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Law enforcement will no longer be able to stop a vehicle or person in Maryland solely based on the smell of cannabis, under a bill that will become law without Gov. Wes Moores signature.

The bill was one of the most passionately debated measures in the 2023 General Assembly session and won final passage just minutes before adjournment. Its final fate has been unclear for several weeks, as the governor signed hundreds of other bills into law including the July 1 legalization of adult cannabis use but not the odor bill.

Moore, a Democrat, did not explain his decision in a statement announcing the action on Friday afternoon.

Supporters said the change was necessary, given that adults will soon be able to legally use and possess small amounts of cannabis.

This bill will establish a policy that prevents officers from stopping motorists and searching their vehicles without evidence of intoxication or any other just cause, protecting Marylanders from illegal searches and abating unjust criminalization, the Legislative Black Caucus of Maryland wrote to fellow lawmakers in support of the bill.

The proposal, which goes into effect July 1, came under criticism, however, from police, sheriffs and prosecutors.

Using odor of cannabis alone as grounds to briefly detain a person or to search a vehicle will not violate the Fourth Amendment and would be reasonable, wrote the Maryland Chiefs of Police Association and Maryland Sheriffs Association in testimony to lawmakers.

Republican lawmakers also largely opposed the bill. In the final minutes of the General Assembly session, House of Delegates Speaker Adrienne A. Jones did not allow lawmakers to explain their votes on the cannabis odor bill. Some frustrated Republican delegates headed for the exits, while one held up proceedings and yelled at the speaker. (He later apologized.)

The states highest court has previously offered conflicting guidance on how officers can handle the smell of marijuana, according to a nonpartisan analysis of the bill. In 2020, the court held that the odor alone isnt indicative of an illegal amount of the drug and does not meet the standard of probable cause for a search. Then in 2022, the court held that odor provides a reasonable suspicion of criminal activity sufficient to conduct a brief investigatory detention.

The bill also states that when a law enforcement officer is investigating a person for suspicion of driving under the influence of cannabis, the officer cannot search areas of the vehicle that arent immediately around the driver or arent likely to contain evidence relevant to the drivers level of impairment.

Any evidence thats improperly obtained wont be admissible in court.

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The bill was among 10 that will become law without the governors sign-off, Moores office announced Friday afternoon. He also vetoed three bills; two that were duplicative of other measures he signed and another that would have changed the process for the state to contract with companies for commuter bus service.

Moore previously signed hundreds of bills into law, including measures that will let Marylanders decide in 2024 whether to put reproductive rights into the state constitution, raise the minimum wage to $15 per hour on Jan. 1, grant a bigger tax break to retired veterans, set up the framework for the cannabis industry, restrict the use of concealed carry handgun permits, and expand trans health coverage for those with Medicaid insurance.

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As of July 1, police won't be able to stop people for smell of cannabis - The Baltimore Banner

Thank you to everyone who has read and commented on my posts this week. It's been so much fun! And thanks again to Eugene and his co-conspirators for the opportunity. After this final edition I will go back to assisting my colleague John Ross with his Short Circuit newsletter, which he posts here every Friday.

You can see the previous four posts in this series here, here, here, and here, all of which summarize my new book from the University of Michigan Press, Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters (available for free here).

Today I'm going to give an example of how a Baby Ninth should work in practice, briefly address a potpourri of issues I haven't had space for, and close with some big picture thoughts about what Baby Ninths mean for how we look at American constitutionalism more generally.

In the book I talk about some food truck cases we've done at IJ, where cities block food trucks from operating for protectionist reasons that aren't plausibly related to public health and safety. Let's suppose you're one of them. You want to park your truck in the lot of an office building. The building's owners also want you to park therethey like that their tenants can buy lunch from your truck. But there's a city ordinance that prohibits you from parking within 500 feet of a restaurant, even if you're on private property. And there are other restaurants on the building's street within that distance.

