Category Archives: ct state law

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.

Guilt by association and retconning reality

[This is going to be a lengthy post, so bear with me, but you must read it in its entirety. This has tremendous implications for those who are concerned about the imbalance of power in our society, especially when it comes to the ever-increasing encroachment of the government into our civil liberties and the already alarming abuse of power against minorities.]

I’m going to posit two scenarios. First, imagine you are walking down a public street with your friend. You’re both on your way to the local grocery store to buy some hummus. The police pull up, take a look at you friend and mistakenly believe that he’s a notorious wanted criminal. They order him to stop. You, not wanting to be caught up in this police business, keep walking, but they order you to stop, even though they don’t know you, don’t suspect you and you haven’t done anything wrong. You have rights, dammit and you know the Fourth Amendment. Can they stop you and force you to give up your freedom?

The second is this: what I’ve just described above is a version of the events that transpired. They’re “facts” in a sense that they’re your recitation of the events. But that’s obviously not good enough, right? There is another version – that of the police officers. So who gets to decide which is the “truth”? Which is believable and accurate and should be relied upon? Because – and this is critical – the law is entirely fact-dependent. How the law applies depends on the nuances of the factual scenarios. And that is left entirely up to the trial judge: the judge that hears the evidence from you and the police officers and then decides what “actually” happened. That’s called fact-finding and will only be overturned if “clearly erroneous”. Meaning almost never. There is a deified deference paid to the trial court’s “findings of fact”.

This is all important, as you will see in a second, because the Connecticut Supreme Court yesterday [PDF] in State v. Jeremy Kelly, in its ever expanding love-affair with convictions and a not-so-shocking-anymore disregard for Constitutional protections, engaged in some blatant retconning of “factual findings” with the help of the trial judge to ensure that the “facts” supported their interpretation which supported a conviction.

But first:

You can now be legally detained/seized/stopped on a street by police even if they have absolutely no reason to stop you.

As I wrote in my preview post and then the argument recap post, the police and the prosecution in the State of Connecticut were seeking extraordinary authority to detain/seize anyone lawfully walking down the street in a public place in Connecticut, if they believed that people in the vicinity may have committed a crime. One of the bulwarks of the Fourth Amendment protection is that the police need something called particularized suspicion, meaning that they need to have some evidence to believe that you have committed a crime in order to stop you.

This opinion does away with that. In fact, the police don’t even have to be correct about the person in your vicinity they are seeking to stop. In Kelly, the opinion at issue, they had the wrong guy they wanted to stop. In other words, they completely botched their job and as a result, we’ve all lost our ability to freely walk down the street without being forced to submit to police authority for no reason at all.

In some other countries, we call that martial law. In America, we call that officer safety.

I would encourage you to read the masterful dissent [PDF] that lays waste to all the majority’s purported “reasoning”. Here’s a sample:

I agree with the majority that the police have a legitimate interest in protecting themselves. There must be, however, some restrictions placed on the intent. In my view, there are several potential unconscionable ramifications to the majority opinion. For instance, if a suspect with an outstanding warrant is talking to his neighbor’s family near the property line, can the police now detain the entire family as part of the encounter with the suspect? If the suspect is waiting at a bus stop with six other strangers, can they all be detained? If the same suspect is observed leaving a house and stopped in the front yard, can the police now seize everyone in the house to ensure that no one will shoot them while they question the suspect? What if the suspect is detained in a neighborhood known to have a high incident of crime, can the police now seize everyone in the entire neighborhood to ensure their safety while they detain the suspect? There simply is no definition of who is a ‘‘companion’’ in the majority opinion. I would  require more than mere ‘‘guilt by association.’’ Ever mindful of Franklin’s admonition, we cannot use the omnipresent specter of safety as a guise to authorize government intrusion. Therefore, I respectfully dissent.

Oceania has always been at war with Eastasia

What problem is?

What problem is?

As mentioned above, one of the chief conceits in the legal system is that facts exist not as they are, but as a judge or jury finds them to be. This has great value in the way our system operates because it defines a universe according to rules of evidence and the primary goal is to ensure reliability.

In recent months, the Connecticut Supreme Court has shown a greater willingness, on appeal, to consider legal arguments that were not raised before. While this has raised some hackles, I generally view it as a good move.

Never before, in my opinion, however, has the Court engaged in retroactive fact-finding. So here’s the setup from the majority opinion:

The defendant next claims that the Appellate Court incorrectly concluded that the trial court properly had found that Detective Rivera and Lieutenant Angeles were justified in detaining the defendant because they had a reasonable concern for their safety. In support of this claim, the defendant asserts that the trial court’s conclusion was based on clearly erroneous factual findings and, further, that the Appellate Court ignored those erroneous findings and improperly upheld the trial court’s ruling on the basis of facts that the trial court never found.

In other words, the trial court, in finding the need for officer safety, relied on clearly erroneous fact A and then, the Appellate Court ignored the trial court’s error as to fact A and instead said that the trial court was correct because of fact B. The trial court had never explicitly considered fact B.

You will have guessed by now that both fact A and fact B support a conviction.

In support of the finding of officer safety, the trial judge found that the guy the police were looking for (who, of course, was neither of the guys stopped) had a felony warrant for possession of a firearm, and that’s it.

The Appellate Court found that the stop was justified because of the felony warrant for a firearm and credible evidence that the guy they were looking for was armed and dangerous, a fact omitted by the trial court.

