Take that, SCOTUS!
And with the stroke of a pen (or, more accurately, the tapping of a few keys), the Iowa Supreme Court decided it wasn't playing games with the search and seizure clause of the state's constitution. As Justice Appell put it:
In the words of another state supreme court, we do not allow the
words of our Iowa Constitution to be “balloons to be blown up or deflated
every time, and precisely in accord with the interpretation of the U.S.
Supreme Court, following some tortious trail.”
The question at hand was whether a so-called "inventory" search was a valid exception to the 4th Amendment's prohibition of unreasonable search and seizure. Art. 1, Sec. 8 of the Iowa Constitution contains the same wording as the 4th Amendment.
Bion Ingram was driving to work one morning when he was pulled over for a defective license plate lamp (one of those little lovelies that a motorist can never disprove). The officer then determined that the registration affixed to Mr. Ingram's car didn't quite match the car itself. The officer told Mr. Ingram he was going to have to impound the car but he offered to give him a ride to the nearest gas station so a friend could take him to work.
Then the officer asked if Mr. Ingram has anything of value in the car. He said no. The police then told him they were going to do an inventory search of the car before they towed it. And wouldn't you know it, they found a bag with a glass pipe and a gram of meth. Mr. Ingram was arrested. He challenged the search on the grounds there was no probable cause to search and that there was no warrant.
The trial court said who cares? He was convicted of possession of a controlled substance and filed an appeal.
The court decided that it wasn't going to allow the whims of the US Supreme Court to determine just what an unreasonable search was in Iowa. In its ruling the court held that the Supreme Court's determination of what was reasonable under the 4th Amendment wasn't the law of the land -- just the minimum guaranteed right.
The opinion offers a fairly comprehensive history of automobile exceptions to the 4th Amendment.
The opinion also offers advise to trial attorneys -- when making an objection based on federal constitutional law, make damn sure you make the same objection on state constitutional (or statutory) grounds when available. Failing to do so could open you up for a claim of ineffective assistance.
h/t Owen Barcala
Showing posts with label search warrant. Show all posts
Showing posts with label search warrant. Show all posts
Friday, July 6, 2018
Monday, June 4, 2018
The problem with a property-based Fourth Amendment analysis
One fine day Ryan Collins went out riding a distinctive orange and black motorcycle. I'm going to assume that the weather was fine and the traffic was fairly light because he was cruising around at speeds approaching 140 mph.
While Mr. Collins may have been having himself quite the ride, the local police were not nearly as thrilled as the reports rolled in of an orange and black motorcycle traveling at a high rate of speed.
Somehow the police discovered that the bike didn't exactly belong to Mr. Collins. Through a little bit of snooping, they discovered the bike in question on a Facebook post. Officers went to Mr. Collins' house and found a tarp covering what appeared to be a bike in the driveway. Officer Rhodes walked up the drive, lifted the tarp and saw the bike - without first obtaining a search warrant.
Officers then waited and arrested Mr. Collins when he returned. After the trial court denied his motion to suppress the discovery of the bike, Mr. Collins was convicted of receiving stolen property.
Last week the US Supreme Court reversed Mr. Collins' conviction on the grounds that Officer Rhodes violated Mr. Collins' fourth amendment protection against unreasonable search and seizure when he lifted the tarp.
The state had argued that this particular incident fell under the so-called vehicle exception to the fourth amendment and that the police were acting lawfully when lifting the tarp off what appeared to be a bike sitting in the driveway of a residence.
The Supreme Court held that the bike was parked in the curtilage of Mr. Collins' house and was not in plain sight since it was covered by a tarp.
Now, while this case is a victory for fourth amendment advocates and anyone under suspicion by the police, it continues a recent trend of basing fourth amendment protections on the concepts of property law. The curtilage is considered to that area immediately outside a person's house -- it could consist of patios, porches, sidewalks, breezeways and driveways. These are areas that aren't actually part of the house - but they are close enough, in some cases, to be considered as such.
Just because something is on the curtilage, however, doesn't mean the police can't walk up to it and examine it. Had Mr. Collins just parked his bike in the driveway in plain sight of anyone driving or walking by, the result of this case would have been the opposite. What saved Mr. Collins was the fact he tossed a tarp over the bike as it sat in his driveway. That meant the only way the police could determine the bike was stolen was to walk up the driveway and lift the tarp - a trespass as the court decided.
While this property-based determination of what constitutes an unreasonable search is helpful in case involving physical evidence, it is not so helpful when the same analysis is applied to data such as e-mails or web searches or information stored on the Cloud. In those instances there is no physical property, there is no curtilage, there is no trespass. When we start talking about digital data we're talking more about a relationship between a person and a set of binary digits.
And if we're looking at the relationship between a person and some data stored on a server somewhere, we don't have 18th century property law to fall back on. Rather then making fourth amendment jurisprudence all about property law concepts, maybe we need to go back and re-ask the question "what is unreasonable?"
While Mr. Collins may have been having himself quite the ride, the local police were not nearly as thrilled as the reports rolled in of an orange and black motorcycle traveling at a high rate of speed.
Somehow the police discovered that the bike didn't exactly belong to Mr. Collins. Through a little bit of snooping, they discovered the bike in question on a Facebook post. Officers went to Mr. Collins' house and found a tarp covering what appeared to be a bike in the driveway. Officer Rhodes walked up the drive, lifted the tarp and saw the bike - without first obtaining a search warrant.
Officers then waited and arrested Mr. Collins when he returned. After the trial court denied his motion to suppress the discovery of the bike, Mr. Collins was convicted of receiving stolen property.
Last week the US Supreme Court reversed Mr. Collins' conviction on the grounds that Officer Rhodes violated Mr. Collins' fourth amendment protection against unreasonable search and seizure when he lifted the tarp.
The state had argued that this particular incident fell under the so-called vehicle exception to the fourth amendment and that the police were acting lawfully when lifting the tarp off what appeared to be a bike sitting in the driveway of a residence.
The Supreme Court held that the bike was parked in the curtilage of Mr. Collins' house and was not in plain sight since it was covered by a tarp.
Now, while this case is a victory for fourth amendment advocates and anyone under suspicion by the police, it continues a recent trend of basing fourth amendment protections on the concepts of property law. The curtilage is considered to that area immediately outside a person's house -- it could consist of patios, porches, sidewalks, breezeways and driveways. These are areas that aren't actually part of the house - but they are close enough, in some cases, to be considered as such.
Just because something is on the curtilage, however, doesn't mean the police can't walk up to it and examine it. Had Mr. Collins just parked his bike in the driveway in plain sight of anyone driving or walking by, the result of this case would have been the opposite. What saved Mr. Collins was the fact he tossed a tarp over the bike as it sat in his driveway. That meant the only way the police could determine the bike was stolen was to walk up the driveway and lift the tarp - a trespass as the court decided.
While this property-based determination of what constitutes an unreasonable search is helpful in case involving physical evidence, it is not so helpful when the same analysis is applied to data such as e-mails or web searches or information stored on the Cloud. In those instances there is no physical property, there is no curtilage, there is no trespass. When we start talking about digital data we're talking more about a relationship between a person and a set of binary digits.
And if we're looking at the relationship between a person and some data stored on a server somewhere, we don't have 18th century property law to fall back on. Rather then making fourth amendment jurisprudence all about property law concepts, maybe we need to go back and re-ask the question "what is unreasonable?"
Friday, May 16, 2014
McNeely strikes again
The State urges that we balance the public and private interests that are implicated in serious DWI cases and find that Texas’s mandatory blood draw statute, section 724.012(b), is a reasonable substitute for the Fourth Amendment’s warrant requirement. -- Weems v. State, No. 04-13-00366-CR, (Tex.App.--San Antonio 2014)That is a scary argument found in the San Antonio Court of Appeals decision in Weems v. State. The Fourth Amendment is quite clear in its meaning - warrants shall be required to conduct a search. But, even though the language is absolute, our courts have, over the years, whittled away at the edges to such a degree that the Founders wouldn't even recognize what has happened to their Bill of Rights.
And, leading the charge to chip away at the meaning of the Fourth Amendment is the old balancing test. If you don't already realize whenever the Supremes break out the scales in a criminal case, the outcome is not going to be favorable for either the defendant nor the Constitution.
One of the seminal cases in DWI law is Schmerber v. California, 384 US 757 (1966) which made an end run around the Fourth Amendment by finding that a warrantless search may very well be reasonable depending on the totality of the circumstances. The most popular of these circumstances turned out to be exigency. Prosecutors argued for generations that warrantless blood draws were reasonable because alcohol tended to dissipate out of the bloodstream and, if the blood weren't drawn quickly enough, there would be no evidence left to test.
The development of better, more efficient gas chromatographs and the newfound popularity of retrograde guesstimation made exigency less and less of a factor. Meanwhile, states like Texas began enacting so-called implied consent laws as another way to get around the warrant requirement. Texas also enacted a law that made the taking of a blood specimen mandatory when a person died in an alcohol-related crash, when a person was seriously injured in an alcohol-related crash of if the driver suspected of being intoxicated had two or more prior DWI convictions.
And this is where things stood at the time of McNeely.
Then everything changed. As a refresher, in McNeely, the Supreme Court held that the dissipation of blood by itself was insufficient to justify a warrantless blood draw. The Court pointed out that with the advent of No Refusal Weekends and with the decision that affidavits for warrants could be transmitted to the judge via fax, phone or e-mail, it was relatively easy to find a compliant magistrate who would sign on the dotted line and authorize the blood draw.
Texas then began to argue that the implied consent law was its end run around the warrant requirement. Since, in the eyes of the state, every motorist had given their consent to submit to a breath or blood test merely by getting on the road, then the police had a built-in exception to the warrant requirement - consent.
That bit of intellectual dishonesty crashed to earth when the Supreme Court overturned a conviction in Aviles v. State and sent the case back down to Texas for a new trial in line with the holding in McNeely.
In Weems, the defendant was driving after he had been drinking with a friend. He managed to flip his car on the way home. His friend was injured and taken to the hospital. Mr. Weems fled from the scene but was found a short time later. No sobriety tests were performed because Mr. Weems needed medical attention. After Mr. Weems declined to provide a blood specimen, the arresting officer took him to the hospital where a forcible blood draw was conducted. The result showed that, at the time of the accident, Mr. Weems was about three times the legal limit. He was subsequently convicted of driving while intoxicated.
The San Antonio Court of Appeals then proceeded to reverse Mr. Weems' conviction and held that neither the implied consent law, the mandatory blood draw provision of the Transportation Code nor the dissipation of alcohol justified a warrantless blood draw without a showing that an established exception to the warrant requirement existed.
Monday, January 27, 2014
Passing along the costs of blood testing
As if the costs associated with a DWI arrest aren't high enough, prosecutors with the Harris County District Attorney's Office are working on a plan to charge defendants with the cost of drawing, storing and analyzing their blood samples. As the number of blood tests in DWI cases has skyrocketed in the past few years, area crime labs are being overwhelmed with the kits.
Prosecutors seem to think that the answer to short-handed labs is to transfer the cost of hiring and training new analysts to the motorists accused of driving while intoxicated. The Code of Criminal Procedure would seem to allow the government to do so.
But why are there so many blood tests?
If you guessed "No Refusal Weekends" you are correct.
In an ongoing attempt to coerce motorists into agreeing to give up evidence to help the government's case, local prosecutors, law enforcement agencies and compliant judges have all teamed up to force motorists to submit to breath or blood tests. The reason why is quite obvious - too many motorists were challenging their arrests in court and (in the eyes of prosecutors and judges) too many juries were giving them the benefit of the doubt at trial.
The government, never shy about violating the rights of the accused when it serves their purpose, decided that the best way to obtain convictions was to pressure drivers into submitting to breath tests - even though it isn't against the law to decline the invitation to give the state more evidence. Nevermind the fact that prosecutors have been obtaining convictions in DWI cases for years without the benefit of breath tests or even NHTSA's roadside exercises on film.
Just like the casinos, prosecutors and law enforcement decided to improve the house's odds in a DWI prosecution. The courts played along by allowing officers to fax affidavits to judges and to allow officers to be sworn over the telephone.
Now we have a backlog of blood samples from simple Class B misdemeanors (one step removed from a traffic ticket) because the government decided it needed more evidence to rig the game. The motorist stopped for speeding or not signalling a lane change after leaving a restaurant or bar certainly didn't decide to contribute to the backlog. The decision was made by the officers involved in the stop, local prosecutors and judges who want to appear tough on crime.
No one forced prosecutors and local law enforcement agencies to have nurses on duty to draw blood. No one forced them to provide equipment to judges so they could make their "reasoned legal decisions" from the comfort of their own homes.
If the cost of testing all the blood that's drawn in DWI cases is prohibitive then maybe the government should think twice about pursuing these policies. Passing along the cost doesn't solve the problem. Taxing the citizen accused because prosecutors don't want to have to try breath test refusal cases isn't equitable. The cost should be borne by the parties who insist on coercing motorists to consent to chemical tests.
Blood tests aren't necessary in most DWI cases. The facts regarding the traffic stop, the officers observations at the scene and the motorist's performance on roadside exercises is enough for most juries to decide whether or not the state proved up its case. If prosecutors don't like losing DWI trials then perhaps that might want consider just what the presumption of innocence means. They might also want to consider why our nation's founders made the burden of proof for arresting someone a whole lot less than for convicting that same person.
H/T Grits for Breakfast
Prosecutors seem to think that the answer to short-handed labs is to transfer the cost of hiring and training new analysts to the motorists accused of driving while intoxicated. The Code of Criminal Procedure would seem to allow the government to do so.
But why are there so many blood tests?
If you guessed "No Refusal Weekends" you are correct.
In an ongoing attempt to coerce motorists into agreeing to give up evidence to help the government's case, local prosecutors, law enforcement agencies and compliant judges have all teamed up to force motorists to submit to breath or blood tests. The reason why is quite obvious - too many motorists were challenging their arrests in court and (in the eyes of prosecutors and judges) too many juries were giving them the benefit of the doubt at trial.
The government, never shy about violating the rights of the accused when it serves their purpose, decided that the best way to obtain convictions was to pressure drivers into submitting to breath tests - even though it isn't against the law to decline the invitation to give the state more evidence. Nevermind the fact that prosecutors have been obtaining convictions in DWI cases for years without the benefit of breath tests or even NHTSA's roadside exercises on film.
Just like the casinos, prosecutors and law enforcement decided to improve the house's odds in a DWI prosecution. The courts played along by allowing officers to fax affidavits to judges and to allow officers to be sworn over the telephone.
Now we have a backlog of blood samples from simple Class B misdemeanors (one step removed from a traffic ticket) because the government decided it needed more evidence to rig the game. The motorist stopped for speeding or not signalling a lane change after leaving a restaurant or bar certainly didn't decide to contribute to the backlog. The decision was made by the officers involved in the stop, local prosecutors and judges who want to appear tough on crime.
No one forced prosecutors and local law enforcement agencies to have nurses on duty to draw blood. No one forced them to provide equipment to judges so they could make their "reasoned legal decisions" from the comfort of their own homes.
If the cost of testing all the blood that's drawn in DWI cases is prohibitive then maybe the government should think twice about pursuing these policies. Passing along the cost doesn't solve the problem. Taxing the citizen accused because prosecutors don't want to have to try breath test refusal cases isn't equitable. The cost should be borne by the parties who insist on coercing motorists to consent to chemical tests.
Blood tests aren't necessary in most DWI cases. The facts regarding the traffic stop, the officers observations at the scene and the motorist's performance on roadside exercises is enough for most juries to decide whether or not the state proved up its case. If prosecutors don't like losing DWI trials then perhaps that might want consider just what the presumption of innocence means. They might also want to consider why our nation's founders made the burden of proof for arresting someone a whole lot less than for convicting that same person.
H/T Grits for Breakfast
Monday, July 22, 2013
No refusal isn't just for weekends anymore
No longer must we wait for holidays and three-day weekends to celebrate the evisceration of the Fourth Amendment. Now, in Harris County, we can celebrate it every day. That's because the Harris County District Attorney's Office has decided to make every day a No Refusal Day.
Going forward anytime a motorist is stopped and arrested on suspicion of driving while intoxicated and refuses to consent to a breath test, police will obtain a warrant to strap that motorist down and stick a needle in their arm. The expansion of No Refusal Weekends was announced by the Harris County District Attorney's Office but no one from the county judiciary had anything to say (publicly) about the plan.
It strikes me as quite interesting that the DA's office would announce a program expanding the use of search warrants to conduct forcible blood draws while the people who would actually sign the warrants said nothing. There just isn't any question that men and women wearing black polyester robes will take the warrant application from their fax machine and sign it unconditionally.
No Refusal Weekends only work when judges are compliant and willing to cast aside any shred of impartiality and join "the team." There is no random wheel that assigns judges to sit and wait for search warrant applications to come across the telephone lines. Judges are recruited to blindly sign search warrants authorizing forcible blood draws at the drop of a hat.
This willingness to sign warrants without scrutiny is a blatant violation of the oaths they took when they took they position on the bench. The name of the game isn't teaming up to rid the streets of drunk drivers - the name of the game is to ensure that the constitutional rights of the accused are protected. Judges who are worried about looking soft on crime are doing us all a great disservice by sitting on the bench in judgment of others.
Going forward anytime a motorist is stopped and arrested on suspicion of driving while intoxicated and refuses to consent to a breath test, police will obtain a warrant to strap that motorist down and stick a needle in their arm. The expansion of No Refusal Weekends was announced by the Harris County District Attorney's Office but no one from the county judiciary had anything to say (publicly) about the plan.
It strikes me as quite interesting that the DA's office would announce a program expanding the use of search warrants to conduct forcible blood draws while the people who would actually sign the warrants said nothing. There just isn't any question that men and women wearing black polyester robes will take the warrant application from their fax machine and sign it unconditionally.
No Refusal Weekends only work when judges are compliant and willing to cast aside any shred of impartiality and join "the team." There is no random wheel that assigns judges to sit and wait for search warrant applications to come across the telephone lines. Judges are recruited to blindly sign search warrants authorizing forcible blood draws at the drop of a hat.
This willingness to sign warrants without scrutiny is a blatant violation of the oaths they took when they took they position on the bench. The name of the game isn't teaming up to rid the streets of drunk drivers - the name of the game is to ensure that the constitutional rights of the accused are protected. Judges who are worried about looking soft on crime are doing us all a great disservice by sitting on the bench in judgment of others.
Monday, April 29, 2013
High court says no to warrantless blood draws - or does it?
Tyler McNeely was heading home from a local watering hole one evening when a police officer stopped him for speeding and crossing the center dividing line. You shouldn't be surprised to find out that the officer noted Mr. McNeely had the smell of alcohol on his breath, red eyes and slurred speech. Mr. McNeely told the officer he had had a couple of beers.
Apparently Mr. McNeely didn't perform the roadside calisthenics to the degree of precision the officer desired and he was promptly handcuffed and stuffed into the back of a patrol car. The officer asked Mr. McNeely if he'd be willing to provide further evidence against himself by taking a breath test. Mr. McNeely declined the invitation so the officer headed to a nearby medical facility.
