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  • The Tweety Bird Defense

    Those who remember the Warren Court recall imaginative renderings of the constitution to expand criminal’s rights coupled with outright judicial hostility to police. The result was a national crime wave only recently curbed by new police techniques and more favorable rulings from the Supreme Court.

    Now that Barack Obama has identified Earl Warren as a model judge, we could face a judicial flashback to the 1970s. Unfortunately, we have a preview of what that might look like from a recent Sixth Circuit case involving a drug arrest in Michigan.

    The suspect, Lonnie Ray Davis, was pulled over for violating a Michigan law prohibiting “dangling ornaments” that obstruct a driver’s vision. Davis had a 4” Tweety Bird statue dangling by a 3” string on his rear view mirror.

    When he was pulled over, Davis admitted he had no drivers license, and was arrested. A search revealed an open pint of Hennessey Cognac, a stun gun in his waist, 2 baggies of crack cocaine in his sock, four rolled up wads of cash in his pocket, and a loaded .380 pistol under the drivers’ seat.

    So, we have Tweety Bird, open booze, no license, two weapons, illicit drugs packaged for sale, and the apparent proceeds of prior sales. What were the honorable judges of the Sixth Circuit worried about? Tweety Bird, of course! You just can’t trust those cops, the judges concluded, to tell the difference between a dangling Tweety Bird ornament (not allowed) and a parking pass (ok). Even though Davis’ lawyers had not even raised the point, the judges struck down the Michigan “ornament” law finding it too vague to trust police with enforcing it.

    Beyond the facial absurdity, the case is a classic example of judicial activism. First, courts have a duty to avoid raising constitutional issues unless they are necessary to decide the case. Here, the court bent over backwards to decide a constitutional question that no one raised or even discussed. Second, the judicial gymnastics appear designed to undermine Supreme Court case law that allows police to pull over drivers for minor traffic violations even if the “real” reason for the stop is a belief that the driver is a drug runner. If you can’t pull over cars festooned with Tweety, then police have fewer tools to stop potential drug dealers.

    Heritage’s Todd Gaziano has previously spelled out that the opinion’s author, former Chief Judge Boyce Martin, is known for mischief that would make even the most strident activist blush. GW Law Professor Orin Kerr has more on this at the Volokh Conspiracy for those interested in the technical legal doctrines of which such silliness is composed. For the rest of us this case is a sobering reminder that some judges actually believe there is more to fear from a Michigan Township Policeman than from a liquored-up, armed, well-stocked drug dealer illegally operating a motor vehicle.

    Posted in Legal [slideshow_deploy]

    12 Responses to The Tweety Bird Defense

    1. Stan, Greenfield, TN says:

      The thing that concerns me about this is the whole case was based on the officer's stop due to "suspicion" of a violation. He thought the object obscurred the driver's view. At 2:00 a.m. it was difficult to determine what was hanging from the mirror.

      Actually, we all know the officer probably didn't stop the driver JUST because of the Tweety Bird. He was also probably convinced the driver was up to no good. I personally think he has the authority and duty to stop anyone who he wants to. There is no harm in stopping an individual for the purpose of checking his drivers license. Here in Tn, the State Troopers announce on the radio when and where they plan to setup roadblocks to check for drunk drivers!!!!! Is that not the stupidist thing you ever heard of? I say stop anyone anytime and anywhere. Random drug screens in factories work. Why not random traffic stops as well.


    2. Pingback: The Tweety Bird Defense « America, You Asked For It!

    3. Mark, Houston says:

      Hey Stan , Do you honestly believe that our peace officers should have the aythority to stop ANYONE at ANYTIME just becuase he/she feels like it ? What kind of precident does this set ? "Hey, that kid has long hair so he's a crook." or "That young black kid is in a white subdivision,he's a criminal" . At what point Stan do you draw the line . A policeman HAS to have a cause to stop and detain you PERIOD.Unless you believe in a LIBERAL state .

    4. Brenda, California says:

      Let the police officers do their jobs to stop people from breaking our laws and hurting innocent people. Let our Border Patrol officers do what is necessary to keep our laws and not be punished for doing just that. We are living in a time that is full of greater dangers to our country than ever before —- we need our judges and and government officials to step up and allow them to do their jobs. All this garbage about being politically correct is insane and a sure way to bow down to people that want to change America forever.

    5. Rich in Bellevue says:

      This is just more evidence that the war on drugs is a profound failure. If crack were legal and addiction were treated as a social problem rather than a criminal one, Mr. Davis would be out of a job and the Michigan police could focus on fighting real crime rather than small-time drug dealers.

    6. Matthew A. Woods, OH says:

      Our judicial system was not designed to prevent individual crimes. It does an excellent job of deterring crime by removing criminals from the general population if allowed to work. However, I have to led support to the Sixth Court's decision if Mr. Davis was pulled over because the officers thought Mr. Davis was up to no good. Such pretextual use of the "dangling ornaments" law is not only unethical, but immoral.

      Then again, if the officers just thought Tweety's pendulous posture was likely to cause an accident, bravo Michigan PD. Shame on you Judge Martin for playing defendant's attorney. You do a disservice to the law abiding people of Michigan.

    7. Ian in Maine says:

      Rich, how many crimes are a result of addiction? Abused spouses and family members by a drunk father/mother? An addict holding up a convenience store for drug money? What you don't seem to understand is that addiction is a social ill that can, and often does,lead to criminal activity. Mr. Davis not only had crack cocaine, but a loaded handgun, an open container of alcohol, and was driving without a license. The crack cocaine was the least of the officer's concerns.

      Let's say a drug addict gets into a car after leaving a rehab meeting, lights up a pipe, gets high, and then drives head on into a family coming home from church. Which would YOU have preferred? That the driver had been behind bars at the time or behind the wheel? OR, let's say crack is legal and some everyday schmoe lights up a pipe on his way home and again hits an oncoming car head on. Manslaughter IS real crime, and is often a direct result of drug addiction.

    8. Gregg, Minnesota says:

      With the continuing escalation of societal breakdown and subsequent "hand tying" of police enforcement of obvious offenders, the future bodes ill for anything but anarchy ruling our streets. We decry the harsh penalties imposed in some countries as not proportional to the crime, but we will be forced to adopt new measures of our our own, when we decide that playing "pattycakes" with criminals begets more of the same. It is possible to be iron fisted with career crime and yet merciful to those who made an impetuous mistake. Electing judges and DA's who know the difference will be a key aspect of fomenting a safe society for all. Our current system is doing far less than it needs to in accomplishing that goal.

    9. Dennis A Social Circle Ga. says:

      The “crimminal justice system” is correctly named. Justice for the crimminal not nay of the victims. Suppose that this person had hit your family because the “Tweety” bird had blocked a small part of his vision. How would you feel then. The police would have been damned because they were not doing their job.

    10. Kent, Virginia says:

      Liberal, activist judges continue to make America safer for lawbreakers and sociopaths than law abiding citizens. Why does our government allow these 'social engineers' to re-interpret the Constitution and operate without any oversight? When are our spineless elected representatives going to begin to make some tough decisions and remove these little gods from power?

    11. Phlip, Carlsbad says:

      DARN that Constitutional right to privacy without warrant-less search and seizure!

      Ooh, look! The cops broke into a gun store looking for illegal machine guns! Whose side are you on NOW?

    12. Gloria Wolk, Raleigh says:

      The 6th cir. almost immediately afterward withdrew that ruling. In 2009 they issued another ruling on this case based on all the reasons why this driver should have been penalized.

      You can find the redone ruling by googling "Lonnie Ray Davis."

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