1
00:00:00,760 --> 00:00:04,080
Speaker 1: Broadcasting live to New York Bloomberg e living three oh

2
00:00:04,200 --> 00:00:08,840
Speaker 1: to Washington, d C. Bloomberg to Boston, Bloomberg twelve hundred,

3
00:00:08,880 --> 00:00:12,280
Speaker 1: to San Francisco, Bloomberg nine sixteen to the country Sirius

4
00:00:12,440 --> 00:00:15,600
Speaker 1: XM Gental one nineteen and around the bloat the Bloomberg

5
00:00:15,680 --> 00:00:19,319
Speaker 1: Radio Plus app and Bloomberg dot Com. This is Bloomberg Law.

6
00:00:19,680 --> 00:00:22,520
Speaker 1: I'm June Grosso with New York. Coming up on Bloomberg Law.

7
00:00:22,640 --> 00:00:26,040
Speaker 1: Parents are suing while police and Georgia are defending their

8
00:00:26,079 --> 00:00:29,560
Speaker 1: actions in putting a high school in Sylvester on lockdown

9
00:00:29,600 --> 00:00:33,760
Speaker 1: for hours and padding down each of the students. And

10
00:00:33,800 --> 00:00:36,360
Speaker 1: do police need a search warrant to collect a DNA

11
00:00:36,479 --> 00:00:38,680
Speaker 1: sample from the door handle of a car that's left

12
00:00:38,680 --> 00:00:41,320
Speaker 1: in a parking lot. That's coming up on Bloomberg Law,

13
00:00:41,400 --> 00:00:44,120
Speaker 1: But first check on the markets with Bloomberg's Charlie Pellett.

14
00:00:44,200 --> 00:00:46,120
Speaker 1: All right, thank you very much, Greg's store. Thank you,

15
00:00:46,200 --> 00:00:48,519
Speaker 1: June Grosso. We have got the DOW, the SMP and

16
00:00:48,600 --> 00:00:52,080
Speaker 1: Nez Dack all trading law right now. The SMP five

17
00:00:52,159 --> 00:00:55,600
Speaker 1: hunted index down four to twenty three eighty four, a

18
00:00:55,680 --> 00:00:59,120
Speaker 1: drop of two tenths of one percent down industrials down

19
00:00:59,120 --> 00:01:01,120
Speaker 1: thirty six, also of a drop of two tenths of

20
00:01:01,200 --> 00:01:04,600
Speaker 1: one percent. Nez Dank has been swinging between gains and

21
00:01:04,640 --> 00:01:07,720
Speaker 1: losses little change, but it is now lower by less

22
00:01:07,760 --> 00:01:11,039
Speaker 1: than half a point. The US economy expanded at the

23
00:01:11,200 --> 00:01:14,480
Speaker 1: slowest pace in three years, as weak auto sales and

24
00:01:14,560 --> 00:01:18,760
Speaker 1: lower home heating bills drank down consumer spending, offsetting a

25
00:01:18,760 --> 00:01:22,120
Speaker 1: pickup and investment led by housing and oil drilling. The

26
00:01:22,160 --> 00:01:25,600
Speaker 1: Commerce Department says gross domestic product, the value of all

27
00:01:25,640 --> 00:01:28,679
Speaker 1: goods and services produced, rose at a seven tenths of

28
00:01:28,720 --> 00:01:32,360
Speaker 1: a percent annualized rate after advancing two point one percent

29
00:01:32,480 --> 00:01:35,880
Speaker 1: in the prior quarter. Median forecast of economist survey by

30
00:01:35,880 --> 00:01:40,240
Speaker 1: Bloomberg called for a one percent game. Black Rocks Larry

31
00:01:40,280 --> 00:01:44,199
Speaker 1: Fink is warning the Trump administration's tax proposals are likely

32
00:01:44,240 --> 00:01:48,400
Speaker 1: to prompt higher deficits because they probably won't spur enough

33
00:01:48,440 --> 00:01:53,240
Speaker 1: economic growth and revenue. Starbucks shares they are moving lower

34
00:01:53,280 --> 00:01:56,320
Speaker 1: today after quarterly sales missed analysts estimates. And with more

35
00:01:56,320 --> 00:02:00,760
Speaker 1: on the story, here's Bloomberg's Patrice Sakara Charlie store sales

36
00:02:00,800 --> 00:02:03,280
Speaker 1: a key benchmark for his three percent last quarter, but

37
00:02:03,360 --> 00:02:06,960
Speaker 1: analyst pulled by Consensus Metrics projected a three point six

38
00:02:07,000 --> 00:02:09,760
Speaker 1: percent game. The results leave it up to chief executive

39
00:02:09,800 --> 00:02:13,320
Speaker 1: officer Kevin Johnson to reassure investors he has a plan

40
00:02:13,440 --> 00:02:17,120
Speaker 1: for reigniting sales, especially as cheaper rivals target his company's

41
00:02:17,160 --> 00:02:20,320
Speaker 1: market share. McDonald's has been advertising one and two dollar

42
00:02:20,440 --> 00:02:23,600
Speaker 1: drink specials this year, while the Duncan Donut's loyalty program

