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Caballes revisited

I’ve long thought that Illinois v. Caballes was one of the worst of a series of Constitutionally bad 4th Amendment decisions by the Supreme Court.

In a nutshell, the Supremes, led by Justice Stevens, ruled that, even absent any other suspicion, a drug dog alerting on a car was sufficient cause to justify a full search. In other words, the total decision as to whether there was sufficient reason for a search was to be determined by a dog anxious to please his or her law enforcement master.

The case was brought back to mind this week, when I found, via CrimProf Blog, an analysis of Stevens’ Caballes decision, written in 2006, but just recently posted on SSRN. It was written by James B. Johnston of Seton Hall University and published in the Quinnipiac Law Review. The abstract:

When a drug dealer delivers illegal narcotics to the American market place, he frequently uses our nation’s roadways. In an opinion authored by Justice John Paul Stevens and captioned Illinois v. Caballes, the U.S. Supreme Court held that a drug dealer does not have a reasonable expectation of privacy in delivering illegal drugs that is detected by a drug sniffing dog from the drug dealer’s car. The article argues that we as a society have a right and an obligation to protect ourselves from drug abuse and drug traffickers. Justice Stevens’ opinion provides a brilliant examination of judiciap [sic] precedent coupled with common sense. Caballes provides a balanced approach by providing law enforcement with a case that allows our police and prosecutors to fairly and effectively bring drug traffickers to justice.

My first thought was this was a simple and badly written review written by a high school student (or at least a beginning law school student throwing it together last minute for a class). That’s partly due to the horrid structure of the abstract. The second sentence is a grammatical disaster zone. Perhaps James should have read how to write an abstract (paying particular attention to #1, 3, and 4).


But it turns out that James Johnston is an Adjunct Professor at Seton Hall School of Law, a member of the bar since roughly 1996 and has been working with the Essex County Prosecutor’s Office (New Jersey) for 19 years where he is Lieutenant of Prosecutor’s Detectives.

My second thought was that looking at the sycophantic “analysis” (which, I must admit, was written a little bit better than the abstract) provided a good starting point for revisiting and pointing out the flaws in Stevens’ opinion.

Johnston highlights the lead point:

The Court found that there is simply no way for one trafficking illegal narcotics to enjoy a constitutionally protected privacy interest in the drugs that is “legitimate.” Society, the Court ruled, does not deem one’s privacy interest in transporting illegal drugs as an interest that is sound pursuant to the Constitution.

Here, Justice Stevens adds a fair amount of common sense to his opinion. It is inherently illegal for one to possess or transport illegal narcotics. How then can one expect to enjoy a constitutionally protected, legitimate privacy interest in possessing something that the law says one cannot possess?

Regardless of whether Stevens was building off United States v. Jacobsen as Orin Kerr posits, or merely continuing with the decision in United States v. Place, his reasoning is nonsense as regards the purpose and meaning of Constitutional rights, and it certainly isn’t “common sense.”

Constitutional rights are not about protecting criminals or criminal activity, but rather protecting citizens from government over-reach. Stevens’ view that there’s no right lost because there’s no right to possess illegal narcotics is an illogical end-justifies-the-means approach.

What about me, as a law-abiding citizen, secure in my person and possessions as guaranteed by the 4th Amendment, with nothing illegal in my car. Should I not be free from unreasonable searches? If a dog alerts to my car, why should I be subject to a search? I haven’t given up my expectation of privacy.

What this decision does is encourage fishing expeditions. If a search based on a dog alert finds drugs, then the driver had no expectation of privacy. If nothing shows up, then oops, that’s how it goes.

Ah, but perhaps Stevens was basing the decision on the notion that a dog sniff is infallible. If so, then the fact that a dog had alerted meant for certain that there were drugs there, and there’s no expectation of privacy for criminal activity.

Let’s turn to Johnston again:

Today, there are literally thousands of dogs being used by police agencies for a variety of tasks, including homeland security initiatives, airport security, and other public safety issues.

The success of any canine drug detection strategy begins with the proper training and recruitment of prospective drug sniffing dogs. Canines can be trained to sniff and detect drugs in a matter of weeks. The successful canine candidate must be even-tempered and genial. When a drug sniffing dog detects illegal narcotics, she either bites or scratches the containers or she becomes docile, sits, and wags her tail. At the federal level, dogs have been trained to detect a variety of illegal drugs. Continuous training is a key element in a drug sniffing dog’s track record of success. For example, U.S. Customs requires its drug sniffing dogs to undergo several hours of practice per month to preserve their keen senses.

