Category Archives: fourth amendment

No trespassing

I'm talking to you, officer.

I’m talking to you, officer.

[Update: See update at end of the post.]

Have you given strangers permission to come to the front steps of your house? Have you given a stranger permission to cross onto your property line and walk to the front door of your house? Certainly, none of us have given this explicit permission – we don’t post a sign at the edges of our property that “all are welcome”, but we have implicitly given some people permission to enter without our prior approval: the mailman, the neighbor borrowing sugar, the girls selling cookies, the cops with drug-sniffing dogs.

Wait, what? That’s precisely what happened in Florida v. Jardines [PDF], decided today by the United States Supreme Court and the State of Florida, along with 4 Supreme Court justices, argued that it was quite all right for cops to bring their drug sniffing dogs onto private property without a warrant in an attempt to sniff out illicit activity. Luckily for us and our individual rights, 5 members of the Court disagreed.

The case itself is an easy one to resolve, as both Justice Scalia’s majority opinion and Justice Kagan’s concurring opinion state: there is a physical intrusion onto your property by government agents:

The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

The rest of the opinion is a good recap of some basic principles: what is a curtilage, was the intrusion unlicensed and that this “physical intrusion” test of Fourth Amendment jurisprudence is in addition to the standard “reasonable expectation of privacy” test of the Fourth Amendment.

And this is where, if this were a TV show, you’d hear the oft-used scratched record sound effect meant to imply halting.

Your rights are only worth the probable cause used to extinguish them

This, folks, is what happens when you don’t pay attention to the erosion of our collective rights. This is what happens when you steadfastly maintain an “us vs. them” attitude. This:

Maryland Deputy Attorney General WINFREE: But what I — the cornerstone of our argument is that when an individual is taken into custody, an individual is arrested on a probable cause, on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him on — based on probable cause surrenders a substantial amount of liberty and privacy.

If your eyes haven’t popped out of your head yet, you should check with an ophthalmologist. They may be stuck in place. The Government – Your Government – has brazenly started taking the tact in open court that simply by virtue of being arrested, an individual surrenders a “substantial amount” of liberty and privacy. I’m pretty certain she didn’t mean this in the literal sense of arrest and being locked up (which also has some requirements of balancing interests). This is in the sense that once you’re arrested, your rights are limited and you, by virtue of causing the police to arrest you, have forfeited privacy expectations and Constitutional rights.

Her argument, in that brief moment before Justice Kagan challenged her on it, was that by virtue of an arrest, an individual has voluntarily sacrificed his Fourth Amendment rights as is the issue in the case she was arguing.

Do you know what it takes to arrest someone? Next to nothing. You know the “ham sandwich” joke? Well probable cause is what they replaced grand juries with. And probable cause is whatever the hell they want it to be. It doesn’t have to be probable cause of the particular officer making an arrest, either and it can be based on completely innocuous every day actions of regular people.

I don’t normally say this, but thanks Justice Kagan:

JUSTICE KAGAN: But, Ms. Winfree, that can’t be quite right, can it? I mean, such a person, assume   you’ve been arrested for something, the State doesn’t have the right to go search your house for evidence of unrelated crimes; isn’t — isn’t that correct?

MS. WINFREE: That’s correct, Justice Kagan.

JUSTICE KAGAN: It doesn’t have the right to search your car for evidence of unrelated crimes.

MS. WINFREE: That’s correct.

JUSTICE KAGAN: Just because you’ve been arrested doesn’t mean that you lose the privacy   expectations and things you have that aren’t related to the offense that you’ve been arrested for.

Of course, what’s lost is that this State (Maryland) and the 49 other states that joined Maryland via an amicus brief already routinely take the position that once you’re arrested, you lose rights. (CT passed just such a bill last year. All my posts on DNA are here.)

In the case being argued, Maryland v. King, the Court is tasked with applying the Fourth Amendment to the 21st Century (is your computer’s recycle bin like your home’s trash can?). When someone is arrested for Crime A, can they take the person’s DNA and then enter it into a cold-case database to see if it matches any old crime. In King’s case, it did. He was then charged with and convicted of Crime B. At the time they took the DNA, they had absolutely zero suspicion that he was involved. It’s a routine procedure done with all arrestees.

These laws permit the collection of DNA from anyone who’s been arrested because they got into a drunken bar fight or because their boyfriend called the cops and said they were threatened or because a vindictive neighbor doesn’t like your dog pooping on his lawn or because you’re driving while black. And you have to give up your DNA, because the Man said so. And with that DNA, you give up your genome, your individual traits and characteristics.

