All posts for the month December, 2014

In Maryland v. King, the Supreme Court allowed states to collect DNA samples from anyone arrested for “serious felonies.”  Writing in dissent, Justice Scalia scoffed at the limitation that the majority claimed to put on this principle:

The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].”  … I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any.   If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the
day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason. 

In a forthcoming article in Recent Advances in DNA & Gene Sequences, Professor Elizabeth Joh of U.C. Davis picks up where Justice Scalia left off and discusses the possibility of extending the King doctrine to all arrestees, whatever the offense may be.   The article  is mostly a cautionary tale; a warning to policymakers not to eagerly adopt this seemingly inevitable next step.  She cites four concerns about such an extension: (1) it has technically not been authorized by the King decision; (2) it would give police officers too much discretion in deciding who became part of the growing DNA database; (3) expungement is not a practical option for those whose DNA is collected; and (4) the crime-control benefits of such an extension would be less than most people believe.

Of all of these concerns, only the second one actually discusses the negative consequences of DNA testing for misdemeanor arrestees.  And Professor Joh makes a compelling argument here, pointing out that police discretion to arrest for misdemeanors is far greater than their discretion to arrest for felonies.  Because of a variety of factors, the police already exercise this discretion to arrest in a way that results in the detention of a disproportionately large number of racial minorities and poor people.   As Professor Joh points out:

What all of this means is that one’s chances of being included in DNA database based on an arrest for a minor crime may depend on seemingly arbitrary factors like one’s neighborhood, race, attitude, or just plain bad luck. And given the existing disproportionate representation of minorities in the criminal justice system, that discretion would likely translate into databases that are even more racially imbalanced than they are now.

The title of Professor Joh’s article asks an important question: Should Arrestee DNA Databases Extend to Misdemeanors?  A policymaker trying to reach an informed and thoughtful answer to that question would have to take into consideration all of the potential crime-control benefits of such a step (something which Professor Joh’s article briefly discusses but does not delve into detail about).  But the policymaker would also have to come to terms with the undeniable truth that Professor Joh presents in this concise paper–that such a step would exacerbate the already troubling disparities in our criminal justice system.

Yesterday the Supreme Court decided the Heien case, and as predicted, the Justices ruled in favor of the government in a very limited holding.  Stating that “[t]o be reasonable is not to be perfect,” the Court allowed for a police officer’s reasonable suspicion to be based on a  reasonable mistake of law, but also pointed out that very few mistakes of law by a police officer will ever be deemed reasonable.  The only real surprise here was the lopsided vote: it was an 8-1 opinion, with only Justice Sotomayor in dissent.  Here is the key passage from the majority opinion:

Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved.  Cf. Whren v. United States, 517 U. S. 806, 813 (1996). And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.

Indeed, the only two examples that the Court gives of a possible reasonable mistake of law are (1) when an officer relies on a law that is later overturned (as in the DeFillipo case that the Court cites), or (2) when an officer “suddenly confronts a situation in the field as to which the application of a statute is unclear”–such as seeing a Segway “whiz by” in a park and deciding whether the operator is violating a law against “vehicles in the park.”  The fact that the Court chose such an ancient and intractable legal puzzle as the vehicles in the park dilemma indicates that this doctrine will be limited to  truly ambiguous applications of the law.

Justice Kagan’s concurrence emphasizes this limitation, pointing out that the objective nature of the analysis means that “the government cannot defend an officer’s mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law. And it means that, contrary to the dissenting opinion in the court below, an officer’s reliance on ‘an incorrect memo or training program from the police department’ makes no difference to the analysis.”

In her dissent, Justice Sotomayor echoes many of the concerns of the amici briefs in the case: “[o]ne is left to wonder…why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question.”  But in doing so she mis-states (perhaps intentionally) the majority’s decision. Heien does not allow police to seize a suspect anytime the law “may be susceptible to an interpretive question”–it will only apply when the law is so ambiguous that a well-informed police officer can make a reasonable mistake as to whether it prohibits certain behavior.

In the end, this case will (hopefully) not fundamentally change the way police activity is conducted, or the way it is reviewed by the courts.  No doubt prosecutors will try to stretch Heien in the coming years, attempting to fit all sorts of ignorant or sloppy police activity into its holding.  Given the language in the Heien decision, the lower courts should have no problem swatting those claims aside and keeping the Heien doctrine strictly limited to truly reasonable mistakes of law.

