On January 23, 2012, the United States Supreme Court decided what had been widely heralded as the most important 4th Amendment search and seizure case in a generation. 

In United States v. Jones, the federal government took the position that it could install a GPS tracking device on any person's car, for any reason or no reason at all, and track the car's movements for weeks without getting a warrant.  (In Jones, the government used the GPS tracking data to support a prosecution for drug trafficking).

There was a moment at oral argument either amusing or horrifying depending on your outlook, when Chief Justice Roberts, among the most conservative and "law and order" judges the Court has seen, expressed apparent astonishment that the Executive Branch was taking the position that it could even install such a device on Justice Roberts' vehicle without a warrant!

Perhaps it is not surprising after this exchange, that all 9 justices unanimously rejected the government's "big brother" position and held that the federal agents violated Mr. Jones's rights by installing the GPS tracking device on his car and tracking his movements without a valid warrant. 

More sobering, however, is that the Court broke down into factions with 4 of the Justices adhering to a 17th and 18th century property law analysis of the issue - fixating on the actual "trespass" to Jones's vehicle that occurred when police attached a device to its undercarriage.  Interestingly, Bush II appointee Justice Alito, usually marching in lockstep with the most "originalist" justices on the Court, joined the more moderate justices and in fact wrote the concurring opinion that criticized the Court for anchoring our privacy rights to ancient property law constructs. 

As technology continues to progress, and especially as the nature of modern technology forces us to share virtually all of our most private information with soulless corporate and governmental institutions, our privacy will be irretrievably lost if the Constitution is interpreted in a strained and antiquated fashion to apply only to the tangible, material physical property in our possession and immediate control. 

Every time we connect to a network, place our correspondence and address books and calendars and documents and photos and home videos on Google or other "cloud" applications, back up to online backup services, place a call, text or email message, our most personal information leaves our "possession" and is entrusted to storage and safekeeping by third parties.  In other words, the government can learn the most intimate details about our lives, without setting so much as a foot or a fingerprint on any of our private property.

Thus, Justice Sotomayor revealed herself to be the Court's true guardian of privacy rights in the internet age by writing a separate opinion that embraced the 4th Amendment as safeguarding both property rights AND suggested the expansion of the "reasonable expectation of privacy" construct.  She wrote: "More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties."  In other words, just because Facebook possesses and sees an otherwise private message that we send to another, doesn't mean that the government should get to see it too.

The bottom line is this:  a majority of the Justices on the Court declined to make a broader announcement that we as Americans have a "reasonable expectation of privacy" that the government will not trace our movements for a month without judicial authorization.  Thus, the Jones decision, while reaching the right outcome,  will not curb the government's zeal to use 21st century technologies to render our sense of privacy and security nothing more than an archaic illusion.

Read the Jones decision
 
- Ted Lothstein

In 2011, Lothstein Law Office moved to the next level in law office technology.  The results have been a dramatic improvement in my ability to manage complex cases, work on cases seamlessly inside and outside the office, and give audio-visual presentations in the courtroom and classroom. 

The most dramatic transformation has come from the smallest but most powerful of law practice tools, the Ipad 2.  With my Ipad 2, I am able to immediately and securely access, view and annotate discovery and other case materials everywhere I go — in the courtroom, at administrative license suspension hearings, while traveling, and at home.  PDF Expert lets me view and annotate lengthy, complex documents that I have extensively bookmarked and indexed using Adobe Acrobat.  When discovery or other documents come into the office, my legal secretary Schelle simply scans it and drags it to a particular folder, and then I can instantly see it on my Ipad where I go.

Today, during an administrative license suspension hearing, I viewed the arresting officer's report on my Ipad 2 while making notes on a traditional yellowpad.  In the class I teach at Plymouth State, I have used the Ipad 2 to display audio-visual presentations on the Smartboard to a room full of students.  I have met in the office with DWI clients, put the Ipad 2 on the table in front of us running Google Earth, and then "virtually" traveled the roads that led to the scene of the motor vehicle stop or accident.

