A Fresh Take on Gun Control

Photo by Pixabay on Pexels.com

The gun control debate recycles more haggard and stale arguments than other issues in public policy. The talking points of both sides of the Second Amendment have become warn-out platitudes that lack facts, context, or intellectual depth. All these two-dimensional pithy statements fit handsomely on a bumper sticker. Intellectually honest or curious individuals would insist that further elucidation is required. 

However, there may be a novel anti-gun control argument that few commentators have explored. See below from philosopher Michael Huemer:

“…As in Example 1, except that Victim has a gun, which he would use to defend himself against Killer. Before he can do so, Accomplice grabs the gun and runs away, with the result that Killer is able to stab Victim to death.

Q: How wrong was Accomplice’s action in this case?

A: This case is morally comparable to Example 1. Again, Accomplice violates Victim’s right of self-defense in a way that predictably leads to Victim’s death. This is comparable to murder.

The government does not know specifically which people will thus be victimized, but we know a large number will be, and our not knowing their specific identities is morally irrelevant. So strong gun control laws are similar to the Accomplice’s action in Example 2.”

We frequently hear the right to self-defense as one of the key arguments supporting the Second Amendment of the U.S. Constitution. Few gun rights activists squarely address (from a moral context) the government’s culpability in victimizing law-abiding citizens in instances of strict gun regulations. Too often, they rely on the concise statement “guns save lives”. There is some truth to this statement, but what did the government do when they restricted gun access to the victimized individual? In effect, these laws were analogous to restraining someone while they were being robbed, assaulted, or raped, making the state complicit in the crime. Stringent controls on personal possession of weapons have a greater degree of ethical depth than the conspiratorial narratives of “gun grabs” spun by populous conservatives. A government using legislative fiat to deprive its citizenry of access to weapons is morally equal to a rapist, thief, or murderer.

Suicide as a Natural Right- Part III: The Externalities Argument

Photo by cottonbro on Pexels.com

Part I:

Part II:

Most legally mandated suicide prevention measures fixate on its impact on society. An individual assuming an externalities defense of the involuntary hospitalization of those with suicidal tendencies falls prey to a fallacy that all prohibitions of vices are subject to operating as a preemptive measure. Prompting the question, what is the committed offense outside of the state statutory code? What most Libertarians would refer to as victimless crimes. Enforcement of victimless crimes does not remedy the loss of property or harm to any non-consenting third parties. Rather, such laws have the unfortunate propensity of conflating potential consequences with actual damage done. Most arguments for maintaining the federal ban on illicit drugs emphasize prospective ramifications versus actual outcomes. Even drunk driving laws fail to meet the criteria for a violation of our private property rights. Operating a motor vehicle while intoxicated only increases the odds of bodily harm and destruction of property, but it does not guarantee this consequence. 

US civil law no longer recognizes personal suicide attempts as a criminal offense. However, the criminality of physician-assisted suicide varies radically by state. Suicide is no longer a crime. Suicide prevention laws are completely constructionist inventions. More importantly, it also fails to fulfill the criterion for violating another person’s natural rights. Arizona has an involuntary commitment law codified under Title 36 of Arizona Revised Statutes. If there is no crime committed, can detention be perceived as lawful?

Such fits the definition legally sanctioned form of kidnapping. The basis of the logic of the Fourth and Fourteenth Amendments provides fodder. If it were not for Title 36, it would be considered unlawful confinement. The only rational inference is that these mandates are the illegitimate byproduct of legal positivism. The standpoint drove by a “moral” concern for potential externalities. Codifying morality is never a justifiable reason for exercising the authority of governing institutions!

Caniglia v. Strom- A Triumph for the Fourth Amendment

Photo by EKATERINA BOLOVTSOVA on Pexels.com

Over the past couple of years, it appears as if the Fourth Amendment has been under attack. However, despite the headlines being flooded with stories of no-knock warrantless entries ending in tragedy, there still have been some minor victories. One shining example was the Supreme Court ruling in Carpenter V. United States (2018). In which, the high court ruled that conducting warrantless seizures of phone records and tracking the location of cellphone users be unconstitutional. Back in May, the Supreme Court once again did the Fourth Amendment justice in its decision in Caniglia V. Strom (2021). In its ruling, the court implemented effective judicial limits on the Community Caretaking Doctrine

The SCOTUS held that this legal construct that has been traditionally applied to automobile searches did not extend to the home. Some legal experts such as Josh Blackman may have criticized the ruling for lacking any discussion of “originalism”. Regardless of the imperfect logic upholding this ruling it effectually upholds the sanctity of our homes. Reinforcing the notion that the home is still in fact our castle. 

What Is The Community Care Taking Doctrine?

The Community Care Taking Doctrine was devised in the early 1970s as a result of the Cady v. Dombrowski (1973) case. The petitioner, a Chicago police officer, had been involved in a drunk driving accident and had left his service revolver in his vehicle. The court viewed this action on the part of the local police department to be legitimate. Recovering the weapon would protect the public from it “… falling into the wrong hands”. Operating within the public interest absent any intentions of criminal enforcement. While Cady may set the stage for warrantless searches for noncriminal purposes it never directly addresses the application to the home. The doctrine has over the years has been expanded to justice application to homes. One notable example being the United States v. Rohrig (1996), where police entry an unlocked home due to a noise complaint.

There is a long case history of warrantless searches of automobiles pre-dating the advent of the Community Care Taking Doctrine. Starting with Carroll v. the United States (1925) citing the mobile nature of cars necessitating the need for warrantless searches. The courts have also ruled in a subsequent case that there is a lower expectation of privacy in automobiles. Making cars distinct from houses in Fourth Amendment jurisprudence. In Caniglia, this distinct was used to curb the First Circuit Court of Appeals expansive interpretation of the doctrine. Justice Thomas even stated in his opinion that the First Circuit’s verdict “… goes beyond anything this Court has recognized…”.

