Archive for the ‘Fourth Amendment’ Category

Let’s Make a New Law!

Thursday, October 24th, 2013

Any moderately well-informed person these days is aware of the shocking injustices that happen whenever criminal laws get written by people who don’t really understand what criminal law is, or how it works. (Brilliant summary here.) They tend to create crimes that are ill-defined, overbroad, and usually an overreaction to the perceived harm. The results can be pretty bad.

How much more cause for concern, then, when the proposed crime violates not only the fundamental principles of criminal jurisprudence, but cherished individual rights that have nothing to do with crime?

And how much more cause for concern, then, when those who catch potential problems are not engaged in thoughtful debate, but are instead shouted down and accused of malicious and reprehensible conduct?

It looks like that’s what’s been going on recently in an ongoing debate over proposed “Revenge Porn” legislation that’s floating around out there. At first the shenanigans were amusing to watch, but lately it’s turned into a distressing train wreck online. A law has been proposed in reaction to something with a lot of emotional pull, thoughtful people have voiced concerns that it may be a bad law, and its proponents have responded less with reasoned debate than with emotional backlash. Those who disagree are shouted down as stalkers and assholes; their comments are deleted so that others may not see them.

Ignoring whether either side is right or wrong, what a terrible blow this has been to the credibility of the law’s proponents. Think how insecure they must be in their own assertions to react so defensively. How much confidence can than inspire in the rest of us?

-=-=-=-=-

“Revenge Porn” is pretty much what it sounds like. You’re in a relationship with someone, they let you have some nude pix, then there’s a breakup and you feel bitter and to get back at them you post their nudes online for the world to see. It’s a nasty, cruel thing to do. It’s not hard to imagine society thinking the practice to be so bad that it deserves to be punished. It’s easy, in other words, to see Revenge Porn as something that might be criminalized.

Some law professors have been pushing a model statute that would criminalize the practice. So far, no big deal. This is something that law professors are expected to do.

None appear to be professors or practitioners of criminal law, though. That’s not encouraging. Those reviewing the language will therefore probably want to keep an extra-sharp lookout for things like imprecise (or missing) mens rea, over-inclusive definitions, and conflated or confused concepts, etc. Nothing personal, just a normal precaution. You get this stuff all the time.

An extra wrinkle comes from the fact that posting a nude picture of your ex counts as “speech” for First Amendment purposes. And the First Amendment doesn’t let the government criminalize speech, except in very tightly controlled circumstances. Even the most awful, painful, hurtful and distressing speech (such as that of the Westboro Baptist “Church”) is not something that gets criminalized in this country.

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This is a criminal law blog, not a First Amendment forum, and so it’d be somewhat off-topic to get into whether or not Revenge Porn is something that can be criminalized without running afoul of Freedom of Speech. But it is pertinent to note that the professors’ interpretation of the 1st Amendment here is not universal — and it is also relevant to examine how they have reacted to the ensuing disagreement.

To be fair, the law’s proponents are from academia, where disagreement (often) = bullying and criticism (sometimes) = hate speech. Where speech is generally not very well protected, in the first place. Where debate can be frowned upon and contrary points of view shouted down, removed from newspaper bins, at times even persecuted and hounded out. You ain’t seen petty vindictiveness until you’ve seen someone challenge the orthodoxy. You don’t get this from the better professoriate, of course — there are plenty of wonderful academics who welcome healthy debate, the chance to make their case or (as the case may be) get a new point of view. But there are plenty of others who prefer to point to their credentials and their peer-acceptance as proof of their correctness, and who get the most defensive when challenged.

You can usually tell which kind of academic you’re dealing with based on how they react to a contrary position. The ones who are pushing the Revenge Porn law, sadly, seem to be falling into the lesser camp so far. This is not good for their credibility.

So to the extent that First Amendment practitioners are in dispute with these particular academics, one might be inclined to conclude that the practitioners could perhaps be more likely to be correct.

-=-=-=-=-

But again, this is a criminal law blog. So how does the law look from the perspective of our criminal jurisprudence?

Not… not so great.

Here’s what the model statute says:

Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

(a) Definitions: For the purposes of this section,
1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.
3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.

(b) Exceptions:
1) This section shall not apply to lawful and common practices of law enforcement, the reporting of unlawful conduct, or legal proceedings.
2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.

…..

Holy cannoli, where to begin…?

The first problem is one of good old mens rea: It criminalizes disclosing the image without the subject’s consent, regardless of whether the actor knew about it one way or the other, or meant to do so without consent. It criminalizes the act where the subject had a reasonable expectation of privacy, regardless of whether the actor knew or had any reason to know it. The only mens rea here is whether the image was disclosed intentionally.

It’s a strict liability crime. Whenever you see that, huge red flags should be popping up in your head screaming “INJUSTICE AHEAD!” Sure it doesn’t criminalize accidentally dropping a photo out of your wallet, but it does criminalize showing it to people with the mistaken belief that your wife was cool with it — or without the knowledge that she had since changed her mind.

The second problem is one of conflated concepts. “Reasonable expectation of privacy” is a concept of Fourth Amendment law — of procedural rights, not of criminal liability. It is a term of art that has been defined in a fairly convoluted fashion over the years in such a way that the average layman couldn’t give you an accurate definition of the phrase if his life depended on it. His liberty would depend on it, here. The authors probably don’t mean for this phrase to have the meaning & baggage it carries in Fourth Amendment jurisprudence. They just think it sounds good. And so there is inherent confusion in the statutory language. It is not clear what is actually meant here. And where there is vagueness in criminal law, where there is room for interpretation, there is room for cops and prosecutors to screw over the regular Joe. And if you don’t think that happens, you’re not getting out enough. When you see conflated concepts and room for interpretation, those red flags ought to be screaming at you even louder.

The third problem is one of unclear writing. Seriously, what do the “consent” and “reasonable expectation of privacy” clauses modify? Does this refer to images that are disclosed without consent, or taken without consent? Does this refer to images that were disclosed under circumstances where someone had an expectation of privacy, or taken under such circumstances? Is it criminalizing pictures of sexual acts that were nonconsensual? What about images that were taken by someone else, and then given to you by your ex? What about images that someone else forwarded to you, or you found online, and had no way of knowing whether they were consensually/privately taken or disclosed (whichever verb applies)? It can be read all of these different ways.

There is literally no way of knowing for sure what conduct is criminalized here. As written, it outlaws all kinds of behavior its authors probably didn’t mean to punish. It is overbroad as hell. You hear those red flags? Since when do flags scream? These are. Get some earplugs.