43
00:02:23,639 --> 00:02:27,720
Speaker 1: is drawing more. Conference Patrece Skora, Bloomberg Radio and Starbucks

44
00:02:27,760 --> 00:02:30,200
Speaker 1: is down now by two and a half percent again

45
00:02:30,280 --> 00:02:34,000
Speaker 1: recapping SMP down three points, a drop of two tenths

46
00:02:34,000 --> 00:02:37,680
Speaker 1: of one percent, Gold off a dollar ninety one tenth

47
00:02:37,680 --> 00:02:40,679
Speaker 1: of one percent, Crude Oil West Texas Intermediate up four

48
00:02:40,760 --> 00:02:43,680
Speaker 1: tenths of one percent. I'm Charlie Pellett and that Greg

49
00:02:43,720 --> 00:02:47,320
Speaker 1: store in June Grosso is a Bloomberg business flash. Thank you, Charlie.

50
00:02:47,760 --> 00:02:50,520
Speaker 1: Imagine sending your children to high school and learning that

51
00:02:50,600 --> 00:02:53,680
Speaker 1: police had put the school on lockdown for several hours

52
00:02:53,840 --> 00:02:56,440
Speaker 1: while they came in with drug dogs and patted down

53
00:02:56,520 --> 00:03:00,760
Speaker 1: each of the nine students, some aggressively any no illegal

54
00:03:00,760 --> 00:03:04,560
Speaker 1: substances parents have. Students in Fork County High School in

55
00:03:04,600 --> 00:03:08,080
Speaker 1: Georgia were furious and some are suing, but the police

56
00:03:08,120 --> 00:03:11,360
Speaker 1: are defending their actions. Add this fact to the equation.

57
00:03:11,720 --> 00:03:14,040
Speaker 1: It's the second time in a month that a search

58
00:03:14,160 --> 00:03:16,880
Speaker 1: was conducted at the school, although the first time there

59
00:03:16,880 --> 00:03:20,440
Speaker 1: were no path downs. Joining us our former federal prosecutor

60
00:03:20,480 --> 00:03:24,240
Speaker 1: George Newhouse, a partner at Denton's, and Laura Donahue, professor

61
00:03:24,240 --> 00:03:28,440
Speaker 1: at Georgetown Law School, George Sheriff Jeff Hobby, said the

62
00:03:28,520 --> 00:03:32,600
Speaker 1: invasive searches were necessary after arrest made in a series

63
00:03:32,600 --> 00:03:36,040
Speaker 1: of local burglaries revealed what he called drug activity at

64
00:03:36,040 --> 00:03:38,600
Speaker 1: the school, and that as long as a school administrator

65
00:03:38,720 --> 00:03:41,680
Speaker 1: was present, the search of the students was legal. What's

66
00:03:41,680 --> 00:03:46,200
Speaker 1: your response to that? That is not clear at all.

67
00:03:46,240 --> 00:03:50,760
Speaker 1: I would actually disagree with that assertion. Certainly, they had

68
00:03:50,880 --> 00:03:55,600
Speaker 1: legitimate need to do this kind of investigation, but as

69
00:03:55,640 --> 00:03:58,160
Speaker 1: far as I can see, particularly a pat down search. Now,

70
00:03:58,160 --> 00:04:01,360
Speaker 1: remember a pat down search is not a full blown

71
00:04:01,400 --> 00:04:05,920
Speaker 1: Fourth Amendment search. So it's and it's justified under the Constitution,

72
00:04:06,200 --> 00:04:10,080
Speaker 1: but it requires at least a reasonable suspicion that a

73
00:04:10,080 --> 00:04:13,920
Speaker 1: particular individual or suspect has contraband or a weapon or

74
00:04:14,000 --> 00:04:16,839
Speaker 1: some something like this. It appears that this search is

75
00:04:17,080 --> 00:04:20,240
Speaker 1: way overbroad. It's not done on consent, and frankly, it

76
00:04:20,360 --> 00:04:24,839
Speaker 1: probably resulted in a Fourth Amendment violation of the various

77
00:04:24,839 --> 00:04:29,760
Speaker 1: students who were subjected to it. Laura, at risk of

78
00:04:29,760 --> 00:04:32,840
Speaker 1: of acting like I'm on the side of the police here. Uh.

79
00:04:33,160 --> 00:04:37,640
Speaker 1: Isn't it established in the law though, that that students

80
00:04:37,680 --> 00:04:43,480
Speaker 1: have lesser lower level of constitutional rights than somebody who's

81
00:04:43,520 --> 00:04:47,200
Speaker 1: just walking out on the street. Uh. So, students do

82
00:04:47,360 --> 00:04:49,440
Speaker 1: have a lesser constitutional rate, but they do have a

83
00:04:49,480 --> 00:04:53,320
Speaker 1: constitutional right. The Fourth Amendment protections apply in public school systems.

