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Federal look into Breonna Taylor's death casts a wider net
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One of the more popular aspects of the George Floyd Justice in Policing Act is the provision that bans so-called “no-knock” warrants for all federal law enforcement and revokes all aid to state and local police forces unless they follow suit. Given the vast amount of money that the federal government makes available for law enforcement, this is likely to be an effective way to change protocols across the country: by some accounts, various federal agencies pay over a billion dollars a year to state and local police forces.

No-knock search warrants became particularly infamous in 2020 because of the death of Breonna Taylor in Louisville during the execution of a no-knock warrant. These warrants are relatively common: one estimate is that over 20,000 no-knock search warrants are executed each year. They are used most often in drug cases–by some estimates, over 80% of these warrants are for suspected drug locations. Police need only demonstrate a reasonable belief that the usual practice of “knock and announce” (followed by an appropriate waiting period of 15-20 seconds) would lead to the destruction of evidence or would endanger officers. But by now we have enough evidence that the potential risks of these warrants far outweigh the potential gains.

The justification for these warrants is that they prevent the suspects from destroying evidence, and that they may be safer for officers because the suspects do not have time to prepare a violent response. Given the fact that a traditional warrant execution only gives the residents of the building fifteen to twenty seconds of warning before police force entry, there is little chance that criminals could effectively destroy of all of the evidence of their crime, even if it something as disposable as drugs, in such a short period of time. And an empirical study in Kansas City found no evidence that no-knock search warrants are safer than traditional warrants. Instead, it appears that these warrants endanger the lives of the police who execute them and the lives of those in the home being searched. Although there is plenty of anecdotal evidence of innocent individuals like Taylor being killed in no-knock raids, there is not very much in the way of hard statistics about how many deaths each year occur as a result of this practice. A New York Times investigation found “only” 81 civilian deaths and 13 police deaths over the six year period between 2010 and 2016, but that investigation only looked into raids conducted by SWAT teams, and so did not cover all of the no-knock warrants during that time period. Although this is a small percentage of the total number of deaths caused by police officers, abolishing no-knock warrants is almost certainly the lowest-hanging fruit as far as reforms go–the move will increase the safety of civilians (and officers) without costing much in the way of crime control.

One of the more popular aspects of the George Floyd Justice in Policing Act is the provision that will mandate body cameras for all federal police officers and provide federal funding for state and local police forces who purchase them. We have seen so much body camera footage over the past few years that it is easy to assume that they are already ubiquitous, but as of 2020, only 45% of police departments used them. The George Floyd legislation could help with this; although the federal police officers that it directly affects only make up 20% of the 700,000 police officers nationwide, the funding the legislation provides should spur widespread adoption of these devices throughout the country. Still, it would be better if the legislation went further: Congress could, for example, withhold all federal funding from local police agencies that do not mandate body cameras within a specific time period; the George Floyd Act uses this tactic to force local police to ban chokeholds and forgo no-knock search warrants.

Although body camera footage has been integral to exposing some of the worst instances of police misconduct, and has helped to exonerate other police officers when their use of force is justified, its use is still controversial. A recent Washington Post article argues that without proper disclosure rules, body cameras could be ineffective in deterring police conduct. The Economist came to a similar conclusion after reviewing the varied disclosure rules of different states, from North Carolina and Louisiana, which (along with nine other states) require a court order to disclose body camera footage to Ohio, which makes the footage part of the pubic record. Swift and relatively easy disclosure policies are critical to enhance the effectiveness of body camera footage.

The Post article cites a meta-study which found that there was not yet conclusive evidence that wearing body cameras reduced the instances of police inappropriate use of force. However, the lack of conclusive evidence is likely because body cameras are still relatively new devices, and thus their effect on police conduct (and their use in trials and disciplinary proceedings) has not yet registered. And although we have become sadly accustomed to seeing video footage of police shootings, the vast majority of police lethal use of force cases did not have video footage–of the the 6,329 lethal police shootings since 2015 that are tracked in the Washington Post database, only 842 (13%) could be confirmed to have body cameras.

