As bizarre as it may sound even to those lawyers whose entire careers haven’t given them even five hours in America’s criminal courts, some of the most energetic Episcopal Church – LGBT adversaries pissed off because I refuse to denounce – or apologize for – a 2004 article that I wrote to fellow lawyers in which I recommended that the U.S. Constitution be amended to define and restrict “marriage” to a union between one man and one woman, are getting bent out of shape when they’re noticed and documented in public places such as one was this morning, in just one of many examples, in the parking lot of a supermarket that’s home to my pharmacy.
Since some of these folks seem to think that they have a “reasonable expectation of privacy” in public places while they assume others do not, I’ve excerpted here a few passages from a court decision that does a pretty good job of articulating the general legal principles that apply. Please note that the numbers that accompany the following excerpted paragraphs are included for the reader’s convenience.
American law changes over time, though. The United States Supreme Court’s decision in June of 2018 that the U.S. Constitution requires a warrant to track folks by use of historical cellphone data, is one example. That said, the law as it’s presented in the following excerpts from the U.S. Court of Appeals opinion in this case, remains largely the same as it was when the opinion was issued.
“When the government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user,” Chief Justice John Roberts wrote in the 5-4 opinion.
PLEASE NOTE that I’ve not reviewed the trial transcript in this case. But it’s fair to assume that if those who “masterminded” and ran this nation-wide criminal conspiracy to smuggle foreign nationals past those tasked with defending this nation’s borders – if they had offered any evidence at trial of their ability and inclination to screen for potential national security threats the hundreds of foreign nationals they were loosing on the American people, that the Court’s opinion would have said something about it.
The complete opinion of the U.S. Court of Appeals is available at :
United States of America, Plaintiff-Appellee, v. Maria Del Socorro Pardo Viuda De Aguilar, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Anthony Clark, A/k/a Antonio Clark, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Sister Darlene Nicgorski, School Sisters of Saint Francis, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Philip M. Willis-Conger, a/k/a Phillip M. Conger, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. John M. Fife, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Margaret Jean Hutchison, a/k/a Peggy Hutchison, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Wendy Lewin, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Ramon Dagoberto Quinones, Defendant-Appellant
Date: April 14, 1989
Citation: 883 F.2d 662 (9th Cir. 1989)
Finally, the court rejects appellants’ contention that international law entitled the aliens to reside in the United States without presenting themselves to immigration authorities and filing applications for political asylum. Appellants succinctly describe their international law claim: “[V]iolations by the United States of its obligations under the 1967 [U.N. Refugee] Protocol excused the refugees being assisted by appellants from presenting themselves to the INS and established ‘good cause’ for their illegal entry and presence.”
66 As the Protocol is not a self-executing treaty having the force of law, it is only helpful as a guide to Congress’s statutory intent in enacting the 1980 Refugee Act. Consequently, the district court correctly concluded that the Protocol is not “other law” under section 1324. Furthermore, the Protocol provides no evidence that Congress intended to permit aliens to reside in the United States without presenting themselves to immigration authorities. Quite the contrary. Indeed, appellants acknowledge that the Protocol, incorporating Article 31(1) of the 1951 Convention, requires that an alien refugee present himself to immigration authorities “without delay” following illegal entry into a foreign land. The district court therefore properly rejected appellants’ argument that the Act does not require presentment following an illegal entry.
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Appellants also argue that the trial court erred by rejecting their suggested jury instruction that “[t]ransporting a person who one knows to be an illegal alien out of purely humanitarian concern is not a crime.” Appellants cite United States v. Moreno, 561 F.2d 1321 (9th Cir.1977), as authorizing this instruction.
108 Nothing in the Moreno court’s dicta suggests that it is proper to instruct the jury that humanitarian initiative is a complete defense to a transportation charge. Instead, the court sought to identify another instance of transportation which was only incidentally related to furthering the alien’s presence in this country. Appellants’ various acts of transportation are hardly incidentally related to furthering the aliens’ illegal status. Appellants transported the aliens throughout the country as part of their plan to shelter illegal aliens out of the INS’s grasp.23
Appellants are confusing intent and motive. So long as appellants intended to directly or substantially further the alien’s illegal presence, it is irrelevant that they did so with a religious motive. See United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir.1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970).
