Profiling Muslims is a bad idea and it’s unconstitutional

June 21, 2016

In his OpEd yesterday in the Washington Post titled, Trump’s special version of Jim Crow — for Muslims, Eugene Robinson wrote,

On Sunday, “Face the Nation” host John Dickerson reminded Trump that last year he had raised the idea of “profiling” for Muslims and asked him to elaborate. Trump’s response: “Well, I think profiling is something that we’re going to have to start thinking about as a country. Other countries do it,” he said, naming Israel, and “we have to start using common sense.”

Reuters reported late last week,

Muslim-Americans have repeatedly informed authorities of fellow Muslims they fear might be turning to extremism, law enforcement officials say, contrary to a claim by presumptive Republican presidential nominee Donald Trump this week.

“They don’t report them,” Trump said in a CNN interview on Monday, in the wake of the mass shooting at an Orlando nightclub of 49 people by an American Muslim who claimed allegiance to Islamic State. “For some reason, the Muslim community does not report people like this.”

But FBI director James Comey said, “They do not want people committing violence, either in their community or in the name of their faith, and so some of our most productive relationships are with people who see things and tell us things who happen to be Muslim.

“It’s at the heart of the FBI’s effectiveness to have good relationships with these folks,” Comey said at a press conference following the Orlando shootings.

In addition profiling Muslims is a violation of the reasonable-suspicion-based-on-articulable-objective-facts test of the 4th Amendment. It also violates the Freedom of Religion Clause of the First amendment.

Donald Trump and his supporters like to base their arguments on “common sense.”

Hogwash. If we relied on “common sense,” for example, we would still believe that the Earth is the center of the universe with the Sun, the planets and the stars revolving around it. We also would believe in magic, the supernatural and witches who consorted with the Devil. In Europe from approximately 1480 to 1650, the Inquisition murdered approximately, 80,000 to 100,000 mostly poor and elderly women for practicing witchcraft. After obtaining confessions through the use of torture, they burned them at the stake.

Since the Age of Enlightenment, we’ve been relying on evidence-based reasoning to question common-sense assumptions about reality. In the name of “common sense,” Trump and his merry band of idiots want to turn back time and recreate the witch craze. He has already promised to use torture to extract confessions. How many Muslims is he going to detain, torture and kill before we the people have to end the slaughter?

Hitler exterminated 6 million Jews less than a century ago.

There are 1.6 billion Muslims in the world. Will Trump exterminate them?

We need to make sure he loses the election.


Could the prosecution’s case against Craig Wood be derailed by a warrantless search?

February 26, 2014

Wednesday, February 26, 2014

Good Afternoon:

I recently commented in response to a question raised by Betty-Kath regarding the warrantless entry into Craig Wood’s house by the police to search for Hailey Owens and their use of information, which they acquired during that search, to obtain a warrant to search his house for evidence that he had kidnapped and detained her in his home.

I said I did not believe the warrantless entry would affect the outcome of the case.

I reconsider my answer today and explain why the warrantless entry could jeopardize the prosecution’s case.

Detective Neal McAmis referred to the warrantless entry into Wood’s residence in his affidavit attached to the complaint:

Officers did a safety sweep of the residence to search for Owens. When the officers got to the basement steps, they could smell a strong odor of bleach. The odor continued as they entered the basement. The officers informed me the basement floor was wet. They also said they saw bottles of bleach in the basement.

On 02/19/14, at 0128 Detective Barb obtained a signed search warrant to search Craig’s residence. Several crime scene technicians responded to the scene. In the basement the crime scene technicians located two plastic storage totes. They were stacked one on top of the other. There were papers and documents in the top tote. In the bottom tote was what appeared to be the body of a small child. The body was concealed inside two trash bags. The crime scene technicians removed the trash bags and confirmed it was the body of Owens.

(emphasis supplied)

Detective Barb also applied for a second search warrant of the residence a little over 12 hours later during the afternoon of February 19th. In that affidavit, he described what he found during the search earlier that day, including firearms, video cameras, a computer, digital storage media, child pornography, cleaning fluids, journals and bedding, and he requested a search warrant authorizing him to search for and seize those items.

He did not mention the earlier warrantless search.

