Dog-sniff searches in apartment hallways require a warrant

In April 2016, the Connecticut Supreme Court was asked whether police should be permitted to use a drug-sniffing dog to roam the hallways of an apartment or condominium complex to search for contraband without getting a warrant from a judge. Last week they emphatically answered no.

With the opinion in State v. Dennis Kono, Connecticut now joins a small but growing group of jurisdictions that have extended the robust protections of privacy in the home to apartments. In so holding, the Court answered two important questions: should the police’s power to search a person’s residence be any different depending on whether the residence is an apartment, condominium or free-standing house; and should the search for contraband outweigh any Fourth Amendment rights we have as citizens?

The Home is First Among Equals

The Fourth Amendment protects “persons, houses, papers, and effects“. The United States Supreme Court has repeatedly asserted that a person’s home is “first among equals”:

At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ Silverman v. United States, 365 U. S. 505, 511 (1961).

Thus, the home and the “curtilage” – the area immediately surrounding and associated with the home, are revered in Fourth Amendment law. This is the same whether the analysis is conducted under the Federal Constitution’s Fourth Amendment or Article 1, Section 7 of the Connecticut Constitution.

It is well established that this court, in determining whether the police conducted a search under article first, § 7, “employ[s] the same analytical framework that would be used under the federal constitution …. Specifically, we ask whether the defendant has established that he had a reasonable expectation of privacy in the area or thing searched.” (Citations omitted; internal quotation marks omitted.)

State v. Davis, 283 Conn. 280 (2007). A state constitution can afford greater protections than the Federal Constitution, but not fewer. So in deciding the issues raised by this case, our supreme court relied on our state constitution rather than the Federal constitution.

If the search by the drug-sniffing dog in Dennis Kono’s case had been conducted at the door to his free-standing home, or on the porch of that home, the case would be an easy one: It would be controlled by the United States Supreme Court’s decision in Florida v. Jardines, 6 No. 11-564 (U.S. Mar 26, 2013).

In that case, after receiving an unverified tip that marijuana was being grown at that residence, police walked up to the front porch of a home, with a drug-sniffing dog, and after the dog alerted to the presence of narcotics by sniffing at the door, they obtained a warrant to search the home and ultimately found marijuana.

In Dennis Kono’s case, the facts are identical: there was a tip, police obtained entry into the apartment building legally and the drug-sniffing dog alerted to his apartment after sniffing at the front door.

The only difference in the two cases is that Jardines lived in a stand-alone home and Kono lived in an apartment building. So the question becomes: is that distinction significant and should it be?

Reasonable Expectation of Privacy in Hallway

There are two theories of a search of a home in Fourth Amendment law: a search can be illegal because the police conduct is a “physical trespass” – an unlicensed physical intrusion, or it is a search that violates a reasonable expectation of privacy that we, as a society, have recognized in a place or an object.

Certainly, police have the right to walk up to anyone’s door: whether it be in a condominium, or a free-standing house. They have the right to knock on that door, and if you answer, to ask you questions within limits. But, the United States Supreme Court has held, when on that “curtilage”, the police may not use a drug-sniffing dog to conduct a search absent a warrant. The Court has also said that we have a reasonable expectation of privacy in what we do in the privacy of our homes and police cannot use technology, like thermal imaging, Kyllo v. United States, 533 U.S. 27 (2001), to peer inside without a warrant.

So that required our supreme court to answer: where does the “curtilage” of an apartment begin? Is there such a thing? A common hallway is, by definition, common and lots of people have access to the hallway: other tenants, guests, maintenance workers, sometimes even mailmen and delivery workers. So why should the police not be permitted to stand in that common hallway and do what they please? Do we have an expectation of privacy in the area just outside our doors, even if we reside in multi-unit buildings?

In deciding this question under the State Constitution, our supreme court didn’t decide whether it was a violation of the “trespass” theory or the “reasonable expectation of privacy” theory:

Because we address the state’s claim under the state constitution, we need not decide whether a canine sniff of an apartment door inside a multiunit building violates the fourth amendment. In the absence of significant precedent to the contrary of which we are unaware, however, and despite conflicting court decisions, we agree with the defendant that the better reasoned federal case law concerning the propriety of residential canine sniffs under the fourth amendment supports the defendant’s position in this case. This is true whether the defendant’s claim is reviewed under the Katz line of privacy based decisions or under the principles of curtilage on which the court in Jardines relied and that the Eighth Circuit applied in Hopkins.

Rather, it held that under our state constitution, the use of canine sniffing dogs required a warrant because the questionable act wasn’t the presence of the canines in the hallway, but using the canines to try and search the interiors of residences. Certainly, while people living in multi-unit residences give up a measure of privacy in the area outside their doors, they don’t relinquish all privacy:

the defendant’s “lack of a right to exclude did not mean [that] he had no right to expect certain norms of behavior in his apartment hallway. [To be sure], other residents and their guests (and even their dogs) can pass through the hallway. They are not entitled, though, to set up chairs and have a party in the hallway right outside the door. Similarly, the fact that a police officer might lawfully walk by and hear loud voices from inside an apartment does not mean [that] he could put a stethoscope to the door to listen to all that is happening inside.

The discrimination problem

In finding that use of drug-sniffing dogs required a warrant, the court acknowledged and adopted the concerns raised by the defense about the appearance of discrimination against lower-income individuals if the state’s position were to be adopted. If individuals were to be stripped of their rights to privacy outside their doors based on the type of residence they occupied, the law would be applied disproportionately against those who were unable to afford single-family residences.

Finally, we perceive no principled reason of public policy, and the state has identified none, why, in the context of canine sniffs, the firm and bright line that we draw at the entrance of the house should apply to single-family dwellings but not to dwellings in a multiunit building. Indeed, as the Seventh Circuit observed in Whitaker, allowing police dogs to sniff the doors of apartments but not freestanding homes would be deeply “troubling because it would apportion [constitutional] protections on grounds that correlate with income, race, and ethnicity.

