Perhaps I'm a little sensitive about these things because I happened to be 2-blocks away when the attacks took place on the World Trade Center on September 11, 2001. But what the hell was the Government thinking when they authorized a plane that is from time to time used to carry the President to buzz ground zero the other day while insisting that the public be kept in the dark?
I get it. The function of the President is mainly symbolic. The concept of the presidency is the closest thing we have in this country to royalty and for whatever reason this country is enamored with the idea of Presidential celebrity. We may be independent of Britain, but we still share a common institutional DNA. For better or for worse, we may not label it as such, but here in America, we love our royalty.
In the past month our President has made conciliatory gestures towards Raul Castro, Hugo Chavez and King Abdullah. His advisors must be screaming in their sleep. I can envision it now: "Must....not....show....weakness...Immediate action is necessary!" And suddenly a great idea occurs, (at least to those from Chicago who didn't deal with the consequences of the 9/11/01 attacks first hand) 'Let's stage a photo op of Air Force One flying over the Statue of Liberty and the site of the former World Trade Center, all for the bargain basement cost of $328,835 according to Bloomberg News. The Presidency is restored...Hallelujah!'
In order to add mystique it is necessary to keep the operation top-secret. After all, anything is more important when it's called a secret. 'OK', they thought, ' we will tell a low-level operative, but under instructions not to inform the public, that way we can say that we publicized the event but it will still be kept quiet. After all the person we tell will listen because he is afraid to lose his job, and even if he might question the judgment of the directive, he will feel important and that will keep him loyal to the military directive.'
So it happens. The Mayor doesn't know...the governor doesn't know. And predictably there is panic in the streets. 9/11 is still raw in New York...believe me.
President Obama did not get the result he expected, at least not here. Now the Damage Control team is on the scene: A statement is crafted: "It was a mistake” said Obama, “it will not happen again.” Plausible deniability? Call me a cynic but this administration is based on the personality of Obama. I find it very hard to believe that anything gets by without, at least, his chief advisors being notified. Furthermore this is from a president that has made transparency a keystone of the administation.
Everyone is entitled to mistakes. I don't believe that Obama, or his advisors were being malicious. But since the President and many of his advisors are from Chicago, where the Sears Tower still stands upright, perhaps the administration didn't realize how touchy New Yorkers are about low-flying planes.
What's done is done. The President got his photo-op. But it's time for real work to take place, work separating the tangible from the ethereal. There is a sense that President Obama is different, and not just because of his race. That's not going to last if he relies on photo-ops and symbolism. People are aching for a Presidency that gets results. People want a restored economy, a controlled healthcare system. An effective educational system. A freer and safer world. If any of that occurs, even to any verifiable degree, photo-ops won't be necessary to prove the strength of the President.
Thursday, April 30, 2009
Thursday, April 23, 2009
A Bi-Partisan Liberal and Conservative Decision Finds That Original Intent Creates New Law
The U.S. Supreme Court turned back 85 years of precedent earlier this week and the surprise of it is that after 30 years of mostly Republican control of the Executive and Legislative branch we received a decidedly liberal decision affirming civil rights. Was this an activist decision or a reaffirmation of the original intent of the Constitution? One thing is for certain. It was an unlikely alliance that caused the result. John Paul Stevens, Ruth Bader Ginsburg, and David Souter--- generally considered liberal judges and Antonin Scalia and Clarence Thomas -- generally considered conservative, formed the majority. The result: the 4th Amendment lives, apparently.
The 4th Amendment is a part of the "Bill of Rights" and deals specifically with the right to be free from unreasonable searches and seizures. The way this works in practice is that absent certain exceptions, a police officer cannot search or use as evidence in court, property of an individual absent 'probable cause' that an illegal act has occurred.
In order to give this law teeth, in a series of rulings in the mid-20th century, courts applied an "exclusionary rule" so that evidence obtained absent a right to do so could not be used. Further, any evidence found as a result of illegally obtained evidence was considered "fruits from a poisonous tree" and "tainted" making it likewise unusable.
