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

Stephen Breyer's Buccal

Winning entry in Monday's Stupidest Remark by an Elected Official competition:

This is a resounding victory for both law enforcement and civil libertarians.

That's Maryland's Attorney General, Douglas F. Gansler, reaacting to the fact that Stephen Breyer continues to believe in the idea of the Constitution rather than the Constitution itself.  OK, OK, I'm maybe being unnecessarily obtuse.

The Supreme Court on Monday issued its opinion in Maryland v. King. The Fourth Amendment, Justice Kennedy said writing for a 5-4 majority, is perfectly happy to have cops take buccal swabs of everyone arrested for serious crimes, use them to generate DNA profiles, and then search to see if their DNA matches the DNA on file from unsolved crimes.  

That's fine, Kennedy said, because it's not particularly invasive to actually take a buccal swab, and it's important to check and see if the guy arrested today might have committed any other crimes because that's how we can be sure the guy we arrested today is the guy we arrested today which is both reasonable and necessary and golly gee, who would object.  And besides, if they'd taken a DNA sample when they arrested Tim McVeigh for not having a license plate on his car, they'd have figured out that he was the guy who'd just blown up the Murrah Federal Building and so been able to prevent it from having happened a little earlier instead of how they figured out that he was the guy who'd blown up the building when they arrested him but because they didn't get a DNA sample that would take up to a month to analyze they weren't able to stop him from doing what he'd done before they arrested him.

Really, that's what he said.

Of course, he dressed it all up in fancy legal gobbledygook and scattered citations to irrelevant Supreme Court decisions and the like.  But he had to do that because the alternative would have been to write something like this.

You never know when the guy you've arrested might have committed other crimes, and we have a chance of figuring it out if we take DNA samples from everyone we arrest.  (We'd do even better if we simply took DNA from everyone, but Maryland hasn't enacted that law yet.)  And since innocent people won't be fingered, they can't possibly mind having their DNA in a big national database, and if they do, well, who really cares what they think if we can maybe catch an extra bad guy or two.  And the Constitution's constraints on that sort of thing are messy, but we're talking about catching bad guys, so things like the Fourth Amendment just have to give way.  I mean, that whole thing about warrants and probable cause just interferes with law enforcement, so we can ignore it.

Which he couldn't really say.

Antonin Scalia, on the other hand, writing the dissent, pretty much said just that.  The Maryland law at issue specifically prohibits using the DNA samples for the purposes Kennedy claims can justify the law.  And as a practical matter, it's worthless for those purposes even if they were legal.  No, Maryland wants to take DNA samples from everyone arrested simply to solve crimes.

Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.

Which is, I have to say, exactly right. 

What, you may rightly ask, has this to do with Stephen Breyer?  And where in the world did Attorney General Gansler get the idea that King was a win (a "resounding" one) for civil libertarians?

The short answer to the Breyer question is that he's responsible for the decision.  Oh, Kennedy wrote the opinion, and he's the standard swing vote.  He was joined, as you'd expect, by law and order types Roberts and Alito.  Clarence Thomas signed on, too, because the Fourth Amendment just like all those other parts that try to prevent government agents from doing what they want to individuals.  His Constitution was to defend the prerogatives of rich white guys and whatever they want to do to folks they think are maybe criminals (or, really, anything other than rich white guys) is just fine (as long as it doesn't advance the interest of those folks).  Really, you could imagine Kennedy voting either way on this one, but Alito? Roberts? Thomas? You knew where they'd come out.

You might imagine you'd find Scalia there, too.  But he switched sides on this one.  His dissenting opinion isn't particularly originalist.  He doesn't explain what the framers did, spends just a couple of sentences mentioning their attitudes.  Rather, he's pretty clearly offended at Maryland's (and Kennedy's) brazenly dishonest position.

The problem child here is Breyer.  He of the allegedly liberal bloc.  He who as a child had people "stick things in [his] underwear."  He who was attacked by a machete wielding desperado.  He signed onto Kennedy's opinion, which gave it a majority.  That's not what's supposed to happen.  Breyer's supposed to be this staunch liberal.  Which is, of course, hogwash.

