With a ruling as momentous as we’ve seen in the recent Dobbs decision, one episode is just not enough to cover the extent of its significance. On our last episode with Cary Franklin, we discussed the ramifications of Dobbs in the context of abortion.
On this episode, host Craig Williams joins guest, criminal defense attorney Jon May, to discuss his recent article, Justice Alito’s Opinion on Abortion: Not Just the End of Reproductive Rights, But the Downfall of Fundamental Civil Liberties Guaranteed by the Fourth Amendment to All Americans. Jon and Craig look beyond the matter of abortion, and explore the possible wider impacts of Dobbs, specifically as to the civil liberties guaranteed by the Fourth Amendment.
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Jon May: We live in a society that is fundamentally law abiding because of expectations and the acceptance of certain social norms, and without the exclusionary rule, the Fourth Amendment would become meaningless and people, police and federal agents will, I believe, no longer respect the Fourth Amendment as part of our nation’s protection of civil liberties.
Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I wrote a legal blog named May It Please the Court and have two books out titled How to Get Sued and The Sled. Well, with the ruling as momentous as we’ve seen in the recent Dobbs decision, one episode isn’t enough to cover the extent of its significance. On our last episode with UCLA constitutional law professor, Cary Franklin, we discussed the ramification of Dobbs in the context of abortion and privacy rights.
But today we’re going to look beyond the loss of those rights and explore the possible wider impacts of Dobbs, specifically the civil liberties guaranteed by the Bill of Rights and somewhere around five amendments regarding privacy rights so, to help us better understand this issue, we’re joined by attorney Jon May, author of the recent article entitled, “Justice Alito’s Opinion on Abortion: Not Just the End of Reproductive Rights, But the Downfall of Fundamental Civil Liberties Guaranteed by the Fourth Amendment to All Americans.”
Jon is a criminal defense attorney who has handled some of the most important criminal cases of the last three decades including the defense of General Manuel Antonio Noriega at trial on appeal, at his successful resentencing, and in some habeas proceedings to stop General Noriega’s extradition to France; a challenge to Florida’s election law during the contested election of George W. Bush in 2000, and his representation of the ACLU in the battle over Rush Limbaugh’s medical records. Welcome to the show, Jon.
Jon May: Thank you very much. It’s a real pleasure to be here.
J. Craig Williams: Well, this whole thing started with an email from you after one of our shows where you pointed out something that no one has really discussed so far, and what’s that?
Jon May: Well, Dobbs has a broader application. Dobbs being the case by the Supreme Court that essentially upheld the right of the states to regulate abortions. No one has really dealt with how Justice Alito’s analysis on Dobbs could be applied to other fundamental rights outside of rights, such as same sex marriage or contraception. It’s my view that Dobbs represents a serious challenge to rights, such as rights under the First Amendment. What I did address specifically is the application to the Fourth Amendment and the exclusionary rule.
In a previous article, I addressed rights under the First Amendment, the Fifth Amendment, the Sixth Amendment and even the Eight Amendment, as well as substantive due process. But for purposes of this article, I wanted to demonstrate just how Dobbs could apply to particular rights under the Fourth Amendment that protect fundamental civil liberties and the right not to have your home invaded without a warrant or your cellphone examined without a warrant or the entry and search of your car and personal possessions without probable cause that otherwise would be subject to exclusion under the Fourth Amendment.
J. Craig Williams: The fruit of the poisonous tree.
Jon May: Right, exactly. A violation of the Fourth Amendment leading to the discovery of evidence of criminal conduct, which the application of the exclusionary rule is supposed to deter, but more significantly, all of the searches and seizures by police or federal agents that never even go into court. The vast majority of unlawful government intrusions that the exclusionary rule is intended to deter.
J. Craig Williams: So, what happens? What is the hinge that translates from Dobbs that essentially change the regulation of abortion to criminal side? How do you get — is it the loss of privacy that we’re talking about?
