Speaker 1: Broadcasting live to New York Bloomberg e living three oh
Speaker 1: to Washington, d C. Bloomberg to Boston, Bloomberg twelve hundred,
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Speaker 1: I'm June Grosso with New York. Coming up on Bloomberg Law.
Speaker 1: Parents are suing while police and Georgia are defending their
Speaker 1: actions in putting a high school in Sylvester on lockdown
Speaker 1: for hours and padding down each of the students. And
Speaker 1: do police need a search warrant to collect a DNA
Speaker 1: sample from the door handle of a car that's left
Speaker 1: in a parking lot. That's coming up on Bloomberg Law,
Speaker 1: But first check on the markets with Bloomberg's Charlie Pellett.
Speaker 1: All right, thank you very much, Greg's store. Thank you,
Speaker 1: June Grosso. We have got the DOW, the SMP and
Speaker 1: Nez Dack all trading law right now. The SMP five
Speaker 1: hunted index down four to twenty three eighty four, a
Speaker 1: drop of two tenths of one percent down industrials down
Speaker 1: thirty six, also of a drop of two tenths of
Speaker 1: one percent. Nez Dank has been swinging between gains and
Speaker 1: losses little change, but it is now lower by less
Speaker 1: than half a point. The US economy expanded at the
Speaker 1: slowest pace in three years, as weak auto sales and
Speaker 1: lower home heating bills drank down consumer spending, offsetting a
Speaker 1: pickup and investment led by housing and oil drilling. The
Speaker 1: Commerce Department says gross domestic product, the value of all
Speaker 1: goods and services produced, rose at a seven tenths of
Speaker 1: a percent annualized rate after advancing two point one percent
Speaker 1: in the prior quarter. Median forecast of economist survey by
Speaker 1: Bloomberg called for a one percent game. Black Rocks Larry
Speaker 1: Fink is warning the Trump administration's tax proposals are likely
Speaker 1: to prompt higher deficits because they probably won't spur enough
Speaker 1: economic growth and revenue. Starbucks shares they are moving lower
Speaker 1: today after quarterly sales missed analysts estimates. And with more
Speaker 1: on the story, here's Bloomberg's Patrice Sakara Charlie store sales
Speaker 1: a key benchmark for his three percent last quarter, but
Speaker 1: analyst pulled by Consensus Metrics projected a three point six
Speaker 1: percent game. The results leave it up to chief executive
Speaker 1: officer Kevin Johnson to reassure investors he has a plan
Speaker 1: for reigniting sales, especially as cheaper rivals target his company's
Speaker 1: market share. McDonald's has been advertising one and two dollar
Speaker 1: drink specials this year, while the Duncan Donut's loyalty program
Speaker 1: is drawing more. Conference Patrece Skora, Bloomberg Radio and Starbucks
Speaker 1: is down now by two and a half percent again
Speaker 1: recapping SMP down three points, a drop of two tenths
Speaker 1: of one percent, Gold off a dollar ninety one tenth
Speaker 1: of one percent, Crude Oil West Texas Intermediate up four
Speaker 1: tenths of one percent. I'm Charlie Pellett and that Greg
Speaker 1: store in June Grosso is a Bloomberg business flash. Thank you, Charlie.
Speaker 1: Imagine sending your children to high school and learning that
Speaker 1: police had put the school on lockdown for several hours
Speaker 1: while they came in with drug dogs and patted down
Speaker 1: each of the nine students, some aggressively any no illegal
Speaker 1: substances parents have. Students in Fork County High School in
Speaker 1: Georgia were furious and some are suing, but the police
Speaker 1: are defending their actions. Add this fact to the equation.
Speaker 1: It's the second time in a month that a search
Speaker 1: was conducted at the school, although the first time there
Speaker 1: were no path downs. Joining us our former federal prosecutor
Speaker 1: George Newhouse, a partner at Denton's, and Laura Donahue, professor
Speaker 1: at Georgetown Law School, George Sheriff Jeff Hobby, said the
Speaker 1: invasive searches were necessary after arrest made in a series
Speaker 1: of local burglaries revealed what he called drug activity at
Speaker 1: the school, and that as long as a school administrator
Speaker 1: was present, the search of the students was legal. What's
Speaker 1: your response to that? That is not clear at all.
