The Rights of the People

by David K. Shipler

  13. Bill Torpy, “Big Score Holy Grail for Drug Officers,” Atlanta Journal-Constitution, Jan. 13, 2007, p. 1A; Torpy, “Cop Murder Charges Sought,” Journal-Constitution, Feb. 8, 2007; Rhonda Cook, “Police Lied, Informant Says,” Journal-Constitution, Nov. 28, 2006, p. 1A; “Web Extra: Gregg Junnier Quotes,” WSBTV, March 6, 2009. All three, Jason R. Smith, Gregg Junnier, and Arthur Tesler, pleaded guilty to federal charges of conspiracy to violate civil rights resulting in death. The first two also pleaded guilty to state charges and were sentenced to concurrent jail terms. Two other officers pleaded guilty to federal charges. “Three Former Atlanta Police Officers Sentenced to Prison in Fatal Shooting of Elderly Atlanta Woman,” Dept. of Justice, Feb. 24, 2009, http://www.usdoj.gov/opa/pr/2009/February/09-crt-159.html. “Former Atlanta Police Sergeant Sentenced to Federal Prison for Warrantless Break-in of Private Home,” Dept. of Justice, http://atlanta.fbi.gov/dojpressrel/pressrel09/atl061909a.htm.

  14. Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America (Washington, D.C.: Cato Institute, 2006).

  15. Bill Torpy, e-mail to author, Feb. 12, 2007.

  16. United States v. Luong, 470 F.3d 898 (9th Cir. 2006). On appeal, the government conceded that the affidavit did not support probable cause but argued, unsuccessfully, that the evidence should be admitted under the “good faith” exception in Leon, discussed below. The Ninth Circuit stated, “The warrant in this case was so lacking in indicia of probable cause that a reasonably well-trained officer could not have relied on it in good faith.” The appeals court also held that oral statements by the officer to the issuing magistrate, supplementing the sworn affidavit, could not be considered, given the Fourth Amendment’s requirement for “probable cause, supported by Oath or affirmation.” The government had cited cases from other circuits allowing such consideration: United States v. Legg, 18 F.3d 240, 243–44 (4th Cir. 1994) and United States v. Maggitt, 778 F.2d 1029, 1036 (5th Cir. 1985).

  17. United States v. Martedis McPhearson, 469 F.3d 518 (6th Cir. 2006).

  18. United States v. Leon, 468 U.S. 897 (1984). White wrote for the majority; Brennan, Marshall, and Stevens dissented.

  19. Potter Stewart, “The Road to Mapp v. Ohio and Beyond,” Columbia Law Review 83, Oct. 1983, p. 1401.

  20. Ibid., p. 1365.

  21. Craig M. Bradley, ed., Criminal Procedure: A Worldwide Study (Durham, N.C.: Carolina Academic Press, 1999), pp. 85, 105, 195–96, 230, 259, 295. In Germany, evidence can be excluded at the court’s discretion, but not if a judge would have authorized a search. In England, police can be sued for trespass.

  22. Common law, “based on custom and usage,” evolved into an amalgam of Anglo-Saxon and Norman law following William the Conqueror’s invasion of England, in 1066. Though never written, it formed the foundation of court decisions and, most famously, the Commentaries on the Laws of England by Sir William Blackstone, from which it entered the statutes of virtually all states “except Louisiana, which is still influenced by the Napoleonic Code.” http://dictionary.law.com/definition2.asp?selected=248.

  23. Commonwealth v. Dana, 43 Mass. 329, 337 (1841). Quoted in Timothy Lynch, In Defense of the Exclusionary Rule (Washington, D.C.: Cato Institute, 1998), p. 28, http://www.cato.org/pubs/pas/pa-319.pdf.

