En Banc Eighth Circuit Backs Off Holding Allowing Thermal Imaging Device With Reasonable Suspicion:
I had criticized the 8th Circuit's panel decision in United States v. Kattaria here, back in October 2007, and today the en banc court handed down a new decision that allows the evidence without reaching the issue of whether the police can get a "reasonable suspicion warrant" to use an imaging device (effectively removing the panel's holding from the books).
Chief Judge Loken, the author of the original panel decision, adds in a concurrence that partly sticks to his guns from the original panel holding but partly would amend it. Loken argues that the relevant Supreme Court precedents should be read relatively narrowly in a way that leaves open whether a lower standard than probable cause is allowed. He then writes:
But I'm not sure I follow the idea of permitting a warrant based on "enough particularized suspicion to justify the minimal intrusion caused by the exterior thermal imaging of heat emissions, without regard to whether there is probable cause to issue a warrant to conduct a full physical search." Probable cause to issue a warrant to conduct a full physical search would mean probable cause to believe that a full physical search would provide the evidence described in the warrant. That won't necessarily be the same as PC to use the imaging device, of course. But it won't necessarily be a harder standard to meet, either: It depends on the investigation and what the police know, and it could be easier or hard to meet depending on the facts. To the extent Judge Loken would want courts to apply a lower standard of probable cause, one that factors in the minimial intrusion of imaging devices relative to full physical searches, I don't think the Fourth Amendment allows it.
Chief Judge Loken, the author of the original panel decision, adds in a concurrence that partly sticks to his guns from the original panel holding but partly would amend it. Loken argues that the relevant Supreme Court precedents should be read relatively narrowly in a way that leaves open whether a lower standard than probable cause is allowed. He then writes:
On further reflection, I have concluded that the panel was unwise to borrow the concept of "reasonable suspicion" to reflect the quantum of probable cause that should be required in this situation. Reasonable suspicion is not focused to the task at hand, and it has never been applied to the warrant-issuing process. Rather, the question for the issuing magistrate (and reviewing courts) when considering an application like Agent Perry’s initial warrant affidavit should be whether there is probable cause to believe that search of specific property -- the heat being emitted from a home -- in a specific manner -- by exterior thermal imaging -- for purely investigative purposes will uncover evidence of on-going criminal activity. Utility records showing abnormally high electric power usage are strong evidence supporting such an application but, without more, are unlikely to establish probable cause because of the many innocent uses of electricity. Cf. United States v. Olson, 21 F.3d 847, 850 (8th Cir.), cert. denied, 513 U.S. 888 (1994). But the “something more” should simply be enough particularized suspicion to justify the minimal intrusion caused by the exterior thermal imaging of heat emissions, without regard to whether there is probable cause to issue a warrant to conduct a full physical search.I'm not sure I understand this. On one hand, the standard for probable cause is probable cause to believe that the actual search that will be conducted will uncover the evidence described in the warrant based on the actual place that will be searched. As a result, the normal probable cause standard to justify use of a thermal imaging device should be what Loken describes in the middle of the paragraph above: "probable cause to believe that search of specific property -- the heat being emitted from a home -- in a specific manner -- by exterior thermal imaging -- for purely investigative purposes will uncover evidence of on-going criminal activity."
But I'm not sure I follow the idea of permitting a warrant based on "enough particularized suspicion to justify the minimal intrusion caused by the exterior thermal imaging of heat emissions, without regard to whether there is probable cause to issue a warrant to conduct a full physical search." Probable cause to issue a warrant to conduct a full physical search would mean probable cause to believe that a full physical search would provide the evidence described in the warrant. That won't necessarily be the same as PC to use the imaging device, of course. But it won't necessarily be a harder standard to meet, either: It depends on the investigation and what the police know, and it could be easier or hard to meet depending on the facts. To the extent Judge Loken would want courts to apply a lower standard of probable cause, one that factors in the minimial intrusion of imaging devices relative to full physical searches, I don't think the Fourth Amendment allows it.
Or, conversely, is the word of Joe Dirtbag informant (who may or may not actually exist) telling the cops that somewhere on the 12300 block of Xyz Street is a pot growing operation enough for them to go on a fishing expedition through the neighborhood?
Either way I don't like it.
If you don't want to be stopped and frisked, don't venture into public places. If you don't want your house to be stopped and frisked, don't let it be visible from a public place.
But a Terry standard is reasonable suspicion, which is what Judge Loken seems to disavow.
Unless they are in Texas and Barry Cooper is doing a Kopbusters episode with a fake marijuana grow - perp gets locked up and .000000001% of the available cannabis supply in that area is diminished to be quickly replaced by someone else once that someone else finds out previous guy got busted. Rinse and repeat ad infinitum.
On a somewhat unrelated note, google earth was apparently used by some swiss cops to find a marijuana grow operation. They claim it was by accident. Wonder how that would shake up at the Sup Ct? Google earth being widely available to the public - although the satellite that actually took the photo from space- not so much. I think govt wins. Kyllo was it?-sorry its friday dont have my memory cap on.
The answer will almost certainly be "no," but it would be fun to see the expression on their faces.
The big problem will be in a couple of years, when we'll start seeing T-ray imagers on the market. You can literally look through walls and get real images (not just heat blobs).
As I understand it, citizens do not have a REP in public utility information (transmission to a third party).
You know that conversations that take place inside a house can easily be reconstructed by bouncing a laser off the outside walls to pick up the vibrations (isn't technology wonderful?). In your mind, is letting those vibrations "leak" enough to disavow a REP in private conversations inside one's house?
It's interesting because in your view (e.g. without Kylo), the 4A represents a continually shrinking zone of protection as the ability to collect private information without physical presence expands. In a few years time, it would be quite feasible to install such a "listening" (really acousto-optic transduction) device in a remotely-operated fashion for a couple hundred dollars (although LEOs will undoubtedly pay more, that's a different can of snakes).
He's trying to establish a new intermediate standard, for a new intermediate kind of search warrant, for searches that are more intrusive than a Terry frisk, but less intrusive than an ordinary search. Let's call it "reasonable particularized suspicion", to support a warrant for a "non-physical search".
The warrant requirement approaches very close to sham; it appears to require only de minimis supporting evidence. So I think it's more like a Terry frisk than an ordinary search. It's almost as easy to justify as a Terry frisk, but it applies to the publicly viewable walls surrounding private spaces, inside the curtilage.
If such a new warrant became lawful, the slippery slope toward entirely nullifying the Fourth Amendment in practice, far beyond its present shredded state, is pretty obvious.
this may be true as to the letter of the law. i have had more than one judge tell me to my face that the PC required to get a warrant for a HOUSE/residence isn't the same as the PC required to get a warrant for an object. i once seized a briefcase, and this was the response i got. the PC I had to search the briefcase was "not half bad pretty decent but not super bitchen PC" but it was enough to get the warrant for the briefcase. i think as a de facto matter (at least in my experience), judges want to see "better" PC for a house vs. an object, for example. whether we like it or not, PC is subjective and ime judges are more loathe (as they should be) to justify a search of a man's castle, vs. his briefcase.
we used to use "administrative subpoenas" for power records. no judge signature required. the 9th circuit put the kibosh on those a while ago. since california is in the 9th as well, i know they can't do the admin subpoena route.
i have no idea who runs the utility company(s) in the area in this case, but they are not govt. agencies where i work. are you stating as fact that these util's are GOVERNMENT run? i would highly doubt that, but don't know for sure.
you did see the followup posts to that episode where much of what was initially claimed by kopbusters turned out to be suspect at best, right?
as long as plainview/openview searches are conducted, you do not need even reasonable suspicion to start an invesigation. if joe dirtbag tells cops that a grow is happening on 12300 block of Xyz street, cops could do any # of things based on that info.
