Dreams of Terry-fication... or: "Cop a Feel?"

An interesting article out of the AP yesterday: Seems like Cops like heavy petting...

All jesting and innuendo aside, the substance of this article kind of startles me. I've always been uneasy with the concept of Terry stops in general. While I understand the need for police officers to ensure their safety (and prevent possible crimes), it seems to me that the whole "secure in their persons" language of the Fourth Amendment has been waylaid into oblivion.

I guess I should just chalk this up as another Warren Court decision. I mean, I'm in favor of a stronger, more assertive judiciary; however, my ideal judiciary would be a nullifying force, not an enacting/demanding force. Oh well... in the mean time (and, in this economy), I guess I'll take my free massages where I can get them...

New York Court Extends State-Law Criminal Procedural Rights

As the New York Times reports, the New York Court of Appeals has held (in a 4-3 ruling) that police violate New York's constitution when they warrantlessly utilize GPS tracking devices to track motor vehicles. According to the Times:

The police had used the device to monitor the movements of the suspect, Scott C. Weaver, for more than two months. But the court ordered the evidence gathered from the device suppressed and ordered a new trial for Mr. Weaver.

This holding is interesting in light of United States v. Knotts, 460 U.S. 276 (1983). In that case, the Supreme Court held that the Fourth Amendment (under the United States Constitution) was not violated by the use of a "beeper" that revealed where contraband, driven around in public, was tracked. As the Knotts Court explained it, the use of the beeper did not constitute a search because "[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." Id. at 281.

At first blush, the New York decision seems to afford broader criminal procedural rights than the federal Fourth Amendment, under Knotts, would require. However, in addition to some other factual differences, GPS devices are more intrusive than beepers in what they reveal. Thus, the New York high court noted that the issue was "unclear" based on federal law and "premise[d its] ruling on [New York's] State Constitution alone."

It will be interesting to see what happens if (or when) the Supreme Court takes up a similar issue. Of course, that question will have to wait for another day as the New York court's state law basis is independent of federal law, and adequate to sustain the judgment.

Court to Hear School Stripping Case Today

Back in March, Josh reported that the Supreme Court would be hearing the Safford United School District v. Redding case regarding the constitutionality of school strip searches, and offered his opinion that "the Court should hold the strip search to be unconstitutional."

The Court is hearing the case today, and Professor Kerr at Volokh has weighed in on the matter, predicting "that the Supreme Court will agree with the Ninth Circuit that the strip searches . . . are unconstitutional."

We'll continue tracking the story, and will alert you to any new developments. In the interim, we recommend you check out the briefs (linked at Volokh) and invite you to share your thoughts on how the Court will rule.

The Government Should Avoid Practicing Unprotected Witnessing...

Today's FAD is based upon an ongoing trial visited by Yours Truly earlier today.

For those keeping track at home, U.S. Atty Patrick Fitzgerald (who is like a modern day Wyatt Earp) and his office recently concluded the Family Secrets case resulting in the destruction of one of Chicago's Mafia Families (called The Outfit). Well, during the prosecution of that case, it was learned that an officer in the Witness Protection Program was feeding the Mob information about a former mobster-turned cooperating informant. Fitzgerald's office is now prosecuting the Marshal who acted as the alleged leak. Suffice to say, this case is a really big deal. I'll keep you posted as to the end result.

Blagojevich indicted!

As BBL's chief Midwest correspondent, it is my duty to inform you all of the following: Ex-Gov Blagojevich has been formally indicted.

Update: Death Penalty Standards Are Not "Evolving"

On March 19, Nima discussed New Mexico's repeal of the death penalty. The repeal, as he intimated, could "open up new avenues to the Supreme Court for death row inmates to argue against the constitutionality of the death penalty. . . .[because] other states follow New Mexico's lead in banning capital punishment altogether[.]" Given the majoritarian "evolving standards" jurisprudence, see Trop v. Dulles, 356 U.S. 86, 101 (1958), I thought Nima's suggestion was well-taken.

But it doesn't seem like any type of national consensus against the death penalty is really emerging. As LawDork reports, "Ohio Attorney General Rich Cordray is going in the other direction." According to Cordray, "it's a bogus argument to say the death penalty should be eliminated because cases take too long and cost too much."

That's pretty powerful language. Granted, as LawDork notes, the Attorney General's role is to defend the law of the state--regardless of what his or her views are. But I nevertheless think this reaction is interesting in light of the previous discussion, as it highlights the fact that our country may not be ready to reverse it's death penalty course . . . yet.

The Constitutionality of Strip Searches in Schools to be Tested

The New York Times reports that the Supreme Court will hear arguments in what guarantees to be a watershed Fourth Amendment case, as it considers the constitutionality of a strip search conducted by school officials. I, for one, am eagerly awaiting the Court’s decision. One reason for my anticipation is that the conduct of these school officials strikes a nerve. How adults, supposedly working in an effort to improve the future of adolescents, can subject a thirteen year girl to such an astonishingly intrusive, embarrassing, and life altering ordeal is truly beyond my comprehension. Another reason for my close attention to this case is that it does present an intriguing legal question. The Court has yet to specifically limit how far searches conducted by school officials, and based merely on reasonable suspicion, may extend.

