A Stitch in Haste

A very troubling search-and-seizure case, Coddington v. Evanko, was quietly decided a few weeks ago ("quietly" in that the decision by the Third Circuit Court of Appeals was not formally published and is not to be cited as precedent). Both the facts and the holding are truly enraging.

Professor Sherry Colb of FindLaw's Writ provides the background:

When William Coddington, a Pennsylvania State Trooper, reported for work on April 5, 1999, several of his superior officers told him that they had received confidential information indicating that he was using cocaine. There was no finding by a court -- either then or after the fact -- that the informant providing the confidential information was either credible or had some basis for knowing whether Coddington was using drugs. Coddington was nonetheless ordered to submit to hair sampling so that his hair could be tested for cocaine and other drugs.

A sergeant at the police station cut hair from Coddington's head, neck, and part of his left shoulder blade. Coddington was then informed that additional hair had to be taken. He was given the choice of undergoing this further hair removal at a barber shop, at a salon, or at the home of a retired police officer whose wife used to be a beautician. He chose the last option of the three, and the subsequent shaving resulted in bare spots on his scalp. When police sent the hair to the laboratory to test for cocaine (along with other illicit drugs), the results were negative.

Now the black-letter law is fairly straightforward: hair samples are comparable to fingerprints and writing exemplars for Fourth Amendment purposes. But even so, does that mean there are to be no limits whatsoever to what law enforcement can require? To analogize: Could police require you to write your signature over and over for a hour until you had a severe case of writer's cramp? Is there no line where "reasonable hair sample" ends and "unreasonable head-shaving" begins?

Professor Colb, meanwhile, has another more important bone to pick with the case. Isn't taking a hair sample a seizure rather than a search? The difference is critical. Only searches are governed by the well-known "reasonable expectation of privacy" test used for Fourth Amendment analysis -- seizures are not.

In other words, if the action is a "search," then all the police need to do to bypass the Fourth Amendment's requirement of probable cause is claim that there is no "expectation of privacy." That loophole does not exist for seizures -- probable cause, or at least some reasonable individualized suspicion, is always required.

Surely taking huge swaths of hair from your scalp -- leaving noticeable bald spots -- must be a "seizure" by any rational definition of the word. And if so, then the involuntary taking of Coddington's hair, without probable cause, was illegal, and the case wrongly decided.

Hopefully an aberration that, being unpublished, will not inspire too much damage to the right to control one's own body. Still, the idea that such a easy case in which to rule in favor of individual rights and basic human dignity could be so badly decided does not bode well for those who love their freedom...or their hair.

Anyone indignant about the War on Drugs or the emasculation of the Fourth Amendment should read the entire Colb article -- not very long, and suitable for non-lawyers!

For Discussion: In this case the police were going after one of their own. Would they be more or less likely to try the same thing on a civilian? Could schools require forced hair samples from all students on a regular basis?

SCOTUSBlog:

[T]he Maryland Court of Appeals [ruled] 5-2 that a dog sniff of an apartment is not a search.

As the court notes...this ruling widens a split in the lower courts on what will almost certainly be a cert.-worthy "follow-up" question to Caballes if the Court's decision in that pending case does not resolve it. Of note, the Maryland high court reasoned that Kyllo "has no bearing on dog sniffs" because, inter alia, "a dog is not a technology -- he or she is a dog. . . . . Across America, people consider dogs as members of their family."

Diamond is not a member of my family...she is my family.

She also doesn't testify against me at trial.

There are some jurists who will argue anything, absolutely anything, in order to expand government and contract the Constitution.

May they die painful deaths, preferably in the jaws of a drug-sniffing dog.

The Supreme Court has handed down an utterly terrifying holding today further undermining the Fourth Amendment in the name of the "War on Drugs."

The case, Illinois v. Caballes, concerned a routine traffic stop for speeding. While the officer was writing the ticket, another officer with a drug-sniffing dog arrived. The dog alerted to the trunk, where marijuana was found (how much marijuana is unclear, but the sentence was twelve years imprisonment and a fine over $250,000, so I'm guessing "lots").

In upholding the dog sniff, Justice Stevens relied on the fact that the motorist was not detained any extra time during the stop (i.e., the canine patrol arrived while the speeding ticket was still being issued). In other words, as long as the motorist is not delayed or otherwise "inconvenienced," there is no Fourth Amendment violation.

The implications of Caballes are utterly staggering. As both Justice Souter and Justice Ginsburg observe in their dissents, there can now be no question that random, suspicionless drug-sniffing dog sweeps of unoccupied vehicles in parking lots or garages and on curbsides would almost certainly be completely permissible under the Fourth Amendment.

The total elevation of the sniffing dog above the human being is now nearly complete. Only one basic dignity has yet to be eradicated -- the dog sniff of a person has not yet been sanctioned. Yet.

With nauseating decisions like Caballes being handed down with 6-2 majorities, it's probably only a matter of time.

PDF of the decision (23 pages; probably suitable for non-lawyers) here or via How Appealing. Meanwhile, Grits for Breakfast has an impressive linkfest on Caballes.

Related Posts:
Maryland's Idiot Judges: Police Dogs "Part of the Family"
A Search & Seizure Double-Play
Hair-Shaving and the Fourth Amendment
Tipping and the Bill of Rights

The Supreme Court has handed down yet another troubling Fourth Amendment case, one which seems to have been overlooked by the blawgosphere. That’s unfortunate because this new case, Muehler v. Mena (PDF – 22 pages), when coupled with the Court’s atrocious recent holding in Illinois v. Caballes, signals a serious long-term threat to the very notion of probable cause as a check on police power in this country.

