Last month, we posted on the senate hearings on whether the feds need to get a warrant before getting emails and other stuff stored in the cloud.  The Obama administration would rather let the feds continue to get such stuff without bothering to get a warrant, as they now can do under (very outdated) current law.  As we put it:

As the law currently stands, if an email is more than 180 days old, the feds are allowed to snag it without a warrant, under the 1986 Electronic Communications Privacy Act.  In yet another bit of Orwellian fractal weirdness, the ECPA was designed to ensure that online communications had just as much privacy protection as anything in the offline world.  (Given the erosion of Fourth Amendment protections in the brick-and-mortar world, a cynic might be tempted to crack that the ECPA has lived up to its expectations.)

And we quoted Sen. Patrick Leahy, who last year argued to drag law enforcement and the Fourth Amendment into the modern era:

Today, ECPA is a law that is often hampered by conflicting privacy standards that create uncertainty and confusion for law enforcement, the business community and American consumers.

For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending on where it is stored, and when it is sent. There are also no clear standards under that law for how and under what circumstances the Government can access cell phone, or other mobile location information when investigating crime or national security matters. In addition, the growing popularity of social networking sites, such as Facebook and MySpace, present new privacy challenges that were not envisioned when ECPA was passed.

Simply put, the times have changed, and so ECPA must be updated to keep up with the times.

Well, today Sen. Leahy proposed a new bill that might do just that.  The bill (pdf here) would get rid of that 180-day loophole, and require the feds to get a warrant no matter how old the email or data might be.

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Obviously, we’re in favor of that.  But this bill goes farther than that.  If adopted, this bill would also:

1. Prohibit cloud services from knowingly divulging emails or other stored data “to any governmental entity.” (We approve.)
2. Require the government to give notice to you within 3 days after your emails/data were searched pursuant to a warrant, including a copy of the warrant. The 3-day period can be extended on a showing of good cause similar to that in eavesdropping cases. (We approve.)
3. Permit the government to subpoena subscriber names, addresses, phone numbers, network addresses, phone call data, and payment info (including credit card data). (Can’t they already subpoena all this stuff already? To the extent this is nothing new, we have no opinion.  To the extent it’s new authority, we strongly disapprove.)
4. Prohibit the government from using your cell phone or iPad or what-have-you to get your physical location, without a warrant or FISA order or an immediate life-or-death/mafia/national security need. (We approve, except for the mafia exception. Mere “conspiratorial activities characteristic of organized crime” is a hole big enough to drive a busload of special agents through, and has nothing to do with immediate urgency.)
5. Prohibit the government from getting historical data of your physical location without a warrant or FISA order.
6. Require suppression of evidence obtained in violation of the statute. (We approve.)
7. Protect cloud services from lawsuit for complying with authorized government demands. (We approve.)

On the whole, not a bad bill.  There’s some room for improvement, as we’ve pointed out, but that’s what committee is for… right?

Interesting Fourth Amendment decision from the Supreme Court this morning, in a case which at first glance didn’t seem all that cert-worthy.  The facts are as run-of-the-mill as they come — an undercover buy-and-bust, the dealer ran into a building, arrest team followed in just as one of the doors slammed shut but couldn’t tell which of 2 apartments the guy went into, from the hallway they smelled dank weed burning, the smell was stronger by the apartment on the left, the cops banged on the door and announced themselves, the cops heard stuff being moved around inside and figured it was evidence being destroyed, the cops burst in and found significant amounts of pot and cocaine.

The first time we read the facts in this case, we couldn’t help wondering “seriously, what’s the problem here?”  We’re well aware that the cops’ story might not be entirely truthful, but on the facts as given there just didn’t seem to be grounds for suppression.  The cops are allowed to pursue a suspect into the hallway of an apartment building (here it was a breezeway, arguably even less private).  The cops were entitled to bang on the door that smelled of burning marijuana.  There’s no Fourth Amendment prohibition against the police banging on your door and shouting “police police police.”  On hearing sounds consistent with destruction of evidence, it’s pretty well settled that an exigency now existed.  That’s one of the dozen or so exceptions where society’s interest in something (here, preservation of evidence) trumps the right against warrantless searches.  So seriously, what was the problem?

The problem was that the police arguably created the exigency themselves.  If they hadn’t banged on the door and announced their presence, there wouldn’t have been any evidence-destruction sounds.  Can the police manufacture an exception to the warrant requirement, one that would not have existed otherwise, and then rely on that exception to conduct a warrantless search?

Ah, now it gets interesting.

Writing for an 8-1 majority in Kentucky v. King, Justice Alito neatly described the “police-created exigency doctrine” that some courts — though not the Supreme Court — have applied.  Though calling it a “doctrine” is pushing it.  Those courts do recognize the inherent chutzpah of letting the police create an exigency, and have come up with various rules excluding such evidence, but they do not agree on what the rule ought to be.

When the exigency is destruction of evidence, it’s easy to see the challenge to crafting a workable rule.  After all, when the emergency is a fear that evidence is about to be destroyed, that emergency is almost always caused by the police.  Few dealers start flushing their stash unless the police are about to discover it.  So it’s be absurd to have a flat prohibition on all exigencies that would not exist but for police conduct.  So the various lower courts tried to think of what more ought to be required.  By Alito’s count, there were five different rules out there.

The Court could easily have just said “there is no police-created exigency doctrine” and permitted the police to take advantage of any exigency, no matter who created it.  It wouldn’t be terribly cynical to say that such a decision would have been perfectly in line with the last forty years of Fourth Amendment jurisprudence.

But, notwithstanding the failure of some lower courts to figure this out, the Supreme Court has been lately chipping away at the unfettered exigency excuse — at least that’s how the Supremes themselves see it.  Take Brigham City and Fisher, from a couple of years ago.  We see these as part of a line of cases which establish the awful rule that pretexts are fine, so long as the pretext genuinely existed.  But Alito’s opinion this morning said the important rule is that the exigency must be genuine.  So while we are focused on the injustice of permitting pretexts, the Court is focusing on simply requiring that emergencies be real, and not merely plausible.

So looking at it that way, the Court is trying to do the right thing.  They’re choosing to ignore the unknowable of what the cop was actually thinking, and instead scrutinizing whether there was some objective and actual justification that happened to exist, regardless.  That explains much of their law since Whren.

And looking at it that way, acknowledging a “police-created emergency doctrine” would be the intellectually honest thing to do.  If police intentions are irrelevant, so long as a justification objectively existed, then it would be absurd to allow them to create a justification maliciously, secure in the knowledge that their intention is beyond scrutiny.

