You can thank me later.

While consent in rape law has evolved to adopt a more subjective view, consent in 4th amendment law has devolved, going backward to a more objective view. A new paper (pdf) (SSRN) examines this phenomenon and argues that courts should look to sexual assault consent in determining whether an individual “consented” in the 4th amendment context:

As this article shows, there are many parallels to be drawn between rape and Fourth Amendment consent law. Although both claim to protect the dignity of choice, like rape law, the Fourth Amendment fails to ask if a subject wishes to be seized or touched, focusing instead on the amount of force and coercion used by the police. Also like rape law, the Fourth Amendment fails to recognize that subtle forms of coercion are incompatible with true consent. Both Fourth Amendment and rape law blame subjects who submit to subtle coercion, telling them they had a choice. Just as rape victims were told they asked for it by wearing short dresses and not screaming for help, individuals are told they asked for it by extending their arms to be searched.

It is a fascinating subject and something that I hadn’t given much thought to prior to reading this paper. Consider that in almost all 4th amendment cases, whether a defendant consented is usually decided in light of the force used by the police in conducting the search: if a squad of police cars surrounds the defendant, with guns drawn and then asks him for “consent”, a court is more likely to conclude that a reasonable person did not feel free to decline consent. Whereas if it is a single officer, who pulls over a car and then orders the defendant out and then asks for “consent”, a court is more likely to conclude that a reasonable person would have felt free to decline the search. 4th Amendment law turns a blind eye to the reality that is acknowledged in the sex assault area that the will to refuse is often overborne by a subtle show of force or authority.

One way to interpret Schneckloth‘s focus on congeniality is that it creates a de facto force requirement. If officers fail to use actual force or threat of force to prove nonconsent, consent will be presumed from mere cooperation. Importing Schneckloth into a sexual assault context, how would a judge analyze a situation where a man admits he detained a woman for twenty minutes against her will, but testified that it was all congenial when he asked her for sex? While a common law judge might rule that the man must be acquitted because the force requirement was not met, one would hope that a modern judge would rule in favor of the victim.

…

As the literature explains, there are many reasons why civilians approached by the police might feel coerced into saying yes when they mean no. The role the police officer’s badge plays in obtaining obedience, as Nadler states, “should not be underestimated.” As Raymond shows, “a failure to cooperate often carries with it significant consequences: seizure, arrest, and charge and conviction of a crime stemming from the failure to cooperate.” Once we notice the race of the participants instead of erasing race, the racial dynamic of coercion becomes evident. Civilians know that police have the awesome power to detain, to search, and to arrest. Civilians also recognize that police have wide discretion in exercising this power. What people do not know is how any particular officer is going to exercise his discretion. While people know the reason the officer approaches probably has to do with investigating crime, civilians would not know what reasons the officer has for the stop, or whether he has sufficient evidence (either true or false) that would permit him to arrest. Moreover, they do not know what will trigger an officer’s anger and so do not know what behaviors to avoid to prevent themselves from becoming the subject of unpleasant attention or worse. Also unknown is whether the officer harbors any personal prejudices that might operate against the people stopped. Depending upon one’s class, race, and community, some civilians encountering the police may fear a long delay or a ticket, while others fear “physical violence, arrest, or both.”

Bumper v. North Carolina‘s admonition that “the government cannot prove that the consent was, in fact, freely and voluntarily given . . . by showing no more than acquiescence to a claim of lawful authority” seems to be all but forgotten.

All the criticisms of 4th amendment law laid out in this paper will be nothing new to criminal defense attorneys. I’m not sure that there exists a way to actually refuse to consent and walk away without further law enforcement intervention. Because on the flip side, courts have held that no innocent person would refuse a consent to search and thus the refusal can play a role in the officer’s determination of reasonable suspicion or probable cause, permitting the officer to detain or arrest the individual.

It is this “criminal’s perspective” view of consent in the 4th amendment arena that must be changed. Until courts start recognizing and acknowledging that the Constitutional rights of individuals apply to all, regardless of guilt or innocence, we will never see an honest decision.

