Tag Archives: politics

What to make of oral argument in the cell phone case

Published by:

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.  

The importance of a warrant

Published by:

The point of a warrant is that a person who is not involved and is objective listens to what the policeman is saying, knowing that

sometimes, like me or any other human being, a policeman can get a little carried away. So if, in fact, he does show the warrant, that there is this basis, you issue the warrant. Many, many and if he doesn’t you don’t. It isn’t because they’re difficult legal questions. It’s just you want that third dispassionate mind to review what the facts are.

Justice Breyer, on the importance and purpose of a warrant,  US v Wurie, oral argument, April 29, 2014.

No Mr Chief Justice, all social media is NOT designed to be made public

Published by:

Still waiting for the full transcripts and audio from today’s oral argument in the cell phone search cases, but the NYT’s brief report has the Chief Justice quoted as saying  that phones also contained “information that is specifically designed to be made public,” mentioning Facebook and Twitter.”

Perhaps this is true for twitter.  When I tweet, it is public.   It is not likely to be seen by people except those who follow me, but it can be found easily enough.  Same with this tumblr.   If I tag this post, it can be easily found, otherwise, it is read – maybe, if I am lucky – by those who have chosen to follow me.    I may very well be speaking to myself.   

But Facebook is different.  I have PRIVACY settings, so that if you are not one of my “friends” you DO NOT SEE ANYTHING. Get that, PRIVACY settings.  Yes, I put a lot out there on Facebook, but I decide WHAT I share, and with whom I share it.  My privacy is intact.  

It is true if a cop takes my phone (and manages to get past my lock screen), he could easily enough click on Facebook, and SEE what I have posted.   And see who I have texted.  And see what apps I run.   Or what music I listen to.  Or the photos I share with followers on instagram. (Mostly he will see lots of photos of my dog Gracie, my cat Jazz, and frequent references to bacon).    But when he does that, he is doing it without my permission, and is violating my right to be free from unreasonable searches.  

My privacy has nothing to do with having something to hide.   Privacy is about choices; about control over information.  About control over what information I want to disclose to the government, and what information I want to keep to myself, or to keep to my group of friends.

Sure, a friend could share something I post with law enforcement.  I get that.  But King John Roberts is wrong in thinking that social media is designed to be made public.   He clearly does not understand what social media is about.  

My two month vigil of anticipation over whether the Supreme Court will acknowledge that we the people have a reasonable expectation of privacy in the contents of our cell phones begins now.  

Freedom of Speech vs. contract law: a very simple primer

Published by:

“Congress shall make no law abridging the freedom of speech, or of the press.”

Freedom of speech applies to restrictions by government, not by the NBA. Like or hate what the NBA did, the league did that as a matter of contract law pursuant to its rules, and the contract it signed with the owner of the clippers as a part of the league. It is not a question of freedom of speech.

– A message from your friendly constitutional law professor

Published by:

Come on. Enemies, who would utterly annihilate America, they who’d obviously have information on plots, to carry out Jihad. Oh, but you can’t offend them, can’t make them feel uncomfortable, not even a smidgen,” she said. “Well, if I were in charge, they would know that waterboarding is how we’d baptize terrorists.

– Sarah Palin, bringing stupidity down another notch.   

Somehow I don’t think she really understands what the word baptism means.      

Source:  CBS News: http://www.cbsnews.com/news/sarah-palin-talks-waterboarding-guns-at-nra-convention/

Musings on the Upcoming Cell Phone Search Case

Published by:

Next Tuesday, the Supreme Court hears oral argument in two cases, Wurie v. United States, and Riley v. Califonia.  Both involve the question of whether incident to arrest police can search a cell phone without a warrant, after arresting someone.  One involves a search of contacts from a flip phone; the other a smart-phone in which photos, texts, and call logs were searched.  

In thinking about these cases (which are for all practical purposes, one case) there are multiple ways the Court could resolve it.   They could argue that the existing precedent Chimel v. California provides support for the warrantless arrest.  Incident to arrest, in order to protect either other safety or to preserve evidence, a warrantless search of the person and the area within his or her immediate control can be searched.   This minimizes privacy, it assumes one does not have an expectation of privacy in not having government search the contents of your phone without a warrant.  Yet, it would be consistent with much case law, and the Court’s forty-plus year movement towards crime control.  

The government argues that there is both an officer safety and a evidence argument supporting the warrantless search.  They claim it is possible that an arrestee could use his phone to set off a remote bomb.   This could be true, in the most extremely rare exigent circumstance.  It could be true in those rare arrests of a suspected terrorist, but for 99.9% of arrestees, it has no basis in reality.  As Justice Scalia said in dissent over the Court’s permitting police to take DNA swabs of arrestees, in order to determine their identify, it “taxes the credulity of the credulous.”   Maryland v. King, 2013.   

Yet, there are two other possible outcomes.  One which would permit the search, one which would not.   In the former, the Court could extend the 2009 precedent from Arizona v. Gant, from the vehicle context to any arrest.  In Gant, the Court said that it was possible to search that the vehicle passenger compartment when it was reasonable to believe that further evidence of the crime of arrest would be found.   Thus, if you are arrested for a drug offense, it would be reasonable that your phone would contain a treasure trove of information about your dealer or customers.    But if you were arrested for public indecency, or even for an active warrant for failure to appear in court, it would not.    This could be a likely possibility, and it might satisfy Justice Scalia, who authored the concurrence in Gant  that created that standard.

