Police, The Fourth Amendment, Qualified Immunity

Parody, not legal advice

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Memo to police:

How to use the new Supreme Court decision in Jones (the GPS case):

1. Start putting remote kill switches in regular citizen cars. It is better for police to have an available kill switch and not need it than it is to need a kill swith and not have it. Four justices don’t seem to think this implicates 4a at all (prior to use of the kill switch to stop the vehicle anyway), and it only takes one more who believes that these remote switches are so minor that they don’t require a warrant. Even Justice Scalia’s majority opinion states that there has to be both trespass and monitoring to make a 4a violation. But kill switches don’t “monitor,” so go for it! Start with your impounds and then work your way thru the high crime neighborhoods. If people try to stop an officer from installing the kill switch then arrest and charge the perp with interference. The prosecutor’s office can always drop the charge if the perp consents to always have a kill switch as part of his plea agreement.

2. Keep doing unwarranted GPS. You might wonder why the police should keep doing this, post-Jones. The reason is simple: none of the evidence collected by the GPS needs to be admitted in court. The information might be less useful because of the inadmissibility, but it is still good stuff. AND: it gets even better! After the police officers collect up all the GPS evidence, then the prosecutor can always isolate the brief relevant segments and admit ONLY those into evidence when the court case rolls around. Even Justice Alito’s concurring opinion that addressed the monitoring aspect (rather than the “trespass” aspect) conceded that short term monitoring (in and of itself) might not be a “search.” This works out perfectly because in most cases it is only a tiny, tiny sliver of the monitoring that is needed in court to make the case. This tiny sliver will always be “short term” so you basically get in everything you want to get in on a going forward basis.

3. If the perp wants to see all the collected data then make sure the extraneous monitoring has ceased to exist before his court appointed lawyer asks for it. So far as the perp needs to know, the only monitoring that was performed was that little tiny sliver that will be shown to the jury in court. Any other monitoring simply didn’t happen, absent the perp providing some good evidence indicating otherwise.

4. A policeman’s best friend is good faith error — and until they invent a tiny person who can get inside a policeman’s skull, they are all good faith errors when the policeman makes them (because he says so!). This is a powerful perk. As courts try to draw some kind of legal line between permissible short term surveillance and impermissible long term surveillance, then the policeman simply needs to say that the legal standard is confusing and constantly evolving and the policeman got mixed up and thought his monitoring did qualify as short term even though it turned out that it did not (shucks!). I mean it is not like the policeman put the GPS device into the perp’s pet dinosaur!

Written by Burgers Allday

January 24, 2012 at 10:29 am

Posted in Uncategorized

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