Diaz and the Government We Deserve

The California Supreme Court doesn't think there is any real difference between a crumpled up cigarette package, the clothing on your back or your cell phone: All three are intimately associated with you. Hence, should you be arrested, police officers can search all three items under an exception to the Fourth Amendment's warrant requirement known as "search incident to arrest." A majority of the elected high court in California so ruled this week in People v. Diaz. The ruling reminds me once again that we get the government we deserved.

California from time to time tries to opt out of the republic. With an economy larger than that of many third world countries, the state's efforts to go its own way is perhaps understandable. Not long ago, California voters approved something known as Proposition 8, a so-called "truth in Evidence" rule that prohibits courts from refusing to use relevant evidence in criminal trials on the grounds that the evidence was unlawfully obtained. The people of the Republic of California are prepared to forgive police officers their errors so long as the state gets tough on crime. All that stands in the way of making Proposition 8 more than the wet dream of the police state is the Fourth Amendment to the United States Constitution. Suppression remains a viable remedy to unlawful police activity.

The Diaz decision is not a frontal assault on the Fourth Amendment. It is something more dangerous, and more insidious: By expanding the scope of an exception to the requirement that police officers get a warrant before search our papers and effects, the high court engaged in the sort of judicial activism that neuters a key component of the Bill of Rights. Shame on Justices Chin, Kennard, Baxter, Corrigan and George.

A police informant was wired up when he bought a small amount of Ecstacy from Gregory Diaz. Police listened to the tape, and, moments after the sale was completed, arrested Diaz. The defendant lied to police about selling drugs at the time of his arrest. An officer looked in the text messages stored in his cell phone, and confronted Diaz with what appeared to be an incriminating message. Diaz then confessed. At the trial-court level, his lawyer sought to suppress both the evidence gathered from Diaz's cellphone and his confession. The trial court refused to permit suppression, so Mr. DIaz entered a guilty plea, and took the appeal that found its way to the California SUpreme Court.

There search incident to arrest exception to the warrant requirement recognizes that officers making an arrest may need to take steps to assure their own safety, or to secure evidence that might easily be destroyed. The United States Supreme Court gives officers a limited right to search an area within an arrestee's immediate control. Evolving case law has defined the scope of the area permissibly searched to be that intimately associated with the person of the arrestee: thus, a crumbled cigarette package in a person's pocket at the time of arrest can be searched; so can the clothing on his back. California now holds that a cellphone, and all the information within it, is so intimately associated with a person that it, too, can be searched.

This is a specious and threadbare decision devoid of any meaningful conception of the need to limit the police power of the state. It is what one would expect of elected justices in a state whose citizens think the end of combatting crime justifies the means. But this sort of Proposition 8-type thinking should have no role in our federal jurisprudence. I suspect the Diaz decision will find its way to the United States Supreme Court, the final arbiter on just what the Fourth Amendment does and does not require.

Of course, there is no telling what the federal Supreme Court will make of this case. I fear it will endorse the California court's conservative judicial activism by blessing the expansion of this exception to the requirement that police officers get a warrant before searching our papers and effects. Indeed, I fear far more.

The seminal case regarding what limits are to be placed on police officers conducting searches arose in response to the search of a now-antiquated piece of technology: the pay phone situated in a phone booth. In the Katz decision, the Court held that in order for the Fourth Amendment to apply, a person had to assert a right to privacy that was both honestly held, and one that the rest of society was prepared to respect. Recall that the Fourth Amendment does not bar all searches, only unreasonable searches. In the case of phone booths, the court held there was no expectation of privacy society as a whole was prepared to respect, no matter what an individual caller expected. As a result, listening devices could intercept pay phone calls without a warrant. In that case, the person whose calls were listened to was not arrested before the eavesdropping. The Court simply said there was no expectation of privacy, hence the government could listen in to anyone's pay phone conversations. 

It would be an easy matter to apply this sort of reasoning to cell phones, and I fear the Court may tilt in that direction when it decides Diaz. The Court does not, however, typically decide more than it needs to in a decision. It may well limit its ruling in Diaz by resort to the silent rule of interpretation known as "the heinous crime exception" to the Bill of Rights. This doctrine generally holds that it is just fine and dandy to screw the accused. 

Diaz is bad law. I fear it may well be bad law about to get worse when the case makes its way to Washington. Nowhere is the specious nonsense about judicial activism spouted by the right more apparent than in the context of the Fourth Amendment. When conservatives read the Bill of Rights in such a manner as to render moot fundamental protections against government abuse of power few protest. That's because we don't care what happens to the accused. We don't care until we or a loved one are accused. Crime is something that happens to others. Or so it seems. I wonder how many of you want the government rummaging through your cell phone or eavesdropping on your calls?