The first big investment I made in 2011 was to install a HP Proliant server with mirrored 500 gig hard drives, running PC Law as the platform to run my business, handle billing and manage my caseload and clients.  I use Lexis Nexis Casemap 9, an advanced relational database, to build easily searchable databases and chronologies of the facts, documents, transcripts and cast of characters involved in complex litigation such as federal criminal cases and a post-conviction litigation I am handling arising out of a homicide conviction.  For legal research, I began subscrion Westlaw Next, which runs on the PC but also has a fantastic Ipad app. 

One of the best and most important technological tools in my law office is nearly free.  My legal secretary Schelle and I heavily depend on Google Calendar, which allows us to view multiple calendars on our PCs, and on my Ipad 2 and android phone.  On Google Calendar, if I put an appointment into the office calendar, she sees it immediately.  If I put an appointment into my personal calender, she sees only a blocked out period marked "Busy," but the details appear on my PC or portable devices.  If my wife or I put an event into our family calender, it does not appear on the office calendar at all.  And Google Calendar automatically posts to MY calendar the entire Red Sox, Patriots and Duke Basketball schedules!  (Yes, Google Calendar is non-denominational - you can select the Yankees and UNC Tarheels instead).  Google calendar is free for personal use and only $50/year for business use. 

Is a man's home his castle?  Traditional Fourth Amendment jurisprudence says yes - the police may not enter your home without a warrant.  An exception to that rule, however, the "Exigent Circumstances" exception, has steadily eroded the rule when it comes to people using drugs - a victimless crime - in their own homes.

Today, May 16, 2011, the Court further eroded that fundamental principle when it ruled that Kentucky Police acted properly when they stood outside an apartment door, smelled marijuana, banged on the door, heard movement inside... and then smashed the door down without a search warrant and arrested the people inside.  The defendant, King, got an ELEVEN YEAR prison sentence based on the drugs found in the apartment.  Kentucky v. King, No. 09-1272, United States Supreme Court (decided May 16, 2011).  Read the Court's Opinion. 

In making this decision, the Court reversed a decision of the Kentucky Supreme Court, which would have required the police to obtain a search warrant. 

Justice Ginsburg, in dissent, lamented the continuing slow death of the Fourth Amendment by reminding us of its vitality in an earlier age.   She aptly summarized today's decision by writing: "The Court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases." 

Then, she quoted a 1961 Supreme Court precedent, Silverman v. United States, as follows: "At the Fourth Amendment's very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion." 

That may be true for businesspeople, white collar criminals and the like.  That "core" has turned hollow, however, for those accused of drug crimes.  

(c) May, 2011 Theodore Lothstein

04/27/2009.  NH Supreme Court upholds Due Process right in DWI investigations.

Today the Court held that police must capture and preserve additional breath samples when administering breath tests at the police station, for later analysis by an independent laboratory at the accused's own expense.

Without captured breath samples, the Intoxilyzer 5000 is nothing but a "black box" - we don't know how it's software works, we don't know the extent to which it can be trusted to screen out "interferent" compounds that are misidentified as alcohol on the breath, and we don't know when it has malfunctioned and produced a misleading and erroneous result.

For decades, the legislature and courts have required that police preserve a captured breath sample for analysis by a much more sophisticated gas chromatograph instrument, but in 2010, the legislature sought to eliminate that fundamental safeguard for the falsely accused.

That's why Ted Lothstein, and friends and fellow DWI lawyers John Durkin and Mark Stevens agreed to co-author an Amicus ("friend of the court") brief on behalf of the New Hampshire Association of Criminal Defense Lawyers (NHACDL).  The brief opposed a pending Bill that would eliminate the requirement of captured breath samples in DWI investigations.  David Rothstein, on behalf of the Appellate Defender Program, also submitted a brief in opposition to the proposed law.

On April 27, the NH Supreme Court rejected the position of the Department of Safety, House Criminal Justice Committee and Attorney General's Office — instead ruling that eliminating the captured sample requirement would be fundamentally unfair.  A big victory for the NHACDL, for DWI lawyers and their clients, and for the cause of justice.  Read NHACDL's Amicus Brief here.

