Michigan Court of Appeal Issues Strong Decision Restricting Government Drone Use

I learned from Greg McNeal's Twitter thread (and related blog post) of an interesting opinion issued by the Michigan Court of Appeals last week in which the court found that the use of a drone by a township to take aerial photographs of private property violated the property owners' reasonable expectations of privacy.

The case is Long Lake Township v. Maxon. A link to the opinion is here, a link to the dissent is here.

Summary of the Case

The township filed a civil action against the property owners, arguing that their property constituted an "illegal salvage or junk yard" in violation of town ordinances. The township relied on aerial photographs of the property taken in 2010, 2016, 2017, and 2018 that purportedly showed an increase in junk stored on the property. The township had used a drone to take the photos.

The property owners moved to suppress the photos, arguing that they had been obtained through an unlawful search in violation of the Fourth Amendment. In response, the township argued that the drone operator it had hired to take the photos had done so in a manner consistent with FAA regulations--noting that they had maintained a consistent line of site with the drone and that it was lower than 400 feet at all times. (A link to the FAA regulations that the township appears to be referencing is here, an FAA summary of the rules is here).

The court recognized that Michigan has a law that restricts individuals from using drones to capture photos, video, or audio recordings of other people in a manner that would invade others' "reasonable expectation of privacy."

The court first noted that in Kyllo v. United States, the United States Supreme Court had found that the use of a thermal imaging device on a home violated the Fourth Amendment. In Kyllo, the Court concluded:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

The Michigan Court of Appeals took pains to note that Kyllo's holding was not premised on whether the technology used was widely available--noting that other language in Kyllo stated that homeowners should not be "at the mercy of advancing technology" that might be able to see through walls.

The court then considered the cases, California v. Ciraolo (no Fourth Amendment violation where police conducted aerial observation of a defendant's yard from 1,000 feet up) and Florida v. Riley (aerial observation of greenhouse from 400 feet up did not constitute a Fourth Amendment violation). The court emphasized Justice O'Connor's concurrence in Riley, where she recognized that the plurality of the Court relied on FAA regulations governing how high the helicopter could fly, and concluded that compliance with FAA regulations alone does not determine compliance with the Fourth Amendment. Instead she found that "considerable public use of airspace at 400 feet and above" meant that Riley did not have a reasonable expectation that the curtilage of his property was protected from naked-eye aerial observation from 400 feet.

The majority of the Michigan Court of Appeals concluded that the use of the drone by the township was closer to the thermal imaging device used in Kyllo than the aircraft overflights in Ciraolo and Riley. The court noted that FAA regulations were relevant in this case because they demonstrated that drones were "qualitatively different from airplanes and helicopters," as they are smaller, more maneuverable, stealthy, and fly at lower heights. 

The court did not reach the determination of whether a drone overflight was trespassory, finding it unnecessary to do so. Instead, the court found that the determination that the drone use violated reasonable expectations of privacy was enough to establish a Fourth Amendment violation. The court also refused to craft a precise altitude test, instead concluding that "persons have a reasonable expectation of privacy in their property against drone surveillance, and therefore a governmental entity seeking to conduct drone surveillance must obtain a warrant or satisfy a traditional exception to the warrant requirement."

In a dissenting opinion, Judge Hood took issue with the majority's blanket distinguishing of Ciraolo and Riley. Recognizing that drones are smaller, Judge Hood noted there was no evidence that the photos captured were different than those that could be taken from a plane or helicopter at that altitude. Judge Hood further noted that the drone was flying in airspace in which the public could use drones, and emphasized that Kyllo involved technology that was not in general public use--not the case with drones which are generally available for people to use.

Analysis

Years ago, I wrote an article surveying state laws restricting law enforcement drone use. One of my main conclusions was that state-level litigation governing how law enforcement agencies could use drones and the evidence obtained from these drones, was necessary. Absent specifically-drafted legislating that put meaningful restrictions in place, the government would likely engage in broad drone use in light of Ciraolo and Riley. Such broad use could be restricted by laws, or by courts who could craft exceptions to the existing Fourth Amendment case law.

I concluded that leaving it in the hands of courts to carve out restrictions for government drone use (either through passing no laws or passing laws that simply reaffirm Fourth Amendment protections) was not the best approach, and that both privacy advocates and law enforcement advocates should support legislation. Legislation would permit evidence-based restrictions on particular types of drone use and leave law enforcement open to use drones in a manner that balanced potential privacy intrusions with the utility of new technology. These restrictions could be amended as technology develops. Courts, however, would not be in a position issue such carefully crafted restrictions, and would likely be faced with the options of broadly permitting government drone use, or stretching Fourth Amendment case law to craft restrictions that could not be amended or addressed by state legislatures.

This case is an example of the latter outcome. As far as I can tell, Michigan law does not restrict its law enforcement agencies' use of drones. Instead, the most the court cited was a law restricting private drone use--a law couched in broad language based on the Fourth Amendment concept of "reasonable expectations of privacy." As I argue in my article, laws like this provide no guidance for courts beyond what is already set forth in the case law, and are therefore have little to no practical impact. 

In the face of this dearth of meaningful restrictions, the court decided to craft a broad restriction of its own--a prohibition on all warrantless drone surveillance of private property. Law enforcement agencies in Michigan must now obtain a warrant before using a drone in this manner, or use a helicopter for such surveillance. This case is based on the Fourth Amendment, so the state legislature cannot write any laws to restrict the scope of the opinion. The only thing the government can do to try to undo this outcome is to appeal to the state supreme court.

Privacy advocates may cite this case as an example of why laws restricting government drone use are unnecessary. That would be a mistake. The dissenting opinion illustrates how courts could just as easily reach the opposite conclusion and permit government drone use. FAA regulations (which have developed since I wrote my article) now permit fairly flexible drone use--including altitude restrictions of below 400 feet--which may permit much closer imaging of private property. I suspect that other courts in similar situations may rely on Ciraolo and Riley to permit similar drone use.

In civil cases, a strong sign that you've reached a fair settlement is that both sides are unhappy with the outcome. The same is the case with drone restrictions. Privacy advocates would likely take a strong view of Fourth Amendment protections and would consider a legislative restriction approach to be a needless compromise. Law enforcement advocates would not want their ability to use new technology to be curtailed by laws or regulations. But using legislation to curtail specific restrictions on government drone use is the only way to balance the nuances of new technology with the blunt instrument of Fourth Amendment decision-making. Long Lake Township illustrates how failing to take this approach can come down against law enforcement interests, but its dissent should be just as much of a warning to those concerned with law enforcement overreach.

READ MORE - Michigan Court of Appeal Issues Strong Decision Restricting Government Drone Use

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Boating Under the Influence and Probable Cause

Here's some good news out of Iowa: it appears that incidents involving people boating under the influence of alcohol are on the decline. From this KCRG report:

A total of 78 full time Iowa Department of Natural Resources conservation officers cover Iowa's 99 counties. This summer those officers did get the help from 29 seasonal water patrol officers but that still means full timers have multiple counties under their care. And when you consider around 500 boats may be out on a typical holiday weekend just at Coralville Reservoir alone, catching someone boating under the influence can be a challenge.

. . .

"If a state trooper or deputy officer in the cities, they know 'okay they're going across the lines.' There's no lines on the water. There's no evidence left other than the wake," said [Iowa Department of Natural Resources conservation officer, Eric] Wright.

By late July at Coralville Reservoir only three people had been arrested this summer for the crime. If you think that number is low, you're not alone.

"There's been fairly heavy enforcement on Coralville itself and we're starting to see the effects of it."

Data obtained by I9 through an Iowa open records request shows BWI arrests at Coralville have been on the decline since at least 2014 when 33 people were charged. The numbers statewide show a similar story, arrests did spike however in 2015 when 47 people were arrested. Fast forward to July of this present year and that number drops to 29.

The consequences for boating under the influence are similar if you are caught driving a car drunk in Iowa but if you get a BWI there is nothing stopping you from losing your driving privileges out on the road. In fact, when I9 searched the names of people charged over the years with BWI we found several who also had OWIs on their record as well.

The report is a bit confusing -- particularly the second-to-last paragraph. It is unclear whether the 47 people were arrested statewide or in the Coralville reservoir alone (the context suggests that it is in Coralville alone). With that number in the mix, the claim that arrests have been on the decline since 2014 isn't accurate - rather the arrests seem to have been on the decline since 2015 (assuming 2016 had fewer than 47 arrests, but more than 29).

