Constitutional Issues

A Confounding Victory


This week's Daily Record column is entitled "A Confounding Victory."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


A Confounding Victory

A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment —the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

—ARIZONA V. GANT, NO. 07-542

Last week, on April 21, the U.S. Supreme Court decided Arizona v. Gant, a decision being touted as a constitutional victory by privacy rights advocates.

The court held that arresting officers may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search, or if the officers have a reasonable belief that the vehicle contains evidence of the crime for which the person is being arrested.

The decision is both fascinating and a profound example of why Fourth Amendment jurisprudence is worth little more than the paper on which it’s written.

What is most fascinating about the decision is the unlikely judicial alliances found in the 5-4 decision. The majority opinion was authored by Justice Stevens, who was joined by the rather motley crew of Justices Scalia, Thomas, Souter and Ginsberg. Chief Justice Roberts and Justices Kennedy, Alito and Breyer dissented.

That Justice Scalia joined the majority in limiting the scope of a search incident to arrest is, in and of itself, unusual. For so-called “liberal” Fourth Amendment champions such as myself, however, Justice Scalia’s concurring opinion is all the
more surreal.

First, Justice Scalia indicated that he would go further than the majority and hold that a search of a vehicle incident to arrest is reasonable only when the police have probable cause to believe the vehicle contains evidence of a crime. Justice Scalia
explained that officer safety procedures dictate that the arrestee should be removed from the car prior to the arrest, therefore the arrestee should virtually never be within reaching distance of the passenger compartment, rendering that exception unnecessary.

Even more confounding is that, when discounting that exception, Justice Scalia acknowledged that police actions do not occur in a vacuum. He explained that the exception allowing officers to search for weapons within reach of the passenger compartment “leaves much room for manipulation, inviting officers to leave the scene unsecured (at least where dangerous suspects are not involved) in order to conduct a vehicle search.”

And, with that simple statement, Justice Scalia broke the golden rule of Fourth Amendment jurisprudence, forever changing the course of Constitutional Law classes across this great land. Hypothetical factual scenarios will necessarily have to be rooted in reality from now on.

No longer will robot-like police officers, devoid of emotion or ulterior motives star in hypothetical arrests. Rather, the factual scenarios will take into account that law enforcement officers are just as human as the rest of us and enter the field carrying
their own set of psychological baggage: ripe with prejudices and under pressure, both professional and personal.

Hypothetical examples will be grounded in reality, with the full knowledge that police officers not only are tempted to, but actually do, alter the sequence of events occurring before an arrest to conform to current Fourth Amendment jurisprudence. Evidence obtained illegally ultimately is rendered admissible after creative narration in police reports.

That is the reality, rarely acknowledged, when carefully scripted, fictional scenarios reach the hallowed halls of the U.S. Supreme Court.

That Justice Scalia, of all people, acknowledged that fact, makes this particular victory all the more confounding.

Carelessness Trumps the Exclusionary Rule


This week's Daily Record column is entitled "Carelessness Trumps the Exclusionary Rule."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Carelessness Trumps the Exclusionary Rule

In February 2008, I wrote an column about the U.S. Supreme Court’s decision to grant certiorari in Herring v. U.S.

I predicted the court would conclude that the exclusionary rule did not apply to the facts of the case. At issue in Herring was whether the exclusionary rule should apply to evidence discovered during an unlawful arrest, when a suspect’s arrest is based on erroneous information from another law enforcement officer. Herring was arrested based on an arrest warrant that was recalled, but not purged, from the
computer database, as it should have been.

Earlier this month, the court issued its decision in Herring v. U.S., No. 07-513, and confirmed my suspicion that it would, once again, chip away at the exclusionary rule:

In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g., Leon, 468 U. S., at 909–910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’ Id., at 907–908, n. 6 (internal quotation marks omitted). In such a case, the criminal should not ‘go free because the constable has blundered.’”People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion by Cardozo, J.).