Should anyone have a right to privacy in contraband?

The other argument put forth by the prosecution was that people don’t have the right to an expectation of privacy in contraband. This argument stems from two separate U.S. Supreme Court cases: Illinois v. Caballes, 543 U.S. 405 (2005) and United States v. Place, 462 U.S. 696 (1983). In both those cases, the Court said that people don’t have a reasonable expectation of privacy in contraband. In Caballes, the search was of a vehicle and in Place, a bag at an airport.

This, too, failed – and rightly so. As I wrote in my original post, the State’s argument incorrectly balanced the two values at play: the lack of a right to privacy in contraband and the strong right to privacy in an individual’s residence. Both Caballes and Place were about contraband searches of private items in public, whereas Jardines was about the search for contraband in a single-family residence. When weighing the right to privacy in a home vs. the search for contraband, the home (correctly) wins.

After distinguishing Caballes and Place in the manner above, our supreme court pointed out the concerns and problems with ruling the other way:

Indeed, even if a canine sniff were to reveal nothing about the interior of the home, we believe that the underlying prohibition against unreasonable intrusions into the sanctity of the home cannot abide the public spectacle of a warrantless canine investigation of the perimeters of any home. It may well be that a canine sniff itself is “discriminating and unoffensive” when compared to other physical intrusions of the premises of a home. United States v. Thomas, supra, 757 F.2d 1367.

Even so, such searches are highly visible and readily identifiable. They also hold a resident up to public scrutiny in his own home. As the Florida Supreme Court observed, “[s]uch a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many—neighbors, passers-by, and the public at large—will be viewed as an official accusation of crime.” Jardines v. State, 73 So. 3d 34, 36 (Fla. 2011), aff’d, U.S., 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013).

We also share that court’s concern that, if police officers are permitted to conduct warrantless canine searches of people’s homes, “there is nothing to prevent [them] from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen,” and that “[s]uch an open-ended policy invites overbearing and harassing conduct.” Id.

Thus, because people living in apartments don’t give up their right to privacy outside their doors and because their right to privacy outweighs law enforcement’s desire to walk hallways with sensory enhancing instruments to root out potential illegal activity, the use of drug-sniffing dogs must be accompanied by a warrant signed by a judge.

That the Connecticut Supreme Court relied on our state constitution to decide this in favor of the defendant shouldn’t deter others from relying on this case to support their arguments: the justices in the majority recognize that the arc of jurisprudence seems to favor requiring a warrant and other Federal courts have certainly held so. One concurring justice would have affirmed this search under the Federal Constitution.

The rationale for requiring a warrant: that we have a reasonable expectation of privacy in the hallways outside our apartment doors; that society would not countenance the use of drug-sniffing dogs to peer into people’s private residences; and, that the prohibitions against warrantless searches and seizures are concerned with the protections afforded by places and things, rather than purported criminal or innocent activity, apply with equal force regardless of whether the language comes from the Fourth Amendment or the equivalent of a State Constitution.

Gov. Jay Nixon, public defender

The bastardized adage “those who can’t do, delegate” is usually reserved to express contempt and derision toward those in power who are incompetent to do the job that they’ve been given and instead choose to appoint others to do their work.

The phrase takes a different meaning in Missouri, though, becoming quite literal. There is a crippling lack of funding for indigent defense in that state and public defenders literally cannot do their jobs. Their governor has vetoed bills that would lighten public defender caseloads and passed bills cutting their budget disproportionately.

So chief Public Defender Michael Barrett, when faced with the inability to do, decided to delegate: employing a never used provision in a state statute, he delegated the job of representing an indigent client to that very same governor:

As of yet, I have not utilized this provision because it is my sincere belief that it is wrong to reassign an obligation placed on the state by the 6th and 14th Amendments to private attorneys who have in no way contributed to the current crisis. However, given the extraordinary circumstances that compel me to entertain any and all avenues for relief, it strikes me that I should begin with the one attorney in the state who not only created this problem, but is in a unique position to address it.

Therefore, pursuant to Section 600.042.5 and as Director of the Missouri State Public Defender System tasked with carrying out the State’s obligation to ensure that poor people who face incarceration are afforded competent counsel in their defense, I hereby appoint you, Jeremiah W. (Jay) Nixon, Bar No. 29603, to enter your appearance as counsel of record in the attached case.

While on the one hand, this is a masterful joke by Barrett, on the other, it is a frustrated plea by a man who sees before him the continued failure of the Constitutional guarantee of effective assistance of counsel.

The workload causes them to spend far less time on each case than is recommended by the American Bar Association. For example, the association recommends attorneys spend about 12 hours on each misdemeanor case. On average, Missouri public defenders spend two.

Low-income people charged with crimes — who are disproportionately people of color — bear the brunt of the problem when public defenders are forced to do more with less, according to a study by the Justice Policy Institute.

When court-appointed lawyers don’t have enough time to spend on with cases, those who can’t afford a private lawyerwait longer for trial and get longer prison sentences and harsher plea deals.

The hope is that this appointment forces Gov. Nixon to reasses his obstructionist stance to indigent defense and maybe, for the first time, start acting like a public servant.

One does not need to survive a police encounter

A week or two ago, in light of shootings of officers by civilians and civilians by officers, the Waterbury Police Department held an informational community meeting. The goal was laudable; the talk anything but. The session was titled “how to survive an encounter with the police” and the tips from the Waterbury police chief included:

If an officer stops your car, if they ask to search your person or vehicle, if they demand entry into your home, comply and then complain later to the department’s internal affairs office and police chief’s office if you feel your rights have been violated, Riddick said.

This story was picked up by Radley Balko of the Washington Post, who roundly criticized the fatalistic tone of the advice. While others (criminal defense lawyers even) agreed with the Chief and suggested total compliance in order to avoid getting shot, subsequent events showed that even that was not a foolproof tactic.

