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.

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."

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.

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.

Books Which Will Be Useless in Virginia as of July 01

The Rules Of Evidence are Coming!

And Chaos follows Behind.

News Around the Web

1)  Al-Jazeera is doing an expose about how much the Obama administration is prosecuting whistleblowers.

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.

New Format - Same as Ye Olde Format

I put this format back up finally.

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.

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.

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.\
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 than thirty 30 days, plus a grace period of fifteen 15 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 pawnbroker must shall comply with the requirements of § 46.2-633. Otherwise, the pawnbroker must shall 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 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.

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.