But I did not highlight this story or spend untold numbers of what could have been billable hours writing this post to slog through numbers. Instead, I was intrigued by Officer Wright's discussion of deciding whether to pull over a boat -- noting that unlike officers who decide to pull over a car, there may not be clear cut instances where the car crosses a lane line. While the Fourth Amendment restricts officers from the unreasonable seizure of vehicles, officers are permitted to stop a vehicle if they have reasonable, articulable suspicion that a crime has occurred -- or "probable cause." Most typically, officers can establish probable cause by observing a traffic violation, like failing to signal, crossing a lane line, or speeding. But what about boats?

A potential basis for stopping a boat is analyzed in depth in the Iowa Supreme Court case of State v. Pettijohn. There, the Court held that an officer's stop of a boat was constitutional because the officer reasonably believed that the operator of the boat was violating Iowa Code 462A.12, which prohibits the reckless, negligent, or careless operation of a vessel, water skis, surfboard, or similar device. The basis for the violation? The defendant was driving a boat while a passenger was dangling her feet in the water near the motor, which the officer knew used an unguarded propeller based on his knowledge of the type of boat that he observed. Section 462A.12 likely operates as a catch all, as officers can likely articulate reasons for stopping boats based on numerous circumstances, including boating in darkness without lights (assuming there aren't laws that already specifically address that), or unsafe speed (particularly with other boats present), or both!  See, e.g., Iowa Supreme Court Attorney Disciplinary Board v. Cannon (attorney suspended from practice of law for various prior alcohol/drug related offenses, including a boating while intoxicated offense in which he was stopped for accelerating "rather quickly" in a five mile per hour speed-limit zone at 10:30 p.m.).

Another potential basis for stopping a boat is mentioned, but not analyzed, in State v. Slade, where officers believed that a boat was over capacity, and stopped the boat for that reason. As it turns out, the boat contained 16 people, but only was designed to hold 14 people. Slade is notable because it involves "Party Cove" at the Coralville reservoir. Having grown up close to that location, were I to testify as an expert on the Fourth Amendment as applied to Iowa waters, I would likely conclude that the mere presence of a boat in that section of the reservoir constitutes probable cause to stop a boat on suspicion of boating under the influence. I doubt that the courts would agree with me, but that's just because the judges that make these important decisions haven't spent enough time out on the reservoir on the weekends.

But perhaps things have changed since I left Iowa.  KCRG notes that only three people had been arrested on the reservoir for boating under the influence by late July this year. This does not sound like the booze-soaked body of water of my childhood memories, and if the arrest numbers reflect a general trend towards less drinking and boating, then it's a trend that I welcome.

READ MORE - Boating Under the Influence and Probable Cause

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Fish, the Fourth Amendment, and the Scope of Consent

It's always a pleasant surprise to see legal disputes that involve fish for nonsensical reasons, particularly fish-related disputes that may be heard by the United States Supreme Court. Cases involving salmon are of particular interest (see, e.g. here and here). 

I was therefore thrilled to see this report by James Gill of the New Orleans Advocate on the case of Jacson Moore, who thought he could successfully smuggle marijuana inside of frozen salmon. Moore thought wrong:

Baton Rouge police were staking out the UPS depot in Port Allen in 2012 when they noticed a package from Oakland, California, which is evidently the source of many illegal drug shipments. The package was addressed to Moore, who has a police record that would heighten suspicions that drugs were inside. 

The police department, of course, has sniffer dogs that could have settled the issue, but K-9 was not called in. Neither was a search warrant applied for. The cops just kept tabs.
Moore retrieved the package from his doorstep, re-emerging a little later with a Styrofoam container he put in the trunk of his car. He then drove off on an erratic path that indicated he was “heat checking” — trying to make sure the cops weren't on his tail. But they were, and, after 15 zigzagging minutes, he was pulled over. 

A rule of thumb might be that an offender with contraband in his car is best advised not to consent to a search, but Moore did so after being told that the police who stopped him were investigating an armed robbery. He evidently figured that nobody seeking the fruits of a heist would look twice at a few frozen members of the finny tribe. 

When the cops did, he said the fish were a present from his aunt. Officers cut them open and found the dope. Moore also gave them permission to search his apartment, where they found more cannabis and a gun.

Moore argued that the search was unconstitutional, and while the trial court agreed, its decision was overturned on appeal. The Louisiana Supreme Court declined to hear the case although Justice Crichton and Justice Weimar dissented. Joe Gyan Jr. of The Advocate reports that Moore is now trying to appeal to the United States Supreme Court:

In a legal brief filed at the Supreme Court, Messina claims the officers did not have probable cause to believe contraband was in the car, and he says Moore's consent to search the car was not freely and voluntarily given because officers lied about investigating a robbery. 

