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General News

General Comments June 2018

Comments that are not specific to a certain post should go here, for the month of June 2018. Contributions should relate to the cause and goals of this organization and please, keep it courteous and civil.

Join the discussion

  1. TN RC (For Mike R, AJ, et al)

    Hey Mike R, AJ, and anyone else interested in a great research paper. Check out this link:

    https://poseidon01.ssrn.com/delivery.php?ID=260116123082074085066119076125074089014010017032055005018070013097031070101009083124103017054013044015041123093075025075107088011074041011058088007119069112024073009052104022111113126030067086012082121118007096124090068068065018027005003117002125&EXT=pdf

    Yeah, it’s a long link, but will take you straight to the pdf file in your browser. Some excellent, rational information in here.

  2. David

    If the doll legislation saves one Barbie, how could you oppose it? (I believe this legislation was co-sponsored by Mattel and Hasbro and has the full support of the toy manufactuters’ association of America.)

  3. New Person

    With Snyder, it listed in-person reporting was punitive. That was recent. The SCOTUS chose not to review it, in agreement that Snyder was correct.

    Now, flashback to California.

    In 1958, Kelly v Municipal stated three things:
    1) PC 290 cannot supersede 1203.4 (expungement)
    2) Compulsory in-person police reporting was criminal or quasi-criminal in nature.
    3) Once you have earned the 1203.4, then you longer are part of the registry scheme.

    In 2003, Smith v Doe was decided by the SCOTUS. A couple of points here:
    1) The registry scheme was not punitive, but regulatory
    2) In-person reporting was not part of the registry, which would be a disability/penalty.

    In 2014, People v Hamdon denied relief of the registry using Kelly v Municipal because:
    1) PC 290.5 re-wrote the law, superseding 1203.4 (which was not discussed as debated within Kelly)
    2) Stated that the registry wasn’t punishment, citing Alva.

    In 2017, Snyder v Does was not seen by SCOTUS, answering the following:
    “Whether retroactively applying a sex-offender-registry law that classifies offenders into tiers based on crime of conviction, requires certain offenders to register for life, requires offenders to report in person periodically and within days of certain changes to registry information, and restricts offenders’ activities within school zones imposes “punishment” in violation of the ex post facto clause.”

    Because it was not seen, then SCOTUS agreed with Michigan Does. In that agreement, in-person reporting imposes “punishment”.

    Because Snyder was upheld by default via SCOTUS, in-person reporting is punishment. Snyder did use the 2003 decision as a basis that in-person reporting was not part of the registry scheme.

    Snyder now negates Hammond’s stance that in-person reporting isn’t punishment. SCOTUS was in agreement. California cannot supersede SCOTUS decision that in-person reporting is punishment, but also re-affirms that compulsory in-person reporting is criminal or quasi-criminal in nature as stated in 1958 Kelly case decision. That means 1203.4 (expungement), at least with respect to in-person reporting, means all those registrants who earned 1203.4 should no longer have to register b/c in-person reporting is punitive via SCOTUS 2017, Snyder, SCOTUS 2003 Smith v Doe, and Kelly.

    So what do you guys think?

