Fish, the Fourth Amendment, and the Scope of Consent

It's always a pleasant surprise to see legal disputes that involve fish for nonsensical reasons, particularly fish-related disputes that may be heard by the United States Supreme Court. Cases involving salmon are of particular interest (see, e.g. here and here). 

I was therefore thrilled to see this report by James Gill of the New Orleans Advocate on the case of Jacson Moore, who thought he could successfully smuggle marijuana inside of frozen salmon. Moore thought wrong:

Baton Rouge police were staking out the UPS depot in Port Allen in 2012 when they noticed a package from Oakland, California, which is evidently the source of many illegal drug shipments. The package was addressed to Moore, who has a police record that would heighten suspicions that drugs were inside. 

The police department, of course, has sniffer dogs that could have settled the issue, but K-9 was not called in. Neither was a search warrant applied for. The cops just kept tabs.
Moore retrieved the package from his doorstep, re-emerging a little later with a Styrofoam container he put in the trunk of his car. He then drove off on an erratic path that indicated he was “heat checking” — trying to make sure the cops weren't on his tail. But they were, and, after 15 zigzagging minutes, he was pulled over. 

A rule of thumb might be that an offender with contraband in his car is best advised not to consent to a search, but Moore did so after being told that the police who stopped him were investigating an armed robbery. He evidently figured that nobody seeking the fruits of a heist would look twice at a few frozen members of the finny tribe. 

When the cops did, he said the fish were a present from his aunt. Officers cut them open and found the dope. Moore also gave them permission to search his apartment, where they found more cannabis and a gun.

Moore argued that the search was unconstitutional, and while the trial court agreed, its decision was overturned on appeal. The Louisiana Supreme Court declined to hear the case although Justice Crichton and Justice Weimar dissented. Joe Gyan Jr. of The Advocate reports that Moore is now trying to appeal to the United States Supreme Court:

In a legal brief filed at the Supreme Court, Messina claims the officers did not have probable cause to believe contraband was in the car, and he says Moore's consent to search the car was not freely and voluntarily given because officers lied about investigating a robbery. 

Messina acknowledges that officers can use deception during interrogations, but he stresses that such interrogations must be preceded by police informing the suspect of certain constitutional rights, such as the right to remain silent. 

"There is a distinction between misleading a defendant once he has relinquished a Constitutional right versus misleading a defendant in order to cause him to relinquish a Constitutional right," he argues in the Supreme Court documents.

There had better be a bit more to Messina's argument, since police can lie in order to gain consent for searches or entry onto property. No less a Fourth Amendment stickler than Justice Warren held that officers can lie about their identity to gain access to property in order to find evidence of drugs.

This is not to say that officers' ability to deceive is unlimited, nor is it to say that Moore does not have a decent Fourth Amendment argument. Indeed, the officers' lie about what they were searching for (evidence of an armed robbery), and the scope of their ultimate search raises significant constitutional concerns. But this case is not so much one of deceit as it is a test of the scope of consent in the Fourth Amendment context.

Police officers can ask for consent to search a suspect's home, vehicle, or person. If officers obtain consent to conduct a search, incriminating evidence that they discover can be admitted at trial. There are limits to the consent exception to Fourth Amendment protection. For one, the consent must be voluntary. Additionally, officers cannot exceed the scope of the authority they are granted by the subject's consent. As Justice Stevens wrote in Walter v. United States:

When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization. Consent to search a garage would not implicitly authorize a search of an adjoining house; a warrant to search for a stolen refrigerator would not authorize the opening of desk drawers.

Moore consenting to a search of his vehicle puts him in a tough position, as the Court held in Florida v. Jimeno that giving officers consent to search a vehicle permits officers to search containers within the body of the car. A search of the trunk is a bit more complicated, though. From the Jimeno decision:

The facts of this case are therefore different from those in State v. Wells, supra, on which the Supreme Court of Florida relied in affirming the supression order in this case. There the Supreme Court of Florida held that consent to search the trunk of a car did not include authorization to pry open a locked briefcase found inside the trunk. It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag.

