Law in Plain English: Rodriguez v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Rodriguez v. United States

Argument: Jan 21 2015 (Aud.)

Background: A Nebraska K-9 police officer stopped Dennys Rodriguez's vehicle for veering onto the shoulder of the highway. The officer gathered Rodriguez’s license, registration, and proof of insurance, and returned to his vehicle to complete a records check. He returned to the vehicle and issued a written warning. The officer then asked for permission to walk his dog around Rodriguez’s vehicle. When Rodriguez refused consent, the officer instructed him to exit the vehicle. Rodriguez then exited the vehicle and stood in front of the patrol car while they waited for a second officer to arrive. A few minutes later, a deputy sheriff arrived, and a minute later, Struble walked the dog around the outside of Rodriguez’s car. The dog alerted to the presence of drugs halfway through the second pass, approximately twenty or thirty seconds later. All told, seven or eight minutes had passed from the time the officer had issued the written warning until the dog indicated the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine. Rodriguez was charged with possessing with intent to distribute methamphetamine. The district court denied Rodriguez’s motion to suppress the evidence, holding that the delay caused by the dog sniff did not violate Rodriguez’s Fourth Amendment right to be free from unreasonable seizures. The Eighth Circuit affirmed, finding that the seven- or eight-minute delay was reasonable because the officer waited for a second officer to arrive to ensure his safety, and that the the delay was a de minimis intrusion on Rodriguez's personal liberty.

Issue: The question before the Court is whether an officer may extend an already completed traffic stop for a canine sniff without reasonable suspicion or other lawful justification.

Holding: In a 6-3 decision, the Supreme Court ruled that absent reasonable suspicion, police extension of a traffic stop in order to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.

Conflicts between the federal government and the states: who wins?

My good friend Joshua Marpet asked me on Facebook to compare the following two situations: 

Medical Marijuana is legal to states, but federally illegal. On the other hand, he cited an article where a state Representative in Texas was attempting to pass a state law which would seek to criminalize the public recording of police, or otherwise exempt only a defined set of news media from such criminalization.

These two issues are both related and different. Let's tackle the marijuana issue. Marijuana is a Schedule I drug under the Controlled Substances Act; and its manufacture, importation, possession, use and distribution is illegal by federal law. That some states have legalized marijuana for medical uses (or for recreational uses) does not change this fact. This is a Supremacy Clause issue. That clause reads:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

What this means is that when federal and state laws conflict, the federal law wins.  So the federal government could go into every state that has legalized marijuana in any way, and shut down their operations. People who otherwise would be permitted to use marijuana by their states could still be subject to federal criminal penalties for those uses.  Such actions would be fully consistent with the Supremacy Clause and the Constitution. The only difference here is that the federal government has largely chosen to acquiesce to the states on this issue (probably as a result of growing public acceptance). But this doesn't prevent the federal government from changing its mind regarding the enforcement of federal laws in the future. Another administration less tolerant of state marijuana laws could, consistent with the Supremacy Clause and the Constitution, enforce federal law in states that have otherwise legalized marijuana.

A good example of a proposed law that would likely fail on Supremacy Clause grounds (and for other reasons, such as separation of powers) is a proposed Utah law to cut off water to the new NSA facility in Bluffdale, Utah. Proposed laws like these, and others under the category of nullification (a long-ago discredited doctrine), simply don't pass muster.

The second issue involves whether a state can proscribe (or prohibit) conduct which is presumably legal under federal law. A short aside: the cited article suggests that criminalizing the recording of police "could be considered an act of defiance to mountains of legal precedent set forth by the Supreme Court of the United States." To be sure, the Supreme Court has never ruled on the specific issue of whether citizens have a legal right to film the police. The case that the article cites is Glik v. Cunniffe, which is a First Circuit case. The holding in this case only applies to the First Circuit; but for the purposes of this post, let's assume that indeed, the Supreme Court had affirmed the Glik decision.

In the area of individual rights, the federal government (or more precisely, the federal courts) set the minimum standard as to what is permitted. The states can provide more protection to individual rights, but not less; so long as those rights do not infringe on any federal constitutional rights. Here are two examples. First, in Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), the Supreme Court held that DUI checkpoints were reasonable under the Fourth Amendment. Nonetheless, a number of states have found such checkpoints to violate the state constitutions or have otherwise outlawed them. Here, the states are providing more protection to individual rights of its citizens than the federal government, and as a result, this is permissible. Second, the Supreme Court has held that people generally do not have freedom of speech in private shopping centers; but on the other hand, California's constitution provides greater protection to speech than the First Amendment. So in California, people can exercise free speech even in a privately-owned shopping center. This too is permissible.

