Vail Daily column: Listening to the Supremes
July 1, 2014
The Supremes sang again last week.
No, no, not Diana Ross, Mary Wilson, Jean Terrell and the aptly named Cindy Birdsong. No, the other Supremes; the ones who sit around in ermine, who cogitate and whittle at our laws and who help to shape our lives. Yeah, those Supremes — The Nine — the justices of the United States Supreme Court.
Ah, those, you may be thinking; the ones I didn't pay any attention to in civics? Yeah, them.
Quick, can you name the present Nine? Here, I'll give you a quick hint. Left, or slightly left of center, you'll find usually huddled together Sotomayor, Breyer, Kagan and Ginsburg.
Tilting right or slightly right of center, you may count in a tight scrum Thomas, Scalia, Alito and Chief Justice Roberts.
And like the King of Pop's "man in the middle," sits, stands or tilts, the wily Anthony McLeod Kennedy, a man who by being the very fulcrum over which the modern wars of the Supreme Court are bent, just may be one of the most powerful and (except among the cognoscenti), largely unheard power brokers in the nation.
I'll note here that Diana Ross and the girls possessed better voices than the other Supreme and, using only my imagination here, I'd venture they cut slightly more comely figures in sequins.
DECISION'S FAR-REACHING IMPLICATIONS
The Supremes of the law gave voice again last week. And what may seem distant at 1 First Street, Northeast, in faraway Washington, D.C., has far-reaching implications.
Do you own a cell phone? Do you have some "stuff" on it? Do you have some stuff on it that you might even consider personal and maybe even a little private? Yeah, I thought so; who doesn't? Our cell phones, after all, have become fully equipped personal computers, ones on which we carry our account numbers, passwords, medical records, photographs, correspondence, private jottings and likely much, much more.
SUPREMES KEEPING UP WITH THE TIMES
Part of what's good (and, at the same time, often confounding) about the law is that it's always changing. It has to in order to keep up with the times. Because, as Dylan advised us, "the times, they are a'changin'."
So the Supremes, as ancient as they may appear to be, have simply got to keep up. Got a grandma who refuses to tackle a new-fangled ATM or an iPad? Well not the Supremes. They've probably got Luda on their iPods — well, the liberals anyway. Presumably, the conservatives have some Amboy Dukes.
PRIVACY IS KING
So what they recently wrestled with was technology, specifically, mobile phones and the right to be secure in your own personal stuff.
Here's what the Supremes had to say: Privacy is king — at least that is when it comes to cell phones. In a unanimous decision, the justices held that in order to search your cell phone (or for that matter, mine), law enforcement must first obtain a warrant. And to get a warrant, you may know, law enforcement must first prove to a judge that they have probable cause.
DEFINING PROBABLE CAUSE
What is "probable cause"?
In short, it is the Fourth Amendment requirement where law enforcement must demonstrate that there is a reasonable basis for believing that a crime may have been committed (for arrest) and that evidence of the crime is present in the place to be searched (for searches).
Probable cause is generally established by providing a judge or magistrate with information that the officers have gathered. Usually, the police provide the information in the form of written statements under oath (called affidavits), which report either their own observations or those of private citizens or police undercover informants. The affidavits police officers submit to judges have to identify objectively suspicious activities rather than simply recite the officer's subjective beliefs. The affidavits have to establish more than a suspicion that criminal activity is afoot but proof beyond a reasonable doubt is reserved for trial.
PROTECTING YOU FROM BIG BROTHER
OK now, back to the Supremes.
This is a big deal. What the Court decided is that in the digital age, different rules are necessary to abide by the Fourth Amendment's right to be free from unreasonable searches and seizures. This decision, along with the Court's prior decision in the 2012 Jones case (United States v. Jones, where the Court restricted law enforcement's ability to place a GPS device on a criminal suspect's vehicle to track him) is a solar plexus blow to Big Brotherism in its many electronic guises. In fact, in oral argument in Jones, the court referenced George Orwell's dystopian novel, "1984," (wherein Big Brother was first birthed) an astonishing six times.
Put simply, the Supremes get it. They got their own stuff on their cell phones too.
So if not quite "Baby Love," the Supremes' piping up is music to the ears of many privacy advocates. In fact — dare I say it? — in the latest Supreme Court ruling, activists and everyday Joes and Janes alike, may hear a symphony.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.
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