Tag Archive for 'search'

Supreme Court Upholds Strip Searches For Any Crime

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As you’re probably aware, the Supreme Court is soon going to rule on a case that I’ve heard is kind of a big deal.

But this Supreme Court term has been marked by several other important cases that, in any other year, probably would have gotten front billing on the law blogs. For example, a few days ago the Supreme Court upheld a policy implemented by New Jersey jails that requires full strip and body cavity searches of everyone who is arrested and processed at the jail, no matter how minor the crime for which they were arrested.

And remember, at the point where a person has been arrested and booked at the local jail, they usually haven’t yet been convicted of a crime, or even formally charged with one. And, as I’m sure you know, we have a principle in the American legal system that’s often referred to as “innocent until proven guilty.” That generally means that a person can’t be punished or subjected to undue hardship in response to an alleged crime until and unless they’re convicted.

Obviously, there are some commonsense balancing acts that need to be performed: a suspect can be held in jail while they’re on trial if they’re deemed to be a threat to the public, or a flight risk. Also, measures to protect the safety of jail personnel and other inmates can be taken, including searches and confiscation of any items that might be considered dangerous.

However, this ruling appears to shift that balance sharply in favor of law enforcement even more than it already was.

Personally, I think that this decision was probably unnecessary. Jail authorities already have a good deal of discretion to search anyone who’s incarcerated if they have even the slightest reason to believe that they might be smuggling weapons or contraband into the jail. Likewise, any hint that the inmate might pose a safety threat to jail staff or other inmates can be grounds for a complete search.

However, the justices who dissented in this case noted that people arrested for relatively minor crimes, like shoplifting or DUI, are generally perpetrated by people who pose no significant threat to society, and are usually nonviolent. Also, those crimes are almost never premeditated, meaning that the people who commit them don’t wake up in the morning anticipating that they’ll be in jail before the day is out.

All this adds up to the obvious conclusion that someone who’s arrested for a minor crime committed on an impulse has almost certainly not gone to any lengths to conceal weapons or drugs in their body cavities, or anywhere else on their person.

Of course, some people will argue that the fact that a person “almost certainly” doesn’t have a weapon means that “there’s still a chance!

But the liberties that many of us take for granted all come at a cost: for every freedom we enjoy, there’s going to be a few people who will abuse that freedom. For example, we could probably reduce domestic violence and many other types of crime by installing surveillance cameras in every home. But we aren’t going to do that, nor should we. As a society, we’ve decided that the right to privacy is worth the cost that comes with the fact that it’s relatively easy for people to commit crimes in their own homes.

Likewise, I don’t think there’s anything inherently wrong with accepting the much, much smaller risk that a person arrested for shoplifting has a weapon hidden in a body cavity, in exchange for the right to not be subjected to such indignity as a matter of course, even before you’re convicted, or even charged, with no particular suspicion that you’re even trying to smuggle something into the jail.

So, although the Supreme Court has said that this practice is permitted under the Constitution, I hope that authorities in other parts of the country refrain from adopting it. Again, this is not to say that intrusive searches are never justified. Obviously, any reasonable suspicion that a person might be smuggling something into the jail would be grounds for that type of search.

I think this whole case illustrates a serious problem that’s come up in recent years: if you come out in favor of civil liberties, you’re accused of being “soft on crime.” And no politician or judge wants to give that impression. And once a measure like this is implemented, it’s very unlikely to be discontinued. For example, even though there’s ample evidence that most of the “security” measures taken by TSA are extremely costly, and do little to nothing to make flying any safer, there’s virtually no chance that any of them will be discontinued. Why? Because somebody would actually have to make the decision to do so.

And the next time there’s a significant security breach, whoever chose to “loosen” security would probably get the blame for it, regardless of the actual cause.

I don’t pretend to have an answer to this problem. I’m not disputing that we sometimes need to balance freedom and security. But maybe, just maybe, we could use a little more common sense when doing that balancing act.

