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June 8, 2017

The law dictates when enforcement officers need a warrant for searches and when they dont. Where do the protections of the Fourth Amendment apply and where do they not.

Technologys rapidly changing capabilities present a constant need for constitutional protections to be guided by updated rule of law.

In June 2014, the Supreme Court expanded the law to address privacy concerns in the digital age. In Riley v. California, the justices decided a warrant is needed to search cellphones seized from someone who has been arrested. They knew when they ruled that they werent just talking about a flip phone with a few photos and a contact list. It was a landmark ruling.

In that 2014 decision, Chief Justice John Roberts wrote: The term cell phone is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.

Roberts likened it to ransacking a persons home. Indeed, a cellphone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.

An example he gave: past location information, now a standard feature.

The court will decide whether law enforcement authorities need a warrant to gather cellphone data from cellphone companies.

The case, Carpenter v. U.S., involves a convicted robber named Timothy Carpenter, who was found guilty partly on the basis of months of cellphone location records turned over without a warrant.

The justices know that technology now gives government the ability to rummage through more than cars, closets, bedroom drawers and smartphone photos. Technology gives enforcement the ability to look at a persons entire life, personal and otherwise, under an amazingly invasive digital microscope. Where and when do you need a warrant for that?

Today, the U.S. Supreme Court conferences on 159 petitions for review and OOIDAs ELD mandate case is one of them. How does OOIDAs ELD case relate? Youve probably already put the dots together. The issues differ fromthose in OOIDAs ELD case. But the courts interest in the gathering of data from electronic devices is significant.

See more here:
Brushing up on landmark Fourth Amendment cases - Land Line Magazine

Yesterday we looked at a warrantless, mass search of Georgia high school students that was almost certainly unconstitutional, and that some students say included touching and probing of their genitals. Today,another disturbing story about what would seem to be clearly unconstitutional searches at a Colorado low-income apartment complex:

The Longmont Housing Authority says it was using the homes of low-income residents to train police drug dogs. There werent warrants, but simply a notice that the landlord was coming, and a police officer and drug dog would be there, too.

The letter to residents of The Suites low-income housing community starts with standard stuff, notifying them of an inspection. Thats what landlords across Colorado do.

Then it mentions that the police officer and drug dog. Nowhere in the letter are residents told that while they must let the landlord in, they do not have to allow the police officer and drug dog inside without a warrant. And then, if the officer does come inside, anything they find is fair game.

The head of the complex isKrystal Winship Erazo, and she appears to have no concept whatsoever of the Fourth Amendment.

Two months ago, there were some rumors and some concerns about drug activity on the property and one way we found to address it was to invite a partnership with the Longmont Police Department to invite the canines over on their training day, Erazo said in an interview with 9NEWS. Usually it helps the residents feel really secure in that were following up, were holding residents accountable, its an opportunity for the dogs to train.

Ill go ahead and write this, because apparently needs to be written: Low-incomepeople havethe same rights as everyone else. Low-income people are not the equivalent of tackling dummies, or lab rats or volunteers on some police training course.You cantuse poor people to train your police dogs.

Erazo then spoutsthe hackneyedline of every Fourth Amendment authoritarian everywhere.

If there is concern, it kind of sparks some curiosity for me, Erazo said. You know, what are they concerned about if (the officers) only job is to ensure there arent drugs in the unit?

It sparks some curiosity is a euphemistic way of saying poor people who dont want cops going through their stuff can only beup to no good.

The complex has since halted the searches. But it makes you wonder where else this sort of thing is happening. I recall in researching my first book that in the 1980s and 1990s there were policeraids on entire housing complexes. Every unit inside was hit. The raids were obviously illegal, but the people on the receiving end of them were usually powerless to do much about it.

Good on Denvers 9 News for covering this story, and for making this point in particular:

Its worth noting that the only reason this practice went public and stopped is because someone at the public housing complex knew her rights, and knew that she didnt have to submit to a warrantless police search, no matter what the housing authority said.

Link:
Colorado housing officials invite cops to perform warrantless searches on poor people - Washington Post

The Sixth Circuit Appeals Court is the latest to weigh in on cell site location info. It joins every other circuit that has handled the issue in deciding the gathering of cellphone GPS data by law enforcement is not a search under the Fourth Amendment.

