From the Dallas News: How police felt stonewalled by Dallas Diocese at every turn in sex abuse investigation

An example of due process, specifically a search and seizure. The back and forth between Dallas police and the Diocese interests me.

- Click here for the article.

An affidavit Dallas police used to obtain a search warrant Wednesday to raid Dallas Catholic Diocese offices laid out allegations against five priests and suggested the church subverted police efforts to obtain more information.

The affidavit, signed by Detective David Clark, who is working full-time on sex abuse allegations within the Diocese, sought to seize Diocese records because the church hadn’t handed over all the records it had about allegations against the priests.

All five priests are on the Diocese’s list of 31 “credibly accused” priests, which the church released in January. That list included only accusations against priests that the Diocese concluded were credible after a review by former law enforcement officials and the Diocean Review Board.

Grits for Breakfast: Pop Quiz on Fourth Amendment and the criminalization of the normal

For our look at due process in both 2305 and 2306, and especially for out look at appellate courts in Texas in 2306.

- Click here for the article.

Pop Quiz from the Texas Seventh Court of Appeals: Which of the following are NOT an indicia of drug trafficking under Texas law?

• Breathing.
• Having two hands.
• Driving a clean vehicle.
• Looking at a peace officer.
• Looking away from a peace officer.
• A young person driving a newer vehicle.
• Driving in a car with meal wrappers.
• Driving carefully.
• Driving on an interstate.

The answer, according to a majority opinion from the Seventh Court of Appeals written by Chief Justice Brian Quinn, is that only the first two cannot be considered suspicious behavior that justifies an investigative detention, according to Texas courts. A dissent by Justice Campbell scolded his colleagues for failing to defer to the trial judge and "assume the court made implicit findings of fact supporting its ruling that are supported by the record." But the majority opinion is quite a read, lamenting that "most anything can be considered indicia of drug trafficking to law enforcement personnel."

Apparently if the police want to search you for drug possession for any reason, the Texas Courts say they can.

What is "Stop and Frisk" anyway?

It was an area of disagreement between the candidates in last nights debate - and there seemed to be disagreement on whether the courts have ruled the practice unconstitutional.

A few items to help process all of it - or some of it.

From Cornell's LII:

A brief, non-intrusive, police stop of a suspect. The Fourth Amendment requires that the police have a reasonable suspicion that a crime has been, is being, or is about to be committed before stopping a suspect. If the police reasonably suspect the person is armed and dangerous, they may conduct a frisk, a quick pat-down of the person’s outer clothing. See Terry v Ohio, 392 US 1, (1967).

Notice the use of the term "reasonable suspicion" rather than "probable cause."

Reasonable suspicion allows the search - probable cause allows the arrest.

Because this stems from the case of Terry v Ohio - click here for it - these are also called Terry Stops.

Here is Cornell's definition of reasonable suspicion:

Reasonable suspicion is a standard used in criminal procedure. It is looser than probable cause. Reasonable suspicion is sufficient to justify brief stops and detentions, but not enough to justify a full search. When determining reasonable suspicion, courts consider the events leading up to the brief stop and a decide whether these facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion. Courts look at the totality of the circumstances of each case to see whether the officer has a particularized and objective basis for suspecting legal wrongdoing.

For more on Stop and Frisk in New York City click here.

Does it deter crime? Does it impact minority populations disproportionately?

- Click here for that.

From Slate: Blood Tests and Bad Lawyering. The Supreme Court finds unity in the face of bumbling attorneys and a tough Fourth Amendment case.

Things apparently did not go well at oral for the lawyers in this 4th Amendment case argued yesterday.

- Click here for the article.

Here's a taste:

“So that excuses you from a constitutional requirement?” Justice Sonia Sotomayor says. “We’re now going to bend the Fourth Amendment?”

Justice Elena Kagan jumps in.

“I think what people are asking you,” she says patiently, “is to try to get some sense of the real-world harms here.” Imagine a system where cops could get a warrant within 10 or 15 minutes, Kagan offers. “What would be the problem with just relying on a system like that?”

McCarthy begins to talk about Fourth Amendment complications, and Kagan butts in.

“But I’m asking about your practical needs,” she reminds him. Yet McCarthy continuesto talk about the complexities of Fourth Amendment law, seemingly ignoring Kagan’s question.

“I did not understand that answer!” Kennedy says. “We’re saying: Suppose it takes 15 minutes. What then?”

“Well … ” McCarthy begins, but Kennedy just gives up and starts lecturing.

“You’re asking for an extraordinary exception here,” he tells McCarthy. “You’re asking for us to make it a crime to exercise what many people think of as a constitutional right!”

