Monday, November 18, 2013

Safety vs. Privacy: The Fourth Amendment & Police License Plate Recognition Technology

by Debra Mares

Today’s technology 
enables police to easily capture and track the movements of anyone driving a car. State Police have been using license plate recognition (LPR) technology to record the license plates of any car an officer comes across while on patrol. LPR scans license plates from a camera that is either fixed at another location or mounted on a police car.  Some have accepted as a society, we will always be under surveillance as a means to protect our safety, whereas others are concerned about our diminishing right to privacy. 

Most of us drive down public roads and highways on a daily basis, whether it’s for work, family, personal needs or travel. On our commutes, we listen to audiobooks, talk on the phone, tune into talk radio, or zone out to music. For many, it is the only private time we have throughout the day. But how much privacy in our movements can we expect when traveling along a public highway?  Based on case lawwe might have very little.   

Newly exposed databases, such as The National Security Agency (NSA) collection of the world’s online communications and police collection of license plate datahave resurrected Fourth Amendment debates on safety versus privacy.  The Fourth Amendment provides that, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”  

Recently, the American Civil Liberties Union (ACLU) has expressed concern over the lack of limits on LPR technology and the amount of time our movements and license plates are being stored, which violate privacy rights.  On the other hand, law enforcement considers LPR technology a great asset to protect the safety of citizens and officers who serve the public. The data captured is used for various purposes, such as recovering stolen cars, searching against suspect databases, catching speeding cars, and identifying unauthorized cars in parking lots.  

The safety versus privacy arguments were recently addressed by the United States Supreme Court in United States v. Jones (2012) 132 S.Ct. 945which held the physical placement of a GPS tracking device on a car was a search subject to the restrictions of the Fourth Amendment.(Jones, 132 S.Ct. at 949).  The Jones case arose when law enforcement placed a GPS tracking device on the defendant Jones’ wife’s car. (Jones, 132 S.Ct. at 948).  Jones, who was the owner and operator of a District of Columbia nightclub, was suspected of trafficking narcotics and became the target of an FBI and Metropolitan Police Department task force investigation. (Id).  By using signals from multiple satellites, the GPS device tracked Jones’ location within 50 to 100 feet and stored the data in a government computer. (Id). After tracking the defendant’s movements for 28 days, Jones was indicted for drug trafficking conspiracy charges. (Id).

The Court in Jones found it was a physical intrusion on a person’s “effect” to place a GPS device on a car for the purpose of obtaining information and was therefore, subject to the protections of the Fourth Amendment. (Jones, 132 S.Ct. at 949).  In its holding, the Court cited the words of Lord Camden:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” (Entick v. Carrington, 95 Eng. Rep.l 807, 817 [C.P. 1765]).

License plate recognition (LPR) technology doesn’t rise to the level of a physical trespass because no device is placed on a suspect’s car.  Nonetheless, opponents are concerned about the amount of time the license plate information is stored.  Unfortunately, the Court in Jones refused to address whether the 28 day length of the GPS “search” violated Jones’ reasonable expectation of privacy. Notwithstanding, the Court invited a continuing discussion on reasonable timeframes for searches.

In non-trespassing cases, the Court has invited the analysis seen in Katz v. United States (1967) 389 U.S. 347.  The question becomes whether a person has a reasonable expectation of privacy.  In Katz, the government was electronically listening to and recording the defendant, who was speaking into a public telephone booth. (Katz, 389 U.S. at 511-12).  The Court found this to be a privacy violation because in a phone booth, “one who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”(Katz, 389 U.S. at 511-12)

LPR technology presents a different scenario than privatecalls from a phone booth because license plates are exposed to the public by the very nature they are affixed to a carAnd “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” (Katz, 389 U.S. at 351).  Ordinarily, visual observation of VIN numbers and license plates is constitutionally permissible. In New York v. Class, 475 U.S. 106 (1986), the Court examined whether the viewing of a VIN number visible through a car windshield in plain view was a violation of privacy.  The Court held it was not, reasoning, “[t]he exterior of a car . . . is thrust into the public eye, and thus to examine it does not constitute a ‘search.’” (Class, 475 U.S. at 114).  Similarly, LPR technology captures license plate numbers that are indeed thrust into the public eye on public streets.

In sum, as we drive down the roads exposing in plain view our whereabouts and license plates, we can expect little privacy.  Anyone watching, including police, news outlets,and private companies can photograph our cars and license plates to later search them against databases and track our movements.  It is the cost of today’s technology coupled with the need for safety, which seems to outweigh our right to privacy while traveling down public roads.