1) do knock and talks (note in my state that knock and talk SEARCHES with consent must be prefaced by ferrier warnings)
2) do surveillance. cops have the same right to sit on a street and watch houses as you do.
3) walk up to via the publically accessible walkway to each house and do a knock and sniff (ruse to get the person to open the door so you can do a sniff. cops can pretend to be looking for their lost doggie or whatever.
Otherwise, there are certain presumptions of EXPECTED privacy reflected in other laws too, (even though it is possible to grab a heat signature of private life, of persons who expect to be accorded privacy from the privacy curtain of solid walls), such as the laws against upskirt phototography.
That being said, it seems this court is trying to allow a "Terry Stop" of a house (frisking it with thermal detector). Courts never like to actually cite the Drug Exception, so they come up with pathetic excuses like this to make it sound, to lay people, that the Constitution has not been subverted.
otoh, let's remember that a pat frisk is NOT done to recover evidence. it's done for officer safety, and that is a big part of why it's justified with mere reasonable suspicion vs. probable cause.
in a safety/exigence situation, thermal imaging would be fine (i suspect) w/o a warrant, like in a hostage situation or something like that where the imaging is used for tactical and safety reasons, not evidentiary.
but searches for evidence will and should require PC whereas frisks for safety are rightly justified with the lower RS.
imo
Lawyers who advocate for rules/exceptions to the constitution such as this should be disbarred, at the very least, for violating their oath to protect and defend the Constitution. Enforcing the protections of the Constitution comes before enforcing the penal code.
I think you're just not reading the VC closely enough!
As you know, my longstanding rule is that I disagree with everything you say: I guess that saves me the time of having to blog in response to your disbarment theory. (I wonder, if you think lawyers should be disbarred "at the very least" for making the argument, what should we do with the judges that accept them? Send them to re-education camps?)
your analysis is shoddy, but i first must address your begging of the question.
you are claiming that this procedure is an "exception" to the constitution.
sorry, that assumes what you have yet to prove
hth
I'm not sure I understand this section. It seems like you are saying that there has to be PC to believe you will find evidence of a crime...and I agree. Are you saying that there could be factual scenarios where there would be PC to believe thermal imaging would produce evidence of a crime, but not to believe a physical search would? If so, I guess I agree, but they'd have to be pretty unusual. I hope you're not saying (and I don't think you are) that in certain circumstances you can have PC to believe thermal imagaing will produce other PC as somewhat explained by a previous commenter.
Well, the legal justification is not to recover evidence. The legal justification is for officer safety. As a practical matter, the reason is to recover evidence in the vast majority of situations.
um, no. that's complete rubbish.
it's easy to make such pronouncements from an ivory tower, but it's simply not reality.
you are also subject to the selection bias issues wherein you ONLY see (if you work in any court associated venue or you read case law), cases where pat frisks resulted in evidence seizure and subsequent charging.
but as a PRACTICAL MATTER, the reason is to go home alive. i have had over a 1/2 dozen friends shot and several killed in the last 10 years. these are not theoretical constructs. this is reality. we do pat frisks to protect ourselves.
In temperate climates, defined as almost certainly not needing the furnace on in July and August, probably not in June, not very much in September (maybe only half the time), many people use electric space heaters. If your home has a cold spot, you may well get something that burns the watts like they're pouring out of six milk bottles and produces high but localized heat.
Would a certain ratio of false positives be legally relevant?
Even for you this statement is over the top. The plain feel doctrine is not an "exception[] to the constitution." It is an exception to the exclusionary rule which was crafted judicially as one enforcement mechanism.
On top of that, are you seriously arguing that if a cop conducts a pat down and feels a gun (which I don't think you need a whole lot of training and experience to recognize when you feel it) or a wadded up ball of crack rocks that he should not be allowed to remove it? What's the alternative? "Oh sorry, I don't actually see the gun, I know full well you have one, but because I can't search you, have a nice day."?
Even further, your analysis of what plain feels allows is seriously deficient. If the officer feels a bindle of heroin in the right pocket, that does not give him ANY cause to go through any pocket other than the right pocket. He needs separate and independent cause to "fully search you and your belongings." Now, if the bindle of heroin that he felt actually turns out to be just that, then he has cause to search you incident to arrest.
Mybad :-(
I commend the VC Conspirators for putting up the good fight. Sometimes, it just seems that the vast majority of other people are even more like lemmings than sheep.
of course noting that the exclusionary rule is nowhere IN the constitution. i could do a bruce m and say all kinds of histrionic over the top stuff about dat exclusionary rule. i'll pass.
that is a correct analysis. iirc, at least the case law in my state says that the plain feel item must be "immediately apparent" as contraband. iow, there is no "manipulation" of the object to help determine what it is. if you are doing the frisk and you feel something that MIGHT be contraband, that aint good enough (nor should it be). if it is obvious that it is , that is another thing.
fwiw, i would be more than happy if a rule was made that all evidence seized during terry was inadmissible, as long as we kept terry. contrary to other's claims we use terry to protect our lives. evidence gathering is a feature, not a reason.
most (real) street cops are not going to bother with the small baggies of mj and/or crack pipes etc. discovered during pat frisks. those are routinely disposed of (by the suspect) in the officer's presence.
just to clarify, an officer cannot feel a bindle of heroin. he can feel a bindle. the question is, is the presence of a bindle (a folded paper carrier) PC to believe that the bindle holds illegal drugs? fwiw, i have never, in my entire career found a bindle to contain anything BUT drugs. i am sure it is possible that the bindle contains creatine, weightlifting chalk, caffeine powder, or yohimbe, but it is certainly PROBABLE that the contents of a bindle is contraband.
Can't they name the STimulas Plan the ROCOPAITOASETWDWTPFO?
"Robbing Our Children to Pay for Adult Imprudence, Thriftlessness and Overweaning Sense of Entitlement That We DOn't Want to Pay For Ourselves"
Your comments in this thread are distressly uncivil: "shoddy," "complete rubbish," etc. I realize that you have tremendous personal confidence in your view of the law, and you seem to feel that there are a lot of people saying things that are wrong that you need to correct. But if you cannot respond in a civil way I will not let you respond at all.
my best friend in the dept. was a lawyer (former prosecuting attorney), who ... seeking a real job... became a cop.
several years ago, he was faced with an armed guy who pointed a gun at him, pulled the trigger, gun went 'click' (that is arguably the loudest click he ever heard), and the guy turned around and ran away. he did NOT shoot the guy. he got a LOT of crap for his decision not to shoot, but it was his decision and nobody else's.
a few years later, he was interviewing people in a house subsequent to a violent incident, was alone in a room with one of the "persons of interest" and was shot in the head. i will never know *if* he patted the guy down. being an attorney, maybe he thought he didn't have enough "frisk factors" to justify it and didn't. maybe he was shot in attempting to frisk. we will never know. but these are not hypothetical constructs.
on any individual citizen contact, you have a small chance that the person you are dealing with is armed and./or looking to do you harm. but given the vast # of contacts we make, given sufficient "n", it's a near certainty you will encounter several. so, we rely on RS and pat frisks and common sense. i can tell you with zero hesitancy that we do pat frisks to stay alive.
if the courts want to throw away evidence that is found during pat frisks (which i can tell you by experience is a small %age of pat frisks) , that's gr00vy. we just want the ability to do pat frisks, and will continue to do them, because it saves lives.
as an aside, we can just legalize/decrim drugs and then most of the evidence found in pat frisks would be irrelevant. that's fine with me.
Anecdotal evidence from people who run mini-datacenters in their homes:
None. No false positives. Nope. Not ever. Not possible. Couldn't happen. The police seize the all computers on the grounds that maybe the marijauna is being grown inside the boxen. It doesn't matter if no charges are ever filed and you get the computers back in a few months... your business is gone.
