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A search is invalid where the suspect squeals after cop claims non-existent probable cause to search

Jun 13, 2014 A search is invalid where the suspect squeals after cop claims non-existent probable cause to search

When a person lights a fire in a dry-wood forest, s/he will not be able to stop the firestorm that follows, burning down multiple trees, spreading far and wide, polluting the air and waterways, and killing and maiming animals and destroying their habitats. Government is a necessary evil, something that too many people see as being as much the natural order of things as mountains, hurricanes and tidal waves. Government is not the natural order of things. It is a big beast that must be constantly watched and reined in.

Police are a particularly dangerous phenomenon. How many of them even stop to think that they, too, are a necessary evil, here to serve society and not the other way around?

Police have the power to take a person’s otherwise wonderful day, and to turn it into dung, sometimes catching people who have indeed committed crimes in our overcriminalized criminal justice system, but too often victimizing plenty of others who are profiled by police for investigation who are doing nothing wrong, or who have done nothing worse than speeding a little over the speed limit, only to find police pressuring them about whether they have been drinking or toking or have contraband in the car, and threatening to have drug sniffing dogs tear apart their car if they do not fess up to any drugs in the car. Dung beetles may revel in dung, but not humans.

Living in society themselves, judges recognize that their rulings to rein in police too much (as defined by judges) can result in more rampant criminal activity, but that giving police too much license replaces a land of liberty with a land of police fiat and even tyranny. I get exasperated with plenty of appellate court opinions addressing police authority, and revel when the appellate courts get it right.

The U.S. Court of Appeals for the Fourth Circuit — hardly a bastion of liberalism for criminal defendants — got it right on June 12 when reversing a gun conviction, stating that the search yielding a gun in a locked glove compartment was invalid where the suspect-defendant squealed about the gun’s presence in his car only after the cop claimed to have had non-existent probable cause to search the vehicle anyway. U.S. v. Safir, ___ F.3d ___ (4h Cir., June 12, 2014). Only after the police officer made such a false assertion of search authority, and intent, to search Safir’s car (based on seeing what looked like an alcohol flask in plain view), did Safir admit that a handgun "might" be inside  the car. The trial judge ruled that said admission was sufficient to allow the search of Safir’s car. The three-judge Fourth Circuit panel wisely ruled that the admission could not be used as a basis to find such probable cause, because it was elicited by the officer’s false claim of authority to search the car anyway.

Why did Mr. Safir have to wait to go to the Fourth Circuit to obtain relief in this matter? Why could the trial judge not have ruled correctly on this issue? Why did the Obama administration’s prosecutors push this unlawful search and, thus, improper prosecution? Will Obama speak up here? Why did the police conduct this unlawful search?

Our society is overcriminalized. The more overcriminalized society becomes, the more we will continue seeing such abuses by police, prosecutors and judges. We must shrink the criminal justice system now, to assure a system that is not monitoring and hassling us in so many aspects of our lives, and that is of higher quality, which quality cannot be assured when we have such an overgrown criminal justice system. Repeatedly I say that we will have a much more reliable, cost-efficient, manageable and high-quality criminal justice system once we legalize marijuana, decriminalize all other drugs, legalize prostitution and gambling, eliminate mandatory minimum sentencing and the death penalty, and eliminate blood alcohol content per se rules in DWI cases.

In any event, today I savor the Fourth Circuit’s Fourth Amendment ruling in Safir.

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