(Editor’s note: Annie Fisher is an attorney with the Defender Association of Philadelphia and currently teaches the Criminal Defense Clinic at the University of Pennsylvania Law School.  She is a 1994 graduate of Barnard College and a 2004 graduate of the University of Pennsylvania Law School.)

Both the United States and the Pennsylvania Constitutions protect against unreasonable searches and seizures.  These protections have been further honed through case law that works to define what sort of search is deemed to be “unreasonable.”  However, as the Pennsylvania courts require more detailed justification for a frisk of a person, police are countering with increasingly vague and amorphous descriptions of suspicious behavior that work to justify an invasion of privacy.  What starts as an investigation quickly devolves into a police officer going into the pockets of an otherwise law abiding citizen on a fishing expedition that results in the officer retrieving small packets of drugs.  Because the justifications given are vague and hard to challenge, defendants’ rights against unreasonable searches and seizures continue to erode.

In Terry v. Ohio, the United States Supreme Court carved out a new category of inspection that fell somewhere between a “mere encounter” and a “search.”  Balancing the need for police officers to protect themselves, and the privacy rights of individuals, the Supreme Court came up with the “frisk.”  The frisk is a “limited search of the outer clothing” that can be done “for the protection of [the officer] and others in the area.”[1] In order to stop someone in the first place, Terry requires that there be a reasonable suspicion that criminal activity is afoot.[2] In order to then conduct a frisk of that person, the frisk may be done when “the persons with whom he is dealing may be armed and presently dangerous” and “where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own safety others’ safety.”[3] Pennsylvania adopted this same law in Commonwealth v. Hicks.[4]

It is one thing when a Terry frisk is done and a weapon is actually recovered, but in tens of thousands of misdemeanor cases in Philadelphia, the Terry frisk is merely a mechanism to get into the defendant’s pocket:

“[A] police officer may seize non-threatening contraband detected through the officer’s sense of touch during a Terry frisk if the officer is lawfully in a position to detect the presence of contraband, the incriminating nature of the contraband is immediately apparent from its tactile impression and the officer has a lawful right of access to the object.”[5]

Pennsylvania has adopted the same law.[6] Once the officer is in a position to do a frisk, he simply has to describe whatever he feels as “immediately apparent as contraband”[7] and all of a sudden an investigatory stop that is designed simply to investigate whether criminal activity is afoot ends up with packets of drugs being recovered from the defendant’s pockets: in other words, the frisk becomes a search.  As long as the police can justify the stop and the frisk, they are home free to recover anything that is in a defendant’s pockets as long as they know what language to use to justify it.

The Terry frisk allowed police officers to do a limited search with less than probable cause, but it was up to the state courts to further define what is required.  In Pennsylvania, police officers began justifying their frisks with the generic phrase “for officer’s safety.”  This presented a problem for the Pennsylvania courts, because in virtually every case where police conducted a Terry stop, they were able to justify an accompanying frisk by simply saying it was “for officer’s safety.”  In an effort to limit the amount of frisks that were going on, the Superior Court added the additional requirement that “to justify a frisk incident to an investigatory stop, the police need to point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous.”[8] Recognizing the abuse of power that was going on, the Court reasoned that “otherwise, the talismanic use of the phrase ‘for our own protection,’ a phrase invoked by the officers in this case, becomes meaningless.”[9]

However, just as police were quick to say that they frisked people “for their safety,” it did not take them long to adjust to this new requirement to describe articulable facts that the person they want to frisk is armed and dangerous.  One could imagine that this would require the officer to point to things that would require evidence, such as describing something hard and shiny and silver that was in the defendants pocket that the officer thought might be a gun, but turned out to be a cell phone.  Instead, officers are using vague descriptions that are unsupported by evidence and hard to challenge.  Two popular descriptions that police are using nowadays in court to justify their Terry frisks are that the defendant (a) had a bulge in his pocket, or (b) made a furtive movement.

