Thursday, October 28, 2010

Crime Severity Distinctions and the Fourth Amendment

A new article by SMU Professor Jeffrey Bellin was highlighted on Good stuff and ideas.

In this article, Professor Bellin seeks to incorporate crime severity into Fourth Amendment doctrine. Others – as Professor Bellin mentions in the article – have posed theoretical objections to this suggestion. I'll leave that to the others for now, and instead highlight what Professor Bellin says about the application of traditional Fourth Amendment doctrines to emerging technology. He writes:

Traditional Fourth Amendment doctrine performs best when assessing venerable methods of search and seizure – a police officer stops a suspect on a street, pats down his clothes, looks through the suspect's pockets, searches his briefcase and, ultimately, searches his home for items specified in a warrant. These types of searches generally fall within the broad middle ground of a hypothetical invasiveness spectrum – they unambiguously intrude upon an individual's privacy (or mobility), but do so only partially, leaving much of the individual's privacy intact.

The next wave of controversial searches will differ from those traditionally encountered in two important ways. First, the degree of privacy invasion will increase exponentially. The partial privacy invasions of a physical search of a briefcase, car or even a home will appear quaint in comparison to the invasions that can be accomplished with modern technologies. Second, modern technologies will simultaneously enable remarkably unintrusive techniques to gather much of the data that, traditionally, only a more intrusive search would reveal. These opposing facets of technologically-enhanced searches – searches that fall at either extreme of the invasiveness spectrum – will increasingly present difficulties for courts applying traditional doctrine. Crime severity distinctions, while not the entire answer, provide a ready means of alleviating these difficulties.

I agree that traditional doctrines have posed challenges for the courts. Issues such as cell phone searches incident to arrest, warrantless GPS tracking of vehicles, and encryption have been highlighted on this blog.

I remain skeptical, however, that the crime severity analysis is likely to add much to the analysis of discrete searches performed on individual suspects. Instead, I have argued that courts should recognize the expectation of privacy in the contents of electronic devices as reasonable, and impose tighter limits on law enforcement's review of data without a warrant rather than simply applying outdated doctrines. (I have not argued for the limiting of traditional exceptions to the warrant requirement, such as exigent circumstances.)

My initial reaction to Professor Bellin's arguments is that this factor is more appropriately taken into account in evaluating the limits of privacy protections posed by broad scale surveillance and data gathering operations. I reserve the right to be convinced otherwise, however, or to change my mind as I ponder the argument a bit more

Wednesday, October 27, 2010

NPR Covers GPS Story

NPR this morning ran a story about the GPS tracking issue. The story highlighted the case of the college student who discovered an FBI GPS tracking device on his car. I originally wrote about this story here. NPR did another story, but there is no transcript, yet. Audio is here.

I have been posting a lot about this issue recently, as it seems to have caught on in the media. See here and here on the blog, for example. For more details, see here for a draft of an article I am publishing on the topic this winter.

For those who are new to the topic, here is my simplified legal analysis in a nutshell.

Prior Supreme Court cases that allowed the warrantless use of tracking devices were based on the technological limitations of the devices available to at the time. In particular, the devices could only be used to supplement and aid traditional visual surveillance, and were unable to record data on a vehicles movement without human intervention. In this respect, the devices were really only useful to aid investigations into particular suspicions of criminal conduct.

However, GPS devices permit law enforcement to conduct surveillance beyond a targeted investigation into a certain crime. In particular, the devices could permit law enforcement to undertake surveillance of a particular individual over an extended period of time in the hope of piecing together evidence of illegal conduct that was not suspected prior to the surveillance.

The protections provided by the Fourth Amendment, as the Supreme Court has often recognized, must change to meet new technology. Especially where the cases involve sustained and long-term surveillance of a targeted individual unrelated to any particular criminal action, no reasonable person would expect to be the target of such a massive police surveillance operation. Accordingly, because the use of these devices infringes on a legitimate expectation of privacy, the use of these devices constitutes a search which, absent the present of another exception, requires a warrant.


Practical and Legal Issues Surrounding Encryption

I have previously posted on the issue of encryption and passwords.

A commentary in the Electronic Frontier Foundation raises some practical issues with allowing government access to encryption keys. I don't know enough about the business side of the issue to assess whether these are accurate or exaggerated. The commentary raises some legal issues, however:

The details of how a cryptography regulation or mandate will be unconstitutional may vary, but there are serious problems with nearly every iteration of a "no encryption allowed" proposal that we've seen so far. Some likely problems:

•The First Amendment would likely be violated by a ban on all fully encrypted speech.

•The First Amendment would likely not allow a ban of any software that can allow untappable secrecy. Software is speech, after all, and this is one of the key ways we defeated this bad idea last time.

•The Fourth Amendment would not allow requiring disclosure of a key to the backdoor into our houses so the government can read our "papers" in advance of a showing of probable cause, and our digital communications shouldn't be treated any differently.

•The Fifth Amendment would be implicated by required disclosure of a private papers and the forced utterance of incriminating testimony.

•Right to privacy. Both the right to be left alone and informational privacy rights would be implicated.

It is hard to assess the arguments without seeing the full proposal from the government. And I think a complete ban on encryption is not likely. In my view, the most significant issues that will face courts in the coming years:

  1. Does encryption evidence a reasonable expectation of privacy, such that the government would need a warrant to obtain a key. The alternative is that the government could try to obtain encryption keys through simply issuing a subpoena without any judicial or outside review. My initial answer seems to be "yes."


  2. Does the Fifth Amendment protect someone from disclosing an encryption key? My initial answer seems to be "no." Providing an encryption key may be like providing fingerprints, DNA, or the key to a locked box. My initial thoughts are here.

Article by Attorney on GPS Tracking Conflict

A California attorney, Neil Shapiro, has written an article in the Monterey Herald about the conflicting Circuit Court decisions on GPS tracking.

See here and here on the blog and here for a draft of an article I am publishing on the topic this winter. Shapiro suggests that if the Supreme Court takes up the issue, the Court is likely to extend the precedent of Knotts and allow warrantless GPS tracking. Predicting what the Court will do with a case like this is especially tricky, since the typical liberal-conservative divide on the Court seems to break down in some Fourth Amendment cases.


