The Volokh Conspiracy

On November 8th, the Supreme Court will hear oral argument in United States v. Jones, the case on whether installation and/or use of a GPS device on a suspect’s car to record the public places the car travels is a Fourth Amendment search or seizure. I wanted to offer my thoughts on the case.

At the outset, here’s my bottom line: I’m not sure which side should win. On one hand, I don’t think use of the device should be deemed a search or seizure. On the other hand, I am genuinely divided on whether I think the installation should be deemed a search or seizure. Given these two positions, I don’t have an answer to whether the combined installation and use should be permitted without Fourth Amendment oversight (although I have a lot of views on better or worse ways to get to either result). Regardless of how the Court rules, however, I think a new privacy statute is needed to address both government and private sector use of GPS surveillance.

I’m going to make that case over three posts. In this post, I’m going to address the first Question Presented (QP) in Jones: Whether the use of the device to obtain location information should be deemed a search or seizure. (My answer: No.) In the next post, I’m going to address the second QP, whether installation of the device is a search or seizure. (My answer: I’m divided.) And in the third post, I’m going to address the need for and likelihood of statutory regulation of GPS, especially if the Court rules for the government in the Jones litigation.

So that’s the game plan. On to the first post, on whether use of the device is a search.

I. The Inside/Outside Distinction

Let’s start with first principles. The text of the Fourth Amendment states that the Amendment protects security in “persons, houses, papers, and effects,” and the Fourth Amendment’s prohibition on unreasonable “searches” does so by protecting invasions into those private spaces. Over the years, the Supreme Court has developed a relatively simple line for distinguishing the invasions into persons, houses, papers, and effects that the Fourth Amendment regulates as “searches” from the investigative steps that the Fourth Amendment does not regulate. That distinction is the line between what I will call inside surveillance and outside surveillance: Surveillance of outside spaces is always permitted, while surveillance of inside spaces is a regulated “search.”

Consider a few examples. Government entry into a home is a search, as is entry into a car, or a sealed package, or a letter, or a person’s pockets. These are all intrusions into persons, houses, papers, and effects. They are all searches. On the other hand, surveillance in public places that does not enter into private spaces, such as watching someone on the street, looking at their faces, examining the outside of their packages, overhearing their voice, or following someone in a store open to the public, is not a search. These are not intrusions into persons, houses papers, or effects, and they are not searches under the Fourth Amendment.

Interestingly, you get these same results regardless of version of the Supreme Court’s doctrine you apply. You get the same results whether you get these results under the “protected areas” test that preceded the 1967 Katz case, or the Katz “reasonable expectation of privacy” test that the Court has adopted since then. The results are the same: A search occurs when the government intrudes upon a private person, house, paper, or effect, but does not occur when the government merely observes something in a public space or in a space where the government is otherwise entitled to be. I will refer to this using the short-hand of inside versus outside surveillance, as I did in this article.

The fundamental distinction between inside and outside surveillance leads to some close calls, to be sure. For example, imagine the police approach a home, walk directly up to an open window, press their faces up to the window, and peer in to see what is in the room inside. Technically, that is surveillance from an open space, but functionally it is surveillance of the inside of the home. Is that protected inside surveillance, or unprotected outside surveillance? The Supreme Court has created the distinction between “curtilage” and “open fields” to answer that: The outside area immediately around the home that can be used to peer inside the home is treated as inside surveillance (curtilage) rather than outside surveillance (open fields). See United States v. Dunn. Similarly, imagine the police use a thermal imaging device to determine the exterior temperature of a wall on the home. Is that outside surveillance, as it is only of the outside of the wall exposed to the public, or is that inside surveillance, as it reveals information about the inside of home? It’s a tricky call, as the 5-4 decision in Kyllo v. United States reveals. But the basic point remains: The distinction between inside and outside surveillance is the basic building block of the Supreme Court’s “search” cases.

II. The Knotts and Karo Precedents from the Radio Beeper Era

How does this distinction apply to the use of government surveillance devices installed to determine the location of property used or controlled by a criminal suspect? The Supreme Court first grappled with this in two cases in the 1980s, United States v. Knotts and United States v. Karo. Both cases involved radio beepers provided by the government that the suspects did not realize were present and broadcasting their location. The technology was crude compared to today’s GPS technology, but it did the job: It enabled the government to know the location of the beepers, and thus, implicitly, the location of the suspects that the police wanted to follow.

Knotts and Karo reasoned that the way to translate the traditional Fourth Amendment protection to the era of high-tech radio beepers was to focus on the information that the surveillance devices revealed. Recall that the traditional Fourth Amendment rule was that the police could always watch a suspect in public (no search), but that they could not enter protected spaces without a warrant or some Fourth Amendment oversight (a search). Knotts and Karo together drew the same line for government-installed location devices: If the device is used to monitor a location in public, then no search occurred (Knotts), but if the device was used to monitor a location inside a protected space, like a home, then a search occurred (Karo).

To my mind, there is a lot of wisdom in the Knotts/Karo line. As I argue in a forthcoming article, it is a constant challenge for courts to adjust Fourth Amendment rules to maintain the level of constitutional protection as technology changes. I think Karo and Knotts did that quite well: They maintained the basic distinction between inside and outside surveillance by focusing on whether the information obtained was information about what was happening outside (the location of property out in public) or what was happening inside (the location of property inside a home). The facts changed, but the Knotts/Karo line maintained the same equilibrium of police power and privacy rights across that shift from one technology (visual surveillance) to another (radio beepers).

III. Does GPS Surveillance Justify A Departure from the Knotts/Karo Line?

That brings us to Jones. In Jones, a GPS device was placed on the suspect’s car. The trial court concluded that the evidence of the GPS device in the suspect’s garage had to be suppressed under Karo, but that the evidence of the GPS device in public was permitted under Knotts. Only the latter evidence, the evidence of the location of the car on the public street, is at issue in the Jones case. The basic argument of the defendant-respondent in Jones is that GPS surveillance is different from radio beeper surveillance, and that those differences justify a departure from the Knotts/Karo information-based approach. The gist of the argument is that GPS monitoring is just too invasive to be allowed without judicial oversight — the monitoring is too constant, too easily done, too continuous, and too detailed.

As I understand this argument, the basic move is to replace the inside/outside distinction with a different approach, one based on more amorphous standard of what is very invasive. According to the respondent in Jones, the Fourth Amendment should not track inside versus outside: Rather, it should measure an overall amount of invasiveness. Under that approach, a person can have a reasonable expectation of privacy in open public spaces just as they can in private spaces. What matters is whether the manner in which the public or private surveillance is conducted is too invasive and creepy to go without Fourth Amendment protection, not whether the monitoring happens to be of public and open or private and enclosed spaces.

I think this is a unpersuasive argument, and that the Justices should reject it for three reasons.
Continue reading ‘My View of the First Question Presented in United States v. Jones, the Fourth Amendment GPS Case’ »

The Ninth Circuit handed down a divided en banc decision today in the consolidated cases of Brooks v. Seattle and Mattos v. Agarano, which consider the Fourth Amendment limitations on the use of tasers. The Ninth Circuit judges divided 6-4 on whether the use of force was excessive and therefore violated the Fourth Amendment. For a bunch of reasons, the case strikes me as a plausible candidate for Supreme Court review.

Excessive force cases are always fact-specific, but here are the basic facts of the two cases. In the first case, Brooks, the plaintiff was arrested for refusing to sign her speeding ticket. She then refused to get out of the car upon her arrest. The officer told her he would have to tase her if she didn’t get out of the car, but she still refused, and he tased her on a low setting. She still refused to get out of the car, and the officer then tased her on a higher setting. In the second case, Mattos, the police responded to a 911 call about a domestic dispute between a husband and wife. After a brief investigation, the police announced that they were placing the husband under arrest. The wife was physically between the arresting officer and her husband at that time, and she did not move; as the officer approached, she put up her hands to block the officer and apparently said something about the need for them to defuse the situation. The officer responded by tasing the wife.

The majority opinion by Judge Paez concludes that the use of tasers to subdue individuals on those two cases was excessive, but that qualified immunity applies. Judge Kozinski wrote a partial dissent and would have held that the tasering was not excessive force. Kozinski presents tasers as a safer alternative than direct physical force, and concludes:

The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they’re required to use force. My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries. This mistake will be paid for in the blood and lives of police and members of the public.
Today’s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety. One can only hope the Supreme Court will take a more enlightened view.

Note that under Camreta v. Greene, the officers could still obtain Supreme Court review of the merits of the Fourth Amendment issue even though they won on immunity grounds in the Ninth Circuit. Thanks to How Appealing for the link.

I attended the oral argument this morning in Florence v. Board of Chosen Freeholders of the County of Burlington, a case on whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses. To my mind, the case is really a follow-up to Atwater v. City of Lago Vista, 532 U.S. 318 (2001), in which the Court considered whether the Fourth Amendment allows arrests even for very minor offenses. In Atwater, the Court concluded that the Fourth Amendment does allow arrests even for very minor offenses — in that case, a seatbelt violation that led to a small fine. Florence requires the Court to confront a downstream implication of Atwater: If the Fourth Amendment allows the police to make the arrest for the very minor offense, and the arrestee is then brought to the jail, does the Fourth Amendment also allow the kind of invasive strip search that often occurs on entry into jail to ensure that no contraband is brought inside?

The arguments in Florence largely resembled the arguments in Atwater. The question is, does it work to create a Fourth Amendment rule that specially treats the relatively rare case of arrestees for minor crimes and those that aren’t dangerous or likely to be bringing in contraband differently than the run of criminal cases? Or should the Court conclude that the Fourth Amendment leaves this relatively rare case to the discretion of the government and perhaps the political process?

In Florence, the problem for the challlengers to the government’s action is that everyone concedes that there are some circumstances in which the government needs to conduct some sort of inspection of arrestees for contraband as they enter a prison. The challengers, representing the petitioner Florence, therefore had the hard line-drawing problem: How to distinguish the different kinds of possible inspections, and how to say when different inspections are permitted?