The Facts of Caniglia v. Strom

The case stems from an argument between spouses Edward and Kim Caniglia. Mr. Caniglia became upset and brought out a pistol requesting his wife to shoot him. Mrs. Caniglia decided to spend the night in a hotel to allow her husband some time to calm down. The next morning not having heard back from Mr. Caniglia, Kim called the Cranston police to conduct a welfare check on him. Responding officers reported that Edward appeared to be stable and he consented to be sent to a psychiatric hospital for evaluation on the condition that his firearms were not confiscated. While hospitalized, the Cranston police came by his home to retrieve his firearms. Officers erroneously informed Mrs. Caniglia that Edward had consented to his firearms being seized. Upon release from the hospital, he made several failed attempts to reacquire his firearms. He then “… filed a lawsuit under Section 1983..” arguing that the confiscation of his guns violated his Second and Fourth Amendment rights. The First Circuit ruled that the officers’ actions were permissible under the Community Care Taking Doctrine.

Mr. Caniglia’s petition made its way up to the Supreme Court. As a result of the unanimous decision among all nine justices. The general message of the decision was that the First Circuit was out of line with its expansive interpretation of the doctrine. The First Circuit clinging to the reasoning that exigent circumstances justified the removal of the petitioner’s guns. Since the actions to protect the petitioner and any potential bystanders did not constitute “…the normal work of criminal investigation..” making this action a Community Care Taking function. However, the ruling held that the right to privacy in the home is Constitutional distinct, citing Florida v. Jardines (2013). The court finding this expansion of the doctrine to not be justifiable in previous case precedence.


Let the Caniglia decision be a ray of hope for all Fourth Amendment advocates. The Supreme Court took a firm stance against the reasonable expansion of a doctrine validating warrantless searches. The slow progress of policing reform may be disheartening. The advances in surveillance technology may be horrifying and often outpace the law. That does not mean the courts cannot formulate rules that are faithful to our Constitutional rights.

Community Care Taking Doctrine- A Windfall for Incriminating Evidence

Photo by Sora Shimazaki on Pexels.com

We frequently hear back about the erosion of our civil liberties. Often various pundits, bloggers, and even judges fervently debating the scope and applicability of our Constitutional rights.  Even in an era of the expansive “police state” it is important to celebrate the small victories. Even gaining an inch is as good as gaining a mile. The outcry for policing reform over the past year (since the murder of George Floyd) has reanimated the civil liberties debate. Unfortunately, someone had to be martyred to shift the public discourse in the correct direction.

Considering this renewed public consciousness of civil rights, crucial that we hold public officials accountable. This has been observable by the recent reforms regarding Qualified Immunity at the state level.  Accountability isn’t limited to just immunities and privileges granted to government employees, but also to how our laws are enforced. Anyone serving on the behalf of the public should perform their job function in a manner that is faithful to our Bill of Rights. Not execute their job functions in a way that will trample our rights as private citizens. This is why the Supreme Court’s opinions on civil liberty cases are crucial in insulating us from extralegal and invasive procedures from our civil servants.

The Fourth Amendment has arguably been one of the biggest casualties of technological advancement and doctrinal exceptions developed in previous case precedence. With the rapid evolution of surveillance technology coupled with judicially crafted loopholes, our expectation of privacy has greatly diminished. One doctrine that has developed from case law has had the unfortunate consequence of undermining the Fourth Amendment. That being the Community Caretaking Doctrine. This doctrine is a prime example of “…law from the bench..”. The Community Caretaking Doctrine was not fabricated to facilitate criminal investigations, but rather provide a privacy exception where a warrantless entry to another person’s property was necessary due to various categories of exigent circumstances. The pivotal case in the formulation of the doctrine was Cady v. Dombrowski (1973). In which, the arresting officers searched a vehicle in a drunk driving crash. To recover a service revolver. Doing so with the intentions of facilitating public safety. 

Traditionally the Community Care Taking function of the police has been separated from criminal investigations (p.263). The conflict arises when police engage in caretaking functions and come across evidence linking someone to a crime. It is applied in situations under which the Emergency and Exigent Circumstances Doctrines would not apply. The two primary functions of the Community Care Taking Doctrine can be summarized as :

“…the community caretaking doctrine as authority for warrantless home entry would apply in only two situations: (1) non-bodily harms such as nuisances; and (2) non-imminent threats of bodily harm.…” (p.10).

The “nuisance” function of the doctrine may seem frivolous, however, it is frequently invoked. The case the United States v. Rohrig (1996) embodies a classic example of “non-bodily harms such as nuisances”, a noise complaint. (p.16). Neighbors called in the early hours of the morning to report loud music being played. Officers opened the unlocked door to the defendant’s house to request he turn the music down. While locating the homeowner “… discovered wall-to-wall marijuana plants, as well as fans and running water…”. Presenting an interesting conundrum because it is debatable whether the plain view doctrine could apply. The officer did entry the property of the homeowner with his consent nor with a warrant in hand. Criminal evidence was obtained stemming from something as trivial as noise complaints. Normatively, this makes a convincing argument for weighing the severity of the circumstances justifiable under any warrantless search and entry. Regardless of the doctrine upholding its legality. Loud music is certainly a nuisance, but it is devoid of any real danger. In the absence of any statutory mandate enabling the police to enter or the defendant’s violation of local noise ordinance; the police procured evidence of a Marijuana grows operation predicated on a legal construct. One that was conceived on the lofty bench of the high court. In the absence of ample circumstantial indicators of a serious crime nor of an emergency. It is difficult for any defender of the Fourth Amendment to perceive such actions as anything but intrusive and inordinate.

Your Car is Not Your Castle- Part III: Post- Cooper

Photo by Aleksandr Neplokhov on Pexels.com



The post-Cooper case precedence removes the one core restriction established in Carroll. The elimination of the standard of a search being proximal to a traffic stop only further provides more fodder for the justification of extending warrantless searches. Making Cooper arguably a pivotal case in the advancement of the Fourth Amendment Law on vehicle searches. Consequential, throwing out this one requirement serves only to further erode our Constitutional right to privacy. Even the jurisprudence behind the plain view doctrineand probable cause is at best questionable from a normative standpoint. Upholding the limitation of onsite warrantless searches could at least be perceived as a fair compromise between civil libertarians and criminal justice conservatives.