Two common law doctrines that most infuriated feminist rape theorists were force and resistance, requirements that cut against the subjective inquiry of whether a woman wished to have sexual intercourse. This article has shown that Fourth Amendment doctrine has come to embrace similar force and resistance requirements in suppression law. If police convince a court that a suspect submitted rather than resisted, then the court will inquire into the amount of force used by the police to obtain the suspect’s cooperation rather than determining if the search was against the will of the person searched. Just as traditional rape law was generally a normative question of male force, placing “the level of acceptable force starting just above the level set by what is seen as normal male sexual behavior,” search law has become a normative question of whether police used undue force to obtain cooperation. Currently, Fourth Amendment consent doctrine is totally divorced from a subjective inquiry that determines what the search victim wanted. This leaves people like the driver and passenger in Crash vulnerable to police who are no longer constrained by the Fourth Amendment as long as such police know how to obtain “consent” by methods acceptable to courts. The current doctrine does not give “weight and dignity” to the “concept of agreement and consent.”

I should just stop writing and let you all go read this excellent paper.

H/T: EvidenceProf

turn left and go directly to jail

Over 4 years ago, a police officer received an anonymous tip that Gregory Cyrus was driving home drunk. The officer followed Mr. Cyrus, but didn’t observe him driving erratically, which is a feat in of itself given the bullshit usually spewed to justify a stop. Armed with a solid anonymous tip, Mr. Police Officer was at a loss. How was he to stop and arrest this man when he wouldn’t oblige and cross a single yellow line? And then it hit him. He saw Mr. Cyrus driving with what looked like a crucifix hanging from his rear view mirror. “Aha!”, he thought to himself, “I’ve got you now, you-person-who-must-be-drunk-because-someone-told-me-so-and-not-because-I-observed-anything!”

Relying on C.G.S. 14-99(f), the trooper pulled Mr. Cyrus over and arrested him for drunken driving. “Wait, just one Constitutional second!”, said Mr. Cyrus (through his lawyers). “You didn’t have reasonable and articuble artilicuable articulable suspicion to stop me, pursuant to the remnants of Terry v. Ohio!”

A learned trial judge agreed and a former supreme court chief justice reaffirmed that decision. But in the fair not-so-Constitution-al-State (okay, I’ll stop with the hyphenation), a win for the rights of each individual is rarely safe, as there looms the spectre of an almost automatic reversal from the law and order state Supreme Court.

Not today. Not this time. In a split 4-3 decision (more on that in a bit), the highest court of the State upheld the trial and appellate courts, based essentially on one simple proposition: that a stop cannot be based on a hypothetical:

The trial court recognized that there must be more than a hypothetical possibility that the driver’s vision would be obstructed or that he would be distracted  to constitute a violation of § 14-99f (c). [Trooper] Mattioli had to have reasonably believed that the statute was being violated or was about to be violated,  and he must have been able to articulate this reasonable belief to the court. It would have been improper to conclude that Mattioli reasonably suspected  that the chain and cross hanging from the defendant’s rearview mirror was in violation of § 14-99f (c) without regard to whether there was a factual basis  for Mattioli to conclude that the defendant’s field of vision appeared to be obstructed or that the defendant appeared to be distracted by the hanging  object.

It’s important to be clear, though: the court’s holding is that it is not a violation of the statute to merely hang an object from the rear-view mirror, or from any place on a windshield. What is illegal is to be distracted by that object, and it doesn’t matter whether you were actually distracted, but that you could be distracted. In the instant case, there was no evidence as to any of the latter and so the dismissal was the right decision.

