The "Soft" Power of International Law

With the recent escalation of violence in the Middle East and the bombings in Paris, the issue of refugees has become a focal political point in the West. Half the states in the U.S. have gone so far as to openly proclaim they are refusing to accept refugees from Syria. See Here and Here. Without getting into details on the federal government's authority to overrule these objections and place refugees anywhere it wants in the country, it is vital to review the international law on refugees. It is quite disheartening to see U.S. citizens and officials so unaware of international laws and norms on any issue. Europe has been under a constant influx of refugees from the Middle East for two decades now and when their countries started openly resenting it, the United Nations placed mandatory quotas on them for accepting refugees. See Here. There have been no mandatory quotas placed on the United States and the US government informally has been fending off the refugee issue while officially proclaiming they will accept more in 2016 here. There is a formal administrative process in place for seeking a refugee status through the UNHCR, United Nations Refugee Agency, which then refers refugees to countries. However, if a country is unwilling to accept refugees, the UN as an agency often has no political will to coerce it.

International refugee law is a set of rules and procedures that aims to protect persons seeking asylum and those recognized as refugees under relevant instruments. Grounded in the Universal Declaration of Human Rights adopted in 1948 by the United Nations, the two main sources of refugee law are treaty law, notably the 1951 Refugee Convention and its 1967 Protocol, and customary international law. It is critical to understand that customary international law applies to all states irrespective of whether they are parties to a convention or not. Thus, even if the United States had not been a party to the treaties on refugees, it would still be bound by the law. However, the United States has been a party to the 1951 Convention at its inception. This concept has long triggered theoretical discussions on the application and enforcement of international laws to various problems in the world. As Justice Cardozo has eloquently stated: "International law.. has at times, like the common law within states, a twilight existence during which it is hardly distinguishable from morality or justice, till at length the imprimatur of a court attests its jural quality." New Jersey v. Delaware, 291 U.S. 361, 383.

 According to the 1951 Refugee Convention a refugee is a person who:

...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

See for more here. 

Developments in international human rights law have reinforced the principle that the Convention be applied without discrimination as to sex, age, disability, sexuality, or other prohibited grounds of discrimination. A number of principles are especially important to note. First, non-discrimination: the provisions are to be applied without discrimination on any of the recognized grounds. For example, a Muslim cannot be rejected a refugee status merely based on his/her religion. Second, non-penalization: the refugees cannot be penalized for illegal entry into the country and breaching immigration laws. Hence, once a person is defined as a 'refugee' under this Convention, he/she may not be persecuted or arrested for migrating to the country. Third and more crucial, the principle of non-refoulement: a refugee cannot be returned or expelled back to his/her country against his/her will when he/she fears threats to life or freedom. Lastly, the Convention lays down basic rules on the minimum treatment of refugees: access to travel documents, access to courts, primary education, right to work, general welfare and housing rights.

The principle of non-refoulement is considered a part of the customary international law and cannot be derogated by any state. The purpose behind is clear: it is against international law norms to return a person to a zone of life-threatening danger. Conceptually, not giving a safe haven to a refugee is the same as expelling him/her, because if a refugee is mistreated by the newly founded home, that will have the effect of forcing that person to further migration, which takes us into a different concept of internally displaced persons. Internally displaced persons (IDPs) are defined in the 1998 Guiding Principles on Internal Displacement as:

“persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border”.

While there are legal differences between refugees and IDPs, their treatment is still well-governed by the same principles of international law grounded in the Universal Declaration of Human Rights and other humanitarian instruments. See here the UNHCR Handbook on Protection of IDPs.

It is easy to lay out an international law on an issue, harder to enforce it. The adjudication of asylum status has been left to countries/States. The regional and international bodies do not have jurisdiction to rule on who is admitted or not admitted to the United States. However, they have jurisdiction to evaluate whether a given ruling by a national court has violated the international law. The domestic courts also have the prerogative of interpreting key terms from the international conventions.

For example, in Sale v. Haitian Ctr. Council, Inc.,509 U.S. 155 (1993),the U.S. Supreme Court held that the U.S. was not in violation of its non-refoulement obligation when it returned Haitians interdicted on the high seas because the Haitians were not within U.S. territory and therefore the non-refoulement obligation did not apply. However, the Inter-American Commission on Human Rights (IACHR) rejected this reasoning in IACHR, Report No. 51/96, Case 10.675, Haitian Centre for Human Rights(United States), 13 March 1997. The IACHR held that the U.S. had violated the petitioners’ right to seek asylum as well as their right to life, liberty and security of the person when it summarily returned interdicted Haitians – many of whom were subsequently arrested by Haitian authorities – without providing them with a meaningful opportunity to have their claims adjudicated. The IACHR also held that the U.S. had violated their right to freedom from discrimination, noting that a much more favorable policy was applied to Cubans and Nicaraguans. For more here.

