CrimProf Blog

Liptak Previews Strip Search Case

Savana Redding still remembers the clothes she had on — black stretch pants with butterfly patches and a pink T-shirt — the day school officials here forced her to strip six years ago. She was 13 and in eighth grade.

An assistant principal, enforcing the school’s antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.

The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, “they asked me to pull out my bra and move it from side to side,” she said. “They made me open my legs and pull out my underwear.”

Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21.

The case will require the justices to consider the thorny question of just how much leeway school officials should have in policing zero-tolerance policies for drugs and violence, and the court is likely to provide important guidance to schools around the nation.

In Ms. Redding’s case, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that school officials had violated the Fourth Amendment’s ban on unreasonable searches. Writing for the majority, Judge Kim McLane Wardlaw said, “It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights.”

“More than that,” Judge Wardlaw added, “it is a violation of any known principle of human dignity.”

Judge Michael Daly Hawkins, dissenting, said the case was in some ways “a close call,” given the “humiliation and degradation” involved. But, Judge Hawkins concluded, “I do not think it was unreasonable for school officials, acting in good faith, to conduct the search in an effort to obviate a potential threat to the health and safety of their students.”

Richard Arum, who teaches sociology and education at New York University, said he would have handled the incident differently. But Professor Arum said the Supreme Court should proceed cautiously.

“Do we really want to encourage cases,” Professor Arum asked, “where students and parents are seeking monetary damages against educators in such school-specific matters where reasonable people can disagree about what is appropriate under the circumstances?”

The Supreme Court’s last major decision on school searches based on individual suspicion — as opposed to systematic drug testing programs — was in 1985, when it allowed school officials to search a student’s purse without a warrant or probable cause as long their suspicions were reasonable. It did not address intimate searches.

In a friend-of-the-court brief in Ms. Redding’s case, the federal government said the search of her was unreasonable because officials had no reason to believe she was “carrying the pills inside her undergarments, attached to her nude body, or anywhere else that a strip search would reveal.”

Read full article here. [Brooks Holland]

Liptak Considers the Future of the Exclusionary Rule

In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

Read full article here. [Brooks Holland]

SCOTUS Holds Pat Down of Car Passenger After Stop Justified if Based on Reasonable Suspicion

In Arizona v. Johnson, the U.S. Supreme Court unanimously held today that, after a car is lawfully stopped for a traffic violation, the police may search a passenger as long as they have reasonable suspicion to believe the suspect is armed and currently dangerous.  The Court held that the reasonable suspicion necessary to institute a stop and frisk is satisfied by the suspicion justifying the initial stop, even though that suspicion is directed at the driver, not his or her passengers.  Once the stop is made, therefore, the police need only reasonable suspicion to believe the passenger is armed and dangerous in order to proceed to a frisk. [Mike Mannheimer]

Intelligence Court Affirms Wiretapping Powers

A federal intelligence court, in a rare public opinion, issued a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans’ private communications may be involved.

The court decision, made in August 2008 by the Foreign Intelligence Surveillance Court of Review, came in an unclassified, redacted form.

The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans.

The Aug. 22 appeals court decision upheld a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications.

“The Department of Justice is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007,” a Justice Department statement said.

The court ruling grew out of a previously undisclosed challenge from a telecommunications provider, which questioned the constitutional authority of the executive branch in ordering it to capture and turn over international communications without court approval.

The telecommunications company, which was not identified, refused to comply and instead challenged its legal basis under the 2007 law.

The FISA court rejected the telecommunication companies’ challenge. It found that the Protect America Act did not violate the Constitution because the Fourth Amendment, which prohibits unreasonable searches and seizures, contained an exception for the collection of foreign intelligence information.

The opinion did not directly rule on the legality of the once-secret operation authorized by President Bush between October 2001 and early 2007, which allowed the National Security Agency to eavesdrop on the international communications of Americans suspected of ties to terrorists. The disclosure of the program’s existence in The New York Times in December 2005 set off a national debate on wiretapping, privacy and the limits of presidential power. Critics charged that Mr. Bush had violated a 1978 law requiring that the government obtain a court order to listen in on Americans’ communications.

Read full article here. [Brooks Holland]

More on the Herring Case

As Brooks posted below, the U.S. Supreme Court decided Herring v. U.S. today, continuing on its path of narrowing the Fourth Amendment's exclusionary rule.  A couple of points jumped out at me as I read the opinion.