Terry stops are an exception to the Constitution (4th Amend). The plain feel doctrine just expands the scope of that exception. The evidence is not excluded per the exclusionary rule because it's held not to be an unreasonable search/seizure b/c of Terry.
On top of that, are you seriously arguing that if a cop conducts a pat down and feels a gun (which I don't think you need a whole lot of training and experience to recognize when you feel it) or a wadded up ball of crack rocks that he should not be allowed to remove it?
Obviously i'm not talking about feeling a gun. That was the way the Plain Feel doctrine was explained to make it sound reasonable to people. I'm talking about feeling, say, a box of cigarettes, and saying "based on my training and experience, people use cigarette boxes to hide and carry controlled substances" .... a cigarette box is perfectly legal (age restrictions aside) and no "training and experience" should overcome the presumption that a cigarette box contains cigarettes.
Moreover, the very notion that an officer can "feel heroin" in someone's pocket by patting them down for weapons is devoid of intellectual honesty.
[I]f you think lawyers should be disbarred "at the very least" for making the argument, what should we do with the judges that accept them? Send them to re-education camps?)
I've never advocated sending anyone to re-education camps (I have argued for mass quarantine of people infected with a certain highly communicable mental disease, which is what you're probably referring to, I presume). The answer is the judges should be disbarred and impeached/removed from the bench for violating their oath to support and defend the constitution. Carving out exceptions to the Bill of Rights is mutually exclusive with preserving, protecting, and defending the Constitution.
That would mean lots of criminals would go free, and lots of victims would whine. Sometimes I wonder how many liberties we've lost merely due to prosecutors who want to get victims to quit calling them whining about vengeance. Gutting the Constitution is the easiest way to get them to quit calling 20 times a day and shut the hell up. My liberties should trump your need for "closure" every single time.
no, they aren't. that's false.
read the 4th amendment. it says searches and seizures must be REASONABLE. it only says warrants must be supported by PC. it does not mention the standard for seizures, except for reasonable.
so, that's simply a false premise you start out with.
i agree with you, and made that point earlier. an officer can feel a bindle. whether or not that is PC is another question. as i have said, i have never opened a bindle and NOT found drugs in it. ever.
except you haven't demonstrated the 'exceptions to the bill of rights'.
terry stops Are NOT an exception, and i explained why. i know you believe they are, but you have not shown WHY you believe they are.
you make a lot of claims, but i am not seeing the evidence to back them up. start with how terry stops are an "exception to the constitution". they aren't but i'd love to hear why you think they are.
asserting that they are, is not proof however.
Doesn't the question of whether Terry stops are an "exception" beg the question of what understanding of the Fourth Amendment you want to adopt as "the" Fourth Amendment? Is that the original intented application of the Fourth Amendment? Common law search and sezuire? Modern reasonableness analysis? An idealized constitution that always requires a warrant? Pick your understanding of what the Fourth Amendment is, and then you can answer the question.
I would be grateful if some charitable person could explain the rationale? My first thought is that that, say, an 0400 dynamic entry warrant ought to require rather more certainty than driving by with a thermal imager, and a strip search more than a pat down. What am I missing?
i'm old school like that.
bruce m states definitively that terry stops are an exception to the 4th amendment. the burden is thus on him to prove this claim. he hasn't.
i look at the 4th and see it sets no standard for seizures apart from the standard of "reasonable". obviously that is somewhat subjective and thus requires interpretation, a task which our judiciary has the power.
they came up with a decision to quantify exactly what is "reasonable". they said for a short detention, that does not rise to the level of a formal arrest... the requirement is a "reasonable suspicion".
now, imo, that cannot be argued to be an 'exception' to the 4th. it is an interpretation of the 4th, which is NECESSARY since the 4th doesn't say what the standard need be, apart from reasonable.
it only mentions a specific standard in regards to warrants, which are differentiated from garden variety seizures/searches, and says that standard is PC.
terry stops are more limited in scope than formal arrests, generally speaking you can't move the subject from the location (when we do a field show-up on a terry'd suspect we bring him to the subject, not the other way around), generally speaking handcuffs are frowned upon (but individual factors may justify it), you can't do booking procedures (recover fingerprints etc. without consent), and must limit the time of the detention.
so, i pick my "understanding" of what the 4th amendment is, by reading the text. first and foremost.
*if* the 4th amendment says "no seizures shall be made except upon probable cause", THEN bruce would have an argument.
imo, the court made a reasonable interpretation.
any state could impose a higher burden on the state, and outlaw terry stops of course.
Hmmm. Apparently the sarcastic tone of my post was mostly in my head and failed to translate to the screen. So, no--I don't think electronic eavesdropping trumps REP in private conversations. I also don't think the use of IR cameras should be allowed to circumvent normal warrant requirements.
Alas, the war on drugs' corrosive effect on the fourth amendment is still doing damage and even if this court doesn't rubber stamp such things, I fear that one eventually will.
You say frisks are for officer safety rather than a search for evidence. I presume that when to frisk is codified in your procedural manual somewhere. Want to bet that it got modified within two years of Terry???? Don't get me wrong. I have nothing against officers frisking people. But let's be honest about why it happens. Procedures are in place. I understand why the police departments say they do it. But you yourself admitted that it is a vast minority of cases where you find a weapon. I'm sure you find evidence of a crime more often than you do a weapon. And you frisk more often than you find evidence of a crime. That alone should tell you something about the incentive to frisk.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I think the word "unreasonable" was meant in response to the egregious actions of the English complained of in the Declaration of Independence. I take the position that the framers never intended case-by-case "reasonable" analysis; they were making an objective statement about our rights, not setting up a question of law. When you're talking about preventing crime and catching criminals, anything and everything the police can do is arguably "reasonable" - and 4th Amendment jurisprudence certainly bears this out quite clearly.
The second phrase modifies the first. Unless there is a warrant (search warrant or seizure warrant (i.e. "arrest warrant") based on probable cause and supported by oath/affirmation, the search/seizure should be per se unreasonable.
*if* the 4th amendment says "no seizures shall be made except upon probable cause", THEN bruce would have an argument
This is my basic interpretation of the Fourth Amendment, and I know most will disagree. With respect to Terry, the words "reasonable suspicion" appear nowhere in the Constitution.
Justice Douglas' dissent in Terry v. Ohio sums up my thoughts on that issue:
I agree that petitioner was "seized" within the meaning of the Fourth Amendment. I also agree that frisking petitioner and his companions for guns was a "search." But it is a mystery how that "search" and that "seizure" can be constitutional by Fourth Amendment standards, unless there was "probable cause" 1 to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed.
...
There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.
Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can "seize" and "search" him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.
We're long past the time we entered into the "new regime" of which Justice Douglas spoke. Sadly, it's quite an old regime at this point.
At the end of the day, I believe all of the protections afforded by the Bill of Rights should be liberally interpreted in the broadest manner possible. It should be extremely hard for the police to catch a criminal who has not committed a crime in plain view of an officer. The harder it is to arrest and prosecute a criminal, the stronger are our rights, the greater are our protections from the power of the government. Of course, that means being pro-liberty is, in effect, pro-criminal. Nobody is going to win any argument (let alone election) on a pro-criminal platform. So our rights suffer.
Whit, while perhaps you are sincere in your claim that your terry stops are motivated by officer safety, on at least three occasions, I or someone in my presence (in front of my eyes) has been Terry frisked, found a box of cigs and then the LEO proceeded to thumb through the packs of cigs despite the fact that a cigarette box cannot possibly physically contain a weapon.
Perhaps you are the model LEO (serving in a state with a liberal bench might help) but your claim that the primary motivation for Terry searches is always officer safety is just not true. There are Terry searches that are conducted for officer safety and there are Terry searches that are conducted as fishing expeditions (and there are searches that start for officer safety and continue into fishing territory). No one here has any desire to put officers' lives at risk but at the same time we have no desire to allow fishing expeditions into every closed container in our pockets.
