|Search & Seizure
Hiland v. Trent, 868 N.E. 2d 396, Third District
Appellate Court (5/16/07).
People v. Williams, 858 N.E. 2nd 606. Illinois Appellate Court, Ist District.
United States v. Cherry, 436 F. 3d 769 ( C.A. 7, Ill., 2006)
People v. Miller, 824 N.E. 2d 1080 ,
Illinois 1st District Appellate Court (2-7-05).
HUDSON v. MICHIGAN. United States Supreme Court, June 2006. 126 S. Ct. 2159
People v. Dieppa, 357 Ill.
App. 3d 847
ILLINOIS v. CABALLES. U.S.
Supreme Court (1/25/05)
writ of certiorari to the Supreme Court of Illinois. 03-923
DEVENPECK et al. v. ALFORD No.
People v. Parra, 352 Ill. App.
3d 584, 817 N.E. 2d 141 ( 2d Dist., 10/12/04)
People v. Travis Smith, 346
Ill. App. 3d 146, 803 N.E. 2d 1074
People v. Starbuck, 358 Ill
App. 3d 234 (3rd Dist. 2005)
People v. Mendoza, 846 N.E. 2d 169 (2d Dist App. Ct.,
People v. Frederick Hampton, 358 Ill App. 3d 1029 (2d Dist 2005)
and People v. Shinara Mathews, 357 Ill App. 3d 1062 (3rd Dist. 2005)
SMALL v. UNITED STATES
|In the last five years our U.S. Supreme Court has taken
to citing decisions by foreign Courts, either applying a rule or decision for a
case, or, in some instances, embracing an argument made by a foreign Court to
buttress its position on a given issue. One commentator has pointed out that
because “legal principles are not instantiations of a universal moral law, but
the product of local, political, cultural and historical circumstances, without
a deep study of foreign legal, political and social systems--a study that few
U.S. judges or justices, or for that matter academics, have made or are capable
of making—it is impossible to determine whether a foreign decision . . . is the
product of a reasoning process, values, ideology, or other circumstances that
are the same or similar in the U.S.”(1)
|For centuries U.S. citizens who have learned of or
experienced the unfairness of foreign laws, and the injustices attributed to
foreign courts, have thanked God that our constitutional safeguards, coupled
with the values and ideology of the “American way,” provide us with the best
judicial system in the world. Notwithstanding our criticism of some court
decisions, especially those failing to support our Second Amendment “right to
keep and bear arms” and our Fourth Amendment right to be free of unlawful
search and seizure, most of us would agree that any decision affecting a U.S.
citizen’s rights should be free of the taint of foreign influence of any kind.
|Another question that legal scholars have addressed is
the import of convictions in foreign Courts. If we cannot trust the application
of foreign laws to support a decision in a U.S. Court, should we grant
extraterritorial effect to a foreign decision which may have a deleterious
impact on a U.S. citizen’s rights?
|This question has been addressed to some extent in a
recent U.S. Supreme Court decision construing 18 U.S.C. Sec. 922 (g)(1), which
forbids “any person . . . convicted in any court . . . of a crime
punishable by imprisonment for a term exceeding one year . . . to . . . possess
. . . any firearm.” (Emphasis added.) In this case, the reverse side of the
issue was addressed—that is, in the process of enforcing a specific federal
statutory provision, should it be given extraterritorial application to a
conviction of a U.S. citizen rendered in a foreign jurisdiction.
|Small v. United States, In the Supreme
Court of the United States. Certiorari to the United States Court of Appeals
for the Third District. 127 S. Ct. 1311. Decided 4/26/05.
|History: The Petitioner, Small, was
convicted in a Japanese Court of attempting to smuggle firearms and ammunition
into Japanese controlled Okinawa. After serving five years in prison he
returned to the United States and purchased a gun. Sometime thereafter he was
charged with a violation of the federal statute prohibiting the possession of
any firearm by a person convicted in any court . . . of a crime
punishable by imprisonment for a term exceeding one year (18 U.S.C. Sec. 922
|Small pleaded guilty in federal district court, and reserved
his right to challenge his conviction on the ground that his earlier ‘foreign’
conviction fell outside the scope of the illegal gun possession statute. His
argument was rejected both by the Federal District Court and the Court of
Appeals for the Third Circuit, 183 F. Supp. 2d at 759; 333 F. 3d at 427, n.2.