The State of the Federal Courts, 2010 Edition

Reading Chief Justice John G. Roberts call for an end to partisanship in the selection of federal judges felt alot like watching professional football players sing the national anthem before a game: For a brief moment, it's all peace and unity. Once the whisle blows, expect the hitting to be hard, fast and furious. The chief's singing of judicial Kumbaya before the New Year began was hardly persuasive. But for the machinations of the right, he wouldn't be sitting where he is today. 

"Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes," he wrote in his year-end press release. "This has created acute difficulties for some judicial districts."

The selection of judges has become a political game. Legal interest groups have transformed the process into  jurisprudential karayoke, with nominees required and expected to mouth just the right platitudes in just the right way to win the approval of the Senate Judiciary Committee. As a result, all candidates have a tendency to look depressingly similar. All are graduates of stellar law schools. All have served clerkships to either Supreme Court justices or influential appellate court judges. They have advised governments, worked in white-shoe firms, and lectured from some of the finest lecterns in the world. They are a privileged lot by training and experience. While a few, Sonya Sotomayor and Clarence Thomas spring to mind, have known the sort of chaos that poverty brings, most are solidly middle and upper-middle class. The current court looks like a bastion of professional privilege.

President Barack Obama did nothing to deliver the change he promised in his first two appointments to the Supreme Court. Justice Sotomayor served for decades as a federal judge before ascending to the high court. Although she worked briefly as a prosecutor in Manhattan, she spent most of her career wielding a gavel. She was a safe and predictable appointment.

Elena Kagan, by contrast, was a stranger to the courtroom before her appointment. A former dean of the Harvard Law School, she seems as though she spent a professional lifetime grooming herself to be just the sort of cipher who might have a shot at getting a Supreme Court nomination. She, too, was a safe and predictable appointment.

Justice Roberts hails from the mordant pastures of a group of legal revolutionaries who set their sights on making judging political -- the Federalist Society. But for the dedication of a group of conservative radicals who plotted, cultiivated and noodled the transformation of judicial nominations into ideological contests, there would be no Antonin Scalia, Clarence Thomas, Samuel Alito or John Roberts on the high court. For the chief to call off the ideological dogs now that he is sitting atop the heap and the court is salted with four necromantic horseman sounds a little whiny.

But Roberts can walk the walk and reform if he chooses to do so. He should urge the president and the Senate to appoint a trial lawyer with actual courtroom experience representing ordinary people in disputes with the government or large corporations. Why not a public defender on the high court? Why not a plaintiff's lawyer? Why must every justice be schooled in the arts of serving power and institutional intertia?

Here's the opening paragraph of the statement Roberts should read the next time he presses the send button on his compter to spit out a press release:

"Our courts represent the last hope many Americans have for justice when their lives hang in the balance. Some people face long years of incarceration or death for crimes committed in an instant. Others see their lives undone by an accident or injury that occurred in the mere twinkling of an eye. We bid people to turn to the courts to resolve their conflicts. We say doing so is better than the resort to private acts of violence. But how are ordinary Americans to have confidence in a court system that operates as a world apart, and is staffed with a judiciary that is largely unschooled in the very sorts of conflicts taking place in the courts? We have ideologues sitting in seats that require judgment and justice, not rigid and formulaic doctrine. I urge the president and the Senate to bring us more trial lawyers, men and women whose acquaintance with sorrow and grief comes not from reading briefs in the safety of appellate chambers. Bring us justices who have seen tears in a courtroom, and on whose shoulders the forgotten and damned have leaned."

Is asking for a trial lawyer on the high court requesting too much? It appears as though the trial courts are busier than ever. At the end of the 2010 report, the chief noted that filings in the federal court increased last year. Civil filings in the trial courts increased two percent, to 282,895. The chief did not report what percentage of those cases actually went to trial: I suspect the number of cases actually tried to a verdict before a jury declined. Is an activist judiciary keeping the people from deciding cases at trial? And the number of those accused of crimes by the federal government reached an all-time high: there were 78,428 prosecutions initiated in 2010, targeting 100,366 defendants. 

Having a justice who has actually spent time in the well of a courtroom litigating cases might knock some the doctrinal silliness out of court opinions, which grow longer and longer each year. 

I know. I am a dreamer. But so are the men and women who turn to the courts for relief. They dream of justice applied without regard to person or party.


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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