Monday, October 25, 2010

Is there a Reasonable Expectation of Privacy in Library Records?

Over at CYB3RCRIM3 blog, Professor Brenner has a nice post up about a recent child pornography case, U.S. v. LaPradd. I recommend it, especially the discussion of Supreme Court doctrine on Fourth Amendment issues.

The opinion contains the detailed facts, but the basic story here is that the defendant was viewing pornography at a library. The staff called the police. The police observed the defendant looking at pornography, but could not determine if it was child pornography. The defendant minimized the browser window on the computer screen before he was approached by the police.

The defendant admitted to the police that he had been viewing child pornography and that he had some images of sexual abuse of children in his possession. While he was being interviewed, other officers viewed the previously minimized browser window, and saw child pornography. Following a consent search, police found pornographic images of minors on the defendant's thumb drive and the library computer.

The interesting Fourth Amendment issue – which Professor Brenner highlights – is whether the defendant had a reasonable expectation of privacy in the contents of the library computer. The court held he did not, and stated, accurately, that courts "around the country have also been reluctant to extend broad Fourth Amendment search protections to computers and computer-generated information located on a computer outside of one's residence or place of work. The court explained:

The computers are located in the lobby of the library and in plain view of the patrons and staff. Indeed, that other patrons saw LaPradd viewing pornographic images indicates just how little privacy is afforded those who use the Art Library's public computers. Additionally, access to the computers appears to be granted at the library staff's discretion, illustrating that LaPradd had ultimately no control over whether he could use the computer, and consequently could not have expected any privacy as to his computer-related activities. Finally, the internet sites to which the computer terminal was connected did not contain personal information relevant to LaPradd, such as an email account; instead they were generally accessible to all with a computer and the internet, and therefore LaPradd had no expectation of privacy in viewing those particular sites.

Professor Brenner believes that "this judge is right, at least in terms of the fact that it was a public computer over which LaPradd had no control and his use of which was exposed to other patrons in the library." I am not quite sure, at least on the broader question of a reasonable expectation of privacy in library records.

I see two reasons to extend an expectation of privacy to the use of computers in libraries, and it may be that privacy of computer use at libraries is one of the rights that may be recognized and permitted by society.

First, an examination of the browser history of a library patron is reasonably likely to lead to the discovery of intimate details about a person, such as the contents of a person's e-mails, documents, and photographs which could provide the police with potentially unlimited information about the user, including medical, legal or financial information or political or religious views.

Second, protecting library information is not too farfetched. The American Library Association has stated that confidentiality should be maintained over "information sought or received, and resources consulted, borrowed, acquired or transmitted" by users. As many recall, the ability of the FBI to obtain library records under the Patriot Act has been a major point of contention.

The facts of this particular case may lead to a different outcome – especially if the defendant consistently allowed other patrons to view his browsing activity – but the broader Fourth Amendment question warrants further thought, I think.


Sunday, October 24, 2010

Another GPS Editorial

The Nashua Telegraph just published an editorial on GPS tracking and whether a person has to return a GPS device placed secretly by the police.

The key lines: "This case underscores – again – the gulf between the impingement on privacy rights new technologies enable, and the distance our laws have yet to cover to bridge this gulf."

See here and here on the blog and here for a draft of an article I am publishing on the topic this winter. As I noted before, I think the warrantless use of GPS tracking devices by law enforcement presents significant Fourth Amendment issues.


Restrictions on Cell Phone Use Imposed on Delinquent Child by California Juvenile Court

A California juvenile court recently imposed probation restrictions on a youth that prohibited him from posting, displaying, or transmitting any gang-related symbols.

An appeals court held that this restriction was overbroad and not reasonably related to the past gang related activity which had brought the juvenile before the court. The court reasoned that this condition unconstitutionally targeted "all forms of interpersonal communication." (The courts concern that the juvenile could "violate the condition . . . . [by] discussing his past gang conduct to develop strategies to avoid future gang involvement" seems a bit 'quaint' to me.)

What is interesting to me is that rather than strike the condition, the appeals court modified it to prohibit transmitting gang-related information or symbols that are posted, displayed, or transmitted on or through his cell phone.

Generally, probation conditions that restrict constitutional rights are permissible if necessary to serve the dual purpose of rehabilitation and public safety. Probation conditions that restrict constitutional rights, however, are subject to a tighter review, and should be narrowly tailored to the specific must be carefully tailored and reasonably related to the compelling state interest in reforming and rehabilitating the defendant. When dealing with juveniles, the court has a bit more leeway. For example, in a case I argued before the Ohio Supreme Court back in 2006, we dealt with the ability of a juvenile court to require a juvenile sex offender to submit to polygraph testing, even when such testing might violate Fifth amendment rights. Faced with these concerns, a divided court held that "evidence must support the use of a polygraph for a particular juvenile before it is a reasonable community-control condition."

In this case, the focus on the use of cell phones raises additional issues. In enforcing this condition, the probation officers will likely be permitted to inspect the juveniles cell phone. I recently posted on a related issue here. The concern with such a condition on this juvenile is the ability of the condition to chill speech protected by the First Amendment that is unrelated to the juveniles past criminal conduct. Information on smart cell phones include personal matters that an individual, even one on probation, has a right to keep secret, and about which an individual has a reasonable expectation of privacy. For example, an examination of the contents of a person's e-mails, text messages, documents, and photographs could provide a probation officer with potentially unlimited information about the probationer, including legal, personal, medical, or financial information or political or religious views.

New York Times Editorial on GPS Tracking

The New York Times has editorialized about warrantless GPS tracking.

I have often suggested that the difference between traditional surveillance and the type of information obtained through GPS tracking is not a difference in degree, but a difference in kind. See here and here on the blog and here for a draft of an article I am publishing on the topic this winter. The editorial takes a similar approach: "Digital technology raises questions about differences between cyberspace and the physical world, which most search-and-seizure laws deal with."


Saturday, October 23, 2010

Cell Phone Search of Probationers?

A defendant who was on juvenile probation has no expectation of privacy in the contents of a cell phone, a court in California has apparently ruled.

