Monday, June 01, 2009


UPDATE: We're sad to report ASA David Ranck was arrested last night on a contretemps involving a pizza delivery woman. He is presumed innocent. 

Before we begin, we take note of these petitions for cert:  Florida v. Powell  
08-1175  and Florida v. Rigternik 08- 1229 in which the innocuous little question before the Scalia Court is  "must a suspect be expressly advised of his right to counsel before questioning, and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?"

A certain federal blogger "pooh-poohed" (a legal term derived from Latin, meaning "summarily dismissed with a condescending air of 'I know more than you' ") our contention that Justice Scalia was drawing his sights on Miranda.  Scalia's pronouncements on society's overriding interest in successful prosecutions, along with his dicta about Miranda rights "purporting" to come from the Fifth Amendment raised our suspicions. We shall see if we are right.   Anyone care to bet if Scalia votes to grant cert? Anyone?

We turn today to the Supreme Court's recent decision in Arizona v. Gant because: 1) certain federal bloggers argued it was proof of Justice Scalia's warm embrace of the rights of the accused and 2) a review of Justice Alito's dissent on the issue of stare decisis is warranted based on Alito joining the Majority in Montejo v. Louisiana   and Steven's dissent exposing Alito as an unprincipled jurist when it comes to precedent. 

We address today the question of just how concerned Justice Scalia is with the rights of the accused. Unfortunately for certain Federal Bloggers, they are much better trial lawyers  than analysts  of Supreme Court Justices, because as you dear reader shall see, Scalia is anything but a friend of the accused. 

First: STEVENS  not Scalia wrote the majority opinion, as was his right as the senior justice in the majority. Scalia was along for the ride on this one- and was a reluctant rider at best. 

Gant rolls back some of the leeway police officers have taken in searching automobiles incident to arrest. Specifically, when an individual is stopped and arrested and in custody in the back of a police vehicle (the court's opinion makes no distinction as to whether it matters if the client was beaten up at the scene or the station) the police may no longer search the vehicle incident to arrest under NY v. Belton  because the suspect no longer has access to the items in the vehicle. 

Don't get too excited however, because Scalia the collectivist hauls the court back with his concurrence. Rather than hold that unless the police have probable cause to get a warrant, the interior of an automobile can not be searched, Scalia posits that it's OK for the police to execute a warrantless search of the interior of a car if "unique to the circumstances" of the arrest it is reasonable to believe evidence relevant to the crime of arrest may be found in the car"  US v. Thornton, 541 US 615,  632 (Scalia, concurring). 

To get Scalia in the majority in this case, Stevens had to agree to incorporate Scalia's concurring opinion in Thornton. It would seem to most law students that when the police have probable cause to believe that a private place contains evidence of crime, the 4th amendment requires that they get a warrant. However Scalia leaves us with the less than bright line rule that  the police can search a car sans warrant  if they somehow think the car contains evidence of the crime relating to the arrest.  

 How police somehow arrive at the belief a car they have not searched will contain evidence of a crime, remains to be seen, unless it's Officer Kreskin at the scene. 

Scalia's concurrence: (or as Ronald Regan would say: "there you go again.")  Scalia says first look to historical guidance of what the Framers sought to preserve. "If that proves inadequate"  then  apply "traditional standards of reasonableness."  If ever you wanted to make sure that Scalia does indeed believe in a living and breathing constitution, and will abandon original intent interpretation of the Constitution when it suits him,  just re-read that last sentence.   
Query: What defines "traditional standards of reasonableness?"  Is it Justice Steven's definition, or Justice Thomas's definition, or Justice William O Douglas's standard? 

Answer: It means what Scalia individually wants it to mean.  It's  a subjective, emotional, result driven analysis, despite what he will otherwise argue. 

Scalia opines that the historical scope of an officer's ability to search a vehicle incident to arrest is "uncertain". Where does he justify that conclusion?   His recent concurring opinion in Thornton.

 See- this guy creates rules in one case, and then applies them in the next case, willy nilly. His concurrence in Thornton is arguably not even law, but that doesn't stop him. 

Is Scalia really a friend of the defense bar as certain federal bloggers insist? 

You tell me:

In my view we should  simply abandon the Belton-Thornton charade of officer 

safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the search is evidence of the crime for 

which the arrest was made, or of another crime that the officer has probable cause to believe occurred.  Because respondent was arrested for driving without a license (a 

crime for which no evidence could be expected to be found in the vehicle), I would hold in the present case that the search was unlawful.

Certain federal bloggers have pointed with enthusiasm at Scalia's concurrence in this case as evidence of Scalia's concern with individuals, privacy, and the rights of the accused. Nothing could be further from the truth. (Practice tip- read the concurrence before citing to it).

Scalia himself admits he is a reluctant participant in the Steven's opinion:

No other Justice, however, shares my view that application of Chimel in this context should be entirely abandoned.  It seems to me unacceptable for the Court to come 

forth with a 4-to-1-to-4 opinion that leaves the governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and 

Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by JUSTICE STEVENS. The latter, as I have said, does not provide the 

degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches—which is the greater evil. I therefore 

join the opinion of the Court. 

There you have it. An impassioned plea for a per se rule allowing warrantless searches of vehicles so long as officer Kreskin somehow knows the interior of the car contains evidence of the crime for which the defendant was just arrested. 

Hardly sounds like an impassioned defense of privacy rights, the rights of the accused, and the 4th amendment.  But then what do we know? 

We went to  school on the wrong side of the Charles river. (*) 

Coming soon: Alito and stare decisis

(*) Don't get too excited. In our view, that means everywhere from Kenmore Square to the Pacific Ocean. 