Strictly from a criminal perspective, this is a god-awful statute. It’s another one of those “think of the children” “take back the night” “let’s name a statute after the victim” kinds of legislation that pave an eight-lane superhighway to hell with their good intentions.

-=-=-=-=-

You want a statute that works? (Again, ignoring any First Amendment concerns.) Here’s one I banged out in court this morning while waiting for a case to be called. Zero research or deep thought went into it:

…..

DEFINITIONS:

(A) “Private Sexual Image” = any media containing:

(i) an image taken in a non-public place, and in a non-commercial setting…

(ii) of a living person whose identity is readily ascertained from the contents of the image…

(iii) and depicting that person’s unclothed genitalia, buttocks, or female breasts, or depicting that person engaged in sexual intercourse, oral sex, manual-genital contact, or other such sexual behavior…

(iv) and which has not previously been “distributed” as that word is defined herein.

 

(B) “Distribute” = make publicly available by any means, including displaying in public or in a publicly-accessible medium, sharing via any communication or peer-to-peer arrangement, and any other method that makes a duplicate of the image available to others. Excluded are private acts of showing the image, without duplication or transmission, to individuals or small groups of people.

 

CRIMES:

Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person; and

(3) thereby does harass, shame or defame that other person

is guilty of a Fucking Nasty Crime.

 

Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person

is guilty of a Nasty Crime.

 

Any person who

(1) intentionally distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of another person;

(2) when he knows that, or recklessly disregards whether, he does so without the consent of that other person

is guilty of a Crime.

 

DEFENSES.

It shall be an affirmative defense to all of these crimes that, when the image in question was originally taken, it was reasonable to expect that it would later be viewed or possessed by people other than those who were a subject of the image, the person taking the image, and the person accused of distributing the image.

It shall be an affirmative defense to the Fucking Nasty crime that the image in question was transmitted to the accused via electronic or other means whereby the image could be “forwarded” or otherwise duplicated and transmitted to third parties.

…..

There, quick and easy. There’s probably stuff to fix in there, as well, and again who knows if it’d pass constitutional muster on other grounds, but it’s hardly as overbroad or prone to injustice as the one those professors are promoting.

I bet you can do it even better. You are cordially invited to tear my suggestion apart in the comments, and provide your own language. Have at it!

Q&A Dump

Friday, September 6th, 2013

I’m on the road today, but I wanted to post something. So I’m going to cheat and cut-and-paste some recent Q&A posts from my Tumblr. If you’re looking for a longer read, go check out my comic, which just completed a long section involving how the Fourth Amendment plays out during different kinds of car stops.

From today:

I don’t know all the facts, of course, and I’m not a Florida lawyer, but from what I’ve read it seems to me like the defense doesn’t have a winning argument here. It’s not unethical to make a losing argument, and lawyers often feel obligated to make every conceivable argument rather than lose an issue for appeal, or in the hope that something sticks — but it might be better to preserve your credibility with the court by choosing those arguments that at least have a teeny bit of merit.

“Stand your ground” laws say that, if you’re lawfully where you are, and someone is then and there about to kill or severely injure you, then even if you could have gotten away safely you’re allowed to use deadly force to defend yourself.

The “Bush Doctrine” is an application in international law of a basic principle of self-defense: you don’t have to wait for the other guy to hit you first before you defend yourself from the coming blow.

From what I understand of the Woodward case, he felt intimidated by these people, but was not in any immediate danger. Nobody was coming at him. Nobody was presently any threat to him.

Instead, he snuck up on a group of people at a barbecue, crawling on his belly to avoid detection. Then he fired a mess of rounds at them, hitting three and killing two. I don’t know what kind of weapon he had, but if the reported numbers of rounds are accurate, then he must have stopped to reload a few times.

This was not self-defense, because he was not in any actual danger at the time. At best, he was defending against some imagined possible future attack that might never have come. I get that he felt terribly harassed, but that’s not the same thing as an actual imminent attack. A hypothetical future attack is not an imminent one.

It was not stand your ground, because first of all he probably wasn’t lawfully there but was trespassing with intent to commit murder; and second of all because he wasn’t reacting to an attack.

The “Bush Doctrine” is just silly to cite, when there are plenty of self-defense cases to cite involving striking the first blow. But even there, the whole point is you’re about to get hit, and you’re defending yourself by making sure that blow doesn’t land on you.

From what I read, it looks like nothing less than cold-blooded premeditated murder, perhaps under great stress from a history of harassment, but in no way justified by it. Very similar to the “battered wife” scenario in my comic, actually.

—-

Just to make this long answer even longer, here are the playground rules I’ve drilled into my kids since they started school:

1. No matter how angry you get at someone, you’re not allowed to hit them.

2. If someone else is about to hurt you for real, first try to get away.

3. If you can’t get away, try to get a grownup to help you.

4. If you can’t get help, then I want you to hit first, I want you to hit hard, and you’re not allowed to stop hitting them until they can’t hit you any more. Let’s practice some moves.

I guess Woodward’s daddy never taught him that.

==========

From a couple of days ago:

This started out as an offshoot of my law blog, which has a similar disclaimer. It’s pretty standard for lawyers to state that their legal information isn’t legal advice, and just because you read it that doesn’t make you a client.

We’re all stating the obvious when we do that. (And no amount of disclaimer would help if a lawyer actually did give legal advice.) I imagine every lawyer cringes a bit as he types one out. Nobody in their right mind needs to have this explained.

But not everyone is in their right mind, sadly. You hear stories about how every now and then someone didn’t quite get the concept, which can turn into an unpleasant situation. So lawyers hope their disclaimers deter some of those people — and it’s nice to have something in black and white to point out to them.

It hasn’t happened to me, though. Not yet, anyway.

image

Or you could just… you know… try not to get arrested in the first place.

Read them, and not get arrested. Yeah. That might be better.

(Thanks, tho!)

==========

And from a couple days before that:

Yeah… well… not quite.

18 USC 241 & 242 aren’t really about unlawful search and seizure or other stuff dealt with by the exclusionary rule. They’re about police seriously abusing their power. 241 is about conspiring to injure or threaten or intimidate someone, to hinder their civil rights or to retaliate against exercising their rights. 242 is about abusing their power to actually deprive someone of their civil rights.

And the abuse of power has to be really severe. We’re talking about intentionally making up false evidence, intentional false arrests, sexual assaults, and severely excessive force.

What’s being deterred isn’t merely violating the Fourth or Fifth Amendments, but actual criminal conduct. This goes beyond even a civil rights lawsuit. These are not charges that you could bring yourself. They’d have to be filed by a prosecutor.

