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Thread: Va. Supreme Court: Traffic stop based on hunch illegal

  1. #1
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    Rudolph v. Commonwealth, Record No. 080794 - February 27, 2009.

    Although the contraband in this case was marijuana, this legal principle also applies to weapons.

    Therefore, if you OC or CC in a high-crime area at night, those facts alone do not justify a stop.

    Excerpt:

    In order to conduct an investigatory stop, a police officer need not have probable cause; he must have a reasonable suspicion, based on objective facts, that the person is involved in criminal activity. To establish reasonable suspicion, an officer must be able to articulate more than an unparticularized suspicion or "hunch" that criminal activity is afoot. A court must consider the totality of the circumstances when determining whether a police officer had a particularized and objective suspicion that the person stopped was involved in criminal activity.

    The fact that the stop occurred in a "high crime area" is a relevant factor; however, this fact is insufficient to supply a particularized and objective basis for suspecting criminal activity on the part of the particular person stopped. We hold that the circumstances and actions observed by Latchman were not enough to create a reasonable articulable suspicion that criminal activity was afoot. Viewing the totality of the circumstances objectively, even though it was 8:00 p.m. and there had been robberies and burglaries in the area, the circumstances did not supply a particularized and objective basis to suspect that Rudolph’s observed behavior was a precursor to a break-in, robbery, or any other criminal activity on his part. Therefore, Latchman stopped Rudolph in violation of Rudolph’s rights under the Fourth Amendment. Because the marijuana was discovered as a result of an illegal stop, the trial court should have granted Rudolph’s motion to suppress.

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    Repeater wrote:
    Rudolph v. Commonwealth, Record No. 080794 - February 27, 2009.

    Although the contraband in this case was marijuana, this legal principle also applies to weapons.

    Therefore, if you OC or CC in a high-crime area at night, those facts alone do not justify a stop.

    Thanks for the find, Repeater. I always find these things interesting to read.

    I would like to gently differ on your legal analysis. I'm not convinced the court would apply the sameprinciple to a gun OCd or CCd in a high crime area with no other facts.

    There is a comparatively young opinion in VA where a drug conviction was upheld. The drugs were found during a Terry Stop arisingfrom a gun. I can't recall the case name, or I would cite and link it here.

    [Paraphrase of story] It was after dark. Guy (soon-to-be-defendant) was walking towards his apartment building after dark. City narcs had set up a command post in his apartment building laundry room for drug surveillance and arrestsnearby. The narcresponsible for security seesthe guy carrying a handgun in his hand.Stops him.

    The court ruledit a valid stop. Based, if I recall on thegun, after dark, and concern about security of the narcs who had an operation going. Thus deciding the drug evidencewasnot suppress-able.

    The really memorable part was the dissent. The dissenting judge said that without a CHP, theonly way the guy could legally carry the gun into his apartment was openly.

    Maybe somebody here will recognize the fact pattern and be able to cite and link the case for me.

    Although there are other facts in thecase I described, just about the only real difference I can think of at the moment is the security of the narcs in the laundryroom. I'm notsurethe court would find for suppressionifpolice could articulate some security concern, even if not for themselves.

    Of course it would help if I could readagain the case I'm mentioning to be sure I've got my facts straight.

    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Here's another one, though unpublished, that does relate specifically to firearms: Goodman v. Commonwealth, 07 Vap UNP 1971061 (2007).
    In the instant case, appellant concedes the informant's reliability. Thus, we presume the accuracy of the informant's information and assess whether the information provided was sufficient to establish reasonable, articulable suspicion for an investigative detention. The informant's information, viewed in the light most favorable to the Commonwealth, provided Officer Ingram with reasonable suspicion to believe appellant was the person the informant had seen trying to sell a handgun he had in his possession. This information failed, however, to give Officer Ingram reasonable, articulable suspicion for a Terry stop and weapons frisk. See, e.g., Phillips v. Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 920 (1993) (holding weapons frisk permitted only when officer is both (1) rightly in the presence of an individual, as he is during the course of a valid Terry stop of the subject or a companion, and (2) develops reasonable suspicion that the subject may, in fact, be armed and dangerous).

