It Is Just A Bunch Of Garbage

posted by Judge_Burke @ 23:38 PM
November 15, 2019

Tanner Russo has posted Garbage Pulls Under the Physical Trespass Test (Virginia Law Review, Vol. 105, No. 6, 2019) on SSRN. Here is the abstract:

By reintroducing the physical trespass test to the Fourth Amendment search inquiry, United States v. Jones (2012) and Florida v. Jardines (2013) supplemented the Katz privacy test with a property-based trespassory inquiry. Jones asks courts to consider whether police have physically trespassed on a personal effect with an investigatory purpose, and Jardines asks courts to consider whether police have engaged in an unlicensed physical intrusion into a constitutionally protected area, such as the curtilage of a home. This Note addresses one area of doctrinal uncertainty in the wake of Jones and Jardines: garbage pulls, a practice the Supreme Court found in California v. Greenwood (1988) did not constitute a Fourth Amendment search where garbage awaits collection on the curb.

This Note assesses the status of garbage pulls under the physical trespass test. First, it argues that under Jones, household garbage could qualify as an effect because of its status as personal property and its close connection to domestic intimacy. Second, it presents arguments that under Jardines, police likely exceed the boundaries of the implied license by entering the curtilage of a home to seize or investigate garbage. Here, the Note highlights a series of federal and state appellate court decisions that have historically dismissed the importance of the curtilage in cases involving garbage pulls. Ultimately, this Note demonstrates how the physical trespass test as articulated in Jones and Jardines could significantly restrict the permissible scope of garbage pulls.


What Groups Should A Judge Feel Comfortable Attending?

posted by Judge_Burke @ 23:28 PM
November 14, 2019

The web site How Appealing had this post recently,  ““I Was a Federal Judge. My Former Colleagues Must Stop Attending Federalist Society Events.” Former U.S. Magistrate Judge James P. Donohue (W.D. Wash.) has this jurisprudence essay online at Slate.” There are many judges who are members of the Federalist Society some of which sit on the United States Supreme Court. Most of the members of the American Judges Association are either state court judges or Canadian judges. Each of us have different ethical rules or more importantly different interpretations of the same rules. Perhaps there is no universally good answer to the question but for sure it is worth thinking about.


The Right To Beg

posted by Judge_Burke @ 22:26 PM
November 13, 2019

Anatole France — ‘The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’ The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread. A ban on harassing panhandling in Arkansas is likely unconstitutional, and enforcement of the law may be banned statewide, a federal appeals court has ruled.

The 8th U.S. Circuit Court of Appeals at St. Louis upheld a statewide preliminary injunction in a First Amendment challenge filed by the American Civil Liberties Union of Arkansas. Courthouse News Service, the Arkansas Democrat-Gazette and the Associated Press have coverage of the Nov. 6 decision. A press release is here.

The law bans begging in a manner that is harassing, causes alarm or impedes traffic.

The ACLU had filed its suit on behalf of Michael Andrew Rodgers and Glynn Dilbeck, two men cited under a prior version of the law. Rodgers and Dilbeck said they had changed their begging behavior because they fear arrest under the new law.

The 8th Circuit said the law is a content-based restriction that singles out charitable solicitation, and it is not “narrowly tailored to achieve its public and motor-vehicle safety interest.”

The panel majority upheld the statewide reach of the preliminary injunction banning enforcement of the law. Such broad relief may be appropriate when a facial First Amendment challenge is likely to succeed, the 8th Circuit said. Judge Michael Melloy wrote the majority opinion.

In a partial dissent, Judge David Stras said enforcement of the law should be enjoined only as applied to the two plaintiffs. “I do not agree that the district court could prevent the entire Arkansas State Police force from enforcing the law against anyone, anywhere, at any time based on the harm faced by two individual plaintiffs,” he wrote.


Batson Challenge Is Introduced in Canada

posted by Judge_Burke @ 22:35 PM
November 8, 2019

For judges in the United States, dealing with Batson challenges to peremptory challenges is a staple of our law. The Globe & Mail has a story that shows it is now Canadian judges’ turn on how to ensure that juries are representative.

The Globe story:

A federal ban on unexplained objections to potential jurors, enacted after a defence lawyer appeared to use the legal tactic to keep Indigenous people off a jury in a high-profile case, has been struck down by an Ontario judge. The ruling highlights the potential for chaos in jury trials across the country, now that the selection process has become an unsettled area of law.

