THE FALLEN CONCEPT

Labor Unions in the Present Day

It is a perplexing reality, this state of the labor union in 21st century America. Labor unions? No. These are frail and weak straw men.

Look closely at the random pictures from myriad cities extending coast-to-coast. Look closely: These are no longer unions in any traditional sense. In reality, they are not real united and independent work fronts at all: instead, they serve as nothing more than arms of the corporations from which they should protect the helpless blue-collar bee.

Check out the scene in once strong union towns across America (San Francisco, Detroit, Cleveland, Pittsburgh): employee rights and privileges that were fought for over the course of centuries are being sold out so that corporate figureheads can loot companies, fat hogs getting fatter on the backs of the rank and file who create the very products they sell.

And our unions? -- instead of implementing safe-guards to stop this horrible cycle, instead of actively destroying the company's ability to sell their wares, instead of interrupting advertising and attacking brand name power, only rein in the workers, immorally selling out their vital economic interests along the way.

Even the threats to strike seem contrived -- almost staged -- as 11th hour compromises are reached (compromises that always seems to provide long-range profit healing for the company while workers relinquish salary and healthcare ‘bennies’ drop-by-drop).

In the past, a strike would be the death knell for a business: if workers walked off the job, they took the customer right along with them. In days past, workers would do whatever they had to do (the most effective tactics were to create product boycotts, rendering scab labor moot) in order to keep their job security in tact.

However, these ideals have mysteriously been abandoned. A wonderful concept that grew fragile and fell away like so much dead skin.

But why such a stunning and drastic change? Basically, the element of fear is gone from the relationship between owner and union; now, these entities are more a partnership and less an adversarial brawl. In essence, today's typical corporation benefits handsomely from the existence of a "union," since union officers satisfy a real purpose for them: they keep a potential out-of-control work force in line. They corral the electric seed for revolt and quickly diffuse it.

Unions, in this day and age, are watchdogs for management. In actuality, for the meager price of health and retirement contributions, these corporate officers are able to insure that they maintain full and absolute control of their workers through a third party coalition that is the ostensible voice of the employee.

A masterful and ingenious con, indeed. ~John Aiello

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BALI AND THE BIGGER PICTURE

By Ian Chalmers and Robert Leeson

The second wave of Bali bombings reflects an ongoing dispute about the organizational umbrella of the Asian region. The international flow of trade and capital has undermined traditional power structures and has pushed Asian leaders towards free trade and the consideration of monetary unions. Some of those whose power is threatened have unleashed a tsunami of vengeance in the hope that a regional caliphate will emerge from the rubble.

Strange though it may sound, the terrorists and their masters are engaging in rational optimizing behavior. Underdogs of war must focus on provoking and overstretching their enemies and waiting for their crucial mistake.

Casualties have been much higher in other areas of internal conflict (Aceh, Maluku, Papua, Sulawesi etc) but killing tourists in the ‘flesh pots’ of Bali has a potent symbolic significance.

The tourist industry has been fed by a growing sense of a unique identity: the island has recently experienced a strong Balinese revivalist movement. (Since 2001 authority over most social and economic affairs has been devolved to the district level and control of tourism is largely decentralized). Yet, tourist income represents only about 3% of total economic activity in Indonesia (although about 40% derives from Bali) so the terrorists must be hoping that capital flows will be disrupted by fear of future dislocations. Our rational response is to minimize the dislocation to the Indonesian economy and to persevere with existing collaborative arrangements.

Indonesia is coming under intense international pressure to crack down on local terrorists. But there are a number of domestic factors that both help and hinder the government in this regard. Indonesia has traditionally been very resistant to outside pressure. But since 2002 it has taken the unprecedented step of allowing foreign (Australian) police and forensic scientists unlimited access to local records and day-to-day activities. Australian police are effectively running several local operations.

Reportedly, over 250 members of Jemaah Islamiyah have been successfully prosecuted in the courts. It would only strengthen our enemies if the concessions that the Indonesians have made are not recognized, and their government is still criticized for having not done enough.

Islam has enjoyed a resurgence in Indonesia since 1990. The public culture is becoming increasingly Muslim, although the dominant form of Islam is overwhelmingly moderate. There was (and still is) widespread revulsion against terrorists using Islam as a justification for wanton murder. On the other hand, if the government is seen to be acceding to foreign pressure, it may become a recruiting ground for radical elements. Perceived foreign pressure could work against our interests, by legitimizing radical opponents, and de-legitimizing government efforts to restrict terrorists.

In the short term, the impact these bombings may be as severe as the equivalent atrocities in 2002 as foreigners (and the increasingly important domestic tourists) stay away from Bali. The long-term impact will depend on how the government responds. If it is seen to be successfully managing the crisis, then those attacking the government for being either too weak or too strong will have less legitimacy.

The key for success will be the Indonesian government’s success in maintaining domestic political support for its efforts. If they can continue to gain community support for the efforts to isolate terrorists, then it is likely to succeed. A hard-line ‘security approach’ will not alone be successful – any such measures must be accompanied by an intense ‘social approach’.

Suicide bombers believe they are maximizing their perpetual happiness by committing their horrendous acts. Such sentiments are not unique to Islam. In 1918, Anthony Eden (later a British Prime Minister) wrote to his mother from the Western front: "we must all die some day, why not now by the most honorable way possible, the way that opens the gates to paradise – the soldier’s death". By lessening the perceived certainty of such associations, we also lessen the probability that terrorists will make a ‘rational’ calculation that ‘heavenly’ capital and paradise awaits them.

As Nobel laureate Gary Becker and Yona Rubinstein pointed out, when we respond to terrorism we should recognize that overcoming fear is a fixed, not a variable, cost. Probabilities don’t change much – but perceptions do. Thus, Indonesia’s trading partners must distinguish between fearful perceptions and rational self-interest.

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 Ian Chalmers is Senior Lecturer, Indonesian Studies, Curtin University of Technology, Australia. Robert Leeson is Associate Professor of Economics, Murdoch University, Australia, and currently ranked joint 17^th on the list of the world’s top 500 economists.

 © 2005. By Ian Chalmers and Robert Lesson. All rights reserved. Reproduction without written permission of the authors expressly prohibited.

 To reach the authors, use the email link on The Electric Review home page and your comments will be forwarded.

 This story was first published October 4, 2005 in the Australian Financial Review.