    Although the informant's information provided Officer Ingram with reasonable suspicion to believe appellant possessed a firearm, nothing in the record provided reasonable suspicion for the belief that this possession was illegal. “Absent some disqualifying status (being a felon, juvenile, or drug possessor) or situs (being in a place where weapons are forbidden), it is not a crime to possess a weapon.” Jackson v. Commonwealth, 41 Va. App. 211, 231, 583 S.E.2d 780, 790 (2003) (en banc), rev'd on other grounds, 267 Va. 666, 594 S.E.2d 595 (2004). Further, nothing in the record indicated appellant was carrying the firearm in a legally proscribed manner, such as in a concealed fashion without a permit. See Code § 18.2-308. The Commonwealth also concedes that appellant's attempts to sell the handgun were not illegal2 and, thus, that information about his sales efforts, standing alone, was insufficient to justify a Terry stop.

    The Commonwealth contends, however, that the totality of the circumstances justified the stop and that, “since the informant was right about the car, location, and [appellant's] physical attributes, it was not unreasonable for Officer Ingram to assume [the informant] was likely right about the firearm and the outstanding warrant as well.” The flaw in this argument is that the informant reported merely that appellant “possibly had an outstanding warrant” and provided no explanation of the basis for that belief. (Emphasis added). For the reasons already discussed, knowledge that appellant possessed a handgun and was trying to sell it in a high-crime, high-drug area contributed nothing to the reasonable, articulable suspicion required for a Terry stop. Addition of the information that appellant “possibly had an outstanding warrant” was similarly insufficient to provide the officer with reasonable, articulable suspicion. Compare Washington v. Commonwealth, 29 Va. App. 5, 11-13, 509 S.E.2d 512, 515-16 (1999) (en banc) (upholding stop where police received anonymous tip that warrant for particular individual, Ford, was outstanding and that he was at specific location; police confirmed existence of warrant for Ford; and police detained person who exited rear of residence, in response to police knocking at front, in order to check identification). The reliability of the informant's other prior information, about both this individual and others, did nothing to compensate for the degree of his uncertainty about the existence of an outstanding warrant for appellant's arrest or the lack of an articulated basis for his belief in that “possibility.” See Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254, 261 (2000) (in context of anonymous tip that person of particular description was carrying firearm, discussing distinction between “reliability as to identification” and “reliability as to the likelihood of criminal activity” (citing 4 Wayne R. LaFave, Search and Seizure § 9.4(h), at 213 (3d ed. 1996))).
    The Court of Appeals ruled that the trial court had erred in denying the defendant's motion to exclude the firearm from evidence, and dismissed the indictment without remand.

    An unpublished opinion cannot be cited as controlling authority, but it can be used as persuasive authority, as well as an indication of which way the court's wind is blowing.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Citizen wrote:
    Repeater wrote:
    Rudolph v. Commonwealth, Record No. 080794 - February 27, 2009.

    Although the contraband in this case was marijuana, this legal principle also applies to weapons.

    Therefore, if you OC or CC in a high-crime area at night, those facts alone do not justify a stop.
    Thanks for the find, Repeater. I always find these things interesting to read.

    I would like to gently differ on your legal analysis. I'm not convinced the court would apply the sameprinciple to a gun OCd or CCd in a high crime area with no other facts.

    Of course it would help if I could readagain the case I'm mentioning to be sure I've got my facts straight.
    This case has now been appealed to SCOTUS:

    SCOTUSBlog -- Petition to watch on exclusionary rule

    A potential exclusionary rule case, dressed in RS's clothing:
    Docket: 09-102
    Title: Virginia v. Rudolph
    Issue: Did the Supreme Court of Virginia properly find, on the facts of this case, that an investigative stop was unjustified under the Fourth Amendment?
    Opinion below (Virginia Supreme Court)
    Petition for certiorari
    Brief in opposition
    Petitioner’s reply
    Amicus Brief of the Virginia Assoc. of Commonwealth’s Attorneys, et al.
    From the state court opinion, after finding no reasonable suspicion:
    When applied to evidence recovered pursuant to an investigatory stop, the exclusionary rule is best equipped to deter stops made not because of legitimate suspicion, but because the stop was motivated by some pernicious reason (such as racial profiling, personal animus, or the like), or by arbitrariness evidencing a genuine abuse of police power. Such a wrongful basis for the stop warrants the application of the exclusionary rule’s severe penalty.