All cases from Cooper on the standard of “appurtenance” of a search to being detained were served. Divorcing these two variables further expands the ability of code enforcement officers to commence warrantless searches of automobiles. Even after the defendant has been incarcerated. Such expansive interpretation of the doctrines involving warrantless searches of vehicles degrades the rights guarded under the Fourth Amendment. Criminating evidence discovered with a substantial probable cause at least has some grounds for permissibility. Allowing searches after detention by police bring down a treacherous slippery slope that can only be exacerbated by further judicial innovation.

Dyke V. Taylor Implement Manufacturing Company Inc (1968)

The incident serving as the basis for this case stemmed from the events that transpired on February 25, 1966. It was purported that petitioners Dyke, McKinney, and Blackwell were riding in a vehicle implicated in a shooting. The automobile drove past the home of Lloyd Duckett, a nonstriking employee of “Taylor Implement”. Duckett’s son-in-law who was standing in the front yard of the property saw the shots come from the vehicle and fired back with his pistol. Subsequently, he reported the incident to Monroe County police. Police then spotted that they presumed met Ellis’s (Duckett’s son-in-law) description and chased the car. The speeding vehicle was eventually stopped and the occupants were sent to the local jail. While the defendants sat in jail local police searched the automobile. The officers came across an air rifle underneath the front seat of the car. Even at the trial, it was noted that:

“…the case against petitioners was ‘premised entirely upon circumstantial evidence’ but that nonetheless he had ‘no trouble at all with the proof which I have heard and I have weighed it in its severest form, that the charges made must be proven beyond a reasonable doubt….”

Invariably the petitioners were found to be guilty by the court. The defendants were sentenced to ten days in jail and a fifty-dollar fine. The Tennessee State Supreme Court rejected the petitioner’s claim that the evidence against them had been seized illegally. Since the air rifle was obtained when the defendants were incarcerated. However, the court did find that the officers did not face sufficient probable cause to stop and then search the car. Because the arresting officers lacked a complete description of the offending vehicle. Citing Brinegar v. the United States the Supreme court ruled that the evidence had been obtained illegally. Forcing the court to find the evidence of the air rifle seized in the search to be inadmissible in search. It would be a mistake to even perceive this court decision as even a small victory for Fourth Amendment advocates. This court ruling reads more like a technicality than jurisprudence aiming to insulate our right to unjust searches by the long arm of the law. Any judgment against the inferences of the officers was made about the flimsy evidence justifying their intervention versus Fourth Amendment concerns.

Chambers v. Maroney, 399 U.S. 42 (1970)

The events leading to the complaints in Chambers V. Maroney transpired on May 20, 1963. 

A blue station wagon containing four occupants, one wearing a trench coat and a green sweater was stopped by police. Matching the description of two men implicated in the robbery of a Pennsylvania gas station the occupants were arrested. There was a trench coat found and the vehicle and one occupant wearing a green sweatshirt. After the car was seized, it was taken to the police station and subsequently searched by authorities. During the search, the police discovered two pistols in the glove compartment and business cards from another gas station that had been recently burglarized.

In Chambers, it was found that the warrantless search of the car obtaining the handguns and business cards was lawful. However, the search failing on the dimension of appurtenance cannot be “..justified..”. Since the search had no connection to the “.. incident to the arrest..”. The spurious nature of the legal justification was outweighed by the probable cause logically substantiating the need to search for stolen property. Due to the mobile nature of cars if there is probable cause it is imperative that the vehicle is searched (citing Carroll). Arguably the most fatal reasoning in Chambers was that location of the search was inconsequential to any Fourth Amendment concerns.

“…Given probable cause, there is no difference under the Fourth Amendment between (1) seizing and holding a car before presenting the issue of probable cause to a magistrate, and (2) carrying out an immediate warrantless search…”

Demonstrating that whatever “gains” were made in Dyke were only illusory. If there was any impact made in Dyke was ineffectual if the case even moved the needle at all. As previously noted, the court weighed scant evidence for the stop and search than any civil liberty concerns. Since Dyke lacked any true fidelity to Preston, it can be seen as inert and inconsequential in the advancement of protecting the Fourth Amendment. The lack of resistance to relinquishing the appurtenance requirement for warrantless searches makes Chambers merely a continuation of the logic held in Cooper.

Cady v. Dombrowski, 413 U.S. 433 (1973)– The Birth of the Community Care Taking Doctrine

Cady V. Dombrowski ended up being a seminal case in the evolution of the jurisprudence of Fourth Amendment law. Arising from the decision was the foundation for the legal construct of the Community Care Taking Doctrine. Over time this doctrine has become another tool in facilitating legal warrantless searches. Despite the notable observation that an individual does have a lower expectation of privacy in their car versus their house; it is reasonable to question the veracity of the care-taking functions conferred by the court to police officers. The circumstances surrounding the development of this doctrine appear to be indicative of what many jurists refer to as “..legislating from the bench..”. The advancement of expansive doctrines through case operates as an informal form of lawmaking. The court’s historical disregard for our Fourth Amendment rights on motor vehicles is disturbing. The genesis of the Community Care Taking Doctrine serves to provide another justification instead of necessary limitations.

The Cady decision was spurred by an incident that occurred just outside of a small town in Wisconsin. The defendant had crashed his rented vehicle and was determined by responding officers to be intoxicated. He was then taken to the hospital and subsequently arrested on charges of operating a motor vehicle while under the influence. The defendant’s vehicle was towed to a garage several miles away from the police station. The next day, police commence a search of the unguarded vehicle after being informed the arrested respondent was a Chicago police officer, in an attempt to recover his service revolver. The officers found substantial evidence linking the respondent to potential murder.

