Infidelity: how to cope with a cheating spouse

Infidelity in your fifties can be particularly unsettling, says Sarah Cornwell. But you can move on and it can lead to positive change.

Finding out that your partner is having an affair is devastating at any age, but if you’re in your fifties and you’ve been together for years the shock is seismic. Suddenly you’re forced to see the person you thought you knew in a totally new light.

“It makes you feel that all the certainties in the world are collapsing around you,” says Andrew G Marshall, one of the wisest and most experienced marital therapists in the business. “Even if you accept your own contribution towards the problem, the realisation that you get rewarded like this just because you took your eye off the ball not only undermines your trust in your partner but in the general sense that the world is a fair place.”

The fifties are a classic time for affairs. The sense of ‘Is that all there is?’ hangs heavy in the air and the kids are no longer the glue that binds couples together. But no matter how commonplace infidelity has become (it is estimated that 30 to 40 per cent of us will stray at some stage) it is always painful.

So how can you handle the emotional chaos of those first few weeks, when you can’t eat, your brain won’t stop and the only thing that gets you through the night is a hefty dose of Temazepam?

With any luck, at this stage in life, you’re able to overcome the initial impulse to reach for the nearest blade – tempting though it may be – or make off with the mistress’ kitten, like MP’s wife Christine Hemming. Rather than storming out, you’re more likely to take a considered view of what you really want.

“I had always assumed that if my husband was unfaithful I’d leave him,” says Anna, who discovered her husband’s two-year affair with a colleague three years ago. “But when it actually happened to me I reacted very differently, I think because I’d learned from previous crises in our relationship that impetuous gestures are usually counter-productive as well as hard to go back on. I thought very carefully about what was at stake.

“My initial instinct was to tell the whole world the gory details – his parents, our kids, the taxi driver, my hairdresser. I held back, and now I’m so relieved I did. We told the kids the bare minimum, and I found that it was better to talk to just one or two good friends, because otherwise I got too much conflicting advice.

“I remember times when it was a huge relief to be with people who didn’t know anything about the affair.”

Andrew Marshall’s book, How Can I Ever Trust You Again?, speaks to the partner who has had the affair as well as the one who discovered it. Marshall says the hardest thing about the immediate aftermath is learning to live with uncertainty. He urges couples to accept the complexity of their emotions.

“It’s normal to be filled with all sorts of contradictory feelings: love and hate, hope and despair, fear and relief. We don’t like living with ambivalence, and often push ourselves to come down on one side or the other, even if it makes things worse. And there is a tendency to think, I’m in so much pain we’ve got to solve this now. In fact, there is no ticking clock.”

It’s reassuring that 25 years spent counselling couples through the aftermath of affairs has convinced Marshall that, despite all the misery and pain, the soul-searching that follows can make those relationships that survive stronger and better.

“There are many positives: you and your partner will probably speak more to each other in five days than you have in five years. Affairs have the capacity to bring all the unburied bodies in your relationship to the surface. So you’re not just dealing with the affair itself, but also with the long-term issues that you ignored beforehand, which usually turn out to be not as big or as scary as you thought. And that, ultimately, must be a good thing.”

How to cope with the shock: Andrew Marshall’s tips

Resist the temptation to throw your partner out straight away. You need answers to your questions.

Equally, don’t forgive too soon. You can’t forgive until you know what’s happened and seen its full impact.

Don’t make major decisions when you’re in shock. Put off the decision to stay or go for as long as possible.

Tell your kids the absolute minimum: “We’re having problems and we’re sorting it out” is quite enough.

Don’t tell the world and his dog. What you need is a sensible friend who won’t tell you what to do, preferably someone who doesn’t know your partner well (and who hasn’t gone through a bitter divorce themselves).

The healing process starts when you give your partner the chance to tell you.

Read more

Facebook Infidelity: Cheating Spouses Go Online

Facebook has apparently become the new “lipstick on your collar.”

Twenty percent of divorces involve Facebook and 80 percent of divorce lawyers have reported a spike in the number of cases that use social media for evidence, according to a survey by the American Academy of Matrimonial Lawyers.

It’s so common that there’s a website dedicated to Facebook cheating.

FacebookCheating.com’s founder says he started the site after his now ex-wife had an affair with an old flame she re-ignited on Facebook.

The site is an outlet that gives tips on how to catch a cheating spouse in the age of social networks and heartbreaks across the Web.

“Facebook has ruined my marriage of almost 20 years,” a man wrote on another support group website, marriagehelper.com. “My wife ‘reconnected’ with old boy friends and even started innocently flirting with a stranger.”

Stories of infidelity posted on such websites illustrate how the social media network has helped to reconnect former lovers.

Even celebrities are not immune.

Actress Eva Longoria has said that husband Tony Parker strayed with a woman he kept in touch with on Facebook early in their marriage.

Indeed, real-life desperate housewives have discovered that opportunities to cheat aren’t sitting at the next barstool but a keystroke away.

Couples Led Astray

Marriage counselor Terry Real said he believes that Facebook can provide a sort of fantasy for a cheating spouse.

“There is nothing more seductive than the ‘one that got away’ fantasy is always better than someone who’s up to her eyeballs in bills and diapers,” he said.

The Rev. Cedric Miller, a pastor in New Jersey, made headlines recently when he called Facebook a “portal to infidelity” and told his parishioners to delete their accounts after 20 couples confessed that Facebook led them astray.

Miller himself took a leave of absence because of his own (non-Facebook) sexual transgressions. He later admitted to having a three-way sexual relationship in the past.

A connection is made and it starts out platonic and can later turn into something more. But such connections cannot solely be blamed on Facebook, therapists say.

“Before it was e-mail, then before that it was the phone,” Real said. “The problem is not Facebook, it is the loss of love in your marriage.”

Read more

No Reasonable Expectation of Privacy on Facebook, Pa. Judge Says

Even without appellate case law in Pennsylvania to provide guidance on the discoverability of information on Facebook, the standard is becoming clear: Post at your own risk.

Three courts in this state have now decided that, if a party in a civil case posts information on his or her Facebook page, and that information appears to contradict statements in discovery or testimony, then the party’s Facebook page falls within the scope of discovery.

