Scotus Hocus Pocus

Veterans Day procession, Fallbrook

I don't think I can be accused of hyperbole for calling the current bench of the Supreme Court the group most antagonistic to the civil and personal rights of the American citizen in history. From the Citizens United case that denoted personhood on corporations to Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005) this court seems to be quite brazen about carrying water for their rich corporate allies. Read Hudson v. Michigan, Walmart v. Dukes or AT&T Mobility LLC v. Concepcion and you will see the limbo dance the Roberts Court performs to screw the little guy and fellate their corporate cronies.

Because I expect the worst from this bunch on a daily basis, I was mildly shocked by two cases that came before the court this week. The first was the Antoine Jones case, in which the police attached a GPS tracking device on the defendant's Jeep Cherokee for a month, without a warrant, and used the resultant evidence to convict him of cocaine trafficking. At one time we had a fourth amendment in this country which protected us against unreasonable search and seizure.

Anyhow the United States Court of Appeals for D.C. overturned Jone's conviction and Obama's justice department appealed to SCOTUS. Michael R. Dreeben, United States Solicitor General says that there are no constitutional limits to the government's ability to track people's public movements. He said you can even bug someone's clothing without a warrant unless it broadcasts information from inside a home.

Justice Ginsburg asked and got confirmation from Dreeben that the "endpoint" to the government's argument was that the government could monitor whatever they wanted as long as a person was not at home. Justice Breyer told Dreeben that "if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” And that, Justice Breyer said, “sounds like ‘1984.’ ”Mr. Dreeben said, “The court should address the so-called ‘1984’ scenarios if they come to pass, rather than using this case as a vehicle for doing so.” He noted that the government doesn't intend to engage in universal 1984 style snooping. Does anybody with a sound mind take them at their word?


Sotomayor joined in,“It wouldn’t take that much of a budget, local budget, to place a GPS on every car in the nation,” she said. Mr. Dreeben said law enforcement officials have used GPS tracking sparingly. At the federal level, he said, “It’s in the low thousands annually.” Justice Sonia Sotomayor suggested the government’s position went too far, especially in the age of “smart phones” that contain GPS tracking devices. “It would be OK to put a computer chip and put it on somebody’s overcoat?” she asked. Dreeben said Sotomayor was off base because her scenario would allow GPS monitoring inside a home. “That is off-limits,” he said. However, “a car parked in the garage,” he added, “does not have a reasonable expectation of privacy.”

The fulcrum for the Obama Administration's argument in support of warrantless GPS tracking is the high court’s 1983 decision in United States v. Knotts, in which the justices said it was OK for the government to use beepers known as “bird dogs” to track a suspect’s vehicle without a warrant. The appeals court said the beacon in the 1983 case tracked a person, “from one place to another,” whereas the GPS device monitored Jones’ “movements 24 hours a day for 28 days.”

The issue now is if the government has a right to monitor us 24 hours a day, it is within the capabilities of our current technology to create a data map showing the location of every movement of every citizen  that owns a cellphone for any length of time. Since when did the right to unreasonable search only exist in the home anyway?

What I find mildly amusing was that the normally staid Chief Justice finally perked his ears when the conversation started to hit close to home:

Chief Justice John Roberts wondered aloud whether the government’s position was that it may secretly attach GPS devices to the cars of the nine members of the Supreme Court without a warrant.
“You think they are entitled to do that?” Roberts asked.
“The justices of the Supreme Court?” Dreeben replied.
“So your answer is, ‘yes,’ you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?” the chief justice continued.
“Well, equally, Mr. Chief Justice, if the FBI wanted to it could put its team of surveillance agents around the clock on any individual and follow that individual’s movements as they went around on the public streets …, Dreeben replied.

No problem bugging the phones and cars of ordinary Americans but evidently the surveillance of justices is another matter. Those of you who expected more from this administration, well, get in line.

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A great article in the WSJ last week on the matter. A Magistrate in Texas, Stephen Smith, decided to say no and deny the government's cell phone tracking request. Apparently they get one approximately every fifteen minutes, over 30,000 per year.


The so-called magistrates' revolt traces its history to a 2005 opinion written by Magistrate Smith in Texas.


Magistrate Smith said he was puzzled by cellphone-tracking requests when he was new to the bench: he couldn't find a provision in the law allowing police to track a phone for as long as 60 days without a search warrant. To learn more, he visited the U.S. Marshals surveillance operation and quizzed lawyers at cellphone companies about government requests.


Prosecutors told him they had authority to track phones with a court order by combining two portions of the 1986 law: one allows collection of historical location data; the other allows the real-time collection of cellphone calling data but not location. Taken together, the government argued that it could track a cellphone's location without having to show probable cause.


On Oct. 14, 2005, Magistrate Smith denied a government request in an opinion that called the government's legal theory "undeniably creative." But "mixing and matching of statutory provisions," he said, would create a "new form of electronic surveillance" not envisioned by the law.


Within six months, nine other magistrates also denied tracking requests, relying in part on Magistrate Smith's reasoning. Other magistrates sided with the government, agreeing that cellphone locators weren't precise enough to require a search warrant.


The magistrate rebellion prompted changes in some jurisdictions. U.S. Attorneys in Los Angeles, for example, agreed to obtain search warrants for cellphone location information in federal cases.


The Justice Department recommended that prosecutors obtain search warrants when tracking phones using such "precise" technology as GPS or multiple cellphone towers, according to documents dated in 2007 obtained by the American Civil Liberties Union in a freedom-of-information request. The department continued to argue that less precise tracking of phones didn't require a warrant.


Interesting sleight of hand by the government in not having to show probable cause, if you ask me. Bets are off on how these justices handle this one.

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The other case this week that caught my eye was the justice's rebuke of the New Orleans District Attorney. I believe that this case involved Harry Connick Jr.'s dad, the then New Orleans D.A. They suppressed exculpatory evidence from the defense that could have cleared a criminal defendant in a murder trial.

Assistant D.A. Donna Andrieu tried to double down this week. Judge Sotomayor referenced the fact that the office had been continually cited for violating the 1963 decision Brady v. Maryland, a decision that requires prosecutors to turn over favorable evidence  to the defense. In the current case, Smith v. Cain, No.10 -8145, a man was convicted solely on testimony of a witness with no prints, DNA or other physical evidence. The witness said made a lot of conflicting statements to the police, which were kept from the defendant Smith's lawyers. In one of these statements, the witness said that he could not identify the assailants.

Andrieu said that the failure to turn over the statements to the defense did not violate the law because the jury would have discounted them. Quite prescient. The justices were reportedly not impressed.