From reading the international instruments on the refugee treatment, it is clear that states/countries cannot unilaterally turn their backs to the crisis of refugees from the Middle East or other hot spots in the world. It is at minimum a well-settled customary international law principle, as well as treaty-based law that refugees cannot be rejected, expelled and treated inhumanely. To what extent states/countries will follow this well-settled international law and custom is more about self-image and credibility as a nation in the international community. I have always believed that international law's expressive function is a lot more pronounced and crucial than its coercive function. States are like children, who won't be coerced into compliance, but may voluntarily behave accordingly if it has the effect of increasing approval by others and higher self-esteem. For a Theory of Expressive International Law see here.
 

The epidemic and the possible cures?

In the recent years of activities by the Innocence Project, when new scientific evidence and investigations uncovered the ugly stories behind convictions and lengthy sentences of hundreds of convicts, based on false eyewitnesses, police framing, false confessions, and prosecutors withholding material exculpatory evidence under Brady, there has been a real effort to confront the reality, name it by its name and find a cure. The laws on prosecutor's duty to disclose exculpatory evidence have been in place for a long time, at least since the cardinal case of Brady v. Maryland (1963) 373 U.S. 83, when the Warren court laid out the landmark ruling, that withholding of evidence material to guilt or innocence by prosecuting agencies is in violation of the due process. Multiple Supreme Court and state court cases since then have elaborated, articulated and specified the parameters of this simple rule. The prosecuting agencies, which includes the law enforcement, not only have had to disclose what they had available, but also have a duty to preserve evidence that was material to guilt or innocence. Arizona v. Youngblood (1988) 488 U.S. 51; California v. Trombetta (1984) 467 U.S. 479.


But the law was given lipservice and was shed in so many outrageous ways that it begs the question: are we a nation of laws any more? As the recent developments have shown, the prosecutors and their agents have been routinely concocting convictions by withholding evidence that could exonerate the defendants. Brady violations are routine in our practice. We don't get evidence even when we specifically ask for it. The Brady duty is self-executing. The prosecutor has an independent duty to disclose it regardless of any requests. The unfortunate fact is that the law enforcement has priority access to all evidence, as they get to the crime scene first, and are the first to speak to eyewitnesses, to gather forensics, ballistics, etc. There is a lot of room for improper conduct which can be undetected for years and years. The problem has become so widespread that the Ninth Circuit Judge Kozinski, has called this an 'epidemic' of prosecutorial misconduct in California and has spoken openly in a scathing indictment against these practices, calling to end them. See here. But the most appalling is that, as Kozinski stated, '[they] got caught this time, but they are going to keep doing this, because they have state judges who are willing to look the other way.' 

The law enforcement will keep doing this, but why do prosecutors, as attorneys who are sworn to uphold the laws, and have ethical responsibilities, fall into the trap?! It is a question that begs another question. Is the system set up in a way that encourages this prosecutorial misconduct?! Do prosecutors have sufficient discretion in their offices to do the right thing, to gather the correct information. Is the desire to obtain a conviction stronger than the prosecutorial duty to obtain justice? 
 Whatever the motives and reasons behind the prosecutorial misconduct, the question is how to cure the epidemic. As Judge Kozinski correctly pointed out, while the judges are willing to keep looking the other way, the prosecutors will not have any incentive in correcting their behavior. As he stated: 

"While most prosecutors are fair and honest, a legal environment that tolerates sharp prosecutorial practices gives important and undeserved career advantages to prosecutors who are willing to step over the line, tempting others to do the same. Having strict rules that prosecutors must follow will thus not merely avoid the risk of letting a guilty man free to commit other crimes while an innocent one languishes his life away, it will also preserve the integrity of the prosecutorial process by shielding principled prosecutors from unfair competition from their less principled colleagues."

 See here . See here for the full article.

 Kozinski has offered many solutions to this epidemic, one of which is to have judges appointed, rather than elected. In his opinion, if judges had the political autonomy, not bound by public opinion, they would have more incentive to reign in these rogue prosecutors. It is true that judges as most elected officials feel they have a duty to follow the public sentiment that is generally calling for toughness on crime and stronger victim's rights. However, as a criminal defense attorney of almost 10 years, I have not seen any difference between appointed and elected judges in that regard. The appointed judge, just as the one who is up for re-election, is scared of the spectre of her name appearing in the papers, in connection of a heinous crime by a 'criminal' who was released on bail or probation by her. Hence, tough and lengthy sentences. Hence, the desire to convict. Hence, institutional approval of prosecutorial misconduct and  no scrutiny of law enforcement techniques that obtain convictions. There are various pre-trial motions filed by us, defense attorneys, that give multiple opportunities to judges to scrutinize the law enforcement tactics in obtaining the evidence. However, they turn a blind eye, denying suppression of unlawfully obtained evidence, whether it is a confession or real evidence, denying motion for personnel file of the involved police officer, denying motion to exclude confession obtained in violation of Miranda rules, denying motion to obtain prior criminal record history of alleged victim.... 

The reality is that most judges are former prosecutors, whose sympathies and loyalties are aligned with the prosecutors doing these outrageous things to obtain convictions. In a perfect world they are impartial arbiters of justice. Some of them are and do strike the proper balance. But so many more are simply not up to the task. Those who do the right thing almost often face political repercussions.