“…search of the car and found in the trunk several items, some bloodied, which he removed. Later, on receipt of additional information emanating from the respondent, a blood-stained body was located on the respondent’s brother’s farm in a nearby county. Thereafter, through the windows of a disabled Dodge which respondent had left on the farm before renting the Ford, an officer observed other bloodied items. Following the issuance of a search warrant, materials were taken from the Dodge, two of which (a sock and floor mat) were not listed in the return on the warrant among the items seized..” (Justia)

The defendant refuted the evidence obtained in the vehicle search during his murder trial through a habeas corpus action. The court of appeals ended up overturning the judgment of the courts. Viewing as the evidence linking the defendant to the murder as unconstitutional obtained. However, this was not even remotely a Fourth Amendment victory. The court may have perceived the evidence procured in the search as being inadmissible, but the search in itself was not outside the bounds of reasonable action. Ruling that the search of the automobile itself was imperative for securing public interest. Mainly from the standpoint of the safety of the general public.

“…The warrantless search of the Ford did not violate the Fourth Amendment as made applicable to the States by the Fourteenth. The search was not unreasonable, since the police had exercised a form of custody of the car, which constituted a hazard on the highway, and the disposition of which by the respondent was precluded by his intoxicated and later comatose condition; and the revolver search was standard police procedure to protect the public from a weapon’s possibly falling into improper hands. Preston v. the United States, 376 U. S. 364, distinguished; Harris v. the United States, 390 U. S. 234, followed. Pp. 413 U. S. 439-448…” (Justia).

Removing the disabled vehicle from the road, especially if it was blocking access to a roadway presents a conundrum. The vehicle needs to be removed due to the car obstructing traffic. Even property rights purists (even if the ethical disagree with the police moving the vehicle) can logically deduce the rationale for doing so. The question of whether the road was a public or private roadway comes into play. Splitting hairs over such minute points is outside the scope of my analysis. It can begrudgingly acquiesce that there may be grounds to justify moving the car. However, the search for the service revolver was an overreach. If our cars can be searched merely for some vague “public interest” purpose it becomes difficult to place effective limitations on these justifications. Especially when terms like “public good” or “public interest” fail any measurable metric of objectivity. Making public safety measures mirror many of the fallacies that plague welfare economics. What is advantageous to one man is detrimental to another, unless adequate compensation is provided. The ambiguity of these qualitative terms is precisely is what lends them to the reasoning for the expansion of constructs such as the Community Care Taking Doctrine.

Your Car is Not Your Castle- Part II: The Death of Carroll

Photo by Pixabay on Pexels.com

Part I

The case history of warrantless vehicle searches only expands from the 1925 Carroll decision. Over time, the conditions under which warrantless searches are permissible to have evolved. Not necessarily for the better. One of the most conspicuous safeguards built into the adjudication of Carroll over the years has been eroded in subsequent court decisions. The prevision of the search being appurtenant to a traffic stop is no longer consistent with the larger body of case law. Allowing probable cause searches to be conducted offsite and even days after the motorist has been detained by authorities. While the Carrol decision was imperfect at least set clear boundaries regarding permissibility. A principled stance that disappeared by the 1970s.

Husty V. United States, 282 U.S. 694 (1931)

Chronologically the next warrantless vehicle search case taken by the Supreme Court was Husty V. United States (1931). Much like Carroll, this case involved a motorist suspected of transporting illicit alcohol. It should be noted that both incidents transpired during the U.S. prohibition on alcoholic beverages (1920-1933). The petitioners were indicted on charges of possessing and transporting alcohol in Western Michigan. Making the actions of the petitioners’ direct violations of the Volstead Act. The arresting officers searched the vehicle without a warrant and came across “a quantity of intoxicating liquor”. Since this evidence was obtained without a warrant the petitioners motioned to prevent it from being used in court. Claiming that the grounds under which they were arrested and searched with illegal under the Fourth Amendment. This motion was denied by the lower courts. Both defendants were sentenced and incarcerated.

The Sixth Circuit Court of Appeals sustained the convictions and “granted certiorari” to have the Supreme Court review the case. The high court ruled in favor of the lower courts. Stating that probable cause is enough to condone a warrantless search of a vehicle. Mentioning that :

“….it is not necessary that the arresting officer should have had before him legal evidence of the suspected act. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched….”(Justia)

In other words, a police officer does not need to justify their reasoning for the search of an automobile. The suspicion of circumstantial evidence that may be indicative of legal activity is justification in itself. The actions of the petitioners only aided in strengthening the circumstantial case for the vehicle search. The petitioners attempted to evade police when they were “hailed” to stop. The court holding that officer suspicion of the petitioners transporting contraband was sufficient for the search. Considering the recent Carroll decision, the court’s stance was not an aberration from the trends in the jurisprudence of the era.

Scher v. United States, 305 U.S. 251 (1938)

The 1938 court decision Scher V. United States only serves to preserve the logic held in Carroll and Husty. This case also shares the commonality of the two latter cases as about the transportation and possession of illegal alcohol. Except this case involved the petitioner circumventing tax laws of alcohol. This is notable because the incident transpired after the repeal of prohibition. Scher was charged with two counts of violating section 201, Title 2, of the Liquor Taxing Act (1934).

(U. S. C., 1934 ed., title 26, sec. 1231), is amended to read as follows: “SEC. 3287. (a) Except as provided in section 602 of the Revenue Act of 1918, as amended, all distilled spirits shall be drawn from receiving cisterns into casks or packages and thereupon shall be gauged, proved, and marked by a storekeeper-gauger, and immediately removed into an Internal Revenue Bonded Warehouse. The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, is hereby empowered to prescribe all necessary regulations relating to the drawing off, gauging, and packaging of distilled spirits; the marking, branding, numbering, and stamping of such packages; and the transfer and transportation to, and the storage of such spirits in, Internal Revenue Bonded Warehouses. “(b) Upon the application of the distiller and under such regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe, distilled spirits may be drawn into wooden packages, each containing two or more metallic cans, which cans shall each have a capacity of not less than five gallons, wine measure. Such packages shall be filled and used only for exportation from the United States. And there shall be charged for each of said packages or cases for the expense of pro- viding and affixing stamps, 5 cents. “(c) The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may, by regulations, prescribe the standards of fill of casks or packages of distilled spirits at each distillery. (Liquor Taxing Act 1934).