Notice what’s missing? What’s the success rate? Is it 100%? If not (and it definitely isn’t), how do you justify the infringement on the rights of those other people? In fact, the Caballes opinion also failed to address that key issue, falling back on the worthless standard of “well-trained.”

What does that mean?

Unfortunately, drug dog accuracy rates are far from an exact science (and are often not even tracked). One expert says that most drug dogs are accurate only 52% of the time (which is hardly better than a coin toss). Here’s an instance where drug dogs were 0 for 31. That’s atrocious. Even if you posit a high success rate for drug sniffing dogs, the results to the law abiding population can be devastating.

The one thing that can be said for sure is that Stevens’ notion (which Johnston supports) that Caballes only infringes on the non-existent right to possess contraband is not only false, but is completely lacking in common sense.

Johnston actually starts out his analysis with this bit about the dangers of drugs:

The United States holds the distinction of being the largest consumer of illegal narcotics in the world. Drug traffickers, based both domestically and abroad, generate huge revenues for their illicit enterprises through American sales of their products. By the very nature of their business, drug traffickers can be both violent yet resourceful in the way they operate their affairs. Many crimes that appear at first glance to be unrelated to drugs possess at least some link to the narcotics industry. […]

High level drug dealers are often brutal individuals. Many have been responsible for murdering government officials, civilians, and fellow drug traffickers. Terrorist groups raise revenues for their operations by selling illegal narcotics. One plot implemented by al-Qaeda was the purchase and sale of weapons and ammunition in exchange for cash and illegal drugs. Violence and drug trafficking go hand in hand.

Additionally, health care costs for those who are addicted to drugs are enormous. The social cost to America as a whole is staggering. It is simply not in our country’s best interest to allow drug dealers to successfully market their product to the American public. Thus, our country’s attempt to bring drug dealers to justice is necessary to protect the American way of life.

This over-the-top description of the drug menace is actually a reflection of what often shows up in Supreme Court decisions. You’ll rarely hear it quite this offensively from the Supremes, but it’s there. And it’s usually a signal that they’re about to take away some of your freedom.

If it’s just a matter of interpreting the law, there’s no need to go into a justification involving the scourge of drugs. But in Fourth Amendment decisions, it’s all about placing or moving the line. It’s not about protecting the rights guaranteed in the Constitution, but rather deciding which portion of them should be kept by the people and which portion should be ceded to the government to pursue their desires. And so they inevitably talk about how bad drugs are and how that justifies the government’s interest in taking away another right.

Yet never in these discussions are the truly important questions discussed:

  • What evidence is there that government prohibition activities actually solve the problems listed?
  • Are there other approaches that would deal with the problems listed without the need to gut Constitutional rights?
  • Do prohibition activities have other negative consequences to society?

If the Supreme Court really required the government to satisfactorily address these basic questions, rather than simply regurgitating drug war propaganda, the “drug war exception” to the Bill of Rights wouldn’t exist.

Johnston attempts to strike some balance in his analysis by showing that not everyone agreed with the majority opinion in Caballes.

Some civil libertarians have expressed apprehension over Caballes. It should be candidly acknowledged that some law enforcement agencies have, in the past, made significant, even indefensible blunders in investigating drug trafficking. The fact of the matter is that the missteps of the past should not stop the law enforcement profession from seeking fair and effective ways to apprehend those who use America’s roadways to benefit from the illegal drug trade. A counter-narcotics trafficking program that includes the proper use of drug sniffing dogs, pursuant to the Court’s ruling in Caballes, can represent a significant step forward in confiscating illegal drugs before they reach the American public.

Really?

Note that he fails to even mention what civil libertarians found objectionable, let alone addressing those objections. And what about the Supremes themselves? Johnston never mentions Justice Souter’s scathing dissent.

No, Johnston isn’t interested in analysis, but rather in fellating Justice Stevens for this extremely flawed opinion that fits in so well with James Johnston’s selfish interests.

Justice Stevens’ opinion is well written. It combines a brilliant examination of judicial precedent coupled with common sense. Caballes provides a balanced approach to the issue by assuring that the public is protected from unreasonable searches while at the same time providing law enforcement with the tools to fairly and effectively bring drug traffickers to justice.

Lastly, Caballes acknowledges one central point: the Fourth Amendment of the United States Constitution does more than just protect the public from unreasonable searches by law enforcement. When obeyed, it also allows the police to lawfully protect every man, woman, and child that calls America home, from the narcotics trafficking business. This, I argue, will be the long-term legacy of Justice Stevens’ sound application of Fourth Amendment jurisprudence in Illinois v. Caballes.

