Archive | Fourth Amendment

Are Thermal Imaging Devices in General Public Use Yet? (2014 Edition)

Four years ago, I had a long post on whether thermal imaging devices are in general public use, which, according to dicta in Kyllo v. United States, might enable the police to use them on a home without triggering a Fourth Amendment search. At the time, single-point infra-red temperature sensors started at about $50, and the full-camera thermal imaging devices started around $2,000.

In light of that post, I thought I would flag the introduction of the Flir One, a full-camera thermal imaging device that slips onto an iPhone 5 or 5s and will sell for $350.

Meanwhile, single-point temperature sensors are now available for only $17.99.

I’ll re-ask my questions from 2010: Can the police use these devices now without a warrant? Are either the single-point or full-camera infrared imaging devices now in “general public use”? And if they’re not in general public use now, when will they be?

Thanks to reader Brady B for the link. [...]

Continue Reading 0

En Banc Ninth Circuit Invalidates Hotel Inspection Regulation

Regular readers may recall my blog post last year on the panel decision in Patel v. City of Los Angeles, involving a facial challenge to a Los Angeles regulation requiring that LA hotels shall make hotel guest records “available . . . for inspection” by the LAPD. The 2-1 panel decision ruled that a facial challenge couldn’t succeed in these circumstances. On December 24th, the en banc court issued a new decision available here, which concluded by a 7-4 vote that a facial challenge is appropriate and that the regulation violates the Fourth Amendment rights of hotels.

The Patel case is more about a technical issue of facial vs. applied challenges than Fourth Amendment law specifically; the primary issue on which the judges disagreed was whether a facial challenge was proper. Still, for the procedure nerds out there, I figured I would offer some thoughts. [SEE UPDATE]

The challenged regulation tells all L.A. hotels that they need to collect registration information about customers with the following instructions, violations of which are a misdemeanor:

The record shall be kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent to that area. The record shall be maintained at that location on the hotel premises for a period of 90 days from and after the date of the last entry in the record and shall be made available to any officer of the Los Angeles Police Department for inspection. Whenever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.

In this case, hotel owners have sued the City of LA seeking to enjoin the enforcement of the phrase “shall be made available to any officer of the Los Angeles [...]

Continue Reading 0

A First Look at Navarette v. California: Are Stops Governed by the Rules of Terry or By Case-by-Case Reasonableness?

On January 21st, the Supreme Court will hear argument in Navarette v. California, a Fourth Amendment case on whether an officer who receives an anonymous tip regarding drunk driving must corroborate the dangerous driving before stopping the car. Reading through the briefing in the case, I was struck by the surprising argument advanced by the state of California and (to some extent) by the United States. In this post I’ll explain the argument, and why it makes Navarette a much more interesting case than it first seemed.

When the Court granted cert, I thought that the issue in Navarette was just about the standard of “reasonable suspicion,” the standard required to make a Terry stop. But the California brief takes a different approach. Instead of just asking when “reasonable suspicion” exists, California asks the Court engage in interest balancing on a case-by-case basis. In California’s view, the reasonableness of a stop isn’t based on whether Terry‘s reasonable suspicion standard has been satisfied in the abstract. Instead, California sees Terry as merely one application of reasonableness balancing, and it asks the Court to engage in interest balancing afresh by considering the nature of the crime to be investigated when assessing whether the stop was reasonable. The basic idea is that drunk driving is so serious a problem that stopping a car for suspected drunk driving requires less cause than would a stop for a less serious offense. The more serious the crime, the less suspicion is needed.

California’s approach to the Fourth Amendment is revolutionary. I have always understood the Terry standard to be transsubstantive, in the words of Bill Stuntz. The same standard or reasonable suspicion applies across all crimes, just as it does with probable cause. Switching to a case-by-case approach which factors in the seriousness [...]

