Hey, kids, get out of my yard!

Back in 2004, D.C. police decided that Antoine Jones was a bad dude and needed watching. Employing a spy store full of surveillance tools, the police obtained a court order allowing them to install a GPS device on the Jeep that Mr. Jones routinely drove (the car was registered to his wife). The court told the police they had ten days to install the device within the District.

On the 11th day, in a parking lot in Maryland, the police attached the GPS device to Mr. Jones' Jeep. Over the course of the next month the police obtained more than 2,000 pages of tracking data they used to put Mr. Jones with some really bad dudes who dealt cocaine.

Mr. Jones was subsequently indicted for his role in the conspiracy. His first trial ended in a hung jury. Los federales then obtained a second indictment. Mr. Jones wasn't so lucky at his second trial - he was convicted and sentenced to life in prison.

On appeal he argued that the installation of the GPS device constituted an unlawful search and seizure. The appellate court said "yes" and "no." The court held that installing a GPS device on a car was not the equivalent of a search - based upon the Katz test of whether the owner had a reasonable expectation in privacy as to his movements on a public roads. But the court did rule that the data obtained while the car was parked in the couple's garage or driveway did violated the Katz test.

In U.S. v. Jones, 565 US _____ (2012), the U.S. Supreme Court held that the attachment of the GPS device did constitute a search as law enforcement personnel, in effect, trespassed upon Mr. Jones' property in placing the device on the undercarriage of his car. Justice Scalia took a trip in his wayback machine and held that the Fourth Amendment was designed to protect the citizenry from trespass by the state. He wrote that Katz did not supplant the concept of physical trespass as the test to determine whether something was a search - but that  it was an addition to the analysis.

Of course that doesn't explain why it's okay for the police to look through your trash can while it sits on your driveway waiting to be taken away by the sanitation engineers. It also doesn't jibe with allowing the police to wander up to a garage and look in the windows - or to look in the open windows of a house. In making those determinations, the Supremes looked at Katz and then looked away from the Bill of Rights.

In her concurrence, Justice Sotomayor castigated Justice Scalia for taking a narrow approach to the Fourth Amendment. Justice Sotomayor would rather use the Katz analysis for determining whether a search took place. In her view, today's technologies have taken us beyond the question of whether the police trespassed on someone's property. She also raised the question of whether we waive our reasonable expectation of privacy when we disclose private information to a third party (just think about your smartphone's GPS or the information you type in to register for certain websites).

Justice Alito was also concerned that the concept of trespass was passe and that it led to inconsistent outcomes depending on the surveillance methods used by the police. He also pointed out Justice Scalia's opinion failed to address the installation of tracking devices by car manufacturers such as GM's OnStar or Lo-Jack.

Justice Alito also questioned whether a motorist had a reasonable expectation of privacy regarding the movement of his car in public. He didn't seem to have too much problem with what the government did in Mr. Jones' case, but he said at some point such monitoring would raise questions. For Justice Alito, attaching the device to the Jeep wasn't the problem, the problem was the amount of time the device was allowed to transmit.

What we have here is the so-called conservative bloc of the Court ruling against the use of warrantless GPS tracking by the police to be unconstitutional based on 18th century common law trespass while the so-called liberal bloc arguing that the installation of the unit was unconstitutional because it violated Mr. Jones' reasonable expectation of privacy due to the length of time the device was transmitting. Would we have had a different decision had the device only been installed for a week, ten days, two weeks?

From my point of view, the concept of trespass should be the starting point for any Fourth Amendment analysis - with the Katz analysis used to determine if an intrusion into one's privacy not contemplated by the Founding Fathers constitutes a search. Relying on one without the other makes little sense. Left unsaid is how the Court plans to reconcile the holding in Jones with prior decisions ignoring the tort of trespass upon property.

For more analysis, please see:

"Supreme Court strikes down GPS tracking device, raises more questions in the process," Liberty and Justice for Y'all (Jan. 23, 2012)

"Reactions to Jones v. U.S.: the government fared much better than everyone realizes," SCOTUSblog (Jan. 23, 2012)

Update: Perry's death party delayed

Last night the US Supreme Court put a halt to the State of Texas' attempt to murder Duane Buck. The issue is whether the punishment phase of Mr. Buck's trial was tainted by testimony from the state's expert witness, Dr. Walter Quijano, that a black man was more likely to be a future threat than a white man.

