Posts Categorized: Constitutional issues

THE US SUPREME COURT STRIKES DOWN NC LAW BARRING PERSONS ON SEX OFFENDER REGISTRY FROM ACCESSING SOCIAL NETWORKING SITES

In 2010, Mr. Packingham, a person listed on the sex offender registry, posted on Facebook a note of gratitude to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that made it a felony for a convicted sex offender to use social-networking websites which allow minors to create profiles. Today, the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

In 2012, I represented Mr. Packingham and filed a motion to dismiss because the statute infringed upon the First Amendment right of free speech. Today in an 8-0 decision, the USSC agreed. Justice Kennedy began by outlining what he described as a “fundamental principle of the First Amendment”: that everyone should “have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” And even if once it may have been hard to determine which places are “the most important” “for the exchange of views,” Kennedy concluded, it isn’t hard now. Instead, he reasoned, it is “clear” that the Internet and, in particular, social media provide such opportunities.

He wrote that North Carolina’s law stifled “lawful speech as the means to suppress unlawful speech.” By barring sex offenders from using social-networking sites, he continued, the state “with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” “In sum,” Kennedy concluded, “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

This case is important because it “is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet.” Justice Kennedy warned that the court should “exercise extreme caution before suggesting that the First Amendment provides scant protection for access” to ubiquitous social-networking sites like Facebook and Twitter.


PERSONS WITH MENTAL HEALTH ISSUES AND THEIR RIGHTS TO POSSESS A GUN- PART 1

The United States was created on the premise that possession of guns and the right to arm oneself was a right of the individual. This right is not without exceptions and individuals who have been adjudicated to be mentally incompetent or involuntarily committed to a mental institution cannot possess a gun.
But what about persons who have not been adjudicated incompetent or involuntarily committed? What about persons who receive Social Security disability benefits because they are autistic, bipolar, depressed or anxious to a degree that they are unable to work and a money manager handles their finances? Should they be precluded from gun ownership?
Under the Obama administration, persons receiving SSI with a representative payee, such as a person with autism who had no intellectual impairment and no language impairment, a person with agoraphobia or social anxiety disorder would have been forbidden from keeping a firearm in their home for self-defense.
The strange bedfellows of the ACLU and the NRA fought this regulation on the basis that that without a judicial determination, the constitutional rights of those with mental issues were being arbitrarily abridged. Additionally, the inability of persons to work or manage their money did not correlate to increased likelihood to commit violence. Research shows that the cohort with serious mental health issues was no more likely than the general population to use a firearm to harm others or themselves.
This order was rescinded but persons with mental health issues and especially those who depend on government aid are a particularly vulnerable group and cannot be treated as a lesser class. We must avoid disparate treatment whenever possible.

“All animals are equal but some animals are more equal than others.” (George Orwell, Animal Farm)

Part 2 of this blog will address restoration of gun rights.

Sources:
N.C.G.S.§ 14-404(C)(4),
18 U.S.C. §922(d),
20 CFR Part 421,
Dist. of Columbia v. Heller (2008) 554 U.S. 570,
Jeffrey Swanson, “The ban on mentally ill people buying guns wasn’t ever based on evidence,” The Washington Post, February 10, 2017,
Implementation of the National Instant Criminal Background Check System Improvement Amendments Act, www.regulations.gov/document?D=SSA-2016-0011-3998
www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm


The US Supreme Court will decide my First Amendment challenge in Packingham v. North Carolina

In 2012, I represented Lester Packingham in the Durham county court and argued pretrial that a North Carolina law prohibiting registered sex offenders from accessing social networking websites was an unconstitutional infringement on his First Amendment rights. The judge denied the motion and the case was appealed. On appeal, the NC Appellate Court agreed with my argument but the NC Supreme did not. The case was accepted by the US Supreme Court and oral argument was heard on February 27, 2017. This is the link for the oral argument: www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-1194_0861.pdf.