Oh, and by the way, even a small baggie here is a ticket to the station. Zero tolerance and all that. My buddy got taken in for a single roach found in his car ashtray and, get this, charged with possession of 0.02g of cannabis with carries a possible 30 days in county (plead out to probation of course). So don't tell us that cops let the small baggies slide -- some do, some don't.
Short version: the Constitution was written to prevent the abuses of zealous and manipulative cops, not all-around-swell folks like whit.
actually, case law says it. i am just explaining it. it's not MY theory. it *is* why we do pat frisks. and it is why FRISKS (for safety) are distinguishable from SEARCHES (for evidence).
do you understand the difference between a WEAPON and EVIDENCE?
we find weapons FAR more often than we find evidence. knives aren't illegal, razor blades aren't illegal, etc. etc.
heck, guns aren't illegal in many cases (open carry, CPL, on your own property).
your interpretation of what i said is wrong. i said EVIDENCE, *not* weapons.
i don't know why you are "sure" about this. you are, in fact, wrong. here's a method i use. research first, THEN form opinion.
your opinion is that frisks are for evidence, thus you are making up assumptions that are false to justify that a priori belief.
again, i suspect much of this has to do with selection bias. you don't SEE the instances where terry DOESN'T result in evidence, thus they don't exist so much in your eyes.
this is a common error of misperception for those who work in the courts, not the streets, or who read cases, but don't see terry as applied in the real world.
The Kyllo case rejected the previous understanding (at least in the Circuit I was most familiar with) that using remote infrared-wavelength surveillance equipment did not require a warrant any more than using visible-wavelength remote surveillance equipment like binoculars (or even more on point, night-vision glasses), or what you could characterize as biological surveillance equipment in the form of "plain view-sniff" drug dogs. For that matter, note that starting shortly after 9-11 in the city where I work, remote radiation detectors and chemical/biological"sniffers" have been used fairly routinely, with no warrant or even reasonable suspicion, as part of the effort to thwart NBC terrorists (yes, I know that's distinguishable because there's usually no specific subject of the investigation identified, but there's still those pesky black helicopters buzzing the neighborhood late at night... [/paranoia off]).
Where I think Kyllo got it wrong: I have a hard time with the concept that suspects have a reasonable expectation of privacy in the heat signature of the exterior of their house, any more than they have a REP on anything else that can be observed or detected from afar on the outside of the structure. Remote heat emission surveillance is entirely non-intrusive, and captures images of heat released into infrared "plain view" on exterior surfaces of a structure. In Kattaria, this was done from an aircraft (tho I don't know if the helicopter was black...). The results of infrared surveillance are themselves not typically core grand jury or trial evidence of guilt, but are used to help establish probable cause for an invasive premises search and seizure of the actual contraband. Unlike remote audio surveillance (Mark Jones' comments above mentioned using laser equipment to remotely detect sound vibrations on windows or walls), infrared surveillance does not seize private communications. Unlike, for example, backscatter x-ray technology, you're not literally penetrating a visual barrier, only picking up heat signatures on the exterior surface.
In fact, one could argue that "seizing" mere heat signatures from the exterior of a structure is far less intrusive than other forms of evidence-gathering that clearly do not require probable cause, such as obtaining telephone call data with pen register orders or Internet connection data with §2703(c)(2) ECPA subpoenas.
Although if you assume that a majority of the Supreme Court is not going to reverse Kyllo anytime soon, I do have to agree that if you need a warrant, then you also need to show probable cause, as traditionally defined. Or at least I have a hard time reading the plain language of the warrant requirement of the Fourth Amendment any other way without cynically sniggering.
Of course I don't see cases that don't result in evidence, (well not many, sometimes the evidence comes from elsewhere). But I also see cases where there is no particularized suspicion and they are frisked. Don't you think those cases get more to the heart of whether officers are frisking based on particularized suspicion of weapons or on a fishing expedition for evidence.
Oh, and you say the reason for the frisks come from case law. No, the legal justification comes from the case law. The reason for the frisk comes from the actual, subjective reason a cop searches. Your experience is no more relevent than mine, because you can only get inside the head of one officer...yourself (and sometimes I wonder about your ability to honestly examine your own motives).
trash pulls are not perfectly legal in many jurisdictions, such as my own, fwiw. but then we have a right to PRIVACY in WA state, which the federal constitution does not.
actually, it can. but it is not "readily available" and is thus not an immediate danger. but that's not the point.
great, so you witnessed an alleged abuse of terry, therefore this applies to terry IN GENERAL, and all police agencies and terry frisks?
seriously?
look, anything (ANYTHING) can be abused. it does not therefore follow that it's unjustified.
i don't find that a valid argument at all. and fwiw, an officer who is removing a cigarette pack from a pocket and looking inside is not committing a terry frisk. they are doing a search. and if they didn't have PC, they were doing an unlawful search. how that is relevant to terry, i am not sure. your saying that because some officers do unlawful searches, that terry frisks are not justified?
i could just as easily make the argument that some lawyers file frivolous lawsuits designed to harass instead of seeking lawful redress of real grievances. therefore, lawsuits aren't really for lawful redress of grievances.
the fact that some officers either exceeed the scope of terry and do searches when they shouldn't, does not mean terry frisks aren't justified or aren't done for safety.
some people can (and do) abuse all sorts of legal stuff. some cops use excessive force in order to punish people they are pissed off at. therefore, force is not justified to effect an arrest? do you see where i am going>?
also, let's distinguish between subjective intent and lawful justification.
and i didn't say it was ALWAYS officer safety. again, just because SOME people abuse a legal practice does not invalidate the practice. i said that terry stops are designed for officer safety and in fact are done for officer safety. this does not mean that one cannot find officers who abuse terry frisks. this is a frequent mode of argumentation in this blog. it goes like this. some cops abuse X, therefore X is unjustified.
i said REAL cops do. iirc i said real street cops. any cop that would charge somebody with .02 g of mj needs to get a life. even with a hardcore frequent flyer (who get little to no breaks) that's absurd.
again, just because some people are putzes says nothing about the underlying principles.
short version: constitutionally valid procedures are not to be eliminated because some people abuse them. we don't eliminate the 2nd because some people abuse guns. we don't eliminate the right to a defense attorney because some defense attorneys suborn perjury.
the fact is this: terry stops are designed and are used for officer safety. do some cops sometimes either exceed the scope of a terry frisk (turning it into unlawful search)? of course.
as ot the issue of intent, that's actually an interesting legal question. i would assume that the subjective intent of the officer conducting the frisk is not the dispositive issue here. it is the objective facts and circumstances known to him.
iow, assume cop X *wants* to (subjective intent) frisk johnny dirtbag because johnny dirtbag always has stolen guns, and other fun contraband on him, but cop X has reasonable suspicion to frisk johnny dirtbag because he witnesses a bulge, johnny dirtbag is wearing a heavy bulky jacket on a warm night, johnny dirtbag is known to carry weapons (and carries a WACIC warning of that), and johnny dirtbag has a history of violent acts towards officers and citizens.
would the frisk be not justified because of the officer's subjective intent despite his objective frisk factors? that's a question i don't have an answer for, but i would hope the standard would be objective reasonableness and not subjective intent. that's somewhat tangential, but i guess relevant based on anecdotes and practice of some cops.
shelby, "Orin Kerr" and "Oren" are two different people... or at least i think they are.