Speaker 1: I would actually disagree with that assertion. Certainly, they had
Speaker 1: legitimate need to do this kind of investigation, but as
Speaker 1: far as I can see, particularly a pat down search. Now,
Speaker 1: remember a pat down search is not a full blown
Speaker 1: Fourth Amendment search. So it's and it's justified under the Constitution,
Speaker 1: but it requires at least a reasonable suspicion that a
Speaker 1: particular individual or suspect has contraband or a weapon or
Speaker 1: some something like this. It appears that this search is
Speaker 1: way overbroad. It's not done on consent, and frankly, it
Speaker 1: probably resulted in a Fourth Amendment violation of the various
Speaker 1: students who were subjected to it. Laura, at risk of
Speaker 1: of acting like I'm on the side of the police here. Uh.
Speaker 1: Isn't it established in the law though, that that students
Speaker 1: have lesser lower level of constitutional rights than somebody who's
Speaker 1: just walking out on the street. Uh. So, students do
Speaker 1: have a lesser constitutional rate, but they do have a
Speaker 1: constitutional right. The Fourth Amendment protections apply in public school systems.
Speaker 1: So this has been long established. So the due process
Speaker 1: clause incorporates the build rights against the states, and then
Speaker 1: for Ohio, you know, the Fourth Amendment now applies h
Speaker 1: to the to the states and students particularly. There's a
Speaker 1: case called Tinker for Sa Moine Independent Community School District
Speaker 1: in nine nine that said, you know, no, as students
Speaker 1: don't shed their constitutional rights at the school house gate.
Speaker 1: So the standard though, of reasonableness here is different for
Speaker 1: school administrator than for the police. So for a school
Speaker 1: administrator to do a pat down, it has to be
Speaker 1: reasonable in light of whether it's justified at the inception
Speaker 1: and reasonable in scope and under those criteria. It might
Speaker 1: be reasonable in scope to do a pat down, but
Speaker 1: that's different from the police. For the police to do it,
Speaker 1: so it matters who's doing the search. For the police
Speaker 1: to do it, they have to have probable cause in
Speaker 1: order to do a search, which is which is a
Speaker 1: higher standard. George, When you say pat down, I'm wondering,
Speaker 1: you know, I'm thinking of a pat down like you've
Speaker 1: seen in a TV show. In this case, they admitted
Speaker 1: the police that some of the packdowns were especially aggressive,
Speaker 1: and some reports are that the searches ex tended to
Speaker 1: the girl's bras and the inside of the boys and
Speaker 1: girls pants and thighs. Is that a pat down? Well,
Speaker 1: it's a great question, June. And remember the pat down
Speaker 1: search or stop and frisk goes back to a Supreme
Speaker 1: Court case called Carry versus Ohio, which is at least
Speaker 1: thirty or forty years old. And in that case, it
Speaker 1: was a very limited search. It was literally a a
Speaker 1: officers stopping a suspect he had reasonable suspicion to be
Speaker 1: concerned for his safety and the intrusion of the search
Speaker 1: was extremely limited. So this these aggressive searches, and certainly,
Speaker 1: as you've described it, I would believe that would be
Speaker 1: a full blown Fourth Amendment search that would require probable
Speaker 1: cause or some exception to the warrant requirement that would
Speaker 1: otherwise definding on the police. And I completely agree the
Speaker 1: students have Fourth Amendment rights like anyone else. And there
Speaker 1: may be in some circumstances administrative search is done by
Speaker 1: school officials, which are not really done necessarily for law
Speaker 1: enforceable purposes. Could be said duct to a more lenient standard.
Speaker 1: But um, the kind of search that you're describing intrusion
Speaker 1: would clearly trigger Fourth Amend and interest, Laura, I think
Speaker 1: this may be factually disputed. But if school administrators were
Speaker 1: there watching the police, does that help police at all
Speaker 1: in terms of their their justification? No? No, Actually, the
Speaker 1: courts have come out instaid just standing there is not
Speaker 1: sufficient to trigger, for instance, increased Fourth Amendment protection. So similarly,
Speaker 1: it would not be sufficient for a reduced standard of
Speaker 1: just reasonable suspicion to apply to the search itself. Um,
Speaker 1: and as Georgia is saying, the intrusiveness of the search
Speaker 1: actually is the key point. So there there having cases
Speaker 1: where schools have for instance looked inside um, the band
Speaker 1: you know going around in the pants or in girls
Speaker 1: bras and this has been ruled to be unconstitutional for
Speaker 1: them to do that. The other point that's worth bringing
Speaker 1: up is it's also not sufficient for the reasonableness prong
Speaker 1: even for school administrators to say that somebody hangs out
Speaker 1: with somebody else and therefore they've waived any protections against search.
