A Helluva Town

Maybe it's different in New York.  

I don't know.  I haven't lived in The City (that's Manhattan to you folks not from there, but then I never lived in any other part of New York City -or New York State, for that matter) since - well, I'm old and I was young then and left before I went to college which is decades before I went to law school.  So it's been a long time and what do I know?  As I said, maybe it's different there.

I get it that the buildings are taller and closer together and the streets are more crowded and it's the City That Never Sleeps and Wall Street and the (new) World Trade Center and still the Empire State Building and that gorgeous bit of Art Deco, the Chrysler Building, complete with gargoyles.

And Broadway and "Live from New York, It's Saturday Night."

I mean, sure, it's different that way.

But do they really have Law (note the uppercase) that works the way they teach it in law school? That Rule of Law thing?

Scott Greenfield, who practices there (though he lives out on The Island - which is Long Island beyond Queens, outside New York City), seems to think so. 

I'm talking about the Honorable Henry Coke Morgan, Jr.'s Opinion and Order in United States v. Matish.  No, wait, I'm talking about Greenfield's response to Morgan's opinion. No, that's not exactly right, either.  It's Greenfield's response to the responses of folks, like the Electronic Freedom Foundation's Mark Rumold, to Morgan's opinion.

Skip the complexities.  Morgan's dealing with whether to grant a suppression motion after a search based on a warrant.  He says no.  Then, as lawyers put it, he goes on a frolic, explaining that there's really no need ever for the government to get a warrant to search a computer because everyone knows that sooner or later all computers will be hacked.  And that means that nobody ever has a "reasonable expectation of privacy" in the stuff on the computer.

Which led to apoplexy.  Because 

OH MY FUCKING GOD

Which is what Greenfield responds to.  Pointing out that Morgan's frolic is what lawyers call (in Latin to make it sound significant) a dictum -- something said but not technically precedential because not essential to the reasoning of the decision.  And it's not even a dictum, it's an obiter dictum, something even more removed, just an expression of the judge's opinion.  And he's a mere U.S. District Judge so his opinions, even the technically relevant parts, aren't really precedential.  And the By God U.S. Supreme Court says otherwise.  

So take that Rumold.  And you too, Judge Morgan, Jr.

All of that is what they teach in law school.  And maybe in the greener pastures where Greenfield lives (though New York, where he mostly practices, is more concrete than green, but I digress).

So yeah, maybe it's different in New York.

But I don't believe it.  Because Morgan's dumbass reveries (that's English for obiter dictum) will be quoted.  And the FBI and the DEA and the DOJ and Homeland Security and your local constabulary will believe.  And we'll argue about dictum and the obiter dictum and the precedent or lack thereof. Which is what we're trained to do and what we have to do.  And the judges, or at least many of them, will say, 

FUCKIN' A! We got us a good search.

And maybe the appellate courts will reverse after your computer is invaded and you maybe spend a few years in prison.  

Or maybe not.  

Because obiter dicta (that's the plural) or dicta (plural again) or technical precedential value be damned.  This is real world.  And it's the Law of Rule every bit as often as the Rule of Law. 

Except maybe in New York.

Stopping the Innocent: SCOTUS Edition

Well, there -- wholly innocent people are stopped quite often because of mistakes of fact, for instance.  That's part of the whole Terry ­­ how Terry works and those types of brief stops.  There turns out times that citizens have not committed any kind of offense, and yet they are stopped.

Robert C. Montgomery, Senior Deputy North Carolina Attorney General, oral argument, Heien v. North Carolina.

* * * * *

It was at the U.S. Supreme Court Monday morning, the first Monday in October.  Montgomery was trying to answer a question from Justice Sotomayor who wondered just how many folks in the Old North State (Tarheels they) get illegally stopped for having only one brake light* and then asked if they're ok with having the cops search their car.  And, she wondered, 

[I]s that something that we as a society should be encouraging?

Montgomery told the truth, of course.  

Cops stop lots of innocent people.  They do it all the time.  Enthusiastically.  On the flimsiest of excuses that they say (and the courts are willing to believe) amount to what the Supremes said in Terry v. Ohio is enough for a stop: "reasonable, articulable suspicion."  It's a standard just about any cop who's not brain dead can make up shit to satisfy, which is one reason the Fourth Amendment has become more a cover for the police than a shield against police misconduct. 

But you know, there are truths and there are truths.  And this is one that nobody in authority is supposed to admit.  That much of what the cops do is just stopping folks for no acceptable reason.  

Except that they wanna.  And they can get away with it.  Because we let them.

Which takes us back to Sotomayor's question about what we should be "encouraging."  And back to Stop and Frisk and Driving While Black and being Hispanic in Maricopa and

The actual question in Heien, the one the Court agreed to answer, looks straightforward enough.

Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.

As often happens during oral argument that's not mostly what they talked about.  Mostly what they talked about was whether the question mattered or they should have been answering another question. (If it happen that hte stop was illegal, what should happen to the ensuing search of the car?)

But there was that single line, really, just part of a sentence.

wholly innocent people are stopped quite often

And the rest, never quite said because it's impolitic.

And we're good with that.

Besides, it doesn't happen to us.

Just to them.

It's one of those times when we don't disguise that the Rule of Law is, in fact, the Law of Rule.

Which Deputy Attorney General Robert Montgomery came right out and admitted.  

-------------------

*Do not try this at home unless home is North Carolina.  The law pretty much everywhere else in these United States is that you have to have two working brake lights.

Stoping 'Em Before They Violate the Constitution

There you were, driving down the street, minding your own business when you see the disco lights in your rear-view mirror. 

