Fourth Amendment Exceptional Or Fantastic

The Norm Is That:

Probable cause, confirmed by an oath or affirmation, must be established before a warrant can be issued for a search or seizure, which violates the rights of all persons to be free from unnecessary searches and seizures.

In the virtual world, we’re currently disputing the use of this as such Fourth Amendment provision. Scott Greenfield and Orin “Same As We Might well Everywhere Else” Kerr got into a scuffle and over comment section on Simple Justice.

Kerr: In my opinion, your decision is between your personal dream of what the Establishment Clause might be and a virtual representation of where the Fourth Amendment actually is. When the decision is (b) because you really do not like the 4th Amendment that we currently have, you complain.

Greenfield: If I want my own personal dream of the 4th Amendment, what is wrong with that?” The Fourth is in a terrible situation, with a general norm that is only lip serviced prefacing a million exclusions. It’s something I would like to see happen. My ideal world is one in which there are no more exceptions to the rule…

Although I concede to simplifying Kerr’s position, you may read the full paper in the law review for yourself if you’re interested. However, it sparked my thoughts on exceptions. There are only so many exceptions that a rule can stand before it becomes a non-rule. As an indication of the magnitude of the problem, only a few examples will be shown.

Police ought to have specific legally articulable facts and conclusions from those facts that cause them to conclude that “criminal conduct may be afoot” before they can use the Terry frisk (Terry v. Ohio). The adjective “unreasonable” is what’s causing all of the troubles. There is no such thing as an unreasonable request, so long as 5 outside from 9 people agree that it is not.

Since Terry was originally intended for pedestrians, we’ll extend it to include drivers who are pulled over for no apparent reason. Police should be entitled to inspect every vehicle in the event of an arrest since it is legal to arrest someone over a traffic infraction. (Atwater v. of Lago Vista) But hold on! In Gant v. Arizona, less than 1 percent of the time, they won’t be able to conduct a search as a result of an arrest. You know, you can’t fraudulently accuse them of removing your things if they have a valid reason to tow your car (an other 99.99 percent of the time).

How about a few checks while we’re driving? Everyone being pulled over by officers, even if there was no evidence of any wrongdoing? There’s an exception for bad guys (Michigan v Sitz), but because checking everyone entering the country is required, you might as well throw around an immigration roadblock exception away from town as well (Illinois v. Lidster).

Exigent circumstances, such as those in full view or on wide fields, are also permitted. Wait. That last one is too significant to be mentioned in passing. “Exigent circumstances” indicates that if the police suspect it’s an emergency, they may not have time to seek a warrant, and we’re not going to force them to do so.

In some cases, a search warrant is obtained and signed by a judge, but even in those cases where a mistake is made (as in U.S. v. Leon), the Supreme Court may construct a good faith exception, which might become the rule by which all others are judged.

What happens if evidence is gathered in an illegal manner? We don’t want to interfere with both the District Attorney’s ability to use it before the Grand Jury in this case (United States v. Calandra). The inevitable discovery concept will justify its admitting if they can establish they would (may) have received the evidence otherwise.

Enough. Even if I haven’t covered everything, I think you get the idea. On the Kerr/Greenfield gap, I’ve spoken before and won’t do it again. But, and this is a big but, may I ask…


Some of the contributors post under their own name, some under nicknames, some pseudonymously. All are practicing criminal defense lawyers, and all are bloggers in their own right. Here are their biographies:

12.44(a): aka Dallas lawyer Robert Guest, he can be found blogging at his regular gig at DCDL. His nickname comes from Texas Penal Code section 12.44.

Blonde Justice: Author of Blonde Justice, where she’s been CDL blogging since May 2004.

Norm Pattis: Author of Fighting For Freedom One Client At A Time, and Defending Sex Crimes, and Lawyers For All and co-author of the Section 1983 blog. Clearly has too much time on his hands, so he agreed to contribute here as well.

Jamie Spencer: Also known to ramble on nonsensically at ACDL and ADLB. Currently posts under Publius, because he hasn’t figured out how to be both an administrator and author under his own name.

Quixote: aka Jeff Gamso of Gamso for the Defense, here tilting at windmills. Because inside every cynic is a romantic, and every criminal defense lawyer is both.

Ishmael: A perpetual optimist, always looking for the best in humanity, who subscribes to the belief that malevolence should never be assumed when mere stupidity will suffice.