In the most recent case, Largent v. Reed, a Franklin County judge ordered plaintiff Jennifer Largent to turn over her Facebook username and password to defendant Jessica Rosko, who allegedly caused an auto accident that left plaintiffs Jennifer and Keith Largent with “serious and permanent physical and mental injuries.”

The decision came in Common Pleas Court Judge Richard J. Walsh’s 14-page opinion, the beginning of which reads like a Sunday driver’s debriefing on the world’s most popular website. According to Walsh, Jennifer Largent’s Facebook page brought up questions about the extent of her injuries.

According to the opinion, the page reveals Jennifer Largent posted about going to the gym, despite testifying that she needed to walk with a cane. Pictures on the website show Largent “enjoying life with her family.” Walsh pointed to these examples from the “public” profile that helped satisfy the slight relevancy standard the defense needed to probe the rest of her page. The plaintiffs filed negligence and loss of consortium claims.

Walsh said there can be “little expectation of privacy” on a social networking site.

He said no court has ever recognized a “general privacy privilege” for Facebook information, “and neither will we.” The opinion, which also warns readers of the “dark side” of social media, opens with Facebook’s long-standing motto — “Facebook helps you connect and share with the people in your life” — and goes on to quote the site’s policy on responding to legal requests, preventing harm and sharing user’s information.

“Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets,” Walsh said.

Walsh also addressed whether the 1986 Stored Communications Act prohibited disclosure of Largent’s Facebook information, a novel issue in Pennsylvania and a question he said only one other court in the country had discussed. The SCA did not apply to Largent, Walsh said, because Rosko was seeking information directly from the plaintiff rather than serving subpoenas on Facebook, itself. Walsh said the SCA only covered internet service providers, though he acknowledged the “terms are somewhat confusing because they reflect the state of computing technology as it existed in 1986.”

Largent joins Zimmerman v. Weis Markets Inc. and McMillen v. Hummingbird Speedway Inc. as defense victories in a sprouting body of case law dealing with Facebook. The apparently lone plaintiff win on the subject in Pennsylvania — Piccolo v. Paterson — came after the plaintiffs attorney successfully argued his case was distinguishable from McMillen because there were no allegations his client posted one thing and said another.

The plaintiff cited Piccolo and a Philadelphia case, Kennedy v. Norfolk S. Corp., which was not available at press time.

Walsh said making a Facebook page “private” does not shield it from discovery because even private posts are shared with other people.

Jennifer Largent also said that disclosure of her account information would cause unreasonable embarrassment and annoyance, but Walsh rejected the argument.

Largent compared the discovery request to the court allowing for discovery of all of her private photo albums and e-mails.

“But those analogies are mistaken in their characterization of material on Facebook,” Walsh said. “Photographs posted on Facebook are not private, and Facebook postings are not the same as personal mail.”

He said Largent did not specifically identify anything to indicate such discovery would cause unreasonable embarrassment and added that a probe of her Facebook account was “one of the least burdensome ways to conduct discovery.”

Leonard Deutchman, who writes a cyber law column for the Pennsylvania Law Weekly, said the decision is more narrow than some of the leading federal case law dealing with Facebook, because the defendant in this case is seeking information directly from the plaintiff.

“Largent has far less to protect herself with from fending off discovery requests than would Facebook,” Deutchman said.

According to the opinion, the case stems from a chain-reaction accident in which Rosko allegedly collided with a minivan, driven by additional defendant Sagrario Pena, that then crashed into a motorcycle being ridden by both plaintiffs.

Rosko’s attorney, Donald L. Carmelite of Marshall Dennehey Warner Coleman & Goggin in Harrisburg, declined to comment on the decision, citing his firm’s policy to not discuss cases with the media without prior consent from the client.

Read more

I-Team finds 16 missing kids using Facebook

TAMPA – Tonight, there are missing children out on the streets who may never be found. The National Center for Missing and Exploited Children lists 285 Florida children as currently missing and endangered.

The I-Team has been able to locate 16 missing children as part of an ongoing investigation. It didn’t take private investigators, hours of combing through public records, or interviews with friends and family.

We found them when we discovered that many missing children have active Facebook pages. Many post where they are living, who they are with, photos, and even phone numbers. All of that information provides clues that could help bring the child to safety.

By reaching out to them on Facebook, I-Team investigator Michael George has been able to interview several missing children on the phone, online, and in person. The stories they told us raise questions about how much is being done to find them, and why they are still considered missing even after we found them so easily.

Alisha Lollis is one of Florida’s missing runaways. She was reported missing in July of 2010 after she ran from a group home. St. Petersburg Police say they had contact with her earlier this year, but she is still considered missing and endangered by the National Center for Missing and Exploited Children.

We found her hiding in plain sight, living with a friend in Pinellas Park.

“What did you think when you heard from us?” asked investigator Michael George.

“I was like, wow. They found me after all this time? It was amazing,” Lollis said.

Lollis recently turned 18. Because her whereabouts and safety are unknown to the National Center for Missing and Exploited Children, she is still considered an endangered runaway.

She told us she was safe and doing well. She bounced from house to house, never staying in one place for too long. She says she’s overcome drug abuse, and she’s working to get her GED. But the road has been difficult.

“Let’s put it this way. I’ve been to like 13 different schools,” Lollis said.

A 15-year old runaway from Clearwater spoke with us online.

“Are you ok? Not in any danger?” George asked.

“yes im fine not in any danger i got the street smarts to keep myself safe,” she wrote back. She also told us she’s not in school and doesn’t have a job.

The children we located have been missing for months, and in some cases, years. We found them in just minutes by searching for them on Facebook. Some of the missing children wouldn’t speak with us, but the ones who did all told us no one had tried to locate them through Facebook before.

We passed along the information we found to FDLE, police departments and sheriff’s offices across Florida.

The National Center for Missing and Exploited Children (NCMEC) say they do use Facebook to try and locate missing teens, as do local law enforcement agencies. But they add that teens who run away over and over again aren’t always a top priority for overworked police departments.

“That’s reality. You have agencies that have homicides, they have shootings, they have armed robberies, lots of priorities in the community,” said Robert Lowery, executive director of the missing child division of NCMEC.