84
00:04:53,360 --> 00:04:56,279
Speaker 1: So this has been long established. So the due process

85
00:04:56,320 --> 00:04:58,760
Speaker 1: clause incorporates the build rights against the states, and then

86
00:04:59,000 --> 00:05:02,160
Speaker 1: for Ohio, you know, the Fourth Amendment now applies h

87
00:05:02,279 --> 00:05:04,800
Speaker 1: to the to the states and students particularly. There's a

88
00:05:04,800 --> 00:05:07,920
Speaker 1: case called Tinker for Sa Moine Independent Community School District

89
00:05:07,920 --> 00:05:10,880
Speaker 1: in nine nine that said, you know, no, as students

90
00:05:10,880 --> 00:05:13,320
Speaker 1: don't shed their constitutional rights at the school house gate.

91
00:05:13,760 --> 00:05:17,200
Speaker 1: So the standard though, of reasonableness here is different for

92
00:05:17,279 --> 00:05:20,599
Speaker 1: school administrator than for the police. So for a school

93
00:05:20,600 --> 00:05:22,839
Speaker 1: administrator to do a pat down, it has to be

94
00:05:22,920 --> 00:05:25,839
Speaker 1: reasonable in light of whether it's justified at the inception

95
00:05:26,240 --> 00:05:30,040
Speaker 1: and reasonable in scope and under those criteria. It might

96
00:05:30,080 --> 00:05:32,400
Speaker 1: be reasonable in scope to do a pat down, but

97
00:05:32,480 --> 00:05:34,960
Speaker 1: that's different from the police. For the police to do it,

98
00:05:35,040 --> 00:05:37,400
Speaker 1: so it matters who's doing the search. For the police

99
00:05:37,400 --> 00:05:39,120
Speaker 1: to do it, they have to have probable cause in

100
00:05:39,240 --> 00:05:41,480
Speaker 1: order to do a search, which is which is a

101
00:05:41,520 --> 00:05:46,359
Speaker 1: higher standard. George, When you say pat down, I'm wondering,

102
00:05:46,360 --> 00:05:48,520
Speaker 1: you know, I'm thinking of a pat down like you've

103
00:05:48,560 --> 00:05:52,200
Speaker 1: seen in a TV show. In this case, they admitted

104
00:05:52,200 --> 00:05:56,560
Speaker 1: the police that some of the packdowns were especially aggressive,

105
00:05:56,800 --> 00:06:00,479
Speaker 1: and some reports are that the searches ex tended to

106
00:06:00,640 --> 00:06:04,080
Speaker 1: the girl's bras and the inside of the boys and

107
00:06:04,360 --> 00:06:09,920
Speaker 1: girls pants and thighs. Is that a pat down? Well,

108
00:06:09,920 --> 00:06:12,719
Speaker 1: it's a great question, June. And remember the pat down

109
00:06:13,279 --> 00:06:17,200
Speaker 1: search or stop and frisk goes back to a Supreme

110
00:06:17,240 --> 00:06:20,039
Speaker 1: Court case called Carry versus Ohio, which is at least

111
00:06:20,040 --> 00:06:22,560
Speaker 1: thirty or forty years old. And in that case, it

112
00:06:22,640 --> 00:06:26,000
Speaker 1: was a very limited search. It was literally a a

113
00:06:26,279 --> 00:06:30,719
Speaker 1: officers stopping a suspect he had reasonable suspicion to be

114
00:06:30,800 --> 00:06:35,080
Speaker 1: concerned for his safety and the intrusion of the search

115
00:06:35,240 --> 00:06:39,120
Speaker 1: was extremely limited. So this these aggressive searches, and certainly,

116
00:06:39,920 --> 00:06:42,000
Speaker 1: as you've described it, I would believe that would be

117
00:06:42,040 --> 00:06:46,120
Speaker 1: a full blown Fourth Amendment search that would require probable

118
00:06:46,160 --> 00:06:50,479
Speaker 1: cause or some exception to the warrant requirement that would

119
00:06:50,520 --> 00:06:55,200
Speaker 1: otherwise definding on the police. And I completely agree the

120
00:06:55,240 --> 00:06:59,080
Speaker 1: students have Fourth Amendment rights like anyone else. And there

121
00:06:59,080 --> 00:07:03,000
Speaker 1: may be in some circumstances administrative search is done by

122
00:07:03,080 --> 00:07:06,240
Speaker 1: school officials, which are not really done necessarily for law

123
00:07:06,320 --> 00:07:09,920
Speaker 1: enforceable purposes. Could be said duct to a more lenient standard.

124
00:07:10,000 --> 00:07:13,360
Speaker 1: But um, the kind of search that you're describing intrusion

125
00:07:13,440 --> 00:07:17,720
Speaker 1: would clearly trigger Fourth Amend and interest, Laura, I think

126
00:07:17,760 --> 00:07:22,160
Speaker 1: this may be factually disputed. But if school administrators were

127
00:07:22,200 --> 00:07:26,000
Speaker 1: there watching the police, does that help police at all

128
00:07:26,040 --> 00:07:29,720
Speaker 1: in terms of their their justification? No? No, Actually, the

129
00:07:29,760 --> 00:07:32,360
Speaker 1: courts have come out instaid just standing there is not

130
00:07:32,480 --> 00:07:36,760
Speaker 1: sufficient to trigger, for instance, increased Fourth Amendment protection. So similarly,

131
00:07:36,760 --> 00:07:39,400
Speaker 1: it would not be sufficient for a reduced standard of