Now let's say you live in a state with a Baby Ninth. Does this law violate one of your rights "retained by the people"? Well, it certainly seems to get in the way of your right to contract with the building's owners and your right to earn a living by selling from there. But, as I said yesterday, that in itself doesn't mean the city has violated the state constitution. These rights aren't absolute. The city could defeat a claim you might bring if, based on real facts, it can show it's needed to further a legitimate public purpose. That would allow the city to demonstrate that in this case, your asserted rightto the degree that it's implicatedis not actually "retained" but has been given up to the government in the social contract bargain.

In this case you should prevail. It's unlikely the city can show the truck causes any public problems just because it's within 500 feet of a restaurant. For other regulations you might have to abide by, such as fire restrictions, litter control, or food safety rules, the story could be very different. But suppressing competition isn't enough. "We're living in a society!" doesn't mean we delegate to the government the power to simply pick winners and losers.

Notice this is stronger than "rational basis review," as it's currently practiced in federal and in (most) state constitutional law, but it's not necessarily strict scrutiny. It's not even necessarily a presumption against the government. Perhaps my indifference on these shades comes from my years of litigating under the rational basis test, but I've found for most questionable laws you don't need strict scrutiny to be able to constitutionally defeat them; you just need the kabuki theatre of the rational basis test to go away. Then judges can actually take your facts and arguments seriously. This is hardly radical stuff.

And now, as Larry King used to do, some news and views on a few other issues.

The Ninth Amendment itself. When I discuss my book, I've noticed people here and elsewhere often want to talk about the Ninth Amendment itself, or how they can use it do to X legal thing, ignoring the state constitutional side of things. This is an unsurprising result of the focus so many of us have on the U.S. Constitution. But it's a bad habit. Again, unless you're up against the federal government itself, your state constitution is potentially just as useful in fighting the government as the U.S. version. Looking at Baby Ninths isn't just a way to think about the U.S. Constitutionalthough it can be, as I conclude below. Primarily, it's a way to actually do something real concerning state and local government. State constitutional law is neglected in law school and even more so in legal media, but that doesn't mean you should too. Go read your state constitution. If you're a lawyer and interested in bringing a civil rights caseespecially if it's pro bonothink about using the state constitution, including a state's Baby Ninth.

Variations. Most Baby Ninths are almost identical to the Ninth itself, with "impair" often used and "construed" sometimes dropped. I don't think this makes a material difference, but I talk about it a bit in the book. There are a handful with more differences. Minnesota and Mississippi have "retained by, and inherent in, the people." I also don't think that's material. Then there's Georgia and Virginia. Georgia's is super interesting. Read my book (pp. 131-32) to find out why! And other than Georgia's, Virginia's is the only one without "retained."

More direct language. Professor Mitchell Gordon at St. Thomas (MN) has a wonderful article about the oddness of the Ninth Amendment. I'll admit, the language can be a little mystifying. So why did state delegates use it to protect unenumerated rights? They could have just said "there are other rights retained by the people and they are also protected by this Constitution just as much as the foregoing." I think they used the Ninth instead because it was "off the shelf," so to speak. This happens a lot in state constitutional law, with states borrowing from what the feds and others have done instead of drafting anew. Could Baby Ninths have been written differently? Sure. But that doesn't mean they don't protect Lockean rights.

The name. I've seen a couple people object to the nickname. As I'm more than upfront about in the book, I didn't invent it. John Yoo and Akhil Amar did (one in print, one in lectures). But I like it! As John Yoo wrote, it follows from the nickname "Baby FTC Acts" which many states have for consumer protection laws. It's not that states are babies, it's just that all Baby Ninths chronologically came after the Ninth itself. The same isn't true of other provisions, such as the Fourth Amendment.

