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Federal Appeals Court Rules Evidence from Warrantless GPS Tracking Does Not Have to Be Suppressed

By: Wednesday October 1, 2014 8:59 pm

Government photo from the Third Circuit Court of Appeals

A federal appeals court ruled that law enforcement does not need to get a warrant in order to legally use evidence obtained from surveillance in a criminal case. The court also effectively endorsed consultation among officials in the executive branch instead of going to a judge for a warrant as “good faith” conduct.

In 2010, FBI agents attached a GPS tracking device to the car of Harry Katzin in order to track his movements because they suspected he was involved in the robberies of multiple Rite-Aid pharmacies. The agents did not seek a warrant from a judge. They used the tracking device to follow Katzin as his car drove to another Rite-Aid, and Katzin was arrested.

The Supreme Court decided unanimously in US v. Jones in 2012 that when law enforcement attaches a GPS device to a vehicle and uses it to track a person a “search” under the Fourth Amendment is taking place.

The Third Circuit Court of Appeals did not dispute the fact that Katzin’s arrest was the result of warrantless surveillance, according to the Supreme Court decision. However, what the court did have a problem with was using the “exclusionary rule” to suppress the evidence from the surveillance, which violated Katzin’s Fourth Amendment rights.

The court ruled 8-5 that the evidence should not be suppressed. Judge Franklin Van Antwerpen, appointed to the appeals court by President George W. Bush, wrote the majority opinion [PDF].

“Despite its connection to the Fourth Amendment, there is no constitutional right to have the evidentiary fruits of an illegal search or seizure suppressed at trial,” Van Antwerpen argued in the court’s opinion. A Fourth Amendment violation does not automatically require exclusion of evidence. “The exclusionary rule is instead ‘a judicially created means of effectuating the rights secured by the Fourth Amendment.’”

Van Antwerpen further explained, “Where the particular facts of a case indicate that law enforcement officers “act[ed] with an objectively ‘reasonable good-faith belief’ that their conduct [was] lawful, or when their conduct involve[d] only simple, ‘isolated’ negligence,” there is no illicit conduct to deter.” The agents believed their actions were lawful.

Since the violation of rights occurred before the Supreme Court decision, Van Antwerpen suggested, “The agents’ inadvertent Fourth Amendment violation was neither ‘calculated’ nor the result of a ‘deliberately cavalier or casual’ attitude toward appellees’ Fourth Amendment rights, and that the agents were likely ‘surprise[d]” by Jones.’” And added, “Application of the good faith exception turns on whether the agents, at the time they acted, would have or should have known their installation of the GPS and their subsequent monitoring of Harry Katzin’s vehicle were unconstitutional.”

One key aspect of the majority’s decision was dependent upon the fact that agents had consulted and received approval from the Assistant US Attorney before engaging in the warrantless surveillance.

“It was [Justice Department] policy at the time that a warrant was not required to install a battery-powered GPS on a vehicle parked on a public street and to surveil it on public roads. We have previously considered reliance on government attorneys in our good faith calculus and concluded that, based upon it in combination with other factors, “[a] reasonable officer would…have confidence in [a search’s] validity.”

Judge Joseph A. Greenaway Jr., who was appointed to the appeals court by President Barack Obama, wrote the dissenting opinion and specifically called attention to this consultation being part of the justification for not suppressing evidence.

“I do not believe that this intra-executive consultation absolves police personnel’s behavior,” Greenaway wrote. “Now, the assumption by law enforcement that their own self-derived rule sanctioned their conduct becomes true, thanks to the majority’s analysis. Such decision-making is wrongful conduct that can and should be deterred—for that is the primary purpose of the exclusionary rule! The police practice at issue here effectively disregarded the possibility that we could find a GPS search constitutes a Fourth Amendment violation requiring a warrant.”

“Now, law enforcement shall be further emboldened knowing that the good faith exception will extricate officers from nearly any evidentiary conundrum.”

Specifically,” he added, “Law enforcement contends that they acted reasonably by consulting with their co-investigators at the U.S. Attorney’s Office. However, what is missing here is neutral authorization of any sort for the conduct undertaken by the police. Consultation with the U.S. Attorney’s Office is not a panacea for the constitutional issues raised here.”

…[T]he agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized…

Greenaway also argued, “Courts have given power to the words of the critics by using the good faith exception to chip away at the breadth of the rule. The majority, in its alternative holding, expands the good faith exception to the point of eviscerating the exclusionary rule altogether by failing to provide any cognizable limiting principle.”

He stated, “Law enforcement personnel made a deliberate decision to forego securing a warrant before attaching a GPS device directly to a target vehicle in the absence of binding Fourth Amendment precedent authorizing such a practice. Indeed, the police embarked on a long-term surveillance project using technology that allowed them to monitor a target vehicle’s movements using only a laptop, all before either this Circuit or the Supreme Court had spoken on the constitutional propriety of such an endeavor.”

