Friday, January 16, 2009

Fourth Amendment Damaged?

It is not often that I find myself agreeing with Ruth Bader Ginsberg, but I have to think that this is a case worthy of further discussion. An article from USA Today highlights a recent decision of the Supreme Court that allows evidence against a person, obtained via an unlawful arrest, to be used against that person.

The case in point centers around a person that is, arguably, an idiot that probably did deserve what he got:

A warrant clerk in Coffee County, Ala., mistakenly told a police investigator that a warrant from a nearby county was out for Bennie Dean Herring, who had driven to the Coffee County Sheriff’s Department to get something from his impounded truck. The Dale County computer error was quickly discovered. But by the time the warrant clerk alerted the police investigator, Herring had been arrested and found with an illegal pistol and with methamphetamine in his pocket.

Bennie’s attorney naturally argued that because the arrest had arisen from bad information, and the arrest was therefore illegal, that evidence seized could not be used against him in a court. The lower courts upheld the decision to use the evidence and the Supreme Court verified that decision in a split of five to four.

I have to say that this decision bothers me, and I find myself in the rather odd position of agreeing with the more left-oriented members of the Supreme Court. Ginsberg points out errors in government computers are not at all rare, and, just because the police did not set out to intentionally infringe on his constitutional rights, that did not give them the power to do so. In other words, for the long arm of the Law, it can be negligent and there are no consequences.

Again, to be fair, it is harder to think ill of the Coffee County, AL police, because, seriously, what kind of idiot brings a gun and a pocketful of meth to the police station? Further, he was there to get items from an already impounded truck, so methinks that the police had a right to be suspicious in the first place. But rule of law is not designed to protect only upstanding citizens with more than one operating brain cell; it is designed to protect us all. If Law Enforcement in general has no incentive to keep its data clean and thus protect us from undue harassment, then you can bet that it will not.

Recently, the Dallas Police Dept. came under serious scrutiny because they had gone so far as to purposely plant evidence on people, and they arrested, prosecuted and jailed these poor unfortunates. The victims of that abuse have been finally exonerated, but what is to stop a law agency from planting bad information on citizens in their computers since they can use that for searches that they could not otherwise do? Should the police then find anything on one’s person or property that could cause charges to be brought, then it would be up to the defendant to prove that the police were deliberately trying to deprive them of their rights. How would a defendant go about that process? In the case of the Dallas PD, once the evidence was shown to be powdered drywall and not cocaine, the results were obvious. How do you do that for bad data?

I make a living working in databases, and have for better than 20 years now, and I can tell you that that scares me. Even the best data bases have errors, and that is why audits are so necessary. In my case, having bad data affects the bottom line, and so we have a powerful incentive to clean our data. Not only that, we are responsible for our data and “negligence” is not an excuse that would work at all. In fact, it would likely get us into trouble and fired. Not so for law enforcement, now that the SCOTUS has delivered its wisdom to the masses.

I open this item up for discussion as a way to see where my reasoning could be so far off from the likes of Antonin Scalia.


Kelly said...

On this I must agree with you as well. If the police get away with arresting someone due to bad data, what stops them from 'planting' bad data and blaming it on the computer.

For the last 4 years I have watched the criminal justice system fairly closely and have been amazed at how often they just plain screw things up. Sometimes this benefits the criminal and sometimes it benefits the law.

I saw someone released from jail because of a glitch in the computers or whatever was being used to track records.

I agree that there needs to be vigilance in keeping data up-to-date and clean. All in all, it will benefit society as a whole.

Moroni Locke said...

It would be well to remember that all of government is just our agents: they exercise on our behalf sovereign power that we, through constitutions, have delegated to them, or that they, through usurpation, have added upon themselves in excess of constitutions. In those cases where they assume more authority than we have actually delegated to them, it becomes our duty to expose and throw down these excesses.

If your attorney or insurance agent or real-estate agent was found to make mistakes (even assuming no malicious intent) of such a magnitude as this, you would of course take action to rescind his authority as your agent. You might even, having learned a lesson, be more willing to perform the work that you had delegated to him.

Why not so law enforcement? I believe it is because we want the luxury of being lazy as regards our physical security, as regards getting to know our neighbors and looking after their welfare, and as regards bringing to bear such pressure as I believe the Savior would bring against those who would threaten the love and peace in our neighborhoods. Becoming safe in our homes and neighborhoods (one way of saying "protecting our own rights") takes alot of effort, and I think that Americans, if not most people in the world, have become too accepting of the idea that "it's a problem for government".

Phelonius said...


Those are excellent points, and I was curious to see how long it would take for someone to bring up the point that in insurance and in civil and criminal law, negligence is usually punishable. In my mind, depriving someone of their constitutional rights via "negligence" is what a court should call "criminal negligence."

Now, it can be argued, I suppose, that I am stupid enough to waltz around a police station with a gun and methamphetamine in my pocket, then regardless of how it happens, I deserve to get my comeuppance.

The Constitution does not say, though, that my rights against unlawful search and seizure are forfeit if I am really stupid. It protects even the stupid, and I fear that allowing this to hold will mean that more egregious negligence will become fairly commonplace.