Friday, August 2, 2013

The Youth are Watching: What Message NYC's Mayoral Race Sends to Kids About Sexting


by Debra Mares
 
The recent scandal involving Anthony Weiner, the New York City Mayoral Candidate, brings to mind a serious issue we are facing with our youth: Sexting.  It also forces us to ask what message we are sending to kids about sexting in a climate when internet predators, cyber-bullying, child pornography, and child sex-trafficking is on the rise.  The most recent woman involved in Weiner’s scandal was not underage, but she certainly wasn't much older.  Sydney Leathers, who exchanged lewd online messages with 48 year-old Weiner who used the chat room name “Carlos Danger," was 22 years-old. According to both, they never met in person.

Studies have shown that 20% of teens between 14 and 18 years-old have sent a sexually explicit photo of themselves on their cell phone and almost 40% have received one.  Over 25% of those recipients said they forwarded it to others, even though about one-third of those forwarding knew there could be legal consequences.  Youth crime prevention programs explain to children and parents about "stranger danger" and the risks associated with social media and the internet.  It is widely discussed how sexting can destroy a reputation, affect a person's chances of being admitted to certain colleges or being hired for a job, and can even lead to kidnappings and crime.  Sexting also can lead to cyber-bullying and suicide, which happened in the widely known case involving Amanda Todd, a 15-year old Canadian girl who committed suicide by hanging herself after she was cyber-bullied in connection with sending inappropriate photos to a stranger. 

Young women sometimes initially engage in sexting out of curiosity and impulsivity, but the deeper problem stems from having low self-esteem.  If she doesn't view herself as worthy, lovable and competent, she can make false assumptions about herself and is likely to engage in a continuous pattern of self-destructive behavior.  75% of young women with low self-esteem engage in negative behavior, such as cutting, bullying, smoking, and drinking. And young women who have low self-esteem are four times more likely to participate in activities with men they later regret and feel shame or embarrassment about, such as sexting or sexual behavior. 

Our society already exacerbates the self-esteem problem our young women face.  Today, women are degraded in movies, video games, and song lyrics.  And much of our society tolerates it.  For example, many rap songs glorify the sexual exploitation of women.  The more it becomes accepted, the more it becomes a problem.  The cycle continues. And we don't need politics adding to this mess; we need them to help. This starts by having an honest conversation about the message we are sending to our kids by electing officials who engage in the same type of behavior we're trying to discourage – Sexting.  Afterall, the youth are watching...

What do you think?  Does NYC hold the cards in the message we are sending to our youth about sexting?

Wednesday, July 24, 2013

Safety vs. Privacy: The Fourth Amendment & Police License Plate Recognition Technology


by Debra Mares

Today’s technology enables police to easily capture and track the movements of anyone driving a car. State Police have been using license plate recognition (LPR) technology to record the license plates of any car an officer comes across while on patrol. LPR scans license plates from a camera that is either fixed at another location or mounted on a police car. Some have accepted as a society, we will always be under surveillance as a means to protect our safety, whereas others are concerned about our diminishing right to privacy.

Most of us drive down public roads and highways on a daily basis, whether it’s for work, family, personal needs or travel. On our commutes, we listen to audiobooks, talk on the phone, tune into talk radio, or zone out to music. For many, it is the only private time we have throughout the day. But how much privacy in our movements can we expect when traveling along a public highway? Based on caselaw, we might have very little.

Newly exposed databases, such as The National Security Agency (NSA) collection of the world’s online communications and police collection of license plate data, have resurrected Fourth Amendment debates on safety versus privacy. The Fourth Amendment provides that, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

Recently, the American Civil Liberties Union (ACLU) has expressed concern over the lack of limits on LPR technology and the amount of time our movements and license plates are being stored, which violate privacy rights. On the other hand, law enforcement considers LPR technology a great asset to protect the safety of citizens and officers who serve the public. The data captured is used for various purposes, such as recovering stolen cars, searching against suspect databases, catching speeding cars, and identifying unauthorized cars in parking lots.

The safety versus privacy arguments were recently addressed by the United States Supreme Court in United States v. Jones (2012) 132 S.Ct. 945, which held the physical placement of a GPS tracking device on a car was a search subject to the restrictions of the Fourth Amendment. (Jones, 132 S.Ct. at 949). The Jones case arose when law enforcement placed a GPS tracking device on the defendant Jones’ wife’s car. (Jones, 132 S.Ct. at 948). Jones, who was the owner and operator of a District of Columbia nightclub, was suspected of trafficking narcotics and became the target of an FBI and Metropolitan Police Department task force investigation. (Id). By using signals from multiple satellites, the GPS device tracked Jones’ location within 50 to 100 feet and stored the data in a government computer. (Id). After tracking the defendant’s movements for 28 days, Jones was indicted for drug trafficking conspiracy charges. (Id)
.

