The Supreme Court took on a number of cases this year which have attracted a lot of media and legal attention.  The case involving same-sex marriage has already garnered many headlines and at last count over one hundred ten amicus curaie briefs, while the case discussing tax subsidies in the Affordable Health Care Act has widespread political and economic implications.   In contrast, this term’s criminal procedure cases deal with narrow, technical issues that have mostly flown under the media radar.  But even in a relatively obscure group, the case of Grady v. North Carolina, which was quietly decided in a brief five-page per curia decision last week, surely ranks as the most obscure.  Grady dealt with an interesting Fourth Amendment question: whether attaching an GPS-tracking ankle bracelet to a convicted sex offender constitutes a “search” under the Fourth Amendment.  But the ultimate decision in the case turned on a relatively obvious and well-established point of law: that the Fourth Amendment applies to civil as well as criminal cases (see Ontario v. Quon and Camara v. Municipal Court), and so the North Carolina court was in error when it dismissed the case merely because it was civil in nature.  Thus, the per curiam decision and the dearth of outside interest in the case.

Ankle monitor

Nevertheless, the Grady decision has a couple of interesting aspects to it.  First, it is now the third case to apply the “property rights” test for a search (after Jones, which held that attaching a GPS device to a car was a search; and Jardines, which held that bringing a drug dog to the front porch to sniff for contraband was a search).   (The property rights test defines a search as “physical occupation of private property by the government with the intent to gather information,” which surely applies in Grady).   And unlike Jones and Jardines, the  majority decision does not even mention the Katz test with regard to Grady’s challenge, even to say (as it did in the plurality in Jones and the majority in Jardines) that it need not reach the question of whether the government action invaded the defendant’s reasonable expectation of privacy.  And unlike Jones and Jardines, there was no concurrence specifically describing how the government action would fare under the Katz test.  As the Court stated in Jardines, “[o]ne virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy.”  In this case, the property-rights test made the case so easy that there was no need to even refer to the more traditional Katz test when deciding the case.

The Justices’ decision to not mention the traditional Katz test does not mean the Katz test has any less support than before, of course–in both Jones and Jardines, the Court mentioned that the property rights test was meant to supplement, not replace, the reasonable expectation of privacy test.   And there are plenty of recent cases (such as Riley v. California or Maryland v. King) which relied on the Katz test.  But anyone who thought (or hoped) the property rights test would fall into disuse will now be sorely disappointed–it has now been used to decide three Fourth Amendment cases in the last four years.

Grady re-affirms the property rights test, it also unintentionally highlights the absurdity of using the test when the Katz test could just as easily–and more intuitively–resolve the case.  This absurdity was present in Jones, which held that the Fourth Amendment violation occurred when the government “physically intruded” by attaching of a small device to the underside of the defendant’s car, rather than when the government monitored every location the car travelled to for the next twenty-eight days.   It was present in Jardines, when the Court held that the police officer  violated the defendant’s rights when he stood on the porch with a dog, rather than (as in Kyllo) when he used an unusual tool to gather private information about the inside of the defendant’s home.  But the absurdity is most obvious in Grady.  Here is an individual whose location–in public and in private–will be tracked by the government for the rest of his lifeAnd yet the Supreme Court has held that his Fourth Amendment rights would be violated because the government spent a few seconds attaching a bracelet to his ankle.  Almost anyone who reads this case–lawyer or lay person–will be surprised that this is now the focus of Fourth Amendment jurisprudence.  This case is just as “easy” to decide when using the Katz test; there is no question that monitoring a person’s movements in private violates that person’s reasonable expectation of privacy.  But the Court seems determined to always use the Jones property rights analysis first, even if it seems counter-intuitive to do so.

None of this helps Mr. Grady, of course.  Although the Court held that attaching the ankle monitor was a search, it remanded the case to determine whether attaching such a a monitor to a convicted sex offender is reasonable.  Given the Court’s recent decisions on reasonableness and on sex offenders, Grady should not be too hopeful.

 

In recent months the New York Times and the Washington Post have run articles about cell tower simulators–devices which intercept cell phone data by “tricking” the target’s cell phone into believing it is communicating with a legitimate cell phone tower.  These devices–also known as a “Stingray” or “Kingfish”–are able to locate a cell phone, download its metadata, and even eavesdrop on the calls or texts which are being sent.  However, the law enforcement agencies which use cell tower simulators are doing their best to keep the details of their use (or even the fact of their use) secret, in accordance with non-disclosure agreements that the FBI requires local agencies to sign.   In a particularly interesting development, prosecutors in a Florida case were ordered by a judge to provide details of their use of the device in an armed robbery case which carried a four-year minimum sentence.  In order to avoid revealing the information, they allowed the defendant to plea to a second-degree misdemeanor and receive 6-months probation.

This secrecy has raised obvious concerns among privacy advocates.  The ACLU has filed a number of lawsuits seeking more information about the use of cell phone simulators.   Two senators have sent a letter to the FBI demanding more information about how and when these devices are used.  But the secrecy may be justified given the types of countermeasures that are becoming available to thwart the cell tower simulators.

imsi-catcher

First, a brief description of the technology involved with cell tower simulators.  Technically they are called International Mobile Subscriber Identity (“IMSI”) catchers, because they identify the IMSI of the suspect’s cell phone and use it to intercept outgoing information from the phone.  As described in a recent Popular Science article, IMSI catchers are essentially

radio-equipped computers with software that can use arcane cellular network protocols and defeat the onboard encryption. Whether your phone uses Android or iOS, it also has a second operating system that runs on a part of the phone called a baseband processor. The baseband processor functions as a communications middleman between the phone’s main O.S. and the cell towers. And because chip manufacturers jealously guard details about the baseband O.S., it has been too challenging a target for garden-variety hackers….

But for governments or other entities able to afford a price tag of “less than $100,000,” says Goldsmith, high-quality interceptors are quite realistic. Some interceptors are limited, only able to passively listen to either outgoing or incoming calls. But full-featured devices like the VME Dominator, available only to government agencies, can not only capture calls and texts, but even actively control the phone, sending out spoof texts, for example. Edward Snowden revealed that the N.S.A. is capable of an over-the-air attack that tells the phone to fake a shut-down while leaving the microphone running, turning the seemingly deactivated phone into a bug.

Standard cell phone network protocol requires the cell phone to authenticate itself to the network, but does not require the network to authenticate itself to the cell phone, thus allowing an IMSI catcher to access the cell phone as long as it can decode the baseband operating system.  This is the security hole that IMSI catchers are able to exploit.

Although these devices have caused consternation among privacy advocates, they do not really present any new or challenging legal issues.  Under both statutory and constitutional law, it doesn’t matter what method law enforcement agents use to conduct their surveillance; what really matters is the type of information they are obtaining.  If law enforcement officers are listening in on our cell phone conversations, or reading our text messages as they are sent through the network, they need to obtain a Title III order under the Wiretap Act, demonstrating probable cause, the ineffectiveness of alternate surveillance methods, and minimization procedures.  If they are merely collecting our telephony metadata such as outgoing dialed numbers, they merely need to certify that the information is “relevant to an investigation.”  These standards exist whether law enforcement officers are obtaining the information using a modern Stingray device or an old fashioned wiretap or pen register system.  Thus, the warnings from some privacy advocates that these devices “allow cops to gather your data without a warrant or consent” are misplaced.  Law enforcement agents have always had the ability to gather this type of information, and for decades they have faced more or less the same legal standards in obtaining court permission to gather it.   IMSI catchers do allow them to obtain the information more quickly and (probably) more cheaply, but if they do so without meeting the proper legal standard, they are still violating the law and they are subject to civil penalties.

