SCOTUS to consider what training, credentials needed for drug-dog alert probable cause

The US Supreme Court agreed this week to hear arguments regarding a case from the Florida Supreme Court to decide what level of training, certification, etc., is sufficient for a narcotics dog's alert to count as probable cause. The Florida Supreme Court held the dog in Florida v. Harris was not sufficiently credentialed, so if SCOTUS doesn't like the ruling, there's a risk they took it up to overturn it.

The opinion out of Florida is fascinating, and they appear to have caught the state in a Catch-22: "The State argues that records of field performance are meaningless because dogs do not distinguish between residual odors and drugs that are present and, thus, alerts in the field without contraband having been found are merely unverified alerts, not false alerts. This assertion, if correct, raises its own set of concerns as it relates to a probable cause determination of whether the dog's alert indicates a fair probability that there are drugs presently inside the vehicle."

The Florida court declined "to adopt the view of the First, Fourth, and Fifth Districts" because it would "place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability — evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record, such as in this case." Absent such documentation, "when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person."

Bottom line, if I'm reading the opinion correctly, the dog in Harris had been "trained" and "certified," but the department kept no ongoing training records and considered their hit-rate in the field meaningless and so didn't record it. Thus the court ruled that merely being trained and certified, at some point in time by somebody, is not enough to judge a dog reliable without more documentation. "Because the State must establish that the officer has a reasonable basis for believing that his or her dog is reliable in order to prove probable cause based on the dog's alert," said the Flordia court, "the State carries the burden of presenting the necessary records and evidence for the trial court to consider in adequately evaluating the dog's reliability."

How many K-9 handlers keep training and field records recording accuracy rates, and what proportion of US drug dogs might this case affect if SCOTUS accepts the Florida Supreme Court's view? Who knows? Or maybe they just took the case up to bench slap the Florida high court and bring it in line with the more permissive federal districts?

This is an area of forensics - used on the front end for probable cause as opposed to the back end at trial - that deserves much more scrutiny. Dog alerts in other contexts have been deemed unreliable. As the court noted, "there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs."

I'm hardly sanguine the US Supreme Court will agree with their brethren jurists from the Sunshine State, but Grits welcomes the debate. Even if they strike down the Florida ruling, the case will be an opportunity for a belated discussion over what dog handlers should be doing with regards to training and record keeping compared to what often happens in the field.

MORE: See an article Radley Balko wrote last year on the reliability of drug dog alerts and how humans interpret them.

AND MORE: See a discussion of drug dogs on the Texas prosecutor association user forum in which Williamson County DA John Bradley confidently predicts that "SCOTUS took the case to remind the states that probable cause is not cause for a full-blown trial." Tarrant County prosecutor David Curl, though, noted that the Florida court emphasized that "evidence of the dog's performance history in the field — and the significance of any incidents where the dog alerted without contraband being found — is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found."

FURTHER THOUGHTS: We don't know which justices wanted to hear the case, so it's hard to say before oral arguments whether Harris will be more about reinforcing the court's decision in Caballes giving carte blanche for drug sniffing dogs, or more about policing drug dogs' misuse in light of a greater awareness of forensic errors. I"m not a lawyer, but as it's been explained to me, "probable cause" generally means "more likely than not," or above a 50% likelihood. ("Reasonable suspicion" is an even lower standard.) So if a drug dog finds contraband only 45% of the time it alerts - to pull a number out of the air - would that constitute "probable cause," or must the dog's reliability be higher? And what happens when a law enforcement agency avoids that question simply by failing to keep records? Those are the questions Grits hopes the court will focus on when it takes up Florida v. Harris.

In jail, but not 'in custody'

Liberty and Justice for Y'all has the story of a recent US Supreme Court case ruling that an inmate questioned while in jail for an unrelated crime is not "in custody" for purposes of requiring a Miranda warning. Talk about a term of art, when you can be in jail, but not "in custody"!

Overcriminalization Folly of the Week: Felony driving without a license

Grits went to read an important new US Supreme Court opinion (pdf) out this week, Missouri v. Frye, related to whether a plea deal never submitted to a client by his attorney was grounds for post-conviction relief because of ineffective assistance of counsel. It's an interesting question, but I did a double, then a triple take when I read the opening lines describing the underlying case in the opinion, then couldn't get past it: "Respondent Frye was charged with driving with a revoked license. Because he had been convicted of the same offense three times before, he was charged, under Missouri law, with a felony carrying a maximum 4-year prison term."

Huh? A max four-year prison term for driving without a license? Even for the fourth offense, that seems extreme. According to this source, actually, in Missouri it's a felony on the third offense. That seems borderline totalitarian - "Show me your papers, comrade, or I'll slap you in prison for four years." Yikes! You can fill up a gulag pretty darn quickly that way! Even with that extreme penalty, though, one in ten Missouri drivers have no license.

This is overcriminalization run amok. With incarceration costs running in the $20,000 per year range, it'd be a lot cheaper to remove barriers to licensure and spend the money you would have spent on prosecution and incarceration to give out free bicycles and bus passes. The absurdist cost-benefit analysis behind making driving without a license a felony worthy of prison time boggles the mind.

SCOTUS expands habeas access on ineffective assistance claims

The US Supreme Court issued an important habeas corpus decision (pdf) this week that may have implications in prominent Texas cases, and though Grits hasn't had time to read through it and digest the implications, I thought I'd at least round up the relevant links, if only so I can go through them myself soon. First, here's how Brandi Grissom at the Texas Tribune described the case:

The nation’s highest court ruled that the failure of initial state habeas lawyers to argue that their client’s trial counsel was ineffective should not prevent the defendant from making that argument later on. Lawyers across the country, including those for at least two Texas death row inmates, were eagerly awaiting the court’s ruling in the Martinez v. Ryan case out of Arizona, which could expand appeals access for inmates.

“A procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in the proceeding was ineffective,” the court majority held.

Habeas lawyers investigate issues that could or should have been raised during a defendant’s original trial.

The ruling may have direct implications for a case mentioned recently on Grits:

The ruling could also be a boon for death row inmate Rob Will, who was convicted in 2002 of fatally shooting a Harris County sheriff’s deputy. Will says that the man he was with that night was the real shooter and that he is innocent.

In January, U.S. District Court Judge Keith Ellison denied Will’s pleas for a new trial but wrote that he lamented doing so because of “disturbing uncertainties” raised about his guilt.

Will is hoping the court’s ruling in Martinez will allow him to argue that he should get a new trial because both his trial lawyer and his state-appointed habeas lawyer were ineffective when they failed to track down several witnesses who have testified that the other man confessed to the killing.

See the SCOTUSBlog Wiki page on Martinez v. Ryan, good guest blogging on the subject at Sentencing Law & Policy, as well as Adam Liptak's coverage in the New York Times and notable commentary at the ABA Journal, the Courthouse News Service, and the Habeas Book Blog.

Executing innocents still okay after SCOTUS cert denial; will Texas take them up on it?

Like Pontius Pilate washing his hands of the dispute, the US Supreme Court yesterday declined to consider the question of whether the US Constitution permits the execution of an innocent person if the government has not violated their due process rights. The issue could have been taken up in the Texas death-penalty case of Larry Swearingen, but SCOTUS denied cert (i.e., they refused to hear it). Reports Bloomberg News:

Questions about the constitutionality of executing an innocent person are a “brooding omnipresence” in federal law that have “been left unanswered for too long,” Judge Jacques Wiener wrote in a 2009 ruling on Swearingen at the New Orleans- based 5th U.S. Circuit Court of Appeals. Swearingen’s appeal “might be the very case” for the Supreme Court “to recognize actual innocence as a ground for federal habeas relief,” Wiener wrote.

Swearingen was sentenced to die for the murder of 19-year- old Melissa Trotter, a college student who disappeared on Dec. 8, 1998, and was missing for 25 days before her body was discovered in Sam Houston National Forest, north of Houston.

Swearingen, who knew Trotter and was seen with her on the day she disappeared, was considered a suspect early in the police investigation. He was arrested Dec. 11, 1998, on unrelated warrants and has been in jail ever since.

Swearingen’s lawyers say forensic specialists -- including the medical examiner who testified for the prosecution -- have looked at evidence that wasn’t considered at Swearingen’s trial and now agree that Trotter’s body was placed in the forest no earlier than Dec. 18, 1998, a week after Swearingen’s arrest.

More than that, Swearingen’s lawyers say medical examiners who looked at tissue samples say Trotter’s internal organs were in a condition suggesting that she was killed no more than several days before her body was found.

The Innocence Network, an umbrella group of more than 60 organizations that helps prisoners uncover favorable evidence, said in a friend-of-the-court brief that Swearingen has “an airtight alibi -- he was in jail when the victim was murdered.”

Imposing the death penalty on someone who isn’t guilty of a capital crime, Swearingen’s lawyers said, would violate the Eighth Amendment’s ban on cruel and unusual punishment and the 14th Amendment’s due process protections.

Texas authorities said strands of Trotter’s hair were found in Swearingen’s truck, and fibers matching Swearingen’s jacket, bedroom carpet and truck upholstery were found on Trotter’s clothing. Cleaning Swearingen’s trailer after Trotter’s body was discovered, the suspect’s landlord found part of a torn pair of pantyhose that, prosecutors said, matched hosiery used to strangle the victim.

Swearingen’s case involves rules for habeas corpus petitions, which let federal judges intervene in criminal cases if there is reason to believe an inmate’s rights have been violated.

For readers interested in more detail, Jordan Smith at the Austin Chronicle last year had an excellent, detailed article explicating the new forensic evidence in the case.

The question is, can habeas corpus reviews by appellate judges only examine procedural questions or if defendants can ask for relief simply based on actual innocence, as in, "I didn't do it." The issue is most poignant in capital cases like Swearingen's where the punishment is permanent, but the implications are even more far reaching.

While it almost seems offensive to say the Constitution permits the execution of an innocent person, as Bloomberg News put it, "as the law now stands, even uncontested scientific proof of innocence isn’t a valid reason for a federal judge to stop an execution." It remains thus with this disappointing SCOTUS non-decision. (Of course, the Constitution's authors envisioned that a robust pardon power would prevent such injustices, but Goveror Rick Perry's pardon record provides only glimmers of hope that that might happen in Swearingen's case.)

In addition to the hot-button culture-war question of whether the Constitution permits executing the innocent, Swearingen's case also implicates Texas habeas law. The Court of Criminal Appeals belatedly ordered a hearing on the new scientific evidence, which coincidentally began in Houston yesterday. Reported the Houston Chronicle:

An expert entomologist testified for the defense Monday that insect evidence used in Swearingen's murder trial was improperly collected and stored, making it impossible to correctly estimate the time of death of the 19-year-old victim, Melissa Trotter.

The testimony came during a hearing ordered by the Texas Court of Criminal Appeals after it granted Swearingen a reprieve on July 28. He was set to die by lethal injection on Aug. 18.

State District Judge Fred Edwards must review new evidence dealing with heart and liver tissue and a due process violation. Edwards will submit his findings to the appeals court, which will decide if Swearingen should receive a new trial.

Depending on the outcome of that hearing, perhaps this case will give the CCA an opportunity to overturn their despicable misstep in Ex Parte Robbins.

What a remarkable case. SCOTUS chickened out on addressing perhaps the most high-stakes question in constitutional law, which leaves the matter in the hands of the Texas Court of Criminal Appeals, and thereafter quite literally at the mercy of the Board of Pardons and Paroles and Gov. Perry.

This is not the Todd Willingham case where new expert testimony was elicited at the last moment when courts and the Governor had little time to consider it. If Swearingen is executed despite hard scientific evidence of actual innocence, it will have happened following a slow, deliberate process whereby, from Washington to Austin, those responsible for ensuring the integrity of the system chose to look the other way.

SCOTUS expands scope of Fourth Amendment in divided 9-0 ruling

At the US Supreme Court case this week, the opinion in US v. Jones on GPS tracking of private vehicles was a fascinating piece of jurisprudence. Ostensibly a 9-0 decision, the only thing all nine justices agreed on was the bottom line that "the decision of the Court of Appeals must be affirmed," and none of them for precisely the reasons on which the lower court based its decision!

To make matters even more confusing, as Tom Goldstein pointed out at SCOTUSBlog, most of the mainstream media misinterpreted the opinion to say a warrant is required to use GPS tracking on a personal vehicle. But the ruling does not address the warrant requirement, only whether the GPS tracking constituted a "search."

What's the distinction? The Fourth Amendment only bans "unreasonable" searches without a warrant, but the courts have carved out wide swaths of legal territory where warrantless searches are routinely allowed. Wrote Goldstein, "The government probably conducts fifty times as many warrantless searches a day as warrant-based searches.  The government can sometimes conduct warrantless searches on less than probable cause, as when a police officer pats down someone on the street or TSA puts carry-on luggage through an x-ray machine." I'd also add consent searches at traffic stops and searches incident to arrest as examples of warrantless searches. They're far more common than search warrants, and there's no guarantee this ruling will require a warrant in every instance GPS is used by federal agents, particularly when it's used for a relatively brief period of time.

In an earlier post, Goldstein discussed the breakdown among justices as insightfully as I've seen on this case:

I think that the correct way to understand the case is to read it as having two separate majority opinions.  This odd alignment occurs because Justice Sotomayor agrees with both theories: she agrees with the majority “at a minimum” (Sotomayor op. at 1) and also seemingly agrees with the concurrence’s “incisive” conclusions (id. at 3).  Justice Sotomayor does not formally join the Alito opinion, but her sympathy for its finding of a Fourth Amendment “search” in GPS monitoring is fairly obvious, as she expresses a broader view of privacy than any other member of the Court.

Here is the upshot.  Five Justices join the holding of the “majority” opinion (per Scalia) that by attaching and monitoring a GPS device the police conduct a “search”; four Justices (those in the Alito concurrence) reject that view.  Five Justices join or express their agreement with the portion of the “Alito” opinion concluding that the long-term monitoring of a GPS device violates a reasonable expectation of privacy; four Justices (those in the majority, minus Sotomayor) leave that question open.

Votes on Fourth Amendment questions tend to defy partisan makeup. In Jones, basically court conservatives and Sotomayor sided with Scalia for the majority opinion expanding the Fourth Amendment's scope, while Alito teamed up with those considered the "liberal" wing to denounce the expansion and critique Scalia's judicial activism.

Seldom do 9-0 rulings reveal such sharp, underlying disagreement. But that's not the biggest story coming out of the case, which surely marks one of the most important moments in Fourth Amendment jurisprudence in the last 50 years. As Orin Kerr pointed out at the Volokh Conspiracy, Scalia's majority opinion articulated a new test for what constitutes a search, reaching back to historic court precedents based on property rights as opposed to modern jurisprudence based on a "reasonable expectation of privacy," first articulated in the Katz decision in 1967. That case, which dealt with an eavesdropping device planted in a phone booth (ask your parents or watch an episode of Dr. Who if you don't know what that is), found that “the Fourth Amendment protects people, not places” abandoning the "trespass" model.

