Monday, August 25, 2014

Detention or arrest?

In the spectrum of police-civilian contacts, the demarcation between temporary detentions and arrests has been deliberately kept blurry and fact-based. This is important because a temporary detention requires only reasonable suspicion of criminal activity, while the arrest cannot be made without probable cause. In Terry v. Ohio, 392 U.S. 1, the U.S. Supreme Court carved out an exception to the requirement of probable cause for arrests, by creating a so-called concept of 'temporary detentions.' This gave a green light to the police to search individuals as long as they could articulate some semblance of suspicion of crime, but without having a full-blown probable cause for arrest. In Florida v. Royer (1983) 460 U.S. 491, the Court hastened to clarify and warn that police are limited in their activities during the temporary detention:
The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's **1326 suspicion in a short period of time. See, e.g., United States v. Brignoni-Ponce, 422 U.S., at 881–882, 95 S.Ct., at 2580–2581; Adams v. Williams, 407 U.S., at 146, 92 S.Ct., at 1923. It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.
In that case the U.S. Supreme Court held that the police exceeded the permissible limits of Terry detention when they asked the traveling defendant to accompany them to a small police room, retaining his ticket and driver's license, indicating in no way that he was free to depart.
The line is crossed not only when the police formally arrest a person but also when the officers use "means that approach the conditions of arrest." Florida v. Royer, supra, 460 U.S. 491, 499. It is a functional test, i.e. what were the actions of the police that under the totality of the circumstances imposed a greater restraint on liberty of the individual obviating the need for probable cause.

In a recent case the Ninth Circuit broadened the allowed limits of temporary detention by police, thereby chipping away from the Fourth Amendment rights.  In U.S. v. Edwards, that was decided on July 31, 2014, No. 13–50165, the Ninth Circuit held that the facts in question did not arise to an arrest requiring probable cause for the search of the defendant, but merely a temporary detention, supported with reasonable suspicion of criminal activity. There an anonymous 911 caller reported that a young black male was shooting at passing cars. The caller gave the general description of a black male in his 20s, wearing black/gray clothing and the location of the crime. The police were dispatched to the area within minutes, and observed a young black male, matching the general description of the suspect, walking 75 feet from the location of the reported crime with another male. Four officers with guns drawn detained both men. Both were ordered to kneel on the pavement, Edwards was then handcuffed while on his knees. Then he was ordered to stand up, and spread his legs. During the pat down of his clothing, the officer felt a hard object, which fell to the ground as he pulled on the pants. The object was a .22 caliber handgun. 

The Ninth Circuit reasoned that even though undoubtedly the police conduct was highly intrusive and aggressive in nature, it still did not amount to an arrest: "... pointing a weapon at a suspect and handcuffing him, or ordering him to lie on the ground, or placing him in a police car will not automatically convert an investigatory stop into an arrest that requires probable cause." The Court has also to look at the justification for the instrusiveness of the police methods and here the Ninth Circuit decided that the officers had reasonable fear for their safety in light of the caller's tip of an ongoing dangerous crime, i.e. shooting at passing cars. Thus the gravity of the reported crime in the eyes of the Ninth Circuit determined the permissible limits of the temporary detention. Somehow the Court missed, that the Fourth Amendment rights do not hinge upon the gravity of the offense and exist independent of the level of criminality of the offense. Even if the police had reasonable suspicion to detain the males, there was no real or perceived danger to the police officers by any of the actions of the young males at that moment. There was no evidence offered that the young men failed to cooperate or resisted the actions of the police or somehow eluded the detention. Furthermore, the Court did not even consider where other less intrusive methods were available to the police, for example, whether the circumstances warranted the need to order the men to kneel on the ground, and place handcuffs on them while on the ground.

In reliance on a recent U.S. Supreme Court decision in Navarette v. California,  see below, the Ninth Circuit also held that the anonymous caller's 911 tip had sufficient indicia of reliability to furnish the police with reasonable suspicion of criminal activity. U.S. v. Edwards, No. 13–50165. 

There goes the chipping away from the Fourth Amendment. 

