Center for Individual Liberty
“The Constitution… meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” –Thomas Jefferson to Abigail Adams, 1804
In Thomas Jefferson’s analysis a Supreme Court that can decide the constitutionality of laws for all other branches renders it a “despotic branch.” Certainly many would agree that the Supreme Court has become far more powerful than envisioned by the framers who sought a balance of power between co-equal branches. As the Court acts to overturn congressional and presidential action, many lament that the only seeming check on the court is the selection of the justices themselves. However, the recent Hobby Lobby case pulls back the curtain on a significant area of congressional power that can limit court action.
In the recent Supreme Court case of Burwell v. Hobby Lobby, the Court decided in a 5-4 decision that Hobby Lobby’s religious freedom in deciding not to cover certain birth control treatments through its employee health care plans is protected under the 1993 Religious Freedom Restoration Act (RFRA). Congress passed RFRA in order to reverse a previous court decision in the 1990 case of Employment Division v. Smith. In the Smith case the Court declined to acknowledge Native American ritual use of peyote as protected under the Free Exercise Clause of the First Amendment. The decision seriously narrowed the “compelling interest” doctrine where the Court previously placed a high burden on government regulations that threaten religious practices. In response, Congress—in a nearly unanimous vote—passed RFRA to statutorily require that strict scrutiny be used by the Court in assessing government action that burdens a person’s exercise of religion. That statute played a key role in the Court’s decision for the Hobby Lobby case as justices acknowledged that RFRA protects against substantial government burdens on the free exercise of religion by closely held for-profit corporations.
While proponents of the Affordable Care Act’s mandates on employer coverage are outraged at the thought that Congress cannot micromanage the employee benefit decisions of private employers on account of religious beliefs, they should remember that it was also Congress who decided to protect religious liberty long before it sought to micromanage employer sponsored health care plans. The important distinction here is that the latter is a protection against government power while the former is an expansion of it.
In a unanimous opinion announced earlier today, the U.S. Supreme Court ruled that police officers must obtain a warrant to search a cell phone that is seized incident to an arrest.
The case stemmed from the 2009 arrest of David Riley in California on a traffic stop that found loaded firearms in his car. The officers subsequently seized Riley’s cell phone and searched through his messages, contacts, videos, and photos. Tipped off by information they found in that search, the officers charged Riley with an unrelated shooting that took place several weeks earlier.
Riley attempted to suppress the evidence officers had found on his phone, arguing a violation of his Fourth Amendment rights. The trial court disagreed, as did the appellate court, claiming that the “search incident to arrest” doctrine—used historically to ensure that a person did not have any weapons or contraband on them while in the custody of police—permitted officers to conduct a search of a seized cell phone, even if that search is conducted later and at a different location than the arrest.
Today’s ruling by the U.S. Supreme Court overturns this argument. Chief Justice John G. Roberts Jr., writing for the unanimous court, stated:
After over a year of investigation, surveying law enforcement agencies in 26 states, the ACLU has now released its report on police militarization. “Neighborhoods are not war zones,” the report reads, “and our police officers should not be treating us like wartime enemies.” Data obtained from open records requests for the years 2011-12 covers over 800 SWAT deployments in the report.
Noting that at least 62% of SWAT deployments from their data deal with drug searches, ACLU says that the use of “heavily armed SWAT teams” to search people’s homes for drugs “means that law enforcement agencies across the country are using this hyper-aggressive form of domestic policing to fight a war that has waning public support and has harmed, much more than helped, communities.”
While the report focuses on the equipment used by officers and the alleged crimes that lead them to use it, it also discusses how police militarization is about “culture.”
Today the Eleventh Circuit Court of Appeals issued an opinion in the case of United States v. Quartavious Davis that may impact the policy landscape relative to fourth amendment application in the digital age.
The case was brought about after government agents obtained the cell phone location information of four people over a two month period in 2010 as part of a criminal investigation in Florida. The records were obtained without a warrant. Police received 11,606 location records of one of the suspects, Quartavious Davis, averaging 173 location points each day. Davis was convicted at trial based on this information, and appealed his ruling to the Eleventh Circuit Court. Today’s opinion is the first time a federal appeals court has ruled that a warrant is required to obtain cell phone location data.
