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Can “No Trespass” Signs Keep You Out of Jail?

An upcoming Supreme Court may render “No Trespass” signs useful. Normally, signs forbidding trespassing are useless because the Jehovah’s Witness or salesperson will ignore the sign and knock on your door anyway. In the future though, hanging a “No Trespass” sign outside could keep you out of jail.

In 2013, James Christensen Jr. of Tennessee encountered a pair of local officers in civilian clothing. The officers had just seen James’s girlfriend, because they had received a tip that someone in the neighborhood was creating methamphetamine. James has two “No Trespass” signs, one on his driveway and another outside his house. A third “Private Property” sign lived next to the second “No Trespass” sign. When James saw the officers, he stepped onto his front porch to confront them. James locked the door behind him as he did so. As James spoke with the officers, one of them noticed the smell of meth.

police searchWhen the officers asked for permission to search the house, James told them to leave. Instead of leaving, the officers arrested him and then kicked down the locked front door. After a search revealed several meth labs in his house, James was arrest and charged with resisting arrest, promoting meth manufacturing, and possession of firearms while committing felonies. James was convicted by the trial court and lost his appeal to the Supreme Court of Tennessee. His lawyers have appealed to the U.S. Supreme Court because other states have ruled that “No Trespass” signs are enough to protect a right of privacy against warrantless searches.

The World at Arm’s Length

The 4th amendment prohibits the government from searching a home without a warrant. However, the government can still search a property if the owner gives his or her consent. Courts were divided on exactly how that consent should be given. The Supreme Court ruled in previous cases that police could enter private property and knock on the door to speak with the residents, in the same manner a private citizen could. This “knock and talk” doctrine effectively became an implied consent, whereby the police could assume that they had the owner’s consent to walk up to their front door. In cases like this one though, police have used this implied consent to find probable cause to conduct a search without a warrant. The implied consent to walk up to the door often results in the police finding reasons to break down the door.

This kind of “search” by police destroys the 4th amendment. Police should not be able to legally walk up to a door and then illegally smash it down based on the flimsiest evidence.  Since police can always pursue extrinsic evidence to conduct a search, the best way to prevent this kind of abuse would be to tell ALL visitors to stay away. If a private citizen cannot legally knock on your door, neither can a police officer. This would effectively remove the officer’s implied consent. How can an average American tell the whole world to keep all her lawn?

The easiest way of keeping out any and all visitors is to throw up “no trespass” signs. Most courts agree that this is some evidence that the homeowner doesn’t want to be disturbed, but there is significant disagreement about whether “no trespass” signs alone are enough to withdraw implied consent. Some judges believe a sign is enough to keep the world away; other judges believe that there must be more.

The Ability to Knock On Front Doors Does Not Give Police the Power to Kick Them Down

“Knock and Talk” is entirely built on two assumptions. First, that the public can knock on each other’s door. Second, the police have the same right to knock on doors and talk with people as other private citizens. This doctrine is fine, since police work may often rely on speaking with those who live in the area.

What is not fine though, is if the police take this license to speak with the neighbor to bypass the 4th amendment altogether. The right of the people to be secure in their houses against unreasonable warrantless searches would be irreverent if the police could just walk up to a door and find any reason to tear open the door.  Judges should always ask officers conducting these types of searches: “why couldn’t you just get a warrant and come back?” It is the officer who must respect the citizen’s right to privacy; the citizen has no responsibility to lay out a welcome mat for the police. If we are really “secure in our houses,” the police cannot break down the door just because they think something is wrong while speaking with someone on the front door. The Constitution requires a warrant.

The only exception that should exist is if there is a real emergency. Danger to human life must be a priority. If the officer hears a scream or a plea for help from inside the house that would be sufficient cause to charge the door and search the building. However, the smell of drugs cannot be considered an emergency. Even if the officer fears the suspect could destroy the evidence, he can always radio his department and wait for another officer to obtain the warrant while he watches the house from outside.  Christensen’s case is another example of how the war on drugs is eroding our constitutional rights and the line must be drawn to ensure that “knock and talk” doesn’t become more than that.

Big Brother Can Arrest Robbers by Tracking Their Locations

What if I told you the government had the ability to obtain all your smartphone records and use them to track your every location? Probably nothing, since it doesn’t personally affect you. You might even applaud it, since government prosecutors can use the information to put robbers in prison. But is it worth the risk to our civil rights?