For a non-federal example of how states deal with it, here’s a story about a Mississippi sheriff who just got indicted the other day for similar conduct.

image

Thanks!

That’s really my purpose here — to dispel all the crazy myths and misinformation that are so prevalent out there, and present the straight facts in a format that’s easy for any high school student or adult to understand.

Not that I want anyone to think they have to accept how things really are. Maybe we ought to do some things differently. I like to think I’m helping people at least make informed arguments one way or the other (and I’ll be honest: I get a real thrill whenever I see people link to the comic in their online debates).

And I love getting messages like this. Totally makes my day. Thanks again!

This is FANTASTIC!

(Sounds like your kid has a great parent, by the way.)

Is Ray Kelly a Complete Idiot?

Monday, August 19th, 2013

As we all know, Judge Scheindlin ruled that the NYPD’s stop-and-frisk program was unconstitutional. This should have come as no surprise.

Our Fourth Amendment law forbids a police officer from stopping you without first having reasonable suspicion to believe that you are up to no good. Police officers were stopping people without any reason to believe they might be up to anything. That this was unconstitutional should surprise nobody.

Once you’ve been stopped, Fourth Amendment law forbids a police officer from frisking you without first having reasonable suspicion to believe that you are armed and dangerous. Police officers were frisking people without any reason to believe they might be armed. That this was unconstitutional should surprise nobody.

It is also unconstitutional for the government to single people out for this kind of treatment based on their race. Police officers were stopping and frisking Black and Hispanic people almost exclusively. On purpose. That this was unconstitutional should surprise nobody.

These were not the random errors of wayward officers, but institutionalized behavior directed and commanded by the police department. It was a program. That the NYPD has been given an injunction to knock it off should surprise nobody.

And yet Police Commissioner Ray Kelly has done nothing but act shocked and offended ever since.

Kelly made the rounds of TV news shows yesterday, angrily asserting Judge Scheindlin doesn’t know what she’s talking about, and claiming that this ruling is going to make violent crime go up. He argued firmly that the stop-and-frisk program is just good policing. It works. It’s effective. And now the NYPD can’t do it any more. It works. It’s effective. And so they should be allowed to keep doing it.

He firmly believes that, just because something is effective, the police should be allowed to do it.

This is the same guy who’s gunning for Secretary of Homeland Security. You thought you were living in a cyberpunk dystopia now? Just you wait until someone like him is in charge.

-=-=-=-=-

Forget whether he’s even correct that this is an effective policing strategy. (I already told you why it isn’t.) Let’s just, for the sake of argument, presume that stop-and-frisk actually worked to keep crime down.

That doesn’t mean the government should be allowed to do it. Effective does not mean constitutional.

The government is a mighty thing, with overwhelming power and force at its disposal. But one of the most beautiful things about America is that our government is constrained. It cannot use its might against you unless the Constitution says it can. There are plenty of things it might like to do, but it isn’t allowed to. (People being people, government folks will try to bend the rules or skirt them or even ignore them. Hoping nobody will notice, hoping nobody will say anything, hoping they’ll get away with it. Very often even believing they’re doing nothing wrong, and believing that in fact they’re doing the right thing. Still, the fact remains that they’re no allowed to do it.)

Of course there is a tradeoff. There’s always a tradeoff. If we gave the government unlimited power to snoop into our homes and search our persons, they would certainly catch a lot more criminals. If we took away the exclusionary rule and rules of evidence, they’d convict more of them, too. Ignore innocents wrongly convicted — let’s presume that the police would be inhumanly perfect about all this. It is a certainty that, without that pesky Bill of Rights, more wrongdoers would get punished, and more severely.

But we have decided that a lot of things are more important than catching and punishing criminals. Privacy is more important. Free will is more important. Fair hearings are more important. We as a society are willing to accept a certain level of crime — even violent and horrific crime — as a consequence of protecting these rights.

And so the government is forbidden from violating those rights, no matter how effective such a violation might be.

Kelly does not get this.

This is not rocket science. This is not obscure ivory-tower theory. This is a basic core principle every rookie police officer should know. Is Ray Kelly a complete idiot, here?

-=-=-=-=-

Kelly defends targeting Blacks and Hispanics because statistically, they commit a disproportionate amount of the crime in this city. And statistically, they do. But that doesn’t justify stopping individuals just because they happen to have been born into those groups.

Just as “effective” does not mean “constitutional,” the statistics of a general population don’t give you reason to stop that particular individual over there. His being Black does not give you reasonable suspicion. You need reasonable suspicion to believe that this guy is up to something. Ours is a system of individual justice. You need a reason to suspect this particular person, not a belief about people like him in general.

Again, this is stuff you learn your first week at the Police Academy. It’s pretty basic.

If the statistics showed that people of Italian descent committed a disproportionate amount of bribery, or that Jewish people committed a disproportionate number of frauds, would that give the police reason to target Italian or Jewish people just because of their heritage? Of course not. It would be as absurd as it would be abhorrent.

And yet that’s essentially what Kelly’s saying about the racial discrimination.

Does he not see how blatantly wrong this is?

Is he a complete idiot?

-=-=-=-=-

You sort of have to hope he is.

Because if he’s not an idiot, then he knows exactly what he’s saying. He knows exactly why he’s wrong. Not just intellectually wrong, but morally wrong and contrary to everything this country stands for. And he’s still saying it. Hoping to convince you he’s right. Hoping you’ll let him continue to have those powers.

Pray he’s only an idiot.

On the DEA’s Special Operations Division

Monday, August 5th, 2013

It should be clear by now that I’m no apologist for governmental overreach or law enforcement abuses. But after the news broke this morning about the DEA’s Special Operations Division, and everyone has been freaking out about yet another erosion of the Fourth Amendment, I feel like I ought to tone it down just a little bit. I have a little inside info here, because back in my days as a narcotics prosecutor, I dealt with them. (Don’t worry, I’m not going to divulge anything I shouldn’t.)

A lot of international drug trafficking takes place outside our borders, so the idea was to take advantage of intelligence data to make the drug war more effective. You just can’t use the intelligence  data in court. So SOD was formed as a way to make the information known, without compromising criminal investigations.

As reported, what the SOD does is get evidence from sources that can never see the light of day in court — usually from intelligence services here and abroad. Wiretaps conducted without regard to Title III because they’re not intended for criminal prosecution, top secret sources, and the like. If something comes up about some big drug trafficking — not at all uncommon to hear about in the intelligence world — then the SOD hears about it. Then they clue in law enforcement. It’s up to law enforcement to figure out how to gather the evidence legally. SOD’s involvement and its tips are rarely shared with prosecutors, and almost never with the defense or the courts.

