Supreme Court Decision Allows Admission of Evidence After Illegal Stop

A recent U.S. Supreme Court decision is making headlines and putting people up in arms about the potential implications. Is it as bad as they say?  It definitely could play out that way and, although the Supreme Court allowed the admission of evidence obtained after an illegal stop, the Justices didn’t completely throw probable cause out the window.

The case stemmed from a surveillance operation of a home after local police received an anonymous tip suggesting frequent drug activity. Over the course of the surveillance, an officer observed numerous brief visits in and out of the house and eventually detained an individual, apparently at random, upon leaving the house.  The officer identified himself, asked the individual what he was doing at the house, requested identification, and then relayed the information to dispatch, subsequently finding an active arrest warrant for a traffic violation.  The officer arrested and searched him, and found methamphetamine and drug paraphernalia on his person.

The defendant moved to suppress the evidence based on an unlawful investigatory stop, i.e. no probable cause, which was initially denied. However,  the Utah Court of Appeals reversed and ultimately suppressed the evidence.  The Supreme Court disagreed.

The 4th Amendment and the Exclusionary Rule

The 4th Amendment protects us from unreasonable searches and seizures. Case law protects us from the admission of illegally obtained evidence—the exclusionary rule. Evidence obtained as a direct result of an illegal search and seizure, as well as evidence later discovered as part of that illegality, is not admissible.  You can’t use the fruit from the poisonous tree. Search

As with most things, exceptions apply and the exclusionary rule is no different. When the costs of exclusion outweigh its deterrent benefits, the exclusionary rule will not apply. Officers can admit evidence obtained from an unlawful search if that evidence was obtained from an independently acquired source or if it would have been discovered regardless of an unconstitutional source.  But, it’s the 3rd exception the Supreme Court used when handing down their recent decision.

The attenuation doctrine says when evidence “has become so attenuated as to dissipate the taint” it will be admissible. What does that even mean?  Evidence discovered through government misconduct is admissible if the connection between the misconduct and the discovery of the evidence is sufficiently weak.

Justice Thomas’s Majority Opinion vs. Justice Sotomayor’s Dissent

When applying the attenuation doctrine, courts are to consider:

  1.  “temporal proximity” between unconstitutional conduct and discovery of evidence to determine how closely discovery of evidence followed an unconstitutional search,
  2. “presence of intervening circumstances,” and
  3. “purpose and flagrancy of the official misconduct.”

Justice Thomas’s opinion explains discovery of the defendant’s “valid arrest warrant was a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence…” The opinion rationalizes, although the temporal proximity of time between the illegal stop and discovery of evidence favors suppression, presence of a valid arrest warrant unrelated to an illegal stop and a lack of purposeful or flagrant disregard for constitutional rights is enough to weaken the casual link.

The opinion goes on to explain, despite the fact that the officer should have asked the defendant if he could speak to him, rather than demanding so, these mistakes didn’t rise to the level of a 4th Amendment violation, but merely “at most negligent” and an “isolated incident in connection with a bona fide investigation of a suspected drug house.” Nothing prevents an officer from approaching an individual simply to ask.

Justice Sotomayor’s dissent argues pretty flawlessly the decision allows officers to stop anyone off the street, ask for their license, check for pending warrants, even small ones such as unpaid traffic tickets, and ultimately forgive any officer wrongdoing upon finding an arrest warrant.

“Fruit that must be cast aside includes not only evidence directly found by an illegal search but also evidence ‘come at by exploitation of that illegality’”

Asking questions doesn’t result in a seizure, but, Justice Sotomayor explains, the officer “exploited his illegal stop to discover” the drugs. The drugs were found only after learning of the traffic violation and he only learned of that traffic violation because he unlawfully stopped to check the defendant’s license. Classic fruit of the poisonous tree argument.