The New York Times reported:
“A Supreme Court argument on Monday about whether North Carolina may bar registered sex offenders from using Facebook, Twitter and similar services turned into a discussion of how thoroughly social media have transformed American civic discourse.The justices’ remarks, which indicated easy familiarity with the major social media services, suggested that they would strike down the North Carolina law under the First Amendment. Justice Elena Kagan said that President Trump, every governor and every member of Congress has a Twitter account.’So this has become a crucially important channel of political communication,” she said. “And a person couldn’t go onto those sites and find out what these members of our government are thinking or saying or doing.'”(www.nytimes.com/2017/02/27/us/politics/supreme-court-north-carolina-sex-offenders-social-media.html.)

I will post a new blog entry when this case is decided but it appears that the justices recognize the importance of access to websites in 21st century life.


Does Alexa Kiss and Tell? Technology v. Privacy

“Alexa, play Beyonce.” “Alexa, what is the playing at the Southpoint cinemas?” “Alexa, how many cups are in a liter?” These commands and others posed to Alexa, a voice activated service created by Amazon can be easily become a little slice of the space-aged Jetson’s smart home in your daily world. But is Alexa a spy? Is there a record of what is said? Is this seemingly private “interaction” not so private and why do I care?

In the pending murder case of James Bates of Bentonville, Arkansas, the question of whether statements of Mr. Bates were recorded and could be used as evidence used against him in his pending murder case is at issue. Mr. Bates had an Alexa voice activated system in his home at the time Victor Collins’ body was found in Mr. Bates’ hot tub. Mr. Bates proffered explanations for how this occurred which didn’t jive with the physical evidence. Prosecutors served a warrant on Amazon to obtain any recordings made by Alexa and stored by Amazon which would aid in the prosecution’s case-in-chief or provide impeachment against Mr. Bates. If the warrant is not quashed, would there be anything incriminating to discover? The answer is that there are recordings made and preserved by Amazon which could be used to defeat or support Mr. Bates’ version of the facts.

What is Alexa, exactly? Alexa is an intelligent voice control service which in this case was connected to a small tower called Echo which is a Bluetooth speaker with a seven-piece microphone array. Alexa is described as a “passive listening device” which means that Alexa listens but does not record anything until she hears the activation word or wake word “Alexa”. Once the word “Alexa” is said, a small amount of audio content preceding the wake word and all content thereafter is streamed to Amazon’s network of connected computers where it is processed and stored. The audio record then lives in Amazon’s storage or Cloud until it is the subject of a subpoena or warrant or until you delete it.

In the Bates case, Alexa could have recorded evidence in the following ways: (1) all voice commands made to Alexa by Mr. Bates or anyone in his home would be recorded. (2) conversations between persons inside Mr. Bates’ home would be recorded if they were simultaneous to an Alexa voice command. (3) If the command required a significant period of time to achieve compliance such as, “Alexa, tell me when 20 minutes elapses” could result in all conversations occurring in the room being recorded until the Alexa task is completed.

Obviously any command or other function requested by Mr. Bates or the victim such as calendaring an event, purchasing an item, or linking up with another smart home service which conflicts with the defense’s version of the timeline of occurrences is problematic. As smart home and intelligent assistants functions assume a larger role in our lives be aware that a record is stored and even if you request deletion, there is no realistic way to ensure it is completed.