As a citizen, I take a rather dim view of violence in general, especially violence against police officers whose job it is to protect each one of us. It’s a difficult job and we need someone to do it. As a public defender and criminal defense lawyer, I take offense to the idea that in order for me, as a citizen, to “survive” an encounter with police, I must totally submit and comply with every order they give. With that in mind, the following letter to the editor was submitted to the local Waterbury newspaper and published today. It’s behind a paywall on their site, so I’m reproducing it here:

Letter to the Editor – Response to “Surviving a Police Encounter” Presentation

Last week the Waterbury Police Department held an informational session with members of the community regarding how to survive a police encounter. Undoubtedly tensions between police and the communities they serve – particularly minorities – are at the forefront of our national conversation after the tragic deaths of so many – officers and civilians – in recent weeks. Yet it is extremely irresponsible of the Police Department to frame this issue as “surviving an encounter” with the police, as if every interaction is, if nothing else, presumed hostile and that the police’s natural state is that of aggression and violence and it is the civilian’s fault if police utilize force.

The Department would be well served to remember that they have been hired to protect and serve all civilians, not threaten them into giving up their Constitutional rights in the name of safety. Chief Riddick’s advice to members of the community to consent to a search if requested to do so by an officer is incorrect and dangerous. Chief Riddick is suggesting that asserting one’s Fourth Amendment right to be free from unreasonable searches and seizures can reasonably lead to police force being used against a civilian. There is nothing more contrary to the values of the American democracy than the suggestion that to obtain some temporary safety, we have to give up our liberties.

It is also contrary to the realities of our modern day institutions: the idea that there is meaningful redress for a grievance or complaint later is simply laughable. The reality is that if an individual consents to a police officer’s request to search they have waived their ability to challenge that search in court at a later time. Once certain rights are given up they cannot be taken back. Grievances filed with police departments are notoriously ineffectual. The current system of investigating police misconduct does not work and lacks the faith and support of the community.

Chief Riddick’s comments also highlight the fundamental divide in our communities: there is a lack of trust and faith between the police and civilians. Our police policies and practices have been for so long skewed against citizens of color that the communities are finding it hard to breathe. Police, having suffered senseless violence at the hands of civilians, are understandably afraid and cautious in their interactions. This leads to heightened tensions from both sides and itchy trigger fingers. In order for us to have a way forward, we need to put aside the mindset that police are against the community and vice-versa and instead start to look at this as a collective problem and start rebuilding trust and faith in our police institution by fostering mutual respect. Admonishing citizens that in order for them to “survive” a police encounter, they must surrender their Constitutional rights is a non-starter.

 

Utah v. Strieff: legalizing illegal stops

It used to be a basic tenet of American Constitutional jurisprudence that if police illegally stop an individual and find some incriminating evidence on him, the evidence must be suppressed, that is, it cannot be used as evidence to prove the guilt of that individual.

The rationale behind this rule – the “exclusionary rule” – is fairly straightforward: it is a judicial remedy that gives life to the Fourth Amendment’s protections against illegal searches and seizures. If there were no punishment for violating the Constitution, then violations of the Constitution would be meaningless. Now, this is not to say that there aren’t exceptions to this rule – certainly there are: (1) the independent source exception, (2) the inevitable discovery exception, and (3) the attenuation exception.

The United States Supreme Court just drove a police cruiser sized hole through that third exception. In Utah v. Strieff, the Supreme Court held that barring “flagrant misconduct” – whatever that may be- the evidence seized as a result of an illegal stop does not need to be suppressed as long as there is an intervening act, such as, in the case of Strieff, an outstanding warrant. The outstanding warrant gave the officer permission to arrest Strieff, which gave him authority to search him. Therefore, the originial illegality, the reason giving rise to the stop in the first place, is irrelevant.

Attenuation

Typically, the attenuation exception has required much greater distance between the illegality and the evidence sought to be suppressed. The same Supreme Court once said that “the question to be resolved concerning the admissibility of derivative evidence is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

In Strieff, there was no question that but for the initial illegality, the police would not have found the contraband. Instead of focusing on the degree of attenuation, however, Justice Thomas’ majority opinion simply decides whether the existence of a warrant, by itself, is attenuation. In finding that it is, the opinion opens a veritable Pandora’s box of policing overreaches.

No one is more attuned to this than Justice Sotomayor, who pens an instant classic dissent in which she chides the majority for its simplistic thinking and its disguising the evisceration of Fourth Amendment protections with the cloth of the moral righteousness of the good-faith inquiry of the police officer.

While Justice Sotomayor’s dissent is breathtaking in its honesty, we must be careful not to fetishize it while neglecting the real impact that this opinion will have on the lives of everyday Americans. Americans who are stopped differently based on the color of their skin. Americans who, because of their race, are subjected to more frequent police searches despite being less likely to carry contraband.

Impact on Racial Profiling

This is how policing will work post-Strieff: police will stop individuals they deem suspicious, with or without cause. They will search them and inquire into the existence of warrants. If they search and nothing turns up, everyone goes on their way, no one any wiser. If something does turn up, then their illegal stop has reaped its benefit and the arrest and search will be upheld under Strieff.

If police are permitted to illegally stop motorists without fear of suppression of evidence found as a result of that illegal stop, then there is no incentive to make traffic stops that comply with existing law and preferred societal norms. Racial profiling, currently the subject of consternation and disapproval, will become de rigueur.

Those stops where “nothing happens” happen routinely and they happen most frequently to minorities. For instance, of the roughly 260,000 New Yorkers stopped by police between 2013-2015, roughly 86% of them were innocent of any wrongdoing. Of those stopped and frisked, more than half were African American, a third were Latino and the rest white. Between 2001 and 2013, 51% of New York City’s population over age 16 was black or Hispanic. Yet during that period, 82% of those arrested for misdemeanors were black or Hispanic.