Shit.

You pull over, hand the cop your license and registration.  Give proof of insurance.  He explains that you were violating some provision or other of the traffic code.  

And, oh, do you happen to have any illegal drugs in the car?

Next thing you know there's a dog wandering around your car, then your stuff is being piled up on the side of the highway, a couple of high fives between the cop who stopped you and the one who came by with the dog, and it's off to the local lock-up. 

If you've got the money (or know someone who does and is willing to front it), you hire a lawyer. Otherwise, one gets appointed.  Maybe you get out on bond.  Maybe you sit in an orange jumpsuit eating bologna sandwiches on stale Wonderbread.

Six months later you're in court.  Maybe you're pleading guilty.  Maybe you're there for a hearing on a motion to suppress the drugs because, you say, that traffic cop had no lawful basis to pull you over. More, even if he could have lawfully stopped your car, he had no lawful basis to ask about drugs or bring out the dog or search the car.  And those statements you made. 

Ugh.

OR you're sitting at home minding your own business when there's a knock on the door and it's a bunch of cops, and one of them shows you a warrant to search your house for books and records and computer files and guns and ammunition and god knows what all.  And then it's off to the local lock-up.

OR instead of knocking on the door the first thing you know is that while you're watching the latest episode of CSI - You're Fucked, there's a smash and a dozen guys wearing black face masks are charging through the house, yelling, maybe shooting the dog, and throwing you face-down on the floor, kneeling on your back and holding the business end of a gun against the back of your neck.  And then it's off to the local lock-up.

Six months later you're in court.  Maybe you're pleading guilty.  Maybe you're there for a hearing on a motion to suppress because, you say, that warrant was no good or the search exceeded its scope or. And those statements you made. 

Ugh.

Or, of course, they found nothing and nothing ever came of it except that you were left on the side of the road with all the crap you keep in your car or maybe your suitcases and dirty clothes and maybe some of the pieces of your car spread out on the ground in the mud and the rain.

Or they found nothing but the neighbors saw the SWAT tank and figure where there's smoke, and now nobody will talk to you and there's a note in your mailbox scrawled in crayon saying

We've got our eyes on you

And the dog is still dead.

* * * * *

Magistrate Judge Facciola has issued another opinion.  Again he's denied a search warrant.

No, he tells the government agents, you can't have a warrant to seize e-mails and then search them. Sure, that may be the way you agents typically do it.  And that may be what you do with computers because the logistics of searching them on-site for the specific stuff you're looking for are too great, and you can't expect that the prospective bad guy will just point you to where he's got the stash of illegal kiddie porn or the plans to blow up the Golden Gate Bridge or the names of all the folks he's bribed.

But while it may be unreasonable for agents to do that search on site so they get to seize first, e-mail is different.  Google can run a quick search and give you the stuff you want.  You don't need first to seize all the e-mail and then paw through it at your leisure hoping to stumble across something incriminating.

The Fourth Amendment, see, protects against unreasonable searches and seizures.  And seizing more than you need is inherently unreasonable.  And in this case, you don't get to seize, then search.

So, in a nutshell, said Facciola.  So he denied the warrant.

Volokh Conspirator and law prof Orin Kerr says he's wrong.  Not wrong to have denied the warrant, he's silent about that.  But wrong to have denied it for the reason he does.

The time to decide whether the seize first procedure is unconstitutional is after it happens.  At a motion to suppress the allegedly unconstitutional procedure.  Then there can be full briefing and evidence about how and why this was or was not a proper process.  That, after all, is how Fourth Amendment cases work.  The government allegedly violates the law, then the courts decide.  Maybe evidence gets suppressed (if the marginal benefits of suppression outweigh the enormous costs of potentially letting the bad guy off).  Maybe not.  And in some truly extraordinary case, maybe the guy with the dead dog but nothing to suppress gets a few bucks for the burial.

But that's how it works. And, the good professor says, that's how it's supposed to work.

First, Judge Facciola’s new opinion reminds me of why I think it is necessary for such reasonableness issues to be litigated ex post in the context of adversarial litigation rather than announced ex ante in response to ex parte warrant applications. The reasonableness of executing the warrant is something that ordinarily would be analyzed ex post in the context of adversarial litigation. The defense would say that the execution of the warrant was unreasonable, and the government would disagree. A court could have a hearing into the specific facts, and witnesses could be called to testify. The parties could file briefs and argue the cases and principles on their side.
By predicting ex ante that the means of executing the warrant will be unreasonable, and then denying the warrant application on that basis, Judge Facciola’s opinion is essentially making a factual finding without facts and a legal conclusion without any briefing on the law. In my view, that’s not the way Fourth Amendment litigation should work. As I argued in my amicus brief in the Fifth Circuit, I don’t think there is yet a ripe dispute on which a court can enter a Fourth Amendment ruling about the reasonableness of the future search. If DOJ ends up appealing Judge Facciola’s denial to the district court, I may end up rewriting my amicus brief for DC Circuit caselaw and filing a version of it in the district court. But it’s too early to know, so that’s just a possibility.

Of course, he's right that there's a benefit to full adversarial briefing and the taking of evidence if the judge is going to decide if the cops violated the Constitution.  But here's a question:

• Is it better that the cops violate the Constitution and then, if there's a motion to suppress (which there won't always be - remember those times at the top of this post when my hypothetical you just entered a plea), get told they did a bad?
• Or is it better that they be prevented from doing a likely bad?
• Clean up the mess on the floor?
• Don't make the mess on the floor?