This decision [PDF] isn't too surprising considering the court reached the same conclusion last year in a similar case. The difference between the two is the latest case deals with real-time collection of GPS data, rather than historical GPS records. But that's the only difference. The Appeals Court believes the same holds true for real-time location info, although it cites something other than 1979's Smith v. Maryland in its analysis.

[T]he district court heldand we affirm, holding that the governments detection of Montai Rileys whereabouts in this case, which included tracking Rileys real-time GPS location data for approximately seven hours preceding his arrest, did not amount to a Fourth Amendment search under our precedent in United States v. Skinner, 690 F.3d 772, 781 (6th Cir. 2012). The government used Rileys GPS location data to learn that Riley was hiding out at the Airport Inn in Memphis, Tennesseebut only after inquiring of the front-desk clerk did the government ascertain Rileys specific room number in order to arrest him. The GPS tracking thus provided no greater insight into Rileys whereabouts than what Riley exposed to public view as he traveled along public thoroughfares, id. at 774, to the hotel lobby. Therefore, under Skinner, Riley has no reasonable expectation of privacy against such tracking, and the district court properly denied Rileys motion to suppress evidence found upon Rileys arrest.

While tracking a robbery suspect, law enforcement obtained an order demanding AT&T hand over location data as soon as it was collected.

The court order compelled disclosure of call metadata such as inbound and outbound phone numbers and cell-site location (CSL) data, as well as real-time tracking or pinging of the latitude and longitude coordinates of Rileys phone. Specifically, the order required AT&T to disclose the following, potentially for two months, until August 26, 2015:

16. Precision location of mobile device (GPS Location) such that service provider shall initiate a signal to determine the location of the subjects mobile device on the service providers network or with such other reference points as may be reasonable [sic] available and a [sic] such intervals and times as directed by State Task Force Investigators and Deputy Marshals of the United States Marshal Service.

The court goes on to note that the location records submitted as evidence do not show whether this collection of info was triggered by AT&T or by the cellphone's owner.

No evidence of record indicates whether Rileys phone automatically transmitted its GPS coordinates to AT&T (and if so, whether on a continuous basis or otherwise) or whether AT&T affirmatively sent a signal to Rileys phone to cause it to send AT&T its GPS coordinates.

This should have been a warning flag. It's one thing to collect this info as it comes in. If AT&T is pinging the phone to generate GPS coordinates, AT&T is essentially performing a search on behalf of the government. That should make a difference in this case, as it shifts it from being about a collection of third-party records to an affirmative gathering of records by the government, using AT&T as a third-party stand-in to work around warrant requirements. (Not that case law is settled for GPS tracking, but still)

But it doesn't. The court goes on to say it doesn't matter because the records were gathered by a third party and they all dealt with the movement of an individual in a public area (the motel where he was arrested). That's why the court cites the Skinner decision, rather than relying exclusively on Smith v. Maryland.

In Skinner, we held that location data emitted by a voluntarily procured cell phone could not be subject to a reasonable expectation of privacy, even if the cell-phone user had no reason to expect that the government would compel the service provider to disclose those data. Id. at 779. There, because the defendants movements could have been observed by any member of the public, ibid., we held that it could not possibly be a Fourth Amendment violation for law-enforcement officers to monitor those movements by using cell-phone location data just because such electronic monitoring was more efficient than relying on visual surveillance alone.

But it then goes on to reach a conclusion which seems to contradict the evidence provided.

Using seven hours of GPS location data to determine an individuals location (or a cell phones location), so long as the tracking does not reveal movements within the home (or hotel room), does not cross the sacred threshold of the home, and thus cannot amount to a Fourth Amendment search. After all, the tracking in Knotts revealed the location of the cabin to which the criminal suspects had traveledbut the tracking in Knotts was not a search because it revealed no information about the interior of the cabin itself. Likewise here, the tracking revealed only that Riley had traveled to the Airport Inn, not which room (if any) the phone was in at the time of the tracking.

The lack of location info particularity should have worked against the government's argument. The court even admits in a footnote the government had no idea where exactly the suspect was located -- only a general idea that he was likely in a publicly-accessible building.

When viewed on a map, the majority of these coordinates are scattered within the perimeter of the Airport Inn, but with insufficient precisioneven if the Airport Inn were only one story tallto reveal which room, if any, the phone was in at the time of each ping.

So, it could be argued the government did track the suspect's "movements within a hotel room," which would put this back in Fourth Amendment territory. But the court never attempts to reconcile these contradictory statements and instead continues to use both the motel's accessibility and the coarse location info as an argument against potential Fourth Amendment violations.

That Riley was arrested in a motel is of no moment, for the government learned no more about Rileys whereabouts from tracking his cell-phone GPS data than what Riley exposed to public view by traveling to the motel lobby along public thoroughfares, Skinner, 690 F.3d at 774even if Riley meant to keep his location a secret, one cannot expect privacy in ones public movements.

Certainly the arrest was "no moment," but the tracking that occurred once he was inside the building should have been given more consideration. The fact that law enforcement can obtain real-time location tracking information definitely needs to be examined more closely, especially when there's ample evidence law enforcement has effectively backdated orders like these to cover up use of more intrusive technology like Stingray devices.

More here:
Sixth Circuit Appeals Court Latest To Say Real-Time Cellphone Location Tracking Not A Fourth Amendment Issue - Techdirt

In a split decision in United States v. Delva, No. 15-cr-683 (Kearse, Winter, Jacobs), the Second Circuit held that the Fourth Amendment allowed law enforcement officers to seize cell phones and a number of letters that were in plain view in the room of a suspects home where he was interviewed immediately after an arrest. The majority opinion, written by Judge Kearse, relied on the exigent circumstances doctrine to hold that it was reasonable under the circumstances to hold an interview in the suspects home, which allowed the officers to seize incriminating evidence that was in plain view without obtaining a search warrant. Although the majority opinion is careful to recognize that the exigent circumstances exception requires a case-by-case analysis, the decision extends the infrequently applied exigent circumstances doctrine to a new set of facts. The decision drew a dissent from Judge Jacobs, who objected to the majoritys reliance on the exigent circumstances doctrine when the government had not raised it in the trial or appellate court, thus denying the defendant any chance to respond to this somewhat novel analysis offered by the Court.

The case arose out of a brutal drug-related double kidnapping, robbery, and assault committed in 2012 in the Bronx. The panel opinion begins with a recitation of the gory facts, which involved a violent home invasion robbery followed by a second kidnapping, all in a search for drug money. The resulting investigation led law enforcement officers to a small, three-room apartment with an arrest warrant for Gregory Accilienbut no search warrant. When the police arrived, Accilien was in the apartment along with defendant David Delva, who was not yet a suspect in the kidnapping/robbery, as well as two other men, a woman, and several children. After entering the apartment, the police moved the woman and children to the living room, handcuffed three of the men in the kitchen, and handcuffed Delva on the floor of the bedroom. While securing Delva and checking the bedroom for additional people, the officers spotted a bag of cocaine and a loaded gun through an open closet door. They seized the gun and the drugs and moved Delva to the kitchen. It took the officers less than two minutes to secure the apartment.

While Accilien was put under arrest for the kidnapping, the officers testified that they did not know who was responsible for the guns and the drugs found in the bedroom, which contained both a bed and an air mattress. The officers took Accilien into the bedroomthe only empty room other than the bathroomto question him. Accilien said that the gun and the drugs were Delvas, and Delva was arrested and charged under state law. However, while they were in the bedroom questioning Accilien, one of the officers observed two cell phones, one on the TV and one on the bed, and several letters addressed to Accilien from an individual who was already under arrest for the kidnapping. The letters implicated Delva in the kidnapping, and he was rearrested on federal charges several months later.

The primary question on appeal was whether the district court (Forrest, J.) erred in denying the motion to suppress the phones and the letters. There was little dispute that the items were in plain view, so, under well-established case law, the officers could seize the phones and letters so long as the officers were lawfully in the bedroom when they spotted them. The Second Circuit began by rejecting the reasoning of the district court, holding that the phone and the letters were not seized as part of a protective sweep of the apartment. The Second Circuit found that the district court erred by treating the phone and letters, which the officers saw in plain view during the interview of Accilien, just like the gun and the drugs, which they saw in plain view while securing Delva and the bedroom. While the officers behaved reasonably to ensure their safety by conducting a protective sweep, handcuffing Delva, and checking that the bedroom was otherwise empty, they did not see the phone or the letters on this first trip to the bedroom during this protective sweep. It was only when the officers re-entered the bedroom, after the apartment had been secured, that the additional evidence was found. At that point, additional searches could not be justified by the officers concern for their safety.

Rather than reverse the decision of the district court and remand the case, the majority instead identified a different doctrine that supported the constitutionality of the search: the exigent circumstances exception. The Court held that this doctrine justified the officers presence in the bedroom when they saw the cell phones and letters. This rationale had not been raised by the government at the trial court or circuit court level. The classic exigent circumstances case involves a situation in which the police must enter a private area to prevent the destruction of evidence or a suspects flight. But the majority extended the doctrines reach to these facts, noting that reasonableness is always the touchstone of Fourth Amendment analysis. The Court cited to its prior decisions considering whether warrantless conduct was permitted. E.g., United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc). The majority found that it was reasonable for the officers to take Accilien into the bedroom to interview him because (1) they did not know who to arrest for possession of the drugs and the cellphone, (2) Accilien might have been intimidated from speaking freely in the presence of the others, and (3) besides the bathroom, the bedroom was the only empty room in the apartment with a door. The case cited by the panel involving the most analogous facts to those in Delva was an unpublished decision from the Sixth Circuit. See United States v. Ocean, 564 F. Appx 765, 771 (6th Cir. 2014).

Judge Jacobs dissented from the Fourth Amendment analysis, and would have remanded the case to the district judge to consider the exigent circumstances exception, the application of which is a fact-dependent question. He observed that because the government had never raised that exception, either before the trial court or on appeal, Delva had no opportunity to respond, either on the facts or the law. Moreover, Judge Jacobs said that [i]t is not as though there would have been nothing for Delvas counsel to say, noting that no published opinion from any circuit court has ever applied the exigent circumstances doctrine to similar facts.

In a brief final section of the opinion, the majority rejected Delvas remaining arguments. It held that the district court did not abuse its discretion in allowing one of the victims to testify about her rape, even though Delva was not charged with rape, because it formed a part of the story line that explained how the crime progressed. The Court also found no abuse of discretion in the removal of a juror who had failed to disclose arrests and convictions at voir dire and during later questioning. Finally, the Court rejected Delvas challenge to his sentence which, at 360 months, was below the Guidelines range of life plus five years.

The Court of Appeals was evidently troubled by the district courts ruling on the protective sweep doctrine, believing that the district court expanded the doctrine beyond the very specific type of situation it was meant to address: a warrantless seizure of evidence that is seen in plain view while the police officers are conducting a necessary safety procedure during an arrest. Where the officers have secured the premises and are taking second-order investigative steps, the protective sweep doctrine no longer applies. By deciding the appeal on alternate grounds, the Court of Appeals was able to avoid remanding this case, involving very serious allegations, for a new trial. However, this result came at the cost of a broadened interpretation of the exigent circumstances doctrine. Given the fact-specific nature of the Courts decision and the Courts emphasis on reasonableness as the touchstone of Fourth Amendment analysis, it leaves open the possibility of limiting the reach of Delva in future cases. Finally, although the majority seems to have believed that no additional fact-finding or briefing was necessary, litigants are rightly disturbed to lose on an issue that they never had the opportunity to brief or argue. In light of this, litigants will probably hope that this procedure continues to be the exception and not the rule.

Read more:
Exigent Circumstances Under the Fourth Amendment May Extend to the Need to Interview an Arrestee in Place - Lexology (registration)

Therewas enormously important Fourth Amendment news from the Supreme Court on Monday: The justices agreed to review the U.S. Court of Appeals for the 6th Circuits decision in Carpenter v. United States, one of the long-pending cases on whether the Fourth Amendment protects government access to historical cell-site records.

This is a momentous development, I think. Its not an exaggeration to say that the future of surveillance law hinges on how the Supreme Court rules in the case. Let me say a bit about the case, the issues it will decide and why it matters.

I. The Facts of the Case

Carpenter involves a string of armed robberies that occurred over a two-year period. A group of men (at least five of them) would go into cellphone stores armed with guns, order the customers and employees to the back, and steal the phones. Carpenter was the lead organizer of the conspiracy, and he often supplied the guns, acted as a lookout and would signal when each robbery was to begin.

One of Carpenters conspirators confessed to the crime and gave the government his cellphone number and the numbers of the other conspirators (16 numbers total). The government applied for three different court orders for the cell-site records associated with those numbers, which included Carpenters number. Specifically, the orders sought cell site information for Carpenters phone at call origination and at call termination for incoming and outgoing calls. The government obtained the orders under the Stored Communications Act. They complied with the statute, but the statute requires only reasonable suspicion and not probable cause.

