Lost Freedom & Less Security:
How Senators Goschka, Schuette and Gougeon's New Bill Became Law and Expanded
WARRANTLESS ARRESTS
"There is no conflict between liberty and safety. We will have both or
neither. - Ramsey Clark
"An act of the legislature, repugnant to the constitution, is void."
- John Marshall
Since the inception of this great country we call the United States
of America, one of the fundamental concepts proven through history from the
Revolutionary War, up through the Civil War, World War II, and all of our
'defining' conflicts, is that a country is not worth defending unless it
can guarantee freedom for its citizens.
Our forefathers fought and died for a Bill of Rights that guarantees all
citizens protection against unreasonable arrest and search of our homes and
property, and throughout our history courts of law have held that when the
right of privacy must reasonably yield to the right of search, it generally
must be decided by a neutral judicial officer, not by a policeman or a
government enforcement agency.
Now, however, thanks to a new warrantless arrest law co-sponsored by State
Senators Mike Goschka, Bill Schuette, and Joel Gougeon, police may now
arrest persons that "believe" have committed a crime, without obtaining a
warrant, even though they have not witnessed the offense.
Known as Act. No. 208, which was presented in Senate Bill No. 1222 and
approved by the Michigan Senate with only one dissenting vote and only 13
opposing votes in the Michigan House of Representatives, this odious new
act was signed into law by Gov. John Engler on June 26th of this year and
went into effect on August 21st.
Indeed, the new statute is so broad as to allow entry into homes if a
police officer 'suspects' that a crime (even a 93-day misdemeanor) has
taken place.
In a letter to The Saginaw News on Sept. 14th, Saginaw attorney Eugene
Mossner reprimanded the media for its role in this legislative disaster,
writing how "We must be disappointed in our media for failing to bring this
pending legislation to the attention of the public before it was passed and
signed into law. Reporting on what has already been done is like locking
the barn door after the horses have already departed. This law was
apparently spirited through without even the knowledge of our police chief
or local police agencies."
Because The Review prides itself upon serving as a 'watchdog' for all
legislative issues that affect our fundamental freedoms, we share the shame
for not being more vigilant on bringing this regressive action into the
full glare of public attention.
While we cannot undo the damage that has been spawned by this powerful
expansion of the 'police state', we can bring to your attention exactly
what happened and the parties responsible, along with the mindset and
rationale for implementing something so foreign to our long held notions of
freedom and privacy.
And in researching this story, perhaps the most chilling discovery of all
that was made is how Public Act 1222 was passed into law not through public
& legislative scrutiny and debate, but through disinformation, misleading
intent, and amidst a flurry of legislation presenting during the waning
days of the State's legislative session.
Sacrificing Rights in the Name of School Safety
"Men fight for freedom; then they begin to accumulate laws to take it away
from themselves. The natural progress of things is for liberty to yield and
government to gain ground."
-Thomas Jefferson
Perhaps the most remarkable component of SB1222 is the high-level of
bi-partisan support it received to assure its passage.
In the wake of the Columbine High School shooting incidents, coupled with
several incidents and bomb scares within the state of Michigan, Sen.
Thaddeus McCotter introduced a pair of bills through the Judiciary
Committee on May 2nd intended to amend the Michigan Penal Code and the Code
of Criminal Procedure to prohibit & provide penalties for making certain
threats relating to school property, employees, or students, and to allow
an arrest without a warrant for those violations.
Whereas Michigan law allows an officer to arrest a person without a warrant
in certain situations, SB 1222 would add situations pertaining to school
grounds, in which an officer had reasonable cause to believe that an
incident had occurred or was taking place and that the person to be
arrested had committed or was currently committing the violation,
regardless of whether the violation was committed in the officer's presence.
On May 16th the Senate version passed on a roll call vote with 36 Senators
voting yes and one lone dissenter, Sen. Elma Smith a Democrat from Wayne
County.
Later in the month, on May 24th, the House Committee on Criminal Law &
Corrections adopted a substitute for the Senate Bill that in addition to
the provisions of the Senate-passed version, would allow an officer to make
a warrantless arrest for any misdemeanor that is punishable by imprisonment
for more than 92 days.
On June 8th, the House version also passed on a roll call vote of 92 to 13,
with the broad ranging amendments of expansion made on the Floor of the
House.
