The best advice you'll get in this class

And a preview of what you'll look through in the section on civil liberties.

An Ex-Cop's Guide to Not Getting Arrested.

Dale Carson is a defense attorney in Jacksonville, Florida, as well as an alumnus of the Miami-Dade Police Department and the FBI. So he knows a thing or two about how cops determine who to hassle, and what all of us can do to not be one of those people. Carson has distilled his tips into a book titled Arrest-Proof Yourself, now in its second edition. It is a legitimately scary book—369 pages of insight on the many ways police officers profile and harass the people on their beat in an effort to rack up as many arrests as possible.

"Law enforcement officers now are part of the revenue gathering system," Carson tells me in a phone interview. "The ranks of cops are young and competitive, they’re in competition with one another and intra-departmentally. It becomes a game. Policing isn’t about keeping streets safe, it’s about statistical success. The question for them is, Who can put the most people in jail?"

Rule #1:

Be Invisible to Police

Carson has four golden rules, the first of which is, "If police can't see you, they can't arrest you." The simplest application of this concept is that if you plan on doing something illegal, you should do it in the privacy of your home. Yes, you can be arrested while at home, but you can't be profiled sitting in your living room, and profiling is what you're trying to avoid.

The best part:

If crying fails, and you're willing to do whatever it takes to not go to jail, Carson advises you to "foul yourself so that the police will consider setting you free in order not to get their cruiser nasty." Vomit on your clothes. Defecate and urinate in your pants. Then let the officers know what you've done. If they arrest you anyway, you'll get cleaned and reclothed at the jail.

From the Washington Post: Judge: NSA’s collecting of phone records is probably unconstitutional

As reported by Ellen Nakashima and Ann E. Marimow:

A federal judge ruled Monday that the National Security Agency’s daily collection of virtually all Americans’ phone records is almost certainly unconstitutional.

U.S. District Judge Richard J. Leon found that a lawsuit by Larry Klayman, a conservative legal activist, has “demonstrated a substantial likelihood of success” on the basis of Fourth Amendment privacy protections against unreasonable searches.
Leon granted the request for an injunction that blocks the collection of phone data for Klayman and a co-plaintiff and orders the government to destroy any of their records that have been gathered. But the judge stayed action on his ruling pending a government appeal, recognizing in his 68-page opinion the “significant national security interests at stake in this case and the novelty of the constitutional issues.”

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” said Leon, a judge on the U.S. District Court for the District of Columbia. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

The strongly worded decision stands in contrast to the secret deliberations of 15 judges on the nation’s surveillance court, which hears only the government’s side of cases and since 2006 has held in a series of classified rulings that the program is lawful. It marks the first time a federal judge in open court has opined on the collection of lawfulness in a case not involving a criminal defendant.

A Justice Department spokesman, Andrew Ames, said Monday that the government was reviewing Leon’s decision. “We believe the program is constitutional as previous judges have found,” he said.

From Mother Jones: How Every Part of American Life Became a Police Matter

This touches on issues we raise in 2306 when we talk about criminal justice policy and the tendency of legislatures to try to solve certain problems by criminalizing them.

The author outlines the range of activities now criminalized and questions how far this has gone. Are we now, for all practical purposes, a police state?

If all you've got is a hammer, then everything starts to look like a nail. And if police and prosecutors are your only tool, sooner or later everything and everyone will be treated as criminal. This is increasingly the American way of life, a path that involves "solving" social problems (and even some non-problems) by throwing cops at them, with generally disastrous results. Wall-to-wall criminal law encroaches ever more on everyday life as police power is applied in ways that would have been unthinkable just a generation ago.

By now, the militarization of the police has advanced to the point where "the War on Crime" and "the War on Drugs" are no longer metaphors but bland understatements. There is the proliferation of heavily armed SWAT teams, even in small towns; the use of shock-and-awe tactics to bust small-time bookies; the no-knock raids to recover trace amounts of drugs that often result in the killing of family dogs, if not family members; and in communities where drug treatment programs once were key, the waging of a drug version of counterinsurgency war. (All of this is ably reported on journalist Radley Balko's blog and in his book, The Rise of the Warrior Cop.) But American over-policing involves far more than the widely reported up-armoring of your local precinct. It's also the way police power has entered the DNA of social policy, turning just about every sphere of American life into a police matter.

The Rise and Fall of Miranda

A useful video for my 2301s to watch prior to an upcoming discussion of the Bill of Rights. Miranda Warnings have been part of law enforcement since the 1960s, but for how much longer?

- Watch here.

The police need warrants needed to put GPS devices on cars.

This wraps up another case we first discussed in the fall.

From the Washington Post:

The Supreme Court ruled unanimously Monday that police must obtain a search warrant before using a GPS device to track criminal suspects. But the justices left for another day larger questions about how technology has altered a person’s expectation of privacy.

Justice Antonin Scalia wrote that the government needed a valid warrant before attaching a GPS device to the Jeep used by D.C. drug kingpin Antoine Jones, who was convicted in part because police tracked his movements on public roads for 28 days.

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ ” under the Fourth Amendment’s protection against unreasonable searches and seizures, Scalia wrote.

More from ScotusBlog, including links to all relevant court documents.

Does "stop and frisk" violate the principle of equal treatment before the law?

This story allows us to look ahead to our discussion of the 14th Amendment and the equal protection clause. Young black and Latino males tend to be stopped and searched far more than other people. Does this pose a constitutional problem?

- Wikipedia: Frisking.
- Legal Definition from the Free Dictionary.
- Comments from Legal Zoom.