New Hampshire statutes, regulations and caselaw require that breath testing machines capture and preserve a second sample of the accused's breath.  The accused is given the captured sample and has the right, at  her own expense, to have the sample tested by an independent laboratory.  The independent laboratory, CG Labs, uses a gas chromatograph - a far more reliable instrument - to determine the alcohol concentration in the breath - and the presence or absence of any interferents that may have tainted the reliability of the Intoxilyzer's reported result.  The Department of Safety, and prosecutors, want to do away with this important safeguard that tends to prevent the conviction of the innocent.  Why?

According to a front page article in the Concord Monitor, entitled, ironically, "State Aims to Upgrade Breath Test," government bureaucrats at the Department of Safety are lobbying the legislature hard to eliminate the captured sample requirement.  They say their motive is "good science" - the Intoxilyzer 5000 is an old machine, new machines made by other manufacturers cannot be configured to capture a breath sample for the accused, so legislators should repeal the laws mandating captured samples.  State Forensic Laboratory Director Tim Pifer contends that the Intoxilyzer 5000 is not only old, but fundamentally unreliable, so upgrading is in everyone's interest, including the accused.  What's wrong with that argument?  

First, Pifer's only evidence that the Intoxilyzer 5000 is "unreliable," is that the captured samples show the machines to be wrong 5% of the time.  As an aside, this will come as a rude surprise to the hundreds of defendants over the last two decades who have been convicted by judges and juries based on sworn testimony from other bureaucrats at the Department of Safety that the Intoxilyzer 5000 is highly reliable!  More to the point, however, is the sheer chutzpah of this argument which basically goes as follows:  1) Captured samples show that the breath testing is prone to error, 2) How do we solve that embarrasing problem?  3) Eliminate the captured samples!  Then, the error rate will magically fall to zero.

Second, the State does not actually propose to buy all new machines, because that would cost a fortune to the taxpayers.  New machines from manufacturers like Germany's Draeger can cost upwards of $12,000 per machine, plus expensive training of maintenance personnel, etc.  So, Pifer suggests in the Monitor article that we upgrade the machines one by one.  Of course, that makes no financial sense whatsoever.  The cost of the machines will be far less to the State if purchased in bulk.  So, do the bureaucrats really want to promote reliable science... or do they simply want to eliminate the embarrassment that occurs when captured sample analysis demonstrates the problems with breath testing. 

NH Supreme Court: Right Against Self-Incrimination Applies at Sentencing Hearings, Not Just Trials.

Here's a familiar scenario: Prosecutor thinks DWI defendant has no prior DWI convictions. 

Client, and attorney through attorney-client privilege, know there are prior convictions in another State. 

Judge, at sentencing hearing, asks client:  "Before I impose sentence, I will ask you:  Do you have any prior convictions for DWI?"
 
A skilled lawyer will be able to deflect this question, or refuse to answer it outright, under the authority of State v. Burgess, an appeal briefed and argued by Ted Lothstein.  In Burgess, the Court squarely held that the right against self-incrimination applies not just at trial, but at a sentencing hearing.  The defendant retains the right to remain silent, and the sentencing judge may not draw an adverse inference from silence (e.g., if accused had nothing to hide, he would not need to remain silent). 

Thus, under Burgess, the judge has no right to ask that question, the client should not answer, and the lawyer should protect his or her client.

May 25, 2007.  Drunk Driving:  Secret Random Stops Upheld.

Being a DWI Hunter is tough.  You've got to hide in darkened parking lots across the street from bars, cruise the highway, and drive all over town, looking for a drunk driver... and hope that the drunk driver drives so badly that you'll develop individualized, reasonable suspicion to pull him over.

There's got to be a better way. 

Commercial fisherman don't always use a hook and line, do they?  Some use a driftnet.

In State v. Hunt,155 N.H. 465 (2007), the New Hampshire Supreme Court, interpreting the State Constitution, upheld a DWI roadblock in Portsmouth where the only advance publicity had been in a Dover newspaper a few hours before the roadblock.  

Five defendants caught in the dragnet won their motions to suppress in the district court, but the State prevailed on appeal. 

Previously, the Court had at held that significant advance notice of roadblocks must be publicized in local media because otherwise roadblocks have no deterrent value in deterring drunk driving. 

Besides, advance notice allows the public can make a choice... do I want to waive my constitutional rights and submit to random, suspicionless searches when I go out this Saturday night, or would I prefer to stay home? 