California has recently passed the bill AB 1328 here, that mandates judges to report individual prosecutors to the State Bar for failure to disclose exculpatory evidence. It also allows the judges to disqualify not only the individual prosecutor for a Brady violation, but also the entire DA's office upon any evidence of a pattern or practice of intentional Brady violations.  

I doubt this will have any teeth because of the political structure in our country: the power tilting in favor of the governmental authorities pursuing law and order against the individual's rights enshrined in the Constitution.

Fourth Amendment in the age of surveillance

The Fourth Amendment has been under a massive attack in the post-911 age where the privacy of the U.S. citizens has been held to be secondary to public safety and counter-terrorism efforts. The unprecedented technological advances have made it a lot more possible than one could imagine. Surveillance, wiretapping, tracking devices, and more and more technological means of monitoring human activities are entering the landscape, prompting judges to look outside the box in analyzing the Fourth Amendment challenges. The determination whether a government action is in violation of the Fourth Amendment is a two-tiered analysis, 1) whether the challenged action by government is a search/seizure, 2) whether it is reasonable. The larger question of course is how much privacy can we legitimately expect in this world where all our actions, whether it is at home, at work or in the streets, are tracked by the government. We are being tracked and monitored when we browse on the internet, go shopping, eat dinner with our family, and go on vacations. All the credit cards and other plastics we carry have encoded chips with our personal information. Every activity we engage in is highly monitored. Our identity, our daily lives, our 'personal' information is no longer private, but public information, widely accessible to everyone, specifically the government.

Because the 'search' as a concept no longer has the traditional meaning, the judges have tried to delineate the contours of the new Fourth Amendment limitations. Significantly, in 2001 in Kyllo v. United States, 533 U.S. 27, the Rehnquist Court held that the use of a thermal-imaging device to track the heat emitting from the suspect's home was a 'search' within the Fourth Amendment that required a warrant. Despite the fact the device was placed in the public vantage point and was only tracking the heat not human activity emitting from home, it was rightfully considered a 'search.' It was very interesting, how the justices divided in a 5-4 opinion: Scalia was joined by Souter, Thomas, Ginsburg and Breyer for majority, while Stevens dissented with Rehnquist, O'Connor and Kennedy. Scalia urged that there was no difference between 'off-the-wall' and 'through-the-wall' technology, since both intruded upon the privacy of the home.

Flash forward to 2011, Scalia delivered the opinion of the Court in U.S. v. Jones, 132 S. Ct. 945, where the Court held that use of a GPS-tracking device on a vehicle  similar to a thermal-imaging device in Kyllo constituted a search within the Fourth Amendment that required a warrant. In fact, this was an easier case for the Court because the device was actually installed on the vehicle unlike the thermal-imaging device that was monitoring the home of Kyllo from the public space. Consequently, the Court held that this type of an encroachment would have been "considered a search within the meaning of the Amendment at the time it was adopted." Even the originalists, who tend to resort to the 'original' meaning  and purpose of the Constitution would agree with that. The Court hooked on the common-law trespass jurisprudence of the Fourth Amendment prior to the Katz holding (Katz v. United States 389 U.S. 347) to dispense with the argument by Government that Jones did not have "reasonable expectation of privacy" under the circumstances. The Court made it clear, what was objectionable was that the Government "physically occupied private property" for the purpose of obtaining information and that the Katz holding did not substitute but only supplemented the common-law trespass theory of Fourth Amendment protections.

In light of U.S. v. Jones the Court has recently held in Grady v. North Carolina, 575 U.S. __ (2015), No. 14-593 that the satellite-based monitoring of a registered sex offender was a search within the meaning of the Fourth Amendment and has to be reasonable. In that case North Carolina had demanded to install a tracking device on Grady, a convicted sex offender, without his consent to monitor his activities for the rest of his life. The Court easily dispensed with the unsupported position of the Government that this was not a search, but remanded it for further proceedings whether this could be found reasonable.

It seems, there are two tracks the U.S. Supreme Court has been following in grappling with these cases. Common-law trespass arguments that prohibit 'physical' intrusion by government into a protected area, and the 'reasonable expectation of privacy' arguments formulated by Katz. It is a flexible and useful approach. However, it lends uncertainty to the Fourth Amendment jurisprudence, because it leaves much room for inconsistent opinions by judges below and lack of confidence in how the U.S. Supreme Court will decide the next case. In this age, it would be vastly critical to have a certain amount of certainty when it comes to our privacy rights and the degree to which the Government can intrude upon our lives.

Outdated technology and reduced privacy

The California legislature has recently introduced a bill SB 249 (Hueso) on enhanced driver's licenses, that use "RFID" (radio frequency identification) CHIP technology to facilitate movement across california-mexican border. The goal is to reduce the border congestion and wait lines. However, as the critics have pointed out, the technology is outdated and unreliable because these chips are un-encrypted unlike the modern credit cards and passports. It not only opens doors for identity thieves but also privacy breaches by the government and employers, who may in addition decide to make them a job requirement. The significant fact is that the personal information stored in these licenses would be remotely accessible. The bill is couched in terms of giving false sense of security to those who apply for these licenses, something that should be widely challenged by privacy advocates.

