From the Supreme Court: Get a Warrant, Officer

Violent criminals are out there. I get it. A number of them have even inflicted violence on me, giving me concussions, cuts, bruises, a broken jaw, a facial scar, and a nerve-dead tooth. Some people really should be kept separate from the rest of us, for our safety, and some kind of incarceration is probably an unavoidable, if ugly, social practice. While I certainly do not espouse Hammurabi’s Code (famous for its “eye for an eye” rule, number 196), I also do not think anyone has ever accused me of being “soft on crime.” Nonetheless, before society exacts its vengeance or punishment or safety measure (depending on your theory of criminal justice), it is only fair (and constitutional) that the legal system actually makes sure the accused person is guilty. In the process of enforcing the law and determining guilt or innocence, the system also must respect the constitutional protections provided to every criminal suspect in the USA. Despite the impression one may get from TV shows, procedural protections do not exist merely as technicalities that lawyers can exploit to help guilty people get away with their crimes. They are in place to protect all of us from potential abuse of power by the government in all of its incarnations. And they protect us no matter which state we are in.

Yesterday (June 25, 2014) the US Supreme Court released a nearly unanimous decision in a major criminal-procedure case. (Actually, there were two cases combined into one decision now known as Riley v. California.) I have not read anyone’s take on it yet, but to me it looks like a strong ruling in favor of the search warrant “requirement,” not to mention privacy protection. This week the conservative Court has issued a decision that supports the Fourth Amendment demand that law enforcement officials, whether small town patrol cops or FBI agents, get a search warrant.

For those who need a primer or reminder: in general, government officials, including detectives, are required by the Fourth Amendment to obtain a search warrant, supported by probable cause to believe that evidence of a crime will be found and issued by a magistrate (usually a judge), before searching a person’s home, vehicle, body, et cetera. The Supreme Court has fashioned an impressive array of exceptions to the rule, and so, in practice, cops, jail guards, school principals, and others often are free to search without a warrant. In fact, when a sergeant from the Portland (Maine) Police Department spoke at my criminal procedure class in law school, he stated that he rarely had to fill out a warrant request. Why? In the field, a police officer is permitted to search someone in the process of arresting him or her, to ensure that he or she does not have a weapon that could be used against the officer and to preserve evidence. (This is called a search incident to arrest.) Also, it is often so obvious, prior to arrest, that someone has contraband—it may be a bag of cocaine sitting on the floor of a car that has been pulled over for a traffic violation—or other evidence of a crime—say, empty bottles visible in a drunk driver’s car— that the warrant requirement has been negated by an “exigent circumstance.”

When someone is arrested, the cops are permitted by the constitution (and, presumably, required by department policy) to search the arrestee. During that search, the officer may find and seize a cell phone or other electronic device. The officer may then wonder whether the device has evidence of crime or a lead to investigate further. Until yesterday, it was unclear whether the Fourth Amendment requires an officer who finds a cell phone to obtain a search warrant before perusing its contents for things like call histories and text messages, because the law is generally slow to respond to changing technology. Would searching someone’s smartphone be analogous to searching his pockets for weapons or to entering his home and looking around? The Court has now established that law enforcement generally must obtain a search warrant before examining the contents of a cell phone or similar device; and, in the event that a warrantless search is executed when the Fourth Amendment requires a warrant, any evidence obtained thereby is subject to exclusion from any criminal case that ensues.

Some people undoubtedly consider the exclusionary rule as something that helps criminals “get away with” violations of the law. They may be angry that, for instance, the two defendants convicted of charges including illegal possession of a firearm and attempted murder got their convictions reversed. In reality, a search warrant is not especially difficult for officers to get, and, in a case of truly exigent circumstances, evidence obtained without a warrant may still be admitted at trial. Moreover, the vast majority of criminal cases never go to trial. It makes more sense, in my opinion, to be upset at the officers who failed to get a search warrant and, thus, damaged a criminal case, than at the lawyers and judges who are upholding a constitutional protection that exists for all of us. If you get arrested for something foolish or erroneous—driving on a suspended license or an incident of mistaken identity, for example—do you really want cops looking through your iPhone?

The lesson for law enforcement from this case is clear and emphatic: when in doubt, get a warrant. For non-lawyers out there, the lesson is: do not simply allow the police to invade your privacy on the off chance that they will discover evidence that you committed a crime. And criminal defense attorneys have a bright-line rule that disincentivizes cops from overstepping boundaries on their well-intentioned mission to solve crimes.

A couple of side notes: the decision amusingly describes three precedents that cover this area of law as “The search incident to arrest trilogy” (see page 8). Also, the majority opinion contains some analysis that uses the Court’s relatively recent (and strange) habit of examining constitutional rights through the lens that the Constitution’s Framers theoretically would have used if they were looking at the same case. That is, the Court proceeds to its “balancing of interests” discussion only after determining that we lack “more precise guidance from the founding era” (see page 9) and also places the decision in the context of the colonial era (see pages 27-28). I find Originalism maddening, for a few reasons, but that would be a post for another day. And the Court manages to preserve U.S. v. Robinson, a case in which an officer, without a warrant, searched an arrestee’s cigarette pack and found drugs but was determined not to have violated the Fourth Amendment, without expanding its reach. The Court here (on page 11 and elsewhere) states that a phone can be examined to make certain it is not concealing a weapon, but its contents cannot be searched without a warrant. Finally, the decision includes a long, fact-specific discussion (on pages 12-15) that, in effect, rejects the argument that allowing officers to search a device’s contents will prevent “remote wiping” or similar means of evidence destruction.


smoke and mirrors in South Portland

I have lived in the fine city of South Portland for more of my life than anywhere else and, despite my dalliances with other communities, consider it my home town. I also strongly believe that marijuana prohibition has been an unjust disaster in the United States (and Mexico and possibly elsewhere). Logically, then, I was disappointed, if not a little annoyed, that the leading officials of the City of South Portland decided to devote a good chunk of their time on Monday (June 2, 2014) to opposing a symbolic anti-prohibition measure pending in SoPo. First, the mayor, the police chief, two city councilors, and a few others spoke at a press conference to express their opposition to any legalization of recreational marijuana. The city council followed up with a formal resolution that expressed the same principled objection to legalization in the city.