The proposed legislation in the cited article appears to do expressly the opposite: it purports to provide less protection to individual rights than is already permitted by federal law (again, assuming that Glik had been affirmed by the Supreme Court). When states attempt to restrict the rights of its people more than the federal government does, this rules afoul of--you guessed it--the Supremacy Clause. Even now--when there is no Supreme Court ruling affirming the right of people to film the police--I suspect a state law like the one proposed above would violate the First Amendment.

I hope this adequately answers the question!

Law in Plain English: United States v. Wurie

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: United States v. Wurie (see also Riley v. California)

Argument: Apr 29 2014 (Aud.)

Background: Following surveillance of a suspected drug deal, Wurie (who had just parked the car) was arrested by police. At the station, two cells phones (as well as keys and money) were taken from him. After he arrived but before he was booked, one Wurie's cell phones was repeatedly receiving calls from a number identified as "my house" on the external caller ID screen on the front of the phone. The officers were able to see the caller ID screen, and the "my house" label, in plain view. After about five more minutes, the officers opened the phone to look at Wurie's call log. Immediately upon opening the phone, the officers saw a photograph of a young black woman holding a baby, which was set as the phone's "wallpaper." The officers then pressed one button on the phone, which allowed them to access the phone's call log. The call log showed the incoming calls from "my house." The officers pressed one more button to determine the phone number associated with the "my house" caller ID reference. One of the officers typed that phone number into an online white pages directory, which revealed that the address associated with the number was on Silver Street in South Boston, not far from where Wurie had parked his car just before he was arrested. Suspecting that Wurie was a drug dealer, that he was lying about his address, and that he might have drugs hidden at his house, police took Wurie's keys and, with other officers, went to the Silver Street address associated with the "my house" number. One of the mailboxes at that address listed the names Wurie and Cristal. Through the first-floor apartment window, the officers saw a black woman who looked like the woman whose picture appeared on Wurie's cell phone wallpaper and a sleeping child who looked like the child in the picture on Wurie's phone. After obtaining the warrant, the officers seized from the apartment crack cocaine, a firearm, ammunition, marijuana, drug paraphernalia, in cash. Wurie was charged with possessing with intent to distribute and distributing cocaine base and with being a felon in possession of a firearm and ammunition. He filed a motion to suppress the evidence obtained as a result of the warrantless search of his cell phone. The district court denied Wurie's motion to suppress; but the First Circuit reversed the denial of Wurie's motion to suppress and vacated his conviction.

Issue: The question before the Court is whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.

Holding: In a 9-0 decision, the Supreme Court ruled that police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Law in Plain English: Riley v. California

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Riley v. California (see also Wurie v. United States)

Argument: Apr 29 2014 (Aud.)

Background: Following a gang shooting, Riley (a known gang member)'s car was stopped by police and searched. The search found two handguns. As a result of the arrest, police seized his cell phone, and discovered (without a warrant) pictures of Riley making gang signs and videos showing Riley's gang affiliation. The trial cout ruled the search of the cell phone was lawful, and the Court of Appeal of the State of California, Fourth Appellate District, Division One, affirmed.

Issue: The question before the Court is whether evidence admitted at petitioner's trial was obtained in a search of petitioner's cell phone that violated petitioner's Fourth Amendment rights.

Holding: In a 9-0 decision, the Supreme Court ruled that police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Law in Plain English: Navarette v. California

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Navarette v. California

Argument: Jan 21 2014 (Aud.)

Background: Lorenzo and Jose Navarette were detained by officers of the California Highway Patrol (CHP) and subsequently arrested for transportation of marijuana and possession of marijuana for sale. The marijuana was discovered in the Navarettes' pickup truck during a traffic stop after the officers received a report from an unidentified citizen that the vehicle had been observed driving recklessly. The Navarettes' motion to suppress the evidence seized from their truck was denied, and they pled guilty to transportation of marijuana. On appeal, the Navarettes alleged that the evidence against them should have been suppressed because the anonymous tip received by police was insufficient to provide reasonable suspicion of criminal activity justifying an investigative stop of the vehicle, where the officers directly confirmed only significant innocent details of the tip but did not directly observe any illegal activity. The Court of Appeal of the State of California, First Appellate District, Division Five, affirmed the conviction. The Supreme Court of California denied review.