In Boston, African-Americans comprised 63% of those betwwen 2007 and 2010 observed, stopped, interrogated, frisked, or searched without making an arrest although they made up 24% of the city’s population.

Police are already permitted to take into account “high-crime neighborhoods” – euphemism for minorities – in their calculus for determining reasonable suspicion. In Connecticut, officers are permitted to “briefly detain” an individual for whom they have no suspicion if that individual is accompanying someone they wish to legally detain. Once again, the existence of a warrant as an intervening circumstance would permit officers to make routine, unsupported stops of minorities, merely based on their presence in what are perceived to be “high crime neighborhoods” despite a Constitutional prohibition on such stops and searches.

The Supreme Court has made a concerted effort to gut the exclusionary rule. There’s no suppression if the search is based on a reasonable mistake of law, or based on the officer’s negligence, or based on a “pretextual stop“, or merely if substantial social costs exist to skip exclusion.

Now, evidence need not be suppressed even if it came about as a result of a stop completely devoid of any suspicion of wrongdoing. By continually restricting the application of the Fourth Amendment, the Supreme Court is making it difficult for all of us to breathe.

[See also: Orin Kerr at SCOTUSBlog has a detailed criticism of the opinion.]

Recognizing and correcting racial biases in traffic stops

One of the things I touched on in my post about implicit racial biases was that they were distinct from the explicit racial discrimination seen in the criminal justice system. As an example of racial discrimination that has been pushed to the forefront, I mentioned the disparity in traffic stops.

A month or so ago, CT released a report on racial profiling in traffic stops. TrendCT, a CT Mirror site, has done a tremendous job of breaking down the data and providing valuable insight into how Connecticut police stop motorists, why, and what their racial breakup is.

The greatest source of tension in the CJS has long been interactions between police – usually white – and them minority populations they are charged with protecting and serving. In my post on the 50th anniversary of Miranda (and on WNPR’s Where We Live), I mention the history of the deep south in the 1930s, leading up to Miranda in 1966 and how white deputies beat confessions out of black suspects.

This persists today, but in a different form. The distrust exists because minorities perceive police treating them differently. This leads to more frequent arrests, more convictions and harsher treatment by judges and prosecutors.

My admonitions to the defense bar apply to police as well: if we are to increase trust in the police and make the justice system more fair, we need to question why we make disproportionate stops of minorities and how we treat them after they are stopped.

Implicit racial biases are the cracks in the criminal justice system

Just this week, in a case reversing a death sentence because of a judicial conflict of interest, Justice Kennedy wrote that “[b]ias is easy to attribute to others and difficult to  discern in oneself.”

Our country, in the midst of its ongoing national discussion on racial disparity, inequality and bias in the justice system has taken noticeable steps in attributing bias to others. There is no dearth of studies and reports pointing out the iniquities of justice in America: black and minority defendants are 30% more likely than whites to go to prison for the same crimes, for instance.1 in 3 people arrested for drug crimes are black, even though drug usage rates don’t vary widely. These inequalities came to light most harshly through the incidents in Ferguson and New York City.

This disproportionate treatment of minorities in policing continues in the face of contrary evidence. For instance, when stopping cars in Ferguson, blacks were 3.5 times more likely to be pulled over. When stopped, blacks are searched at a higher rate than whites. However, when searched, blacks are less likely to have contraband or weapons on them than whites. Yet, blacks are arrested at a higher rate than their white counterparts. This disparity is not limited to Ferguson, but can be found countrywide, including the “stop and frisk” policies of New York City and the idyllic suburbs of Connecticut.

Studies have also recognized the cumulative impact of racial bias in policing on sentences and further downstream consequences: being arrested more frequently leads to more frequent convictions and that leads to longer criminal records which leads to lengthier sentences, which coupled with a distinct lack of rehabilitative services, leads to higher recidivism. For the same or similar crimes, whites aren’t caught in this toxic dead end loop.

Even for first time offenders, blacks are more likely to get higher sentences than whites. It is no secret that in the criminal justice system, there is a race/gender hierarchy: white women are treated most favorably, followed by minority women, then white men and then there’s a significant gap until we get to the minority men.

There is no “other”

To say, however, that the bias in the racial justice system exists in the “other” is to perpetuate a lie. The system isn’t a sentient machine, chugging along in its own, even thought it may feel so at many times. The system is made up of thousands upon thousands of individuals, most well-meaning and hard-working. Police officers aren’t inherently evil individuals; the judicial branch isn’t a kangaroo court; prosecutors aren’t all lying, cheating and dishonest; public defenders aren’t universally overworked and incompetent.

In fact, most when polled individually would attest to the nobility of their function and the sanctity of their duty. They all believe that they are doing justice – for whom, remains in dispute, but justice nonetheless.

So how does a collective group of mostly well meaning individuals produce such offensive and disproportionate results? The answer, many believe, is that even the best of us are victim to implicit biases.

The idea of implicit bias is that we are subconsciously altering our interactions with other people based on preconceived notions that we are, obviously, unaware of. This is not a case of alleging overt racism in the criminal justice system, which the country has become acutely aware of. This is the other kind: the well-meaning kind.

An Inability to Relate

While the vast majority of defendants in criminal courts are black and Hispanic, the legal profession is overwhelmingly white. Judges are predominantly white. Prosecutors are overwhelmingly white and public defender offices have large white majorities.

The best of us – myself, a minority, included – are affected (or can be) in some way, major or minor, by the stereotypes that our society and pop culture perpetuate. We don’t do this intentionally or knowingly, but we all are the products of our experiences and upbringing and for the most part they vary widely from those of our clients.

Judges who have been raised in white suburbs and attended prestigious law schools and worked in fancy corporate law firms cannot, as much as they try, to understand the circumstances that led the 17 year old black youth with a firearm to stand in front of them. Their sentencing will naturally be colored by their own life experiences and their own beliefs about others’ motivations.