The Court in Jones found it was a physical intrusion on a person’s “effect” to place a GPS device on a car for the purpose of obtaining information and was therefore, subject to the protections of the Fourth Amendment. (Jones, 132 S.Ct. at 949). In its holding, the Court cited the words of Lord Camden:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” (Entick v. Carrington, 95 Eng. Rep.l 807, 817 [C.P. 1765]).

License plate recognition (LPR) technology doesn’t rise to the level of a physical trespass because no device is placed on a suspect’s car. Nonetheless, opponents are concerned about the amount of time the license plate information is stored. Unfortunately, the Court in Jonesrefused to address whether the 28 day length of the GPS “search” violated Jones’ reasonable expectation of privacy. Notwithstanding, the Court invited a continuing discussion on reasonable timeframes for searches.

In non-trespassing cases, the Court has invited the analysis seen in Katz v. United States(1967) 389 U.S. 347. The question becomes whether a person has a reasonable expectation of privacy. In Katz, the government was electronically listening to and recording the defendant, who was speaking into a public telephone booth. (Katz, 389 U.S. at 511-12). The Court found this to be a privacy violation because in a phone booth, “one who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.” (Katz, 389 U.S. at 511-12).

LPR technology presents a different scenario than private calls from a phone booth because license plates are exposed to the public by the very nature they are affixed to a car. And “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”(Katz, 389 U.S. at 351). Ordinarily, visual observation of VIN numbers and license plates is constitutionally permissible. In New York v. Class, 475 U.S. 106 (1986), the Court examined whether the viewing of a VIN number visible through a car windshield in plain view was a violation of privacy. The Court held it was not, reasoning, “[t]he exterior of a car . . . is thrust into the public eye, and thus to examine it does not constitute a ‘search.’” (Class, 475 U.S. at 114). Similarly, LPR technology captures license plate numbers that are indeed thrust into the public eye on public streets.

In sum, as we drive down the roads exposing in plain view our whereabouts and license plates, we can expect little privacy. Anyone watching, including police, news outlets, and private companies can photograph our cars and license plates to later search them against databases and track our movements. It is the cost of today’s technology coupled with the need for safety, which seems to outweigh our right to privacy while traveling down public roads.

Sunday, July 7, 2013

This Ain't Your Average Staycation: How An Entrepreneur Spends His Days Off


I recently had the pleasure of a staycation with one of my oldest friends. I met Scotty in a Speech & Debate class at UCLA when I was 21.  He recently reminded me of his first memory-Me wearing a brown sweater, jean cut off shorts & clogs. I reminded him of mine-his awkward delivery of his speech on Vitamin K.  He wasn't the greatest orator, but from that day on, it lead to a life long friendship.  Scotty and I took different career paths. I went to law school and he became involved in entreprenurial adventures, investing, media & music. He built an empire, selling one of his companies at a young age, allowing him to retire; yet he kept working.  He's one of the most ambitious, successful and disciplined individuals I know. 

His side-by-side Porshe 911 and Maserati may speak to that on the surface, but it's the structured and disciplined life I've observed on our staycation that is the true testament to his success.  His daily regimen and hard working attitude leaves no room for failure.  I've captured some of the lessons I've learned and hope to continue after this staycation.  Read & follow with caution: they are not for the weak-minded.

-wake up at 5, retire at 11, every day without exception
-hit the gym first thing in the morning, everyday 
-end the day with conversation & tea
-avoid abusing substances until you're 60 & have raised 2 kids, then consider it your right!
-eat right, fresh & preservative-free
-spend money first on things that return an investment
-Never buy more than you need, even if you have the means 
-Have a staycation whenever possible
-keep connected with friends & don't forget their birthdays
-walk fast, not like a turtle
-leave your phone at home once in a while
-never settle when it comes to finding your lifelong partner
-end relationships that are not going anywhere
-get sun often, but no more than an hour at a time
-be transparent & communicate well
-always give back with no strings attached & don't tell anyone
-even though life is not fair, learn how to live yours the best!