The Liberal government intended the ban to address perceived bias in jury selection after a Saskatchewan jury acquitted white farmer Gerald Stanley of second-degree murder last February in the shooting death of Colten Boushie, an Indigenous man, who had been on his property.

The judge’s ruling this week was in response to an Indigenous defendant who argued that the seven-week-old law discriminated against him – the opposite of its stated purpose. By the judge’s own description, the ruling throws jury trials into uncertainty in the province, because several other Ontario judges have upheld the ban.

But the ruling could have wider implications. Although it does not apply directly to other provinces, jury verdicts nationwide could be on shaky ground if the Supreme Court ultimately rules against the jury process as set out in the new law.

Objections to potential jurors, without a reason being given – known as peremptory challenges – have been around since the Magna Carta of 1215. They were seen as a way to give defendants confidence in the people who were judging them.

And Justice Andrew Goodman stressed that he still sees them that way. Ruling on a constitutional challenge by Dale King, who is accused of second-degree murder, he said Mr. King had been denied the right to participate in the selection of a representative jury.

“In order to provide for a measure of protection against the discrimination of jurors, Parliament has abolished [Mr. King’s] ability to prevent discrimination against himself,” the Ontario Superior Court judge wrote in an 81-page ruling released this week.

A spokesman for the Ontario Attorney-General’s department declined to say whether the province would appeal. Jonathan Shime, a lawyer representing Mr. King, also declined to comment on the case while it is before the courts.

Mr. King is accused in the shooting death of Yosif Al-Hasnawi two years ago in Hamilton. The case has a high profile because Mr. Al-Hasnawi was a good Samaritan breaking up a dispute when he was shot, and because two paramedics who arrived at the scene were charged with failing to provide the “necessaries of life” to him, after allegedly deeming him to have faked his distress.

The ban on peremptory challenges took effect on Sept. 19. Both the defence and prosecution had a certain number of challenges, depending on the seriousness of the offence; both sides had those challenges taken away from them in Bill C-75.

But even if, as an Ontario prosecutor argued in the King case, the system is fair and has the appearance of fairness to the public, that is not good enough for Mr. King, Justice Goodman wrote.

“He is entitled to the appearance of fairness, not only to the community at large, but more importantly to him, as the individual whose liberty is at stake.”

Justice Goodman ruled that the peremptory-challenges ban violated Section 7 of the Charter of Rights and Freedoms – the right to life, liberty and personal security – because it was broader than it needed to be. The government could simply have given enhanced power to judges to step in when either side discriminates in their use of peremptory challenges, or reduced the numbers of such challenges available, he said.

The immediate effect of the decision is to give Mr. King a right to peremptory challenges of prospective jurors. But it also creates uncertainty about what will happen for others exercising their right to a jury trial.

And that uncertainty is nationwide, Vancouver lawyer Marianna Jasper says, because if people are convicted under the new system, and the new system is ruled unconstitutional, they could be entitled to new trials. (The dispute over the ban’s constitutionality is not the only one. There have been conflicting decisions in Ontario and other provinces on whether the ban applies to charges laid before the law took effect.)

“The lawfulness of jury verdicts across the country will remain doubtful until (many years from now) the Supreme Court of Canada has addressed the constitutionality of the new regime, when it started to apply, and how it is to be administered,” Ms. Jasper said in an e-mail.

Ontario Superior Court Justice John McMahon had upheld the ban on Sept. 24, saying the law had several safeguards for accused rights, including the vesting of greater discretion in the trial judge to reject jurors.

Usually, judges are bound by rulings of other judges at the same level in a province – unless they deem them plainly wrong. And that is exactly how Justice Goodman termed Justice McMahon’s ruling.

For instance, under the new system, an accused might object that a potential juror sneered at them; a prosecutor might disagree, and the judge may not have seen it. The expanded judicial discretion is no help, Justice Goodman wrote, because it is unclear how judges would use it. Ignore disputed objections? he asked. Accept them? Ask questions, as yet unspecified, of the potential juror?

“Will the selection system descend into the morass of juror questioning, polling, submissions and the like that is found with our American cousins?”

University of Toronto law professor Kent Roach said the ban is fair because the Canadian legal system “utterly failed in attempting to prevent the discriminatory use of peremptory challenges,” and Parliament was justified in abolishing them.





