GPS and the Fourth Amendment

               Did the United States Supreme Court really get it right in the new GPS/Fourth Amendment case, United States v. Jones?  And what is “it”?  The opinion is a fragmented affair that might cause more confusion than enlightenment, but for the facts of this case, the conviction was unanimously reversed, even if there was no unanimity regarding the rationale.

          Antoine Jones was suspected of being a drug dealer in the Washington, DC, area, so the cops furtively installed a GPS device on his car [and then replaced the batteries some time later] and monitored his movements 24 hours a day for 28 days.  This was done without a warrant.  Or more accurately, a warrant had been issued in Washington, but it ran out before the GPS was installed, and the installation was in Maryland.

          From monitoring his movements, the cops generated a 2000 page log, which included evidence that he [or the car!] visited a “stash house” where $850,000 and 97 kilos of cocaine were later found.  He was accordingly tried and convicted of a drug trafficking conspiracy and was sentenced to life in prison.  He had brought  a suppression motion in the trial court, alleging that the installation and monitoring of the GPS by the cops violated his Fourth Amendment rights, and that was denied.  The DC circuit court ruled that the conviction needed to be reversed because of the warrantless installation and monitoring of the GPS device.

          There emerged three schools of thought on the high court, the Scalia view that the Framers would have deemed the installation a trespass [for 4 justices, with Sotomayor joining for the result, focusing on the “effects” clause]; the Alito view that one might have a reasonable expectation of privacy that his movements would not be so microscopically analyzed and recorded and used in court [4 justices, focusing on later “privacy” rationales]; and the Sotomayor view that both the installation and the extended monitoring violated the Fourth Amendment privacy and effects standards and that we might have to rethink whether we lose that protection when communicated to third parties in this digital age [for only herself, but joining Scalia for a fifth vote on his effects rationale].

          So, there is the initial attachment school [Scalia], the extensive monitoring school [Alito], and the combined with expansion view [Sotomayor].  What is clear, though, is that all schools of thought, for this case, found that the Fourth Amendment was violated by the cops for not having obtained a warrant.

          What is not fleshed out, notwithstanding the professed “originalism” approach of Scalia, which was sharply and comically debated by Alito, is that the modern “proactive” constabulary which is all over the place, trying to justify its existence daily by playing “Gotcha!” on the public, hiding in the shadows and at intersections and in the bushes and at temporary check points to “find” crime to then suppress, is foreign to the intent of the Framers.

          The King had his proactive agents here, doing what our cops do, harassing, snooping, searching, seizing, arresting, and the Founding Fathers said “get out.”  That is the meaning of complaint number 10 of the Declaration of Independence: “He has erected a Multitude of new Officers, and sent hither Swarms of Officers to harass our People, and eat out their substance.”  Proactive constabulary was inconsistent with the regime of liberty being installed here, and it did not revisit our shores and streets until after the Civil War, during which cataclysm Lincoln proved that cries of “war” and “emergency” would invite rationalized erosion in constitutional limitations and would empower the executive at the expense of the other branches, and would expand “security” and “power” at the expense of liberty.

          So now, we have to invite and discover more searching assessments of how to invoke the Constitution to protect people’s liberties that are eroded by an unintended excrescence increasingly bursting forth on our body politic, the proactive constabulary.  That is, we need Scalia and Alito and Sotomayor in our courts because we no longer have Thomas Jefferson and James Madison in our collective souls.  We are a police state, and thank God the Courts are finally coming around to that understanding.

          And let’s face it, the cops have no trouble getting some obsequious and genuflecting magistrate to issue a warrant for virtually anything they want to do; they have just become so arrogant that they do not want to ask for permission and to put forth justifications for their depredations.  We need to get this system of liberty under control, or else our sloth will result in us losing control, and education about the founding premises of the Republic, and then a resolve to embrace those premises, is what is, but all that is, needed.

Another Innocent Man Convicted in this Land of the Free

Well, it’s happened again, and it will happen over and over and over until  juries stop presuming that their government officials, judges, prosecutors, cops, etc., always tell them the truth: another factually innocent man has had his case set aside after decades in prison, and largely based on erroneous eyewitness testimony.

