Articles Posted in Search & Seizure

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Congress originally enacted the SCA, 18 U.S.C. § 2701 et seq., in 1986, as part of a larger bill known as the Electronic Communications Privacy Act.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).

Continue reading

Before 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.

Continue reading

In 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).

Continue reading

The Fourth Amendment to the U.S. Constitution protects people’s privacy in “their persons, houses, papers, and effects.” Domesticated animals have been the subject of numerous unlawful seizure claims in animal cruelty cases. A recent decision by the Oregon Supreme Court addressed a different sort of claim. A defendant argued that police violated her Fourth Amendment rights by drawing blood from her dog without a warrant, essentially claiming that this was an unlawful search of her property. The court disagreed, ruling that a dog is not merely personal property in this legal context. State v. Newcomb, 359 Or. 756 (2016).

Texas has separate cruelty laws for “livestock animals,” including horses and cattle, Tex. Pen. Code § 42.09; and “nonlivestock animals,” which consists of any “domesticated living creature” like a dog, cat, or hamster, id. at § 42.092. Both statutes make it an offense to “fail[] unreasonably to provide necessary food, water, care, or shelter for an animal in the person’s custody.”

Texas courts have held that police may investigate suspected animal abuse or neglect on private property, without a warrant, when the animals in question are in plain view, McCall v. State, 540 S.W.2d 717 (Tex. Crim. App. 1976), but not when the animals are not visible from the street or another public vantage point, State v. Betts, 397 S.W.3d 198 (Tex. Crim. App. 2013). Police may seize an animal they suspect to be the victim of cruelty or neglect, without a warrant, under the emergency doctrine, which allows “a warrantless search and seizure when there is a need to act immediately to protect or preserve life, or to prevent serious injury.” Pine v. State, 889 S.W.2d 625, 631 (Tex. App.–Houston [14th Dist.] 1994), citing Bray v. State, 597 S.W.2d 763, 764 (Tex. Crim. App.1980).

Continue reading

The U.S. Supreme Court issued a ruling in late June 2016 that limits a critical constitutional right in criminal cases. Utah v. Strieff, 579 U.S. ___ (2016). Under the “exclusionary rule,” a court must exclude evidence obtained by police in violation of a defendant’s Fourth Amendment rights against warrantless searches and seizures. In this case, a 5-3 court decision held that the exclusionary rule did not apply when a police officer unlawfully detained someone but discovered an unrelated arrest warrant prior to searching them. Several justices sharply dissented, with one stating that this ruling creates “unfortunate incentives for the police.” Id. at 6 (J. Kagan, dissenting).

A defendant may move to suppress evidence allegedly obtained in violation of their rights. This type of evidence is sometimes known as the “fruit of the poisonous tree,” since it derives from an unconstitutional action. See Nardone v. United States, 308 U.S. 338, 392 (1939); Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385 (1920). The court has identified multiple exceptions to the exclusionary rule, including one known as the “attenuation doctrine.” A court is not required to exclude evidence if “the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression.” Strieff, slip op. at 1.

Police were surveilling a house in 2006, looking for suspected drug activity based on an anonymous tip, when they saw the defendant in Strieff enter the house. When he left the house, an officer stopped him to ask for identification. A warrant check showed that he had an outstanding arrest warrant for a traffic violation. The officer arrested the defendant, and a search of his person revealed drugs and drug paraphernalia.

Continue reading

A conflict that developed in early 2016 between the federal government and Apple, the manufacturer of the smartphone model known as the iPhone, has important implications for Fourth Amendment rights in digital technology. FBI investigators sought to compel the company’s assistance in accessing an iPhone’s encrypted contents. In the Matter of the Search of an Apple iPhone Seized during the Execution of a Search Warrant on a Black Lexus IS300 (“In re iPhone”), No. 5:15-mj-00451, ex parte application (C.D. Cal., Feb. 16, 2016). Apple’s CEO refused to comply, stating that it would have a far broader impact than the case at hand, and it would likely put the data security of all of its users at risk. Although the government dropped the case when it found an alternative means of accessing the phone’s contents, a similar situation is certain to occur at some point in the future.

The cellphone at the center of the current case was found in a vehicle belonging to a suspect in a December 2015 mass shooting in San Bernardino, California, which involved alleged terrorist ties. The two shooting suspects were killed by police shortly after opening fire on an office holiday party. Federal law enforcement investigators sought access to the iPhone, but they were unable to do so without a four-digit passcode. The phone’s security features would delete its contents after 10 consecutive unsuccessful login attempts. The federal government therefore sought Apple’s help.

When Apple refused the FBI’s request, the government filed an ex parte application with the court. It argued that the type of order it was requesting was within the court’s authority under the All Writs Act (AWA), 28 U.S.C. § 1651, a statute dating back to 1789. The AWA empowers federal courts to issue orders to third parties if they are “necessary and appropriate” in a case within their jurisdiction.

Continue reading

As mobile digital technology becomes a constant feature of our lives, we place a great deal of trust—both as citizens and as consumers—in the companies that manufacture and maintain our mobile devices. Mobile phones, particularly smartphones, host massive amounts of personal information, which could be vulnerable to hackers without robust security measures. Maintaining the privacy of this information against warrantless intrusions by law enforcement is also critically important. Many smartphones use encryption to protect their data, and the security they provide is supposedly strong enough that even the manufacturers cannot obtain access without the phone owner’s permission. This led to a controversy in early 2016, when a federal court ordered Apple, creator of the iPhone, to help the FBI beat its encryption system on one particular device. In the Matter of the Search of an Apple iPhone, No. 5:15-mj-00451, order (C.D. Cal., Feb. 16, 2016). The company fought back, but this is not likely to be the last time law enforcement seeks access to private, encrypted devices.

The court decisions that interpret the extent of Fourth Amendment protections in our legal system have barely begun to register the existence of mobile phones and other digital technology. The first Supreme Court cases addressing Fourth Amendment rights and cell phones only appeared within the last few years. The court first addressed whether police may access the contents of a mobile phone without a search warrant, incident to an arrest, in Riley v. California, 573 U.S. ___ (2014). It found that a warrantless search under these circumstances violates the Fourth Amendment.

Continue reading

As the use of cell phones and other mobile devices has become increasingly common, police have looked for ways to make use of the information that mobile devices routinely emit. The point at which attempts to access data from mobile devices become a “search,” within the meaning of the Fourth Amendment, remains a matter of debate, but some types of technology clearly seem more intrusive than others. Devices known as cell-site simulators, also known by the trade name “stingrays,” are particularly controversial. Rather than obtain data that a mobile device has already sent out, a stingray essentially tricks a mobile device into sending out data by mimicking a cell tower. Courts around the country, most recently in Maryland, have ruled that this constitutes a search requiring a warrant.

A key question in determining whether a particular police activity requires a warrant is whether it involves something in which people have a “reasonable expectation of privacy.” The “third party doctrine” holds that people have no reasonable expectation of privacy in information that they willingly provide to someone else. The U.S. Supreme Court held in Smith v. Maryland, 442 U.S. 735 (1979), for example, that police did not need a warrant to obtain a record of someone’s phone calls, known as a pen register, from the phone company, since the person voluntarily conveyed that information to the phone company by dialing the numbers.

Technology has changed a great deal since Smith was decided, but it seems possible to draw a clear distinction between similar modern activities, which still include phone calls, and activities that do not necessarily reveal information to others. Federal law authorizes law enforcement to use pen registers or trap and trace devices, which log the numbers of incoming phone calls, if they obtain a warrant or a court order. 18 U.S.C. § 3121 et seq.

Continue reading

Civil forfeiture, the process by which the government can seize and take title to property allegedly involved in criminal activity, has become a widespread—and controversial—practice around the country. Some states have enacted laws requiring a criminal conviction before the state can initiate a forfeiture claim, but federal law and the laws of Texas still allow civil forfeiture even when the underlying criminal act does not result in any convictions. A study released in late 2015 by the Institute for Justice (IJ) offers a rather incendiary set of statistics regarding forfeiture by federal law enforcement agencies. It alleges that the Department of Justice (DOJ) and Department of the Treasury (DOT) obtained more property through forfeiture than was stolen by burglars during 2014. While this comparison is far from perfect, it illustrates the scale of forfeiture at the federal level.

Federal law allows the government to bring a civil forfeiture claim to take title to “any property, real or personal…constituting, derived from, or traceable to” various federal criminal offenses. 18 U.S.C. § 981(a)(1). The provisions for civil forfeiture in Texas are similar to the federal statute. A property owner can prevent the forfeiture by appearing at the forfeiture hearing and establishing that the property in question was used “without [their] effective consent,” or was stolen before the commission of the alleged offense. Tex. Code Crim. P. Art. 59.02(h)(1). This often proves difficult, however, since the property owner is not necessarily a required party to a forfeiture proceeding, and therefore is not entitled to notice of the hearing. The names of many forfeiture cases demonstrate this. See, e.g., One 1991 Chevrolet Blazer, et al v. State, 905 S.W.2d 443 (Tex. App.—Amarillo 1995); $18,800 in U.S. Currency, et al v. State, 961 S.W.2d 257 (Tex. App.—Houston [1st Dist.] 1997).

Nothing in federal or state law requires a criminal conviction prior to, or in conjunction with, a civil forfeiture proceeding. The U.S. Supreme Court has even held that an acquittal does not preclude the forfeiture of property related to the alleged offense. United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984). That court and Texas’ highest criminal court have also held that the Double Jeopardy Clause of the Sixth Amendment does not bar a civil forfeiture action after a conviction. United States v. Ursery, 518 U.S. 267 (1996); Fant v. State, 931 S.W.2d 299 (Tex. Crim. App. 1996).

Continue reading

The Sixth Amendment states that the government may not deny a person representation by counsel in a criminal proceeding. The U.S. Supreme Court recently issued a decision in a case brought by someone who could afford an attorney but was unable to access funds to pay legal fees because the government had frozen their assets before trial. Luis v. United States, 578 U.S. ___ (2016). Prosecutors even admitted that the funds in question were not tied to any alleged criminal activity. The court held that this violated the Sixth Amendment right to counsel.

Federal criminal law allows the government to obtain an injunction freezing a defendant’s assets in cases involving alleged health care or banking offenses. 18 U.S.C. § 1345(a)(2). An injunction issued under this section is not necessarily limited to assets that prosecutors can demonstrate are derived from, or otherwise connected to, an alleged offense. A defendant may also be enjoined from using “property of equivalent value” to any assets allegedly linked to an offense. Id. at § 1345(a)(2)(B)(i).

Prosecutors must file a separate civil action in order to obtain an injunction under § 1345. This type of proceeding bears some similarities to civil forfeiture under federal law. 18 U.S.C. § 981. Both types of cases involve civil claims aimed at assets, but the goal of a forfeiture proceeding is for the government to take title to property involved in a criminal offense. An injunction under § 1345 prevents a defendant from disposing of assets that might be needed as evidence in a prosecution, or to satisfy a future judgment against a defendant. Unfortunately, this type of injunction can potentially prevent a defendant—who has not been convicted of a crime—from accessing any funds at all.

Continue reading