Category: Criminal Procedure

14

The Reliability of Drug Sniffing Dogs

Of the many things that make my Criminal Procedure students cynical about the Supreme Court, perhaps the most frustrating is that the Court has refused to quantify the probable cause standard. The Supreme Court’s grant of certiorari last week in Florida v. Harris gives the Court the perfect opportunity to at least place probable cause within some numerical band.

Harris is a particularly good vehicle for making the probable cause standard less fuzzy. In Harris, the Florida Supreme Court confronted the issue of when a dog’s positive alert gives the police probable cause to search a vehicle. Unlike in most assessments of probable cause, which involve informants or suspicious seeming individuals, police have data that quantifies the accuracy of drug sniffing dogs. A dog’s field history includes its rate of false positives, when a dog alerts to the smell of drugs that are not actually present in the vehicle. The Florida Supreme Court held that a dog’s field history must be introduced as part of the probable cause inquiry. If the lower court’s opinion is upheld, the Supreme Court should tell us what sort of false positive rate is too unreliable to permit a full search of a car.

Courts consistently and expressly eschew technical conceptions of probable cause in order to provide police officers with flexibility to exercise their judgment in unfolding situations. In addition, courts focus on whether an officer has a reasonable belief that a suspect has committed or is committing a crime. This metric allows for probable cause to be found in situations where one reasonable officer might assess an 80% likelihood that a suspect is driving drunk, for example, even if another reasonable officer might think there is only a 40% likelihood. We might be tempted to assume the courts require that a reasonable officer be able to believe a crime has been committed by greater than a 50% likelihood, but this has not been made explicit.  All officers must prove to a court assessing a vehicle search is a reasonable ground for belief of guilt.  Further, when a court is making a probable cause determination for itself in determining if a warrant should issue, it must decide only if there is a “fair probability that contraband or evidence of a crime will be found in a particular place.”  What is a fair probability?

In the context of drug detection dogs, where we have actual data on reliability, assigning a numerical value to probable cause — or at least to the maximum false positive percentage upon which an officer can rely — would add much needed clarity to Fourth Amendment law. It also does not undermine police officers’ ability to use their intuition, because the event precipitating a search is not an officer’s informed judgment, but the alert from a dog.

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1

Kovarsky on Martinez and the Roberts Post-Conviction Project

Lucky for us, my brilliant colleague Lee Kovarsky took some time out of his whirlwind schedule to help walk us through the Supreme Court’s post-conviction decision in Martinez v. Ryan.  I’ve blogged about Professor Kovarsky before–he is an expert on habeas corpus whose newest work, entitled “A Constitutional Theory of Habeas Power,” will be published by the Virginia Law Review.  He is also amidst writing a textbook  for Foundation Press entitled “Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation” (forthcoming 2013) (with Brandon Garrett).  Professor Kovarsky recently argued a habeas case before the Fifth Circuit and helped write the ABA Amicus Brief in Martinez.

Martinez and the Roberts Post-Conviction Project*

I. Overview

Almost under the radar, the Roberts Court has reconfigured the way this country conducts post-conviction review. Years from now, we may consider a case decided this Tuesday, Martinez v. Ryan, a seminal entry in that shift. Perhaps Martinez was reported so sparingly because it was so complicated, but its complexity shouldn’t obscure its importance. (Stephen Vladeck has a characteristically insightful explanation of Martinez up on SCOTUSBLOG.)

The “Roberts Post-Conviction Project” has two moving parts. First, the Project involves a series of decisions promoting state collateral review as the “main event” for post-conviction challenges. Second, and at the same time, the Project has generated incentives for states to provide more process and better lawyers in those proceedings. The Project is hardly a return to thick, Warren-era habeas review of state criminal procedure, but it does slightly moderate one rhetorical excess of Rehnquist post-conviction jurisprudence—the proposition that state judges are always as good as their federal counterparts at enforcing federal constitutional rights.

