Category Archives: ct state law

Rewarding lying cops: America’s crisis of faith

There is a crisis of faith in America. A crisis that exposes the deep chasms that exist in our society. Traditionally a community caretaking function, and thus deserving of the highest levels of faith, trust and respect, policing in America is now a flashpoint; a litmus test through which to determine which side of the privilege aisle you rest your head on.

A Gallup poll released last week showed that while police departments were one of the institutions that Americans on average had the highest confidence in (57% overall), this was belied by deep divides among racial and political lines. Although, it should be noted, that 57% confidence in an institution whose sole function is to protect the lives and liberties of fellow citizens is truly an abysmal number.

Mathematics suggests that this overall percentage would be higher if police departments decided to make an effort to treat black individuals with the same care and respect they seem to treat white individuals. Blacks trust police at around 34% and urban blacks even less so.

Can you blame them? After the events of the last 5 months, starting with the death of Michael Brown, through to the homicides of Eric Garner, John Crawford and Tamir Rice, through to the mass demonstrations, the no-protesting zones, the “rioting”, the curfews, the non-indictments of Darren Wilson and Daniel Pantaleo, all of this piled onto the overwhelming yoke of stop and frisk, tough-on-crime, the drug war and a lost generation, is there any reason to expect that black Americans should trust any police officer?

Is it any surprise that there is no faith in the community caretaking function of visitor-officers, who are increasingly not a part of the community they purport to keep secure? Do we have any right to demand respect for people like Cleveland Police Patrolman Union chief Jeffrey Follmer who repeatedly refer to a slain 12-year old boy as “the male” and justify the actions of a police officer who almost immediately upon arriving at the scene shoots and kills that child? Why would any level-headed, rational, liberty-loving American give any modicum of respect to a police officer who believes, like so many before him, that it is their job to give orders and civilians’ jobs to obey and get out of the way, or die.

“How about this: Listen to police officers’ commands. Listen to what we tell you, and just stop,” he said. “I think that eliminates a lot of problems.”  “I think the nation needs to realize that when we tell you to do something, do it,” he added.

This is an actual statement by an actual police officer made in 2014 in the Greatest Country in the World, with all its individual freedoms and liberties.

Is there any wonder that there is no respect for police officers, when, on the one hand our courts repeatedly remind us that there is no greater public policy interest than one that ensures the truthfulness and integrity of police officers. These are the people we pay to protect us at night as we sleep. These are the people whom we ask to step in front of bullets for us. These are the people of whom we expect honesty, compassion and a desire to “serve and protect”.

Though if you were to step into a criminal courthouse in America, you would see that there is less truthfulness and more truthiness – truth that wouldn’t stand to be held back by facts – when it comes to testimony from police officers. Is it any wonder, then, that when black Americans accused of crimes confront their Blue Uniformed accusers and listen to them twist and churn and shuffle the truth into truthiness, that they would lose all respect?

I know of no sensible, pot-smoking, drug dealing individual who, upon being approached by police officers, would roll down his windows and offer up the information that he was carrying a lot of marijuana in the car. Yet this account of spontaneous confession is among the most popular narratives to be recounted in police reports across the state and, I suspect, the country.

I am sad to report that courts accept this ludicrous version of events. Is it because they willingly turn a blind eye to a dubious report of an encounter with an eye to a greater good – getting the drugs off the street – or is it because they truly have no experience in the world that is the subject of these prosecutions that they must believe that all Americans are Police fearing first and God second. For it is true that the police “serve” and “protect” the demographic that has up to very recently been the one that overwhelmingly populates our judicial benches.

Malice is not required to discriminate against others and I am certainly not implying that such malice exists. The injustice is a product of the way the system is set up and has been for decades.

Yet how do we ask our fellow citizens to trust and respect the police, especially when dishonest behavior on their part is not only not punished by our courts, but rewarded.

Earlier this week, our supreme court reinstated the employment of a police officer who had been terminated for lying while on the job. In a 3-2 opinion [PDF], the majority concluded that while there existed a strong public policy in requiring police officers to be honest, because this particular officer’s lies weren’t frequent or under oath, it wasn’t worth him getting fired. They cite to Brady v. Maryland as an example of the police’s duty to be honest and seek justice, which is ironic, because a prosecutor in Texas has just filed suit against his office for firing him for disclosing exculpatory information. But back to this case.

