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COURTS AND THE CONSTITUTION - MINIMAL INTRUSION OF LIBERTY

 

By Michael LeMieux
July 29, 2011
NewsWithViews.com

In May of this year the NM Supreme Court ruled that it was okay to violate the state and federal constitutions so long as it is just a little bit and admitted that this was based upon their judgment that doing so was just minimally interfering with constitutional rights. (State V. Ketelson, 2011-NMSC)

This is exactly the kind of liberal thought process that has continued to erode the rights of American citizens across the country. Just a little nudge here, or a trim of your rights here, a bit of enlargement of government power over there and before you know it we will all be required to carry little red books and have government control our thermostats.

The facts of the case are this taken from the court file:

“{2} The record reflects the following facts found by the district judge during the suppression hearing. On the evening of November 13, 2008, Officer Shane Blevins of the Hobbs Police Department stopped a GMC Jimmy with expired temporary tags. Officer Blevins approached the driver side of the vehicle and informed the driver, Kerri Allen, of the reason for the stop. Meanwhile, Officer Miroslava Belyeu (n©e Jurado) approached the passenger side of the vehicle, where Gregory Ketelson (Defendant) was seated. Officer Belyeu saw a black nine millimeter handgun lying on the back seat floorboard. Officer Belyeu asked Defendant to step out of the vehicle, and Officer Blevins retrieved the firearm from the back seat floorboard. Neither Defendant nor Ms. Allen was in the vehicle when Officer Blevins retrieved the firearm. After Officer Blevins retrieved the firearm, Defendant signed a card consenting to the search and admitted that the firearm belonged to him.

{3} Officer Blevins requested dispatch to run a background check on Defendant. The background check revealed that Defendant had a prior felony conviction in Texas for burglary in 1999. Defendant was placed under arrest as a felon in possession of a firearm in violation of NMSA 1978, Section 30-7-16 (2001).”

I know, at first blush, a majority of people reading this will say “Okay, good catch – caught a felon with a firearm.” My contention however has absolutely nothing to do with this individual and everything to do with the decision of the court after this point.

In New Mexico, and many other states of the Union, it is perfectly legal to have a loaded firearm in a motor vehicle. In many states it is perfectly legal to have a loaded weapon on your person.

What resulted in this case goes further – we’ll get to that shortly.

Before the case went to trial the Defendant moved to have the firearm and his statement of ownership thrown out of the case as the state must have a search warrant, consent, or exigent circumstances before they can enter the car.

Now if you look at the case above they admittedly did not have a warrant, they retrieved the firearm before gaining permission, which only leaves exigent circumstances.

What is “exigent circumstances?” According to Black’s Law Dictionary it is “A situation that demands unusual or immediate action and that may allow people to circumvent usual procedures.”

Since, admittedly, both occupants were now out of the car and under the control of the police officers there was no immediate danger to the officers. Remember, at this point the officers had not ascertained whether the Defendant was a felon and where no crime had yet been committed, or known to have been committed, their actions were unconstitutional – minus that knowledge.

At this point the district court suppressed the evidence stating: ”noting that non-felons may legally carry loaded handguns in private automobiles, and thus, the State must make some showing beyond the mere presence of a firearm in the car before officers effect a warrantless ‘seizure.’”

Had the officers removed the occupants from the vehicle, ascertained their identities and status, then they would have had probable cause to affect the seizure and arrest of the suspect and have stayed within the legal boundaries.

The state then appealed the suppression to the Court of Appeals – the Court of Appeals affirmed the district court determination stating “there was no proper basis upon which to justify the warrantless seizure of the firearm.” The court held that the warrant requirement was required before an officer may seize an object in plain view from a vehicle and found no such exception applicable here. In my opinion this was the correct decision.

But, as we shall see, no amount of logic, law, or constitutional basis shall stop the New Mexico Supreme Court for expanding government power and eroding American liberty.


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The NM Supreme Court then granted certiorari not to determine rightful action in ensuring citizen’s rights were maintained but to determine a legal remedy for officers to be able to do something they have never been able to do before – remove a firearm from a vehicle (or person) without any warrant, and without any suspicion of criminal activity (the NMSC believes the mere presence of a firearm is “tantamount to establishing a presumption of exigent circumstances”)

They then rely on the Terry V. Ohio case to link officer protection by allowing an officer who “observes unusual conduct” that leads him to believe “criminal activity may be afoot” would be justified in a search of the clothing of the persons – for their safety. Then the NMSC continues down a rabbit hole of linkages with various cases, which have no bearing on the immediate case, dealing with officer protection.

