Mediaboss Marketing

from the striking-cold-irons-still-counterproductive dept

As courts seemingly have to remind school administrators (and their partners in unconstitutional crime, school police officers), students -- even minors -- still have constitutional rights. The First and Fourth Amendments are the most frequently violated, despite there being no lack of precedent upholding students' rights.

This latest rebuke of law enforcement overreach comes via the Colorado Court of Appeals (and via FourthAmendment.com). In this case, a Denver, Colorado student had his backpack warrantlessly searched by school security officers. This search resulted in the discovery of marijuana and paraphernalia, which led to juvenile charges against the minor, referred to in the opinion [PDF] as "C.C-S."

The reason the search was unconstitutional has a lot to do with how the school officers got it into their heads that C.C-S. should be detained and searched. The state of Colorado maintains an anonymous tip line called "Safe2Tell" which allows students and faculty to report suspicious activity or behavior to school officials.

The Safe2Tell tip that initiated this chain of unconstitutional events was old news by the time it was forwarded to DPS (Denver Public Schools) officials and, because of its origin, could not be corroborated.

A school security officer employed by Denver Public Schools (DPS) received a report that C.C-S., a student at a DPS high school, had been seen in a Snapchat video shooting a firearm out of a car window.

[...]

By the time the Snapchat video showing C.C-S. was reported to Safe2Tell on February 25, 2018, it was about one month old. At that point, no one was able to review the footage because videos posted on Snapchat automatically disappear from the platform after twenty-four hours, unless they are saved.

Nevertheless, school officials decided to act, relying on little more than this and another unsubstantiated (and unrelated) allegation.

Although unable to review the Snapchat video, the dean of C.C-S.s school told the school security officer that C.C-S. had a history of bringing things to school that he shouldnt, such as drugs and things like that.

"Drugs and things." Leaves a lot open to the imagination, which is what was exercised by school security officers, who took two uncorroborated reports and combined them into a search unsupported by probable cause.

At that point, the school security officer decided to search C.C-S., based on the Safe2Tell firearm tip, the deans comment, and the security officers policy of searching every student and their backpack when he received a Safe2Tell report that the student had either drugs or weapons. Once C.C-S. arrived at school, he was taken to an office for questioning by the school security officer, as well as a campus security officer, who was also employed by DPS but was stationed at C.C-S.s school. With the door closed, the DPS officers told C.C-S. about the information they had received from the Safe2Tell tip and told him they were going to search his backpack.

C.C-S. refused to consent to a search and, after further discussion, attempted to leave the office. The DPS officers would not allow him to leave, instead reiterating that they were going to search his backpack. After the campus security officer asked C.C-S. whether he was refusing to allow the search because he had drugs in his backpack, C.C-S. confessed that he had drugs in his backpack and handed it over to the officers to be searched.

That's not consent. That's the implication that a search is going to take place, with or without cooperation. Keeping someone in a room and refusing to let them leave pretty much takes consent out of the equation. That only makes things worse for the school officers and the case they thought they had built against C.C-S.

Rights are rights, and while they are limited on school campuses, they are not nonexistent. The officers needed at least reasonable suspicion to approach and search C.C-S. and they didn't even have that.

[W]e conclude that the Safe2Tell tip was insufficient to provide reasonable suspicion. We reach this conclusion for four reasons. First, as noted above, the tip was anonymous. Second, the information provided in the tip was stale. Third, because it was anonymous and stale, the limited information in the Safe2Tell tip did not provide reasonable suspicion that C.C-S. had committed or was about to commit a crime. And, fourth, the information about C.C-S.s past behavior at school did not corroborate the Safe2Tell weapons tip.

Information about someone seen on SnapChat a month ago isn't a good tip, or an actionable tip, or even a somewhat fresh tip. It may prompt some additional "keeping an eye on" by administrators but it cannot justify a seizure and a search, even on school grounds, and even with the district's apparently unconstitutional policy of searching every student that has been reported via a Safe2Tell tip.