First, the scope of the opinion is unclear.  The general tenor of the opinion is that mere negligence on the part of the police will rarely if ever result in the exclusion of evidence discovered as a result.  However, the Court hedges, both at the beginning and end of its opinion, potentially narrowing the scope of the ruling to cover only those cases where the negligence occurred at some unspecified temporal distance from the ultimate Fourth Amendment violation.  Thus, the Court wrote that the error here "was the result of isolated negligence attenuated from the arrest," slip op. at 1 (emphasis added), and concluded that the exclusionary rule does not apply "when police mistakes are the result of negligence such as that described here."  Slip op. at 12 (emphasis added).  Thus, the case leaves open the question of the application of the exclusionary rule where the Fourth Amendment violation results from police negligence by the arresting officer him- or herself.

Second, although the U.S. conceded there was a Fourth Amendment violation here, the Court did not decide the issue and seems to imply that the answer is not so clear cut.  However, it is difficult for me to see how a negligent mistake by a law enforcement official resulting in an arrest can be anything other than a Fourth Amendment violation.  [Mike Mannheimer]

Supreme Court Narrows Exclusionary Rule

The Supreme Court on Wednesday upheld the conviction of an Alabama man on drug and weapons charges, emphasizing that the exclusionary rule, which generally bars prosecutors from using evidence obtained by the police through improper searches, is far from absolute.

In a 5-to-4 opinion, the court upheld the federal conviction of Bennie Dean Herring, who from the court records appears to have been very unlucky as well as felonious in his conduct. In upholding the conviction, the court’s majority came to a conclusion that will most likely please those who complain about criminals going free on “technicalities.”

Mr. Herring had gone to the Coffee County, Ala., sheriff’s department on July 7, 2004, to retrieve something from his truck, which had been impounded. “Herring was no stranger to law enforcement,” as Chief Justice John G. Roberts Jr. observed dryly in his opinion for the court.

And he was no stranger to Mark Anderson, an investigator for the sheriff’s department, who asked a Coffee County clerk if there were any outstanding warrants for Mr. Herring.

No, Mr. Anderson was told. So he asked the clerk to check with her counterpart in neighboring Dale County, who turned up a warrant against Mr. Herring for failing to appear in court on a felony charge.

Mr. Anderson and a deputy following Mr. Herring as he left the impound lot pulled him over and arrested him. A search turned up methamphetamine in his pocket and a pistol, which Mr. Herring could not legally possess because of an earlier felony conviction, in his truck.

Within minutes, however, the Dale County clerk discovered that the warrant against Mr. Herring had been withdrawn five months earlier and had been left in the computer system by mistake. The clerk immediately called Mr. Anderson, but Mr. Herring had already been taken into custody.

Was Mr. Herring entitled to go free because the officers lacked probable cause and there was no dispute that both the arrest and subsequent search were unconstitutional? No, the Supreme Court ruled.

Read full article here. [Brooks Holland]

2nd Circuit Upholds Warrantless Extraterritorial Searches of U.S. Citizens

A federal appeals court in Manhattan upheld the convictions on Monday of three Al Qaeda operatives in a ruling that bolsters the government’s power to investigate terrorism by holding that a key Constitutional protection afforded to Americans does not apply overseas.

The unanimous decision by a three-judge panel of the United States Court of Appeals for the Second Circuit holds for the first time that government agents may obtain admissible evidence against United States citizens through warrantless searches abroad.

The searches must still be reasonable, as the Constitution requires, Judge José A. Cabranes wrote, adding that the government had met that standard in its search of the home and monitoring of the telephone of one defendant, Wadih El-Hage, a close aide to Osama bin Laden, who was a naturalized American citizen living in Nairobi, Kenya.

“The Fourth Amendment’s requirement of reasonableness — but not the Warrant Clause — applies to extraterritorial searches and seizures of U.S. citizens,” the judge wrote.

Mr. El-Hage and two other defendants had appealed their convictions for participating in a terrorism conspiracy, led by Mr. bin Laden, to kill Americans around the world. The conspiracy included the 1998 bombings of two American embassies, in Nairobi, Kenya, and Dar es Salaam, Tanzania, which killed 224 people and wounded thousands. They were convicted in Manhattan federal court in 2001 in the last major terrorism trial in the United States before the Sept. 11 attacks.