When faced with an individual who looks like them, who has lived the life they have, judges and prosecutors are more likely to find common ground and empathize with the defendant’s predicament. There is no greater example of this than the recent Stanford sexual assault case. While the 6-month sentence for raping an unconscious young woman strikes many as unconscionable, when you compare the judge to the defendant, you get an insight into the rationale. Both the judge and the defendant attended Stanford. Both of them played “suburban” sports: lacrosse and swimming. When the defendant Turner stood in front of the judge, it was easy for the judge to see himself in the young man. It was easy for the judge to sympathize and understand his predicament, because, but for the grace of God…

Yet when that judge is faced with a black youth from an underprivileged background, more often than not he doesn’t have that common ground. It’s all too see for a judge see only the demographic standing before him, not the individual. Falling prey to these biases is how we come to disparate sentences.

The Defense is not Immune

While a significant amount of research on bias focuses on police, judges and prosecutors, it would be foolish to assume that defense attorneys are immune from its effects. Defense attorneys are after all, contrary to popular belief, people. As people, defense attorneys are subject to the same pitfalls as others. But as stewards of Constitutional rights and guardians of individual and individuals’ liberty, permitting implicit biases to affect representation of the accused is especially dangerous. For instance, a study of death penalty lawyers found that they, too, had the same biases as the general population: associating white with good and black with bad.

Recognizing these biases within the defense community and addressing them is critical. Some are asking whether defense attorneys spend less time on black clients. Jeff Adachi, the inimitable public defender of San Francisco, penned a powerful column in the Washington Post, describing his own journey from disbeliever to proponent of implicit bias recognition and training in the defense community.

When a defense attorney is confronted with a client to whom he cannot relate, how is his assessment of that client’s defenses and explanations altered? Do defense attorneys recommend higher sentences because they harbor the same biases of minorities’ guilt? Is there a failure to investigate cases involving minorities because defense attorneys are resigned to their eventual conviction? Do defense attorneys recommend pleas and dispositions to minorities that they wouldn’t to a Stamford swimmer? Do defense attorneys work harder for white clients in order to preserve their better chances at a more successful life and give in to their biased belief in the inevitability of a minority defendant acquiring a felony conviction?

Adachi’s column and the growing body of research in this area aren’t meant to castigate any particular individual or to raise racial bias allegations. They are, however, extremely useful as a gently reminder to all of us that perhaps we need to try harder to recognize that we may unknowingly be treating clients differently based on their race or gender.

A conversation about implicit bias is a difficult conversation; it is a subtle difference away from labeling oneself as racist. This conversation, however, is critical: it allows us to recognize and acknowledge the existence of these biases that would otherwise continue to operate and subconsciously affect our behavior. Admitting that we are subject to these biases allows us to correct for their negative impacts.

Recognizing these biases in ourselves allows us to honestly point them out in others – judges, jurors and prosecutors – and allows us to have the real honest dialogue that will hopefully bring them on board with acknowledging that the entire justice system is skewed and will remain so unless we examine ourselves and the way we treat those who are accused of crimes.

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This post originally appeared on NAPD.

Miranda, you’re getting old

You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford one, one will be provided for you.

These 50 or so odd words have entered and affixed themselves into our collective consciousness. There isn’t a set of phrases more ubiquitous and well-known in modern American culture than these so-called “Miranda” warnings. The case that spawned them – Miranda v. Arizona – turns 50 today.

As someone who moved to this country 16 years ago, pop culture taught me these warnings before I’d even learned about the United States Supreme Court and this Miranda decision. Suspect after suspect getting handcuffed by cops, getting pushed into squad cars, with the recitation of the rights fading in over the background music. This is the indelible image of the police procedural in America.

The problem with anything so ingrained in popular culture is that a lot of people know what the warnings are but they don’t understand why. Many view them as pesky “technicalities” that let the “bad guys” get away. They’re just words standing in the way of the Government performing its law enforcement function.

The warnings, of course, are more than words. They are, according to Chief Justice Warren, the “restraints society must observe.” A society that, at the time of the founding, had great experience with the injustices of coerced confessions. As the supreme court wrote in 1896 in Brown v. Walker:

While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition.

The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand.

But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.

A society which, at the time of the Miranda decision, had dealt with cases like Brown v. Mississippi in which a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, who was black and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and still declining to accede to the demands that he confess, he was finally released and he returned with some difficulty to his home, suffering intense pain and agony.

The record of the testimony shows that the signs of the rope on his neck were plainly visible during the so-called trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the State of Alabama; and while on the way, in that State, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.

And so the Miranda warnings were born: not as an opportunity to give the guilty a chance to avoid conviction, but to protect each and every one of us, regardless of guilt or innocence. The warnings, of course, don’t create the rights – they give voice to them. They remind the accuser and the accused that the Constitution protects us all: it protects our absolute right to not incriminate ourselves. It holds that right firm against any tactics that the government may use to bend and overbear our will.

The constitutional foundation underlying Miranda and the privilege against self-incrimination is the respect a government—state or federal— must accord to the dignity and integrity of its citizens.

Miranda, of course, isn’t about protecting criminal defendants and helping the guilty get away with crimes. It is about our collective responsibility in the legal profession to ensure that the rights of every resident of this country are zealously and jealously guarded and protected.

Testing the boundaries of Miranda isn’t limited to whether a defendant gave a confession or not, but rather the circumstances under which such a confession was obtained. Sadly, the news today is littered with stories of people falsely confessing to crimes they didn’t commit and spending decades in prison. And these confessions came about not by force or threat or violence, but by subtle psychological pressures and the desire to please figures of authority.

