SCOTUS has one more for the road

Lorenzo and Jose Navarette were minding their own business driving a truck down the highway with 30 pounds of marijuana in the bed of the truck. At some point an anonymous driver called 911 and reported that the Navarette's truck had almost run her off the road. The 911  message was relayed to sheriff's deputies in Humboldt County who stopped the truck - after following it for some five minutes without observing any suspicious driving behavior.

The officers, naturally suspecting that Mr. Navarette was driving while intoxicated in the middle of the afternoon detained the brothers so they could conduct a DWI investigation. During the course of the investigation they came across the stash of weed in the back of the truck. The stop quickly changed course from a DWI investigation into a felony dope investigation.

At trial the court denied the Navarette's motion to suppress the marijuana and the brothers pled guilty and received 90 days in jail plus three years probation.

Now let's make certain we have a couple of the pertinent facts straight. First, the motorist who called 911 never left her name. Second, the anonymous driver never said she thought Mr. Navarette was intoxicated - only that he almost ran his or her car off the road.

On appeal the appellate court determined that there was sufficient corroboration in the fact that the police located the truck near the area the anonymous caller told them it was and that the anonymous caller got the license plate number correct. The appellate court then made the leap of logic that the driving behavior described by the unidentified 911 caller rose to the level of reasonable suspicion.

Of course we know what really drove the appellate court's decision-making process: the defendants had dark skin, funny names and a whole lot of weed in the truck. It was yet another example of courts making rulings based on the outcome and not the process.

Yesterday the US Supreme Court handed down its opinion in Navarette v. California, 572 US _____ (2014). And, not surprisingly, held that the stop met constitutional muster because the information provided by a caller who remains nameless was somehow corroborated when the officer saw the truck on the highway and because the driving behavior just screamed out that Mr. Navarette was intoxicated.

The Court went on to say that the fact that the call was made so near the time of the alleged driving behavior (according to the unnamed motorist) indicated that our Friend With No Name hadn't had sufficient time to make up the story. It just had to be true.

The decision is yet another broadside blow to what remains of the Fourth Amendment. It is also part of a line of cases that make a mockery out of a defendant's right to confront the witnesses against him. When was Mr. Navarette permitted to cross-examine the nameless caller? When was he allowed to probe for reasons the driver might make up, or exaggerate, an incident on the road? The officer certainly couldn't testify as to what driving behavior he witnessed that made it apparent that Mr. Navarette was intoxicated.

Justice Antonin Scalia summed it up best in his vigorous dissent:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunken­ness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s. 

At least it's not a needle

Police arrest suspect. Police take suspect to jail. Police take suspect's fingerprints when he is booked in for identification purposes. Police collect other scientific evidence for use in solving cold cases.

What's wrong with this picture?

According to Supreme Court Justice Anthony Kennedy and four of his fellow justices, not a damn thing. You see, there's nothing overly intrusive about it. Just take a giant Q-tip and roll it around inside someone's mouth and you have instant DNA sample. No one is getting strapped down. Nothing is being injected in someone's body. And, best of all, now you have a DNA sample you can enter into a database to see if your new guest is implicated in any other crimes that have gone unsolved.

It is so strange, at times, to agree with Antonin Scalia. But, when it comes to Fourth Amendment issues, his goofy textualist philosophy generally works in favor of the accused. Justice Scalia wasn't concerned with the intrusiveness of the collecting of the sample. He didn't care if it was convenient. Justice Scalia had a problem with the fact that the sample would be used as evidence in investigating other crimes.

Oh, did I forget to mention the samples in question were taken without a warrant?

Yesterday the Nine in Robes decided by a vote of 5 to 4 in Maryland v. King, 569 US ___ (2013), that there was no need for the government to obtain a warrant to collect a DNA sample from someone arrested for a crime. Not convicted, mind you, just arrested.

The decision raises questions on various levels. First, since when do we equate a DNA sample to a booking fingerprint? The purpose of fingerprinting those arrested and jailed is for identification purposes. Down the road, should that person be convicted and find themselves on the wrong side of the iron bars again, that fingerprint card from the first arrest and conviction can be compared to the new card to identify those folks who have prior convictions are who are subject to enhanced sentences.

The fingerprints are also loaded into statewide and nationwide data bases that allow law enforcement agencies to compare fingerprints found at the scene of a crime to those taken of folks charged or convicted of various crimes.

