Articles Posted in Search & Seizure

Asset ForfeitureThe process of asset forfeiture, at least in principle, allows law enforcement to seize property used in the commission of a crime. Officials can sell the property at auction, with the proceeds often going back into law enforcement budgets. As the use of this procedure has grown, however, it has produced many unjust results. During the Obama administration, the Department of Justice (DOJ) sought to limit the use of asset forfeiture by federal law enforcement. The new Attorney General (AG), however, has rescinded the previous administration’s policy and issued a new order that could expand the use of the procedure. This has brought opposition from both parties in Washington, but it is not yet clear to Texas criminal attorneys what impact this order will have.

The principle behind asset forfeiture is to deprive criminals of property used in the commission of crimes, applying the value of that property toward law enforcement activities. In practice, asset forfeiture often strays far from this noble purpose. Criminal asset forfeiture requires a level of proof that is at least somewhat close to the state’s burden of proof in a criminal prosecution. See 18 U.S.C. § 981. Civil asset forfeiture, on the other hand, has a lower burden of proof, does not require an actual conviction for an actual crime in many cases, and does not necessarily require the joinder of the property owner as a party. Id. at § 982. A civil forfeiture case might be styled, for example, United States v. $50,000 in Cash, with the owner of that money nowhere to be found.

A particularly controversial element of federal asset forfeiture is a process known as “adoption.” When state or local police seize property and turn it over to federal authorities, adoption provides for “equitable sharing” of the proceeds of the ensuing forfeiture case. See 28 U.S.C. § 524(c). Most of the proceeds can end up back with state or local law enforcement under this program, creating an incentive for local authorities to use federal forfeiture procedures whenever possible instead of state forfeiture laws that might have more built-in protections for property owners.

stray catThe right against self-incrimination is a well-known part of the U.S. Constitution, but it is not always well understood. Applying this principle in the real world, with all of its ambiguity and uncertainty, has proven quite challenging for the courts. The Fifth Circuit Court of Appeals recently ruled on a claim that police violated a person’s First, Fourth, Fifth, and Fourteenth Amendment rights by allegedly retaliating against a person after he refused to answer their questions. The court ruled for the plaintiff on his Fourth Amendment claims but not the other claims. Alexander v. City of Round Rock, No. 16-cv-50839, slip op. (5th Cir., Apr. 18, 2017). The case is a civil lawsuit, rather than a criminal prosecution, but its interpretation of the Fifth Amendment’s right against self-incrimination could affect future Texas criminal cases.

The Fifth Amendment’s protection against self-incrimination generally means that a person cannot be compelled or coerced into saying something that could place them in criminal trouble. A refusal to answer questions because of this right is commonly known as “pleading the Fifth.” The Fifth Amendment has also been interpreted as requiring courts to suppress confessions by defendants that were not given voluntarily. The caselaw remains unclear on which remedies may be available when a Fifth Amendment violation occurs outside the context of a custodial interrogation.

According to the court’s statement of the facts of the case, all drawn from the plaintiff’s complaint, an officer stopped the plaintiff “in a hotel parking lot after observing what he perceived as suspicious activity.” Alexander, slip op. at 1. The plaintiff stated that he had stopped his vehicle and gotten out to look for a stray cat he had seen. He told the officer that he would not answer any of his questions.

1942 Nash Ambassador X-rayCourts have identified numerous exceptions to the Fourth Amendment’s search warrant requirement, meaning that law enforcement may conduct a search without first obtaining a warrant if they can demonstrate that the situation falls under a recognized exception. They must still demonstrate probable cause to believe that the search would yield contraband or evidence of criminal activity. The “border search exception,” however, goes further than most exceptions. It states that law enforcement, specifically the U.S. Border Patrol and U.S. Customs and Border Protection (CBP), can conduct searches of people and property entering the U.S. without a warrant, and without probable cause under some circumstances. Two Texas drug crime-related searches and seizures at a border crossing in early 2017, using high-tech imaging equipment, demonstrate how searches at or near the border can be different from searches elsewhere.

The border search exception is based in part on the sovereign right to control entry to the country. The U.S. Supreme Court has held that customs officials may search mail and other items arriving at the border without a warrant. United States v. Ramsey, 431 U.S. 606 (1977). With regard to searches of people and their property, the court has held that people have a lessened expectation of privacy at border crossings. Florida v. Royer, 460 U.S. 491, 515 (1983). Law enforcement can stop vehicles at fixed checkpoints for the purpose of immigration enforcement, even without any specific suspicion about individual vehicles, and they can refer some vehicles to a “secondary inspection area.” United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976).

Congress has given immigration officials the authority to perform these types of immigration enforcement functions up to 100 miles from international borders within the U.S. 8 U.S.C. § 1357(a)(3). When law enforcement officials are not operating out of a fixed checkpoint, such as by pulling over individual vehicles on public roads, the Supreme Court has held that they must be able to demonstrate probable cause. Almeida-Sanchez v. United States, 413 U.S. 266 (1973). Fixed checkpoints therefore provide law enforcement with their greatest amount of power to conduct warrantless searches.

Dark CobwebThe criminal justice system must constantly adapt to changes brought by the increased use of the internet. Legal doctrines that once only applied to physical searches of people’s homes must now regulate “virtual” searches. Several years ago, federal prosecutors charged an individual with multiple offenses arising from his alleged administration of an online marketplace for illegal drugs and other contraband. It was reportedly the first prosecution involving the drug trade on the so-called “dark net.” A jury convicted the defendant on all seven counts in the government’s indictment, which included drug-related offenses, racketeering, and computer fraud. A judge sentenced him to life imprisonment. In May 2017, a federal appellate court denied his appeal, in which he argued in part that his Fourth Amendment rights had been violated. United States v. Ulbricht, No. 15-1815, slip op. (2d Cir., May 31, 2017).

Federal law allows law enforcement to monitor electronic communications under strict limitations. Two types of surveillance allowed by federal law are known as “pen registers” and “trap and trace devices.” A pen register “records or decodes dialing, routing, addressing, or signaling information transmitted by” a telephone or other device. 18 U.S.C. § 3127(3). A trap and trace device “captures the incoming electronic or other impulses,” allowing law enforcement “to identify the source of a wire or electronic communication.” Id. at § 3127(4). Neither device may capture or record “the contents of any communication.” Id. They provide law enforcement with a record that shows the source, destination, and duration of phone calls and other communications.

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burglaryThe Fourth Amendment prohibits police from searching a person or their premises, or from seizing their property, without a warrant issued by a court upon a showing of probable cause. The War on Drugs, which began in the 1970s, considerably expanded law enforcement’s powers, and laws passed in the last 15 years as part of the “War on Terror” expanded them even further. Now, tactics that were originally authorized for counter-terrorist activities are primarily used in drug enforcement operations. A bill passed by Congress in 2001 authorized Delayed Notification Search Warrants (DNSWs), also known as “sneak and peek” warrants. Civil rights advocates charge that DNSWs allow law enforcement to engage in what are essentially legalized burglaries of private residences, raising serious Fourth Amendment concerns.

When executing a search warrant, officers must normally follow the “knock-and-announce” rule, meaning they must identify themselves as police and state their purpose before forcibly entering a residence. After executing a warrant, officers must provide the owner of any seized property with a copy of the warrant and a receipt for the property. Fed. R. Crim. P. 41(f)(1)(C). A court may issue a “no-knock” warrant when officers allege exigent circumstances that risk the destruction of evidence. This type of warrant sometimes results in a show of overwhelming force by police, but some courts have begun to restrict this practice on constitutional grounds.

In October 2001, Congress passed the USA PATRIOT Act. The law’s stated purpose was to “provid[e] appropriate tools required to intercept and obstruct terrorism”—giving it the title “PATRIOT” as an acronym. It established procedures for the issuance of DNSWs, which allow the delay of any required notice to the owner of the premises to be searched for “a reasonable period” after the execution of the warrant. Pub. L. 107-56 § 213 (Oct. 26, 2001), 115 Stat. 286; 18 U.S.C. § 3103a(b). A DSNW should “prohibit[] the seizure of any tangible property…except where the court finds reasonable necessity for the seizure.” Id.