Then Texas Attorney General John Cornyn (now a US Senator) urged that Mr. Buck and five other inmates sentenced to death receive new punishment trials as a result of Dr. Quijano's testimony. The other five men received new punishment trials and were all sentenced to die (again). For some reason, Mr. Buck was not afforded the same treatment.

Thursday afternoon, Judge Denise Collins (the original trial judge) rejected a request by the prosecutor who tried the case, Ms. Linda Geffen, to take whatever action she could to halt the scheduled murder.

Rick Perry, who's never come across an execution he didn't like, has repeatedly rejected requests to halt the execution. The fair-haired one is more concerned with scoring votes from white Republicans who support the state-sponsored murder of anyone who isn't white.

Supremes to tackle confrontation again

The US Supreme Court is set to hear another case on what appears to be the biggest hot button topic in the courthouse - confrontation.

In Williams v. Illinois, 939 NE.2d 268 (Illinois 2010), Sandy Williams was charged with two counts of aggravated sexual assault, aggravated robbery and aggravated kidnapping. At trial the state chose not to call the lab analyst who ran DNA tests on swabs in a rape kit. The state did not seek to introduce the lab report into evidence but called another lab analyst as an expert witness. The state's expert then testified as to the method by which DNA samples are tested. She was then asked to give her opinion as to whether the DNA profile from the sample "matched" the DNA profile of Mr. Williams. She claimed she reviewed the lab report in coming to her opinion.

The defense objected to the analyst's testimony on the grounds that Mr. Williams' Sixth Amendment right to confront the witnesses against him was violated as he was not afforded the opportunity to cross examine the analyst who performed the actual tests upon which the lab results were based.

The judge ruled that this was not a Crawford matter and that the real issue was how much "weight" to give the evidence, not whether it should be excluded.

The Supreme Court will now decide if this scenario falls within the holding in Bullcoming. In that case Justice Sotomayor penned a concurrence that seemed to indicate she thought it was acceptable for the state to put on an expert witness (who did not conduct the test in question) to give their "independent" opinion of the results of the test.

While the rules of evidence allow experts to base their opinions on documents that would not be admissible in a court proceeding, that rule had more to do with the sources of the experts' knowledge than with giving an opinion based on someone else's (otherwise) inadmissible report.

Allow the state to get away with such a blatant end-run around Crawford would deprive defendants from questioning the analysts who conducted lab tests about the procedures used in the test. It would prevent defendants from questioning analysts about whether tests were conducted properly and in accordance with generally accepted standards.

Let's get real here. The state's "expert" did not give an "independent" opinion on the lab results. The "expert" was chosen because she would testify that the lab results indicated that Mr. Williams did what he was accused of. The "expert's" opinion was based upon a lab report that was inadmissible since the state didn't call the actual analyst to the stand. And, to top it off, claiming that the real issue is the weight to be given the expert's opinion, and not whether Mr. Williams' confrontation rights were violated, makes an absolute mockery of a person's right to confront his accusers. The assumption of the court is that the analysis was good science - whether or not the state met its burden to prove so.

Confrontation is not a right that can be "balanced" by some scale that weighs the rights of the accused against the level of inconvenience for the state.

Update: High Court grants stay of Texas execution

John Balentine, who was scheduled to be murdered by the State of Texas on Wednesday night, received a last minute reprieve from the U.S. Supreme Court about an hour before his scheduled execution.

The Court granted the stay so that it could review Mr. Balentine's claim that he was afforded ineffective assistance of counsel during his trial and during the early stages of the appeal process. The stay follows the Court's decision last week to review an Arizona case in which the question of whether a person convicted of a crime is entitled to effective representation during the early stages of the appeals process.

The US Constitution guarantees the right of a criminal defendant to be represented by counsel through trial. Courts have long held that the same right does not apply to defendants seeking appellate relief. We are all entitled to our day in court -- but if we don't like the result we're not entitled to appeal, unless we can afford to pay for it.

While I find it unlikely that the Supreme Court would extend the right to counsel to the appellate process, I wouldn't be completely shocked if the Court extended the right to competent counsel to persons appealing convictions of capital crimes.