So the Supremes adopted this new police-created emergency doctrine (so we can dispense with the quotation marks).  Having done so, the issue remained to resolve the 5-way split below.  Given that police conduct is always going to be a cause of evidence destruction, what more must be shown if a defendant is going to obtain suppression in such a case?

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Alito made a very reasonable rule here.  Dismissing the suggestions of both sides as too extreme, he simply said there’s only a problem if the police created the exigency by violating the Fourth Amendment, or threatening to do so.  (Kentucky’s rule was unwieldy and irrelevant, looking to whether it was reasonably foreseeable to the police that they would have created the emergency, looking to whether there was enough basis to get a warrant, and looking to actual and ideal law-enforcement practices.  Whew!  And King’s rule would have precluded any entry when a reasonable person would have thought the police were about to enter.  Seriously.)

Alito’s rule sounds circular, but it’s actually quite elegant.  It sounds like “there’re no Fourth Amendment violation if the police didn’t violate the Fourth Amendment,” but so does the Plain View doctrine.  There’s more to it than that.  It’s more that “there’s no Fourth Amendment violation if the police hadn’t violated the Fourth Amendment to create the circumstance where this search now took place.”

So just as there’s no problem if the police are lawfully inside your house when they spot your counterfeiting press in the living room, there’s no problem if the police are lawfully banging on your door when they hear you repeatedly using your turbo-flush toilet.

It’s an easy rule to understand, and an easy one for courts to apply.  It’s even easy for cops to follow.  Not bad.

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Justice Ginsburg was the lone dissenter here.  She is afraid that, “in lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.”

The problem with that is, the police could knock and listen anyway.  Sure, they could sit on the apartment and make sure nobody leaves while some officers go take a few hours to get a warrant.  But there’s no reason why they couldn’t bang on the door and ask permission to come in, either.

And if they do that, and those inside start flushing away, well then the situation has now changed.  It’s no different than if they’d put a guard on the apartment while a warrant was sought, and when the tenants realized it they started flushing away.  In either situation, a warrantless search is going to be okay.

Wiretaps are arguably the greatest invasion of privacy that the government can do.  They’re listening in on private conversations, not intended to be overheard by anyone else.  So to get a wiretapping warrant, the government has to do more than for a normal search warrant.  There has to be more than just probable cause that they’re likely to find evidence of a crime.  Only certain crimes count.  There has to be good reason to do a wiretap as opposed to some other less-invasive investigative technique.  Only particular conversations can be sought, over particular phones.  Etc. etc. etc.

Not only is there a heavier burden to meet before a wire can be granted, the government has to comply with some very strict rules as they carry out the eavesdropping.  On that issue of particular conversations, for example, they have to do what they can to minimize the amount of non-relevant or privileged conversations that get listened to.  This is called “minimization.”  When it appears that a call isn’t pertinent (i.e., it isn’t evidence of a crime), or that it’s privileged (as a call with one’s attorney, doctor or spouse), then they have to stop listening and recording.  The call gets “minimized.”

The cops or agents who are monitoring the wire have to do more than just act in good faith.  Their minimization has to be objectively reasonable — the law only cares what an ordinarily reasonable person have thought in the circumstances, not what the cop himself happened to think.  So a properly-run wire is going to have minimization procedures that are spelled out at the beginning of the investigation, in writing, signed by every agent before they get to monitor any calls, with a reference copy there at the monitoring location just in case there are any questions later.  The prosecutor is going to be involved throughout, and it’s really the prosecutor’s responsibility to make sure that everyone knows what they can and cannot do.  It’s also the prosecutor’s job to review all the calls that were intercepted and, among other things, make sure that the cops are minimizing properly.

But what happens if the government doesn’t do that?  What happens if oblivious or malicious agents record and listen to all kinds of personal calls that have nothing to do with the crime they’re investigating?  What happens if a lazy or inexperienced prosecutor fails to nip it in the bud, or if a malicious prosecutor allows it to keep happening?

It’s an important issue these days, because the feds have been doing exactly that.

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As we’ve pointed out a few times, the feds have been all gung-ho for doing wires on white-collar stuff these days, but the white-collar teams aren’t exactly the most experienced at doing wiretaps properly.  For one thing, the feds hardly do any wires in the first place, comparatively speaking.  It’s just too much of a bureaucratic hassle to go all the way up the DOJ chain of command to get the bosses to sign off on one.  And staying up on one is even more of a hassle, because you’ve got to do all that in a compressed amount of time to renew the wire before it expires, while at the same time trying to manage the wire itself and figure out just what the heck is being intercepted and whether it means anything.  State-level wiretaps are much more common, and tend to be done by people with more experience in doing them.  Expediting the process only leads to more errors by less-experienced folks without as much oversight.

Because of their relative inexperience, and also because of reduced oversight, the feds have been making a bunch of mistakes in the way they do their wires lately.

But at the same time federal judges are just letting them slide.  There haven’t been any consequences.  There’s no penalty for even the most egregious violations of people’s privacy rights.

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The exclusionary rule, as we’ve said repeatedly, is quite an elegant solution to a sticky problem.  There’s a constitutional line which the police cannot cross in gathering evidence.  Society wants the police to gather all the evidence they are allowed to, all the way up to the line.  Society does not want people to be convicted with evidence that was gathered by crossing the line and violating their rights.  We don’t punish the police officers personally for crossing the line, because then they’d be reluctant to go anywhere near the line, and society would lose lots of perfectly lawful evidence.  Instead, we let the cops go right up to the line and dance on that line.  And if they happen to cross the line, then we just don’t let them use that extra evidence against the defendant.  All of society’s goals are attained with no fuss or muss.

It’s a good thing it’s so elegant, because the exclusionary rule is really the only tool in the courts’ toolbox here.  If the government violated the Fourth Amendment, then the evidence gathered as a result of that violation must be excluded.  The problem is that the courts often decide it’s better to have all the evidence.  Courts routinely say that society wants the truth, or that there is a greater policy in favor of using as much evidence as is known, or stuff to that effect.  And when that happens, the courts get rid of that one elegant tool they have to protect your rights from government excess.

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And so, for example, we get decisions like Judge Holwell’s last November, declining to suppress wiretap evidence in the Galleon case even though the wiretap applications were little more than a fraud on the court.  The judge found that the issuing judge had been misled as to the necessity for the wire.  A situation crying out for suppression — and sanctions — and the defendant was forced to go to trial instead because that was preferable to the court.

And we get decisions like that of Judge Sullivan yesterday, declining to suppress wiretap evidence in another white-collar case even though the feds committed such outrageous and brazen violations of the minimization requirement that it was impossible to believe that it wasn’t completely intentional.