Every law enforcement agency we spoke with insisted finding runaways is a priority and they use Facebook to find them. But they don’t contact them through their page, knowing that many runaways would simply block the page if they didn’t want to be found.

The Clearwater Police Department says they put a greater focus on locating runaways than most police departments. They say they often monitor and communicate with missing children on Facebook.

Authorities also argue that just because we found their Facebook pages doesn’t mean they’ll find the child.

“What we’ve found is a lot of times, the information kids post is not always current, or, they’re smart about it. If it’s a case where they don’t want to be found, maybe they’re not posting exactly the correct information,” said Clearwater Police Department spokeswoman Elizabeth Watts.

So why haven’t police made contact with the children we found? The answer may come from why they ran in the first place.

Many of the missing teens who spoke with Michael George said they’re running away from abuse, even rape. They said in no uncertain terms that they didn’t want to be found. They believed they were better off on their own.

Alisha Lollis said she’s been in hiding since facing physical abuse in her group home. A 16-year old runaway agreed to talk with us online, in the hopes that it would help us locate other missing kids.

But she also told us, “I know you’re a reporter, but if you get the cops involved you’re going to do a story on a 16-year old who died because you told the cops.”

She wouldn’t reveal her exact location. Lollis says she knows what the teen is going through.

“Is there any advice that you would have for them?” asked George.

“Go public. Don’t be scared about what people could say about you or what you’re going to go through,” Lollis said.

Lollis believes law enforcement could do more to locate repeat runaways.

“I know that when I ran away, I wanted someone to find me. I wanted someone to care enough to go looking for me. But that never happened,” Lollis said.

The I-Team is working to contact the parents of the children we located. But in some cases, the parents are harder to find than their missing children. Law enforcement tells us in at least some of the cases we uncovered, the parents lost custody of their children.

Read more

Malls track shoppers’ cell phones on Black Friday

Attention holiday shoppers: your cell phone may be tracked this year.

Starting on Black Friday and running through New Year’s Day, two U.S. malls — Promenade Temecula in southern California and Short Pump Town Center in Richmond, Va. — will track guests’ movements by monitoring the signals from their cell phones.

While the data that’s collected is anonymous, it can follow shoppers’ paths from store to store.

The goal is for stores to answer questions like: How many Nordstrom shoppers also stop at Starbucks? How long do most customers linger in Victoria’s Secret? Are there unpopular spots in the mall that aren’t being visited?

While U.S. malls have long tracked how crowds move throughout their stores, this is the first time they’ve used cell phones.

But obtaining that information comes with privacy concerns.

The management company of both malls, Forest City Commercial Management, says personal data is not being tracked.

“We won’t be looking at singular shoppers,” said Stephanie Shriver-Engdahl, vice president of digital strategy for Forest City. “The system monitors patterns of movement. We can see, like migrating birds, where people are going to.”

Still, the company is preemptively notifying customers by hanging small signs around the shopping centers. Consumers can opt out by turning off their phones.

The tracking system, called FootPath Technology, works through a series of antennas positioned throughout the shopping center that capture the unique identification number assigned to each phone (similar to a computer’s IP address), and tracks its movement throughout the stores.

The system can’t take photos or collect data on what shoppers have purchased. And it doesn’t collect any personal details associated with the ID, like the user’s name or phone number. That information is fiercely protected by mobile carriers, and often can be legally obtained only through a court order.

“We don’t need to know who it is and we don’t need to know anyone’s cell phone number, nor do we want that,” Shriver-Engdahl said.

Manufactured by a British company, Path Intelligence, this technology has already been used in shopping centers in Europe and Australia. And according to Path Intelligence CEO Sharon Biggar, hardly any shoppers decide to opt out.

“It’s just not invasive of privacy,” she said. “There are no risks to privacy, so I don’t see why anyone would opt out.”

Now, U.S. retailers including JCPenney (JCP, Fortune 500) and Home Depot (HD, Fortune 500) are also working with Path Intelligence to use their technology, Biggar said.

Home Depot has considered implementing the technology but is not currently using it any stores, a company spokesman said. JCPenney declined to comment on its relationship with the vendor.
Why Apple and Google need to stalk you

Some retail analysts say the new technology is nothing to be worried about. Malls have been tracking shoppers for years through people counters, security cameras, heat maps and even undercover researchers who follow shoppers around.

And some even say websites that track online shoppers are more invasive, recording not only a user’s name and purchases, but then targeting them with ads even after they’ve left a site.

“It’s important for shoppers to realize this sort of data is being collected anyway,” Biggar said.

Whereas a website can track a customer who doesn’t make a purchase, physical stores have been struggling to perfect this kind of research, Biggar said. By combining the data from FootPath with their own sales figures, stores will have better measurements to help them improve the shopping experience.

“We can now say, you had 100 people come to this product, but no one purchased it,” Biggar said. “From there, we can help a retailer narrow down what’s going wrong.”

But some industry analysts worry about the broader implications of this kind of technology.

“Most of this information is harmless and nobody ever does anything nefarious with it,” said Sucharita Mulpuru, retail analyst at Forrester Research. “But the reality is, what happens when you start having hackers potentially having access to this information and being able to track your movements?”

Last year, hackers hit AT&T, exposing the unique ID numbers and e-mail addresses of more than 100,000 iPad 3G owners. To make it harder for hackers to get at this information, Path Intelligence scrambles those numbers twice.

“I’m sure as more people get more cell phones, it’s probably inevitable that it will continue as a resource,” Mulpuru said. “But I think the future is going to have to be opt in, not opt out.”

Read more

Entering premises to arrest; the threshold question

These two statements reflect the historical importance of the private dwelling in Anglo-American culture and law. Deeply entrenched in the concepts of the English common law, and explicitly memorialized in the fourth amendment to the U.S. Constitution, the concept has lost none of its vigor today. While granting police considerable latitude in taking warrantless action against suspected criminals when they are located in areas outside the residence, the U.S. Supreme Court has continued to afford the highest levels of fourth amendment protection to those privacy interests normally associated with one’s home.