In the end, what's going on with Baby Ninths? Yes, they're "etcetera clauses," but is there a complementary way to think about why we have them? Via some mild speculation, in the book's afterword, I theorize that what might be going on is a bit of a compromise. As a commentator said, Americans like unenumerated rights, but often don't like specific examples of unenumerated rights. Going into a constitutional convention many delegates will have rights they like and rights they don't care about. In adopting an unenumerated rights clause (whether a Baby Ninth, a Lockean Guarantee, or something else), they know that it could be interpreted to protect all of those rights. And yet they've included these provisions over and over again anyway. Why? Perhaps because they're erring on the side of liberty. Yes, the provisions might be interpreted in the future to protect a right the delegate isn't a fan of, but it also might protect rights she cares deeply about. So she and her various other delegates will err for more freedom instead of not having unenumerated rights at all and giving the statedare I say Leviathanmore power.

It's also telling that no state has adopted a provision that says something like "there are no unenumerated rights." Or even "courts must enforce unenumerated rights very sparingly." Dog/bark?

Finally, what does the story of Baby Ninths tell us about the U.S. Constitution? It doesn't help us directly interpret the Constitution's text. But it does demonstrate that far from unenumerated rights being something that Americans shun, they're something that's normal. Popular, even! And those same Americans who adopted a Baby Ninth sixty-six different times in U.S. history also wrote and amended the Constitution itself. When we're reading the U.S. Constitution, we should be thinking: "Unenumerated rights provisions are common for Americans when they write constitutions. It wouldn't be surprising if there was one in this document as well."

I'll leave you with my book's epigraph. Thank you for reading.

Anna: Oh, yes, I'm sure we could see many things . . . such as iron bars, guards at the doors, et cetera, et cetera.

The King: What is this "et cetera"?

Anna: Well, it means "and all the rest and so forth," Your Majesty.

The King & I

See the original post:
Baby Ninth Amendments Part V: Real Life, Potpourri, and the Big ... - Reason

IL file photo

The Court of Appeals of Indiana upheld a mans possession of a firearm by a serious violent felon conviction Friday, affirming a trial court decision that a police stop and search of the man was lawful and did not violate his Fourth Amendment rights.

In 2021, Tony Lawrence Richey was stopped by Shelby County Sheriffs Deputy Justin Parker as he was responding to a call that there was a suspicious person walking on Flat Rock River bridge.

Parker found Richey under the bridge, camping.

Richey told Parker he had not been walking on the bridge, but he packed up his camp and called a relative to pick him up.

Parker then went home and during his drive, he saw Richey walking on the road, where the two waved at each other.

After going home to change clothes, Parker left for an appointment in Greenwood.

He saw Richey again and stopped to ask him where he was going. Richey said he was trying to get to Indianapolis. Parker thought it was strange given that Richey was not walking in the direction of Indianapolis.

After almost four hours since his interaction with Richey, Parker saw him again walking around in the rain without any rain gear.

Parker knew there werent any gas stations or restaurants nearby, so he called Deputy Kenneth Thompson to check on Richey. Parker saw Richey enter the woods.

Parker called off-duty Shelbyville Police Officer John Searle about Richey.

Searle later saw Richey when he was driving to a gas station in his patrol vehicle. He noticed that Richey was walking with the flow of traffic, so he activated his red and blue lights and stopped him.

Richey said he would like a courtesy ride, so they called Thompson to give him the ride.

Thompson asked Richey if he had any guns on him because he always makes sure people are unarmed when giving them a courtesy ride.

The deputy discovered a handgun and ammunition. He arrested Richey on suspicion of carrying a handgun without a license.

Richey was charged with Level 4 felony unlawful possession of a firearm by a SVF.

The jury trial began in March 2022. Richey objected to the handgun and ammunition as evidence, but it was overruled.

The state also introduced court records from the Owen Circuit Court showing Richey was convicted in 1995 for eight felony counts: three counts of Class B felony burglary, three counts of Class C felony burglary, one count of Class C felony arson and one count of Class D felony automobile theft for crimes committed in 1994.