Officer Justin Loschiavo, of Stratford, CT, was suffering from epilepsy but had them under control. One day, in 2009, he suffered a seizure, lost control of his patrol car and struck two other vehicles. While no one was injured, he was removed from patrol duty. Over the course of the next 6-9 months, he sought to be reinstated. To that end he got clearance from his personal physician and then met with someone the town had hired to evaluate him.

Turns out, he removed documents pertaining to his seizures and his alcohol use from the file that he turned over to the town’s doctor. It was for this lie that the town sought to terminate him.

The majority makes a big deal of the fact that he didn’t lie to other officers or in the performance of his duties, but as the dissent from Justice Palmer points out [PDF], these are absurd statements: he lied and he lied to remain a police officer. He lied about his medical condition which could put others at risk. If that doesn’t strike at the very heart of what a police officer is supposed to do: be honest, be sincere and help others, then I don’t know what would. It makes no difference that he didn’t lie under oath. How are we to trust that when he does take the stand, with someone else’s liberty at stake – that what comes out of his mouth will be the truth and not some self-serving statement?

Justice Palmer concludes:

In sum, the town had no choice but to terminate Loschiavo’s employment as a police officer because his intentional and serious dishonesty has grievously compromised his credibility and integrity, and he has been rendered unfit to serve as a sworn officer.

I think the same can be said of black Americans’ view of police departments as a whole.

[This is my latest at the CT Law Tribune.]

Yet another example of unsanctioned prosecutorial misconduct

I wrote last week about the double standard in sanctioning defense attorneys while scores of prosecutors nationwide engage in deliberate and willful misconduct that deprives individuals of their Constitutional rights without any consequences whatsoever.

A helpful reader sent me a link to this CT Supreme Court opinion from 2012 that I’d missed, as a further example. In this case, the defense argued that in order to convict him of aggravated sexual assault and aggravated kidnapping (both require the use of a firearm), the jury must be instructed that he actually possessed such firearm. The operative language of both statutes is similar and it is this:

(1) such person uses or is armed with and threatens the use of or displays or represents by such person’s words or conduct that such person possesses a deadly weapon

The reason for this argument is that it is an affirmative defense that the weapon was inoperable. Thus, it would make no sense for the affirmative defense to be applied to someone who had an inoperable gun, but unavailable to someone who had no gun at all.

The Court agreed with the prosecution that the defense had not preserved this argument and thus declined to consider it. And then it dropped this footnote:

[W]e feel compelled to note that in the section of her appellate brief addressing this issue the state’s appellate counsel, Assistant State’s Attorney Melissa L. Streeto, purported to provide quotations of §§ 53a-70a (a)(1) and 53a-92a but inserted commas supporting her statutory construction without any indication that alterations had been made.

In response to questions at oral argument regarding the accuracy of these quotations, she explained, in justification of the improper insertions, that “I put those there because that is how the statute should be read.

No matter how a statute should be read, it is for the legislature—and not counsel—to determine how the statute should be written. We strongly disapprove of the tactic employed here, which was at the very least misleading, and we remind counsel that they are obligated to indicate, through the use of brackets or explanatory parentheticals or otherwise, any modification to quoted materials.

Contrary to Assistant State’s Attorney Streeto’s suggestion at oral argument, and notwithstanding her apology for misleading the court, this obligation is not met by including unmodified copies of the relevant texts in an appendix.

A prosecutor, in reproducing something as basic as the text of a statute – something that everyone has free access to – which she must’ve known the parties would be familiar with, decided to pass off as accurate her own interpretation of the statute.

Then, upon being questioned, had the hubris to state “that’s how the statute should be read”.

This is what happens when prosecutors are allowed to run rampant without any oversight. Once again, I’m fairly certain, despite the Supreme Court’s concern and strong disapproval of this “tactic” that was “at the very least misleading”, she was not punished or reprimanded, let alone referred to the grievance committee.

When prosecutors apologize, everything is okay, because they didn’t really mean to deprive you of your Constitutional rights. After all, they’re in it for justice.

A double standard in prosecutorial misconduct

Last week, in a Connecticut courtroom, something unprecedented happened: after a jury returned a guilty verdict in a trial, the judge, from the bench, suspended the defense lawyer for 20 days from the practice of law, for twice-violating a court order.

The lawyer is long-time New Haven attorney John Williams, who is a former law partner of Norm Pattis, so I’ll refer you to Norm for a defense of Attorney Williams.

