Monday, March 31, 2008

Competing competing consent opinions

The en banc opinion in United States v. Weston, __ M.J. ___, No. NMCCA 200600985 (N-M. Ct. Crim. App. Mar. 31, 2008), is unsatisfying not because Senior Judge Geiser's opinion for the court is deficient -- it isn't; it ably lays out the case for admissibility of the evidence -- but because Senior Judge Rolph and Judge Kelly give us no hint as to why their votes flipped.

The en banc decision is virtually a mirror of the panel decision. Both rely on Georgia v. Randolph, 547 U.S. (2006), to analyze a situation where a husband and wife are both at a law enforcement agency's office where the suspect spouse refuses to give consent to search the home computer while the non-suspect spouse gives such authority unaware that her husband has refused consent. Both decisions rely on "social expectations" to decide the outcome of that scenario. The opinions intuit that social expectation rather than looking to some external source of guidance. How could it be that in the panel decision, two NMCCA judges found that social expectations vindicated the objecting spouse while in the en banc decision, the same two judges found that social expectations vindicated the consenting spouse? We have no idea.

Here's what the panel said:

Of greatest concern is whether the shared social expectations and common understanding of a person at the physical residential threshold would be the same as someone who was not at the front door when competing invitations to enter are communicated. Would a sensible person who is presented with competing invitations away from the shared residence have any confidence that the "invitation was a sufficiently good reason to enter when a fellow tenant" told them to stay out? Randolph, 547 U.S. at 113. If the invitee knew that the non-consenting co-tenant would not or could not be present at the shared residence to enforce his refusal, would shared social expectations and common understanding lead a sensible person to have confidence that the competing invitation is a sufficient reason to enter? We think not.

Now here's what the en banc decision says:
There is no widely-shared social expectation that a reasonable third party, invited into a home by one of the residents, would decline that invitation merely because he or she was aware that an absent co-tenant objected to their presence. While some reasonable people might think better of visiting a residence if they knew an absent co-tenant did not want them, other reasonable people would have no such qualms. Consequently, it cannot be said there exists a widely-shared social expectation that the reasonable invitee would not accept the invitation.

How could two judges join both of those opinions? They give us no idea.

The inevitable discovery portion of the opinion is, if anything, even more frustrating. The panel emphasized the Keystone Kop approach of the investigating CID agents and reasoned that there was nothing inevitable about any ultimate lawful search of the computer. The en banc decision, on the other hand, appears to simply assume that had consent not been given, Agents McGarrett and Williams would have stepped in and everything would have gone smoothly. See Weston, slip op. at 14-15.

The panel reasoned:
[T]he Government's evidence establishes no more than that the seized evidence "could" have been discovered if an alternative procedure had been implemented as part of the investigation. Only speculation can get the Government beyond what "could" have been done and what results "might" have been achieved. Because we must focus on the "demonstrated historical facts capable of ready verification or impeachment," without speculation, Nix, 467 U.S. at 444 n.5, we conclude that the Government did not carry its burden of establishing inevitable discovery by a preponderance of the evidence.

Yet the en banc decision appears to engage in just such speculation when it reasons:
It would be wholly unreasonable to conclude that Agent Stevenson would have simply abandoned her efforts to find and secure the computer in the face of a lack of consent. It is equally unreasonable to conclude she would not have applied her superior knowledge and experience in using the existing and available resources, including the trial counsel, to quickly obtain a search authorization had that, in fact, been necessary.

The fact that, having secured the computer, Agent Stevenson elected to delegate responsibility to her trainee to obtain a warrant to search the contents of the seized computer is of little moment. Tasking a subordinate to obtain a search warrant when the computer evidence is already safe and secure in the CID evidence locker has far less urgency than the situation that would have existed had Mrs. Weston declined to consent to the initial search.

Weston, slip op. at 14-15.

In other words, had Mrs. Weston not consented everything would have been totally different and NMCCA will guess that CID would have gotten a lawful search authorization. Again, how do two judges get from the former view of inevitable discovery to the latter? They don't tell us.

There is some reason to think that perhaps NMCCA's en banc decision won't be the last word.

Senior Judge Geiser's opinion for the court forthrightly observes, "We are cognizant that an objecting, non-present appellant is a case of first impression to our court and to a lesser degree within the federal circuits." Weston, slip op. at 13. Perhaps CAAF will choose to explore this case further to decide whether two of NMCCA's judges were right when they joined the panel decision on 25 September 2007 or when they joined the en banc decision on 31 March 2008.


Anonymous said...

Randolph invalidated a search only because the objecting party was physically present at the threshold, objecting.

Matlock continues to be valid for those situations where the objecting party was not physically present. The Supreme Court made it clear in Randolph that Matlock still applies to situations where the objecting party is not present at the threshold.

NMCCA discusses this at pp. 8-12 of the slip opinion.

