Wednesday, April 8, 2009

Notable Miscellany: Iowa/Marriage, New York/Surveillance, and the Supremes/Discrimination (Part 2 - IA & NY [and the Supremes])

In yesterday's post on New York Court Watcher, we looked at the marriage decision just rendered by the Iowa Supreme Court. The state's justices ruled that, as a matter of equal protection guaranteed by that state's constitution, same-sex couples in Iowa are entitled to the same right to be married as opposite-sex couples. (See Notable Miscellany: Iowa Equalizes Marriage, New York Questions GPS Surveillance, and the Supremes Dilute Anti-Discrimination (Part 1 - Iowa), April 7, 2009.)

The significance of that decision is difficult to overstate. Consider the contrast between that decision, by a unanimous court, in the country's heartland, and the decisional law of the nation's Supreme Court. Until less than 6 years ago, the supposed guardian of our rights and liberties under the U.S. Constitution insisted that states were free to criminally prosecute, convict, and punish gays and lesbians for same-sex. When the Supreme Court finally overruled itself in 2003, in Lawrence v. Texas, 3 of the 9 Justices actually clung to the notion--and vehemently so--that the Constitution afforded no protection to gays and lesbians. Not even against state laws that made them criminals.

So, it took the Supreme Court until a few years ago to recognize some Constitutional protection for gays and lesbians to be gays and lesbians. And even then the Court was deeply divided. Now, a few days ago, the high court of Iowa advances the law well beyond where the Supremes would apparently even think of going. It recognizes the equal right of gays and lesbians to marry--and does so without a single dissent. Tells you something about the comparative progressiveness and enlightenment of our national Supreme Court and that court in Iowa!

Along related lines, the New York Court of Appeals [NYCOA], the state's highest court, is in the midst of deciding whether to follow U. S. Supreme Court case law that severely undermines personal privacy and permits entirely unreasonable searches. Or whether to render an independent judgement to enforce fundamental rights under the state constitution--like the Iowa court did in the marriage case, and like the New York court had a national reputation for doing in the past. An independent judgement that makes clear that, even though the Supreme Court says that arbitrary government surveillance does not violate the federal constitution, such intrusions on personal privacy and autonomy will not be tolerated in New York.

The case being decided by NYCOA, People v. Weaver, as well as the related Supreme Court precedents, was discussed in some detail in a previous post. (See Court of Appeals: The First Big Test for the Lippman Court -- Is a Search a Search? Or the Supreme Court's Nonsense?, March 24, 2009.) In brief, Weaver involves the police attaching a tracking device (a "GPS") to the defendant's car and monitoring his movements for 65 days. The catch? The police did not have a warrant. More than that, the government is not even claiming that the police had any good reason--or even good suspicion--to believe that the defendant was engaged in criminality. Instead, the government is claiming that the police do not need a reason at all to put a tracking device on anyone's car and to electronically monitor a person's movements. Let's repeat the government's position just to be clear. NO REASON AT ALL IS NEEDED.

Is that really possible? Yes, because that's exactly what the Supreme Court said. To be precise, the Court said that the federal constitution doesn't require the government to have a reason. The explanation given by the Supreme Court, in its 1983 decision in U.S. v. Knotts, is that the Constitution forbids unreasonable (i.e., unjustified) searches, but such electronic monitoring is really not a search. [I'm aware that I already discussed this in that previous post. But I'm also aware that this may be so hard to believe that it doesn't sink in too readily.]

The Knotts decision is one of a host of rulings by the modern law-and-order oriented Supreme Court that insists that all kinds of governemnt searches are not "searches" at all for the purpose of the Constitution. The reason? Any expectation of privacy that a person might have would be unreasonable. So, electronically monitoring someone's movements on the roadways--or on sidewalks, or any other place open to the public--does not intrude upon any reasonable expectation of privacy. And so, it can't be a "search". You see, it would be unreasonable for someone living in a free society to expect that the government won't be monitoring their movements and electronically following wherever they go. [More on this nonsense about searches not being considered "searches" by the Supreme Court is discussed in the March 24 post cited above.]

But let me be fair. The Supreme Court was very careful to distinguish between, on the one hand, electronically monitoring a person's movements while driving on the roadways and, on the other, electronically monitoring such movements inside private places.