So under Fourth Amendment law officers can search a closed paper bag in a trunk, but (as the Court noted in some very strong dicta) not a locked briefcase in the trunk. What about the interior of vacuum sealed salmon that are inside a Styrofoam container in the trunk of a car?

The fish in Moore's case are far more analogous to a closed, locked container than a closed paper bag. Officers had to open a Styrofoam container, cut through vacuum sealed wrapping, and open up the fish before they found the drugs. Moore therefore has a strong argument that the officers went beyond the scope permitted by his consent to a search of the vehicle when they searched the fish in the trunk.

Moore's argument is strengthened by the fact that the officers said that they were looking for evidence of an armed robbery when they obtained Moore's consent. In granting the officers consent to search his vehicle for evidence of an armed robbery, Moore likely did not expect that officers would extend their search to the interiors of vacuum sealed fish in the trunk of his car, and has a strong argument that the officers' search went beyond the scope of the consent he granted.

Based on the facts that have been reported, the ideal outcome would be for the United States Supreme Court to grant certiorari and reverse the Louisiana Court of Appeals' decision. Based on the percentage of cases that the Supreme Court agrees to hear, however, I think that such an outcome is unlikely. Accordingly, Moore is most likely out of luck.

As a final note, while this post may be a bit last-minute for law students this semester, this case is a fantastic basis for a criminal procedure exam. Students studying for exams now (and next semester) should take note of this case and the many issues it raises. There may just be a few professors out there who think that this story would make a solid issue-spotter.

BP Lawyers' Brief Formatting Shenanigans

Students entering law school often remark that law school writing assignments are difficult because of their maximum page requirements. This is different from many students' undergraduate experiences, where writing enough to exceed the minimum page requirement is the daunting task.

Law students are trained to adhere to strict maximum limits in their writing because brevity and efficiency is an important component of legal writing. And courts often have strict formatting rules and page or word limits on briefs that parties submit in legal proceedings.

Unfortunately, it appears that lawyers for oil company BP didn't understand the lesson and relied on an "old-school trick" to circumvent the court's formatting requirements. NPR reports on a recent order of the US District Court for the Eastern District of Louisiana. This order is one small chapter of the complex litigation that is unfolding over BP's massive oil spill in the Gulf of Mexico back in 2010.

From the order:

Finally, the Court must address the format of BP’s opposition memorandum. The briefing order allowed BP’s counsel to file a response of up to 35 pages, double-spaced. (Rec. Doc. 13154). This is 10 pages over the usual limit for response briefs. BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages.

The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here.

Any future briefs using similar tactics will be struck.

Word limits and formatting guidelines don't fade out of existence at the end of law school. Legal writing professors would do well to share this opinion with students who are inclined to protest the strict rules of writing assignments.

Louisiana Gun Cases Test the Limits of "Strict Scrutiny"

At Volokh Conspiracy, Eugene Volokh has a post about State v. Webb. There, the Louisiana Supreme Court held that an enhancement to a drug crime conviction based on the defendant's possession of a firearm related to the drugs does not violate the Louisiana Constitution's protection of the right to bear arms.

This case is important because the Louisiana Constitution contains notably strong language when it comes to keeping and bearing arms. Article I, Section 1 of the Louisiana Constitution states:

The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny.

"Strict scrutiny" is the highest level of scrutiny to which laws can be subjected, and laws are often (but not always) overruled when courts apply strict scrutiny. In order to survive strict scrutiny, the government must have a compelling interest, and the law it enacts must be narrowly tailored to achieve this interest.

State v. Webb is the latest in a series of Louisiana cases that have found laws restricting the possession of firearms to meet strict scrutiny. In State v. Draughter, the Louisiana Supreme Court held that felons on probation could be restricted from possessing firearms because they were technically in the custody of the state. And Volokh also notes that in State v. ex rel. J.M., the Louisiana Supreme Court held that restricting the possession of firearms by juveniles under age 17 was constitutional.

