Since When Is Dicta Enough to Trump Fourth Amendment Rights? The Aftermath of \u3cem\u3eFlorida v. J.L.\u3c/em\u3e

Unfortunately for individual liberty, and the inestimable right to personal security, the Supreme Court\u27s extraneous language in its otherwise, well-reasoned decision in Florida v. J.L., and the lower federal courts\u27 interpretation of that extraneous language, have jeopardized the Constitutional right to be free from capricious stops and frivolous frisks, both of which necessarily intrude on the sanctity of the person and sometimes inflict great indignity and arouse strong resentment . . . . When read logically and narrowly, the J.L. decision holds that an anonymous telephone tip, alone, does not give law enforcement a sufficient legal basis to stop or frisk a suspect. Nevertheless, in dicta, the Court hypothesized about some extreme danger to the public that might justify a warrantless search based on an anonymous tip, even without probable cause and absent any showing that the anonymous tip was reliable. Based on that dicta in J.L., the Eleventh Circuit Court of Appeals approved a warrantless search of a suspect\u27s home based largely on information provided by an anonymous caller who reported that arguing and gunshots were emanating from a specific address. The Eleventh Circuit justified the search by construing the report as one of a serious threat to human life. If federal courts adopt the reasoning from the dicta in J.L., the protections of the Fourth Amendment will vanish. Permitting law enforcement officers to conduct a Terry stop or, worse, a search of someone\u27s home based on an anonymous, but urgent, report of danger or criminal conduct would convert the Terry decision from a narrow exception... into one that swallows the general rule that searches are \u27reasonable\u27 only if based on probable cause

An Exclusionary Rule for Police Lies

Our legal system treats the police as if they are impartial fact gatherers, trained and motivated to gather facts both for and against guilt, rather than biased advocates attempting to disprove innocence, which is the reality. Because of its partiality in favor of officers, the criminal justice system lacks the appropriate structure to expose and effectively deter police lies, which distort the truth about criminal or unconstitutional conduct. This Article, presented in three parts, argues that the current system should be changed to provide the structure necessary to promote honest police work. Specifically, it urges a modification to the exclusionary rule that will encourage police to tell the truth about the lies they tell and the potentially unconstitutional conduct they commit. In other words, it advocates for an exclusionary rule tailored especially for police lies. Part I catalogs the evidence that police lie. It illustrates that police lies are a prevalent part of many American criminal prosecutions. It also demonstrates that some of these lies interfere with accurate substantive outcomes, meaning that some innocent people have been wrongly convicted because of the lies. Part I further demonstrates that truth-distorting lies are decaying the public\u27s confidence in the integrity of our criminal justice system and reducing the protections supposedly guaranteed by the federal Constitution, jeopardizing, in the long-term, the likelihood that juries and judges will continue to believe the government\u27s evidence in criminal cases. Part II considers what the Supreme Court has said, expressly or implicitly, about police lies, the exclusionary rule, and other procedural rules that advance or inhibit police dishonesty, and it examines other components of our criminal justice process that promote police lies. It explains that the Supreme Court\u27s precedent reveals that the Court is ambivalent about police lies. Some of the Court\u27s precedent discourages such lies and other decisions show indifference toward them. The third Part differentiates between two distinct types of police lies: (1) those that expose the truth; and (2) those that distort it. It urges the adoption of a modified exclusionary rule for criminal cases that hinge on police credibility. It argues for maintenance of the status quo for cases involving police lies that expose the truth regarding a defendant\u27s criminal behaviors but contends that harsher, more certain, and immediate consequences must follow when a judge or jury finds significant evidence that an officer lied to distort the truth about a defendant\u27s actions, statements, or culpability, or about the officer\u27s own conduct. Finally, in cases in which the police come clean about lies they tell suspects or potentially unconstitutional conduct they commit when trying to catch the bad guy, the modified exclusionary rule proposed here provides for significantly more judicial and citizen oversight to assess whether the ends of justice necessitated those police lies, given the facts and competing interests in the case