The holding is problematic for any number of reasons, but two of the court’s underlying assumptions are particularly disturbing: One being that any deterrent effect of the exclusionary rule in the case would be “marginal”; the second, that all arrestees are necessarily criminals.

Justice Ginsberg wrote the dissent in the 5-4 decision, noting that the most troublesome outcome likely will be an increase in the wrongful arrests of innocent citizens:

[T]he ‘most serious impact’ of the Court’s holding will be on innocent persons ‘wrongfully arrested based on erroneous information [carelessly maintained] in a computer data base.'

She also addressed the concern I previously raised —that a decision holding the exclusionary rule inapplicable in such a situation would remove any incentive to promptly remove recalled arrest warrants from government databases:

The Court assures that ‘exclusion would certainly be justified’ if ‘the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests.’ … This concession threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means. … In keeping with the rule’s ‘core concerns,’ … suppression should have attended the unconstitutional search in this case.

As Justice Ginsberg notes, widespread use of computer databases is now the norm in America and massive amounts of data are collected, stored and shared among various governmental agencies.

Undoubtedly, such sharing of information has the potential to increase law enforcement’s ability to protect U.S. citizens from harm. The Herring decision, however, essentially guarantees just the opposite will occur. As the economy falters
and budgets tighten, governmental entities most certainly will fail to allocate sufficient resources toward the periodic regulation and review of law enforcement databases, since there is now little, if any, incentive to do so.

As a result, ordinary, law-abiding citizens —especially those with common names or names resembling those on terror watch lists —will bear the brunt of the decision.
Such an outcome is unfortunate, unacceptable and un-American.

Fear and Liberty Must Co-exist


This week's Daily Record column is entitled "Fear and liberty must co-exist."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

Fear and Liberty Must Co-exist

“[F]ear cannot…allow…the evisceration of the bedrock principle of our Constitution that no one can be arrested without probable cause that a crime has been committed.”
Farag v. U.S., __F.Supp.2d__, 2008 WL 4965167 (EDNY 2008)

Just before Thanksgiving, the U.S. District Court for the Eastern District of New York addressed the intriguing issue of whether federal agents could rely solely on airline passengers’ Arab ethnicity when determining whether probable cause exists for their arrest.

In Farag v. U.S., the plaintiffs brought a Bivens claim against governmental entities and employees, asserting that their arrest and subsequent detention and interrogation violated their constitutional rights.

The plaintiffs, both of Egyptian descent, were long-time friends. One was an American citizen and a retired New York City police officer while the other possessed a valid U.S. Visa and was an Egyptian citizen, employed as a sales manager by General Electric.

After vacationing in California, the plaintiffs boarded a plane in San Diego bound for New York City. Counterterrorism agents were on the flight as well and subsequently detained and arrested the plaintiffs based on suspicions of terrorism.

The government asserted probable cause for the plaintiffs’ arrest existed based on non-ethnic factors. The court dismissed that argument, then turned to the government’s claim that the plaintiffs’ Arab ethnicity and use of the Arabic language were relevant factors in the determination of probable cause since the individuals who “participated in the 9/11 terrorist attacks were Middle Eastern males … [and] the United States continues to face a very real threat of domestic terrorism from Islamic terrorists.”

In other words, their position was that, in our post-9/11 world, the mere fact that an airline passenger is believed to be of Arab ethnicity is of great importance when determining probable cause since Arabs have a greater propensity to commit acts of terrorism than non-Arabs.

The court flatly rejected this argument, noting that precedent from both state and federal courts squarely supported the conclusion that ethnicity should not be used as the basis to support governmental intrusion under the Fourth Amend-

There is no doubt the specter of 9/11 looms large over the case. Although it is the first post-9/11 case to address whether race may be used to establish criminal propensity under the Fourth Amendment, the court cannot subscribe to the notion that in the wake of 9/11 doing so now is permissible. As the Second Circuit recently admonished, “the strength of our system of constitutional rights derives from the steadfast protection of those rights in both normal and unusual times.” Iqbal v. Hasty, 490 F.3d 143, 159
(Second Cir. 2007), cert. granted sub nom. Ashcroft v. Iqbal, __U.S.__, , 128 S.Ct. 2931, __L.Ed.2d__ (2008).