Criminal process for convicted state prisoners subdivides roughly into the following phases: (1) direct appellate review of the conviction; (2) a state post-conviction disposition subject to state appellate review; and (3) a federal habeas proceeding with federal appeals. For decades, Congress and the Supreme Court have been recalibrating federal habeas review to defer to state post-conviction outcomes. Most recently, in Cullen v. Pinholster (2011), the Supreme Court held that (generally) federal habeas relief could issue only on evidence presented to a state post-conviction court.

The problem is that, for decades, state post-conviction review—the first place that a prisoner may assert many important constitutional challenges to a conviction—has been a legal swamp of vague rules, spotty process, and substandard representation. Many prisoners litigate state post-conviction claims pro se, and many counseled prisoners enjoy no constitutional entitlement to competent representation. Even for strong constitutional claims, forfeiture often follows a state prisoner’s failure to successfully navigate unthinkably complex state post-conviction law either (1) without representation or (2) with a bad lawyer that the state underpays.

And federal habeas law imposes all sorts of severe penalties when state post-conviction representation goes predictably awry. For instance, the federal limitations statute was—until recently—unforgiving about lost portions of the limitations period attributable to even the most appalling state post-conviction representation. Moreover, at least pre-Martinez, when incompetent state post-conviction representation forfeited a claim on a state procedural ground, that claim would be inexcusably defaulted on federal habeas review.

The Court heard Martinez v. Ryan on October 4, 2011. Twenty-four State Attorneys General signed an Amicus Brief in support of Arizona, as did the United States. By mid-March 2012, the Court had still failed to announce a decision. It was clear that something serious was happening, but nobody had a good sense of what that something was. As it turns out, the prisoner won pretty big. Although the opinion stopped short of announcing a constitutional right to a state post-conviction attorney, its decision will nonetheless improve the representation provided at that phase of criminal process.

Kennedy wrote, and was joined by Roberts, Ginsburg, Breyer, Alito, Sotomayor, and Kagan. (Scalia and Thomas dissented.) The head count is a pleasant surprise for those who remain skeptical that Roberts and Alito are willing to break meaningfully from Scalia and Thomas on the harsh application of procedural rules on federal habeas review. Read More

0

Stanford Law Review, 64.2 (2012)

Stanford Law Review

Volume 64 • Issue 2 • February 2012

Articles
National Security Federalism in the Age of Terror
Matthew C. Waxman
64 Stan. L. Rev. 289

Incriminating Thoughts
Nita A. Farahany
64 Stan. L. Rev. 351

Elective Shareholder Liability
Peter Conti-Brown
64 Stan. L. Rev. 409

Note
Harrington’s Wake:
Unanswered Questions on AEDPA’s Application to Summary Dispositions

Matthew Seligman
64 Stan. L. Rev. 469

Comment
Boumediene Applied Badly:
The Extraterritorial Constitution After Al Maqaleh v. Gates

Saurav Ghosh
64 Stan. L. Rev. 507

1

Did Spitzer and Levitt Stoke the Financial Crisis?

Many are to blame for the financial crisis and plenty of reports and analyses have been written detailing assorted causes and assigning responsibility.  Overlooked in accepted versions of events are two fateful decisions and their context: Eliot Spitzer’s overzealous drive to oust Hank Greenberg from heading AIG, and Arthur Levitt’s governance reforms implemented at AIG shortly thereafter.

The ouster of Greenberg and transformation of AIG are pivotal events because before the ouster and reforms, AIG wrote few of the credit default swaps that became the centerpiece of the crisis, but wrote increasingly risky and unhedged swaps thereafter.  Many informed people consider it extremely unlikely or nearly impossible to imagine that, had AIG still been run by Greenberg under its traditional governance structures, the swap business at AIG could have gotten so out of hand. 

