The Obama administration continues to make plans for indefinite detention for many of the detainees at Guantanamo.

Indefinite detention violates many of the basic beliefs of our founders expressed in the Constitution. Article I, Section 9 of the Constitution states, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Fifth Amendment guarantees “due process of law.” It starts out saying, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;” The Sixth Amendment guarantees “the accused shall enjoy the right to a speedy and public trial, by an impartial jury. It also requires that the accused have the right of confrontation and the use the state for compulsory process to obtain favorable witnesses. The Eighth Amendment forbids excessive bail.

Furthermore the United States has signed international treaties guaranteeing alleged terrorist the right to a speedy trial. The International Covenant on Civil and Political Rights guarantees to all the right to a speedy and public trial.

Several days ago we discussed Unus v. Kane a case in which a Muslim family sued for an alleged violation of its Fourth Amendment rights to be free of unreasonable searches and seizures. Today we take a look at another case in which the plaintiff claimed an illegal search of her residence. Luckily for the plaintiff in this case, Maira Guzman the Seventh Circuit Court of Appeals reversed the trial court grant of summary judgment to the defendant, the City of Chicago. Guzman sued the City of Chicago pursuant to 42 USC Section 1983 for a violation of her civil rights.

Sergeant Marvin Bonnstetter of the Chicago Police Department was investigating gangs in Chicago. While he was at the jail he was approached by a man who claimed to have information. Together with an FBI officer he met with this man (known as John Doe). The officers asked the man a number of questions. He seemed knowledgeable about Chicago gangs and he was able to identify pictures of gang members.

John Doe told the officers that he had seen a convicted felon, Ruben Estrada coming out of his residence, located at 1536 West Walton in Chicago, with a gun. Doe told the officers that the West Walton address was a single family residence. The officers and Doe drove by the building and it appeared to be a single family residence. There was a real estate sign in the window and the officers thought it was a home run business.

Bonnstetter used the information to write an affidavit and submit it to the court to get a search warrant for the residence. A magistrate signed the search warrant.

Fourteen police officers and FBI agents, including Bonnstetter went to the residence to serve the search warrant. Shortly after arriving they discovered that it was not a single family residence. The real estate office was separate from the rest of the building and their were two residential apartments in the building. Furthermore no one by the name of Ruben Estrada lived in the building. They searched the upstairs apartment where Maira Guzmen, a pregnant woman, her husband, and their nine year old son lived.

The Seventh Circuit found that while Bonnstetter acted appropriately in obtaining the search warrant the police did not properly execute the warrant. The court citing Maryland v. Garrison stated that since the officers realized that it was not a single family residence prior to the search, they were required to withdraw.

New York joined Oregon and Washington in finding that their state constitutional bans on illegal search and seizure prevents the warrantless use of GPS, by law enforcement to track a vehicle.

State Police investigators placed a GPS device under the bumper of Scott Weaver’s van and left it there for 65 days, creeping under the van once to change the battery. Evidence taken from the GPS device was used to convict Weaver of the burglary of a K-Mart.

The New York Court of Appeals found that having a GPS device secretly placed under your vehicle for 65 days was so invasive as to violate the state constitution’s requirement that a search warrant is necessary for the search of the vehicle’s route. The court recognized that while the United States Supreme Court has never considered the validity of a GPS search it had found legal the use of a beeper in United States v. Knotts placed in a barrel of chloroform on the back of a truck as a means to aid agents keep track of the vehicle.

But the court found that the beeper in Knotts was a lot less sophisticated than GPS. The Supreme Court in Knotts found that the beeper was permissible since it was only an aid to human vision. Current devices are a lot more accurate than the beeper and human participation in tracking vehicles is no longer needed. The invasiveness of current devices is way beyond what the Supreme Court could have dreamed of twenty-six years ago in Knotts. As the court stated:

Disclosed in the data retrieved from the
transmitting unit, nearly instantaneously with the press of a
button on the highly portable receiving unit, will be trips the
indisputably private nature of which takes little imagination to
conjure: trips to the psychiatrist, the plastic surgeon, the
abortion clinic, the AIDS treatment center, the strip club, the
criminal defense attorney, the by-the-hour motel, the union
meeting, the mosque, synagogue or church, the gay bar and on and
on.