Now excuse me for a few seconds while I climb up on my soapbox. By not taking the officer up on his request to blow into a machine, Mr. McNeely violated the implied consent statute in Missouri. Now I'm guessing that Mr. McNeely wasn't told when he applied for his driver's license that he was agreeing to blow into the state's breath test machine whenever an officer thought he was intoxicated. I'm also guessing that none of y'all were told that when they handed you that laminated card with the awful picture on the front.
At the hospital the officer asked Mr. McNeely if he'd be willing to sit down and have a needle jabbed into his arm for the purpose of securing evidence that would be used against him. To no one's surprise, Mr. McNeely again declined the invitation.
The officer then grabbed a nurse who drew the blood. Left unsaid in the sanitized Court opinion is just how the officer managed to get the blood sample in the first place. If someone is unwilling to give blood voluntarily asking them pretty please with sugar on top isn't likely to change their mind. Was Mr. McNeely strapped down in a chair? Did an officer use his weight to subdue Mr. McNeely? Was he held down by orderlies?
Whatever the case, it certainly wasn't a pleasant experience and I'm guessing that if a judge were subjected to a forcible blood draw that the opinions we see on these types of cases would be very different. I'm not thinking a judge would find a blood draw to be "minimally invasive" when a person is tied down or held down. I don't think a judge would be so clinical if it was she was felt that needed go into the vein.
But I digress.
Mr. McNeely was charged with driving while intoxicated. He moved to suppress the blood test results on the grounds that the warrantless "search" was unreasonable. The state argued that there were exigent circumstances - namely that blood dissipates in the blood and if they didn't get their hands on that vial of blood it might make it harder for them to prove their case (or something like that). The trial court granted Mr. McNeely's motion as did the Missouri Supreme Court.
The state then appealed to the United States Supreme Court to determine whether or not the natural dissipation of alcohol in blood qualified as an exigent circumstance to circumvent that thing we call the Fourth Amendment.
Now let's just set aside the fact that for years prosecutors made DWI cases, and obtained convictions, with nothing more than the officer's testimony of what he or she observed at the scene. There are still plenty of cases tried today with nothing more than the officer's testimony and a videotape of the defendant doing a set of roadside exercises. Results from breath or blood tests are needed to pin a DWI on a motorist - they are more of a cudgel used to force a defendant to plead guilty.
There were no exigent circumstances in Mr. McNeely's case. In this day of No Refusal Weekends and judges willing to sign faxed warrant affidavits it's not a daunting task to convince a judge to sign a warrant authorizing the police to jab a needle in someone's arm. Which is precisely what the Nine in Robes decided.
Well, to be fair, the Court said that the facts in Mr. McNeely's case led them to conclude there were no exigent circumstances but they weren't prepared to stretch the ruling to other cases. Instead they decided that each case shall be examined based on the facts peculiar to the case. In other words, courts will be allowed to consider just how badly the defendant behaved before ruling on whether or not the Fourth Amendment applies to his case.
Would the decision have been different had there been an accident? What if Mr. McNeely's alcohol concentration had been higher than .015? Exactly what bad facts would have made this case come out differently?
The dissipation of alcohol in blood is not an exigent circumstance. It is a scientific fact. And, even if you want to call it an exigent circumstance - it's an exigent circumstance created by the police. As such there should be no exception to the Fourth Amendment's ban on unreasonable search and seizure. Decisions such as McNeely only serve to weaken our constitutional protections and turn our rights into balancing tests.
There is no balancing test for a constitutionally protected right. That right is either violated or not. The citizenry are either afforded protection from the state or they're not. Our rights are not ours through legislative fiat and it's high time the Supreme Court take a hard look at the damage to the Bill of Rights its endless variety of balancing tests have cause.
Apparently Mr. McNeely didn't perform the roadside calisthenics to the degree of precision the officer desired and he was promptly handcuffed and stuffed into the back of a patrol car. The officer asked Mr. McNeely if he'd be willing to provide further evidence against himself by taking a breath test. Mr. McNeely declined the invitation so the officer headed to a nearby medical facility.
Now excuse me for a few seconds while I climb up on my soapbox. By not taking the officer up on his request to blow into a machine, Mr. McNeely violated the implied consent statute in Missouri. Now I'm guessing that Mr. McNeely wasn't told when he applied for his driver's license that he was agreeing to blow into the state's breath test machine whenever an officer thought he was intoxicated. I'm also guessing that none of y'all were told that when they handed you that laminated card with the awful picture on the front.
At the hospital the officer asked Mr. McNeely if he'd be willing to sit down and have a needle jabbed into his arm for the purpose of securing evidence that would be used against him. To no one's surprise, Mr. McNeely again declined the invitation.
The officer then grabbed a nurse who drew the blood. Left unsaid in the sanitized Court opinion is just how the officer managed to get the blood sample in the first place. If someone is unwilling to give blood voluntarily asking them pretty please with sugar on top isn't likely to change their mind. Was Mr. McNeely strapped down in a chair? Did an officer use his weight to subdue Mr. McNeely? Was he held down by orderlies?
Whatever the case, it certainly wasn't a pleasant experience and I'm guessing that if a judge were subjected to a forcible blood draw that the opinions we see on these types of cases would be very different. I'm not thinking a judge would find a blood draw to be "minimally invasive" when a person is tied down or held down. I don't think a judge would be so clinical if it was she was felt that needed go into the vein.
But I digress.
Mr. McNeely was charged with driving while intoxicated. He moved to suppress the blood test results on the grounds that the warrantless "search" was unreasonable. The state argued that there were exigent circumstances - namely that blood dissipates in the blood and if they didn't get their hands on that vial of blood it might make it harder for them to prove their case (or something like that). The trial court granted Mr. McNeely's motion as did the Missouri Supreme Court.
The state then appealed to the United States Supreme Court to determine whether or not the natural dissipation of alcohol in blood qualified as an exigent circumstance to circumvent that thing we call the Fourth Amendment.
Now let's just set aside the fact that for years prosecutors made DWI cases, and obtained convictions, with nothing more than the officer's testimony of what he or she observed at the scene. There are still plenty of cases tried today with nothing more than the officer's testimony and a videotape of the defendant doing a set of roadside exercises. Results from breath or blood tests are needed to pin a DWI on a motorist - they are more of a cudgel used to force a defendant to plead guilty.
There were no exigent circumstances in Mr. McNeely's case. In this day of No Refusal Weekends and judges willing to sign faxed warrant affidavits it's not a daunting task to convince a judge to sign a warrant authorizing the police to jab a needle in someone's arm. Which is precisely what the Nine in Robes decided.
Well, to be fair, the Court said that the facts in Mr. McNeely's case led them to conclude there were no exigent circumstances but they weren't prepared to stretch the ruling to other cases. Instead they decided that each case shall be examined based on the facts peculiar to the case. In other words, courts will be allowed to consider just how badly the defendant behaved before ruling on whether or not the Fourth Amendment applies to his case.
Would the decision have been different had there been an accident? What if Mr. McNeely's alcohol concentration had been higher than .015? Exactly what bad facts would have made this case come out differently?
The dissipation of alcohol in blood is not an exigent circumstance. It is a scientific fact. And, even if you want to call it an exigent circumstance - it's an exigent circumstance created by the police. As such there should be no exception to the Fourth Amendment's ban on unreasonable search and seizure. Decisions such as McNeely only serve to weaken our constitutional protections and turn our rights into balancing tests.
There is no balancing test for a constitutionally protected right. That right is either violated or not. The citizenry are either afforded protection from the state or they're not. Our rights are not ours through legislative fiat and it's high time the Supreme Court take a hard look at the damage to the Bill of Rights its endless variety of balancing tests have cause.
Wednesday, March 27, 2013
Drug dog day afternoon
Joelis Jardines figured he was safe inside his own house. So long as no one knew what was going on behind the doors he had nothing to worry about.
But then someone told the police that he was cultivating copious amounts of cannabis under his roof. And, the police being the police, just had to figure out a way to get inside that house. So, relying on the fact that the courts have shredded the Fourth Amendment to verge of meaninglessness over the years, someone had the brilliant idea to walk a drug dog around the front of the house.
Of course the dog did his little song and dance and one of the officers went off and found a judge who hadn't read the Bill of Rights in several years who signed off on a warrant application and Mr. Jardines found himself dragged into court charged with trafficking in marijuana.
Surprising enough the trial court agreed with Mr. Jardines that the actions of the police crossed the line and constituted an illegal search. The appeals court then reversed the trial court. The Florida Supreme Court granted Mr. Jardine's petition for discretionary review and affirmed the decision of the trial court.
This, of course, would not do for the State of Florida and the case ended up in front of the US Supreme Court to determine whether the officers' actions constituted a warrantless search.
And, in Florida v. Jardines, 569 US ___ (2013), the Nine in Robes decided that the use of the police dog on the front porch of Mr. Jardines' house was a search. The Court held that the area immediately surrounding the house, the curtilage, was a constitutionally protected space and that any intrusion in that space by law enforcement without the permission of the homeowner is verboten.
Justice Scalia's opinion harks back to the original text of the Fourth Amendment and its prohibition against searches of a person or his house, papers or effects.
The opinion does raise questions, however. Just how far will this reading of the Fourth Amendment go when we're talking about aerial drones or surveillance aircraft? While in such a scenario the police aren't physically intruding upon a constitutionally protected space - they are viewing a space that they would have no access to but for the eye in the sky. And what about devices that could detect narcotics from the street? Will the Court look to the distance from the front door or at the effect of the technology?
And while we looking at the actual words of the Fourth Amendment, how will this decision affect government efforts to intercept email and digital communications? What about cell phone GPS information? How about the contents of a laptop's hard drive? And if walking a dog around the front porch is a search of a house, how is walking a dog around the exterior of a car not a search?
The decision is another step in the right direction, now it just remains to be seen if this Court is willing to curtail police efforts to create shortcuts around the Fourth Amendment. I'm not holding my breath.
