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In these days of DNA, scientific and forensic evidence, it was bound to happen. As this very interesting (and lengthy) opinion from the California Supreme Court details, a “John Doe” warrant issued mere days before the statute of limitations was set to expire, identifying the defendant only by his DNA profile, satisfies the “particularity” requirement of the Fourth Amendment.

The DNA was taken from a crime scene (and victim) in 1994 and after the issuance of the warrant, a cold hit matched the profile to that of the defendant. Only problem is, the DNA taken from the defendant was in violation of then-existing CA law.

The defendant raised several challenges to the warrant: that since the DNA was taken in violation of the law, it was in violation of the 4th Amendment; that this triggered the exclusionary rule; and that the warrant was not specific enough because it was issued in the name of “John Doe”.

You can image the usual responses to such claims. The court relies on the abomination that is Virginia v. Moore to dispense with the first argument: that just because state law prohibits something, doesn’t mean it is a violation of the Fourth Amendment. The second is dealt with by regurgitating the very narrow reading of the exclusionary rule (and the third argument was just plain silly to begin with).

This shouldn’t be a problem anymore for most states, since the statute of limitations for all sex crimes is now one googol years (an actual number). But the case is a curious oddity nonetheless and it is my solemn sworn duty to bring this to your attention.

QED

It really grinds my gears when I hear lay people (read: tv and movie writers, newscasters, media, your mother, my mother) use the term technicality to describe a violation of some Constitutional right. As in: “The judge threw out the case because of a bad search or something”, “The guy kills a cop and he gets off on some technicality?” or “He was so guilty, but his lawyer got him off on some technicality”.

So here’s my proposal. Let’s start replacing real phrases for the meaningless and incendiary “technicality”. For example, a search that violates the 4th Amendment protection against unreasonable searches and seizures shall henceforth be called “police misconduct”.

A conviction that’s reversed because the prosecutor “forgot” to turn over potentially exculpatory information should be called “prosecutorial dishonesty”.

A case that’s dismissed for lack of probable cause should be called “fabrication of evidence” or “prosecutorial bloodlust”.

“The judge threw out the case because of police misconduct” sure has a better, more truthful ring to it.

Any more ideas?

Ordinarily, on a criminal law blog, the words “is different” would usually be preceded by the word “death” and an accompanying rant about the futility of the death penalty and the special standards to be applied in deciding whether a State should be in the killing business (I do not disappoint: see next post). However, today we learn that our esteemed Chief Justice uses another “d” word to finish that sentence: drunk driving.

In an odd little dissent from the denial of cert in Virginia v. Harris, Chief Justice Roberts essentially argues that anytime police receive an anonymous tip that someone is driving drunk and they find that person, they should be able to pull them over and conduct an investigatory stop.

The story in Harris essentially was that some woman called the cops refusing to give her name, but said that Harris was driving drunk in a green Altima and wearing a striped shirt. The police found a green Altima in the general vicinity of where she said it would be, and the license plate was “close enough” to the partial description she provided. Importantly, however, Harris did not commit any traffic violations (damn those pesky drunk drivers not providing any bases for a pretextual stop!), so when he pulled over to the side of the road, the cop followed suit and initiated a traffic stop. It is not clear why he pulled over (probably because he was drunk and saw a cop following him) or what the cop initiated a stop for (probably because he was a cop and he could). Anyway, Harris reeked and was arrested.

Not so fast, said the Virginia Supreme Court, relying on Florida v. J.L. SCOTUS, in its wisdom, determined less than a decade ago that anonymous tips, by themselves are worth diddly-squat:

An anonymous tip has a relatively low degree of reliability, requiring more information to sufficiently corroborate the information contained in the tip. See J.L., 529 U.S. at 270. “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’ ” J.L., 529 U.S. at 270 (quoting Alabama v. White, 496 U.S. at 329) (citation omitted).

The indicia of reliability of an anonymous tip may be bolstered when the tipster provides predictive information, which the police can use to test the tipster’s basis of knowledge and credibility.  However, for such predictive information to bolster the tipster’s basis of knowledge or credibility, the information must relate to the alleged criminal activity. Providing information observable or available to anyone is not predictive information and can only “help the police correctly identify the person whom the tipster [meant] to accuse.” J.L., 529 U.S. at 272. An anonymous call that provides no predictive information leaves the police without a means to test the tipster’s knowledge or credibility. J.L., 529 U.S. at 271.