132
00:07:39,440 --> 00:07:42,760
Speaker 1: just reasonable suspicion to apply to the search itself. Um,

133
00:07:42,800 --> 00:07:45,320
Speaker 1: and as Georgia is saying, the intrusiveness of the search

134
00:07:45,880 --> 00:07:48,200
Speaker 1: actually is the key point. So there there having cases

135
00:07:48,240 --> 00:07:52,680
Speaker 1: where schools have for instance looked inside um, the band

136
00:07:52,800 --> 00:07:55,280
Speaker 1: you know going around in the pants or in girls

137
00:07:55,280 --> 00:07:58,560
Speaker 1: bras and this has been ruled to be unconstitutional for

138
00:07:58,600 --> 00:08:00,960
Speaker 1: them to do that. The other point that's worth bringing

139
00:08:01,040 --> 00:08:04,080
Speaker 1: up is it's also not sufficient for the reasonableness prong

140
00:08:04,200 --> 00:08:07,160
Speaker 1: even for school administrators to say that somebody hangs out

141
00:08:07,200 --> 00:08:11,640
Speaker 1: with somebody else and therefore they've waived any protections against search.

142
00:08:11,960 --> 00:08:15,000
Speaker 1: So that's actually an insufficient reason to say it's a

143
00:08:15,080 --> 00:08:16,880
Speaker 1: certainly thing that they go to the same school is

144
00:08:16,880 --> 00:08:19,000
Speaker 1: even one step removed from that. So I would really

145
00:08:19,080 --> 00:08:21,640
Speaker 1: question the constitutionality of these actions. And I just want

146
00:08:21,680 --> 00:08:24,120
Speaker 1: to add that the school administrator in this case said

147
00:08:24,200 --> 00:08:27,440
Speaker 1: he did not give any consent to the police to

148
00:08:27,520 --> 00:08:30,720
Speaker 1: do any pat downs. Coming up on Bloomberg law, what

149
00:08:30,840 --> 00:08:34,000
Speaker 1: kind of a search by police constitutes a trespass and

150
00:08:34,040 --> 00:08:37,440
Speaker 1: a Fourth Amendment search? How about swabbing the exterior door

151
00:08:37,440 --> 00:08:40,240
Speaker 1: handle of a car parked at a mall to collect DNA?

152
00:08:40,920 --> 00:08:43,400
Speaker 1: But now the latest world of national news from Nathan

153
00:08:43,440 --> 00:08:46,599
Speaker 1: Hagar in the Bloomberg News Room in Washington, d C.

154
00:08:46,880 --> 00:08:50,760
Speaker 1: Nathan June. Thanks. President Trump has just arrived in Atlanta,

155
00:08:50,840 --> 00:08:53,640
Speaker 1: where he will become the first sitting president since Ronald

156
00:08:53,640 --> 00:08:58,200
Speaker 1: Reagan to address the National Rifle Association's annual convention. President

157
00:08:58,240 --> 00:09:01,440
Speaker 1: will also attend a private fundraiser for a Republican Karen Handle.

158
00:09:01,760 --> 00:09:04,559
Speaker 1: She's headed into a runoff special election for the congressional

159
00:09:04,640 --> 00:09:07,320
Speaker 1: seat that was left empty by Health and Human Services

160
00:09:07,360 --> 00:09:10,559
Speaker 1: Secretary Tom Price. Now before he arrived in Atlanta, the

161
00:09:10,600 --> 00:09:13,920
Speaker 1: President signed another executive order. This one aimed at expanding

162
00:09:13,920 --> 00:09:16,640
Speaker 1: oil and gas drilling in the Arctic and other federal

163
00:09:16,679 --> 00:09:20,320
Speaker 1: waters were unleashing American energy and clearing the way for

164
00:09:20,520 --> 00:09:24,280
Speaker 1: thousands and thousands of high paying American energy jobs. This

165
00:09:24,440 --> 00:09:27,160
Speaker 1: order reverses an effort by then President Obama to make

166
00:09:27,200 --> 00:09:31,440
Speaker 1: most federal waters off limits to drilling indefinitely. California Attorney

167
00:09:31,480 --> 00:09:34,640
Speaker 1: General Javier Bassara released a statement saying his state will

168
00:09:34,800 --> 00:09:39,240
Speaker 1: vigorously oppose offshore drilling shut down averted. First, the House,

169
00:09:39,280 --> 00:09:41,840
Speaker 1: now the Senate have passed a one week spending bill

170
00:09:41,920 --> 00:09:44,600
Speaker 1: to keep the government open. Never too late to do

171
00:09:44,640 --> 00:09:46,920
Speaker 1: the right thing, if my mom used to say, and

172
00:09:47,000 --> 00:09:50,360
Speaker 1: the right thing to do today is to pass this rule.