And Greenaway contended, “Neutral authorization for law enforcement’s actions has been the hallmark of the good faith exception’s application. Without this control, what is the fail-safe to preclude further erosion? I fear there is none. For these reasons, I respectfully dissent.”

Living Life in Prison Without Parole for Nonviolent Drug Offenses: Euka Wadlington & His Fight for Freedom

By: Wednesday October 1, 2014 10:34 am

Euka Wadlington

“When you have a life sentence, it does not promote rehabilitation,” according to Euka Wadlington, a forty-eight year-old African-American who is serving two life sentences in federal prison in Greenville, Illinois. “By design, you are locked up in a cage until you die.”

As he explains being in prison for life without the possibility of parole, “You have no good time to work towards, you can’t work certain jobs in the institution, you can’t enroll in certain classes that works towards reentry, and you could never go to a federal camp. So, being stripped of these few things, you are naked.”

For the past couple of months, I have been exchanging emails with Wadlington. He also has been calling me from prison to talk about his case and his effort to convince President Barack Obama to commute his sentence so he does not have to die in prison.

How did Wadlington end up being sentenced to prison for life without parole?

*

A 2013 report from the ACLU on life without parole sentences called “A Living Death” [PDF] highlighted Wadlington’s case. He was arrested in Chicago in 1998 after a “failed drug sting in which a confidential informant attempted to induce him to sell cocaine to an undercover agent.”

According to Wadlington, a government informant, who was an admitted cocaine and meth dealer cooperating with the government to avoid incarceration, tried to get him to participate in a money-making scam in order to discharge a longstanding debt. (The informant had loaned Wadlington $3000 in 1994 to help him open a car wash).

The ACLU report contained more details:

…For months Wadlington refused, and he says he finally agreed to meet with Flame in late 1998 to help him carry out a money-making scam in order to discharge a longstanding debt (Flame had loaned Wadlington $3,000 in 1994 to help him open a car wash). The government informant claimed he had arranged to introduce Wadlington to an undercover agent posing as an Iowa drug dealer, to whom Wadlington was to sell one kilo of cocaine at the planned meeting. Wadlington was arrested at the meeting location, but he had no drugs or weapons on his person or in his vehicle and less than three dollars in his pocket.

Wadlington told me, “There was nobody in my indictment who was caught with drugs that could say, ‘The drugs I was caught with came from Euka Wadlington.’” Those who testified against him were either in trouble with law enforcement or “seeking time reductions for their cooperation with the government. “In other words, I was used as the scapegoat.”

As the ACLU report noted, the prosecutor and government witnesses claimed at his trial in the Southern District of Iowa that Wadlington had been the leader of a drug organization that was “selling powder and crack cocaine in Clinton, Iowa.” They suggested “Tide detergent boxes” were used to conceal the cocaine and transport, cook and distribute the drugs. Almost all of the testimony at trial came from witnesses, who were offered “immunity or leniency for their own drug sentences, including one of Wadlington’s co-defendants who pleaded guilty.”

The Great (Re)Training Robbery

By: Wednesday October 1, 2014 8:04 am

The government already spends approximately $18 billion a year to administer 47 job training programs, do they work?

Barack Obama told Americans every worker deserves to know “if you lose your job, your country will help you train for an even better one.” A nice sentiment,and politically safe; it’s just the wrong answer. Those “better jobs” don’t exist, and training doesn’t create jobs. Despite all that, every year the U.S. government spends billions of dollars on job training, with little impact. What’s the right answer?

In 2007 then-candidate Obama visited Janesville, Wisconsin, location of the oldest General Motors plant in America. Echoing his current promise to support unemployed Americans with job training, Obama proclaimed “I believe that, if our government is there to support you, this plant will be here for another hundred years.” However, two days before Christmas and just about a month before Obama’s inauguration, the plant closed forever, throwing 5,000 people out of work. This devastated the town, because most residents either worked in the plant or in a business that depended on people working in the plant. Congress paid for a $2 million retraining program, using state community colleges the way the government once used trade schools, a century ago, to teach new immigrants the skills they needed to work at GM.

This time around, however, those who finished their retraining programs for the most part simply became trained unemployed people, rather than untrained ones. Having a certificate in “heating and ventilation” or training in new welding techniques did not automatically lead to a job in those fields. There were already plenty of people out there with such certificates, never mind actual college degrees (the United States graduated 1,606,000 students with bachelor’s degrees in 2014.) Of those that completed some form of training, nearly 40 percent did not find work. And those in Janesville who did find work in some field saw their take-home pay drop by 36 percent. A look at Craigslist job ads for the town shows one ad for heating and ventilation work, with a demand for three years experience. Under “General Labor” the work is for janitors, newspaper delivery and things like light manufacturing at $8.50 an hour.

