Re: [TSCM-L] {3961} Food for thought?? from Its from Onion on 2009-07-17 (file.mbox)

From: Its from Onion <areda..._at_msn.com>
Date: Fri, 17 Jul 2009 13:28:39 -0500

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From: "Its from Onion" <areda..._at_msn.com>
To: "TSCM-L2006" <TSCM-..._at_googlegroups.com>
Subject: Food for thought??
Date: Fri, 17 Jul 2009 12:50:12 -0500
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Americans appear to have a "love-hate" attitude toward governmental electro=
nic surveillance and covert spying. On the one hand, an overwhelming majori=
ty of the population supports police efforts to identify and prosecute pers=
ons who commit serious and violent crimes. In many contexts, such as politi=
cal corruption and organized crime cases, informants and wiretaps are criti=
cal crime-fighting tools for government investigators. On the other hand, A=
mericans treasure their freedom and resist unsolicited governmental intrusi=
on into their lives. Security and privacy are jeopardized when individuals =
learn that the government has recruited and planted informants in their liv=
es to gather information. While many concede that informants and spies are =
essential for effective law enforcement, few cherish the thought that a cow=
orker or girlfriend may actually be a police spy. Put simply, many American=
s adopt the view that surreptitious electronic surveillance is fine, but "n=
ot in my backyard."=20

When these strong and sometimes conflicting attitudes toward covert surveil=
lance are combined with a well-documented history of government overreachin=
g, both at the federal and state levels by spying on its citizens, American=
s are often surprised to learn that the Court has imposed few restraints on=
the government's authority to plant or send covert informants and spies in=
to our lives. If one accepts the fundamental historical claim that the Four=
th Amendment reflected the Framers' distrust of police power and was design=
ed to limit the discretionary power of the police to invade one's home, it =
becomes paradoxical for the Court to allow police officials unchecked discr=
etion to plant spies and informants into one's privacy.

Consider, for example, the result in Lewis v. United States, the least cont=
roversial of the Court's secret spy cases. Many see no constitutional harm =
where a covert agent enters a home to purchase narcotics from someone like =
Lewis. On the surface, Lewis does appear to be an easy case. But on further=
study, Lewis is troubling. First, the facts reveal a police entry of Lewis=
's home that was neither authorized by a judicial warrant nor an exigency. =
Normally, the absence of a warrant or an emergency would preclude police en=
try into a person's home. Second, the waiver theory utilized by the Lewis C=
ourt proves too much. Imagine that the police are strongly convinced that a=
house is filled with illegal weapons. Imagine further that the police also=
have solid evidence that the owner willingly sells the weapons to anyone w=
ho can produce sufficient cash. Can the police enter the premises without a=
warrant because the owner obviously does not use it as a home and thus, fo=
r constitutional purposes, has waived his Fourth Amendment rights by conver=
ting the building into an unlawful weapons storage facility? The legal answ=
er is no. Despite the suspect's illegal conduct, there is no "waiver" of hi=
s Fourth Amendment rights. Therefore, the fact that Lewis sold drugs from h=
is home should be irrelevant.

If one of the values protected by the Fourth Amendment is freedom from disc=
retionary police intrusion of the home or office, that norm is doubly offen=
ded in cases like Hoffa because the target chosen for scrutiny by the polic=
e is unaware of the government's presence and monitoring of his private act=
ivities. The Court found Hoffa's privacy interests illegitimate because the=
Constitution does not protect "a wrongdoer's misplaced belief that a perso=
n to whom he voluntarily confides his wrongdoing will not reveal it." It is=
submitted here that this statement is specious because the informant in Ho=
ffa was not a friend who subsequently decided to betray Jimmy Hoffa, but a =
government spy right from the start. More importantly, the Court's descript=
ion of the constitutional interest at stake in Hoffa turns upside down the =
value system inherent in the Fourth Amendment. When positive proof that an =
individual has committed a crime exists in the traditional search and seizu=
re context, the burden is still on the government to justify and to limit t=
he intrusion.

In the secret spy cases, however, Fourth Amendment values are reversed. Aft=
er Hoffa, the government need not first assemble objective evidence of wron=
gdoing to covertly invade the homes and offices of its citizens. After Hoff=
a, the government may bypass neutral judicial authorization for the intrusi=
on sought by its undercover agents. After Hoffa, secret spying missions nee=
d not particularize the person, place, and nature of the conversations subj=
ect to surveillance and recording. Whatever the informant sees and hears, r=
egardless of the nexus to criminal behavior, is information known to the po=
lice. After Hoffa, such wide-ranging surveillance is without time limit and=
need not be supervised by a judge.

The Court's assumption of risk analysis=97utilized in On Lee, Lopez, and Wh=
ite=96also poses constitutional problems. First, the Court does not and can=
not reconcile risk theory with the origins of the Fourth Amendment. True, t=
he use of secret informants has deep historical roots. Moreover, the Framer=
s of the Constitution left no specific clues regarding their intent as to w=
hether the Fourth Amendment would regulate or forbid secret informants. The=
Framers also said nothing about eavesdropping, but that omission did not j=
ustify leaving eavesdropping and its modern equivalent, wiretapping, to the=
whims of the police.

