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?

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.

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.   Read the full article »

It wasn’t recent, more like 10+ years ago, and almost certainly, given how often it happens, not actually the first time I walked a factually innocent client in front of a judge for a guilty plea.  But it’s the one I remember best.

Short version of the facts via the police report:  My client went to a car dealership and told them he was the soon-to-be-wealthy nephew of a prominent local.  In a few days, on his twenty first birthday, he was to inherit a few million, and he planned on deciding over the next few days which type of nice new car he should reward himself with.  None of this was true, my client was just as broke as the next guy.

But, the dealership lets him drive off in a new car, to test drive it over the weekend.  And he brought it back exactly when he was supposed to, not quite pristine, due to a minor fender bender while it was in his care, custody and control.  Of course, you can’t spit on a car without doing at least $500 in damage, and it’s about that time the dealer realizes: not only is my client not going to buy this or any other car, he can’t pay for the necessary repairs. Read the full article »