The Return of Reasonableness: Saving the Fourth Amendment from the Supreme Court

Although there is no recipe for defining Fourth Amendment reasonableness, the Supreme Court produces its most anomalous Fourth Amendment outcomes when it decides mixed questions of reasonableness, assessing issues that turn on how ordinary, prudent citizens think and behave. The Court treats these mixed issues, combinations of fact and law, as if they raise purely legal questions. But mixed issues are more complex and require someone to determine historical facts, apply those facts to principles of Fourth Amendment law, and consider the totality of the circumstances, including taking into account community and cultural influences. The Supreme Court will take its first step toward returning reasonableness to its Fourth Amendment jurisprudence by expressly, accurately, and consistently dividing mixed issues into subgroups and then assigning whole subgroups to judge or jury, depending on who can best decide the whole class of issues in a way that protects the interests represented by the Fourth Amendment. Dividing mixed questions into identifiable sub-categories, a government subset and a citizen subset, is the key to returning reason to the Court\u27s Fourth Amendment jurisprudence. Until now, the Court has reserved all mixed issues for itself, subjecting them to a de novo review on appeal. At a minimum, the Court should distinguish between questions that are strongly tied to law enforcement policies and procedures or dependent on the professional expertise of law enforcement agents and, in contrast, questions that require an evaluation of how a prudent and sensible suspect or citizen acts and thinks when he or she is confronted by the police

DNA – Intimate Information or Trash for Public Consumption?

“Surreptitious sampling” may be police officers’ trump card in cracking otherwise unsolvable crimes as serious as murder, arson and rape. Law enforcement officers engage in surreptitious sampling when they covertly collect DNAsamples from unsuspecting people, who inadvertently leave behind hair, skin cells, saliva or other biological materials.Surreptitious sampling is a terrific crime-resolution tool. It allows diligent law enforcement officers to collect proof-positive evidence of guilt or innocence without the hassle of obtaining a warrant and absent probable cause or reasonable suspicion to believe that the contributor of the biological evidence committed a crime. Provided an officer has the energy and savvy to gather a hair or other biological sample for testing, she can gather information with the potential to definitively link someone to a crime. Not even a hunch is necessary to justify the quest; yet, DNA processing technology “lets crime laboratories derive a full profile from a minute amount of biological material at relatively low cost.”Perhaps because of its effectiveness and the lack of legislative or judicial regulation of the practice, surreptitious sampling is growing in popularity. Recently, the New York Times highlighted this evidence-gathering method. According to the article, “Over the last few years, several hundred suspects have been implicated by the traces of DNA they unwittingly shed well after the crime was committed[.] Although great for solving crime, some contend that surreptitious sampling is a tragedy for personal privacy and freedom because it threatens to expose significant amounts of intensely private information about citizens’ health, gender, race and lineage to the government. One federal district court judge remarked, “[T]he relative ease with which a DNA sample may be obtained renders questionable the ability to realistically protect any genetic privacy interest . . . .” This essay argues a middle position—that the well-established Fourth Amendment rule of “abandonment” can strike an appropriate, “reasonable” balance to serve law enforcement needs for surreptitious sampling, while simultaneously protecting citizen privacy

In \u3cem\u3eBooker\u3c/em\u3e\u27s Shadow: Restitution Forces a Second Debate on Honesty in Sentencing

The Supreme Court\u27s January 2005 decision in Booker should induce Congress to enact legislation to remedy the constitutional invalidity of the MVRA and encourage the Department of Justice to revisit how restitution is charged, indicted, negotiated in plea agreements, proven at trial, and presented at sentencing hearings. The Booker decision is also a reminder to lower federal courts to adhere to the rule announced by the Supreme Court in Hughey v. United States, which limits the reach of orders of restitution. Congress, DOJ, and the federal courts should insist on candor in charging and sentencing to remedy the restitution roulette that has generally accompanied a defendant through the federal sentencing process, a process which violates the Sixth Amendment and defies Rule 11 of the Federal Rules of Criminal Procedure. Restitution has been treated by sentencing courts as a post-conviction afterthought. Because the courts have treated restitution as a secondary matter, defendants have routinely pled guilty with no understanding of what they might face in restitution. Sentencing judges have ordered defendants to pay restitution to victims not identified in the indictment or information and in amounts not alleged in such charging documents. The Eleventh Circuit has even ordered a defendant to pay restitution for conduct that occurred beyond the statute of limitations. These practices are analogous to those sentencing practices the majority condemned in Blakely v. Washington, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon. At a constitutional minimum, a defendant has a right to know the maximum sentence he faces, whether incarceration or restitution, when he goes to trial to defend himself and/or when he enters a plea under Rule 11 of the Federal Rules of Criminal Procedure. Restitution, like other forms of punishment, should never be arbitrary or unpredictable

Biden\u27s Prosecutors

In President Biden’s inauguration speech, he offered us hope, while acknowledging America’s challenging history. He also promised progress––real progress––on racial justice. “A cry for racial justice some 400 years in the making moves us. The dream of justice for all will be deferred no longer[,]” he said. Meaningful progress toward racial equality begins with a fairer criminal justice system. We must take an anti-racist, anti-xenophobic, anti-homophobic, and anti-classist approach to prosecutions. In turn, that type of progress demands sound leadership at the Department of Justice (DOJ) and from the ninety-three United States attorneys whom the President appoints. The lead prosecutors in the federal system must act with integrity, courage, and independence. They should also reflect the rich diversity of the people in our country. Representation matters, and diverse groups make better decisions. This essay focuses on President Biden’s strides in that direction during his first 100 days

