Raping our Privacy? Our Bodies, Drones, Invasive Search and our Fourth Amendment Rights

When I wrote Fetal Abduction which is the true story of a mentally ill woman who murdered a pregnant woman to take her fetus and try to pass it on as her own I wrote the book because I was concerned about how the justice system seemed to fail a poor, Spanish speaking and mentally ill person who I felt needed an insanity defense. I was also appalled at how the Judge in the case ruled on issues of public safety. He found that evidence collected while Annette Morales Rodrigues was in Milwaukee County Police custody—evidence collected via two invasive vaginal exams—one that the police and the hospital both documented as her having adamantly refused—was allowable as it was in the interest of public safety. The Judge  justified the police decision not to waste their time to read Mrs. Morales Rodriguez her rights and allow her to exercise them because they thought a life may have been saved—although in fact the woman in question was already dead.

Now as we witness the controversy over the use of drones and the public discussion about their use overseas—as well as their future overhead—right here in the U.S.—we must think hard about what other threats we may ultimately face here of accepting too much emphasis on threats to public safety.  We must realize that we will always live with some level of threat—from terrorism and from other types of crimes such as the murder referenced above—and we must come to an acceptable means of balancing those concerns to that of our Fourth Amendment Rights protecting us against undue search and invasion of privacy.

Although vaginally searching a woman while under police custody in an examination she is clearly refusing seems to me to be about the worst case scenario I can imagine—there are other government sponsored invasions to privacy also to consider.  

And I worry that if a judge in Wisconsin can rule that a woman’s vagina can be invasively searched for the interest of public safety while she’s being held without being informed she’s under arrest, without her being able to contact her attorney, and without her rights even having been read to her—and this all done twice against her consent while being held by a police department who have incidentally been facing other scandals now being investigated by the U.S. federal government—then what’s to say drones won’t also be used for highly invasive purposes? Raping us in a sense of our dignity and privacy without us ever having the right to refuse?

In the case of Annette Morales Rodriguez the judge was ruling in reference to potentially saving one woman’s life at the expense of violating the rights of another.  What’s to be said if the government argues that multiple lives might be saved by invasively searching via drones from overhead of all of our back yards, our driveways, our patios, balconies, rooftops, our meeting places, and homes—possibly even our bodies—to learn who we are seeing, who visits us, and what we are doing in the privacy of our own homes? And this carried out via an increasing array of technology that will likely include acute visual, auditory and infrared sensing and much more.

It’s not a fantasy scenario. Indeed in 1989 the Supreme Court ruled in Florida v. Riley that a police helicopter “search” conducted without a warrant over Riley’s back yard in which a helicopter which was flown and hovered four hundred feet overhead allowing the police to see what they suspected—that the man was growing marijuana in a backyard greenhouse—was allowable.  While Riley argued that for the police to hover over his backyard in a helicopter—enabling them to view his private business and allowing them to see inside his fence—violated his expectation of privacy, the court ruled that it did not violate his Fourth Amendment rights.

However in 2001, the Supreme Court ruled in Kyllo vs. U.S.—a case again where the police learned that the homeowner was growing marijuana, in this case via heat lamps—that authorities scanning a home with an infrared camera without a search warrant was an invasion of privacy and constituted an unreasonable search barred by the Fourth Amendment.  The Supreme Court stated that a citizen has a “subjective expectation of privacy” in his own home and that a warrant is necessary to use remote sensing devices.

However, remember that this was before the “war on terror” at a time when the U.S. government was still adamantly protesting Israel’s practice of “targeted assassinations” calling them unacceptable extrajudicial killings. And keep in mind we are talking about a U.S. government who in regard to drones has granted to itself the right to strike anywhere, at anytime and in countries that are not at war with the United States and to do so endlessly—potentially setting up an international precedent that may create a significant and terrifying backlash.  There will be a future of drones overhead here in the U.S. and they will be invasively searching our lives—and perhaps even our bodies—unless we all get seriously concerned and speak up against it—before it’s too late.

Anne Speckhard, Ph.D. is the author of Fetal Abduction: The True Story of Multiple Personalities and Murder and Talking to Terrorists: Understanding the Psycho-Social Motivations of Militant Jihadi Terrorists, Mass Hostage Takers, Suicide Bombers & “Martyrs”

 

 

5 thoughts on “Raping our Privacy? Our Bodies, Drones, Invasive Search and our Fourth Amendment Rights

  1. Robert

    The judge who ruled against the mentally-ill woman – in the name of public safety, who murdered a pregnant woman, was legally justified in his decision. Why? There is a legal term in law called, “Parens Patriae – n. Latin for “father of his country,” the term for the doctrine that the government is the ultimate guardian of all people under a disability…” (http://dictionary.law.com/Default.aspx?selected=1444; retrieved 28 February 2103).