Jon May: The significance of Dobbs to Fourth Amendment jurisprudence, is that Dobbs — Justice Alito’s opinion in Dobbs emphasized the originalist and interpretation of the constitution that says we are only concerned with remedies that were recognized by the Founding Fathers at the time that the constitution was drafted long held understandings of the law that go back to the Magna Carta as well as those rights necessary to guarantee ordered liberty in our society. The problem is that when the constitution was drafted and the Bill of Rights was added to the constitution, there was no police force so to the extent that judges today on the Supreme Court want us to look back to the remedies that were available to citizens back in the 1780s, that kind of analysis is flawed just because one would not expect the drafters of the constitution. We would be concerned about deterring police misconduct or unconstitutional searches and seizures when there was not a police force at that time and there was no concern about what was necessary to maintain ordered liberty in the society when searches and seizures were comparatively rare as compared to what happens today.
J. Craig Williams: Essentially, you’re saying that we’re going to go back to just about the only protection that existed at the time, which is not to have soldiers quartered in your homes.
Jon May: Well, yes. And also, to the extent that the Supreme Court has articulated that people should employ other remedies such as civil lawsuits to try to deter misconduct. That also is part of a flawed analysis because the Supreme Court has chipped away the rights to sue federal and state officers for violation of Fourth Amendment such that there virtually isn’t any civil remedy other than in the most extreme cases where let’s say, the police have gone into the wrong house looking for a fleeing suspect and innocent people are killed in the course of defending their homes from people they suspected were criminals themselves. Other than in those extreme circumstances, people just have no remedy for a violation of their Fourth Amendment rights in the civil arena.
J. Craig Williams: And really, is there any remedy left under the Fourth Amendment for as much as that’s been chipped away?
Jon May: Well, again, the remedy that currently exists it’s not a remedy. The deterrence that currently exists for a Fourth Amendment conduct, the violations. The only thing left is really the exclusionary rule, and that is only a deterrence. There literally is no remedy today for all of the innocent people who find themselves victims of misconduct or unlawful searches and seizures by the police.
J. Craig Williams: Yeah, let’s talk about the exclusionary rule a little bit. There are even exceptions to it now that pretty much gutted, at least from my perspective. You have the good faith exception, the independent source exception, the inevitable discovery exception, and attenuation. In your practice, do you find that it’s hard to win a Fourth Amendment motion?
Jon May: Oh, it’s very difficult, and it’s rare for a Court to suppress evidence because of those various exceptions to the exclusionary rule but the exclusionary rule still functions to deter police officers and federal agents from violating the law because there is a common understanding of what is expected of the police in our society, and so long as we believe that evidence unlawfully obtained by the police is required and flows from the Fourth Amendment, it’s a societal norm that is respected.
Generally speaking, people don’t go out and commit crimes, and that’s not because they are deterred by the likelihood of becoming arrested and convicted, because by and large, only a small percentage of criminal activity is ever caught. We live in a society that is fundamentally law abiding because of expectations and the acceptance of certain social norms, and without the exclusionary rule, the Fourth Amendment would become meaningless in people, police and federal agents will, I believe, no longer respect the Fourth Amendment as part of our nation’s protection of civil liberties.
J. Craig Williams: Well, John, at this time we are going to take a quick break to hear a word from our sponsors. We’ll be right back.
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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m joined by criminal defense attorney Jon May. We’ve been talking about the exclusionary rule as it relates to the Fourth Amendment and the consequences of the Dobbs decision in changing the law regarding abortion and how it may affect criminal law.
Jon, one of the things that you mentioned early on in our conversation is that it may have an effect on the First Amendment, some of the religion aspects, the right of assembly and the right to free speech. How Dobbs going to affect the first Amendment?
Jon May: Traditionally, the First Amendment has prohibited the United States and the various States from establishing a national religion. It’s also prohibited the support of religious beliefs and activities of citizens. Now, that is a literal interpretation of the First Amendment, but nothing in the terms of the First Amendment, in the language of the First Amendment prohibits prayer in school, for instance. And to the extent that the Supreme Court has held that children should be protected from having pressure put on them to exercise religious or to be engaged in religious activities in schools, that is not something that has anything to do with ordered liberty, nor is it something that was recognized at the time when the constitution was enacted. But that is a fundamental principle that has been recognized in the last 70 years, and Justice Alito’s analysis threatens that. Forcing a child to say the Pledge of Allegiance, which you can’t do under the later interpretations by the Supreme Court. Burning a flag, which was only recognized as the First Amendment protection in the last — I don’t know, 25.