As I understood the oral argument, the Petitioner, represented by Tom Goldstein, took the view that the government can always watch arrestees from 10 feet away or a similar distance while the arrestees are showering before entering the jail. If the government wants to inspect the arrestees more closely, however, such as at a close arms-length distance, then reasonable suspicion is required. According to Goldstein, reasonable suspicion should always exist when the arrest is for a major offense. In contrast, case-by-case reasonable suspicion should be required for arrests for minor crimes. The Respondents, represented by Carter Phillips, took the view that no line drawing was required: As long as the inspection was only visual inspection of the outside of a person’s body, then the Fourth Amendment did not apply at all upon entering a prison.

My sense of the argument was that the Justices were pretty skeptical of engaging in the kind of line-drawing that the Petitioner advocated. It was just too hard to distinguish a 10-foot inspection from a 5-foot inspection from a 2-foot inspection, or to distinguish a major crime from a minor one. So I would guess the votes will be there for a conclusion that no line-drawing as required, as the government has the discretion to do a close visual inspection of all arrestees when they enter jail.

UPDATE: The transcript has now been released, and is available here. Also, I have an expanded version this post that is up at SCOTUSblog here.

The U.S. Supreme Court denied cert last week in Diaz v. California, a Fourth Amendment case from California’s Supreme Court which held that a cell phone can be searched incident to arrest. Meanwhile, over the summer, California state legislators passed SB 914, a bill limiting searches incident to arrest in California. Just today, however, California Governor Jerry Brown vetoed the bill and released the following statement:

This measure would overturn a California Supreme Court decision that held that police officers can lawfully search the cell phones of people who they arrest. Courts are better suited to resolve the complex and case specific issues relating to constitutional search-and-seizures protections.

I think Governor Brown has it exactly backwards. It is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cell phones. Changing technology is a moving target, and courts move slowly: They are at a major institutional disadvantage in striking the balance properly when technology is in flux for the reasons I developed in this article. In contrast, legislatures have a major institutional advantage over courts in this setting. They can better assess facts, more easily amend the law to reflect the latest technology, are not stuck following precedents, can adopt more creative regulatory solutions, and can act without a case or controversy. For these reasons, legislatures are much better equipped than courts to strike the balance between security and privacy when technology is in flux.

Perhaps the major disadvantage of legislatively-made search and seizure rules is that the head of the executive branch that oversees law enforcement also generally has the veto power over the legislature’s efforts. The head of the executive branch can therefore block limits on the executive’s own power, at least in some circumstances. I don’t follow California politics much, but I would guess this reality, not institutional advantages of courts and legislature, is what really led to Governor Brown’s veto.

In recent years, lower courts have struggled to figure out how the Fourth Amendment applies to the collection of DNA from a suspect to try to prove identity in a criminal case (typically in rape cases). In general, courts have held that if a suspect uses a cup and throws it away, or spits on a sidewalk, the police can recover the cup or the spit and test it without triggering the Fourth Amendment. The suspect has “abandoned” the DNA, the thinking goes, so he has no continuing Fourth Amendment right in it. On the other hand, if the police for a suspect to submit to a DNA test, such as a inner-cheek swab for saliva, the suspect has Fourth Amendment rights in the DNA. Courts have not settled on exactly what protection the Fourth Amendment applies in those cases, and in particular whether a warrant or just some cause is needed to force the cheek swab. But they agree that there is at least some Fourth Amendment protection.

In Raynor v. State, the suspect in a rape case was asked to come to the police station for an interview. At the station, he was asked to submit to a DNA sample. The suspect refused. When the suspect left, however, the police swabbed the chair in which he had been sitting and were able to collect his DNA:

At that time, appellant was wearing a short-sleeved shirt and, according to Trooper Wenger, “kept rubbing his arms up and down the armrests of the chair.” . . . After appellant left the police barracks, Sergeant Decourcey swabbed the armrests of the chair on which appellant had been sitting. The swabs were submitted to the Maryland State Police Forensic Lab, where the forensic sciences supervisor, Bruce Heidebrecht, extracted DNA from the swabs and developed a DNA profile for comparison purposes. That DNA profile was found to match the DNA profile developed from the evidence taken from the pillow case and the patio at the scene of the crime.

Held, by the Court of Special Appeals of Maryland: The collection and analysis of the DNA was not a Fourth Amendment search. From the opinion:

DNA evidence, when used for identification purposes only, is akin to fingerprint evidence. And, although fingerprint evidence is suppressible if it is obtained in the course of an unlawful detention, see Hayes v. Florida, 470 U.S. 811, 816 (1985); Davis v. Mississippi, 394 U.S. 721, 727 (1969), the fingerprinting process itself “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.” See United States v. Dionisio, 410 U.S. 1, 15 (1973) (quoting Davis, 394 U.S. at 727).

Thus, even if appellant could demonstrate a subjective expectation of privacy in his DNA profile, he nonetheless had no objectively reasonable expectation of privacy in it because it was used for identification purposes only. As in Williamson [an earlier Maryland case involving recovery of a cup the suspect had used and thrown away], the police were in lawful possession of the item from which the DNA was collected. In Williamson, the cup from which the DNA was collected came into police possession when the suspect discarded it in the holding cell; here, the chair in the police barracks was, from the outset, in the possession of the police. Thus, like the analysis of a latent fingerprint, which involves no physical intrusion into the body and is used for identification purposes only, the analysis in the instant case of DNA evidence, which was in the lawful possession of the police, was not a constitutionally protected search.

I don’t yet have a settled view of how the Fourth Amendment applies to the collection and analysis of DNA, but the analogy between DNA and fingerprint evidence strikes me as questionable. Fingerprint evidence is on the surface. It is often visible to the unaided eye, and anyone can pick it up. In contrast, obtaining a DNA sample requires extracting it from a sample, in ways that in some ways resemble drug testing of urine samples. Although the law isn’t totally clear on this, there is some authority for the view that the extraction may make a Fourth Amendment difference, see Skinner v. Railway Labor Executives Assn (1989) (holding that collection and drug-testing of a urine sample is a search, in part because of what the chemical analysis reveals). I think you can see the questionable fit here in the court’s suggestion that limiting the use of the DNA sample to identification purposes is important: It’s not clear to me how that could be right, given that the Fourth Amendment does not impose use restrictions.

Thanks to FourthAmendment.com for the link.

In an earlier post, I looked at the Petitioner’s arguments made in the merits brief filed in United States v. Jones, the Fourth Amendment GPS surveillance case. In this post, I wanted to break down the Respondent’s merits brief in the same way.

I. The Four Models of Fourth Amendment Protection

First, a recap. In a recent article, I argued that the “reasonable expectation of privacy” test is best understood as four different inquiries. See Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007). That is, there are four different kinds of arguments that the Supreme Court made about when the government violates a reasonable expectation of privacy and therefore is a Fourth Amendment “search.” Here are the four models I identified:

(1) the probabilistic model, by which an expectation of privacy is reasonable or not based on how common or expected the government’s conduct appears to be.
(2) the private facts model, by which an expectation of privacy is reasonable or not based on the nature of the information disclosed regardless of how it is obtained,
(3) the positive law model, by which an expectation of privacy is reasonable or not based on whether the government’s conduct violated some source of law outside the Fourth Amendment, and
(4) the policy model, by which an expectation of privacy is reasonable or not based whether it is desirable to have that outcome as a matter of policy.

Briefs and opinions tend to mix and match the models, making arguments using the model or models that support the argued-for result in that particular context.

II. The Defendant’s Merits Brief in United States v. Jones

Recall that the investigations in Jones attached a GPS tracking device to the suspect’s vehicle and tracked the vehicle’s location on public streets over time. The first question raised by the case is whether the use of the GPS device violated the suspect’s “reasonable expectation of privacy.” Much like the government’s brief, the defense’s brief provides a helpful case study of how arguments based on the four models tend to work.

Here’s how the arguments break down. The defendant’s brief starts by relying on the positive law model. The government action was a search because it infringed upon the defendant’s property rights, and because the same conduct by a private party would be a tort and (in some states) a crime. Indeed, a few states have barred warrantless GPS surveillance by statute. The fact that the government’s conduct violates the principles in those bodies of law outside the Fourth Amendment indicates that the conduct violated a reasonable expectation of privacy. See pages 16-22.

The brief then turns to the policy model. Warrantless GPS surveillance violates a reasonable expectation of privacy becayuse it is very invasive and easy to do, and letting the government conduct such surveillance without judicial oversight gives the government too much power. See pages 24-28. Next the brief turns to the private facts model, and argues that the level of detail in the information that can be obtained from a GPS device makes its use a search. See pages 28-30.

After responding to the Government’s brief, Jones’s brief then returns to the policy model to distinguish the earlier beeper cases on the ground that GPS surveillance raises much more of a dragnet concern than beepers. See pages 39-42. The brief then goes back to the private facts model to argue that the net sum of private facts gathered by GPS is very invasive. See pages 43-45.

(cross posted at SCOTUSblog)

The Fourth Amendment allows the police to pull over a driver who has committed a traffic violation, and to detain that person for a reasonable period of time to investigate the traffic violation. The officer generally can ask questions unrelated to the traffic violation so long as the questioning doesn’t extend the traffic stop for more than a de minimis period of time. If the officer asks too many unrelated questions for too long, the stop exceeds the Fourth Amendment and any evidence that is found based on the extended questioning generally will be suppressed. But courts usually defer to the police in making these sorts of judgements: Judges usually conclude that added questioning didn’t extend the length of the stop too much, and so the stop was still reasonable.

Given that usual pattern, I was surprised when I first saw the blurb over at FourthAmendment.com about the Fifth Circuit’s new decision in United States v. Macias, ruling that a traffic stop was unconstitutional because the officer asked too many questions unrelated to the stop that extended the stop for too long. But then, in reading over the court’s reasoning, I was struck by something: The traffic stop was videotaped. I’m just speculating, but I would guess that the videotape gave the defendant a major advantage in litigating the case. The videotape gave the defendant the record of the details of the stop, which could show just how the officer extended the length of the stop and all of the unrelated questions that he asked.

