Category Archives: Fourth Amendment

Jeffs appeals. In his own handwriting.

This is a picture of Warren Jeffs, which was t...

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Had enough of Warren Jeffs, yet?

If you answered ‘no,’ you’re in luck. He’s doing his darnedest to stay in court, filing a pro se motion for a new trial in Texas.

Written in his own hand.

First off, let me just say: I’m reassured to see that someone out there has worse handwriting than myself, if just barely.

Second, and more to the point: Jeffs is arguing that he deserves a new trial on the basis that his First Amendment right to freedom of religion was violated by the original trial. To quote (if I can decipher):

The constitutional protection for religious faith and freedom of practice not being of full protection in previous trial, which constitutional religious protection of religious rights, Freedoms [sic], and religious practice should be upheld and supreme;

[…] This not being upheld, so openly, in previous trial, is legal grounds sufficient to rule in favor of defendant allowed a new trial[.]

Followed by quick Fourth Amendment appeal, almost as an afterthought:

[A]lso the court not allowing a full hearing on the suppression centered around illegal search[.]

Ironically, it’s probably the Fourth Amendment appeal that could help him most, not the First Amendment/Freedom of Religion appeal. Jeffs’ rights to practice his religion stop where they impede on the rights of another person, specifically, in his case, the rights of 15-year old girls to live free from rape or molestation. On the other hand, the evidence, he might argue, was collected by the government illegally.

The whole Texas case against Jeffs’ hinges on evidence collected after an anonymous call from a woman claiming to be 16-year old victim of the FLDS marriage system. Receiving the call, Texas justice snapped into action, raiding the compound and collecting, in addition to upwards of several hundred children, records and recordings that would become evidence of Jeffs’ marriage to underage girls.

However, it turns out that the 16-year old caller had long left her teens…and her twenties, and was actually 33-year old Rozita Swinton in Colorado Springs, Colorado who had never even been a member of the FLDS church.

If the anonymous call wasn’t legitimate, does that mean that evidence collected wasn’t permissible in court, either? Now were getting into classic “search and seizure” territory, and that’s the place that Jeffs should be going, not towards appeal on religious freedom grounds. He’ll find no sympathy in his rights to practice a religion that the rest of America looks at as abusive to teenage girls. On the other hand he may find some traction if he argues that the government inappropriately barged into his home and took evidence against him without a valid warrant.

And finally, for Pete’s sake, get an attorney! If Casey Anthony can incur the wrath of a whole nation of daytime t.v. watchers just because of people like this woman (and some really bad facts, too) and still get off because of a competent defense attorney (this guy), then even Warren Jeffs could do better than representing himself. Because when you go pro se, you don’t get a lesser standard, you don’t get any extra help from the judge, and you don’t get any extra sympathy from the world, either. You just look incompetent, kooky, and arrogant.

Frankly, there is a whole army of defense lawyers out there who would love to make their career fighting for your First and Fourth Amendment rights, no matter how repugnant your lifestyle seems to them (or how many times the judge says, No, you can’t appeal again). You might as well let them. It can’t hurt you. Further, it’s a lot easier to blame your counsel on appeal when it’s another attorney, not yourself.

And, at the very least, they would type the motions, and that would make it easier for the rest of us to read.

[Hat tip to Ben Winslow]

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Beat TSA without staying home for the holidays

Gotta fly this year? Not looking to be electronically stripped by an  underpaid, under-trained, and overzealous TSA employee? And not looking to be the next John Tyner, either?

Beat the TSA with a new set of underwear that has “passive/aggressive” written all over it. 

According to Tech Crunch:

The brainchild of Stephen Russell, the founder and chairman of surveillance search engine and facial recognition company, 3VR Security; Privates essentially distorts the shapes seen in airport body scanners. The garment fuzzes out a traveler’s privates using body scanner resistant materials. But Russell says that the pattern isn’t so dense that it will get you pulled out of line, writing that the “effect is much like wearing a loose sheer piece of clothing.

Get to the airport, get through security, and get on the plane…all without that feeling of being violated. All for the low price of about $100. (oh, and also, they’re not available until January…so forget about using them for Christmas flying)

Let me know how it works for you. I’ll be driving.

(h/t to Tech Crunch)

“Live Free, or Die Hard,” or Big Brother is watching? The Brave New World of cell phone tapping. PART I

Among the coolest of gadgets are those which use an internal GPS device to tell you where you are on the map.  I use one in my phone and, thanks to an app from Google that I downloaded for free, it allows me to pinpoint my location, pin it on a map, and plot out the fastest route between point A and point B.  As a former Boy Scout who proudly brought home his Orienteering Merit Badge as a teenager in the early 1990s, I think the technology  that to make a map, put myself on it, and find any address–all within my phone the size of my palm–is about as cool as it gets.

