Philadelphia Student Claims School Violated Privacy With Web Cams On School-Owned Laptops

Wed, 24 Feb 2010 20:12:14 GMT

The parents of Blake Robbins, a 15-year-old student at Harriton High School, an elite suburban Philadelphia public school in the Lower Merion School District, have filed a lawsuit alleging that the school district violated Robbins’ privacy rights when it activated the webcam in his school-issued laptop. In response, the school district does not deny that it has remotely activated laptop webcams in the past. However, the school professed that it only did so to "locate a laptop in the event it was reported lost, missing or stolen so that the laptop could be returned to the student."

According to the complaint, Robbins learned of the school’s alleged use of the webcam when an assistant principal at Harriton High School, Lindy Matsko, cited evidence taken from the webcam on Robbins’ computer in support of the school’s accusation that he was using drugs. The family claims that the items Matsko perceived as “drugs” were actually candy.

While one would anticipate that the federal claims of the lawsuit would receive similar treatment in the district courts, whether in Pennsylvania or here in Washington, had this case arisen in Washington it would have implicated some interesting aspects of Washington privacy law. Washington’s Privacy Act prohibits all persons from eavesdropping or recording confidential communications. The Act prohibits the interception of “private communication transmitted by telephone . . . or other device,” or “private conversation” without the prior consent of all parties to the communication.

Police Officer

Tue, 23 Feb 2010 04:01:00 GMT

Andrew E. Taslitz recently posted his paper, titled “Police are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right” (forthcoming in Ohio State Journal of Criminal Law) on SSRN. Here’s the abstract. * * * Some Fourth Amendment scholars have embraced the idea that the courts should defer to police judgments [...]

Andrew E. Taslitz recently posted his paper, titled “Police are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right” (forthcoming in Ohio State Journal of Criminal Law) on SSRN. Here’s the abstract.

* * *

Some Fourth Amendment scholars have embraced the idea that the courts should defer to police judgments about reasonable suspicion and probable cause. The primary argument for deference is that much police reasoning is intuitive and unconscious, thus not accessible to systematic analysis. Yet, the argument continues, intuition is often more reliable than conscious thinking. This article examines this claim by exploring in depth the cognitive biases and abilities that serve respectively as obstacles to, and opportunities for, police making accurate judgments about individualized suspicion. The article concludes that requiring police consciously to justify their intuitions can improve their accuracy, that the greatest accuracy comes from constructing institutions in a way that combines the best of unconscious intuition with more systematic critique, and that police training can be improved in various ways to enhance cognitive accuracy about the individualized suspicion judgment.

* * *

For a sample of related Situationist posts, see “The Legal Situation of the Underclass,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” and “The Situation of Criminality – Abstract.”

Then what's the point in having a gun permit?

Mon, 04 Jan 2010 03:45:20 GMT

On July 21st, 2006, attorney Greg Schubert was walking on a sidewalk in the City of Springfield, Massachusetts, when officer J.B. Stern jumped from his police car with drawn gun pointed at Schubert's face. Schubert was lawfully carrying a pistol under his suit jacket (and wearing a suit and carrying a briefcase) and the officer saw the pistol. Although Schubert produced his concealed weapon permit, the officer detained Schubert anyway - making him stand in the road in front of the police car and then placing him in the backseat of the police car - while the officer tried to verify that Schubert's permit was valid. Ultimately the officer released Schubert but kept his pistol and his permit.

Schubert brought a 1983 action against the city and the officer for violation of his Fourth and Fourteenth Amendment rights (for detaining him unlawfully). The Massachusetts District Court granted summary judgment to the City and the officer (held that as a matter of law Schubert could not sue over what happened to him), and on December 23rd the First Circuit upheld the District Court's grant of summary judgment.

The First Circuit held that, as a matter of law, it is acceptable for an officer to point a gun at an attorney's face for carrying a concealed weapon, to detain him after he showed his identification and concealed carry permit to the officer, and to take the attorney's gun and permit.

Balko had a link to a critical article at the Examiner, and I was fairly incensed until I read the entire opinion. My final response is rather watered down after finding that the lawyer sued based on his detention but never pleaded a violation of his Second Amendment right to bear arms.

A 1983 claim must plead a violation of a constitutional right - in this case the lawyer pled a violation of his Fourth Amendment right to be free from unreasonable detention but did not mention the violation of his Second Amendment right to bear arms. I still disagree with the Court - once the lawyer showed the officer his permit that should have been it. The detention past that point was unlawful and the failure to return the pistol and license was theft.

Pointing a gun at the lawyer's face was extreme under the circumstances, but as the Court says the officer has a right to take measures to protect himself and the officer is in the best position to decide what is necessary. It makes the cop an asshole in this case, but I don't see where it is actionable, at least up to the point where the officer realized that Schubert had a permit.

Given the Court's language and the tone of the opinion, I think if Schubert had pled a violation of the Second Amendment the Court still would have granted summary judgment, but Schubert would have had a stronger position and better chance at taking the appeal further.

The general rule in 1983 actions, or any lawsuit against the government, is that the government wins. If the court can find any reason to shut down the lawsuit it will (imagine that - the government ruling in favor of the government). Although the First Circuit used the failure to plead the Second Amendment as an excuse to dodge the issues in the case, the opinion is a lesson on pleading police abuse cases - most 1983 actions are based on one of the first ten amendments (the Bill of Rights), and it will most likely be 1,2,4,5,6, or 8. Before filing your complaint, it is easy enough to count them on your fingers and make sure you did not miss something. If there is a gun involved in your case, there is a clue.

