I have been lecturing at Marino Legal CLE for several years.  We have been tracking the Supreme Court's analysis of privacy rights in the electronic age.  Specifically, I have been highlighting the Government's use of Judicial Orders rather than Warrants based upon Probable Cause to obtain historical, real-time and prospective cell site information on an individual. A recent Circuit Court Split has created the opportunity for SCOTUS to now resolve the question which we have been batting about. 

The 11th Circuit reviewed a case where historical cell site information linked the defendant to a string of Hobbs Act robberies. The Court concluded that the third-party doctrine, first discussed in Miller in 1976 "plainly controls the disposition of this case".
The flaw in this analysis resides in the presumption that citizens are aware of their privacy interests and are willingly forfeiting those privacy rights when they sign a contract with their cell phone service provider.

The 4th Circuit, faced with a similar factual scenario, came to an opposite conclusion.  "Taken together, Karo, Kyllo  and the views expressed in Riley and the Jones concurrences support  our conclusion that the government invades a reasonable expectation of privacy when it relies upon technology not in general use to discover the movements of an individual  over an extended period of time.  Cell phone tracking through inspection of CSLI is one such technology."

I have predicted that the Supreme Court will side with the 4th Circuit.  The 4th Circuit decision rests upon the analysis conducted by the Supreme Court as it has recently grappled with the particular problem technology presents to Fourth Amendment analysis.  The 11th Circuit on the other hand goes back to 1976 to support its holding.

Stay tuned.  I will report back when The Supreme Court agrees to resolve the split.

Here is an outline of the cases I discuss to build a framework for the electronic age discussion.

BACKGROUND CASES

A.      MAPP V. OHIO, 81 S.CT 1684 , 1961 WARRANT NECESSARY TO ENTER HOUSE  - TRESPASS-

B.      KATZ V. U.S., 88 S.CT.507, 1967 – NO TRESPASS - PROTECTS PEOPLE NOT PLACES – PRIVACY IN ASSOCIATION PROTECTION EXTENDED TO OFFICE, HOTEL, PHONE BOOTH.  HARLAN’S CONCURRENCE BECOMES TOUCHSTONE FOR FOURTH AMENDMENT “REASONABLE EXPECTATION OF PRIVACY” FORESHADOWING… THE MAJORITY SAYS WE CANNOT IGNORE THE ROLE THE PUBLIC TELEPHONE HAS COME TO PLAY IN OUR SOCIETY.

C.       UNITED STATES V. MILLER, 96 S. CT. 1619 (1976) –BANKING – THIRD PARTY DOCTRINE INTRODUCED

D.      SMITH V. MARYLAND, 99 S. CT. 2527 (1979)

E.       SOUTH DAKOTA V. OPPERMAN 96 S.CT 3092, 1976 - FIRST EXAMPLE OF TORTURING LOGIC.  CAR IS IMPOUNDED DUE TO PARKING TICKETS, HOW CAN MOBILITY/EXIGENCY BE FOUNDATION OF LOGIC.  CHANGE TO , USING HARLAN’S WORDS, WHAT IS EXPECTATION OF PRIVACY, IN AUTO, AND THEN WE GET “DIMINISHED EXPECTATION OF PRIVACY”

F.       U.S. V. KNOTTS 103 S.CT.1081 , 1983 FACTS – INTERDICTED CHLOROFORM, SELLER PLACES BEEPER INSIDE JAR –POLICE FOLLOW TO SEVERAL LOCATIONS EVENTUALLY TO A CABIN IN WISCONSIN.  COURT FINDS THAT NO INFORMATION OBTAINED ELECTRONICALLY THAT COULD NOT BE OBTAINED BY VISUAL SURVEILLANCE.  COURT FINDS NO TRESPASS, NO SEIZURE, NO SEARCH, AND NO EXPECTATION OF PRIVACY IN MOVEMENT FROM ONE PLACE TO ANOTHER.   THROW IN ANALYSIS OF BELTON TO GANT – “WOULD UNTETHER THE RULE FROM THE JUSTIFICATION UNDERLYING THE CHIMEL CASE”

