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Join the conversation! There are now 21 comments on “Police vs Privacy pg 20
  1. Judicial Intern says

    I’m a judicial intern from a judge in a medium sized city on the Eastern Seaboard. My judge is extremely diligent with warrants by the standards of my city, more diligent than any other judge here I’ve heard of here. And he only reads the affidavits closely and puts the officers under oath. I never saw him interview an officer’s source before.

    Perhaps this varies on the size of a jurisdiction? We aren’t NYC, but our jurisdiction is still horribly understaffed and backlogged. Our judiciary does not have time to do more.

    • As with everything else in the law, it varies from jurisdiction to jurisdiction. In some places (including busy NYC), judges want to interview a first-time informant. In others, they don’t.

      In general, and especially in federal courts, it’s okay to get a warrant based just on the officer’s hearsay testimony about what the informant told him. So long as the “totality of the circumstances” establishes that the informant’s information is reliable, that’s enough.*

      What that means, though, is that the officers have to spend a lot more time and effort to corroborate details of the informant’s story. It’s less work for the judge, but more work for the cops. (And more work for me in drawing this thing.)

      *Some states still use the old Aguilar-Spinelli test: whether the informant is reliable and truthful, and whether he knows what he’s talking about. But it’s really all the same in the end. The practical real-life test is “Do we trust this information enough to bust down someone’s door?”

  2. Ryan says

    Love this site. This makes reading more complex law ideas and how a specific instance could be right or wrong from what the defendant did and/or had intent to do or not do much easier and more entertaining (horrible sentence structure there, sorry).
    I do have a related side note to the above comic- It is strange how a “No refusal weekend” is legal (wherein a police officer merely has to call a judge to get a warrant to test a driver’s BAC, based solely on the officer’s word. I’d hope that they are only calling if they have enough reason to call in the first place. However, it is advertised [perhaps incorrectly] that refusing is enough cause to allow the warrant to be issued, which to me doesn’t seem like enough for probable cause.) I would like some clarification upon this.
    Either way, love the comic, can’t wait for more, already bought from Amazon and donated. Keep ’em coming.

    Alright, after a quick Googling, it appears that this (1) is a Texas thing, and (2) is readily dismissed from 4th amendment protection, so it is only possibly protected by Texas law. Since I doubt you would be versed in the craziness that is Texas law (longest State Constitution, yeehaw!), would you be willing to give a quick rundown on why it isn’t protected by the federal amendments? (If not, obviously, don’t worry about it, it’s just confusing to me.)

    • “No-Refusal Weekend” is actually something coordinated by the federal government’s highway & traffic agency, and is really just a way of streamlining the warrant application process.

      The idea is this:
      (1) Drunk driving offenses are punished based on the percentage of alcohol in your blood (regardless of actual impairment, and irrespective of whether you had any way of knowing what your blood-alcohol level was).
      (2) Usually, this percentage is proven by a breathalyzer test (regardless of the fact that it’s questionable science at best).
      (3) You can refuse to give a breath test, in which case the police would need to get a warrant to take a blood sample (which as you can see is time-consuming and a pain in the butt for the cop).
      (4) If you refuse to give a breath test, the state suspends your license.
      (5) Some people would rather have a suspended license than a conviction based on a higher blood-alcohol level. So they refuse the breathalyzer and often get just the base-level misdemeanor or even a walk.
      (6) If the warrant process didn’t take so long, then cops would be more likely to get blood samples, and more drunk drivers would get convicted of more serious felonies for the extra couple hundredths of a percent of alcohol.
      (7) So this program streamlines the warrant process by having judges and prosecutors “on call” for quick warrant applications. The cop describes why he thinks you’re drunk, states that you refused a breath test, and if the judge thinks there’s probable cause (and it’s hard to imagine a situation where there wouldn’t be) then he issues the warrant.

      So it’s not a situation that is outside of Fourth Amendment protection. The warrant requirement is still in effect. It’s just a way of making it less “burdensome” on cops to get one, so that more drunk drivers get all the punishment the law can give them.

      But you’re right in pointing out that state constitutions and the federal constitution are different. They are. The federal constitution only provides a bare minimum of your rights — the states are free to give you more, but they’re not allowed to give you less.