Scher violated these conditions under the statute by possessing and transporting distilled spirits missing the required tax stamps. The petitioner was sentenced to a year and a day for his transgression. The Court of Appeals sustained the judgment. The defendant was apprehended in December 1935, after an anonymous tip came in that his car was transporting illegal whiskey. Officers pursued the vehicle from a residence in Cleveland, Ohio where the car was observed to be “heavily loaded”. One of the officers following the car hailed the petitioner for a traffic stop. The officer that commenced the traffic stop asked Scher if he had liquor in the car. The petitioner responded by stating that he had acquired some for a social function. When asked if the liquor tax had been paid on the liquor, he stated that it was Canadian Whiskey. The officer searches the car and found “..eighty-eight unstamped bottles..” of liquor. The car and containers holding distilled alcohol were subsequently seized by authorities. Scher motioned to suppress the evidence procured by the revenue agents in the traffic stop. The Supreme Court ruled that the conditions under which the criminating evidence was acquire were valid. Despite the fact the illicit liquor was seized in a stop initiated in a garage connected to a residence, it was still valid evidence in court proceedings. Differing slightly from the previous warrantless vehicle cases, but remaining within the boundaries established in Carroll.

Brinegar v. United States, 338 U.S. 160 (1949)

The defendant/ petitioner was convicted of illegally transporting alcoholic beverages across the Oklahoma state line. His actions violating Oklahoma state liquor laws, specifically the Liquor Enforcement Act of 1936. How the liquor was exported from Missouri to Oklahoma violated state law and in effect violating the 1936 statute. Federal agents seized the illegally transported alcohol at a traffic stop. The petitioner had a reputation for being in the illicit liquor business and was observed by authorities loading cases of alcoholic beverages into his vehicle. While being interrogated by the authorities initiating the stop admitted to possessing twelve cases of liquor. The petitioner motioned to “suppress” the evidence due to the search being conducted without a search warrant. Effectively claiming that this search violated the Fourth Amendment making the evidence against the defendant inadmissible in court. Based upon the case precedence dating back to the mid-1920s the petitioner was grasping at straws to avoid conviction.

The court held that the defendant made incriminating statements that established probable cause for the search of his automobile. The court also stated that the officer’s knowledge of the petitioner’s illegal activities was not purely circumstantial as he observed the defendant committing a crime. It was also ruled that utilizing the evidence in court was not improper, due to there being sufficient probable cause justifying the search. The court’s overall decision is consistent with the jurisprudence established in Carroll.

Preston v. United States, 376 U.S. 364 (1964)

Three “companions” who had been sitting in a parked car for several hours were arrested for vagrancy. Both occupants of the vehicle were searched for weapons and then taken into police custody. The vehicle the three petitioners had been loitering in was towed and subsequently searched by the authorities’ office site. The police found substantial evidence confirming that the duo was planning to “… rob a federally insured bank…”.The Court of appeals for the Sixth Circuit ruled that this search was outside the bounds of “reasonableness” and indeed violate the Fourth Amendment. Then certiorari was granted to determine if the arrest was valid considering the search by the officers was not.

The arrest of the petitioners was spurred by a telephone complaint to the Newport, Kentucky police department reporting that three men were parked in a car and “…acting suspiciously…”. Four police officers were dispatched to respond to the complaint. Upon questioning of the police, the men in the suspiciously parked car provided questionable answers. All of the men appeared to be unemployed and only possessing a meager sum of money. One of the individuals in the vehicle claimed to lawfully own the car, but could not produce a title. Police decided to arrest the occupants and then engage in searching the vehicle afterward. The officers found paraphernalia[PC1]  and other evidence linking the occupants to a scheme to rob a bank “fifty-one miles” away from Newport.

As bleak as it may seem for the petitioners, in this case, they end up capturing a big win. The Supreme Court maintaining its fidelity to Carroll end up finding the evidence seized in the search to be “inadmissible”. Since the search was “.. too remote in time and place to being treated as incidental to the arrest…”. Within the corpus of case law post-Carroll, this is the first instance of the 1925 case serving as a reasonable limitation on warrantless vehicle searches. Demonstrating that while arresting officers can conduct a warrantless search of your vehicle. That such an extraordinary privilege is not without proper limits. Making Preston a landmark case in the defense of upholding the Fourth Amendment.

Cooper v. California, 386 U.S. 58 (1967)

The true erosion of the safety net established in Carroll was eviscerated in Cooper V. California (1967). This was the case where the court rejects the condition of a search being appurtenant to a traffic stop or arrest. In the view of Fourth Amendment purists, even the conditions set by Carroll could be viewed as being perverse. At least the Carroll decision attempted to implement a safeguard against extending warrantless searches to the point of being arbitrary. The unfortunate consequence of Cooper was the elimination of the standard of the proximity of police engagement and the search of a vehicle. Serving this one thread eliminates any silver lining provided in the Carroll ruling.

The Cooper Case was a result of the petitioner being convicted on charges of violating California narcotics statutes. However, the evidence obtained against the petitioner was collected a week after his arrest. When his vehicle had already been impounded. The petitioner attempted to cite Preston as grounds for the inadmissibility of the evidence collected from his vehicle. However, the lower court swiftly rejected this claim, suggesting that “… evidentiary error harmless under the State Constitution’s harmless error provision…”. The Supreme Court held that the search did not violate the Fourth Amendment. Since the search was closely related to the arrest of the petitioner.  

Your Car is Not Your Castle- Part I

Photo by Julia Volk on Pexels.com

The Fourth Amendment of the U.S. Constitution is central to our modern conception of property rights. Outside of contract law, few areas other than our right to privacy substantially address such civil libertarian concerns. The Fourth Amendment like so many other Constitution “rights” are not absolute and are subject to various exceptions and stipulations. Much how our right to free speech has limitations, the same can be said about our right to privacy. Even instances of warrantless searches of property and persons. Conceptually a warrantless search and seizure of property are condoned under a specific legal context. Effectively divorcing case law from the normative justifications for the drafting of the Fourth Amendment. The basis for the Fourth Amendment has its origins in the philosophical precepts of English Common Law. Immortalized in the words of the English jurist Sir Edward Coke “…That the house of everyone is to him as his Castle and Fortress..” implying that the home is a man’s ultimate refuge from public life. It is where he stores his personal effects and experiences the most intimate moments of his life. Arguably making securing one’s home the focal point of the property rights protected under the Fourth Amendment.