Apparently, Williams’ client was tried in Federal court for the same offense and acquitted and then returned to State court for another trial. The judge ruled that the acquittal could not be entered into evidence and the jury could not be told about it.

Twice, Williams slipped up and mentioned the acquittal – once during cross-examination and once during closing arguments. After the verdict the judge announced his: a suspension for 20 days1.

Black men are exigent circumstances

Pursuant to the protections of the Fourth Amendment granted to every resident of this country, police cannot enter a residence or a closed bedroom without a warrant. This would violate the Fourth Amendment. There are certain exceptions to that warrant requirement, such as the existence of “exigent circumstances”.

[t]he term, exigent circumstances, does not lend itself to a precise definition but generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.

There are three categories of circumstances that are exigent: those that present a risk of danger to human life; the destruction of evidence; or the flight of a suspect.

The exigent circumstances doctrine, however, is limited to instances in which the police initially have probable cause either to arrest or to search.

So, when one day police officers knocked on the door of the third floor apartment at 239 Knickerbocker Avenue, Stamford, CT, the following was known to them:

  1. GPS data from a third-party’s cell phone, which was believed to be in the suspect’s possession, suggested that the suspect had been in the general vicinity of that address (not that apartment) for some unknown period of time in the past 41 hours, and

  2. That the resident of the third floor apartment had recently been keeping company with two black men in her apartment. The suspect, naturally, was black.

Since the police were searching for a murder suspect from New Jersey, who they believed to be armed and dangerous, they thought it permissible to enter the bedroom without obtaining a warrant, because of “exigent circumstances”. But that’s just sophistry.

As Justice McDonald’s blistering dissent [PDF] states:

Thus, at the time the police knocked on Valvo’s apartment door, all they reasonably believed was that [the murder suspect] Singer possibly was in possession of a cell phone, that this cell phone had been in the vicinity of 239 Knickerbocker Avenue at some moment in the preceding forty-one hours, and that a man who has the same skin color as Singer had been staying in the third  floor apartment of 239 Knickerbocker Avenue for an unspecified period of time.

You’d think, now, that the name of the case is State v. Singer. It isn’t. It is State v. Kendrick [PDF]. Mr. Kendrick is one of those unfortunate black men who happened to be in the apartment at that time and in whose possession a gun was found after this warrantless search.

Mr. Singer was arrested in New Jersey, where the crime of murder had been committed. Further, the cell phone used to ping the general vicinity of Knickerbocker Avenue in Stamford? Never found in Stamford.

But this is all the information relied upon by the prosecution to convince a judge that exigent circumstances existed: the possibility that a black suspect had been in the vicinity of an apartment building and the knowledge that one of the apartments therein had a few black men in them.

That, the majority opinion states, is enough to lead officers to believe that there exists “a risk of danger to human life”.

Can you every imagine any court saying that about white people? The suspect is white, and armed, and that apartment building there has white people in it, so go ahead and burst into any room you want because officer safety!

Of course not. This stands only because being black carries with it the subtext of being a criminal. And, as this Court is wont to do, the result justifies the means: there was a gun, after all. So he was a criminal and he was dangerous.

The dissent makes the point that the police and prosecution may have had further evidence to tie those residents in that apartment to the cell-phone and the murder suspect, but chose not to present it. If that’s the case, this opinion is even more troubling.

What this signals, in that event, is that all the police and prosecution have to proffer to a trial judge in order to circumvent the Constitution is that the suspects are black. That, alone, is sufficient to justify an officer’s fear that the suspect is a danger.

We already know that in Connecticut minorities cannot freely walk the streets anymore without being suspected of criminal activity. Now minorities can’t sleep in their apartments at night without fear of cops busting in without any probable cause. Because our Court has affirmed that being black is the same as being armed and dangerous.

Some lawyers in CT are also mandated reporters

That's your constitution in the middle, getting fucked over.

That’s your constitution in the middle, getting screwed over.

I wrote yesterday about the CT legislature failing to enact an exemption to the mandatory reporting statute for social workers employed by defense attorneys and the problems attendant to that.

In that post, I glibly noted that the legislature hasn’t yet made lawyers mandated reporters – and I was wrong.

In the public act that was just enacted, PA 14-186, the definitions of mandated reporters were “clarified” and some others were added to the list. This, surprisingly, now includes the following:

(14) any paid administrator, faculty, staff, athletic director, athletic coach or athletic trainer employed by a public or private institution of higher education who is eighteen years of age or older, excluding student employees.