Weston was not physically present at his home (he drove himself to the investigator's office), and his absence was not created by law enforcement for the specific purpose of removing an objecting party from the threshold. Therefore, Matlock, not Randolph, applies. NMCCA got it right on reconsideration.

The separate, normative question is whether law enforcement should get the benefit of general societal expectations. Suppose two roommates have a mutual friend. Roommate #1 has a falling out with that friend and tells the friend to stay away from the apartment. Roommate #2 remains friends with the friend, and invites him over to watch football while Roommate #1 is absent. Of course Roommate #2's invitation prevails over Roommate #1's objections.

What you do in your relationships with your friends, however, is different than your relationship with the government or law enforcement. My personal opinion is that law enforcement should be held to a higher standard, particularly in light of the general constitutional requirement to obtain a warrant. It's one thing to invite people in to watch the game, have dinner, enjoy a few drinks and socialize; it is quite another to invite people in to conduct an invasive search of one's private property. Such searches normally never occur in general society, and are a unique power of law enforcement. Thus, using "societal expectations" is probably not the correct metric for whether a search is a genuine product of consent, or not.

Anonymous said...

The "social expectation" metric is a parallel to the "expectation of privacy" metric. You are correct that, strictly speaking, it is an awkward tool to measure law enforcement activities, such as a search.

For example, when I throw out my trash, I suppose one could argue that I have 'surrendered' my "expectation of privacy" (a social expectation) to the trash. But I'll be damned...and most people allow a neighbor or passerby to start rummaging through my trash. In "social expectation" terminology, most self-respecting American men would confront the rummager and would be willing to fight over such an outrageous intrusion. Yet the Supreme Court has danced-over this "social expectation" by saying that its ok for law enforcement to rummage through your trash. The point-being that Anon #1 is right: "social expectation" is NOT a good metric vis-a-vis the police.

The subtle difference between the panel and the en banc decisions seems to be on the 'standard of review,' for lack of a better phrase, to be placed on the "social expectation." In the panel decision, the emphasis is on one individual having "confidence" in the "social expectation." So the 'standard of review' is high (doubt resolved in favor of the non-consenting owner). But in the en banc decision, the emphasis is on the need for unanimity or consensus of the social expectation(doubt resolved in favor of the consenting owner).

In both decisions, the "social expectation" is approximately the same. But the power or compelling force of that social expectation...and its consequences...are resolved differently.

The obvious problem with the en banc decision is that virtually no social expectations (in America) are universal. So NMCCA has - subtley - published no standard at all.

"Social expectations" as a legal standard in the age of Jerry Springer! Give me a break. Is it ok to fart in church? Well, some say yes, some say no, so we can't say. The panel decision was better because it provided a realistic methodology to apply the "social expectation" theory. The en banc decision eviscerates "social expectation."

H Lime said...

Ah yes, but your expectation of privacy in that piously expatriated methane is undoubtedly entirely surrendered to the enjoyment of all onlookers.


Anonymous said...

It is no secret that only one of the three judges actually looks at a case on appeal and writes the panel opinion. The other two judges simply sign their names to it.

So is there really any doubt as to how Rolph and Kelly could have so dramtically "flipped" when reconsidering "their" decision en banc?

H Lime said...

Actually that was a secret, until you revealed it. Shame on you.

For those who where there for the first oral argument, you'll recall that Judge Rolph asked a number of thought-provoking questions ("what's the Constitutional significance of the threshhold"), to which the Gov't repeatedly punted. He certainly conveyed openness to a more involved Constitutional argument, Gov't didn't at the time bite, choosing discretion over valor I suppose. Had the Gov't taken a different tack, Judge Rolph might have been the hook to pull the Court back on track. Clearly they bit the second time, and Gov't counsel did a bang-up job bringing them back around.

I'm reluctant to allege dereliction of duty when you have Judges Rolph and Kelly involved. Check your tongue, knave.


John O'Connor said...

To follow up on h lime's last comment, I'm a believer in anonymous posting, particularly for a blog like this where a large portion of the potential audience would continue to proactice before the judges whose decisions are discussed. But I have to say that my good feelings about anonynmous postings wanes when the cloak of anonymity is used to allege malfeasance and, in h line's words, dereliction of duty, without any objecvtively supporting documentation for such accusations.

Anonymous said...

The division between a personal attack and a professional one can be close. Although its a sensitive issue, and Anon was rather blunt about it, he/she does have a point about the practice of only one judge (of 3 - the panel) actually reading the case in full.

CCA can quell these bad vibes by simply changing its rules to require all 3 judges on the panel to read the case and briefs in full. But the internal court practice is cloaked in ambiguous secrecy. My hunch is that the judges read all of the important stuff and get good summaries. But I am guessing that the work is not 100% ownership on each and every case.

So, although personal attacks should be avoided...I think a blog like this should ask bold questions about judicial practice.