Circuit Court Cases

Since its inception nearly fifty years ago, the special needs doctrine has frequently had an Orwellian aspect to its reasoning.  On its face, the doctrine is sensible enough: if the police (or any government official) are conducting an operation distinct from their law enforcement function, there is no reason that the strict probable cause and warrant requirements should apply.  The Court has reasonably applied this principle to health inspectors, drug testing of railroad operators, and searches at the national border.  Less reasonably, the courts have applied this principle to police searches of  junkyards for stolen vehicles, suspicionless searches at airports, drunk driving checkpointsdrug testing in schools, and most recently, DNA tests of arrestees.  Often the stated rationale for the government conduct is virtually indistinguishable from a law enforcement purpose.  For example, lower courts have consistently approved of police conducting searches to prevent terrorist activities on subways or ferries, under the theory that the purpose of the searches is not to catch terrorists but to keep the public safe from terrorist activity.  I have previously written about the dubious rationales of special needs searches, concluding that the doctrine has become “an inconsistent tangle of case law, justified by a broad Fourth Amendment loophole whose premise–that detecting and preventing violent crime is not a law enforcement purpose–borders on the absurd.” Courts have only rarely pushed back on the state’s use of the special needs doctrine.  In City of Indianapolis v. Edmonds, the Supreme Court rejected vehicle checkpoints designed to detect narcotic smuggling.  In Ferguson v. City of Charleston,  the Court rejected a city plan to force drug testing on all pregnant women who sought treatment in public hospitals.  And the Eleventh Circuit ruled that the special needs doctrine did not allow police to search everyone who gathered to participate in a political protest.   In all of these cases, courts were challenging the breadth of the “no law enforcement purpose” rationale.  For example, the Eleventh Circuit rejected the theory that suspicionless searches at public protests were meant to protect the safety of the public, because the goals of public safety and law enforcement were “inextricably intertwined” in this context.  As the court explained:

[Under the government’s argument], a search intended to enforce a given law would be permissible so long as the government officially maintained that its purpose was to secure the objectives that motivated the law’s enactment in the first place (e.g., public safety) rather than simply to enforce the law for its own sake.

TANF       drug test

Now the Eleventh Circuit has limited the special needs doctrine in another context.  In Lebron v. The Secretary of the Florida Department of Children & Families, the court reviewed a Florida statute that required all applicants for welfare benefits (known as Temporary Assistance for Needy Families, or “TANF”) to pass a drug test as a prerequisite to receiving benefits.  Florida argued that this drug test was a special needs search because it fulfilled three purposes other than law enforcement: “(1) ensuring TANF participants’ job readiness; (2) ensuring the TANF program meets its child-welfare and family-stability goals; and (3) ensuring that public funds are used for their intended purposes and not to undermine public health.”  Florida also argued that welfare applicants were like schoolchildren in that they had a lower reasonable expectation of privacy, because  “by seeking TANF benefits, applicants voluntarily subject themselves to heightened regulation, and thus have limited legitimate expectations of privacy.”  Thus, according to Florida, the balancing test between the individual’s expectation of privacy and the state’s special need swung in favor of the state. The Eleventh Circuit had already affirmed a preliminary injunction barring Florida from the drug test, and this week the court affirmed the trial court’s permanent injunction, thus officially overturning the Florida law as unconstitutional.  The Eleventh Circuit was skeptical about the claim that welfare applicants had a lessened right to privacy, explaining that “citizens do not abandon all hope of privacy by applying for government assistance.  By virtue of poverty, TANF applicants are not stripped of their legitimate expectations of privacy — they are not employees in dangerous vocations or students subject to the parens patriae power of the state.”  But the court really rested on its decision on its rejection of the application of the special needs doctrine in the first place:

Encouraging employability, protecting children, and conserving public funds are general — and unquestionably legitimate — public concerns. But empirical evidence indicates these needs are not specific to or special for TANF applicants, nor is drug testing essential to ensuring the success of the TANF program as a whole. The government’s stated needs are general concerns, proffered only at a high level of abstraction and without empirical evidence, and thus do not justify an exception to the Fourth Amendment.  The State claims, nevertheless, an interest in preparing TANF applicants for the workplace. But government generally wants its citizens to be able to find and keep jobs — the State does not desire work-readiness only for the TANF population. Similarly, while it claims an interest in protecting children from drug use by TANF parents, the State has presented no evidence that children of TANF parents face a danger or harm from drug use that is different from the general threat to all children in all families. After all, the State acknowledges that drug use harms all individuals and families, but the State does not — and cannot — claim an entitlement to drug test all parents of all children.

Nor do we see a special need from the State’s desire that government funds are spent wisely. An interest in fiscal responsibility inheres in all public programs, and the interest is real. … The State has presented no evidence demonstrating that drug testing saves a significant portion of TANF funds that would otherwise be spent on drugs. Indeed, the State has made no attempt to quantify even in a general way the amount of TANF money that is otherwise wasted on the purchase or use of drugs. Nor could it do so on the record that was presented to the district court. A government concern that a wholly undefined, albeit a very small, share of a program’s expenditures will be squandered cannot easily fit within the closely guarded category reserved for substantial special needs without exploding that carefully cultivated doctrine.

We do not foreclose (nor could we) the possibility that government could establish a special need if a voluntary benefits program as a whole would be rendered ineffective without suspicionless searches. In the area of unconstitutional conditions, courts have considered the germaneness of an incursion on constitutional rights to the government’s legitimate objectives. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 386 (1994) (requiring that courts determine whether an “essential nexus” exists between the “legitimate state interest” and the condition imposed by the government). A similar germaneness analysis might justify a special need for suspicionless drug testing when essential to the implementation of a voluntary government benefits program. Thus, for example, if the government sponsored experimental pharmaceutical trials, it might have a unique concern in drug testing participants to ensure drug interactions did not compromise the results or endanger participants. Similarly, if a state provided a free drug treatment program, it might have a special need to test participants to monitor progress and tailor treatment. In this case, and on this record, however, suspicionless drug testing of all TANF applicants comes nowhere near meeting this standard — the State has not demonstrated that the TANF program as a whole has been compromised without suspicionless searches. Quite simply, we see no essential nexus between the legitimate state interest and the condition imposed. Put differently, the fit is not reasonably proportionated to the harms the State seeks to avoid.

The court suggests a couple of interesting standards here.  First, it implies that a special needs search will only be permissible if the government program “would be rendered ineffective without suspicionless searches.”   Interestingly, some of the existing special needs searches (such as drunk driving checkpoints) would meet this standard, while others (such as drug testing all students involved in extracurricular activities) would not.  The Eleventh Circuit also proposes borrowing a test from the unconstitutional conditions doctrine: that there must be an “essential nexus” between the suspicionless search and the purpose of the government program.  Once again, not all existing special needs searches would pass this test (drug testing of students again comes to mind).  While it is unlikely the courts will backtrack and overturn the validity of existing special needs searches, hopefully thoughtful cases like Lebron will bring some necessary clarity and sensible limits to the growing use of the special needs doctrine.

The Seventh Circuit just decided a case involving the scope of a consent form in the context of a computer search.   In United States v. Price, the police suspected that the defendant had child pornography photos on his laptop computer, and they asked him to sign a consent form.  The form was a standardized form (that is, not specifically designed for computer searches), and it stated that the suspect consented to “a complete search of _______ at this time” by a specific police officer.  The investigating officer in the case (Detective Morrow) filled the blank with the words “laptop computer” and listed herself as the officer authorized to conduct the search.   Detective Morrow then took the computer and brought it to forensic experts at the police department, who were able to find the pornographic images on the hard drive.

In front of the Seventh Circuit, the defendant claimed that the words “at this time” and the listing of Detective Morrow as the officer allowed to conduct the search only authorized an immediate search by Detective Morrow herself, not a later search by forensic experts.  The government pointed out that while the defendant was signing the form, Detective Morrow “explained to Price that she wasn’t trained in computer forensics and that other law enforcement officers would have to conduct the search of the laptop.”  The Seventh Circuit had no trouble rejecting the defendant’s argument:

[Defendant’s position] is not what a reasonable person would have understood in these circumstances. Detective Morrow had just explained that she lacked the training to search the laptop herself and would have to take it to other officers with expertise in computer forensics. On Price’s interpretation of the facts, the consent form limited the scope of his consent to a search that he knew could not take place. No reasonable person would share that view, which reduces the consent to a meaningless exercise.

Instead, a reasonable person would have understood the scope of the consent in light of the officer’s request, which sought permission to take the laptop to properly trained officers who would conduct a complete forensic search. The district court did not plainly err in holding that Price voluntarily consented to the search of his laptop; the consent was not limited to an immediate search by Detective Morrow alone. Price’s suppression motion was properly denied.

This is not a surprising ruling…the court is rejecting a formalistic parole-evidence type rule in favor of a more flexible rule that looks at the totality of the circumstances.  By the plain meaning of the consent from, Price would almost certainly win his case, but the court was willing to look beyond the plain meaning.  Of course, there is still a danger to police officers using standardized forms for computer searches.  In this case, the trial court credited Detective Morrow’s testimony that she modified the scope of consent with her verbal statements.  But the entire point of using a written form is to ensure that there is an unimpeachable record that the defendant consented to the search.  The form used by Detective Morrow did the opposite–it created ambiguities in the record as to the scope of the search.  Luckily for the police, in this case the court deemed that the ambiguities were harmless.

One of the more interesting Fourth Amendment issues created by our ubiquitous use of cell phones involves law enforcement obtaining historical records of our cell phone’s location in order to determine where we were at any given time in the past.  The Eleventh Circuit recently ruled in United States v. Davis in that the government must obtain a warrant before it can access this information; the case is now on appeal to the entire circuit en banc.

cell phones       time machine

This issue has already been considered by the Third Circuit and the Fifth Circuit, both of which refused to apply the Fourth Amendment to the acquisition of historical cell phone location data.  But in Davis, the government received over 11,000 records of the defendant’s location–one for every eight seconds during the sixty-seven days covered by the records.  In order to acquire these records, the government did not seek a warrant, because the prosecutor argued that under the third party doctrine of Smith v. Maryland, a warrant was unnecessary. (The government did obtain a “D-order” under 18 U.S.C. § 2703(d) of the Stored Communications Act, which only requires that the government demonstrate “specific and articulable facts” that the information is “relevant and material” to an ongoing criminal investigation).