The two other defendants whose convictions were upheld were Mohamed Rashed Daoud al-’Owhali and Mohammed Saddiq Odeh. A fourth defendant, Khalfan Khamis Mohamed, did not appeal his conviction. The men were convicted in a federal trial in Manhattan in early 2001. All four men are serving life sentences in the so-called Super Max prison in Florence, Colo.

Read full article here. [Brooks Holland]

NYPD Starts Collecting DNA from ... the Police

The NYPD has started taking DNA samples from CSI detectives to look for cross-contamination at crime scenes, sources said last night.

Police brass have been pushing for the samples for at least three years. The need was highlighted when a cop's blood turned up, unexplained, on a sink of the blood-soaked apartment of "Realtor to the Stars" Linda Stein.

A crime scene cop had washed his hands in the sink, leaving a near-invisible drop of blood. Accused killer Natavia Lowery's lawyers claimed the DNA belonged to "the real killer" - until the mystery was solved.

The first 11 crime scene detectives provided DNA samples yesterday under a deal negotiated with the detectives union. Lawyers for the Detectives' Endowment Association hammered out language to protect the samples from being accessed for other reasons without a subpoena, sources said.

Some rank-and-file detectives were not so sure.

"Big Brother is here," said one investigator. "To get a DNA sample from anyone else requires a search warrant. They decided the Constitution doesn't apply to cops."

Read full article here. [Brooks Holland]

Court Upholds On-Scene Traffic Discretion During DUI Roadblock

Giving police officers conducting a sobriety checkpoint the discretion to suspend temporarily and then resume their operation of the checkpoint to alleviate traffic caused by the checkpoint violates neither the Fourth Amendment nor its state constitutional counterpart, the Pennsylvania Supreme Court ruled Oct. 27 (Commonwealth v. Worthy, Pa., No. 1 WAP 2007, 10/27/08).

From now on, however, administrative requirements for the operation of checkpoints should limit officers' discretion to suspend and resume checkpoints to relieve traffic congestion, the court said.

Guidelines for Checkpoints.

In Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990), the U.S. Supreme Court upheld a sobriety checkpoint that was conducted according to written guidelines. One of the factors relied upon by the Sitz court was its determination that the stop was only minimally intrusive because it was conducted following written guidelines that limited the discretion of officers to single out individual motorists.
Although the Pennsylvania Constitution affords greater individual privacy protection than the Fourth Amendment in some contexts, it does not when it comes to the constitutionality of sobriety checkpoints. To ensure the sobriety checkpoints in the state are operated in a constitutional fashion, the court has in Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992), established a set of state guidelines that include a requirement that “the decision as to which vehicles to stop at the checkpoint must be established by administratively pre-fixed, objective standards, and must not be left to the unfettered discretion of the officers at the scene.”

The sobriety checkpoint that nailed the defendant in this case was conducted according to written guidelines that required officers to stop every car while the checkpoint was operating, but the offices had discretion to suspend their operation of the checkpoint when traffic got heavy. Three times, the lead officer suspended the operation in order to relieve traffic backups caused by the checkpoint.

Substantial Compliance With Guidelines.

The lower state courts decided that the on-the-scene decision to suspend and then resume the operation amounted to the arbitrary and unfettered discretion of the enforcing officers that the guidelines were designed to prevent. The state high court reversed in an opinion by Justice Seamus P. McCaffery.
The court pointed out that it said in Blouse that “[s]ubstantial compliance with the guidelines is all that is required to reduce the intrusiveness of the search to a constitutionally acceptable level.” That meant “substantial—and not complete—compliance,” the court said here.

The court explained a critical consideration in this case was the absence of any allegation or evidence that the lead officer's exercise of discretion to suspend and resume the checkpoint was linked in any way to stopping any one car or driver. The only evidence was that the officer based these decisions on his experience and training regarding traffic conditions, the court stressed.

Read full article here. [Brooks Holland]

Ninth Circuit Upholds Border Searches of International Mail

The Fourth Amendment's border search doctrine permits customs agents acting without a warrant or particularized suspicion to read letters mailed to overseas addresses, the en banc U.S. Court of Appeals for the Ninth Circuit held Oct. 23 (United States v. Seljan, 9th Cir. (en banc), No. 05-50236, 10/23/08).

