Recently in Search and Seizure Category

Can a series of surveillance steps by government agents, none of which is a "search" by itself, add up to a search? In this post at VC, Orin Kerr skeptically reviews today's D.C. Circuit decision in United States v. Maynard.

The Supreme Court upheld the Ontario, California Police Department's review of transcripts of text messages an officer sent and received on his department-issued pager in Ontario v. Quon this morning. AP story here.

The Washington Post has this editorial, with the above title, criticizing a Fourth Amendment exclusionary rule decision of the D.C. Court of Appeals. Here is the concluding paragraph:

Law enforcement officers must be held to high standards, but judges should allow some leeway for dealing appropriately with the realities and the dangers of the streets. Officer Elliott used his best judgment and made a reasonable call in a potentially volatile situation. A cache of illegal drugs was seized. No one was hurt. Such actions should be commended, not penalized.

This story from the ABC affiliate in Phoenix reports on some amendments to the controversial Arizona immigration law:

One change to the bill strengthens restrictions against using race or ethnicity as the basis for questioning and inserts those same restrictions in other parts of the law.

Changes to the bill language will actually remove the word "solely" from the sentence, "The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin."

Another change replaces the phrase "lawful contact" with "lawful stop, detention or arrest" to apparently clarify that officers don't need to question a victim or witness about their legal status.

Regardless of where one stands on the law itself (and CJLF hasn't taken a position), these appear to be salutary changes. The "lawful contact" language particularly bugged me. Simply talking to a person on the sidewalk with no basis for suspicion whatever is a "lawful contact," but I suspected that was not what they meant. They meant Terry stops, traffic stops, and arrests. I haven't been able to find the actual amendment yet, but it appears from the story that they did fix this particular problem.

Orin Kerr has this post at SCOTUSblog on the sparse Fourth Amendment docket at the Supreme Court. He references that post at Volokh Conspiracy. His theory is that the justices inclined to vote for criminal defendants are denying certiorari because they fear their side will lose and make more restrictive precedent.

As I note in the comments at VC (because SCOTUSblog no longer allows comments), I think Orin is overlooking an important aspect of the problem. Some of the justices are receptive to a relatively expansive view of substantive Fourth Amendment rights but hostile to the exclusionary rule. I think it is significant that the only Fourth Amendment case on the docket for full briefing and argument this term is a civil case with no Mapp v. Ohio implications.

Would anyone expect a court to buy this argument?

The police violated my right to privacy by looking in my open window. I had demonstrated an expectation of privacy by installing blinds, even though I left them open on this occasion.

Of course not. The cop can't know if you left the blinds open on purpose or inadvertently. If you expose something to public view, there is no violation in the police seeing what you have exposed, along with everyone else who happens to look.

Well, kiddie porn file sharer Charles Borowy made a similar argument, and the Ninth Circuit didn't buy it in United States v. Borowy, 09-10064, decided today. He installed software for a file sharing service on his computer, and he tried but failed to engage a privacy feature. So the whole world could see his kiddie porn, and an FBI agent did. "Borowy's subjective intention not to share his files did not create an objectively reasonable expectation of privacy in the face of such widespread public access."

The Ninth Circuit en banc today upheld San Francisco's policy of strip-searching everyone booked into the jail, superseding a prior 2-1 decision of a 3-judge panel and reversing the decision of District Judge Charles Breyer.*

The decision was 6-1-4. Judge Ikuta wrote the opinion, joined by Judges Kozinski, Rymer, Gould, Clifton, and R. Smith. Judge Graber concurred in the judgment on qualified immunity grounds while agreeing with the dissent on the substantive Fourth Amendment question. Judge Thomas wrote the dissent, joined by Judges Wardlaw, Berzon, and Rawlinson.

An excerpt of the majority opinion follows the jump.