The school dean's "tip" was no better and created no additional reasonable suspicion. The tip mentioned drugs, not weapons, and there was no information given that implied or stated the student had brought weapons onto campus before.

The state argued that this was asking too much from the Safe2Tell program, which guarantees students' anonymity. Au contraire, says the court. This program may be useful and aid in public safety efforts, but it cannot summarily revoke students' rights for these reasons or by its mere existence.

While we recognize the importance of Safe2Tells role in preventing school violence, investigations based on Safe2Tell tips by DPS security officers and other school officials must occur within the bounds of students Fourth Amendment rights.

As for the supposed "consent" to a search, the court says there was no consent.

[W]e conclude that the uncorroborated Safe2Tell tip did not justify detaining C.C-S. Because he was unreasonably detained, we may not rely on his admissions made during that unlawful detention to uphold the search of his backpack.

The state also argued that the exclusionary rule does not apply to juvenile cases or school security officers. Wrong again, says the court. The rule applies to government employees and their actions, which encompasses school administrators and school security officers.

We conclude that applying the exclusionary rule in school searches conducted by DPS security officers would deter Fourth Amendment violations. Those security officers perform quasi-law enforcement functions, inasmuch as the evidence they collect is often used in juvenile delinquency adjudications such as this one.

[...]

To apply the Fourth Amendments exclusionary rule to school searches is therefore a logical extension of Supreme Court precedent. Its application here is especially appropriate since school security officers, whether acting in concert with the police or not, are governmental actors.

There goes the evidence obtained during the illegal search which would be all of the evidence. Without it, all the government has is C.C-S., who may or may not have been the person seen by some student in some Snapchat video officers never viewed and which had vanished from the service long before the tip was sent in. The state has nothing to prosecute with. But maybe it has at least learned it can't treat students like detainees following extraordinary rendition. Students have rights and the government -- at least in this case -- gains nothing by ignoring them.

Thank you for reading this Techdirt post. With so many things competing for everyones attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise and every little bit helps. Thank you.

The Techdirt Team

Filed Under: 4th amendment, anonymous tips, backpack search, colorado, evidence, police, rights, school police, sro, students, tips

Follow this link:
Students Have Rights: Court Dumps Evidence After Cops Rely On A Month-Old Anonymous Tip To Search A Minor - Techdirt

A few days before the elections, a dozen law enforcement unions demanded an overhaul of New York state laws on bail and discovery.

The issue was prominent in the race for Nassau County district attorney, in which Republican Anne Donnelly defeated state Sen. Todd Kaminsky, a Democrat, who had voted for an overhaul of state bail laws that eliminated pretrial detention and monetary bail conditions for most misdemeanors and nonviolent felonies.

The law enforcement unions argued that even though the state Legislature subsequently made changes in the law, it still was allowing dangerous criminals to be released.

At a news conference on Oct. 29, the representative of the law enforcement unions said a recent decision in Suffolk County Court that struck down part of the law showed that the entire bail reform package needed to be overhauled.

On Oct. 22, Suffolk County District Attorney Tim Sini said that a law that allows criminal defendants to move for a court order granting them access to crime scenes, including an individuals home, had been deemed unconstitutional.Sini said the victim in the case would have had Fourth Amendment rights, the expectation of privacy, violated.

At the news conference,John Wighaus, president of the Nassau County Detectives Association, said: The decision that has been reported recently regarding the unconstitutionality of a portion of the discovery law, points out the complete failure of the entire package of extreme bail and discovery laws that were passed in Albany. In particular, the cashless bail law has been disastrous for law abiding citizens.

Supporters of bail reform had argued that the system of cash bail fell heaviest on the poor and members of minority groups who could not afford to post bail.

But at the news conference, Brian Sullivan, president of the Nassau County Correction Officers Benevolent Association, said: Our judges are powerless to detain the majority of dangerous suspects because of the cashless bail law. The courts are forced to turn loose dangerous inmates who are free to wreak more havoc on the community after their release. Something has to be done.