But what about the secrecy that shrouds the use of these devices?  The FBI claims that disclosure of any details about the technology would assist criminals and terrorists who want to thwart the technology and use countermeasures to prevent law enforcement from conducting the surveillance.  This turns out to be a legitimate concern; there are a number of devices already in existence that detect the use of IMSI catchers.  Last year the Washington Post ran an article describing Cryptophones, which sell for $3,500 and will alert the user if an IMSI catcher has locked onto their cell phone.

This is only the most recent development in a technological arms race between police and criminals that has been going on for over a century.  Telephones themselves were the first salvo in this battle, dramatically increasing our own privacy and at the same time allowing criminals to communicate quickly and confidentially with each other without leaving their home.  Then police began to wiretap telephones, in order to be able to even the odds (and gain access to information they never might have been able to have before).  Then came cell phones, and then disposable cell phones, again making it easier for criminals to avoid surveillance while conducting their activities.  Now police have a cheaper, easier way to monitor cell phone activity after they obtain a court order allowing them to do so.  It makes sense for the police to try to maintain this ability for as long as possible–though soon enough, devices like Cryptophones will neutralize this ability.  But the less the police say about the details of the technology, they longer they can use the technology effectively.

This week the foundation that runs Wikipedia filed a lawsuit against the National Security Agency (“NSA”), arguing that the “upstream” internet surveillance conducted by the NSA violates the agency’s statutory authority, as well as the First and Fourth Amendments to the Constitution.  This is only the latest in a series of legal actions against the NSA in the wake of the revelations about its surveillance by Edward Snowden.  The organization Pro Publica has complied this helpful list which describes thirty-eight different lawsuits that have been filed since 2006 against the NSA, other branches of the Obama administration, or private companies who were complying with NSA orders.  Most of these lawsuits can be roughly divided into four different categories:

(1) The first wave of cases, from 2006 to 2008, which alleged that the government surveillance programs violated the First and Fourth Amendment.  These cases were all effectively disposed of by the 2008 Supreme Court decision of Clapper v. Amnesty International, in which the Supreme Court held that the plaintiffs lacked standing because they could not prove that they themselves had been surveilled by the government.

(2) Lawsuits which seek to release information–either forcing the NSA to reveal more information about its surveillance program, or permitting private companies to reveal the fact that they have provided information to the NSA.  For the most part, these lawsuits have been successful, although many are still pending.

(3) Criminal defendants who are challenging the use of covert NSA surveillance evidence in their case.  Many of these cases are still pending, but so far none have been successful.

(4) A second wave of cases, post-Clapper v. Amnesty International, in which various organizations claim that the NSA surveillance programs violate its statutory authority and the Constitution.  The new case filed by Wikimedia falls under this category.

There are three separate NSA programs that are being challenged by this second wave of lawsuits.  The first is the “bulk metadata collection” program, in which the NSA collects massive amounts of non-content data from private companies, such as telephone numbers, email addresses, and other “address” information.  Because the NSA was collecting this information pursuant to Section 215 of the USA Patriot Act, this surveillance is sometimes referred to as “Section 215 collection.”  The second program is codenamed “PRISM,” and it involves the NSA collecting information that is stored by private companies (Microsoft, Facebook, Google, Apple, etc.).  PRISM data included content information, but (allegedly) the surveillance would only take place if the NSA agent has a “reasonable belief” (defined as at least 51% assurance) that the specified target is a foreign national who is overseas at the time of the data collection.  Because this program is allegedly authorized by Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), it is sometimes referred to as “Section 702 surveillance.”  The third program is codenamed “UPSTREAM,” and it involves realtime interception of data and communication flowing across the fiber cables and other infrastructure of the internet (sometimes called the “backbone” of the internet).  The UPSTREAM program collects large amounts of data as it is transmitted, but then uses software filters to filter out purely domestic transmissions and then further filters the data to look for specific target words that would make the message of particular interest to the NSA.

upstream-slide    prism-slide-2

With the new Wikipedia lawsuit, there are now five lawsuits pending in federal court which challenge these programs:

Jewell v. NSA (filed in 2008) — This case was filed in the Northern District of California by the Electronic Frontier Foundation, an advocacy group for digital privacy, on behalf of Carolyn Jewel and other AT&T customers.  The plaintiffs were seeking an injunction against the NSA’s bulk collection of telephone metadata and against the NSA’s UPSTREAM  surveillance program.  The case was originally dismissed in 2010 for lack of standing, but was re-instated by the Ninth Circuit in 2011.  Most recently, the plaintiffs suffered a setback in February of 2015 when the district judge granted the government’s motion for summary judgment on the issue of UPSTREAM surveillance, holding that the publicly available information was not sufficient to support the plaintiff’s standing in the case, or to adjudicate the substantive Fourth Amendment issues:

Notwithstanding the unauthorized public disclosures made in the recent past and the Government’s subsequent releases of previously classified information about certain NSA intelligence gathering activities since 2013, the Court notes that substantial details about the challenged program remain classified. The question of whether Plaintiffs have standing and the substantive issue of whether there are Fourth Amendment violations cannot be litigated without impinging on that heightened security classification. Because a fair and full adjudication of the Government Defendants’ defenses would require harmful disclosures of national security information that is protected by the state secrets privilege, the Court must exclude such evidence from the case.

The trial court noted that this was a “frustrating” ruling:

The Court is frustrated by the prospect of deciding the current motions without full public disclosure of the Court’s analysis and reasoning. However, it is a necessary by-product of the types of concerns raised by this case. Although partially not accessible to the Plaintiffs or the public, the record contains the full materials reviewed by the Court. The Court is persuaded that its decision is correct both legally and factually and furthermore is required by the interests of national security.

Notwithstanding this recent ruling, the Jewell case is still pending, since the court only granted summary judgment on the UPSTREAM surveillance question, not on the bulk collection of telephone metadata.
Klayman v. Obama (filed in 2013) — This case was filed in the District of Columbia District Court by customers of Verizon Wireless, and it challenges the NSA’s bulk metadata collection program.  In December of 2013, District Court Judge Leon ruled in favor of the plaintiffs and granted an injunction that would bar the NSA from continuing the surveillance.  The judge then stayed the injunction pending appeal.  The most controversial aspect of Judge Leon’s opinion was his rejection of the Supreme Court case Smith v. Maryland, which held that the Fourth Amendment does not protect telephone numbers that an individual dials, both because of the third party doctrine and because the telephone numbers are merely “address” information as opposed to “content” information.  The government understandably relied heavily on Smith in its argument that the surveillance program did not violate the Fourth Amendment, but Judge Leon essentially held that Smith‘s reasoning–and therefore, presumably, its holding–was hopelessly outdated:

The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable. 