The judge, in issuing the warrant, is supposed to favor the second.  Don't let them do the unconstitutional thing.  And if he's wrong?  Well, a guilty guy may get another few days or weeks before being arrested.  And there may not be the chance for full adversarial testing of the judge's call.

But we know, for sure, that the Constitution will not have been violated.

Which is supposed to be the idea.  The very reason the agents are supposed to get a warrant. 

* * * * *

The story is that Lyndon Johnson, when asked why he kept Bobby Kennedy on as Attorney General given that they hated each other, said

It's better to have the bastards on the inside of the tent pissing out than on the outside pissing in.

Just sayin.

No Probable Cause, So Search Away

Orin Kerr is a law professor and a smart guy.  So when he was explaining at the Volokh Conspiracy (in its new home at the Washington Post) just why Magistrate Judge John Facciola of the U.S. District Court in DC was completely fucking wrong in his opinion (opinion, frgodsakes) explaining why he was refusing to issue a search warrant - well, he didn't say "completely fucking wrong."  Instead, he gave this point-by-point, analytical, legal and policy explanation of just how far off the tracks Facciola went.

Which is fine if you're interested in that sort of careful, lawprof thing.  (I am, which is part of why I read much of what the conspirators at Volokh have to say - at least, as long as I can still get at it for free.)  But if you want the down and dirty explanation?  And if you want to know what the real problem is with Facciola's opinion (and maybe why he wrote one), then you come to guys like me.

Start with the story.  

John Wright, who's not just a DC cop but a Narcotics and Special Investigation Division Gun Recovery Unit Officer (NSIDGRUO if you're feeling the need for an initialism), along with one Officer Sheehan, see some guy walking along one February day with an open coat over his hoodie and his right hand in the hoodie's pocket and pressed against his waist.  Sheehan asks the guy if he's got a gun.  The guy says no.  Sheehan asks to see his waistband.  The guy steps behind a car.  Sheehan asks again and the guy runs.

So then there's a chase through the DC highways and byways, streets and alleys.  Eventually the guy is caught, but not before he tosses something away which pretty clearly seems to be the gun that had been in his waistband.  After they get the guy (and the gun) they go back over the route of the chase and come upon a smartphone.  Public spirited citizens that these NSIDGRUOs are, they check out the phone to try and figure out who lost it.  Lo and behold, Wright finds photographs.  And naturally, well, he is trying to identify the owner after all, he 

looked through the photographs and included in the photographs were numerous pictures of firearms.

Bingo, as they say.  Surely the owner is the guy with the gun.  Who's probably a gun runner or a drug dealer or maybe a hired killer out for a stroll.  Surely the answer is in the phone.

So Wright goes to Facciola and swears out an affidavit for a warrant and figures he'll get it because why the hell not and then he'll check out all the goodies in the phone.  

Except, well, except for Facciola who makes two points in his opinion, one impressively right, the other grossly wrong.

1. There's no probable cause to search the phone.
2. It would be wrong to issue a warrant because the law doesn't require one.

Let's look at these in turn.

Item 1.  No probable cause.  Here's Facciola's explanation (footnote deleted).

The Application requests "any and all electronically stored digital media, including but not limited to, evidence of ownership, subscribers, address books, call logs, phone books, photos, images, text messages, contact information, voice mails, images,1 video, and any other stored electronic data." Affidavit at 6. However other than with respect to the pictures and videos there is no evidence to support a finding of probable cause with respect to these broad categories of information. Officer Wright's suggestion of a link between cell phones and "possession of firearms and distribution and possession of illegal narcotics" may be generally true, but he has provided no evidence that this phone has been used for any purpose relating to firearms other than taking pictures. Id. at 5.

When there's no probable cause, there should be no warrant.  Wright wants one.  Can't get it.  End of story.  Or it should be.  And when a judge turns down a request for a warrant - well, it's both unusual and kinda ballsy.

Except that there's also

Item 2.  Can't get a warrant because you don't need one.  See, Facciola follows that explanation of why Wright hasn't made a showing sufficient for a warrant by explaining,

This is, however, an academic discussion in light of the specific facts presented to this Court in the Application.

Academic because they won't get a warrant anyway - because they don't need one.

This Court recognizes that it only has one version of events, which have been presented ex parte. Nevertheless, the Court can only rule on a warrant application based upon what is presented to it. In light of that, the only conclusion that the Court can reach is that Rivers abandoned the phone.

Hey, the cops said it was abandoned, and I haven't heard from anyone else, so it must be true.  And since it's abandoned . . . .

Because Rivers abandoned the cell phone, Officer Wright had a right to search it. See United States v. Nordling, 804 F.2d 1466. 1469 (9th Cir. 1986). It is settled law that a warrantless search of abandoned property does not violate the Fourth Amendment. See Abel v. United States, 362 U.S. 217, 241 (1960) ("So far as the record shows, petitioner had abandoned these articles.... There can be nothing unlawful in the Government's appropriation of such abandoned property."). Thus, because Rivers has abandoned the cell phone, no warrant is needed to search it and the Application is therefore moot.

And so the warrant is denied.

Let's take a moment and step back.

First, Orin's right.  The judge has to issue a warrant if there's probable cause for one.  Refusing to do that has all the legal and policy problems he points to.  But Facciola's probable cause analysis makes clear that he shouldn't have issued the warrant because there is no probable cause.

No warrant.  No search.  Everyone goes home.  (Well, maybe not Mr. Rivers, he of the open coat, the hoodie, and the abandoned gun.  But everyone else.)  