Supreme Court to Review Text Message Case; Primarily of Interest to Public Employers

dewestlind@stoel.com (Dennis Westlind) — Tue, 15 Dec 2009 16:43:48 GMT

Yesterday the United States Supreme Court agreed to consider whether a police officer has a reasonable expectation of privacy in text messages sent using his department-issued pager. The Ninth Circuit Court of Appeals ruled earlier this year that the officer had such a privacy right. Click here to read the opinion below in City of Ontario, California v. Quon.

In Quon, the employer, the City of Ontario, distributed to its police officers pagers with texting capability. The City then audited the use of text messages by the officers to determine whether overage charges may have been caused by personal use of the service. During the audit, it discovered that Quon had sent several personal, sexually explicit text messages. Quon sued the City, asserting violations of his right to privacy under the Fourth Amendment of the United States Constitution as well as under Article I, Section I of the California Constitution. The District Court dismissed Quon's suit after a jury found that the City conducted the audit to investigate usage, not misconduct. The Ninth Circuit reversed, holding that the City violated Quon's constitutional privacy rights by reading his private texts, and the City's articulated policies did not give Quon sufficient notice that his texts could by read by others to overcome his privacy rights.

What does this mean for employers? For most private employers, this case will have little or no impact. Federal privacy rights, such as those that come from the Fourth Amendment, apply only to public employers and not to private ones. Private California employers should watch out: California courts have sometimes applied state constitutional rights to private employers, and could rule that their employees have privacy rights in work-provided email and text systems. Still, it is a good practice for all employers, public and private and in all states, to adopt and distribute policies clearly stating that employees have no expectation of privacy in communications they make using employer-provided equipment and systems, such as email, text messages, cell phones, etc.

"Splitless and factbound."

annalthouse@gmail.com (Ann Althouse) — Mon, 14 Dec 2009 21:39:35 GMT

I.e., not certworthy, but the the Supreme Court took cert in the text messaging called Quon.

What the heck - Why did the Supreme Court take this case?

walterreaves@att.net (Walter Reaves) — Tue, 08 Dec 2009 14:24:27 GMT

Every year thousands of people ask the Supreme Court to review their case; the Court agrees to review only a handful. Generally, they will not agree to hear a case unless there is some issue they want to address; they either want to change the law, or maybe clarify. it For the most part, they could care less whether the lower courts reached the right result.

So when the court agrees to hear a case you generally expect some change in the law. The expectations were no different Michigan v. Fisher. The case involved the emergency search exception. Officers had been dispatched to a disturbance, and found a truck with a smashed windshield, damaged windows in the house, and blood on the hood of the truck. The saw Mr. Fisher inside the house - he was throwing things, and had a cut on his hand. The officers tried to enter, but the door was locked. When they asked Fisher if he needed help, he not so politely asked them to get off his property. When when officer tried to push the door open and enter the house, Fisher pointed a gun at him. Entry was eventually made, and Fisher was charged with assault with a dangerous weapon and possession of a firearm.

The Michigan trial court held a hearing, and decided the entry into the house was unreasonable. THe caes went back and forth, but the Michigan Court of Appeals eventually agreed with the trial court and affirmed its decsion. On Monday the Court reversed, and sent the case back to the Court of Appeals.

The unusual aspect of this case is not that the court reversed, but the grounds for doing so. Basically, they held the lower court reached the wrong result. The court didn't set forth any new law, or explain in more detail existing law. The opinion appears to be nothing more than a disagreement with the lower court - a court which found in favor of a defendant.

The court held in 2006 in Brigham City v. Stuart that police could enter a home where there was a "need to assist persons who are seriously injured or threatened with such injury". The court did nothing to explain or alter that holding. In fact they held that a "straightforward application of the emergency aid doctrine" dictates that the entry was reasonable.

So why did the court need to find the officer's actions were reasonable? That is something normally left to trial judges. There was no suggestion the trial judge didn't understand the law, or misconstrued it -he just reached the wrong result in the court's eyes.

I find it interesting that Justice Sotemayor joined Justice Stevens in dissenting. They both felt the court had no business making such "fact intensive" decisions. I don't know if that says much about her views on the fourth amendment, but it does say something about her view of the role of the 'Supreme Court.

In the end, this case did nothing to advance jurisprudence. So why did they waste they time and effort?

What the heck - Why did the Supreme Court take this case?

walterreaves@att.net (Walter Reaves) — Tue, 08 Dec 2009 14:24:27 GMT

In the end, this case did nothing to advance jurisprudence. So why did they waste they time and effort?

No notice to subscriber required when officers seize stored email from ISP

ALeibman@foxrothschild.com (Alain Leibman) — Fri, 30 Oct 2009 22:07:32 GMT

The usual protocol when agents execute a search warrant at an office or home is to leave a copy of the warrant with the person in control of the premises, often but not necessarily the owner. Rule 41(f)(1)(C) requires it. But what kind of notice is required when agents execute a search warrant to seized stored emails from a subject's internet service provider (ISP), such as Google or Hotmail or Verizon? Answer: none. to the subscriber.

