CrimProf Blog

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]

Anti-Cruising Laws Aim to Drive away Wandering Cars

Cruisin' town is about to get a little tougher in Binghamton, NY if City Councilman Pat Russo's anti-cruising legislation passes.  Three years ago, Russo counted 22 times as the same vehicle passed his Pine Street porch. Prompted by wandering vehicles that he said frequent his downtown neighborhood, Russo has asked the city attorney to draft "anti-cruising" legislation that would prohibit cars from cruising in designated areas at certain times. Under Russo's envisioned law, vehicles that pass by a specific sign more than three times in a three-hour period could be stopped, questioned and fined.  "This gives a police officer an opportunity to stop people looking for drugs, looking for prostitutes," Russo said. "I guarantee you'll get 10 guys in one night."

Similar laws have passed legal challenges in other municipalities. In York, Pennsylvania a community of about 40,000 people in southern Pennsylvania, a no-cruising law withstood a legal challenge in the late 1980s, when the Third Circuit Court of Appeals ruled in favor of the city.  Longmont, Colorado, a city of about 80,000 people north of Denver, passed an anti-cruising law in the summer of 2006 after persistent problems with gang-related cruising.  The Longmont law provides exceptions for emergency, government and livery vehicles, as well as drivers who have "legitimate business activities" or are headed to and from a religious service. Milwaukee, Wisconsin has one too; you can read about it in the "Frequently Forgotten Ordinances" link of the city's webpage.

Binghamton Police Chief Steven Tronovitch mentioned that police officers in his department have the authority to stop vehicles for questioning and ask them what they're doing in the area without an anti-cruising law. "Sometimes that could escalate into something that is probable cause," he said.  But he welcomes any legislation that makes his officers' jobs easier. Full Story from PressConnects.com. . . 

That last part sounds a little questionable if you ask me; what does he do when he pulls over a car just to question its passengers and they blow him off because they think they're free to leave?  Does he arrest them for "fleeing"?  [Michele Berry]

Secret "FISA" Court to Monitor Domestic Spying Program

Yesterday, the Justice Department announced that a secret independent panel of judges, known as the FISA Court (Foreign Intelligence Surveillance Court) has been given authority to monitor the government's contentious domestic spying program.  FISA has already has approved one request for monitoring the communications of a person believed to be linked to al-Qaida or an associated terror group. 

The FISA court was established in the late 1970s to review requests for warrants to conduct surveillance inside the United States. The Bush administration initially resisted giving the court final approval over the Terrorist Surveillance Program (the program allowing the phone calls or emails of Americans suspected of ties to terrorism to be monitored without any oversight from a judge), even when communications involved someone inside the country. A federal judge in Detroit last August declared the program unconstitutional, saying it violates the rights to free speech and privacy and the separation of powers. In October, a three-judge panel of the 6th Circuit Court of Appeals in Cincinnati ruled that the administration could keep the program in place while it appeals the Detroit decision. Story from CBS/AP. . . [Michele Berry]

Has the Baseball Doping Probe Hit a Fourth Amendment Foul?

The 18th-century amendment is being put to a 21st-century test centering around the Major League Baseball doping probe.  Major League Baseball has found itself embroiled in a federal investigation into whether some of its biggest stars, like Barry Bonds, used performance-enhancing drugs. But civil-liberties advocates worry that a recent legal ruling in the case will reach far beyond the diamond and give the government broad search-and-seizure powers in the digital age. At the heart of the case is how much freedom the government has to pursue crimes discovered in electronic files while searching for evidence against other people and how much protection the 4th Amendment affords information in a computer database about people other than those targeted by investigators. 

In late December '06, a three-judge panel of the Ninth Circuit Court of Appeals in San Francisco upheld the government's power to seize computer files from two laboratories that performed mandatory drug tests on major leaguers, including files of professional hockey players and other nonsports patients tested by the labs. George Washington CrimProf Orin Kerr commented, "The Supreme Court has never applied the Fourth Amendment to computers. The federal courts of appeals are beginning to decide a bunch of cases: in 2006, there were 20 or 30 in the broad area of how the Fourth Amendment applies to computers. But each case is very fact-specific and narrow, so the law remains pretty murky." Story from the Wall Street Journal in post-gazette.com. . . [Michele Berry]

Court Holds that Agents Has Broad Authority to Seize Files Associated With Warrant

From BNA Inc. Criminal Law Reporter: The Ninth Circuit says federal agents did not violate the Fourth Amendment when they copied a voluminous computer directory holding drug-testing records of hundreds of professional athletes as they executed a search warrant that authorized the seizure of such records relating to only a handful of Major League Baseball players. The ruling has broader implications for the confidentiality of all sorts of personal records maintained in a database when law enforcement officials obtain a search warrant for only some of them.