So there’s a lot of understandable brouhaha that Obama’s eroding our privacy, the Fourth Amendment has been eroded even further, it’s unfair to the defense, this country’s going to hell in a handbasket, etc. People are concerned that law enforcement is “laundering” its evidence so it can use stuff that should have been inadmissible, and lying to everyone to cover it up.

First of all, this didn’t start on Obama’s watch. It got started under Clinton, back in ’94. And its existence has been fairly common knowledge in criminal law circles ever since. It’s even been reported on before.

Second of all, the whole “evidence laundering” thing isn’t quite accurate.

When I was dealing with them, back in the late ’90s and early ’00s, we in my office only half-jokingly called them “the dark side.” It was well understood that you couldn’t build a case off of their information. We’d never know where their information came from, for one thing. Without a source to put on the stand, the information couldn’t even be a brick in the wall of any case we wanted to construct.

And to be fair, the SOD folks themselves were very clear in their instructions: Their information was not to be used as evidence. It was only to help us figure out what we were looking at in an investigation, and let us know about other things we might want to be looking for. It was all along the lines of “how you gather your evidence is up to you, but you ought to know that this Carlos guy you’re looking at is part of a much larger organization, and his role is… and their shipment chain appears to have nodes here, here, and here… and your subject Gilberto over here is looking for a new local dealer.”

So what would you do? You’d realize Carlos wasn’t the top of the food chain, and start looking at your evidence in a different way, maybe change the focus of your investigation. And you’d pay more attention to traffic going to certain places. And you’d try to get an undercover introduced to Gilberto as his new dealer. You weren’t being spoon-fed evidence, but being clued in on where to look for it and what it might mean.

The Reuters article everyone’s citing quotes former DEA agent Finn Selander as saying “It’s just like laundering money — you work it backwards to make it clean,” in reference to a practice called “parallel construction.” He makes it sound like law enforcement obtained its trial evidence illegally, and then went back and tried to think up a way to make it look admissible. That would indeed be cause for much concern. And you’re kidding yourself if you don’t think that’s something police do on a daily basis.

But that’s not what “parallel construction” means. It means “dammit, I have this evidence that I cannot use. Is there another way to go get this evidence that is lawful? Why yes there is! Let me go do that now.”

So let’s say you know that a blue van with Florida plates XXX-XXXX will be going up I-95 this weekend, loaded with heroin in a variety of clever traps. But you can’t just pull it over because you can’t introduce that information in court for whatever reason. Instead, you follow it in a series of unmarked cars, until it makes a moving violation. Which is very likely to happen, no matter how careful the driver is (it’s practically impossible to travel very far without committing some moving violation or other). You now have a lawful basis to pull the van over. And a dog sniff doesn’t even count as a Fourth Amendment search, so out comes the convenient K-9. And tada! Instant lawful search and seizure, and the original reason why you were following him is not only unnecessary but irrelevant.

It doesn’t matter if the original reason you wanted to pull the van over came from the dark side or from an anonymous tip or from a hunch. It’s a legal stop, and the original reason doesn’t matter. This is a very common scenario in day-to-day law enforcement, and isn’t specific to the SOD.

Or think of this equally very common scenario: Someone inside an organization has given you probable cause to go up on a wire and to arrest a lot of people. But you don’t want that person’s identity to ever come out, or even raise any suspicion that there was ever an inside informant. So you get that guy to introduce an undercover. Who maybe introduces yet another undercover. And you only use information that the undercovers themselves develop to build your probable cause and build your case. The original informant’s identity need never be disclosed.

Those examples are parallel construction. It’s not about going back and laundering your evidence. It’s about going forward to gather it lawfully this time.

I’m not saying the dark side isn’t cause for concern. Law enforcement and intelligence are supposed to be two entirely different things. We have given the government amazing intelligence-gathering powers on the understanding that it won’t be used against our own citizens, and won’t be used for law enforcement. A very good argument can be made that the SOD program subverts that super-important limitation on government power.

But it’s harder to argue that it violates the Fourth Amendment or gets evidence in court that should have been inadmissible.

If you’re gonna complain about it, at least complain for the right reason.

No, that’s not what the Fifth Circuit said.

Wednesday, July 31st, 2013

The internet is abuzz over yesterday’s Fifth Circuit decision on cell-site data. And hardly anyone seems to know what they’re talking about, as usual.

It’s to be expected when sources like Wired say “cops can track cellphones without warrants, appeals court rules.” Which is not what the court ruled at all. After all, you can’t expect tech zines to be accurate on the law. And it’s to be expected when tons of people get all upset on sites like Reddit, because they only saw the inaccurate headlines and are now freaking out about something that never happened. But when the usually responsible New York Times jumps in with “warrantless cellphone tracking is upheld,” it might be time to get concerned.

Yes, there is a lot of concern these days with government access of our data. A lot of that concern is legitimate, and a lot is misplaced, but the fact that the conversation is even happening is a wonderful thing. Except the conversation is downright counterproductive when nobody knows what they’re talking about. And such lazy (or deceitful?) reporting isn’t doing anyone any good.

Here’s what the court said, in a nutshell:

1) The government wanted to get historical data of cell sites that were used by certain phones. Not real-time data. Not tracking.

2) Existing law says this is allowed when the government can provide specific and articulable facts that make it reasonable to conclude that the data will be relevant and material to an ongoing criminal investigation.

3) The government did exactly that.

4) The lower court screwed up, and applied the rule for getting real-time data. The lower court needs to do it over again. Period.

All the court did was apply existing law, correctly.

What the ACLU and EFF and others wanted, however, was for the court to break new ground, and create a new legal standard. I am in favor of such things — a court’s not going to do that unless you ask, and I encourage making such arguments at every meaningful opportunity. But this court said it wasn’t going to touch that issue with a ten foot pole. (It did suggest going to Congress, to change the law. Congress passed the statute that enables such requests of phone companies, and right now the statute simply tracks existing Fourth Amendment jurisprudence. But the statute could always impose greater burdens on the government than are required by the Fourth Amendment. The Constitution is a floor, not a ceiling, after all. So why not lobby Congress to amend the relevant statute?)

Or they could, you know, take it up with the Supreme Court and ask them to change their mind on what’s reasonable under the Fourth Amendment.

