Archive | Fourth Amendment

Thoughts on the Oral Argument in the Third Circuit Cell-Site Records Case

The Third Circuit held oral argument today in the case on the legal standard for historical cell-site information. I blogged about this important case here last week, and the oral argument audio from this morning has been posted here at the Third Circuit’s website. It was a very unusual and free-ranging argument that went for almost an hour-and-a-half, more than twice the scheduled 40 minutes. I wanted to blog my thoughts on the argument as I listened to it, as well as provide some of the key exchanges based on my best effort to transcribe them.

To set the scene, the presiding judge is Dolores Sloviter, a former Chief Judge of the Third Circuit, together with Judge Wallace Tashima, a visiting judge from the Ninth Circuit. Judge Jane Roth was also assigned to the panel, but she was absent from the hearing. Judge Sloviter is a Carter appointee; Judge Tashima a Clinton appointee; and Roth a Bush 41 appointee. The lawyer for the United States is Mark Eckenwiler, DOJ’s guru on electronic surveillance. Kevin Bankston from EFF and U of San Francisco lawprof Susan Freiwald argued as amici. This is a very strong group of advocates: All three work in this area regularly and know their way around these issues.

Here are my thoughts about the argument as I listen to it:

Around 5 minutes in, Judge Sloviter has lots of general questions about the Stored Communications Act. Her questions are somewhat surprising, as they concern sections of the statute that are not actually implicated by this case: Judge Sloviter is asking Eckenwiler to opine on why Congress drew a distinction between 2703(a) and 2703(b), while this case is about 2703(c). (I answer Judge Sloviter’s questions in my article A User’s Guide to the Stored Communications Act, if you’re [...]

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“Do You Mind If I Look?”

Here’s an interesting Fourth Amendment case in which video likely makes all the difference. A police officer stops a driver named Williams for a traffic violation. After checking out his driver’s license, the officer asks the driver for consent to search the car:

That solicitation continued over a period of about a minute and included approximately six requests. The officer asked that many times because appellant would not commit one way or the other. Indeed, captured on the video of the event was the officer informing appellant that he was being asked a “yes or no” question. Furthermore, the last request propounded to appellant consisted of Williams asking: “Do you mind if I look?” To it, appellant answered “yes,” according to the officer. Upon so replying, appellant was ordered to exit the car.

Held: The car cannot be searched, as this exchange cannot satisfy the standard of clear and convincing evidence Texas law requires to prove that consent to search was freely and voluntarily given. The court explains:

The officer’s desire to hear a “yes” or “no” answer continued until appellant said “yes” or “I guess” to the last solicitation. Because that utterance allegedly evinced to Williams “clear and unequivocal” consent, he ordered appellant to exit the vehicle. The problem comes, however, in the nature of the question to which appellant said “yes” or “I guess.”

The officer had not asked “may I search” but rather “would you mind if I look?” Answering “yes” to the latter meant that appellant did mind. Answering “I guess” also had and has like connotation; that is, saying “I guess” in response to being asked if one minds whether something happens can well indicate that he does.

State v. Meekins, — S.W.3d –, 2009 WL 4876866 (Tex.App.-Amarillo 2009). Thanks to JH for the tip. [...]

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The Misunderstood “Reasonable Expectation of Privacy” Test

Discussions about the Fourth Amendment sometimes include arguments that look like this:

The Fourth Amendment protects reasonable expectations of privacy. I expect privacy in _________, and I’m pretty reasonable, so I have a reasonable expectation of privacy in ________ and the Fourth Amendment should therefore protect it.

This reasoning is really common, but it’s also based on a misunderstanding. It is based on the erroneous belief that the test for whether government conduct violates a “legitimate” or “reasonable” expectation of privacy under the Fourth Amendment is whether a reasonable person would expect privacy in what the government learned. I can certainly understand why a lot of people think that way. After all, the test is “reasonable expectation of privacy,” which sure sounds like it should be based on whether a reasonable person would expect privacy. But it turns out that this isn’t how the Fourth Amendment works, and I wanted to explain why.