Savana Redding, of Safford, AZ, was only in eighth grade when she was subjected to the strip search at issue. A fellow student had been found with prescription strength ibuprofen and had informed officials that the pills came from Redding. Armed with this reasonable suspicion, the school’s assistant principal ordered two female school officials to strip search Redding, a thirteen-year-old honors student with no disciplinary record. While abuse of prescription medication, as well as over-the-counter drugs, is undoubtedly a serious problem amongst today’s youth, it should not permit school officials to resort to unreasonable searches in violation of a student’s Fourth Amendment rights. The question is, then, whether this search was “reasonable.”

The last time the Court heard a case even remotely similar to the circumstances at hand was in 1985 when it decided New Jersey v. T.L.O., 469 U.S. 325 (1985), a case upholding a search of a student’s purse for cigarettes. The Court explained that schools have a special need in maintaining order and discipline, and thus, to determine the reasonableness of a search, the school’s interest in such order and discipline must be balanced against the student’s interest in privacy (i.e. remaining free from searches). See id. at 349. But may a more intrusive search, like the strip search thrust upon an innocent thirteen year old, be justified by mere reasonable suspicion? The student’s interest in privacy would be greater than that of the student in T.L.O., but would it be so great as to tip the reasonableness scale in favor of a Fourth Amendment violation?

The Seventh Circuit held in 1993 that the strip search of a student whom school officials had reasonable suspicion to believe was “crotching” drugs was within the parameters of the Fourth Amendment. See Cornfield v. Consolidated High School Dist. No. 230, 991 F.2d 1316 (7th Cir. 1993). Although the Cornfield court recognized that some searches conducted by school officials may be so intrusive as to require probable cause, it ultimately held that the strip search did not rise to such a level. Id. at 1327.

It will be interesting to hear the Court’s reasoning in this upcoming case, no matter whether it holds in Savana Redding’s favor or not. In my opinion, the Court should hold the strip search to be unconstitutional. Although clearly biased (see my rant above), I do honestly believe that the law mandates such a holding. The T.L.O. opinion requires that the scope of the search be permissible under the circumstances. The aforementioned Seventh Circuit opinion regarding the student accused of "crotching" drugs focused on this reasonableness of a search’s scope and ultimately held that the suspected location of the drugs necessitated such an intrusive search. But is a strip search reasonable anytime reasonable suspicion exists that a student possesses drugs? The Ninth Circuit thought the search was excessively intrusive. See Redding v. Safford Unified School Dist., 504 F.3d 828 (9th Cir. 2007). Will the Supreme Court?

Op-Ed: What are We Studying?

At the start of law school, my criminal law professor challenged the class to not only learn the law, but to question the law. We were to embrace this opportunity to ponder what the law should be; not merely accept what the law is. This, he explained, was an essential component of our legal education.

I was reluctant at first to accept this challenge. Who was I to question legal precedent? I wanted to learn the law, apply the law, and, ultimately, secure a job. To hell with this intellectual component of legal education!

I somewhat digress from this article’s main point, but I believe the digression is necessary to frame my argument. I am a young white male. I grew up in a small, relatively affluent, Connecticut suburb. This undoubtedly caused much of my initial indifference, as I was largely shielded from many of this nation’s unfortunate realities. But, living in a diverse city, working at the United States Attorney’s Office, and, of course, studying the law has offered me a new and welcome perspective. The indifference which once figured so prominently in my legal education has become a lost remnant of a different life.

And it's a good thing that it did, because studying criminal procedure inevitably leads one to question whether the laws are “fair.” Are they merely a means of maintaining the status quo and protecting the politically/economically elite? I don’t consider myself a conspiracy theorist. I surely don’t believe that any explicit agenda exists within the criminal justice system to apply disproportionately burdensome laws on the lower class and minority population. However, implicit within this system is a policy that disproportionately incarcerates these individuals.

The more I study criminal procedure, the louder I want to yell at our Supreme Court Justices. I don’t know if I’m angry, I suppose I am. But, more than anything, I’m confused. Throughout my (albeit limited) legal education, I’ve had enormous respect and admiration for the Court. No matter whether I agreed or disagreed with the holding, I remained envious of the Justice’s ability to interpret the law. And now, I just want to know what happened. Why is it that I suddenly wish to correct the Court on its application of criminal procedure?

What is it I disagree with, you ask? No, I won’t bore you with the overly analyzed crack/powder cocaine disparity. But what about “reasonable suspicion?” Such a vague concept may, at least implicitly, encourage profiling and ultimately perpetuate this system that incarcerates lower class and minority individuals at a truly startling, if not sickening, rate. Specifically, I’d like to discuss Illinois v. Wardlow, 528 U.S. 119 (2000). The Court held, per Justice Rehnquist, that unprovoked fleeing from police presence in “high-crime” areas was sufficient to establish reasonable suspicion (for a Terry stop).

What is a “high-crime” area? The first image for most would be the classic low-income, “ghetto” neighborhoods in major cities. But would Wall Street classify as a “high-crime” area? For some odd reason, I don’t believe Bernie Madoff would have been stopped a year ago if he fled from the presence of police. What about Yale’s campus? I’m sure the percentage of student’s engaged in criminal conduct would compare to that of South East, D.C. or Harlem, New York. Granted, Yale students (likely) wouldn’t be committing violent crimes, but the type of crime has no bearing on whether “reasonable suspicion” exists.

It is cases like Wardlow that force me to throw up my hands and wonder what exactly it is that we're studying.