The DNA evidence in this case would constitute scientific evidence that could be used against the arrestee in any other case in which there is a hit on his sample. The sample isn't being used for identification purposes, it's being used for investigative purposes. It is being obtained without the slightest showing of probable cause.

This decision, and all the other 5 to 4 decisions in matters concerning our rights under the Bill of Rights, raises questions about the reverence judges pay to the principle of stare decisis. If we are going to use these cases decided by one vote as precedent on which to base our rights, shouldn't we be concerned that in this vast democracy, a right was defined by one person who was not elected and is not accountable to the citizenry?

Furthermore, if a case is decided by but one vote, what does that tell us about the strength of the precedential power of that case? Knowing that the same facts could just have easily led to a different decision if the composition of the court was changed by one justice, should we rely upon those decisions to the same extent we rely on unanimous (or near-unanimous) decisions?

There is nothing magical about the nine who sit in Washington. They are men and women who have decided, based on nothing more than their own political beliefs, that they each know the correct method of interpreting a document written in the late 19th century - a document whose authors could never have imagined how much things would change over the course of 200 years.

Who's to say that Justice Scalia's textualism is any better than the idea that the Constitution and Bill of Rights are living documents that must change with the times? And where does the doctrine of original intent fit in? Does it really make sense to try to analogize the items of our modern society to the items at hand in 1800?

Right to counsel? What right to counsel?

Earlier this week the United States Supreme Court took a whack at a citizen accused's right to counsel in its decision in Montejo v. Louisiana, 554 US ___, No. 07-1529 (2008).

Mr. Montejo was charged with first degree murder and an attorney was appointed for him at a preliminary hearing. Later that day police read Mr. Montejo his Miranda rights and asked him to accompany them on their search for the  murder weapon. Mr. Montejo agreed. During the trip, Mr. Montejo wrote a letter of apology to the victim's family that was introduced into evidence, over his objection, at trial. Mr. Montejo was convicted and sentenced to death.

On appeal to the Louisiana Supreme Court, Mr. Montejo's attorney argued that since counsel had already been appointed for Mr. Montejo at the preliminary hearing, the police violated his constitutional right to counsel by asking him to accompany them on their excursion and that, as a result, the incriminating letter should have been suppressed at trial. The state supreme court disagreed and upheld the conviction on the grounds that the right to counsel only attaches once a defendant has made a request for counsel -- and, since Mr. Montejo did not make such a request at the preliminary hearing, the right defined in Michigan v. Jackson, 475 US 625 (1986).

Justice Scalia, in the Court's opinion, wrote that Louisiana's interpretation of the law was impractical because about half the states will appoint counsel for an indigent defendant whether he makes a formal request or not. He also wrote that Mr. Montejo's position was untenable because the rule in Jackson was designed to prevent the police from badgering a defendant into changing his mind regarding his invocation of his right to counsel.

Justice Scalia argues that in Mr. Montejo's case, since he stood mute at the preliminary hearing there is nothing to indicate that he would be opposed to the idea of speaking to the police without the presence of counsel. He argues that by remaining silent, Mr. Montejo had obviously not yet made up his mind to invoke his right to counsel.

"Any criminal defendant learned enough to order his affairs based on the rule announced in Jackson would also be perfectly capable ofinteracting with the police on his own." - Justice Scalia, Montejo v. Louisiana

Of course, Justice Scalia is assuming that most criminal defendants are aware of the entire breadth of their constitutional protections.

"The principal cost of applying any exclusionary rule “is, of course, letting guilty and possibly dangerous criminals go free . . . .” Herring v. United States, 555 U. S. ___, ___ (2009) (slip op., at 6). Jackson not only “operates to invalidate a confession given by the free choice of suspects who have received proper advice of their Miranda rights but waived them nonetheless,” Cobb, supra, at 174–175 (KENNEDY, J., concurring), but alsodeters law enforcement officers from even trying to obtain voluntary confessions. The “ready ability to obtain unco-erced confessions is not an evil but an unmitigated good.” McNeil, 501 U. S., at 181. Without these confessions, crimes go unsolved and criminals unpunished. These are not negligible costs, and in our view the Jackson Court gave them too short shrift." -- Justice Scalia, Montejo v. Louisiana

So now we are reduced to a balancing test when it comes to whether or not the right to counsel is to be observed. Silly me, I always understood our 5th and 6th Amendment rights were there to protect the individual against the overwhelming might of the state.

Ours is an adversarial system and one's basic protections should not be weighed against the inconvenience it would cause those seeking a conviction.

What do you think?