J. Craig Williams: In the 60s – again, it came about in the 60s as a result of the protests.
Jon May: Exactly. Freedom of association. Just consider something that I think is very significant. The Supreme Court has held that you can’t force an organization like the NAACP or the Heritage Foundation on the other side of the spectrum to release a name, the names of its members or its donors, under the First Amendment. But there was no such protection when the founding fathers drafted the constitution. There was no such protection in the first 150 years of our nation’s existence. It has nothing to do with ordered liberty and yet, under Justice Alito’s decision, it could very well be possible for some government entity in the future, state or federal, some administration that does not like an organization on the left —
Or an organization on the right activities in the public to force them to identify who their members are or who made donations to the organization so, these are additional rights, civil liberties that are threatened by Justice Alito’s analysis. You have rights under — let’s say, the Sixth Amendment to effective assistance of counsel. You had no such right to effective assistance of counsel at the time when the constitution was drafted or in the Bill of Rights. Just says you got a right to counsel.
Now, at one time prior to Gideon, you had the right to counsel if you could afford one, but you didn’t have the right to have an attorney appointed to represent you and even when you had a right to appointed counsel after Gideon, you didn’t have a right to an effective one. The Fifth Amendment doesn’t say anything about what evidence can be subpoenaed by a grand jury. Just such you can’t be a witness against yourself.
Well, there is a whole body of case law having to do with subpoenas to individuals and to corporate entities, for instance, that governs those circumstances where evidence or information can be obtained from a person that may incriminate themselves or may in a sense, in the case of companies or corporations be so burdensome that they can literally shut down the company. Those are Sixth Amendment interests that could very well change radically under Justice Alito’s opinion.
There is a lot of constitutional rights, civil liberties that have been recognized over the last seven years that are now in play as a result of the appointment of justices who were trained essentially by the Federalist Society when they were groomed and educated in law school and who’ve later become justices of the Supreme Court that very much threaten democratic institutions as a result of how Justice Alito has analyzed Dobbs and his influence on other members of the Court.
J. Craig Williams: We’re going to take another quick break to hear a word from our sponsors. Will be right back.
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J. Craig Williams: Welcome back to Lawyer 2 Lawyer. I’m back with well-known criminal attorney, Jon May. We began a discussion that is really — I think one of the most interesting discussions is an outflow of Dobbs and the federalism versus States’ rights under the theories that we’ve been talking about. I think everybody recognizes we’re going back in time to the 1700 in terms of what the Supreme Court thinks the laws should be. And Jon, it prompts me to ask the question, Thomas Jefferson and James Madison wrote the Kentucky and Virginia Resolutions that provided that classic statement in support of States’ rights and said state legislatures can declare federal laws unconstitutional. Are we going back that far?
Jon May: Well, it’s really hard to say how far we are going. Certainly, in map the Ohio, the Supreme Court through the incorporation principle held that the Fourth Amendment applies to the States.
So, I don’t know if the States can now declare the Fourth Amendment non-applicable to them. I haven’t thought that through. But I think what’s more likely or more concern to me is what the Supreme Court itself is going to now say about the Fourth Amendment in the exclusionary rule. Certainly, there is an opportunity for States and this has happened before to interpret their own constitutional protections and their own version of the Fourth Amendment to grant greater rights to their own citizens. And it may well be that what’s going to happen is that we’re going to have a state-by-state war over civil rights and personal liberties the same as we’re likely to have on the issue of abortion as a result of the Dobbs opinion.
J. Craig Williams: Certainly, in here for some change and we’ve looked at also, we talked about Justice Alito’s theories but how about his theory of Stare decisis? We’ve seen the Supreme Court readily overrule prior decisions and we’ve started to see the circuits doing the same thing, disregarding precedent. What do you see as an outflow from that?