The case is now on appeal to the D.C. Circuit, and oral argument took place in November of 2014.

 

ACLU v. Clapper (filed in 2013) — This case was filed in the Southern District of New York by the ACLU as Verizon subscribers, challenging the NSA’s bulk metadata collection program.  In December of 2013, just a few days after Judge Leon ruled against the government in Klayman, Judge William Pauley ruled in favor of the government in this case.   Judge Pauley cited Smith v. Maryland as binding Supreme Court precedent, and also noted the necessity of this kind of surveillance in the modern world:

No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific, Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the Government’s counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda’s terror network.

The case is now on appeal to the Second Circuit, and oral argument took place in September of 2014.

 

Paul v. Obama (filed in 2014) — This is a lawsuit filed in the District of Columbia District Court  by Senator Rand Paul and FreedomWorks, challenging the warrantless collection of cell phone records and metadata by the NSA.  it is currently pending in the D.C. District Court.  Although this lawsuit has more political overtones than the others, since the lead plaintiff is likely to be a contender for the Republican nomination in the 2016 Presidential Contest, the plaintiffs claim it is different from the others because it has been filed as a class action on behalf of “all Americans.”

 

Wikimedia vs. NSA (filed in 2015) — This lawsuit was filed just this week in the District of Maryland.  Like the Jewel case, Wikimedia’s case challenges the NSA’s UPSTREAM surveillance program.  And like the Jewel case, this case could be dismissed in whole or in part because national security secrecy makes the plaintiffs unable to establish a cause of action.  However, if the case is able to go forward, the case will likely turn on when (if ever) the NSA is held to have “searched” and “seized” the data in the UPSTREAM program.  The following graphic (which comes from the Electronic Frontier Foundation’s website) explains the case from Wikimedia’s point of view, arguing that the internet traffic is “seized” when it is copied as it flows along the internet backbone, and then “searched” when the NSA’s computer software sifts through it to identify messages and data that include the suspicious words or terms.

backbone-3c-color

One question that a court will eventually have to decide is whether this information is actually ever being “seized.”  A seizure occurs when the government exercises “some meaningful interference” with an individual’s possessory interest in the property.  But merely copying data as it flows through the fiber-optic cables is not really a seizure–it does not interfere at all with the individual’s possessory interest.  Under current Supreme Court doctrine, merely making a copy of information does not constitute a “seizure”–although this doctrine has been criticized by some commentators, it is hard to see how any other rule would be consistent with existing law.

The real question is: when is the information “searched?”  If the government has copies of all of the data flowing across the internet, it does not help the government at all (nor does it meaningfully infringe on our privacy rights) unless the government actually looks at the data–and once the government looks, it has committed a search.

But what exactly constitutes “looking” at the data?  When a computer program sifts through the data looking for specific key words, can we classify that as a “search,” even if no human being ever sees the data?  In a 2005 article, I wrote that using software in this way could be a valuable new tool for police–increasing the efficiency of law enforcement with very little intrusion into our privacy.

As technology gets more sophisticated, software will be better able to focus on illegal behavior and thus narrow the scope of the surveillance—perhaps even to the point where the surveillance only alerts a human law enforcement agent when there is a near certainty of illicit conduct.  At that point, only the mindless computers  will “know” the private information about what we are writing, and they will quickly and unconsciously examine and discard any private innocent information they discover.  In the meantime, the human law enforcement agents will leave us alone. 

The NSA collection methods are coming close to reaching this point, but we are not there yet.  Unfortunately, the NSA filters still allow a large amount of innocent data to come through–and as soon as the NSA officers look at innocent information, they are conducting a “search.”  It may be a very efficient search, with a very high probability of leading to illegal activity, but it is still a search.  Perhaps the filters are refined enough such that there is probable cause to believe that any data that survives the filter is evidence of a crime.   Perhaps the filters are effective in removing all purely domestic communications, and so can all be justified under a FISA warrant.  But until we get a full, public review of the program, we will be unable to answer these questions.

For a number of years now, privacy law scholars have been writing, discussing, and worrying about the effect of big data on different aspects of our lives.  Last year my own law school hosted a conference on big data, which covered government regulation of big data, its economic impact, and its effect on industries as diverse as health, education, and city planning.  However, up until recently there has not been much discussion about the use of big data in the criminal law context.  This is now starting to change, with a handful of articles addressing the inevitable future when courts begin to consider the use of big data in various aspects of the criminal justice system.

Bid data   Police with computer

First, a definition: when people talk about big data, they are usually referring to the practice of accumulating extraordinarily large amounts of information from a variety of different sources and then processing that information to learn new information or provide valuable services.  Private companies have been using big data for quite some time now.  Retailers use it to determine customer behavior and affect shopping habits (As reported in a famous New York Times magazine cover story, Target uses large amounts of seemingly random purchasing data to determine that customers are pregnant, so that the store cab send the customers coupons for pregnancy and new baby items).  Insurance companies rely on big data to try to determine who the safest drivers and healthiest people are.  And all sorts of companies buy and sell this data to each other, seeking to mine it for information about their customers that they can use for economic advantage.

The two most intriguing aspects of big data as it relates to criminal law are (1) it can reveal otherwise unknowable information about individuals from public sources; and (2) it can predict future behavior.  These two facts make it very likely that big data will revolutionize the criminal justice system over the next decade.  Police have already been using massive amounts of data to help decide where to deploy resources, as exemplified by the famous crime mapping software found in police COMPSTAT programs.  And the NSA’s massive metadata collection program, which is currently being reviewed by various district courts (see here and here), is another example of law enforcement trying to collect, analyze, and use big data to try to detect criminal activity–perhaps in violation of the Fourth Amendment.  But as the amount of data about individuals grows and becomes more and more accessible, we will see big data being used at every stage of the criminal justice system.

The next use of big data will probably be with regard to Terry stops.  Professor Andrew Ferguson of the University of the District of Columbia Law School wrote about this in a recent article in the University of Pennsylvania Law Review entitled “Big Data and Predictive Reasonable Suspicion.”  As Professor Ferguson notes, Terry was originally developed (and has so far been applied) in a “small data” context, in which police officers use their own individual observations of the suspect, perhaps combined with their knowledge of the neighborhood, to develop reasonable suspicion for a stop.  But the increasingly networked amount of information about individuals, combined with the speed at which law enforcement can now access this information, allows police to generate useful information about any individual they may see on the street.  Professor Ferguson re-imagines Detective McDadden observing John Terry in a modern day setting:

He observes John Terry and, using facial recognition technology, identifies him and begins to investigate using big data. Detective McFadden learns through a database search that Terry has a prior criminal record, including a couple of convictions and a number of arrests. McFadden learns, through pattern–matching links, that Terry is an associate (a “hanger on”) of a notorious, violent local gangster—Billy Cox—who had been charged with several murders. McFadden also learns that Terry has a substance abuse problem and is addicted to drugs. These factors—all true, but unknown to the real Detective McFadden—are individualized and particularized to Terry. Alone, they may not constitute reasonable suspicion that Terry is committing or about to commit a particular crime. But in conjunction with Terry’s observed actions of pacing outside a store with two associates, the information makes the reasonable suspicion finding easier and, likely, more reliable.

