Perfidy by the Police and the Department of Justice
What makes this case outrageous is not merely that the motel owners are accused of no crime. It is not even that the basis for the case is a small fraction of one percent of the guests they have had, or that these few arrests of guests are stretched over twenty years.
The real outrage here is that the government would have prosecuted the motel owners if the owners had engaged in the kind of invasion of privacy necessary to prevent the arrests. If they had gone snooping in on their guests' privacy, listening to their phone calls, and otherwise undertaking the steps necessary to be sure that absolutely no illegal activity was happening there, they would be guilty of violating numerous laws.
The Federal government here is acting as what would -- if anyone but government did this -- be a criminal racketeering operation, allowing the local police to avoid state laws preventing this practice. For the local police, the sin is perfidy. They are flying the flag of state and local laws, which they have taken oaths to enforce. In fact, they are intentionally sidestepping those laws for their own profit.
There's the prohibition on drugs again.
ReplyDeleteI just watched Ken Burn's documentary on alcohol prohibition, and near the end, the government made it a law that you *had* to inform on your neighbors if you found out they were making or selling booze.
Wow, how on Earth is that not in violation of the Fourth Amendment, and why doesn't anyone in government care?
ReplyDeleteAre you sure? I'm aware of invasion of privacy as a tort (i.e., the offended guests can sue your pants off and put you out of business); but is it a crime?
ReplyDeleteWhat's outrageous is the idea of the government "encouraging" people to do "private searches," legal or not, as a way of getting around their Fourth Amendment obligations to get warrants and probable cause.
I actually had a case that turned on this a couple of years ago - an NCO snooped in a Soldier's private stuff and found Things That Should Not Have Been There. The question was whether it counted as a "private search" (he's just a nosy neighbor, in which case the evidence would've been admissible) or a "government search" (he's acting as a member of the command, in which case he needs a warrant or command search authorization, and the evidence was not inadmissible).
P.S. - This was not a military inspection (which is a different animal, legally, and obeys different laws). I'm not going to give more details because I don't write about my clients online. (Let's just say the judge and I disagreed about the nature of the search, and the appellate courts will do their job in due course.)
ReplyDeleteP.P.S. - Err, change "not inadmissible" to "not admissible.'
ReplyDeleteJoe:
ReplyDeleteI'm sure that monitoring their phone conversations would put you in danger of wiretapping laws. In Georgia you need at least one party's permission to monitor/record a phone conversation: while you could put that into the motel rules, so that staying there implied consent to monitoring, you would have to either disable the phone so it couldn't call out of state (where there are often both-party permission requirements), or put yourself at risk of violating the law even if you insisted on a waiving of privacy rights as a condition of staying in your hotel.
Now, as for barging in on someone to see what they are up to, my understanding is that a renter normally has significant trespass rights they can enforce criminally versus a landlord. I'm not sure if that applies to renting a motel room for one night vice an apartment for one month, but in principle I can't see why not.
A couple of strictly legal questions:
ReplyDeleteI'm aware of invasion of privacy as a tort....
Didn't the Supreme Court find privacy in the Constitution in one of its abortion rulings? Wouldn't that privacy be extensible to private entities when the results are used for a public purpose e.g., haling someone into court on the basis of the findings?
you would have to either disable the phone so it couldn't call out of state (where there are often both-party permission requirements)....
Isn't this governed by where the phone call originated? Texas and New Mexico have similar recording requirements, and in Texas, anyway, I don't even have to warn the callee that I'm recording. Further, the fact that I am recording is taken as proof of my own consent.
Eric Hines
No, the Supreme Court didn't outright find a "right to privacy" even in Roe v. Wade. And remember that Constitutional rights only apply between people and governments, not between people and people - that's why there has to be a statute (as Grim is telling me there is) to make unauthorized eavesdropping a crime for private citizens. And even if it is a crime, illegal private activity doesn't make evidence inadmissible - that was the point of the story I was telling.
ReplyDeleteIf the police break into your house with no warrant and find evidence, it's inadmissible in court. If your neighbor does the same, he's guilty of a crime himself, but the evidence of what he saw can be used.
The IFJ website doesn't give a lot of details about what the government says the Caswells should've been doing - but if this is an effort to intimidate hotel owners into "voluntarily" doing for the government what it can't lawfully do under the Constitution, that is perfidious indeed.
Good point, Joe. The government can always offer immunity to 'good citizens' who break the law 'out of an honest desire to help the police uphold the law...'
ReplyDeleteThat's bad business.
Or even just use prosecutorial discretion, without even a need for formal immunity and the consequent paper trail, and decide not to do it.
ReplyDeleteI love prosecutorial discretion. In certain areas, I'd like to see a hell of a lot more of it. But not used that way!