Between December 2010 and December 2012, Timothy Carpenter and about fourteen other conspirators robbed a series of RadioShack’s and T-Mobiles throughout Ohio and Michigan. Carpenter allegedly served as organizer and lookout for the group. In April 2011, police arrested four of the conspirators and one of them confessed to the entire scheme. The conspirator who confessed gave the FBI his cellphone and the cellphones of the other members of the group. The FBI demanded Sprint and MetroPCS, the phone service providers, turn over a list of all cell sites that the phones had been in proximity to for the previous 127 days. The FBI used the list to track the defendants’ every location during the time of the alleged robberies. Since the data revealed that the robbers had been in the stores during the robberies, the defendants were found guilty.

trackingOn appeal to the Sixth Circuit, Carpenter argued that his 4th amendment rights had been violated because the FBI and the government had obtained private information without a warrant. The Sixth Circuit affirmed the guilty verdict, though the judges disagreed on whether new technology automatically raised 4th amendment questions. The case is now pending before the Supreme Court.

Does Cell Phone Number Privacy Exist?

Carpenter’s defense is mostly based on the existence of cell phone number privacy.  Does the government need a warrant if they want to view your contacts list on your cell phone? With traditional landline phones, the court had ruled that people lacked a reasonable expectation of privacy in dialed telephone numbers because the information was conveyed to third parties.

Arguably, that same conveyance of information to third parties exists with cell phones. I can’t expect my call to my parents to be private if Sprint or MetroPC have records I made the call. The contents of the phone might be private, as I wouldn’t expect Sprint or MetroPC to be listening in while I’m talking with them. However, Sprint or MetroPC would have records that I called them, so the mere fact that I called them would not be private information unless obtained with a warrant.

The issue is that this information is being used a way that reasonable Americans probably wouldn’t be able to anticipate. If the FBI only wanted the information to show that Carpenter knew the other fourteen other conspirators, this would not be a Supreme Court worthy case. Instead, the FBI is using the cell phone data to create map whereby they can determine exactly where the defendants were or had been. This is less like the FBI seeing who I called recently and more like an FBI agent following me around everywhere for 127 days. The only question is whether the FBI agent needs a warrant to follow me around. If the answer is “YES!”, then the FBI should also have a warrant before generating their map tracking wherever defendants go.

Yes, You Can Steal a Car in Minnesota Without Moving It

During winter, the temperature drop in Minnesota can paralyze most vehicles. Each morning, J.V. would start his car and leave it in the driveway before leaving for work. One morning in 2016, J.V. spotted a stranger knocking on his front door. Suspicious, J.V. called the police. An officer arrived and found the man, later identified as Thonesavanh, sitting in J.V.’s car. The doors were locked and the headlights had been turned on, but Thonesavanh hadn’t moved the vehicle since J.V. started it. The officer persuaded Thonesavanh to step out of the car and arrested him.

Thonesavanh was charged with theft of a motor vehicle. The trial court dismissed the charge, since Minnesota defined theft of a vehicle as “taking or driving a motor vehicle” and there was no evidence that the defendant had moved the car at all. The appeals court confirmed the verdict, though it noted that the word “taking” was ambiguous. Taking could either mean “moving or transporting” or “having possession of.” The Minnesota Supreme Court took up the case, ruling that “taking” meant having possession. The state Supreme Court’s ruling means that Thonesavanh would be guilty of theft of a motor vehicle without ever moving it.

minnesotaThe Expansion of Law

Many courts believe that no words in laws should be surplusage – that is, every word in a statute should mean something and that there are no extra or redundant words. If the Minnesota Supreme Court reads “taking” to mean “moving or transporting,” then “taking” would be redundant since it would be mean the same as “driving.” With that logic, “taking” could only be the other applicable definition, “having possession of.”

Since Thonesavanh was sitting in J.V.’s car without his consent, Thonesavanh had locked the doors and turned on the headlights, adjusting the vehicle according to his wishes. With the doors locked, Thonesavanh was in control of the vehicle and was preventing J.V. from using it himself. Effectively, Thonesavanh was in possession of the car. Thonesavanh hadn’t moved the car but he had done everything possible to assert his control over it.

It might seem exhausting, elitist, and frankly boring, to spend four paragraphs arguing over the definition of a common English word like “taking.” However, this much word usage is necessary because the definition of “taking” was literally the difference between a guilty and non-guilty verdict. More importantly, these types of arguments are the difference between guilty and non-guilty not just for Thonesavanh, but for any other individuals arrested for theft of a motor vehicle in Minnesota.

What are the Implications of a Case Like This?

This process of arguing over the meaning of a single word or phrase can have enormous consequences. In cases like Thonesavanh, it separates a man from freedom and jail. In the big picture, these kinds of arguments over the meaning of a word also lead unintended consequences. Although the doctrine of surplusage is intended to ensure that judges don’t ignore the words written by the legislature, giving words different meanings can also lead to meanings that the lawmakers never intended either. When that happens, it is the people who suffer from good judicial intentions gone awry.