Breyer, as I've said before, sees the job of the Court as helping government be efficient, especially if it can be done without it being too overbearing on individual rights.  Buccal swab?  No big deal.  Catch bad guys?  Big deal.  Rules for police to follow? Excellent.  Sign me up.  The Fourth Amendment? Feh. Not this afternoon.


Sure, the Fourth might prohibit this.  But the idea of the Constitution, the sort of government you'd like to have (he'd like to have)?  The idea trumps the reality which is clumsy and inefficient.  We're talking a fucking buccal swab.  And it won't be in his buccal.

What Would Jesus Drink Part II - The Angels Coming Home to Roost

Hardin, Texas is just a dot on the map, but it's growing at a pretty fast clip.  The population increase from the 2000 to the 2010 census was a spirited 8.5%.  It's now all the way up to 819.  Hardin is in Liberty County, which according to the county website is pretty close to paradise.

Liberty County is home to some of the kindest, friendliest, hardest working folks anywhere. Something is always happening here in Liberty County. Our proximity to Houston, lower cost of living, great schools, strong economy, and the world-class hospitality of communities like Cleveland, Liberty, and Dayton make Liberty County a wonderful place to raise a family or locate a business.

As they say, "Something is always happening [t]here."

A year ago I told this 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?

My broader theme then was the widespread but inaccurate belief that the requirement that police have a warrant based on probable cause before tearing up your home and destroying your life, the guts of the Fourth Amendment, was close to meaningless.

The beauty of a good story is that it has legs.  It can be a gift that, as they say, keeps on giving.

This morning, Scott Greenfield picked up on the latest news.

Via Courthouse News, Joe Bankson and Gena Charlton are suing the sheriff, the psychic and a bunch of news outlets who reported about them "after a self-proclaimed psychic told the sheriff that 25 to 30 dismembered bodies were buried in a mass grave at their home." Needless to say, this tip didn't pan out, much to the surprise of the psychic who calls herself "Angel."

The sheriff's office provided the plaintiffs' address to the news media and repeated the false statement, and it made nationwide and worldwide headlines, according to the complaint.
Bankson and Charlton claim the sheriff's office searched their home unreasonably and without probable cause, inviting the media along to watch the intrusive execution of the search warrant.
The couple claim the sheriff's office was "unreasonable in relying on an uncorroborated tip from a self-proclaimed psychic source" who has proven to be "unreliable and untrustworthy."

Me, I'm not a believer.  Sure, I lived in Texas, went to law school there, practiced law there, and have a mighty fine cowboy hat I wear occasionally.  Even so, I'd think it was unreasonable to rely on "an uncorroborated tip from a self-proclaimed psychic" who got her info from "Jesus and the angels" even without knowing that she had been proved "unreliable and untrustworthy." (Of course, despite the dozen years I lived on the Llano Estacado, I'm basically a Yankee.)

Anyway, let's take a moment to think about the lawsuit and in particular the defendants.  And let me make clear that I'm writing based on the description by Courthouse News which may or may not accurately reflect the complaint, which I haven't seen.

Sue the Sheriff for violating the Fourth Amendment?  You bet your booties.  Sure, it's Texas and sure the Fourth Amendment doesn't really mean much these days.  But tips from Jesus and the angels?  Of course, there's that whole qualified immunity thing and whether a reasonable Texas sheriff might believe it however tiny the probability.  Still, I say go for it.

Sue Angel? Be still my heart.  

The first question was whether to charge her with a criminal violation for filing a false report.  Apparently that was going to depend on whether the authorities could confirm that she was actually a psychic?  (Really, you can't make this shit up.)

Rucks Russell at KHOU 11 news quoted Captain Rex Evans of the Liberty County Sheriff's Department on the subject..

However, that has not been confirmed yet, whether she’s a psychic or not.

Because if she were really a psychic there wouldn't be a case?  But if she was a false psychic there would?  And how would they decide?  Shortly after I moved to Texas, another Yankee - one who'd lived there for several years - told me that the important thing wasn't where you lived but when.  In Lubbock, he said, we were living in the 1700s.  Liberty County?

