Archive for April, 2009

Supremes tighten their Belton

April 21st, 2009

I had always thought that the Supreme Court’s ruling in New York v. Belton, 453 U.S. 454 (1981) was a little much. As of today, I guess they’ve finally agreed with me.

Those who have had the pleasure of an American criminal procedure course will remember Belton as the source of the “search-incident-to-arrest” corollary to the “automobile exception” to the Fourth Amendment’s general rule against unwarranted searches and seizures. Simply put, the Belton rule permits the passenger compartment of a suspect’s vehicle to be searched on-site at any time after a lawful arrest without a warrant.

This exception is usually justified on the grounds of officer safety, and that’s understandable: we want to be sure that police officers are able to quickly locate and lock down any weapons that might be at hand during the course of an arrest. But Belton’s unnecessarily broad wording has openly permitted searches that could never reasonably be explained that way. Realistically, unless you’ve collared yourself a Jedi,1 there’s really no conceivable way that a handcuffed suspect locked in a police cruiser could possibly get to anything in his car that could be used to hurt you, and that seems to be the point at which most of these searches are performed. The “search-incident-to-arrest” element of the automobile exception has always seemed like a problem disguised as a solution to me, and a whole pile of academics and other people far smarter than me have been trying to get the Court to re-examine it for decades.

In a closely-split decision today in Arizona v. Gant (No. 07-542)(PDF), Justice Stevens2 has all but overruled Belton.

The facts aren’t all that important, but I should note that the defendant had been arrested for nothing more than driving on a suspended license and was safely in custody by the time that his car was searched and a small quantity of cocaine found. During the course of the hearing on the motion to suppress brought prior to trial, the arresting officer assured the Court that the search had been conducted under these circumstances “[b]ecause the law says we can do it.”

Well, not anymore. Stevens has upheld the Arizona Supreme Court’s holding that this search was un-Constitutional, and that Belton was significantly overbroad. Here’s my favorite part:

The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely“within ‘the area into which an arrestee might reach,’” and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis [Latin, I believe, for "What part of that last ruling didn't you understand?"] does not require us to approve routine constitutional violations.


Best I can tell from my first read of Gant, Stevens has limited Belton to situations in which the suspect either has access to his vehicle at the time of search and/or the search would yield evidence directly relating to the crime for which the suspect was arrested.

Sounds about right to me, but where does this leave us? As Scalia grumbles in his mostly-reasonable concurrence, Stevens isn’t exactly overruling anything3 but only cinching Belton up a few notches. I kind of agree with Scalia4 that the best course of action would really be to ditch (rather than refine) Belton and its progeny altogether and go with an alternative rule: vehicle searches after arrest may only be conducted when seeking evidence toward the crime for which the arrestee had already been arrested. This logic in this is kind of inarguable on its face: If an officer already had probable cause to arrest a driver for certain crimes,  why shouldn’t there be probable cause to search the same person’s immediate area after arrest for evidence5 of that crime? But I’m not totally sold on this, as it still has significant potential for abuse and is almost certainly motivated by Scalia’s well-known career hatred for the exclusionary rule.

But, still: good enough for now. Gant is an encouraging and long-overdue development in Fourth Amendment caselaw, and I’m happy to see it.

  1. And if so: How? []
  2. Stevens sat out Belton, instead signing on to a concurrence that was obviously hesitant to endorse it. []
  3. The Alito/Roberts/et al dissent disagrees, arguing that there is “no doubt” that Gant overrules Belton, and dissents almost entirely on stare decisis grounds. []
  4. As combinations of words go, I’ve probably uttered this phrase about as often as I have “Please pass the mushy peas, because they are delicious.” []
  5. Drugs and/or guns, 95% of the time []

Criminal Appeals, U.S. Supreme Court

First Circuit declines to OK computers in Tenenbaum webcast appeal

April 17th, 2009

Despite Boston federal District Court Judge Nancy Gertner’s best efforts, as of yesterday the First Circuit has ensured that no one’s listening in1 for the Tenenbaum file-sharing battle.

In a sort of gratuituously comprehensive 25-page opinion released only eight days after oral argument on this question, the First (via the charmingly and “incurably lexiphanic” Selya, J.) came down unanimously yesterday against permitting Joel Tenenbaum’s District Court proceedings from being broadcast live over the Internet.