The key idea is that the phrase “reasonable expectation of privacy” is a constitutional term of art, much like other constitutional terms of art like “due process,” “free speech,” “strict scrutiny,” or “fundamental rights.” You normally can’t answer if something violates “due process” just by asking if there was a “process” that seemed “due,” much like you can’t answer if a regulation satisfies “strict scrutiny” by scrutinizing the regulation while being “strict.” In all of these cases, the phrase captures a complicated body of caselaw; You can’t just repeat the name for the test and think that the name accurately captures the doctrine. Rather, you need to recognize the test as a term of art that reflects a large body of caselaw, and you need to get the answer from the caselaw.

In the case of the “reasonable expectation of privacy” test, the Supreme Court has repeatedly [...]

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O Brother, Where Art Thou?

Recused, it turns out, if the brother is Justice Stephen Breyer and the other brother is Judge Charles Breyer. As Tony Mauro (Legal Times) reports, “Breyer makes it a practice to recuse in cases that were handled by his brother Charles, a federal trial judge in the Northern District of California.” My quick search for (charles +3 breyer) through the Westlaw SCT database supports this — in all three cases found by the search (Olympic Airways v. Husain, Department of Housing and Urban Development v. Rucker, and U.S. v. Oakland Cannabis Buyers’ Co-op.), Judge Breyer was the judge below and Justice Breyer recused himself.

This turns out to be important in the case involving the jail strip search / visual body cavity search policy, Bull v. City & County of San Francisco. Judge Breyer was the trial judge in that case, so presumably Justice Breyer will recuse himself. So if plaintiffs petition for certiorari, they need five votes without Justice Breyer’s vote (since a 4-4 vote affirms the decision below).

To get to those five votes, plaintiffs would have to get at least two votes from the Court’s conservative wing. I doubt they will get those two votes. They might not even get some of the liberal votes — even Justice Breyer wouldn’t be a sure vote for the plaintiffs. Still, without Justice Breyer, the plaintiffs would have to persuade not just the moderate conservative Justice Kennedy, but also one of the more solid conservatives (Chief Justice Roberts and Justices Scalia, Thomas, and Alito). Pretty unlikely, it seems to me.

So plaintiffs’ lawyers face an especially tough choice when deciding whether to petition for certiorari. The lawyers, given the nature of this case, are interested in jail inmates’ Fourth Amendment rights more broadly, and not [...]

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Ninth Circuit Upholds Jail’s Routine Strip Search / Visual Body Cavity Search Policy

A very interesting and important decision, in Bull v. City & County of San Francisco (en banc). Because it’s 6-5 on the merits (Judge Graber joined the majority as to qualified immunity, but agreed with the dissent’s underlying constitutional argument), and because it appears to deepen a circuit split, there’s a good chance that the case will go up to the Supreme Court, assuming the plaintiffs petition for certiorari. (Note that the policy “requir[ed] the strip search of all arrestees who were to be introduced into San Francisco’s general jail population for custodial housing.” The majority does not opine on strip searches of arrestees who are being booked and released.)

I think the majority is correct on the merits, and I also agree with Chief Judge Alex Kozinski’s very interesting and thoughtful concurrence (joined by Judge Ronald Gould, the one Democratic appointee in the majority); the concurrence begins on PDF p. 32. I particularly think that the majority’s result is all but dictated by Supreme Court’s 1979 Bell v. Wolfish decision, which in relevant part reads:

Inmates at all Bureau of Prisons facilities, including the MCC, are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution. Corrections officials testified that visual cavity searches were necessary not only to discover but also to deter the smuggling of weapons, drugs, and other contraband into the institution. The District Court upheld the strip-search procedure but prohibited the body-cavity searches, absent probable cause to believe that the inmate is concealing contraband. Because petitioners proved only one instance in the MCC’s short history where contraband was found during a body-cavity search, the Court of Appeals affirmed. In its view, the “gross violation of personal

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Cheek Swabs for Arrestees’ DNA Likely Don’t Violate the Fourth Amendment — Even Though Cheek Swabs of Pretrial Detainees Do Violate the Amendment

That’s the odd result of Haskell v. Brown, decided a month ago by Judge Charles Breyer of the Northern District of California. Judge Breyer (not to be confused with Justice Stephen Breyer, his brother) refused to preliminary enjoin the collection of cheek swab samples from arrestees, largely because he thought that the searches are likely consistent with the Fourth Amendment. But wait: The Ninth Circuit had held, in Friedman v. Boucher that such cheek swabs of pretrial detainees are generally unconstitutional. (We’re talking here about the taking of DNA just because someone is arrested or detained; if there’s probable cause to believe the DNA will reveal evidence of some crime — for instance, if there’s probable cause to think that this person is guilty of a rape, and the DNA is to be compared against DNA left at the scene of the rape — and a warrant based on probable cause, that’s clearly constitutional.)

Here’s the district judge’s explanation:

Plaintiffs will argue that so holding conflicts with the Ninth Circuit’s decision in Friedman. However, Friedman did not engage in a thorough totality of the circumstances test: it did not consider government interests beyond supervision, nor did it examine the extent of Friedman’s privacy interest. See 580 F.3d at 862-65 (Callahan, J., dissenting) (dissent, instead, conducted balancing analysis between individual’s privacy interests and government’s legitimate interest in identification). Though Friedman warns that “[n]either the Supreme Court nor our court has permitted general suspicionless, warrantless searches of pre-trial detainees for grounds other than institutional security or other legitimate penological interests,” the Court finds that doing so here — certainly at this stage of the litigation — is proper under the totality of the circumstances test required by Rise, Kincade and Kriesel [earlier cases upholding forced DNA swabs of people

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Does the Fourth Amendment Allow Extraterritorial State Search Warrants?

Last week, an Ohio appellate court handed down an opinion on a rarely-addressed but increasingly important question: Does the Fourth Amendment allow a state judge to issue a state warrant to search property located outside the state? The case is State v. Jacob, 2009 Ohio 7048, 2009 Ohio App. LEXIS 5903 (2d Dist. December 30, 2009). (Hat tip: Fourth The decision has some potentially significant implications for Internet warrants, so I wanted to blog a bit about it.

First, the facts, in somewhat simplified form. Jacob, a Californian, stole property from Schulz, an Ohioan. Shulz filed a complaint in Ohio. Eventually, Ohio authorities asked an Ohio state judge for a warrant to search Jacob’s home in California. The Ohio state judge granted the warrant, even though the Ohio warrant statute only allows magistrates to issue warrants to search within the court’s jurisdiction. Ohio authorities faxed the warrant to California state law enforcement authorities, and California authorities executed the warrant at Jacob’s home. The search uncovered the stolen property, leading to Jacob’s arrest in California and extradition to Ohio where he faced criminal charges. Jacob moved to suppress the evidence seized in California on the ground that an Ohio judge has no power to issue a warrant for a search in California:

[A] magistrate who acts beyond the scope of his authority ceases to act as a magistrate for Fourth Amendment purposes. We agree that, in Jacob’s situation, a violation of statutory provisions that a judge can issue a valid search warrant only within his or her court’s jurisdiction is a fundamental violation of Fourth Amendment principles. As Justice Holmes said in a different context in Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 40 S.Ct.182, 64 L.Ed. 319, a line must be drawn somewhere to prevent

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Can the Police Now Use Thermal Imaging Devices Without a Warrant? A Reexamination of Kyllo in Light of the Widespread Use of Infrared Temperature Sensors

In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court held that it violated the Fourth Amendment to direct an infrared thermal imaging device at a home without a warrant to determine the home’s temperature. This post asks whether that result is still good law. I realize that probably sounds a bit nutty at first, as Kyllo is only a few years old. But Kyllo deliberately adopted a test designed to let the result change with social practice . This post asks whether changing social practices already allow the police to use thermal imaging devices without a warrant.

I’ll look at the problem in three steps. First, I’ll explain the relevant Fourth Amendment test from Kyllo. Second, I’ll explain how technology and social practice have changed in the eight-and-a-half years since the Kyllo decision. And third, I’ll put the pieces together and ask whether Kyllo‘s result remains good law. My bottom line: I’m not really sure, but there is a decent case to be made that the police can now use thermal imaging devices without a warrant consistently with Kyllo.

I. Kyllo and General Public Use

In Kyllo, the police used an infrared thermal imaging device called an “Agema Thermovision 210” to scan a suspect’s home from the city street. The scan tool a few minutes, and it revealed that the roof over Kyllo’s garage was unusually hot — a sign, the government though, that the suspect was growing marijuana under heat lamps in the garage attic. The Supreme Court announced the following rule: “when . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is [...]