Consider how Judge Jolly explained the facts of the case in the excerpt below. By way of background, the officer pulled over a car for a seatbelt violation. A lot of questioning followed, and the officer ultimately searched the car and found a firearm that led to charges against Macias for being a felon in possession of a gun. The defendant, Macias, argued that the officer improperly extended the duration of the traffic stop by asking lots of questions unrelated to the seatbelt violation:

Macias contends that before Trooper Barragan ran the computer checks, he engaged in detailed questioning about matters unrelated to Macias’s driver’s license, his proof of insurance, the vehicle registration, or the purpose and itinerary of his trip that unreasonably prolonged the detention without developing reasonable suspicion of additional criminal activity. We agree.

Nearly eleven minutes passed from the time that Trooper Barragan stopped Macias until he ran the computer checks. During this time, Trooper Barragan questioned Macias and Zillioux extensively about the purpose and itinerary of their trip. Such questions, as discussed, are permissible because they were related in scope to Trooper Barragan’s investigation of the circumstances that caused the stop. Id. Trooper Barragan, however, asked numerous questions that were not directed to the itinerary or purpose of Macias’s trip to Victoria. Trooper Barragan asked Macias if he currently was employed, what type of work he did, whether he owned his own business, and whether he had been in “trouble” previously. Because Macias had informed Trooper Barragan that his trip to Victoria was medically-related, his job and an ambiguous question related to whether Macias had been in trouble previously had no apparent relation to the itinerary or purpose of the trip.

Further, the video recording shows that Trooper Barragan asked Zillioux a series of questions in quick succession about how long her mother and Macias had been in a relationship, whether Macias had been in trouble previously, how many children Zillioux had, who was watching her children while she was away, why her mother had not accompanied her and Macias on the trip, and for whom she, her mother, and Macias worked. Trooper Barragan admitted at the suppression hearing that these questions were unrelated to Macias’s failure to wear a seatbelt, the circumstance that justified the stop in the first place. Hence, it is clear that Trooper Barragan asked numerous unrelated questions.

We next must determine if these unrelated questions impermissibly extended the duration of the stop. Approximately two minutes passed between the time Trooper Barragan initiated the stop and initially questioned Macias and Zillioux while they sat in the truck. It was not until Macias followed Trooper Barragan to the area in front of the patrol vehicle that Trooper Barragan began to ask questions unrelated to the purpose and itinerary of the stop. Nearly eight minutes elapsed from that point until Trooper Barragan ran the computer checks. Though we recognize that during this time Trooper Barragan also asked Macias and Zillioux questions related to the purpose and itinerary of the trip, Trooper Barragan extensively questioned them both on unrelated topics. These questions therefore extended the stop by some length of time.

Again, I’m just speculating. But I would think that the details of the stop from the videotape were pretty critical in helping the defendant build the case that the officer extended the stop with his questions. Absent the videotape, the factual record would be much less certain. The officer’s recollection would be the primary evidence, and the court would probably have a picture of a relatively brief stop with a wide range of questions by a talkative cop. The videotape shows the details of each question, second-by-second. I would think it was very helpful in providing the evidence for the Court to find a Fourth Amendment violation.

The New York Times has a story on the police “stop and frisk” policies in New York City that states:

Critics say that as part of the Police Department’s stop-and-frisk policy, officers routinely tell suspects to empty their pockets and then, if marijuana is displayed, arrest them for having the drugs in public view, thereby pushing thousands of people toward criminality and into criminal justice system.

Over at Prawfs, Dan Markel notes the serious problems this practices raises from a standpoint of criminal law. I wanted to flag another question: Does ordering a suspect to empty his pockets during a stop-and-frisk violate the Fourth Amendment? That turns out to be a pretty interesting question, on which there is a split in the lower courts.

First, some background. Under Terry v. Ohio and its progeny, the police can “pat down” a suspect for weapons if they have specific and articulable facts that the suspects are armed and dangerous. The cases say that this has to be a search for weapons, not drugs. If an officer feels something through clothing and he suspects that the “something” is drugs, not a gun, he can’t pull out the something and open it to look for drugs. See Minnesota v. Dickerson. In reality, officers routinely flout this limitation. They just say that they are looking for guns, and that the drugs they pulled out from the suspect’s pocket really felt like a gun, not drugs. But there is at least some scrutiny of the searches, with at least a theoretical limit on an officer’s ability to find drugs when he is supposed to be searching for weapons.

Police orders to empty pockets potentially go far beyond that power. A police order to a suspect to empty his pockets can allow an officer to do indirectly what he can’t do directly. Terry doesn’t allow the police to just reach in and empty a suspect’s pockets, exposing all of its contents to plain view. See Sibron v. New York. Rather, Terry requires officers to pat down the suspect from the outside and then only retrieve what may be a weapon. The question is, does the Fourth Amendment allow police officers to order suspects to empty their pockets in lieu of conducting the frisks directly? That is, can the officer order the suspect to do what the officer cannot himself do?

It is clear from the cases that the officer’s order still makes the emptying of the pockets a search. As Judge Sutton recently stated, “an officer may not sidestep the requirements of the Fourth Amendment by directing a suspect to ‘empty your pockets,’ then disclaim any constitutional violation on the ground that he verbally directed the suspect to act without touching or in any way searching him.” United States v. Street, 614 F.3d 228, 234 (6th Cir. 2010). But the trickier question is whether that search is a “reasonable” search under Terry. My quick research suggests that the lower courts are divided on the question.

On one hand, the Fifth Circuit has taken the view that orders to empty pockets are permitted by Terry because they don’t seem more intrusive than a Terry frisk:

Agent Morales did not frisk defendant after he detained him; rather, he asked defendant to empty his pockets and raise his shirt. Defendant contends that Agent Morales exceeded the bounds of Terry by requesting that defendant empty his pockets and lift his shirt. The issue then is whether asking a suspect to empty his pockets and raise his shirt is more intrusive than the frisk permitted in Terry and therefore prohibited by the Fourth Amendment. “Terry does not in terms limit a weapons search to a so-called ‘pat-down’ search. Any limited intrusion designed to discover guns, knives, clubs or other instruments of assault are [sic] permissible.” United States v. Hill, 545 F.2d 1191, 1193 (9th Cir.1976). Thus, the raising of a suspect’s shirt by a law enforcement officer does not violate the boundaries established in Terry. Id. Neither does directing a suspect to lift his shirt to permit an inspection for weapons; a request that a suspect lift his shirt is “less intrusive than the patdown frisk sanctioned in Terry.” Baker, 78 F.3d at 138. At no time during the inspection for weapons did Agent Morales touch the defendant. Non-consensual touching of another in most cases is clearly more intrusive of an individual’s personal security than is a request to raise a shirt or to empty pockets. Agent Morales’ request that defendant empty his pockets and lift his shirt was permissible under Terry.

United States v. Reyes, 349 F.3d 219 (5th Cir. 2003). Other courts have disagreed, arguing that officers lack the power to search pockets themselves and can’t circumvent that limitation by having suspects empty their pockets instead. See, e.g., State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375 (1991); State v. Bastian, 37 Kan.App.2d 156 (2007); Matter of Bernard G., 247 A.D.2d 91 (N.Y.A.D. 1 Dept. 1998). See also R.B. v. State, 975 So.2d 546 (Fla.App. 3 Dist. 2008) (“For Fourth Amendment purposes there is no constitutional difference between an order that the student empty his pockets, and the security officer’s conducting a search by reaching inside the student’s pockets.”)

Professor LaFave has argued that the 5th Circuit’s opinion in Reyes is unpersuasive:

[W]hile the nontouching alternative may be in one sense less intrusive, it is more intrusive than the pat-down alternative because all contents of the pockets are exposed to police view without regard to whether any of the objects feel sufficiently like a weapon to be examined after a pat-down.

LaFave, 4 Search & Seizure § 9.6 n. 184 (4th ed.)

Off the top of my head, I tend to agree with LaFave on this one. In my view, an officer can’t do indirectly what the law prohibits him from doing directly. If the law prohibits a police officer from putting his own hands in a suspect’s pocket and emptying out the contents, it should also prohibit him from ordering the suspect to empty out the contents of his pockets. Indeed, it seems to me that the order to empty pockets may be more constitutionally suspect than an officer searching the pockets directly, rather than less. The entire point of the Terry frisk power is to look for weapons. The idea is that an officer may reasonably fear that the suspect has a knife or gun, and the officer therefore must have a limited but essential power to defend himself by disabling the threat against him. I’m no expert in such things, but I would guess that an officer with a genuine fear that a suspect is armed would want to disarm the suspect himself rather than order the suspect to reach into his pockets and retrieve the arms. If that’s right, I would think that an order to empty pockets is much more likely to be about a search for something other than the guns and knives that are supposed to be the targets of a Terry frisk.

The legal question: When a computer is in screensaver mode, does a police officer’s touching a key or moving the mousepad in order to reveal the contents of the screen constitute a Fourth Amendment “search”?

The facts: The local police received a few citizen calls about a threat posted on Craigslist regarding possible planned violence at a local shopping mall. The police contacted Craiglist and obtained contact information for the person who posted the threat. They visited the man at his home, and the man invited the officers inside. While the officers were present in the home, an officer saw a laptop computer that was either off or in screensaver mode. The officer touched a key or moved the mousepad, and the computer came out of screensaver mode. The officer could then see the contents of the screen, and those contents revealed the suspect’s Facebook wall. The Facebook wall contained a “status update” in which the suspect discussed the mall and wrote that another mall was next, and it also showed that the defendant had “liked” a group about the need to change the mall. The police arrested the suspect and took a way the computer. After being charged with making a threat, the suspect-turned-defendant moved to suppress the information relating to the threat found on the computer. He argued, among other things, that taking his computer out of screensaver mode to see the Facebook Wall was a “search” that required some sort of justification under the Fourth Amendment.

The ruling: In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.):

Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer’s manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir.2010)(citing Platteville Area Apt. Ass’n v. City of Platteville, 179 F.3d 574, 580 (7th Cir.1999)). The Court therefore recommends that the defendant’s Facebook wall be suppressed.

My view: That ruling is correct. As I argued in Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005):

Accessing information from a computer breaks the seal between public and private, much like entering a home or opening a package. . . . It means, among other things, that accessing information from a computer ordinarily should be a Fourth Amendment “search” that requires a warrant or an exception to the warrant requirement. In general, an investigator who sees a suspect’s computer and starts looking through files is conducting a Fourth Amendment search.