Thursday, August 21, 2014

Racism and police state

The recent tragedy and ensuing police crackdown of protesters in Ferguson, Mo, have created a painful flashback and deja vu feelings confirming our deep-seated fears that racism in America is far from in subsidence, but actually in a rise. As innocent black kids get intimidated, harassed, jailed and murdered at the hands of our militaristic police, stamped by silent imprimatur and complacence of official authorities, a looming question arises in the horizon, just what responsibility as a society we owe to the humanity. The world is watching as we as a nation, continuously declaring our moral superiority over the rest, condemning other nations and positioning ourselves as a superpower, are sinking in the worst human rights record of treatment of blacks and, have erected a huge domestic military arsenal, a police state, to perpetuate the status quo.

Call for action.

Thursday, June 26, 2014

Hands off my cell phone!

The U.S. Supreme Court's decision yesterday in Riley v. California and related United States v. Wurie, Nos. 13-132 and 13-212, has far-reaching consequences for all law enforcement activities and my clients. The decision that the police may not generally search a cell phone/smart phone without a warrant even after an arrest is far-sweeping because the police routinely search cell phones of detaines, arrestes, regardless of circumstances or any suspicion of crime. When for whatever reason you are detained by police, they take possession of your cell phone, they start intrusive search of all its contents immediately.

In one of my cases, client was stopped for a traffic violation. Then the police asked him to step outside and searched his car. They found marijuana in a jar. Despite the fact that client  displayed his medical marijuana card and was lawfully in possession of the marijuana, they detained him and took him to the station, pending further investigation. On route to the station, while in the police car, the client's phone was repeatedly ringing. The police officer, who had taken possession of his cell phone, answered the call, and a had brief conversation with the caller, impersonating the client. Based entirely on that one-minute phone conversation, client was charged with possession of marijuana for sale. I brought a motion to suppress the seizure and search of his car and the consequent actions of police in intruding upon the privacy of his cell phone, but my motion was denied.

This activity by police has become the order of the day. Routinely the police obtain evidence of crime by intrusive and warrantless searches of cell phones, smartphones, that carry all the intimate information of individuals. On a daily basis, the police detain and arrest individuals but then after search of cell phones they add draconian charges against them based entirely on the information they obtain from cell phones. Think about how much you carry in your cell phone and how you would feel if it gets into the hands of anyone else, not speaking of the government.

It is very rare that the United States Supreme Court issues a unanimous opinion. We are altogether accustomed to 5-4 decisions. But the idea that the government can have such absolute right to intrude upon your privacy stored in your cell phone has shocked even the most conservative of our Justices. Specifically, the Court legally and most appropriately limited the warrantless search incident to lawful arrest exception enunciated years ago in U.S. v. Robinson, 414 U.S. 218, (1973) and refused to extend it to cell phones. The court drew the distinction in the vast amount of private information stored in digital form in modern cell phones and the expectation of privacy drawn from it. The cigarette pack that was searched during a patdown in Robinson could not even come close to the amount of private data stored in smartphones. The balancing of the governmental legitimate interests-- officer safety and destruction of evidence-- with such high degree of privacy interests in a cell phone, tilted in favor of upholding the privacy rights. 

The Court simply noted that the government interests here are minimal in comparison with the privacy intrusion. First, digital data does not pose immediate safety risk to the officers to legitimate the need for search without a warrant. Second, ephemeral destruction of evidence through modern technology as a reason for warrantless search also did not convince the Justices, simply because there was no evidence presented to suggest that this is even common. Particularly because the cell phones taken into possession by police are secured and stored and not accessible to arrestees and any concerns regarding remote wiping and destruction of data can be resolved by other targeted methods rather than warrantless intrusion into the privacy of one's cell phone. Relying on Chimel v. California, 395 U.S. 752 (1969) the Court made a broad and swift ruling, reiterating the heightened privacy interests in modern cell phones. As Justice Roberts noted, "Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse." The storage capacity of modern cell phones permits individuals to carry all their lives in them, something they would never be able to do in a purse or a wallet. It is simply unbearable to permit the government to intrude upon such heightened expectation of privacy. "Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house..."