“There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute,” the three-judge panel wrote in a unanimous opinion. “In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation.” While the court’s ruling applies only to Florida, Georgia, and Alabama, it may very well be referenced and used in other court cases navigating through the judicial system.
Utah is surrounded by six states, four of which have legalized the possession and use of cannabis to some degree. This means that on a daily basis, drivers from these states pass through Utah’s borders—and in doing so, unwittingly subject themselves to being charged with a class B misdemeanor (up to six months in jail and/or up to a $1,000 fine).
While many people believe that a person should be prohibited from driving while under the influence (of alcohol or drugs), Utah’s law goes much further. It says that “a person may not operate or be in actual physical control of a motor vehicle within this state if the person has any measurable controlled substance or metabolite of a controlled substance in the person’s body.”
A metabolite is the molecular byproduct of your body’s processing of a substance. Though derived from a psychoactive substance, a metabolite may not necessarily be psychoactive itself. The presence of metabolites—and not the presence of the original drug itself—is the primary indicator of drug use for drug testing programs such as urinalysis or hair testing.
The Controlled Substance Advisory Committee in Utah recently discussed regulatory implementation of the bill allowing the use of hemp extract for persons with intractable epilepsy. Libertas Institute was in attendance to hear about the proposed rules. You can listen to the public recording of the meeting here. (The discussion of HB 105 begins at minute 5:00 and goes until minute 35:00.)
This past legislative session, a bill overwhelmingly passed allowing Utahns affected by intractable epileptic seizures, like that of Dravet syndrome, to possess and use an oil extract from hemp plants for therapeutic self-treatment. The bill, HB 105 Plant Extract Amendments, was sponsored by Representative Gage Froerer and comes on the coattails of the federal farm bill which addresses the distinction between cannabis plant varieties used for the psychoactive drug concentration of THC (aka “marijuana”) and the cannabis plant varieties low in THC used instead for their fibrous stalks and seed-based health supplements (aka “industrial hemp”). While the DEA remains confused about the distinction and blindly departs from the rest of the developed world by banning all cannabis plants—including hemp—many states are now recognizing the economic and health benefits of agricultural development in industrial hemp. Libertas recently interviewed the first farmer in the nation to commercially cultivate non-psychoactive industrial hemp in Colorado since the ban was enacted.
The oil extract allowed by HB105 is one such beneficial product from industrial hemp. The oil is high in a substance from hemp plants called cannabidiol (CBD) but is low in the psychoactive substance tetrahydrocannabinol (THC). In fact, those researching the oil believe it is the particular ratio of high levels of CBD to low levels of THC that gives the oil its effectiveness in treating seizures.
The U.S. Supreme Court recently issued a decision in the case of Navarette v. California which has potentially grave consequences for Fourth Amendment rights. The decision upheld the stop of a vehicle precipitated by an anonymous phone tip of erratic driving. Upon identifying the reported vehicle, police followed and did not observe any traffic infractions or signs of impaired driving to corroborate the phone tip. Nevertheless, officers stopped the vehicle based on the alleged reasonable suspicion created by the phone call alone. While the court’s opinion is narrow and contingent on specific facts, it leads us down a dangerous road that erodes the reasonable suspicion standard designed to protect Fourth Amendment rights. By allowing an uncorroborated anonymous phone tip to form the basis of reasonable suspicion, we open the possibility for anyone to send government agents to stop innocent actors without requiring any verification of the accusation.
The court points out the precedent-creating legal standard for a permissible stop:
The Fourth Amendment permits brief investigative stops — such as the traffic stop in this case — when a law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” The standard takes into account “the totality of the circumstances — the whole picture.” Although a mere “hunch” does not create reasonable suspicion, the level of suspicion the standard requires is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less” than is necessary for probable cause.