Oh, my.

[Note to commenters. I’m sending a note to Mr. Johnston and offering him a chance to respond in comments or in a separate post, so please be reasonably civil.]

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33 comments to Caballes revisited

  • Indeed, it’s one of the worst cases ever handed down. Unfortunately there are so many bad 4th Amendment cases, to say it’s one of the “Dred Scotts” of 4th Amendment cases simply refers to a really long list.

    Frankly, I think any attorney who took an oath to preserve and defend the Constitution (as all attorneys must do to be licensed) should be disbarred for making such an argument before a court, and any judge who ruled in favor of that argument should be impeached. Good legal advocacy cannot be at the expense of the Constitution.

    Of course, the only reason why this flies is because of the longstanding “Drug Exception” to the Constitution. If it were not for the drug exception, I’m sure such lawyers and judges would be disbarred/impeached. We need to get rid of the Drug Exception and restore the Constitution so it once again has meaning. But there’s no way to fight a “war on drugs” without violating the 1st, 4th, 5th, 6th, 8th, 9th, 10th and 14th Amendments to the Constitution, as well as the Commerce Clause (with respect to federal drug laws, anyway). So we either have enforceable federal drug prohibition or we have the Constitution – we cannot have both. Like theocracy and prosperity, they are mutually exclusive.

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  • Duncan

    Dogs not only smell that which is there, but that which has been there as well. EG a man puts 5 pounds in the trunk of his car and drives it to a purchaser and sells it. He then stops and secures the proceeds at another location. A day’s work done he heads back to the car rental agency and returns his vehicle. Another man is simultaneously getting off of a plane, and the car rental agent gives him this car. On his way to the hotel he’s pulled over for speeding and the officer decides to let the dog see if he can catch a whiff. The dog should alert to the ‘presence’ of drugs even though none are there. It doesn’t mean the dog is trying to please his human or incompetent at his job as he’s not. But to me it means that a dog sniff isn’t probable cause to believe any drugs exist where the dog claims he can smell them. Especially when you combine that with the reality that all dogs aren’t competently trained and some are just trying to get their reward for finding the toy.

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  • They concede in the SCOTUS opinion that the dogs are not even all that accurate. Lots of false positives, for many different reasons.

    But the worst part is the police need no probable cause or reasonable suspicion to require a stopped driver to wait for a dog to do the sniffing (or be brought to the scene to do the sniffing). If the police suspected drugs were in the car and used the dogs to do a quick check to either confirm or deny or to locate the drugs without tearing the whole car apart, that would be one thing. But they can stop you for a speeding ticket and do a dog sniff test if they want, for whatever reason or no reason at all.

    Also, whenever you read a appellate decision on a criminal law issue that begins with a recitation of the facts of the crime or the “tough problems” facing law enforcement, it will be decided against the defendant 100% of the time.

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  • kant

    From my understand, the Constitution trumped federal law. It would seem to me that if you had to violate the constitution to enforce a law, that law was unconstitutional. Also as I understand it, it’s not the judicial branch’s duty or authority to right laws or enforce them but merely to ensure that laws and enforcement do not violate the constitution.

    So how does johnston defend a statement like “It is inherently illegal for one to possess or transport illegal narcotics. How then can one expect to enjoy a constitutionally protected, legitimate privacy interest in possessing something that the law says one cannot possess?”

    like I said before, If a law requires that the constitution be violated in order to enforce it, then the law is inherently unconstitutional

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  • kaptinemo

    Another example of the mindset behind culture wars. It’s amusing to some extent that those who are the greatest defenders of personal liberty are not those writing this kind of nonsense but the ones berating it, while those who are sworn to protect our rights are busily ripping them to shreds…and using the most specious of arguments to do so.

    But take special note of the peculiar mental processes used to justify that shredding of rights. To say it’s tantamount to sophistry is being generous. Yet it is exactly the same kind of sophistry that saddled us with the drug laws in the first place: ban drugs, get Utopia, because legislative (or judicial) decree automatically trumps millennia of human experience to the contrary. As if that had never been tried before in any previous civilization. Such sophomoric ‘thinking’ requires convoluted rationalizations to ‘justify’ it. Which in itself is a tell-tale of just how wrong-headed it is.

    The Founders intended a government that governs least; that’s why so many checks and balances were instituted, why we have three main Branches of government, etc. It was to slow down the inevitable process, known all too well to the Founders, that results in accretion of power by a centralized government with a corresponding reduction of the power of the individual to govern his or herself.