Speaker 1: So that's actually an insufficient reason to say it's a
Speaker 1: certainly thing that they go to the same school is
Speaker 1: even one step removed from that. So I would really
Speaker 1: question the constitutionality of these actions. And I just want
Speaker 1: to add that the school administrator in this case said
Speaker 1: he did not give any consent to the police to
Speaker 1: do any pat downs. Coming up on Bloomberg law, what
Speaker 1: kind of a search by police constitutes a trespass and
Speaker 1: a Fourth Amendment search? How about swabbing the exterior door
Speaker 1: handle of a car parked at a mall to collect DNA?
Speaker 1: But now the latest world of national news from Nathan
Speaker 1: Hagar in the Bloomberg News Room in Washington, d C.
Speaker 1: Nathan June. Thanks. President Trump has just arrived in Atlanta,
Speaker 1: where he will become the first sitting president since Ronald
Speaker 1: Reagan to address the National Rifle Association's annual convention. President
Speaker 1: will also attend a private fundraiser for a Republican Karen Handle.
Speaker 1: She's headed into a runoff special election for the congressional
Speaker 1: seat that was left empty by Health and Human Services
Speaker 1: Secretary Tom Price. Now before he arrived in Atlanta, the
Speaker 1: President signed another executive order. This one aimed at expanding
Speaker 1: oil and gas drilling in the Arctic and other federal
Speaker 1: waters were unleashing American energy and clearing the way for
Speaker 1: thousands and thousands of high paying American energy jobs. This
Speaker 1: order reverses an effort by then President Obama to make
Speaker 1: most federal waters off limits to drilling indefinitely. California Attorney
Speaker 1: General Javier Bassara released a statement saying his state will
Speaker 1: vigorously oppose offshore drilling shut down averted. First, the House,
Speaker 1: now the Senate have passed a one week spending bill
Speaker 1: to keep the government open. Never too late to do
Speaker 1: the right thing, if my mom used to say, and
Speaker 1: the right thing to do today is to pass this rule.
Speaker 1: Pass this bill, give our friends, the appropriators the time
Speaker 1: that they need to negotiate a final bill. Oklahoma Republican
Speaker 1: Congressman Tom Cole on the House floor those appropriators are
Speaker 1: expected to work through the weekend to iron out their
Speaker 1: differences on a trillion plus dollar bill for the rest
Speaker 1: of this fiscal year. Global News twenty four hours a day,
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Speaker 1: Bloomberg Business Lack. Bloom Bloomberg World Handquaters. I'm Charlie Pellock
Speaker 1: Nezdak trading close to a record. The downin SMP lower
Speaker 1: little change right now. Treasuries are dropping, oil closing in
Speaker 1: on fifty dollars of barrel even after the US economy
Speaker 1: report of its slowest pace of expansion in three years.
Speaker 1: The tenure yield two point three percent, Gold up two dollars,
Speaker 1: the ounce to twelve sixty seven up two tenths of
Speaker 1: one percent. West Texas Intermedia crewed up thirty cents of
Speaker 1: arrel seven on w t I up six tenths of
Speaker 1: one percent. The SMP five hundred index down four four
Speaker 1: down two tenths of one percent down. Industrials down forty
Speaker 1: also a drop of two tenths of one percent. Nastack,
Speaker 1: Laura Little changed down now by half a point. I'm
Speaker 1: Charlie Pelotan That gregg store in June Grosso is a
Speaker 1: Bloomberg business flash. Thank you so much, Charlie. When does
Speaker 1: police action count as a Fourth Amendment search? The Supreme
Speaker 1: Court has said the government commits a search when it
Speaker 1: trespasses on a person's houses, papers, and effects, among other things.
Speaker 1: But here's the problem. What's the test for a trespass?