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Thoughts on Bryan v. McPherson, the New Ninth Circuit Taser Case

Earlier today I mentioned Bryan v. McPherson, the Ninth Circuit’s new case on police use of tasers. My earlier post was a partially tongue-in-cheek point about the possibility of Supreme Court review based on the panel and result alone, before I had even read the case. But now that I’ve read the case, I can take my tongue entirely out of my cheek and offer some thoughts on the case. Here’s what stood out to me in reading the case.

1) I was surprised that the opinion recounts the events from the perspective of the driver who was tased rather than the officer who did the tasing. Supreme Court precedent requires the lawfulness of a use of force to be judged from the officer’s perspective: “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene.” Graham v. Connor, 490 U. S. 386, 388 (1989). Instead of telling us what the officer perceived, the opinion takes us through the plaintiff’s morning and offers us a highly sympathetic perspective on why he was acting so strangely. (“Carl Bryan’s California Sunday was off to a bad start,” the opinion begins.) From a literary perspective, I find this rather engaging. It flows nicely, keeping the reader’s attention. But it leaves the reader rather in the dark on the only legally relevant perspective of how the facts looked to the officer “on the scene” who did the tasing.

2) The second odd part of the opinion is that it hands down a general legal rule about the use of tasers based only on a limited summary judgment record. The Court notes that Officer McPherson tasered Bryan with an X26 taser that has a 1200 volt charge; that Bryan testified (presumably in his deposition) [...]

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Supreme Court of Ohio Rejects Search of Cell Phone Incident to Arrest

The decision in State v. Smith is here, and the vote was 4-3. The majority’s reasoning is that while you can search a “closed container” found on a person incident to arrest, a cell phone is not a “closed container.” From the majority opinion:

The state argues that we should follow [United States v. Finley, 477 F.3d 250 (5th Cir. 2007)] and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison. Objects falling under the banner of “closed container” have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, “container” means “any object capable of holding another object.” New York v. Belton (1981), 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768, fn. 4. One such example is a cigarette package containing drugs found in a person’s pocket, as in United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.

We acknowledge that some federal courts have likened electronic devices to closed containers. E.g. United States v. Chan (N.D.Cal.1993), 830 F.Supp. 531, 534 (finding that a pager is analogous to a closed container), United States v. Ortiz (C.A.7, 1996), 84 F.3d 977, 984 (following Chan in holding that a pager is a closed container), United States v. David (D.Nev.1991), 756 F.Supp. 1385, 1390 (finding a computer memo book “indistinguishable from any other closed container”). Each of these cases, however, fails to consider the Supreme Court’s definition of “container” in Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo

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Will the Supreme Court Rethink Public Employee Privacy Rights in Quon?

The announcement of the cert grant in City of Ontario v. Quon means that the Supreme Court will revisit for the first time the splintered decision in O’Connor v. Ortega, 480 U.S. 709 (1987), that created the modern framework of public employee privacy rights. That raises the possibility that the Court might change the basic legal standard that lower courts have applied since O’Connor, shaking up the rules in this area that have long been considered settled. I wanted to blog a bit on what that means and why it matters.

Let’s start with private-sector employee rights. When a criminal investigation arises in the private workplace setting, there are three basic players: the Employee, the Boss, and the Policeman. The Boss is free to search the Employee’s space because the Boss is a private actor who is not regulated by the Fourth Amendment. On the other hand, the Policeman can’t enter the workplace without a warrant or the third-party consent of the Boss. Under the Fourth Amendment, we say that the Employee has a reasonable expectation of privacy in the workplace — at least the workplace not exposed to the public, such as the open areas of a store. At the same time, the Boss has very broad third-party consent rights to let the Policeman come in and search.

Now consider what changes in the setting of government employment. The Boss and the Policeman are now on the same team. They are both “the Government.” And the precise lines between the Boss and the Policeman may be hard to draw. If you go up the chain of government employment, you quickly get to the Boss who has both work-related control of the office and also control of criminal investigators or security officers who have the power to [...]