Illustrative of this point is the Court’s relatively recent application of a warrant requirement to police entries into private premises for the purpose of effecting arrests inside. In 1976, in Watson v. United States,(1) the Court declined to impose a warrant requirement for felony arrests that occur in public places, holding that the validity of such arrests hinges on the existence of probable cause and not on whether the officers have an opportunity to acquire an arrest warrant.

Just 4 years later, in Payton v. New York,(2) the Court held that if the arrest involves an entry into the suspect’s private residence, an arrest warrant is necessary–absent an emergency or consent–to justify that entry. The following year, in United States v. Steagald,(3) the Court held that absent an emergency or consent, a search warrant is necessary to enter a third party’s premises to make an arrest.

Both Payton and Steagald focus on the legality of the entry into a residence as the basis for fourth amendment concerns, as distinct from the lawful authority to arrest the suspects, and make it clear that the legal authority to arrest a person does not, by itself, justify an intrusion into a private dwelling to do so. The significance of this distinction between police authority to arrest and police authority to enter premises to arrest was further highlighted by the Court’s decision in New York v. Harris.(4)

In Harris, officers made a warrantless entry into the subject’s residence to arrest him. Following his arrest, and after he had waived his Miranda rights, the suspect made incriminating statements. A later interrogation at the police station resulted in additional incriminating statements.

The defendant filed motions to suppress both statements as the products of an unlawful arrest. However, the Supreme Court limited suppression to those statements made in the residence, reasoning that these statements alone were the product of a fourth amendment violation, i.e., an unlawful entry of the premises. The defendant’s later statements at the station were admissible because the arrest itself was supported by probable cause.

The practical consequence of the Payton-Steagald rule is that while an arrest supported by probable cause is constitutional, a warrantless entry into a residence to effect the arrest may not be. As the Harris case illustrates, the obvious remedy for an unconstitutional entry into a private dwelling is suppression of evidence acquired against any person whose constitutional rights were infringed by the unlawful entry.

In addition to the suppression of evidence, an aggrieved party may also have redress through a lawsuit alleging a violation of constitutional rights. The point is that police officers run grave risks if, in their zeal to arrest their suspect, they ignore the potential legal consequences associated with entries into private dwellings.

Because judicial concern over police entries into private dwellings spawned these rules, it is critical to determine when an entry occurs. The Court’s admonition that the “threshold may not be crossed” provides the starting point for the inquiry and suggests that an “entry” occurs when police “cross the threshold” of a dwelling. It is essential, however, to ascertain what is commonly meant by the term “threshold” and what constitutes crossing it.

THE THRESHOLD

The dictionary defines “threshold” as: “A sill of timber or stone forming the bottom of a doorway and crossed in entering a house or room; the entrance to a house, building, or room.”(5) The Supreme Court apparently had a similar definition in mind in United States v. Santana,(6) when it concluded that a suspect who was standing in her doorway as officers approached to arrest her was, for constitutional purposes, in a “public place.” One officer testified that she was “standing directly in the doorway–one step forward would have put her outside, one step backward would have put her in the vestibule of her residence.”(7)

Because an arrest at that location would not involve a “crossing of the threshold,” the Court concluded that it would have been justified without a warrant. Accordingly, because the arrest would have been lawful if made in the doorway, the police were justified under the doctrine of “hot pursuit” to follow the suspect when she retreated into her house and complete the arrest inside.

From the holding in Santana, it can be concluded that the doorway is the “entrance to the house” to which the Supreme Court was referring in Payton. Because all police intrusions onto private property do not implicate the same fourth amendment interests as does an entry into a private residence,(8) the courts have permitted warrantless arrests in the yard of a residence,(9) on the porch,(10) or even in the hallway of an apartment building.(11)

As these cases demonstrate, no actual entry into a residence occurs if the suspect is on, or outside, the threshold at the time of the arrest. However, two significant problems have emerged as the lower courts have attempted to interpret and apply the Supreme Court decisions in Payton and Steagald. First, it is not always clear when an actual crossing of the threshold has occurred. Second, some courts have held that a crossing of the threshold was not necessary and that in some circumstances the police “constructively” entered a residence even though no physical entry into the dwelling occurred. The distinction between the actual entry and the constructive entry is discussed and illustrated below.

ACTUAL ENTRIES–CROSSING THE THRESHOLD

It is not disputed that an actual, physical entry into private premises to effect an arrest is the kind of police activity the Payton-Steagald rule was designed to control. In both of those cases, law enforcement officers physically crossed the threshold–i.e., walked through the door–and entered a private residence. But a number of questions arise if the police do not actually step across the threshold.

For example, a suspect may be standing just inside the doorway at the time of arrest, so that the officers do no more than reach across the threshold. Or the suspect may choose to respond to the arrest announcement by inviting the officers inside or by stepping outside the residence. Unlike the cases where police officers unquestionably enter the residence by crossing the threshold, doorway arrests present the police and the courts with a number of variables.

On the Threshold

Predictably, after the decisions in Payton and Steagald, cases arose where officers made warrantless arrests of unwary suspects who responded to a knock at the door. In many cases, courts have simply analogized the facts to those in the Santana case and held that no entry occurred during these “doorway” arrests because the defendant was in a “public place” while standing in the doorway of the house.(12) In these cases, the courts either concluded or assumed that the officers did not have to cross the threshold to effect the arrests.

Typical of this approach is United States v. Carrion,(13) where Federal agents gained the assistance of a hotel housekeeper to effect the arrest of one of the guests. When the housekeeper knocked on the hotel room door and announced “Housekeeping,” the suspect opened the door to discover agents with pointed guns announcing that he was under arrest. The agents then entered the room, conducted a protective sweep for other individuals, and discovered evidence.

In response to the defendant’s motion to suppress the evidence on the theory that the warrantless arrest “in his hotel room” was unconstitutional, the court held:

“…the arrest was effected before the agents entered [defendant's] hotel room…[His] arrest occurred as he stood in the doorway of his hotel room and was first confronted by [the agents], who were standing in the hallway.”(14)

The court in Carrion did not make an intense inquiry into the defendant’s precise location at the moment of his arrest, simply concluding that he “stood in the doorway.”