The facts of Mena were straightforward:

[Police] obtained a search warrant for 1363 Patricia Avenue that authorized a broad search of the house and premises for, among other things, deadly weapons and evidence of gang membership. In light of the high degree of risk involved in searching a house suspected of housing at least one, and perhaps multiple, armed gang members, a Special Weapons and Tactics (SWAT) team was used to secure the residence and grounds before the search.

At 7 a.m. on February 3, 1998, petitioners, along with the SWAT team and other officers, executed the warrant. Mena was asleep in her bed when the SWAT team, clad in helmets and black vests adorned with badges and the word "POLICE," entered her bedroom and placed her in hand­cuffs at gunpoint. The SWAT team also handcuffed three other individuals found on the property. The SWAT team then took those individuals and Mena into a converted garage, which contained several beds and some other bed­room furniture. While the search proceeded, one or two officers guarded the four detainees, who were allowed to move around the garage but remained in handcuffs.

Mena, a legal immigrant (not to mention a woman) who was not the target of the search, was held in handcuffs for three hours.

The court held that being detained for "only" two or three hours did not violate Mena’s reasonable expectation of privacy. In other words, if you happen to innocently be in a house that is subject to a search warrant executed by a SWAT team, then you should "expect" to be detained in handcuffs for…well, for however long it takes.

Now combine this ominous holding with that of Caballes, which now gives police permission to perform a dog sniff of your vehicle without probable cause as long as you’re not "inconvenienced." But hold on -- Mena now holds that even three hours in handcuffs isn’t "unreasonable." How much of a cognitive leap will it be to argue, in light of Mena, that detaining you and your car for "just a few minutes” while the officer who pulled you over waits for the sniff dog to show up is also “reasonable”?

As I blogged previously regarding Caballes, there is no clear reason why mass sweeps, without individualized suspicion, of parked cars on public roads or in public garages by sniff dogs would now not be deemed permissible. Now add in Mena and all restraint on automotive searches and detentions may now be extinct.

It should be noted that Justice Stevens, joined by three other justices did submit a concurring opinion that would have left the issue of the reasonableness of the duration of the search to a jury (i.e., via a 42 USC 1983 lawsuit for violation of Mena's civil rights). Justice Stevens' presentation of the facts tells a much more detailed (and sympathetic) version for Mena (e.g., that she was barefoot and it was raining, hence she was hardly a flight risk).

The only other post I’ve seen on Mena is at Crime & Federalism, and it's good.

Related Post:
Supreme Court Upholds "Quick" Dog Sniff of Vehicle
Maryland's Idiot Judges: Police Dogs "Part of the Family"
A Search & Seizure Double-Play
Hair-Shaving and the Fourth Amendment
Tipping and the Bill of Rights

The Supreme Court unanimously upheld a decision that Individual Retirement Accounts qualify for the bankruptcy protection generally available to other retirement assets such as pensions.

Um, duh. It's an Individual Retirement Account. The issue seemed to be whether, because a person can withdraw funds from an IRA — with a 10% penalty — that somehow disqualified the accounts. Um, duh.

To the extent that one supports the "retirement shield" rule, this one was a no-brainer.

Also, the Court denied certiorari to an appeal from Texas concerning dog sniffs.

After the dog was walked up Mr. Smith's driveway and signaled the presence of drugs behind the lower corner of the garage door, the Harris County Sheriff's Department obtained a search warrant and found the drugs and other criminal evidence. A state appeals court rejected Mr. Smith's appeal, upholding his conviction and his sentence to 37 years in prison.

The district attorney's brief cited a variety of lower-court precedents that had upheld canine sniffs as not amounting to searches: in the common corridor of a hotel, outside an Amtrak sleeper compartment, outside an apartment door, at the exterior of a home. These activities were found not to "implicate Fourth Amendment concerns," he said, because "society clearly is not willing to recognize as reasonable or legitimate an expectation of privacy in the possession of narcotics."

Now, with the required acknowledgement that denial of cert does not constitute an endorsement of a lower court opinion, this latest non-ruling certainly doesn't help the continued elevation of the sniff dog above individual rights. See my most recent post.

The interesting — and disturbing — thing about the declined dog sniff case, besides the fact the Court is letting a conflict in the lower courts continue unresolved, is the fact pattern in the Texas case.

One might think that the moment the police, with their dog, stepped on to Smith’s driveway, his privacy rights were being implicated. Well, one would be wrong. Under current Fourth Amendment jurisprudence, a person’s home does not necessarily include his yard, driveway, or any other exterior aspect to the property. The fancy legal term is curtilage.

So my question is this: Suppose Mr. Smith erected a twelve-foot high stockade fence all around his property, effectively cutting off open access to his curtilage. The dog could never have been walked up the driveway, could not have alerted to the drug scent behind the garage door, and so on.

Now, a textualist like me must admit that the Fourth Amendment says people shall be secure in their “homes” not their “property.” But on the other hand, when do you say to yourself “I’m home.”? When you pull into your driveway, or do you wait until you’ve walked through your front door?

For more on the Fourth Amendment and curtilage, see generally U.S. v. Dunn, 480 U.S. 294 (1987).

There are were many other issues at play in the Texas case, especially how the Court will eventually reconcile its current shameful “sniff dogs are, so far, never a search” thinking with its (sane) decision in Kyllo v. U.S., 533 U.S. 27 (2001), that heat-sensing equipment pointed at a home is a search.

A heat sensor is a device but a sniff dog isn’t? Feh. The heat sensor peers into the interior of the home but a dog’s nose doesn’t? Feh. Heat sensors are fallible but a dog’s nose (or his police officer handler) isn’t? Feh.

