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Monday, November 19, 2007

"BACK" TO THE 4TH AMENDMENT

In a highly anticipated case (Maryland v. Paulino, Supreme Court Docket# 07-266)
involving the scope of a search incident to arrest and the Fourth Amendment, Supreme Court scholars are anxiously watching to see which lawyer will be achieve fame and enter legal history by being the first lawyer ever to use the words “buttocks” , “ass cheeks”, and “ass cracks” in a public legal argument with Justices Scalia and Thomas.


The information is on the Supreme Court blog HERE
(scroll down to the petitions for cert on 11/15/07)

The Defendant testified at the suppression hearing:

[Mr. Paulino]: They had searched me in my pockets, didn’t find nothing, and
eventually, they came to the subject where – in my report, it states that the
officer said, Mr. Paulino, why is your butt cheeks squeezed? And in further
response, I said nothing. He said it again, and another officers come behind
with gloves and pulled my pants down and went in my ass. Well, my cheeks.
Sorry about that.


The Maryland Court framed the issue this way:

Did the search of Petitioner, which involved an officer putting on
plastic gloves and spreading the cheek s of Petitioner’s buttocks to reveal drugs
which were not visible before that time, violate the Fourth Amendment, when
the search was con ducted in the parking lot of a car wash in the presence of
individuals other than the searching officer?


This case affects Miami in many ways. Beyond the legion of leering police officers just waiting for permission to legally shove their hands downs the backsides of models sashaying down Ocean Drive, the question remains whether the “hip/hop” fashion of wearing pants below the waist is constitutionally significant?


From the Maryland Appellate Court:

It remains un-clear whether Paulino ’s pants were below his waist as a result of his
removal from the vehicle in the course of the arrest, or, whether Paulino intentionally wore his pants below his waist as a part of a fad. Even if Paulino intentionally wore his pants below his waist and his undergarments were exposed , we conclude that because Paulino’s pants were below his waist he retained, nevertheless, a Fourth Amendment right to privacy in his person.



Will Justice Souter and his clerks stroll down the hallowed hallways of the Supreme Court with their pants hanging fashionably low, shouting out a “Yo! My Dog” to Chief Justice Roberts as they pass him by?

Will Miami lawyers now be able to recreate the search of their fetching clients in the private confines of their offices without fearing Bar reprisals?

There’s no “backing” away from this controversy. This case will not fall between the “cracks”. Which Supreme Court Justice will be “ass”igned the opinion?

Somehow, this whole Fourth Amendment issue appeals to our own prurient interests. See, Roth v. United States, 354 U.S. 476 (1957).

See You In Court,
reading the latest cases from the Supreme Court so we don't get caught "behind" the new changes in the law.

19 comments:

Rumpole said...

Yes, I posted this early by putting it up late Sunday night because I have a busy Monday. I can manipulate time- deal with it.

CAPTAIN said...

I'm confused. Rumpole reading the SCOTUS Blog! What's next - Rumpole drinking at Tobacco Road with Leslie Rothenberg?

CAPTAIN OUT .....

Anonymous said...

rumpole? how could the steelers lose to the jets?

Anonymous said...

Terry Stop... alleged perp could be hiding a weapon between his ass crack.

South Florida Lawyers said...

Thanks for the link, Rump!

Anonymous said...

"Making Sense Of Search And Seizure Law: A Fourth Amendment Handbook: by Phillip A. Hubbart would certainly benefit of lot of you blogsters! No, I am NOT Phil Hubbart...I just remember him as the greatest PD Dade ever had. The PDs who worked for him are legendary! I had him for Criminal Procedure at UM.

Anonymous said...

Would it be less offensive than having a sadist or person with homosexual leanings look up the butt of a drug suspect to call out the drug sniffing dog? I have an inquiring mind and I would like to know? signed, bottom third of class law student.

Rumpole said...

5:33= not being a fan of either the Jets or the Steelers, I didn't see the game. The Cowboy/Skins game was what I watched and it was great until the end. The Jets are a good team and have played way below their abilities. I think we may be seeing that the Steelers have been playing above their abilities. As longtime and careful readers know, Rumpole is all about "go Fins go."