We all know you can indict a ham sandwich, but can you issue an arrest warrant for a DNA profile? The following questions will be answered (for California) on Monday in People v. Robinson:

The court limited the issues to be briefed and argued to the following: (1) Does the issuance of a "John Doe" complaint and arrest warrant timely commence a criminal action and thereby satisfy the statute of limitations? (2) Does an unknown suspect's DNA profile satisfy the "particularity" requirement for an arrest warrant? (3) What remedy is there, if any, for the unlawful collection of genetic material under the DNA and Forensic Identification Database and Data Bank Act of 1998 (Pen. Code, § 295 et seq.)?

Cal. Supreme's "Notices of Forthcoming Filings" sure are handy. Why can't SCOTUS do this?

Gallup tells us that air travelers would rather have body scans than pat-downs at airport security, 70-22. When asked about scans alone, travelers approve 78-20.

Should polls such as this be relevant in courts' Fourth Amendment determinations? Yes, I think so. The 4A prohibits "unreasonable searches," and how else do we determine what is "reasonable" in matters that have no historical record?  The judges' personal opinions?  The consensus of the law reviews?  The editorial page of the New York Times?  I'll take the consensus of the people.

Yesterday, the California Third District Court of Appeal declared in People v. Branner (C059288) that the exclusionary rule did not prevent the use of evidence obtained by an officer relying on a rule of the U.S. Supreme Court even when the Court later changed its mind about the rule.  According to the majority, "the guilty should not go free when the constable did precisely what the U.S. Supreme Court told him he could do, but the Court later decides it was the one who blundered." 

Branner's case began here in Sacramento.  In 2004, defendant Jasper Dwight Branner, was arrested when officers investigating Vehicle Code violations discovered he had not complied with drug offender registration requirements.  The officers arrested Branner, placed him in the back of the patrol car, and searched the passenger compartment of his vehicle.  They discovered cocaine base and a gun.  New York v. Belton authorized this type of search incident to arrest in 1981, but last term's Arizona v. Gant limited an officer's ability to search to areas within the arrestees immediate control and areas "within which he might gain possession of a weapon."

The court's debate presents some interesting questions on the deterrent purpose of the exclusionary rule and whether the Branner should benefit from Gant's retroactive effect. 

Today's News Scan notes Adam Liptak's article in the New York Times. The headlines reads, "Right and Left Join Forces on Criminal Justice." The trends that Liptak notes are interesting, but I think he overstates the case of how much has changed.

After noting that some conservative groups have filed amicus briefs supporting defendants in some cases, the article says, "The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration." No, not really. "Tough on crime" never did mean siding with the prosecution in every case. It meant keeping the trial focused on whether the defendant really did it, not on collateral issues. It meant imposing an adequate punishment for acts that every rational person agrees should be criminal, such as murder, rape and robbery. It did not mean expanding criminal law to cover such things as, e.g., importing lobsters.

The article continues, "Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws."

Mr. Meese is a valued advisor to CJLF, and he is just as much "a fervent supporter of law and order" as he ever was. His shop at Heritage was instrumental in coordinating the amici supporting the state in the Graham and Sullivan cases. They also published Adult Time for Adult Crimes to correct some of the misinformation about violent juveniles that the left-leaning think tanks have been pumping out.

Many conservatives now are opposing laws that make issues criminal that should be civil and make issues federal that should be state.  That is far different from the old liberal goals of making the trial an examination of what the police did rather than what the accused did and setting the murderer free because the constable blundered. On issues such as these, the liberal-conservative divide remains as strong as ever. The picture is somewhat complicated by the existence of libertarian groups such as Cato that side with conservatives on economic issues and liberals on criminal law issues, but that is an issue of taxonomy rather than realignment.

Another complication is the fact that the Supreme Court is more conservative than it was in the Warren and Burger years, and that has caused a shift in the issues it considers. Rules of law that overturn convictions for reasons having little or nothing to do with the reliability of the verdict, such as Mapp and Miranda, are fading in prominence as the Court whittles them down. The hot issues today are the Apprendi and Crawford lines of cases, which really are based in the Constitution and actually do have some relation to reliability of the verdict. The conservative "tough on crime" position never was about risking the conviction of innocent people. We were always the ones who agreed with Judge Friendly that innocence is indeed relevant.

