tag:blogger.com,1999:blog-5354567765897135804.post240097702814822055..comments2023-03-16T23:35:17.345-04:00Comments on Forensic Science, Statistics & the Law: The Oral Argument in Maryland v. King — Part IIDH Kayehttp://www.blogger.com/profile/09329862957840849989noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-5354567765897135804.post-71446661488884981422013-03-04T20:52:17.740-05:002013-03-04T20:52:17.740-05:00More from Paul Vinegrad:
One additional thought o...More from Paul Vinegrad:<br /><br />One additional thought on my proposed doctrine:<br /><br />The status of the person subjected to a warrantless sr or sz is highly relevant to the (objectively assessed) level of intrusiveness upon his/her rep. So, for example, an ordinary citizen has a far greater rep than does a person properly subjected to a Terry stop/sz and frisk/sr. And a Terry detainee's rep is greater than that of a person, such as Alonzo King, who has been arrested for, charged with, and incarcerated for a felony.<br /><br />Alonzo King's status -- a status that would permit, among other things, a jailhouse visual strip search before entering general housing -- establishes the de minimus level of intrusion caused by a Q-tip being swirled in his mouth. But subjecting an ordinaty citizen or a Terry detainee to this type of sr would change the level of intrusiveness because of their different status relative to the criminal justice system.<br /><br />On the other hand, the status of the person subjected to a warrantless sr or sz does not, by itself, alter the (objectively assessed) justifications proffered by the government. So, for example, the justification in King -- to see if the arrestee is linked to a cold case and, in turn, determine if he/she would pose a safety risk to people working in the jail (if in custody) or to people on the street (if out of custody on bail or O.R.) -- is not altered because a person's status.<br /><br />The government would love to see if ordinary citizens, or Terry detainees, are linked to cold cases and, in turn, whether they pose a danger to society at large. Thus, the justification remains the same as arrestees like King. But the status of the person being sr changes and that results in a change in the balancing -- balancing that determine 4th Am. reasonableness.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5354567765897135804.post-86242372846121982242013-03-04T20:50:34.574-05:002013-03-04T20:50:34.574-05:00From Paul Vinegrad:
The Court needs to harmonize ...From Paul Vinegrad:<br /><br />The Court needs to harmonize the two 4th Am. clauses and revamp its doctrine as follows:<br /><br />1. All searches (sr) and seizures (sz) with warrants issued upon probable cause (pc) are reasonable;<br /><br />2. All warrantless sr and sz conducted with pc are reasonable if the legitimate government justifications outweigh the intrusion on a reasonable expectation of privacy (rep); and<br /><br />3. All warrantless sr and sz unsupported by pc are unreasonable unless (A) the government can establish that its justifications outweigh the intrusion on a rep, and (B) the exception is categorical and narrowly tailored to serve the justifications.<br /><br />Under this balancing regime, the level of intrusiveness and the justifications are evaluated objectively. The subjective feelings of the particular person subject to the search or seizure are irrelevant, as is the subjective purpose of the government official(s) conducting the sr or sz or authorizing a system of programatic sr or sz. Thus, the language in the preamble of a statute establishing a programatic sr or sz regime is an irrelevant expression of the subjective purpose of a legislator, and not a controlling factor regarding the objective justifications proffered by the government as part of 4th Am. balancing.<br /><br />Also, under this balancing doctrine, there is no need to determine if a particular sr or sz would serve a "special" governmental need, aside from evidence gathering, as any such need is subsumed in the objective analysis of the government's justifications. Likewise, there is no need to ascertain the "primary," "secondary," or "incidental" purpose of the sr or sz. That nomenclature is replaced by an objective evaluation of the proffered justifications, regardless of their primacy.<br /><br />The King case should be evaluated under category 3. The McNeely DUI blood draw case pending before the Court is a category 2 case. So-called "special" needs cases, such as Edmond, Sitz, Florence, and Samson, are category 3 cases. Terry is also a category 3 case. The Bailey decision by the Court last month is also a category 3 case.<br /><br />Edmond can't be intellectually differentiated from Sitz. And Justice O'Conner's attempt to do so is nothing more than line-drawing based upon preferred policy, rather than doctrine-based substantive constitutional adjudication.<br /><br />Finally, with respect to the discussion of the bail justification at oral argument, it must be remembered that if the defendant is out of custody on bail or O.R. at the time the DNA results become available those results (to the extent they establish a link to a cold case) are highly relevant to a determination regarding revocation or modification of bail or O.R. status, in order to ensure the defendant's appearance at trial and protect the public from the defendant. Given this legitimate justification, it is irrelevant that Rapid DNA analysis is not presently available.Anonymousnoreply@blogger.com