The law enforcement unions endorsed Donnelly in the district attorney race.

Go here to read the rest:
Police union officials demand overhaul of New York bail laws - Williston Times - The Island Now

By Chris Boyette, CNN

An amended lawsuit filed by the estate of Andrew Brown, Jr. alleges one of the officers who fatally shot him told investigators that he altered his gun after the incident and before the weapon was seized as evidence.

Brown, a 42-year-old Black man, was killed on April 21 by Pasquotank County deputies in Elizabeth City, North Carolina, as they were attempting to serve a warrant for his arrest.

District Attorney Andrew Womble announced in May that the deputies who killed Brown were justified in using deadly force, saying Brown recklessly drove at the officers on scene while trying to flee arrest.

The lawsuit alleges that Pasquotank County Sheriffs Investigator Daniel Meads told the North Carolina State Bureau of Investigation (SBI) during an investigation interview that he altered the gun he used to shoot at Browns vehicle while he was in a dark room inside Browns house and before his weapon was confiscated as evidence.

It is unclear what the lawsuit means by altered nor the impact that would have on the investigation.

The suit alleges Meads did not tell SBI investigators about this when they first interviewed him, and only told the investigators after it was seen on another officers body camera footage that he had removed his magazine inside Browns house.

Meads told SBI interviewers that he manipulated his magazine while inside Browns house in order to see how many shots he fired prior to surrendering his weapon as evidence, the lawsuit says.

A police detective from the town of Kitty Hawk, North Carlina, who was on the scene at the time told SBI investigators in an interview that Meads asked him to shine a flashlight on him in Browns house so Meads could count the remaining rounds in the magazine of his Glock-17, according to the lawsuit.

The detective also told SBI investigators Meads was stressing out about how many times he fired his weapon at Browns vehicle, the lawsuit says.

Meads attorney did not respond to CNNs request for comment.

Harry Daniels, a lawyer for the Brown estate, said the lawsuit was amended to include specific allegations against the officers involved because more detailed information came to light after the legal team gained access to the SBI investigation files.

The SBI told CNN that the files were not public record and would not allow CNN access.

The lawsuit now names as defendants Meads, Pasquotank County Sheriff Tommy Wooten, Deputy Sheriff II Robert Morgan, Cpl. Aaron Lewellyn and Western Surety Bonding Company, an insurance company for the department.

Attorneys for Morgan and Lewellyn did not respond to CNNs request for comment, nor did Western Surety Bonding Company. Wootens attorney Christopher Geis said he would be filing a response.

We will be filing an answer to the allegations when the time comes, and that answer will speak for itself, Geis said.

The arrest warrant for Brown was unlawful because it was not signed by a judge, the lawsuit claims.

The suit also says the two ranking officers initially on the scene when police confronted Brown Pasquotank County Sheriffs sergeants told SBI investigators in each of their interviews that they did not fire their weapons because they did not see any indication that Brown had a weapon. One of them told investigators he did not think Browns car was going to hit him, the lawsuit says.

The suit, which does not name the district attorney as a defendant, claims Womble knew or should have known about various statements made in the SBI interviews cited in the lawsuit.

Womble did not respond to CNNs request for comment.

The amended lawsuit makes allegations of assault and battery, wrongful death and wrongful death negligence / gross negligence against all individual defendants.

Plus, it makes allegations of assault and battery against Wooten in his official capacity as sheriff and allegations of excessive force in violation of the Fourth Amendment against Meads, Lewellyn and Morgan.

The suit requests a trial by jury and seeks more than $30 million in compensatory and punitive damages.

The-CNN-Wire & 2021 Cable News Network, Inc., a WarnerMedia Company. All rights reserved.

See the original post here:
Lawsuit over Andrew Brown Jr's killing now alleges an officer's weapon was altered after shooting and before it was admitted as evidence - KTVZ

The U.S. is now more than 20 years beyond the Patriot Act of October 2001. The immediate aftermath of 9/11 brought a heavy U.S. state focus on Arabs and Muslims in the U.S., rationalizing an expansion of policing and surveillance activities against them. It also inspired the convergence of shared struggles for liberation out of a growing consensus that we cannot abolish policing without abolishing U.S. militarism and empire building.