    That process has all but completed now, and the hallmarks of that are the drug laws and the development of a de facto police state to prosecute those laws…and to use such blatant sophistry as Mr. Johnston engages in their defense.

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  • Kant: that’s exactly right, except for the implicit “Drug Exception” to the constitution. All US Courts apply the drug exception so that the drug laws can be enforced without violating the constitution. The order of importance goes like this:

    1. Drug laws
    2. The Constitution
    3. Other statutes and treaties
    4. State drug laws
    5. State Constitutions
    6. State statutes

    States have drug exceptions to their Constitutions, too.

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  • Kozmo

    So since the court found that there is no “right to privacy” if a drug dog alerts then we can assume that if a police officer has a dog with him then he can search anyone, anytime, anywhere simply by claiming that the dog alerted. In essence what the court did was eliminate the fourth amendment. This country is sooo fucked.

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  • Seth

    “It is inherently illegal for one to possess or transport illegal narcotics. How then can one expect to enjoy a constitutionally protected, legitimate privacy interest in possessing something that the law says one cannot possess?”

    I think Mr. Johnston needs to re-evaluate his definition of the word “inherent”. There’s absolutely nothing inherent about drugs being illegal. Thousands of years of human use, coupled with the mere 100 or so years that such laws have existed points to that. Why were drugs being used without punitive consequence for all those years if humanity found them to be “inherently illegal”. Throughout those same vast spans of time there have generally always been laws dictating that murder and/or rape were wrong, and this holds true spanning a multitude of cultures. THOSE can be labeled as inherently illegal activities, if one is to go about doing so. But really, when one gets down to it, isn’t the word inherent used in such a context awfully subjective anyway? I mean, what I consider to be an inherently evil act, say, hunting down and punishing a person for harming (potentially) only his/herself by consuming a plant, might not be considered an inherently evil act by someone else, right? It seems to me that that word shouldn’t ever be used in a subjective context. If something is directly or related to the essence of a larger whole, then how can it be a subjective term? Either it is essential to the whole, or it isn’t, there’s no room for opinion. Meh, maybe that makes little sense or is simply clouded by my own biases, I don’t know.

    Anyway, there’s all sorts of other parts of this piece to tear at, that one small paragraph really got my blood surging though.

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  • ezrydn

    I keep running the scenario through my head about questioning the dog on the stand without his handler in the room. After all, the dog is a bone fide member of the Police Department and the accussing “officer.” Such a cross could prove to be interesting.

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  • worse than the notion that “It is inherently illegal for one to possess or transport illegal narcotics,” is the notion that it is perfectly (and inherently) legal to kill people over it.

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  • RCS

    While I am extremely skeptical of the policy rationales and tactics of the “war on drugs,” your own piece casts some doubt on the sincerity of your offer to the author and your request to be “reasonably civil.” You characterize the law review article as “sycophantic,” accuse the author of metaphorically “fellating” Justice Stevens for his own “selfish interests,” and add your opinion that the article appears to have been “written by a high school student.” Given the pejoratives strewn throughout your blog post, could any author in his position reasonably expect a civil reception and reasoned discourse? If your law school and/or political science education gave you a different perspective on the Fourth Amendment, you should contribute to the literature by submitting a response piece to the Quinnipiac Law Review. If the reasoning of the original article is as flawed as you claim, it should be relatively simple to write a thoughtful and thoroughly researched response. Most law reviews welcome response pieces, although I imagine that “fellating” and “sycophantic” would not survive the editorial process.

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  • allan sits down on the couch and fires up a bowl wondering where this conversation will go…

    Howdy RCS… I can’t speak for Pete, he’s the academician, I’m just a humble blue collar window cleaning, forklift driving former lumberflinger but Pete’s piece is pretty darn calm. Prohibitionists and their drug war sycophants are basically engaged in a circle jerk of not-so-hilarious and toxic proportion.

    I mean really… the Constitution is not the document of the gummint, the Constitution is the peoples’ document, the citizens’ guarantee that shit like this won’t (or shouldn’t) happen. There is no fucking “drugs exception” to the Constitution. Horsepuckey and bullshit I say! I’ve looked and I can’t find it. Checks and balances my ass… the system has been bought and paid for. We, the people just get the debt, the prison time and the all-too-occasional SWAT team knocking down our door and shooting our kinfolks or our pets.

    I think Pete shows remarkable restraint.

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  • “It is inherently illegal for one to possess or transport illegal narcotics. How then can one expect to enjoy a constitutionally protected, legitimate privacy interest in possessing something that the law says one cannot possess?”