Under 19 U.S.C. §1583, customs inspectors are generally required to have reasonable suspicion before opening and reading outbound mail. However, individuals sending more than $10,000 in currency or “negotiable instruments” abroad must file forms declaring that they are doing so, and 19 U.S.C. §5317(b) authorizes inspectors to conduct suspicionless searches for illegally exported currency in “any envelope or other container.”

The opinion by Judge Richard R. Clifton explained that such inspections may reasonably include scanning the contents of letters in express mail packages to make sure the letters are not promissory notes or other negotiable instruments. Any evidence of other crimes revealed during these scans is admissible at trial under the plain-view doctrine, the opinion said.

A customs inspector, exercising his authority under Section 5317(b), opened a FedEx package that the defendant had mailed to the Philippines. Among the items in the package were envelopes containing a $100 bill and a letter. Agency protocol permitted the inspector to open and “scan” the contents of the letter as part of a currency-interdiction inspection. The inspector later testified that when he glanced over some of the comments in the letter he immediately suspected that it contained evidence of pedophilia. A thorough reading of the letter confirmed that the defendant had written a sexually suggestive letter to an 8-year-old girl.

Further investigation resulted in searches of additional packages that the defendant mailed to the Philippines. The evidence uncovered in the investigation was used to convict the defendant of traveling to engage in illicit sexual conduct, producing child pornography, and other offenses.
Reading Mail Not Particularly Offensive.

The Ninth Circuit decided that reading a letter in an express mail package is not a “particularly offensive” way of inspecting for undeclared currency. The defendant had contended that the inspection was unreasonably intrusive in its scope because it entailed reading his personal correspondence. The court, however, stressed that most of the prior cases in which it or the U.S. Supreme Court has expressed concern about the offensiveness of border searches have involved searches of individuals' persons or destruction of their property.

“An envelope containing personal correspondence is not uniquely protected from search at the border,” the court said, citing United States v. Ramsey, 431 U.S. 606 (1977), which held that border searches of international mail do not require probable cause and a warrant. The court also emphasized that the defendant's reasonable expectation of privacy in the letter was “necessarily tempered” when he “voluntarily gave the package containing the letter to FedEx for delivery to someone in the Philippines, with knowledge that it would have to cross the border and clear customs.”

“Even assuming that there are limits to the government's right to search packages at the border, those limits were not transgressed in this case,” it said.

Read full article here. [Brooks Holland]

When the Police Go Through Your Email: Quirk of Search Law Sets Off Alarm Bells

When you look at your BlackBerry, you see a gadget full of important email, contacts and other files. Increasingly, authorities see admissible evidence.

In a small but growing number of cases, customs officials and police officers have been carrying out warrantless searches of the contents of laptops, mobile phones and other wireless devices. This spring, the 9th Circuit U.S. Court of Appeals in California ruled that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," including international airports.

And in a handful of instances, courts have supported local police interpretations of legal searches to include browsing through phone call lists and text messages on cellphones when they arrest suspects.

Adam Gershowitz, a professor at the South Texas College of Law, argues law enforcement officials are flirting with a dangerous invasion of privacy under the "search incident to arrest" doctrine, which allows officers to search "containers" on the person of or within the reach of suspects without probable cause.

The doctrine is designed to protect police from a suspect who could reach for a hidden weapon and to prevent suspects from concealing or destroying evidence. Mr. Gershowitz argues that iPhones and other "smart" devices are, in the eyes of the law, now nothing but containers subject to warrantless search.

He and other privacy-rights defenders are calling for a law to make electronic technology different from ordinary containers that can be seized and scrutinized in warrantless searches. They note that warrants are by design a form of checks and balances, protecting suspects from unreasonable searches by requiring the approval of a magistrate, a detached third party. [Mark Godsey]

Continue Reading "When the Police Go Through Your Email: Quirk of Search Law Sets Off Alarm Bells"

Third Circuit Requires Reasonable Suspicion for Border Searches of Sleeping Compartments

The Fourth Amendment generally prohibits federal agents from conducting border searches of sleeping compartments on vessels unless the agents have reasonable suspicion, the U.S. Court of Appeals for the Third Circuit announced Sept. 4 (United States v. Whitted, 3d Cir., No. 06-3271, 9/4/08).

