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(Note: See the Sarasota PD's affidavit in support of a"search all persons warrant" here. Thanks to Andrew D. Todd for the link.)
A February 16 article in the Sarasota, Fl. Herald Tribunereports on an unusual step that police took against the persistent presence of drug dealers in an apartment complex: in December 2009, they got a judge to issue a warrant allowing them"to search anyone and everyone who parked or set foot in the apartment complex parking lot." During a two-hour operation that involved the city's SWAT team, police detained and searched a dozen people, arresting four on drug charges and releasing the rest. This week, a state circuit courtjudge"upheld the legality of the search warrant," a ruling that is likely to be appealed.
Writing at the Volokh Conspiracy on Thursday, former prosecutor Orin Kerr concluded that the warrant"sounds pretty plainly unconstitutional," while noting that he only has descriptions of the warrant from a news report.
Assuming bravely that I may be permitted to examine the topic in a historical context, rather than adjudicating the constitutionality of the warrant, I quietly note that the governmental power to conduct these sorts of broadly defined searches has been contested for centuries.
Most famously, in April 1763, the English MP John Wilkes released the forty-fifth edition of his North Briton, a newspaper that would have upset us all terribly much with its failure to engage in civil dialogue. In No. 45, Wilkes typically savaged the leading figures of the British government -- but then crossed a line that he had previously been careful to avoid, almost directly criticizing King George III in particularly sharp language.
"As a propaganda piece," Arthur Cashwrites,"No. 45 was outrageous -- page after page of invectives and sarcasms against the ministers. Then at one point Wilkes came close to a call to rebellion."
Wilkes published his essays in the North Briton under a very thin cover of anonymity, so the resulting arrest warrant directed"his majesty's messengers in ordinary" to"make a strict & diligent search for the Authors, Printers & Publishers" of the newspaper, and upon finding them"to apprehend & seize, together with their papers" whoever they turned out to be.
Possessing a general warrant, the officials charged with executing it ran wild, arresting pretty much everything they could find with two legs that had ink on its fingers, and I'm only exaggerating a little; dozens of people were taken into custody. The officials also tore apart the homes of suspect printers, where they"seized and bundled off masses of papers."
Then, finally, they arrested Wilkes and seized his personal papers, breaking locks and carting away whatever documents they found, not worrying about relevance. Wonderfully, Wilkes insisted upon his status as a gentleman, and was carried away to his imprisonment in a sedan chair. His friends and political allies stayed behind in his home, where Lord Temple declined an invitation from an official to witness the sealing up of Wilkes' papers:"What you are doing is too barbarous an act for any human eye to witness."
A blog post can't begin to describe all of the events that followed, but the ministers who lashed out at John Wilkes would discover that they had harmed their own power. The Court of Common Pleas ordered Wilkes released -- the Court of Kings Bench, which should have handled the matter, was run by a political enemy -- and the arrested printers successfullysued the men who arrested them. The court rulings resulting from the arrests of Wilkes and his printers destroyed the general warrant as an instrument of government power.
Wilkes was a popular figure in the United States for just this reason, as British customs officials used expansive writs of assistance to search any property they suspected to hold smuggled goods -- a move that, in Pauline Maier's words,"awoke opposition throughout the American continent." The powers implied by general warrants and the similarly broad late-colonial writs of assistance can be added to the list of things that moved Americans toward revolution against their government.
Wherever Florida's appellate courts come down on the Sarasota warrant, the apparent breadth of the power given to police in this case seems to lie well outside the boundaries of our political tradition. It's strange to see how little controversy has resulted, and to note that a general warrant issued in late 2009 is just receiving substantial public notice in the early months of 2011.
The arrest of John Wilkes on a general warrant brought furious mobs into the streets of London. A warrant allowing government officials to search anyone and everyone passing through a particular part of Boston in 1770 would have caused riots. Today? Not so much. I don't know how to account for the cultural change, but I'm sorry to see it.