Thoughts About Implicit Bias

posted by Judge_Burke @ 22:16 PM
November 7, 2019

It is safe to say that this might be one of the issues where there is unanimity among judges with  concern about implicit bias in the justice system. I will confess I have no solution, but I thought I’d share some thoughts developed for a talk I am giving.

Former Federal Judge Mark Bennet has an interesting implicit bias instruction:

Growing scientific research indicates each one of us has “implicit biases,” or hidden feelings, perceptions, fears, and stereotypes in our subconscious.  These hidden thoughts often impact how we remember what we see and hear and how we make important decisions.  While it is difficult to control one’s subconscious thoughts, being aware of these hidden biases can help counteract them.  As a result, I ask you to recognize that all of us may be affected by implicit biases in the decisions that we make.  Because you are making very important decisions in this case, I strongly encourage you to critically evaluate the evidence and resist any urge to reach a verdict influenced by stereotypes, generalizations, or implicit biases.

Determining credibility is among the most difficult things judges and jurors do.  Judges regularly make credibility determinations. But before you think with practice judges get better at this there are studies which found that judges are not necessarily better than others at figuring out who is telling the truth.  For example, in a controlled study of 110 judges with an average of 11.5 years on the bench, judges did not do better than chance in telling who was being truthful and who was not.  See Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991); Richard Schauffler & Kevin S. Burke, Who Are You Going to Believe?, 49 Court Rev. 124 (2013).  Judge Learned Hand once said, “The spirit of liberty is the spirit which is not too sure that it is right.”

If judges are the “experienced pros” at determining credibility what about jurors? Minnesota’s  pattern jury instructions say that jurors should consider the manner in which a witness testifies.  See Minnesota CIVJIG 12.15 Evaluation of Testimony–Credibility of Witnesses – Guidelines for evaluating testimony and Minnesota CRIMJIG 3.12 Evaluation of Testimony — Believability of Witnesses. Most states have something similar to Minnesota’s jury instruction.   Telling jurors to consider the manner of a witness may well be appropriate, but is it possible that we unintentionally invite jurors to decide credibility based upon implicit bias as a result of this part of the instruction?  Perhaps we can learn from New Zealand.

The New Zealand Supreme Court said:

[R]esearch which indicates that a person’s demeanour when giving evidence in court generally provides little or no assistance to a fact-finder charged with determining whether or not the witness is telling the truth. A witness who presents as confident, articulate and honest may be mistaken or dishonest; a witness who presents as diffident, hesitant or awkward may be telling the truth and their evidence may be accurate. Not only can appearances be deceptive, but fact-finders may over-estimate their ability to recognise those who are truthful from those who are not, by, for example, relying on unreliable behaviours such as fidgeting or looking away.

Taniwha v. The Queen [2016] NZSC, September 8, 2016.

New Zealand’s suggested Jury Instruction:

I must warn you, though, that simply observing witnesses and watching their demeanour as they give evidence is not a good way to assess the truth or falsity of their evidence. For example, a witness may not appear confident or may hesitate, fidget or look away when giving evidence. That doesn’t necessarily mean that their evidence is untruthful. The witness may be understandably nervous giving evidence in an unfamiliar environment in front of unknown people. Or there may be cultural reasons for the way a witness presents. On the other hand, a witness may appear confident, open and persuasive but nevertheless be untruthful. And remember that even an honest witness can be mistaken.

Things like gestures or tone of voice may sometimes help you to understand what the witness actually means. But you should be cautious about thinking that they will help you much in determining whether or not the witness is telling the truth.


Should Judges Be Concerned About Breath Testing Devices Accuracy?

posted by Judge_Burke @ 21:18 PM
November 6, 2019

There is a saying that I am fond of: “Every once in a while we should hang a question mark after the things we take for granted.” Forensic science is not only important in DWI cases but in all criminal cases. A major cause of wrongful convictions is forensic science was wrongfully applied. That is among the reasons the Justice Speakers Institute and the National Judicial College published the Judge’s Science Bench Book.  See  Perhaps the most frequently used forensic tools in criminal law are breath tests given to suspected drunk drivers. We mostly assume the machines are accurate, however The New York Times has a piece on breath testing devices that may challenge our thinking, including frightening allegations against some of those responsible for guaranteeing accurate testing and a survey of recent legal challenges.

