Archive for the ‘Right to Privacy’ Category


Some of these ballots are lighter, some are heavier, and while this is more in the latter category, I feel that there is at least one, if not more, clear winners. Sometimes we play with the spread on these things by adjusting who wins by requiring a margin, but with this number of choices, it felt like leaving some easy ones was fair. Without further doodoo, the ballot is here.

If this is news to you, please feel free to look over prior ballots and join the fun, but your entries referring to cases that have already been decided will be set aside. More details on the appropriate tab of this website.


It’s noteworthy that not one but two women have been billed for their cavity searches courtesy of the white-gloved Customs and Border Protection. Do you think it’s noteworthy that said cavity searches didn’t yield any of the illegal drugs they were supposed to yield? Can it be said that the bill was for wasting the CBP’s time? I mean, if you’re going to subject yourself to a cavity search, the least you could do is put some illegal drugs in there beforehand. No?

Filed under “Government Action.” A fuller story at Above the Law Lowering the Bar.


The logic in the opinion below appears to be that criminals who invade people’s computers exist, and therefore computer users should have no expectation of privacy. This makes sense: burglars exist, so I shouldn’t have any expectation of privacy in my home.

I don’t want to trivialize the good the FBI managed to do here: it’s tough to put child pornographers behind bars. The real problem here is that these issues need new laws, and we need a Congress that can pass laws. Luckily, elections are around the corner.

via FBI didn’t need warrant to use malware to find visitors to child-porn website, judge rules

WHAT HAPPENED:  Two years ago, the Supreme Court ruled in Hobby Lobby v. Burwell that the contraceptive mandate could not compel religious institutions to provide birth control to their employees.  “Fine” said the government, “You don’t have to provide birth control, and instead you just have to fill out these two forms and we’ll take care of it for you”.

WHY IS THIS BEFORE THE SUPREME COURT:  “NO!” replied the host of religious institutions who were not satiated by the Supreme Court’s favorable ruling in Hobby Lobby.  “Two forms, as nominal as it may seem, constitutes an affirmative act in favor of providing birth control and that is a sin.”  And that is where we stand now, in that the Court must determine whether two forms is an acceptable burden to place on a company that is denying medical care to their employees, or if two forms is a condemnation to hell-fire and brimstone.

WHAT IS THE RULING:  Thankfully, this case is not yet decided.

RAMIFICATIONS:  Everything and nothing.  Everything if the idea that a hypothetical employee of the Catholic Church cannot get birth control serves as the opening of Pandora’s Box toward overruling Roe v. Wade and diminishing Women’s Rights.  Nothing if you are neither person described in the above referenced sentence.

ROOT FOR ZUBIK IF:  To you, the idea of hell isn’t ridiculous.

ROOT FOR BURWELL IF:  You would like to end more sequels to this never-ending horror movie of a Supreme Court case, which by the way, was what I was going for with the picture above of Dennis Hopper fighting Leatherface in Texas Chainsaw Massacre 2.

WHAT HAPPENED:  In North Dakota, Minnesota and countless other States in the Union, the State may penalize a suspected drunk driver if that driver refuses to submit a blood or breath test.  The test is requested after reasonable suspicion is established and refusal often results in penalties similar to that of a DUI.

WHY IS THIS BEFORE THE SUPREME COURT:  Despite what you may observe from watching the TV show COPS, you do not have an obligation to cooperate with police investigations.  Consent is seen as a waiver of your rights and not a required action.  In this context, the State is penalizing you for exercising your 4th amendment right against search and seizure by giving you a penalty for refusal.  Taken broadly, that’s a problem.  This case asks whether penalties for refusing blood, breath or both, are constitutional.

WHAT IS THE RULING:  This case is not yet decided.

WHAT IS THE RAMIFICATIONS OF THIS DECISION:  If the Court deems these statutes unconstitutional, that will be a significant problem in proving DUI convictions in most cases.  While many people admit to driving drunk when pulled over, many others receive less penalties by refusing the tests and depriving the State the best evidence to secure a conviction.  In this author’s humble opinion, this case probably will have the most effect on the average citizen than any other decision this term.

ROOT FOR BIRCHFIELD, BEYLUND & BERNARD IF:  As far as I’m aware, this is the exclusive list (1) Public Defenders, (2)  Hyper-strict AND liberal Constitution fanatics, and (3) drunks.  It should be noted that one person could qualify for all three of these things

ROOT FOR NORTH DAKOTA AND MINNESOTA IF: You don’t think drunk drivers are a class of persons worth giving strong protections to.

This week’s episode is all about controversial stances on long-held American Institutions.  Brett and Nazim first take down BIG SANDWICH and then turn their attention to the Exclusionary Rule, the 4th Amendment stanards of probable cause & reasonable suspicion, and finally the balance between personal property & the need to fight crime.  Through the cases of Rodriguez v. U.S. (pdf) and California v. Navarette (pdf), Brett and Nazim come full circle from ambitious, liberal law students to grumpy old men.

I love me a good sammich. Thanksgiving and Cubanos are probably my favorites. Just don't cut it.

I love me a good sammich. Thanksgiving and Cubanos are probably my favorites. Just don’t cut it.


WHAT HAPPENED: King was arrested under suspicion of a generally horrible crime; and at the time of his arrest, the Maryland police took a DNA sample without a warrant. The DNA sample was used to link King to the crime and then later used to convict King of the crime.

WHY IS THIS BEFORE THE SUPREME COURT: Sadly, the Court did not review this case to pat the Maryland police on the back for effective police work. The DNA sample was taken pursuant to a Maryland law that allowed police to take DNA samples upon arrest without a warrant, provided that the sample was destroyed shortly after. King argued that taking the sample was a 4th amendment violation, since the police were seizing King’s genetic material without a warrant.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION: The decision would stand to either benefit or hinder police work in lieu of current developments in genetics and DNA testing. As science continues to develop regarding our ability to use DNA in connecting or exonerating accused defendants, the King case stood to balance the 4th Amendment against an effective way of linking defendants to crimes.

WHAT WAS THE RULING: The Court ruled 5-4 in favor of the State of Maryland and upheld King’s conviction. The majority opinion was written by Justice Kennedy, who stated that the parameters of the law which had safeguards that would ensure that the search was nominally intrusive was reasonable in light of the benefit it would provide to police.  In balancing the interests of both sides, Kennedy stated that the nominal intrusion of the DNA test was outweighed by the benefit given to law enforcement. The dissent was written by Justice Scalia, who held that the Maryland statute was an unequivocal violation of the 4th Amendment, as it permitted police to search highly private information without a warrant or probable cause. In a style that is commonly described as “scathing”, Scalia read his opinion aloud and warned that the Court was allowing the police to collect your DNA into a national database, regardless of the arrest.

THE GOOD GUYS WON IF YOU: have had any practical experience with the criminal justice system.

THE BAD GUYS WON IF YOU: you a Supreme Court justice who loves literal reads of the Constitution, fiery rhetoric, and 1984 Big Brother conspiracy theories.

WHO WAS RIGHT: This decision predated the podcast by about two years, so let’s say we were both right.


WHAT HAPPENED: Riley is a criminal defendant who was arrested following a traffic stop, where guns and drugs were found in his vehicle. During the stop, the California Police took and looked through Riley’s cell phone without a warrant, where they found additional evidence that was used against Riley at trial.

WHY IS THIS BEFORE THE SUPREME COURT: The 4th Amendment generally limits the police’s ability to search your belongings, but police have almost unlimited authority to search your car following a valid vehicle stop which results in an arrest. “Almost” is the key word there, because police may only search a car if they are looking for dangerous weapons or evidence that could be tampered with. The question here is whether or not the defendant’s cell phone qualifies in the general rule allowing searches or the more limited exception.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION: The Supreme Court, which is composed generally of old attorneys in antiquated robes and tradition, is about as apt to resolve cell phone problems as you would generally expect. This decision would determine how much privacy citizens have in their cell phone and whether police have any limitations on looking through your text messages and google history.

WHAT WAS THE RULING: The Court ruled unanimously that the search and seizure of Riley’s phone was unconstitutional. Based on the test articulated above, the Court held that a cell phone was neither a dangerous weapon nor evidence required preservation. Furthermore, the Court held that cell phones contain highly private information that require a warrant before police may conduct any form of search. The Court stated that just because cell phones allow us to carry more private information on our persons does not give that information less protection.

THE GOOD GUYS WON IF YOU: have a cell phone.

THE BAD GUYS WON IF YOU: who knows, man. If you’re the kind of person who doesn’t like this opinion, you’re a weirdo.

WHO WAS RIGHT: This decision came out a few years ago, so Brett and Nazim could only revel in its afterglow.

This week handles a hypothetical only a paranoid conspiracy theorist could love.  Through the lens of whether police could solve crimes by searching fingerprints given to access smart phones, Brett and Nazim discuss how the 4th amendment has evolved with technology, specifically through cases like Katz v U.S., Riley v. California and Maryland v. King.  We also cover which Supreme Court Justice loves the Philly Phanatic. Libsyn link

Animated image of the Phanatic dancing with a Phan.

The Philly Phanatic, ladies and gentlemen.