The court noted that there may be cases where exigent circumstances do not permit the luxury of getting a search warrant but in this case where the GPS device was on the vehicle for 65 days that is hardly the case.

The court also recognized that the expectation of privacy in a vehicle which is open to the public is a lot less than in a residence but it pointed out many circumstances, most recently in Gant, where the Supreme Court found an expectation of privacy in a vehicle.

Unlike the Oregon and Washington constitutions the New York search and seizure clause tracks the Fourth Amendment. Therefore there is some hope that someday when the United States Supreme Court decides a GPS case that it will follow the New York example.

Probably as long as there has been a Fourth Amendment there has been a debate over whether to exclude evidence illegally seized in violation of the Fourth Amendment. The Supreme Court ruled in 1914 in Weeks v. United States that illegally seized evidence should be excluded at trial. But to this day conservatives claim that the evidence should be admissible. After all it may have been seized illegally but its still credible evidence. The problem with this theory is, if you don’t exclude the evidence what is to stop government agents from consistently violating the Fourth Amendment to get evidence against individuals and organizations.

The right responds to this by suggesting that people can sue those who violate their rights in what is called a Bivens suit. But there are two problems with Bivens suits. First, if you are convicted of a crime and sent to prison as a result of illegally seized evidence no amount of money can pay you back for the time lost. Second, even if you are not charged and convicted a Bivens suit as shown in the recent Fourth Circuit Court of Appeals case, Unus v. Kane et al is very difficult to win.

Unus v Kane et al involves a Muslim family living in the Eastern District of Virginia shortly after 9/11. Iqbal Unus, a U.S, citizen worked for the Islamic Institute of Islamic Thought and he had ties to several other Islamic organizations. David Kane, a special agent for ICE, working with Rita Katz, an expert on Islamic affairs wrote a 99 page affidavit as part of Operation Green Quest, which was a Federal effort to investigate domestic support of international terrorism, and presented it to a U. S. magistrate to search a number of places, one of which was the Unus residence to find evidence regarding support for terrorist organizations. The affidavit was based on the moving around of funds which may have gone to terrorist organizations. According to Kane’s affidavit a number of charities headquartered at 555 Grove Street in Herndon, Virginia moved large sums of money around but the government was unable to prove that any of it went to terrorist organizations. The most they could prove is that some of it ended up on the Isle of Man but they could not trace it beyond there. On this evidence the magistrate found probable cause to search twenty places including the Unus residence.

When the agents arrived at his home with the search warrant, Dr. Unus was not home but his wife and daughter were present. When the agents banged on the door his wife was afraid, seeing ununiformed individuals outside her house, at least one of whom had a gun. Thinking it was a home invasion robbery she went to get their daughter who called 911. The agents, seeing the mother run to the back of the house, broke the door down. They entered the house with guns drawn and they handcuffed both the mother and the daughter. They remained handcuffed for nearly four hours during most of the search of the residence. The Unuses are Muslim and they were allowed to say their afternoon prayers. But they were not allowed to do it outside the presence of men nor were they allowed to wear a head cover for the prayers and the agents insisted on taking their picture without the head cover.

Using the Federal Tort Claims Act (FTCA) they sued the agents and the government for assault and false imprisonment as well as on Bivens counts for violation of their First and Fourth amendment rights. Despite the plaintiffs filing several amended complaints the trial court dismissed or granted the agents and the government summary judgment dismissing the complaint.

Despite the fact that on appeal of a grant of summary judgment the appellate court reviews the evidence as it is most favorable to the plaintiffs, the Fourth Circuit Court of Appeals upheld the trial court actions. Under the FTCA the Federal Courts look to the state law to define the various torts. The Court found that the agent’s knocking down the door, the exhibition of the weapon, and the use of the handcuffs in response to the door not being opened by the Unuses. Aysha Unus running to the back of the house and Hanaa Unus being on the telephone was reasonable. Therefore the charges of assault and false imprisonment were without support. After all it was a “terrorism-related warrant.”

The court upheld the dismissal of the Bivens claims since under the FTCA one cannot claim a violation of the FTCA and another law simultaneously. In any case the Court found Agent Kane’s behavior appropriate in the drafting of the affidavit.

Perhaps one could justify the court’s failure to find any support for the claims on the grounds of the mass hysteria that followed 9/11 but here it is eight years later and an appellate court with plenty of time to contemplate the briefs and the argument still finds that the trial court properly granted summary judgment.

