Discussing the NSA debacle with a friend, I came up with the following scenario.
Police:“Open the door. We have a search warrant.”
Citizen:“How did you get a search warrant? On what grounds?”
Police:“We did a statistical analysis of crime in this area. This zip code/precinct/street has an extremely high level probability of criminal activity based on arrests and complaints. So we are searching every residence here for evidence of wrongdoing. Now open the door, or we will open it for you.”
From what I have read, this appears essentially how the NSA decides which calls to monitor, and whom. They use algorithms to detect certain words and phrases based on statistical analysis or similiar means. This seems to be one of the favorites tools of federal enforcement officials to use. I recall similiar methods involving the Mafia and drug traffickers which were declared unconstitutional. I cannot find the particular rulings though.
My understanding is that probable cause requires suspicion or knowledge of a particular crime by a particular person in specific circumstances, not general.
Would the above scenario be constitutional?
Does or could probability equal probable?
AP
No, it’s not. Probable Cause requires some “individualized suspicion” that a search of particular person or place to be searched will produce evidence of a crime or contraband.
Of course, use of particular words is somewhat different than mere presence in a drug neighborhood. I shall not opine on whether it’s different enough; I don’t have enough facts nor is this really my bailiwick.
Probable cause exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief
that an offense has been or is being committed.
To determine whether probable cause exists, a reviewing court will focus upon what the totality of the particular observed circumstances meant to police officers trained in analyzing the observed conduct for purposes of crime control.
As a general matter, probable cause must be supported by objective, particular observations, not the sort of statistical analysis described in the OP.
However, if a judge issued a search warrant, then the fruits of the search would most likely be admissible, since the officers relied on the warrant in good faith. The exclusionary rule is supposed to deter police misconduct when they fail to apply for a warrant. If the police do their job and apply for a warrant, and do not misrepresent facts in their application or supporting affadavit, the fact that the warrant is unsupported by probable cause does not automatically bar the fruits obtained in reliance thereon. Only if the warrant is so lacking in validity that a reasonable officer would know it cannot be relied upon will the results of the warrant-authorized search be stricken.
But also note that the NSA doesn’t usually try to use information gained from their wiretaps in criminal prosecutions here in the US, so the exclusionary rule isn’t as much of a deterrent to them. It seems to me that most of these national security wiretaps aren’t for the purpose of building a criminal case against someone. If they’re not planning on using the information at trial then they don’t need to worry whether the information gained by the wiretap was gathered legally.
Nothing in there states that searches and seizures have to be related to criminal prosecutions. Not that I think you are stating they should or need to be, merely noting that they are not done for that purpose. But it still appears that the kind of blanket surveillance the NSA is doing is unconstitutional if it involves US citizens.
That is the main point I am trying to develop. What justification can the adminstration use regarding the NSA program? I view it as a constitutional violation and possibly impeachable.
Bricker, you bring up a good point regarding the ‘fruits of the search’. I would still disagree with the practice if a judge had issued warrants and make an appeal to the Supreme Court that the fruits should be disallowed because the judge did not have probable cause to issue the warrant. But it would not be as an egregious decision as not applying for warrants in the first place.
The remedy for illegal searches is exclusion of their fruits in prosecution. See Mapp v. Ohio and Weeks v. United States.
There is not an overarching, separate criminal penalty for violation of this guarantee.
If you did that, the Supreme Court would undoubtedly advise you to go back and read the opinions they authored in the mid-1980s: United States v. Leon and Massachusetts v. Sheppard, in which they consider this precise question and decide it in favor of permitting the “good-faith reliance” exception.
Right, but while cops have to know their jobs, they aren’t supposed to be legal experts. That’s the judge’s job. If the judge gave out a bad search warrant, how is that the fault of the cops?
Remember that the judge handing out warrants isn’t the prosecutor. And as Bricker pointed out, if the warrant is so baseless that a reasonable cop should know that it was baseless, then that evidence can be excluded.
Feh. If there’s a right, especially one as important as this one, that has no remedy, that means we should be figuring out a damn remedy, not shrugging our shoulders and saying “Sucks to be you.”
Anyway, I’m no fan of the Exclusionary Rule. But regardless, you’re declaiming that there’s no remedy because the thing we’ve got is the Exclusionary Rule and it doesn’t apply here. BUT so what? We (society) can change that. I know we can because I’ve read Mapp, and we did it then.
I appreciate your clarifying probable cause and the “good faith” exception.
I do have a question here, though: Suppose police, proceeding on instructions of the D.A., obtain a warrant and search the premises of, say, the county chairman of the political party opposed to the D.A.'s party. It’s later found that the statements on which the warrants were based were themselves fraudulent … but the police and the judge are not aware of this.
On the other hand, nothing criminal turns up in the search, or some minor evidence not related to the grounds of the warrant: say the pot pipe the chairman’s son had hidden away so his parents wouldn’t find it.
Are there any grounds whatsoever on which the chairman might take either civil or criminal action? It almost sounds like there ought to be, but your analysis of the exclusionary rule as the sole remedy against unreasonable search and seizure suggests not. Or was I misreading your argument?
I agree tend to agree more than disagree with Bricker’s statement. But I do not think that the Exclusionary Rule is the only remedy. There are civil suits and torts one can use for a remedy, not just the criminal statutes. And Constitution provides a remedy through impeachment if government officials violate the amendment.