But Facciola's not playing that game.  He's not the detached and neutral magistrate simply telling the cops it's a no go.  Instead, he's joining the team.  Hey guys, he says, I could and should turn down your warrant application because you haven't got probable cause to search.  But then you wouldn't get to search.  Instead, I'll give you an out.  Search away because I'm declaring that you don't need one.

Typically, what happens is that after the cops conduct their warrantless search and find incriminating stuff, the defendant moves to suppress the results because the cops needed a warrant.  The defense makes its pitch, the government makes its.  Then the court rules for the government.  (Actually, the government goes first when challenged if the search is done without a warrant because the gov has to prove it had a right to search anyhow, but that's a quibble.)  The thing is, everyone gets a chance to make the argument.  And once in a while the defense even prevails. (It's rare, but it happens.)

Except this isn't typical.  This time the judge doesn't bother waiting for the defense arguments.  He rejects the defense argument and evidence out of hand because the cops said the phone was abandoned, so it must be so.

The courts talk about warrants issued by a "neutral and detached magistrate."  They don't say anything about a magistrate who puts his thumb on the scale and gives directions about how to search when there's no probable cause.

Law of Rule.

  Facciola Warrant Refusal Opinion

What Would Jesus Drink?

They say that a prosecutor can get a grand jury to indict a ham sandwich.  That's close to true.

The same is true when cops want a judge to sign a search warrant.  They can pretty much always find someone who'll sign off on even the most vacuous claims of probable cause.

A True Story

Police in Hardin, Texas got a tip.  Reports on just what the tip was conflict.  Dozens of dismembered bodies buried at a farmhouse? Children in danger at that farmhouse? Either way, they got a warrant.

Because when Jesus and 32 angels tell Angel about what's going on at the farmhouse.  The Times reports.

Equipped with a search warrant and cadaver-sniffing dogs, deputies from the Liberty County Sheriff’s Office converged on a home on a narrow country road near Hardin — about an hour outside Houston — in search of a macabre crime scene. The news of a mass grave in rural Texas set off a news media frenzy: throngs of reporters camped outside the home, two news helicopters circled above, and cable news stations flashed alerts that up to 30 bodies had been found.

CBS News:

Liberty County Sheriff's deputies, the FBI, DPS officers and the media converged on the town of Hardin looking for signs of a mass grave. A search at the home turned up nothing.

Because, of course, you have to check.

I mean, when someone calls with that sort of story, and offers a credible explanation for how she knows . . . .

Oh, you wondered about the credible explanation?

The caller, a woman who identifies herself as "Angel," spoke to CBS.

They up-front asked me how I got the information, and I am a reverend. I am a prophetess and I get my information from Jesus and the angels, and I told them that I had 32 angels with me and they were giving me the information and then it went from there.

I mean, who could doubt?

* * * * *

I lived in Texas for 12 years.  I went to law school there.  I know how deeply ingrained in much of the populace is the idea not only of Jesus as a personal savior but the idea that Jesus speaks directly to people.

And the cops went to check?

Jesus and 32 angels told me so?

And some judge signed off on it?

Because there was, after all, probable cause.  We know that, because the Fourth Amendment says you need probable cause for a warrant.

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.

Now, you might think if you haven't been paying attention or if you still believe in those things they tried to tell you when you were in grade school (or law school) that "probable cause" means something like "probably."  You might think that.  You would be wrong.  I've written this a couple of times now.

The Supreme Court says "probable cause" is enough cause for a reasonable person to believe it, but maybe not enough to make it more likely than not. Got that? When it's probably not true but reasonable people would believe it anyway, that's probable cause. Really. Honest. Here's the language from Texas v. Brown (admittedly a plurality opinion, but everyone accepts it).

As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).

Probable cause means a "probability."  There's a chance that the Sun will explode tomorrow ending the very existence of our planet.  It's really unlikely.  Astronomers figure the Sun should keep roughly as it is for another 4-5 billion years.  But, hey, there's a probability.  Just a verrrry teeny one.  Probable cause.

Another True Story

Years ago, I was in the court of appeals arguing about a search warrant.  I don't remember any of the details, but the broad fact is that the warrant was based on nothing even within airplane distance of probable cause. 
The most deferential judge shouldn't have signed it.
The trial judge agreed and suppressed the drugs or whatever it was that the cops found.
The state appealed.
And one of the judges on the court of appeals asked what time Judge X (I'm being purposely and atypically polite by not identifying the judge) had signed off on it.  The answer was, as I recall, something like 7 p.m.  The three judges on the panel looked at each other and thought

Yeah, they do that in Texas, too.

Sure, Maybe in Texas

From Liberty and Justice for Y'all comes this story of what happens when a cop's just too darned sensitive of the feelings of others.
See there was this traffic stop.  Actually, there were two.  First, Officer Duncan pulled over Joseph Newman for driving with a bad tail light.  Duncan saw "a bottle of pills" on the console, but warned Newman and let him go.  About 4:30 a.m., Duncan pulled Newman over again for the tail light.  (You'd think he could have found a 2 a.m. repair shop.)  This time, Newman had three passengers, but the pills were gone.
So Duncan stops the car, the front seat passenger jumps out and runs into a convenience store.  (To escape? To use the john? To buy a Dr. Pepper?)  Duncan searches Newman, finds drugs, and arrests him.  Duncan then turned his attention to Lavetta Renee Williams, sitting in the back, passenger side.  Williams was apparently minding her own business.  She didn't try to run off, didn't make any furtive gestures, didn't mouth off.  I mean, how suspicious can you get?  But the real problem with Williams (who Duncan knew had drug complaints and a "violent temper," is that Newman, once he was arrested, told Duncan that Williams had a knife and was threatening to stab the others.
So Duncan gets the others out of the car.  By now there are other cops around, one female, all there to assist.  And there's this potential knife.  