The meta-study did find a number of beneficial effects of body cameras, such as a lower rate of use-of-force complaints against police officers–this could mean that officers with body cameras actually use less force, or that those who interact with police are less likely to file baseless complaints against officers when the interaction is caught on video. Either effect would be an improvement. And body camera footage can be valuable for prosecutors in courtroom as well, especially in drunk-driving cases to prove the defendant’s inebriated state.

But perhaps the best argument in favor of universal use of body cameras is the increased transparency they provide. Without the existence of body cameras–and the swift disclosure of their footage–community members and the public at large will remain uncertain about whether the killing was justified, especially in today’s political climate in which many communities strongly distrust the police. This point is highlighted by a recent shooting in Minneapolis by federal agents in which there was no video evidence of the event. The police officers reported that the victim refused to comply with police orders and then pulled a handgun. Toshira Garraway, the founder of Families Supporting Families Against Police Violence, responded: “We no longer have faith in just believing the narratives that the police give us. They have forfeited their right to just tell us a story. We need facts, and the fact is any video footage.” The transparency that police body cameras create can not only provide evidence of police misconduct when it does occur, but also help to re-build legitimacy to police actions when they are justified.

We are have reached the one year anniversary of the murder of George Floyd, and the past year has seen an unprecedented amount of activism surrounding the nature of policing in general and race relations more broadly. Sadly, the issue of lethal police use of force is hardly a new issue; six years ago I wrote about the Washington Post’s then-new database on police shootings, and I noted that “[o]ver the past three years as we have tried to come to terms with the many high-profile police killings across the country.” And the issue of police use of force obviously stretches back far before that–it has been a problem for decades, if not centuries. If there is a silver lining regarding the social and political upheaval that we are now undergoing on this issue, it is that we are finally dealing with this issue head on, and therefore we may have a chance to make progress.

Unfortunately, a lot of the past year has seen more heat than light brought to bear on the question of police use of lethal force, on both sides. Given the nature of the problem, this level of passion and raw emotion is understandable. And any serious effort to change status quo needs to generate political energy and grass-roots support to be successful. But the ultimate goal has to be real, meaningful, achievable reform, which means diagnosing the problem accurately and then building coalitions to generate majority support for a sustained solution.

Most of the protests–and most of the media coverage of the issue–has focused on the fact that police use lethal force against Black Americans at a higher rate than against other groups. This disparity has led to calls for greater diversity and implicit bias training for police officers, as well as a broader political movement to address systemic racism that exists throughout society. These are all urgently important issues, and our country will be a better one because of the challenging discussions we are now having and the reforms that they will bring about, inside and outside of the criminal justice system. But as many reformers are pointing out, the issue of police lethal use of force does not only affect Black Americans; the Washington Post database notes that victims of police killing come from across the racial spectrum; given the higher numbers of whites than Blacks in the American population, police kill twice as many white people as Black people.

Thus, even if all of the factors that lead to a disproportionate number of Black victims were eliminated, and Black citizens were victims of police shootings to the same degree as white citizens, we would still see over 700 police killings per year, including roughly a hundred Black victims.  Some percentage of these killings are unjustified, and certain reforms (such as increased use of body cameras and the elimination of qualified immunity for police officers) will help to deter such actions. But most of these police killings are justifiable under the law. Thus, we need to think not just in terms of eliminating unjustified killings, but also work on reducing the much larger number of justified killings–that is, we need to work towards a world in which police are almost never put into a position where it becomes necessary to use lethal force. By re-framing the debate in these terms, we are more likely to find a consensus among the police and those being policed.; law enforcement officers never want to find themselves having to make life-or-death situations, even if their actions are ultimately found to be justified. And these situations are obviously dangerous for police officers as well: over a hundred police officers are killed on duty each year. Politically, reaching a consensus with the police and their supporters is necessary: even at the height of the protests in the summer of 2020–the political zenith for those who seek to challenge the way we police crime in this country–a majority of the public still supported the police and rejected calls to abolish or even cut funding to police departments. Thus, arguing that the police are racist and calling for police forces to be disbanded is not a way to build the coalitions which are required to achieve the necessary reforms.

Luckily, there are a number of common sense reforms that are supported by a majority of Americans that can make a real difference in reducing the instances of police lethal use of force. Banning no-knock search warrants, requiring body cameras for every police officer, banning chokeholds, enhancing community policing efforts, increasing funding for mental-health professionals to work with police departments, increased police training, and emphasizing de-escalation tactics in training are all policies that could go a long way to reducing the number of violent and potentially lethal encounters between civilians and police. Many of these reforms are found in the federal George Floyd Justice in Policing Act, which has passed the House. In later posts, I will break down some of these potential reforms and evaluate how effective they might be.

In a post last spring, I discussed the growing use of “Stingrays” by law enforcement officers.  These devices (technically known as International Mobile Subscriber Identity (“IMSI”) catchers) simulate a cell phone tower and thus “trick” a cell phone into sending it data.  These devices are critical for law enforcement surveillance purposes, since criminals will frequently use a specific cell phone for a brief period of time before discarding it and obtaining a new one.  Thus, police officers who know that a suspect is involved in criminal activity and who have have sufficient evidence to obtain a Title III order to wiretap the suspect’s phone are faced with a  dilemma–they have the legal right to listen in on the suspect’s cell phone conversations, but they are unable to do so because there is no way to tell the phone company which phone needs to be tapped.  Armed with a Stingray, the law enforcement officers can fool the suspect’s phone into connecting to the simulated cell phone tower and sharing its identifying information.  The police are able to then take this information and give it to the cell service provider, who can then set up a wiretap for the suspect’s phone.

stingray

The problem is that a Stingray will usually gather not just the suspect’s identifying phone information, but also the identifying phone information of everyone else in the area.  Practically, police solve this problem by following the suspect from location to location with the Stingray and determining which cell phone is consistently among the group that is being detected–essentially using process of elimination to determine which piece of identifying data belongs to the suspect’s phone.  But legally, this method raises Fourth Amendment concerns, since the government is gathering information from many innocent people in the process.

I argued earlier that the government should not need a warrant to use Stingrays in this manner, because all they learn about these third parties is the IMSI of the third party’s cell phone–mere “address” information that is already shared with third parties and which does not contain any remotely private information about the user (indeed, the vast majority of cell phone users do not even know their cell phone’s IMSI, nor would they notice or care if other people knew it).  Thus, using a Stingray to obtain a suspect’s IMSI does not implicate the Fourth Amendment in any way.

However, the federal government is taking no chances, and the Department of Justice issued a memo in September of this year that requires its agents to obtain a search warrant prior to using a Stingray device, unless an emergency situation exists.  Consistent with this policy, the government has conceded this point in recent court cases.  This concession makes sense in most situations–if the government already has sufficient information to obtain a Title III wiretap order against an individual, then the government surely has sufficient information to obtain a search warrant,.  Unfortunately, this self-imposed requirement does limit the usefulness of Stingrays in some contexts.  In many cases, the government only has reasonable suspicion that the suspect is committing a crime, and may only want to obtain a pen/trap order to determine whom the suspect is calling and how often–information which is not constitutionally protected but which can be very useful in developing probable cause.  But by requiring probable cause at the outset, the government is denying itself the ability to use this basic investigative tool if the suspect is sophisticated enough to frequently switch cell phones.

More recently, a federal magistrate court imposed even more restrictions on the use of Stingray devices.  In a recent order, Magistrate Judge Iain D. Johnston of the Northern District of Illinois summarized the restrictions that he placed on law enforcement officers when he grants a warrant for using a Stingray.  Essentially Judge Johnston sets three requirements for law enforcement:

(1) Officers must make reasonable efforts to minimize the collection of third party cell phone identification information.

(2) Officers must destroy all third party identifying information that they do collect within 48 hours of its collection.

(3) Any data obtained from the Stingray device can only be used to identify the target’s identifying cell phone information and for no other purpose.