And it makes perfect sense. if this were not the case, I could call the police and say I saw Scott walking down the street, carrying an AR-15 and a suitcase full of meth and he told me he was going to go rob some prosecutors. That’d be enough for them to arrest him. Now, I know he’s not actually doing any of those things, but he’d be harassed a bit. Chief Justice Roberts’ response to this, though, is that “drunk driving is different”. Okay, he didn’t actually use that pithy phrase, but that’s essentially what he thinks:

The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases. In a case like J. L., the police can often observe the subject of a tip and step in before actual harm occurs; with drunk driving, such a wait-and-see approach may prove fatal. Drunk driving is always dangerous, as it is occurring. This Court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances.

Riiight. So a cop who is following a driver based on an anonymous tip couldn’t pull him over if the driver was say…driving erratically? No, of course not. That would make too much sense. There’s definitely more harm there than, say, a drug deal gone bad. You know how those cops love to point out to juries that drug dealers are violent types known to carry guns.

I don’t know why he chose to dissent in this case, but one can suspect that perhaps his whole intention isn’t really to distinguish between drunk driving and other offenses, but rather to do away with that pesky J.L. case altogether.

Either way, good thing he was all alone in his dissent. Well, besides that MADD amicus brief, which I won’t link to because this is a respectable, family oriented blog.

And down the rabbit hole we go, with United States v. Comprehensive Drug Testing (aka the MLB steroid case). The decision brings fourth amendment and technology into version 2.0, otherwise called the digital age by essentially doing away with the plain view exception. This was issued a few days ago, but I’ve held off on posting about it mainly so I can get a sense of what the dense decision is all about. Instead, I just found myself reading the insightful posts and comments at Volokh, so that’s where I’ll direct you as well, after providing Judge Kozinski’s distillation of the holding:

When the government wishes to obtain a warrant to examine a computer hard drive or electronic storage medium in searching for certain incriminating files, or when a search for evidence could result in the seizure of a computer, see, e.g., United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), magistrate judges must be vigilant in observing the guidance we have set out throughout our opinion, which can be summed up as follows:
1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. See p. 11876 supra.
2. Segregation and redaction must be either done by specialized personnel or an independent third party. See pp. 11880-81 supra. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.
3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. See pp. 11877-78, 11886-87 supra.
4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. See pp. 11878, 11880-81 supra.
5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. See p. 11881-82 supra.

Here is the entire chain of posts and I’d make sure to read the comments too. And for those of you who didn’t get the title of this post, here’s the video. The 9th Circuit is Morpheus, the Fourth Amendment is Neo and US v. CDT is the red pill. Or something like that.

[youtube]http://www.youtube.com/watch?v=te6qG4yn-Ps[/youtube]

In what is overwhelmingly being described as a “rare” or “never thought I’d see it in my lifetime” move, SCOTUS yesterday effectively overruled lower courts’ incorrect interpretations of Belton v. New York in Arizona v. Gant and restricted the ability of police to search vehicles without reservation.

In an delightfully oddly split 5-4 decision, Justice Stevens (penning the majority) wrote that police could no longer search the interior of a car after the suspect had been secured. The rationale given by Courts (perhaps stemming from an inartful explanation in Belton itself) prior to Gant was that officer safety demanded that they be able to search the interior of a car – the so-called “wingspan”, once a lawful arrest had been made.

Stevens’ majority debunked that:

I’m awfully late to this dance, but as a criminal law blog, I might as well shut down completely if I don’t post about Herring. As you may be aware, this past week SCOTUS held in a 5-4 decision that mere negliglence doesn’t require the suppression of evidence obtained as a result of a 4th Amendment violation.

Some have called it the death of the exclusionary rule (or certainly the death knell) and others don’t think it’s such a big deal.

The underlying premise of this decision can be traced, in part, to the “good faith” exception enunciated in United States v. Leon. In Leon:

The justices held that evidence seized on the basis of a mistakenly issued search warrant could be introduced at trial. The exclusionary rule, argued the majority, is not a right but a remedy justified by its ability to deter illegal police conduct. In Leon, the costs of the exclusionary rule outweighed the benefits. The exclusionary rule is costly to society: Guilty defendants go unpunished and people lose respect for the law. The benefits of the exclusionary rule are uncertain: The rule cannot deter police in a case like Leon, where they act in good faith on a warrant issued by a judge.

Herring furthers that proposition by holding that mere negligence of a police department does not trigger the exlusionary rule and thus the evidence seized as a result of an arrest made based on a mistake should be admissible.

If you’re not from CT, you can weep now. Those of you in CT don’t have any reason to be particularly concerned about Herring. This is because, in CT, there is no “good faith exception” to the exclusionary rule.

