Wednesday, January 26, 2005

Legal Blogging

Two major cases in legal news:

In United States v. Pace, the US Supreme Court allows the practice of bringing a drug-sniffing dog to the scene of a routine traffic stop. The upshot: so long as they don't keep you longer than it takes to write a ticket, it's not a real search. If you've got to wait a few hours for the dog to show up, then it's the fruit of an illegal detention. Orin Kerr at the Volokh Conspiracy analyzes out one of the more interesting aspects of the case:

" . . . Justice Stevens had to distinguish the Court's 2001 thermal imaging case, Kyllo v. United States, in which Stevens had dissented. Kyllo held (more or less) that it is a search for the police to point an infrared thermal imaging device at the exterior wall of a private home. To reconcile the holding of Place with Kyllo, Stevens reasoned that the key was the nature of the information that surveillance method yielded. The thermal imaging device was used to obtain intimate details in the home, whereas the drug-sniffing dog only indicated the presence or non-presence of illegal narcotics."

He also points out that the approach to the analysis seems to be evolving:

"Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain. Under the rationale followed by the Court today, the government may be free to invade your property so long as they only obtain "non private" information." This is particularly troubling in the context of computer searches and seizures. Can the police send a computer virus to your computer that searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such images are on your computer — all without probable cause, or even any suspicion at all? The traditional answer would have been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasing focus on the nature of the information rather than how the information is obtained, it's no longer so clear.

It bears watching. I wonder whether method will eventually have something to do with it: The dog sniff takes place outside the vehicle, it doesn't send anything into penetrate the vehicle exterior. The dog merely sniffs scents eminating from the car. On the other hand, the infrared scanner sends beams into the house to scan it, and the computer virus scenario has the feds actually invading your computer, albiet electronically. If I were a judge, I'd split the hairs thusly: Actual invasion, either tangible or intangible + specific information obtained = unreasonable search absent another applicable exception.

I saw on How Appealing that the US Supreme Court also made news by what it won't decide - it rejected cert of Jeb Bush's appeal on the Terry Schiavo case. In other words, the ruling of the Florida Supreme Court that Bush's "Terry's Law" is invalid stands. Milbarge discusses the issue buzzing around the net: Is her husband trying to get rid of her in order to keep the insurance money (About $1 million. He's not entitled to it if they divorce so he can remarry - it's my understanding he has a girlfriend - but he will inherit it if she dies). His take:

"First, it's hard for me to judge the man; to him his wife is dead and he wants to move on with his life. Second, the trial judge found as a fact that Terri wouldn't have wanted to be kept alive in the state she's in. Like many of these cases, we can't be 100% sure of that, but that's not what the law requires. The trial judge heard the testimony and weighed the evidence, and without having looked too deeply at this, I'm willing to defer to that judgment. If you assume it's right, though, it's her parents who are going against her wishes and prolonging her sufferring, which the judge found she wouldn't have wanted. I'll say again that this is a difficult and heartrending case, but there still has to be a decision in it."

I agree there has to be a final decision based on her wishes. And various court-appointed guardians have concurred with the husband's position. However, it still looks very bad when there's a monetary gain and a personal gain. According to Abstract Appeal's very extensive, non-partisan site, the Court did entertain a presumption in favor of life:

The Schindlers did appeal, and the Second District determined that while a surrogate decision-maker should err on the side of life, the trial judge had sufficiently clear and convincing evidence to determine that Terri would not wish to continue the life-prolonging measures she needs to live.

The only thing I would have done differently is to appoint a guardian ad litem to advocate purely for Terri. Abstract Appeal indicates that Florida law does allow for it, but the trial judge felt it would be cumulative:

Under these circumstances, the two parties, as adversaries, present their evidence to the trial court. The trial court determines whether the evidence is sufficient to allow it to make the decision for the ward to discontinue life support. In this context, the trial court essentially serves as the ward's guardian. Although we do not rule out the occasional need for a guardian in this type of proceeding, a guardian ad litem would tend to duplicate the function of the judge, would add little of value to this process, and might cause the process to be influenced by hearsay or matters outside the record.

I think it would've acted to stem some of the public outrage on the case, though I recognize that this is said with the benefit of a significant amount of hindsight.

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