Category Archives: scotus

Crime Control vs. Expanding Police Power: The Supreme Court’s decision in Utah v. Strieff

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Craig Curtis, Bradley University

Michael C. Gizzi, Illinois State University


The Supreme Court’s recently ended term only had a few search and seizure cases, but the decision in Utah v. Strieff provides evidence of the continuing power of the crime control narrative on the Court, and involves one of the central issues explored in The Fourth Amendment in Flux, namely, the evolution or devolution of the exclusionary rule in a jurisprudence of crime control. The case openly forgives police misconduct, by exaggerating the social costs of excluding evidence, and creating yet another rationale for permitting illegal police activity to go unchallenged.

In this case, Edward Strieff was subject to what the lower courts conceded was an illegal Terry stop, lacking reasonable suspicion. After the stop, the officer learned that Strieff had an outstanding warrant for his arrest. Strieff was arrested and searched incident to that arrest, and incriminating evidence was found. The question is whether that evidence is tainted by the illegality of the Terry stop. Does the “fruit of the poisonous tree” doctrine apply, or does the intervening act of discovering the existence of a warrant preclude the use of the exclusionary rule.

In 5-3 decision, Justice Thomas held that the existence of the warrant was sufficient to “break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff’s person.” Justice Sotomayor wrote a stinging dissent, exposing how the Court was diminishing Fourth Amendment rights.   Her words are worth quoting at length:

This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more.
The indignity of the stop is not limited to an officer telling you that you look like a criminal. … If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.”
The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.

While the Court in Strieff makes concessions for the need for police discretion to protect public safety, Justice Sotomayor really illustrates what is at stake for the future. Allowing an illegal stop to stand just because of the happy accident of the existence of an outstanding warrant rewards police misconduct, rather than deterring it. What this case does is demonstrate that the jurisprudence of crime control remains deeply embedded in the minds of many justices, and the majority of justices, refuse to acknowledge, as Justice Sotomayor does, the threat that this approach presents for constitutional civil rights and liberties.   The Fourth Amendment is certainly still in flux, but the jurisprudence of crime control remains the dominant paradigm.


Hot off the Presses: The Fourth Amendment in Flux

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Very excited to have received an advance copy of my new book, The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy just published by the University Press of Kansas.   UPK is one of the top publishers in political science, and seeing the book in print is very cool.      The book was the culmination of ten years of study of the Fourth Amendment, and two years of research trips to the Library of Congress.   The book should be available on Amazon on May 24th.

Here is a basic description:

When the Founders penned the Fourth Amendment to the Constitution, it was not difficult to identify the “persons, houses, papers, and effects” they meant to protect; nor was it hard to understand what “unreasonable searches and seizures” were. The Fourth Amendment was intended to stop the use of general warrants and writs of assistance and applied primarily to protect the home. Flash forward to a time of digital devices, automobiles, the war on drugs, and a Supreme Court dominated by several decades of the jurisprudence of crime control, and the legal meaning of everything from “effects” to “seizures” has dramatically changed. Michael C. Gizzi and R. Craig Curtis make sense of these changes in The Fourth Amendment in Flux. The book traces the development and application of search and seizure law and jurisprudence over time, with particular emphasis on decisions of the Roberts Court. IMG_4537

Cell phones, GPS tracking devices, drones, wiretaps, the Patriot Act, constantly changing technology, and a political culture that emphasizes crime control create new challenges for Fourth Amendment interpretation and jurisprudence. This work exposes the tensions caused by attempts to apply pretechnological legal doctrine to modern problems of digital privacy. In their analysis of the Roberts Court’s relevant decisions, Gizzi and Curtis document the different approaches to the law that have been applied by the justices since the Obama nominees took their seats on the court. Their account, combining law, political science, and history, provides insight into the courts small group dynamics, and traces changes regarding search and seizure law in the opinions of one of its longest serving members, Justice Antonin Scalia.

