And while we are on the subject of the Supreme Court and surveillance, there have been some interesting cases coming out of both the US and New Mexico Supreme Courts on the subject of probable cause.
For anyone who does not understand how these things work: It is by now established that the Bill of Rights in the US Constitution applies to the states through the Fourteenth Amendment. The Supreme Court's interpretations of the Bill of Rights apply equally to the Federal Government and all states. The states, meanwhile, have their own bills of rights. Each state supreme court is free to decide that its own bill of rights provides a greater degree of protection than Federal Bill of Rights. A State Supreme Court interpretation that goes beyond the Federal interpretation will apply only within that one state, and not to federal agencies operating within the state. For instance, the US Supreme Court has ruled that if the police suspect a crime but lack probable cause, they may investigate on the pretext that they are investigating something else that does have probable cause. Most often, this means if for some reason they suspect drugs, they may pull a car over for a traffic violation, and anything they find while investigating the traffic violation will be admissible. (A "pretextual" stop). New Mexico does not allow pretextual stops and requires the police to be actually investigating what they say they are investigating. Although I consider myself a civil libertarian, I must say that pretextual stops do not bother me, perhaps because they are such a staple of police movies and TV shows as a vital element of investigations.
In May, New Mexico has come out with two rulings holding that the New Mexico constitution holds greater protection against warrantless searches and seizures than the US Constitution, one that I have misgivings about and one that I applaud. Significantly, though, both were made by the Court of Appeal. The New Mexico Supreme Court has granted certiorari (appeal) in both cases, so the Court of Appeals decision may not be final.
The first case is State v. Paananen. Store security caught a shoplifter hiding several items under his jacket. They detained him and called the police. The police arrived, arrested him, and in the process of searching his backpack after the arrest, discovered drugs in it and charged him with drug possession as well. The common law rule was that police could arrest a suspect without a warrant if they had probable cause to suspect him of a felony, unless the arrest was made in the suspect's home, in which case a warrant was required. Arrest for a misdemeanor could be made without a warrant only if the suspect committed in in the presence of the police. The Supreme Court appears to have incorporated the at home vs. in public distinction for felony arrests into the Fourth Amendment. But it has allowed warrantless amendments for misdemeanors when authorized by statute. New Mexico has a statute allowing police to arrest a shoplifting suspect without a warrant if there is probable cause.
New Mexico has apparently moved away from this common law distinction and now allows warrantless arrests, even for felonies, only if there is probable cause and an exigency that prevents the police officer from obtaining a warrant. (Exigency might include a danger of the suspect escaping or destroying evidence). Paananen extended this rule to misdemeanors and said that, despite the statute, the police could make an arrest only if they either first obtained a warrant, or there was an exigency that did not allow a warrant.* Presumably, then, they thought the police should have gotten a warrant before going down to the store. I do not know enough about police procedure to know how much this would inconvenience the police, but I am inclined to think that the threat to liberty in this case is outweighed by the inconvenience to the police, and to hope the New Mexico Supreme Court overturns this one.
The other to do with technological searches. It is a decision I applaud. I see some faint hope that the US Supreme court may be trending in the same direction and hope that they adopt the same rule.
Some background is in order here. Originally, the Fourth Amendment applied only to actual physical intrusions on on the suspect and his property. Under 18th and even 19th Century technology this might be reasonable; by the 20th Century it became increasingly troubling. In the 1928 case of Olmstead v. US, the Supreme Court held that wiretapping a telephone did not require a warrant unless there was an actual physical intrusion on the property. This left a lot of room for intrusion on private and personal conversations. It was overturned in the 1967 case of US v. Katz. Katz went beyond merely extending the Fourth Amendment to wiretapping telephones and changed the standard of the Fourth Amendment beyond physical trespass. Hypothetically, it established a two-prong test (judges just love "prongs") for when an intrusion violated the Fourth Amendment: (1) did the suspect have a subjective expectation of privacy, and (2) does society recognize that expectation as reasonable. As a practical matter, people engaging in or plotting a crime necessarily have a subjective expectation of privacy, otherwise they wouldn't be plotting a crime. The question is whether is really a one-prong question of whether there is a "reasonable expectation of privacy."
The courts' interpretations of "reasonable expectation of privacy" are, shall be say, a bit eccentric. The courts have found no reasonable expectation of privacy for peeking through the window, or for peeking with binoculars, but a reasonable expectation for a telescope. There is no reasonable expectation of privacy against aerial surveillance, but a reasonable expectation against infared detectors. There is no reasonable expectation against a canine drug sniff, but a reasonable expectation before opening an actual container. And so forth. The main thing all of this has proven is that an "objectively reasonable" expectation of privacy exists mostly in the judges' imagination and that some other standard is needed.