The issues the court may have to consider before this case goes to trial are whether the initial warrantless safety sweep of the residence was unlawful and, assuming for the sake of argument that it was, the second issue is whether any information obtained during that search was used to obtain a subsequent search warrant.

If so, that may invalidate the search and result in the suppression of the evidence seized. Without that evidence, the prosecution might not be able to convict Wood.

The general rules:

(1) A search of a residence without a warrant is unlawful unless an occupant voluntarily consents to the search or exigent circumstances exist that would make it impractical and unreasonable to obtain a search warrant, such as an entry in hot pursuit of a fleeing suspect (see United States v. Santana, 427 US 38 (1976)), an entry to prevent the destruction of evidence (see Kentucky v. King, 131 S.Ct. 1849 (2011)) or an entry to prevent someone from suffering imminent injury or death.

(2) The police cannot use “fruit from the poisonous tree” (i.e., information obtained unlawfully) to establish probable cause (i.e., reasonable grounds) to believe that a residence contains evidence of a crime.

Consent, hot pursuit and preventing the destruction of evidence are not applicable.

Thus, the question the court will have to resolve is whether the warrantless entry was reasonably necessary to prevent someone from suffering imminent injury or death.

The problem for the prosecution is that the police arrived at the residence before Wood arrived. They were waiting for him and when he arrived, they pulled into his driveway and parked behind him, preventing him from backing out. They took him into custody and transported him to the station house for interrogation.

The warrantless entry into his residence took place after Wood was removed from the scene.

With their only suspect in custody and no particular reason to believe that Hailey Owens was in the residence and in any immediate danger, if she was, I am not seeing any evidence that would justify a warrantless entry into his residence to prevent her from suffering imminent injury or death. Absent probable cause to believe that, the warrantless entry would be unlawful and any evidence seized as a result of it would not be admissible.

I also do not see them acting as though they believed she was endangered in the house. Moreover, the absence of any reference to the warrantless entry in the second affidavit for search warrant appears to have been a deliberate omission that the defense probably will interpret as deliberate.

The prosecution may be able to navigate its way through this potential disaster, if it can satisfy the court that (1) no information obtained during the warrantless entry was relied on to obtain a search warrant, or if they did rely on it, they relied on other independent evidence with which to establish probable cause, such that they would have discovered the evidence they seized even if the information obtained during the warrantless search were excised from the affidavit for the first search warrant that was issued at 0128 on February 19th.

How this potential issue is resolved may determine the outcome of this case.


New information in Zimmerman affidavit for search warrant

November 26, 2013

Tuesday, November 26, 2013

Good morning:

The Orlando Sentinel has the latest report on George Zimmerman.

According to the search warrant, Zimmerman talked to deputies after he was taken into custody. He told them that he and Scheibe had lived together since Aug. 23, that she was pregnant with his child and that they had agreed earlier that day to separate.

He said his plan was to move to Texas, according to the warrant.

He told deputies that as he was packing, Scheibe began to throw his belongings around the house, including two of his guns, the shotgun and one of the handguns.

In a recorded phone call with a dispatcher, he said he had not pointed a gun at her. He told deputies in his face-to-face interview that he had not touched or pushed her, according to the warrant.

He also told deputies that he had recorded the argument on his cell phone. Deputies seized two, a black Apple iPhone and a Blackberry.

But his claim of having recorded what happened does not mesh with paperwork filed by his lawyer last week. In it, Zimmerman asked for the return of both of those phones, alleging they had no evidence related to the case.

Deputies got the warrant, suspecting that Zimmerman had locked away the shotgun after the confrontation but before deputies unlocked the door and pushed their way inside.

Deputies found the guns in a black soft-sided case secured with a combination lock, according to the warrant.

This information would have been listed in the affidavit for the search warrant.

When Samantha Scheibe denies that she was pregnant and denies that she ever told him she was pregnant, I expect we will hear the defense accuse her of lying and having an abortion. This will be added to accusing her of screwing him literally and figuratively for a BIG payday selling her story.

I’m tired and disgusted with this little man’s games.

If Florida can’t lock him up, maybe Texas will.


