are in conflict with the SUPREME LAW of our nation, there Is no question that the officer’s duty is to “uphold the U.S. Constitution.”

What does this mean to the “patrol officer” who will be the only sworn “Executive Officer” on the scene, when knowledgeable Citizens raise serious objections over possession of insurance, drivers licenses and other restrictions? It definitely means these officers will be faced with a hard decision. (Most certainly if that decision affects state, city or county revenues, such as the issuing of citations do.)

Example: If a state legislator, judge or a superior tells a police officer to proceed and enforce a contradictory, (illegal), state law rather than the Supreme Law of this country, what is that “sworn officer” to do? Although we may not want to hear it, there is but one right answer, – “the officer is duty bound to uphold his oath of office” and obey the highest laws of the nation. THIS IS OUR SWORN DUTY AND IT’S THE LAW!

Such a strong honest stand taken by a police officer, upholding his or her oath of office, takes moral strength of character. It will, without question, “SEPARATE THE MEN FROM THE BOYS.” Such honest and straight forward decisions on behalf of a government official have often caused pressure to be applied to force such officers to set aside, or compromise their morals or convictions.

As a solace for those brave souls in uniform that will stand up for law and justice, even when it’s unpopular, or uncomfortable to do so…let me say this. In any legal stand-off over a sworn official “violating” or “upholding” their oath of office, those that would side with the “violation” should inevitable lose.

Our Founding Fathers assured us, on many occasions, the following: Defending our freedoms in the face of people that would for “expedients sake,” or behind the guise, “for the safety and welfare of the masses,” ignore people’s rights, would forever demand sacrifice and vigilance from those that desired to remain free. That sounds a little like – “Freedom is not free!”

Every police officer should keep the following U.S. court ruling in mind that was covered earlier, before issuing citations in regard to presumptive “mandatory licensing, registration and insurance” – verses – “the right of the people to travel unencumbered”:

“THE CLAlM AND EXERCISE OF A CONSTITUTIONALLY [SECURED] RlGHT CANNOT BE CONVERTED INTO A CRIME.” –Miller v. U.S., 230 F.2d 486, 489

And as we have seen, “traveling freely,” going about ones daily activities, is the exercise of a most basic right.

UNITED STATES V. HERRON, 87 U. S. 251 (1873) It is a maxim of the common law, said Savage, C.J., that when an act of Parliament is passed for the public good, as for the advancement of religion and justice or to prevent injury and wrong, the King shall be bound by such act though not named, but when a statute is general and any prerogative, right, title, or interest would be divested or taken from the King, in such a case he shall not be bound unless the statute is made by express words to extend to him, for which he cites both English and American authorities, and adds that the people of the state, being sovereign, have succeeded to the rights of the former sovereign, and that the people of the state are not bound by the general words in the insolvent law.

Aid&Abet Newsletter Mon, 03 Feb 2003 14:09:19 -0600
P.O.BOX 8787, PHOENIX, ARIZONA 85066

CLARIFICATON:

The courts state that a Citizen has an unalienable right to travel freely. This includes the right to travel freely for one’s own private need and enjoyment in an automobile on the public right of way. However, the term “motor vehicle” has a special meaning in the law, as does the term “driving”. “Motor vehicles” are self-propelled devices used for “transport of persons and/or property on the highway”. “Transport” means to move something in commerce. “Driving” is the act of controlling a “motor vehicle”. All of these terms relate to specifically defined commercial use of the public right of way, and commercial use of publicly maintained property is not a right, but a privilege that can be taxed through licensure and registration.

Note also:

The registration of the vehicle at the time of purchase is accomplished by way of “fraud in the inducement,” “Actual Fraud” and Theft by Deception, whereby the “certificate of origin” of the vehicle in question is caused to be surrendered to the DMV, presuming to transfer legal title to said DMV, when in fact, the DMV has given no value for said vehicle. In essence, evidence of registration is an admission of the above criminal acts to defraud and claim control of property that the DMV has no commercially vested interest in except by way of constructive fraud.

“Every commercial law and every regulation is a price-fix of sorts and generates – for some service or some product – a queue, a shortage or a forcible redistribution of resources and must by its nature indemnify the actor/customer.” (But requires knowing “Joinder” by you! Never go into controversy . . . that is by deception, considered a traverse and joinder! (a presumptive knowing grant of jurisdiction.)

The bottom line is biblical re the corporation and other fictional entities:

“Wherefore come out from among them, and be ye separate, saith the Lord, and touch not the unclean [thing]; and I will receive you . . “

2 Corinthians 6:17

 THE FOLLOWING PAGE BELOW ALSO HAVE A PLETHORA OF SUPREME COURT RULINGSON THIS GOD GIVEN RIGHTS, SEARCH AND PROPERTY RIGHTS BELOW

NO Law requires you to record / pledge your private automobile

Supreme court cases from digging around Robin v. Hardaway 1790

 

cited https://keystoliberty2.wordpress.com/2012/01/03/statutes-attempting-to-sell-the-statute-part-2/

]]> NO Law requires you to record / pledge your private automobile https://goodshepherdmedia.net/no-law-requires-you-to-record-pledge-your-private-automobile/ Tue, 24 May 2022 07:04:46 +0000 https://goodshepherdmedia.net/?p=3563 this article below’s title may be quite misleading (we kept the original author’s as this was his reason for his research)
so keep reading, it will give you a vast outlook on your rights with judges, DA’s, police and other government servants

NO Law requires you to record / pledge your private automobile 24 pages of rulings supporting your rights

Government / Public Servants / Officers / Judges Not Immune from suit!

NO Law requires you to record / pledge your private automobile

 

As will be made painfully evident herewithin, a Private automobile is not required by any law, code or statute to be recorded. Any recording (pledge) of Private automobile to any agency is strictly voluntary. Any recordation / contract you or a Dealership has done was a fraudulently conveyed act as the recording agency/automobile Dealer told you that you must record your Private Property. The voluntary pledge that was done without just compensation is usually done through fraud, deceit, coercion and withholding of facts, which can only be construed as fraud and unjust enrichment by agency as well as a willful malicious act to unjustly enrich the recording agency and its public servants.

If men, through fear, fraud or mistake, should in terms renounce or give up any natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of Almighty God, it is not in the power of man to alienate this gift and voluntarily become a slave. Samuel Adams, our great president.

“Men are endowed by their Creator with certain unalienable rights, -‘life, liberty, and the pursuit of happiness;’ and to ‘secure,’ not grant or create, these rights, governments are instituted. That property which a man has honestly acquired he retains full control of, subject to these limitations: first, that he shall not use it to his neighbor’s injury, and that does not mean that he must use it for his neighbor’s benefit: second, that if he devotes it to a public use, he gives to the public a right to control that use; and third, that whenever the public needs require, the public may take it upon payment of due compensation.”  Budd v. People of State of New York, 143 U.S. 517 (1892).

There should be no arbitrary deprivation of life or liberty, or arbitrary spoilation of property. (Police power, Due Process) Barber v. Connolly, 113 U.S. 27, 31; Yick Yo v. Hopkins, 118 U.S. 356.

But whenever the operation and effect of any general regulation is to extinguish or destroy that which by law of the land is the property of any person, so far as it has that effect, it is unconstitutional and void.  Thus, a  law is considered as being a deprivation of property within the meaning of this constitutional guaranty if it deprives an owner of one of its essential attributes, destroys its value, restricts or interrupts its common, necessary, or profitable use, hampers the owner in the application of it to the purposes of trade, or imposes conditions upon the right to hold or use it and thereby seriously impairs its value.  (Statute) 167 Am. Jur. 2d, Constitutional Law, Section 369.