The problem, of course, is that the existing rule fits neatly within the general principles of how the Fourth Amendment works.

Basically, the Fourth Amendment comes into play when the government intrudes on something that you would reasonably expect to be private. They’re allowed to do it when they have a warrant based on probable cause to believe they’ll find evidence of a crime or catch a criminal. And they’re also allowed to do it without a warrant if it’s reasonable to let the government do so — when your privacy interests are outweighed by some other concern like public safety.

So the first issue is whether historical cell-site data is something you would reasonably expect to be private. The ACLU and EFF and others say it is. The government says it isn’t. And existing law says that it isn’t. This is the new ground that the court was being asked to break.

Cell site data is not something that you create. The government isn’t going into your phone or your computer to access the data. It’s not yours. Instead, it is a record kept by your phone company. They create the data, and they retain the data.

Cell site data does not contain the contents of your communications. What you’re saying and texting and emailing and posting are not being accessed. It only says what cell tower your phone was using at the time. Which can give a general idea of where your phone was at the time.

Historical cell site data does not tell the government where your phone is right now. It’s not a tracking device. It’s not real time. It just lists the towers your phone was using back then.

This cell site data is created by the business, not by you. And it’s about a transaction which that business engaged in. It’s not just about you. It’s a record of its interaction with your phone. It’s nothing more or less than a routine business record, of the business’s own activity, kept in the ordinary and regular course of business. It’s not about you.

And the government did not compel the business to collect that data.

So when the government goes to the business and says “give us those business records,” it is not so much your privacy that’s being invaded as it is the business’s privacy. The act of getting the data, the act itself, does not require any intrusion into your own privacy. They’re not going into your phone or home or computer to get it.

And the data itself is not something that’s yours to claim as your own private information. You didn’t create it, you didn’t keep it.

But the law does recognize that you do have some expectation of privacy here. Just not anywhere near as much as if you were the one who created or kept the data. So the government has to make some showing that it’s actually relevant to an actual criminal investigation. They just don’t have to show there’s probable cause to believe they’ll get evidence of a crime. It’s a similar standard as for getting a pen register — real-time data of the numbers you’re calling, without overhearing the contents of the communications.

Also, stepping away from your interests for a moment: We don’t want law enforcement* just randomly poking through records for no reason, hoping to chance on evidence of a crime — the Fourth Amendment hates it when that happens. It’s not about your privacy, but everyone’s. So they can’t demand records in bulk. They have to be records of a specific phone, that they have specific reason to believe will be useful. It’s arguable that this consideration is even more important than your privacy interests, when it comes to setting the standard the government has to meet.

In the end, the law just isn’t on the ACLU & EFF’s side right now. They need to change the law, if they want the government to have to jump through the probable cause hoop here. They made a game effort of asking the Fifth Circuit to take the plunge, but the Circuit punted (I love mixing metaphors, don’t you judge me). They can lobby Congress to increase the government’s burden, and whip up public support for it (which is entirely possible), or they can try to get the Supreme Court to reinterpret the Fourth Amendment here (yeah, good luck with that).

But this decision broke no new ground. It did not give law enforcement new powers. It did not undermine the Fourth Amendment.

Please, if you’re going to get up in arms about it, do so for the right reasons. Not because you didn’t understand what happened in the first place. And don’t misrepresent what happened to try to foment misinformed popular outcry.

I’m looking at you, New York Times.

*Not the same as national security or intelligence, by the way, but that’s a whole nother discussion.

Ray Kelly on Stop-and-Frisk: You saved HOW many lives?

Tuesday, July 23rd, 2013

NYC’s Police Commissioner Ray Kelly wrote a piece for today’s WSJ titled “The NYPD: Guilty of Saving 7,383 Lives” and subtitled “Accusations of racial profiling ignore the fact that violent crime overwhelmingly occurs in minority neighborhoods.” In it, he makes a great case for the fact that his cherished stop-and-frisk program is not effective policing, and may in fact lead to more crime.

That’s not his intent, of course. His purpose is to defend the NYPD’s much-maligned stop-and-frisk program (and also its surveillance of political dissidents). He doesn’t succeed. In fact, he does a great job of discrediting himself right off the bat. Which is a shame, because he makes it too easy to roll your eyes at him, and that would be a mistake. This stuff demands serious discussion.

He starts off with a burst of illogic and bad math, to wit:

(A) During the 11 years Bloomberg’s been mayor, unspecified tens of thousands of weapons have been seized by the police;
and
(B) During those same 11 years, there were 7,383 fewer murders than in the preceding 11 years [though he cites 13,212 and 5,849 as the figures, so the actual difference would be 7,363];
therefore
(C) The NYPD has saved 7,383 lives.

Uh huh. Right.

Well, he IS right that crime is way down. A careful statistician might even observe that crime in this city is way WAY down. And this is a good thing.

But to what extent is it a result of the police seizing all those weapons? (And how many weapons did they seize in the 11 years before Bloomberg? He doesn’t say.) In fact, to what extent is the drop in crime the result of policing policies at all? Most research I’ve read seems to support demographic shifts and maturing community attitudes as its primary causes.

Kelly makes this “we saved lives” point in order to justify the NYPD’s stop-and-frisk program. He makes other arguments, too. Taken together, his arguments all boil down to “it works, therefore it’s justified.”

No. Wrong.

Just because something works, that doesn’t make it right. Or even legal. Just think of the atrocities the State could commit if mere effectiveness was all the justification it needed. Better yet, don’t think of them. I don’t want to give you nightmares.

But put that aside for now. Is he even right to claim that it’s working, in the first place?

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It is silly to deny that good policing can affect crime rates. When the police are effective — when criminals stand a good chance of being caught and punished — then that effectiveness serves as a deterrent. People who otherwise might have committed a crime are more likely to think twice about it.

Then again, we are talking about violent crime, here. How much violent crime is even capable of being deterred? Most assaults and murders are unplanned, spur-of-the-emotions stuff. The odds of being caught and punished aren’t exactly being weighed. Even an effective police force will have an iffy deterrent effect there, at best.

But that’s not what stop-and-frisk is about. And it’s not really about getting weapons off the streets, either.

Stop-and-frisk is about making the risky people take their risky behavior somewhere else.

The NYPD is doing it because they think it will work. That it has worked. That it is working.

And they are wrong.

