The Fourth Amendment Exceptions That Don't Exist

NEWS FLASH!!!

The Sixth Circuit found a case where the Fourth Amendment applies.

In a per curiam opinion (that either means one that nobody wants to admit to having written or it means that the panel wants to emphasize that it is speaking with one voice) Judges Martin, Boggs fergodssake, and Cole hold that police need some justification before breaking down the door and entering a private residence.

The case is United States v. Kimber.  Here's the basic plot via the Sixth Circuit Blog.

[O]fficers, on routine patrol, came upon a private apartment building, which they knew in general was a "hot spot" for criminal activity. The building was protected by a keyed entry system. Officers did not have key access; however, undeterred, officers forced the back door of the property open. After entering the lobby area, the defendant, Mr. Kimber, entered the building, using a valid key. Upon seeing the officers, he turned around to leave; however, officers detained him, frisked him, and found a weapon.

So Kimber got himself busted for being a felon in possession of a firearm and for being in possession of that firearm in a school zone (which is worse).

Actually, the folks over at the Sixth Circuit Blog left out an important fact from that summary.  Here's how the Court put it (footnote omitted).

The officers were members of the District 4 Violent Crime Squad, which is charged with investigating drug complaints, drug activity, shootings, and robberies. They had no reason to believe that any specific criminal activity was occurring at the Alms Hill Apartments that evening, other than their generalized knowledge that the building was a crime “hot spot.” Rather, on account of inclement weather, they had decided to visit the building in lieu of patrolling the city streets.

Let us briefly marvel at the courage and commitment of the Cincinnati Violent Crime Squad which doesn't actually go outside in bad weather before noting the important fact buried in those sentences:  The cops broke into the building just 'cause.  No particular reason.  Not even a hunch.  Just 'cause.  Just 'cause what?  Just 'cause it was, well, here's Ishmael:

Whenever I find myself growing grim about the mouth; whenever it is a damp, drizzly November in my soul; whenever I find myself involuntarily pausing before coffin warehouses, and bringing up the rear of every funeral I meet; and especially whenever my hypos get such an upper hand of me, that it requires a strong moral principle to prevent me from deliberately stepping into the street, and methodically knocking people's hats off -- then, I account it high time to get to sea as soon as I can.

The Cincinnati Violent Crime Squad doesn't go to sea in November. (The Ohio River isn't the Atlantic, and Cincinnati doesn't have too many whalers docking in its ports.)  The Violent Crime Squad just breaks down doors.

So the case goes forward and criminal defense lawyers doing what they do, Kimber filed a motion to suppress the gun as the fruit of an unconstitutional search.  Now, I've written before about how the Fourth Amendment is close to a nullity today, riddled with so many exceptions that even in theory it doesn't cover much.  (See here, for instance.)  But it's still worth rereading from time to time.

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.

Anyway, Kimber said it applied and the gun should be suppressed.  The government said no, and of course it had an argument.  Here's the Sixth Circuit Blog again.

In attempting to rationalize their breaking and entering of the building, officers contended that they had received from the owner of the building a "trespassing letter", which allowed them permission to be on the property. Unfortunately, the letter was dated two months after the defendant's arrest, and the letter did not cover forcible entry. Thus, the Court found this argument to be unavailing. The court also found unimpressive a letter dated two years previous to the arrest, as it was issued by a former owner of the property.

Wait, I need to clarify that last sentence.  It's the panel that found the old letter (and the new one, for that matter) "unimpressive."  The district court thought they were terrific.  Here's the panel describing the district court opinion.

As for Kimber’s assertion that the officers had no right to enter the Alms Hill Apartments
in the first place, the court concluded: “[t]he [o]fficers were present in a common area at the premises in the context of a valid trespassing investigation. The Court accepts the testimony that the location is a crime ‘hot spot,’ and that the [o]fficers’ presence was justified, and indeed welcomed by the owner of the building.” Ibid. In a footnote, the court elaborated:

At the May 1, 2007 hearing the government proffered a letter from Alms Hill building management, dated April 15, 2004, which shows the [previous] property owner authorized Cincinnati Police to enforce trespassing laws on the property. This letter, taken together with the more recent letter from the current property owner, dated January 31, 2007, and the [o]fficers’ testimony, leaves no doubt that [they were] authorized to enter the building on November 11, 2006.

In essence, the district court found no violation of the Fourth Amendment because surely the building's owners would have given consent to the search if they'd just been asked.  That's a new exception to the Fourth Amendment, hypothetical consent or imagined consent expectation of consent or woulda- shoulda-coulda consent or something.

But the court of appeals?  Those are the big guys.  The government had an additional argument for them.  Here's the blog again.

