6/24/2012
Cracks in the Mosaic Theory: Why it doesn't work
I don't know who first thought this idea up, but Orin Kerr seems to name it in this law review article. He describes it as law enforcement doing every search or seizure step constitutionally and the result as a whole still being unconstitutional. This would be a departure from the normal mode of search and seizure analysis because in the normal mode if every search or seizure step is constitutional the result as a whole is constitutional. It is worth noting that the mosaic theory is not a theory which has roots in a controlling Supreme Court decision.
The best way that I have come up with to describe the current method of constitutional analysis is a simple mathematical equation. Every search or seizure in the entire equation is assigned a "1" if constitutional or a "0" if unconstitutional. The equation proceeds as follows.
1 X 1 X 1 X 1 X 1 X 1 X 1 = 1 (Constitutional)
1 X 1 X 0 X 1 X 1 X 1 X 1 = 0 (Unconstitutional)
If every one of the searches and seizures is constitutional, then the entirety is constitutional. If any one of the searches or seizures is unconstitutional, then the entirety is unconstitutional. It is a straight forward, rational way to approach constitutionality. Obviously, the proposed "mosaic theory", as presented, fails to model in this manner because it would look like this.
1 X 1 X 1 X 1 X 1 X 1 X 1 = 0 (Constitutional = Unconstitutional)
The mosaic theory is really nothing new. It's aggregation as constitutional violation. As such, it is a subset of an individual constitutional test. Anyone who has argued the constitutionality of a traffic stop has dealt with this. A traffic stop which is constitutionally valid can be made unconstitutional if it is extended beyond a reasonable time to accomplish its initial purpose. This is an aggregation of time and it is similar to the aggregation of time which is pointed to in the Jones concurrences and is cited as a basis for the mosaic theory. In that case, the concurrence would have allowed initial placement of the gps tracker but ruled it unconstitutional after a certain amount of time had aggregated.
What both the traffic stop and the Jones concurrences point to is the fact that there are a number of factors in each of the search and seizure events which comprise the entirety. In other words, the model is actually something like this:
(1 X 1 X 1) X (1 X 1 X 1 X 1) X (1 X 1 X 1) = 1
(1 X 1 X 0) X (1 X 1 X 1 X 1) X (1 X 1 X 1) = 0
(A) X (B) X (C) = ENTIRETY
Applying this to a traffic stop, we'll say A is the seizure of the vehicle and its passengers, B is the search of the vehicle, and C is the search of the driver's person. Since everything in B and C is fine we'll concentrate on A. Let's say the sub-elements in A are (1) reason for stop, (2) behavior during the stop, and (3) length of the stop. The reason for the stop is valid (speeding). The officer's behavior during the stop is polite and concentrates on the ticket. In the first model the officer releases the car and driver after a 15 minute stop. In the second model the officer sits in his car with the driver's license for 55 minutes until a drug dog shows up and is run past the vehicle (40 minutes longer than the ticketing process takes). This aggregation of time is unconstitutional and therefore the seizure of the vehicle and passengers is unconstitutional and therefore the ENTIRETY is unconstitutional.
To be clear, aggregation does not have to be about time. In U.S. v. Edwards the 4th Circuit ruled a search unconstitutional not because the search was without constitutional basis, but because of the aggregated factors of the locale where the search was done and the manner in which it was carried out.
The mosaic theorists claim the aggregation as the entirety and in one sense they are right. It is the entirety in that if it fails the entirety fails too. However, this is true of every constitutionally significant issue and sub-element of that issue. Stating that one sub-element is the whole is nonsensical. To consider it in reverse, if the traffic stop does not aggregate to the point that the seizure of the vehicle and passengers is unconstitutional and therefore A=1, this does not mean that B=1 or C=1.
The mosaic theory is badly flawed. However, aggregation analysis will become more and more important in the modern world. To base 4th Amendment analysis on whether something can be viewed by the world at large is becoming an increasingly poor way to frame things in a world where the phone in your pocket identifies where you are 24 hours a day, your ISP can track your internet activity, and you are required by law to hand over information about yourself to the government and private industry. Unless courts are going to find that the putative "reasonable person" is a guy living in a cabin in the Rockies hand typing his libertarian manifesto, in short order any "reasonable person" will be observable for the vast majority of his life. We must adjust; we just need a better model than the mosaic theory.