According to news reports, the officials were prompted by the Marijuana Policy Project’s recent attempts to get a citizen initiative on South Portland’s ballots, and they may have endured recent nightmares about the horrors that have ensued since Portland “legalized” ganja last year. And by “horrors” I mean the lack of any noticeable change related to cannabis in the Forest City. I have lived, studied, and worked in Portland for the last two years and have seen neither anything in the news nor anything first-hand that would indicate a surge in marijuana use here. I assume that is because the legalization referendum was mostly symbolic, which has been noted by various sources, such as this freelance writer online. Furthermore, even if it were more substantive, its language suggests only a decriminalization of marijuana possession by adults of legal drinking age. The ordinance did not provide for a Colorado-style total legalization of commerce in marijuana. Still, the Portland Police Department has chosen to, in effect, ignore the solid majority of voters who supported the measure in November of 2013.

Of course, I am aware that state law generally trumps local law when the two conflict, much as states can find their laws overridden by the federal government under the Supremacy Clause of the Constitution. Nonetheless, despite the reality that local governments cannot override state and federal laws, an ordinance like the one proposed for South Portland can perform at least two functions that are important in a (theoretically) democratic nation.

First, it will add to the large body of persuasive evidence that the people of this country, by and large, do not feel marijuana should be prohibited outright. A brief DuckDuckGo search quickly yielded four different credible polls since last spring that show a definite majority of Americans in support of legal marijuana, with regulation and taxation. Under the basic principles of representative government, this should lead to the changes that the majority supports. Although not every issue is proper for a majority vote—for example, the basic civil rights of unpopular minorities should not be subject to majority rejection— legalization of this plant species is the kind of issue that can be decided upon by a majority vote without an infliction of injustice on the minority. However, I should note that the converse is not necessarily true: that is, the desire of individuals to use marijuana should not necessarily be rejected just because a majority may support prohibition. But this post is getting into some deep political philosophy, and so it is time to shift to my next point.

Second, and more immediately, this type of ordinance signals to law enforcement the people’s intent that the police department should exercise its discretion and not investigate or arrest citizens for marijuana possession. Indeed, an ordinance like this practically demands a policy response from the police. Admittedly, local police officers in Maine rarely bother investigating low-level marijuana crimes; but the political grandstanding in SoPo last week leaves no doubt that local leaders (including the chief of the SPPD) still consider this substance harmful and worthy of their attention. Moreover, the possible presence of contraband (marijuana, for instance) has long been used by police officers in this country as an excuse to ignore the Fourth Amendment’s requirement of a search warrant. (The factual background of a Supreme Court case called Kentucky v. King comes to mind.) The consequence of Portland’s ordinance, as well as similar ones elsewhere, I would argue, is a directive from the voters to local law enforcement to leave local pot users alone. As far as the argument that police and prosecutors have a solemn duty to uphold the law, not simply to pick the ones they like: law enforcement does not (and cannot realistically) enforce every rule in the book every time it is violated. Have you ever been issued a speeding ticket for going 5 MPH over the speed limit on the highway? I know I haven’t. (more…)

more from Buxton

In my last post I mentioned that the Buxton (Maine) Police Department had been short on details about its investigation into the burglary, robbery, and assault of a 61-year-old woman in April, i.e., the investigation that led to charges against three suspects who almost definitely were innocent. I mentioned collateral consequences of arrest in that piece, and one thing that I had in mind (but did not mention) was job loss. Michael Crocker, it turns out, really exemplifies some of the collateral damage that can be wrought on an arrestee’s life; in addition to the problems I mentioned yesterday, he was terminated by his employer after he was arrested, despite the legal system’s presumption of innocence until guilt is proven. Also, he claims, someone pulled a gun on him, and he was not allowed to see his daughter for some time.

It would have been reckless for me to speculate publicly, but I casually discussed the case with a few people (not lawyers) and wondered aloud whether the BPD’s false lead had originated with one of the truly guilty parties, someone with an interest in deflecting police attention elsewhere. I suppose I had the right general idea, because the police chief now says that his force relied on information from an informant with a rap sheet and other charges pending. According to the police, the informant’s information seemed reliable because he knew details about the crime that were not publicly known at that point.  I do not mean to suggest that the informant may have been involved with the crime, but, rather, would like to note that such “cooperation” with the police often originates with a desire to get a good plea bargain. In Crocker’s case, he was lucky enough to have solid evidence that he was far from the scene of the crime on the night in question. Many others have not been so lucky, instead doing hard time based on questionable testimony from jailhouse informants or shoddy detective work. Do a Google or DuckDuckGo search for Project Innocence, jailhouse informants, or convicted but innocent, if you doubt that.