      One problem that some states have had, as you also point out, is in missing the whole point of what a constitution IS. A constitution is only a framework, a set of basic rules and principles defining what the government can and cannot do, and on which the law itself is based. A constitution is not a set of laws and regulations. Some states don’t get this, and treat their constitutions as just another place to stick legislation. Sort of a “we REALLY mean THIS one” kind of thing. The worst offenders are other countries, however, which don’t come from a constitutional background, but have heard of the concept and figured they’d try it out. So they’re always having to amend their constitutions every time they change the law. That’s now how it’s supposed to work. Constitutional amendments are supposed to be rare, while legislation can change all the time guided by the constitution’s core principles.

      /rant

      • Yeah, I live in California. I think that says all that needs to be said.

        Honestly, I’d be okay with scrapping our doorstopper of a Constitution and having a constitutional convention to write a new one that isn’t quite so easily amended, but that’s never going to happen.

      • This is a tangent, but so is the whole constitution v. law discussion.

        The Texas Constitution was adopted in 1876 “by a convention dominated by Grangers, a reform group seeking the return of normality after a decade of Reconstruction. For the most part, the convention delegates had little education or experience in government. But they were honest and dedicated to the prevention of future abuses of the system. They determined that the surest way to control the government was to leave it no room to maneuver. So they wrote a constitution which spelled out, in minute detail, each operation of state government. The resulting Texas constitution is an unwieldy document, providing little flexibility or responsiveness to changing needs and times. And Texans seem to want it that way. A streamlined and more readable version of the constitution of 1876 was soundly defeated by the voters in 1975.”

        Gamso, Texas Government Handbook (2 Ed.1988), 7.

        • And it does precisely what a constitution is supposed to do. Maybe more by way of limitation than by prescription, but it could never be mistaken for a mere body of legislation.

          • I wish you were right. Our Constitution is a giant pain; it (until this election) spelled out the maximum tax rates for Hidalgo county for example.

      • I live in Florida, and thanks to some recent driving laws, “No Refusal Weekend” lasts all year if you have a license.

      • What’s the deal with step 4? The state can’t get evidence which they requested and which you’re NOT required to give, therefore you’re punished? I know driving is technically a privilege, but that seems excessive, based on a mere assumption of drunkenness.

        Your “questionable science” comment is interesting. Kinda implies that washing out your mouth with vodka and then spitting it out could give a false positive reading. Or maybe binge drinking could give a false negative because it hasn’t gotten into bloodstream and lungs yet.

        • This is tangential, but I remember reading one news article (years ago) claiming some particular breathalyzer had been caught out on a programming mistake, where it was supposed to take a bunch of measurements and then average them for greater accuracy, but the programmer apparently didn’t understand how averages work: each time they got a new measurement, they set (new “average”) = (new measurement + old average) / 2.

          Which is almost as bad as just using a single measurement (the last one), but at least there’s no systematic bias (though if there was, it probably would’ve been caught sooner).

          Computer algorithms are making more decisions (and more important decisions) all the time. When they’re used to give evidence against you, I think we really need some way for defendants to check whether those algorithms are truly doing what the state claims. (We also really need a way to make software with less bugs in the first place, but that’s even harder…)

          I’m inclined to say that whenever the government uses software for a purpose related to public safety, justice, or voting, they should be required to make the source code public and available for scrutiny. (If you don’t want your code to be public, don’t sell it to the government for those purposes.) That will presumably require us to pay more for the software (to compensate the developer for loss of secrecy), and it won’t completely solve the problem (scrutinizing source code is difficult and laborious), but I think it’s probably still a good trade-off.

      • Probably worth pointing out that as of June 2016, you no longer have the constitutional right to refuse a breathalyzer test, and depending on your state, refusing alone can land you in prison.

        • That’s not entirely accurate. We have to be careful with words here.

          Although in many states you’ve been allowed to refuse a breathalyzer test, we’ve never had an explicit right to do so. We’ve never had the right to refuse giving consent to any lawful search. If the cops have a search warrant, you can refuse to consent to their search all you want, but that’s not going to make that search any less permissible under the Fourth Amendment. Similarly, if the police are lawfully permitted to make a warrantless search under one of the dozen or so exceptions to the warrant requirement, that warrantless search is just as valid whether you gave consent to it or not. (Imagine the absurdity — Cop has reason to believe bad guy’s building bombs in his apartment. Cop: “I’m here to search your apartment. I’ve got a warrant.” Crook: “I don’t want you to. Go away.” Cop: “Curses, foiled again!”)