. . . The best answer is that a search occurs when information from or about the data is exposed to possible human observation, such as when it appears on a screen, rather than when it is copied by the hard drive or processed by the computer. I will label this the “exposure-based approach” to interpreting Fourth Amendment searches. . . .

First, focusing on the exposure of data most accurately transfers our physical world notions of searches to the context of computers. Entering a house is a search of physical space because it exposes to human observation the otherwise hidden interior of the house. In the computer context, there is no need to focus the “search” inquiry on a physical action like entry; the law can look directly to exposure. The exposure-based approach focuses doctrinal attention on the key question from the perspectives of individuals and the police alike–whether and when a person’s information will be kept private or exposed and shared with the police. A computer is akin to a virtual warehouse of private information, and the exposure-based approach allows the courts to monitor and require justification for each retrieval of information from the warehouse. It imposes the Fourth Amendment as a barrier to the retrieval of information from nonobservable form to observable form.

Thanks to FourthAmendment.com for the pointer.

I blogged about the panel decision in Amnesty International v. Clapper in March, opening and closing my post with the following two paragraphs:

On Monday, the Second Circuit handed down a very important decision on standing to challenge secret surveillance programs in Amnesty International USA v. Clapper. The decision, by Judge Gerard Lynch and joined by Judges Calabresi and Sack, offers a very easy way for plaintiffs to have Article III standing to challenge surveillance statutes. The opinion strikes me as puzzling, however, and it appears to be in conflict with other Courts of Appeals cases on standing to challenge surveillance regimes. I suspect Supreme Court review is a serious possibility.

Whether you like the new decision or not, I suspect it’s not the last we’ve heard on this issue. The opinion strikes me as in pretty direct tension with cases like ACLU v. NSA, the 6th Circuit’s case rejecting standing for the NSA’s warrantless surveillance program during the Bush years. Given the importance of the issue, and the tensions among the circuits, I would suspect this case may be headed upstairs.

DOJ petitioned for rehearing, and the Second Circuit denied rehearing yesterday in an evenly divided 6-6 vote. A flurry of opinions concurring and dissenting from the denial followed, which are generally pretty strongly worded. To my mind, those opinions make the Clapper case an excellent prospect for Supreme Court review.

I wonder if this really matters, though. Much of the discussion in the opinions concerns the fact that this is a facial challenge, not an as-applied challenge. But there’s an underlying oddity that the opinions don’t mention: Facial challenges are generally frowned upon in Fourth Amendment law, and it’s not clear that the law permits one to be mounted against the FISA Amendments Act at all even if plaintiffs have Article III standing. The key case is Sibron v. New York, 392 U.S. 40 (1968), in which the parties tried to litigate a facial challenge to a stop-and-identify statute. Sibron appears to say that you can’t bring an facial challenge to a statute that regulates warrantless searches and seizures: Facial challenges can only be brought against statutes governing the issuing of warrants. Here’s the key passage from Sibron:

The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of 180-a “on its face.” We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U.S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U.S. 108 (1964); Giordenello v. United States, 357 U.S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to [392 U.S. 40, 60] embody the safeguards demanded by the Fourth and Fourteenth Amendments.

Section 180-a, unlike 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to “stop” people, “demand” explanations of them and “search [them] for dangerous weapon[s]” in certain circumstances upon “reasonable suspicion” that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. 20 New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U.S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure “is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.” Cooper v. California, 386 U.S. 58, 61 (1967).

Accordingly, we make no pronouncement on the facial constitutionality of 180-a.

Sibron explains why there is relatively little law on Article III standing to bring Fourth Amendment facial challenges to statutes. Facial challenges are generally not allowed in the first place — at least unless the case challenges a regime of issuing warrants — so we haven’t seen many battles over Article III standing to raise challenges that can’t go forward anyway. Instead, Fourth Amendment law has focused extensively on “standing” to bring as-applied challenges, which the Supreme Court in Rakas v. Illinois tells us simply folds back on the Fourth Amendment question of whether the government conduct violated the plaintiff’s own reasonable expectation of privacy.

A few readers have flagged a new district court decision, Clements-Jeffrey v. City of Springfield, that raises an interesting Fourth Amendment question: When does a person have Fourth Amendment rights in the contents of a stolen computer? A few decisions have held that a person doesn’t have Fourth Amendment rights in the contents of a stolen computer when they know the computer was stolen: That seems correct to me, as the Fourth Amendment requires some legitimate relationship between the person and the space searched before allowing the person to have Fourth Amendment rights there. See, e.g., Minnesota v. Carter. The trickier question raised in Clements-Jeffrey is what result if the person didn’t know the laptop was stolen. Put another way, what is the mental state required to retain Fourth Amendment rights in stolen property?

A bit about the facts. The plaintiff in this case is a 52-year old substitute teacher who bought a laptop for $60 from a 9th grader at her school. She used the computer to communicate with her long-distance boyfriend, and exchanged sexually explicit communications with him. Unbeknownst to her, the laptop had surveillance software installed on it and monitored her private communications. It turns out that the computer had originally been purchased by a school district, which had installed the surveillance software to help locate the laptop if it was lost or stolen. The computer had been stolen, and then sold eventually for $40 at a bus station to the 9th grader who then sold the laptop for $60 to the teacher. The school then had the company that ran the surveillance tool fire it up and intercept the plaintiff’s communications, which it turned out were with her boyfriend and involved some rather compromising images. She sued, alleging Fourth Amendment and statutory claims.

There’s a lot happening in the District Court decision, but I want to focus on just one question: Whether the plaintiff retained Fourth Amendment rights in the laptop that turned out to be stolen. The district court decision leaves a bit unclear as to whether the parties actually disagreed on the legal test, but the district court judges appears to assume that the proper test is whether the plaintiff knew or should have known the laptop was stolen:

The parties . . .vehemently disagree about whether Plaintiffs’ subjective expectation of privacy was objectively reasonable. Although this is a question of law to be determined by the Court, see Welliver, 976 F.2d at 1151, in this particular case, its resolution turns on a question of fact-whether Plaintiffs knew or should have known that the laptop was stolen.

As the Tenth Circuit Court of Appeals has explained, “[b]ecause expectations of privacy derive in part from the right to exclude others from the property in question, lawful possession is an important consideration in determining whether a defendant had a legitimate expectation in the area searched.” United States v. Lyons, 992 F.2d 1029, 1031 (10th Cir.1993).

An individual who knowingly possesses stolen property does not have a legitimate expectation of privacy in it. See United States v. Tropiano, 50 F.3d 157, 161 (2d Cir.1995) (“we think it obvious that a defendant who knowingly possesses a stolen car has no legitimate expectation of privacy in the car”); United States v. Hensel, 672 F.2d 578, 579 (6th Cir.1982) (holding that defendant who knowingly possessed a stolen truck had no legitimate expectation of privacy and therefore lacked standing to challenge its search). In a similar vein, the Ninth Circuit has held that one who obtains a laptop by fraudulent means lacks a reasonable expectation of privacy in the contents of the hard drive. See United States v. Caymen, 404 F.3d 1196, 1201 (9th Cir.2005).

Defendants argue that because Plaintiffs knew or should have known that the laptop computer being used by Clements–Jeffrey was stolen, Plaintiffs had no objectively reasonable expectation of privacy in their Internet communications. Plaintiffs, however, deny that they knew or should have known that the laptop was stolen. This creates a question of fact that must be resolved by a jury.

My own reaction is to step back and question whether the plaintiff’s Fourth Amendment rights are actually lost if she didn’t know the laptop was stolen but merely should have known that. The question is, what’s the required mens rea for whether a person has a reasonable expectation of privacy? The issue hasn’t come up much because people usually know their relationship to property to establish Fourth Amendment protection in it. Your house is your house, and you probably know the facts relevant to whether you have legitimate rights to it. Computers are easily movable, however, so it’s more common not to know if a computer was at one point stolen. The “should have known” standard used by the district court essentially applies a mens rea of negligence as to the element of the laptop being stolen. A person who is negligent as to whether property is stolen has no Fourth Amendment rights in that property if it turns out it was stolen. Off the top of my head, I don’t know any cases on this specific question. (I would guess some have come up with stolen cars. But that’s just a guess.)

As a normative matter, I would think a higher mens rea is more appropriate to whether a person has a reasonable expectation of privacy in property that they actually believe is theirs. A person who has a genuine but unreasonable belief that property is properly theirs should have a reasonable expectation of privacy in it. Why? Mostly because I can’t see why a person’s appreciation of the risks that something out there might defeat their claim of right to property should eliminate those rights. The Fourth Amendment properly protects the sharp and the clueless alike. A person retains Fourth Amendment rights in their home even if they live in a bad neighborhood and don’t lock the front door. Protecting private spaces in such a weak way may be unwise, but the Fourth Amendment protection has never hinged on such distinctions. That’s my gut reaction, at least.

I have posted a new draft essay, Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States, which is forthcoming as a chapter in the Cato Supreme Court Review. Here’s the abstract:

This essay considers how the Supreme Court’s recent limits on remedies for Fourth Amendment violations threaten the future development of Fourth Amendment law. It focuses on two decisions from the October 2010 Supreme Court Term: Camreta v. Greene, 131 S.Ct. 2020 (2011), and Davis v. United States, 131 S.Ct. 2419 (2011). Both Camreta and Davis reflect an optimistic view that Fourth Amendment remedies can be limited without substantially inhibiting the proper development of the law. The essay suggests that development of Fourth Amendment law requires more robust remedies to create cases and controversies and provide incentives to litigate claims. It concludes by considering how the Supreme Court might best foster law-development in a regime of limited Fourth Amendment remedies.

It’s difficult to offer an insightful scholarly analysis of a case you argued and lost, especially so soon after the case was handed down. I’ll leave to the reader whether I succeeded or failed at the task.