    The Fourth Amendment doesn’t protect people’s interest in possessing something, it protects people from unreasonable searches and seizures. It doesn’t matter what they’re searching for – needless to say they’re going to be searching for something illegal. By this logic the police can come into your home whenever they want, without a warrant, and search for illegal items – because they’re illegal. The Fourth Amendment protects people. It’s protection is not contingent on what the government wants to look for. If it were, the Fourth Amendment would be meaningless – police could always justify a warrantless search by pointing out that they are searching for something illegal – something you have no right to have in the first place.

    RCS: Pete asked for a civil discussion, not a discussion that would be survive the editorial process and be publishable as a law review article. Harsh descriptions of the other person’s position (as opposed to ad hominem attacks on the other person) are perfectly reasonable, especially when they’re objectively accurate. Maybe the guy can explain why he has a good reason for fellating Justice Stevens, etc.

    Allan: you go practice criminal defense for 5 years and come back and tell me that there’s no Drug Exception to the Constitution. Moreover, there are a lot of things such as “strict scrutiny” and “harmless error” and “fighting words” that are not in the Constitution either.

    Apparently children did not exist back in the 18th century, so people could have rational discourse. Today, an argument can’t last more than 20 seconds before someone invokes “the children” and the argument is then over, reason and logic go down the drain and when the Constitution is involved, it gets raped.

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  • Sam from Ithaca

    I have to agree with RCS, Pete. I’m a long-time reader of DWR and supporter of the cause. You (Pete) are an excellent writer and a huge asset to the drug reform movement. And I know how unbelievably frustrating it can feel to have to counter the same misguided arguments again and again.

    But — taking a cue from President Obama — I also believe that the most effective way to make your argument is to take the rhetorical high ground. It’s hard to remember to do that when upset, but it’s important. People who sound angry are less convincing than people who don’t. Even when the anger is justified.

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  • Thanks everyone for the comments. With Sam joining in, whose opinion I respect, let me take a moment to re-visit my writing in this piece. I agree that people who sound angry are less convincing than people who don’t and I do want to be careful about going too far in that direction.

    That said, let me try to explain my approach in this piece.

    First — this is a blog. It has the word “rant” in the title. Part of the style of this site is for me to occasionally go off on a rant about something. And that means getting into a little bit of free-wheeling and, in fact, getting a little angry about something. It serves a valuable cathartic process for both me and my readers.

    Now let’s look at RCS’s charges one at a time.

    1.

    …add your opinion that the article appears to have been “written by a high school student.”

    I don’t know what’s wrong with that (and I was referring to the abstract, by the way). It did look like it was written by a high school student. Ask any Freshman English teacher in college to look at that abstract and they will put an “F” on it. Look at that second sentence:

    …the U.S. Supreme Court held that a drug dealer does not have a reasonable expectation of privacy in delivering illegal drugs that is detected by a drug sniffing dog from the drug dealer’s car.

    “illegal drugs that is“? “drug sniffing dog from the drug dealer’s car”?

    Sure, people make grammatical mistakes all the time. I know I do. But these are really bad, and they’re in an abstract for a legal article in a law review. It’s embarrassing. Reading that abstract made me, an ordinary person with little knowledge of law reviews, lose my respect for the quality of articles that I might find in law reviews.

    2.

    You characterize the law review article as “sycophantic,”

    Let’s see…

    Stevens’ opinion provides a brilliant examination of judiciap [sic] precedent coupled with common sense…. Here, Justice Stevens adds a fair amount of common sense to his opinion. … Justice Stevens’ opinion should be mandatory reading for both prosecutors and defense attorneys who litigate drug cases that involve the use of drug sniffing dogs. … should note Justice Stevens’ precise, yet well researched, constitutional analysis … Justice Stevens’ opinion is well written. It combines a brilliant examination of judicial precedent coupled with common sense. … This, I argue, will be the long-term legacy of Justice Stevens’ sound application of Fourth Amendment jurisprudence in Illinois v. Caballes.

    I would say that’s sycophantic. Particularly when you consider the fact that Johnston failed to include anything from the dissents or any of the reasons that the decision was opposed by civil libertarians.

    Which leads us to..