It is heartening to read those words in the context of a court decision, rather than an editorial. The United States is a great country founded on the principles of liberty and freedom from baseless governmental intrusions. Such protections, embodied in our Constitution and Bill of Rights, are what separate us from much of the world.

We cannot allow the horrors of 9/11 to reduce us to a land of people paralyzed by fear, full of hatred and distrust. Our legitimate concerns regarding our safety and the safety of our families must never be permitted to override the liberties and freedoms to which all people are entitled, regardless of their race, religion or creed.

Fear and liberty can co-exist. They must co-exist; otherwise the America we know will be no more.

Religious liberty for some, not all


This week's Daily Record column is entitled "Religious liberty for some, not all."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Religious liberty for some, not all

“Hypocrisy is oftenest clothed in the garb of religion.”

I was intrigued when the Becket Fund for Religious Liberty, a public interest law firm that purports to protect all religious expression, recently confirmed it would be filing a religious discrimination lawsuit against the Town of Morristown in U.S. District Court for the Northern District of New York on behalf of Amish residents.

The lawsuit will allege Morristown’s enforcement of building codes against the Amish, including a requirement that all homes have fire alarms, violates the sect’s constitutional rights.

In a letter to the members of the town board dated March 18, the fund states:

We are writing you to express our deep concern over Morristown’s decision … to engage in selective prosecution of 10 Old Order Amish men for alleged violations of the Town’s building code. … As an international, interfaith, public interest law firm, the Becket Fund is dedicated to protecting the free expression of all religious traditions and the freedom of all people of faith to participate fully in public life without discrimination. (Emphasis in original).

The position asserted in the letter is in keeping with the fund’s statement of beliefs found, on its Web  site: “What Do We Believe":

Freedom of religion is a basic human right that no government may lawfully deny. … Religious expression (of all traditions) is a natural part of life in a free society, and religious arguments (on all sides of a question) are a normal and healthy element of public debate. Religious people and institutions are entitled to participate in public life on an equal basis with everyone else, and
should not be excluded for professing their faith.

Upon delving deeper, however, it appears that the fund’s assertion that it serves the interest of all religious traditions is disingenuous, at best. Rather, the fund represents only the interests of politically and socially conservative religious groups.

The apparent disingenuousness is most evident in the fund’s ardent opposition to gay marriage. Over the last few years, the fund has  filed amicus briefs opposing the legalization of gay marriage in Over the last few years, the fund has  filed amicus briefs opposing the legalization of gay marriage in at least three state courts —Maryland, Connecticut and Iowa.

In the brief filed in the pending Iowa lawsuit, Varnum v. Brien, Case No.: CV5965, the fund admits in footnote 3 that it does not represent the interests of all religions, but rather those whose beliefs conform to the fund’s conservative agenda:

Notably, the signatories to that brief consist exclusively of persons and groups that ‘support the dignity of loving, committed same-sex couples, and believe that same- sex couples should be permitted to enter civil marriage.’ See, Brief Amici Curiae of Iowa Faith Leaders at 8. These signatories, who have faced no threat to their religious liberty under the traditional legal definition of marriage, would face no greater threat if that definition changed since their theology supports same-sex marriage. But their brief ignores the many interests of religious groups (perhaps the majority) that theologically oppose same-sex marriage. And it is precisely those more traditional religious institutions whose religious liberty is threatened.

It is clear, then, that despite empty assertions to the contrary, the fund does not support the interests of every faith, since all religious institutions do not oppose gay marriage.

In fact, a number of religious organizations openly support same sex relationships as a matter of policy, including the Universal Fellowship of Metropolitan Community Churches, Ecumenical Catholic Church, Church of God Anonymous, the Alliance for Jewish Renewal (ALEPH), Reconstructionist Judaism, Reform Judaism and the Unitarian Universalist Association.

