Posts Tagged ‘Fourth Amendment’

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.

Gawker Gets It Wrong

Tuesday, April 27th, 2010

gizmodo

As everyone reading this is probably aware, last Monday the website Gizmodo announced an exclusive look at Apple’s iPhone 4, which hasn’t been officially released yet. In their post (here), they said “you are looking at Apple’s next iPhone. It was found lost in a bar in Redwood City, camouflaged to look like an iPhone 3GS. We got it. We disassembled it. It’s the real thing, and here are all the details.” The post was written by blogger Jason Chen, and featured video of him showing details of the phone, and a lot of photos.

As time went on (see all the posts here), it came out that Gizmodo had paid $5,000 for the phone. The guy they bought it from wasn’t the phone’s owner, but had merely found it in a beer garden back in March. An Apple employee had lost it there.

So, if they bought it from someone who wasn’t the owner, and they knew it was supposed to be a secret, did the folks at Gizmodo commit any crimes here?

Law enforcement got involved very fast. By Friday, law enforcement in San Mateo had gotten a search warrant (viewable here) to seize Jason Chen’s computers, disks, drives, and any records pertaining to the Apple prototype 4G iPhone.

The search warrant was executed that same day, and a bunch of computer stuff was seized (the inventory is also viewable here).

Yesterday, the chief deputy district attorney for San Mateo County told the WSJ’s “Digits” blog (here) that nobody’s saying a crime happened or not. They’re still investigating.

Meanwhile, however, Gawker Media (the owner of Gizmodo) issued a letter on Saturday (viewable here) stating that “under both state and federal law, a search warrant may not be validly issued to confiscate the property of a journalist.”

In support of that statement, Gawker Media cited California Penal Code §1524(g) (viewable here), which prohibits search warrants for items described in Evidence Code §1070.

Evidence Code §1070 (here) says a judge can’t hold a journalist in contempt for refusing to disclose his sources, or for refusing to disclose unpublished information gotten while preparing a story.

So we have to ask, does Gawker Media know what it’s even talking about?

-=-=-=-=-

There’s a big difference between a search warrant and (more…)

A New Emergency Exception for New York?

Wednesday, January 20th, 2010

 

The Fourth Amendment says the police can’t go into your home or other private place without a warrant. Over the years, we’ve come up with a lot of exceptions to the warrant requirement. So many, in fact, that getting a warrant has become the exception, and the exceptions have become the norm.

That’s because privacy isn’t the only interest society has here. The various exceptions to the warrant requirement allow the police to go in when other important interests outweigh the privacy interest.

One common exception to the warrant requirement is the Emergency exception. Under the emergency rule, the police can go in when there is good reason to believe there’s someone inside who needs help right away — either they’re seriously hurt, or they’re in danger.

In New York, that rule was formalized by the Mitchell case in 1976. The Mitchell rule has two objective conditions, and one subjective condition. If all three are met, then the police would be allowed to enter under the emergency rule. The objective conditions require that a reasonably prudent officer would first have thought there was an emergency, and second would have had probable cause to believe the emergency was inside the place to be searched. The subjective condition was that the police had to actually be going inside to help someone — the emergency couldn’t be a pretext for some other ulterior motive such as looking for evidence.

For about 15 years, now, the U.S. Supreme Court has been rejecting subjective rules like that. So far as federal law is concerned, the Supremes don’t care if the police had some ulterior motive or pretext. So long as there was a legitimate basis for the police conduct, they don’t care what the police were actually thinking.

So in 2006, in the Brigham City case, the Supreme Court specifically addressed the three-part Mitchell rule, and said New York’s subjective condition is not required under federal law. All federal law requires is that the police had an objectively reasonable basis to believe that there was an emergency, and probable cause to believe that the emergency was inside the place to be searched.

That’s only the federal rule, however. Federal law only provides a minimum of protections, a base line of individual rights. The states can’t give less protection, but they can certainly grant greater protections. So New York remains free to adopt the Brigham City rule, or keep the Mitchell rule, or come up with a new one. (New York could even get rid of the emergency exception altogether, though that would be a silly result — nobody wants the police to be forced to watch helpless from the sidewalk while someone is being beaten to death on the other side of a window.)

But to date, New York’s courts have neither adopted nor rejected (more…)

Fourth Amendment Screwup: Supremes Get the Law Right, but Flunk the Jurisprudence

Monday, December 7th, 2009

 

In a seemingly ho-hum decision today, the Supreme Court made the shocking pronouncement that the states cannot afford their citizens more rights than the bare minimum allowed federally. A complete reversal of 200 years of American jurisprudence. And though it’s buried at the end of the opinion, it’s at the core of this otherwise routine Fourth Amendment case.

-=-=-=-=-

Although the Fourth Amendment says the police need a warrant to search your house, most of the time they never get one. We have exceptions to the warrant requirement in circumstances where getting a warrant would be pointless, or where concerns for safety take priority. One such exception is when the police have reason to believe that someone is in immediate need of assistance, because they might be hurt or in danger.

The issue is very simple — did the police have an objectively reasonable basis for believing that someone in the house needed help right away?

The issue is not whether, using perfect hindsight, there really was such an emergency. We only care about whether the police acted reasonably under the circumstances. If it sure looked like someone needed police help, then the fact that nobody actually did need help is irrelevant. The police are allowed to check it out to make sure.

The Supreme Court issued an opinion today, in Michigan v. Fisher, repeating this fairly basic rule. They had to, the majority wrote in a 7-2 per curiam opinion, because the Michigan Court of Appeals mis-applied the law, replacing the rule’s “objective inquiry into appearances with its hindsight determination that there was in fact no emergency.”

What happened was fairly simple. Some concerned citizens directed the police to Fisher’s house, where he was supposedly “going crazy.” Once they got there, it looked like Fisher’s pickup truck had smashed into his fence, and there was blood on the crumpled hood. There was blood inside the truck, and on the door to the house. Three of the windows had been busted from the inside. Looking through a window, the police saw Fisher screaming and throwing things, but they couldn’t see what or whom at. Fisher had a little cut on his hand, and the front door was barricaded with a sofa. The cops asked if Fisher needed medical attention, and he told them to fuck off and get a warrant. One of the cops pushed the front door open a bit, then saw Fisher pointing a shotgun at him through the door’s window. The cop beat a hasty retreat. End of intrusion.

The trial court and the state’s highest court said the gun had to be suppressed, because the police never should have poked in through the front door in the first place.

The Supremes said this sure looked like a reasonable basis to believe someone needed immediate assistance. Fisher clearly acted as if he posed a threat to himself, if not to an unseen target of his violence inside the house. The police couldn’t see everything through the window, so pushing open the front door and peeking in was justifiable. The fact that nobody else ultimately was found to be inside, and that Fisher’s only injury was very minor in actuality, doesn’t change what the police knew at the time.

Stevens and Sotomayor dissented, saying that the Supreme Court essentially usurped the trial court’s role here. The Supremes weren’t there to assess the evidence during the hearing, so it was improper for them to say the trial court got the facts wrong. That’s not a bad argument. But that’s not really what the Supremes were doing here. They weren’t saying the court got the facts wrong — in fact, everyone pretty much agreed on the relevant facts — all they were saying is the Michigan Court of Appeals got the law wrong. And it certainly is the Supreme Court’s job to ensure that the law is being applied correctly.

What the Supreme Court did get wrong (though Stevens and Sotomayor missed it) is in saying that the Michigan court erred in holding the police to a higher standard than federal Fourth Amendment law requires. This is a hugely significant error of jurisprudence, and it should not go unremarked-upon.

The rights espoused in the federal Constitution are not the only rights that American citizens may have. They are nothing more than a minimum, a floor below which no government may go. But the states have their own constitutions, and are permitted to grant extra rights and freedoms to their citizens.

For example, on this same Fourth Amendment topic, the most important recent Supreme Court case is Brigham City v. Stuart, 547 U.S. 398 (2006), which said that the federal Constitution does not forbid the police to have had an ulterior motive. So long as the police had objectively reasonable grounds to believe that an emergency was at hand, the federal Fourth Amendment does not care whether the police wanted to see if there was any contraband there as well. It’s like the Whren case, saying that so long as the cops had probable cause in the first place, the federal Constitution doesn’t care whether the stop was really just a pretext so the cops could do something else. This is consistent federal law.

But the states are free to adopt the Brigham City rule or not, as they see fit. New York, for example, hasn’t gotten around to making that call yet. Its rule under People v. Mitchell, 39 N.Y.2d 173 (1976) imposes a requirement that the so-called emergency search not be a pretext for something else. Brigham City, if adopted, would do away with that requirement. But for the moment, it is still New York law, under the New York constitution.

The same goes here. Michigan’s highest court is the final arbiter of what the Michigan constitution requires. And if they say that the citizens of Michigan are entitled to greater protections from police intrusion than are afforded by the federal minimums, then the Supreme Court has no place saying otherwise.

And yet that is precisely what the Supremes have done here. The opinion is per curiam, but it reads as if Roberts wrote it. But whoever wrote it screwed up. They reversed because “the Michigan Court of Appeals required more than what the Fourth Amendment demands.” That is not grounds for reversal. Period. For the Supremes to even think that it is reflects a disturbing antifederalist, Hamiltonian, big-government, centralized-government arrogance that is totally contrary to basic principles of American jurisprudence.

Right result, wrong reason. Bad decision.

No More Strip Searches in Schools

Thursday, June 25th, 2009

srip-search.png

In a groundbreaking unanimous decision this morning, the Supreme Court ruled that it was unconstitutional for school officials to perform a strip search of a student suspected of possessing prohibited drugs. And school officials who do this in the future will have to pay damages.

Writing for the Court in Safford Unified School Dist. #1 v. Redding, Justice Souter stated that the search was unconstitutional because there was no reason to believe that the suspected drugs presented a danger — they were prescription-strength Advil, not heroin — and because there was no reason to believe that the drugs were concealed in the student’s underwear in the first place.

However, because the law wasn’t clear on this at the time, the school officials have qualified immunity protecting them from civil liability for the search. In other words, they don’t have to pay damages this time, but any school official who does this from now on will be liable.

School officials being the over-reacting sort, as a rule, it is a safe prediction that strip searches are going to drop nearly to zero. A line has been drawn that still permits many, if not most, strip searches in schools. But no vice principal is going to risk being personally liable for damages if a jury thinks they crossed that line. So no vice principal is going to go anywhere near that line. Strip searches in schools are probably over.