    But not all investigatory stops arise from such base motivations. Indeed, the Supreme Court has explicitly recognized that conduct observed by police may be "ambiguous and susceptible of an innocent explanation" and yet still justify an investigatory stop, allowing the officers to "detain the individuals to resolve the ambiguity." ...

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    Repeater wrote:
    This case has now been appealed to SCOTUS:

    SCOTUSBlog -- Petition to watch on exclusionary rule

    A potential exclusionary rule case, dressed in RS's clothing:
    Docket: 09-102
    Title: Virginia v. Rudolph
    Issue: Did the Supreme Court of Virginia properly find, on the facts of this case, that an investigative stop was unjustified under the Fourth Amendment?
    Opinion below (Virginia Supreme Court)
    Petition for certiorari
    Brief in opposition
    Petitioner’s reply
    Amicus Brief of the Virginia Assoc. of Commonwealth’s Attorneys, et al.
    From the state court opinion, after finding no reasonable suspicion:
    When applied to evidence recovered pursuant to an investigatory stop, the exclusionary rule is best equipped to deter stops made not because of legitimate suspicion, but because the stop was motivated by some pernicious reason (such as racial profiling, personal animus, or the like), or by arbitrariness evidencing a genuine abuse of police power. Such a wrongful basis for the stop warrants the application of the exclusionary rule’s severe penalty.

    But not all investigatory stops arise from such base motivations. Indeed, the Supreme Court has explicitly recognized that conduct observed by police may be "ambiguous and susceptible of an innocent explanation" and yet still justify an investigatory stop, allowing the officers to "detain the individuals to resolve the ambiguity." ...
    So this means that there is no standard whatsoever.

    Just like hate crimes, this hinges upon what someone claims their intent was.

    Am I reading this wrong, or will the courts uphold the police who stop anyone who is legally open carrying because our conduct meets the "ambiguous and susceptible of an innocent explanation" standard?

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    Glock27Bill wrote:
    Am I reading this wrong, or will the courts uphold the police who stop anyone who is legally open carrying because our conduct meets the "ambiguous and susceptible of an innocent explanation" standard?
    Why isn't this in the same category as "profiling?"

    He/she has a gun: therefore might be bad."

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    Old and treacherous will beat young and skilled every time. Yata hey.

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    Glock27Bill wrote:
    So this means that there is no standard whatsoever.

    Am I reading this wrong, or will the courts uphold the police who stop anyone who is legally open carrying because our conduct meets the 'ambiguous and susceptible of an innocent explanation' standard?
    This is worse than you might imagine. Before saying why, a question:

    How many of you here support the Fourth Amendment to the U.S. Constitution?

    Or, I could ask this instead: those of you who enjoy bad LEO encounters, please raise your hand.

    Exactly.

    The 4th Amendment is important for all of us, including gun owners. There has been discussion here of 4th amendment cases in Virginia. Perhaps a few of you have noticed that over the past several years, the Virginia Supreme Court has stepped up and defended the 4th Amendment by using the Exclusionary Rule when there is police misconduct. This benefits all Virginians, including Virginia gun owners.

    Well, I've certainly noticed this, and I'm not the only one. The AG's office has also noticed. Sad to say, It appears the petition for cert. has little to do with Rudolph and much more with slapping down the Virginia Supreme Court.

    This paragraph for the Pet. Brief is revealing:

    Second, certiorari should be granted to ensure that lower courts do not consistently ignore this Court’s precedents. In a series of decisions, of which the case at bar is but one example, a narrow majority of the Supreme Court of Virginia effectively has displaced the standards established by this Court in the context of Terry stops and substituted its own more rigorous Fourth Amendment standard. Were this decision an aberration, Virginia likely would not seek certiorari. Virginia seeks redress in this Court because of the recurring nature of the problem and its harmful practical consequences for law enforcement in the Commonwealth.
    Pet. Br., page 9.