Others, including United Church of Christ and various Quaker groups allow clergy, congregations and local governing bodies to determine the appropriate level of support for gay marriage.

The Becket Fund for Religious Liberty is but a caricature of a true public interest law firm. While purporting to represent religious liberty for all, the fund supports only those religions that conform to its conservative agenda, rendering its litigation efforts selective at best, and hypocritical at worst.

Does Security Require the Loss of Liberty?

Drlogo11 This week's Daily Record column is entitled "Does Security Require the Loss of Liberty?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Does Security Require the Loss of Liberty?

Men fight for liberty and win it with hard knocks. Their children,
brought up easy, let it slip away again, poor fools. And their grand-
children are once more slaves
—D.H. Lawrence, “Classical American Literature,” 1922

I prefer liberty with danger to peace with slavery.

By the year 2010, the New York City Police Department plans to photograph and track every vehicle that
enters Manhattan.

The goal of the program, “Operation Sentinel,” is to fight terrorism by collecting data from every vehicle traveling along seven tunnels and bridges —the Brooklyn-Battery, Holland, Lincoln and Queens-Midtown tunnels, and the George Washington, Henry Hudson and Triborough bridges.

Under the plan, all cars and trucks will be photographed and their license plates will be scanned and saved in a database in Lower Manhattan for at least one month. In addition, sensors will be used to scan each vehicle in an effort to detect radioactivity.

Operation Sentinel will work in tandem with a $70 million federal program, “Securing the Cities,” and the Lower Manhattan Security Initiative, a $90 million project that includes implementation of a video
surveillance system around Lower Manhattan that will track thousands of people each day. The stated goal is to have more than 3,000 cameras in place by the end of the year.

The video surveillance system is being referred to as a “ring of steel” and is modeled after the system used in London’s financial district.

That fact is particularly interesting, given that the video surveillance system in place at the time of the terrorist attacks in London did nothing to prevent the bombings. Rather, the surveillance tapes simply assisted authorities in identifying and rounding up suspects after the attacks occurred.

It would seem, then, based on the lessons learned from the London attacks, that any sense of safety provided by constant governmental surveillance of New Yorkers’ movements would be illusory, at best.

The only aspect of the plan that is arguably preventative is the intent to scan vehicles for the presence of radiation. Brief investigations of positive readings likely would be rare and would serve the stated purpose of preventing an attack, rather than assisting in seeking vindication after the fact.

The need for vindication following a terrorist attack is natural and understandable, but where the vast majority of the $160 million likely will serve to achieve vindication, rather than prevention, it seems a bit excessive.

Last week, New York City Mayor Michael Bloomberg defended Operation Sentinel and offered the following rationale for its implementation: “New York City is something special. It’s not just a very big city in this world. It is, in many senses, the iconic city. It represents Western Democracy.”

Bloomberg is correct. New York City, with the Statue of Liberty in its harbor, is a symbol of the very freedom and liberty upon which our great nation was founded.

If we must erode our civil liberties in the name of terrorism, shouldn’t the primary goal in doing so be prevention, not vindication after the fact? Is the loss of our freedoms truly outweighed by the minimal preventative benefits of surveillance cameras and tracking systems? Is the slow demise of our civil liberties in the name of the battle against the nebulous enemy, “terrorism,” truly worth it?

Is justice obtained if not consistently applied?

Drlogo11 This week's Daily Record column is entitled "Is justice obtained if not consistently applied?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Is justice obtained if not consistently applied?

The death penalty is one of the few issues with which I have difficulty reconciling my rather liberal criminal defense tendencies.

While the concept of the state executing another human being is repugnant to me, I find that on rare occasions the sordid facts of a highly disturbing case cause a little voice inside
my head to whisper convincingly, “if ever a case merited such a severe penalty, it’s this one.”