* * * * *

We previously blogged on this case here and here, and predicted pretty much this exact outcome. As we put it:

[The Court’s rule] will be fact-specific, whether the officials have evidence that is sufficiently credible to justify an articulable suspicion that contraband will be found during a strip search. And it will require a balancing, to ensure that the invasiveness of the search is proportionate to the danger of the contraband sought. A strip-search to find an explosive is one thing; but examining a young girl’s private parts to find Advil is another thing entirely.

It’s nice to be right once in a while.

* * * * *

This case started when school officials found prescription-strength Advil in the possession of junior-high student, who immediately blamed someone else. That someone else was a 13-year-old girl named Savana Redding.

The vice principal, Kerry Wilson, walked into Redding’s math class and made her come to his office. He confronted her with the pills, and she denied knowing anything about them. She consented to a search of her belongings. Wilson and an assistant searched Redding’s backpack, and found nothing.

Instead of letting Redding go back to class, Wilson ordered the assistant to take her to the school nurse’s office, to search her clothes for pills. The assistant and the nurse made Redding take off all her clothes, except for her panties and bra. No pills were found in her clothes.

Instead of letting Redding go back to class, they made her pull out her bra and panties, exposing her breasts and vagina for search. No pills were found.

Instead of letting Redding go back to class, the officials made her sit in Wilson’s office for hours afterwards, without contacting even her parents.

Not surprisingly, Redding’s mom sued the school, Wilson, his assistant and the nurse for conducting a strip search in violation of Redding’s Fourth Amendment rights.

* * * * *

Writing for the Court, Justice Souter acknowledged that school searches are held to a lesser level of suspicion than the probable cause ordinarily required, per New Jersey v. T.L.O., 469 U.S. 325 (1985). And the facts that can give rise to this suspicion depend on the circumstances of the particular case, per Ornelas v. U.S., 517 U.S. 690 (1996). The standard for a school search could be described, he said, “as a moderate chance of finding evidence of wrongdoing.”

Wilson had enough suspicion to search Redding’s backpack and outer clothing, Souter held, because Redding was friends with Marissa Glines, the girl who’d been caught with the pills. Glines had Redding’s day planner on her when she was caught. Glines and Redding were part of a group of girls who had been rowdy at a dance, and who were tied to alcohol and cigarettes found in the girls’ bathroom at that dance. Redding had thrown a pre-dance party where alcohol had been served. And Glines said that Redding had given her the pills. All of that was enough, concluded Souter, to give Wilson reasonable suspicion that Redding had given out the pills.

That reasonable suspicion logically led to a reasonable suspicion that Redding possessed more pills. That certainly justified a search of her backpack and outer clothing in the privacy of Wilson’s office. “If Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack,” opined Souter, “it would not justify any search worth making.”

But the strip search (and Souter took time to say that this search was indistinguishable from a full strip search, based on both subjective and objectively reasonable societal expectations of personal privacy)…

Subjectively, Redding had an expectation of privacy against such a search, which to her was “embarrassing, frightening, and humiliating.” Objectively, that expectation was reasonable, as like other adolescents her emotional vulnerability only intensified the intrusiveness of a strip search, which “can result in serious emotional damage.”

Indignity alone doesn’t make a search unconstitutional, of course. But the intrusiveness must be proportionate to the suspicion, taking into account the age and sex of the student, along with the nature of the suspected offense.

Here, the suspicion was that Redding had pills that were the equivalent of two Advil, or one Aleve. Wilson had to know that the threat from such pills was negligible, and he had no reason to suspect that anyone had such pills in large enough quantities to harm anyone. So the suspected threat was minimal.

Also, Wilson had no reason to suspect that Redding “was hiding common painkillers in her underwear.” General “common knowledge” that kids sometimes hide contraband in their underwear is not enough. He had to have some actual reason to think that Redding was doing that, and there was no reason to think that at all. Wilson hadn’t even bothered to find out when Glines claimed to have received the pills from Redding — it could have been days before.

So Wilson had no reason to believe that any students were in danger. And he had no reason to believe that Redding had any pills in her underwear. For those reasons, the search was unreasonable, and therefore unconstitutional.

* * * * *

Justices Stevens and Ginsberg would not have granted qualified immunity to the school officials in this case. Their take was that this law was not unsettled, but was in fact clear. “Nothing the Court decides today alters this basic framework,” wrote Stevens. “It simply applies [existing caselaw] to declare unconstitutional a strip search of a 13-year-old honors student that was based on a groundless suspicion that she might be hiding medicine in her underwear.”

Ginsberg, who had given reason to believe she doubted that the male Justices fully appreciated how this would affect a 13-year-old girl, wrote that “Wilson’s treatment of Redding was abusive, and it was not reasonable for him to believe that the law permitted it.”

Justice Souter felt that the law really was unsettled, however, as the Sixth and Eleventh Circuits had permitted such strip searches in the past, and there were numerous decisions in the lower courts drawing similar and reasoned conclusions. So this case settled the issue, but it would be wrong for school officials to be personally liable for damages in light of the lack of uniformity in the law till now.

Still, he said, “parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment.”

* * * * *

Justice Thomas also wrote a separate opinion. It was technically a concurring opinion, but he only agreed that the school officials were entitled to qualified immunity here. As to the big issue, Thomas flatly concluded that there was no Fourth Amendment violation.

Thomas felt that it was “an unjustifiable departure from bedrock Fourth Amendment law in the school setting” to require a search to be proportionate to the danger to other students, and that there be reason to suppose that the pills would be found in the private areas searched.

All that was needed, according to Thomas, is that the officials search in a location where the pills could have been located. If there is reason to suspect that a student had contraband, which all the Justices agree Wilson had, then the officials should be allowed to search any place where the student might have hidden the pills. The strip search here, therefore, ought to have been considered reasonable in scope.

In a long and carefully-argued 22-page opinion, Justice Thomas made a good point that today’s decision actually changes the law — it does not merely clarify it. The law till now has afforded school officials great deference to act in loco parentis, and the courts have wisely stayed out of substituting their own judgment for that of the school officials entrusted with the safety of our children. Today’s decision now opens up school searches to second-guessing by the courts. And, as we ourselves predicted above, this is going to have a chilling effect on even those searches which the law would have allowed.

Today’s decision, warned Thomas, means that the judiciary is “essentially seizing control of public schools,” and teachers will not now be able to “govern their pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn, by making riles, giving commands, and punishing disobedience without interference from judges.”

“By deciding that it is better equipped to decide what behavior should be permitted in schools,” concluded Thomas, “the Court has undercut student safety and undermined the authority of school administrators and local officials. Even more troubling, it has done so in a case in which the underlying response by school administrators was reasonable and justified.”

* * * * *

We actually agree with Thomas that the Court has changed the rules, and that it will have a chilling effect. But we still think the Fourth Amendment requires precisely the justifications that the Court has now imposed.

It’s a balancing of interests. We happen to think that society would rather protect the privacy interest that adolescents won’t be strip searched in school, without proportionate concern for safety and without reason to believe the search will actually find anything. Thomas thinks that it’s more important to society to get the evidence that would come from searching anywhere that suspected contraband might be found, once it is suspected.

Thomas’ underlying principle here, we believe, is just not in sync with the general principles of our society. So although his predictions are probably true, the risks he suggests are simply those that society is willing to accept in exchange for the privacy rights protected by the Constitution.

Defense to Win All Remaining Supreme Court Cases

Wednesday, June 17th, 2009

supreme-court-fountain.png

With only two more decision dates remaining in this Supreme Court term, we’ve got our eyes on four criminal cases yet to be decided. Either next Monday (June 22) or the following Monday (June 29), we should expect to hear from the Supremes.

We’re going to make a prediction right now that all four cases will be decided in favor of the defense. Furthermore, we predict large majorities or unanimous decisions in each case. (Go ahead and laugh, we’ll wait for you.)

The four cases are:

Safford USD v. Redding, No. 08-479. We talked about this one before (see here). A public school had an absurd zero-tolerance policy (surprise, surprise), this time prohibiting prescription Advil. A girl got caught with some. She blamed someone else (surprise, surprise). School authorities confronted the other girl, Redding, who denied being involved. They searched her backpack, and found nothing. They searched her clothes, and found nothing.

Now at this point, a reasonable person might have figured out that the girl who was caught with the actual pills was trying to pull a fast one here. But these were not reasonable people — they were public school officials. So they had Redding — a 13-year-old girl — expose her breasts and vagina. They found no pills. Then they shook out her underwear, and found nothing. Then both the school nurse and another school official physically searched the girl’s body. They found nothing.

Now at this point, a reasonable person would have surely figured out that there was nothing to see here. But these bright bulbs instead stuck the girl in the principal’s office alone for a few hours, didn’t contact her folks, and didn’t bother searching anyone else.

The girl sued, claiming (surprise, surprise) that her Fourth Amendment rights had been violated.

The Supreme Court has now been asked to decide whether public school officials are permitted by the Fourth Amendment to perform a warrantless strip search of a student whom they merely suspect of possessing forbidden contraband.

The school wants the Court to say yes, schools can perform strip searches any time they have reason to suspect that a student has forbidden contraband. They want a rule that doesn’t let judges second-guess the judgment of school officials.

Our prediction is that the Court isn’t going to grant such a bright-line rule. For the reasons we set out in our previous post, we predict that the Court will require a case-by-case analysis. It will be fact-specific, whether the officials have evidence that is sufficiently credible to justify an articulable suspicion that contraband will be found during a strip search. And it will require a balancing, to ensure that the invasiveness of the search is proportionate to the danger of the contraband sought. A strip-search to find an explosive is one thing; but examining a young girl’s private parts to find Advil is another thing entirely.

* * * * *

The next case we’re looking for is Yeager v. United States, No. 08-67.

The issue in Yeager is collateral estoppel after a hung jury. Specifically, a jury acquitted on some counts, and hung on other counts, all sharing a common element. Perhaps the only explanation for the acquittals is that the jury decided that common element in the defendant’s favor. So is the government prevented from re-trying the hung counts, by collateral estoppel?

