Category Archives: fourth amendment

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.

—–

Fernandez v. California: remove the objector, won’t be no objection

What problem is?

What problem is?

I know that a majority of my readers are lawyers, but there are a fair number of you who aren’t and so from time to time I like to reproduce stirring pieces of legal opinions that explain so eloquently the protections that we have and the reasons we have them. The opening of Justice Ginsburg’s dissent yesterday in Fernandez v. California [PDF - pg 23 onwards] provides such an opportunity, so I reproduce a large quote from it:

The Fourth Amendment guarantees to the people “[t]he right … to be secure in their . . . houses . . . against unreasonable searches and seizures.” Warrants to search premises, the Amendment further instructs, shall issue only when authorized by a neutral magistrate upon a showing of “probable cause” to believe criminal activity has occurred or is afoot. This Court has read these complementary provisions to convey that, “whenever practicable, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, 392 U. S. 1, 20 (1968). The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police state where they are the law.” Johnson v. United States, 333 U. S. 10, 17 (1948)1. The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.” Mincey v. Arizona, 437 U. S. 385, 390 (1978).

In its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” Franks v. Delaware, 438 U. S. 154, 164 (1978). Reducing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied  premises is generally sufficient to justify a warrantless  search.” Ante, at 7. That declaration has it backwards, for consent searches themselves are a “‘jealously and carefully drawn’ exception” to “the Fourth Amendment rule  ordinarily prohibiting the warrantless entry of a person’s  house as unreasonable per se.” Randolph, 547 U. S., at 109 (quoting Jones v. United States, 357 U. S. 493, 499 (1958)). See also Jardines, 569 U. S., at ___ (slip op., at 4)  (“[W]hen it comes to the Fourth Amendment, the home is  first among equals. At the Amendment’s ‘very core’ stands   ‘the right of a man to retreat into his own home and there  be free from unreasonable governmental intrusion.’”); Payton v. New York, 445 U. S. 573, 585 (1980)(“[T]he physical entry of the home is the chief evil against which  . . . the Fourth Amendment is directed.”

That should explain to you that in our country, under our system of laws, there is nothing more sacred than the right to be left alone in one’s home and that there is an almost absolute prohibition on the police entering your home without a warrant. One of the exceptions to that rule is if you consent. If you give the police permission to enter, then they don’t need a warrant.

Things that are also good at stopping crime/terrorism

Stopping crime and/or terrorism is a noble, if unattainable goal. So it is with that in mind that the governments of various countries (most pertinently to this snarky post, the U.S. and now the U.K.) employ tactics such as the round-the-clock-surveillance of its citizens or collection of “metada” in bulk.

But these are only half-hearted measures. There are many, greater measures that would be infinitely more effective in stopping/preventing dastardly and nefarious acts.

First, though, let us set the ground rules for who is or is not a terrorist:

As gleaned by that, in light of yesterday’s revelations about Glenn Greenwald’s partner, it’s pretty clear that a terrorist or criminal is someone who is defined as such by the Government. When they make it a crime to be you, you will be a criminal, even if you were the same person as the day before the change in status.

So, dear criminal, let us count the ways the government is not extracting information from you, you evil scumbag who is here to hurt my precious children!

1. Detaining your loved ones and interrogating them for 9 hours under an “Anti-Terrorism” law. [Scott has more on this.]

2. Preventive detention: where we hold you in custody before you’ve committed a crime, because we want to prevent that crime, because you might be a criminal1.

3. General warrants [PDF]: This one, for you history buffs, dates from the time of Colonial America. Such an ancient ritual surely can’t be wrong! Broadly, the authority to search anything belonging to anyone they suspected of being, you know, someone they didn’t like.

4. Warrants with no standards: Here’s a clever way: require a warrant, but set the standard for getting that warrant so vague and nebulous that no one will ever know what doesn’t satisfy that standard, ergo the warrant is but a rubber stamp. Everyone start queing for the Government’s office to turn in your criminal papers.

5. No warrants: The above, but with less work. See also: NSA.

6. Waterboarding/torture/rack and pinion/Room 101: Because nothing prevents terrorism and crime than beating the shit out of someone to get them to confess to something they didn’t do.

7. Racial Profiling: Wouldn’t it be great if we could just tell who was a terrorist/criminal simply by looking at them? I like this one the best. Start with this and apply a healthy dose of the above and viola! No crime.

Why waste your time defending “secret FISA courts” and “Hey-that-guy’s-name-is-Miranda-is-he-a-journalist?” There’s plenty more out there to stand up for! The rights of your Government to eviscerate every modicum of freedom and privacy have not been adequately defended yet. They’re doing so much more.

If you don’t, that makes you a terrorist, right?