Messina acknowledges that officers can use deception during interrogations, but he stresses that such interrogations must be preceded by police informing the suspect of certain constitutional rights, such as the right to remain silent. 

"There is a distinction between misleading a defendant once he has relinquished a Constitutional right versus misleading a defendant in order to cause him to relinquish a Constitutional right," he argues in the Supreme Court documents.

There had better be a bit more to Messina's argument, since police can lie in order to gain consent for searches or entry onto property. No less a Fourth Amendment stickler than Justice Warren held that officers can lie about their identity to gain access to property in order to find evidence of drugs.

This is not to say that officers' ability to deceive is unlimited, nor is it to say that Moore does not have a decent Fourth Amendment argument. Indeed, the officers' lie about what they were searching for (evidence of an armed robbery), and the scope of their ultimate search raises significant constitutional concerns. But this case is not so much one of deceit as it is a test of the scope of consent in the Fourth Amendment context.

Police officers can ask for consent to search a suspect's home, vehicle, or person. If officers obtain consent to conduct a search, incriminating evidence that they discover can be admitted at trial. There are limits to the consent exception to Fourth Amendment protection. For one, the consent must be voluntary. Additionally, officers cannot exceed the scope of the authority they are granted by the subject's consent. As Justice Stevens wrote in Walter v. United States:

When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization. Consent to search a garage would not implicitly authorize a search of an adjoining house; a warrant to search for a stolen refrigerator would not authorize the opening of desk drawers.

Moore consenting to a search of his vehicle puts him in a tough position, as the Court held in Florida v. Jimeno that giving officers consent to search a vehicle permits officers to search containers within the body of the car. A search of the trunk is a bit more complicated, though. From the Jimeno decision:

The facts of this case are therefore different from those in State v. Wells, supra, on which the Supreme Court of Florida relied in affirming the supression order in this case. There the Supreme Court of Florida held that consent to search the trunk of a car did not include authorization to pry open a locked briefcase found inside the trunk. It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag.

So under Fourth Amendment law officers can search a closed paper bag in a trunk, but (as the Court noted in some very strong dicta) not a locked briefcase in the trunk. What about the interior of vacuum sealed salmon that are inside a Styrofoam container in the trunk of a car?

The fish in Moore's case are far more analogous to a closed, locked container than a closed paper bag. Officers had to open a Styrofoam container, cut through vacuum sealed wrapping, and open up the fish before they found the drugs. Moore therefore has a strong argument that the officers went beyond the scope permitted by his consent to a search of the vehicle when they searched the fish in the trunk.

Moore's argument is strengthened by the fact that the officers said that they were looking for evidence of an armed robbery when they obtained Moore's consent. In granting the officers consent to search his vehicle for evidence of an armed robbery, Moore likely did not expect that officers would extend their search to the interiors of vacuum sealed fish in the trunk of his car, and has a strong argument that the officers' search went beyond the scope of the consent he granted.

Based on the facts that have been reported, the ideal outcome would be for the United States Supreme Court to grant certiorari and reverse the Louisiana Court of Appeals' decision. Based on the percentage of cases that the Supreme Court agrees to hear, however, I think that such an outcome is unlikely. Accordingly, Moore is most likely out of luck.

As a final note, while this post may be a bit last-minute for law students this semester, this case is a fantastic basis for a criminal procedure exam. Students studying for exams now (and next semester) should take note of this case and the many issues it raises. There may just be a few professors out there who think that this story would make a solid issue-spotter.

READ MORE - Fish, the Fourth Amendment, and the Scope of Consent

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No, It is Not Legal to Smoke Marijuana While Walking On the Sidewalk in Downtown Los Angeles

...or in any other California city or town for that matter. On November 8, California passed Proposition 64 (text of the Proposition here, analysis here) which legalized the recreational use of marijuana. The LA Times reports on the passage of Prop 64 here. From the LA Times:

The approval of the ballot measure creates the largest market for marijuana products in the U.S. It comes six years after California voters narrowly rejected a similar measure. Activists said passage would be an important moment in a fight for marijuana legalization across the U.S.