“The court is deeply troubled by this unnecessary, and apparently voyeuristic, intrusion” into the defendant’s private life, wrote the judge.  But that didn’t stop him from ignoring the exclusionary rule altogether, permitting these and other deeply troubling prosecutors to keep on doing whatever they like.

Namby-pamby judges in the past tried to deal with minimization violations by just suppressing the personal conversations.  This served no use whatsoever, because all that did was exclude evidence that wasn’t admissible at trial in the first place.  There was no penalty for violating this fairly important rule.

So there has been pressure on the courts to actually enforce the rule in a meaningful way, by suppressing all conversations that were intercepted on a wire where there were blatant violations of the minimization requirement.  Instead, the courts appear to have gone in the opposite direction.  ”We can’t suppress,” they seem to be saying, “because then we’d lose all that lovely lovely evidence.”

Well, they’re not being namby-pamby about it.  But that doesn’t make their decisions any less abhorrent.

Our jury’s still out, and there’s so much stuff to catch up on.  There’s the 5th Circuit’s denial of Jeff Skilling’s appeal, even though the Supreme Court had struck down the “honest services fraud” charge last summer.  We were so ready to write something about it yesterday, but work intervened, and now we’re not in the mood.  Maybe this weekend.

Instead, we’re all intrigued about the Senate hearings earlier this week on whether federal law enforcement ought to get a warrant before doing any search and seizure out there in the cloud.  Apparently, the Obama administration says the warrant requirement is just too much of a hassle.

The term “cloud computing” covers a lot of things, but for these purposes we’re talking about people storing data not on their own hard drives, but out there somewhere in the ether of the internet.  Of course, “out there somewhere” means “stored on someone else’s servers.”  Which means it’s there for the taking (or destruction) if those remote servers were to be compromised.  And of course, that means it’s out there for the seeing if law enforcement decides to go poking around in the cloud.

As the law currently stands, if an email is more than 180 days old, the feds are allowed to snag it without a warrant, under the 1986 Electronic Communications Privacy Act.  In yet another bit of Orwellian fractal weirdness, the ECPA was designed to ensure that online communications had just as much privacy protection as anything in the offline world.  (Given the erosion of Fourth Amendment protections in the brick-and-mortar world, a cynic might be tempted to crack that the ECPA has lived up to its expectations.)

As Vermont senator Patrick Leahy put it last September, when the Senate first starting considering changes to the ECPA, the statute

was a careful, bipartisan law designed in part to protect electronic communications from real-time monitoring or interception by the Government, as emails were being delivered and from searches when these communications were stored electronically. At the time, ECPA was a cutting-edge piece of legislation. But, the many advances in communication technologies since have outpaced the privacy protections that Congress put in place.

Today, ECPA is a law that is often hampered by conflicting privacy standards that create uncertainty and confusion for law enforcement, the business community and American consumers.

For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending on where it is stored, and when it is sent. There are also no clear standards under that law for how and under what circumstances the Government can access cell phone, or other mobile location information when investigating crime or national security matters. In addition, the growing popularity of social networking sites, such as Facebook and MySpace, present new privacy challenges that were not envisioned when ECPA was passed.

Simply put, the times have changed, and so ECPA must be updated to keep up with the times

Think of it this way:  You’re storing your emails on a third party’s servers.  Isn’t there some lessening of your privacy expectations in that situation?  And on top of that, until maybe six or seven years ago, it wasn’t that outrageous to deem emails left on a third party’s servers for more than six months — instead of storing them to one’s own hard drive or local server for preservation — to be “abandoned.”  AOL users lost their emails after just a month or so.  If you didn’t actively save it to your hard drive, you didn’t want it.  (Forget, of course, the user’s reasonable expectation that the email would no longer exist in the first place.  Do not waste brain cells wondering whether one can abandon something that one believes to have already been destroyed.)

The point is, the law sort of made sense back in the 80s.  And it still kinda made sense when Google was new and Facebook was still in the future.

But now, things have changed.  In ways that are both dramatic and obvious to anyone who might be reading this post.  Now, by default, the vast majority of users do not store their emails locally (if they even know how to do so).  Emails are almost always accessed through a third party’s servers.  Almost nobody downloads their emails — and even if they do, the original remains on the server.

The vast majority of users expect that their emails, protected by their usernames and passwords, will remain private.  Even though the emails are stored out there in the cloud, the ordinary reasonable expectation is that they are private.

As we all know, the Fourth Amendment prohibits the search and seizure of stuff where there is a reasonable expectation of privacy, unless law enforcement gets a warrant based on a showing of probable cause to believe that particular evidence of a particular crime will be discovered by the search.  (For those of you desiring a quick primer on the various exceptions that apply, you can certainly do worse than to listen to N. Burney and G. Mehler’s brilliant CLE lecture, “Search and Seizure in 60 Minutes“)

The exceptions to the Fourth Amendment essentially boil down to situations where the evidence would cease to exist if a warrant were sought, or there’s some other thing we want the police to be able to do (such as make sure people are safe) that might be deterred if they weren’t allowed to use evidence observed in the process.  None of the exceptions are based on a policy of “we probably wouldn’t have probable cause to search in the first place.”

But that is precisely the policy offered by the Obama administration this week.  We kid you not.  Here’s associate deputy attorney general James A. Baker, testifying on why the administration doesn’t want to have to get a warrant to search the cloud:

In order to obtain a search warrant for a particular e-mail account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account. In some cases, this link can be hard to establish.

And if they aren’t allowed to search in cases where they cannot establish probable cause in the first place?  The consequences would be dire, he says.

The government’s ability to access, review, analyze and act promptly upon the communications of criminals that we acquire lawfully, as well as data pertaining to such communications, is vital to our mission to protect the public from terrorists, spies, organized criminals, kidnappers and other malicious actors.

They’ve gotta be kidding.  This is about as outrageous a policy as we’ve come across.  Justifying it because “omigod, think of the horrible things that could happen if we had to comply with the law” is something we’d have little patience for if uttered by a sophomore in college.  Hearing it from the Justice Department is not amusing.

Fortunately, the at least one of the courts doesn’t seem to be in agreement with the administration on this one.  The 6th Circuit ruled a few months ago that a warrant is, indeed, required for a search of cloud-based emails.  Here’s hoping that others follow.

Of course, what would be better would be for Congress to amend the ECPA so people don’t have to get convicted based on illegally-seized evidence first, and incur the expense of a trial and a couple appeals, before the other circuits are able to weigh in.

This’ll be quick, because we’re pretty busy working on a wiretap case, which is always time-consuming if done right.  But as our mind’s on that topic anyway, we thought we’d quickly point out that the latest round of insider-trading cases is again largely derived from wiretaps.  Here’s a roundup over at the WSJ’s law blog.