Fourth Amendment RIP?

Grits for Breakfast points to several stories suggesting that the 4th Amendment may be increasingly irrelevant. Recent technological developments (GPS, wireless communicatons, credit card use) have put more and more private information in the public sphere, which previous court rulings have argued is fair game for investigators.

ScotusBlog: Review of the Court’s Fourth Amendment cases.

Scalia's Irrelevance?

Linda Greenhouse has an interesting take on Justice Scalia's notoriously snooty dissenting opinions. They are a sign of a general lack of impact on the court:

So the question raised by Justice Scalia’s most recent intemperate display remains: what does this smart, rhetorically gifted man think his bullying accomplishes?

It’s a puzzle. But having raised the question, I will venture an answer. Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little. Nearly every time he has come close to achieving one of his jurisprudential goals, his colleagues have either hung back at the last minute or, feeling buyer’s remorse, retreated at the next opportunity.

Ministers' report sees race bias in bond policies

From the Chron, a story that combines civil rights and civil liberties (procedural rights):

More than 15,000 people were collared in Harris County for misdemeanors in the final months of 2010, but 70 percent of white inmates were released on bond before trial, compared to 50 percent or less of Hispanics and African-Americans, a new report critical of detention practices shows.

White criminal defendants also generally had to pay lower bonds for their freedom, according to a report released by the Houston Ministers Against Crime. The group of politically connected pastors claims aggressively locking up those who have been accused - but not yet convicted - for crimes like fighting and trespassing costs taxpayers big bucks and harms poor communities "struggling under the ongoing financial crisis."
I can't find a website for Houston Ministers Against Crime, but they're a local interest group actively involved in policing issues. Here's a 2006 story about their support for a public defender's office.

Ashcroft v. al-Kidd

The Supreme Court will hear arguments on a case involving both the material witness statute and whether the Attorney General can be sued.

The case is Ashcroft v. al-Kidd.

- ScotusBlog. Argument preview: An old law in new guises?
- ScotusBlog: Ashcroft v al-Kidd.
- Wikipedia: Material Witness Statute.
- Wikipedia: Qualified Immunity Doctrine.

Councilwoman Jones draws scrutiny over handout

From the Chron, a story highlighting controversies over citizen's rights:

The city's Office of Inspector General is looking into a card distributed at a recent forum on police brutality in which City Councilwoman Jolanda Jones advises people never to speak with police.

"I would absolutely be concerned about anyone who would do anything to discourage citizens from speaking to police officers," Mayor Annise Parker said after Wednesday's City Council meeting. "That would be certain members of council who have put out written statements saying that citizens should never talk to police officers under any circumstances."

The card's advice for encounters with police at home includes the directive: "NEVER speak with the police. You have a 5th Amendment right to remain silent. Use it! Ask for & contact your lawyer." In another section, the card states: "If it is meant for you to speak with the police, do so ONLY after you speak with your lawyer and he/she gives you permission." . . .

Jones, a criminal defense lawyer, said the card is a quick legal reference to remind people of their Fifth Amendment right against self-incrimination, not a call to refuse to cooperate with police. She said she has passed out a version of the card for years, even before her election to the council in 2007.

"Are they saying that they're disappointed that I'm telling people their constitutional rights?" Jones asked. "It's a public service. Me being on the council does not trump the Constitution."

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.”

The Gates Arrest

The recent arrest of Henry Louis Gates Jr. at his home for disorderly conduct raises two issues central to the 2301 topics this week. The first concerns civil rights, the second civil liberties.

The civil rights question regards, no surprise, race. The term racial profiling has evolved to describe police activities that seem to target minorities largely on the assumption that they are more likely to commit crimes. Beyond profiling, the case also calls to mind cognitive studies that suggest that many instantaneous decisions are made subconsciously by people based on racial characteristics, just the same way that we make many on the spot decisions. Historically, police have been used as the mechanism by which certain groups are kept in their place, and certainly the news is still full of examples of people being accused of DWB, especially in neighborhoods where they are a minority. The question posed as a result of the recent arrest is whether this is still a problem, or have police distanced themselves from this past. Some argue that the arresting officer was within his proper authority to handcuff Gates since he popped off to the police, which leads to the question of civil liberties.

Wasn't Gates in fact using his freedom of speech to question a person granted authority by the state? Why is this illegal? Do we not have the right to question, quarrel or argue with a police officer without the risk of arrest? Is the handcuff in fact a means of suppressing speech? Colin Powell seemed to admit as much when he said you don't argue with the police. An interesting link from Liberty Papers makes the case that Gates was within his rights and that "police officers often seem to think the purpose of [disorderly conduct] laws is to punish people for talking back to cops. Christopher Hitchens agrees. Not only were Gate's free speech rights violated, but so was his right to be secure in his own home, as established by the 4th Amendment.

Concentrated Power Watch: The Houston Crime Lab and Prosecutors

From Grits for Breakfast:

Houston crime lab only reported prosecution friendly evidence.

How Can You Confront a Dead Witness?

The Constitution, given its simplicity, creates dilemmas. The freedoms it establishes for the public can also make it more difficult for government to ensure justice. A constitutional government is designed to do both. Supreme Court cases often involve determining how this can be done in a particular case.

In the case of Giles v. California, the Supreme Court will have to determine whether the 6th Amendment right of for defendants to confront witnesses is waived if the defendant killed the witness who may have left some information that accuses the defendant of a crime. This is called forfeiture by wrongdoing.