“A significant contribution to the literature on Fourth Amendment jurisprudence that is written clearly and concisely. It should be read by legal scholars and students, and anyone with an interest in how law enforcement interests collide with the privacy rights of citizens.”

—Craig Hemmens, Chair and Professor, Department of Criminal Justice and Criminology, Washington State University

The Fourth Amendment in Fluxis an excellent book for political science, pre-law and criminal justice students.”

—Michael Palmiotto, Professor of Criminal Justice, Wichita State University

At a time when issues of privacy are increasingly complicated by technological advances, this overview and analysis of Fourth Amendment law is especially welcome—an invaluable resource as we address the enduring question of how to balance freedom against security in the context of the challenges of the twenty-first century.

What Chumps? The only chump I see sits in the center chair.

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I think the chief justice has lost control of his ship or at least has been poisoned by the bitter pen of Justice Scalia. His writings in dissent serve to diminish the legitimacy of the Court, and use language that – with the exception of Scalia – I rarely see in Supreme Court opinions.

Here is the start of his dissent in the Arizona redistricting case:

“Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.”…

What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause.”

WHAT CHUMPS? The only chump I see sits in the center chair. He can make his argument without having a temper tantrum.

Ironically, the dissent in this case by Scalia is measured and focused, without the rancor that we often see. Of course, his one friend, Ruth Bader Ginsburg is writing the opinion of the Court, and while he criticizes it, he does so without the fury he reserves for others.

Highlights from the Court’s decision in the Marriage Equality case

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While my first read of Kennedy’s opinion in Obergefell is certainly not detached, it is truly an enjoyable opinion to read. Eloquent in its defense of liberty, thorough in its review of precedents involving privacy and marriage, and makes a persuasive argument. Truly Justice Kennedy’s shining moment.

Some highlights:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as welearn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safehaven, and connection that express our common human- ity, civil marriage is an esteemedinstitution, and thedecision whether and whom to marry is among life’s momentous acts of self-definition….

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, suchas expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be- come something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.”

I’ll leave the hypocrisy of the dissents for another post.

Religious freedom and compliance with the Court’s Same Sex Marriage Decision.

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Religious liberty does not mean your reliance on ancient texts taken out of context and translated using the state of the art tools of the early 17th century, permits you to deny full equal rights to others. There really is no religious freedom issue. Those opposed to same sex marriages do not have to enter into same sex marriages. Nor do their churches have to consecrate them. The Court spoke today, but the “religious freedom” lunacy will continue for some time.

And like after Brown v Board of Education, when southern states refused to implement the decision, we are already seeing plans to not comply in places like Texas and Alabama. In Texas, the Governor is issuing a statement prioritizing the “religious freedom” of Texans. In several counties in Alabama, their county clerks are no longer issuing any marriage licenses.

While it took a decade for the Civil Rights Act to finally force compliance, the Department of Justice has all the tools it needs today to nip this in the bud much more quickly today. The Court has said that marriage is a fundamental right. The DOJ can litigate to make sure that right is not deprived.

Further thoughts on Hobby Lobby and the farce of corporate personhood

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I explored yesterday’s decision in Burwell v Hobby Lobby in a guest post.
Here I expand on a few of the issues from that post.

The Court’s unwillingness to even address the constitutional issues at stake from Employment Division v. Smith suggest that the Court is not really interested in religious liberty.  The five justices in the majority see their interpretation of RFRA as a way to limit part of President Obama’s Affordable Care Act.  The same five justices have extended First Amendment speech rights to private corporations in campaign finance matters,  the decision today broadly expands the power of corporations, in what truly is a legal fiction.  Corporations do not profess religious beliefs. It is a farce to claim they do.  This case is about advancing corporate power, not religious freedom.  