Inside the Threshold

If the facts of the case more clearly indicate that the suspect was located inside the threshold at the time of the arrest, some courts have concluded that a police entry occurred. Furthermore, some courts have taken a strict view of Payton and considered any intrusion across the threshold–no matter how incidental–as constituting an entry.

In State v. Johnson,(15) the court held that an entry occurred when an officer placed his foot partially in the doorway to keep the suspect from slamming the door. The court stated that “even though [the officer's] position in the doorway was from just the ‘toenails’ to the ‘balls of the feet,’” it was the type of entry that the Supreme Court had warned against in Payton.(16) Most courts have chosen not to be as strict in applying the Payton standard, perhaps either because the facts regarding the precise locations of officers and suspects are frequently difficult to ascertain or because judges are influenced by the Supreme Court’s admonition that fourth amendment issues cannot be readily resolved by resort to “metaphysical subtleties.”(17)

Accordingly, if no more is involved than reaching across the threshold to grab the suspect, most courts have found that no entry occurred. This view seems most consistent with the language of Payton that describes the crossing of the threshold as fourth amendment concern and avoids what one commentator characterized as the “plumb bob” approach to analyzing the entry question.(18)

CONSTRUCTIVE ENTRIES

The notion of a “constructive entry” has emerged in cases where the facts cannot reasonably support the conclusion that a physical entry into private premises has occurred. For example, the police may knock on a suspect’s door, demand entry, and then announce that he is under arrest when he appears “in the doorway”; or the police may surround a suspect’s residence and demand that he surrender. While no actual entry into a private residence has occurred in either case, some courts construe such police actions as tantamount to a physical crossing of the threshold.

The primary impetus for this view seems to be a concern that the police will seek to accomplish warrantless arrests by simply coercing or otherwise luring suspects into areas where no actual entry into private premises is implicated. Courts that adopt this view hold that if the arrestee did not voluntarily put himself in a “public place,” then a constructive entry occurred.

An illustrative case is United States v. Morgan.(19) Law enforcement officers surrounded a suspect’s residence and ordered him and the other occupants to come outside. Although the suspect complied with the commands and was taken into custody outside the house, the court held that “the arrest of [the suspect] occurred while he was present inside a private home.”(20) (Emphasis added). The court explained:

“Although there was no direct police entry into the…home prior to [the suspect's] arrest, the constructive entry accomplished the same thing….”(21)

The court based this conclusion on the principle that “…it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home.”(22)

Other courts distinguish cases where the police simply knock on the door and await the suspect’s response from those where the police knock on the door and demand the suspect’s presence. For example, in McKinney v. George,(23) the suspect opened his door when police knocked and submitted to them when told he was under arrest. The court held that no fourth amendment violation had occurred and observed:

“[The officers] did not cross the threshold of [the suspect's] apartment. When he opened the door to their knock they told him to come along with them and he did so. If he had refused and they had come in and taken him we might have a different case.”(24)

A contrary result was reached in United States v. Edmonson,(25) where the suspect responded to a knock on his door by looking through the peephole when an FBI agent yelled, “FBI. Open the door!”. The suspect opened the door and allowed the agents to enter and place him under arrest. The court held that the suspect did not voluntarily place himself in a position where a warrantless arrest would be permissible.(26)

While this rationale has gained some support among the courts, it seems inconsistent with both the explicit language in Payton and recent Supreme Court decisions that define fourth amendment seizures of persons. To the extent it rests on the assumption that the Supreme Court’s concerns in Payton related to the location of the suspect at the time of arrest, it is difficult to square with the clear language of the Court that focused on the warrantless crossing of the residential threshold.

A court’s discontent with the police tactic of ordering the suspect to come out of the house is easier to share if the purpose of the Payton and Steagald decisions was to create a warrant requirement for arrests that is comparable to the warrant requirement for searches. However, as previously noted, the Supreme Court has not only rejected a general requirement for warrants to effect arrests but also has emphasized that it is not the arrest of the person but the entry into the private domain of the home that demands the higher level of fourth amendment protection.

If it is a correct assumption that the location of the suspect inside a residence at the time of arrest is sufficient to trigger the Payton-Steagald rules, it does not necessarily follow that an arrest has occurred just because the police have demanded surrender and the suspect has complied. Recent Supreme Court cases in which the “seizures” of persons have been at issue raise significant questions regarding the correctness of the constructive entry approach.

For example, in Brower v. County of Inyo, the Court described a fourth amendment seizure of a person as occurring “…only when there is a governmental termination of freedom of movement through means intentionally applied.”(27) Subsequently, in California v. Hodari D.,(28) the Court held that “an arrest requires either physical force…or, where that is absent, submission to the assertion of authority”(29) and rejected the defense argument that a mere “show of authority” is sufficient.

The “constructive” entry theory seems to depend in large part on the assumption that verbal commands by police, spoken from outside a residence, are tantamount to the physical crossing of the threshold so that if the suspect complies by surrendering, the seizure may be said to have occurred inside. However, if a “seizure” of the person can occur while the suspect is inside his home and the police are still outside, it is still debateable whether an entry of the type that Payton and Steagald were designed to control has occurred.

CONCLUSION

The Supreme Court’s decisions in Payton and Steagald represent a logical extension of the traditional requirement for judicial approval before the forces of government can intrude into the private domain of one’s dwelling. Absent emergency circumstances or consent, an arrest warrant is required to enter the residence of the suspect to effect the resident’s arrest, while a search warrant is necessary to justify an entry into a third party’s residence. Because there is no warrant requirement for making felony arrests in public places, law enforcement officers are free to devise arrest plans aimed at avoiding entries into private dwellings, and thereby, avoiding the need to acquire warrants.

In devising such plans, however, officers must be aware that legal risks may yet arise, even though no actual, physical entry into a residence occurs, and should understand that steps can be taken to minimize those risks. For example, one obvious way to avoid an actual entry into a dwelling is to wait until the suspect exits. Because that may not always be a practicable option, there should be relatively little risk of knocking on the suspect’s door and awaiting a response. If the suspect opens the door under these circumstances, the cases indicate that there should be no problem in announcing the arrest. If someone other than the suspect answers the door, there is no legal risk in asking that person to request that the suspect come to the door.