With the modern technological advances used by the American government to facilitate the law enforcement and surveillance of citizens and non-citizens alike, we have long said goodbye to our privacy. The question is how far are we going to go with the open efforts by government to co-opt us into 'voluntary' compliance? 

For more see here and here.

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. 

Racism and police state

https://www.aclu.org/blog/racial-justice-criminal-law-reform-free-speech/ferguson-everytown-usa

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.

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!

"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.

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 20^th 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 20^th and 21^st centuries, including the Jewish Holocaust, Rwandan genocide, and most recently, Darfur.  

This week we are commemorating the 99^th 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.

               

March on Washington

On August 28, 1963, Martin Luther King Jr. delivered his famous speech "I Have a Dream." Marking an end of an epoch, this man had to pay a heavy price for his incredible courage. The 'Dream' had to be soaked into the heavy drips of his own blood, sacrifice of his own precious life. Like Jesus Christ he came as a missionary, a man with a new vision for a better life, for better humanity. His concept of freedom, equality, and justice were quite different from those of the rest, living among him. He came to write a new era, and fearlessly opened it himself by boldly marching forward, towards his vision. It might not have even occurred to him how crazy his ideas seemed, and how much hatred he raised among so many. Empowered by his passionate quest for justice, he persisted against the ugly cynicism and debilitating complacence of the past, and forged a new path for America and the rest of humanity. That was the dream, lived through his own life, struggles, fears, vision and faith... That was the dream, that could become true if only people ultimately understood what was right and what was wrong. Even if they did not understand it in their souls, the power of law was going to force them to understand and comply with the new way of life.


Dr. King knew that most people still lived in the age of darkness, when it was quite all right to have racism, segregation, and effective slavery of the black race. He knew well enough that racism had its source in the hearts and minds of people, that no law in the world would change it. As an idealist, he envisioned the world free of darkness, and called on people to come out to the light, by rejecting the status quo, eliminating the chains and shackles of virulent discrimination of the black people. As a realist, though, he understood that this had to be accomplished first by the power of law. If the law was set in place, ending segregated schools, ending segregated housing, ending segregated public accommodations, etc., it would force upon people a new way of life, a new way of thinking, a new reality that would also slowly erode the racism from their hearts. But he couldn't wait, he had no patience for slow change. He wanted it 'Now.' He understood the urgency of 'Now.'


So, his goals were two-fold, force passage of new laws, that would fundamentally alter the status quo, despite the strong and virulent opposition, and also call upon people to embrace his dream, in their hearts and their minds.


Today as a nation we have come a long way, thanks to Dr. King. We have been able to cross milestones. This is no longer the same America that was in place on August 28, 1963. But the dream has been shed too many times, and in too many subtle and not so subtle ways, to be ignored. The difference now is that while people recognize right from wrong, they still act on their deeply-seated biases, covertly. People were less politically correct and less in-tune with 'demands' of the civilized society. Now it has become harder to catch people in wrong-doing because they have learned to camouflage it, and find other excuses. The hypocrisy of today's world is quite stark. In the old days, people would call an African-American a 'nigger' and the KKK would lynch him with impunity. Now no one dares to utter this deeply insulting word, and organizations like KKK are illegal. White supremacism is now only an underground irrational and hard-recognized 'psyche' of the white people, who still harbor discrimination against the blacks, Hispanics, etc.


Behind the halls of justice, in any criminal courthouse, in California, a large majority of criminal defendants are black. You wonder, how did that happen. Does poverty breed crime and why are blacks still poor? Why weren't they able to have a fair shot at the riches of this Earth, unless there was some other scourge besieging them, some other unfair force weighing them down to the lowest position in society. What other scourge besides racism, can we point to?!


When you go to Compton, a predominantly black neighborhood, a poor ghetto, you wonder, did Dr. King's dream have any chance of coming true? Did we fail that dream somehow? Did we really give our best shot at it, as a society, as a nation, as a humanity? I don't have an answer for it. But I know in my heart and in my soul, I have a sacred obligation to embrace, live through and fight for that dream, every day.

The end does not justify the means

We are not impressed by the argument that law enforcement methods such as those under review are necessary to uphold our laws. The Constitution proscribes such lawless means irrespective of the end. And this argument flouts the basic principle that all people must stand on an equality before the bar of justice in every American court. Today, as in ages past, we are not without tragic proof that the exalted power of some governments to punish manufactured crime dictatorially is the handmaid of tyranny. Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement. Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death. No higher duty, no more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution -- of whatever race, creed or persuasion.

Justice Black in Chambers v. Florida(1940) 309 U.S. 227.

Fact-finding infected with bias...