Locke: An enlightened philosophical sort, who believes what he believes based on his actual experiences and primarily blogs about the criminal defense view from the trenches.

Publius: Catch all pseudonym for any contributor that wishes to use the name.

A few more contributors have agreed to sign on. Their bios are forthcoming.

Notes From Inside Jury Room

So I picked my wife up from jury duty (she was thrilled when she got the initial invite in the mail; then nearly despondent when I pointed out that being summoned to Municipal Court meant it was “only” for a Class C) and took her to lunch. The entire trial had begun at 8:30 a.m. and finished before we ordered our midday meal at Polvo’s.

Of course, I asked her for the details, and as they got more interesting, started jotting notes on a tiny scrap of paper. The notes resurfaced from the bowels of a desk drawer recently – the trial was about a year ago – and here’s the gist of them.

Class C Failure to Signal Intent charge, pro se (unrepresented) defendant, and one witness: the citing cop. The officer testified that he saw the defendant change lanes without using his signal. On cross, the defendant grilled the officer about whether or not it was possible that he (the cop) had taken his eyes off of his(the defendant’s) vehicle, and perhaps this was when the signal came. The officer declined to agree that this was even a remote possibility.

The defendant didn’t testify, but when his turn came for closing, he asked the judge, “Can’t I tell them that I signaled? It’s obvious from my pleading Not Guilty that I’m saying I used my turn signal.” The judge simply replied no.

The jury retires. And here’s where nearly every worst fear a criminal defense lawyer has about deliberations is confirmed by my wife. Among other matters, the jury discussed the following issues:

Some defendants set cases for trial because they are hoping the cop won’t show up.

While this is true, it’s obviously not a legitimate (charge based) starting point for discussions about guilt/innocence. My notes are sketchy on the next point, but they seem to confirm that the conversation turned to “we only heard one side of the story” ergo, we gotta go with that. Quickly followed by a “why didn’t he just testify” / “if he had said he used his signal, we’d have something” debate.

Next comes my favorite:

I thought using your turn signal was “recommended”. I didn’t know it was against the law.

Perhaps this is the prosecutor’s fear, rather than mine. Essentially, there was a jury nullification argument. My wife didn’t start it, but she told me that she chimed in, something to the effect of, if you’re turning onto a street then yes it’s a law, but if you’re just changing lanes, it’s just something you’re supposed to do.

“Recommended”. I had a discussion with her at lunch about whether or not this was merely a recommendation, or an actual honest-to-goodness traffic violation. And remember, the trial was finished before the waiter brought us the queso and chips. She made it through the whole thing, but was still unsure that this was really, oh I don’t know, what would you call it, a “law”?

The “recommended” discussion is filed under “There but for the grace of God, go I”; I suppose that explains why it’s my favorite part. But moving forward to the punch line, someone else suggests:

I feel sorry for him, but he needs to learn a lesson, and if we find him Not Guilty, he won’t learn a lesson.

Now we’re in prosecutorial dream land deliberations. Let’s get those jurors focused on what might happen (gasp!) if a guilty defendant didn’t learn his lesson. Skip all of that BRD nonsense about the state proving their case, and concentrate on avoiding the worst of all possibilities: an unpunished guilty man. Doubt my thesis that prosecutors often have similar concerns? How about this comment from a recent D.A. Confidential post about DWIs:

What I do know is that many felony DWI-ers get away with acquittals or having their cases reduced to misdemeanors, which seems like positive reinforcement for their behavior.

That’s right, a not guilty verdict is simply a guilty man getting away with it. Can’t have that. Now let’s talk punishment (and back to my notes):

If we’re not sure, we could fine him $20.

Ahhhhh, the compromise verdict. Not a disaster when it comes to traffic offenses, but truly life changing when you’re talking about a felony. My wife gets kudos at this point for saying that she knows we (the jury) are not supposed to do that, to compromise on whether or not he is guilty, but balance it out by giving low punishment.

She didn’t want to tell them she “knew” that from her CDL husband, so she told them she knew that because……..

…she saw it once on Law and Order.

Awesome. Proof positive that Earle Stanley Gardner, et al., are irremovable from our jury rooms. (And remember, at least she was right, not supposed to have compromise verdicts.)

So how did it end up? Guilty, and a $20 fine.