Because of the disagreement among the 2d, 4th, 6th and 10th
Circuits, the U.S. Supreme Court granted certiorari.
|Breyer, J., delivered the opinion of the Court, in which
Stevens. O’Connor, Souter and Ginsberg, J.J., joined. Thomas, J., filed a
dissenting opinion, in which Scalia and Kennedy, J.J., joined. Chief Justice
Rehnquist took no part in the decision of this case.
|The Court began its analysis with a view to the scope of the
phrase “convicted in any court” by assuming that Congress had domestic concerns
in mind when the law was enacted. The following are some highlights of Justice
Breyer’s opinion (with various omissions not noted in the quoted text):
|Citing Foley Bros., Inc. v. Filardo, 336 U.S. 281, the
Court noted that “[t]his assumption is similar to the legal presumption that
Congress ordinarily intends its statutes to have domestic, not extraterritorial
application. . . .That presumption would apply for example were we to consider
whether this statute prohibits unlawful gun possession abroad as well as
domestically. And, although the presumption against extraterritorial
application does not apply directly to this case, we believe a similar
assumption is appropriate when we consider the scope of the phrase ‘convicted
in any court’ here.
[ The opinion goes on to note that the subject phrase describes one necessary
portion of the “gun possession” activity that is prohibited as a matter of
domestic law, while on the other hand past foreign convictions for crimes
punishable by more than one year’s imprisonment may include a conviction for
conduct that that domestic laws would permit, e.g., economic conduct that our
society may encourage, such as private entrepreneurial activity. Also, foreign
criminalization of buying and selling of goods for profit ( “Speculation” under
the Soviet criminal statute), and conviction for conduct that domestic law
punishes far less severely ( three years for an act of vandalism under the
statutes of the Republic of Singapore).]
|“. . . The statute’s language does not suggest any intent to
reach beyond domestic convictions. Neither does it mention foreign convictions
nor is its subject matter special, say, immigration or terrorism, where one
could argue that foreign convictions would seem especially relevant. To the
contrary, if read to include foreign convictions, the statute’s language
|“ For example, the statute creates an exception that allows
gun possession despite a prior conviction for an antitrust or business
regulatory crime 18 U.S.C. Sec. 921(a) (20)(A). In doing so, the exception
speaks of ‘Federal or State’ antitrust or regulatory offenses. ibid. If
the phrase ‘convicted in any court’ generally refers only to domestic
convictions, this Language causes no problem. But if ‘convicted in any court’
includes foreign convictions, the words ‘Federal or State’ prevent the
exception from applying where a foreign antitrust or regulatory
conviction is at issue. An individual convicted of, say, a Canadian antitrust
offense could not lawfully possess a gun. Combines Investigation Act, 2 R.S.C.,
1985 ch. C-34, Secs. 61(6)(9) (1985), but a similar individual convicted of,
say, a New York antitrust offense, could lawfully possess a gun.
[The opinion points out the apparent senseless distinction between covered
misdemeanors committed within the U.S. and those uncovered committed abroad,
adding to the anomalies caused by the phrase were it to apply to foreign
convictions. Also, that “. . . those who use legislative history to help
discern congressional intent will see the history here as silent, hence a
neutral factor, that simply confirms the obvious, namely, that Congress did not
consider the issue.”]
“. . . The statute’s purpose does offer some support for a reading of
the phrase that includes foreign convictions. As the Government points out,
Congress sought to ‘keep guns out of the hands of those who have demonstrated
that they may not be trusted to possess a firearm without becoming a threat to
society.’ [Citations omitted] . . . And, as the dissent properly notes . . .
one convicted of a serious crime abroad may well be as dangerous as one
convicted of a similar crime in the United States.
|“The force of this argument is weakened significantly,
however, by the empirical fact that, according to the Government, since 1968,
there have probably been no more than ‘10 to a dozen’ instances in which such a
foreign conviction has served as a predicate for a felon-in-possession
prosecution. . . . This empirical fact reinforces the likelihood that Congress,
at best, paid no attention to the matter.
|“. . . Given the reasons for disfavoring an inference of
extraterritorial coverage from a statute’s total silence and our initial
assumption against such coverage, we conclude that the phrase ‘convicted in
any court’ refers only to domestic courts, not to foreign courts.
Congress, of course, remains free to change this conclusion through statutory
amendment. (Emphasis added.)
|“For these reasons, the judgment of the Third Circuit is
reversed, and the case is remanded for further proceedings consistent with this
[The Chief Justice took no part in the decision of this case.]
[See the guest commentary by Les Field regarding
1/ Leiter Reports by Bryan Leiter. Leiterreports.typepad.com
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