Analysis of the prosecution’s case against Philip Chism

November 22, 2013

Danvers High School ...item 1a.. Pictured: Boy, 14, 'caught on camera dragging teacher's body into woods' (23 October 2013) ...item 1b.. UPDATED: 16:55 EST, 21 November 2013 ...

Creative Commons on Flickr by Marsmettn Tallahassee

Friday, November 22, 2013

Good afternoon:

Go to this link to read the 9-page affidavit filed in support of the application for a search warrant in Philip Chism’s case. Warning: Contains graphic details.

Today I am going to analyze the prosecution’s case against Philip Chism and ask readers to indicate which of three alternative ways of proving first degree murder they would select, if they were to prosecute this case.

The prosecution is not limited to proving only one theory. Separate verdict forms can be submitted as to each alternative way of proving first degree murder. To convict him of first degree murder, the prosecution need only prove one alternative. Proving one, two or all three alternative methods of committing a crime only proves one crime and only one sentence may be imposed for that one crime.

Even though Philip Chism is only 14-years-old, he will be prosecuted as an adult because Massachusetts has a statute that mandates the prosecution as adults of all juveniles over the age of 13 who are charged with murder. If convicted, he cannot be sentenced to death because Massachusetts does not have a death penalty.

He also cannot be sentenced to life without possibility of parole (LWOP) because the Supreme Court of the United States (SCOTUS) has prohibited sentencing juveniles under the age of 16 to LWOP.

He cannot be prosecuted as an adult for the charges of aggravated rape and armed robbery unless the juvenile court declines jurisdiction. Therefore, he will have to be arraigned in juvenile court on those charges.

After the arraignment, the prosecutor will file a motion asking the juvenile court to decline jurisdiction and to transfer those two charges to adult court for adjudication on the grounds that, if convicted, the court lacks the resources to rehabilitate him before he turns 21 and the alleged crimes are an inextricable part of a single criminal episode that includes the murder over which the juvenile court lacks jurisdiction. Readers can reasonably expect the juvenile court will grant the prosecution’s request.

Philip Chism will be arraigned on the three charges in adult court. Pleas of not guilty will be entered on his behalf and his counsel will be provided with discovery.

Eventually, he will have to decide whether to go to trial and contest the charges or plead guilty.

Every defendant in a criminal case has a right to be presumed innocent and go to trial, even if he committed the crime(s) charged, and the jury must be instructed to return a verdict of not guilty as to each charge, if the prosecution fails to prove it beyond a reasonable doubt.

Given his confession that is confirmed by the videotape from a hallway camera showing him entering the women’s bathroom while wearing a jacket, hat and gloves and departing sometime after that with her body in a recycling bin, little doubt exists that he killed her while acting alone.

First degree murder in Massachusetts is defined by Chapter 265, Section 1 as:

Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree.

Notice that there are 3 ways to commit this crime:

(1) Murder committed with deliberately premeditated malice aforethought;

(2) Murder committed with extreme atrocity or cruelty; or

(3) Murder committed in the commission or attempted commission of a crime punishable with death or imprisonment for life.

Analysis of the statute

The prosecution may be able to prove that he committed the murder by each of the following three methods.

He came to school with a box cutter, balaklava ski mask, gloves and multiple changes of clothing strongly suggesting that he premeditated the murder with malice aforethought.

The second option does not require proof of intent to kill or premeditation, if the murder itself demonstrated extreme atrocity or cruelty. The use of a boxcutter to slash her throat from behind while gripping her hair and pulling her head back suggests extreme atrocity or cruelty as would the use of the box cutter ante mortem to penetrate and slash her vagina (see below).

The third option is a felony-murder rule that does not require proof of intent to kill or premeditation, if the murder occurred during the commission of a felony that can result in a life sentence. Aggravated rape and armed robbery are felonies that can result in life sentences, so a murder committed during the commission of either those felonies would be a first degree murder.

Aggravated rape requires proof of penetration of the vagina, no matter how slight, with the penis or finger(s), or an object and proof of the use of force or threatened use of force. Massachusetts defines penetration of the mouth or anus as “unnatural sexual intercourse.”