Continue Reading 0

Justice Blackmun’s File on Smith v. Maryland

Smith v. Maryland and the third-party doctrine have been much in the news recently thanks to the dueling Leon/Pauley NSA opinions. In light of that, law prof Kyle Graham has posted Smith-related materials from Justice Blackmun’s papers at the Library of Congress. You can read them here. The documents include conference notes, the cert pool memo, the law clerk’s bench memo, and some internal memoranda about the opinion.

Blackmun’s law clerk on the case — the clerk who actually wrote the opinion, given how Justice Blackmun apparently worked — was Albert G. Lauber, now a tax court judge. Lauber’s bench memo to Blackmun is fascinating. It not only tracks the majority opinion, as you might expect, but in some ways it offers a clearer explanation and better justification of the reasoning of Smith than did the opinion itself. Really interesting stuff. (The cert pool memo writer in the case was a Rehnquist clerk, the late Judge Mark Kravitz.)

As I have written before, I think Smith v. Maryland was correctly decided. You can read my argument here and here in law review article form. If you want the short version, check out this 2012 debate between Greg Nojeim and me. [...]

Continue Reading 0

Senders’ Fourth Amendment Rights in E-mails Seized from the E-mail Accounts of Recipients

A recent case, United States v. Young (D. Utah, December 17, 2013) (Campbell, J.), touches on a novel, interesting, and quite important question of Fourth Amendment law: Assuming that e-mail account-holders generally have Fourth Amendment rights in the contents of their e-mails, as courts have so far held, when does a person’s Fourth Amendment rights in copies of sent e-mails lose Fourth Amendment protection?

To understand the question, consider Fourth Amendment rights in postal letters. Before a letter is sent, only the sender has rights in the letter; during transmission, both the sender and recipient have rights in the letter; and once the letter is delivered at its destination, the recipient maintains Fourth Amendment rights but the sender’s rights expires. But how do you apply this to an e-mail? By analogy, a sender loses Fourth Amendment rights in the copy of the e-mail that the recipient has downloaded to his personal computer or cell phone. But does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server after the recipient has accessed the copy? And does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server before the recipient has accessed the copy? At what point does the sender’s Fourth Amendment rights in the sent copy expire?

In Young, the government obtained e-mails from the accounts of defendants in a conspiracy case pursuant to a series of search warrants. Two defendants moved to suppress e-mails obtained from the accounts of their co-defendants, alleging that the warrants were defective. The District Court ruled that the movants had no Fourth Amendment rights in the e-mails found in their co-defendants’ accounts:

As parties to the e-mails obtained from AISC’s computers and the Internet service provider (ISP), America Online,

Continue Reading 0

Another Problem With Judge Leon’s NSA Opinion: Absolute vs. Relative Measurements and Fourth Amendment Reasonableness

The more I re-read Judge Leon’s opinion in Klayman v. Obama, the more I am struck by how many parts of the opinion strike me as strange, off-key, or just wrong. This post will focus on an aspect of the opinion that has been ignored so far: Fourth Amendment reasonableness. In particular, I hope to explain why I think Judge Leon’s approach to assessing the reasonableness of the NSA program conflicts with established Supreme Court precedent.

First, some context. According to the Supreme Court, reasonableness requires a cost/benefit analysis: “Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006). That’s the general test, and Judge Leon recognizes it. But I want to focus here on a specific issue: The methodology for analyzing the latter question, the efficacy of the government’s step.

Consider two different approaches. First, a court could make an absolute measurement. That is, the court could measure how much that step advances the government’s interest as compared to no step at all. Alternatively, a court could make a relative measurement. That is, the court could measure how much that step advances the government’s interest as compared to alternative methods that the government could conduct to try to collect the same information.

The Supreme Court cases that I am aware of have endorsed absolute measurement and rejected relative measurement. For example, in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Court considered the reasonableness of an immigration checkpoint set up along a highway. The defendants tried to argue that the checkpoint did not advance the [...]

Continue Reading 0

Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?

