For two years beginning in 2011, Ross William Ulbricht (using the pseudonym Dread Pirate Roberts) ran the Silk Road, an illicit web-based marketplace which specialized in selling illegal drugs.  The FBI eventually caught up with Ulbricht and  arrested him, and he is now on trial in the Southern District of New York.  Ulbricht’s defense attorneys have been arguing that the government violated Ulbricht’s Fourth Amendment rights during their investigation.  Specifically, the defense argues that the government hacked into a Silk Road server in Iceland, and from there obtained information which lead to various pen-trap orders and warrants to seize servers in the United States, as well as Ulbricht’s laptop and Facebook accounts.  But without the initial access to the Iceland server, the government would not have been able to proceed with its investigation.  In other words, the defense alleges, all of the evidence against Ulbricht is fruit of a poisonous tree. silk road      dread pirate roberts

The government responded with an affidavit from an FBI agent which held that the government investigators found the Iceland server through perfectly lawful means.  The affidavit states that “the Internet protocol (“IP”) address of the [Iceland] Server was ‘leaking’ from the site due to an apparent misconfiguration of the user login interface by the site administrator”–that is, a bug in the login interface led the police to the server’s IP address.  The government also argued in its brief that the search of the server was carried out by Icelandic authorities, so the Fourth Amendment does not apply, and that even if the Fourth Amendment did apply, a search of an American citizen’s property overseas need only be “reasonable”–which this was.   Thus, the trial court had a number of interesting factual and legal questions to resolve.

But alas, Ulbricht was unwilling to take the procedural step that is necessary to allow the court to resolve these questions.  Throughout the case, he has refused to acknowledge any personal privacy interest in the Iceland server–that is, he has denied any connection to the Iceland server (and to the Dread Pirate Roberts and the Silk Road).  Thus, he did not have standing to challenge the government’s conduct–whatever it might have been–when it gained access to the server.  In other words, the entire issue ended up being nothing more than a hi-tech version of a defendant’s catch-22–either deny ownership of the contraband and lose your right to challenge the search and/or seizure of the contraband, or admit to owning contraband which establishes your guilt.  The Supreme Court has held that the prosecution cannot use that admission against you (except for impeachment, which is a significant exception)–but especially in a high-profile case like this, a defendant may still not be willing to make that admission.

Ulbricht’s unwillingness to take this step is unfortunate (though understandable), since a full analysis of the case could have led to discussions of a number of important issues.  For example, if the government did indeed hack into the Silk Road login page (as alleged by the defendant), the government had no idea that the server was located outside the United States when it committed that hacking, and so the lower “international” standard should arguably not have applied to the governments actions.

And what type of “hacking” constitutes a search under the Fourth Amendment?  If the government was able to gain access to the server (as it claims) by merely entering random characters into the login until the IP address appeared, wouldn’t this still be a search?  Does a website’s server have to be protected by a certain level of security before its owner can claim a reasonable expectation of privacy in it?  One the one hand, the defendant could argue that a server is like a home or an office, so the government would be conducting a Fourth Amendment search simply by entering the server without permission, even if there was no security preventing them from doing so.  On the other hand, the government could argue that if any Internet user in the world can reach obtain the server’s IP address simply by playing around with the login page for a few minutes, then the owner of the server has revealed the location of the server to the world, and has relinquished all reasonable expectation of privacy in the server.  In other words, when does an individual have a reasonable expectation of privacy in his server?

Professor Orin Kerr has argued that the government might have violated the Computer Fraud and Abuse Act (“CFAA”) when it obtained the IP address of the Iceland server.  In an earlier prosecution under the CFAA, the Department of Justice argued that a defendant violated the CFAA when he obtained information from an AT&T website that “AT&T had not intended for the public to see” and which was “in a place where an ordinary computer user would likely not find it.”  Based on this standard, the FBI in the Silk Road case did violate the CFAA even if we accept the government’s version of how they obtained the IP address.  Professor Kerr acknowledges that the CFAA has an exception for lawful government investigations, but notes that there is still a tension between the government’s position in the Silk Road case and its position in the CFAA prosecution.