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Tony Serra is a renown criminal defense attorney and a San Francisco counter-culture icon. But aside from his legendary prowess as a lawyer and his ability to win “unwinable cases,” Serra is a man of deep conviction -- a man who’s dedicated his life not to the pursuit of money, but instead to defending Americans against government oppression.

Tony Serra’s client list over the past 40 years has included Hell’s Angels, SLA members, Black Panther radicals and impoverished American Indians facing death penalty charges for killing cops in self defense. Even though the alleged crimes and the clients have been different, Serra has remained the same. He is an anachronism in the strictest sense of the word: A lawyer with true social consciousness, Serra doesn’t care so much about his retainer agreements as he does the erosion of our personal and civic rights, fighting in the name of the collective spirit.

And after four decades practicing law, Tony Serra has been in enough courtrooms to know that the government is becoming too powerful. Too many of our constitutional rights are being stripped from us. Yet, no one mentions it. Our newspapers and television analysts faithfully report the news, but seldom comment on it (while the devastating affects these conditions have had on the poor and the under-privileged are enshrined in silence).

Make no mistake -- with every passing day the very idea of this Democracy crumbles just a little bit more. Serra sees it firsthand in the cold courthouses of America, and he’s contributed the following column to Rat’s Notebook, now making public his concerns and fears and uncensored realizations (much like the poet Allen Ginsberg did in 1955, howling out against the stark machine mind and the faceless corporations that shackle our lives).

In the end, the equation is simple: give away too much of the heart and you’ll mourn the holy flowers of your soul forever.

--John Aiello

II.

THE PEOPLE’S LAWYER

By J. Tony Serra

“Oh, what can ail thee,/ knight-at-arms/Alone and palely loitering?”
-- John Keats (From “La Belle Dame Sans Merci”)

The Constitution burns and we, the radical lawyer, the civil rights lawyer, the People's lawyer, the nation's guardians of our precious precepts of liberty, we sit on our hands in mute astonishment. Everything that we have worked for over a lifetime in the judicial sphere crumbles around us. The Bush administration advances like Goths pillaging Rome and we are frozen in disbelief.

Surreptitious investigations, warrantless searches, coerced confessions, electronic eavesdropping without probable cause, detention without bail or charges, racial and religious profiling, abandonment of jury trials, incarcerations without benefit of legal counsel, and yes, even torture. Who can believe it!

Bush has squandered the country's wealth on endless war and unlimited gifts to his corporate cronies; he has made the United States the bane of the civilized world, and he takes from us, the United States citizenry, one by one, our basic freedoms, and the lawyers say nothing.

Stunned or emotionally or financially conflicted, we huddle like sheep before the slaughter. Is this what happened in 1939 when Hitler first ascended to power? Where are the Thomas Jeffersons and Thomas Paines? Why don't courtroom lawyers boycott the system, 'rage against the dying of the light', denounce, defy -- where is our voice of resistance?

Our children in the halls of academia protest our loss of civil liberties, protest the governmental rape of our resources, protest our unconscionable military destructions. We must find this path of our children and our students. We are the antithesis. Soon it will be too late.

J. Tony Serra is a defense attorney who practices in San Francisco, California.
“The People’s Lawyer” © J. Tony Serra. 2003. All rights reserved.

To contact Mr. Serra about this article, please email The Electric Review.

III.

THE ROAD TO JAIL IS PAVED WITH GOOD INTENTIONS

Knowing The Law & Asking Questions To Protect Your Rights

By Paul. J. Aiello

“Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.” ---Daniel Webster

The passage of the United States Patriot Act, and related legislation, has created a prevailing atmosphere in this country in which we are witnessing a wholescale and unabashed direct assault on individual rights and protections. It is primarily through legislation that the federal and state governments “officially” expand their authority over its citizens. “Officially”, however, does not necessarily translate into “legitimacy.”

As this expansion of authority continues, it becomes more and more necessary for individual citizens to gain both a knowledge and understanding of what laws say and mean, and also what they mean to their rights and liberty.

The following is the first in a series of articles premised upon the belief that it is through this knowledge and understanding that each of us comes to develop a vested self-interest in our personal rights and those of others, and thereby become more willing to invest our time, effort, and passion in securing their protection. The first steps begin simply enough. Don’t just accept at face value. If you have concerns about how law enforcement authority was handled in a particular situation, check it out. Find a copy of the law. Read it. Go to a lawyer. Ask questions. Keep asking questions!! If you are not convinced as to the propriety of action taken against you, then you must test it in court. If you don’t ask these kinds of questions for yourself, or on behalf of others, chances are they will never get asked. Without asking the questions, illegalities become condoned and the offending actors within the system inspired to repeat their transgressions.

The reality of our current criminal justice system, however, is that it is often difficult to get people to pay attention to the questions. Police get defensive. Prosecutors take on self-righteous postures. Judges, fearful of scrutiny, trade courage and independence for job security. Yet, it is because of this very reality that we must be relentless in continuing to ask the questions. Because the questions were asked, 130 innocent persons have been freed from prisons in the last 15 years, 12 from death row, because of DNA evidence. Such a sobering fact as this should be reason enough to, at least, listen to the questions, yet, curiously enough, the response of many prosecutors now is to push for time limits on the ability of inmates to present such evidence. The State of Florida, for example, is seeking to have a two year time limit imposed, after the appeals period has run its course, within which to present DNA evidence. When one considers that it takes a minimum of about four years just to track down and study transcripts, interview witnesses, and gather the evidence, the wisdom and propriety of, and motivation for, such brief time limits becomes highly suspect, especially when such evidence may well reveal the illegality of the state’s continuing restraint on a person’s liberty. Part of the reality of the system now is that as more questions get asked, so are more obstacles being raised to answering them.

Despite the obstacles, it is through the questioning - through the probing - through an examination and testing of the law - that truth and, with it, justice finally have a chance to be claimed in individual situations. It is through the questioning that there is a much better chance of stopping mistakes from occurring, or if they have, to remedy them.

Police, prosecutors, and judges will start taking notice and paying attention when defenses are mounted aggressively, when well thought out motions are filed and argued, when a defense attorney enters a case with the unwavering determination to go to trial and not plea bargain, when the state’s case and the police officer’s actions are minutely tested, when rulings and verdicts are appealed and reversals obtained, when post-conviction remedies are pursued, e.g., when the questions continue to be asked. Those in authority may not like determination, but will come to respect it.

Now that the reader understands what he’s up against and what is required if one intends to scrutinize closely the laws with which the state seeks to regulate one’s life, it’s time to take a closer look at specific areas of law enforcement authority and what each means to you as a citizen. With such knowledge and understanding, if you are arrested and charged with a crime, you will be in a much better position to defend the charges, assist in your defense, and test the legality of a stop or search.

A citizen’s contact with authority, and with the laws that affect his activities, usually will happen in a commonplace, everyday situation that we all take for granted, such as a traffic stop or, perhaps more commonly now, airport security. Precisely because these events are so ordinary, individuals tend to let their guard down and not be overly concerned about their rights. One typical encounter with law enforcement authority that occurs everyday on state highways is a stop or detention at or near the border. Unsuspecting motorists normally regard border stops as a minor inconvenience, until the unexpected happens and a search of the occupants and/or vehicle takes place, which produces seizure of an item that leads to arrest. It is these frequently-encountered “common” situations that one should treat as seriously as any other contact with law enforcement, where one should have a grasp of the laws and principles at work so that they will understand what exactly is occurring and being asked of them. Accordingly, this article will examine the law of border searches.

I was returning recently from a business trip to El Centro, California, which lies right above the border with Mexico. I was traveling with my bother in a 2002 Mazda Protoge rental car. He was driving. Several pieces of our luggage and clothing occupied the back seat. We were proceeding north to Los Angeles on Highway 86. Approximately 30-50 miles away from the border, there is a border patrol fixed checkpoint. Signs announced the checkpoint and advised all vehicles to stop.

We did so. A border patrol agent approached the driver’s side. This colloquy took place between the officer and my brother:

“Where you fellas coming from?”

“El Centro.”

“Where are you going?”

“Actually up to Mt. Shasta. But we’re going as far as Sacramento tonight.”

“This your car?”

“No, it’s a rental.”

“What do you have in the trunk?”

“Nothing. Luggage.”

“What do you do for a living?”

“He’s a retired judge. I’m a journalist.”

“Okay, you can go. Have a nice day.”

It occurred to me as we drove away that our respective professions probably caused the agent some unease. If another motorist in the same situation did not have such a problematic profession, would he or she have had to undergo more scrutiny and would it have been justified under the law?

The entire stop only took a few minutes and, in that respect, was certainly not intrusive. The officer’s demeanor, however, was intimidating and his tone of voice brusque. I noticed that his visual examination of the car’s interior was concentrated intensely on the rear seat. Perhaps he felt that, with the amount of luggage in the back, our vehicle was too heavily loaded and might contain contraband. Perhaps he felt that a rental car was a common way to transport narcotics. His attitude suggested that he was not satisfied with the response to his question about whether there was anything in the trunk. His further questioning appeared designed to try to develop additional information that would assist him in “getting into” the car and trunk and perhaps search us as well.

The problem with this stop, from my perspective as a retired jurist, occurs with the question, “What do you do for a living?” Up until that point, the stop’s duration and the questioning that accompanied it was routine and constitutionally permissible. However, without relation to some specific, articulable factor to which the officer could point to justify any suspicion or probable cause, this particular question about what we did for a living appears very much out of place. For example, my brother’s and my appearance is dark complected. We do not, however, look Hispanic, which appearance, in a border search context, probably would have justified such a question. Nor would our apparel provide cause for concern. It consisted of casual summer sports wear, clean and ironed, and not inconsistent for our physical appearance or for travelers in the type of a car in which we were riding. We did not display any nervousness. My brother maintained direct eye contact with the officer throughout the questioning.

In short, with this question, the border agent was reaching, looking for something, hoping to get a response that he could use to say, “I’d like you to get out of the car and open the trunk.” What response would have fueled the officer’s suspicions? What profession would not have been to his liking or would have generated distrust? Stockbroker? Mechanic.? Student? Actor? Accountant? Physician? Teacher? If either of us has answered that we were unemployed, would that have provided the catalyst to justify a search? If an Hispanic male with tousled hair and an unkempt appearance had said that he was unemployed, would there be more of a justification for increased suspicion?

These facts and these questions are set forth to demonstrate just how easily a seemingly ordinary encounter with the police has the potential to change, momentarily, into something far more sinister and with significant implications for one’s rights and liberty. And why it’s important to keep asking questions when examining the power which has been wielded by those in authority.

In order to be able to ask the right questions, we look now to the underlying principles of border searches. Contrary to popular belief held by many in law enforcement, a border search is not carte blanche authorization for conducting a search without any limitation whatsoever and the limitations on such a search are not those determined by an officer’s own personal sense of restraint.

SEARCHES AT THE BORDER ITSELF are unlike ordinary searches. They are one of the long-established exceptions to the necessity of warrants and probable cause to conduct a search. In fact, they are not even subject to the lesser standard of reasonable suspicion. Such searches are considered reasonable because the government’s authority at the border is based upon “national self-protection” in requiring one entering the country to identify himself and his belongings and effects as entitled to come in. In addition, a person’s reasonable expectation of privacy is reduced at the border.

But border searches are not exempt from the constitutional standard of reasonableness. Only routine searches are authorized. The Border Patrol is not authorized to conduct any kind of a search in any manner whatsoever.

To conduct a search that goes beyond the routine, a border inspector must have a reasonable suspicion that the person or vehicle to be searched may be carrying contraband. 1 US vs. Molina-Tarazon (2002) 2002 DJDAR 1081

What is considered A ROUTINE SEARCH? A stop involving a brief detention, a response to a brief question or two, possibly production of a document evidencing the right to be in the country, and visual inspection limited to what can be seen without a search are all components of a routine stop that has been held to be consistent with the Fourth Amendment’s prohibition against unreasonable searches and seizures. 2 US vs. Martinez-Fuerte (1976) 428 US 543

FACTORS JUSTIFYING FURTHER DETENTION AND INSPECTION

Some of the factors which the courts have held to justify further inspection of the vehicle and its contents and detention of the occupants following initial questioning have included:

Detection of a strong odor of gasoline coming from the vehicle (with gas tanks having been used to smuggle contraband) US vs. Carranza 2002 DJDAR 4858;

A sole occupant having no registration papers for the vehicle being driven, being “overfriendly” in answering the inspector’s questions, a detector dog “alerting” to a toolbox in the bed of the truck, banging the toolbox on its side without hearing a solid sound US vs. Bravo 2002 DJDAR 7635

A passenger sitting in the rear seat of a Ford Windstar minivan - a vehicle known to be commonly used for drug trafficking; questioning of the driver revealed that the passenger was not a hitchhiker but a relative; while the questioning was taking place , the passenger appeared very nervous, “very stiff and no eye contact”; a density meter scan revealed a very high reading on the driver’s side of the van US vs. Hernandez 2002 DJDAR 14703

In these and other similar factual situations, the degree of intrusiveness was still considered reasonable and the search thus found to be “routine.”