Imagine the police have an arrest warrant for a crime suspect, and they want to find the suspect to arrest him. They happen to know the suspect’s cell phone number, so they want to go to the phone company and have the phone company tell the police the location of the suspect’s phone. The phone company refuses to let the police get that information without a warrant, so the police police go to a judge and apply for a search warrant based on the probable cause to believe that the location of the phone will help them execute the arrest warrant. Here’s the interesting question: Should the judge sign the warrant application and issue the warrant? Or should the judge deny the warrant application?

On August 3, Magistrate Judge Susan K. Gauvey issued a fascinating opinion on this novel question: IN THE MATTER OF AN APPLICATION OF THE UNITED STATES OF AMERICA FOR AN ORDER AUTHORIZING DISCLOSURE OF LOCATION INFORMATION OF A SPECIFIED WIRELESS TELEPHONE, 2011 U.S. Dist. LEXIS 85638 (D.Md. 2011). Her answer: The Judge must deny the warrant application, as location information is broadly protected by the Fourth Amendment and government cannot use warrants to find out the location of people who have warrants out for their arrest. The timing of the case is extremely unusual, as it seems the case is moot and this is only an advisory opinion. If I understand the timing, Magistrate Judge Gauvey denied the application over a year ago, and the government was able to arrest the suspect some other way in the meantime. Judge Gauvey decided to hand down an opinion on the legal issue anyway, appointed defense counsel to argue for defense interests, and now, a year later, has handed down the opinion on why she denied that application back in 2010.

Still, the opinion is obviously intended to be important: It goes on for 172 pages in the slip opinion, or 60 pages single-spaced, and it reaches out to weigh in on a lot of big issues. I also note that her opinion includes excerpts from my recent House Judiciary Committee testimony (see pages 94-96 and 106 of the slip op). So I thought I would blog some thoughts on the opinion. I’ll start with Judge Gauvey’s opinion, then explain why I think it’s wrong, and then turn to a few broader thoughts on the role of magistrate judges in surveillance law.

I. Judge Gauvey’s Analysis

Here’s the basic reasoning of the opinion. First Judge Gauvey creates what a appears to be a new distinction in Fourth Amendment law: a distinction between (a) Fourth Amendment rights in location at a given time, and (b) Fourth Amendment rights in movement over time. According to Judge Gauvey, individuals have a reasonable expectation of privacy in both. There is a reasonable expectation of privacy as to a person’s location if a person cannot be visually observed in that same way. And there is a reasonable expectation of privacy in movements, which Judge Gauvey seems to be taking from the DC Circuit’s Maynard/Jones “mosaic theory” case (which the Supreme Court recently agreed to hear). Judge Gauvey then reasons that if everyone has this Fourth Amendment right, people who have warrants out for their arrest have this right to privacy, too. For that reason, the information held by the phone company as to the location of the phone user is protected by the Fourth Amendment.

Judge Gauvey then considers whether the Fourth Amendment allows a warrant to be issued based on probable cause that the information will help execute an arrest warrant. She concludes the answer is no: A Fourth Amendment warrant requires probable cause that evidence or contraband is located in the place to be searched or that a person who committed a crime is in the place to be searched. Mere probable cause to believe that location information would help the police execute a warrant is not enough under the Fourth Amendment. Judge Gauvey speculates that the Supreme Court would probably allow such warrants if the issue reached the Supreme Court, but she concludes that she “will not take that leap in the absence of any direct precedent or sufficient doctrinal foundation, especially in the face of considerable legislative and public concern and discussion about the invasion of privacy that this new and evolving location technology permits.” Judge Gauvey seems particularly unwilling to issue the warrant in light of all the hearings Congress has had over the past year on how the statutory surveillance law applies to cell-site location: “Against this backdrop of intense congressional inquiry and public concern,” she writes, it is especially inappropriate to sanction an expansion of law enforcement acquisition of location data . . . ”

II. Why I Think Judge Gauvey’s Decision is Wrong

My own view is that Judge Gauvey is pretty clearly wrong. Most fundamentally, I don’t think location information of phones is protected by the Fourth Amendment under Smith v. Maryland, for all the reasons I have explained at length. Part of the problem is that the Fourth Amendment does not deal in abstractions, with categories such as the right to privacy in “location” or right to privacy in “movement.” The Fourth Amendment is much more granular: The relevant question is whether the particular data stored in a particular place on a particular server is protected by the Fourth Amendment, and if so, who is it who has those rights and under what circumstances can that particular information be accessed and disclosed. Given that, Judge Gauvey’s abstract categories produce more heat than light. It doesn’t help that Judge Gauvey relies significantly on the “mosaic theory” opinion that the Supreme Court recently agreed to review.

Assuming Judge Gauvey is right that location information is in fact protected by the Fourth Amendment, then the next question is when the government can obtain a warrant to order the release of that information. This is actually a very interesting question of Fourth Amendment law. Notably, Payton v. New York concluded that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within,” and it seems a it strange that the arrest warrant allows the police to break into a suspect’s home but yet there is no ability to even get a warrant to find out the location of the suspect’s phone. Judge Gauvey seems to think that it would require a novel extension of Payton to say that Payton allows a warrant for location information to find the suspect, but I think she has the novelty question a bit backwards: It’s a novel application of the Fourth Amendment to say that it extends to location information, and that novelty sets up the new question of how Payton applies.

What’s the answer? I think this part of the opinion is actually quite difficult, but I would tentatively think that Steagald v. United States is fairly read to allow a Fourth Amendment warrant in this situation. Steagald considered what the police must do when the police think a suspect is in someone else’s home, and they want to execute an arrest warrant of the suspect there. Steagald ruled that the police must obtain a search warrant to do that: They must obtain a warrant to search the home for the person inside to safeguard the Fourth Amendment interests of the people who live there. The basic idea is that the search warrant based on probable cause to think that the object of the arrest warrant will be there makes the search of the place reasonable. The Steagald court was not focused on whether the person in the house was “evidence of crime,” but rather focused on the government’s need to justify the intrusion. Although it’s not an easy question, I think the same reasoning would justify a search of the phone company’s computer for location information of the suspect’s whereabouts to execute the warrant. But as I said, it’s a tricky question — one set up by the novelty of concluding that location information is protected by the Fourth Amendment.

III. A Few Concluding Thoughts

I think this opinion is interesting in two main ways. First, it’s yet another example of the recent practice of magistrate judges using their authority to grant or deny court order applications to hand down very broad opinions on novel issues of how the Fourth Amendment applies to computers and new technologies. I’m generally critical of this development, but it bodes well for those who strongly want the courts to be more civil libertarian in the surveillance law area. Because most judges will grant the applications without an opinion, but will be more interested in explaining why they denied an application, and because any judge can write an opinion at any time on why they are granting or denying the application, this procedure lets a few magistrate judges with very strong views (think Orenstein in New York or Smith in Texas) write opinions on novel questions when they rule on the application.

Although magistrate judges aren’t Article III judges, the magistrates can still submit their opinions to the F.Supp.2d and get them published. As as we see in this case, they can order briefing and submit the opinion over a year after the case is moot. Over time, these magistrate judge opinions are having an impact on the law even though they arise from only a small handful of non-Article III judges in quite unusual procedural contexts. (On that note, I see that over at the Robing Room there is this lawyer’s evaluation of Judge Gauvey form 2006: “She is extremely ambitious and fearless in using the publication of her rulings as a means to raise her profile.”)

Second, this issue is worth keeping in mind for the pending Supreme Court litigation in United States v. Jones, the GPS/mosaic theory case. When the Fourth Amendment mostly protects only invading private spaces, the scope of the warrant authority is reasonably clear: The Fourth Amendment warrant can be obtained to invade the private space for evidence or the suspect. On the other hand, if the Fourth Amendment is read to extend to location information even in public places, then that extension begins to raise new questions of when a warrant can be obtained to access that location information where it has been generated. This is also worth noting for the statutory debate over location information in Congress: As I noted in the passage Judge Gauvey excerpts from my House testimony, probable cause of what is an essential question in applying the probable cause standard.

The Third Circuit, sitting en banc, has split 8-6 on this in today’s United States v. Mitchell; the majority concludes that the law authorizing this practice does not violate the Fourth Amendment. The Ninth Circuit will soon consider en banc a related question, which is whether the government may collect DNA as a condition of releasing someone on bail.

Note that this has to do with testing in the absence of probable cause (or even a reasonable suspicion) that the DNA would be evidence related to a crime. Thanks to How Appealing for the pointer.

From Electronic Privacy Information Center v. United States Department of Homeland Security (D.C. Cir., decided this morning):

The Electronic Privacy Information Center (EPIC) and two individuals petition for review of a decision by the Transportation Security Administration to screen airline passengers by using advanced imaging technology instead of magnetometers. They argue this use of AIT violates various federal statutes and the Fourth Amendment to the Constitution of the United States and, in any event, should have been the subject of notice-andcomment rulemaking before being adopted. Although we are not persuaded by any of the statutory or constitutional arguments against the rule, we agree the TSA has not justified its failure to issue notice and solicit comments. We therefore grant the petition in part….

To sum up, first, we grant the petition for review insofar as it claims the TSA has not justified its failure to initiate notice-and-comment rulemaking before announcing it would use AIT scanners for primary screening. None of the exceptions urged by the TSA justifies its failure to give notice of and receive comment upon such a rule, which is legislative and not merely interpretive, procedural, or a general statement of policy. Second, we deny the petition with respect to the petitioners’ statutory arguments and their claim under the Fourth Amendment, except their claim under the [Religious Freedom Restoration Act], which we dismiss for lack of standing. Finally, due to the obvious need for the TSA to continue its airport security operations without interruption, we remand the rule to the TSA but do not vacate it, and instruct the agency promptly to proceed in a manner consistent with this opinion.

Thanks to Tom Ault for the pointer.

UPDATE: I see Orin is working on a post about the Fourth Amendment issues, which I expect will be up very shortly. Please limit comments in this post to the administrative law questions and the other non-Fourth-Amendment questions. Please save the Fourth Amendment comments for Orin’s post. Thanks!

The Supreme Court recently granted certiorari in Millender v. Los Angeles. Here are the background facts: Bowen shoots at his ex-girlfriend with a sawed-off shotgun. The police obtain a search warrant for the home of Bowen’s 73-year-old former foster mother. The warrant application does not disclose that Bowen last lived with his foster mother 15 years ago. (The girlfriend suggested to the police that Bowen might be hiding there.) The warrant authorizes the seizure of all firearms on the premises, not merely the particular gun which had been used in the crime against the girlfriend.