  24. Weeks v. United States, 232 U.S. 383 (1914). The unanimous opinion was written by Justice William Rufus Day. It had some antecedants in Boyd v. United States, 116 U.S. 616 (1886), a civil forfeiture case, and Adams v. New York, 192 U.S. 585 (1904). In Boyd, the Court excluded private books and papers illegally seized as a violation of the Fifth Amendment’s bar on compulsory self-incrimination. That meant that personal papers could be suppressed, for example, but not guns or drugs. In Adams, however, Day rejected an appeal to suppress gambling evidence regardless of how it was obtained. A decade later in Weeks he granted the defendant’s appeal on different grounds: that Weeks had moved for the return of his illegally seized papers rather than their exclusion from trial—a distinction with the same result.

  25. The doctrine was broadened in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), which suppressed the entire chain of evidence, even when legally obtained but based on information originating in an illegal search, and in Agnello v. United States, 269 U.S. 20 (1925), which excluded evidence seized in a warrantless search of the home of a suspect arrested elsewhere; a warrantless search incident to arrest does not extend to other places.

  26. Wolf v. People of the State of Colorado, 338 U.S. 25 (1949). The Court found that the Fourth Amendment applied to the states but the remedy of the exclusionary rule did not.

  27. The tactic was ended by the Supreme Court in Elkins v. United States, 364 U.S. 206 (1960), a year before applying the exclusionary rule to the states in Mapp v. Ohio.

  28. Lynch, In Defense of the Exclusionary Rule, p. 26.

  29. Mapp v. Ohio, 367 U.S. 643 (1961). The ruling was 6–3, with Tom C. Clark writing for the majority and John Marshall Harlan, Felix Frankfurter, and Charles Evans Whittaker in dissent. Police entered a house without a search warrant and found pornography. The appeal by Dollree Mapp argued that the law under which she was prosecuted violated the First Amendment. The Court took the opportunity, raised only in amicus briefs, to overturn Wolf. See David M. O’Brien, Constitutional Law and Politics, Vol. 2 (New York: Norton, 2003), p. 973, reproducing letter from Potter Stewart to Tom Clark.

  30. Sidney E. Zion, “Detectives Get a Course in Law,” New York Times, Apr. 28, 1965, p. 50.

  31. “Evidence shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or other authorization.” Military Commissions Act of 2006, 10 U.S. 47A, § 949a (2)(B). The provision was amended in 2009 to read, “Evidence seized outside the United States shall not be excluded” [emphasis added]. 10 U.S. 47A, § 949a (3)(A) of 2009.

  32. United States v. Calandra, 414 U.S. 338 (1974).

  33. United States v. Janis, 428 U.S. 433 (1976).

  34. United States v. Havens, 446 U.S. 620 (1980). A decade later, in James v. Illinois, 493 U.S. 307 (1990), a 5–4 majority refused to extend the exception to all defense witnesses.

  35. Nix v. Williams, 467 U.S. 431 (1984). A murder defendant in custody, but not warned of his right to remain silent, disclosed the location of his ten-year-old victim in a ditch. The condition of the body was the issue. His first trial was overturned because of the inadmissibility of his unwarned statement; his second trial, without the statement, was upheld on the grounds that the body’s condition would have been observed when inevitably found by the police during the search of the area. Also, Segura v. United States, 468 U.S. 796 (1984), where evidence would have been obtained through independent sources.

  36. Stone v. Powell, 428 U.S. 465 (1976).

  37. United States v. Leon, 468 U.S. 897, 929 (1984). Jurisprudence never moves in a straight line, though. In a counterpoint, Georgia v. Randolph, 547 U.S. 103 (2006), held that police could not conduct a warrantless search where a resident who is present objects even though another resident consents. A man’s estranged wife gave permission, her husband refused, the police entered anyway, and found cocaine. The Court applied the exclusionary rule, suppressing the evidence. Roberts, Scalia, and Thomas dissented. Alito did not participate.

  38. Arizona v. Evans, 514 U.S. 1 (1995).

  39. Herring v. United States 07-513 (2009).

  40. United States v. Banks, 540 U. S. 31 (2003).

  41. Hudson v. Michigan, 04-1360 (2006). Dissent by Breyer.

  42. “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.” 18 U.S.C. § 3109.