OK, here's the deal.  A police officer who has reasonable suspicion (which is less than probable cause, which, you'll recall, is itself less than probably but means something like "not impossible") to believe a suspect is armed and dangerous can conduct a pat-down search of the suspects outer clothing to check for a weapon.
So there they all are, by the side of the road.  And it's Duncan's job to pat down Lavetta.  (Why, you may ask?  Why not have the female officer do it? Because we wouldn't have a story then.)  Anyway, according to yesterday's opinion by Justice Brown of the Fourteenth Court of Appeals (Houston)

Officer Duncan testified that he did not want to conduct a pat-down of Williams because she was a female. He stated that he asked Williams to "kind of reach underneath [her bra] and just pull it out a little bit and kind of shake it a little bit . . . and maneuver it." Because Williams was relatively well-endowed—"more than average"—Officer Duncan was concerned she may have concealed the steak knife in her bra. Williams "refused, cried, and said she did not want to pull out her bra." Officer Duncan again asked Williams to shake out her bra. After the second request, Williams complied and numerous pills fell out of her bra. Officer Duncan arrested Williams for possession of a controlled substance. After she was arrested, the female officer on the scene conducted a pat-down of Williams.

And so it is that the local trial court said, NO.  That search was too much.  Suppress those drugs!  And per Justice Brown, the court of appeals said that was right.

Officer Duncan‘s reluctance to perform a pat-down on a female provides insufficient justification for broadening the scope of the search, especially when a female officer was on the scene and immediately available to conduct the pat-down in his place. Having the female officer perform the pat-down would neither compromise officer safety nor expose Williams to an overly broad search. Besides, we are aware of no authority prohibiting a male officer from patting down a female suspect, nor has the State pointed to any such authority.

The state offered bunches of justifications for not suppressing those drugs.  But Brown (and Justice Boyce, who joined his opinion) bought none of them.  They just couldn't get past this.
Additionally, although Officer Duncan had been told that Williams had a knife, he was not told, nor was there any other indication, that Williams had hidden the knife in her bra. Furthermore, there is nothing to show that a pat-down would have been dangerous or ineffective. Officer Duncan stated that he did not want to pat-down a female, but the State has not cited any authority to show that he was therefore justified in conducting a more intrusive search. And the "more than average" size of Williams‘s bust, as Officer Duncan described it, did not constitute a reasonable circumstance that would allow officers to conduct an overly broad search.
Justice Yates took a different view, blaming not Duncan but the prosecutor for failing to present the key evidence.  "The written record," Yates wrote, is unclear or silent regarding several critical items."

• Why did Officer Duncan think a pat down would have been ineffective? Officer Duncan testified that he was concerned that Williams might have had something concealed in her bra that might not have readily been felt during a typical pat down. He stated that Williams’s bust size was "above average," but that does not explain why he thought she could have hidden a steak knife in her bra or that a pat down would not have revealed some indication of the knife, which could have justified additional searching. Although Officer Duncan may have been hesitant to pat down a woman’s bra area, he did not explain why a pat down would have been ineffective in this case had he done so, and the State has cited no authority to show that it is inherently unreasonable for a male officer to pat down a female suspect.
• Did Officer Duncan require Williams to reach under her dress to lift her bra, or did she lift her bra by grabbing it through her dress? The record merely states that she had to "reach underneath," but it is unclear if she was reaching underneath her dress also or just her bra, and the parties disagree in their briefs regarding the interpretation of the record on this point. 
• How much, if any, were Williams’s breasts or other body parts exposed during the search? The record is completely silent on this point. Though the State asserts in its brief that the search occurred in a place not observable by the public, it is undisputed that it occurred in a convenience store parking lot, and Officer Duncan testified in the hearing that Williams was not later subjected to a full strip search because "we’re right there in view of the public."

Regardless, the drugs are suppressed.  The Fourth Amendment lives after all.  At least in Texas, in the Fourteenth Court of Appeals (Houston), yesterday.
And so, for a rare moment of expressed pride in the state where I went to law school:
Go Red Raiders!

The Fourth What?

Over at Affirmative Links, Publius asked of the Fourth Amendment

How many exceptions does it take before you no longer have a default rule?

His point, of course, is that the courts have grafted so many exceptions onto the Fourth, and then applied them so broadly, that there's nothing much left of it.  That seemed clear and simple enough when it was posted, and it still seems so now.  At least to me.

Not, however, to Andrew MacKie-Mason who said in a comment that Publius was pursuing the issue improperly.  Instead of how much the Fourth has been eroded, AM-M wanted a specific list of bad exceptions.  Grits tried to explain.  Nope.  Some guy named Daniel went back and forth with AM-M.  Nope.  Finally, in exasperation at odds with his naturally optimistic and open style, some guy calling himself Quixote wrote a lengthy diatribe trying to explain.  

AM-M still doesn't get it.  Now he's unhappy that Quixote hasn't explained how to improve the Fourth Amendment and has only provided examples and argument rather than analysis of just what's wrong with each of the dozens of exceptions.

Which, of course, wasn't the point.

This has all gotten out of hand, so I thought I'd go after it here, with an open post to AM-M.

Is it better to have a toothless Fourth Amendment than none? That's actually your question (though it's not where you began). Answer: Sure it is. The Amendment has, as Quixote said, linguistic force. And words matter. So does rhetoric.