Indeed, the standard of “reasonable suspicion” is so low that police officers may be able to use big data information to stop a suspect even though he was not engaged in any suspicious activity at the time, if a reliable algorithm predicts that he is at heightened risk for carrying a gun or narcotics.

Professor Ferguson notes a number of benefits from this use of big data, such as improved accuracy in Terry stops; the ability to use big data to allay suspicions and thus avoid an intrusive police/citizen encounter; and greater accountability for police actions.  He also discusses the obvious dangers of widespread use of this data: the data may not be accurate; there will inevitably be false positives; and those who are poor or disenfranchised may be overrepresented in the “criminal propensity” data sets.  Indeed, the entire idea of police making decisions about whom to stop based on a science that predicts future criminal activity has a dystopian science fiction feel to it.  Professor Ferguson suggests some changes to both to legal doctrine and in how we collect and use big data in order to alleviate these concerns.  He also notes that the “old-fashioned” method of relying on individual police officer’s observations–and unavoidably biased interpretations of those observations–is hardly a perfect system.

Other articles have begun to apply big data concepts to other aspects of the criminal justice system, such as parole decisions, analyzing criminal court rulings, and jury selection.  But there are still more applications that have yet to be explored.  What is the impact when police use big data analysis in search warrant application?  What about prosecutors and defense attorneys predicting flight risks during bail hearings?  What about judges predicting future dangerousness during sentencing hearings?  And what about the criminal trial itself?  The rules of Evidence allow a defendant to bring in opinion and reputation evidence to show that they are not the “type” of person who would have committed the crime in question; why not allow him to bring in far more accurate evidence based on big data about his unlikeliness to have committed the crime?  The courts, no doubt, will be slow to accept this kind of information, and slower still to craft sensible rules for how to deal with it, but there is little doubt that the change will come.

Next week the Eleventh Circuit will hear the en banc appeal of United States v. Davis.  This case involves the use of cell tower location information to track the movements of a suspect.  Last year a three judge panel ruled that the government needed to obtain a warrant before it could acquire this information from the phone company.  Next week, the Eleventh Circuit will re-hear the case en banc and decide whether they will pull back from the broad holding and expansive reasoning of the original decision.

cell tower location display

In the Davis case, the government suspected the defendant of numerous armed robberies.  During its investigation, the government obtained a court order to acquire the cell tower location data from the defendant’s phone pursuant to the Stored Communications Act (“SCA”).  At the outset, it should be noted that this information is the least intrusive and least precise type of location information that is available from an individual’s cell phone.  Cell tower location information merely tells the phone company (and in this case, the government) the one or two towers which were used to contact the suspect’s phone when he made or received a phone call, as well as the direction the suspect was in relation to the tower(s).  These are usually, but not always, the closest cell phone towers to the suspect at the time he or she used the cell phone.  The data is only created when the suspect actually uses the cell phone–usually when he or she is making or receiving a call.  In contrast, when law enforcement officers have the phone company “ping” a cell phone, or when it uses the GPS device built into the cell phone,the officers obtain a real-time, continuous, precise location of the suspect, regardless of whether the suspect is using the cell phone at the time.

Under the SCA, the government need only show “specific and articulable facts” that the information could be linked to a crime in order to obtain a court order.  Davis argued (and the three judge panel agreed) that acquiring this location information was a Fourth Amendment search, and so the government needed to obtain a warrant based on probable cause before gaining access to this data.  The three-judge panel acknowledged that this was a case of first impression, and so it relied heavily on Justice Alito’s four justice concurrence in the Jones case in its reasoning.  In Jones, four justices found that a twenty-eight day continuous surveillance using a GPS was a Fourth Amendment search because of the “mosaic doctrine”–i.e., the government learned so much public information about the defendant that it created a mosaic which revealed private, protected information.  The three-judge panel in Davis acknowledged the difference between the two fact patterns, but argued that the case was “sufficiently similar” to make it “clearly relevant” to their analysis.

In fact, the distinctions between Davis and Jones are significant, and they all point to the conclusion that the search in Davis does not deserve Fourth Amendment protection.  The only reason the Alito concurrence found that the government surveillance in Jones constituted a search was because of the large number of trips that were tracked; in the Davis case, the government only examined a small number of incidents (specifically, the times when a robbery was occurring).  But the Davis three judge panel ignored this distinction, arguing that tracking a person’s public location even once could constitute a search: “…[E]ven on a person’s first visit to a gynecologist, a psychiatrist, a bookie, or a priest, one may assume the visit is private if it was not conducted in a public way.”  The Jones case also involved tracking an individual at all times, while the police in Davis only gained location information from the defendant when he voluntarily provided that information to the phone company by using his cell phone.  And finally, the Jones location information was much more precise, showing the police exactly where the defendant’s car was located; the Davis location information only showed the general area where the defendant was located.  (The three judge panel brushed this difference aside, arguing that because the prosecutor claimed the cell phone location placed the defendant “near each of six crime scenes,” it could place him “near any other scene” as well, including the “home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute.”)

Essentially the Davis panel appeared to be arguing that since an individual may want to keep his general location at any given time private from the government, the Fourth Amendment protects the government from learning that information unless it first obtained a warrant.  This is certainly not supported by Jones and directly contradicts Knotts, which allows the government to use electronic means to track an individual over the course of one trip.

The only significant difference the Davis panel found between its case and the Jones case was that the Jones case involved tracking a car, whereas the Davis case involved tracking a cell phone.  The Davis court concluded that a person has less reasonable expectation of privacy in the movements of a car, because it is easily visible when in public, than it does in the movements of an individual (as tracked through a cell phone), which may not be so easily visible.  Unfortunately for the Davis court, no other court has made any such distinction.  The only distinction that matters is whether the location being tracked is in public (as in Knotts) or in private (as in Karo)–and, after Jones, whether there is so much information that it creates a mosaic.  Neither of those distinctions existed in Davis.

Finally, the Davis court had to overcome one more obstacle in order to come to its extraordinary conclusion: it had to deal with the third party doctrine.  As a general rule, a person loses all Fourth Amendment protection for any information that he or she turns over to a third party (such as a phone company).  The Davis court argued that the third party doctrine only applies when a person “voluntarily and knowingly” conveys information to a third party, and then claimed that a cell phone user has no idea that he or she is conveying her location to the phone company when he or she makes a cell phone call.  The first step of this argument seems questionable as a matter of law (there is no strong support for the proposition that the third party doctrine only applies to “voluntary and knowing” transfer of information) and the second step of this argument seems flat out wrong as a matter of fact (regardless of what the defendant in Davis might have thought, most people must know that the cell phone company needs to determine the location of their phone in order to send calls to it).

The Davis court ultimately ruled for the government and refused to suppress the evidence based on the good faith exception to the exclusionary rule, but its reasoning and dicta regarding cell phone location information still stands.  If the en banc court does not overturn that aspect of the case, it will represent a radical expansion of the Jones case–an expansion that is not consistent with the rest of Fourth Amendment doctrine in this area.