___________________________
The default activation word is “Alexa.”
“With far-field voice recognition, Echo can hear you ask a question from any direction—even while playing music.” (Amazon website)
For the complete list of Alexa commands see: www.cnet.com/how-to/the-complete-list-of-alexa-commands/


ONLY A LITTLE BIT ILLEGAL

When Justice Thomas is the author of a criminal opinion, you can be sure that it will not benefit the defendant and he does not disappoint in Utah v. Strieff. The reason this opinion is so bad is that it rewards the police for violating an individual’s constitutional rights. Here, even though the police officer had no right to stop Mr. Strieff and would not have known that an outstanding arrest warrant existed had he not made the illegal stop, methamphetamine recovered was admitted as evidence.
To understand why this is such a bad opinion, you need to understand the Exclusionary Rule. The Exclusionary Rule states that if the search or seizure is illegal then anything found can’t be used in trial except when:
1) The police would have found it anyway (Inevitable discovery)
2) There was an independent source which was completely separate from the illegal search or seizure, or
3) The connection between the misconduct and the evidence was weakened by time or intervening circumstances.
Here, Justice Thomas selected door #3, the Attenuation Doctrine. But the illegal stop was only minutes before a warrant check and subsequent search– so this doesn’t really make sense. So anytime a valid warrant exists, Strieff will be cited for the proposition that the illegal stop was only a little bit bad and after all, there was a preexisting valid warrant and the guy had drugs on him anyway. So I guess that makes it okay.


What or who can be searched when your car/the car you are in smells of marijuana?

Assume that there is a valid reason for the car you are in to be pulled over: speeding, registration etc. The car has the lingering odor of marijuana. What/who can be searched?
In State v. Pigford (Aug. 2, 2106) NC Ct. of Appeals (COA 15-1047), the court ruled that the odor of marijuana emanating from inside a vehicle does not provide an officer with probable cause to conduct an immediate warrantless search of the driver.
What does this mean?
If the car just smells of marijuana but no particular person reeks of marijuana, the car can be searched as can items which could contain marijuana but occupants of the car cannot be searched.
BUT, if an occupant of the car has a very strong odor of marijuana on his body, that person could be searched but no one else.
AND if during the search, contraband (illegal items: drugs, guns…) is found and supports the arrest of an occupant of the car, that person can be searched (as part of the arrest for possession of that contraband) but no one else can be searched.
WHAT??? I can’t keep all this straight?
Search and seizure law is tricky. Let your lawyer argue that there is no probable cause BUT don’t undermine your case by giving consent to search. If you consent, it doesn’t matter that the evidence would have otherwise been suppressed or excluded. Just know that there are many permutations of the law and it is very fact specific. So even if the car you are in smells of marijuana, it doesn’t give the police the right to search your person. The Constitution provides more protection for searches of people than of property.


EXAMINING POLICE INTERROGATION TECHNIQUES: Securing The Confession

The focus of this blog series has been to expose the deliberate interplay of psychological techniques designed to elicit a confession. The nine step method explained in Criminal Interrogation and Confessions (1986) by Inbau and Reid culminates in steps seven to nine and the resulting confession.
Step seven is the alternative question. An alternative question is a question which presents two choices to the suspect concerning some aspect of his crime. Although both choices are an admission of guilt, one of the choices is morally appealing. An example of an alternative question includes, “Have you done this many times before or was this the first time?”; “Did you blow that money on drugs and partying, or did you use it to buy food for your family?”; “Was this whole thing your idea or did you get talked into it?”
None of these alternative questions addresses the actual consequences of the crime which the suspect may encounter so as not to be interpreted as a promise of leniency. Once a suspect opts for the more palatable option and acknowledges culpability, the oral confession follows.
In step eight, the interrogator develops corroborating evidence to fortify the acceptance of responsibility and obtains an oral confession.
In step nine, the oral confession is reduced to writing.
The interrogation is analogous to a dance; one party leads and controls the steps of the passive party. The first step is the accusation which advances to the development of the theme. The interrogator is always leading. The suspect will try to assert himself only to be ignored or dismissed. When the interrogator has refused to hear any denials, the suspect will withdraw and become passive. Once this vulnerable mood sets it, the interrogator switches tactics and draws the suspect in close and calls him by his name. Feeling validated by this attention, the interrogator delivers the alternative question and the suspect is presented with two choices with one being clearly more desirable. If the suspect selects an option, the interrogator needs only to wrap up the dance; the confession is a done deal.
The interrogation is never an opportunity for a suspect to explain his side. It is never anything other than a method by which the interrogator extracts a confession. The Miranda admonition cautions a suspect that he has the right to be silent and anything said may be used against him in court. Heed the admonition and don’t think that you are the exception; the person who can use the interrogation to your benefit. Stay silent and ask for an attorney.


Examining Police Interrogation Techniques: Handling Denials, Overcoming Objections and Re-connecting (steps 3-6)

The interrogation has begun; the interrogator has accused the suspect of the crime and developed his theme. Now, the suspect will begin to deny guilt. According to the nine step procedure for extracting a confession introduced in Criminal Interrogation and Confessions by Inbau and Reid, both guilty and innocent suspects will deny the accusations. Despite denials, a Reid trained interrogator “knows” that the suspect is guilty so there is no room for “weak denials.” Denials are not tolerated since the more a suspect denies involvement or is permitted to repeat or elaborate on a denial; the less likely a confession will result. Consequently, if the suspect tries to deny, the interrogator will ignore, interrupt or dismiss the denial by saying “we are beyond that point and we know you did it.”

By refusing to allow the suspect to deny the accusations or offer any details relating to his innocence, the officer overcomes the objections of the suspect and minimizes the importance of what the suspect has to say. An “objection” by the suspect is a statement offered by the suspect to prove that the interrogator’s accusation is false. In this step, the interrogator takes the suspect’s objection and uses it to further the interrogator’s own theme of guilt.

Having been rebuffed when attempting to deny, having all claims of innocence turned against him and not being able to get a word in edgewise, the suspect begins to withdraw. Responding to the suspect’s passive mood, the investigator moves his chair closer to the suspect in order to appear emotionally sympathetic and empathetic and quickly procures and retains the suspect’s attention by cultivating a personal connection. The interrogator moves closer to and physically touches the suspect. The officer maintains eye contact and begins calling the suspect by his first name. While the suspect’s “passive mood” is being carefully cultivated, the interrogator will condense his theme to one or two central elements and moves into the next step of the process designed to elicit the initial admission of guilt.

The last blog entry of this series will address this final stage.


POLICE vs. PASSIVE RESISTANCE: what is the proper type of force?

In a recent case , a mentally ill man was allotted 30 seconds to let go of a post and accompany the police to a mental hospital. He refused and was tased five times, handcuffed and shackled face down where he died. (Armstrong v. Village of Pinehurst (January 11, 2016).)
In 2011, during an Occupy protest, at the University of California at Davis, when students refused to disperse, officers used military grade pepper spray at close range. The university paid over $1 million in civil settlements.
In both instances, police used an excessive amount of force but what should they have done?

The Orlando Police Department created this Use of Force Continuum with definitions of levels of resistance to clarify the appropriate level of force response:

Suspect resistance Officer use of force
1. No resistance – Officer presence
2. Verbal noncompliance – Verbal commands
3. Passive resistance – Hands-on tactics, chemical spray
(The subject fails to obey verbal direction,
preventing the officer from taking lawful action)
4. Active resistance – Intermediate weapons: baton, Taser, strikes, non deadly force
(The subject’s actions are intended to facilitate an escape or
prevent an arrest. The action is not likely to cause injury)
5. Aggressive resistance – Intermediate weapons, intensified techniques, non deadly force
(The subject has battered or is about to batter an officer,
and the subject’s action is likely to cause injury)
6. Deadly-force resistance – Deadly force
(The subject’s actions are likely to cause death or
significant bodily harm to the officer or another person)
(Adapted from the Orlando, Florida, Police Department’s Resistance and Response Continuum)

In the Armstrong case, holding on to a post would be classified as passive resistance and hands-on tactics/chemical spray are recommended; a taser is not appropriate. The U.C. Davis students also failed to obey verbal direction and were passive resisters but chemical spray, though listed as an appropriate response constituted excessive force when sprayed in the faces of kneeling protesters.
Use of force is an officer’s last option — a necessary course of action to restore safety in a community when other practices are ineffective.” The level of force to be used is the minimum amount necessary to mitigate an incident, make an arrest, or protect themselves or others from harm. The appropriate level of force used varies based on the situation and the officer’s level of training or experience. “ (Michael E. Miller, “Taser Use and the Use-of-Force Continuum: Examining the Effect of Policy Change,” The Police Chief 77 (September 2010): 72–76, http://www.nxtbook.com/nxtbooks/naylor/CPIM0910/index.php#/72)
Obviously, police training in hands-on techniques and de-escalating charged situations using verbal commands are needed. Only training and experience will result in increasing the likelihood of an appropriate response.


EXAMINING POLICE INTERROGATION TECHNIQUES: The accusation and the theme

This blog series discusses the interrogation rubric introduced in Criminal Interrogation and Confessions (1986) by Inbau and Reid which is the basis for law enforcement protocol nationwide. The first two steps are discussed in this Blog.
Step One of the interrogation is called the direct positive confrontation. The suspect is informed in unequivocal language that evidence clearly indicates that he committed a crime and in support of this assertion, real or fictional evidence is proffered. To persuade a guilty suspect to confess, the investigator exaggerates his confidence in the suspect’s guilt. If the suspect fails to confess, the suspect is henceforth treated as a liar.
After the initial accusation, the investigator must make a “transition statement.” An example of a transition statement is: “While there is no doubt that you did this, what I need to establish are the circumstances which led up to this happening.” The transition statement is psychologically integral to the interrogation because it offers a reason for the interrogation other than to elicit a confession. Note that the transition statement assumes that the suspect’s guilt is no longer at issue. With this more congenial transition statement on the heels of the confrontational initial accusatory statement, the investigator gives the suspect the opportunity to elaborate for the first time since the interrogation commenced with the expectation that the suspect will take the opportunity to shift responsibility away from him and towards external facts or persons as being responsible for the crime.
Step Two of the interrogation process is theme development. A theme is a monologue in which the investigator offers and reinforces existing moral and psychological justifications for the suspect’s criminal behavior. In order to match the correct theme to the suspect, the investigator must determine whether the suspect is emotional or non-emotional.
If the suspect is emotional, the technique known as “minimization” is used. Here, the investigator mitigates the offense and downplays its seriousness. The investigator begins building rapport with the suspect by offering empathy, moral justification and sympathy to the suspect’s predicament and assists the suspect in rationalizing and excusing his criminal behavior. Blame is placed on the victim, accomplice or the existence of extenuating circumstances and the seriousness of the crime is deemphasized. This is an example of a minimization theme in a burglary interrogation:
“Bob, I believe you went into that house out of desperation because of your financial situation. I don’t think you are a common criminal or a bad person. I think you tried hard to pay your bills and feed your family but when you lost your job you got further and further in debt. Because you are a good husband and father, you reached the end of your rope when your daughter got sick and needed to go to the doctor. In a moment of desperation and on the spur of the moment, you broke the window of the house on Elm Street and took some jewelry to sell. It is obvious that those folks have more money than they know what to do with and they even left their back door unlocked.”
In the example, the crime is minimized and the break in is morally justified as a reasonable act in the face of financial difficulties.
Alternatively, if the suspect is non-emotional, “maximization” of the evidence, crime or severity of punishment is utilized. The investigator exaggerates the strength of evidence against the suspect and magnitude of charges. The interrogator tries to scare the suspect into confessing by making false claims of the strength of the evidence and exaggerating the seriousness of the offense. Depending on the jurisdiction and the extent to which police are able to deceive the suspect, an investigator may stage an eyewitness identification or fabricate a lie detector test.
In the next installment, dealing with denials will be discussed.