The result of the Exclusionary rule is that more than one defendant went free on a "technicality." A Constitutional rule is apparently a technicality when the result is unpopular. However this technicality was incorporated by design; thus the aphorism "better 100 guilty men go free, than one innocent man go to jail." As you might suspect, freeing the guilty is not popular for politicians, police officers, or the public and after the civil rights revolution of the Mid 20th Century many felt that the balance had shifted away from the public's benefit to the advantage of the sociopath.
Starting around 1980 courts started limiting the Exclusionary Rule. The Supreme Court took a survey of cases involving illegally acquired evidence that had the effect of limiting the effect of the exclusionary clause. The Court carved out exceptions for the need of a warrant where the search was made "incident to an arrest" in order to secure the scene, where police had made a "good faith error" or where there were "exigent circumstances" which involved either the risk that evidence would be lost, destroyed or where the public or police officer's safety was at issue.
One of the main exceptions to the 4th Amendment was widely known as the "Automobile Exception."
The first articulation of the Automobile Exception was articulated in a 1925 case: Carroll v. United States where the Supreme Court decided that an officer could search a vehicle without a warrant as long as he had probable cause to believe that evidence or contraband is located in the vehicle. The reasoning was based upon an articulation that there is a lowered expectation of privacy in a vehicle, that vehicles are licensed and therefore regulated by the States and by the nature of vehicles themselves. Since they are mobile a delay requirement for officers to secure a warrant would lead to an increased likelihood of destruction of evidence.
In United States v. Johns, a 1985 case, the U.S. Supreme Court extended the automobile exception to even vehicles that had been seized and in police custody .The court stated, “A vehicle lawfully in police custody may be searched on the basis of probable cause to believe it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search”.
After 15 years of cases severing the effect of the 4th Amendment there were articulated discussions regarding whether the 4th amendment had any effect or whether the exceptions had swallowed the rule. I remember lectures in law school as to whether considering the advance of technology that there was ever a reasonable expectation of privacy and considering the exceptions for good faith, there was ever any basis for excluding evidence whether it was obtained with probable cause or not.
Well, this week we found that the civil rights balance has adjusted. In Arizona v. Gant, announced on Tuesday, the Court ruled that the automobile exception is not absolute. Rodney Gant was arrested by Arizona police for driving with a suspended license. He was handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. There was no safety issue for the officers nor could the car have been driven from the scene. Nothing prevented the police from obtaining a warrant, yet because the arrest involved an automobile and was incident to an arrest, the police did not.
While not absolute, that is not to say that the automobile exception is dead or even that police cannot do a search without a warrant anytime a person is arrested in a traffic stop. Rather, the Court is incorporating a balancing test which takes into account the mobility of a vehicle but does not make it the paramount consideration. Where there is time and no risk that evidence will be lost a police officer has the obligation, as it states in the 4th amendment to obtain a warrant. Perhaps the most important sentence of Tuesday's decision was the reaffirmation of a decision from Katz v. United States. A 1967 (!) decision at the height of the Civil Rights Revolution, "Warrantless searches 'are per se unreasonable', subject only to a few specifically established and well-delineated exceptions."
Over the next few months we will learn whether this is a yield sign or a U-turn for searches and seizures. The same day Gant was announced the Supreme Court heard arguments regarding another case out of Arizona involving a 13 year old student, Savana Redding. Redding, was made to strip down to her underwear at school because a fellow student erroneously gave a tip to school officials that she was holding ibuprofen, basically Tylenol, in violation of the school's drug policy. Was the search a reasonable response to the enforcement of drug policy or intrusive, traumatic and performed without probable cause in violation of the 4th Amendment? Stay tuned.
The 4th Amendment is a part of the "Bill of Rights" and deals specifically with the right to be free from unreasonable searches and seizures. The way this works in practice is that absent certain exceptions, a police officer cannot search or use as evidence in court, property of an individual absent 'probable cause' that an illegal act has occurred.