    Further down, there is this:

    An additional reason for granting certiorari, however, is the fact that the Supreme Court of Virginia on an ongoing basis has imposed a higher Fourth Amendment standard than required by this Court’s precedents. This Court’s precedents mean nothing if they can be consistently ignored. Furthermore, the Supreme Court of Virginia’s rebalancing of Fourth Amendment interests creates grave practical problems for Virginia law enforcement.
    Pet. Br., page 19.

    The implications are clear. The AG's office is offended that SCOVA is actually doing its job upholding the 4th Amendment in a manner that is NOT deferential to police discretion. And besides, as we all know, Officer Safety trumps all other concerns, including privacy interests.

    This ought to be clear here:

    In Rudolph, McCain, Grandison, and Snell, the Supreme Court of Virginia effectively raised the Fourth Amendment bar to a level that thwarts legitimate law enforcement activity and adversely impacts public safety. The Supreme Court of Virginia now precludes Terry stops or frisks if some innocent explanation can be devised for the suspect’s conduct. These holdings are contrary to this Court’s jurisprudence.
    Pet. Br., page 26.

    So, "raising the bar" by actually enforcing the 4th Amendment is "contrary" to the Constitution, as allegedly understood by SCOTUS?

    Safety, again, is an issue here:

    Terry stops are a critical tool for law enforcement. The proper articulation of the standard is vital not only to ensure that the laws are enforced and citizens are protected, but also to ensure the safety of the officers.
    Pet. Br., page 27.

    This Officer First mentality is even more evident in the AG's Reply Brief. As in here:

    However, in addition to the reasons mentioned above, review is warranted here to correct a recent stream of erroneous Fourth Amendment decisions. In these decisions, the Supreme Court of Virginia, often by a bare majority, effectively and consistently has raised the bar above and beyond what this Court has required.6
    Reply Br., page 9.

    Footnote 6 is revealing; it recites the "corrective" action of Moore, among other things:

    "In one of those decisions, Virginia was able to obtain redress in this Court: Virginia v. Moore, 128 S. Ct. 1598, 1608 (2008) (arrest proper under the Fourth Amendment when it is based on probable cause; Constitutional standard does not rise based on additional limitations provided by state law). More recently, Virginia failed to garner the necessary votes for certiorari. See Harris v. Virginia, 668 S.E.2d 141 (Va. 2008) (holding, contrary to majority of courts, that traffic stop was improper based on anonymous tip of drunk driving because officer failed to observe erratic driving) (cert. denied, U.S. Oct. 20, 2009) (No. 08-1385) (Roberts, C.J., joined by Scalia, J., dissenting from denial of certiorari)."

    Remember Harris? We like Harris, right? Well, they don't. This is first I've learned that that AG's office tried to appeal Harris, but failed.

    Finally, there is this:

    The problem for Virginia law enforcement is the more recent but consistent pattern whereby the court below imposes a higher standard than what the Fourth Amendment requires. Terry stops are but the latest area of Fourth Amendment law to fall to the trend of a new and improperly heightened standard.

    Certiorari is warranted to ensure that this Court’s judgments are not consistently disregarded.
    Reply Br., page 11.

    The Amicus Brief from the various groups in Virginia who see the Bill of Rights as an inconvenience and an obstacle contains similar rantings, such as the concluding paragraphs:

    The unavoidable cost in restricting the availability of the reasonable investigative stop is the increased risk to the public and law enforcement officers. The public safety is jeopardized by reducing police use of an effective and constitutional law enforcement practice. Further, because the authority of officers to conduct limited pat-downs during an investigative stop is based in large part on the same considerations that permit the Terry stop, limiting the authority of an officer to reasonably investigate uncertain suspicious conduct may well bleed over to limit the officer’s justifications for the pat-downs now permitted to insure his safety. These risks are unnecessary under Terry, and intolerable because they flow from deliberately less effective policing mandated only in order to comply with an overly restrictive local application of the Fourth Amendment standard.

    Virginia’s prosecutor and law enforcement organizations believe that unnecessary and unauthorized restrictions on the existing Terry rule present a genuine concern about the general application of controlling Fourth Amendment precedents worthy of this Court’s consideration.
    So, is this petition "worthy of this Court’s consideration"?

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    Regular Member TFred's Avatar
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    So if I get this right, the SCOTUS has not yet agreed to hear this case, but will discuss it during their closed meeting on November 24 (this Tuesday), is that correct? How long after such meetings does it take before a decision is announced?