In doing so, the court rejected the dangerous rationale put forth by the State and the dissent, that the mere possibility that an object could distract itself serves as reasonable and articulable suspicion to pull someone over for a motor vehicle infraction. In essence the dissent, penned by now-retired Justice Vertefeuille (who also penned the shockingly bold State v. Snelgrove which abandoned all pretense that propensity evidence is allowed in sex assault cases), essentially seeks to do the same here, by jurisprudentially permitting pretextual stops (despite footnote 10 which claims to the contrary). Take a look at this language:

As a result, I would conclude that it was reasonable for Mattioli to suspect that the chain could swing into the defendant’s view, thereby causing an  obstruction to the defendant’s view, or distracting the defendant’s attention with its movement. Accordingly, I would conclude that Mattioli had a reasonable and articulable suspicion that the defendant possibly was violating § 14-99f (c) at the time when the trooper stopped the defendant’s vehicle  and that Mattioli could justifiably execute a Terry stop to investigate whether the object did, in fact, interfere with the defendant’s unobstructed view or distract his attention.

Saying that the possibility that an object could distract is saying that an object could distract. Which is saying that it is illegal to have an object hanging from the rear-view mirror or the windshield, which would be exactly contrary to the statute in question.

Anything could give rise to the suspicion that an object might be obstructing or distracting a driver. A GPS device, a handicapped sticker, a parking lot pass, an EZ pass device, an emissions sticker. Do any of these reasonably obstruct a person’s ability to drive? Possibly. But to give carte blanche to the police to pull over any car that has such an object is to condone pretextual stops. And no matter how many times the dissent protests or tries to make it look like it wouldn’t be a pretextual stop, it really would be.

If the dissent had its way, everyone would be stopped. But then again, if you are white haven’t done anything wrong, you don’t have to worry about being hassled by cops, right?

It may be cynical of me to say this, but I believe a major factor in the majority deciding the case the way they did was the relatability of the facts in question: from what I’ve heard of oral argument in this case, several justices joked about the fact that they’ve got objects hanging from their mirrors. It was this familiarity with the realities of driving and normal behavior among a class they could identify with (drivers) that perhaps helped put things in perspective for them. Compare that with the decisions that impact “high crime neighborhoods” and the disjunction between the removed ivory-tower existence of jurists and the realities of every day life are clear. Perhaps this is why we should have justices interpreting our laws who not only are brilliant, but also attuned to the realities of day-to-day life of those who may not be as privileged and fortunate as them.

But I digress. Go forth and hang that awful air-freshener from your rear view mirror. Just don’t look like you’re distracted. Oh, and leave the pot at home.

Some more pics, for the heck of it:

EZ Pass image courtesy.

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.

4th

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

5th

These are the rights of individuals – all individuals and checks against the power of the large governmental entities. The Constitution drew a line and on the site that was protected were placed the flesh and blood individuals, the citizenry and on the side that was being warned and whose authority was being severely limited was the abstract, nameless, faceless Government.

What a beautiful concept: we are individuals first and as individuals, we have rights that will not be subordinate to those of an ever-changing abstract concept.

The concept is dying a quick and painful death. It took only 200 odd years for the pendulum to have shifted completely in the opposite direction. By attrition, or force of sensationalism, or crowdsourced fear, the line drawn by the Constitution has turned around and is now facing those very individuals it sought to protect. The idea of individual liberties is so foreign to most, that comes as a surprise to many that the founders fought and fought hard for them.

These protections and rights exist merely as a thorn in the side of the righteous who seek to punish the evil. US vs. criminals. Speeding this disaster is the learned hand of those who are in charge of interpreting and enforcing the august protections enumerated and implied by the Great Document.

Jurisprudence, over the years, has taken an increasingly narrow approach to individuals’ rights, especially those charged and convicted of criminal offenses. The scope of acceptable intrusion by the Government has increased dramatically over the years and the zone of protection surrounding each individual and his possessions has correspondingly narrowed.

Cops want to use collective knowledge to deem that someone carrying two cell phones is a drug dealer and thus about to embark on a baby-killing spree? Allowed. Cops want to use lies and trickery to trap individuals into confessing to things they may or may not have done? Allowed. Prosecutors make impermissible remarks to juries and comment on a defendant’s exercise of his rights? Frowned upon, but the guy was guilty as sin anyway, so it doesn’t matter.

