In 2007, the 8th Circuit approved of a search warrant in United States v. Kattaria based upon “reasonable suspicion” rather than the requisite probable cause because the search sanctioned by the warrant was merely thermal imaging rather than a full-blown, physical entry.  The 8th Circuit, en banc, issued a decision allowing the evidence without relying on the lower standard search warrant, thus removing the old decision from the books.

Orin Kerr dissects the concurrence by Chief Judge Loken, which includes this line despite his joining the majority to circumvent his prior panel decisions:

On further reflection, I have concluded that the panel was unwise to borrow the concept of “reasonable suspicion” to reflect the quantum of probable cause that should be required in this situation. Reasonable suspicion is not focused to the task at hand, and it has never been applied to the warrant-issuing process. Rather, the question for the issuing magistrate (and reviewing courts) when considering an application like Agent Perry’s initial warrant affidavit should be whether there is probable cause to believe that search of specific property — the heat being emitted from a home — in a specific manner — by exterior thermal imaging — for purely investigative purposes will uncover evidence of on-going criminal activity. Utility records showing abnormally high electric power usage are strong evidence supporting such an application but, without more, are unlikely to establish probable cause because of the many innocent uses of electricity. Cf. United States v. Olson, 21 F.3d 847, 850 (8th Cir.), cert. denied, 513 U.S. 888 (1994).  But the “something more” should simply be enough particularized suspicion to justify the minimal intrusion caused by the exterior thermal imaging of heat emissions, without regard to whether there is probable cause to issue a warrant to conduct a full physical search.

The notion that there should be sliding scale of proof relative to the degree of intrusiveness still has some legs.  I can’t help but wonder why intrusions never feel the same to federal judges as to the family whose home is the target.  But under the facts of Kattaria, relating to the use of thermal imagine which is certainly unintrusive, the rationale finds comfort under a rule of life rather than a rule of law:  No harm, no foul.

After completing a plea allocution in the Eastern District of New York the other day, the Magistrate Judge looked at me as he walked off the bench and mumbled, “whatever happened to no harm, no foul?”  As if it was my choice that my client was being prosecuted.

The plea was extraordinarily good from a criminal law point of view, the defendant facing a few lifetimes in prison based on a loss valuation of a few billion dollars.  Instead, the deal (which came after rejecting the government’s “unbelievably great deal that couldn’t be rejected”) was for a plea to a hypertechnical regulatory violation involving no loss to any person anywhere anytime ever.  Even with the joys of the Sentencing Guidelines taken into account, this was as close to a guarantee of probation as federal courts allow.

But as the defendant stumbled through the allocution, each word burning in his throat as he spoke it, the “sweet” deal tasted horribly bitter.  It’s not that the defendant hadn’t committed the hypertechnical violation, though the statute was unclear how exactly one would violate it with felonious intent since it was one of those malum prohibitum laws that bore no moral culpability absent certain circumstances that didn’t exist here.  But more importantly, no one was harmed and no one could have been harmed by the defendant’s conduct.  Similarly, there was no gain to the defendant.  It simply happened that way, and that was enough.

The Magistrate’s statement as he left the bench was directed at me, but sought an answer that only the government could give.  Why demand that the defendant plead guilty to this ridiculous offense or go to trial? If the defendant was so evil and dangerous that a conviction after trial warranted decades in prison, the government would never have agreed to a plea that allowed him to walk out of the courtroom.  But why, then, demand a plea at all?  Why can’t the government, having obtained an indictment of a person who, upon reflection, was not part of the conspiracy, concede a mistake and let it go?

The easy answer is that the government does so because it can.  I was ready, willing and able to try the case, and had every intention of doing so.  My client, on the other hand, was less thrilled at the prospect.  He had a prior conviction after trial, with another lawyer, and harbored little faith in the system.  He knew too well that juries convict.  He was confident in his innocence.  He had no confidence in the jury.  The potential costs of a trial, emotional, financial and practical, overwhelmed him.

Why is it that the original 8th Circuit panel in Kattaria felt so comfortable applying a sliding scale to search warrants based upon minimal circumstantial intrusiveness due to “no harm,” while defendants are convicted nonetheless?  I have every expectation that the absence of harm will put the defendant in good stead at time of sentence, but it begs the question of why there need be a sentence at all? 

The answer is one of the fundamental failings of the criminal justice system, having reared its ugly head lately too many times to ignore.  Our courts, and to the extent they reflect our sensibilities, our society, have such low expectations of our government that they will forgive them all but their most egregious transgressions.  Incompetence in both law enforcement and prosecution is now a protected governmental function.  Can anyone imagine Thomas Jefferson approving of this?

Yet citizens are given no latitude whatsoever once they are brought into the system.  There is no conduct so harmless, so trivial, so hypertechnical, that the government decides to give them a pass.  We have a law criminalizing just about everything, and to the extent some variation  on human conduct was missed along the way, we have imaginative prosecutors prepared to twist laws into pretzels to make them work, lest someone escape punishment when their conduct doesn’t “feel right.” 

It’s obviously disingenuous for our government to argue that it should be allowed to make mistakes, when those same mistakes by a citizen would bring an indictment down on their heads. Saying I’m sorry and I’ll do better next time isn’t an option for defendants.  Of course, government justifies it by proclaiming that it acts for the public good, and is therefore more deserving than the public whose good it protects.  But it’s different for the defendant who has done no one any harm. 

Whatever happened to no harm, no foul?  It’s alive and well, but only for our government.