As noted, intrinsic challenges to state-court findings pursuant to the "unreasonable determination" standard come in several flavors, each presenting its own peculiar set of considerations. No doubt the simplest is the situation where the state court should have made a finding of fact but neglected to do so. In that situation, the state-court factual determination is perforce unreasonable and there is nothing to which the presumption of correctness [*1001] can attach. See, e.g., Wiggins, 123 S. Ct. at 2539-40; Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002); Weaver, 197 F.3d at 363; Nunes, 350 F.3d at 1055. A somewhat different set of considerations applies where the state court does make factual findings, but does so under a misapprehension as to the correct legal standard. See, e.g., Caliendo v. Warden, 365 F.3d 691, 2004 U.S. App. LEXIS 6416, 2004 WL 720362, at *6 (9th Cir. Apr. 5, 2004); Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir. 2002); Wade v. Terhune, 202 F.3d 1190, 1197 (9th Cir. 2000). Obviously, where the state court's legal error infects the fact-finding process, the resulting factual determination will be unreasonable and no presumption of correctness can attach to it.

Closely related to cases where the state courts make factual findings infected by substantive [**17] legal error are those where the fact-finding process itself is defective. If, for example, a state court makes evidentiary findings without holding a hearing and giving petitioner an opportunity to present evidence, such findings clearly result in an "unreasonable determination" of the facts. See, e.g., Weaver, 197 F.3d at 363; Nunes, 350 F.3d at 1055; cf. Bryan v. Mullin, 335 F.3d 1207, 1215-16 (10th Cir. 2003) (declining to apply presumption where state court failed to hold an evidentiary hearing). But see Valdez, 274 F.3d at 948-50 (sections 2254(d)(2) and (e)(1) apply despite defects in the state-court hearing). Similarly, where the state courts plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable. See, e.g., Wiggins, 123 S. Ct. at 2538-39; Hall, 343 F.3d at 983. And, as the Supreme Court noted in Miller-El, the state-court fact-finding [**18] process is undermined where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim. Miller-El, 537 U.S. at 346 ("Our concerns are amplified by the fact that the state court also had before it, and apparently ignored, testimony demonstrating that the Dallas County District Attorney's Office had, by its own admission, used this process to manipulate the racial composition of the jury in the past."); accord Collins v. Rice, 348 F.3d 1082, 1097 (9th Cir. 2003), as amended and superseded on denial of reh'g by 365 F.3d 667, 2004 U.S. App. LEXIS 6780, 2004 WL 743723 (9th Cir. Apr. 8, 2004).

....

In instructing jurors about their fact-finding function, we normally advise them to consider the entire record, not individual pieces of evidence standing alone. See United States v. Bertoli, 40 F.3d 1384, 1401 (3d Cir. 1994); United States v. Betancourt, 838 F.2d 168, 175 (6th Cir. 1988); United States v. Minyard, 461 F.2d 931, 934 (9th Cir. 1972); Kearney v. Bell, 160 Cal. 661, 668-69, 117 P. 925 (1911); Breuner Co. v. Allred, 98 Cal. App. 92, 96, 276 P. 422 (Ct. App. 1929); see, e.g., CALJIC 2.50.2 ("You should consider all of the evidence bearing upon every issue . . . ."); CALJIC 8.84.1 ("Both the People and the defendant have a right to expect that you will consider all of the evidence . . . ."). This reflects the philosophy of our common-law fact-finding process, namely, that the various pieces of evidence and testimony in the record must be considered in light of all the others. Testimony may seem implausible standing alone, yet gain considerable force when confirmed in a material respect by an independent source or by an objectively verifiable fact. Similarly, testimony may seem highly plausible, [**36] yet be discredited when it is shown to be irreconcilably in conflict with other evidence. Fact-finding is thus a dynamic, holistic process that presupposes for its legitimacy that the trier of fact will take into account the entire record before it.

What goes for juries goes no less for judges. In making findings, a judge must acknowledge significant portions of the record, particularly where they are inconsistent with the judge's findings. The process of explaining and reconciling seemingly inconsistent parts of the record lays bare the judicial thinking process, enabling a reviewing court to judge the rationality of the fact-finder's reasoning. On [*1008] occasion, an effort to explain what turns out to be un-explainable will cause the finder of fact to change his mind. By contrast, failure to take into account and reconcile key parts of the record casts doubt on the process by which the finding was reached, and hence on the correctness of the finding. See, e.g., Gui v. INS, 280 F.3d 1217, 1228 (9th Cir. 2002) (failure of immigration judge to support adverse credibility finding with specific, cogent reasons constituted grounds for reversal); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1988) [**37] (failure of ALJ to give specific reasons for ignoring treating physician's opinion constitutes grounds for reversal).