One of the most common (and infuriating) responses to any indignation about the government’s surveillance and wiretapping programs is: “I’ve got nothing to hide, I don’t care”. A fundamental underpinning of this argument is that a little bit of intrusion protects our national security, so it’s okay.

I see similar arguments from those not of the criminal defense bent in regards to some basic Constiutional protections: “Well, if I’ve done nothing wrong, then why should it matter that the police didn’t have a warrant.” It underlines the notion that the Fourth Amendment is a “technicality”.

Only criminals need the protection of the 4th, because they have done something wrong or have some to hide. If they hadn’t, they wouldn’t be where they are in the first place.

It’s also why many wonder why there needs to be a criminal defense bar at all, or that hiring a lawyer is a sign of guilt.

Distraction?

Rear view mirror ornaments seem to be a big problem in Windham County, CT. Three months ago I wrote about a Superior Court decision from last December, in which the court found that C.G.S. 14-99f(c) permitted cops to pull drivers over because, well, the cop thought that the air freshener was obstructing the driver’s view. I thought it was a pretty bad decision at the time, and wrong on the law, and today I see that the Appellate Court sees this as an area of potential litigation.

In State v. Cyrus (a different case from the one I blogged about), the Appellate Court upheld the granting of a motion to suppress

She seems to keep getting smaller shedding weight, while I can’t drop a pound even after a 4-week starvation diet.

Let’s try a little game. I will give you the opening lines of a recent Connecticut Supreme Court decision [pdf] and you tell me (you can do this silently, sitting at your computer) what the outcome is. Ready?

The sole issue in this appeal is whether the Appellate Court properly concluded that the defendant, David Burroughs, was seized within the meaning of article first, §§ 71 and 9,2 of the Connecticut constitution when two uniformed, armed police officers exited their patrol car and approached his vehicle. The state appeals from the Appellate Court’s judgment, claiming that that court improperly reversed the trial court’s determination that the conduct of the officers did not amount to an unconstitutional seizure of the defendant. The state specifically argues that such conduct would not have caused a reasonable person in the defendant’s position to believe that he was not free to leave.

So. Raise your hands if you think the Appellate Court was wrong. Okay. You – the only one with the raised hand, there’s a job waiting for you at the State’s Attorney’s Office of Delusion.

The Court, naturally, finds that the Appellate Court was incorrect and that when two cops approach a stationary car – one from either side – a reasonable individual in that position would feel free to leave.

The car was parked in front of a private residence. At the time the cops got out of their police cruiser and began to approach the vehicle, there was no criminal activity and they had no R & AS. It was only when the approached an open window did they “smell” marijuana and the dance began. So it was essential to determine whether the defendant was “seized” when the cops began to approach his car.

The Court agreed with the State that there was “an insufficient show of authority” before the cops smelled the marijuana to constitute a seizure.

So, in essence, you’re free to go. Try it next time. I dare you.

This argument endorsed by the Court and proposed by the State is also rather troublesome. Consider the knowledgeable defendant who reads the Court’s decision and now knows that he is free to leave when cops approach his car. What is the natural reaction of “a reasonable person”? Drive away. This will lead to several things: cops and prosecutors putting forth the rather (dis)ingenuous argument that the act of driving away was sufficient to create reasonable suspicion and prosecutors relentlessly arguing consciousness of guilt. Of course, we can always argue that the defendant was merely exercising his Constitutional right to drive away, but that and a dollar will get you 50 cents.

Hidden in this reasoning is the disturbing notion of “if you’ve done nothing wrong, you’ve got no reason to run”, implying that anyone who drives off when a cop approaches has something to hide. Will that be enough, in future cases, to establish reasonable suspicion?

Officer: “Well, Mr. Prosecutor, when I approached the car, I was just trying to determine if the man needed help. But as soon as I started to approach, he put his car in gear and took off. In my training and experience, only criminals drive away from the police and based on my years in the force, I knew criminal activity was afoot. Why else would he drive away?”

The Court: “I find probable cause”.

The Supreme Court: “Affirmed”.

Someone please try this. I’m not brave enough.

After all that, we have a poll. Imagine you are legally parked by the side of a road. A police cruiser parks behind you and the officer disembarks and starts walking toward your vehicle. At that point, would you feel free to drive away?

[poll id="24"]

Grits for Breakfast points us to this important and disturbing story published in the L.A. Times a few days ago. It is a report on the murder of 16-year old Martha Puebla, whose name the police used while fabricating an identification.

They were trying to get her boyfriend for an unrelated murder and during their interrogation of him, they showed him a photo array (already a source of many problems) where they forged a circle around his picture with Martha’s initials and an “identification” beneath it.