Scalia's opinion, though, demands that a defendant's "Fourth Amendment rights do not rise or fall with the Katz formulation" and makes the claim that "Katz did not narrow the Fourth Amendment’s scope." That's a matter of opinion and I surely disagree with it. I think Katz significantly narrowed the Fourth Amendment's scope by placing the focus almost solely on "reasonableness," and that this opinion reinforcing other aspects - in particular, the enumerated, protected places and items - represents a welcome corrective, broadening the Fourth Amendment's scope instead of narrowing it for the first time in decades.

Regardless, according to Scalia's most recent pronouncement, "the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test." So going forward, the court has effectively added a new definition of what is a search while keeping the old one intact, expanding the scope of the Fourth Amendment in some as-yet-to-be-defined way.

Though I happen to agree with Scalia's policy choice in this case, it's pretty clear he's the one adding to Fourth Amendment jurisprudence, expanding the definition of a search beyond its Katz-based limits. Justice Alito called the majority opinion "unwise," declaring that "It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial." For Alito, as the court had expressly declared in its Kyollo ruling, the Katz opinion “decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property,” which is certainly how this non-lawyer always understood it. While IMO Alito's concurrence accurately reflects the trajectory of Fourth Amendment stare decisis, Scalia's back-to-basics approach revitalizes aspects of the Fourth Amendment that the Katz approach brushed past too breezily in the name of reasonableness.

Justice Sonia Sotomayor received a great deal of attention for her concurrence, in which she expressed the fear that “GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may 'alter the relationship between citizen and government in a way that is inimical to democratic society.'” (I'm glad somebody said it!)

Even "more fundamentally," wrote Sotomayor, "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Hear, hear! That indeed is the great dark cloud looming over Americans' privacy frontier. Too bad the court's second-most junior justice couldn't get any of her colleagues to sign onto the sentiment that the court should address the question.

Just to mention it, for us here in Texas this ruling only applies to federal agents, as we already have a requirement that law-enforcement get a court order before placing a "mobile tracking device" on your car.

MORE: From Lori Andrews at The Crime Report. Here's a related editorial from the Houston Chronicle.

Roundup: Lightning strikes, news flashes, and principle ducks for cover

A few odds and ends for your holiday reading pleasure:

When lightning strikes
Williamson County District Attorney John Bradley told the Dallas News that the Michael Morton DNA test results hit him like a "lightning bolt." Though they didn't invoke the road to Damascus, they did say the Williamson County DA now "testifies to a conversion." Declaring, “We need to leave the window open a little bit more,” Bradley says he hopes speaking up will influence how other prosecutors approach post-conviction DNA cases: “I finally decided that it was more important that I overcome my concerns about people’s opinions about my shifting of my personal opinions, because I saw that it has public value in helping other prosecutors, I hope, adjust their point of view.” Abel Reyna, are you listening?

Police, distracted driving and civil liability
Austin PD accounts for the largest proportion of payouts in civil suits of any city-owned department in the capital, including the electric utility and the airport. Chief Art Acevedo blamed distracted driving on a significant number of settlements related to automobile accidents involving police officers: “They're in the patrol car environment where there is a lot of things going on. You've got the computer going on, you've got the radio going on. They're looking where they're at. They're looking for violations, they're looking for risks.”

Spillover violence documented in Valley
Law enforcement reports the first, documented example of "spillover" cartel violence in the Rio Grande Valley, if you don't count gang members from the Texas side spilling over to commit violence in Mexico. This event is an important marker, but still a far cry from the absurdist, politicized claims made recently on behalf of Texas DPS and the Ag Department.

Drug violence in Puerto Rico
Lots of interesting detail in this story about which I wasn't aware; you never hear PR violence discussed in any of the "spillover" discussions.

News flash: Prison-industrial complex exists
Conservative columnist Jonah Goldberg offers a "small apology" to his ideological foes, admitting to the existence of "a prison-industrial complex" he'd "long thought" didn't exist. He sees it as dominated by public-employees unions rather than private-prison companies and other such corporate-welfare recipients. For my part, I consider both special interests to be partially culpable for the situation, and many other elements besides. These are not mutually exclusive factors.

MSM scorns principle in criminal-justice debates
A frequent theme on this blog is that, despite how they're framed in the mainstream media, criminal-justice issues seldom fall along partisan nor strictly ideological lines. Nowhere can that be seen more clearly than in the LA Times headline, "Criminal defendants find an unlikely friend in Justice Scalia." The story by David Savage is fairly typical of modern MSM criminal-justice coverage, demonstrating many of its shortcomings all in one place. Notice how, for example, a judgment in favor of the defense (e.g., on Confrontation Clause issues) makes US Supreme Court Justice Antonin Scalia a "friend" to criminals. All nuance is lost: You're either for criminals or against them, though bizarrely the headline complains of Scalia, "For him, there are no shades of gray." That's the pot calling the kettle black, indeed. The newspaper quotes a law professor explaining, "This is not a left-right split. This is principle versus pragmatism" (though Grits would argue that some of Scalia's most controversial assertions on criminal justice have been profoundly pragmatic). But the issue is presented as though judges basing decisions on principle - as opposed to the convenience of government bureaucrats or the structural biases of the press - is somehow a bad thing. Perhaps, in light of the string of modern DNA exonerations and the lessons learned by John Bradley mentioned above in the top item, 21st-century journalists shouldn't be so quick to dismiss every effort to instill fairness or adhere to principle in the justice system as somehow coddling criminals? Just a thought.