Yeager was an executive with Enron’s telecom unit, charged with 176 white-collar crimes. After a three-month-long trial, the jury acquitted him on the counts of conspiracy, securities fraud and wire fraud. But the jury hung on the counts of insider trading and money laundering.

The Fifth Circuit said that one explanation for the acquittals is that the jury found that Yeager had no inside information. That was also an element of the insider trading count. But the Circuit said it was impossible to determine “with any certainty what the jury” actually must have decided. So that meant there could be no collateral estoppel precluding a new trial.

At oral argument, Justice Souter honed in on the real issue here, which is a conflict between two underlying principles of our current jurisprudence. On the one hand, once a jury has determined a fact, the government doesn’t get a second chance to prove it. On the other hand, the government is permitted a full opportunity to convict, so it is allowed to re-try counts where a jury hung. Chief Justice Roberts and Justices Kennedy and Breyer explored the conflicting principles in greater depth. Although the government’s attorney was more deft at handling the philosophical argument, and Yeager’s attorney seemed to be stuck in a surface argument, it seemed by the end that the Court was siding with Yeager.

What seems to have killed the government’s position here was its assertion that acquittals should not affect retrials if they are not “rational” — meaning they are inconsistent with the jury’s remaining outcomes — and that a hung count is an outcome that can be used to determine whether the actual verdicts were rational. That not only conflicts with precedent that permits inconsistent verdicts, but also defies common sense by treating the absence of a decision as an affirmative determination.

This one’s a tossup, but we’re going to predict a ruling in favor of Yeager here.

* * * * *

The third case to watch for is District Attorney’s Office v. Osborne, No. 08-6.

Osborne was convicted 14 years ago for kidnapping and sexual assault. The victim was brutally assaulted and raped in a remote area in Alaska. Osborne was alleged to have used a blue condom. A blue condom was found at the scene, containing semen. Osborne now wants to get discovery of the semen, and have DNA testing done at his own expense, in the hopes that it will demonstrate his innocence. The State of Alaska refused.

Osborne brought a 42 U.S.C. §1983 civil rights suit, arguing that Alaska’s refusal violated his Due Process rights. The district court dismissed the suit, saying he should have brought a Habeas claim instead.

The Ninth Circuit issued two decisions. The first was that a §1983 suit is fine here, because the outcome would not necessarily undermine the state-court conviction. The DNA evidence could potentially prove his guilt, or be inconclusive. It would only require Habeas if the evidence would have to demonstrate innocence. And he could still bring a Habeas later if the §1983 action fails.

In its second decision, the Ninth Circuit forced the Supreme Court’s hand. The Supremes have long taken pains to avoid deciding whether a convict can overturn his conviction based only on a claim of innocence, rather than on pointing out defects in the way the trial was conducted. But the Ninth assumed that this is permissible.

Then, based on that assumption, the Ninth said that in circumstances like that — in fact, only in circumstances like that — where a convict could later use the evidence in a freestanding innocence claim, then Brady gives a post-conviction right to access potentially favorable evidence.

The Supreme Court is now deciding both issues: whether the §1983 suit is appropriate for accessing DNA evidence post-conviction, and whether Due Process requires such access if it could establish innocence.

At oral argument, Justice Souter barely let the Alaska A.G. get a word out before launching a lengthy debate over whether Osborne merely sought evidence that might or might not allow him to establish a claim later, or whether he sought evidence that he affirmatively believes will be the basis of a claim of innocence. By the end, both Scalia and Ginsburg had gotten involved, and the Chief Justice was wondering whether the State even had the evidence any more. Breyer got everyone back on track, pointing out that §1983 was appropriate when you didn’t know what the evidence was yet, and Habeas is appropriate when you do know. And here, nobody knows what the DNA evidence is, yet. So how come the State doesn’t have a constitutional obligation to give him the DNA?

The AG gave a terrible response, saying that Osborne simply followed the wrong procedure. Half the bench jumped in to interrupt him, dumbfounded at the assertion, given that Alaska doesn’t have a statutory procedure in the first place. The one statute out there (as Scalia pointed out) first requires an assertion that the evidence establishes innocence, which is the one thing nobody can say yet, because it hasn’t been tested yet. Souter and Scalia tag-teamed the AG on that mercilessly. At one point, Scalia had the audience laughing at the AG. For the rest of the oral argument, the Justices would refer to the fact that they “must have missed” this procedure being mentioned in any of the briefs.

By the end of the AG’s time, nobody had even gotten to the juicy issues yet. Breyer tried to give the AG a chance to talk about it, but the AG just went back to his procedural claim that had used up his time already. This only frustrated the Justices.

The U.S., as amicus to Alaska, started off better, getting to the heart of the issue — the issue the Supreme Court has so long avoided — arguing that prisoners do not have the right to challenge their conviction based on a freestanding claim of actual innocence. But Souter suggested that the right may be found, “not in procedural, but in substantive Due Process,” and asked a hypothetical about letting counsel speak to another prisoner who claims to have exonerating evidence. The Deputy S.G. floundered, and got laughed at as well. They never even got to the constitutional issue (as Souter repeatedly pointed out), and got mired in whether the government even has an interest here in the first place. And then time was up.

Osborne’s lawyer did much better. He deflected the Court’s concerns that at trial the defense had chosen not to test the DNA, and thus must have believed it would show guilt, by pointing out that both sides chose not to test it, because the tests available would have destroyed all of the evidence, precluding later testing.

The Justices across the board expressed concern that they were being asked to create a new constitutional right here. Shouldn’t a prisoner have to make a claim, under penalty of perjury, that he is actually innocent first? Shouldn’t there be a requirement of due diligence, so that claims aren’t made years and years after they could have been brought? Osborne’s attorney admitted that those are fine ideas, and wouldn’t be an obstacle here.

Then Scalia tipped his hand a little. Osborne’s lawyer observed that this is the first case where a prosecutor conceded that DNA would be “absolutely slam-dunk dispositive of innocence,” but doesn’t let the prisoner access it. Scalia thought out loud, “you know, it is very strange. Why did they do that, I wonder?” “Well, it’s very…” Scalia interrupted, “there was a lot of other evidence in the case, wasn’t there?” “Well, that’s…” Scalia cut in, “I don’t know what they thought they were doing.”

Scalia, for one, is not likely to side with the DA’s office here.

Souter came back to his conclusion that this is a substantive Due Process issue, which would require that the prisoner first claim that he is actually innocent. This conflicted with the sworn testimony before the Parole Board admitting guilt. But Breyer pointed out that prisoners often wisely admit guilt before such Boards, because they’re not getting out otherwise. (As defense lawyers like to say, forget guilt or innocence, “out is out.”) So relying on Parole Board admissions would be an arbitrary basis for withholding DNA evidence. So “suppose we said that the rule is non-arbitrary, with illustrations. Send it back to the states. And of course, when they apply their own statutes, by and large they’re not being arbitrary.” Osborne’s counsel agreed, “I think that’s a very sound approach to this.” Breyer responded, “well, it does help you win.”

I don’t think Breyer or Souter are siding with Alaska here, either.

The Chief Justice wondered if the right would be depend on the accuracy of the testing available. No, said Osborne’s lawyer, it has nothing to do with it — the right would just prohibit the state from arbitrarily preventing access to evidence. So long as there’s a reasonable probability that the test will demonstrate evidence, then that should be enough.

On rebuttal, the AAG got maybe three words in edgewise.

So just going from the oral argument, we’re going to predict a loss for Alaska.

Now whether that means a whole new constitutional right or not, well we’re not so sure. This only affects a handful of defendants whose convictions came before the Federal Innocence Protection Act in the mid-1990s.

The trick, though, will be whether the Court can continue to avoid the elephant in the room, the issue of whether one can assert a freestanding claim of innocence. The Ninth Circuit made it a prerequisite, and both the liberal and conservative Justices seemed to put a lot of weight on whether the prisoner first asserted innocence.

We predict that the Court is going to go all the way here. And as long as we’re going out on a limb, we’ll also predict a unanimous decision.

* * * * *

The final criminal case yet to be decided is also the oldest: Melendez-Diaz v. Massachusetts, No. 07-591.

The issue is straightforward: Is a lab report, by itself, a form of testimony for Confrontation Clause purposes, per Crawford v. Washington, 541 U.S. 36 (2004)?

Crawford says you can’t introduce earlier statements of a government witness, if they hadn’t been subject to cross-examination.

Well, a police lab report wasn’t subject to cross-examination when it was created. But they are often admitted into evidence without live testimony from the chemist or forensic expert who made the report — they’re self-authenticating. If lab reports are testimonial, then Crawford would preclude this practice. If they are not testimonial, but merely a record, then they could continue to be admitted without live testimony.

The Massachusetts Supreme Judicial Court looked at this conundrum a couple times, and decided that drug analysis reports were simply records of “primary fact, with no judgment or discretion,” by the chemist who prepared them. So they weren’t testimonial, and there was no Confrontation Clause problem.

Melendez-Diaz was the defendant in the second such case, which affirmed the first one.

It’s a sure bet that Scalia is going to side with the defendant here. He has long been a champion of the Confrontation Clause, and his contributions at oral argument were true to form.

The Massachusetts AG was frankly an embarrassment, making inaccurate assertions (and being corrected by the Court), resting heavily on the lame argument that nobody’s made this particular claim before, and claiming that requiring chemists to testify would be an “undue burden,” even though it’s no such burden to California or New York or any other state where it’s routinely done at trial. Kennedy even coached the AG with arguments that she ought to have been making, and scolded her when she still didn’t make them.

Justices Kennedy, Scalia and Stevens had little patience for the amicus Assistant S.G., whose argument was that machine-generated reports aren’t testimonial. There’s a difference between an automated record and a computerized document created for the purpose of proving an element of a crime at trial. And they’re different from computerized documents reflecting the observations and conclusions of a human being.

Based on how the oral argument went, we’re going to predict yet another win for the defendant.

Mandatory DNA Sampling Constitutional. Expect Ruling to be Upheld.

Friday, May 29th, 2009

dna.png

In a decision sure to be fought before the 9th Circuit, a federal judge in the Eastern District of California yesterday upheld mandatory DNA collection from people merely arrested for federal felonies, regardless of the nature of the crime charged.

Obviously, this raises eyebrows in certain circles. Taking DNA from people who haven’t even been convicted yet? Taking DNA from people who aren’t suspected of committing crimes where DNA would even be relevant? Doesn’t this violate basic principles of our jurisprudence?