Labels: 4th Amendment, Legal Theory
6/20/2012
The Science of a Traffic Stop
Heisenberg and Schrodinger are driving down the highway at a prodigious rate of speed. As they pass mile marker 34, a state trooper hits them with a radar, chases them down, and pulls them over.The trooper walks up to the driver's side window and finds Heisenberg behind the wheel.
Trooper: "Sir, do you know how fast you were going when you passed that mile marker?"
Heisenberg: "Well, I can't because I now know where I was."
The trooper detains them and does a consent search of the car. In the trunk he finds a dead cat. He goes back to his car where the two arrestees are sitting in the back seat.
Trooper: "Did you know there is a dead cat in the trunk of your car?"
Schrodinger: "Well, now I do."
6/18/2012
If Every Attorney's Incompetent . . .
In Virginia, as part of a plea agreement, the ability to appeal a decision can be waived. However, the right to habeas the defense attorney for ineffective assistance of counsel cannot be waived. Consequently, a prosecutor added language to her plea agreement waiving appeals, but not wanting to make the plea agreement overly broad (and therefore potentially voidable) used language something like this: "Defendant waives all possible appeals except petition for a writ of habeas corpus for ineffective assistance of counsel."
Defense counsel looked at this plea agreement with a bit of incredulity. The question asked over and over again was "Why are you trying to get my client to file a habeas against me?"
When a few of them griped to me about it, I created the following paragraph and offered to include it in any plea agreement if they wanted it:
I hereby recognize that ALL defense attorneys are incompetent and provide ineffective assistance prior to, during, and after trial. They are biased, provide improper advice, do not know the law, and do not have my best interest in mind when they recommend that I plead guilty, no contest or that I should go to trial. Despite all this, every bit of which I agree that I knew before this plea agreement was entered, I plead guilty by my own decision, agree to this plea agreement without paying any attention to any advice from my attorney, waive all direct appeals, and waive any habeas corpus actions based upon any grounds and specifically upon the grounds of ineffective assistance of counsel, because I have chosen to entirely ignore any advice counsel has given me.
Surprisingly, no one has asked for it to be inserted in any of their plea agreements yet.
6/15/2012
Overheard in Courtroom: Maturity Thy Name Be Not Orange
A male and female are sitting in the courtroom waiting for court to start in their orange jump suits:Female: How old are you?
Male: 30.
Female: There have been a lot of 30 year olds flirting with me lately.
Male: Something wrong with that?
Female: No. I like older guys. They're more mature. . . Except maybe you, since you're in jail and all.
Male: So what are you a Tennessee fan?
Female: No, I'm more of a Kentucky fan, but I do like watching Tennessee during football season.
6/11/2012
Books Which Will Be Useless in Virginia as of July 01
The Rules Of Evidence are Coming!
And Chaos follows Behind.
6/10/2012
News Around the Web
2) An explanation of how the Vatican Court system works and where the defendants serve their time.
3) An argument as to why a Sudanese woman shouldn't be stoned for adultry.
4) The BBC investigates Mexican trade in women.
5) Someone is stealing corn cobs in Japan.
Labels: A Catholic Moment, Islam, Japan, News, Obama, Prostitution
6/10/2012
New Format - Same as Ye Olde Format
I had gone with a format I found online which rotates stories I preferred at the top. It wasn't perfect, but it worked okay. Then it started to act a little strange and some of the graphics would not come up anymore. So, I tried a couple other formats which I had found online and apparently, Blogger has changed itself so these would not work now (they worked back when I tested them against the one I ended up using).
The formats Blogger offered did not work too ell and often appeared differently depending upon which browser I checked them with. The very fancy newest formats which Blogger is offering worked wonderfully but did not seem to leave any room for links.
So, it's back to this basic format that I wrote myself way back when I was still trying to write webpages.