    3.

    accuse the author of metaphorically “fellating” Justice Stevens for his own “selfish interests,”

    I admit that the metaphorical use of the word “fellating” is strong, perhaps excessively so, but if the above sycophantic prose had been written about something I had done, I believe I might feel the release of the metaphorical blow job. As to the “selfish interests,” I fully admit that’s conjecture on my part, but when you consider that Johnston has spent the past 19 years as Lieutenant of the Prosecutor’s Detectives and how much interest prosecutors and law enforcement officers have in being able to use additional tools to arrest and prosecute people, combined with statements in his article like:

    …should not stop the law enforcement profession from seeking fair and effective ways to apprehend those who use America’s roadways to benefit from the illegal drug trade … thousands of individuals are arrested each year thanks to law enforcement’s use of drug sniffing dogs. … allowing law enforcement to lawfully apprehend the criminal element without placing unreasonable constraints in their path … providing law enforcement with the tools to fairly and effectively bring drug traffickers to justice. … Prohibiting police officers from appropriately using drug sniffing dogs to detect the presence of illegal narcotics from the exterior of an automobile, the way the Illinois Supreme Court attempted to do, would accomplish nothing but reward drug traffickers for hiding their poison. It would be akin to sending police officers out on patrol to apprehend drug dealers with blindfolds over their eyes and their hands tied behind their back.

    I think I can be forgiven for thinking that perhaps Johnston was looking after his own interests in law enforcement and prosecution when writing some of that.

    RCS writes:

    If your law school and/or political science education gave you a different perspective on the Fourth Amendment, you should contribute to the literature by submitting a response piece to the Quinnipiac Law Review. If the reasoning of the original article is as flawed as you claim, it should be relatively simple to write a thoughtful and thoroughly researched response. Most law reviews welcome response pieces, although I imagine that “fellating” and “sycophantic” would not survive the editorial process.

    Yes, but I have a blog. And so I wrote about it there. And a blog has a different structure and intent. True, if I wrote about this for submission to the Quinnipiac Law Review, the editorial process wouldn’t deal with the words “fellating” or “sycophantic” because I would have the sense not to use them in that venue. Because a law review is different than a blog.

    But then again, I thought that law reviews had higher standards.

    I may have been wrong.

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  • Sam from Ithaca

    Perhaps some law reviews have higher standards than others.

    I admit it’s surprising that the grammatical train wreck you pointed out got through the editorial process. And yes, I even agree that such a sentence would seem to fit in a high school newspaper better than in a law review. But maybe that fact is ancillary to the bigger picture, which is that the article’s reasoning was weak.

    Pete, I agree with your above analysis; the claims you made in response to the original article are indeed justified. I almost always find your rants entertaining as well as informative.

    But I’m not convinced that ranting is ever the best way to promote a cause. It can feel good to the already-converted, but be a turn-off to everyone else.

    Persuasion is hard. People have strong emotions about this issue. I have great respect for people who can make a strong case for this cause (or other worthwhile causes) without sounding shrill. I know I often fall quite short of this goal myself, and it’s something I’m trying to become more sensitive to.

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  • Ya know… if these folks (Prohibitionists) could ever write something and include… Oh, I don’t know… the following names in a piece and have that piece still support drug prohibition they might glean a bit of respect:

    Esequiel Hernandez, Jennifer Odom, Donald Scott, Peter McWilliams, Kathryn Johnston (etc, etc, ad nauseum)

    And if they could also include (and justify!) the bigoted, racist truth comprising the history of our drug laws, then they might have a legitmate voice.

    But they don’t. They can’t. When that aspect of drug policy – the human tragedies wrought by a violent approach to health issues – is examined and exposed, all their arguments are only so much manure. And their beloved drugs prohibition is not just un-American but in many senses, treasonous.

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  • taking a cue from President Obama — I also believe that the most effective way to make your argument is to take the rhetorical high ground.

    This is the first time I’ve heard the words “President Obama” and “effective” in the same sentence. President Obama is a lot of things (audacity of compromise and obsession with being liked are two that immediately come to mind), but “effective” is not one of them. He’s going to be a one-term president and will go down in history as one of the most ineffective presidents of all time. It’s not all his fault – his election has brought all the racists out of their caves and while they’re only 10-20% of the population, they are the loudest and the media always gives them equal time to spread their opinions, which they disguise as anything but racism. Yet all the while, Obama continues to compromise with them, call them his “friends”, give ground on his agenda to placate them, etc.

    And when Obama has gotten a chance to do something that’s entirely his choice, he appoints a right-wing, Republican prosecutor to the Supreme Court, he reneges on his promise to close Gitmo and get us out of Iraq, he continues to rendition and torture terrorist suspects (though without waterboarding… at least as far as we know), he continues the Bush policy of prosecuting people for possession/sale of marijuana when permitted by state law, he defends DOMA despite his campaign promises (and in the most offensive way possible to the GLBT community), he insults all the people who suggested legalizing marijuana could help the economy, and the drug Czar he appointed “doesn’t know the meaning of the word legalize.”