According to news reports:

The phone was seized from Blay after he ran from police who cruised into his neighborhood in San Francisco. At the time, Blay was a person of interest in the murder of Tong Van Le four days earlier in Novato. Information derived from the phone apparently helped authorities build their murder case. In a pre-trial hearing Wednesday afternoon before Judge Terrence Boren, one of Blay's defense attorneys, Carl Gonser, said the confiscation of the phone violated Blay's Fourth Amendment protections against unreasonable search and seizure, and that any information derived from it was inadmissible. The prosecution argued that because Blay was on juvenile probation, and thus subject to random searches, police had the right to take the phone and examine it. Boren agreed.

The Supreme Court has previously held that holding that a warrantless search of a probationer's home by a probation officer, conducted pursuant to a valid regulation, was reasonable. This has been extended sometimes to searches of computers. This general rule makes sense, since computer searches or internet monitoring of persons subject to continued court supervision have reduced expectations of privacy. However, in many circumstances the ability to search the contents of computers is a specific condition of probation related to the crime committed.

I suspect that courts will find a similar diminished expectation of privacy in cell phones.

Friday, October 22, 2010

Editorial on GPS Tracking

The Buffalo News has written an editorial on warrantless GPS tracking.

The sub-headline seems to sum up the position pretty well: "Government's capricious use of GPS violates the Fourth Amendment." The editorial goes on to state, "It's not that law enforcement agencies can't use modern technology to snoop on people they believe need to be snooped on. It's just that they should not be allowed to do so without first employing an old-fashioned tool called a search warrant."

Unfortunately, the editorial seems mostly focused on exigent circumstances, such as the ticking time bombs featured on the television show 24. But it seems like most of the warrantless uses of GPS tracking devices are not in extreme time constrained circumstances, but rather as part of a well thought out investigatory strategy. Law enforcement agencies – with the support of some lower courts – believe that no expectation of privacy is violated by using these devices without a warrant on public property.

See here and here on the blog and here for a draft of an article I am publishing on the topic this winter. As I noted before, I think the warrantless use of GPS tracking devices by law enforcement presents significant Fourth Amendment issues.

Thursday, October 21, 2010

Can the Police Invade an Expectation of Privacy at a Gravesite?

An article in the Detroit Free Press suggests a novel Fourth Amendment Issue: is there a reasonable expectation of privacy at a family gravesite? (Credit to Crime and Consequences for bringing this to my attention.)

The defendant is accused of murdering his parents. Apparently, the police planted a listening device at the grave of the parents, and the prosecution wants to introduce evidence obtained from a conversation between the defendant and his brother.

I will leave to other the weight or relevancy of this evidence.

The initial Fourth Amendment view is that there is no expectation of privacy at a public place. And a cemetery is a public place. End of discussion? No. There is an argument that people have an expectation of privacy at funerals and gravesites. This issue arose before the Supreme Court in the recent case involving protesters at military funerals. Some of the amicus briefs suggest that such a right of privacy exists. For example, the amicus brief filed by Senators Reid, McConnell, and other senators suggests that the law has recognized a family's interest in private grieving. In a similar way, a brief from the states suggests that the law had "recognized a right to privacy inherent in funeral proceedings that has deep roots in the common law."

I don't know enough of the facts to give an opinion how this case would come out. But the case remains a good lesson that sometimes Fourth amendment issues are not as simple to resolve as they would initially appear.

A Prosecutors Takes on Cell Phone Searches

A Wisconsin prosecutor has posted an article that contains some criticism of a Wisconsin Supreme Court decision requiring a search warrant before the full contents of a call phone can be inspected.

The prosecutor takes issue with the court's rejection of the claim that exigent circumstances justified the warrantless search of the phone. He writes: "From a prosecutorial perspective this reasoning is flawed since the contents of high tech cell phones can be altered from remote locations and Internet Service Providers can inadvertently remove potential evidence through their normal procedures."

I don't know enough about the ability to recover deleted files from cell phone memories to assess this argument accurately. I also don't know what kind of electronic trail that could be accessible through law enforcement would be left by efforts to modify cell phones remotely. But I think going forward law enforcement will have to make a more substantial argument instead of relying on hypotheticals In order to sustain the exigent circumstances exception.


More on the Geek Squad and Law Enforcement

An interesting follow up to my previous post on expectations of privacy in the names of files. The court case I discussed involved someone who brought their computer (complete with child porn) to Best Buy. He was turned in to the police by the Geek Squad.

An article today in the Atlanta Journal Constitution notes the risk people take in turning over computers to technicians. But it also notes that no law requires technicians to reports suspected illegal content to the police. Also, most company policies would prohibit opening the files to determine whether the suspected files actually does contain illegal content.

I see two response to this issue likely.

First, we may soon start to see more computer technicians provide stronger guarantees of privacy. (I am not saying this is right, it is just how the market will work).

Second, before long we may see legislatures try to create mandatory disclosure laws.

Wednesday, October 20, 2010

Florida Newspaper: “Should authorities need a warrant to put a GPS tracking device on your car?”

The St. Petersburg Times just posted an article entitled "Should authorities need a warrant to put a GPS tracking device on your car?"

The article doesn't break new ground legally, but does contain an interesting discussion of how law enforcement agencies work around different state and federal laws, rules, and standards:

How GPS tracking is used in Florida depends on which agency is using it. Local, state and federal officers follow different rules. According to Florida law, local and state agencies need a judge's approval to use GPS tracking. But the standard they have to meet isn't as high as the standard for obtaining a search warrant. To search someone's home or business, officers must have a reasonable belief that the person committed a crime. To use GPS tracking, they simply must convince a judge that it's "relevant" to their investigation, said University of Florida law professor Michael L. Seigel. "It's a much lower standard," he said. "It's not requiring them to show any suspicion about an individual's guilt." There's also an easy way around state law. Local agencies could just ask the federal government for help. Federal agents don't need a warrant to use GPS tracking devices in Florida, Seigel said. "Everybody's working in a joint task force these days," said Escobar. "They can ask the federal government to do things they can't do in the state system."

I have written a bit on this topic See here on the blog and here for a draft of an article I am publishing on the topic this winter. As I noted before, I think the warrantless use of GPS tracking devices by law enforcement presents significant Fourth Amendment issues.