For as much as I’d expected this outcome, I was also amused to see that the First was not immune to the influence of the unstoppable craziness that has plagued this case.

It all starts, as so many appeals must, with


For the second time of which I’m aware, it appears that a party has failed to properly argue a major issue in this case. Last time it was the plaintiffs’ failure to cite a 1st Circuit rule which was directly on point; here, Selya directly suggests that the defendants forgot to raise the tiny little matter of the Court’s actual authority to issue a writ of mandamus in the first place.2

Writs of mandamus3 are, as Selya himself notes, “strong medicine,” to be prescribed only when absolutely necessary. Courts which step in to issue these orders are inevitably taking a kind of offensively parental role in the proceedings, which is why plaintiffs generally must show that they are facing “irreperable harm” if the court doesn’t act.

Here, there was a strong argument to be made that the plaintiffs would suffer no such harm were the Court to deny the request, but this was only raised in a couple of amicus briefs submitted by interested third parties.4 For as unusual as it is for an appellate court to address arguments raised in non-party briefs, the Court found this particular argument to be significant enough to notice for exactly the amount of time that it took to dodge it entirely.

See, it turns out that the appropriate relief here was not a writ of plain old “general mandamus,” but rather a super-special writ of “advisory mandamus.”

Don’t feel bad: I’d never heard of “advisory mandamus” either.5 Maybe we both missed Civil Procedure that day?

Whether we’ve heard of them or not, writs of “advisory mandamus” may be issued in any matter which presents any “systemically important issue as to which this court has not yet spoken.”6, and the “irreperable harm” standard is not required for this highly unusual form of relief.7 Having whipped out this procedural trump card, the First breezily finds that it “inexorably” has authority to consider issuing such an order, and moves on to


Pursuant to Massachusetts District Court Rule 83.3 [fair warning: link goes to sizable PDF], no cameras or recording devices of any kind may be allowed into the court “except as specifically provided in these rules or order of the court.” While I (and, apparently, Judge Gertner) would basically read this language to mean “except for specific circumstances enumerated within the text of this rule8, or at any time at the discretion of the presiding judge,” the First sees it otherwise. After several long pages of statutory construction and analysis, the Court conclusively determined that the phrase “or order of the court” is not a generalized “catchall” which would grant the District Court the kind of discretion that it exercised here, especially given that this rule was further strenghtened and augmented by a written policy adopted by the First Circuit in 1996 which prohibits the broadcasting of any court proceedings in federal courts under the jurisdiction of the First.

In light of all of this, the District Court’s decision to permit webcasting of the proceedings was held to have been “palpably erroneous,” and webcasting was prohibited accordingly. Which brings us to


For as inevitably disappointed as Tenenbaum’s legal team were by this ruling, they can still take some hope from Justice Lipez’s concurrence. He reluctantly agreed with the majority that the proposed webcast was not legally permissible, but added the following eminently reasonable caveat:

However, this inescapable legal conclusion does not discredit the policy concerns that animated, at least in part, the district court’s decision. Indeed, in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome.

Lipez further points out a ridiculous irony that I’d meant to mention earlier: the oral arguments from this appeal were broadcast on the First’s website in MP3 format within 24 hours of the hearing for anyone to listen to. (”Disagreeable outcome,” indeed!)

Oh, and there’s


that I’ve got to mention before I can let all of this go, although I’m certainly not the first to notice it.

Throughout this fun little drunken punchup of an interlocutory appeal, the plaintiffs have been working directly against their own stated interests in this case. Given that the industry has as much as told us that they are throwing everything they’ve got at Joel Tenenbaum and his co-defendants for the express purpose of making an example of them for the unwashed music-thieving masses, what conceivable reason could they possibly have to turn down a chance for more free publicity from this already very-public trial?

  1. Until manager Brian Message is taken off the witness list, every post on this case will be packt like sardines with Radiohead references. Token apologies to non-fans. []
  2. Okay, I’m taking his word on this one: I haven’t actually read Tenenbaum’s brief. Was this a fair assessment? []
  3. Latin, I believe, for “shut up and take it” []
  4. The music industry’s “best” argument toward this particular point, raised in its original briefing, was that “[t]he broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual.” Translation: “Oh noes! They’re gonna make us look silly on YouTube!” []
  5. And neither has Wikipedia, for what that’s worth. []
  6. Proposed future advisory mandamus topics: Compelling McDonald’s to bring the Butterfinger McFlurry to New England, firing all those whiny Mass Pike tollbooth operators who skipped work on Easter, slashing ticket prices at Fenway, and acting quickly to prevent the looming national disaster presently posed by Limp Bizkit’s impending reunion and comeback tour. []
  7. ”…[p]roper occasions for employing advisory mandamus are hen’s-teeth rare: it is reserved for blockbuster issues, not merely interesting ones.” In Re Bushkin Associates, 864 F2d 241 (1st Cir. 1989)(Selya, J.)(Nancy Gertner, Esq. for petitioners) []
  8. There aren’t many. []