The bold portion is the relevant portion. This would, generally speaking, include every professor or adjunct professor at a college, university or graduate school.

What is a graduate school? A law school. So faculty at a law school – also called law professors – are thereby included on this list. But that doesn’t seem to be the end of it. Any paid faculty encompasses the myriad adjunct professors who are full-time lawyers, but also dabble in teaching students on the side.

What makes it worse is that every law school in Connecticut has several clinical programs that deal exclusively with the representation of poor and disenfranchised people: the criminal trial clinic at UCONN, the appellate clinics at UCONN and Quinnipiac, the immigration and prisoner rights clinic at Yale, among many others1.

All of these clinics employ lawyers as professors who are responsible for representing these clients in real, actual courts and they supervise students for whom they are also responsible. They also employ full-time public defenders as adjunct faculty. Some also employ judges.

Law school clinics are a great teaching environment for lawyers of tomorrow, but they are also a tremendous cost-effective way to provide much needed legal services to poor citizens of this state and refugees from other countries.

But now, these law professors – the faculty members and the part-time paid adjunct faculty of these clinical programs who are most frequently public defenders – are also mandated reporters.

Worse, it doesn’t matter if the information they gleaned was during the course of their full-time employment as a public defender. By virtue of their being adjunct faculty members, they have to report their own clients, thus vitiating any attorney-client confidentiality and utterly destroying the Sixth Amendment guarantee of conflict-free representation.

This is utterly ridiculous. While there are many ethical opinions out there that state [PDF] conclusively that attorney-client privilege trumps [PDF] any mandatory reporting statute, the reality is that the legislatures are making failure to report suspected child abuse a very serious crime with incarceration as the penalty.

Of course, one might assume that the same protections apply to social workers or mitigation specialists who are part of the defense team – and there is some appellate authority to support that – but we aren’t going to know either for sure until a lawyer or social worker fails to report and gets arrested. While there are some who will put their liberty on the line and challenge the statute as being unconstitutional, that cannot be asked of anyone – no one should have to be the guinea pig.

Whether knowingly or otherwise, this legislature has taken steps to completely shred the 6th Amendment in Connecticut. This must be rectified immediately.


AQA: A conversation about the Fourth Amendment

Dan Klau – lawyer, blogger and Connecticut resident – and I engaged in a lengthy back and forth conversation last week on the importance of the Fourth Amendment, searches and seizures, the recent CT Supreme Court opinion in State v. Kelly and the mess in Ferguson. This is, we hope, the first in a series of conversations about pressing legal issues.


DAN:  Gideon, on August 12, 2014, the Connecticut Supreme Court officially released its decision in State v. Kelly [PDF].  The defendant challenged his arrest and conviction (on a conditional plea of nolo contendere) for narcotics possession with the argument that his initial arrest violated the Fourth Amendment and its counterpart under the Connecticut Constitution (article first, §§ 7 and 9). A majority of the Court held that the police were entitled to conduct a limited “stop and frisk” of the defendant, also known as a Terry-stop after the U.S. Supreme Court’s 1968 decision of the same name, even though the police did not have a reasonable, articulable suspicion that the defendant had done anything wrong. What they did have was a reasonable, articulable suspicion that another person who was walking down the street with the defendant when they detained him had committed a felony. That suspicion, the Court held, was reason enough to detain the defendant along with the actual suspect.

On twitter, on your blog, and in person, you have repeatedly complained to just about everyone you know about the lack of press coverage this decision has received.  Why do you think this particular case is so important?

GIDEON:  To understand why this case is so important we have to ask ourselves several questions: do I want to be stopped by the police when I’m out on the street, for absolutely no reason? Do I want to give the police that power over me; to seize and detain me, without any reason whatsoever to believe that I have done anything wrong? Is it fair that I should lose my individual right of freedom just because the police might mistakenly suspect my companion of committing a crime?

Frankly, there are also a lot of undertones of privilege. The common response is: “if I haven’t done anything wrong, I have nothing to hide”. So some might say: what’s a minimal incursion on my individual liberty if there’s something greater at stake: stopping crime. And that may be true for you. But it’s not true for thousands of others in our community. It’s not true, particularly, for the less privileged. For them, police intrusion is a repeating and wearying occurrence. For them, police intrusion is a way of subjugation. We have the luxury, from our suburbs or positions of privilege, to say that it isn’t a big deal. But just ask the people of Ferguson, or those stopped and frisked by the hundreds of thousands in NYC.