 

Justice  Bandeis  eloquently  affirmed  his  condemnation  of  abuses practiced by Government officials, who were defendants, acting as Government officials. In the case of  Olmstead vs. U.S. 277 US 438, 48 S.Ct. 564, 575; 72 L ED 944 (1928) he declared:

“Decency,  security,  and  liberty  alike  demand  that Government officials shall be subjected to the same rules of  conduct  that  are  commands  to  the  Citizen.  In  a Government of laws, existence of the Government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher.

For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breads contempt for law; it invites every man to become a law unto himself. It invites anarchy. To declare that, in the administration of the law, the end justifies the means would bring a terrible retribution. Against that pernicious doctrine, this Court should resolutely set its face.”

 

The Duty of the Licensor / DMV Commissioner

The information created and surrounding the stricti juris doctrine regarding a particular license which may, or may not, be represented by and revealed within the contents and control of a license agreement

— “but must be revealed upon demand, and failure to do so is

concealment,  a  withholding  of  material  facts  (the  enducing, contractual  consideration) known by those who have a duty and are bound to reveal.”  Dolcater  v.  Manufacturers & Traders Trust Co., D.C.N.Y., 2F.Supp. 637, 641.

Is an automobile always a vehicle (or motor vehicle)?

 

ARGUMENT:

 

Federal;

“‘‘Motor vehicle’’ means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in transportation of passengers, passengers and property, or property and cargo; … “Used for commercial purposes” means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit[.]” 18 U.S.C. 31.

 

“A carriage is peculiarly a family or household article.  It contributes in a large degree to the health, convenience, comfort, and welfare of the householder or of the family.” Arthur v Morgan, 113 U.S. 495, 500, 5 S.Ct. 241, 243 S.D. NY 1884).

 

“The Supreme Court, in Arthur v. Morgan, 112 U.S. 495, 5 S.Ct. 241, 28 L.Ed.  825, held that carriages were properly classified as household effects, and we see no reason that automobiles should not be similarly disposed of.” Hillhouse v United States, 152 F. 163, 164 (2nd Cir. 1907).

 

“A soldier’s personal automobile is part of his “household goods[.]”   U.S. v Bomar, C.A.5(Tex.), 8 F.3d 226, 235″  19A Words and Phrases – Permanent Edition (West) pocket part 94.

“[I]t is a jury question whether … an automobile … is a motor vehicle[.]” United States v Johnson, 718 F.2d 1317, 1324 (5th Cir. 1983).

 

State:

Use determines classification

“In determining whether or not a motor boat was included in the expression household effects, Matter of Winburn’s Will, supra [139 Misc. 5, 247 N.Y.S. 592], stated the test to be “whether the articles are or are not used in or by the household, or for the benefit or comfort of the family”.”   In re Bloomingdale’s Estate, 142 N.Y.S.2d 781, 785 (1955).

“The use to which an item is put, rather than its physical characteristics, determine whether it should be classified as “consumer goods” under UCC 9-109(1) or   “equipment” under UCC 9-109(2).”    Grimes v Massey Ferguson, Inc., 23 UCC Rep Serv 655; 355 So.2d 338 (Ala., 1978).

“Under UCC 9-109 there is a real distinction between goods purchased for personal use and those purchased for business use.  The two are mutually exclusive and the principal use to which the property is put should be considered as determinative.”   James Talcott, Inc. v Gee, 5 UCC Rep Serv 1028; 266 Cal.App.2d 384, 72 Cal.Rptr. 168 (1968).

“The classification of goods in UCC 9-109 are mutually exclusive.”   McFadden v Mercantile-Safe Deposit & Trust Co., 8 UCC Rep Serv 766; 260 Md 601, 273 A.2d 198 (1971).

“The classification of “goods” under [UCC] 9-109 is a question of fact.” Morgan County Feeders, Inc. v McCormick, 18 UCC Rep Serv 2d 632; 836 P.2d 1051 (Colo. App., 1992).

“The definition of “goods” includes an automobile.”   Henson v Government Employees Finance & Industrial Loan Corp., 15 UCC Rep Serv 1137; 257 Ark 273,516 S.W.2d 1 (1974).

 

Household goods

“The term “household goods” … includes everything about the house that is usually held and enjoyed therewith and that tends to the comfort and accommodation of the household.  Lawwill v. Lawwill, 515 P.2d 900, 903, 21 Ariz.App. 75” 19A Words and Phrases – Permanent Edition (West) pocket part Cites Mitchell’s Will below.

“Bequest … of such “household goods and effects” … included not only household furniture, but everything else in the house that is usually held and used by the occupants of a house to lead to the comfort and accommodation of the household. State ex rel. Mueller v Probate Court of Ramsey County, 32 N.W.2d 863, 867, 226 Minn. 346.” 19A Words and Phrases – Permanent Edition (West) 514.

“All household goods owned by the user thereof and used solely for noncommercial purposes shall be exempt from taxation, and such person entitled to such exemption shall not be required to take any affirmative action to receive the benefit from such exemption.”  Ariz. Const. Art. 9, 2.

 

Automobiles classified as vehicles

““[H]ousehold goods”…did not [include] an automobile…used by the testator, who was a practicing physician, in going from his residence to his office and vice versa, and in making visits to his patients.”  Mathis v Causey, et al., 159 S.E. 240 (Ga. 1931).

“Debtors could not avoid lien on motor vehicle, as motor vehicles are not “household goods” within the meaning of Bankruptcy Code lien avoidance provision.  In re Martinez, Bkrtcy.N.M., 22 B.R. 7, 8.”  19A Words and Phrases – Permanent Edition (West) pocket part 94.

 

Automobiles NOT classified as vehicles

“Automobile purchased for the purpose of transporting buyer to and from his place of employment was “consumer goods” as defined in UCC 9-109.” Mallicoat v Volunteer Finance & Loan Corp., 3 UCC Rep Serv 1035; 415 S.W.2d 347 (Tenn. App., 1966).

“The provisions of UCC 2-316 of the Maryland UCC do not apply to sales of consumer goods (a term which includes automobiles, whether new or used, that are bought primarily for personal, family, or household use).” Maryland Independent Automobile Dealers Assoc., Inc. v Administrator, Motor Vehicle Admin., 25 UCC Rep Serv 699; 394 A.2d 820, 41 Md App 7 (1978).

“An automobile was part of testatrix’ “household goods” within codicil.  In re Mitchell’s Will, 38 N.Y.S.2d 673, 674, 675 [1942].”  19A Words and Phrases – Permanent Edition (West) 512.  Cites Arthur v Morgan, supra.  “[T]he expression “personal effects” clearly includes an automobile[.]”  In re Burnside’s Will, 59 N.Y.S.2d 829, 831 (1945).  Cites Hillhouse, Arthur, and Mitchell’s Will, supra.  “[A] yacht and six automobiles were “personal belongings” and “household effects[.]””    In re Bloomingdale’s Estate, 142 N.Y.S.2d 781, 782 (1955).

 

CONCLUSION

Is an automobile always a vehicle (or motor vehicle)?  No.  This is a question of fact that turns on the use to which the automobile in question is put (i.e., either personal or commercial).  While the presumption of an automobile being a vehicle (or motor vehicle) is created by the owner of said automobile registering same with the state as a vehicle, this presumption may be overcome by an affirmative defense to the allegation of the automobile being a vehicle, baring any evidence to the contrary indicating commercial use.

 

Use defines Classification

Private Automobile is NOT required to be registered by Law The California Motor Vehicle Code, section 260: Private cars/vans etc. not in commerce / for profit, are immune to registration fees:

(a) A “commercial vehicle” is a vehicle of a type REQUIRED to be REGISTERED under this code”.