But then someone told the police that he was cultivating copious amounts of cannabis under his roof. And, the police being the police, just had to figure out a way to get inside that house. So, relying on the fact that the courts have shredded the Fourth Amendment to verge of meaninglessness over the years, someone had the brilliant idea to walk a drug dog around the front of the house.
Of course the dog did his little song and dance and one of the officers went off and found a judge who hadn't read the Bill of Rights in several years who signed off on a warrant application and Mr. Jardines found himself dragged into court charged with trafficking in marijuana.
Surprising enough the trial court agreed with Mr. Jardines that the actions of the police crossed the line and constituted an illegal search. The appeals court then reversed the trial court. The Florida Supreme Court granted Mr. Jardine's petition for discretionary review and affirmed the decision of the trial court.
This, of course, would not do for the State of Florida and the case ended up in front of the US Supreme Court to determine whether the officers' actions constituted a warrantless search.
And, in Florida v. Jardines, 569 US ___ (2013), the Nine in Robes decided that the use of the police dog on the front porch of Mr. Jardines' house was a search. The Court held that the area immediately surrounding the house, the curtilage, was a constitutionally protected space and that any intrusion in that space by law enforcement without the permission of the homeowner is verboten.
Justice Scalia's opinion harks back to the original text of the Fourth Amendment and its prohibition against searches of a person or his house, papers or effects.
The opinion does raise questions, however. Just how far will this reading of the Fourth Amendment go when we're talking about aerial drones or surveillance aircraft? While in such a scenario the police aren't physically intruding upon a constitutionally protected space - they are viewing a space that they would have no access to but for the eye in the sky. And what about devices that could detect narcotics from the street? Will the Court look to the distance from the front door or at the effect of the technology?
And while we looking at the actual words of the Fourth Amendment, how will this decision affect government efforts to intercept email and digital communications? What about cell phone GPS information? How about the contents of a laptop's hard drive? And if walking a dog around the front porch is a search of a house, how is walking a dog around the exterior of a car not a search?
The decision is another step in the right direction, now it just remains to be seen if this Court is willing to curtail police efforts to create shortcuts around the Fourth Amendment. I'm not holding my breath.
Friday, February 1, 2013
Time to change the model
Our current Fourth Amendment jurisprudence is based upon what now must seem like a quaint concept - the reasonable expectation of privacy. In order to determine if police action constituted a search the court would ask whether or not the target of the action had a reasonable expectation of privacy in what they were doing.
For instance, if the target of police action was talking on a pay phone (if you've never heard nor seen such a thing, just look it up on Google), it was not considered good cricket if the police tapped that phone to listen in on the conversation. In theory a person had a reasonable expectation of privacy when standing inside a phone booth - even though the phone wasn't in their home.
The test also worked against individuals when they had no legitimate expectation of privacy. Airport security is the best example of this. If the government tells you they are going to x-ray every bag and force everyone boarding a plane to walk through a metal detector or body scanner - you can't make a claim that you had a reasonable expectation of privacy regarding the gun in your bag.
But this paradigm has run aground. Justice Sotomayor wrote about it in her concurring opinion in U.S. v Jones (see "Hey kids, get out of my yard!")
With all of our new shiny gadgets how much of a reasonable expectation of privacy do we have? Our e-mails sit on a server owned by a third party. Our cell phones have GPS devices that track us whenever the phone is on. Our conversations are carried in waves from tower to tower instead of in a cable buried under the ground. When registering products or buying stuff online we voluntarily give a third party our personal information. We post our every thoughts on Facebook and Twitter.
In short, the ways in which we communicate today have rendered the reasonable expectation of privacy test moot. And, as a result, the government has upped the ante by requesting reams and reams of personal data from internet providers and web service companies as a way of getting around that pesky requirement that they get a judge to sign a warrant.
Google publishes a transparency report that lets people know just how many requests for data they have received from government entities.
It turns out that Google received over 21,000 requests from government offices and courts during the second half of 2012 - an increase of 17% over the prior year and 71% over the number of requests in the second half of 2009. The United States government made some 8,438 of those requests. These requests range from the name associated with a given user account to e-mails.
The report also lets us know how often Google has complied either fully or partially when presented with a request. In 2012 Google complied with 66% of the requests, down from 70% the previous year and from 76% back in 2010. Google provided at least some data to the US government 88% of the time - down from previous years.
I guess this is the point we have to decide whether we're glass-half-full or glass-half-empty folks. On the half-empty side, Google is turning over information about 2/3 of the time a government entity requests it - and in almost nine of every ten requests from our government. That's a lot of data being handed over to the government about what we do online.
On the half-full side, the numbers do indicate that Google isn't just handing over the keys to the server upon request. Although los federales get at least some of the info they request 88% of the time, the rest of the requests go straight into the circular file. And there is no doubt that it frustrates government officials when they can't get what they want just by flashing a card that says they work for the government.
Ultimately we are going to have to redefine what "persons, houses, papers and effects" means as well as just what it means to "search or seize" something. Back in the day we used to write letters and drop them in a blue box with a stamp on them. Someone would then deliver those letters to people in other cities and states. Now we just type our messages on a computer and push the send button. Is there really a difference? Does it really matter whether the message is written on paper and placed in a sealed envelope or sent through the aether of cyberspace? We used to talk on corded telephones that required someone to attach a mechanical device if they wanted to listen in on our conversation. Now we talk on cell phones that record our location and send our voices through space. Is there really a difference between the two?
Justice Sotomayor is correct that we need to rethink our paradigm when it comes to search and seizure law. But maybe, just maybe, the answer is to look back to the actual words on the page and decide just what "persons, houses, papers and effects" means. Instead of creating balancing tests and checklists and looking for any excuse to create an exception to the written words, maybe we need to look to the words themselves.
Instead of looking at it from the perspective that everything must be reasonable unless..., maybe we should look at from the perspective that everything must be unreasonable unless...
For instance, if the target of police action was talking on a pay phone (if you've never heard nor seen such a thing, just look it up on Google), it was not considered good cricket if the police tapped that phone to listen in on the conversation. In theory a person had a reasonable expectation of privacy when standing inside a phone booth - even though the phone wasn't in their home.
The test also worked against individuals when they had no legitimate expectation of privacy. Airport security is the best example of this. If the government tells you they are going to x-ray every bag and force everyone boarding a plane to walk through a metal detector or body scanner - you can't make a claim that you had a reasonable expectation of privacy regarding the gun in your bag.
But this paradigm has run aground. Justice Sotomayor wrote about it in her concurring opinion in U.S. v Jones (see "Hey kids, get out of my yard!")
With all of our new shiny gadgets how much of a reasonable expectation of privacy do we have? Our e-mails sit on a server owned by a third party. Our cell phones have GPS devices that track us whenever the phone is on. Our conversations are carried in waves from tower to tower instead of in a cable buried under the ground. When registering products or buying stuff online we voluntarily give a third party our personal information. We post our every thoughts on Facebook and Twitter.
In short, the ways in which we communicate today have rendered the reasonable expectation of privacy test moot. And, as a result, the government has upped the ante by requesting reams and reams of personal data from internet providers and web service companies as a way of getting around that pesky requirement that they get a judge to sign a warrant.
Google publishes a transparency report that lets people know just how many requests for data they have received from government entities.
It turns out that Google received over 21,000 requests from government offices and courts during the second half of 2012 - an increase of 17% over the prior year and 71% over the number of requests in the second half of 2009. The United States government made some 8,438 of those requests. These requests range from the name associated with a given user account to e-mails.
The report also lets us know how often Google has complied either fully or partially when presented with a request. In 2012 Google complied with 66% of the requests, down from 70% the previous year and from 76% back in 2010. Google provided at least some data to the US government 88% of the time - down from previous years.
I guess this is the point we have to decide whether we're glass-half-full or glass-half-empty folks. On the half-empty side, Google is turning over information about 2/3 of the time a government entity requests it - and in almost nine of every ten requests from our government. That's a lot of data being handed over to the government about what we do online.
On the half-full side, the numbers do indicate that Google isn't just handing over the keys to the server upon request. Although los federales get at least some of the info they request 88% of the time, the rest of the requests go straight into the circular file. And there is no doubt that it frustrates government officials when they can't get what they want just by flashing a card that says they work for the government.
Ultimately we are going to have to redefine what "persons, houses, papers and effects" means as well as just what it means to "search or seize" something. Back in the day we used to write letters and drop them in a blue box with a stamp on them. Someone would then deliver those letters to people in other cities and states. Now we just type our messages on a computer and push the send button. Is there really a difference? Does it really matter whether the message is written on paper and placed in a sealed envelope or sent through the aether of cyberspace? We used to talk on corded telephones that required someone to attach a mechanical device if they wanted to listen in on our conversation. Now we talk on cell phones that record our location and send our voices through space. Is there really a difference between the two?
Justice Sotomayor is correct that we need to rethink our paradigm when it comes to search and seizure law. But maybe, just maybe, the answer is to look back to the actual words on the page and decide just what "persons, houses, papers and effects" means. Instead of creating balancing tests and checklists and looking for any excuse to create an exception to the written words, maybe we need to look to the words themselves.
Instead of looking at it from the perspective that everything must be reasonable unless..., maybe we should look at from the perspective that everything must be unreasonable unless...
Wednesday, December 26, 2012
Worth the paper it's printed on
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. -- 2nd AmendmentFor the most ardent gun rights advocates out there, the language of the 2nd Amendment is sacrosanct. Of course the qualifying clause before the comma is often brushed off as if it didn't exist.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches andseizures , 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 Amendment
We look back now at the Constitution and Bill of Rights as the great blueprints of our nation. At the time the Constitution was adopted, however, there were a multitude of voices arguing that the plan laid out in that document would only serve to enslave farmers and other agrarian interests. That's why we have two house of Congress - one represented the voice of the people and other represented the voice of the states. It's the reason the Electoral College was created - to ensure that the voters of just a few of the larger states could dictate who served as president. (The irony, of course, is that we have just the opposite situation today where the voters of a few states hold the rest of the nation hostage on Election Day.)