Going forward, the challenges for judges and lawyers are not only interpreting the effects of various circumstances on the voluntariness of confessions, but also resisting temptation to continue to limit the application of Miranda. Our courts have done a remarkable job of carving out exceptions to Miranda and finding ways to negate its application: whether it be through the dubious parameters of the “public safety exception” or by unrealistically putting the burden on the defendant to unequivocally invoke his right to silence by saying that out loud.

Courst also will have to grapple with its application to emerging technologies. Luddites excepted, most people have smartphones that allow one to lock or unlock using a fingerprint. Courts across the country have started to grapple with the question of whether police can require a suspect to unlock their phones using their fingerprints. Some have said yes, some have said no. How does this square with the protections of the principles enunciated in Miranda? If Miranda was to ensure that no statement was given unless entirely voluntary, then opening or unlocking a phone to give police access to incriminating evidence falls within that realm.

If Miranda’s famous words are to continue to have meaning, they must mean that each and every one of us has the absolute right to remain silent. If our courts refuse to apply Miranda with such strictness, then all we will be left with is a pop culture relic.

—–

N.B.: After the Supreme Court reversed his conviction, Miranda was retried. This time, they didn’t use his confession, but rather the testimony of a woman who claimed he confessed to her. He was convicted and sentenced to 20-30 years in jail. He got out on parole and made a small living autographing police officers’ “Miranda cards.” One day he got into a fight at a bar and was stabbed to death. The suspect in his case was Mirandized and unlike Ernesto Miranda, he invoked his privilege and did not give a statement. Lack of evidence led to the charges against that individual being dropped.

Connecticut’s death penalty remains abolished

Today, the Connecticut Supreme Court affirmed the abolition of the death penalty in this state, in an extremely contentious and hotly anticipated opinion in the matter of State v. Peeler.

In August 2015, the Court issued a divided 4-3 opinion, ruling that the legislature’s prospective abolition of the death penalty in 2012 rendered the death penalty unconstitutional as to all death row inmates and thus Connecticut could no longer have a death penalty.

A few months later, the State petitioned for reargument, which the Supreme Court denied. In another appeal pending at that time, State v. Peeler – also a death penalty case – the court did grant the State’s request for supplemental briefing and argument.

The crux of the State’s complaint – echoed by Santiago dissenters – was that the Supreme Court based its decision on matters that it did not have the opportunity to brief. This position was supported by some commentators and rejected by others.

The big question that everyone was waiting for an answer to was if the Court would quickly and summarily reverse itself on a major issue such as the death penalty and what that meant for stare decisis in Connecticut. If the Court reversed itself, and with the addition of a new member to the Court held the death penalty constitutional, would that violate the Eighth Amendment’s prohibition against arbitrary and capricious punishments?

Today, the Supreme Court answered all those questions. In a per curiam decision, the Court concluded that Santiago governed and that it should not be overruled. The fact that the majority opinion was per curiam should not fool anyone. There are 5 separate written opinions. The major question was the shuffling of votes and who would vote to do what.

Stare Decisis

Most notably, the Chief Justice, who voted to affirm the death penalty in Santiago, voted to affirm abolition today. Her change in vote was not driven by a sudden realization that the death penalty should be held unconstitutional, but rather her realization that a swift reversal of such a groundbreaking decision so quickly, and based solely on the change in the membership of the Court, would so untenably undermine the legitimacy of the rule of law in Connecticut:

When neither the factual underpinnings of the prior  decision nor the law has changed, “the [c]ourt could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from [the prior decision]. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.”

Quoting Planned Parenthood of Southeastern Pa. v. Casey.

The Chief Justice correctly noted that the role of the Judicial Branch was to fashion a coherent jurisprudence that litigants and the citizens of the State could rely on. To so swiftly reverse itself on a matter of such critical importance would only serve to undermine its authority and legitimacy as the ultimate arbiter of the law.

Regardless of any reliance on the majority decision in Santiago, or lack thereof, stability in the law and respect for the decisions of the court as an institution, rather than a collection of individuals, in and of themselves, are of critically important value, especially on an issue of such great public significance as the constitutionality of the death penalty.

Change in membership of the Court

The Chief, and many others, were concerned with the effect of reversal of Santiago solely because a new member was now on the bench. That new member is Justice Richard Robinson, who took over from Justice Norcott, who voted for – and always has – abolition. To have a vote on so critical an issue of public policy reversed in less than a year simply because one member of the Court is now different, would be the very definition of arbitrary and capricious. Justice Palmer, who authored the abolition decision in Santiago, said as much:

The state now proposes that we reauthorize the  death penalty and proceed to execute the defendant, Peeler, solely on the basis of the fact that a different panel of this court, having considered essentially the same arguments only months later, might reach a different  result. Nothing could be more arbitrary than to execute one convicted capital felon who committed his offense prior to the enactment of P.A. 12-5 but to spare another, solely on the basis of the timing of their appeals.

The Chief Justice also noted that three of the Santiago bench were still on the bench when they heard Peeler (Palmer, McDonald, Eveleigh) and all three joined in an opinion today rejecting the State’s arguments. The fourth – Justice Norcott – was always opposed to the death penalty. Thus, the Chief Justice reasoned, had the State presented its arguments the first time around, the outcome would not have been different:

Accordingly, it is clear that, if these issues had been raised and briefed in Santiago, the result would have been no different. In fact, the only change that has occurred is a change in the makeup of this court, which occurred after oral argument in Santiago but before the decision was released.

To indulge the State and reverse Santiago solely because the makeup of the Court is different by one person is not only arbitrary and capricious, but also renders every opinion ever issued non-binding. All a party has to do is wait for a Justice to retire to re-litigate and rehash issues that were considered “settled.” The legitimacy of the law would never be able to survive such a regular assault.

