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Early this month, the U.S. Supreme Court addedCarpenter v. United Statesto the roster for consideration in the upcoming October term.Carpenterwill mark the Courts first chance to address an important, as-yet unresolved question in the digital age: Does the Fourth Amendment require a warrant for law enforcement officials to obtain cell site location information, or CSLI, which reveal the location and movements of a cell phone user?

The case will address the tension between the Fourth Amendment and the Stored Communications Act, which Congress enacted as Title II of the Electronic Communications Privacy Act of 1986. The SCA specifies procedures that law enforcement may use to obtain certain records from third-party electronic communication services or remote computing services. But it does not require a warrant. Since its enactment, third-party service providers have routinely cooperated with law enforcement requests to disclosesubject to certain statutory requirementscustomer data. And notably the petitioner here does not attack the constitutionality of the SCA. Rather,Carpenterasks whether companies should require a warrant, supported by particularized findings of probable cause, before disclosing CLSI. This question has caused considerable doubt among service providers, which must balance responding to law enforcement demands for information with the privacy interests of their customers, and which also require a clear roadmap about what the appropriate procedures are.

The uncertainty among service providers responding to requests for customer information under the SCA is exacerbated by the existence of a significant circuit split concerning whether the Fourth Amendment applies to CSLI. There have been no fewer than 18 separate majority, concurring and dissenting opinions across five circuit courts on the issue, and courts have fractured over whether there is any reasonable expectation of privacy in CLSI and other customer data.Carpenterimplicates three different strains of Fourth Amendment jurisprudence: (1) the third party disclosure doctrine, (2) the physical trespass doctrine, and (3) the distinction between content and non-content information. The case will have the Court decide whether these doctrines, which first arose in the pre-digital world, still have continuing vitality today. And it will allow the Court to consider whether the accumulation of data by third-party service providersnow commonplacegives rise to any new privacy interests under the Fourth Amendment.

Background

In connection with the investigation of a series of armed robberies, federal prosecutors moved under the SCA for court orders requiring two cellular service providers to disclose 187 days of phone records, including CSLI, for petitioner Timothy Carpenter. Based on the CSLI, the government charged Carpenter with aiding and abetting robbery. Carpenter moved to suppress the evidence, but the district court rejected Carpenters argument and held that the governments collection was not a Fourth Amendment search. On appeal, the Sixth Circuit affirmed, holding (1) that the records did not disclose the contentof communications and thus were not entitled any Fourth Amendment protection; (2) that the disclosure of the records to third-party cellular providers defeated any reasonable expectation of privacy under the seminal caseKatz v. United States, 389 U.S. 347 (1967); and (3) that the physical trespass doctrinewhich the Supreme Court had revived in its recentRiley v. California, 134 S. Ct. 2473 (2014), andUnited States v. Jones, 565 U.S. 400 (2012), decisionsdid not apply.

Concurring in the outcome on alternative grounds, one member on the panel, Judge Jane Branstetter Stranch, wrote separately to air her concerns about the Fourth Amendment tests that courts have applied in this rapidly changing area of technology, especially in light of the sheer quantity of sensitive information procured without a warrant.

The Old Ways Just Dont Work

Carpenterdemonstrates the difficulty of applying the canonical tests under existing Fourth Amendment jurisprudence to the modern day. For example, there is the third party disclosure doctrine, which grows out ofKatzs reasonable expectation of privacy test. For someone to have a reasonable expectation of privacy in a piece of information, (1) that person must subjectively exhibit an expectation of privacy and (2) that expectation must be objectively reasonable. The core concept is that people have no reasonable expectation of privacy in any information they disclose to third parties, because they already subjectively surrendered any such expectation with the fact of disclosure. Where the doctrine applies, you cannot even get past the first step of theKatzframework, andKatzhas remained black letter law on the books for half a century now. But in the digital age, where persons passively disclose so much information about themselves (and their whereabouts) to third parties at all times, what reasonable expectation of privacy could possibly be left?

Or take the related distinction that the Fourth Amendment marks between content information and non-content information, such as addressing. The idea here is that a person has no reasonable expectation of privacy in non-content information, because that is frequently disclosed, either to third-party service provider or to the public more broadly. Consider, for instance, a package sent through the mail: itscontentsare unknown and thus the sender has a reasonable expectation of privacy in that. But all other information about the packagethe return and target address, the amount of postage on it, its size, shape, and weightis ascertainable by any mail carrier or member of the public that comes into contact with it. And so there is no reasonable expectation of privacy in that kind of information. On balance, CLSI appears closer to what courts have traditionally considered addressing or other non-content information: it does not tell you what a person said or did, it just shows you where a person was.

Finally, there is the trespass theory of the Fourth Amendment, which the Supreme Court resurrected in its recent cases dealing with technology. InJones, the Court held that the unauthorized placement of a GPS tracker on a car for long-term surveillance triggered Fourth Amendment protections. Similarly, inRiley, the Court held that law enforcement needed a warrant to search a mobile phone. But this trespass notion does not appear to have any place inCarpentereither. Police did not track Carpenter, or break into his cell phone; they merely asked for records from a third party who kept them.

None of these doctrines apply cleanly. Still, given the accumulation of information, there is still some visceral notion that the Fourth Amendment should apply here. The only question is how?

How MayCarpenterResolve This Tension?

While the petitioner here did not request a full rejection of the third party disclosure doctrine, the Court may cull back on the third party disclosure doctrine. Chief Justice Robertss majority opinion inRileysuggested that persons still have some reasonable expectation of privacy in sensitive information collected over mobile phones and stored by service providers. Similarly, Justice Sotomayors concurrence inJoneswarned against a strict application of the third party doctrine: I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose, is for that reason alone, disentitled to Fourth Amendment protection. In both cases, the Court signaled that stringent adherence toKatzmay stop making sense as technology evolves. But those cases both side-stepped the issue by instead turning to the doctrine of physical trespass, and that doctrine cannot sensibly apply to the facts ofCarpenter.

It is also possible that the Court might create a new strain of jurisprudence based on the quantity of records requested. Such an approach would likely introduce certain issues of line-drawing, for instance, if a warrant is required for long-term tracking, while the SCA is sufficient for short-term. But, as Justice Samuel Anthony Alitos concurrence inJonesand Judge Stranchs concurrence in theCarpentercase point out, that might be appropriate. After all, in the modern era, it is not the disclosure of individual, isolated data points that seem problematic, but rather the accumulation of that data over time.

Which test will the Court apply? Service providers, and their customers, will have to wait until this October term to find out.

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Oh, The Places You'll Go: Mobile Geolocation Data and the 4th Amendment - Lexology (registration)

When an investigation involves potential fraud, almost any document or record could be related to it. Prosecutors often need to show that transactions that appear to be legal were misleading or deceptive, which might not be apparent on the face of the documents. So the description in the warrant of what the government can seize in a white-collar case is usually quite broad, covering general categories of records and computer files created over a substantial period of time, but cannot be so vague that almost anything could be seized.

The government obtained warrants to search Mr. Weys company, New York Global Group, and his New York City apartment for evidence that he used other companies and investors as part of a plan to manipulate the shares of companies used for mergers with China-based businesses. The warrants listed 12 categories of documents that related to transactions with 220 individuals and companies, including the seizure of computers and other electronic devices that might contain records related to them.

The key to any warrant that covers so much material is to properly identify the specific crimes that were committed so that there is some limitation on what types of records can be seized. It was on this point that Judge Nathan found the warrant in Mr. Weys case had failed.

The primary flaw was that while the affidavit submitted by an F.B.I. agent to a magistrate judge gave a reasonable description of the crimes under investigation, that document was not incorporated in the warrant, or even attached to it, to establish the parameters for the search.

Because there were no apparent limits to what could be seized, the agents executing the warrants seemed to take just about everything they could get their hands on. In particular, Judge Nathan was troubled that agents took personal items with no apparent connection to the investigation, like X-rays of family members, childrens sports schedules, divorce papers, passports and family photographs.

In finding that the search violated the Fourth Amendment, the judge pointed out that failure to reference the suspected crimes would alone be enough to render the warrants insufficiently particularized.

