Month: July 2019

Europe’s Missing Islamic State Fighters

Authored by Soeren Kern via The Gatestone Institute,

  • Swedish Television surveyed officials in the five Swedish municipalities — Gothenburg, Stockholm, Örebro, Malmö and Borås — that are home to most of the 150 IS returnees and found that those municipalities combined only have knowledge of the whereabouts of a maximum of 16 adults and 10 children.

  • “The United States is asking Britain, France, Germany and other European allies to take back over 800 ISIS fighters that we captured in Syria and put them on trial… The alternative is not a good one in that we will be forced to release them…” — U.S. President Donald Trump, Twitter, February 16, 2019.

  • The Wall Street Journal, in a recent editorial, “The West’s Foreign Fighter Problem,” noted that European governments face a “Catch-22” situation: either repatriate and prosecute their jihadis, or risk that they disappear off the radar and carry out new attacks in Europe.

The German government has lost track of scores of Germans who travelled to Iraq and Syria in recent years to join the Islamic State (IS). The revelation comes amid growing fears that some of these fighters are returning to Germany undetected by authorities.

The German Interior Ministry, in response to a question from the Secretary General of the classical liberal Free Democratic Party (FDP), Linda Teuteberg, revealed that German authorities lack information on the whereabouts of at least 160 Germans who left to fight with the IS, according to Welt am Sonntag. The ministry said that while some had probably been killed in combat, others have gone into hiding and may be trying to resettle in Germany.

“In view of the very fragmented protection of the EU’s external borders, it is particularly worrying that the federal government appears to have taken no further measures to prevent the uncontrolled re-entry of underground IS fighters,” Teuteberg told Welt am Sonntag.

She added that the government “still has no concept” for dealing with former IS fighters from Germany, including “Germans detained in the war zone as well as the more than 200 former IS supporters who are now back in Germany.”

Teuteberg said that the Interior Ministry should come up with a plan for how to deal with IS returnees and how to hold them accountable, by, for example, strengthening the legal capacity to investigate and prosecute war crimes abroad.

Of the estimated 1,050 Germans who travelled to Iraq and Syria to fight in recent years, approximately one-third (350) have returned to Germany. Another 220 are believed to have been killed on the battlefield. According to government sources cited by the German television program Tagesschau, approximately 120 are being detained in Iraq and Syria. In addition, at least 138 children of German IS fighters are being held Iraq and Syria. The whereabouts of the others are unknown.

The German government downplayed Teuteberg’s concerns that IS fighters can return to Germany unnoticed:

“Given the different measures (including most-wanted lists or entry barriers) that make uncontrolled re-entry significantly more difficult, it is also assumed in the future that entry without the knowledge of the German security authorities should remain the exception.”

It is known, however, that IS fighters have entered Europe — including Germany — undetected by posing as migrants: a majority of the terrorists who carried out the November 2015 Paris attacks, in which 130 people were killed and 360 injured, entered Europe by posing as migrants, according to counter-terrorism investigators. Most of the attackers were well-known to police and at least nine were on terrorist watch lists. Once they passed through the EU’s porous borders in southern Europe, they were able to travel throughout the rest of Europe undetected.

Missing IS fighters are a Europe-wide problem. A July 2018 study by the International Center for the Study of Radicalization (ICSR) at King’s College London estimated that more than 5,900 people — 3,379 men, 1,023 women, 1,502 minors — from Western Europe joined the Islamic State. Another 7,250 people from Eastern Europe joined the group.

According to ICSR estimates, around 1,765 IS fighters have returned to Western Europe, and 784 have returned to Eastern Europe. At least 800 IS fighters are being held at Kurdish detention camps in northern Syria. Around 700 of the fighters’ wives and 1,500 of their children are also in camps, according to Reuters. It remains unclear how many of the unaccounted IS fighters have been killed on the battlefield, and how many have gone into hiding.

In Austria, for instance, of the 250 IS fighters, 93 have returned. In Belgium, of the 500 IS fighters, 123 have returned. In Britain, of the 850 IS fighters, 425 have returned. In Denmark, of the 145 IS fighters, 72 have returned. In France, of the 1,900 IS fighters, 400 have returned. In Italy, of the 129 IS fighters, 11 have returned. In the Netherlands, of the 300 IS fighters, 60 have returned. In Spain, of the 210 IS fighters, 30 have returned.

In Sweden, of the estimated 300 people who left the country to join the Islamic State, approximately 150 have returned, according to the Swedish Security Service (Säpo). Around 100 Swedish fighters are believed to have died on the battlefield; the government does not have information on the whereabouts of the others.

Between 35 and 40 Swedish IS fighters have returned to Stockholm, but the municipality has not made contact with a single returnee, and may not even know where any of them live, according to an exposé by Swedish Television (SVT), the national public television broadcaster.

SVT surveyed officials in the five Swedish municipalities — Gothenburg, Stockholm, Örebro, Malmö and Borås — that are home to most of the 150 IS returnees, and found that those municipalities combined only have knowledge of the whereabouts of a maximum of 16 adults and 10 children.

The apparent apathy has been attributed to Sweden’s lack of legislation.

“We are almost the only country in the EU that lacks legislation against participation and cooperation with terrorist organizations,” said Magnus Ranstorp, a counter-terrorism expert at the Swedish Defense University in Stockholm.

“We are of course vulnerable,” he added. “Those who are dangerous and out on our streets can recruit more, and they can even plan terrorist acts.”

Meanwhile, hundreds of foreign jihadi fighters who are being held in Syria represent a “time bomb” and could escape and threaten the West unless countries do more to take them back, according to the Kurdish-led, U.S.-backed authorities holding them.

“It seems most of the countries have decided that they’re done with them, let’s leave them here, but this is a very big mistake,” said Abdulkarim Omar of the Syrian Democratic Forces.

“Their home countries must do more to prosecute foreign fighters and rehabilitate their families, or else this will be a danger and a time bomb.”

In February 2019, U.S. President Donald Trump called on European countries to repatriate and prosecute their foreign fighters:

“The United States is asking Britain, France, Germany and other European allies to take back over 800 ISIS fighters that we captured in Syria and put them on trial. The Caliphate is ready to fall. The alternative is not a good one in that we will be forced to release them…

“The U.S. does not want to watch as these ISIS fighters permeate Europe, which is where they are expected to go. We do so much, and spend so much. Time for others to step up and do the job that they are so capable of doing. We are pulling back after 100% Caliphate victory!”

In April, Trump tweeted:

“We have 1,800 ISIS Prisoners taken hostage in our final battles to destroy 100% of the Caliphate in Syria. Decisions are now being made as to what to do with these dangerous prisoners…. European countries are not helping at all, even though this was very much done for their benefit. They are refusing to take back prisoners from their specific countries. Not good!”

On June 24, the UN High Commissioner for Human Rights, Michelle Bachelet, called for all foreign fighters who are being detained in Syria and Iraq to be repatriated, investigated and prosecuted, or released. “The continuing detention of individuals not suspected of crimes, in the absence of lawful basis and regular independent judicial review, is not acceptable,” she said.

Europe’s reluctance to take back their IS fighters is based on a mix of legal, financial and political factors. Some countries have begun repatriating the children of IS jihadis on a case-by-case basis but taking back foreign fighters and their families is deeply unpopular and carries political risk.

In France, for instance, Prime Minister Édouard Philippe recently said that he preferred that French jihadis were repatriated rather than them risk evading justice. They should be “tried, convicted and punished in France rather than disappearing in the wild to plan other actions, including against our country,” he said in a January 30 interview with France Inter. His comments sparked an immediate backlash. Valérie Boyer of the center-right party Les Républicains toldparliament that the government must “prevent the return of jihadists who betrayed France and fought against our civilization.”

National Assembly MEP Nicolas Bay, who is also a member of the executive board of Marine Le Pen’s National Rally (RN), added:

“The French jihadis, by their commitment alongside groups that declared war on our country, having committed ignoble attacks on our territory, these jihadists have deliberately chosen to break with France and there is no justification for granting them any protection.

“Rather than preparing for their return, the government should do everything possible to prevent them from returning to French territory! They must be judged by the competent Syrian and Iraqi authorities.”

Philippe subsequently did an about-face. In a March 6 interview with BFM TV, he said:

“We will not bring back anybody. The French doctrine has always been that the French fighters who are going to combat zones are fighting against us. When they are detained, they are to be judged and, if necessary, punished on the spot [in Iraq or Syria].”

