Tag Archives: courts

The Supremes Get One Right

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The Supreme Court ruled Friday that authorities generally need a search warrant before they can obtain broad access to data that shows the location of cellphone users, a decision that sets privacy boundaries in the digital age.
The court, in a 5-4 opinion by Chief Justice John Roberts, cited the Fourth Amendment’s guarantee to be free from unreasonable government searches.

And

We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information[.]

Yewbetcha.

A Concept of Privacy

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Personal privacy and protections against warrantless searches got a boost from the Supreme Court earlier this week.

The Supreme Court said Tuesday that police need a warrant to search vehicles parked at private homes, the second time this month the justices rejected government arguments for expanding the “automobile exception” to Fourth Amendment rules against unreasonable searches.

The case at hand involved a stolen motorcycle parked in the driveway of a private residence and protected from the elements (and perhaps (even probably) from being seen by police) by a tarp.  A police officer recognized from Facebook postings the residence, saw the fact of a motorcycle under the tarp, entered the property, lifted the tarp, and looked over the motorcycle—all without a warrant.

Writing for the Court in an 8-1 decision, Justice Sonya Sotomayor wrote

Just like the front porch, side garden or area “outside the front window,” the driveway enclosure where Officer [David] Rhodes searched the motorcycle constitutes [the area where] activity of home life extends….

And

Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage[.]

Justice Samuel Alito was the lone dissenter.

…the officer should have been permitted to search the motorcycle visible in the driveway, just as he could have were it parked in a public street. “Officer Rhodes’s brief walk up the driveway impaired no real privacy interests,” he wrote.

Surprising out of Alito; it seems he doesn’t completely understand curtilage or of privacy.  Notwithstanding, I’d further curtail the motor vehicle exception* allowing warrantless searches to bar such from motor vehicles parked on the street in front of the vehicle owner’s residence (or beside it in the case of a corner lot) or parked in an apartment complex’s parking lot near the vehicle owner’s apartment or in the apartment renter’s designated parking slot.

 

*The motor vehicle exception to the requirement for search warrants allows warrantless searches based on a prohibition era ruling that motor vehicles were too mobile and could be moved before a warrant could be obtained.  That ruling was itself erroneous IMNSHO because it assumed that the police were incapable of keeping a motor vehicle under surveillance until the warrant arrived.

A Tenth Circuit Speculator

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The Institute for Justice summarized a 10th Circuit case regarding a car involved in an immediately prior weapons case, its driver, and a weapon thusly:

Aurora, CO, police run tags on car with broken tail light, discover the car was seized three weeks earlier in weapons-possession case and a man (a known gang member) associated with the car was arrested. They pull it over; the man is in it; they frisk him and find a gun. He’s charged with being a felon in possession. Suppress the evidence? No need, says the 10th Circuit. Though he was calm and compliant, officers were justified in patting him down to ensure their safety.
Dissent: The gov’t is going to use this decision to justify frisks in a much broader variety of circumstances than the ones here.

The dissenting judge may well be right, but he’s speculating only.  Treat those speculatedly future cases one by each, as the unique cases they will be, and rule in accordance with the facts of those cases, not the facts of this case.

Congressional Intent

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In a piece centered on Federalism and the Supreme Court’s ruling that Congress cannot require individual States to ban sports gambling, there’s this bit at the end of the article that interests my grasshopper mind.

Supreme Court Justice Clarence Thomas, in concurring, protested the Court’s analysis of Congressional intent.

The Court also determined that PASPA’s [Professional and Amateur Sports Protection Act] prohibition on sports gambling advertising can’t be severed from the law. But as Justice Clarence Thomas noted in his pithy concurrence, the Court’s severability analysis requires courts to make “a nebulous inquiry into hypothetical congressional intent.”

On this, I disagree with Justice Thomas. In Connecticut National Bank v Germain the Supremes held

…that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.

If Congress had intended sports gambling advertising to be severable, it would have said so in PASPA. Congress did not say so; arguing the possibility of severability would be Thomas’ own inquiry into congressional intent.

“It Does Because It Does”

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The dishonesty of Special Counsel Robert Mueller’s case against ex- and brief-Trump Campaign Manager is made manifest in the opening questions Eastern District of Virginia Federal Judge TS Ellis III and Michael Dreeben’s (arguing for the Mueller side) answers.

Ellis noted

Apparently, if I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump. That seems to me to be obvious because they all long predate any contact or any affiliation of this defendant with the campaign.

Then, after a long soliloquy regarding the rationale for a prosecutor indicting a lesser player on lesser charges in order to squeeze that player into extruding information on a larger player, Ellis asked,

Where am I wrong in that regard?

Dreeben: The issue before you is Manafort’s motion to dismiss the charges.

Ellis: Yes, now answer my question.

Dreeben: “our investigatory scope does cover the activities [of the indictment]”

Ellis: Answer my question.

Dreeben: “the authorization for the special counsel to investigate matters is described generally in the appointment order on May”

Ellis: Yes, I have that letter.  Answer my question.  How does that letter include the indictment?

Dreeben: “So the authorization order permits….”

Ellis: “You’re running away from my question again. You know, I’m focused on the indictment that is here.”

Dreeben: “Well, Your Honor, we are the Justice Department.”

And there it is.  Mueller’s team flatly refused to explain how indictments related to 13-year-old events in Ukraine are tied in to an investigation of the relationship between the Trump campaign and Russia, choosing instead to be deliberately evasive.  Here, by the way, are the public parts of the Mueller Special Counsel Authorization Letter (my title for the thing), as quoted by Ellis:

Sub-paragraph b(i):

any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.

Sub-paragraph b(ii):

any matters that arose or may arise directly from the [Mueller] investigation.

Nothing in there about any allegedly nefarious activities in Ukraine.  “Arose or may arise” from the Mueller investigation means exactly that.  Stuff from outside the investigation—the Manafort money laundering charges, for instance—aren’t part of the investigation.  And so Dreeben’s implication that Ellis should just sit down and shut up: “We are the Justice Department.”

Which only emphasizes the Special Counsel’s team’s evasions.

The transcript can be read here.