Archive | Fourth Amendment

A Preliminary Legal Analysis of Eckert v. City of Deming, the “Clenched Buttocks” Case

A lot of folks in the blogosphere have been writing about this story on Eckert v. City of Deming, a Fourth Amendment civil case involving a routine traffic stop that turned into the government forcing a suspect to undergo invasive medical procedures looking for drugs. I thought I would run through some of the allegations as well as the major legal issues they raise. Unfortunately, the case is too complicated to give a full and complete picture of all the legal issues in the time I have. But I hope to at least hit some major points.

The facts alleged in the case are complicated and filled with many allegations, but here’s the gist of it. Officers pulled over Eckert for a traffic violation, and the officers came to believe that Eckert was a narcotics smuggler. A drug-sniffing dog was brought to the car, and it alerted to the front seat where Eckert had been sitting. The officers came to believe that Eckert had drugs stored up his rectum, and they brought Eckert to the police station. The officers then applied for and obtained a search warrant to search his body for the drugs, including but not limited to his rectal area.

The officers brought Eckert to the local emergency room to have a doctor execute the warrant, but the first doctor refused. The officers located a medical center in a nearby county and brought him to the ER there, and the ER doctor agreed to execute the warrant. The ER doctor ordered an X-ray, which produced nothing, and then conducted a digital rectal exam over Eckert’s objection. The doctor felt something soft but wasn’t sure what it was, and he then passed off the case to another doctor. At this point it was a little after 10pm. The [...]

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My Thoughts on Fernandez v. California

On November 13th, the Supreme Court will hear oral argument in a Fourth Amendment case, Fernandez v. California, on the scope of the third-party consent doctrine. Fernandez isn’t the most important case on the Court’s docket. The Question Presented is narrow and the practical stakes are pretty small. But the case raises some interesting conceptual questions about constitutional criminal procedure doctrine, and I wanted to explain those issues in this post.

I. The Matlock and Randolph Precedents

The basic issue raised in Fernandez is when can the police get a person’s consent to search a home for evidence of a co-tenant’s crimes. The facts of the case fall between the facts of two major precedents that neither party challenges. To understand Fernandez, then, we need to start with those two cases.

First, in United States v. Matlock (1974), the Court articulated the general rule that any person who has “common authority” over the home can consent to a search of the home. In Matlock, the police arrested the defendant in his front yard put hi in a squad car. They then asked the woman he lived with to consent to a search of the home, and she agreed. The Court ruled that the police could rely on her consent because she had “common authority” over the home. In a critical footnote, the Court explained that common authority meant “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” When you chose to live with someone and [...]

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Erin Murphy on Maryland v. King

The forthcoming Supreme Court issue of the Harvard Law Review will feature an essay by NYU Law professor Erin Murphy on the Supreme Court’s recent Fourth Amendment case on DNA searches, Maryland v. King. Professor Murphy’s essay, License, Registration, Cheek Swab: DNA Testing and the Divided Court, argues that King is likely to have an unexpectedly large impact on the future of Fourth Amendment law.

In Murphy’s view, King is significant less for what it said than for what it didn’t say. Presented with the major implications of DNA analysis in the parties’ briefs and the amicus briefs, the Court didn’t address them. Instead, Justice Kennedy issued a majority opinion that seemed unconcerned with those implications. In Murphy’s view, “[t]he failure of the decision to offer express guidance on these matters is thus a silence that speaks at least as loudly as words, especially since the Court not only resisted declaring such safeguards as essential, but also planted seeds suggesting the contrary.” While the majority opinion is vague on certain major points and could be construed narrowly or broadly, unfortunately there is reason to suggest that the Court is likely to construe it broadly in future cases. As a result, she contends, basic bulwarks of Fourth Amendment protection such as warrants and individualized suspicion are potentially threatened.

I always enjoy Professor Murphy’s work, and she may be right. In my view, though, it’s difficult to know. From a legal realist standpoint, a future Supreme Court will construe King pretty much however it wants. It may be that five Justices on the current Court would be willing to read King broadly in future cases. But with no votes to spare from this 5-4 decision, we don’t know how far the Court could go without losing that fifth vote (Breyer, [...]

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Third Circuit Requires Warrant for GPS Monitoring and Limits Good-Faith Exception in United States v. Katzin

Today the Third Circuit handed down United States v. Katzin, an important cases on three related issues of Fourth Amendment law: first, whether the installation of a GPS device requires a warrant; second, the scope of the Davis good-faith exception to the exclusionary rule; and third, who has standing to suppress the evidence from the physical search of a car following a GPS search.

The divided court ruled in the defendants’ favor on all three issues. First, installation of a GPS device requires a warrant; second, the Davis good-faith exception applies only when there was directly on-point binding appellate precedent allowing the government’s acts; and third, every passenger in the car at the time it is stopped has standing to challenge the fruits of the subsequent physical search. There’s a lot in the Katzin case, so I thought I would blog on the three issues and offer my perspective on them.

I. The Facts

The police were tracking a string of burglaries at Rite-Aid pharmacies across several states, and they came to have very strong suspicion that Katzin and his two brothers were committing the burglaries using Katzin’s van. The police found the van one day, so they called the local U.S. Attorney’s Office. The prosecutors at the office advised them that they could put the GPS device on without a warrant. (This was December 2010, before the Supreme Court’s GPS decision in Jones.) The police attached the GPS device on the car when it was parked on a public road. The device allowed the police to monitor the location of the car in real-time remotely. The GPS device quickly paid off: Just several days after placing the GPS device on the car, the GPS showed the car parked for a few hours right next to a Rite-Aid [...]

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“Does Technology Lead to Tyranny? – The Fourth Amendment and New Technologies in a Digitized World”

Last Friday, I spoke on a very interesting panel about how the Fourth Amendment should respond to new technologies hosted by the Heritage Foundation. The panelists were Miguel Estrada of Gibson Dunn, Susan Herman of the ACLU and Brooklyn Law, and me. Paul Larkin of the Heritage Foundation moderated. You can watch the panel here:


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Fourth Amendment Civil Suit for Deleting a Picture from the Plaintiff’s Camera

Here’s an oddball Fourth Amendment case involving an issue I have never seen litigated: How does the Fourth Amendment apply to deleting a picture from a digital camera? In Burch v. City of Florence, Ala., 913 F.Supp.2d 1221 (N.D.Ala. 2012), the police had received various complaints that the plaintiff was causing concern because he was taking pictures of lots of people and cars in town. He would apparently follow people and take lots of pictures of them, all without any apparent reason. A police officer who knew about the complaints spotted the plaintiff and pulled him over for a traffic violation. When the car was stopped, the officer saw the camera in the car. The officer grabbed the camera and started looking through its pictures. When the officer found a picture of the officer’s own license plate (of his personal car), the officer deleted the picture from the camera. The officer then let the plaintiff go. The plaintiff then filed a pro se civil suit under the Fourth Amendment, claiming that searching the camera and deleting the image violated his Fourth Amendment. The district court ruled that the search of the camera was lawful under the automobile exception because the officer had probable cause to believe that the car possessed evidence of “criminal surveillance” in violation of Alabama Code § 13A–11–32; searching the camera was allowed because the phone was a container just like any other.

The court then turned to the deletion of the photo on the plaintiff’s camera and rejected liability on the following grounds:

The next question is whether McIntyre’s deletion of the photograph of his own license plate from the digital storage device of plaintiff’s camera constituted an unlawful seizure of plaintiff’s property in violation of the Fourth Amendment. McIntyre does not even attempt to

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Drug Sniffing Dogs and Marijuana Decriminalization

Under Illinois v. Caballes, 543 U.S. 405 (2005), the use of a drug sniffing dog to alert for drugs is not a Fourth Amendment search. Caballes reasoned that possession of the drug is a crime, and a sniff that only alerts to the presence of the drug does not infringe on an expectation of privacy that society is prepared to recognize as “legitimate.” A student of mine raises an interesting question: Is use of a drug-sniffing dog a “search” if the dog is trained to alert to marijuana but the state has decriminalized marijuana? Granted, even if the dog alerts, the alert may not amount to probable cause if marijuana was decriminalized. See Commonwealth v. Daniel, 464 Mass. 746, 985 N.E.2d 843 (Mass 2013). But as far as I know, no court has considered the antecedent question: Where the police uses a dog that alerts to the presence of marijuana, is the use of the dog itself now a search? In other words, does decriminalization undercut Caballes? And does it depend on whether the dog is used by state agents (who work for the sovereign that has decriminalized marijuana) or by federal agents (who work for the sovereign that has not), or whether the state has decriminalized only certain quantities of possession? In Washington, the police are retraining dogs to no longer alert to marijuana, so perhaps changing law enforcement practices will ensure that this issue doesn’t come up often. Still, it’s an interesting question for us Fourth Amendment nerds. [...]

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Speaking of Fourth Amendment History…

In light of my last post on Fourth Amendment originalism, I thought I would make two more comments — one a recommendation and the other a question.

1) Among those doing historical work on criminal procedure, I think one scholar’s historical work that is excellent and consistently “underplaced” is Wes Oliver of Duquesne (formerly of Widener). Professor Oliver has published important articles on the history of criminal procedure over the last five years without placing higher in the rankings than a Top 50 or so journal. His articles should have placed much higher; journal editors, take note.

2) I’m teaching a seminar on Fourth Amendment history this coming spring. I haven’t taught a seminar at GW, as I usually teach just large classes, including 351 students last academic year; so this is a gift from the Associate Dean. Anyway, I’d be interested in your help about what materials I should assign. The seminar will focus on the evolution of Fourth Amendment doctrine, to try to understand the law as it was understood then and as it changed over time — and to the extent we can, to speculate about why it changed. To that end, my plan is to immerse students in original sources of various historical doctrines of Fourth Amendment law that are now either forgotten, have been overturned, or are otherwise poorly understood. Subjects might include the rise and fall of the mere evidence rule; the evolution of the search incident to arrest doctrine; changing understandings of probable cause; and the early interpretation of state search and seizure protections. I’ll probably also do one or two classes on the major scholarly debates on Fourth Amendment history (the views of Lasson, Cuddihy, Taylor, Davies, Amar etc.), although that won’t be the focus.

I plan to assign a mix of [...]

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Two Petitions on Searching Cell Phones Reach the Supreme Court

In recent weeks, two cert petitions have been filed seeking review of how the Fourth Amendment applies to searching a cell phone incident to arrest. Although the two cases raise the same legal issue, the facts of the two cases actually are pretty different. And the difference in the facts reflects the fast-moving evolution of cell phones.

First, on July 30th, Jeff Fisher filed this petition in Riley v. California, seeking review of a California appellate decision you can read here. Second, last Thursday, DOJ filed this cert petition in United States v. Wurie, seeking review of the The First Circuit’s decision requiring warrants for most cell phone searches.

The factual differences in the two cases are pretty interesting. Wurie involved a search in 2007, and the search of the phone was pretty narrow. The First Circuit described the phone as “gray Verizon LG phone,” and it noted that the phone had an “external caller ID screen on the front of the phone” and that had to be opened to be used. In other words, it wasn’t a so-called smartphone. It was probably something like this:

The officers in Wurie searched the phone only in two very limited ways. First, they opened the phone and saw a photograph set as the phone’s “wallpaper.” Second, they pressed a single button to view the phone’s call log and then pressed a second button to see the phone number associated with a programmed in contact that had called the phone.

The search in Riley appears to have been different. The Riley search occurred in 2009. A lot had changed in the cell phone world between 2007 and 2009. In June 2007, Apple introduced the iPhone, followed up a year later 2008 by the iPhone 3G. The phone [...]

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Lower Court Interpretations of Davis v. United States, 131 S.Ct. 2419 (2011).

In Davis v. United States, 131 S. Ct. 2419 (2011), the Supreme Court considered what remedies are available when appellate courts hand down Fourth Amendment rulings expanding Fourth Amendment rights beyond the state of prior caselaw. When that happens, the officer may have taken steps that were thought to be lawful at the time but later held to be unlawful. According to Davis, the exclusionary rule does not apply to Fourth Amendment violations when the officer had acted “in objectively reasonable reliance on binding appellate precedent” that had allowed the officer’s acts.

Davis has become a very important case: It has been cited several hundred times among lower courts in just two years. In this post, I want to bring readers up to date on what the lower courts are doing with Davis. Its test is surprisingly murky in application, and lower courts have struggled to apply various parts of it and disagreed on its scope. I’ll start with an overview of Davis and the uncertainties of its rule, and I’ll then turn to the lower court cases. Given the large body of caselaw, I’ll stick to the major precedents as best I can identify them; readers are invited to add in additional caselaw in the comment thread.

I. Davis v. United States

In Davis, an officer had searched a car incident to arrest pursuant to the near-universal understanding that such searches were permitted by Belton v. New York. By the time the case was on direct appeal, the Supreme Court effectively overturned Belton in Arizona v. Gant. Under the near-universal understanding of Belton, the search had been lawful; under Gant, the search was unlawful. The question in Davis was what to do with the intervening change in law. Under the [...]

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Fifth Circuit Hands Down Long-Awaited Case on the Fourth Amendment, Cell-Site Data, and Ex Parte Decisionmaking

Last year, I blogged extensively about the pending Fifth Circuit case on Fourth Amendment protection for cell-site data. Readers may recall that this is the case in which a Magistrate Judge denied an application for a court order to obtain cell-site data on the ground that he thought the Fourth Amendment would be violated by the order’s execution. DOJ appealed on Fourth Amendment grounds arguing that cell-site data is unprotected by the Fourth Amendment; various amici argued that the Magistrate Judge was correct and that cell-site data is protected; and I wrote an amicus brief raising procedural objections and arguing that the issue was not ripe for adjudication and therefore the merits couldn’t be reached.