And there’s still the last great unanswered question regarding dog sniffs: whether a dog sniff of a person constitutes a search under the Fourth Amendment. If and when that fact pattern appears, it may well be the last chance for the Court to step back from the precipice to which it has brought itself — and us — perilously close.

One of the arguments used in defense of intrusive dog sniffs of -- well, of just about everything at this point -- is that the dogs are only sniffing for contraband such as narcotics.

Well, flush that argument down the toilet along with your white powdery substances:

Three Devon and Cornwall [U.K.] Police dogs have just completed a training course to enable them sniff out large sums of hidden money.

They have been working in South Wales to find cash being smuggled through the South West's main airports and ports. They are also able to locate hidden money during raids on properties.
...
Mr Jordan said: "The force will be allowed to keep up to 30% of the criminals' money the dogs find."
...
The force's sniffer dogs are called to about 1,000 incidents a year.

I have no idea how common “money-sniffing dogs” are in law enforcement, but the last time I checked, the simple act of possessing currency was, without more, perfectly legal.

So now it’s not “just illegal substances,” the petard by which the Supreme Court has hoisted its entire sniff dog jurisprudence. No, now the dogs are able to sniff out legal substances that have a (potential) connection to illegal substances.

What’s next? Training the dogs to sniff out leather briefcases, which might hold money that might be connected to contraband?

And what of this 30% “finder’s fee” the police get to keep? No moral hazard problems there, I’m sure -- we all know the police never cheat.

The more BBC newsfeeds I read, the more this whole “ignore foreign law” concept is starting to win me over.

Two key (and false) premises in the Supreme Court’s "sniff dog" jurisprudence (see post chain below) are that the dogs are infallible and that, since the dogs are only sniffing for illegal substances (i.e., drugs or explosives), "by definition" there can be no expectation of privacy from them.

There has been a mountain of evidence contradicting the first premise. Now we also have yet another counterexample negating the second:

You've heard of Bomb dogs? Drug dogs? Arson dogs? Now, Man's Best Friend is the latest weapon in the war on mold.

Traditional mold detection methods can be costly and drag on for weeks. Certified Mold Dogs generate quicker and more accurate results, which leads to lower remediation costs for homeowners and insurers.

First of all: "Certified" by whom exactly?

Anyway, a concerned homeowner who wants to know whether she has mold in her home and therefore hires a mold-dog firm raises no privacy red flags at first glance. But there is a secondary phenomenon arising: homeowners using mold dogs to challenge insurance denials for remediation claims. Insurance litigation can now literally reduce to "man versus dog" (or, more correctly, "lab versus dog").

Here again, the cult of infallibility regarding dog sniffs can have serious legal implications. Are we now going to see insurance companies forced to pay mold remediation claims that lab testing says is not necessary, based solely on the legal fiction of "the nose knows"?

Or perhaps we'll see the other edge of the sword. If the homeowner's human-based test results say mold, will insurance companies be entitled to require, as part of discovery, giving their mold dogs access to the home? How would you like it if, as part of an insurance dispute, you were required to let a mold dog rummage through your home?

Even the smallest baby steps toward greater reliance and trust in sniff dogs are steps in the wrong direction. They are not infallible. They are not immune from manipulation. They are not, in this context, "man's best friend" or "part of the family." They are just another tool to be used, and abused, in the erosion of privacy rights.

Oh, and for the animal lovers among the readership: there is also concern as to the humaneness of having dogs inhale toxic mold for a living. The ASPCA is reportedly investigating the practice.

Hat tip to Notes from the Legal Underground.

A whimsical reminder of the dangerous fallacy (held by, among others, the Supreme Court) that sniff dogs are infallible and only sniff for illegal substances:

When police sniffer dogs couldn't trace drugs, the Australian state police force soon discovered the reason: the cocaine sample used to train them was talcum powder.

Seven dogs that had worked on drug searches over the past three months will need to be retrained, Victoria Police Assistant Commissioner Paul Evans said Friday.

"I'm sure our dogs have got very soft, nice smelling noses at the moment, but they are in fact trained in detecting talcum powder so that means that they will have to be retrained in detecting cocaine," he told reporters.

Seriously though, the dog sniff, qua technology, is hardly foolproof and is subject not only to incompetence such as this, but also to deliberate misuse by police.

We are on a very slippery slope in our dog sniff jurisprudence. Perhaps anecdotes like this will help the push for putting some "bite" back into the Fourth Amendment.

A local hack politician in Florida wants to bring back the Scarlet Letter:

A Florida state senator wants to require convicted drunken drivers to have license plates that start with "DUI."

The proposed law would also require bright pink license plates on vehicles driven by people with restricted driving privileges due to convictions for driving under the influence.
...
The bill also says police "may stop any vehicle that bears a DUI plate without probable cause to check the driver."

Heck, what's a pesky little constitutional concept like "probable cause" when there are lives at stake (or at least grandstanding press conferences to be held)?

Punishing drinking and driving is one thing. Shaming and harassing people who are driving safely and sober is something quite different.

The concept of "DUI plates" might -- might -- serve a sufficient deterrent effect to be a legitimate program. But past criminal conduct is (generally) not even admissible in court under the rules of evidence, so why should it be grounds to scuttle the Fourth Amendment?

The libertarian wing of the Blogosphere is very much abuzz about this report regarding an extension to the Violence Against Women Act to cyberspace:

Buried deep in the new law is ... an innocuously titled bit called "Preventing Cyberstalking." It rewrites existing telephone harassment law to prohibit anyone from using the Internet "without disclosing his identity and with intent to annoy."

Some hasty stitches:

--The relevant code section is 47 USC 223.