The court framed the critical issue in the case as "whether the search of a cabin of a cruise ship sufficiently intrudes upon an individual's privacy to render it non-routine, so that reasonable suspicion of criminal activity is required." It also reported "a surprising dearth of authority on the matter."

The defendant in this case was a passenger on a large cruise ship sailing from the foreign port of St. Maarten. Officers of U.S. Customs and Border Protection had received a tip that the defendant bought his ticket at the last minute, had visited "drug source countries," and had a criminal record. When the cruise ship docked in St. Thomas, the officers entered his locked stateroom with a narcotics-detection dog and found heroin used to convict the defendant in federal court.

Border Search Doctrine

The U.S. Supreme Court has repeatedly held that warrantless, suspicionless searches of travelers' belongings at the border are "reasonable" for Fourth Amendment purposes. The most recent Supreme Court decision addressing the issue, United States v. Flores-Montano, 541 U.S. 149, 72 U.S.L.W. 4263 (2004), reiterated that "[i]t is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity."
The court in Flores-Montano criticized a distinction that the lower courts have drawn between "routine" and "non-routine" border searches. The court said the distinction makes too much out of language in United States v. Montoya de Hernandez, 473 U.S. 531 (1985), that was intended to be descriptive only.

The justices focused instead on the intrusiveness of the search, which in that case was the suspicionless disassembly and inspection of an automobile's fuel tank. The court had previously held that the Fourth Amendment requires reasonable suspicion for border searches that intrude on travelers' bodily integrity, and the Flores-Montano court made clear that "the reasons that might support a requirement of some level of suspicion in the case of highly intrusive searches of the person--dignity and privacy interests of the person being searched--simply do not carry over to vehicles." The court, however, left open the possibility that "a border search might be deemed 'unreasonable' because of the particularly offensive manner it is carried out."

Home Away From Home

In an opinion by Judge Marjorie O. Rendell, the Third Circuit said it had "little trouble concluding that a passenger cabin is more like an individual's home than an automobile." Citing Montoya de Hernandez and quoting from circuit precedent decided before Flores-Montano, the court explained that "[b]order searches ... fall into two categories: 'routine searches that require no suspicion and non-routine searches that require reasonable suspicion.' "

To determine whether the border search of a room on a cruise ship can be classified as "routine," the court examined the degree to which the search intrudes on a traveler's privacy. It found "compelling" the defendant's argument that "an individual's expectation of privacy in a cabin of a ship is no different from any other temporary place of abode." The heightened privacy protections that the Fourth Amendment affords to homes have previously been extended by the Supreme Court to overnight guests at the homes of friends and in hotels. With this in mind, the Third Circuit said:

Just as individuals seek privacy in hotel rooms or another's home to sleep, cruise ship passengers seek out privacy in their sleeping cabins and expect that they will not be opened or intruded upon without consent. Mindful of the "centuries-old principle of respect for the privacy of the home," we, therefore, consider a search of an individual's living quarters among the most intrusive of searches--invading as it does a place where the individual expects not to be disturbed.

The court also noted that other circuits have reached the same conclusion when addressing other types of searches of sleeping areas on ships.

Read full article here. [Brooks Holland]

Thoughts on Virginia v. Moore

The U.S. Supreme Court decided Virginia v. Moore today.  The Court rejected Moore's claim that his arrest, and the search incident thereto, violated the Fourth Amendment by virtue of the fact that the arrest was made in violation of state law.  Virginia law provides that the misdemeanor for which Moore was arrested is generally a non-arrestable offense.  When the officers mistakenly arrested him, they found crack cocaine and a large sum of money in a search incident to the arrest, leading to a possession with intent to distribute charge.

The virtually unanimous result -- Justice Ginsburg concurred only in the judgment -- was expected but, I think, unfortunate.  The opinion, written by Justice Scalia, gives short shrift to the notion that "unreasonable" searches and seizures under the Fourth Amendment may encompass those that are not allowed by state law.  After all, the Fourth Amendment, and the rest of the Bill of Rights, originated as a result of the anti-federalist's fears of a powerful federal government.  They insisted on the inclusion of the Bill as a condition of ratification of the Constitution in several key States.  The Bill of Rights thus aligns state power and individual liberties against the awsome power of the new and fear-inducing central government.

Given this, is it so unnatural to think that the Fourth Amendment's use of the term "unreasonable searches and seizures" is shorthand for "searches and seizures prohibited by the laws of each respective State?"  In this way, federal power would be constrained because federal officers could search and seize only to the extent that state officers could do the same.  State norms would dictate federal norms.

The Court's initial observation that "if anything . . . founding-era citizens were skeptical of using the rules for search and seizures set by government actors as the index of reasonableness," slip op. at 4, misses the mark because it elides the distinction between federal actors and state actors, combining them into one category -- surely, one foreign to the framers and ratifiers -- of "government actors."  Founding-era citizens were indeed skeptical of federal actors; but they were far more sanguine about state actors, who were likely to be their friends and neighbors and in whose selection they might have some say.

Of course, that might explain Fourth Amendment constraints on federal actors.  Moore, of course, complained of an unlawful seizure by state actors so his claim is technically one grounded in the Fourteenth, not the Fourth, Amendment.  But it also seems sensible to me that the Fourteenth Amendment's requirement of "due process of law," like its predecessor in Magna Carta, which referred to "the law of the land," might simply require no more and no less than that States actually follow their own law.  After all, the primary concern of the framers and ratifiers of that Amendment was the disparate treatment of freed African-American slaves and relocated Northern Unionists.  What better way to assure their protection, to paraphrase Justice Jackson's famous concurrence in the Railway Express case, than to require, not particular substantive standards of search and seizure law, but simply that everyone be subjected to the same standards, whatever they may be?  If this view were to take root, our Fourth Amendment law would look very different.  Indeed, it would be turned on its head -- there would be no uniform Fourth Amendment doctrine and the only question, in both federal and state court, would be whether state law was followed.  Notice the elegant symmetry:  both state and federal officers would be constitutionally required to follow the same (state) rules.

As the Court notes, "linking Fourth Amendment protections to state law would cause them to `vary from place to place and from time to time.'"  Slip op. at 11 (quoting Whren v. United States, 517 U.S. 806, 815 (1996).  But so what?  First of all, this is already true to some extent.  For example, running from the police in Washington Heights, NY (a "high-crime area"), without more, probably generates reasonable suspicion while doing the same thing in Scarsdale, NY (a "low-crime area"), without more, probably does not.  Moreover, other constitutional provisions incorporate local standards, most notably the First Amendment definition of obscenity and the Sixth Amendment requirement of effective assistance of counsel.  But most powerfully, the notion that the Fourth Amendment can vary, at least from time to time, was put forth by none other than the author of Moore, Justice Scalia, in his dissenting opinion in Georgia v. Randolph (2006):

"There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change. The Fifth Amendment provides, for instance, that “private property” shall not “be taken for public use, without just compensation”; but it does not purport to define property rights. We have consistently held that “the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.’ ” Phillips v. Washington Legal Foundation, 524 U.S. 156, 164, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). The same is true of the Fourteenth Amendment Due Process Clause's protection of “property.” See Castle Rock v. Gonzales, 545 U.S. 748, ----, 125 S.Ct. 2796, ----, 162 L.Ed.2d 658 (2005). This reference to changeable law presents no problem for the originalist."

[Mike Mannheimer]

Ninth Circuit Upholds Border Laptop Searches without Individualized Suspicion

From Law.com: The 9th U.S. Circuit Court of Appeals ruled Monday that border control agents who found child porn on a traveler's laptop didn't violate the man's right to be free from unreasonable searches.

"We are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," Judge Diarmuid O'Scannlain wrote. O'Scannlain went on to say that the defendant "has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers' luggage that the Supreme Court and we have allowed."

He was joined by Judge Milan Smith Jr. and U.S. District Judge Michael Mosman, sitting by designation from Oregon.

The ruling appears to be the second upholding computer searches by border guards. The first, U.S. v. Ickes, 393 F.3d 501, was handed down by the Virginia-based 4th U.S. Circuit Court of Appeals in 2005. It involved a man who tried to drive into the United States from Canada with child porn on his computer.

In Monday's case, Michael Arnold, who was 43 at the time, was pulled aside for secondary questioning upon arriving at Los Angeles International Airport from the Philippines on July 17, 2005. Customs agents examined the contents of his laptop computer, Monday's ruling noted, and found "numerous images depicting what they believed to be child pornography."

A federal grand jury later charged Arnold with possessing and transporting child porn and with traveling to a foreign country with the intention of having sex with children.