    • AJ

      @New Person:
      Your logic, relying on Snyder’s scope, is fundamentally flawed.
      =====
      “With Snyder, it listed in-person reporting was punitive. That was recent. The SCOTUS chose not to review it, in agreement that Snyder was correct.”
      —–
      Not so fast. In-person was one of a number of elements that, when combined, created a supervision-like situation for the Does. It tipped one of the M-M factors to their side, but didn’t stand alone in making it all punitive.
      =====
      “Because it was not seen, then SCOTUS agreed with Michigan Does.”
      “Because Snyder was upheld by default via SCOTUS…”
      —–
      Absolutely incorrect. SCOTUS denying a case says nothing about the case. A denial simply means the Court didn’t see a constitutional issue needing their attention. There may be one, indeed over the years SCOTUS has at times let issues simmer across the Circuits to see how it comes out–which may be what’s going on with Snyder. Circuits can agree with it, thus solving it without SCOTUS intervetntion; or Circuits can continue to split on it, and SCOTUS will solve the split. But denying cert is equivalent to “no comment” from someone. SCOTUS gave no opinion one way or the other. Period.
      =====
      “California cannot supersede SCOTUS decision that in-person reporting is punishment”
      —–
      Again, SCOTUS made no decision, it merely let the 6th’s decision stand. As such, Snyder is only persuasive (i.e. non-binding) outside the 6th Circuit. Having been bounced off SCOTUS does give it a little bump beyond if it had just ended at the 6th, but it still is *not* nationally binding.
      =====
      Where I think you could find some traction is in citing the Solicitor General’s assessment of MI-SORA (and to some extent AWA/SORNA) in his Sndyer amicus (https://www.justice.gov/sites/default/files/briefs/2017/07/07/16-768_snyder_ac_pet.pdf). Be sure to read the few footnotes, as I recall there being some goodies in them, including case law showing why RC laws need to be taken as a whole, not as individual parts. (As the saying goes, ‘no one rain drop is responsible for the flood.” The State and courts insist on assessing raindrops and saying all is fine, ignoring the resultant flood. The USSG says you gotta look at the flood.) The USSG document argues the Snyder case nicely for RCs, IMO. I think he is also a little cagey in regards to AWA/SORNA, but that’s a fight for another day.
      =====
      Also consider Chastleton v. Sinclair (https://supreme.justia.com/cases/federal/us/264/543/case.html). The relevant and key phrases from the case are:
      *****
      Held:

      (a) A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change.

      and

      [A]a Court is not at liberty to shut its eyes to an obvious mistake when the validity of the law depends upon the truth of what is declared.
      *****
      The 9th Circuit cited this case, and used the second citation, in a case in 1985, so there’s relevant case law for you to use. (The 10th used it in 1977, FWIW.) This case law is useful to say, “look even if 80% were true in 2003–which Plaintiff does not concede–the government’s own data and facts show the facts are not such now. Or, the Court made an ‘obvious mistake’ in 2003, and this Court cannot ‘shut its eyes” to the ‘truth.'”

      • CR

        Thank you so much, AJ, for explaining in detail some of the reasons why a denial of cert, as in the case of Snyder v Does, does not constitute “agreement” with the decision by SCOTUS. I’ve said it many times too, but usually not with such good elaboration.

        The persistent misunderstanding here about what a denial of certiorari signifies needs to be corrected every time it comes up so that people don’t waste effort trying to make something out of it that can’t be relied upon.

      • New Person

        AJ,

        Thanks! The SCOTUS only agreed with Michigan and didn’t decide upon it. Thaks for helping me avoid that. But Snyder was successful, which included in-person reporting. The basis all stemmed from the 2003 Smith v Doe decision. At least I have that.

        If there’s a conflict between 2003 Smith v Doe and the Hammond case, then SCOTUS decision in 2003 still stands.

        • AJ

          @New Person:
          The SCOTUS only agreed with Michigan and didn’t decide upon it.
          —–
          No. SCOTUS gave no opinion one way or the other. They didn’t agree; they didn’t disagree. To use a baseball (or boxing) term, it was a “no decision” (https://en.wikipedia.org/wiki/No_decision).

          If it makes it easier to grasp, simply pretend Snyder was never appealed to SCOTUS. For those outside the 6th Circuit, that’s the legal effect the denial of cert had.

        • New Person

          At AJ,

          I know that Snyder only pertains to Michigan, but Snyder did utilize that the 2003 Decision did denote in-person reporting was not part of the registry decision.

          I can use the same thought that the 2003 decision did not denote in-person reporting in it’s ruling, in fact it stated because it did not include in-person reporting because that would be a disability. That was specifically stated in the opinion.

          CA’s 1203.4 states he/she is relieved of all penalities and disabilities. Then factor in that 1958 Kelly decision stated compulsory (in-person) police reporting was criminial or quasi-criminal in nature relates to a penalty/disability.