The Supreme Court had to agree that the “felony possession of a firearm” factual finding was clearly erroneous because no witness testified as to those words. It was, in fact, a warrant for a violation of probation.

But here’s where it gets weird. After the case was argued in the Supreme Court, they send a letter to the trial judge and asked:

  1. Did you mean felony warrant for violation of probation?

  2. Did you consider the evidence that they received a tip that the guy was armed and dangerous?

The answers, of course, to both were yes, despite there being absolutely no evidence of that in the trial court’s ruling.

It is certainly very curious that the Supreme Court would take the extraordinary step of clarifying “factual findings” by the trial court in an effort to support the conviction, when the clear record below – the words said by the judge in open court – would support a reversal.

This is highly unusual and should trouble everyone. I’m not assuming that there was anything malicious about it – that would be ridiculous – but even with a benign intent to “get to the truth” or whatever you want to call it, giving a trial judge an opportunity to change his responses in order to conform them to what the Supreme Court is clearly looking for really undermines faith in the process and the system.

Where does it stop? Are facts only facts as long as they’re convenient? Are rights only rights as long as they don’t get in the way of governmental authority?

Oh, right.

Oceania has always been at war with Eastasia.

Connecticut still lacking in its treatment of children

My latest at the CT Law Tribune is up and it focuses on the disparate treatment of children when they come into contact with the criminal justice system and we suddenly treat them as the “other” criminal, and not the children that they are.

The column focuses on three areas of injustice:

1. The legislature’s failure to enact legislation in light of Miller v. Alabama that not only eliminates LWPOR as a mandatory punishment but also provides a second chance for all juvenile to demonstrate their rehabilitation.

2. The legislature’s completely blockheaded legislation of years past that vested only the prosecutor with the power to return cases to the juvenile docket and their seemingly oblivious decision to enact harsh mandatory-minimum sentences, which would then apply to these 14 year olds automatically transferred to adult court.

3. The legislature’s failure to correct an incongruence in the juvenile statutes that prohibits the use of statements taken from juveniles without parents or guardians present, but if the case gets transferred to adult court, then that very same statement is somehow now admissible as evidence of guilt.

And, as if on cue, here’s a great photo series in Time magazine focusing on the story of one family’s loss to juvenile incarceration.

The Unexamined Trial

A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.

So wrote Thomas Jefferson in 1774, foreshadowing his more famous quote about the “inherent and inalienable rights” of men, in the Declaration of Independence.

To me, what Jefferson meant by that is that we, as humans and citizens of a great free democracy have certain inherent rights that are ours by the very nature of our existence and these rights are not dependent upon the charity of ministers, politicians and judges.

Yet, for the most part, the realm of criminal law has continually drifted away from this Jeffersonian concept of “self-executing” rights and toward a more passive, dormant view of individual liberties and freedoms that need to be invoked to be awakened into performing their duties as our guardians. The right to remain silent now only applies if you break that silence and state out loud that you wish to remain quiet. The right to an attorney has to be unequivocally and explicitly invoked. The police cannot enter your home without a warrant except when they can and may do so even over your objection.

There is, then, a new generation of jurisprudence that has turned our jurists into something akin to DMV clerks whose primary function is to determine whether the forms have been filled out correctly.

But for those that don’t practice criminal law, let President Jefferson remind you why you should care:

What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals.

It is thus critical that each and every one of us is aware of the ministerial treatment given to our rights. And the primary way in which courts have done that is to make the defense attorney the steward of those rights and placed her in the driver’s seat.

Of course that makes sense, you will no doubt say. The attorney is in the best position to safeguard those rights and to make sure that they are exercised as needed. True, but when you change the very nature of the rights to make them not self-executing, but rather dormant, awaiting the utterance of an incantation by a defense attorney, is when you strip the judge of her traditional role of overseer of due process and justice and hand that responsibility to the defense attorney.  By shifting the responsibility of ensuring a fair trial to the defense attorney instead of the judge, you’re making jurists nothing more than glorified legal clerks.

Maybe now it’s clear that prisons aren’t the place for teenagers

20130410_jail__1

I suppose it takes a blatant misstep by a governmental agency to draw attention to any injustice and so it seems is the case with Jane Doe, the transgender self-identifying girl who has been transferred from DCF1 custody to the adult women’s prison by way of the men’s young-adult prison.

Don’t get me wrong, I’m glad that this attention is being paid to the state of our juvenile detention facilities, our prisons and their inadequacy in meeting the needs of troubled teenagers, but just remember as you read about Jane Doe and her predicament that there is probably no substantial difference between her story and that of hundreds of other teenagers in state custody other than her gender identity.

Her story, unfortunately for us in the business, is depressingly familiar:

[She] first entered [state care] at age 5 because her family members were incarcerated, sexually abusive or addicted to drugs.

Jane reports that by age 15, she had been raped dozens of times (including at facilities she was sent to live at by DCF), sold for sex, beaten up and addicted to crack cocaine.

Her behavior eventually turned violent, as chronicled by DCF, who reports that the teenager “has an extensive history of violence,” including stabbing a female peer with a fork, four assaults or threats of assault while in a pre-trial detention facility in Bridgeport, and 10 assaults on staff while at the state’s psychiatric center for children.

Another CT town will put cameras on its school buses

Apparently this is a thing. School buses are now mounting cameras on their outside to capture the license plates of cars that do not stop for the school bus.

Fine, but if you get a ticket, remember to read up on the law. For instance, revisit my post from 2008 in which I informed you that you don’t have to stop for a school bus that’s on the other side of a divided road.