Thursday, January 23, 2014

Why Privacy Rights Still Matter

Disclosures regarding the NSA's secret spying program have recently raised some debate in the United States over privacy rights and their limits.  How much government intrusion is too much and how should we balance the state's legitimate "need to know" against an individual's reasonable expectations of privacy?

The Fourth Amendment to the US Constitution assures our right to be free from unreasonable searches and seizures.  Critics of the Fourth Amendment often claim that it only protects the guilty.  "If you aren't doing anything illegal, then what do you have to hide?", they ask.  There are lots of compelling responses to this stupid question, but perhaps the best defense of the Fourth Amendment was recently illustrated by the case of a New Mexico man named David Eckert.

Eckert was pulled over by police for failing to make a complete stop at a sign as he pulled out of a Walmart parking lot.  An officer noticed that Mr. Eckert appeared to be clenching his buttocks. Clenched butt cheeks can only mean one thing, police reasoned: Eckert must be transporting marijuana inside his rectum (because that's where people keep it?).  This was the "probable cause" that cops cited in obtaining a warrant to perform a 14-hour-long series of invasive cavity searches on their suspect.  

Police transported Eckert to an area hospital for exams.  Doctors initially refused to perform the requested procedures, citing medical ethics.  Officers then took Eckert to the Gila Regional Medical Center, where other doctors apparently had no such ethical objections.  

First, doctors performed x-rays of Eckert's lower abdomen.  No contraband was located.  

Then, doctors probed Eckert's anus with their fingers.  No contraband was found.  

Then, just to be safe, doctors probed Eckert's anus again with their fingers.  Still no contraband.  

Next, Eckert was subjected to an involuntary enema.  He was forced to defecate in front of doctors and police.  Police searched his stool for signs of contraband, but none was found.  

After that, doctors forcibly inserted an enema into Mr. Eckert's anus a second time.  Again, he was made to defecate in front of the doctors and police.  Again, no contraband was found.  

Can you guess what happened after that?  If you guessed "Eckert was forcibly subjected to a third enema", you're right!  Still no contraband.  

Now, after spending the better part of their afternoon elbow-deep in Mr. Eckert's colon, lesser doctors might have reasonably concluded that their patient was not hiding any contraband, at least not inside his rectum.  But these guys didn't get to be doctors by quitting when the going got tough. 

Mr. Eckert was then subjected to another x-ray of his abdomen.  Still no contraband.  

Finally, Eckert was prepared for surgery and sedated.  Doctors performed an involuntary colonoscopy to inspect the lower portion of his digestive tract.  No contraband was ever located.  

Mr. Eckert's only crime was failing to make a complete stop at a sign.  Police, acting on no more than a hunch, were able to obtain a warrant from a judge, authorizing a series of highly invasive "medical procedures", supposedly justified by some serious risk to public safety (suspected possession of marijuana).  Just imagine how police might have treated Eckert if he were suspected of something that was actually dangerous.

Some people will say that this type of government intrusion is making us safer by reducing the risk of a terrorist attack.  I'd rather take my chances.

If you or a loved one have questions about invasive police searches and your constitutional right to privacy, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Criminal Defense Lawyer 

Thursday, January 9, 2014

A Plea for Restraint

Attorneys finished presenting their closing arguments in the Kelly Thomas murder trial this morning.  Manuel "Manny Man" Ramos and Jay Cicinelli are each charged in the beating death of the 135-pound homeless man in Fullerton.  Ramos is accused of murder and manslaughter.  Cicinelli is accused of manslaughter and using excessive force.

The fates of both defendants are now in the hands of the jury.  Deliberations are likely to take several days.

It's hard to believe that 2 1/2 years have elapsed since Kelly's death.  In that time, Kelly's Army has shaken the bases of power in Fullerton, California.  Sustained protests forced Fullerton's Chief of Police to resign, 3 city council members were recalled from office, a grand jury indicted 3 police officers for their roles in the beating, the public image of the FPD was irreparably tarnished as this scandal shed light on the culture of corruption within its ranks, and the District Attorney took the unprecedented action of filing murder charges against an on-duty cop.

As this story nears its culmination, I wanted to take a moment to urge Kelly's Army to exercise restraint, however the jury rules.  Of course, any rational human with a heart and half a brain is crossing his fingers for convictions.  Convictions are the only way to start the process of closure for the Thomas family and for all the citizens of Fullerton.  Guilty verdicts are going to be necessary first steps toward rebuilding our trust in the FPD, protecting our most vulnerable and ensuring that this type of official abuse never happens again.

If the jury votes to convict, I want to urge Kelly's Army to restrain their celebrations.  Guilty verdicts will be a fitting conclusion to this story.  They'll represent the justice that we've all been screaming for since the story broke.  But celebrations still don't feel appropriate.  Kelly is still gone and the damage is still done.  Please show respect for the Thomas family by curtailing inappropriate celebration if the jury votes to convict.

Similarly, if the jury votes to acquit, I want to urge Kelly's Army to direct their anger towards the ones who were responsible and not elsewhere.  Out-of-town instigators should stay home and smash their own windows.