        • AJ

          @New Person:
          I know that Snyder only pertains to Michigan, but Snyder did utilize that the 2003 Decision did denote in-person reporting was not part of the registry decision.
          —–
          Snyder is binding precedent on MI, OH, TN, and KY; outside those States and the 6th Circuit, it’s what called persuasive precedent. Persuasive means other courts should take note of it, but are free to rule anywhere along the continuum of agreeing in whole to disagreeing in whole. Now, while *legally* Snyder’s trip to SCOTUS’ doorstep had no effect one way or the other, in *practice* the case gets a little nudge higher than if it had never made that trip. IOW, SCOTUS “touching it”–even without rendering any opinion or comment either way–does yield some influence beyond its legal weight.

          You should absolutely use Snyder, if for no other reason than it forces the 9th Circuit to take a stand for or against it. If they are for it, it starts the snowball running faster in our favor; if they are against it, it sets up a Circuit split that SCOTUS will one day need to decide (which could be years away, sadly). Everyone, everywhere, in every case, whether State or Federal Court, should cite Snyder. Gotta make the courts and judges take a position. Snyder, and Muniz to a lesser extent because it was a State court, is a solid foothold and wonderful blueprint for future RC cases. Now we just need Millard to fall our way at the 10th…in a year or two. 🙁

          As for in-person reporting, yes that’s a key difference between Smith and everything since. (Even AWA mandates at least annual in-person reporting.) The 6th not only said in-person is an affirmative disability, it said there appeared to be no value or need for it. That is a key point to hit upon. Not only does it burden you, but the State has no valid reason to do it even if it didn’t.

  4. David

    Wow! Is this modern insanity or what??? A Pennsylvania man is sentenced to 25-50 years for kissing a 13 year old boy. https://www.publicopiniononline.com/story/news/crime/2018/06/14/mechanicsburg-man-sentenced-franklin-county-sex-assault-boy/702445002/

    Scroll down the webpage/story to another highlighted article about a DUI driver getting 4-8 years for killing someone.

    https://www.publicopiniononline.com/story/news/crime/2018/06/01/fannett-township-man-serve-4-8-years-dui-death-kim-burdge/663764002/

    25-54 years for kissing vs. 4-8 years for killing! That’s insane!!

    • R M

      Richard Vaughn didn’t “just” kiss the boy. “He was convicted in February of corruption of minors, unlawful contact with a minor, indecent assault of a person less than 16 years old, and attempted indecent assault of a person under 16.”

      He also had a previous sex crime, “In 1999, Vaughn was charged in Franklin County with several counts of incest, sexual assault, and one count of aggravated indecent assault, according to online court documents. He pleaded no contest to two counts of incest in September 2000 and spent at least 10 months in state prison. He was also required to register as a sex offender under Megan’s Law.”

      While I agree 25-50 years is excessive in his case, I also believe 4-8 years in the other case is too little.

      • David

        @ RM: Are you aware of how prosecutors pile on charges in hopes of scaring defendents into plea bargains? That’s what all those endless charges appear to be.

        • R M

          Yes, I am aware of that. Never the less, he was convicted of all those charges.

        • Joe

          @RM – “According to court documents, Vaughn started wrestling the boy, then kissed him and tried to grope him.”

          Perhaps then the problem is that kissing and trying to grope a teenager and making an inappropriate comment is “corruption of minors, unlawful contact with a minor, indecent assault of a person less than 16 years old, and attempted indecent assault of a person under 16”.

          But the SS Insanity sailed quite a while ago. Here is a woman getting LIFE for having a 13 year old touch her over her sweater.

          http://www.coyote-tv.com/2013/02/01/life-sentence-for-molester-was-cruel-and-unusual/

          The sentencing hearing can be found on YouTube. The defending attorney pointed out that she would have gotten less had she murdered the same kid. If that does not shock the conscience I do not know what will.

          This society has lost all sense of measure.