A District of Oregon judge recently considered this question in a case involving a warrant served under the terms of the Stored Communications Act, 18 U.S.C. § 2703(a), which requires a search warrant -- as opposed to a mere subpoena -- if law enforcement officers wish to obtain e-mails stored for 180 days or less. In re Application of United States for Search Warrant, 2009 WL 3416240 (D. Ore., June 23, 2009). The magistrate judge presented with the government's application for a warrant granted the warrant but rejected the Government' s arguments that supplying the warrant to the ISP was sufficient notice under the SCA and that Rule 41's notice procedure was not applicable; the Government was initially ordered to provide notice of the seizure to the individual subscriber.

On an appeal by the Government, the district judge reversed. While the opinion contains a useful summary of search procedures under the involved provisions of the SCA and the interplay of the SCA with Rule 41, the rationale of decision was rather straightforward. The third party electronic context is no different than other third party contexts, such as when agents seize a package in the control of Federal Express. In the latter instance, a copy of the search warrant is permissibly left only with Fed Ex and there is no need to inform the sender or recipient of the package of its seizure. ISP's are analogous to Fed Ex, and notice to the individual subscriber to the ISP is unnecessary.

inetman2

jr@jeremyrichey.com (Jeremy Richey) — Tue, 27 Oct 2009 04:03:12 GMT

Case Name: People v. McDonough (.pdf) Court: Appellate Court of Illinois, Fourth District Date Decision Filed: 10/20/09 In this case, the defendant’s car was parked on the slim shoulder of a dark and busy road. A state trooper saw the car and approached it in order to see if the defendant needed help. The trooper turned on his [...]

Massachusetts Supreme Judicial Court Allows Use of Secret GPS To Track an Individual's Movements, But Requires Police To Obtain Warrant

blogs@foleyhoag.com (Foley Hoag) — Wed, 23 Sep 2009 15:10:00 GMT

Earlier this year, the Wisconsin and New York state courts split on whether police may install a covert GPS tracking device on a suspect's car without a warrant. On September 17, the Massachusetts Supreme Judicial Court addressed the GPS tracking device issue, ruling that Article 14 of the Massachusetts Declaration of Rights requires a warrant before such a device may be installed and used.

The defendant, Everett Connolly, was a suspected drug dealer and who was investigated by police for more than a year. The investigation included surveillance and controlled drug purchases by confidential informants and, towards the end of the surveillance period, by an undercover officer. Based on this investigation, the police applied for a warrant to place a GPS tracking device on Connolly's van for fifteen days. The application was granted and Connolly was eventually arrested (based on a separate arrest warrant), tried and convicted. He argued to the SJC that, among other things, "surreptitious GPS monitoring without a warrant constitutes an unreasonable search and seizure that violates the Fourth Amendment . . . and art. 14 of the Massachusetts Declaration of Rights." He based this argument on the theory that, although police had a search warrant, they continued to obtain information from that warrant after it had expired.

Read on for more detail and analysis of the SJC's opinion.

The majority ruled that "installation and use of the GPS device in the circumstances of this case was a seizure requiring a warrant," but held that the warrant obtained had not expired. After declining to make a ruling under the Fourth Amendment, the majority concluded that a warrant was required because the installation and use of a GPS tracking device on a vehicle constituted a seizure under art. 14 of the Massachusetts Declaration of Rights. Regarding installation, the majority reasoned that it required entry by police into the van for an hour, operation of the van's electronic system and power from the vehicle. Regarding use, the majority reasoned that the government's use and control of the vehicle to track its movements interfered with the defendant's interest in the vehicle, as the police were using private property to obtain information for their own purposes.

Three justices concurred in the judgment. They agreed with the majority that installation of a GPS device constituted a seizure requiring a warrant. However, they argued that the use of a vehicle to conduct GPS monitoring did not constitute a seizure of the vehicle; rather, they believed that such use invaded the reasonable expectation of privacy of any person authorized to drive the vehicle, and that such invasion was better characterized as a search. According to the concurrence, only by focusing on the "privacy interest at risk from contemporaneous GPS monitoring . . . will we be able to establish a constitutional jurisprudence that can adapt to changes in the technology of real-time monitoring, and that can better balance the legitimate needs of law enforcement with the legitimate privacy concerns of our citizens.

As I noted in an earlier post, the use of GPS devices to monitor suspects' movements is bound to become a hot-button issue over the next few years. The courts that have addressed the issue have expressed great concern about the threat to privacy posed by the rapid progression in monitoring technology. What is interesting about the SJC's decision is that it appears the majority was attempting to craft a more narrow decision by basing its holding on the seizure of the vehicle, which implicates an individual's property interest. The concurrence's position is arguably broader, more subjective, and more flexible, as it requires analysis of a person's expectation of privacy. One wonders, then, if the issue behind the scenes with the SJC was not what result to reach, but how broad to stretch in the opinion.

Links:

The SJC's opinion in Commonwealth v. Connolly
Security, Privacy and the Law, "Courts Split on Whether Police Can Use GPS to Track Individual's Movements Without a Warrant," Jeff Bone, 5/13/09

Statistics, Science, and Sloppy Thinking

Fri, 11 Sep 2009 18:17:14 GMT

This article doesn't exactly focus on magical thinking, but it does emphasize the importance of a good grasp of scientific and mathematic principles, especially for attorneys and judges. Michael I. Meyerson, University of Baltimore School of Law, has written Significant...