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Police Need a Warrant for GPS Tracking

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The U.S. Supreme Court’s 2012 term will likely go down in history as one of the most important and eventful Supreme Court terms in decades. It is hearing cases having to do with healthcare, immigration, and many other important topics.

And today, the Court delivered a very interesting and important decision about the 4th Amendment right to be free from unreasonable searches and seizures: it has held that, for police to place a GPS tracker (or, presumably, any other device capable of tracking a car’s location), they must obtain a search warrant. In a rare unanimous ruling, the Court held that tracking a car with a GPS device is a “search” for the purposes of the 4th Amendment. The opinion can be found here (.PDF).

The surreptitious use of tracking devices has been a very important tool for law enforcement for decades. It allows the police to see where a suspect’s vehicle is driven, and when. Obviously, this information can prove extremely useful in some criminal investigations.

The 4th Amendment to the constitution enshrines the right of individuals to be secure from “unreasonable search and seizure,” and it says that search warrants cannot be issued without probable cause. Note, however, that it does not say when a warrant is required to conduct a search, or even if a warrant is required. However, over the years, the courts have carved out a rule that seems to work pretty well: a search conducted without a warrant is presumed to be unreasonable, and therefore unconstitutional, with a few very specific exceptions (consent from the owner or resident of the property to be searched, for example).

So courts often have to determine whether or not a particular act constitutes a “search” for the purposes of the 4th Amendment. For example, courts have ruled that using infrared cameras to peer inside a person’s house constitutes a “search,” and therefore requires a warrant. On the other hand, they have held that a police officer walking by a house, and happening to see illegal activity through a window or open door, does not constitute a search, and that information obtained via such means can be used in court whether or not there was a search warrant.

So, does tracking a car via GPS constitute a search? The Court said yes. Writing for the Court, Justice Scalia boiled down his position to this: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.  We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted. “

The court seems to be focusing on the fact that, in order to obtain this location information, the government had to make a significant intrusion into the private property rights of the defendant. It spent less time dwelling on the question of whether or not the defendant had a reasonable expectation of privacy with respect to his car’s location on a public road.

The Supreme Court has noted that their 4th Amendment analysis doesn’t rest entirely on the law of property. For example, an overnight houseguest at your home has the exact same 4th Amendment rights with respect to the belongings he has in your home as you would. This is the case even though he has no property interest in the home being searched. Instead, it’s the defendant’s privacy rights that the court is looking at.

However, that does not mean that property rights can’t enter the equation, as illustrated in this case.

So, what does this mean? Well, it shows that, when it comes to privacy rights with respect to the 4th Amendment, there is a lot of common ground on a Supreme Court that seems defined by 5-4 decisions falling along predictable ideological lines. Although the Justices differed on their precise reasoning, this very pro-privacy decision was unanimous.

While I’ve been critical of some of the trends the Supreme Court has been taking in recent years, the Roberts court has been pretty consistent in upholding the 4th Amendment. And this is a trend that we should all be happy about.

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Do Home Inspections by Drug-Sniffing Dogs Require a Search Warrant?

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I’ve said before that the Supreme Court’s upcoming term may prove to be the most important one in decades – the court will be resolving an unusually-high number of extremely important cases. The Court has just added another interesting (though, admittedly, not earth-shattering) case to its docket. The case is called Florida v. Jardines, and the issue is simple: can police use a drug-sniffing dog at the front door of a private residence, to smell the interior of the residence looking for illegal drugs, without first obtaining a search warrant?

It’s actually quite surprising that this issue is just now being resolved. After all, way back in 2001, the Supreme Court decided Kyllo v. United States, holding that using an infrared camera to look into a suspect’s house from the outside constitutes a “search” under the 4th Amendment, and therefore requires a warrant. And police dogs have been around a lot longer than infrared cameras. One would think that this issue would have been resolved decades ago. But, it hasn’t, and soon it will be.