Anonymous said...


David Oscar Markus said...

Stop drinking 3 Red Bulls before you post... I see that you have no response to all of the other cases I cited to in my post. I await your answer to Crawford and Blakely -- the two most important criminal procedure cases of the last 10 years. Also, I didn't say that Scalia was always right or always great for criminal defendants -- I simply said that he is the most criminal defendant friendly (not too difficult on this Court). I'm not sure you have really responded to this.

As for Miranda -- I think we actually agree: Scalia would overturn it. (See his dissent in Dickerson; also note that the Court appointed Paul Cassel, a former Scalia clerk, to argue that Miranda was not constitutionally based). But I don't think Miranda is really in danger of being overturned. The Court just found in 2000 that Miranda was constitutional and good law.

Rumpole said...

Patience. Patience. I'm getting to those cases. One at a time. One must remember that unlike fancy federal blogs where the discussions often revolve around the intent and meaning of footnotes to annotations in the congressional record, my readers prefer a bit of law mixed in with stories of drunk judges dancing on table tops.

As to Miranda, I think Scalia is crafty enough not to vote for cert unless he thinks he can win, or at least chop off a leg. Let's watch what he does.

Red Bulls? Nah. Try running the Key Biscayne Bridge as the sun comes up. That will juice you up for the day.

Fake Vince McMahon said...

I'm thinking of promoting a Courtroom Cage Death Match between The Masked Rumpole and David Oscar Markus. But should it be in the REGJB or the federal courthouse?

Tickets available soon at the Clerk's Office.

Commodore said...

I hate these discussions about this.

I agree with Rumpole - Scalia Sucks, Thomas Sucks, Alito and Roberts Suck...All of our constitutional rights will be going away in the near future -- except our right to own and carry a gun.

David, get back over to your blog...unless you are going to post about some scandal in State Court.

By the way, I hear there was a David O citing in State Court last week -- What gives?

Anonymous said...

it took you 5 days to write this.

state hack. no one will read it.

stick to shumie time, clown

Anonymous said...

David Markus needs to ice his head

Anonymous said...

David Ranck arrested!

Rumpole said...

I'm not posting the comment about the lawyer who graduated from drug court because I view the comment as a backhand way of sliming him.

Yes it appears a senior asa was arrested for battery on a female pizza delivery person. More details when I can confirm more.

Shhesh, what a ridiculous thing to have happen.


Anonymous said...

Rumpole, you posted the freaking comment...dunce.

Anonymous said...

Good week for David "Mellow" Miller.....word on street is that Faxgate is officially muerte, and even better -- Dennis fired her JA and had her escorted from the building by her bailiff!

Cue soap opera music now.

Anonymous said...


David Ranck's pitiful pizza pie problem...story above

old guy said...

Yeah, it was Ranck. What a surprise!

Punched a female pizza delivery person, because she could not get past the gate + he socked her for being STUPID.

KFR, Horn -- wake up before this nut kills someone. Who cares that you are scared because he is suing you about the Barquin suspension.

Save the rest of us!

Anonymous said...

But you did post the drug court comment.

SleepyB said...

Hey Hey

My My

Sleepy B can never die

There’s more to this picture than meets the eye...

H.R. Twitter Snitch Club said...

Your fans are growing. What's the word big bird with your pals?

Who's banging who?

Who is doing what?

Rumpole said...

Mistake. It's down. Thanks, careful readers. Sometimes I clear stuff from my phone. I phones stink if you ask me.

Anonymous said...

David Ranck went off the reservation a few years back.

brian tannebaum said...

For those that remember Gregg Wenzel, I had the honor to be at the CIA today to watch as he was uncovered as one of the 90 CIA Agents killed in the line of duty since the inception of the Agency in 1947.

At the CIA Headquarters there are 90 stars etched in the wall signifying each Agent. Below the stars is a book that now has Gregg's name. Director Leon Panetta spoke about Gregg in front of a crowd of hundreds. He spoke of Gregg's work in the first class of Clandestine Agents post-9/11.

Here is a link to the story on cnn.com http://cnnwire.blogs.cnn.com/2009/06/01/cia-reveals-fallen-officer/

If you Google "Wenzel CIA" you will find other news outlets with the story.

Gregg's entire family was there as well as Bill Mulligan, Florida Bar Counsel, who worked with Gregg after he left the PD's office.

Here is the press release from the CIA website:


Anonymous said...

it's a tragedy. Now SAO has a legitimate reason to fire a genuinely good guy and a first rate prosecutor.

Anonymous said...

A friend that works with Maria Dennis's JA says that she was under tremendous pressure ever since she was pressured to lie for Maria after the fax event. The pressure and guilt got to her and it affected her relationship with Maria till Maria Dennis does what she does best; falsely accuse and discredit the person she thinks could hurt her. She did it to her ex husband, her past JA's, and she did it to Judge Miller. Remember Maria took her story all the way to Governor Charlie Crist and the JQC because nobody else below that believed her story including the Miami-Dade Police, SAO, Hispanic American Groups, and the Chief Judge. The JQC cleared Judge Miller of any wrongdoing a few weeks ago and Governor Crist ignored Maria Dennis’s arrogant demand for a special prosecutor to look at a simple battery allegation. It is evident that nobody wants to sit with Maria at public events except for the same few remaining friends. Maria is trying to somehow salvage some kind of dignity after the truth came out about the Fax Gate matter, but her recently fired JA may have the final word in her Judicial career. Most people in her shoes might have cut their losses and asked bailed out, asking for help, citing legitimate emotional issues for her antics. Instead Maria kept adding fuel to the fire continuously till she burned down her camp.