They matched Richeys date of birth and tattoos with Owen Circuit Court records to confirm it was him. The state also used a recorded call Richey made from the Shelby County Jail, where he said, I own up to what I did wrong, and mentioned a case that I had in Owen County.

The jury found Richey guilty and the trial court sentenced him to seven years, ordering the first six to be served in the Indiana Department of Correction and his final year on probation.

Richey appealed and presented the court with three issues. The first issue Richey brought to the appellate court was whether officers unconstitutionally seized him, violating the Fourth Amendment of the U.S. constitution and Article 1, Section 11 of the Indiana Constitution prior to discovering a firearm.

The appellate court disagreed with Richey, finding the search did not violate the U.S. Constitution or the state constitution.

Richey asserts Officer Searle lacked reasonable suspicion to initiate a Terry stop of him. However, police officers may initiate a stop when they observe even a minor traffic violation, State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006), and Officer Searle observed Richey walking on the wrong side of the road, which is a Class C infraction, Judge Melissa May wrote. Because Officer Searles Terry stop of Richey turned into a consensual encounter before the discovery of the firearm and Deputy Thompsons search of Richey after Richey disclosed he had a handgun was reasonable, the officers did not violate Richeys rights under Article 1, Section 11 of the Indiana Constitution.

The second issue he brought to the court was whether the state presented sufficient evidence that he had committed an SVF-qualifying offense.

Richey argued that tattoos can be added, removed or modified over time, and that his reference to an Owen County case could mean a case other than the 1994 burglaries.

However, these arguments are simply invitations for us to reweigh the evidence, which our standard of review precludes, May wrote. A reasonable finder of fact could weigh the matching name, date of birth, and physical characteristics described in the Owen County Court records, the tattoos, and Richeys statement during the jail call to mean Richey was the offender convicted of Class B felony burglary in the Owen County case.

Lastly, Richey asked whether the trial court committed fundamental error when it admitted evidence of more than one of his prior convictions.

Rejecting that argument, May wrote, (T)he fact that the jury learned Tony Lawrence Richey was convicted of multiple other felonies in 1995 does not constitute fundamental error.

The case is Tony Lawrence Richey v. State of Indiana, 22A-CR-1107.

Link:
COA affirms SVF firearm conviction, finds stop and search by police ... - Indiana Lawyer

Item 1.01. Entry into a Material Definitive Agreement.

The information contained in Item 2.03 of this Current Report on Form 8-K isincorporated by reference in this Item 1.01.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an

On May 9, 2023, Barings BDC, Inc. ("BBDC") entered into an amendment (the"Fourth Amendment") to the Senior Secured Revolving Credit Agreement, dated asof February 3, 2019 (as amended by the first amendment thereto, dated as ofDecember 3, 2019, as further amended by the second amendment thereto, dated asof December 29, 2021, as further amended by the third amendment thereto, datedas of February 25, 2022, and as further amended by the Fourth Amendment, the"ING Credit Facility"), among BBDC, as borrower, Energy Hardware Holdings, Inc.,Barings BDC Finance I, LLC and Barings BDC Senior Funding I, LLC, as subsidiaryguarantors, the lenders party thereto and ING Capital LLC ("ING"), asadministrative agent.

Under the Fourth Amendment, among other changes, the maturity date of the INGCredit Facility was extended to February 21, 2026.

The above summary is not complete and is qualified in its entirety to the fulltext of the Fourth Amendment and related documents, which is attached hereto asExhibit 10.1 and is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

* Schedules to this Exhibit have been omitted in accordance with Item 601 ofRegulation S-K. The registrant agrees to furnish supplementally a copy of allomitted schedules to the SEC upon its request.

--------------------------------------------------------------------------------

Edgar Online, source Glimpses

The rest is here:
BARINGS BDC, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet...