Here’s a thought experiment. Let’s assume that when DOJ appeals Judge Leon’s opinion in Klayman v. Obama, the DC Circuit does not reverse on the procedural issues. Instead, on appeal the DC Circuit takes precedent seriously and tries to square the NSA surveillance program with United States v. Maynard and its mosaic theory on the merits of the Fourth Amendment. If that happens, how should the court rule? That is, how should the NSA program fare under the Maynard mosaic theory?

In some sense, there is no real answer to the question. Maynard‘s mosaic theory is novel, strange, and yet also strikingly vague. Still, I thought it would be useful to imagine what issues the DC Circuit might encounter if it tries to fairly apply the Maynard precedent on appeal. There are two key issues. First, does the mosaic theory apply to the kind of data collection at issue in the NSA program? And second, if the theory applies generally, how does it apply specifically to the facts of the Klayman case?

(1) Does the Mosaic Theory Apply to the Data at Issue in the NSA Program?

The mosaic theory developed by the DC Circuit in Maynard reasoned that long-term surveillance can allow the government to collect and analyze so much information about a person that eventually the government can develop a complete picture of their lives. When that happens, a Fourth Amendment “search” is deemed to have occurred. In Maynard, the government installed a GPS device on the car that the defendant drove and monitored it for 28 days. The GPS recorded the location of the car every few seconds. On those facts, the DC Circuit concluded that a search had occurred because the GPS surveillance “reveal[ed] an intimate picture of the subject’s life that [...]

Continue Reading 0

Preliminary Thoughts on Judge Leon’s Opinion

In this post, I’ll offer a few thoughts on Judge Leon’s remarkable opinion on NSA surveillance. Unfortunately, my time was limited, so I have to offer a more brief analysis than I would normally like to do. Here are a few thoughts for now, with more to come later if time permits.

(1) Distinguishing Smith v. Maryland

Judge Leon’s first and most fundamental move is to distinguish Smith v. Maryland, the 1979 case ruling that the Fourth Amendment does not protect numbers dialed from a telephone. I found Judge Leon’s argument on this point not only unpersuasive, but quite plainly so. I realize that a district court judge can’t just announce that he thinks a Supreme Court decision was wrongly decided. But there are plausible ways to write an opinion distinguishing Smith and implausible ways to do so, and Judge Leon’s opinion struck me as a surprisingly weak effort.

Here’s why. Judge Leon says that the most important ground for distinguishing Smith is that we have a fundamentally different relationship with telephones today than existed in 1979. Today’s cell phones are not just phones, Judge Leon emphasizes. They are computers with functionality wholly apart from telephony. Today’s cell phones are maps, cameras, text messaging machines, and even lighters that can be held up at rock concerts. As a result, Judge Leon argues, Americans have an “entirely different” relationship to phones than they did in 1979. And Judge Leon therefore cannot possibly follow a decision from the pre-cell phone era.

I find this argument deeply unpersuasive. Most obviously, why does it matter that today’s phones are combined in a single device with other functions? The NSA’s program is not collecting information about the use of those other functions. It is only collecting the same information that was collected in Smith [...]

Continue Reading 0

What Happened to the Cell Phone Search Petitions?

I mentioned a while ago that the two cert petitions on cell phone searches incident-to-arrest were calendared for December 6. They have been delayed, however, as the Court asked for the lower court record in Riley, the smart phone case. We don’t know what the Justices expect to get from the record, but it’s at least possible that some of them want to know exactly what the lower court record says about what searches were conducted. As I mentioned in my initial post on Riley, the facts are somewhat murky:

The exact scope of the search in Riley isn’t entirely clear, but it seems to have been a more wide-ranging search than in Wurie. According to the lower court opinion, the officer first “looked at Riley’s cell phone, [and] he noticed all of the entries starting with the letter K were preceded by the letter C, which gang members use to signify ‘Crip Killer.’” It sounds like this was a text search through the phone, although it’s not entirely clear. Second, the officer later “looked through the phone and found some video clips” and “some photographs.” This sounds like a more extensive search through the contents of the phone.