The anything goes context of 9/11 opened up possibilities for expanded forms of policing and surveillance that are unconstitutional. The National Security Entry-Exit Registration System (NSEERS), also known as special registration, put in place by the Department of Justice in 2002, targeted Arabs and Muslims as well as those from the Middle East and South Asia. Overly broad interpretations of material support laws denied people generally Arabs and Muslims their freedom and even threatened some forms of humanitarian aid.

But none of this was entirely new. All this was preceded by President Richard Nixons Operation Boulder, which law professor Susan M. Akram has described as perhaps the first concerted US government effort to target Arabs in the US for special investigation with the specific purpose of intimidation, harassment, and to discourage their activism on issues relating to the Middle East.

Ironically, Timothy McVeighs 1995 Oklahoma City attack opened the door to the Clinton administration pushing forward a legislative effort allowing the government to use evidence from secret sources in deportation proceedings for aliens suspected of terrorist involvement. Under the measure, the government would not have to disclose the source of the damaging information to the person whom it is seeking to deport, The New York Times reported. A white extremist, then, had carried out a deadly bombing, but it was Arabs and Muslims (including Black Arabs and Black Muslims) who faced the prospect of deportation without ever being able to confront their accuser or even know the identity of those accusing them.

According to the ACLU:

The 1996 Antiterrorism and Effective Death Penalty Act established a new court charged only with hearing cases in which the government seeks to deport aliens accused of engaging in terrorist activity based on secret evidence submitted in the form of classified information. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act expanded the secret evidence court so that secret evidence could be more easily used to deport even lawful permanent residents as terrorists.

As Arab and Muslim communities were subjected to institutionalized racial profiling, this too frequently encouraged individual anti-Arab and Islamophobic actors who further intimidated and committed acts of violence against Arab and Muslim individuals in everyday life. Between 2000-2009, these violent incidents increased by over 500 percent; since 2016, 484 incidents of hate-motivated violence have been reported and many continue to remain unreported. In the Middle Eastern, North African and South Asian regions, of course, the U.S. military killed people en masse while engaging in torture. The U.S. government also supported authoritarian dictators like Egypts Hosni Mubarak who would further the U.S. imperialist agenda and simultaneously collaborate in the ongoing colonization of Palestine and siege of Gaza.

According to the Project on Government Oversights Jake Laperruque, the U.S., in its rush to crack down on these domestic communities, swept up international communications on an enormous and unprecedented scale. Laperruque also notes that internal U.S. communications were surveilled, as were internet metadata.

When eventually disclosed, this surveillance troubled and infuriated people across the political spectrum, some who cared about ending racial profiling of Arabs and Muslims, and some who generally had spent years inflaming such hatred. Many strands of society were incensed that their communications were being monitored by the government. Yet those with history in U.S.-based Global South liberation movements who were targeted by programs like Nixons Counter-Intelligence Program (COINTELPRO) or those whose ancestors were killed via collaborations between the KKK and the FBI knew all too well that the Constitution was meant to protect white supremacy rather than protecting us all. At the same time, the Patriot Act truly alarmed liberals and radicals alike in its potential to perpetrate a massive expansion in policing, surveillance and repression.

The George W. Bush administration had effectively circumvented the Fourth Amendment with its protections against unreasonable searches and seizures.

Attempts to override the entirely bankrupt legislative action of the USA Freedom Act of 2015, was a consequence less out of concern over targeting Muslims and Arabs than anger over the widespread sweeping up of so much information about U.S. citizens read: white people.

I lived through these past 20 years between communities in California, Illinois and Michigan. The fear was real. While working-class Arab Muslim immigrant men over the age of 16 were forced to register at their local Immigration and Naturalization Service office as part of the NSEERS program, their loved ones stood outside wondering if they would ever see them again.

The reports of violence against Arabs and Muslims and those perceived to belong to those categories were terrifyingly routine. Some stories reached the mainstream media; most circulated simply through word of mouth.

Now, in 2021, following the defeat of former President Donald Trump and his open promotion of anti-Muslim policies, we are witnessing the culmination of efforts led by Muslims and Arabs in the U.S. to build community-based power beyond the psychological and emotional incarceration endured between the Bush and Trump years.

The Arab Resource & Organizing Center in Californias Bay Area along with the Arab American Action Network in Chicago have for years fought back in coalition to support anti-imperialist and abolitionist principles. Left-leaning Arab and Muslim movements are affirming that just because Trump is out doesnt mean these efforts will relent under President Joe Biden, especially not with his interventionist history and long years of support for Israelis colonial policies that have been killing, containing and displacing Palestinians with U.S. weaponry.

These organizations recognize that U.S. empire-building connects movements fighting anti-Black police violence, those pressing back against anti-Arab U.S. militarism and the war on terror, as well as groups resisting the militarization of the border and the ongoing colonization of Native land.

The recent news out of Virginia Beach of an ongoing racist attack on a Black familys home with music blaring racial slurs and monkey sounds as strobe lights flashed at the house while authorities dithered sounded all-too-familiar to me. It reminded me of my own research in 2021 with the Institute for Research on Race and Public Policy in the Chicago area on the status of racial justice for Arab Americans.

I had been connected to a Muslim woman who was harassed by her neighbors for three years, notwithstanding a restraining order. She told me she felt like a hostage in her own home and police were unwilling to stop the ugly attacks from neighbors coming up to the window and shouting, Fk Arabs, fk Muslims. This would be followed by calls for the family to get out of the U.S.

The animosity both families have faced is painful and traumatic and stems from the same root cause U.S. racial capitalism and empire building. But younger generations of Black people, Arabs and/or Muslims have also in the last decade recognized more than ever the necessity of conjoining our struggles against racist police violence.

This was seen most visibly in Ferguson, Missouri, but is also witnessed, for instance, in Palestinian-Black solidarity efforts across the country as young Palestinian Arab activists organize against police violence disproportionately targeting Black people, while Black activists align with the Palestinian call for boycott, divestment and sanctions against Israel.

As the Palestinian Youth Movement said in its 2014 statement of solidarity with Ferguson: Whether the PATRIOT ACT or COINTELPRO, the targeting and criminalization of our communities must end now. These efforts have extended through defund the police and abolition efforts uniting both communities.

Shortly after 9/11, I remember the national coalitions like Racial Justice 9/11 that grew overnight when tens of social movements affirmed their unity in the face of the expanding powers of the U.S. nation-state. Today, similar coalitions are inspired by the shared concern over the ways U.S. counterinsurgency tactics that repress movements have expanded, violently justifying the repression of Black, Indigenous and people of color (BIPOC)-led groups like the Movement for Black Lives.

When the Bush administration consolidated its internal war on Arabs and Muslims with the Patriot Act, it helped show Trump the power to move a portion of the U.S. public toward increasingly outward-facing white supremacy. Yet it also set in motion new coalitions. These coalitions have urgently grown out of the imperialist and racist policies implemented first by President George W. Bush, and then even more openly by Trump.

I wouldnt wish those first traumatic months in 2001-2002 on anyone. Yet the solidarity resulting at least in part from the overreach and unconstitutional nature of the Patriot Act, followed by the racism of the Trump administration, gives me a measure of hope.

For all Trumps efforts to roll back previous social movement wins, many breakthroughs came out of his 2016 presidential victory. More and more grassroots mutual aid movements have materialized, affirming the necessity of growing practices of collective love and reciprocity as alternatives to state violence. Two Muslim women, one Palestinian and one North African, entered the U.S. Congress in 2019 in Palestinian American Rashida Tlaib and Somali American Ilhan Omar. They were joined earlier this year by Rep. Cori Bush, who was active in the Ferguson demonstrations and has openly spoken of solidarity between Black Americans and Palestinians.

In the midst of the Israeli onslaught against Gaza this past May, Representative Bush tweeted: The fight for Black lives and the fight for Palestinian liberation are interconnected. She added: We oppose our money going to fund militarized policing, occupation, and systems of violent oppression and trauma. Tellingly, she spoke of being anti-apartheid.

Their voices in the halls of Congress are unprecedented. The effort to undermine them is intense. Yet we must remember that the long U.S.-led war on terror is an extension of the U.S.s colonial, expansionist and racial capitalist project, rather than an exception. We cannot get stuck in celebratory hope after the defeat of Trump. Presidents Bill Clinton and Barack Obama were not only complicit in the war on terror but also helped expand it.

As Kali Akuno, Brian Drolet and Doug Norberg posted on Facebook on October 27, in their critique of efforts to save democracy, this stance is not an argument to avoid or ignore fighting the further advance of fascistic authoritarianism. It is a critique of a view that restricts people to fighting against certain variants of capitalist governance to the exclusion of fighting against the capitalist system itself.

If anyone recognizes that President Biden does little to help the U.S. achieve democracy, equality or diversity, its my Arab immigrant community. Further, there is no sign of social transformation with Trump continuing to loom on the 2024 horizon and racist provocateurs continuing to organize and contest the 2020 election of a centrist candidate. This is why we need to be willing to imagine a radically alternative future.

Twenty years ago, I remember Arab activists like Rana Elmir demanding an end to the Patriot Act. Forced to reckon with it, they understood its potentially dangerous future. They shouted at protests that it not only expands the containment, repression, and profiling of Arabs and Muslims, but could also massively expand the U.S.s power to repress all progressive and BIPOC communities.

So here we are. Nicole Nguyen, expert on surveillance and the war on terror, reminds us that by expanding the concept of the violent extremist the United States has repressed resistance against the war on terror and resistance against the police.

In the face of this repression, we have no choice but to expand our practices of solidarity, creating hope through the convergence of shared struggles for liberation rooted in collective BIPOC traditions of care, nurturing relations with the land and each other, and in commitments to horizontal, non-hierarchical self-determination.

Read more from the original source:
20 Years After Patriot Act, Surveillance of Arabs and Muslims Is Relentless - Truthout

The Supreme Courts 2018 decision in Carpenter v. United States was widely considered to be a sea change in Fourth Amendment law. Carpenter held that individuals can retain Fourth Amendment rights in information they disclose to a third party, at least in some situations. Specifically, cell phone users retained Fourth Amendment rights in their cell phone location data, even though that data was disclosed to their cell phone companies.

This is a potentially revolutionary holding in the internet era, when virtually every form of sensitive digital information is exposed to a third-party service provider at some point. Carpenter raises the possibility that the Fourth Amendment may effectively protect sensitive digital data. But Carpenter is a notoriously vague opinion, and scholars have reached conflicting conclusions about its meaning and impact. What does Carpenter mean, and what will it mean in the future?

In a recent article forthcoming in the Harvard Law Review, I attempt to shed some light on Carpenter and its jurisprudential impact. I coded and analyzed all 857 federal and state judgments applying Carpenter through March 31, 2021. In doing so, I was able to identify the factors that drive modern Fourth Amendment search decisions and describe a nascent Carpenter test now emerging in the lower courts. I also examined overall compliance with Carpenter, finding that courts have largely embraced it, with almost no overt criticism and relatively little indirect noncompliance. And I encountered a shockingly high rate of cases resolved based on the good faith exception to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. These findings can help resolve some of the mysteries of Carpenter, illuminating both the present state of the law and the paths along which it will likely continue to develop.

The Carpenter Factors

Prior to Carpenter, information that an individual disclosed to a third party was not protected by the Fourth Amendment. Carpenter imposed at least some limits on this third-party doctrine going forward. But it did not set out a clear test for when third-party data is covered by the Fourth Amendment.

It did, however, describe several factors that were relevant to its decision in the cell phone tracking context. The court discussed the revealing nature of cell phone data, which could provide an intimate window into an individuals life and activities. It addressed the large quantity of location data available to the government, encompassing numerous data points per day for potentially long periods of time. It referred to the large number of people who would be affected by unrestrained cell phone surveillance. It described how cell phone data was automatically disclosed to a cell service provider and how cell phones were largely inescapable in modern life, meaning that the disclosure of cellular location data to third parties was essentially involuntary. And it detailed the low cost of cell phone surveillance, which made detailed location surveillance easy and cheap compared to traditional investigative methods.

Any or all of these factors might play a pivotal role in future cases. But, in Carpenter, the court gave no concrete test to guide future decisions; it merely discussed several principles that appeared important in the context of cell phone location tracking. The decision left it for future courts to determine how these principles should apply to novel Fourth Amendment questions. And so, several years after Carpenter was decided, I conducted the examination of lower court decisions described above.

In the dataset, 217 decisions reached a determinative, yes-or-no ruling on a Fourth Amendment search question. A majority (129) of these decisions discussed at least one of the Carpenter factors in reaching a judgment. For example, in United States v. Trice, the Sixth Circuit applied the factor that considers the amount of data captured, and found that it disfavored the defendant. Police officers had installed a hidden camera near a suspects apartment door and recorded four short clips of footage over a six-hour period. The court noted that this technique captured far less data than the detailed, prolonged cell phone tracking at issue in Carpenter. Ultimately, the court ruled that the use of the camera was not a Fourth Amendment search.

Overall, courts cited a variety of factors in cases resolving Carpenter questions, but they rarely discussed all or most of the factors together. Instead, courts often discussed the factors that influenced their reasoning and ignored the other factors, even when those factors might have pointed in the same direction. In determining which factors were most prevalent, my analysis found that the revealing nature of the data, the amount of data collected, and the automatic nature of data disclosure emerged as the most influential factors. The courts addressed the cost of surveillance and the inescapable nature of a technology only occasionally, although those factors were generally influential when they were addressed. Surprisingly, the number of persons affected by a surveillance practice was rarely discussed and had virtually no effect on case outcomes. Indeed, several courts overtly rejected this as a factor.

The revealing nature and amount of the data collected by the government were the most commonly used factors in the cases. Revealing nature was mentioned in 93 decisions, and amount was mentioned in 116 decisions. These factors were also strongly, and statistically significantly, correlated with case outcomes.

Whether a persons data had been automatically disclosed to a third party, or instead had been disclosed through a voluntary act, was a less common but still influential factor in the cases, appearing in 61 decisions and correlating significantly with case outcomes. This factor generally led courts to deny Fourth Amendment protectionsit was found to disfavor defendants in 82.6 percent of cases in which it appeared.

Moreover, as I have argued elsewhere, relying on concepts like automatic disclosure is often problematic. The disclosure of data to services like Uber, Google Maps, dating apps, smart home devices, websites and countless other providers is in theory voluntary and avoidable, but such disclosures are in practice an important part of peoples lives. Moreover, optional technologies such as dating apps, smart home devices and DNA analysis services often capture especially intimate personal information. And voluntariness approaches can create substantial inequalities in Fourth Amendment law. Technologies that are avoidable for most people are often unavoidable for others, including the disabled, the poor and other disadvantaged populations. For all of these reasons, courts should be cautious in definitively adopting automatic disclosure of data as a factor in a mandatory Carpenter test.

By contrast, the cost of surveillance is a potentially useful factor that courts should consider adopting in more cases. Conceptually, cost dovetails with amount. When the government is able to capture large amounts of data at a low cost, the potential for large-scale surveillance raises serious concerns about individual liberty and government power. By assessing the general cost of a surveillance practice, courts may be able to address concerns about large-scale surveillance programs via a relatively simple and administrable analysis.

