The rule is: 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 

The current debate… how do we apply this rule, this so called Fourth Amendment, to the virtual world?  Orin “The Same As We Do Everywhere Else” Kerr and Scott “Have You Seen Everywhere Else Lately” Greenfield get into a bit of a kerfuffle over in the comment section at Simple Justice: 

Kerr:  It seems to me that you see the choice as being between (a) your personal fantasy of what the Fourth Amendment should be or (b) a virtual version of what the Fourth Amendment is in the physical world. You then lament that if the choice is (b), because you don’t like the Fourth Amendment we have now… 

Greenfield:  And what’s wrong with my wanting my personal fantasy of the Fourth Amendment?  The state of the Fourth is horrific, with a general rule that is observed only as lip service prefacing a million exceptions.  My personal fantasy is to return to the rule.  My personal fantasy is to not perpetuate an exception for everything…  

To be fair, I’ll admit to oversimplifying Kerr’s position, and you can read every detail in his law review article.  But it got me thinking about exceptions.  How many exceptions can you have, before you no longer have a rule?  Here are a few, and that means in relation to how many there are total, just a few… 

The Terry frisk(Terry v. Ohio) – no mere hunches allowed, police must have specific and articulable facts, and inferences from those facts, that lead them to believe that “criminal activity may be afoot”.  Seems reasonable, and it’s that damned adjective “unreasonable” that causes all the problems.  Nothing unreasonable allowed, so as long as 5 out of 9 think it’s not unreasonable, then it’s OK. 

Terry was for folks walking the streets, but stopping a car is like stopping someone on the street, so we’ll extend Terry to traffic stops.  And since it’s OK to arrest someone for a traffic violation(Atwater v. City of Lago Vista) the police should then be able to search every car incident to arrest.  But wait!  In less than one percent of cases, they won’t have cause to search incident to arrest, see Gant v. Arizona.  But as long as they have reason to tow the car (the other 99.99%) they have to do a full inventory of the vehicle, you know, so you don’t falsely accuse them of taking your stuff. 

As long as we’re driving, how about checkpoints?  You know, cops pulling everyone over, with no observed wrong doing?  Well, DWI is bad, so there’s a bad guy exception for that (Michigan v Sitz), and DWI plus death is really bad, so there’s an extra extra exception for that (Illinois v. Lidster), and since you have to check everyone coming into the country, may as well throw in an immigration checkpoint exception away from the border too(United States v. Martinez-Fuerte). 

There are also plain view, and open fields, and exigent circumstance exceptions.  Wait.  That last one’s too important for a mere fly-by mention.  “Exigent circumstances” means if the police think it’s an emergency, then they just might not have time for that old warrant requirement, and we’re not going to make them get one. 

Of course, sometimes they actually do get a search warrant, which a judge reviews and signs, but even if they make some mistakes along the way, SCOTUS may just create a good faith exception (U.S. v. Leon), which could then end up being the exception that swallows the rule. 

If the evidence is obtained illegally, what next?  Well the District Attorney can still use it in front of the Grand Jury(United States v. Calandra) because we don’t want to interfere with the effective discharge of their duties.  And if they can show they would (might) have gotten the evidence anyway, then the inevitable discovery doctrine will justify its admission(Segura v. U.S.;Nix v. Williams). 

Enough.  I haven’t covered the half of it, but by now you get the point.  I’ve weighed in before on the Kerr/Greenfield digital divide, and won’t repeat myself here. But let me ask the question one more time… 

How many exceptions does it take before you no longer have a default rule?

It’s not a secret who I am.

The so-called “Locke” and “Ishmael” and perhaps sometimes “Publius” who post here, they would be Clark Kent and Peter Parker, hiding their true selves behind a cloak of anonymity.*  But click on Contributors, and you’ll find that I, Jeff Gamso, am Quixote. Which raises the question: If I’m not interested in being anonymous, why the hell am I not, as Norm Pattis did earlier today, posting under my own name?

Consider it an experiment.

As me, I fret and complain and carry on about injustice and indecency. I carp. I’m crabby. (I’m not Greenfield, but then nobody even within cab distance of sane is that crabby.) And while I may tilt at windmills (you can see that I’m getting to the Quixote part now), it’s always with the expectation that they will grab my lance and hurl me into the next county.

But Don Quixote wasn’t like that. In his madness (and he was mad, or so society understood him to be) he believed not merely that what he was doing was right and virtuous and noble but that it was likely to be successful. He wasn’t just a mad knight. He was a great knight. He didn’t think he was tilting at windmills, but if he had, he would have been sure that he would prevail (hence, the stupefaction when he did not).

I opened my first law office in 1988.

The office was a room in what had once been a rectory.  The church had sold the building, and the owner converted it into apartments.   A couple of years before I moved in, the apartments were turned into offices.  Each of the offices had small reminders of what had once been.  Mine was a single room – with a full bath that had been installed when the room was made an apartment.  And the bathroom had a stained-glass window, hearkening back to its time as a rectory.

I furnished the office with a new desk chair; a used, battered client chair; a typewriter stand on which I put a CP/M computer for processing words; a fifty or sixty year old file cabinet; a cheap, metal, assemble-it-yourself bookcase; and the huge cardboard box in which the desk chair had come.  Turned on its side, the box served as my desk for a couple of weeks: until the used desk I bought for $5.00 was delivered.  For decoration, I had a wall clock, a framed print of a Nicole Hollander cartoon making fun of Ed Meese, and a replica of the Maltese Falcon.