The Wall Street Journal, in a recent editorial, “The West’s Foreign Fighter Problem,” noted that European governments face a “Catch-22” situation: either repatriate and prosecute their jihadis, or risk that they disappear off the radar and carry out new attacks in Europe. The Journal wrote:

“In February President Trump tweeted that the U.S. ‘is asking Britain, France, Germany and other European allies to take back’ their ISIS fighters and prosecute them at home. Indonesia, Morocco, Russia, and Sudan started the process months ago, but Western European governments are resisting.

“Bending to domestic political pressure, European politicians like U.K. Home Secretary Sajid Javid have vowed to reject ISIS members and even strip them of citizenship. German and French officials also publicly express skepticism about accepting imprisoned terrorists. Countries that criticized the U.S. over Guantanamo Bay now are turning a blind eye to the detention of their citizens elsewhere….

“The Syrian Democratic Forces (SDF) have treated detainees humanely, but it can’t hold them forever. The group eventually will have no choice but to let the prisoners go — making a manageable security threat much worse. These battle-hardened fighters are especially dangerous given their practical knowledge and the respect they could command among would-be jihadists.

“Many released fighters would slip into Iraq, blend in with sympathetic Sunni populations, and prepare for an ISIS revival. Others could exploit security vacuums in Libya or Somalia or jump-start conflicts in other unstable regions. Perhaps the greatest risk is that some will return to the West undetected alongside refugees. Countries hesitant to take back their citizens now should realize they might return anyway—clandestinely.”

via ZeroHedge News https://ift.tt/2Xn0YwU Tyler Durden

In Unprecedented Blow To Lame Duck Merkel, Partners Reject “Half Baked” Socialist For Top EU Job

Negotiations between President Trump and President Xi drew the lion’s share of the market’s attention over the weekend, as the two world leaders reenacted their ‘truce’ from the prior G-20 summit, giving global equity markets the optimistic trade headlines they crave (In the US, stocks started the month at record highs).

Moving over to Europe, Boris Johnson’s quest to succeed Theresa May as the next occupant of No. 10 Downing Street has sopped up most of the political bandwidth. But though it didn’t garner quite as much attention, the first cracks in the facade of the center-right bloc that has controlled the EU for decades formed over the weekend as German Chancellor Angela Merkel failed to win a consensus for her pick to succeed Jean-Claude Juncker as the next head of the European Commission.

Merkel

As we explained back in May, Europe’s populist parties banked their strongest showing yet in last month’s EU Parliamentary vote – though readers wouldn’t know that if they simply absorbed their news from left-leaning outlets like the BBC and the Guardian, which tried to spin the results as a critical victory. Though the center-right coalition known as the EPP and center-left coalition S&D lost their combined majority in the Parliament, they retained a plurality of votes, while populist parties like Nigel Farage’s Brexit Party and Italy’s League made strong gains. Though establishment voices still outnumber populists, the blow dealt to the establishment’s coalition, we noted at the time, would make selecting the replacements for Juncker, ECB President Mario Draghi, and other senior bloc-level positions (most of which are filled via backroom wheeling and dealing, not by the voters themselves).

Elections

The new parliament’s term hasn’t even started yet, and already, Merkel has proven that she’s a lame duck (even after her latest attempt at “un-retirement”) who can’t be relied upon to secure the coronation of her coalition’s next round of picks. According to Bloomberg, after a marathon post-Osaka session in Brussels, Merkel failed to anoint Socialist Frans Timmermans the next chairman of the European Commission as her made-in-Osaka plan faced unprecedented backlash in Brussels.

One official quoted by BBG called the unexpected pushback to Merkel’s plan – which came both from her coalition partners as well as ‘smaller countries’ who took umbrage in the fact that they were excluded from a deal cooked up in Osaka – a “rebellion of rabbits.”

If there was one thing Angela Merkel didn’t factor into her plan to make Socialist Frans Timmermans the European Union’s next chief executive, it was what one official in the room called the “rebellion of rabbits.”

As she flew back from the G-20 in Japan, the German chancellor and veteran of many an EU marathon summit was fairly confident that the 58-year-old Dutchman would be accepted by the rest of the leaders gathering in Brussels to decide who to put forward as the next head of the European Commission.

Sure, it was going to be a long night, but she’s faced down worse. As the sun rose, there was no deal and shortly after noon it was decided to reconvene on Tuesday at 11 a.m. after almost 19 hours of going around in circles. It was something almost without precedent.

What became clear was that Merkel had miscalculated the degree of opposition on two fronts: from her own center-right political family that felt betrayed she gave away the top prize. And also the smaller countries that often feel unseen and bared their teeth at the what felt like a stitch-up cooked up in Osaka.

As dawn approached on Monday morning, Merkel was forced to hold one-on-one meetings with national leaders. And still, no deal materialized. Here’s how Bloomberg explained it.

For starters, the stage hadn’t been properly set. Deals and assurances weren’t put in place. Young powers smelled blood and growing intolerance for backroom deals – especially in an increasingly fragmented political landscape following May’s EU elections.

For Merkel, one year ago, this type of snub would have been unthinkable. But now that she has stepped down as party leader and set an end date for her historic chancellorship, the new blood in Europe is trying to make its voice heard.

But it wasn’t just the young bloods like Italy’s Giuseppe Conte who opposed Merkel’s deal…

Italian Prime Minister Giuseppe Conte said he objected to a package of nominations that was formulated outside Brussels without consulting all members states: “If I sit here, I need the proposal to be made by components of the EU Council, I want the proposal to be discussed here, to be motivated here and to be confronted here.”

It may not have been of Merkel’s making, and she may have endorsed it only in the spirit of compromise, but the fierce opposition to the plan erodes the chancellor’s grip and authority — even if an accord is reached. Talks have now gone on longer than the 2015 Greek crunch meeting when she was at height of her power.

…Even longtime allies like Emmanuel Macron refused to come to her rescue.

And French President Emmanuel Macron was not coming to her rescue – their relationship has been showing signs of strain. “In the long run we must draw consequences of such a failure,” he said at the end of day two. “Our credibility is deeply stained by these endless meetings that lead to nothing. We’re giving an image of Europe that is not serious.”

Perhaps the Prime Ministerof Bulgaria best articulated the frustration of the EPP’s smaller coalition partners: “Nobody has the right to negotiate on our behalf, from EPP, whatever post they have.” Another described Merkel’s plan to anoint Timmermans as “half baked”.

Others lashed out at the chancellor, saying the impasse is a sign of how much of a lame duck she is. There was no plan to come up with a proposal that her own people, lawmakers at the EU parliament and other center-right leaders were going to shoot down in such an insulting manner.

“Merkel is leader of the CDU, not the EPP,” Bulgarian Prime Minister Boyko Borissov told reporters. “Well many other things came from Osaka as well. But nobody has the right to negotiate on our behalf, from EPP, whatever post they have.”

Such open defiance to Merkel would have been unthinkable even a year ago. Today she appears a weakened figure, both at home and internationally, with her term ending in 2021.

Markets might not be paying attention now (the BBG headlines went largely unnoticed), but as talks over ECB President Mario Draghi’s replacement falter, we imagine that investors will soon be paying attention to the new era of political gridlock looming over Brussels.

via ZeroHedge News https://ift.tt/2Ly9F04 Tyler Durden

Drunk Driving, Blood Draws, and the Fourth Amendment After Mitchell v. Wisconsin

Last week, in Mitchell v. Wisconsin, the Supreme Court added a new chapter to the Fourth Amendment rules on testing for blood alcohol content in the enforcement of the drunk driving laws.   When the government tries to prove drunk driving in court, it’s very helpful for the prosecution to have a reliable test of the driver’s blood alcohol content.  This means that when the government has probable cause to believe that a person has been driving drunk, officers will want to test the person’s blood alcohol level through either a breathalyzer test or a blood draw.  The Fourth Amendment question is, when can the government order either test without a warrant?

This post will discuss that broad problem and the specific part of it that Mitchell helps answer.  It will do so in six parts. (I know, that’s too many parts!  But there’s a lot of important context here, and all four readers interested in this topic won’t mind. So six parts it is.)  The first part explains why this is a particularly difficult question for Fourth Amendment law. The second part summarizes the holdings of the recent cases on this issue before Mitchell.  The third part explains the facts and rationale of Mitchell. The fourth part looks closely at Mitchell‘s surprisingly complicated rule.  The fifth part offers some normative reactions to the case.  The sixth part concludes with some thoughts on rules and standards in Fourth Amendment law.

A warning before I start. This is a pretty complex and somewhat arcane area of Fourth Amendment law, so it’s possible I may make some mistakes.  If you think I erred, please let me know. I’ll make corrections as soon as I can.