  43. 42 U.S.C. § 1983, 1988(a). Federal law also imposes up to a year in prison for an official found guilty of depriving anyone of cons
titutional and statutory rights. Prosecutions are rarely brought, however. 18 U.S.C. § 242.

  44. Rowley tried and failed in the summer of 2001 to get headquarters to authorize a search of the computer belonging to Zacarias Moussaoui, an unreliable al-Qaeda operative who was taking flying lessons in Minnesota. FBI suspicions prompted Moussaoui’s arrest on Aug. 17 for overstaying his visa, but agents were uncertain that they had sufficient probable cause to get an ordinary search warrant, so they never applied for one. They preferred a secret warrant under the Foreign Intelligence Surveillance Act, which required probable cause to believe that Moussaoui, a French citizen, was an agent of a “foreign power,” whose definition included a terrorist organization. Although the Minneapolis FBI office obtained information from France of his contacts with a Chechen leader, FBI headquarters did not believe that was enough for a FISA application. See the National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report (New York: W. W. Norton, 2004), pp. 273–76. Moussaoui later pleaded guilty to being part of the 9/11 conspiracy and was sentenced to life. His subsequent motion to withdraw his plea was denied.

  45. United States v. Calandra, 414 U.S. 338 (1974).

  46. 1 Annals of Congress, p. 439.

  47. Lynch, In Defense of the Exclusionary Rule, p.1.

  48. People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926).

  49. Stewart, “The Road to Mapp v. Ohio and Beyond.” Cited in Brennan’s dissent.

  50. Treasury Employees v. Von Raab, 489 U. S. 656 (1989).

  51. Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989).

  52. O’Brien, Constitutional Law and Politics, Vol. 2, p. 913.

  53. The Court denied certiorari in Willner v. Barr, 502 U.S. 1010 (1992), in which the D.C. Circuit had allowed suspicionless testing of all public employees.

  54. Chandler v. Miller, 520 U.S. 305 (1997). Ginsburg wrote the opinion. Rehnquist was the lone dissenter.

  55. Ferguson v. Charleston, 532 U.S. 67 (2001). In dissent were Rehnquist, Scalia, and Thomas.

  56. Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). The vote was 6–3, with Scalia—who had dissented in the U.S. Customs case—writing for the majority, and O’Connor, Stevens, and Souter dissenting.

  57. Linda Greenhouse, “Supreme Court Seems Ready to Extend School Drug Tests,” New York Times, March 20, 2002.

  58. Board of Education of Independent School District No. 92 of Pottawatomie County et al. v. Earls et al., 536 U.S. 822 (2002). In the majority were Thomas, Breyer, Kennedy, Scalia, and Rehnquist; in the minority, Stevens, Ginsburg, Souter, and O’Connor.

  59. Tamar Lewin, “Raid at High School Leads to Racial Divide, Not Drugs,” New York Times, Dec. 9, 2003, p. A16. Alexander v. Goose Creek, consent decree, Exhibit C, cv-03845, filed March 27, 2006, found at http://www.aclu.org/images/asset_upload_file313_24952.pdf. “Landmark Settlement Reached in Notorious Drug Raid Caught on Tape,” ACLU statement, July 11, 2006, at http://www.aclu.org/drugpolicy/youth/26123prs20060711.html.

  60. Eric Rich, “Rural Md. Drug Search Becomes a Sore Subject,” Washington Post, May 13, 2004, p. B1. “Students in Kent County School Drug Sweep Case Win Landmark Settlement,” ACLU statement, Aug. 6, 2007.

  61. Safford United School District v. Redding, 08-479 (2009). Six justices—Souter, Roberts, Scalia, Kennedy, Breyer, and Alito—signed the opinion. Stevens and Ginsburg agreed that the search was unconstitutional but dissented on the grant of immunity, arguing that the rules had been clearly established in a previous decision, New Jersey v. T.L.O., 469 U.S. 325 (1985), which said that a school search must not be “excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Thomas agreed on immunity but believed there was no violation of the Fourth Amendment.