The New York Times piece is  quite interesting. I hope others read it. It is easy to be dismissive about the claims that defense counsel make, or to develop such an ingrained sense of cynicism that we don’t readily put the question mark after things we, for so long, take for granted. So, whether you agree with the conclusions of the article may not be as important as being far more open minded when hearing challenges to the technology that we employ in DWI  cases.


From The Emory Wheel

Posted by  | Oct 30, 2019 | 

Canadian Supreme Court Justice Rosalie Abella stressed the importance of pursuing universal democratic values and human rights in an emotional speech at the eighth annual David J. Bederman Lecture, held in the Tull Auditorium at the Emory School of Law.

Speaking on the state of international law, Abella described what she saw as an atmosphere “polluted by bombastic anti-intellectualism, sanctimonious instability and a moral free-for-all,” which she believes sets a dangerous precedent for the future.

“Everyone is talking, and no one is listening,” she told the audience. “We are in danger of a new status quo where anger triumphs over indignity and indignity over decency.”

A renowned human rights advocate, Abella pointed to recent events concerning the treatment of Syrian Kurds, which she described as the “latest unconscionable global tragedy,” as confirmation of her “deepest fears” that the relationship between international human rights law and justice is becoming increasingly dysfunctional.

Abella clarified that one cause of this increasing dysfunctionality may be confusion over the term “rule of law,” which she argued was used merely as a justification for the legitimacy of a perspective.

“This generation has seen the rule of law impose apartheid, segregation and genocidal discrimination,” she said.

Abella instead called for the universalization of democratic values such as due process and the right to religious freedom, which she argued were more important.

“When we trumpet those core democratic values, we trumpet the instruments of justice, and justice is what laws are supposed to promote,” Abella said.

Abella related to the audience a narrative of American legal history, which she argued was synonymous with liberal democracy, and how attitudes towards individual rights were in part responsible for rights discrimination, a reality that was not confronted the aftermath of the Holocaust.

“We were so far removed from what we thought were the limits of rights discrimination,” Abella explained. “[After 1945], we had no moral alternative but to acknowledge that individuals could be denied rights not in spite of, but because of their differences.”

Abella reckoned that we have since relapsed into individualistic thought with regard to human rights, rationalising it with terms such as “political correctness”, “cultural relativism” and “domestic sovereignty.”

“These are concepts that excuse intolerance,” she said. “Silence in the face of intolerance means that intolerance wins.”

Abella identified recent incidences of religious terrorism in Pittsburgh, New Zealand and Sri Lanka as evidence that the “horrifying spectacle of group destruction” had returned.

“We have also had, among others, the genocide of Rwanda, the massacres in Bosnia and the Congo, the repression in Chechnya, child soldiers in Sudan, Zimbabwe, China, Myanmar, Pakistan and more,” Abella continued.

Abella also cited the fact that, since 1945, 40 million people have been killed as a result of military conflicts.

Nevertheless, Abella did recognize the “great success” of several UN agencies in their efforts since 1945. However, given the “enormous capacity” for constructing legal systems and institutions to advance international human rights law, Abella noted her disappointment in the overall lack of progress in the area, particularly when compared to progress in international economic law.

“What states have been unable to achieve in 65 years of international human rights law is up and running after 25 years of international trade regulation,” Abella said. “I find this dissonance startling and unsettling.”

Although Abella did admit she had “no solutions,” she elucidated that her ideas were not purely hypothetical but also based largely on her experiences.

“To me this is not just theory,” she explained. “I am the child of Holocaust survivors.”

Born in Stuttgart, Germany, in 1946, many of Abella’s relatives were killed in the Treblinka extermination camp in German-occupied Poland.

“My father was the only person in his family to survive the war,” Abella disclosed.

Abella came to Canada in 1950, shortly after the publication of the Nuremberg principles, a set of guidlines for determining what constitutes a war crime. She admitted that the publication of these principles provided little consolation for her family.

“I’m sure that they would have preferred by far that the sense of outrage that inspired the Allies to establish the military tribunal at Nuremberg had been around many years earlier, before the events that led to it ever took place,” she explained.

Abella made history in 2004 when she was appointed to the Supreme Court of Canada, becoming the first Jewish woman to ever do so. Abella was also the youngest and first pregnant judge in Canadian history when she was appointed to Ontario Family Court in 1976.