    I too found the conclusion of the brief from the various Virginia organizations to be troubling. They clearly view the protections afforded by the Bill of Rights as an obstacle to be overcome. How can there be "unauthorized restrictions" on a right to be free from unreasonable search? What they are saying with that phrase is nonsensical, and implies that it is somehow improper to apply the 4th amendment in a straightforward manner, without some sort of filtering through Terry. Terry guides the Government in how to apply the 4th Amendment, it doesn't replace it!

    I kind of hope the SCOTUS declines to take this case, but if they do, I wonder if they might even uphold the Virginia Supreme Court ruling. Wouldn't that be a hoot?

    TFred


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    TFred wrote:
    So if I get this right, the SCOTUS has not yet agreed to hear this case, but will discuss it during their closed meeting on November 24 (this Tuesday), is that correct? How long after such meetings does it take before a decision is announced?

    I too found the conclusion of the brief from the various Virginia organizations to be troubling. They clearly view the protections afforded by the Bill of Rights as an obstacle to be overcome. How can there be "unauthorized restrictions" on a right to be free from unreasonable search? What they are saying with that phrase is nonsensical, and implies that it is somehow improper to apply the 4th amendment in a straightforward manner, without some sort of filtering through Terry. Terry guides the Government in how to apply the 4th Amendment, it doesn't replace it!

    I kind of hope the SCOTUS declines to take this case, but if they do, I wonder if they might even uphold the Virginia Supreme Court ruling. Wouldn't that be a hoot?

    TFred
    My understanding is that a decision will be known by next week.

    The Virginia AG's office is apparently populated with people who would rather do away with the Fourth Amendment.

    Regarding Terry and frisks in particular, the trend from the Virginia Supreme Court has been to uphold the entire relevant phrase "armed and presently dangerous." The briefs from the AG consistently leave out "and presently" -- perhaps that's no accident.

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    Regular Member TFred's Avatar
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    Repeater wrote:
    TFred wrote:
    So if I get this right, the SCOTUS has not yet agreed to hear this case, but will discuss it during their closed meeting on November 24 (this Tuesday), is that correct? How long after such meetings does it take before a decision is announced?

    I too found the conclusion of the brief from the various Virginia organizations to be troubling. They clearly view the protections afforded by the Bill of Rights as an obstacle to be overcome. How can there be "unauthorized restrictions" on a right to be free from unreasonable search? What they are saying with that phrase is nonsensical, and implies that it is somehow improper to apply the 4th amendment in a straightforward manner, without some sort of filtering through Terry. Terry guides the Government in how to apply the 4th Amendment, it doesn't replace it!

    I kind of hope the SCOTUS declines to take this case, but if they do, I wonder if they might even uphold the Virginia Supreme Court ruling. Wouldn't that be a hoot?

    TFred
    My understanding is that a decision will be known by next week.

    The Virginia AG's office is apparently populated with people who would rather do away with the Fourth Amendment.

    Regarding Terry and frisks in particular, the trend from the Virginia Supreme Court has been to uphold the entire relevant phrase "armed and presently dangerous." The briefs from the AG consistently leave out "and presently" -- perhaps that's no accident.
    Considering the brief Mims filed in support of George Mason, this wouldn't surprise me very much. January can't get here soon enough.

    TFred


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    TFred wrote:
    Considering the brief Mims filed in support of George Mason, this wouldn't surprise me very much. January can't get here soon enough.

    TFred
    I wonder if our new Attorney General will take his McBollinelli broom and sweep the AG's office clean of all who have contempt for the Bill of Rights?

    I wonder?



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    Repeater wrote:
    TFred wrote:
    Considering the brief Mims filed in support of George Mason, this wouldn't surprise me very much. January can't get here soon enough.

    TFred
    I wonder if our new Attorney General will take his McBollinelli broom and sweep the AG's office clean of all who have contempt for the Bill of Rights?

    I wonder?
    Well, if he's a good little Republican, he favors cops over citizens, so we'll see.