The judgment of the Davis case is consistent with Justice Alito’s concurring opinion in United States v. Jones.  The Jones concurrence held that although following a car over public highways for one trip was not a Fourth Amendment “search,” tracking the movements of a person’s car over public highways for one month did constitute a search.   In Davis, the government tracked the defendant’s movements for sixty-seven days; thus, under the mosaic theory of the Fourth Amendment, tracking the defendant for such an extended period of time violated his reasonable expectation of privacy.   Thus, there is a good chance that on these facts, the Eleventh Circuit might uphold the judgment of the three-judge panel.

But the underlying holding of the Davis case did not rely on the mosaic theory.  The court went further and held that any use of cell phone location data constituted a search:

“Davis has not voluntarily disclosed his cell site location information to the provider in such a fashion as to lose his reasonable expectation of privacy.

In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation. Nonetheless, for reasons set forth in the next section of this opinion, we do not conclude that the district court committed a reversible error.”

The ACLU has duly filed an amicus brief for the en banc appeal in Davis, urging the panel to let the original decision stand.  A lawyer for the ACLU explained their position in a recent article in the Wall Street Journal:

“[Cell phone location information] gives the police a power that they have never had before in the history of law enforcement, which is a time machine into where somebody was going and what somebody was doing in the past,” said Nathan Freed Wessler, an American Civil Liberties Union lawyer who has also filed a brief in the case. “It’s an incredibly powerful investigative tool. And with an appropriate warrant police can get that, but what is absolutely essential is they can’t just sort of walk their way into that time machine without demonstrating probable cause.”

Thus, according to the Eleventh Circuit’s opinion, the government should never be able to use the positional information from our cell phones to learn our past location, even if the government is only seeking records from one specific point in time.  The ACLU argues that this is analogous to using a “time machine” to spy on our past movements, and argues that police have never before had this power.  But this is surely an exaggeration.   This type of “back-dated” surveillance is quite common.  Surveillance cameras in public places have been around for decades.  And the government has routinely used historical data to track the past movements of suspects–they could tell when a certain car entered a parking garage or crossed a toll bridge; they could check the person’s home phone logs and determine whether the person was present at home at a certain time;  they could tell when a person punched in at work; and so on.

As is usually the case, the difference between historical cell phone location data and other, more familiar types of historical surveillance is a difference in degree, not kind.  Cell phone location data makes law enforcement more efficient–if the police want to know whether a suspect was at a certain location at a certain time, they are much more likely to be able to determine that fact now than they were in the past with more traditional techniques.  As the government notes in its brief, this type of information can absolve the innocent as well as inculpate the guilty; the innocent suspects would then be spared being the subject other, far more intrusive surveillance and investigative techniques.

If we apply the Katz test to this question, it seems unlikely that an average person would believe that they have a reasonable expectation of privacy in their physical location.  The vast majority of people make no secret of their physical location at any given time; the very idea that their location should be kept secret would strike them as strange.  It is only when the government is trying to obtain massive amounts of information covering an extended period of time that the mosaic theory kicks in that the government begins to learn truly private information about the person, thus transforming this surveillance into a Fourth Amendment search.

Granted, there are certain times when individuals–both the innocent and the guilty–would like their location to be secret.  But if that is the case, we would expect a reasonable person to take precautions so that others would not know where he or she was.  In the past, that would perhaps mean wearing a disguise, or sneaking away at night, or avoiding populated areas.  In the modern era, it now also means turning a cell phone off, or leaving the cell phone at home, or using a cell phone that cannot be traced back to its user.  This requires extra effort on the part of the individual who wishes to remain hidden,  but–again–this is not a new phenomenon.  For example, assume a person wishes to make a secret trip to a motel.  The most convenient method of doing so would be for her to drive her own car and park it outside the motel.  But this runs the risk of somebody seeing  the license plate on the car, either while it is being driven or while it is parked outside.  Thus, to ensure secrecy, the person must either walk, or use a different car, or park some distance from the motel.  Does imposing these restrictions mean that the person’s reasonable expectations of privacy are being violated?  Should we therefore preclude police from the conducting  warrantless checks of the license plates of cars that are in public view?

Certain technological advances–such as cars and cell phones–have become ubiquitous because they provide an enormous increase in convenience.  As it turns out, these advances also provide the police with more efficient tools to conduct criminal investigations.  As long as these tools are not revealing previously secret, hidden, private information (and a person’s physical location does not seem to fit into that category), it makes sense to allow the police to use these tools to save resources, track down the guilty, and exonerate the innocent.