173
00:09:50,800 --> 00:09:54,760
Speaker 1: Pass this bill, give our friends, the appropriators the time

174
00:09:54,800 --> 00:09:58,199
Speaker 1: that they need to negotiate a final bill. Oklahoma Republican

175
00:09:58,240 --> 00:10:01,480
Speaker 1: Congressman Tom Cole on the House floor those appropriators are

176
00:10:01,480 --> 00:10:03,719
Speaker 1: expected to work through the weekend to iron out their

177
00:10:03,720 --> 00:10:06,400
Speaker 1: differences on a trillion plus dollar bill for the rest

178
00:10:06,400 --> 00:10:09,640
Speaker 1: of this fiscal year. Global News twenty four hours a day,

179
00:10:09,640 --> 00:10:12,240
Speaker 1: powered by more than twenty six hundred journalists, analysts and

180
00:10:12,320 --> 00:10:17,360
Speaker 1: more than one countries. This is Bloomberg the Mobile Business

181
00:10:17,400 --> 00:10:20,440
Speaker 1: News twenty four hours a day at Bloomberg dot com.

182
00:10:20,679 --> 00:10:24,040
Speaker 1: The radio blows Mobile Lab and on your radio's a

183
00:10:24,080 --> 00:10:28,400
Speaker 1: Bloomberg Business Lack. Bloom Bloomberg World Handquaters. I'm Charlie Pellock

184
00:10:28,480 --> 00:10:32,520
Speaker 1: Nezdak trading close to a record. The downin SMP lower

185
00:10:32,600 --> 00:10:36,679
Speaker 1: little change right now. Treasuries are dropping, oil closing in

186
00:10:36,840 --> 00:10:40,120
Speaker 1: on fifty dollars of barrel even after the US economy

187
00:10:40,200 --> 00:10:43,760
Speaker 1: report of its slowest pace of expansion in three years.

188
00:10:44,120 --> 00:10:47,559
Speaker 1: The tenure yield two point three percent, Gold up two dollars,

189
00:10:47,559 --> 00:10:50,320
Speaker 1: the ounce to twelve sixty seven up two tenths of

190
00:10:50,360 --> 00:10:53,640
Speaker 1: one percent. West Texas Intermedia crewed up thirty cents of

191
00:10:53,720 --> 00:10:57,719
Speaker 1: arrel seven on w t I up six tenths of

192
00:10:57,800 --> 00:11:02,440
Speaker 1: one percent. The SMP five hundred index down four four

193
00:11:02,520 --> 00:11:06,000
Speaker 1: down two tenths of one percent down. Industrials down forty

194
00:11:06,160 --> 00:11:09,079
Speaker 1: also a drop of two tenths of one percent. Nastack,

195
00:11:09,240 --> 00:11:12,400
Speaker 1: Laura Little changed down now by half a point. I'm

196
00:11:12,480 --> 00:11:15,199
Speaker 1: Charlie Pelotan That gregg store in June Grosso is a

197
00:11:15,240 --> 00:11:19,160
Speaker 1: Bloomberg business flash. Thank you so much, Charlie. When does

198
00:11:19,200 --> 00:11:22,600
Speaker 1: police action count as a Fourth Amendment search? The Supreme

199
00:11:22,640 --> 00:11:24,720
Speaker 1: Court has said the government commits a search when it

200
00:11:24,800 --> 00:11:28,920
Speaker 1: trespasses on a person's houses, papers, and effects, among other things.

201
00:11:29,240 --> 00:11:32,040
Speaker 1: But here's the problem. What's the test for a trespass?

202
00:11:32,360 --> 00:11:35,280
Speaker 1: In a new decision of Louisiana, federal judge found that

203
00:11:35,320 --> 00:11:39,000
Speaker 1: the police swabbing the exterior door of a murder suspects

204
00:11:39,000 --> 00:11:42,200
Speaker 1: car parked in a mall for DNA was a Fourth

205
00:11:42,240 --> 00:11:45,800
Speaker 1: Amendment search because it trespassed on the car. We've been

206
00:11:45,800 --> 00:11:49,600
Speaker 1: talking to former federal prosecutor George Newhouse, a partner at Denton's,

207
00:11:49,880 --> 00:11:53,680
Speaker 1: and Laura Donahue, a professor at Georgetown Law School. George,

208
00:11:53,720 --> 00:11:57,600
Speaker 1: this investigation is the subject of the Discovery Channel TV

209
00:11:57,720 --> 00:12:04,280
Speaker 1: show Killing Fields. Tell us what happened? Well, the individual Schmidt,

210
00:12:04,400 --> 00:12:08,280
Speaker 1: was suspected of having committed a murder and the police

211
00:12:08,320 --> 00:12:11,720
Speaker 1: decided that they needed his d N a UH to

212
00:12:11,960 --> 00:12:15,480
Speaker 1: obviously compare against samples collected in the evidence. So they

213
00:12:15,520 --> 00:12:18,840
Speaker 1: went to his car and on the external side of

214
00:12:18,880 --> 00:12:22,960
Speaker 1: the car, the door handle, they swabbed UH and obtained

215
00:12:23,080 --> 00:12:26,640
Speaker 1: his DNA. So they didn't actually go inside the car, UH,

216
00:12:26,760 --> 00:12:30,440
Speaker 1: they simply swabbed the X the handle and obtained DNA,

217
00:12:30,920 --> 00:12:34,320
Speaker 1: and he then brought a lawsuit inter this wasn't necessarily

218
00:12:34,360 --> 00:12:37,640
Speaker 1: at this point the result of the criminal prosecution that

219
00:12:38,040 --> 00:12:42,079
Speaker 1: Schmidt sues the police and says, you've violated the Fourth

220
00:12:42,080 --> 00:12:45,480
Speaker 1: Amendment by conducting a search on the external part of

221
00:12:45,480 --> 00:12:48,360
Speaker 1: my car and my DNA is private and you didn't

222
00:12:48,400 --> 00:12:51,760
Speaker 1: have probable cause, which they didn't or warrant to obtain it.