This is an interesting case, and, like many that have come before it, it hinges on whether or not a particular intrusion into a person’s privacy constitutes a “search” for the purposes of the 4th Amendment. The 4th Amendment to the Constitution enshrines one of the most important freedoms that Americans enjoy: the right to be free from arbitrary and unreasonable searches of their private property, especially their homes. This right exists to protect privacy, and limit government power.

Of course, the people who wrote the 4th Amendment recognized that the authorities sometimes need to conduct searches of private homes when they have good reason to believe that the house contains illegal items, or evidence of a crime. For that reason, there is a procedure whereby police can search private homes. With a few exceptions, authorities need to get a search warrant before they can search a home, and a judge can only issue a search warrant if there is “probable cause” to believe that the thing the authorities are looking for is there. This is not a high standard of proof, but it does require the authorities to demonstrate that they have a good reason to believe that they’ll find what they’re looking for at the place to be searched.

Some minor intrusions into personal privacy, however, are not considered “searches,” and therefore do not require a warrant. The question in this case is whether or not a dog standing on a doorstep, and smelling the air inside the house to detect contraband, constitutes a search.

Federal and state courts generally haven’t found any fault with the use of dogs to search automobiles that have been pulled over or luggage at airports, and other semi-public places. However, these are both situations in which your reasonable expectation of privacy is significantly reduced. While the police can’t perform searches in these contexts willy-nilly, they generally do not need search warrants, and a fairly low level of suspicion is required in order to validate a search in these situations.

But private homes are supposed to be sacrosanct. Unless the police are responding to an immediate emergency, or a resident consents to a search, they have to go to a court and get a warrant before they can search a home. And a warrant can only be granted if the authorities convince a judge that there is probable cause to justify a search. Up to now, a dog standing outside a home, and signaling the presence of contraband inside the home, has commonly served as the probable cause needed to secure a warrant. But, is that dog sniff a “search” which itself requires a warrant?

The case that’s probably most instructive is the one I already briefly mentioned: Kyllo v. United States. In that case, the police used a thermal imaging camera to look for “hot spots” on a suspect house – areas which were radiating more heat than the rest of the house – indicating that marijuana is being grown in one of the houses (the cameras are detecting the heat given off by the lights necessary to grow a large number of plants indoors).

The Supreme Court ruled that using a light-sensing camera to obtain information about what’s happening inside a house constitutes a search, and therefore requires a warrant.

A dog smelling the air outside a house, looking for signs that contraband is hidden in the house, seems analogous. However, this technique has been used by police far longer than heat imaging cameras, for obvious reasons. Police departments have come to rely on this technique to obtain the probable cause necessary to secure a search warrant. And we aren’t just talking about illegal drugs, either. Dogs can be trained to smell explosives, allowing them to tell if a house or apartment is being used by bomb-makers or terrorists, so a lot more can be at stake than catching pot growers.

I’m actually pretty torn as to how the court should rule in this case. On one hand, I think the right to privacy is an essential element of a free society. On the other hand, I recognize that the use of trained dogs has long been a valuable (and adorable) method of detecting and preempting crime. Disrupting the use of this valuable tool could have unforeseen consequences.

Whatever the result, you can bet that I’ll be watching this case closely, and will probably revisit it as it develops.

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Turning Off Screensaver to Look at Suspect’s Facebook Wall: A 4th Amendment Search

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Come Back With a WarrantSuppose the police come over to your house, because they suspect that you have made Internet postings threatening violence. You invite them into your house (eliminating the need to obtain a warrant to enter your home), and they begin looking around your room. One officer sees that your computer is in its screensaver mode, and he moves the mouse or presses a key, causing it to come out of that mode. He is then able to plainly see your Facebook wall, where you have made posts threatening to commit violent acts.

Does this constitute a “search” under the 4th Amendment? According to at least one court, it does (also reported here).

This is a very interesting case, and illustrates the difficulties that can occur when values we have held dear for centuries (a right to privacy, for example) and the legal means we use to protect them (the 4th Amendment’s protection against unreasonable search and seizure) are transferred into the digital world. After all, privacy didn’t suddenly become less important when we started storing much of our private information on computers. And the right to be free from unreasonable searches and seizures didn’t cease to be a good means to protect our privacy, either.