Addressing the State’s complaints

Justice Palmer, who authored the decision abolishing the death penalty in Santiago, wrote a lengthy concurrence rejecting each argument made by the State. Most notably, he dispensed with the State’s underlying argument that the Supreme Court just did not have the authority to do what it did:

The state next argues that the death penalty can never be held unconstitutional because ‘‘it is expressly permitted by the Connecticut constitution.’’ … [T]he state recommends for our consideration a concurring opinion authored by Justice Antonin Scalia, who opines that ‘‘[i]t is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates.’’ (Emphasis omitted.) Glossip v. Gross, supra, 135 S. Ct. 2747 (Scalia, J., concurring). The dissenting justices in Santiago raised similar objections. See, e.g., State v. Santiago, supra, 318 Conn. 246–47 (Rogers, C. J., dissenting); id., 353–54 (Zarella, J., dissenting).

…

The state’s argument appears to be that, with respect to the Connecticut constitution in particular, the due process clause of article first, § 8, cannot form the basis for holding capital punishment unconstitutional when that same clause authorizes the state to impose the death penalty, as long as it affords adequate due process of law. As the aforementioned authorities explain, however, this argument rests on two conceptual errors. First, a declaration of rights such as that contained in article first of the Connecticut constitution, or the federal Bill of Rights, is not a grant of governmental authority; rather, it delineates the rights and freedoms of the people as against the government. See State v. Conlon, 65 Conn. 478, 488–89, 33 A. 519 (1895); see also J. Blocher, supra, pp. 3, 8–9. For the state to suggest that one right (to be free from cruel and unusual punishment) bars the exercise of another right (presumably, to execute capital felons) is to fundamentally misunderstand the nature of the freedoms enshrined in article first. States have powers, and the people have rights vis-a`-vis the exercise of those powers; there is no governmental right to kill.

More damaging to the State, however, is Justice Robinson’s concurrence. Justice Robinson, the only member of the Court who did not opine on the constitutionality of the death penalty in Santiago, sided with abolition here on stare decisis grounds and much to the disappointment of some, on the grounds that Santiago properly reached and decided the issue of the constitutionality of the death penalty:

Specifically,  I have reviewed the opinions and briefs filed in Santiago, and determined that the majority in that case did not unreasonably read the record and the authorities when it concluded that: (1) the issues decided therein were raised by the parties, thus affording the state notice and an opportunity to brief them, had it elected to do so; and (2) the death penalty now is cruel and unusual punishment under our state’s constitution in the wake of the death penalty’s prospective repeal in No. 12-5 of the 2012 Public Acts.

In other words, Justice Robinson did not agree with the State’s position that the Santiago court exceeded its bounds, as suggested by the Santiago dissenters (including the Chief Justice) and some commentators. Also be sure to read footnote 1, which serves as a wonderful note in support of Justice Norcott and a firm rebuttal of some dubious allegations leveled against his continued participation in Santiago by some.

The end of death

Today, the Connecticut Supreme Court issued its opinion, re-affirming that the death penalty has no place in modern day Connecticut. We shall “no longer tinker with the machinery of death” and our standards of decency have evolved to the point where we no longer consider it humane to execute our fellow men.

That the Court had to do so while the State mounted an unprecedented assault on its legitimacy and its ability to perform its Constitutional function of ruling on the laws of our State will serve only to further strengthen the legacy of this institution and the confidence of our citizenry in the idea that our Court rules not with its heart, but with its intellect and serves not personal opinions, but rather the rule of law.

Foster v. Chatman and the necessity of peremptories

In 1986, the United States Supreme Court issued a groundbreaking decision, ruling that race could not be used as a factor in deciding who could be a juror in a criminal case.

In 1987, Timothy Foster was tried for capital murder, convicted by an all-white jury and sentenced to death.

In 2006, Foster’s lawyers make an Open Records request, asking for the prosecutors’ files. This is what they found:

If you can’t tell – or haven’t read any other stories about this – the prosecutors put a B next to each African-American and highlighted them in green.

Today, the United States Supreme Court, by a vote of 7-1, reversed Foster’s conviction, holding that the prosecutors’ tactics violated Batson. For a terrific breakdown of the lone dissenting vote and the increasingly passive-aggressive nature of SCOTUS, read this by Garrett Epps.

The decision is a condemnation of racial bias in jury selection – a practice that continues today – and perhaps a hint that some conservative members of the Court have dropped the pretense that racial bias in the criminal justice system is non-existent.

But while this decision points out all that is wrong with racial bias and tells us that it is unacceptable, it does nothing to provide any guidance how.

Many, including the inimitible Stephen Bright who represented Foster, have seized this opportunity to suggest one way to eliminate racial discrimination in jury selection:

“The decision in this case will not end discrimination in jury selection. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination.”

The idea behind Justice Marshall and Bright’s suggestion is that if there is no way for prosecutors to arbitrarily excuse people from jury service, then they can’t use that mechanism to arbitrarily excuse black people.

The idea has superficial appeal, but much like some other ideas for reforming the justice system, are counterproductive and downright dangerous when probed further.

As a practicing lawyer, peremptory challenges are a valuable if imperfect tool to weed out biased jurors who are smart enough to not divulge their biases. It allows both sides to decide that a particular individual, while giving the right answers, may not be sympathetic to their side and thus exercise a “challenge” to their suitability to be a juror.

Peremptories: imperfect but necessary

Obviously, nefarious and ill-meaning prosecutors have used this power to eliminate minorities and that is unacceptable. But prosecutors are also far more likely to be okay with picking the first 12 people that walk through the door. That’s because, as a society, we are far more deferential to the prosecution than the “criminals” who are accused of crimes. People are far more likely to be supportive of police and automatic believers in their veracity. People are far more likely to view defendants from urban settings more negatively.

People are also very unlikely to openly admit their biases in front of complete strangers. Jury selection – as it is permitted in most of the country – is extremely poorly equipped to uncover these biases. So lawyers are limited to several basic questions which are all poor clones of “can you be fair?” When a juror answers yes, despite every other fiber of their being giving off a signal that they absolutely will not be, there is nothing a lawyer can do but exercise that peremptory challenge and excuse them.