          Moreover, states are perfectly allowed to criminalize interference with a lawful search. If the cops come with a warrant, and you stand in the door and physically prevent them from entering, that’s something states are allowed to punish as a crime. Society’s interest in a lawful search outweighs whether or not you want the police to come looking, and in fact obstructing that search is seen as blameworthy enough to justify criminal penalties. Similarly, if the police are making a lawful warrantless search — say, a search incident to arrest — and you refuse to permit it, there’s no reason why states couldn’t punish that criminally as well.

          In the case you’re referring to, Birchfield v. North Dakota, 579 U. S. ____ (2016), the issue wasn’t whether we have a right to refuse consent to a search, but whether DUI breathalyzers and blood tests count as lawful warrantless searches.

          The Supreme Court ruled that breathalyzers are minimally invasive, outweighed by society’s need for the evidence, and if you think of them as a Search Incident to Lawful Arrest then they’re reasonable enough to be allowed without a warrant. The SILA doctrine (covered later in this chapter) is concerned partly with officer safety and partly with evidence being lost to police. Its bottom line is that they can search your “wingspan” for weapons or evidence, once you’re arrested. Your breath is in your wingspan, it’s minimally invasive to gather it, and the alcohol evidence it contains would be gone by the time they could get a warrant. So the breathalyzer counts as a lawful warrantless search incident to arrest for DUI.

          Because the breathalyzer is a lawful search, and society has a strong interest in gathering the evidence it provides (because drunk drivers are dangerous assholes who destroy lives and families at random), the Court held that states are perfectly justified in criminalizing refusal of the search.

          The Court drew the line at drawing blood, however. Contrary to the breathalyzer, a blood test is highly invasive, actually puncturing your body to take bits of you as evidence. Yes, there’s still the state interest in getting the evidence before it’s metabolized out of your system, and yes, it could fit within the SILA exception. But there’s a less-invasive option: the breathalyzer. So it’s hardly “reasonable” to allow it when there’s a less invasive option. Only reasonable warrantless searches are permitted by the Fourth Amendment, so they need a warrant to get a blood test.

          Because a warrantless blood test is not lawful, the states are not allowed to criminalize your refusal of a blood test. They’re still allowed to impose any civil penalties like denial of your license to drive, etc., but they cannot impose criminal penalties for it.

          So you never had the constitutional right to refuse a lawful breathalyzer or blood test. The Court has simply clarified that one is lawful without a warrant and the other is only lawful once they’ve gotten the warrant.

          This may be a distinction without a difference. More states are permitting officers to “phone in” warrant applications during the DUI stop itself. Some jurisdictions also step up judge availability on big DUI weekends, to make sure warrants are easy to get in time. And as Sotomayor pointed out in her dissent (saying don’t split the baby, get warrants for both), when the cop wasn’t on a DUI detail it can even take longer to get the breathalyzer than to get a warrant. Thomas’s dissent (saying don’t split the baby, don’t require warrants for either) truthfully observes that warrants would be so standardized and automatic that judges wouldn’t really be adding any filters or judgment, essentially becoming a pointless rubber-stamp step. But difference or not, the distinction stands.

          This case does change other important things, however. Most are not at all in law enforcement’s favor. Until now, some states would require consent to a blood draw if you refused a breathalyzer, and they can’t do that now. States would impose enhanced sentences if you were convicted of DUI after refusing a breathalyzer, and they can’t do that now. Actual warrants for blood draws have always been kinda rare, and absent phone-in procedures some departments may switch to relying on the breathalyzer alone — which is much flimsier evidence, and would lead to fewer convictions. Alcohol is only one kind of impairment, and there’s no breathalyzer for drugs, so the warrant requirement for blood tests may (absent phone-in) make it harder to get evidence before it’s metabolized away in some cases.

          There is at least one change in law enforcement’s favor. Until now, the common wisdom was to refuse a breathalyzer and take the lesser penalty (typically an automatic loss of license) if you were at risk of blowing high enough to warrant a serious charge. That was dubious advice to begin with, but the repeat offenders — the ones law enforcement is really trying to go after — were the ones most likely to use that tactic. Now it’s no longer an option.

  3. Talgrath says

    I don’t know why nobody picked up on this, but 420 Maple Lane is an excellent reference to the 420 holiday/everyday celebration of marijuana.

  4. KW says

    No handcuffs? What’s her current status?

    Also, looks like the women are posing more than walking. Fan service?

  5. Andrew M. Farrell says

    If many of a judge’s warrants are found to be overturned, what consequences do they face?

    What about something like the FISA court where a warrant is never used in a criminal case?

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