First Amendment and investigations
rs at robertsheridan.com
Tue Oct 9 00:12:54 PDT 2007
A true investigation, as opposed to case-building, which uses the
same techniques but has a different intent, is an intellectual
exercise, first, a seeking of something deemed to be relevant to
support a theory. The conduct of investigations is one of the most
heavily regulated areas of the criminal law. See the Fourth
Amendment rules on search warrants, the requirement of
reasonableness, probable cause, etc.
Something about Eugene's focus on words used as evidence gave me
pause and prompted me to check the Calif. Penal Code to see what it
said about searching for evidence as opposed to instrumentalities,
for example, used to commit crimes. Here's the list (PC 1524):
(a) A search warrant may be issued upon any of the following grounds:
1. When the property was stolen or embezzled;
2. When the property or things were used as a means of committing a
3. When the property or things are in the possession of any person
with the intent of using them to commit any public offense, or in the
possession of another to whom he or she may have delivered them for
the purpose of concealing them or preventing them from being discovered'
4. When the property or things to be seized consist of any item or
constitute any evidence that tends to show a felony has been
committed, or tends to show that a particular person has committed a
5. When the property or things to be seized consist of evidence that
tends to show that sexual exploitation of a child in violation of
Sec. 311.3 [a list of exploitive conduct], or possession of matter
depicting sexual conduct of a person under the age of 18 years, in
violation of Sec. 311.11, has occurred or is occurring.
6. When there is a warrant to arrest a person.
7. When a provider of an electronic communication service or remote
computing service has records or evidence, as specified in 1524.3,
showing that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the possession of any
person with the intent to use them as a means of committing a public
offense, or in the possession of another to whom he or she may have
delivered them for the purpose of concealing them or preventing their
(b) [Provides that the property or things or person(s) described in
(a) may be taken on the warrant from any place or from any person in
whose possession the property or things may be.
(c) Notwithstanding (a) or (b), no search warrant shall issue for any
documentary evidence in the possession of [a lawyer as defined, etc.,
a physician, a psychotherapist, or a clergyman who is not reasonably
suspected of engaging or having engaged in criminal activity related
to the documentary evidence for which a warrant is requested unless
the following procedure has been complied with:
[here there is a requirement that the issuing court appoint a special
master who will accompany the officers who serve the warrant; if the
subject of the warrant states that "an item or items should not be
disclosed," the special master takes control of the items pending a
special hearing...etc., etc.]
Investigations beyond the issuance and execution of search warrants
can be used to harass. The Kenneth Starr investigation of Clinton
and the Whitewater investigation were seen by many as being abusive,
leading to the elimination of Starr's office eventually.
So it is not surprising, although it is rare, to see a court control
or shut down an investigation for policy reasons such as in Conant v.
Walters by enjoining it from proceeding.
To say that since "speech can be used as evidence at trial" in
support of the idea that therefore a doctor's words to a patient are
fair game to be obtained as evidence by some means (bugging the
office? running in undercover patients?) seems to be worse medicine
than any sniffle it is meant to cure. We're going to make doctors
offices battlegrounds for the law courts in order to insure that they
don't advocate (see Brandenburg) smoking medicinal marijuana to
alleviate suffering and increase appetite in cancer patients? In the
name of supporting the all-powerful state? Such a state ought to be
overthrown. It seems to me that we did this once when searchers in
the form of Redcoats were kicking in doors to see who was drinking
tea without paying tax.
Of course some "government agent" may believe that people who hold
certain views are more likely to commit certain crimes than others.
People who opposed the Vietnam War were often more likely to smoke
marijuana than Robert McNamara and Lyndon Johnson in his older
years. This gave rise to something called "hippie probable cause" in
which VW vans with peace symbols were stopped on general principles
until a Cal. SC case called Keller came along and put a halt to the
practice, in theory at least. While not the same as an injunction
halting the police conduct, the effect was to remove the incentive by
disqualifying the evidence for use in court.
The difference seems to be that an injunction forestalls the
investigation from occurring in advance, while the granting of a
motion to suppress quashes the fruit thereof in arrears. Same game.