 

In the five years since the Supreme Court decided Herring v. United States, law professors and other commentators have written dozens of articles about it, to the point at which it seemed as though there was not much more to say about the decision.  However, a recent article posted on SSRN takes a fresh perspective on Herring by examining how the case has been handled by lower courts–and, by extension, how police departments may be reacting to Herring in order to “launder” evidence that was obtained in violation of the Fourth or Fifth Amendment.

In Herring, the Supreme Court broadened the application of the “good faith exception” of the exclusionary rule.  The arresting officer in Herring relied upon a negligent mistake by a police department employee from another department when he arrested the defendant–but there was no way for the arresting officer to know that there had been a mistake.  Thus, the defendant was illegally arrested, but the arresting officer had know way of knowing at the time that the arrest was illegal.  However, unlike in previous good faith cases (like United States v. Leon), the mistake at issue was made by a law enforcement official–thus, the Court had to address the question of whether a negligent mistake made by a law enforcement officer who was not the arresting officer would still trigger the exclusionary rule.  The Court held that the exclusionary rule should not apply–essentially, it was not worth the cost of applying the exclusionary rule in a case where the arresting officer acted in good faith, even if originally it was a police error that lead to the Fourth Amendment violation.  The Court noted in dicta that if the original error was “deliberate misconduct, recklessness, or gross negligence,” or if there were “systemic negligence” on the part of the mistaken officer, then the good faith exception should not apply.

Herring decision left a lot of questions unanswered: how much attenuation is necessary between the original police error and the illegal arrest before the good faith doctrine can apply?  What exactly constitutes “gross negligence” or “systemic negligence”?   And more broadly: does this case signal the beginning of the end of the exclusionary rule, since the Court is now refusing to apply the rule even in the case of a police mistake that leads to a Fourth Amendment violation?

Probably these questions were intentionally left unanswered: the Supreme Court wanted to wait and see how the decision played out in lower courts before deciding what its next move should be with regard to the application of the exclusionary rule.  Elsewhere I have been very critical of this “wait-and-see” strategy by the Supreme Court, arguing that the Court takes so few cases in Fourth Amendment law that it needs to be bolder when it addresses unsettled areas of law–otherwise (as in Herring) it ends up creating more questions than it resolves.  But when the Court chooses to move incrementally, it is undoubtedly useful to actually take a look a few years later and see exactly what the lower courts are doing.  This is exactly what this latest law review article does.

The article, Evidence Laundering: How Herring Made Ignorance the Best Detergent, is co-written by Professor Kay Levine of Emory, Professor Jenia Turner of Southern Methodist, and Professor Ronald Wright of Wake Forest.  The article conducts an analysis of the twenty-one lower court decisions that have applied Herring in cases where one police officer acting in good faith relied on tainted information and thus violated a defendant’s Fourth Amendment rights.  In those twenty-one cases, seventeen courts allowed the evidence to be admitted, while four determined that there was “deliberate misconduct, recklessness or gross negligence” which required exclusion of the evidence.

The authors worry that police officers may launder evidence intentionally, reviving the “silver platter” doctrine from the pre-Mapp era in which state police would violate the law to obtain evidence and then hand over the tainted evidence to federal authorities, who could then legally use it in federal court.  Although most of the post-Herring cases involved fact patterns very similar to Herring (i.e., a mistake in an arrest warrant database), the authors still found cause for concern:

we identify courts that have permitted boldly problematic hand-offs of the sort contemplated by the hypothetical. But even in the less obviously problematic cases, acquiescent reasoning or insufficient fact-finding by courts suggests a tolerance for evidence laundering that not only is troubling on its face but might also inspire evasive tactics by law enforcement in the future.

The article goes on to make two important points.  First, the Herring decision is based on an individualistic, “atomistic” view of how police departments operate, which leads it to focus on the (innocent) actions of the arresting officer rather than the (negligent) actions of some other member of law enforcement.  As the article points out, this is increasingly an inaccurate way of viewing how police departments operate, since in the age of computer databases and cross-jurisdictional crimes, police officers often work closely (or at least rely upon) officers in other divisions or other departments in the course of investigating criminal activities.   Second, the article compares our current exclusionary rule to the rules followed by other countries, and finds–somewhat surprisingly–that the current state of the exclusionary rule is now very similar to the rule for other countries.   Other civil and criminal law countries do apply an exclusionary rule, although less often than in the United States, and in doing so they apply a broad balancing test rather than applying a stricter rule-based analysis.  That is, these countries “weigh the effect of factors such as the seriousness of the misconduct, the gravity of the offense, and the importance of the rights violated.”  This is increasingly how the United States courts are applying the exclusionary rule post-Herring.   The article points out some good and some bad effects of this shift from a traditionally American “rules-based” standard to an international “balancing test” analysis:

One of the chief weaknesses of the balancing approach is that its flexibility carries the risk of inconsistent and unpredictable decisions. To the extent it relies on a subjective evaluation of officers’ state of mind, a balancing approach also raises practical difficulties for defendants in proving this element. And finally, because balancing expands in some respects the range of cases in which unlawfully obtained evidence is admitted, this likely reduces the disciplinary effect of exclusion.

Yet balancing also offers some potential advantages. In certain circumstances, its openness allows judges to exclude evidence to ensure systemic integrity where our deterrence-oriented approach would call for admission. The flexibility of the balancing approach also permits courts to consider alternative remedies, such as sentence reduction or jury cautions, in some cases where our zero-sum approach would lead to admissibility because of concerns about the costs of exclusion. While empirical evidence on the practical effects of the balancing approach is very limited, existing data suggest that it need not severely undermine the exclusionary rule.

This is probably a very accurate prediction of the future of the exclusionary rule–the doctrine will ultimately complete its evolution from a rigid rule-based analysis into a flexible balancing test that will result in more illegally obtained evidence being admitted.  Whether this is a positive development depends on how much a person accepted the original premise of the exclusionary rule as an effective deterrent that was worth the cost of setting some guilty people free.  In his seminal article Fourth Amendment First Principles, Professor Akhil Amar predicted that we would eventually get to the point where courts reject the exclusionary rule in favor of a more balanced reasonableness analysis.  Professor Amar believed this would be a positive development.  As he pointed out:

The exclusionary rule renders the Fourth Amendment contemptible in the eyes of judges and citizens. Judges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated. In the popular mind, the Amendment has lost its luster and become associated with grinning criminals getting off on crummy technicalities. When rapists are freed, the people are less secure in their houses and persons–and they lose respect for the Fourth Amendment. If exclusion is the remedy, all too often ordinary people will want to say that the right was not really violated. At first they will say it with a wink; later, with a frown; and one day, they will come to believe it. Here, too, unjustified expansion predictably leads to unjustified contraction elsewhere.

Professor Amar (and some others) have argued for adopting a number of alternate remedies for addressing Fourth Amendment violations, such as civil liability of police departments (which would require weakening or abolishing some of the qualified immunity doctrine), punitive damages, class actions, and injunctive relief.  Of course, courts will not start developing these alternate remedies in any meaningful way until the Supreme Court completes this shift once and for all and abolishes the exclusionary rule as we know it in favor of the broader balancing test that some post-Herring lower courts already seem to be applying.  Surely it is now time for the Court to take this final step and allow a more robust development of other Fourth Amendment remedies.

In what may be the most significant Fourth Amendment case this year, the Supreme Court recently heard arguments in Rodriguez v. United States, which raises the question of how long (if at all) a police officer can delay a traffic stop to conduct further criminal investigations.  In the Rodriguez case, Officer Struble pulled defendant Rodriguez over at 12:06 AM for veering onto the shoulder of the road.  Struble was a K-9 officer, and he had his partner Floyd with him in the police car. Officer Struble conducted a routine check of Rodriguez’s license and other papers, asked a few questions, and issued a written warning at about 12:27.  Struble then asked whether Rodriguez would consent to the drug dog sniffing the car, and the Rodriguez refused.  Officer Struble, correctly concluding that he was allowed to conduct a drug dog sniff even without consent, decided to go ahead and deploy Floyd over Rodriguez’s objections.  However, since Rodriguez had a passenger in his car, Struble decided that it would be too dangerous to conduct the dog sniff without backup, so he ordered Rodriguez out of the car and made him wait until a second officer arrived on the scene.  Approximately six or seven minutes later,  a second officer arrived, and Officer Struble and Floyd walked around Rodruiguez’s car.  Floyd alerted in under a minute, providing probable cause to search, and the police ultimately recovered a large bag of methamphetamine.

traffic stop drug-dog

The question before the Court in its narrowest formulation is whether Officer Struble was permitted to require Rodriguez to wait for the backup to arrive.  The broader question is usually phrased as whether (and for how long) police officers can prolong a traffic stop after it is completed in order to conduct a further investigation.  But a more realistic way of setting out the question is really: “What is a ‘reasonable length of time’ for a traffic stop?”  In other words, the Court can either analyze this case as either:

a twenty-one minute traffic stop that included a license check and routine questioning, which was completed, after which there was a seven minute delay for a drug dog sniff, or

a twenty-eight minute traffic stop that included a license check, routine questioning, and a drug dog sniff.

If the Court adopts the first analysis, there are only two arguments that the police action was constitutional, and neither of them are very convincing.  The first argument is that Officer Struble had reasonable suspicion to seize Rodriguez for those seven minutes as part of a Terry stop.   But even under the low standards of reasonable suspicion, there is not much evidence that Officer Struble had specific and articulable facts that criminal activity was afoot–and at any rate this issue was not briefed for the Court.  The second argument, which was the one adopted by the Eighth Circuit, was that the extra seven minutes was a de minimis intrusion and thus the delay was reasonable.  The Eighth Circuit cited a number of cases which have approved of a delay of two to four minutes, and so it concluded that the traffic stop in this case was not “unreasonably prolonged.”  Ginger Anders, the Assistant to the Solicitor General who argued the government’s case, also took this position.  However, the Justices were not very amenable to this line of reasoning during oral argument, and they pointed out that it would allow the police officer to do any number of things after the traffic stop was over, as long as they did not “unreasonably prolong” the stop.  For example, a police officer could question a motorist for an extra seven or eight minutes about potential criminal activity.  Justice Kagan showed her displeasure at this idea:

But then you really are saying because we have a reason to pull you over for a traffic stop, that gives us some extra time to start questioning you about other law enforcement related things and to do other law enforcement related business. And I never thought that that was the rule. I always thought is that once the objective basis . . . for the stop dissipated, that was it.

The other problem with the “reasonable delay” argument is that it results in rather arbitrary line-drawing about how long a traffic stop should take.  And once those lines are drawn, police officers will have free reign to do whatever they think is useful (as long as it is not a “Fourth Amendment search”) within the time frame.  Again, Justice Kagan summarized the problem:

But . . . where your rule is going to lead to, Ms. Anders, is something along the lines of . . . everybody will decide 30 minutes or 40 minutes, I think you say at one point in your brief, is reasonable for a traffic stop. And if you see a taillight violation, that’s 40 minutes of free time for the police officers to investigate any crimes that they want, because they can do it all in the range of what you’ve decided is kind of the reasonable traffic stop.

The second analysis–that the drug dog sniff could be thought of as a reasonable part of a routine traffic stop–is more interesting, and it received a fair amount of attention from the Justices in the oral argument.  During his argument, defense attorney Shannon O’Connor  struggled to define the point at which a traffic stop was completed.  After some confusion on the issue, he wisely rejected a formalist, brightline test (e.g., the traffic stop is over when the police officer formally hands a ticket to the motorist).  Instead, he argued that a traffic stop can take no more time than is reasonably necessary to conclude the “mission” of the traffic stop.  But that merely begs the question: what is the “mission” of a traffic stop?  Currently, police officers routinely check a motorist’s license, registration, and proof of insurance; they take time to run the plates of the car to see if it has been stolen; and they ask the motorist questions about where they are going and why.  None of these actions have any particular relationship to the initial reason for the traffic stop–in this case, the fact that the motorist swerved onto the shoulder.  So if these non-related actions are allowed, why not also a dog sniff?  O’Connor even conceded that if the police officer who initially pulled over the motorist feels like she needs backup in order to safely interact with the motorist, it is constitutional to force the motorist to wait for up to thirty minutes before the backup arrives.  And yet, after the backup arrives, and while the original officer is writing out the ticket, the backup cannot go ahead and conduct a dog sniff of the car–even though the dog sniff itself is not a search?   Rory Little at SCOTUSblog thought that it was “clear” after the oral argument that drug dog sniffs are “extraneous” to the mission of a traffic stop, but some of the questioning from the Justices seemed to leave open the possibility that a drug dog sniff could be a reasonable part of a routine traffic stop.  Thus, the Court could resolve this case by merely saying that drug dog sniffs are (or are not) part of the mission of a stop.  If they are not, any extra delay in order to conduct a drug dog sniff is an unconstitutional seizure.  If they are, then the police are allowed to delay the stop to conduct a drug dog sniff, as long as the police are diligent in conducting that search.  But this only raises more questions: what else is part of the mission of the stop?  In particular, is extensive questioning part of the mission?  If so, how much questioning?

In resolving this problem, Professor Orin Kerr argues that traffic stops should be classified into two categories.  The most common category is comprised of stops which are the result of a mere traffic violation (as in Rodriguez).  For these stops, the mission is “to find and evaluate safety concerns”–so the officer can only do what is necessary to ensure the safety of other motorists, and she cannot conduct any criminal investigation (such as asking questions about criminal activity, asking consent to search the car, or using a drug dog) if that conduct prolongs the stop.  The second category is when the officer has reasonable suspicion to believe that a crime has been committed–in which case the mission of the stop expands to criminal investigation.

Although this is an elegant solution, there is no case law that supports this distinction, and it adds yet another layer of complexity to an already extremely complex area of law. We would have two different types of car stops, with different rules (and two separate sets of jurisprudence) for each.  Furthermore, the distinction between a “traffic code violation” and a “criminal law violation” would be hard to apply in practice.  Many mere traffic violations could give rise to reasonable suspicion that the motorist is intoxicated–which would transform a traffic code violation into a criminal law violation.  And even in pure traffic code stops, police would have a strong incentive to try to gather information to transform the traffic code stop into a criminal law violation stop, leading to an infinite variety of fact-based puzzles as to when a stop was “transformed” and whether a police officer delayed the original traffic code stop in an attempt to bump it up to a criminal law stop.

