DOCSLIB.ORG

AN ANALYSIS of the POTENTIAL LEGAL CONSTRAINTS on the USE of ADVANCED ALCOHOL-TESTING TECHNOLOGY Paul A

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
AN ANALYSIS of the POTENTIAL LEGAL CONSTRAINTS on the USE of ADVANCED ALCOHOL-TESTING TECHNOLOGY Paul A AN ANALYSIS OF THE POTENTIAL LEGAL CONSTRAINTS ON THE USE OF ADVANCED ALCOHOL-TESTING TECHNOLOGY Paul A. Ruschmann Kent B. Joscelyn Murray Greysun Hal 0. Carroll The University of Michigan Highway Safety Research Institute Ann Arbor, Michigan 48109 April 1980 Prepared for U.S. Department of Transportation National Highway Traffic Safety Administration Washington, D.C. 20590 Contract No. DOT-HS-7-01536 Document is available to the public through the National Technical Information Service Springfield, Virginia 22161 AN ANALYSIS OF THE POTENTIAL LEGAL CONSTRAINTS ON THE USE OF ADVANCED ALCOHOL-TESTING TECHNOLOGY Paul A. Ruschmann Kent B. Joscelyn Murray Greyson Hal 0. Carroll The University of Michigan Highway Safety Research Institute Ann Arbor, Michigan 48109 April 1980 Prepared for U.S. Department of Transportation National Highway Traffic Safety Administration Washington, D.C. 20590 Contract No. DOT-HS-7-01536 The contents of this report reflect the views of the authors, who are responsible for the facts and accuracy of the data presented herein. The contents do not necessarily reflect the official views or policy of the Department of Transportation. This report does not constitute a standard, specification, or regulation. This document is disseminated under the sponsorship of the Department of Transportation in the interest of information exchange. The United States Government assumes no liability for its contents or use thereof. The United States Government does not endorse products or manufacturers. Trade or manufacturer's names appear herein solely because they are considered essential to the object of this report. Document is available to the public through the National Technical Information Service Springfield, Virginia 22161 Tubicol Ropott Documtation Page ' 1. R.rorc No. 2. Accession No. 3. Rocipimt's Ceioleg NO. 4. Titlo md Subtitle 5. R.port Doto April 1980 AN ANALYSIS OF THE POTENTIAL LEGAL CONSTRAINTS ' 6. Prioming ~r~ir~ti~~COA ON THE USE OF ADVANCED ALCOHOL-TESTING TECHNOLOGY , 8. Porfoming Orgonirotion Report NO. 7. A""')Paul A. R~schmann,Kent B. Joscelyn, UM-HSRI-80-32 Murrav Grevson. Hal 0. Carroll 9. Pw(.minw Orgmixoiion Nread Address 10. Wort Unit No. Highway Safety Research Institute 11. Coniroct or Gront NO. The University of Michi an DOT-HS-7-01536 Ann Arbor, Michigan 481% 9 13. TYW of R.pori ond Period Cororod 12. Spmswing Agawl Nao md Address Final Report U.S . Department of Transportation Nov. 1976 Apr. 1980 National Highway Traffic Safety Administration - Washington, D.C. 20590 ,,. I...snn9 code 15. krpCI-iay Netor This volume is one of a series of documents dealing with legal constraints relevant to countermeasure development and implementation produced under Contract No. DOT-HS-7-01536. 1'6. Abstroct An analysis was made of the potential legal constraints on the use of existing and proposed devices that would be used at the roadside by police officers to measure drivers' blood alcohol concentrations. Examination of current law revealed the chief constraints to be: the constitutional requirement that searches and seizures be "reasonable"; state implied-consent legislation; and court decisions that require the retention of breath ampoules. As a result of these constraints: Devices requiring the tested subject's cooperation cannot be used unless there is "probable causettto arrest for driving while intoxicated; legislation requiring that an officer arrest a driver before testing precludes the administration of all prearrest tests in most states; implied-consent legislation offers drivers a number of options that could limit the use of certain testing devices in some states; and police officers and prosecutors in a few states must retain breath ampoules for possible further testing. Constraint resolution strategies include: administering active tests only when probable cause exists; amending implied-consent legislation to permit the use of new devices; and appealing adverse court decisions where necessary. 