“We are very excited that citizens of California voted to end the failed policy of marijuana prohibition," said Nate Bradley, executive director of the California Cannabis Industry Assn. "Proposition 64 will allow California to take its rightful place as the center of cannabis innovation, research and development.”

Discouraged law enforcement officials said they will closely monitor implementation of the ballot measure.

At this point, it looks like the sites I typically link to for California laws have not yet been updated to reflect Prop 64's passage. I will add links to those sections when they become available. For now, the text of the news laws is available in the text of the proposition itself.

The central statute in Prop 64 is the newly created Health and Safety Code 11362.1 which states:

(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:
 

(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of marijuana not in the form of concentrated cannabis;
 

(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of marijuana in the form of concentrated cannabis, including as contained in marijuana products;
 

(3) Possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants;
 

(4) Smoke or ingest marijuana or marijuana products; and  

(5) Possess, transport, purchase, obtain, use, manufacture, or give away marijuana accessories to persons 21 years of age or older without any compensation whatsoever.
 

(b) Paragraph (5) of subdivision (a) is intended to meet the requirements of subdivision (f) of Section 863 of Title 21 of the United States Code (21 U.S.C. § 863(f)) by authorizing, under state law, any person in compliance with this section to manufacture, possess, or distribute marijuana accessories.

(c) Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.

What was I thinking with my extremely specific, negatively worded title? True, it has been a little off-putting that in the three days since Prop 64's passage I have:

1. Walked through a cloud of marijuana smoke to get to the front door of my office building in the center of downtown Los Angeles;
2. Walked past a young professional in a suit on the sidewalk in downtown Los Angeles in the early evening who was smoking marijuana while chatting with friends;
3. Had the privilege of being stuck behind a slow person taking up the entire sidewalk (which, in itself, should be a crime) who also happened to be smoking marijuana.

But all of this looks legal right?

Not so fast. Newly created Health and Safety Code section 11362.3 states:

(a) Nothing in Section 11362.1 shall be construed to permit any person to:

(1) Smoke or ingest marijuana or marijuana products in any public place, except in accordance with Section 26200 of the Business and Professions Code.

(2) Smoke marijuana or marijuana products in a location where smoking tobacco is prohibited.

(3) Smoke marijuana or marijuana products within 1,000 feet of a school, day care center, or youth center while children are present at such a school, day care center, or youth center, except in or upon the grounds of a private residence or in accordance with Section 26200 of the Business and Professions Code or Chapter 3.5 of Division 8 of the Business and Professions Code and only if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center while children are present.

(4) Possess an open container or open package of marijuana or marijuana products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(5) Possess, smoke or ingest marijuana or marijuana products in or upon the grounds of a school, day care center, or youth center while children are present.

(6) Manufacture concentrated cannabis using a volatile solvent, unless done in accordance with a license under Chapter 3.5 of Division 8 or Division 10 of the Business and Professions Code.

(7) Smoke or ingest marijuana or marijuana products while driving, operating a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.

(8) Smoke or ingest marijuana or marijuana products while riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation except as permitted on a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation that is operated in accordance with Section 26200 of the Business and Professions Code and while no persons under the age of 21 years are present.

Smoking marijuana is prohibited in any public place, unless the place is a business registered to sell marijuana (a quick summary of the exception in Business and Professions Code section 26200). This means that people walking down the sidewalk in a city or suburb or outside of a home or office building are in a public place and therefore violating Section 11362.3, which is an infraction (under the newly created Health and Safety Code section 11362.4).

Notably, while Section 11361.1 states that permitted marijuana possession or use cannot serve as a basis for search or seizure by law enforcement, Section 11361.3's prohibition on marijuana use in public and possession of open containers of marijuana in vehicles covers most conduct that would have served as the basis for such searches and seizures before Proposition 64's passage. Those who thought that Prop 64 would reduce incidents of search and seizure due to officers' detecting the scent of marijuana were therefore mistaken.

Those considering taking advantage of California's new marijuana laws should consider smoking marijuana as a combination of smoking cigarettes and drinking alcohol. You cannot smoke cigarettes inside of (most) businesses or (in Los Angeles) on restaurant patios -- and you cannot smoke marijuana in these locations either. You cannot drink a beer while walking down a sidewalk -- and you cannot smoke marijuana while walking down the sidewalk either. You cannot drive with an open container of alcohol -- and you cannot drive with an open container of marijuana either.

