NYT: Case Pits Technology-Based Police Search Against Citizens’ Rights by Dan Frosch:
AURORA, Colo. — On the afternoon of June 2, the authorities say, a former music teacher named Christian Paetsch walked into a Wells Fargo bank waving a gun and ordered everyone to lie down.
About 15 minutes later, a phalanx of police cars descended upon an intersection a few miles away, blockading dozens of shocked motorists — including Mr. Paetsch, whom the authorities had tracked with a GPS device buried in the $26,000 he was accused of stealing.
But with only the faintest physical description and unsure which vehicle the device was in, the police trained their weapons on all 20 cars at the intersection and ordered people to show their hands. For nearly two hours, the police ordered every driver and passenger to step out of their cars, even handcuffing some of them, before discovering the missing money and two loaded firearms in Mr. Paetsch’s S.U.V.
The case, now winding its way through the federal court system, is being watched by Fourth Amendment lawyers and law enforcement experts. While advanced technology now gives the police the power to shadow a suspect moments after a crime is committed, there are still legal questions over how wide a net the authorities can cast while in pursuit.
I predict the defendant will lose the motion to suppress. Was the police conduct unreasonable? Arguably, but what's his standing to challenge the seizure of others? And consider this dicta by Justice Jackson dissenting in Brinegar v. United States, 338 U.S. 160, 182-83 (1949), which inevitably will come back to life:
And we must remember that the authority which we concede to conduct searches and seizures without warrant may be exercised by the most unfit and ruthless officers as well as by the fit and responsible, and resorted to in case of petty misdemeanors as well as in the case of the gravest felonies.
With this prologue I come to the case of Brinegar. His automobile was one of his "effects" and hence within the express protection of the Fourth Amendment. Undoubtedly the automobile presents peculiar problems for enforcement agencies, is frequently a facility for the perpetration of crime and an aid in the escape of criminals. But if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.
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— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
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—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
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—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
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—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
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exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
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rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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—Johnson v. United States, 333 U.S. 10, 13-14 (1948)