Well… and this is a defense attorney talking here… no.

The case is U.S. v. Pool, decided by Judge Gregory G. Hollows. The defendant was charged with possession of child porn, and was released on bond. One of the conditions of release was that he provide a DNA sample.

This requirement was mandatory under two federal laws: the Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1)(A), which mandates it for pre-trial release; and the DNA Fingerprinting Act of 2005, 42 U.S.C. § 14135a, which mandates it for everyone arrested on a federal felony charge.

DNA is usually collected by dabbing a cotton swab in the person’s mouth or something similar. Rarely, it is collected by a blood test. The DNA is to be used solely by law enforcement for identification purposes.

Pool argued that this warrantless DNA sampling violates the Fourth Amendment. It’s a search, there’s no warrant, and there’s no special need for the testing for nonviolent arrestees.

Judge Hollows rejected that argument, stating that every Circuit to consider the issue has held there to be no Fourth Amendment violation here, and that the criterion is not “special need” but rather the “totality of the circumstances.” The reasonableness “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”

Pool argued that pre-conviction sampling is improper, based on the Supreme Court cases Ferguson v. City of Charleston, 532 U.S. 67 (2001)(unconstitutional search for law enforcement to use hospital’s diagnostic test of pregnant patient to obtain evidence of drug use), and City of Indianapolis v. Edmond, 531 U.S. 32 (2000)(vehicle checkpoint unconstitutional when primary purpose was to detect evidence of drug trafficking). Those cases relied on the “special need” analysis he suggested.

Judge Hollows rejected that as well, as those searches involved police fishing for evidence, before anyone was formally charged with a crime. The statutes at issue here subject people to DNA testing after a finding of probable cause by a judge or grand jury. After someone’s been indicted, courts can impose all kinds of restrictions on liberty. The situation is much more like that of people who have been convicted, than of people who have not yet been charged with anything, and so the “totality of the circumstances” test is more appropriate.

For more than 45 years, it’s been well-settled that someone who’s been arrested has a diminished expectation of privacy in his own identity. He can be compelled to give fingerprints, have his mug shot taken, and give ID information. DNA is no different than fingerprints — a unique identifier that helps law enforcement find the right suspect, and eliminate the wrong suspect. In fact, DNA is more precise than photos or fingerprints, so the government interest in obtaining it is even stronger.

Meanwhile, the invasiveness is minimal. Even blood tests are considered “commonplace, safe, and do not constitute an unduly extensive imposition on an individual’s privacy and bodily integrity.” Oral swabs are considered no more physically invasive than taking fingerprints.

The judge also rejected arguments that DNA evidence, once taken, might possibly be stolen and put to an impermissible use. That risk applies to everything, and there are criminal penalties to deter it. Just because someone might break the law doesn’t mean the setup is improper.

Judge Hollows pointed out that all the same concerns being raised about DNA were raised in the early part of the 20th Century with respect to fingerprints. And since at least 1932 it’s been understood that the public interest far outweighs the minimal burden to the individual being fingerprinted. The same reasons that justify post-arrest fingerprinting without a warrant justify post-arrest DNA sampling without a warrant.

Pool also argued that this violates Fifth Amendment procedural due process, because it’s mandatory, and thus precludes an opportunity to be heard. But that only applies if the defendant’s privacy rights outweigh the government interest, and it’s the other way around here. Pool argued that there is a risk of erroneous deprivation of his privacy interest, for arrestees who are not ultimately convicted. But the system is set up to expunge DNA records if the person is exonerated or the charges are dismissed. So the risks are minimal, and the government interests are compelling, and that means there is no procedural due process problem.

Pool also argued that this violates the Eighth Amendment protection against excessive bail. Bail conditions have to be proportionate to the perceived government need requiring the condition. But the Supreme Court case that set this rule, U.S. v. Salerno, 481 U.S. 739 (1987), specifically rejected any idea that this “categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release.” This being nothing more than a booking procedure, and not comparable to conditions of release that actually have to do with the concerns arising from letting someone out on bail, there’s no reason to consider it excessive.

Pool also argued that the statutes violate the Separation of Powers, as Congress has intruded on judicial decision-making in the setting of bail conditions. But here, Congress didn’t direct any judicial findings. It merely directs what the judge needs to do after a certain finding has been made. That’s what Congress is supposed to do. There’s no problem there.

Poole finally argued that this is an unconstitutional extension of power, because the Commerce Clause doesn’t authorize DNA sampling. But the Commerce Clause lets the government make conduct a federal crime. The resulting government powers, such as incarceration and terms of release, have nothing to do with it, and don’t need to be independently authorized under the Commerce Clause.

* * * * *

What to make of this?

Pool’s arguments stem from a presumption that a person out on bail is more like a pre-arrest suspect. Judge Hollows’ decision stems from the opposite conclusion, that a person out on bail is more like a person on post-conviction supervised release. Any arguments before the 9th Circuit will have to focus on which it is, and we are inclined to believe that the Circuit will side with Judge Hollows here.

Central to the distinction is the fact that there has already been a judicial determination here, separating the defendant from the class of unarrested individuals. Either a judge or a jury has found that it is more likely than not that a federal felony was committed, and that this person did it. Once that has happened, a person’s rights are substantially changed. Society has an interest in ensuring that they come back to court to be judged. Society has an interest in ensuring that they don’t cause more harm in the meantime. These interests outweigh a defendant’s interests in liberty and property, to varying degree depending on the individual. That’s why we have bail and bail conditions.

What is odd, however, is that Congress made DNA sampling a mandatory bail condition, when it has nothing to do with pre-trial release.

Judge Hollows correctly points out that, conceptually, DNA sampling is no more invasive than fingerprinting, and is used for the same purposes. It’s a booking procedure, not a release consideration. Congress could just as easily have made DNA sampling a mandatory part of post-arrest processing, along with the mug shot and fingerprints. It would have been just as constitutionally sound.

By calling it something that it’s not, Congress subjected DNA sampling to this exact challenge.

Now, the ACLU differs with us, and calls the ruling “an incredible threat to civil liberties.”

“We think this ruling is incorrect,” ACLU attorney Michael Risher told reporters. “It ignores the presumption of innocence and it does not pay enough attention to the protections of the Fourth Amendment.” He also opined that police now have an incentive to make pretext arrests, just to get people’s DNA to help them solve crimes. How this changes things from the already-existing incentive to make pretext arrests to get fingerprints is unclear to this defense attorney. And anyway, police don’t need to arrest someone to get DNA or fingerprints — they can be collected by pretext in any number of ways, without a warrant, and often are.

With respect to the Fourth Amendment, what is clear here is that this is not a search for evidence. The crime has already been charged. It’s very clearly an administrative tool for establishing the identity of the defendant. Evidentiary consequences are merely hypothetical, if the person should somehow commit a violent crime in the future and leave behind DNA that gets compared to the database. That’s no different from mug shots, and unlike mug shots (where the chances of a false positive are unreasonably and embarrassingly high, given their variety and the innate unreliability of eyewitness recognition) DNA has an insignificant risk of identifying the wrong person. Mug shots aren’t a Fourth Amendment issue, neither are fingerprints, and neither is DNA, really.

* * * * *

One issue, however, is when the DNA is being taken for the purpose of gathering evidence, in the investigation of a crime.

That’s not the case here, and it’s sort of off point, but should a warrant even be involved then?

Well, isn’t it a Fifth Amendment violation then? You’re making someone incriminate himself against his will, right?

Wrong. Self-incrimination doesn’t enter into it, because what’s important there, the underlying policy of the right, is that we don’t want the government overriding people’s free will, and making them convict themselves out of their own mouths. We don’t want another Star Chamber. We don’t want the government using its overwhelming power to extort unwilling confessions, whether by thumbscrews, lead pipes, or simple custodial interrogation.

But taking blood samples has been held not to involve the right against compelled self-incrimination. Nobody’s being forced to say “I did it.” All they are being forced to do is provide physical evidence. There is no free will involved in the creation of that physical evidence — it exists whether the person wants to hand it over or not — but there is free will involved in the creation of confessions and incriminating statements.

But that brings us back to the Fourth Amendment. If someone is being compelled to give a swab or blood sample, then the government is seizing pre-existing evidence just as if they were seizing drugs from someone’s home. So shouldn’t a warrant be required after all?

Yes it should. But that’s only when the evidence is being sought as evidence. Constitutional rights really do depend on what’s going on. An administrative requirement is not the same thing as a criminal investigation. A DNA sample for administrative ID purposes is not the same thing as one taken to identify a potential suspect.

That’s the big difference here. And even given the 9th Circuit’s pro-defendant tendencies from time to time, we have a hard time predicting anything but an affirmation of Judge Hollows’ decision when this comes up on appeal.

NY High Court Requires Warrant for GPS Tracking, But Offers No Guidance for Future Technologies

Tuesday, May 12th, 2009

gps-track.png

In a lengthy decision today New York’s highest court ruled that police must get a warrant before they can put a GPS tracking device in a suspect’s car. In its ruling today, in the case of People v. Weaver, the New York Court of Appeals went out of its way to distinguish the U.S. Supreme Court’s ruling in U.S. v. Knotts, 460 U.S. 276 (1983).

In Knotts, the Supreme Court had said it was fine for law enforcement to put a rudimentary “beeper” tracking device inside a container of chloroform so that they could track its movements. Of course, technology has progressed since then. In today’s case, state police had slapped a GPS device known as a Q-Ball on Scott Weaver’s car, and left it there for 65 days. The device recorded in exact detail where the car went throughout that time, how fast it was going, essentially performing an uninterrupted physical surveillance.

The New York court said that, although the old technology was just an enhancement of ordinary surveillance, the new technology is just too invasive, and therefore requires a warrant before law enforcement can use it.

In getting there, the court spent a pleasant few pages outlining the evolution of Fourth Amendment law, reminding us that until at least 1928 it only protected searches of material property, and so intangible searches such as wiretaps required no warrant. Brandeis, however, wrote a dissent to that 1928 case that struck a chord, and soon American law had come to agree with him that:

The protection guaranteed by the [4th and 5th] Amendments is much broader in scope [than the protection of property]. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

Olmstead v. U.S., 277 U.S. 438, 478-479 (1928)(Brandeis, J., dissent). Still, the U.S. Supreme Court didn’t really get around to adopting this view until Katz v. U.S., 389 U.S. 347 (1967):

the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the ‘trespass’ doctrine there enunciated can no longer be regarded as controlling. The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.