City of Los Angeles v. Patel involves a couple of technical but important issues about the scope of Fourth Amendment protections in the context of administrative searches.  Los Angeles has passed an ordinance which requires all hotel operators to keep records of all of their guests, and to make those records available for inspection by any member of the Los Angeles Police Department.  A hotel operator who fails to comply with this regulation faces up to six months in jail and a $1,000 fine.  The Patel family, who run a hotel in Los Angeles, brought a facial challenge to the statute under Section 1983, arguing that the statute violated the Fourth Amendment.

hotel records

In a split en banc decision, the Ninth Circuit held that the government was indeed conducting a Fourth Amendment search when it looked through the hotel’s records, and that the search should be analyzed as an “administrative search.”  The court then held that even under the low standards of administrative searches, the Los Angeles ordinance that authorized these searches was facially invalid because it did not provide the hotel operators an opportunity to challenge the reasonableness of the search request in court before penalties were assessed.

The Supreme Court granted cert on two questions:

First, whether it is ever appropriate to bring a facial challenge based on the Fourth Amendment to an ordinance or a statute; and

Second, whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry,

and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

First we should discuss what is not at stake in Patel: the Supreme Court will not (and should not) use this case to re-visit the third-party doctrine.  Some commentators have argued (here and here) that this might be a chance for the Court to reform dismantle or reform this much-maligned doctrine.  After all, most individuals would believe that the true victims of the invasion of privacy are the hotel guests, not the hotel itself.

As much as this argument has intuitive appeal, Patel appears to be a very weak case for a re-examination of the third-party doctrine.  Most of the modern critiques of the third-party doctrine have to do with the “passive” sort of sharing that is the inevitable consequence of using modern technology, such as disclosing the content of your e-mail to your internet service provider or your location to your cell phone company.   This  sort of “disclosure” to third parties could never have been imagined by the Court that authored Smith v. Maryland; thus, the argument goes, Smith should not apply to this type of third-party disclosure.  Other critiques of the third party doctrine revolve around the potential abuse of meta-data: using an algorithm to sift through all the phone numbers that a suspect calls over a multi-year period, or using a computer program to review the recipients of all of your e-mails.  Again, this kind of mass processing of meta-data is arguably beyond the scope of the humble pen register used in Smith.

But the third-party disclosure in Patel bears a much stronger resemblance to the phone numbers dialed in Smith than to the passive sharing of data that is inherent in the use of new technologies.  In fact, the disclosure in Patel is more like the sharing of bank records in Smith‘s less controversial precursor, Miller v. United StatesThere is no question that the guests in Patel knew they were giving information to a third party, and no particular reason why they would think that the government would be unable to access that information.

The two issues that the Patel case does involve are important enough, however.  The first question is purely procedural: whether a party can bring a facial challenge to a statute under the Fourth Amendment.  The dissenters in the Ninth Circuit argued that a statute should survive a facial challenge as long as “a court can find any circumstance in which it could constitutionally be applied.”  Thus, in order to succeed in their facial challenge, the Patels must prove that “all requests made under the ordinance must violate the Fourth Amendment.”  But, as the dissent pointed out, if the police demanded the records after having obtained a warrant, or pursuant to exigent circumstances, or pursuant to the community caretaking function, the demand  would obviously not violate the Fourth Amendment.  Thus, there is a strong preference for as-applied challenges, since they are the “basic building blocks of constitutional adjudication.”

The question asked by the Supreme Court goes beyond this argument, however, and asks whether there can ever be a Fourth Amendment facial challenge.  It would be logical for the Court to answer this question in the negative and prohibit all such facial challenges, since (as the Ninth Circuit dissent pointed out), courts would otherwise be called upon to give advisory opinions by trying to imagine all possible hypothetical cases in which a law might be applied.

If the Court does indeed prohibit facial challenges, it need not reach the second question, since the Patels did not allege any actual actions by the police which violated their Fourth Amendment rights.  If the Court allows these challenges, however, it should have no problem concluding that a demand for information pursuant to the ordinance constitutes a “search” under the Fourth Amendment.   The Patels (and other hotel operators) clearly have a reasonable expectation of privacy in this information; even the dissenters in the Ninth Circuit agreed that this was true.   The real issue in the second question is its second part, in which the Court must decide whether a demand for this information is a reasonable exercise of police power.  The Court’s answer should provide useful guidance regarding the underdeveloped administrative search doctrine, in two ways.