    I voted for him, and I want my vote back – Obama is a singular, spectacular failure. As stupid as he was, Bush knew how to push his (horrible) agenda through. And he didn’t have the mandate or control of Congress that Obama has.

    Obama is not effective. So if you want to be effective, don’t look to Obama for guidance.

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  • jackl

    I’m with Pete here. Sometimes you have to call out frauds and charlatans like this “law review” author just the way Pete did, with truth and strong language. That article had no place in a respectable law review.. I am a lawyer and was appalled at that drivel. “Fellating” while vulgar, is unfortunately spot on. While we can disagree on modes of rhetorical effectiveness, I don’t agree with the writers who think Pete’s comments were either wrong or unpersuasive. The self-serving article was more worthy of mockery than rational response.

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  • thanks jackl.

    The nice thing for me about being me is that I can (and do) write from my position as the “average joe” blue collar guy under my own name or help those who have titles and abbreviations and organizational affiliations they attach with their names, get published. I can rant and swear (I’ve paid dearly for that right) or I can wax eloquently in professional, concise, policy-ese in another’s name (a position I’ve earned). Both messages carry equal weight, imo, just in different tiers of society.

    Civility on the topic of the WO(s)D can be hard to maintain sometimes coming from our position. Personally I’m w/ Jesse Ventura… give him Dick Cheney for an hour and old Dick will change his tune on waterboarding not being torture. The point being is that if folks think waterboarding is torture what the hell was Peter McWilliams subjected to when he drowned in his own vomit. That, dear friends, is torture… no ifs, ands or buts.

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  • BluOx

    So…how do we get “our” fourth ammendment back? Just asking.

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  • It’s this sentence:

    ““It is inherently illegal for one to possess or transport illegal narcotics. How then can one expect to enjoy a constitutionally protected, legitimate privacy interest in possessing something that the law says one cannot possess?””

    … that makes me remember that the most difficult thing to realize is that which is not there.

    The rhetorical trick here is to single out the eeeeevil drug trafficker so that everybody thinks that we’re only talking about them – and not ordinary citizens.

    The question rather is whether a law-abiding citizen has reason to expect privacy when taking a ride, or whether that privacy is reasonable to infringe upon because of one thing: the hollow-point, armor piercing, depleted uranium tip, silver bullet that is a DOG!?

    Drug laws – and other discrimination laws – spring into being as long as everyone thinks it’s not about them but some remote deviant out there.

    My country, Denmark, is suffering increasing under punitive laws, e.g. recently a law was passed that prohibits you from having a knife in your cars. You can get a week in prison for it! Officially the law came about to battle “crazy young people”, “knife-wielding gang members” and other evil-doers. Unofficially, and I think someone MUST have known this, the law cannot distinguish between “normals” and “deviants”. So now this guy who likes fishing, and who brought a knife for that purpose, is going to jail.

    In fact, come to think of it, I better remove that knife from the car I used while camping or it’s slammer time for me.

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  • Cliff

    “My country, Denmark, is suffering increasing under punitive laws, e.g. recently a law was passed that prohibits you from having a knife in your cars. You can get a week in prison for it!”

    Krykees! I carry several folding knives, and tools which could be used to stab or injure someone. I use these tools daily and I am most safe with them. I’m glad things here haven’t reached that point…yet. Jesper, It is good having your comments to let us know the reality of what may very well come here.

    Many people think that Europeans are different from Americans somehow, without even stopping to think that most Americans are European stock with the same failings, shortcomings, fear and moral frailty.

    I enjoy reading your comments, and I am very impressed with your command of English.

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  • […] War Rant: Pete Guither revisits the Supreme Court’s Caballes case. So should you, and ultimately so should SCOTUS, although, because Justice David Souter authored […]

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  • Hi Cliff – Thanks for the nice words. It’s good to know.

    The irony with that knife law is that it’s our current conservative government’s attempt to become more reliant on punitive measures just like the USA.

    Our former prime minister, Anders Fogh Rasmussen, struck up a personal friendship with George W. Bush. Probably because they both don’t touch alcohol. I remember one election where he actually toasted his campaigners in orange juice ;)

    Just like you I think the differences between Europeans and Americans are much smaller than our similarities. All that “oh, but we can’t compare ourselves to the ____ians because we’re soooo different” are just trying to dismiss some reality based observation.

