Tag Archives: constitutional law

“My Circuits Gleam”: A Fourth Amendment Query

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A legal question for Fourth Amendment lawyers out there:

It’s settled law that if you’re in a Terry stop, you have a duty to comply with the orders of the officer who stops you. Likewise, if you receive a summons or citation from court, you’re obliged to respond. Etc.

But suppose that you (somehow) discover a listening/video device planted or inserted in or on an object that would ordinarily be protected by the Fourth Amendment, e.g, your car, your home, your computer, your phone. You surmise that the device was put there by the government in order to spy on you–but can plausibly assert (whether truthfully or not) that you don’t know for sure who put it there. Are you obliged to “comply” with government surveillance by analogy with a Terry stop? In other words, are you obliged to let government surveillance continue without interference after you’ve discovered that it’s taking place? Or can you destroy or disable an A/V device on the grounds that no officer was present to give you an order to comply with anything?

If you do destroy/disable the device, and the device was there through a procedurally correct search warrant, can you be held criminally liable for undermining the government’s attempt to surveil you? There is, after all, no way for the person under surveillance to know that the surveillance in question had the authority of a warrant.

My potentially archaic terminology of a “listening/video device” conjures up Cold War imagery of “bugs,” but I really mean: any discoverable form of electronic surveillance (e.g., a GPS device that you find attached to your car). The issue overlaps with encryption law, but encryption pre-empts surveillance before it takes place, rather than disabling surveillance that’s currently under way–and I’m thinking about the latter. The issue I have in mind strikes me as slightly more analogous to possession of a radar-detector than to the use of encryption, but that analogy breaks down pretty quickly as well.

Hence the question, as it seems a distinctive sort of case. The issue is not addressed in the very basic criminal procedure textbook I use, Matthew Lippman’s Criminal Procedure: the textbook assumption seems to be that electronic surveillance almost always goes undiscovered by the target. (I own the second edition of the book [2013], not the most recent one.)

Analogous issues may seem to arise for physical surveillance, but I don’t think they do: for the most part, if you’re under physical surveillance out in public space, you’re in plain view: you can act as you please (within the normal limits of the law), and so can the government. In that case, you have the right to go out of plain view, in which case they have the right to search or seize you if they have reasonable suspicion that you’re committing a crime. But that’s just a Terry stop, so it raises no new issues.

I’ve been surveilled twice by drone (by Israeli rather than American authorities). I’ve always wondered what would have happened, legally speaking, if I’d found a way to knock the drone out of commission, and pretend that I had no idea who had sent it. Of course, practically speaking, I kind of know what would have happened.

(Thanks to John Semel for the link to the GPS story above, and for some helpful comments on Facebook.)

Talking Treason

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The U.S. Constitution defines “treason” as follows (Article III, Section 3):

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

It’s not the only possible way of defining treason, but it’s the legally accepted definition of treason in the United States. Treason is a crime, and like all crimes, those accused of it enjoy a presumption of innocence until proven guilty in a court of law. Since it’s a capital crime, punishable in principle by death, the presumption of innocence matters even more than it ordinarily would, not that the presumption is any less applicable to non-capital crimes.* Continue reading →

Felician University Event: “Police Stops: What Are Your Rights? What Should You Do?”

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I’m pleased to announce the second event in Felician University’s ongoing series on Race and Criminal Justice in America, “Police Stops: What Are Your Rights? What Should You Do?”

The event features two speakers, Maria Lopez-Delgado and John E. Link. Maria is a 2013 graduate of Felician University (a philosophy major, by the way) and 2016 graduate of UNC School of Law; she currently works for the New Jersey Office of the Public Defender. John is an Adjunct Professor of Criminal Justice at Felician, where he teaches Criminology and Criminal Law; he was until recently Chief of Police in Clifton, New Jersey. I’ll be serving as moderator.  Continue reading →

AUMF, ISIS, and Imperialism

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I rarely if ever agree with Bruce Ackerman on political matters, but the politics of warfare, I suppose, makes for strange bedfellows. What Ackerman says in this Op-Ed, pointedly titled “Obama’s Betrayal of the Constitution,” seems to me exactly on target:

Mr. Bush gained explicit congressional consent for his invasions of Afghanistan and Iraq. In contrast, the Obama administration has not even published a legal opinion attempting to justify the president’s assertion of unilateral war-making authority. This is because no serious opinion can be written.

This became clear when White House officials briefed reporters before Mr. Obama’s speech to the nation on Wednesday evening. They said a war against ISIS was justified by Congress’s authorization of force against Al Qaeda after the Sept. 11, 2001, attacks, and that no new approval was needed.

But the 2001 authorization for the use of military force does not apply here. That resolution — scaled back from what Mr. Bush initially wanted — extended only to nations and organizations that “planned, authorized, committed or aided” the 9/11 attacks.

Mr. Obama is rightly proud of his success in killing Osama bin Laden in 2011 and dismantling the Qaeda network he built up. But it’s preposterous to suggest that a congressional vote 13 years ago can be used to legalize new bombings in Syria and additional (noncombat) forces in Iraq.

To suggest that a Congressional vote 13 years ago responding specifically to the 9/11 attack can be used to legalize new warfare in Syria is to flout the plain meaning of the words of the original Authorization of the Use of Military Force, and to suggest by implication that words have no meaning. It’s about as obvious a violation of the rule of law as can be imagined–a paradigm case of violation staring us straight in the face, while masquerading as law. It also marks another sad milestone in the United States’s childish, eyes-wide-shut descent into imperialism.