As the cases illustrate, the most risky tactic is to demand that the suspect either come to the door or come outside. Although the law is still unsettled in this area, there is a significant risk that a court will view such action as a “constructive entry” into the residence, even though a physical entry was avoided.

Endnotes:

(1.) 423 U.S. 411 (1976), (2.) 445 U.S. 573 (1980), (3.) 451 U.S. 204 (1981), (4.) 495 U.S. 14 (1990), (5.) The New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993, (6). 427 U.S. 38 (1976). See also United States v. Sewell, 942 F.2d 1209 (7th Cir.), cert. denied, 112 S. Ct. 1567 (1992), (7.) Id., (8.) Oliver v. United States, 466 U.S. 170 (1984), (9.) See, e.g., United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981); and United States v. Bustamente-Saenz, 894 F.2d 114 (5th Cir. 1990), (10.) Kirkpatrick v. Butler, 870 F.2d 276 (5th Cir.), cert. denied, 493 U.S. 1051 (1990), (11.) See, e.g., United States v. Barrios-Moriera, 872 F.2d 12 (2d Cir.), cert. denied, 493 U.S. 953 (1989); and United States v. Nohara, 3 F.3d 1239 (9th Cir. 1993), (12.) Duncan v. Storie, 869 F.2d 1100 (8th Cir.), cert. denied, 110 S.Ct. 152 (1989); United States v. Carrion, 809 F.2d 1120 (5th Cir. 1987); United States v. Whitten, 706 F.2d 1000 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984); United States v. Burns, 624 F.2d 95 (10th Cir.), cert. denied, 449 U.S. 954 (1980), (13.) 809 F.2d 1120 (5th Cir. 1987), (14.) 809 F.2d, at 1128, (15.) State v. Johnson, 501 N.W.2d 876 (Wisc. App. 1993). See also State v. Holeman, 693 P.2d 89 (Wash. 1985), (The court held that it depends on where the arrestee is located, and not on the location of the police, and concluded that “police are prohibited from arresting a suspect while the suspect is standing in the doorway of his house” even if “the police never crossed the threshold.”), (16.) 501 N.W.2d, at 879, (17.) Frazier v. Cupp, 394 U.S. 731 (1969), (18.) LaFave, Search and Seizure: A Treatise on the Fourth Amendment, vol. 2, 590 (2d ed. 1987), (19.) 743 F.2d 1158 (6th Cir. 1984), cert. denied, 471 U.S. 1061 (1985); and United States v. McCraw, 920 F.2d 224 (4th Cir. 1991), (20.) 743 F. 2d, at 1166, (21.) Id., (22.) See also United States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980), aff’d., 457 U.S. 537 (1982), (23.) 726 F.2d 1183 (7th Cir. 1984), (24.) 726 F.2d, at 1188, (25.) 791 F.2d 1512 (11th Cir. 1986), (26.) See, e.g., United States v. Al Azzawy, 784 F.2d 890 (9th Cir.), cert. denied, 476 U.S. 1144 (1986); United States v. Morgan, 743 F.2d 1158 (6th Cir. 1984), cert. denied, 471 U.S. 1061 (1985); United States v. Davis, 785 F.2d 610 (8th Cir. 1986); and United States v. Johnson. 626 F.2d 753 (9th Cir. 1980), aff’d., 457 U.S. 537 (1982), (27.) 486 U.S. 593, at 597 (1989), (28.) 499 U.S. 621 (1991), (29.) 499 U.S., at 625.

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail–its roof may shake–the wind may blow through it–the storm may enter–the rain may enter–but the King of England cannot enter–all his force dares not cross the threshold of the ruined tenement.”

Statement by British statesman, William Pitt (Lord Chatham), to the House of Commons in 1763.

“In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”

Payton v. New York, 445 U.S. 573, 590 (1980).

Special Agent John C. Hall is a legal instructor at the FBI Academy.
COPYRIGHT 1994 Federal Bureau of Investigation
COPYRIGHT 2004 Gale Group
Bibliography for: “Entering premises to arrest; the threshold question – includes related articles”

John C. Hall “Entering premises to arrest; the threshold question – includes related articles”. FBI Law Enforcement Bulletin,The. FindArticles.com. 23 Nov, 2011.
COPYRIGHT 1994 Federal Bureau of Investigation
COPYRIGHT 2004 Gale Group

Read more

Busted! Two New Fed GPS Trackers Found on SUV

A week later when he was back in San Jose, he checked the device, and it appeared to have been repositioned slightly on the vehicle to make it less visible. It was placed on the underside of the car in the wheel well that holds a spare tire.

Greg, a Hispanic American who lives in San Jose at the home of his girlfriend’s parents, contacted Wired after reading a story published last year about an Arab-American citizen named Yasir Afifi who found a tracking device on his car. Greg wanted to know what he should do with the device.

Afifi believed he was being tracked by authorities for six months before a mechanic discovered the device on his car when he took it into a garage for an oil change. He apparently came under surveillance after the FBI received a vague tip from someone who said Afifi might be a threat to national security. Afifi has filed a suit against the government, asserting that authorities violated his civil liberties by placing the device on his vehicle without a warrant and without suspicion of a crime. His attorney, Zahra Billoo, told Wired this week that she’s requested a stay in her client’s case, pending a ruling by the Supreme Court in the GPS tracking case now before it.

Greg’s surveillance appears to involve different circumstances. It most likely involves a criminal drug investigation centered around his cousin, a Mexican citizen who fled across the border to that country a year ago and may have been involved in the drug trade as a dealer.

“He took off. I think he was fleeing. I think he committed a crime,” Greg told Wired.com, asserting that he himself is not involved in drugs.

Greg says he bought the SUV from his cousin in June, paying cash for it to a family member. He examined the car at the time and found no tracking device on it. A month later, he drove his cousin’s wife to Tijuana. Greg says he remained in Mexico a couple of days before returning to the U.S.

The first GPS tracker, out of its sleeve. Photo courtesy of Greg. View here

It’s possible the surveillance began shortly after his return, but Greg discovered the device only about three weeks ago during his visit to Modesto. The device was slipped into a sleeve that contained small magnets to affix it to the car.