The Supreme Court made a preliminary hint at changing the rule in the 2011 case of US v. Jones. At issue was whether a warrant is required to place a tracking device on a car. The Supreme Court unanimously ruled that it is. They split 4-4-1 over why. Justices Scalia, Thomas, Roberts, and Kennedy ruled that a warrant is required because placing a tracking device on a car involves a physical intrusion and therefore falls within the Fourth Amendment under Olmstead. It makes an originalist argument -- at the time the Fourth Amendment was adopted, it was addressed to physical trespass on property. A physical intrusion into a carriage would have violated the Fourth Amendment in 1791; physical intrusion into a car (to place a tracking device) therefore violates the Fourth Amendment today. The opinion does not expressly repudiate the Katz standard of "reasonable expectation of privacy." To the contrary, it strongly implies the contrary, that either a physical intrusion or a violation of "reasonable expectation of privacy" would require a warrant. But it leaves the door open for a return to Olmstead and a physical intrusion standard.
Justice Sotomayor writes a concurrence so incoherent that I have no idea what she is talking about. Justice Alito, Ginsburg, Breyer and Kagan write a concurrence that appears to call for significant changes in what is considered a "reasonable expectation of privacy." While agreeing that the Fourth Amendment protects privacy as it existed in 1791, the concurrence argues that what is really relevant is not 18th Century law, but 18th Century technology. The type of surveillance that is practical now was unthinkable in the 18th or 19th Centuries (and often even in the early 20th Century) because the technology for it simply did not exist. The argument appears to be that what would have been technologically feasible in ages past does not violate a reasonable expectation of privacy, but what requires modern technology does. This makes sense in some ways. It acknowledges that technology has changes things, and that these changes have to be taken into account. But it has the weakness of historical arguments in general -- it requires judges to masquerade as historians.
This is why I applaud the recent New Mexico Court of Appeals decision in State v. Davis. Davis deals with a helicopter that flew overhead and saw evidence that a fenced-in property had been used to grow marijuana. The US Supreme Court has upheld aerial searches as not requiring a warrant. The Court of Appeals held that the New Mexico Constitution imposes a higher standard of protection. It rejected the argument that government agents flying overhead are no different that private citizens in, say, a balloon show or air show, flying overhead. Not true, the Court said; private citizens are cruising for the sake of cruising and if they see your marijuana, it is purely incident. Government, by contrast, is engaged in deliberate surveillance, looking for marijuana.
Instead of the nebulous "reasonable expectation of privacy" standard, the Court of Appeals set a much more concrete two-prong test. (Again with the prongs!) First, the goal of the government must be to intrude. The Court gave the hypothetical of a police officer who accidentally falls against a piece of soft-sided luggage and feels a brick-like object that resembles a bail of drugs. Perhaps more realistically, government might engage in aerial surveying to make a topographical map or trace weather patterns and accidentally come across evidence of drug use. (That would not require a warrant, but could be probable cause to obtain a warrant). Second, if the information otherwise could not be obtained without a physical intrusion into the target's home or cultilage (yard). The Court gives this requirement in the context of aerial surveillance. It cites a US Supreme Court case about infared detectors. But one can readily imagine it being applied in any case of technological surveillance, such as wiretapping, electronic surveillance, tracking devices, and so forth. It avoids the need for any mushy questions about "reasonable expectation of privacy," or any outdated questions about physical intrusion. If the information gathered would require a physical intrusion absent the technology, a warrant is required.
So, what sort of surveillance would not require a warrant? Surveillance of who enters and leaves a house is an obvious one. Following a car is another. Yet another is an informant wearing a wire. Since the suspect voluntarily admits the informant, the use of informants has long been held not to require a warrant. The wire gives an instantaneous and fully accurate account of the suspect's conversations, but, after all, the informant could have done that anyhow, albeit less quickly and accurately.
I regard Davis as an excellent decision. It recognizes the real dangers that modern surveillance technology poses to privacy, addresses it with a clear and objective standard that is (reasonably) easy to follow and offers real protection to privacy, and it relies on the here and now, rather than the historical record. I hope the New Mexico Supreme Court affirms it.
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*I assume this would still allow arrest without warrant in misdemeanor domestic violence cases because of the danger of continued violence if the police did not make an arrest.
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