All posts for the month April, 2015

Ohio’s Supreme Court is beginning to get a reputation for aggressively protecting Fourth Amendment rights in the digital age.  Six years ago in State v. Smith it held that police officers may not search a cell phone incident to an arrest, foreshadowing the United States Supreme Court’s Riley decision by five years.  Today the Court released a decision which set out strict requirements for law enforcement officials who are seeking search warrants for computers.  The Court held that the search warrant in question lacked particularity because it essentially authorized a limitless search of the defendant’s computer.

egged cartext








In the case, State v. Castagnola, the defendant was initially being prosecuted for selling alcohol to a minor.  He then took the ill-advised step of egging the prosecutor’s car to show his displeasure with the case.  He then took an even less-advised step and bragged about the egging to a friend, first by text and then in person.  The “friend” ended up being a police informer, who was wearing a wire at the time of the defendant’s verbal confession.  The police then obtained a search warrant and searched the defendant’s home (including his computer) for evidence of the egging incident.  Instead, they found evidence of child pornography.  The defendant was ultimately convicted of the child pornography charge.

The issue at the Ohio Supreme Court was two-fold:

First, the defendant told the police informant that he found the prosecutor’s address by tracing him through a parking ticket the prosecutor had received a few years earlier.  In the detective’s affidavit seeking a warrant, the detective erroneously said that the defendant had mentioned that he found the prosecutor’s address after conducting an “online” search–thus supporting the detective’s request to search the defendant’s computer in order to find evidence of the search.  But the defendant in fact never mentioned how he searched for the prosecutor.  The detective had inferred that the search occurred online, but the Court held that such an inference was not strong enough to rise to the level of probable cause that the defendant had used a computer, noting that “[a]lthough we are in the computer age, records of court activity still exist in paper form and are available to the public in clerk of courts’ offices around the state.”  In other words, even though the defendant had admitted that he had searched through court records for the prosecutor’s address, the likelihood that he did so using a computer does not suffice to establish probable cause.

Second, the warrant’s language, which copied the language from the detective’s affidavit, authorized the police to search:

Records and documents either stored on computers, ledgers, or any other electronic recording device to include hard drives and external portable hard drives, cell phones, printers, storage devices of any kind, printed out copies of text messages or emails, cameras, video recorders or any photo imaging devices and their storage media to include tapes, compact discs, or flash drives.

The Ohio Supreme Court noted that this language violated the Fourth Amendment’s particularity requirement because it did not include any “limitation on what records or documents” were allowed to be searched.  Event though the warrant later specified that any evidence that was recovered was to be used as evidence in a retaliation and criminal damaging case, the warrant was still overly broad.  Thus, the evidence should have been excluded–which almost certainly means that the child pornography case will now be dismissed.

The Court’s first conclusion seems a bit strained–is it really feasible to think that the defendant actually went to the county clerk’s office in person to look up the prosecutor’s old parking ticket?  An inference that the defendant conducted an online rather than a physical search seems not only reasonable (and thus sufficient to support probable cause) but almost certain.

But the Court’s second conclusion is surely correct–courts are already struggling with how to draft warrants in order to properly limit searches of computers, and a broad warrant that permits the police to search through every digital file on every digital device does seem overbroad.  Indeed, the law enforcement technician gave a somewhat weak explanation of why she was looking at picture files when she was allegedly looking for evidence of a search for the prosecutor’s court files.  (She explained that she “went to the images [folder] to find images associated with court websites.”)  On this point, at least, the Ohio Supreme Court’s message is clear: narrow your computer search (and your language in the search warrant) to items that are related to the crime you are investigating.






This week the Court decided Rodriguez v. United States, and held in a 6-3 decision that the police cannot prolong a traffic stop even for a few minutes in order to conduct a drug dog sniff.  More broadly, the Court held that the duration of a traffic stop, like the duration of a Terry stop, must be “reasonable,” and thus may not be lengthened by police conduct which was beyond the “mission” of the traffic stop.

Drug Dog Car Sniff

In my preview of this case, I predicted that the Court would be forced to define what is “reasonable” by essentially legislating from the bench and listing precisely the actions that officers can and cannot do during a routine traffic stop.   I wrote that the Court would define “reasonableness” as “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.”

My prediction was mostly correct, but I give the Rodriguez Court credit for at least trying to create a principled distinction between what is “reasonable” during a traffic stop and what is not.   Specifically, the Court said that the police officer may take a reasonable amount of time to “address the traffic violation that warranted the stop;” to “attend to related safety concerns;” and to conduct “ordinary inquiries incident to [the traffic] stop.”  This last category is included to allow police to “ensure that vehicles on the road are operated safely and responsibly.”  In contrast, the police officer is not allowed to take any extra time to “detect evidence of ordinary criminal wrongdoing.”  The Court used these guidelines to conclude that it is impermissible to take extra time during a traffic stop to use a drug dog.

Unfortunately, the Court’s attempt at making a principled distinction falls short.  The Court helpfully provides a list of what falls under the “ordinary inquiries” category: checking the driver’s license, inspecting the automobile’s registration and proof of insurance, and determining whether there are outstanding warrants against the driver.  But as Justice Thomas points out in his dissent, this last action–checking for warrants–does not really ensure that the vehicle is operated safely and responsibly–it is, plain and simple, an investigation into whether the suspect has been involved in criminal activity.  As such, it seems indistinguishable from the drug dog sniff, at least under the paradigm provided by the Court.

Interestingly, Rodriguez appears to limit another common activity during a traffic stop–questioning the suspect in order to learn if the suspect is engaged in criminal activity and/or requesting to search the car.  The Court does note that the police may “conduct certain unrelated checks during an otherwise lawful traffic stop,” but it states that “[s]he may not do so in a way that prolongs the stop, absent . . . reasonable suspicion.”  Thus, Rodriguez seems to prohibit any investigatory questioning unrelated to the reason behind the stop which prolongs the length of the stop.  It will be interesting to see how lower courts interpret this aspect of the case–does this mean that if the police officer has completed the warrant check and the citation, she is not allowed to ask any further investigatory questions of the driver unless they are somehow related to the offense?  Or maybe lower courts will interpret Rodriguez even more strictly.  As Professor Rory Little notes at SCOTUSblog: “the Court says only that an officer ‘may conduct certain unrelated checks’ during a stop, without discussing what limitations ‘certain’ may imply.  The majority also says that ‘on-scene investigation into other crimes … detours from that mission’ of traffic safety.”  Lower courts will have to interpret this language to determine which questions are or are not permitted to lengthen a traffic stop.

Professor Little also discusses another “loose end” in the Rodriguez decision: he sees the case, when considered alongside the rejection of the front-door dog-sniff in Jardines, as evidence that the Court is backing away from its 1983 decision United States v. Place which stated that drug dog sniffs are not a Fourth Amendment search.  (This would also mean, presumably, that the Court is backing away from its affirmation of Place in the 2005 decision of  Illinois v. Caballes).  He calls Place “one of the more extreme extensions of the ‘reasonable expectation of privacy’ test,” and argues that its rationale is now suspect in light of Jardines, Riley v. California (which prohibited searching cell phones incident to a lawful arrest), and Kyllo v. United States (which prohibited warrantless thermal imaging of a home).   These cases, Little notes, are evidence that the Court has “recognized that privacy has some scope beyond ‘expectations’ that the real world may compel us to abandon,” and that the Court is coming to the realization that drug dogs are like any other investigative tool and should be treated as such.

I am not so sure about this conclusion.  The Court’s rationale that drug dog sniffs do not constitute a Fourth Amendment search is based on a very specific doctrine–the binary search doctrine–and nothing in Kyllo, Jardines, or Riley affects that doctrine in any way.  The binary search doctrine states that government surveillance is not a Fourth Amendment search if it is only able to reveal the absence or presence of illegal activity.  The doctrine is based on the theory (first discussed in Rakas v. Illinois) that the Fourth Amendment only protects legitimate expectations of privacy.  In contrast, the Court’s recent limitations on the use of drug dogs have been based on other doctrines.  In Jardines, the limitation was based on the new  “trespass” Fourth Amendment test found in Jones; and in Rodriguez, the limitation was based on the doctrine that although a drug dog sniff is not a Fourth Amendment search, it is a Fourth Amendment seizure.  All that Rodriguez stands for is that the seizure aspect of the drug dog sniff needs to be justified by reasonable suspicion, and that any unreasonable delay that prolongs a seizure in order to conduct a drug dog sniff is unconstitutional–which is exactly what the Court held in Place thirty-two years ago.

NOTE:  Other commentators have also reacted to this case:  Orin Kerr has stated that he believes the case is correctly decided and that the Court was wise to adopt the “safety-based rationale” for traffic stops, while Steven Schwinn discussed the case on the Constitutional Law Prof Blog.


In the recent Supreme Court case of Hein v. North Carolina, the Supreme Court held that a police officer’s reasonable mistake of law can still validly provide reasonable suspicion for a traffic stop.  Although the case caused some concern that police officers would now be able to ignore (or at least creatively interpret) the law when making a traffic stop and then later argue that they made a “reasonable mistake,” I argued that the holding would end up having a very limited application, since a police officer’s mistake of law would almost never be deemed “reasonable” by a reviewing court.

stop sign changing-lanes

Recently the Hein decision has been applied by two lower courts, one of which found that the mistake by the police officer was reasonable under Hein, and one of which did not.  In People v. Guthrie, the defendant ran a stop sign at the edge of a supermarket parking lot in the Village of Newark in New York.  The police officer pulled the defendant over, noticed that he was intoxicated, and charged him with driving while under the influence.  Upon further investigation, the parties learned that the stop sign had not been officially registered in the Newark Village Code, and therefore the sign was not legally authorized under the state vehicle and traffic law.  Thus, the defendant had no legal duty to stop at the stop sign, and the police officer had no legal right to pull him over after he ran through the stop sign.  The trial court therefore dismissed the evidence, and the appellate court agreed.

On appeal, the New York Court of Appeals reversed, holding that under Hein and the applicable New York state law, the officer’s mistake of law was reasonable, and therefore the stop was valid.  The Guthrie Court did not say much about how to determine whether a mistake of law is reasonable or unreasonable; it spent most of its time explaining why the Hein rule was consistent with New York state law and why it was good policy.  Essentially The Guthrie Court adopted the Hein Court’s theory that there should be no distinction between a police officer’s mistake of law or mistake of fact–as long as the mistake is reasonable, the police officer’s stop is still justified.  In discussing the facts of the Guthrie case, the Court provided this rather unhelpful explanation:

[W]e are not saying that it would have been objectively reasonable for the arresting officer to have claimed ignorance of the requirement in Vehicle and Traffic Law § 1100 (b) that a stop sign in a parking lot be registered to be valid. We are saying that the stop was nonetheless constitutionally justified because the officer was not chargeable with knowing each and every stop sign that was registered under the Newark Village Code.

This explanation seems a bit circular: it doesn’t seem to matter whether the officer is expected to know about the requirement that a stop sign be registered if the officer is not required to know which stop signs are in fact registered.  On the other hand, it does seem reasonable that a police officer would believe it was legal to pull someone over for running a stop sign.  The only other options would be to require the police to memorize all of the stop signs in the precinct which are registered, or to require the officer to always look up the status of a stop sign after seeing a suspect run through it.  Neither of these options seems very feasible.

Meanwhile, the Fifth Circuit was deciding the case of United States v. Alvarado-Zarza, in which the police officer pulled over the defendant for failing to signal 100 feet in advance of making a turn.  The stop lead to a consent search, and the search led to a discovery of cocaine in the car.  In a suppression hearing, the defendant pointed out that he was only making a lane change, not making a turn.  The trail court denied the suppression motion, holding that the defendant made the lane change and then made a turn from the new lane, so that the lane change and subsequent turn were equivalent to “one prolonged turn.”  The Fifth Circuit disagreed, holding not only that the turn signal law did not apply to lane changes, but also that applying the law to lane changes was unreasonable:

In Texas, “[a]n operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.” Section 545.104(b) is unambiguous.  Its 100-foot requirement only applies to turns; lane changes are not mentioned.  Further, the statute elsewhere refers to turns and lane changes separately, thereby setting out a distinction between the two.  This distinction is further indicated by the Texas Driver’s Handbook, which defines a lane change as a “lateral maneuver moving the vehicle from one lane to another” and a turn as a “vehicle maneuver to change direction to the left or right.”  See  Mahaffey v. State, 316 S.W. 3d 633, 641 (Tex Crim App. 2010).  The former definition confirms that a lane change, as its name implies, occurs when moving from one lane to another.  A “turn,” on the other hand, involves a change to a vehicle’s direction.  The terms “turn” and “lane change,” therefore, signify distinct actions.   This, Section 545.104(b), by its plain terms, does not apply to lane changes.  

Second, seven months prior to Alvarado-Zarza’s stop, the Texas Court of Criminal Appeals in Mahaffey addressed the distinction between a turn and a lane change.  In that case, a policeman mistakenly concluded that a driver was “turning” by moving out of a lane that was ending.  Although the court did not discuss Section 545.104(b)’s 100-foot requirement, it drew a clear distinction between a turn and other movements, including a lane change.   The court deemed this distinction “plain and unambiguous.”  We interpret Mahaffey to be a rejection of Officer Barrientos’ view.  

Because the caselaw far predates the stop in this case, and because the statute facially gives no support to Officer Barrientos’ interpretation of the 100-foot requirement, we conclude that his mistake of law was not objectively reasonable.

Since the Fifth Circuit was overturning a lower court ruling, it was not merely holding that the police officer’s mistake of law was unreasonable, but also that the district court’s interpretation was unreasonable.  In other words, even when a police officer’s understanding of the law has been confirmed by a trial court judge, it could still be unreasonable.

What lessons can we learn from these two early applications of Hein?   Perhaps the most troubling issue from either of these cases is that the district court in Alvarado-Zarza was willing to construe the turn-signal law so broadly against the criminal defendant, even in the face of all of the arguments to the contrary.  But this is not really a critique of how Hein was applied, since the district court didn’t even think any mistake of law had been made.

In the end, both courts seem to have arrived at the correct result, though the Guthrie Court could have explained its rationale it a bit more detail.  It is hard to argue that the police officer in Guthrie violated the defendant’s rights by pulling him over after he drove through a stop sign–even an “unregistered” one–while the Alvarado-Zarza case refused to give the police office the benefit of the doubt in construing a traffic law, even when a trial court judge agreed with him.  Thus, it seems that so far the Hein decision has not provided police officers with an opportunity to ignore or aggressively interpret the law in their pursuit of traffic stops.

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.