Thread: Don't rob a bank in Spain

did the lawyers handcuff the police, or is it the Constitution?

In fact BOTH are wrong.

It was the judges, in the courtrooms, with the gavel !!

What do I win??

Evidence?

Consider that the Miranda law was written over 150 years after the constitution.
It is what is considered a "prophylactic rule" , that is, it is meant to protect a constitutional right.
Some conservative judges would argue that although the law should protect a persons rights, the law has no obligation to inform them of rights of which they are not aware. Others would go even farther and say that the courts have no jurisdiction to create these kinds of laws.

Other examples of these sort of rules are the "exclusionary rule" aka '' fruit of the poisoned tree".
This came about in 1914 (I did look this one up). Older but not anywhere near the time of the writing of the constitution.

I stole this from wikipedia just because it turned up in my search.

Even in a standard criminal case, the Exclusionary Rule does not simply bar the introduction of all evidence obtained from all violations of the Fourth, Fifth, or Sixth Amendments. In Hudson v. Michigan, 547 U.S. ___, 126 S.Ct. 2159 (June 15, 2006), Justice Scalia wrote for the U.S. Supreme Court:
Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates "substantial social costs," United States v. Leon, 468 U.S. 897, 907 (1984), which sometimes include setting the guilty free and the dangerous at large. We have therefore been "cautious against expanding" it, Colorado v. Connelly, 479 U.S. 157, 166 (1986), and "have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application," Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364-365 (1998) (citation omitted). We have rejected "indiscriminate application" of the rule, Leon, supra, at 908, and have held it to be applicable only "where its remedial objectives are thought most efficaciously served," United States v. Calandra, 414 U.S. 338, 348 (1974) -- that is, "where its deterrence benefits outweigh its 'substantial social costs,'" Scott, supra, at 363, (quoting Leon, supra, at 907).

As you have read this rule only sometimes applies to some things, sometimes.

Since none of the precedent cited is before 1900 then I suppose my final answer will have to be JUDGES.

JUDGES... that's my final answer.

Do you disagree with the reading of the Miranda warning, and the exclusion of evidence which was gathered by law enforcement through means which violated your 4th, 5th and/or 6th Amendment rights?

Originally Posted by mhailey

Do you disagree with the reading of the Miranda warning, and the exclusion of evidence which was gathered by law enforcement through means which violated your 4th, 5th and/or 6th Amendment rights?

I'm still undecided on the Miranda but I think the fruit of the poisoned tree is a good idea and should be applied more liberally.
Seems to me that there tends to be a lot of cherry picking there by judges with agendas.

I was simply pointing out two major rules that are behind much of the uneducateds griping about "Can you believe that lawyer got him off on some bullshit technicality?? These lawyers just ruin the system !!"

I will give an example and we shall see if the brilliant legal minds here can come up with the right answer.

A car is pulled over for running a stop sign in a residential area.
The officer who made the stop runs the operators info and there are no warrants, license is valid, tag is good, guy was convicted of felony possession in 98 . No trouble with the law since then.

A second car arrives and they decide to go on a fishing expedition.
Operator refuses to allow the officers to search his car then the officer will call for a dog, the dog will alert (on command) and the car will be searched.


The officers search the car and find a illegal weapon.

Shazam, felony weapons charge. The guy is looking at serious time.

Does the exclusionary rule apply to this?
The dog gave a false alert.
The police were searching for drugs.
They didn't find drugs.
They found a weapon, which is not what they were after and is not what the dog smelled.
Does fruit of the poison tree apply?

Your flaw is the "alert on command" statement. Sorry, but i have never seen that happen. I have seen them search on command, attack on command, but never provide an alert to the presence of drugs on command.

If you are alleging that the cops forced the dog to alert, and it did not do so on its own volition, then the search was invalid, assuming this can be proven.

However, if the dog alerted, but was mistaken, then the question would turn on whether the officers had a valid reason to believe the alert. i.e. does this dog have a history of falsely alerting. if this dog has a highly accurate past when it alerts, then the search is valid, and the person is screwed.

The CYA statement: I assume that this is a hypothetical situation, does not apply to anyone in particular, and assumes a general jurisdiction (no specific state), as this is not intended for the purpose of providing legal advise.

if the cops really wanted to search that vehicle, all they needed to do was arrest the person and perform a serch incident to arrest, or impound the vehicle, and then perform an inventory search at the impound lot.

Which means it's ultimately the public? Don't you guys vote your judges in?

James.

it depends upon the jurisdiction. some states/municipalities vote for their judges. Others, such as the jurisdiction in which I reside, the Judges are appointed, and then retained by popular vote. I disagree with voting in judges, because then they are bound by teh popular vote (in order to obtain/retain their job), and they may make decisions which are contrary to the law, but popular with the people just to keep their position.

I know that someone is going to say the Judges need to bow to the wishes of the people, but I disagree. It was popular in Germany in the 1930's to degrade Jews, take their property without compensation, and, well for the lack of another word, kill them. Would this be constitutional in the US? No. But, if you have Judges that have to bow to the will of the people, they could/would let this happen, and not rule contrary to the popular opinion.

Now, lets hear the torrent of responses

depending on where you live... village/ township and county judges are elected, and in some places the only requirement to be a judge is that you are legally eligible to vote... scary?
State judges are often appointed and then subject to voters whim... depending on the type of court (criminal or family) while as far as i recall federal judges are appointed at the whim of the president (with senate approval) and they serve for life... or until they choose to retire.
Often times Federal judges choose to interpret the statutes and constitution in new and perverse ways... if they can get it to stick on appeal it becomes in law in fact, principle of "stare decisis" i believe. thus a judge can make a law.
Miranda good... obtaining evidence under false pretenses bad... if there was no reason for the search and seizure the evidence needs to be suppressed