6/05/2012
VINDICATION: The 1st Amendment Trumps the Virginia Bar
You'll recall a while back that I discussed the Virginia State Bar's belief that it could violate the federal constitution's guarantee of freedom of speech by requiring bloggers to not blog about anything which happened in open court which involved their clients.
Once it got in front of a panel of judges that got shot down unanimously.
It's good to know that some people understand that becoming a member of the Bar isn't an unconstitutional pact of silence.
Viva Circuit Court Judge Kenneth R. Melvin, Circuit Court Judge Alfred D. Swersky and Circuit Court Judge Von L. Piersall Jr. They got it exactly right.
6/04/2012
Statutory Language: Must We Do Shall?
I've been going through the new statutes which have been passed by the General Assembly so that I can brief our local law enforcement on them and present them at at local CLE (when you are in deepest darkest Far Southwest Virginia you do your own CLE's or you drive 6-10 hours east to get your hours). I've noticed some stylistic trends which which the General Assembly has become obsessed with. In particular, every time the General Assembly amends or alters a statute whatever gnomes are in charge of typing the new statute up are going through the statutes and changing any place a number is written out to plain numbers (ie. 35 instead of thirty five). Apparently the accepted wisdom has changed from a written number being preferable to the numerical symbol being preferable. Who knows why the accepted wisdom changed? I figure that some senior statute writing gnome has a reason, but the reality is that someone probably preferred numbers and came up with an excuse. It doesn't matter to me either way; both work and if it makes life more satisfying to the statute writing gnomes the General Assembly keeps working in the dungeons of the capital building, more power to them. In fact, I've been impressed by the patience which has been shown. They've not attempted to change all the statutes at once, they've been satisfied with making the stylistic changes as the opportunity presented itself.
Of course, there's always the exception which proves the rule . . .
§ 54.1-4005. Sale of goods pawned.\I read that over three times, sure that there had to be a meaningful change in the statute somewhere. Nope. It's purely stylistic preference. I assumed the number change was just because the opportunity presented itself. This left the must / shall change. My definition of both is "non-discretionary requirement to do." To be sure, I checked and Merriam Webster online listed each as a synonym of the other.
No pawnbroker shall sell any pawn or pledge item until (i) it has been in his possession for the minimum term set forth in the memorandum, but not less thanthirty30 days, plus a grace period offifteen15 days and (ii) a statement of ownership is obtained from the pawner. If a motor vehicle is pawned, the owner of the motor vehicle shall comply with the requirements of § 46.2-637. In the event of default by the pawner, the pawnbrokermustshall comply with the requirements of § 46.2-633. Otherwise, the pawnbrokermustshall comply with the requirements of § 46.2-636 et seq. All sales of items pursuant to this section may be made by the pawnbroker in the ordinary course of his business.
I can see someone looking at this and thinking "Must seems more passive mandate. Let's use an active mandate like shall." That might even be a good idea EXCEPT that the Virginia appellate courts have quite often interpreted "shall" as "should." I don't think that line of reasoning should apply here, but the fact that it exists at all makes the decision to change "must" into "shall" less of a good choice than it might have seemed.
Ambush in Bartlette
Chapters 1 - 13
Chapters 1 - 13
Law & Theory
- LAWS
- Va.'s Versions of Mayhem (malicious wounding et al): 4 In One Statute ~ Graphic
- Aggravated Malicious Wounding
- The Moped Exception
- Rape by Lie: 1 ~ 2 ~ 3
- No Intent Needed
- Arresting in a House
- Common Law Trespass
- Certificate of Analysis Introduction
- Probable Cause: Car Passengers
- Obstruction of Justice Limited
- Stealing Electronic Items
- Stolen Value: Price Tags
- Stolen Value: No Price Tags
- Stolen Value: Electronic Items
- No Weekend Jail on Felonies
- Obstruction of Justice Limited
- No Trifurcation
- No More Beer at the Barbeque
- Respondeat Superior
- DUI & Reckless Driving
- Can You Steal From the Dead?