In short, the Court declined to extend the search incident to arrest exception to the warrant requirement for cell phones. Unless there are well-articulated exigent circumstances, which has been another exception for warrant requirement, the police must secure a separate warrant for search of your cell phone, even when you are lawfully arrested for a crime. In conclusion, Justice Roberts reaffirmed the Fourth Amendment principles by stating, "Modern cell phones are not just another technological convenience. With all they contain and all thay they may reveal, they hold for many Americans the 'privacies of life.' The fact that technology now allows the individual to carry such information in his hand does not make that information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple-- get a warrant."

The upshot is that the police will have to routinely seek a warrant before searching the contents of your cell phones. Certainly, they will have to articulate probable cause for the search in their affidavits before judges sign the warrants. Then it is up to your lawyer to traverse the search warrant and argue that the police concocted the probable cause for the search of your cell phone.

Hands off my cell phone!

Wednesday, April 23, 2014

"Freedom-destroying cocktail"

In a recent decision, Navarette v. California, 572 U.S. _ 2014, No. 12-9490, the US Supreme Court ruled that an anonymous tip from a 911 caller was sufficient to create reasonable suspicion of criminal activity of a driver and search of his vehicle was reasonable. The 911 caller reported that a Silver Ford 150 pick up truck had run her off the road. The caller also reported the location of the incident and the plate number of the truck. A few minutes later the CHP officers located a similar pick up truck further down the highway, stopped the vehicle without any further corroboration. As they were conducting a traffic stop, they smelled marijuana from the vehicle. The search ensued, with 30 pounds of marijuana discovered in the truck.

By distinguishing the landmark case on the topic, Florida v. J.L. (2000) 529 U.S. 266, the majority opinion held that the tip here had sufficient indicia of reliability to give reasonable suspicion to the officers that the driver was drunk. The caller’s account indicated she was an eyewitness to the incident, by providing the license plate number, the location and the model of the car. The Court also pointed out that the timeline of the events, the reported location of the incident by the caller and the officers’ spotting of the truck a few minutes later sufficiently corroborated the tip. The fact that the tipster used the 911 system also pointed to the reliability, since a false tipster would be aware of the tracking system and would not be willing to resort to false reporting.

The Court quickly dismissed the argument that even if the tip could be reliable, it might not have necessarily raised reasonable suspicion that the driver was actually drunk or perhaps the police could have further corroborated the observations of the tipster by following the vehicle before initiating the stop.

Justice Scalia (surprisingly) dissented with Justices Ginsburg, Sotomayor and Kagan, pointing out that this was a vivid departure of precedent, that anonymous tips must be corroborated before they form basis for reasonable suspicion of criminal activity. By noting that the tip would have qualified to be admitted neither as a ‘present sense impression’ nor an ‘excited utterance’, Justice Scalia pointed out that the question was not how the tipster could see this happening but whether what she claimed was true. Nothing corroborated the caller’s statements.

Furthermore, Scalia pointed out, “I fail to see how reasonable suspicion of a discrete instance of irregular or hazardous driving generates a reasonable suspicion of ongoing intoxicated driving. What proportion of the hundreds of thousands—perhaps millions—of careless, reckless, or intentional traffic violations committed each day is attributable to drunken drivers? I say 0.1 percent.” To allow the police to make traffic stop on the basis of uncorroborated and anonymous caller to catch .1 percentage of drunk drivers is an unjustifiable intrusion into Fourth Amendment rights or as Scalia called it, a two-part ‘freedom-destroying cocktail’.

He was further outraged with the fact that in the five minute observation of the truck before initiating the traffic stop, the CHP did not observe any suspicious driving. They had no personal corroboration of the bad driving alleged by the 911 caller. This fact alone should have quickly undermined the reliability of the tipper.

The upshot of this case is the continuing erosion of the Fourth Amendment principles. If you are a driver, you have no protection against anonymous 911 calls and the police are free to decide whether they will credit the caller and stop your car or not. You are at the mercy of law enforcement.

Tuesday, April 22, 2014

Ninety-nine years...