Today the Fifth Circuit issued its opinion, which is available here: In Re: Application of the United States of America for Historical Cell Site Data. This is a long post, so here’s the bottom line: The majority opinion reached the merits and gave the government a huge win. But the opinion addressed and resolved a lot of issues, so in this long post I want to run through all the important legal questions answered by the Fifth Circuit’s opinion. Following the order in the opinion, I’ll start with the court’s procedural holdings and then turn to the merits. I’ll then offer my own analysis, both of the impact of the court’s opinion and of the persuasiveness of its holdings.

Also, given the number and complexity of the issues, I’m going to stick to addressing the majority opinion by Judge Clement. Judge Dennis dissented primarily on statutory grounds, but I won’t focus on that dissent here.

I. The Procedural Holdings

Here are the holdings of the majority opinion:

1) The dispute is ripe because it is limited only to a pure question of law, specifically, [...]

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First Circuit Denies En Banc Review in Cell Phone Search Case, But Two Judges Ask Supreme Court To Step In

Two weeks ago, when DOJ petitioned for rehearing en banc in United States v. Wurie, the Fourth Amendment case on searching cell phones incident to arrest, I wrote that the petition for rehearing was a possible preview of a future DOJ cert petition:

I wouldn’t be surprised if this filing offers us a preview of a future cert petition. The arguments in the petition resemble the kinds of arguments that would be made in a cert petition to the Supreme Court, and en banc review is relatively rare in the 1st Circuit. Plus, Deputy SG Michael Dreeben argued Wurie before the original panel. Filing a petition for rehearing may also be a way of keeping other cases out of the Supreme Court in the short term; the possibility of en banc review arguably keeps Wurie out of the split count. Either way, stay tuned.

Well, the denial of rehearing didn’t take long: Today the First Circuit denied rehearing en banc. Notably, both Chief Judge Lynch and Judge Howard authored separate statements asking the Supreme Court to step in and review the issue. Here is the entirety of Judge Lunch’s statement:

I vote to deny rehearing en banc not because the case does not meet the criteria for en banc review. It clearly does. Indeed, the issues are very important and very complex.

I vote to deny rehearing en banc because I think the preferable course is to speed this case to the Supreme Court for its consideration. There are two very able opinions from this court, and en banc review in this Court could not improve on their presentations of the issues.

The decision in this case creates a circuit split with respect to the validity of warrantless searches of cell phones incident to arrest. State courts similarly

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Metadata, the NSA, and the Fourth Amendment: A Constitutional Analysis of Collecting and Querying Call Records Databases

In his recent Wall Street Journal op-ed, my co-blogger Randy Barnett argues that massive-scale collection of communications metadata by the NSA violates the Fourth Amendment because it is an unreasonable seizure. Randy’s colleague Laura K. Donohue recently argued in the Washington Post that such collection violates the Fourth Amendment as an unreasonable search. Jennifer Granick and Chris Sprigman made a similar argument in the New York Times.

Are they right? Does obtaining all telephony metadata under Section 215 — and then querying the database — violate the Fourth Amendment?

In this post, I’ll start with current law, and I’ll explain why current law supports the conclusion that massive-scale collection of communications meta-data by the NSA does not violate the Fourth Amendment rights of its customers. I’ll then consider alternate views of the Fourth Amendment and explain the prospects and challenges of using the mosaic theory to get to a contrary result.

I’ll then turn to the argument Randy flags that obtaining this metadata may violate the rights of the communications providers instead of customers. This strikes me as a plausible argument, but not a certain one; I find the issue doctrinally murky, and I don’t have a strong view of it. But in this post I’ll offer the arguments for the sake of those interested in them.

I. Metadata Surveillance and the Fourth Amendment Rights of Customers

First, the facts. From what we can tell, the FISC has signed an order requiring communications providers to disclose the telephony metadata they have collected to the federal government. We don’t know exactly what records are actually being turned over, but the order indicates that it includes all non-content information, which might include numbers dialed, duration of calls, and the location information of cell-phones. The NSA is then querying the database, although [...]

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Massachusetts Supreme Judicial Court Hints That It Might Rethink Plain View Exception For Computer Searches

As regular readers know, I’m very interested in the scope of the plain view exception for computer searches. Given that interest, I thought I would point out a passage from today’s decision of the Massachusetts Supreme Judicial Court in Preventive Medicine Associates v. Commonwealth hinting that the Court might be open to curtailing the plain view exception in computer searches. It’s just a hint, but it’s an interesting hint. More after the jump….. [...]

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