- Outlawry Outlawed
- Felony 2d Degree Murder
- Banishment
- Computer Fraud
- Insta-Deputy
- PROCEDURE
- Using Statements Made During Plea Negotiations: 1 ~ 2a ~ 2b ~ 2c
- Invoking Right to Attorney in Virginia
- Who Prosecutes Misdemeanors?
- Expungement
- Surrebuttal
- Virginia's Reasonable Doubt
- Reasonable Doubt II
- Instruction: Right to Arm
- Virginia Castle Doctrine1 ~ 2 ~ 3 ~
- Dismissed with Prejudice
- SENTENCING
- I. Limitations on Right of Judge to Alter a Sentence
- II. Limitations on Right of Judge to Alter a Sentence
- III. Limitations on Right of Judge to Alter a Sentence
- Probation & Suspended Time
- Advisement in Virginia
- Jury v. Judge (sentencing roles)
- Limits on Evidence Presentable to a Jury
- Jury Sentencing Possibilities
- &CETERA
- Witnesses & Writ of Actual Innocence
- Domestic Battery & Firearm Possession
- Domestic Battery & Testimony I
- Domestic Battery & Testimony II
- Domestic Battery & Testimony III
- Domestic Battery & Testimony IV
- Shall Doesn't Mean Shall
- Just Following Orders
- Lycurgus Not Welcome in Virginia
Practice Tips
Specific Cases
- Jones:Trespass = Search
- Shatzer:4th Amendment Expiration Date
- Gant: Limiting Car Searches
- Montejo: No more 6th Amendment Protections
- Padilla & the Prosecutor
- Ventris: Allowing Unconstitutional Questioning
- Carroll Doctrine
Legal Theory
- Best Way to Choose a Judge
- What's a Prosecutor?
- Defense Attorney Purpose
- Plea Agreement Actualities
- The Big 4: Why I can't Go To Jail: 1 ~ 2
- Liquor Use Laws
- How to Fix Va.'s Court of Appeals
- Punishment Scale
- Punishment Scale Explained
- Punishment: There but for the Grace of God
- Heavy Sentences (1)
- Heavy Sentences (2)
- Probation
- Change Felonies to Misdemeanors
- Do Justice?
- Kentucky v. Virginia
- Must Prosecutors Disprove Affirmative Defenses?
- Drug Schedules & Punishment
- Defendants & Situational Sincerity
- 1) Immorality in Pleading Not Guilty
- 2) Immorality of Pleading Not Guilty
- Posner v. Hart & Strict Liability
- More Posner & Strict Liability
- Pre-Stare Decisis
- Let Juries Find People Innocent
- Tell Jury Elements Pretrial
- Falsity of Malum Prohibitum (1)
- Falsity of Malum Prohibitum (2)
- Falsity of Malum Prohibitum (3)
- Brady
- Writ of Spite & Hatred
- Various Riot Acts
- Tazers
- Finding of Innocent
- No Appellate Oral Arguments
- CrimJustice Purpose
- Pro Se Defendants
- Misdirecting the Police
- Stress Seekers?
- Plea Agreement
- Faking Probable Cause I
- Faking Probable Cause II
- Faking Probable Cause III
- Faking Probable Cause IV
- Legalese: Name Changes
- How Could We Best Select a Judge
- RICO & Bin Laden
- Requirement of Defense Attorneys
- Should Lawyers Make Clients Confess?
- Crummy Hired Defense Attorneys
- Noble Defense?