Eugene asks whether it should be unconstitutional to prevent a
government agent, i.e. an undercover officer, controlled informant,
or a bug or its equivalent) from invading the privacy of a medical
office where patients and doctors communicate on a basis of privilege.
The answer is of course it should be unconstitutional, that is if you
hold other values dearer than having Insp. Javert spend 20 years
hounding Jean Valjean.
We disallow evidence obtained by torture on policy grounds. Likewise
evidence obtained by threat of punishment or promise of reward, and
psychological coercion. For policy reasons. These methods, or
cures, turn us into the bad guys and prevent us from complaining when
one of us is so treated by others.
Notice that in the list of items of evidence in Cal. P.C. 1524 there
is no item listed as speech per se. There are only property, items,
documents, images, and generally tangibles or tangible
representations such as photos, but not the spoken word.
Anyone who has the power of speech could conceivably conspire or
solicit the commission of a crime as dire as the World Trade Center,
but that is no argument for bugging anyone having a voice, any more
than for investigating all males for possession of rapists equipment,
or all repairmen for possession of burglar tools, to narrow down the
universe of potential suspects to one calling.
Why not make the government agent's job easier by requiring all
physicians to record and turn over all patient conversations to the
police? That would eliminate having to run in undercover agents.
The answer to the question, "Why couldn't [speech] be used as
evidence that the government considers in deciding whether to
investigate, i.e. look for more evidence?" is that we've been doing
this for decades and don't like it. That's what the Red Squads
(police detectives who investigated dissidents) were doing in
photographing demonstrations, keeping lists of names of suspected Red
sympathizers, and generally harassing people who exercised their
First Amendment rights. Some departments have abolished their Red
Squads. Others may disguise them. The FBI has long been derided for
keeping book on people like Charlie Chaplain and John Lennon for
speaking out against the views of J. Edgar Hoover. COINTELPRO was an
abusive investigative tool that set people up because of their views
as well as their activities.
That's what happens when you make speech, meaning the expression of
views contrary to official or defacto political policy, the trigger
for your investigation. If ever there was a politicized category of
contraband, after tea, it is marijuana.
On Oct 8, 2007, at 2:47 PM, Volokh, Eugene wrote:
> Conant v. Walters, 309 F.3d 629, 636 (9th Cir. 2002), upheld an
> injunction that barred the government from "initiat[ing] an
> investigation of a physician solely on the basis of a
> recommendation of
> marijuana within a bona fide doctor-patient relationship, unless the
> government in good faith believes that it has substantial evidence of
> criminal conduct. Because a doctor's recommendation does not itself
> constitute illegal conduct, the portion of the injunction barring
> investigations solely on that basis does not interfere with the
> government's ability to enforce its laws." Denney v. DEA, 2007 WL
> 2344900 (E.D. Cal. Aug. 15), extended this to bar "retaliationary
> investigation" of a doctor who has publicly testified in favor of the
> use of medical marijuana.
> I sympathize with the courts' thinking here, and their desire to
> prevent investigations that might well deter protected speech. At the
> same time, given that speech can be used as evidence at trial (even
> it's merely relevant, not dispositive), why couldn't it be used as
> evidence that the government considers in deciding whether to
> investigate, i.e., look for more evidence?
> Say that a government agent believes that people who express
> certain views -- pro-marijuana, pro-racist-violence, fiercely
> anti-abortion-provider, and the like -- tend to be involved in
> activities as well. He therefore focuses on some people who say that,
> and tries to uncover more evidence that would support probable
> cause for
> a search or for an arrest. He naturally doesn't yet have probable
> cause, or even "substantial evidence," but he's also not yet
> engaging in
> activity that would normally require probable cause: He might just be
> going undercover to talk to the person, or asking around about the
> person, or even searching through publicly available things that the
> person has said or records of what he has done. Should that be
> unconstitutional? Or should a person's speech be usable as a basis
> an investigator's investigating further, though not searching,
> arresting, or convicting?
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