The Government also argued that because the rear door of the building was easily accessible by shoving or kicking the door, that the defendant (and presumably other tenants of the building) had no real reasonable expectation of privacy.

See, now we're onto something. The government argued that if they can huff and puff and blow your house down, you can't reasonably expect them not to do it.  Want to keep the cops out?  Prove it by barring your windows and putting police locks on solid steel doors.  Otherwise, you have no right to expect them not to enter.

The panel didn't buy that, either.

The Anglo-American tradition has long regarded the forcing open of locked doors by law enforcement officials with special disapproval (even where, unlike here, the police have a warrant supported by probable cause).

And so, the Sixth reversed.  Vacated the conviction.  Suppressed the gun.

The Fourth Amendment lives.  There is, at least in the Sixth Circuit (that's Michigan, Ohio, Kentucky, and Tennessee), no hypothethical, imagined, woulda-coulda-shoulda consent exception.  Nor is there an exception for residences that are locked but still easy to break into.

You in the rest of the nation can eat your hearts out.

Maricopa One Again

It's not what we've been waiting for.  

We've been waiting for the Justice Department to sue Sheriff Joe (and Andy Thomas) for abuse of their power, for violating the constitutional and statutory civil rights of the people of Maricopa County.  This, though, is what we got.

US v. Arpaio  

What we got is that Justice sued Joe for being contemptuous.  They don't call it that, of course, but that's what it comes to.

One provision of the 1964 Civil Rights Act says that if you take federal money, you have to give the feds access to your facilities and records so they can assure you spend it in compliance with the law.  (I'm oversimplifying a lot.)  Maricopa and Sheriff Joe have taken federal money.  The feds have been investigating since June 2008.  They've been trying to get records since March 2009.

Joe won't give access and won't turn over the records.  He's said so repeatedly, by public statements and in direct communication with Justice.  Justice narrows the request.  Joe refuses.  Justice repeats the request.  Joe refuses.  Justice says pretty please with chocolate sauce and a cherry on top.  Joe holds a press conference and tells them to fuck off.  Justice asks again, on bended knee.  Joe . . . .

You get the idea.

So finally, Justice sues.

Not for violating anyone's civil rights.  Just for being an obstructionist pain in the ass.  For dissing the feds.

Sigh.

Yvonne Wingett, JJ Hensley and Michael Kiefer lay out charges and counter-charges in the Arizona Republic.

The federal investigation dates to 2008 and seeks to determine whether the Sheriff's Office discriminates on the basis of national origin. Arpaio denies any discrimination and said he was surprised by the lawsuit. He has 21 days to respond.
The civil-rights probe is unrelated to a separate abuse-of-power criminal investigation against the Sheriff's Office by the Justice Department, which is connected to long-running disputes with county government and the judiciary and has led to months of grand-jury testimony.
Attorneys for the Sheriff's Office repeatedly have said they were cooperating with the civil-rights probe but set conditions on the breadth of documents they would release and when. Last week, a sheriff's attorney said in a letter to the Justice Department that he had not agreed to their deadlines.
On Thursday, federal officials made good on their threat to sue. Justice Department officials could not point to a case within the past 30 years in which they had to sue a law-enforcement department to provide access to information.
Dennis Burke, U.S. attorney for Arizona, said that Arpaio's behavior is "self-serving" and pointed out that the Sheriff's Office is legally obligated to provide access to records and facilities because the office receives federal money.
"This is about accountability, and the Sheriff Office's lack of it," Burke told The Republic. "They're trying to design their own self-serving, contorted rules, and they expect unprecedented special treatment different than any other law-enforcement agency across the country - or in history. They want to voluntarily comply with what they want to comply with - despite repeated requests over 17 months."
Attorney Robert Driscoll, who has been negotiating with the Justice Department on Arpaio's behalf, denounced the lawsuit as an attempt to undermine Arpaio's immigration enforcement.
Arpaio released a statement saying President Barack Obama's administration "intended to sue us all along, no matter what we did to try to avert it."
But, according to the lawsuit, officials in the Justice Department's civil-rights unit first started looking at allegations of civil-rights violations by the Sheriff's Office in June 2008, during the George W. Bush era. The probe was not revealed publicly until March 2009.
Arpaio, however, contends the inquiry is part of a conspiracy connecting the White House, Phoenix Mayor Phil Gordon and local advocacy groups.

Stephen Lemons, the Feathered Bastard blogger for New Times is less even-handed restrained.  He calls the lawsuit what it is, "a trumped-up public records request."  The caption on the photo of Joe not-quite giving the finger says it all.