That lack of clarity has been common in cell-phone search cases so far, I’ve noticed. Because the early cases broadly allowed warrantless cell phone searches incident to arrest, and the split is fairly recent, litigants and trial judges haven’t focused much on the factual details of what search occurred. It’s at least possible that this lack of detail might end up delaying Supreme Court intervention. But again, this is just uninformed speculation, worth exactly what you’re paying for it.

Incidentally, I wanted to note a question that I think is not implicated by the division of authority on [...]

Continue Reading 0

Voluntariness and the Law/Fact Distinction

This is a follow-up to this morning’s post on United States v. Robertson, the Fourth Circuit’s decision yesterday on the voluntariness of a consent search under the Fourth Amendment. In the comment threads, a lot of thoughtful comments raised the issue of whether voluntariness is really just a question of fact reviewed for clear error. As I noted in the original post, there were two layers of facts: The facts of what happened, and then the “fact” of whether the consent was voluntary. But as some commenters noted, it’s a little weird to think of voluntariness as just a fact. Whether consent is voluntary is a conclusion based on a legal sense of what voluntariness means. It must have at least some legal elements in it. So that raised the question, is voluntariness really just reviewed for clear error as a fact, or is it a mixed judgment of law and fact, with the “what happened” part reviewed for clear error and the “so does that amount to consent” part reviewed de novo?

In the Fourth Circuit, I found, the answer is actually somewhat mixed. If you follow what most of the cases say, it looks like the standard is just clear error all around. That is, when Fourth Circuit opinions discuss the voluntariness standard, they usually just say it is a factual issue and say clear error applies. See, e.g., United States v. Lattimore, 87 F.3d 647 (4th Cir. 1996) (“The voluntariness of consent to search is a factual question, and as a reviewing court, we must affirm the determination of the district court unless its finding is clearly erroneous.”); United States v. Wilson, 895 F.2d 168, 172 (4th Cir.1990) (per curiam) (“In reviewing a district court’s determination on consent, an appellate court must uphold the [...]

Continue Reading 0

United States v. Robertson and the Voluntariness of Consent to a Fourth Amendment Search

Yesterday the Fourth Circuit handed down an interesting Fourth Amendment decision in United States v. Robertson, involving a consent search at a bus shelter. It’s a rare published decision from the Fourth Circuit, with a divided vote, and my tentative view is that the dissent is correct.

As I understand the facts, several officers converged on the bus shelter (which I assume something like this) to try to figure out if any of the people at the shelter knew of a foot chase involving a gun that had just been reported in the area. Robertson was one of the men sitting at the bus shelter, and he was approached by Officer Welch. Welch asked Robinson, “Do you have anything illegal on you?”, but Robertson remained silent. Welch then waved Robertson toward him and said, “Do you mind if I search you?” Robertson stood up, walked two yards towards Officer Welch, turned around, and raised his hands above his head. Welch interpreted that as consent, and conducted a search. The search recovered a firearm, and that led to charges for illegal firearms possession.

At trial, Robertson argued that the search was invalid because consent was involuntary. The voluntariness of consent is a question of fact based on a totality of the circumstances that is reviewed for clear error. The district court ruled that the Robertson had voluntarily consented. In today’s decision, the Fourth Circuit ruled that this factual determination was clearly erroneous. From the majority opinion by Judge Gregory, joined by Judge Duncan, with internal citations omitted:

This case turns on the difference between voluntary consent to a request versus begrudging submission to a command. Here, Mr. Robertson’s behavior was the latter. The area around the bus shelter was dominated by police officers. There were three patrol cars and

Continue Reading 0

Randolph, Fernandez, and the Puzzle of Limiting Third-Party Consent

In Wednesday’s oral argument in Fernandez v. California, no party asked the Supreme Court to overturn Georgia v. Randolph. But the more I think about Fernandez, the more I think the issues in the case just point to the underlying problem with Randolph. In this post, I want to say a bit about why.

The core problem is that it’s very difficult to carve out exceptions from a general rule of third-party consent. Ordinarily, any person can consent to a police search of the space in which he lives, even if he shares that space with another person who may be a suspect and may not want the search to occur. All the Justices agree with that general rule. But once you take the leap and recognize the basic doctrine of third party consent, it becomes very hard to say that there is a set of circumstances in which that is not true.