Would-be marijuana smokers should treat smoking marijuana as subject to the combined restrictions on alcohol and cigarettes, and should therefore avoid smoking in public -- particularly if they are in downtown Los Angeles during the early morning or evening hours when I am most likely to be outside. We'll all be better off that way.

READ MORE - No, It is Not Legal to Smoke Marijuana While Walking On the Sidewalk in Downtown Los Angeles

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Forget Stop-and-Frisk: The Trump Supreme Court's True Threat to Fourth Amendment Protections

When discussing the Fourth Amendment under Trump's upcoming presidency, commentators tend to remain fixated on Trump's remarks in which he calls for a universal stop-and-frisk program. (See, e.g., coverage here and here). I have already blogged that Trump's apparent proposal for a national stop-and-frisk program would be unconstitutional and it is unclear how Trump would implement such a program. Indeed, to do so would almost certainly require the commandeering of state authorities, which would violate the Tenth Amendment -- which Trump vowed to protect in a statement released earlier today.

If Trump appoints judges who adopt Justice Scalia's approach to the Fourth Amendment, this will likely lead to lower Fourth Amendment protections through limits on the exclusionary rule. The Roberts Court has steadily eroded this rule, which prohibits the introduction of evidence that is discovered as a result of a Fourth Amendment violation. Scalia was a notable opponent of the rule, and commentators noted that his death and eventual replacement could represent a possible turning point for the exclusionary rule.

Indeed, even without Justice Scalia, the Court in Utah v. Strieff held 5-3 that an officer's admittedly wrongful detention of a suspect did not warrant the exclusion of evidence discovered after the officer called in the suspect's name and found that there an outstanding warrant for the suspect. The Court held that the search incident to the arrest on the warrant was far enough attenuated from the initial, wrongful stop that the drugs found on the defendant's person were admissible.

If Trump appoints Justices like Justice Scalia who are hostile to the exclusionary rule, I expect that Strieff's logic will soon be extended to other common law enforcement scenarios. For instance, a Court with Trump appointees would likely uphold as constitutional a search in a case in which an officer stops a suspect in a "high drug area" without any other basis for suspicion, calls in the suspect's identity, finds an outstanding warrant, and discovers drugs during a search incident to arrest on the warrant.

Evidence of flagrant or systemic police misconduct -- which was absent in Strieff -- will also likely be absent from the case described above. Overworked defense attorneys who do not explore an officer's history of searches and seizures combined with carefully crafted police reports will reduce the chances of finding flagrant violations of the Fourth Amendment on a case-by-case basis. And I do not suspect that conducting studies on departments to determine the existence of systemic search-and-seizure misconduct will be high on Trump's list of priorities for the Department of Justice.

Those who are concerned about the future of Fourth Amendment protections should avoid getting too caught up in Trump's stop-and-frisk rhetoric. While Trump's flippant disregard for the Constitution warrants criticism and concern, Trump's Supreme Court is most likely to erode Fourth Amendment protections by following trends established long before Trump's presidency was on anybody's radar.

READ MORE - Forget Stop-and-Frisk: The Trump Supreme Court's True Threat to Fourth Amendment Protections

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Trump's Bold Plan for the Fourth Amendment

Politico reports on an exciting development in Donald Trump's policy proposals. When asked how he would address "violence in the black community," Trump was ready with this nuanced discussion of police procedures:

“I would do stop-and-frisk. I think you have to. We did it in New York, it worked incredibly well and you have to be proactive and, you know, you really help people sort of change their mind automatically,” Trump told the questioner. “You understand, you have to have, in my opinion, I see what’s going on here, I see what’s going on in Chicago, I think stop-and-frisk. In New York City it was so incredible, the way it worked. Now, we had a very good mayor, but New York City was incredible, the way that worked, so I think that could be one step you could do.”

The Politico headline says that Trump called for "national stop-and-frisk," so that's what I'll assume he said there.

I'm intrigued to see how Trump will manage to dictate local police policy from the national level, and how Trump will manage to overcome some procedural obstacles presented by a particular arcane 18th century legal doctrine. But if this is the same Trump that is going to "open up" libel laws, I doubt that pesky technicalities like the Constitution will be much of an obstacle.

Also, "you really help people sort of change their mind automatically?" Yeesh.

