(02/20/2011 12:24 PM)
Was It A Public Place?
The account reported is sufficiently fragmentary that much
is unclear, but I think you missed some significant
points from the newspaper article. First, the search was
with the consent of the property owner. Granted that the
property owner probably did not have the right to authorize
a search of his tenants' effects (subject to uncertainties about
the terms of the rental agreements), he did have the power
to authorize the presence of the police in the communal
spaces, at least.
Second, the property to be searched was not a public place
or a accommodation. As per the warrant (aided by a bit
of map-reading), it seems to have been a vacant
lot behind the apartment complex, extending to the next
street (25th street, probably a de-facto alley), part
of which was used for parking, by authorized persons.
The front side of the apartment complex, and the street
addresses, were on Martin Luther King Jr. Way,
on the north side of the block (apparently renamed from 26th
street, numbered streets in Sarasota run east-west, numbers
ascending northwards). The south side was not, in short,
the place where a legitimate visitor would pull
into the apartment complex. The photograph shown in the
article would be of the north side of the complex, and there
are regular parking places located there. The drug
dealers chose their stand on the south side because,
if approached by the police, they could run across
automobile-proof terrain, and vanish into apartments before
the police caught up.
Third, Realistically, the presence of an armed gang of drug
dealers would have deterred innocent bystanders from approaching
this back lot. By definition, a gang "owns turf," and chases other
people out of it.
Fourth, it is not entirely clear, but one would
suspect that the property owner had put up a notice
saying that persons with no legitimate business
were not welcome. No loitering, no soliciting, etc.
Landlords in tough neighborhoods tend to do that, not that
it does any good. The property manager seems to have made
clear to the police that "those people skulking
back there," or words to that effect, had no
legitimate business, that, by implication, he withdrew whatever
implied permission there might have been for the
suspects to be there. They were intruders whom he did not happen
to have the physical power to repel.
If I understand correctly, what the police did was to
covertly infiltrate from the north side, or apartment side,
of the block, moving past the regular parking lot and
apartments, while simultaneously making an overt sweep
from the south, or alley side, with sirens blaring and all.
The idea would be that fugitives would run smack into
the northern party. The police, in hot pursuit, eventually chased
a couple of people into certain apartments in the complex--
and found drugs. The manager had probably informed the
police who the "problem tenants" were, but this was of
too vague a nature as to be sworn to before a judge (though
specific warrants were obtained for two apartments). However, as
tactical information, it probably did enable an officer to
be stationed in such a way as to cut off the
suspects' retreat, and to see a man fleeing from another officer
go into a particular apartment.
http://www.heraldtribune.com/assets/pdf/SH22046214.PDF
(02/20/2011 03:33 PM)
More Information Needed.
Well, the initial onset was apparently followed by a pursuit
across the apartment complex, as the vast majority of the drug
dealers fled. They may have become intermingled with
apartment residents. One does not know who was where. This is a
case which could probably do with some collection of a lot more
detailed information, rather than simply forcing limited
information into political frameworks. I don't feel particularly
sure of knowing the facts, but I don't think you know the facts,
either.
Of course the prisoner is entitled to appeal. However,
in practice, over the last twenty years or so, the courts
have not shown very great enthusiasm about suppressing
evidence in drug cases. Someone like Justice Scalia has come a
considerable distance from Ybarra, back in 1979.
At the same time, don't lose sight of the likelihood that
the prisoner is appealing, instead of plea bargaining, because
he's got a rap sheet.
(February 20, 2011 at 8:20 PM)
In this case, the warrant particularly described a reasonably
circumscribed piece of ground, which I do not believe was
the apartment complex's main parking lot, but at most
a subsidiary parking lot out back. The newspaper seems to
have a map of some kind, but I was not able to access
it, as it was in Flash (*). The warrant was materially
circumscribed because the officers were confined to
exercising it on this fairly small piece of ground,
the habitual resort of maybe a dozen men, rather than, for
example, going off to the local college campus and
conducting a dragnet search. The policemen had very little chance
of finding one of the mayor's political opponents in
this vacant lot in a slum. There was little danger of the
police being turned into an auxiliary of the party in
political power. Again, the warrant may be over the line, and if
so, it will be reversed, but it was not very far over the
line.