Speaking on her own life and career, Abella revealed that it had “never occurred to [her] to be anything but a lawyer.”

“My life started in a country where there had been no democracy, no rights and no justice,” she said. “It created an unquenchable thirst in me for all three.”

Abella also revealed that the best advice she could give law students was to not listen to anyone.

“Don’t take anybody’s advice!” she quipped. “If I had, … I would not be a lawyer, and I certainly would not be serving on the Supreme Court.”

Abella’s elegiac lecture was received tremendously by the Emory community, who gave her a standing ovation at the lecture’s conclusion.


What Role Should Race Play In Sentencing?

posted by Judge_Burke @ 14:00 PM
November 4, 2019

From professor Doug Berman’s Sentencing Law & Policy blog, “The title of this post is the headline of this new Vice piece discussing an interesting sentencing issues being engaged by Canadian courts. The subheadline of the piece summarizes the essentials: “In a case that could change how judges punish Black people, Ontario’s top court will soon decide how much systemic racism should be taken into account when sentencing.” Here are excerpts (links from original):

[W]hen [Kevin] Morris was convicted of possessing a loaded gun, his first offence, Ontario Superior Court Justice Shaun Nakatsuru decided to reduce his sentence from four years to 15 months, noting the systemic disadvantages Morris faced in his life as a Black man growing up in Toronto.  Morris’s sentence was further reduced to one year because police interrogated him after he had requested a lawyer.

To help make his decision, Nakatsuru used a cultural assessment of Morris, written by a clinical social worker and consisting of interviews and data that gave insight on him.  In his judgment, Nakatsuru wrote, “You began to notice how many were dying in your neighbourhood. Dying of violence. You did not have a lot of options. You decided you would live with it. That you would survive. Yet at the same time, you felt hopelessness.”

But in the spring the Crown will challenge that decision in the Court of Appeal, arguing that the judge was too lenient in his decision. If Morris wins, it could set a precedent for the use of cultural assessments in sentencing….

Nana Yanful, a lawyer for the Black Legal Action Centre, one of the 14 interveners on Morris’s appeal case, says that Morris’s case gives courts a chance to address the circumstances of Black offenders. She says the courts should stop asking if race can be a reason for leniency, and start to ask, if the offender wasn’t Black, how likely is it that they would be involved with the criminal justice system?

Judges in Canada already consider personal circumstances such as mental health, age, and past criminal record when sentencing an offender. Since 1999 judges have been legally obliged to consider the systemic disadvantages Indigenous offenders experienced before sentencing.

This is called the Gladue principle, and came into effect after a Cree woman pleaded guilty to manslaughter and was handed a three-year prison sentence. The Crown requested a conditional sentence, due to the offender’s history of substance abuse and lack of education. The judge did not grant the request, since she was off reserve at the time of the murder.

But after the case went to the Supreme Court, and the sentencing decision was upheld, the court clarified a section of the Criminal Code that would allow judges to recommend restorative justice measures for Indigenous offenders, such as reduced sentencing.

There is no similar principle for Black offenders, who make up 9 percent of the federal prison population, even though Black people only represent 3.5 percent of the population. The Office of Correctional Investigators reported a 69 percent increase of Black inmates between 2005 and 2015. While lawyers and judges can request cultural assessments, it’s up to the presiding judge to decide if it’s appropriate based on the circumstances of the case.

In Nova Scotia there has been a growing trend of judges considering cultural assessments in sentencing Black offenders. In one notable Nova Scotia Supreme Court case, Honourable Justice Jamie Campbell reviewed the cultural assessment of an African Indigenous man convicted of second-degree murder, before sentencing him to life in prison in 2017. Although the cultural assessment did not lead to a lighter sentence, it prompted “a judge to struggle with difficult questions for which there may not really be entirely clear answers,” the decision stated.

“That is why the cultural assessment is both a fascinating and a challenging document,” Campbell wrote in his judgment. “It provides information that makes it harder, not easier, to reach a conclusion. That is a good thing. The challenge comes from acknowledging the role that race plays in the prevalence of violent crime among young African Nova Scotian men while not falling into racist traps.”

Nova Scotia has been collecting data for cultural assessments since 2016, with 20 total requests. And requests have been increasing: In 2018 there were five requests for cultural assessments, while 11 have been requested so far this year.