READ MORE - Trump's Bold Plan for the Fourth Amendment

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New Jersey's Distracted Driving Bill and Its Disturbing Implications for Probable Cause

USA Today reports:

A bill under consideration in the state Legislature calls to prohibit "any activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle on a public road or highway." That means no cup of coffee for those sitting in traffic, no munching on that breakfast burrito, no time to groom. (No, the law does not target coffee verbatim.) 

The bill is meant to target distracted driving, which plays a role in thousands of fatal crashes in the state each year. At least 3,179 fatal crashes were attributed to distracted driving in 2014, according to the state's Division of Highway Traffic Safety website. Distracted driving played a role in nearly 800,000 crashes between 2010 and 2014.

Here is a link to the bill itself. The new section the bill would create reads:

2. (New section) a. An operator of a moving motor vehicle shall not engage in any activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle on a public road or highway.

b. A person who violates this section shall be fined: 

(1) for a first offense, not less than $200 or more than $400; 

(2) for a second offense, not less than $400 or more than $600; and 

(3) for a third or subsequent offense, not less than $600 or more than $800. 

For a third or subsequent violation, the court, in its discretion, may order the person to forfeit the right to operate a motor vehicle over the highways of this State for a period of 90 days. In addition, a person convicted of a third or subsequent violation shall be assessed three motor vehicle penalty points pursuant to section 1 of P.L.1982, c.43 (C.39:5-30.5). 

A person who has been convicted of a previous violation of this section need not be charged as a second or subsequent offender in the complaint made against the person in order to render the person liable to the punishment imposed by this section on a second or subsequent offender, but if the second offense occurs more than 10 years after the first offense, the court shall treat the second conviction as a first offense for sentencing purposes and if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes. 

c. Except as provided in subsection b. of this section, no motor vehicle penalty points or automobile insurance eligibility points pursuant to section 26 of P.L.1990, c.8 (C.17:33B-14) shall be assessed for this offense. 

d. A law enforcement officer who issues a summons for a violation of this section shall record on the summons the specific nature of any distracted driving behavior observed.

3. This act shall take effect on the first day of the third month after enactment.

The bill's broad language of "activity unrelated to the actual operation of a motor vehicle in a manner that interferes with the safe operation of the vehicle" would likely give probable cause to any vehicle stop in which an officer sees a driver doing anything other than driving the vehicle. Eating a snack, drinking anything, engaging in animated conversation with a passenger -- all could plausibly fall under this law's broad language.

Admittedly, I suspect that many, if not most, stopped under this law will be warned rather than ticketed. But the broad language of this law would allow officers to justify traffic stops in just about any situation where they see the driver engaging in any non-driving behavior. This grant of substantial discretion may exacerbate racial disparities in traffic stops and could contribute to a disproportionate prosecution of racial minorities for crimes discovered following the stop, such as driving under the influence of alcohol or drugs.

I suspect that the "unfettered police discretion" concern will not garner many votes in opposition to this bill. But perhaps this argument, combined with the votes of those who want to drink coffee and drive, will prove to be enough to defeat this broad piece of legislation.

READ MORE - New Jersey's Distracted Driving Bill and Its Disturbing Implications for Probable Cause

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Fred Flintstone, World Records, and Rules With Shifting References

While the rest of the country was watching the Democratic National Convention yesterday, my attention was drawn to a far more dramatic series of events: an ongoing set of videos in which contenders attempt to seize the world record for the fastest drawing of Fred Flintstone.

This article at Cartoon Brew set this whole thing off. The article featured this video by Myron Smith in which he claimed to hold the world record for the fastest drawing of Fred Flintstone:



This prompted an enthusiastic response from Lev Cantoral, a former classmate and mock trial teammate of mine, who claimed to beat Smith's record in nearly half the time:



Which, in turn, prompted this awful response from Wyatt Duncan:



And this cynical, yet hopeful, response from Nick Maida:



Frankly, I don't know why anybody was watching the Democratic National Convention while this was happening. For my German-speaking readers, I think that part of this saga is covered here as well.

But this is a law blog, or at least, that's what I keep telling people, so what does this have to do with laws -- or rules of any kind? In this post, I will explore an initial question people may have: are these videos and purported records "official" in any way? Next, I will explore how these videos and the shifting quality of the drawings in them illustrate a criticism of viewing laws or constitutions as living documents with flexible frames of reference.


All of this Fred Flintstone madness made me wonder whether any of these videos are "official" world records of any kind. After a bit of searching, it appears to me that to be an "official" world record, the record needs to be sanctioned by some sort of organization. The most popular organization to do so is Guinness World Records.