It looks as if the Court of Appeals wanted to continue the evolution of Fourth Amendment law, at least in New York state cases. The Knotts case had analogized the beeper tracker to a powerful set of binoculars that merely assisted cops see something they were already looking at. But a modern GPS is far more than that. “GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability.”

From planting a single device, the court said, the police may now “learn, practically effortlessly… the whole of a person’s progress through the world, into both public and private spatial spheres… over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries.” [That's true. Indeed, when we used to run investigations involving GPS transmitters and eavesdropping bugs placed inside cars, they’d be set up to run off the cars’ batteries, giving them unlimited staying power.] Police can get instantaneous disclosure of indisputably private trips. Knowing where someone went tells you much more: their political affiliation, their religious community, their lovers, their associations, their activities, what they do and who they do them with.

That doesn’t mean the police shouldn’t be allowed to use this tool, but only that the potential invasion of privacy is now so great that it requires court approval before it can happen. And there will of course be exceptions to the warrant requirement, as in a kidnapping or other exigent circumstance.

There was nothing in the record indicating why the police in this case used a GPS, so there was no evidence of an exigent circumstance. It seemed to be little more than “a hunch or curiosity” that caused them to do it.

The court was careful to state that this only applies to New York state law. The U.S. Supreme Court hasn’t ruled on this yet, and neither have most of the Circuits. But the states are free to provide greater individual protections than those established by federal law, which is only a bare minimum rather than an exemplar.

New York isn’t the first to issue a ruling like this. Washington did it in 2003, as did Oregon in 1988. But that’s only two states out of fifty, and their jurisprudence is not quite representative of the rest of the country. Just last Thursday, for example, Wisconsin’s court ruled the opposite way. And the federal Circuit courts that have decided this issue have permitted GPS to be used without a warrant. And this case isn’t going to the Supreme Court, because it’s a state decision under the state constitution. So we wouldn’t go looking for this to become the law of the land any time soon.

This was a far from unanimous decision, as well. Judge Smith wrote for himself and two others that the court drew an artificial and unworkable line between the kinds of technology that are okay to use without a warrant, and the kinds that require a warrant. “The attempt to find in the Constitution a line between ordinary, acceptable means of observation and more efficient, high-tech ones that cannot be used without a warrant seems to me illogical, and doomed to fail.” This appears to ignore the U.S. Supreme Court’s warrant requirement for heat-sensing cameras that reveal marijuana-growing lamps which the police wouldn’t have seen with the naked eye.

But we do get Smith’s point, and it’s a valid one. The majority failed to set forth an actual underlying principle here for where to draw the line. Clearly, high-powered binoculars don’t require a warrant. Surveillance cameras on street corners don’t need a warrant. Unsophisticated “beeper” trackers don’t need a warrant. GPS trackers do need a warrant.

What if the police actually had a surveillance camera on every street corner, and used current software that enabled them to track not only vehicles but faces — would they still need a warrant to use GPS when they’d get the same information without a warrant by using the cameras? If so, why? If not, why not? The court has given no direction here to future technological advances. All it has done is say this particular technology needs a warrant at this particular point in time. That’s not a useful decision.

In a separate dissent, Judge Read argued that the ruling here imposes an unnecessary burden on police, and at the same time “handcuff[s] the Legislature by improperly constitutionalizing a subject more effectively dealt with legislatively than judicially.” Judge Graffeo joined both dissents.

We have to disagree with Read here. Interpreting the Fourth Amendment is so obviously more appropriate to the courts than to the legislature that we have to wonder why she went to the trouble of claiming otherwise.

She’s also wrong in that the ruling really doesn’t handcuff the police — not in real life. Again thinking back (only a couple of years) to when we were doing these kinds of investigations ourselves, we routinely got a warrant for GPS transmitters. It was not exactly a burden. It still isn’t a burden. And if there’s a real emergency, the cops wouldn’t have to get a warrant anyway. They’d just have to be able to articulate it later, which should be easy if there really was an exigent circumstance.

The only burden this ruling puts on cops is to stop them from slapping a GPS on someone just because they feel like it. If they’ve got a good reason to do it, no judge will say they can’t, and they’ll easily get a warrant.

Supreme Search & Seizure: Court Uses Term to Attack 4th Amendment Absurdities

Friday, April 24th, 2009

supreme-court.png

The Supreme Court took on five Fourth Amendment cases this term. Four have been decided, and the fifth was argued on Tuesday. Although it may be premature to do so before the last decision comes down, we think it’s safe to draw some conclusions about the Court’s jurisprudence here, and predict what it might mean for the course of criminal justice.

The Fourth Amendment protects citizens against unreasonable searches and seizures. Like most other protections in the Bill of Rights, the whole point is to ensure that the State does not use its awesome power to override the necessary liberties and free will of individuals in a just society. The Bill of Rights prohibits the government from limiting ideas and their expression, from preventing individuals from arming themselves, from forcing soldiers into people’s homes, from extracting confessions by means that override the individual’s free will, from conducting secret “Star Chamber”-like trials or otherwise deny fair trials to defendants, from imposing indecent punishment, etc. If you sum up all the injustices that individuals face under medieval or tyrannical rule, the Bill of Rights pretty much says the U.S. government shall not do such things.

“Unreasonable” search & seizure basically means that, as a baseline, police ordinarily need to get a warrant first, by proving to a judge that they are more likely than not to find what they’re looking for, and that they’ll find it in the place they plan to look. There are exceptions to the warrant requirement, of course. Most searches don’t take place pursuant to a warrant, but under one of the exceptions.

If a person consents to a search, then no warrant is needed. Neither is a warrant needed if there is good reason to believe that evidence is going to be lost, or someone’s going to get hurt, if the cops take the time to get a warrant. There are various other exceptions.

The devil is in the details, of course. So the more exceptions you carve out from the general rule, the more room for error you create, and the more gray areas of confusion can pop up. Over the past few decades, various Fourth Amendment exceptions have indeed created confusion, gray areas, and absurdities.

The Supreme Court has taken the opportunity this term to attack those confusions, gray areas and absurdities head on.

On Tuesday, the Court ruled in Arizona v. Gant with respect to vehicle searches. (We reported on this here.) Back in the 60s, a warrant exception was carved out for searches of an individual and his “wingspan” — the area in his immediate reach — pursuant to a lawful arrest. The purpose was to ensure the safety of the officers and to preserve evidence. So long as the arrest was lawful, the search was lawful. Fast-forward to just after Reagan’s first swearing-in, when the Court expanded the search-incident-to-lawful-arrest to include the search of the passenger compartment of a car in which the arrestee had been riding.

Almost immediately after that ruling, everyone started to get the idea that cops could search the passenger area even after everyone was out of the car. The “wingspan” concept was lost, and instead a bright-line rule arose that, if the cops arrested someone who had been inside a car, then that car could be searched, period. Even after that person had long ago left the scene.

Some policy-makers like bright-line rules, because they require no thought. Individual circumstances need not be considered. An action that might not make sense, upon casual reflection, is still taken, because that’s the rule. If you don’t trust people to be able to weigh circumstances reasonably, then you give them bright-line rules.

And so it was that the police in Gant found themselves searching his car. Gant had already been arrested, handcuffed, and locked in a police cruiser, so the interior of his car was certainly no longer within his reach. So there was no reason to believe that he could destroy any evidence in the car or use something in the car to hurt the police. And he had been arrested for driving with a suspended license, not the kind of crime involving physical evidence, so there was no reason to believe that any evidence of that crime would be found in the car. In fact, the cops admitted on the stand that the only reason they search the car after the arrest was “because the law says we can do it.”

That was absurd. It’s an absurdity that just sort of happened, too. Nowhere in the 1981 Belton case did the Court lay out a bright-line rule. But that rule became the common interpretation, and has been the common interpretation for a quarter of a century.

On Tuesday, however, the Court finally stepped in to undo the absurdity. In a narrowly split 5-4 decision, the Court ruled that the police are not allowed to search a car simply because they made an arrest. The bright-line rule was thrown out the window. Interestingly, the case made for strange bedfellows. Contrary to popular expectation, Scalia and Thomas joined the pro-defendant side, and Breyer joined the pro-government minority. Scalia, in fact, felt that the majority opinion didn’t go far enough to limit the government’s power to search a car after an arrest.

The dissent essentially boiled down to a version of stare decisis — the common interpretation has been around for so long, that it has become the law of the land, and should be treated as such. That’s an interesting, but flawed, rationale. Stare decisis has to do with longstanding judicial precedent, not with some sort of jurisprudential adverse possession. Common practice does not equal legal precedent. Just because nobody has bothered to claim till now that the common interpretation was wrong, that doesn’t mean that nobody ought to be able to claim that now.

Anyway, the rule now is that the bright-line rule is no more. Cops can only search the passenger compartment if they have reason to believe — on a case-by-case basis — that the arrestee can still gain access to the car or that the car contains evidence of the crime for which he had been arrested. They can’t go looking just because the guy was arrested. They can’t go looking for evidence of other crimes. (They can still, however, either get a warrant, or impound the car and do an inventory search.)

- – -

Argued the same day as Gant was decided was Safford Unified School District v. Redding. This also has to do with bright-line rules, in a way.

For context, the oral arguments were made almost to the day on the 10th anniversary of the Columbine shootings. Ten years ago, a couple of juvenile delinquents killed 12 people in a high school, the worst such violence that the U.S. has ever seen.

Due to the resulting hysteria and misinformation about the events, schools nationwide began passing bright-line “zero tolerance” rules out of fear that similar crimes might happen to them. Although it is now known that the killings were totally random, there arose a misconception that the killers sought out specific categories of victims. This led to panicked overreaction whenever a kid was found to have identified people in the school that they didn’t like. In fact, the killers wanted to kill everyone, setting (faulty) bombs to go off in the cafeteria (the fact that nobody every mentions the totally obvious similarities to the plot of the 1988 movie “Heathers” is beyond us).

Zero tolerance policies resulted in the expulsion of even little kids for bringing anything remotely resembling a weapon to school. Even when doing so was clearly absurd, as with water pistols, plastic army men, miniature toys, eating utensils, and the like.