The agrarian interests were not in favor of a strong centralized government. They believed that only favored the monied interests in the larger states. One thing they really feared was the creation of a federal army. The 2nd Amendment was designed to sway those critics by leaving the defense of the republic to the state militias.
And, in order to have state militias capable of defending the republic against an expected attack from the English, folks needed to have guns.
Now that we have a professional army, the original rationale for the 2nd Amendment no longer exists.
If one wants to argue that the words of the 2nd Amendment are absolute, I can only show you the words in the 4th Amendment as proof that nothing in the Bill of Rights is absolute.
The 4th Amendment, despite its clear prohibition against unreasonable search and seizure and the warrant requirement has been honored far more in the breach than in the observance over the history of the republic. Most of the "reinterpretation" of the 4th Amendment has been the result of judges seeing cases in which someone either did something bad or had something bad and, but for a warrantless search, would have gotten away. Supreme Court justices, instead of reading the 4th Amendment and applying its words, adopted a results-oriented approach and looked for ways to get around the warrant requirement.
Over the years the Court has redefined "persons, houses, papers and effects" and created a mythical "reasonable expectation of privacy" test out of whole cloth. Courts have redefined "searches" and "seizures" in such a way that a person can be handcuffed in the back of a police car and not be considered seized and a pat down for weapons isn't considered a search. The word "unreasonable" has apparently been deleted from the English language and probable cause has become so watered down that stops are justified because an officer thinks someone may have violated the law.
Once upon a time we had a right to be left alone by the state, today you can get tased if you don't stop to answer questions.
Maybe it helps that gun holders and makers have a very powerful lobby behind them with lots of money to throw around while victims of warrantless searches tend to be convicted criminals without a lot of cash.
Friday, December 21, 2012
Time for the annual crackdown on the Fourth Amendment
Once again it's that time of year when law enforcement agencies get together to celebrate the demise of the Fourth Amendment and crack down on suspected drunk drivers.
Local law enforcement agencies in the Houston area were the recipients of a $295,000 state grant that will allow them to put an additional 50 officers out on the streets between now and New Year's. What that really means is that what's left of the Fourth Amendment is being shredded and we're footing the bill.
Of course the message given to the public through the media is that motorists who drink and drive, whether legally or not, are a menace to the rest of us on the roadways. But the truth of the matter is most drivers who are arrested on suspicion of driving while intoxicated aren't stopped because they're driving dangerously. They are pulled over because they failed to signal a lane change, they failed to signal a turn (even in a must-turn lane), they were speeding or their car had some sort of equipment issue (cracked taillight, burned out turn signal or expired plates).
A good number of these drivers will be subjected to various roadside calisthenics and then taken to a station where they are asked to blow into the state's breath test machine under threat of having a needle jabbed in their arm. The authority to jab that needle in the arm will be given by a judge who volunteered tosign "review" warrant applications regardless of whether the affidavit is a fill-in-the-blank or a form affidavit. Regardless of whether the affidavit is conclusory or even alleges probable cause exists to believe the blood is evidence of a crime.
And all of this for a crime that's one step removed from a traffic ticket.
The judges who volunteer to participate step across the line from a neutral and detached magistrate to a member of the law enforcement team. And in a county in which most of the judges are part of the same club, the odds of one judge ruling that his or her colleague signed a warrant application in error are slim and none.
Just remember that the judges who ignore the Fourth Amendment and rubber stamp warrant applications on No Refusal Weekends are the same judges who are going to decide if that traffic stop in that dope case was bad or if that 911 tape is coming in on that domestic assault case.
Ignoring the Fourth Amendment gets easier the more you do it. Fill-in-the-blank affidavit? No problem. Affidavit template on the computer? No one cares. Conclusory statements? You've got to do better than that, counselor.
But since the police and the judges set up drunk drivers as the bogeymen, few people bother to question whether the shredding of the Fourth Amendment is worth the benefit. And, once the public makes it known that they don't mind those drunk drivers being denied their constitutional rights, it makes it easier for the police to do it the next time.
Local law enforcement agencies in the Houston area were the recipients of a $295,000 state grant that will allow them to put an additional 50 officers out on the streets between now and New Year's. What that really means is that what's left of the Fourth Amendment is being shredded and we're footing the bill.
Of course the message given to the public through the media is that motorists who drink and drive, whether legally or not, are a menace to the rest of us on the roadways. But the truth of the matter is most drivers who are arrested on suspicion of driving while intoxicated aren't stopped because they're driving dangerously. They are pulled over because they failed to signal a lane change, they failed to signal a turn (even in a must-turn lane), they were speeding or their car had some sort of equipment issue (cracked taillight, burned out turn signal or expired plates).
A good number of these drivers will be subjected to various roadside calisthenics and then taken to a station where they are asked to blow into the state's breath test machine under threat of having a needle jabbed in their arm. The authority to jab that needle in the arm will be given by a judge who volunteered to
And all of this for a crime that's one step removed from a traffic ticket.
The judges who volunteer to participate step across the line from a neutral and detached magistrate to a member of the law enforcement team. And in a county in which most of the judges are part of the same club, the odds of one judge ruling that his or her colleague signed a warrant application in error are slim and none.
Just remember that the judges who ignore the Fourth Amendment and rubber stamp warrant applications on No Refusal Weekends are the same judges who are going to decide if that traffic stop in that dope case was bad or if that 911 tape is coming in on that domestic assault case.
Ignoring the Fourth Amendment gets easier the more you do it. Fill-in-the-blank affidavit? No problem. Affidavit template on the computer? No one cares. Conclusory statements? You've got to do better than that, counselor.
But since the police and the judges set up drunk drivers as the bogeymen, few people bother to question whether the shredding of the Fourth Amendment is worth the benefit. And, once the public makes it known that they don't mind those drunk drivers being denied their constitutional rights, it makes it easier for the police to do it the next time.
Wednesday, November 21, 2012
"A cell phone is not a pair of pants"
Anthony Granville got in trouble at school one day. I don't know for what. But he found himself with his hands cuffed behind his back and getting a free ride to the county jail.
The court's opinion just refers to Mr. Granville as having "caused a disturbance." Being that appellate courts are never shy about telling us just how badly a defendant behaved, I find it hard to fathom why the police were carting Mr. Granville off to jail.
But that is a discussion for another time and another day.
While sitting in the county jail, Mr. Granville's cell phone became quite the object of interest from a police officer who had nothing to do with Mr. Granville's arrest. It seems that he somehow caught wind that Mr. Granville had taken a picture of another student urinating.
Armed with this information the officer made his way to the jail, retrieved Mr. Granville's cell phone and, without obtaining a search warrant, began searching through the stored images. Lo and behold, he found the picture in question and Mr. Granville's day suddenly became worse as he was soon charged with the felony offense of "improper photography or visual recording."
Mr. Granville urged a motion to suppress the images on the grounds that the search of his cell phone constituted an unconstitutional search.
The prosecutor argued that the search was "simply a probable cause search of jail property that is a person's effects when they go to jail" and that Mr. Granville had no reasonable expectation of privacy in what was taken from him upon being booked into the jail. According to the prosecutor, a cell phone is the equivalent of a pair of pants.
The trial court was having none of it and granted Mr. Granville's motion.
But that wasn't the end of the matter as the State just couldn't let the matter go and appealed the judge's order suppressing the photograph.
In State v. Granville, No. 07-11-0415-CR (Tex.App.-- Amarillo 2012), the Amarillo Court of Appeals held that the warrantless search of a cell phone by a "stranger to an arrest" violates the Fourth Amendment. In its opinion, the court explained, in detail, why a cell phone is not a pair of pants.
The court explained that a cell phone is more like a computer and that the information contained within the memory of a cell phone provides a glimpse into the private life of the owner and that the use of passwords, encrypted programs and other security measures gave the user a reasonable expectation of privacy.
The court also took note that Mr. Granville's phone had to be turned on by the officer who decided he needed to snoop around and look at the photos stored on the phone. The fact that the phone had been turned off was another indication that Mr. Granville had a reasonable expectation of privacy.
Finally the court addressed the issue of whether a pre-trial detainee (arrestee) has a privacy interest in his cell phone. Mr. Granville was arrested for a Class C misdemeanor (for those outside the Lone Star State, that is the equivalent of a traffic ticket). He was not going to be held in custody for long and he certainly wasn't the type of person that the ordinary citizen would think should be locked up. The court stated that, because a pre-trial detainee has the opportunity to post bond and get released that he has a greater privacy interest in his personal property than an inmate.
I leave y'all with this quote from the opinion:
The court's opinion just refers to Mr. Granville as having "caused a disturbance." Being that appellate courts are never shy about telling us just how badly a defendant behaved, I find it hard to fathom why the police were carting Mr. Granville off to jail.
But that is a discussion for another time and another day.
While sitting in the county jail, Mr. Granville's cell phone became quite the object of interest from a police officer who had nothing to do with Mr. Granville's arrest. It seems that he somehow caught wind that Mr. Granville had taken a picture of another student urinating.
Armed with this information the officer made his way to the jail, retrieved Mr. Granville's cell phone and, without obtaining a search warrant, began searching through the stored images. Lo and behold, he found the picture in question and Mr. Granville's day suddenly became worse as he was soon charged with the felony offense of "improper photography or visual recording."
Mr. Granville urged a motion to suppress the images on the grounds that the search of his cell phone constituted an unconstitutional search.