--The word "annoy" appeared in the original VAWA; that is not the new language. Rather, the amendment extends the "annoy" element to the Internet as well as to the telephone. I do of course consider "annoy" to be an unconstitutionally vague term, but let's acknowledge that its presence in the statute is not new. What is an "annoying" blog? Who knows? But then again, what is an "annoying" telephone call?

--The law applies, at most, to emails and not, contrary to all the panic, to web message boards and especially not to blogs. The statute requires a "transmission" — a website is not a "transmission" and is clearly not covered by the amendment. This is, at most, about anonymous e-mails that are intentionally sent (i.e., "transmitted") to specific email addresses. I "send" (i.e., transmit) emails but I don't "send" (i.e., transmit) my blog anywhere — readers seek it out.

--Indeed, if you follow the statutory trail carefully — i.e., jump from the new section (h)(1)(C) to its reference of the original section (a)(1)(C) — it becomes apparent that the amendment isn't even about emails, but about Internet-based phone calls (e.g., Vonage). The extension to "the Internet" is referring to one who "makes a telephone call or utilizes a telecommunications device." A computer can be a "telecommunications device," but a blog cannot.

--Also lost in the hysteria is the fact that the "transmission" must be "obscene, lewd, lascivious, filthy, or indecent." Again, I'm not endorsing the law or the amendment generally, or these terms specifically. But it deserves repeating that it is not now a crime merely to have an anonymous blog or to post an anonymous message on Usenet that somebody, somewhere, finds "annoying."

There's plenty not to like about VAWA, this amendment and the political machinations that made it possible. But histrionics about "the end of anonymous blogging" don't contribute to the debate and merely allow the hack politicians to dismiss otherwise valid objections as "misinterpretations from the lunatic fringe."

Chancellor Palpatine was wrong: Your anger does not give you focus.

More thoughts at Hammer of Truth, Running Scared, Objective Justice, Homeland Stupidity, Say Uncle, Crime & Federalism, De Novo, Concurring Opinions, VodkaPundit, Malcontent, Moderate Voice, American Future.

(Originally posted 9 January 2006.)

The warrantless wiretap scandal has introduced a new term into the lexicon: "Fourth Amendment absolutist." The term is used, disparagingly, by apologists for the policy and is a mundane straw man argument: If you don't agree with with warrantless wiretapping, then you must think that there can never be any exceptions at all to the Fourth Amendment.

Perhaps there are "Fourth Amendment absolutists," but I'm not one of them:

On the afternoon of August 27, 1998, seven Detroit police officers approached the home of Booker T. Hudson seeking to execute a valid search warrant for narcotics and weapons. Upon reaching the door, several officers shouted, "Police, search warrant," but did not actually knock on the door. After waiting only three to five seconds ... the officers opened the unlocked door and proceeded into the home. ... Upon entering, the officers found Hudson sitting in the living room and several other people running throughout the house. On Hudson's person, the police discovered five rocks of crack cocaine. Elsewhere in the house police found numerous baggies of cocaine and a loaded revolver.

Hudson was charged ... with possession of cocaine with intent to deliver and with possession of a firearm during commission of a felony. Hudson moved to suppress the evidence found in his home on the ground that the failure to knock and announce before entering violated the Fourth Amendment and Michigan law.

Cut to the chase: the Supreme Court is now reviewing the case.

The formal "Question Presented" is as follows:

Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a Fourth Amendment "knock and announce" violation?

The informal "question presented" is as follows: Is there a constitutional right to "flush it down the toilet"?

I say: No, there is no such right.

The police had a valid warrant, announced their presence and entered through an unlocked door. This is troubling to civil libertarians — why?

Here's what I don't get: If the defendant hadn't been home when the police showed up (which the police thought was the case), then none of this would be an issue. How does his being home affect the legal reasoning, except if one argues that he had a right to hear the "knock" (didn't he hear the "announce"?) and make a dash for the bathroom. How did a "20-second headstart" become a constitutional requirement? Especially when the warrant is for, not only drugs, but also a weapon. Twenty seconds is more than enough time to lock and load — and kill a cop or two.

Knock-and-announce serves one purpose and one purpose only: to give criminals a chance to destroy the evidence (or to escape). It seems obvious that a de minimus oversight that was not the result of intentional police misconduct, and that in no way affected the outcome of the arrest and the seizing of evidence, should not vitiate the entire prosecution.

I certainly believe, strongly, in the broad concept of the Exclusionary Rule (a doctrine that appears nowhere in the Constitution, incidentally). But to expect perpetual perfection by police in "hot" situations such as serving a warrant for a weapon, and to then quash cases for the sake of nit-picking, is to go too far. Michigan and the Department of Justice are right on this one. Failure to knock as part of "knock and announce" should only trigger the exclusionary rule if the misconduct by police does not prevent misconduct by the suspect (i.e., an opportunity to destroy evidence). In other words, if the police misconduct merely denied the defendant the opportunity to engage in his own misconduct (e.g., to flush the evidence), then the Exclusionary Rule should not apply.

The real threat to the Fourth Amendment, as we are seeing, is in circumventing the warrant requirement altogether. That was simply not the case here. Knock-and-announce is a good idea, but it not worthy of "Fourth Amendment absolutism."

The case is Hudson v. Michigan, No. 04-1360.

UPDATE: The Supreme Court has scheduled a re-argument of the case before all nine justices (the case was argued before Justice Alito joined the Court). This suggests a 4-4 deadlock or some other convoluted vote. Stay tuned. More thoughts at SCOTUSblog.

I have very little to say about the Supreme Court's ruling in Hudson v. Michigan, 04-1360 (PDF - 51 pages) — narrowly holding that the exclusionary rule is not an absolute and does not trump the inevitable discovery rule in an incorrectly executed "knock and announce" raid — that I didn't already cover in this previous post.