The cases noted in the article where conservative groups have supported the defendant are different in kind from the cases that produced the liberal-conservative divide in the past and continue to make that division today. The changing mix of the cases before the Supreme Court is more of a factor producing the occasional odd bedfellows than any emerging consensus.

The trends noted in the article are interesting and important, but let's not get carried away. Conservatives and liberals are still locked in opposition on the death penalty, habeas corpus, the exclusionary rule, Miranda, and every other rule that enables violent criminals to get off easy or get off completely for crimes we know beyond a reasonable doubt they committed. There will not be consensus on those issues until the lefties see the error of their ways, and I'm not going to hold my breath.

The WSJ has this article by Josh Emshwiller on the Ninth Circuit's en banc decision in US v. Comprehensive Drug Testing, No. 05-10067. Orin Kerr at VC has this brief post with a link to his earlier, more detailed post.

During the Bush Administration, there was much wailing and gnashing of teeth from the lefties about a provision of the Patriot Act that supposedly was going to have the government prying into everyone's library records to see if they read forbidden books, or something like that. Actually, the provision was for business records. So, when the lefties got their candidate in the White House, the "library" provision would be the first thing thrown over the side, right?

Not quite. Devlin Barrett reports for AP,

The Obama administration supports extending three key provisions of the Patriot Act that are due to expire at the end of the year, the Justice Department told Congress in a letter made public Tuesday....

In a letter to lawmakers, Justice Department officials said the administration supports extending the three expiring provisions of the law, although they are willing to consider additional privacy protections as long as they don't weaken the effectiveness of the law.

The Ninth Circuit has issued its pseudo en banc* opinion in a case arising out of the Balco baseball drug scandal, United States v. Comprehensive Drug Testing, Inc., No. 05-10067. It's a long opinion and will take some time to digest. The opinion is by CJ Kozinski, and Judges Callahan, Bea, and Ikuta dissent in various parts. The summary from the main opinion is quoted after the jump.

Yesterday I asked whether the denial of certiorari in Brendlin, the sequel, "presage[d] that there will be no major change in the law in Arizona v. Gant?" Never mind.

In New York v. Belton, 453 U.S. 454 (1981), presented the question, "When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding?" Answer: yes.

Today in Gant, by a 5-4 vote, the Court rejected a "broad" (i.e., straightforward) reading of Belton. The exception to the warrant requirement described in Belton applies only when the arrestee might be able to reach inside the car to obtain a weapon or destroy evidence or "when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle."

What about stare decisis (the doctrine of adherence to precedent)?

Our dissenting colleagues argue that the doctrine of stare decisis requires adherence to a  broad reading of Belton even though the justifications for searching a vehicle incident to arrest are in most cases absent. The doctrine of stare decisis is of course "essential to the respect accorded to the judgments of the Court and to the stability of the law," but it does not compel us to follow a past decision when its rationale no longer withstands "careful analysis." Lawrence v. Texas, 539 U. S. 558, 577 (2003).

I have no quarrel with that as long as it applies in both directions, not as a ratchet that regards pro-defendant precedents as sacrosanct and pro-prosecution precedents as subject to constant reexamination. Please remember your words, Justice Stevens, the next time the Court is presented with a claim under one of its many pro-defense precedents that is both unjustified as an original matter and a failure in practice. For example, there are the multiple extensions of the rule of Edwards v. Arizona, 451 U.S. 477 (1981). One is at issue in Montejo v. Louisiana this term, previously noted here, and another is at issue in Maryland v. Shatzer, No. 08-680 next term. Then there is the brooding omnipresence of capital punishment law, the disastrous Lockett v. Ohio, 438 U.S. 586 (1978).

The lineup in today's decision, BTW, included Justices Scalia and Thomas voting for the defendant and Justice Breyer voting for the prosecution.