Lower Court Compliance With Carpenter

Across more than 800 cases, courts have largely embraced Carpenter and its analysis. They have engaged in almost no overt criticism of the decision and its unique approach. And they have demonstrated relatively little indirect noncompliance. The law is still developing, but Carpenter appears to be workable in the lower courts.

Since June 2018, very few cases addressing the third-party doctrine have failed to cite Carpenter, suggesting that recognition of the case is widespread. There is circumstantial evidence of some courts engaging in indirect noncompliance with Carpenter. Indirect noncompliance refers to courts intentionally misinterpreting controlling precedent in order to reach a preferred outcome. In the dataset of 217 determinative search decisions, 29 decisions (13.4 percent) applied a strong version of the third-party doctrine that was arguably in tension with the Carpenter opinion, which imposed a meaningful limit on that doctrine. These opinions might represent a small pocket of resistance toward Carpenter, albeit a subtle, indirect resistance.

But judicial inertia toward a prior status quo is a common phenomenon, following a major legal change, and its occurrence here should not be too surprising. And, as theories of indirect noncompliance would predict, indirect noncompliance with Carpenter appears to be decreasing over time. The proportion of determinative cases that invoke a strong third-party doctrine has fallen in recent years, as judges become more familiar with Carpenter. In any event, the vast majority of cases show no explicit or even implicit resistance toward Carpenters reformation of the third-party doctrine.

The Enormous Impact of the Good Faith Exception

One of the most surprising findings of my analysis was the remarkable impact of the good faith exception on post-Carpenter case outcomes. The good faith exception provides that evidence obtained in good faith reliance on a statute, warrant or other authority will not be excluded, even if the authority was incorrect and the search for evidence was unconstitutional. The idea is that police officers relying on existing legal authority are acting in good faith and therefore cannot be deterred effectively by the exclusion of evidence. There were 399 decisions in the dataset that applied Carpenter substantively in a Fourth Amendment search case, and 144 of these were resolved based on the good faith exception without addressing the search issue, a rate of 36.1 percent. The vast majority of these good faith cases involved government officials obtaining historical cell phone location data without a warrant, the practice declared unconstitutional in Carpenter. In other words, a surprisingly large percentage of post-Carpenter cases involve unconstitutional government searches for which the persons affected have no meaningful remedy.

To be sure, the proportion of cases resolved via the good faith exception will decrease over time, as fewer cases are tried involving pre-Carpenter searches of cell phone data. But roughly 30 percent of cases were still being resolved on good faith grounds in 2020 and 2021, years after Carpenter was decided. Ultimately, it is likely that hundreds of criminal defendants will be convicted on the basis of searches that Carpenter deemed unconstitutional.

The remarkably high proportion of cases resolved via the good faith exception following a major Supreme Court decision should spur a reexamination of the exception. Current law may incentivize the police to aggressively apply new surveillance practices in order to secure convictions, even when those practices are likely unconstitutional. These incentives are examined in more detail in my article. They often involve police reliance on an old, general-purpose statute that is used to justify new and invasive forms of surveillance. Lower courts have applied the good faith exception broadly to justify novel surveillance practices, even when those practices have never been addressed by an existing statute or case. My studys findings should raise alarms about the potential for the good faith exception to incentivize widespread unconstitutional surveillance on the basis of flimsy reliance claims.

***

My articles detailed examination of post-Carpenter Fourth Amendment law yields other insights as well. It breaks down the cases by jurisdiction and examines changes in outcomes over time, while addressing the potential impact of selection effects. It examines differences in federal and state decisions, drawing lessons for federalism theory and debates regarding the capacity of state courts to address federal constitutional questions. It also analyzes the effects of political affiliation and exposure to judicial elections on case outcomes. And it suggests alternative approaches that can help to clarify and improve Fourth Amendment jurisprudence going forward. Indeed, the study opens the door to a variety of new proposals about the future course of Fourth Amendment law, grounded in a deeper knowledge of courts current practices.

Read this article:
The Impact of Carpenter v. United States in the Lower Courts and the Emerging Carpenter Test - Lawfare