17. Koy Wwds 18. Distribution Statommi Drinking Drivers, Breath Testing, 'rearnest Screening, Implied This document is available to the Search and Seizure, Arrest, public through the National Technical Courts, Constitutional Law, Traffic Infomat ion Service, Springfield, Svst om Virginia 22161 19. &ri* CIoauf. (mI this nrrt) - m. Swri+y Classif. (of his pqo) 21. No. of P-0s 22. Price UNCLASSIFIED UNCLASSIFIED 64 ACKNOWLEDGMENT This volume is one of a series produced over a three-year period and therefore represents the combined work product of a large number of individuals. The legal constraints study was designed by Kent B. Joscelyn, J.D., who served as project director. Paul A. Ruschmann, J.D., coordinated project activity, developed the basic draft of this volume, and supervised the work of the many student assistants who participated in this study. Murray Greyson, J.D., and Andrew M. Walkover, J.D., coordinated earlier phases of project activity and compiled much of the legal background material necessary to produce this document. Hal 0. Carroll, J.D ., participated in the production of earlier drafts and provided valuable legal and technical review. James E. Haney edited this report. Special thanks are due to Professors Jerold H. Israel and Richard 0. Lempert of The University of Michigan Law School, who served as critical reviewers of the many work products. Policy Analysis Division staff who participated in this study included David G. Baldwin, J.D.; John W. McNair, J.D.; Dennis M. Powers, J.D.; and William C. Wheeler, Jr., J.D. Legal research and updating and citechecking of legal authorities were ably performed by the following law student assistants: Paul E. Bateman, John M. Coyne, John E. Grenke, Donald R. Garlit, Amy Greyson, Marcia McKenzie, Patricia Ramsey, Lawrence D. Rosenstock, James D. Tomola, Linda Throne, Theodore J. Vogel, Francis J. Wirtz, and Kent L. Weichman. In addition, Judith L. Cousins, Susan M. Kornfield, Mary Ann Snow, and Susan J. Wise served as research assistants. Special recognition must be expressed to those in the Administrative Zone of the Policy Analysis Division, without whose efforts this volume would not have been produced: Anne L. VanDerworp, Word Processing Unit supervisor, and Deborah M. Dunne who assisted her; Jacqueline B. Royal, Administrative Zone supervisor; Olga S. Burn, Policy Analysis Division executive assistant; Shirley E. Barnes; Judy M. Hunter; Janet C. Peters; Kathryn A. Szegedy; and Douglas J. VanDenBerg. Thanks are also expressed to the many individuals, too numerous to mention individually, who typed previous drafts of these volumes. Appreciation is also expressed to the National Highway Traffic Safety Administration's Contract Technical Managers, Dr. Richard P. Compton and Mr. Theodore E. Anderson, for their assistance throughout this study. Kent B. Joscelyn, J.D. Paul A. Ruschmann, J.D. Principal Investigator Principal Investigator CONTENTS 1.0 INTRODUCTION 1 1.1 Purpose of Volume 2 1.2 Background 3 1.3 Content of Volume 5 2.0 IDENTIFICATION AND DISCUSSION OF LEGAL ISSUES 7 2.1 Constitutional/Statutory Authority to Use Breath-Testing Oevi ces 7 Constitutional Authority 7 Statutory Authority 8 2.2 Constitutional/Statutory Issues Affecting the Circumstances Under Which Devices May Be Used 9 Authority of Police Officers to Stop Vehicles and Investigate Drivers 10 Whether the Use of Testing Devices is a "Search" 11 Justification Required to Use Active and Passive Devices 13 Statutory Provisions Governing the Circumstances Under Which Devices May Be Used 22 Summary 24 2.3 Legal Considerations Affecting the Use of Test Results as Evidence of DWI 2 5 Due Process of Law: The Guarantee of a Fair Trial 26 Scientific Validity 26 Statutory and Admini strative Regul ations Governing A1 coho1 Testing 27 Potential Tort Liability of Police Officers 2 8 Evidential Use of Breath Test Results 29 Pol icy Considerations Found in Other Areas of Highway Safety 3 1 Summary 32 2.4 Summary of Legal Issues 3.0 APPROACHES TO CONSTRAINT RESOLUTION 3.1 Constitutional Constraints 3.2 Statutory Constraints 3.3 Judicial Constraints 3.4 Summary 4.0 CONCLUSIONS AND RECOMMENDATIONS APPENDIX A APPENDIX 8 FOOTNOTES BIBLIOGRAPHY 1.0 INTRODUCTION This is one of a set of volumes concerned with the legal feasibility of proposed highway crash countermeasures. This volume addresses legal issues associated with the use of instruments to measure the alcohol concentration in the breath of drivers. The devices considered are in various stages of development. Some are in existence but are undergoing refinement as the state of technology develops. For example, a number of devices now exist that