Issue: The question before the Court is whether the Fourth Amendment require an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle.

Holding: In a 5-4 decision, the Supreme Court ruled that the traffic stop complied with the Fourth Amendment because, under the totality of the circumstances, the officer had reasonable suspicion that the truck's driver was intoxicated.

Law in Plain English: Walden v. Fiore

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Walden v. Fiore

Argument: Nov 4 2013 (Aud.)

Background: Fiore and Gipson gambled in Puerto Rico and won $97,000. They intended to travel to Las Vegas via Atlanta, but were stopped and questioned at the San Juan Airport. TSA agents eventually let them go, but told them they might be questioned later in the trip. In Atlanta, DEA Agent Walden approached and questioned them. A drug-detection dog alerted, and Walden seized the cash. Fiore and Gipson continued on to Las Vegas. The cash was later returned when the Assistant U.S. Attorney concluded that the government lacked probable cause. Fiore and Gipson sued Walden in Nevada under Bivens, alleging that Walden violated their Fourth Amendment rights when he seized their cash in Georgia. The District Court dismissed the complaint for lack of personal jurisdiction, but the Ninth Circuit reversed.

Issue: The questions before the Court are (1) whether due process permits a court (in this case, in Nevada) to exercise personal jurisdiction over a defendant (Walden) whose sole “contact” with the forum state is his knowledge that the plaintiff has connections to that state; and (2) whether the judicial district where the plaintiff suffered injury is a district “in which a substantial part of the events or omissions giving rise to the claim occurred” for purposes of establishing venue even if the defendant’s alleged acts and omissions all occurred in another district.

Holding: In a unanimous opinion, the Supreme Court ruled that the District Court lacked jurisdiction. For a State to exercise jurisdiction consistent with due process, a relationship among the defendant, the forum, and the litigation must arise out of contacts that the defendant himself creates with the forum. The plaintiff cannot be the only link between the defendant and the forum. As a result, the District Court could not hear Fiore and Gipson's claim.

Law in Plain English: Fernandez v. California

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Fernandez v. California

Argument: Nov 13 2013 (Aud.)

Background: Police responded to an apartment where there was a report of an assault with a deadly weapon by members of a gang. Police heard screaming from an apartment, and knocked on the door. A bruised woman answered the door and told the police she had been in a fight. When police tried to conduct a sweep of the apartment, Fernandez stepped forward and denied entry to the police. He was then arrested. Police went back to the woman and asked for the woman's consent to search, which she gave. The police found weapons that tied Fernandez to the gang. He was tried and convicted of robbery, assault, and the use of a weapon in connection with gang activity. The Court of Appeal of California ( Second District) affirmed, and the Supreme Court of California denied review. Under a previous Supreme Court case, a physically present co-occupant's stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him.

Issue: The question before the Court is whether, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.

Holding: In a 6-3 decision, the Supreme Court ruled that Randolph does not extend to this situation, where the woman's consent was provided well after petitioner had been removed from the apartment. In other words, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search. That Fernandez was absent because he was arrested does not matter because the police had probable cause to arrest him (and he conceded as much).

Edward Snowden's clemency hurdles

I use Grammarly's plagiarism checker because I trust my writing more than yours!

In light of Edward Snowden's recent interview, I thought it might be interesting to take a look at some of the roadblocks that stand in the way of clemency. I should be clear up front that I take no position on whether Edward Snowden should actually be granted clemency. Neither is this post intended to be a policy statement or value judgment about the United States' surveillance operations or capabilities. That being said, these are some of the things that I would consider if I were in a position to make a decision.

First, in a June 12, 2013 interview with the South China Morning Post:

Snowden has admitted he sought a position at Booz Allen Hamilton so he could collect proof about the US National Security Agency's secret surveillance programmes ahead of planned leaks to the media. 

"My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked," he told the Post on June 12. "That is why I accepted that position about three months ago."

(Full disclosure: I work at Booz Allen). Having already collected classified documents in his previous job, he quit and took a new job specifically for the purpose of obtaining additional classified information. This is tough to reconcile with the image of a whistleblower. If the goal of a whistleblower is to "exposes misconduct, alleged dishonest or illegal activity," then (at least by his standards), he could have done that without an additional trove of classified documents.

