Comments on: John Perry Barlow's Trial Commences

John Perry Barlow's Trial Commences

Captaintripps — Fri, 17 Dec 2004 08:39:36 -0800

John Perry Barlow's trial commences and is commented upon by Seth David Schoen. A most interesting paragraph was: "First follow-up question: If you think a bottle contains an improvised explosive device, is it appropriate to shake it? No, that's almost the worst thing you can do. Second: Is it appropriate to open the bottle? No, that's the worst thing you can do. The defense then argued that Ms. Ramos could not really have believed that the ibuprofen bottle in question contained an improved[sic] explosive device, because she had testified that, on removing it from Barlow's bag, she became suspicious of it, then shook it, and then opened it. These actions were the most dangerous actions she could possibly have taken if she really believed that the bottle might contain explosives..." Followup for this post.

By: devbrain

devbrain — Fri, 17 Dec 2004 09:20:47 -0800

A very excellent write-up. Thanks for posting.

By: Sidhedevil

Sidhedevil — Fri, 17 Dec 2004 09:31:23 -0800

Thanks! That was a very thoughtful piece by Schoen.

By: Bort

Bort — Fri, 17 Dec 2004 10:02:11 -0800

The outcome was that the motion to suppress the evidence was denied: The judge remarked that obviously it must not be the rule that screeners have to ignore contraband when they find it. So the question, he said, is whether they have a reason to look in the first place; if they have a reason to look, then they can use their own judgment -- and that's what Ms. Ramos did. When she shook the bottle and opened it, that didn't indicate that she was looking for drugs; perhaps she was stupid to do so, but being careless about one's own safety is not sufficient to make a search unreasonable under the fourth amendment. She used her own judgment about the nature of the threats and the best way of investigating them, which is a reasonable search. Hence Barlow's motion must be denied; his argument about reasonableness, while founded on a commendable concern with privacy, is too broad in its implications, because it would ultimately suggest that screeners must ignore contraband they find. So, I guess he'll now go to trial, be found guilty, and the next ruling over the constitutionality of the search will occur in the appellant courts?

By: Captaintripps

Captaintripps — Fri, 17 Dec 2004 10:09:10 -0800

Bort: That would make sense to me. There it might get a more informed evaluation by a judge committed to the case.

By: clubfoote

clubfoote — Fri, 17 Dec 2004 10:31:45 -0800

I don't think they or anyone could have reasonably expected to win this round. Lower court judges on rotation like this are almost certain to pass the buck on something like this. Much better for tier career to get reversed in Circut Or SCOTUS than to piss off the gubment now and not make it up to that level. Great writeup, I wonder how long bloggers will be able to gain access for. I'm sure proceedings like this will be deemed to sensitive or some such nonsense.

By: defending chump

defending chump — Fri, 17 Dec 2004 11:34:29 -0800

Trial court judges generally will not overrule other court's decisions (or narrow them) or do anything controversial that could be seen as "making law" even when there is as clear and compelling case for doing so. However, this ruling doesn't make sense on a constitutional basis. Fourth Amendment law makes it clear that you must suppress the fruits of an illegal search. And (I'm only vaguely able to recall first-year crim law) I believe police can't use a specific search warrant for a large object to search every tiny nook and cranny in your house for any illegal activity. If they find anything not listed in the warrant in their search, it has to be in plain view to be eligible for use in criminal prosecution. The judge could easily have come out the other way (and should have).

By: monju_bosatsu

monju_bosatsu — Fri, 17 Dec 2004 13:30:21 -0800

You probably didn't cover the law governing this kind of search in first-year criminal procedure, because this is an administrative search, governed by slightly different standards than your run-of-the-mill warrantess search by the police. See the excerpts from U.S. v. Davis I posted in the previous discussion for more explication.

By: guanxi

guanxi — Fri, 17 Dec 2004 15:54:20 -0800

I discussed the case at dinner with a law enforcement agent who does drug interdiction, at airports, for the Federal gov't. According to him, by boarding a plane/entering an airport (I don't remember the exact threshold) you implicitly consent to searches for anything, not only for something that is a threat to the plane. He seemed to think it was too permissive, but he was confident that it was the current rule. He thought Barlow could win, but he said it require the courts to decide to narrow the standards.

By: Ironwolf

Ironwolf — Sat, 18 Dec 2004 01:06:25 -0800

Here is an e-mail I just sent to Seth, the author of the article:

I read with interest your account of John Perry Barlowe's December 16 hearing. I'll say at the outset that I believe drugs should be decriminalized. That said, I see a major flaw in your argument that airport security screeners should be viewed like doctors-- i.e., with a specific job to do (discovering threats to public safety such as bombs), and otherwise held by the flying public in a position of confidentiality and trust. As you point out, doctors without a doubt are in a position of confidentiality and trust, and should not be performing unrelated law-enforcement activities except under extreme circumstances. Unfortunately, that is not an attribute shared with screeners and the other officers who support them, who are, by definition, already in law enforcement. They are as a historical matter trained to observe ALL violations of the law, and then pick and choose which perceived violations on which to base their arrests. As a practical matter, it is like teaching an old dog new tricks to teach cops (or screeners, who are a kind of cop and immersed in that milieu) to turn a blind eye to something they know to be illegal (whether or not the laws make sense.) Of course, we hear about JPB's case because he got caught. I have no idea how many people make it through airport security with contraband, but there are no doubt some, and planes are not falling out of the sky when it happens. So while I admire JPB's stance on privacy, from a pragmatic viewpoint it seems like the effort would be better spent on decriminalization.