NONROUTINE SEARCHES It has been said that when the degree of intrusiveness reaches that permitted in a strip search, the search has gone beyond the merely routine. Strip searches can only be conducted upon “real suspicion” that illegality is taking place. For a more intrusive cavity search to take place, a border agent must have a “clear indication” to believe criminal activity is occurring. In such searches, the officer must also take the person to be detained not only to a private location, but also one that is medically safe.

In USA vs. Butler 2001 DJDAR 4885, while the border agents conducted an intensive inspection of the Defendant’s car, he was taken to a security office where he was patted down and placed in a holding cell, where his shoes and belt were confiscated. The court held that upon being placed in a holding cell, the Defendant was in custody and Miranda should have been given prior to any additional questioning, whether or not probable cause to arrest had yet developed.

In USA vs. Molina-Tarazon, cited above, the Ninth Circuit Court of Appeals held that dismantling and removal of a gas tank was not a routine search and was illegal without a showing of suspicion of smuggling. The court rejected the premise that a search is routine as long as a search of the person is not involved. The court noted three aspects of the search which rendered it non-routine:

Use of Force - The search required not only the use of tools, but detaching the electrical connections and using a hoist;

Danger - An error in removing, dismantling and reassembling a portion of the fuel tank containing flammable material created a risk of harm to the vehicle’s occupants;

Fear - This type of search creates a psychological intrusiveness where a reasonable driver would become apprehensive about getting back into the car

The holding of the case suggests that where these factors are present, a search may be more closely scrutinized in terms of reasonableness.

CHECKPOINTS REMOVED FROM THE ACTUAL BORDER

Stops which occur close to, but miles away, from the actual border have been upheld as constitutionally permissible, but with a greater degree of limitation placed upon an officer’s authority to conduct a search.

In these situations, an officer may not search either a vehicle or its occupants without either consent or probable cause. United States vs. Ortiz (1975) 422 US 891

Some of the factors which have been relied upon in deciding whether probable cause exists to search include the number of persons in a vehicle; the appearance and behavior of the driver and passengers; their ability to speak English; the responses given to the officer’s questions; the nature of the vehicle and any indications that it may be heavily loaded. In addition, officers are entitled to draw reasonable inferences from these facts in light of their knowledge about the area and their prior experience with aliens and smugglers.

Thus, stops occurring near but not at the border, are treated under a more traditional analysis, borrowing from such principles as the automobile exception to the warrant and the “stop and frisk” doctrine, meaning that the officer must be prepared to make a Fourth Amendment showing detailing specific, articulable facts to support probable cause.

NEW ISSUES AND OPEN QUESTIONS

In Indianapolis vs. Edmond (2000) 531 US 32, the United States Supreme Court put a general curb on police roadblocks by stating that more than a “general interest in crime control,” is required under the Fourth Amendment to justify a stop of a motorist, e.g., some quantum of “individualized suspicion.” However, detection of criminal activity during a stop should pose no problem if there is an otherwise Constitutional basis supporting the roadblock, such as a sobriety checkpoint or intercepting illegal aliens.

The United States Supreme Court will be taking up the question of whether a roadblock can be used for the purposes of looking for possible witnesses to crimes. Illinois vs. Lidster, # 02-1060. It will be interesting to see if the court adopts reasoning similar to Edmond and finds that such investigation efforts comprise general crime control, and that without individualized suspicion, such stops will not pass the requirements of the Fourth Amendment. One of the concerns that has been voiced is that if such stops are upheld, roadblocks “will become a routine part of American life.” Illinois vs. Lidster (2002) 779 NE2d 855

Once again, though, under clearly established principles, it is very likely that, in a border-search context, extending a valid, brief detention for purposes of determining whether the vehicle’s occupants include witnesses to a crime or if they have knowledge of such witnesses, will be found to be constitutionally proper

CONCLUSION

Looking back at the border search in which I was involved, which occurred many miles from the actual border, it’s clear that the officer was unable to advance any special reason for believing that our vehicle contained illegal aliens or contraband and, short of obtaining our consent, would not have been able to legally get into the car or search us. The question, “what do you do for a living?’ was not justified by any set of facts or circumstances available to the officer’s senses. Yet it was asked just the same. In the absence of facts, what prompted the inquiry? A hunch? A hunch about what? Had the questioning ultimately resulted in a search, these questions would have to be asked. Although no search occurred, I continue to ask them. I ask them on your behalf because, next time, it may be you seated behind the wheel.

UPDATES

Since the original publication of this article in The Electric Review last October, both the United States Supreme Court and the Ninth Circuit Court of Appeals have had occasion to address certain issues:

In United States vs. Nava , No. 03-50363, Slip Opinion, 9th Cir., April 8, 2004, the Court held that an individual is not arrested, but merely detained, when, while at the border, he is made to exit his car (and then handcuffed, patted down and forced to wait while that vehicle is searched).

When Mr. Nava’s pick up truck was stopped in "preprimary" - an area where cars are lined up to approach a primary inspection booth - a narcotics detector dog alerted officers to the gas tank of the vehicle. Upon noticing nervousness on Nava’s part in producing his identification and registration, the Inspector asked him to exit the truck. The Inspector testified that he cuffed Nava "for safety reasons...to escort him to the security office...as a consideration for the traveling public...to let them know you are not being arrested." The walk to the security office, which was about 400 feet away from the vehicle, took two or three minutes. Once there the cuffs were removed. Nava was then patted down and his shoes searched. His wallet and keys were taken.

A search of the pickup revealed scratches on the gas tank, indicating some tampering. Tapping on the tank produced a solid sound, indicating that something was inside the tank. A mechanic was called to remove the tank and 23.20 kilos of marijuana were found inside. Nava was placed under arrest, read his Miranda rights and confessed that he knew there were drugs in the gas tank.

The time sequence was as follows: (1) Nava stopped at 8:50 PM and escorted to security office; (2) Vehicle inspection occurs at 9:00 PM; (3) Mechanic called at 9:30 PM; (4) Gas tank removed at 11:00 PM; and (5) Nava arrested at 3:05 am.

Nava moved to suppress the post-arrest confession and the drugs which was denied. On appeal, the denial of the motion was affirmed. Two grounds of appeal were discussed.

It’s interesting to note that, at the trial court level, the court found that the search of Nava’s vehicle became "nonroutine" when removal of the gas tank was sought, but justified by probable cause based on the information known to the agent who was conducting the search.

On appeal, the Ninth Circuit found no need to deal with the "nonroutine" aspects of the search since it only now had to refer to the recent US Supreme Court case cited below, United States vs. Flores-Montano, to justify a suspicionless inspection at the border which included the authority to remove and disassemble the fuel tank.

Since the handcuffing was temporary and done for safety reasons, the Court found that degree of restraint reasonable and further found it reasonable for Nava to be asked to remain in the cell until the vehicle search was completed, and that this was merely a detention, not rising to the level of an arrest. Once the marijuana was discovered, then probable cause attached for the defendant’s arrest.

In evaluating the soundness of this conclusion, it’s important for the reader to note that the basic difference between a detention and arrest is in a person’s belief as to whether he is free to leave the particular police-citizen encounter.

The Court based its decision on reasoning from several earlier cases with similar factual settings, but with important distinctions. In Nava’s case, unlike the precedents cited by the Court, he was not told that if the officers did not find anything he would be free to leave. He was not explicitly told that the handcuffing was temporary. The Court merely stated that these differences do not warrant a different result. Very significantly, his identification and keys were taken away from him, and he was kept waiting from 8:50 PM to 3:05 am. The court made no reference to these factors at all.

Yet, it is difficult to imagine a more compelling situation than having your keys and identification taken away, being patted down and having your shoes searched while you are forced to wait for 6 hours (all this preceded by being momentarily placed in handcuffs as you watch law officers search your vehicle). Thrust into this ordeal, would any person actually believe that he was free to leave and not under a substantial degree of restraint? Still, this is just what the Court’s conclusion asks us, as citizens to which the ruling now applies, to accept.

Nava cited a number of cases in his appeal which stand for the notion that an effective seizure by the police amounts to an arrest requiring probable cause. The court dismissed the significance of this line of cases by stating that none took place at the border, where different rules apply. However, the court neglected to discuss the case of United States vs. Butler, cited and discussed in my original article - a border case - wherein the Court held that when a person was taken to a security office, patted down, placed in a holding cell, and had his shoes and belt confiscated, he was effectively in custody for Miranda purposes, whether or not probable cause to arrest had yet developed. - in other words, the degree of restraint is so serious that the situation should be treated as the equivalent of a full blown arrest.

If such restraint is consistent with a custody setting to require Miranda rights to be given prior to any questioning, it remains equally so in the Nava case. Since Miranda wasn’t an issue, however, in the Nava case, the issue becomes much simpler. If it was a custody situation, it amounts to an arrest, and probable cause is required to justify it.

Since there was no probable cause given in the facts to justify this arrest, the post-arrest confession and the drugs should be excluded as fruits of an illegal arrest.

What I am compelled to conclude from reviewing the Court’s opinion is that it most likely decided the result it wanted to reach, and then looked for a way to "legally" make it work, much like Scalia and company did in 2000 with Bush vs. Gore. Probably what was troublesome was the amount of marijuana involved. Such an amount might be too difficult to overlook, too risky to ignore by a more forthright analysis of the legal principles involved. Interesting, this coming from a court that, more often than not, seems inclined to not allow controversy to deter it from doing its job.

The basis for my conclusion is found in a footnote in the court’s opinion:

I believe both the prosecution and the court understood the weakness of the detention argument, and sought to provide a buffer of some kind. However, this additional ground appears equally unconvincing and unpersuasive to support the decision of the court. The dog alert was part of what aroused the Inspector’s suspicion that led to his initial encounter with Nava. Under applicable federal law, the animal’s training and certification records must be turned over to defense counsel. In footnote 1, it is noted that defense counsel argued that the dog evidence may not properly be considered because he was provided only with "what amounts to a few lines on a certification of this dog at a date in the past." The court, in the same footnote, stated, "It is not clear from the record (my emphasis) before us precisely what was disclosed by the government as part of its dog discovery." Without a clear, complete record before it, the court appears to have made an implied finding of sorts that defense counsel received the information to which it was entitled. Yet, without a sufficiently clear record before it, there would not have been sufficient evidence for the court to find that the dog alert constituted a sufficient probable cause nexus between Nava and the drugs.

Consequently, until the "gap" in the record can be plugged, there is an intellectually disingenuous basis for the court to conclude that intervening probable cause existed. Without it, the Court is left where it began, with a custody-arrest situation for which no probable cause existed to support, and from which the evidence used against Nava stemmed.

Perhaps the most perplexing and deceitful part of the court’s opinion is found in its opening words, "Today we once again hold that an individual is not arrested but merely detained..." For the court seems to be intentionally disregarding substantial and significant factors in the case that truly distinguish it from past cases, and seems ready to hide its deceit by consigning this case to a dust bin of precedent to which it does not belong.

In United States vs. Bennett, 9th Circuit, No. 02-50442, Slip Opinion, April 9, 2004, it’s interesting that the advance sheet case summary which described this case didn’t mention the border-search aspects of the decision. Instead, it focused only on the "best evidence" issue related to testimony about a global positioning device aboard the subject boat. However, the border-search issue is still worthy of an extended analysis.

In this case, Mr. Bennett’s boat was searched by members of a joint task force targeting smuggling activity from Mexico into Southern California. Coronado Police Officer James, positioned on Point Loma, a peninsula that juts out into the Pacific Ocean from the San Diego area, spotted Mr. Bennett’s boat near the U.S.-Mexico border on January 27, 2000. The boat was heading north, traveling quickly, and hugging the coastline. James spotted the boat using high grade binoculars, but never actually saw the boat cross the border. Rather, he first spotted the boat south of the Imperial Beach pier, north of the border. James notified other members of the task force who boarded the boat near the entrance to San Diego Bay. Officer Sena of the U.S Coast Guard intended to ensure compliance with federal regulations. When Sena discovered (1) that the boat registration number on the paperwork did not match the number on the boat, and (2) an outstanding state arrest warrant for Bennett, he directed Bennett to dock his boat.