Further, she reasons the officer acknowledged his sole purpose for stopping the defendant was investigative and not an isolated incident. Warrant checks incident to a traffic stop are integral to the safety of the roadways whereas, here, the officer had no probable cause to believe the defendant was a danger.  Justice Sotomayor goes on to explain the warrant check was for the sole and hopeful purpose of finding something against the defendant.  In other words, finding an arrest warrant wasn’t an intervening circumstance leading to a break in the casual link.

Although Justice Sotomayor’s dissent that the majority wrongfully applied the rule hit the nail on the head, the silver lining is that the majority opinion rests on the particular facts of this case and doesn’t seem to be intended as a blanket rule applying to any illegal stops. However, in application, the effects of this ruling will inevitably be challenged and it will be interesting to see how this decision’s applied in other situations.

Church Asked To Leave Their Lease Early Because of Orlando Comments

What was meant to be a fun night out turned into a gruesome crime scene when Omar Mateen, a 29-year-old American, gunned down 49 people and injured 53 inside a gay nightclub in Orlando, Florida. It was the deadliest act of violence against the LGBTQ community in U.S. History.

Shortly after the horrendous tragedy, a video emerged on YouTube of Pastor Roger Jimenez of Verity Baptist Church in Sacramento, who praised the gunman’s actions. He went on to call the victims pedophiles and predators.

“I think Orlando, Florida, is a little safer tonight,” he told his congregation after the Orlando attack. “The tragedy is more of them didn’t die – I’m kind of upset he didn’t finish the job!”

Now, Verity Baptist Church’s landlord, Harsch Investment Properties, is asking them to move immediately. Although their lease doesn’t end until March 31, 2017, Harsch is requesting they leave without any penalty for breaking the lease agreement early. Their reason? They support the LGBTQ community and other organizations whose missions are to “further respect, dignity and the ability for all individuals to live their lives as they wish.”

Are there any arguments the church can make to continue to rent the property?

Can a Landlord Legally Require a Tenant to Break the Lease?

A lease is a binding contract, and the terms of the lease control. A landlord cannot coerce or legally require a tenant to break a lease unless both landlord and tenant agree in writing to change the terms of the lease. Roger Jimenez

However, a landlord can evict a tenant if the tenant breaches the contract. In other words, if the tenant does something that the lease specifically prohibits, the landlord can begin the eviction process. For example, if a landlord leases his property to a church and the lease doesn’t allow subleasing, the church cannot rent the space to a law office as that would be considered impermissible subleasing.

In this case, Harsch Investment Properties cannot require the church to move out based on Pastor Jimenez’s comments unless those comments would violate a clause in the lease. Notwithstanding, the church can elect to move at Harsch’s request and would not be penalized for breaking the lease.

Religious Discrimination?

If the church is feeling threatened or coerced to abruptly break their lease, they may argue they are being discriminated against based on their religious beliefs. Religious discrimination is treating a person or group unfavorable because of their religious beliefs. The law protects people who belong to traditional, organized religions, but also others who have sincerely held religious, ethical or moral beliefs, in both employment and housing settings.

Here, the church has several arguments. First, they may argue that their religious beliefs prohibit them from supporting the LGBTQ in any capacity, and that asking them to leave their lease is discriminatory based on their religious beliefs. Because Harsch Properties has no legal right to require the church to break their lease, this argument would prevail.

Second, the church may want to distance itself from Pastor Jimenez himself. The church could argue that Pastor Jimenez’s beliefs and what he preached did not reflect the ideals of the church, and therefore, they should not be required to leave the property. Again, because Harsch Properties has no legal right to require the church to move, this argument would also prevail.

Understanding Hate Crime Law in the Wake of Orlando

The recent attack on the Pulse nightclub in Orlando was the deadliest shooting in U.S. history. It was also motivated by hatred against the Lesbian, Gay, Bisexual, and Transgender (LGBT) community—a community that is already under siege.  Within a week of the tragedy in Orlando, a black transgender woman was bludgeoned to death, then burned in a car.

Violence against the LGBT community, motivated by prejudice and hatred, is terrifyingly widespread. In 2014, the FBI reported that 20.8% of all hate crimes committed are based on perceived sexual orientation.  This number was up more than 6% from 2005.  Per capita, more hate crimes are committed against the LGBT community than any other group.