  62. Adam Liptak, “Strip-Search of Girl Tests Limit of School Policy,” New York Times, March 23, 2009.

  63. Samson v. California, 547 U.S. 843 (2006). A policeman, who saw Donald Curtis Samson walking down the street, searched him and found methamphetamine inside a cigarette box. The Court found that parole was more akin to imprisonment than probation was. Previously, some suspicion had been necessary for a warrantless search of a parolee, and in dissent, Stevens, Breyer, and Souter wrote, “What the Court sanctions today is an unprecedented curtailment of liberty. Combining faulty syllogism with circular reasoning, the Court concludes that parolees have no more legitimate an expectation of privacy in their persons than do prisoners.”

  64. Rocio Sanchez v. County of San Diego, CV 00-1467 JYM (S.D. Cal. 2007). The District Court judge had ruled in favor of the county, a Ninth Circuit panel upheld the ruling 2–1, a majority of the Ninth Circuit refused to rehear the appeal en banc (generating the dissent quoted), and the Supreme Court denied certiorari.

  65. Wyman v. James, 400 U.S. 309 (1971).

  66. Editorial, “A Loss for Privacy Rights,” New York Times, Nov. 28, 2007, p. A26.

  CHAPTER 5: PATRIOTIC ACTS

  1. “Judge Unseals Evidence for Lawyer Wrongly Arrested in Madrid Bombings,” AP, Sept. 21, 2004, and letter to Elden Rosenthal, Mayfield’s lawyer, from Assistant U.S. Attorney Sara Clash-Drexler, March 24, 2005, quoted by Noelle Crombie, “Mayfield Home Was Searched in Secret,” The Oregonian, March 30, 2005, p. D01.

  2. Foreign Intelligence Surveillance Act, 50 U.S.C. Chap. 36.

  3. No. 103-359, 108 Stat. 3444 (Oct. 14, 1994). Previously, the attorney general could authorize such secret searches, but their fruits were susceptible to suppression if a criminal case resulted.

  4. Someone whose home has been searched under FISA may be notified later if prosecuted or if the attorney general finds that “there is no national security interest in continuing to maintain the secrecy of the search.” 50 U.S.C. § 1825(b). The Patriot Act also amended 18 U.S.C. § 3103(a), to give judges the power to authorize a delay in notifying the target of any federal search warrant for a “reasonable period.”

  5. Richard B. Zabel and James J. Benjamin, Jr., In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, Human Rights First, May 2008, pp. 95–96.

  6. In Re: All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp2d 611 (FISC 2002), Multiple Docket Numbers, May 17, 2002, pp. 16–17.

  7. FISA Amendments Act of 2008, H.R. 6304, incorporated into 50 U.S.C. § 1801. This opened the way to mass interception of huge quantities of phone calls and e-mail and other Internet traffic without specifying targets. The provision is not supposed to be used “intentionally” against anyone inside the United States or against “United States persons” abroad. A U.S. person is defined by 50 U.S.C. § 1801(i) as “a citizen of the United States, an alien lawfully admitted for permanent residence … an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States.” But the FISA court has no role in monitoring ongoing surveillance it approves at the outset, so there is no oversight of whether intelligence agencies stop interception if they discover that a party is a U.S. person. For further discussion, see Chapter 6.

  8. 50 U.S.C. § 1805(a)(3).

  9. Glenn A. Fine, A Review of the FBI’s Handling of the Brandon Mayfield Case, Office of the Inspector General, U.S. Department of Justice, March 2006, http://www.justice.gov/oig/. All references in the text to the Inspector General’s report on Mayfield derive from this document.

  10. To get a FISA warrant against a “non-U.S. person”—a foreigner in the U.S. illegally or for illegitimate purposes—authorities no longer have to show probable cause of his connection with a foreign organization, but merely that he alone “engages in international terrorism or activities in preparation thereof.” This so-called “lone-wolf provision” was added to FISA, at 50 U.S.C. § 1801(b)(1)(C), by Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004.

