Tuesday, March 24, 2009

Court of Appeals: The First Big Test for the Lippman Court -- Is a Search a Search? Or the Supreme Court's Nonsense?

Today, the Court of Appeals heard arguments in People v. Weaver about the constitutionality of a police investigation.

The defendant was found guilty of burglary and attempted grand larceny after a trial. The Appellate Division, New York's intermediate appeals court, then affirmed the convictions. The central question before the Court of Appeals has nothing to do with whether this particular defendant is guilty. He is. Case closed.

The question is far more important than that. It's a question that applies to everyone in New York--innocent or guilty. And because the Court's decision will set a precedent that is likely to influence the high courts in other states, the question truly has national implications.

So what happened in the investigation? The police attached a tracking device to the defendant's car. They then used that device to monitor his whereabouts. The catch? The police did this without a warrant. Those are the relevant facts. The only ones relevant to the question before the Court.

Now first, what do those facts mean? Not my opinion or anyone else's. Just the facts. What the facts mean is that neither the police nor anyone else obtained a warrant--i.e., authorization to attach the tracking device. Nobody showed that there was probable cause--i.e., reason to believe that the defendant had committed a crime. Nobody even showed that there was reasonable suspicion. Nobody showed that there was some emergency requiring quick action and no time to get a warrant. Nobody showed any justification at all. And that's what the question is about. So....

Second, the question is whether the government needs any justification to attach a tracking device to your car. Yes, YOUR car! But didn't the government have a reason to attach the device in this case to the defendant's car? Well THAT'S the very point! The prosecution's position is that the government doesn't need any justification to attach a tracking device to someone's car. No justification at all. No warrant. No probable cause. No reasonable suspicion. No emergency. Nothing.

Well how can that be? It can be because the prosecution doesn't want the Court of Appeals to throw out the evidence that the police obtained from using the tracking device. So the prosecution is claiming that the police didn't do anything wrong. That the police didn't conduct an unreasonable search (which both the federal and state constitutions forbid). But how so, if there was no justification for the search? Oh, well, that's because it wasn't a search at all? Nope. You see, putting a tracking device on someone's car and electronically monitoring their whereabouts is not a search at all. Not according to the prosecution.

So even if what the police did was entirely unreasonable--i.e., without any justification--that's no problem. Because no matter how unreasonable, how utterly without justification, it wasn't a search anyway.

"What?," you may say. "How can THAT be?"

Well, because of some United States Supreme Court "law and order" decisions over the past few decades. Indeed, in a whole series of decisions that can only be described as result-oriented (i.e., a majority of the Justices simply did not want to throw out the evidence), that Court insisted that various police searches were not "searches." OK, those decisions can also, quite fairly I think, be called preposterous. Not because the Court should have thrown out the evidence. (I, for one, do think that's debatable.) But because the police activities in those cases were certainly searches. Readily recognizable by sentient human beings as such. Here are a few examples:

The government flies a helicopter over your backyard and hovers above, looking to see what you are doing or whatever else might be found. Sorry, not a search. (I'm not kidding!) So no warrant needed, no probable cause needed, no reasonable suspicion needed, no reason or justification needed at all. The government can simply do it if it wants. Period.
Florida v. Riley (1989).

The government electronically monitors and records a private conversation you are having in your home. It does so by placing a wire on your friend or neighbor or business partner who's in trouble and so is cooperating with the police. Sorry again, not a search. So no warrant needed, no probable cause needed, etc., etc., etc. And get this. The Supreme Court actually supported its decision by holding that it's not reasonable for anyone to think that his or her private conversations are private. Everyone knows that the friends or neighbors or business partners we speak to (foolishly thinking it's in private) can just run and tell others, including the police. So the government's electronically monitoring private conversations is not a search. The government can simply do it if it wants. That's right. That's what the Justices ruled. (Hey, I didn't appoint them--and wouldn't have.)
U.S. v. White (1971).

Government agents (whether police or other agents or officials) ignore the "No Trespassing" signs you've posted around your property. They even leap over the fence you've erected. They stay far enough from your house so they they can't see inside. But otherwise they inspect every inch of your property looking for whatever they might find. You got it. A majority of the Justices declared that's not a search. And you know what that means. No warrant needed, etc., etc., etc. Pretty "repugnant," right? That's just what the Court of Appeals majority called it in People v. Scott (1992). But, again, the majority of the Supreme Court ruled that such a "not-a-search" is perfectly fine even when the police have no reason for it.
Oliver v. U.S. (1984).