But it's a worthless question, too, since the Fourth Amendment is with us and isn't going to be repealed any time soon.

But, and here we go again, the Fourth is toothless. The exclusionary rule was developed as a remedy for Fourth Amendment violations.  But the courts didn't like the remedy since it interfered with convictions.  (Which is the point of the legal system, right, to get the bad guys no matter how?)  So they crafted exception on top of exception on top of exception.  And then insisted that the exceptions are to be read broadly, with deference to the officers who violate the Fourth and to the judges who issue warrants without probable cause.  

According to the Supreme Court, this all works just fine.  There's no real need for exclusion because the Fourth Amendment is strong and vital on its own.  Police just don't violate it any more.

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been "wide-ranging reforms in the education, training, and supervision of police officers." S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court's cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See, e.g., D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006); A. Stone & S. DeLuca, Police Administration: An Introduction (2d ed. 1994); E. Thibault, L. Lynch, & R. McBridge, Proactive Police Management (4th ed. 1998). Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. See Canton v. Harris, 489 U. S. 378, 388 (1989). Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

Anything's possible, but I don't know anyone who really believes that.  I've yet to find a case where an officer suffered "internal discipline" for violating the Fourth Amendment (though I've seen a number where serial violators are promoted).  And the idea of the "increasing professionalism" of the police - at least in regard to the rights of citizens, is risible.  You can only believe this stuff if you live with willful blinders.

The real joke is the idea that civil lawsuits are a major deterrent.  The same Supreme Court that touts their efficacy has erected massive barriers to their success.  

Really, isn't this the point:  There shouldn't be any exceptions.  I mean, you can talk all you want about whether the exclusionary rule is or isn't the only meaningful check on Fourth Amendment violations (at least, until the law of constitutional torts is completely rewritten.  But the language of the Fourth Amendment doesn't include "with exceptions to catch seriously bad guys or when it just seems out of whack to apply these rules."  The language of the Fourth is unequivocal:

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. 

You can argue about when a search is reasonable, but the point of the Warrant rules is that the measure of reasonableness is a warrant issued on probable cause.  I don't see a place for judicially crafted exceptions there.  So the question isn't which exceptions to have or not to have, it's whether to have exceptions at all. And the point with which Publius began remains.  The courts have created so many exceptions that the rule is honored only in the breach.  

That doesn't make the Fourth Amendment worthless, but it pretty much eliminates it as an actual rule.

Back to Maricopa

Stoddard's lawyer wants the whole letter.

You remember the letter. It contains the words "going to,” “steal” and “money” grouped near each other in a single sentence at the bottom of the handwritten page. Those words, seen from across a courtroom, on a paper sticking partway out of a criminal defense lawyer's file, alarmed Stoddard because . . . . Frankly, I have no idea. No, that's not fair. Stoddard said that from those four words he thought that the letter was either evidence of a "future crime" or some sort of illegal communication from inside to outside the jail.

That doesn't strike me as a particularly rational inference, but I'm not a Maricopa County Sheriff's employee. In any event, they alarmed Stoddard enough to believe that he had to take that paper and have a copy made. Or so he said. And it's what he did.

When at a later time he read the whole letter later, he decided those fears were unfounded, but he developed an actual "security concern." He testified:

My security concern was knowing Inmate Lozano [the defendant she was standing up in court with at the time] is associated with the Mexican Mafia, and knowing some of the Mexican Mafia history on how they get information from the inside tothe outside, the outside to the inside of the jail, that he could be trying to solicit Ms. Cuccia [his lawyer, the attorney from whose file the paper was taken] to help him in some way, shape, or form in this misconduct.

Let's imagine that's true. So what? Oh, I mean I get it that if there's a conspiracy to coerce an innocent attorney into helping the Mexican Mafia (notice that even the court reporter used uppercase to emphasize the horror of the thing) violate Sheriff Joe's security, it's a bad thing. But what does that have to do with whether Stoddard had any basis to pull the letter out of Cuccia's file?

Let's go back.

When Stoddard, who's some sort of law enforcement officer (Detention Officer isn't a job title in my neck of the legal woods, but I gather he does court security and jail transport work for the Sheriff) first read a paper, or part of one, in Cuccia's file, and then when he took that paper out and had it photocopied, he implicated at least two legal concerns: attorney-client privilege and the Fourth Amendment.

The law of privilege is state specific and riddled with exceptions, but the guts of it is that communications between attorney and client in the course of representation are secret. They're even secret when they include information that law enforcement officers or prosecutors or judges or newspaper reporters might like to have. The privilege can be waived, the communication can be made public, but only with the consent of the client, in this case Lozano. (It's the client's privilege, not the lawyer's). The reason for the privilege is to encourage clients and lawyers to speak freely with each other so that the lawyer has the information necessary to do her job and the client the information necessary to make any choices that need to be made.

The Fourth Amendment is different. You know the text (or you should).

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.

The protection of the Fourth Amendment is not absolute. The courts have limited it and narrowed it and found exceptions to it so often that it seems mostly illusory today. But it's still there. And it's supposed to mean something. While only the client has a legal right to complain about the violation of attorney-client privilege, it seems clear that both Lozano and Cuccia had a Fourth Amendment protected interest in the contents of her file.

Again, Fourth Amendment law is largely a sea of exceptions, but the underlying principle always applies: Law enforcement cannot search through your stuff without a warrant or some circumstance that makes a warrant unnecessary.