Destroying Confederate Statues in North Carolina Leads to Felony Charges

In the wake of the violent “Unite the Right” in Charlottesville, there have been a series of counter protests where Confederate statues are torn down. The term “Confederate statue” is a bit of a misnomer since most were put up during Jim Crow and the 1960’s. An enormous number of these statues were put up in and around the 20’s by a group called the United Daughters of the Confederacy.

Many of these statues were put up in North Carolina, the state has the second most Confederate monuments in the nation. These statues are also quite unlikely to be removed by local governments due to a North Carolina statute, passed in 2015, which forbids removing Confederate statues without approval from the state. With this in mind, perhaps it’s no surprise that Durham, NC has been the center of one the most publicized incidents of a statue being destroyed. Dunham used to have a statue of a uniformed Confederate soldier boasting a Confederate flag and an engraved pedestal reading “In memory of the boys who wore gray.” The statue was not constructed until decades after the Civil War, being put up in 1924 during the height of Jim Crow. A few weeks back, this statue was pulled down by a group of protesters. Video shows the statue crumpling instantly after it is pulled down-this is because these statues were mass produced very cheaply during the 20’s by a company known as the McNeel Marble Company.

At the protest itself, the police hung back and allowed the protest to continue-citing an admirable stance that statues can be replaced but lives cannot. The protest itself was not violent-unless you count the violence done to the statue-an nobody was injured. After the protest, however, the police began using footage from the event to begin making arrests. The first to be arrested was the woman who actually pulled down the statue-Takiya Thompson. The 22 year old woman stood by her actions-citing the need to destroy statues honoring a history of slavery and racism-however she is facing a number of misdemeanor and felony charges-disorderly conduct by injury to a statue, damage to real property, and-the felony charges-participation in and incitement of others to riot with property damage in excess of $1,500. These crimes can carry up to several years in prison.

confederate statuesAfter the arrest, the police made it clear that they were going to arrest several more participants in the protest. In response, several hundred people lined up in front of the Dunham to “confess” to their involvement in the destruction of the statue. Ultimately, the police used video from the protest to arrest seven more protestors and charge them with the same crimes facing Ms. Thompson.

These are serious charges facing the Dunham protestors and the truth is there is a strong case against them. It’s likely that they acted knowing the potential consequences but still chose to destroy the statue as a matter of principle. Either way, it’s worth understanding the law here in order to, if you want to protest, protect yourself as much as possible.

Understanding the Law Around Rioting

Rioting is defined a little differently depending on which state you live in. However, the definitions tend to be fairly similar. A riot usually is any situation where two or more people disturb the peace through either the use or threat of force, violence, or destruction or burning of property. Where somebody does this as part of group sufficient to constitute a riot, they have participated in a riot.

Incitement to riot is generally urging others to do the above. However, there are some additional requirements before you can be found guilty. First, your urging must be done in a situation where it produces an immediate, real, chance that you’ll actually convince people to riot. Second, you have to actually intend to cause a riot-it isn’t enough to say something that causes a riot if that is not your goal. It is worth noting that you have to actually be convincing people to riot. Courts have ruled that it is not enough evidence to convict where you are doing something like throwing rocks at the police-although throwing those rocks would likely lead to much more serious criminal charges.

North Carolina’s rioting laws are very similar to this usual format. They require at least three people before something can be called a riot and enhance the penalties if somebody is badly hurt, property damage exceeds $1,500 (as with the statue), or the riot participant charged possessed a dangerous weapon or substance.

The statue was worth over $1,500, thus the felony enhancements even thought the protest was non-violent. There were also many more than three people there. The participation in a riot charges against these eight protesters are going to be hard to fight.

The incitement charges, on the other hand, require quite a bit more specific evidence to establish. This could leave these protesters with a bit more wiggle room. The charges will hinge on what can be seen and heard in the video taken of the protest and witness testimony.

A History of Racism is Not Worth Preserving

These protesters broke the law. The police are doing their jobs by arresting them. From a legal standpoint, it would be irresponsible to recommend any illegal course of action. However, with that being said, why are we preserving these Confederate statues? Some cite their historical importance and the heritage they represent. Do we really want to honor our history of slavery with heroic war statues? It’s indisputable that a desire to preserve the practice of slavery was a central motivation-if not the exclusive motivation-behind the Confederacy and the Civil War as a whole. Even North Carolina’s governor, Roy Cooper, has expressed a desire to remove the statues and a frustration over laws blocking him from doing so.

Those who have been arrested in Dunham broke the law. However, what they did is something we should be encouraging our politicians to do through legal means anyway. In statements to the media Takiya Thompson-the first to be arrested and the person who pulled down the actual statue-has stated that she and those with her were tired of waiting for local politicians to get around to removing the statues themselves. Can we blame her for being upset that a monument to racism stood for nearly a century without removing it?

