Month: December 2017





Unwelcome to me

The too bright light from

From across the street.

Spilling in, over the sill, onto


The undusted dresser,

The bedposts of an empty bed,

Blankets and rumpled sheets cast aside,

The door half closed as if she still slept there.


I wish to be left to my dreams.

And random memories of

Departed friends, scattered family,

The despair of lost security.


As another final morning dawns

The light through my window dims,

No match for this sky, gray like new steel,

The clouds at end on the far horizon.


Now awake, the Neighbor I see is only me

Reflected back on my window.

He naps fitfully in his last comfortable chair;

He will leave the light on again all day.








The Diner

The Diner

At the Diner


He took a seat at the counter.  The café was a nice place.   Not too clean, but home like.  Comfortable.  The food should be good.


The waitress sat on a stool at the other end of the counter within arm’s reach of the cash register.  She was bent over a magazine, her chin resting in the palm of her hand.


The light made her seem old, otherworldly old, like she had already crossed over whatever barrier exists between the natural world and what lies beyond.  The light in the diner was too bright he thought, but on the other hand he could see everything. He examined the flaws, the peeling paint, the mismatched colors where a hole had been patched over and even a little beauty where it existed.  Like in the beer sign with its neon deco waterfall.  The sparkles and moving colors in the waterfall, now that was pretty.


He decided he liked all the light.  He had been too many places, been in too many rooms where the lack of symmetry was hidden in shadows, where the true appearance of worn and broken tables and chairs and couches, all the dangerous jagged edges was concealed in the dark places where the eye, keen or opaque with cataracts, could not penetrate.


He sat for a few minutes perusing the menu that had been propped up between the aluminum napkin holder and half empty salt and pepper shakers.  The shakers were glass with little bumps on the sides and matching silver tops.


The waitress made no move to leave her stool and walk the half dozen steps it would take to stand before him and solicit his order.  That was okay with him.  He looked up and waggled the menu unconsciously in his hands as he re-inspected the interior of the diner.


No one else was at the counter and only one of the booths was occupied.  An older couple sat there, across from each other, eating their food slowly, taking one bite at a time and chewing thoroughly before swallowing.  They never looked at each other.  They didn’t speak.  There was no newspaper, no electronic device in front of them either.  They were occupied with nothing but the laborious mastication of their meal.


He leaned the menu back against the napkin holder and crossed his hands like he did as a small, good little boy back in grammar school.  The waitress got off her stool and while still reading her article smoothed out her skirt in preparation for the short walk to his place.  The skirt was badly wrinkled.  It fit her loosely.


She placed her magazine down on the counter and took a last sip of her coffee, cold the way she liked it.  As she approached him she pulled out her order book and flipped over the cover and the first few pages.  She pulled a pen that had been lodged over her ear and without ever once looking directly at him asked, “What’s your pleasure, Mister?”


“Oh, many things”, he replied with a smile.  He thought his remark clever if a little flirtatious.  Not too flirtatious.  A man could get in trouble for that nowadays.


She waited.  She never replied at all.  She didn’t smile nor did she frown.  He guessed she wasn’t in the mood to flirt.  Maybe the light made him look less than handsome.  He looked in the mirrored backsplash behind the row of dishes and glasses on the shelves.  He considered himself handsome, but he had to admit the light didn’t set him off to his best advantage. He looked too pale.  He hoped she wasn’t mad about his remark.


“So, what would you recommend, uh,” and he looked at her nametag above her breast, “May?”


She didn’t reply but pointed to a chalk board leaned against the cash register.  Across the top in large hand drawn script was the word “Specials”. Below it listed in the same scrawl preceded by a number were five food choices with the price to the side.  He perused the list.


“The Meatloaf?  How’s the meatloaf?”


She shrugged.


He said, “My mother used to make the best meatloaf.  Bless her heart.  She did it for my dad, before he passed away, Rest in Peace.”


He waited.  She didn’t reply.  She didn’t look up.  She kept waiting with her pen poised over the order book.


He said, “She always said meatloaf was perfect for a nice comforting meal.  Nourishing and stick to your ribs.  Well, she was always saying something like that.  Rest in Peace.”


The waitress’s mouth opened slightly but only to take in a breath. She breathed in through her nose and it came out a snort.  He thought she must have a sinus problem.


“Anyway, I always hated having to eat that meatloaf.  Don’t get me wrong.  It was the best meatloaf you could hope for, but you can have too much of a good thing, you know?  Meatloaf six days a week is way too much. That will drive you crazy.  I mean after a week and somebody puts a plate of meatloaf down in front of you, you want to kill them.  Just shoot them in the head, or cut their throat, and then take the plate and push it in their face.”


The waitress looked directly at him at that.  For the first time.  A confused wrinkle came across her brow.  That at least had piqued her interest, he thought.  Talking about killing someone always did that.


“Well, she’s gone now,” he said.  “And I don’t eat meatloaf anymore.  Not that I don’t believe there is not just as good meatloaf out there as she made, I just don’t have to eat meatloaf anymore and so I don’t.  I do what I want now.”


The waitress nodded her head up and down slightly but then looked back down at her pad.  She was losing interest again.


“Do you think it is important to do what you want?  I do.  Just live my own life the way I want.  Sometimes it interferes with what other people want, but that really is not my problem, you know?”


No reply.  She was now even more bored than before he thought.


He heard a noise behind him.  He slowly swirled on his stool to see that the man had eased himself out of his booth and stood there waiting for his wife who was still chewing on her last bite.  He figured from the look on the man’s face he had been listening to him.  At least he was interested even if the waitress was not.


“How about you, Mister?” he said to the old man. “You think a fella should be able to just do what he wants?  Think a guy ’s entitled to do that?”


The man was a little shocked at being addressed.  He glanced back at his wife who was chewing no longer.  She appeared as confused as he did.   They weren’t used to having strangers address them.


“Well, I don’t know, sir.  I guess as long as it don’t hurt someone else, it’s okay,” the old man said.


“Hurt somebody?  Who?”  The man’s tone got the waitress’ attention.  It was challenging, belligerent.


“Okay.  Well, what would you like to order?”  She hoped her question would divert attention away from the old couple.


“No.  I want to know what he meant by that,” the man said.  “Who, pops, who you think I’m going to hurt by just doing what I feel like, huh?”


“Uh, I didn’t mean anything by that, Mister.  Just answering your question, you know.  Well, we have to go, the Missus and I, getting late for us.”


The old man smiled and put his hand under his wife’s elbow to escort her out of the diner.


“Well, let’s just hold on.  I don’t know why I have to worry about hurting someone if all I’m doing is what I want.”  His hand went inside his coat.  He brought out a knife.  It was large, but folded up.  He pushed a button on the side.  It unfolded with a snap.  The blade shined in the bright light in the diner.  The point was very sharp.


The old man backed up. His wife had already moved all the way to the end of the counter.  Problem was there was no exit in that direction. The man with the knife sat at the counter between them and the front door.


The waitress had also retreated, but she wisely took a few steps in the direction of the front door.  She tried again to distract the man.


“Okay, Mister.  How about putting the knife away? You are scaring the customers.”


“But you see, I want this knife right where it is.  I do what I want now.  I don’t eat meatloaf and I do what I want.  And I like this knife where it is.”


He stood up from the stool.  He blinked once, then twice, and looked up in to the glare coming from the overhead lights.  He glanced in the mirror.  He still looked too pale.  The knife was held in his right hand, straight down toward the floor.  He turned toward the old man who had caught up with his wife. They were both huddled up against the far wall beyond the cash register and just outside a door with a restroom sign over the top.


The man walked toward them.  The old woman grabbed her husband’s arm and pulled him. They both went into the restroom with the woman’s symbol on the front.  The door closed behind them.  He heard a click.  They have locked the door.  As if that could do them any good.


The man turned toward the waitress.  She didn’t waste any time and scrambled through the swinging silver doors into the kitchen.


“Shssh!  Come on.”  He could hear her say to someone in the kitchen and then he heard a door being opened and slammed shut.


The man walked to the end of the counter.  He stared for a moment at the door to the women’s restroom.  He then leaned over the counter and pushed a button on the cash register. There was a ding and the drawer came open.  He pulled it the rest of the way open and reached in with his left hand and removed the cash.  He stuffed the money in his coat pocket. He slammed the drawer shut. He twirled the knife in his right hand.  He was deft with the knife.  He knew a lot of fancy moves.  He looked at his self in the mirror and smiled.  He looked better out of the direct light.  He took a step toward the restroom door when a siren sounded in the distance.


He stopped for a second listening.  He smiled again.  He then turned and walked out of the diner.





A man was suspected of masterminding a series of robberies. He was apprehended and convicted. On appeal he alleged the police violated his rights when they recorded his movements and locations by accessing cell phone data from his service provider. In November, that case argued before the United States Supreme Court. A decision is pending.


Fifteen years ago, a police officer wanted to know where a suspected drug dealer was going. He surreptitiously placed a GPS device on the undercarriage of the man’s car and remotely monitored his travels. He was caught and convicted. He also alleged his rights were violated and appealed the case to the Supreme Court. The Supreme Court agreed and reversed his conviction.


Are the cases similar? Sure. Well, except for the technology.


Will the cases be decided the same? Being a true lawyer, I will answer like a lawyer does. “Well, maybe, but not necessarily.”


The Fourth Amendment states, “the right of the people to be secure in their persons, houses, papers, and EFFECTS, against unreasonable searches and seizures, shall not be violated.” (emphasis added.)


In United States vs. Jones, decided in 2012 the justices of the Supreme Court decided the car owner’s Fourth Amendment rights had indeed been violated by the attachment of the GPS device to the man’s car. What makes the case interesting and what it may portend for the pending decision concerning cell phones is the majority opinion penned by Justice Scalia.


Because though all the justices agreed on the outcome, they didn’t all agree on why or how they arrived at their conclusion. And Justice’s Scalia’s opinion drew the ire of other members of the court. Though he focused on the original meaning of the Fourth Amendment, ironically some of the justices considered his approach novel.


Two intellectual tracks are at play here. One is the jurisprudence that has grown up around the Fourth Amendment since the landmark case of Katz v. United States decided in 1967. In that case the government placed a listening device on the outside of a telephone booth. (For you oldsters out there, I show my students pictures of telephone booths since many of them have never seen one!).


In the Katz case a concurring opinion established a test later decisions of the Supreme Court made the standard. It held that the person inside the phone booth had a “reasonable expectation of privacy” and the listening in by the police was a search and was illegal.


Not to overly simplify, but the term ”reasonable expectation of privacy” became the jumping off point for 50 years of litigation afterwards.


What Justice Scalia opinion in the Jones case did and which other justices found objectionable was to depart from the “reasonable expectation of privacy” test and go back to the Fourth Amendment’s language and consider the matter from a “property” viewpoint? After all it does say, “persons, property, papers and effects.” 75% of that phrase refers to property.


In referring to the English antecedents to the Fourth Amendment he cited Lord Camden who once said, “Our law holds the property of every man so sacred, that no man can set his foot upon his neighbor’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbor’s ground, he must justify it by law.”


Justice Scalia went on to discuss the “close connection” of the Fourth Amendment to property rights. He points out if that were not the case the words “Persons, houses, papers and effects,” would have been superfluous. The drafters of the Constitution were master wordsmiths. One thing they didn’t do was use superfluous language.


Justice Scalia, in the Jones case, held the automobile was an “effect” and the government’s attachment of a monitoring device to its undercarriage was an illegal search. It cannot be gainsaid that the other justices engaged in an attenuated argument to say that one has a “reasonable expectation of privacy” in the undercarriage of a car. It’s open to the road and accessible to any mechanic or member of the public who cares to bend over enough to observe its contours or walk by it while it is up on a rack for an oil change. However, when you consider the protection afforded the Fourth Amendment from a property perspective, the argument that there was an illegal search is stronger. Being an “effect”, like Justice Scalia stated, the car is protected by the Fourth Amendment and the Government would need a warrant supported by probable cause and signed by a neutral magistrate before attaching their tracking device.


Now we return to the pending decision concerning cell phones. The argument that we reasonably expect to keep the information on our cell phones private is problematical. Departing from my lawyer language, it really doesn’t hold water.


Every person with a modicum of intelligence knows the information on a cell phone is shared with hundreds if not thousands of people. If it’s out there on the Cloud, how can we say we have an expectation of privacy?   And in fact the Government in the pending case is arguing that sharing the information with the operators of the servers shows it is not expected to be kept private. One can persuasively argue that Privacy as we understand it, at least in this context is a dead concept anyway.   Just consider how much of your activity online is tracked by public and private interests. It’s why when you look on Amazon for a car cover, you all of a sudden begin receiving advertisements on Facebook about car covers.


The more logical argument to make on the pending case is to say cell phones are property: they are our “effects” and the Fourth Amendment protects them against the trespasses of the government.


Justice Scalia is gone now, but it will be interesting if any of the other justices embrace his approach. Given the rapid change in technology. The old tests are going to have to be revised in some fashion.