The Fourth Amendment concisely details the intended scope of security bestowed to American citizens under its protections.

The 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. (Amendment IV, U.S. Constitution).

In a literal reading of the amendment, it is quite evident that its scope was enough for covering the property rights of citizens of the 18th century. With the advent of new technology, this list of protected areas of the property is wholly incomplete. Since the era of the founding, the various types of property ownership have greatly expanded to include automobiles, various forms of modern intellectual property rights, and even digitally stored information. This is likely why some jurists advocate for the prospect of a “..living Constitution..” that possesses the pliability to adapt to modern times. Despite the potential danger of illiberal innovations that may be utilized to invalidate crucial Constitutional rights. E.g.) An amendment that repeals the Second Amendment due to an increase in gun violence. Due to the stringent requirements to ratify such Amendments, the 4th Amendment has evolved primarily from case law. Primarily the rulings in Supreme Court cases, setting the tone for the modern interpretation of our right to privacy.

In certain contexts, our expectation of privacy varies. For instance, we do not have the same expectation of privacy walking down the street as we do in our bedroom. The verbatim text of the Fourth Amendment does explicitly guard Americans against warrantless searches of their home and person but leaves us in a murky situation when it comes to modern forms of ownership. Never mind cloud computing and other variants of modern data storage, but even automobiles are left out of the equation. This concern becomes particularly significant in the event of a traffic stop. However, factors relating to probable cause and the plain view doctrine need to be considered in justifying a warrantless search of a vehicle, there is another variable at play. Simply, we do not have the same expectation of privacy in our car that we do in our home. To many people, this may sound somewhat absurd and normatively there are some grounds for arguing against this point. However, from the stance of positive law, these assumptions hold.

The origin of the modern limits of the Fourth Amendment regarding vehicle searches dates back to Carroll V. United States (1925). In September 1921, Carroll met with an undercover agent to sell illegal whiskey. After Carroll left the location to obtain the whiskey his “potential” client had left. Then in early October Carroll’s vehicle was involved in a chase with a patrolling police car. Carroll was able to escape arrest. Then on December 15th of the same year, Carroll was pursued and stopped by police. During the traffic stop, the officers discovered 68 bottles of illicit whiskey tucked behind the upholstery of the car. The court held that the agents that apprehended Carroll had justifiable probable cause to search his vehicle. Since previous encounters with the suspect indicated a high likelihood that he owned alcoholic beverages.

It is easy to find such conclusions troubling. After all, we do own our cars. Shouldn’t searches of automobiles require a warrant barring exigent circumstances or the consent of the owner? Carroll happened to be the defining case that did indeed confirm that a man’s car is not his castle! It is easy to assume that the same rights that apply to a home could easily be extrapolated to a vehicle. Much like a home, a car can act as a vessel for holding personal effects. In some cases, for individuals that are homeless, a car is their house. Carroll singlehandedly defines the criteria under which an automobile differs from a stationary house regarding the expectation of privacy. The court ruled that the authorities having the suspicion that a car contains contraband is in itself justifiable for a warrantless search. Why? Since cars are mobile, they can easily leave the jurisdiction well before a warrant can be issued. This decision on the part of the court may seem overarching, however, it was not without limits. The court ruled that warrantless searches of parked automobiles would be considered unreasonable. That the search must be “…contemporaneous with the stop…” making it improper to move the vehicle offsite to search at the police officer’s “convenience ”. Subsequent cases even decades after the Carroll decision would further erode the notion that there is an expectation of privacy in one’s car. Noting that the very nature of a car being a conveyance strips away much of privacy privileged to our homes. Later cases even detailing that “…It travels public thoroughfares where both its occupants and its contents are in plain view…”.

The Abilene Paradox And The Collective Action Problem Are Both Cut From The Same Cloth

Photo by Christina Morillo on Pexels.com

This observation may be self-evident or even shallow, however, the Abilene Paradox is nothing more than the complete opposite of the Collective Action Problem. Both concepts demonstrate the pitfalls of the decision-making process but embody the extreme ends of the distribution. One demonstrates the follies of too much agreement in the decision-making process and the other details the difficulties of coordinating action when there are dissenting opinions and interests. These conceptions of the difficulties of managing agreement and disagreement provide us with the precepts to navigate the traps that impede effectual action.

In the Abilene Paradox, we drive towards disaster choices due to no one wanting to be the voice of dissent. The Collective Action Problem details how disagreement can paralyze us in the decision-making process which will immobilize the entire group from acting. Through understanding how to navigate these speedbumps in reaching unanimity will help us more efficiently coordinate various forms of group decision-making. Each of these concepts is applicable in a diverse number of settings ranging from the arenas of public policy, the boardroom, and even in the bedroom. I consent and or agreement is required it is imperative that everyone is on the same page. Not just merely trying to appease one another or being too bellicose and unwilling to compromise.

Why more theorists and management experts have not compared and contrasted these prevalent “agreement traps” is perplexing. However, from a superficial standpoint, one is nothing more than the inverted version of the other. The major difference between the two is most like the conditions under which both arise. These reciprocals may be linked a demonstrating the same problem, however, the defining variable that influences economic agents to either excessive amounts of agreement or following their divergent interests are likely context contingent. Contextual attributes such as incentives, personalities, external costs, penalties, cultural norms, societal affiliations, etc. can sway actors towards committing one of these fallacies over another. Neither of these challenges in the bargaining or agreement process yields optimal results, even us with either poor decision or incapacitated by inaction. Whether you are managing a nation, a company or a household all of these societal structures represent graduations in the scale of decision-making units. Making them susceptible to either over agreement or paucity of agreement, either is detrimental to all parties involved.