Forget the lame lawsuit, we want to see Joe indicted.

But you know, substantive lawsuits, let alone criminal charges, those are serious things that require who knows what all.

This is just your ordinary contempt of cop charge, except it's contempt of Justice and doesn't get anyone kneed in the groin or shot with a Taser or arrested.  It's just played out politely by lawyers and press agents.

Maricopa County executives, who can't restrain Joe, wring their hands while they quake because it turns out that the surprise winner of the primary contest to replace Andy as County Attorney is another lapdog for Sheriff Joe.  And Joe gets to prance around talking about conspiracies and witch hunts.

And the people of Maricopa?  They stood up one day.

But they keep voting him in.

The refrain to the Phil Ochs song is "Mississippi, find yourself another country to be part of."

And Maricopa?

Who's singing that story?

And who all cares?

Speak Easy

'I ask them: "Do you wish to make a statement?" ' he said.
'I leave the words "last" out, or "final," or anything like that. I think that's probably better than making a last statement, or final word. I just try to keep that out of it.'

That's Charles O'Reilly, the just-retired warden of the Huntsville Unit, the prison where Texas carries out the business of court-ordered murder.  He said those words 140 times, while supervising and participating in 140 killings in the six years he was warden.  According to the Daily Mail, that's more lethal injections than any other warden.  
And he's comfortable with it, he says.

If you think it's a terrible thing, you shouldn't be doing it in the first place.
'You don't do 140 executions and then all of a sudden think this was a bad thing.'
I don't know.  Maybe it's possible to oversee the killing of 140 men and women and not be moved.  Allen Ault would disagree, though.  He was a prison warden in Georgia.  He, too, oversaw and participated in state killings, though fewer than O'Reilly.  A couple of weeks ago, according to the Concord Monitor, he spoke to a study commission in New Hampshire.

"Lethal injection is certainly more humane than the gas chamber," Ault said. "But execution is gruesome any way you do it." Sometimes members of the public would offer to do the job for him, Ault said.

"I didn't want sadists to do it," he said, adding that no one with a conscience can carry out an execution and feel no regret or pain. "I wanted a human being to do it if we had to do it."

Ron McAndrew made essentially the same point.

"Many colleagues turned to drugs and alcohol from the pain of knowing a man had died at their hands," said Ron McAndrew, who oversaw executions in Florida and now speaks internationally against the death penalty. "And I've been haunted by the men I was asked to execute in the name of the state of Florida."

The complexity and variety of the human mind, the metaphoric heart and soul when confronted with death far exceed my capacity for full understanding.  I am moved to tears by murders imagined and by lives saved.  I have known remorseless killers.  We each react as we do.  There's probably nothing else usefully to say about it.  
So perhaps O'Reilly is the exception who has overseen and participated in 140 killings and is unburdened, unmoved by it.  Or maybe he's just in denial.  (The possibility that he's simply evil I flat out reject, though I suspect some who read this might believe it.)


Anyhow, what interests me about the Daily Mail story isn't really that O'Reilly seems to have no particular feeling about killing all those folks.  He can't even remember their names they make so little impression on him.  (Which is, after all, maybe how he does it - through complete dissociation from the event.)
What interest me is where I began.  With last words.
Let me take you back to Ohio for a moment where in 1997 (two years before they began killing people), the Department of Rehabilitation and Correction decided that the execution protocol didn't really account for the fact that men about to be killed may not be feeling charitable toward the killers.  So they cooked up this plan to deny the condemned the opportunity to say their last words.  Instead, the protocol (and I don't have a copy - or any of the early paperwork handy) required that several hours before the killing, guards would give the guy who was gonna be killed a legal pad and a pencil.  He could write down whatever he wanted as last words.
Then, after he was dead, the warden would read some, all, or none of the statement to the press.  If he wanted, the warden would edit the statement.
Oh, sure there was that sticky First Amendment thing.  But we're talking about someone who just got killed.  Who'd know?  Who'd complain?
The answer, it turns out, is that the ACLU would know and complain.  They sued in federal court.
Kevin O'Neill, who litigated the case for the ACLU of Ohio, wrote a law review article, "Muzzling Death Row Inmates: Applying The First Amendment to Regulations that Restrict a Condemned Prisoner's Last Words," 33 Ariz.St.L.J. 1159 (2001).  Unfortunately, it isn't available for free.  Here's the start of the introduction, which is about all I can give you. - and sorry, but I had to omit the footnotes.

Nathan Hale stood on the gallows in 1776, awaiting execution by his British captors, he was asked whether he had any last words. His dying speech, brief but eloquent, resounds through history: "I only regret that I have but one life to lose for my country."