Zero tolerance policies went after anything that might even slightly imply to the most paranoid hysteric an imaginary threat of unlikely harm to students or teachers. This included little girls hugging (because touching without permission can sometimes be a bad thing, all touching must be bad!). It included bringing a cake knife to school to cut a cake one had also brought to school.

And drugs are bad, by definition. So zero-tolerance included bringing any drugs to school. Passing out Tylenol can get kids expelled. It’s serious!

These bright-line zero-tolerance rules are imposed because school administrators are afraid. They’re afraid of their students. And they’re afraid of having to act rationally on a case-by-case basis. So they just over-react to everything, and establish bright-line rules so they don’t have to think.

And so we have Safford Unified School District v. Redding.

In Safford, we have a middle school (also in Arizona), where school authorities caught a 13-year-old girl with (gasp!) prescription-strength ibuprofen. This was a zero-tolerance school, and even though there is no way that ibuprofen counts as a dangerous drug, it was a bright-line prohibited medicine. So this girl was in serious trouble.

The girl (gasp!) pointed the finger at someone else. She said that another girl, Redding, had given her the medicine.

School officials have the authority to preserve the health and safety of their students. Most would say they even have the responsibility to do so. So it is not suprising that the school investigated the culprit’s claims.

Without taking the time to get a warrant, and acting only on the say-so of the girl they actually caught with the medicine, school officials searched Redding’s backpack, and found nothing. Then they took Redding to the nurse’s office, and searched her outer clothing. Nothing. Then they had her stretch out her bra and panties, exposing her breasts and genitals. Nothing. They shook out her underclothes, and her body was inspected by the nurse and another school official. Nothing. Then they put her in the principal’s office, and left her there alone for a few hours, without calling her mother or anyone else. No drugs of any kind were found during all this searching, and nobody else was strip searched.

Redding sued, claiming that her Fourth Amendment rights had been violated when she was subjected to this strip search.

The school district seeks a bright-line rule that permits strip searches whenever a school has reason to suspect that a student has prohibited contraband on them. At the same time, and without appearing to notice the inherent hypocrisy, they argue that the courts should not second-guess the judgement of school officials. Here, they had a reason to suspect Redding, and that should be enough to let them strip search her.

Now, if the Court is inclined to lay down a bright-line rule at all here, that surely is not going to be the rule they impose. There is no way the Court is going to let school officials make an unreviewable decision as to whether there’s reason to conduct a given strip search or not.

Instead, they’d probably impose a bright-line rule requiring first that there be sufficient credible evidence — first, that this student has drugs in the first place; and second, that the drugs are concealed in the private regions of the student’s body.

But then, in addition to an evidentiary requirement, they’d probably have to include a proportionality requirement as well. The Court is unlikely to permit extraordinarily invasive searches for contraband that poses no real threat. Strip searches for plastic toys would be within the realm of lawful possibility, otherwise.

But if your bright-line rule requires weighing evidence on a case-by-case basis, and weighing proportionality on a case-by-case basis, then it really isn’t a bright line at all, is it?

No, we’re going to go out on a limb here and predict that the Court will reject any bright-line rule, and instead impose a balancing test. A good rule will require that strip searches are only allowed when there is credible evidence that the student is concealing contraband in or on her private body parts. Not just the say-so of another student trying to direct blame onto someone else.

And a good rule will require that a strip search be proportionate to the danger. It’s more reasonable if the kid’s believed to have explosives strapped to his body (a la Christian Slater in “Heathers”), or a weapon in his underwear, or decks of heroin in his nether regions. It’s not so reasonable if the kid’s only believed to possess a toy, or harmless medicine, or even a list of kids he doesn’t like.

A good rule will be fact-specific, and will require schools to actually exercise good judgment. A rule that lets them just act without thinking would be contrary to the direction this Court seems to be taking with its Fourth Amendment cases.

- – -

That leads us to the third Arizona case in this term’s Fourth Amendment decisions. On January 26, Justice Ginsburg wrote a unanimous decision for the Court in Arizona v. Johnson (which we wrote about here).

In Johnson, the Court clarified that a police officer can do a pat-down search, feeling someone’s outer clothing for weapons, if the officer has reason to believe that the person is armed and poses a threat to safety. The police don’t lose that ability to protect their own safety when other circumstances change.

Ginsburg pointed out that this really shouldn’t have been a point of confusion. A long line of cases, starting with Terry v. Ohio, clearly say cops can pat someone down for weapons if they have reason to believe the person’s armed and dangerous. And yet there obviously was confusion, evidenced by the Johnson case itself.

In Johnson, a female officer with gang experience was involved in a traffic stop. Before the stop, she had no reason to believe the passengers had committed any crimes. But during the stop, she saw things that led her to believe that one of the passengers was a gang member. She talked to him about things unrelated to the reason for the traffic stop, and some of the things he said led her to believe that he was armed and dangerous. So she asked him to step out of the car, to talk about things out of earshot of the other suspected gang members, then patted down his clothing and found a gun in his waistband. The passenger was later convicted of possessing the gun.

The Arizona Court of Appeals ruled that the officer lost her authority to pat him down once she started talking to him about matters unrelated to the traffic infraction. Even though she had reason to believe he was armed and posed a threat to her, the fact that she had talked to him about other things erased her ability to pat him down for her own protection.

The unanimous Supreme Court cleared that right up. The passenger was already seized, and not free to leave. The fact that he was being asked questions about other things didn’t change that. And the officer did have reason to suspect that he was armed and dangerous, and the topic of conversation didn’t change that.

Now in one respect, this is a bright-line rule. And as we pointed out in our previous post, we have problems with this bright-line rule, insofar as it has to do with whether a person involved in a traffic stop is free to leave. Under the Court’s rule, the answer is simply no, until the stop is over or the police let him go.

But the meat of the decision is not a bright-line rule. It is yet another case-by-case analysis: did the officer have reason to believe there was a weapon and that she could be in danger? The ruling simplifies the analysis by removing other considerations from the equation, as being irrlevant. The bright-line issue of whether someone is seized or not really has nothing to do with the core issue. And the Arizona court’s issue of whether the conversation has switched topics is beyond irrelevant.

- – -

The fourth case this term was Herring v. United States, which had to do with the exclusionary rule. (We wrote about this decision here.)

In Herring, the Court ruled that the exclusionary rule doesn’t apply when a policeman acts on flawed information from law enforcement in the next county. Herring, a character who’d had several run-ins with local law enforcement in Alabama, went to get his truck out of impound. The officer ran a check to see if any warrants were outstanding for him. There was a hit for an outstanding warrant in the next county. Herring was arrested on that warrant, and drugs were found. It turned out that the neighboring county’s records were erroneous, and there wasn’t any warrant.

Writing for the narrow 5-4 majority, Chief Justice Roberts ruled that the error was too separate from the search and seizure of the drugs. The officer who conducted the search didn’t have anything to do with the error, and it would be pointless to attribute it to him. Thinking of the exclusionary rule as a rule of deterrence, Roberts said it should only apply when excluding seized evidence would deter wrongful conduct. So the police conduct would have to be sufficiently deliberate that it could be deterred. And the conduct would have to be sufficiently wrongful to be worth the loss of evidence.

It’s easy to see where the majority was going here. It’s common for people to think of the exclusionary rule as balancing, on the one hand, our concern for protecting individuals against unlawful government intrusions, against our concern against “letting people off on a technicality” on the other hand. So here, the arresting officer wasn’t being negligent. He acted totally reasonably, relying on a criminal justice database. Excluding this evidence wouldn’t deter future reliance on criminal justice databases, and we actually don’t want that kind of reliance to be deterred in the first place.

But that common way of thinking really is a misconception. The exclusionary rule is not a rule of deterrence. And thinking of it that way can lead to confusion.

The exclusionary rule is the typical remedy for police violation of Fourth Amendment rights, by suppression of the evidence that would not have been gathered but for the violation. This protects the justice system, by ensuring that the maximum lawfully-gathered evidence is available, while ensuring that defendants aren’t prosecuted with unlawfully-gathered evidence.

Police officers and departments are not punished for violations, because that would be deterrent — it would create an incentive to avoid borderline situations where evidence could have been obtained lawfully.

Rather than do that, the exclusionary rule lets officers go right up to the line of what they’re allowed to do, and only takes away what they shouldn’t have been allowed to get, the evidence they got by crossing the line. The get to keep the other evidence.

The exclusionary rule is not an individual right, but is rather a remedy that has been crafted over generations of thoughtful jurisprudence. It simultaneously maximizes protection of the individual’s rights, and society’s interest in law enforcement. It balances two powerful and competing interests, and it does the job elegantly. As such, it is a beautiful rule, but one that is nevertheless criticized — both by law-and-order types and by defendant-rights types — when its role is misunderstood. Unfortunately, it is misunderstood all the time, and the Supreme Court itself did so here.

- – -

The last case is Pearson v. Callahan, decided on January 21. It involved Utah police officers who conducted a warrantless search of a home. There were no exigent circumstances. Instead, they thought their conduct was lawful under the “consent once removed” doctrine.

This is a legal doctrine that had been gaining traction out west (and in New Jersey) since the early 1980s. The way it worked here was, they flipped a suspect into an informant. Then they sent the informant to his drug spot, the defendant’s home. The informant was invited in, saw drugs, and went back to tell the cops what they’d seen. The defendant had consented to allow the informant into his home, and that consent was deemed transferred to the cops, as “consent once removed,” and so the defendant was deemend to have consented to the police entry into his home. Under that doctrine, he’d consented, so they didn’t need a warrant.

The cops were sued, and the issue was whether they had qualified immunity here. The Court’s unanimous decision, written by Justice Alito, mostly dealt with a procedural issue raised sua sponte. But in the end they briefly mentioned the underlying issue of whether the police acted lawfully here.

The test for qualified immunity was whether the unlawfulness of the officers’ action was clearly established at the time of their actions. If it was clearly unlawful, then they did not have qualified immunity.

As it happened, however, there was a line of cases that instead established that this kind of “consent once removed” search was fine back in 2002, at least out west. So the police were entitled to qualified immunity.

Disappointingly, the Court did not deal with the issue of whether this kind of attenuated consent is actually proper now in 2009. So there’s really no meat to this decision, which is why we saved it for last.

