Miles's blog

A little while ago I blogged about my disagreement with the way the war on drugs is fought, mostly because it is ineffective.  The United States Supreme Court yesterday reminded us of another problem—drug investigation is driving search and seizure law.  In a drug prosecution the Court found that a warrant is required before the police can place a tracking device on a vehicle.  (I have not read the opinion and don’t plan to.  Why not? I don’t have to.)

I am not surprised.  The prior cases that said a warrant was not necessary to place a tracking device made no sense to me.  (Colorado law always required warrants for these so this won’t affect my prior employment, but this can have a major impact nationally.)  From the newspaper reports it seems clear the Court is in no mood to split constitutional hairs about what is or is not protected based upon tortured legal theories and outdated precedent.  Obviously, a person has an expectation of privacy in his car.  Trying to say tracking the car with a beeper is no different than following it on the street with surveillance is just absurd.

I expect the court will look at privacy interests from the point of view of the defendant.  The cops and aggressive prosecutors want to look at it in much more limited terms.  For example, that a customer of a cell phone company has no reasonable expectation of privacy in his cell phone records.  Judges have always been much more protective of privacy than the executive branch has wanted.  I expect that in the 21^st century they will continue to protect privacy rights.  I doubt this will present an overwhelming problem for investigation of violent crimes, although certainly it will have some impact.  But it will cause problems for drug investigators.

Regulatory prosecutions have driven search and seizure law for a long time.  The case which created the exclusionary rule, Weeks v. United States was a gambling prosecution.  Mapp v. Ohio which applied it to the states was a pornography case.  Katz v. United States, establishing “reasonable expectation of privacy” as the standard for application of the law was another gambling case.  Those cases all went against the government.  

I have always been convinced that one of the reasons is that judges are much more likely to suppress drugs or gambling receipts than the murder weapon.  However, I don’t think that affects the US Supreme Court much.  The main reason is the manner in which regulatory crimes are investigated, rather than other crimes.  Most crimes are investigated following their occurrence, so detectives seek to find already-existing evidence.  There is always probable cause a crime has been committed, for example.  Regulatory crime investigations, however, are very difficult to investigate after they happen.  They occur in secret with only the participants involved, leaving virtually no reliable witnesses and almost no evidence.  The police seek to prevent these crimes from happening, or often allow them to happen with themselves as witnesses.  This requires them to be proactive in seeking out information.  So they need to intercept phone calls and track offenders.  Narcotics officers are the most aggressive in trying to intercept drugs.

Possessory crimes like drugs will always create search and seizure nightmares because by definition the thing is the crime.  This leaves most defendants with little defense on the facts.  Suppression of the evidence ends the case, giving defense counsel great incentive to contest searches.  Finally, police officers are always searching for things.  Much of the time it is for their own protection, to make sure the person they are dealing with is not armed, but sometimes it is just because that is what they do.  Often on the street an officer either forgets, misunderstands, or chooses to disregard his training about searches.  

I used to always say when I was a prosecutor that we should never appeal the suppression of drugs, that drug cases make bad law.  I am uncomfortable with the search and seizure law being dictated by drug cases.  I think the issues would be clearer and the precedents cleaner if violent crimes were the subject of these cases.