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Georgia Tech Unlawfully Detains Alumni Over a Chicken Sandwich

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A recent incident at Georgia Tech has called into question what constitutes a lawful arrest or a lawful imprisonment.  Georgia Tech alum Mary Clayton is suing Georgia Tech and its security company in federal court for unlawful arrest and unlawful imprisonment over an invasive search stemmed by a chicken sandwich.

When Georgia Tech alum Mary Clayton was told that she could not enter the football stadium with her chicken sandwich in her hand, she immediately threw it away.  Rather than letting her enjoy the game in peace, security did not even let Clayton get to her seat before a female officer approached her and took her into the bathroom.

The search then conducted by the officer was not a simple “pat-around-the-pockets” type search.  Rather, Clayton claims, and Georgia Tech security refutes, that she was told to take off her pants and shirt to fully expose herself.  Security first carefully examined Clayton’s underwear and then told her to take off her shirt so that her bra could also be examined.  Why security thought that anyone would hide a chicken sandwich in his or her undergarments is beyond my understanding.  However, they did think so and conducted an invasive search to ensure that Clayton did not in fact enter the stadium with a chicken sandwich.  Clayton, after suffering such humiliation, seeks justice in federal court.

Most people need to understand their rights, and a very important right is retained in the Fourth Amendment, which protects against unreasonable searches and seizures.  A key factor in a Fourth Amendment violation is whether or not a person has a reasonable expectation of privacy.  If a person is searched when they were entitled to a justifiable expectation of privacy, the search may be deemed unreasonable.

In Clayton’s case, the key question needs to be whether or not she had a reasonable expectation of privacy in expecting to keep her clothes on at a football game.  It is not likely that chicken sandwiches are hidden in people’s undergarments.  Therefore, the court will likely find that Clayton had a reasonable expectation of privacy in keeping her clothes on at the football game.  After all, sporting events are recreational in nature.  They are events aimed at allowing families, teens, spirited alums, etc. to get together and have a good time while keeping their clothes on!  Therefore, the Court will likely find that the security officer’s search in the bathroom was unreasonable.

A question that comes to mind is whether or not Clayton’s situation can be seen as an unlawful arrest?   Details are not given as to whether or not Clayton acted to resist an arrest.  Generally, individuals can use reasonable force to resist an arrest.  It seems that if Clayton verbally resisted or moved back, such movements would definitely be deemed reasonable.  If Clayton attempted to push the security officer or become physical, such resistance is questionable.

Similarly, courts look to reasonableness when evaluating whether a detention was unlawful.  Was the person detained for an unreasonable time period?  Was the detention against a person’s will?  Was threat or force used against a person?  If questioning took place, were the questions within the scope of the matter?  Such issues are relevant in evaluating whether or not a detention was unlawful.

In Clayton’s situation, more information is needed regarding the security officer’s actions and words, along with Clayton’s responses and reactions. However, if Clayton showed some sort of physical resistance or became violent, she is not likely to bring in a win on her charges in court.  If however it is found that the officer’s conduct was unreasonable, Clayton will likely receive a hefty amount of damages for the mental anguish she suffered.

All in all, this situation can serve to teach us all a lesson.  First off, we need to know our rights.  Just because security approaches us and asks us to do certain things does not mean that we have to.  Second, we need to keep in mind the importance of reasonableness when being searched or detained.  Just because security has cornered you, does not mean that they can surpass the reasonableness guideline.  Lastly, if you find yourself unlawfully detained or imprisoned, you can use reasonable force to get yourself out (in some situations).  Look to the officer’s conduct to determine what would be reasonable in that situation.  We need to depend on ourselves to protect our rights, because it is not always likely that law enforcement will.

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Court Says No Right to Resist Cop’s Unlawful Home Entry

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Not in Indiana.

It’s generally accepted in the United States that a person has a right to physically resist unlawful entry into their home by someone else. This sometimes includes the use of lethal force, in cases where the lives or safety of the occupants.

However, what happens when a police officer mistakenly, but unlawfully, enters a home? Do the occupants have a right to resist in those cases? This is especially relevant when police have “no-knock” warrants, which allow them to enter without first announcing themselves. If they go to the wrong address, the occupant may well believe that he is the victim of a home invasion, and respond accordingly. This sometimes leads to tragic cases we occasionally hear reported in news, where a law-abiding homeowner is gunned down by police after they mistakenly serve a no-knock warrant at the wrong address, and the homeowner shoots at the police, thinking they’re common criminals.

For years, there has been an intense debate over what right a person has to physically resist unlawful actions by law enforcement officers acting in their official capacity. The arguments on both sides are pretty straightforward. Proponents of the right argue that this country was founded on, among other things, the right to be secure in one’s home against everyone, including the government, and that the burden should be on police officers to ensure that they are at the right address before entering a home, and should announce their presence. They assert that a homeowner can’t be expected to determine, in a second or two, that the people bursting into his or her home are police officers, and he or she should be able to exercise his right to self-defense, which would clearly apply in a home invasion by anyone else.

On the other hand, opponents argue that such a right would simply encourage violent confrontations between citizens and police, and a police officer acting in the good faith, but mistaken, belief that he is being fired upon by a criminal has a right to defend himself, as well. Furthermore, they argue that the average person is in no position to determine whether the conduct of a police officer is legal, in most situations, and that cases of citizens acting in self-defense against unlawful police action should be judged after the fact, on a case-by-case basis.

Recently, the Indiana Supreme Court weighed in (PDF) on the issue. The case involved police officers responding to a domestic disturbance. When they arrived at the home in question, one of the residents told them not to come in, and began yelling at them. He then shoved one of the officers against a wall, and was subdued with a stun gun. He was tried and convicted of disorderly conduct, and battery on a police officer.

His attorney submitted jury instructions to the judge that mentioned a right to resist an unlawful entry or arrest by police officers. The judge refused to use these instructions, and made no mention of such a right when instructing the jury.

He appealed his conviction based on that jury instruction, and it went to the Indiana Supreme Court. The Court ruled that allowing a blanket right to physically resist unlawful police action would simply increase the risk of violent confrontations, the risk of injury to both the arrestee, and the arresting officer, and would be highly unlikely to actually prevent an unlawful arrest.

Honestly, I’m conflicted about this decision. The right to resist unlawful police conduct has been part of our common-law tradition for hundreds of years, and arguably serves as a very important check against abuses of government power. However, it started hundreds of years ago, long before dedicated, organized police forces were commonplace, and there were no trained, professional law enforcement officers. This means that day-to-day law enforcement activities were usually undertaken by members of the local community, and abuses of power might be more common. Furthermore, firearms were far less common than they are now, so a violent confrontation was far less likely to result in the death of one or both parties.

Also, other remedies, including criminal prosecution of police officers, suppression of unlawfully-obtained evidence, and civil rights lawsuits are now available.

Of course, if a police officer is clearly engaged in unlawful activity, and threatening to hurt or kill a person for no reason, nobody would, or should, blame that person for acting in self-defense, and a court should judge their actions accordingly.

However, whether or not you agree with this decision, one thing is certain: the reaction of some people to it has been unacceptable. In Indiana, some police officers, as well as justices of the State Supreme Court, are receiving death threats in response to this decision. This is never an acceptable response to a decision that you don’t like.

It’s perfectly understandable that this decision is going to create some controversy. Even though times have changed a lot since the old-school common law reigned supreme, it’s still an important part of our legal and cultural tradition. That does not mean, however, that threatening judicial officers who made a decision that you don’t like is the way to go. If anything, it simply gives more ammunition to their decision.

