Sometimes a journalist manages to put everything you need to know about a subject in the first sentence of his report. From Adam Liptak’s article “Court Debates Strip Search of Student”:

The United States Supreme Court spent an hour on Tuesday debating what middle school students are apt to put in their underwear and what should be done about it.

When the answers are so obvious – (a) anything they want to and (b) nothing should be done about it – it’s pretty sad that our justice system struggles to come to a conclusion. It really shouldn’t matter that this was a 13 year old honors student, and that the suspected contraband was prescription strength advil, and that the “information” came from an unreliable tattle-tale trying to shift blame away from herself, or that the strip search found nothing, although those facts do add to the insanity of the situation.

Liptak’s first sentence synopsis is entirely accurate. And the fact that anything about this topic is “debatable” is ludicrous. This is apparently how low we have sunk: what middle school students put in their underwear, and under what scenarios can the school and its administrators go a-peeping.

Continue Reading Strip Searches for Students, the Short Version

All the listservs are abuzz (Austin, Texas and national criminal defense lawyer association listservs, that is). The Supreme Court has just handed down Arizona v. Gant, which from the non-binding syllabus portion reads:

Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

One important, and unfortunately distinguishing fact from most vehicle searches in this case was that the defendant managed to park his car in his driveway before being arrested by the police. Therefore the typical scenario where the "traffic stop leads to an arrest, the arrest leads to the impound, and the impound justifies the inventory search" analysis did not apply. 

This case simply addresses the search incident to arrest issue, and whether or not the police may automatically search a vehicle if they see an offense committed in it. And for no other reason. From the opinion:

Among other things, Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle.

When asked at the suppression hearing why the search was conducted, Officer Griffith responded: “Because the law says we can do it.”

Criminal defense lawyers nationwide can actually hear that smug tone of voice: because I can / smirk. Indeed the opinion quoted Justice O’Connor’s prior observation that “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception”.

No surprise there. When courts repeatedly allow and excuse all sorts of police behavior, they are likely to feel entitled to repeat it. That’s just human nature. I wonder though, since the majority actually bothered to quote the officer’s sarcastic response whether they too may have heard his insolent tone of voice as well.

Most encouraging perhaps was the court’s rejection of the typical State argument: that the police interest in investigation – on a whim – is more important than the citizen’s privacy interests:

For several reasons, we reject the State’s argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, see New York v. Class, 475 U. S. 106, 112– 113 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles, 525 U. S., at 117. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space.

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.

No matter how this decision gets limited in the future, those last two paragraphs are very heartening. I’ll take a renewed interest in the original understanding of the purpose of the Fourth Amendment any day of the week.

George Washington University Law School professor Orin Kerr, who is probably most renowned for his contributions to the Volokh Conspiracy, is publishing a paper in the upcoming Stanford Law Review titled “Applying the Fourth Amendment to the Internet: A General Approach”. The article’s general conceit appears to be that the Fourth Amendment should apply to the internet in the same way that it applies to the “physical world”:

Thus, the goal is "technology neutrality": Ideally, The Fourth Amendment should play the same role regardless of whether a criminal investigation occurs via an investigation in the physical world or whether it occurs via an investigation over the Internet.

Over at Simple Justice, Scott Greenfield asks whether this is the right approach, and concludes that it is not:

Continue Reading The Professor vs. the Practitioner on the Fourth Amendment

 From Scott Henson: Is Babysitting While White Reasonable Suspicion For Police Questioning? 

Scott’s not a lawyer, but I doubt there will be many other posts written in the next two months that can overcome his slice-of-life post that is the clear frontrunner in my mind.


Another Scott, this time Greenfield, riffs on the fascinating comments section of Henson’s original post. As O’Keefe frequently reminds us, the best blogging turns into conversation, and Henson has hit it out of the park with his thought provoking piece.


Browsing through the RSS reader, and I came upon an apropos section of a recent DrugWarRant post that applies neatly to the libertarian objections voiced by Austin’s citizens in the stories above.

Pete is actually talking about that age old Never Consent To A Search bit of advice that seems mostly to apply in drug cases, but struck a chord with me because of my recent ramblings about the newly proposed Austin Police policy regarding .

In the ‘Austin Reacts’ post I mentioned the overwhelmingly negative public response to Acevedo’s new proposal, but of course there were also the inevitable “If you’ve got nothing to hide, why would you care about this” comments left on the KXAN story as well.

And this subject comes up in a variety of ways but with regularity when discussing criminal defense issues with the public at large. Thanks to Pete, I now have a new and improved way of explaining why that logic is so flawed:

Now the real question is, why would anyone ever consent to a search?

Sure, the canned law enforcement quip is "If you have nothing to hide, you have nothing to worry about." But regular readers know my response to that:

Sometimes people say I shouldn’t mind being searched if I have nothing to hide. I immediately accuse them of having a swastika tattooed on their genitalia — if they have nothing to hide, then surely they shouldn’t mind dropping their pants to prove me wrong.

And, of course, even without that thinking the "nothing to hide" bit doesn’t make a bit of sense in consenting to a search.

Fantastic response. I can’t wait to use it the next time someone tells me I shouldn’t worry so much about the Fourth Amendment, or that the Bill of Rights is all a bunch of baloney meant to coddle criminals and doesn’t do anything for the rest of us…

Doug Weathers asks criminal defense lawyers, “Would you rather have Good Facts or Good Law?”:

Every time I am preparing for a trial I deal with the question of do I have good facts or good law. Rarely do you have both because those cases are usually dismissed or never go to trial. Sometimes you have neither good facts or good law and those cases usually plead. In most of the trial cases you will have either good facts or good law.

In my experience as a criminal defense attorney in Texas, there is precious little good law for the defendant.

On Law & Order and other TV shows judges are routinely throwing out cases for undotted i’s and uncrossed t’s, but it ain’t exactly so in real courtrooms. The overwhelming government interest (according to appellate courts) in convicting anyone and everyone when it comes to the War on Drugs has darn near killed the Fourth Amendment.

And then there’s that DWI exception to the Constitution:

In sum, the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that [stopping drivers without reasonable suspicion or probable cause**] is consistent with the Fourth Amendment.

[**original wording is “it”. Read the case. My substitution for the word “it” is 100% accurate.]

Good law? Only been practicing a little over ten years. I’ve heard rumors that such a thing existed in the 70’s. And I’ve read plenty of caselaw overturning those well reasoned precedents. 

I’ll go with Good Facts. Medium Facts. Any Facts.

OK. Enough dreaming. Gotta get back to work on some of those “Not So Good Facts/Not So Good Law” cases…

OK. So it makes for an amusing story about the cops bursting into a party full of teenagers drinking root beer, but, where was the reasonable suspicion or probable cause for the search and at least temporary seizures of every single person in the house?

Cars lining the street. A house full of young people. A keg and drinking games inside. Police thought they had an underage boozing party on their hands.

But though they made dozens of teens take breath tests, none tested positive for alcohol. That’s because the keg contained root beer.

90 breath tests. No alcohol.

Via Jeff Beckham, the Austin American-Statesman has a feature where subscribers can search property crimes in any area of Austin, by zip code, or even by street. (It’s free, but yes, you may have to ‘sign up’ to use the link.)

The map was created to support reporter Tony Plohetski’s story on property crimes, which looked at more than 40,000 police reports and showed that “property crimes are rarely solved, and the success of solving a case largely depends on where the crime is reported.”

This is a great addition to the site and exactly the type of feature that local newspapers should employ. The only drawback is that these are 2006 numbers, and thus about eight months old.

I think there are potentially other drawbacks, besides the age of the data. In fact, while I can’t prove it, I doubt there are statistically significant differences between actual current and year old data.

Other drawbacks? Well, according to the ‘APD disclaimer’ on the site:

  • Due to methodological differences in data collection, different data sources may produce different statistics.
  • Our data is continuously being updated. The data provided represents a particular point in time and does not take into account the dynamic nature of our databases.
  • The data here may not reflect official Texas DPS, FBI, UCR or NIBRS numbers.
  • The Austin Police Department can not assume any liability for any decision made or action taken or not taken by the recipient in reliance upon any information or data provided.

OK. Sounds like a standard “written by a civil lawyer” disclaimer.

But they could have just replaced it with the most famous quote from Mark Twain’s “Chapters from My Autobiography”:

Figures often beguile me, particularly when I have the arranging of them myself; in which case the remark attributed to Disraeli would often apply with justice and force: ‘There are three kinds of lies: lies, damned lies, and statistics.’

On a criminal defense practice note, I wonder whether the numbers in this database might be crunched to possibly contest a police officer’s contention that one of the reasons he stopped the defendant was “because he was in a high crime area”. It’s almost a joke among defense lawyers that some cops are willing to testify that any area of Austin is “high crime”. Next time I see that in a police report justifying reasonable suspicion to detain, I think I’ll use APD’s own stats to see whether or not it’s true…

Former NPR contributor Randy Cohen’s “Ethicist” column in this Sunday’s New York Times Magazine is titled “Work Search”. In it, he answers a reader’s question about the legality and ethics of workplace searches.

While noting that employers may have a legal right to search handbags etc., Cohen offers reasons why it still may not be the best policy:

To search someone is to treat him as if he were untrustworthy, if not dishonest.

That the hospital searches everyone mitigates this baleful effect slightly, because no employee is being singled out for special scrutiny.

But to mildly humiliate many does not eradicate the sting to each.

I wish more people could understand this effect when the issue of racial profiling comes up in the context of criminal arrests.

Some still proffer the illogical “If you’re not doing anything wrong, then it shouldn’t matter” argument while debating this issue.

Putting aside the “Never mind the Fourth Amendment” problem with that attitude for now, let’s acknowledge that it creates a bigger problem than it attempts to solve.

Subjecting one group of people to even “mild” but persistent humiliation breeds a natural disrespect, then fear, then hatred of law enforcement.

It’s pretty simple really. When a Government treats its citizens with respect, it will likewise receive respect in return.