Second, Snowden's motives seem inconsistent with his actions. If his goal was to shine a light on what he perceived as violations of Americans' civil liberties, then the documents he released were far broader than was necessary to achieve that motive. While information on the phone metadata surveillance program certainly relate to the privacy concerns of American citizens, the details of surveillance operations against valid foreign intelligence targets has no rational relationship to American citizens. On the other hand, if his goal was to address the problem of indiscriminate mass surveillance, then the details of those same surveillance operations against valid foreign intelligence targets also miss the mark. While Snowden claims that "[n]ot all spying is bad," it remains to be seen if Snowden (or friendly journalists like Glenn Greenwald) have proffered any evidence of foreign intelligence programs that they support. Snowden seems to suggest that foreign surveillance might violate international law, but I'm not aware of any international obligations that limit the foreign surveillance abilities of the United States (or any other countries' abilities to surveil Americans or other countries).

Third, in an open letter to the people of Brazil, Snowden offered to assist Brazilian senators in investigations of suspected crimes against Brazilian citizens. He said he would be willing to do so where it was "appropriate and lawful," but it's difficult to imagine a circumstance where an American citizen could assist a foreign government in investigating surveillance by the United States against that country (in exchange for asylum), and do so in an appropriate and lawful manner.

Attorney General Eric Holder has rejected clemency as an option. Perhaps the United States government has decided that the hurdles identified above are too high of a climb to overcome.

Shmoocon Firesides 2014 (Having Your Cake and Eating It Too: FOIA, Surveillance, and Privacy)

A correction to my talk: the pen register was installed by the police to record the numbers dialed from the telephone at Smith's home; not to record the numbers received by the telephone at the victim's home.

ShmooCon Firetalks submission

Having Your Cake and Eating It Too: FOIA, Surveillance, and Privacy

In Washington, DC, the federal government is arguing against a prolific Freedom of Information Act (FOIA) requester that his multitudinous requests, taken together, constitute a "mosaic" of information whose release could "significantly and irreparably damage national security" and would have "significant deleterious effects" on the bureau's "ongoing efforts to investigate and combat domestic terrorism." In the District of Columbia, the federal government is defending the legality of the intelligence community's surveillance programs under a 1979 Supreme Court case, Smith v. Maryland, that found constitutional use of a “pen register” device to gather information on numbers called by a criminal suspect. So, yes: the government is simultaneously arguing to that too much otherwise-legitimate FOIA data creates a mosaic that threatens national security--but large scale metadata collection, far beyond anything contemplated by a simple pen register device in 1979--is perfectly legitimate. Is this a problematic dichotomy? And if so, what can we do about it?

Here are my ShmooCon submissions

I made two submissions to ShmooCon this year. The first is a full-fledged talk and the second is a "One Track Mind" 20-minute talk. Here are the abstracts, and wish me luck!

©opyright Gone Wrong: Our Broken System and How We Can Fix It

The Constitution grants the Congress the power to enact intellectual property laws "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Since the founding of our country, protection of intellectual property has undergone several systematic changes that have extended the time rights are protected. Additionally, protections have gotten increasingly aggressive and oppressive. This presentation will briefly discuss the history and development of IP law, and then focus on the more recent and onerous provisions that have become embroiled in controversy. Along the way, we'll talk about the Digital Millennium Copyright Act,  copyright and patent trolls, and other methods of intellectual property abuse. Lastly, we will take a look at some of the ways we can reform our broken system to free consumers from burdensome restraints, while at the same time protecting the intellectual property of the creators.

Having Your Cake and Eating It Too: FOIA, Surveillance, and Privacy

In Washington, DC, the federal government is arguing against a prolific Freedom of Information Act (FOIA) requester that his multitudinous requests, taken together, constitute a "mosaic" of information whose release could "significantly and irreparably damage national security" and would have "significant deleterious effects" on the bureau's "ongoing efforts to investigate and combat domestic terrorism." In the District of Columbia, the federal government is defending the legality of the intelligence community's surveillance programs under a 1979 Supreme Court case, Smith v. Maryland, that found constitutional use of a “pen register” device to gather information on numbers called by a criminal suspect. So, yes: the government is simultaneously arguing to that too much otherwise-legitimate FOIA data creates a mosaic that threatens national security--but large scale metadata collection, far beyond anything contemplated by a simple pen register device in 1979--is perfectly legitimate. Is this a problematic dichotomy? And if so, what can we do about it?

Having your cake and eating it too: FOIA, surveillance, and individual privacy

It seems pretty obvious now (if it hasn't already been for a long time!) that the government wants to have its cake and eat it, too. On one hand, the federal government is arguing against a prolific Freedom of Information Act (FOIA) requester:

...the FBI claims that Shapiro's multitudinous requests, taken together, constitute a "mosaic" of information whose release could "significantly and irreparably damage national security" and would have "significant deleterious effects" on the bureau's "ongoing efforts to investigate and combat domestic terrorism."

In other words:

Disparate items of information, though individually of limited or no utility to their possessor, can take on added significance when combined with other items of information. Combining the items illuminates their interrelationships and breeds analytic synergies, so that the resulting mosaic of information is worth more than the sum of its parts.

On the other hand, in response to claims that the NSA's metadata collection program violates the Fourth Amendment:

...Gilligan argued that the government also believes the surveillance is legal under a 1979 Supreme Court case, Maryland v. Smith [sic], that found constitutional use of a “pen register” device to gather information on numbers called by a criminal suspect. 

“In terms of computer technology, things have changed an awful lot since ’79,” Leon replied. “The technology used in that case pales in comparison — pales in comparison to the technology NSA has at its disposal to query hundreds of millions of records … maybe billions of records in a matter of minutes or hours.” 

“Smith’s value may be very limited if at all in this case,” the judge added.

The mosaic theory of the Fourth Amendment suggests that the aggregate collection of information over an extended period of time may be considered a search. As Justice Ginsberg wrote in United States v. Jones (the GPS monitoring case), "[w]hen considered as a collective whole, the monitoring...revealed an intimate picture of the subject's life that he expects no one to have..."

So, yes: the government is simultaneously arguing to that too much otherwise-legitimate FOIA data creates a mosaic that threatens national security--but large scale metadata collection, far beyond anything contemplated by a simple pen register device in 1979--is perfectly legitimate. Both of these arguments are being made in the same city--Washington, DC--and in fact in the same court--the United States District Court for the District of Columbia. Right hand, meet the left hand.

I've submitted a CFP to Shmoocon to further discuss this issue, so if it gets picked up, I'll be able to flesh it out further.

What do you think?

The government can anally rape you, literally

You have probably already read about this horrific case of David Eckert, who was suspected of holding drugs in his anus. Eckert was subjected to an x-ray, two digital (finger) exams, three enemas, a second x-ray, and finally, a colonoscopy. No drugs were ever found. Here is a copy of Eckert's lawsuit.

You may remember that a few weeks ago, I wrote about the article, "Call Yourself A Hacker, Lose Your 4th Amendment Rights:"

...this case has zero, zilch, squat, nothing, to do with the Fourth Amendment.... This case is about a temporary restraining order between two private parties. The Fourth Amendment's prohibition on unreasonable searches and seizures only applies to “state action." There is simply no state action here. Perhaps the author chose the title as link bait. Nonetheless, the headline is not only misleading, but erroneous, and detracts from the issue at hand.

In this case, all of the invasions of Eckert's body were done by doctors. The doctors, of course, are not government officials. So, where is the state action? In this case, the doctors acted at the request of law enforcement to aid law enforcement. The doctors, then, acted under "color of law," which means that the doctors were using authority given to them by a government official; in this case, the police officer. As a result, the doctors' actions can potentially subject them, and the government, to liability.

This post is only meant to address issue of the doctors acting on behalf of the state. For a fuller legal analysis of this case, see Orin Kerr's post at Volokh Conspiracy and Ken White's post at Popehat. They're both worth reading in full.

OMG, Call Yourself A Hacker, Lose Your 4th Amendment Rights!

Update (10/24/13): The Register has now picked up the story and uncritically repeats the same erroneous Fourth Amendment claims.

Update 2 (10/24/13): And just as quickly, the Register contacted me to indicate that the article has been updated to remove the Fourth Amendment references.

Two quick, but equally horrible points about this article:

First: this case has zero, zilch, squat, nothing, to do with the Fourth Amendment (or the Fifth Amendment, given the property issues). This case is about a temporary restraining order between two private parties. The Fourth Amendment's prohibition on unreasonable searches and seizures only applies to “state action." There is simply no state action here. Perhaps the author chose the title as link bait. Nonetheless, the headline is not only misleading, but erroneous, and detracts from the issue at hand.