While enroute to the police dock, Sena noticed some additional peculiarities on Bennett’s boat. The boat was riding so low in the water that its swim platform was submerged. Sena also observed a new high performance engine and some spatial disparity which could not be accounted for.

After the docking, members of the task force spent several hours looking for drugs aboard the boat. They drilled three or four holes in the boat, but turned up nothing. The boat was stored overnight and the next day was hauled to a Coast Guard facility and x-rayed. The x-ray revealed what turned out to be 1,541.5 pounds of marijuana.

Bennett’s resulting conviction for importation of marijuana was eventually overturned for improperly admitted testimony at trial concerning the global positioning device. The Court, however, did uphold application of the border-search doctrine on the facts of the case.

Since the entrance to San Diego Bay is in U.S. territorial waters, the Court held that the search of the boat occurred at the functional equivalent of the border, allowing it broad authority to conduct searches, but only if its agents are reasonably certain that a vessel and its contraband have crossed the border. Citing precedent holding that absolute certainty is not required, the Court found that Officer James’ observations of Bennett’s boat hugging the coastline and traveling north generally from the direction of Mexico, from his vantage point, was enough to create reasonable certainty and "firm belief" that the boat had come from Mexico, justifying application of the border-search doctrine.

ANALYSIS

 The Court seems too quick to conclude that Bennett’s boat had come from Mexico. Without an actual observation that the boat had, in fact, crossed the border the Officer’s vantage point (even coupled with his subjective hunches based on his background and experience) does not add anything other than the boat was traveling north from the general direction of Mexico. Applying an established concept of search and seizure law, e.g., is the activity consistent with innocent activity? - one would have to conclude that the boat, just as easily, could have simply been traveling close to the border but not coming from Mexico. To this reader, the Officer’s observation appears extremely weak and insufficient to rise to the level of "reasonable certainty" to support use of the border-search doctrine.

The Court next considered the question of whether the border-search doctrine justified the search the officers conducted.

An extended border search, occurring well after an actual entry, intrudes more on an individual’s normal expectation of privacy, and therefore requires reasonable suspicion.

Further, after the recent United States Supreme Court decision in United States vs. Flores-Montano, cited above, especially destructive searches of property may also require reasonable suspicion.

ANALYSIS

 In Bennett’s case, after locating no drugs on board after several hours of searching and drilling holes, the boat was stored overnight. Since the x-raying, which occurred the following day and which ultimately revealed the marijuana, happened many hours after entry, the border search becomes unduly extended and prolonged, creating a restored expectation of privacy on Bennett’s part. At the time of the x-raying, there had been nothing new added to the unproductive searching of the night before which added to the quantum of reasonable suspicion. Furthermore, the drilling of three to four holes appears especially destructive under Flores-Montano. There is nothing in the facts to demonstrate a reasonable suspicion to support such destructive activity.

Yet, the Ninth Circuit cleverly steers around these impediments by stating that it does not even have to reach them because Officer Sena’s observations of the "disparity and spatial confirmation and configuration of the vessel" and the inconsistent registration papers created reasonable suspicion by themselves, and therefore the search of the boat was, in fact, supported by reasonable suspicion.

The problem with the Court’s analysis is that all of those observations were made while the boat was enroute to docking. Even after they were made, multiple searches were conducted which uncovered nothing. Thus, if the observations constituted reasonable suspicion to search, they might conceivably support the searches which were, in fact, made close enough in time to when the Officer made them. However, those observations do not support the searches conducted the following day. At that time, there were still no additional facts added to these previous observations that justified either the prolonged search or the drilling of the holes. The Court has simply bootstrapped these prior observations to justify a search that, in effect, appears tainted from its inception.

Other note-worthy cases include:

Illinois vs. Lidster 2004 DJDAR 352, decided January 13, 2004, in which the Court held that the Fourth Amendment was not violated by the use of roadblocks for the purpose of eliciting help from the public in obtaining information about crimes committed by others. The Court distinguished its previous decision in Indianapolis vs. Edmond (2000) 531 US 32 by noting that the checkpoint in that case was designed to ferret out drug crimes committed by the motorists themselves - that the issue of an information-seeking stop was not then before the Court. In judging the reasonableness and, hence, the constitutionality of the checkpoint stop in Lidster, the Court found that the public concern was grave as the police were investigating a crime that had resulted in a death. More importantly, the Court found that the stops interfered only minimally with a motorist’s liberty of the sort the Fourth Amendment seeks to protect.

The majority opinion was penned by Justice Breyer and joined by Justices Rehnquist, O’Connor, Scalia, Kennedy and Thomas. Justices Stevens, Souter, and Ginsburg joined only in Parts I and II of the Opinion. As to Part III, dealing with the reasonableness issue, Justice Stevens wrote a dissenting opinion in which Souter and Ginsburg joined.

The dissenters felt that the issue of reasonableness was a closer one than suggested by the majority: "In contrast to pedestrians, who are free to keep walking when they encounter police officers handing out flyers seeking information, motorists who confront a roadblock are required to stop, and to remain stopped for as long as the officers choose to detain them. Such a seizure may seem relatively innocuous to some, but annoying to others who are forced to wait for several minutes when the line of cars is lengthened...Still other drivers may find an unpublicized roadblock at midnight on a Saturday night somewhat alarming. On the other side of the question, the likelihood that questioning a random sampling of drivers will yield useful information about a hit-and-run accident that occurred a week earlier is speculative at best...There is no evidence in the record that they (the police) had reason to believe that a roadblock would be more effective than, say, placing flyers on the employees’ cars."

Perhaps most significantly, the dissent felt that the Court had abandoned its role as a court of review and had decided the reasonableness issue "in the first instance" when those issues had not been fully resolved in the lower state courts. The Illinois courts had only addressed the per se constitutionality of the roadblock under Indianapolis vs. Edmond. The constitutional inquiry required analysis of local conditions and practices more familiar to the local judges, and the United States Supreme Court’s action, in effect, prevented this from occurring.

An interesting question left for us to ponder is what motivated the Court’s majority to assume such an activist approach on this particular issue, and its possible continuing implications to us as citizens on the receiving end of such police action.