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First things first: It is (more…)

Hey feds, get off of my cloud (Followup)

Tuesday, May 17th, 2011

Last month, we posted on the senate hearings on whether the feds need to get a warrant before getting emails and other stuff stored in the cloud.  The Obama administration would rather let the feds continue to get such stuff without bothering to get a warrant, as they now can do under (very outdated) current law.  As we put it:

As the law currently stands, if an email is more than 180 days old, the feds are allowed to snag it without a warrant, under the 1986 Electronic Communications Privacy Act.  In yet another bit of Orwellian fractal weirdness, the ECPA was designed to ensure that online communications had just as much privacy protection as anything in the offline world.  (Given the erosion of Fourth Amendment protections in the brick-and-mortar world, a cynic might be tempted to crack that the ECPA has lived up to its expectations.)

And we quoted Sen. Patrick Leahy, who last year argued to drag law enforcement and the Fourth Amendment into the modern era:

Today, ECPA is a law that is often hampered by conflicting privacy standards that create uncertainty and confusion for law enforcement, the business community and American consumers.

For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending on where it is stored, and when it is sent. There are also no clear standards under that law for how and under what circumstances the Government can access cell phone, or other mobile location information when investigating crime or national security matters. In addition, the growing popularity of social networking sites, such as Facebook and MySpace, present new privacy challenges that were not envisioned when ECPA was passed.

Simply put, the times have changed, and so ECPA must be updated to keep up with the times.

Well, today Sen. Leahy proposed a new bill that might do just that.  The bill (pdf here) would get rid of that 180-day loophole, and require the feds to get a warrant no matter how old the email or data might be.

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Obviously, we’re in favor of that.  But this bill goes farther than that.  If adopted, this bill would also:

  1. Prohibit cloud services from knowingly (more…)

Supremes Adopt and Define New “Police-Created Emergency” Doctrine

Monday, May 16th, 2011

Interesting Fourth Amendment decision from the Supreme Court this morning, in a case which at first glance didn’t seem all that cert-worthy.  The facts are as run-of-the-mill as they come — an undercover buy-and-bust, the dealer ran into a building, arrest team followed in just as one of the doors slammed shut but couldn’t tell which of 2 apartments the guy went into, from the hallway they smelled dank weed burning, the smell was stronger by the apartment on the left, the cops banged on the door and announced themselves, the cops heard stuff being moved around inside and figured it was evidence being destroyed, the cops burst in and found significant amounts of pot and cocaine.

The first time we read the facts in this case, we couldn’t help wondering “seriously, what’s the problem here?”  We’re well aware that the cops’ story might not be entirely truthful, but on the facts as given there just didn’t seem to be grounds for suppression.  The cops are allowed to pursue a suspect into the hallway of an apartment building (here it was a breezeway, arguably even less private).  The cops were entitled to bang on the door that smelled of burning marijuana.  There’s no Fourth Amendment prohibition against the police banging on your door and shouting “police police police.”  On hearing sounds consistent with destruction of evidence, it’s pretty well settled that an exigency now existed.  That’s one of the dozen or so exceptions where society’s interest in something (here, preservation of evidence) trumps the right against warrantless searches.  So seriously, what was the problem?

The problem was that the police arguably created the exigency themselves.  If they hadn’t banged on the door and announced their presence, there wouldn’t have been any evidence-destruction sounds.  Can the police manufacture an exception to the warrant requirement, one that would not have existed otherwise, and then rely on that exception to conduct a warrantless search?

Ah, now it gets interesting.

Writing for an 8-1 majority in Kentucky v. King, Justice Alito neatly described (more…)

What’s the remedy for blatant wiretapping violations by the feds? Finger-wagging, sure. But suppression? No way.

Thursday, April 21st, 2011

 

Wiretaps are arguably the greatest invasion of privacy that the government can do.  They’re listening in on private conversations, not intended to be overheard by anyone else.  So to get a wiretapping warrant, the government has to do more than for a normal search warrant.  There has to be more than just probable cause that they’re likely to find evidence of a crime.  Only certain crimes count.  There has to be good reason to do a wiretap as opposed to some other less-invasive investigative technique.  Only particular conversations can be sought, over particular phones.  Etc. etc. etc.

Not only is there a heavier burden to meet before a wire can be granted, the government has to comply with some very strict rules as they carry out the eavesdropping.  On that issue of particular conversations, for example, they have to do what they can to minimize the amount of non-relevant or privileged conversations that get listened to.  This is called “minimization.”  When it appears that a call isn’t pertinent (i.e., it isn’t evidence of a crime), or that it’s privileged (as a call with one’s attorney, doctor or spouse), then they have to stop listening and recording.  The call gets “minimized.”

The cops or agents who are monitoring the wire have to do more than just act in good faith.  Their minimization has to be objectively reasonable — the law only cares what an ordinarily reasonable person have thought in the circumstances, not what the cop himself happened to think.  So a properly-run wire is going to have minimization procedures that are spelled out at the beginning of the investigation, in writing, signed by every agent before they get to monitor any calls, with a reference copy there at the monitoring location just in case there are any questions later.  The prosecutor is going to be involved throughout, and it’s really the prosecutor’s responsibility to make sure that everyone knows what they can and cannot do.  It’s also the prosecutor’s job to review all the calls that were intercepted and, among other things, make sure that the cops are minimizing properly.

But what happens if the government doesn’t do that?  What happens if oblivious or malicious agents record and listen to all kinds of personal calls that have nothing to do with the crime they’re investigating?  What happens if a lazy or inexperienced prosecutor fails to nip it in the bud, or if a malicious prosecutor allows it to keep happening?

It’s an important issue these days, because the feds have been doing exactly that.

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As we’ve pointed out a few times, the feds have been all gung-ho for doing wires on white-collar stuff these days, but the white-collar teams aren’t exactly the most experienced at doing wiretaps properly.  For one thing, the feds hardly (more…)

Hey, feds, get off of my cloud

Friday, April 8th, 2011

Our jury’s still out, and there’s so much stuff to catch up on.  There’s the 5th Circuit’s denial of Jeff Skilling’s appeal, even though the Supreme Court had struck down the “honest services fraud” charge last summer.  We were so ready to write something about it yesterday, but work intervened, and now we’re not in the mood.  Maybe this weekend.

Instead, we’re all intrigued about the Senate hearings earlier this week on whether federal law enforcement ought to get a warrant before doing any search and seizure out there in the cloud.  Apparently, the Obama administration says the warrant requirement is just too much of a hassle.

The term “cloud computing” covers a lot of things, but for these purposes we’re talking about people storing data not on their own hard drives, but out there somewhere in the ether of the internet.  Of course, “out there somewhere” means “stored on someone else’s servers.”  Which means it’s there for the taking (or destruction) if those remote servers were to be compromised.  And of course, that means it’s out there for the seeing if law enforcement decides to go poking around in the cloud.