But Angel?  Sue her?  Lovely idea, but for what, exactly.  Defamation, I suppose, since she accused them of horrible crimes.  Except, more precisely, she said there was evidence of horrible crimes on their property.  In a police report.  It was nonsense, of course, but defamatory?  

Still, that's all beside the point here.  Because there's a real and serious problem with the lawsuit. Here's the first paragraph of that Courthouse News story.

A Texas couple claim in court that they were defamed by major media companies, including The New York Times, Belo Corp., CNN, Thomson Reuters and ABC News, after a self-proclaimed psychic told the sherriff that 25 to 30 dismembered bodies were buried in a mass grave at their home.

See, what the media did was report that there was this wasteful search based on a tip by a psychic that didn't pan out.  Here's a bit from that Times story I linked to above.

But in the end, there was no grave, there were no bodies and there was no sign that any crime had been committed — except, perhaps, the misleading call that created the spectacle in the first place. 

Look, when the Sheriff invites the media along (like Greenfield I have serious reservations about that, but it's beside the point here) on a search for dozens of dismembered bodies, they're gonna report it.  Because it's legitimately newsworthy, even if only in a man-bites-dog sort of way.  And because that's what they do.

But they also report that it was hogwash.

And, speaking both as a lawyer and from the experience of being wrongfully sued for defamation, it ain't defamation. 

Even though some folks will miss the follow-up.  Or believe only the accusations.  Guilty regardless of the evidence.

No, the villains here aren't the media.  And may not be the crackpot Angel, whoever she may be.  The villain is the law that allowed a search warrant based on her tip which she based on the word of Jesus and the angels.  And the forces of authority who turned it into a circus.

But on the Other Hand, I'm Scared

Some years ago, at a Constitution Day event on the campus of the University of Toledo, they'd arranged for a variety of folks to give three minute talks on the amendments constituting the Bill of Rights.  I'd been asked, as I recall, to talk about the 8th Amendment.  That's the one that prohibits cruel and unusual punishment, the one that lawyers and the courts use to set the boundaries of the death penalty.

For whatever reason, and I didn't discover this until I arrived just a couple of minutes before things got rolling, nobody had been assigned to speak about the 3rd Amendment.  I wasn't too surprised.  The 3rd is widely ignored, because it addresses what seems today to be a non-issue.  Ellen Alderman and Caroline Kennedy, in their book In Our Defense: The Bill of Rights in Action call it "the forgotten amendment."  They write,

The Third Amendment is a reminder that although the Constitution was "framed for ages to come and . . . designed to approach immortality," it was also written to address real and immediate grievances suffered by its authors.

Indeed.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The Quartering Act of 1774 authorized the quartering of British troops wherever.  And wherever included the homes of the colonists.  Yes, that's as deeply offensive today as it was then, but it's just not much of a real world concern in the US of the 21st Century.

Still, I jumped into the breach and asked if I could take a couple of minutes to riff on the 3rd Amendment before it came my term to speak about the 8th.  See, I'm a fan.

What I like so much about the 3rd Amendment is it's absolutism.  No quartering in private homes in peacetime.  Even in time of war it has to be lawful, but none at all in peacetime unless the owner invited them in.

Rich or poor, you can bar the door.

The government simply cannot invade.

Besides, it leads so naturally into the Fourth Amendment.

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.

It's those amendments, supported by pieces of others, that make the basic point.  There are matters with which the government doesn't get to meddle.

Justice Louis Brandeis, finding in the 5th Amendment's prohibition against compelled self-incrimination an extension of the principles of the 4th, explained it as well as anyone.

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

I'm always saddened by the fact that Brandeis wrote that ringing paragraph not for the Court in Olmstead v. United States but in dissent.

All that is prelude to the point I want to make here.  To get there more directly, consider the decision DC Court of Appeals in Electronic Privacy Information Center v. Department of Homeland Security, a lawsuit challenging the Scope part of Scope and Grope on Fourth Amendment grounds.  (Yes, I'm oversimplifying again; it doesn't matter here.)  The court balanced intrusiveness against need, and it concluded that need won.

