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.

The Supreme Court says policy must get a warrant before searching the contents of a cell phone

This raises issues covered in 2305's section on civil liberties and and the Supreme Court.

A unanimous court ruled that police need warrants if they want to search the cell phone of a person they have arrested. Police generally do not need warrants in such cases, but cell phones are argued to be different because of the information they contain. It is the first time the court has ruled on searches on cell phones. The data on them can only be searched if a warrant is issued to authorize it.

In the material on civil liberties I try to cover the exceptions the court has allowed for many of them. This ruling narrows those exceptions.

- Click here for NYT coverage.

In a sweeping victory for privacy rights in the digital age, the Supreme Court on Wednesdayunanimously ruled that the police need warrants to search the cellphones of people they arrest.

While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies.

“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”

Chief Justice John G. Roberts Jr., writing for the court, was keenly alert to the central role that cellphones play in contemporary life. They are, he said, “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The case is Riley v California.

- Click here for the decision.
- Click here for ScotusBlog's background on the case.

The court argued that by being allowed to search through the cell phone without a warrant, police were able to go on "fishing expeditions" and broadly search for anything they can potentially arrest someone for. This defeats the purpose of warrants.

Here's an author that is not that satisfied by the decision:

In 1926, the court said, Judge Learned Hand “observed … that it is ‘a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.’”

But “if his pockets contain a cell phone, that is no longer true.”

That’s why police need a warrant to search your phone.

And this the court did not say: Search warrants are not that hard for police to get. They go to a judge or magistrate and argue that they have probable cause to believe there may be criminal activity involving you. They don’t have to prove you’ve done anything.

You are not consulted.

Also, police need a warrant to search your phone but others — private investigators, industrial spies, identify thieves or your kid’s nosy friend (or your kid) — do not. The Constitution protects you from actions by the government, not anyone else.

And the court said police don’t always need a warrant. In “exigent” circumstances — a suspect texting an accomplice about a bomb or a child abductor who may have information about a child’s location on his phone — they need not waste time calling a judge.

The message from the court: Be careful what you put on your phone.

From the ACLU: A summary of the major civil liberites decisions from the 2012 Supreme Court term

Click here for the entire document.

Here are some of the major cases decided - each provides insight on the contemporary nature of civil liberty disputes in the 21st century:

Free Speech

- Agency for International Development v. Alliance for Open Society International, Inc.

. . . the Court struck down a requirement that organizations participating in a federally - funded program to combat the spread of HIV/AIDS must have a policy explicitly opposing prostitution and sex trafficking. Writing for the majority, Chief Justice Roberts drew a distinction between conditions that affect how federal funds are spent and conditions that reach beyond the funded program. Here, he found, the challenged condition crossed that line because it dictated what organizations could say in parts of their program that are entirely supported by private funds. Moreover, he explained, the government’s willingness to allow grant recipients to create affiliated entities that are not bound by the same condition is unsatisfactory in this context. If the affiliate’s speech can be attributed to the grant recipient, it is merely an invitation to hypocrisy by allowing the same organization to express differing views on the legalization of prostitution. If the affiliate’s speech cannot be attributed to the grant recipient, it does nothing to preserve the First Amendment rights of the grant recipient.

Probable Cause

- Florida v. Jardines.

. . . the Court held that the use of a drug - sniffing dog on the front porch of a home constitutes a search that violates the Fourth Amendment in the absence of consent or a warrant. The majority opinion, written by Justice Scalia, rested on traditional property notions. It also rejected the dissent’s reliance on the doctrine of implied consent. According to Justice Scalia, the doctrine of implied consent allows visitors to approach the front door without committing trespass but does not extend to an investigative
search by the police who are seeking evidence, not entry. Justice Kagan’s concurring opinion, joined by Justices Ginsburg and Sotomayor, argued that the police conduct in this case violated the defendant’s reasonable expectation of privacy, as well as his property rights.