The importance of including the crimes under investigation was highlighted in another recent case, involving the appeal of Ross W. Ulbricht, who once operated under the moniker Dread Pirate Roberts. He was sentenced to life in prison for helping set up and operate Silk Road, an anonymous online marketplace used to sell drugs and broker other illegal services. Crucial evidence came from his laptop, which was searched shortly after his arrest in a public library in San Francisco in 2013.

The warrant allowed agents to open every file to view the first few pages of a document, and search terms could be used to scan the laptops entire memory. In upholding the search, the United States Court of Appeals for the Second Circuit in Manhattan pointed out that files and documents can easily be given misleading or coded names, and words that might be expected to occur in pertinent documents can be encrypted; even very simple codes can defeat a preplanned word search.

While the description of what could be searched on Mr. Ulbrichts laptop was broad, it was permissible under the particularity requirement of the Fourth Amendment because the affidavit outlining the crimes under investigation was incorporated into the warrant, providing the necessary limitations on what could be viewed. Although that meant a very intrusive search that could include many personal documents, the appeals court found that such an invasion of a criminal defendants privacy is inevitable, however, in almost any warranted search.

Why did the government fail to meet this seemingly simple requirement of incorporating the description of the crimes under investigation in the warrant to search Mr. Weys office and apartment? There is no good explanation for that mistake, which led Judge Nathan to conclude that the warrants are in function if not in form general warrants, the death knell for any search.

One way the government could have seized virtually everything from Mr. Weys business and home would have been to offer evidence in the warrant application that his operation was completely fraudulent. Courts recognize that if a company is thoroughly permeated by fraud, such as a boiler-room operation or a bogus prescription drug dispensary, then any records connected to it would constitute evidence.

Although prosecutors made this argument to defend the seizure from Mr. Wey, they could not overcome two hurdles. First, this type of warrant is usually limited to a business rather than a home, at least unless there is substantial evidence that the home was really just an extension of the illegal operation. There was nothing in the warrant application involving Mr. Weys apartment that would indicate its primary use for that purpose, even though his wife assisted his advisory business from there.

Second, Judge Nathan found that the government did not set forth any evidence, explicit or implicit, that the scheme either constituted just the tip of iceberg with respect to fraudulent activity at Mr. Weys operation, or that the claimed fraudulent activity infused the entire business.

Perhaps the ultimate fallback in any case involving a flawed search warrant is the claim that the agents acted in good faith. The exclusionary rule is designed to deter governmental misconduct, and the Supreme Court noted in United States v. Peltier that where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.

That exception does not apply when a warrant is so clearly flawed that no reasonable agent would rely on it. Judge Nathan found that the warrants did not have any meaningful linkage to the suspected criminal conduct and limited only, at the outer boundaries, to some relationship to the owner/occupant of the premises being searched. Therefore, a claim of good faith to salvage the fruits of an otherwise unlawful search could not be supported, so the exclusionary rule required suppression of all the evidence seized.

I expect that the Justice Department will challenge the decision because the suppressed evidence is at the heart of the case against Mr. Wey. Although a defendant cannot appeal a denial of a suppression motion until after a conviction, the Criminal Appeals Act authorizes prosecutors to seek review of a decision granting such a motion so long as the United States attorney certifies that the appeal is not for the purpose of delay and the material would be substantial proof of a fact material in the proceeding.

Judge Nathans decision sends a clear message to agents and prosecutors in white-collar-crime investigations to tread carefully when using a search warrant to gather evidence. Although a treasure trove of materials can be obtained this way, failing to pay attention to the details of properly writing and executing a warrant can have devastating consequences for a case.

See the rest here:
Mishandle a Fraud Search, and All That Fine Evidence Could Be for ... - New York Times

Posted Mon, June 26th, 2017 4:23 pm by Amy Howe

It has been a little over seven years since 15-year-old Sergio Hernandez was shot by Jesus Mesa, a U.S. Border Patrol agent, while Hernandez was standing on the Mexican side of the border. Hernandezs family filed a lawsuit against Mesa, arguing that (among other things) the shooting violated Hernandezs right under the Fourth Amendment to be protected against excessive deadly force. Both Mesa and the U.S. government urged the Supreme Court to uphold the lower courts rulings dismissing the familys lawsuit, but their case survived at least for now. Acknowledging that the facts outlined in the familys lawsuit depict a disturbing incident resulting in a heartbreaking loss of life, the justices sent the case back to the lower court for it to take another look.

View of the courtroom on the last day of opinions (Art Lien)

The Hernandez family had asked the justices to weigh in on two questions: whether the Fourth Amendments bar on excessive deadly force applies outside the United States and how courts should make that determination; and whether, even if Hernandez was protected by the Fifth Amendments guarantee that his life would not be taken without proper judicial proceedings, Mesa is immune from suit. But the justices asked the two sides to brief another question: whether the Hernandez family can rely on the Supreme Courts 1971 decision in Bivens v. Six Unknown Named Agents, holding that a plaintiff can bring a private federal case for damages against federal officials who allegedly violated his constitutional rights, at all.

In an unsigned opinion, the Supreme Court emphasized today that the lower court had not given any consideration to the Bivens question. The justices noted that plaintiffs cannot rely on Bivens when there are special factors counselling hesitation in the absence of affirmative action by Congress. And in another decision last week, the court continued, it indicated that the focus of that inquiry should be whether courts are well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed. Therefore, the court concluded, the case should go back to the lower court for it to consider what effect that ruling might have on the Bivens question in this case. Doing so, the court indicated, might eliminate any need for the court of appeals to decide whether Hernandez was protected by the Fourth Amendment which, the court seemed to suggest, could be preferable to deciding the sensitive and potentially far reaching Fourth Amendment question.

The court disagreed with the lower courts conclusion that Mesa was entitled to qualified immunity from the familys Fifth Amendment claim. That conclusion, the court explained, rested on the fact that Hernandez was not a U.S. citizen and did not have any connection to the United States. But that fact isnt relevant to whether Mesa can be immune from a lawsuit, the court countered, because Mesa only learned after the shooting that Hernandez was not a U.S. citizen. Here too, the court stressed, the lower court had not addressed whether the familys claim could even proceed under Bivens; it will now consider that question, as well as a series of other arguments about qualified immunity, on remand.

Justice Clarence Thomas wrote separately to indicate that, in his view, the Hernandez family could not rely on Bivens at all. This case, he contended, arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny in particular, conduct that occurs across an international border. He would not have sent the case back to the lower court; instead, he would have put a halt to it altogether.

Justice Stephen Breyer dissented, joined by Justice Ruth Bader Ginsburg. In his view, Hernandez was protected by the Fourth Amendment when he was shot. Even if he was on the Mexican side of the border, Breyer reasoned, his location should not, standing alone, be dispositive. This is particularly true, Breyer continued, when you consider several factors. For example, Mesa who shot Hernandez is a federal law-enforcement officer, and the culvert where Hernandez was shot is in fact a special border-related area run by an international commission to which the United States contributes tens of millions of dollars each year. Moreover, a finding that Hernandez was not protected by the Fourth Amendment would create an anomalous result: Mesa could be held liable for shooting Hernandez if Hernandez was on the U.S. side of the imaginary mathematical borderline running through the culverts middle, but not if Hernandez was just a few feet on the other side of that line, even if everything else about the case, including Mesas behavior, remained the same. When all of these things are considered together, Breyer concluded, there is more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections. He would therefore decide the Fourth Amendment question in favor of Hernandez and send the case back to the lower court for it to decide the Bivens and qualified immunity questions.

Posted in Hernndez v. Mesa, Analysis, Featured, Merits Cases

Recommended Citation: Amy Howe, Opinion analysis: Court sends cross-border shooting lawsuit back to lower court, SCOTUSblog (Jun. 26, 2017, 4:23 PM), http://www.scotusblog.com/2017/06/opinion-analysis-court-sends-cross-border-shooting-lawsuit-back-lower-court/

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Opinion analysis: Court sends cross-border shooting lawsuit back to lower court - SCOTUSblog (blog)

Sacramento Bee

Why California gun owners may be breaking the law on July 1 Sacramento Bee You can't just take something away from somebody that they own without violating the Fourth Amendment. Some gun owners say they're hanging on to their magazines in the hopes pending court challenges will block the ban. They also hope the federal ...

Originally posted here:
Why California gun owners may be breaking the law on July 1 - Sacramento Bee

The Trump administration asked a federal judge on Friday to uphold the constitutionality of the controversial state immigration crackdown passed by the Republican-dominated Texas legislature.

The U.S. government isnt a party in the lawsuit challenging Texas Senate Bill 4, which bans so-called sanctuary policies that limit local police from cooperating with federal immigration authorities. But the Texas law has become a prominent test of whether courts will approve strong-arm tactics endorsed by President Donald Trumpto pressure local jurisdictions into complying with federal deportation efforts.

President Trump has made a commitment to keep America safe and to ensure cooperation with federal immigration laws, Attorney General Jeff Sessions said in a statement Friday. The Department of Justice fully supports Texass effort and is participating in this lawsuit because of the strong federal interest in facilitating the state and local cooperation that is critical in enforcing our nations immigration laws.

SB 4 bars local jurisdictions in Texas from denying requests from Immigration and Customs Enforcement to hold suspected undocumented immigrants on the federal governments behalf. Adopting a policy of refusing such requests, known as detainers, can land public officials in jail for up to a year under the new law. SB 4 also allows local police officers to ask the immigration status of anyone they stop, drawing comparisons to an Arizona law derided by critics as the show me your papers law.

Several jurisdictions including Austin, San Antonio and El Paso filed lawsuits to overturn SB 4 shortly after Gov. Greg Abbott signed it into law last month.

The legal challenges accuse Republican lawmakers of trampling multiple constitutional principles.

Several federal judges have ruled in recent years that holding someone on an ICE detainer in a local jail if they would otherwise be allowed to go free violates the Fourth Amendments guarantees against illegal search and seizure. And because the federal government alone is charged with crafting immigration policy, the state of Texas cant create its own, or dole out criminal penalties for refusing to follow a state policy, critics argue.

The flurry of lawsuits were consolidated into a single case that will have its first hearing on Monday, when U.S. District Judge Orlando Garcia will consider whether to block the law from taking effect on Sept. 1 while the legal challenges move forward.

The Justice Department will try to convince the judge to give the law a chance.

Cooperation with federal officials is plainly permitted under the [Immigration and Nationality Act] and the Constitution, the statement of interest filed by DOJ reads. Parties may disagree with the state legislatures policy determinations in enacting SB 4, but nothing in federal immigration law precludes a state from directing law enforcement officers in the state to cooperate with the federal government, rather than merely permitting them to do so on an ad hoc basis.

The filing hinges on the argument that ICE detainers have changed in the months since Trump took office. The Department of Homeland Security started issuing administrative arrest warrants in April, along with detainer requests, in an apparent effort to make ICE holds less vulnerable to legal challenges.

That argument may not convince Garcia. He ruled earlier this month that the Bexar County Sheriffs Office in Texas violated the Fourth Amendment by refusing to release an undocumented immigrant for more than two months on the basis of an ICE detainer. The ruling appeared to strike a major blow against SB 4, which aims to force local jurisdictions to honor all such requests from ICE.

The Justice Departments filing took note of that ruling, but countered that the case began last year, before Trump took office. The Trump administrations new policy of including administrative warrants with ICE detainers solves the problem and is fully consistent with the Fourth Amendment, the filing says.

But avoiding the constitutional pitfalls presented by ICE detainers requires a warrant in a criminal case, not an administrative warrant for a violation of civil immigration law, according to Nina Perales, an attorney with the Mexican American Legal Defense and Educational Fund.

The Fourth Amendment in this context requires probable cause that the individual has committed a crime in order to deprive that person of liberty, Perales, one of several lawyers representing SB 4s opponents, told HuffPost. DOJ cannot hang its hat on the new detainer form when it comes to the stringent requirements of the Fourth Amendment.

Read the Justice Departments statement of interest below.

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Trump Administration Backs Texas In Immigration Crackdown Challenge - HuffPost