I fear that if one were to embark on the task of writing a book that enumerated the remaining fundamental protections, it may be just long enough to fill Twitter’s 140 character requirement. The Twitstitution.

Really, what 4th amendment rights does one have anymore? Police have to get a warrant? Well, not always. And even in cases where they really should have, it’s mostly okay. What if the prosecutor circumvents the probable cause requirement and adds charges later that aren’t supported by the evidence? Too bad, prove it at trial.

The role of the defense lawyer has gone from Constitutional law expert to mitigation specialist. Cases are won and lost on the facts, not the law. The law is dead to us. A lifeless corpse that taunts us and obstructs us in our efforts to keep the Govermental power in check. There is no longer any confidence backing up an assertion that an act by the police is “clearly illegal”. Frankly, there is no such thing anymore. Courts will find a way to condone whatever improper action we complain about.

“But he’s only 16, judge”, “he didn’t really threaten the use of a gun”, “he’s only doing this because he has a massive drug problem”.

Go to any court and sit in on any pre-trial negotiation and you’ll hear most, if not all defense lawyers use variations of the above. Mitigation specialists.

That’s the only thing left to us: harkening back to the very individuality that the Constitution sought to protect. Each person is an individual, but instead of talking in terms of protection, we now speak of punishment. Each individual is different and must be punished differently.

Guilt upon arrest is but a foregone conclusion. All that remains to be determined is the term. We don’t practice law anymore; there is nothing noble left. We mitigate.

The law is dead and slowly, it’s killing us all too.

[W]hen the Fourth Amendment demands a factual showing sufficient to comprise `probable cause,’ the obvious assumption is that there will be a truthful showing” (emphasis in original). This does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.

Justice Blackmun, in Franks v. Delaware, quoting Judge Frankel in US v. Halsey. Franks, of course, permits a defendant to challenge the veracity of the statements in a search warrant. If he makes a substantial showing that the affidavit contains intentional falsehoods or material omissions, then he gets an evidentiary hearing to prove..umm..that there are falsehood or misrepresentations or omissions in the affidavit.

But Franks applies only to search warrants. What of the scenario where the officer intentionally lies to get a judge to sign a warrant for an arrest? There has to be judicial review of an arrest warrant and a finding of probable cause. But since we know officers lie, what if an officer lied to get a person arrested? Is there any remedy for that? I’ve been asked this question more than a few times over the last month and was a topic of discussion on the local listserve today, so I figure it’s about time I write a post on it.

There is a remedy, sort of. It’s more of a hollow remedy. In State v. Dolphin, the Connecticut supreme court, without explicitly stating so, applied the Franks analysis to an arrest warrant. As with the search warrant, a defendant attacking the validity of an arrest warrant must prove by a preponderance of the evidence that the falsehoods contained in the warrant, or the material omissions would defeat probable cause:

When reviewing whether a Franks hearing is warranted, we recognize that there is a “longstanding rule that there is an underlying presumption of validity with respect to the affidavit supporting a warrant.” State v. Dolphin, 195 Conn. 444, 457 (1985). In order for a defendant to challenge the truthfulness of an affidavit underlying a warrant at a Franks hearing, he must: (1) make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit”; and (2) show that the allegedly false statement is necessary to a finding of probable cause. Franks v. Delaware, supra, 155-56. If the allegedly false statement is set aside, however, and there remains sufficient evidence to establish probable cause, a Franks hearing is not necessary. Id., 171-72. Although the Franks decision referred only to false statements in the affidavit, we have held that “material omissions from such an affidavit also fall within the rule….” State v. Stepney, 191 Conn. 233, 238 (1984).