Proof beyond a reasonable doubt of any of the following three felonies will satisfy the use-of-force element:

(1) assault with a dangerous weapon; or

(2) robbery; or

(3) armed robbery.

According to the news report last night, the prosecution has alleged that he penetrated her vagina with an object. If the object is the box cutter used ante mortem, that would likely establish that the murder was committed with extreme atrocity or cruelty.

Her body was found in the woods supine with her legs spread and a tree branch inserted into her vagina. Since this staging occurred post mortem, it should not be considered as evidence establishing that the murder was committed with extreme atrocity or cruelty.

Police also found a note with the body that said, “I hate you all.”

If you were prosecuting this case, which alternative way of proving first degree murder would you choose (assuming you had to choose one)?

Or, which alternatives are the easiest and weakest to prove and why?

Here’s a link to a Boston Globe story about the affidavit.


Why is President Obama considering nominating Ray Kelly to run DHS?

August 15, 2013

Thursday, August 15, 2013

Good morning to all of our friends.

Today we take a look at the moribund Fourth Amendment that was revitalized by United States District Court Judge Shira Scheindlin in New York City when she recently struck down the city’s stop and frisk policy.

Ray Kelly is the police chief of New York City.

I wrote about the stop-and-frisk rule last November.

I said,

Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an “inchoate and unparticularized suspicion or ‘hunch’ ”; it must be based on “specific and articulable facts”, “taken together with rational inferences from those facts”. Police may briefly detain a person if they have reasonable suspicion that the person has been, is, or is about to be engaged in criminal activity; such a detention is known as a Terry stop. If police additionally have reasonable suspicion that a person so detained may be armed, they may “frisk” the person for weapons, but not for contraband like drugs. Reasonable suspicion is evaluated using the “reasonable person” or “reasonable officer” standard, in which said person in the same circumstances could reasonably believe a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.

I provided the facts in Terry v. Ohio, the seminal SCOTUS case that authorized a stop and frisk in order to explain the difference between a reasonable suspicion, which is required to justify an investigatory stop and frisk, and probable cause, which is required to justify a custodial arrest.

On October 31, 1963, while on a downtown beat which he had been patrolling for many years, Cleveland Police Department detective Martin McFadden, aged 62,[1] saw two men, John W. Terry and Richard Chilton, standing on a street corner at 1276 Euclid Avenue and acting in a way the officer thought was suspicious. Detective McFadden, who was well-known on the Cleveland police force for his skill in apprehending pickpockets, observed the two proceed alternately back and forth along an identical route, pausing to stare in the same store window. Each completion of the route was followed by a conference between the two on a corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. After one of these trips, they were joined by a third man (Katz) who left swiftly after a brief conversation. Suspecting the two men of “casing a job, a stick-up”, detective McFadden followed them and saw them rejoin the third man a couple of blocks away in front of a store.

The plainclothes officer approached the three, identified himself as a policeman, and asked their names. The men “mumbled something”, whereupon McFadden spun Terry around, patted down his outside clothing, and felt a pistol in his overcoat pocket. He reached inside the overcoat pocket, but was unable to remove the gun. The officer ordered the three into the store. He removed Terry’s overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton’s outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under Terry’s or Chilton’s outer garments until he felt the guns. The three were taken to the police station. Terry and Chilton were subsequently charged with carrying concealed weapons.

Race cannot satisfy the reasonable suspicion test and statistics have proven and Judge Scheindlin found that the NYPD relies on race to justify their stop-and-frisk policy.

PBS News Hour states:

Critics point out that only a very small percentage of stop and frisk actions result in the seizure of weapons or drugs or other contraband. For example, this study showed that for the hundreds of thousands of stops that occurred in 2008, only 6 percent resulted in arrests. Under 2 percent yielded any contraband. And only about one-tenth of 1 percent of stops turned up guns. More recent data showed similar results.

Despite that, the number of stop and frisks have gone up significantly since the program began. The city counters by saying that the number of stop and frisks have dropped sharply in the last year after new training was given to officers about what constitutes reasonable suspicion for stops and searches.

Belated efforts do not save the blatantly unconstitutional policy that targeted blacks.

So why is President Obama considering nominating NYPD Chief Ray Kelly to run the Department of Homeland Security?