You put your garbage out at the end of your driveway, go back in for a last sip of coffee, and when you go back out to leave for work what do you see? There are police officers (or other government agents) opening your garbage bags, rummaging through them, reading all your discarded bills and mail and other papers and sifting through other items and even leftovers. In response to your inquiry you are told: "No warrant, no reason, don't need one." By this point, dear reader, you know that the Supreme Court agrees. It's not a search. So even if totally without justification, it's OK.
California v. Greenwood (1988).

We could go on and on. But just 1 more.

You're taking a walk, or you're stopped at a red light. Here comes the K-9 unit. The police (or other government agents) bring the dogs around, following and sniffing you while you walk down the sidewalk, or sniffing your car the whole time your stopped at the prolonged signal. You got it again. Not a search. And you know what that means. Forget about a warrant or probable cause or reasonable suspicion or any reason at all. Not needed. The Court of Appeals did take a very different view when it addressed the same issue in People v. Dunn (1990). But according to a majority of the Supreme Court, no justification is needed for the canine sniffing because it just isn't a search.
U.S. v. Place (1983).

So now let's return to the Weaver case argued today before the Court of Appeals. As you might expect, the Supreme Court would agree with the prosecution. Putting a tracking device on someone's car and electronically monitoring that person's movements and whereabouts is not a search. That's what a majority of the Justices held in U.S. v. Knotts (1983). So the question in the Weaver case is whether the Court of Appeals will follow the Supreme Court. Or will it take an independent position, and render a different decision under the search and seizure protections of the state constitution.

That's what the Oregon Supreme Court did when it confronted this issue (State v. Campbell [1988]). So too did the Washington Supreme Court (State v. Jackson [2003]). Indeed, the Court of Appeals has taken such independent positions many times in the past. It did so in the Scott and Dunn cases already mentioned. And it has done so throughout its history. That's one of the very reasons the Court of Appeals has often in its history been a viewed as a--if not the--great, influential, leading court in the nation.

The Court of Appeals certainly took some independent positions while Judith Kaye was Chief Judge. In freedom of the press, search and seizure, the right to counsel, education, and other areas. These were among the highlights of her tenure and these are what the Kaye Court will be remembered and admired for in the long run. The same for the Court under her predecessors. Under Sol Wachtler, Lawrence Cooke, Charles Breitel, and Stanley Fuld--just to name her most recent predecessors--the Court was recognized across the country as a leader among state courts in deciding cases independent of the Supreme Court's back and forth on protecting constitutional rights and liberties.

The Lippman Court can take an independent stand in Weaver or it can follow like a lower court. It can rule as the final arbiter of the state constitution and the primary guardian of New York's fundamental law. Or it can decide the case as if the state constitution and the Court's own judgements are mere carbon copies of the Supreme Court's questionable views of the federal Constitution. It can render a decision that is honest and wise, that is protective of both liberty and order, and is worthy of the Court of Appeals' history and tradition. Or it can refuse to see the nonsense in the Supreme Court's repeated insistence that searches are not searches, and that such intrusions on individual privacy require no justification whatsoever in a constitutionally governed free society.

Exactly what should be required before the government is allowed to place an electronic device on someone's car and keep track of where he goes may not be an easy question. Whether to exclude perfectly reliable evidence that proves that someone is guilty of serious crimes may be even more difficult. Whether electronic monitoring would be unreasonable under particular circumstances and whether suppression of the resulting evidence would be a reasonable redress are both judgment calls about which intelligent, knowledgeable people in good faith can disagree.

But one issue is easier. Yes, a search is a search. Rummaging through someone's garbage is a search. Entering and looking around somebody's property, even if beyond the "peeping distance," is a search. Inspecting the insides of one's clothing or automobile with a sniffing dog is a search. Studying someone's backyard while hovering above in some aircraft is a search. Electronically intercepting a private conversation is a search. And scrutinizing someone's movements with an electronic monitoring device surreptitiously attached to his automobile is a search.

The Supreme Court's conspicuously agenda-driven way of dealing with all of those is preposterous at best--more likely disingenuous or deliberately self-deluding. I.e., a search is not a search.

The test for the Court of Appeals in Weaver is whether it will be cowed by the Supreme Court. Whether it will fail--willingly or willfully--to recognize and acknowledge how absurd the Supreme Court's decisions in this area of constitutional law are. And whether the Court of Appeals has the good sense and honesty to say that a search is a search, and has the courage and wisdom to face the real constitutional issues which will then be laid bare. I.e., what would justify the tracking device? and in the absence of that justification, should the evidence be excluded? This is the first big test for the Lippman-led Court.