[W]hether an administrative search is “unreasonable” within the condemnation of the Fourth Amendment “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112, 118–19 (2001) (internal quotation marks omitted).

That balance clearly favors the Government here. The need to search airline passengers “to ensure public safety can be particularly acute,” Edmond, 531 U.S. at 47–48, and, crucially, an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. On the other side of the balance, we must acknowledge the steps the TSA has already taken to protect passenger privacy, in particular distorting the image created using AIT and deleting it as soon as the passenger has been cleared. More telling, any passenger may opt-out of AIT screening in favor of a patdown, which allows him to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is least invasive.

Scott Greenfield quoted that passage yesterday (he actually quoted a bit more than I did), and then pointed out all the things the court left out of its balance.  Things like whether either part of Scope and Grope (or even both together) actually advance safety.  And if so, how much.  Cost v. benefit and all that.

Much has been written by people with actual knowledge on the subject, like security expert Bruce Schneier, explaining at great length and in substantive detail why the TSA's initiatives do not serve legitimate purposes, do not make anyone safer and constitute security theater rather than actual security. 

Yet nowhere does the court recognize that there is any question, none, that the scanners or their alternative "patdown" (with or without insertion of gloved TSA hands into vaginas) may be a mere show to flame the public's security fears.  For the less cynical, the court didn't even consider that it's a show to pacify the public, and provide a paid occupation that allows adults to touch the nubile breasts of young girls.

It's astounding that the judges, with the opinion written by Judge Douglas Ginsburg, and joined by Judges Henderson and Tatel, swallowed the concept that the TSA knows what it's doing, and what it's doing must be sound because, well, the TSA says so, without any scrutiny whatsoever.  What strikes so many of us as monumentally dubious initiatives, conduct that is not only horribly intrusive but largely ineffective in protecting anyone from the exceptionally small risk of harm by terrorists blowing up a plane, is wholly ignored. 

Yet the decision goes on to compound the glaring gap in its discussion of balancing.  Even if we are to accept at face value, as the court does, that the TSA's grope and scope makes flying safer, the court needs to get its scale tested.  

Which is clearly right.  But the focus on the screwy balancing to justify Scope and Grope, while altogether appropriate in the context of the decision in EPIC only hints at a larger problem - one Brandeis, too, hinted at, but then Olmstead dates from 1928 when it was less of an issue.

Balancing tests for constitutional rights inherently substitute prejudice for principle.

Consider two examples of how it works (and yes, I'm oversimplifying again).

The Constitution says you can't punish people for their speech.  We accept, grudgingly, that the prohibition can't really be absolute since there are situations we can imagine where the speech would be so dangerous and have such immediate, drastic, and foreseeable dangerous consequences (Holmes's example of "falsely shouting fire in a theatre and causing a panic" comes close, though really the theater should be crowded and have too few exits).  But then we start to balance it away.  And we end up with Morse v. Frederick where the court said that students could be punished by a school for holding up, outside of school, a sign saying "Bong Hits 4 Jesus" because it might suggest that drug use is OK and stopping drug use among kids is really important.  That is, you weigh on one side of the scale drugs + kids and on the other side free speech.  Free speech loses.

Or you consider drunk driving and the right to travel the roads freely without being stopped by the cops even though there's no reason to think you've done anything wrong, just a random stop at a drunk driving checkpoint.  The Fourth Amendment would seem to say no.  But you put drunk driver on one side of the scale and freedom from suspicionless government intrusion and the Fourth Amendment proscription against those searches loses every time.  

There's no debate here about marginal risks and benefits.  The balance is the perceived goal (good) versus the perceived harm (constitutional rights that judges and justices and legislators and presidents and governors and attorneys general and all the lesser officials don't really mind if criminals lose.  Hell, they don't care if you lose those rights, or if I do.  (They don't want to lose those rights themselves, of course, but they also don't imagine they will.)

