About: David Goguen

David Goguen is a legal editor at Nolo, focusing on claimants' rights in personal injury cases. He is a member of the California State Bar with over a decade of experience in litigation and legal publishing. David is a graduate of the University of San Francisco School of Law.

Recent Posts by David Goguen

Supreme Court: Cops Need a Warrant for GPS Tracking

The Supreme Court ruled today that a law enforcement agency’s attachment of a GlobalPositioning-System (GPS) device to a vehicle, and the use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. The decision offered the Court a chance to define “search and seizure” rights in an era in which technology is tirelessly extending the reach of the long arm of the law. But while all nine Justices agreed on the decision — use of the GPS device constituted a search under the Fourth Amendment so that a warrant is required — they didn’t take the same route to get there, and the somewhat narrow ruling may not cover much precentent-setting ground in the constitutional law canon.

The underlying facts of the case (U.S. v. Jones) show that a joint narcotics task force of FBI and D.C. Metro Police installed a Global-Positioning-System (GPS) tracking device on a suspect’s vehicle, and used the device to track the vehicle’s movements for 28 days, in connection with a drug trafficking investigation.

Justice Antonin Scalia authored the Court’s majority opinion in U.S. v. Jones, in which Chief Justice Roberts and Justices Thomas, Kennedy, and Sotomayor joined. In ruling that use of the GPS device to monitor the vehicle’s movements on public streets amounted to a “search” under the Fourth Amendment, Scalia’s opinion focused on the physical act of intrusion. Scalia compared the attachment of the device with the age-old legal wrong of common law trespass: “The Government physically occupied private property for the purpose of obtaining information…By attaching the device to the Jeep, officers encroached on a protected area.”

Justic Sotomayor wrote her own concurring opinion to emphasize that “the Fourth Amendment is not concerned only with trespassory intrusions on property,” and to suggest that a more appropriate focal point for analysis in cases involving the use of potentially intrusive technology might be on the “existence of a reasonable societal expectation of privacy in the sum of one’s public movements” under the circumstances. But Sotomayor then points out that resolution of such larger issues is not necessary in the instant case because “the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision.” The glaring problem with Scalia’s decision as authored, according to Sotomayor, is this: “In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance.”

Justice Samuel Alito also authors his own concurring opinion (in which Justices Ginsburg, Breyer, and Kagan join) to also suggest that the majority may have erred in focusing on the physical trespass element of the search (the placement of the GPS device on the vehicle) rather than the bigger (unanswered) question: “I would analyze the question presented in this case by asking whether [the suspect]’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”

Read U.S. v. Jones — the majority decision, concurring opinions, and all — right here.

The Young and the Arrested

By age 23, almost one-third of all people in the U.S. will have been arrested for a crime other than a minor traffic offense, so say the findings of a new study in the journal Pediatrics.

These numbers show a marked increase from a similar study conducted 44 years ago, which found that 22 percent of people had been arrested by age 23.

While the new number (30.2 percent, to be exact)  may seem surprisingly high, keep in mind that it applies only to arrests — not to convictions, and not even to the filing of formal criminal charges. (Learn more about Criminal Charges and How Cases Get Started.) And while there are surely more than a few hardened criminals under the age of 23, the data includes arrests for comparatively minor offenses such as truancy, vandalism, and underage drinking.    

So why are heavy silver bracelets all the rage these days? Some experts are attributing the rise in arrests among young people to factors like the increased prevalence of drug offenses and domestic violence offenses — which were not committed, reported, or acted upon by law enforcement with nearly as much frequency four decades ago (more in this Chicago Sun-Times article). The New York Times points out that this rise in arrests for young adults comes at a time when it’s easier than ever for potential employers to check on criminal histories, so young job applicants may be in for an “arrested development” when it comes to their careers.

‘West Memphis 3’ Freed: What is an Alford Plea?

In one of the most surprising chapters in the controversial story of the “West Memphis 3″, the three Arkansas men — convicted of murder while still in their teens, and now in their 30’s — were set free today.

Jason Baldwin, Damien Echols, and Jessie Misskelley have essentially agreed to plead guilty to the 1993 murders of three boys in West Memphis, Arkansas, but the three defendants are also still permitted to proclaim their innocence.

Confused yet?

The judge in the Jonesboro, Arkansas case has allowed the “West Memphis 3″ to enter a special plea agreement, commonly known as an Alford plea, which lets an accused person maintain their claims of innocence while acknowledging that the prosecution has compiled enough evidence that a jury could return a conviction on the crime charged. There’s some good background and discussion on this kind of plea here on CNN.com.

Baldwin, Echols, and Misskelly were given time served for their charges after the judge accepted their new plea bargains, and all three are under suspended sentences after being set free, this according to MyFoxMemphis, which quotes prosecutor Scott Ellington saying after today’s proceedings: “I believe this case is closed.”

The Alford plea gets its name from the 1970 U.S. Supreme Court case Alford v. North Carolina, in which the Court upheld this specific kind of agreement between a prosecutor and a criminal defendant. In that decision, the Court declared:

    “An accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, or even if his guilty plea contains a protestation of innocence, when, as here, he intelligently conclude that his interests require a guilty plea and the record strongly evidences guilt.”

‘Caylee’s Law’ Coming Soon?

A mere two days after a Florida jury decided that prosecutors failed to establish Casey Anthony’s guilt beyond a reasonable doubt when it came to the murder of her daughter Caylee Anthony, comes news that legislatures in at least four states are planning to draft some version of a criminal statute they’re calling “Caylee’s Law.”

Though specifics of any final version of “Caylee’s Law” will likely vary from state to state, the idea is to require parents to quickly report a missing child (or the death of a child) to the proper authorities within a short time (such as 24 hours), or face conviction for a felony. Currently a plan for drafting “Caylee’s Law” is set in Florida, Oklahoma, New York and West Virginia, but it would be no surprise to see more states quickly fall in line behind those four. And the WSJ Law Blog reports that almost 100,000 people have also virtually “signed” an online petition calling for the creation of a federal version of “Caylee’s Law.”

In the Anthony case, Caylee Anthony’s disappearance was not reported to authorities for over a month. And while Casey Anthony was convicted of four counts of lying to police, she faced no additional charges for failing to report her daughter as missing, because Florida has no such law on the books. That may change soon — and not just in Florida. Stay tuned.

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