The first two limitations are sensible enough and do not seem to affect the effectiveness of the surveillance.  The use limitation of the third requirement, however, seems unnecessary–there may be a number of legitimate and useful other ways for law enforcement to use the information.  For example, once the police know the target’s IMSI, they can use the Stingray device at a later time to determine the suspect’s general location (This information is not protected under the Fourth Amendment unless it is continuously protected over a long period of time, as in the Jones case).  And some versions of the Stingray device may be able to operate as a pen register, telling the police the numbers the target is calling and the length of those calls.  This information is also unprotected under the Fourth Amendment (there are statutory restrictions on such information, but they are far lower than the probable cause that the police have already developed before they get a warrant).  But for now, the federal government seems content to live with these restrictions and as far as we know, has not challenged them in court.

 

 

http://www.crookedbrains.net/

recent AP article reports on the growing trend of stashing miniature GPS devices inside items that are likely to be stolen and then tracking those items after the theft occurs.  The article describes a string of armed robberies on Long Island in which the perpetrator stole cash from gas stations and convenience stores.  Police investigators then slipped a miniature GPS device into a stack of cash that the perpetrator was likely to steal, and then–once the money was in fact stolen–tracked the perpetrator for a number of days until arresting him.  (The article does not say how the police were able to predict where the robber was going to strike next; presumably they provided these miniature devices to a number of prospective theft victims).  This law enforcement tool has been used in different ways for many years: the article correctly notes that police use a car’s built-in GPS tracking system to trace the car after it has been stolen, and also notes that pharmacists frequently have a pill bottle pre-loaded with a GPS tracker to give to a robber who steals drugs.  In a new twist, police officers who are engaged in a high-speed car chase are now shooting miniature GPS devices out of a special air cannon mounted in the front of the police car.  Once the GPS device sticks to the car, the police can call of the dangerous chase and simply track the criminal to his final destination.

gps-air-cannon-copy

On its face, thes appears to be a valuable law enforcement tool that can help police solve crimes.  Yet the AP news story’s headline delivers a warning: “Hidden GPS devices to track suspects raise legal concerns.”  An ACLU spokesperson argues that “As a baseline, I don’t think people should be tracked with GPS without a warrant,” echoing the theme of the 2012 Supreme Court case United States v. Jones, in which a plurality of the Court held that using a GPS device to track an individual over public roads for four weeks violated that individual’s reasonable expectation of privacy.

These concerns seem alarmist, at best.  Even the concurring Justices in Jones did not imply that any tracking with a GPS required a warrant–they were only concerned with  tracking  over an extended period of time, which would give law enforcement a “mosaic” picture of someone’s life.  And here we are talking about GPS devices which are attached to stolen property–property, in other words, in which the owner has no reasonable expectation of privacy.   This remains true even if the police decide to continue the tracking for a few days or weeks after the theft to see if the stolen property leads them to other contraband or other criminals.  The only feasible argument against this use of GPS tracking would be that the actual criminal might transfer the stolen property–and with it, the GPS device–to an innocent third party, who would then be tracked by the police.  Even then, of course, the GPS device would only show the location of the stolen goods, which the police are entitled to recover even from innocent third parties.

It is certainly important to be vigilant as law enforcement officers develop and employ new technologies in their investigations–we have to ensure that there is the proper balance between liberty and security.  But some uses of new technologies increase security without infringing on our liberty or privacy rights in any significant way.

locked cell phone

This week the New York Times published an op-ed which argued for allowing law enforcement officers with search warrants greater access to the cell phone data of criminal suspects.  The piece was co-written by an impressive set of authors: the District Attorney of Manhattan, the chief prosecutor of Paris, the commissioner of the City of London Police, and the chief prosecutor of the High Court of Spain.  They note that many modern cell phones are password protected, and that Apple and Google (whose operating systems together run about 96% of cell phones) no longer have a copy of that password and therefore police cannot access these cell phones even if they have legal authority to do so.  The piece argues that once law enforcement officers have obtained a warrant (having thus proved to a neutral magistrate that there is probable cause to believe there is incriminating information on the cell phone), there should be no technical barrier (such as password protection) to extracting that information from the digital device.  As they argue:

In the United States, Britain, France, Spain and other democratic societies, the legal system gives local law enforcement agencies access to places where criminals hide evidence, including their homes, car trunks, storage facilities, computers and digital networks.