A defence win in Morris’s case would set the same standard in Ontario, and also affect the disproportionate rate of incarcerated Black people in Canada. “What we’ve been doing so far isn’t working. The disproportionate impact is leading to a disproportionate outcome,” Yanful said. “So let’s take a step back and see what the sentencing court, and what the criminal justice system can do to be able to address this issue meaningfully.”



The Law of Stop

posted by Judge_Burke @ 21:55 PM
November 1, 2019

As we all know, state trial court judges are, among other things, specialists in the law of stop. Can the police stop vehicles for the most minor of alleged  traffic infractions:  just ask us. Can the police stop & frisk  some kid who is allegedly loitering: just ask us. There are some interesting issues raised by the only Fourth Amendment case currently on the United States  Supreme Court’s docket. Professor Orin Kerr has a commentary on the case that is very interesting.

Orin S. Kerr |The Volokh Conspiracy

Next Monday, the Supreme Court will hold argument in an interesting Fourth Amendment case, Kansas v. GloverGlover raises a simple question: When an officer spots a car driving on a public road, and a license check reveals that the registered owner of the car has a suspended license, does the fact that the registered owner of the car has a suspended license create reasonable suspicion that the driver of the car has a suspended license that then justifies a Terry stop of the car?   Put another way, for Fourth Amendment purposes, can the police presume that the registered owner of a car is driving it?

Glover touches on a conceptually rich Fourth Amendment question I have written about before, and I wanted to offer a few thoughts about different ways the Justices might approach it.

I.  What is the nature of reasonable suspicion?

The most interesting part of Glover, I think, is that it raises a fundamental question about the nature of the reasonable suspicion test—and of likelihood thresholds in Fourth Amendment law, such as probable cause, more broadly.

Here’s the context.  The norm in Fourth Amendment law is for every case on likelihood thresholds to be fact-specific.  To learn what reasonable suspicion or probable cause mean, you start by reading what the precedents say the standards are.  But the doctrinal statements of the standard are vague in isolation.  To really learn the law, I think, you need to read a bunch of Supreme Court cases.  After you read a bunch of cases, you get a what Karl Llewellyn would call a “situation-sense” for what kind of degree of plausibility the standards require.

This common-sense, totality-of-the-circumstances inquiry doesn’t produce a lot of rules on what facts amount to enough suspicion.  But both reasonable suspicion and probable cause become pretty predictable when you study Fourth Amendment law because they’re based on a kind of feel that you learn to develop when you read the cases.  Even thought the doctrinal tests can be vague in their words, every police officer and every judge with a criminal docket eventually develops a situation-sense of where the lines are.  There are disagreements on occasion, but they’re relatively rare.

II.  The Unusual Feature of Glover

Glover is unusual because it involves a recurring fact pattern that is based on likelihoods likely outside our typical experience.  First, the police see a car and run a license check.  Second, the license check reveals that the registered owner has a suspended license.   The question is, does the license suspension create reasonable suspicion to stop the car?  It’s harder to answer that based on our situation-sense than it usually is in Fourth Amendment cases, I think, as it would seem to depend on dynamics that most people don’t often encounter.

Consider the questions you’d want to think about.  First assume that the case before you is is entirely typical and generic.   To answer the typical case, you’d probably want to know two things.  First, how often do non-owners drive an owner’s car?  And second, how frequently do people with suspended licenses continue to drive?

That’s a start.  But then you would want to know if the particular case before you is typical.  While we might have answer for the odds in a typical case,  any particular case might be quite different.  Variation may be common. And that can change the odds.

Consider two examples.  First, how often non-owners drive a car may vary based on the city or even the neighborhood where the car is found.  Family size is one possible concern.   In a town like Fresno where 37% of households include kids, there’s a decent chance that teenage drivers might be driving the family car.  In a city like San Francisco where only 16% of households have kids, that’s less likely. Along the same lines, the kind of car might make a difference.  I would guess that a new Porsche 911 is very likely to be driven by its registered owner.  On the other hand, a family minivan likely would have more possible drivers.

The same dynamic applies to the rates at which people still drive after their licenses have been suspended.  That plausibly varies based on the reasons why a particular jurisdiction suspends licenses.  For example, Illinois may suspend your license if you don’t pay your parking tickets.  In California, on the other hand, they won’t.  I would imagine that people are particularly unlikely to stop driving when their licenses are suspended for unpaid parking tickets, either because they don’t have the money to pay but need to drive or else they don’t think unpaid tickets are a big deal.  The key point, it seems to me, is that state or local policies can change the likelihood that spotting a car on the road when the owner’s license was suspended means that a crime is afoot.

