Monday, October 22, 2007

4th Amendment Part 2

Last week we discussed the exclusionary rule. Lets compare this to the football rule of pass interference. If a defender interferes with the receivers ability to catch the ball, there is a 15 yard penalty. This should be enough of a deterrent to teach players to keep their hands to themselves. But lets say that you are a defender and you know the receiver has you beat and once he catches the ball, he has an easy touchdown. Is the 15 yard penalty better than a touchdown? You bet.

In our post 9-11 America, would you as a government agent be willing to break a few rules if you thought you could prevent a major terrorist attack? This is a difficult question. Could you watch the funerals of thousands but be content that you played by the rules? The opposite argument is that once we trash the constitution, you have played into the hands of our enemies.

So basically we have a no win situation. Or have we created a false dichotomy? Are there other answers? I think it is safe to say the even if we break the rules, some terrorists will slip through. Even if we follow our rules, we sill will catch some if not may of the terrorists.

In the months following 9-11, the Patriot Act was put into play. My first argument against this is the name. Due to the nomenclature, anyone who would speak against it would be anti-patriot. The full name is The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. Sounds harmless enough.

A short list of the problems which have lead to successful lawsuits against the government include authorization of indefinite detentions of immigrants; "sneak and peek" searches through which law enforcement officers search a home or business without the owner’s or the occupant’s permission or knowledge; the expanded use of “National Security Letters” which allow the FBI to search telephone, email and financial records without a court order; and the expanded access of law enforcement agencies to government records, including library and financial records.

U.S. District Judge Ann Aiken ruled that using the act to authorize secret searches and wiretapping to gather criminal evidence - instead of intelligence gathering - violates the Constitution.

"For over 200 years, this nation has adhered to the rule of law - with unparalleled success," the judge Ann Aiken wrote Wednesday. “A shift to a nation based on extra-constitutional authority is prohibited, as well as ill-advised.” By asking her to dismiss Mayfield's lawsuit, the judge said, the U.S. Attorney General's office was "asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so."

I think it is a fair to predict that we will see domestic and foreign terrorism in the US again. It could be tomorrow, next month or in five years but it is coming. For those of us in law enforcement, we made a commitment to our defend our county but in the same breath we swore to defend the constitution. We can’t do one with out the other.

Wednesday, October 17, 2007

4th Amendment part 1

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I believe the Fourth Amendment to the United States Constitution has the most direct impact on the lives of the average citizen today than many of the other amendments. The loss of these rights would changes the face or culture and would make the US unrecognizable.

To understand how the 4th Amendment is applied today, we must address two key terms, probable cause and unreasonable.

The Supreme Court has stated that probable cause to search is a flexible, common-sense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief.” The most widely held common definition would be "a reasonable belief that a crime as been committed" and that the person is linked to the crime with the same degree of certainty.

There are only two ways a person is arrested. The arresting officer has a warrant signed by a judge which already has been examined for probable cause or the arresting officer has probable cause and will present an affidavit to a judge to determine if probable cause exists. This is not a terribly high standard. In 11 years, I have written about thousand cause statement. Probable cause is a long way from proof beyond a reasonable doubt. Probable cause is a gate keeper, a low hurdle to begin the criminal prosecution.

What is unreasonable? This has evolved and will continue to evolve as technology has improved. Where things get complicated are issues such as telescopes, infrared heat sensors, collection of DNA and the developing field of human sent.

Just because we have these rights, where of the teeth to enforce them? The primary method is the exclusionary rule followed by the “fruit of the poisoned tree doctrine.” Before a trial the defense has the opportunity to request a motions hearing where they can raise issues regarding potential constitutional violations made by the police or prosecution. The judge will rule of the motion and determine if the evidence will be allowed.

If the judge applies the exclusionary rule, that single piece of evidence is not permitted to be used at the trial and jurors will never know it existed.

The doctrine of the fruit of the poisoned tree would apply if one piece of illegally collected evidence leads to other evidence. All the evidence is in jeopardy of being excluded from the trial.

I saw an example of this on TV recently. The police conducted an warrant less illegal search on a potential suspect’s home. The officer found photos in the home which showed where the body was buried. The evidence collected from the burial scene was excluded from the trial due to the initial search.

Next week we will conclude this discussion of the 4th Amendment with a look at several of the exceptions the courts have granted to the police and prosecution as well as a closer look at direct application of the issues.

Tuesday, October 9, 2007

1st Amendment: revisited

In light of recent events, I think we should take the time to re-visit the 1st Amendment, specifically issues of freedom of speech.

Colorado media was buzzing about David McSwane, the editor of the Colorado State University newspaper. McSwane wrote in his opinion editorial “Taser this: F--- Bush.” Not the most persuasive argument I have heard lately but I am also known for having a colorful vocabulary. I try to be careful who is around when I use profanity. Other cops-yes, Grandmother-no. Why be careful? I have the freedom to say what I want. The first amendment protects me from the government not from the consequences I would receive from my friends and family. The situation is similar with the newspaper.

The purpose of the newspaper is to place as many advertisements as possible, then sell as many copies as possible. If is likely that McSwane’s comment may have an effect on this equation? I think so. Therefore it is reasonable for the newspaper to police itself. The Rocky Mountain Collegian's code of ethics, bars "profane or vulgar words" in opinion writing. McSwane was admonished but allowed to keep his job. That is the self-control that is needed in a free country.

I’m sure President Bush is not happy about the comment but there was never a word from the government. In my eyes, this story has a happy ending, the CSU College Republicans have started their own newspaper, the Ram Republic. As I said a few weeks ago, the cure for bad speech is more speech.

The recent Columbus Day parade in Denver is deserving of commentary. 83 protesters were arrested for disrupting/attempting to block the parade. I was there for this event which would only be made possible by the 1st Amendment. Without that clause, the City of Denver would be more than happy to deny one or both sides the right to speak and avoid the headache. I never heard the dollar amount but I am sure the overtime cost is enormous.

Thanks to the 1st, the marchers were issued a permit to have a parade. The protesters were issued a permit for the steps of the capitol, which was a part of the parade route. The majority of the route was lined, not by average parade spectators cheering and waving flags, but protesters shouting and waving signs. Although unsightly and disorganized, this is the perfect example of freedom of speech in action. I loved every minute of it.

What about the 83 arrests? They crossed the lines and attempted to deny the rights of the marchers. They were warned, then arrested. Those that I spoke with or saw interviewed, stated that they entered the street knowing they would be arrested. The arrest amplified the message. This is symbolic speech at its best. I have far more respect for those who took the risk of civil disobedience and were arrested than the several hundred who had no better way to exercise their rights than to shout profanity.

I watched another protest outside the jail where the protesters were being processed. These protesters were demanding that those arrested by released. What they are trying to do is take away the sacrifice made by those who engaged in civil disobedience.

Consequences are a requirement if those who commit acts of peaceful civil disobedience are to be honored.

So my message to the marchers, thank you for exercising your rights. To those shouting obscenities from the sidewalks, you learned that you have the right to speak, not say something worthwhile. To those who were arrested, I would offer a quote from Henry David Thoreau “Disobedience is the true foundation of liberty.”

Thursday, October 4, 2007

3rd Amendment

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

People forget about the 3rd Amendment these days, but 200 years ago, this landed #3 on the founding fathers list of things that piss me off. The reason we forget about the 3rd Amendment rights, is because these rights have not been eroded or challenged since the civil war.

Although we don’t think about it much in the 21st century, this is a huge leap for the rights of the common people. Most of history, all property was the right the king or who ever had the biggest club. There was nothing to protect the commoner against “might makes right.” Everyday was lived in fear of loosing everything, legally to the powers that be.

Of course the 3rd amendment was routinely ignored during the civil war. The actions of the Union forces can be shown to have violated both clauses of the end of the amendment. First of all, Congress never declared war on the Confederate States and even if they had, no manner had been prescribed.

There is very little legal precedent to review. There was only one Federal case involving the 3rd Amendment, Engblom v Carey. This involved striking prison workers who had been living in government provided housing. The National Guard was called in to run the prison and was housed in the facilities of the striking workers. This case went to the prison because the striking workers were not the owners and the case never reached the Supreme Court.

Having been about 150 years since US troops were quartered in private homes, it is interesting to think that in the event of war and with a prescribed manner, I could be forced to host US troops without my consent. I hope they like my chili.

Monday, October 1, 2007

2nd Amendment

The First amendment draws the most controversy in issues of freedom of/from religion and free speech. This is closely followed by the second amendment and issues around gun control. It would be difficult to find an American who has not been touched by violence or accident where a firearm was involved. In my time working in the crime lab, I was responsible for attending the post-mortem examinations. I have seen what a bullet the size of a pencil eraser can do to the human body. In my years on the police, I have lost friends who were murdered with guns. It is impossible to take the emotion out of this discussion. The best we can do is remember that emotionally charged decisions rarely lead us to reason and justice.

Lets begin with the text.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

What is the “militia?”
"I ask, who are the militia? They consist now of the whole people…”--George Mason, Virginia's U.S. Constitution ratification convention, June 16, 1788

The militia is us. At this time this was written, The United States had just emerged from a war with England where the average man was the average soldier. Wars change. Over 200 years later we are engaged in another war, this time against crime and violence.

King Henery III required every subject between the ages of fifteen and fifty to own a weapon other than a knife. This was of such importance that Crown officials gave periodic inspections to guarantee a properly armed townspeople. This was because England did not have a police force until 1829.

"Laws that forbid the carrying of arms. . . disarm only those who are neither inclined nor determined to commit crimes. . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." -- Thomas Jefferson, Commonplace Book, 1774-1776,

For illustration purposes I will use the Denver Police Department, DPD, I am using the 2006 states available at

The current staffing of the DPD is 1539 sworn officers. The assignment numbers were not published in the annual report but most police departments run at about half of personnel in are assigned to the patrol division where they can immediately be deployed to crime in progress. This would bring us to about 770 officers and supervisors. Consider that due to 24 hours coverage, days off and training, 1/5th of that population is on duty at any one time. This leaves 153 officers to cover the entire 154.9 square mile City and County of Denver, population 566,974 at any one time.

In 2006 there were….
Homicide: 55
Sexual Assault: 373
Robbery: 1285
Aggravated Assault: 2244
Total reported crime in Denver: 46,020 criminal incidents

I believe that Denver Police Department is an excellent organization and they use their limited resources very well. I would encourage my readers to look at the 2006 Annual Report and see how much can be done with so little. Back to the point, Even one of the premier law enforcement agencies can barely staff 1 officer per square mile. Can we truly depend the police to come save us when we need it the most. The people have put this responsibility on our local law enforcement and the police said they were up to the challenge. The truth is that the police do a great job of investigating and prosecuting criminals but we can’t depend on the blue suits coming to save until the crime is over and the bad guys have left.

If we can’t depend on our local law enforcement, who can we depend on?
As citizens, we need to depend on each other. My neighbors can depend on me. I commit to watching their property when they are gone. I will answer my door when they knock. I will make a police report and I will testify in court for them. I am a citizen of the United States that is my responsibility to my neighbors. They have the same responsibility to me. If America has one great failing today, it is because we refuse to honor our responsibility to our neighbors. If it is our responsibility to protect each other, we must be equipped.

I carry a gun when ever I leave my home. I practice. My wife has attended the concealed carry course. She has a gun and she is not a bad shot. Don’t mess with her.

I commit to my readers that I will protect you and your family. Will you do the same for me?

For more information on both sides of the issue I recommend