The chair, the typewriter stand, the CP/M computer, the desk, and of course the box are all gone now.  Lost to the years and the move from Texas to Ohio.  I still have the clock, the print, and the Falcon though. I have the clock still because it continues to work and you can always use a wall clock. I have the print because it was a gift and its fun and I’ve never had my diplomas or bar admissions framed and you’ve got to hang something on the walls (besides a clock). And I have the falcon because it’s the Maltese Falcon.

The stuff that dreams are made of.

And if you think about it, that’s much of what we do.

Most of the time, the facts are not good for us. The law is not good for us. The judge is not good for us.

But we weave a story.  At trial it’s mostly not through our own witnesses but through cross-examination – and then tie it up and offer it to the jury or the judge as a tale of Vindictive Prosecutor or Cops Gone Wild or The Lying Snitch or Blind Witnesses or Unreliable Lab Work or SODDI or Self-Defense or even, once in a while, Alibi. On Appeal it’s mostly about Judges Going Off the Reservation. In habeas, it’s Trial Counsel Cock-ups and Prosecutor’s Hiding Evidence.

Sometimes, often even, it’s true. But truth isn’t worth a penny if we can’t sell it.

We must be Quixote, must undertake the dream. To sell it, to beat the windmill, we have to believe.

So here, I adopt the persona.

We’ll see how it works out.  I’m not optimistic that I can be some other version of myself here, but – Oh, wait, yes I can.

—————-
*Blonde Justice, who also apparently joined this gang, is in a different category since she is permanently anonymous, existing in the blogosphere (so far as we know) solely under an alias. She’s not hiding anything new here. (Actually, thus far she isn’t here at all, but that’s a separate issue.)

I was more than a little surprised when the invitation came in to join this page.  In general, I don’t play well with others. For reasons having everything to do with a tender psyche, I am most often a loner.  The instinct to attack and provoke is one I indulge too often. So I am not sure what to make of the decision to take the plunge here.

But I am here. Why?

An opinion arrived in the mail the other day. I  won a case involving potential discipline of a lawyer who worked as retained counsel for Allstate. The fellow is much hated by the plaintiffs’ bar.  It felt good to oppose the self-righteous. It always does.

I feel at home on the away side of the “v.” This recent decision  reminded me of the time I represented an unpopular prosecutor who was accused of tampering with a witness. Fellow members of the criminal defense bar were incredulous. How could I represent such a man!?

I’ve thought about how I make decisions on whom to represent for a long time, and I recently came to peace about it. I suppose this is as good a topic as any through which to introduce myself to readers of this page.

I am persuaded that any time a group of folks get together some version of orthodoxy will arise. Orthodox simply means straight opinion. It is the group or party line, that collection of beliefs, mores and rules held by the majority. Orthodoxy most often becomes binding.

I prefer standing by the side of the ostracized party, whether it be in the criminal courts or in the courts of public opinion. Whether the group is right of wrong in any cosmic sense matters not all to me. What matters is the right to breathe free and unencumbered by visions of the good imposed from without. A group is a very, very dangerous thing: It takes but little to energize folks into a mob.

So I joyfully represent those accused of all sorts of crimes and transgressions, whether they be folks with long records, or police officers and prosecutors. The best thing about the criminal law, it seems to me, is the hellbent struggle to make sure that rules of law are fully alive for the least among us. No one is simply the sum of their worst moments.

So there you have it. I am here. And I haven’t even picked a fight yet, although, with so many distinguised colleagues sharing this forum, odds are I will find some orthodox windmill at which to tilt. It’s just a matter of time.

Not all wrongs should be criminalized.  To break that down a little further, an intentional act can be immoral, unethical, shameful, even wicked or evil, at least if you believe in those last two concepts; yet it may be unwise to have the government threaten to incarcerate those who commit it. 

What’s my point?  That perhaps there are wrongs that cause no harm except to the wrong-doer himself, and therefore aren’t properly the province of the penal code?  Nope.  An act can even cause harm to others, be deliberate, and fit some or all of the synonyms for “bad” listed above, and still not be criminalized. 

Let me throw out a proposition to test my thesis: 

It is a truth universally acknowledged that a man who sleeps with his wife’s sister is a douchebag. 

Everyone would agree with the proposition, no argument.  Even those who violate this principle would agree that the rule is generally true, but apparently somehow theirs is a special case.  Their wife is a shrew who drove them into the arms of the sister; maybe the wife is in a coma, needs care 24/7 and besides he always knew he loved the sister more, and you can’t stop true love, blah blah blah.  The self preservation instinct will kick in and offer up an excuse. 

But they wouldn’t disagree with the general statement.  (This brings to mind another rule of life:  Some things that are not-OK if you do them, are OK if I do them.  But I digress.)  

So it’s a wrong, an immoral act.  Does it cause harm?  Of course.  You have broken your promise to your wife, shattered her trust in you and probably made it more difficult for her to trust others.  You have irrevocably changed your wife’s sisterly relationship, and if it needs stating, for the worse.  This injures not only your wife but your new lover.  Many would even say you harmed yourself, but if you don’t see that, I can’t explain it. 

Thus we have a guilty act and a guilty mind, and at least one victim, perhaps as many as three.  But no one in their right mind believes this should be criminalized.  Even nations that we Americans often prejudge as supremely unenlightened have acknowledged that not all wrongs must be outlawed. 

How then do we explain the felonization of so many malum prohibitum offenses?  Well, some say smugly, the law is the law and must be respected.  Don’t do the crime if you can’t do the time.  

May I (humbly) suggest that only a person with a swelled head could be so cavalier.