Which devil do you want to dance with? Do conservatives prefer pot or national health care?

This cracks me up: Mother Jones reports that the central arguments which will be considered by the US Supreme Court in favor of "Obamacare" hinge on the high court's past judicial finagling to justify federal regulation of medical marijuana. Wrote Stephanie Menciner:

In both the DC Circuit and the 6th Circuit, the two appellate courts that have upheld the health care law, judges relied heavily on a 2005 Supreme Court ruling in Gonzalez v. Raich—a medical marijuana case. That case involved a California woman named Diane Monson who'd been growing marijuana in her backyard for medicinal reasons. (Monson was joined in the case by Angel Raich, a woman who'd also had her medicinal marijuana seized by federal agents.) The DEA swooped in one day and destroyed her plants, even though medical marijuana use in California is legal under state law. The high court found that the Commerce Clause gave Congress wide authority to regulate interstate commerce, even when that commerce takes place mostly in someone's backyard.

Monson had claimed the DEA's action was unconstitutional and a violation of the Commerce Clause because federal agents were moving to prohibit noncommercial, intrastate cultivation of a plant intended for personal consumption. The pot wasn't crossing state lines—it wasn't even being sold at all. That, the plaintiffs believed, made the weed beyond the reach of the feds.

The Supreme Court would have none of it. In a 6 to 3 decision, the court held that Congress could regulate backyard pot cultivation because it still constituted part of a very large, interstate market. It’s hard to see how the individual mandate doesn't square with that view of the law, given how enormous the national health care market is. Sixth Circuit Judge Jeffery Sutton, a George W. Bush nominee and a former clerk for Supreme Court Justice Antonin Scalia, wrote, "If Congress could regulate Angel Raich when she grew marijuana on her property for self-consumption, it is difficult to say Congress may not regulate the 50 million Americans who self-finance their medical care."

How's that for unintended consequences? If the US Supreme Court upholds the "individual mandate" in Obamacare, the Tea Party types will mainly have overreach by Big Government drug warriors to blame. The prevailing narrative has it that states rights were radically scaled back first by the Civil War, then Reconstruction and later the destruction of Jim Crow, all of which is true. But less frequently discussed is how, after that, the remnants of states rights were all but annihilated over the ensuing four decades in the name of the drug war, which is why they now are nonexistent when the same mechanisms used to justify the drug war are trotted out to impose national healthcare.

If movement conservatives had to choose, I wonder, would they prefer to end Obamacare but allow Californians to grow pot in their back yards, or would the urgent necessity to regulate medical marijuana justify living with federalized healthcare and mandatory coverage? Which devil do you want to dance with? Like many constitutional liberties, states rights, or its abrogation, is a two-edged sword.

Most SCOTUS judges seem inclined to require warrant for GPS tracking

"it must be unconstitutional if it's scary."

- Antonin Scalia, oral arguments, US v. Jones

(Updated/expanded 11/10) I've been reading the transcript (pdf) from yesterday's oral arguments at the US Supreme Court in US v. Jones regarding whether law enforcement needs a warrant to attach a GPS tracker to your car and continually gather location and other information. Others much more qualified than I have analyzed the debate, so see these folks for much meatier, more lawyerly analyses:

• Orin Kerr, Volokh Conspiracy: "Reflections on the Oral Argument in United States v. Jones, the GPS tracking case," and "The two questions of Jones, and the potential difficulty of finding the proper voting rule"
• Lyle Denniston, SCOTUSBlog: "Argument recap: For GPS, get a warrant"
• Warren Richey, Christian Science Monitor: "Is GPS tracking of suspects too Orwellian?"
• John Biskupic, USA Today: "High-court case on GPS surveillance could break new ground"
• Julia Angwin and Scott Thurm, Wall Street Journal, "Judges weigh phone tracking"
• Check out photos from someone who camped out overnight to hear the SCOTUS arguments.
• See various additional MSM coverage.

A few non-lawyerly things that jumped out at me:

First, there seemed to be wide agreement on the bench that GPS trackers on one's car should in most instances require a warrant, the only question being what exact rule should be enacted to limit the "plain view" exceptions that apply, say, with surveillance (electronic or physical) while driving along a public street. Orin Kerr was in the room and said he thought it was too close to call. Lyle Denniston, otoh, seemed to think most would go for a warrant requirement. My own prediction from afar, fwiw, Justice Scalia, Roberts and Alito will side with the liberal wing of the court to require a warrant under circumstances more prescriptive than this correspondent would prefer.

Second, Antonin Scalia seemed adamant that there was "unquestionably a trespass" involved in placing a tracker on a vehicle, which by definition makes it a "search," and most justices seemed to agree with him. Scalia seemed less convinced, though, as did the court, on whether the ongoing tracking function after the device had been placed constituted a "seizure."