It’s hard because of the nature of law enforcement. Police officers and police investigators work full time at solving crimes. Gathering evidence is their job, and that leads them to know the rules and use them to their advantage. So as soon as you recognize the usual default rule of third-party consent, you’re telling the police officers that they just need to wait until the usual default facts are present so they can then rely on the usual default rule of third-party consent. Even if some specific facts don’t allow consent, the officers can be patient. They can wait it out until the facts change. And they often can arrange the circumstances so that the facts will trigger the usual default rule.

This means that as soon as the Court declares a specific set of facts that are exempted from the usual rule [...]

Continue Reading 0

Oral Argument in Fernandez v. California: An Initial Reaction

I was at the Supreme Court this morning for the oral argument in Fernandez v. California, the Fourth Amendment case on third-party consent that I blogged about last week. I have just a few minutes now and more time later, so I will offer a few quick thoughts here and hope to offer more detailed reactions later. [UPDATE: The transcript is here.]

1) Chief Justice Roberts, Justice Kennedy, and Justice Alito were very clearly on the government’s side. In describing this case, Justice Kennedy declared, “this is not Randolph,” and he described Fernandez’s position as asking for a “vast expansion of Randolph.” Justice Alito was not on the Court when Randolph was decided, but he suggested that Randolph was not only wrong but that it should be overturned.

2) Justice Scalia (who dissented in Randolph) also seemed to be on the government’s side. Although Justice Thomas did not speak at the argument, as is custom, his dissent in Randolph suggests that he is likely to agree. If so, that’s five votes for the government from the five conservative (or conservative-ish) Justices.

3) The one Justice who was clearly on the defense side was Justice Sotomayor. Justice Sotomayor stated that “the first obligation under the Fourth Amendment is to get a warrant,” and she wondered aloud why police officers can’t get that simple message. (Perhaps because that’s not what the Supreme Court has told the police, but I digress.)

4) I think Justice Breyer was also a likely vote for the government, as he was having a hard time articulating a rule without strange implications that would give the defense a victory. Justice Breyer also wins the award for the most outdated hypothetical, involving a person who comes to a suspect’s house and gets him [...]

Continue Reading 0

Rory Little on Fernandez v. California

UC Hastings professor Rory Little has written a response to my post on Fernandez v. California, the third-party consent case that the Supreme Court will be hearing next week. Professor Little asked if I would be interested in posting it, and I am happy to do so. I’ve included a few thoughts in reply at the end, as well.

Here is Professor Little’s response:

Recently Professor Orin Kerr posted his view that Fernandez v. California , set for argument next Wednesday, is an “easy case” that should come out in the government’s favor.  He may be right.  But my own preview suggests that the case raises more difficult questions than may first appear.

Background: Recent Fourth Amendment Doctrinal Shifts

            There is no doubt that the past 12 years have witnessed gradual yet significant shifts in Fourth Amendment doctrine, even after the Court shifted doctrine 50 years ago in Katz [ 389 U.S. 347 link] to focus search and seizure analysis on privacy rather than property and bring non-trespassory “wiretapping” into the Fourth Amendment.

            In 2001, Justice Scalia wrote for the Court in Kyllo [533 U.S. 27 link] that a Fourth Amendment “search” can be effected by aiming a “thermal heat imager” at a residence and detecting unusual amounts of heat emanating from the walls.  Although there were no obvious privacy concerns from public street observations, as well as no physical trespass, the Court expansively explained that “the question we confront today is what limits there are upon th[e] power of technology to shrink the realm of guaranteed privacy.”  The Kyllo Court thus ruled that a governmental search for “intimate details” of the home can trigger the Fourth Amendment.

            Warrantless dog sniffs, aerial surveillance of fenced backyards, trespass on “open fields” (which need be neither “open” nor “fields”) – and

Continue Reading 0