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California’s Anti-Piracy Bill Would Allow Warrantless Searches

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As a native Californian, I generally take pride in the fact that I’m a resident of a state that typically is on the cutting edge in the areas of legal reform and civil rights advocacy.  The laws and proposed legislation here generally slant towards the liberal and common sense, such as last year’s Proposition 19, which although it failed to pass, was the first proposed law that would have made marijuana legal for recreational use.  California is a state rooted in progressiveness; that’s why it’s so shocking when I see proposed laws like this one originating from the Golden State.

Does anyone else spot a clear Fourth Amendment violation, too?  You should, because if democratic Sen. Alex Padilla has his way the police will soon be authorized to raid compact disc and DVD manufacturing plants without being required to get a warrant or even give any notice to the owners or occupants in the plant.  Under SB 550, cops would be allowed to check to see if the discs being pressed by these manufacturers contain the proper identification marks as required by law.

The impetus behind the proposed legislation is to curb music and movie piracy.  And as you have probably all already guessed, the Recording Industry Association of America is behind the law one hundred percent.  They and Sen. Padilla cite that the new law would help to stamp out the growing losses suffered by the music and film industries, losses that they attribute to illegally made discs containing pirated content.  This is because discs pressed at professional manufacturing plants are different from those that you burn on your computer because the process for the former ensures greater fidelity and less artifacts in sound and video.  Essentially, people who buy the ill-made goods get a professional quality product, but at a fraction of the legitimate version’s price.

Now there’s no doubt that piracy is slowly killing these creative industries.  In 2005, research groups estimate that these industries took a hit to the tune of $3.6 billion due to music and movie pirates.  Padilla states that the Latino music industry has suffered the most from the sale of illegally manufactured CDs.

However, before I jump into the constitutional issues with this new law, it’s important to first address the fact that people are apparently still buying CDs and DVDs.  Who knew, right?  The RIAA states that they seized over 800,000 pirated CDs in 2010 alone, which is surprising considering that movies and films are easily downloadable for free to anyone who know where to look.  And for those who don’t, finding out how isn’t necessarily rocket science.

Anyway, back to the case at point.  SB 550 seems to come in complete and direct conflict with the Fourth Amendment which protects against illegal searches and seizures.  The law is very clear in this area.

Actually strike that, the law is still pretty ambiguous in the sense that Fourth Amendment protections are challenged and invoked on a daily basis.  Don’t believe me?  Pick up the crime section in a newspaper or better yet, watch “The Wire,” it’s the closest thing to a criminal law class at home.

Anyway, what I should have said is that in this particular instance, the notion of police being allowed to enter private property unannounced and then search through the property of another and seizing anything that is found to be in violation of the law is clearly a practice that has been ruled unconstitutional by the US Supreme Court.  The Fourth Amendment in this circumstance cannot be clearer.  The police cannot enter your property whether you are a private citizen or a business without probable cause and a warrant.  The US Supreme Court made this clear in Illinois v. Gates.

If you took a look at that link, the instant case clearly violates Gates.  Police are required to have probable cause and a warrant to enter premises and seize property.  State legislators can’t get around this rule because it’s one that is required by the US Constitution.  The only way it could ever change is if Congress amended the Constitution, and we all know that’s next to impossible.  That’s why it seems so funny that the RIAA and Sen. Padilla think they can get away with this.  Even if the bill is somehow passed into law, you can bet that there’s going to be a civil rights group or some individual ready to challenge SB 550′s constitutionality.

And they’ll win, too.

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Yet Another Reason to Secure Your Wi-Fi Network: Child Porn Charges

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By now we all know that privacy and the internet mix just about as well as water and BP.  Previously we have blogged about privacy concerns and technology, specifically how police need a warrant to search e-mails.  But did you know that you could get accused for internet activity that you didn’t even do, or weren’t even aware of?

That’s exactly what happened in a recent New York case regarding unsecured wi-fi internet connections and privacy rights.

In Buffalo, New York, police raided the house of a man because they suspected he was downloading child pornography.  After viewing the man’s wi-fi internet activity, they believed that he might be responsible for the downloads, which were traceable to the user screen name “Doldrum”.