We just wanted to jump in and point out that just because there were wiretaps, by no stretch of the imagination does that mean the case is a slam dunk.  There are all kinds of ways that agents and prosecutors can and do screw up wire cases.  If properly challenged, the recordings and all evidence gotten as a result of them can get thrown out, which pretty much kills the case.  Don’t go saying this can’t happen, because we happen to see it plenty.  (The one we’re working on right now is a prime example of how not to conduct a wiretap investigation, for example.)

But even if the evidence doesn’t get suppressed, that doesn’t mean it can’t be successfully attacked at trial.  Cross-examining taped evidence isn’t the easiest skill to master, but it’s definitely doable.

If you’re really interested, you can go take our CLE lecture on how to defend these kinds of cases over at West Legal Ed Center (shameless plug).  Or if you prefer, here’s a quick cut-and-paste from a longer post we put up the first time this happened, when the Galleon case broke (original post here):

Wiretap evidence is anything but a sure thing. We know. We did wires for years in the Rackets Bureau of the Manhattan DA’s office, and now we defend them. We’ve taught a nationwide CLE on how to successfully defend them for West LegalEdCenter. Wiretaps are not a sure thing.

They can be defeated with technicalities. Eavesdropping is probably the greatest invasion of privacy that the government can inflict, and so we make law enforcement jump through all kinds of hoops before they are allowed to get an eavesdropping warrant. There are so many i’s to dot and t’s to cross, that the feds hardly use wiretaps in the first place. You’d think otherwise, but it’s so. Plus, they have to go through so many steps in the chain of command to get permission to apply for a warrant, that by the time they could have done so the need or probable cause has evaporated. State prosecutors do way more wires than the feds do.

Because the feds rarely do them, they’re not necessarily as on the ball as certain state-level offices might be. And except for those few high-caliber state offices, the locals can be even more error prone.

That’s big, because little errors in wiretaps have big consequences. Usually, they mean the government loses the case. A little oversight leads to the suppression of all the evidence derived from that point forward in the case, and a multimillion-dollar investigation just went down the toilet. No bullshit.

What kinds of technicalities are there? Tons. Some are just stupid. One particularly stupid requirement is the “sealing” requirement. The idea is that we don’t want to risk having the tapes or CD-ROMs of the intercepted conversations tampered with. We don’t want Nixonesque 17-minute gaps in the evidence. We want the assurance that the evidence never had a chance to be fucked with, and is as pristine now as when it first came in. And so the law requires that the tapes or CDs be sealed immediately, which usually means having them wrapped in evidence tape and having a judge sign and date the tape with a Sharpie.

But “immediately” doesn’t mean “immediately.” Instead of sealing the tapes right after they were recorded, the law says they have to be signed within 24 hours after the expiration of the warrant. Warrants are typically good for 30 days. So the whole month’s worth of tapes or CDs have to be assembled and sealed no later than 24 hours to the minute after the expiration of the wire. And that can be a tough deadline to meet. Especially when, say, it’s 5:04 on a Friday afternoon and all the judges are on their way out of town for the weekend. Or when, out of the hundred or so tapes for that month, one of them by accident didn’t make it into the group to be sealed, which can easily happen. Or when the judge took forever reading that 160-page renewal application, and the deadline passed when he’d only signed half the tapes.

This 24-hour rule is not a “good faith” or “close enough” rule. 24 hours and one minute means the evidence on those tapes cannot be used, and any evidence that resulted from what was heard on those tapes must be suppressed. The case is over. It’s technicalities like these that make prosecutors sweat and cross their fingers and hope the defense attorney won’t be paying attention.

Another technicality, believe it or not, is who signed the warrant application in the first place. The law is very particular about who is allowed to sign the application. Only certain enumerated DOJ officials, or the elected head of the DA’s office, are allowed to do it. We once had to work pretty hard when a very good defense attorney named Marty Adelman noticed that we’d had a substitute sign on behalf of Mr. Morgenthau when the boss was out of town. We had to prove that he really was legitimately unavailable, not merely at a function or indisposed, and that the substitute was the legitimate second-in-line. We’d done it right, of course, but others don’t. At one point, about a gazillion wiretaps had to be thrown out because the U.S. Attorneys in D.C. were having them signed by someone not on the authorized list.

The big thing, of course, when trying to controvert an eavesdropping warrant, is not the technicalities but the probable cause.

There has to have been probable cause to believe that a particular crime, listed in the wiretap statute, was being committed. That evidence of that crime would be found by listening in on a particular phone. That a particular named person would be using that phone, whose conversations would be evidence of the crime. And traditional investigative methods like surveillance, undercovers, informants, subpoenas, etc. wouldn’t get the job done.

That’s a lot to prove. The warrant applications have a heavy burden to meet. A good defense attorney is going to look for chinks in the armor, weaknesses in the alleged probable cause, and is going to fight hard to get the warrants and all their fruits thrown out.

And doing that work, and making the prosecution work hard to defend itself, and letting them know that they’re going to be working this hard for the rest of the case, can convince them to rethink their plea position at the very least.

When looking at probable cause, a decent attorney is going to notice whether the warrant application sections laying out the arguments are just boilerplate, cut-and-pasted from earlier applications, or whether they actually are tailored to the investigation as it then stood. Boilerplate, if it doesn’t really apply here, is a fraud on the court! That warrant and everything thereafter just got thrown out.

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Well, what if the defense litigated the eavesdropping, but it’s all still coming in? They’ve got a trial on their hands. What do they do now? They can’t fight the tapes in front of a jury can they? How can you possibly cross-examine taped evidence?

It ain’t easy, but a smart lawyer can do it.

First of all, you have to realize how wires get started. They don’t come out of the blue. Probable cause does not land in some cop’s lap.

There’s an easy way, and a hard way, to start a wire. The hard way is to have all this suspicion, based on historical intel about your players, surveillance of their movements, and scuttlebutt from the community. Then you track down their phone numbers, and subpoena tons of call records to see who they’re calling and when. Then you look for patterns, and see what you can dig up about the people they call. And you try to put together a res ipsa argument that this criminal activity must be going on over that phone. That ain’t the easy way.

The easy way, like with any investigation, is to flip an informant. Someone screws up, and now needs to work off a likely sentence. The only way they can do that is by getting someone else in trouble. So they agree to wear a body wire, or introduce an undercover, or (usually) consent to the recording of their own phone calls with the target.

Bang. Right there, we’ve got all kinds of arguments for reasonable doubt. Arguments to piss the jury off at the government and want to acquit our client.