It is also unclear whether today’s conservative bloc has the same understanding of religious liberty as the six justices who decided Smith in the Rehnquist Court.  I remember at the time thinking that Smith was a terrible decision that severely limited individual liberty.  Yet, in comparison with the smoke and mirrors of Hobby Lobby, perhaps Smith is ok. Ultimately the problem rests with the way that RFRA is used – and abused – by the Court in today’s decision.  And in the end, that all boils down to the idea of Hobby Lobby as even having a religious interest.  It is an arts and crafts store, not a church.  It is a corporation, not a person. 

The Court went to great pains to make it clear that this was a narrow decision, that only dealt with the contraception mandate.  It did not provide corporations with an exemption from other laws. The decision was also careful to use the words “closely-held” corporations, referring to privately-owned, and not publicly-traded corporations.  Thus, if you work for General Motors, the corporation would not be free to claim a religious objection to the contraception mandate.  Yet, it is a short leap from the logic that the Court uses to rule that corporations are people, to expand the decision to other corporations. That would be decided in future litigation, but Supreme Court decisions are interpreted by lower court judges, who will make the initial decisions as cases come to them.  

Is today’s decision a serious setback to women’s rights?  Yes, and no.  On the one way, it is baffling to even be debating contraception in 2014.  I thought that ship had, with the exception of some Roman Catholic Bishops, sailed long ago.  Justice Ginsburg’s concerns are valid.  But the decision is narrow;  most Americans are not impacted by it. Of course if I were one of the 22,000 women employees of the two companies immediately at risk of losing coverage, it would not matter that most American’s coverage is not limited.  I hope the Obama Administration take Justice Kennedy’s cue, and extends the same coverage that is being done for employees of non-profit religious organizations that have sought the exemption.  Of course, this infuriates me that it is even necessary, but if it ensures full access to all women for basic reproductive health care, then I can live with it. This case proves the point that health care should not be tied in any way to employment.  

Were I someone who actually steps foot in an “arts and crafts” store, I would be looking for a new place to shop.  But that is a personal choice of an individual – an actual person who has full rights to speech, press, and free exercise of religion.

GUEST POST — Making Sense of Burwell v. Hobby Lobby: Free Exercise of Religion or Advancing Corporate Power? | Bruce Reyes-Chow

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Link: GUEST POST — Making Sense of Burwell v. Hobby Lobby: Free Exercise of Religion or Advancing Corporate Power? | Bruce Reyes-Chow

Yes, I am blogging a link to my own writing, hosted on my friend Bruce Reyes Chow’s site.  

But here is a snippet:

What do we make of this decision?

I would argue that the Court’s unwillingness to even address the constitutional issues at stake from Employment Division v. Smith suggest that the Court is not really interested in religious liberty. The five justices in the majority see their interpretation of RFRA as a way to limit part of President Obama’s Affordable Care Act. The same give justices have extended First Amendment speech rights to private corporations in campaign finance matters, the decision today broadly expands the power of corporations, in what truly is a legal fiction. Corporations do not profess religious beliefs. It is a farce to claim they do.  This case is about advancing corporate power, not religious freedom.

It is also unclear whether today’s conservative bloc has the same understanding of religious liberty as the six justices who decided Smith in the Rehnquist Court. I remember at the time thinking that Smith was a terrible decision that severely limited individual liberty. Yet, in comparison with the smoke and mirrors of Hobby Lobby, perhaps Smith is ok. Ultimately the problem rests with the way that RFRA is used – and abused – by the Court in today’s decision. And in the end, that all boils down to the idea of Hobby Lobby as even having a religious interest. It is an arts and crafts store, not a church. It is a corporation, not a person.”

A sweeping endorsement for digital privacy: Riley v. California

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The Supreme Court’s decision today in Riley v. California can be thought of as “a sweeping endorsement of digital privacy” —  words used on the SCOTUSblog live stream when news of the decision first came out.  The statement is certainly accurate.  In a unanimous decision (with just one concurrence by Justice Alito), Chief Justice Roberts ruled that before police can search a cell phone after an arrest, they must first secure a warrant.  Roberts left open the possibility for exigent circumstances justifying a warrantless search, but described them as “extreme hypotheticals.” 

I have paid very close attention to this case, not just because I am writing a book on the Roberts Court and the Fourth Amendment, but because the case has forced the Court to address how the Fourth Amendment will be viewed in a digital world, after a forty-five year period of limiting individual rights in the name of crime control.  The Fourth Amendment, beginning with the Burger Court in the 1970s and 1980s, has been recast from one where the warrant requirement was the measuring stick, to one where the “touchstone” of Fourth Amendment analysis has become not a warrant but instead “reasonableness,” — a term that provides much wiggle room for providing discretion to police in the name of crime control. 

The cell phone case is not the first one to address questions of technology, although it is the logical sequel to the GPS surveillance decision, United States v. Jones, that the Court decided in 2012.   In Jones, the Court ruled that government could not use GPS to conduct surveillance of a vehicle without first obtaining a warrant. In that case, however, Justice Scalia relied on an old – previously discarded – theory of the Fourth Amendment claiming that an unreasonable search occurred when there was a physical trespass on a constitutionally protected area, one’s “person, home, papers, or effects.”    In the cell phone case, the Court never once mentions trespass.  Indeed, Scalia did not even mention it during oral argument.  Instead, the focus is on the doctrine of search incident to arrest.  Like Jones, all nine justices agree with the outcome – but in Jones, there was a 4-1-4 breakdown (Scalia writing for 4 justices, Sotomayor concurring; Alito writing for another 4, all agreeing with outcome, but not reasoning).  Here it is 8-1, with Alito concurring in part, and concurring with the judgment.  

One of the major “warrant exceptions” that Court has relied on, and on which police have used extensively in the war on drugs, is the doctrine of search incident to legal arrest.  What this means is that after an arrest an officer can search the person of the arrestee, and the area within his “immediate” control.  This is done for the two reasons of officer safety, and to prevent the destruction of evidence.  The Court’s 1969 ruling in Chimel v California set the original precedent; it was reinforced in the 1973 decision in United States v. Robinson, in which the arrest occurred in a vehicle.  While the Court departed from it in the 1980s, with its ruling from New York v Belton which permitted vehicle passenger compartment searches regardless of those two rationales, in 2009, the Court’s decision in Arizona v. Gant restored the Chimel and Robinson justifications, limiting vehicle searches, for the most part,to those instances when it was reasonable to believe further evidence of the crime of arrest would be found. 

In oral argument in Riley, the government encouraged the Court to extend the Gant rationale to cell phone searches, but the justices would have nothing to do with it.  Chief Justice Roberts, in an opinion which seemed to try to make his knowledge of contemporary technology clear (he even referred to the iOS 7.01 user manual — who knew there even was a user manual?), Roberts argued that cell phones are fundamentally different than searching a wallet or pocket.    He used powerful language that privacy advocates will quote for years to come. His words are worth quoting in full.   Roberts describes cell phones as 

“such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.” 

Moreover, the Court made it clear that

“Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” 

There are clear implications for privacy.    Roberts’ opinion focused on the storage capacity of phones. 

“The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.” 

The use of cell phones — smartphones really – is pervasive. 

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. ”

In his opinion, the Chief Justice rejected the government’s arguments that there were officer safety concerns, and largely swept aside concerns about the ability for a third party to remotely “wipe” a phone, by suggesting that police could seize the phone, and put it in a “Farady” bag (an aluminun baggie designed to prevent the transmission of digital signals, turn off the phone, or remove the battery.    He suggested that the concerns raised were mostly anecdotal.  

The Court does not over-rule the “third party doctrine” of Smith v. Maryland, the 1979 case which permitted searches of a “pen register” – a list of phone calls made, but distinguished it, by suggesting that call logs provide more information than just phone numbers.   There is certainly room for this to be further visited.  

The Court also never once acknowledges the “reasonable expectation of privacy” standard that has been the primary focus of Court decisions involving privacy issues since Katz v. U.S. was decided in 1967.    It is clearly implied that there is an expectation of privacy in the contents of one’s cell phone that society is willing to recognize as legitimate,” but the fact that the Court NEVER mentions the standard is telling.  It suggests efforts to distance itself from Katz, something Scalia has been pushing for for years.    Of course, the Court also ignores Justice Scalia’s misguided “trespass” doctrine.  Whether that will be just a blip on the jurisprudential landscape remains to be seen. 

Justice Alito’s brief concurrence questions why it should be the Court’s job to regulate these issues, and suggests Congress should be the entity to regulate police and cell phones, just as it passed legislation dealing with wiretapping after the Katz decision.  He also challenges the majority’s reliance on search incident to arrest being based on only officer safety and the preservation of evidence.

The Court’s decision today truly is a sweeping victory for digital privacy.  It raises a large red flag for other issues such as the pervasive government sweeping of our digital lives by the National Security Agency, but those issues will wait for another day — and will be further complicated by the “national security” interests that would be put forth, and could shift the balance.  But today, advocates of the Fourth Amendment serving to protect individual privacy have much to be happy about. 

Steve Jobs would be proud.  

What to make of oral argument in the cell phone case

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Wow.  After reading 130 pages of argument transcripts from the Riley and Wurie cases, it is clear to me that technology is really beyond the justices.  And yet, they wanted to sound hip, and be up on all the latest things, by asking questions like “Your brief suggested a limitation with respect to access to the iCloud.”    The iCloud.   Apparently Justice Sotomayor owns an iPhone, and thinks cloud storage is “iCloud storage.”   

But I digress.  There was plenty of  skepticism among the justices who spoke about considering a search of a phone’s contents to be the same as anything else incident to arrest.   Justice Breyer, Sotomayor, Ginsburg, Alito, and even Chief Justice Roberts all voiced concerns — with much discussion about reasonable expectations of privacy.

Justice Scalia surprised me, and quite frankly, disappointed me.   He seemed to think the law was clear, incident to arrest you can search things that are in the arrestee’s persona and within their reaching distance (although he didn’t speak much about Chimel).   He did seem to suggest that Arizona v. Gant’s “reasonable to believe that further evidence of the crime of arrest” might be an important modifier.   But not once, did he acknowledge that the cell phone was an “effect.”  In the past two terms, Scalia has argued that physical intrusions on constitutionally protected places — one’s person, house, papers, and effects, represents a trespass — and is an unreasonable search.   He has always framed his arguments in terms of what the Framer’s of the Constitution would have thought the Fourth Amendment protected.  And given his decisions in Jones and Jardines, this could have been a slam-dunk argument.   But he didn’t make it.    Yet, he also was largely silent for most of the two hours, and did not ask many questions at all.  I am uncertain what to make of his lack of participation.  Maybe he had a cold.   Who knows.

Yet, there seemed to be concern about allowing police to have full access to all of the contents of an arrestee’s phone without a warrant.   The Court explained the rationale for the warrant – and having a neutral magistrate to make the decision about whether to issue a warrant — seemed to take a large amount of the Court’s time.    Justice Breyer made a strong argument for why a warrant and magistrate is important.  

The Court seemed to go far afield from the facts of both cases in the extended discussion given to encrypted phones and the ability to “buzz” them to automatically wipe the phone’s contents.  It seemed a bit surreal, as if it was out of a science fiction movie, and did not seem to reflect reality, or much understanding.  

The Chief Justice seems to misconstrue privacy interests in social media, but no other justices appeared to accept his arguments.  He even claimed that Facebook users had basically no privacy.   (His argument was countered that a Facebook account opens things to some but not all people).   But he also seemed skeptical of allowing full access to a phone. 

I would love to be a fly on the conference room wall on Friday when the Court decides the case.  But Sotomayor, Kagan, Ginsburg, Breyer, Kennedy, Alito, and perhaps Roberts seemed to support limits on police searches of phones.   I can’t even pretend to categorize where Scalia will be.   And Thomas never spoke.   

And now we wait.  

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