Read More. . . [Mark Godsey]

Franklin Pierce Students Win Suppression Hearing

Students in the clinic get a 4th Amendment victory.

Deck the Cars with Digital Cameras...

Fa la la la la, la la la la.  Beginning next week, the Los Angeles Police Department will begin installing digital video cameras in some patrol cars to better track how arrests are made.  Arrest tactics have been an issue under scrutiny since the recent surfacing of two amateur videos, shot by passers-by, documented forceful tactics by officers. Officials hope to install cameras in most of the 300 patrol cars in that bureau by the end of next year, with the goal of expanding to the rest of the force over the next three years. As of Monday, the LA City Council approved $5 million for the cameras. Story from washingtonpost.com. . . [Michele Berry]

"What Would Warren Do?"

From NPR.org: Commentator Jim Newton says that for the Supreme Court this session, the most urgent issue it will face this session is freedom during wartime. Jim Newton is the author of the book Justice for All: Earl Warren and the Nation He Made. Listen to commentary here on the topic. . .  Find a collection of other articles on homeland security, detentions, search & seizure, and confessions & interrogation here and here. [Michele Berry]

Surveillance Cameras Watch Ideologies Clash

UPDATED: Here's another perspective from the SanFrancisco Chronicle: "Community, Not Just Technology, Needed in Crime Prevention"

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San Francisco Mayor Gavin Newsom announced last week that the city will install 50 surveillance cameras in high-crime public housing projects around the city in attempts to to reduce the recent influx of violence. But in a society where surveillance cameras seem to have become ubiquitous, and in a major city that lags far behind other cities of its size in terms of camera presence, the Mayor's announcement has generated staunch criticism. 

This column criticizes the critics. Here's an excerpt:  "Several public officials have decried the use of the security devices as an infringement on civil liberties — no matter how many criminals they help catch. And those people with thick rap sheets aren't happy about them either.  I have always been against more government interference in personal privacy, but that is hardly a big issue here. Nor is the use of surveillance cameras in general. They are not being installed in living rooms — just in the places where a lot of innocent people are terrorized.

San Francisco, reputedly one of the nation’s most technologically advanced towns, lags well behind big cities such as New York, Chicago and Los Angeles in using the electronic eyes as a crime deterrent. Those cities have had success in reducing crime — which is why they have put cameras in hot spots. Some San Francisco officials have their knickers in a twist over a desire to install less than 100. Supervisor Jake McGoldrick called the installation of surveillance cameras a “case of mistaken strategy...The mayor says he’s doing 50 other [things] to fight crime and I think he should focus on the other 49,” McGoldrick said.

And while I can applaud his unshakeable ideological stance, it flies in the face of reason. Surveillance cameras are so ubiquitous in our daily lives, we’ve come to take them for granted. There is hardly a place where anyone can go today where they aren’t electronically monitored — department stores, supermarkets, ATMs, elevators. In a post-9/11 world, is anyone really objecting that cameras have become a security staple on transportation lines, including BART and Muni?" More from The Examiner. . . [Michele Berry]

ACLU Files Suit...

in 20 states over NSA surveillance. 

Violence=Knock and Announce Exception

From the Washington Post:  The Supreme Court ruled unanimously Monday that police do not need a warrant to go into a home to break up a bloody fight.  Justices said that a "melee" that Brigham City, Utah, police officers saw through a window early one morning in 2000 justified rushing in without knocking first.  Rest of story... [Mark Godsey]

SCOTUS: Reviews Knock and Announce Rule

Yesterday, the Supreme Court heard a case testing the knock and announce rule.  In the case in question, the police waited only three to five seconds after announcing their presence (without knocking) before entering the home. The case is Hudson v. Michigan, 04-1360. More. . . [Mark Godsey]

Tribe on NSA Wiretapping

Here.  [Mark Godsey]

Can Cameras Racially Profile?

No, they're not that high tech.  But the people who locate them in London's suburbs can and apparantly have.  Or at least that's what the statistics seem to show.  In Metropolitan London, black people account for 46% of all arrests generated by new automatic numberplate recognition (ANPR) cameras, even though black residents account for only 11% of London's population.  Further study of the disparity shows that cameras are heavily concentrated in the London boroughs most heavily populated by black residents. More. . . [Mark Godsey]

Subscription to Porn site = Probable Cause

The 9th Circuit Court of Appeals, in U.S. v. Gourde, No. 03-30262, ruled that mere membership in a pornographic website that contains both legal and illegal porn is enough to authorize the FBI to search a home computer.  The 7-2 decision provoked a strong dissent from two judges who are on the liberal and conservative extremes of the court joined forces.