It turns out he wasn’t “Doldrum” at all- after further investigation, the police discovered that Doldrum was actually a neighbor who had been mooching download time off of the man’s unsecured wireless wi-fi.  In this case, the man was found to be innocent.  However, the police stated that the unfortunate situation might have been avoided if he had protected his internet connection with a password (which of course he didn’t).

On a much broader note, the Buffalo case does raise some very relevant issues regarding wi-fi usage and citizen’s privacy rights.  That is, do the police have the right to obtain information from unsecured wi-fi internet activities?  If you are using a neighbor’s unsecured internet connection (which is completely commonplace nowadays), who is responsible for activities such as illegal downloads?  As this case illustrates, it can initially be difficult to tell who is responsible for what when it comes to openly shared and unsecured wireless wi-fi connections.

Just a quick refresher on our privacy rights:  according to the U.S. Constitution, we all have the 4th Amendment right to be free from illegal searches in places and things in which we have a “reasonable expectation of privacy”.  If a reasonable expectation of privacy exists, then police must first obtain a warrant to conduct a search.

So the question now becomes, when using someone else’s unsecured wi-fi connection, do we have a reasonable expectation of privacy?

Regarding the use of unsecured wi-fi internet connections, courts have held that we have little to no expectation of privacy.  What?  Is that surprising?  In a 2010 Oregon case, U.S. vs. Ahrndt, defendant John Henry Ahrndt was also found guilty for downloading child pornography using his neighbor’s unsecured network  (case summary here; click here for a nice analysis of the case).  Ahrndt unsuccessfully tried to argue that his privacy rights were violated when the police rummaged through his internet activity.

The court in Ahrndt compared unsecured wi-fi connections to cell phone conversations.  There the court stated that cell phone users have almost no reasonable expectation of privacy because cell phone calls can easily be intercepted.

Similarly, an even lesser degree of privacy expectation exists for wi-fi connections not secured by a password.  Not only are unsecured wireless wi-fi networks easily intercepted, they seem to almost invite outside users to use the network.  It’s as if the words “unsecured network” translate into, “go ahead, feel free to use me”.

The court in the Ahrndt case also commented on other data such as shared iTunes files (Ahrndt had saved the files using iTunes).  Using some pretty colorful descriptions, the court stated that “when a person shares files on iTunes over an unsecured wireless network, it is like leaving one’s documents in a box marked `take a look’”.  So, we don’t really have a reasonable expectation of privacy in using any unsecured wi-fi, and especially not in shared files.  Duh.

Now, some might argue that the average person would reasonably expect that their internet activity is private.  It has been pointed out that securing your wi-fi with a password is not exactly all that easy.  Although wireless routers come with instructions on how to password-secure your connection, for some reason many people can’t actually figure out those instructions.  Many are not even aware that you can protect your wi-fi with a password.

That’s a compelling argument, but I don’t think it would survive as a defense in court if the police come at you with evidence of illegal internet activity.  And that’s exactly what happened in both the Buffalo case and the Ahrndt case.  Neither of the responsible culprits had any privacy expectations when they downloaded child pornography using another person’s unsecured connection- and that’s why the police were able to nab them.

So the moral of the story is- well, a few points:

1)      Please do password-protect your wireless wi-fi.  While you might not be doing dirt on your connection, one of your neighbors or a person sitting in a car near your home might be- and you just might get caught up in the blindfolded, long-armed sweep of Lady Justice as she does her thing.

2)      Stop committing heinous internet crimes (I’m talking to your neighbor, not you of course).

3)      To the wireless router providers out there like Comcast, etc., please do something about your password instructions that are printed in a manual.  Very few people actually read instruction manuals anymore, because people don’t read anymore (Steve Jobs would agree with that).  I’ll bet that if you simply provide a video walkthrough of how to password-protect, and then broadcast it on any one of your 80,000 T.V. channels or post it on YouTube, everyone would know how to do it.