So thank you Supreme Court. It apparently IS a "search" and, thus, the government DOES need some justification to electronically monitor us if we are driving in and out of our garage, or driving around the coffee table in our living room.

At oral arguments in the Weaver case, the Judges of NYCOA seemed fully to recognize the nonsense--and danger to fundamental liberties--of the Supreme Court's approach. [I did not attend oral arguments, but I did watch the videocast which the court had later put on its website. Also, I obtained a DVD of the arguments and played it in my Criminal procedure class after which we discussed it for for the remainder of the 2 hour session.]

A guest will be contributing a post discussing the oral arguments, and particularly focusing on the Judges' questions. But for now, let me offer a few observations.

The questioning was quite active and spirited. Newly-appointed Chief Judge Jonathan Lippman and Judges Robert Smith and Eugene Pigott were especially active. Judges Carmen Ciparick and Victoria Graffeo also asked several questions. Judge Susan Read asked 2 or 3. I didn't hear Judge Theodore Jones ask any.

Here's my brief take. Lippman seemed extremely troubled by the notion of government being permitted to use technology to follow anyone or everyone without being required to have some good investigative reason in each case for doing so. Smith seemed rather incredulous that the government could really be suggesting that people should reasonably expect that someone will sneak underneath their cars, attach a tracking device, and then monitor their movements. He also wondered if the warrantless electronic monitoring would only be limited when the government began monitoring nice people, instaed of just undesireables.

Pigott had difficulty accepting the proposition that the police could attach a tracking device to someone's car, monitor that person's movements (for up to 65 days as in this case), and really not have any reason for doing so--and if the police had a reason, why they wouldn't get a warrant. He also inquired about the silliness of requiring drivers to put a "No Tresspassing" bumper sticker on their cars in order to manifest their expectation of privacy in being free from a tracking device.

Ciparick and Graffeo both seemed to have difficulties with each side. Ciparick's voting record would strongly suggest a sympathy for the arguments on behalf of the defendant; Graffeo's for the arguments on behalf of the prosecution. But Ciparick's questions did not particularly evince sympathies either way. And Graffeo's actually indicated some exploring of how an independent state constitutional decision would be crafted--i.e., a decision differing with the Supreme Court.

Read's few questions suggested she might think that elecctronic monitoring with a tracking device was little more than a more efficient way for police to follow a car--which was presumed to be perfectly fine if done by the police physically. And Read's voting record certainly manifests a pro-prosecution bent.

As for Jones, since he had no questions--or none that I heard--there's not much to be gleaned about him. But his voting record would certainly suggest a leaning towards the rights of the accused. [For more on the Judges' voting records in criminal cases, see e.g. Court of Appeals: What Lippman Inherited (Part 2 - Criminal Law Voting Spectrum), March 19, 2009.]

But of course, it's a very tricky business to try to determine how a judge is going to vote based upon questions at oral arguments. Some judges, sometimes, are pretty obvious. But it's not always obvious when a judge is being obvious! Let me put it this way. Based on the questions, it would not be a surprise if Lippman, Smith and Pigott all voted that the police must have some justification--a warrant supported by probable cause, or maybe just reasonable suspicion like the court requires for canine sniffs--before attaching a device to a car and then electronically monitoring a persons' movements. Based purely on voting records, it wouldn't be a surprise if Ciparick and Jones also voted that way. Graffeo's vote wouldn't be a surprise either way--her voting suggests one way, her questions seem to suggest the other. As for Read, a vote for the prosecution would not be surprising at all.

Having said all that, it would not be a shock if the judges all voted the opposite. Except, perhaps, for the Chief and Smith, both of whom expressed great concern for the government's position.

We shall see.

At the very least, however, the questions at oral argument left no doubt that the Judges were "hot" on this case--i.e., very well prepared and very aware of the issues and their ramifications. I would be very surprised, as well as extremely disappointed, if the Judges on NYCOA did not reject (expressly or not) the Supreme Court's not-a-search-so-anything-goes nonsense. I fully expect NYCOA's analysis of the issues, understanding of their significance, and ultimate resolution of the case to be far superior to what has become customary from the Supreme Court.