A Stitch in Haste

Exhibit A:

"If you have nothing to hide, then why not cooperate?"

A very old trap.

So old that it made the cut for the Bill of Rights.

So old that the arguments against it get forgotten sometimes:

In an unusual last-ditch move to find clues to the three-year-old killing of a freelance fashion writer, police investigators are trying to get DNA samples from every man in this Cape Cod hamlet, all 790 or so, or as many as will agree.

Raising concerns among civil libertarians and prompting both resistance and support from men in Truro, the state and local police began collecting the genetic samples last week, visiting delicatessens, the post office and even the town dump to politely ask men to cooperate.
...
Sgt. David Perry of the Truro Police Department and other law enforcement authorities here say that the program is voluntary but that they will pay close attention to those who refuse to provide DNA. "We're trying to find that person who has something to hide," Sergeant Perry said.
...
"They're not very effective and they're certainly not voluntarily," said Barry Steinhardt, director of the technology and liberty project at the American Civil Liberties Union. "It's either give a sample or you're a suspect. It turns the classic American concept of innocent until proven guilty on its head."
...
Craig Hathaway, owner of Dutra's Market, who said he felt he had to allow the police to approach his customers, will not give his DNA.

"If you have nothing to hide, then why not cooperate?"

The ACLU has formally asked law enforcement to stop the practice.

Excellent.

In a related context, an equally old trap is the friendly "Do you mind if I look around?" "May I search the vehicle?" "Is it okay if I just take a quick peek inside your bag?"

Consent is the most powerful tool in law enforcement. Not only because it so fully disarms one's Fourth Amendment rights, but also because the aura behind a consent request is often so casual -- service with a smile from your friendly neighborhood state trooper, TSA representative or FBI agent.

Sometimes I think it's amazing that the Warren Court never crafted a Miranda-type warning for consent solicitations: "You have the right not to consent to this search. If you consent to this search anything found as a result of this search may be used against you in a court of law." Such a warning might have actually been more useful over the years than Miranda ever was. (For details, see Schneckloth v. Bustamonte, 412 U.S. 218 (1973).)

I remember my surprise in reading Caleb Carr's The Alienist when he describes the early days of fingerprinting and the initial reluctance of the judiciary to admit it as evidence at trial. Now we recognize the immense evidentiary power of DNA. Shall we not also recognize the immense danger of abusing DNA, not only in the laboratory but also in the courtroom?

Bravo to the men standing up to this statist tactic. Bravo to the ACLU for challenging it. Shame on the Truro Police Department for invoking a intrusive, coercive and constitutionally questionable practice.

Exhibit B:

Okay, now I'm really angry --

Metro [District of Columbia] police officers are using new behavioral profiling techniques as they patrol subway stations, identifying suspicious riders and pulling them aside for questioning.

The officers are targeting people who avoid eye contact, loiter or appear to be looking around transit stations more than other passengers, officials said. Anyone identified as suspicious will be stopped and questioned about what they are doing and where they are going.
...
A similar observation regime at Boston's Logan International Airport has been challenged by the American Civil Liberties Union, which filed a lawsuit on behalf of an African American ACLU employee who said he was stopped and questioned by police for no reason after arriving on a flight from the West Coast.
...
"You can't use this very subjective sense of who's suspicious as a substitute for what the law would otherwise require...such as a basis for suspicion that someone is engaged in criminal conduct," said John Reinstein, legal director for the ACLU of Massachusetts.

So now "no eye contact" constitutes probable cause to detain someone?

It used to be "You fit the profile." Now apparently it's "You don't fit the profile. You're weird." Combine that with "May I ask you a few questions?" "May I take a quick peek inside your bag?"

Because, of course, "If you have nothing to hide, then why not cooperate?"

God help anyone who doesn't go to law school these days.