Obama’s calls for job training also belies the fact that the government already spends approximately $18 billion a year to administer 47 job training programs. The actual value of those programs remains unclear. The Government Accountability Office (GAO) found that only five programs assessed whether people who found jobs did so because of the program and not some other cause. In addition, the GAO learned that almost all training programs overlap with at least one other training program. “Federal job training sounds like something that should boost the economy,” writes the Cato Institute, “but five decades of experience indicate otherwise.”

The panacea myth of job training crosses party lines. The GAO reported that in 2003, under the George W. Bush administration, the government spent $13 billion on training, spread across 44 programs. Job training may again be on the GOP agenda, even if the parties differ on the details. Politically, some sort of job training just sounds good. The problem is that it won’t really help America’s 10.5 million unemployed.

So the $18 billion question is: if training is not the answer, what is?

Jobs. Jobs that pay a living wage. The 2008 recession wiped out primarily high and middle wage jobs, with the strongest employment growth in the recovery taking place in low wage employment, to the point where the United States has the highest number of workers in low wage jobs of all industrialized nations.

There are many possible paths to better-paying jobs in America whose spending power can spark a “virtuous cycle.” That would mean more employment leading to more spending and more demand, followed by more hiring. One kickstarter is simply higher wages in the jobs we do have. For example, recent Department of Labor studies show that the 13 states which raised their minimum wages added jobs (at higher wages of course) at a faster pace than those that did not. On a larger, albeit more contentious scale, are options such as a WPA-like program, changes to tax and import laws to promote domestic manufacturing, infrastructure grants and the like. There’s $18 billion to work with for a start.

No matter the path forward, the bottom line remains unchanged: Training does not create jobs. Jobs create the need for training. Anything else is just politics.

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Peter Van Buren writes about current events at his blog. His book, Ghosts of Tom Joad: A Story of the #99Percent, is available now from Amazon

Judge Rejects DOJ’s Secrecy Argument That Public Doesn’t Know How to Evade Location Tracking

By: Tuesday September 30, 2014 5:39 pm

In a case involving a Freedom of Information Act request for information related to government policies and procedures for law enforcement use of cell phone tracking, a federal judge has ordered the release of records, which the Justice Department sought to keep secret by claiming they would “alert law violators”—otherwise known as criminals—to how to [...]

What Will Happen to Secret Prisoners at Bagram as US Withdraws More Forces from Afghanistan?

By: Tuesday September 30, 2014 1:32 pm

The United States will face a deadline at the end of the year and will apparently no longer have the right to hold prisoners in Afghanistan. It will have to decide what to do with a group of prisoners at Bagram military base, who President Barack Obama’s administration would like to continue to hold in [...]

Posse Comitatus and the Fourth Amendment

By: Tuesday September 30, 2014 7:44 am

Back in pre-Constitution America, the British army would burst into the homes and businesses of American colonists. The searches would often be destructive, and intended so. Some of the time the point was to seize incriminating “revolutionary” materials, many times the point was simply to harass and threaten people the Crown feared and wanted to [...]

Judge Urges Firing for Officers Who Dragged, Hog Tied & Brutalized Mentally Ill Inmate at Rikers Island

By: Monday September 29, 2014 7:14 pm

An administrative law judge in New York has taken the extraordinary step of recommending that six corrections officers at Rikers Island prison be fired for dragging, hog-tying and brutalizing a mentally ill African-American inmate. On April 3, 2012, officers moved Robert Hinton, who was living in isolation in Mental Health Assessment Unit for Infracted Inmates, [...]

Documents Reveal More Details on How US Intelligence Gets Around Regulations Against Spying on US Persons

By: Monday September 29, 2014 2:03 pm

The American Civil Liberties Union posted a trove of documents obtained in their Freedom of Information Act lawsuit for information about an executive order President Ronald Reagan signed, which gives the government broad authority to engage in surveillance of international communications, including the communications of numerous Americans. One key “exemption” gives intelligence agencies the ability [...]

US Air Travel Snarled by One Guy Not a Terrorist

By: Monday September 29, 2014 11:13 am

Luckily ISIS has never thought to employ psychotic contractors in a bid to mess with America. ‘Cause that apparently works. O’ Hare Meltdown The problems in America’s creaky infrastructure started Friday morning when Brian Howard, an FAA contractor, wandered into the radar facility in Aurora, Illinois that serves Chicago’s O’Hare airport, one of the busiest [...]

There Is Much to Fear

By: Monday September 29, 2014 7:47 am

One of the exceptional things about Post-Constitutional America is how instead of using the traditional tools of an autocracy– secret police, torture, mass round ups– the majority of Americans have given up their rights willfully, voluntarily, almost gleefully. The key tool used by government to have accomplished this is fear-mongering. Fear is one of our [...]

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