A notable Scalia line: "you can say that there is a trespass for the purpose of obtaining information, which makes it a search. But I don't see how it's a seizure. A seizure, you have to bring something within your control. You have to stop the person or stop the vehicle. What has been seized when you -- when you slap a tracking device on a car?" I'm not completely sure how that distinction between search and seizure is practically important in this case, but it could be in the future. As I understand it, placing the device on the car may be a "trespass," hence a search, by Scalia's reasoning, but the ongoing broadcast of your location may not "seize" anything when your vehicle is in plain view from public vantage points). That said, it appears the search v. seizure issue need not be resolved, necessarily, to secure a court majority in this case.

Chief Justice John Roberts seemed (from the transcript) surprisingly, personally engaged on the subject, asking pointedly whether the state's advocate feels he is "entitled" to put a GPS tracker on the cars of the nine SCOTUS justices and "monitor ... our movements for a month." The attorney, Michael Dreeben, wouldn't immediately answer with a straight "yes" or "no," but Justice Roberts summarized his answer as "So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution." There were six different references during the questioning to George Orwell's novel 1984, including notably Justice Kennedy.

Justice Ginsburg asked what the difference between having a GPS attached to your car and living in London where virtually everywhere you go on the public streets you're under the watchful eye of CCTV? Good question. Counsel for Mr. Jones said he would find living in London under such circumstances "very scary," to which Scalia replied sarcastically, "it must be unconstitutional if it's scary."

Folowing up on the London surveillance theme, Justice Kennedy asked Jones attorney: "Suppose the police suspected someone of criminal activity and they had a computer capacity to take pictures of all the intersections that he drove through at different times of day, and they checked his movements and his routes for 5 days. Would that be lawful?" Mr. Leckar replied yes, under existing Supreme Court precedents, because there was no "physical intrusion" as in his client's case.

Justice Kagan at one point offered up a futuristic vision worthy of a Sci-Fi channel special, hypothesizing "a little robotic device following you around 24 hours a day anyplace you go that's not your home, reporting in all your movements to the police, to investigative authorities." She scoffed at "the notion that we don't think that our privacy interests would be violated by this robotic device," though that's a logical extension of the court's precedents on collecting evidence in so-called plain view.

Alito rightly observed that, because of past Fourth Amendment exceptions carved out by the court, it's pretty clear such comprehensive surveillance would be allowed, so the "heart" of this particular case is whether the state must trespass to place the GPS tracker. On that point, led by Scalia, the court seemed inclined to agree that that a trespass had occurred. Alito and Roberts' critical comments about the state's position made it seem to this writer like the majority will favor a warrant requirement for the search, perhaps disagreeing on to what extent there is a seizure.

Justice Breyer summed up the stakes well in this comment to the state's attorney: "if you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States." Bingo.

I generally agree with Justices Alito and Scalia that this is a line that legislatures should be drawing, though that preference shouldn't be used an excuse for SCOTUS failing to update its jurisprudence to match modern, high-tech reality. Fourth Amendment jurisprudence in modern courts has become degraded and unreliable. To combat the decline of Americans' right to be free from "1984"-style surveillance, which seems to leap past minimalist, low-tech, police-friendly SCOTUS rulings at every turn, legislatures need to actively rebuild Fourth Amendment principles from the ground up in the so-called laboratory of the states. The courts can't or won't do it, so legislatures must. That said, as Jones' attorney Stephen Leckard said to the court, "In this particular case I could probably give you 535 reasons why not to go to Congress." Ain't that the truth?

Finally, I was taken by Scalia's argument that, while normally the right to privacy is considered an expansion of the Fourth Amendment, in this instance SCOTUS privacy rulings are being used to argue for weakening traditional warrant requirements: A shrewd observation. He declared: "it is one thing to add that privacy concept to the Fourth Amendment as it originally existed and it is quite something else to use that concept to narrow the Fourth Amendment from what it originally meant." Hear! Hear! You tell 'em, Tony!

The transcript (pdf) from the oral arguments is an fun read for anybody geeky enough to be interested in these subjects. Go here to see briefs and amici from both sides as well as prior rulings.

Story idea: I know Grits has quite a few MSM readers, so for those of you in the press reading this, a great way to localize this story between now and the court's ruling sometime next year would be to find out if your local PD or Sheriff uses GPS tracking, what are their departmental policies, how many such trackers do they have, interview judges on whether local practice requires warrants, etc.? I suspect the majority of Supreme Court justices will find that GPS tracking of this type requires a warrant, so a story now on current uses of the technology puts you in a position to follow up next year to find out how locals are changing their ways, if and when the Supreme Court limits the practice.

Related:

• Whether SCOTUS says GPS tracking is constitutional, markets may decide if it's viable
• Is the Fourth Amendment dead or just in a coma? Debating when to pull the plug

Onus on state, local departments to improve eyewitness testimony

The issue of eyewitness identification has been much in the news this week, with the US Supreme Court hearing oral arguments on the subject yesterday and, here in Texas, Sam Houston State University (SHSU) coming out with its draft of a model policy for Texas police departments on how to conduct eyewitness IDs.

