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?

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.

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.  

Class C Failure to Signal Intent charge, pro se (unrepresented) defendant, and one witness: the citing cop.  The officer testified that he saw the defendant change lanes without using his signal.  On cross, the defendant grilled the officer about whether or not it was possible that he (the cop) had taken his eyes off of his(the defendant’s) vehicle, and perhaps this was when the signal came.  The officer declined to agree that this was even a remote possibility. 

The defendant didn’t testify, but when his turn came for closing, he asked the judge, “Can’t I tell them that I signaled?  It’s obvious from my pleading Not Guilty that I’m saying I used my turn signal.”  The judge simply replied no. 

The jury retires.  And here’s where nearly every worst fear a criminal defense lawyer has about deliberations is confirmed by my wife.  Among other matters, the jury discussed the following issues: 

Some defendants set cases for trial because they are hoping the cop won’t show up. 

While this is true, it’s obviously not a legitimate (charge based) starting point for discussions about guilt/innocence.  My notes are sketchy on the next point, but they seem to confirm that the conversation turned to “we only heard one side of the story” ergo, we gotta go with that.  Quickly followed by a “why didn’t he just testify” / “if he had said he used his signal, we’d have something” debate. 

Next comes my favorite: 

I thought using your turn signal was “recommended”.  I didn’t know it was against the law. 

Perhaps this is the prosecutor’s fear, rather than mine.  Essentially, there was a jury nullification argument.  My wife didn’t start it, but she told me that she chimed in, something to the effect of, if you’re turning onto a street then yes it’s a law, but if you’re just changing lanes, it’s just something you’re supposed to do. 

“Recommended”.  I had a discussion with her at lunch about whether or not this was merely a recommendation, or an actual honest-to-goodness traffic violation.  And remember, the trial was finished before the waiter brought us the queso and chips.  She made it through the whole thing, but was still unsure that this was really, oh I don’t know, what would you call it, a “law”? 

The “recommended” discussion is filed under “There but for the grace of God, go I”; I suppose that explains why it’s my favorite part.  But moving forward to the punch line, someone else suggests: 

I feel sorry for him, but he needs to learn a lesson, and if we find him Not Guilty, he won’t learn a lesson. 

Now we’re in prosecutorial dream land deliberations.  Let’s get those jurors focused on what might happen (gasp!) if a guilty defendant didn’t learn his lesson.  Skip all of that BRD nonsense about the state proving their case, and concentrate on avoiding the worst of all possibilities: an unpunished guilty man.  Doubt my thesis that prosecutors often have similar concerns?  How about this comment from a recent D.A. Confidential post about DWIs:           

What I do know is that many felony DWI-ers get away with acquittals or having their cases reduced to misdemeanors, which seems like positive reinforcement for their behavior.

That’s right, a not guilty verdict is simply a guilty man getting away with it.  Can’t have that.  Now let’s talk punishment (and back to my notes): 

If we’re not sure, we could fine him $20. 

Ahhhhh, the compromise verdict.  Not a disaster when it comes to traffic offenses, but truly life changing when you’re talking about a felony.  My wife gets kudos at this point for saying that she knows we (the jury) are not supposed to do that, to compromise on whether or not he is guilty, but balance it out by giving low punishment. 

She didn’t want to tell them she “knew” that from her CDL husband, so she told them she knew that because…….. 

…she saw it once on Law and Order. 

Awesome.  Proof positive that Earle Stanley Gardner, et al., are irremovable from our jury rooms.  (And remember, at least she was right, not supposed to have compromise verdicts.) 

So how did it end up?  Guilty, and a $20 fine.

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.

My client waited patiently while the police arrived and decided to arrest him for theft.  In this case, the value of the car being over $20,000 (but less than 100K), he was charged with third degree felony theft.  Although this was his first arrest for anything, ever, he had just moved into town in the last month, and couldn’t qualify for a get out of jail free personal bond.  (The local pretrial services office has a less-than-6-months-residency/no PR rule.)

I was appointed to represent this client while he was still in jail, and it didn’t take very long for even a baby lawyer like me to realize the state had a huge hole in their case: my client brought the car back.

It’s not the purpose of this post to discuss all the intricacies involved, but suffice it to say that Texas law defines theft as unlawfully appropriating property with intent to deprive; and bringing the car back goes a long way towards negating intent to deprive.  A more nuanced prosecutorial view might be that my client committed the state jail level offense of unauthorized use of a motor vehicle (operating the car without effective consent; consent not effective if induced by deception).

And the fairest thing for a prosecutor to do – motto: our job is not to convict but to seek justice – would be to realize that the week or two in the pokey my client had already spent waiting for a first court date was more than enough punishment for what was, essentially, teenage hijinks.  (Perhaps the salesman should be charged with felony stupidity for buying my client’s bullshit?)

So here’s the extremely common part of the story.  A defendant has done something “wrong”, has been arrested and can’t get out of jail, and his lawyer is required to communicate any offer from the prosecutor, no matter how unreasonable it might be.  In this case, the prosecutor offered probation, which was his quickest way out of jail.  He wanted to take it immediately and I managed to convince him that was not in his best long term interest.  The case was reset for another week, while I did more research, brought case law to the prosecutor, even re-approached the judge to revisit the “No” recommendation for personal bond.  All to no avail.

The week came and went, the prosecutor was unmoved (maybe there was a reduction in the term of probation; I don’t remember) and on the second setting, my client insisted on taking the plea.  After a presentence investigation, which required another week or so in jail, he was let out on probation.

I had begged him to let me set the case for trial; criminal defense lawyers dream of factual scenarios this good.  But when I dutifully explained the length of time he would wait to have that day in court, to test the state’s evidence beyond a reasonable doubt, and all that other constitutional nonsense, he balked.  (The answer would have been probably months, almost definitely less than a year; perhaps “only” a month if the State would agree to waive jury and have a bench trial.)

Plead to something you aren’t guilty of, just so you can get out of jail right now?  I would never do that, thinks most of the population.  Well, try a few days in jail, never mind a few weeks, before you are so certain.