    So in essence, with the above clearly defined and cited, as a commonly asserted procedural part of the rule-of-law, specifically in cases like the one you discussed in your article, because this ‘adult woman’ possessed what was categorized as a ‘disability,’ the Court [government] can assume ultimate guardianship over the defendant, in the interest of public safety. Therefore, her Fourth Amendment rights are secondary in this case, whereby she is not of sound mind and is incapable of clearly & fully comprehending the magnitude of the nature of the cause of action brought against her.

    In the case of overhead drone flights within the US by local police and the federal government, I also have to side with the government and law enforcement’s use of drones and the absence of any Fourth Amendment legal standing for any private property owner. Why?

    If I am allowed to assert the technical textual legal interpretative issues – in direct reference to the Fourth Amendment of the U.S. Constitution, it clearly and concisely states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (http://www.law.cornell.edu/constitution/fourth_amendment; retreived 28 February 2013).

    Keywords cited in the above, are “….secure in their…houses.” The case you discussed, whereby the local police “….helicopter “search” conducted without a warrant over Riley’s back yard in which a helicopter which was flown and hovered four hundred feet overhead allowing the police to see what they suspected—that the man was growing marijuana in a backyard greenhouse—was allowable,” was a legal search and was not violative of Riley’s Fourth Amendment rights – as cited herein. Why?

    First and foremost, it appears the police may have obtained enough preliminary data/information from another source to warrant ‘probable cause’ to meet the Fourth Amendment legal standard; thereby, submitting a request for a search warrant to a magistrate/judge for review to issue to police, which allowed use of the overhead drone flight to confirm there was, in fact, marijuana being cultivated in Riley’s backyard on his property.

    Lastly, and the most specific, lies with the textual language contained within the Fourth Amendment. The marijuana Riley was growing was not “…secure in his house,” if you allow for the strictest legal interpretation of the Fourth Amendment. Meaning, it was growing out in the open for the police drone to clearly see and identify and not inside his residence or other structure on his property. Private property owners do not own the airspace over their homes, unless there is an obvious property line encroachment, which clearly reveals that the encroachment is ground based.

    Meaning, if your neighbor has an oak tree growing on their property and the branches are growing beyond their property line and extending onto your property you can ask your neighbor to trim the tree, so the branch is not extended onto your property. And if they refuse, you can initiate a civil suit to get the court to issue an order to force them to cut the branch. The tree is ground based and part of the physical make-up of the property and terrain. But not the airspace the tree is occupying.

    Respectfully,

    s/Mo

    Reply
  2. Anne Speckhard, Ph.D. Post author

    Thank you Robert/Mo for your very thoughtful and informative reply. If you read Fetal Abduction you will see in that Annette Morales Rodriguez was not designated as either incompetent to stand trial, nor insane at the time of her crime, so there was no basis for the judge to decide in her behalf. And he was ruling about a police action at the time of her arrest. I am not a lawyer so you can dance circles around me in regards to the law, but what I found disturbing was that any woman could be submitted to two vaginal exams (one that she clearly refused–as documented by both the police and the hospital) while being held by the police without them telling her she was under arrest and reading her rights to her. The judge looking back at that incident ruled in the interest of public safety since Annette Morales Rodriguez was being held as a suspect in the murder of a woman whose baby she had indeed taken from her body by cutting her open and that woman could have been bleeding out rather than already dead as the facts of the case actually portrayed in retrospect. As a woman living in this society I would like to think through all possibilities–that Annette Morales Rodriguez could also have been innocent of the crime–no one was sure until they did the exams AND she confessed under such duress (she had been a repetitive sexual assault victim as a child and a rape victim as a woman) and I would like to know that if the police force anyone to submit to a vaginal exam under ANY circumstances they would have to read her rights to her first.

    Reply
  3. Robert

    Dr. Speckhard:

    I am certain you realize the fact, that the Court did not need to first deem Ms. Rodriquez, as mentally unfit, insane or incompetent stand trial, to rule on the police’s alleged Fourth Amendment violation – search & seizure. And no, I did not read your book, “Fetal Abduction.” However, I did take a brief moment to glance through a chapters and lines on Amazon, to obtain a more general overview of the case.

    All the prosecutor and police needed to do was make the allegation that she suffered from a mental illness and/or had already known Ms. Rodriguez was treated or had been treated for a mental disorder, prior to the murder. If so, then this would have been more than sufficient enough evidence, in support, to allow the Court to rule in favor of the police.

    I will concur, that it is disturbing that any woman could be subjected to a vaginal exam – against her consent and will, even if she refuses to allow an exam to be conducted. I haven’t been inclined to research the legal standard level for such a personal invasion of personal female privacy, but I would presume, it could be the same legal standard for someone that the police can plainly see is not in their right state-of-mind and/or under the influence of some sort of drug or intoxicant, and they are combative, when the police try to question them or detain them for questioning. The police would have probably cause to take a blood sample from that individual, against their consent or will.