On Tuesday, Nov. 1, Wired photographer Jon Snyder went to San Jose to photograph the device. The next day, two males and one female appeared suddenly at the business where Greg’s girlfriend works, driving a Crown Victoria with tinted windows. A witness reported to Greg that one of the men jumped out of the car, bent under the front of the girlfriend’s car for a few seconds, then jumped back into the Crown Victoria and drove off. Wired was unable to confirm the story.

The following day, Greg noticed that the GPS tracker on his own car had been replaced with a different tracker, this one encased in a clam shell cover attached to a large round magnet to hold the device to the car. The device was attached to a 3.6 VDC Lithium Polymer rechargeable battery.

There was no writing on the tracker to identify its maker, but a label on the battery indicated that it’s sold by a small firm in Farmingdale, New York, called Revanche. A notice on a government web site last June indicates that it was seeking 500 of the batteries and 250 battery chargers for the Drug Enforcement Administration. A separate notice on the same site in 2008 refers to a contract for what appears to be a similar Revanche battery. The notice indicates the batteries work with GPS devices made by Nextel and Sendum.

A spokeswoman with the DEA’s office in San Francisco, however, declined to say if the device on Greg’s vehicle was theirs.

“We cannot comment on our means or methods that we use, so I cannot provide you with any additional information,” said DEA spokeswoman Casey McEnry.

Second GPS tracker with clam shell casing and Lithium Polymer battery.
Photo: Jon Snyder/Wired.com View here

The second device on Greg’s vehicle appears to be a Sendum PT200 GPS tracker with the factory battery swapped out and replaced with the Revanche battery. The Sendum GPS tracker is marketed to private investigators, law enforcement and transportation security managers and sells for about $430 without the battery. With the factory battery “it will last 7-15 days reporting every hour in a good cellular coverage zone,” according to marketing literature describing it, and it uses CDMA cellular communications and gpsOne location services to determine its location.

When this reporter drove down to meet Greg and photograph the second tracker with photographer Snyder, three police cars appeared at the location that had been pre-arranged with Greg, at various points driving directly behind me without making any verbal contact before leaving.

After moving the photo shoot to a Rotten Robbie gas station a mile away from the first location, another police car showed up. In this case, the officer entered the station smiling at me and turned his car around to face the direction of Greg’s car, a couple hundred yards away. He remained there while the device was photographed. A passenger in the police car, dressed in civilian clothes, stepped out of the vehicle to fill a gas container, then the two left shortly before the photo shoot was completed.

The Obama administration will be defending the warrantless use of such trackers in front of the Supreme Court on Tuesday morning. The administration, which is attempting to overturn a lower court ruling that threw out a drug dealer’s conviction over the warrantless use of a tracker, argues that citizens have no expectation of privacy when it comes to their movements in public so officers don’t need to get a warrant to use such devices.

It’s unclear if authorities obtained a warrant to track Greg’s vehicle. While Greg says he’s committed no crimes and has nothing to hide, the not-so-stealthy police maneuver at his girlfriend’s place of employment makes it look to others like she’s involved in something nefarious, he says. That concerns him.

It concerns attorney Billoo as well.

“For a lot of us, it’s like, Well I’m not selling cocaine, so let them put a tracking device on the car of [a suspect] who is selling cocaine,” Billoo says. “And I’m not a terrorist, so let them put the device on someone [suspected of being] a terrorist. But it shouldn’t be unchecked authority on the part of police officers. If law enforcement doesn’t care to have their authority checked, then we’re in a lot of trouble.”

Read more

N.J. Supreme Court: Are IMs Sent From Minor to Adults Admissible?

The Supreme Court of New Jersey is considering whether a man convicted of sexually assaulting his girlfriend’s daughter should have been allowed to introduce sexually explicit instant messages that the girl sent to other men.

In State v. J.A.C., A-102-10, argued Nov. 16, the defense claimed the IMs were relevant to the alleged victim’s credibility, since she first brought the allegation against the defendant after her mother discovered them.

The defendant, identified as J.A.C., began dating the girl’s mother, “Carol,” in December 1998 and would take care of the girl, identified as C.A., while Carol worked nights as a bartender. She and J.A.C. broke up in 2001 when J.A.C. met another woman.

In March 2003, Carol discovered sexually explicit instant messages on C.A.’s computer and questioned her about them. Carol began discussing the possibility of sending her daughter to live with her father in Indiana, an option the girl strenuously objected to.

When C.A. was asked whether anyone had ever touched her inappropriately, she said J.A.C. had done so in 2000, when she was 9 years old, and on at least one other occasion while she was at her computer. She also said he exposed himself to her twice. J.A.C. denied the allegations.

Warren County, N.J., Superior Court Judge John Pursel initially denied J.A.C.’s request to introduce the IMs, by which C.A. had been in contact with 16 men. He said they amounted to evidence of sexual conduct and thus were inadmissible under the Rape Shield Law, N.J.S.A. 2C:14-7f.

Pursel later amended his decision and allowed the defense to refer to the IMs’ existence but said the defense could refer to only seven of the 16 men.

He later admitted into evidence one IM, in which C.A. referred to masturbation, after the state said it planned to introduce evidence that she had been vaginally penetrated.

The jury convicted J.A.C. of multiple counts of sexual assault, and the Appellate Division upheld his conviction and 20-year sentence.

At last week’s arguments, J.A.C.’s attorney, Assistant Deputy Public Defender Michael Jones, told the Court that C.A. invented the story to get herself off the hook with her mother about the IMs.

“C.A. got caught sending IMs to adult males and invented at that time a story that inculpated my client,” Jones said, adding that Pursel abused his discretion in not allowing the introduction of the IMs to impeach credibility.

Justice Barry Albin asked what the jurors knew. Jones said the jury was told only that sexually explicit IMs were sent to several other men.

Justice Anne Patterson asked if it mattered that C.A. was 12 years old at the time.

“The jury would infer that she was in great trouble with the parent,” Jones replied.

Albin asked whether the IMs were so bad in nature that C.A. invented the story about J.A.C. “out of desperation.”