III.  Three Conceptual Ways Forward

So how do you try to figure out if there is reasonable suspicion in Glover?  In light of the above discussion, I think there are three basic conceptual approaches:

A. Continue to focus on the overall gestalt sense of whether there is reasonable suspicion.   Under this approach, you would treat Glover like any other reasonable suspicion case.  You’d try to get a rough sense whether in general an owner’s suspended license will create reasonable suspicion when the car is spotted on the road.  You would recognize some special cases will be different, as you might be in a place where those rough senses aren’t justified or dealing with a particular car or time when you might expect a different result.  But you’d reach the answer guided by the rough sense, the feel, of the likelihood.

B.  Focus on the statistical likelihood of a typical case.   Under this approach, you would want to know the typical empirics of how many cars there are per driver and how license suspensions affect driving patterns. You could then estimate a rough likelihood that a typical stop based on a suspended license is going to involve the suspended owner behind the wheel.  You’d then want to know the certainty threshold of reasonable suspicion, and you would ask if the empirics support a finding of reasonable suspicion in the general case.

C. Focus on the statistical likelihood of that actual case. Under this approach, you would try to develop a statistical model of that particular stop.  You would recognize that the likelihood of reasonable suspicion varies based on local factors, ranging from the jurisdiction to the neighborhood to the car to the time of day.  As a result, instead of answering the likelihood of finding the driver behind the wheel in some generic case, you would try to figure out the likelihood of it based on all the kinds of local factors that would be known when the officer makes the stop. You’d then want to know the certainty threshold of reasonable suspicion, and you would ask if the empirics support a finding of reasonable suspicion in the general case.

IV. We’ve Been Here Before: Florida v. Harris

At this point you’re probably wondering: Hasn’t this problem come up before?  And indeed it has.  I see a lot of conceptual similarities between Glover and a 2013 probable cause case, Florida v. Harris, 568 U.S. 237 (2013)In Harris, the state court below went for approach C.  The U.S. Supreme Court reversed, adopting approach A.

Harris asked whether a positive alert from a drug-sniffing dog was sufficient to create probable cause that drugs were present in the car.  As I see it, the dog’s alert on the car was sort of like the license check that reveals the car owner’s suspended license.  It was a single triggering event, with the likelihood probably outside our everyday experience, which could vary in significance.  The question in Harris was, how do you know when the alert was sufficient?

In the decision below, the Florida Supreme Court took option C above.  That is, the Florida court assessed the statistical likelihood that each particular dog’s alert created that particular probable cause.  That approach required the government to produce a lot of information about that particular dog to be able to assess the reliability of its alerts.  In each case, the Florida Supreme Court ruled, the State was required to

present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability in being able to detect the presence of illegal substances within the vehicle.

The U.S. Supreme Court granted cert and unanimously reversed.  Instead of the Florida court’s approach C, the U.S. Supreme Court took approach A.

According to Justice Kagan, writing for the majority, the Florida court’s statistical approach had “flouted” the U.S. Supreme Court’s guidance on probable cause that “rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach.”

The Court’s basic thinking was that well-trained drug-sniffing dogs are generally pretty reliable.  Based on that, evidence of solid training was usually going to be enough:

If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

But it wouldn’t be enough in every case, as a defendant “must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.”

The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant, as the Solicitor General acknowledged at oral argument. See Tr. of Oral Arg. 23-24 (“[T]he defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate”). And even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause — if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.

V.   Which Approach for Glover?

Enough wind-up.  What should the Court do with Glover?  My own view, consistent with the unanimous opinion in Harris, is that Approach A is the right path forward.  That is, the Court should get a feel for the general likelihood that the owner is behind the wheel when the police learn that an owner’s license is suspended but the car is on the road.  No calculations or statistics are needed.  As in Harris, it’s more a matter of ball-park feel.

And as in Harris, that situation-sense shouldn’t be the end of things.  Whichever way the Justices see the default, the other side should be able to show that a particular case is special.  If the Justices think that  an owner-suspension alert normally creates reasonable suspicion, the defense should be able to show specific circumstances when it doesn’t.  If the Justices think that an owner-suspension alert normally fails to create reasonable suspicion, the government should be allowed to show when it does.