A flustered McCarthy starts citing cases, but Breyer cuts in again.

“None of us want an answer in terms of law!” he says. “We want to know a practical fact!” Could North Dakota create a workable insta-warrant system—and if so, would a warrant requirement for blood tests be reasonable?

McCarthy says he wants to “step back here” then babbles for a few seconds.

“You’re not answering the question,” Kennedy says flatly.

When McCarthy’s time runs out, he is replaced at the lectern by Kathryn Keena, who is, to everybody’s astonishment, even worse than McCarthy. Keena begins by summarizing her autobiography. “Having grown up 20 miles from the North Dakota border and attending college in the Fargo-Moorhead area,” she tells the justices, who look visibly confused and irritated, “I’m very familiar with what the realities are in the rural area. And yes, it may be possible to get a search warrant in every case. But if that’s what this court is going to require, in Minnesota, we are going to be doing warrants for blood draws in every case. And that is not what this court wants.”

A majority of justices spent the last several minutes suggesting that, in fact, warrants are exactly what the court wants. Everyone looks befuddled.

“What?” Breyer says. “Why?”

And it goes on like this for 10 excruciating minutes, during which Keena accidentally reveals that cops bring drivers to stations for chemical tests anyway—meaning they could easily request warrants on the ride there. I will spare you the bulk of Keena’s outrageously bumbling performance, but I must share this closing colloquy. When Sotomayor gives Keena a brutally frank summary of her untenable position, Keena does not respond.

- Oyez: Birchfield v. North Dakota.

If a police officer has stopped you for a traffic violation, can he make you wait for a drug sniffing dog?

No - according to 6 people on the Supreme Court.

- Click here for the scoop from ScotusBlog.

From ScotusBlog's analysis:

The Court issued a seemingly simple rule today in Rodriguez v. United States: “A seizure for a traffic violation justifies a police investigation of that violation” – not more — and “authority for the seizure . . . ends when tasks tied to the traffic infraction are – or reasonably should have been—completed.” Because being stopped by police officers for traffic violations is a common occurrence for us all (not just drug dealers), this six-to-three decision probably gives some (small) comfort to many. Traffic stops have to be reasonably short, and unless there is reasonable suspicion of some other crime, officers can’t use the stop as a subterfuge for extraneous investigation. Most specifically, says Justice Ruth Bader Ginsburg’s opinion for the Court, officers can’t prolong a traffic stop just to perform a dog-sniffing drug search.

But as Justices Samuel Alito and Clarence Thomas point out in separate dissents, the world is usually more complicated and nuanced than sound-bite summaries can accommodate. In fact, says Justice Thomas, the majority’s rule will lead to “arbitrary results,” depending on how efficient, or technology-adept, the individual officer who stops a car is. And Justice Alito predicts, whether cynically or just realistically, that officers will now be trained on the “prescribed” protocols that will still enable them to conduct traffic-stop dog sniffs if they want to. (He says he “would love to be the proverbial fly on the wall” for such training sessions – really?) Moreover, he finds it “perverse” that if the officer in this case had not waited for a back-up officer for safety reasons, he could have performed a solo dog sniff without any constitutional problem.

- Here's more from Oyez.
- Plus an analysis from CityLab.

From Oyez: Shifting Scales: How the Robert's Court is interpreting the 4th Amendment

- Click here for it.

We haven't spend enough time on searches and seizures this semester - other things have got in the way - but here's a good way to not only catch up to it, but see how the extent of these protections vary depending on the composition of the Supreme Court and how they interpret the specific cases that come to it.

From the Dish: Digital Stakeouts Are Dirt Cheap

Andrew Sullivan points out that technology is making surveillance cheaper and easier - which raises the appropriate civil liberties concerns.

- Click here for the story.

If unreasonable searches are easier to do, one assumes they will be done.

A related story: It Costs the Government Just 6.5 Cents an Hour to Spy on You

In United States v. Jones, five Supreme Court justices held that a man’s reasonable expectation of privacy was breached after police tracked his movements on public roads for 28 days using a GPS device. The majority in the 2012 opinion, however, stopped short of articulating a clear rule other than Justice Alito’s finding that “the line was surely crossed before the 4-week mark.”