I.  Why This Is Hard

It’s helpful at the outset to appreciate why the rules for blood and breath tests in drunk driving cases might be pretty difficult for the Justices.  On one hand, it’s clear that both blood and breath tests should be a search.  Both force the retrieval of evidence inside the body and expose that evidence to the government. Both are searches of a person.  That part is easy.

On the other hand, identifying when those searches are constitutionally “reasonable” is much harder.  Searches typically are reasonable if the government has a valid search warrant or an exception to the warrant requirement applies.  Everyone agrees that the government can get a warrant to conduct a breath test or a blood draw.  The important and contested question has been when such tests can be allowed without a warrant under one of the warrant exceptions.

That’s a hard problem because the facts of blood and breath draws resonate with several different warrant exceptions without being obvious fits in any of them.  Consider a few possibilities:

  • The exigent circumstances exception.  This exception applies when evidence may be destroyed before the government can get a warrant.  Alcohol in the blood naturally dissipates over time: Does that create exigent circumstances to do a test without a warrant?
  • The search incident to arrest exception.  The Fourth Amendment traditionally permits a search of a person upon their arrest for evidence without a warrant.   When the government arrests someone for drunk driving, does the “evidence” that can be obtained under the exception include their breath or blood to get the alcohol levels?
  • The consent exception.  States have adopted “implied consent” laws that say that a person who is arrested for drunk driving impliedly consents to an alcohol test as a condition of driving in the state.   When a person is arrested, does this consent kick in and make the search something that the driver has consented to by driving?
  • The general reasonableness exception.  The modern Supreme Court sometimes rules that searches or seizures are reasonable without a warrant because it advances important law enforcement interests while not substantially infringing on privacy interests. Are either blood tests or breath tests reasonable on these grounds?

All of these arguments are at least facially plausible.  But none of them are perfect fits.  And to make matters more complicated, there are different kinds of tests that could be administered.  There are preliminary field breath tests that aren’t very reliable.  There are breath tests on more reliable machines back at the station house.  And there are blood draws typically done by medical professionals.  It’s not easy to figure out what the rules should be.

II.  The Key Precedents: Schmerber, McNeely, and Birchfield

Now on to the some cases.  There are three precedents that you need to know to understand the new decision in Mitchell.

The first case is Schmerber v. California, from way back in 1966.  The Court held that the exigent circumstances exception applied “on the facts of the present record” to permit a physician to draw blood at a police officer’s direction from a motorist who crashed his car into a tree and was being treated for his injuries at the time of his arrest for drunk driving.  Given the time that had elapsed after the crash before the driver’s arrest, and the reasonable way that the blood draw was performed, the blood draw was reasonable under the exigent circumstances exception.

The second case is Missouri v. McNeely (2013), which considered whether Schmerber‘s allowing blood draws should apply per se to all drunk driving arrests.  The Court divided, with a majority opinion in some areas and only a plurality in others.  The majority rejected a per se approach, holding that the mere fact of a drunk driving arrest did not necessarily create exigent circumstances for a blood draw.  But the majority’s opinion was unusually narrow. It only ruled that the exigent circumstances exception approach of Schmerber had to be applied on a case-by-case basis.  It did not answer what the cases were where the exception applied.

Next up was Birchfield v. North Dakota (2016), which tried to resolve the uncertainty created by McNeely by addressing how the Fourth Amendment applies to both blood draws and breath tests in light of the implied consent statutes that states have enacted.  Birchfield held that when a person is arrested for drunk driving, a breath test is permitted under the search incident to arrest exception but that a blood test is not permitted under that exception.

A breath test is much less of a big deal than a blood test, Birchfield reasoned. It’s less invasive and less risky.  The former is reasonable on a drunk driving arrest while the latter is not.  So when the government arrests someone for drunk driving, they can always conduct a breath test but need special circumstances (such as in Schmerber) to conduct a blood test.  This meant, the Court explained, that refusal to submit to a breath test on arrest could be prosecuted while refusal to submit to a blood test ordinarily could not be.

Birchfield also held that a person could not be held to have impliedly consented to a search if refusal has criminal penalties.  Earlier caselaw had indicated that person could be subject to civil penalties for refusal to go along with implied consent statutes.  For example, if the state wants to take your driver’s license away for refusing to consent, it’s permissible for them to do so on the ground that you had impliedly consented to a search and then refused to go along with your promise.  But this same rationale did not permit criminal penalties for refusal, the Court held.  Exactly why there should be such a limit wasn’t particularly well-explained.  But the Court’s rule on this was clear: “[I]mplied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply” are fine, but “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.”

III.  The New Case, Mitchell v. Wisconsin, on the Unconscious Driver

That brings us to the new case, Mitchell v. Wisconsin.  Mitchell deals with the following question: What can the police do if a person is strongly suspected of drunk driving is unconscious and therefore can’t give a breath test and can’t be asked if they will submit to a blood test?  In particular, if the police want to perform a blood draw on the unconscious person to get a blood sample for testing its alcohol content, is that a reasonable search without a warrant or is a warrant needed?

Here are the facts of the case.  Mitchell was reported driving drunk, and he was soon found totally trashed wandering around a lake on foot near his car.  An officer gave Mitchell a “preliminary breath test,” a relatively unreliable field test, which showed he was very drunk.  The officer arrested Mitchell and brought him to the police station for “a more reliable breath test using better equipment,” as permitted by Birchfield incident to Mitchell’s arrest.  But that didn’t work out so well.  Mitchell was so out of it when they reached the police station that the officer couldn’t do the breath test and instead drove Mitchell to the hospital.

Mitchell had passed out by the time they reached the hospital and had to be wheeled in.  It turns out that Wisconsin has an implied-consent law that says an unconscious person is presumed not to have withdrawn consent.  But in theory, the law suggests, even an unconscious person should be given a chance to overcome that presumption. So get this: To comply with the law, the officer announced to  the passed-out Mitchell that he had consented as a matter of law but that if he wanted to withdraw his consent, he could.

Mitchell, being unconscious and all, did not respond.  And by not responding, his legally presumed consent was still deemed to exist.  (Gotta love the law, eh?)  The officer asked the hospital personnel to take a blood draw, and they did.  A subsequent analysis showed, unsurprisingly, that Mitchell was blitzed.

Now we get to the legal question: Was the blood draw permitted under the Fourth Amendment?

Yes, the Court ruled.   Specifically, Mitchell answered this question in a plurality opinion by Justice Alito that is controlling under Marks because it is narrower opinion than Justice Thomas’s concurrence in favor of the same side.  According to Justice Alito, an officer can “almost always” direct hospital personnel to conduct a blood test on an unconscious person when the officer has probable cause to arrest the motorist for drunk driving and no reliable breath test has been given.

Perhaps the most surprising part of Mitchell is the warrant exception the Court applied. Wisconsin’s brief focused on three warrant exceptions: consent, general reasonableness, and search incident to arrest.  But the plurality opinion, as well as Justice Thomas’s fifth-vote concurrence, relied instead on the exigent circumstances exception.

Specifically, the plurality saw the driver’s unconsciousness as a special situation akin to the traffic accident that had allowed the blood draw in Schmerber.   Although McNeely held that the “constant dissipation of BAC evidence alone does not create an exigency, Schmerber shows that it does so when combined with other pressing needs.”  According to Justice Alito:

exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.

Why does unconsciousness matter so much?  When a driver was unconscious, a reliable breath test wasn’t possible.  Only a blood draw could be conducted.  And getting accurate alcohol numbers was extremely important to prove a person had driven intoxicated, greatly facilitating the enforcement of drunk driving laws that seek to avoid tens of thousands of deaths every year.

Further, for the police, coming across an unconscious driver was likely to trigger a sequence of events to help the driver that was inconsistent with getting a warrant.  The police were likely to be rushing the driver to the hospital and perhaps saving lives at a possible crash scene, during which the officer was unlikely to be able to take time out to go get a search warrant. In the emergency scenarios created by unconscious drivers,” Justice Alito wrote, “forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs.”  Further, an unconscious person was likely to have his blood drawn by the hospital personnel anyway as part of the driver’s medical care.  Amidst that process, a blood draw for evidence wasn’t that much of an additional invasion.

IV. Mitchell’s Surprisingly Specific Rule

Does this mean that the police can always do a blood draw of an unconscious driver suspected of having been drunk behind the wheel?  No, it doesn’t.  Justice Alito’s rule is actually pretty subtle and complex.  At the end of his opinion, Justice Alito lays it out:

When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.

Note that because Justice Thomas had a broader rationale in his fifth-vote concurrence—Justice Thomas reasoned, consistently with his McNeely dissent, that exigent circumstances always applies to permit a blood draw when a person is arrested for drunk driving—that the plurality’s rule above is the governing rule under Marks.

Let’s parse the paragraph.  There’s a lot there.

