Walk into criminal court some time to listen to closing arguments. Odds are you will hear the prosecution talk about holding the defendant accountable for his crimes. But who holds the government accountable when it errs?
Judges are extremely reluctant to do so.
Consider this week’s 5-3 decision by the U.S. Supreme Court in Utah v. Strieff. At issue was what consequences should follow when the government violates the Fourth Amendment’s prohibition against unreasonable searches and seizures in seizing evidence.
The facts of the case are simple enough.
A Salt Lake City narcotics detective was watching a local residence after an anonymous tipster called police to report drug activity. The officer saw folks make brief visits to the house. He stopped a man he saw leaving the house, briefly detaining the man, and asked the man what he was doing at the home.
After Mr. Strieff identified himself, the officer called in to his department to see if there were any warrants out for the man’s arrest. There was one. Mr. Strieff had a warrant involving a traffic offense. He was taken into custody and searched; in his pockets, the officer found methamphetamine and drug paraphernalia. He was charged with felonies.
So what? you say. He was guilty of a crime — he possessed illegal narcotics.
Not so fast.
There was no legal justification for the police officer to stop the man. Why should he then be searched, arrested and, as was the case here, ultimately convicted of a felony?
The exclusionary rule prohibits prosecutors from using illegally seized evidence against a defendant. Law-and-order types grouse that the Constitution is silent about this rule. It’s a creation of those dread creatures — judicial activists — who are bringing the country to ruin. Unlawfully seized evidence is, lawyers say, suppressed.
Mr. Strieff’s lawyer moved to suppress the evidence taken from his client. The Utah Supreme Court agreed with the defense, and the conviction was reversed — no evidence means no crime. Utah asked the United States Supreme Court to consider the case. This week, the highest court in the land said that, although the stop was illegal, the search was legal. Mr. Strieff’s conviction stands.
Let’s unpack this mess and learn a little about the Fourth Amendment.
In general terms, the government — that means state or federal law enforcement agents — cannot unreasonably search or seize a person. Warrantless searches and seizures are, the courts say, presumptively unreasonable.
There are, of course, exceptions to the warrant requirement. There are so many exceptions, criminal defense lawyers complain, that the Fourth Amendment is losing its bite — it’s a toothless smile, a mortician’s mask.
I doubt Salt Lake City was quaking in terror as a result of Mr. Strieff’s methamphetamine. But I suspect that all Salt Lake City residents are now more likely to be the subject of an illegal stop by police officers as a result of the Supreme Court’s decision.
Police officers cannot stop folks without reason. The law speaks in terms of standards — the amount of information required to trigger action. To stop a person on the street and question him, an officer needs an “articulable suspicion” that the person was, or is, involved in criminal conduct. The standard is low — it involves no more than being able to put into words the reasons for suspicion.
Such a stop is called a “Terry stop,” the name arising from a case involving the stop of a man named Mr. Terry who challenged a brief detention by officers after he was observed behaving in a suspicious manner outside an Ohio jewelry store.
In Mr. Strieff’s case, the parties agreed there was no articulable suspicion to stop him. He was seen leaving his home but not entering it. There is no telling how long he was in the home. He may not have fit the profile of suspected drug purchasers.
One of the law’s best-known metaphors arises in the context of suppressing evidence seized in violation of the Fourth Amendment. The government cannot use the “fruit of a poisonous tree” against a defendant. In other words, evidence the government can only have obtained by way of illegal conduct is off bounds — it is fruit plucked from infirmity.
Why this exclusionary rule?
Police officers should be accountable too. The only way to assure that police officers follow the rule is to attach consequences to violation of the law. If their job is to enforce the law, it only makes sense to make them obey it, or so the theory goes.
The trouble is that those in love with the crime-control theory of criminal justice care more about the ends than the means. We must detect, arrest, convict and incarcerate those who commit crimes. If lawmen break the law to do so, that’s the price we must pay to get the bad guys.