Anonymous said...

I am anxiously awaiting the outcome of this decision... I currently have an a-form that reads as follows: Information was received from a person who wished to remain anonymous that the Def. was holding crack cocaine between his butt. A surveillance based jump was conducted, at which time the def. was throwing dice and playing dominoes with several black males. A search of the def. revealed one clear sandwich bag containing 9 pieces of "naked" crack cocaine in his butt cheeks, which was recovered by Det. Ferguson.

Anonymous said...

Proof positive that Phil R is NOT Rumpole: Phil R is a HUGE Steelers fan....or is Phil R being sneaky?

CAPTAIN said...

THE CAPTAIN REPORTS:

The JNC has for consideration 28 applicants for the seat of Judge Bach. Judge Bach has resigned efective Feb. 1, 2008. Interviews will be conducted and six names will be sent to the Governor for his consideration. The candidates are:

1. Manuel A. Segarra, III
2. Steven Levine
3. Lynette McGuinness
4. Joseph I. Davis, Jr.
5. Marie Jo Toussaint
6. Yvonne Colodny
7. Gail Ash Dotson
8. Margaret Ann Rosenbaum
9. Rodney Smith
10. Fleur J. Lobree
11. Shirlyon J. McWhorter
12. William Altfield
13. James E. Leano, Esq.
14. Alan Adrian Taylor
15. Manny Anon, Jr.
16. Jorge E. Cueto
17. Lisa Walsh
18. Maria T. Armas
19. Mario Garcia, Jr.
20. Stephen Mechanic
21. David M. Peckins
22. Maria Sampedro-Iglesia
23. Meryl S. Gold-Levy
24. Stacy Daryl Glick
25. Herbert C. Andrews, Esq.
26. Thomas J. Rebull
27. Migna Sanchez-Llorens
28. Tanya J. Brinkley

CAPTAIN OUT .........

Anonymous said...

Rumpole, it is not spelled "Yo! My Dog”. It is spelled: "Yo! Dawg!" Please learn some urban syntax and spelling.

Anonymous said...

Terry said:

Okay I'll stop, I'll stop.

Anonymous said...

District Court of Appeal of Florida,
Fourth District.
Michael Bryan JOHNSON, Timothy Scott and Demarkcos L. Daniels, Appellants,
v.
STATE of Florida, Appellee.

Nos. 91-3566, 91-3607 and 91-3608.

Feb. 3, 1993.
Rehearing Denied March 12, 1993.


In prosecution for trafficking in cocaine, the Circuit Court for Indian River County, L.B. Vocelle, J., denied defendants' motions to suppress seized cocaine, and they appealed. The District Court of Appeal, Dell, J., held that defendants' consent to patdown searches of their persons did not encompass strip searches of their crotch and genital areas, in open view on side of roadway of interstate highway.
Reversed and remanded.

Anonymous said...

The PDs on that list don't stand a chance...unless they are married to Justin Sayfie

Rumpole said...

5:08- I checked with Judge Souter's chambers. And in New Hampshire it is said "pardon me..yo..dog.." and that is the pronounciation Justice Souter is most comfortable with.

4:27- at the risk of causing an uproar, and I really try to keep his name out of the blog because he has suffered more than anyone with unfair accusations- and I think he is a good attorney- But I didn't like Phil's quote in the paper today. He is right on the issue of circumstantial evidence- but I assume Nesmith went to him for a quote because he is a defense attorney and he ended up backing the prosecution. Now if that is how he feels-Fine. But somehow it rubbed me the wrong way and quite frankly I thought all day about doing a post on the subject and only the dred of rousing the "Phil R is Rumpole ruckus" kept me from doing it. It makes him plenty upset I can tell you that.

Rumpole said...

I removed the comment where the person spelled someone's name backwards- it originally got by me. sneaky sneaky- but homophobic slurs no matter how sneakily crafted, are VERBOTTEN.

Rumpole said...

Captain- everyone knows Judge Rothenberg drinks at Captains Tavern.

Just kidding.

Somehow in a peverse way, I like the SCOTUS blog.

Anonymous said...

Congrat Judge Karen Mills Francis!