  5. E

    I greatly fear that airlines will become the next airBnB or Comfort Inn, disallowing people on the registry. Is there a way to be proactive on this? FBI having a big hoopla at an airport due to 68 assaults. Divide that into the number of people who flew the same year and I bet the rate is AS LOW as assaults are on the ground.

    http://www.baltimoresun.com/news/maryland/crime/bs-md-in-flight-sexual-assaults-20180618-story.html

    • R M

      I interesting… that link goes to a Baltimore Sun article date June 18, 2018, with a link supposedly validate that “The number of reported sexual assaults aboard airplanes has grown by nearly two-thirds in recent years, according to the FBI.” That link is another Baltimore Sun article with no date references that the FBI said it. The “show more” link on the second article goes back to the first article.

      Is this paper desperate for clicks?

      • E

        Didn’t notice that yesterday, but I did look up how many passengers fly in the US. According to the FAA, it’s 2.5 MILLION PER DAY. Link below. That’s 912 million people per year on flights. 68 sexual assaults, a “two thirds increase” in sexual assaults reported by the FBI.

        Excuse me: 68 assaults in a year in which 912 million people were flown?? How is this even remotely a problem?

        BTW, many passengers would be repeat passengers, of course, but that shouldn’t matter in this tally. The 68 would be divided into the total possible victims, so someone flying 20 times would be 20 of those numbers. I think that makes sense but I didn’t do too well in my stats class.

        https://www.faa.gov/air_traffic/by_the_numbers/

  6. TS

    We’ve discussed this topic before here and it has tones of relevance to registration when you read what Gorsuch says in it. This will be a big outcome IMO.

    Supreme Court Will Decide If Civil Forfeiture Is Unconstitutional, Violates The Eighth Amendment

    https://www.forbes.com/sites/nicksibilla/2018/06/19/supreme-court-will-decide-if-civil-forfeiture-is-unconstitutional-violates-the-eighth-amendment/

    • David

      “If the severity of the consequences counts when deciding the standard of review,” he (Chief Justice Gorsuch) wrote, “shouldn’t we also take account of the fact that today’s civil laws regularly impose penalties far more severe than those found in many criminal statutes?”
      And not only are “punitive civil sanctions…rapidly expanding,” they are “sometimes more severely punitive than the parallel criminal sanctions for the same conduct.”
      I applaud you, Chief Justice Gorsuch. You certainly argue some excellent points, sir! Now, how about we start applying those same thoughts to problems such as the unconstitutional retroactive application of SORNA laws?

      • Lake County

        I’ve been impressed with Gorsuch since his nomination hearings. Most everything I’ve seen him say or written has made me optimistic that he will be our best bet. This may be one nomination that Trump got right. Fortunately he doesn’t have to worry about loosing his job if he rules in our favor.

  7. mike r

    I finally got an answer back from that other civil rights org. I am so tired of hearing the same old crap I sent them the following in response to the following. I will not be so rude as to eliminate any possibility of help but I am also not being so frigging nice about it anymore.

    Joe Martyak
    Jun 18 at 6:52 PM

    Dear Michael,
    Thank you for contacting us. Our amicus brief for the case Gundy v. United States focuses on process issues that we believe violate the separation of powers among the legislative, judicial, and executive branches of government. We are not involved in the particular merits of the Sex Offender Registration and Notification Act (SORNA), nor with the merits of individual cases related thereto.

    While we fully appreciate the seriousness of your situation and the ramifications of each case, we are not in the position of providing legal counsel for other cases involving SORNA.

    We hope you are able to obtain appropriate counsel to assist you.

    Sincerely,
    Joe Martyak
    Director of Communications
    New Civil Liberties Alliance

    Sent them the following:

    Same old story. I guess we have no civil rights organizations left in this country when it comes to ex-sex-offenders. Well, hopefully for the sake of our country I, a Pro Se litigant, will have to prevail. Thanks anyways.
    Michael.

  8. TS

    In other news, USA pulls out of UN human rights council.

    Really?

    Can’t take care of their own to begin with…

  9. Double A

    I’m a registrant, but I’m not on the website. I was wondering if any registrant similar to me has recently applied for a job at a big box store like Target or Home Depot and been hired for employment?