This type of stop is called a “Terry stop,” deriving its legal authority from the case of Terry v. Ohio (1968) where the court recognized a limited exception to the more traditional probable cause standard for seizing a person in an arrest. In Terry, the court agreed that stopping a person is a form of seizure, and therefore covered by the Fourth Amendment. However, the court reasoned that because this type of police stop is only a brief detention and not the full seizure as with an arrest, they would recognize a limited exception and thus lowered the required standard from probable cause to reasonable suspicion. Over time, the court has widened the application of this exception, giving more discretion to police stops generally. In this case we now see a dilution in the factors that can form a reasonable suspicion.
It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood. —James Madison, Federalist 62
Recently we brought to your attention Utah’s new effort at criminal justice reform. This effort is designed to decrease prison populations in order to decrease public expenditures—to achieve a more efficient administration of justice. In other words, to be “smart on crime.” An article in The Economist gives one reason for growing prison populations: too many laws. This led us to wonder just how many laws there are in our state. While Utah code has over ten million words of laws and regulations, the master table of criminal offenses adds up to 10,403 crimes you can be charged with at the state and local level. With that many laws it is nearly impossible for any person to know what is and is not illegal. Some have even suggested that an average person could easily commit three felonies a day without even realizing it.
Winston Churchill said it best: “if you make ten thousand regulations you destroy all respect for the law.” Well, we have over ten thousand criminal offenses alone—not counting voluminous regulations. The reality is that most people are breaking many of these laws on a regular basis without even knowing it. John Stossel wrote that such extensive rules “paralyze life.” At a minimum, they preclude liberty.
Government legitimately exists to protect the fundamental rights of each individual who comprises it—life, liberty, and property, among other rights. With over 10,000 laws, how many are designed to prohibit offenses against person or property—the most legitimate of all government laws? The answer is only 5%. The rest are mostly regulatory in nature, including traffic and tax offenses, or crimes related to “public order.”
By Sean Brian
Editor’s Note: The issues at heart of the cases described below were the subject of pioneering legislation in Utah that now protects stored and transmitted data on electronic devices such as a cell phone. Of course, federal law—and laws in other states—must still be elevated to the same Fourth Amendment standard.
The following is an abridged version of the author’s 33-page article, available as a free download.
Next week, the U.S. Supreme Court will hear arguments in Reily v. California and United States v. Wurie to resolve the deepening division of authority on how the incident to arrest exception should be applied in the context of cell phones. But in such a fast-paced industry, the Court must also consider how the rule will apply as innovators blur the lines between cell phones and other devices that raise the same Fourth Amendment concerns.
The Fourth Amendment guarantees the right to be secure in our persons and possessions by protecting citizens from unreasonable searches and seizures. Usually, this means that police must first obtain a search warrant in order for the search to be considered reasonable. The incident to arrest exception is an exception to the warrant requirement for searches of an arrestee’s person and area within the arrestee’s control (including any containers) by virtue of a lawful arrest. The reasons for this exception were spelled out in Chimel v. California: to ensure officer safety and preserve evidence that the arrestee might destroy, discard, or conceal. However, these justifications are not requirements to be met in order to justify searches on a case-by-case basis, but rather underlying rationales for the exception’s existence. The only requirement for the exception to apply is a lawful arrest.
In his 2014 State of the State Address, Utah Governor Gary Herbert said:
Addressing population growth also involves improving our criminal justice system and providing structure for individuals to become productive members of society. There has been a great deal of discussion about relocating the state prison. This is a discussion worth having, but it must be done in the larger context of reforming our criminal justice system as a whole.
I have asked for a full review of our current system to develop a plan to reduce recidivism, maximize offenders’ success in becoming law-abiding citizens, and provide judges with the tools they need to accomplish these goals. The prison gates through which people re-enter society must be a permanent exit, and not just a revolving door.
In light of the Governor’s priority to address criminal justice reform he has instructed Director Ron Gordon and the Utah Commission on Criminal and Juvenile Justice (CCJJ) to make reforms by the end of the calendar year. This will include reviewing and changing policy as well as proposing legislative reforms for next year’s session. CCJJ has adopted this review project as its priority study item for this year and has been conducting town-hall style public hearings around the state to obtain feedback and suggestions from the public on criminal justice reform.