Search and Seizure Update

Via, I noticed a link to a search and seizure update from the Federal Defender's Office in Oregon.

Interesting to note that searches of cell phones is starting to receive some mention in these updates, although not the major point of emphasis and law I predict it may become in the next few years.

Tuesday, October 19, 2010

Police Obtain Warrant to Search Cell Phone

Previously, I had posted about the police searching the contents of cell phones incident to an arrest.

One of the arguments has been that there is not enough time to obtain a warrant because the data on cell phones is limited and may be lost over time (especially call records).

However, in a recent case the police arrested a suspect on the charge of illegally possessing a gun. The police then OBTAINED A WARRANT FOR THE CONTENTS OF HIS CELL PHONE. The cell phone contained pictures of the defendant appearing to hold the gun.

Monday, October 18, 2010

Can Animal Welfare Justify Exigent Circumstances?

The defendant, Michael Angelo DeMarco, was convicted of cruelty to animals in Connecticut. His case presents an interesting Fourth amendment question about exigent circumstances.

DeMarco bred beagles. Responding to some complaints from neighbors, an officer left a note on DeMarco's door asking him to contact the animal shelter. When DeMarco did not contact the shelter, the officer returned. He saw the original notice still on the door. He also heard barking inside the house and, according to the Court decision, described "a strong, 'horrible odor,' which he described as a "feces smell." The officers decided that the animals in the house might be in danger and need of assistance and decided to conduct a welfare check. Inside, the police found a number of dogs in bad shape, and a house in such disrepair that it had to be condemned. Based on the evidence found in the house, he was charged with animal cruelty.

DeMarco challenged the entry of the police into his home. The police argued that the entry was justified by the exigent circumstances to the warrant requirement.

A brief explanation of exigent circumstances. The presence of exigent circumstances is one of the few occasions when a warrantless entry into property is justified. The Supreme Court has said that exigent circumstances exist when there is a combination of "a compelling need for official action and no time to secure a warrant." One example is the need to prevent the imminent destruction of evidence. Another example is a need to assist persons who are seriously injured or threatened with such injury. In those cases, officers can enter a home without a warrant to provide emergency assistance to an injured occupant or to protect an occupant from imminent injury.

The court held that the exigent circumstances doctrine did not apply in this case for two reasons. First, the court believed that the police had DeMarco's cell phone number available to them at the time they made the decision to enter the defendant's home, and should have attempted to contact him before entering his home. Second, the court believed there were not enough facts to support the police conclusion that exigent circumstances existed. The court said:

Conversely, this case does not present any of the likely indicia of an emergency situation. The police did not respond to the defendant's home as a result of an alarm, there was no evidence that a violent criminal offender might be hiding in the house, no evidence of a break-in and no signs of a struggle or blood or any other indication of a potentially dangerous situation. The justification supporting the emergency exception to the warrant requirement is that there are situations in which the police have to react to save a life, and they simply do not have the time to get a warrant before acting. . . . Indeed, the measured behavior of the police while at the defendant's residence is stark evidence of their awareness that they were not in the midst of an emergency situation. . . . the authorities were at the defendant's home for nearly one hour prior to entering the dwelling.

I think the Court made the wrong decision in this case. The undisputed information available to the officers at the time was that several dogs had been heard barking inside an uninhabited, dirty, house that was in such bad condition it had to be condemned. This is enough to suggest that the dogs were in urgent need of assistance. The police acted prudently in taking a few moments to assess the situation and form a proper response – this does not suggest that there was no emergency. Moreover, the exigent circumstances exception has not been limited to just people or evidence – the welfare of animals is likely also included.


Friday, October 15, 2010

Does Your Expectation of Privacy in Electronic Data Depend on the Name of the File?

A couple of blogs have picked up on the case of Corey Beantee Melton, an Alabama man convicted of possessing child pornography. 2010 Ala. Crim. App. LEXIS 85

Melton took his computer to Best Buy for service. The Geek Squad went to work and found a virus. They also found "several file tags or filenames of a very explicit nature that indicated that the files might contain child pornography." (The Court opinion spares us the exact titles.) The Geek Squad contacted the police, and together the police and the Geek Squad viewed a video that appeared to depict the sexual abuse of a child. The police then obtained a search warrant for the computer.

The rest is predictable – sexually explicit videos and pictures of minors were found, the defendant unsuccessfully tried various BS stories: they were from a previous computer owner/user, they were pop-ups, they were from a virus, yada, yada, yada. . . I say predictable because I prosecuted a lot of these cases and it always ends the same way: conviction.

A couple of the comments on this case have focused on the wisdom – or lack thereof – of bringing your porn filled computer to Best Buy. The Forbes blog noted the obvious: "if you have a porn habit, it's likely to become public knowledge (and possibly public property) if you seek computer help. And if you have a child porn habit, your computer repair may just lead to prison time." And Switched noted another obvious tip for criminals, "next time you save child pornography on your hard drive, you probably shouldn't save it under a name like 'KiddiePornXXX.' Doing so, it turns out, may give law enforcement officials the green light to search and seize your hard drive."

I have little sympathy for those who possess child pornography, and I certainly don't want to make it easier for them to get away with felonies. But I DO want to highlight an interesting Fourth Amendment aspect of this case.

Melton argued that his Fourth Amendment rights were violated because the police opened files on his computer – something that the Geek Squad had not done – and that the content of these open files formed the basis for the search warrant. The Fourth Amendment question, as the court put it, was whether Melton had a reasonable expectation of privacy in the in the files on his computer after he turned the computer over to members of the Geek Squad, or whether he abandoned that expectation of privacy by turning the machine over to a third party.

The court noted that Melton did not limit the actions of the Geek Squad in any way, nor did he attempt to delete or password protect the files. This is pretty straight forward Fourth Amendment analysis, and the court was likely correct in writing "Because he did not retain a privacy interest in those files, the officers did not violate Fourth Amendment principles when they viewed the contents of any of those files, regardless of whether the officers exceeded the scope of the search conducted by members of the Geek Squad."

However, this case is notable because the court went a bit further. The court suggested that a person does not have a reasonable expectation of privacy in files with names that suggested they contained child pornography. (This is the standard Katz test for the lawyers.) The court's reasoning was based on the significant interest of the state in stopping child pornography.