Because what is the informant trying to do? He’s trying to get our client in trouble. He’s trying to elicit an incriminating statement over the phone that’s going to let the government tap that number. That doesn’t just happen.

No, that call is going to be scripted. Or rehearsed. Or both. That call is going to have a purpose, and Mr. Informant is going to do whatever he can do to manipulate that conversation so he gets the incriminating words he wants. Or at least words that sound incriminating.

You see where this is going, don’t you? You may never use the word “entrapment” itself, but by golly you’re going to plant that concept in the jury’s mind. That informant was out to save his own skin. That informant did not tell our client the truth. That informant lied about what that conversation was about. Those lies were scripted and rehearsed with the agents beforehand. This whole case is built on lies. And the conversation didn’t go according to plan. Our client was not about to incriminate himself. So that informant manipulated him, changed the subject, hounded him, cajoled him to say things he otherwise never would have said. Throw some in-check indignation, and you can have one pissed-off jury.

And you fight the recordings themselves. “But look at the transcripts, they’re cut and dried,” you say? Poppycock. Those transcripts are nothing but interpretation. Any defense lawyer who sits back and relies on the government’s own interpretation of what is on those tapes needs to find another line of work.

Because everything on those recordings is open to interpretation. Nobody in the real world speaks in clear prose, with footnotes explaining their jargon and inside references. Nobody talks like that.

People throw ideas around. They talk things through. They change their mind. Taken out of context, a statement on Day 1 can sound really incriminating. But in context with a statement on Day 2, it’s perfectly innocent.

People talk in code. Not just spies and crooks, but everyday folks. Nobody spells it all out, that would infuriate the listener. Stuff that the other person also knows goes unsaid. People use jargon that outsiders can easily misinterpret. Phrases like “you’re going to put me in jail” could really be a schtick between friends for “my boss isn’t going to like this,” rather than the literal meaning. But taken out of context, perfectly innocent words can sound damning. Any one of us could face prosecution if our own conversations were selectively lifted out of context.

So it is critical that the defense listen to all of the intercepts, not just those highlighted as the prosecution’s greatest hits. The defense needs to get the whole context, and be able to explain ostensibly incriminating conversations as being perfectly innocent. The client should help as much as possible.

Other room for interpretation is what the freaking words were in the first place. We had plenty of occasions where we listened to a tape and heard one phrase, our detectives heard at least two different phrases, and our trusted paralegals heard it yet another way. Nobody enunciates every consonant. Speech is casual. It’s rushed. It’s muddled. It’s amazing that our brains can separate out as much as we do. But in doing so, we often see patterns where they don’t exist, and hear words and meanings that were never said. It’s like optical illusions for the ear, and they happen all the time. Have an inaudibility hearing if you have to, and get the statement tossed altogether if need be.

So any fool who relies on the government’s transcripts deserves to be called a fool. Make your own dang transcript, and make sure you can sell it to the jury. Youwant to be the voice they trust.

There are tons of other ways to tear the intercepts apart. These are just a starter. But this post is already getting far too long…

When the police ask if they can come in, SAY NO.  It doesn’t always end as badly as this, but it almost always ends badly.

When the police (or investigators from a regulatory agency, or any enforcement types) ask you questions, SAY NOTHING.  You don’t have to talk to them, and it can end badly.

If the cops are getting physical, DON’T FIGHT THEM.  You will always lose, and it’s just something else to charge you with.

Not blaming the victim here, but don’t let it happen to you.

For more useful advice — for law-abiding citizens just as much if not more than others — see this fine video called 10 Rules for Dealing with Police:

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Credit goes to the partner, btw, who’s probably looking at a helluva lot of harassment for breaking the wall of silence.  Breaking the golden rule that Thou Shalt Not Speak Ill Of Another Cop is not a career-advancing move.

You’ve probably all seen the video by now of the motorcyclist recording himself speeding down a Maryland road, only to get pulled over by a plainclothes cop who leaps out brandishing a gun and otherwise behaving inappropriately.  And you’ve probably heard how the motorcyclist is now facing trial on charges of illegal wiretapping, for the recording of the officer.

The case has become the most visible in a rising tide of police backlash against citizens videotaping them while they abuse their authority.  We wrote on this (and the reasons why the police are losing respect) here.

Well now Judge Emory Pitt has thrown out the charges against the motorcyclist, ruling that police and others who exercise their authority in public “should not expect our actions to be shielded from public observation.”  You can read the Baltimore Sun article here.

Although this isn’t controlling precedent for any other courthouse, the ruling makes perfect sense. A police officer — or anyone else, for that matter, who is doing something in the open in as public a place as a freeway — would be an idiot not to expect that others are going to see what he’s doing. If it’s freely observable by the general public, then what possible expectation can there be that it’s private?

The same goes for cops who get taped beating people in a plaza, tasing people in an auditorium, or even just being dicks at a demonstration. The public is watching. So there’s no reason why the rest of the public shouldn’t be allowed to see it as well.

As Balthasar Gracián wrote in 1647, “always behave as though others were watching.” Good advice. Perhaps soon the police will begin taking it to heart.

On May 8, 2005, we were having a party.  It was our birthday, and our firstborn had just turned 1 a few days before, so it called for a big celebration with friends and family.  For us, it was a time of new beginnings.  But for Jerry Hobbs, May 8 2005 was the end.  He found his 8-year-old daughter and her 9-year-old friend brutally stabbed to death, in a park in Zion, Illinois.  He immediately called the police, who immediately made him their number-one suspect.  He’d just gotten out of jail in Texas, after all, so why investigate further?  He was subjected to a long, intense interrogation, and eventually made a statement that sounded like a confession.  He recanted the statement, saying it was coerced, but that didn’t matter, and he was charged with the murders.

Shortly after his interrogation, the police found DNA on the girls’ bodies that didn’t match Hobbs.  The DA discounted it, saying it must have been cross-contamination and couldn’t have been relevant to the crime.  But the DNA was in semen found on the girls’ bodies — and inside one girl’s vagina — and that’s not cross-contamination.  The DA insisted that it was still irrelevant, and that the semen must have been on the ground before the attack.  Seriously.  Hobbs remained in custody, charged with the double murder, for more than five years, though his case never went to trial.

He was in jail until a couple of hours ago, that is.  As it happens, that DNA on the girls’ bodies was extremely relevant.  Jorge Torrez, who had lived in Zion at the time, was arrested in Arlington, Virginia a few months back, and charged with the abduction and repeated rape of one woman as well as attacking another woman.  Virginia, unlike Illinois, takes DNA samples along with fingerprints when someone is arrested.  The DNA taken at Torrez’s arrest went into the database, and popped up as a match to the DNA found on the girls.  The Illinois prosecutors dithered for weeks, but this morning they finally released Hobbs from prison (though they refused to issue an apology, insisting they and the police had done everything right).  Still, an innocent man went free at last.