In order to give this law teeth, in a series of rulings in the mid-20th century, courts applied an "exclusionary rule" so that evidence obtained absent a right to do so could not be used. Further, any evidence found as a result of illegally obtained evidence was considered "fruits from a poisonous tree" and "tainted" making it likewise unusable.
The result of the Exclusionary rule is that more than one defendant went free on a "technicality." A Constitutional rule is apparently a technicality when the result is unpopular. However this technicality was incorporated by design; thus the aphorism "better 100 guilty men go free, than one innocent man go to jail." As you might suspect, freeing the guilty is not popular for politicians, police officers, or the public and after the civil rights revolution of the Mid 20th Century many felt that the balance had shifted away from the public's benefit to the advantage of the sociopath.
Starting around 1980 courts started limiting the Exclusionary Rule. The Supreme Court took a survey of cases involving illegally acquired evidence that had the effect of limiting the effect of the exclusionary clause. The Court carved out exceptions for the need of a warrant where the search was made "incident to an arrest" in order to secure the scene, where police had made a "good faith error" or where there were "exigent circumstances" which involved either the risk that evidence would be lost, destroyed or where the public or police officer's safety was at issue.
One of the main exceptions to the 4th Amendment was widely known as the "Automobile Exception."
The first articulation of the Automobile Exception was articulated in a 1925 case: Carroll v. United States where the Supreme Court decided that an officer could search a vehicle without a warrant as long as he had probable cause to believe that evidence or contraband is located in the vehicle. The reasoning was based upon an articulation that there is a lowered expectation of privacy in a vehicle, that vehicles are licensed and therefore regulated by the States and by the nature of vehicles themselves. Since they are mobile a delay requirement for officers to secure a warrant would lead to an increased likelihood of destruction of evidence.
In United States v. Johns, a 1985 case, the U.S. Supreme Court extended the automobile exception to even vehicles that had been seized and in police custody .The court stated, “A vehicle lawfully in police custody may be searched on the basis of probable cause to believe it contains contraband, and there is no requirement of exigent circumstances to justify such a warrantless search”.
After 15 years of cases severing the effect of the 4th Amendment there were articulated discussions regarding whether the 4th amendment had any effect or whether the exceptions had swallowed the rule. I remember lectures in law school as to whether considering the advance of technology that there was ever a reasonable expectation of privacy and considering the exceptions for good faith, there was ever any basis for excluding evidence whether it was obtained with probable cause or not.
Well, this week we found that the civil rights balance has adjusted. In Arizona v. Gant, announced on Tuesday, the Court ruled that the automobile exception is not absolute. Rodney Gant was arrested by Arizona police for driving with a suspended license. He was handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. There was no safety issue for the officers nor could the car have been driven from the scene. Nothing prevented the police from obtaining a warrant, yet because the arrest involved an automobile and was incident to an arrest, the police did not.
While not absolute, that is not to say that the automobile exception is dead or even that police cannot do a search without a warrant anytime a person is arrested in a traffic stop. Rather, the Court is incorporating a balancing test which takes into account the mobility of a vehicle but does not make it the paramount consideration. Where there is time and no risk that evidence will be lost a police officer has the obligation, as it states in the 4th amendment to obtain a warrant. Perhaps the most important sentence of Tuesday's decision was the reaffirmation of a decision from Katz v. United States. A 1967 (!) decision at the height of the Civil Rights Revolution, "Warrantless searches 'are per se unreasonable', subject only to a few specifically established and well-delineated exceptions."
Over the next few months we will learn whether this is a yield sign or a U-turn for searches and seizures. The same day Gant was announced the Supreme Court heard arguments regarding another case out of Arizona involving a 13 year old student, Savana Redding. Redding, was made to strip down to her underwear at school because a fellow student erroneously gave a tip to school officials that she was holding ibuprofen, basically Tylenol, in violation of the school's drug policy. Was the search a reasonable response to the enforcement of drug policy or intrusive, traumatic and performed without probable cause in violation of the 4th Amendment? Stay tuned.
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