Even though the Louisiana Constitution contains some of the strongest language against restrictions on individual citizens' abilities to keep and bear arms, the state supreme court has consistently upheld laws restricting the possession of firearms. While the language in the state constitution is strong, the level of protection does not seem too different from most other states' constitutions.

Proposed Louisiana Drone Law Shot Down

So reports this typo-ridden article at Nola.com:

[State Senator Dan] Claitor argued the new technology could result in the invasion of privacy. A number of media representatives, though, spoke against the bill, touting [the] usefulness of drones to report vital information to the public and law enforcement during natural disasters and other newsworthy events.

The bill would have prohibited warrantless use of drones by law enforcement agencies, but there were numerous exceptions to this broad ban. And the bill would have restricted private use of drones to conduct surveillance on other people, but only if the specific intent of the drone user was to conduct surveillance on non-consenting third parties.

I think it's a shame that the bill failed. I blogged in more detail about the proposed drone law here. There, I noted that while the law was a bit cumbersome, the numerous exceptions to its otherwise broad prohibitions meant that the law could prevent the overly invasive use of drones, while still permitting their usage in many other situations.

Additionally, I think that the critics were right to point out that reporters' abilities to use drones may have been restricted by the law, but the bill provided many exceptions for use of drones by law enforcement officers. As I noted in my earlier post, law enforcement officers would still be able to use drones to survey recent accident scenes, and collect information with drones during states of emergency or in hot pursuit situations. So while critics pointing out limits on private parties may have a point, I don't think that these critics would be correct to label the bill as overly restrictive for law enforcement agencies.

With this bill's death, Louisiana joins North Dakota and other states that have refused to regulate drones. While Louisiana's drone bill will not become law, I hope that states considering drone restrictions take the bill into account as one of the better proposals for regulating this emerging technology.

Louisiana's Proposed Drone Regulations

SFGate reports:

Louisiana should have limits on the use of unmanned aircraft, so people can't spy on their neighbors and government can't snoop in people's backyards without cause, said a state senator proposing restrictions on drones.

. . .

[State Senator, Dan] Claitor's proposal would prohibit the use of a pilotless aircraft to conduct surveillance on a person or private property and to possess or distribute an image captured through such surveillance. That includes photos, sounds or other information recorded by a drone.

The measure includes 16 exceptions, including for the military, mapping purposes and maintenance of utility services. Law enforcement agencies could use drones if they have a search warrant, are documenting a crime scene, searching for a missing person or responding to a hazardous materials spill.

SB 330 is the main bill that includes the restrictions and exceptions. The full text of the bill is available here. A more limited bill has also been proposed that will prohibit drones from flying over water plants and other critical infrastructure. That other bill can be found here.

SB 330 is the more interesting bill of the two, and in general I think it is pretty good. While the bill's ban is pretty broad, this bill is notable for its numerous exceptions to the broad ban. While the bill prohibits the use of drone-collected images by the government in trials, the bill allows law enforcement officers to collect images with drones if they have a warrant. But even if the officers do not have a warrant, the police can collect images with drones if there is a hot pursuit situation, or if the police are surveying the scene of a recent accident. Moreover, people can collect information from drones that are hovering eight feet off the ground in public places and are using no image-enhancing devices.

Moreover, while SB 330's overall ban is broad, it is nevertheless qualified in a way that avoids over-restriction of typical drone activity. The bill prohibits the collection of an image of an individual or real property, but only if that image is collected "with the intent to conduct surveillance on the individual or property captured in the image." So even if somebody is flying a drone with a camera that happens to capture the images of individuals or property, there will be no violation of the statute if that person was not specifically intending to conduct surveillance on those individuals or that property. Admittedly, "surveillance" remains undefined, so the scope of the bill is still a bit indeterminate, but the specific intent component certainly seems to be a step in the right direction.

SB 330 may seem cumbersome at first. It is pretty lengthy due to its list of exceptions to its overall ban. But bans that are short and simple tend to either restrict too much drone activity, or too little. This bill strikes a pretty good balance between protecting people's privacy and allowing for the use of drones by private parties and law enforcement.