The bottom line is the officer, if he sees a gun or suspects a gun and now has reason to believe the occupants are “armed and thus posed a serious and present danger to [his] safety” and can now search the persons as well as the vehicle without warrant.

They then go on to justify the intrusion into the liberties of their citizens by contrasting the “public interest” with that of the “individual’s interest in freedom.” After weighing an entire paragraph of liberal dogma the court determined that because it was only “at most a minimal interference” with the suspect’s rights – well then that’s okay.

After that conclusionary statement the NMSC relied nearly exclusively on the determination that the infringement of the people’s rights was perfectly justified and acceptable as long as it was only “a minimal intrusion.”

They finalized their oppressive thoughts by further highlighting why we have such a strong division between the police and the general public. There is a perception that sets us at odds with one another – it has become “we against them”; where at one time it was us against them – the law abiding against the criminal. Today there are the police and all the rest of the potential criminals that just have not been caught yet.

They stated: “We conclude that removing defendant’s firearm from the vehicle in order to ensure that it was beyond the reach of any of the occupants during the stop was a reasonable and minimal intrusion, which does not outweigh legitimate concerns of officer safety.”

Let’s phrase this now with an eye to what this means as new case law in NM: “We conclude that removing a citizen’s firearm from the vehicle…”

You see it is no longer about this case – it is about your rights. Now the police officer knows he is more important than even the rights of the citizens and the oath he took to uphold the Constitution. Now he can treat EVERY SINGLE PERSON he comes in contact with JUST LIKE A CRIMINAL. He can frisk you down, take your property and violate your rights all with the permission of the New Mexico Supreme Court. When the police stop your vehicle, for whatever reason, and they run the plate and find the registered owner is also a licensed gun owner – they can now enquire if you have a gun present and seize the gun regardless of you rights.

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The sad part about all this is that the NMSC would rather take more of your rights away than correct the failings of bad arrest.

Had the officer(s), upon seeing the firearm, removed the occupants from the vehicle, ascertained their status and upon finding one of them a felon, could have retrieved the firearm (because now it is evidence) and booked the suspect “by the book.”

This is not an isolated incident or isolated case but a trend that has become a destructive virus upon our society. They call it “minimal intrusion” or a nudge or a push. Small steps that make the American people think “well it’s just a small inconvenience.” Until one day we will wake up and these minimal intrusive moves will leave us with only minimal liberty. It’s time to wake up!

2011 Michael LeMieux - All Rights Reserved

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Michael LeMieux was born in Midwest City, Oklahoma in 1956 and graduated from Weber State University in Utah with a degree in Computer Science. He served in both the US Navy and US Army (Active duty and National Guard) and trained in multiple intelligence disciplines and was a qualified paratrooper. He served with the 19th Special Forces Group, while in the National Guard, as a Special Forces tactical intelligence team member. He served tours to Kuwait and Afghanistan where he received the Purple Heart for injuries received in combat.

Mr. LeMieux left military duty at the end of 2005 after being medically discharged with over 19 years of combined military experience. He currently works as an intelligence contractor to the US government.

Michael is a strict constitutionalist who believes in interpreting the constitution by the original intent of the founding fathers. His research has led him to the conclusion that the republic founded by the Constitution is no longer honored by our government. That those who rule America today are doing so with the interest of the federal government in mind and not the Citizens. Michael believes that all three branches of government have strayed far from the checks and balances built into the Constitution and they have failed the American people. A clear example is the Second Amendment, which the Supreme Court and the founders have all said was an individual right and could not be "infringed" upon, now has more than 20,000 state and federal laws regulating every aspect of the individuals right, a definite infringement. He has traveled around the world living in 14 States of the Union including Hawaii, and visited (for various lengths of time) in Spain, Afghanistan, Kuwait, Korea, Scotland, Pakistan, Mauritius, Somalia, Diego Garcia, Australia, Philippines, England, Italy, Germany, and Puerto Rico.

Michael now lives in Nebraska with his wife, two of his three children, Mother-in-Law and grandchild. His hobbies include shooting, wood-working, writing, amateur inventor and scuba diving when he can find the time.

Contact Michael through his Website: www.constitutiondenied.com


 

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But, as we shall see, no amount of logic, law, or constitutional basis shall stop the New Mexico Supreme Court for expanding government power and eroding American liberty.