Category Archives: fourth amendment

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.

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.

Should I Wurie about my cell phone or is there no need to get Riled up?

I don’t want to hear anything about the “puns” in the title. Just shut it.

As you’re no doubt aware, the Supreme Court of the United States heard argument yesterday in two cases, Riley v. California [PDF] and United States v. Wurie [PDF].

As I wrote about extensively in this March 28th column in the Connecticut Law Tribune, the issue in these two cases is under what circumstances can police search the contents of your cell phone after they arrest you and what is the extent of those searches.

We’d all feared what a disaster the oral argument might turn out to be, given that the Court is made up of all really old people. Well, we need to put that aside because the Court came prepared. Aside from one really bizarre exchange about phone encryption, they were mostly spot on about the phone, the amount of content the phones have and the potential for danger if they permitted a blanket rule allowing searches.

When everyone is a criminal, you don’t need the Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment to the Constitution of the United States. By now, it should be painfully obvious that the Fourth Amendment doesn’t apply to anyone, because there are no more “people” left in the United States, only criminals and potential criminals. Our government spies on us willy-nilly, our legislators erode our rights on a daily basis under the banner of protecting the children and our courts continually perpetuate the notion that there are two groups in the US: “us” and “them”. It is also becoming increasingly clear that “us” refers only to law enforcement and “them” is anyone else.

Yesterday, in Navarette v. California [PDF], Justice Thomas wrote a 5-4 decision in which he upheld a police officer pulling over a car and then finding marijuana.

Now, as Popehat explains, the law before Navarette was as follows:

Grand juries, search warrants, revenge porn – oh, my, or: today at the legislature

For a short session of the legislature, there sure have been a large number of criminal justice bills already raised and considered by some committees. Today is no different, with a large number of “groundbreaking” bills being considered by the Judiciary committee. The public defender’s office and the CT Criminal Defense Lawyers Association have submitted written testimony on some or all of these bills1. What follows is what my testimony would be if they’d let me into the Capitol after that one time with the monkey and the backscratcher.

The Investigative Subpoena One Person Grand Jury Reform Bill

S.B. No. 488 (RAISED) AN ACT CONCERNING GRAND JURY REFORM. (JUD)

A perennial favorite of prosecutors, this bill has made its way back to the legislature. Year after year they bring up this bill, seeking to give themselves the power to just subpoena whoever and whatever to their office to conduct their investigations. Year after year this bill is defeated. But you gotta hand it to them, they keep trying.

And this iteration is slightly different. Instead of seeking to give themselves the power, they vest it in a “one person grand jury” – the presiding judge of the judicial district courthouse.

The rest of the shit is the same. As I wrote extensively last year, their standard for issuing subpeonas is the lowest, most nebulous, undefined piece of nonsense I’ve ever seen: the interests of justice.

What does that mean? Nothing. It’s not a real thing. It’s a free pass. The bill explicitly removes a requirement of probable cause and replaces it with this interest of justice nonsense.

What’s worse is that there’s no limitation on when the investigative grand jury can be used. Under the law as it existed, the State’s Attorney had to make a showing that they’d made an effort using normal investigative tools. They have to show that their regular methods weren’t working and they needed this invasive tool to make one last ditch effort at cracking a case. If they hadn’t tried their normal methods, they had to include a statement saying why. In other words, accountability.

This proposal does away with that and replaces it with the sort of investigative subpoenas that are coercive and dangerous.

But go ahead, keep trusting the State to do its business in secret. That’s never backfired on us.

george-costanza-couch

The “revenge porn” bill

S.B. No. 489 (RAISED) AN ACT CONCERNING UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE OF ANOTHER PERSON. (JUD)

This is the bill that seeks to specifically criminalize the act of taking a nude photograph of a person who you were once intimate with and distributing that photograph on the internet without their permission.

Let’s be clear: it’s a totally douchey thing to do. It’s violative of someone’s trust and makes you out to be a complete asshole.

But is it a crime? Should it be a crime? Can it be a crime? These are the important questions.

As I understand it (and you really should read this post by Mark Bennett for a complete deconstruction of its unconstitutionality), a picture is speech. So when a picture is made public and the government seeks to put restrictions on it, it becomes a question of the Freedom of Speech which implicates the First Amendment.

As Mark explains, the bills don’t seek to criminalize all pictures posted, only pictures posted that meet certain criteria: nudity, non-consensual.

That’s a content-based restriction: you’re restricting speech based on the content of it. For example, in 2010 in U.S. v. Stevens, the Supreme Court refused to find that “crush videos”2 were illegal.

But let us assume, for the purposes of this post, that “revenge porn” should and can be criminalized.3 What would a bill look like? CT’s proposal is:

(a) A person is guilty of unlawful dissemination of an intimate image when, with the intent to harass, annoy, alarm or terrorize another person, such person electronically disseminates, without the consent of such other person, a photograph, film, videotape or other recorded image of (1) the genitals, pubic area or buttocks of such other person, or the breast of such other person who is female with less than a fully opaque covering of any portion of such breast below the top of the nipple, or (2) such other person engaged in sexual intercourse, as defined in section 53a-193 of the general statutes.

