About three weeks ago the Supreme Court handed down a remarkable decision on the Second Amendment, in which the high court vacated a ruling by the Supreme Judicial Court of Massachusetts upholding that State’s ban on stun guns. The Massachusetts Court had held that stun guns are not protected by the 2nd Amendment first, because stun guns were not in common use at the time of the 2nd Amendment’s enactment; second, because it deemed stun guns to be “dangerous and unusual weapons” prohibited at common law; and third, because stun guns “are not readily adaptable to use in the military.” The Supreme Court rejected each of these findings in turn as being in conflict with its holdings in District of Columbia v. Heller, as applied to the States by MacDonald v. Chicago. This much is unsurprising. What is surprising, however, is that in rejecting the Massachusetts Court ruling, the Supreme Court did so by a vote of 8 – 0: meaning that the conservative wing of the court, that supported Heller and MacDonald, and also the liberal wing that was in opposition, voted to overturn the lower court’s ruling.
Heartening as such a ruling may be to those of us interested in the Second Amendment, the practical lesson that this case offers to the average person about how to protect their rights actually lies in a different direction altogether. Buried deep in Justice Alito’s concurring opinion is following description of the events leading up to the arrest of Ms. Caetano, the Petitioner:
“In September 2011, police officers responded to a reported shoplifting at an Ashland, Massachusetts supermarket. The store’s manager had detained a suspect, but he identified Caetano … as [a] potential accomplice. Police approached [her] and obtained Caetano’s consent to search her purse. They found no evidence of shoplifting, but saw Caetano’s stun gun” (emphasis added).
Justice Alito explains elsewhere in his opinion just why Ms. Caetano had that stun gun: as protection against an abusive ex-boyfriend who “towered over her by nearly a foot and outweighed her by close to 100 pounds.” Thus, by agreeing to allow the police to search her purse for non-existent evidence of shoplifting, Ms. Caetano became a felon for possessing a non-deadly weapon for the sole purpose of fending off a clear, present and imminent threat of death or bodily harm at the hands of a former boyfriend. It remains to be seen how Ms. Caetano’s case will be resolved. The Supreme Court vacated the judgment and sent it back for further proceedings to Massachusetts, where that State will likely work hard to find some rationale to uphold their stun-gun ban that can withstand Second Amendment scrutiny, leaving Ms. Caetano a felon if they succeed (and, ironically, rendering her ineligible to possess a weapon to defend herself with that is legal – a firearm).
Are you facing criminal charges in Virginia or Maryland stemming from evidence the police seized after searching you or your belongings without your consent? If you did consent to the search, did the police behave in a way that led you to believe that you were under arrest, that you were not free to go, or that you were obligated to allow the police to search your property? If so, the Virginia & Maryland attorneys at SRIS Law Group, PC, want to help you. Contact us immediately for a consultation regarding a potential violation of your Fourth Amendment rights today.
Thus, the first barricade in the defense of Ms. Caetano’s rights was not the 2nd Amendment, but rather, the 4th.
The 4th Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Had Ms. Caetano refused consent to allow the police to search her purse, and had they insisted upon searching it anyway, she could later have argued that the police did not have probable cause to conduct the search and that have the stun gun should be inadmissible at trial. If successful, this argument would have left the Commonwealth with no evidence and no case. She would have walked, with no loss beyond the loss of the stun gun itself and her attorney’s fees. Unfortunately, Ms. Caetano surrendered this argument the moment she voluntarily agreed to allow the police to search her purse, depriving her attorney of his or her best line of defense and forcing him to rely upon the Second Amendment argument, the outcome of which is much less certain.
The lesson for all of us is clear: Under the 4th Amendment, the Police may not search your or your property without probable cause. If they ask for your permission to conduct a search, you have a right to say no – EXERCISE THAT RIGHT. The police may feel that they have sufficiently strong reason to go ahead and search anyway. You should not resist or obstruct them if they do – but you need to make clear that they do not have your permission or consent to do so. That way, you preserve your right to challenge their search later.
Are you facing criminal charges in Virginia or Maryland stemming from evidence the police seized after searching you or your belongings without your consent? If you did consent to the search, did the police behave in a way that led you to believe that you were under arrest, that you were not free to go, or that you were obligated to allow the police to search your property? If so, the Virginia & Maryland attorneys at SRIS Law Group, PC, want to help you. Contact us immediately for a consultation regarding a potential violation of your Fourth Amendment rights today. B