Speaker 1: In a new decision of Louisiana, federal judge found that
Speaker 1: the police swabbing the exterior door of a murder suspects
Speaker 1: car parked in a mall for DNA was a Fourth
Speaker 1: Amendment search because it trespassed on the car. We've been
Speaker 1: talking to former federal prosecutor George Newhouse, a partner at Denton's,
Speaker 1: and Laura Donahue, a professor at Georgetown Law School. George,
Speaker 1: this investigation is the subject of the Discovery Channel TV
Speaker 1: show Killing Fields. Tell us what happened? Well, the individual Schmidt,
Speaker 1: was suspected of having committed a murder and the police
Speaker 1: decided that they needed his d N a UH to
Speaker 1: obviously compare against samples collected in the evidence. So they
Speaker 1: went to his car and on the external side of
Speaker 1: the car, the door handle, they swabbed UH and obtained
Speaker 1: his DNA. So they didn't actually go inside the car, UH,
Speaker 1: they simply swabbed the X the handle and obtained DNA,
Speaker 1: and he then brought a lawsuit inter this wasn't necessarily
Speaker 1: at this point the result of the criminal prosecution that
Speaker 1: Schmidt sues the police and says, you've violated the Fourth
Speaker 1: Amendment by conducting a search on the external part of
Speaker 1: my car and my DNA is private and you didn't
Speaker 1: have probable cause, which they didn't or warrant to obtain it.
Speaker 1: So that's where the issue was fronted, and the judge
Speaker 1: basically actually ironically dismissed the lawsuit, but after finding that
Speaker 1: there had been in fact of search. So it's an
Speaker 1: interesting issue of continuing march of technology because you know,
Speaker 1: twenty five years ago this would never have even been
Speaker 1: an issue. Laura, I think it is the case that,
Speaker 1: in correct me if I'm wrong, that if somebody you know,
Speaker 1: took a sip out of a plastic cup and threw
Speaker 1: it in the trash, there'd be no problem with with
Speaker 1: police getting the DNA from that cup. How did the
Speaker 1: judge here describe why a car in a parking lot
Speaker 1: might be different from that cup in a trash can. Yeah.
Speaker 1: So the case that you're referring to is a case
Speaker 1: called Cerralo where somebody had put garbage out on the
Speaker 1: curb site and the court, in a in a fairly
Speaker 1: closely uh closely divided court decided that that was not
Speaker 1: a search. But in this case, there was another case
Speaker 1: that's interviewing in. There's a case called United States First Jones.
Speaker 1: And in that case, there was a suspected drug dealer
Speaker 1: in Washington, d c. And the police went to get
Speaker 1: a warrant to put a bug on the perspected drug
Speaker 1: dealer's wife's car, for they had a ten day period
Speaker 1: to put that device on the car. And outside of
Speaker 1: that ten day period, they put the device on the car,
Speaker 1: and then they followed that car around for twenty eight days.
Speaker 1: And when that came to the Supreme Court, Justice Scalia
Speaker 1: offered the opinion of the court which said that it
Speaker 1: was a trespass because attaching a deeper to the outside
Speaker 1: of the car was a trespass on the car itself.
Speaker 1: And he got a majority. So five justices went with
Speaker 1: him on that case that that actually this was a trustpass.
Speaker 1: So what's interesting if there's there's another case, kind of
Speaker 1: a companion case that that didn't come up in this
Speaker 1: contexts that Maryland versus King, where you have somebody who
Speaker 1: had had been a suspected of assault and he was arrested,
Speaker 1: and when he was arrested, they did a slab of
Speaker 1: his cheek and got his DNA and when they ran
Speaker 1: at DNA, they found that it matched the evidence in
Speaker 1: a rape case and they used that evidence to convict him.
Speaker 1: So when the question came to the court, can you
Speaker 1: take DNA evidence and use it for this other crime?
Speaker 1: You know, is as a search again? Hight Court five four.
Speaker 1: Justice Kennedy authored the opinion. He said, well, there's a
Speaker 1: legitimate state interest. H It's not invasive enough when you
Speaker 1: take DNA from inside somebody's mouth. It was collected during
Speaker 1: the booking and arrest. Therefore it could be used. But
Speaker 1: Justice Scalia authored the defense there and he said, no,
Speaker 1: the Fourth Amendment protects the search of a person for
Speaker 1: evidence of a crime without probable cause, and that this
Speaker 1: was operating as a general warrant. So the question here
Speaker 1: is between this US versus Jones case, where touching the
Speaker 1: outside of a car as a trespass and this DNA case,
Speaker 1: where it was actually the desfense that said this is
Speaker 1: a search to actually take somebody's DNA. So, George, it
Speaker 1: seems as if there's room to disagree with the way
Speaker 1: the judge decided this case. I mean, do you think
Speaker 1: that there's room to disagree? Not only is there room,
Speaker 1: but I do disagree with the Federal District judge's opinion,
Speaker 1: and I do not believe that's the Supreme Court will
Speaker 1: follow this this line of thinking. Um. As Laura correctly
Speaker 1: points out. The real problem, however, is this current standard
Speaker 1: of determining whether there's a legitimate fourth amend interest by
Speaker 1: coming up with this property that's trust task to chattels,
Speaker 1: which is just an archaic term of course for property. UM.