State v. Bergin. So let us assume that there is, indeed, a material omission. A court finds that the warrant, with the material omitted, would not sustain a finding of probable cause. Then what? One could argue logically that when a search warrant is invalid, the fruits of the search are suppressed. If an arrest warrant is invalid, the arrest should be invalidated. But wait:

The relationship between an illegal arrest and a subsequent prosecution under federal constitutional law is well settled. In an unbroken line of cases dating back to 1886, the federal rule has been that an illegal arrest will not bar a subsequent prosecution or void a resulting conviction. United States v. Crews, 445 U.S. 463, 474 (1980); Gerstein v. Pugh, 420 U.S. 103, 119 (1975); United States v. Blue, 384 U.S. 251, 255 (1966); Frisbie v. Collins, 342 U.S. 519, 522 (1952); Ker v. Illinois, 119 U.S. 436, 440 (1886).

State v. Fleming. An illegal arrest does not stop a prosecution nor does it void a conviction. The argument, it seems, is that you’ve committed the crime if you’ve committed the crime and any illegality in actually initiating the prosecution shouldn’t enable you to go scot-free. What does it get you, then? A Franks violation in an arrest warrant gets you a suppression of the fruits of that illegal arrest: a confession, items seized, etc. But it doesn’t change the fact that you have been accused and thus can be prosecuted for the crime.

A Franks violation in an affidavit supporting an arrest warrant does not entitle a defendant to the dismissal of the charges for which he was arrested. Such a violation may require the suppression of evidence or statements obtained as a result of the execution of the warrant but it does not deprive the court of jurisdiction nor does it bar a subsequent prosecution or void a resulting conviction. United States v. Crews, 445 U.S. 463, 474 (1980); Gerstein v. Pugh, 420 U.S. 103, 119 (1975); United States v. Blue, 384 U.S. 251, 255 (1966); Frisbie v. Collins, 342 U.S. 519, 522 (1952); Ker v. Illinois, 119 U.S. 436, 440 (1886).

State v. Patterson. This, of course, assumes that there are “fruits” of the illegal arrest. What of the case where there are none? You can easily imagine the scenario where the omission of potentially exculpatory information permits the State to obtain a warrant for the arrest of an individual, thus initiating the criminal prosecution. After that, it’s their decision whether to pursue the charges or not and that power essentially entitles the State to force the defendant to a trial, at expense to himself or to the State, through the office of the public defender.

A Constitutional violation caused by the improper acts of the agents of the State having been established, the jurisprudence in this area provides for no real remedy whatsoever. This is a glaring hole in Constitutional caselaw that can be exploited to harass, threaten and otherwise ruin perfectly innocent people. To acknowledge on one hand that the State has engaged in illegal activity and yet on the other permit the same State to continue to reap the benefit of that illegal activity and to force the defendant to risk a trial or accept a compromise deal vitiates Due Process in the worst way. I have not been able to find a mechanism by which the prosecution itself can be dismissed where a warrant has been found to have been obtained by illegal means. Do you know of any?

In an effort to combat drug crime in “minority high crime neighborhoods”, police long ago adopted the “pretextual stop”, which was later condoned by SCOTUS in Whren. In Whren, Scalia wrote:

Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary. In United States v. Villamonte-Marquez, 462 U. S. 579, 584, n. 3 (1983), we held that an otherwise valid warrantless boarding of a vessel by customs officials was not rendered invalid “because the customs officers were accompanied by a Louisiana state policeman, and were following an informant’s tip that a vessel in the ship channel was thought to be carrying marihuana.” We flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification. In United States v. Robinson, 414 U. S. 218 (1973), we held that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was “a mere pretext for a narcotics search,” id., at 221, n. 1; and that a lawful postarrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches, see id., at 236. See also Gustafson v. Florida, 414 U. S. 260, 266 (1973). And in Scott v. United States, 436 U. S. 128, 138 (1978), in rejecting the contention that wiretap evidence was subject to exclusion because the agents conducting the tap had failed to make any effort to comply with the statutory requirement that unauthorized acquisitions be minimized, we said that “[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.” We described Robinson as having established that “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” 436 U. S., at 136, 138.