It is difficult to ascertain if a “golden-mean” can be found in striking the right degree of agreement. Again, what would strike the right ratio of consent-to-descent is highly contextually based. Choosing the wrong ice cream flavor does not carry the same magnitude of consequences as bombing the wrong country (hypothetically this is not an appeal for a hawkish foreign policy). The stakes are much higher in the latter example than in the first example of a decision gone wrong. A lot of this can be resolved through the constitutional basis for decision-making. In other words, what set of rules are established governing the initiation of choices. The seminal text of Public Choice Theory, The Calculus of Consent (1962) loosely defines constitutional decision-making as being any set of rules (two or more) governing the decision-making process. These rules do not need to be formally codified nor do they need to extend beyond a single person to be constitutional. Any means of quelling the concerns of group members of the fence can secure unanimity, whether it be through persuasion or compensation/ lessening of any external costs imposed on them can settle a disagreement. The role of the compensation would have to be implied in the rules guiding decision-making. Much how the articulation of opposition needs to be tolerated from group members to avoid an agreement for a course of action everyone knew would be calamitous. All because the group members want to conform to what they perceived was the desired action of the group. Anyone in leadership needs to have a tacit or formal understanding with their subordinates or constituents that constructive criticism is welcomed. If not you may be taking a long ride to Abilene!

Suicide As A Property Rights Issue- Part II

Photo by Pixabay on Pexels.com


The moral argument for a right to suicide is firmly grounded in property rights. To many readers the very notion that suicide and ownership of tangible objects are interconnected is farfetched. Upon a superficial assessment of the premise, it is easy to jump to this conclusion. Once we get to the philosophical taproot of the concept of ownership the overlap between the two concepts becomes much more apparent. Fastened to the pillar of natural rights, the right of ownership is crucial in establishing all other rights. The ability to retain, transfer, and exclude others from one’s property lays down the framework for all other negative rights we cherish. For example, if a dinner guest offends us with an off-color joke at our house, we have the right to ask them to leave. The right of excludability. If the dinner guest is aware, we are offended by specific kinds of jokes, they fully consent to the conditions of the dinner party by opting to attend. Due to this variety of informal rule creation, there is no need to implement laws prohibiting offensive speech. Individual property owners can decide what types of jokes or language will be tolerated in their household.

The basis for ownership of tangible items goes back to an even deeper principle of self-ownership. If we do not own ourselves how can we possibly possess physical property? Either in the title or tangible form. The philosopher who bridges the gap between self-ownership and ownership of objects, locations, and intellectual property is no other than the great John Locke. At the most rudimentary level, we must own ourselves before we can possess any additional property. The extent to which this self-ownership is applicable is debatable. We can legally own ourselves. We have autonomy over (in most cases) our corporeal vessel that holds our inner organs. An individual can also exert control over their mind. Where does the right of an individual to own one’s self arise from?  This merely the abstract pontification of an out-of-touch philosopher? Most who have read Locke would staunchly disagree with the prior inference. Locke developed a concise explanation linking self-ownership to an unwavering natural right.

In Locke’s Second Treatise of Government (1689) he further expounds upon the natural basis for self-ownership. Arguably laying down the nascent substrate for the ethical arguments against slavery later on in the 19th century. The right to self-ownership is the result of divine providence. In Locke’s view, God gives us life and we are born free. For those who have more of a secular view of the world, it could state we are born free by our humanity. There is no grand authority that we must oblige by involuntarily transferring self-possession to as a result of cohesion.  

“…Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his person: this nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. (p.11)..”

Locke establishes that no one person has the right to own another human being. The implications of the above quote go beyond the abstract conceptualization of self-ownership. Due to a person owning themselves they also possess the fruits of their labor. If you work and toil to harvest lobsters in the icy waters off the coast of Maine, whatever you catch is rightfully yours. Providing you are not capturing so many lobsters that you are preventing others from having a chance to obtain the seafood delicacy. Nor are you procuring so many they will go to waste (p.12-15). Through self-possession and possession of our labor and the results of our labor, the natural rights argument for property ownership is pithily conveyed.

John Locke was correct about all people being born free and having possession of overall commodities, lands, and intellectual property that they have rightfully obtained through their labor. Where he went astray was asserting that natural rights are inalienable. Regardless of whether we procure these rights from god or as a result of our personhood, you can alienate these rights. Whether or not it is ethically justifiable is completely contingent on the consent of the individual. We have a natural right to free speech for example. While at work we temporarily or indefinitely suspend (for the duration of our employment) our right to unfettered speech as a condition of employment. There is nothing illegitimate about this arrangement because it expresses a form of tacit consent.  If you truly disagreed with the rules of the company you otherwise would not accept the job offer. Agreeing to conditions of employment can operate as a form of selling our natural rights. If we truly own ourselves and possess all of the natural rights we are guaranteed in the Constitution, why couldn’t we sell the title to our rights to other people? That is effectively what we do when after signing an employment agreement. Our natural rights cannot be transferred or relinquished unless we willingly agree to conditions or arrangements that nullify these rights.

One particularly controversial example of this concept was formulated by the Austrian economist and political theorist Walter Block. Dr. Block postulates that voluntary slavery is not incompatible with individual freedom. Such a position sounds antithetical to liberty, however, understanding the context is key. There is a difference between being forced at gunpoint into slavery and choosing to be a slave. Why would anyone choose to be a slave? They or a family member may owe an astronomical amount of money to a private individual and the only means of making restitution on their debts would be a lifetime of unpaid servitude.  It highly unlikely that anyone in modern times would consent to such an arrangement. Being able to sell one’s self to another person demonstrates an unfettered view of self-ownership. The laws prohibiting voluntary slavery are essentially are equally as unjust as keeping involuntary slavery legal. We can’t say that we truly own ourselves if we cannot do as we please with our bodies. That includes opting to sell ourselves into slavery.