As the law currently stands, if an email is more than 180 days old, the feds are allowed to snag it without a warrant, under the 1986 Electronic Communications Privacy Act.  In yet another bit of Orwellian fractal weirdness, the ECPA was designed to ensure that online communications had just as much privacy protection as anything in the offline world.  (Given the erosion of Fourth Amendment protections in the brick-and-mortar world, a cynic might be tempted to crack that the ECPA has lived up to its expectations.)

As Vermont senator Patrick Leahy put it last September, when the Senate first starting considering changes to the ECPA, the statute

was a careful, bipartisan law designed in part to protect electronic communications from real-time monitoring or interception by the Government, as emails were being delivered and from searches when these communications were stored electronically. At the time, ECPA was a cutting-edge piece of legislation. But, the many advances in communication technologies since have outpaced the privacy protections that Congress put in place.

Today, ECPA is a law that is often hampered by conflicting privacy standards that create uncertainty and confusion for law enforcement, the business community and American consumers.

For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending on where it is stored, and when it is sent. There are also no clear standards under that law for how and under what circumstances the Government can access cell phone, or other mobile location information when investigating crime or national security matters. In addition, the growing popularity of social networking sites, such as Facebook and MySpace, present new privacy challenges that were not envisioned when ECPA was passed.

Simply put, the times have changed, and so ECPA must be updated to keep up with the times

Think of it this way:  You’re storing your emails on a third party’s servers.  Isn’t there some lessening of your privacy expectations in that situation?  And on top of that, until maybe six or seven years ago, it wasn’t that outrageous to deem emails left on a third party’s servers for more than six months — instead of storing them to one’s own hard drive or local server for preservation — to be “abandoned.”  AOL users lost their emails after just a month or so.  If you didn’t actively save it to your hard drive, you didn’t want it.  (Forget, of course, the user’s reasonable expectation that the email would no longer exist in the first place.  Do not waste brain cells wondering whether one can abandon something that one believes to have already been destroyed.)

The point is, the law sort of made sense back in the 80s.  And it still kinda made sense when Google was new and Facebook was still in the future.

But now, things have changed.  In ways that are both dramatic and obvious to anyone who might be reading this post.  Now, by default, the vast majority of users do not store their emails locally (if they even know how to do so).  Emails are almost always accessed through a third party’s servers.  Almost nobody downloads their emails — and even if they do, the original remains on the server.

The vast majority of users expect that their emails, protected by their usernames and passwords, will remain private.  Even though the emails are stored out there in the cloud, the ordinary reasonable expectation is that they are private.

As we all know, the Fourth Amendment prohibits the search and seizure of stuff where there is a reasonable expectation of privacy, unless law enforcement gets a warrant based on a showing of probable cause to believe that particular evidence of a particular crime will be discovered by the search.  (For those of you desiring a quick primer on the various exceptions that apply, you can certainly do worse than to listen to N. Burney and G. Mehler’s brilliant CLE lecture, “Search and Seizure in 60 Minutes“)

The exceptions to the Fourth Amendment essentially boil down to situations where the evidence would cease to exist if a warrant were sought, or there’s some other thing we want the police to be able to do (such as make sure people are safe) that might be deterred if they weren’t allowed to use evidence observed in the process.  None of the exceptions are based on a policy of “we probably wouldn’t have probable cause to search in the first place.”

But that is precisely the policy offered by the Obama administration this week.  We kid you not.  Here’s associate deputy attorney general James A. Baker, testifying on why the administration doesn’t want to have to get a warrant to search the cloud:

In order to obtain a search warrant for a particular e-mail account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account. In some cases, this link can be hard to establish.

And if they aren’t allowed to search in cases where they cannot establish probable cause in the first place?  The consequences would be dire, he (more…)

White-Collar Wiretaps

Friday, December 17th, 2010

This’ll be quick, because we’re pretty busy working on a wiretap case, which is always time-consuming if done right.  But as our mind’s on that topic anyway, we thought we’d quickly point out that the latest round of insider-trading cases is again largely derived from wiretaps.  Here’s a roundup over at the WSJ’s law blog.

We just wanted to jump in and point out that just because there were wiretaps, by no stretch of the imagination does that mean the case is a slam dunk.  There are all kinds of ways that agents and prosecutors can and do screw up wire cases.  If properly challenged, the recordings and all evidence gotten as a result of them can get thrown out, which pretty much kills the case.  Don’t go saying this can’t happen, because we happen to see it plenty.  (The one we’re working on right now is a prime example of how not to conduct a wiretap investigation, for example.)

But even if the evidence doesn’t get suppressed, that doesn’t mean it can’t be successfully attacked at trial.  Cross-examining taped evidence isn’t the easiest skill to master, but it’s definitely doable.

If you’re really interested, you can go take our CLE lecture on how to defend these kinds of cases over at West Legal Ed Center (shameless plug).  Or if you prefer, here’s a quick cut-and-paste from a longer post we put up the first time this happened, when the Galleon case broke (original post here):

Wiretap evidence is anything but a sure thing. We know. We did wires for years in the Rackets Bureau of the Manhattan DA’s office, and now we defend them. We’ve taught a nationwide CLE on how to successfully defend them for West LegalEdCenter. Wiretaps are not a sure thing.

They can be defeated with technicalities. Eavesdropping is probably the greatest invasion of privacy that the government can inflict, and so we make law enforcement jump through all kinds of hoops before they are allowed to get an eavesdropping warrant. There are so many i’s to dot and t’s to cross, that the feds hardly use wiretaps in the first place. You’d think otherwise, but (more…)

Police Allowed Into Home, Shoot Dog and Unarmed Suspect

Thursday, October 14th, 2010

When the police ask if they can come in, SAY NO.  It doesn’t always end as badly as this, but it almost always ends badly.

When the police (or investigators from a regulatory agency, or any enforcement types) ask you questions, SAY NOTHING.  You don’t have to talk to them, and it can end badly.

If the cops are getting physical, DON’T FIGHT THEM.  You will always lose, and it’s just something else to charge you with.

Not blaming the victim here, but don’t let it happen to you.

For more useful advice — for law-abiding citizens just as much if not more than others — see this fine video called 10 Rules for Dealing with Police:

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Credit goes to the partner, btw, who’s probably looking at a helluva lot of harassment for breaking the wall of silence.  Breaking the golden rule that Thou Shalt Not Speak Ill Of Another Cop is not a career-advancing move.