G.     U.S. V. KARO 104 S.CT. 3296, 1984 – FACTS LIKE KNOTTS, BUT HERE BUGGED CONTAINER TRAVELLED TO LOCATIONS OUTSIDE THE VIEW OF THE POLICE.  NO SEARCH, NO SEIZURE, DECISION REFERS TO A “TECHNICAL TRESPASS” BUT I AM NOT SURE ABOUT THAT LANGUAGE.  RESOLVED THAT THE PLACEMENT OF BUG IS NOT A PROBLEM, BUT MONITORING A BEEPER INSIDE A PRIVATE RESIDENCE NOT OPEN TO VISUAL SURVEILLANCE WOULD VIOLATE EXPECTATION OF PRIVACY.

H.       KYLLO V. U.S. 121 S.CT. 2038, 2001. TECHNOLOGY SHRINKING REALM OF PRIVACY. 4 STEP ANALYSIS.

I.        UNITED STATES V. JONES, 132 S. CT. 945, 2012 FACTS – NO WARRANT – 4 WEEKS OF SURVEILLANCE – 2,000 PAGES OF DATA. COURT BELOW STATES, “PEOPLE TRAVELLING THE PUBLIC HIGHWAYS HAVE NO EXPECTATION OF PRIVACY” REVISIT DRAGNET QUOTE FROM KNOTTS.

SCALIA USES A CASE FROM 1765 TO DISCUSS AND DECIDES RETROFITS THE DECISION AS A “TRESPASS” VIOLATION.

LANGUAGE FROM SOTOMAYER VERY BENEFICIAL.

J.        FLORIDA V. JARDINES, 133 S. CT. 1409, 2013. DOG AS TECHNOLOGY KAGAN CONCURRENCE

K.      RILEY V. CALIFORNIA, 134 S. CT. 2473, (2014)  TELEPHONE AS SO MUCH MORE

N.     USA V. DAVIS -11^TH CIRCUIT,  MAY, 2015 SUPPRESSED ORIGINALLY, EN BANC REVERSAL

O.     USA V. GRAHAM – 4^TH CIRCUIT AUGUST, 2015

Suggested Reading

       1.       State v. Earls, 214 NJ 564

2.       In the Matter of an Application…, 515 F. Supp. 2D 325

3.       In the Matter of an Application… 809 F. Supp. 2D 113

                  

Privacy Rights While Riding

January    25, 2013

PEOPLE V. GARCIA 2012 Slip Op 08670 (12-18-12)

                  The New York Court of Appeals has rendered a decision which explicitly protects the privacy interests of citizens who are travelling in an automobile.   Citing the analysis found in the seminal cases, which address warrantless police/citizen street encounters (People v. DeBour, 40 NY 2d 210 (1976), People v. Hollman, 79 NY 2d 181 (1992)), the Court concluded, “the standards of DeBour and Hollman govern police-citizen encounters during lawful traffic stops”.

In Garcia, officers observed a broken taillight on the car which Mr. Garcia was driving.  As they approached the properly stopped vehicle, officers observed that   three male passengers in the rear seat “stiffened”, “acted nervous” and “made furtive movements”.  Upon reaching the driver the officers requested and the driver promptly produced a valid license and registration. At that point it would have been constitutionally permissible for the officers to order the occupants to step out of the vehicle (People v. Robinson, 74 NY 2d 773 (1989), Pennsylvania v. Mimms, 434 U.S. 106 (1977). Instead, Officer Cleri inquired if anyone in the car was in possession of a weapon.  When a passenger in the rear seat admitted to holding a knife, all passengers were removed from the car and searched.  Supreme Court denied Garcia’s motion to suppress, the Appellate Division First Department reversed, and the Court of Appeals took this opportunity to address the specific question of whether an officer’s inquiry of an inhabitant of a vehicle is subject to the rule set down in DeBour and Hollman.