As any experienced trial lawyer will aver, even jurors who candidly admit their biases are routinely rehabilitated by the prosecutor or the judge and most are smart enough to take the obvious hints and bring their opinions back to the neutral middle. Without peremptories, a defendant would be stuck with an obviously biased juror who had the werewithal to follow the judge’s coaching that he would follow the judge’s coaching.

 

Fixing the problem of racial bias

Surprise, there’s no one paragraph solution to this problem. But the problem of racial bias is not limited to jury selection and any solution shouldn’t focus only on that. Prosecutors who engage in discriminatory selection don’t suddenly play fair during trial or during plea bargaining or during the signing of warrants. Bias during selection is indicative of bias throughout the process.

We need to tackle that – it’s a shift in mindset that is required in America. If we want to reduce bias, we need to hold prosecutors and judges accountable; appellate courts must make it less insurmountable for petitioners to prove bias and get relief; defense lawyers must not be afraid to challenge prosecutors and question their decisions; there must be greater diversity in the justice system, in prosecutor offices, public defender offices and on the bench.

We need our stewards of justice to realize that justice doesn’t mean winning – it means doing the right thing.

 

Utah v. Strieff and the importance of the exclusionary rule

The United States Supreme Court is currently pondering a case that may change the way modern America polices its communities. I realize that this is a pretty bold statement to make, especially in light of the ongoing conversation in America over the last year or two over policing standards especially in minority communities, but the impact of the decision in this case could be such that it will only further deepen the divide between police and the communities they serve.

The Exclusionary Rule

The case is Utah v. Strieff, in which the question the Justices are grappling with revolves around the application of the so-called ‘Exclusionary Rule.’ The Fourth Amendment protects us against unreasonable searches and seizures, but there’s no mechanism for enforcing that protection. The exclusionary rule is a

judicial remedy that gives life to that protection.

State v. Strieff, 357 P.3d 532, 538 (Utah 2015). It is the punishment imposed upon the Government for failing to abide by the restrictions of the Fourth Amendment. In simpler terms, evidence that is obtained in violation of the Fourth Amendment is not admissible at trial against an accused – thus the evidence is “excluded.” In deciding whether to exclude evidence illegally collected, courts apply the “fruit of the poisonous tree” doctrine: whether there is a causal link between the illegal police conduct and the evidence in question.

As the CT Supreme Court explained:

Thus, evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint…. Segura v. United States, 468 U.S. 796, 805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).” (Internal quotation marks omitted.) State v. Luurtsema, 262 Conn. 179, 189, 811 A.2d 223 (2002). In other words, “the question to be resolved concerning the admissibility of derivative evidence is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

State v. Brunetti.

Applying the standard exclusionary rule in this case produces a simple result: Strieff was illegally stopped in his car and as a result of that illegal stop, the police discovered he had a warrant and arrested him. As a result of that arrest, they conducted a search of his person and found contraband.

There is the classic “but-for” connection: but for the illegal stop, they wouldn’t have found his warrant and wouldn’t have arrested him and wouldn’t have found the contraband.

Exceptions to the Rule

Now, there are three circumstances in which such evidence is nonetheless admissible: (1) the independent source exception, (2) the inevitable discovery exception, and (3) the attenuation exception. It is this third exception that Utah relies on: the existence of a warrant is an intervening circumstance that renders the illegal stop irrelevant.

Courts across the country are divided on the issue and this is what the Supreme Court is asked to decide. But the issue runs deeper: as at least two commentators have noted, the future of the exclusionary rule may hang in the balance here.

Whether the court merely decides that the exclusionary rule does not apply when there is a legal warrant after an illegal Fourth Amendment event, or whether it goes further and erodes the protection of the exclusionary rule in all cases, the impact will be tremendous.

Impact on Policing

Just last week, Central Connecticut State University released its annual report on racial profiling in Connecticut. The news wasn’t much better than previous years:

But when researchers reviewed stops made during daylight hours, when they said officers could see the race and ethnicity of drivers, Hispanics were nearly 14 percent more likely to be pulled over and blacks were about 7 percent more likely to be stopped than they were at night.

The report also says minorities were more likely to get misdemeanor summons for speeding and other infractions, while whites were more likely to get written warnings.

And as last year’s report revealed:

The six-month data also showed that black and Hispanic motorists were at least twice as likely as a white motorist to be subjected to a consensual search, though the stops of white drivers were more likely to yield contraband.

And now the problems with any opinion in Strieff limiting the exclusionary rule or doing away with it become clear. If police are permitted to illegally stop motorists without fear of suppression of evidence found as a result of that illegal stop, then there is no incentive to make traffic stops that comply with existing law and preferred societal norms. Racial profiling, currently the subject of consternation and disapproval, will become de rigueur.

Police are already permitted to take into account “high-crime neighborhoods” – euphemism for minorities – in their calculus for determining reasonable suspicion. In Connecticut, officers are permitted to “briefly detain” an individual for whom they have no suspicion if that individual is accompanying someone they wish to legally detain. Once again, the lack of an exclusionary rule – or the existence of a warrant as an intervening circumstance – would permit officers to make routine, unsupported stops of minorities, merely based on their presence in what are perceived to be “high crime neighborhoods” despite a Constitutional prohibition on such stops and searches.

Finally, the CT Supreme Court recently approved of a stop and a search in a case where there was no suspicion of criminal activity at the time of the stop, but merely based on past observations. They also ruled:

Officer Lopa was approaching a person he knew to traffic in large quantities of marijuana and cash. Accordingly, it was reasonable to suspect that the defendant might be armed to safeguard the drugs and the cash.

Bolstered by the lack of an exclusionary rule, officers would have unfettered power to detain, search and investigate individuals in the absence of reasonable suspicion or probable cause. This, as the data bears out, would unfairly target minority communities, but would also render the protections of the Fourth Amendment nearly meaningless.