Pleading the Fourth

But just as they did in Philadelphia when they were writing the constitution, sooner or later, you've got to compromise. You've got to start making the compromises that arrive at a consensus and move the country forward.

Colin Powell

"My get up and go has got up and went." So warbled the late folk singer Pete Seeger. Sleep deprived, jet lagged and now under the weather, a charming colloquialism describing nothing that an intense upper respiratory affords. Stuck inside on a beautiful day, depressed....



Wait, the final days of the Supreme Court's 2013 session are here! It's time for - law porn!!

You've been warned.

I'm going to skip  AMERICAN BROADCASTING COS., INC., ET AL. v. AEREO, INC., FKA BAMBOOM LABS, INC.  because I don't watch network news (although Justice Scalia's tart but respectful dissent is fun in a contrarian sort of way). FIFTH THIRD BANCORP ET AL. v. DUDENHOEFFER, ET AL. has a cool name but involves fiduciary duties as they relate to an employee stock option in a defined-contribution retirement plan. Just wow. NATIONAL LABOR RELATIONS BOARD v. NOEL CANNING ET AL.  is being billed as a unanimous slap down. It's not. Justice Scalia, in a pithy concurrence, asks quite reasonably how the court can decide that one plus two equals three days of recess...sometimes, but it depends. 

No, we're here.... Okay, I know that we are me and my dogs CJ and Jed (named after characters in The West Wing, which figures, right? Both are, at this moment, sleeping soundly) because the hit numbers on these entries are paltry. Why do I write them? Let me tell you a story, passed on by my late father some years ago.


An engineer friend of his took his young son to a pancake breakfast sponsored by...well, I forget. Plopping down next to them at a cafeteria-style table was a burly, hairy biker complete with thick beard, offensive tattoos and an appetite. Biker proceeded to drown his pancakes in a generous cascade of syrup. The engineer's kiddo asks, quite reasonably - "How come you're pouring so much syrup on your pancakes?" "Because," the biker replied, "I fucking love it."

So there.

The Court decided this week that officers who have arrested someone and discover a cell phone on their person (don't you just love cop talk?) may not search it without a warrant. Certain public safety exceptions apply, such as if the information relates to a dangerous person who has fled, etc. The CJ (not my dog. Here I mean Chief Justice John Roberts) writes with a particular flair, at one point suggesting that cell phones "are such a pervasive and insistent part of daily life that a visitor from Mars might conclude that they are an important feature of human anatomy." He reminds us "There's an app for that" has entered the popular lexicon. Like we had to hear that from him. Buried in the linguistic frivolity is a Supreme Court wrestling with technology that begins with a misnomer - correctly labeling the cellphone as a "mini computer that happen to also have the capacity to make and receive phone calls."

What will Law Enforcement's reaction be? First, LE is not monolithic. I'd venture to say that some officers will bristle at the Court's latest adventure in making their jobs harder. I suppose there is a kernel of practicality in wanting to look at someone's call history, photos and such. 

As has been pointed out in a number of venues, the point of the Constitution is the preservation of liberty. If I have reasonable grounds to search a cell phone I have only to secure it, obtain a warrant and proceed. Cumbersome, time-consuming.... Overly technical?

So?