4th Amendment

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No right to privacy in your car

The Pennsylvania Supreme Court recently held that despite decades of precedent, a warrant is no longer needed for an officer to search your car.

There was a front page article about this in the Pocono Record last week in which I am quoted.  Here’s the article:  Police Car Lights

By Howard Frank
Pocono Record Writer
May 02, 2014

Police in Pennsylvania can search your vehicle without a warrant, according to a ruling handed down by the state’s Supreme Court. All they need is probable cause.

Law enforcement considers it just another tool in its arsenal to fight crime. Others believe it erodes privacy rights under the Fourth Amendment of the U.S. Constitution, which protects citizens’ property against unreasonable searches and seizures.

It’s referred to as the “motor vehicle exemption.”

The state Supreme Court justices agreed to adopt the federal standard of allowing a warrantless search of a motor vehicle, whether or not there are exigent or urgent circumstances. The only thing police require is probable cause.

In the past, police could only conduct a warrantless search if there were exigent circumstances, such as a motorist not in custody during a stop who has an opportunity to flee with evidence or destroy it.

Otherwise, police had to secure time-consuming search warrants from judges, a process that increased the chance the subject might flee.

“It seems the changes for us as law enforcement are the timing aspect during a traffic stop, when there is a potential for evidence to be destroyed,” Pennsylvania state police spokesman Maria Finn said.

It’s not an earth-shattering change, Stroud Area Regional Police Capt. Brian Kimmins said.

“You still need probable cause, the same probable cause you need to apply for a search warrant, which you have to apply for in court.” he said.

Kimmins still sees his department operating with search warrants and continuing to seize vehicles to search under more controlled conditions. State police are reviewing the decision and working on guidance for its troopers, Finn said.

“However, probable cause is still probable cause. Our troopers will still need to have probable cause before conducting a search-and-seizure of a vehicle, say on a traffic stop. The trooper must articulate the probable cause in an affidavit or attribute it in a report,” she said.

The Supreme Court’s new guidelines shift the burden in some cases of determining probable cause from a judge to a police officer or trooper. A mistake can be costly.

“There are certainly ramifications if it’s a bad search,” Finn said. “The defendant could seek to suppress the search and seizure, if applicable, or even sue the department.”

The Supreme Court justices are not living in reality, according to one Stroudsburg defense attorney.

“The problem with a lot of these justices is they don’t deal with real life and never worked in the trenches,” lawyer Michael Ventrella of Fisher & Fisher said. “They have this idealized notion that the police are never wrong and never abuse their discretion.”

When Ventrella moved to Pennsylvania 15 years ago, he was astounded at the number of individual privacy rights Pennsylvania had compared to his liberal-leaning former home state of Massachusetts. But, he said, that’s eroded over time.

“Over the past 15 years, the courts have whittled it away,” he said.

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Government says Government is illegal

An independent government committee has determined that the NSA program targeting American citizens is (surprise!) illegal.  obama-shepard-fairey-nsa-prism-1Well, most of the committee did — the two Bush appointees dissented.

Their report concluded that the collection of bulk phone records has provided only minimal protections at a huge cost to our freedoms.

Obama’s recent speech on this topic was about as weak as it could be.  He spoke of the need to have spies and intelligence gathering (which no one disagrees with) and tried to convince us all that therefore, this was not too great or unusual.   Admittedly, he also said the program should be cut back, but he wouldn’t go so far as to question the need for it in the first place.

The Bush people disagreed that the program was illegal (let us not forget that the program started under Bush, with his “Patriot” act) but did agree that it should be stopped nonetheless.

But seriously, the blame falls on all of government — Congress approved the Patriot Act, after all, and for Congress to now claim that they are shocked that the NSA is doing things they gave them permission to do is ridiculous.  Obama is also responsible.  He voted against the Patriot Act extension as a Senator but expanded it once he became President.  (Ironically, he has spoken of the need to cut it back once he’s out of office, with the pretentious idea that he can handle this but some other President couldn’t.)

Let’s hope this leads to the Supreme Court finding the Patriot Act unconstitutional.

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World’s easiest law school exam question

You don’t even have to go to law school to get this one right:

Is it Constitutional for the police to randomly stop people on the street and search them?

I mean, duh, you’d have to be really stupid to get that one wrong, wouldn’t you?

Well, I suppose you could be the Mayor of New York. Or a bunch of people who apparently have never taken the time to read the Constitution.

But a court recently ruled in a “No, duh” decision, that New York city’s policy of randomly stopping young black men and searching them for no reason was not allowed.

Sadly, I wish they’d go farther. The 4th Amendment says “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.”police car

Requires a warrant. Clear and plain as day. No exceptions listed.

The courts, of course, have found exceptions to this all over the place, the most obvious one being that police can search if they have “reasonable suspicion” that a crime is being committed or that the suspect is armed and so on. The general idea of “reasonable suspicion” is not bad — I don’t mind letting police search someone for their own safety after an arrest — don’t want to waste time getting a warrant in every single instance. But that has been defined in such a way lately that they can search in almost every instance. The next logical step was, of course, a policy like New York city’s, which, for quite some time, was perfectly legal.

Mayor Bloomberg, meanwhile, said he’d appeal, so this isn’t over. Your tax dollars at work.

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Supreme Court OKs internal searches without a warrant

The courts had previously ruled that taking of your blood for DNA purposes is basically a “search and seizure” protected by the 4th amendment and cannot be done without a warrant. Now that science has progressed to the point where cotton swabs of your saliva are enough, the Courts have said “Oh, well, that’s different” because, um, because we said so.

Apparently, your right to be free from a search doesn’t apply if the search is not bothersome. Clearly, therefore, if the police come into your house without a warrant and wear white gloves and put everything back afterwards, that would be just fine too.

Stock Photo of the Consitution of the United States and Feather Quill

If you’re a cop and you think someone is a suspect and you need DNA, and you have probable cause, you can get a warrant for DNA. It’s done all the time. You go to see a judge, present your evidence, and the judge says yes or no. (And yes, good judges do say no from time to time. I’ve seen it happen.)

This case, however, was about getting DNA on anyone who gets arrested. No need to see a judge first to prove you have probable cause. So those cops who randomly stop minority kids in New York and arrest them on “loitering” or other minor charges? You can bet they’ll soon be carrying cotton swabs around with them.

So why is this a bad thing?

It’s bad because this is self-incrimination. You know, the thing prohibited in the 5th Amendment. You are being forced to provide evidence to the police against your will which could be much more incriminating than any confession. They don’t need your DNA for identification purposes — they already know who you are and can probably confirm that through your fingerprints — it’s being used to help build their case against you.

That’s the difference and that’s the problem.

Remember, we’re talking about people who are arrested, not convicted. Many people are arrested and never convicted. Sometimes the charges are never even filed. Once you are convicted, having to provide DNA as part of your probation requirements is perfectly valid, because you lose many rights once you’re convicted. This, however, takes away your rights before you are even charged.

The most surprising thing about this decision is that Scalia voted with the liberals. Every once in a while the voices in his head that he thinks are the Founding Fathers tell him the right thing, I suppose.