(b) “Passenger vehicles which are not used for the transportation of persons for hire, compensation or profit, and housecars, are not commercial vehicles”.

(c) “a vanpool vehicle is not a commercial vehicle.”

and; “A vehicle not used for commercial activity is a “consumer goods”, …it is NOT a type of vehicle required to be registered and “use tax” paid of which the tab is evidence of receipt of the tax.”  Bank of Boston vs Jones, 4 UCC Rep. Serv. 1021, 236 A2d 484, UCC PP 9-109.14.  And;  “It is held that a tax upon common carriers by motor vehicles is based upon a reasonable classification, and does not involve any unconstitutional discrimination, although it does not apply to private vehicles, or those used by the owner in his own business, and not for hire.”  Desser v. Wichita, (1915) 96 Kan. 820; Iowa Motor Vehicle Asso. v. Railroad Comrs., 75 A.L.R. 22.

“Thus self-driven vehicles are classified according to the use to which they are put rather than according to the means by which they are propelled.”  Ex Parte Hoffert, 148 NW 20.  And; “In view of this rule a statutory provision that the supervising officials “may” exempt such persons when the transportation is not on a commercial basis means that they “must” exempt them.”   State v. Johnson, 243 P. 1073; 60 C.J.S. section 94 page 581.

See New Jersey Motor Vehicle Code Chapter 3, Section 39:3-1.  Certain vehicles excepted from chapter which reads: “Automobile, fire engines and such self propelling vehicles as are used neither for the conveyance of persons for hire, pleasure or business, nor for the transportation of freights, such as steam road rollers and traction engines are excepted from the provisions of this chapter.”

See Annual Report of the Attorney General of the State of New York issued on July 21, 1909, ALBANY NEW YORK, pages 322-323 which reads: “There is NO requirement that the owner of a motor vehicle shall procure a license to run the same, nor is there any requirement that any other person shall do so, unless he proposes to become a chauffeur or a person conducting an automobile as an employee for hire or wages. Yours very truly, EDWARD R. O’MALLEY Attorney General.

See Laws of New York 1901, Chapter 53, page 1316, Section 169a.

See also Laws of Wyoming 2002, Motor Vehicle Code, page 142, Section 31-5- See RCW 5.24.010!

 

“Privately owned Buses not engaged in for hire Transportation are outside the jurisdiction of Division of Motor Vehicles enforcement of N.C. G.S. Article 17, Chapter 20***” 58 N.C.A.G. 1 (It follows that those Citizens not engaged in extraordinary use of the highway for profit or gain are likewise outside the jurisdiction of the Division of Motor Vehicles.)

 

“Since a sale of personal property is not required to be evidenced by any written instrument in order to be valid, it has been held in North Carolina that there may be a transfer of title to an automobile without complying with the registration statute which requires a transfer and delivery of a certificate of title.”  N.C. Law Review Vol. 32 page 545, Carolina Discount Corp. v. Landis Motor Co., 190 N.C. 157.

“The following shall be exempt from the requirements of registration and the certificate of title:
        1.) Any such vehicle driven or moved upon the highway in conformance with the provisions of this Article relating to manufacturers, dealers, or nonresidents.”
        2.) Any such vehicle which is driven or moved upon a highway only for the purpose of crossing such highway from one property to another. ****20-51(1)(2) (comment: not driven or moved
upon the highway for transporting persons or property for profit.) (Case note to North Carolina G.S. 12-3 “Statutory Construction”)

The California Constitution in Article I, Section 8 (and similar statements made in all other state constitutions), mandates that no one “be compelled to be a witness against himself,” is in agreement with the Supreme Court ruling in Haynes v. U.S., 390 U.S. 85, 88 S.Ct. 722, wherein the ruling was that to force anyone to register anything is communicative, and such communicative evidence is precluded by the 5th Amendment.

“No State government entity has the power to allow or deny passage on the highways, byways, nor waterways… transporting his vehicles and personal property for either recreation or business, but by being subject only to local regulation i.e., safety, caution, traffic lights, speed limits, etc. Travel is not a privilege requiring, licensing, vehicle registration, or forced insurances.” Chicago Coach Co. v. City of Chicago, 337 Ill. 200, 169 N.E. 22.

The fundamental Right to travel is NOT a Privilege, it’s a gift granted by your Maker, and restated by our founding fathers as Unalienable and cannot be taken by any Man / Government made Law or color of law known as a private Code (secret) or a Statute,

To Wit:

“As general rule men have natural right to do anything which their inclinations may suggest, if it be not evil in itself, and in no way impairs the rights of others.”  In Re Newman (1858), 9 C. 502.

“Traveling is passing from place to place–act of performing journey; and traveler is person who travels.”  In Re Archy (1858), 9 C. 47.

“Right of transit through each state, with every species of property known to constitution of United States, and recognized by that paramount law, is secured by that instrument to each citizen, and does not depend upon uncertain and changeable ground of mere comity.”  In Re Archy (1858), 9 C. 47.

“Traffic infractions are not a crime.” People v. Battle, 50 Cal. App. 3, step 1, Super, 123 Cal. Rptr. 636, 639.

 

“First, it is well established law that the highways of the state are public property, and their primary and preferred use is for private purposes, and that their use for purposes of gain is special and extraordinary which, generally at least, the legislature may prohibit or condition as it sees fit.”  Stephenson vs. Rinford, 287 US 251; Pachard vs Banton, 264 US 140, and cases cited; Frost and F. Trucking Co. vs. Railroad Commission, 271 US 592; Railroad commission vs. Inter-City Forwarding Co., 57 SW.2d 290; Parlett Cooperative vs. Tidewater Lines,  164 A. 313.

Freedom to travel is, indeed, an important aspect of the citizen’s “liberty“.  We are first concerned with the extent, if any, to which Congress has authorized its curtailment. (Road)  Kent v. Dulles, 357 U.S. 116, 127.

The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment. So much is conceded by the solicitor general.  In Anglo Saxon law that right was emerging at least as early as Magna Carta.  Kent v. Dulles, 357 U.S. 116, 125.

“The use of the highway for the purpose of travel and transportation is not a mere privilege but a common and fundamental right of which the public and individuals cannot rightfully be deprived.”

Chicago

Motor Coach v. Chicago, 337 Ill. 200, 169 NE 22, 66 ALR 834. Ligare Chicago, 139 Ill. 46, 28 NE 934. Boone v. Clark, 214 SW 607; 25 AM JUR (1st) Highways, Sec. 163. “The right of the citizen to travel upon the public highways and to transport his property thereon, either by a carriage or automobile, is not a mere privilege which a City may prohibit or permit at will, but a common right which he has under the right to Life, Liberty and the Pursuit of Happiness.” Thompson v. Smith 154 SE 579.

“Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with public interest and convenience.  Chicago Coach Co. v. City of Chicago, 337 Ill. 200, 169 N.E. 22, 206.

“… It is now universally recognized that the state does possess such power [to impose such burdens and limitations upon private carriers when using the public highways for the transaction of their business] with respect to common carriers using the public highways for the transaction of their business in the transportation of persons or property for hire.  That rule is stated as follows by the supreme court of the United States: ‘A citizen may have, under the fourteenth amendment, the right to travel and transport his property upon them (the public highways) by auto vehicle, but he has no right to make the highways his place of business by using them as a common carrier for hire.    Such use is a privilege which may be granted or withheld by the state in its discretion, without violating either the due process clause or the equal protection clause.’  (Buck v. Kuykendall, 267 U. S. 307 [38 A. L. R. 286, 69 L. Ed. 623, 45 Sup. Ct. Rep. 324].)