In that telling, Spitzer’s aggressive tactics to have Greenberg ousted and Levitt’s ambitious reforms were at least indirect contributing causes of the crisis and its severity.  The actions and ideas therefore deserve greater scrutiny than they have been given.  

In Spitzer’s case, it’s important to highlight how he took many steps that were at least dubious as a matter of prosecutorial ethics; in Levitt’s case, the reforms were extreme departures from traditional corporate governance. Potential lessons include the importance of prosecutors not overstepping their bounds and the value of adhering to some traditions in the development of corporate governance. Read More

2

The Potentially Profound Implications of United States v. Jones

I must respectfully disagree with a recent post by Renee Hutchins on our blog about the recent U.S. Supreme Court case, United States v. Jones.    She concludes:

With full knowledge of this history, the Jones decision should give us pause. It is widely believed that the test the court enunciated nearly a half-century ago better protects the privacy interest of citizens in the face of advancing technology. By reverting to the language of trespass, the court this week took a step back when it could have taken a bold step forward. Moreover, by failing to engage the admittedly “thorny” question of whether the monitoring of the GPS device alone violated Mr. Jones’ constitutional rights, the court missed a momentous opportunity to speak clearly in a brave new world.

Although it is true that the majority opinion is narrow, the concurring opinions indicate five votes for a broader more progressive view of the Fourth Amendment, one which breaks from some of the Court’s antiquated notions of privacy. When I read Jones, I see cause for celebration rather than disappointment.

I have long argued that the Court has failed to understand that aggregated pieces of information can together upend expectations of privacy. See Privacy and Power 1434-35 (2001), The Digital Person 44-47 (2004), Understanding Privacy 117-21 (2008).  I have also critiqued what I call the “secrecy paradigm” where the Court has held that privacy is only invaded by revealing previously concealed information.  See The Digital Person 42-44 (2004), Understanding Privacy 106-12 (2008).  I have argued that privacy can be invaded even by public surveillance.  More recently, in Nothing to Hide 178 (2011), I argued:

The problem with the secrecy paradigm is that we do expect some degree of privacy in public.  We don’t expect total secrecy, but we also don’t expect somebody to be recording everything we do. Most of the time, when we’re out and about, nobody’s paying any special attention to us. We do many private things in public, such as buy medications and hygiene products in drug stores and browse books and magazines in bookstores. We expect a kind of practical obscurity—to be just another face in the crowd.

In Justice Alito’s concurring opinion, he seemingly recognizes both of the concept of aggregation and the fact that the extent of the surveillance matter more than merely whether it occurs in public or private:

Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.  But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.  For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.

Justice Sotomayor discusses this passage with approval in her concurrence, indicating five votes for this view.  Indeed, she would go even further than Justice Alito.

I see profound implications in Jones for the future direction of the Fourth Amendment and privacy law more generally.  I explain this in detail in a recent essay, United States v. Jones and the Future of Privacy Law: The Potential Far-Reaching Implications of the GPS Surveillance Case, Bloomberg BNA Privacy & Security Law Report (Jan. 30, 2012).  From the essay:

The more contextual and open-ended view of privacy articulated by Justice Alito has five votes on the Court.  This is a sophisticated view of privacy, one that departs from the antiquated notions the Court has often clung to.  If this view works its way through Fourth Amendment law, the implications could be quite profound.  So many of the Court’s rationales under the reasonable expectation of privacy test fail to comprehend how technology changes the dynamic of information gathering, making it ruthlessly efficient and making surveillance pervasive and more penetrating.  We might be seeing the stirrings of a more modern Fourth Amendment jurisprudence, one that no longer seems impervious to technological development.

I continue:

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7

United States v. Jones, A Step Back for Rights

I appreciate the chance to engage with CoOp readers on the United States v. Jones case.  I wrote an Op Ed for the Baltimore Sun, so here’s what I have to say.