The police executed a 5 a.m. dynamic entry, and in the course of their search, seize a firearm which is lawfully owned by the 73-year-old woman, Augusta Millender. She sues, and the 9th Circuit en banc rules that the warrant was objectively unconstitutional. The officer who procured the warrant (and Los Angeles, by respondeat superior) are not entitled to qualified immunity, because the warrant to seize all firearms was so clearly unconstitutional, based on settled law.

In the certiorari grant, the Questions Presented are:

This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344-45 (1986). The Questions Presented are: 1. Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search? 2. Should the Malley/Leon standards be reconsidered or clarified in light of lower courts’ inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

The phrasing of the Questions Presented further suggest that attorneys for Respondents have an uphill battle. The Supreme Court docket page is here; the full history of the case in the district court and the Ninth Circuit, with full text of many of the relevant documents, is available at the website of California attorney Chuck Michel. Michel is, in my opinion, one of the top two firearms law lawyers in California, the other being Don Kilmer.

In conjunction with Stephen Halbrook, Michel filed an amicus brief in Millender, on behalf of the National Rifle Association and the California Rifle and Pistol Association Foundation. The brief explains how the Fourth Amendment’s prohibition on general warrants is closely entwined with the right to arms; for example, the 1662 gun ban of the wicked Stuart king Charles II was enforced by general warrants.

The Questions Presented seem to presume the unconstitutionality of the general warrant, with the only issue before the Court being qualified immunity. The Halbrook/Michel argument on qualified immunity points out that

Detective Messerschmidt knew that the only firearm involved in the crime was a black, pistol-gripped, short barreled shotgun.  He nonetheless drafted a general warrant authorizing search and seizure of all firearms and firearm parts from the home of an elderly woman, her daughter, and her grandson, knowing that the suspect (Bowen) did not even live in that home.  Messerschmidt cannot now rely on the defense that he persuaded others up the chain to approve his general warrant.

…

It bears repeating that the affidavit failed to disclose that the residence was that of an elderly lady and her relatives, not that of the suspect.

Although Los Angeles argues that the unconstitutionality of the warrant was not clearly established at the time the warrant was executed, Halbrook and Michel point to:

Groh v. Ramirez, 540 U.S. 551 (2004), aff’g Ramirez v. Butte-Silver Bow County, 298 F.3d 1022 (9 th Cir. 2002), involved a general warrant obtained to search for unregistered firearms, but the warrant contained no list of firearms to seize.  Id. at 554.  A list of firearms was included in the affidavit, but not attached to the warrant.  Id.  Only lawful firearms were found.  Id. at 555.  The homeowners later filed a civil rights action for damages.  Id.  The Supreme Court upheld the Ninth Circuit’s conclusion in Groh that the search was unlawful and that the agent who secured the warrant and led the search could not rely on the defense of qualified immunity.  Id. at 563-566.

Moreover,

In Groh, the law was clearly established in the very text of the Fourth Amendment.  Case law condemning general warrants in England dates back to at least 1765 in Entick, and in the United States, to 1886 in Boyd.  The general warrant here–to search for all firearms and related items, when only a black, pistol-gripped, short-barreled shotgun was at issue, and it had little or no connection to the house to be searched–clearly violated the Fourth Amendment, would be known to do so by any competent officer, and was not sanctified by being rubber stamped by higher ups.

Michel has announced that NRA and CRPAF will file an amicus brief in the Supreme Court, in part to explain to the Court the problem of law enforcement officers seizing large numbers of lawfully-possessed firearms in order to boost gun seizure statistics.

I hope that at some point Orin Kerr will be able to provide his insights on Millender.

Judge Kozinski and Stephanie Grace have a short essay posted online arguing that the Fourth Amendment is “dead” thanks to the third-party doctrine — the rule that a person loses Fourth Amendment protection in information knowingly disclosed to third parties. Their basic argument has been made many times before in the law reviews, but I don’t think it’s right. I wrote an article in 2009 explaining why don’t find it persuasive: The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009). I’m worried about a lot of aspects of current Fourth Amendment law, but this strikes me as one area in which the Supreme Court basically has it right.

According to this morning’s order list, the Supreme Court has agreed to review United States v. Jones, the DC Circuit’s “mosaic theory” case on whether and when use of a GPS device installed on a car is a Fourth Amendment search. The Court added a question, as well:

“Whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.”

I’m glad the Court granted in this case, and I’m also also glad they added the question on installing the device. The installation question was the piece of the puzzle that was strangely left out of the Knotts case thirty years ago (see the * footnote), and as I blogged back when Judge Kavanaugh flagged the issue in his dissent from denial of rehearing (see comment [b]), I think its a difficult and important question. (Lower courts have uniformly held that installing the device is not a search or seizure, but I’ve never found their reasoning very persuasive.)

The fact that the Court added the question about installing the device adds a really interesting wrinkle to the Jones. case. Let’s simplify a tad and assume that the only issue is whether the installation and/or use of the GPS is a search or seizure — that is, let’s assume that if there is a search or seizure, then it’s unreasonable because there was no valid warrant. If that’s the case, then the government needs five votes agreeing with it on three different issues: (1) Installation of the GPS is not a search or seizure; (2) Initial use is not a search or seizure, and (3) Long-term use is not a search or seizure.

Only question (3) implicates the rationale of the DC Circuit’s opinion, what I have called the “mosaic theory,” and it’s always been quite unlikely that the Supreme Court would adopt that theory: It’s such a radical departure from anything that has come before in Fourth Amendment law that it’s pretty hard to imagine it getting five votes. What makes the added question in Jones intriguing is that argument (1) is probably the argument most likely (if any) to swing conservative Justices to the defense side. On argument (2), Knotts/Karo has already created an established line that has worked for 30 years; I don’t know if the conservative Justices will be inclined to mess with it. But the installing of the device may give a Justice Scalia or Thomas second thoughts; the act of installing the device is the act of interfering with someone’s private property, and it likely would be a taking under Fifth Amendment principles. Given the historical connection between the Fourth Amendment and trespass law, it’s conceivable that an originalist Justice might conclude that the interference with a person’s private property without a warrant triggered by installing the device violates the Fourth Amendment even if the subsequent use does not.

With the current Court, the better bet in any Fourth Amendment case is that the Government will win. But the added question makes this a particularly fascinating case to watch.

I blogged about Messerschmidt v. Millender when the panel decision was handed down and then when the en banc decision was handed down, so I thought I’d note that the Supreme Court has just agreed to hear the question. The first question presented listed in the cert petition, which summarizes the case well, is:

Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her?

It’s possible that the Court will just decide that the officers did have qualified immunity, which is to say that the law was unsettled enough that they shouldn’t be held liable. (The Ninth Circuit had held that the warrant was so clearly invalid that they could be held liable.) But it’s possible that the Court will reconsider the underlying question, which is whether the warrant was indeed clearly invalid under the Fourth Amendment.

I blogged in March about an interesting statement respecting the denial of certiorari today in Huber v. N.J. Dep’t of Environmental Protection:

Statement of Justice Alito, with whom the Chief Justice, Justice Scalia, and Justice Thomas join, respecting the denial of certiorari.

Our cases recognize a limited exception to the Fourth Amendment’s warrant requirement for searches of businesses in “closely regulated industries.” See, e.g., New York v. Burger, 482 U. S. 691, 699–703 (1987) (internal quotation marks omitted). The thinking is that, other things being equal, the “expectation of privacy in commercial premises” is significantly less than the “expectation in an individual’s home.” Id., at 700. And where a business operates in an industry with a “long tradition of close government supervision” — liquor dealers and pawnbrokers are classic examples — the expectation of privacy becomes “particularly attenuated.” Ibid. (internal quotation marks omitted).

In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber’s backyard. No. A–5874–07T3, 2010 WL 173533, *9–*10 (Super. Ct. N. J., App. Div., Jan. 20, 2010) (per curiam). The Hubers’ residential property contains wetlands protected by a New Jersey environmental statute. See N. J. Stat. Ann. §13:9B–1 et seq. (West 2003 and Supp. 2010). According to the court below, the presence of these wetlands brought the Hubers’ yard “directly under the regulatory arm” of the State “just as much” as if the yard had been involved in a “regulated industry.” 2010 WL 173533, *10. This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment’s warrant requirement. But because this case comes to us on review of a decision by a state intermediate appellate court, I agree that today’s denial of certiorari is appropriate. See this Court’s Rule 10. It does bear mentioning, however, that “denial of certiorari does not constitute an expression of any opinion on the merits.” Boumediene v. Bush, 549 U. S. 1328, 1329 (2007) (Stevens and KENNEDY, JJ., statement respecting denial of certiorari).

I speculated that the reason the four Justices did not vote to grant certiorari (it only takes four votes to grant) is likely that, as Rule 10 suggests, the Justices rarely grant simply because of an erroneous decision of a state intermediate court of appeals; they generally wait until there is a disagreement among federal circuit courts of appeals or state supreme courts. But they are trying to signal to lawyers that this is an issue worth litigating.

In any case, Thursday the New Jersey Supreme Court agreed to hear the case itself. The court had declined to hear the case before, but the Hubers moved for reconsideration after the U.S. Supreme Court denied certiorari (with the four Justices’ concurring statement); that’s when the New Jersey Supreme Court decided to hear the case after all. Thanks to Sean Marotta for the tip.

No, says the district court in United States v. Wells, 2011 WL 2259748 (N.D. Okla. May 12, just posted on Westlaw). Here’s the situation: A Tulsa police officer is being investigated for supposedly stealing money and drugs. The FBI sets up a sting, in which an undercover officer plays a drug dealer. The officer and his colleagues show up to the motel room where the sting is happening, arrest the undercover officer, take him outside, get his consent to search the room, and then search it. In the meantime, they are videotaped and audiotaped searching the room. Their lawyers seek to exclude the videotapes, because the videotapes supposedly violated the officers’ Fourth Amendment rights.