“The right of a citizen to travel upon the highway and transport his property thereon in the ordinary course of life and business differs radically an obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage coach or omnibus.  The former is the usual and ordinary right of a citizen, a right common to all; while the latter is special, unusual and extraordinary.  As to the former, the extent of legislative power is that of regulation; but as to the latter its power is broader; the right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature.  This distinction, elementary and fundamental in character, is recognized by all the authorities.”

In   Thompson v. Smith, Chief of Police. Supreme Court of Appeals of Virginia. 155 Va. 367, 154 S.E. 579, 71 A.L.R. 604. Sept. 12, 1930 it states:

Constitutional law:  Citizen’s right to travel upon public highways and transport his property thereon in ordinary course of life and business is common right.  The right of a citizen so to do is that which he has under his right to enjoy life and liberty, to acquire property, and to pursue happiness and safety.

Automobiles, Highways:     Citizen’s right to travel upon public highways includes right to use usual conveyances of time, including horse-drawn carriage, or automobile, for ordinary purposes of life and business.

Injunction:   Injunction lies against enforcement of void statute or ordinance, where legal remedy is not as complete or adequate as injunction, or where threatened or attempted enforcement will do irreparable injury to person in interfering with exercise of common fundamental personal right.  By “irreparable injury” is meant an injury of such a nature that fair and reasonable redress may not be had in a court of law and that to refuse the injunction would be a denial of justice.

Constitutional Law § 101 – right to travel – 5. The nature of the Federal Union and constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of the United States uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. 6. Although not explicitly mentioned in the Federal Constitution, the right freely to travel from one state to another is a basic right

License Not Legally Required to Travel – 72 hr. Right of Rescission – No License Excuse, provided you have a passport handy – read here

Under the US Constitution.

Constitutional Law § 101 – law chilling assertion of rights – 7.  If a law has no other purpose than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it is patently unconstitutional.  Shapiro v Thompson, 394 US 618, 22 L Ed 2d 600, 89 S Ct 1322.

So with all of that in mind, cite/deliver the cases above and

you have given the agency, etc. knowledge!

Under USC Title 42 §1986. Action for neglect to prevent …,  it states: Every person who, having knowledge that any wrongs conspired or to be done… and having power to prevent or aid in preventing … Neglects or refuses so to do … shall be liable to the party injured…  and; The means of “knowledge”, especially where it consists of public record is deemed in law to be “knowledge of the facts“.  As the means of “knowledge” if it appears that the individual had notice or information of circumstances which would put him on inquiry, which, if followed, would lead to “knowledge”, or that the facts were presumptively within his knowledge, he will have deemed to have had actual knowledge of the facts and may be subsequently liable for any damage or injury.  You, therefore, have been given “knowledge of the facts” as it pertains to this conspiracy to commit a fraud against me.

I state now that I will NOT waive any fundamental Rights as:
“waivers of fundamental Rights must be knowing, intentional, and voluntary acts, done with sufficient awareness of the relevant circumstances and likely consequences. U.S. v. Brady, 397 U.S. 742 at 748 (1970);  U.S.v. O’Dell, 160 F.2d 304 (6th Cir. 1947)”.

And that the agency committed fraud, deceit, coercion, willful intent to injure another, malicious acts, RICO activity and conspired by; Unconscionable “contract” – “One which no sensible man not under delusion, or duress, or in distress would make, and such as no honest and fair man would accept.”; Franklin Fire Ins. Co.  v.  Noll, 115 Ind. App. 289, 58 N.E.2d 947, 949, 950.  and;  “Party cannot be bound by contract that he has not made or authorized.”  Alexander v. Bosworth (1915), 26 C.A. 589, 599, 147 P.607.

 

And therefore; “Failure to reveal the material facts of a license or any agreement is immediate grounds for estoppel.”  Lo Bue v. Porazzo, 48 Cal.App.2d 82, 119, p.2d 346, 348.

The fraudulently “presumed” quasi-contractus that binds the Declarant with the CITY/STATE agency, is void for fraud ab initio, since the de facto CITY/STATE cannot produce the material fact (consideration inducement) or the jurisdictional clause (who is subject to said statute).  (SEE:  Master / Servant [Employee] Relationship — C.J.S.)  — “Personal, Private, Liberty”-

Since the “consideration” is the “life blood” of any agreement or quasi-agreement, (contractus) “…the absence of such from the record is a major manifestation of want of jurisdiction, since without evidence of consideration there can be no presumption of even a quasi-contractus.   Such is the importance of a “consideration.”  Reading R.R. Co.  v.  Johnson, 7 W & S (Pa.) 317

So without a Contract (no recording of the M.C.O.) or consideration there is no DMV / government etc. jurisdiction as the property does not “reside” in the colorable fictitious territory as evidenced in Supreme Court cite below:

In Wheeling Steel Corp v. Fox , 298 U.S. 193 (1936) it states:  Property taxes can be on tangibles or intangibles.   In order to have a  situs for taxation (a basis for imposing the tax), tangible property (physical property) must reside within the territorial jurisdiction of the taxing authority, and intangibles…

Under USC Title 42 §1982. Property rights of citizens …, further evidences the above position that the City or State cannot take land because they DO NOT have Jurisdiction.                         It states that federal or state governments / agencies MUST have a monetary or proprietary interest in your real private property in order to have jurisdiction over it (if your land has no government grant/funding or is not a subsidized government project, then agencies have neither).                         DEMAND any public servant/said agencies to provide the legal document that allows any federal or state agency to supersede and/or bypass Title 42 USC §1982 and/or §1441.   Title 42 §1983. Civil action for deprivation of rights …, further  protects Declarant’s private property.

The State cannot diminish rights of the people.  Hurtado v. California, 110 U.S. 516.

“To say that one may not defend his own property is usurpation of power by legislature.”  O’Connell v. Judnich (1925), 71 C.A.386, 235 664.

“A state MAY NOT impose a charge for the enjoyment of a right granted (sic) by the Federal Constitution.” MURDOCK v PENNSYLVANIA, 319 US 105.

“… THE POWER TO TAX INVOLVES THE POWER TO DESTROY”.  McCULLOUGH v MARYLAND, 4 Wheat 316.

“All subjects over which the sovereign power of the state extends are objects of taxation, but those over which it does not extend are exempt from taxation. This proposition may almost be pronounced as self-evident.  The sovereignty of the state extends to everything which exists by its authority or its permission.” McCullough v Maryland, 17 U.S. [4 Wheat] 316 (1819).

 

To be that statutes which would deprive a citizen of the rights of person or property without a regular trial, according to the course and usage of  common law, would not be the law of the land. (Jury) Hoke v. Henderson, 15, N.C. 15 25 AM Dec 677.

U.S. adopted Common laws of England with the Constitution. Caldwell vs. Hill, 178 SE 383 (1934).

“The phrase ‘common law‘ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence.”  Parsons v. Bedford, et al, 3 Pet 433, 478-9.

“If the  common law can try the cause, and give full redress, that alone takes away the admiralty jurisdiction.” Ramsey v. Allegrie, supra, p. 411.

Inferior Courts – The term may denote any court subordinate to the chief tribunal in the particular judicial system;  but it is commonly used as the designation of a court of  special,  limited, or  statutory jurisdiction, whose  record must show the  existence and  attaching of jurisdiction in any given case, in order to give  presumptive validity to its  judgment.  In re Heard’s Guardianship, 174 Miss. 37, 163, So. 685.

The high Courts have further decreed, that Want of Jurisdiction makes “…all acts of judges, magistrates, U.S. Marshals, sheriffs, local police, all void and not just voidable.”   Nestor  v.  Hershey,  425 F2d 504.

 

Void Judgment –  “One which has no legal force or effect, invality of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally.   Reynolds   v.Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092.

Voidable Judgment – “One apparently valid, but in truth wanting in some material respect.”  City of Lufkin v. McVicker, Tex.Civ.App., 510 S.W. 2d 141, 144.

 

Property MUST be devoted / pledged to the public with your consent and being fully compensated for such

“… In one of the so-called elevator cases, that of Munn v. Illinois, 94 U. S. 113, [24 L. Ed. 77], it is said: ‘When, therefore, one devotes his property to a use in which the public have an interest, he in effect grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.’  But so long as he uses his property for private use, and in the absence of devoting it to public use, the public has no interest therein which entitles it to a voice in its control.  Other case to the same effect are Budd v. New York, 143 U. S. 517, [36 L. Ed. 247, 12 Sup. Ct. Rep. 468];  Weems Steamboat Co. v. People‘s Co., 214 U. S. 345, [16 Ann. Cas. 1222, 53 L. Ed. 1024, 29 Sup. Ct. Rep. 661]; Monongahela Nav. Co. v. United States, 148 U. S. 336, [37 L. Ed. 463, 13 Sup. Ct. Rep. 622]; and Del Mar Water Co. v. Eshleman, 167 Cal. 666, [140 Pac. 591, 948].  Indeed, our attention is directed to no authority in this state or elsewhere holding otherwise.” Associated etc. Co. v. Railroad Commission  (1917) 176 Cal. 518, 526.

“… That subjecting petitioners’ property to the use of the public as common carriers constitutes a taking of the same, admits of no controversy.  ‘Whenever a law deprives the owner of the beneficial use and free enjoyment of his property, or imposes restraints upon such use and enjoyment that materially affect its value, without legal process or compensation, it deprives him of his property within the meaning of the constitution. … It is not necessary, in order to render the statute obnoxious to the restraints of the constitution, that it must in terms or effect authorize the actual physical taking of the property or the thing itself, so long as it affects its free use and enjoyment, or the power of disposition at the will of the owner.’  (Forster v. Scott,136 N. Y. 577, [18 L. R. A. 543, 32 N. E. 976]; Monongahela Nav.Co. v. United States, 148 U. S. 312, 336, [37 L. Ed. 463, 13 Sup. Ct. Rep. 622]. … Mr. Lewis in his work on Eminent Domain, third edition, section 11, says: ‘A law which authorizes the taking of private property without compensation, … cannot be considered as due process of law in a free government.’  (Chicago etc, R. R. Co. v. Chicago, 166 U. S. 226, [41 L. Ed. 979, 17 Sup. Ct. Rep. 581].” Associated Co. v. Railroad Commission (1917) 176 Cal. 518, 528-530.

It is beyond the power of a State by legislation fiat to convert property used exclusively in the business of a private carrier, into a public utility, or to make the owner a public carrier, for that would be taking private property for public use without just compensation which no State can do consistently with the due process of law clause of the 14th Amendment.  (See police power) Producers Transportation Co. v. RR Commission, 251 U.S. 228, 230; Wolff Co. v. Duke, 266 U.S. 570, 578.

 

The binding shackles of Government is the Constitution, to wit:

If the state were to be given the power to destroy rights through taxation, then the framers of our constitutions wrote said documents in vain. A republic is not an easy form of government to live under, and when the responsibility of citizenship is evaded, democracy decays and authoritarianism takes over.  Earl Warren, “A Republic, If You Can Keep It”, p 13.

It is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department.  Mugler v. Kansas, 123 U.S. 623, 662.

An unconstitutional law is not a law, it confers no rights, imposes no duties, and affords no protection. Norton vs. Shelby County, 118 US 425.

“Primacy of position in our state constitution is accorded the Declaration of Rights; thus emphasizing the importance of those basic and inalienable rights of personal liberty and private property which are thereby reserved and guaranteed to the people and protected from arbitrary invasion or impairment from any governmental quarter. The Declaration of Rights constitutes a limitation upon the powers of every department of the state government. State ex rel. Davis v. Stuart. 64 A.L.R. 1307, 97 Fla. 69, 120 So. 335.

“The rights of the individual are not derived from governmental agencies, either municipal, state, or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. City of Dallas, et al. v. Mitchell, 245 S. W. 944, 945-46 (1922).

The US Constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state.   The constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. Ellingham v. Dye, 178 Ind.  336; NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92;  Sage v. New York, 154 NY 61; 47 NE 1096.

“Owner has constitutional right to use and enjoyment of his property.” Simpson v. Los Angeles (1935), 4 C.2d 60, 47 P.2d 474.

“We find it intolerable that one constitutional right should have to be surrendered in order to assert another”. SIMMONS v US, supra.

“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Miranda vs. Arizona, 384 US 436 p. 491.

“The claim and exercise of a Constitutional right cannot be converted into a crime.” Miller v. U.S. 230 F 2d 486, 489.

History is clear that the first ten amendments to the Constitution were adopted to secure certain common law rights of the people, against invasion by the Federal Government.”                                Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA.

Economic necessity cannot justify a disregard of cardinal constitutional guarantee.  Riley v. Certer, 165 Okal. 262; 25 P.2d 666; 79 ALR 1018.

When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. 459.

“The ‘liberty’ guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men.” Myer v. Nebraska, 262 U .S. 390, 399; United States v. Kim Ark, 169 U.S. 649, 654.

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County, 118 US 425 p. 442.  “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”  16 Am Jur 2nd, Sec 177 late 2d, Sec 256.

All laws which are repugnant to the Constitution are null and void. Chief Justice Marshall, Marbury vs Madison, 5, U.S. (Cranch) 137, 174, 176 (1803).

It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used.   When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases.  We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power.  Cook vs Iverson, 122, N.M. 251.

“Right of protecting property, declared inalienable by constitution, is not mere right to protect it by individual force, but right to protect it by law of land, and force of body politic.” Billings v. Hall (1857), 7 C. 1.

“Constitution of this state declares, among inalienable rights of each citizen, that of acquiring, possessing and protecting property.  This is one of primary objects of government, is guaranteed by constitution, and cannot be impaired by legislation.”  Billings v. Hall (1857), 7 C. 1.

State Constitution – “The state constitution is the mandate of a sovereign people to its servants and representatives.  Not one of them has a right to ignore or disregard these mandates…”  John F. Jelko Co. vs. Emery, 193 Wisc. 311;  214 N.W. 369, 53 A.L.R., 463;   Lemon vs. Langlin, 45 Wash. 2d 82, 273 P.2d 464.

 

The People are the Sovereign!

People are supreme, not the state.  Waring vs. the Mayor of Savannah, 60 Georgia at 93.

The people of the State do not yield their sovereignty to the agencies which serve them.  The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created. (Added Stats. 1953, c. 1588, p.3270, sec. 1.)

The people are the recognized source of all authority, state or municipal, and to this authority it must come at last, whether immediately or by circuitous route. Barnes v. District of Columbia, 91 U.S. 540, 545 [23: 440, 441]. p 234.

“the government is but an agency to the state,” — the state being the sovereign people.      State v. Chase, 175 Minn, 259, 220 N.W. 951, 953.

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.  And the law is the definition and limitation of power.

“…The Congress cannot revoke the Sovereign power of the people to override their will as thus declared.”  Perry v. United States, 294 U.S. 330, 353 (1935). “The Doctrine of Sovereign Immunity is one of the Common-Law immunities and defenses that are available to the Sovereign…” Citizen of Minnesota. Will v. Michigan Dept. of State Police, (1988) 491 U.S. 58, 105 L.Ed. 2d. 45, 109 S.Ct. 2304. “The people of the state, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the king by his own prerogative.” Lansing v. Smith, (1829) 4 Wendell 9, (NY).