Speaker 1: And that was in fact the rationale and Jones. But
Speaker 1: in this case, I think the the answer is going
Speaker 1: to be if you leave something in the public, whether
Speaker 1: it's trash put at the side of the curb or
Speaker 1: the external the exterior of your car, I don't think
Speaker 1: the Court's going to say that we have a continuing
Speaker 1: Fourth Amendment right of privacy, and I think that legitimate
Speaker 1: police investigations where they are sampling or getting evidence from
Speaker 1: something that you consciously put in the public. Now you
Speaker 1: may not realize that your DNA is out there as well,
Speaker 1: but it is out there. It would be available for
Speaker 1: anyone to, you know, come by and swab the exterior
Speaker 1: handle of your of your of your car door. So
Speaker 1: I think at the end of the day, the Supreme
Speaker 1: Court will probably not follow this this logic. Laura, do
Speaker 1: you agree with that, and if so, how do you
Speaker 1: distinguish it from the Jones case? I mean both of
Speaker 1: their cases where there wasn't any damage to the car.
Speaker 1: In Jones it was just a device put on the car.
Speaker 1: Um If that was the Fourth Amendment action there, why
Speaker 1: wouldn't this be Oh, I do disagree, respectfully, George. I
Speaker 1: disagree with that because in this case, so you have
Speaker 1: somebody stopping the outside of a car and getting very
Speaker 1: personal information. And the Fourth Amendment grants the right uh
Speaker 1: for people to be secure in their persons, houses, papers,
Speaker 1: and effects, and part of that right to be secure
Speaker 1: in your person has control over your DNA. So just
Speaker 1: as the Justice Scalia in the descent in Maryland versus
Speaker 1: King pointed out this was a search to find out
Speaker 1: more about somebody's DNA and to identify people using DNA.
Speaker 1: And you combine that with the trust pass that goes
Speaker 1: on when you attach something to a car, which is
Speaker 1: the court's decision in this case. In addition, the idea
Speaker 1: of public verse private, this is one of many ways
Speaker 1: fourth Moment doctrine is really unsuited to a digital age.
Speaker 1: There's this idea that when you're in your home your private,
Speaker 1: but when you leave your home, it's not a search
Speaker 1: because you're in public. Yet, a shadow majority and Jones
Speaker 1: recognized that following a car for twenty eight days, even
Speaker 1: though that car was on public streets, that there is
Speaker 1: a privacy interest in that. Now the Court has not
Speaker 1: fully moved in that direction. People point at this as
Speaker 1: a shadow majority in Jones, even though it's decided on
Speaker 1: trustpass grounds. But I think the court, if you look
Speaker 1: at that case, in the Florida versus Riley case, which
Speaker 1: is has to do with a search of an individual's
Speaker 1: cell phone, the court is beginning to understand it in
Speaker 1: a digital age, not everything that's done in public can
Speaker 1: be collected twenty four seven, and there's no privacy interest entailed.
Speaker 1: You can learn a tremendous amount about an individual from
Speaker 1: what happens in public there's that kind of constant monitoring
Speaker 1: is problematic. So I actually think the court might go
Speaker 1: a different direction and finally recognize that we can have
Speaker 1: a privacy interest in what we do in public space,
Speaker 1: and in this instance it has to do with the
Speaker 1: sanctity of the person their DNA. It's hard to think
Speaker 1: of anything more fundamental to personal privacy than your genetic material.
Speaker 1: I want to thank you both. It's good to have
Speaker 1: a difference of opinionency both sides. That's Laura Donna Hugh,
Speaker 1: a professor Georgetown Law School, and former federal prosecutor. George Newhouse,
Speaker 1: a partner at Denton's. That's it for this edition of
Speaker 1: Bloomberg Law. We'll be back Monday at one pm Wall
Speaker 1: Street Time. In about fifteen seconds, Corey Johnson coming up
Speaker 1: with Bloomberg Markets. What's happening, Corey. Maybe Corey is is
Speaker 1: not right there, but I will tell you that a
Speaker 1: lot is going to be happening there in San Francisco.
Speaker 1: Corey Johnson and Carol Masser coming up on Bloomberg markets.
Speaker 1: This is Bloomberg