Because there's a bad guy lurking around every corner.  Because we can't really judge marginal safety, and don't really care to.

The thing about plane crashes and flying planes into the World Trade Center is that they're dramatic.  A lot of people die at one time.  That doesn't make flying especially dangerous (it's still about the safest way to travel) but it gives fear of flying (not Erica Jong's sort) a political resonance.

The point is that when we balance safety against freedom or crime prevention against freedom or anything we oppose against freedom, freedom is likely to lose.  Not because it's really worth less.  But because the very idea of balancing is meaningless.

How do we really do the cost-benefit analysis.  What's your peace of mind worth?  Especially when most of the cost won't be taken from you but from other people?

Want one more example?  Read through one of the most disingenuous, racist, wrongheaded opinions of the US Supreme Court, Korematsu v. United States.

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. 

That's a fancy and legalistic way of explaining that gee, since there are presumably bad Japanese out there, the balance says we should punish all of them.  The indians we sent to reservations, you know, the ones we didn't exterminate, they understood.

Balance at your own risk.

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.

Cedar Falls, Iowa: Fourth Amendment Free Zone

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.
Everyone agrees it's important.
Everyone agrees it should be respected.
Almost everyone in power believes it never actually applies.
OK, that last isn't exactly fair. But damn, it seems that way.
I've written about the evisceration of the 4th before, of course.  But really, there's so much more.
Take Barnes v. Indiana from last month.  The Indiana Supreme Court (less pompously named than the Supreme Court of Ohio or, the even stuffier Supreme Judicial Court of Massachusetts [perhaps named to distinguish itself from, say, the Supreme Salem Witch Hunt Court of Massachusetts]) decided that the common-law right to resist an unlawful police entry into one's home, a right stretching back centuries, should be jettisoned because, well, here's what Justice David said (citations omitted and some punctuation modified, all without indication - read the opinion for yourself to see that I haven't changed anything substantive).

We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. The dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—[were] reasons for recognizing the right to resist.  But [there are ] the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies. We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest—as evident by the facts of this instant case.

That pesky Fourth Amendment thing?  Hey, that just says the cops can't enter your home unlawfully.  It doesn't say you can do anything about it if they do.
But that's so last month.
This month we turn from Indiana to Iowa, dropping in on the lovely city of Cedar Falls.

"This is the place!" proclaims the web site run by the Tourism and Visitors Bureau.  And while you might be hurrying off to get there in time for the Snozzberries on Friday you might want to think twice before opening up a business or, especially, renting an apartment.  Because by law, you'll have to keep the key in a box on the front door.
Huh?  By law?  Yep.
Monday was the third reading and the CF City Council, seemingly against the wishes of the people, voted 6-1 (same vote at each reading for the last 3 meetings) to enact Ordinance 2740 which (and I have to paraphrase from all the news reports and You Tubes and Tea Party blogs because I can't actually find a copy of the damn thing on line) says that every apartment building with at least three units must have (at owner's expense) a lockbox by the front door with a master key to open the building and every door inside.  The Fire Chief and whoever he deputizes is to have the codes for access to the lock boxes.
See, that's good, because when there's a fire, they don't have to use that ax to get in (or ring the doorbell, say, or knock) but can just open up the door and let themselves in before trashing the place with the hoses and the ax.
Here's how Jon Ericson of the WCF [that's Waterloo-Cedar Falls] Courier explains it.

Seven years ago the Cedar Falls City Council passed an ordinance requiring lock boxes on commercial buildings and larger apartment complexes. Hardly a soul made a peep about it.
On Monday the council voted 6-1 on a third and final reading to expand the ordinance to include more apartment buildings. In the days leading up to the vote, they received hundreds of phone calls and e-mails from people all over the country from people upset about the issue.
Some calls came in the middle of the night. Some writers threatened them and called them scumbags, or worse.
The issue had blown up on the Internet in recent days with message boards, primarily those tilting toward conservative and tea party viewpoints, spreading the story nationwide.
The council was voting to update its fire code from the 2003 International Fire Code to the 2009 version. Cedar Falls had required lock boxes since 2004 for firefighters to access keys to apartment buildings with six or more units and commercial buildings with sprinkler systems or unsupervised alarm systems. The new ordinance will also require the key boxes for apartment buildings with three or more units