This is a far cry from a warrant to take anyone, anywhere, who
might be alleged to have been involved in writing or
publishing the North Briton.
Incidentally, a dozen men loitering at a place where drugs are
sold probably does not mean a drug dealer and a dozen customers.
It probably means a drug dealer and his private army, in
case a rival drug dealer should attack. It would be expected that
customers would make their purchases and speedily depart.
The drug dealer takes a calculated risk in dealing with
customers of whom he could have only limited
knowledge, and he would naturally prefer that one customer
not be a witness to another customer's purchase. Drug dealing,
particularly in highly destructive drugs such as heroin, cocaine,
and amphetamines (the "dead in five years" drugs), is a bit more
underground than alcohol bootlegging ever was. A member of the
entourage might serve as a "cut-out," carrying a "rock" to a
slowly passing car, receiving money, and carrying that to the
dealer. Again, this would have been perfectly well known to the
judge, who necessarily deals with many such cases on a daily
basis. The facts presented were sufficient to convince the judge
that a private army was operating in the neighborhood, and
that this was its base.
With respect to "pursuit across the apartment complex," what
I am suggesting is that in pursuing the people from the vacant
lot, they may have become commingled with the residents of the
apartment complex. For example was the eighty-year-old man ever
out back in the vacant lot? I don't know, and what follows
is pure speculation, but it might be the case that his grandson,
residing with him, was out in the vacant lot, and fled back
to the apartment, and the police, pursuing, found the
grandfather, the grandson, and the grandson's cocaine stash. In
that case, the grandfather would have been briefly detained, and
then released, and the grandson would have been arrested.
(*) I do not have Flash installed, for good and sufficient
security reasons. Flash, like Javascript, of
which it is a superset, is an exercise in unsafe sex.
If the police were not entitled to a warrant, what
would have been their alternative move. The British approach is
the electronic panopticon, ie. more and more surveillance cameras.
[Chris Bray wanted to know what I considered a General Warrant]
and I replied: (February 20, 2011 at 8:37 PM)
What Constitutes a General Warrant?
Well, I was about to pose a similar question to you. I would
like to pose the hypothetical case of a "recognition code."
Suppose that secret agents had a code of multiple challenges and
responses, so that the probability of using all the right phrases,
without being in possession of the code, is at least a
hundred million to one. Now, suppose a judge issues a warrant to
go to such and such a public place, meet whoever arrives,
carrying, let us say, a certain newspaper, and go through
the challenge-response sequence with him, and if he
completes it successfully, arrest him. Is this a general
warrant?
[He considered this a ridiculous suggestion, and responded rudely.
I replied:]
Perhaps Not All That Hypothetical.
Well, of course, I am an engineer. My interests are
different than yours. Nowadays, I write mostly on Techdirt.com,
about various kinds of issues, historical and
legal, which arise out of advanced technology. The kind of
exaggerated rituals you see in bad spy comedies are in
fact used in electronic hardware every thousandth of a second.
Legal cases involving things like illicit music
copying often do turn on electronic handshakes of one kind
or another. One often has to talk about the intentionality issues
of people using certain types of software which they did not
write, and whose design principles and objectives they only
understand very imperfectly. Things like Facebook, for example.
One of the more significant "fishing expedition" cases I
know of at the moment involves a young man who cracked Sony's
system of encrypted copy protection and rights management on
Sony's game console. By doing so, he imperiled Sony's "...give
away the razor and make money on the blades" business model.
The case is in discovery, and the judge appointed a sort of escrow
agent to go through the defendant's hard drive, and separate those
documents Sony is entitled to see from those documents Sony is not
entitled to see.
Another case involves the seizure of a computer server, which was
serving 73,000 websites, over legal matters
involving one website. Such is progress that a small,
comparatively inexpensive box is a kind of virtual
skyscraper, with a corresponding multiplicity of commercial
tenants.
My working definition of a general warrant is whether it is in
fact extensible into a fishing expedition, whether policemen find
ways to do so. Does the policeman have to stop when the
factually specific theory he presented to the judge proves
untenable? That is of course the "pragmatic test."
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