And if Torrez’s DNA had not been swabbed on arrest?  Hobbes’ coerced, false confession might well have resulted in yet another wrongful conviction.

This raises a lot of issues.  There’s the misuse of DNA evidence, and there’s the false confession, but those are topics for another time.  (If you’re interested in learning ways to defend such cases, you can check out our “Hope for Hopeless Cases” CLE series, particularly lectures IV and V.)

Today, however, our beef is with the civil liberties argument against taking DNA samples at arrest.

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The argument is that people who haven’t yet been convicted of a crime should not be compelled to give DNA samples.  It smacks of “Big Brother” and “Minority Report.”  The government might conceivably misuse the data.  It’s discriminatory, because blacks and Hispanics get arrested disproportionately more often, and so would be over-represented in the database.  The police might arrest people for bogus reasons, in the hope that cold cases might get solved.  It’s an unreasonable search.  It should require a court order.  It’s a penalty imposed on people who are still presumed innocent.  (See this Chicago Tribune article for these and other arguments being made.)

The speculative arguments are the easiest to deal with.  The police “might” make b.s. arrests and hope for the best?  That argument is foolish, even though it is well-founded.  The police do make b.s. arrests and hope for the best.  Happens all the time, whether or not DNA samples will be taken.  The mere fact that the police can and do abuse their authority is the civil-liberties problem here, not the reasons why they might do so.  The fact that the police can abuse something doesn’t make that thing inherently unconstitutional.  And as for the argument that the government “might” mis-use the information, that just shows an ignorance of the data actually being collected.  DNA samples are not being sequenced for their entire genome.  That takes forever and is prohibitively expensive.  All they do is run a standard test kit, which only looks at a handful of “noise” locations on the genome, and counts the number of times a sequence happens to repeat there.  No private data about the person is revealed or analyzed.  So there’s nothing for the government to really abuse.

The DNA data that is kept is fundamentally no different than the fingerprint data that automatically gets taken at arrest.  A handful of known locations are looked at, and what’s found there is what goes into the database.  We routinely fingerprint people at arrest, to see if there’s a match in the database to pending cases or open warrants, and to generate a rap sheet.  Nobody throws a hissy fit about it.  It’s generally accepted.  Few would take seriously an argument that fingerprinting arrestees violates their civil rights.

But doing the same thing with DNA?  ACLU attorney Michael Risher is quoted in that Chicago Tribune article as saying “it treats innocent Americans like convicted felons,” and somehow violates their Fourth Amendment rights, and at the very least should require a court order.

We defend people in court all the time.  We’ve been pretty successful dealing with DNA issues, we practice in a state that does not automatically take DNA samples, and we’ve fought hard to prevent the taking of any such samples from our clients.  But we just can’t buy the ACLU’s arguments here.  Taking DNA samples from arrestees doesn’t treat innocent people like convicted felons.  It is not a punishment.  No liberty is restricted.  No property is seized.  It’s an administrative task, nothing more.  As for the 4th Amendment issue, it’s no more violated than in any other post-arrest search, which can be a heck of a lot more invasive than the taking of fingerprints and an oral swab.

No, these arguments are just silly.  The potential for exoneration of the innocent, on the other hand, and the more certain identification of the guilty, are powerful considerations.  If all you’re going to weigh against them are silly arguments, you’re going to lose.

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There are valid concerns here, but they are not unique to DNA sampling.  They have to do with all the identification data taken on arrest — mug shots and fingerprints, names, addresses, dates of birth, not just DNA swabs.  The big issue is the risk of false identification.

Let’s say a cop nabs you for spitting on the sidewalk, and you aren’t carrying I.D., so he can’t just write a ticket but has to book you and fingerprint you.  Your mugshot is going to be in the system forever.  And eyewitness identifications being what they are, the odds aren’t bad that someone, somewhere down the road, is going to put her finger on your picture and swear that you’re the one who knocked her down and stole her purse.  It happens plenty.

And DNA evidence gets interpreted wrong all the time, too.  Evidence is handled poorly, technical errors happen in the lab, and bad conclusions are drawn.  So if your DNA is in the system, the odds just went way up that someone, somewhere down the road, is going to screw up and say your DNA was found at a crime scene.

But that doesn’t make the taking of your DNA swab a civil-liberties violation, any more than the taking of your mugshot.  It’s ancillary to the simple fact of life that getting arrested once dramatically increases your chances of being falsely identified later.

Are we fans of the idea of taking DNA samples at arrest?  Not really.  We’d prefer to limit it to those convicted of violent or sexual crimes — keep the database limited to people we’re pretty sure have already committed conduct of the sort where DNA evidence comes into play in the first place.  DNA evidence is not used to solve stock frauds, so there’s really no point to taking DNA off someone suspected of a white-collar offense.  We think it would be impractical and unnecessary to take DNA samples at most arrests.  But it wouldn’t be unconstitutional if states chose to do so.

The police need a warrant to search your home.  Except when they don’t.  The warrant requirement of the Fourth Amendment is there to protect your privacy, and sorry, but sometimes your privacy isn’t the most important thing at the moment.

One exception to the warrant requirement is the Emergency Exception.  In a nutshell, it says the police are allowed to go into your home without a warrant when there is good reason to believe that someone inside is seriously hurt, or in danger, and needs their assistance right away.

Different states define the rule in different ways.  In New York, the rule was set in 1976 in the Mitchell case.  Mitchell has two objective conditions, and one subjective condition.  If all three are met, then the police are allowed to go in without a warrant.

Objectively, the circumstances have to be such that a reasonably prudent officer would have thought there was an emergency at the time.  Objectively, the officers on the scene had to have probable cause to believe that there was an emergency inside the house.

Subjectively, the officers had to actually be going inside to help.  They couldn’t be using the emergency as a pretext to really look for drugs, for example.

So far, so good.  Sort of.

One problem is that there is no requirement here that the police actually believe there is an emergency.  There is no subjective requirement that the police on the scene be aware of the circumstances that would lead a reasonable person to think there was an emergency.  There is no subjective requirement that the police on the scene actually think there’s an emergency.

That’s not a huge problem under the Mitchell rule, because the no-pretext prong sort of implies that the police need to subjectively believe there’s an emergency.

But what happens if you take away that no-pretext prong?  You get an absurd rule.  Police who did not themselves believe there was any emergency could still go in without a warrant — and hope that some clever prosecutor down the road can come up with a scenario where an objective cop, aware of all the circumstances that the police themselves might not have been aware of, might have thought there was an emergency.  And if you think no New York police officer would break down your door in the hopes that it can get justified down the line (if your case even gets that far)… well, the word “naive” springs to mind.