First, the rule appears to assume not only probable cause, but also that the driver has been taken to a hospital or something similar.  So we’re dealing with hospital-conducted blood draws, not the officer acting by the side of the road.

Second, the rule still applies if an officer has given the driver an unreliable field breath test but does not apply if the officer has given the driver “a standard evidentiary breath test.”  If the government has been able to do a relatively reliable breath test, typically back at the police station, then the government already has its good evidence and likely lacks the exigent circumstances that would justify a blood draw of an unconscious motorist to get what should be pretty similar evidence.

Third, the rule does not apply “in an unusual case” where “a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.”

I’m not entirely sure, but I think that language above should be read as imposing two requirements in the conjunctive. For the rule not to apply, the person must both show that his blood would not have been drawn in the ordinary course of his medical care and also that the police were not so busy with other pressing duties that they could have reasonably thought getting a warrant would interfere with that.

Because the record doesn’t say if those requirements were met in Mitchell’s case, the Court vacates the decision below and remands for further proceedings without applying its own new rule to Mitchell’s case.

V.  My Normative Take on Mitchell

What should we make of Mitchell?  My own sense is that it’s a relatively narrow decision that is pretty sensible on pragmatic grounds.  Here are a few thoughts on why.

First, I was glad that the controlling plurality opinion in Mitchell didn’t adopt the really scary argument the state made about implied consent.  The state had argued that because penalties for refusal were only civil, Birchfield permitted the legally implied consent to be considered real consent for Fourth Amendment purposes.  That was a very troubling position.  It would treat the enactment of a statute saying a person consented in a particular situation as sufficient evidence that a person actually did consent.  Giving a legislature the authority to announce that a class of people have consented to Fourth Amendment searches even when they actually haven’t would be an easy way to eliminate Fourth Amendment rights.  The plurality didn’t adopt that argument, and that’s a very good thing.

Second, I think the controlling plurality test gives the police clear guidance without creating any troubling incentives.  When officers make an arrest for drunk driving, they will still want to bring the person to the station house and do a reliable breath test once there as Birchfield permits. The Mitchell plurality rule kicks in only when the person has passed out and no reliable breath test has been done—and that point, no reliable breath test can be done.

At that point, after the officers have brought the unconscious person to the hospital, they can request the medical professionals to do a blood test without a warrant as long as the warrantless blood draw isn’t some sort of weird outlier step when no blood draw would have been conducted otherwise and the officers aren’t just sitting around and could have obtained a warrant.  Try the less invasive breath test first, the law is telling officers, and only do a blood draw if there’s no other way to get a reliable test and the hospital personnel do it.  And then get a warrant if you have time and it won’t interfere with other duties, but you don’t need a warrant if you don’t have time and it would interfere with your other work.

Admittedly, much of my reaction comes from it not being clear to me how much difference a warrant makes in this particular setting.  In the cases covered by Mitchell, an unconscious driver has been admitted to the hospital.  Probable cause is thought to exist that he was driving drunk.  If a warrant is required, an officer would contact the judge, say he’s at the hospital with the unconscious driver, and make the case for probable cause to believe that the person drove while intoxicated.  If the judge agrees, medical personnel would do the blood draw.

But I wonder, how much practical difference does it make whether there is a warrant in that setting?  The probable cause needed to get the blood draw warrant seems the same as the probable cause needed to make the drunk driving arrest.  That arrest is something that the Fourth Amendment has already permitted without a warrant, and for which there already must be a post-arrest review presumptively within 48 hours under County of Riverside.   What does a warrant requirement in that setting add?  Given that the driver is now passed out, it’s probably not too hard to show he was intoxicated.  And I would think it is the relatively rare case when whether the person had been driving was in doubt.  The actual draw, to be conducted by medical professionals, is not likely to be conducted in an unreasonable way.  In that setting, it’s not clear to me how much a warrant adds.

Justice Sotomayor suggests in her dissent that existing precedents already squarely answered that a warrant was required for a blood draw, and that the plurality rule guts the warrant requirement, “strik[ing] another needless blow at the protections guaranteed by the Fourth Amendment.”  “If there is time” to get a warrant for the blood draw, Justice Sotomayor argues, then the Fourth Amendment should require that the police must do so.  Putting aside that I don’t think the precedents answered this question, I wasn’t convinced that the plurality’s rule is so untethered.  As noted above, I would think the effect of the rule is to have medical personnel do the blood draw at the hospital in a circumstance when probable cause is not likely to be in doubt.

That’s not to say that Justice Sotomayor’s proposed rule was problematic.  I think both the plurality and dissent approaches are reasonable answers to this problem.  But I don’t see the plurality approach as somehow out of step with prior rulings or as particularly problematic.

VI.  A Concluding Thought on Rules and Standards

A final thought on Mitchell is that there is a really interesting undercurrent on the choice between rules and standards in Fourth Amendment law.  Some Fourth Amendment exceptions to the warrant requirement traditionally work like bright-line rules—specifically, consent and search incident to arrest.  Other exceptions to the warrant requirement traditionally work like standards—of particular relevance here, exigent circumstances.

On one hand, the Justices in cases like Mitchell and Birchfield and McNeely are presented with recurring circumstances that call out for some kind of rule.  The police run into these situations often, and they need to know when they need a warrant.  On the other hand, the practical problem of when to allow various alcohol tests is also something that calls out for some kind of nuanced standard.  You wouldn’t want the police to just arrest people and do blood draws on their own whenever they want, and you wouldn’t want the police to have to get a warrant in every case.

I think you see many the Justices in these cases grappling with how to satisfy both concerns at once  They want both a nuanced approach that is also relatively rule-oriented.  So in McNeely, the Court rejected a per se rule of exigency—that’s too unbalanced. Then in Birchfield, the Court adopted one clear rule for breath tests and another clear rule for blood draws—two clear rules, but different rules for different tests.  And finally, in Mitchell, the plurality interprets a standard-based exception in a way that leads to a fairly specific set of rules.

Of course, the Justices don’t all agree on how to strike the balance. No surprise that Justice Alito will strike the balance differently than Justice Sotomayor.  And Justice Thomas has been an outlier on these issues since McNeely with a bright-line view based on exigent circumstances.  But I think you can see a lot of the Justices really grappling with how to balance the need for rules and standards based on the practical problem confronting them.

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Escobar: Contrast Between Russia-India-China & Trump Could Not Be Starker

Authored by Pepe Escobar via The Saker blog,

The most important trilateral at the G20 in Osaka was confined to a shoddy environment unworthy of Japan’s unrivaled aesthetic minimalism.

Japan excels in perfect planning and execution. So it’s hard to take this setup as an unfortunate “accident.” At least the – unofficial – Russia-India-China summit at the sidelines of the G20 transcended the fate of an interior decorator deserving to commit seppuku.

Leaders of these three countries met in virtual secrecy. The very few media representatives present in the shabby room were soon invited to leave. Presidents Putin, Xi and Modi were flanked by streamlined teams who barely found enough space to sit down. There were no leaks. Cynics would rather joke that the room may have been bugged anyway. After all, Xi is able to call Putin and Modi to Beijing anytime he wants to discuss serious business.

New Delhi is spinning that Modi took the initiative to meet in Osaka. That’s not exactly the case. Osaka is a culmination of a long process led by Xi and Putin to seduce Modi into a serious Eurasia integration triangular road map, consolidated at their previous meeting last month at the Shanghai Cooperation Organization (SCO) summit in Bishkek.

Now Russia-India-China (RIC) is fully back in business; the next meeting is set for the Eastern Economic Forum in Vladivostok in September.

In their introductory remarks, Putin, Xi and Modi made it clear that RIC is all about configuring, in Putin’s words, an “indivisible security architecture” for Eurasia.

Modi – very much in a Macron vein – stressed the multilateral effort to fight climate change, and complained that the global economy is being ruled by a “one-sided” dictate, emphasizing the necessity of a reform of the World Trade Organization.

Putin went a step ahead, insisting, “our countries are in favor of preserving the system of international relations, whose core is the UN Charter and the rule of law. We uphold such important principles of interstate relations as respect for sovereignty and non-interference in domestic affairs.”

Putin clearly underlined the geopolitical interconnection of the UN, BRICS, SCO and G20, plus “strengthening the authority of the WTO” and the International Monetary Fund as the “paragon of a modern and just multipolar world that denies sanctions as legitimate actions.”

The Russia-India-China contrast with the Trump administration could not be starker.

Those ‘tremendous assets’

BRICS, as it stands, is dead. There was an “official,” pro-forma BRICS meeting before the RIC. But it’s no secret both Putin and Xi completely distrust Brazil’s Jair Bolsonaro, regarded as a Trump neocolonial asset.

Ahead of his bilateral with Trump, Bolsonaro peddled Brazil’s mineral wealth, claiming the country may now export “niobium trinkets.”

Well, that’s certainly less controversial than the Brazilian military sherpa arrested in Spain for carrying industrial quantities of cocaine (36kg) in the presidential plane, definitely ruining the after-hours party time in Osaka.

Later on, Trump eagerly praised Brazil’s “tremendous assets,” now being fully privatized to the benefit of US companies.

Xi, as he addressed the BRICS meeting, denounced protectionism and called for a stronger WTO. BRICS nations, he said, should “increase our resilience and capability to cope with external risks.”

Putin went one up. Apart from denouncing “protectionist” tendencies in global trade, he called for bilateral trade in national currencies bypassing the US dollar – mirroring a commitment by the Russia-China strategic partnership.

Russia-China, via Finance Minister Anton Siluanov and head of the People’s Bank of China, Yi Gang, have signed an agreement to switch to rubles and yuan in bilateral trade, starting with energy and agriculture, and increase cross-currency settlements by 50% in the next few years.

There will be a concerted effort to increasingly bypass SWIFT, using the Russian System for Transfer of Financial Messages (SPFS) and the Chinese Cross-Border Inter-Bank Payments System (CIPS).

Sooner or later Russia-China will entice India to join. Moscow has excellent bilateral relations with both Beijing and New Delhi, and is decisively playing the role of privileged messenger.

The mini-trade war against New Delhi launched by the Trump administration – including the loss of India’s special trade status and punishment for buying Russian S-400 missile systems – is quickening the pace of the process. India, by the way, will pay for the S-400s in euros.

There were no leaks whatsoever from Russia-India-China about Iran. But diplomats say that was a key theme of the discussion. Russia is already – covertly – helping Iran on myriad levels. India has an existential choice to make: keep buying Iranian oil or say goodbye to Iran’s strategic help, via the Chabahar port, to facilitate India’s mini-Silk Road to Afghanistan and Central Asia.

China sees Iran as a key node of the New Silk Roads, or Belt and Road Initiative. Russia sees Iran as essential for strategic stability in Southwest Asia – a key theme of the Putin-Trump bilateral, which also discussed Syria and Ukraine.

The leaders of RIC – Russian President Vladimir Putin, Indian Prime Minister Narendra Modi and Chinese President Xi Jinping – hold a meeting on the sidelines of the G20 summit in Osaka on June 28, 2019. Photo: Mikhail Klimentyev / Sputnik / AFP

RIC or Belt and Road?

Whatever the psyops tactics employed by Trump, Russia-India-China is also directly implicated in the massive short and long-term ramifications of the Trump-Xi bilateral in Osaka. The Big Picture is not going to change; the Trump administration is betting on re-routing global supply chains out of China, while Beijing advances full speed ahead with its Belt and Road Initiative.

Trump is heavily distrusted across Europe – as Brussels knows the EU is the target of another imminent trade war. Meanwhile, with over 60 nations committed to myriad Belt and Road projects, and with the Eurasia Economic Union also interlinked with Belt and Road, Beijing knows it’s just a matter of time before the whole of the EU hits the BRI highway.

There’s no evidence that India may suddenly join Belt and Road projects. The geopolitical lure of “Indo-Pacific” – essentially just another strategy for containment of China – looms large. That’s good old imperial Divide and Rule – and all the major players know it.

Yet India, now on the record, is starting to spin that Indo-Pacific is not “against somebody.” India getting deeper into RIC does not imply getting closer to Belt and Road.

It’s time for Modi to rise to the occasion; ultimately, he will decide which way the geoeconomic pendulum swings.

via ZeroHedge News https://ift.tt/2XgebHE Tyler Durden

NASA Will Fly Quadcopter On Saturn’s Largest Moon Looking For Signs Of Life

On Thursday, NASA announced that its next space mission was to send a quadcopter named Dragonfly to Saturn’s largest moon, called Titan, looking for signs of life. Dragonfly will launch in 2026 and land on Titan in 2034.

The quadcopter will be looking for prebiotic chemical processes common on both Titan and Earth. Dragonfly will be the first time NASA operates a multi-rotor vehicle for space exploration on another planet; it is classified as rotorcraft, has eight rotors and flies like a drone. Flying will be difficult and will use a lot of energy. This is because of Titan’s atmosphere is four times thicker than Earth’s.

NASA says the moon is comparable to Earth in its youth, can provide evidence to how life has evolved over millions of years.

Dragonfly will operate on Titian for three years, will explore diverse environments across the moon. It has several sensors that will study how far prebiotic chemistry may have progressed.

“With the Dragonfly mission, NASA will once again do what no one else can do,” said NASA Administrator Jim Bridenstine.

“Visiting this mysterious ocean world could revolutionize what we know about life in the universe. This cutting-edge mission would have been unthinkable even just a few years ago, but we’re now ready for Dragonfly’s amazing flight.”

Researchers used data from the Cassini-Huygens spacecraft that started its mission in 2004 and used sensors to scan through the moon’s haze. Cassini was able to detect clouds of methane and various geologic surfaces with only a few crater impacts.

NASA has said Titan’s atmosphere is “the most chemically complex in the solar system.”

Sometime in 2034, Dragonfly will land at the equatorial “Shangri-La” dune fields, which are similar to dunes in Namibia in southern Africa. For the next three years, Dragonfly will leapfrog around the moon, 5 miles at a time. At the end of its mission, it will reach the Selk impact crater, where there could be evidence of water and possible life.

Titan has a nitrogen-based atmosphere similar to Earth. However, Titan has clouds and rain of methane. The moon’s weather and surface processes could have enough to create life.

“Unveiling Titan is like reading a mystery novel,” said Dr. Charles Elachi, director of NASA’s Jet Propulsion Laboratory and team leader for the radar instrument on Cassini. “Each time you flip the page you learn something new, but you don’t know the whole story until you’ve read the whole book. The story of Titan is unfolding right before our eyes, and what we are seeing is intriguing.”

While everyone is focused on Mars and the Moon – it seems by the mid-2030s – human beings will get a glimpse of what it’s like on one of Saturn’s 62 confirmed moons.

via ZeroHedge News https://ift.tt/2JiQsNh Tyler Durden

Drunk Driving, Blood Draws, and the Fourth Amendment After Mitchell v. Wisconsin

Last week, in Mitchell v. Wisconsin, the Supreme Court added a new chapter to the Fourth Amendment rules on testing for blood alcohol content in the enforcement of the drunk driving laws.   When the government tries to prove drunk driving in court, it’s very helpful for the prosecution to have a reliable test of the driver’s blood alcohol content.  This means that when the government has probable cause to believe that a person has been driving drunk, officers will want to test the person’s blood alcohol level through either a breathalyzer test or a blood draw.  The Fourth Amendment question is, when can the government order either test without a warrant?

This post will discuss that broad problem and the specific part of it that Mitchell helps answer.  It will do so in six parts. (I know, that’s too many parts!  But there’s a lot of important context here, and all four readers interested in this topic won’t mind. So six parts it is.)  The first part explains why this is a particularly difficult question for Fourth Amendment law. The second part summarizes the holdings of the recent cases on this issue before Mitchell.  The third part explains the facts and rationale of Mitchell. The fourth part looks closely at Mitchell‘s surprisingly complicated rule.  The fifth part offers some normative reactions to the case.  The sixth part concludes with some thoughts on rules and standards in Fourth Amendment law.

A warning before I start. This is a pretty complex and somewhat arcane area of Fourth Amendment law, so it’s possible I may make some mistakes.  If you think I erred, please let me know. I’ll make corrections as soon as I can.

I.  Why This Is Hard

It’s helpful at the outset to appreciate why the rules for blood and breath tests in drunk driving cases might be pretty difficult for the Justices.  On one hand, it’s clear that both blood and breath tests should be a search.  Both force the retrieval of evidence inside the body and expose that evidence to the government. Both are searches of a person.  That part is easy.

On the other hand, identifying when those searches are constitutionally “reasonable” is much harder.  Searches typically are reasonable if the government has a valid search warrant or an exception to the warrant requirement applies.  Everyone agrees that the government can get a warrant to conduct a breath test or a blood draw.  The important and contested question has been when such tests can be allowed without a warrant under one of the warrant exceptions.

That’s a hard problem because the facts of blood and breath draws resonate with several different warrant exceptions without being obvious fits in any of them.  Consider a few possibilities:

  • The exigent circumstances exception.  This exception applies when evidence may be destroyed before the government can get a warrant.  Alcohol in the blood naturally dissipates over time: Does that create exigent circumstances to do a test without a warrant?
  • The search incident to arrest exception.  The Fourth Amendment traditionally permits a search of a person upon their arrest for evidence without a warrant.   When the government arrests someone for drunk driving, does the “evidence” that can be obtained under the exception include their breath or blood to get the alcohol levels?
  • The consent exception.  States have adopted “implied consent” laws that say that a person who is arrested for drunk driving impliedly consents to an alcohol test as a condition of driving in the state.   When a person is arrested, does this consent kick in and make the search something that the driver has consented to by driving?
  • The general reasonableness exception.  The modern Supreme Court sometimes rules that searches or seizures are reasonable without a warrant because it advances important law enforcement interests while not substantially infringing on privacy interests. Are either blood tests or breath tests reasonable on these grounds?

All of these arguments are at least facially plausible.  But none of them are perfect fits.  And to make matters more complicated, there are different kinds of tests that could be administered.  There are preliminary field breath tests that aren’t very reliable.  There are breath tests on more reliable machines back at the station house.  And there are blood draws typically done by medical professionals.  It’s not easy to figure out what the rules should be.

II.  The Key Precedents: Schmerber, McNeely, and Birchfield

Now on to the some cases.  There are three precedents that you need to know to understand the new decision in Mitchell.

The first case is Schmerber v. California, from way back in 1966.  The Court held that the exigent circumstances exception applied “on the facts of the present record” to permit a physician to draw blood at a police officer’s direction from a motorist who crashed his car into a tree and was being treated for his injuries at the time of his arrest for drunk driving.  Given the time that had elapsed after the crash before the driver’s arrest, and the reasonable way that the blood draw was performed, the blood draw was reasonable under the exigent circumstances exception.

The second case is Missouri v. McNeely (2013), which considered whether Schmerber‘s allowing blood draws should apply per se to all drunk driving arrests.  The Court divided, with a majority opinion in some areas and only a plurality in others.  The majority rejected a per se approach, holding that the mere fact of a drunk driving arrest did not necessarily create exigent circumstances for a blood draw.  But the majority’s opinion was unusually narrow. It only ruled that the exigent circumstances exception approach of Schmerber had to be applied on a case-by-case basis.  It did not answer what the cases were where the exception applied.

Next up was Birchfield v. North Dakota (2016), which tried to resolve the uncertainty created by McNeely by addressing how the Fourth Amendment applies to both blood draws and breath tests in light of the implied consent statutes that states have enacted.  Birchfield held that when a person is arrested for drunk driving, a breath test is permitted under the search incident to arrest exception but that a blood test is not permitted under that exception.

A breath test is much less of a big deal than a blood test, Birchfield reasoned. It’s less invasive and less risky.  The former is reasonable on a drunk driving arrest while the latter is not.  So when the government arrests someone for drunk driving, they can always conduct a breath test but need special circumstances (such as in Schmerber) to conduct a blood test.  This meant, the Court explained, that refusal to submit to a breath test on arrest could be prosecuted while refusal to submit to a blood test ordinarily could not be.

Birchfield also held that a person could not be held to have impliedly consented to a search if refusal has criminal penalties.  Earlier caselaw had indicated that person could be subject to civil penalties for refusal to go along with implied consent statutes.  For example, if the state wants to take your driver’s license away for refusing to consent, it’s permissible for them to do so on the ground that you had impliedly consented to a search and then refused to go along with your promise.  But this same rationale did not permit criminal penalties for refusal, the Court held.  Exactly why there should be such a limit wasn’t particularly well-explained.  But the Court’s rule on this was clear: “[I]mplied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply” are fine, but “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.”

III.  The New Case, Mitchell v. Wisconsin, on the Unconscious Driver

That brings us to the new case, Mitchell v. Wisconsin.  Mitchell deals with the following question: What can the police do if a person is strongly suspected of drunk driving is unconscious and therefore can’t give a breath test and can’t be asked if they will submit to a blood test?  In particular, if the police want to perform a blood draw on the unconscious person to get a blood sample for testing its alcohol content, is that a reasonable search without a warrant or is a warrant needed?

Here are the facts of the case.  Mitchell was reported driving drunk, and he was soon found totally trashed wandering around a lake on foot near his car.  An officer gave Mitchell a “preliminary breath test,” a relatively unreliable field test, which showed he was very drunk.  The officer arrested Mitchell and brought him to the police station for “a more reliable breath test using better equipment,” as permitted by Birchfield incident to Mitchell’s arrest.  But that didn’t work out so well.  Mitchell was so out of it when they reached the police station that the officer couldn’t do the breath test and instead drove Mitchell to the hospital.

Mitchell had passed out by the time they reached the hospital and had to be wheeled in.  It turns out that Wisconsin has an implied-consent law that says an unconscious person is presumed not to have withdrawn consent.  But in theory, the law suggests, even an unconscious person should be given a chance to overcome that presumption. So get this: To comply with the law, the officer announced to  the passed-out Mitchell that he had consented as a matter of law but that if he wanted to withdraw his consent, he could.

Mitchell, being unconscious and all, did not respond.  And by not responding, his legally presumed consent was still deemed to exist.  (Gotta love the law, eh?)  The officer asked the hospital personnel to take a blood draw, and they did.  A subsequent analysis showed, unsurprisingly, that Mitchell was blitzed.

Now we get to the legal question: Was the blood draw permitted under the Fourth Amendment?

Yes, the Court ruled.   Specifically, Mitchell answered this question in a plurality opinion by Justice Alito that is controlling under Marks because it is narrower opinion than Justice Thomas’s concurrence in favor of the same side.  According to Justice Alito, an officer can “almost always” direct hospital personnel to conduct a blood test on an unconscious person when the officer has probable cause to arrest the motorist for drunk driving and no reliable breath test has been given.

Perhaps the most surprising part of Mitchell is the warrant exception the Court applied. Wisconsin’s brief focused on three warrant exceptions: consent, general reasonableness, and search incident to arrest.  But the plurality opinion, as well as Justice Thomas’s fifth-vote concurrence, relied instead on the exigent circumstances exception.

Specifically, the plurality saw the driver’s unconsciousness as a special situation akin to the traffic accident that had allowed the blood draw in Schmerber.   Although McNeely held that the “constant dissipation of BAC evidence alone does not create an exigency, Schmerber shows that it does so when combined with other pressing needs.”  According to Justice Alito:

exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.

Why does unconsciousness matter so much?  When a driver was unconscious, a reliable breath test wasn’t possible.  Only a blood draw could be conducted.  And getting accurate alcohol numbers was extremely important to prove a person had driven intoxicated, greatly facilitating the enforcement of drunk driving laws that seek to avoid tens of thousands of deaths every year.

Further, for the police, coming across an unconscious driver was likely to trigger a sequence of events to help the driver that was inconsistent with getting a warrant.  The police were likely to be rushing the driver to the hospital and perhaps saving lives at a possible crash scene, during which the officer was unlikely to be able to take time out to go get a search warrant. In the emergency scenarios created by unconscious drivers,” Justice Alito wrote, “forcing police to put off other tasks for even a relatively short period of time may have terrible collateral costs.”  Further, an unconscious person was likely to have his blood drawn by the hospital personnel anyway as part of the driver’s medical care.  Amidst that process, a blood draw for evidence wasn’t that much of an additional invasion.

IV. Mitchell’s Surprisingly Specific Rule

Does this mean that the police can always do a blood draw of an unconscious driver suspected of having been drunk behind the wheel?  No, it doesn’t.  Justice Alito’s rule is actually pretty subtle and complex.  At the end of his opinion, Justice Alito lays it out:

When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment. We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.

Note that because Justice Thomas had a broader rationale in his fifth-vote concurrence—Justice Thomas reasoned, consistently with his McNeely dissent, that exigent circumstances always applies to permit a blood draw when a person is arrested for drunk driving—that the plurality’s rule above is the governing rule under Marks.

Let’s parse the paragraph.  There’s a lot there.

First, the rule appears to assume not only probable cause, but also that the driver has been taken to a hospital or something similar.  So we’re dealing with hospital-conducted blood draws, not the officer acting by the side of the road.

Second, the rule still applies if an officer has given the driver an unreliable field breath test but does not apply if the officer has given the driver “a standard evidentiary breath test.”  If the government has been able to do a relatively reliable breath test, typically back at the police station, then the government already has its good evidence and likely lacks the exigent circumstances that would justify a blood draw of an unconscious motorist to get what should be pretty similar evidence.

Third, the rule does not apply “in an unusual case” where “a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.”

I’m not entirely sure, but I think that language above should be read as imposing two requirements in the conjunctive. For the rule not to apply, the person must both show that his blood would not have been drawn in the ordinary course of his medical care and also that the police were not so busy with other pressing duties that they could have reasonably thought getting a warrant would interfere with that.

Because the record doesn’t say if those requirements were met in Mitchell’s case, the Court vacates the decision below and remands for further proceedings without applying its own new rule to Mitchell’s case.

V.  My Normative Take on Mitchell

What should we make of Mitchell?  My own sense is that it’s a relatively narrow decision that is pretty sensible on pragmatic grounds.  Here are a few thoughts on why.

First, I was glad that the controlling plurality opinion in Mitchell didn’t adopt the really scary argument the state made about implied consent.  The state had argued that because penalties for refusal were only civil, Birchfield permitted the legally implied consent to be considered real consent for Fourth Amendment purposes.  That was a very troubling position.  It would treat the enactment of a statute saying a person consented in a particular situation as sufficient evidence that a person actually did consent.  Giving a legislature the authority to announce that a class of people have consented to Fourth Amendment searches even when they actually haven’t would be an easy way to eliminate Fourth Amendment rights.  The plurality didn’t adopt that argument, and that’s a very good thing.

Second, I think the controlling plurality test gives the police clear guidance without creating any troubling incentives.  When officers make an arrest for drunk driving, they will still want to bring the person to the station house and do a reliable breath test once there as Birchfield permits. The Mitchell plurality rule kicks in only when the person has passed out and no reliable breath test has been done—and that point, no reliable breath test can be done.

At that point, after the officers have brought the unconscious person to the hospital, they can request the medical professionals to do a blood test without a warrant as long as the warrantless blood draw isn’t some sort of weird outlier step when no blood draw would have been conducted otherwise and the officers aren’t just sitting around and could have obtained a warrant.  Try the less invasive breath test first, the law is telling officers, and only do a blood draw if there’s no other way to get a reliable test and the hospital personnel do it.  And then get a warrant if you have time and it won’t interfere with other duties, but you don’t need a warrant if you don’t have time and it would interfere with your other work.

Admittedly, much of my reaction comes from it not being clear to me how much difference a warrant makes in this particular setting.  In the cases covered by Mitchell, an unconscious driver has been admitted to the hospital.  Probable cause is thought to exist that he was driving drunk.  If a warrant is required, an officer would contact the judge, say he’s at the hospital with the unconscious driver, and make the case for probable cause to believe that the person drove while intoxicated.  If the judge agrees, medical personnel would do the blood draw.

But I wonder, how much practical difference does it make whether there is a warrant in that setting?  The probable cause needed to get the blood draw warrant seems the same as the probable cause needed to make the drunk driving arrest.  That arrest is something that the Fourth Amendment has already permitted without a warrant, and for which there already must be a post-arrest review presumptively within 48 hours under County of Riverside.   What does a warrant requirement in that setting add?  Given that the driver is now passed out, it’s probably not too hard to show he was intoxicated.  And I would think it is the relatively rare case when whether the person had been driving was in doubt.  The actual draw, to be conducted by medical professionals, is not likely to be conducted in an unreasonable way.  In that setting, it’s not clear to me how much a warrant adds.

Justice Sotomayor suggests in her dissent that existing precedents already squarely answered that a warrant was required for a blood draw, and that the plurality rule guts the warrant requirement, “strik[ing] another needless blow at the protections guaranteed by the Fourth Amendment.”  “If there is time” to get a warrant for the blood draw, Justice Sotomayor argues, then the Fourth Amendment should require that the police must do so.  Putting aside that I don’t think the precedents answered this question, I wasn’t convinced that the plurality’s rule is so untethered.  As noted above, I would think the effect of the rule is to have medical personnel do the blood draw at the hospital in a circumstance when probable cause is not likely to be in doubt.

That’s not to say that Justice Sotomayor’s proposed rule was problematic.  I think both the plurality and dissent approaches are reasonable answers to this problem.  But I don’t see the plurality approach as somehow out of step with prior rulings or as particularly problematic.

VI.  A Concluding Thought on Rules and Standards

A final thought on Mitchell is that there is a really interesting undercurrent on the choice between rules and standards in Fourth Amendment law.  Some Fourth Amendment exceptions to the warrant requirement traditionally work like bright-line rules—specifically, consent and search incident to arrest.  Other exceptions to the warrant requirement traditionally work like standards—of particular relevance here, exigent circumstances.

On one hand, the Justices in cases like Mitchell and Birchfield and McNeely are presented with recurring circumstances that call out for some kind of rule.  The police run into these situations often, and they need to know when they need a warrant.  On the other hand, the practical problem of when to allow various alcohol tests is also something that calls out for some kind of nuanced standard.  You wouldn’t want the police to just arrest people and do blood draws on their own whenever they want, and you wouldn’t want the police to have to get a warrant in every case.

I think you see many the Justices in these cases grappling with how to satisfy both concerns at once  They want both a nuanced approach that is also relatively rule-oriented.  So in McNeely, the Court rejected a per se rule of exigency—that’s too unbalanced. Then in Birchfield, the Court adopted one clear rule for breath tests and another clear rule for blood draws—two clear rules, but different rules for different tests.  And finally, in Mitchell, the plurality interprets a standard-based exception in a way that leads to a fairly specific set of rules.

Of course, the Justices don’t all agree on how to strike the balance. No surprise that Justice Alito will strike the balance differently than Justice Sotomayor.  And Justice Thomas has been an outlier on these issues since McNeely with a bright-line view based on exigent circumstances.  But I think you can see a lot of the Justices really grappling with how to balance the need for rules and standards based on the practical problem confronting them.

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Where Does Trump Go From Here With Iran?

Authored by Tom Luongo via The Strategic Culture Foundation,

Donald Trump has boxed himself into a corner. His maximum pressure campaign on Russia, China, Iran and the Palestinians isn’t working. Time is ticking by and we are now, officially, into campaign season for 2020, when these operations were supposed to have been resolved by now.

While Trump still draws nearly unfathomable crowds for his rallies he is staring at an abyss of bad decisions in front of him which will see him either reverse course on all of his signature wins with his base over the past year – getting tough on Iran and China, going after evil socialists in Venezuela – or face a global economic meltdown which his daily Surreality Show is fomenting.

Trump refuses to take responsibility for anything that is happening. Everything is someone else’s fault.

  • Trade balance? China. Europe. Mexico. Canada.

  • Unrest in the Middle East? Iran. ISIS. Hezbollah. Russia.

  • Collapse and conflict in Ukraine? Russia.

  • Border Security? The Democrats.

  • Interest Rates? The Fed.

His inability to see how his moves affect events in the context of the global arena is his greatest weakness. It should have been a strength, his lack of shame. But it isn’t. Because now he’s gotten himself so far over-extended on Iran he’s been exposed as all bark and no bite.

He’s pushed Iran into a corner and from that corner they decided to finally strike back by downing a Global Hawk drone flying in full stealth mode over Iranian airspace if the Iranian side of the story is to be believed.

And regardless of the specifics of the situation, since we will never know the truth of the matter, the outcome and the way the narratives were handled it’s clear that Iran was sending a very strong message to the US.

Not one more inch.

Because while the US is more than capable of wiping Iran off the map for all intents and purposes, the truth is that for all of that capability, the after-effects of using it would be devastating for the world.

In common parlance the term is ‘blowback.’

The Western financial system is very much a paper tiger. And I do believe someone finally whispered in Trump’s ear after the drone was shot down that if he strikes Iran the consequences would be devastating for everyone.

Remember, Iran has nothing left to lose financially. The US has tried to take it all away. If the sanctions are working they are only doing so to accelerate the timetable which brought us to this point.

And a man who has nothing left to lose is a man who could easily lose it and take everyone with him. Pepe Escobar wrote about this at length recently. And while I agree with his overall thesis I think he’s out over his skis about the numbers themselves.

Suffice it to say that with nearly $13 trillion in negative-yielding debt, Deutsche Bank functionally insolvent and oil supplies vulnerable to supply shock that the aftermath of a series of attacks on infrastructure around the region, that over-leveraged capital markets trading at nose-bleed prices could collapse quickly triggering cascading defaults around the globe.

Regardless of the specifics, chaos would be the order of the day and markets hate chaos.

So Iran shot down that drone knowing full well that any US response would be disproportionate, to use Trump’s words. It took a level of character I didn’t think he or anyone else thought he had in calling off the airstrikes.

So I’ll give him credit for that. He needs to do more of it. And his signaling to Iran that he’s willing to talk with no pre-conditions is proof that he’s got negotiations on his mind. But Iran can no more come to the table with Trump than Trump can back down on his bluster and sabre-rattling with Iran.