This case is important because there aren’t two sets of laws: one for the privileged suburban folk and one for the poor minorities. There is one law. This law applies to all of us. There is one Constitution. The right to not have our liberty confiscated without particularized suspicion applies to all of us. That’s why this case is critical.

DAN:  That’s quite a bit to chew on.  Let me try to break it down by asking you a quick follow-up question.  My impression from your twitter and blog comments is that you think the Kelly decision marks a significant change or departure from existing search and seizure precedent.  Is my impression correct? And, if so, in what way do you think Kelly changes the law?

GIDEON:  It is indeed a departure from existing law. The closest analogy is what everyone knows of as a “Terry” stop or a pat down – in other words, a stop and frisk. The law in that regard is that police need “reasonable and articulable suspicion” that a person has committed or is committing a crime in order to minimally detain them and conduct an investigation. Further, if they believe that the person is armed, then they can conduct a “limited” pat-down to search for weapons. So up to now, an individual’s liberty can only be seized if the police have some particular belief with regards to the subject of the seizure.

Kelly has created a whole new category whereby it is not necessary for police to have any belief that the person they want to detain has committed or is committing a crime or is armed. That, to me, is a significant departure.

DAN:  OK.  Let me challenge you on that point.  In my opinion, a critical aspect of the decision—and perhaps a reason why it has not received much press attention—is that the defendant asked the Court to decide whether the Connecticut Constitution afforded him greater protection under the circumstances of the case than the Fourth Amendment.  Why did the defendant ask the Court to consider the state constitution? Because it seemed fairly clear, at least to me, that he had no Fourth Amendment claim under existing precedent.

Here’s why:  As you know all too well, the protections of the Fourth Amendment, i.e., the need for a warrant based on probable cause and signed by a judge and the requirement that any search or seizure be “reasonable” even in the absence of a warrant (like in a Terry-stop case) only come into play if the conduct of the police rises to the level of a “search” or “seizure.”  The decision in Kelly cites U.S. Supreme Court case law for the proposition that when police tell a person to “stop” so that the officer can question him/or, that verbal command does not constitute a seizure for Fourth Amendment purposes unless the person actually submits to the officer’s request.

Why is that important in this case?  Because when the police told the defendant and his companion to “stop,” they did not submit to the request.  Thus, there was no seizure of either the defendant or his companion at that point under the Fourth Amendment.   The defendant and his companion then both ran away from the police officer.  While running, the defendant dropped a bag of cocaine. That gave the police officer a constitutionally justifiable basis to detain him.

In short, at least as far as Fourth Amendment jurisprudence is concerned, the decision does not seem like a departure from existing law.  I’m not saying I like the current state of Fourth Amendment law.  For the reasons you mention, I think it affords the police far too much discretion to stop people without a truly legitimate justification.  I’m just not sure the decision represents a significant change in federal law.

GIDEON:  Well, the Fourth Amendment to the United States Constitution provides the bare-minimum of rights that are given to citizens. States are free to provide greater protections – and in Connecticut we have. In our state, our freedom is “seized” under the state constitution when a reasonable person would not feel free to leave.

The argument in this claim of a constitutional violation is based on a violation of the Connecticut Constitution, which provides greater protections to our residents than does the federal constitution. So talking about the federal constitution is irrelevant in this circumstance.   All the parties – the prosecution, the trial judge, the defense attorney, the Appellate Court and the Supreme Court – agree on two things: 1) that Kelly was seized under the state constitution when he was first told to stop and, 2) more importantly, that the police had absolutely no reasonable or articulable suspicion to seize him when they did.

In other words, they had absolutely no basis to stop him and yet they did. And the Supreme Court justified that by saying that people who, as far as the police know, are completely innocent and have not given any indicia of criminal activity can still have their freedom curtailed because of officer safety.  I’m not the only one who thinks this is wrong and quite problematic: two justices wrote a blistering dissent from the Court’s opinion.

DAN:  So now we are getting to the nub of the case.  I agree with everything you just said. I just think it is important for readers of the decision to understand that the Fourth Amendment was irrelevant in this case because, under federal law, the police did not “seize” the defendant when they told him and his companion to “stop.” That command, however, was a seizure under the state constitution.

So now let me ask you this hypothetical, which I admit right up front is different from the facts of the Kelly case: Suppose the police have a reasonable, articulable suspicion that person A has committed a violent felony and they locate that person walking down the street with a companion, person B.  The police ask person A to stop.  He does, as does person B.  The police want to conduct a stop and frisk of A.  What should they do about B, who is hanging around?  They could tell him to move along.  What if he doesn’t?