Carved into the bedrock of each of these laws is a balance between the privacy rights of individuals and the public safety rights of their communities. For our investigators to conduct searches in any of our jurisdictions, a local judge or commissioner must decide whether good cause exists. None of our agencies engage in bulk data collection or other secretive practices. We engage in targeted requests for information, authorized after an impartial, judicial determination of good cause, in which both proportionality and necessity are tested.

It is this workable balance that proscribes the operations of local law enforcement in our cities, and guides our residents in developing their expectations of privacy. But in the absence of laws that keep pace with technology, we have enabled two Silicon Valley technology companies to upset that balance fundamentally.

Judging by the comments posted by the Times, the op-ed was not well-received by the readership: readers argued that encryption protects our data from thieves and hackers as well as from police; that political dissidents and activists rely upon it to communicate safely; and (echoing Riley v. California) that the sheer amount of information on a cell phone means that they need to be protected, even from police officers with search warrants.  The Electronic Frontier Foundation predictably warned that the piece was “nothing more than a blatant attempt to use fear mongering to further their anti-privacy, anti-security, and anti-constitutional agenda.”

It is hard to see what is “unconstitutional” about giving law enforcement access to information once they have obtained a warrant for that information.  Just because we now have the ability to easily password-protect  much of our personal data doesn’t mean that we somehow have greater constitutional rights in that information than we did twenty years ago.  Indeed, if the police had a search warrant for a fine cabinet, they should be able to look inside the file cabinet whether or not the owner has locked it.  The same argument should apply to cell phones–once a court has authorized the search, the police need to (and should be able to) conduct that search.

The real problem–and one that the authors of the op-ed do not really address–is how to go about ensuring that the police do have this ability once a warrant is issued.  The op-ed merely states that “regulators and lawmakers in our nations must now find an appropriate balance between the marginal benefits of full-disk encryption and the need for local law enforcement to solve and prosecute crimes.”  But it is one thing to ask for a “balance” and another to figure out what laws need to be passed to ensure that balance.  One option would be to require the manufacturers of digital devices to provide the government with a “master key” to every cell phone–but the danger of abuse in that context becomes quite obvious.  Another option would be to require the companies that design operating systems to keep a copy of every password (thus making it illegal for Apple or Google to use the operating systems they are currently using)–but this seems like a particularly severe government intrusion into the private sector.  Yet another option would be to allow police to compel the password from the owner of the device, but this raises serious Fifth Amendment questions.  Some courts have held that forcing a suspect to give up his own password is akin to self-incrimination, citing a United States Supreme Court decision which stated that the Fifth Amendment protects a defendant from producing documents which may be incriminating.

In short, the op-ed correctly identified a problem, but was silent on the solution.  Unless and until law enforcement officers develop the tools to break through password-protected phones, this problem will grow more and more severe until one of the more draconian solutions listed above becomes necessary.

 

This week the Washington Post unveiled a database it has been compiling regarding the fatal police shootings in this country.  This is essential data that, shockingly, nobody had been officially tracking before.  Over the past three years as we have tried to come to terms with the many high-profile police killings across the country, any serious analyses and conclusions were limited by the fact that no organization had been keeping track of this number in any systematic way.  Bravo to the Washington Post for doing what newspapers, at their best, should be doing.  One small critique up front–it seems to me that the database should keep track of all police killings, not just police killings by firearm.  Two of the most controversial police killings over the past year have been the chokehold death in Staten Island, and the death in the police van in Baltimore–neither of which would show up in these numbers.
What do the numbers say?  The raw number is 463 killings in the first six months of 2014.  I am not surprised by the absolute number of killings.  Obviously any killing by a police officer is one too many, but nationally the police engage in over twelve million arrests per year–and certainly if we add in the number of non-arrest police-citizen encounters, that number grows even higher.  Given those numbers, and the high prevalence of gun ownership in this country (see below) some amount of violent encounters between police and civilians is unavoidable.  (The numbers also go both ways–last year 126 police officers were killed in the line of duty).  And of the 463 fatalities so far this year, the suspect was armed in 387 of them, which is at least some evidence that many of those killings were justifiable.
Having said that, it does not take too much digging into the numbers to get to some truly startling and troubling numbers.  The most troubling is the racialized aspect of the statistics.  Although whites made up almost exactly 50% of those who were killed, they made up only 27% of the unarmed civilians being killed–blacks and Latinos made up 75% of that number.  This confirms a lot of what many studies have told us about how implicit bias can change a police officer’s instinctive reaction to a situation depending on the race of the subject.  It also implies that a lot of the killings of unarmed civilians could be avoided–there is no legitimate reason why the numbers for non-whites should be disproportionate to the numbers for whites.
One other point which I can’t resist making.  I am currently in Oxford teaching Comparative Criminal Procedure, and I opened my class today talking about these numbers and the new Washington Post database (it is unrelated to the topics we are discussing in class, but it is a criminal procedure issue and a very important one).  After I went through the numbers, one of the students naturally asked–since we were in a comparative criminal procedure class–how the United States numbers compared to the British numbers.  I looked it up–Britain (with 20% of our population) has had 55 police shootings in the past 24 years–i.e., less than two per year.  Of course one of the big differences (at least to me) is the difference in gun laws between the two countries.  Almost none of the police here in Britain carry guns–because almost none of the civilians are allowed to carry guns.  When a police officer in the United States approaches a suspect, s/he has to always assume the suspect is armed with a gun, which sets a certain dynamic in play before contact even begins.  In Britain, the officer always assumes the opposite.  I don’t think there is the only reason that we have so many more police shootings as a percentage of our population, but it is clearly a significant factor.

In a 5-4 decision yesterday, the Supreme Court held in United States v. Patel that hotel owners cannot be required to turn over their registries to law enforcement without some kind of judicial review.  The case centered on a Los Angeles municipal code provision that required all hotels to keep a registry with information about there guests and to turn the information over to law enforcement upon request.  Law enforcement officers did not need to make any kind of showing of need before making the request, nor did the officers need to get judicial approval.  A hotel owner sued the United States government, mounting a facial challenge to the ordinance on the grounds that it allowed for a suspicionless search that violated its rights.  Five Justices agreed.

There are three interesting aspects to this opinion:

First, eight of the Justices held that plaintiffs can bring facial challenges under the Fourth Amendment.  In my preview of this case, I predicted that the Supreme Court would not allow facial challenges because it would open the door to too many hypothetical cases.  This prediction proved to be completely incorrect.  The Court noted that it allowed facial challenges in many other contexts, and that there was no reason to prohibit them in the Fourth Amendment context.  The Court also noted that a facial challenge to a statute can succeed even if there were some situations in which the search would be authorized by some authority other than the challenged statute:

Similarly, when addressing a facial challenge to a statute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional “applications” that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute.

Second, this holding will have an important effect on the development of the third party doctrine in Fourth Amendment jurisprudence.  Under the third party doctrine, an individual gives up all of his or her Fourth Amendment rights in an item or a piece of information if he or she hands it over to a third party.  That third party is free to give it to law enforcement, and the original owner of the item or document has no right to object.  Patel does not change any of that.  However, what if the third party–the hotel, the bank, or the internet service provider–does not want to turn the information over to law enforcement upon request?  Before Patel, the third party’s rights to object were relatively fuzzy, but Patel set out clear standards: the government must get some kind of “precompliance review” of its request before the third party can be forced to turn over the information.  This means either an administrative warrant (which is issued by a judge) or–if the government obtained a subpoena and the third party challenged the subpoena–a review of the subpoena by a judge or magistrate.  Granted, the standard for obtaining an administrative warrant or defending a subpoena is relatively low, but the requirement of precompliance review by a neutral judicial official is still a significant one.