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crt-monitor-old-tower-personal-35565The Fourth Amendment to the U.S. Constitution requires law enforcement officials to obtain a warrant prior to searching an individual’s personal effects or seizing their property. The warrant must demonstrate probable cause to believe that the search or seizure will reveal evidence related to a criminal investigation. These protections apply both to a person’s physical effects, such as documents and other materials, and to their “electronically stored information” (ESI). The extent to which a warrant may allow law enforcement to search and seize ESI is still a matter of dispute. A federal judge issued a ruling in late 2016 that seems to grant broad powers to law enforcement to seize ESI. The court found that the Federal Rules of Criminal Procedure and the Stored Communications Act (SCA) required a provider of email services to turn over the entire contents of several email accounts. In re Microsoft Corp., No. 2:16-mj-08036, mem. order (D. Kan., Sep. 28, 2016).

At the time the Fourth Amendment was drafted and ratified in the 18th century, people’s personal effects mostly consisted of materials that they kept on their person or in their residence. This remained true for nearly two centuries, until computers became widespread, and people began using third-party internet service providers (ISPs) to communicate. Private communications, which enjoy the Fourth Amendment’s protection from warrantless searches and seizures, may now reside on servers maintained by ISPs, with the owner of those communications having the right to access them.

The third-party doctrine, which holds that information voluntarily disclosed to others is no longer protected by the Fourth Amendment, would seem to make communications stored by ISPs accessible to law enforcement—this seems to fit the letter of that particular doctrine, if not its spirit. The SCA attempts to reconcile the use of third-party ISPs with the Fourth Amendment, establishing requirements for warrants issued to ISPs. 18 U.S.C. § 2703. Procedural rules also address warrants for ESI. See Fed. R. Crim. P. 41(e)(2)(B).
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messengerThe Fourth Amendment’s guarantee of people’s right “to be secure in their persons, houses, papers, and effects” has gained new meanings as computer technology enables people to store their personal communications, such as email, on remote servers operated by third-party service providers. Courts have repeatedly had to consider whether data stored remotely remains “private” for the purposes of the Fourth Amendment. Federal law allows law enforcement to access emails and other remotely stored data without a warrant under certain circumstances. Texas became one of the first states to require a search warrant for such materials in 2013, and several other states have followed suit. In June 2016, the U.S. House of Representatives passed H.R. 699, the Email Privacy Act (EPA), which would apply the same restrictions as those found in Texas law. The bill is now pending in the Senate.

The Supreme Court, when determining whether police must obtain a warrant for certain types of materials or information, looks at whether a person has a reasonable expectation of privacy in that particular area. The “third-party doctrine” holds that a person has no reasonable expectation of privacy in materials that they have voluntarily given to a third party. See Smith v. Maryland, 442 U.S. 735 (1979). “Cloud computing,” which refers to the use of remote servers to store data, instead of local devices like personal computers or smartphones, has raised numerous questions and concerns regarding the third-party doctrine.

Most Supreme Court rulings on the third-party doctrine involve information given out once, such as the numbers of outgoing phone calls in Smith. Cloud computing, on the other hand, involves data that people store with the intention of accessing it repeatedly. Email service providers, for example, frequently offer remote hosting to consumers free of charge, allowing people to access their email from multiple devices and locations. This is not the same type of activity addressed in the most influential third-party doctrine court cases, all of which predate the widespread availability of cloud computing.

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tea leavesPolice are generally not permitted to search a person or their premises, or to seize their property, unless they obtain a warrant from a judge after demonstrating probable cause to believe a search will yield evidence related to a criminal investigation. The “War on Drugs” has led to some highly creative methods of alleging probable cause, as demonstrated by a civil lawsuit filed against a county sheriff’s department for civil rights violations under 42 U.S.C. § 1983. A judge ruled in late 2015 that the defendants had demonstrated probable cause to justify the 2012 raid on the plaintiffs’ home, which turned up no evidence of drugs whatsoever. Harte, et al. v. Bd. of Comms. Of Johnson County, Kan., No. 2:13-cv-02586, mem. Order (D. Kan., Dec. 18, 2015). This is not a final order regarding probable cause but instead a summary judgment order holding that probable cause was enough for the defendants to avoid civil liability.

