From Radiolab: Eye in the Sky

For our look at the 4th amendment, and privacy - among other things.

You are never not monitored, but neither are criminals.

- Click here for the article.

In 2004, when casualties in Iraq were rising due to roadside bombs, Ross McNutt and his team came up with an idea. With a small plane and a 44 mega-pixel camera, they figured out how to watch an entire city all at once, all day long. Whenever a bomb detonated, they could zoom onto that spot and then, because this eye in the sky had been there all along, they could scroll back in time and see - literally see - who planted it. After the war, Ross McNutt retired from the airforce, and brought this technology back home with him. Manoush Zomorodi and Alex Goldmark from the podcast “Note to Self” give us the low-down on Ross’s unique brand of persistent surveillance, from Juarez, Mexico to Dayton, Ohio. Then, once we realize what we can do, we wonder whether we should.

From Politifact: Donald Trump and Lester Holt clash over whether stop-and-frisk is constitutional in New York

More detail regarding an issue brought up in Monday's debate.

Turns out Trump and Holt are kinda right and kinda wrong.

For 2305 this illustrates the role of the federal courts in overseeing local policing, and it touches on the 4th Amendment, due process, equal protection, constitutional interpretation among other topics. For 2306, this helps us look ahead to criminal justices and the local use of police powers, in addition to federalism.

- Click here for the article.

As it turns out, Holt and Trump are both a little bit right and a little bit wrong. But Trump's more wrong than Holt.

Stop-and-frisk is the practice of a police officer stopping and questioning a person (the stop), then patting the person down for weapons (the frisk). Stops and frisks are legal, in New York and everywhere else.

In its decision in the 1968 case Terry vs. Ohio, the Supreme Court ruled 8-1 that an officer can legally stop a person if the officer has reasonable suspicion that criminal activity is afoot. And if the officer has a reasonable suspicion that this person is armed, he or she can legally frisk the person for weapons. Because of that reasonable suspicion standard, the court said these stops would be consistent with the Fourth Amendment, which protects against unreasonable search and seizure.

A 2013 case before the U.S. District Court in Manhattan, Floyd vs. City of New York, raised the issue of the constitutionality of New York City’s stop-and-frisk policies between 2004 and 2012.

Judge Shira Scheindlin found that New York City had been conductingunconstitutional stops and frisks on two grounds: Officers were stopping and frisking people without reasonable suspicion, in violation of Terry and the Fourth Amendment; and a disproportionate number of those stopped and frisked were minorities, in violation of the equal protection clause of the 14th Amendment.

"Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites," Scheindlin wrote in her opinion. "For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband."

So Holt was right to note that a court found New York City had an unconstitutional stop-and-frisk policy because police had been disproportionately targeting black and Hispanic people.

But the Floyd case was specific to New York City’s particular way of conducting stops and frisks between 2004 and 2012. Scheindlin did not rule all stops and frisks unconstitutional, and her findings were consistent with the Supreme Court’s decision in Terry. Scheindlin ruled that New York City could continue to conduct stops and frisks as long as they made some changes.

"Stop-and-frisk was not outlawed," said Andrew Schaffer, former deputy commissioner for legal matters for the New York Police Department and an adjunct professor at New York University Law School. The ruling only sought to correct a supposed problem of officers making stops without a reasonable suspicion of criminal activity and disproportionately stopping black and Hispanic people.

Schaffer added, "The Floyd decision in New York did not and could not overruleTerry."
"The judge made it very clear that she was not finding stop-and-frisk as a general practice unconstitutional," said David Rudovsky, a leading civil rights attorney and senior fellow at the University of Pennsylvania Law School.

So Holt’s claim — "stop-and-frisk was ruled unconstitutional in New York" — isn’t quite precise because it makes it seem as if the judge decided that all stops and frisks were unconstitutional in New York, when really her ruling said New York had to stop and frisk differently. New York cops still stop and frisk today.

But it also isn’t quite correct for Trump to call Holt’s claim "wrong" because that implies there was no finding of unconstitutionality in New York’s practices or that Scheindlin’s ruling was tossed out, when really it still stands.

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 the USA today: Supreme Court allows searches based on outstanding arrest warrants

The Exclusionary Rule took a bog hit today at the Supreme Court.

- Click here for the article.

The Supreme Court divided largely along ideological lines Monday in ruling that police can seize evidence from an unconstitutional search if they first discover the suspect has one or more outstanding arrest warrants.

The court's four conservative justices, joined by Justice Stephen Breyer, ruled that even if police violate the Constitution by stopping someone without suspicion, an arrest warrant entitles them to conduct a search. In that circumstance, they said, there is no "flagrant police misconduct."

"Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance," Justice Clarence Thomas wrote. The vote was 5-3.

The decision was controversial because in some cities thousands of people have arrest warrants pending against them, mostly for traffic violations as insignificant as unpaid parking tickets.

There were 16,000 outstanding arrest warrants in Ferguson, Mo., as of 2015 — a figure that amounts to roughly 75% of the city’s population — the Justice Department found during its investigation into the 2014 police shooting of an unarmed, 18-year-old African-American man. Cincinnati recently had more than 100,000 warrants pending for failure to appear in court. New York City has 1.2 million outstanding warrants.

The high court case involved a Utah narcotics detective's detention of a man leaving a house that was under observation for possible drug dealing. Based on the discovery of an outstanding arrest warrant for a minor traffic infraction, the man was searched and found to have illegal drugs.

- Background from ScotusBlog.
- Read Sonia Sotomayor’s Atomic Bomb of a Dissent Slamming Racial Profiling and Mass Imprisonment.
- “So Little Justification that the State Has Never Tried to Defend Its Legality”

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.

On Sobriety Checkpoints

Grits for Breakfast has a great post on a sobriety checkpoint bill being considered by the Texas Senate.

Sobriety checkpoints can help secure the greater good, if they are designed -- procedurally -- to narrowly focus on drunk driving. If not, they allow for random, arbitrary fishing expeditions, a hallmark of totalitarianism (at its most extreme anyway).

He outlines a bill designed to do just that, which he still opposes on principle, but his discussion helps clarify how procedural restrictions are essential in order to both protect the general welfare while securing individual liberty. In essence, this is a Fourth Amendment issue. What makes a search reasonable?