"The majority concludes that the [search warrant] affidavit made out probable cause by assuming that anyone who subscribes to an internet site with both legal and illegal material must collect illegal material from the site," wrote Judge Andrew Kleinfeld, a conservative appointee of President George H.W. Bush. "This assumption stacks inference upon inference until the conclusion is too weak to support the invasion of privacy entailed by a search warrant," wrote Kleinfeld. More from the National Law Journal. . . [Mark Godsey]

SCOTUS Limits Police Search Power

Yesterday, in Georgia v. Randolph (04-1067)the Supreme Court ruled 5-3 that it is unconstitutional for police without a warrant to search a home, if two occupants are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count.

"We have to admit we are drawing a fine line," Justice Souter wrote for the Court, but added "we think the formalism is justified" and that it will be easier to enforce in practice. Thus, the Court held, if the individual who may be at legal risk of prosecution and thus does not want the police to enter "is in fact at the door and objects," the other occupant's consent to search will not suffice. But, Souter added, if the objector is nearby, and not at the door, an objection by him will not block the search. The Court stressed, though, that police may not take a potentialy objecting tenant away from the home in order to be able to make the search with the other occupant's consent.

Chief Justice Roberts, in his first written dissenting opinion, said the majority fashioned a rule that "does not implement the high office of the Fourth Amendment, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room....The cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share with a non-consenting abuser." More. . . [Mark Godsey]

Courts, Congress, DOJ Scrutinize Witness Detention Law

After reports that it has been abused in terrorism investigations, a 22-year-old federal law that allows people to be held without charges if they have information about others' crimes is coming under fresh scrutiny in the courts, in Congress, and within the Justice Department. The law allows so-called material witnesses to be held long enough to secure their testimony if there is reason to think they will flee. But lawyers for material-witness-detainees say the law has been used to hold people who the government fears will commit terrorist acts in the future, but whom it lacks probable cause to charge with a crime.

Concerns about how the law has been used have prompted calls from across the political spectrum for a reassessment. That debate has also ignited a broader one: whether the United States should join the several Western nations that have straightforward preventive detention laws. More from NYTimes. . . [Mark Godsey]

Dershowitz Examines the Legal Questions of Preemptive War

If U.S. officials overhear talk of a planned murder or rape while eavesdropping on a telephone call under President George W. Bush's domestic spying program, what can they do -- within the law -- to stop it?  "We wouldn't know where to look to find the law because there is no law," said celebrated criminal defense lawyer and Harvard CrimProf Alan Dershowitz.  "Plainly we would not want them to ignore it" but no laws have been written to govern how the information can be used in court, he said.

In his new book, "Preemption: A Knife That Cuts Both Ways," Dershowitz supports preventive counter-terrorism measures -- from wiretapping to profiling, mass inoculation, targeted extrajudicial killings and preemptive military action -- to head off attacks by suicide bomber and other terrorists. But he says the Bush administration is bending the rules by failing to draw legal boundaries around those measures. Never shy of controversy, Dershowitz is sending each U.S. Senator and Congressman a copy of his book to spur debate on the issue. More from Washingtonpost.com. . . [Mark Godsey]

Alaska: Suspicionless Frisks Argued in Supreme Court

What if someone in a high crime area engages in no behavior giving rise to reasonable suspicion or PC, but the police want to frisk them anyway during consensual questioning?  No good, according to the Alaska Court of Appeals (opinion here), but the prosecution has appealed. [Jack Chin]

Case's Mock NSA Wiretap Hearing to Broadcast February 22

Case School of Law's recent Mock Congressional Hearing on the NSA Wiretap Controversy will be broadcast on WCPN, Cleveland's National Public Radio Station (90.3 FM), from 7:00-8:30 pm on Wednesday, February 22, 2006. The hearing featured two of the country's foremost experts on national security law, Ruth Wedgwood and David Cole, with a panel of Case law professors playing the part of the Senate Judiciary Committee.