Hate crime laws are designed to punish those with a motive of hatred. They often involve especially serious penalties for these especially despicable crimes.

U.S. Hate Crime Law Protecting the LGBT Community

Hate crime laws are not uniform in the U.S.; different states have different approaches.  However, hate crimes can generally be discussed as crimes motivated by bias or prejudice against a protected group.

When a crime is considered a hate crime, an enhanced penalty is applied to the perpetrator.  A few examples of crimes that can be enhanced when motivated by prejudice against the victim include: assault, murder, rape, sexual assault, vandalism, defamation, denial of certain rights, and others.

In 31 states, a hate crime also gives rise to a civil cause of action above and beyond the enhanced criminal charges brought against the perpetrator.  This civil lawsuit is brought by the victim of the hate crime or their surviving family. Flag

Exactly what constitutes a protected group varies from state to state.  However, common protected groups include race, age, sex, gender, disability, gender identity, and sexual preference or orientation.

Protection based on sexual orientation has been expanding following the premeditated torture and murder of a young homosexual man—Matthew Shepard—in 1998. The accounts of a young man so badly beaten that his entire face was covered in blood, except where his tears washed it away, helped shock the nation into taking action.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was passed into law in 2009. The name alongside Shepard, James Byrd Jr., is the name of an African-American man dragged behind a truck and ultimately beheaded by white supremacists in 1998.  The measure expanded federal hate crime law to include more types of crimes and included sexual orientation, perceived gender, gender identity, and disability as protected classes.  It has not yet been applied in a case involving a hate crime against the LGBT community.  However, it has been used in several cases achieving a conviction, including a case where a New Mexico man branded a swastika onto a disabled Navajo man.

Despite these advances, sexual orientation and gender identity are not protected nationwide. The federal law discussed above only applies where federal criminal jurisdiction exists—a very limited set of cases.  Only 31 of the 50 states, along with the District of Columbia, treat sexual orientation as a protected group.  Gender identity receives even less protection, with only 17 states treating it as a protected group.  There are currently 5 states that have no hate crime laws whatsoever—Arkansas, Indiana, Wyoming (the state where Matthew Shepard was murdered), Georgia (whose statute was struck down by the Georgia Supreme Court in 2004) and South Carolina.

Terrifying Times and a Community Standing Strong

The crimes against the LGBT community are unconscionable. The unfortunate truth is that we live in a time where such crimes border on commonplace—in 2014 there were an average of 3.5 hate crimes committed against the LGBT community reported every single day.  This number does not include hate crimes motivated by multiple factors and represents numbers in a notably underreported area of crime.

The bravery of the LGBT community in standing up and being true to themselves in the face of these attacks is awe inspiring. Hate crime laws provide important protection for a targeted group, knowledge of these laws can hopefully help in some small way by allowing those who have been victimized turn a system which has mistreated them at every turn towards helping keep those who would harm them off the streets.

The hope is that the increased penalties will discourage people from committing crimes based on their prejudice. Expanding hate crime law in the states that either have no hate crime laws whatsoever or don’t include sexual orientation and gender identity as a protected group is an important first step.

However, hate crime laws are not enough. The problem is not one that can be totally addressed by any law.  While the importance of legal protection through hate crime legislation and equal rights cannot be overstated, it is the society that creates the laws that places the LGBT community in the most danger.  We have made progress over the last century, but the societal stigma around those who love others of the same sex or do not identify with their biological gender is the true problem.

To call solving this issue complicated is beyond an understatement. However, there are simple steps that anybody can take to help prevent violence against the LGBT community.  Speak out when you see prejudice.  This can mean reporting hate crimes you witness or hear of, hate crimes are currently highly underreported.  It can mean also be as simple as calling out prejudice within your own neighborhood, political leaders, or media personalities.