    • David

      Here’s my employment tip for you, Double A: if, while job hunting, you have an application that requests information about felony convictions, use your case number and penal statute numbers. If at all possible, avoid using any words in connection with your conviction(s) – especially words such as “lewd”, “sexual”, “statutory”, etc. The HR department might just ignore the conviction or breeze over it, rather than look up what the statute numbers actually mean.
      Best of luck!

  10. E

    Might be time to get worried. A passport identifier is irrelevant if airlines won’t let you fly their planes for domestic or international flights.

    https://www.wsj.com/articles/what-the-airline-knows-about-the-guy-in-seat-14c-1529499085

    This is following up on the recent post about sexual assaults “increasing” on US flights: “ In 2014, 38 cases of in-flight sexual assault were reported to the FBI. Last year, that number increased to 63 reported cases, but officials believe the crimes are significantly under-reported.“ (Don’t you love the “underreported” phrase). https://wtop.com/travel/2018/06/fbi-warns-about-sexual-assaults-on-airline-flights/slide/1/

    That’s out of 2.5 Million passengers PER DAY. 63 ANNUAL assaults. The sky is falling.

  11. David Kennerly, The Government-Driven Life

    This is just how bad “sex offender” civil commitment is in the U.S.

    “Sex Crimes and Criminal Justice. Formerly incarcerated sex offenders say civil commitment programs deny proper rehabilitation.”

    • David Kennerly, The Government-Driven Life

      It would have helped had I included the link address: https://washingtonspectator.org/koeppel-sex-crimes-and-criminal-justice/

      • R M

        Thanks David. That is a very informative article. I have no experience with civil commitment but I was evaluated at Avenel prior to my sentencing; it was a grueling and agonizing ordeal. As I remember, it was about 5 to 6 hours of testing/questioning and then the psychiatrist only pointed out like 2 negatives out of 5 to 6 hundred. Of course those 2 negatives negated all the rest and were the only ones mentioned during my case.

  12. AJ

    Update on the Millard appeal at the 10th: The Millard legal team has been granted a third, and seemingly final (“The court will not grant additional extensions absent extraordinary circumstances.”), extension. Briefs are now due by 7/16/2018. Hopefully they are whipping up a zinger of a document!

    • CR

      I wonder how long it takes the 10th circuit to schedule oral arguments after briefings are complete? I know that the median time from filing of an appeal to final disposition in the 10th circuit is 8.2 months, per the March 2018 US Courts of Appeals statistics published on the uscourts.gov site (link below). But that includes summary orders and cases disposed of by published opinion. I couldn’t find any time statistics limited to argued cases.

      http://www.uscourts.gov/statistics/table/na/federal-court-management-statistics/2018/03/31

      I’m sure we’re looking at many more months before final disposition.

  13. TS

    In Major Privacy Win, Supreme Court Rules Police Need Warrant To Track Your Cellphone

    https://www.npr.org/2018/06/22/605007387/supreme-court-rules-police-need-warrant-to-get-location-information-from-cell-to

    • AJ

      In Major Privacy Win, Supreme Court Rules Police Need Warrant To Track Your Cellphone
      —–
      It’s not as broad of a win as one would have hoped, since it left Smith and Miller intact, but I’ll take it!
      Based on oral arguments, I was expecting a more lopsided vote and win for privacy (and Carpenter). I was rather surprised how the votes tallied, particularly with Gorsuch in dissent (Kennedy, Thomas and Alito also dissented). However, after reading his Dissent, I think he probably would have concurred if needed to do so to get the outcome. His Dissent is not so much against the decision as it is his blasting of SCOTUS itself. He lands some serious, hard blows against SCOTUS for completely f’ing up the 4th Amendment. If this is the type of jurist he is, we need more like him!

      I think I’ll save myself the time of reading @sshole Alito’s words. I’d be surprised if it veers off his “hang ’em high, the State is always right” philosophy. Thomas’ Dissent is probably worth a read, since he seems increasingly wary of Government power and intrusion. Heck, he’s even on record that Calder v. Bull needs another look (“Since Calder v. Bull. . .this Court has considered the Ex Post Facto Clause to apply only in the criminal context. I have never been convinced of the soundness of this limitation[.]”, https://supreme.justia.com/cases/federal/us/524/498/case.html).

      Maybe one day SCOTUS will do as the Dissents touch on and actually explain in some–ANY–manner just what “arbitrary power” and “permeating police surveillance” mean. I’m guessing every RC can describe and define it quite well!

      Here’s the PDF of this Opinion: https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf

    • TS

      Thanks @AJ for the breakdown. Much appreciated!

      Here’s a NYT article on the decision that’s a bit more in-depth than the NPR blurb I provided earlier. Good read.

      I will say, the justices need to take a technology lesson on GPS and cell tower signals. They both are good within reason of their respective accuracy tolerances. It depends on where you are, such as the country or urban areas where mini towers on bldgs, poles, etc are growing. You can get close, but don’t think down to zero ft with interference. You can get down to zero feet off on GPS but you have to be in line of sight of many satellites and have the right equipment. I can on my handheld but only in the right conditions. Even mil spec doesn’t quite always get there and the regular citizen can’t get that, legally (unless you are lucky by accident). I digress.

      Last thing, serial, serial, serial… The one justice makes it seem they are everywhere! Ugh.

      Defending Privacy, Supreme Court Says Warrants Are Generally Needed to Collect Cellphone Location Data

      https://www.nytimes.com/2018/06/22/us/politics/supreme-court-warrants-cell-phone-privacy.html

    • TS

      Follow up thoughts-

      Roberts said no one foresaw an era where the phone goes everywhere. Motorola did. Technology was there. Tesla did. Hedy Lemarr did. You can see with old phones using the technology in cars. Was only a matter of time.

      This ruling makes me wonder about cellphones on wifi in your home and tracking. Is that a home search then? You get the point.

    • TS

      Last article on this topic. Good one from Reason.com here. It’s noted the court reversed itself in a sense which given the topic is good for parity. While it is a 5-4 split, it sounds like 6-3 in spirit.

      Huge Win for Everyone With a Cellphone (and for the Fourth Amendment) at the Supreme Court

      https://reason.com/blog/2018/06/22/scotus-rejects-warrantless-tracking-of-c

  14. AJ

    I’ve been doing some brainstorming over “compliance checks” and would like some group thoughts and feedback. Specifically, I’m trying to see if there’s a way to equate these checks with police roadblocks. With roadblocks, LE must have “special needs, beyond the normal need for law enforcement” (https://caselaw.findlaw.com/us-supreme-court/531/32.html). A helpful article addressing this can be found here: https://traffic.findlaw.com/traffic-stops/can-the-police-set-up-roadblocks-for-any-reason-.html. From that URL, “[u]sing checkpoints and roadblocks to help combat crime generally runs afoul of the Fourth Amendment[.]” Okay, so if that’s the case when one is out and about on public roads, the same–or higher–standard certainly applies within one’s curtilage and at one’s door. What’s worse is that LEOs are not “stopping” all citizens, nor all criminals, nor all felons. They are “stopping” RCs…with what reasonable suspicion? Presence on a state-mandated list? What basis is there to doubt the RC completely and correctly completed whatever registration paperwork? I get that LEOs have equal license to knock on my door as do the Girl Scouts, but that’s not my issue. My issue is the rationale and process used that lands them only at the doors of RCs. (I wonder if it may be helpful to FOIA some LEAs to see what system they use to create the list of RCs they visit.)

    Also, at what point does “a too permeating police surveillance” kick in? (https://supreme.justia.com/cases/federal/us/332/581/case.html) Is it when they visit over and over? When they, as I believe Lake County has detailed, find you into town and block your vehicle from movement? (Which would seem to be a detainment without probable cause.) Is it requiring one to give Internet IDs and the like?

    Please feel free to chime in with thoughts, or even questions. There’s gotta be a way to stymie this BS tactic which is nothing more than a “we’re watching you” threat. (Even the USDOJ guidelines say this is a reason to do them, IIRC.)

