Saturday, March 14, 2009

Law School Hypo

Sometimes in practice we come across situations and cases that really remind me of my law school hypos. Here is one:

Police officers are driving down the street patrolling the neighborhood and see a brown Honda Accord exiting a parking lot. As they later write in their report, because of many stolen Hondas in the surrounding area, they run the vehicle license plate for any pending warrants. The license plate search reveals indeed a pending warrant for the owner. So, they stop the vehicle, ask the driver for ID. While talking to the driver, they also ask for ID from the two passengers for no stated reason. Sure enough one of the passengers also apparently had three outstanding warrants. So, both the driver and the passenger are transported to jail and obviously arrested for warrants. Once they are placed in the holding cell to be booked, an officer observs the driver push an item towards a far corner of the holding cell with her foot. The officer recovers the item which later is confirmed to be rock cocaine. The other defendant (the passenger) is searched incident to her arrest and is found to be carrying three small pieces of rock cocaine hidden in the waistband.

Then law school professor would simply ask to discuss. My concern confronting this fact pattern was whether there was any Fourth Amendment violation.

Possible answer: Yes.

The fundamental principle of the Fourth Amendment is that the individual has reasonable expectation of privacy. Katz. v. U.S. This means, freedom from unreasonable searches and seizures. When the police stop a vehicle, by definition the driver is not free to leave. This is a temporary detention within the meaning of the Fourth Amendment and must comply with the standard laid down in Terry v. Ohio. See Whren v. U.S. In particular, when officers detain in relation to crime and investigation, they must have a "particularized and objective basis for suspecting the particular person stopped of criminal activity." U.S. v. Cortez.

"A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in the light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." People v. Souza.

The problem I have with the facts is that there was no particularized and objective basis to believe that the vehicle of the defendant was stolen. The officers wrote in the report in a very general statement that they searched the license plate of the vehicle only because there were a lot of stolen Hondas in that area and that vehicle was a Honda. The very fact that they search the license plate of that vehicle without any articulable suspicion is an intrusion into privacy of that individual. On the other hand, the U.S. Supreme Court has in fact said in one of the cases that you have less expectation of privacy in your car than at home for understandable reasons. But things must be reasonable. Do you expect the police to run your license plate every time they see you driving in the streets?

So, I believe an argument can be made that even though the driver had pending warrants, the stop is not lawful because the officers had no reason to check the license plate of this particular car.

If so, the entire arrest is no longer lawful because of the unlawful detention.

Second, even if they are asking for ID of the driver, what causes them to ask for the ID of the passengers. You can ask for the Identification of driver if stopped for a valid purpose, including traffic stops. But I see no reason to ask also for the ID of the passengers. So, at this point the passenger has the right to challenge the lawfulness of her detention too. What particularized suspicion did officers have when asked for ID from passengers? Are you expecting the police to ask for your ID when you are having a ride in a friend's car? Just think about it.

A lot of these things are instinctively wrong. It requires case by case analysis. But coerciveness of these encounters is apparent. Police exerting authority over people in ways that our Constitution should and cannot endure. That is the whole purpose of the rights. They are not just symbolic written words. They should really function in real life to protect the individual from the police. It is not about the form, but substance. If something is wrong, it cannot be made right. Unfortunately, individuals lose the ability to exercise their rights because these things get approved in courts. They also get used to constant submission to authority of police and cannot imagine anything else. A lot of times, I get blank faces from my clients when I tell them about their rights under the Fourth Amendment, Fifth Amendment, Sixth Amendment. They lose their appreciation of these rights because in the streets the rules are quite different... It is like Ivy Tower and jungles.

The U.S. Supreme Court made these rules for all 'streets', no exceptions!

Sunday, March 8, 2009

Happy International Women's Day!

It is very interesting that this day is not celebrated as a national holiday in the United States. It seems paradoxical that in a country with strong liberal ideals, the International Women's Day does not receive such attention. Well, perhaps it is not that paradoxical. After all, we still have a high degree of sexism. I am still gasping for air after watching what happened to Hillary Clinton under the attacks of virulent sexism. For us, women lawyers, it is still a challenge to practice in courts housed by males as judges and lawyers. Women are still treated paternalistically and for some reason there is still the expectation that they have achieved something not through their brain, but through 'bed' (crudely speaking). Quite too often they are not treated seriously and when they become aggressive, they are punished. Do not tell me anything new, I have been punished many times and many ways. And yes, I have refused to achieve goals through 'bed', believe it or not. That is why, I am a solo practitioner now. Unfortunately, some women have the image of Playboy girls and that sets the expectations of men about everyone else. In some professions such as legal, 'Playboy girl' image is simply out of place. I am sorry, that is the truth. You do not have to lose your femininity by being a lawyer, but there is a certain line...

Human nature does not change from country to country. But it is really ironic that Russia has been celebrating this Day since the beginning of the 20th century, when socialism took its roots there. In fact, this day really is an outspring of socialism and the first major parade on this day happened in Russia. Russia is a country with no liberal democratic institutions and is currently being ruled by a 'dictator', correct? Yet, women do get flowers on this day and do get a national appreciation day. Of course, that is not to say that women have achieved more in Russia. By no means. Yet, symbolism matters and no woman would shy away from recognition and flowers. I call that 'culture.'

Unfortunately, because of the 'culture' in the United States, I always had some difficulties buying flowers for my own professors. For some reason, I felt awkward and afraid that the symbolic gesture would not be acceptable... True enough, sometimes it was not. Very sad. So I stopped buying flowers except for my own Mother.

Happy International Women's Day!

Watch the video on the history behind the Day

Click here for Tamara Gverdtsiteli's Dedication to Women