The prosecutor argued that the search was "simply a probable cause search of jail property that is a person's effects when they go to jail" and that Mr. Granville had no reasonable expectation of privacy in what was taken from him upon being booked into the jail. According to the prosecutor, a cell phone is the equivalent of a pair of pants.
The trial court was having none of it and granted Mr. Granville's motion.
But that wasn't the end of the matter as the State just couldn't let the matter go and appealed the judge's order suppressing the photograph.
In State v. Granville, No. 07-11-0415-CR (Tex.App.-- Amarillo 2012), the Amarillo Court of Appeals held that the warrantless search of a cell phone by a "stranger to an arrest" violates the Fourth Amendment. In its opinion, the court explained, in detail, why a cell phone is not a pair of pants.
The court explained that a cell phone is more like a computer and that the information contained within the memory of a cell phone provides a glimpse into the private life of the owner and that the use of passwords, encrypted programs and other security measures gave the user a reasonable expectation of privacy.
The court also took note that Mr. Granville's phone had to be turned on by the officer who decided he needed to snoop around and look at the photos stored on the phone. The fact that the phone had been turned off was another indication that Mr. Granville had a reasonable expectation of privacy.
Finally the court addressed the issue of whether a pre-trial detainee (arrestee) has a privacy interest in his cell phone. Mr. Granville was arrested for a Class C misdemeanor (for those outside the Lone Star State, that is the equivalent of a traffic ticket). He was not going to be held in custody for long and he certainly wasn't the type of person that the ordinary citizen would think should be locked up. The court stated that, because a pre-trial detainee has the opportunity to post bond and get released that he has a greater privacy interest in his personal property than an inmate.
I leave y'all with this quote from the opinion:
While assaults upon the Fourth Amendment and article I, § 9 of the United States and Texas Constitutions regularly occur, the one rebuffed by the trial court here is sustained. A cell phone is not a pair of pants.
Monday, July 23, 2012
Swearing on the telephone
A few days ago Scott Greenfield over at Simple Justice picked up on a piece written by Walter Olson decrying the use of a judge's gavel in an anti-drunk driving ad. The ad implied that the robed ones were in bed with the state when it came to DWI prosecutions.
Now anyone who has spent considerable time in the criminal courthouse knows that this relationship isn't strictly limited to drunk driving cases.
The latest example of this is a decision handed down earlier this year by the state appeals court out of Waco, Texas in which the court took everything you thought you knew about affidavits and tossed it out on its ear.
Ms. Katherine Clay found herself arrested by a state trooper on suspicion of driving while intoxicated. When the officer asked her to blow into the state's breath test machine, she exercised her right to say no. That, apparently, didn't sit too well with the officer who decided he wanted blood.
The officer then prepared an affidavit for a search warrant and called up a judge.County Court at Law Judge A. Lee Harris picked up the phone and, after an exchange of pleasantries, swore the officer to tell the truth. Now I have no knowledge as to whether the officer's fingers were crossed behind his back, but after "taking the oath," the officer faxed the affidavit to the judge who dutifully (we certainly can't have judges actually read and think about these things before blindly affixing their signatures to them) signed it and issued a warrant authorizing the officer to have a nurse stick a needle into Ms. Clay's arm for an offense one step removed from a traffic ticket.
In so doing, the berobed ones took a decidedly activist stance and redefined the meaning of the word affidavit. They also looked to how the federal courts handle situations involving the use of affidavits, telephones and trampling the rights of defendants. But I suppose that a little activism is alright when it serves the purpose of the state in a criminal prosecution and even Texas' long history of antagonism toward los federales is tempered if a way around that pesky little Fourth Amendment can be found.
But how did this entire scenario develop? What led to an officer calling a judge up on the phone to swear to his account of the traffic stop? Why was the officer faxing a warrant application to a judge in the middle of the night?
This was but a routine traffic stop - the same stop that occurs in town after town across this state every night of the week. There was no accident. No one was injured. If I had to guess I'd say that Ms. Clay was either speeding or didn't use her blinker to signal a lane change in the middle of the night.
If I were to hazard a guess, I'd say that Ms. Clay was caught up in the snare of a No Refusal Weekend. The judge would have been recruited either by prosecutors or the police to volunteer to sign (not to review and scrutinize - but just to sign) search warrants authorizing forcible blood draws if a motorist refused to blow into the breath test machine. The judge was made one of The Team - a team consisting of police, prosecutors and judges willing to ignore the Bill of Rights.
And if the appeals court were to have a backbone and a willingness to be an separate and independent branch of government, the No Refusal Weekend would be no more.
Now anyone who has spent considerable time in the criminal courthouse knows that this relationship isn't strictly limited to drunk driving cases.
The latest example of this is a decision handed down earlier this year by the state appeals court out of Waco, Texas in which the court took everything you thought you knew about affidavits and tossed it out on its ear.
Ms. Katherine Clay found herself arrested by a state trooper on suspicion of driving while intoxicated. When the officer asked her to blow into the state's breath test machine, she exercised her right to say no. That, apparently, didn't sit too well with the officer who decided he wanted blood.
The officer then prepared an affidavit for a search warrant and called up a judge.County Court at Law Judge A. Lee Harris picked up the phone and, after an exchange of pleasantries, swore the officer to tell the truth. Now I have no knowledge as to whether the officer's fingers were crossed behind his back, but after "taking the oath," the officer faxed the affidavit to the judge who dutifully (we certainly can't have judges actually read and think about these things before blindly affixing their signatures to them) signed it and issued a warrant authorizing the officer to have a nurse stick a needle into Ms. Clay's arm for an offense one step removed from a traffic ticket.
In so doing, the berobed ones took a decidedly activist stance and redefined the meaning of the word affidavit. They also looked to how the federal courts handle situations involving the use of affidavits, telephones and trampling the rights of defendants. But I suppose that a little activism is alright when it serves the purpose of the state in a criminal prosecution and even Texas' long history of antagonism toward los federales is tempered if a way around that pesky little Fourth Amendment can be found.
Although the Government Code defines an affidavit as a writing signed by the maker and sworn to before an officer authorized to administer oaths, TEX. GOV'T CODE ANN. § 312.011(1) (West 2005), we agree with the Smith opinion that it is the act of swearing, the taking of the oath, that is essential to the validity of the affidavit. The purpose of the oath "is to call upon the affiant's sense of moral duty to tell the truth and to instill in him a sense of seriousness and responsibility." Smith v. State, 207 S.W.3d 787, 790 (Tex. Crim. App. 2006). The affidavit in this case provides, "The undersigned Affiant, being a peace officer under the laws of Texas and being duly sworn, on oath makes the following statement and accusations." It is signed by Ortega as the affiant and includes a signed jurat stating that it was subscribed and sworn to before the magistrate. In this instance, the personal familiarity of the trooper and the judge with each other's voice provides very strong indicia of truthfulness, trustworthiness, and reliability so as to call upon Trooper Ortega's "sense of moral duty to tell the truth and instill in him a sense of seriousness and responsibility." Id.
Therefore, under the facts of this case, a face-to-face meeting between the trooper and the judge was not required and the making of the oath over the telephone did not invalidate the search warrant. Accordingly, the trial court did not err in denying Clay's motion to suppress.
But how did this entire scenario develop? What led to an officer calling a judge up on the phone to swear to his account of the traffic stop? Why was the officer faxing a warrant application to a judge in the middle of the night?
This was but a routine traffic stop - the same stop that occurs in town after town across this state every night of the week. There was no accident. No one was injured. If I had to guess I'd say that Ms. Clay was either speeding or didn't use her blinker to signal a lane change in the middle of the night.
If I were to hazard a guess, I'd say that Ms. Clay was caught up in the snare of a No Refusal Weekend. The judge would have been recruited either by prosecutors or the police to volunteer to sign (not to review and scrutinize - but just to sign) search warrants authorizing forcible blood draws if a motorist refused to blow into the breath test machine. The judge was made one of The Team - a team consisting of police, prosecutors and judges willing to ignore the Bill of Rights.
And if the appeals court were to have a backbone and a willingness to be an separate and independent branch of government, the No Refusal Weekend would be no more.
Wednesday, February 29, 2012
It's only a misdemeanor
The American prison population is roughly two million. That's more than the total number of inmates in all of Europe.
But, as Loyola Law School professor Alexandra Natapoff points out in her recent law review article "Misdemeanors," most analyses of the American criminal (in)justice system ignore the plight of those accused of misdemeanors.
For every new felony charged filed in the US, there are approximately ten new misdemeanor cases. And most of these cases are disposed of quickly with pleas for time served. No one spends much time discussing the consequences of a misdemeanor conviction. Some attorneys can't even be bothered to do a half-assed investigation of the facts before pleading their clients out. And judges just want to get the cases off their dockets.
What we end up with is a system that brings new blood into our courthouses on a daily basis. These new defendants are taught by those who work within the system that a misdemeanor conviction is no big deal. They learn the lingo. They learn the drill.
But what happens when that plea of guilty in exchange for time served means you're not eligible for public housing? What about if that plea results in a driver license suspension? How about being ineligible for financial aid when you get to college? And what about the effect a conviction might have on your chances of finding suitable employment?
No one pays much attention to the problem of wrongful convictions in misdemeanor cases. That's probably because most misdemeanor convictions end in probated sentences of less than two years. No one's going to be locked away for the rest of their life. It takes longer to get a misdemeanor case up on appeal than it does to finish the sentence.
Judges relax the rules of evidence for the state. Problems with the administration of roadside coordination exercises go to the weight of the evidence, not its admissibility. Nevermind that the NHTSA manual tells us, in bold-faced, all caps, that the failure to administer the exercises properly renders them useless.