The recently decided U.S. Supreme Court opinion, Kennedy v. Louisiana, No. 07-343, is just such a case.

As a mother of two children, I am particularly repulsed by allegations of a rape committed against a defenseless and helpless child. The underlying facts of this case are heart wrenching. The victim was just eight years old when she was brutally raped by her stepfather, resulting in injuries so severe that she required emergency reparative surgery.

Of all the non-fatal cases that might warrant the death penalty, this reprehensible crime most certainly fits the bill. This poor child’s life will never be the same.

Not surprisingly, my feelings were mixed when I learned the court held that imposing the death penalty in child rape cases violated the Constitution. Specifically, the majority of the court concluded that the Eighth Amendment prevented Louisiana from imposing the death penalty for the rape of a child in cases where the crime did not result, nor was intended to result, in the death of the victim.

However, I began to experience an overwhelming sense of relief as I read the majority opinion. The decision was well grounded, both in policy and legal precedent. Despite the horrendous facts of the
case, the court made the correct determination and spared us, as a society, of the burden of attempting to navigate an untraversable slippery slope.

The crux of the issue was not of retribution, but rather, one of practical application. The court focused on the severity and finality of the death penalty and the likelihood that its application would prove to be anything but consistent in child rape cases:

“We find it difficult to identify standards that would guide the decision maker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way… In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be ‘freakis[h].’ … We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim. … Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”

The potential for the arbitrary application of the death penalty in child rape cases is extraordinary. The lack of uniform implementation of such an irrevocable and final sentence would be anything but just. And justice simply cannot be assured in the absence of consistency.

Offensive Criticism Trumps First Amendment Rights

Drlogo11 This week's Daily Record column is entitled "Offensive Criticism Trumps First Amendment Rights"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Offensive Criticism Trumps First Amendment Rights

I was disappointed to learn of the recent decision by the U.S. Court of Appeals for the Second Circuit in Doninger v. Niehoff, No. 07-3885-cv, a case I last discussed in March.

At the time, I disagreed with the district court’s determination that the penalty imposed by the school district did not implicate the First Amendment rights of the plaintiff, a high school student.

Unfortunately, the Second Circuit upheld the lower court’s decision, purporting to limit the holding to the
specific facts of the case, but opening the door to the conclusion that any off-campus criticism of school administrators having the potential to cause a disruption on campus may result in school discipline.

In this case, the plaintiff, a 17-year-old high school senior, alleged the officials at her high school violated her First Amendment rights by preventing her from serving on the student council as a result of statements she wrote regarding the school’s administration from her home computer, on a blog not affiliated with the school.

Specifically, she expressed her disappointment with the likely cancellation of the annual “Jamfest,” a musical event she helped to organize:

jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basi-cally we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. is
the letter we sent out to parents…

And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.

The school administrators learned of the comment two weeks later, and subsequently barred her from serving on the student council as a direct result of the blog post.

Despite noting at the outset that the Supreme Court’s holding in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) — that offensive forms of expression on school grounds may be prohibited under the First Amendment — was inapplicable since the comments at issue were not made on school grounds, the Second Circuit spent an inordinate amount of time focusing on the specific “vulgar, lewd, and sexually
explicit language” used by Doninger in her blog post.

In fact, the specific nature of her comments was discussed on 11 pages of the 21-page decision.

The word “offensive” was used on nine occasions and appeared on five pages in the opinion; the word “vulgar” was used seven times and appeared on five pages; the word “civility” was used 4 times and appeared on four pages; the word “values” was used five times and appeared on four pages; and the specific “offensive” phrases used by Doninger, “douchebag” and “pissed off”, were reiterated on nine separate occasions, appearing on six pages of the opinion.

That’s an awful lot of time spent discussing that which was deemed legally irrelevant, or at the very least, peripheral to the underlying legal analysis.

I can’t help but wonder whether the disrespectful nature of the “vulgar, lewd, and sexually explicit” comments made by this young woman was the driving force behind the court’s decision in this matter. While the ever-present optimist in me hopes that I’m wrong, my pessimistic side insists that I’m right.