Officers are fond of referring to the “bulge” they see in defendants’ pockets that lead them to believe the defendant might have a weapon.  The mere reference to seeing a bulge is usually enough for a Judge to find that the officer had a specific reason to believe the defendant was armed and dangerous.  A bulge could be a gun!  But often the surrounding facts do not support the plausibility of a bulge.  The defendant might be wearing baggy cargo shorts or pants with deep pockets, and the only thing taken from the defendant was a packet or two of drugs that are no bigger than the size of a postage stamp.  Despite the lack of corroboration, it is rare for a judge to call the officer a liar about what he says he saw, and agree that the frisk was not supported by reasonable suspicion that the defendant was armed and dangerous.

Perhaps even more troubling is the description that the defendant made “furtive” movements.  When testifying, this is frequently the totality of the description the officer will give to the Court.  It will be followed by “as a result of the furtive movements, I feared the defendant might be armed and dangerous so I frisked him, where I felt what I immediately knew to be narcotics packaging.”  Sometimes the “furtive movement” will be towards his waistband, making things sound even more fishy and dangerous.  The problems with these descriptions, is that they sound menacing, yet there is no way for the accused to defend against such a vague accusation.  Sure, the defendant could take the stand in his own defense and say that he did not make a furtive movement, but how do you really prove that?  Judges seem to overwhelmingly accept the officer’s vague description as an articulable fact that the officer legitimately feared for his safety.

In both these cases, police are using vague and hard to challenge justifications to be able to conduct what is supposed to be a frisk for their safety in order to justify going into defendants’ pockets in what is clearly a full on search that requires full probable cause.  Defendants are left with no way to challenge these assertions without simply calling the officers liars, leaving Judges left to decide who to believe—the defendant who actually had contraband in his pocket, or the police officer who was just trying to protect himself.  The result is that the safeguards intended to protect all of us from illegal searches are becoming no more than a sham.

(Editor’s Note: Vincent Ling is an Executive Editor of the University of Pennsylvania Journal of Constitutional Law. He is also pursuing a Master of Bioethics at Penn. His comment, “Patently Ours?:  The Constitutionality of DNA Patents,” will be published in Volume 14, Issue 3 of the Journal (February 2012). Vincent is a 2009 graduate of Duke University.)

Two decades after the United States Patent and Trademark Office granted the first patent on a gene,[1] the patent-eligibility of DNA is still hotly debated.  Recently, one high-profile case, Association for Molecular Pathology v. USPTO (Myriad),[2] thrust the legality of DNA patents back into the spotlight.  At issue in the case were composition and method claims in patents related to two genes for breast cancer susceptibility, BRCA1 and BRCA2.  While a woman born today in the United States has, on average, a 12% risk of developing breast cancer,[3] women with mutations in the BRCA1 and BRCA2 genes have a 50-80% chance of developing breast cancer.[4] The BRCA1 and BRCA2 genes and related screening methods thus were valuable patents. In July 2010, the district court in Myriad became the first U.S. court to ever invalidate a DNA patent.  It did so on statutory grounds, finding that isolated and purified DNA was a product of nature, a category of patent-ineligible subject matter under 35 U.S.C. § 101.  However, the plaintiffs also asserted novel constitutional arguments grounded in the First Amendment and the Constitution’s Patent Clause, which the district court declined to reach under the doctrine of constitutional avoidance.

No court has yet to address constitutional arguments against DNA patents.  On appeal, the Federal Circuit in Myriad reversed the lower court’s decision, finding that DNA patents (except those that claim merely “analyzing” or “comparing” DNA sequences) are in fact patent-eligible subject matter under patent law.  My forthcoming comment, Patently Ours?:  The Constitutionality of DNA Patents, confronts the constitutional issues that the courts have thus far declined to address and make a determination as to their legal weight.  I also explore additional constitutional issues that may become more salient over time.