The former is an official blogger on this site iirc and the latter is just some d00d.
not really. hattio, i have already explained that i have even had prosecutors and defense attorneys tell me (off the record lol), that they would WAY rather cops frisk even when maybe not justified than not frisk and get shot.
the fact that a cop frisked without particularized suspicion of weapons in a particular instance may mean he just had some inkling the guy might have been armed etc. and didn't want to risk it.
iow, given a case of a frisk NOT justified by terry it does not therefore follow the purpose (subjective intent) was evidentiary and not safety.
ask any experienced street cop if he has ever had the hair on the back of his neck stick up for no reason he could point to at the time, that he questioned his suspicion, and he got hurt (or lucky) because he didn't act. etc. cops learn to listen to that voice in the back of their head. the ones that don't (or don't develop one) get hurt too often, transfer to a desk job, or wash out.
i;m not saying a frisk based on 'raised hair' is legally justified. iow, any evidence found SHOULD be suppressed.
imo, what's important is that the officer be truthful and not try to "make a bad case good" after the fact by inventing or stretching facts to justify ex-post facto. that is inexcusable.
but doing a frisk when you can't give a textbook definition of why it was justified DOES happen, will ALWAYS happen (and happened prior to terry) , and is a reality.
again, a search without sufficient identifiable frisk factors does not prove the INTENT was for evidence.
I think (memory getting fuzzy, it's been several years) hearing the same in person at a local department's 'Citizen Academy'.
And, thank you, to officers who, in the middle of some fast changing situation, are still trying their best to respect the law and their fellow citizens.
Put crudely, a Buie sweep is basically a Terry frisk of premises. Buie permits officers who are conducting an arrest within a home to check adjacent parts of the house to ensure nobody is there who can attack them, and can extend to the entire building if there's a reasonable suspicion that someone is there who poses a danger to the arresting officers. The police cannot rummage around in spaces too small to conceal a person, but if they observe contraband or evidence of a crime in plain view during a lawful Buie sweep, they can seize it without a warrant, or can use what they saw as probable cause for a warrant permitting a full search of the premises.
In other words, if the police execute an arrest warrant on Junior in the front hallway of Mom's house, they can look in the parlor off the hall to make sure Mom isn't about to blow them away with her 12-gauge. And they can even seize the 50 marijuana plants they see Mom has been carefully tending in her parlor, or they can use what they saw to get a warrant to search Mom's whole house. But under Buie they can't also go upstairs and snoop around Mom's bedroom -- unless they happen to hear Mom racking the slide on her Mossburg upstairs, or at least have reason to believe that Mom's somewhere in the building and is prone to fits of violence towards men in uniform who mess with her baby.
Bottom line: the basic idea of a legitimate and limited protective search isn't limited to Terry.
Your original comment was;
And that's what people (or at least me) objected to, ie., this is why a pat frisk is done. If you had said (as you did much later) that this is what Terry was DESIGNED for, I would have had no problem with it. If you just spoke in haste the first time, then no quarrel, but it really does sound like your saying all (or even most) terry frisks are for officer safety. Again, in my experience, terry frisks are almost always done, if the person is some combination of young, male, not obviously wealthy, or minority. That tends to make me think they are fishing...you can disagree. But you always go on about experience. I have experience with the local cops...you don't.
My argument, whit, is that every time an LEO abuses X, or behaves like a general jackass, it lowers the the level of trust and cooperation in the population, and makes your job more difficult.
assume for the sake of argument that the demographical mix you posit is true - iow terry's are done more often on
male
minority
and young.
i would argue that has nothing to do with your claim that they are NOT for safety. i would argue that it strengthens my claimk they are done for safety.
do you want to compare and contrast the relative levels of violent crime as reported by the national crime victimization survey and the above mentioned demographic?
if you do, you would probably find that terry's are done more frequently within those demographics that are most often reported on by CRIME VICTIMS (not cops fwiw) as perpetrators of violent crime.
last i checked, politically correct or not, men committed more violent crime than women, young people committed more than old, and (certain) minorities committed more violent crime than others.
therefore, if terry is done for safety, you would EXPECT more terries on the demographics that commit more violent crime because they evidence more frisk factors.
again, these stats are not based on who COPS identify as perpetrators. they are based on the race, age, gender, ethnicity, etc. of crime perpetrators as identified by victims.
iow, the claim you are making strengthens my point, not yours.
i would expect cops to terry certain demographics more often than others, if they are being objective in their assessments.
just like i would expect certain demographics to be arrested more often for certain crimes. nobody accuses the cops of being sexist when they arrest men ten times as often (at least) as women for bank robbery, for instance.
disproportionately, iow, does not disprove what i said. it strengthens it.
again, not politically correct, but we can examine NCVS statistics for part I crimes, and it will support my point.
hth
i would agree. but it does not follow that because some cops abuse terry, that terry is somehow wrong.
again, some lawyers suborn perjury. does this mean that presenting witness testimony is then a suspect form of trial tactics, because some lawyers abuse it by presenting testimony they know to be false?
Actually, there have been more than a few state cases over the years that were referred to U.S. Attorney's offices because local LEOs messed up state constitutional or statutory protections that aren't recognized in the Federal system. Having only one-party consent for a taped incriminating telephone call, executing a duly-issued but insufficient state warrant that hits a state's exclusionary rule but might meet the Federal good faith exception, and yes, even getting some dynamite evidence from a trash cover, are all things that might be a problem under some state rules but not in Federal court. Although, frankly, nowadays many more local cases are referred to the Feds for the simple reason that Federal mandatory minimums and the U.S. Sentencing Guidelines can get crooks put away for much longer than is possible in many state systems.
Speaking of trash covers: some agents specializing in white-collar cases I once knew used to routinely swing by the subject's house on the first garbage pickup day after the investigation had gone overt, to pick up the subject's legally "abandoned" trash from the curb ahead of the garbage man. On a few occasions it was very interesting what the subjects happened to decide to throw away the week they learned they were under investigation. But the most amusing episode I recall was when the subject noticed the agents putting his trash bags into the back of their Crown Vic and immediately called his high-priced Wall Street lawyer. About 45 seconds later the AUSA's phone rang with an infuriated counsel on the line. After much high-priced bluster, the best argument counsel could ultimately muster against the practice was "it's just soooo UNFAIR!" Needless to say, that argument didn't work too well at the suppression hearing in U.S. District Court...
i agree. i have often pointed out that one bug in the system wherein certain states recognize far greater civil rights protections (privacy, etc.) is that it creates an incentive for feds to step in and take over criminal cases in that state, since the federal investigators operate under a broader discretion in regards to search a nd seizure, miranda, etc. in states that are more expansive with rights.
as a libertarian, i detest the expansion of federal powers. we were never supposed to have a national police force, but over time the fbi and other agencies have taken on quasi-police function.
i actually think the argument behind the warrantless search of garbage is valid (federal standard), after all, you give up an expectation of privacy in that which you leave out at the curb for some civil service workers to pick up and throw in the truck. otoh,. you expect them to throw it in the truck, not look in it.
you can tell a LOT about a person from their trash.
The question in Kylo was not what was searched but what level of intimate detail revealed. You have no REP in the heat signature but you do have an REP in the details of your home life.
This argument goes the other way around too -- you use Terry appropriately and therefore it is not abused.
IMO, Terry is quite justified so long as it is used in good faith by police officers sincerely looking for a weapon and not fishing for evidence. We all know what the difference is between a cop that legitimately feels for a gun/knife and one that pats you down so thoroughly he knows what brand of boxers you wear.
Ah, but Terry got them in the door into a cigarette box he has no business even knowing about since it's not a weapon and it has no bearing on officer safety. Simply put, he should not have ever become aware of its existence.
Suppose even further that the officer in question had no fear of a weapon (for the purposes of this exercise, we can read his mind), but effected the frisk solely to find some evidence. In this case, the power that we granted him for his protection is now being used disingenuously and that really bugs me.
And we could then get together and devise some new policies to decrease frivolous lawsuits while concurrently increasing the redress of real grievances. This isn't a zero-sum game.
Off the top of your head, give me a rough percentage of frisks that you think are (and feel free to add categories if you like):
(1) Done solely for officer safety and conscientiously ended as soon as it is apparent that there is no material threat.
(2) Done initially for officer safety but not extended beyond what is necessary to ensure there is no material threat.