However, U.S. District Judge Dean Pregerson of Los Angeles suppressed the evidence after finding that customs agents violated Arnold's Fourth Amendment right against unreasonable searches. He held that they didn't have reasonable suspicion to search the contents of Arnold's laptop.

In reversing, the 9th Circuit ruled that Pregerson erred in holding that a "particularized suspicion" was necessary before a laptop computer could be searched. The court also rejected Arnold's claim that the border agents had exceeded their authority by conducting a search in a "particularly offensive manner." Read Full Article. [Brooks Holland]

Interesting Eighth Circuit Decision Applying Georgia v. Randolph

On Tuesday, the en banc Eighth Circuit released this interesting decision applying the recent Supreme Court case Georgia v. Randolph on third-party consent.  In Randolph, the Supreme Court held that when one co-tenant is present and refuses to consent to a search, that refusal is controlling, even in the face of consent by another co-tenant.  In U.S. v. Hudspeth, the en banc Eighth Circuit addressed the issue whether the same is true when the objecting co-tenant is absent from the premises.  The majority answered that question in the negative. [Mike Mannheimer].

More on Arizona v. Gant and the Other Footnote Four

Last week, the Supreme Court granted cert. in Arizona v. Gant.  The case will require the Court to consider whether the police need any level of suspicion to think the passenger compartment of a car contains a dangerous weapon or concealible or destructible evidence before searching the passenger compartment of the car after having arrested and secured its recent occupant.  That is, the case gives the Court the opportunity to reaffirm, extend, reconfigure, or disavow the Belton rule.  Belton seems to allow such a search even after the arrestee has been subdued, and the majority of lower courts have interpreted it in that way.  This application is in some tension with the underlying rationale of the rule, that a recent occupant can gain access to the passenger compartment to conceal or destroy evidence of the crime of arrest, or obtain a weapon to harm the officer.  On the other hand, it makes some sense given that the Belton Court sought to draw a bright line, allowing the police "safe harbor" (to use Susan Klein's term) within which to exercise authority in ambiguous situations free of claims of constitutional wrongdoing.

Prospects for the continuing validity of Belton appear shaky.  The last time the Court addressed a Belton issue was in the 2004 case of Thornton v. U.S.  There, the Court extended the Belton rule to cover an arrestee who first makes contact with the police after he has exited the vehicle.  However, in a critical opinion concurring only in the judgment, Justice Scalia, joined by Justice Ginsburg, wrote that when an arrestee is safely in custody, a Belton search is justified only where it is reasonable to believe that evidence of the crime of arrest will be found.  Footnote four of the main opinion declined to take a position on the merits of Justice Scalia's novel argument because it had not been raised by the petitioner at any stage of the proceedings, providing insufficient reason to reconsider Belton "at this time."  In a strong symbolic gesture, Justice O'Connor refused even to join footnote four, rendering that footnote a plurality opinion, written by the Chief Justice and joined by Justices Kennedy, Thomas, and Breyer.  Justice O'Connor opined that Belton is built on a "shaky foundation" and that "the approach Justice Scalia proposes appears to be built on firmer ground."  Justice Stevens, in an opinion also joined by Justice Souter, dissented because he did not think Belton should apply when, as in Thornton, the police first make contact with the arrestee when he is outside the vehicle.

Gant may the case the Court uses to dispose of Belton once and for all and replace it with something along the lines of what Justice Scalia has proposed.  Given Justice Stevens' and Souter's apparent distaste for Belton, and absent the Thornton question of whether Belton applies to a "recent occupant," one or both may want to embrace this reformulated approach.  While the new Chief's and Justice Alito's positions are unknown, there is no reason to think they are wedded to the deeply flawed Belton, except for their respect for stare decisis.  This might resonate to a greater extent with the Chief than with Justice Alito, but notice how Justice Scalia's position allows the Justices to claim that they are simply re-tooling Belton, not getting rid of it entirely.  Assuming he is in the majority, the Chief might be able to craft a carefully-worded opinion, or give the job to someone else, without using the dreaded word "overruled."  And even one or more of the three remaining members of the Thornton plurality might be persuaded to join, given footnote four's half-hearted embrace of Belton, coupled with the O'Connor nostalgia that seems to be an undercurrent in some recent opinions (Danforth v. Minnesota, for one).

