Sunday, May 15, 2011

A Problem of Criminal Procedure -- and American Liberty

I am watching a C-Span program "2011 Virginia Festival of the Book." Bruce Fein, author of American Empire Before the Fall, is one of the speakers. The discussion put me in mind of a problem I posed to the students in my seminar Constitutional Criminal Procedure:

April 13, 2011
Constitutional Criminal Procedure
Discussion Problem

On July 1, 2010, Officer Marlene Davis of the Sexual Crimes Unit of the City of Ames Police Department, State of Blackacre, visits the Heavenly Day Care Center in Ames. There she gives a talk to the children at Heavenly to warn them not to let grownups touch their genitals and to tell their parents if anyone does. Immediately after the talk, Amy Johnson, a five-year-old girl at Heavenly, rushes up to Officer Davis and whispers in her ear, “A big man at school played with my wee-wee today.'' Officer Davis replies, “Who did that, Amy?” However, Amy starts crying hysterically and refuses to say anything more. Officer Davis establishes that four men work at the Heavenly Day Care Center. Officer Davis immediately interviews all four men in Heavenly's cafeteria. Three of those men deny any wrongdoing. However, the fourth man, Adolf Carter, responds by saying, “I don't have to talk to you and I'm not going to,” and then walks away. Officer Davis, however, follows Carter, takes him into custody, and drives him in her patrol car to the offices of the Sexual Crimes Unit. There another police officer, Officer Walton Wanton, a male officer, straps Carter into a chair and subjects him to a penile plethysmograph test, which is is a procedure that involves placing a pressure-sensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses. Officer Wanton reports to Officer Davis that Adolf Carter exhibited an extraordinarily high level of sexual arousal on being shown images of young nude female children. Officer Davis informs Adolf Carter, who is still strapped in the chair, “I'm afraid you flunked the test, Mr. Carter.” Carter responds, “OK. So I touched the kid. So what? That's not a crime.” Adolf Carter is indicted for sexual abuse of a minor. At Carter's trial the prosecutor offers in evidence Carter's statement “OK. So I touched the kid. So what? That's not a crime.” Carter's counsel states, “I object, your Honor. The evidence is barred by the Self-Incrimination Clause of the Fifth Amendment and by the Fourth Amendment's Search and Seizure Clause. Moreover, the forcible use of that test was a gross imposition on Mr. Carter's constitutionally-protected liberty and privacy.”

Please evaluate the admissibility of Carter's statement under the Fourth Amendment's Search and Seizure Clause, under the Fifth Amendment's prohibition against compulsory self-incrimination, and under any other federal constitutional principles we have discussed in this seminar.


Does the procedure described above strike you as nothing more than the product of the fevered imagination of a pointy-headed academic? If so, consider

United States v. Cope, 527 F.3d 944 n. 1 (9th Cir. 2008):
As we explained in detail in United States v. Weber, 451 F.3d 552 (9th Cir. 2006), penile plethysmograph testing involves placing a device on a man's penis to "measure[ ] its circumference and thus the level of the subject's arousal as he is shown sexually explicit slides or listens to sexually explicit audio scenes," id. at 562 (internal quotation marks omitted). Plethysmograph testing has become a fairly common component of sex offender treatment programs. Id.

United States v. Weber, 451 F.3d 552 (9th Cir. 2006):

Plethysmograph testing is a procedure that "involves placing a pressuresensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses." Jason R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on Convicted Child Sex Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004). Although one would expect to find a description of such a procedure gracing the pages of a George Orwell novel rather than the Federal Reporter, plethysmograph testing[1]has become routine in the treatment of sexual offenders and is often imposed as a condition of supervised release.


We don't subject the entire American adult male population to the penile plethysmograph test. But we do plan to subject all air travelers to a device -- a full-body backscatter x-ray unit -- that exposes travelers' genitals to the operator of the device. There are said to be plans to use the device on some subway lines and perhaps elsewhere.


The dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.


Unknown said...

See also Harrington v. Almy, 977 F.2d 37 (1st Cir. 1992) (then-judge Stephen Breyer was a member of the three-judge panel)

Unknown said...

Angela K. Brown, "Texas bill would make invasive pat-downs a felony," ajc [Atlanta Journal Constitution?], April 29, 2011,

"FORT WORTH, Texas — A former Miss USA's tearful claim that she was groped during a pat-down at Dallas-Fort Worth International Airport could be a criminal matter under a bill gaining momentum in the Texas Legislature.

"The proposed Texas law, aimed at people conducting security checkpoints at airports and public buildings, would make it a felony to intentionally touch someone's private areas — even on top of clothing — unless the officer or agent has probable cause to believe the person is carrying something illegal.

State Rep. David Simpson, R-Longview, who sponsored the bill, said Friday that the invasive pat-down searches at airports nationwide are a violation of the Fourth Amendment, which prohibits unreasonable searches. Last fall the Transportation Security Administration implemented a new pat-down procedure that includes a security worker running a hand up the inside of passengers' legs and along the cheek of the buttocks, as well as making direct contact with the groin area."

Unknown said...

In a later part of the above article, there is this:

"According to the TSA, 898 people who underwent or witnessed a pat-down complained to the agency from November through March, and 252 million travelers were screened during that period. The TSA says less than 3 percent of travelers undergo pat-downs, including those who opt out of a body scanner or when it detects a problem and those who require an additional screening when a metal detector goes off."

"Since the new anti-terrorism screening measures took effect last year, the American Civil Liberties Union has reported receiving more than 1,000 complaints. Those travelers claim that TSA agents have patted their genitals, run fingers through their hair or along their bras or waistbands."

"In Alaska, 59 of the 60 lawmakers have asked a U.S. Senate committee to hold hearings in that state on what they call the 'often invasive procedures' used by the TSA, and they're researching what they can do on a state level."

"'You shouldn't have to sacrifice your dignity when you travel, and air travel is such an important part of travel in Alaska,' said Mark Gnadt, press secretary for House Democrats in the Alaska Legislature.

"At least two federal lawsuits have been filed over the pat-downs."

James said...

The 4th A. requires reasonable searches and seizures. Evaluating the facts under the totality of the circumstances, the Officer would not be able to show, by a preponderance of the evidence,that there was probable cause to take the suspect into custody. The Exclusionary rule would require that the fruits of that wrongful seizure (the statements)be excluded from trial, unless to impeach the direct testimony of the defendant.

Being that the suspect was in custody and not apprised of his rights and consequences of waiving those rights (Miranda), the suspect's statements will not be admitted at trial. The 5th A. protects persons from being compelled to make self-incriminating statements. Custodial Interrogations are by nature coercive, and in order to protect the 5th A., Miranda must be read. According to the Exclusionary rule, the violation of the 5th A. right requires that the fruits of that violation not be admitted at trial, unless to impeach the defendant.

If brought in state court, the defendant will argue that his 14th A. right to Due Process was violated by the police conduct.