He calls her decision “offensive and disturbing.”

I find Ray Kelly offensive and disturbing.

How about you?

Edited to clarify title and text that President Obama is considering nominating Ray Kelly to run DHS.

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Producing articles every day and maintaining this blog requires substantial time and effort.

Consider where else will you see stories about Whitey Bulger, Operation Fast and Furious, the corrupting War on Drugs, the startling implications of Erwin Schrodinger’s cat, Judge Shira Scheindlin, Mayor Bloomfield, and Ray Kelly’s stop and frisk policy?

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Namaste

Fred


The search of Trayvon Martin’s backpack in school was unreasonable and unlawful

May 6, 2013

Monday, May 6, 2013

Good morning:

I credit Lonnie Starr’s series of comments regarding the warrantless search by a school police officer of Trayvon Martin’s backpack for inspiring me to write today’s post.

The officer seized some women’s jewelry and a large flat head screwdriver that the officer described as a burglar tool. Trayvon was not charged with a criminal offense because no one had reported the jewelry stolen and the value of the jewelry was uncertain because no one had examined it to determine if it contained precious gems, or if it were worthless costume jewelry designed to look like real jewelry. The absence of a stolen property report suggests that it’s costume jewelry because, if it had any value, the owner likely would have filled out a stolen property report and filed an insurance claim.

IIRC, the suspension that resulted in his trip to Sanford involved a later incident.

Nevertheless, in response to demands from many of the defendant’s supporters at the Conservative Treehouse, defense counsel have commenced a snipe hunt into this closed matter in hopes of discovering that Trayvon was a member of a burglary ring in Miami. According to CTH logic, this would mean that Trayvon really was “up to no good” when the defendant encountered him walking home in the rain, presumably because once a burglar, always a burglar who must have continued burglarizing homes in Sanford.

Even if this were true, of course, the defendant would not have known it, and since the narrative description that he provided to the NEN dispatcher did not establish a reasonable suspicion to believe Trayvon was “up to no good,” he had no justifiable reason to follow and confront him. In addition, unless juvenile burglars in Miami are aggressive and violent MMA style ninja fighters who like to assault and kill people with their bare hands just for grins, the evidence would be inadmissible.

Therefore, this snipe hunt is going nowhere fast. It’s an absolute waste of time and money when the defense should be assembling a team of experts to review all of the reports, raw data and bench notes generated by the State’s experts.

Be that as it may, Lonnie has raised an issue of general concern to teachers and parents of school age children. Under what circumstances can a teacher search a student’s backpack for evidence of a crime without a search warrant?

The SCOTUS answered that question in 6-3 decision in New Jersey v. TLO, 469 U.S. 325, 328 (1985). Writing for the majority, Justice White described the facts as follows:

On March 7, 1980, a teacher at Piscataway High School in Middlesex County, N.J. discovered two girls smoking in a lavatory. One of the two girls was the respondent T.L.O, who at that time was a 14-year-old high school freshman. Because smoking in the lavatory was a violation of a school rule, the teacher took the two girls to the Principal’s office, where they met with Assistant Vice Principal Theodore Choplick. In response to questioning by Mr. Choplick, T.L.O’s companion admitted that she had violated the rule. T.L.O, however, denied that she had been smoking in the lavatory and claimed that she did not smoke at all.

Mr. Choplick asked T.L.O to come into his private office and demanded to see her purse. Opening the purse, he found a pack of cigarettes, which he removed from the purse and held before T.L.O as he accused her of having lied to him. As he reached into the purse for the cigarettes, Mr. Choplick also noticed a package of cigarette rolling papers. In his experience, possession of rolling papers by high school students was closely associated with the use of marihuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, Mr. Choplick proceeded to search the purse thoroughly. The search revealed a small amount of marihuana, a pipe, a number of empty plastic bags, a substantial quantity of money in one-dollar bills, an index card that appeared to be a list of students who owed T.L.O money, and two letters that implicated T.L.O in marihuana dealing.

Mr. Choplick notified T.L.O’s mother and the police, and turned the evidence of drug dealing over to the police.