This article doesn't exactly focus on magical thinking, but it does emphasize the importance of a good grasp of scientific and mathematic principles, especially for attorneys and judges.

Michael I. Meyerson, University of Baltimore School of Law, has written Significant Statistics: The Unwitting Policy Making of Mathematically Ignorant Judges, forthcoming in the Pepperdine Law Review for 2010. Here is the abstract.

This article will explore several areas in which judges, hampered by their mathematical ignorance, have permitted numerical analysis to subvert the goals of our legal system. In Part II, I will examine the perversion of the presumption of innocence in paternity cases, where courts make the counter-factual assumption that regardless of the evidence, prior to DNA testing, a suspect has a 50/50 chance of being the father. In Part III, I will explore the unnecessary injection of race into trials involving the statistics of DNA matching, even when race is entirely irrelevant to the particular case. Next, in Part IV, I will discuss how courts use race- and gender-based statistics to reduce damages in tort cases for women and racial minorities, and silently assert that past racism and sexism will continue. In the final section, I will examine how judges have improperly allocated the risk of error in cases such as securities fraud, so as to reward those who have attempted to manipulate stock prices illegally.

Download the article from SSRN here.

Search of computer without explicit authorization in search warrant violates Fourth Amendment

ALeibman@foxrothschild.com (Alain Leibman) — Fri, 11 Sep 2009 15:14:18 GMT

When law enforcement officers execute a search warrant in a suspect drug case and the warrant does not explicitly provide for the search of computers in the residence, the officers run afoul of the Fourth Amendment if they search a bedroom computer without securing it and seeking a new warrant, according to the Ninth Circuit.

In United States v. Payton, 2009 U.S. App. LEXIS 15969 (9th Cir., July 21, 2009), .local police obtained a warrant to search for drugs, as well as sales ledgers and financial records of the person controlling the subject residence. No drugs were found, but a police officer happened on a bedroom computer, and with a few mouse clicks discovered and viewed child pornography. The appeals court, reversing the trial court, held that the search of the computer was improper.

Although recognizing that the search of a computer generally is more intrusive than searches of other containers, the Payton court emphasized that there is not special categorical protection against computer searches in the Fourth Amendment. However, in this case the warrant did not specify computers as things to be searched; while ledgers and financial records are capable of being stored in a computer, the lack of specificity in the warrant combined with the lack of circumstantial indicia that ledgers and financial records were on this computer (i.e., there was an absence of such documents in proximity to the computer), to render the search unreasonable.

The better practice, and one the court expressly intended to encourage, would have been for the officers to secure the computer and seek a second warrant specifically oriented toward its search. Such a practice would better accord with "the special considerations of reasonableness involved in the search of computers."

Fri, 28 Aug 2009 23:59:53 GMT

Eighth Circuit Court of Appeals affirms conviction for child pornography; defendant's claim that governments search of his computer that was hooked up peer to peer with other computers through Lime Wire program was not an illegal warrantless search. 083183P.pdf 08/14/2009 United States v. Harold Stults U.S. Court of Appeals Case No: 08-3183 District of Nebraska - Omaha [PUBLISHED] [Smith, Author, with Riley and Colloton, Circuit Judges] Criminal case - criminal law and sentencing. Users of peer-to-peer file sharing software like LimeWire do not have a reasonable expectation of privacy in files they make available to others using the software, and the warrantless search of defendant's computer through LimeWire did not violate his Fourth Amendment rights; affidavit the police used to obtain a warrant to search defendant's home and seize his computer established probable cause to believe child pornography would be found; defendant's prior conviction for attempted sexual assault on a child was sufficient to invoke the ten-year mandatory minimum sentence under 18 U.S.C. Sec. 2252(b)(2); under this court's precedents, the district court did not err in applying the five-level enhancement under Guidelines Sec. 2G2.2(b)(3)(B) as the government produced sufficient circumstantial evidence to meet its burden of proving defendant expected to receive child pornography when he used LimeWire; sentence was not unreasonable; special conditions of supervised release which controlled defendant's contact with children, access to pornography and use of the Internet and cameras were related to his offense and were reasonable measures to protect the public.

Will Americans follow orders to take flu shots? (click here)

jaghunter1@gmail.com (jaghunter1@gmail.com) — Wed, 12 Aug 2009 16:06:29 GMT

Thanks to Army Captain Pamela Barnett and Barbara Stephan

Copyright © 2009 The JAG HUNTER

DOT Reinstates Observed Urination Drug Testing Rule for Safety-Sensitive Positions

dewestlind@stoel.com (Dennis Westlind) — Thu, 30 Jul 2009 15:43:53 GMT

Yesterday the Department of Transportation (DOT) reinstated its rule that employers must conduct observed urination drug testing for all return-to-duty and follow-up tests for transportation workers in safety-sensitive positions. The new regulations will apply to workers in safety-sensitive positions in the aviation, motor carrier, rail, transit, maritime, and pipeline industries. Click here to read the DOT rule, which will take effect August 31.

This rule isn't new; as noted by the World of Work, the DOT issued the same rule a year ago. However, the D.C. Court of Appeals stayed implementation of the new rule until July 1 of this year, when it held that the rule was neither arbitrary nor capricious and did not violate employees' Fourth Amendment rights. Click here to read the court's decision in BNSF Railway Co. v. U.S. Department of Transportation.