The Court decided:

1. Sobriety checkpoints do not per se violate Part I, Article 19 of the New Hampshire Constitution.

2.  The Court backed away from its previous emphasis on the importance of advance publicity and even implied that advance publicity may not be constitutionally required at all, leaving that for another day. 

So, what to do about sobriety checkpoints?

If you see a checkpoint up ahead, and you don't feel like submitting to a warrantless and unwarranted intrusion into your privacy, take the next available turn-off.  According to the Hawaii Supreme Court among others, intentional evasion of a checkpoint is not reasonable suspicion to stop the vehicle.

The Court rejected the defendant’s claim that such presentation of rank hearsay regarding the collection and testing of his blood sample would violate the federal confrontation clause as interpreted by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 126 S.Ct. 2266 (2006).

Further, in reaching this result, the Court acknowledged that the hearsay testimony at issue practically amounted to the only evidence of guilt in the case.

With a new Justice appointed to the Court this month, the time is ripe for the Court to revisit and overrule the O'Maley decision.  Litigators should argue that it was wrongly decided as a matter of State Constitutional law, and at any rate was abrogated by the United States Supreme Court's decision in Melendez-Diaz.  No State can afford its citizens less rights than guaranteed to all citizens across the country by the Supreme Court. 

Stay tuned!  - ted

04/22/2008. Court Narrows Scope of the Exclusionary Rule.

State v. Joseph Panarello, No. 2007-554 (2008). This decision resolves a classic conundrum regarding the scope of the exclusionary rule. When the police violate someone's constitutional rights, and find evidence as a result, the evidence is suppressed. What happens if the police violate someone's constitutional rights, and the person reacts by committing a new crime - is the conduct suppressed?

The State conceded that the police made an unlawful warrantless entry into Panarello’s home, in violation of Part I, Article 19 of the State Constitution. The State, however, appealed from the trial court’s decision to suppress evidence that Panarello reacted to the unlawful intrusion by pointing a gun at a police officer.

In an issue of first impression, the court joined “the overwhelming weight of authority” by adopting a “new crime exception” to the State Constitution’s exclusionary rule. Just as the police need to be deterred from violating the constitutional rights of citizens... citizens need to be deterred from taking the law into their own hands.

Thus, the trial court was wrong to suppress the evidence. Nevertheless, the court affirmed the trial court's order, because the prosecutor never argued the existence of a "new crime exception" to the trial court. Just as the game of Monopoly has a card entitled "Bank Error in Your Favor"... Panarello wins his case because of a card in the criminal justice deck entitled "Prosecutor Error in Your Favor."  Read the State v. Panarello decision.

04/08/2008. New Weapon for War on Marijuana Users.

In this most unfortunate decision... the Court upheld the right of the police to make a warrantless entry into a private home, based on the smell of burning marijuana.  Thus, police were allowed to enter a private room without a warrant where the circumstances presented no emergency and indeed, presented no risk whatsoever of injury to any person. State v. Luis A. Rodriguez, 945 A.2d 676 (N.H. April 8, 2008).While investigating an unrelated matter, police officers smelled the odor of “burning marijuana” emanating from a particular hotel room. The officers knocked on the door and eventually gained entry by threatening to forcibly open the door. Inside, the officers observed drugs and drug-related material, at which point they secured the room and obtained a search warrant.

Under Part I, Article 19 of the State Constitution, warrantless entries into the home are per se unreasonable and illegal unless within the narrow confines of an exception to the warrant requirement. The Court held that this warrantless entry was justified by probable cause and exigent circumstances, because possession of marijuana was a jailable offense, not a minor offense; because the odor of burning marijuana, as opposed to burnt marijuana, represented the destruction of evidence; ...

and because the hotel room had indoor plumbing, further facilitating the ready destruction of evidence!

Yes, the Court actually relied on indoor plumbing. This may give comfort to the many families in NH who will retain their right to privacy because they still haven't installed indoor plumbing.

Justice Hicks dissented. He noted that the expectation of privacy of a hotel room occupant is equivalent to that of an occupant of a private home, and found it “unsettling” that the precedent would allow a warrantless entry into a private home based upon similar facts. Read Court's Decision in State v. Luis Rodriguez.