Support the LGBT members of your community. This can involve as little as providing a sympathetic ear or as much as working alongside groups committed to stopping violence against the LGBT community such as the Matthew Shepard Project.

What happened at Pulse night club was a tragedy. Preventing tragedies such as this in the future will require changes in law and social perception.

Employers On the Hook for Caregiver Discrimination

Employees are winning discrimination cases against their employees based on family care discrimination, which has increased by 269% in the last decade alone.  Of the lawsuits filed within that time frame, nearly $500 million has been paid out in verdicts and settlements in favor of an employee.

If you’re not familiar with it, caregiver discrimination, or family responsibilities discrimination, is a form of employment discrimination that’s based on an employee’s responsibility to care for family members. Obviously, a mother caring for a sick child is the most obvious case of caregiving responsibility, but many don’t know it also applies to caring for a sick parent or spouse with a disability.

The Equal Employment Opportunity Commission recently published reports that show at least 70% of U.S. households with children have all adults in the household in the workforce, which explains why the increase in caregiver discrimination cases.  Of that workforce, 46% are women and of those women, 81% have children. That’s a significant amount and it’s inevitable that, at some point in time, one of those parents will have to miss work to care for their child. At least 25% of families take care of aging relatives, while 10% take care of both aging relatives and children.

When you consider the fact that, at some point in time, most of us will have someone to take care of, whether it be a child, spouse or parent, employers should be careful with how they handle their employees’ family situations.

Obvious and Intention Discrimination Aren’t the Only Basis for Lawsuits

Discrimination in the workplace can come in many forms and can include:

  • firing pregnant employees because they are pregnant or will take maternity leave,
  • failing to promote an employee based on the fact that they are pregnant or have a young child at home,
  • purposefully giving employees work schedules they know they cannot meet due to childcare reasons while giving other employees flexible schedules,
  • fabricating work infractions or performance deficiencies, or
  • otherwise penalizing an employee because they have legally taken time off to care for a family member.

Caregiver discrimination can be any adverse action taken against an employee because of their caregiving responsibilities. Caregiver discrimination doesn’t have to be as clear as firing a pregnant employeePregnant and Working

According to a report written by Cynthia Calvert, senior advisor to the Center for WorkLife Law at the University of California’s Hastings College, discrimination can be as simple as a supervisor refusing to allow a pregnant employee to take a break as directed by her doctor.

What about a father who occasionally misses work to stay home to care for his child and is excluded from work meetings and subsequently punished for infractions others may commit without any repercussions? How about an employee who requests to miss work to take their parent to a doctor’s appointment and their request is denied?  It can be easy for an employer to commit caregiver discrimination without intending to do so and without knowing that their decisions are illegal.

Employees Can Hold Their Employers Accountable For Caregiver Discrimination

Caregiver discrimination or family care discrimination isn’t specifically spelled out within the Civil Rights Act, but it could fall under employment discrimination based on sex and an employee’s association with an individual with a disability. Some states have their own laws on the books to protect employees, but as stated above, caregiver discrimination isn’t specifically prohibited under federal law.

Employees will need to look to their specific state law for remedies available to them if they’ve been discriminated against. Massachusetts and Pennsylvania have tried to introduce measures that would strictly prohibit employment discrimination based on familial status, marital status, and family caregiver status, while Michigan and North Carolina are slowly introducing measures that suggest a change in the future.

Federal employees can contact the U.S. Office of Special Counsel for help.

Employers Need to Implement Proper Policies and Work with Employees

To help curb these types of lawsuits, companies need to make sure they have policies in place to act as a system of checks and balances for the policies they do have. Whether those policies be through their hiring practices, attendance policies, promotion policies, incentive pay and benefit standards, and leave policies, companies need to make sure they aren’t negatively impacting their employees.

The EEOC recommends companies have prevention programs in place that both educate and train management so they’re aware of the legal obligations impacting workers with caregiving responsibilities. Companies need to train managers on what constitutes family responsibilities discrimination and how to handle any complaints.