UPDATE: The blawg May It Please the Court has started an open thread on the Truro DNA situation. Chime in with your thoughts there as well as here.

probable: likely but not certain to be or become true or real; "a likely result"; "he foresaw a probable loss"

The Chief Judge of the Sixth Circuit Court of Appeals believes that the Constitution generally, and the Fourth Amendment specifically, have not been emasculated enough. The solution? Eradicate that pesky "probable cause" requirement:

My reading is that it does not require a belief that there is more than a 50% probability of evidence being found in a particular location. ... If that were the case, one could never get a search warrant to search all three cars of a person for whom there was overwhelming evidence of general drug dealing, and specific evidence of a drug transaction the proceeds of which were now certainly in one of three cars in his garage, and certainly not in any of the others. However, to be more than a hunch or a supposition, in my own mind, requires a legitimate belief that there is more than a 5 or 10 percent chance that a crime is being committed or that evidence is in a particular location.

Let me nitpick just one kernel of nonsense in all this offensive drivel. If there is a greater than 50% probability that drugs are in exactly one (let alone "at least one") of a suspected drug dealer's three cars, then of course that's "probable cause" to search all three cars as part of one warrant (or how about "probable cause to search all vehicles on the suspect's property or registered to suspect"?). How on earth can you possibly argue that the magistrate must "divide 50% by three"?

Fortunately, this gobbledygook came in the form of dictum in a concurring opinion rather than a majority opinion, so the chance of any precedential value being assigned to Chief Judge Boggs' failed foray into probability theory and combinatorics is, to borrow a phrase, perhaps "5 or 10 percent."

But even those odds are too risky for my tastes.

The case in question is U.S. v. McClain, No. 04-5887 at 10 (6th Cir., December 2, 2005) (Boggs, C.J., concurring) (PDF - 10 pages).

More at Concurring Opinions.

As for me, I very much prefer the former Chief Judge of the Seventh Circuit Court of Appeals. Go figure.

The first best way for law enforcement to circumvent the Fourth Amendment is to claim that a search isn't really a search. Because if a search is really a search, then you need probable cause (or a warrant based on probable cause) for anything seized in the search to be admissible in court. This is the so-called exclusionary rule.

The alternative, of course, is to dumb probable cause down such that almost anything constitutes it. Here are two recent examples of "anything and everything is probable cause" --

ITEM: Man's best friend continues to morph into liberty's worst enemy --

While drug- and bomb-sniffing dogs are a familiar part of law enforcement, canines specialized in detecting dollars have labored in relative obscurity.
...
Currency smuggling, officials say, is becoming more serious as financial regulators around the world tighten controls on bank accounts and wire transfers.

"The dogs are trained to detect dollars, no other currency," said instructor Sue Hunsaker, "and they are trained to find bulk, quantities of more than 500 bills. We don't want them to bother regular travelers."

So now dogs are sniffing for currency. Because currency is illegal, like smuggled narcotics? Because currency is dangerous, like explosives? No, because now the mere possession of money is, apparently, probable cause that a crime has been committed. Because of course no upstanding citizen carries money and therefore has no reasonable expectation of privacy in containers that might contain money. And we all know that dog sniffs are always infallible, right? (Via CrimLaw.)

---

ITEM: Perhaps next they'll train the dogs to sniff for condoms --

The first hint that VIP Sauna might not be a legitimate massage business is the heavily fortified metal door leading into the establishment, said Detective Clark Luntsford of the Boone County Sheriff's Department.

Not to mention the multiple locks on the door and outdoor surveillance cameras at the business, a battered A-frame at 5210 N. Highway 763. Luntsford said the real tip-offs, however, are the "house fee" -- $40 for a half-hour massage and $60 for an hour massage -- and the trash bag full of unused condoms, a grab bag for customers. "Normal massage parlors don't keep condoms in bulk," he said.
...
Boone County [Missouri] Prosecuting Attorney Kevin Crane said shutting down such businesses isn't as easy as it might appear. "We have to have the proof," he said.

What a hassle, needing "proof."