(3) Done by an officer that has no fear for his safety in the first place.
My guess is 30-50-20, probably varies by jurisdiction (there are a lot of cops here that will say they always search as much as they think they can get away with by law).
I'm with you guys on this one -- the evidence gathered by a state LEO should be subject to state laws of evidence even if used in a criminal court. If you want to do a trash pull and can't get a warrant, get an FBI agent to do it himself (if it's important).
True. Also, for the record, I did not originate the "distressly" post!
my understanding, and i could be wrong, is that this (much like PC) is an objective standard.
iow, the issue is not "did the officer feel scared" (or apprehension or whatever), it's "would a reasonable police officer knowing what that officer knew and observed, be justified in their apprehension that the person might have a weapon"
i am not sure i grok the difference between 1 and 2. and i honestly have no idea how to compute the percentage.
my point is simple. people here are making histrionic claims (note: with no evidence) that terry is a violation of the bill of rights and that it's just an excuse for cops to search people to gather evidence... neither of which claim has been supported by evidence.
i concede, as does anybody with a brain, that some cops abuse pat frisks. and some cops abuse miranda. this says exactly nothing about terry qua terry, and does not support either of the above arguments.
people here have flat out stated that they don't LIKE terry and don't like cops being able to stop people short of PC. great. but we have the constitution we have, not the constitution they want.
are you saying this is a bad thing? apart from the pejorative language of "get away with (by law)" SHOULDN'T a cop generally search as far as he is legally allowed to? that makes sense to me. it's called diligence.
is the issue subjective intent? i've already addressed that. just because cop wants to search johnny dirtbag to "get him", doesn't mean the terry frisk isn't valid if there are the frisk factors present to justify it. what he WANTS shouldn't be the issue, the issue *is* (im0 and my understanding is the law agrees) was the frisk OBJECTIVELY reasonable.
terry is a matter of life and death. unlike so many other hypothetical and other concepts discussed here.
your 3 part hypothetical again raises the question i have yet to have answered.
is the terry standard an objective one or does the fact that the officer has a subjective fear (or doesn't) make a difference.
iow, given factors that would lead a reasonable and prudent police officer to suspect a weapon/fear for his safety, is a terry NOT justified if the particular officer in that case didn't FEEL fear, but would be objectively justified in feeling it? that's a serious question.
i think that question is relevant to this debate.
and your questions.
i assume you mean "FEDERAL criminal court"
fwiw, in my jurisdiction, what you have to do, as absurd as this sounds, is simply wait for the garbage man to throw the garbage INTO the garbage truck.
at THAT point, you can search it (and seize it) w/o a warrant.
you can even ride in the rubbish truck with the guys and just wait until they throw it in the bin (apparently that does not make them "agents" of the police, since they were doing it anyway).
so, it makes trash pulls a little less convenient, but still doable w/o a warrant. kind of quirky.
BTW, Zippypinhead most certainly did not live up to his nom de blog with his insightful comments on this this thread.
I think the pickup distinction makes sense. Until the point of garbage co collection, the owner could go back out to the curb and retreive something. After pick-up the trash is effectively beyond the control of the former owner.
I did make that comment, after "whit" started to be rather snippy to a commenter who disagreed with his view of the law. He has done this before, I'm afraid, so I made a comment to urge him to be more civil. As for the typo, I was in a hurry and "distressingly" became "distressly" in my haste.
Whit, I think you're right (though I don't know for sure) that it is an objective standard. But, since we are talking whether or not Terry should exist, it seems the question is should it be an objective standard. I would say no. If you make it an objective standard the question doesn't become one of officer safety, but how creative can the DA get in arguing officer safety. IOW, it does NOTHING to protect the officer. If the officer truly has objective reasons to fear his safety and is clueless about those, he clearly needs more training*. In that case, the purpose of Terry (promoting officer safety) is not addressed at all.
*Note this goes slightly further than your "intend to search for evidence" hypothetical. I'm proposing the officer searches for evidence without having particularized suspicion (subjectively), even though a more experienced officer would notice the objective reasons to have suspicion, and would actually, subjectively have particularized suspicion.
No he shouldn't. See the above hypothetical. Plus, you've acknowledged before that not all judges know the law. Frankly, in my opinion there are too many judges who will let anything in if the officer claims to have done it for officer safety. So, in that case it's not due diligence, it's unconstitutional searches. Granted in that case the problem is as much the judges as the overzealous police.
There is doing as much as the law intended to allow you, and disingenuously pushing the law as far as you can.
He was a thoughtful a man. As an aside, he wrote my high school sweetheart a full page, hand-written letter when she was a kid, urging her to enter into the field of Law, which I was allowed to read and was one of her most valued treasures. I do not agree that we have "balance on the court" any more, only one which long since, veers ever-right.
A real example of when having the Feds step in made sense: I am intimately familiar with a case many years ago that started out as a domestic disturbance call that two local patrolmen responded to. It quickly escalated into a full turn-out by the department's tactical unit. After breaking down the door and subduing the defendant, SWAT had to call in the department's bomb squad (the Captain in charge of the unit later testified that this was the only time in 2 decades in law enforcement that he'd ever gotten scared AFTER a situation was ostensibly over). The bomb squad took one look at what they were dealing with, evacuated the neighborhood, and called in Army EOD to actually clean up the mess. The local State's Attorney wisely declined jurisdiction in favor of the Feds because the tools he had at the time would have gotten the defendant -- a fellow with a long criminal history, a well-established "anger management" problem and a knack for obtaining really spectacular "destructive devices" as defined in 18 U.S.C. §921(4) -- a two-year mandatory minimum with anything above that at the unfettered discretion of the judge. Under the Federal system, the defendant started at 15 years minimum and it quickly went up from there. At present the Federal Bureau of Prisons is entertaining the guy until he will be far too old to pose much of a threat to society, or so everyone involved fervently hopes.
i strongly disagree with this. ceteris paribus, objective standards are better for a whole host of reasons. we can discuss those if you want.
the point is that if i am more confident than another officer, i may feel less (or even no) apprehension or fear in a given situations where another officer might feel fear. the issue here should not be our FEELINGs, the issue should be *are the feelings reasonable given the officer's training and experience and the facts and circumstances known to him at that time*. if that is NOT the case, and we take feelings into account then we are justifying more intrusive and frequent frisks merely based on an officer's subjective impression/scareditude vs. objective facts and circumstances. i would hope you could see why this is bad.
PC is rightly so an objective standard. the issue is NOT "do I officer Whit believe that the person in question committed the crime". the issue is "would a reasonable and prudent police officer knowing what i know and with my level of experience and training reasonably believe the person committed the crime".
frankly, there are cases where i DISBELIEVE the person committed the crime, but i am forced by the mandatory arrest laws and objective PC standard in making ann arrest - certain DV cases. that is the law. it's an objective standard.
just as i don't want judges "divining intent" in judicial review, i don't want them concentrating on feelings and intent of the officer, i want them concentrating on objective reasonableness of the actions given the fact pattern known to the officer.
it's better than PC is an objective standard, and i fail to see why RS should be a subjective standard.
i see no basis for your belief here.
also, let's get something straight here. Terry frisks are based on the concept that GIVEN certain factors it is reasonable to frisk, just as given certain factors it is reasonable to draw your gun, or use various levels of force, etc.
iow, that officers have justification to use various levels of force (and procedures such as frisk, felony stop, proning out etc.) based on the facts and circumstances known to them.
this is a fundamental concept of officer safety and helps us make our job MUCH safer, not just for us, but for suspects and civilians, generally speaking. by using lower levels of force etc. and not using certain procedures, it is actually more dangerous for the suspect, cops and bystanders because it's frequently more likely that it will escalate out of control and necessitate an even higher level of force. i could give ten million examples, but this is a fundamental concept of officer safety that imo is inarguable.