In one of the first circuit court cases to consider the search of a cell phone incident to arrest in the post-Riley world, the Ninth Circuit firmly rejected all of the government’s attempts to make an end-run around the Riley case.  In United States v. Camou, a police officer arrested Chad Camou and  his girlfriend Ashley Lundy for smuggling an illegal immigrant.  During her interrogation, Lundy told the officers that they had received instructions on where to pick up the immigrant from a person named “Mother Theresa.”   In the meantime, Camou’s cell phone (which had been seized by the police) rang several times, and Lundy identified the number as belonging to Mother Theresa.   The officer looked  through the call log of the telephone, and found a number of other calls from Mother Theresa.  The officer then examined the photos on the phone and found–you guessed it–child pornography.  Camou was duly charged with possession of child pornography.  (The original immigration smuggling charges were dropped).

The government had three plausible arguments to get around the Riley decision.  First, the government argued that the because the defendants were arrested in their vehicle, the automobile exception should apply instead of the search incident to arrest exception.  Under Gant, the police are allowed to search any container that is found in a car as long as there is reason to believe that the container contains evidence or contraband–and given the facts of the case, the police probably had reason to believe there was information about the crime of arrest on the phone.  The Ninth Circuit rejected this argument, extending the Riley rationale to the automobile exception:

Given the Court’s extensive analysis of cell phones as “containers” and cell phone searches in the vehicle context, we find no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception. Just as “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” so too do cell phones differ from any other object officers might find in a vehicle. Id. at 2489. Today’s cell phones are unlike any of the container examples the Supreme Court has provided in the vehicle context. Whereas luggage, boxes, bags, clothing, lunch buckets, orange crates, wrapped packages, glove compartments, and locked trunks are capable of physically “holding another object,” see Belton, 453 U.S. at 460 n.4, “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Riley, 134 S. Ct. at 2488-89 . In fact, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Id. at 2491 (emphasis in original).

The government then argued that the exigency exception should apply–a possibility that was explicitly kept open in the Riley decision.  But the Ninth Circuit rejected this as well.  The court quoted the Supreme Court’s language in Riley:
“When “the police are truly confronted with a ‘now or never’ situation—for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to search the phone immediately.”    But the Ninth Circuit held that the government did not meet its burden of proving any “special circumstances” in this case: “Here, the search of Camou’s cell phone occurred one hour and twenty minutes after his arrest. This was not an “imminent” “now or never situation” such that the exigency exception would apply. Moreover, the record does not indicate that Agent Walla believed the call logs on Camou’s cell phone were volatile and that a search of Camou’s phone was necessary to prevent the loss of recent call data.” 

Finally, the government argued that the good faith exception should apply, since the police officer conducted the search before Riley had been decided, and thus under Herring v. United States, the police officer acted in good faith.   The Ninth Circuit pointed out that even before Riley had been decided, the law stated that a search incident to a lawful arrest had to occur “contemporaneously” with the arrest, and that this search occurred eighty minutes after the arrest.  The government had responded to this argument by claiming that Herring held that a mistake by the police officer would not invalidate the search unless the officer acted “reckless or deliberate” officer conduct.  But just as the Ninth Circuit interpreted Riley broadly, it interpreted Herring narrowly:

The Supreme Court has never applied the good faith exception to excuse an officer who was negligent himself, and whose negligence directly led to the violation of the defendant’s constitutional rights.3 Here, the government fails to assert that Agent Walla relied on anyone or anything in conducting his search of Camou’s cell phone, let alone that any reliance was reasonable. The government instead only asserts that by searching the phone, Agent Walla was not acting “recklessly[,] or deliberately” misbehaving.  In this case, the good faith exception cannot apply.

Finally, the Ninth Circuit pointed out that even if one of these exceptions had applied, the government would still have lost the case because the police search of the phone was not supported by probable cause.  Although the police had probable case to believe that the phone call logs contained evidence of the immigration crime (and thus the police could presumably have obtained a warrant to look at the call logs), the search they conducted was overbroad because the police went beyond the phone log and searched through Camou’s photos and videos as well.  Like the reasoning in the rest of the opinion, this part of the holding demonstrates that the Ninth Circuit is embracing the spirit of the Riley decision by treating smart phone searches as qualitatively different from any other type of search.

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.