1st Circuit

Radiohead’s Message in Boston File-Sharing Battle: “You and Whose Army?”

April 7th, 2009

Radiohead always has a show or two in the Boston area on every international tour, and I’ve seen and thoroughly enjoyed them here (among other places) more than once. So I was particularly excited to hear that we may be treated to a free spoken-word performance from Radiohead manager Brian Message in our neighborhood federal district court later this year.

Yes, word is that the first major band to use file-sharing as a business model1 has agreed to step up on behalf of the defense in the whole  Sony (et al) v. Joel Tenenbaum (et 100+) mess. I would have preferred to see Tchocky himself personally called to the stand to quietly mumble the opinion of the collective into the mic, but it’s still nice to see that the band is willing to send a consistent Message on this issue.2 Even non-fans have to acknowledge that everything is in its right place on this one.

And this six-ring circus of a trial already had just about everything that regular court-watchers like to see even before the single best quasi-mainstream international rock and/or roll band to break out in my lifetime got involved.  There’s the modest and likable lead defendant and his sympathetic Josef K.-style predicament, the federal judge with an unusual willingness to extrajudicially engage3 the media, and the colorful, ‘radically transparent’ lead attorney who has teamed up with a plucky cadre of Harvard Law students with their own family squabbles to face the veritable firehose of overpriced lawyering available on demand to the American music industry. (And more! So much more!)

Oh, and this might finally be the case that will call the industry out for its unrelenting and shamefully disproportionate civil prosecutions of casual downloaders.4 So there’s that.

Joel Tenenbaum allegedly obtained and shared out seven (7) MP3 audio files in 2003 at the age of sixteen, for which the Recording Industry Association of America (”RIAA”) subsequently demanded its pound of flesh in the form of $12,000. Tenenbaum, now a student at Boston University, has been fighting the case ever since.

For as personally interested as I may have been in the subject matter, the case didn’t present any appellate issues until January, when District Court Judge Nancy Gertner sent the plaintiffs into myxomatotic spasms by granting Tenenbaum’s request to permit a live audio-visual webcast of the proceedings to be streamed through a non-profit website.

And then it got weird.

Judge Gertner subsequently realized that neither party had mentioned an obscure 1996 local court order regulating the use of cameras in the courtroom in their initial arguments, and strongly suggested that the plaintiffs further brief the issue in a motion to reconsider, for which she set a filing deadline. In a puzzling “notice” filed with the court soon after this deadline had passed, the plaintiffs stated their intent to ignore the judge’s request and take the issue up with the First Circuit in order to “resolve the broadcasting issue expeditiously without additional briefing or further appeals.”5

Why go running to the First Circuit? Because the plaintiffs had already sought review from the First of the judge’s order permitting the use of cameras back before anyone had realized that there was already a rule about the use of cameras. This was done by way of something they called a “Petition for Writ of Mandamus or Prohibition.”6 As Ray Beckerman notes, it appears that a writ of prohibition was actually what they were after in this context—in spite of the confusing title and the text of the petition itself, which repeatedly refers to mandamus as the sole form of relief sought. Additional briefs were filed in support of this further appeal (so much for that theory, I guess), and oral argument on this issue has been scheduled for tomorrow, April 8th.

This wacky procedural sideshow was so entertaining that I just about forgot that the actual subject of this dispute—worldwide, instantaneous dissemination of federal courtroom proceedings over the Internet—is unprecedented, at least as far as anyone I’ve read on this so far seems to know. These arguments should be available online in the next couple of days, so more then.