given that, an officer can't (for example) approach john doe whom he knows nothing about, with gun drawn. for good reason. if john doe happens to be an escaped murderer and is planning on assassinating any cop who comes near him, that's just tough luck for the officer. he's probably #$(#$(.
i once approached a guy sitting on a bridge, who had been called in by passers by as leaning over the railing possibly considering jumping or feeling ill. i had no reason to believe he was armed. in fact, he was a former special forces guy, and had staged a gun fully loaded just under his leg. as soon as i approached and started talking to him, and tried to convince him to walk with me off the bridge, he grabbed the gun and pointed it at his head. obviously, it would have been MUCH safer not to approach the guy at all and drawn my gun at him from a safe distance and behind cover *if* i knew the stuff i didn't know. iow, cops can only act on relative probabilities, past experience of similar scenarios, knowledge of the individual's propensities and history, etc.
it's an imperfect system, of course. because knowledge (and performance) are limited and imperfect.
however, DESPITE the high # of people intending to do us (and you) harm, the high # of contacts we make with such people, etc. the statistical incidence of officers being harmed/killed is relatively low. WHY? very simple: proper officer safety. it *is* a science and an art and it has evolved immensely in the last several decades. technology (vests and tasers) have also saved thousands of lives, tasers undeniably so as any statistical study of any decent size agency that adopted them will show.
i am well aware that some people think terry is some kind of "trick" so officers can search people for stuff and get drugs off the street. the reality is that terry is for safety and it saves immense amounts of injury (suspect and cop) and life. period. that drugs (and sometimes other contraband) are sometimes found during terry is either a feature or a bug. imo, since the drug war sucks, it's a bug, but it's also reality.
like i said, i personally wouldn't lose any sleep if the state legislature ruled tommorrow that all evidence seized pursuant to terry be inadmissible in court (assuming they have such power to do so). would more guilty people go free? sure. but the POINT of terry is NOT evidence, it's lives saved.
however, we have a constitution that says if you are lawfully there (whether that "there" is in a search of a person or a building) and you find stuff, that stuff *is* admissible. deal with it.
Whit, you're contradicting yourself. You said above that Terry is only about admissibility because the officer who has a feeling that is not based on objective criteria is going to search anyway because it's a safety issue. Given that, we are not justifying more searches, we're merely determining whether or not the evidence gets in. As I said, once the search is done, both the police officer and the DA have an incentive to come up with an objective justification. If they don't, the evidence, and most likely the case, get tossed. Despite your saying over and over that police don't care what happens after the arrest, most officers do. Most officers do believe they work for the DA.
I can see that in certain circumstances (such as the one you described), the feds MIGHT be invited to take their own look-see. However, too often it seems to be a failure to trust the local prosecutors for one reason or another or (as in your example) the federal punishments are more draconian than the state's.
I say all of this as a prosecutor who has spent his career in the state system but who also believes that federalism shouldn't include shopping cases to the feds that belong in state court.
Unfortunately, the line-drawing may come down to an "I know it when I see it" test, and different people see things very differently. At one extreme are teenagers caught with a couple of nickel bags in their public school lockers, at the other extreme are national security threats. But there's a lot of turf in between. And of course, a lot of referrals into the Federal system are either initiated by local prosecutors, or are the result of joint local/Federal partnerships, like Project Exile and its follow-on programs in several metropolitan areas.
Having been a prosecutor on the Federal side of the house, I suspect my perspective is a bit different from Dave N's, but I recognize his concerns are valid, both as a matter of Federalism theory, and for purely practical reasons. From my narrow parochial perspective, the biggest downsides of the Federalization of traditional state crimes have been (1) increased budgetary and workload pressure on the Federal system, with the risk of mis-allocation of scarce Federal enforcement resources, (2) potential mis-application of the one-size-fits-all Federal Sentencing Guidelines when local considerations might suggest more flexibility and/or leniency is appropriate in a given case; and (3) in cases like medical marijuana where there are clearly differing community values and views of whether activities should, in fact, be illegal, taking discretion away from local lawmakers and enforcers.
Incidentally, a steady diet of what can be called traditional state criminal cases was one of the major reasons Walter Kelley resigned from the bench in the Eastern District of Virginia last year. His departure, including a series of bridge-burning comments as he left that upset a lot of participants in the system, made his departure into rather interesting theater.Details here.
Final thought: Next topic suggestion for Professor Kerr: local law enforcement officials want the legal authority to jam cell phone transmissions, like the Secret Service apparently did during the Obama Inauguration parade. Discuss...
But even in joint jurisdictions things aren't necessarily fair.
In my location, the US Attorney and the County District Attorney once boasted to the media that they would compare and see which jurisdiction carried the most punishment and agree to prosecute in that one.
It became evident from that remark that these two did not clearly understand their roles and viewed them as a game, not justice. In effect, a score was to be kept by the amount of "time" which could be heaped upon a defendent, rather than a case-by-case, careful analysis of what was appropriate to each case.
i'm not sure what your point is here. i said, and anybody honest will agree, that if a cop gets the major hair standing up on the back of his neck but he can't quite justify it with objective frisk factors, he may frisk anyway. is that a frisk wherein anything found will and should be SUPPRESSED? yes. but those are going to happen occasionally.
my point is that the standard for ADMISSIBILITY should be objective, not subjective.
so WHAT? the officer is still required to be honest and not try to make up reasons that don't exist. PER-I-OD.
DA's are MORE than happy to nolle pros cases when officers tell them that the search/frisk was a "rip" (iow not objectively justifiable) imo.
furthermore, as i have said numerous times, many of these cases will never make it TO a DA, since the officer (assuming he found something) will not submit the case for charging.
imo and ime, most officers are way more concerned with telling the truth and their credibility than winning a case.
i am not aware that most officers believe they work for the DA. if you are privy to some reason for believing this, let me know.
until we start holding legislators ACCOUNTABLE for increased govt. powermaking, they will continue to do it.
the war on drugs and the war on domestic violence have both contributed significantly
(You've stated several times on this topic that what's most important is that the officer tell the truth. e.g., this comment: "imo, what's important is that the officer be truthful and not try to 'make a bad case good' after the fact by inventing or stretching facts to justify ex-post facto. that is inexcusable." But that's wrong. Well, it's not wrong that it's inexcusable; it's wrong that it's what's important. The officers not being criminals is what's important. Neither telling the truth nor suppressing the evidence eliminates the original crime. Suppression is intended to be a deterrent, not a cure.)
And yes -- not to sound like Bruce_M -- I understand that some of these situations are close calls and reasonable people may disagree as to their legality. But anybody involved in the system knows that many are not -- and you yourself posit such a situation in the portion of your post I quoted: "a cop gets the major hair standing up on the back of his neck but he can't quite justify it with objective frisk factors, he may frisk anyway." So we're not just talking about situations where the cop thinks he has reasonable suspicion but the court doesn't; we're talking also about situations where the cop knows he doesn't, but does it anyway.
Do you think it is practical to construct a system where an officer really, really thinks a frisk is needed for his safety, but can't - I mean really can't, because of draconian, rigorously enforced penalties or whatever?
In such a system, what kind of person would become a policeman? The totally reckless? The dimwit? The absolutely reckless?
I wonder if we aren't all on the wrong track - on one hand, as a society, we're not too good at getting the worst 5% of the police force to find other careers, and on the other we try to construct a system where even the worst 5% can do no harm. Maybe we should try harder to get rid of the proverbial bad apples, and give more leeway to the remainder.
the absolutely recklessthe absolutely desperateThis is close to insane.
First, it would make it "very hard" (1 chance in 20?) to catch rapists, child molesters, arsonists, poisoners, wife-beaters, counterfeiters, extortionists, and embezzlers, to give a brief selection of criminals who operate exclusively "out of sight". It would be almost as obstructive in the apprehension of armed robbers, burglars, car thieves, or hijackers, if they are not stupid enough to offend with police in sight.