Again, apparently condoms are now sufficient probable cause to search a business. Or at least condoms behind a big metal dock with locks. (Via Market Power.)

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These skirmishes in the War on Probable Cause are not unlike what happened with the atrocious Supreme Court eminent domain ruling, Kelo v. New London, No. 04-108 (2005), in which the Fifth Amendment's "public use" requirement was deemed inconvenient, so it was simply redefined into such a weak concept as to become a non-concept (and therefore a non-limitation).

The same thing is happening here with the Fourth Amendment's probable cause requirement: If you don't like the limitations, then ignore them. If you can't ignore them, then water them down until they don't stop you anymore.

You don't need a police dog's nose to know that stinks.

...the profile being, of course, "male" --

Four thousand men face DNA testing in a bid to find the killer of Sally Anne Bowman. The 18-year-old model was bitten, sexually assaulted and stabbed to death just metres from her home in Croydon, Surrey, last September.
...
Detective Chief Inspector Stuart Cundy said it was believed the killer has an "incredibly strong local connection". He may live or work in the area or have family there, said DCI Cundy, who is leading the investigation. There may be up to 2,500 local men who fit the description of the attacker.

DCI Cundy warned those people who did not step forward to give DNA via fingerprinting and a mouth swab could expect to be visited by police.

"The letter asks men who live or visit the South Croydon area, who are white or light-skinned and were born between 1965 and 1985 to voluntarily provide their DNA,'' he said.

And if you don't "voluntarily" provide your DNA, then what? Does that make you a suspect? Will the police simply seek a warrant compelling you to give a sample? Will you be added to some permanent list of "non-cooperative citizens"?

There is no fundamental difference between "everyone's a suspect" and "guilty until proven innocent." This was a murder. But next time will it be a rape? A burglary? Will the dragnet be people in "the neighborhood" or the town or the county or the country? If you believe in dragnet DNA sampling, then why not cut to the chase and simply require mandatory DNA sampling of everyone, period? Instead of that cute footprint they make when you're born, they can take a drop of blood instead.

No one wants brutal crimes to go unsolved. But that's not the same as saying "crimes must be solved at all costs," especially when the cost is the civil liberties of the innocent.

---

Related:

A Baton Rouge hospital, hoping to get to the bottom of an office prank, is ordering 25 employees to undergo DNA testing or be terminated.

Leaders at Woman's Hospital say a man who works in Building Operations returned from several weeks off to find that someone had placed urine in his toolbox.

After hearing of the incident, hospital administrators sent a memo to 25 employees who also work there telling them that DNA testing would be done unless someone came forward admitting guilt. Since no one came forward, the hospital said the DNA testing will begin within the next few weeks.

Now the profile is "you work here." And keep in mind there was no real crime — no murder, no rape, no theft. Just a childish prank.

Remember the saying, "It is better to let ten guilty men go free than to condemn one innocent man..."? Apparently it's now better to let 24 innocent men go home than to let one guilty man go to work.

Welcome to the New World Order.

"While it may be difficult to [define "privacy"] when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes — the prototypical and hence most commonly litigated area of protected privacy — there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable.
--Kyllo v. U.S. (emphasis in original)

One of the few brief shining moments in Supreme Court search-and-seizure jurisprudence (which, as a whole, is on my list of Worst Supreme Court Cases) was Kyllo v. U.S., 533 U.S. 27 (2001), in which the Court ruled (barely — the decision was 5-4) that "police entering a home with a heat sensor" was, well, "police entering a home," and that a warrant based on probable cause was therefore still required.

Somebody please tell the Eighth Circuit:

But in a radical decision, a panel of the Eighth Circuit holds that police should be able to obtain a warrant based on the same level of suspicion necessary to justify a Terry stop, i.e. reasonable suspicion that criminal activity is afoot. The panel reasons that, like an investigatory stop, checking the heat emissions of private property is a brief investigatory step that does not merit the full Fourth Amendment protection of probable cause.