Of course, none of this matters if the third party decides to cooperate with law enforcement–as has happened very frequently in the past.  But in the wake of the Snowden revelations and the public outcry that followed, more and more companies are beginning to assert their rights to keep this information from the government–both because the information has intrinsic value to them and because their customers are demanding more privacy.  Some companies, like Google, are challenging subpoenas more and more often.  Thus, for scholars and judges who complain about the third party doctrine, this may perhaps provide some solace–we still may not have the right to protect our information, but the companies we give it to are developing both the incentives and the legal ability to protect it for us.

The final aspect of the holding is one that flew a little bit under the radar, but that nevertheless is important.  The Patel Court assumed, without deciding, that a government search of the hotel’s registry qualified as a special needs search rather than a traditional law enforcement search.  The Court essentially said that there was no need to get into this question into more depth, because even under the lower “special needs” standard, the ordinance was unconstitutional, so it would clearly be unconstitutional under the more stringent law enforcement standard (which requires probable cause and–usually–a warrant).  But the very fact that the Court was willing to even make this assumption for argument’s sake is a bit troubling, and may presage yet another broadening of the already overbroad special needs definition.

Of course, the “special needs” justification has already been broadened way beyond the health and safety inspections of Camera and has been applied to searches which do little more than deter crime.  For example, as I discussed in an earlier article, almost every circuit court has held that the searches at airports are legitimate under the “special needs” doctrine, under the theory that they prevent terrorist action and thus protect public safety.  (The Supreme Court has yet to consider airport searches, but the Court has approved of them in dicta).   So already we have prevention of violent crime as a special need in order to keep society safe.  Likewise, the Supreme Court has approved of drunk driving checkpoints as a special need which keeps other motorists safe by preventing drivers from committing the crime of driving while intoxicated–which in a sense is per se reckless activity.

So we already apply the special needs search doctrine in order to prevent violent or reckless crimes–but at least those applications have some connection to protecting public safety.  Applying the special needs search doctrine to prevent drug use or prostitution in hotel rooms seems to be yet another step–a significant one–towards blurring the line between special needs searches and plain old fashioned law enforcement searches.  This was a line, for example, that the Court was unwilling to cross in Indianapolis v. Edmond.

To be fair, footnote 2 of Patel makes it clear that the Court is not making a decision one way or another on this particular issue.  So perhaps the Court simply wanted to make a broader point about the requirements for special needs searches and so decided to use Patel–even though in the end the search in question might not be an administrative search.  But this nuance may get lost as the months and the years go by, and many lawyers and judges will begin to think of Patel as the “administrative search case” and thus will think of the police accessing hotel records as a special needs administrative search.  Hopefully the Court can clarify this issue before that point.

 

 

 

A few months ago I wrote about (and strongly criticized) the Eleventh Circuit’s decision in United States v. Davis, in which the court held that the government needed to obtain a search warrant before it could access cell tower location information that located the defendant’s cell phone.  Now the Eleventh Circuit, in an en banc decision, has overturned the three-judge panel and held that the third-party doctrine applies to these records; thus, a warrant is not required.

cell_phone_towers

The court began by citing the Fifth Circuit decision which also applied the third party doctrine in deciding this issue.  Then the court applied Smith v. Maryland and found that the Davis case was legally no different from Smith:

For starters, like the bank customer in Miller and the phone customer in Smith, Davis can assert neither ownership nor possession of the third-party’s business records he sought to suppress. Instead, those cell tower records were created by MetroPCS, stored on its own premises, and subject to its control. Cell tower location records do not contain private communications of the subscriber. This type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to Davis, even if it concerns him. Like the security camera surveillance images introduced into evidence at his trial, MetroPCS’s cell tower records were not Davis’s to withhold. Those surveillance camera images show Davis’s location at the precise location of the robbery, which is far more than MetroPCS’s cell tower location records show.

The Court not only applies the third party doctrine, it presents a robust defense of the doctrine in this context, harkening back to the Katz test:

As to the subjective expectation of privacy, we agree with the Fifth Circuit that cell users know that they must transmit signals to cell towers within range, that the cell tower functions as the equipment that connects the calls, that users when making or receiving calls are necessarily conveying or exposing to their service provider their general location within that cell tower’s range, and that cell phone companies make records of cell-tower usage. See In re Application (Fifth Circuit), 724 F.3d at 613-14. Users are aware that cell phones do not work when they are outside the range of the provider company’s cell tower network. Id. at 613. Indeed, the fact that Davis registered his cell phone under a fictitious alias tends to demonstrate his understanding that such cell tower location information is collected by MetroPCS and may be used to incriminate him.

Even if Davis had a subjective expectation of privacy, his expectation of privacy, viewed objectively, is not justifiable or reasonable under the particular circumstances of this case. The unreasonableness in society’s eyes dooms Davis’s position under Katz. In Smith, the Supreme Court presumed that phone users knew of uncontroverted and publicly available facts about technologies and practices that the phone company used to connect calls, document charges, and assist in legitimate law-enforcement investigations. See 442 U.S. at 742-43, 99 S. Ct. at 2581. Cell towers and related records are used for all three of those purposes. We find no reason to conclude that cell phone users lack facts about the functions of cell towers or about telephone providers’ recording cell tower usage.

Although the third party doctrine has been routinely criticized, applying it makes sense in this context.  As the court notes, surely every reasonable person knows that the telephone company can track their general location using the person’s cell phone–how else could cell phones function?  And, notwithstanding the famous concurrence in United States v. Jones, a person generally does not have a reasonable expectation of privacy in a public place.

The en banc decision also provides an “alternative” justification for its ruling, which is that even if the third party doctrine did not apply, the search was “reasonable” because the intrusion into privacy was minimal, cell tower location information is routinely used by government investigators, Congress has explicitly endorsed this type of investigation in the Stored Communications Act, and the government’s interest in tracking down criminals is “compelling.”  Professor Orin Kerr had a number of withering critique of this alternative justification in his blog post; one of which was that the “reasonableness” test (as opposed to the warrant requirement) should only be applied in non-criminal cases:

A basic summary of the Supreme Court’s cases might run something like this: When the search involves some kind of non-criminal investigation or purpose, the warrant requirement is often suspended. In that non-criminal context, reasonableness instead becomes a general balancing of interests. The Court has been expanding the general balancing cases, most recently in Maryland v. King. But the Katz rule of a warrant by default is still the Supreme Court’s blackletter law for a traditional criminal investigation search.

In this case, the Eleventh Circuit appears to take a different approach. It begins with the Supreme Court’s non-criminal cases and then applies them to the context of a classic criminal investigation. Instead of the Katz rule of a warrant, the court begins with general balancing. It’s important to catch criminals, the court reasons, and the statute has some good protections given that this wasn’t such an invasive practice. So on the whole the government’s conduct based on reasonable suspicion seems reasonable and therefore constitutional.

This alternative holding is a major development, I think. It’s at odds with the usual rule that a criminal search requires a warrant, and instead replaces it with a totality of the circumstances inquiry into whether the criminal search was the kind of thing that we would generally say is good or would generally say is bad. There’s not only no warrant requirement, there’s no probable cause requirement: It’s just a free-floating reasonableness inquiry.

Professor Kerr has a good point here, but he might be fighting a losing battle.  In reality,  the distinction between “criminal searches” and “non-criminal searches” is becoming blurred almost beyond recognition.  Special needs searches have always been evaluated on a “reasonableness” standard, and many of them are nothing but criminal searches thinly masquerading as non-criminal searches (for example, testing for drugs in schools, stopping cars to check for drunk drivers, and searching passengers before they board an airplane).  Most recently, in Maryland v. King, the Supreme Court applied the reasonableness test to DNA swab of arrestees which was used to determine if the arrestee had committed any other crimes was not a “criminal search.”  Applying the reasonableness test to the obtaining of cell phone location data in a bank robbery investigation definitely pushes the envelope even further, but it continues a trend which has been building for a while.

Of course, this aspect of the Davis en banc decision is merely dicta, so perhaps nothing at all will come of it.  But as far as the holding of the case is concerned, the court has at least brought consistency back to this area of law.