However, the nature of digital information does complicate things at a practical level. Digital information is fungible, meaning that it can be moved freely between different devices. Furthermore, social media seems to have significantly altered our expectation of privacy when it comes to the internet.

Before continuing, I should provide a basic primer on the law of the 4th Amendment. The 4th Amendment prohibits “unreasonable” searches and seizures. It also lays out the conditions under which a search warrant may be issued. It does not, however, say what makes a search unreasonable, or when a warrant is even required to conduct a search. As is often the case, the courts have had to fill in the blanks.

Over the years, a general framework has emerged: any “search” is any intrusion into an area of a person’s life (whether the intrusion is physical, such as by entering a house, or intangible, such as intercepting an email) in which they have a reasonable expectation of privacy. Any search conducted without a warrant is presumed to be unreasonable. This means that, in the majority of cases, in order to conduct a lawful search, the authorities need to obtain a search warrant from a court, by demonstrating that they have probable cause to believe that the evidence they’re looking for will be found at the location they’re searching. There are a few exceptions, however. Generally, when a person consents to a search of their property, or there are circumstances that make getting a warrant impossible (hot pursuit, or other emergency, for instance), a warrant isn’t required.

In this case, it appears that none of the exceptions to the warrant requirement applied. So, the main question the court had to answer is whether or not the officer’s conduct constituted a “search.” If it does, a warrant would have been required. If not, no warrant would be needed. Because the officer didn’t have a warrant, the question of whether or not the evidence could be used in court hinged on the “search” question.

The court reasoned that this does constitute a search, though it seemed to wrestle with the question quite a bit, noting repeatedly in its opinion that this is a close call.

However, I agree with the decision that the court ultimately arrived at.

You can reasonably argue that we’ve truly been in the “information age” for about a decade. But, no matter when you believe it started, there’s no doubt that the information age is upon us, and virtually every aspect of society, from how we do business, to how we interact socially, to how we view privacy. The law, as a reflection of a society’s values, needs to evolve in order to match this new reality. In general, the law is doing a decent enough job of adapting to the digital era, even if this adaptation is a bit slower than some would prefer.

One of the key points of this case is that there can be a search, for 4th Amendment purposes, of a person’s property even if there is no physical intrusion. When the 4th Amendment was drafted, the only way to “search” a person’s property without physically intruding was to look through their window.

Obviously, the information that could be gleaned from such a search was usually very limited, and didn’t really concern the framers of the 4th Amendment. Nowadays, however, we have infrared cameras that can see through walls, devices that can listen in on phone calls and monitor email, and software that can monitor everything that’s done on a personal computer, all without a single personal encounter with the suspect.

Ultimately, accessing information on a personal computer breaks the barrier between public and private. A computer should be viewed as a virtual file cabinet (one that happens to have effectively unlimited storage capacity), and accessing any information stored on it, unless it is already in plain view during the search (visible on the screen before the officer manipulates the computer in any way).

This does raise the issue of what would happen if the officer had accidentally (for real, I swear!) bumps against the desk, which moves the mouse and takes the computer out of screensaver mode, and then views what’s on the screen. However, I think we should err on the side of presuming that any information a police officer collects is the result of deliberate conduct on his or her part, to discourage police officers from having “accidents” that just happen to give them access to an area outside the scope of their search.

While consistent and strict application of the 4th Amendment might sometimes lead to seemingly unjust results, and almost certainly allows some guilty parties to go free, I believe that that’s a fair price to pay for freedom.

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Irony Alert: TSA Agent Sues Passenger for Intentional Infliction of Emotional Distress

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If you’ve flown in the last 10 years, you’ve dealt with the Transportation Security Administration (TSA). They’re the government agency that was established after 9/11 to take over security screening at airports, which used to be handled by airlines (though it was regulated by the government).