When it comes to forced blood draws on misdemeanor DWI cases, the contempt judges have for due process comes across loud and clear. Judges find nothing wrong with the notion of volunteering to sign search warrants ordering blood draws. They find nothing wrong with being part of a "team" to clean up the streets. What's that you say? The affidavit is full of conclusory statements without providing the factual bases for the conclusions? Ah, hell, motion to suppress denied.
For most of our clients, going to trial on a misdemeanor case is one of the most important moments in their lives. They've never been in trouble like this before - and they're facing a permanent black mark on their records if convicted. But, in the name of judicial economy, you get 20 minutes to question the jury panel. Twenty minutes to discuss the presumption of innocence, burden of proof and the elements of the offense. Mustn't bust the panel - it doesn't matter how much an answer reveals a bias or an inability to follow the law; let's just rehab them at the bench.
Fifteen minutes should suffice for opening and closing. And we've got that pattern jury charge, too. You know, the one that no one's bothered challenging for years now.
But, you know, it is only a misdemeanor, after all.
H/T Doug Berman
But, as Loyola Law School professor Alexandra Natapoff points out in her recent law review article "Misdemeanors," most analyses of the American criminal (in)justice system ignore the plight of those accused of misdemeanors.
For every new felony charged filed in the US, there are approximately ten new misdemeanor cases. And most of these cases are disposed of quickly with pleas for time served. No one spends much time discussing the consequences of a misdemeanor conviction. Some attorneys can't even be bothered to do a half-assed investigation of the facts before pleading their clients out. And judges just want to get the cases off their dockets.
What we end up with is a system that brings new blood into our courthouses on a daily basis. These new defendants are taught by those who work within the system that a misdemeanor conviction is no big deal. They learn the lingo. They learn the drill.
But what happens when that plea of guilty in exchange for time served means you're not eligible for public housing? What about if that plea results in a driver license suspension? How about being ineligible for financial aid when you get to college? And what about the effect a conviction might have on your chances of finding suitable employment?
No one pays much attention to the problem of wrongful convictions in misdemeanor cases. That's probably because most misdemeanor convictions end in probated sentences of less than two years. No one's going to be locked away for the rest of their life. It takes longer to get a misdemeanor case up on appeal than it does to finish the sentence.
Judges relax the rules of evidence for the state. Problems with the administration of roadside coordination exercises go to the weight of the evidence, not its admissibility. Nevermind that the NHTSA manual tells us, in bold-faced, all caps, that the failure to administer the exercises properly renders them useless.
When it comes to forced blood draws on misdemeanor DWI cases, the contempt judges have for due process comes across loud and clear. Judges find nothing wrong with the notion of volunteering to sign search warrants ordering blood draws. They find nothing wrong with being part of a "team" to clean up the streets. What's that you say? The affidavit is full of conclusory statements without providing the factual bases for the conclusions? Ah, hell, motion to suppress denied.
For most of our clients, going to trial on a misdemeanor case is one of the most important moments in their lives. They've never been in trouble like this before - and they're facing a permanent black mark on their records if convicted. But, in the name of judicial economy, you get 20 minutes to question the jury panel. Twenty minutes to discuss the presumption of innocence, burden of proof and the elements of the offense. Mustn't bust the panel - it doesn't matter how much an answer reveals a bias or an inability to follow the law; let's just rehab them at the bench.
Fifteen minutes should suffice for opening and closing. And we've got that pattern jury charge, too. You know, the one that no one's bothered challenging for years now.
But, you know, it is only a misdemeanor, after all.
H/T Doug Berman
Thursday, October 20, 2011
Isn't it ironic? (Don't you think?)
Sgt. Roy Marquez of the Houston Police Department's Traffic Enforcement Division (the guys in charge of the DWI task force) found himself on the opposite side of the line earlier this week in Pasadena. It seems that Sgt. Marquez ran a red light and ended up rolling his SUV after being struck by another car. It also seems that Sgt. Marquez had had a little bit to drink that night. After he declined the offer to blow into the breath test machine, a search warrant was signed authorizing the state to jab a needle into his arm and draw his blood. A blood test then showed an alcohol concentration of .127.
The most amazing thing about this story is not that a police officer was driving while intoxicated (we've already seen that), but that the blood test results were back within four days. I've got cases in which I can't get the results of fingerprint analysis for weeks or I can't get anyone to run a gun to see if it's been used in a crime -- but the lab can get the sample, catalog it, prep it, run it through the gas chromatograph and deliver the results to the DA in less than four days. Unbelievable.
Enjoy the irony...
The most amazing thing about this story is not that a police officer was driving while intoxicated (we've already seen that), but that the blood test results were back within four days. I've got cases in which I can't get the results of fingerprint analysis for weeks or I can't get anyone to run a gun to see if it's been used in a crime -- but the lab can get the sample, catalog it, prep it, run it through the gas chromatograph and deliver the results to the DA in less than four days. Unbelievable.
Enjoy the irony...
Tuesday, October 11, 2011
Search warrants for dummies
Maybe it's because they're lazy. Maybe it's because they can't be trusted to do it right by themselves. Whatever the reason for it, this is blood search warrants for dummies:
MoCo Search Warrant
There's no such thing as a fill-in-the-blank and check-the-boxes search warrant affidavit for any other criminal offense. Judges reviewing warrants to search a house in a felony case take more time to review the affidavit for probable cause than do judges deciding whether or not to allow the state to jab a needle in a motorist's arm.
This is your government at work - against you and your rights.
MoCo Search Warrant
There's no such thing as a fill-in-the-blank and check-the-boxes search warrant affidavit for any other criminal offense. Judges reviewing warrants to search a house in a felony case take more time to review the affidavit for probable cause than do judges deciding whether or not to allow the state to jab a needle in a motorist's arm.
This is your government at work - against you and your rights.
Friday, October 7, 2011
The volunteer army
From: Bill Reed
Sent: Thursday, June 23, 2011 11:31 AM
To: Criss, Susan
Subject: FW: Needing volunteers for Galveston County "No-Refusal" weekend for July 1,2,3 @ Dickinson Police Department: 8pm-4am
Judge: are you available? So far Lonnie and Ellisor are in. Grady is out of town. thanks, BR
*****
From: Bill Reed
Sent: Wednesday, August 24, 2011 9:59 AM
To: Ellisor, John; Cox, Lonnie; Mallia, Wayne; Criss, Susan; Dupuy, Christopher; Grady, John
Subject: looking for volunteers for No Refusal Weekend for Labor Day: 9/2/11-9/4/11
Any takers? Thanks, BRLooking for volunteers?
Or, are you looking for judges who will blindly sign a warrant authorizing a forcible blood draw based on a fill-in-the-blank affidavit? Are you looking for judges who buy into your notion that a person accused of driving while intoxicated has fewer rights (or at least less-important rights) than a person charged with any other offense? Are you looking for judges who agree that we should do whatever it takes to coerce people into pleading guilty to DWI?
You see the DA's Office is hand-picking its judges. They're going back to the judges who have signed, without question, warrants in the past and who are more than willing to continue to do so. The last thing the state wants is a judge who might just question this practice.
No. The deck must be stacked against the citizen accused. Even if we have to make an absolute mockery out of a document we all took an oath to uphold.
What, you think these judges are actually reading these affidavits and asking themselves if the officer has but forward enough facts to support his arrest decision?
From: Chris Paschenko
Date: Friday, Dec 31, 2010 12:01 pm
Subject: DWI arrests
To: Judge Susan Criss
We[re] you working and in what capacity when [L.B.] and [T.R.] were arrested? I'm told it was DWI. Also seeking on the record comment.
Thanks.
Chris
*****
From: judgecrissWhat else needs to be said about the mechanics of a No Refusal Weekend. There you have a judge telling a reporter that she was at the station "to sign warrants."
To: Chris Paschenko
Sent: Fri, Dec 31, 2010 12:39 pm
Subject: Re: DWI arrests
I was the judge at the station last night there to sign warrants worked 8pm to 4 am. Rules do not allow me to comment on the cases. Signed LB blood search warrant. Other waived need for warrant.
Not to review them. But to sign them.
Sadly, most folks don't care. They see nothing wrong with jabbing needles in someone's arm because you think they might have been intoxicated. Hey, we're out there keeping you safe. And these are the same folks who are more than willing to suffer any indignity at the hand of TSA employees just so they can board a plane. Hey, gotta keep us safe from terrorists.
Maybe we're just so self-absorbed that we simply don't care if the government is intruding on someone's rights - so long as we're not the one being trampled upon. As long as it's then that the government is after it's okay. The only problem is that at some point there will be no more them to protect you from the coercive power of the state. And, by then, it will be too late.
Thursday, October 6, 2011
Filling in the blanks
June 25, 2008
"The Galveston County Criminal District Attorney's Office is coordinating another no-refusal weekend for Friday July 3 and Saturday July 4, 2009. Dickinson Police Department has graciously agreed to host the event again this year. Judge Lonnie Cox will be our judge for Friday night and Judge John Ellisor will perform those duties on Saturday night. The hours of operation will be from 8:30 PM on July 3, 2009 until 4:30 AM on July 4, 2009 and against at 8:30 PM on July 4, 2009 until 4:30 AM on July 5, 2009...
I have attached the search warrants and affidavits for search warrants. The search warrant returns can be done immediately after the blood draw is performed."
-- Galveston County Assistant District Attorney Joel H. BennettThat's right. We've got your search warrant and affidavits right here. They're ready for you to fill in the blanks and type 'em up. No need to make an officer actually recite the facts in a case that gave rise to his belief that the driver was intoxicated at the time of driving. Nope. Just plug in your name and the motorist's name and we're in business.
I understand prosecutors and police wanting fill-in-the-blank affidavits, it allows officers to spend more time on the streets
I mean, all we're asking to do is to perform an invasive procedure on a motorist based on our hunch that she might be intoxicated and the fact that she exercised her right to refuse a breath test. Well, that and we can strap her down if she resists. But, c'mon, why all the hoops?