can quantitatively determine breath alcohol concentration (BAC). The quantitatively determined BAC value is used as evidence of impairment in prosecution of driving while intoxicated (DWI) offenses (1). In general, these devices are used at fixed locations, such as a police station. New technology is expected that would allow the manufacture of these devices in a portable form, which would allow their convenient use by an officer for roadside testing of a suspected offender. Other devices are in a conceptual stage. They may be technically feasible, although that has not been established. The purpose of this inquiry is to identify the likely legal constraints that would be associated with their use to aid in determining if development of the devices should be pursued. An example of such a device is the Non-Cooperative Breath Tester (NCBT). This device would allow an officer to collect a breath sample from the normally expelled breath of a subject--the subject's cooperation would not be required to provide a breath sample. We term the NCBT a passive device because it does not require the subject's cooperation. Devices that require a subject to provide a breath sample by blowing into a collection system are termed active devices. Active devices may collect a sample and store it temporarily for analysis within the same unit. Other active devices simply collect a breath sample and retain it for later analysis. Such devices are referred to as remote sampling devices or remote collection devices.
Load more

Recommended publications
  • Reasonable Suspicion and Mere Hunches
    Vanderbilt Law Review Volume 59 Issue 2 Article 3 3-2006 Reasonable Suspicion and Mere Hunches Craig S. Lerner Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Criminal Law Commons Recommended Citation Craig S. Lerner, Reasonable Suspicion and Mere Hunches, 59 Vanderbilt Law Review 407 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol59/iss2/3 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Reasonable Suspicion and Mere Hunches Craig S. Lerner 59 Vand. L. Rev. 407 (2006) In Terry v. Ohio, Earl Warren held that police officers could temporarily detain a suspect, provided that they relied upon "specific, reasonable inferences," and not simply upon an "inchoate and unparticularized suspicion or 'hunch."' Since Terry, courts have strained to distinguish "reasonablesuspicion," which is said to arise from the cool analysis of objective and particularized facts, from "mere hunches," which are said to be subjective, generalized, unreasoned and therefore unreliable. Yet this dichotomy between facts and intuitions is built on sand. Emotions and intuitions are not obstacles to reason, but indispensable heuristic devices that allow people to process diffuse, complex information about their environment and make sense of the world. The legal rules governing police conduct are thus premised on a mistaken assumption about human cognition. This Article argues that the legal system can defer, to some extent, to police officers' intuitions without undermining meaningful protections against law enforcement overreaching.
    [Show full text]
  • Randomization and the Fourth Amendment
    University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 2011 Randomization and the Fourth Amendment Bernard E. Harcourt Tracey L. Meares Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Bernard E. Harcourt & Tracey L. Meares, "Randomization and the Fourth Amendment," 78 University of Chicago Law Review 809 (2011). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Randomization and the Fourth Amendment Bernard E. Harcourtt& Tracey L. Mearestt Randomized checkpoint searches are generally taken to be the exact antithesis of reasonablenessunder the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirementof valid Fourth Amendment searches-namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized"suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on the question of suspicion-basedversus suspicionlesspolice searches, but on the level of suspicion that attaches to any search program and on the evenhandedness of the program. In essence, we argue for a new paradigm of randomized encounters that satisfy a base level of suspicion and that will provide the benefits of both privacy protection (by ensuring a minimum level of suspicion) and evenhandedness (by cabining police discretion), the very values we wish to protect through the Fourth Amendment.
    [Show full text]
  • The Florida Bar 651 East Jefferson Street John F
    THE FLORIDA BAR 651 EAST JEFFERSON STREET JOHN F. HARKNESS, JR. TALLAHASSEE, FL 32399-2300 850/561-5600 EXECUTIVE DIRECTOR WWW.FLORIDABAR.ORG Certificate of Accreditation for Continuing Legal Education 259769 December 19, 2012 Rosemary B. App. American Inn of Court Mercy Prieto 2001 SW 117 Ave. Miami, FL 33175 Reference Number: 3670-3 Title: A Real Case at SC of US: FL v. Jardines Level: Intermediate Approval Period: 10/23/2012 - 04/23/2014 CLE Credits General 1.5 Certification Credits Appellate Practice 1.0 Please provide the attendees the above reference number so they may go online to www.floridabar.org to report their completion of this program. Supreme Court of Florida ____________ No. SC08-2101 ____________ JOELIS JARDINES, Petitioner, vs. STATE OF FLORIDA, Respondent. [April 14, 2011] REVISED OPINION PERRY, J. We have for review State v. Jardines, 9 So. 3d 1 (Fla. 3d DCA 2008), in which the district court certified conflict with State v. Rabb, 920 So. 2d 1175 (Fla. 4th DCA 2006). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We quash the decision in Jardines and approve the result in Rabb. Police conducted a warrantless “sniff test” by a drug detection dog at Jardines‟ home and discovered live marijuana plants inside. The trial court granted Jardines‟ motion to suppress the evidence, and the State appealed. The district court reversed, and Jardines sought review in this Court. Jardines claims that the warrantless “sniff test” violated his right against unreasonable searches under the Fourth Amendment. The issue presented here is twofold: (i) whether a “sniff test” by a drug detection dog conducted at the front door of a private residence is a “search” under the Fourth Amendment and, if so, (ii) whether the evidentiary showing of wrongdoing that the government must make prior to conducting such a search is probable cause or reasonable suspicion.
    [Show full text]
  • Terrorism, Tips, and the Touchstone of Reasonableness: Seeking a Balance Between Threat Response and Privacy Dilution
    Volume 118 Issue 1 Dickinson Law Review - Volume 118, 2013-2014 6-1-2013 Terrorism, Tips, and the Touchstone of Reasonableness: Seeking a Balance Between Threat Response and Privacy Dilution Geoffrey S. Corn Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Geoffrey S. Corn, Terrorism, Tips, and the Touchstone of Reasonableness: Seeking a Balance Between Threat Response and Privacy Dilution, 118 DICK. L. REV. 129 (2013). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol118/iss1/5 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. Terrorism, Tips, and the Touchstone of Reasonableness: Seeking a Balance Between Threat Response and Privacy Dilution Geoffrey S. Com* Abstract It is the morning of the Oklahoma City terrorist bombing. The phone rings in the Oklahoma City Police Department, and a duty officer answers. The caller says, "There's a Ryder rental truck parked in front of the Murrah Federal Building with a massive bomb inside set to go off within one hour." The caller then hangs up. The duty officer alerts all nearby patrol units, and within three minutes an officer confirms the presence of the Ryder truck. What should the police do next? What response would be reasonable? Does the law permit them to cordon the area, take control of the vehicle, and use bomb detection technology to penetrate into the truck in order to confirm or deny the tip? If so, what limits, if any, apply to the use of contraband they may find inside the truck as evidence in a subsequent trial? Table of Contents I.
