Nota Bene

CNN reports:

A federal appeals court Friday ordered the dismissal of an ACLU lawsuit challenging President Bush’s domestic surveillance program.

President Bush secretly instituted the National Security Agency’s domestic spying program after 9/11.

The plaintiffs — a group of journalists, scholars and legal advocates — had no legal standing to pursue their claims because they could not show they were targeted by the National Security Agency’s warrantless spying program, the court decided in a 2-1 vote.

TalkLeft advises that the legal fight over this surveillance is not over yet:

At least one other suit is pending, and standing to bring the lawsuit isn’t at issue and and thus is unlikely to be the basis for dismissal.

Readers may remember that Albany, NY defense lawyer Terry Kindlon, raised a similar challenge to the wiretapping in United States v. Aref (the so-called “terrorism” case from the Northern District of New York).

In December, 2005, while Aref’s case was pending, Terry learned from a New York Times article that his client had been tapped by the NSA. He immediately made some demands, followed up with some motions and, basically, got nowhere (although he did enjoy receiving a Government pleading containing a caption at the top of the first page, a signature at the bottom of the third page, and nothing but blank space (marked CLASSIFIED) in between).

Justice Janice Rogers Brown on Terry Stops in drug neighborhoods:

The facts of this case lead me to wonder if Terry’s prudent constraints on police conduct have been forgotten in our frustration over city life plagued with drug trafficking and violent crime. As a result, what we are now tempted to enforce is not Terry but the rule that, in a high-crime neighborhood, being young, male, and black creates reasonable, articulable suspicion. See David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 IND. L.J. 659 (1994). Here, four men were stopped. There was no constitutionally adequate justification for the initial confrontation. Three of them were innocent of criminal activity, but nevertheless faced the indignity of being placed against a rail and searched. Vaughan Walker testified he started walking away as soon as he saw the police car because he “didn’t feel like being harassed.” The lesson of today’s decision is clear: he has no choice.

When the ostensibly neutral principles set forth in Terry are thus applied, what was created to be a carefully outlined exception to the Fourth Amendment’s warrant and probable cause requirements is transformed into a general warrant—a police license to search out crime by playing the odds, relying on hunch, intuition, street smarts, and stereotypes. The odds are good, although the crimes charged are too often unrelated to the “suspicion” that led to the stop.

You can read the entire opinion in United States v. Goddard (No. 05-3080 Jun. 22, 2007) here. (Via TalkLeft).

Today the United States Supreme Court issued a unanimous opinion concerning the rights of car passengers to assert Fourth Amendment challenges when a police officer initiates a traffic stop:

When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may challenge the constitutionality of the stop.

Brendlin v. California (No. 06-8120) 38 Cal. 4th 1107, 136 P. 3d 845, vacated and remanded.