Second, the decision to grant the TRO is based on the defendant's self-label of hacker (emphasis added):

In addition, the defendants have identified themselves as hackers, as discussed above. A well-known characteristic of hackers is that they cover their tracks...This makes it likely that defendant Thuen will delete material on the hard drive of his computer that could be relevant to this case...The tipping point for the Court comes from evidence that the defendants – in their own words – are hackers. By labeling themselves this way, they have essentially announced that they have the necessary computer skills and intent to simultaneously release the code publicly and conceal their role in that act. And concealment likely involves the destruction of evidence on the hard drive of Thuen’s computer. For these reasons, the Court finds this is one of the very rare cases that justifies seizure and copying of the hard drive.

This is highly disturbing, and has potentially broader implications beyond this immediate case. If simply calling oneself a hacker can be used as evidence that someone may have criminal intent is alarming, troublesome, discouraging and discomforting (thank you, Thesaurus.com). We cannot take this sitting down; we must stand up and fight.

No, AT&T is not charging customers a Lawful Interception Recovery Fee

For more information, follow me on Twitter.

I guess they don't tap my phone because this isn't on my AT&T statement (I just checked). What is $0.61 for? It's not even lined up correctly. Five line items, six charges? Bad math? Also, why is everyone across the entire Internet posting the same image? If they're doing this to everyone, why isn't everyone posting their own respective phone bills? Looks like bad photoshop to me. If there is evidence out there to prove me wrong, please share and I'll be the first one to admit I was wrong. Until then, I call fake.

Edited to add (8/11/13): Even if this is a legitimate, CALEA-based lawful intercept fee, that doesn't make it "NSA"-related. Two very different things.

Update (8/12/13): Nearly 10,000 people have viewed this post in the last 24 hours!

Update (8/12/13): Snopes has now this as false. They contacted AT&T who confirmed as much.

Florida v. J.L. 3-minute mini-oral argument

This evening in Moot Court, we did practice oral arguments on the basic facts of Florida v. J.L., 529 U.S. 266 (2000). We had about 15 minutes to prepare for a 3-minute mini-oral argument. I'm arguing for J.L. (that his Fourth Amendment rights were violated) as if the Supreme Court hadn't decided the case already. The other students are supposed to interrupt and ask questions. This isn't a particularly good argument for me, but here it is nonetheless.

Justice Scalia on solving crimes vs. suspicionless law-enforcement searches

"Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail." 

--Justice Antonin Scalia, Maryland v. King (dissent)

Best footnote ever?

From Justice Scalia's scathing dissent in Maryland v. King:

...I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one,⁶ will some day be repudiated. 

⁶ Compare, New York v. Belton, 453 U. S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U. S. 332 (2009) (on second thought, no).

Nice.

Law in Plain English: Maryland v. King

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Maryland v. King

King was arrested for assault. Pursuant to the Maryland DNA Collection Act, which allows the state to collect DNA from those arrested for a crime of violence (as well as burglary), law enforcement collected King's DNA. Before he was tried on the assault charge (for which he was ultimately convicted), King's DNA was found to match a sample from an unsolved rape case. For this, he was indicted and convicted of rape and sentenced to life in prison. King filed a motion to suppress in the Circuit Court for Wicomico County, which was denied. King then filed a notice of appeal to the Court of Special Appeals, but the Court of Appeals of Maryland (the highest court in Maryland) issued a writ of certiorari (and as a result, the case skipped the Court of Special Appeals, which is the intermediate appellate court in Maryland) and found the procedure unreasonable. The question before the Court was whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged (but not yet convicted) with serious crimes. In a 5-4 decision, the Supreme Court ruled that when officers make an arrest supported by probable cause for a serious offense and bring the suspect into the station, taking a cheek swab (and analyzing) is, like fingerprinting and photographing, a reasonable police procedure under the Fourth Amendment. As a result, the Maryland Court of Appeals is reversed and the DNA evidence can be used against King.The practical impact of this decision is that police departments will be able to collect and analyze DNA from people who are arrested and charged with serious crimes.

American Bar Association Citizen Amicus Project results

Back in December, before I had even taken a day of Criminal Procedure, I submitted an essay to the American Bar Association's Citizen Amicus Project:

The 2012-2013 Project focuses on the Fourth Amendment issues raised by law enforcement's warrantless use of trained narcotics dogs to detect narcotics from the outside of a home.  

This term the Supreme Court will hear Florida v. Jardines, a case that questions whether law enforcement's use of narcotic detection dogs in front of a home, without a warrant, violates the homeowner's Fourth Amendment right to be free from unreasonable searches.  The Supreme Court will review one question in the case: 

Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

I posted my submission here.

The Supreme Court's opinion is here.

I just found out I received the runner-up award! Pretty good for a part-time 1L don't you think? :-)