“Precisely. That’s exactly it,” Jones said. “The whole idea of confrontation in the jury system is that the jury gets to hear all the facts.”

But Albin also said the IMs could be used as a form of “character assassination.”

Jones said he understood that, but added that the IMs “develop a full picture … of who the complainant is. That’s very important.”

Patterson noted the Rape Shield Law was designed to protect victims from having certain information about them relayed to the jury. “This was the type of information the Legislature was trying to protect,” she said.

Jones disagreed. “The Rape Shield Law was designed to stop foraging for character information about the victim,” he said. “This was not unscrupulous foraging.”

Deputy Attorney General Mary McAnally said Pursel made the correct decision about the IMs.

“The content of the IMs constituted sexual conduct and are inadmissible under the Rape Shield Law,” McAnally said. “They were properly excluded.”

Albin asked whether they should have been admitted in order for J.A.C. to receive a fair trial and to satisfy the requirement that he be allowed to confront his accuser.

“The jury was not entitled to see them,” McAnally replied. “The jury heard that the victim engaged in explicit communications with 16 men and that the language was shocking.

“All of that exceeded the trial court’s order limiting the testimony to conversations with six men,” she said. “The jury certainly got the point.”

Read more

How Did They Get His Sperm?

A man says he fathered twins “without his knowledge, much less his consent” when a fertility clinic got his sperm from a woman who claimed to be his wife and used it to impregnate her in 2007.

Joe Pressil, of New York state, sued Houston-based Omni-Med Laboratories and Advanced Fertility CTR-Texas in Harris County Court.

Pressil does not describe how the woman got his sperm without his consent or knowledge, but apparently does not contest that it was indeed his sperm.

“Plaintiff, Joe Pressil (‘Pressil’), suffered mental and economic injuries when defendants obtained his sperm without his consent or knowledge and in vitro fertilized a woman purporting to be his wife when she, in fact, was not,” the complaint states.

Pressil says that in February 2011 he found a receipt from Omni-Med for the cryopreservation of a sperm sample. The complaint does not state where he found the 3-to-4-year-old receipt.

“Pressil was listed as the ‘patient’ on the receipt even though he had never been to Omni-Med nor ever sought treatment for male infertility,” the complaint states. “Pressil immediately called Omni-Med and was referred to Advanced Fertility, the clinic who ordered the cryopreservation. Likewise, Pressil had never been a patient at Advanced Fertility.”

Pressil says he called Advanced Fertility immediately and was told they could not talk discuss details on the phone, so he went to their clinic.

“Advanced Fertility told Pressil they obtained his sperm sample from a woman purporting to be his wife, even though Pressil was not married, and in 2007 performed in vitro fertilization which resulted in the birth of twins. Advanced Fertility impregnated the woman with Pressil’s sperm without his knowledge, much less his consent.

“Advanced Fertility’s website ‘strongly encourages’ both partners to take part in an initial consultation, though Pressil was never consulted. Pressil first discovered his children were born through in vitro fertilization in February of 2011.”

Pressil says Omni-Med to this day is keeping a sample of his sperm without his consent.

“Due to the unexpected birth of his children caused by defendants, Pressil suffered severe mental anguish and incurred economic harm due to substantial child support payments,” he says.

He seeks damages from Omni-Med and Advanced Fertility for negligence, conversion (of his sperm), conspiracy and violations of the Texas Theft Liability Act.

He is represented by Jason Gibson. Read more

Read more

Exclusive: CIA Spies Caught, Fear Execution in Middle East

In a significant failure for the United States in the Mideast, more than a dozen spies working for the CIA in Iran and Lebanon have been caught and the U.S. government fears they will be or have been executed, according to four current and former U.S. officials with connections to the intelligence community.

The spies were paid informants recruited by the CIA for two distinct espionage rings targeting Iran and the Beirut-based Hezbollah organization, considered by the U.S. to be a terror group backed by Iran.

“Espionage is a risky business,” a U.S. official briefed on the developments told ABC News, confirming the loss of the unspecified number of spies over the last six months.

“Many risks lead to wins, but some result in occasional setbacks,” the official said.

Robert Baer, a former senior CIA officer who worked against Hezbollah while stationed in Beirut in the 1980′s, said Hezbollah typically executes individuals suspected of or caught spying.

“If they were genuine spies, spying against Hezbollah, I don’t think we’ll ever see them again,” he said. “These guys are very, very vicious and unforgiving.”

Other current and former officials said the discovery of the two U.S. spy rings occurred separately, but amounted to a setback of significant proportions in efforts to track the activities of the Iranian nuclear program and the intentions of Hezbollah against Israel.

“Remember, this group was responsible for killing more Americans than any other terrorist group before 9/11,” said a U.S. official. Attacks on the U.S. embassy and Marine barracks in Beirut in 1983 killed more than 300 people, including almost 260 Americans.

The U.S. official, speaking for the record but without attribution, gave grudging credit to the efforts of Iran and Hezbollah to detect and expose U.S. and Israeli espionage.

“Collecting sensitive information on adversaries who are aggressively trying to uncover spies in their midst will always be fraught with risk,” said the U.S. official briefed on the spy ring bust.

But others inside the American intelligence community say sloppy “tradecraft” — the method of covert operations — by the CIA is also to blame for the disruption of the vital spy networks.

In Beirut, two Hezbollah double agents pretended to go to work for the CIA. Hezbollah then learned of the restaurant where multiple CIA officers were meeting with several agents, according to the four current and former officials briefed on the case. The CIA used the codeword “PIZZA” when discussing where to meet with the agents, according to U.S. officials. Two former officials describe the location as a Beirut Pizza Hut. A current US official denied that CIA officers met their agents at Pizza Hut.

From there, Hezbollah’s internal security arm identified at least a dozen informants, and the identities of several CIA case officers.

Hezbollah then began to “roll up” much of the CIA’s network against the terror group, the officials said.

One former senior intelligence official told ABC News that CIA officers ignored warnings that the operation could be compromised by using the same location for meetings with multiple assets.

“We were lazy and the CIA is now flying blind against Hezbollah,” the former official said.