Draft TX eyewitness ID policy released
Readers will recall that Texas passed legislation this year mandating law enforcement agencies establish detailed written procedures for eyewitness ID, directing a police training center at SHSU to develop a draft model policy. (In the interest of full disclosure, your correspondent lobbied for the bill at the Legislature on behalf of the Innocence Project of Texas and participated in a working group convened by SHSU on the subject.)

At present, 88% of Texas law enforcement agencies have no written policies on how to conduct lineups. Typically practices differ not only from department to department, but from detective to detective. Only a handful of Texas departments - notably led by Dallas PD - have policies that actually represent best practices developed through the scientific research. Under the statute, departments must adopt their own policies - either using the SHSU model or one of their own choosing - by September of next year.

To their credit, SHSU does tell agencies to use sequential presentation (showing photos one by one) instead of group photo arrays. Though language in the policy which describes "Conducting the photo array" fails to mention sequential presentation, in an appendix the explicit instructions to witnesses say, "The photos will be shown to you one at a time and are not in any particular order." One hopes that provision won't change - and preferably will be strengthened and included in the main body of the policy - after the end of the public comment period.

SHSU advocating the sequential method is good news because, as Patricia Kilday-Hart reported in the Houston Chronicle on Monday, law enforcement pushed hard for a model policy allowing group presentation. However in the latest, most comprehensive study in a long list of research on the topic (described here), group photo arrays were found to generate 50% more errors - 18% picked "fillers" in group arrays compared to just 12% with sequential presentation. It would have been hard for SHSU to claim they were recommending "best practices" if they suggested a method producing half-again as many errors.

Still problematic, though, SHSU suggests that "Because witnesses typically view perpetrators of crimes in three dimensions, a live lineup offering a three dimensional view is preferable." But that view flies directly in the face of research on the topic. In practice, even non-witnesses are able to pick suspects out of live lineups with greater frequency than chance because they pick up facial and body language cues based on fear or psychological stress from the person accused. Photos provide a more neutral medium. Further, particularly in smaller agencies, it's a LOT easier to find appropriate fillers in a photo array than for a live lineup. (See this video describing how photo fillers are compiled electronically by police in the UK.)

Given that the statute told SHSU to base its model policy on "credible field, academic, or laboratory research on eyewitness memory," Grits cannot imagine why they would "prefer" a live lineup method that's more likely to bias results. SHSU's original draft included no such preference, so this provision clearly resulted from lobbying by law-enforcement interests, though I don't understand the reasoning behind it.

At this point, Grits views obstructionist efforts by the police chiefs association and others in law enforcement as strangely at odds with those groups' own self-interest. That's because the Texas Court of Criminal Appeals earlier this fall ruled that a trial court abused its discretion by not allowing expert testimony on the credibility of eyewitness procedures, meaning that if agencies don't follow best practices they'll later find themselves embarrassed in court. If they use a group photo array, for example, police can expect an expert witness to tell the jury the chance of error is 50% higher than if photos were shown one by one. Given that, why not just get it right on the front end?

(If you want to comment on the SHSU draft policy, the email address is lemitresearch@shsu.edu.)

Little help expected from SCOTUS
Coincidentally, the US Supreme Court yesterday heard oral arguments on eyewitness procedures, though SCOTUSBlog reports that "the Court very likely will decide this case, Perry v. New Hampshire (10-8947), without overruling any of the eyewitness case precedents going back to 1957." Instead, a majority on the court appear to view this case as an opportunity to promote the "casting aside of the Due Process Clause as a barrier to unreliable criminal evidence," which is a disturbing and disappointing take on how that case should be decided. At The Crime Report this week, attorney and author James Doyle predicted just that outcome:

It’s true that the criminal justice system is absorbing the science of eyewitness evidence. But it is also true that different components of the system are reacting to the science in different ways and at different speeds.

The police are leading the way; judges are bringing up the rear. The real story that the Perry case may ultimately tell is that the courts are fighting a determined rearguard action aimed at holding off the full mobilization of the lessons of eyewitness science.

In Texas' case, Mr. Doyle perhaps overstates the extent to which "police are leading the way," but clearly he had his finger on the pulse of the Supreme Court. Preventing the "full mobilization of the lessons of eyewitness science" appears to be exactly where SCOTUS is headed.

That said, the question before them was pretty narrow. Noted SCOTUSBlog, "the only issue that the Court had agreed to review was whether the absence of any police manipulation of that witness was sufficient to have allowed the identification to be put before the jury." So it's possible this case may be decided in favor of the state without causing too much damage. But in an era when much common evidence in criminal trials has been called into question - from eyewitness IDs to flawed forensics - it will be unfortunate if SCOTUS undertakes a long-term project of reducing barriers to introducing unreliable evidence. (See the transcript from the case here [pdf]; Grits may have more to say on the subject once I've had a chance to read it in more detail.)

Bottom line: It's a good thing the state of Texas is working to bring science into the police station and the courtroom on this question, because the US Supreme Court seems highly unlikely to do so.

MORE: See coverage of the SCOTUS arguments from the Washington Post, the New York Times, the Los Angeles Times, and Slate. AND MORE: From the American Constitution Society and Amnesty International. The New York Times had a followup editorial arguing that "The Supreme Court should maintain the law’s focus on reliability — and require that courts keep out unreliable identification that is likely to prejudice a verdict."