But, there is a third possibility.  In United States v Jones,  2012, and Florida v. Jardines, 2013, Justice Scalia resurrected an old Fourth Amendment doctrine from the dead.   In the GPS case (Jones), Scalia argued that the government’s placement of a GPS tracking device on the under-carriage of a suspects vehicle was a physical trespass on a constitutionally protected area.   The Fourth Amendment guarantees against unreasonable searches of one’s person, houses, papers, and effects.   The vehicle is clearly an effect.   If government physically intrudes on that effect without a warrant, it is a trespass, and thus an unreasonable search.   If the vehicle is an effect, the cell phone is certainly an effect, and Scalia is likely, I think, to argue that a warrantless search of it is a violation of the original understanding of the Fourth Amendment.  

Perhaps I will be wrong, and he won’t argue trespass next week.  We’ll see. But in thinking of the outcome, there are two clearly defined camps.    Alito, Roberts, Kennedy, and Breyer will almost certainly argue that the search is warranted.   Heck, Alito is so far to the right as the ultimate post-9/11 statist, that he will even accept the government’s argument about officer safety to prevent bombs.  On the other side, I am confident, will be Justice Scalia, Ginsburg, Sotomayor, and Kagan. They have been a consistent voting block on Fourth Amendment cases in recent years.  There is little reason to expect them to diverge now.

This leaves the wildcard.  Justice Thomas.   Thomas joined the “trespass doctrine” argument in both Jones and Jardines.    He also joined the 5-4 majority in Arizona v. Gant, modifying the search incident to arrest doctrine, to those instances where it is reasonable to believe further evidence of the crime of arrest will be found.   Will he stick with trespass — and the framers views (as Scalia and he seem to prefer)?   Or will he use Gant, and possibly join the Four Fourth Amendment conservatives to uphold the search?   Since he doesn’t speak at oral argument, that answer is unlikely to be provided next week.  Yet, in an anonymous tip case that Thomas authored this week, Scalia skewered him in a scathing dissent, going so far as to say that “The Court’s opinion has served up a freedom-destroying cocktail of patent falsity.”   Will Thomas allow that attack on him to sway his views?  I doubt it, but who knows?  

Personally, I am rooting for the trespass doctrine, even though I don’t like it, and would rather see a Katz “reasonable expectation of privacy” argument, but since Scalia wants that standard to go away, I think the other “liberals” are more likely to just go along with Scalia and get the result they want with a trespass doctrine rationale.   

It should be interesting to see what happens, both next week, and in late June, when the case is decided.  Ironically, none of this would be an issue if police were simply not lazy at times.  At the time of the arrest, they could seize the phone as evidence, and then take the time to seek a search warrant.  It would probably be granted, and would then satisfy the Fourth Amendment’s command.    But that today, sadly, is the exception, and not the rule.   

Private Colleges paying students to take a year off from school

Published by:

The associated press is reporting that there is a new movement afoot in private universities and colleges.  They are providing financial aid to “needy” students to take a year off between high school and college, so they can take a “gap” year to travel and experience the world, apparently like many of their more wealthy applicants are able to do.

Are you kidding me?  In a world, where higher education costs have increased more than 1,120% in thirty years, where college is increasingly out of the reach of many Americans, selective universities are PAYING students to go travel the world?   I have a better idea — MAKE EVERY student who enrolls at Princeton take a year working a crap minimum wage job BEFORE starting college.  Don’t PAY them to do it – make them live on that wage, and then let them enter the university.  That might not let students travel the world, but it will give them a taste of what life is like for many Americans.   

In the AP Story they report that this new trend extends beyond Princeton and Tufts, even smaller private colleges like St. Norbert’s College in Wisconsin are doing this.   I went to a college very similar to St. Norbert.  A college that cost $10,000 per year in 1986 (still a LOT of money); today cost more than $48,000 a year.  One year there today equals the total cost of a four year education in the late 1980s.   Is there four times the value of the education today?    

I guess I am not surprised that these elite institutions are offering such perks.   But the fact that these institutions take federal monies in many ways, really irks me to no end.   Given the crisis we face in the world of public higher education funding, how on earth anyone can justify providing funding to allow students to “take a gap year” and “explore the world” is beyond me.   Let them work at minimum wage, and experience “the world.”   Fries with that?  

Today’s tale of the absurd in the world of law enforcement reasoning

Published by:

Yesterday I provided a quote from the remarkable dissent from People v Weaver, a 1991 Court of Appeals decision involving a drug profile.   Today I’d like to share the reasoning (accepted by the Court’s majority, written by Judge Roger Wollman) as the basis of reasonable suspicion for a stop.

[An officer is waiting at the Kansas City Airport, watching people get off of a flight from Los Angeles at 6:45am].  As Weaver disembarked from Flight 650, he caught Officer Hick’s attention because he was a “roughly dressed” young black male who was carrying two bags and walking rapidly, almost running, down the concourse towards a door leading to a taxi stand.    Because Hicks was aware that a number of young roughly dressed black males from street gangs in Los Angeles frequently brought cocaine into the Kansas City area and that walking quickly towards a taxicab was a common characteristic of narcotics couriers at the airport, he became suspicious that Weaver was a drug trafficker.   –  People v Weaver, 966 F.2d 391 (1992) (Judge Roger Wollman).  

Wait, are you kidding me?  A “roughly dressed” young black man walking swiftly towards a taxi-cab after getting off a 3 or 4 hour flight is suspicious, since Los Angeles is a source city for narcotics in the midwest?  

I’ll say it again, are you kidding me?     This is a classic example of the way judges – particularly federal judges – accept wholeheartedly and uncritically – the rationales that law enforcement make up for profiling in the war on drugs.    While we can lay much blame for racial profiling on the police,  the Judicial branch deserves its share of blame for allowing such travesties of justice.   

%d bloggers like this: