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Law Technology News: Courts Still Divided on Cell Phone Searches

Law Technology News, June 22, 2012.

A Colorado court has continued the split among courts about the ability, under the Fourth Amendment, for police to search cell phones. The case is People v. Taylor, Colo. Court of Appeals, 5th Div. No. 09CA2681 (June 7, 2012).

In Taylor, undercover officers suspected that the defendant was dealing drugs. He was arrested. After the defendant was arrested, he was searched and his cell phone was seized. One of the arresting officers reviewed the cell phone's call log -- without a warrant -- and found incriminating evidence.

The defendant argued that the search of his cell phone without a warrant violated his Fourth Amendment rights. The police justified the search under the "search incident to arrest" exception to the warrant requirement. In brief, under this exception to the Fourth Amendment, police may search any objects in the possession or reach of an arrested person.

Whether this search includes cell phones has not been addressed by the U.S. Supreme Court. A number of courts -- including the Fourth and Fifth Circuits, have permitted these searches. Some courts -- including most notably the Ohio Supreme Court -- have suggested the cell phones are different.

The Taylor court allowed the search. Notably, the court seemed to rely upon the fact that the search was limited to the call history. Whether a different result would have been reached had officers searched emails, text messages, or photographs stored on a smartphone is an open question. Regardless, the Taylor case further illustrates why guidance from the Supreme Court on this issue is necessary.

For further background, see also LTN's March 12 analysis of a Seventh Circuit decision, U.S. v. Abel Flores-Lopez; "Courts Struggle With Police Searches of Smartphones," and this law review article, "Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices, University of Memphis Law Review, Vol. 41, p. 233 (2010).

Post Originally appeared on EDD Update.

More on: Audio Recordings

Seventh Circuit Addresses Audio Recordings and the First Amendment

Law Technology News

by Joshua A. Engel | 05/17/2012

Whenever a public figure speaks, smartphones and audio devices are there to record. The Seventh Circuit recently addressed the First Amendment limitations of this action in ACLU of Illinois v. Alvarez.

From EDD Update:

7th Circuit Holds Cell Phone Videos Are Protected

Every time a public figure speaks these days, smartphones are there to record the speech.

A key question: Is this legal?

That was the issue addressed last week by the Seventh Circuit Court of Appeals. The case isAmerican Civil Liberties Union of Illinois v. Alvarez, 7th Cir. No. 11-1286 (May 8, 2012).

The court reviewed a challenge to the Illinois eavesdropping statute, which makes it a felony to audio record "all or any part of any conversation" unless all parties to the conversation give their consent, and includes any oral communication regardless of whether the communication was intended to be private.

In Chicago, citizens had started a "police accountability program," which included plans to openly make audiovisual recordings of police officers performing their duties in public places and –- a fact that makes the statute applicable -- speaking at a volume audible to bystanders. When persons involved in the program feared prosecution, the ACLU challenged the eavesdropping statute on First Amendment grounds on their behalf.

The court held that the statute, in these circumstances, violated the First Amendment.

Read the full article on LTN online.

The image is in the public domain

More Frequent Fliers at the Court. New Supreme Court Decision Continues Trend of Taking Criminal History of Suspects into Account in Miranda Cases.

In 2011, I published an article in the Seton Hall Circuit Review on the Supreme Court’s recent Miranda decisions:  Frequent Fliers at the Court, 7 Seton Hall Circuit Review 303 (2011).

In that article, I reviewed four Supreme Court cases interpreting Miranda that featured suspects with significant prior interaction with law enforcement and the criminal justice system:  Montejo v. Louisiana, Florida v.Powell, Maryland v. Shatzer and Berghuis v. Thompkins.  I observed that “while the original Miranda decision held that the atmosphere of a custodial interrogation generates ―inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely, these later decisions shift the focus from the atmosphere to whether the individual suspects were actually compelled to make incriminating statements.” 

The four decisions all concerned the waiver of Miranda rights.  The article examined the increased consideration of the criminal background of suspects, whether implicit or explicit, by the Supreme Court and lower courts in determining whether a Miranda waiver is made in a knowing, intelligent and voluntary manner. I concluded:  “By implicitly – and, someday, probably, explicitly – taking the criminal experience of the suspect into account along with the totality of the circumstances surrounding the interrogation, the Court may be engaging in a more realistic review into whether a waiver and statement were uncoerced.”

The Supreme Court decided another Miranda case involving a frequent flier recently:  Howes v. Fields  In Howes, the issue was not a waiver of Miranda rights, but whether the suspect was in “custody” and therefore was entitled to receive Miranda warnings prior to an interview.  The suspect in Howes was serving a sentence in jail (for disorderly conduct!) when he was escorted to a conference room and interviewed about an alleged sexual offense.  He was told that he was free to leave; he subsequently confessed to the crime. 

The Supreme Court concluded that, despite the fact that he was incarcerated, the defendant was not in custody for Miranda purposes.  This is because, when examining the totality of the circumstances, the Court believed that incarcerated persons “live” in prison and can return to the daily prison life. 

Later, I will more closely examine the entire opinion.  But what caught my eye initially was the Court’s willingness to take an incarcerated defendant’s familiarity with the criminal justice system into account in the analysis of whether the defendant in in custody ofr Miranda purposes.  The Court noted that “a prisoner, unlike a person who has not been sentenced to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release.”  The Court also noted that a prisoner “knows that the law enforcement officers who question him probably lack the authority to affect the duration of the sentence.” 

The Howe decision, thus, appears to be consistent with the long-term approach of the Supreme Court in taking the subjective knowledge and experience of suspects into account in deciding Miranda cases.  Key among the subjective knowledge and experience of suspects is a familiarity and experience with the criminal justice system.

Constitution 3.0

From EDD Update.


Jeffrey Rosen is the co-editor (with Benjamin Wittes) of a new book from The Brookings Institute, Constitution 3.0: Freedom and Technological Change. A constitutional law scholar, Rosen addresses the effect of changing technology on constitutional issues, and recently was interviewed on NPR. 

Rosen claims that “lawyers at Facebook and Google and Microsoft have more power over the future of privacy and free expression than any king or president or Supreme Court justice.”

In the book, Rosen suggests that new technologies, such as GPS tracking, are “challenging our Constitutional categories in really dramatic ways . . . And what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today.” 

Rosen seems to point to two ways in which technology has changed the perception of privacy, at least how the Fourth Amendment is concerned. First, there is the consideration of the amount of privacy people can expect in public places.  Second, there is the difference between short-term and long-term surveillance. 

In the book, leading legal scholars were asked to imagine technologies and hypothetiucal situations that might be developed in the next few decades that would challenge current thinking about constitutional privacy protections. One scenario he describes is particularly interesting:  websites such as Google post video from live surveillance cameras online and archive those videos in a database. Add in facial recognition abilities of Facebook, and it could be possible to search for the location of individual persons at any given time.  The challenge is the police could use this surveillance without any apparent Fourth Amendment limitations because no government action would be involved in obtaining the data.

Listen to the NPR interview.

Personal Experience with Find My Friends

From EDD Update.

TMI or Life Saver?

I learned last week that too much information from tech can be a bad thing.

Apple last month released the “Find My Friends” feature on iPhones.  This featrure allows users to view the current locations of other users — who agree — on a map. While sold as a way to track and meet up with friends, I am guessing that the feature is most popular with families. 

Predictably, last month stories started to appear that one of the great uses for “Find My Friends” is the discovery of cheating spouses. One person posted on a web site that he had used the feature to discover that his wife was with another man when she had claimed that she was at a friend’s house in another part of town. 

One commentator noted:

I am sure at this very moment that John Grisham is calling his agent and musing about a new novel — set somewhere in Mississippi — where the plot will turn on the cheery new functions of an iPhone 4S. The plot will, no doubt, turn on whether planning such a ruse would constitute admissible evidence. . . .

Quite soon, I feel sure that happy couples will be making their promises at the front of churches and include this wording: "Till death do us part. Or till I discover that my sleazy little spouse has been secretly following my movements with an adorable little Apple app.

An author in Forbes took a more ominous view of the technology:

Will being given technology tools that make law-enforcement-style surveillance so easy a baby could do it transform us (more than Facebook already has) into a society of spies? Just as we expect everyone to have a Facebook account, perhaps we’ll start expecting everyone to volunteer their whereabouts at all times, as part of the “social OS.” If a friend (or a spouse) chooses NOT to be tracked, will we assume they are up to no good?

My own story is less exciting. We use “Find My Friends” and have found it useful for much more mundane purposes, such as calculating when someone on the road will be home from work. Earlier this week, I was picking up the kids because my wife had an appointment in another city. I called my wife but she did not answer, so I checked where she was on Find My Friends.  To my shock, her location was at the local hospital. I checked again, got the same result, and did a quick U-Turn to head to the hospital.

Then story has a happy ending — she had stopped at a jewelry sale by the hospital auxiliary.  But for about 10 minutes I was panicked and worried.

The moral of the story is obvious.  At the risk of sounding like Andy Rooney, maybe sometimes we really were better off before we had all of this technology.