I’ve seen in the last few days a couple of news pieces that give me heartburn. As I’ve stated before, in studying the legal history of gun control in depth, I’ve read a lot of legal decisions and analysis of those decisions, and I’ve read a lot of law. I am convinced that Rick Cook was on to something when he said:
The key to understanding the American system is to imagine that you have the power to make nearly any law you want. But your worst enemy will be the one to enforce it.
It’s worse when our congresscritters pass laws without knowing what’s in them in the first place. Add to that a Court system that, in the words of 9th Circuit Chief Judge Alex Kozinski:
The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.
The first story comes from California’s Supreme Court in the case of People v. Diaz where:
We granted review in this case to decide whether the Fourth Amendment to the United States Constitution permits law enforcement officers, approximately 90 minutes after lawfully arresting a suspect and transporting him to a detention facility, to conduct a warrantless search of the text message folder of a cell phone they take from his person after the arrest. We hold that, under the United States Supreme Court’s binding precedent, such a search is valid as being incident to a lawful custodial arrest. We affirm the Court of Appeal’s judgment.
The Court’s reasoning is given:
One of the specifically established exceptions to the Fourth Amendment’s warrant requirement is “a search incident to lawful arrest.” (United States v. Robinson (1973) 414 U.S. 218, 224 (Robinson).) This exception “has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.” (United States v. Edwards (1974) 415 U.S. 800, 802-803 (Edwards).) As the high court has explained: “When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless search of the arrestee’s person and the area ‘within his immediate control’ . . . .” Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the “immediate control” area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved.
However, here’s what the dissent to that decision said:
The majority concludes police may search the data stored on an arrestee’s mobile phone without a warrant, as they may search clothing or small physical containers such as a crumpled cigarette package taken from the person of an arrestee. In my view, electronic communication and data storage devices carried on the person — cellular phones, smartphones and handheld computers — are not sufficiently analogous to the clothing considered in Edwards or the crumpled cigarette package in Robinson to justify a blanket exception to the Fourth Amendment’s warrant requirement. A particular context-dependent balancing of constitutionally protected privacy interests against the police interests in safety and preservation of evidence led the United States Supreme Court, over 30 years ago, to hold searches of the arrestee’s person reasonable despite the lack of probable cause or a warrant and despite substantial delay between the arrest and the search. Today, in the very different context of mobile phones and related devices, that balance must be newly evaluated.
The potential intrusion on informational privacy involved in a police search of a person’s mobile phone, smartphone or handheld computer is unique among searches of an arrestee’s person and effects. A contemporary smartphone can hold hundreds or thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and other documents, as well as records of the user’s telephone calls and Web browsing. Never before has it been possible to carry so much personal or business information in one’s pocket or purse. The potential impairment to privacy if arrestees’ mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great.
The case from which I took Chief Judge Kozinski’s “1984” quote was one in which law enforcement officers, without a warrant, attached a GPS tracking device to a suspect’s vehicle to record his every movement. The 9th Circuit said that was just fine. Now the California Supreme Court says that if the police want to dig through the hard drive on your laptop, all they need is to “lawfully arrest” you for any viable infraction of the law. If your laptop is with you, it’s fair game, even though had you left it at home, they’d need a warrant.
In an earlier case, Judge Kozinski wrote:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or…the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
I’d say they’ve made their decision, and that decision is statist.
Some members of the Left have been taking exception to the incoming Congressional Republican decision to read the Constitution on the floor of the House of Representatives tomorrow, and to pass a rule to require bills to cite their basis in the Constitution. What the Left objects to is the fact that the Right understands that the purpose of the Constitution was not only to establish the federal government, but to limit it, and protect the rights of The People. A Liberal Supreme Court “discovered” a right to privacy in the “penubras formed by emanations” from the guarantees in the Bill of Rights in Griswold v. Connecticut back in 1965.
But not, apparently, if you’re “lawfully arrested.” Or just driving around in your own car. I guess they’ve seen the error of their ways.
The second story is, on the surface, much less weighty. Actor and former TV host Gary Collins was arrested for walking out of a restaurant without paying. (I wonder if they searched his cell phone?) But here’s the part that grabbed my attention:
Cops quickly caught up with Collins and took him into custody on charges of defrauding an innkeeper, which happens to be a felony since the amount of the check was over $25.
According to Dictionary.com, a felony is defined as:
an offense, as murder or burglary, of graver character than those called misdemeanors, esp. those commonly punished in the U.S. by imprisonment for more than a year.
The man walked out on a restaurant tab. And why am I so bent about this? Because of one of those laws that was passed that apparently nobody read, but that will be enforced by your worst enemy: USC Title 18, Section 922(g)(1):
It shall be unlawful for any person … who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year … to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Walk out on a restaurant bill, lose your right to arms forever.
Does this make any sense to you?