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    Tomahawk wrote:
    Well, if he's a good little Republican, he favors cops over citizens, so we'll see.
    Under the current (Democratic) adnimistration, Federal funding for local law enforcement is beig doled out to the tune of $4BILLION, under the American Recovery and Reinvestment Act of 2009:
    Between 2001 and 2006, the Bush administration CUT the Federal funding to Local LEA's by $2 Billion. The Democrats claimed that this caused crime rates to rise:
    But the Heritage Foundation, in a scholarly article, claims that there is no direct correlation between crime rates and Federal funding to local LEA's:
    The fact remains that Democratic administrations, at least in the past 20 years, have historically given MUCH more funding to LEA's, and are FAR more supportive of expanding the powers of local LEO's.

    Conversely, Republican administrations tend to favor Federal LEA's, and tend to work hard to expand teh scope of operations of Federal LEA's against the citizenry...

    So which side loves the cops more? Frankly, I think BOTH parties prefer the Police over the Citizens of this nation, and THAT is a disturbing state of affairs. It's just that the Republicans tend to lean toward expanded Federal LE powers, often with these expanded powers being granted "behind the scenes" and without benefit of public imput (and without much in the way of accountability), whereas the Dems tend to throw lots of money (without much in the way of accountability) toward local LEAs. (how's that for counter-intuitive data?!?)

    Both sides tend to work toward an increase in police powers, at the expense of rights of the citizenry--they just take different paths toward the same ultimate goal, which is a slow chipping away of our Bill of Rights, and the establishment of a State-Sponsored Monopoly on Violence...
    It is our cause to dispel the foggy thinking which avoids hard decisions in the delusion that a world of conflict will somehow mysteriously resolve itself into a world of harmony, if we just don't rock the boat or irritate the forces of aggressionand this is hogwash."
    --Barry Goldwater, 1964

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    Tomahawk wrote:
    Repeater wrote:
    TFred wrote:
    Considering the brief Mims filed in support of George Mason, this wouldn't surprise me very much. January can't get here soon enough.

    TFred
    I wonder if our new Attorney General will take his McBollinelli broom and sweep the AG's office clean of all who have contempt for the Bill of Rights?

    I wonder?
    Well, if he's a good little Republican, he favors cops over citizens, so we'll see.

    He proudly displayed his F.O.P. endorsement in his ads. But he has described himself as a Patrick Henry Conservative.

    So we'll see.

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    Repeater wrote:
    TFred wrote:
    Considering the brief Mims filed in support of George Mason, this wouldn't surprise me very much. January can't get here soon enough.

    TFred
    I wonder if our new Attorney General will take his McBollinelli broom and sweep the AG's office clean of all who have contempt for the Bill of Rights?

    I wonder?
    Wow!! Thanks for the analysis above, Repeater. I thought I was a 4A watcher. I bow to you. I read the brief, was a bit miffed with it, but didn't see what you saw!

    Regarding our new Atty General, I'll bet if you pretty much copied that analysis post into a letter, he would take notice.He's possiblyall tied in knots with work,the holidays with a big family, and the transition. I think there is a decent chance he is only remotely aware of any of the implications you mentioned.

    I would write him a letter.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Repeater wrote:
    TFred wrote:
    So if I get this right, the SCOTUS has not yet agreed to hear this case, but will discuss it during their closed meeting on November 24 (this Tuesday), is that correct? How long after such meetings does it take before a decision is announced?

    I too found the conclusion of the brief from the various Virginia organizations to be troubling. They clearly view the protections afforded by the Bill of Rights as an obstacle to be overcome. How can there be "unauthorized restrictions" on a right to be free from unreasonable search? What they are saying with that phrase is nonsensical, and implies that it is somehow improper to apply the 4th amendment in a straightforward manner, without some sort of filtering through Terry. Terry guides the Government in how to apply the 4th Amendment, it doesn't replace it!

    I kind of hope the SCOTUS declines to take this case, but if they do, I wonder if they might even uphold the Virginia Supreme Court ruling. Wouldn't that be a hoot?

    TFred
    My understanding is that a decision will be known by next week.

    The Virginia AG's office is apparently populated with people who would rather do away with the Fourth Amendment.

    Regarding Terry and frisks in particular, the trend from the Virginia Supreme Court has been to uphold the entire relevant phrase "armed and presently dangerous." The briefs from the AG consistently leave out "and presently" -- perhaps that's no accident.
    Let's not lose sight of the job of an attorney general: the AGis thegovernment's lawyer.

