Can evidence obtained illegally be used against you in court? Sometimes it can—and this summer, the Supreme Court dramatically expanded the government’s ability to use evidence obtained during an illegal police detention. The ruling creates problematic incentives for police, and pushes Fourth Amendment law into “uncharted territory,” claims a former federal prosecutor.
The secretive Foreign Intelligence Surveillance (FISA) Court no longer functions as it was intended when it was formed in 1979, according to a new report from the Brennan Center at New York University School of Law. The court was created under the 1978 Foreign Intelligence Surveillance Act to oversee federal requests for surveillance warrants for individuals on American soil suspected of being foreign agents. “Today, the court's activities resemble neither the granting of warrants nor the ordinary adversarial process for reviewing a challenge to the constitutionality of an agency's program,” researchers write in the report. “Instead, the court provides a veneer of judicial oversight for surveillance activities, blessing mammoth covert programs without hearing from those affected by them.” The report details the court's evolution from overseeing individualized surveillance to now approving requests for mass data collection, “blessing mammoth covert programs without hearing from those affected by them,” a function the report's authors conclude may violate the Fourth Amendment and Article III of the Constitution.
In yesterday's column, I praised the Supreme Court's ruling last month in Riley v California, which barred police from examining cell phones without a warrant. Now, here's my more important point, one I guarantee you're not going to see in the other commentary you're reading. It's a little more difficult to follow, but bear with me, because it's much more significant in the long term. It turns out the same Supreme Court that gave us this excellent decision has also done a lot to prevent novel Fourth Amendment claims from making it to appeals courts in the first place. In our judicial system, there are trial courts and appellate courts.
The Fourth Amendment was the “lead story for criminal justice cases” during the 2012-2013 Supreme Court term, according to the American Bar Association’s (ABA’s) recently released “The State of Criminal Justice 2014.” The newest issue of the ABA’s annual review, which examines major issues, trends and changes in the criminal justice system, declares that “driven by Justice Antonin Scalia, the U.S. Supreme Court demonstrated fundamental doctrinal shifts in analyzing what is a ‘search’ and when warrants may be required.” That shift continued during the most recent Supreme Court session, during which the justices declared that police require a warrant to search cell phones. Editor’s note: For more on the cell phone decision, refer to today’s opinion column by attorney and Fourth Amendment expert Caleb Mason, linked HERE. Other topics covered in the review, include major Congressional efforts to reform the federal criminal code, including the creation of a special House of Representatives Task Force on Over-Criminalization.
Fourth Amendment cases give us great past-vs.-present riddles, little Zen koans testing our constitutional intuitions about technology. How is an email message like a paper-and-envelope letter? How is a computer hard drive like a file cabinet? How is a thermal-imaging scope like a pair of binoculars? How is a cell-phone tower like a human phone-company operator?
Last week, in Florida v. Jardines, the Supreme Court held that the Constitution requires police to get a warrant before they bring a drug dog to the front door of a house to sniff around. To understand what the Supreme Court did in Jardines, it helps to start with the oral argument the Court held that same day in Hollingsworth v. Perry—the California gay marriage case—specifically, with an exchange between Justice Antonin Scalia (the author of Jardines) and attorney Ted Olson, who was arguing that California’s ban on gay marriage is unconstitutional. Justice Scalia: Ok, so I want to know how long it has been unconstitutional…
Olson: … I can’t answer that question, and I don’t think this Court has ever phrased the question in that way. Justice Scalia: I can’t either. That’s the problem.
The rapper Jay-Z can teach students, police and drug smugglers quite a bit about fourth amendment case law, according to Southwestern Law School professor Caleb Mason. An essay written by Mason and published recently in the St. Louis University Law Journal provides a line-by-line analysis of the second verse of the song “99 Problems,” by Jay-Z, from the perspective of a criminal procedure professor. “In one compact, teachable verse (Verse 2), the song forces us to think about traffic stops, vehicle searches, drug smuggling, probable cause, and racial profiling,” according to Mason. The lesson for cops, concludes Mason, is that traffic law can be used as a pretext for catching drug smugglers, but only through a labor intensive process that can include having a K-9 unit on scene or impounding a suspect's vehicle.