Articles Posted in Search & Seizure

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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customs tapeThe U.S. Border Patrol checkpoint at Sierra Blanca in Hudspeth County, Texas has operated in one form or another for over a century. Located on Interstate Highway 10, the checkpoint has gained a certain notoriety as the site of numerous celebrity “drug busts,” particularly musicians’ tour buses traveling east from Los Angeles. Celebrities arrested at Sierra Blanca in recent years include Willie Nelson, Snoop Dogg, and Fiona Apple. The checkpoint’s primary purpose is immigration enforcement, while drug interdiction depends largely on the cooperation of local law enforcement. In 2015, the Hudspeth County Sheriff announced that he would no longer take marijuana cases from Border Patrol.

The Supreme Court has held that permanent roadside checkpoints near the U.S.-Mexico border, for the specific purpose of immigration enforcement, do not violate the Fourth Amendment’s prohibition on warrantless searches and seizures. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The Fourth Amendment does not, however, allow the use of roadblocks and drug-sniffing dogs to conduct warrantless searches for illegal narcotics, according to the Supreme Court in City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

According the U.S. Customs and Border Protection (CBP), Sierra Blanca played a role in immigration enforcement long before the Border Patrol even existed. A single “mounted guard” was stationed at Sierra Blanca and “charged with the enforcement of immigration laws in the area.” The Border Patrol established a station at that location soon after Congress created the agency in 1924. The Supreme Court ruled it constitutional 52 years later.

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droneCourts have identified exceptions to the Fourth Amendment’s prohibition on warrantless searches and seizures, as well as limitations on law enforcement’s authority within those exceptions, on a case-by-case basis for more than 100 years. As new technologies have appeared in society, and as law enforcement has adopted new investigative technologies, courts have struggled to keep up. Supreme Court decisions have applied at least two different theories, viewing cases in terms of either private property rights or an individual’s reasonable expectation of privacy. The “mosaic theory” of the Fourth Amendment, which is gaining some support in lower courts, looks at the long-term implications of aggregating surveillance data. A comprehensive surveillance program in Baltimore, Maryland, which only recently became known to the public, could force a reconciliation of these theories.

The most recent Supreme Court case to address warrantless electronic surveillance by police is United States v. Jones, 132 S. Ct. 945, 565 U.S. ___ (2012). That case involved the use of a GPS tracking device attached to a person’s vehicle, which gave police information on the vehicle’s location around the clock for a period of about four weeks. The court affirmed the D.C. Circuit Court of Appeals’ decision reversing the conviction on Fourth Amendment grounds. All nine justices considered the police’s actions to be unconstitutional, but they differed considerably in their reasons.

The majority opinion, written by Justice Scalia and joined by four other justices, was largely based on the private property theory. By installing the GPS device, police “physically occupied private property for the purpose of obtaining information.” Jones, 132 S. Ct. at 949. Justice Scalia cited “common-law trespass” as a basis for his ruling, id., and cited several recent cases that found Fourth Amendment violations based on electronic intrusions onto private property. See, e.g. Kyllo v. United States, 533 U.S. 27 (2001).

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Our ever-increasing use of digital technologies has significantly affected how law enforcement agencies and courts interpret the Fourth Amendment’s guarantee of people’s right “to be secure in their persons, houses, papers, and effects.” For most of this nation’s history, an individual’s “papers and effects” only existed in physical form. Telephones, computers, mobile devices, and the internet have added a virtual component to the concept of “papers and effects,” and the extent of the Fourth Amendment’s protections with regard to an individual’s digital information and online activity is an ongoing debate. During the summer of 2016, the U.S. Senate narrowly voted down an effort to amend the Stored Communications Act (SCA), which regulates law enforcement access to various types of digital and telecommunications data. The proposed amendment would have expanded the FBI’s access, in certain circumstances, to “electronic communication transactional records” (ECTRs), a broad category of data that could include web browsing history.

