Probable Cause

A judge whom I consider a good man — and who I believe I would be pleased to call my friend if ever that were possible — nevertheless lost his temper with me recently during an off-the-record discussion.  The subject of the discussion and the way the court lost its temper is why I had to write this post.

Two things should be noted before I “get into it.”  First, whether the court or anyone else believes me on this, I’m writing this because a driving force in my life is the Jewish concept of tikkun olam. In other words, I want to work cooperatively to leave the world a better place than it was when I arrived.  If I can’t do it cooperatively, though, I will nevertheless work to do it.

The second thing is the corollary to that desire: I’m not writing this to further anger the judge (though given the court’s refusal to give serious consideration to this issue, that may be a sadly unavoidable side effect of my comments).  Rather, I wish to explain what I was unable to say due to the chilling effect of the court’s reaction to my off-the-record comment — and to the fact that others had started to filter into the courtroom.  I’m hopeful — since I know some judges read my blog — that this post might help explain why it is the right for the court to change its position on this one issue, and why it should be ashamed if it does not.

So what were we talking about?  And what did I say that so enraged one of the few judges I would love to be able to call my friend?

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It’s amazing how often history reports itself in things both small and large. 

I recently ran across one of the small things in this passage from Sinclair Lewis’s It Can’t Happen Here:

“Remember our war hysteria, when we called sauerkraut ‘Liberty cabbage’ and somebody actually proposed calling German measles ‘Liberty measles’?”  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 17, originally published in 1935.)

Can I interest you in some “freedom fries”? 

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A reader from India left a comment here stating, among other things,

Am very impressed with citizens['] rights in your country….I should say cops in our country take us for a ride and just twist things as per their whims [a]n[d] fancies as we have no clue of our rights.

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There is a saying in the legal community that “hard cases create bad law.”  When I was young, whenever I would explain my behavior as contingency planning based on the possibility that something might happen, my father had a saying of his own.  In response to my “if this happened” or “if that happened” reasoning, he would state the following maxim:

If worms carried shotguns, robins wouldn’t eat them.

Not infrequently, as a child engaged in excessive contingency planning, I found this response nothing short of irritating.  As a rational adult attorney, I have found myself quoting this maxim with some regularity.

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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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Over on my other blog — I maintain FresnoCriminalDefense.com as my website and blog relating to more regional issues specific to my Fresno criminal defense office — I had the chance to respond to one of my readers who complained, among other things, that I was not being fair to law enforcement officers because I made allusions to the similarities between them and the enforcers of totalitarianism in Nazi Germany.

The timing could not have been more perfect.

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More than once recently, I’ve written about Submitizens. Several criminal defense attorneys in Fresno, California, where my office is located, simply shrug.  Among other things, they can’t understand why this bothers me so much.

But it does bother me.  Immensely.  And, frankly, it seems to me that it should bother any right-thinking true-blooded American citizen.  At the very least, it should bother criminal defense attorneys; we should understand the implication of this latest governmental insult.

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Yesterday, I got a phone call from the litigation coordinator at Pleasant Valley State Prison saying that if I take off my pants one more time at check-in, I won’t be allowed to visit again. As I told him, if this happens, we can hash it out with the Attorney General: refusing to allow an attorney to see his client is theoretically a misdemeanor. And the guard responsible has to pay $500 out of his own pocket to the client.

I say “theoretically” because the government routinely breaks its own laws with impunity. Frankly, I don’t know why we make laws saying the government has to do this, or cannot do that; when it suits them, they simply ignore those laws.

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A CNN legal analyst today comments on a Secret Service agent who told a citizen to delete pictures taken of a sports stadium because there happened to be a security checkpoint out front. She correctly notes that the Secret Service cannot legally order a citizen to delete the images. She also points out that the Secret Service confirmed that they cannot order citizens to delete pictures.

(USAToday quotes a Secret Service spokesperson as saying the agents “were certainly within their rights.” And WUSA9 news quotes them as saying they “have the authority to ask them to remove the picture from the camera.” However, as the Legal Director for the American Civil Liberties Union of the National Capital Area notes, there is no law that allows law enforcement to do this. Note that the Secret Service spokesperson said they had the authority or “right” to “ask.”)

The CNN Legal Analyst then goes on to state that “your job” as a citizen when you encounter a law enforcement officer is to make the encounter as pleasant and short as possible. That’s your job. You are responsible for making sure that your encounter with the State and to make sure the State stays happy. She notes that if a citizen refused to delete the images, “your investigation has been elevated and you’re in a lot of trouble.” Even though the Secret Service has no legal justification to override your rights as a citizen.

The attitude expressed by this CNN analyst partly explains why America is rapidly becoming a dictatorial police state. We aren’t — yet, anyway — an actual dictatorship. We still nominally have an elected president. But we have already reached the point where every officer of the State, no matter how low his or her rank, can arbitrarily restrict the rights of citizens, even when the law favors the citizen and not the desires of the individual officer.

Frankly, when even our legally-trained analysts say things like this CNN analyst said, we deserve it.

Stand up for your rights, or lose them. Benjamin Franklin, one of our nation’s Founders, said, “Sell not…Liberty to purchase Power.” (You usually see this written as, “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”)