Tape Away – Maryland judge rules that cops have no expectation of privacy during traffic stops

Tuesday, September 28th, 2010

You’ve probably all seen the video by now of the motorcyclist recording himself speeding down a Maryland road, only to get pulled over by a plainclothes cop who leaps out brandishing a gun and otherwise behaving inappropriately.  And you’ve probably heard how the motorcyclist is now facing trial on charges of illegal wiretapping, for the recording of the officer.

The case has become the most visible in a rising tide of police backlash against citizens videotaping them while they abuse their authority.  We wrote on this (and the reasons why the police are losing respect) here.

Well now Judge Emory Pitt has thrown out the charges against the motorcyclist, ruling that police and others who exercise their authority in public “should not expect our actions to be shielded from public observation.”  You can read the Baltimore Sun article here.

Although this isn’t controlling precedent for any other courthouse, the ruling makes perfect sense. A police officer — or anyone else, for that matter, who is doing something in the open in as public a place as a freeway — would be an idiot not to expect that others are going to see what he’s doing. If it’s freely observable by the general public, then what possible expectation can there be that it’s private?

The same goes for cops who get taped beating people in a plaza, tasing people in an auditorium, or even just being dicks at a demonstration. The public is watching. So there’s no reason why the rest of the public shouldn’t be allowed to see it as well.

As Balthasar Gracián wrote in 1647, “always behave as though others were watching.” Good advice. Perhaps soon the police will begin taking it to heart.

Taking DNA Samples at Arrest? Not a Problem.

Wednesday, August 4th, 2010

dna

On May 8, 2005, we were having a party.  It was our birthday, and our firstborn had just turned 1 a few days before, so it called for a big celebration with friends and family.  For us, it was a time of new beginnings.  But for Jerry Hobbs, May 8 2005 was the end.  He found his 8-year-old daughter and her 9-year-old friend brutally stabbed to death, in a park in Zion, Illinois.  He immediately called the police, who immediately made him their number-one suspect.  He’d just gotten out of jail in Texas, after all, so why investigate further?  He was subjected to a long, intense interrogation, and eventually made a statement that sounded like a confession.  He recanted the statement, saying it was coerced, but that didn’t matter, and he was charged with the murders.

Shortly after his interrogation, the police found DNA on the girls’ bodies that didn’t match Hobbs.  The DA discounted it, saying it must have been cross-contamination and couldn’t have been relevant to the crime.  But the DNA was in semen found on the girls’ bodies — and inside one girl’s vagina — and that’s not cross-contamination.  The DA insisted that it was still irrelevant, and that the semen must have been on the ground before the attack.  Seriously.  Hobbs remained in custody, charged with the double murder, for more than five years, though his case never went to trial.

He was in jail until a couple of hours ago, that is.  As it happens, that DNA on the girls’ bodies was extremely relevant.  Jorge Torrez, who had lived in Zion at the time, was arrested in Arlington, Virginia a few months back, and charged with the abduction and repeated rape of one woman as well as attacking another woman.  Virginia, unlike Illinois, takes DNA samples along with fingerprints when someone is arrested.  The DNA taken at Torrez’s arrest went into the database, and popped up as a match to the DNA found on the girls.  The Illinois prosecutors dithered for weeks, but this morning they finally released Hobbs from prison (though they refused to issue an apology, insisting they and the police had done everything right).  Still, an innocent man went free at last.

And if Torrez’s DNA had not been swabbed on arrest?  Hobbes’ coerced, false confession might well have resulted in yet another wrongful conviction.

This raises a lot of issues.  There’s the misuse of DNA evidence, and there’s the false confession, but those are topics for another time.  (If you’re interested in learning ways to defend such cases, you can check out our “Hope for Hopeless Cases” CLE series, particularly lectures IV and V.)

Today, however, our beef is with the civil liberties argument against taking DNA samples at arrest.

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The argument is that people who haven’t yet been convicted of a crime should not be compelled to give DNA samples.  It smacks of “Big Brother” and “Minority Report.”  The government might conceivably (more…)

Will New York Get a New Emergency Exception?

Thursday, July 15th, 2010

Medium_Velocity_Impact_Spatter

The police need a warrant to search your home.  Except when they don’t.  The warrant requirement of the Fourth Amendment is there to protect your privacy, and sorry, but sometimes your privacy isn’t the most important thing at the moment.

One exception to the warrant requirement is the Emergency Exception.  In a nutshell, it says the police are allowed to go into your home without a warrant when there is good reason to believe that someone inside is seriously hurt, or in danger, and needs their assistance right away.

Different states define the rule in different ways.  In New York, the rule was set in 1976 in the Mitchell case.  Mitchell has two objective conditions, and one subjective condition.  If all three are met, then the police are allowed to go in without a warrant.

Objectively, the circumstances have to be such that a reasonably prudent officer would have thought there was an emergency at the time.  Objectively, the officers on the scene had to have probable cause to believe that there was an emergency inside the house.

Subjectively, the officers had to actually be going inside to help.  They couldn’t be using the emergency as a pretext to really look for drugs, for example.

So far, so good.  Sort of.

One problem is that there is no requirement here that the police actually believe there is an emergency.  There is no subjective requirement that the police on the scene be aware of the circumstances that would lead a reasonable person to think there was an emergency.  There is no subjective requirement that the police on the scene actually think there’s an emergency.

That’s not a huge problem under the Mitchell rule, because the no-pretext prong sort of implies that the police need to subjectively believe there’s an emergency.

But what happens if you take away that no-pretext prong?  You get an absurd rule.  Police who did not themselves believe there was any emergency could still go in without a warrant — and hope that some clever prosecutor down the road can come up with a scenario where an objective cop, aware of all the circumstances that the police themselves might not have been aware of, might have thought there was an emergency.  And if you think no New York police officer would break down your door in the hopes that it can get justified down the line (if your case even gets that far)… well, the word “naive” springs to mind.

Well, guess what?  Back in 2006, in its Brigham City decision, the U.S. Supreme Court specifically rejected the no-pretext prong of the Mitchell rule.  The Court was being true to its 15-year trend of rejecting subjective rules in federal Fourth Amendment law.  The Supreme Court line of cases does not care whether the police had some pretext or ulterior motive.  So long as there was some legitimate basis for the police conduct, they don’t really care what the police themselves were thinking.

But New York hasn’t had to deal with the issue though.  Not, that is, until a case we argued earlier this year.  

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This January, we found ourselves before the Second Department one month after the Supreme Court had reaffirmed (more…)