I think this last section of the opinion is a bit scary. The suggestion that whether an expectation of privacy in electronic data is reasonable can be based on the name of the file doesn't make sense. Rather, the expectation of privacy is based on where the file is stored, who has access to the file, and what steps are taken to restrict access or encrypt the file.

Thursday, October 14, 2010

Can the Government Force You To Provide Your Password?

Earlier I promised a post on whether the Fifth Amendment protects a person from disclosing a password or encryption key to the government.

The Fifth Amendment privilege against self-incrimination protects a person from being compelled to provide a testimonial communication that is incriminating in nature. Even acts that involve an implicit statement of fact, such as admitting that evidence exists, is authentic, or is within a suspect's control are included within the privilege. In contrast, providing fingerprints and blood samples, for example, are not covered by the privilege because they are physical evidence and not an admission .

There is no question that providing a password or an encryption key implicitly communicates that the person with the password or key has access to or possession of electronic files. However, in many cases this evidence is unnecessary. For example, if the police seize (legally) my iPhone from my pocket after they see me texting while driving, the fact that I owned the iPhone can be proven without having to show that I also know the password.

There are a couple of cases on this. In In re: GRAND JURY SUBPOENA TO SEBASTIEN BOUCHER, 2009 U.S. Dist. LEXIS 13006, a defendant faced child pornography charges. The government obtained a warrant to search the defendant's laptop (which had been seized at a border crossing), but could not examine the contents without the defendant's password. The defendant refused a grand jury subpoena to supply the password.

The Court (D. Vermont) held that the suspect had to provide a password because no Fifth Amendment confession was possible "Where the existence and location of the documents are known to the government." In other words, the defendant could be compelled to provide the password because the act of providing the password would not be evidence of possession, control, or authenticity of the electronic files.

In a similar case, UNITED STATES OF AMERICA, v. ABRAHAM PEARSON, 2006 U.S. Dist. LEXIS 32982, a Northern New York District Court considered an FOB request to compel a defendant to provide a password to access to encrypted folder and drives. The FBI told that court that it believed the files contained child pornography. The government argued that providing the password is not incriminating, and therefore, the Defendant has no Fifth Amendment privilege. Like the Boucher court, this court also held that "where the existence, ownership, control, or authenticity of the document (or thing) is a "forgone gone" conclusion," no Fifth Amendment privilege applies. This case does raise the possibility that the password was intended to protect attorney –client communications, which complicates the matter.

The password question, I believe, raises similar issues as cell phones and GPS tracking, and could present another situation where differences in degree become differences in kind. As people store documents in the Cloud, and encrypt e-mails, the possession of a key or password is more likely to show ownership or access to records or websites or communications. This starts to look very different from providing a key to a safe or fingerprints. I look forward to more decisions on this issue.

Wednesday, October 13, 2010

Another Court Suppresses Evidence from a Cell Phone

Another interesting cell phone search decision I am just getting to. (Credit to Fourth Amendment Blog for noticing this decision when it first came out).

Another court has provided some increased protections for the contents of cell phones. The case out of the Federal District Court for the Virgin Islands is United States v Garvey. 2010 U.S. Dist. LEXIS 98527.

In this case, the defendant was one of eight people charged with conspiracy to distribute almost 300 pounds of marijuana. The DEA obtained a warrant to search a co- defendant's home. The list of property to be seized included any cell phones.

When the warrant was executed, the defendant was in the carport. One officer noticed the defendant trying to hide his Blackberry. The police seized the Blackberry, reviewed the contents, and found a picture of a DEA agent's car.

The evidence obtained from the cell phone was suppressed for two reasons. First, simply because the defendant was on property where the police were executing a search, the police did not have the right to seize his property. His presence there was a coincidence, like the presence of a patron in a bar when a warrant at the location is executed. (Ybarra v. Illinois, 444 U.S. 85 (1979).)

Second, and most importantly I believe, the defendant's attempt to hide his cell phone did not provide justification for a seizure of that phone. This was not a case where the police had reason to believe that the phone was a weapon. Even if they were concerned that the phone could be a disguised weapon, that might justify a temporary seizure to ascertain the nature of the device. This would not justify a review of the contents.

The implications of a contrary decision would have been significant. If the court had held that merely attempting to hide a cell phone – when a person is not under arrest – permitted the police to search the contents, then the police could search the contents of a cell phone during a routine traffic stop if, for example, a person tries to conceal a phone.

I think this would be a different case if the police had probable cause to believe that the phone contained evidence of a crime. If that probable cause had been developed before the defendant was encountered, then a warrant could have been obtained at the same time a warrant for the co-defendant's residence was obtained. If probable cause was developed later – and the effort to conceal the phone could be relevant to that probable cause determination – then the officers likely could seize the phone temporarily while a warrant was obtained to prevent the destruction of evidence.

Government Seeks Access to Encrypted Messages

Perhaps I am a bit late in getting to this issue, but it warrants some more highlighting.

Last month the New York Times reported that Federal law enforcement and national security officials want legislation to require all services that enable encrypted communications to be able to comply if served with a wiretap order. In other words, the government wants the ability to intercept and unscramble encrypted messages.

I understand the law enforcement and national security needs here. And if the legislation applies only to messages encrypted by service providers as part of the service – like Blackberry messages – then the Fourth amendment concerns of this action are probably minimal. The bigger issues, it seems, will be technical and expense issues for the providers. I will leave that to the techies.

The real challenge will be if/when the federal government seeks the authority to unscramble messages encrypted by users. I will post later my thoughts on whether the Fifth Amendment protects against providing the password to encrypted files. But at a minimum, when a user takes affirmative steps to encrypt a message or document, and then stores that message or document on the web, a warrant based on probable cause should be necessary for the government to obtain access. By encrypting the message, the user is indicating a subjective expectation of privacy. And I believe that society is willing to recognize that expectation of privacy as reasonable in those circumstances. (Yes, for the lawyers, I am using a basic Katz analysis here).

Tuesday, October 12, 2010

If the cops put a GPS device on your car, do you have to give it back?