More generally, I would suggest that the Belton experience highlights the defects of so-called "bright-line" rules.  In many instances when the Court creates a cright-line rule, it simply generates litigation on when that rule applies.  That is, a bright-line rule doesn't necessarily obviate the need for case-by-case adjudication; it often just moves it to another step in the process.  Think of Justice White's prescient prediction in his Miranda dissent that the Court would soon become mired in defining "custody," "interrogation," "waiver," etc.  Each of these questions can be answered only by applying a very fact-intensive test on a case-by-case basis.  On the other hand, a bright-line rule like that suggested by Justice White in his Payton dissent -- no warrant is ever needed to arrest -- does not present these problems but may lack fidelity to the Constitution.  That is not to say that Payton was correctly decided, but only to suggest that desire for a bright-line rule can never be the sole basis for a decision. [Mike Mannheimer]

Number of No-Knock Searches Skyrockets

St. Paul Pioneer Press:  A Minneapolis man escaped serious injury after he grabbed his hunting shotgun Sunday and reportedly fired through his bedroom door at a swarm of heavily armed strangers who burst through the back door of his home while he, his wife and his six kids - ages 3 to 15 - were sleeping, says the St. Paul Pioneer Press. Two cops - part of a SWAT-style team that raided the wrong home - returned fire but were struck by shotgun blasts. Police tried to couch the mistake as a rare or isolated incident, one in which officers were fed "bum" information from a confidential informant.

"Police justify these 'no-knock' tactics as to make it safer for everyone,'' says Radley Balko, author of "Overkill: The Rise of Paramilitary Police Raids in America." "I think that's absurd,'' said Balko. "Whenever you enter someone's home, you are creating confrontation as well as the potential for violence.'' He believes such paramilitary tactics should be reserved for cases where hostages need to be rescued or violent fugitives apprehended. A study by Eastern Kentucky University criminologist Peter Kraska estimates "no-knock'' warrants soared from 3,000 in 1981 to more than 50,000 last year, the overwhelming majority triggered by anti-drug- trafficking crackdowns. Balko, a senior editor with Reason magazine, says that at least 40 people have died after such botched raids "since SWAT teams began proliferating in the late 1980s."

Vermont Law Firm with Foreign Clients Says Feds Wiretapping Them

Story at Talkleft.com

Police Officers Plead Guilty to Manslaughter of a 92 Year-old Woman

From ap: Two police officers pleaded guilty Thursday to manslaughter in the shooting death of a 92-year-old woman during a botched drug raid last fall. A third officer still faces charges.

Officer J.R. Smith told a state judge Thursday that he regretted what had happened.

"I'm sorry," the 35-year-old said, his voice barely audible. He pleaded guilty to manslaughter, violation of oath, criminal solicitation, making false statements and perjury, which was based on claims in a warrant.

Former Officer Gregg Junnier, 40, who retired from the Atlanta police in January, pleaded guilty to manslaughter, violation of oath, criminal solicitation and making false statements. Both men are expected to face more than 10 years in prison.

In a hearing later in federal court, both pleaded guilty to a single charge of conspiracy to violate a person's civil rights, resulting in death. Their state and federal sentences would run concurrently.

The charges followed a Nov. 21 "no-knock" drug raid on the home of Kathryn Johnston, 92. An informant had described buying drugs from a dealer there, police said. When the officers burst in without warning, Johnston fired at them, and they fired back, killing her. Rest of Article. . . [Mark Godsey]

Ninth Circuit Says Exclusionary Rule Does Not Apply to Officers Who Fail to Show Search Warrant to Resident

From Criminal Law Reporter: The reasoning behind the U.S. Supreme Court's controversial decision in 2006 not to apply the exclusionary rule to violations of the Fourth Amendment's knock-and-announce rule carries over, the Ninth Circuit says, to other circumstances where a valid search warrant was executed in an unconstitutional manner.

The case involves a Fourth Amendment rule, recognized in circuit caselaw, that requires officers executing a search warrant to serve a copy of it at the premises. Bypassing a ruling on the continuing vitality of this rule, the Ninth Circuit instead relies on Hudson v. Michigan for the idea that the causal connection between a violation of the rule and a seizure of evidence pursuant to the warrant is too attenuated to justify suppression

Read More. . . [Mark Godsey]