Well, guess what?  Back in 2006, in its Brigham City decision, the U.S. Supreme Court specifically rejected the no-pretext prong of the Mitchell rule.  The Court was being true to its 15-year trend of rejecting subjective rules in federal Fourth Amendment law.  The Supreme Court line of cases does not care whether the police had some pretext or ulterior motive.  So long as there was some legitimate basis for the police conduct, they don’t really care what the police themselves were thinking.

But New York hasn’t had to deal with the issue though.  Not, that is, until a case we argued earlier this year.  

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This January, we found ourselves before the Second Department one month after the Supreme Court had reaffirmed its Brigham City reasoning in an Emergency Exception case, Michigan v. Fisher, decided last December. 

In an unusually lengthy argument — the panel simply disregarded time limits, and let both sides argue for well over an hour — we found ourselves being asked by the panel what the new New York rule ought to be.  At first, we tried to suggest that no new rule was needed here, and anyway that was a job for the Appellate Division.  On seeing some raised eyebrows, however, we quickly gave the panel our thoughts.

It’s pretty straightforward, if you ask us.  The police who are entering the home can’t be protected by the Emergency Exception unless they themselves thought there was an emergency.  Based on the circumstances actually known to them at the time, they had to have honestly believed that someone inside the home was in dire need of their assistance. 

So we’d have a subjective test that does not have anything to do with pretext:

1) The police must subjectively believe that there is an emergency inside the premises.

2) That belief must be objectively reasonable, based on the facts known to the police at the time.

That’s all that’s really needed.  And that’s essentially what we argued.

And yet…

It is now the middle of July, and still no decision.  Just for context, most appeals before the Second Department have an opinion within weeks.  And even the most complex cases we’re aware of there still have had an opinion within a couple of months.  We’re at six months and counting…

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When a decision is this long in coming from the Second Department, you know they’re wrestling with something.  Maybe it’s the facts of the case.

The facts are actually kind of neat.  Our client was in the hallway of the apartment building where he was staying.  In front of his door, before he’d been able to open it and go inside, he was stabbed in the neck by an assailant.  The assailant ran downstairs, and our client ran upstairs to get help.  Police came and found our client a couple of floors up, and he gave them a good description.  Officers quickly arrested the assailant at a nearby subway platform, found him with a backpack full of weapons, and took him back to be identified.  Our client was in an ambulance at this time, and positively ID’ed his attacker from inside the ambulance.  The attacker went  to jail, and our client went to the hospital.

Once everything was over, the police hung around.  They wanted to go inside the apartment where our client had been staying.  They sent the super to get the keys, and waited several minutes till he came back and opened the door for them.  There was some blood spatter on the door, but the cops didn’t have any reason to think that anyone was inside.  Inside they found stuff and left to get a search warrant.  They told the warrant court that they’d followed a blood trail directly from our client to the apartment and went right in, which wasn’t what had happened at all.

At the suppression hearing, the judge simply could not credit the police testimony.  It was so obvious to everyone that they were making stuff up — poorly — that the hearing was almost a farce.  To make matters even more farcical, the prosecutor’s theory of the case kept changing.  They brought in another prosecutor to argue the law stuff, who came up with yet another theory of the case.  The suppression judge didn’t buy any of it, and threw the evidence out.  The People appealed, and that’s how we found ourselves arguing for a new Emergency doctrine for New York.

On second thought, it’s probably not the facts.  The court has to be struggling with crafting a new law that will withstand appeal.  Because it’s a sure thing that, whoever wins this one, the other side is going to take it to the Court of Appeals.

So should the law be that the cops don’t necessarily need to subjectively believe there’s an emergency, so long as some objective person with full knowledge would have believed there was one (the People’s position)?  Or should the cops need a subjective belief that is also objectively reasonable (our position)?  Or should the law be something else entirely?

What do you think?

Now that we’re all immigration lawyers, we figured we’d better take a gander at the complaint filed yesterday by the feds, seeking to strike down Arizona’s new immigration law.  The feds say Arizona’s law is preempted by federal law and policy, and so must be struck down under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.  (You can read the complaint for yourself here.  The text of the law can be found here.) 

After reading the complaint in its entirety, we have to say that it’s mostly stupid. 

The law was hotly criticized by the Obama administration even before it was enacted back in April, so it’s no surprise that this action was filed.  We’re surprised it took this long to do it.  And we’re even more surprised, given how long it took, that the feds did such a shoddy job of it.

In broad strokes, Arizona wants to deter illegal aliens from sticking around in Arizona.  To that end, among other things, the law:

• Tells Arizona police they have to verify someone’s lawful presence if, during an otherwise lawful stop, they have reasonable suspicion that the person might be here unlawfully.  §11-1051(B) [referred to as Section 2 in the complaint]. 
• Amends existing law, permitting police to make a warrantless arrest if the officer has probable cause to believe that a misdemeanor or felony has occurred, to add that the police can make a warrantless arrest on probable cause to believe the suspect committed an offense for which he could be deported.  §11-1051(E) [in Section 2 of the bill, but perplexingly referred to as Section 6 in the complaint]. 
• says Arizona citizens can sue for money damages if any Arizona state or local official or agency “adopts or implements a policy” of not enforcing federal immigration laws to the extent permitted by federal law.  §11-1051(G) [Section 2]. 
• makes it a crime of trespassing to be present in Arizona in violation of federal law.  §13-1509(A) [Section 3]. 
• amends existing state law against smuggling human beings (§13-2319 [Section 4]) to permit the police to stop a car they reasonably suspect to be in violation of both a traffic law and the already-existing law against smuggling.  
• prohibits illegal aliens from seeking work in the state.  §13-2928(C) [Section 5].
• makes it illegal for “a person who is in violation of a criminal offense” to transport or harbor illegal aliens.  §13-2929(A) [Section 5].

The general argument the feds make is deliciously ironic: Requiring compliance with federal law would conflict with federal law.  At first glance, it seems like everyone at the DOJ who approved this complaint skipped Logic 101, and listened instead to John Cleese’s logic monologue on the Holy Grail album.  But this is not really the stupid bit. 

Their argument is more along the lines of (1) the feds get to determine policy of how and when the feds enforce their own laws; (2) Arizona isn’t telling the feds what to do, but it’s going to be enforcing the same laws more thoroughly; so (3) Arizona is messing with the feds’ policy.  This is one of the stupid bits, because nowhere does Arizona tell the feds what to do or how to do it.