It appears, however, that the information on my forays using my phone’s GPS capabilities are not limited to me.  It was only a few years ago that cell phones were the size of bricks and limited to only the most wealthy.  As they have become ubiquitous, the ability access them has increased, too.  No longer just phones, they are practically personal computers, and it won’t be long before the line between the two disappears altogether.   And, as they have gone from being a luxury to almost a necessity, from just a phone to performing many of the functions of a PC, the ways and means to access the private information they carry has increased, too.  The phone calls I make  and the data I access and store might be available to a person with the right means and technology, or, almost more frighteningly, the government.

But how scared are we?  While cell and computing technology has flown forward at a blinding pace, the law regarding the access of private information has not kept pace (no surprise there, actually…).  Yet, even as more private information has become accessible, and I’m not talking about your status updates to Twitter and Facebook, are we really that worried about it?  Perhaps we are already expecting it?  Television and movies are so full of  the government’s use of GPS and cell phone data that it is almost passé. I can’t remember the last time I saw a police procedural–other than perhaps Law and Order–where the crime was solved without appealing to cell phone records.  Think 24, Live Free, or Die Hard, or the recently popular Castle. Some shows are probably more accurate than others, but regardless of how accurate, the point is that the access to cell phone records is pervasive throughout television.  Can’t find where the suspect was during the time in question?  Just get a warrant for his cell phone records…unless you’re Jack Bauer.  Then you just do it, because that’s how he rolls, and there probably isn’t time to get a stupid warrant, anyway. (See also: disregard of the Constitution in television, torture, repetitive plot lines, and television characters that don’t eat or use the restroom.  Ever.)

Unfortunately, the law regarding the government’s right to access our phone records isn’t very developed, yet.  In law school, we were taught that the Fourth Amendment protected persons from government search without a warrant:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Warrants must be based on probable cause (which, if you’re Jack Bauer, means he can search you because he says so), the most common definition of which is the “reasonable belief that a crime has been committed.”  There’s a whole long line of Supreme Court jurisprudence about what qualifies as probable cause, which I won’t go into here, but suffice to say: the law allows that a search can only be conducted under certain situations, is limited to certain parameters defined in the warrant, and if these parameters are violated, or if the search was conducted without a valid warrant, any evidence found can be excluded from the trial of the suspect.

Maybe that’s why Jack seems to always knock off the bad guy–killing the bad guys provides a much cleaner ending to a crisis than a long and drawn out court case, which I am sure Eric Holder is thinking right about now.   Until and unless Jack Bauer and the executives at Fox run the world of crime fighting and criminal prosecution, though, the rest of us are protected from the abuse of government by the Constitution.

Which brings me to the point: where do cell phones and the data they transmit fit into that scheme?  It is a useful tool for law enforcement, even if the exact parameters of that use is still gray.  CNET reports that:

Two years ago, when the FBI was stymied by a band of armed robbers known as the “Scarecrow Bandits” that had robbed more than 20 Texas banks, it came up with a novel method of locating the thieves.

FBI agents obtained logs from mobile phone companies corresponding to what their cellular towers had recorded at the time of a dozen different bank robberies in the Dallas area. The voluminous records showed that two phones had made calls around the time of all 12 heists, and that those phones belonged to men named Tony Hewitt and Corey Duffey. A jury eventually convicted the duo of multiple bank robbery and weapons charges.

The FBI got the bad guy, but who determines which of us is that bad guy before the government starts looking into our records?  The Obama Administration is thinking about this, thank heavens.

In briefs filed for oral argument on February 12, the Obama Administration argued that Americans enjoy no expectation of privacy in their phone calls, or at least their whereabouts when making those calls.  Requesting the right to demand a phone service’s records, the “U.S. Department of Justice lawyers say that ‘a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records’ that show where a mobile device placed and received calls.”

Naturally, this has the ACLU and company gathering up their pitchforks, hot tar and feathers.

“This is a critical question for privacy in the 21st century,” says Kevin Bankston, an attorney at the Electronic Frontier Foundation […]. “If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment.”

To be continued…

Too many air fresheners CAN get you in trouble.

This just in from the Utah Court of Appeals: too many air fresheners is sufficient cause for reasonable suspicion.  From

Overwhelming number and odd collection of air fresheners is reasonable suspicion. State v. Richards, 2009 UT App 397 (December 31, 2009):

¶1 This appeal presents the issue of whether a police officer had a reasonable, articulable suspicion that criminal activity was afoot so as to justify the investigatory detention of Defendant Heather Richards when the officer was confronted with the overwhelming smell of air fresheners and saw multiple odor masking agents such as orange rinds, Lysol, and Armor All. We conclude that the odd combination of odor masking agents and strong smells emanating from defendant’s vehicle are objective facts that gave rise to a reasonable, articulable suspicion that
Defendant was involved in drug trafficking.

Apparently, using too many air fresheners can be unwise.  Who knew?