Berman & Asbel, LLP

October 2010 Archives

FBI attaches GPS device then demands its return after car owner finds it

As reported in, a California student, Yasir Afifi, recently found a GPS tracking device in his car.  The student posted pictures of the device online which triggered discussion about whether it was real.  The FBI confirmed the device was real when agents showed up at Afifi's apartment and demanded that he return the device to them.  (I have to say it took some chutzpah for the agents to do that.)  Afifi, who by the way is an American citizen, is cooperating with authorities voluntarily and says he has no idea why the FBI wanted to put him under surveillance, the report said. One might wonder whether it is legal for the government to plant tracking devices on cars without a warrant.  It turns out that it is legal.  In a case decided by the U.S. Court of Appeals for the 9th Circuit this year, United States v. Pineda-Moreno, the Court held that it is not a violation of the 4th Amendment to attach tracking devices as long as the vehicle is not in an area in which there is a reasonable expectation of privacy.  The subject in Pineda-Moreno had his car parked in his driveway but the Court ruled that since there was no fence or gate, the driveway was only "semi-private."  For the 4th Amendment to apply, there would have to be barriers in place preventing access to the driveway.  We were discussing this case at lunch and my law firm partner wondered whether posting of signs that said "No Government Agents Allowed Except Postal Carriers" would have made a difference. Readers should not rely on this note as legal advice but should consult with a competent attorney licensed in their state. You can also find more information about our firm in our websites on Family Law and Wills and Estate Planning and Administration.

Military Funeral Protest Case Argued before Supreme Court today

Today the U.S. Supreme Court hears arguments in the case of Snyder v. Phelps.  As the Supreme Court's blog puts it, the issue is: Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased? Basically, the plaintiff is Albert Snyder, the father of a Marine who was killed in Iraq in 2006.  At the funeral, Fred Phelps and his cohorts from Westboro Baptist Chuch showed up to demonstrate very loudly and holding signs such as "God hates the USA" and "Thank God for dead soldiers."  Phelps and company believe that the America is a sinful nation and they claim that American deaths in Iraq and Afghanistan are divine punishment for what they see as American immorality in the form of tolerance for homosexuality and abortion, among other things. The Snyder family, not surprisingly, was deeply hurt and upset about this taking place at the funeral for a loved one who gave his life for his country.  Mr. Snyder filed suit for intentional infliction of emotion distress and won a trial verdict of $5 million in damages.  The Court of Appeals, however, reversed and threw out the verdict on the basis that the behavior of Phelps and company was protected under the Free Speech provisions of the First Amendment. Apparently there is no dispute that Phelps and company did comply with local laws on how far away from the service they had to be while protesting.
Mr. Snyder is arguing, among other points, that other free speech cases involved protests directed at institutions or public figures but he is a private citizen who was holding a private religious service to honor and bury his son and thus had a right to his privacy.  Mr. Snyder also argues that for the courts to allow Phelps to carry on like this at a private religious service violates the bereaved family's right to Freedom of Religion, also guaranteed under the First Amendment.
One point made by the plaintiff is that while the protesters have opportunities to demonstrate and express their views anytime and anywhere, he only had one chance to hold a solemn funeral service for his son and that the defendants ruined it.

Leahy proposes retired Justices fill in when current Justices recuse

As newest Justice Elena Kagan took her place when the Supreme Court began its new term this week, it was announced that of the 51 cases the Court has agreed to consider so far this term, Kagan will recuse herself from 25 of them.  This is due to her prior involvement in those cases as the Solicitor General of the United States.  In those cases, only 8 Justices would hear the case which could mean a number of 4-4 results.  A 4-4 vote means that the result from the lower Court of Appeals is affirmed but without the definitive power of a majority of the Supreme Court so the issue could come up again.Senator Patrick Leahy (D-VT) has introduced a bill that provide that when an active Justice recuses himself or herself from a particular case, the Court's active Justices may, by majority vote, designate a retired Justice to participate in decision of that case.  The current living retired Justices are Sandra Day O'Connor, David Souter and John Paul Stevens.  Under current law, retired Supreme Court Justice may be designated to sit on cases heard in the Circuit Courts of Appeals but not in the Supreme Court.As reported in an article in the Legal Times blog, there are concerns about how it would be decided by the Court which retired Justice would be chosen to sit on a particular case and skeptics of the idea say that litigant parties might attempt game the system of substitution to impact the outcome of the case.Currently, 39 states allow retired Justices of their state Supreme Courts to be designated to sit on cases when an active Justice on the Court recuses.  So far Leahy's proposal has not drawn much support.

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