First Amendment and investigations

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  
felony;

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  
felony..

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  
discovery

(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.

rs
sfls

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  
> federal
> 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  
> when
> 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  
> criminal
> 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  
> for
> an investigator's investigating further, though not searching,
> arresting, or convicting?
>
> 	Eugene
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