Over the last 10 years, their security procedures have become increasingly invasive of passengers’ privacy. In the latest controversy, major airports have installed machines that can see under a person’s clothes, revealing every object they have on their person, including non-metallic objects that metal detectors miss.

Because of privacy and health concerns (some people are worried about the radiation exposure, though, from what I understand, it’s minimal), the TSA has allowed passengers to opt out of going through these machines. However, those who opt out are subject to physical searches by TSA agents.

A lot of people, however, have begun to speak out against perceived overreach by security officials. As a warning to the prudish, this post necessarily makes several mentions of, shall I say, lady bits. I’m not sure if this really requires a warning. But in case it does, consider yourself warned.

So, the story goes like this: a female blogger opted out of the x-ray machine, and was taken aside for a physical search. During this time, she repeatedly, and loudly, voiced her displeasure at having to go through this humiliating ordeal, simply for the privilege of flying. As the search continued, the TSA officer put her hands down the passenger’s pants, and inserted her finger into the passenger’s vagina.

Understandably, the passenger was shocked, horrified, and humiliated. She claimed, again, quite loudly, that the TSA agent had just raped her. Honestly, I don’t consider that to be an unreasonable characterization of what was done to her. She then wrote about the story on her blog. She alleged that the agent’s actions served no purpose other than humiliation and punishment, to show the world what happens when you speak out against the TSA’s actions.

This is where it gets interesting (as if it weren’t already). The TSA agent heard about the blog post, and is now suing the blogger for defamation and intentional infliction of emotional distress (IIED).

The blogger’s lawyer wrote a response which is very colorful, and definitely worth a read.

There are people out there who claim that TSA employees are no better than Nazi soldiers, and that they should know that what they’re doing is wrong, and therefore should, if necessary, bear the full brunt of the punishment for the perceived transgressions committed by the system of which they are a tiny part.

There are others who claim that they’re just working people trying to make a living. They probably don’t like their jobs, or agree with all of the policies they’re required to implement, but with the job market the way it is, what are they supposed to do?

I fall somewhere in between. I think that many of the actions engaged in by the TSA are completely worthless in terms of keeping us safe. And, on top of that, they are gross violations of privacy, bodily autonomy, and basic human dignity. And I recognize that anyone who would willingly participate in this system is, to some degree, complicit.

But, I also believe in keeping things in perspective. While many of the TSA’s actions are unnecessary and inexcusable, there is something to be said about the rationale that the ground-level employees are just doing their jobs. And it’s also important to keep things in perspective. We’re not talking about genocide or war crimes, after all.

On the other hand, the participation of these low-level employees is necessary for the improper actions of the TSA to continue. And what was done to the defendant in this case is absolutely unacceptable and inexcusable. I’m not going to mince words here: she was not being overly dramatic when she claimed that the TSA agent sexually assaulted her. If what she says is true, the agent’s actions absolutely constitute sexual assault. And while this is highly unlikely to actually happen, I believe that a criminal prosecution of the TSA agent involved would be completely warranted.

As to the merits of the defamation suit, I can say pretty confidently that it has none, especially if the defendant’s statements are true.

And even if they’re not completely true (for example, a court, for whatever reason, determines that the conduct of the plaintiff does not meet the legal standard for being considered sexual assault), colorful hyperbole, even if it’s not 100% true, does not rise to the level of defamation.

And the claim for emotional distress is just as perplexing. In order to succeed in a claim for Intentional Infliction of Emotional Distress, the plaintiff has to show, among other things, that the defendant engaged in outrageous conduct. All the defendant did was relay an account of what a public employee did to her. If that’s “outrageous,” then the whole First Amendment is an outrage. Good luck finding a court that will take that stance.

To the TSA agent involved in this case: if the defendant’s conduct made you uncomfortable, remember that you’re a public employee. People expect you to be held accountable for your actions. At the very least, the public (rightfully) expects to be informed about what’s being done in their name. If that upsets you, perhaps you’re in the wrong line of work.

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