Category Archives: Criminal Justice

A Right Without a Remedy

WEB_GPSEdLate in 2016, the Supreme Court of the United States held that a detaining a man without a warrant and without reasonable suspicion or probable cause did not require the exclusion of evidence seized on his person because an outstanding municipal warrant “attenuated” the search of the man from his unlawful detention. Utah v. Strieff, 136 S. Ct. 2056, 2064 (2016) (“We hold that the evidence Officer Fackrell seized as part of his search incident to arrest is admissible [at trial] because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest.”) (emphasis supplied). This principle is known as the “attenuation doctrine.” Hudson v. Michigan, 126 S. Ct. 2159 (2006). The test for whether or not a court should apply the attenuation doctrine to forgive a violation of the Fourth Amendment asks judges to consider (1) the temporal proximity between the initial unlawful detention and the search; (2) the presence or absence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. When considering this last factor, evidently, the mere fact that an officer lacked probable cause or reasonable suspicion is not enough for the misconduct to be “flagrant.” Strieff, 136 S. Ct. at 2064 (citing Kaupp v. Texas, 123 S. Ct. 1843 (2003)).

What you need to know about Strieff is that there are, literally, millions of municipal warrants floating in the ether of the United States criminal justice system. These are warrants for arrest instructing officers across the land to pick up people who didn’t pay their traffic fines, failed to appear for a court setting, did appear at the court setting but didn’t communicate that fact to the judge correctly, etc. Quite often, the people with municipal warrants are not what you’d consider “hardened criminals.” Practically everyone has had a municipal warrant for their arrest at some point in their life, or came vert close to having one issued. As with most aspects of the criminal justice system, the people most likely to have unresolved warrants are poor.

The only way to logically read Strieff is that someone with an outstanding warrant does not have the protections of  Fourth Amendment. Conventionally, if you are detained because of arbitrary circumstance – you’re a different race than the officer pulling you over; the officer doesn’t like you because you didn’t donate to the Sheriff’s office  Christmas charity drive, you drive the same kind of car as the officer’s ex-wife – anything that the officer finds in your car or on your person can’t be used as evidence against you. In the law, this is called the “exclusionary rule.” But under Strieff, if you have an outstanding traffic warrant – never mind that the officer didn’t know that when he detained you, or that it has nothing to do with what you’re being pulled over or investigated for – the evidence gets to be considered by the jury at your trial. No, not your trial for the speeding ticket you had a warrant for. The one for the new possession of marijuana charge you’re going to be booked for when the officer finishes arresting you.

To many, including counsel for Mr. Strieff before the Supreme Court, this reasoning is terrifying. Given that there are millions of unresolved traffic warrants, officers now have no reason not to pull you over arbitrarily; there is a decent chance if you’re living in an impoverished zip code  that they’ll be able to use the warrants to cover up their wrongdoing. Not to worry, says the Supreme Court! The police would never overstep their authority like that, in the mind of Justice Thomas; if they do start engaging in this kind of dragnet policing, they’ll be sued:

Second, Strieff argues that, because of prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think this outcome is unlikely. Such wanton conduct would expose police to civil liability.

Let’s actually consider that premised for a moment. By and large, police officers are indemnified; they will not be personally liable for their misconduct no matter what happens in civil court. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014). Police departments can be sued, pursuant to 42 U.S.C. 1983, but to do so the plaintiff must overcome the doctrine of Qualified Immunity. This principle, which acts as a defense to Section 1983 suits across the county, is largely an animal of judicial interpretation. Messerschmidt v. Millender, 132 S. Ct. 1235, 1244-45 (2012) (“‘The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” (quoting Pearson v. Callahan, 129 S. Ct. 808 (2009)). It protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011).

The validity of this doctrine is often questioned and criticized. I strongly encourage you to familiarize yourself with the literature on the subject. But more importantly for our purposes, Justice Thomas’ remark about civil liability seems to place America at a crossroads. We have watched, for thirty years, the applicability and relevance of the exclusionary rule shrink as law enforcement arrest more and more people. The prevailing trends in the Fourth Amendment have rendered it meaningless for many accused citizens. Seemingly, if this trend continues, something should exist to take up the slack. Civil liability is not an adequate alternative to the exclusionary rule, but it is at least a tangible way to enforce civil rights and hold violators accountable. But if Justice Thomas’ remarks are to have any meaning, the principles underpinning the doctrine of qualified immunity must be rejected, and heavily overhauled. In Justice Thomas’ own opinion, he notes that the lack of probable cause or reasonable suspicion is not enough for a fourth amendment violation to satisfy the “flagrant misconduct” prong of the attenuation doctrine. How, one wonders, is an action not flagrant enough to overcome this flimsy exception to the exclusionary rule going to be adequately flagrant to constitute a violation of “clearly established statutory or constitutional rights” to overcome qualified immunity. Under the present state of the law, it cannot.