  11. 50 U.S.C. § 1
805(a)(3)(B).

  12. For a history of the “wall,” see Diane Carraway Piette and Jesselyn Radack, “Piercing the ‘Historical Mists’: The People and Events Behind the Passage of FISA and the Creation of the ‘Wall,’ ” Stanford Law and Policy Review, Vol. 17:2, Spring 2006. Also, see The 9/11 Commission Report (New York: W. W. Norton, 2004), p. 539, n. 83. The commission found no legal reason that intelligence information on the potential hijackers who had entered the United States could not have been shared with criminal agents.

  13. Michael E. Rolince, transcript, “Panel II of a Joint Hearing of the Senate and House Select Intelligence Committee,” Federal News Service, Sept. 20, 2002.

  14. The destroyer was attacked on Oct. 12, 2000, in Aden, Yemen, by a small boat laden with explosives. Seventeen crewmen were killed. The parallel investigations of Mihdhar—the criminal side for his alleged involvement and the intelligence side for his role as a suspected terrorist—never merged. The National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report, pp. 266–72.

  15. James Bamford, The Shadow Factory (New York: Doubleday, 2008), pp. 19–20.

  16. In Re: All Matters Submitted to the Foreign Intelligence Surveillance Court, p. 17.

  17. The 911 Commission Report, p. 539 n.

  18. USA PATRIOT Act of 2001, Public Law 107-56, § 504, amending 50 U.S.C. § 1806(k)(2). The Foreign Intelligence Surveillance Court of Review, comprising three conservative semiretired judges who had never served on the FISA court, convened for the first time in history and heard secret oral argument from only the government side on Sept. 9, 2002. Although two amicus briefs were submitted from civil liberties groups, neither they nor anyone representing the opposing view was allowed to argue the case. The Court of Review, in an opinion riddled with factual errors that might have been caught in an adversary proceeding, upheld the removal of the wall and overturned a unanimous decision by the lower, seven-judge Foreign Intelligence Surveillance Court that had rejected the government’s proposal, post—Patriot Act, to allow criminal investigators to direct the use of FISA for prosecutorial purposes. Finding a contradiction between the FISA statute and the government’s interpretation, the lower court had sounded this warning: “Criminal prosecutors will tell the FBI when to use FISA (perhaps when they lack probable cause for a Title III electronic surveillance), what techniques to use, what information to look for, what information to keep as evidence and when use of FISA can cease because there is enough evidence to arrest and prosecute.” The peculiar nature of the proceeding was illustrated by the fact that the court heard, in secret, from only one side of the argument: the government. In Re: All Matters Submitted to the Foreign Intelligence Surveillance Court, pp. 23–24. The Court of Review, however, found ample support in the 1978 legislative history of FISA for the concept that “intelligence and criminal law enforcement tend to merge in this area,” as the Senate report on the law declared. Noting that practically all foreign intelligence also produces evidence of criminal conduct (except for the sheer monitoring of diplomatic communications between an embassy and its foreign ministry, for example), the Court of Review held that the Patriot Act’s amendment to FISA, “by using the word ‘significant,’ eliminated any justification for the FISA court to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses.” The opinion stresses that FISA cannot be used in domestic criminal investigations lacking any foreign intelligence purpose whatsoever. The court concluded, “We think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close.” In Re: Sealed Case No. 02-001, 310 F.3d 717 (2002), decided Nov. 18, 2002, pp. 11, 29, 48. The presiding judge of the lower court, Royce Lamberth, had this acerbic reaction in a 2007 speech: “The Court of Review, in a very curious opinion, said that every attorney general in the last twenty-five years that had interpreted FISA had interpreted it wrong, and that all seven judges on the FISA Court were wrong, and here’s the new interpretation. They’re final because they’re above me, but that doesn’t make them right.” Royce Lamberth, American Library Association, June 20, 2007, at http://www.ala.org/ala/washoff/washevents/woannual/