After the Webinar: Constitutional Considerations in Criminal Procedure. Q&A with Dr. Jeff Fox

Webinar presenter Dr. Jeff Fox answered a number of your questions after his presentation, Constitutional Considerations in Criminal Procedure: Revisiting Our Old Friend the Constitution. Here are just a few of his responses.


Audience Question: What are your thoughts on HR 4639 the Fourth Amendment is Not For Sale, which expands prohibited disclosures of stored electronic communications under the Stored Communications Act? 

Dr. Jeff Fox:  Yeah, I am not prepared for that. I will tell you, not exactly in that same realm, but I will say I’ve struggled for a long time with the USA Patriot Act, and I’ve struggled for a long time with FISA, and I don’t want to get too deep into it, but and it’s a prime example of that safety and security versus freedom of liberty. You know there has to be that balancing act, and the government cannot abuse this power. It just can’t. I can’t say. Well, I know better than you, right? And that’s a fine line there. I’m afraid there’s been FISA abuses. And it just shouldn’t be allowed. I don’t want to get rid of it. But I think maybe there needs to be more oversight and more checks and balances. And then the whole idea of the exclusionary rule, while it kind of sucks having, it is important to have it. You know, we make mistakes, but if we purposely do something wrong then that exclusionary rule is there for a reason. If whoever had that question, if you email it to me and give me a little more, I’ll be glad to try to dig into a little bit deeper.


Audience Question: Do these constitutional rights apply to individuals who are on probation or parole? 

Dr. Jeff Fox:  Great question. Yes, and no right? You still have certain constitutional rights? But some of those rights are limited, or maybe restricted in some way and you could see this in other areas, too. If you do business with the government in certain areas you allow yourself to be opened up to be inspected right? If you run certain things like ABC or alcohol beverage control could come in and just do an inspection. If you drive certain vehicles down the road, you’re subject to being stopped and inspected just because of that. It doesn’t mean anything is wrong. But here you’ve done something wrong, you’re on probation or parole for some reason. And so, you have to look at each state. And there’s case law to cover those things. But there are limitations that could be put on a person because of that. But they’ve been found guilty. They’ve gone through the system, and there are checks and balances for that. But yeah, there are limitations or some big things without every single specific example. That’s about the best I can give on that.


Audience Question: Regarding failure to identify, frequently the question from law enforcement is, “What are you doing here?” Is that an okay alternative? When someone is perceived to be “suspicious”? 

Dr. Jeff Fox:  That’s a great question. I’m not a lawyer but I’m about to give you a lawyer answer. It depends on how you ask that. I think it’s a good question to ask. But how are you asking it? Did you stop them and ask them that? Because now, if you stopped them and asked them that, and you didn’t have a lawful right to stop them well, everything from there on out is not good, right? But if you had a right to stop them and ask them that there’s nothing wrong with that. You’re not asking them to identify themselves. But just think about this. Imagine being a person walking down the street in a subdivision. Maybe it’s a majority-white subdivision, and an officer pulls up and asks a young black man walking down the street, “What are you doing here?” Well, what right do you have to do that? What kind of assumption are you making? You probably are beginning to infringe on a constitutional right. Probably nothing else is going to happen to it because you didn’t take it any further. But look at the damage you’re doing here, because there’s something else here. It’s about the community, too. I think sometimes people know. Sometimes people don’t know because they don’t know the law or the Constitution. But sometimes I think we have this gut instinct like, you know what you really can’t do that. I’ll be honest with you. If I was walking in my subdivision and not bothering anybody as somebody pulled up and said, “What are you doing here?” I probably would say, well, “What right is it of you to ask me that? What am I doing wrong?” So, knowing my rights, I would probably get a little aggravated by that. So, it depends on the circumstances. Do you have a reason to ask that if you have a legitimate right to stop them? It’s okay to ask them that right? The four guys and the car wash. That’s kind of what I did right? I didn’t ask for ID. I just can’t walk over and say give me your ID. I saw crack cocaine out in the open. It was right there. So, it depends on the totality of circumstances. And it all depends, on whether it was consensual or not. Do you have any reasonable suspicion, or did you operate off of a hunch cause.? Remember, you can’t stop them based on that. So, all those things come into play. But that’s a good question to ask, short of asking for ID.


Audience Question: Sovereign citizens believe that the courts and law have no jurisdiction over people. How would you interact with a citizen claiming I’ve got no jurisdiction over them? 

Dr. Jeff Fox:  Yes, I’ve had that in a different way on a couple of occasions, and let me just say this, when I always dealt with citizens, I was always as nice as I could be. I was friendly and very pleasant. But once it got to the point where I couldn’t be as nice as I could be. I just became bland and matter of fact, I never got ugly. I never got rude. I never lowered myself to whatever it was they did, but I would get this from time to time. Some states don’t do this, but, Virginia, they do it. We allow for checking details where the police will set up a checkpoint and they check every vehicle. They’re looking for a driver’s license registration. They’ll pick every third vehicle, every fourth vehicle. And every once in a great while I would have somebody say, you don’t have a right to ask me that. Well, actually, you’re driving down a road, and you got to operate this vehicle, so, I do have a right to ask you that. They would take a sovereign citizen approach to it. But that’s where you have to have a legal right to be where you are, because if you don’t have a legal right to be doing what you’re doing then you better back up and go. Yeah, you know what they have a point. I don’t have any basis for this. If you have a basis for it, know what the law says, know what the statute says, know what the case law says, and go off of that. Try to de-escalate it. But let them know that we really don’t recognize sovereign citizenry. We’re all citizens. We’re all governed by the same laws. I want to protect your constitutional rights. I really can appreciate that. I want to protect your constitutional rights. That’s my job. I swore an oath to that. But given that, we operate from the confines of the law and the confines will all state this, and you got to be able to show it to them If you can’t show it to them, then you got to ask yourself, what am I doing here to begin with.


Audience Question: Does the Constitution apply to non-US citizens? And how about how we interact with other countries? 

Dr. Jeff Fox:  Great question. It depends on where it happens. If it is not on US soil, it doesn’t apply. If it’s a person on US soil, we allow them certain constitutional rights. But certain rights they’re not privy to. In other words, if you’re here illegally, then you’re here illegally, I’m completely for legal immigration. But if you’re here illegally, you could be deported. So, the whole idea of a life, liberty, pursuit of happiness, you really don’t have that unless you’re here legally so in a broad perspective. Yes. We do, generally speaking, we’re going to give non-US citizens those rights. We’re going to read them rights. We’re going to give them a right to a trial, and all the different things. Now, very interesting. I used to work near Northern Virginia, and it was a very diverse population up that way, and once in a while, a person from another country, especially toward the Middle East, would maybe get involved with shoplifting, which isn’t a major thing right? But the person would fight, tooth and nail like they’re like they were going to be executed. Well, you have to understand their culture. If you get caught shoplifting, you might get your hand cut off, so their reaction would be a lot different to somebody here because you’re not getting your hand cut off. But that person who got involved in shoplifting we’re going to afford them certain rights. I’m going to read her rights right? They’re going to have a right to bail on all that, to a degree. Right? So, in most ways, yes, is some limited ways, no.


Click Here to Watch a Recording of Constitutional Considerations in Criminal Procedure: Revisiting Our Old Friend the Constitution


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