- – -

All in all, it looks like the Court is shying away from any judicial activism here. Rather than creating broader interpretations of individual rights, or establishing greater police powers, the Court is focusing on clarifying existing rights and powers. And instead of expanding the existing rules, the Court is simply trying to rein in misconceptions and absurdities.

Part of that trend seems to be the relaxing of bright-line rules. Bright lines are great when you don’t want people to have discretion, when you don’t trust them to think, or they’re not trained to understand the issues. You get some efficiency that way. But in real life, facts don’t always fit within those lines, and an unthinking application of bright-line rules will sometimes result in injustice. This Court seems to be moving away from the seeming mass efficiencies, in favor of individual justice.

Well, we like that very much.

Cell Site Data — Is a Warrant Really Required?

Monday, March 23rd, 2009

cell-tower.png

The 3rd Circuit is hearing an interesting appeal on whether the government needs to get a warrant before demanding cell site data from phone companies.

Cell sites are those transmitters you see on rooftops and towers, beaming and receiving cell phone communications. Their range varies from a few blocks to a circle twenty miles across, depending on their power and local geography. When a cell phone is being used, it’s communicating with a particular cell site.

Phone company records will show what cell site was being used by a particular phone at any given time. Law enforcement often requests such records, to help narrow down possible locations for an individual using a phone. This can be particularly useful if the individual is in motion, because his signal will be picked up by a series of cell sites, which can be used to map his progress.

This is passive data, as opposed to an active “ping” whereby a signal is sent directly to a particular phone for the purpose of identifying its location.

Most phone companies will not provide real-time cell site data to law enforcement without a court order. So court orders are routinely sought, often in conjunction with pen registers (calling records which show the time and phone number for calls sent and received). 18 U.S.C. § 2703 permits such an order when there are “specific and articulable facts showing that there are reasonable grounds to believe that… the records… are relevant and material to an ongoing criminal investigation.” These are called 2703(d) orders, and are different from eavesdropping warrants requiring probable cause.

In this case, the feds asked for a 2703(d) order, but unusually did not seek real-time cell site info. Instead, they asked for an order permitting them to get historical data. They’d been investigating drug trafficking, and were tracking one subject’s phones already. During the investigation, they identified what they believed to be the phone of their subject’s supplier. Physical surveillance proving difficult, the feds wanted to see historical cell site data, to see if they could figure out how the supplier had moved around.

The magistrate denied that request, holding that a request for real-time data would have been fine, but that historical data is not permitted pursuant to a 2703(d) order.

(As an aside, the investigators learned of the supplier’s number in June 2007, but didn’t apply for the historical data until February 2008. We know the feds take an inordinate amount of time in their wire and pen applications — one reason why they do comparatively few of them — but eight or nine months is astonishing.)

The feds appealed to the district court, arguing that the magistrate’s decision was bizarre. Instead, however, the district court went further than the magistrate had, and ruled that a warrant based on probable cause would be required for such historical records.

Although we are on the defense side, it seems as though both the magistrate and the district court judge got things backwards. Real-time cell site data, one would expect, is significantly more intrusive of privacy than historical data from up to six months ago. Real-time data can be used to locate where a person is now. The law clearly permits this more invasive search to be performed with a mere order. To require a probable cause warrant for the clearly less-invasive search makes little sense.

The ACLU, meanwhile, has stepped in with an amicus brief opposing the government. They basically argue that, yes, a 2703(d) order would have been sufficient, but the magistrate had the discretion to require a probable cause warrant instead. They then argue that, no, a 2703(d) order would not have been sufficient, and in fact a probable cause warrant ought to be required for all cell site information. People don’t know their cell site data is being collected, so they have an expectation of privacy.

We’re frankly not thrilled with the quality of either side’s brief. But the ACLU wins the “silliest syllogism” award for this one: They hypothesize a subject named Bob. Bob is talking on his cell phone as he enters his office, so with real-time cell site info the police now know he’s in his office. Bob is surveilled to his house. Once inside his house, he makes another call. But without the cell-site info, the cops would have no reason to believe the cell phone never left Bob’s office. Riiiight.

This is a case of first impression in the Third Circuit. One could easily see them ruling against the feds, too.

Feds who, by the way, brought this on themselves.

Seriously. They could have simply subpoenaed the historical business records without going to a judge in the first place. Asking permission to do something novel is the best way to create a precedent saying you can’t do it. But subpoenaing already-existing business records from phone companies is strictly routine. If they’d done it that way, we’d wager that the court would even have compelled the phone company to comply, if the need arose.

Supreme Court Expands “Stop and Frisk” Authority

Wednesday, January 28th, 2009

crips.png

On Monday, a unanimous Supreme Court reiterated its rule that a police officer may pat down the passenger of a car that was stopped for a traffic infraction, if the officer has reason to believe the passenger is armed and dangerous. The Court also added that the authority to conduct a patdown doesn’t end when police start asking about matters unrelated to the traffic stop.

Writing for the Court in Arizona v. Johnson (No. 07-1122), Justice Ginsburg pointed out that this is not exactly new law. Pennsylvania v. Mimms, 434 U.S. 106, held that police are allowed to ask the driver of a car to get out, after a lawful traffic stop. The interest in officer safety outweighed the “de minimis” additional intrusion of having the driver exit the car. Then, once the driver is out of the car, Terry v. Ohio, 392 U.S. 1, says he can be patted down if there’s reason to believe he’s armed and dangerous.

Maryland v. Wilson, 519 U.S. 408, said that the Mimms rule applies to passengers the same as to drivers. Passengers and drivers both have the same incentive to avoid being arrested for more serious crimes than the traffic violation, and have the same incentive to use violence to avoid such arrest. The interest in officer safety again outweighed the “minimal” additional intrusion of being asked to exit the car. Everyone’s already been seized, essentially, by the car stop.

Here, Officer Maria Trevizo, of Arizona’s gang task force, was part of a car stop for driving with a suspended registration. At the time of the stop, she had no reason to suspect any of the passengers of a crime. However, on approaching the car, she saw that the passenger Lemon Johnson wore Crips clothing, and had a police scanner sticking out of his pocket. When asked to identify himself, Johnson said her was from Eloy, Arizona, which Trevizo knew was a Crips gang location. Johnson also said he’d done prison time for burglary.

Trevizo wanted to ask more questions out of earshot of the others in the car, to see if she could get any info about the gang Johnson might have been in. So she asked him to get out of the car. Her observations so far, plus his statements, gave her reason to think he might be armed, so when he got out she started to perform a Wilson frisk. When she found a gun in his waistband, Johnson started fighting with her, and she handcuffed him. Johnson was later convicted at trial of, among other things, possession of a weapon by a prohibited possessor.

The Arizona Court of Appeals reversed his conviction, holding that Trevizo’s authority to pat him down ended when she started asking about matters unrelated to the traffic stop. Yes, he was initially detained pursuant to the traffic stop, but then the encounter devolved into a consensual conversation. As Johnson was no longer technically seized by the car stop, the police no longer had authority to conduct a patdown.

The Supreme Court held that the Arizona court got that wrong. Nothing ever happened that would have given Johnson reason to believe he was free to leave without police permission. He was seized by the car stop, and a reasonable person would understand that throughout the time the car is stopped, he isn’t free to just walk away. The mere fact that Johnson was being questioned about non-traffic-related matters wasn’t something that would change that understanding.

Moreover, the Arizona ruling just didn’t make sense. If it was to stand, then an officer who asked a passenger to step out of the car would have to first give the passenger a chance to walk away, before being allowed to pat him down. “Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.”

Other writers out there are seeing this ruling as a travesty, another nail in the coffin of Fourth Amendment protections. Over at Simple Justice, for example, the mere reiteration of the existing Wilson rule is called “the evisceration of rights by baby steps.” It’s clear that such writers simply disagree with the greater value the courts have placed on officer safety, as opposed to the freedom from being patted down. Those are their values, and we can’t fault that.

But critics such as these are missing the real point of the case, which is that a traffic stop never devolves to a lesser encounter until either the traffic stop is over, or until the police say so. To us, this seems to be a far more troubling bright line. Certainly, situations can be envisioned in which a passenger would reasonably believe that he was free to leave, even though the stop wasn’t over and the officer might disagree.

We, for example, once took a cab to an important meeting across town. The cab driver, playing to type, showed a remarkable ignorance of the workings of a motorized vehicle, as well as the difference between the street and the sidewalk. One of New York’s finest swiftly stopped the cabbie before anyone (including us) got hurt. While the officer dealt with the cabbie, we simply walked away and caught another cab. Under this new ruling, however, it would have been appropriate for the officer to stop us. The officer could then even frisk us, if he thought the wallet in our suit jacket was a suspicious bulge.

That’s what you get with bright-line rules, though. One the one hand, you get the efficiency and most-of-the-time fairness of an easy rule for officers to remember and follow. But on the other hand, you lose case-by-case judgment, and wind up with exceptional situations of authorized injustice. Yet another pair of considerations for the ongoing balancing test that is the law.

Justices Miss the Point of the Exclusionary Rule

Thursday, January 15th, 2009

supreme-court.png

The Bill of Rights, notably Amendments 4-6, protects accused individuals from improper action by the police. The typical remedy for police violation of these rights is suppression of the evidence that would not have been gathered but for the violation. This Exclusionary Rule protects the justice system, by ensuring that the maximum lawfully-gathered evidence is available, while ensuring that defendants aren’t prosecuted with unlawfully-gathered evidence. Police officers and departments are not punished for violations, because that would create an incentive to avoid borderline situations where evidence could have been obtained lawfully. Rather than do that, the Exclusionary Rule lets officers go right up to the line of what they’re allowed to do, and only takes away what they shouldn’t have been allowed to get.

The Exclusionary Rule is not an individual right, but is rather a remedy that has been crafted over generations of thoughtful jurisprudence. It simultaneously maximizes protection of the individual’s rights, and society’s interest in law enforcement. It balances two powerful and competing interests, and it does the job elegantly. As such, it is a beautiful rule, but one that is nevertheless criticized — both by law-and-order types and by defendant-rights types — when its role is misunderstood. Unfortunately, it is misunderstood all the time.