    [Show full text]
  • The Louisiana Supreme Court Upholds Gaming Checks, 69 Tul. L
    UIC School of Law UIC Law Open Access Repository UIC Law Open Access Faculty Scholarship 1-1-1994 State v. McHugh: The Louisiana Supreme Court Upholds Gaming Checks, 69 Tul. L. Rev. 611 (1994) Anthony Niedwiecki John Marshall Law School, [email protected] Follow this and additional works at: https://repository.law.uic.edu/facpubs Part of the Gaming Law Commons, and the State and Local Government Law Commons Recommended Citation Anthony S. Niedwiecki, State v. McHugh: The Louisiana Supreme Court Upholds Gaming Checks, 69 Tul. L. Rev. 611 (1994). https://repository.law.uic.edu/facpubs/223 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Open Access Faculty Scholarship by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. RECENT DEVELOPMENTS STATE V. MCHUGH: THE LOUISIANA SUPREME COURT UPHOLDS GAMING CHECKS In November 1990, Louisiana wildlife law enforcement officers were stopping and checking hunting boats in an attempt to keep hunters from taking too many ducks from Bayou Boeuf.' The officers stopped the boats and checked the tags that are required to be placed on every bag of hunted ducks.2 They recorded the signatures on the tags so they could determine whether the hunters had taken too many ducks for that day. When they began checking Bayou Boeuf landing on November 17, they realized that some hunters were using other hunters' signatures to bring in more ducks than legally allowed.4
    [Show full text]
  • Nominations to the Department of Homeland Security, the Department of Commerce, and Nasa Hearing
    S. HRG. 111–507 NOMINATIONS TO THE DEPARTMENT OF HOMELAND SECURITY, THE DEPARTMENT OF COMMERCE, AND NASA HEARING BEFORE THE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION OCTOBER 15, 2009 Printed for the use of the Committee on Commerce, Science, and Transportation ( U.S. GOVERNMENT PRINTING OFFICE 55–981 PDF WASHINGTON : 2010 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Nov 24 2008 08:37 Jun 24, 2010 Jkt 55981 PO 00000 Frm 000001 Fmt 05011 Sfmt 05011 S:\WPSHR\GPO\DOCS\55981.TXT SCOM1 PsN: JACKIE SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION JOHN D. ROCKEFELLER IV, West Virginia, Chairman DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas, Ranking JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine BYRON L. DORGAN, North Dakota JOHN ENSIGN, Nevada BARBARA BOXER, California JIM DEMINT, South Carolina BILL NELSON, Florida JOHN THUNE, South Dakota MARIA CANTWELL, Washington ROGER F. WICKER, Mississippi FRANK R. LAUTENBERG, New Jersey GEORGE S. LEMIEUX, Florida MARK PRYOR, Arkansas JOHNNY ISAKSON, Georgia CLAIRE MCCASKILL, Missouri DAVID VITTER, Louisiana AMY KLOBUCHAR, Minnesota SAM BROWNBACK, Kansas TOM UDALL, New Mexico MIKE JOHANNS, Nebraska MARK WARNER, Virginia MARK BEGICH, Alaska ELLEN L. DONESKI, Staff Director JAMES REID, Deputy Staff Director BRUCE H. ANDREWS, General Counsel ANN BEGEMAN, Acting Republican Staff Director BRIAN M. HENDRICKS, Republican Chief Counsel (II) VerDate Nov 24 2008 08:37 Jun 24, 2010 Jkt 55981 PO 00000 Frm 000002 Fmt 05904 Sfmt 05904 S:\WPSHR\GPO\DOCS\55981.TXT SCOM1 PsN: JACKIE C O N T E N T S Page Hearing held on October 15, 2009 .........................................................................
    [Show full text]
  • Satellite Surveillance: Domestic Issues
    Order Code RL34421 Satellite Surveillance: Domestic Issues March 21, 2008 Richard A. Best Jr. Specialist in National Defense Foreign Affairs, Defense, and Trade Division Jennifer K. Elsea Legislative Attorney American Law Division Satellite Surveillance: Domestic Issues Summary Reconnaissance satellites, first deployed in the early 1960s to peer into denied regions of the Soviet Union and other secretive enemy states, have from time to time been used by civilian agencies of the federal government to assist with mapping, disaster relief, and environmental concerns. These uses have been coordinated by the Civil Applications Office at the U.S. Geological Survey, a component of the Interior Department. Post 9/11, the Bush Administration has sought to encourage use of satellite-derived data for homeland security and law enforcement purposes, in addition to the civil applications that have been supported for years. In 2007, it moved to transfer responsibility for coordinating civilian use of satellites to the Department of Homeland Security. The transfer occurred, however, apparently without notification of key congressional oversight committees. Members of Congress and outside groups have raised concerns that using satellites for law enforcement purposes may infringe on the privacy and Fourth Amendment rights of U.S. persons. Other commentators have questioned whether the proposed surveillance will violate the Posse Comitatus Act or other restrictions on military involvement in civilian law enforcement, or would otherwise exceed the statutory mandates of the agencies involved. Such concerns led Congress to preclude any funds in the Consolidated Appropriations Act, 2008 (H.R. 2764, P.L. 110-161), from being used to “commence operations of the National Applications Office ..