Hence the courts chatter about balancing the social cost of suppressing evidence against the value of assuring the cops obey the law. When judges start talking about balancing tests, hide your wallet — your pocket is about to be picked.
In Mr. Strieff’s case, the court reasoned that because the warrant for his arrest predated his unlawful stop, there was no suggestion he was stopped as a pretext for arresting him.
The cop broke the law, all right. But he didn’t do so for an evil motive. Once the officer learned of the warrant, it was his duty to arrest.
What about the search of Mr. Streiff’s pockets? One exception to the warrant requirement is a search incident to arrest: The court held it was lawful to pick the defendant’s pocket.
The cop broke the law. He stopped a man without legal justification or excuse. The court then bent the rules to justify what followed.
To what end? We’re a better society because police can break the law — trample on a fundamental right — with impunity?
We get the government we deserve. When the courts permit the police to break the law with impunity, respect for the law suffers. It is that simple.
Experienced litigators learn the hard way that some institutions regard themselves as too big to comply with the humdrum requirements of the law. I've seen large institutions simply ignore a subpoena, not even bothering to show up as directed. Yale University is notorious for doing this; so are some of the state's larger hospitals.
Judges are reluctant for reasons I do not understand to issue capias warrants requiring these institutions to appear in court. Only little people get arrested, taken into custody, and hauled into court for ignoring a subpoena.
Add Facebook to the list of contemnors.
Only this time, there's more than a subpoena; there's a court order in addition to the subpoena. Next comes a show cause hearings.
At issue is a subpoena initially served on Facebook's agent for service by the public defender's office in New Britain. The subpoena sought records the defense deems necessary in a criminal case, records of communications posted on Facebook.
Facebook does business in Connecticut. It has a registered agent for service. A marshal served Facebook, and the company responded by way of a letter from a lawyer on the West Coast listing all the reasons the company thought it didn't have to comply.
Nonlawyers and nonlitigators can be forgiven for thinking a letter would do. But a subpoena is a court order. All Connecticut lawyers are also commissioners of the Superior Court, empowered with the right to issue such orders.
Folks receiving them don't have the right to say "never mind." If you want to contest a subpoena, you do so with a motion to quash, filed in court.
The public defender's office next asked the presiding judge to sign an order requiring Facebook to appear. When I took over the case, questions arose about whether the order had ever been served on Facebook, so I had a marshal serve Facebook's agent for service.
Facebook had a West Coast lawyer send another dismissive letter, listing the reasons why it would not comply with the subpoena. No motion to quash was filed. No one appeared for Facebook at the scheduled hearing.
I've filed a motion for a capias warrant for Mark Zuckerberg, Facebook's president. Someone has to be accountable at the company, right?
The court appears concerned less with the fact that Facebook ignored a subpoena sent by a commissioner of the Superior Court than it does with the fact that Facebook has ignored an order of a judge of the Superior Court.
One of the truly bizarre things about the Facebook correspondence is its claim that if the prosecution were to ask for material, it would be willing to turn it over. But it will not respond to a request for information from a defendant, even if the request comes from a public defender's office.
Say, what? Facebook is willing to assist the prosecution and not the defense?
I'll need more than a letter to satisfy me that this is lawful. I'd like to get a talking head from Facebook on the stand to explain this species of reasoning.
Social media is everywhere these days, linking strangers to one another and earning enormous profits from the business it does in every state. In criminal and civil cases, social media evidence is now necessary to protect the rights and interests of private parties. No company, no matter how large, ought to be able to do business in a state without being accountable to lawful process.
If Facebook refuses to respond to the order to show cause, I'll renew my claim for a capias warrant for Mr. Zuckerberg. He and his company have some explaining to do.
Read more: http://www.ctlawtribune.com/id=1202760274005/Norm-Pattis-Facebook-Lawyers-Thumb-Nose-at-Conn-Subpoena#ixzz4BwsJjYwx