Why the need for such strict scrutiny? According to the rule, observation is necessary "to allow the observer to check the individual for prosthetic or other cheating devices." Seriously. Such things do exist. The most famous is the Whizzinator, used by celebrities including actor Tom Sizemore. Now there's an endorsement. If you have employees that are subject to the new rule, just hope they don't suffer from shy bladder syndrome, or things are going to get really complicated.

You Just Got Pwned!

rick@rhdefense.com (Rick Horowitz) — Mon, 13 Jul 2009 14:13:03 GMT

Most of my writing lately has had to be devoted to motions. As California courts increasingly ignore the law, it seems more important — I’m not sure why, perhaps at least for future generations, sort of “a la the Declaration of Independence” — to document things, rather than try to wing it with the more [...]

In the course of working on a motion, I ran across this new argument, which can only be titled “You Just Got Pwned!”

In Pennsylvania v. Mimms (1977) 434 U.S. 106, the United States Supreme Court held it proper for an officer to order a motorist out of an otherwise lawfully stopped vehicle. This added intrusion into the motorist’s liberty is so minimal when compared with legitimate concerns for officer safety that the order is reasonable even when routinely made in a simple traffic stop. (Id. at p. 111.) Subsequently the United States Supreme Court also held that the bright line Mimms rule applies equally to ordering passengers out of vehicles pending completion of routine traffic stops to promote officer safety. (Maryland v. Wilson (1997) 519 U.S. 408, 414-415.) The High Court in Wilson held that a police officer for reasons of officer safety may, “as a matter of course,” order the passengers of a lawfully stopped car to get out of the vehicle. (Id. at p. 410; see also, People v. Hoyos (2007) 41 Cal.4th 872, 892-893.)

But what if the officer doesn’t like people outside of the car? I mean, just because one officer feels the promotion of “officer safety” requires people to get out of the car, doesn’t mean every officer thinks so. Some officers might think it “promotes officer safety” for passengers to stay in the car.

No problem!

These ruling [sic] have been extended by California courts to permit officers to also order passengers to remain seated during the stop. (People v. Castellon (1999) 76 Cal.App.4th 1369, 1374-1376.) Additionally, for safety reasons officers may order a passenger who begins to exit the car to get back inside. (People v. Vibanco (2007) 151 Cal.App.4th 1, 9-13.)

What if they like you out of the car, but they really are enjoying your company, or the opportunity to have their own living toy dolls to position however and whereever they want?

No problem!

Similarly, the officers may order all passengers to get out of the car and sit on the curb during the traffic stop despite the lack of reason to suspect them of wrongdoing. (Ibid.)

Of course, this gives the passengers standing to challenge the stop and any evidence seized during the stop on Fourth Amendment grounds and may even lead to lawsuits against officers for rights violations. Nevertheless,

[t]he propriety of the officer’s order that the occupants either alight or exit the vehicle turns only on whether the initial traffic stop was lawful. (Maryland v. Wilson, supra, 519 U.S. at p. 410; People v. Saunders (2006) 38 Cal.4th 1129, 1134-1135.) Finally, ["][c]onsistent with the Fourth Amendment, detention following a Mimms/Wilson order may continue at least as long as reasonably necessary for the officer to complete the activity the Mimms/Wilson order contemplates.” (People v. Hoyos, supra, 41 Cal.4th at p. 894 [here during the period of time the car was inventoried prior to impound].)

Incidentally, the brief from which I’m quoting likes this “period of time the car was inventoried prior to impound” for the case that prosecutor is dealing with, even though no inventory was ever taken; no claim of an inventory search was ever made until this brief was written; no inventory sheet was ever produced.

What I particularly like about this brief is the obvious point it makes about “officer safety.” That short phrase has become a kind of talisman for the police. Utter those magical words and the courts will sanction anything an officer does: constitutions, statutes and precedential law be damned.

But lets not forget about the officer’s discretion to decide whether his order that someone remain inside the car, or exit the car, is necessary for officer safety; because as I noted, not all officers will agree on whether they want the people inside or outside. Some will want people standing; some sitting; some folded in half. But only if Officer Simon Says. Because officer safety is whatever the officer says it is.

The same thing used to happen with another government which famously ignored the rule of law:

By refusing to protect citizens against government regulations, they gave the police a free hand, while at the same time granting the police the sole right to define what was legal. (Ingo Müller, Hitler’s Justice: The Courts of the Third Reich (1991) 49.)

Hitler’s courts clearly recognized the need to allow police officers to be the final arbiters of what was necessary and legal. California’s courts are just now beginning to get with the program.

The bottom line of this prosecutor’s argument, though, is this: you’re in a car which was stopped on the road? Driver or not — lawbreaker or innocent bystander — you just got pwned!

School's Strip Search Deemed Unconstitutional

tsorensen@williamskastner.com (Todd Sorensen) — Wed, 01 Jul 2009 18:52:25 GMT

In May 2009 this blog reported on oral arguments made before the United States Supreme Court in Redding v. Safford United School District. To view the original blogpost, setting for the core facts underlying the dispute, click here.

On June 25, 2009, the Supreme Court issued its opinion, finding that the school’s strip search of 13 year-old Savanna Redding violated the Fourth Amendment because “there were no reasons to suspect the drugs presented a danger or were concealed in her underwear.” In the absence of such immediate danger or evidence that the student was concealing drugs in her underwear, school officials could not make “the quantum leap from outer clothes and backpacks to exposure of intimate parts.”