                  Mr. DeBour was walking on the streets of Brooklyn just after midnight when two officers on patrol saw him.  DeBour crossed the street moving away from the police and this triggered suspicion.  When he was stopped DeBour was asked for identification (which he did not produce) and he was told to unzip his jacket.  When he complied, the butt of a gun was seen protruding from his waistline and he was arrested.  It was in this case that the Court of Appeals established its four level framework whereby an officer’s warrantless encounter will be analyzed to determine if the intrusion is consistent with an attending level of suspicion.  

                  Police Officers are always permitted  to approach citizens on the street  to request information not necessarily indicative of criminality.  In this least intrusive encounter, police can ask  for identification and are generally permitted to  attempt to gain information consistent with their duties as public safety officials. (i.e. looking for lost children or  a missing pet. (Level 1)  A level two intrusion, a common law right to inquire, permits law enforcement to momentarily detain an individual to ask questions which are indicative that the citizen may be involved in some wrongdoing.  In order for this type of inquiry to be constitutionally proper, the officer must be able to articulate objective facts, which would lead a judge to believe that criminal activity is afoot.  When an officer has reasonable cause to believe that an individual has committed a crime, he is permitted to temporarily detain that person.  To insure officer safety, a pat down is also permitted. (Level 3)  If there is probable cause to believe that an individual has committed a crime, seizure, in the form of an arrest is permitted.  Incident to a lawful arrest an individual and any containers in his immediate grabbable area are subject to a full search.

                  But how does this analysis apply to an individual who is not stopped on the street, but is approached by law enforcement agents while seated in a vehicle?  Hollman (and its companion case People v. Saunders), examined the propriety of an officer’s inquiry of passengers seated on a bus parked at the Port Authority.  The court distinguished between questions which were not indicative of criminality (“Did you pack any bags?”) and those, which were clearly more investigative in nature. (“Can I search your bag?”)  In reaffirming the framework established in DeBour, the Court of Appeals concluded, “The defendant's behavior, while it may have provided the officer with adequate basis for an approach  for a few general, nonaccusatory questions, was certainly not so suspicious as to warrant the further intrusion of a request to rummage through the defendant's luggage.” People v. Hollman, 79 N.Y.2d 181, 194, 590 N.E.2d 204, 211 (1992)

                  In Garcia, the State argued that the officer safety issue addressed in Robinson supported the proposition that an officer should be permitted to ask accusatory, intrusive question even when no evidence of criminality is present.  The Court disagreed. Citing an interest in promoting an even handed application of the DeBour framework to both street and vehicle encounters the court concluded, “whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have a founded suspicion that criminality is afoot.”

SUPREME COURT WATCH

 On September 28, 2010 the High Court granted cert on a case out of Kentucky which will address the warrantless entry into a home under “exigent circumstances”.  The issue the court will decide involves a situation where the exigency is actually created by law enforcement.

In Kentucky v. King, 09-1272, police were pursuing a fleeing felon when he ducked into an apartment building.  Not knowing exactly where the pursued was hiding, officers decided to pound on the door from which a distinct waft of marijuana was escaping.  After they pounded three times the officers heard what they believed were sounds consistent with the destruction of evidence.  Upon entering and conducting a protective search, the officers spotted large quantities of marijuana and cocaine in plain view.  All occupants of the apartment were placed under arrest.

The Kentucky Supreme Court reversed an appellate court’s denial of a motion to suppress.  The state argued that both “hot pursuit” and “exigent circumstances” justified the warrantless intrusion. The state court disagreed.  Although asked to address both issues, the Supreme Court will only hear arguments regarding warrantless entry into a home under exigent circumstances created by the police.