In this case, Stoddard might argue that because he could read the problematic words from across the room, what's known as the plain view exception applies. That exception is, essentially, that cops don't have to be blind. If they see something that is obviously illegal (the legal language is that the problematic nature of what's seen must be "immediately apparent"), they can seize it. But there's nothing about the words "going to" "steal" and "money" in a paper in the file of a criminal defense lawyer that shows the paper's criminal nature to be immediately apparent.

The other potentially relevant exception arises when there's a combination of probable cause and an exigency. Probable cause is sufficient basis to believe that the paper is criminal. An exigency is some circumstance that would make getting a warrant so cumbersome that the evidence would be lost. Even if there were probable cause, and it's hard to see, Stoddard could have asked the judge for a warrant. They were in court, for godssake. In front of a judge. No problem if there was probable cause to get a warrant before Cuccia destroyed the incriminating paper. So no exigency; therefore no exception.

As for probable cause, the Supreme Court says that's enough cause for a reasonable person to believe it, but maybe not enough to make it more likely than not. Got that? When it's probably not true but reasonable people would believe it anyway, that's probable cause. Really. Honest. Here's the language from Texas v. Brown (admittedly a plurality opinion, but everyone accepts it).

As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).

So no exception to the Fourth Amendment. Therefore, no right, none, zippo, for Stoddard to reach in and take the paper (let alone copy it).

Still, this is Maricopa County, so when Judge Donahoe held the contempt hearing, he insisted that Lozano waive his attorney-client privilege in the letter. Or maybe just in the four words Stoddard claims to have relied on.

Now, Stoddard wants it all. He needs the letter, his lawyer says, in order to defend himself. Aside from the fact that it's too late for that - the time to defend was when the contempt hearing was going on - it's hard to see how the letter would help. And he doesn't explain.

Here's the basic reason. You can't justify an act by its consequence. An illegal search doesn't become legal because it turns up drugs. You have to have a legitimate basis to invade the privilege or the Fourth Amendment at the time you do it. Doesn't count if you find the basis later. And Stoddard didn't read the letter until after he swiped it.

What will happen next? As always, this is Maricopa County, so all we really know is that it will be problematic.

But that's the future, because there's more in the present. There's Judge Barbara Mundell.

According to Ray Stern at the New Times, she's the "top judge" on the Superior Court (which would seem to make her the Mt. Everest of judges but who am I to, er, judge) and one of the subjects of four judicial complaints filed by Sheriff Joe's chief deputy on November 30. (The complaints are linked from this page.) Her response, according to Stern:

The allegations are false, frivolous and slanderous. This is the latest attempt to intimidate the judiciary and interfere with the fair, impartial and timely administration of justice. This attempt will fail. The bench of the Maricopa County Superior Court will continue to provide access to the courts, decide cases based upon the law and not politics, protect the rights of victims and defendants and ensure public safety.

It probably won't shock anyone to know that among the other judges against whom complaints were filed is Gary Donahoe. Of course, they're all also facing that civil racketeering suit filed by Sheriff Joe and the County Attorney.

Some people are calling Maricopa County "Marikafka." I don't think that does it justice.

What Fourth Amendment is that?

Civics 101:

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.

That's the Fourth Amendment. It's a basic protection the framers understood was necessary not from abstract analysis but from regular and ongoing experience under British rule. While application is always a difficult question, the fundamental point seems clear enough: No seizing or searching of you or your stuff or your home without good, specific reason.

Government has never much been enamored of the Fourth Amendment since it interferes with the ability to stop and search you at will or to break down your door and paw through your stuff just 'cause. I understand that. If I were the government, I'd probably like to be able to keep tabs on everyone all the time. It'd sure make crime fighting easier. Make it easier to curb dissent, too.

Anyway, here's the basic idea according to the courts. Warrantless searches and seizures are per se unconstitutional except in a few specific and well-delineated circumstances. Those circumstances may vary some from jurisdiction to jurisdiction, but here, as an example, is the complete Ohio list.

• Search incident to a lawful arrest
• Consent
• Stop-and-frisk searches
• Hot pursuit
• Probable cause accompanied by exigent circumstances
• Plain view
• Administrative searches

Got that. Any other search, unless there's a warrant, is unconstitutional. And those exceptions are all found in the language of the Fourth Amendment. (Oh, wait, no they're not.)

I could write at great length about every one of those exceptions and how each is applied by the courts in such a way that the exceptions swallow the rule. Perhaps one of these days I'll start a series of Fourth Amendment posts on just that point. But not today.

Today I want to talk about one of the exceptions that's not on the list and that has no basis in the language of the Fourth Amendment. It exists because the courts say it does, plain and simple. It's the border.

When you enter the United States, when anyone enters the United States, the government can search you and your stuff at will. It can do it for good reason or for no reason. It can do it looking for something particular or it can just do it. The courts say it's fine because the government has a right to decide what enters the country, and they can't control that if they can't figure out what you're bringing in. As the Supreme Court put it in 1925:

Travelers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.

This isn't new. They've been doing it, literally, since the nation was established. The Fourth Amendment seemingly prohibits those searches, but the Fourth Amendment doesn't apply at the border because if it did, those searches wouldn't be allowed, and they are. Got that. Good.

Now you've got the background.

In July 2008, the Department of Homeland Security adopted a formal policy allowing the suspicionless seizure and search of people's laptop computers as they came into the country. They'd hang onto the computers, download the information on them, rifle through it looking for whatever they might find. Oh, and they might keep the computer for, say, ever. Cell phones, too. Any electronic storage device.