While the pretextual stop is almost exclusively thought of in the motor vehicle context (what with it being a stop and all…), I recently came across the use of a pretext to police drug activity in the non motor vehicle area. [A Lexis search for trespass and Whren and trespass and pretext yielded no meaningful results. Yes, I am that much of a nerd.]

Apparently, police departments in some parts of the state have taken to entering into “criminal trespass agreements” (or some such variation: the public defender I got this from wasn’t entirely clear so blame him, not me). What this essentially means is this: the property owner will enter into a contract with the police department, giving them permission to enforce the criminal trespass statutes. The property owner then provides the police department with a list of the properties and the names of all the residents in those locations. There may or may not be signs to that effect posted on the property.

The police then drive by locations in the city. When they see vagrant youths loitering on property, they’ll do a check to see if there’s a trespassing agreement. If there is, they walk up to the up-to-no-gooders and ask them if they reside there. If they don’t, they’re arrested and searched and you get the picture.

What this “agreement” also does, is gives the police license to actually approach the yewts on private property and essentially demand to know what they’re doing. Anything in plain sight, is of course, in plain sight. Absent such agreements, I’m pretty sure they’d have no basis, reasonable or articulable or otherwise, to simply ask fresh-faced young men what they’re doing on private property.

Yes, trespassing is a crime, albeit only a misdemeanor, and yes by being on someone else’s property without permission, they’re trespassing. But it gets rather tricky if you think about it for a second. How is the officer to know whether the yewt is actually trespassing or merely visiting someone who lawfully resides in the building? What if he’s a guest of a resident or is a new resident? In fact, the officer cannot even determine whether the loiterer is a resident on the list already with the police department, until he approaches the vagrant and asks him who he is and whether he lives there.

Too often, by that time, the officer has already locked onto the “suspect” and well, the cat’s out of the bag.

Is there any legal challenge to bypass of the Fourth Amendment? I’m not sure. But it does bother me a bit and maybe you as well.

Yutes, yewts, youths’

Consider the facts:

On April 1, 2006, Officers Craig Miller, David Rivera and Charles Gargano of the New Haven police department were patrolling the Fair Haven  neighborhood as part of their duties with that city’s drug interdiction unit. The neighborhood was known for frequent drug trafficking activity. The  officers  were in an unmarked patrol car, operated by Rivera. At approximately 5:15 p.m., the officers observed a Chevrolet Impala turn right from Ferry Street onto Grand Street without signaling. The officers followed the Impala around the block, during which time they also observed that the  defendant, who was operating the car, was not wearing a seat belt. Pursuant to police department policy, the officers called dispatch to request a  marked cruiser in order to effectuate a motor vehicle violation stop.

Three marked patrol cars responded to the dispatch call, and stopped the Impala at the corner of Ferry Street and Grand Street. The unmarked  patrol car stopped approximately one half of a car length behind the Impala. While still in their unmarked patrol car, Rivera, Miller and Gargano  observed the defendant make a movement toward his right side, which led them to believe that the defendant might be concealing a weapon. The  three officers then approached the Impala. As they were approaching, Miller observed the defendant close the center console in the front seat.

Rivera removed the defendant from the vehicle, handcuffed him, and frisked him for weapons. While frisking the defendant for weapons, Rivera  discovered $1369 in cash and several cell phones on his person. At the same time, Miller and Gargano, as well as several officers from the other  patrol cars, removed the two passengers from the vehicle, handcuffed them, and frisked them for weapons. Miller then returned to the car and  observed some plastic protruding from the center console. He opened the console and removed plastic bags that he believed to contain crack  cocaine. The officers also determined that the Impala was owned by a rental car company. Subsequent testing revealed that the bags discovered in  the console contained approximately 21.5 grams of freebase cocaine, commonly referred to as crack cocaine.

So, let’s recap, in normalspeak: officers were in a “minority high crime neighborhood”, looking for an excuse to pull someone over. They saw the defendant commit a motor vehicle violation. They pulled the car over and saw the defendant “make a movement toward his right side” (whatever the hell that means) and decide not only that he was armed, but because he was in a “MHCN”, he was dangerous and probably selling drugs. They handcuffed everybody and searched them and the car with impunity. We now contort ourselves to affirm this stream of clearly illegal activity by the police.