Back When I was a Defense Attorney
FEB03
Jury
Jury
JUN03
A Week in the Life
A Week in the Life
JUL03
A Week in the Life
OCT03
A Week in the Life
DEC03
A Week in the Life
JAN04
5 Events
A Needed Sign
A Week in the Life
Trial Desperation
A Week in the Life
A Week in the Life
Quick Panic
FEB04
Supress Motion
A Week in the Life
A Week in the Life
MAR04
A Week in the Life
Closing Argument
APR04
A Week in the Life
A Week in the Life
A Week in the Life
A Week in the Life
MAY04
A Week in the Life
A Week in the Life
A Week in the Life
JUN04
Chocolate Chip Marijuana
A Week in the Life
High School Critique
JUL04
A Week in the Life
Cripple v. Cop
01 Long Week
02 Long Week
03 Long Week
04 Long Week
05 Long Week
I'm a Narc
AUG04
Frustrating Day
Damn Yankee Defense
A Week in the Life
SEP04
Angry Relative
01 Long Week
OCT04
01 Long Week
02 Long Week
03 Long Week
04 Long Week
-----
01 Long Week
02 Long Week
03 Long Week
NOV04
Client Families
DEC04
01 Long Week
02 Long Week
03 Long Week
04 Long Week
05 Long Week
06 Long Week
Surprise at Prelim
Confronted
JAN05
A Sentencing Hearing
Sales Lady Visits
FEB05
Purse Search Brief
Violent Insane Client
MAR05
Affidavit of Truthfulness
Juvenile Detention Visit
Moments in the Life
Fail to Visit
APR05
Trial of the Century
MAY05
Transcript: Court Argument I Won
A Day in Court
Moments in the Life
Angry Jury Day
Angry Jury 02
JUN05
Eureka Sentencing Moment
My Own PI
Innovative Jail Phone Call
A Moment in Court
A Moment in Court
JUL05
Huh?
Raccoon Attack
AUG05
Picking on a Prosecutor Intern
Moments in the Life
SEP05
Victory by Speedy Trial
OCT05
Kicking Myself
A Day in the Life
Insane Client & 15 Deputies
Torture by Judge
A Federal Habeas
NOV05
Invisolawyer
Petition Freak Out
Moments in the Life
Moments in the Life
State Habeas
DEC05
Moments in the Life
JAN06
Jury Trial Fizzle
FEB06
A Bench Trial
Bittersweet "Victories"
A Prosecutor Tries to do Right
MAR06
What Just Happened?
Va. Worse than Conn.
Illness as a Defense Attorney
Failed Prison Visit
APR06
Heard in a Courthouse
Appellate Court Argument 01
Va. Court of Appeals
MAY06
Heard in Court
JUN06
Bad Press
Entire History of a Trial
Bad Press 02
JUL06
I Must be too Good
AUG06
Announce Becoming Prosecutor
The Last Life in a Week
Monday
Tuesday
Wednesday
Thursday
Friday
Client Communication
~~~~~~~~~~~~~~~
~~~~~~~~~~~~~~~
CYA Letter: Felony Client
CYA Letter: Appeal
-----
Dear Mr. Jailhouse LawyerConversation between Inmates about Lawyers
Innocent Client Pleads Guilty
Client Parents
Time as a Prosecutor
JAN07
The New Office
FEB07
Different Court Diferent Behavior
Competency
MAR07
Cats
Ma'am I'm the Prosecutor
JUN07
I know nothing
23 Felonies
JUL07
Cross
Cross II
2d Simplest Explanation
OCT07
Jury
FEB08
CrimLaw Prosecutorial Corollary #1
MAY08
Paranoia
JUN08
Why Not Drop?
JUL09
Buy Me Dinner First
AUG09
Jury Sentencing Argument
SEP09
Is Litter Patrol Jail?
OCT09
Paperwork Closing Argument
APR10
Bubonic Bob & the Creative Judge
JUL10
Finding the Perfect Witness
APR12
Small Town Cop : Big City Lawyer
JUN12
Maturity Ain't Orange
Criminal Law
Sentencing Law and Policy
FourthAmendment
Law of Criminal Defense
CrimProf
White Collar Crime Prof
4th Circuit
...
Simple Justice
Defending People
a public defender
Underdog
Indefensible
DUIblog
Southern District of Fla.
Criminal Defense
Harris Co. Crim Justice
...
Seeking Justice
Crime and Consequences
The Chicago Syndicate
Patterico's Pontifications
The Magistrate's Blog
Trials & Tribulations
Charon QC
Changing the Court
Virginia Blogs
SW Virginia Law
Va Poli Blogs
Vivian Page
Bearing Drift
Not Larry Sabato
Worthwhile
Bloggingheads.tv
Gruntled Center
WindyPundit
day by day
The Faculty Lounge
Legal Scholarship Blog
PrawfsBlog
Justice & Drugs
Ernie the Attorney
Bag & Baggage
TWIT Live
Spill.com
Tekzilla
Sentencing Law and Policy
FourthAmendment
Law of Criminal Defense
CrimProf
White Collar Crime Prof
4th Circuit
...