The Court attempted to soften the blow to school administrators by acknowledging that the administrators’ motives in this case appeared pure, but nonetheless “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.”

To view the complete Supreme Court opinion, click here.

Once Upon A Time: A Tale Of Search & Seizure

rick@rhdefense.com (Rick Horowitz) — Thu, 18 Jun 2009 17:24:59 GMT

Once upon a time, in the land that would one day become the United States of America, law enforcement officers of the King of England were allowed by the King to stop and search citizens of the land without the need for specific warrants. The Birth of the Fourth Amendment Back then, the King owned the land. [...]

The Birth of the Fourth Amendment

Back then, the King owned the land. The only thing the King’s law enforcement officers needed was a desire to stop and search the person, or his wagon, stagecoach, horse, ship, or boat. If someone did ask “why are you doing this?,” one of two types of answers would probably be given.

The first type of answer might be something like, “the person was acting nervous when he saw me.” The King’s officer might go on to say, “The person kept glancing at a box in the corner of his wagon and then over his shoulder. He appeared to be nervous and was sweating.”

The second type of answer was more succinct: “I am an officer of the King. I am authorized to search anyone, at any time, to protect the King’s interests.”

Of course, sometimes no reason was given at all. The person objecting to the actions of the King’s officer was simply beaten into submission.

Shortly after the success of the Great Rebellion — which itself happened because people got tired of this attitude of the King and His Officers — the United States was born. Partly as a reaction to the treatment they remembered suffering from the King’s officers and partly to ensure that no future law enforcement officers of the new government ever used these excuses again, the people of the United States demanded the addition of a Bill of Rights — the first 10 Amendments to the Constitution — which included a requirement that officers of the government in the future must first get a search warrant if they wanted to search a person’s things.

Thus, the Fourth Amendment of the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

But as with most stories that begin with the words “once upon a time,” so, too, is this one — including the requirement of a warrant based upon probable cause — only a fairy tale.

The Death of the Fourth Amendment

At least since the early 1980s, in most cases the United States Supreme Court has “repeal[ed] the Fourth Amendment warrant requirement.” United States v. Ross, 456 U.S. 798, 827, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1986) (Marshall, J., dissenting).

Courts like to say that:

[O]ur analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that “searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions. Arizona v. Gant, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009).

But just about everything these days comes under a specifically established and well-delineated exception. Even stuff that doesn’t seem to come under a specifically established and well-delineated exception actually does. As E.T.A. Hoffman wrote in his German satirical tale, “Master Flea”:

When reminded that, after all, a crime had to have been committed for there to be a criminal, Knarrpanti opined that once the criminal was identified, it was a simple matter to find out what his crime had been. Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, with an introduction by Detlev Vagts (1992), p. 3.

Where one of the modern versions of the King’s officers feels the need to perform a search, it’s a simple matter to tailor his testimony at any subsequent suppression hearing so as to come under one of the exceptions. Having identified the criminal, it’s a simple matter to find an exception to search for the evidence of his or her crime.

Searching People On The Street

Want to search a person on the street? No problem! True, the United States Supreme Court has repeatedly stated:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

But in the same case just cited, the Court went on to hold that:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Terry v. Ohio, supra, at 30.

Who decides whether in light of his experience, the officer had reason to believe criminal activity may be afoot? Well, it says “his” experience, doesn’t it? Another attorney recently told me of a case where the fact that “a white guy was hanging out with some suspicious-acting black guys in an area of town where white guys don’t normally hang out” was used to justify the search of the group. In “his” experience, the officer said, this was indicative that something was fishy; these guys were up to some kind of no good fishiness. And since it was night time, well, the cop just had to search them for the protection of himself and others. The court bought that explanation.

But Terry was “confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer,” wasn’t it? Terry v. Ohio, supra, at 29. What about drugs and other contraband? No problem! “[S]o long as the officers’ search stays within the bounds marked by Terry,” officers may seize drugs detected during a patdown search. Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

And if the person ends up arrested for something, an “inventory search” done at the station will uncover anything hidden in pockets or sometimes even body cavities. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1448 (1991); United States v. Andrade, 784 F.2d 1431, 1433 (1986).

Vehicular Searches

Want to search someone’s car? No problem!

[Y]our [sic] a trooper, youve [sic] got an entire state to follow someone if you need to in order to find some kind of violation. 9 [sic] times out of 10 if i [sic] can follow a car a few miles i [sic] can find some sort of violation to stop someone. From a comment by an Oklahoma member of officer.com.

And if law enforcement thinks the items they want are in a car, this is just way cool, because the United States Supreme Court — after, as noted above, giving the obligatory nod to the idea that “searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment,” Arizona v. Gant, supra, at 1716 — recently reiterated that:

[C]ircumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense might be found in the vehicle. Arizona v. Gant, supra, at 1714.

