Articles Posted in Legal News / Legal Information

In the late 1980’s, through the end of the 1990’s, criminal defense lawyers took on clients who were prosecuted in U.S. Federal District Courts in New York and Florida for acts that are now prosecuted under the Patriots Act. Internationally anti-terrorist military actions by the U.S. government on foreign soil are undertaken.  

 During those years my office defended, in court, “terrorists” who acted to advance Palestinian partisans, the Irish Republican Army, and other outlier political movements.  I personally had Palestinian and Irish nationals who lived in South Florida and were charged under money laundering statutes for what they characterized as political acts.  They were dealt with by the U.S. Attorney; indicted under federal criminal statutes and prosecuted in the U.S. District Court in the Southern District of Florida.  All this was to change after the events of 911. We are now in a brave new world where criminal laws and procedures have been put aside. When the Bush administration responded to the terrorist acts, hijacking U.S. air carrier aircraft and flying them into the World Trade Center and other U.S. targets, the administration declared a state of war.  The Patriot Act was subsequently passed and declared non-domestic participants as combatants without portfolio: not soldiers, not military personnel, but a newly created legal status of terrorist.   Terrorists are pursued across international borders, U.S. agents kill “targets” within the borders of sovereign states that have not declared war or joined as allies by war treaties.   Without prosecutions, due process rights, combatants and terrorists are killed in civilian quarters and rural areas of aligned but non-combatant states.   Some of those “targets” are U.S. citizens who have enlisted as agents of foreign terrorists groups, identify with those terrorist organization and commit acts which under U.S. law expose them to prosecution as traitors.  But they are not pursued, arrested and extradited under U.S. laws. Now they are targeted for extrajudicial (no arrest, no trial, no courtroom proceedings) killing by U.S. military personnel, private contractors and the use of drones.  The legal consequences will be explored in this and future postings. First a backgrounder on why the U.S. is in war status, and is operating without a formal declaration of war. The government of the United States is NOT pursuing those who prey on U.S. citizens under existing domestic and international criminal laws and procedures. Understand: a person accused of a crime is treated differently than a combatant in a declared war. A “terrorist” is a combatant stripped of the status of combatants under all existing international law and treaties. It is all new, and without judicial review, except for the special courts which are behind closed doors and not subject to review, except by the Executive Branch. Consider it as extrjudicial killings (State sanctioned killings of persons without open courtroom proceedings and reviews).

Had the Bush administration legally designated those actors as criminals then the only recourse the U.S. government would have is legal extradition.  Had Bin Laden been a declared a criminal, he would have had to be first indicted and warrants would have been issued.  At that point, the only way to remove him from Pakistan (or wherever) was the machinery of international extradition compacts.  Not all nations are parties to the United Nations treaties or direct treaties on the extradition of those accused of crimes.  The machinery of extradition is cumbersome, slow and fraught with litigation, most of which had to begin in U.S. federal courts.  The office of the Attorney General was not equipped to scour the planet to find and then begin the process of extradition of those accused and/or suspected of criminal acts in the territorial boundaries of the United States.  Declaring a legal war allows the United States to declare participants a new species of actor; not criminals, not soldiers, not foreign nationals, but persons without the protection of the Geneva Convention or any existing legal definition.   The execution of these persons by use of United States armed forces, private contractors and the use of drones to kill has and will in the future open up the United States and its designees (contractors and military personnel used abroad) to an as yet undefined status.   When the United States government designated the military to convene tribunals for public relations purposes it creates an entire new world of legal issues which will be explored in future blog entries. 

If you are arrested in United States, almost all local police departments and sheriff departments send the name to immigration authorities, known as ICE. If the immigration authorities believe that person does not have legal status to remain in the United States, they issue a detainer. Once your legal issues are resolved, the local authorities will keep you in custody until Homeland Security removes you to federal custody and begins the process, which may ultimately resolve with removal, (deportation). All this may change.

Put on your constitutional scholar hat and take a look at our 4th Amendment and then explore the issue of what is a “detainer.” If it’s not an arrest warrant and it’s not a bench warrant, then it is not enough to deny an individual of their liberty. Immigration violations, unless charged as a crime, are legally sufficient.

A detainer is merely a request. It is not the same as an arrest warrant. Sheriffs and police agencies that refuse to release individuals based on an immigration hold, a detainer, have been sued. According to the Washington Post, Pennsylvania, Colorado, and Oregon have all been successfully sued for wrongfully detaining individuals. Several sheriffs and police departments in those states are now releasing individuals once their criminal problems are resolved even if they have a formal detainer request from Homeland Security. The United States Constitution clearly states that the seizure of a person (that is holding them in custody) requires the filing of charges, or a warrant.

Immigration holds, like a “detainer,” is legally none of the above and it has been held to be legally insufficient to keep an individual in custody. Under the interstate compact, and the rules of comity, a detention can only be lawful if it is pursuant to a warrant, which requires a finding of a criminal act. When an immigration hold is issued, it is not an arrest warrant, and therefore has been found legally insufficient to justify keeping in individual in custody. The American Civil Liberties Union in Colorado has been on the front lines of this litigation and has sued successfully. A federal judge in Oregon held that the county violated the Fourth Amendment rights of that individual when they held her with nothing more than a detainer request from the immigration authorities. Criminal defense lawyers in South Florida are gearing up to sue County sheriffs offices and Miami police departments for wrongfully detaining individuals with nothing more than a detainer from ICE.