By now, you have already heard what happened last week on the New York Subway. A gentleman named Jordan Neely, who seemed to be experiencing a mental health crisis, reportedly had a threatening interaction with other subway passengers. One of those passengers, a Marine Veteran named Daniel Penny subdued Mr. Neely and in the course of doing so, allegedly caused his death.

My experience with urban public transportation is from a different city, and a few decades earlier, but I have seen my share of shady characters on the subway. I always felt safe on the subway during rush hour, when it was very white-collar and there seemed to be safety in numbers, but after-hours travel in the shadowy underground is not for the timid.

I also recall that the specter of homeless people suffering from mental illness is a part of everyday life in the city. Sometimes they ask for money; sometimes they yell at intersections. Often, we know them by name and associate them with specific neighborhoods. They were usually animated and could be disruptiveand they didnt always smell greatbut in my experience, they never hurt anyone.

Like most stories, there are bound to be two sides. I think the case will come down to what witnesses say that Mr. Neely did or didnt do immediately before he was restrained. Was Neelys provocation an assault, or was it speech? If it was only speech, was it speech that would make the elusive reasonable person perceive a threat of violence? I wasnt there and I take no position. We will see.

What I find more interesting about the case is the sequence of events after the incident. First, Mr. Penny was questioned and released without charge. Then, protesters quickly organized and demanded his arrest. Shortly thereafter, Mr. Penny was invited downtown for a free sitting with a photographer and to post a $100,000 bond.

The question raised in my mind today is one that has been debated by legal scholars since long before the launch of our relatively young judicial system. How, when, and to what extent should public opinion influence justice?

The easy answer is that law enforcement should be in contact with the citizens. Were learning, I think a bit late, that their demographics should even reflect the citizens. In most cases, the enforcement side of the equation is answerable to their respective governing authorities (i.e. state, federal, or local), except in the case of County Sheriffs, who are typically elected. The prosecutors follow a similar model. Federal, state, and municipal prosecutors, answer to elected officials but are directly elected at the county level.

Courts, on the other hand, should be independent and free of external influence. They should be able to rely upon and maintain the laws passed by representatives of a free people. That part makes sense to me. An alternate point of view is that courts wield a great deal of power and need to be held accountable. Public scrutiny keeps those powers in check and public approval is a source of much-needed legitimacy.

Personally, I think we enjoy sufficient representation from elected officials and that our justice system is robust enough to sort out any bad actors.

Resorting to mob action doesnt cross my mind, but I have the privilege of knowing that my elected officials will return my phone call. People who feel less enfranchised will undoubtedly have another point of view.

Here in Nebraska, we vote to retain our judges after whats called an assisted appointment. Im comfortable with that system, but in Texas, Illinois, and a handful of other states, judges have full-blown, partisan elections with campaign contributions and all of the baggage that follows. Is that an appropriate amount of public influence? Whats the right formula? How do we best balance public accountability with independence and freedom from systemic compromise? Its a tricky equation, and I sometimes wonder if were getting it right.

I also find it ironic that public influence would be linked to legitimacy. I suppose a court could go too far with an unpopular decision and lose public support, but at least for now, I am confident that the courts are better informed, more cautious, and ultimately more trustworthy than the general public.

Historians tell us that our founding fathers wrote our Constitution with two threats in mind: tyrants and the mob. Our Fourth Amendment is intended to protect us against law enforcement, but the founders dedicated a whole unelected branch of government to counter our mob-controlled, publicly elected officials.

When I see prosecutors appear to bend to public sentiment, I think of our darker days when hooded rioters plucked people out of jail for pre-judicial lynchings. Im not suggesting thats what happened in New York.

We simply cant know, but its one of those areas that we need to watch carefully. Our system of justice is far from perfect, but I think its fair to most people, most of the time, and we need to preserve that trust with our watchful eyes.

View post:
Column: : Justice, tyrants and the mob (5/19/23) - McCook Daily Gazette