Surveillance Cameras in Private Homes? Read Houston Police Chief's Proposal

From Grits for Breakfast: Houston Police Chief Harol Hurtt not only wants to put cameras in public spaces downtown, he also wants to force new malls and apartment complexes to install camera systems with direct feeds to the police department as part of the building permit process, maybe even in private homes.  As for privacy, Hurtt told reporters, "If you're not doing anything wrong, why should you worry about it?" More. . . [Mark Godsey, thanks to Scott Henson]

3rd Cir: Police May Not Manufacture Exigency to Justify Warrantless Searches

The decision in United States v. Coles overturns a conviction for possession of crack cocaine and sharpens a split among the federal circuits in cases where police claim that a warrantless search was justified by "exigent circumstances." Prosecutors argued that the search of Terrence Coles' hotel room was valid because police heard rustling sounds and a flushing toilet soon after they announced their presence and therefore feared that evidence was being destroyed.

But defense attorney Jeffrey M. Lindy urged the court to focus on earlier events and argued that the police had no excuse for failing to obtain a warrant prior to approaching the hotel door in the first place. Voting 2-1, the court agreed with Lindy and held that the investigative tactics used by the officers had "impermissibly manufactured the exigency."

Senior U.S. Circuit Judge Leonard I. Garth noted that the agents at first used "subterfuge" to gain entry to the hotel room by falsely claiming they were "room service," and later that they were maintenance workers sent to fix a leak. It was only after those two attempts failed, Garth noted, that the officers identified themselves as police and then heard the toilet flushing. More from The Legal Intelligencer. . . [Mark Godsey]

Case Western Law School to Host Mock Congressional Hearing on NSA Wiretap Controversy

On December 16, 2005, the New York Times broke the story that the Bush Administration had ordered the National Security Agency to monitor international telephone calls and e-mails of U.S. citizens with potential al Qaeda links without obtaining warrants from the Foreign Intelligence Surveillance Act Court. The revelation set off a ferocious political and legal debate, with Senate Judiciary Committee Chairman Arlen Specter promising a Congressional hearing. Meanwhile, lawyers for convicted terrorists are seeking to re-open their cases, claiming the government may have used evidence procured through unlawful wiretapping.

To help explore the legal, practical, and constitutional issues framing this controversy, Case Western Reserve University School of Law will present a mock Congressional hearing featuring two of the country's foremost experts on national security law: Professor Ruth Wedgwood of the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University, and Professor David Cole of Georgetown University Law Center.

The event, part of the Frederick K. Cox International Law Center's International Debate series, will take place Thursday, February 9 from 4:30-6 p.m. in Room A59 of the law school, 11075 East Blvd. It is free and open to the public, and 1.5 hours of CLE credit is available, pending approval. It will be webcast live at: http://www.law.case.edu/centers/cox/content.asp?content_id=77

More here.  [Mark Godsey]

Al Gore on Warrantless Wiretaps

Here.

Oral Arguments in 4th Amendment Case Today

Hudson v. Michigan

Docket:04-1360

Term: 05-06

Appealed From: Michigan Court of Appeals (April 13, 2005)

Oral Argument: 01-09-06

Subject:4th Amendment, knock and announce, exclusionary rule

Question presented: Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a 4th Amendment "knock and announce" violation, as the 7th Circuit Court of Appeals and the Michigan Supreme Court have held, or is evidence subject to suppression after such violations, as the 6th and 8th Circuits, the Arkansas Supreme Court and the Maryland Court of Appeals have held?  More . . . [Mark Godsey]

SCOTUS to Decide what Emergency Circumstances Justify Warrantless Searches

From Law.com: The Supreme Court said Friday it would clarify when police can enter a home without a search warrant, in a case involving Utah officers who watched a fight through a window.  Justices will consider officers' handling of an early morning complaint in Brigham City about a loud party. The officers peered through a door and windows and saw four adults restraining a juvenile, who then broke free and punched one of the adults in the face. The officers entered and arrested the adults, who were charged with intoxication, disorderly conduct and contributing to the delinquency of a minor.

A judge threw out the charges, on grounds that the police entered without a search warrant. In an appeal, the state of Utah argued that courts are deeply divided on what emergency circumstances are required for warrantless police entries.  The case is Brigham City v. Stuart, 05-502. [Mark Godsey]

More Cities Install Public Suveillance Cameras

We previously blogged about this phenomenon here.  Now LA and Gary, Indiana have jumped on the surveillance camera bandwagon.  [Mark Godsey]

Sherry Colb on Warrantless Wiretaps

Here. [Jack Chin]

Muslim Sites Monitored for Radiation

Story here. [Jack Chin]

Domestic Surveillance

Dan Solove posts on the developing story here and here. [Jack Chin]

Interesting New 4th Amendment Case

From BNA.com:  "A defendant "abandoned" her purse and wallet for purposes of the Fourth Amendment when she left them in her unlocked vehicle after running off the road in the middle of the night and did not contact police or make arrangements to retrieve the vehicle until the next day, the Utah Supreme Court held Nov. 22. The court said a contrary decision by the intermediate appellate court and the caselaw on which that court relied went astray by confusing Fourth Amendment and property law standards of abandonment. (States v. Rynhart, Utah, No. 20040115, 11/22/05).