    This made sound really bizarre and somewhat rhetorical, in concept and philosophy, but could it be that some unknown panel of medical and psychiatric professionals – put together by District Attorneys, Judges and other defenses attorneys, sat down to discuss in detail, to determine that women, in general, fall under a totally different legal standard than men, because some junk medical science concluded, that the rapid hormonal fluctuations and notable psychology affects it has on women, puts them into a legal category of being disabled, under the Parens Patriae Doctrine? Look at this from a Occam’s razor point of view – if you will.

    In closing, I’ll presume your silence on the Riley case, means you concur with my analysis and assessment.? He had no legal standing to claim the police violated his Fourth Amendment rights, because the marijuana he was growing in his backyard was out in the open for the police drone to identify.

    Reply
  4. Anne Speckhard, Ph.D. Post author

    Dear Robert/Mo thanks again for your reply. To make the facts clear, she was seen as fit to stand trial and not given an insanity defense BUT it was ruled in the public safety that she was submitted to two invasive vaginal exams before being told she was under arrest and had her rights read to her. She complied meekly with the police in agreeing to go to the hospital and she did not fight with them. She did injure herself after the first exam but she attacked no one else. It’s very clearly documented in police and hospital records that she refused the second exam, and she did not request the first one — both were the idea of the coroner– and police escorted her to both. The judge as I understand it ruled in the interest of public safetyin failing to read her rights to her –not because she had any mental defect but because he thought by acting rashly and running roughshod over her rights (in my opinion) they potentially could have saved another woman’s life.

    As a woman living in this society I find it highly disturbing that the judge wouldn’t have held the police to the standard of having to read her rights to her before such a highly invasive exam takes place. (For that matter something similar could also happen to a man.) She could have been the wrong suspect, she could have been innocent, etc. and as the case turned out she was an abuse and rape survivor so being submitted against her will to such an invasion of her bodily privacy caused her (in my opinion again) to confess to the police in an attempt to ward off the second exam–a highly intrusive exam she experienced as vaginal assault. That is disturbing and for me seems a miscarriage of justice.

    As for your opinions, I don’t mind disagreeing. And I don’t think you will find many takers for your women as falling into a category of being disabled due to their hormones–ha the same could be argued for men and the effect of thinking with… I think I’ll leave it at that since it’s only an exercise in imagining a fantasy panel and in my mind completely ridiculous.

    As for Riley I would argue that home can have many meanings including one’s property surrounding the home. Perhaps home has a clearly defined meaning–as I told you I am not a lawyer. He argued that they saw over his privacy fence and by doing so violated his “home”.

    Reply
    1. Robert

      Dr, SpeckHard:

      Deeming her fit to stand trial and then ruling in favor of the police/prosecution that her 4th Amendment rights were not violated – in the name of ensuring public safety, when the victim has already been pronounced deceased, changes the whole argument. I am not a lawyer, but I am certain I could have won this case, just based on what you shared with me. I presume she had a public defender – whose legal budgets are controlled by the District Attys Office, that simply refused to put up a good legal fight for this woman. I wouldn’t be surprised or discount the fact that race played another covert role, in ensuring that another under-represented minority, would answer for their crimes, regardless of whether or not, she may or may not have been of sound mind and body at the time of the commission of the crime.

      Question? If you were in a position to raise funding for this woman for a re-trial – who obviously murdered the other woman, would you want to see her (1) acquitted on a legal procedural technicality and released from custody, (2) have her sentence reduced or (3) have her committed to a state mental institution to remain in state custody, with the possibility she could eventually be released out into the public again?

      As for the Riley case, if the police initially were at this guy’s property and peered over his fence to potentially obtain an on-the-ground visual confirmation that Riley was growing marijuana, but just couldn’t be sure, because their vantage point was obstructed or it required the officers to trespass without a warrant, then I will agree with you that any subsequent request for a warrant from a judge that may have included testimony to a judge that officers did, in fact, peer over his fence to get a partial look-see, but needed the drone to fly-over to obtain positive confirmation, then this information could have and should have been used in court as, evidence in support of a motion to quash the warrant request, but on an initial presume 4th Amendment violation. Its called, “Fruit from the Forbidden Tree!”

      On a side note, I actually considered pursing a LLM and PhD in Law from Georgetown, but I began to wonder and consider, what else would I be learning ‘new’, that I couldn’t learn on my own from my own readings of the same textbooks and current access to LexisNexus and my own law library.? I also lecture and guest speak on a regular basis to undergraduate students at a private University in California. So I might choose another area of study – like biomedical engineering or theoretical physics – since my passion is advanced technology R&D.

      Reply

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