 

Private Corporate State / Municipality Policy Enforcement Officer
  a.k.a Police Officer Duties and limitations of power

“Nothing is gained in the argument by calling it ‘police power.’” Henderson v. City of New York, 92 U.S. 259, 2771 (1875); Nebbia v. New York, 291 U.S. 501 (1934).

“An officer who acts in violation of the Constitution ceases to represent the government.” Brookfield Const. Co. v. Stewart, 284 F.Supp. 94.

Failure to obey the command of a police officer constitutes a traditional form of breach of the peace.  Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the constitution.  Wright v. Georgia, 373 U.S. 284, 291-2.

That an officer or employee of a state or one of its subdivisions is deemed to be acting under “color of law” as to those deprivations of right committed in the fulfillment of the tasks and obligations assigned to him. Monroe v. Page, 1961, 365 U.S. 167.         (Civil law)

Actions by state officers and employees, even if unauthorized or in excess of authority, can be actions under “color of law.”    Stringer v. Dilger, 1963, Ca. 10 Colo., 313 F.2d 536.  (Civil law)

“The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution.” Bacahanan vs. Wanley, 245 US 60;  Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613.

  •   Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

 

* NO ID . ID requirments – no crime no need, innocent free man

“With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be overthrown or impaired by any state police authority.” Donnolly vs. Union Sewer Pipe Co., 184 US 540; Lafarier vs. Grand Trunk R.R. Co., 24 A. 848; O’Neil vs. Providence Amusement Co., 108 A. 887.

When officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment… The Fourth Amendment, of course, applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest… Whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person, and the Fourth Amendment requires that the seizure be ‘reasonable’.  *  “But even assuming that purpose (prevention of crime) is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it.”

“The application of…(a code)…to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged, or had engaged, in criminal conduct.   Accordingly, appellant may not be

NO ID – Punished for refusing to identify himself, and the conviction is reversed.”  (Probable cause)  Brown v. Texas, 443 U.S. 47, (1979)

* “Traffic infractions are not a crime.” People v. Battle

“To this end, the Fourth Amendment requires that a seizure must be based on specific objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.

 

 

Government / Public Servants / Officers / Judges Not Immune from suit!

“The officers of the law, in the execution of process, are required to know the requirements of the law, and if they mistake them, whether through ignorance or design, and anyone is harmed by their error, they must respond in damages.” Roger v. Marshall (United States use of Rogers v. Conklin), 1 Wall. (US) 644, 17 Led 714.

“It is a general rule that an officer, executive, administrative, quasi-judicial, ministerial, or otherwise, who acts outside the scope of his jurisdiction, and without authorization of law may thereby render himself amenable to personal liability in a civil suit.”  Cooper v. O`Conner, 69 App DC 100, 99 F (2d)

“Public officials are not immune from suit when they transcend their lawful authority by invading constitutional rights.      “AFLCIO v. Woodard, 406 F 2d 137 t.

“Immunity fosters neglect and breeds irresponsibility while liability promotes care and caution, which caution and care is owed by the government to its people.”   (Civil Rights) Rabon vs Rowen Memorial Hospital, Inc. 269 N.S. 1, 13, 152 SE 1 d 485, 493.

Government Immunity – “In  Land  v.  Dollar, 338 US 731 (1947), the court noted, “that when the government entered into a commercial field of activity, it left immunity behind.”  Brady  v.  Roosevelt, 317 US 575 (1943);  FHA  v.  Burr, 309 US 242 (1940);  Kiefer  v.  RFC, 306 US 381 (1939).

The high Courts, through their citations of authority, have frequently declared,  that  “…where  any  state  proceeds  against  a  private individual in a judicial forum it is well settled that the state, county, municipality, etc. waives any immunity to counters, cross claims and complaints, by direct or collateral means regarding the matters involved.”  Luckenback v. The Thekla, 295 F 1020, 226 Us 328; Lyders v. Lund, 32 F2d 308;

“When  enforcing mere statutes, judges of all courts do not act judicially (and thus are not protected by “qualified” or “limited immunity,” – SEE: Owen v. City, 445 U.S. 662;  Bothke  v.  Terry, 713 F2d 1404)

– – “but merely act as an extension as an agent for the involved  agency  —  but  only  in  a  “ministerial”  and  not  a “discretionary capacity…”  Thompson  v.  Smith, 154 S.E. 579, 583; Keller v. P.E., 261 US 428; F.R.C. v. G.E., 281, U.S. 464.

Thompson v. Clark 2022 Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Immunity for judges does not extend to acts which are clearly outside of their jurisdiction.  Bauers v. Heisel, C.A. N.J. 1966, 361 F.2d 581, Cert. Den. 87 S.Ct. 1367, 386 U.S. 1021, 18 L.Ed. 2d 457 (see also Muller v. Wachtel, D.C.N.Y. 1972, 345 F.Supp. 160;  Rhodes v. Houston, D.C. Nebr. 1962, 202 F.Supp. 624 affirmed 309 F.2d 959, Cert. den 83 St. 724, 372 U.S. 909, 9 L.Ed. 719, Cert. Den 83 S.Ct. 1282, 383 U.S. 971, 16 L.Ed. 2nd 311, Motion denied 285 F.Supp. 546).

“Judges not only can be sued over their official acts, but could be held liable for injunctive and declaratory relief and attorney’s fees.” Lezama v. Justice Court, A025829.

“The immunity of judges for acts within their judicial role is beyond cavil.” Pierson v. Ray, 386 U.S. 547 (1957). Keyword within their role, outside of that role they are not.

At least seven circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where in their judgment an injunction against a judicial officer is necessary to prevent irreparable injury to a petitioner’s constitutional rights, courts will grant that relief.  “There is no common law judicial immunity.” Pulliam v. Allen, 104S.Ct. 1970; cited in Lezama v. Justice Court, A025829.

“Judges, members of city council, and police officers as well as other public officials, may utilize good faith defense of action for damages under 42-1983, but no public official has absolute immunity from suit under the 1871 civil rights statute.” (Samuel vs University of Pittsburg, 375 F.Supp. 1119, ‘see also, White vs Fleming 374 Supp. 267.)

42 U.S. Code § 1983 – Civil action for deprivation of rights – read here

9.3 Section 1983 Claim Against Defendant in Individual Capacity —Elements and Burden of Proof – click here to learn requirements

California Civil Code Section 52.1 – Interference by threat, intimidation or coercion with exercise or enjoyment of individual rights read here

 

TAKE DUE NOTICE ALL GOVERNMENT OFFICIALS, SERVANTS, JUDGES, LAYERS, CLERKS, EMPLOYEES:

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.”   In re McCowan (1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.”  San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107;  San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.”  Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

 

Jurisdiction challenged to all, at any and all times

“Judge acted in the face of clearly valid statutes or case law expressly depriving him of (personal) jurisdiction would be liable.” Dykes v. Hosemann, 743 F.2d 1488 (1984).  “In such case the judge has lost his judicial function, has become a mere private person, and is liable as a trespasser for damages resulting from his unauthorized acts.”

“Where there is no jurisdiction there is no judge; the proceeding is as nothing. Such has been the law from the days of the Marshalsea, 10 Coke 68;
also Bradley v. Fisher, 13 Wall 335,351.” Manning v. Ketcham, 58 F.2d 948.

“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley v.Fisher,13 Wall 335, 351, 352.

 

AT LAST

“But, in fact and in law, such statutes are intended to be applied to those who are here as “residents” in this State under the Interstate Commerce Clause of the Federal Constitution and the so- called Fourteenth Amendment.”  United States v United Mine Workers ofAmerica, (1947) 67 S.Ct. 677, 686, 330 U.S. 258.

Notice to all whom these presents may come:

“If I am here at all I am so as a man; I am NOT here as a resident of any State (Nation), nor am I of or “in this state”, nor am I a [statutory] “citizen of the United States” (in Congress assembled) as ALL are fictions/creations of government and therefore and as such no statutes apply to Me as evidenced in above cases. I am a Creature of Nature (the Creator) and therefore I am a transient foreigner by Nature while traveling through Life I am here as a in intinere, as a neutral, for a short time, on my way to the greater beyond, a steward of my father’s land and wishes. My documents of “in intinere” standing are recorded for all to see.” See:  Dred Scott v. Sanford, 60 US (19 How.) 393, 595 (1857) Justice Curtis, S.Ct.

 

Notice of Full Faith and Credit

We understand America has gone into LEFT FIELD…. DON’T WORRY the RIGHT WAY…. WILL ALWAY BE RIGHT NEVER WRONG, AND WE KEEP A COPY OF THE CONSTITUION IN CASE SOMEONE NEEDS TO SEE THE RIGHT WAY OUR FOREFATHERS SET FORTH TO ENSURE YOU WOULD HAVE RIGHTS, ITS OUR DUTY AS CITIZENS TO STUDY OUR LAWS AND REBUKE THE ONES THAT GO AGAINST GOD OR THE CONSTITUTION  click here to read the whole US Constitution with the Bill of Rights  all the amendments to the US constitution are listed here

The laws of nature are the laws of God, whose authority can be superseded by no power on earth.  A legislature must not obstruct our obedience to him from whose punishments they cannot protect us.  All human constitutions which contradict his cannot protect us.  All human constitutions which contradict his (God’s) laws, we are in conscience bound to disobey.  1772, Robin v. Hardaway, 1 Jefferson 109. Supreme court cases from digging around Robin v. Hardaway 1790. Biblical Law at “Common Law” supersedes all laws, and “Christianity is custom, custom is Law.”

(I, Me, Myself am a “state”, with standing, standing in “original jurisdiction” know as the common law, Gods Law, a neutral traveling in itinerary, demanding all of my rights under God’s Natural Law, recorded in part in the Bible, which law is recognized in US Public Law 97-280 as “the word of God and all men are admonished to learn and apply it” so I demand anyone and everyone to notice God’s Laws, which are My Makers Laws and therefore My Laws!)

  • – Article 1 of the Bill of Rights – guarantees freedom of religion-
    Constitution for the United States of America ARTICLE IV, sect. 1, Full faith and credit among states. (Self-executing constitutional provisions) Section 1.  Full faith and Credit shall be given in each state to the public Acts, Records, and judicial Proceedings of every other state.

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Note: Emphasis added to cites, mine!

cited https://famguardian.org/Subjects/Freedom/Rights/Travel/no-law-requires-you-to-record-pledge-your-private-automobile1.pdf or download it here

 

 THE FOLLOWING PAGE BELOW ALSO HAVE A PLETHORA OF SUPREME COURT RULINGSON THIS GOD GIVEN RIGHTS, SEARCH AND PROPERTY RIGHTS BELOW

Statutes (Attempting To Sell The Statute) part 2

Supreme court cases from digging around Robin v. Hardaway 1790

 

cited https://goodshepherdmedia.net/wp-content/uploads/2022/12/no-law-requires-you-to-record-pledge-your-private-automobile1.pdf

]]> Mathews v. Eldridge – Due Process – 5th & 14th Amendment https://goodshepherdmedia.net/mathews-v-eldridge-due-process-5th-14th-amendment/ Tue, 14 Dec 2021 02:57:53 +0000 https://goodshepherdmedia.net/?p=5405

Mathews Test – 3 Part Test – Amdt5.4.5.4.2 Mathews Test

In reaching its decision, the majority emphasized that “due process is flexible and calls for such procedural protections as the particular situation demands.” According to the Court, determining the constitutional sufficiency of administrative procedures prior to the initial termination of benefits and pending review requires consideration of three factors:

  1. the private interest that will be affected by the official action;
  2. the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and
  3. the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.

 

Mathews v. Eldridge, 424 U.S. 319 (1976)

Due Process

Mathews v. Eldridge is a case decided on February 24, 1976, by the United States Supreme Court in which the court held that the termination of disability benefits prior to an evidentiary hearing does not violate an individual’s due process rights under the Constitution. In the case opinion, the court developed a three-part balancing test, known as the Mathews v. Eldridge test, for lower courts to apply when determining whether or not an individual has received due process during administrative proceedings.[1][2]

HIGHLIGHTS
  • The case: George Eldridge received notice of the upcoming termination of his disability benefits prior to the opportunity for an evidentiary hearing. Eldridge argued that the termination of his benefits without a hearing violated his due process rights.
  • The issue: Does the absence of an evidentiary hearing prior to the termination of disability benefits violate an individual’s due process rights?

Why it matters: The court developed a three-part balancing test, known as the Mathews v. Eldridge test, for lower courts to apply when determining whether or not an individual has received due process during administrative proceedings. Courts must consider (1) the private interest at stake, (2) the effect on the private interest in the event of an erroneous determination as well as the value of any additional procedural safeguards, and (3) the government’s interest, including the potential administrative burden of additional procedural safeguards.[2][3]

Case Commentary

This three-factor test became the linchpin of future Court jurisprudence in the area of procedural due process. It has surfaced more recently in cases involving the detention of enemy combatants after the terrorist attacks of September 11, 2001.

Primary Holding

Procedural due process must be evaluated by using a balancing test that accounts for the interests of the affected individual, the interest of the government in limiting procedural burdens, and the risk of erroneously curtailing individual interests under the existing procedures, as well as how much additional procedures would help reduce the risk of error.

Facts

George Eldridge, a recipient of Social Security benefits, did not receive a hearing before the Social Security Administration (SSA) terminated his benefits. The agency used its customary procedures, and Eldridge failed to exhaust his post-termination administrative remedies. He argued that the lack of a pre-termination hearing was unconstitutional under the procedural due process protections of the Fourteenth Amendment, and the lower federal courts agreed with him.

Opinions

Majority

  • Lewis Franklin Powell, Jr. (Author)
  • Warren Earl Burger
  • Potter Stewart
  • Byron Raymond White
  • Harry Andrew Blackmun
  • William Hubbs Rehnquist

Powell ruled that Social Security benefits give rise to a property right, which means that procedural due process protections apply. However, he found that a pre-termination hearing is not necessary, a surprising result in view of the Court’s decision in Goldberg v. Kelly (1970), which found that a pre-termination hearing was required before the termination of welfare benefits. Powell refined the analysis in the Goldberg opinion, identifying the three main factors that courts should consider in cases involving procedural due process. First, they must determine the strength of the individual interest in retaining property and the degree to which the individual would be harmed by being deprived of it. Courts then should consider the strength of the government interest in the efficient resolution of disputes and the smooth operation of the administrative process, as well as any other government interests that might be implicated. The final factor to weigh is the risk of error under the current procedures and the extent to which additional procedures might reduce the risk of error.

Dissent

  • William Joseph Brennan, Jr. (Author)
  • Thurgood Marshall

It is worth noting that Brennan wrote the majority opinion in Goldberg, which articulated a broader understanding of individual rights under procedural due process.