How did I miss this the other day? In California, a twenty-year old man found a GPS tracking device on his car. Apparently, it was placed there by the FBI.

Here's the part I like best: the man considered selling the device on Carigslist before two FBI Agents showed up and said, "We're here to recover the device you found on your vehicle. It's federal property. It's an expensive piece, and we need it right now."

Lots of questions. I am not sure how this plays out under California law. Is the device considered abandoned? Wouldn't the FBI asking for it back give up that there is a an investigation going on – as opposed to just a stalker ex-boyfirend/girlfriend? If you found a device like this on your car what would you do (perhaps after calling the bomb squad)?

Supreme Court to Address Fourth Amendment Issues Presented by Child Abuse Interviews

The Supreme Court granted review in three criminal law-related cases. One in particular has caught my eye. Here is the summary from our friends at SCOTUSBLOG:

A deputy sheriff and a state social caseworker took the issue of child interviews to the Court in a pair of cases, Camreta v. Greene, et al. (09-1454) and Alford v. Greene, et al. (09-1478); the Court consolidated the cases for one hour of oral argument, probably in January or February.  The appeals argue that, because the details of child sex abuse are known only to the victim and the perpetrator, police may not have sufficient evidence to support a warrant, so they need the authority to interview an alleged victim without the parents' presence — often, at school.  The Ninth Circuit Court required a warrant, if parents' consent is not obtained or there are no other "exigent circumstances."


In the Greene case, a social worker accompanied by a sheriff's deputy visited the child's elementary school to conduct an interview about alleged sexual abuse. The parent of the child did not consent to the interview and, in fact, was not even informed. The caseworker did not obtain a warrant or other court order before the interview. There is some dispute about the exact nature of the conversation. Later, the caseworker helped to obtain a court order removing the child from the residence, and the child was subsequently interviewed at a forensic center.


Although this case comes before the court on a qualified immunity issue, it presents a solid opportunity to address the balance between the rights of parents and law enforcement. This case seems to raise two issues:


One, is the interview of a child at school a seizure? In the Ninth Circuit, the government appeared to concede that the interview of the child was a seizure. However, the cert. petitions back off this a bit, and at least one amicus curiae brief directly challenged this conclusion. I suspect that this might become the most important part of the case, nonetheless, and I am curious to see how it is briefed by all sides.


Two, if the interview is a seizure, what circumstances can justify the seizure without a warrant? This issue raises a number of concerns, including whether the fact that the interview took place in a school leads to a more lenient Fourth Amendment analysis. This case presents a good opportunity for the Court to expound more on the "special needs" exception to the warrant requirement. Again, I will be watching to see if the government entities urge that all child abuse investigations present a special needs exception applicable to all child abuse investigations, or if the arguments focus more on the particular facts of this case. A focus more on the facts of this case allows that Court to rule that the exigent circumstances of this particular case justified the interview, without addressing broader questions posed by child abuse investigations.


These are my preliminary thoughts on this case. I look forward to posting more developed ideas later.

Wisconsin GPS Offender Tracking System Went Down

I read that a system used by Wisconsin prison officials to track offenders failed the other day. The outage lasted 11 hours, and police responded by rounding up and detaining about 140 offenders. It seemed Wisconsin was well prepared, but I wonder about a system where those who can't be tracked have to be immediately detained. Is that much safety gained if these types of offenders can, in theory, cut off the tracking bracelet and get a pretty good head start on law enforcement?

Privacy Concerns and GPS Tracking of Offenders

Professor Berman gave a nice shout out to the Stockycat blog yesterday. In doing so, he got me thinking about the privacy implications of the increasing use of GPS devices for offenders, and a recent quote from David Fathi, ACLU staff council for the organization's National Prison Project caught my eye:

"To the extent that GPS surveillance is used as an alternative to incarceration for non-violent or first-time offenders, (it) is certainly a positive thing. The ACLU welcomes any reasonable steps to reduce our country's over-reliance on incarceration, which has given (the United States) the highest incarceration rate in the world."

A number of private companies are pushing this service for state and local governments. A recent piece in The Atlantic provides some nice details and descriptions for those interested.

Most systems track the location, direction and speed of the offender, can require the offender to be at home during certain hours, and will notify law enforcement of violations. One of the main benefits, besides reduced costs for government, seems to be that the systems can allow offenders to go to work or school while under supervision. When I was a prosecutor, the system was used primarily as a condition of bond during pre-trial release. It was especially helpful at providing protection for victims of violent crimes, as law enforcement could be alerted if the monitored person approached the victim's home or workplace.

The issue that has not been addressed is what is done with all of the data collected on offenders. Much of the data is stored by private companies. Offenders have a reduced expectation of privacy, but, still, the data collected by the companies and government can reveal a lot about a person – medical facts, religious and political orientation, affairs, etc . . .

I have written about the implications of warrantless police tracking elsewhere.

My quick look through news articles on this issue hasn't found much of a focus on protecting the tracking data maintained as a result of the use of GPS devices on offenders. One blogger at Forbes picked up on the surveillance as "creepy," but concluded, as many presume, that offenders might prefer the surveillance to incarceration. The blogger also suggested an iPhone app to monitor all offenders on GOPS tracking in your area. The privacy implications of being able to track your neighbor 24-7 just because he/she is on probation needs to be explored before we go down that route.

Is anyone aware of research or others expressing this concern? Did the ACLU jump the gun by supporting this system? I think this is an interesting topic for more work and thought.

Monday, October 11, 2010

Can Police Search the Contents of an Abandoned Cell Phone?

The Fourth Amendment Blog has highlighted an interesting recent case from Ohio. State v Dailey.


In Dailey, the defendant attempted to steal some DVDs and a computer from a Wal-Mart. He concealed the DVDs in his coat pocket, put a computer in a shopping cart, and dashed towards the exit. Store security tried to stop the defendant, but (like Peter Rabbit) he was able to wiggle out of his jacket and escape.


The security guard discovered a cell phone in the jacket. He gave the jacket to the police. The police charged the phone and reviewed the contact list. By speaking to a person on the list, they were able to identify the defendant.


The court held that the search of the contents of the cell phone was permissible because the defendant abandoned the jacket and its contents. As a result, the court reasoned, he no longer retained a reasonable expectation of privacy with regards to the cell phone.