    • CR

      That’s an interesting question, AJ.

      Would the putative designation of sex offender registration laws as civil regulatory in nature make a difference?

      A health inspector may call upon a restaurant unannounced to check compliance with health laws. A building inspector may do the same at a construction site to look for code violations. These don’t seem to implicate 4th amendment rights.

      Cops set up road blocks to check for drunk drivers, but drunk driving is a criminal offense. This does implicate 4th amendment rights, so these checks have to be set up in such a way that they cause only minimal detention, and the cops can’t search a car without permission or reasonable suspicion, or arrest someone without probable cause.

      Compliance checks may be done by cops, but they may be done by other state-designated persons who are not necessarily “law enforcement”. Does it matter who does the check?

      I’m just trying to get my thoughts together at this point.

      • AJ

        @CR:
        Thanks for the feedback. A couple counterpoints to ponder from a helpful URL: https://law.justia.com/constitution/us/amendment-04/05-searches-and-inspections-in-noncriminal-cases.html
        1) Inspections. SCOTUS has twice ruled that administrative inspections require a search warrant if the owner objects to the search. (Camara v. Municipal Court; See v. City of Seattle). Of course with compliance checks, the LEOs aren’t entering the building, they’re “only” knocking on the door, as FL v. Jardines allows them (or anyone) to do. At any rate, yes, administrative inspections do so implicate the 4th Amdt.
        2) Roadblocks. Yes, they can be done, but as you say, the LEA must have very specific criteria established, and the delay must be minimal. In upholding DUI checkpoints, SCOTUS pointed out that the average delay to a driver was inconsequential, at around 25 seconds. Given the vast safety problem of drunken driving, it was upheld as a *reasonable* search and seizure. So it was still a 4th Amdt. issue….but a valid one.

        My thoughts are that with DUI roadblocks, LE can demonstrate a known, statistical public safety risk and costs (property damage, etc.) based on affirmative activity (driving) of the citizenry. As such, they are seeking and removing those safety risks. (I almost said preventing, but I doubt DUI checkpoints prevent much; they just catch.) However, with compliance checks, LE would seem to be hard-pressed to establish my passive activity (living at home) as a public safety risk. Indeed, the whole process itself is to ensure that a RC, who has shown compliance and accordance with the laws by registering, did indeed comply and accord with the laws. So unlike DUI checkpoints where a citizen is doing something wrong and is caught, compliance checks involve no indication of a citizen doing anything wrong.

        I guess that brings me more around to equating compliance checks not with DUI checkpoints, but the “safety checkpoints” used during holiday weekends and the like. There, LEOs check for proper vehicle equipment, valid licensing, etc., which I agree is wholly within the States’ powers. But even there and then, they cannot just do it randomly (DE v. Prouse). I’m going to have to dig deeper into non-DUI checkpoint case law.

        There’s also the point (previously discussed on this board) of what exactly is the visit. Is it based on reasonable suspicion, i.e. a Terry stop? Is it purely administrative? These questions, of course, can only be answered by the State, which is reluctant to say. However I would say if it’s administrative, there are any number of State officials–beyond armed, sworn LEOs–who could accomplish the task. Also, the task could be accomplished by one or two officials, LEO or otherwise, and not require 3 or 4 officials, let alone tactical gear, flashing lights, etc. (as some have endured). In short, I feel the bigger production the State makes of it, the less they can claim it’s administrative. And if it’s not administrative, it sure points towards investigatory, which points to reasonable suspicion.

        Arguing against all this is NY v. Burger (addressed in the URL above), where SCOTUS ruled penal objectives accomplished during administrative searches was okay. But then again, LA v. Patel (same URL) could tip it back our way.

        Be sure to read footnotes 99 and 102, as they describe some facts that align with what RCs suffer with compliance checks.

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ACSOL, including but not limited to its board members and agents, does not provide legal advice on this website.  In addition, ACSOL warns that those who provide comments on this website may or may not be legal professionals on whose advice one can reasonably rely.  
 

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