The question becomes how does the argument for voluntary slavery apply to suicide? Logically it is predicated on the very same principle of self-ownership. If you truly own yourself and no one else has possession of your body and mind, then you have a right to kill yourself.  As jarring as this statement maybe it is nevertheless true. If we truly possess an object or an idea we can do as we please with it. We can sell the item or bit of intellectual property, or we can dispose of it. Nothing is stopping us from purchasing the latest iPhone at full retail price and then upon receiving the device, abruptly throwing it into a trashcan. While by the assessment of convention sensibilities such an action would irrational or foolish, no one has a right to prevent this behavior from occurring. Regardless of the perception of others, the notion of ownership prevents others from intervening. Some may criticize this example because it is comparing a replaceable item with the irreplaceable essence of human life. This critique is a fair one, however, that does not make this a false analogy.  The operative condition is the concept of ownership not what the individual is choosing to dispose of.  Regardless of the origin of where we obtain our natural rights from we do own ourselves. Much like anything else we own we have a right to dispose of ourselves. This is not making a moral judgment about the act of suicide in-of -itself. Nor is this a tacit endorsement of suicide. However, legality is no measure of morality. Nor is pressure to conform to societal norms.  If we legalized heroin use and prostitution tomorrow, these activities would not necessarily be moral.  But they would be legal. While these activities may be immoral, inferring an individual’s right to poison their body or engage in infidelity is also immoral. Immoral on a grander scale. When victimless crimes have codified sanctions, they are generally backed by the threat of incarnation, fines, or state violence.  

The decision to commit suicide is a deeply personal decision that should not be felt in the hands of doctors, psychologists, and especially nor legislators.  Attempts to intervene in suicide attempts are naturally transgressive against the individual’s property rights.  If indeed, we truly possess self-ownership.

Spooner- Argument #25 Against The U.S. Post Office

Photo by Diana Akhmetianova on Pexels.com

In his seminal pamphlet, The Unconstitutionality of the Laws of Congress, prohibiting Private Mails, Lysander Spooner provides twenty-seven brief arguments countering the veracity of the government-held monopoly on mail services. More specifically arguing from the perspective of Constitutional law. Utilizing the precepts of the U.S. Constitution, Spooner derives numerous thought-provoking arguments that challenged the government prohibition on private mail carriers. One of Spooner’s more novel arguments is presented in argument # 25 (p.12) of his pamphlet.

Spooner writes:

“25. If the exclusive right of carrying letters, has been granted to Congress, then it is unconstitutional for a person even to carry a single letter for a friend. And Congress is bound to punish such an act as an offense against the constitution.”

At first glance, this argument may seem thin or even frivolous. However, the implications of this refutation are much deeper than loose extrapolation. If we were to replace “letter” with any other legal commodity, such sanctions would be absurd. For example, the United States government has the exclusive right to sell, produce, and distribute bread. Making the production, sale, or transfer of bread by any private company Constitutionally barred. Any commentator with a market-oriented position on economic would be quick to decry this as “socialism”. The government attempting to monopolize and control the market for bread. If such a notion of government control of bread production seems inordinate, couldn’t the same be said of letter carrier services? The transaction costs of private companies delivering letters domestically are low. The government’s fixation with keeping private carriers out of the market back in the 1840s was puzzling.

Spooner carries the argument to its logical conclusion by extending it to the potential of congressional restrictions on gifts.  He states that “… then it is unconstitutional for a person even to carry a single letter for a friend. And Congress is bound to punish such an act as an offense against the constitution. “Hand delivering a letter to a friend is only a step away from giving a gift to a friend. The only difference is the intent. Hand delivering a message is intended to disseminate information. Giving a tangible item to a friend with no expectation of direct reciprocity is a gift. As soon as you are trading tangible goods it becomes a form of barter. Does transporting a letter somehow become crass or require the need for state intervention upon exchanging money for this service? Even if we are paying someone to deliver a letter to someone else, this is a form of volunteer exchange. Just as much as giving someone a gift or opting to cut the middleman out and hand-deliver a letter to a friend. If I am not stealing the envelope, ink, and paper to compose a letter.  No laws are being violated while transporting the letter, there shouldn’t be an issue. If a private company (subject to taxation) wants to provide the service of transporting that same letter for a fair price, congress should not obscure this free exchange. Especially if the company is being taxed. However, the legitimacy of taxation is a whole other stand-alone argument. If an organization pays to play and the transaction costs of such a business are low. Any functional counterargument is at best flimsy.

Outside of the Constitutional concerns of congress veering into unjustly regulating trade. Something that happens frequently in modern society as the Commerce Clause has been stretched beyond its original intent. Generating several perverse interpretations of this clause.  There is a strong natural rights perspective implied in Spooner’s twenty-fifth argument. If a person composes a letter, it is their letter. As in the own the physical paper it was written on and the envelope it is sealed in. While the letter is in their possession they can do as they like with the letter. They could burn it in their fireplace. The author of the letter could elect to frame the letter. They could throw it into the recycling bin. Even better yet they could choose to give it to another person. To convey a message to the letter’s intended recipient. Instead of wasting time, energy, and resource on driving across the country to deliver the letter, they can decide to transfer this duty to a third-party. In effect, temporarily consigning possessing of the letter to the third-party carrier. In any developed market system, it would be fair to say that the consumer shouldn’t be restricted to using one carrier. By owning the letter, the consumer should not be restricted by legal barriers when choosing a vendor. It would be one thing if there was a natural monopoly (if such a thing exists) then the only other choice the customer has is to transport the letter by their efforts. When the government skews the interpretation of the Constitution to carrier barriers to entry into the market.  Spooner highlights this point in his earlier arguments.  For instance, argument #1:

“1. The Constitution of the United States (Art. 1. Sec. 8.) declares that II the Congress shall have the power to establish post-offices and post roads.” These words contain the whole grant, and therefore express the extent of the authority granted to Congress. They define the power, and the power is limited by the definition, the power of Congress, then, is simply” to establish post-offices and post roads,” of their own not to interfere with those established by others.” (p.5).

Spooner fully asserts that has written, Congress has the power to establish a postal service along with the parallel infrastructure to support mail delivery. Nothing more. The power is not extended to ensure that no other entrants pursue the same line of work. Nor does it explicitly state that congress is required to distribute sanctions for market entry. Not only does congress acting against private mail carriers inhibit natural property rights, but it is an overextension of the intended duty of creating a postal service. Meaning that any action taken against Spooner’s business The American Letter Mail Company was illegitimate.  Did nothing more than preserve the jobs of bureaucrats and place artificial barriers on the natural cadence of market processes. The antithesis of preserving our natural rights and liberties.