Cert was granted due to the significant split in authority among the Circuit Courts. In United States v. McDonald, 916 F 2d 766, an En Banc panel of the Second Circuit Court of Appeals adopted a rule that simply asks whether police have acted in a lawful manner, without regard to their subjective intentions.  “Thus assuming arguendo that there were no exigent circumstances before the knock, the agents’ conduct did not impermissibly create the circumstances occurring thereafter. “id., at   771.

Other Circuits have taken a much more in depth look into both the motives of the officers and the expected reasonable responses by occupants.  The First and Seventh Circuits look only to see whether law enforcement was unreasonable in its delay in obtaining a warrant.  The Sixth, Ninth, Tenth, Eleventh and D.C. Circuits, will only suppress evidence when the unreasonable delay is coupled with deliberate conduct in an attempt to evade the warrant requirement.

The Third and Fifth Circuits have adopted a two part test.  The first inquiry involves bad faith.  If it is found that police have acted deliberately and with bad faith in creating an exigency to evade the warrant requirement the motion to suppress will be granted.  Even if bad faith is not found, however, the court must inquire further.  The second prong examines the reasonableness of the officers’ actions.   Inquiry into whether the exigency existed prior to police activity and whether the investigative tactics triggered the exigency are factors the court will examine.

The Fourth and Eighth Circuits look to the foreseeability of results of the police actions. Here, suppression will be granted if the police impermissibly create the exigency at issue because the exigency was a reasonably foreseeable result of the officers’ actions.

When prosecuting a motion to suppress, defense attorneys often attempt to show that police possess little if any incriminating information regarding their client.  In this area, however, the defendant is better served if law enforcement has significant information tying the defendant to criminal activity.  If it can be shown that rather than taking the time to procure a warrant, the agents have acted in a manner which creates an exigent circumstance, the motion will prevail under the test set forth in  the Third, Fourth, Fifth and Eighth Circuits.  Let’s hope when Kentucky v. King is decided it is the test from one of these Circuits which becomes the law of the land.

Batson in the Court of Appeals

October 14, 2010 was a big day for criminal defense attorneys who pick juries in the state of New York.  The Court heard arguments on four cases which examine the trial court’s approach to Batson challenges.  (People v. Guardino, ____).
       
In 1986 the United States Supreme Court addressed the issue of the use of preemptory challenges in a fashion which discriminates against a class of potential jurors.  (Batson v. Kentucky, 476 U.S. 79, (1986))   Since that time trial attorneys on both sides of the aisle have been objecting to what appears to be a pattern of discrimination in the opposition’s use of challenges.  Trial Court’s have been instructed to employ a three tiered test to determine whether in fact a pattern of discrimination has been established.  I will not discuss those tiers at this time, because it is clear that the Court of Appeals is poised to hand down a decision which will attempt to create a new template for the Trial Court judges.

In my opinion, judges should have never opened this Pandora’s Box in the first instance.  At its core, the use of preemptory challenges is an exercise in discrimination.  Litigators are given a very short time to address, instruct and evaluate the qualifications of a panel of as many as 24 jurors.  The tools which the litigator uses for choosing the best jurors for his client  are all steeped in stereotyping.  It's not just race or ethnicity, but also the neighborhood in which the juror resides, employment status and level of education, for example, which are facts which the attorney digests to determine whether he believes the juror will be pro or anti defendant, or pro or anti prosecution.   It is not politically correct to say that an entire group of individuals is more inclined to acquit or convict, but if you ask any seasoned trial attorney about the ideal composition of a trial jury, the answer will reflect a preference in race, ethnicity, neighborhood, education, and employment.  When exercising his preemptory challenges, therefore, the attorney then discriminates against those group of individuals who do not fit into his picture of the ideal jury. 

How the Court of Appeals is now going to regulate this exercise is a mystery , but it is clear they will set down very specific guidelines when (People v. Guardino, ______) and its companions are decided.