I really wanted to love the Supreme Court’s decision Monday in United States v. Jones. As one deeply committed to personal liberty and restrained government, what’s not to love when the nation’s highest court finds the police must obtain a warrant before continuously tracking the citizenry with installed GPS devices?  Unfortunately, the answer is “plenty.”

The Supreme Court in Jones could have categorically denounced intrusive government monitoring in the mold of the Orwellian state. It didn’t. And so, while the result in Jones is being roundly celebrated in many quarters, there remain good reasons for privacy fans to hold our applause.

Acting on suspicions that Antoine Jones was selling drugs, the government attached a GPS device to his car. From that device, police computers received a steady stream of information about the car’s location for 28 days. In all, more than 2,000 pages of location data were transmitted. Some of the data linked Mr. Jones to a house where substantial quantities of drugs and money were found. Mr. Jones was consequently charged with drug trafficking offenses. The trial court held that most of the data gleaned from the GPS device was admissible.

Commendably, the Supreme Court reversed that decision and declared the GPS monitoring of Mr. Jones unconstitutional. In doing so, however, the court refused to answer the long-standing question of constitutional limits on the Orwellian state. The case was an opportunity for the court to announce that round-the-clock surveillance of citizens without a warrant offends Fourth Amendment guarantees. Instead, the court based its analysis upon the narrower observation that the police attached a device to Mr. Jones’ car. The Supreme Court’s reluctance is understandable; the broader questions are complex and not easily resolved. But, now more than ever, advances in technology make pressing the need to confront the questions head on.

The court’s refusal to tell us whether the Constitution protects us from suspicion-less government monitoring is alone cause for frustration. But perhaps as troubling is the language the court used to accomplish its elusion. Read More
2

Barry Friedman on United States v. Jones

Professor Barry Friedman’s opinion piece in the New York Times on Jones is characteristically insightful: we’ve featured his work in our Bright Ideas series and other posts.  His piece adds an important layer to, and echoes, the conversation our experts have been having this past week.  If you haven’t seen it, here it is:

EVERY day, those of us who live in the digital world give little bits of ourselves away. On Facebook and LinkedIn. To servers that store our e-mail, Google searches, online banking and shopping records. Does the fact that so many of us live our lives online mean we have given the government wide-open access to all that information?

The Supreme Court’s decision last week in United States v. Jones presents the disturbing possibility that the answer is yes. In Jones, the court held that long-term GPS surveillance of a suspect’s car violated the Fourth Amendment. The justices’ 9-to-0 decision to protect constitutional liberty from invasive police use of technology was celebrated across the ideological spectrum. Read More

9

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read More

2

Jones is a Near-Optimal Result

Thanks to Danielle for inviting me to post my thoughts. I’ll try to come up with some new, original thoughts in a later post, but to start, let me offer an abridged version of what I posted yesterday on my home blog, Freedom to Tinker.

I think the Jones court reached the correct result, and I think that the three opinions represent a near-optimal result for those who want the Court to recognize how its present Fourth Amendment jurisprudence does far too little to protect privacy and limit unwarranted government power in light of recent advances in surveillance technology. This might seem counter-intuitive. I predict that many news stories about Jones will pitch it as an epic battle between Scalia’s property-centric and Alito’s privacy-centric approaches to the Fourth Amendment and quote people expressing regret that Justice Alito didn’t instead win the day. I think this would focus on the wrong thing, underplaying how the three opinions–all of them–represent a significant advance for Constitutional privacy, for several reasons:

  1. Justice Alito?
  2. Maybe I’m not a savvy court watcher, but I did not see this coming. The fact that Justice Alito wrote such a strong privacy-centric opinion suggests that future Fourth Amendment litigants will see a well-defined path to five votes, especially since it seems like Justice Sotomayor will likely provide the fifth vote in the right future case.