Given the current constitutional jurisprudence, collaborative research environment, and relatively open licensing practices, none of the constitutional challenges to DNA patents I considered seem compelling enough to succeed today.  First, it is unlikely that DNA patents would violate fundamental rights by constituting “natural” infringement.  On the other hand, a First Amendment challenge would be intriguing if the Supreme Court someday views DNA not only as a chemical molecule but also as information.  Finally, arguments based on the Takings Clause, though narrower in scope, may emerge if judicial and social trends increasingly recognize property interests in biological material.  But even under the personhood view of property, it is not clear whether DNA should be considered individual property.

While the constitutional challenges above are largely misplaced, limited, or unlikely to succeed at this time, these arguments and new ones may gain traction over time.  The future of genetic technologies should instill mixed feelings of excitement and trepidation.  Given our world of scarce resources, genetic technologies will probably become more engrained in everyday needs while becoming more accessible to some but not to others.  This potential stratification poses a fundamental threat to our social and political system. A growing rift in access to genetic technologies could pose social equality issues, the severity of which cannot be predicted.[5]

Where advancements in genetic technologies take society is anyone’s guess.  However, with genetic progress comes the risk of polarizing society and marginalizing equal rights.  As the landscape and public perception of DNA patenting continues to evolve, the constitutional arguments discussed may become more compelling, and new constitutional issues may develop.  For the time being, though, critics of DNA patenting would be better served focusing on policy reform through the legislative process.

JCL editors will be live-blogging from the Journal’s 2012 Symposium: FDR and Obama: Are there Constitutional Law Lessons from the New Deal for the Obama Administration? Follow us online throughout the day on Friday, January 20th through the following link:

http://www.pennjcl.com/heightenedscrutiny/?page_id=9

(Editor’s Note: Dwayne Bensing is the Symposium Editor of the University of Pennsylvania Journal of Constitutional Law. His comment, “Science or Stigma: Potential Challenges to the FDA’s Ban on Gay Blood,” will be published in Volume 14, Issue 2 of the Journal (December 2011). Dwayne is a 2007 graduate of the University of Arkansas.)

There is a great need for blood in the United States.[1] Despite this great need, FDA guidance materials identify men who have had sexual contact with other men (“MSM”), even once, since 1977, as high-risk.[2] Hence, these men are given a lifetime deferral from donating blood.[3] This FDA Policy raises questions of constitutionality and legality because it is predicated on assumptions about HIV/AIDS that are not based in fact or theory, but based on mere stigma.[4]

A recent article I wrote, “Science or Stigma: Potential Challenges to the FDA’s Ban on Gay Blood,” addresses the potential constitutional challenges to the FDA Policy and explains how recent Supreme Court decisions, and interpretations of those decisions, change the legal landscape in favor of repeal.  It also provides a roadmap for administrative challenges to the FDA Policy and explains how these challenges differ from constitutional claims, augmenting the available legal arguments against the policy.  Finally, the article explores the ways in which administrative constitutionalism could play a role in successful challenging the blood ban through the Administrative Process.

This article is not intended to distract from or minimize the dangerous infection rates among MSM men.[5] Indeed, I believe that the alarming figures of HIV infection among gay men should serve to increase awareness among the gay community and spark public policy that serves to decrease the rates of new infections by increasing the availability and commonality of testing and treatment.  Nonetheless, the FDA’s MSM policy is unconstitutional, arbitrary and capricious, and discriminatory against gay men in a way that violates administrative understanding of the Equal Protection Clause.  This twenty-six-year-old ban should be lifted so that the blood supply benefits from new donors and so that our government no longer legitimizes the stigma attached to the blanket-ban on gay men.

-Dwayne J. Bensing, L’12 University of Pennsylvania Law School

(Editor’s Note: Helen Eisner is a Senior Editor of the University of Pennsylvania Journal of Constitutional Law. Her comment, “Disabled, Defenseless, and Still Deportable:  Why Deportation Without Representation Undermines Due Process Rights of Mentally Disabled Immigrants,” will be published in Volume 14, Issue 2 of the Journal (December 2011). Helen is a 2007 graduate of Cornell University.)