Why Were Our Legislators Asleep at the Wheel?
According to Saginaw's State Representative Mike Hanley, who also
serves as the Minority Chair of the House, this entire act started as an
issue geared strictly to school safety.
"This bill flew through the House in the waning days of the summer session
without much scrutiny," he explains. "I voted for the bill because I was
under the impression it pertained strictly to schools, and in order to
enhance school safety, thought the warrantless arrest authority would
pertain only if the violation were on school grounds."
"I was not aware that amendments had been made on the floor that day to
expand warrantless arrests to all 93-day misdemeanors," states Hanley.
"You have to understand that we were bombarded by legislation, and frankly,
when floor amendments surface, I rely upon my Committee Chairman to inform
me of any changes. Laura Baird was the House Committee Chair overseeing
this bill, and she indicated there wasn't any problem with it."
The Review attempted to phone Rep. Baird's office, but she did not return
our call prior to deadline.
However, a Legislative Affairs analyst did corroborate that the bills came
through Committee and were taken up by Republicans at the time as a
priority item. Apparently nobody opposed it during the Committee hearings
and only one State police officer testified at the hearing that this
expanded power for warrantless arrests was needed in order for police to
better do their job.
Similarly, Democratic State Rep A.T. Frank also voted for this expansion,
echoing similar sentiments to those of Hanley.
"At the time I was working on a lot of appropriations matters," explains
Frank, "and thought the bill pertained strictly to school property. I
thought if the information on any pending arrest were broadcast over the
radio to other officers, it would indicate a 'positive infraction'.
"In terms of the question of 'reasonableness' pertaining to the arrest, in
the case of Tucker v. DesMoines, the Supreme Court noted that on school
property the standard is different. Positive information must exist and if
that is given to the officer, that gives the arrest its 'reasonableness',
continues Frank.
"The fact is that over the years the Supreme Court has chipped away at 4th
Amendment rights, and when I asked Laura Baird about this legislation, she
indicated to me that the Courts were already allowing what this bill does.
In fact, there is no difference between what the Courts are already doing
and what this legislation is doing."
But isn't expanding this warrantless arrest power for all 93-day
misdemeanors an unprecedented action?
"I think there are still some controls on police power," reflects Frank,
"but if we need to revisit this issue and change it, we probably should."
"What really happened is that Mike Goschka did not keep the local
delegation informed and up to snuff on one of his bills, and that isn't the
first time this has happened," asserts Frank.
"Nobody was allowed access to the bill after the reading, and with term
limits now firmly in place, unfortunately a lot of the more seasoned
legislators are not being honest about what their bills actually contain."
The Republican Response
Bill sponsors McCotter, Gougeon, and Goschka did not return phone
calls placed by The Review to discuss this action. Goschka had a
legislative aide return our call, but it was after 5:00 PM and the return
phone call was never forthcoming prior to our deadline.
Senator Bill Schuette, however, did have his aide Frank Ginotti return our
call. When I got Ginotti on the phone, his immediate response was:
"Hopefully you will be the first reporter in the State of Michigan to get
this story right."
"In terms of requiring an independent magistrate to issue a warrant before
an officer can make an arrest, there exists a theoretical distinction
between a misdemeanor and a felony," claims Ginotti.
"The courts have said for an officer to make an arrest that probable cause
must exist and that the information or activity that leads to the arrest
must be committed in the officer's presence or be verifiable. "
"All this new bill does is attempt to give a unified standard for employing
the same probable cause test that we use with felonies. This law simply
enables the individual patrol officer to make that judgement."
"This bill does not allow officers to enter a person's home without a
warrant. What happened in the House of Representatives is that this
standard now moves from a felony to a 93-day misdemeanor, and we said
rather than creating confusion, let's create a uniform standard that
applies to any crime that carries a punishment of 93 days or more in jail,"
continues Ginotti. "For example, with cases of spousal abuse, or any other
excruciating circumstance, entry into a home could be executed. But it only
applies to an extreme case, and not for a 90-day misdemeanor."
Clarity or Confusion?
Saginaw attorney William Street takes issue with Ginotti's
analysis. "What will be interesting to see is how many people now get
stopped, searched, and arrested for 93-day misdemeanors," notes Street.
"If the intent is to eliminate confusion, why is there no comprehensive
list of all the 93-day misdemeanors that an officer can stop and arrest you
for," asks Street. "Rather than ending confusion, I believe this move will
only add to it."