    As a counselor, a lawyer can counsel and urge his client to take a particular course of action in light of the lawyer's personal analysis of the law and hypothetical fact situation presented by the client.

    However, once something happens and a case goes to court, the job of the AG is to zealously advocate the interests of the government in a case, with a few special ethical rulesfor government lawyers. In appellate litigation, especially where complex constitutional issues are involved, there is generally enough precedent to support both sides of a particular argument.

    As an advocate, a lawyer (i.e., the AG) must advance the best nonfrivolous arguments for his client's (i.e., the government's) position, including any good faith argument for an extension, modification or reversal of existing law (which is often the case in appellate litigation involving complex legal issues). It is the job of opposing counsel to advance the best counterarguments. Then, after both sides make their cases, the court renders its judgment.
    James M. "Jim" Mullins, Jr., Esq.
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    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
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    Post imported post

    Repeater wrote:
    He proudly displayed his F.O.P. endorsement in his ads.
    Ewwww.

  18. #18
    Regular Member Repeater's Avatar
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    Well, good news!

    SCOTUS has released its official ORDERS list, which includes a large CERTIORARI DENIED section. Included in that list is:

    09-102 VIRGINIA V. RUDOLPH, DEMETRES J.

    So, take that, Mims!

  19. #19
    Regular Member
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    Post imported post

    Repeater wrote:
    Well, good news!

    SCOTUS has released its official ORDERS list, which includes a large CERTIORARI DENIED section. Included in that list is:

    09-102 VIRGINIA V. RUDOLPH, DEMETRES J.

    So, take that, Mims!
    So that means themost recentjudgement between Virginia vs Rudolph stands, correct?

  20. #20
    Regular Member Repeater's Avatar
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    darthmord wrote:
    Repeater wrote:
    Well, good news!

    SCOTUS has released its official ORDERS list, which includes a large CERTIORARI DENIED section. Included in that list is:

    09-102 VIRGINIA V. RUDOLPH, DEMETRES J.

    So, take that, Mims!
    So that means themost recent judgment between Virginia v. Rudolph stands, correct?
    That is correct. And that means our Supreme Court has a green light to continue upholding the Fourth Amendment.

  21. #21
    Regular Member wylde007's Avatar
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    Does it disgust anyone else that this was ever an issue?
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

  22. #22
    Regular Member Repeater's Avatar
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    wylde007 wrote:
    Does it disgust anyone else that this was ever an issue?
    Good question.

    Here is the problem: too many Republicans equate upholding the Fourth Amendment with siding with criminals.

    That's a poor attitude, but apparently a common one among GOP circles.

  23. #23
    Campaign Veteran marshaul's Avatar
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    Repeater wrote:
    wylde007 wrote:
    Does it disgust anyone else that this was ever an issue?
    Good question.

    Here is the problem: too many Republicans equate upholding the Fourth Amendment with siding with criminals.

    That's a poor attitude, but apparently a common one among GOP circles.
    +1

  24. #24
    Regular Member wylde007's Avatar
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    The Bill of Rights doesn't "side" with anyone in spirit or in principle.

    It is intended to protect the articles, effects, person, abode and business from spurious investigation or from "random" searches which amount to no more than fishing expeditions.

    It is paramount to the concept of being guilty until proven innocent. Officers who follow the mindset of "Arrest him now, we'll find something to charge him with later" are the greatest violators of such sacred trust of law.

    Of course, anyone with even a third-grade education (obviously most lawyers, politicians and law enforcement are exempt) understands that rights do not come with caveats. They are or they are not.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

  25. #25
    Moderator / Administrator Grapeshot's Avatar
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    Repeater wrote:
    darthmord wrote:
    Repeater wrote:
    Well, good news!

    SCOTUS has released its official ORDERS list, which includes a large CERTIORARI DENIED section. Included in that list is:

    09-102 VIRGINIA V. RUDOLPH, DEMETRES J.

    So, take that, Mims!
    So that means themost recent judgment between Virginia v. Rudolph stands, correct?
    That is correct. And that means our Supreme Court has a green light to continue upholding the Fourth Amendment.
    :celebrate

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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