Before libertarians get all in a lather, let's keep the facts of this case in mind:

--There was a perfectly valid search warrant.

--The Fourth Amendment says nothing about "knock and announce." Nor, for that matter, does it even mention the exclusionary rule.

--The exclusionary rule has always meant that police misconduct is a necessary, but not a sufficient, condition for suppression of evidence. See U.S. v. Leon, 468 U.S. 897 (1984). This is the crux of the majority's opinion and is wholly logical. Similarly, the inevitable discovery rule has long been held to trump the exclusionary rule. See, e.g., Nix v. Williams, 467 U.S. 431 (1984). This latest case is hardly a radical departure from precedent (or common sense, for that matter).

--The warrant was for weapons as well as for narcotics (and both were found). Anyone care to make the argument that there is Fourth Amendment "right to lock and load"?

The tragedy of the Supreme Court's Fourth Amendment jurisprudence is the increasing disregard for the warrant requirement itself, not this case's reiteration of a longstanding and reasonable procedural rule.

By all means damn the drug war. By all means damn sloppy policing and excessive force. But don't damn this ruling — it doesn't deserve it.

More thoughts from SCOTUSblog, Below the Beltway.

For the second time in two weeks I am fully supportive of a Supreme Court ruling that does not find a Fourth Amendment violation.

In ... Samson v. California (04-9728), the Court decided that the Fourth Amendment does not prohibit a police officer from searching a parolee, even without a warrant. ... The Court, in an opinion written by Justice Clarence Thomas, relied heavily upon a 2001 precedent, U.S. v. Knights, [534 U.S. 112 (2001),] allowing a warrantless search of the apartment of a probationer. Parolees, Thomas wrote, have fewer expectations of privacy than probationers. The ruling was by a vote of 6-3.

Entirely correct. Some hasty stitches:

--If there is no "right to parole," then there can be no "right to parole without restrictions." If the convict doesn't want to consent to unlimited and unrestricted warrantless searches during the length of his parole, then he can serve out his sentence in jail. It's like any other proposed contract: "offer + acceptance" or "offer + rejection."

--Last week's case, Hudson v. Michigan, 04-1360, which aroused such bizarre libertarian outrage, was about a search subsequent to a valid warrant. This case carves out an entirely new (but wholly correct) exception to the warrant requirement itself. Therefore, one would think that any libertarian upset with last week's holding should be even more upset with this one. Will they be? Somehow I'm skeptical.

--On the other hand, given the ongoing sex offender mania and its premise of permanent recidivism as the basis for lifetime registries and prohibitions on residence and occupation and such, one wonders whether some activist legislature will now jump the shark and propose extending Samson to a lifetime forfeiture of Fourth Amendment protection for convicted sex offenders, even after the term of the parole has ended. Now that would be an outrageous law and a scary Supreme Court case.

More thoughts from Sentencing Law & Policy, Concurring Opinions, Crime and Consequences.

It's a basic legal premise that mere conveyance cannot convert bad title into good. In other words, if I steal your iPod and then sell it on eBay, you can still recover it, even though neither the buyer nor eBay knew, or had any reason to know, whether the iPod was stolen.

Should not the same principle apply to the police when acquiring personal data?

Numerous federal and local law enforcement agencies have bypassed subpoenas and warrants designed to protect civil liberties and gathered Americans' personal telephone records from private-sector data brokers.

These brokers, many of whom advertise aggressively on the Internet, have gotten into customer accounts online, tricked phone companies into revealing information and even acknowledged that their practices violate laws, according to documents gathered by congressional investigators and provided to The Associated Press.

The law enforcement agencies include offices in the Homeland Security Department and Justice Department — including the FBI and U.S. Marshal's Service — and municipal police departments in California, Colorado, Florida, Georgia and Utah. Experts believe hundreds of other departments frequently use such services.
...
None of the police agencies interviewed by AP said they researched these data brokers to determine how they secretly gather sensitive information like names associated with unlisted numbers, records of phone calls, e-mail aliases — even tracing a person's location using their cellular phone signal.

Read the whole thing.

Now compare and contrast this law enforcement tactic with Hudson v. Michigan, the recent (correctly decided) exclusionary rule holding that I defended in this post. The evidence in Hudson was not proximately obtained via the constitutional violation of "knock and announce," and applying the exclusionary rule would not have been "restitutional" to the defendant but strictly punitive to the police. Stated differently, excluding evidence that would have been found anyway, as many libertarians advocated, would not correct a miscarriage of justice to the defendant but would simply serve as a vindictive reprimand to the police. That is simply not a core Fourth Amendment concept.

Here, however, we have the exact opposite. The evidence obtained by these data brokers is, typically, fraudulently obtained information — the brokers have the equivalent of "bad title." And it is still bad title when they sell (or give away) the records to the police — who apparently believe they have no obligation to determine whether they are dealing with law-abiding businesses. It is still tainted evidence that would never have been found without the subpoenas or warrants that the police simply (and impermissibly) chose to bypass. This is when a libertarian's Fourth Amendment siren should be blaring and the exclusionary rule should be demanded as a constitutional right. The exclusionary rule is about what to do with improper evidence, not improper procedures.

Congress is holding hearings this week to explore the data broker scandal. What might we learn about these law enforcement abuses?

Many of the executives summoned to testify before Congress this week were expected to invoke their Fifth Amendment rights against self-incrimination and to decline to answer questions.

Bill of Rights for thee but for me? Go figure.