  1. Harvey Danger actually did it first, not that anyone noticed. []
  2. As it were. []
  3. And even occasionally join the ranks of… []
  4. Maybe. []
  5. In the absence of further explanation, this justification alone seems both totally oxymoronic and… well, the other kind, as well as more than a little rude. But this thing was already such a mess by this point that no doubt this course of action made sense to someone. []
  6. Given that these two forms of relief are both distinct and definitionally antonymical, not simply requesting one or the other of them is kind of like asking your waitress for either a veggie platter or a triple cheeseburger, and leaving it up to her which one to actually serve you. []

1st Circuit

Ask a stupid question…

April 2nd, 2009

…and you’ll get something like today’s opinion in Commonwealth v. Harrington, which came down in favor of the Commonwealth today to the surprise of exactly no one.

I happened to be in the Appeals Court the morning that they took up this unusually amusing case. Here are just a couple of instructive excerpts taken verbatim from my notebook:

JUSTICE GREEN (within first minute of argument): “I don’t know why this case is here.”

JUSTICE BROWN (waving his arms around umpire-style): “The Commonwealth wins on all five issues here. All five! That’s called a shutout. The Commonwealth has nailed it.”

It’s not often that appellate judges tell you exactly how they’re going to dispose of a case during the course of oral arguments, let alone within the first sixty seconds. Usually cases in which the outcome will be so obvious are relegated to the purgatory of the appropriately-named “non-argument list,” and the parties never have a chance to show up to explain themselves before an opinion issues. Having actually seen this one for myself, however, I have to suspect that the Court only put it on the calendar for the same reason that Steven Hawking might want to keep a book of easy Soduku puzzles handy on the coffee table: It’s just good, clean, mindless fun.

As an appeal, Harrington had only one reason to live: a District Court judge with a grudge against the current state of the Commonwealth’s ridiculous disorderly conduct statute which dates back to his time as a Massachusetts state representative.1

In the course of a totally routine disorderly conduct case, the judge took it upon himself to try to convince the Court of Appeals that it should hold the current interpretation of the statute2 unconstitutional and strictly limit the law to its face.

Harrington came to the Court not as a direct appeal but via something which, the Court snidely notes, “ostensibly” took the form of a “reported question” under Mass.R.Crim.Pro 34. (This is a fun-but-rarely-used vehicle by which trial courts may send up questions of law which are “so important or doubtful” as to require resolution by the Appeals Court before proceeding to trial.) But the Court is not even convinced that there is a “question” in Harrington at all, and they’ve certainly got a point.

Three of them, actually:

1) The District Court was asking the Appeals Court to overrule the Supreme Judicial Court. This not only directly violated Robert Heinlein’s familiar proscription against teaching pigs to sing3, but may in fact have actually been more pointless than that.4

It’s just Not How Things Are Done, is what I’m trying to say. Lower appellate courts can’t overrule higher ones; they just can’t, no more than a lowly squaddie may draw up detailed battle plans, a state governor set federal immigration policy, or an older sibling overrule a curfew set by the head of the household. Even the courts have a chain of command, and it has to be followed just as strictly as any other.

2) The Appeals Court has not seen the inside of a college dorm room for many, many years. To my knowledge, none of them own beanbag chairs, hackeysacks, or drug rugs, and they certainly do not want to sit up late with you for academic bull sessions while drinking Jolt Cola and listening to John Zorn records. If they are going to strike down a statute5, they’re going to have to have an actual appeal based upon an actual start-to-finish case in front of them to hang their actual decision on. They’ve already got more than enough actual appeals from actual cases to deal with, thank you very much, and they just don’t have time for your what-ifs.

3) The legislature has amended this statute twice since the Commonwealth’s highest court handed down Alegeta, and the law generally presumes the Great and General Court are all total SJC fanboys/girls who spend their weekends updating their pocket parts. If our elected representatives had believed that there was something wrong with the way that our unelected judicial gatekeepers had interpreted the statute, either of those amendments could have done something about this. But they didn’t.

  1. I totally agree on this, but I’ve already hated on this statute more than once in this space and I’ll try to restrain myself now. []
  2. Following the SJC’s opinion in Alegata v. Commonwealth, 353 Mass. 287 [1967], this law now officially includes a definition of “disorderly” which is found nowhere in the statute []
  3. ”…it wastes your time and annoys the pig.” []
  4. Maybe I’ve just read Charlotte’s Web one too many times, but I have to believe that there might be a particularly talented, irresistably anthropromorphic, pig out there somewhere who could actually be taught to sing. []
  5. Which, on balance, they probably won’t anyway []

Criminal Appeals, disorderly conduct, massachusetts