Does Guinness recognize a record for fastest drawing of Fred Flintstone? To save you, dear reader, the time, I signed up for a Guinness World Records account under the guise of seeking to establish a new individual record. Once my account was established, I conducted a search of "Fred Flintstone" (both with and without quotes) and was unable to find a category of record for drawing the character. There was a form I could fill out to request a new category of record, but I declined to make this request in light of my relatively slow and shoddy drawing abilities.

As far as Guinness is concerned, there does not appear to be an existing record category for fastest drawing of Fred Flintstone. Sorry Wyatt. In theory, he, Lev, or I could put in an application and hope that the independent group of powers-that-be decide that hasty Fred Flintstone drawings are deserving of recognition. But as far as I know, nobody has done this yet.

So the contest isn't official by Guinness standards, It is, however, governed by rules of the people who wrote the initial article. The fine people at Cartoon Brew laid out this set of rules for those wishing to obtain recognition for a world record:

• must use a blank piece of paper
• must show paper to the camera during the attempt
• must draw Fred’s head and upper torso
• must follow form of current world record holder
• must provide video evidence

This is the legal landscape that Cartoon Brew created for the Fred Flintstone contest. Incidentally, these rules, and their operation as shown in the videos above, illustrate a problem with views of statutes or constitutions as living, evolving documents. While an evolving view may permit a law or constitution to adapt with changing technology, traditions, and social realities, allowing interpretation to become too depending on a shifting reference point may lead to the deterioration of the law's interpretation.

The "must follow form of current world record holder" rule illustrates this trend toward deterioration, as evidenced by Wyatt Duncan's attempt to beat Lev Cantoral's record. Cantoral's drawing was good -- should I have been presented with the finished product, I would have thought that it was a drawing of Fred Flintstone. Duncan's, on the other hand, was not.

But Duncan appeared to generate his abomination by relying on the template that Cantoral set. Duncan, accordingly, appears to have followed the rule that he follow the form of the current world record holder. If Duncan became the world record holder as a result, does this mean that a future attempt by Cantoral needs to follow the template of Duncan's poorly-rendered, eyebrow-less, armless horror of a Fred Flintstone?

The wording of Cartoon Brew's rules seem to suggest so, as the only reference point for the "form" of Fred Flintstone is that which was previously drawn. There is no mention of quality or standards (other than the vague, requirement that Fred's head and torso be shown), and, most disturbingly, there is no appointment of an outside law blog author as a third-party judge who can independently determine whether a drawing rises to a level of quality to be deemed a true representation of Fred Flintstone.

Accordingly, under the system Cartoon Brew created, this contest is destined to devolve into a series of shoddier and shoddier attempts -- a consequence that Maida readily acknowledged by referring to the drawings as "dumb little doodles." The legal system Cartoon Brew created has a dramatically-shifting frame of reference, which leads its rules into eventual meaninglessness.

How far removed is the Fred Flintstone contest from rules and laws based on what a "reasonable" person would do or expect? And if such laws are interpreted based on changing technology, traditions, and practices, will these laws break down in a similar fashion?  Will "reasonable" expectations of privacy under the Katz test for Fourth Amendment protections deteriorate in a world where developing technology and a vast increase in the sharing of information lead to the potential elimination of any sense of privacy? Does widespread distribution and use of infrared technology render Kyllo's prohibition on police use of the technology meaningless? Is the privacy of everything I type into an email or calendar reminder that is run by third party internet provider or website forfeit under Smith's third party doctrine?

As contestants continue to draw Fred Flintstone, under the overly flexible rules, the drawings will likely deteriorate until the world record holder's product is nothing more than a series of squiggles and blogs.  In the world of law, courts and precedent may serve as a third party adjudicator for what is reasonable. But if the definition of reasonableness is tied to social expectations, changing realities will necessitate a change in courts' rulings, lest they risk a loss of credibility. Precedent, grounded in reasoning that is subject to change, will ultimately lose its authority. This change may not happen in a day, but the shifting standards by which the laws are defined illustrate that laws and rules with flexible reference points are subject to change -- and that this change may not be for the better.

In the world of Fred Flintstone, I suspect that Lev Cantoral will muster the skill and speed necessary to bring the standards of these drawing back to something recognizable. One can only hope that judges and legislators in the legal world are able to fulfill their analogous role.

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