Believing that deportation meant he would be able to leave detention and go home, one self-represented, mentally ill, immigrant told an immigration judge “just deport me.”[1] In another case, a US citizen who suffered from bipolar disorder was deported to Mexico because he could not explain that he was an American citizen during his deportation hearing.[2] In a criminal proceeding, these immigrants would be granted the right to counsel, yet the same detainees facing deportation are forced to represent themselves.

In my forthcoming comment, “Disabled, Defenseless, and Still Deportable:  Why Deportation Without Representation Undermines Due Process Rights of Mentally Disabled Immigrants,” I present a due process argument for granting mentally disabled immigrants a right to counsel. Immigrants are afforded full due process rights under the Fifth Amendment, including the right to fair procedure.  In my Comment I first explain that mental disability is pervasive among immigration detainees and that having representation is almost essential for presenting a successful asylum claim.  I next draw a comparison between the vigorous protections for mentally disabled criminal defendants and the paucity of protections in the immigration context.  This deficiency is particularly striking in light of the fact that immigrant detainees and criminal defendants may both risk losing “all that makes life worth living.”[3] Finally, I present policy-based reasons to support the right to counsel for mentally disabled immigrants and include recommendations for improving the current plight of these detainees.

In an unprecedented decision in December 2010, a federal judge in the Central District of California held that to receive a fair hearing, two immigrants with mental disabilities should be provided with counsel.[4] The same judge is now deciding whether to grant class action status in a lawsuit brought on behalf of a group of mentally disabled immigrant detainees.[5] Thus, the federal court system is beginning to recognize that the detention of mentally disabled immigrants should not foretell automatic denial of asylum.  Additionally, the Obama Administration has signaled an interest in developing standards for addressing detainee mental health and assessing detainee competence.[6] Time will tell what steps are taken to correct the due process violations currently present in the immigration court system, but recent activity related to mentally disabled detainees suggests a growing recognition of the need for change.

Although immigration remains a contentious topic in this country, providing counsel for the mentally disabled is not a guarantee of asylum—it simply protects the constitutional requirement of due process and prevents a vulnerable population from suffering deportation without representation.

(Editor’s Note: Lindsay Kwoka is an Articles Editor for the University of Pennsylvania Journal of Constitutional Law. Her comment, “Trial by Sniper: The Legality of Targeted Killing in the War on Terror,” is published in Volume 14, Issue 1 of the Journal (October 2011).  Lindsay is a 2009 graduate of Gettysburg College.)

On September 30, 2011, the United States government took an unprecedented action as part of its efforts in the War on Terror: Completing a mission to target and kill a U.S. citizen.[1] The Obama administration used a C.I.A.-led drone strike to kill Anwar Al-Awlaki, a U.S. born muslim cleric residing in Yemen.[2] Al-Awlaki was alleged to be involved with al Qaeda and has been linked to a number of attacks, including the Christmas day bombing.[3]

Although targeted killing has been used for a number of years in the War on Terror, its use against an American citizen raises some troubling issues. In my recent Comment “Trial by Sniper: The Legality of Targeted Killing in the War on Terror,”[4] I discuss certain issues that arise from the use of targeted killing against U.S. citizens. In doing so, I recognize that the executive branch should be entitled to use this method as part of its efforts in the War on Terror. The executive branch, however, is constrained by the Authorization for Use of Military Force, which has been construed to permit only “necessary and appropriate” force. I conclude based on U.S. case law that targeted killing is only “necessary and appropriate” if it is the only way to prevent harm to the U.S., and other less intrusive means such as capture would not be feasible.

Many critics agree that the executive may (at least in some circumstances) use targeted killing. The controversial aspect of Al-Awlaki’s killing, however, is his citizenship, and consequently the lack of procedural protections he was afforded. I argue that because Al-Awlaki is still a U.S. citizen and because he had the most important interest at stake (his life interest), Due Process required at the very least that a neutral decisionmaker outside of the executive branch review the decision to target him prior to his death. Affording such a protection would reduce the possibility of error and would legitimize the actions of the executive in the eyes of Americans and in the eyes of other governments. Although it is not my position that the U.S. government should be entirely prevented from ever using targeted killing against U.S. citizens, the government should be constrained in the sense that one branch of government cannot unilaterally authorize such an action.