Gov. Patterson Green Lights Gay Marriage in New York

Checkmark In what amounts to a major victory for gay marriage advocates, Governor Paterson issued a directive which required that state agencies recognize gay marriages performed in another jurisdiction. 

While I've always supported marriage, I've had issues with allowing it via judicial directive as our laws are currently written.  Passing legislation that allows gay marriage is, in my opinion, the best way to avoid the thorny issues of constitutional interpretation and allow every New Yorker to receive the benefits derived from the vows of a life time commitment to another human being. 

This directive is a step in that direction, but legislation should be passed in order to mute the objections of those who oppose gay marriage.

Some excerpts from an AP article

Paterson issued a memo earlier this month saying that gay New Yorkers who marry where it is legal will have the right to share family health care plans, receive tax breaks by filing jointly, enjoy stronger adoption rights and inherit property. He cited a February ruling in a New York Appellate Division court in which the judges determined that there is no legal impediment in New York to the recognition of a same-sex marriage...

At a Manhattan news conference on Thursday, Paterson, a Roman Catholic, defended the directive, saying failure to issue it would have left the state open to lawsuits claiming the state deprived gay couples of civil rights enjoyed in other states.

"We have a time-held and time-tested tradition honoring those marital rights," Paterson said. "I am taking the same approach that this state always has with respect to out-of-state or marriages conducted in foreign governments being recognized here in the state of New York. I am following the law as it has always existed."

Voices From the Grave

Drlogo11_2 This week's Daily Record column is entitled "Voices from the grave."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.


Voices from the grave.

Last week, the U.S. Supreme Court heard oral arguments in Giles v.California,No. 07-6053.

At issue was whether the defendant’s Sixth Amendment right to confront his accusers was violated where the trial court admitted the dead victim’s prior statements into evidence, where the statements implicated the defendant in her murder.

Last year, the New York State Court of Appeals considered a similar issue in People v. Nieves-Andino, 2007 NY Slip Op 05584, but never reached the constitutional mer- its of the issue, concluding instead that the victim’s state- ments were not testimonial.

In Nieves, Jose Millares, the victim who later died, was discovered lying in the road by a police officer respond- ing to a 911 call regarding shots fired.

The responding officer summoned an ambulance and then asked Millares for his name and other pedigree information. He also asked him what had happened. Millares responded that he had argued with a man named Bori who had shot him three times.

The defendant argued that admitting the victim’s statement into evidence at trial would violate his Sixth Amendment right to confront the witnesses against him pursuant to the Supreme Court’s ruling in Crawford v. Washington. The prosecution argued that the statement fell under the excited utterance exception to the hearsay rule and that its admission would not violate the Sixth Amendment.

The court concluded the victim’s statements did not violate the defendant’s right to confront witnesses against him since the officer’s primary purpose in questioning Millares was to address an ongoing emergency, and thus the statements were not testimonial in the first instance: “Our decision is guided by Crawford v. Washington(541 US 36 [2004]) and Davis v. Washington (126 S Ct 2266 [2006]). In those cases, the Supreme Court held the Federal Confrontation Clause prohibits the ‘admission of testimonial
statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination’ (Davis, 126 S Ct at 2273). Only statements that are testimonial make the absent declarant a ‘witness’ within the meaning of the Confrontation Clause (see id.) … When ... a police officer justifiably believes that the assailant no longer poses a threat to the victim, the purpose of his or her interrogation of the victim may ‘evolve’ from dealing with an ongoing emergency to establishing past events with a view to later criminal prosecution (id.). On this record, however, the initial purpose of Officer Doyle’s inquiry did not change.”

In contrast, under the facts of Giles v. California, the statement appears to be testimonial, therefore the Supreme Court must address the constitutional issue and consider whether the defendant’s Sixth Amendment rights were violated by the trial court’s decision to admit the dead victim’s statements into evidence.