Taylor v. Maddox (9th Cir. 2004) 366 F.3d 992

Letter to Chancellor

For the story,

Law Office of Narine Mkrtchyan
117 W. 9th Street, Suite 1001
Los Angeles, CA 90015
Tel: (818) 388-7022
Narine56@msn.com

Offices of Chancellor and Provost
Fifth Floor, Mrak Hall,
University of California, Davis
One Shields Ave,
Davis, CA 95616
November 21, 2011



Dear Chancellor Katehi:

As a proud King Hall alumna, Graduate Class of 2005, and also an alumna of UCLA, Undergraduate Class of 2001, let me express my complete outrage with the appalling incident at UC Davis that has sparked national concern over the last three days. The campus police pepper-spraying peaceful demonstrators and students nowhere else but on our own campus at UC Davis, at the direction of no one else but our own educators and campus administration, is unacceptable to any sense of justice and proportionality.

In 2008 this nation made a promise to its future generations, a promise that has not come to its fruition. It was a promise to embark upon long-awaited change, change for social and economic justice and equality. Change, however, was to come by concerted efforts of all Americans, united and determined in that struggle. In the words of our spiritual leader, Dr. Martin Luther King, Jr., “Change does not roll in on the wheels of inevitability, but comes through continuous struggle. And so we must straighten our backs and work for our freedom. A man can't ride you unless your back is bent.”

The demonstrators that were pepper-sprayed by the campus police at your Administration’s direction, represent that promise that was broken, that change that was demanded for. Particularly because UC Davis is an educational institution, an arm of UC Regents, the best and most liberal University chain in the state of California, it should be at the forefront of this movement, take up the task of its leadership, organize the youth, inspire them, and lead them forward towards the change that America deserves. As education is the engine of any nation, you as educators have a high responsibility to preserve and enrich the best promise in the example of students who have taken up the difficult task of the struggle for better America. You are the Prometheus entrusted with carrying the torch of light for the future generations. Instead the University has chosen to take the shameful escape to the convenient and bankrupt ‘yesteryear,’ the rejection of freedom, succumbing to the authoritarian principles of the law enforcement. The Civil Rights Movement in the United States did endure a similar attack by those who were in shameful denial of the urgency of Change.

As a criminal defense attorney, practicing for five years, I have seen what you might not have seen. I regret to report, from the trenches, that our civil rights and the rights enshrined in the United States Constitution have been shed and downgraded by precisely the same subterfuge to the principles deeply antithetical to Liberty, Equality and Justice. America has been mercilessly thrown into the lap of corporations and financial institutions, with the secret agreement and silent blessings of our government. For fear of losing its grip and authority on the people angry with this treachery, the government has stifled all the freedoms and rights of the ordinary citizens, by turning into an ominous and authoritarian police regime. There is no escape from the iron grip and it is getting tighter and tighter.

These students and peaceful demonstrators represent the voice of America fed up with the status quo. They are standing up for civil disobedience and promise of change. If they have broken the current laws and/or campus policies, it is because those ‘laws’ as they are written down and enforced, no longer represent the American people and their urgent needs. If they have done something wrong by sitting and protesting to the current affairs without even resorting to any violence, then that law that they are breaking is morally wrong, not just and fundamentally un-American. In the words of Dr. King, “… an individual who breaks the law that conscience tells him is unjust and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.”

It is clear from watching the video of the shameful incident, the students were not engaged in any violence, were only seated when the police, nonchalantly, sadistically and brutally started pepper-spraying. This scenario is unfortunately not new to me, having represented many individuals as victims of police brutality. But what is new and unacceptable to me, is the fact that this was permitted and authorized by the University officials on the very school grounds, against students as peaceful demonstrators.

Therefore, I request immediate resignation of all Administrative officials of UC Davis who authorized and/or failed to stop this action. Furthermore, I demand immediate termination of employment of the involved police officers, to set a clear example to the rest of the nation that these incidents will not be tolerated in the future. I do not believe placing these officers on paid administrative leave is an appropriate measure in light of their highly anti-social and brutal behavior.

Unless serious action is done to repair the image of the University of California, I refuse to associate myself any longer with UC Davis and King Hall.

Sincerely,


Narine Mkrtchyan, Esq.

Change is in grassroots...

Occupy Wall Street= Change that America deserves
http://www.cnn.com/2011/10/05/opinion/rushkoff-occupy-wall-street/index.html

Role of judiciary

The question on the role of judiciary is frequently entertained and analyzed. Some groups uphold the conservative approach that requires judges only to 'interpret' the law, expound on the law, not change it. Others are of the more liberal approach that judges are to 'make law', because the elected officials cannot do the 'right' thing facing their political constituents. The cause of the minorities historically has been advanced by the judiciary.

Two problems with this distinction. First, in one sense, 'interpretation' of the law cannot be really done without some implicit/explicit making, remaking, fashioning of the law. It is an absurdity to even argue that judges should not 'make' law, especially in the background of the American case-law bound system. Statutes are only the skeleton of the 'law', and the cases are the muscles, tissue, organs, etc.

Second, and conversely, there is no longer any real separation of judiciary with legislative or executive bodies. In the recent years in the United States there has been a very prominent erosion of historic boundaries among the three branches of the government at all levels, local, state and federal. Judges now are in the same position as the legislators in that any decision/ruling they make is subject to immediate political consequences/repercussions. The idea of 'checks and balances' and 'separation' of powers that held together the fabric of this country for at least two hundred years has been discarded. Because the judges feel directly accountable to the public for their rulings, they feel compelled to act like legislators, to please their constituents. That translates into an 'inactive' judiciary that will really not take upon doing the 'right' thing even when it is unpopular. So, really the concept of 'judge-made' law is outdated...

