August 29, 2008 By Wallin & Klarich

Previously, we discussed how the Supreme Court’s Heller opinion might impact upon specific pieces of legislation that might impinge upon the individual right to “keep and bear arms.” In this final installment, we discuss how the Court’s opinion might impact certain law enforcement practices.

Specifically, we begin with this concluding observation by the majority opinion in Heller:

“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government-even the Third Branch of Government-the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people-which Justice BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

We see here that the High Court has observed that, among other things, the right guaranteed by the Second Amendment is the right of the individual to “use arms in defense of the hearth and home.” The High Court equated this right with rights guaranteed by the First Amendment. How, perchance, could this language impact law enforcement investigations?

Consider this. Before police may search a person’s home, generally, they are required to obtain a search warrant from a judge. In order to get a search warrant from a judge, the police officer must present evidence, under oath (generally in the form of a written sworn affidavit), to the judge that sets forth “probable cause” to believe that the home contains evidence of a crime, such as a federal offense or domestic violence. In the officer’s affidavit, the officer spells out why the officer has reason to believe that there is evidence of crime in the home. In many affidavits, officers will attempt to bolster their showing of probable cause by setting forth evidence they have that persons in the home have firearms, and the judge will take that into consideration in determining whether probable cause exists.

Furthermore, when officers search a car, they are required to show that they had “reasonable suspicion” that the car contained evidence of crime. When officers are asked for the reason for the search, they will often cite to facts that led them to infer that the driver had a gun.

Thus, it would seem that the police, in attempting to establish or bolster a showing of “probable cause” required justifying a search, are using the fact that a person, potentially consistent with his or her rights under the Second Amendment, may be in possession of firearms. If the police are, in essence, targeting individuals who choose to exercise their Second Amendment rights, can it not be said that they are unfairly restricting the exercise of a fundamental constitutional right?

Consider a recent case out of the U.S. District Court for the Western District of Texas in San Antonio. In the case, United States v. Magana, SA-07-CR-470-RF (decided March 13, 2008), officers stopped the defendant’s vehicle because they observed that the tire looked damaged – a violation of the Texas Transportation Code. Once they pulled the vehicle over, they realized that the tire was not, in fact damaged and that no violation occurred. In spite of the fact that they had realized that no violation of law occurred, officers, instead of letting defendant go, prolonged their detention of the defendant. Among the reasons given for prolonging the detention was that the defendant was nervous and he had a statue of the Virgin Mary on his dashboard. The officer testified that, in his experience, people who have drugs in their car will often display religious items in order to deflect suspicion away from them, and, because the defendant here had the Virgin Mary statue, it caused him to suspect that defendant had drugs in his car. A search of the defendant’s car revealed that the defendant was in possession of illegal drugs was subsequently charged with violating federal drug laws. Defendant moved to suppress the evidence found by the officer. The Court, in granting the defendant’s motion to suppress, found that the officer’s reliance on the fact that the defendant had a religious symbol in his car to establish reasonable suspicion to search the car, unconstitutionally infringed upon the defendant’s First Amendment rights to free exercise of religion and freedom of speech. The Court, quoting its own prior ruling in United States v. Ramon (W.D. Tex. 2000) 86 F. Supp. 2d 665, 676, found that “[e]ven though the display of religious decals may not be a tenet of any religion, the right to emphasize one’s religion by such a display cannot be burdened by a governmental policy of targeting individuals who choose to do so.”

The Magana Court also went on to cite another case, Estep v. Dallas County, Texas (5th Cir. 2002) 310 F.3d 353. In Estep, officers stopped defendant’s vehicle for speeding and an officer searched defendant’s car and found a gun. One of the reasons cited by the officer in support of his belief that the defendant had a gun in his car was that the defendant had a “National Rifle Association (NRA)” bumper sticker. The Estep Court, in determining that the presence of the NRA sticker should not lead to the inference that defendant was dangerous, found that “[r]egardless of whether there is some correlation between the display of an NRA sticker and gun possession, placing an NRA sticker in one’s vehicle is certainly legal and constitutes expression which is protected by the First Amendment. A police officer’s inference that danger is afoot because a citizen displays an NRA sticker in his vehicle presents disturbing First and Fourth Amendment implications.” (Id. at p. 358.)

So, it would seem that courts are highly suspect of officers who base their decision to search a defendant based upon the defendant’s exercise of his or her rights under the United States Constitution, specifically, in Magana, Estep, and Ramos, the exercise of rights guaranteed by the First Amendment. Well, given the language of the Court in Heller to the effect that the Second Amendment is on par with the First Amendment, there is certainly a compelling argument that an officer’s decision to search a suspect based, in whole or in part, upon the officer’s belief that the suspect might be exercising his or her rights as guaranteed by the Second Amendment is no less “disturbing” than an officer’s decision to search a vehicle because the suspect has a Virgin Mary statue or NRA bumper sticker. Of course, on the flip side, there is little chance that a person will be able to do much harm to an officer using a bumper sticker or Virgin Mary figurine as a weapon, whereas firearms do carry the potential to cause great injury and death.

Given these competing concerns, it would seem that, in future cases, courts will certainly have to address the issue of whether law enforcement searches, based potentially upon a suspect’s decision to exercise his or her Second Amendment rights, have the effect of unfairly suppressing citizens’ exercise of those rights, and what safeguards should be put into place to discourage officers from suppressing Second Amendment rights, while at the same time protecting the safety of officers and society as a whole.

The California criminal defense attorneys at Wallin & Klarich have over 30 years of case experience in handling violent crimes like assault and domestic violence. If you or a loved have are facing California felony charges or misdemeanor charges you need to call the law offices of Wallin & Klarich, toll free, at 888.280.6839. The consultation is free and we will be there when you call.

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