“Turks are coming!” This phrase has a soul-piercing, blood-chilling effect on every Armenian around the globe. The pantheon of Armenian ethnicity and nationhood is cloaked with heavy drips of blood. The development and unprecedented rise of Islam in the Middle East culminated in the victory of the Ottoman Turkey in 1453, with the final collapse of the Byzantine Empire. Constantinople (or Polis) was renamed Istanbul, and the Ottoman Turkey proved to be a ruthless empire of war and conquest. The fall of the Byzantine Empire was the historic doomsday of Armenians, the first nation to officially adopt Christianity as their religion. Art-loving, peaceful Armenians, similar in their heritage to the Greeks, were greatly overwhelmed in numbers by war-mongering Turks, who soon took over all of historic Armenian lands, by reducing Armenians to an ethnic minority residing in the Ottoman Empire and Eastern Armenia (current Armenia).

The seeds of fate were sown and ripened in the World War I, when Ottoman Turkey artfully used the excuse of war to resolve the pestering ‘Armenian question.’ As Armenian intellectuals residing in Turkey had co-existed with Turks and had risen in the ranks, they were lobbying for equal rights and recognition of freedom of religion and self-autonomy. This movement was internally coined as the ‘Armenian Question’ by the Ottoman government officials. It was a real thorn in their imperialistic goals of expansion, and conversion of all ethnicities to Islam. Armenians historically refused to convert to Islam and sought autonomy to be able to survive and maintain their language, culture, identity, religion.

 As World War I was waging in the background, the Ottoman officials masterminded a skillful and ‘brilliant’ resolution of the ‘Armenian Question.’ The plan was to forcefully remove and displace all Armenians residing in the empire, using any and all methods. This was understood by the executioners as including killing, starvation, deportation. The ‘Gyavur’ as the Armenians were pejoratively called, were to be quickly eliminated from the face of the Earth. To execute the plan, first, all intellectuals with connections and power, were rounded up, imprisoned and then disappeared on mass scale. Then, forced displacement began. All Armenians were rounded up and forced to deport. Since this process was too slow, mass killings of Armenians on unprecedented scale began. The world had not yet seen a similar systematic and targeted killing of a whole nation before. The rate of killings was so fast that by the time Armenians could seek help from other nations, the large majority of Armenians in Turkey, were ruthlessly killed. The numbers could never be accurate, but on the basis of the number of Armenians residing in Turkey, and those who survived, the estimated total was at least 1.5 million Armenian massacres.

              Both my grandfathers as kids were survivors. One escaped with his older brother, leaving behind his entire family, that was massacred. The other escaped through the desert and mountains to current Northern Armenia, carrying his younger sister on his back. The survivors spread around the globe, as living eyewitnesses to a GENOCIDE, as a testament to one of the worst crimes against humanity.

              Genocide is defined as killing of a ‘genom’, or race. All the historic chronicles indisputably proved that the Ottoman Turks were targeting Armenians to be wiped out from the face of the Earth, as the Nazis were targeting Jews or Interahamwe were targeting Tutsis.  While this was the first mass genocide of the 20th century, it was not the last. However, while the other genocides and crimes against humanity were accordingly punished and perpetrators brought to justice in various International Tribunals, the Armenian genocide went unpunished. Turkey was never brought to justice by the world to answer for its cruel acts against humanity. Furthermore, its shameful denial has received a silent imprimatur or ‘approval’ of world powers, most notably the United States, whose geopolitical interests in the Middle East have demanded alliance with Turkey. Silence and impunity have grown deep roots in the national psyche of Armenians. If a crime of such magnitude goes unpunished by the world community, the entire concept of justice on Earth is in grave danger. If the humanity were truly determined not to repeat such crimes, it would have brought justice to the victims and survivors. Indeed, it was this inaction of the world that allowed for the repetition of similar crimes against humanity in the 20th and 21st centuries, including the Jewish Holocaust, Rwandan genocide, and most recently, Darfur.  

This week we are commemorating the 99th year of the Armenian Genocide. As we renew our pledge to seek official recognition of the Armenian Genocide in the face of age-old denial by Turkey, we mourn over the innocent victims, whose tragic deaths have left an indelible scar and will scornfully sear the conscience of mankind as long as it exists on Earth.

Justice is not an abstract concept, but a truth-searching engine, a pre-condition to human survival. But while the world still remains silent in the face of denial, it is a word with no meaning.