 

Discombobulation roundup

obama-email-spying-meme

You must’ve heard by now about the Stop and Frisk decision and about President Obama’s press conference about something to do with reading your uncle’s spam emails to you. As you can see, there’s a common theme in the reactions of Messrs. Bloomberg and Obama. When politicians start to dissemble and resort to treating the public like idiots, you know the sh*t has hit the fan. Since you don’t really need my voice to add to the predictable reactions from those with my bent, I will instead do you a public service and compile a list of opinion and criticism pieces I think you should read:

Parallel Construction: the government lies

[Update: Oh, look. There's more. "NSA handing over non-terror intelligence.]

Reuters reports this morning that a government agency is using secret tactics to arrest Americans and then fabricating just how they got about doing so. Called SOD, short for “sod-off, you nosey bugger” 1, this DEA program basically uses all sorts of secret NSA type wiretaps, foreign intelligence surveillance, informants and phone records to stop global terrorism, catch murderers, solve global warming, I dunno, do something with drugs? Arrest those that import them or something I guess? Whatever.

And as is required for governmental agencies in this post-Communist era, everything it does is secret. Oh, and it lies.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin – not only from defense lawyers but also sometimes from prosecutors and judges.

Go on…

Martin, Zimmerman and the colors of injustice

This is not a Trayvon Martin post; this is not a George Zimmerman post. For that, go read these fine pieces with which I wholeheartedly agree.

This isn’t even a post about race, although race certainly fuels much of it.

This is a post about injustice. Injustice doesn’t come in one shape: the acquittal of a seemingly obviously guilty white-ish man for murdering a black teenager. Injustice comes in many stripes, shades and hues. Injustice is smaller than the Zimmerman acquittal and greater than it too. Injustice happens every day before your eyes, but you don’t see it.

Injustice is Warren Hill. In 2002, the United States Supreme Court said it was unconstitutional to kill mentally retarded people. Georgia is a part of the United States. Warren Hill is a prisoner in the State of Georgia. Warren Hill is mentally retarded. His experts agree. The State’s experts agree. Yet Warren Hill is scheduled to die tomorrow. A mentally retarded man, in direct contravention to the Constitution of the United States. Because it’s Georgia and Georgia does what it wants.

Injustice is the hundreds of thousand of black men who went to jail for years longer than their white counterparts because of an imaginary crack-cocaine disparity.

Injustice is when children like Trayvon Martin or younger are arrested and treated as adults by a harsh, unrepentant adult criminal system, sending them to jail automatically for a decade or more.

Injustice isn’t at the fringes of the criminal justice system; it isn’t in the extreme corners and reaches, rearing its head every 6 months or so for you to vent your moral outrage at.

Injustice happens to the wrongfully convicted, like Ronald Cotton or James Tillman or Miguel Roman or the hundreds of others who were convicted by duly sworn juries just doing their jobs.

Injustice is every day. Injustice happens like a death by thousand cuts. Injustice happens to the guilty and the innocent. And every injustice to the guilty is injustice to the innocent.

Injustice is when we spend millions of dollars to fund police and prisons and prosecutors and our legislators increase the number of crimes and multiply the punishment without nary a thought to covering the costs of defense. Injustice is when your rights are in the hands of underpaid, overworked lawyers who are doing their best but are overwhelmed by an overwhelming system. Injustice is when “tough on crime” trumps the promise of equality in access to justice.

Injustice is when prosecutors get to decide what to turn over and what not to. Injustice is when they don’t turn over evidence proving innocence. Injustice is when the courts protect their illegal and unethical ways.

Injustice is when the police department in New York has a policy of stopping every minority and “frisking them”, because they were “wearing clothes commonly used in a crime“. Injustice is when the police department wants the power to stop anyone on the street, for any reason, in violation of the Fourth Amendment.

Injustice is when “technicalities” are used to deny people their appeals, to forcibly impose convictions no matter the Constitutional violations or error. Injustice is when we elevate form over substance, format and rules over rights and freedoms. Injustice is when you punish people for exercising their rights.

Injustice is when they use fear to scare you into giving up your rights, telling you tales of the terrorist or the criminal whom you must punish.

Injustice is when you believe that you have nothing in common with the individual subjected to the full force of the government’s ire. Injustice is when you believe that you will never be a persecuted minority. Injustice is when you believe that you have nothing to hide, so you don’t say a word when they illegally look inside my house.

Injustice is when you pay attention when the media tells you to and you stop thinking for yourself. Injustice is when you go into court, predisposed to convict.

Injustice is when you think justice only applies to the innocent or the likeable. Injustice is when you decide that one set of rules apply to you and another set of rules to those that you don’t like. Injustice comes in a dazzling array of colors. Do you have the courage to not be afraid anymore?

Can you stop being colorblind to injustice?