See related Grits posts:

• Court of Criminal Appeals: Trial court abused its discretion by disallowing eyewitness ID expert
• Model policy under development on eyewitness ID procedures
• Slow but steady progress toward improving eyewitness identification
• SCOTUS to reevaluate eyewitness IDs
• How much do eyewitnesses really see?
• Eyewitnesses and the 'feeling of knowing'
• Eyewitnesses in staged test only 8% accurate
• More on the fallibility of eyewitness testimony
• Eyewitnesses miss big changes in their environment, like the person in front of them 
• Study: 88% of police and sheriffs have no written policy on eyewitness ID procedures, even fewer follow best practices
• Why Carl Reynolds would make a lousy witness

Whether SCOTUS says GPS tracking is constitutional, markets may decide if it's viable

Fourth Amendment fans and foes alike are awaiting oral arguments this fall in United States v. Jones, which will determine whether police require a warrant to surreptitiously put a GPS tracking device on your car.

Obviously, Grits thinks a warrant should be required, but frankly a warrant requirement isn't that great a barrier and the case made me wonder about technology to identify such devices. It turns out for $500 bucks you can purchase a device that will locate GPS trackers as well as wiretaps, wireless taps, and even hidden cameras. Ironically, with SCOTUS focused on the use of GPS trackers by the government, the manufacturer is promoting the device to protect against thieves:

Don't Give Thieves Access To Your Personal Information Or Possessions
Being spied on can be more than just embarrassing. Oftentimes, thieves use eavesdropping equipment or "bugs" such as sound amplifying devices for audio surveillance or hidden cameras for video surveillance to find out valuable information about your personal finances and possessions. Your private conversations can give thieves all the information they need to steal your identity, break into your home, or even abduct your children. Protect yourself with the Frequency Finder Bug Detector Pro.

As technology improves, I'd expect these device to become even cheaper. Certainly anyone engaged in serious criminal activity with a significant revenue stream can already afford one. But as sophisticated government surveillance methods are turned toward the general public, I wouldn't be surprised to see demand for such devices expand beyond the criminal class. Jason Trahan at the Dallas News recently had a story (Oct. 6, behind the paywall) about the expanded use of electronic tracking and surveillance by law enforcement, which opened:

Technology and security have collided in the decade after 9/11.

The result is an array of eavesdropping tactics, some of which have been used with great success in Dallas terrorism and corruption cases.

Vehicle trackers, wiretapping, cellphone GPS tracking are the updated versions of old-school, but still effective, tactics such as “sneak and peek” operations and simple covert surveillance.

“This stuff can be used to catch bad guys,” said Andrew Blumberg, a University of Texas math professor who studies technology and digital privacy issues.

“But the fact that you can do good things with it doesn’t outweigh the potential for abuse,” he said. “We need to have a national conversation about what’s acceptable,” he said.

That conversation got more complicated recently. This summer came the revelation that spy agencies, which generally do not need court warrants for their work, have also turned their attention stateside. Long prohibited from monitoring U.S. citizens, unless they were working with a foreign power or group, government organizations such as the National Security Agency may be using cellphone data to track more people’s movements here.

“There are certain circumstances where that authority may exist,” was the cryptic answer NSA general counsel Matthew Olsen gave the Senate Select Committee on Intelligence in July during his confirmation hearing to head the National Counterterrorism Center.

Olsen was asked to elaborate, but the details are classified. The exchange has stoked the debate on how far the government can go in watching, listening to and monitoring the activities of its bosses: the American people.

It's little wonder, then, that the manufacturers of the device mentioned above are actually suggesting a business model for people to make money with their product:

Make Up To $900 In 3 Hours Debugging Homes Or Businesses Of Eavesdropping Devices & Hidden Cameras
For every "Bug," "Telephone Tap," "Spy-Cam" and "GPS Tracking Device" that is sold, there are 20 - 30 people out there that are afraid that they are being secretly watched and/or listened to. If you've ever thought about entering one of the most interesting, exciting and extremely lucrative businesses around today, look no further. The Counter Surveillance industry is exploding with opportunity. The universal desire to escape this surreptitious Eavesdropping has now created a fantastic opportunity for individuals and firms that can once again restore this rapidly vanishing privacy. And now you can do it all with this tiny pocket sized device.

I think they're right that the diminishing arena of personal privacy, particularly in public spaces, over time will create greater demand for "counter-surveillance" devices and services. I could even see auto manufacturers advertising devices that identify GPS trackers as an add-on feature in new vehicles for buyers who place a premium on their personal privacy. If one actually thinks your conversations, location or personal information are valuable enough for someone to engage in electronic surveillance, $500 is a relative bargain to prevent it. Indeed, as government and private-sector use of surveillance technology grows, and as this kind of counter-surveillance technology becomes more common and less expensive, I can see the day coming when these types of devices are as common as burglar alarms or other such security devices.

The Supreme Court will decide soon whether GPS tracking without a warrant is constitutional. But in the end, it may be the market that decides whether the tactic is viable.