To drive home his point, [police officer] Pinner laid down a “six-pack” — an array of mug shots that detectives often show to witnesses or victims of crimes. On it, [suspect] Ledesma’s photo was circled, and the initials “M.P.” were written below it. “Those is the guy that shot my friends boyfriend” was scrawled along the margin, followed by Puebla’s signature.

“I don’t even know a Martha,” Ledesma lied.

Police deceit during investigations and interrogations has long been tolerated (see, e.g. Illinios v. Perkins), but this may be one of those instances of the disconnect between theory and reality. In this case, it lead to Puebla’s death:

The next night, Ledesma reached for a pay phone outside his cell. “Cokester,” he said into the receiver, calling his friend Javier Covarrubias by one of his gang monikers, “do you know the slut that lives there by . . . my house? Her name starts with an M . . . I need her to disappear. She is dropping dimes.”

To the gang, Puebla was a snitch and needed to be dealt with.

“Uh huh, like that,” Ledesma told Covarrubias, using a mix of Spanish and English. “But [keep a] low-pro[file]. ..Stay on your toes, homie. And don’t get caught.”

Of course, this is also a product of the anti-snitching culture that has garnered much attention. But the fact remains that as a result of the deceit on the part of these law enforcement officers, a young girl is dead.

Cases like Illinois above have given cops free reign of the interrogation room – everyone’s heard of good cop, bad cop – and license to lie about almost anything, resulting in false confessions.

While I recognize the arguments supporting lying to suspects during interrogations, there has to be some sort of oversight and limits placed on the extent of permissible deceit. Certainly, endangering the life of someone who is innocent and whom the cops should know would be in danger of losing his/her life as a result of their lie should be outside those limits.

The responsibility of law enforcement is to protect citizens and ensure their safety, not to endanger them while engaged in a tunnel-visioned pursuit of “catching a criminal”.

So what is the line? When is deceit okay, if at all? Should it hinge on waiver of Miranda rights? I’ll expound on those thoughts in a later post.

photo credit: aslinth

Among the many discussions clogging the bandwith of the local listserve this week was one about the validity of a traffic stop based on the police officer’s observation of an air-freshener hanging from the rear-view mirror of a vehicle. (Yes, I recognize that what’s in the accompanying picture is anything but an air-freshener.)

There’s pretext and then there’s this.

The legislature in its infinite wisdom deemed it worthy to make it a traffic offense to have anything hanging from the rear-view mirror of a motor vehicle. Codified in C.G.S. 14-99f(c):

No article, device, sticker or ornament shall be attached or affixed to or hung on or in any motor vehicle in such a manner or location as to interfere with the operator’s unobstructed view of the highway or to distract the attention of the operator.

The underlying intentions in passing this statute remain shrouded in mystery, yet there should be none about its use by law enforcement as a tool in pulling motorists over.

First of all, the statute doesn’t mention whether the obstruction of the view of the operator is a subjective or objective standard. So, boys and girls, what does that mean? That means if anyone (read: police officers) thinks it is obstructing the view, then it is.

Second, having anything hanging from your rear view mirror is giving cops automatic license to pull you over. Take Mr. Gamache for instance. He had:

“a large cluster of air freshener ornaments hanging from the rearview mirror,” “three and a half to four inches tall and maybe an inch and a half or two inches wide” obstructing “the peripheral vision, especially”

The cop doesn’t pull him over, but follows him for about half a mile, until he pulls into the parking lot of a bar. There, he approaches and “immediately noticed a very strong odor of alcohol and observed that the defendant’s
eyes were glassy and bloodshot.”

Mr. Gamache is placed under arrest for DUI.

This is not just a CT phenomenon. From footnote 2 of the opinion:

The reported cases reflect the wide variety of such objects. United States v. Barragan, 379 F.3d 524 (8th Cir. 2004) (air freshener); United States v. Santiago, 310 F.3d 336 (5th Cir. 2002) (golf ball-sized spherical  crystals); United States v. King, 244 F.3d 736 (9th Cir. 2001) (parking placard); Moore v. Winer, 190 F.Sup.2d  804 (D.Md. 2002) (medic alert card); Duffey v. State, 741 So.2d 1192 (Fla. 4th DCA 1999) (dog tags); In re Jose Z., 116 Cal.App.4th 953, 10 Cal.Rptr.3d 842 (2004) (Mardi Gras-type beads); People v. Paxton, 255 Cal.App.2d 62, 62 Cal.Rptr. 770 (1967), overruled on other grounds by People v. Tribble, 4 Cal. 3d 826, 484 P.2d 589, 94 Cal.Rptr. 613 (1974) (St. Christopher medal); Thompson v. State, 399 A.2d 194 (Del. 1979) (graduation tassel); People v. Alvarez, 243 Ill.App.3d 933, 613 N.E.2d 290, 184 Ill. Dec. 263 (1993) (cross
hanging on a chain); People v. Mendoza, 234 Ill.App.3d 826, 599 N.E.2d 1375, 175 Ill. Dec. 361 (1992) (fuzzy dice); Commonwealth v. Murray, 27 Mass.App.Ct. 872, 545 N.E.2d 858 (1989) (garter belt); De La Beckwith v. State, 707 So .2d 547 (Miss. 1997) (Masonic emblem); State v. Harris, 839 S.W.2d 54 (Tenn. 1992) (handcuffs).