GIDEON: Yes, it’s critical to remember that our state constitution in this case provides more protection than the federal government and that’s a good thing.

In your scenario, I think the police should do nothing. B is legally on the street; he isn’t harassing them and they don’t suspect him of committing a crime. He has every right to be there and should be allowed to. If, of course, he starts interfering with them then they can determine if he needs to be detained.

But your question raises a very important point: imagine if B is a reporter, or just a citizen photographer. Shouldn’t he be allowed to be on the street to observe their stop-and-frisk of A? Don’t we want citizens to have the ability to observe and record our constabulary? If we start saying that hey, if B doesn’t scoot, the police should have the ability to arrest him, we open ourselves up to all sorts of abuses: why wouldn’t they just simply banish all press and photographers from scenes of arrest so there’ll be no record of their violence?

DAN:  I think you’ve touched on a key point about the opinion, and one that has bothered me since I first read it.  As you state, the Connecticut Supreme Court has interpreted the Connecticut Constitution as providing more protection against searches and seizures than does the Fourth Amendment.

One of the ways in which our state constitution provides greater protection is by “triggering” the constitutional protections against searches and seizures (i.e., warrants, probable cause, reasonableness, etc.) at an earlier point in the police/suspect interaction. To briefly reiterate, whereas a seizure does not occur under the Fourth Amendment when the police demand that a person “stop” until and unless the person actually submits to the stop, under the state constitution the seizure occurs when the police officer makes the demand to stop, period.  Since the demand to stop itself is the seizure, it must be supported by at least a reasonable, articulable suspicion to pass state constitutional muster.

The problem I have with the Kelly opinion is that what the Court giveth with one hand it taketh away with the other.  Having provided state constitutional protection at the “demand to stop” stage, the Court then says that it is ok to stop a person as to whom the police have no reasonable suspicion whatsoever, simply because he happens to be in the company of someone who they do have justification to temporarily detain.

To me, the decision is inconsistent with the notion that the state constitution provides greater protection than the Fourth Amendment.  Which is why, I suspect, Justices Eveleigh and McDonald dissented.

GIDEON:  I think you’ve hit it spot on, Dan. And in order to demonstrate the ills of permitting police such unchecked power, we need look no further than the events of the last week. Ferguson is showing us exactly why we need greater protections for individuals and less power in the hands of law enforcement. The reports coming out of Ferguson of “walking protests only” and the arrests of journalists represent a worst-case scenario for the abuse of the ‘detention of companions’ policy endorsed in Kelly.

Imagine a scene where an officer is arresting a person for whom he has suspicion. His companion starts recording the encounter. The officer, applying Kelly, detains the companion for officer safety and thus: 1) shuts down the recording, or 2) arrests the companion for interfering with an officer if he keeps recording.  Is this what we want?

And of course, we still haven’t touched on the fact that the court failed to define just what a companion is.

DAN:  I don’t want that!  I’ll let you have the last word this time.  I look forward to our next conversation!

The consequences of guilt by association: racial profiling and preventing videotaping

[This is my latest column for the CT Law Tribune, republished here because they’re stuck behind a paywall.]

In 1979, the United States Supreme Court in Ybarra v. Illinois held that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person”.

Indeed, it is one of the core requirements of the right to be free from unreasonable searches and seizures and also the right to expectation of privacy, that officers of the government need independent, particularized suspicion and cause as to the person they seek to search or detain.

In other words, if police want to stop you, they have to have some reasonable suspicion that you committed a crime or are in possession of a weapon. Even the watered-down “stop-and-frisk” standard of Terry v. Ohio required this ‘particularized’ suspicion:

The “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked.

There are several important reasons for this, stemming from the Founding Fathers’ strong dislike for a practice of the British crown at the time called ‘General Warrants’ or ‘Writs of Assistance’. As I’ve written here before,

these writs of assistance were permanent search warrants which decreed that any place could be searched at any time at the whim of the holder. The colonists’ hatred for these general writs gave birth to the Fourth Amendment and its mandate of specific, particularized warrants and its protection of papers and effects from search without probable cause.

Despite these specific, unambiguous protections afforded all citizens of the United States – and by extension the State of Connecticut – our state supreme court last week somehow managed to ensure that the conviction of one Jeremy Kelly remained intact.