Until next time, let’s all remember: e-mail privacy rights > unsecured wireless wi-fi privacy rights (unless you are sending illegal e-mails using your neighbor’s wi-fi).

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Supreme Court to Consider Whether GPS Tracking a “Search” Requiring Warrant

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Anyone else following the new search and seizure Fourth Amendment case pending before the U.S. Supreme Court?  The Justice Department’s petition for writ sounds like something straight out of The Wire and has set the legal industry abuzz.

This case may sound like legal nerd stuff, but I assure you that unlike a lot of the corporate nonsense cases that the court has been entertaining as of late, the outcome of United States of America v. Antoine Jones could have some really board implications on how the police and other law enforcement agencies monitor and track criminal suspects.

The case in question was decided last year by a D.C. Circuit Court.  The defendant, Jones, was arrested and charged with drug trafficking by the police.  The cops suspected Jones was a narcotics distributor and placed an electronic GPS tracking device on his car.  Using satellite technology, the police were able to follow Jones’s movement about town and collect enough evidence against him to charge him.

The problem was that the cops did this without a warrant and when prosecutors tried to put Jones away, Jones raised a Fourth Amendment defense claiming that the GPS tracking device was tantamount to an illegal search and seizure of his car.  Jones faced a life sentence for his alleged crime, but the circuit court agreed with Jones’s argument and vacated his sentence.

Under the exclusionary rule, any evidence gathered that stemmed from an unconstitutional act (in this case the police’s alleged illegal search and seizure) must be excluded.   Therefore, Jones was able to escape the slammer.  Cops and prosecutors didn’t like this though, as they argued that GPS monitoring technology is an essential method of criminal investigation and that requiring cops to get warrants beforehand would unduely burden law enforcement tactics.

The topic of police GPS monitoring is one that’s ripe for litigation.  It’s one of the most divisive areas of criminal law today as many different state and federal courts have ruled differently on the subject, some for and some against and many with different exception to when and when it can’t be used.  Complicating matters further is the fact that almost every law enforcement agency today possesses this satellite tracking technology and are continuing to use it to help gather evidence for the prosecution of suspects.  That’s why the Justice Department has finally stepped in and asked the Supreme Court to intervene and finally settle this issue once and for all.

How will the court come out?  Who knows?  There are certainly sound legal and public policy arguments on both sides of the debate.  However, from my perspective it’s hard to deny that GPS tracking using is anything less than a violation of the Fourth Amendment.

I say this so definitively for one simple reason: the electronic tracking device.  Under US v. Karo, a seizure of one’s property occurs once police attach anything to the property that meaningfully interferes with the property’s use.  The facts in Karo are almost exactly the same as in Jones’s case.  There, cops had planted an electronic beeper in barrels that they suspected were being used to transport cocaine.  The Supreme Court struck this down clearly as unconstitutional.

Therefore, the GPS tracking device here is in and itself a search and seizure because it must be implanted onto a car or person in order to perform its function, which is to track a suspect’s whereabouts.  That’s restricting a person’s use of their property if I ever heard of one.  Not to mention that commercial tracking devices like the ones the police use probably aren’t as readily available to the public since they probably are special government issued devices.  Kyllo v. US states this as one of the factors that when present, implicate the Fourth amendment protections.

But what of the government’s argument that it’s not a search because they are only tracking his car from the public street.  The government relies heavily on Florida v. Riley, which stated that a helicopter in public airspace could track a suspect traveling on a public road because it didn’t meaningfully interfere with the suspect’s person or property.  Essentially, that this was equal to watching the same suspect in a stakeout ala The Wire.

However, the government’s argument falls apart because of the tracking device, which, again, must be implanted onto a suspect’s car.  This interferes with the suspect’s use of their car and furthermore, once the suspect takes their car into their garage, the device would then be inside private property and not on public roads anymore.

However, it will nonetheless be interesting to see how the Supreme Court comes down on this one.  Who knows?  Maybe they’ll pull another Citizens United and make another bonehead move with are civil liberties.

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