Well, I started the week with a reference to Peter, Paul & Mary's musical ouevre, and I'm finishing it with one to the Mamas and Papas. I've had a wonderful time on vacation -- or, presumably, I will, since I'm writing this three days before I leave for it -- but in anticipation of that, I'm going to let others do the heavy lifting today.
We'll start with Orrin Kerr of the Volokh Conspiracy, who takes a look at a recent 9th Circuit decision where the court had upheld a search warrant for child pornography on the sole basis that the defendant had received an email from a known overseas distributor of it. The majority had determined this was sufficient probable cause, and the dissenter argued that it wasn't, because there was no showing that the defendant was aware that the email contained child pornography, or even aware of the fact that he had received the email. Kerr makes a persuasive argument that all three members of the court got it wrong. The 4th Amendment is focused on the items sought to be seized, not the defendant's guilt: the appropriate test is simply whether there's probable cause to believe that the items could be found on the defendant's computer. Whether the defendant knew they'd be there is irrelevant. It's an interesting read.
As some of you may have heard, there's an ongoing furor over the recent sentencing of two border patrol agents to over a decade in prison for shooting a drug smuggler and then trying to cover it up. Doug Berman's Law and Sentencing Policy blog has details on the case. Most of the outrage has been directed at the length of the sentence -- although that might change with yesterday's news that the prosecution may have hidden the fact that the smuggler, who was granted immunity, was subsequently arrested in another drug case before the trial in this one, and the prosecutor sorta kinda forgot to tell the defense about that.
As the prosecutor in the trial noted at the time of sentencing, however, the sentence was pretty much mandated by the guidelines Congress established, and the mandatory 10-year sentence it imposed for any crime involving a gun. Many of the people getting exercised about the agents' plight couldn't have given a flip about black kids serving twenty-year-plus sentences for possession of half a kilo of drugs. If it's true that a conservative is a liberal who's been victimized by crime, it may be that a liberal is a conservative who's been accused of one, or at least one who's had an opportunity to see the awesome power the government can bring to bear on someone it wants to lock up.
Finally, on a lighter note, last week we discussed the Ohio Supreme Court's decision upholding the state law prohibiting consensual relations between adult stepparents and stepchildren from an attack that they were rendered unconstitutional by the US Supreme Court's decision in the sodomy case a few years back, Lawrence v. Texas. So it's only appropriate to conclude with a piece by Howard Bashman over at Law.com on how Lawrence has made the 11th Circuit a battleground for lawsuits about sex aids. The piece is thick with sexual innuendo -- it's titled, "11th Circuit's Abuzz With Sex Toy Litigation" -- and the double entendres come hard and fast, but it's a fun read. And, it turns out, the latest blow was delivered by the 11th Circuit when it recently ruled that public morality was a sufficient rational basis, after Lawrence, to uphold an Alabama law prohibiting the commercial distribution of devices "primarily for the stimulation of human genital organs."
The decision was handed down on Valentine's Day.