The highest appellate court below, the California Supreme Court, concluded the defendant waived the right to confront his accuser by operation of the common law “forfeiture by wrongdoing” doctrine, since his actions were the very reason that the dead victim was unavailable to testify.

Based on recent decisions from the Supreme Court, I predict that it will uphold the California Supreme Court’s ruling.

This conclusion, while an uncomfortable one for me as a criminal defense attorney, is the only outcome that would make sense from a public policy perspective. To hold otherwise would be to encourage assailants to cause every physical assault to end in death in order to take advantage of the protective umbrella of the Sixth Amendment.

Quite frankly, I’m not sure that the alternative — allowing murderers to benefit from the death of their victim — is one that should be available in a civilized society such as our own.

Futile Degradation

Drlogo11This week's Daily Record column is entitled "Futile Degradation."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.


Futile Degradation

In People v. Hall, 2008 N.Y. Slip 02676, the New York State Court of Appeals considered the issue of whether a “visual body cavity inspection” of an arrestee may be conducted in the absence of a warrant.

The court distinguished between three types of progressively invasive bodily searches prior to reaching its conclusion: “A ‘strip search’ requires the arrestee to disrobe so that a police officer can visually inspect the person’s body. The second type of examination — a ‘visual body cavity inspection’ — occurs when a police officer looks at the arrestee’s anal or genital cavities, usually by asking the arrestee to bend over; however, the officer does not touch the arrestee’s body cavity. In contrast, a ‘manual body cavity search’ includes some degree of touching or probing of a body cavity that causes a physical intrusion beyond the body’s surface.”

The court then concluded that “visual cavity” inspections were constitutionally permissible as long as the police had reasonable suspicion to believe that contraband, evidence or a weapon was hidden inside the arrestee’s body, while “body cavity” searches conducted in the absence of exigent circumstances were unconstitutional unless authorized by a warrant.

In his concurring opinion, Judge Carmen Beauchamp Ciparick agreed with the majority’s conclusion regarding the constitutionality of manual body cavity searches, but disputed the majority’s determination regarding visual body cavity searches: “[J]ust like a manual body cavity search, this intrusive, degrading, and humiliating species of search may only be conducted upon a neutral and detached magistrate’s issuance of a warrant based upon probable cause. … The search incident to arrest exception to the warrant requirement does not apply to ‘searches involving intrusions beyond the body’s surface’ (Schmerber, 384 US at 769). Rather, to safeguard the interests in the ‘human dignity and privacy’ that the Search and Seizure Clauses were designed to protect, an intrusion extending beyond the body’s surface may not be undertaken on the ‘mere chance that evidence might be obtained’ (id. at 769-770).”

Judge Ciparick’s convincing arguments notwithstanding, warrantless visual cavity searches of arrestees are now permissible in New York. The majority asserts these invasive searches are required to locate contraband, weapons or drugs, which is certainly the case with those already incarcerated, such as convicted prisoners or pre-trial detainees.

However, outside of the prison environment, visual cavity searches generally are used in an attempt to locate drugs on a recently arrested person suspected of dealing drugs. Thus, as was the case in Hall, these humiliating and degrading searches occur most frequently in the context of the neverending “war on drugs.”

This “war” has resulted in an ever-increasing number of drug prosecutions. More and more Americans are imprisoned, many on drug charges, resulting in the incarceration of about 1 percent of the U.S. population. Our jails are overcrowded and bursting at the seams, yet drug abuse remains relatively steady.

Drug use has been around since the dawn of time. In comparison, the concept of civil rights is a relatively new concept — one that has served as the bedrock of this great nation.

Sadly, in an effort to win this war on drugs, our Fourth Amendment rights have been eroded slowly to the point that they are no longer recognizable. The Hall decision continues this trend by permitting law enforcement officers to conduct warrantless and extremely invasive searches as part of a neverending and futile quest to win a war that cannot be won. Nicole Black is of counsel to Fiandach