Sentencing Inequality Versus Sentencing Injustice

Women lag behind men in pay for equal work and in positions of prestigious employment, such as chief executive officers at Fortune 500 companies and presidents of colleges and universities. Women also suffer conscious and subconscious negative bias from both men and women in positions to evaluate an applicant\u27s capabilities and potential, making it less likely that an employer or mentor will choose a woman instead of a man. In contrast to these and many other contexts, our federal criminal justice system regularly favors women over men. Empirical studies show that this lenient treatment begins with prosecutors and law enforcement officers, who tend to forego charges against women; continues with magistrate judges, who often release female defendants on bail 6r on their own recognizance pretrial; and culminates with lesser sentences after women are found guilty. Post-conviction leniency includes fewer death sentences, no incarceration when that option is available, substantially more, downward departures from the otherwise applicable sentencing guidelines, and few upward departures. A smaller number of studies reveal that women, nevertheless, receive harsher sentences when they engage in particularly unladylike crimes

Finding a Happy and Ethical Medium Between a Prosecutor Who Believes the Defendant Didn\u27t Do It and the Boss Who Says That He Did

The increasing prevalence of DNA testing has proven that, at times, our criminal justice system renders wrongful convictions. Extrapolating from such significant errors, we can infer that smaller mistakes also occur. Because criminal prosecution is not an exact science, like DNA evidence, prosecutors can disagree about aspects of a case-whether to reward a cooperating defendant with a sentence reduction, whether to indict a defendant under a mandatory minimum statute, and even whether a defendant is guilty of a crime. This Essay examines the tension that arises when the prosecutor handling a case disagrees with her boss about one or more of these significant issues and offers an ethical solution for resolving such disputes that will not undermine a criminal defendant\u27s chances of justice

Anti-Justice

This Article contends that, despite their unique, ethical duty to “seek justice,” prosecutors regularly fail to fulfill this ethical norm when removed from the traditional, adversarial courtroom setting. Examples abound. For instance, in 2013, Edward Snowden leaked classified information revealing a government-operated surveillance program known as PRISM. That program allows the federal government to collect metadata from phone companies and email accounts and to monitor phone conversations. Until recently, prosecutors relied on some of this covertly acquired intelligence to build criminal cases against American citizens without informing the accused. In failing to notify defendants, prosecutors violated the explicit statutory directives in the Foreign Intelligence Surveillance Act (FISA). In ignoring the statute, they also breached their obligation to “seek justice.” No one complained about the prosecutors’ misdeeds because only prosecutors knew that the investigative evidence had been concealed from defendants. In every FISA case, prosecutors alone enjoy access to the relevant surveillance information and singularly decide whether to withhold or disclose it. Such ethical breaches are prevalent in plea bargaining and “Brady” evidence situations as well. This Article contends that because of the non-adversarial and secluded, or as I coin it “anti-justice,” environment for moral decision-making in the FISA and other contexts, these ethical violations are predictable, if not inevitable. The review of case files for FISA evidence, like other, analogous, settings in which prosecutors make decisions in seclusion, does not create the milieu where the ethic of doing justice can flourish or, arguably, survive. Doing justice in our system, this Article concludes, requires adversarial judicial proceedings or some equivalent outside influence as a check on prosecutors’ power and discretion. Criminal justice scholars and defense lawyers have previously criticized plea bargaining and prosecutors’ handling of Brady evidence. This is the first Article to examine prosecutors’ recent defiance of FISA as proof that in each of these settings, justice demands capable adversarial, judicial, or public influences

Progress Is a Chameleon

Progress is a chameleon. Its hue changes with our perspective, which is influenced by our race, gender, socio-economic status, religious affiliation, sexual orientation, age, and ancestry, among other influences. The amount of progress we perceive also varies from person to person and depends on the type of law we practice and whether we work in a small town or big city. Perhaps most importantly, how we view the rapidity of change in the legal profession — as stagnant, developing, or somewhere in between — is impacted by our unique experiences, our psychology, the length of time we have been lawyers, and other life circumstances we have encountered along our journey. I write this essay purely from my perspective. My conclusion — the legal profession has taken significant strides. The profession is much more welcoming and inclusive than when I began practicing, but there is plenty of room for more improvement