Using the Jones ruling as a baseline, Bankston and Soltani calculated and compared the costs of different location tracking methods used by police. Traditional surveillance methods like covert foot and car pursuits cost $250 and $275, respectively, per hour per target, according to their estimates. Another common method, which the Supreme Court has approved, involves two agents tracking a suspect’s movements from their police vehicle through a radio-based transmitter affixed to a target’s car or slipped in his bag at a cost of $105 to $113 per hour.
Newer surveillance technologies were significantly cheaper, they found. The total price tag of tracking a suspect using a GPS device, similar to the one in Jones, for instance, came out to $10 an hour over one day, $1.43 per hour over a week and $0.36 per hour over a month. Another relatively new technique, obtaining a suspect’s location through his or her cellphone signal with the carrier’s assistance, yielded similar results. As of August 2009, fees for obtaining cellphone location data from carriers ranged from $0.04 to $4.17 per hour for one month of surveillance. After tabulating their results, Bankston and Soltani concluded that the total cost of using a GPS device to track a suspect over 28 days (the method rejected in Jones) was roughly 300 times less expensive than the same tracking using a transmitter (technology approved by the Supreme Court) and 775 times less expensive than using the five-car pursuit method (also approved). Meanwhile, the cost of using transmitter-surveillance technology was only 2.5 times less expensive than undercover car pursuit.

As data mining, wiretaps and domestic drones become the new norm for police departments at a cost of a few cents a day, we need to have a frank discussion about where our Fourth Amendment protections are heading. In advocating their cost-based approach for determining the legality of different surveillance technologies, the researchers say they do not “equate police efficiency with unconstitutionality” but rather attempt to preserve the degree of privacy that existed in the Framers’ era. As Justice Alito quipped in Jones, we must remember that absent “a very tiny constable … with [the] incredible fortitude and patience” hiding out in the trunk of a carriage, it would have been impossible for George Washington’s colonial law enforcement authorities to have carried out anything near the level of surveillance that today’s police forces can do at the drop of a dime.

ScotusBlog: US v. Jones.

Metadata is not protected by the Fourth Amendment.

Foreign Policy magazine finds this troubling.

The mere collection of data about telephone and internet usage is not a violation of the 4th Amendment. That only becomes an issue when that data is searched for patterns of usage.

The use of drug sniffing dogs without a warrant limited by the Supreme Court

The court had more to think about than just gay marriage this week.

From the NYT:

The Supreme Court on Tuesday limited the ability of the police to use drug-sniffing dogs outside homes.

The case concerned Franky, a chocolate Labrador retriever who detected the smell of marijuana outside a Florida house used by Joelis Jardines. Based on Franky’s signal, the police obtained a warrant to search the house, and they found a marijuana-growing operation inside.

Mr. Jardines moved to suppress the evidence, saying that using Franky to sniff around his residence was an unreasonable search barred by the Fourth Amendment. The Florida Supreme Court agreed, and so did a majority of the United States Supreme Court.

The 5-to-4 decision in the case, Florida v. Jardines, No. 11-564, featured an unusual alignment of justices. Justice Antonin Scalia, a member of the court’s conservative wing, wrote the majority decision. He was joined by Justice Clarence Thomas, a frequent ally, along with three of the court’s more liberal members, Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Justice Scalia said the Fourth Amendment, which prohibits unreasonable searches, is particularly concerned with the home and its immediate surroundings. Allowing a dog on a six-foot leash to roam outside a residence, he said, was “an unlicensed physical intrusion” that was different in kind from visits from, say, salesmen, Girl Scouts or trick-or-treaters.

“To find a visitor knocking on the door is routine (even if sometimes unwelcome),” Justice Scalia wrote. “To spot that same visitor exploring the front porch with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police.”

- Click here for the actual opinion of the court (click on Florida v Jardines).
- An NYT editorial comapres this case to Kyllo v US.

Do mandatory blood tests for drunk driving violate the 4th Amendment?

photo credit

I've wondered this for years. Finally a case has ended up in the Supreme Court and we will find out.

From the NYT's coverage:
Prosecutors in Missouri, supported by the federal government, came to the Supreme Court on Wednesday with a big request: They wanted the justices to rule that the police do not need warrants to obtain blood samples in drunken-driving investigations.

There seemed little enthusiasm among the justices for that categorical approach. Instead, the argument turned into a search for a middle ground that would take account of the practical realities of roadside stops, body chemistry and the administration of justice in the digital age.

On the one hand, the natural dissipation of blood alcohol means that time is of the essence when people suspected of drunken driving are pulled over and refuse to consent to a breath test. Obtaining a warrant, moreover, takes time.

On the other hand, several justices expressed discomfort with what Chief Justice John G. Roberts Jr. called the “pretty scary image” of government-sanctioned bodily intrusions involving sharp needles.

From Diane Rhem The Constitution Today: Fourth Amendment

Click here for a radio interview on the 4th Amendment and whether placing a GPS tracking device on a car without a warrant is an unreasonable search.