Jon May: Well, it’s interesting to compare Justice Alito’s analysis of Stare decisis to Justice Rehnquist’s view of it in the case where the Supreme Court found that a statute which I can’t remember the statute that Congress enacted a few years after Miranda that basically would have overturned Miranda was invalid, and in part, it was invalid because Justice Rehnquist held that the exclusionary rule in the Fifth Amendment was a constitutional rule and because as a result of Stare decisis, Miranda had become ubiquitous within our society. I mean, you can’t see an episode of Law & Order or LA Law without hearing Miranda warnings given. But Justice Alito and basically, few Stare decisis is something that can be ignored anytime that the Court finds that the case or principle was wrongly decided so it makes Stare decisis really an illusion because virtually anytime the Supreme Court decides something, if it believes that a rule is announcing is better than an old rule. Then Stare decisis simply gets thrown out the window.
J. Craig Williams: This is concerning from the standpoint of that whole federalism versus States’ rights that were fought over in the Constitutional Convention and the Bill of Rights having been added as a compromise to ensure that States’ rights were affected and the people’s rights were protected as part of the constitution. Are we looking at watching the Bill of Rights just disappear amendment by amendment?
Jon May: I hope not. I mean, certainly nothing like that has happened yet. As to rights such as rights under the First Amendment or the Fifth or Sixth or Eight Amendments. Certainly, the Supreme Court under Roberts has increasingly narrowed the application of the exclusionary rule. I’m sort of on a campaign now to try to alert people to how Justice Alito’s decision could threaten other rights. But I’m hoping that the other conservatives on the Court will take a more enlightened view and certainly to the extent that people in the country expect that the other conservatives will not apply this analysis in other circumstances, it won’t be. All you have to do is go back to the 1930s after Roosevelt’s failed attempt to pack the Court, and you can see that the Supreme Court can be moved as a result of public opinion and so I am hoping that what I’m warning of doesn’t come to pass.
J. Craig Williams: It seems like if the slippery slope starts with eliminating the rights of privacy that Clarence Thomas announced in the Dobbs opinion despite his own marriage, it seems like those rights are under attack as well. Well, Jon, we’ve just about reached the end of our program. It’s time to wrap up and get your final thoughts, as well as your contact information. Please wrap up.
Jon May: I am concerned about maintaining the kinds of protections that prevent our country from becoming a police state. Last year, it became known that for approximately ten years, the Federal Bureau of Investigation was conducting illegal surveillance of millions phone calls having to do with thousands of individuals. This was all done in violation of the Patriot Act, which was supposed to have protections against such conduct. We don’t want that kind of activity to become the norm among police officers, and the only way of preventing it is to educate and continue to educate the police about the requirements of the Fourth Amendment and have the public demand and expect that their civil liberties are going to be upheld. Unfortunately, Courts have not been vigilant in upholding civil rights in the area of the Fourth Amendment.
Unfortunately, because they’re concerned about letting the constable be punished despite the criminal activity of individuals and the blowback from the public that would result from that. But even maintaining the expectation that the police will act lawfully goes far to prevent individual acts of misconduct or violation of constitutional rights from becoming universal practices in our country, and so I’m on a campaign to try to educate the public to make sure that people continue to demand that their police act lawfully.
J. Craig Williams: And Jon, if our listeners want to join your campaign. How can they reach out to you?
Jon May: I’m always interested in hearing from people. They can send me an email to Jon May, that’s [email protected] and I’ll do my best to respond to them. The only thing they can do is spread the word, write their Congress persons, and continue to expect that their friends and their neighbors will demand that their elected officials protect their rights.
J. Craig Williams: Great. Well, Jon, thank you very much and as we wrap up, I’d like to thank our guest, Jon May. It’s been a pleasure having you on the show.
Jon May: Thank you very much. It was been an honor.
J. Craig Williams: Well, what Jon is proposing is a large step from Dobbs and certainly concerning. But I’ll say this about it. If you didn’t ever think that abortion rights would get overturned, think about what Jon has to say.
Well, for our listeners, if you’ve like what you heard today, please rate us on Apple Podcast or your favorite podcasting app. You can also visit us at the legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams, thanks for listening, please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.
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