As reported in the Los Angeles Times [why not in the Desert Sun???], Francisco Carrillo was wrongfully convicted, as digested here:

[LA Superior Court Judge] Bacigalupo overturned Carrillo's 1992 murder conviction Monday after witnesses recanted their identification of him as the gunman and a dramatic reconstruction of the shooting raised doubts about whether they could have ever reliably identified the shooter.

The murder case against Carrillo hinged solely on the word of six teenage boys who had been standing with the victim on a Lynwood street when the gunman drove by. One jury deadlocked 7 to 5 in favor of acquitting Carrillo, but a second jury found him guilty. He was sentenced to two life terms in prison.

Last week, five of the six witnesses testified at the Compton Courthouse that they had not clearly seen the gunman. Among them was the victim's son, who said he made his identification because one of his friends at the scene said he recognized Carrillo as the shooter. That friend also recanted.

The case underscores what legal experts say is the danger of eyewitness testimony. Studies have shown that faulty identifications are the biggest factor in wrongful convictions and that witnesses are particularly unreliable when identifying someone of a different race. The witnesses who identified Carrillo are black, while he is Latino.

This case is merely the tip of an outrageous iceberg of wrongful convictions; they happen all the time. The problem with unearthing them is that not all wrongfully convicted people have the wherewithal to reopen their case, and where the sentences are comparatively short, they would have completed their sentences by the time the system was able to help them.  And a lot of the reason that most of these things don’t get rectified is because judges and DAs are reluctant to give defense attorneys the tools to attend to the matter.  Our U.S. Supreme Court, supreme only in its finality and not in its wisdom, has famously held that for liberty-suffering people to come to them for habeas corpus relief, the Great Writ which is supposed to protect all against arbitrary and evil government [the Framers recognized government is evil; it’s only modern statists who deny such], one must pose an argument other than that he is innocent!  Innocence alone is not enough to undo a wrongful conviction in the tribunal set up to protect us from overweening government!  And we thought Saddam was an extremist in his assaults on Liberty!  Moreover, it is not a foregone conclusion that one can get a court order for post-conviction DNA testing, which is the vehicle by which many wrongful convictions are overturned.  Trial courts and DAs make such very difficult to obtain.

Jurors must, must, must start to look at stuff presented to them with the fundamental skepticism the Framers intended, or else they or their loved ones could, indeed eventually will, get caught up in the illegal conviction-o-mania besetting this land for the last 3 or 4 decades.

When citizens presume their government to be wise, honest, correct, and supportable in its actions, that defines a police state.  And Folks, we are there.  One of the biggest mistakes a defense attorney can make is to call a lying cop a liar; most jurors these days are police groupies and they take great personal umbrage when their badged “heroes” are attacked.

We see instances daily of police and governmental treachery and duplicity and evil, but jurors do not want to believe the one who is smiling at them in court, Boy Scoutishly, is one of those sorts.  And trying to convince the pro-government jurors that the prosecutor has motives other than presenting the unvarnished truth is tantamount to suggesting that the Father of our country, George Washington, cycled his slaves in and out of his Philadelphia government residence every 6 months because of the law that if they lived in Pennsylvania more than 6 months, they would be free, and he didn’t want that.  [Huh?  He did that?  Ooops, sorry, bad example, I guess.  Or the apt one!]

We have a moral imperative in this land, especially if we are going to continue to boast the claim of “exceptionalism,” to understand that liberty is the ascendant value, power is the diminishing value, and the devices the Framers left us for keeping the proper relationship there [beyond reasonable doubt burden on government, presumption of innocence for accused people, neutral jurors working with a neutral judiciary to stand against the waves of tyranny, right to bear arms in the citizenry, warrants for liberty invasions, and a non-proactive constabulary], or else the tears shed at 4^th of July parades when the Flag goes by is sheer hypocrisy – or worse.

Let us return the Republic to an even, liberty-oriented keel.  And let’s compensate those wrongfully convicted handsomely from the coffers of the prosecutors and judges who did not do their jobs, and if there was malice on the part of those prosecutors, judges, or the investigating cops that gave rise to the wrongful convictions, let them serve the same sentence illicitly imposed on innocent citizens.  For all wrongs, there needs to be a remedy commensurate with the gravity of the wrong.