Civil Asset Forfeiture Must be Done by the Book

Americans on both sides of the political aisle have worked to limit the usage of civil asset forfeiture.  For those who don’t watch John Oliver or read the Federalist, civil asset forfeiture is the legal process where police can seize assets suspected of aiding criminals. Law enforcement have seized assets even when there is no criminal conviction and those assets are given to the agency that seized the property. The agencies use the money for both legitimate and illegitimate reasons, such as bulletproof vests and slush machines.

Liberal and Conservative groups alike have worked hard to limit the abuse of asset forfeitures, the cabinet appointment of Jefferson Beauregard Sessions III notwithstanding. Most Federal asset forfeitures now require a conviction before property can be seized. However, a new case before the Supreme Court threatens to undo what little progress has been made towards asset forfeiture. This time though, the threat comes from the courts rather than an overzealous Attorney General.

In 2014, Henry Lo was indicted for wire fraud, mail fraud, device access fraud, and embezzlement of funds from a former employer and former girlfriend. The indictment included a potential asset forfeiture of Lo’s residence and six bank accounts if convicted. Lo plead guilty to wire and mail fraud, including a scheme where he enriched himself by $1,700,000. However, prosecutors neglected to include any mention of asset forfeiture in its plea agreement and the judge did not make any mention of it at the sentencing hearing. The government only asserted forfeiture when the U.S. Probation Office requested $2,244,384.39 in forfeiture. Instead of tracing the stolen property, as required by statute, the government only asserted that property seizure was “appropriate.”

civil asset forfeitureOn April 9, 2015, Mr. Lo was sentenced to a term of 70 months imprisonment, three years of supervised release, and restitution for $2,232,894.39. On appeal, the government conceded that federal law does “not expressly authorize personal money judgments as a form of forfeiture,” but that “nothing suggests that money judgments are forbidden.” Nevertheless, the Ninth Circuit affirmed the ruling, finding that since civil forfeiture furthers the cause of combating illegal drug trade, it was appropriate to seize the defendant’s money.

Civil Asset Forfeiture Should Only Be Used In a Manner Prescribed by Congress

 To summarize everything above, the defense is arguing that Congress only permits asset forfeiture in wire and mail fraud cases when the prosecution can trace the property or funds back to the crime. Any deviation by the judiciary from this procedure is a violation of the separate of powers, as judges have no power to create criminal punishments.

The legal requirement that the prosecution trace the property back to the crime is an important procedure. If the prosecutor cannot show how a property was used to commit a crime or how a defendant benefited from the crime, then law enforcement would not be seizing the property; they would be stealing the property. In this case, Lo plead guilty to gaining $1,700,000 by fraud. That money does not belong to him and the government has a right to reverse all of Lo’s gains. If Lo used the money to purchase a house in Florida, then the government has the right to seize that house. However, the prosecution must prove that Lo actually used a portion of the illegally obtained money to purchase the home in Florida. If Lo would have owned the house regardless of whether he committed the crime, then the government has no right to the house.

Civil liberty groups have largely succeeded in reforming forfeiture so that the defendant actually has to be guilty for his property to be taken. However, it is still not legal or morally right to take property from a convicted criminal merely because he owns the property. Without the tracing requirement, police could take property unrelated to the crime. They could also take any property from the defendant without limit. Just because a criminal defendant steals from a victim does not give the government to steal from the defendant.

The Importance of Judicial Restraint to Liberal Values

So far, I’ve only talked about the Lo case in relation to asset forfeiture. However, this case should show liberal voters and politicians the importance of judicial restraint. The defense for Lo is a textbook of judicial conservative talking points, with emphasis on separation of powers and the limited role of federal judges.

However, these talking points are now being used in service of important civil liberties, such as the limitation of asset forfeiture. Although limiting forfeiture is a bipartisan goal, liberals should realize that stopping judicial activism might be more beneficial in the near future. With a political conservative majority on the Supreme Court and with Mr. Trump appointing more political conservatives to the federal bench, liberals might not be able to rely on the third branch as they have in the past.

With America and its parties slowly realigning itself, liberals should be prepared to argue that the courts should be restrained and checked. If the federal government is dominated by Attorney Generals and judges who want to expand the executive branch’s power, then the only way to protect the civil liberties of Americans will be to adopt former conservative arguments regarding judicial activism. Strict adherence to the constitution, including the limitation of all three branches of the federal government, will be the best line of defense against entrenched conservatives like Jeff Sessions. With the political atmosphere as it is today, a strict reading of the constitution may be the only defense the nation has against the destruction of civil liberties.