Category: Criminal Procedure

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The Vanishing Distinction Between Real-time and Historical Location Data

A congressional inquiry, which recently revealed that cell phone carriers disclose a huge amount of subscriber information to the government, has increased the concern that Big Brother tracks our cell phones. The New York Times reported that, in 2011, carriers responded to 1.3 million law enforcement demands for cell phone subscriber information, including text messages and location information. Because each request can acquire information on multiple people, law enforcement agencies have clearly obtained such information about many more of us than could possibly be worthy of suspicion. Representative Markey, who spearheaded the inquiry, has followed up with a thorough letter to Attorney General Holder that asks how the Justice Department could possibly protect privacy and civil liberties while acquiring such a massive amount of information.

Among many important questions, Representative Markey’s letter asks whether the DOJ continues to legally differentiate between historical (those produced from carrier records) and real-time (those produced after an order is issued) cell site location information and what legal standard the DOJ meets for each (or both). Traditionally, courts have accorded less protection to historical location data, which I have criticized as a matter of Fourth Amendment law in my amicus briefs and in my scholarship. The government’s applications for historical data in the Fifth Circuit case, which is currently considering whether agents seeking historical location data must obtain a warrant, provide additional evidence that the distinction between real-time and historical location data makes no sense.

Some background. Under the current legal rules for location acquisition by law enforcement, which are complex, confusing, and contested, law enforcement agents have generally been permitted to acquire historical location data without establishing probable cause and obtaining a warrant. Instead, they have had to demonstrate that the records are relevant to a law enforcement investigation, which can dramatically widen the scope of an inquiry beyond those actually suspected of criminal activity and yield the large number of disclosures that the recent congressional inquiry revealed. Generally, prospective (real-time) location information has required a higher standard, often a warrant based on probable cause, which has made it more burdensome to acquire and therefore more protected against excessive disclosure.

Some commentators and judges have questioned whether historical location data should be available on an easier to satisfy standard, positing the hypothetical that law enforcement agents could wait just a short amount of time for real-time information to become a record, and then request it under the lower standard. Doing so would clearly be an end run around both the applicable statute (ECPA) and the Fourth Amendment, which arguably accord less protection to historical information because it is stored as an ordinary business record and not because of the fortuity that it is stored for a short period of time.

It turns out that this hypothetical is more than just the product of concerned people’s imagination. The three applications in the Fifth Circuit case requested that stored records be created on an ongoing basis. For example, just after a paragraph that requests “historical cell-site information… for the sixty (60) days prior” to the order, one application requests “For the Target Device, after receipt and storage, records of other information… provided to the United States on a continuous basis contemporaneous with” the start or end of a call, or during a call if that information is available. The other two applications clarify that “after receipt and storage” is “intended to ensure that the information” requested “is first captured and recorded by the provider before being sent.” In other words, the government is asking the carrier to create stored records and then send them on as soon as they are stored.

To be clear, only one of the three applications applied for only a relevance-based court order to obtain the continuously-created stored data. That court order, used for historical data, has never been deemed sufficient for forward-looking data (as the continuously-created data would surely be as it would be generated after the order). The other two applications used a standard less than probable cause but more than just a relevance order. It is not clear if the request for forward-looking data under the historical standard was an inadvertent mistake or an attempt to mislead. But applications in other cases have much more clearly asked for forward-looking prospective data, and didn’t require that data to be momentarily stored. Why would the applications in this case request temporary storage if not at least to encourage the judge considering the application to grant it on a lower standard?

I am optimistic that the DOJ’s response to Representative Markey’s letter will yield important information about current DOJ practices and will further spur reform. In the meantime, the government’s current practice of using this intrusive tool to gather too much information about too many people cries out for formal legal restraint. Congress should enact a law requiring a warrant based on probable cause for all location data. It should not codify a meaningless distinction between historical and real-time data that further confuses judges and encourages manipulative behavior by the government.

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Is There a Reasonable Expectation of Privacy in Illegal Activity?

My previous blog posts on drug sniffing dogs have flirted with this issue. Commenters seem most inflamed by it. Yet, it is dogma that there is no Fourth Amendment right to privacy in possessing contraband. The rationales animating the Fourth Amendment currently protect those who are ultimately found to possess contraband only as a way to shield the innocents, who do not possess contraband but may have other embarrassing items in their possession. According to the Supreme Court, we protect the guilty only to safeguard the innocent from intrusive government action.