An independent judiciary was to serve several goals, one of which was to protect minorities against the 'tyranny of the majority.' It was also to ensure that the Constitution was interpreted independent of political expediency, public whim and caprice... After all, the Constitution is a document that was created for all times and ages, and was not to be pushed back in favor of particularistic interests of either the government or the people. Judges were supposed to guard and watch the Constitution essentially against the greedy encroachments of various human groups, elements, structures, each demanding their own selfish interests.

But of course the Constitution is also a living document, that needs to be placed in the context of the problems that arise in modern times. Interpretation of the Constitution cannot be in the void, without regard to the demands and needs of the society. Because judges are after all human, and products of their society, the interpretation of issues of constitutional dimensions is highly volatile, arbitrary and dependent on many variables, such as personalities, predispositions, political views of judicial officers. Therefore, it does not really make any difference to argue whether judges should be 'active' or not. Either way, they are going to be 'active' whether they choose or not, insofar as they are instrumental in 'expounding' a living document, such as a Constitution. They can be 'active' in perpetuating the status quo, as it is laid down by the legislature and the people, by giving constitutional validity to the status quo. That is a very 'active' role. In the most fundamental sense, after all they are the ones who create the 'case law'.

• It is emphatically the province and duty of the judicial department to say what the law is...If two laws conflict with each other, the courts must decide on the operation of each...This is of the very essence of judicial duty.


o Marbury v. Madison, 1 Cranch, 1317 (1803).

• The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will.

o Cohens v. Virginia, 6 Wheaton (19 U.S.) 264, 389 (1821).

• We must never forget that it is a constitution we are expounding.

o 4 Wheaton 316, 407.

• This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.

o 4 Wheaton 316, 415.

• Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

o 4 Wheaton 316, 421.

[Justice John Marshall]

Liberty and 'liberty'

"Free people, remember this maxim: we may acquire liberty, but it is never recovered if it is once lost."

"Man is born free, and everywhere he is in shackles."

"Liberty is obedience to the law which one has laid down for oneself..."
[Jean Jacques Rousseau]

Sailing forward... unfettered...

I do solemnly swear that as an attorney and as a Counselor of this Court, I will conduct myself uprightly and according to law, and that I will support the Constitution of the United States.

"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal against the state; a constant heart-searching by all charged with the duty of punishment; a desire and an eagerness to rehabilitate . . .; tireless efforts toward the discovery of creative and regenerative processes; unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols which . . . mark and measure the stored-up strength of a nation . . . proof of the living virtue in it"--[Winston S. Churchill, in a speech delivered in the House of Commons in 1910 while he was Home Secretary.]
 
"You have enemies? Good. That means you've stood up for something, sometime in your life." [Winston S. Churchill]
 

Crime and punishment

"The purpose of punishments is not to torment and afflict a sentient being or to undo a crime which has already been committed. Far from acting out of passion, can a political body, which is the calm agent that moderates the passions of private individuals, harbor useless cruelty, the tool of fury and fanaticism or weak tyrants? Can the cries of the poor wretch turn back time and undo actions which have already been done? The purpose of punishment, then, is nothing other than to dissuade the criminal from doing fresh harm to his compatriots and to keep other people from doing the same. Therefore, punishments and the method of inflicting them should be chosen that, mindful of the proportion between crime and punishment, will make the most effective and lasting impression on men's minds and inflict the least torment on the body of the criminal." [On Crimes and Punishments by Cesare Beccaria, 1764]

"In enforcing this punishment [of life imprisonment] in the Federal Republic, state officials are under a duty not merely to incarcerate but also to rehabilitate the prisoner through appropriate treatment... The court on several occasions has maintained that rehabilitation is constitutionally required in any community that establishes human dignity as its centerpiece and commits itself to the principle of social justice. ... The condemned criminal must be given the chance, after atoning for his crime, to reenter society... ... the state strikes at the very heart of human dignity if '[it] treats the prisoner without regard to the development of his personality and strips him of all hope of ever earning his freedom... ... [a hope] which makes the sentence bearable in terms of human dignity. [Constitutional Jurisprudence of the Federal Republic of Germany. Life Imprisonment Case, (1977) 45 BverGE 187.]

'Totality of circumstances' or 'unbridled discretion?'

Test for reasonable suspicion:

"An officer may make an investigatory stop if he is aware of specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that the particular person detained is engaged in criminal activity. The officer must consider the 'totality of circumstances-- the whole picture'. The facts are to be interpreted in the light of a trained officer's experience. They must, however, be more than the mere subjective impressions of a particular officer. Permissible deductions or rational inferences must be grounded in objective facts and be capable of rational explanation; 'while an officer may evaluate the facts supporting reasonable suspicion in light of his experience, experience may not be used to give the officers unbridled discretion in making a stop." U.S. v. Hernandez-Alvarado, 9th Cir. (1989), 891 F.2d 1414.