My own sense, I’ll add, is that the owner-suspension alert ordinarily creates reasonable suspicion these days.  That’s largely the case because I think reasonable suspicion is a pretty low threshold.  It’s more than a hunch, but it’s a lot less than probable cause.  When the owner of a car has a suspended license but the car is on the road, it’s certainly possible that someone else is driving.  But my situation-sense is that, these days, it’s ordinarily going to be reasonable suspicion.  The owner of the car isn’t supposed to be driving, but there’s the car on the road.  It’s the kind of thing that a prudent officer would reasonably want to check out to make sure the owner isn’t behind the wheel.

VI.  The Problem With Fourth Amendment Statistics, and A Response to 17 States and to Professor Crespo

Why not adopt one of the statistical approaches, such as B or C above?  The main reason is one I wrote about in this book chapter in 2012, Why Courts Should Not Quantify Probable Cause.

In that chapter, I argued that it’s important not to try to quantify probable cause in order to measure it accurately.   The basic problem is that you don’t know what you don’t know.  When we quantify, we feel like we’re being all scientific.  But we’re actually blinding ourselves to the intuitions needed to assess probable cause accurately. Using numbers, I argued, would provide a false sense of certainty that blinds us to the intuitions needed to assess probable cause accurately.

I think similar concerns make approaches B or C problematic in Glover.  If you come up with a typical likelihood, approach B above, you don’t know if a particular case is a typical example.  You miss or don’t appreciate all the reasons to think a particular case is different.  And if you come up with a case-specific likelihood, approach C above, you end up misunderstanding when you have only a partial and inaccurate view of the relevant criteria and factors that misrepresents the odds. It feels scientific, as it has numbers and data.  But this is a context in which I think the intuitive approach is more accurate.

This puts me in disagreement with some very interesting amicus briefs, I should add. First, an amicus brief of 17 states adopts approach B. It offers and analyzes empirical evidence of the general odds that a driver-suspension alert will mean that a suspended driver is behind the wheel.  It’s an interesting brief, and the general odds can help inform intuitions about general cases.  But I don’t think it can go beyond that.

I also end up in disagreement with Professor Andrew Crespo, who filed a solo amicus brief in Glover in support of the defendant.  I think it’s fair to say that Professor Crespo favors approach C.  In his brief, he argues that the government must provide localized statistical data to establish that the owner-suspension created reasonable suspicion.  In particular, he argues that the state should have to provide evidence of “how many times vehicles reportedly registered to unlicensed drivers are actually driven by those individuals when such vehicles are stopped in the relevant geographic area.”

I disagree with Professor Crespo for the reasons flagged above. Among the difficulties, what is the level of generality for the “relevant geographic area”?  It seems to me that the odds may vary along different geographic criteria, ranging from the state or city (which may determine suspension policies) to the neighborhood (which may be more or less family-friendly) to the specific road (which may be driven by people from different places).  The odds also can vary based on non-geographic factors, such as the car (Porsche v. mini-van), the time of day (commuting time vs. night-time), the decade (are we moving to self-driving cars?), or the officer who decided to make the stop.

Even assuming the government can readily collect some kind of data, which is its own problem, it’s hard for us to know which criteria matter. And I think that makes it hard to use data about those criteria to say whether a particular stop is one that was justified by reasonable suspicion.

As always, stay tuned.  Glover will be argued next Monday, November 4th, 2019.


The Problem With The Mirada Warning & Children

posted by Judge_Burke @ 18:10 PM
October 31, 2019

Raneta Lawson Mack (Creighton University School of Law) has posted These Words May Not Mean What You Think They Mean: Toward a Modern Understanding of Children and Miranda Waivers (Boston University Public Interest Law Journal, Vol. 27, No. 258, 2018) on SSRN. Here is the abstract:

This article discusses the history of Miranda waiver standards and cases interpreting those standards as applied to children (including a discussion of the recent Slender Man case and the “Making a Murder” conviction involving Brendan Dassey). The article explores efforts on the state level to establish more protective standards for minors facing police interrogations and also takes a comparative look at international efforts to enhance children’s rights during custodial interrogations. Finally, the article offers proposed best practices that acknowledge the vulnerable position of minors in custodial interrogations while also allowing law enforcement to pursue reliable evidence of guilt.