Nude Photos of Jennifer Aniston

can't possibly be "illegal" if taken from a lawful vantagepoint with commercially available and commonly used equipment, can they?  At least, they cannot violate a "reasonable expectation of privacy", right?  But lawyers who filed a lawsuit described on The Smoking Gun say otherwise.  This matter is slightly reminiscent of a U Penn student who photographed some other students in flagrante delicto, and then distributed those photos.  At first the enterprising photographer was subjected to disciplinary proceedings, but the charges were ultimately dropped. [Jack Chin]

Stop, "Taser Time" in Indiana Leads to Lawsuit

After being pulled over for allegedly running a red light, submitting to sobriety tests and inconclusive breathalyzer tests, police officers informed 40 year-old Jennifer Marshall that she would be taken to jail unless she submitted to a chemical blood test.  When Marshall told the officers she didn't know the meaning of submitting to a "chemical test" and that she wanted to make a phone call (to her attorney), the officers simultaneously denied Marshall permission to make the call.  And when she wouldn't drop the phone on demand, the officers wrestled Marshall onto the hood of her car, declared "Taser time" and jolted Marshall's arm with the device. The incident was captured on the officers' cruiser camera, the video of which will be used in her suit for excessive use of force. . . [Mark Godsey]

Wily in Washington: State Trooper Goes "Panhandler" to Bust Drivers

CrimProfs John Strait of Seattle Law and John Junker of Washington Law say the tactic may have been sly, but it's perfectly legal.  A Washington State Trooper posed on the side of the road wearing a cardboard sign that read, "Happy Holidays, Buckle Up," while keeping a close look to see if drivers were buckled up.  If not, he radioed a fellow trooper down the road to make a stop.  A few drivers even offered the trooper money, thinking he was a panhandler. In all, the ploy enabled the troopers to make 41 stops, give 30 tickets at $101 a piece, make six outstanding warrant arrests, and one drug arrest.  Story. . . [Mark Godsey]

New York: Random Subway Searches Upheld

Here's Daniel Solove's extensive coverage of the decision over at Concurring Opinions. UPDATE:   Here's more. [Jack Chin]

Do "Wasp Sniffs" Constitute a Search?

Wasps may be replacing dogs in the future for sniffing out drugs and explosives.  [Mark Godsey, hat tip to Curtis Scribner]

Interesting New 4th Amendment Case

The Sixth Circuit holds that entries onto home's curtilage by tax assessor are not searches for purposes of the 4th Amendment.  Decision here.  [Mark Godsey, via CrimProf Michael Mannheimer at NKU]

South Carolina: Illegitimate Traffic Stops for Money

From MSNBC.com: "A state trooper was arrested Friday after authorities accused him of taking thousands of dollars from Hispanic motorists instead of issuing traffic tickets...Lexington County Sheriff James Metts said investigators were tipped off after a farmer asked if it was appropriate for police to stop migrant workers and take money without issuing a ticket.

Witnesses and victims spoke little to no English, the sheriff said. 'I think most of them were pulled over because they were Hispanic,' Metts said. 'This person wasn't interested in making legitimate stops in my opinion. He was interested in extracting money from these people.'" [Mark Godsey]

Oral Argument in 4th Amendment Consent Case

Yesterday, SCOTUS heard oral argument in Georgia v. Randolph.  Question presented:  Can police search a home when a co-habitant consents and the other co-habitant is present and does not consent?  Details here.  [Mark Godsey]

A Campaign for Surveillance Cameras

From NYTimes.com: "In August, the Metropolitan Transportation Authority announced a deal in which the aeronautics giant Lockheed Martin lead a group of contractors in installing a $212 million, 1,000-camera surveillance system in the city's subway stations. The agreement, which also included 3,000 motion sensors and cellphone service in many stations, came on the heels of the London subway bombings in July.

But in Forest Hills, Queens, residents have long clamored for cameras. And they are still wondering when, or if, cameras will be installed, and wh