    [Show full text]
  • NAACP V. City of Carmel
    F i! r-¯ - U.S. P!?T:·¯ v¯·; :;`;!^T IN THE UNITED STATES DISTRICT COURT lí OlAM'· " `. ' !> A; SOUTHERN DISTRICT OF INDIANA ,.o ^ INDIANAPOLIS DIVISION --; Hi R i7 Pi} 3: 53 INDIANAPOLIS CHAPTER OF ) NAACP v. City of Carmel THE NAACP, and ) IIII II II11 II II II III II |||||| III DAVID SMITH, on his own behalf ) II II II III I II II II III II IIIIII III and on behalf of a class of ) || || || |||| || || || ||| || |||||| || I those similarly situated, ) PP-IN-001-002 ) Plaintiffs, ) ) V. ) CAUSE NO. IP97-IO4C:M/S ) THE CITY OF CARMEL, INDIANA ) and PHILLIP HOBSON, ) ) Defendants. ) STIPULATION OF THE PARTIES TO SETTLE ALL ISSUES AFTER APPROVAL BY THE CLASS/STIPULATION TO CLASS CERTIFICATION/STIPULATION AND NOTICE TO THE CLASS Come now the parties, in person and by their counsel, and enter into this Stipulation which is designed, after notice to the class pursuant to Rule 23(e), to resolve all issues in this cause as set out below. INTRODUCTION: 1. Plaintiffs have previously filed their Amended Class Action Complaint for Injunctive and Declaratory Relief and Individual Case for Damages. 2. The Amended Complaint generally alleges a longstanding practice of the Carmel Police Department of stopping, without lawful cause, automobiles driven by, or containing, minorities and young persons, as well as a practice of stopping, without lawful cause, persons driving older cars without Hamilton County license plates . 3. Without admitting that any particular stop was unlawful or that an unlawful custom, practice or policy exists, or existed, the Defendants nevertheless believe that it is in their best interests to enter into this settlement which resolves all the issues in this cause.
    [Show full text]
  • Hosanna-Tabor Amicus Brief
    No. 17-1349 In the Supreme Court of the United States __________ RANDY N. JOHNSON, PETITIONER v. UNITED STATES OF AMERICA, RESPONDENT __________ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________ BRIEF OF FOURTH AMENDMENT SCHOLARS AS AMICI CURIAE IN SUPPORT OF PETITIONER __________ PATRICK BANNON LINDA T. COBERLY WINSTON & STRAWN LLP Counsel of Record 200 Park Avenue SEAN H. SUBER New York, NY 10166 NEHA NIGAM (212) 294-6700 WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL 60601 (312) 558-5600 [email protected] Counsel for Amici Curiae QUESTION PRESENTED In Whren v. United States, 517 U.S. 806 (1996), this Court held that the Fourth Amendment did not prohibit a pretextual traffic stop, as long as there was probable cause to believe that the driver had commit- ted a moving violation. The majority explained that in that context, “[s]ubjective intentions play no role.” Id. at 813. In this case, the Seventh Circuit extended Whren to allow a pretextual seizure based on probable cause to believe that there had been a civil parking in- fraction. This decision—which conflicts with state court decisions addressing similar infractions—threat- ens to undermine any “reasonableness” limitation on seizures and to create virtually unbridled police power to engage in racial profiling and interfere with the lib- erty of private citizens. With this context, the question presented in this case is: Whether the Fourth Amendment forbids a pre- textual and intrusive seizure based solely on probable cause to suspect a civil parking infraction.