In the case of United States vs. Flores-Montano, decided March 30, 2004, Chief Justice Rehnquist delivered the opinion of a unanimous court, in holding that the removal and disassembling of a car’s fuel tank did not require reasonable suspicion, reversing the Ninth Circuit’s affirming of a District Court’s granting of a motion to suppress the drugs recovered from the tank.

The Court took elaborate pains to distinguish the case of United States vs. Molina-Tarazon, discussed in my original article, by stating that the "routine" balancing test used in that case, and extended to vehicles, was, in effect, incorrectly applied - that the reasons that might support a reasonable suspicion requirement in the case of highly intrusive searches of persons simply does not carry over to vehicles. Complex balancing tests to determine what is a "routine" vehicle search, as opposed to a more "intrusive" search of a person, have no place in border searches of cars. The Government’s interest in preventing the entry of unwanted persons and effects is paramount at borders.

Further, the Court stated that any privacy interest that a motorist might have in his fuel tank is lessened at the border than it would be in the interior. While acknowledging that the Fourth Amendment "protects property as well as privacy", the Court went on to state that interference with a motorist’s possessory interest in his fuel tank is justified by the Government’s paramount interest in protecting the border.

The bottom line of the case’s holding: The Government’s authority to conduct suspicionless inspections at the border now includes the authority to remove, disassemble, and reassemble a vehicle’s fuel tank.

The writer invites the readers to read both cases and then compare which reasoning appears the more cogent. The Ninth Circuit is generally perceived in legal and political circles to be consistently liberal and also has the distinction of being the most reversed court by the high court. Given that, one must wonder as to the real motivations of the United States Supreme Court consistently knocking out rulings that afford a maximum amount of protection to individual rights in favor of lessened protection. Is the legal reasoning of the opinions so consistently unsound or is the action of the Supremes so consistently political?

In the decision, the Court seemed to leave open one area of possible increased scrutiny and, hence, protection for the individual. It stated, "While it may be true that some searches of property are so destructive as to require a different result, this was not one of them." For myself, it is difficult to imagine why the removal and disassembling of a car’s fuel tank is not considered per se destructive.

Keep in mind that, in the wake of this decision, every motorist is now subject to such  degrees of intrusion at the border - and without any showing of suspicion. Given this, how much safer do you feel today in being a citizen of these states?  ~Paul J. Aiello

 Paul J. Aiello is a retired judge of the Siskiyou Municipal Court. In addition to serving as a mediator, arbitrator and private judge, he also serves as a sentencing consultant and assists individuals with clearing and expunging their criminal convictions.

 “The Road To Jail Is Paved With Good Intentions” © Paul J. Aiello. 2003 & 2004. All rights reserved. Paul J. Aiello & The Electric Review. 

ON THE LAW

JUSTICE: A CRISIS IN PERSPECTIVE

Reflections From A Former Probation Officer

By Steve Ellingson

I.

It's my belief that certain personality types are attracted to police work. As for myself, I was in the business of being a probation officer for twenty-two years. It took that long for me to understand that I didn't really fit into the system. My original goal as a probation officer was to be in a position to help people make a better life for themselves. What I found was that the probation environment was surrogate law enforcement. While some people were interested in helping others, the dominant feature seemed to be controlling people. For years, I struggled against the idea that people needed to be controlled to such a degree. Further, the intense satisfaction that many probation officers expressed, in being the one in control, seemed to be directly related to certain aggressive personality traits as well as those officers' particular backgrounds and experiences. When people like me find that they don't fit in, we have no choice but to, sooner or later, move on. I've never characterized this as failure, or even futility, but rather as growth and enlightenment, allowing me now my own unique perspective on justice...

II.

The criminal justice system would actually function pretty well, except for one thing - the people working in it. The promotion of justice and truth, as the ultimate common goal of every participant in the system, has created a "crisis of perspective," with the answer as to whether justice has been achieved in any given case, entirely dependent on one's particular focus and interpretation of the law. For example, prosecutors have pursued people so doggedly that they refuse to accept any other version of the facts with the potential for truth. Their blindness to reality rejects the truthfulness of a witness proffered by the defense because he has a prior felony conviction and is thus unreliable. But place that same person on the other side of the fence, with information beneficial to the prose- cution, and their credibility is warmly embraced. Since the evidence is now offered by the state, there is more trustworthiness to it. And prosecution witnesses, of course, never lie, never make mistakes, and always have motives that are beyond reproach...

III.

I am constantly amazed at how little police officers understand a basic tenet of competent law enforcement work:

To spend an equal amount of time investigating a person's innocence, as they spend investigating his guilt.

To do this means being unwilling to accept a conclusion at face value, no matter how likely it seems. It requires that additional time be spent determining if exculpatory evidence exists, locating and interviewing witnesses that may exonerate a suspect, and supplementing investigations already conducted. The standard police response is to refuse to acknowledge or otherwise validate this philosophy. Yet, logic (let alone justice) dictates that it be done, if for no other reason than to eliminate possible defenses and thereby make the prosecutorial case that much stronger.

Too often, both the police and the prosecutors settle upon the titillating features of an investigation and go no further. As a reflex, they automatically equate these with guilt, without bothering to confirm the factual accuracy of the information. One of my defense investigations as a private investigator involved prosecutorial allegations of lewd and lascivious conduct against a sixteen year old boy by a homosexual adult who had AIDS. In short, those two facts were all that the police needed to know. They had their man. A repulsive crime had been committed. Get the right kind of jury - morally outraged at the defendant's lifestyle choices yet still anxious to hear the salacious tidbits of the story - and a conviction is assured.

However, my own investigation developed significant information - never bothered to be checked into by either the police or the district attorney - and confirmed by a number of other local witnesses - that showed the prosecution theory of illegal sexual conduct to be absolutely incorrect. Had I not brought this to their attention by, in effect, doing the work they should have done in the first place, a horrible mistake and grave injustice would have occurred. Contrary to popular belief, the government is not always right. Why didn't the police do their job? Probably because the defendant was gay. And if he was gay, in certain people's minds, then he couldn't possibly be innocent.