From the NYT: Protect Our Right to Anonymity

This promises to be a hugely consequential Supreme Court case:

IN November, the Supreme Court will hear arguments in a case that could redefine the scope of privacy in an age of increasingly ubiquitous surveillance technologies like GPS devices and face-recognition software.

The case, United States v. Jones, concerns a GPS device that the police, without a valid warrant, placed on the car of a suspected drug dealer in Washington, D.C. The police then tracked his movements for a month and used the information to convict him of conspiracy to sell cocaine. The question before the court is whether this violated the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures of our “persons, houses, papers, and effects.”
- The cases' docket, from ScotusBlog.

Mopery

Probable Cause?

This is a new one for me: Mopery.

Mopery is a vague, informal, and usually humorous name for minor offenses. The word is based on the verb to mope, which originally meant “to wander aimlessly”; it only later acquired the overtones of “bored and depressed”. The word mope appears to have first been used in the 16th century, and appears in Shakespeare's works.

It has been used in certain jurisdictions as a legal term to mean (for example) “walking down the street with no clear destination or purpose”. Like loitering and vagrancy laws, mopery is sometimes used by law enforcement to detain individuals seen as “unsavoury”, as the police believe they have prevented them from committing a clearer or more dangerous crime.

Are Drug Sniffing Dogs Reliable?

Maybe Not. From Reason:

For the first few years I had her, I was impressed by my late dog Harper's uncanny ability to assess people's character. She hated every crappy landlord and bad roommate. Barked at them. Snarled at them. Wouldn't go near them. But if I brought home a date I liked, Harper, a Shar Pei/Labrador mix, would curl up right next to the woman and turn on the charm. It took me several years to figure out that my dog wasn't a good judge of character; she was just good at reading me. She liked the people I liked and disliked the people who rubbed me the wrong way. For dogs descended from lines bred for protection and companionship, this talent makes sense. A dog adept at distinguishing friend from foe was likely to be kept around and bred, and one very good way to tell friend from foe is to read your master's body language.

My confusion about what was going on in Harper's head reflects a common misconception that is also apparent in the ways dogs are used in criminal investigations. When we think dogs are using their well-honed noses to sniff out drugs or criminal suspects, they may actually be displaying a more recently evolved trait: an urgent desire to please their masters, coupled with the ability to read their cues.

Several studies and tests have shown that drug-sniffing dogs, scent hounds, and even explosive-detecting dogs are not nearly as accurate as they have been portrayed in court.

Warrantless Cell Phone Searches OK'ed in California

From Law and Disorder:

The contents of your cell phone can reveal a lot more about you than the naked eye can: who your friends are, what you've been saying and when, which websites you've visited, and more. There has long been debate over user privacy when it comes to various data found on a cell phone, but according to the California Supreme Court, police don't need a warrant to start digging through your phone's contents.

The ruling comes as a result of the conviction of one Gregory Diaz, who was arrested for trying to sell ecstasy to a police informant in 2007 and had his phone confiscated when he arrived at the police station. The police eventually went through Diaz's text message folder and found one that read "6 4 80." Such a message means nothing to most of us, but it was apparently enough to be used as evidence against Diaz (for those curious, it means six pills will cost $80).

GPS and the Right to Privacy

From Time Magazine:

Government agents can sneak onto your property in the middle of the night, put a GPS device on the bottom of your car and keep track of everywhere you go. This doesn't violate your Fourth Amendment rights, because you do not have any reasonable expectation of privacy in your own driveway — and no reasonable expectation that the government isn't tracking your movements.

That is the bizarre — and scary — rule that now applies in California and eight other Western states. The U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, recently decided the government can monitor you in this way virtually anytime it wants — with no need for a search warrant.

This fits both 2301 and 2302. What is the extent of privacy and our security against unreasonable searches and seizures? What make a search unreasonable anyway? And how might the current Supreme Court decide these questions? This also makes clear the degree to which our understanding of the Constitution is impacted by improvements in technology.

Sobriety Checkpoints Return

Just in time for the holiday weekend, Montgomery County will bring back sobriety checkpoints in order to combat drunk driving.

The checkpoints, which allowed police to stop random motorists and check to see if they were drunk without any actual evidence that they were in fact drunk (like driving erratically), were used quite often in the 1980s, but were challenged in the courts. They were argued to be illegal searches, in violation of the 4th Amendment.

The U.S. Supreme Court disagreed in 1990 (Michigan v. Sitz), the greater interest provided by discouraging drunk driving outweighed the individual right to be free from unreasonable searches, but many state argued that these searches violated their constitutions, including the Texas Court of Criminal Appeals. Montgomery County officials claim that their's is not an unconstitutional program because they will only test drivers who commit traffic violations ( I have no idea if that will in fact prove constitutional if challenged -- is commiting a traffic violation probably cause that one is drunk?).