The New Jersey Supreme Court held that this warrantless search was unlawful, but the SCOTUS reversed. Justice White said,

There remains the question of the legality of the search in this case. We recognize that the “reasonable grounds” standard applied by the New Jersey Supreme Court in its consideration of this question is not substantially different from the standard that we have adopted today. Nonetheless, we believe that the New Jersey court’s application of that standard to strike down the search of T.L.O.’s purse reflects a somewhat crabbed notion of reasonableness. Our review of the facts surrounding the search leads us to conclude that the search was in no sense unreasonable for Fourth Amendment purposes.

The incident that gave rise to this case actually involved two separate searches, with the first — the search for cigarettes — providing the suspicion that gave rise to the second — the search for marihuana. Although it is the fruits of the second search that are at issue here, the validity of the search for marihuana must depend on the reasonableness of the initial search for cigarettes, as there would have been no reason to suspect that T.L.O. possessed marihuana had the first search not taken place. Accordingly, it is to the search for cigarettes that we first turn our attention.

The New Jersey Supreme Court pointed to two grounds for its holding that the search for cigarettes was unreasonable. First, the court observed that possession of cigarettes was not in itself illegal or a violation of school rules. Because the contents of T.L.O.’s purse would therefore have “no direct bearing on the infraction” of which she was accused (smoking in a lavatory where smoking was prohibited), there was no reason to search her purse. [Footnote 11] Second, even assuming that a search of T.L.O.’s purse might under some circumstances be reasonable in light of the accusation made against T.L.O., the New Jersey court concluded that Mr. Choplick in this particular case had no reasonable grounds to suspect that T.L.O. had cigarettes in her purse. At best, according
to the court, Mr. Choplick had “a good hunch.” 94 N.J. at 347, 463 A.2d at 942. Both these conclusions are implausible. T.L.O. had been accused of smoking, and had denied the accusation in the strongest possible terms when she stated that she did not smoke at all. Surely it cannot be said that under these circumstances, T.L.O.’s possession of cigarettes would be irrelevant to the charges against her or to her response to those charges. T.L.O.’s possession of cigarettes, once it was discovered, would both corroborate the report that she had been smoking and undermine the credibility of her defense to the charge of smoking. To be sure, the discovery of the cigarettes would not prove that T.L.O. had been smoking in the lavatory; nor would it, strictly speaking, necessarily be inconsistent with her claim that she did not smoke at all. But it is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.Rule Evid. 401. The relevance of T.L.O.’s possession of cigarettes to the question whether she had been smoking and to the credibility of her denial that she smoked supplied the necessary “nexus” between the item searched for and the infraction under investigation. See Warden v. Hayden, 387 U. S. 294, 387 U. S. 306-307 (1967). Thus, if Mr. Choplick in fact had a reasonable suspicion that T.L.O. had cigarettes in her purse, the search was justified despite the fact that the cigarettes, if found, would constitute “mere evidence” of a violation. Ibid.

Of course, the New Jersey Supreme Court also held that Mr. Choplick had no reasonable suspicion that the purse would contain cigarettes. This conclusion is puzzling. A teacher had reported that T.L.O. was smoking in the lavatory. Certainly this report gave Mr. Choplick reason to suspect that T.L.O. was carrying cigarettes with her; and if she did have cigarettes, her purse was the obvious place in which to find them. Mr. Choplick’s suspicion that there were cigarettes in the purse was not an “inchoate and unparticularized suspicion or hunch,'” Terry v. Ohio, 392 U.S. at 392 U. S. 27; rather, it was the sort of “common-sense conclusio[n] about human behavior” upon which “practical people” — including government officials — are entitled to rely. United States v. Cortez, 449 U. S. 411, 449 U. S. 418 (1981). Of course, even if the teacher’s report were true, T.L.O. might not have had a pack of cigarettes with her; she might have borrowed a cigarette from someone else or have been sharing a cigarette with another student. But the requirement of reasonable suspicion is not a requirement of absolute certainty: “sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment. . . .” Hill v. California, 401 U. S. 797, 401 U. S. 804 (1971). Because the hypothesis that T.L.O. was carrying cigarettes in her purse was itself not unreasonable, it is irrelevant that other hypotheses were also consistent with the teacher’s accusation. Accordingly, it cannot be said that Mr. Choplick acted unreasonably when he examined T.L.O.’s purse to see if it contained cigarettes.

Our conclusion that Mr. Choplick’s decision to open T.L.O.’s purse was reasonable brings us to the question of the further search for marihuana once the pack of cigarettes was located. The suspicion upon which the search for marihuana was founded was provided when Mr. Choplick observed a package of rolling papers in the purse as he removed the pack of cigarettes. Although T.L.O. does not dispute the reasonableness of Mr. Choplick’s belief that the rolling papers indicated the presence of marihuana, she does contend that the scope of the search Mr. Choplick conducted exceeded permissible bounds when he seized and read certain letters that implicated T.L.O. in drug dealing. This argument, too, is unpersuasive. The discovery of the rolling papers concededly gave rise to a reasonable suspicion that T.L.O. was carrying marihuana as well as cigarettes in her purse. This suspicion justified further exploration of T.L.O.’s purse, which turned up more evidence of drug-related activities: a pipe, a number of plastic bags of the type commonly used to store marihuana, a small quantity of marihuana, and a fairly substantial amount of money. Under these circumstances, it was not unreasonable to extend the search to a separate zippered compartment of the purse; and when a search of that compartment revealed an index card containing a list of “people who owe me money” as well as two letters, the inference that T.L.O. was involved in marihuana trafficking was substantial enough to justify Mr. Choplick in examining the letters to determine whether they contained any further evidence. In short, we cannot conclude that the search for marihuana was unreasonable in any respect.

Because the search resulting in the discovery of the evidence of marihuana dealing by T.L.O. was reasonable, the New Jersey Supreme Court’s decision to exclude that evidence from T.L.O.’s juvenile delinquency proceedings on Fourth Amendment grounds was erroneous. Accordingly, the judgment of the Supreme Court of New Jersey is

Reversed.

New Jersey v. TLO, 469 U.S., at 343-348.

Using the reasonableness test the SCOTUS has approved of the use of random drug testing of student athletes in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), and eventually extended the rule to apply to all students engaged in extracurricular activities in Board of Education v. Earls, 536 U.S. 822 (2002).

The SCOTUS drew the line, however, in Safford Unified School District v. Redding, 557 U.S. 364 (2009), where school officials strip searched a girl in middle school for pills where the school lacked reasons to suspect either that the drugs (Ibuprofen) presented a danger or that they were concealed in her underwear.

Lonnie argues that the search of Trayvon’s backpack for the grafitti marker that led to the discovery of the jewelry and screwdriver a day after the police official claimed to have seen him mark-up a door in the school with WTF, violated his right to privacy and I agree that it did. Although reasonable minds might differ, I believe the search was unreasonable because the information was stale.

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Thank you,

Fred


Police violated the Fourth Amendment in Watertown house to house searches

April 23, 2013

Tuesday, April 23, 2013

Good morning:

We begin today with a history lesson purchased in blood, sweat and tears:

William Pitt declared in Parliament in 1763,

“The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.”

The house to house searches by police without search warrants in Watertown violated the Fourth Amendment.

The Fourth Amendment states:

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.

With the exception of a few narrow and well-delineated exceptions that do not apply to the house to house general searches in Watertown, the Fourth Amendment prohibits police searches of residences without a search warrant issued by a neutral and detached magistrate upon reviewing a sworn affidavit and finding that it establishes probable cause to believe that the residence to be searched contains evidence of a particular crime. Both the residence to be searched and the evidence to be sought must be particularly described in the affidavit and the search warrant.

Consent to search is one exception; however, consent must be free and voluntary. Mere acquiescence to authority at the point of a gun is not valid consent.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.

Bumper v. North Carolina, 391 U.S. 543, 548-550 (1968).

Exigent circumstances is another exception. For example, police can lawfully enter a residence without a search warrant, if they are in hot pursuit of a fleeing suspect for whom they have probable cause to arrest or to prevent the destruction of evidence. United States v. Santana, 427 U.S. 38 (1976).