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."
Chris Bray -
2/20/2011
Dear god. Hypothetical cases of a recognition code.
Chris Bray -
2/20/2011
And I do wonder if you notice that your waves of speculative fog actually cloud your own case, rather than building it. For example, you describe the location to be searched as "the habitual resort of maybe a dozen men." So identify them and name them in a request for a search warrant, and in the warrant. The very points is that the police couldn't do that, and so got a warrant to go fishing.
Then you say that the people being chased by police "may have become commingled with the residents of the apartment complex." That's exactly the point, and exactly why we shouldn't give police blanket warrants to search everything with a pulse.
Nothing you've said suggests that a warrant to search "all persons" setting foot in an outdoor space adjacent to an apartment complex does not constitute a general warrant.
This is the entire topic: the Revolutionary generation was horrified by general warrants that gave officials blanket authority to search and seize unspecified persons and property, and defeated those warrants. Is this that?
I'm not certain that it is, although it sure looks that way to me. I am certain that your arguments don't prove it isn't.
Andrew D. Todd -
2/20/2011
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?
Chris Bray -
2/20/2011
I would like to see your definition of a general warrant, as it would have been understood by the people who fought to end their use.
Andrew D. Todd -
2/20/2011
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.
Chris Bray -
2/20/2011
I know the police applied for an "all persons" search warrant, and that Englishmen in the 1760s would have regarded a warrant so phrased as a general warrant. What does a later "pursuit across the apartment complex" have to do with that?
Andrew D. Todd -
2/20/2011
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.
Chris Bray -
2/20/2011
Adding that it's interesting to compare government claims made in different places.
Affidavit for the warrant: "17. During this investigation, Affiant has not seen any innocent persons who utilize this area to congregate. Through affiant's discussions with neighbors, and law enforcement observations, it is unlikely that innocent persons would be at this location due to the high volume of drug sales occurring there."
Third page of the Herald-Tribune story: "Assistant State Attorney Lon Arend worked with officers as they began to investigate the case and arrived shortly after the warrant was served to answer questions about who they could legally search...'The officers worked really hard to cover their bases,' Arend said, 'to make sure people's rights weren't violated, to make sure innocent people were let go quickly.'"
So we knew there were no innocent people there, and also we made sure before we raided the area that we had a plan in place that would enable us to quickly release the innocent people we detained.
Chris Bray -
2/20/2011
"First, the search was with the consent of the property owner."
The search was of the bodies of people. I don't believe my landlord has the power to grant the government permission to search my person, do you?
In any event, the affidavit for a warrant that you've linked to -- thanks for the link -- is headed, on the first page, "SEARCH ALL PERSONS WARRANT." Whatever the circumstances, I don't see how this can't be regarded as a general warrant.
You write that the lot in question "seems to have been" a place where a "a legitimate visitor" would not be found. This is quite a leap, and one the police made in their affidavit; see number 17 on the affidavit: "...Affiant has not seen any innocent persons who utilize this area to congregate."
Never once has an innocent foot trod upon this pavement, your honor.
This is powerful stuff: we can determine the guiltiness of a person's very being with a glance. I see that you are not one who is innocent!
And yet somehow the police only found evidence to justify the arrest of four people, after they had detained twelve. So no innocent people ever congregated there, except for the two-thirds for whom no evidence of unlawful activity could be found.
If the Fourth Amendment can be gotten around by a police declaration that no one in X outdoor location can possibly be innocent -- then there is no Fourth Amendment.
Oh, only criminals drive around in the middle of the night!
That place? Full of crooks!
A general warrant is a general warrant.
I don't doubt that there really were lots of drug dealers and buyers in that parking lot. Nor do I doubt that John Wilkes really wrote the essay that ran in North Briton No. 45, or that people in Boston were really smuggling imported goods to escape taxes.
Andrew D. Todd -
2/20/2011
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.