Of course, they didn't do it often, but they did it. National security, don't you know. Oh, and if instead of a terrorist plot or a spy ring, they'd turn up evidence of insurance fraud or child pornography, well, them's the breaks. If you'd just kept your computer at home, you'd never have been caught.

Last week, the ACLU filed a lawsuit trying to find out just what the government was taking and why, what the government was doing with it, and what justification the government had for doing what it was doing. (You can read a copy of the complaint here.) The next day, the Department of Homeland Security released new standards. (You can read the press release and find links to the new standards here.)

The new policy is an improvement. It puts time limits on how long they can hold your things without basis to think there's evidence of crime. And it says that they have to return your information unless it shows probable cause of a crime. Still, the fundamental problem remains. The government can take your computer or phone or flash drive or whatever, just 'cause it wants to, and can root through it looking for evidence of whatever it might find. And that's because terrorists can bring computers across the border with all sorts of dangerous information on them. (Of course, they can send that information by e-mail and avoid the risk of search.)

And the Fourth Amendment still seems to prohibit it. At least, I can't find the phrase that says, "except at the border."

Eyeballing the evidence

Among the skillions of exceptions to suppression that the courts have engrafted onto the 4th Amendment's protections against unreasonable searches and seizures, even criminal defense lawyers and civil libertarians have a hard time objecting to the theoretical underpinnings of what's known as the "plain view" exception. The underlying idea is that cops shouldn't have to blind themselves. If, by accident, they stumble across what is clearly evidence of a crime, they don't have to pretend they didn't see it.

The plain view exception has been with at least since the Supreme Court approved it, back in 1971, in Coolidge v. New Hampshire. In its pure form, it says simply that when police are where they otherwise have a right to be, looking at what they otherwise have a right to see, and happen by accident to notice what they immediately recognize, without any further investigation, to be contraband or evidence of crime, they can act on it. There are problems in application, but the rule itself really does seem perfectly reasonable.

It's not surprising, then, that courts have been gutting it. In 1990, for instance, in Horton v. California, the Supreme Court eliminated the requirement of inadvertence. The 7-2 decision (written by Justice Stevens) may have made the change seem trivial. It wasn't. The whole point of making the plain view exception require inadvertence is that it would prevent abuse. If police set out to find the evidence, they still needed a warrant. Now, police had an incentive to skip that step. All they had to do was scam there way into the place they thought they'd see the stuff.

Plain view grew in other ways, too. In 1993, the Court adopted a plain feel exception. If you're being patted down for the officer's safety, and the cop feels something in your pocket and can tell, immediately, without asking or taking it out or manipulating it or whatever that it's cocaine, they can use it against you. In some jurisdictions (Ohio, for instance) there's a plain smell exception.

As I say, and even as expanded, there's a certain logic to all of this. If the cops have a right to be someplace, it's not silly to argue that they have a right to see and smell what's there and to act on what's evident. And if they have a right to pat you down, it's not crazy to say they can't take the drugs they find as long as they're not searching for them. (That pesky inadvertence thing keeps coming up at this point.)

It turns out that computers pose special problems. Police will tell you that when they're looking for, say, evidence of financial fraud on your hard drive, they have to look all over and so they might stumble across the kiddie porn. Frankly, that's a bit of a stretch. I'm no computer geek, but they can segregate and only look where the financial stuff should be. That's essentially what they're supposed to do when, say, rummaging through a bank's records for evidence against Bernie Madoff. (Did they do that? Did he use banks?) They're not supposed to just peek at my records while they have a chance.

Which brings us to baseball, steroids, Roger Clemens and Barry Bonds and Alex Rodriguez and so many more.

Unless you've been living under a rock, you know the general story. Major League Baseball, Inc. cut a deal with the player's union to provide for suspicionless, random, anonymous drug testing. The idea was to see just how serious a problem steroids were. The deal was based on a promise of confidentiality. Then the feds got involved.

I'm not going to try and recite the whole sordid tale of government misconduct here, but roughly here's what happened. The government convinced a magistrate that it had probable cause to believe that the testing records of 10 players would provide relevant evidence in its investigation of steroid distributors. The magistrate issued a search warrant with all sorts of conditions designed to prevent the feds from digging around in anyone else's records. The feds ignored all (or at least some) of those conditions. No accident here. They purposely evaded/ignored the conditions.

After several years of litigation over subpoenas and warrants, the case (actually several cases by then) went before the 9th Circuit. Today, the court, sitting en banc, issued its decision. In an opinion by Judge Alex Kozinski (who's had his own computer-related issues, you might recall), the court held against the government. More importantly (except for those involved), the court issued a set of guidelines for these searches.

Technological problems, the court said, would require "overseizing," taking more material than they had a right to (e.g., everything on the hard drive when you're just looking for a few files). Therefore, special protections would be necessary. (I've deleted references to specific pages in the opinion where each of these limitations is discussed.)

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.
2. Segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government
computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.
3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.
4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.
5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.

The key is that first rule. If the government waives plain view, it gets no benefit from rummaging around the hard drive looking for evidence of misconduct. The problem, though, is enforcement.

The opinion says that enforcement duty rests on magistrates, who issue search warrants, and says that if the government is unwilling to accept the limitations, the magistrate should refuse to grant the warrant. Well, maybe. But as Orin Kerr at The Volokh Conspiracy suggests, it's far from clear that magistrates have the authority to refuse to issue search warrants because the government won't accept advance limitations on how they are executed. Besides, restrictions very like these were written into the warrant in these cases. The government ignored them.

Oh, there's another problem. The Supreme Court likes to hear and reverse decisions from the 9th Circuit.

Stay tuned.