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<DIV>Americans appear to have a "love-hate" attitude toward governmental=20
electronic surveillance and covert spying. On the one hand, an overwhelming=
=20
majority of the population supports police efforts to identify and prosecut=
e=20
persons who commit serious and violent crimes. In many contexts, such as=20
political corruption and organized crime cases, informants and wiretaps are=
=20
critical crime-fighting tools for government investigators. On the other ha=
nd,=20
Americans treasure their freedom and resist unsolicited governmental intrus=
ion=20
into their lives. Security and privacy are jeopardized when individuals lea=
rn=20
that the government has recruited and planted informants in their lives to=
=20
gather information. While many concede that informants and spies are essent=
ial=20
for effective law enforcement, few cherish the thought that a coworker or=
=20
girlfriend may actually be a police spy. Put simply, many Americans adopt t=
he=20
view that surreptitious electronic surveillance is fine, but "not in my=20
backyard."=20
<P></P>
<P>When these strong and sometimes conflicting attitudes toward covert=20
surveillance are combined with a well-documented history of government=20
overreaching, both at the federal and state levels by spying on its citizen=
s,=20
Americans are often surprised to learn that the Court has imposed few restr=
aints=20
on the government's authority to plant or send covert informants and spies =
into=20
our lives. If one accepts the fundamental historical claim that the Fourth=
=20
Amendment reflected the Framers' distrust of police power and was designed =
to=20
limit the discretionary power of the police to invade one's home, it become=
s=20
paradoxical for the Court to allow police officials unchecked discretion to=
=20
plant spies and informants into one's privacy.</P>
<P>Consider, for example, the result in <I>Lewis v. United States</I>, the =
least=20
controversial of the Court's secret spy cases. Many see no constitutional h=
arm=20
where a covert agent enters a home to purchase narcotics from someone like=
=20
Lewis. On the surface, <I>Lewis</I> does appear to be an easy case. But on=
=20
further study, <I>Lewis</I> is troubling. First, the facts reveal a police =
entry=20
of Lewis's home that was neither authorized by a judicial warrant nor an=20
exigency. Normally, the absence of a warrant or an emergency would preclude=
=20
police entry into a person's home. Second, the waiver theory utilized by th=
e=20
<I>Lewis</I> Court proves too much. Imagine that the police are strongly=20
convinced that a house is filled with illegal weapons. Imagine further that=
the=20
police also have solid evidence that the owner willingly sells the weapons =
to=20
anyone who can produce sufficient cash. Can the police enter the premises=
=20
without a warrant because the owner obviously does not use it as a home and=
=20
thus, for constitutional purposes, has waived his Fourth Amendment rights b=
y=20
converting the building into an unlawful weapons storage facility? The lega=
l=20
answer is no. Despite the suspect's illegal conduct, there is no "waiver" o=
f his=20
Fourth Amendment rights. Therefore, the fact that Lewis sold drugs from his=
home=20
should be irrelevant.</P>
<P>If one of the values protected by the Fourth Amendment is freedom from=
=20
discretionary police intrusion of the home or office, that norm is doubly=
=20
offended in cases like <I>Hoffa</I> because the target chosen for scrutiny =
by=20
the police is unaware of the government's presence and monitoring of his pr=
ivate=20
activities. The Court found Hoffa's privacy interests illegitimate because =
the=20
Constitution does not protect "a wrongdoer's misplaced belief that a person=
to=20
whom he voluntarily confides his wrongdoing will not reveal it." It is subm=
itted=20
here that this statement is specious because the informant in <I>Hoffa</I> =
was=20
not a friend who subsequently decided to betray Jimmy Hoffa, but a governme=
nt=20
spy right from the start. More importantly, the Court's description of the=
=20
constitutional interest at stake in <I>Hoffa </I>turns upside down the valu=
e=20
system inherent in the Fourth Amendment. When positive proof that an indivi=
dual=20
has committed a crime exists in the traditional search and seizure context,=
the=20
burden is still on the government to justify and to limit the intrusion.</P=
>
<P>In the secret spy cases, however, Fourth Amendment values are reversed. =
After=20
<I>Hoffa</I>, the government need not first assemble objective evidence of=
=20
wrongdoing to covertly invade the homes and offices of its citizens. After=
=20
<I>Hoffa</I>, the government may bypass neutral judicial authorization for =
the=20
intrusion sought by its undercover agents. After <I>Hoffa</I>, secret spyin=
g=20
missions need not particularize the person, place, and nature of the=20
conversations subject to surveillance and recording. Whatever the informant=
sees=20
and hears, regardless of the nexus to criminal behavior, is information kno=
wn to=20
the police. After <I>Hoffa</I>, such wide-ranging surveillance is without t=
ime=20
limit and need not be supervised by a judge.</P>
<P>The Court's assumption of risk analysis=97utilized in <I>On Lee, Lopez,<=
/I> and=20
<I>White</I>=96also poses constitutional problems. First, the Court does no=
t and=20
cannot reconcile risk theory with the origins of the Fourth Amendment. True=
, the=20
use of secret informants has deep historical roots. Moreover, the Framers o=
f the=20
Constitution left no specific clues regarding their intent as to whether th=
e=20
Fourth Amendment would regulate or forbid secret informants. The Framers al=
so=20
said nothing about eavesdropping, but that omission did not justify leaving=
=20
eavesdropping and its modern equivalent, wiretapping, to the whims of the=
=20
police.</P>
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