223
00:12:51,840 --> 00:12:54,560
Speaker 1: So that's where the issue was fronted, and the judge

224
00:12:54,600 --> 00:12:59,360
Speaker 1: basically actually ironically dismissed the lawsuit, but after finding that

225
00:12:59,640 --> 00:13:01,600
Speaker 1: there had been in fact of search. So it's an

226
00:13:01,600 --> 00:13:06,520
Speaker 1: interesting issue of continuing march of technology because you know,

227
00:13:06,559 --> 00:13:08,800
Speaker 1: twenty five years ago this would never have even been

228
00:13:08,840 --> 00:13:12,960
Speaker 1: an issue. Laura, I think it is the case that,

229
00:13:13,080 --> 00:13:15,800
Speaker 1: in correct me if I'm wrong, that if somebody you know,

230
00:13:15,840 --> 00:13:17,640
Speaker 1: took a sip out of a plastic cup and threw

231
00:13:17,679 --> 00:13:20,280
Speaker 1: it in the trash, there'd be no problem with with

232
00:13:20,480 --> 00:13:25,160
Speaker 1: police getting the DNA from that cup. How did the

233
00:13:25,240 --> 00:13:28,640
Speaker 1: judge here describe why a car in a parking lot

234
00:13:28,720 --> 00:13:31,560
Speaker 1: might be different from that cup in a trash can. Yeah.

235
00:13:31,640 --> 00:13:33,839
Speaker 1: So the case that you're referring to is a case

236
00:13:33,840 --> 00:13:36,840
Speaker 1: called Cerralo where somebody had put garbage out on the

237
00:13:36,880 --> 00:13:39,120
Speaker 1: curb site and the court, in a in a fairly

238
00:13:39,400 --> 00:13:44,000
Speaker 1: closely uh closely divided court decided that that was not

239
00:13:44,080 --> 00:13:46,640
Speaker 1: a search. But in this case, there was another case

240
00:13:46,679 --> 00:13:49,679
Speaker 1: that's interviewing in. There's a case called United States First Jones.

241
00:13:50,120 --> 00:13:52,520
Speaker 1: And in that case, there was a suspected drug dealer

242
00:13:52,559 --> 00:13:56,840
Speaker 1: in Washington, d c. And the police went to get

243
00:13:56,840 --> 00:14:00,760
Speaker 1: a warrant to put a bug on the perspected drug

244
00:14:00,840 --> 00:14:04,400
Speaker 1: dealer's wife's car, for they had a ten day period

245
00:14:04,440 --> 00:14:06,640
Speaker 1: to put that device on the car. And outside of

246
00:14:06,640 --> 00:14:09,520
Speaker 1: that ten day period, they put the device on the car,

247
00:14:09,840 --> 00:14:12,319
Speaker 1: and then they followed that car around for twenty eight days.

248
00:14:12,679 --> 00:14:15,200
Speaker 1: And when that came to the Supreme Court, Justice Scalia

249
00:14:15,360 --> 00:14:17,840
Speaker 1: offered the opinion of the court which said that it

250
00:14:17,880 --> 00:14:20,960
Speaker 1: was a trespass because attaching a deeper to the outside

251
00:14:20,960 --> 00:14:23,880
Speaker 1: of the car was a trespass on the car itself.

252
00:14:23,920 --> 00:14:26,840
Speaker 1: And he got a majority. So five justices went with

253
00:14:27,000 --> 00:14:30,080
Speaker 1: him on that case that that actually this was a trustpass.

254
00:14:30,160 --> 00:14:32,720
Speaker 1: So what's interesting if there's there's another case, kind of

255
00:14:32,760 --> 00:14:34,440
Speaker 1: a companion case that that didn't come up in this

256
00:14:34,560 --> 00:14:37,920
Speaker 1: contexts that Maryland versus King, where you have somebody who

257
00:14:38,640 --> 00:14:41,800
Speaker 1: had had been a suspected of assault and he was arrested,

258
00:14:41,800 --> 00:14:43,560
Speaker 1: and when he was arrested, they did a slab of

259
00:14:43,640 --> 00:14:46,600
Speaker 1: his cheek and got his DNA and when they ran

260
00:14:46,680 --> 00:14:49,920
Speaker 1: at DNA, they found that it matched the evidence in

261
00:14:50,000 --> 00:14:53,120
Speaker 1: a rape case and they used that evidence to convict him.

262
00:14:53,360 --> 00:14:55,480
Speaker 1: So when the question came to the court, can you

263
00:14:55,560 --> 00:14:59,520
Speaker 1: take DNA evidence and use it for this other crime?

264
00:14:59,560 --> 00:15:03,560
Speaker 1: You know, is as a search again? Hight Court five four.