This hypothesis not only flatly disregards the plain text of Kyllo, but also spits in the face of the Fourth Amendment itself: "no Warrants shall issue, but upon probable cause." End of discussion. There is simply no wiggle room. To suggest that a warrant could ever, under any circumstances, issue upon anything other than probable cause, is flunk-the-final wrong. What were these judges thinking?

Keep in mind that Terry v. Ohio, 392 U.S. 1 (1968), an abominable decision in its own right, concerned when a warrant might not be needed at all (i.e., for a brief frisk for weapons in order to ensure the police officer's safety). What, exactly, does "ensuring officer safety" have to do with peering into private property with a heat sensor?

Terry represented the emergence of an ever-metastasizing tumor of concocted exceptions to the Fourth Amendment's warrant requirement. But even Terry, and the mutant progeny it spawned, never stood for the proposition that a warrant could ever be issued based on "reasonable suspicion" and not the far higher "probable cause" standard. The police can argue that what they are doing is not a "search" (or not a "seizure") and therefore does not require a warrant at all. But they cannot argue that there is such a thing as a "warrant lite."

(Incidentally, "search" and "seizure" are not the same thing. Terry was a seizure case. So why is this court applying it to a search?)

Hopefully an en banc Eighth Circuit will quash this atrocious ruling. It would be unfortunate if the Supreme Court were forced to waste its time on this nonsense.

The case is U.S. v. Kattaria, No. 06-3903 (8th Cir., Oct. 5, 2007) (PDF - 9 pages) (Also via FourthAmendment.com)

The Fourth Amendment has become a lost highway:

After verifying the tire was not in fact defective, the officer detained the driver, because among other things, the driver had a religious statue on his dashboard. The officer stated that in his experience and opinion, religious symbols are used to dispel suspicion of wrongdoing and are usually indicative of drug activity.

So now having a plastic dashboard Jesus qualifies as "fits the profile"?

Fortunately, the defendant had not Jesus but an "activist" judge metaphorically riding alongside him:

The Court finds that religious symbols cannot be used to generate reasonable suspicion of drug dealing or criminality. To do so, violates religious rights secured by the First Amendment and consequently, the Fourth Amendment. After removing the impermissible element of the religious symbol from the officer's reasonable suspicion calculation, the Court finds the remaining factors do not rise to the level of warranting extending the detention.

Need another gratuitous religious reference? Try "fruit of the poisonous tree" --

Because reasonable suspicion did not exist to extend the stop, once the officer realized a violation had not been committed, the purpose of the stop was fulfilled, and anything thereafter controverted Defendant's Fourth Amendment rights. Therefore, the Court grants Defendant's Motion to Suppress.

I'm reminded of this infamous list of self-contradicting "drug courier" descriptors used to justify airport detentions:

--Arrive late at night?

--Arrive early in the morning?

--One of first to deplane?

--One of last to deplane?

--Deplane in the middle?

--Use a one-way ticket?

--Use a round-trip ticket?

--Carry brand-new luggage?

--Carry a small gym bag?

--Travel alone?

--Travel with a companion?

--Act too nervous?

--Act too calm?

--Wear expensive clothing and gold jewelry?

--Wear black corduroys, white pullover shirt, loafers without socks?

--Wear dark slacks, work shirt, and hat?

--Wear brown leather aviator jacket, gold chain, hair down to shoulders?

--Wear loose-fitting sweatshirt and denim jacket?

--Walk rapidly through airport?

--Walk aimlessly through airport?

--Fly in to Washington National Airport on the LaGuardia Shuttle?

--Have a white handkerchief in your hand?

Eventually some intrepid law school student will compile a similar list of suspicious indicia used for automobile stops, complete with "had a plastic dashboard Jesus" and "had no plastic dashboard Jesus."

The case is United States v. Magana, 2008 U.S. Dist. LEXIS 24859 (W.D. Tex. March 13, 2008).