Newsletter Archive January 2021

1/30/21 Newsletter

Dust in my brain’s attic, volume 1 (My first attempt at a newsletter.)

Change of plan.  I initially suggested that I’d be talking to you about how easy it is for you to write and publish a book, but that will wait. 

The other day, a judge ruled that the videos taken of Patriot’s owner Kraft at a Florida massage parlor must be destroyed as they could not be used as evidence in the case against Kraft.  Since the case first made the news, it seemed to me that reporters and most people did not understand why such clearly relevant evidence was being suppressed.  Although I am not privy to the details of the case, I believe that this was not a case of a rich guy’s money getting him out of trouble.  It seems that the judge determined that one of the good guys messed up. 

The exclusionary rule is the authority of a judge to block evidence that has been obtained in violation of a constitutional protection.  As a famous judge was explained the exclusionary rule, “the criminal must go free because the constable has blundered.”

Surveillance warrants (including eavesdropping and video) are the most intrusive forms of police action, and courts require the tightest controls.  The application for such a warrant must provide probable cause (that it is more likely than not) that specified crimes are occurring, that evidence of these crimes will be found using this warrant, and that less intrusive police methods are unlikely to be successful. 

Unlike TV, the officers cannot just turn on their equipment and listen or watch until the warrant expires.  It is required that the monitoring officers “minimize” the intrusion by limiting their looking or listening to only criminal activity. If there is innocent activity going on, the officers must turn off their equipment and then only periodically turn it back on to see if the activity has become criminal again.

I supervised the application and execution of a number of these warrants over the years.  In every case, I ran a “minimization briefing”, instructing every cop who was going to monitor the equipment about the rules and when they could and could not monitor.  I then submitted an affidavit to the judge about this briefing, including a list of all attendees.

Near as I can tell, this process broke down somehow, and video of plain old massages was taken of people who had a right to privacy.  A lot of law enforcement work lost because the “off” switch was not flipped enough.

Now you know.  At your next virtual get-together, you will dazzle your friends with your legal insight, and since you will be wearing a mask, no one will be able to identify that boring person on the Zoom call.

See you next month.  Be safe!