First, the purpose of these searches of hotel registries (according to the government) is to deter drug dealing and prostitution, which sounds much more like a law enforcement purpose than the regulatory purposes usually associated with administrative searches.  Administrative searches, like other special needs searches, are supposed to have a non-law enforcement purpose, although the Court has applied the administrative search doctrine to searches which have a distinctively crime-control flavor to them.   If the Court upholds this law, it will be taking another unwelcome step towards broadening the allowable purpose of administrative searches.

Second, if the Court does hold that this is a permissible purpose for administrative searches, it will need to decide what procedure is necessary to ensure that the search is “reasonable.”   The majority opinion in the Ninth Circuit stated that a demand to inspect should not be “made and enforced by the inspector in the field”–rather, the ordinance must allow for judicial review of the demand for records before any punishment can be imposed.  If not, the majority argued that there would be no way of ensuring that the demand is “sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.”   The Supreme Court will probably agree with the Ninth Circuit and require some kind of judicial review of these searches.  The sheer breadth of the authorization allowed by the ordinance seems to invite law enforcement abuses, and the narrowness of the administrative search doctrine’s purpose would be gutted even further if there is no judicial oversight of the police action.

But my prediction is that the Court will not even reach the second question.  Instead, it will deny the facial challenge and tell plaintiffs who wish to attack statutes on Fourth Amendment grounds that they must wait until the government takes some specific action against them before taking the police to court.


Like many users of child pornography, Michael Meister kept his photos and videos on his computer.  When his computer stopped working, he took it into a computer repair store, True North, to transfer the data from the inoperable hard drive to a new computer.  During the transfer process, the technician noticed the child pornography and contacted the police, who immediately seized the computer.  The police also looked  transferred the offending data–now inside True North’s system–onto two separate DVDs, and conducted two separate searches of that data.  Based on the information found on the hard drive, the police obtained a search warrant and then conducted another search of the laptop.

broken laptop

After Meister was arrested, he moved to suppress all the information found on his computer.  Unsurprisingly, the  District Court denied the motion, and the Eleventh Circuit agreed.  The court held that this was a simple application of the third party doctrine:  “The Fourth Amendment only applies to governmental action; ‘it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’  Once a private individual, acting of his own accord, conducts a search—even one that frustrates a defendant’s reasonable expectation of privacy—the Fourth Amendment does not forbid the government from replicating the search.”  Furthermore, even if the pre-warrant searches by the police were beyond the scope of the third party doctrine, the police would have found all of the contraband images eventually after they obtained their warrant, and so the searches fell under the inevitable discovery doctrine.

On one level, the Meister case is very straightforward.  But it also raises an interesting issue regarding the third party doctrine.  Today, more and more courts are criticizing the application of the third party doctrine to digital information, arguing that the doctrine should not apply to such data because in modern times so much data is entrusted–sometimes unknowingly, sometimes unavoidably–to third parties.  When computer data is stored in the cloud, or when e-mails in transit pass through remote servers on the way to their recipient, the owner of the data may not have consciously entrusted the data to a third party.  Thus, the argument goes, entrusting digital data to third parties is not at all like the “assumption of risk” that occurs when you give financial records to a bank or confide to a police informant.  This argument was first made well before the computer age, by the dissenting Justices in the much-maligned Smith v. Maryland who decried the application of the third-party doctrine to data about outgoing telephone numbers that were held by a telephone company:

Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy his confidential communications. By contrast here, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance.  It is idle to speak of “assuming” risks in contexts where, as a practical matter, individuals have no realistic alternative.

No doubt Meister’s actions fall under the category of being a “conscious choice”–he physically took his computer to a repair store and asked them to transfer the data.  But it is not hard to tweak the facts a bit and make the case more like the scenario described by the Smith v. Maryland dissenters.  What if Meister’s data had been corrupted, and so he sent his data electronically to a company to fix it?  Probably still a conscious choice.  What if he stored it in the cloud, and one of the data storage units in the cloud had become damaged, and a technician (without Meister’s knowledge) had to transfer the data from one storage unit to another?  Probably not a conscious choice.  Of course, under current Fourth Amendment law, the mere storing of the data in the cloud would trigger the third party doctrine.  But as the courts are revising the third party doctrine to exclude data that is automatically stored or transferred by third party actors, they will need to refine exactly when (if ever) repair and maintenance of that data might re-invoke the doctrine.

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.

In Heien v. North Carolina, the Supreme Court will decide whether reasonable suspicion to stop a vehicle can be based on a police officer’s reasonable mistake of law.  In this case, the sergeant observed the defendant driving with only one brake light and, believing that this violated North Carolina traffic laws, the sergeant pulled the car over.  The familiar pattern of a consent search and discovery of drugs followed in due course.  At trial the defendant argued that he was not in fact in violation of the traffic laws and therefore the stop was unconstitutional.  The lower court disagreed, holding that it was in fact illegal for the defendant to drive with only one brake light, but the intermediate appellate court reversed, engaging in a lengthy discussion of the North Carolina Traffic Code an ultimately concluding that a driver may legally operate a car with only one brake light.  Thus, the appellate court concluded that the stop was unconstitutional and therefore the drugs should be suppressed.

brake light North carolina law 2


The prosecution appealed to the North Carolina Supreme Court, but interestingly enough, it did not appeal the question of whether it is legal to drive with one brake light.  Instead, it argued that the stop was constitutional because the sergeant had a reasonable and good faith belief that the defendant was breaking the law.  In a 4-3 decision, the court agreed with the government’s position and upheld the search:

We are not persuaded that, because Sergeant Darisse was mistaken about the requirements of our motor vehicle laws, the traffic stop was necessarily unconstitutional.  After all, reasonable suspicion is a “commonsense, nontechnical conception [] . . . on which reasonable and prudent men, not legal technicians, act,” and the Court of Appeals analyzed our General Statutes at length before reaching itsconclusion that the officer’s interpretation of the relevant motor vehicle laws was erroneous.

Many of those who oppose the decision of the North Carolina Supreme Court (including the three justices who dissented) argue that allowing a reasonable mistake of law to form the basis of reasonable suspicion would represent a significant step in the perceived erosion of our Fourth Amendment rights.  For example, the dissent argued that the majority’s decision would apply:

when the officer acts based on the misreading of a less innocuous statute, or an incorrect memo or training program from the police department, or his or her previous law enforcement experience in a different state, or his or her belief in a nonexistent law.

But this is surely not the case.  A police officer’s “belief in a nonexistent law” could not possibly be considered reasonable.  And a mere “misreading” of a law is not reasonable—Sergeant Darisse’s mistake was only deemed reasonable because a trial court later agreed with it and the appellate court needed pages of sophisticated statutory analysis to determine that both the Sergeant and the trial court were wrong.  And if the police officer is basing his or her belief on “an incorrect memo or training program from the police department,” this does not make the mistake reasonable; it simply means that the unreasonable mistake was made by someone else in the police department.  (In Herring v. United States, the Supreme Court held that the exclusionary rule should not be applied in such a case because the officer acted in good faith, but that is a question of remedies, not rights.  For a good analysis of this “right/remedy” distinction in the Heien case, see this blog post by Professor Rory Little).

In reality, if the Court finds that a reasonable mistake of law can be the basis of an officer’s reasonable suspicion (which it probably will), the impact of this decision will be quite limited.  When is a court going to deem that a police officer’s mistake of law is reasonable?  Almost never.  Although the North Carolina Supreme Court rejected the defendant’s position that a police officer’s mistake of law is always unreasonable, it implied that a police officer’s mistake of law is almost always unreasonable.  Heien was a very unusual case, involving an ambiguous law and a rather unexpected interpretation of the law by a appellate court.  Most of the mistakes of law made by police officers (which are probably relatively rare in the first place) would not meet the reasonableness standard.

As many commentators have noted, reasonableness is becoming more and more significant in the Court’s Fourth Amendment analyses.  In the past two years alone, the Supreme Court has applied a reasonableness test to preclude detention of suspects not present at the site where a search warrant is executed; to prohibit a per se finding of exigency to take blood samples in drunk driving cases; to allow strip searches and for those arrested for minor crimes; and to allow DNA tests for those arrested of felonies.  In each of these cases, the Court avoided applying a bright-line test and instead balanced the competing interests of law enforcement and the privacy rights of suspects.  From the questions at oral argument, it appears the Justices will follow the same course in this case as well.


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.