Despite such a "near miss" as described above, police and prosecutors still eschew performing a more thorough investigation once they believe the crime is solved. Yet, that resolution often goes no further than the extent of their prejudices. One can only speculate how many persons might have been spared a jail or prison sentence had more officers done their jobs better. District Attorneys can file charges against individuals for virtually anything they want. If they simply have a report claiming something has been done, they can file a complaint alleging criminal conduct, with little or no investigation, whether the alleged conduct is real or not. Simply making the allegation changes a person's life. The accusation is automatically equated with guilt. Facts get in the way of what people want to believe happened. The accused becomes "marked", regardless of whether (s)he is ultimately acquitted. Reputations and lives are forever altered. That's why it's absolutely critical that a thorough investigation be done before charges are filed - not based solely on a single report or one victim's statement, or a police officer's hunch, or a prosecutor's personal sense of outrage or morality.

IV.

Whether the principle actors within the criminal justice system (judges, prosecutors, probation officers) choose to admit it or not, they are directly responsible for the system itself creating criminality, making unnecessary enemies, and fostering a visceral contempt for its processes. Consider, for example, the common practice of "overcharging" (a device whereby prosecutors charge multiple offenses to build a case up, beyond what it is actually worth, in an effort to force a defendant to plead to one or more of them - and thereby gain a quick conviction; the reasoning is that fear will motivate an accused to admit guilt to "some" of the charges rather than risk conviction on "all" of them). Many times this overcharging occurs after a defendant steadfastly maintains his/her innocence to the original charge and elects to pursue a jury trial.

Such knee-jerk reactions by prosecutors amount to outrageously unprofessional petty bullying ("You want a trial, huh? Okay, I'll show you!") The overcharging results in "punishment" for a citizen (presumed innocent under our system of jurisprudence) exercising a fundamental Constitutional right. It is unlikely that the role of prosecutor was ever envisioned to include undermining such legal safeguards as the guarantee of the right to a trial.

Suddenly confronted with additional charges, many wholly innocent people give up because of the costs associated with defending the case, the increased risk of conviction of multiple offenses, or simply to get the matter over with so that they can get on with their lives. The price, however, for getting on with life becomes another "notch" for the District Attorney, and a criminal record for the defendant that can carry a lifetime of penalties, including a tarnished reputation and reduced employment opportunities.

There is something fundamentally wrong with a system that perpetuates such injustices. What remains are the bitter feelings and reactions triggered by this treatment - people convinced that, in this society, we live at the mercy of those that have a badge and the power that goes with it.

V.

The system is not interested in finding ways to create a win-win situation for everyone involved in the criminal justice process - the victim, defendant, or society. The name of this particular game is political accountability. It's all about power, looking good politically, and appearing to be tough on crime. Yet, the persistence of this insensitivity to the human imperatives is creating a backlash of sorts. Increasingly, the American public - that is to say, average law-abiding citizens - are becoming disenchanted with how law enforcement and the courts are doing their job. The system has gained a reputation of not caring about the people it is charged with supervising. They are tired and frustrated of people cloaked with the responsibility and authority of upholding the law, in fact violating it time and time again; of making decisions based on political expediencies or upon obscure rationales that simply have nothing to do with either the best interests of society or the defendant.

Recently, I spoke to a mother whose son was on probation in the State of Oregon for two convictions of driving under the influence. He wanted help. He was tired of being an alcoholic. His parents gladly assisted him in getting that help, and arranged to place him in the Betty Ford Clinic in Rancho Mirage, California. Known as the premiere alcohol rehabilitation center in the country, it has the highest success rate of which I am aware. The State of Oregon, however, would not give permission for the young man to leave the state in order to attend the clinic. The parents did it anyway. Their son successfully completed the treatment. When he returned to Oregon, he was immediately arrested, charged with violating his probation. This appears to be an unreasonable and asinine response to someone taking responsibility for his life. Yet, it happens time and time again.

VI.

You always hear about the outrage of victims, upset with what a particular judge has or has not done. By and large, however, you do not hear about the other people that can be torn apart by the system - how defendants and families are permanently and inexorably affected by what a cop, judge, or prosecutor did with their lives. It isn't that individuals shouldn't be held responsible for their actions. That's part of growth. Part of enlightenment. Part of spirituality. But ultimately, it's about how we accomplish that. It is possible to encourage offenders to buy into the principle of accountability. Because of the way that the system is structured, however, - with mandated prison sentences, for example - people now end up going to prison who simply don't need to be there. The interests of political accountability have been served. Justice has not.

VII.

Police officers as well as prosecutors don't seem to believe that a defendant's feelings count, or, for that matter, those of their shattered families. The commission of a crime does not diminish a person's humanity. It doesn't minimize the right to be treated with dignity or respect. The only time that this seems to sink into the law enforcement mentality is when the tables are turned. When an officer himself, or a member of his family, or the family member of a prosecutor is charged with a crime and must sit in the defendant's chair. In those instances, defense attorneys suddenly become warriors instead of scum; the meticulous scrutiny and protection of each legal right to which an accused is entitled no longer becomes a smokescreen to hide behind or a waste of time and money, but rather a necessary activity in order to assure that justice is done.

Selective prosecutions or selective extension of respect and dignity, based on the particular person who happens to be sitting in the defendant's chair, (the cop's kid made a mistake; the other guy broke the law), accomplishes little except increased contempt for the system and the people in it. The solution, as I see it, is to treat everyone in the same way, with the same quotient of consideration and the same values that enrich us all as human beings - as if we were all one family. And indeed we are, in more ways than we can possibly imagine. We share the same goals, aspirations, and life experiences. We share the same fears. We have the same dreams for our children. We also share the same feelings. All of us need to try to place ourselves in the shoes of a defendant, and imagine what it must feel like, and how we would like to be treated, and the burden, loss, and shame of enduring a harsh punishment.

Assuming my theory is correct - that we are all bound together as a family - then unfortunately, with the present way in which the system is administered, the only logical conclusion that can be reached is that we are a damaged and dysfunctional family. In addition to exercising sound discretion (instead of abusive) and good judgment, the system needs to show heart. Critics will undoubtedly see this as a sign of weakness and not a proper function of an effective criminal justice system. Yet, heart & strength, rehabilitation & retribution and judgment & mercy do not have to remain mutually exclusive goals, but can co-exist, balanced equally upon the scales of justice.

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 Steve Ellingson is a former Probation Officer from Siskiyou County, in Northern California; he now maintains a private practice as an investigator and sentencing consultant. Ellingson can be reached via The Electric Review.

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