The privilege to utter a last dying speech in the moments just before one's execution is a freedom that is deeply ingrained in Anglo-American history and tradition. Visible as early as 1388, the privilege was consistently honored at English executions throughout the sixteenth century and took root on this side of the Atlantic in the seventeenth century. It was available to everyone: from kings, queens, and aristocrats to the poorest of the poor. Indeed, the privilege was extended to individuals conspicuously bereft of most rights: including "witches," slaves, and prisoners of war. Even a Tennessee lynch mob saw fit to afford its victim the right to deliver a last dying speech.

So Ohio stood alone, a beacon for denying what even a lynch mob would grant.
The judge refused to dismiss the case (here and here).  Then the state settled, reinstating the centuries old tradition of permitting the condemned to speak his or her last words.
And really, that seemed to be that.
Until I read that article in the Daily Mail.  And I guess I really shouldn't be surprised.  Seems that Warden O'Reilly had his own version of the unconstitutional Ohio protocol.

He told inmates they could say whatever they wanted in their last statement, but it must be in English.

'That's all I understand,' he said - and it can't be profane. If the obscenities start, so do the drugs.

'He's got about 15 seconds to do all the cussing he wants to and it will be all over,' Mr O'Reilly said.

'It is going to be the last thing they're going to say. It ought to mean something.

'Most of the statements are pretty decent. They apologise to the victim's family and tell their family they love them.'

See, it's important that when you're about to be killed, you obey the rules.  And that First Amendment thing?  That's only for people who won't offend.

But now O'Reilly is retired.  So maybe -  Here's the relevant part:

Congress shall make no law . . . abridging the freedom of speech.

Maybe that's just too hard to understand.  After all, as I explained here, "no law" has never really meant "no law."  Still, it covers this.

Perhaps someone ought to pass the news on to the next warden.  Texas doesn't have an execution scheduled until mid-October, so there's plenty of time for him to read the Constitution.

Let Us Now Praise Governor Ted

There's a subject line I didn't think I'd be writing this month.

But this afternoon, Governor Ted Strickland (I'm praising him, so I use his full name) commuted Kevin Keith's death sentence.  Rejecting the unanimous recommendation of the Parole Board.  Here's the official statement his office released.

"Kevin Keith was convicted, by a jury, of callously murdering three people-including a four-year old child-and shooting three others, including two young children.  Since the time of his arrest more than 16 years ago, Mr. Keith has maintained his innocence, insisting that someone else committed the murders.

"Mr. Keith's conviction has been repeatedly reviewed and upheld by Ohio and federal courts at the trial and appellate level.  The Ohio Parole Board recommended against clemency in this case.  There is evidence which links him to the crimes that, while circumstantial, is not otherwise well explained.  It is my view, after a thorough review of the information and evidence available to me at this time, that it is far more likely that Mr. Keith committed these murders than it is likely that he did not.

"Yet, despite the evidence supporting his guilt and the substantial legal review of Mr. Keith's conviction, many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it.  In particular, Mr. Keith's conviction relied upon the linking of certain eyewitness testimony with certain forensic evidence about which important questions have been raised.  I also find the absence of a full investigation of other credible suspects troubling.

"Clearly, the careful exercise of a governor's executive clemency authority is appropriate in a case like this one, given the real and unanswered questions surrounding the murders for which Mr. Keith was convicted.  Mr. Keith still has appellate legal proceedings pending which, in theory, could ultimately result in his conviction being overturned altogether.  But the pending legal proceedings may never result in a full reexamination of his case, including an investigation of alternate suspects, by law enforcement authorities and/or the courts.  That would be unfortunate--this case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court.  Under these circumstances, I cannot allow Mr. Keith to be executed.  I have decided, at this time, to commute Mr. Keith's sentence to life in prison without the possibility of parole.  Should further evidence justify my doing so, I am prepared to review this matter again for possible further action."

So, it's LWOP until further notice.  But with the possibility of further notice.
Damn. 

And maybe it's less of a fluke than it seems to me.  As Alan Johnson writes in the Columbus Dispatch,

It was the second time in the last three murder cases set for execution that the governor spared the life of the convicted killer. He spared the life of Richard Nields in June, but allowed Roderick Davie to be executed in August.

It was also the second time Strickland rebuffed the parole board's recommendation in a capital case. He allowed the execution of Jason Getsy to go forward in August 2009 even though the board voted to spare his life.

I may have to start respecting the guy.

Updating the Disclaimer

Figured it was time to point out that I write this blog all by myself and that the views expressed are solely mine (and some of them may not even be mine, but I'm not going there).