The defendant filed a motion to suppress relying on Arizona v. Gant, which holds that once you have arrested the occupants of the vehicle, there is no more legitimate “officer safety concern”, so a warrant must be obtained.

The Court rejects (emphatically!) the defendants contention that Gant applies since the defendant wasn’t technically arrested until after the drugs were discovered and instead agrees with the State that the “protective search” rubric of Michigan v. Long must control. In Long, the Supreme Court said that the:

purpose of protective searches to be the concern that if the suspect is not placed under arrest, he will be permitted to . . . [go free], and he will then  have access to any weapons

and thus, when analyzing a warrantless search under Long:

our focus is on whether the officers had a reasonable and articulable suspicion to believe that the defendant posed a danger and might access the  vehicle to gain control of a weapon.

Well, clearly, since the defendant wasn’t actually arrested and merely in a state of “custodial arrest (maybe)”, the question then becomes whether the officers had a reasonable and articulable suspicion that he posed a danger and that there was a weapon in the vehicle.

Remember now, that this was in a “minority high crime neighborhood” and that all three officers saw a “movement to his right side” and one saw him “close the center console”. That same officer then innocently “returned to the car” and saw “some plastic protruding” from that very same center console.

But that’s not enough, is it? Surely even the CT Supreme Court would not hold that that is sufficient to conduct a warrantless search of a motor vehicle? Of course not. Which is why we have the “collective knowledge of law enforcement” exception to the Fourth Amendment.

In conducting this analysis, we are cognizant of ‘‘the well settled principle that, in testing the amount of evidence that supports probable cause, it  is not the personal knowledge of the arresting officer, but the collective knowledge of the law enforcement organization at the time of the  arrest that must be considered. See Poulos v. Pfizer, Inc., 244 Conn. 598, 619 (1998) (McDonald, J., concurring) (Fourth  amendment law recognizes that the collective knowledge of the police determines probable cause. See Whiteley v. Warden, 401 U.S. 560, 568 [1971]; see 2 W. LaFave, Search and Seizure [3d Ed. 1996] § 3.5 [b], p. 259 n.46.); State v. Acquin, 187 Conn.  647, 657 (1982) (when we test the quantum of [evidence supporting] probable cause, it is not the personal knowledge of the  arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered)’’

Justice Who?

Miller and Rivera saw the defendant “make a movement to his right side”, Miller saw the defendant close the center console, Rivera frisked the defendant and pulled out a gun-like cell phone and cash, and Miller saw the plastic in the console. Of course, they all knew that it was a minority high crime area. And there was testimony that Miller and Rivera shared their observations and findings with one another. Wait, there wasn’t? Oh nevermind. Their knowledge is imputed onto one another.

In fact, applying Whiteley, why stop there? What if Rivera wasn’t on the scene and hadn’t discovered the call signs of drug activity: cell phones and cash? Wherever he was, he must’ve known that those items indicate drug activity. And Officer Krupke, on his beat at the other end of town surely knows that anyone who has cell phones and cash is an armed and dangerous drug dealer! So, of course, the officer at the scene had articulable and reasonable suspicion to search the vehicle. And look, they don’t even have to arrest anyone! Wheee!!!

Because anyone in the police department anywhere is cognizant of the fact that if you’re driving in a minority high crime neighborhood without a seatbelt and you make a movement to your right side and close the center console and happen to have cash and a cell phone, you must be an armed and dangerous drug kingpin. It’s in their – and your – DNA.

Welcome to the 24th Century, where the police are the Borg. The Fourth Amendment will be assimilated. Resistance is futile. Don’t drive.

[A plea: if anyone figures out what "movement to his right side" means, please leave a comment. I have no fucking clue. Kthxbai.]

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

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?

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.