So it was no surprise to see plenty of misunderstanding of the Exclusionary Rule in yesterday’s Supreme Court decision in Herring v. United States (No. 07-513). Split 5-4 (and with delightful sniping in the footnotes), the justices on either side of the ruling tried to clarify what the Exclusionary Rule means, but only demonstrated that they’re missing the point. All of them. In their attempt to clarify the rule, all they did was muddy the waters.

That’s right, we just said that we understand the Exclusionary Rule better than the Supreme Court. Modesty is not our strong suit.

The Herring case arose in Coffee County, Alabama. Bennie Dean Herring was someone who’d had his share of run-ins with law enforcement over the years. His truck was impounded, and he went to the Sheriff’s Department to get something out of it. When one of the Sheriff’s investigators found out, he had the Coffee County warrant clerk check to see if Herring had any outstanding warrants. There weren’t any in Coffee County. Then they called neighboring Dale County to check. The Dale County computers showed an active arrest warrant for failing to show up in court on a felony charge. Based on that information, the Coffee County officer pulled Herring over as he left the impound lot, arrested him, and recovered methamphetamines and an illegal gun.

In the meantime, the Dale County warrant clerk went to get a copy of the warrant, to send to the Coffee County officer. But there wasn’t one in the file. So the clerk checked with the court, and found out that the warrant had been recalled. For whatever reason, the information never got from the Dale County court to the Dale County warrant database. The warrant clerk called the Coffee County warrant clerk immediately, and the warrant clerk immediately called the officer, but the arrest and search had already taken place.

At trial, Herring moved to suppress the evidence on the ground that the arrest was illegal, as the warrant it was based on no longer existed. The trial court said the evidence was admissible, because the officer did nothing wrong, and acted in good faith on information that the warrant was still outstanding.

On appeal, the Eleventh Circuit agreed that the Coffee County officer did nothing wrong. Any error was independent of that officer. The error was the result of negligence on someone else’s part, and was moreover a negligent inaction rather than some government action. The Circuit therefore held that the negligence was so attenuated from the officer’s actions that any benefit to be gained by suppression, and so the evidence was admissible under the “good faith” rule of U.S. v. Leon, 468 U.S. 897 (1984).

Writing for the majority, Chief Justice Roberts pointed out that, even if the search or arrest was unreasonable, the Exclusionary Rule doesn’t always apply. It’s a last resort only. He reiterated that exclusion is not a right of the individual, but is instead a deterrent. The benefits of a deterrent must be weighed against its costs.

Thus, when police have acted in “objectively reasonable” reliance on a warrant that was later held to be invalid, or on a statute that was later declared unconstitutional, or on a court (not police) database that mistakenly stated that an arrest warrant was outstanding, the Supreme Court has held that the evidence was admissible under the “good faith” rule. The Court had held that evidence should be suppressed only when the officer knew or should have known that the search was unconstitutional. Illinois v. Krull, 480 U.S. 340 (1987).

“Objectively reasonable” (or “good faith”) means “a reasonably well-trained officer would have known that the search was illegal, in light of all the circumstances.” It’s not a subjective test of what the officer actually intended, but rather a test of what he should have known. Here, there was no reason to believe that the Coffee County officer wasn’t being objectively reasonable in relying on the information from Dale County’s warrant clerk. So the officer did nothing requiring suppression.

The underlying error didn’t require suppression, either. Here, the clerical error wasn’t the result of a recklessly-maintained system. Nor was it the result of the police planting false information for the purpose of justifying false arrests later on. The kind of clerical error here is not something that the Exclusionary Rule could affect or deter meaningfully.

Roberts concluded by saying “we conclude that when police mistakes are the result of negligence such as that described here, rather than a systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’ In such a case, the criminal should not ‘go free because the constable has blundered.’”

In this opinion, Roberts’ reasoning was certainly sound. However, he amplified the erroneous viewpoint that the proper policy purpose of the Exclusionary Rule is to deter future misconduct. The policy is categorically not to deter. Deterrence is a purpose of punishment, and this is not a rule of punishment. Deterrence gives the police an incentive not to approach the line of impermissibility. That is precisely what the Rule is designed to avoid.

The Exclusionary Rule is not a rule of deterrence or of punishment, but is instead a rule of balancing — balancing individual rights with society’s interests in law enforcement. Roberts does get the concept, as in his discussions of balancing marginal utility against cost. But his repetition of the “deterrence” fallacy just confuses an otherwise clear argument.

Justice Ginsberg similarly the Exclusionary Rule in her dissent (joined by Justices Stevens, Souter and Breyer). Like Roberts, Ginsberg says the purpose is deterrence. But she goes even further to say that the Rule should be used to deter practically all police error.

This is a much more expansive purpose for the Exclusionary Rule (or as Ginsberg puts it, “a more majestic conception”). She goes so far as to say that any arrest based on carelessly-maintained database information would be unlawful, and would require suppression.

If the Rule were to be used as a deterrent, Ginsberg does make an argument that its marginal utility even in cases of carelessness, like this one, is sufficient to justify its use. Suppressing evidence could very well lead to reforms in the data management, to ensure that the same mistake doesn’t happen again. But exclusion is not the only means to that end, and is not even a very suitable means, as there is no actual pressure on the record-keepers to change their ways. The more effective means would be pressure from police leadership and political superiors to fix the process. Also, exclusion of evidence in County A is hardly likely to influence behavior in County B.

Justice Breyer issued his own dissent, joined by Justice Souter. In it, he makes the same error of ascribing deterrent purposes to the Exclusionary Rule, rather than the purpose of balancing interests. And as a result, he falls into the same trap of reasoning as Ginsberg.

Breyer wants a bright-line rule. Because of his focus on deterrence, he would draw the line between the police and the courts — if the error was made by court personnel, then they are not going to be deterred by suppression, so the Exclusionary Rule should not apply. But if the error was made by any police personnel, then the Rule should apply. Breyer fails to explain, however, how police database clerics are in any way deterred from negligent error by the suppression of evidence seized as a result of such error. He similarly fails to explain how court clerks are somehow different, so that they could not have been so deterred by suppression.

Ginsberg and Breyer’s arguments fall apart because they’re looking at suppression as a punishment, a deterrent, rather than as the result of a balancing of competing interests. Roberts gets it, but he too makes the same mistake to some degree. This decision seems to have muddied the waters, instead of clarifying the rule.

Oh well, better luck next time guys!

NYPD and DOJ Wiretap Fight: Each Accuses the Other of Endangering the Public

Friday, November 21st, 2008

pen-register.png

Over the summer, New York City’s police force demanded that the FBI and the Justice Department make it easier to get wiretaps on suspected terrorists. The feds refused, and the dispute has escalated ever since. The New York Times reports that correspondence has flown between the U.S. Attorney General and the Police Commissioner themselves, as “each accuses the other of mishandling terrorism cases and embracing an approach that made the public more vulnerable.”

Wiretaps are considered one of the most invasive state actions, and so any request for electronic eavesdropping is going to be put under enormous scrutiny before it is ever presented to a judge. Every “i” must be dotted, every “t” must be crossed, and no detail is too small to be overlooked. The slightest inadvertent error can result in a wire being deemed improper, resulting in the exclusion of all the evidence gathered as a result. No law enforcement agency wants to spend vast amounts of time and money on a wire investigation, only to have the evidence thrown out.

So prosecutors carefully prepare wire applications, dissect them, and then send them up the chain of command for approvals. In the DOJ, these internal approvals can take an extraordinarily long time. New York City prosecutors, with bureaus specializing in such applications, can turn around a wire application much faster. Although both tend to err significantly on the side of caution, to minimize the chance of error being found down the road, the feds are much more cautious than the city prosecutors, and will reject wiretap applications that would have passed muster in the DA’s office.

Also, federal wiretaps tend to be short and sweet, not often extending beyond the initial 30-day period normally authorized. Renewal of the authority requires another application, and there just isn’t time to jump through all the hoops while the evidence is still coming in. City-initiated wiretaps, on the other hand, can sometimes extend for 18 months or longer, as they lead to more phone lines and additional evidence.

So there is already a cultural divide between federal and city law enforcement when it comes to wiretaps. The feds are traditionally much more cautious and unlikely to request a wiretap,* while NYC law enforcement, though still very cautious, is not nearly so shy.

Now enter the FISA Court.

The Foreign Intelligence Surveillance Court is set up to review applications for warrants to eavesdrop on suspected spies or terrorists. The court must find probable cause that the target of the surveillance is a foreign agent or terrorist, that the wiretap is going to turn up evidence of such activities, and there is no reasonable less-invasive way to get the evidence.

Only the FBI and the DOJ have access to the FISA Court, however. So if the NYPD wants to get a warrant, it needs to submit it to federal scrutiny. That subjects their applications to much lengthier review, as a result, and also makes them more likely to be rejected and not presented to the court in the first place.

The NYPD now believes that its efforts are being thwarted, and accuses the feds of improperly blocking its wire applications.

So on October 27, police commissioner Ray Kelly accused the feds of putting the public at risk by being too nit-picky. He wrote that the feds were “constraining” critical terrorism investigations, and “doing less than is lawfully entitled to protect New York City,” so that “the city is less safe as a result.”

Four days later, attorney general Mike Mukasey wrote back saying that the city’s approach would be counterproductive, because they’d seek warrants that might exceed what the law allows, so that the evidence gathered could be thrown out, thereby making the citizens less safe.

Mukasey seems to see the FISA Court as little more than a rubber stamp. Presumably, if the court was doing its job, a warrant application that didn’t satisfy the law would be rejected by the court itself. But the DOJ appears not to trust the court to do its job, and so would act as a stand-in for the court.

Although the NYPD didn’t make that point, it did respond by putting the blame squarely on the DOJ for taking too long to review applications, and for applying “a self-imposed standard of probable cause which is higher than that required by Supreme Court precedent.”

As a former prosecutor who did quite a lot of wiretaps involving both city and federal authorities, your humble blogger will be very interested to see how this pans out. In the meantime, it looks like the fight is only getting started. Stay tuned.

* This perplexes the New York Times, which has long accused the Bush administration of trying to improperly extend its wiretapping authority and other national security powers. Many insiders, however, blame the administration for trying too hard to appease its opposition by limiting governmental powers and announcing that to the world, thereby only creating opposition where none previously existed. So while the criticism from the left about wiretapping and other legalities may have been undeserved, the administration has no-one to blame but itself.