The court doesn’t buy it. Even though guests sometimes have Fourth Amendment rights to be presumptively free of surveillance when they’re staying at a friend’s home — or in a motel — these weren’t ordinary guests:

Defendants obtained access to the room not as guests, but as law enforcement officers using the power of the state to obtain consent from the room’s occupant. Defendants cannot be considered guests, either social or commercial, of their target, the undercover officer. This is an important point under Supreme Court jurisprudence. When an individual claims an expectation of privacy in someone else’s residence, hotel room, or other premises, the Supreme Court has required that the individual demonstrate some type of societal recognition of the value of the individual’s privacy rights in that particular situation.

And beyond that,

[T]he ultimate question in any determination concerning the existence of a reasonable expectation of privacy involves a societal value judgment. This is inherent in the second prong of the expectation-of-privacy test, whether a particular expectation is one that society would accept as reasonable. There are many instances of courts refusing to recognize an expectation of privacy because to do so would contravene societal interests. See id. at 1004 (refusing to recognize an expectation of privacy in a storage shed that had been rented under a name obtained by identity theft, as that would in effect make the court a party to the fraud); see also United States v. Ward, 561 F.3d 414, 417-18 (5th Cir.2009) (escapee from prison had no reasonable expectation of privacy in his motel room; recognizing such an expectation would offer judicial encouragement to the act of escape); United States v. Caymen, 404 F.3d 1196, 1200-01 (9th Cir.2005) (defendant had no reasonable expectation of privacy in laptop he had fraudulently purchased using another’s financial information). The circumstances of this case are not such that a reasonable expectation of privacy should be recognized by society.

At oral argument and in subsequent briefing Defendants emphasized the fact that they had obtained exclusive dominion and control over the motel room, which is one factor discussed in expectation-of-privacy cases. However, the only reason Defendants were able to obtain such exclusive dominion and control was their status as law enforcement officers.

Defendants and/or other officers detained the undercover officer and kept him out of the room for a number of minutes after obtaining consent to search. Both the detention of the undercover officer outside the room, and the ability to obtain consent to search, were made possible only because Defendants and the other police officers were law enforcement officers carrying out the authority of the state.

It would be incongruous to allow police officers to use their authority to obtain exclusive control of someone else’s premises, and then allow them to be protected from governmental scrutiny, clandestine or otherwise, of their activities while they exercise such state-authority-derived exclusive control. Police officers are public officials and are thus expected to carry out their duties openly and subject to the reasonable scrutiny of the citizens they serve. [Footnote: Several courts have recognized that citizens have a First Amendment right to videotape officers who are performing their duties in a public location, as long as the citizen does not interfere in those duties. See, e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000); Robinson v. Fetterman, 378 F.Supp.2d 534, 541 (E.D.Pa.2005).] This should be especially true where, as here, the officers have divested a citizen of his rightful control over certain premises, in order to conduct their state-authorized activities.

Put another way, the purpose of the Fourth Amendment is to shield citizens from overreaching by government officials. If law enforcement officers are granted a reasonable expectation of privacy while they are carrying out searches of citizens’ property, and are thus not subject to surreptitious oversight, such overreaching would be encouraged, or at least protected. As a result, all manner of Fourth Amendment violations could be committed without repercussions for the law enforcement officers.

This case in fact is a good example. Defendants are accused of planning to steal money from a private citizen while they carried out a search of that citizen’s premises. No expectation of privacy should be recognized that would allow Defendants, or any other law enforcement officers, to carry out such alleged activities in secret. Instead, while exercising the authority granted them by the state to enter other persons’ premises, officers should expect to be monitored to ensure they use this great power in a manner that strictly comports with the requirements of the Fourth Amendment. In sum, the Court can conceive of no constitutional or societal interest that would be served by allowing Defendants to claim a reasonable expectation of privacy in the motel room rented by the undercover officer….

My friend Jennifer Granick points me to an interesting new case, Hubbard v. Myspace (S.D.N.Y. June 1, 2011), that touches on a fascinating Fourth Amendment question: What are the territorial limits of search warrants for Fourth Amendment purposes? To be clear, the Hubbard case itself involved a statutory challenge, not a constitutional one. The plaintiff sued MySpace for complying in California with a state warrant issued in Georgia that was faxed to MySpace in California on the ground tat the Stored Communications Act, 18 U.S.C. 2703, did not allow MySpace to comply with the out-of-state warrant. As a statutory claim, the argument was pretty clearly incorrect. But at the end of his opinion (p.11) Judge Kaplan touches on a really interesting issue: What about the Fourth Amendment?

Specifically, the interesting issue is this: If the Fourth Amendment imposes a warrant requirement on government access to an e-mail account, which I think it does and the Sixth Circuit has expressly so held, is the warrant requirement satisfied by an out-of-state warrant from a jurisdiction far away with no authority to actually compel compliance with the warrant? Or is the warrant requirement only satisfied by a warrant issued locally, or at least in the same state or federal district? This issue generally doesn’t come up in traditional physical investigations because the police will get a local warrant to physically search a local location, and arrests generally don’t require warrants. But warrants for e-mail accounts are unusual: The police obtain the warrant and fax it to the ISP, and the Stored Communications Act contemplates out of state warrants. ISPs usually don’t have to comply with out of state warrants, as they are out of state and not binding on them: But the question I’m interested in here is, does the out of state warrant satisfy the warrant requirement?

I would think the best answer is that the warrant requirement does not have a territorial limit: For Fourth Amendment purposes, the warrant requirement is satisfied so long as a neutral and detached magistrate somewhere has found probable cause, established particularity, and signed the warrant authorizing the disclosure. I think that for a few reasons. First, the Eighth Circuit has expressly approved of the constitutionality of an out-of-state e-mail warrant in one case, United States v. Bach, which involved a Minnesota state warrant for an e-mail account that was faxed to Yahoo in California. Although Bach did not discuss the extraterritorial nature of the warrant, the approval of the facts of that case hints that the extraterritorial nature of the warrant doesn’t matter. Second, I think the territorial limits of courts to issue warrants is at least arguably the kind of statutory limit on state power that the Supreme Court has said is irrelevant to Fourth Amendment reasonableness in Virginia v. Moore, 128 S.Ct. 1598 (2008). Third, cases from the wiretapping context have held that judges in one district can authorize intercepts in other districts. See, e.g., United States v. Ramirez, 112 F.3d 849 (7th Cir. 1997) (Posner, J.)

Finally, if warrants do have territorial limits for purposes of the warrant clause, we need a theory for what those limits are, and figuring that out is actually kind of tricky. For example, imagine the rule is that the warrant requirement is satisfied only if the issuing judge’s power to issue warrants includes that physical location under the statutory warrant rules. That would mean that whether the warrant requirement is satisfied is only a matter of legislative grace, which seems arbitrary: Fiddling with the statutes would change the constitutionality of the search. Alternatively, you might try to argue that the territoriality is state by state, such that each magistrate has some implicit power to issue warrants in the state that authorizes the judge’s commission (or perhaps nationwide in the case of federal warrants). That’s a theory, but I don’t think it has much in the way of a constitutional basis. So putting the pieces together, I would say that the Fourth Amendment warrant requirement is satisfied by a warrant being issued somewhere, independently of whether it was issued in a particular state or district.

Based on an initial read, I find today’s decision in Camreta v. Greene quite puzzling; to my mind, the dissent has the much better of the argument. In Camreta, the Court agreed to review a decision of the Ninth Circuit in which the Ninth Circuit rejected a Fourth Amendment civil suit filed against government officials. The Ninth Circuit’s ruling had two steps: first, it ruled that the government practice violated the Fourth Amendment; and second, it ruled that the government officials were entitled to qualified immunity. The winning party below (the government) then sought review of the first step (the Fourth Amendment ruling) which had no impact on the outcome of the case. One of the questions in the case was whether a winning party has Article III standing to seek review of adverse part of an opinion in a decision ultimately in its favor.

In today’s majority opinion by Justice Kagan, the Court rules that the case was moot for other reasons, but then goes on to conclude anyway that yes, a winning party has standing to seek Supreme Court review of adverse language in some cases. Specifically, as is the case here, there is Article III standing when the “immunized [government] officials seek to challenge a determination that their conduct violated the Constitution” and the government “regularly engages in the challenged conduct.” In effect, there is Article III standing so long as the litigants really have a good reason to care about the outcome in light of the future of the institutions that they represent and who they are:

If the official regularly engages in that conduct as part of his job (as Camreta does), he suffers injury caused by the adverse constitutional ruling. So long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action. Only by overturning the ruling on appeal can the official gain clearance to engage in the conduct in the future. He thus can demonstrate, as we demand, injury, causation, and redressability. And conversely, if the person who initially brought the suit may again be subject to the challenged conduct, she has a stake in preserving the court’s holding. Only if the ruling remains good law will she have ongoing protection from the practice.

It seems to me that if you take this argument seriously, it signals a pretty significant shift in standing doctrine. It’s a sort of holistic approach to standing: You ask not whether a ruling would change the outcome of that case, but whether the litigants have a good reason to care about the issue they want litigated. I suppose it’s appropriate that this ruling comes in a case ultimately decided on mootness grounds: If you’re going to say that there is standing to challenge language in a ruling ultimately decided the other way on other grounds, there is no more appropriate place to do it than through language in a ruling ultimately decided the other way on other grounds.

I find Justice Kennedy’s dissent (joined by Justice Thomas) persuasive:

The rule against hearing appeals or accepting petitions for certiorari by prevailing parties is related to the Article III prohibition against issuing advisory opinions. This principle underlies, for example, the settled rule against hearing cases involving a disputed judgment based on grounds of state law. As Justice Jackson explained for the Court: “[O]ur power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.” Herb v. Pitcairn, 324 U. S. 117, 125– 126 (1945). This point has been repeated with force and clarity. See, e.g., Michigan v. Long, 463 U. S. 1032, 1041– 1042 (1983). The “‘judicial Power’ is one to render dispositive judgments,” not advisory opinions. Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 219 (1995).
. . .
When an officer is sued for taking an extraordinary action, such as using excessive force during a high-speed car chase, there is little possibility that a constitutional decision on the merits will again influence that officer’s conduct. The officer, like petitioner Alford or the petitioner in Bunting, would have no interest in litigating the merits in the Court of Appeals and, under the Court’s rule, would seem unable to obtain review of a merits ruling by petitioning for certiorari. This problem will arise with great frequency in qualified immunity cases. Once again, the decision today allows plaintiffs to obtain binding constitutional determinations on the merits that lie beyond this Court’s jurisdiction to review.