A recent Missouri case reported in Fourth Amendment.com State v. Allen illustrates the need not to let police into your house or your car or anywhere else that you have an expectation of privacy. The police conducted a “knock and talk” at the residence of Amy Jo Dean Rig. A “knock and talk” occurs when the police believe that criminal activity, in this case drug use and sales, is occurring in a residence. They do not have probable cause to search the residence or to get a search warrant. If they had probable cause they would go ahead and get the search warrant. But since they don’t have probable cause they knock on the door and attempt to either get information from the resident that gives them probable cause or even better yet get the resident to let them into the house to search for contraband.

In this case Rig initially said “no.” But police are taught to be persuasive talk. Many department have officers who specialize in talking their way into a residence. In this case they used a female officer. Presumably they thought that the female was more likely to get into the apartment.

The officers asked Rig if there were drugs in the apartment. She said “no.” In a not unusual move the officers told Rig to let them in to show that she was telling the truth. She continues to say, “no.” The officers start talking about Rig’s children and how bad it is to have drugs around them. Eventually they get her to admit that she has a marijuana pipe. The officers ask if they can come in and get it. They will only write her a ticket if they get the pipe. She says she’ll get it and give it to them. They say “for officer safety purposes” they want to come in and get it. At this point Rig gives up and says, “yes.” They come in. One of the officers stays in the living room with Rig’s guests. the other follows her to the bedroom. She goes to the bedside table and quickly takes the pipe out of a drawer and gives it to them.

Now that they have evidence they wonder what else is in the drawer. Thi\ey get permission to search the drawer. They find a white powder used for cutting drugs. Well now that they have probable cause, they give Rig the choice of either giving further consent or they will get a search warrant. The cat is out of the bag and its too late. They get the consent and search the house. They find a commercial quantity of methamphetamine. Her boyfriend is arrested and convicted.

If Rig had said “no” at the door and stuck to her guns or if she said I want to talk to a lawyer before I let you in my house, the search would not have happened and no one would have been arrested.

The police department of Buena Park, California obtained a search warrant for the residence, automobile and person of Anthony Andrew Galland based upon information from a confidential informant. In order to protect the identity of the informant, the police department requested that part of the affidavit supporting the warrant be sealed (See People v. Hobbs (1994) 7 Cal.4th 948,30 Cal’rptr.2nd 651; 873 P.2nd 1246) and that the sealed portion of the affidavit be released to the custody of the police department. The magistrate agreed. The defendant made a motion to suppress the seized evidence alleging that the affidavit did not comply with the Fourth Amendment. The sealed portion of the affidavit was brought to the courtroom. The judge reviewed the entire affidavit and denied the motion and the sealed portion of the affidavit was returned to the police department.

The defendant appealed the denial of the motion and the fun began. Prior to the appeal, the police department purged its files and the sealed portion of the affidavit was lost. The Court of Appeal held that there was no authority to give the sealed portion of the affidavit to the police department in the first place. Further it ruled that without the entire affidavit it was unable to rule on the appeal and it reversed the lower court denial of the defendant’s motion to suppress evidence, even thought the district Attorney found a five page unsigned version of the affidavit.

The California Supreme Court in People v. Galland, agreed with the Court of Appeal that there was no law authorizing the trial court to place the sealed portion of the affidavit in the custody of the police department. But it invented a law authorizing the placement of the sealed portion in the custody of the police when five conditions occur. First, the disclosure of the sealed portion would hinder law enforcement investigations or the safety of the informant. Second,That the clerk’s office had insufficient security procedure to maintain the sealed portion of the affidavit. Third, that the law enforcement agency had sufficient safety procedures to protect the document. Fourth, the law enforcement agency can save the document securely for ten years in a noncapital case and permanently in capital case. The fifth and last requirement is that the magistrate must have made a sufficient record of the incident to provide information in case the affidavit is lost or destroyed.

Using these newly invented criteria the Supreme Court found that the magistrate had not complied with them prior to placing the sealed portion of the affidavit in the custody of the Buena Park Police Department. However, since there existed the District Attorney’s unsigned version of the affidavit and since the Orange County Superior Court, after the negative ruling of the Court of Appeal, conveniently, found a signed copy of the affidavit all is well and the Supreme Court reinstated the denial of the Galland’s suppression motion.