Iran is right to say they won’t negotiate at gunpoint. This is especially true when it has been revealed that the guns themselves can’t actually be fired. Their leadership would collapse overnight if they began talks with Trump. That drone is now a rallying point for Iranians to support their government on in the short-term.

They gain nothing by coming to the table. Foreign Minister Javad Zarif went on a charm tour earlier this year to make Iran’s case and was roundly ignored by the US The opportunity was there then and the message from Iran was ignored.

What’s changed now that Trump wants to talk?

The sanctions are working? Please, don’t make me laugh. Russia’s National Security Advisor Nikolai Patrushev made it clear in his remarks that Russia stands behind Iran and that it will not tolerate any more aggression by the US I’m sure John Bolton’s mustache didn’t want to hear that.

“In the context of the statements made by our partners with regard to a major regional power, namely Iran, I would like to say the following: Iran has always been and remains our ally and partner, with which we are consistently developing relations both on bilateral basis and within multilateral formats,” Patrushev said after the trilateral meeting.

“This is why we believe that it is inadmissible to describe Iran as a major threat to regional security and, moreover, to put it on par with the Islamic State or any other terrorist organization,” Patrushev stated.

Russia’s National Security Advisor calling Iran an ally was significant. And I have to think that given some of the circumstances surrounding the drone that part of Iran’s message was 1) we have better weapons than you think we had and 2) the Russians gave them to us while denying it.

So, if you are coming after us it will have to be at a level that will make everyone outside of K-Street very uncomfortable. Trump will literally have to ‘go big or go home.’ Given the circumstances that seems unlikely.

It is in Russia’s long-term best interest to keep Iran stable and relatively prosperous. They cannot afford a failed state and chaos in Iran. Note the timing of violent uprisings in Georgia. Don’t think these things are related? Think again.

Keeping the Russians busy with multiple hotspots is the plan here. But Russia isn’t confused about this strategy. Expect in the coming weeks to see more direct support from Russia to Iran. I wouldn’t be surprised if the Goods-for-Oil program hasn’t already been expanded and that Iran is one of those countries the Bank of Russia mentioned wanting access to Russia’s version of SWIFT, SPFS, to clear transactions sanctioned by the US

It’s not like it would matter one bit to most Russian banks since they are already sanctioned by the US in the first place.

Once that happens and it’s clear the US will not stop Iranian tankers from sailing, all that remains is for the proper financial intermediaries to be put in place to keep the US off balance and Iran’s oil will flow.

The sanctions will be in effect, Iran will be starved of dollars and the medium-term pain will be acute. But it will be another move away from the dollar settling the trade of oil.

So back to my original question, where does Trump go from here?

Iran won’t allow him to save face. I don’t have a good answer for that but Iran is betting that re-election will stay his hand for another year. He can and should start with firing the architects of this failed ‘maximum pressure’ policy and send everyone a clear signal that he’s ready to climb off the mountain they’ve built for him.

As long as the US, Israel and Saudi Arabia look the other way while Iran ‘smuggles’ its oil everything will calm down. If they don’t then things will get ugly from here for all involved.

via ZeroHedge News https://ift.tt/2LxQdR1 Tyler Durden

Modern Day “Hamburglar” Breaks Into Wendy’s And Steals Safe – But Only After Cooking Himself A Burger

Why does it seem like these things always happen in Florida?

South Florida authorities are trying to track down a man that they are actually referring to as a modern day “Hamburglar”, according to WSB TV. The man allegedly broke into a fast food restaurant and stole the restaurant’s safe – but not before making himself a hamburger.

And despite the hamburglar traditionally showing up at McDonald’s, this thief broke into a Wendy’s on Sunday, according to the Martin County Sheriff’s Office. The office said that the man used a brick to smash in the door at the restaurant before turning on the oven to make himself a meal. The same suspect also reportedly tried to break into a second restaurant and a nearby gas station.

“I think he was drunk,” said Vinay Solanki, the manager of the gas station.

Yeah. And hungry.

The Martin County Sheriff’s Office has put out an APB for the man, who has a tattoo on his left upper arm and is described as heavyset and in his mid-30s with facial hair.

He walked out with “more than just a full belly” according to the Sheriff’s office’s Facebook post. 

 

via ZeroHedge News https://ift.tt/2XfQcDQ Tyler Durden

Deloitte: China Looking To Use Blockchain As A “Strategic Weapon”

Authored by Helen Partz via CoinTelegraph.com,

As much as 73% of Chinese enterprises believe that blockchain is a top-five strategic priority, according to a report by Big Four audit and consulting firm Deloitte released on June 27.

image courtesy of CoinTelegraph

In the report, titled “Deloitte’s 2019 Global Blockchain Survey,” the company surveyed 1,386 enterprise representatives in 11 countries, including 200 respondents in China to provide a greater knowledge about major attitudes and investments in blockchain as a technology.

The research was conducted between Feb. 8, 2019, and March 4, Deloitte noted in the report.

Coverage of Deloitte’s 2019 Global Blockchain Survey. Source: Deloitte

According to the survey results, Chinese enterprise employees have expressed the highest rate of confidence that blockchain tech is one of the top-five critical priorities in the country, while the same metrics in the United States has accounted for 56%.

At the same time, on a global scale, 53% of respondents claimed that they see distributed ledger technology (DLT) as a top-five strategic priority, up 10% from the numbers of 2018, according to the report.

Paul Sin, leader of Deloitte’s Asia-Pacific blockchain lab and consulting partner at Deloitte Advisory, noted in the report that China will be implementing blockchain strategically “more than anywhere else in the world” instead of “tactically.” He wrote in the report:

“More projects [in China] are driven by top management who use blockchain as a strategic weapon rather than a productivity tool.”

While China has been among anti-crypto countries, having banned both initial coin offerings (ICOs) and bitcoin (BTC)-to-fiat exchanges in late 2017, the country has been actively disrupting the underlying technology of crypto. In March 2018, Financial Times reported that the most patent filings for blockchain tech to the World Intellectual Property Organization (WIPO) in 2017 came from China.

Since then, blockchain has remained a major focus of the development in China, with the country reportedly leading the world in the number of developed blockchain projects as of April 2019. Alongside, China’s tight policies to crypto have not appeared to soften so far, with the country’s social media giant and payment service supplier WeChat having banned crypto transactions in its payments policy in May 2019.

via ZeroHedge News https://ift.tt/2XiEoAG Tyler Durden

China Confirms Test Of Sub-Launched Ballistic Missile After “Mystery Lights” Filmed

After in early June a mysterious light shooting across the horizon with what onlookers described as a ‘massive tail’ was spotted in the sky, alarming residents across several central China provinces, Beijing has now belatedly suggested it was part of a successful test of its next-generation submarine-launched ballistic missile, the JL-3.

Images of the mysterious military test circulated through June, fueling intense speculation. Via NavalNews.com

“The scientific research and tests conducted according to plan are normal,” a Ministry of National Defense was cited in Chinese state sources as saying of the June 2 test in comments delivered late last week.

While the statements didn’t precisely confirm it was the next generation JL-3, multiple international outlets are taking this as “confirmation” given the intense month-long speculation and the PLA’s very visible non-denial. 

Throughout June media reports speculated whether it was a “UFO or missile test”.

Alarmingly, the JL-3 is capable of delivering a nuclear strike on the American mainland via hypersonic warhead; however, a People’s Liberation Army (PLA) spokesman was quick to emphasize, “These tests are not targeted against any country or specific entity.”

According to The Daily Mail, “American officials said the JL-3 was launched from a submarine test platform in the Bohai Sea and flew several thousand miles to a missile impact range in western China.”

Prior reports out of Chinese media claimed the JL-3 possesses a full operational range of between 7,400 miles and approaching 9,000 miles – putting the US coast within easy strike distance. 

Videos showing a “mysterious light” went viral during early June on Chinese social media, fueling intense speculation over secretive military tests conducted by the PLA. China’s Global Times said many residents expressed concern over “UFO sightings”.

The PLA spokesman added further in his statements: “China has always followed a defense policy which is defensive in nature and an active defense military strategy. The development of weapons and equipment is to meet the basic needs of safeguarding China’s national security.”

However as the Washington Free Beacon pointed out in its report:

American defense officials disputed the Chinese claim that the test was not targeted at any country and said the missile firing on June 2 coincided with the visit to Asia by then-acting defense secretary Patrick Shanahan.

The intercontinental “Julang” series translates to ‘big waves’ – named for being specifically developed to outfit China’s growing nuclear-powered submarine arsenal, something the Pentagon has been monitoring closely with increased alarm.

via ZeroHedge News https://ift.tt/2XELC6d Tyler Durden