Now, this doesn't apply to private residences where "Ax ready! Smash door!" will remain the fire department motto for at least a while longer.  But if you're unfortunate enough to live in an apartment - then the fire department is your friend and always welcome to enter.
Because, see, there's no check.  Oh, they're not supposed just to come in for fun.  And they're not supposed to let the codes for the lock boxes get hacked.  And they're not supposed to do anything wrong.
After all, they're from the government.  And they're here to help you.  Like it or not.
And they won't, because they're from the government, and the government never does anything wrong and can always be trusted - which is why you have to give them your keys.

It Isn't Just for Football Any More

There you are, minding your own business, sitting on the porch in Ogden, Utah.  You're humming the official state song ("Utah, This Is My Place"), thinking about how last week you caught yourself the official state fish (Bonneville Cutthroat Trout) and had a fine dinner, and working out plans to attend the official state folk dance (square dance) with your sweetie.  You're minding your own business, enjoying the aroma wafting your way from the flower pot of sego lilies (they're the official state flower) mixed with just a touch of the oil from cleaning your Browning M1911 (soon to be the official state firearm).

Busy you are being a model (one might say "official") citizen of the Beehive State.  So busy that you really don't notice that the cops are watching you from 400 feet in the air.  Not from a nearby tower, not from an Ogden PD helicopter.  No siree.

This is Ogden.  They're using the (as yet unnamed, but they're looking at something cute and "catchy" like "U-V-A" [I was thinking maybe "We're Watching," but what do I know]) spy blimp.

Keith McCord in the Deseret News describes the thing (pictured above, photo from hyperblimp.com which you should go to just to watch the video on the home page).

The blimp will be filled with helium. It's 52 feet long and 4 feet wide. It's fast and can turn on a dime. The two cameras on board can send video real time to officers on the ground. 

Hyperblimp's website is enthusiastic.

The Hyperblimp is a streamlined, helium-filled, patented airship that slips through the air rather than pushing it aside. It is propelled by a central axis rear propeller, capable of moving in any direction. These airborne vehicles are whisper quiet, yield zero pollution, and are efficient enough to run on sunlight alone; they are as maneuverable as a hummingbird, yet incredibly smooth in flight. They require low maintenance, relatively low initial cost, and are capable of vertical take-offs and landings.

Goodyear, eat your heart out.

Really, I want one.  My birthday's coming in a couple of months.

But I'm not so happy with the police.  

You know, we live in a surveillance society.  More and more what we do, where we go, what we buy, who we see and talk to, what we look (or feel) like under our skivvies is recorded or monitored.  When the local PD doesn't do it, the highway patrol does, or TSA, or WalMart or Verizon or Google or your local supermarket.  Privacy, you remember privacy?  Maybe you don't care.  Maybe you leave the curtains open all the time and wander about naked just 'cause.  Maybe you're happy with everyone knowing all those icky little details.

Or maybe you think it's nobody else's business to watch you going in the door at the oncologist's office.  Or your sex therapist's.  If the business next door keeps a camera focused on the street, it might catch you entering and there's not much you can do except grumble and maybe wear a disguise.

But the government is supposed to be different.  You know, that Fourth Amendment thingie.

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.

Of course, the cops (and the Supreme Court, I should add) have a far narrower view of what "unreasonable searches and seizures" are.  From the point of view of the police, it's "unreasonable" only if they don't want to do it.  The courts think it's unreasonable only if they're horrified.  (Yes, I'm overstating it a bit.)

Me, I think a silent spy 400 feet overhead with high definition cameras looking into my windows or back yard and watching me chatting with my neighbors or friends on the street, and going to the doctor or the supermarket, and yes, cleaning my official state gun, I think all that's unreasonable.

Which is maybe part of why I'm not a cop and they don't really want me to be a judge.