265
00:15:03,720 --> 00:15:06,880
Speaker 1: Justice Kennedy authored the opinion. He said, well, there's a

266
00:15:06,920 --> 00:15:10,200
Speaker 1: legitimate state interest. H It's not invasive enough when you

267
00:15:10,240 --> 00:15:14,320
Speaker 1: take DNA from inside somebody's mouth. It was collected during

268
00:15:14,320 --> 00:15:16,880
Speaker 1: the booking and arrest. Therefore it could be used. But

269
00:15:17,000 --> 00:15:19,920
Speaker 1: Justice Scalia authored the defense there and he said, no,

270
00:15:20,040 --> 00:15:22,640
Speaker 1: the Fourth Amendment protects the search of a person for

271
00:15:22,680 --> 00:15:25,920
Speaker 1: evidence of a crime without probable cause, and that this

272
00:15:26,000 --> 00:15:29,560
Speaker 1: was operating as a general warrant. So the question here

273
00:15:29,640 --> 00:15:32,880
Speaker 1: is between this US versus Jones case, where touching the

274
00:15:32,880 --> 00:15:35,960
Speaker 1: outside of a car as a trespass and this DNA case,

275
00:15:36,000 --> 00:15:38,160
Speaker 1: where it was actually the desfense that said this is

276
00:15:38,160 --> 00:15:42,520
Speaker 1: a search to actually take somebody's DNA. So, George, it

277
00:15:42,680 --> 00:15:46,040
Speaker 1: seems as if there's room to disagree with the way

278
00:15:46,240 --> 00:15:50,280
Speaker 1: the judge decided this case. I mean, do you think

279
00:15:50,320 --> 00:15:54,040
Speaker 1: that there's room to disagree? Not only is there room,

280
00:15:54,080 --> 00:15:57,240
Speaker 1: but I do disagree with the Federal District judge's opinion,

281
00:15:57,720 --> 00:16:00,200
Speaker 1: and I do not believe that's the Supreme Court will

282
00:16:00,200 --> 00:16:03,400
Speaker 1: follow this this line of thinking. Um. As Laura correctly

283
00:16:03,440 --> 00:16:07,200
Speaker 1: points out. The real problem, however, is this current standard

284
00:16:07,440 --> 00:16:11,520
Speaker 1: of determining whether there's a legitimate fourth amend interest by

285
00:16:11,600 --> 00:16:14,760
Speaker 1: coming up with this property that's trust task to chattels,

286
00:16:14,840 --> 00:16:18,240
Speaker 1: which is just an archaic term of course for property. UM.

287
00:16:18,320 --> 00:16:21,800
Speaker 1: And that was in fact the rationale and Jones. But

288
00:16:21,880 --> 00:16:25,400
Speaker 1: in this case, I think the the answer is going

289
00:16:25,440 --> 00:16:27,720
Speaker 1: to be if you leave something in the public, whether

290
00:16:27,760 --> 00:16:30,480
Speaker 1: it's trash put at the side of the curb or

291
00:16:30,560 --> 00:16:34,120
Speaker 1: the external the exterior of your car, I don't think

292
00:16:34,120 --> 00:16:37,000
Speaker 1: the Court's going to say that we have a continuing

293
00:16:37,040 --> 00:16:40,720
Speaker 1: Fourth Amendment right of privacy, and I think that legitimate

294
00:16:40,720 --> 00:16:44,760
Speaker 1: police investigations where they are sampling or getting evidence from

295
00:16:44,880 --> 00:16:47,760
Speaker 1: something that you consciously put in the public. Now you

296
00:16:47,800 --> 00:16:51,040
Speaker 1: may not realize that your DNA is out there as well,

297
00:16:51,320 --> 00:16:53,440
Speaker 1: but it is out there. It would be available for

298
00:16:53,520 --> 00:16:56,920
Speaker 1: anyone to, you know, come by and swab the exterior

299
00:16:57,160 --> 00:16:59,280
Speaker 1: handle of your of your of your car door. So

300
00:16:59,320 --> 00:17:01,560
Speaker 1: I think at the end of the day, the Supreme

301
00:17:01,600 --> 00:17:05,520
Speaker 1: Court will probably not follow this this logic. Laura, do

302
00:17:05,560 --> 00:17:07,399
Speaker 1: you agree with that, and if so, how do you

303
00:17:07,440 --> 00:17:09,639
Speaker 1: distinguish it from the Jones case? I mean both of

304
00:17:09,680 --> 00:17:13,280
Speaker 1: their cases where there wasn't any damage to the car.

305
00:17:13,359 --> 00:17:16,240
Speaker 1: In Jones it was just a device put on the car.