(Editor’s Note: Raghav Ahuja is a Senior Editor of the University of Pennsylvania Journal of Constitutional Law. His comment, “Constitutional in Name: The Bureau of Consumer Financial Protection and the Obama Administration’s Treatment of the Nondelegation Principle and the Appointments Clause,” is published in Volume 14, Issue 1 of the Journal (October 2011).  Raghav is a 2009 graduate of the University of Michigan.)

On October 6, 2011, the Senate banking committee voted along party lines to approve the appointment of Richard Cordray as the first Director of the Consumer Financial Protection Bureau.[1] Senate Republicans responded promptly by reaffirming their vow to block a full chamber vote on Cordray’s appointment until certain changes are made to the Bureau’s structure and powers.[2] Some of the changes demanded by Republicans are: (1) replacing the Bureau’s single Director with a five person commission,[3] (2) strengthening the authority of the Financial Stability Oversight Council to review regulations issued by the Bureau,[4] and (3) subjecting the Bureau’s funding to the congressional appropriations process.[5]

In a recent article, I criticized the Obama administration for its appointment without Senate approval of Elizabeth Warren as “Assistant to the President and Special Advisor to the Secretary of the Treasury on the Consumer Financial Protection Bureau.” Specifically, I concluded that while the appointment did not technically violate the Appointments Clause, that it was nevertheless in conflict with the spirit of the law and was particularly troubling because of the Administration’s failure to define the scope of Warren’s powers. My criticism of the Administration, however, should not be misconstrued as an endorsement of the tactics currently being used by Republicans to resolve their concerns about the Bureau. In fact, by exploiting the “advice and consent” requirement of Article 2 Section II so as to effectively repeal portions of a law that was enacted in accordance with the procedure mandated by both the Constitution and Congress’s own rules, Republicans are engaging in at least as great a violation of the spirit of the law as I earlier accused the Administration of.

While this certainly is not the first time an appointment has been held up because of partisan bickering, what makes the current Republican strategy particularly troubling is that their opposition to the appointment has little to do with Cordray’s competence or ideology, but rather, is founded in factors completed unrelated to how he would manage his responsibilities as the Bureau’s Director. It is one thing to delay a vote in hope of putting it off until your party is in power and can choose its own nominee, but delaying a vote indefinitely so as to prevent the implementation of previously enacted legislation is quite another. After all, the Senate has already given its “advice and consent” on the legislation creating the Bureau – it approved Dodd-Frank with the 60-vote supermajority necessary to overcome a filibuster. The task before it now is to provide “advice and consent” on the nominee chosen to lead the Bureau. If Republicans are opposed to a Cordray directorship because of something he has written, said, or done – they should go ahead and filibuster him on those grounds. While even this may be worthy of criticism, I would view it as simply part of the ridiculous appointment confirmation process that both parties have allowed to become the norm. For a party recently invigorated by leaders who tout themselves as “constitutional conservatives,” however, finding brand new ways of manipulating the Appointments Clause seems hypocritical to say the least.

(Editor’s note: Brendan Stuart is the Research and Technology Editor of the University of Pennsylvania Journal of Constitutional Law)

Greetings and welcome to Heightened Scrutiny, the online supplement of the University of Pennsylvania Journal of Constitutional Law.  Heightened Scrutiny seeks to further Constitutional law scholarship in a public and accessible manner through postings by academics, practitioners, students, and other commentators on topics of Constitutional law.  Anyone who wishes to submit content may do so through the “Submissions” link at the top of this page.

– Brendan J. Stuart, L’12 University of Pennsylvania Law School

Welcome to Heightened Scrutiny, the online supplement to the University of Pennsylvania Journal of Constitutional Law.

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