I guess the first rule of Radley Balko is, you do not talk about Radley Balko:

My Independence Day post triggered [an] odd response from Kip Equire [sic] ... Kip's dismissal is as dead wrong as it is flippant.

This all started when a third-party blog cited this Balko piece:

[W]e rose up and revolted against a government that was far less intrusive, invasive, and -- at risk of hyperbole -- tyrannical than the one we have now. My guess is that alcohol prohibition alone would've been enough have Payne or Jefferson calling for arms. Never mind the New Deal, the Great Society, or today's encroaching police state.

My comment at that third-party blog was a flippant simple one:

Balko's piece is pure anti-history. Independence was declared, and the Revolution was fought, over taxes and money -- see the Stamp Act and the Intolerable Acts. "Police state" issues were generally not the problem.

Which prompted that "first rule of Radley Balko" response:

Now, I suppose you could argue that despite their objections to general warrants when it comes to the smuggling of mercantiles, Madison, Jefferson, Washington, and the gang would've been hunky-dory with issuing such writs to fight the scourge of drugs. But I think you'd have a hard time arguing that the same men who thought the Stamp Act to be tyrannical would have no problem with cops kicking down the doors of civilians in the middle of the night. And given that a good many of the founders grew hemp and smoked cannabis, I have my doubts that they'd have been amenable to a "drug exception" to the Bill of Rights.

Let's look first at Balko's original piece and then his screed against me.

---

Contrary to Balko's analysis, if you read Thomas Jefferson's list of 27 specific grievances against King George III in the Declaration of Independence, only one* directly relates to what we today would call "civil liberties" abuses:

For depriving us in many cases, of the benefit of Trial by Jury:

Every other grievance falls into one of three categories: (1) infringements upon property, money, commerce or seafaring (what today we would call "commerce power abuses"); (2) inadequate legislative and judicial processes (what today we would call "separation of powers abuses"), and (3) unfair taxation (what today we would call "unfair taxation"). Balko lops in all the separation of powers abuses as violations of civil liberties, which is a bait-and-switch that misses my point entirely. I neither claimed that King George wasn't a tyrant nor that the Framers didn't think so too. Indeed, the point is precisely that they considered King George, the man qua king, to be the tyrant and not the British government as a whole. It's very sloppy history to fail to distinguish the two in the manner Balko does.

In any case, the terms "knock and announce" and "exclusionary rule" appear nowhere in the document. Neither, for that matter, do "search, "seizure," "arrest," "warrant" or "evidence." Ditto for "hemp" and "cannabis."

So explain to me again how the Revolution was fought over the knock-and-announce rule, or about George Washington's hemp crop? Which did we all learn in grade school: "No taxation without representation!" or "Dude, where's my bong?"

---

Now about Balko's rather sad misrepresentation of my position regarding Hudson v. Michigan, No. 04-1360 (2006).

I don't know whether Balko was writing from ignorance or malice, but no reasonable person without an agenda could possibly read my posts and conclude that I consider knock-and-announce violations to be "hunky-dory." Even the police themselves acknowledged that their conduct was improper and that there was an unequivocal constitutional violation.

The only question was one of remedy, and my view has simply been, all along, that there is a role for proximate causation analysis even in questions of constitutional harm. The specific violation of knock-and-announce that occurred in Hudson did not proximately cause any improper obtaining of evidence, so it is illogical to suggest that the correct remedy should have been to exclude that evidence. No cause, no effect. It was never the rationale behind the exclusionary rule to quash every single prosecution where there was any kind of constitutional violation, no matter how de minimis. Nor should it be. Stated differently, a Fourth Amendment violation is a necessary, but not a sufficient, condition to invoke the exclusionary rule.

And I most certainly have never suggested anywhere in my writings that there is or should be a "drug exception" to the Fourth Amendment. But that too is a bait-and-switch by Balko. The proper way to fight the drug laws is, well, to fight the drug laws, not to say it's constitutionally "hunky-dory" to blow away** cops who are trying to exercise perfectly valid search warrants pursuant to laws you happen not to like. That's not libertarianism, it's bloodlust.

These are not difficult concepts. Yet Balko cannot distinguish them from the bizarre and imagined Jurisprudence of the Hunky-Dory that he bizarrely ascribes to me.

Balko's a smart guy and a great writer. But he needs to fact-check himself a little more thoroughly and develop a somewhat thicker skin when people point out his errors rather than opting for misrepresenting both history and other people's blogposts.

---

(*The grievance against quartering of soldiers, the instigation for the forgotten Third Amendment, could be considered a civil liberties abuse rather than a property rights violation. But the quartering of soldiers was, relative to July 1776, a then-recent phenomenon specifically authorized in the then-recent Intolerable Acts and not a longstanding abuse inflicted upon the colonists. Similarly, the penultimate grievance against impressment was not an abuse many colonists had to worry about and was hardly a prominent factor in the debate over Independence.)

**That perfectly valid warrant in Hudson was also for weapons, which were in fact found during the search. Critics of the decision love to omit that pesky little detail.)

A few years back I was riding in a taxi that was pulled over for some infraction, probably running a yellow-turning-red traffic light.

The police officer, utterly oblivious to me, asked the cabbie for his log and hack license and such, while I just sat there. After about two minutes, I finally stuck my head out the window and asked the officer, "Hi, do you need me?" He said no, and I promptly left the scene. He could have said that upfront, but at least he left me alone.

Now, shame on me — Mr. "A+ in CrimPro I Bigshot" — but I had no idea whatsoever what the state of Fourth Amendment jurisprudence was regarding passengers during a vehicle stop. And I certainly didn't have the balls self-confidence to simply leave without fear of provoking the officer. I, like most people, tend to pacify myself around armed law enforcement.

Which is why this statement boggles my mind:

California argues, a passenger in a car stopped in a normal traffic stop ordinarily would not be "seized" because a reasonable, innocent person would have believed he was free to decline the officer's requests or otherwise terminate the contact.

Oh really? I have no idea what one can and cannot do under such circumstances, but Joe Sixpack does? Yeah right.

Nevertheless, that is one of several arguments the State of California is making in Brendlin v. California, No. 06-8120, which is being argued today before the Supreme Court:

Bruce Brendlin was a passenger in a car driven by Karen Simeroth when she was stopped by a Sutter County Deputy Sheriff. During the stop, the deputy asked Brendlin to identify himself, which he did. After running a check, the deputy learned that Brendlin was wanted for failing to report to his parole officer, ordered him out of the car, and placed him under arrest. After a search incident to arrest unearthed drugs and drug paraphernalia in the car and on Brendlin's person, Brendlin was charged with manufacturing methamphetamine.

Apparently California believes that the Fourth Amendment simply does not apply to Brendlin because he was never "seized" (i.e., he not only was free to simply walk away, but also knew or should have known that fact without even asking the deputy).

Yeah right. I've seen enough episodes of "COPS" to know that it just doesn't work that way. When a car is stopped, the police never simply let passengers "walk away." To seize an automobile is to seize everyone in it. That's even been true for buses.

(Incidentally, what if the stop occurs on a highway? How is a passenger like Brendlin supposed to "just walk away" then? Is there no such thing as "constructive seizure" under the Fourth Amendment?)

The question of what Fourth Amendment rights a passenger of a stopped vehicle may or may not have isn't what's irking me here. It's the absurd presumption that, whatever those rights are, the passenger is expected to know them and should not be permitted to argue after the fact that he was "improperly" seized, because he was in fact never seized — properly or improperly — in the first place.

Strange how the Court presumes that people cannot be expected to "just know" their (far less complicated) Fifth and Sixth Amendment rights — hence Miranda v. Arizona, 384 U.S. 436 (1966). But the far more convoluted Fourth Amendment automobile jurisprudence? Self-apparent, and no warning necessary.

That simply cannot be right.

While this question has never been addressed head-on, California's argument goes against indirect precedent suggesting that "seizing a vehicle" means "seizing the occupants." Hopefully the Court will not only extend those precedents to their logical conclusion but will also impose a Miranda-style requirement that police clearly inform people of their Fourth Amendment rights during vehicle stops.

Wishful thinking, I know.

---

UPDATE: Great minds think alike --

CHIEF JUSTICE ROBERTS: Well, it wouldn't apply in a taxicab, right? I mean, the cab is driving erratically, the officer pulls it over. If I'm a passenger in the cab, I think I can get out and catch another cab, right?

Justice Kennedy, meanwhile, just plain nails it --

JUSTICE KENNEDY: You're representing the State of California and you want to establish the proposition that any time there is a traffic stop in the State of California or I guess anywhere in the United States all the passengers are free to immediately leave, absent some further countermanding officer -- order by the officer. I think that's a quite surprising proposition. Now, we don't have empirical studies and so forth, but at some point the Court takes judicial notice and I think indications from the bench are we just don't think passengers, A, are or, B, should feel free to leave when there's a traffic stop. I just think you have no social or empirical documentation for that position.

Keep in mind that this case has many moving parts and is not just about whether a "reasonable" passenger knows his Fourth Amendment rights in a vehicle stop. That's just the issue that interests me the most in this case.

To review: Never, ever consent to a search:

Consent to search a suitcase for drugs revealed two candles that appeared to the officer to have been tampered with because they looked tampered with. Inside was drugs. The consent to search for drugs in a suitcase includes any closed containers inside that could contain drugs. United States v. Santana-Aguirre, 2007 U.S. Dist. LEXIS 47760 (D. Neb. June 29, 2007), following United States v. McKines, 933 F.2d 1412, 1423 (8th Cir. 1991) (en banc) (soft drink bottle inside suitcase contained drugs).

The police are well-skilled in this. "Mind if I take a look?" "Anything in here I should know about?" "I'm just gonna take quick peek, okay?" The only correct answer is, "I consent to nothing."

Once you consent to a search, you have completely waived your Fourth Amendment rights regarding that search. You generally cannot revoke your consent, nor can you easily consent to a "partial search," as this fact pattern demonstrates.

I have argued before that there should be Miranda-style warnings for all constitutional rights that may trigger during an encounter with law enforcement. "You have to right to withhold consent." "You have the right not to allow me inside." "You have the right to leave this area." And so on.

To invert a favorite of the police: "If they're not doing anything wrong, then why should they object?"

---

Another fact pattern that I'm seeing too often is people who audio-record or videotape police encounters (including their own arrests) being charged with offenses such as disturbing the peace, obstructing governmental administration or -- most insanely -- illegal wiretapping.

The courts need to start handing down some bright-line rules on this subject. Two good starts would be:

1. Anyone can record anything that occurs on a public street. Period.

2. Anyone can record anything that occurs in their own vehicle. Period.

As for the police, "If they're not doing anything wrong, then why should they object?"

Here's a video for those of you who like to note the increasingly recurring issue of "police don't like it when you videotape them" —


It's not entirely clear what's going on, but apparently the videographer ("Zak") was not the driver of the vehicle. He was clearly not disruptive, was not interfering with the traffic stop and was at a distance of perhaps 20 yards.

Yet the officer, upon seeing the video camera:

--demanded his ID (a constitutional violation in and of itself)

--arrested him for a trumped up "public intoxication" or "disorderly conduct" charge.

Make of it what you will.