306
00:17:16,720 --> 00:17:21,000
Speaker 1: Um If that was the Fourth Amendment action there, why

307
00:17:21,000 --> 00:17:25,520
Speaker 1: wouldn't this be Oh, I do disagree, respectfully, George. I

308
00:17:25,560 --> 00:17:28,199
Speaker 1: disagree with that because in this case, so you have

309
00:17:28,280 --> 00:17:30,400
Speaker 1: somebody stopping the outside of a car and getting very

310
00:17:30,440 --> 00:17:35,160
Speaker 1: personal information. And the Fourth Amendment grants the right uh

311
00:17:35,240 --> 00:17:38,119
Speaker 1: for people to be secure in their persons, houses, papers,

312
00:17:38,119 --> 00:17:40,359
Speaker 1: and effects, and part of that right to be secure

313
00:17:40,359 --> 00:17:43,320
Speaker 1: in your person has control over your DNA. So just

314
00:17:43,520 --> 00:17:46,600
Speaker 1: as the Justice Scalia in the descent in Maryland versus

315
00:17:46,680 --> 00:17:49,240
Speaker 1: King pointed out this was a search to find out

316
00:17:49,280 --> 00:17:52,240
Speaker 1: more about somebody's DNA and to identify people using DNA.

317
00:17:52,600 --> 00:17:54,680
Speaker 1: And you combine that with the trust pass that goes

318
00:17:54,720 --> 00:17:57,239
Speaker 1: on when you attach something to a car, which is

319
00:17:57,280 --> 00:18:00,320
Speaker 1: the court's decision in this case. In addition, the idea

320
00:18:00,320 --> 00:18:03,240
Speaker 1: of public verse private, this is one of many ways

321
00:18:03,280 --> 00:18:06,439
Speaker 1: fourth Moment doctrine is really unsuited to a digital age.

322
00:18:06,640 --> 00:18:08,679
Speaker 1: There's this idea that when you're in your home your private,

323
00:18:08,680 --> 00:18:10,760
Speaker 1: but when you leave your home, it's not a search

324
00:18:10,880 --> 00:18:14,240
Speaker 1: because you're in public. Yet, a shadow majority and Jones

325
00:18:14,240 --> 00:18:17,480
Speaker 1: recognized that following a car for twenty eight days, even

326
00:18:17,520 --> 00:18:20,199
Speaker 1: though that car was on public streets, that there is

327
00:18:20,240 --> 00:18:23,520
Speaker 1: a privacy interest in that. Now the Court has not

328
00:18:23,600 --> 00:18:25,639
Speaker 1: fully moved in that direction. People point at this as

329
00:18:25,680 --> 00:18:27,879
Speaker 1: a shadow majority in Jones, even though it's decided on

330
00:18:28,119 --> 00:18:30,640
Speaker 1: trustpass grounds. But I think the court, if you look

331
00:18:30,640 --> 00:18:33,000
Speaker 1: at that case, in the Florida versus Riley case, which

332
00:18:33,080 --> 00:18:35,040
Speaker 1: is has to do with a search of an individual's

333
00:18:35,040 --> 00:18:37,680
Speaker 1: cell phone, the court is beginning to understand it in

334
00:18:37,720 --> 00:18:40,879
Speaker 1: a digital age, not everything that's done in public can

335
00:18:40,920 --> 00:18:45,359
Speaker 1: be collected twenty four seven, and there's no privacy interest entailed.

336
00:18:45,400 --> 00:18:48,120
Speaker 1: You can learn a tremendous amount about an individual from

337
00:18:48,160 --> 00:18:51,119
Speaker 1: what happens in public there's that kind of constant monitoring

338
00:18:51,400 --> 00:18:53,639
Speaker 1: is problematic. So I actually think the court might go

339
00:18:53,920 --> 00:18:56,600
Speaker 1: a different direction and finally recognize that we can have

340
00:18:56,640 --> 00:18:59,359
Speaker 1: a privacy interest in what we do in public space,

341
00:18:59,680 --> 00:19:01,600
Speaker 1: and in this instance it has to do with the

342
00:19:01,640 --> 00:19:04,040
Speaker 1: sanctity of the person their DNA. It's hard to think

343
00:19:04,080 --> 00:19:07,880
Speaker 1: of anything more fundamental to personal privacy than your genetic material.

344
00:19:08,440 --> 00:19:10,320
Speaker 1: I want to thank you both. It's good to have

345
00:19:10,359 --> 00:19:14,000
Speaker 1: a difference of opinionency both sides. That's Laura Donna Hugh,

346
00:19:14,080 --> 00:19:18,640
Speaker 1: a professor Georgetown Law School, and former federal prosecutor. George Newhouse,

347
00:19:18,880 --> 00:19:21,679
Speaker 1: a partner at Denton's. That's it for this edition of

348
00:19:21,680 --> 00:19:24,640
Speaker 1: Bloomberg Law. We'll be back Monday at one pm Wall

349
00:19:24,680 --> 00:19:28,719
Speaker 1: Street Time. In about fifteen seconds, Corey Johnson coming up

350
00:19:28,720 --> 00:19:34,040
Speaker 1: with Bloomberg Markets. What's happening, Corey. Maybe Corey is is

351
00:19:34,040 --> 00:19:37,000
Speaker 1: not right there, but I will tell you that a

352
00:19:37,040 --> 00:19:39,000
Speaker 1: lot is going to be happening there in San Francisco.

353
00:19:39,119 --> 00:19:43,120
Speaker 1: Corey Johnson and Carol Masser coming up on Bloomberg markets.

354
00:19:43,160 --> 00:19:43,960
Speaker 1: This is Bloomberg