"While it is true that the Supreme Court, particularly in the last two
decades, has gradually chipped away at the 4th Amendment, the Lansing
Prosecutors Association has been after this legislation for a decade,
trying to eliminate the felony/misdemeanor distinction."
"As for whether or not people can still feel safe in their homes, I would
take issue with that as well," asserts Street.
"For example, in the case of People v. Reinhardt, which has stood as the
recent standard in Michigan, a civilian neighbor simply told a police
officer that Reinhardt had damaged his property. The officer went to
Reinhardt's house, saw his car in the driveway, entered the home, grabbed
this guy, gave him a breath test, and processed him for drunk driving. The
court ruled that the entirety of the arrest was illegal," notes Street.
"Now, I ask you, with this new warrantless arrest standard for any 93-day
misdemeanor, how will this new law affect a case such as that?"
"If the truth be told, I believe the real motivation for this legislation
is to extend the number of incidents contained in 93-day misdemeanors that
require people to be booked and fingerprinted," adds Street.
"The State has this new APHIS fingerprint system, which feeds into a
central computer that contains a tremendous amount of personal information.
This is a State Police project and I believe this is a way to expand and
cultivate that central data bank."
As Wendy Wagenheim, Legislative Director for the American Civil Liberties
Union , views this new law, it is merely a means to enable individual
police officers to make judgements usually reserved for impartial
magistrates.
"The legislature has increased the opportunity for police abuse," she
asserts. "It is now 'open season' on schools and the A.C.L.U will be
watching what happens with these new changes very closely."
"We are very concerned with the loss of liberty involved," she continues.
"What if a child in school is arrested based on bad information or mere
suspicion and then he can't post bail?"
"Unfortunately, we can't test this legislation in a court of law until an
individual is arrested under it and decides to challenge the
constitutionality," she concludes.
Conclusion:
Freedom is Hard to Win Back
While it is true that throughout the past 20 years, the Courts &
Legislature have created vast 'exceptions' to the 4th Amendment standard by
allowing searches & seizures without a warrant, to the point where it can
be viewed that the 4th Amendment guarantee of no arrest or seizure without
a warrant is now the exception itself rather than the standard, people
should not give up hope.
Knowledge is power and we must demand from our legislators that they take
steps to assure an informed electorate.
Moreover, in our rush to assure 'law & order' and safety in our streets,
schools, and homes, we must never lose sight that a society without freedom
is indeed hopeless, and the cornerstone of all freedom is based upon a
respect for the right of privacy.
As State Rep Mike Hanley noted to me: "You would be amazed. Recently we
conducted a focus poll throughout the state on 1st and 4th Amendment
issues, and the majority of those answering said they believe restrictions
should be placed on civil liberties."
Perhaps the biggest irony, however, is that while many from the extreme
conservative Right-wing clamor for their right to "bare arms"; now, with
this broad extension of warrantless arrests, they may actually have created
a self-fulfilling prophecy whereby the only means a person can remain
'secure' in their home from unwarranted intrusion, whether by criminals or
misguided police officers acting upon a 'belief', is by owning a gun in
their home.
And if such a realization isn't enough to throw a chill down your spine,
the nature of our Courts certainly should. Given the five Republicans
currently sitting on the Michigan Supreme Court, especially Justices
Stephen Markman, Robert Young, and Cliff Taylor, the likelihood of this
broad expansion of warrantless arrests being successfully challenged will
most likely have to move to the U.S. Supreme Court unless they are unseated
in the November election.
As for our mid-Michigan Senators that sponsored this legislation, I urge
you to contact them. Perhaps they will actually speak to you.
Their office phone numbers are as follow: Mike Goschka (373-1760); Joel
Gougeon (373-1777) and Bill Schuette (373-7946).
Finally, it is often argued that when it comes down to 4th Amendment
considerations, the only people that have pause for concern are those that
are doing something wrong.
Nothing could be further from the truth. Freedom is one thing you can't
have unless you give it to others. And as Thomas Paine said, "Those who
expect to reap the blessings of freedom, must like men, undergo the fatigue
of supporting it."
It isn't always easy, but in the immortal wisdom of Woodrow Wilson: "The
history of liberty is the history of resistance, and freedom is a history of
the limitation of governmental power."