I have previously written about State v Smith, the case from the Ohio Supreme Court invalidating a search of a cell phone incident to arrest. A scholarly article on the subject will appear in the University of Memphis Law Review this fall. The Dailey court distinguished Smith on the grounds that "voluntary abandonment is a prime example of when a warrantless search of a cell phone may be conducted since it is clear that a defendant lacks standing to object to a search and seizure of property that he has voluntarily abandoned."


I don't necessarily agree with this analysis. The Dailey court failed to distinguish between a physical search of the cell phone and a search of the contents of a cell phone. Experience suggests that people maintain a reasonable expectation of privacy in the contents even in lost or abandoned cell phones. Cell phones (like the locked footlocker in Chadwick, perhaps) have the capacity for storing immense amounts of private information, including calendars, voice and text messages, email, video and pictures. Indeed, the Dailey decision could have very far reaching consequences. Under this precedent, any time someone leaves behind an iPhone, the police have the ability to search the entire contents of that iPhone.


Thursday, October 7, 2010

Supreme Court Looks at Prosecutors Without “Code”

In A Few Good Men, we learn about people with and without Code. Unit. Corps. God. Country. Lt. Kendrick says, "Pfc. William Santiago is dead, and that is a tragedy. But he is dead because he had no code. He is dead because he had no honor, and God was watching."


Yesterday, the Supreme Court heard arguments in Connick v. Thompson. The facts of this case are shocking to any career prosecutor.

In 1984, Raymond T. Liuzza Jr. was murdered outside his New Orleans home. The defendant was arrested for the murder. Victims of an armed robbery recognized the defendant's picture in the paper, and contacted the police. The armed robbery case was screened and approved by an assistant district attorney. While approving the case, the ADA, noted that forensic tests should be performed on blood left at the scene. The tests were not done initially, but right before trial some results were received by the prosecutor. The results indicated that the robber had type B blood; the defendant had type O blood. The blood evidence was not mentioned at the armed robbery trial and the defendant was convicted. He was later convicted of the murder and sentenced to death. (The defendant claimed that he did not testify at the murder trial in part because he did not want to be impeached with the robbery conviction.)

In 1999, an investigator working on a habeas petition discovered a copy of the lab report. One of the ADA's later admitted to withholding the lab report.


This not a close case of prosecutorial discretion and ethics. As a prosecutor, sometimes it was hard to recognize what may be exculpatory, because what is exculpatory may sometimes depend on the defense theory of the case. But honesty, openness with counsel and the court, and a bias towards disclosure if it was even close usually allowed those issues to be resolved.


The issue before the Supreme Court is not whether the failure to provide this exculpatory evidence is excusable. Thankfully, it is not. The issue before the Court is whether the prosecutor's office should be held civilly liable for the illegal conduct of one of its prosecutors, on the theory that the office failed to adequately train its employees.


I think this is a bad idea.


I take a hard line on prosecutorial ethics and discretion. A prosecutor, who deliberately withholds evidence, resulting in a wrongful conviction, does not need more training. Every prosecutor is reminded from day one of this responsibility, and should face reminders every time he or she reviews the discovery rules. Instead, this case presents a knowing and intentional violation of ethical and legal obligations, as well as basic moral obligations.


I have learned the hard way that people who are not honorable, especially prosecutors who do not have Code, will do things that are not honorable. And people suffer as a result. But the fact is, as I hope the Supreme Court recognizes, that for people without Code more training will be counter-productive. All such training will do is teach them precisely how far they can go before they cross the line.

Wednesday, October 6, 2010

Can the Police Put a GPS Device on Your Car Without a Warrant?

GPS tracking devices have become inexpensive, small, and can easily be attached to a vehicle quickly.  Law enforcement is increasingly using these devices to track the exact location of a suspect’s vehicle over a long period of time.  In most instances, relying on Supreme Court cases from the early 1980’s, law enforcement has not sought a warrant before using these devices.  These precedents established that the use of electronic tracking devices on vehicles did not constitute a search – and, accordingly, did not implicate the Fourth Amendment – because people do not have a reasonable privacy interest in the movement of their vehicles when traveling on a public roadway.  Until recently, Federal courts have, on the basis on these decisions, almost universally upheld the use of GPS tracking devices.  In contrast, state courts have been more reluctant to follow these Supreme Court precedents.    A recent decision (Maynard) by the D.C. Circuit Court should cause future courts to re-examine the application of the prior Supreme Court precedents.  In this decision, the federal court recognized that people have a reasonable expectation of privacy in the totality of their movements over the course of a period of time.  I believe that the approach taken by the D.C. Circuit is most consistent with the Supreme Court’s Fourth amendment jurisprudence because sustained and long-term surveillance of a targeted individual unrelated to any particular criminal action violates a reasonable expectation of privacy.

More to follow . . .

Tuesday, October 5, 2010

Supreme Court (Again) Revisits the Confrontation Clause

The Supreme Court case I am following most closely this year is Michigan v. Bryant. This issue in this case is whether the Confrontation Clause in the Sixth Amendment prohibits the prosecution from using a statement by a shooting victim describing the events, including the identity of the shooter, to the police.

This is another follow-up case to Crawford v. Washington. In Crawford the Court held that the Confrontation Clause prohibits prosecutors from using out of court "testimonial" statements, unless the speaker is available for cross-examination.

The problem with Crawford is that the Court did not provide a good definition of "testimonial." I am interested because I helped author an amicus curiae on behalf of the National District Attorneys Association in Davis v. Washington. In Davis, the Supreme Court held that responses to questions with the primary purpose of enabling police to provide assistance during an ongoing emergency are not testimonial and, therefore, may be used by prosecutors even if the speaker is not available to testify during the trial. The Davis case involved a 911 operator asking a domestic violence victim questions about an assault by her boyfriend. The boyfriend had just fled the scene. The Court in Davis concluded that 911 calls are primarily intended to allow the police to obtain information about events as they are occurring or recently occurred, so that they can respond appropriately to protect life and property. In other words, the confrontation clause is not implicated when the police ask questions designed to resolve an emergency instead of learn what had happened in the past.

The Bryant case involves the response of the Detroit police to a shooting at a gas station. When the police arrived, the victim was bleeding from a gunshot wound to the abdomen. He told the officers that he had been shot by a man named "Rick." He also provided a physical description of the shooter and the location of Rick's home, where the shooting had occurred. The victim died, but the police were able to introduce these statements, along with other corroborating evidence, to obtain a second-degree murder conviction.

I believe that the Court should find that use of the statements did not violate the Confrontation Clause. As in Davis, the statements in this case were intended to enable the police to respond to an ongoing emergency. By asking basic questions of the victim – who, when, why – the officers were able to determine what type of response was needed. For example, they could determine if there was an armed and dangerous robbery suspect fleeing the gas station, or whether there was a domestic disturbance, or whether a sniper was loose in the area.

During oral argument, the Justices, especially Justice Breyer, seemed concerned about establishing a rule that whenever police "come across a victim of a crime and ask him questions, it's going to be admissible." This is probably true, but it does not seem to me to raise a constitutional problem. Instead, trial courts should be able to determine the primary purpose of police questioning from the context.

A Primer on Garrity.

Modern Esquire has a post up about a case in Brown County. Read it here. In that case, charges against states employees were dismissed because the judge ruled that the Office of the Inspector General violated the constitutional rights of the employees. These constitutional rights are referred to as "Garrity Rights."

I know a more than a bit about the authority and practices of the Inspector General. I also know way too much about the politics and the coziness between that office and the Columbus media. But I will leave all of that to others.

Instead, I think I can be helpful by explaining what Garrity Rights are. Garrity is a Supreme Court case decided in 1967. You can read it here. The basic thrust of Garrity is that a state employee may be compelled to give statements under threat of discipline or discharge but those statements may not be used in the criminal prosecution of the individual. The Ohio Supreme Court has gone further. The Ohio Supreme Court has ruled that when a public employee is compelled threat of firing to make a statement in an administrative proceeding, the state may not even indirectly use the statement or present the statement to the Grand Jury.

In Garrity v. New Jersey, police officers were accused of fixing tickets. Before being questioned by internal affairs, each officer was reminded that he could assert his Fifth Amendment right to refuse to answer questions. However, the officers were warned that if they did so, they could be disciplined or fired. Faced with this choice, the officers agreed to answer questions.

The officers made incriminating statements that the prosecution then tried to use against them in a criminal case. The Supreme Court held that this was unconstitutional. The officers had been coerced, under threat of discipline or loss of a job, to waive their constitutional rights. This meant that the waiver was made under duress and the use of the statements was, thus, unconstitutional.

The broad reading of Garrity is that statements obtained from government employees in circumstances in which a state statute would have required the termination of their employment had they declined to answer were involuntary and therefore inadmissible against them in a criminal trial. This appears to be exactly what happened in Brown County. New Jersey had a law that, like Ohio, required public employees to cooperate with investigations. Then, like in New Jersey, the statements were taken to the Grand Jury and used to obtain indictments.

The Judge is Brown County is undoubtedly correct. The defendants are entitled to suppression of their statements because the test of coercion has been satisfied here, and any statements from the OIG and ODNR that the statements were made with full knowledge are irrelevant. The test of whether the employee statements to the Inspector General's Office were voluntary is based solely on the employees' beliefs that termination would follow a refusal to speak, so long as that belief was reasonable. In other words, the statements cannot be used by the prosecutor if a reasonable person in that position would have felt the same way.

This makes sense. The Fifth Amendment is a intended to protect citizens (including state employees) against government coercion. There is every reason to exclude a statement as obtained in violation of the Fifth Amendment if the speaker did felt compelled to make the statement. While it was possible that the employees spoke voluntarily rather than because their jobs were on the line, that seems unlikely. It was far more likely that they spoke to save their jobs.

Monday, October 4, 2010

“Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices.” 

This article will be published in the University of Memphis Law Review in fall 2010.  In this project, I consider the implications of a recent decision by the Ohio Supreme Court.  The court held that if a cell phone is lawfully seized incident to arrest, the Fourth Amendment prohibits the police from searching the contents of the cell phone without a warrant.   The Ohio Supreme Court opinion is remarkable because it abandoned long standing precedent that a search incident to arrest includes the ability to search the contents of any container found on the person.   Federal courts, relying on this “Container Doctrine,” previously have almost universally permitted the search of contents of electronic devices such as pagers and cell phones.  My research suggests that the Ohio Supreme Court’s recognition that the technological sophistication and nature of use of modern cell phones has created heightened expectations of privacy and, therefore, is an indicator of a coming collapse of the Container Doctrine with respect to cell phones. 

My research explains that the Ohio Supreme Court decision is representative of a growing tension between traditional Fourth Amendment doctrines and sophisticated technology.  The decision, I suggest, signals a future willingness by courts to treat the differences between modern electronic devices and the traditional justifications for permissible law enforcement tactics as not one of degree, but of kind.   This tension is not limited to the Container Doctrine.  For example, in reviewing the use of GPS tracking devices on private vehicles by law enforcement, state courts have departed from long standing federal precedents holding that the placement of these devices without a warrant is permissible.  The previous precedents had been justified on the doctrine basis that there is no reasonable expectation of privacy in movements on a public roadway.  Accordingly, under this doctrinal approach, a GPS device merely augments what the police could accomplish through traditional surveillance.  As with cell phones, this doctrine is under pressure due to concerns that the technological sophistication and nature of use of GPS devices has created a greater expectation of privacy. 

My research has led me to conclude that traditional Fourth Amendment doctrines are unable to account for advances in technology.  Instead of relying on doctrines established by “traditional” law enforcement practices, I propose courts should require a warrant whenever the examination of a particular electronic device is likely to lead to the discovery of the type of intimate details about a person that would typically be protected by the First Amendment.  For example, in regards to smart phones, a warrant would be required because an examination of the contents of a person’s e-mails, text messages, documents, and photographs could provide an observer with the ability, for example, to learn the political or religious views of the owner.  Similarly, in regards to GPS tracking, a warrant would be required because the gathering of detailed data on a person’s whereabouts could provide an observer the opportunity to learn about a person’s habits and associates.
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First Monday in October

The Supreme Court term starts today.