To say the NSA can do as they please as long as they do not try use any intelligence gathered in a court of law strikes me as absurd. That said I will review the cases cited and see what I can gleam.
Given the parties as you’ve listed them, I would doubt the DA would actually do anything, but isn’t making a false statement actionable? In the absence of the DA, wouldn’t the Chairman have a civil case against the person who made the fraudulent statements?
Sure. Go ahead. Who’s stopping you? The only comment I’d make is that Mapp was a judically-created rule of evidence (or, more accurately, Mapp expanded the Weeks rule to state courts). If you’re suggesting we create a cause of action or a criminal offense, then the legislature is the proper venue for that change… which I’m sure you know, but it’s a distinction some readers may not have caught.
A warrant must be supported in its particulars by an affadavit or sworn statement:
I, John Q. Law, Detective, Anytown Police Department, being duly sworn, do hereby depose and state: I am a detective with the Anytown Police Department, and have been so employed for the past seven years with responsibilities including the investigation of violations of TypicalState, county, and town law regarding the offenses of mopery and dopery.
On December 15th, 2005, your affiant received information from Detective Smith, One Town Over Police Department, relative to a subject by the name of TOM JONES, who had been following females in shopping malls and commiting mopery. TOM JONE’s address was given as 123 That Street, Anytown.
On December 16th, your affiant interviewed TOM JONES, who admitted during the interview that he had “an uncontrollable” problem with mopery, and had videotaped several instances of mopery. TOM JONES admitted that the video tapes were stored at his home at 123 That Street, Anytown.
Your Affiant has investigated numerous mopery crimes. Your Affiant knows through personal experience, training, and the details stated within this affidavit that the video tapes mentioned above may be found at this location and can be material evidence in a subsequent criminal prosecution.
Your Affiant requests a search warrant for the premises listed above and the curtilage thereof, for any video tapes, still photographs, computer storage devices, or other media depicting acts of mopery.
Now, there are two possibilities: either the facts in the affadavit are manufactured, in which case the officer who swore they were true is on the hook, or they do not actually add up to probable cause as a matter of law. Your question seems to suggest that the facts were made up. The affiant is then prosecutable for the false statements made under oath. The police that actually executed the warrant, however, are in the clear, assuming they had nothing to do with the fabrication.
42 USC § 1983 provides a civil remedy against any person acting under color of state law who deprives anyone “…of any rights, privileges, or immunities secured by the Constitution and laws…” However, police officers and judicial officials may assert qualified immunity against such suits, as GFactor points out.
Note that it doesn’t provide a remedy against people acting under color of federal law.
I certainly wasn’t arguing that the NSA SHOULD be able to do as they please, only that many of the checks and balances that constrain ordinary police surveillance don’t work with organizations like the NSA.
If the cops illegally wiretap your house the information gained by the wiretap is pretty much useless to them because they can’t use it in court and the existance of such a wiretap could jeopardize their whole case against you if it were discovered. So the cops have a pretty strong incentive not to illegally wiretap suspected criminals. But the NSA has different goals, and so it would need different checks and balances.
I did not think that you were arguing that they should. I did think that you assumed that there was no violation if the ‘fruits’ of the search are not used in a court of law - criminal or civil. I gather that was an incorrect assumption.
My point is the opposite of the above, regardless of whether the fruits are used, a violation occurs, which is why the Exclusionary Rule can only be a partial remedy. It prevents the abuse of effects of an illegal search, but does not prevent the abuse of the illegal searches themselves, whether it is a door to door sweep of a local police department or the NSA.
I can understand the officer’s immunity for bad warrants made in good faith. And from the statutes cited, there are remedies against officials that do abuse the warrant process.
My biggest issue with all this is how NSA searches are considered constitutional even with a warrant. They require particular facts, and monitoring appears to a blanket canvass with warrants after the effective search.
I found this site regarding the FISA. It appears slightly out of date though regarding the current procedures. But going by the warrant standards listed there, especially the minimization requirement, it barely passes the smell test of constitutional validity.
But granted that, to not even apply for warrant, even if just for CYA, it strikes me as either complete disregard for the law or complete stupidity. But that is being argued in other threads.
I’m not sure what you mean by “they don’t need to worry”, but if the wiretaps were illegal, then there is a penalty involved regardless of whether or not any of the info was used in a criminal case. From FISA:
As **Bricker **notes, the officer applying for the warrant is at greater risk than an officer who is simply handed a warrant:
So the officer preparing the affidavits is at risk (and evidence the officer seizes is subject to exclusion):
If he knows or should know that material statements in the affidavit are false.
If he knows or should know that the affidavit does not establish probable cause.
If the warrant is invalid on its face.
If there are other grounds to attack the officer’s good faith.
An officer executing warrant obtained by someone else probably won’t see the affidavits (especially after Leon and its progeny ;)) , and so has less risk. But if the warrant is facially invalid, the officer could still be on the hook. I would argue that the same holds for an officer who has independent knowledge that the warrants were obtained illegally, or were based on an insufficient factual predicate.
This suggests a strategy for law enforcement: Don’t allow the officer who prepared the application for the warrant to take part in the search. But see, Missouri v. Seibert (when police sought to undermine *Miranda * by questioning suspect twice, first without, and then with required warnings, statements made in second interrogation exlcuded).