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Two unrelated cases will be before the U.S. Supreme Court on the issue of cellphone searches incident to an arrest. In one case the cellphone search was upheld, in the other it was ruled as unconstitutional. The issue is important when 91% of U.S. residents carry cellphones with them.

Searches are 4th Amendment issues. First, warrantless searches are disfavored which means a search without a warrant is acceptable only when it falls within either an “exigency” or “exceptions.” Start by accepting that the 4th Amendment protects people, not places. Expectations of privacy are our cultural heritage, for example: one’s home is your castle and you have a heightened and recognized expectation of greater privacy in your home than on the street. We argue in court all the time about whether someone living in a rooming house, in a car, in a shelter, in a hotel, in a friend’s house is in their home…you can think up a list and it is a long one… The approach courts take is a “totality of the circumstances” standard, which means if you can convince a judge that sleeping under a bridge is your home, then you have a heightened expectation of privacy and are not subject to a warrantless search…unless there are “exigent” circumstances or an “exception”. The first exception is officer safety. Courts have told us for fifty years that because cars move around a lot, or can move, that you have no expectation of privacy and cars are subject to searches. Courts add things like, what is the scope of a search? Is looking in the car’s locked trunk and finding a dead body a reasonable search or is it beyond the scope of the reasons for the search, such as officer safety. Now back to cellphones.

First, was the arrest made in your home or in the street or in a car? OK, both cases involve cars so we have no reasonable expectation of privacy in a car. Next…. was the search incident to an arrest? Was it part of taking an inventory? Once inventoried, can it be opened for officer safety or to preserve your property rights? Would it inevitably been opened? Was the search for officer safety? How can the State argue that looking in a cellphone directory has anything to do with officer safety at a traffic stop? Surely they cannot, but in one case they did and the search was upheld.

The thing to avoid is the old 20-20 hindsight practical approach because courts don’t and can’t do that because we are a nation of laws and the law creates a right to be free of unreasonable searches and seizures. If you did nothing wrong, then you have nothing to hide, right? Or…. you have no recognized constitutional rights to privacy when you commit a crime, so if the cop finds something like a dead body then it’s okay…Right? Or wrong? Or perhaps you start from thinking that if I didn’t do anything wrong then I should be okay with the police searching my cellphone, and my house, and my pockets, and my bank account, and my diary and my charge accounts and my cash purchases. If you have nothing to hide then the police should be able to search you…are you okay with that? Or would you be more comfortable with the reverse, if I have nothing to hide then I have no duty to let police search me.

Just to add something more to the soupy state of your mind at this point…. if a police officer finds a key in your pocket does that mean he can take the key and open your home’s front door and search?

Look for some good intellectual and possibly tortured twisting of the “totality of the circumstances” added to societal approved expectations of privacy, scope of searches and then stand back and watch our Supremes spin this one into some very important new rules for criminal defense lawyers.

For more information read these articles:

Supreme Court Considers Limits On Warrantless Cellphone Searches

Justices Appear Divided on Cellphone Warrants

Who is Steven Wise and why did the New York Times Magazine have him on its cover on last week? Steven Wise is an attorney who for thirty years has been a leading advocate of animal rights, but not in the way most of us understand. Animal rights have been created, or granted, by legislators to protect nonhumans, but nonhumans have never been afforded jurisdictional rights to seek relief in courts. All that will change if Steven Wise gets his way. His objective is for the courts to grant legal person status to nonhumans so that lawyers can sue on the behalf of animals and obtain monetary judgments. If he creates a basis in law for nonhumans to sue humans (he’s representing a chimpanzee suing a human) it will be a moment in history well worth remembering. 
The basic starting point of Western law is jurisdiction. Jurisdiction is what a court grounds itself upon when it adjudicates cases and controversies, accesses damages, punishes violators of criminal laws, and enforces constitutional and statutory rights. In 2014, only persons can avail of courts and the definition of persons has historically been limited to human beings, corporate fictional persons and groups and entities that have been granted standing. If Steven Wise wins his case that will all change. Nonhumans are chattel. Chattel is property, and until the mid-nineteenth century women were legally considered chattel: in England they could not take title to property, could not inherit and could not enforce contracts until the women’s emancipation movement changed women from chattel to persons. Nonhumans are chattel under our legal system, and they can be owned, sold, transferred, and eaten. Soon, if Steven Wise wins his cases, nonhumans will have standing and can sue in courts for the right to be free of human abuses including living conditions, health care, and possibly the right to be not eaten at restaurants and homes as a dinner entrée.

The Nonhuman Rights Project has sued on the behalf of a chimpanzee named Tommy complaining of solitary confinement and abuse, seeking to be freed of captivity and granted asylum in an animal refuge. If the suit goes forward then humans will be called before courts and sued for the range of abuses and claimed damages by nonhumans including bovine (cows: dairy and beef), chickens, ducks (pate), squab, fish, turkeys and cats.

In effect, by seeking to enforce animal rights through standing Steven Wise seeks to break down the legal wall between humans and nonhumans. Animal rights supporters are hopeful that if the courts grant nonhumans standing in the court system that the relationship between humans and nonhumans will be permanently altered.