UPDATE: The arrestee, Zak George, has posted a follow-up video with more details.

...but not until it's finished:

An officer went to a site where defendant was building a home. It was fenced, and the gravel driveway was blocked by a locked gate. "No Trespassing" and "Beware of Dog" signs were posted at the entrance. The officer climbed over the gate and was later joined by another officer. The unfinished house on the property was framed but had no sheet rock or doors, and no one appeared to be living there. The property fell within the "open fields" doctrine and thus was not protected by the Fourth Amendment. The unfinished structure was not a "dwelling" under the Fourth Amendment and did not yet have the protection of curtilage. Defendant's effort to maintain his privacy through fences and signs did not afford the property Fourth Amendment protection. While on the property, the officers could look at the serial number of a stolen trailer.

Interestingly, my version of the Fourth Amendment does not contain the words "unfinished," "open fields" or "curtilage." These are all overlays added after the fact to dilute the plain meaning of the amendment's uncomplicated protection: no unreasonable searches.

It is hardly self-apparent that whether a dwelling is or is not "finished" is a legitimate way to answer the question of reasonableness, and certainly not more legitimate than the unambiguous intent of erecting a fence, gate and "No Trespassing" sign. The better question to ask than, "Is it finished?" is simply, "Is this warrantless search reasonable?" Which is just as easily rephrased as, "Would it have been unreasonable to require the officers to get a warrant first?" Phrased that way — phrased in any way that incorporates a presumption of liberty and privacy (which is itself the only reasonable presumption, or why have a Fourth Amendment in the first place?), the search was clearly unconstitutional.

This puny case in a puny Georgia court is not earth-shattering, and will not lead to a robust jurisprudence of what does and does constitute "finished" in the context of dwellings — complete with journal articles, symposia, moot court debates and circuit splits. I just found it a particularly egregious example of a particularly egregious body of law — one that is on my list of Worst Supreme Court Cases.

The case is Morse v. State, 2007 Ga. App. LEXIS 1161 (November 1, 2007).

Depressing Fourth Amendment decision from a lower court:

Plaintiff's car was suspected of being at the scene of several burglaries in 2002, and the police decided, after consultation with supervisors, to plant a GPS with a cellphone transmitter on the car. Plaintiff's Fourth Amendment claim failed[.]

Interesting that the officers had time to consult with "supervisors," but not with a judge (i.e., to obtain a warrant based on probable cause).

From the decision:

A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." United States v. Knotts, 460 U.S. 276 (1983). The use of the GPS Device did not permit the discovery of any information that could not have obtained by following an automobile traveling on public roads, either physically or through visual surveillance (e.g. through the use of cameras or from a helicopter), conduct that neither requires a warrant nor implicates Fourth Amendment rights. "Nothing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afford[s] them." Id. at 282.

This is, of course, utter nonsense.

First of all, the owner of the container in Knotts consented to the placement of the beeper in the container that he sold to the defendant in that case. So clearly Knotts is distinguishable. The additional pesky fact that the beeper in Knotts was placed in the container before it was loaded onto the vehicle, rather than on the vehicle itself, was brusquely dismissed by the trial court as irrelevant.

Note also the astonishingly absurd cognitive leap from Knotts (which I actually think is a reasonable decision) to this gobbledygook. The fact that the police may -- from a distance -- watch you drive along public roads, and the corollary that they may "augment" their "sensory faculties" -- from a distance (e.g., via binoculars or a helicopter) -- now somehow means that the police may also trespass upon your chattel property, without a warrant (and perhaps without any individualized suspicion at any level). "From a distance" suddenly becomes "from the innards of your own vehicle." Splendid.

There are analogues elsewhere in the law: the notion that a sniff dog is not a "device" and therefore triggers little or no Fourth Amendment scrutiny; the notion that taser use triggers no heightened scrutiny and that this sometimes lethal weapon may be casually used whenever an officer deems it convenient.

The common thread across these fact patterns is the chilling doctrine that anything that makes police incursions upon people or property easier is presumptively valid. If you give law enforcement an inch, then the yard they later demand must be constitutional too? That simply cannot be right.

The case is Morton v. Nassau County Police Dep't, 2007 U.S. Dist. LEXIS 87559 (E.D.N.Y., November 27, 2007).

"Giulianiistically" —

Here, the court of appeals ... Giulianiistically invokes "9/11" and "Columbine", the latter of which alone semi attempts to make the point.
...
I bet this oral argument ... sure got the attention of the students when the questioning at argument essentially left them with the impression that they have no rights against search and seizure of their persons at school if there is now a "Columbine risk" exception to T.L.O.*

A little back story: A student forgot his ID and was consequently subjected to a frisk at school by security guards (not bona fide police) -- not for weapons, mind you, but for the ID. Don't worry — I don't understand it either. But you don't want another Columbine, do you?

Doubly depressing is that this case, which goes a long way toward completely eliminating the Fourth Amendment rights of students, appears on this blog just days after another case suggested an unlimited "Columbine exception" to the First Amendment.

The case is D.L. v. Indiana, 2007 Ind. App. LEXIS 2729 (December 7, 2007) (PDF - 14 pages).

---

Incidentally, the litigation (a suppression motion) arose from the security officials finding, not an ID, not a weapon, but 1.03 grams of marijuana — for which the student was forcibly removed from his family and committed to a juvenile facility for eighteen months. A year and a half in juvie for one gram of pot? I would think that is far more likely to trigger another Columbine than a modest respect for Fourth Amendment rights. But that's just me...

---

*New Jersey v. T.L.O., 469 U.S. 325 (1985) (holding that students do have some, if not full, Fourth Amendment rights in a school setting).