No warrant necessary. United States v. Ross, 456 U.S. 798, 800, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Although cars are impounded almost daily, locking up a car and applying for a warrant is too difficult. Id. at 807, fn. 9, 815-816. Thus, the convenience of law enforcement makes applying to a magistrate for a warrant unnecessary, even though the United States Supreme Court, speaking out of the other side of its mouth, has said,

[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. Arizona v. Gant, supra, at 1723, quoting Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)

Guess what makes it reasonable to believe there is evidence of a crime in the car? While all sorts of things help, the most frequently cited reason is “looking nervously at the box in the corner of his wagon and then over his shoulder.” Modernized, of course. See In re H.M., 167 Cal.App.4th 136, 144-145, 83 Cal.Rptr.3d 850 (2008); United States v. Nikzad, 739 F.2d 1431, 1433 (Cal. 1984); but see also, United States v. Hernandez-Alvarado, 891 F.2d 1414, 1418-1419 (Ariz. 1989). This is, in fact, the most common explanation given in the courts here in Fresno, Madera, Kings and Tulare counties where I am a criminal defense lawyer.

There’s another little irony in this. Although we’re repeatedly told that law enforcement officers are trustworthy — so trustworthy, in fact, that their word is usually accepted even over videotape evidence showing the contrary — courts have repeatedly held that if a car is impounded, a search is justified without a warrant in order to prove the police have not stolen anything from the car while it was impounded. South Dakota v. Opperman, 428 U.S. 364, 369-371, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Apparently, this prevents theft by the police, because they won’t steal during an inventory search; they might if one is not done. I guess this is because although they might steal, they won’t lie; so inventories will always be accurate and should always be done.

Therefore, given that it is not a violation of the Fourth Amendment to arrest a driver who pisses off the officer, with subsequent impound of the car, this provides the ultimate “catch-all” exception for vehicular searches. Atwater v. City of Lago Vista, 532 U.S. 318, 354-355, 371, 121 S.Ct. 1536, 149 L.Ed.2d. 549 (2001). Even when the car is not impounded, prosecutors use this rule to argue “inevitable discovery.” See New York v. Class, 475 U.S. 106, 119, fn., 106 S.Ct. 960, 89 L.Ed.2d 81 (1986); United States v. Andrade, supra, at 1433.

Probation, Parole & Consent: Since When Is Anyone’s Home A Castle?

No sexism is intended by me in pointing out that it was once said,

A man’s home is his castle.

Want to search a house? No problem!

With one out of every thirty-two Americans under correctional supervision, you’re almost certainly able to do it under the exception for a “probation search.” This lets you search every room in the house, regardless of whether or not the doors are locked to prevent the probationer from having access to that area of the house. This is possible because not only do probationers and parolees have to agree to search conditions in order to get probation or parole, but courts — including the California Supreme Court — have held that these conditions can be used as a pretext for searching the home to find evidence to use against third parties.

In other words, if “Gayla” agreed to be subject to warrantless searches so that she could get probation, then “Cheryl” and “William” will also be subject to warrantless searches because they live with “Gayla.” And it doesn’t matter that the police never intended to search for evidence that “Gayla” was in violation of her probation. As long as the police know that “Gayla” lives in the house, they can search it to find evidence against “Cheryl” and “William.” People v. Woods, 21 Cal.4th 668, 681, 88 Cal.Rptr.2d 88 (1999). And they don’t even need a reasonable suspicion that there is evidence of any crime. Id. at 675. They don’t need a reason; they are society’s officers and they are basically authorized to search at any time to protect society’s interests.

In theory, if there is an area of the home that is not jointly controlled by the probationer and the target, a warrant is required to search that area. Woods, 21 Cal.4th at 682. In reality, this is not an issue. Is the target’s bedroom door unlocked? Obviously, the probationer could have access to this room and therefore jointly controls it. Is the target’s bedroom door locked to prevent access to the probationer? Hey, you just entered the house to do a search! What if the target decides to destroy the evidence before you return with a warrant? Ker v. State of California, 374 U.S. 23, 40-41[83 S.Ct. 1623, 10 L.Ed.2d 726] (1963). Officers and courts refer to the need to search under that situation as being one of “exigent circumstances.” Id.

Besides probationers and parolees, other people living in your house can also give consent. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); People v. Howard, 166 Cal.App.2d 638, 651, 334 P.2d 105 (1959). If you’re home, maybe you can do something to stop it. Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). But if you’re not….

No problem! You can afford a criminal defense attorney, can’t you?

The Accused Himself/Herself Consents

Finally, there is the situation where the accused person has actually consented to the search. United States v. Drayton, 536 U.S. 194, 206-207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). For the most part, this makes sense. But you’d be surprised at the number of people who “consent” to being searched when they know the police have no reason to search them and when the people being searched know they have contraband on them and where, later, the only people who remember anyone consenting to anything are the police.

Conclusion

Now things aren’t quite as bad as I’ve presented them above. Once in a blue moon, a court will grant a suppression motion, allegedly on some principle of law and another court will uphold that decision even on appeal. I’m not exactly sure how this happens, although I’ve actually written more than a few motions that made it happen. Generally speaking, when it does happen, the stakes are not high. Typically, it will involve some small amount of drugs where the client doesn’t have a long history of dealing. Or it might be a case where someone was charged with carrying a concealed weapon, but there was no evidence it had been used to hurt anyone. Perhaps the rule the court follows is that they’re willing to uphold the Constitution so long as actual bad guys don’t get away with significant crimes.

The truly scary thing from a constitutional standpoint is the number of loopholes, or “exceptions.” And, as I indicated above, the particularly scary thing is the exception for inevitable discovery. This is the exception that swallows the Amendment. Generally speaking, the courts apply it in this really odd way: If police officers would have done their job properly, they might have discovered the evidence. Thus, inevitable discovery applies.