In Santana for example,

Michael Gilletti, an undercover officer with the Philadelphia Narcotics Squad arranged a heroin “buy” with one Patricia McCafferty (from whom he had purchased narcotics before). McCafferty told him it would cost $115 “and we will go down to Mom Santana’s for the dope.”

Gilletti notified his superiors of the impending transaction, recorded the serial numbers of $110 (sic) in marked bills, and went to meet McCafferty at a prearranged location. She got in his car and directed him to drive to 2311 North Fifth Street, which, as she had previously informed him, was respondent Santana’s residence.

McCafferty took the money and went inside the house, stopping briefly to speak to respondent Alejandro who was sitting on the front steps. She came out shortly afterwards and got into the car. Gilletti asked for the heroin; she thereupon extracted from her bra several glassine envelopes containing a brownish-white powder and gave them to him.

Gilletti then stopped the car, displayed his badge, and placed McCafferty under arrest. He told her that the police were going back to 2311 North Fifth Street and that he wanted to know where the money was. She said, “Mom has the money.” At this point Sergeant Pruitt and other officers came up to the car. Gilletti showed them the envelope and said “Mom Santana has the money.” Gilletti then took McCafferty to the police station.

Pruitt and the others then drove approximately two blocks back to 2311 North Fifth Street. They saw Santana standing in the doorway of the house with a brown paper bag in her hand. They pulled up to within 15 feet of Santana and got out of their van, shouting “police,” and displaying their identification. As the officers approached, Santana retreated into the vestibule of her house.

The officers followed through the open door, catching her in the vestibule. As she tried to pull away, the bag tilted and “two bundles of glazed paper packets with a white powder” fell to the floor. Respondent Alejandro tried to make off with the dropped envelopes but was forcibly restrained. When Santana was told to empty her pockets she produced $135, $70 of which could be identified as Gilletti’s marked money. The white powder in the bag was later determined to be heroin.

Santana, at 39-41

Justice Rehnquist wrote the majority opinion upholding the warrantless arrest and seizure of heroin and money from Santana thereby reversing the Third Circuit Court Of Appeals decision. He said,

In United States v. Watson, 423 U. S. 411 (1976), we held that the warrantless arrest of an individual in a public place upon probable cause did not violate the Fourth Amendment. Thus the first question we must decide is whether, when the police first sought to arrest Santana, she was in a public place.

While it may be true that under the common law of property the threshold of one’s dwelling is “private,” as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment Santana was in a “public” place. She was not in an area where she had any expectation of privacy. “What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U. S. 347, 351 (1967). She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house. Hester v. United States, 265 U. S. 57, 59 (1924). Thus, when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which we have approved in Watson.

The only remaining question is whether her act of retreating into her house could thwart an otherwise proper arrest. We hold that it could not. In Warden v. Hayden, 387 U. S. 294 (1967), we recognized the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons. This case, involving a true “hot pursuit,” is clearly governed by Warden; the need to act quickly here is even greater than in that case while the intrusion is much less. The District Court was correct in concluding that “hot pursuit” means some sort of a chase, but it need not be an extended hue and cry “in and about [the] public streets.” The fact that the pursuit here ended almost as soon as it began did not render it any the less a “hot pursuit” sufficient to justify the warrantless entry into Santana’s house. Once Santana saw the police, there was likewise a realistic expectation that any delay would result in destruction of evidence. See Vale v. Louisiana, 399 U. S. 30, 35 (1970). Once she had been arrested the search, incident to that arrest, which produced the drugs and money was clearly justified. United States v. Robinson, 414 U. S. 218 (1973); Chimel v. California, 395 U. S. 752, 762-763 (1969).

We thus conclude that a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place. The judgment of the Court of Appeals is

Reversed.

Santana, at 42-43

The police who conducted the Watertown house to house searches did not apply for search warrants. They did not have probable cause to search any of the houses they searched and they did not find the suspects or any evidence to be used against them. These were general searches which are specifically prohibited by the Fourth Amendment.

Dzhokhar Tsarnaev was ultimately found hiding in a boat outside the area that the police searched. He was discovered by the owner of the boat who promptly notified police. The boat was situated on a trailer parked in the owner’s driveway.

Either we are a nation of laws or we are not.

We cannot claim to be a nation of laws when we break our laws.

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