Thanks Scotty for a wonderful staycation and some lessons along the way! Xo

Wednesday, June 19, 2013

The Limits of Modern Science in the Courtroom

by Debra Mares
Most people become lawyers because they’re neither mathematicians nor scientists. Yet many criminal cases involve forensic science, which is widely accepted by juries and serves as the basis of many crime television shows. A forensic pathologist can tell us the cause of death. A gas chromatograph can tell us a driver’s blood alcohol level. DNA can tell us the identity of a sexual assault perpetrator. A polygraph can tell us whether a suspect is telling the truth. A plethysmograph can tell us an offender’s sexual preference.  Physics can tell us how a collision occurred.  Today, scientific evidence is often admitted in court without legal argument; however, it took a long journey for it to become so widely accepted.
In Frye v. United States (D.C. Cir. 1923) 293 F. 1013, the court addressed the admissibility of polygraph evidence in court. Frye resulted in a holding that set forth the standard for determining the admissibility of all scientific evidence. The Frye standard required the science involved to be generally accepted in the relevant scientific community. (Id. at p. 1014).
In 1993, the United States Supreme Court replaced the Frye standard with the Daubert standard. In Daubert v. Merrell Dow Pharmaceuticals (1993) 509 U.S. 579, the court outlined the factors determining admissibility of expert scientific testimony, which included: (1) whether the theory or technique on which the testimony is based is capable of being tested; (2) whether the theory or technique has a known rate of error in its application; (3) whether the theory or technique has been subjected to peer review and publication; (4) the level of acceptance in the relevant scientific community of the theory or technique; and (5) the extent to which there are standards to determine the acceptable use of the theory or technique. (Id. at pp. 591-594).
Using these factors, state and federal courts throughout the country began to reexamine bans on polygraph tests. In California, Evidence Code section 351.1, subdivision (a) excludes the results of polygraph examinations in criminal cases, unless all parties stipulate to admit them. Although polygraph results are inadmissible, Evidence Code section 351.1, subdivision (b) allows the admission of statements made during a polygraph, provided they meet a hearsay exception. In practice, the interviewee often makes statements about the crime during a “post-interview,” which may be helpful to the prosecution and otherwise admissible as a party admission under Evidence Code section 1220 or a declaration against interest under Evidence Code section 1230.
As legally accepted as science is in the courtroom, it still has its practical limits, as any effective trial counsel appreciates. For example, it is critical to select jurors for a trial who are not biased regarding the use of science in a criminal case. Some people simply don’t trust modern-day science and consider it “junk.” It is important to help jurors understand that scientific evidence is not gathered and analyzed as quickly or easily as it appears in their favorite television show.  Limited budgetary resources often hinder widespread use of scientific analysis in cases.
Crime shows set the bar high when it comes to what juries expect real-life forensic examiners to do and how fast they expect them to do it. Crime laboratories work on a case-by-case basis and must comply with strict regulations and guidelines to maintain their licensing credentials. New cases come into the laboratory and compete for attention with old cases, which are oftentimes cold, having been sitting in evidence vaults for years waiting for analysis. DNA results in the real world are not revealed within the timeframe of a 60-minute television episode. Rather, they may take days, weeks or months, depending on the availability of resources and experts.
Remaining humble about scientific results will help achieve just results in our criminal justice system. Science does not always tell us the motive or intent of a perpetrator. If a suspect’s bodily fluid is found inside a victim’s sexual organs, it doesn’t tell us whether there was consent. Even if a suspect’s fingerprint is found inside a store recently robbed, it doesn’t necessarily tell us when he was there.
Despite its limits, one of the greatest uses of science is to vindicate a suspect. Polygraph tests are often used early on in investigations or at the suggestion of defense attorneys who believe that passing results will raise doubt in a prosecutor’s mind or motivate discussion of a plea bargain. DNA testing can often be used to rule out a suspected perpetrator. Any effective trial counsel will never under or overestimate the value of science, nor lose sight of the importance of old-fashioned police work and eyewitness testimony to corroborate strong scientific findings. 

Sunday, April 21, 2013

My Walk With Dave

When New York Times Bestselling Author Dave Pelzer arrived outside Van Dyne Gym at California Baptist University, he waited patiently for me as I finished answering logistical questions for the day. He had arrived for his speaking engagement at Stop The Pain, a Teen Summit I was co-hosting. I saw him there, but it didn't dawn on me who he was. His tall build, military presence, and handsome appearance told me he was important, but it wasn't until he removed his aviator style sunglasses, that I realized it was Dave.

The mania of the day immediately calmed.

As Dave and I walked the campus, his high intuition immediately caught my attention. We had barely met, but it seemed as though he knew me for years.  He delivered a personal message, telling me to make a plan and make it happen.  "Focus," he said, on delivering a unique message to the youth - not only on a local level - but a national one. The pressures of being an author, nonprofit director and prosecutor began to lighten.