Simple Justice
Defending People
a public defender
Underdog
Indefensible
DUIblog
Southern District of Fla.
Criminal Defense
Harris Co. Crim Justice
...
Seeking Justice
Crime and Consequences
The Chicago Syndicate
Patterico's Pontifications
The Magistrate's Blog
Trials & Tribulations
Charon QC
Changing the Court
Virginia Blogs
SW Virginia Law
Va Poli Blogs
Vivian Page
Bearing Drift
Not Larry Sabato
Worthwhile
Bloggingheads.tv
Gruntled Center
WindyPundit
day by day
The Faculty Lounge
Legal Scholarship Blog
PrawfsBlog
Justice & Drugs
Ernie the Attorney
Bag & Baggage
In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.
Tech &
Vlogs
This Week in TechVlogs
TWIT Live
Spill.com
Tekzilla
Archive
January 2003
February 2003
March 2003
April 2003
May 2003
June 2003
July 2003
August 2003
September 2003
October 2003
November 2003
December 2003
January 2004
February 2004
March 2004
April 2004
May 2004
June 2004
July 2004
August 2004
September 2004
October 2004
November 2004
December 2004
January 2005
February 2005
March 2005
April 2005
May 2005
June 2005
July 2005
August 2005
September 2005
October 2005
November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May 2006
June 2006
July 2006
August 2006
September 2006
October 2006
November 2006
December 2006
January 2007
February 2007
March 2007
April 2007
May 2007
June 2007
July 2007
August 2007
September 2007
October 2007
November 2007
December 2007
January 2008
February 2008
March 2008
April 2008
May 2008
June 2008
July 2008
August 2008
September 2008
October 2008
November 2008
December 2008
January 2009
February 2009
March 2009
April 2009
May 2009
June 2009
July 2009
August 2009
September 2009
October 2009
November 2009
December 2009
January 2010
February 2010
March 2010
April 2010
May 2010
June 2010
July 2010
August 2010
September 2010
October 2010
November 2010
December 2010
January 2011
February 2011
March 2011
April 2011
May 2011
June 2011
July 2011
August 2011
September 2011
October 2011
November 2011
December 2011
January 2012
February 2012
March 2012
April 2012
May 2012
June 2012
July 2012
August 2012
September 2012
October 2012
November 2012
December 2012
January 2013
February 2013
March 2013
April 2013
May 2013
February 2003
March 2003
April 2003
May 2003
June 2003
July 2003
August 2003
September 2003
October 2003
November 2003
December 2003
January 2004
February 2004
March 2004
April 2004
May 2004
June 2004
July 2004
August 2004
September 2004
October 2004
November 2004
December 2004
January 2005
February 2005
March 2005
April 2005
May 2005
June 2005
July 2005
August 2005
September 2005
October 2005
November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May 2006
June 2006
July 2006
August 2006
September 2006
October 2006
November 2006
December 2006
January 2007
February 2007
March 2007
April 2007
May 2007
June 2007
July 2007
August 2007
September 2007
October 2007
November 2007
December 2007
January 2008
February 2008
March 2008
April 2008
May 2008
June 2008
July 2008
August 2008
September 2008
October 2008
November 2008
December 2008
January 2009
February 2009
March 2009
April 2009
May 2009
June 2009
July 2009
August 2009
September 2009
October 2009
November 2009
December 2009
January 2010
February 2010
March 2010
April 2010
May 2010
June 2010
July 2010
August 2010
September 2010
October 2010
November 2010
December 2010
January 2011
February 2011
March 2011
April 2011
May 2011
June 2011
July 2011
August 2011
September 2011
October 2011
November 2011
December 2011
January 2012
February 2012
March 2012
April 2012
May 2012
June 2012
July 2012
August 2012
September 2012
October 2012
November 2012
December 2012
January 2013
February 2013
March 2013
April 2013
May 2013