Alert readers will have noticed that I explicitly demonstrated how the two types of answers given by the King’s Officers prior to the existence of the United States are alive and well today, despite the best efforts of our Founders. The third possibility that I mentioned is, as well. Numerous cases exist wherein people have been beaten by the police for questioning them. As one officer has testified,

We just beat people up in general.

….

To show who was in charge. We were in charge, the police. David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (2000) pp.24-25.

As I wrote in my last post, if you want to see how this works out in real life, try challenging a law enforcement officer’s actions.

Special thanks to both Scott Greenfield and Garrick Byers for the reference to Atwater v. City of Lago Vista, 532 U.S. 318, 354-355, 371, 121 S.Ct. 1536, 149 L.Ed.2d. 549 (2001).

When is a Police Roadblock Illegal?

ronchapman@bellsouth.net (Ron Chapman) — Mon, 01 Jun 2009 00:06:14 GMT

You have probably seen police roadblocks when you were out driving your car, and you may have even been stopped at one, but did you know that before the police are allowed to actually set up a roadblock they are first required to prepare written guidelines so that the officers conducting the roadblock do not violate motorists' rights by, for example, stopping motorists because of their race or ethnicity?

In the case of State of Florida v. Jones, the Florida Supreme Court stated that "[w]ritten guidelines should cover in detail the procedures which field officers are to follow at the roadblock. Ideally, these guidelines should set out with reasonable specificity procedures regarding the selection of vehicles, detention techniques, duty assignments, and the disposition of vehicles." According to the United States Supreme Court decision in Brown v. Texas, when the police stop someone and that stop "is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits."

Seven years after the Jones case was decided, the case of Campbell v. State of Florida arose. In the Campbell case, the Jacksonville Florida Sheriff's Office set up a roadblock to check for traffic violations. The only written instructions for implementing the roadblock stated merely, "Stop motorists on Mandarin Rd. for a traffic safety check. Have a motorcycle [with] radar on each end of check to monitor speed." In addition to the written instructions, the officer in charge of the roadblock gave oral instructions to the officers who actually stopped the motorists. One of the oral instructions was to stop every car passing through the roadblock.

Things did not, however, go exactly according to plan. Several times during the five-hour roadblock, traffic backed up which created a safety concern. In response, the officers on scene used their discretion on different occasions to simply waive some cars through the roadblock while continuing to stop and check others.

One of the motorists who was stopped was a man named Phillip Campbell. When the police discovered that Campbell had a suspended driver's license, he was arrested and taken to the county jail where the police found cocaine and marijuana in one of his socks. Campbell's lawyer later filed a motion to suppress requesting that the judge suppress the narcotics found in his sock because the roadblock violated the Fourth and Fourteenth Amendments to the United States Constitution as well as the Jones decision.

Campbell's case eventually reached the Florida Supreme Court, and that Court ended up siding with Campbell finding that "the limited police directives used here do not limit police discretion and fall short of the discretion-limiting written set of uniform guidelines specifically required by us in [the Jones case]." The High Court continued on to say that "[i]n this country, the police are not vested with the general authority to set up 'routine' roadblocks at any time or place. Rather, law enforcement was placed on notice by our holding in Jones that the stopping and detaining of a citizen is a serious matter that requires particularized advance planning and direction and strict compliance thereafter."

Twenty-one day delay in obtaining warrant to search container seized under exigent circumstances without a warrant causes seizure to be unconstitutional

ALeibman@foxrothschild.com (Alain Leibman) — Fri, 22 May 2009 21:44:32 GMT

The Supreme Court has long held that police may without a warrant seize a container for which there is probable cause to believe holds contraband or evidence of a crime, if there are exigent circumstances, and then later obtain a warrant for the search of its contents. United States v. Place, 462 U.S. 696 (1983). A warrantless seizure based on probable cause may extend for a far longer period than a so-called Terry stop based only on reasonable suspicion. Compare United States v. Lewis, 902 F.2d 1176 (5th Cir. 1990) (seizure of package overnight based on probable cause does not violate Fourth Amendment); United States v. Jodoin, 672 F.2d 232 (1st Cir. 1982) (three day delay supported by probable cause) with Terry v. Ohio, 392 U.S. 1 (1968) (ninety minute detention of traveler's luggage based only on reasonable suspicion was improper).

But even exigent seizures grounded on probable cause must be reasonable and the police must act with alacrity in obtaining a follow-on search warrant or the seizures will be held to violate the Fourth Amendment. An example is provided by United State v. Mitchell, 2009 U.S. App. LEXIS 8258 (11th Cir., April 22, 2009). Federal agents had interviewed Mitchell in his home in connection with a child pornography investigation. Once Mitchell confessed to subscribing to child pornography websites and storing images on his computers, agents requested his consent to search a desktop computer, which Mitchell declined. However, since Mitchell had admitted that the computer in question held contraband materials, agents opened the central processing unit and removed its hard drive, where the images were believed to be stored.

The lead agent then left for a training program, and it was not until 21 days later that a search warrant was obtained to examine the contents of the hard drive. Illegal images were found, and Mitchell pled guilty to their receipt, subject to appealing the denial of his suppression motion in the district court. Mitchell prevailed as the court of appeals reversed the district court. While the exigent seizure of the hard drive, analogous to the container in the above cases, was not impermissible, a delay of three weeks in securing a search warrant was unreasonable and unjustified. The delay rendered the seizure illegal and the evidence was thrown out.

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