Today in Supreme Court History: January 24, 1968

1/24/1968: United States v. O'Brien argued.

 

Comments

[Dan Schiavetta]

Springer v. United States, 102 U.S. 586 (decided January 24, 1881): upholding federal income tax because it was not a "direct tax" such as has to be apportioned among the states by population (as is required by art. I, §2) (a later contrary decision led to the Sixteenth Amendment)

Panama Ry. Co. v. Pigott, 254 U.S. 552 (decided January 24, 1921): affirming Canal Zone District Court verdict for 7-year-old boy who was "run over" by a train (and still lived?); interesting because Holmes mentions that there was conflicting "testimony" from attorneys as to the law of Panama and judge had left that question of law for the jury (I once had a case transferred to Montreal and the Canadian attorneys told me that in that system "experts on the law" are allowed to testify -- maybe it's relevant that Quebec, like Panama, has a civil law and not a common law tradition)

National Organization for Women v. Scheidler, 510 U.S. 249 (decided January 24, 1994): RICO claim brought by abortion clinics against "pro-life" organizations can go forward because no economic motivation need be alleged (after years of litigation NOW finally lost)

Illinois v. Caballes, 543 U.S. 405 (decided January 24, 2005): appearance of second officer with cocaine-sniffing dog during traffic stop did not infringe Fourth Amendment where stop was not extended beyond the time it would ordinarily take to write the traffic ticket

Comm'r of Internal Revenue v. Banks, 543 U.S. 426 (decided January 24, 2005): if your recovery is taxable income (this was an employment discrimination suit), you have to pay tax even on that part that goes to the attorney (but the attorney pays on that amount also -- isn't that taxing the same income twice?)

[John F. Carr]

Contrary to Pigott, federal courts ruled against Maryland's constitutional requirement that juries were judges of law as well as fact.

Businesses arranged tax law so they can write off most human-related expenses. Tort plaintiffs need better lobbyists.

[Dan Schiavetta]

Do you have a cite for that?

[John F. Carr]

I haven't found the court case yet. The relevant language from the Maryland constitution is "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction." I believe it was overturned c. 1980. The language is widely cited in support of jury nullification.

[Dan Schiavetta]

Maryland was the only state founded by Catholics, and as I noted in my summary, the civil law system might have something to do with law being a "fact" issue for witnesses and jury. Catholic countries tended to be civil law countries, not common law.

[F.D. Wolf]

Today, it is axiomatic that the judge is determines questions of law, and the jury (when there is one) determines questions of fact. But this was hardly universally accepted in the Early Republic, and many lawyers felt they had a right to argue the law to a jury.

This was actually one of the central issues in the impeachment and trial of Associate Justice Samuel Chase (1804-1805) by the Jeffersonians. Joseph Fries had been convicted of treason and sentenced to death in a trial presided over Justice Iredell. Fries was granted a new trial, this time presided over by Justice Chase. Before the trial, Chase had prepared a memorandum of law for the jury. Fries' attorneys were incensed and refused to proceed, arguing that they had a right to argue the law to the jury. Fries was again convicted and sentenced to death. (He was later pardoned by President John Adams).

As curious as it seems today, that was actually one of the articles of impeachment - that Chase had denied a defendant his right to argue the law to a jury.

[Dan Schiavetta]

Thanks! As always. Interesting. As always.

[F.D. Wolf]

At common law, determination of foreign law was considered a question of fact, not of law. Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 38 (1801). ("That the laws of a foreign nation, designed only for the direction of its own affairs, are not to be noticed by the courts of other countries ...cannot be questioned.")

This was superseded by Federal Rule of Civil Procedure 44.1, adopted in 1966, which explicitly said it was a question of law to be determined by the court.

[Dan Schiavetta]

I don’t know, but that first policeman must have been a very slow ticket writer.

[Krayt]

Could police field a combined ticket-dog unit and do both every time?

If not, why not? Why play an idiotic game with magically-appearing dogs?

[John F. Carr]

If the traffic stop is arranged in advance, either on a tip or as part of a drug interdiction checkpoint, they will have a dog ready. If it is opportunistic they will have to call for a dog.

[apedad]

Warrantless drug interdiction checkpoints are illegal.

City of Indianapolis v. Edmond, 531 U.S. 32 (2000),[1] was a United States Supreme Court case in which the Court held, 6–3, that police may not conduct vehicle searches, specifically ones involving drug-sniffing police dogs, at a checkpoint or roadblock without reasonable suspicion.[2] In the case, the Indianapolis Police Department was conducting warrantless searches of vehicles, without individualized suspicion, for the purpose of "general crime control". (wiki)

Even if they have a tip, they better get a warrant.

[apedad]

I can see (and agree) with the difference between a DUI checkpoint (no warrant needed), and the drug checkpoint.

One (DUI), is PRIMARILY for safety purposes (don't want drunk drivers), while the other (drug interdiction), is a criminal matter.

[John F. Carr]

They can make pretext stops. Instead of stopping every car for a search they stop every car with a dark-skinned driver going over the speed limit, weaving, having a headlight out, etc. It functions like an illegal checkpoint without being illegal.

Back in the 1990s I read about a seat belt checkpoint based on that model. We have secondary enforcement in Massachusetts because voters killed primary enforcement. So police set up a speed trap on a highway that was posted 55 but everybody drove 70. If you were not wearing a seat belt you got a seat belt ticket. If you complained about being pulled over you got a speeding ticket. If you were respectful you were set free.

[apedad]

I agree with all that.

You just can't have a pre-text "arranged in advance."

Then you better have a warrant.

[John F. Carr]

But they do arrange them in advance. We got a tip that DeShawn is going to be driving from Baltimore to Philadelphia with a load of contraband. Let's stop him for speeding and confirm.

[Bob from Ohio]

"One (DUI), is PRIMARILY for safety purposes (don’t want drunk drivers), "

That's the spin. If so, the would just drive the drunks home.

DUI arrest is still an arrest.

[apedad]

Then you better have a warrant.

[Rev. Arthur L. Kirkland]

That’s the spin. If so, the would just drive the drunks home.

Many disparage this website's commenting system -- often for good reason -- but its ability to provide comments from the 1950s is a remarkable feature.

[David Nieporent]

You don't need a warrant to stop him for speeding.

[apedad]

True.

It's the "and confirm" part that needs the warrant.

[David Nieporent]

It’s the “and confirm” part that needs the warrant.

You don't need a warrant to search a vehicle. You do need probable cause. But of course a drug dog isn't deemed a search so you don't even need that. But you can't extend the stop to obtain a dog to do a sniff. So if you have a drug dog present when you stop him for speeding, you can confirm.

And there are other ways to develop probable cause during a traffic stop besides drug dogs.