Congress originally enacted the SCA, 18 U.S.C. § 2701 et seq., in 1986, as part of a larger bill known as the Electronic Communications Privacy Act. The law prohibits unauthorized access to various electronic communications and electronic systems, but it requires service providers to disclose information to the FBI for “counterintelligence” purposes. 18 U.S.C. § 2709. This information includes an individual’s “name, address, length of service, and local and long distance toll billing records.” Id.

The FBI must provide a certification to the service provider, commonly known as a national security letter (NSL), which identifies the individual for whom it is seeking records and states that the records “are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” Id. at § 2709(b). The service provider is not obligated to comply if the records sought “solely [involve] activities protected by the First Amendment to the Constitution of the United States.” Id. The service provider may not disclose the FBI’s request to any third party if the FBI determines that doing so would threaten national security or interfere with an ongoing investigation. Id. at § 2709(c).

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ColoradoBefore stopping a vehicle, police must have reasonable suspicion that the stop will reveal evidence of a criminal or traffic offense. In order to search a vehicle or its occupants, they must have probable cause, which is subject to a higher level of scrutiny than reasonable suspicion. The Fourth Amendment guarantees these rights. A recent court case addressed whether police in a state where marijuana remains illegal may search a vehicle solely because of license plates from a state where it is legal. While the district court found that no actionable violation occurred, an appellate court found that this was a violation of the Fourth Amendment. Vasquez v. Lewis (“Vasquez I”), No. 5:12-cv-04021, mem. order (D. Kan., Nov. 26, 2014); No. 14-3278 (“Vasquez II”) (10th Cir., Aug, 23, 2016).

Defendants may move to suppress evidence obtained in violation of their Fourth Amendment rights in criminal cases. Many important decisions restricting law enforcement’s ability to conduct warrantless searches have originated from such motions. Another way to establish that a particular act or practice violates constitutional rights is through a civil lawsuit for violations of civil rights by a government agent under 42 U.S. § 1983.

It is important to note that the Vasquez rulings arise from a civil complaint, not a criminal prosecution. The burden of proof here was on the individual driver to prove that a violation occurred, rather than on the state to prove that a crime was committed. While the appellate court found that the officers violated the plaintiff’s Fourth Amendment rights, it remains to be seen whether future courts will consider this binding or persuasive precedent for criminal defendants making a similar argument.

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paper bagIn order to obtain a search warrant, a police officer must have probable cause to suspect that a search will turn up contraband, such as illegal drugs, or other evidence of criminal activity. The odor of marijuana is a very commonly claimed basis for probable cause. As more and more states adopt laws permitting marijuana use for medical or recreational purposes, courts must review whether the “odor of marijuana” is still so definitive for this purpose. Texas’ medical marijuana law is extremely limited, but many states now allow medical patients with a valid prescription to smoke marijuana. The Arizona Supreme Court recently ruled on a defendant’s challenge to a search warrant based on marijuana odor. The state appellate court reversed his conviction in 2015, citing the medical marijuana law. The state supreme court vacated most of that ruling, with some important caveats for the police. State v. Sisco, No. CR-15-02656-PR, slip op. (Ariz., Jul. 11, 2016).

No distinct definition exists for “probable cause,” and U.S. courts have adopted a variety of interpretations over the years. The U.S. Supreme Court expressly adopted a “totality of the circumstances” approach in Illinois v. Gates, 462 U.S. 213 (1983). It held that a magistrate must consider the circumstances presented in the search warrant affidavit, along with the “veracity” and knowledgeability of the person presenting the affidavit, to determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238.

Marijuana is a Schedule I controlled substance under federal law, and, until recently, it has been heavily restricted under state laws as well. Courts have generally held that the odor of marijuana weighs strongly in favor of probable cause for a search warrant, provided that the officer making the claim about the odor has sufficient knowledge and training in the matter. State laws allowing medical and even recreational use of the drug complicate this analysis, since the mere odor of marijuana does not imply criminal activity in jurisdictions where the use of the drug is permitted. This was the finding of the Arizona Court of Appeals in the Sisco case, which vacated the defendant’s sentence. 359 P.3d 1 (2015).

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