The so-called 'totality of circumstances' test that was elaborated in U.S. v. Sokolow (1989), 490 U.S. 1 and was later affirmed in U.S. v. Arvizu (2002), 534 U.S. 266, allows officers/courts to add up a number of seemingly innocuous and innocent factors to create 'reasonable suspicion' of criminal activity. In fact, 'totality of factors' is the most favorite term of the law enforcement. It is really bootstrapping and subversion of the principles of Fourth Amendment. If each of the factors described by the officer is susceptible of innocent explanation, how can their mathematical add-up amount to criminal activity? The process though was not meant to be that simple. Supposedly, the whole process of adding-up and deductive analysis should be rational, not subjective and grounded on specific facts. Officers experienced in the field of testimony come to court with formulas, ready stories. It simply shocks me how often they offer the same story, same terminology, same pattern of conduct and same analysis over and over again. They are trained to amalgamate the facts into their formulas. Facts that happen in the real world are subservient to their training and they analyze those facts, if they have such capacity, through the lens of their training, experience and policies. Experienced officers never just relate or recite the facts as they happened. They only tell those facts that they believe should have happened... It amazes me how many times when I ask an officer a specific question regarding the incident, he starts off by saying, 'I usually do this...' or 'It is my custom/practice to do this...' I repeat my question, 'I am not interested in what you usually do... What did you do on this particular occasion when arresting my client?' Often they say, 'I don't specifically recall.' They don't recall because they are trained like automatons not to recall what exactly happened but only what should have happened.

If you are supposed to read Miranda rights before questioning someone in custody, you usually do that. But did you do it on this occasion?

If you are supposed to formulate the facts amounting to reasonable suspicion of criminal activity before and at the stop, did you do it on this occasion? Did you simply find out those facts after the stop but wrote in your report as if you knew them before the stop?

Officer experience and training then drive the whole Fourth Amendment analysis. Their credibility, highly suspect, as very biased witnesses, is accorded a lot of weight by courts in deciding if someone's freedom from government interference should be respected. One would hope that courts were less naive and less deferential to such highly biased witnesses, who are caught lying with shocking regularity in our criminal justice system. Is it worth it? Don't the courts often think that this erodes the integrity of the entire system? If we are going to depend on the law enforcement for our safety and protection, doesn't it make you feel quite unsafe and quite unprotected knowing that they lie with impunity... I don't think, securing a conviction of one man is worth jeopardizing the entire system.

Credibility aside, even with the most honest and well-meaning officer, very well trained and conscientious as a witness, is it a good idea for us to surrender the freedoms secured to us to such an elusive concept as 'totality of factors?'

A: 'M'am we look at the totality of factors.'
Q: 'Totality of what factors, officer? Can you please enumerate all the factors, one by one, 1, 2, 3, 4, as to why you believed my client was engaged in criminal activity.'
A: He was wearing a hat with a 'G' on it.
Q: Is wearing a cap with a G necessarily point to his allegiance to the gang?
A: No.
Q: What else?
A: He was wearing oversized pants.
Q: Does that point to gang membership?
A: No.
Q: What else?
A: He was wearing tennis shoes predominantly worn by gang members.
Q: Does that amount to gang membership?
A: No.
Q: Next.
 A: He was pacing up and down the street in front of a known gang hang-out.
Q: Does that tell you that he is a member of that gang?
A: No.
And so forth.
At the end of all factors described that are not by themselves enough to suggest membership in the gang, officer will opine that 'your client is a member of that gang and I stopped him because I formed the opinion he was in violation of the gang injunction.'
Totality of innocent factors may indeed amount to a crime...

Reasonable suspicion v. probable cause...

"'The infringement on personal liberty of any 'sezure' of a person can only be 'reasonable' under the Fourth Amendment if we require the police to possess 'probable cause' before they seize him...'

The fears I voiced in Terry about the weakening of the Fourth Amendment have regrettably been borne out by subsequent events. Hopes that the suspicion test might be employed only in the pursuit of violent crime-- a limitation endorsed by some of its proponents-- have now been dashed, as it has been applied in narcotics investigations, in apprehension of 'illegal' aliens, and indeed has come to be viewed as a legal construct for the regulation of a general investigatory police power. The suspicion test has been warmly embraced by law enforcement forces and vigorously employed in the cause of crime detention. In criminal cases we see those for whom the initial intrusion led to the discovery of some wrongdoing. But the nature of the test permits the police to interfere as well with a multitude of law-abiding citizens, whose only transgression may be a nonconformist appearance or attitude. As one commentator has remarked: 'Police power exercised without probable cause is arbitrary. To say that the police may accost citizens at their whim and may detain them upon reasonable suspicion is to say, in reality, that the police may both accost and detain citizens at their whim.'"

Justice Douglas, concurring in United States v. Brignoni-Ponce, (1975) 422 U.S. 873.