It will be a no refusal program, meaning that you can be punished for refusing to submit to a sobriety test.

For background:
- Opinion.
- Anatomy of a DWI "no refusal weekend."
- Austin DWI Attorney.
- Texas Senate Bill 298. (news item on the bill)
- State Sobriety Checkpoint Laws.
- Checkpoints on Twitter.

This applies to both 2301 and 2302. It involves how the constitution helps define the relationship between government and the individual, but it does so in a very problematic area, one where we might in fact want some governmental intervention. No one wants to share the road with drunk drivers. Its a perfect illustration of the balancing act the courts have to engage in when they consider the relative merits of individual liberty and the greater interests of society.

2302s might want to pay attention to the legislation linked to above -- which would have allowed expanded use of checkpoints has it not died in committee. You might also want to take a look at the Supreme Court case above.

PS: Can we really tell who is drunk?

Two Bits on Compelled Testimony

Two stories from Grits for Breakfast raise questions about 4th and 5th Amendment issues.

The first concerns neuroscience's increased ability to map brain activity and the role it might play in criminal proceedings. Is a scan compelled testimony? Can a search warrant be issued for a brain scan?

The second concerns false confessions and whether they are coerced or persuaded.

An Illegal Seizure?

From the Chronicle:

A new Texas law allowing police to draw blood from DWI suspects without a judge's OK is riling defense attorneys, pleasing prosecutors and has crime labs gearing up for more work.

The law, which takes effect Sept. 1, also has sparked debate among constitutional experts, including some who are troubled by the prospect of allowing the state to invade a person's body on suspicion of a crime.

Police will be allowed to order blood drawn from a person suspected of driving while intoxicated without judicial review under certain circumstances, including instances in which the suspect is a repeat offender, a passenger died or in which a child under 15 was a passenger in the vehicle.

“The real problem is they've taken authority away for judicial review, and it's now at the sole discretion of police officers,“ said Houston lawyer Doug Murphy, who co-chairs the DWI committee of the Texas Criminal Defense Attorney's Association. “There are no checks and balances. Once you give police officers sole discretion, one branch of government can run amok.”

Dr. Paul on the Tobacco Bill

Our very own Ron Paul argues that the recently passed Family Smoking Prevention and Tobacco Control Act violates the Constitution:

The Family Smoking Prevention and Tobacco Control Act will give sweeping new powers over tobacco to the FDA. It will require everyone engaged in manufacturing, preparing, compounding, or processing tobacco to register with the FDA and be subjected to FDA inspections, which is yet another violation of the Fourth Amendment. It violates the First Amendment by allowing the FDA to restrict tobacco advertising in multiple ways, as well as an outright ban on advertising any cigarettes as light, mild or low-tar. The FDA will have the power of pre-market reviews of all new tobacco products, and will impose new user fees, meaning taxes, on manufacturers and importers of tobacco products. It will even regulate the amount of nicotine in cigarettes.

We have a right to make bad decisions:

My objections to the bill are not an endorsement of tobacco. As a physician I understand the adverse health effects of this bad habit. And that is exactly how smoking should be treated – as a bad habit and a personal choice. The way to combat poor choices is through education and information. Other than ensuring that tobacco companies do not engage in force or fraud to market their products, the federal government needs to stay out of the health habits of free people. Regulations for children should be at the state level. Unfortunately, government is using its already overly intrusive financial and regulatory roles in healthcare to establish a justifiable interest in intervening in your personal lifestyle choices as well. We all need to anticipate the level of health freedom that will remain once government manages all health care in this country.

Regarding the first point, I'm reasonably sure that advocates would argue that the bill falls under the Commerce Clause, so he may not be convincing in his argument. I'm unfamiliar with the argument that an inspection is a search and seizure, but I'll do some homework on it. Tobacco advertisement has also been restricted for years so I'm also unsure about the strength of the First Amendment argument.

He raises an important point in the later paragraph about the role that government should play regarding lifestyle choices. One might argue however that certain lifestyle choices place costs on others and then become subject to governmental intervention. I also think that proponents of the law would question whether smoking is really a choice in the conventional sense. It's an addictive product, so by definition it is not a choice once one become addicted--but then again one could say that we can make a choice to become addicted (I'm wincing while I write that though). The law's backers might say that this is not about individuals and their choices, but firms and their efforts to promote the use of an addictive substances.

Does that make the law reasonable?