January 2, 2011
"The morning of December 30, 2010, Fox 26 News began to air footage preparing the public for our initiative, as I addressed the public and presented a "warning and awareness" that our intentions were to increase public safety by removing DWI offenders from our roadways on Galveston Island and a Zero Tolerance No Refusal approach method would be in effect to combat this problem...
"With the assistance of the following agencies the effort was a success:
- UTMB
- Galveston County District Attorney's Office
- District Judge Lonnie Cox
- District Judge Susan Criss
- County Judge John Grady
- The Galveston Police Department Command Staff
- The Galveston Daily News
- Fox 26 News
"Over the last month I have been in correspondence with the listed agencies and the initiative was proven a success.
- Texas Highway Patrol
-- Chad Powers, Galveston Police DepartmentWhat could possibly be more clear as to the role of the judges in these assaults on the Fourth Amendment? It's not the job of a judge to assist in the arrest and/or prosecution of anyone. It is the role of the judge to sit as a neutral arbiter in a legal proceeding. When the police begin thanking judges for assisting in their initiatives, it's time to start questioning the role of those judges in our criminal (in)justice system.
Since most of these DWI cases will be filed in county court as misdemeanors, two of the judges (Grady and Dupuy) reviewing warrants on suppression hearings are two of the judges who volunteered to approve these fill-in-the-blank form affidavits. And just how do you think those rulings are going to go?
Slowly but surely the judiciary is being subsumed into the trial division of the district attorney's office. Maybe it makes for great copy during campaign season. Maybe the voters like it. You know, the voters who either blindly mark R or D on their ballot or think that judicial candidates should sound like they're running for sheriff or DA.
Wednesday, October 5, 2011
Should I bring a pen along?
Last August I wrote about documents I received through an open records request for documents related to No Refusal Weekends in Harris County. See here, here, here and here.
Today it's time to take a trip down the Gulf Freeway to the island to what Galveston County officials have been up to when it comes to making a mockery out of the Fourth Amendment.
Hmmm... how might that conversation go?
Prosecutor: "Judge, I was wondering if you'd like to volunteer to approve and sign search warrants for blood draws during our No Refusal Weekend?"
Judge: "Ordering a blood draw on a misdemeanor case? That's insane."
Prosecutor: "I'll take that as a no. Next!"
An application for a search warrant should be reviewed by a neutral and detached magistrate. Once a judge accepts the pitch from the DA to be a part of the team for a No Refusal Weekend, that judge loses any claim to being detached. Either he was asked to participate or he volunteered - either way, the judge is far from neutral.
And despite "fill in the blank" warrant applications that are long on conclusions and woefully short on facts, these "neutral and detached" judges are more than happy to take pen to paper to authorize the shredding of the last remnants of the constitution.
Today it's time to take a trip down the Gulf Freeway to the island to what Galveston County officials have been up to when it comes to making a mockery out of the Fourth Amendment.
June 27, 2011 -
"Special Crimes Prosecutor Bill Reed has coordinated preparations for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 8 pm through 4 am at the Dickinson Police Department. (Special thanks go to Chief Morales for his hospitality.) Bill has enlisted the cooperation of Judges Lonnie Cox, John Ellisor and Christopher Dupuy to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws."
-- Galveston County District Attorney Jack Roady (group e-mail)The DA's Office has "enlisted the cooperation" of judges to "approve and sign" search warrants authorizing blood draws. As I have stated many times before, if the state is "enlisting" judges to participate in this spectacle, the deck is already stacked against anyone accused of driving while intoxicated. And, yes, that Christopher Dupuy.
Hmmm... how might that conversation go?
Prosecutor: "Judge, I was wondering if you'd like to volunteer to approve and sign search warrants for blood draws during our No Refusal Weekend?"
Judge: "Ordering a blood draw on a misdemeanor case? That's insane."
Prosecutor: "I'll take that as a no. Next!"
August 31, 2011 -
"Special Crimes Prosecutor Bill Reed has coordinated for this event, which will take place in Galveston County this Friday, Saturday and Sunday nights from 11 pm through 4 am at the Dickinson Police Department. Bill has enlisted the cooperation of Judges John Ellisor, Christopher Dupuy and John Grady to approve and sign the blood search warrants, as well as nurses who will be present and ready to make the blood draws."
-- Galveston County District Attorney Jack Roady (group e-mail)Please note, no one is talking about reviewing warrant applications. The judges are there to approve the warrants and subject motorists to an intrusive procedure. This is limited government? Oh, now I understand, they were talking about limiting the authority the judiciary has over the police, not the authority of the state over the individual. That makes so much more sense now.
An application for a search warrant should be reviewed by a neutral and detached magistrate. Once a judge accepts the pitch from the DA to be a part of the team for a No Refusal Weekend, that judge loses any claim to being detached. Either he was asked to participate or he volunteered - either way, the judge is far from neutral.
And despite "fill in the blank" warrant applications that are long on conclusions and woefully short on facts, these "neutral and detached" judges are more than happy to take pen to paper to authorize the shredding of the last remnants of the constitution.
Tuesday, August 30, 2011
Twisting and contorting by the pool
Just when you thought the courts had injected some sanity into the DWI "crisis," an appellate court finds a way make it go away. Take State v. Geiss for instance.
This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.
Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:
This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."
The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:
It would appear that Mr. Geiss had won after all.
But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.
Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).
This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.
Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:
"for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples . . .." It further alleged that "[s]aid property was used to commit the offense [of DUI] . . . a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense."In response to Mr. Geiss' motion to suppress, the trial court threw out the blood test results on the grounds the warrant violated Mr. Geiss' right to privacy under the Florida Constitution, violated the state's implied consent law and violated the state's warrant statute.
This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."
The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:
However, Florida's implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so.The appellate court did, however, find that the language of the state's warrant statute prohibited the state from obtaining a search warrant to draw blood in a misdemeanor case since a warrant can only be used to obtain "property...used as a means to commit a crime." Had Mr. Geiss been charged with a felony at the time the warrant was issued, though, the statute would have permitted a warrant to draw the blood.
It would appear that Mr. Geiss had won after all.
But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.
Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).
Friday, August 26, 2011
It's all about that filthy lucre
If you ever had any questions about how much of a moneymaker DWI is, this article should put them to bed. A lawsuit has been filed in federal court in North Carolina over the bidding process for supplying ignition interlock devices to the state.
First there was Monitech, Inc. who, since 1989, had an exclusive contract with the state to provide the devices. Then came a company called Law Enforcement Associates (with some seriously connected investors) who sought to purchase Monitech and its exclusive contract in 2004.
Monitech declined the offer and alleges the state has retaliated against it ever since. In the meantime, Smart Start got into the game and filed suit to open up the bidding process to other companies.
DWI is a moneymaker for the states and for the companies seeking to profit on the misfortune of others. The almighty dollar has caused lawmakers and judges to disregard the Fourth and Fourteenth Amendments in their pursuit of the most draconian laws ever for an offense that is but one step removed from a traffic ticket.
Prosecutors recruit judges who volunteer to sit around and wait for search warrants for blood to come across their desk (usually at the jail or police station). The prosecutors prepare fill-in-the-blank form warrants replete with conclusory statements passing off as fact. The officer then hands it to a judge who looks for the signature line and signs it. Then it's off to the nurse to get a needle jammed up your arm.
The judge has ceased to be neutral and detached. The judge has become part of "the team."
Damn the Bill of Rights, keep those greenbacks coming.
In its suit, Monitech Inc. says DMV Commissioner Mike Robertson broke state bidding rules by withholding the renewal of its state contract.
Since 1989 the company has been the state's sole provider of ignition interlocks, which test the breath of convicted drunken drivers for alcohol before they can start their vehicles. The devices are often mandated for people convicted of a DWI to keep their driving privileges.
First there was Monitech, Inc. who, since 1989, had an exclusive contract with the state to provide the devices. Then came a company called Law Enforcement Associates (with some seriously connected investors) who sought to purchase Monitech and its exclusive contract in 2004.
Mobley has previously alleged he faced retaliation from DMV officials after he refused in 2004 to sell his business to Law Enforcement Associates, a firm whose investors included then-Senate Majority Leader Tony Rand. The Fayetteville Democrat was co-chairman of the Governor's Highway Safety Program, which oversaw DWI prevention programs.
A close political ally of Rand's, then-DMV commissioner George Tatum, also owned LEA stock with his wife. Tatum was the state official with the ultimate authority to renew Monitech's contract with the state.
More than a dozen elected officials and their family members have owned LEA stock, including former Gov. Mike Easley, current Gov. Bev Perdue and her husband. Records also show that state agencies purchased at least $192,683 in surveillance equipment from the small company, much of it bought without seeking competitive bids.
Monitech declined the offer and alleges the state has retaliated against it ever since. In the meantime, Smart Start got into the game and filed suit to open up the bidding process to other companies.
DWI is a moneymaker for the states and for the companies seeking to profit on the misfortune of others. The almighty dollar has caused lawmakers and judges to disregard the Fourth and Fourteenth Amendments in their pursuit of the most draconian laws ever for an offense that is but one step removed from a traffic ticket.
Prosecutors recruit judges who volunteer to sit around and wait for search warrants for blood to come across their desk (usually at the jail or police station). The prosecutors prepare fill-in-the-blank form warrants replete with conclusory statements passing off as fact. The officer then hands it to a judge who looks for the signature line and signs it. Then it's off to the nurse to get a needle jammed up your arm.
The judge has ceased to be neutral and detached. The judge has become part of "the team."
Damn the Bill of Rights, keep those greenbacks coming.
Subscribe to:
Posts (Atom)