109 Appellants next argue that their religious motivation in transporting the illegal aliens would negate the requisite intent to directly or substantially further the alien’s presence in the United States. They conclude: “Proof that the [appellants’] transportation was not intended to further the alien’s illegal presence, but to fulfill the [appellants’] religious commitment to assist those in need, would thus constitute a defense to [section 1324(a)(2) ].”
The government, on the other hand, presses for a less stringent test, arguing that “[t]he Supreme Court has never extended the Yoder-type balancing analysis beyond the context of essentially regulatory legislation.” The Court in Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 1540, 32 L.Ed.2d 15 (1972), notes the government, emphasized that its ruling did not involve a case in which any harm “to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.” We need not determine the degree of scrutiny that properly should be applied to this case. Even applying the most exacting scrutiny, appellants’ first amendment claim cannot withstand analysis.
150 In United States v. Merkt, 794 F.2d 950 (5th Cir.1986) (Merkt II ), cert. denied, 480 U.S. 946, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987), the Fifth Circuit confronted the claim of a first amendment exemption to sections 1324(a)(1) and (a)(2). After initially doubting the need to apply a form of strict scrutiny to defendants’ constitutional claim, the court nonetheless engaged in such an analysis and concluded that the claim lacked merit. First, the court was unconvinced that section 1324 unduly burdened defendants’ free exercise of religion, noting: “Representatives of Catholic and Methodist clergy testified at the pretrial hearing and trial. None suggested that devout Christian belief mandates .participation in the ‘sanctuary movement.’ Obviously, [defendants] could have assisted beleaguered El Salvadorans in many ways which did not affront border control laws….” Id. at 956. Second, the court found that the government had a compelling need to uniformly enforce its border control laws:
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151 The statute under which [defendants] were convicted is part of a comprehensive, essential sovereign policy. We cannot engraft judicial exceptions to the illegality of transporting undocumented El Salvadorans without thereby de facto revising, for the unique benefit of El Salvadorans, the legal conditions under which they may abide in this country. This would create [chaos].
153 The reasoning in Merkt persuasively disposes of appellants’ constitutional claim in the present case. Unadorned, appellants’ assertions are no different from those rejected by the Fifth Circuit. Even assuming that appellants have proved that the enforcement of sections 1324 and 1325 interfered with their religious beliefs, they cannot escape the government’s overriding interest in policing its borders.
156 If the Government attempted to accommodate into its immigration policy [appellants’] religious beliefs, the Government’s efforts would result in no immigration policy at all. As testimony from [appellants’] witnesses indicated, the moral obligation to assist others crosses religious and denominational lines. These widely-held beliefs allow adherents to exercise considerable discretion and would permit religious individuals to form personal immigration policies.
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158 In conclusion, appellants’ free exercise claim is without merit. The government’s interest in controlling immigration outweighs appellants’ purported religious interest,34 and an exemption would not be feasible.35 As a result, the district court did not err in denying appellants’ motion to dismiss the charges. (emphasis added by this lawyer)
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161 The critical aspect of appellants’ suppression argument is their suggestion that the first amendment and the fourth amendment necessarily are intertwined in the context of an informer’s infiltration of a church. Based upon first amendment principles, appellants contend that society is prepared to recognize as reasonable churchgoers’ expectations that “they could meet and worship in church free from the scrutiny of federal agents and tape recorders.” A churchgoer need not “assume the risk that apparent fellow worshipers are present in church not to offer homage to God but rather to gain thirty pieces of silver.”
162 Appellants’ theoretical premise is that the first amendment provides them with an additional expectation of privacy beyond that afforded by the fourth amendment. The first amendment requires this heightened expectation of privacy because a “community of trust” is the essence of a religious congregation and the ability of a person to express faith with his fellow believers “withers and dies when monitored by the state.” Appellants argue that government “spying” on religious activities necessarily chills a person’s ability to exercise freely his religious faith.
