Wesley M Oliver

Material Witness Detentions After Al-Kidd

Wesley M. Oliver — Wed, 17 Aug 2011 16:17:50 PDT

The Supreme Court’s decision in Ashcroft v. al-Kidd was a tempest in a teapot. The Court concluded only that a witness was no less susceptible to arrest under the Federal Material Witness Statute if the government was interested in prosecuting the witness himself. Unremarkably under the holding, it is no more difficult to detain an al-Qaeda member who witnessed a crime than it is to detain an innocent bystander who witnessed a crime. The fact that a criminal suspect can be held, however, raises concerns beyond the scope of the narrow question before the Court. If the government’s real interest is bringing a case against the witness, the government will be far less circumspect in its decision to seek an arrest warrant for the witness and will not have an incentive to hold the witness in the least restrictive conditions. Vague standards that assume the government’s good faith may be sufficient when the prosecution’s principal interest is the witness’ effective testimony. These standards are insufficient when material witnesses are potentially suspects. The egregious facts of the ¬al-Kidd case reveal that Congress must establish clearer criteria for the arrest and treatment of material witnesses.

America's First Wiretapping Controversy in Context and As Context

Wesley M. Oliver — Thu, 02 Jun 2011 08:14:04 PDT

The Modern History of Probable Cause

Wesley M. Oliver — Mon, 09 May 2011 08:02:33 PDT

It is frequently assumed that probable cause, roughly as we understand it today, has, since time immemorial, been the standard allowing an officer to search or arrest. The reality is that probable cause has change a lot since the Bill of Rights was drafted. In the mid-nineteenth century, probable cause was no more than a pleading requirement in criminal cases -- and never has been more than a pleading requirement in criminal cases. Victims of crimes alone were able to seek arrest or search warrants by swearing that they had suffered an injury and that they had probable cause to believe that the person identified committed the crime, or that evidence of the crime could be discovered in the place identified. The victim did not describe the factual basis of his suspicion. Probable cause as a pleading requirement for victims became inconsistent with late nineteenth century social regulations. In the latter half of the nineteenth century, states and the federal government created and punish victimless crimes. Prohibition, pornography and prostitution became targets of new government regulations. These new crimes required a mechanism to allow government searches and arrests without a victim's complaint. At the same time, professional police departments were emerging in American cities. This article accounts for the evolution of probable cause from the early nineteenth century pleading requirement to the modern evidentiary threshold requirement by looking at policing in New York City in the second half of the nineteenth century. While modern social regulations required a standard that public investigators could satisfy, distrust of the police prevented allowing police to simply plead probable cause as victims had done. A standard requiring police to offer facts supporting probable cause was thus born.

Brief of Amicus Curiae Wesley MacNeil Oliver in Support of the Petition for Writ of Certiorari

Wesley M. Oliver — Tue, 03 Aug 2010 09:00:32 PDT

The United States Court of Appeals for the Ninth Circuit recently held that a lawsuit could proceed against John Ashcroft in his individual capacity for the way he detained material witnesses after the Terror of September 11, 2001. Ashcroft allegedly used those he believed to be terrorist suspects as material witnesses when he lacked adequate suspicion to bring formal charges. All of these “witnesses” otherwise qualified for detention under the federal material witness detention statute. The Ninth Circuit concluded that this “pretextual” use of the material witness detention statute clearly violated the Fourth Amendment as it circumvented the probable cause threshold required to hold suspects. The court reasoned that no court had previous held this pretextual use of the statute to be unlawful because Ashcroft’s use of the statute was “novel” and “unprecedented.”

This historical claim is false. From 1850 to 1930, material witness detentions were used quite frequently – most often to hold those whom law enforcement officials suspected of criminal activity. In fact, reformers during the era objected to the use of the detentions to hold innocent persons, but seemed to have little or no problem with the use of the power to temporarily hold those suspected of criminal activity. In New York, a law in 1883 forbid the detention of any “witness” whom law enforcement officials did not also suspect of criminal activity. In short, the public was tolerant of the way Ashcroft is alleged to have used the material witness detention statute in this case. The public was outraged when it was used in the only way the Ninth Circuit claims it can be used consistent with the Constitution.

This brief in support of John Ashcroft’s petition for a writ of certiorari was filed on July 23, 2010.