The Complaint commits some intellectual dishonesty, however, to make it seem so anyway.  They repeatedly misquote the Arizona law to say a citizen can sue “any” official or agency for failing to enforce the immigration law.  They make it sound like Arizona citizens could sue federal officials for failing to enforce federal law.  But that’s not at all what is said.  The Arizona law only permits a private cause of action against Arizona officialdom, for failure to enforce that particular section of Arizona law.  It is obvious that the DOJ knew what it was doing in trying to make it sound otherwise, and this lame attempt to deceive the court (and the media) is not what we’d have expected.

We also might point out to the feds that policy is different from law.  The Supremacy Clause only prohibits the states from conflicting with federal law.  There is nothing saying the states have to go along with the policies of whoever happens to be enforcing such law at any given time.  The whole stepping-on-our-policy-toes argument is pretty much irrelevant to this analysis.

The feds also complain that Arizona’s goal — attrition of illegal aliens — is only one of many other goals the feds have.  The feds are more focused on getting rid of criminal or terrorist aliens, and don’t really care so much about the rest, says the complaint.  So Arizona locking up the others would be contrary to federal policy and here we go again. 

Paragraph 36 alone makes any number of howlers here.  It says the Arizona law “attempts to second-guess federal policies and re-order federal priorities.”  It tries to “directly regulate immigration.”  It “disrupts the national enforcement regime.”  It attempts to “set state-specific immigration policy.”  It “legislates in an area constitutionally reserved to the federal government.”  It “conflicts with federal immigration laws.” 

We’re not particular fans of the Arizona law, but an honest observer would have to admit that it does none of those things.

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The feds make the bizarre contention that Arizona is “supplanting the federal government’s immigration regime with its own.”  Really?  Where?  Nowhere does Arizona create additional barriers to immigration other than those already enacted in federal law.  Nowhere does Arizona reduce the federal barriers to immigration.  Arizona doesn’t restate or redefine the federal laws. Nowhere does the new law “establish the terms and conditions for entry and continued presence” or “regulate the status of aliens.” All the state did was refer to federal law as it already exists.  Arizona’s only saying that, if you violate federal law in Arizona, then it’s a violation of Arizona law, too.  If it’s not a violation of federal law, it can’t be a violation of the Arizona law.

It’s as if the feds are saying the Supremacy Clause means that, if the feds have outlawed certain conduct, the states cannot outlaw the same conduct.  Forget “as if” — that’s precisely what the feds are saying here.  And that’s nonsense.  Outlawing something the feds also outlaw is safe, legal and commonplace.

The complaint repeats several times that the Arizona law would force the feds to change their priorities and shift their focus away from criminals and terrorists.  The law doesn’t tell the feds what to do, however, or how to do it.  So what is the complaint on about?

It finally explains itself in Paragraph 44:  The number of police requests for verification of immigration status is going to increase.  The Department of Homeland Security will have to spend more time answering those requests.  That’s going to take resources away from stuff the feds think is more important.

The legal term for this argument is “horseshit.”  As in most states, Arizona police already had the discretion to seek such verification on a case-by-case basis.  It’s already part of DHS’s job to provide that verification.  The complaint’s argument is that any increase in demand for DHS’s services already being provided — doing more X when they’d rather be doing Y — would interfere with federal priorities, and “such interference with federal priorities, driven by state-imposed burdens on federal resources, constitutes a violation of the Supremacy Clause.”  Again, horseshit.

Also, it’s hard to imagine how even a sizeable burst in demand for such basic data would divert DHS agents from their field work or whatnot.  This is 2010, after all.  We may not have flying cars or interstellar tourism, but we sure as hell have mad database skillz.  Nigh-instantaneous searches of digital records is commonplace and cheap.  The complaint’s argument here just doesn’t jibe with reality.

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To their credit, the feds did try to make a legitimate argument here.  The problem is, it appears to have been written by lawyers who have less than a passing acquaintance with criminal law or civil-rights law.  The Arizona law is a criminal law, not an immigration law, but the feds seem to have put their immigration people on the job.  Mistake.

The legitimate argument is that people are going to wind up getting detained when they haven’t violated the federal law, and they’re going to be stuck there because they don’t happen to be carrying proof of their lawful presence with them at the time.  No matter what legislative fixes they add to prevent it, the truth is that people are going to get hassled because they look Mexican.  There are valid civil-rights problems that could easily arise in the enforcement of the law. 

But that’s an issue with the enforcement of the law, not with the law itself.  And anyway, it has nothing to do with the Supremacy Clause.  Sorry.

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The complaint keeps dishing out the stupid.  Starting on paragraph 57, it goes on about the bit letting cops make a warrantless arrest if they believe the suspect committed a deportable offense. 

The feds acknowledge that Arizona law already allowed cops to make a warrantless arrest on probable cause to believe that a misdemeanor or felony had occurred.  So the issue is whether there are any deportable offenses that aren’t misdemeanors or felonies. 

§13-601 describes only three classifications of offenses: felonies, misdemeanors and petty offenses.  A cursory review of the petty offenses in Arizona law turns up things like feeding wildlife, failure to appear, giving tobacco to a minor, and such.  There may be something Arizona calls a petty offense that could get you deported, but we haven’t found it. 

This bit, like the rest of the complaint, is much ado about nothing.  It doesn’t seem like Arizona has given its police any more power to make warrantless arrests than before.

The feds also go on about how this section “makes no exception for aliens whose removability has already been resolved by federal authorities.”  But it beggars reason to suspect that the feds have already vetted whether your crime should result in deportation before you have even been arrested for the crime in the first place.  If any of the DOJ lawyers who wrote the complaint are reading this, deportation tends to come after conviction, not before arrest.  Just saying.

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We could go on, but it’s getting late, and we have actual work to do.  We happen to dislike the Arizona law, though it’s obvious that Arizona is in a tough position.  We don’t like the federal immigration laws any better.  They make as much sense as going in the other direction and just annexing Mexico and giving everyone there the vote.  (Actually, that makes more sense than current U.S. policy.  But then again, our stance on immigration is very close to “the more the merrier.”)

It was a foregone conclusion that the Obama administration was going to challenge this law.  They could have gone with an Equal Protection argument, but they didn’t.  Instead they went with the Supremacy Clause.  And that’s revealing.

It reveals that they didn’t think the civil rights issues were winners.  But more than that, it reveals that the administration thinks its policies to be supreme to those of the states.  That’s not what the Supremacy Clause deals with.  That only deals with actual laws, created by Congress, not policies adopted by a president.  It is an act of dangerous hubris for the administration to make these arguments.  A wise court will shut this case down, if only to protect the country from an increasingly powerful federal executive.

But also because it’s just stupid.