You can read the oral argument transcript here and reports from SCOTUSBlog, the ABA Journal, the WaPo and the NYTimes to get a sense of how the court will rule. There are some Scalia zingers in there too. But I wanted to highlight this separate quote, for fear that it will get lost in the greater discussion.

And I want to keep asking that question: why aren’t you scared yet? Why don’t you care enough?

Justice Alito called this the “most important criminal procedure case this court has heard in decades”. He’s absolutely right. It’s time for the court to decide what’s more important: helping cops catch crooks or the individual liberties and freedoms of every citizen of this country. The answer’s clear to me. Is it to you?

13 realities of the Fourth Amendment

In what is quite possibly the most (only?) useful post ever written in the legal blogosphere, John Wesley Hall, author of a massive treatise of 4th Amendment Law, gives us a preview of the next edition with 13 “realities” of the 4th Amendment obvious to him after reading a shit-ton (that’s a legal term) of cases. Don’t be fooled. This is essentially a primer for 4th Amendment law. He’s giving away the outline here. Read it and memorize it and then come to the same conclusion that he does:

13. If you find you don’t completely understand the Fourth Amendment, you’re not alone because hardly anybody does any more. To me, much of the Fourth Amendment has turned into a Rorschach test that means different things to different people, all depending on how they want it to come out. How did just 54 words generate untolled [sic] millions of words in cases, treatises, and law review articles? The U.S. Supreme Court alone has decided about 250 Fourth Amendment cases.

I could’ve told you that, but it would have involved less information and more internet jokes. So, you’re welcome.


Cellphones and the 4th Amendment: REP

As we move faster and deeper into the technology age, the law struggles to keep up with ever changing methods of communication and constant availability of modern day consumers. One thing the law has had to deal with over the last 10 years is just how “private” are cellphones and the data that can get gotten from them?

It’s one thing to say that the data on a phone is private and expected to be so – although if you don’t password protect you’re phone you’re an idiot – but what about the signal of the cellphone itself that lets you get reception and connect to the internet?

Law enforcement and cops have been using cell tower data to pinpoint the location of a cell phone (and by extension its user) for a few years now, but this was mostly done post-hoc, to prove that a particular individual was at a particular location at the time of the crime. I’m also fairly certain that prosecutors and cops have been getting warrants to track cell phones in order to locate an individual they are chasing.

But can all of this be done without a warrant? Is there a reasonable expectation of privacy in the location signal of your phone? Is this something that society today is prepared to accept? That one doesn’t generally expect someone to know where you are based on the contact your cellphone has (covertly and unbeknownst to you) with a cell phone tower and the cell phone company?

That’s what the 6th Circuit just said in a decision [PDF] released two days ago: that there is no reasonable expectation of privacy in that information and thus, no need to get a warrant in order to conduct surveillance. Not only does the Court seem to place much faith in the “well, he was a criminal, right, so screw his rights” doctrine, but also makes several false analogies to other, more traditional, no expectation of privacy scenarios:

Otherwise dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent number of cell phone technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

As that Cato post appropriately points out, reasonable expectation of privacy doesn’t mean what the 6th Circuit claims it means:

But it does not follow at all. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” the Supreme Court explained in the seminal case of Katz v. United States, “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Any member of the public can buy a dog and follow a scent. Any member of the public can view and copy down a license plate number. Any member of the public can view the external paint job of a car. But any member of the public cannot just track the GPS signal of a random cell phone—and if they could, most of us would be extremely wary about carrying cell phones. Unlike all these other examples, GPS tracking as employed here depends crucially on the ability of police to invoke state authority—a seemingly salient distinction the court fails to take any note of.

The decision also makes no mention of US v. Jones, issued by SCOTUS earlier this year, albeit that is a slightly different scenario. More telling, however, is that there is no mention of Kyllo. Further, as Orin Kerr points out, the technical mumbo-jumbo utilized by the Court is ridiculously hazy.

Decisions like these, in light of the fact that it was recently revealed that cell phone companies dealt with 1.3 MILLION requests for cell tower information from LEOs last year and the FBI’s reluctance to turn over new memos giving guidance on how to deal with electronic surveillance in light of Jones, make it an increasingly dangerous time for our privacy in this digital age.

Unless, of course, you’re one of those people who constantly tell the world where they are on Foursquare, Twitter and Facebook. In that case, you get what you deserve.

King of my castle

Much ink has been spilled over yesterday’s SCOTUS decision in Kentucky v. King, holding that lawful police conduct that may or may not give rise to exigent circumstances does not fall within the scope of the exclusionary rule, so I’m not going to repeat what’s been said. Instead, I make the two obvious pop culture references:

You can thank me later.

If you didn’t resist, you must have wanted it

The meaning and parameters of consent in sexual assault has evolved over the yeas, from the common law requirement of resistance “to the utmost” to prove lack of consent, to a shift in focus to the individual will of the victim. Consent, as a legal concept, is not limited to sexual assault law. It rears its ugly head in another critically important area: Fourth Amendment jurisprudence.

While consent in rape law has evolved to adopt a more subjective view, consent in 4th amendment law has devolved, going backward to a more objective view. A new paper (pdf) (SSRN) examines this phenomenon and argues that courts should look to sexual assault consent in determining whether an individual “consented” in the 4th amendment context:

As this article shows, there are many parallels to be drawn between rape and Fourth Amendment consent law. Although both claim to protect the dignity of choice, like rape law, the Fourth Amendment fails to ask if a subject wishes to be seized or touched, focusing instead on the amount of force and coercion used by the police. Also like rape law, the Fourth Amendment fails to recognize that subtle forms of coercion are incompatible with true consent. Both Fourth Amendment and rape law blame subjects who submit to subtle coercion, telling them they had a choice. Just as rape victims were told they asked for it by wearing short dresses and not screaming for help, individuals are told they asked for it by extending their arms to be searched.

It is a fascinating subject and something that I hadn’t given much thought to prior to reading this paper. Consider that in almost all 4th amendment cases, whether a defendant consented is usually decided in light of the force used by the police in conducting the search: if a squad of police cars surrounds the defendant, with guns drawn and then asks him for “consent”, a court is more likely to conclude that a reasonable person did not feel free to decline consent. Whereas if it is a single officer, who pulls over a car and then orders the defendant out and then asks for “consent”, a court is more likely to conclude that a reasonable person would have felt free to decline the search. 4th Amendment law turns a blind eye to the reality that is acknowledged in the sex assault area that the will to refuse is often overborne by a subtle show of force or authority.

Objects in mirror are as pretextual as they appear

turn left and go directly to jail

Over 4 years ago, a police officer received an anonymous tip that Gregory Cyrus was driving home drunk. The officer followed Mr. Cyrus, but didn’t observe him driving erratically, which is a feat in of itself given the bullshit usually spewed to justify a stop. Armed with a solid anonymous tip, Mr. Police Officer was at a loss. How was he to stop and arrest this man when he wouldn’t oblige and cross a single yellow line? And then it hit him. He saw Mr. Cyrus driving with what looked like a crucifix hanging from his rear view mirror. “Aha!”, he thought to himself, “I’ve got you now, you-person-who-must-be-drunk-because-someone-told-me-so-and-not-because-I-observed-anything!”

Relying on C.G.S. 14-99(f), the trooper pulled Mr. Cyrus over and arrested him for drunken driving. “Wait, just one Constitutional second!”, said Mr. Cyrus (through his lawyers). “You didn’t have reasonable and articuble artilicuable articulable suspicion to stop me, pursuant to the remnants of Terry v. Ohio!”

A learned trial judge agreed and a former supreme court chief justice reaffirmed that decision. But in the fair not-so-Constitution-al-State (okay, I’ll stop with the hyphenation), a win for the rights of each individual is rarely safe, as there looms the spectre of an almost automatic reversal from the law and order state Supreme Court.

Not today. Not this time. In a split 4-3 decision (more on that in a bit), the highest court of the State upheld the trial and appellate courts, based essentially on one simple proposition: that a stop cannot be based on a hypothetical:

The trial court recognized that there must be more than a hypothetical possibility that the driver’s vision would be obstructed or that he would be distracted  to constitute a violation of § 14-99f (c). [Trooper] Mattioli had to have reasonably believed that the statute was being violated or was about to be violated,  and he must have been able to articulate this reasonable belief to the court. It would have been improper to conclude that Mattioli reasonably suspected  that the chain and cross hanging from the defendant’s rearview mirror was in violation of § 14-99f (c) without regard to whether there was a factual basis  for Mattioli to conclude that the defendant’s field of vision appeared to be obstructed or that the defendant appeared to be distracted by the hanging  object.