Most states, however, require that the item hanging from the rearview mirror cannot materially obstruct the view. CT, on the other hand, requires that the view be unobstructed. There is no materially obstruct requirement. Indeed, in Mr. Gamache’s case,

Officer Solak testified that the air freshener did not obstruct the driver’s view to the front or rear of the vehicle, he could reasonably conclude that the operator’s peripheral vision in the right-hand direction was obstructed. These circumstances provided Officer Solak with, at the very least, reasonable suspicion sufficient to briefly detain the defendant and investigate the suspected violation.

The court then goes on to recognize that these infractions could lead to a vast majority of the motor vehicles on the road being pulled over, just the same as cars going 66 miles per hour.

So, in essence, it acknowledges that this is a pretext, but says that’s okay, because technically it is a violation of a statute.

The advice, then, is to not have anything hanging from your rearview mirror, even if it is a parking permit or a handicapped permit. Because that may potentially somehow perhaps in the eye of maybe one overzealous cop be viewed as obstructing.

I’m all for people driving safely and obviously not while under the influence of drugs and/or alcohol. This, however, gives police the power to pull over just about anybody they choose even when there is no visible indicator of erratic driving.

This is a hunch in sheep’s clothing.

Apparently, Oregon is trying. The story goes thusly: Oregon sent a cease and desist letter to Justia and Public.Resource.Org. They claimed a copyright in the “arrangement and subject matter compilation of Oregon statutory law…” Thus, Oregon is asking these sites to take down the Oregon statutes they make available for free.

Most of the correspondence is available for view here. As Justia and P.R.O point out in this letter, the Oregon website is horribly W3C non-compliant (there are over 503,000 HTML errors!), is not “section 508” compliant, doesn’t use CSS (!!!) and even has a robots.txt file that blocks search engines!

How is that “accessible to the public”? The site lacks functionality and may not be accessible by all browsers and all operating systems.

So, what if a State decides to either charge for access to its statutes or makes it publicly available on a crappy website where not all can view the pages. Do we have a legitimate notice problem? I know we are all presumed to know the law, but if the State is charging for access to the actual text of the Statutes, or makes them difficult to access, what are the chances of successfully defending a prosecution on due process grounds?

Also, what the hell is wrong with Oregon? Why, in this day and age, would you be so stubborn and so stupid? What is really the point of “protecting” the Code? I don’t understand what they’re trying to accomplish, other than look foolish.

Anyway, anyone see a potential notice problem here?

H/T: HaveOpinionWillTravel

Do you have a reasonable expectation of privacy in your car, which you left unlocked in the parking lot of your place of business? Would police require a warrant to open the doors to your car and look inside? Assume nothing in plain sight.

Grits is all over the story that the search warrant and accompanying affidavit used to enter and search the polygamist compound headed by the now convicted Warren Jeffs may be illegal.

For starters, the initial warrant named the wrong person. Dale Barlow, the 50-year old man who an anonymous phone call accused of marrying and assaulting an underage girl. Barlow is actually on probation living in Arizona, says he’s never met the girl in question, and has not been arrested.

Indeed, they can’t even find the 16 year old girl who’s phone call set off the whole chain of events. None of the information on which authorities based the raid appears to have panned out. The error regarding Barlow in the warrant could easily wind up creating a “fruit of the poisonous tree” situation where none of the evidence from the compound searches can be used in court.

So if the first warrant targeted the wrong person, and the second, expanded warrant was based on observations from the first, I don’t see how these warrants stand up in court, though maybe some attorneys in the crowd have additional thoughts. Several criminal defense lawyers interviewed on CNN also questioned the breathtaking scope of the warrants.

As a commenter correctly points out, the exact scope of the warrants will need to be seen to determine if they are indeed illegal. Grits also raises another interesting issue about whether some of the laws the sect has been accused of violating were passed specifically as a challenge to their religious beliefs.

This Texas mess just got a lot more interesting.