  3. Justice Scalia and Thomas showed restraint.
  4. The majority opinion goes out of its way to highlight that its focus on property is not meant to foreclose privacy-based analyses in the future. It uses the words “at bottom” and “at a minimum” to hammer home the idea that it is supplementing Katz not replacing it. Maybe Justice Scalia did this to win Justice Sotomayor’s vote, but even if so, I am heartened that neither Justice Scalia nor Justice Thomas thought it necessary to write a separate concurrence arguing that Katz’s privacy focus should be replaced with a focus only on property rights.

  5. Justice Sotomayor does not like the third-party doctrine.
  6. It’s probably best here just to quote from the opinion:

    More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U.S., at 742; United States v. Miller, 425 U.S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “dimunition of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

    Wow. And Amen. Set your stopwatches: the death watch for the third-party doctrine has finally begun.

  7. The wrong case for a privacy overhaul of the Fourth Amendment.
  8. Most importantly, I’ve had misgivings about using Jones as the vehicle for fixing what is broken with the Fourth Amendment. GPS vehicle tracking comes laden with lots of baggage–practical, jurisprudential and atmospheric–that other actively litigated areas of modern surveillance do not. GPS vehicle tracking happens on public streets, meaning it runs into dozens of Supreme Court pronouncements about assumption of risk and voluntarily disclosure. It faces two prior precedents, Karo and Knotts, that need to be distinguished or possibly overturned. It does not suffer (as far as we know) from a long history of use against innocent people, but instead seems mostly used to track fugitives and drug dealers.

    For all of these reasons, even the most privacy-minded Justice is likely to recognize caveats and exceptions in crafting a new rule for GPS tracking. Imagine if Justice Sotomayor had signed Justice Alito’s opinion instead of Justice Scalia’s. We would’ve been left with a holding that allowed short-term monitoring but not long-term monitoring, without a precise delineation between the two. We would’ve been left with the possible new caveat that the rules change when the police investigate “extraordinary offenses,” also undefined. These unsatisfying, vague new rules would have had downstream negative effects on lower court opinions analyzing URL or search query monitoring, or cell phone tower monitoring, or packet sniffing.

    Better that we have the big “reinventing Katz” debate in a case that isn’t so saddled with the confusions of following cars on public streets. I hope the Supreme Court next faces a surveillance technique born purely on the Internet, one in which “classic trespassory search is not involved.” If the votes hold from Jones, we might end up with what many legal scholars have urged: a retrenchment or reversal of the third-party doctrine; a Fourth Amendment jurisprudence better tailored to the rise of the Internet; and a better Constitutional balance in this country between privacy and security.

1

Welcoming Experts to Discuss the Supreme Court’s Decision in United States v. Jones

As my co-blogger Dan Solove noted, the Supreme Court ruled in United States v. Jones, finding the warrantless GPS surveillance of a car unconstitutional.  There’s much to discuss about the majority opinion written by Scalia (with Roberts, Thomas, Kennedy, and Sotomayor), a concurrence written by Sotomayor, and a concurrence by Alito (with Ginsburg, Breyer, and Kagan).  We’re lucky to have experts on board to help us sort it out: Margot E. Kaminski, Executive Director of the Yale Information Society Project and Research Scholar and Lecturer at Yale Law School whose scholarship focuses on civil liberties, privacy, and surveillance, guest blogger Paul Ohm, Associate Professor of Law at the University of Colorado School of Law and former computer programmer and network systems administrator who has authored many important pieces on privacy and surveillance, and Priscilla “Cilla” Smith, Senior Fellow at the Yale Information Society Project who has co-authored “When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches,” 121 The Yale Law Journal Online 177 (2011) (with Nabiha Syed, David Thaw and Albert Wong).   In a week or so, we will also be hearing from my colleague Renée Hutchins, Associate Professor of Law at the University of Maryland Francis King Carey School of Law, whose article Tied Up in Knotts?” GPS and the Fourth Amendment, 55 UCLA Law Review 1 (2007) appeared in many district and Court of Appeals decisions wrestling with warrantless GPS tracking on cars.