    [Show full text]
  • Randomizing Immigration Enforcement: Exploring a New Fourth Amendment Regime
    \\jciprod01\productn\N\NYU\88-5\NYU504.txt unknown Seq: 1 22-OCT-13 15:00 NOTES RANDOMIZING IMMIGRATION ENFORCEMENT: EXPLORING A NEW FOURTH AMENDMENT REGIME CYNTHIA BENIN* This Note draws upon immigration law to analyze a new Fourth Amendment regime put forth by criminal law scholars Bernard Harcourt and Tracey Meares. In Randomization and the Fourth Amendment, Harcourt and Meares propose a model for reasonable searches and seizures that dispenses with individualized sus- picion in favor of random, checkpoint-like stops. Randomization, the authors con- tend, will ensure that enforcement is evenhanded and will alleviate burdens that result from discriminatory targeting. This Note explores the possibility of randomization in immigration enforcement, a useful context to test the Harcourt- Meares model because it exemplifies the ills the authors seek to address. Though analysis demonstrates that randomization falls far short of its goals, its failures are instructive. Indeed, the lens of immigration enforcement illuminates essential condi- tions that must exist in order for randomization to be viable. INTRODUCTION ................................................. 1736 R I. THE PROBLEM OF REASONABLENESS AND THE RANDOMIZATION SOLUTION ............................ 1739 R A. Introduction to Reasonableness and the Harcourt- Meares Model ....................................... 1739 R B. Randomization: A Solution to Discrimination? ...... 1744 R C. Immigration: A Context Primed for Reform......... 1747 R 1. Fourth Amendment Standards in Immigration . 1747 R 2. Racial Profiling Run Wild ...................... 1748 R 3. Acute Community Burdens ..................... 1751 R II. POOLING PROBLEMS: A RETURN TO THE USUAL SUSPECTS ............................................... 1753 R A. Location-Based Pooling and Convergence on the Border .............................................. 1753 R B. A Traits-Based Alternative and Convergence on Ethnicity ...........................................
    [Show full text]
  • Suspicionless Terrorism Checkpoints Since 9/11: Searching for Uniformity
    HANSON 9.0 12/13/2007 2:11:29 PM SUSPICIONLESS TERRORISM CHECKPOINTS SINCE 9/11: SEARCHING FOR UNIFORMITY TABLE OF CONTENTS I. Introduction....................................................................................... 172 II. The Constitutionality of Checkpoint Searches: A Brief Introduction....................................................................................... 175 A. The Special Needs Exception.................................................... 175 B. The Administrative Search Exception ..................................... 178 III. Does 9/11 Change the Constitutionality of Suspicionless Searches? ........................................................................................... 180 IV. Applying the Constitutional Analysis to Terrorism Checkpoints....................................................................................... 183 A. Fitting Terrorism Checkpoints Under a Traditional Exception ..................................................................................... 184 1. Terrorism Prevention as a Special Need ............................. 184 2. Analogizing Terrorism Checkpoints to Airport Searches.................................................................................. 186 B. Assessing the Gravity of the Governmental Interest ............. 189 1. The General Threat of Terrorism ........................................ 189 2. Foreign Terrorism.................................................................. 194 3. Following Congressional Assessments of Risk..................
    [Show full text]
  • Illiana Students Celebrate with Kings, Queens at Night to Shine
    Senior field trip to the Shakespeare Theatre - 2 • First home- the coming at new campus - 3 • Vaping popularity increases throughout the student body - 4 • Embracing social discomfort - 5 • What Illiana teacher ) has an unexpected talent? - 7 • ) Celebrating what makes us different EchIlliana Christian High o School ) and embracing all ethnicities - 6 Volume 73 Issue 6 February 22, 2019 Dyer, Indiana Illiana students celebrate with kings, queens at Night to Shine loved being a buddy because Taylor Benes I knew I was making them Reporter feel special,” Weemhoff said. “I highly recommend Nearly 20 Illiana stu- Illiana students to partici- pate in this amazing event dents joined more than next year.” 600 volunteers, kings, and Senior Lyla Kooistra queens to dance the night was a buddy for her second away at Night to Shine, a year at Night to Shine. prom night experience for “Night to Shine is very people with special needs, important to me because it celebrated on Feb. 8 at Faith is a reminder that everyone Church’s Dyer campus. has an opportunity to have Night to Shine, spon- fun and have fellowship to- sored by the Tim Tebow gether as one united family Foundation, began nation- of Christ,” Kooistra said. wide in 2015, and Faith Kooistra and her date, Church has hosted since Rachel, walked down the 2017. This year was Il- red carpet, danced, took liana’s first organized in- pictures in the photo booth, volvement in the event, and enjoyed chicken and ice arranged by Impact Club cream. “The joy on her face sponsor Heidi Teach.
    [Show full text]