With the rise in caregiver discrimination lawsuits, if employers don’t begin to work with employees to accommodate their needs to care for a family member, it’s going to keep costing companies big. Besides the financial implications, employers risk the loss of loyal employees to companies that are willing to be more accommodating.

Tragedy Sparks Gun-Control Policy Change for Government’s No Fly List

It’s no surprise that the tragedy of the recent Orlando massacre sparks yet another heated political debate on our country’s gun-control policy. If you’ve been following recent news, presidential candidates have both introduced new gun-control measures they believe will solve this country’s mass casualty problem at the hands of gun use.

Presidential candidate Hillary Clinton plans to strengthen background checks for those trying to purchase a gun, while Presidential candidate Donald Trump is generally against any major gun control policy change. One thing both candidates have seemed to agree on since the news of the Orlando tragedy is that no one on the government’s “No Fly List” should not be allowed to purchase a gun.  This has sparked an even bigger debate about whether enforcing stricter gun-control measures against those on the no-fly lists is even constitutional to begin with.

The National Rifle Association (NRA) believes, “Restrictions like bans on gun purchases by people on ‘watch lists’ are ineffective, unconstitutional, or both.” The American Civil Liberties Union (ACLU) has expressed a similar position in that the current issues with the no-fly lists should be fixed before restricting gun rights.

According to the group’s National Security Project Director, “The standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error…” The group hopes to help implement change to allow those on the list a proper means to challenge their placement on the list because of the significant consequences it can have on an individual’s life.

If You’re On the List, You Won’t Be Getting In or Out of the Country

The No Fly List prohibits individuals on the list from boarding any commercial aircrafts for travel in or out of the United States; it was created after the attacks on 9/11 to prevent specific known or suspected terrorist threats. TSA Security

Obviously the easiest way to end up on the list is to be suspected of direct terrorist activity. How the government determines you to be a suspect of terrorist activity is unclear.  Reportedly anyone arrested or convicted for acts of terrorism, bombers, hostage takers, assassins, and associates of terror groups are among the list.  Frequent travel to certain countries will likely get you on the list as well.

Many critics argue non-violent political activists or social media users can get put on the list for things they say that the government deems worrisome. Others argue they were put on the list because they refused to be informants for the government.

Clerical errors are another way to get on the list; either by having a similar name or someone making a mistake when adding a name to the list. Those with warrants out for their arrest or suspicions of other criminal activity unrelated to terrorism have been known to be on the list as well.

Possible Due Process and Civil Liberties Violations

Scrutiny of the list began early on because no one really knows the exact process the government uses to add people to the list. The government maintains secrecy is necessary for national security. It definitely makes sense that a level of secrecy is needed, as you don’t want potential terrorists to be tipped off, but it’s a fine line to draw between national security and constitutional due process protections.

In 2005, TSA officials stated that at least 30,000 people had complained that their names were on the list and were only matched within the system because their names were an exact match to someone else. Passengers are not told when they book a ticket that their name has been flagged and don’t usually find out about it until they go to check in the day of their flight. Once they arrive and are told they can’t fly due to being on the list, they’re not going anywhere unless they can differentiate themselves and this leads to missed flights and a denial of boarding access all together.

Obviously that’s a problem when a person that isn’t supposed to be on the list has a name that matches someone else. With such secrecy about the list, it’s hard to determine whether due process rights are being protected and whether the government is providing the proper means to get off the list if wrongfully put on it.

Getting Off the List Isn’t Easy

Critics argue it’s nearly impossible to get off the list once you’re on it. There is a procedure available for travelers who are delayed or denied boarding an aircraft. Travelers can complete an online application at the Department of Homeland Security website, which requires several identifying documents. Once reviewed, the traveler will be notified via letter whether any corrections of data information have been changed, but it doesn’t typically take a traveler’s name off the list and doesn’t usually provide a wealth of information.

It’s a process and definitely not an easy one. It’s a major problem because travelers aren’t always told why they’re on the list, the reasons they’re barred from travel, or given a chance to challenge the findings that put them on the list in the first place.



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