In the end, it will be hard for the Court to resolve this case without de facto legislating from the bench by telling police officers exactly what they can and can’t do during a routine traffic stop.  The Justices will no doubt have to base this list of permissible actions on what they say is “reasonable,” but in fact they will probably conclude that what is “reasonable” is simply what the police have traditionally done during traffic stops–checking documents, running plates, and asking routine questions.  There is no particular argument that these actions are “reasonable” compared to, say, a drug dog sniff or a prolonged inspection of the outside of the car, or running a warrant check on all the passengers in the car, or any number of other things that police might want to do.

But “reasonableness” here is a term of art to mean (as it often does in the Fourth Amendment context) what we are used to seeing the police doing, rather than what is actually reasonable for the police to do.  Thus, in this case, well-established practice will create the constitutional rule, rather than (as it should be) the other way around.

Yesterday the public defender’s office in San Francisco published a video (which has since gone viral) that shows police officers arresting a public defender inside a San Francisco courthouse.  The police were attempting to take photos of an individual in the hallway of the courthouse, apparently because the police suspected him in another crime.  The public defender, Jamie Tillotson, who was at the courthouse representing another client at the time, intervened in the situation and told the police not to take pictures.  A plainclothes police officer asked her to move aside, asking for “two minutes so that we can take photos,” and Tillotson refused.  The police officer then threatened to arrest her, and she responded “Please do.”  The police then arrested her, handcuffed her, and took her to a police station where she was held for an hour and then released, apparently without being charged, though a police spokesman later said that the case was still “under investigation.”

Tillotson-Arrest

Unsurprisingly, the public reaction to this incident has been overwhelmingly against the police action.  Whether or not the police officers’ action was in fact legally justified, I have no doubt that the police are going to end up on the losing end of this battle.  The optics of the video are incredibly damaging, and the bumper-sticker version of the event (“Police arrest defense lawyer in a courthouse for representing her client”) will drown out any legitimate argument the police may have for their actions.  To make matters worse, the arresting officer in the incident was the subject of a federal civil rights investigation for racial profiling in 2013.  Meanwhile the public defender comes off very well in the video– she appears calm, reasonable, and brave during her arrest.  So even if the police did act within the law, there is no question that this was–to put it bluntly–a very stupid thing to do.

But as in the Google Glass case, there are some interesting legal issues lurking behind all of this media frenzy.  Did the public defender have the legal right prevent the police from taking photographs?  And were the police legally authorized to arrest her for her actions?

In response to the first question, the police argue (correctly)  that they are perfectly entitled to take photos of individuals who are in a public place–as was the case here.  The public defender has a couple of responses to this argument:

First, the public defender could argue that the photo-taking here was just a pretext so that the police could begin to interact with the suspect and ultimately ask questions of the suspect as part of their investigation.  There is some evidence to support this–the police said that the photo session would take “about two minutes,” which seems unduly long if all they wanted to do was take pictures.  Indeed, witnesses report that after the defense attorney was led away in handcuffs, the police did in fact ask questions of the suspect.  But legally, none of that matters.  Under McNeil v. Washington and Texas v. Cobb, the Sixth Amendment right to counsel is offense-specific: that is, even if an individual is represented by an attorney on one case, the police can still ask the individual questions about an unrelated case.  And the Fifth Amendment right to remain silent does not exist unless the suspect is in custody (more on that in a second).  Thus, the police were legally entitled to ask questions of the suspect (though of course the suspect was free to refuse to answer).  Furthermore, whether or not the photo shoot was a pretext for questioning is irrelevant in this case, because the defense attorney intervened before the police began asking questions–she was objecting to the mere taking of the pictures.   And on top of all of that, the defense attorney could not “order” the police to not take photos or not ask questions–all she could legally do was to advise the suspect to not stand still for the photos or to not answer any questions.  From the video, it is a bit unclear exactly what the defense attorney was doing that offended the police officers, but it appears that she was standing in between the police officer and his camera, thus making it more difficult for the police to take their photos–an action which they were clearly legally allowed to do.

The second response to the police argument is a bit more subtle, but in the end may have merit: although the police were allowed to take photos and ask questions, it appears they may have been conducting an illegal seizure.  Early on in the video the police officer tells the public defender “I just want to take some pictures, OK, and then he will be free to go.”  Of course, the suspect should always be “free to go” unless the police have reasonable suspicion to detain him under Terry v. Ohio.   Perhaps the suspect was not truly being seized–perhaps the statement “and then he will be free to go” was meant to be a figure of speech–but when police officers use that kind of language, a  suspect could reasonably believe that he was in fact not free to go, thus creating a seizure according to United States v. Mendenhall.  So the public defender was (arguably) correct to intervene, but not for the reason she stated–that is, not because the photos (or the possible questioning) was illegal, but because the police statements (and possibly actions) were creating an illegal seizure.  Of course, if the police did have reasonable suspicion to detain the suspect, then the seizure was proper–this is a fact that we would need to know in order to correctly evaluate the police action.

So the police may or may not have been acting legally with regards to the suspect, depending on whether they had reasonable suspicion to detain him.  But what about their actions towards the defense attorney herself–that is, their decision to arrest her?  Was she committing a crime?

Once again, the public reaction to this question is overwhelmingly opposed to the arrest.  Part of this is because the video shows the police officer telling the public defender that she is being “arrested for resisting arrest,” which sounds like an absurd tautology–what is the original basis of the arrest that she is allegedly “resisting?”  But as it turns out, the California law known as “resisting arrest” (California Penal Code Section 148) is actually quite broad, and allows police officers to arrest anyone who “willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment….”  In other words, what most states call “Obstruction of Justice,” California includes as part of the crime “Resisting Arrest.”

So was Ms. Tillotson “resisting arrest?”  First we have to know whether the police officers were “lawfully performing” their duties.  As discussed above, this depends on (1) whether they actually seized the suspect; and (2) if so, whether they had reasonable suspicion that he was involved in criminal activity.  If the police officers were illegally seizing the suspect, then there is no way the public defender could have been committing a crime by intervening.  However, if the suspect had not been “seized,” or if the police had the right to seize him, then we need to ask whether the public defender was willfully delaying or obstructing the police officer’s actions.  This seems to be a relatively easy element to prove.  She was both delaying and obstructing the police officers from taking photographs and asking questions from the suspect, and her actions were certainly “willful”–she acted with the purpose of preventing the police officers from carrying out their duty.

Although this is a reasonable interpretation of the statute, its application in this context is worrisome, to say the least.  Ms. Tillotson may not have had the right to interfere with the police investigation in this instance, but there is a strong public policy argument for giving defense attorneys wide latitude in these situations.  As noted above, if the public defender had merely advised the suspect to walk away from the photo shoot and to refuse to answer questions, she would have merely been giving good advice to the suspect–in fact, she would have been doing her duty as the suspect’s attorney by protecting his rights.  If she instead confronts the police (peacefully), tells them to cease their activities, and blocks their attempts to take a photo, has she really crossed the line from dutiful advocate into obstructer of justice?

And so in the end, the legal analysis brings us back to the same equitable considerations that we started with.  It is certainly feasible that under a technical reading of the law, the public defender overstepped her bounds and the police had the legal authority to arrest her.  But even if the police could win the legal battle, they are certain to lose the broader war.  Given the inevitable (and easily foreseen) political and public relations disaster that the police are now facing, it is inconceivable that the need to take photos of this suspect was worth the repercussions that the police department will now face.   Police officers have to remember: it is 2015; cameras are everywhere, and videos go viral.

Last year, the United States Marshal’s Service tracked down a fugitive named Steven Denson to a house in Witchita, Kansas.  Before they stormed the house, however, they took a sensible precaution and placed a radar device on the outside of the wall to determine the location of the individual in the house.  They then entered the house, arrested the fugitive, and found a number of illegal guns as well.

ranger-radarradar through wall

The marshals had a warrant for Denson’s arrest, but they did not have a search warrant for the home.  Thus, they were only permitted to enter the home if they had “reason to believe” that Denson was inside the home at the time.  Denson challenged the entry into the home, arguing that the police officers only developed a reason to believe he was inside after using the radar device, which violated his Fourth Amendment rights.

The Tenth Circuit rejected Denson’s argument  and held that the officers did not violate the Fourth Amendment.  According to the court, the officers already had reason to believe that Denson was inside even before they used the radar device.  Thus, the court applied the independent source doctrine from the Supreme Court’s holding in Murray v. United States and allowed the search to stand without resolving the question of whether the radar device violated Denson’s Fourth Amendment rights.  Here is the Tenth Circuit’s description of the device:

the government brought with it a Doppler radar device capable of detecting from outside the home the presence of  “human breathing and movement within.”  All this packed into a hand-held unit “about 10 inches by 4 inches wide, 10 inches long.”  The government admits that it used the radar before entering — and that the device registered someone’s presence inside.  It’s obvious to us and everyone else in this case that the government’s warrantless use of such a powerful tool to search inside homes poses grave Fourth Amendment questions.  New  technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights.  See, e.g., Kyllo v. United States, 533 U.S. 27, 33-35 (2001) (holding that using warrantless thermal imaging to show activity inside a home violated the Fourth Amendment).  Unlawful searches can give rise not only to civil claims but may require the suppression of evidence in criminal proceedings.  We have little doubt that the radar device deployed here will soon generate many questions for this court and others along both of these axes.  At the same time, in a criminal proceeding like ours the government is free to rely on facts gleaned independently from any Fourth Amendment violation.

This analysis seems cautious to a fault.  There is no conceivable way that the use of the radar device is consistent with the Kyllo case.  If law enforcement officers are conducting a Fourth Amendment search when they use a thermal imager to detect the emanations of heat inside of a home, then they are certainly conducting a Fourth Amendment search when they use a radar to detect the presence, movement, and location of individuals inside a house.  And although these devices are apparently becoming more and more popular among law enforcement, they have certainly not risen to the level of being “in general public use,” as required by Kyllo.

The use of the radar device to establish probable cause is even more clearly unconstitutional given the Supreme Court’s recent case of Florida v. Jardines, which held that a drug-dog sniff at the front door of a house constituted a Fourth Amendment search.  In Jardines, the court held that the use of a surveillance tactic which ordinarily does not implicate the Fourth Amendment becomes an unconstitutional search when it is used at the front door of a home.  In the Tenth Circuit’s case, the court was reviewing a surveillance tactic that is more intrusive than the thermal imager in Kyllo and which involved a United States Marshall placing the device directly on the outer wall of a home–a location where an individual arguably has a greater expectation of privacy than the front door.

Regardless, the Tenth Circuit’s holding in this case was almost certainly correct.  Even without the information from the radar device, the United States Marshals had sufficient evidence to establish probable cause (or at least “reason to believe,” which may be an even lower standard) that Denson was in the home.  Denson was the primary account holder on the utility for the home; and he was unemployed and running from the police, and the electric meter was  “going faster than normal”–all of which would lead the officers to believe that someone was home at the time.  Furthermore, the use of the radar device by the marshals seems perfectly legitimate in this case–once the marshals had established probable cause to believe that Denson was inside, they used the device to ensure their safety for when they entered the house.  This is a perfectly reasonable, non-investigatory use of the technology.

But even though the marshals acted properly and the Tenth Circuit reached the proper result, one could still hope that the court had been a little bolder with its dicta regarding the radar device.  Surely the question of whether the use of the radar gun was consistent with Kyllo had been fully briefed and argued by both sides, and thus there was no reason not to firmly state that the use of this device to establish probable cause violates the Fourth Amendment.  Instead, the court decided to avoid the issue and save it for another day.  This inevitably means that in some future case, a law enforcement officer will use a radar device to establish probable cause in the fruitless hope that this kind of surveillance is constitutional–with the result that the defendant’s conviction will be overturned and a criminal will walk free.  Stronger guidance on this point might have avoided that unfortunate result.

In  Griffin v. Wisconsin and United States v. Knights, the Supreme Court upheld warrantless searches of the homes of probationers as justified by the Fourth Amendment’s “special needs” doctrine.   According to the Court, probation conditions served two purposes: rehabilitation and protecting society from future criminal violations by the probationer.  Under the creative logic of the special needs doctrine, these are purposes unrelated to crime control and thus the usual requirements of warrants and probable cause to not apply to law enforcement searches of probationers.  Also, probationers (like school children) have a lesser Fourth Amendment privacy interest than ordinary citizens.  The Supreme Court also noted that in both Griffin and Knights, the sentencing court had explicitly set out a probation condition that allowed the police to conduct a warrantless search the probationer’s home.   But the Court left open the question as to whether or not the constitutionality of the warrantless search depended on such an explicit condition, or whether the non-law enforcement purpose and reduced privacy interests of probationers alone was sufficient to permit such searches.

The Fifth and Eleventh Circuits ruled that probationers could not object to warrantless searches of their home even if this was not an explicit condition of their probation, but recently the Fourth Circuit came down on the other side of this issue.   In United States v. Hill, 13-4806 (4th Cir. 2015), the court held that the probationers’ knowledge of the warrantless search condition in Griffin and Knights were “critical” to the Supreme Court’s determination that the probationers had a diminished expectation of privacy in their home.   (A pre-Griffin case in the Fourth Circuit had already come to this conclusion, and the Fourth Circuit determined that none of the Supreme Court case law since then had explicitly overruled this principle).   Thus, the police officers violated his rights when (acting with what was likely only reasonable suspicion) they entered his home with a drug dog and found narcotics behind a ceiling tile in the bathroom.

This creates a circuit split on this issue, though the issue is narrow enough that it seems doubtful that the Supreme Court will take notice.  Meanwhile, the Fourth Circuit decision is unlikely to result in a significant setback for the government; the most probable effect of the ruling will be that prosecutors in the Fourth Circuit will now simply seek to add a warrantless search condition to every probationary sentence.