Because the Court has held that there is no reasonable expectation of privacy in contraband, intrusions that are “binary,” or test only for the presence or absence of contraband, do not implicate Fourth Amendment rights. Thus, police officers may use drug sniffing dogs, test white powder for cocaine, or use child pornography detection software to search only for digital contraband without any suspicion justifying their actions. (This does not mean that law enforcement can use any means to do so, and Florida v. Jardines will test how intrusive binary searches can be, but I do not believe that Jardines will overturn the proposition that no suspicion is needed before using a drug sniffing dog in a less intrusive way.)

The Seventh Circuit has even extended this logic to hold that there is no reasonable expectation of privacy in illegal activity, no matter where it occurs. The Court of Appeals in United States v. Brock, 417 F.3d 692 (7th Cir. 2005), allowed a canine sniff at the door to a man’s room once his roommate consented to allow the police access to the home. This would be one way of deciding Florida v. Jardines, although I doubt the Supreme Court will go as far as the Seventh Circuit. If you’re interested in the “contraband exception” to the Fourth Amendment, check out Timothy MacDonnell, Orwellian Ramifications: The Contraband Exception to the Fourth Amendment, 41 U. MEM. L. REV. 299 (2010).

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Stanford Law Review Online: Regulating Through Habeas

Stanford Law Review

The Stanford Law Review Online has just published a Note by Doug Lieb entitled Regulating Through Habeas: A Bad Incentive for Bad Lawyers?. The author discusses the potential pitfalls in a pending DOJ rule that provides for fast-track review of a state’s death row habeas petitions if the state implements certain sanctions for lawyers found to be legally ineffective:

The most important—and most heavily criticized—provisions of the Antiterrorism and Effective Death Penalty Act restricted federal courts’ ability to hear habeas petitions and grant relief to prisoners. But the 1996 law also included another procedural reform, now tucked away in a less-traveled corner of the federal habeas statute. It enables a state to receive fast-track review of its death row prisoners’ federal habeas petitions if the U.S. Attorney General certifies that the state provides capital prisoners with competent counsel in state postconviction proceedings.

Now, a pending Department of Justice (DOJ) rule sets forth extensive criteria for states’ certification for fast-track review. Piggybacking on a federal statute that does the same, the proposed DOJ rule encourages states to adopt a seemingly commonsense measure to weed out bad lawyers: if an attorney has been found legally ineffective, remove him or her from the list of qualified counsel eligible for appointment. Unfortunately, such removal provisions may do more harm than good by jeopardizing the interests of ineffective lawyers’ former clients. This Note explains why removal provisions can be counterproductive, argues that rewarding the implementation of these provisions with fast-track habeas review is especially unwise, and offers a few recommendations.

He concludes:

The lesson, at a minimum, is that policymakers should be wary of one-off regulatory interventions into indigent defense, considering the hydraulic pressure that a new requirement might exert elsewhere in the system. Leaders within the public defense bar might also wish to think carefully about their expressions of support for ineffective-attorney-removal provisions. And, while some scholars have considered the ethical obligations of predecessor counsel when faced with an ineffectiveness claim, rigorous empirical study of lawyers’ actual responses to allegations of ineffectiveness may be needed to develop sound policy. Do most attorneys actually understand themselves to owe continuing duties to former clients, or do most do what they can to protect their professional reputations against charges of deficient performance? (And are those with the latter attitude more likely to be ineffective in the first place?) The practical effect of regulatory interventions, including removal provisions, turns on the answer to these questions.

None of this is to suggest that it’s in any way acceptable for an ineffective lawyer, let alone an incorrigibly awful one, to represent a capital—or non-capital—defendant or prisoner. The point is the opposite. Even a well-intentioned patchwork of regulation through habeas is no substitute for an adequately funded system that trains, compensates, and screens counsel appropriately. If kicking ineffective lawyers off the list may do more harm than good, the goal should be keep them off the list to begin with.

Read the full article, Regulating Through Habeas: A Bad Incentive for Bad Lawyers? by Doug Lieb, at the Stanford Law Review Online.

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Florida v. Jardines: How is the Supreme Court going to clean up its drug sniffing dog mess?

Briefs and amicus briefs are being filed in a Supreme Court case that could have a major impact on Fourth Amendment jurisprudence in order to resolve a major mess. The question in Florida v. Jardines is whether a police officer can use a drug sniffing dog at someone’s door to determine if there is contraband inside the home. The mess is a result of the tension between the Supreme Court’s holdings, the reality of using drug sniffing dogs, and our intuitions about privacy.