Twenty minutes later, I sat in Van Dyne Gym and listened to Dave deliver a similar message to a crowd of 750 teens and parents. He even used the "F" word - FOCUS. Focus on your plan and make it happen.

After our presentation, my walk with Dave continued as he signed books and built up youth with similar words of encouragement.  I could have sat the entire day talking about goals, writing and resilience, but Dave dashed off into the wind to hit March Air Force base and I dashed back to the Summit to handle logistics.

At the end of the day, I took another walk; this one was with Alfonso, a student volunteer. I learned that after his father had been murdered, he left the Army and decided to become a doctor. He wanted my opinion about his idea of opening substance abuse treatment centers for at-risk Hispanic youth. I delivered Dave's message to him in my own words - Do what's right in your heart and make a plan from the start.

I'm old enough to know that Dave's message is a universal one, but wise enough to know that he saw something special in me. Just like I saw something special in Alfonso. It became apparent that Dave's high intuition, from being a former Air Force pilot used to making snap judgments, was still lingering in the air. Afterall, March Air Force Base was only a few miles away.

Thank you Dave for making the Summit and my day special!

Sunday, March 17, 2013

Don't Spend it All In One Place

RIP Nana Celia Mares
by Debra Mares
She gave her time and money generously with the message, "don't spend it all in one place."  And indeed, she too followed this advice.  Born in Guadalajara, she lived through WWI & II, traveled from Mexico by train at nine-years-old after leaving an orphanage, learned English, and persevered through years working as a factory seamstress in the Los Angeles Garment District, sewing bathing suits.

She settled in a house atop Echo Park's Historic Stairs, loved animals including her rooster, and married Juan Mares, a respectable migrant worker who raised the bar of restaurant service waiting tables at Los Angeles’ landmark Taix French Restaurant.  She believed a good wife exuded qualities of both a mother & a mistress.

She prayed the rosary daily and couldn’t believe what I got myself into going to law school.  She taught me how to live holistically, drink tea, work hard, help others, iron well, apply lipstick, and appreciate a good mariachi and cerveza from time to time.

Again, "she's spending time in another place," this time - her resting place.  We'll miss you dearly Nana, but your spirit will never leave us.  Besos to her surviving family, Key, Auntie Coochie, Mom, Titi, Lu, Chi-chen, O & D.

Juan & Celia Mares

Thursday, February 7, 2013

Hate Kills

by Debra Mares

Everyone loses when a police officer goes down in the line of duty.  They are brave men and women who protect the innocent.  And this morning, we lost one of Riverside's finest allegedly at the hands of a former Los Angeles Police Department (LAPD) officer in connection with a complicated web of retaliation against the LAPD.  According to reports in the media, former LAPD officer Christopher Dorner shot at two LAPD officers in Corona early this morning, then ambushed two Riverside Police Officers who were sitting in their car at an intersection, leaving one dead.  Dorner continues to unleash his rage on LA, Orange and Riverside Counties and he explains it in an online Manifesto.

In his 20+ page Manifesto, Dorner lays out his memories dating back to the first time he was bullied and called the "N" word on the playground in the first grade.  He goes on to detail reported incidents of racial discrimination towards blacks and jews along with police brutality towards civilians while working at the LAPD.  According to him, these purported injustices culminated into him being fired, which is the alleged catalyst for his killing rampage, which started Sunday night killing Monica Quan, the daughter of a retired LAPD officer who Dorner accused of covering up violence and ethics violations within their department, and her fiancĂ© in Irvine.

The Manifesto reminded me of something.  One week ago, I was speaking to middle school students in Riverside.  When I asked them what were the biggest problems they were facing in their neighborhood, three boys raised their hands - drugs, violence, and police brutality.  Both the school teacher and I were surprised at the lone student's "police brutality" response.  Although it was one young man's perception, it was a serious one as evidenced by the potential effect it can have on our society and those who protect and serve.

I assured the young man I've never personally seen any incidents, reminded him how brave our police officers are, and we discussed the investigative procedures in place when there is a use of force.  He looked at me surprised.  I felt I was the first person to discuss these issues with him in a responsible manner.

It's important to work hard to promote tolerance within our youth and criminal justice system, so "horrendous murders" don't become "necessary evils," in the eyes of someone like Dorner.  Ruth Treeson, a Holocaust Survivor and Author of The Long Walk always reminds our youth, "Anger unchecked, becomes hate.  And folks, hate kills."  Indeed, we are witnessing that unfold today.

All of our thoughts are with every police officer who serves and protects in one of the noblest jobs I know.

"There's bad apples in every profession - law,  politics, medicine, criminal justice system, sports, religion.  They are the exception, NOT the rule," The Mamacita Murders.