The order that covered Carpenter was directed at his cellphone provider MetroPCS. MetroPCS produced 127 days of historical cell-site records. (Sprint produced another seven days of historical cell-site records for Carpenters phone from a time window when he was roaming and Sprint picked up his service instead of MetroPCS.) Together with the orders obtained, the records showed that that the phones of the alleged conspirators were within distances ranging from a half-mile up to two miles of the robberies at the time they occurred. Specifically, Carpenters phone was shown to be in communication with cell towers near four robberies over a five-month window.

II. The Legal Issues

Here is how counsel for the petitioner framed the question presented:

Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

And heres how the United States redrafted the question presented in its brief in opposition:

Whether the governments acquisition, pursuant to a court order issued under 18 U.S.C. 2703(d), of historical cell-site records created and maintained by a cellular-service provider violates the Fourth Amendment rights of the individual customer to whom the records pertain.

I gather, then, that the case will consider two distinct questions. First, is the collection of the records a Fourth Amendment search? And second, if it is a search, is it a search that requires a warrant?

Notably, neither side sought review of whether the good-faith exception applies if the answer to both of these questions is yes. The parties are asking only for a ruling on the merits, with any remedies decision bifurcated for review on remand if the Supreme Court reverses.

III. Why The Case Matters

The Carpenter case is tremendously important, I think. The structure of modern surveillance law is built on the idea that the contents of communications receive Fourth Amendment protection but that non-content metadata records about communications, and other third-party business records do not. That has been the rule since the 19th century for postal letters, and it has been the rule since 1979 for phone calls. Carpenter will help determine if that basic rule framework will remain, or if the Supreme Court will amend it somewhat or even dramatically change it.

Part of the importance of the case is that its not just about cell-site records. Although the case is formally about cell-site records, its really about where to draw lines in terms of what network surveillance triggers the Fourth Amendment and how the Fourth Amendment applies. The justices cant answer how the Fourth Amendment applies to cell-site records without providing a framework for how the Fourth Amendment applies to many other forms of surveillance, such as visual surveillance, obtaining traditional phone records, obtaining e-mail transactional records, obtaining credit card records and the like.

For example, readers will recall the debate over the mosaic theory of the Fourth Amendment. Among the issues likely to be pressed in Carpenter is whether the justices should adopt or reject the mosaic theory. Note that the question presented focuses on the fact that the records covered 172 days. Should the length covered by the records matter? Is evidence collection for a short time window no search that becomes a search because the records spanned a long time window?

Plus, remember that the justices will have two questions: what a search is, and when searches are reasonable. Most will focus on the first question, but note that the two issues go together. As I explained here, the broader the court interprets search, the more pressure there is to water down reasonableness. The narrower the definition of search, the stronger the reasonableness standard tends to be. This creates some interesting dynamics. For example, you might get a ruling that there is no search but that retains the traditional default warrant rule for searches. On the other hand, you might get a ruling that a search occurred but that authorizes a new category of warrantless surveillance. This is just speculation, of course, but I suspect the briefing will urge major doctrinal innovations on both questions.

IV. Why Did the Justices Take the Case?

Some will speculate that the Supreme Court would have taken the case only if it were going to reverse. I have no idea how the court will rule, but I tend to doubt that. If I had to guess, I would guess that the court took these cases because theyre really important. The lower court rulings are based on the third-party doctrine, and none of the current justices were on the court the last time the justices decided a case on the third-party doctrine. Its pretty sensible to have the current Supreme Court weigh in.

As it happens, I think the third-party doctrine is essential to technological surveillance in a digital age. As I see it, the doctrine is needed to maintain the essential balance on which Fourth Amendment law has been built and on which it evolves in response to new technology. Prominent alternatives, like the mosaic theory, strike me as a dead end. But it makes a lot of sense for the justices to review these cases and decide whether they agree and if not, identify what new framework should replace it.

V. Lots of Blogging Ahead

Finally, Ill probably be doing a lot of carpentry (that is, blogging about the issues raised in Carpenter) over the next few months. A lot of my academic work in the past decade has been about issues that touch on the case, so it will be really fun to see what the justices do.

Read the original here:
Supreme Court agrees to hear 'Carpenter v. United States,' the Fourth Amendment historical cell-site case - Washington Post