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Supreme Court Grants Cert on Fourth Amendment Protection in Text Messages

The Supreme Court announced this morning that it has granted cert in City of Ontario v. Quon, a case on whether a city employee’s Fourth Amendment rights were violated when city employees accessed text messages he sent on a city-provided pager when the city’s formal policy was that he had no privacy rights in his text messages but he had been told to the contrary by his boss.

The grant is good for business, but I find it rather odd. The basic issue of Fourth Amendment protection in text messages is splitless: Quon was the first court of appeals case to address the issue. Further, the question of how to deal with mixed messages of privacy in the context of public employee Fourth Amendment rights is splitless and factbound. That leaves me wondering why the Court was interested in the case. Indeed, when I was asked by a reporter recently whether I thought the Court might take the case, I confidently answered “no.” Factbound, splitless. I recommend DENY.

So what explains the grant? It must be that old Ninth Circuit magic. The opinion below was by a liberal Ninth Circuit panel: Wardlaw joined by Pregerson and a district judge. And then the opinion drew a vigorous dissent from denial of rehearing en banc by conservatives — Ikuta, O’Scannlain, Kleinfeld, Tallman, Callhan, Bea, and N.R. Smith — who accused the majority of getting it wrong and making the sky fall on how to apply O’Connor v. Ortega, 480 U.S. 709 (1987), the leading case on Fourth Amendment rights in the public employment setting. That one-two punch is hard for the Supreme Court to resist. The dissent from denial of rehearing en banc becomes the cert petition. So I suspect the Court granted based more on the dissent from [...]

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Does the Fourth Amendment Prohibit Warrantless GPS Surveillance?

Does the Fourth Amendment require a warrant to conduct surveillance of a government-installed GPS device, such as a device installed on a suspect’s car to monitor the car’s location? This issue comes up occasionally, and the DC Circuit has a case pending on the issue. I don’t think I have ever blogged about it, so I want to offer my thoughts. This post will explain why I think the doctrine here was settled by a pair of Supreme court cases from the 1980s, and why those cases draw a pretty reasonable Fourth Amendment line.

I. Supreme Court Precedents: Knotts and Karo

In the 1980s, the Supreme Court decided two cases on whether the Fourth Amendment requires a warrant for the government to monitor a suspect’s location using a government-installed locating device. Both cases involved beepers, defined as “a radio transmitter, usually battery-operated, which emits periodic signals that can be picked up by a radio receiver.” The combined holding of United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), was that the constitutionality of warrantless beeper surveillance depends on what information the beeper reveals. Beeper surveillance that reveals the location of the beeper in a public place does not require a warrant (Knotts); on the other hand, beeper surveillance that reveals the location of the beeper inside a home does require a warrant (Karo).

The Court did leave open the door to a different approach, however. In the first of these two cases, Knotts, the Supreme Court addressed the concern that the power to conduct public surveillance using beepers might allow “dragnet-type law enforcement.” Then-Justice Rehnquist suggested that abuses occurring under the Court’s rule might justify a different result:

[The Defendant] expresses the generalized view

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Michigan v. Fisher

This morning the Supreme Court handed down a per curiam Fourth Amendment decision, Michigan v. Fisher. The facts of Fisher are pretty similar to Brigham City v. Stuart, 547 U. S. 398 (2006), and the Supreme Court reversed the decision suppressing the evidence on the strength of Stuart. The most surprising aspect of the case is the Court’s bothering to take it. The Court reviewed a state intermediate appellate decision after the state Supreme Court denied review. So my overall take is that this seems like error-correction just to make sure the state Supreme Courts are paying attention.

Perhaps the most interesting aspect of the case is the dissent by Justice Stevens, joined by Justice Sotomayor. After noting the factual testimony at the hearing, which convinced the trial court to suppress the evidence, Justice Stevens says the following:

Today, without having heard [the trial] testimony, this Court decides that the trial judge got it wrong. I am not persuaded that he did, but even if we make that assumption, it is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind. We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer’s actions, particularly in a case tried in a state court. I therefore respectfully dissent.

Justice Stevens doesn’t like summary reversals, and he frequently dissents from them. So perhaps this paragraph signals a dissent from the decision to review the case at all more than a view of the legal merits.

To the extent it is making a legal argument, though, I don’t quite see the argument. How is it “micromanaging day-to-day business” to grant a cert petition filed at the end of the [...]

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