The doctrine of qualified immunity, to my way of thinking, is far too old-world-Europe in its formulation. The very notion that, in the United States of America, there is a “sovereign” entitled to unfettered administration free of the worries and harassment associated with being sued is antithetical to democratic liberty. We don’t have a king sitting atop an unassailable pedestal. This is a country with state mottoes like “thus always to Tyrants.” The only reason not to “hold the police accountable” in civil court is to have a robust exclusionary rule to protect us from their overreach. Since opinions like Strieff undermine our confidence in this approach daily, it is incumbent on the courts and the legislature, in equal measure, to at least allow us some alternative method of bringing the beast that is law enforcement to heel.

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FISA in the time of Cholera


I recently came across a Yale Law Journal Note from 2003 entitled Leaving FISA Behind: The need to return to warrantless foreign intelligence surveillance. It is brilliantly researched and worth the read for the footnotes alone. I utterly disagree with its underlying sentiment, although not necessarily the mandate of its title.

FISA is a statutory mechanism, designed by congress, to entrench the footnoted warrant exception for national security espoused in Katz v. United States, 389 U.S. 347 (1967). By virtue of the FISA laws, domestic surveillance conducted for national security reasons involving foreign powers or their agents is reviewed by a 21st century star chamber, a tribunal of three that meets in secret within the DOJ in D.C. and determines whether or not to issue a FISA warrant with only pro forma appellate review. The standard is a watered-down version of probable cause. The court’s actions are functionally isolated from criminal discovery, and are generally unknowable. Because of these peculiarities, it is difficult to even trust the government when it represents that no FISA material was utilized in apprehending or prosecuting a defendant. After all, that is what you’d say if you’re tasked with protecting the reasoning of a secret tribunal and the existence of a secret warrant.

The article’s conclusions are necessarily naive. The article predates Edward Snowden, the Darkest of the Iraq war scandals, the abuses of the CIA in Guantanamo and black sites, changes to the text of the Patriot Act in 2015, and the election of Donald Trump. I feel that the author’s first conclusion – that the authorization of these questions should return to Article III courts – is perfectly valid. Such a shift would end a practice that, I feel, violates the right to an open court, and improve the chances of meaningful judicial review of Fourth Amendment challenges in the courts. The author’s second conclusion, however, I cannot endorse. Given the “red tape” and “procedural hurdles” that Article III warrant applications typically require, the author suggests that such surveillance be conducted without a warrant, subject only to a reasonableness inquiry. While she is correct that the warrant requirement has eroded beyond recognition, it is foolish to believe that the answer should be to lessen the burden on the government moving forward. Yes, the Freedom Act made some useful modifications to the FISA rules, but these modifications were largely half measures. For example, Section 301 of the Freedom Act prevents the use of evidence obtained by means of “deficient” procedures from being received in a trial, but the question of deficiency is still largely not subject to review outside of the FISA court system. Although this system is more transparent now than it was in 2003, it lacks the robustness of true appellate review.

Better to end FISA entirely, as the author suggests, and subject all foreign surveillance to the same strictures as Title III wiretaps.

Leaving FISA Behind: The Need to Return to Warrantless Foreign Intelligence Surveillance

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What is so Terrifying About the Right to Counsel?

An article in the New York Times yesterday gave me considerable pause. The sort of pause that makes you blink, choke on your coffee,  and cough miserably before re-reading the paragraph. Evidently, the United States government has captured another alleged Al-Qaeda conspirator to the 1998 Kenyan Embassy bombings. Captured and warehoused in a naval brig floating along the Mediterranean Sea without an attorney, Abu Anas al-Libi is described by the Times as “an intelligence goldmine.”
Abu Anas is charged by way of federal indictment alleging conspiracy with Osama Bin Laden to attack American interests in Saudi Arabia, Yemen, and Somalia as well as the 1998 Kenya bombings. These facts are important. Abu Anas is not, it would appear, a prisoner of war, but rather an accused person awaiting trial. This custodial status implicates two important and dove-tailing constitutional principles. In one sense, Abu Anas’ position as a suspect in a criminal investigation implicates his Fifth Amendment right to counsel and privilege against self-incrimination. Pursuant to Miranda, Mr. al-Libi should at least be aware of this fact. In the other, Mr. al-Libi is already charged with a criminal offense, which means that critical stages of the proceedings against him should already be underway – but they are not.
This basic calculus assumes, which is particularly dangerous in this day and age, that al-Libi is held criminally and not as an enemy combatant under the authorization for the use of force set out in 2001. If he is detained under the latter category, there is still some ground for concern. Article 22 of the Third Geneva Convention excludes sea imprisonment for any period of time. I find it highly dubious, however, that the government can in good faith detain a man as an enemy combatant when he awaits trial on a federal indictment for crimes committed against the United States before the authorization for the use of force took effect.
Keeping this distinction in mind, I will focus this post principally upon the criminal justice issues this case presents. In particular, I am deeply troubled by the extensive use of the “public safety” exception to the Miranda requirement that is now in vogue amongst federal law enforcement (You may remember the use of this term recently during the Boston Marathon bombing investigation).
The methodology that will be used to extract intelligence data has already been “tested” on another government detainee – Ahmed Abdulkadir Warsame. In that investigation, the F.B.I. interrogation experts subjected the suspect to months of boat-confined interrogation before sending in a “clean” team of F.B.I. investigators, who were not privy to the prior team’s interrogation, to mirandize the defendant and extract a court-admissible confession. This method seeks to stretch the public safety exception well beyond its breaking point and then sweep away the taint of illegality by bringing a new set of eyes onto the investigation. This author’s reading of precedent finds this approach to be wanting.
Before we delve further, let us examine the public safety exception to the Miranda requirement. The seminal case on the issue – New York v. Quarles -involved a known informant alerting the police that a particular suspect raped her. She further notified law enforcement that the suspect carried a gun and that he had just entered a supermarket with his firearm. When the police confronted the suspect, they drew their weapons and asked him were they could find the gun. New York v. Quarles, 467 U.S. 649 (1984). Thus, in a moment of spontaneity, where the “kaleidoscopic” nature of events necessitates action for the protection of the public, the requirements of Miranda do not apply.
The Quarles opinion was not without its dissenters. Justices Marshall, Brennan, and Stevens all expressed the opinion that such an exception might swallow the rule, and in so doing encourage the exact type of police practice Miranda sought to abolish:

It would strain credulity to contend that Officer Kraft’s questioning of respondent Quarles was not coercive. In the middle of the night and in the back of an empty supermarket, Quarles was surrounded by four armed police officers. His hands were handcuffed behind his back. The first words out of the mouth of the arresting officer were: “Where is the gun?” . . . Officer Kraft’s abrupt and pointed question pressured Quarles in precisely the way that the Miranda Court feared the custodial interrogations would coerce self-incriminating testimony. . . .

Id. at 684 – 85 (Marshall, J. dissenting). What further strains credulity is that an exception drawn to confront the imminent threat of a firearm in a supermarket immediately possessed by a suspected rapist could be extrapolated to justify the many-months-long detention of a man without counsel for crimes he allegedly committed in 1998. Unless the government can establish that al-Libi knows the passcode to a ticking time bomb threatening American lives, it seems highly doubtful that anyone but the presidential sycophants in the Justice Department believe that such interrogation practices passes constitutional muster.
In fact, it would appear that even the aforementioned sycophants are worried. Hence the F.B.I. “cleanup crew” mentioned earlier. Although the Supreme Court has infamously permitted the use of interrogation in the non-custodial context when the suspect is free to leave or is not being directly questioned, it has carefully never permitted the use of “wave” interrogation methods where the detained suspect is first questioned sans-Miranda and is then later mirandized to cure the illegality of the initial question time. Oregon v. Mathiason, 429 U.S. 492, 499 fn. 5 (Marshall, J. dissenting) (“I trust today’s decision does not suggest that police officers can circumvent Miranda by deliberately postponing the official “arrest” and the giving of Miranda warnings until the necessary incriminating statements have been obtained.”). Such a practice is inherently suspect. People do not, as a general rule, understand the difference between a custodial interrogation and any other type of police questioning. If a suspect “spills the beans” to the cop without being informed of his Miranda rights, does he truly understand that he has no obligation to tell the second questioning cop anything? Now, lets extrapolate this reasoning to a Navy brig, after many months of questioning. Do I even need to elaborate on the coercive nature of such an environment?
Finally, there is the “critical stages of the proceedings” question I presented earlier. Mr. al-Libi is not a generic, perpetrator’s-identity-unknown suspect leaning against the street corner. He is already facing an indictment. This means that, if he were a U.S. citizen charged with Murder, Possession of a Controlled Substance, or Reckless Driving, he would be entitled to magistration and bond (or at least a determination of bond eligibility because we are in Federal Court where there “are no [favorable] rules [governing bond] and the points don’t matter”). The high Court has ruled time and again that these pre-trial proceedings trigger the Sixth Amendment right to counsel, and not merely the more prophylactic right to counsel secured by Miranda’s interpretation of the Fifth Amendment.
Ultimately, the President cannot avoid the age old “have your cake and eat it too” quandary. If the government truly needs Mr. al-Libi’s mind for military intelligence reasons, they must accept that such a price will cost them a criminal prosecution. The U.S. Attorney’s Office is not unfamiliar with this problem – transactional immunity is commonly available when the government is put to the choice of subpoenaing one grand jury target to bolster the prosecution of another. This scenario does not readily present any meaningful differences. The Government defends its position on the basis that the Guantanamo era needs to come to an end. No one agrees with that generality more than me. Nevertheless, rather than play a game of chess with the finer points of constitutional law and criminal procedure, the Government should be asking broader questions: Do we have the right to detain people indefinitely? Are we willing to sacrifice our own values for the sake of military security? Are we the just arbiters of “terrorist” criminal conduct in the first instance?

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