I’m just going to list the problems with this in bullet format, because it’ll be easier:

  • The “Intent to annoy” language. That’s exceedingly vague and a terribly low standard that’s so variable dependent on the person being so “annoyed”. Your face is annoying to me. Are you a criminal now?
  • “Electronically disseminates”. The bill seeks to criminalize electronic dissemination but nowhere defines that. What if I show the picture to my dying brother in the hospital room? What if I post it on a flyer on a lamppost outside my house?
  • “The genitals, pubic area or buttocks” apparently don’t need to be naked. So I can take a picture of your fat ass as you bend over to pick up a McFry and put it on the internet and now I have to go to jail because you have low self-esteem.
  • This might already exist. Here’s “Breach of Peace in the 2nd Degree“, which states, in relevant part: (a) A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person. Doesn’t that hit every note on the revenge porn bill? Why do we need a separate one again?4

The Search Warrant That Tracks Your Movement and Gets Your Email and Social Media

H.B. No. 5587 (RAISED) AN ACT CONCERNING SEARCH WARRANTS. (JUD)

It’s innocuously named, but it covers a wide swathe and is important also for what it doesn’t cover. Primarily, the bill purports to bring into line our statutes to comply with two cases: U.S. v. Jones (the GPS case) and State v. Esarey (a case about out of state warrants for email). Also, this bill has nothing to do with the scope of search warrants for the search of your cell phone. That’s the subject of an upcoming column.

As for the GPS. the bill states that police can seek a warrant if they believe that “probable cause to believe that a criminal offense has been, is being, or will be committed and that the use of a tracking device will yield evidence of the commission of that offense”.

So almost immediately we hit upon the first problem: how will a tracking device provide evidence of a crime that has already been committed? Because the warrant seeks to authorize the attachment of a device that tracks the movement of a person or object. So unless that movement in the future (for up to 30 days – another problem with the length of time) corroborates a crime in the past, I see that portion as problematic.

Next, the scope. As it currently stands, there is no limitation on the scope of the data collected and what it can be used for. For example, if the warrant states that the data is being sought to prosecute a high-level drug trafficker and the data shows that the suspect was at the residence of his girlfriend, who has a protective order against him, can the information be used to prosecute him for that? Just like warrants for the searches of homes are very specific as to what can be sought and seized, so should any warrant for this “tracking data”.

If not, doesn’t it become closer to those general warrants the founding fathers of our country so hated?

Speaking of general warrants, the other part of the bill that seeks to address State v. Esarey also succumbs to the same problem. The section incorporates the warrant requirement discussed above and applies it to out of state providers of data “or business entity that provides electronic communication services or remote computing services to the public”. In other words, your email providers and Facebook and Twitter.

Now imagine that: the police believe that you are about to commit a crime, so they get a judge to issue a warrant for your emails. As we’ve already discussed above, with a lack of particularity requirement in the statute, they get everything. EVERYTHING. All your emails.

Who’s to say they can’t read your emails and go on fishing expeditions to find other things that may be evidence of other crimes? Who’s to say they can read your emails and try to find crimes to fit what they see?

Worse, notice isn’t immediate, so you can’t move to quash the subpoena in time or file a motion seeking to limit its scope. The statute says that they have to let you know within 48 hours, but the company has only 5 days to provide all that data. There’s no provision that says they have to turn over the data unless there’s a motion to quash filed.

The Wiretapping/Eavesdropping Bills

S.B. No. 487 (RAISED) AN ACT CONCERNING THE RECORDING OF TELEPHONIC COMMUNICATIONS. (JUD)

This is one strange bill. Not by itself. By itself it’s a “revision” to the eavesdropping statute. It states that no one shall record a private telephonic conversation without alerting the other party in various ways and obtaining that party’s consent. It then lays out various exceptions, including ones for law enforcement and:

(4) Any party who records a telephonic communication, provided the intent of the recording is to memorialize evidence of a crime before, during or after the fact and the unaltered and undisclosed recording must have been submitted to law enforcement within a reasonable amount of time;

One of the exceptions is also the corporation that provides these telephone services as defined in C.G.S. 53a-187(a)(1). This is important when you combine this bill with the next; it becomes a little confusing as to its purpose.

H.B. No. 5585 (RAISED) AN ACT CONCERNING SURVEILLANCE OF CELL PHONE COMMUNICATION BY LAW ENFORCEMENT OFFICIALS. (JUD)

Remember that 53a-187 I just cited above? This one makes changes to that bill. And the change is good, but it’s still a bit confusing in context. The change essentially is that the exception to unlawful wiretapping doesn’t apply to law enforcement acting in the scope of their duties. “Scope of their duties” is amended to now include:

when such official (1) has probable cause to believe that the cellular radio telephone has been used in furtherance of the commission of a crime and has obtained a search warrant that authorizes wiretapping of the cellular radio telephone, or (2) is otherwise authorized by state or federal law to engage in wiretapping of the cellular radio telephone.

There is, of course, already a whole set of wiretapping statutes (54-41a-41u) which aren’t mentioned anywhere.

So I’m confused. Why did we need the previous bill? What does this do? What do any of them do to the actual wiretapping statute?

More importantly, why was this necessary? What are we trying to fix? Is there a problem of law enforcement listening to conversations without warrants and/or PC and if so, why haven’t we heard about it?

Now you know. Call your legislator.

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