 

U.S. Supreme Court

Mathews v. Eldridge, 424 U.S. 319 (1976)

Mathews v. Eldridge

No. 74-204

Argued October 6, 1975

Decided February 24, 1976

424 U.S. 319

 

Syllabus

In order to establish initial and continued entitlement to disability benefits under the Social Security Act (Act), a worker must demonstrate that, inter alia, he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . .” The worker bears the continuing burden of showing, by means of “medically acceptable . . . techniques” that his impairment is of such severity that he cannot perform his previous work or any other kind of gainful work. A state agency makes the continuing assessment of the worker’s eligibility for benefits, obtaining information from the worker and his sources of medical treatment. The agency may arrange for an independent medical examination to resolve conflicting information. If the agency’s tentative assessment of the beneficiary’s condition differs from his own, the beneficiary is informed that his benefits may be terminated, is provided a summary of the evidence, and afforded an opportunity to review the agency’s evidence. The state agency then makes a final determination, which is reviewed by the Social Security Administration (SSA). If the SSA accepts the agency determination, it gives written notification to the beneficiary of the reasons for the decision and of his right to de novo state agency reconsideration. Upon acceptance by the SSA, benefits are terminated effective two months after the month in which recovery is found to have occurred. If, after reconsideration by the state agency and SSA review, the decision remains adverse to the recipient, he is notified of his right to an evidentiary hearing before an SSA administrative law judge. If an adverse decision results, the recipient may request discretionary review by the SSA Appeals Council, and finally may obtain judicial review. If it is determined after benefits are terminated that the claimant’s disability extended beyond the date of cessation initially established, he is entitled to retroactive payments. Retroactive adjustments are also made for overpayments. A few years after respondent was first awarded disability benefits, he received and completed a questionnaire

Page 424 U. S. 320

from the monitoring state agency. After considering the information contained therein and obtaining reports from his doctor and an independent medical consultant, the agency wrote respondent that it had tentatively determined that his disability had ceased in May, 1972, and advised him that he might request a reasonable time to furnish additional information. In a reply letter, respondent disputed one characterization of his medical condition and indicated that the agency had enough evidence to establish his disability. The agency then made its final determination reaffirming its tentative decision. This determination was accepted by the SSA, which notified respondent in July that his benefits would end after that month and that he had a right to state agency reconsideration within six months. Instead of requesting such reconsideration, respondent brought this action challenging the constitutionality of the procedures for terminating disability benefits and seeking reinstatement of benefits pending a hearing. The District Court, relying in part on Goldberg v. Kelly, 397 U. S. 254, held that the termination procedures violated procedural due process and concluded that prior to termination of benefits respondent was entitled to an evidentiary hearing of the type provided welfare beneficiaries under Title IV of the Act. The Court of Appeals affirmed. Petitioner contends, inter alia, that the District Court is barred from considering respondent’s action by Weinberger v. Salfi, 422 U. S. 749, which held that district courts are precluded from exercising jurisdiction over an action seeking a review of a decision of the Secretary of Health, Education, and Welfare regarding benefits under the Act except as provided in 42 U.S.C. § 405(g), which grants jurisdiction only to review a “final” decision of the Secretary made after a hearing to which he was a party.

Held:

1. The District Court had jurisdiction over respondent’s constitutional claim, since the denial of his request for benefits was a final decision with respect to that claim for purposes of § 405(g) jurisdiction. Pp. 424 U. S. 326-332.

(a) The § 405(g) finality requirement consists of the waivable requirement that the administrative remedies prescribed by the Secretary be exhausted and the nonwaivable requirement that a claim for benefits shall have been presented to the Secretary. Respondent’s answers to the questionnaire and his letter to the state agency specifically presented the claim that his benefits should not be terminated because he was still disabled, and thus satisfied the nonwaivable requirement. Pp. 424 U. S. 328-330.

Page 424 U. S. 321

 

(b) Although respondent concededly did not exhaust the Secretary’s internal review procedures, and ordinarily only the Secretary has the power to waive exhaustion, this is a case where the claimant’s interest in having a particular issue promptly resolved is so great that deference to the Secretary’s judgment is inappropriate. The facts that respondent’s constitutional challenge was collateral to his substantive claim of entitlement, and that (contrary to the situation in Salfi) he colorably claimed that an erroneous termination would damage him in a way not compensable through retroactive payments warrant the conclusion that the denial of his claim to continued benefits was a sufficiently “final decision” with respect to his constitutional claim to satisfy the statutory exhaustion requirement. Pp. 424 U. S. 330-332.

2. An evidentiary hearing is not required prior to the termination of Social Security disability payments, and the administrative procedures prescribed under the Act fully comport with due process. Pp. 424 U. S. 332-349.

(a) “[D]ue process is flexible and calls for such procedural protections as the particular situation demands,” Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 481. Resolution of the issue here involving the constitutional sufficiency of administrative procedures prior to the initial termination of benefits and pending review, requires consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. Pp. 424 U. S. 332-335.

(b) The private interest that will be adversely affected by an erroneous termination of benefits is likely to be less in the case of a disabled worker than in the case of a welfare recipient, like the claimants in Goldberg, supra. Eligibility for disability payments is not based on financial need, and, although hardship may be imposed upon the erroneously terminated disability recipient, his need is likely less than the welfare recipient. In view of other forms of government assistance available to the terminated disability recipient, there is less reason than in Goldberg to depart from the ordinary principle that something less than an evidentiary hearing is sufficient prior to adverse administrative action. Pp. 424 U. S. 339-343.

(c) The medical assessment of the worker’s condition implicates

Page 424 U. S. 322

a more sharply focused and easily documented decision than the typical determination of welfare entitlement. The decision whether to discontinue disability benefits will normally turn upon “routine, standard, and unbiased medical repots by physician specialists,” Richardson v. Perales, 402 U. S. 389, 402 U. S. 40. In a disability situation, the potential value of an evidentiary hearing is thus substantially less than in the welfare context. Pp. 424 U. S. 343-345.

(d) Written submissions provide the disability recipient with an effective means of communicating his case to the decisionmaker. The detailed questionnaire identifies with particularity the information relevant to the entitlement decision. Information critical to the decision is derived directly from medical sources. Finally, prior to termination of benefits, the disability recipient or his representative is afforded full access to the information relied on by the state agency, is provided the reasons underlying its tentative assessment, and is given an opportunity to submit additional arguments and evidence. Pp. 424 U. S. 345-346.

(e) Requiring an evidentiary hearing upon demand in all cases prior to the termination of disability benefits would entail fiscal and administrative burdens out of proportion to any countervailing benefits. The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances, and here, where the prescribed procedures not only provide the claimant with an effective process for asserting his claim prior to any administrative action, but also assure a right to an evidentiary hearing, as well as subsequent judicial review before the denial of his claim becomes final, there is no deprivation of procedural due process. Pp. 424 U. S. 347-349.

493 F.2d 1230, reversed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 424 U. S. 349. STEVENS, J., took no part in the consideration or decision of the case.

Page 424 U. S. 323

 

Conclusion

Sort: 

No. In an 6-to-2 decision, the Court held that the initial termination of Eldridge’s benefits without a hearing did not violate due process. The Court noted that due process was “flexible” and called for “such procedural protections as the particular situation demands.” The Court found that there were numerous safeguards to prevents errors in making decisions to terminate disability benefits and argued that “[a]t some point the benefit or an additional safeguard to the individual affected by the administrative action and to society, in terms of increased assurance that the action is just, may be outweighed by the cost.”

cited https://supreme.justia.com/cases/federal/us/424/319/

cited https://www.oyez.org/cases/1975/74-204

cited https://ballotpedia.org/Mathews_v._Eldridge#:~:text=Courts%20must%20consider%20(1)%20the,burden%20of%20additional%20procedural%20safeguards.

 

 

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