Second, it appears to privilege police testimony to an extreme level. Are police to be the only trusted witnesses? That would be really good for personal liberty. Not! Practically speaking it would make police all but immmune to the law themselves.
Third, if adopted, it would mean either the collapse of public order or an enormous expansion of the police, sufficient to provide continual observed security everywhere: the most obtrusive police state in history. Should there be a cop on every street corner 24/7?
Or else a mixture of vigilantism and gang protection, with a revival of lynching and most citizens paying "protection" to the Mafia, the Gangster Disciples, Maratrucha Salvadora, or the Hells Angels. That doesn't look good for personal liberty either.
While not what Bruce M said, I can modify that slightly and get a much better result. Any stop performed without a warrent and without personal observation that a crime was committed should be unlawful. Get rid of the entire reasonable suspicion line and liberty is enhanced while leaving enough power to thwart actual lawlessness. Slower? Sure. But it also removes many of the most contentious citizen-officer encounter situations.
I don't know if Bruce M was just overlooking the warrent possibility or what. I have reason to believe he wouldn't limit the evidence supporting a warrent request to officer testimony. But with a valid warrent you cure nearly all of these potential issues.
Whit, don't play dumb. You said that having a subjective standard rather than an objective standard would result in more searches, because there may be officers who don't feel safe even though it's not reasonable. Specifically, you said;
IOW, you say that we are justifying more intrusive and more frequent frisks if we have a subjective standard...after saying that an officer is going to frisk anyway if they don't feel safe. See A and B don't fit. If the officers are going to search anyway, we are not going to have more frequent frisks...we are just talking about admissibility.
As for your notion that DA's and cops will rack their brains for anything to drum up reasonable suspicion via an objective standard, but somehow they magically won't lie, I guess you've just been blessed by never meeting an overzealous cop. I realize that officers are "required" to not lie. But, as a practical matter, they will never be charged if they do. At least that's the way it works in my jurisdiction. Judges, DA's and other officers (who after all are supposed to uphold ALL the laws, including the ones against perjury.
And yes, when I say lie, I mean lie. Numerous officers routinely write police reports that disagree with the audio they carry. They go into grand jury and testify falsely based on what you hear on the audio, and they go into trial and do the same thing.
You ask why I believe that many officers believe they work for the DA. Simple. Many officers will say whatever they think the DA wants to hear. I've also had officers tell me they couldn't talk to me unless they get permission from the DA. Finally, most officer won't talk to me (or any other defense attorney). But they all talk to the DA before trial.
Maybe you see another way to interpret those facts...I don't.
no, i don't. i accept RE-A-LITY. i accept that it happens, that it has always happened and will always happen.
like i said, i have had both defense and prosecuting attorneys acknowledge that they won't lose any sleep over it. it's tangential to most of the issues being discussed here.
if you want to impose some sort of punishment for instances where that happens, feel free to try. i don't think most citizens would support it so i don't see initiative as the route. maybe the legislature?
again, i'm being pragmatic and dealing with reality. if you are offended by the heinous crime of cops occasionally frisking when they may not have enough RS to do so, and feel that it needs strong remedial action then feel free to propose such remedy through the legislature.
i am saying what actually happens in the real world. cops want to go home alive. it's that simple.
of course. a cop is going to rely on his instincts when those instincts are sometimes all that prevents him from being injured or killed. and if it doesn't meet the threshold of terry on that rare occasion, then any evidence found (fwiw, the VAST majority of terry's reveal no evidence ime) should be suppressed.
and if you are so offended by this heinous crime and the constabulary run amok then go ahead and remedy it with some sort of legislation or something.
this was a tangent i brought up because i am honestly discussing how stuff actually happens. in the real world. NOT in a courtroom where people get a skewed view since they only see a small %age of the results of frisks and never the VAST majority that never make it into court.
soronel, that's a wonderful idea except the constitution doesn't require it. so, if you want it to be so, work to amend the federal constitution, or your state constitution or pass some kind of prophylactic law.
the thing is we operate with the constitution we HAVE, which does NOT require one of your two requirements: 1) a warrant or 2) actual witnessing of the crime in order to make a stop.
if you WISH to live in a world with a different constitution, then work to make the changes.
but those of us in the real world deal with the constitution we have, not the one you desire.
also let's note the results of your wish.
a guy stabs two people and when the cop arrives he is done stabbing them and calmly smokin' a cigarette.
since the cop doesn't have a warrant, he cannot even STOP this person. he can interview the (dying) victims and witnesses. he can take 10 witness statements identifying the suspect. heck, he can see the guys blood soaked hands.
heck, the guy yells out to the cop "I stabbed those people but you have no authority because you don't have a warrant and you didn't witness the crime. have a nice day".
and calmly walks away. after all, he has more people to stab and in your world the cop has to witness it or start working on his warrant.
seriously. are you SERIOUS? this is the world you want to live in?
i am saying subjective standards are worse for a whole HOST of reasons. i gave ONE.
we have an objective standard for PC. does ANYBODY think it should be subjective? RS should be no different.
nice strawman. i never said that none of them will ever lie.
for pete's sake ... READ WHAT I WROTE.
some cops lie
some DA's lie
some defense attorneys lie
some witnesses lie
some "victims" lie.
does ANYBODY dispute this?
again, another falsehood. how many can you rack up? i'll give you a conspicuous example. mark fuhrman. pled guilty to perjury. a felony. for lying about having used the "n" word in the past.
so, this is simply a falsehood. numerous other examples. i just chose a famous one.
well, i don't know you. but i know just in the course of this brief thread you've misstated what i said (i never claimed cops would never lie) and also made false statements about (for example) that cops are never prosecuted for lying.
maybe they just don't want to talk to YOU because they are aware of your pattern(s) of behavior.
i don't really care.
it's not relevant. cops don't work for the DA nor do they work for the defense.
you clearly have an incredibly adversarial and anti-police attitude and you question why police don't want to talk to you. well, i could not imagine WHY?
I remind you yet again: Keep it civil. Yes, that means don't insult or talk down to people, even if you think they are wrong.
You also don't know the police in my jurisdiction. Somehow magically you seem to be able to assess their behavior better than I do. As for it just being my "anti-cop" attitude that prevents them from talking to me, you are ignoring the fact that they don't talk to any defense attorneys, or that they will actually tell me they need permission from the DA to talk to me.
But, frankly, that's how the cops in my jurisdiction tend to act. Come up with a theory, then act on that theory while ignoring all contrary evidence, no matter how strong.
well then your jurisdiction sucks.
fwiw, i've talked to defense attorneys and far more frequently defense attorney investigators.
what's the big deal.
i always tape the interviews (with their knowledge) and they usually do the same.
here's a hint. don't extrapolate from your experience in one jurisdiction, to "this is how it is everywhere".
fwiw, i've worked several jurisdictions, on both coasts and in hawaii. i have never witnessed the kind of behavior you witness in yours.
sounds like an interesting place to work. cops, defense attorneys, and prosecutors all run amok.
There are any number of circumstances when LEOs are allowed to lie. They can, for example, lie about the speed that registered on their radar so they can get you to 'self-report' a speed which might have been higher than the actuality; or lie to gain a confession, ie, 'Your buddy confessed, there is no point denying it now.'
On the other hand, lying to the LEO can result in a felony conviction.
all true, but i think he was referring to courtroom settings.
federally yes (yet another reason to support local not federal law enforcement). generally speaking, lying to a local law enforcement officer is either not a crime, or is a misdemeanor, depending on circumstances.
in WA state, giving a false material statement to a police officer is a misdemeanor.
same is true in HI.
lying to federal investigators is generally a felony, as martha stewart found out.
false material statement is most often charged when people give false names pursuant to a stop (PC or RS).
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