Looking down the road, this decision could have interesting implications for the standing in surveillance cases. Consider the Second Circuit’s recent decision in Amnesty International v. Clapper that held — very much cutting across the grain of existing law — that a group of journalists and activists have Article III standing to challenge recent amendments to the Foreign Intelligence Surveillance Act because they reasonably spent money to avoid the surveillance that they fear (but don’t know) is occurring. My post on Clapper is here. DOJ recently filed a petition for rehearing in that case, and if rehearing is denied, may seek Supreme Court review. Before today, I would have thought that Clapper was a likely reversal at the Supreme Court. But off the top of my head, I would think the new decision in Camreta v. Greene significantly supports a claim of standing in Clapper. After all, it’s a lawsuit against government officials brought by people who really care about the outcome in which the goal is to “gain clearance” as to what the law is. There are ways of distinguishing the two cases, but I would think Camreta now lends some significant support to the Clapper suit.

Under the automobile exception to the Fourth Amendment, the police can search a car without a warrant if they have probable cause to believe there is contraband inside it. And under Illinois v. Caballes, the use of a drug-sniffing dog to alert for the presence of drugs in a car is not a Fourth Amendment search. As a result, the police often bring out the dogs to a traffic stop and see if the dog alerts: Under the Fourth Amendment, the police can search the car if the dog’s positive alert amounts to probable cause. But this raises a question: Just how well-trained does a dog need to be before its alert will trigger probable cause? And how do you know how reliable the dog is? In just the last week, I’ve noticed an interesting split emerge on the question.

First, last Friday, the Tenth Circuit adopted the view that an up-to-date certification of the dog’s prowess at finding drugs is enough to satisfy the requisite level of reliability, at least if the certifying authority isn’t challenged. The case is United States v. Ludwig (Gorsuch, J., joined by Judge Murphy and Judge Tymkovich). From the opinion:

[I]t surely goes without saying that a drug dog’s alert establishes probable cause only if that dog is reliable. See id. at 1283. But none of this means we mount a full-scale statistical inquisition into each dog’s history. Instead, courts typically rely on the dog’s certification as proof of its reliability. See id.; United States v. Kennedy, 131 F.3d 1371, 1378 (10th Cir.1997) (“[W]ith a canine, the reliability should come from the fact that the dog is trained and annually certified to perform a physical skill.”) (quotation omitted). After all, it is safe to assume that canine professionals are better equipped than judges to say whether an individual dog is up to snuff. And beyond this, a dog’s credentials provide a bright-line rule for when officers may rely on the dog’s alerts—a far improvement over requiring them to guess whether the dog’s performance will survive judicial scrutiny after the fact. Of course, if a credentialing organization proved to be a sham, its certification would no longer serve as proof of reliability. But the judicial task, we hold, is so limited: to assessing the reliability of the credentialing organization, not individual dogs. And in this case there is no suggestion that the California Narcotic Canine Association, the organization that credentialed the drug dog in this case, is all smoke and mirrors. [FN: This is not to say that a dog’s alerts are necessarily unreliable just because the dog lacks an acceptable certification. An uncertified dog’s accuracy could still, in theory at least, be established by examining its training history and record for reliability. Our point is that this is a needless exercise when, as here, the dog has been certified by an organization whose bona fides are unchallenged.]

The Tenth Circuit also noted that while probable cause isn’t and even shouldn’t be a numerical concept — citing some dubious scholarship along the way — even if probable cause were to be treated as a numerical concept, the evidence in that case was enough that the dog was reliable:

[T]he dog’s records—spanning some 200 pages in the record and covering 7 years’ worth of data—reveal that its alerts have identified a seizable quantity of drugs . . . 58% of the time. . . . While we hesitate to get into the business of affixing figures on probable cause, if we were pushed to do so we would hold this to be enough. After all, probable cause doesn’t require an officer’s suspicion about the presence of contraband to be “more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983); United States v. Padilla, 819 F.2d 952, 962 (10th Cir. 1987); see also United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (“[T]he requisite ‘fair probability’ is something more than a bare suspicion, but need not reach the fifty percent mark.”) . . . .

Contrast the Tenth Circuit’s analysis with a new opinion of the Florida Supreme Court, handed down last Thursday, Harris v. State. Harris specifically rejects the view that an up-to-date certification of the dog is enough:

[W]e hold that evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog‘s reliability for purposes of determining probable cause— especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.

Accordingly, we conclude that to meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability in being able to detect the presence of illegal substances within the vehicle. To adopt the contrary view that the burden is on the defendant to present evidence of the factors other than certification and training in order to demonstrate that the dog is unreliable would be contrary to the well-established proposition that the burden is on the State to establish probable cause for a warrantless search. In addition, since all of the records and evidence are in the possession of the State, to shift the burden to the defendant to produce evidence of the dog‘s unreliability is unwarranted and unduly burdensome.

[T]he fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person. We first note that there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs. . . .

In the absence of a uniform standard, the reliability of the dog cannot be established by demonstrating only that a canine is trained and certified. “[S]imply characterizing a dog a ‘trained‘ an ‘certified‘ imparts scant information about what the dog has been conditioned to do or not to do, or how successfully.” Matheson, 870 So. 2d at 14. In other words, whether a dog has been sufficiently trained and certified must be evaluated on a case-by-case basis. . . .

[A] necessary part of the totality of the circumstances analysis in a given case regarding the dog‘s reliability is an evaluation of the evidence concerning whether the dog in the past has falsely alerted, indicating that the dog is not well-trained, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors, which do not indicate that drugs are present in the vehicle. Accordingly, evidence of the dog‘s performance history in the field—and the significance of any incidents where the dog alerted without contraband being found—is part of a court‘s evaluation of the dog‘s reliability under a totality of the circumstances analysis.8 In particular, when assessing the factors bearing on the dog‘s reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found.

Is this dog going to sniff its way to the Supreme Court? Perhaps. Stay tuned.

Back in 2009, I blogged about United States v. Cotterman, a fascinating Fourth Amendment case from the District of Arizona involving a forensic search of a computer seized at the U.S./Mexico border. Ninth Circuit precedent holds that the government can search a computer at the border with no suspicion under the border search exception, just like it can search any other property. The question in Cotterman was whether the government could seize the computer, bring it to a forensic specialist 170 miles away, and have the forensic specialist search the computer there two days later. Is that still a border search? Or does the delay in time, or the change in location, mean that the border search exception doesn’t apply (or applies differently)? The District Court held that the delay in time and the moving of the computer required applying the ‘extended’ border search doctrine, which requires reasonable suspicion, instead of the traditional border search exception, which does not. As I noted here, the Government appealed but has not argued that the search was justified by reasonable suspicion. As a result, the case presents a pure legal question: Does the Fourth Amendment require reasonable suspicion in these circumstances, or is the seizure and subsequent search permitted without any cause?

In a decision released this morning, United States v. Cotterman, a divided Ninth Circuit reversed and held that the seizure and search were permitted without cause. The majority opinion by Judge Tallman, joined by Judge Rawlinson, reasons that it is clear, under Ninth Circuit precedent, that the search would have been legal if it had occurred at the border without delay. The opinion reasons that Cotterman’s expectation of privacy is what matters, and that because Cotterman’s computer was taken to be searched at the border, Cotterman’s expectation of privacy is not impacted by where the computer was taken:

[T]he Government made it abundantly clear to Cotterman that his computers and cameras were not cleared for entry into the United States and that it had retained custody of that property until it could fully allay its concerns that they contained contraband. As a result, he never regained his normal expectation of privacy in his computer because he ould only reasonably expect that it would be searched to alleviate the self-protection concerns of the sovereign. He never breathed that deep sigh of relief that follows from the realization that he had faced all the rigors of inspection and that nothing more lingered to impede his travels.

As a result, the moving of the computer after it was seized was constitutionally irrelevant:

So long as property has not been officially cleared for entry into the United States and remains in the control of the Government, any further search is simply a continuation of the original border search—the entirety of which is justified by the Government’s border search power.

The next question was how much delay is permitted. That is, for how long can the government hold a computer pursuant to the border search exception in order to search it? Because holding the computer was a seizure, the test was reasonableness: Specifically, whether the detention “was reasonably related in scope to the circumstances that justified the initial detention at the border.” In this case, it was: The Government proceeded quickly to bring the computer to an expert, the expert searched the computer pretty quickly, and worked through the weekend to get the search completed. Further, the fact that the computer was brought to the expert rather than the expert being brought to the computer was not only acceptable, but wise: “our common sense and experience inform us that the decision to transport the property to the laboratory, instead of transporting the laboratory to the property, resulted in a shorter deprivation.”

Judge Betty Fletcher dissented. She agreed that the moving of the computer was irrelevant, but argued that all time-consuming and comprehensive computer searches at the border should require reasonable suspicion. In a footnote, Judge Fletcher tried to distinguish United States v. Arnold, the Ninth Circuit precedent allowing suspicionless computer searches at the border on the ground that the prior Ninth Circuit precedent did not involve a comprehensive search that took considerable time.

My basic take is that I think the Ninth Circuit’s decision was right. As I argued in my initial post, it doesn’t make sense to say that the border search doctrine applies differently depending on where the computer is moved. Further, it seems right that the duration of the seizure should be determined by a reasonableness inquiry. And here, the government’s conduct seems very reasonable. Judge Fletcher asked the question of what reasonableness means in the setting of the border search exception, but that’s an old question, I think: I don’t see any reason to think that the reasonableness standard gives the government limitless authority, which is what Judge Fletcher seems to fear. More broadly, Judge Fletcher’s dissent seems to really want to go back and relitigate Arnold, which rejected a reasonable suspicion requirement for computer searches at the border. Given the issues raised by the Cotterman case itself, and the issues it raised, I think the majority was basically right.