The Fourth Amendment to the U.S. Constitution states that a search warrant requires probable cause, “supported by Oath or affirmation,” along with a description of “the place to be searched, and the persons or things to be seized.” Police are generally limited to searching the areas identified in a warrant for specific contraband or other items. An officer cannot expand the scope of a search without obtaining an amended warrant, unless an exception to the warrant requirement applies. Anything seized by police that is outside the scope of the warrant and that does not fall under an exception may not be used against the defendant.

Sheriff’s deputies in Johnson County, Kansas, reportedly dressed in SWAT gear, executed a search warrant on the Harte plaintiffs’ home in late April 2012. The warrant allowed them to search for marijuana and drug paraphernalia. Two hours of searching the residence failed to yield any illegal drugs or drug paraphernalia, and no charges were filed. The plaintiffs were reportedly both former employees of the CIA, and they undertook to find out why their home had been raided by heavily armed officers.

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Telecommunication AntennasThe question of whether police must obtain a warrant for historical cell-site location information (CSLI) has received considerable attention in recent years. The Fourth Circuit Court of Appeals, ruling en banc, recently held that the government does not violate the Fourth Amendment by obtaining CSLI without a warrant. United States v. Graham (“Graham II”), Nos. 12-4659, 12-4825, slip op. (4th Cir., May 31, 2016). The court based its ruling on the third-party doctrine, which holds that individuals have no reasonable expectation of privacy in materials or information that they have voluntarily turned over to a third party. It partly overturned the ruling of a three-judge panel that held that police violated the defendant’s Fourth Amendment rights. United States v. Graham (“Graham I”), 796 F.3d 332 (4th Cir. 2015).

The U.S. Supreme Court articulated the third-party doctrine in United States v. Miller, 425 U.S. 435 (1976), which held that a defendant had no reasonable expectation of privacy in records maintained by two banks where he had accounts. It expanded the doctrine to telecommunications technology when it held that the warrantless use of a pen register to record the numbers of outgoing phone calls did not violate the Fourth Amendment. Smith v. Maryland, 442 U.S. 735 (1979). The recent Graham decision used multiple citations to Smith.

Numerous methods of tracking the location of mobile devices exist, but historical CSLI is one of the simplest, least-intrusive methods. Cell-service providers allow users to access their mobile networks through a system of cell towers. Mobile devices periodically emit a signal that these towers use to determine the most effective means of routing calls to that device. Cell-service providers retain all of the data obtained from mobile devices, and this data can indicate the location of a particular device at a specific time.

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Border RegionThe U.S. Supreme Court has identified numerous exceptions to the Fourth Amendment’s requirement that law enforcement officers obtain a warrant before conducting a search of, or seizing, a person or their property. The “border search exception” is of particular concern in west Texas, but it affects people all over the country’s border and coastal regions. Federal law gives immigration and border patrol agents the authority to search people and their property near U.S. borders for the purpose of enforcing federal immigration and criminal laws. The border region, as defined by immigration authorities, is bigger than one might think, extending 100 miles inward from the nation’s borders and coastal areas.

U.S. Customs and Border Protection (CBP) operates stations throughout the border region, such as the Sierra Blanca Border Patrol station in Hudspeth County, Texas. These facilities are intended to intercept people violating immigration law, and they also serve other law enforcement purposes. Agents have wide latitude under federal law to conduct warrantless searches “within a reasonable distance from any external boundary of the United States,” 8 U.S.C. § 1357(a)(3), and to make arrests for suspected federal crimes. Federal immigration authorities have interpreted “reasonable distance” to mean “within 100 air miles” since the 1950s. 8 C.F.R. § 287.1(a)(2), 22 Fed. Reg. 9808 (Dec. 6, 1957).

Permanent highway checkpoints, intended to stop vehicles and question drivers and passengers, do not inherently violate the Fourth Amendment, according to the U.S. Supreme Court in United States v. Martinez-Fuerte, 428 U.S. 543 (1976). Border patrol agents are permitted to detain a person without a warrant if they have reasonable suspicion of an offense such as drug smuggling, United States v. Montoya de Hernandez, 473 U.S. 531 (1985); and to conduct thorough vehicle searches to look for drugs and other contraband, United States v. Flores-Montano, 541 U.S. 149 (2004).

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