163 Appellants’ first amendment argument relies upon the principle that under certain circumstances the government’s investigation of a political organization may impermissibly burden first amendment rights. In N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 466, 78 S.Ct. 1163, 1174, 2 L.Ed.2d 1488 (1958), the Court concluded that the state could not compel a politically active organization to disclose its private membership lists because such disclosure would have a “deterrent effect on the free enjoyment of the right to associate.” In a similar context, the Court has stated that where “an investigation … intrudes into the area of constitutionally protected rights of speech, press, association and petition,” “an adequate foundation for inquiry must be laid before proceeding in such a manner as will substantially intrude upon and severely curtail or inhibit constitutionally protected activities or seriously interfere with similarly protected associational rights.” Gibson v. Florida Legislative Investigative Committee, 372 U.S. 539, 546, 557, 83 S.Ct. 889, 892, 899, 9 L.Ed.2d 929 (1963).
164 Although we agree with appellants that the first amendment is relevant to our inquiry in this case, “appellant[s’] allegation that evidence admitted against [them] should have been suppressed is a Fourth Amendment claim, rather than a First.” Abell v. Raines, 640 F.2d 1085, 1087 (9th Cir.1981). The constitutional issues raised herein are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.1984) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
165* The government justifies its placement of the informants under the so-called “invited informer” or “misplaced confidence” cases, the cases permitting consensual recording of conversations without warrants. See United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). These cases assume that a defendant would have had a legitimate expectation of privacy in his words but for the informer’s presence. Hoffa, 385 U.S. at 301, 87 S.Ct. at 413 (“A hotel room can be the object of Fourth Amendment protection as much as a home or an office.”); Lewis, 385 U.S. at 211, 87 S.Ct. at 427 (“Without question, the home is accorded the full range of Fourth Amendment protections.”); White, 401 U.S. at 749, 91 S.Ct. at 1125 (defendant’s home).
167 In White, the government informer discussed illegal narcotics transactions with defendant in defendant’s home, the informer’s car, and a restaurant. Agents monitored these conversations using a radio receiver. The Court described Hoffa as having held that “however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with authorities.” 401 U.S. at 749, 91 S.Ct. at 1125. Accordingly, the Court upheld denial of defendant’s motion to suppress.
169 The invited informer doctrine is part of a greater principle of fourth amendment jurisprudence: “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 2581-82, 61 L.Ed.2d 220 (1979). In Smith, the Court cited Hoffa, White, and Lopez, to support its holding that the police do not need a warrant to install a pen register to record the telephone numbers dialed from a person’s private residence. Id. 442 U.S. at 744, 99 S.Ct. at 2582. The Court reasoned that in using the telephone, a person “voluntarily convey[s] numerical information to the telephone company and ‘expose[s]’ that information to its equipment in the ordinary course of business.” Id. Consequently, a person “assume[s] the risk that the [telephone] company would reveal to the police the numbers he dialed.” Id.
170 Smith also relied heavily on the Court’s prior decision in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), where the Court held that a person has no legitimate expectation of privacy in financial information “voluntarily conveyed to … banks and exposed to their employees in the ordinary course of business.” Id. at 442, 96 S.Ct. at 1623. Once again, the Court reiterated the rule that a person “takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.” Id. at 443, 96 S.Ct. at 1624. This is so, reasoned the Miller Court, “even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id. (emphasis added). Most recently, the Court has held that the government can retrieve a person’s trash without a warrant because he voluntarily turns it over to garbage workers for collection. See California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988).
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188 Appellants assert that privacy, trustworthiness, and confidentiality are at the very heart of many instances of free association and religious expression and communication. We do not take issue with appellants’ premise. Yet, simply precluding application of the invited informer doctrine does not assure confidentiality. Even if the government were unable to plant an undercover agent, “[t]he risk of being overheard by an eavesdropper or betrayed … is probably inherent in the conditions of human society.” Hoffa, 385 U.S. at 303, 87 S.Ct. at 414. Nothing would prevent a law abiding church-goer from telling the police that his church was being used for illegal purposes, and unless the informant’s conduct is fairly attributable to the government, the Constitution is not even implicated. See United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982).
189 In addition, a fair reading of the invited informer cases teaches that their rationale inherently imposes a rather significant burden on first amendment free association rights. In approving this investigative technique, the Supreme Court unmistakably declared that persons have no expectation of privacy or confidentiality in their conversations and relations with other persons, no matter how secretive the setting. The Court has recognized that legitimate law enforcement interests require persons to take the risk that those with whom they associate may be government agents.
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Complete opinion available at: