The Freedom Bulletin

The Supreme Court made a great ruling yesterday, unanimously declaring that, absent a warrant or probable cause, it is unconstitutional for police to track people’s movements by attaching a GPS device to their car.

As Justice Sotomayor points out:

“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familiar, political, professional, religious, and sexual associations … The Government can store such records and efficiently mine them for information years into the future … And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’ “

Read the full text of the ruling, in the case of United States v. Antoine Jones, here.

This week the Supreme Court heard arguments in the case of Albert Florence. Horrifically, Mr. Florence was wrongly arrested due to a computer mistake for failing to pay a traffic fine, which he had actually paid, and was then thrown in jail and strip searched twice. The Court is deciding whether New Jersey’s practice of strip-searching all inmates who are held in jail before trial is constitutional.

Interestingly, the more “liberal” justices seemed more opposed to strip searches and the more “conservative” ones seemed to lean toward supporting them.

Justice Sotomayor said that much contraband enters jails ”not on intake, but…from corrupt correction officials” and reminded her fellow justices of a very important principle, asking, ”What are we doing with the presumption of innocence? That’s also a constitutional right.”

Justice Kagan contrasted this case with a 1979 decision approving body cavity searches after contact visits, saying, ”Here, you are talking about somebody who is arrested on the spot. There is no opportunity for planning, for conspiracy with respect to contraband.”

Justice Scalia claimed that strip searches were routine at the time the Bill of Rights was ratified. Although I don’t know for sure, that would be very surprising to me. He also implied that it would be okay to strip someone “to see if the person has any fleas or cooties or, you know, any other communicable disease before he is put into the general population.”

My view:

Although jail officials and people who support strip searches do not refer to them as a punishment and do not conduct them for that purpose, being subjected to such a degrading invasion of privacy is unarguably a punishment, and a severe one at that. It is always wrong to inflict punishments on people who have not been convicted of a crime, both from a common-sense point of view and according to the Fifth Amendment to the Constitution, which forbids that anyone ”be deprived of life, liberty, or property, without due process of law.” Heck, you could even argue the more radical position that strip searches, even of people who have been convicted of crimes, are unconstitutional because they are a “cruel and unusual” punishment under the Eighth Amendment.

Looking at the debate from a slightly different angle, using common sense about searches and seizures also makes it clear that strip searching people, when there is no reason to suspect they may be hiding weapons or contraband, is unconstitutional. If someone is arrested, then presumably there is reasonable suspicion that they committed some crime. But the strip search is not related to finding evidence of a crime, it is done for safety and security purposes. If the inmate has done nothing to raise suspicion of smuggling contraband, then there is no reasonable suspicion to conduct a strip search, and it therefore violates the Fourth Amendment. This is even more true when someone is arrested for a minor offense such as failing to pay a traffic ticket.

A lawyer from the Department of Justice told the Court, ”You cannot say that there are some minor offenders that don’t pose a contraband risk. You have individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly.” But a strip search is a severe violation of a person’s dignity, privacy, and sexual integrity. The burden of justification must always be on those who want to inflict such a violation, and it is certainly not enough of a justification that there is some chance, however small, that the person might have contraband. If you don’t have enough time to figure out which inmates raise a reasonable suspicion, you shouldn’t be searching anyone.

In my opinion, this particular case is a no-brainer. Punishing people in this way, when they must be presumed innocent and have done nothing to raise suspicion, is unconstitutional, and I hope the Supreme Court recognizes this.

Florida Governor Rick Scott recently signed a law requiring people to pass a drug test in order to receive welfare, and several other states have been debating and voting on similar measures. The ACLU is suing Florida over the requirement, saying that it constitutes a suspicionless search and seizure, in violation of the Fourth Amendment. I agree with them.

While I share the desire to decrease spending on welfare, and the idea that someone with enough money to afford drugs shouldn’t be getting welfare, requiring people to give a urine sample is just plain wrong. I actually don’t think welfare should exist at all – forcibly taking from people with money and giving to those without is not the best solution to poverty – but having welfare plus mandatory drug testing is just adding one wrong on top of another.

Being made to give a urine sample is degrading. It also violates people’s privacy rights, since what substances are in your urine are none of the government’s business. Instead of merely blocking drug users from receiving welfare, the urine test requirement punishes all welfare applicants by taking away their dignity and privacy. It is indeed a search – quite an invasive one at that – that would be performed on all applicants, regardless of whether there was any reason to suspect them of wrongdoing.

One could argue that you don’t need to apply for welfare, so no one is required to submit to the search, but this is like justifying the use of naked machines and pat-downs by saying that no one needs to fly. Some people need to fly for their jobs, just as some people need welfare money in order to live. In any case, people should be free to choose travel plans and methods of transportation, as well as to apply for government assistance, without having to include in their calculus the need to avoid degrading searches.

If you want to cut welfare spending, just cut welfare spending…or even abolish it. Drug tests inflict degradation on all welfare recipients, which is in itself a grievous wrong, and solve nothing.

The suppression hearing in the Thomas Mortimer IV case finished up today with testimony from four state troopers who executed search warrants in the quadruple murder case. To sum up, on Friday we learned that officers made three warrantless searches of the Winchester, MA home where Mortimer lived with his wife, Laura Stone Mortimer, mother-in-law, Ellen Stone, son Thomas “Finn” Mortimer V, and daughter Charlotte Mortimer. The first was to conduct a well-being check at the request of Laura’s sister, Debra Stone Sochat, the second was to remove Ellen’s dog from the home, and the third was a more thorough sweep of the home to make sure there were no injured people or a suspect. Mortimer’s defense lawyer, Denise Regan, filed a motion to suppress all evidence gathered as a result of these searches because they took place before any search warrants were issued. She also filed a motion to suppress evidence that was gathered after search warrants arrived but was outside the scope of the warrants, and it was that motion that was the focus of today’s testimony.

Witness by witness, here’s what the court heard today:

Trooper David Twomey of the state police searched Mortimer’s home in the late afternoon of June 16, 2010, pursuant to a warrant. He found five “separately designated,” typed copies of a letter that Mortimer allegedly wrote, confessing to killing his wife, children, and mother-in-law. One was in the trash in the kitchen, along with bloodstained napkins, Quaker granola bar boxes, batteries, and a bluish pill. Another letter was on the coffee table in the family room, where Laura’s and Finn’s bodies were found, along with more pills, two glasses, and a can of Red Bull. Another letter was on the kitchen counter, and yet another was on the kitchen table. Additionally, in the basement, near the door leading from the house to the garage, were plastic bags with “what appeared to be vomit and clothing,” which Twomey indicated were large enough to fit over an adult’s head. A red Lexus in the garage had a garden hose hooked up from the exhaust pipe to the window, as well as a hammer and a knife in the passenger seat, and in the laundry room was more prescription medication. During cross-examination, Twomey was asked if he read the letter on the coffee table, and he admitted, “I did peruse through it, but my primary function was to document the scene.” He also said that the letters in the trash weren’t ripped up and weren’t visible until he went through the trash.

Trooper Jeffrey Saunders, also of the state police, kept a record of all items seized during the search of the home. He found typewritten letters in a wastebasket in the basement, near a computer and printer, which he read and which “appeared similar” to the others found in the house.

Sgt. Robert Manning was in charge of the search of the house and was the one who actually brought the search warrant applications to a superior court judge. (He was familiar to me because he questioned Neil Entwistle and testified in his trial.) After getting a search warrant for the home at 4:40 p.m. on June 16, he obtained a warrant for Mortimer’s arrest in the early morning hours of June 17. Cell tower records indicated at one point that Mortimer was near Andover, MA, and his cell phone was found in the trash at a gas station in that area. A bulletin was sent out to the public to be on alert for him, and Manning was informed of Mortimer’s arrest after police received a tip from the small town of Bernardston, MA. That evening he obtained and executed additional warrants for the three computers in the Winchester home and for documents and financial records. In the home he noticed three pieces of evidence consistent with a suicide attempt: the hose attached to the car exhaust pipe, the bag with clothing with vomit on it, and the prescription drugs on the coffee table, which he described as a sleep aid in Ellen’s name. There were also receipts, a bank statement, and an unemployment assistance form.

Trooper Scott McCormack described the search of the home. In the laundry room, “there was a considerable amount of blood on the floor, as well as two handbags that were strewn about.” He also mentioned the pieces of evidence that were consistent with a suicide attempt, adding that the clothing in the plastic bag was men’s clothing. Additionally, he searched the car that Mortimer was driving when he was arrested, a Toyota Highlander. His wallet was in the front driver’s side, containing less than $100 cash, two TD Bank cards in Tom’s and Laura’s names, Tom’s Brookline Bank debit card, Laura’s American Express, and two Simon gift cards, one of which had a phone number on it that was found in the phone records of Ellen’s landline. Right before this call, at 7:22 a.m. on June 15, the same phone had called both Tom’s employer and Finn’s day care, and interviews with those two places indicated that Tom had called himself and his son in sick. McCormack said of this evidence, “I believe that they showed that…Thomas Mortimer needed some sort of financial means to maintain his existence on the run, on the flight.” A lottery ticket in the car, with a date of June 12, was, according to him, “a chance at financial means to be gained after the homicide.” Batteries, a water bottle, and a flashlight were in the console, and a PowerAde, a roll of toilet paper, strewn-about clothing, and a gallon of water were in the back seat. A backpack in the wayback contained wipes, water bottles, plastic silverware, and Quaker granola bars, and a duffel bag contained gauze pads, ointment, a sewing kit, and more clothes. According to a receipt in the car, Mortimer used his wife’s American Express card to purchase Peppermint Patties at Hess Express in Winchester at 7:44 a.m. on June 15.  All these items, McCormack said, “showed…Mr. Mortimer’s actions after the murders. Obviously flight was his intention, which would again go to consciousness of guilt.”

It looks like Mortimer may have tried to kill himself in four different ways…but (obviously) none of them worked.

After a very brief recess for a court procedure in another case, prosecutor Adrienne Lynch said that she would have called another witness, Trooper Jay McCartney, but because he was unavailable, both sides stipulated to what he would have testified: that he executed a search warrant in the house and car, could describe the contents of the trash and car, saw bloodstains, and photographed all this evidence.

On Friday, there were mentions of two defense witnesses who would be called today, but they never ended up taking the stand. After the defense files a supplemental memorandum, the next court date, for oral arguments on the suppression motions, will be October 24 at 9:00 a.m.

More from the Winchester Patch and Winchester Star.

Remember Thomas Mortimer IV, the Winchester, MA man accused of four murders? After a long time without any hearings in his case, there was a pretty big one today. Mortimer’s defense team filed a two motions to suppress evidence, one based on a warrantless search and the other on a search that exceeded the scope of the warrant.

Mortimer, 44, stands accused of the first-degree murders of his wife, Laura Stone Mortimer, mother-in-law Ragna Ellen Stone, and children Thomas “Finn” Mortimer V and Charlotte Mortimer. Seven witnesses took the stand today, including Laura’s sister, Debra Stone Sochat, to describe the day the four bodies were discovered.

Mortimer entered the courtroom at about 9:10, calm and somewhat detached-looking, wearing the same outfit that he has worn at previous hearings – a light blue shirt, crimson tie, and khaki pants. He wore handcuffs and chains around his ankles for the entire hearing and sat at the defense table with his lawyers, Denise Regan and Eva Vekos.

The hearing, before Middlesex Superior Court Judge Leila R. Kern, opened with a brief discussion of a defense motion to sequester the witnesses. Assistant District Attorney Adrienne Lynch argued that Debra Sochat should be allowed to watch the other witnesses’ testimony because “she is the survivor of these four homicide victims and she would like to be at the hearing.” Both sides quickly agreed that Debra, the second witness of the day, should sit out the first witness’s testimony but could be there for the rest.

Here is a rundown of what we learned at the hearing, witness by witness:

Daniel P. Murphy is Debra Stone Sochat’s neighbor. A retired mechanic at the Winchester Department of Public Works, he is friendly with many of the police and firefighters in the town. He described how on June 16, 2010 he drove with Debra and her two children to the home at 2 Windsong Lane where her mother, sister, niece, nephew, and brother-in-law lived. Debra was worried because she hadn’t been able to reach her mother in two days. After unsuccessfully trying all the doors and looking in the windows, Murphy offered to kick down the main door, between the house and the garage, but ended up calling the Winchester Police Department when they noticed that the house had an alarm that might go off. While waiting for the police to arrive, Murphy saw a chilling sight through the windows near the main door: “some bloodstains on the floor and on the switch if you look through the window.” Firefighters broke open the door and he and Debra followed. “I got about two steps in the door,” Murphy testified, when the firefighters “rushed us out of the house.” He tried to calm Debra down, saying “she was just worried and nervous about her mother…had a feeling like there might have been something bad like she fell down the stairs or something.”

Debra Stone Sochat, Laura Mortimer’s sister and Ellen Stone’s daughter, took the stand looking somber but composed, with a black v-neck dress and her blond hair in a bun. “I saw my mother every day,” she said, adding that she spoke to her “at least five times a day.” Her parents, Ellen and David Stone, had owned the Windsong Lane home for 35 years, but their divorce was just becoming finalized at the time of Ellen’s death, and David had moved out a while ago.

She had plans on June 15 to have Ellen over and prepare her mother’s favorite dinner. The last time the two spoke by phone, on June 14, Ellen “was really looking forward to having the dinner and she sounded very happy.” Debra also spoke to her sister on the 14th, about a possible trip to Martha’s Vineyard that weekend. “Tom didn’t really want to go but they were still talking about it and they were still thinking they were going to go,” Debra explained, adding that their father had bought a boat for 4-year-old Finn and wanted him to see it. The next morning, June 15th, Debra called Laura on her cell phone to set up a playdate for Finn, 2-year-old Charlotte, and her two children, Alexandra, 2 1/2, and Christian, 8 months. Tom answered, which Debra considered “very unusual.” “Hi Tom, how are you?” she asked. He replied, “Hi Debbie, how are you?” and told her when she asked for Laura, “She’s upstairs, she’s busy. She’ll have to call you back…It’s going to be a while before she calls you back.”

The entire day, Debra repeatedly tried to contact her mother, sister, and brother-in-law on their land lines and cell phones. She and her family even ate the dinner they had prepared for Ellen, thinking that she may have just lost her phone, which she had done “many times before.” When neither Ellen’s best friend nor her brother had heard from her, Debra’s husband, David Sochat, became worried, saying “I think we should go over there. I have a funny feeling that something’s wrong.” However, Debra vetoed the idea because “Laura and Tom have a very strict schedule with the children. They’re always in bed by 8:30…They’re very regimented with their schedule.”

The next morning, however, when she still could not reach anyone, Debra decided to go over. Her concern grew when she saw that the trash barrels were still out in the street from the day before, and that the cars were not arranged how they usually were. “I knew at that point that something was strange,” she testified. She and her neighbor, Dan Murphy, tried all the windows and doors but heard nothing except Ellen’s dog barking in an upstairs bedroom. Through the windows near the front door she saw “a light switch on the wall…which had blood on it.” She added, “There was blood smeared on the panel of the wood going up the stairs, there was blood on the floor, there was blood on the wall going up the stairs.” The oriental rug that Ellen had just gotten cleaned and “had been asking Tom for months to help put down” was missing. “I was hoping in my heart that it was a misunderstanding and I didn’t want the police to show up,” she said, but eventually she and Murphy agreed that calling the police was the best thing to do. Lt. Steven Osborne of the Winchester Fire Department arrived, entered the house, and “told me to leave immediately, that my mother had fallen.” Debra explained that her mother “had some medical issues so I was very worried.” She waited in the car with her children, who kept asking whether they would get to see “Cha Cha,” their nickname for their grandmother. Finally, officers came out of the house and told Debra the tragic news.

When asked what she would have done if the police hadn’t come, she said, ”I would have thrown a rock through a window and gone in myself to check on my mother.”

Lt. Steven Osborne of the Winchester Fire Department responded to Dan Murphy’s call and was the first to enter the Windsong Lane house to conduct a well-being check. He explained that he regularly conducts well-being checks when there is a person that family members or neighbors can’t get in touch with and are worried about. He broke down the door to the house after walking around and knocking on all the doors unsuccessfully. “I saw a person lying on the floor,” he said, and nearby he saw a child’s body covered with a blanket, which he lifted up to reveal a “large wound to the neck.” He “immediately realized it was a crime scene and backed out of the building,” and informed the police when they arrived that there were two bodies in the house. During cross-examination by defense attorney Regan, he admitted that the fire department has no written guidelines or formal training regarding well-being checks.

Officer Claude Austin of the Winchester Police Department responded to the house and was told by Osborne, “It’s bad, we have two bodies.” He told his officers to spread out around the house and went inside. The bodies near the main door were “basically covered with blood” and there were “trails of blood” on the floor, as well as bloody footprints leading to the living room. The boy’s body – which turned out to be Finn – was “ice cold” and “laying over a pool of blood, his throat had been sliced, his eyes were open, pale to the touch, just lifeless.” The woman’s body nearby – later identified as Laura – was surrounded by 4-5 pints of blood, and Austin said, “the only way to tell where the face was, as opposed to the back of the head, was hair.” A roll of paper towels was on the floor nearby, “as if someone was trying to clean up but it was something they couldn’t handle.” Leading to the front hallway were “drops of blood,” which he followed, with his gun drawn, and discovered Ellen’s body in the living room with a rug “placed right over the whole body…in a manner to just cover it.” More blood droplets led up the stairs, where Austin heard a TV and a dog barking and called for backup. He looked in all the rooms, noticing a frying pan on one bed, which he considered “peculiar,” and in what looked like a child’s bedroom found a horrible scene. In the crib, he said, “I saw a baby in a fetal position with a pool of blood underneath.” After scanning all the rooms – except the attic and basement – to make sure there were no injured or dangerous people – the officers left. In the garage Austin noticed that a garden hose was hooked up to the car’s exhaust, with the windows shut, which he described as consistent with a suicide attempt. Additionally, there were a knife and a hammer on the passenger seat. Finally, he entered the house a second time to escort the dog, who had been trapped in the upstairs bedroom, out of the house so he wouldn’t be running around in the crime scene.

Sgt. Thomas Groux came to the crime scene as Lt. Austin’s backup. “It’s bad in there,” Austin told him. He entered the house and saw the bodies, which he described as having “massive trauma,” with Laura in a “pool of blood” and Finn with his “throat cut to the point where throat organs were hanging out.” Like Austin did, he described finding Ellen’s body and the trail of blood droplets going up the stairs. “We started going up to commence a search of the second floor,” he said, where he found Charlotte’s body. “There was a massive amount of blood in the crib itself,” he said, adding that trauma to her neck was visible although she was partially covered by a blanket. After leaving the house, Groux was “unsatisfied with the protective sweep that we had done…I just didn’t think the home was searched thoroughly enough for safety reasons.” So he and three other officers re-entered the house to check the basement and the bedroom where the dog was, which Austin hadn’t entered because he didn’t want the dog to escape. On cross-examination, he admitted that another Winchester police officer, Det. Wilkinson, entered the house to take pictures but “disengaged” because state police were taking over the investigation. He could not be 100% sure that Lt. McDonnell (or anyone else) hadn’t re-entered the house after he left, and additionally he said that he did not see any notes or letters in the house, which is significant because Mortimer is reported to have left letters confessing to the killings.

After a lunch break we heard from Trooper Scott McCormack of the Massachusetts State Police. When he arrived on the scene he was told that the home wasn’t secured, so he conducted a protective sweep with Sgt. Groux and other officers. “There was a distinct smell of human decomposition,” he said. “Finn was lying on his back…he had a very deliberate wound to his neck. It was very significant. His eyes were half open. He was covered in blood. He was lying in a pool of blood.” Near the bodies of Laura and Ellen, he observed “a tremendous amount of blood,” signs of a struggle including an overturned plant, and “a very distinctive dragging pattern.” Along with the other officers, he conducted a sweep of the entire house, including the attic, saying that “obviously it would heighten your sense of security.” He never looked anywhere other than where a person could be hiding, he said, nor did he enter the house again before a search warrant was issued later in the day. He spoke to Lt. McDonnell outside the home and said, “He clearly had been moved from what he’d observed. He was very emotional.” During cross-examination, he said that he had never been told that Winchester police had searched most of the house. He said that he observed notes in the home only after the issuance of the warrant. Regan mentioned various things that had happened as a result of the entry into the home: Mortimer’s car was seized and searched, he was arrested and taken to the Winchester police station, injuries were observed on him, biological samples were taken from him, photographs were taken of him, he spoke to his parents by phone, and he was overheard saying certain things (it wasn’t mentioned what exactly what these things were), which were confirmed in subsequent interviews with his parents.

The final witness of the day, Lt. Peter McDonnell of the Winchester Police Department, responded to the initial call for a well-being check at the Windsong Lane home. Sgt. Groux told him of the four bodies and that one bedroom and the basement had not been secured, so he participated in checking the home thoroughly along with Groux and Trooper McCormack. He did not, however, move or take any items.

Throughout all this testimony, Mortimer showed little emotion, at times whispering and nodding to his lawyers and smiling briefly on one occasion.

The hearing adjourned for the day at 3:00 but is still not over. Testimony is set to continue on Monday morning, I believe with two firefighters called by the defense.

More articles about today’s hearing from AP, Boston Globe, NECN, Winchester Patch, and Winchester Star.