Probable Cause

Without ever having served any time in one, I cannot call myself an expert on prisons.  But I suspect I know something more about them than the average person.  I’ve visited more than a few throughout California in my work as a criminal defense attorney.  I know that prisons are considered by inmates to be better than jails.  I know this because I’m currently representing a prisoner in a habeas case, which has required him to be transported from the prison in Coalinga to Fresno and he has made it clear he would much rather be in the prison.

From what I’ve seen, while prisons are better than jails, prisons suck.

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Some of you will wonder why this article is going to start off, in a minute here, by talking about and quoting from comments made at so-called “town hall meetings” regarding Obama’s health care plan.  Is this blog “going political” or something?

There are actually two answers to that, the most simplistic of which is “no.”  Although, in a way, this blog is unavoidably political: the legal system is, at bottom, the reification of the politics of a given jurisdiction — or to be more honest about it, it is the reification of the politics of those who have the power over the legal system, such that they can reify their political views in a concrete system of law.  But I really want to save that discussion for another post.  At any rate, it must be admitted that, on the one hand, this blog has always been political.

On the other hand, this blog does focus on the legal system; it is my “professional” blog and I am an attorney.  We don’t typically think of discussions of the law as being political discussions, per se.  This post will maintain a focus on the legal system; not health care.  In that sense, then, this post is not a sign that the blog is “going political.”

The most I will say about Obama’s health care plan is that I’m not a socialist.  But, again, that particular issue is for discussion for another post and, with respect to Obama and/or political footballs like health care plans, for another blog.

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Officially, the basic rule in the United States of America is still that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”  (Arizona v. Gant, 129 S.Ct. 1710, 1716, 2009 Daily Journal D.A.R. 5611 (2009).)

In 1968, the United States Supreme Court said,

This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized,

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

(Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868 (1968), quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891).)

But as Bill O’Reilly would say, “That’s what the people who are paid for hating America want you to think.”

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For eight years, off and on, I had a relationship with — lived with — someone. It was a toxic relationship. She not infrequently berated me for what were really insignificant and only actually perceived slights. She was a wonderful woman.

I have a memory from high school of a friend who engaged in what today would be considered an act of felony vandalism. It may have been then, too, but in those days we understood that sometimes kids did destructive things, because, by definition, they’re immature. We didn’t saddle them with felonies because of it. But I digress (as I am unfortunately wont to do). He was a great guy.

These days, I ostensibly make my living as a criminal defense lawyer in Fresno, California. As you might imagine, I rub elbows with a number of deputy district attorneys. Not infrequently, I’m mystified by their attitudes towards people accused of crimes where there is little (or even no) evidence beyond innuendo and supposition to support the charge. These DDAs forge full steam ahead towards a conviction, sometimes stretching the law — in some cases even breaking the law — in order to obtain a conviction. The majority of them are pretty nice people.

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