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  • […] to search the car, even if there was no probable cause to use the dog in the first place. Or, as this blog puts it, “the total decision as to whether there was sufficient reason for a search was to be […]

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  • […] again, our Supreme Court is shamed by another country Regular readers have heard me rail against Caballes v. Illinois, the truly awful Supreme Court decision that allowed searches based only on the whim of a dog, […]

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  • bob

    You are a certified fucking idiot. Why don’t we just hand the roads to the miscreants who sell drugs to kids on street corners. Lets play paddy cake with these dirt bags while we are at it. Or better yet how about blind man’s bluff. If you want to give carte blance to the degenerates who sell drugs for a living be my guest. We use dogs for just about every conceivable thing under the sun but not find drugs. You know what your problem is you moron? Your a moron. And there is nobody more self-righteous than a self righteous moron. Fuck You.

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  • […] in one of my recent posts about Caballes (the really bad Supreme Court ruling that allows dog-triggered searches on cars without any other […]

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  • Swooper420

    Bob, your diatribe really slips the lead on reality.

    You offer no arguments, only an ad hominem attack on (apparently) Pete. Ad hominem attacks don’t lend themselves to a reasoned discussion by adults.

    It’s Patty Cake, not Paddy Cake.

    It’s You’re (the contraction for “you are”), not Your (the possessive form of you). Even small mistakes like this really subtract from anything worthwhile that might be said. With a rant such as yours, it makes me wonder at what level your education ceased.

    You need to take a Quaalude and get laid (if any woman would have you) because your rant makes little sense.

    First you rant about drug dealers but then say it’s ok by you to give them carte blanche. Do you even know what the term means? “If you want to give carte blance to the degenerates who sell drugs for a living be my guest.” Your words.

    You then state that “We use dogs for just about every conceivable thing under the sun but not find drugs” Gee, that is what the debate is about, the use of “drug finding” dogs. One premise of the argument against using dogs to search for drugs is that dogs are unreliable and prone to errors.

    An aside … did you know that the majority of our paper currency is contaminated with detectable levels of cocaine?

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  • Lesslaw

    I agree with the tenor of the initial “rant,” as well as with the comments that followed. Mr. Johnston is proficient in seeing only ONE side of any argument, which leads me to wonder at the efficacy of his law school education. In fact, he is so “blue” that he wholeheartedly believes in the natural superiority of law enforcement. He entertains few opinions contrary to this line of thinking and his own opinion.

    The writing is elementary, at best; the arguments legally flawed and self-serving. How self-serving? Mr. Johnston is not only a lieutenant in the prosecutor’s office, he heads up the forfeiture division, so it is even more offensive that he sees absolutely no “unfair advantage” to the police with the use of these dogs, no abridgment of 4th amendment rights; in fact, the more “drug dealers” that can be arrested, the more property available for the government to seize. I will personally think of Mr. Johnston each time a state trooper pulls me over in an “unmarked” car that is more expensive than the one I’m driving.

    Mr. Johnston is so arrogant that he actually called attention to this scathing rant on a social networking site in order to get his brothers in blue to support him and soothe his bruised ego. Without ever once questioning the legitimacy of the arguments posed against him, he just kept repeating that the author of this blog accused him of blowing a judge! People with much smaller egos than this would have been keeping their fingers crossed that none of their friends, let alone their legal peers, would ever view this site, let alone be directed to his article. I think that the comments above soundly berated him concerning his use of the word “inherent” but that error alone should have kept this drivel out of any self-respecting law journal.

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  • Morelaw

    To Lesslaw. Since you are such an expert on Mr. Johnston and his “drivel” note this. His article was cited as an authority in a brief filed by the Florida Attorney General’s Office to the Florida Supreme Court. The case was a drug sniffing dog case. Guess what. The Forida AG won. Some “drivel” . You and your fellow apologists for the drug trade really need to get over yourselves..

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  • Duncan20903

    .
    .
    Wow, we can see that the appeals courts are always right. Here’s a particularly salient example of the Supreme Court making a decision in the better interests of all America:
    http://lacithedog.wordpress.com/2009/10/14/using-dred-scott-as-precedent-in-second-amendment-cases/

    Scott v Sandford (1857) google it, you might find it interesting.

    Did you know that despite all the rulings of the day including this precedent setting case that there are still people who think that Negroes deserve equal rights to us white people? Simply mind boggling.

    Keep up the good fight Mr. Morelaw, hopefully people full of sanity like yourself can keep the mud people from taking over our country.

    See you on Saturday in the parade in Skokie! There’s nothing more fun that goose stepping and sieg heiling in a town full of tattooed, numbered Jews, wouldn’t you agree?

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