The Neglected History of Criminal Procedure, 1850-1940

Wesley M. Oliver — Wed, 26 Aug 2009 22:36:11 PDT

Originalism has focused the attention of courts and academics on Framing Era history to interpret constitutional limits on police conduct. Previously unexplored sources reveal, however, that Framing Era limits on officers were expressly abandoned as professional police forces were created in the mid-nineteenth century and charged with aggressively investigating and preventing crime. The modern scheme of judicially supervised police investigations was then implemented after corruption and scandals of the 1920s. The development of modern criminal procedure has a rich historical background, but it has almost nothing to do with the events of the Framing Era.

Editorial, Rulings Lose Track of Innocent

Wesley M. Oliver — Tue, 14 Apr 2009 13:04:45 PDT

Editorial, Recordings Can Protect Those Secretly Taped

Wesley M. Oliver — Tue, 14 Apr 2009 13:03:50 PDT

Editorial, Iowans are Serious About Caucus Process

Wesley M. Oliver — Tue, 14 Apr 2009 13:00:14 PDT

Editorial, How Iowa Does It: Caucusing, Unlike Voting Takes Time—Some Caucuses Continue for Hours

Wesley M. Oliver — Tue, 14 Apr 2009 12:59:08 PDT

Editorial, Here’s Why I Was a Campaign Volunteer

Wesley M. Oliver — Tue, 14 Apr 2009 12:57:41 PDT

Portland, Prohibition and Probable Cause: Maine's Role in Shaping Modern Criminal Procedure

Wesley M. Oliver — Tue, 07 Apr 2009 07:56:00 PDT

At the time the Constitution was written, police officers had very little power. In most cases they were required to wait for a complaint from a victim to arrest, or a warrant from a magistrate to perform a search of any kind. Victims had extraordinary discretion in this era. Generally, only victims could seek arrest or search warrants and they were required only to allege that they had probable cause to support the arrest or search they sought. In most cases, an officer could not obtain a warrant even if he could provide the facts supporting his suspicions. Warrantless arrests exposed the officer to a very real threat of civil liability. Officers' arrest powers were substantially increased in the mid-nineteenth century as they were granted immunity from civil liability for arrests made in public, so long as the arrest was supported by probable cause. This new standard accompanied the creation of professional police forces, but in many states was immediately preceded by another legal development - prohibition. A new search standard was needed to enforce prohibition as this new crime had no victims. The new standard permitted anyone to obtain a warrant to search for alcohol, but the affiant had to provide the magistrate with the factual support for his belief. Probable cause thus went from a pleading requirement that victims alleged to a factual threshold that an affiant could satisfy. Very soon thereafter courts would accept this new probable cause standard as the basis for police arrests. Maine was source of this first prohibitory law - a law that was copied by the majority of American states in the mid-nineteenth century. This article traces how the search and seizure provisions of Maine's early liquor laws were created and how they influenced the development of modern police powers throughout the nation.

With an Evil Eye and an Unequal Hand: Pretextual Stops and Doctrinal Remedies to Racial Profiling

Wesley M. Oliver — Tue, 07 Apr 2009 07:45:03 PDT

A Round Peg in a Square Hole: Federal Forfeiture of State Professional Licenses

Wesley M. Oliver — Tue, 07 Apr 2009 07:44:01 PDT

Toward a Better Categorical Balance of the Costs and Benefits of the Exclusionary Rule

Wesley M. Oliver — Tue, 07 Apr 2009 07:42:43 PDT

The Rise and Fall of Material Witness Detention in Nineteenth Century New York

Wesley M. Oliver — Tue, 07 Apr 2009 07:41:25 PDT

Magistrates’ Examinations, Police Interrogations, and Miranda—Like Warnings in the Nineteenth Century

Wesley M. Oliver — Tue, 07 Apr 2009 07:40:01 PDT

The New York legislature in the early-nineteenth century began to require interrogators to warn suspects of their right to silence and counsel. The Warren Court, in Miranda v. Arizona, did not invent the language of the warnings; rather, it resurrected the warnings that were no longer given in New York after the latter half of the nineteenth century. The confessions rule, a judicially created rule of evidence much like the modern voluntariness rule, excluded many statements if any threat or inducement was made to the suspect. Courts in the early-nineteenth century, however, were willing to accept confessions notwithstanding an improper inducement if the suspect had been given the now-famous warnings. The warnings remained in place until the newly elected New York judiciary began to retreat from the strict version of the confessions rule that prompted interrogators to give those warnings. The threat of losing statements to the confessions rule was greater than the threat that suspects would exercise the rights of which police advised them - at least until the judiciary substantially weakened the confessions rule.

Dred Scott and the Political Question Doctrine

Wesley M. Oliver — Tue, 07 Apr 2009 07:37:51 PDT