- Maryland v. King

. . . the Court upheld DNA testing of arrestees without the need for individualized suspicion. Writing for the majority, Justice Kennedy characterized DNA testing as an administrative tool for identifying the arrestee and thus legally indistinguishable from photographing and fingerprinting. Applying a rule of reasonableness, he then ruled that the state’s interest in proper identification outweighed the minimal intrusion of a DNA swab. Finally, Justice Kennedy emphasized that Maryland’s law prohibits the use of the DNA sample for any person other than identification. In dissent, Justice Scalia argued that the only sense in which the DNA sample is used for identification is to identify the arrestee as a suspect in an unrelated crime. Because this purpose is part of normal law enforcement it must, in his view, be supported by individualized suspicion linking the person arrested to the unsolved crime. Summing up, Justice Scalia wrote: “I doubt that the proud men who wrote the charter of or liberties would have been eager to open their mouths for royal inspection.”

Self Incrimination

- Salinas v. Texas.

. . . the Court ruled that a defendant who does not expressly invoke his Fifth Amendment rights when questioned by the police prior to arrest or other custodial interrogation cannot object when the prosecution comments at trial on his failure to respond to police questioning. Justice Alito’s plurality opinion was joined by Chief Justice Roberts and Justice Kennedy. In a concurring opinion, Justice Thomas and Justice Scalia would have gone further. In their view, the Fifth Amendment never prevents the prosecution from commenting on a defendant’s silence – including a defendant’s decision not to testify at trial – and the Court’s past decisions to the contrary were wrongly decided.

Double Jeopardy

- Evans v Michigan.

. . . the Court held that a trial court’s directed verdict of acquittal bars retrial under the Double Jeopardy Clause even if it is based on a misinterpretation of the governing statute or, as here, a misunderstanding of the elements of the offense. Writing for the majority, Justice Sotomayor explained that a jury verdict of acquittal based on legally erroneous instructions still triggers the Double Jeopardy Clause, and found no meaningful distinction for double jeopardy purposes between a jury verdict and a directed verdict.

Is Zimmerman's indictment based on evidence or politics?

Here's an exhaustive post - embedded with comments from various law types - that probable cause was likely not sufficient to justify the indictment.

And now his lawyers want a new judge.

Seminole Circuit Judge Jessica Recksiedler disclosed late last week that her husband works with CNN legal analyst Mark NeJame, who was approached by Zimmerman earlier in the week about representing him after his original lawyers quit. NeJame declined, but said he gave Zimmerman a short list of alternatives, including Mark O'Mara, who Zimmerman ultimately chose as his legal counsel shortly before his arrest.

O'Mara told CNN late Monday night after filing his request that he expected Recksiedler to grant it and recuse herself.

Can a Facebook post be used as probable cause?

Apparently one has been already. It involved methods for dowloading child pornography.

Commentary from Eugene Volokh here.

What does "probable cause" apply to?

I'm not completely sure I understand the consequences of this court decision, but its seems to suggest that police can use their authority to search under the probable cause standard in the 4th amendment not only for items related to the accusation that one has committed a crime, but for items that will allow the prosecution to build the case against the accused that involves others not related to the crime.

Evidence can be obtained that can "impeach witnesses and respond to potential defenses."

This seems to me to be a problematic expansion of search and seizure, but this is beyond my expertise.

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.

Expanding Probable Cause

The right against unreasonable searches and seizure was weakened by the Supreme Court in a unanimous decision in the case of Virginia v. Moore.

Virginia police violated procedure by searching a man they pulled over for an offense punishable by a citation. A citation does not justify a search, only an arrest allows that to happen, but he was searched anyway and the police found 16 grams of crack cocaine.

Among other things the court saw no historical reason why citations should be treated differently than arrests and that there is a legitimate government interest served in allowing the search to continue based on the discretion of the police at the scene. That's my best take anyway.

The case uses as precedence a notorious dispute from Lago Vista where a woman was arrested an detained for not wearing seat belts and having seat belts on her kids.