First, the Supreme Court has held that, when performed in a minimally invasive way, like at an airport or outside one’s car, the use of a drug detection dog is not considered a “search” that implicates the Fourth Amendment or requires any suspicion. This is largely due to the fact that the use of drug sniffing dogs is considered a “binary search,” which either detects or fails to detect the presence of contraband. Because the Court has held in no uncertain terms that we have no legitimate expectation of privacy in contraband (I’m not as certain about this proposition when considering the history and purpose of the Fourth Amendment), a device or dog that detects only whether contraband is present or absent does not invade any expectations of privacy.

However, as Professor Leslie Shoebotham’s amici curiae brief (detailed on EvidenceProf blog) argues, drug sniffing dogs often detect the presence of  molecular compounds found in both contraband and innocent items, such as vinegar or soap.  Another way of framing this is that drug sniffing dogs are not binary because of their tendency to false positive. And there we have Mess Number 1: the Supreme Court’s drug sniffing dog jurisprudence is based on the false idea that the use of a drug sniffing dog is not a search because it detects only the presence or absence of contraband. It is unlikely that the Supreme Court in Jardines will reverse its firmly established position that the use of drug sniffing dogs is not a search. Instead, the Court will likely rely on the holding that a dog binarily alerts or does not alert to the presence of contraband, but will treat as a separate question whether a dog is accurate enough in its alert to give the police probable cause to obtain a warrant and conduct a full search of the home.

Thus, Mess Number 1 is more easily resolved than Mess Number 2, which concerns our intuition. It FEELS wrong for the police to march up to random homes and sniff doors with a drug detection dog. Yet, if the use of a drug detection dog does not actually infringe upon privacy rights or require any suspicion, that’s exactly what could happen. How is the Supreme Court going to distinguish a car or a suitcase from a house if the use of a dog is not a search at all?

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Stanford Law Review Online: How the War on Drugs Distorts Privacy Law

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Jane Yakowitz Bambauer entitled How the War on Drugs Distorts Privacy Law. Professor Yakowitz analyzes the opportunity the Supreme Court has to rewrite certain privacy standards in Florida v. Jardines:

The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. The case, Florida v. Jardines, has privacy scholars abuzz because it presents two possible shifts in Fourth Amendment jurisprudence. First, the Court might expand the physical spaces rationale from Justice Scalia’s majority opinion in United States v. Jones. A favorable outcome for Mr. Jardines could reinforce that the home is a formidable privacy fortress, protecting all information from government detection unless that information is visible to the human eye.

Alternatively, and more sensibly, the Court may choose to revisit its previous dog sniff cases, United States v. Place and Illinois v. Caballes. This precedent has shielded dog sniffs from constitutional scrutiny by finding that sniffs of luggage and a car, respectively, did not constitute searches. Their logic is straightforward: since a sniff “discloses only the presence or absence of narcotics, a contraband item,” a search incident to a dog’s alert cannot offend reasonable expectations of privacy. Of course, the logical flaw is equally obvious: police dogs often alert when drugs are not present, resulting in unnecessary suspicionless searches.

She concludes:

Jardines offers the Court an opportunity to carefully assess a mode of policing that subjects all constituents to the burdens of investigation and punishment, not just the “suspicious.” Today, drug-sniffing dogs are unique law enforcement tools that can be used without either individualized suspicion or a “special needs” checkpoint. Given their haphazard deployment and erratic performance, police dogs deserve the skepticism many scholars and courts have expressed. But the wrong reasoning in Jardines could fix indefinitely an assumption that police technologies and civil liberties are always at odds. This would be unfortunate. New technologies have the potential to be what dogs never were—accurate and fair. Explosive detecting systems may eventually meet the standards for this test, and DNA-matching and pattern-based data mining offer more than mere hypothetical promise. Responsible use of these emerging techniques requires more transparency and even application than police departments are accustomed to, but decrease in law enforcement discretion is its own achievement. With luck, the Court will find a search in Jardines while avoiding a rule that reflexively hampers the use of new technologies.

Read the full article, How the War on Drugs Distorts Privacy Law by Jane Yakowitz Bambauer, at the Stanford Law Review Online.

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KSM’s Resistance Defense

Jenny Carroll is a former public defender and Prettyman Fellow. She currently teaches criminal procedure, criminal law and evidence at Seton Hall Law School.

Last Saturday, Khalid Sheikh Mohammed (“KSM”), the self-proclaimed mastermind of the September 11 attacks, and four others were scheduled to be arraigned before a military commission in Guantanamo Bay, Cuba. Things didn’t go exactly as the government had planned.  Instead of pleading, the defendants resisted.  KSM and the rest of the defendants refused to answer the judge’s questions. One defendant started praying, and another defendant shouted that he was concerned for his own and the other defendants’ safety.  The behavior turned the arraignment – usually a fairly brief proceeding – into a disorderly 13-hour hearing.

These are obviously unusual defendants. They claim to have planned a devastating act of terrorism that forever changed our nation’s sense of security and itself.  They have been held by their self-proclaimed enemy for nearly ten years awaiting trial.  During that time, evidence against them was acquired through mechanisms reminiscent of the Spanish Inquisition — according the military’s own records, KSM was water boarded a total of 183 times in a single month.  When their day in court finally arrived, the venue was not the federal court in New York, the most logical jurisdiction and the one Attorney General Eric Holder would have preferred, but a military commission.  And while these commissions may have improved markedly since their inception in the Bush Administration, they remain shrouded in mystery with uncertain procedural or Constitutional protections.

Although these are unusual defendants in an unusual case, their strategy of resistance is not entirely new.  The strategy declines to recognize the authority of the court and calls into question the legitimacy of the very system that claims the power to adjudicate.  A long line of political dissidents and activists have sought to transform their criminal trials into a commentary on the system itself.  In my forthcoming article, The Resistance Defense, I examine the implications of this defense.  As I suggest there, the defense of resistance highlights two compelling but under-explored components of criminal law.  First, the procedural rights that compose the right to a defense are more than individual rights; they have a communal value.  The defendant may utilize them to challenge the accusation, but the community relies on them as well to legitimate the process and outcome.  If a defendant forgoes these protections, the process is curtailed and questions of its legitimacy inevitably follow.  Second, these procedural rights have a substantive component.  They help to define notions of guilt and appropriate punishment.  If a defendant chooses to forgo these rights, they effectively alter what it means to be convicted or to deserve punishment, skewing the meaning of the law itself.

In the context of these cases, the resistance defense raises larger questions:  What do we really have to lose by trying this case, or any of the military commission cases, in the federal court system that we trust every day with our most difficult cases and complex constitutional issues?  Why couldn’t New York, the city that no matter what seems to endure and constantly rise ever higher, not handle the trial of the men accused of killing so many of its citizens?   I, like everyone else, have heard the warnings of the high costs of security and risk of reprisals.  But in allowing these trials to remain in these military commissions so besieged on all sides by questions of their legitimacy and sufficiency, have we lost something is more difficult to quantify but is infinitely more valuable?  Have we struck a blow against ourselves as frightening as those imagined by KSM or anyone else who would plot against us?  Have we abandoned the procedure and Constitution that we claimed to defend because we were more afraid of the men who would challenge it?  In some cruel twist, have we forgotten the very freedom we claimed we were defending?

3

Where Have All Our Fourth Amendment Rights Gone?

The Supreme Court will decide on Friday whether to review Virginia v. Banks, a case that could potentially expand the “exigent circumstances” exception to the warrant requirement of the Fourth Amendment. The Supreme Court could also use this case as a vehicle to further limit the exclusionary rule, which precludes admission of the fruits of Fourth Amendment violations into evidence at trial. The Virginia Court of Appeals held that police cannot use evidence found in a suspect’s jacket, grabbed by police with the intention of keeping him warm after arresting him in his home, when they have no warrant or other constitutional reason to search and seize the jacket. I fear that the Supreme Court, following its trend of eviscerating our Fourth Amendment rights, will find a way for courts to admit into evidence the gun found in Mr. Banks’s jacket.

I’ve been pondering some Hamlet-like questions. Is it better for the Court to candidly admit that it wants to tie Fourth Amendment violations solely to police bad faith, and thus undo many applications of the exclusionary rule that apply regardless of the officer’s intentions (this is where the Court seems to be going, unfortunately), or is it better for the Court to slowly chip away at Fourth Amendment rights?  It’s hard to see how this case presents a true exigency, but instead of frankly announcing that the exclusionary rule applies only in cases of bad faith by the police, the Court may squeeze Banks into the exigent circumstances exception.  More of our Fourth Amendment rights will remain in the latter scenario, because the Court won’t invalidate the exclusionary rule jurisprudence, but the doctrine will be disingenuous and incoherent. And, is it better to have Fourth Amendment rights that cannot be enforced through the exclusionary rule than never to have any Fourth Amendment rights at all? Maybe we should incentivize police officers, by not applying the exclusionary rule, to perform nice gestures like grabbing a suspect’s coat (without permission from the suspect). To exclude or not to exclude: that is the question.

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Drug Sniffing Dogs and Quantifying Probable Cause, Redux

My first post on the reliability of drug detection dogs was linked to by EvidenceProf Blog, where Colin Miller makes an excellent point about why quantifying probable cause may be more feasible than quantifying proof beyond a reasonable doubt. Although an artificial imposition of a numeric value on the proof beyond a reasonable doubt standard will likely confuse jurors, writes Miller, we believe in many contexts that judges are better equipped to navigate complex evidentiary matters.

Since judges- not jurors- decide whether probable cause justifies a particular search, quantifying probable cause might not unearth such a parade of horribles, the fear of which has imprisoned the probable cause standard in fuzziness for so long.  We may need to quantify probable cause to decide if a positive alert by a drug sniffing dog gives the police enough suspicion to conduct a full search of a person’s car, or suitcase, or of the person’s person.

Let me be clear. I am not arguing (at least for now) that every probable cause determination should be calculated according to a mathematical algorithm where the evidence has to yield a certain likelihood of criminal behavior (40%?, 50%?, 51%?) before probable cause is satisfied. However, if the Supreme Court affirms the Florida Supreme Court’s holding that evidence of a dog’s false positive rate must be admitted as part of the probable cause inquiry, courts will have to grapple with some quantification of probable cause. Unless the Supreme Court decides that a positive alert by a drug detection dog is never, on its own, sufficient to establish probable cause, courts will confront situations where a dog’s positive alert is the sole reason to suspect someone of possessing drugs. This could occur at an airport, or at a drunk driving checkpoint, or anywhere where drug dogs are permitted to routinely sniff individuals without suspicion. In that case, courts will have to decide if the dog sniff alone is sufficient to establish probable cause.

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Stanford Law Review, 64.3 (2012)

Stanford Law Review

Volume 64 • Issue 3 • March 2012

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Fifth Circuit Considers Constitutionality of Cell Site Location Data

Department of Justice litigators just filed a reply brief in an exciting but complex case in the Fifth Circuit that concerns law enforcement access to cell site location data.  As amicus curiae, I hope to deepen readers’ understanding of the basic issues in the case and also to provide some insider’s insights.  This blog post will furnish the background that later postings will draw upon.

The litigation began when Magistrate Judge Smith rejected three government applications for cell site location data that did not purport to satisfy probable cause.  I highly recommend Judge Smith’s thoughtful opinion that holds that agents must obtain a warrant to compel service providers to disclose a target subscriber’s stored records of cell phone location data.  Justice Department lawyers appealed Judge Smith’s denial, as well as the District Court’s order that agreed with Judge Smith, because they claim the right to compel disclosure whenever they satisfy the “relevance standard” under 18 U.S.C. § 2703(d) (“D order”).

My amicus brief argues that the Fourth Amendment requires a probable cause warrant for all location data, which is similar to the argument in EPIC’s amicus briefEFF and ACLU made that argument as well, and they also suggested that the Fifth Circuit could find that the Stored Communications Act gives magistrate judges the discretion to require either a warrant or a D order.  EFF and ACLU previously advocated the discretionary approach in the Third Circuit, and the Third Circuit recently adopted it in the only federal appellate decision on the matter.   Orin Kerr’s amicus brief argued that magistrate judges lack the authority to deny government applications on the grounds of unconstitutionality.

The case’s importance derives from the lack of appellate guidance on law enforcement acquisition of cell site location data, which has become commonplace, according to the ACLU’s recent release of numerous public records.  The ACLU’s report reveals a wide array of procedures, with some practices clearly lacking appropriate protections against misuse.  Congress currently sits on bills that would clarify the standards; one would require a warrant for access to all location data; another would require a warrant only for prospective location data and not for stored data.

In future postings I will discuss how low procedural hurdles as well as a lack of notice and transparency make location data acquisition a threat to civil liberties.  I will also discuss the continued use of arbitrary distinctions (such as between historical and prospective data) that unduly complicates the law and limits privacy protections.  I will argue, for example, that the Supreme Court’s Jones case concerning GPS tracking in real-time governs historical location data.  With luck, I will even shed some light on just what location data is.  Please stay tuned.